author: SHORT, P. J. GREENWOOD and PIERSON, JJ.

text:
    GIBBS et al. v. LESTER et al.
    No. 1283-5750.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    E. J. Pickens, of Canadian, and Works & Bassett and Cooper & Lumpkin, all of Amarillo, for plaintiffs in error.
    Trulove & Frazee, of Amarillo, and Hoover & Cussen, of Canadian, for defendants in error.
   SHORT, P. J.

This suit involves the title and right to the possession of the John Gibbs Survey of land situated in I-Iutehison county. It was filed by the plaintiffs in error against the defendants in error in the district court of that county on June 28, 1926. The plaintiffs in error, other than A. S. Burleson and A. A. Lumpkin, claim to be the owners of-the land sued for as the heirs of John Gibbs, and the plaintiffs in error Burleson and Lumpkin claimed under the heirs of John Gibbs. The defendants in error claimed the land under and by virtue of the five and ten year statute of limitation. Upon the trial of the case the court submitted to the jury, after defining what constituted tire five and ten year statute of limitation (Rev. St. 1925, arts. 5509, 5510), and after defining what is meant by peaceable and adverse possession, the case upon special issues. The jury found that the plaintiffs in error were the heirs and vendees of the heirs of John Gibbs, the grantee in the certificate, by virtue of which the land was patented, but found in favor, of the defendants in error on the issues of limitation, and the court rendered judgment in favor of the defendants in error, based upon the findings of fact. Upon appeal to the Court of Civil Appeals, the judgment of the district court was affirmed. 24 S.W.(2d) 527. The writ of error was granted upon the conflicts alleged in the application by the plaintiffs in error.

While the defendants in error contended that the plaintiffs in error were not entitled to recover as the heirs of John Gibbs, and the vendees of such heirs, in view of the disposition we shall make of this ease, and the verdict of the jury, it will not be necessary to discuss that question. We will, assume that the plaintiffs in error held the record title to the land involved, and were entitled to recover the possession of jt,..unless, the def endants in_. error) .had, acquired - title' under the statut¿ o¿ either, the .five or ten year statute of^limitation. The trial developed that the defendants in error claimed under one John Glenn, who had a deed from one J. H. Truitt conveying the land in controversy to him in 1902. This deed was placed on record in 1903, 'and commencing with 1905, either John Glenn or his vendees, except a man by the name of Wright, who held a deed from John Glenn for a few weeks, when it was re-conveyed to John Glenn by right, who paid the taxes regularly, continuously claimed the land up to the time this suit was filed.

In 1914 the vendee of John Glenn, A. B. Carruthers, filed a suit in the form of trespass to try title against the plaintiffs in error, having apparently the purpose to establish his title under the statute of limitations. The plaintiffs in error, in this case, as defendants in error in that case, filed a general demurrer, a general denial, and a plea of not guilty. In 1915 this suit was dismissed by the plaintiffs, and another suit, in 1916, of a similar nature, was filed against the same parties as defendants, in the same court, where the original suit was filed, that is, in the district court of Hutchison county, and the plaintiffs in error, as defendants in that suit, again filed a general demurrer, general denial, and a plea of not guilty. This suit remained on the docket until 1924, when it was voluntarily dismissed by the plaintiffs. Then this suit was filed as above stated.

It may be conceded, for the purpose of discussing the question, that the defendants in error did not show, by a preponderance of the evidence, that they had acquired, as against the plaintiffs in error, the title either under the five-year statute of limitation or the ten-year statute of limitation to the land involved, should the time during which these suits -were pending, be excluded, in computing the time during which the defendants in error were in possession of the land; It tejjon-tended by the plaintiffs in error that when the'deFenclants In "error filed these suits, respectively, this stopped the running of the statute of limitation in their favor. While the testimony, as to the time these suits were so filed, and the time they were pending, and the character of the suits, was excluded from the consideration of the jury by the trial court, yet the bill of exception shows all of these facts without controversy. The assignments of error fully present the question, and in support of their contention, that the filing of these suits stopped the running of the statute of limitation, during their pendency, the plaintiffs in error present three eases which they claim sustain their contention, and as •being in conflict with the opinion of the Court of Civil Appeals in this ease, to wit: Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex. Civ. App.) 265 S. W. 403; Miller v. Gist, 91 Tex. 335, 43 S. W. 263; Cavitt v. Amsler (Tex. Civ. App.) 242 S. W. 246, 249. The opinion in the first case, by the Court of Civil Appeals of the Third District, did not reach the Supreme Court. The last case, which is also an opinion rendered by the Court of Civil Appeals, did reach the Supreme Court, and was dismissed for want of jurisdiction. In the other, an opinion was rendered by the Supreme Court itself. Before discussing these cases, we deem it proper to discuss the statutes and the opinions in some other cases rendered by the Supreme Court itself.

Article 5514, R. S. 1925, defines “peaceable possession” to be “such as is continuous and not interrupted by adverse suit to recover the estate.” Article 5515 defines “adverse possession” to be “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” The word “estate” in law means the degree, quality, nature, and extent of one’s interest or ownership of land or other tenements. It is the settled law of the state of Texas that a title by limitation, when perfected, is as good as a title by patent from the ''state. Statutes of limitation are founded upon the highest consideration of public policy, as- they are statutes of repose, and conducive to order and public tranquility, by quieting title, suppressing fraud, and supplying the deficiencies of proof arising from the antiqui-_ty of the transaction. In addition to having peaceable and adverse possession to a tract of land, in order to prosecute a title under the five-year statute, one must either cultivate or use or enjoy the same peaceably, openly, and uninterrupted for five consecutive years, and also by paying taxes thereon regularly each year, in the meanwhile claiming under a deed or deeds duly registered. One may also acquire a title by limitation, under the ten-year statute, by having peaceable and adverse possession of a tract of land described by an instrument of writing, properly recorded, cultivating, using, and enjoying the same for ten years. In order to stop the running of the statute of limitation, and interrupt the peaceable and adverse possession mentioned in the statute; the suit not only must be to recover “the estate,” but it must be an adverse suit. That is to say, a suit by some one claiming adversely to the person who, being in possession of the property, is claiming a title under the statute of limitations. Such a suit, as is mentioned in article 5514, must not only be “adverse” to the parties claiming the title under the statutes of limitation, that is, conflicting, antagonistic and hostile, to such person, but such suit must be huly prosecuted to final judgment. Shields v. Boone, 22 Tex. 193; Chambers v. Shaw, 23 Tex. 165; Highsmith v. Ussery, 25 Tex. Supp. 97; Hughes v. Lane, 25 Tex. 356; Edgar v. Galveston City Co., 46 Tex. 421; Connoly v. Hammond, 58 Tex. 11; Flanagan v. Pearson, 61 Tex. 302; Bigham v. Talbot, 63 Tex. 271; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609. While the limitation is interrupted by suit, an abandonment of the suit will have the same effect as if the suit had never been instituted. Upon the contrary, a suit prosecuted to effect against a tenant in possession, within ten years from the adverse entry by the landlord, breaks the continuity and avoids the defense of the ten-year limitation when assorted by the landlord of such tenant, against the holder of the proper title. Stout v. Taul, 71 Tex. 438, 9 S. W. 329.

There are other decisions supporting the principle enunciated in the decisions we have mentioned, to the effect that -the entry of the true owner upon the land does not disturb the actual possession of the claimant, except that entry be manifested by the filing of an adverse suit in a court of competent jurisdiction against the claimant, and the prosecution of such suit to a final judgment upon the merits of the case, wherein the rights of the respective parties to the land involved are finally adjudicated. In other words, peaceable and adverse possession ce'ased only when such an adverse suit is filed, and the running of the statute of limitation is not interrupted, unless such adverse suit is prosecuted to final judgment.

Referring to the cases, which the plaintiffs in error contend are in conflict with the opinion of the Court of Civil Appeals in this case, we find that there is no real conflict when these cases are properly construed in. the light of the questioh involved. In Miller v. Gist, 91 Tex. 335, 43 S. W. 263, both parties claimed the land under a limitation title, and the court merely held that an unsuccessful suit, by one of such parties, did not affect his title by limitation against the rest of. the world. Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex. Civ. App.) 265 S. W. 403, 405, is distinguished from this case in several particulars. In that case, the parties prosecuted a suit to a final judgment in the Supreme Court, and it was merely held in that case that the statute of limitation was suspended between the filing, by one in possession, of a suit, in trespass to try title, and for adjudication of the right of possession, and the final judgment rendered by the Supreme Court. In that case, W. C. Belcher Loan & Mortgage Company was the owner of certain vendor’s lien notes, secured by a deed of trust on the land in controversy, the title to which was in Mahala Taylor, a widow, and in her children, as heirs of their deceased father. The Taylors repudiated the loan, and thereafter the mortgage company caused the land to be sold under the power given in the deed of trust, and became the purchaser of the land at the sale. Thereafter the Taylors, while in possession of the land, instituted suit against the mortgage company to cancel and annul the deed of trust and the trustee’s deed, the petition also .containing a count in the usual form .of a suit of trespass to try title. The mortgage company answered by a general denial, and a plea of not guilty. Judgment was rendered in that suit for the Taylors, annulling the deed of trust, and canceling the trustee’s deed, and further adjudging that they have the title and possession of the land in controversy. The mortgage company appealed from such judgment, which was affirmed. (Tex. Civ. App.) 173 S. W. 278. A writ of error was granted by the Supreme Court, and upon a hearing that court reversed the judgment of the trial court and of the Court of Civil Appeals and rendered judgment for 'the mortgage company, the general order being that plaintiffs take nothing by their suit, and that the defendant go hence without day, and with its costs. 212 S. W. 047. No writ of possession was awarded the mortgage company as successful defendant in that suit, since both the pleadings of the plaintiffs and itself admitted that it was in possession, although the Taylors were then, and had been for years thereto, in possession of the land in controversy, and remained so during the pendency of the appeal by the mortgage company. Thereafter a writ of possession was issued by the mortgage company, hut the slieriff refused to serve it without an indemnity.bond. The mortgage company then filed a suit in trespass to try title against the Taylors, being the same parties in the former suit, and involving the same land. The Tay-lors attempted to claim the land by limitation, and as a part of their claim sought to embrace the time during which the original suit was pending, and the court held that this could not be done under the facts shown by the record.

After quoting the statute defining “peaceable possession,” the court, in that case, says: “The rule announced on this question is that whore a claimant in possession of land brings an action to adjudicate his title and right of possession against another, who is asserting some right of title or possession, such action, when contested, suspends the running of limitation in favor of the occupant pending the final judgment.” As indicating the construction placed by the court by this language, which we have quoted, it quotes the following from 17 Ruling Case Law, 870, pars. 228 and 232:

“Where the character of legal proceedings is such that the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or, if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues. * * *
“An action is said to be pending, so far as suspending the statute is concerned, until the final disposition of the appeal. So an appeal which suspends the right to recover possession of land has been held to stay the running of the statute against an action to recover rents and profits pending such appeal. And, as a cause of action cannot be said to have accrued until an action can be instituted thereon, when the regularity of the proceedings for the condemnation of land, as well as the amount of damages due the owner, is pending on appeal, he cannot bring an independent action for such damages.”

This rule is necessarily a very just one. If a party commences legal proceedings, the character of which is such that the law restrained one of the parties from exercising the legal remedy against. another, common justice demands that these legal proceedings, being of such character, should not have the legal effect to protect the person who commenced them, and thereby prevent his adversary from exercising his legal remedy against him. The above-quoted excerpt from Ruling Case Law is also used by the court in its opinion rendered in Cavitt v. Amsler, supra, the opinion of which is claimed to be in conflict with the opinion in this case on this subject. In Cavitt v. Amsler, the court quotes from 25 Cyc. 1278, as follows: “Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations' have barred his right.”

In the case at bar, the plaintiffs in error were not prevented from exercising their legal remedy to institute an adverse suit against the defendants in error to recover the estate involved. Obviously, the plaintiffs in error had the right, in either of the suits brought against them by the defendants in error, to have filed a cross-action,in_the form of a trespass foTFy'title,' asking affirmative relief to remove the cloud cast by the claim to the land by the defendants in error, to adjudicate the title thereto, and to recover the possession thereof. This they did not do, and the defendants in error, in each instance, the record being in this condition, exercised their legal right to dismiss the case which had been brought against the plaintiffs in error. The court was under the duty to do as. the defendants in error requested in the absence of 'the filing of a cross-action in the form of a plea for affirmative relief.

Had the position of the parties been reversed in these two suits, and had the pleadings of the parties been the same, as reversed, and had the plaintiffs in error, as original plaintiffs, brought these suits in trespass to try title against the defendants in error to recover the estate here involved, and had they done as the defendants in error did, dismissed these suits, and thereafter brought a suit as they did bring one here, the legal principles applicable to this question, as applied to the parties, would have been the same. Had such been the state of the record, plaintiffs in error could not have excluded the time, during which these suits were pending, so as to bar the defendants in error from their fights, as claimants and occupants of the land, to set up a title by limitation during the time these suits were pending, which were afterwards dismissed. It is well to remember that article 5514, R. S. 1925, is couched in substantially the same language as was used in the original state of 1836. This language defines the phrase “peaceable possession,” and this phrase has reference to the status of a person in possession of land, under a claim of right, maturing under the statute of limitation. Where a person is in peaceable possession of a tract of land, under a claim of right, and that peaceable possession is continuous, and is not “interrupted by adverse suit to recover the estate,” the meaning of this statute evidently is that this “peaceable possession” of this actual occupant, under such claim, when continued a sufficient length of time, matures an otherwise defective title into a perfect one, other conditions of the statute being present, unless within the time prescribed by the statute of limitation, the owner of the record title, or other person having the superior title to the land involved, interrupts this peaceable possession by instituting an “adverse suit to recover the estate,” Theoretically speaking, the owner of lands in Texas, evidenced by a record title, emanating from the sovereignty is always in constructive possession of his property. This constructive possession, so evidenced, continues until it has been broken by an actual entry upon the land by another under a claim of right, followed by an actual and visible appropriation of the land, which is'inconsistent with, and hostile to, the claim of another. Even then, though the constructive possession of the true owner is broken, his title is not destroyed, but remains intact and of sufficient force and vitality to enable the owner to protect his property by virtue thereof-against the claim of one in actual possession, asserting dominion over the land, provided only the owner of this record -title shall, within the time prescribed by •law, interrupt the possession which had previous to that time been “peaceable” on the part of the actual occupant, by instituting in a court of competent jurisdiction, an adverse suit to recover the estate and prosecute such suit to a final judgment. However, should the owner of the record title, or other owner of the superior -title, neglect to protect his property, within the time prescribed by law, and in the manner so prescribed, and in the meantime the actual occupant of the land remain in “peaceable possession,” and actually and visibly appropriate -the land, under a claim inconsistent with and hostile to the claim of another, for the length of time prescribed by law, other conditions of the statute being present, the owner of the record title, or other superior title, ceases to have a cause of action against the actual occupant of the land, who had in the meantime become the real owner, by virtue of this neglect of the original real owner. The law does not impose any such duty on the part of one who seeks to acquire title to land under statute of limitations. It does not require him to institute any character of suit against any one, though, of course, it does not prohibit him from doing so. Since statutes of limitations are founded upon considerations of a sound public policy, and are statutes of repose, the courts liberally construe them in favor of those claiming lands by virtue of these statutes. “The general doctrine is well settled,” says Judge Bell, in Shields v. Boone, 22 Tex. 197, “that a suit voluntarily abandoned, does not interrupt the statute of limitations,” and he quotes Angelí on 'Limitations, par. 327, a recognized authority on this subject and the cases there cited. Judge Bell further says in that case: “the language of the statute is as follows: ‘Peaceable possession, within the scope of this act, is such as is continuous, and not interrupted by adverse suit to recover the estate.’ ” Among other things, discussing the statute, he says: “But, even in a -strictly literal sense, it may be said, that ‘a suit to recover an estate,’ necessarily involves the idea of a prosecution of -the suit to effect. It cannot be supposed, that laws would be enacted, in reference to a thing so idle as the commencement1 of suits, and -the voluntary abandonment of them. It would be charging the legislature with great folly,, to suppose that they ever intended to enact, that the institution of a suit, and the voluntary abandonment of it, could secure -to a party any rights. Much less can we suppose that the legislature intended, in the enactment of a law for the avowed purpose of protecting persons who have held estates for a certain length of time, to declare that suits instituted and voluntarily abandoned, would have the effect to stop the running ■ of the statute in favor■ of those, whose possession, it was the odjeet of the lawmakers to protect. [Italics ours.] The object of the lawmakers, in the clause before us, was to define what is meant by a peaceable possession. Their minds were not particularly directed to the subject of the interruption of the statute.” This doctrine, construing this statute, by Judge Bell, .in Shields v. Boone, had -been declared to be the law by the Supreme Court of this state in every case, wh'erein the question has’ been presented since that time.

We believe that the trial court was correct in refusing -to admit proof of these suits, that had been instituted by the defendants in error against the plaintiff in error in the form of trespass to try title, and which involved this particular land, and which were after-wards dismissed by the original plaintiffs at a time when the original defendants had not filed any cross-action in either of them, asking affirmative relief against the original plaintiffs, because such proof so offered did not tend to establish any material issue in the case, and it was irrevelant and immaterial.

The plaintiffs in error present other assignments of error, the effect of which is to say that the -testimony offered by the defendants in error, in support of their pleas under the five-year statute of limitation, and also under the ten-year statute of limitation when considered most favorably, in support of the findings of fact by the jury, are insufficient to sustain these findings and the judgment rendered -thereon. The plaintiffs in error strenuously contend in their briefs that the court erred in submitting question No. 3, and that the jury, in answering question No. 3 in the affirmative, as it did, did sp without having any testimony before them to support it.' Question No. 3 asks the jury to determine whether John Glenn had the peaceable possession of the lands in controversy, prescribed by the statute, for a period of five years at any period before the filing of this suit, under a deed duly registered, the meanwhile regularly paying all taxes and cultivating, using, and enjoying it. We do not think it necessary to pass on this specific contention, because the jury has answered that A. B. Carruthers, and those under whom Carruthers claimed, had the peaceable possession of the land in controversy, cultivating, using, and enjoying the same, and regularly paying all taxes thereon, and claiming under deeds duly registered for the period of five years at some period prior to the filing of this suit, it appearing that Carruthers purchased the land from John Glenn and went into possession of it by virtue of the deed which Glenn executed and delivered to him, which deed was duly recorded, and that he paid taxes regularly on the land, and used it continuously for more than five years, though the testimony does show that there were occasional temporary breaks in the actual possession. Moreover, the jury also found, in answer to question No. 5, that Carruthers and those under whom he claimed, and Carruthers’ vendees, had peaceable and adverse possession of the land in controversy, cultivating, using, and enjoying the same continuously for a period of ten years, at some period before the filing of this suit. We think the jury was justified, under the testimony, in finding the facts which they did, in answer to issue Nos. 4 and 5. There was testimony which the jury were justified ip believing that A. B. Carruthers and his vendor, John Glenn, had and held possession of said land for more than five years, meeting all'the requirements of the statute; in this, that Carruthers, in privity with Glenn, held from January 1, 1905, until he sold the land to Davis, on January 1, 1917, which is a period of twelve years, any consecutive five years of which is sufficient to sustain the jury’s verdict in answer to special issue No. 4. Again A. B. Carruthers, or he and his vendor, or he and his vendees, had and held said land for more than ten years prior to the filing of this suit, meeting all requirements of the statute, in that Glenn went into possession, fencing the land, and began using the same in January, 1904, which use, possession, and occupancy continued until October 20, 1909’, when he sold to Carruthers, who in turn continued, without any interruption sufficient to break its continuity, the possession, use, occupation, and enjoyment until he conveyed to Davis, January 1, 1917, and Davis in turn continued in said use until April, 1917, when the land was acquired by Lester, who in turn continued said use, possession, and enjoyment until June 26, 1926, the date of the filing of this suit, covering a period of twenty-two years, any consecutive ten of which is sufficient to sustain the jury’s verdict in answer to the court’s special issue No. 5.

While there are other assignments of error presented in the application, the Questions involved are sufficiently discussed by the Court of Civil Appeals in its opinion. This opinion correctly disposes of every question presented by the plaintiffs in error, and in such way that we do not deem necessary any further discussion of them.

We recommend that the judgments -qf the Court of Civil Appeals and of the district court be affirmed.

GREENWOOD and PIERSON, JJ.

Judgments of the district court and Court of Civil Appeals affirmed.

CURETON, C. J., not sitting.


source: Caselaw Access Project

author: SHORT, P. J. CURETON, C. J.

license: Public Domain

text:
    THOMPSON v. FIRST METHODIST EPISCOPAL CHURCH OF DALLAS et al.
    Motion No. 9661; No. 1258-5646.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    For former opinion, see 38 S.W.(2d) 561.
    Niblo & Dodd, of Dallas, for plaintiff in error.
    Tom _ C. Clark, and Thompson, Knight, Baker & Harris, all of Dallas, for defendants in error.
   SHORT, P. J.

The defendant in error has filed its motion for a rehearing in this case, and, among other things, stated that*we erred in holding that

the Court of Civil Appeals had found, as a matter of law, that there was no evidence legally sufficient to charge it with notice of the alleged assignment to plaintiff, in error, and followed this erroneous holding with the commission of another error, after reversing the judgment of the Court of Civil Appeals, affirmed the judgment of the district court, which, in effect, was passing upon a question^ of fact solely within the jurisdiction of the'Court of Civil Appeals. In other words, the motion calls our attention to the fact that the Supreme Court is without jurisdiction to substitute its finding of fact for the finding of fact by the Court of Civil Appeals, and that, the cause having been remanded by the Court of Civil Appeals for a new trial, it is conclusively presumed that the court did find, as a fact, that the evidence was insufficient to support the findings of the jury; and that it is the duty of the Supreme Court to respect the judgment of the Court of Civil Appeals, which reversed and remanded the cause. The motion, among other authorities, cites Pounds v. Minter (Tex. Com. App.) 13 S.W.(2d) 351, 352, wherein this language is used: “While the Court of Civil Appeals held [3 S.W.(2d) 830] in effect (incorrectly, as we think) that the verdict of the jury is not supported by any evidence, it also necessarily held that the evidence is insufficient to support the verdict. The Supreme Court has the authority to determine whether the Court of Civil Appeals has correctly held that no evidence was produced to sustain the verdict Of a jury, but it has not the authority to overrule the conclusion of the latter court that the evidence is not sufficient to do so. Having sustained the assignments of error with the record in this condition, in so far as the judgment of the Court of Civil Appeals reverses that of the district court, it should be affirmed, but in all other respects it should be reversed, and the cause remanded to the district court for another trial, and we so recommend.” The same member of the Commission of Appeals wrote the opinion in the case of Pounds v. Minter and also the opinion in this ease, and, as a different disposition was made of the matter in this ease than was made in the case of . Pounds v. Minter, though the same situation existed in this case as in the other, and since the Supreme Court adopted the opinion in the ease of Pounds v. Minter, it necessarily follows that this part of the motion must be sustained. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Fifth National Bank v. Iron City National Bank, 92 Tex. 436, 49 S. W. 368; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030; Maddox Motor Co. v. Ford Motor Co. (Tex. Com. App.) 23 S.W.(2d) 333; Ætna Casualty & Surety Co. v. Russell (Tex. Com. App.) 24 S.W.(2d) 385; Coffman v. Ry. Co. (Tex. Com. App.) 23 S.W.(2d) 304; Western Union Tel. Co. v. Rutledge (Tex. Com. App.) 15 S.W. (2d) 210; Robertson v. Vernon (Tex. Com. App.) 12 S.W. (2d) 991; Reddell v. O’Field (Tex. Com. App.) 6 S.W.(2d) 92; Sprinkles v. Kerbow (Tex. Com. App.) 279 S. W. 805; Martinez v. Vidaurri (Tex. Com. App.) 275 S. W. 999.

Having erroneously recommended to the Supreme Court that the judgment of the Court of Civil Appeals be reversed and that of the district court affirmed, we now recommend that the motion for rehearing be granted and that judgment heretofore entered herein be set aside, and that the judgment of the Court of Civil Appeals, 22 S.W.(2d) 346, reversing the judgment of the district court and remanding the case for another trial, be affirmed.

CURETON, C. J.

Motion for rehearing granted, previous judgment set aside, and the judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


author: SHARP, J. CURETON, C. J.

text:
    HIGGINBOTHAM CATTLE CO. v. WHALEY & LEWIS et al.
    No. 1475-5726.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      Lockhart, Garrard & Brown, of Lubbock, for plaintiff in error.
    Douglas & Scott and Bledsoe, Crenshaw & Dupree, all of Lubbock, for defendants in error.
   SHARP, J.

R. W. Higginbotham and J. M. Higgin-botham, doing business as the Higginbotham Cattle Company, brought this suit in the district court of Lubbock county against J. C. Whaley and W. T. Lewis, to recover rents alleged to be due upon a written contract for the lease of certain lands situated in New Mexico. At the conclusion of the evidence the trial court instructed the jury to return a verdict in favor of the defendants Whaley & Lewis, against the plaintiff, and in favor of E. G. Rail as against the defendants, which was done. Higginbotham Cattle Company appealed to the Court of Civil Appeals and the judgment of the trial court was affirmed.

For convenience and sake of brevity we refer to the opinion of the Court of Civil Appeals. 26 S.W.(2d) 308.

Upon application of the Higginbotham Cattle Company, the Supreme Court granted a writ of error to review the opinion of the Court of Civil Appeals.

Plaintiffs in error contend:

(a) That the contract sued upon was ambiguous, vague, indefinite, and uncertain, and that the Court of Civil Appeals erred in holding that the contract herein sued upon as to the leasehold interest and privileges described therein was not ambiguous and uncertain to the extent that parol testimony should have been admitted to explain the uncertainty, and that the trial court did not err in excluding such testimony.

(b) That the Court of Civil Appeals erred in holding that the trial court did not err in excluding tlie testimony offered by the plaintiffs in error to show that the leasehold interest and privileges were that the plaintiffs in error were conveying to the defendants in error by the contract herein sued upon, when such evidence would have shown that the plaintiffs in error were merely leasing to the defendants in error 1,400 acres which it had acquired by leasehold rights from R. O. Rogers and Sam Rogers, and certain leasehold rights and privileges to other lands so that the total covered by said lease was forty sections, and that the leasehold interest and rights referred to in the contract were merely intended to cover any privilege that the plaintiffs in error had to graze the unappropriated lands over and above the 1,400 acres, to use the same until appropriated, used, and fenced out by the rightful owners thereof, and that defendants in error knew that plaintiffs in error had no right to any land other than the 1,400 acres owned by R. O. and Sam Rogers other than that they had been using all the lands in the inclosure containing about forty sections, and that the defendants in error made the contract knowing that plaintiffs in error had no right to the other lands except they were grazing it unmolested by the owners, and the defendants in error knew that they were likely to lose said other lands at any time the rightful owner should claim and appropriate same, and made and entered into such contract with such knowledge.

The contract sued upon is as follows:

“Whereas the undersigned Higginbotham Cattle Company is lessee under R. O. Rogers and Sam Rogers and wife, Dovie Rogers of those certain lands hereinafter described with right to assign same and sublet the said premises:
“Therefore, the said Higginbotham Cattle Company, here called lessor, does by this instrument lease and let unto Whaley & Lewis, a firm composed of J. C. Whaley and W. T. Lewis, for a period of five years from this date, that certain premises situated in Roosevelt County, New Mexico, being known as the Six Shooter and Anderson pastures, located about forty miles south of Portales, consisting of about 1400 acres of lands owned by said R. O. and Sam Rogers, and certain leasehold interests and privileges, so that the total lands in said pastures and covered hereby amount at this time to about 40 sections of land, and being the same lands leased to said lessors herein by said R. O. and Sam Rogers and Dovie Rogers on the 26th day of October 1925, and this lease covers and includes all improvements on said lands.
“The agreed rental is $1250.00 per year the same payable annually in advance; and if default foe made in the payment of any rental when due, the lessors may terminate this lease contract and all rights of the lessees hereunder, without prejudice to th'eir right to collect rents for the entire term, and may late immediate possession of the premises.
“The said Whaley & Lewis agree to become the tenants of said Higginbotham Cattle Company for the term above set out, as the said premises, and will pay the annual rentals to lessors at Lubboch, Texas.
“The lessees to use said lands for stock-raising and farming purposes.
“Privilege is here given the lessees to assign this lease, or sublet the premises or any part thereof.
“Witness the signatures of the parties hereto this the Slst day of October 1925, the said Higginbotham Cattle Co., acting by T. X White, and the said Whaley & Lewis, acting by W. T. Lewis.
“Higginbotham Cattle Company
“By T. J. White,
“Whaley & Lewis,
“By W. T. Lewis.”

The pleadings are voluminous, but we will copy enough therefrom to show the issues raised.

Plaintiffs in error in their supplemental answer and in their trial amendment, among other things, alleged as follows:

“Plaintiff denies all the allegations contained in paragraph three of the answer of the defendants, Whaley and Lewis; and admits only that part of paragraph four of the defendants’ First Amended Original Answer, as follows: ‘That of the forty sections of land purported to be leased by the contract sued upon by plaintiffs herein, the recited owners thereof (R. O. and Sam Rogers, and wife, Dovie Rogers) only owned about 1400 acres of land, and that they had no sort of ownership, leasehold title, or any other right or interest in the remainder “Squatter Sovereignty” as hereinafter alleged, but that the other lands were simply unoccupied, vacant, unfeneed and unimproved wild range which the said Rogers families had¡ for years prior thereto used for grazing purposes, but simply because the true owner thereof did not.evict them. That said grazing right on said additional sections was at the time valuable because it afforded good cheap range, and the only available water for use by cattle grazing upon such forty sections could be gotten only from wells upon the 1400 acres actually owned by said R. O. and Sam Rogers’ and in this connection the plaintiff would represent and show to the Court that the defendants Whaley and Lewis, knew all the time that such country was merely open range controlled only by the' water on the 1400 acres actually owned by R. O. and Sam Rogers, and that said Whal-ey and Lewis knew all the time the exact condition of the Six Shooter and Anderson pasture, and the lands therein, and knew that they might at any time have to give up said lands other than the 1400 acres belonging to the Rogers; that as long as they could use said pastures and lands it was cheap pasturage, and, with full knowledge of all the facts and with their eyes open, they made the contract of lease herein sued upon, thereby hoping that they might keep said free range for the full term of five years.”

“Blaintiff says that the leasehold interest and privileges in and to the 40 sections of land described in the contract herein sued upon, and also described in the contract of the plaintiff with R. O. and Sam Rogers, on the 26th day of October, 1925, and which were leased to defendants, Whaley and Lewis, is vague, indefinite and uncertain, is contradictory, and said contract does not state what kind or character of lands are leased, and the amount leased, or what kind or character of privilege plaintiff and R. O. Rogers and Sam Rogers had to such lands or the amount and description of such lands that such privileges covered and such contract being so vague, indefinite, contradictory, uncertain and of such doubtful meaning, and is not of such nature as to ascertain the intention of the parties and the plaintiff asks the court to receive parol testimony explaining such defect and the real intention of the parties, and in this connection plaintiff would represent to the Court that of the lands so leased, it only had the lease on the 1400 acres belonging to R. O. and Sam Rogers ori which the water was located, and that the balance of 40 sections of land or thereabouts was simply open range, vacant and unleased and as plaintiff believes was part State lands that could not be leased; that all such lands were under an enclosure made by fences of this plaintiff and fences of other parties, part of such lands under such enclosure being as far as ten miles from water and the privileges that the said R. O. and Sam Rogers had and gave to this plaintiff was simply to use and graze said lands and that it was such privileges as were enjoyed by the cowmen generally of {hat section whose rights in that respect none of the cowmen interfered with and all that said R. O. Rogers and Sam Rogers had or all that plaintiff had was the right and privileges under such, state of facts, all of Which defendants Whaley and Lewis knew and recognized and bought said lease with full knowledge and acquiescence thereto. They knew that such lands might later be appropriated by the true owners at some time later and took such lease well knowing such facts.”

“That the leasehold interest and privileges referred to in paragraph two of the contract herein sued upon, and the lands leased from E. O. and Sam Rogers of date October 26th, 1925, was only 1400 acres belonging to the Rogers, and the balance of the lands and rights and privileges leased was the right to use the land under fence in the enclosure with the 1400 acres in the Six Shooter and Anderson pastures, was -simply the right and privilege of using said forty sections in such enclosures as free range until the rightful owners should claim same and such rights and privileges to use said pastures unmolested by other and being the owners of the water in said pastures, it was understood and agreed and the general acceptance of the cowmen that one would not be molested in Ms enjoyment of such privileges by other cowmen, and the defendant, Whaley and Lewis, knew and understood fully that the plaintiff only owned 1400 acres of land upon which part of water was located and that tile leasehold rights and privileges was simply the right and privilege general and common among cowmen to use dry lands free and not be interfered with by other cowmen and none but rightful owners.”

Plaintiffs in error in connection with the contract dated October 31, 1925, executed by Higginbotham Cattle Company and Whaley & Lewis, offered in evidence the following contract between R. O. Rogers et al. and Higginbotham Cattle Company, which reads as follows:

“R. A. Rogers and Sam Rogers and wife Dovie Rogers, for a valuable consideration to them paid by the Higginbotham Cattle Company, do hereby lease and let unto the said Higginbotham Cattle Company their ranch situated in Roosevelt County, New Mexico, about 40 miles South of Portales, and known as the ‘Six Shooter and Anderson Pastures,’ consisting of about 1,400 acres owned by the lessors and including such leasehold rights and privileges as they may have in and to the remainder of the land situated in said pastures, there being.now about forty (40) sections of land in said pastures.
“The said Higginbotham Cattle Company agrees to use said premises for grazing and farming purposes during the term; and said company shall have and it is hereby given the privilege of subletting or subrenting said premises or any part thereof during the term hereof without the consent of the lessors. Said lease being for five years from date of contract.
“Witness our hands, this October 26, 1925.
“R. O. Rogers
“Sam Rogers
“Dovie Rogers, Lessors.
“Higginbotham Cattle Co.,
“By J. M. Higginbotham.”

Plaintiffs in error tendered also as a witness T. J. White and offered to prove by him and he would have testified, if permitted by the court, substantially as follows: That he made all negotiations leading up to the execution of the contract herein sued upon, and executed the contract for Higginbotham Cattle Company; that the leasehold interest and privileges described in the contract were simply the privilege of using the open, unappropriated lands under the inclosure with the 1,400 acres belonging to the Higginbotham Cattle Company and acquired from R. O. and Sam Rogers and other than the 1,400 acres belonging to them; that the witness would have testified that it was the custom of the cow men in that section to respect one another’s rights with reference to not interfering with range held or claimed by another; that the water rights on the lands owned or under lease by the Higginbotham Cattle Company were valuable water rights; that such rights with the 1,-400 acres were all that was being leased and was all the land that was owned by the Higginbotham Cattle Company; that the defendants understood at the time they entered into the contract herein sued upon that the plaintiffs only had the control of the 1,400 acres set out therein and the water rights and did not own any other rights in and to the forty sections under the enclosure other than the right to use said land and graze it without molestation by any of the neighbors until such time as the real or rightful owner might claim or fence out such lands. The defendants in error objected to the introduction of the contract and the testimony of the witness White, and the court sustained the objections thereto and excluded same.

The rule is well established in this state that when there is no ambiguity in the terms of a written contract, parol evidence is inadmissible.

It is also equally well established that parol testimony is not admissible to vary a written contract; but that such evidence is admissible to explain an ambiguity or an uncertainty or to explain a writing when the explanation is necessary, and the evidence is consistent with the writing, and to ascertain the intention of the parties,' when doubtful, or to explain the language or terms used.

The pleadings and the proof tendered by plaintiffs in error raised the issue of fact as to what was Intended by tbe parties to the contract when the Higginbotham Cattle Company leased to Whaley & Lewis certain premises situated in New Mexico and “oertam leasehold interests and privileges, so that the total lands in said pastures and covered hereby amount at this time to about J¡0 sections of land, and being the same lands leased to said lessors herein by said R. 0. and Sam Rogers and Dovie Rogers on the 26th day of October 1925.” (Italics ours.)

The language of this contract respecting the property leased is practically the same as that contained in the contract dated October 26, 1925, from R. O. Rogers et al. to Higginbotham Cattle Company. There is no uncertainty as to the 1,400 acres owned or controlled by the Rogers and acquired by lease from them by the Higginbotham Cattle Company, but as to the further clause just quoted above, without some explanation, it would be utterly impossible to. ascertain what was intended by the parties to that contract, or what “certain leasehold interests and privileges” embraced. When explained it raises an issue to be determined as to what the parties intended. If Whaley & Lewis agreed to lease from the Higgin-botham Cattle Company 1,400 acres of land, about which there was no question as to .the ownership and possession thereof, and other lands which were open and unappropriated and the possession and title thereto questionable and the consideration was based upon those conditions, and the lease executed in the light of those circumstances, plaintiffs in error were entitled to prove that fact. The contract executed by the Higgin-botham Cattle Company to Whaley & Lewis dated the 31st day of October, 1925, refers to the contract dated October 26, 1925, from R. O. Rogers et al. to the I-Iigginbotham Cattle Company, and refers to same in such a manner as to make them closely connected, and should be considered in connection one with the other. Not only was it permissible to introduce parol testimony as to what was intended by the parties in the contract dated October 31, 1925, the terms used therein being ambiguous, but the contract dated October 26, 1925, was also admissible, in order to show the true intention of the- parties at the time the lease was executed.

Under the state of this record, which involves a lease covering 1,400 acres of land and the use of other terms above quoted, which terms are ambiguous, evidence as to what “certain leasehold interests and privileges” were to embrace, as understood by the parties executing the lease contract, was admissible , for the purpose of showing the understanding of each party as to the meaning of the written contract, in accordance with the settled rule that to explain the meaning of the parties to an ambiguous contract, the situation of the parties, what they intended by the lease, and the surrounding circumstances may all be looked to. If Whaley & Lewis knew the circumstances surrounding the land leased, the uncertainty of the uses thereof, and the consideration to be paid therefor was measured in the light of the facts, the rule announced by Judge Williams in the case of Welder v. McComb, 10 Tex. Civ. App. 85, 30 S.W. 822, would not apply. When we consider the facts involved in this case as compared with the facts involved in the case of Welder v. McComb, supra, there is a solid distinction in the two cases.

' Let us review briefly some of the authorities upon this question:

In the case of Smith v. Texas & N. O. Ry. Co., 101 Tex. 405, 108 S. W. 819, 820, Chief Justice Gaines, rendering the opinion for the court, held in effect that in a suit involving the question whether oil tank cars were included in the description of a mortgage conveying “all other property owned” by the mortgagor, evidence of the mortgagor that he explained to the mortgagee, and it was understood that the mortgagor did not own the cars, .was admissible, since the rule that parol evidence is not admissible to vary the terms of a written contract does not apply to eases of explanation of ambiguity. He says: “But it was contended on behalf of the receiver that the parties to the contract did not regard the tank cars as property ‘owned’ by the Equitable Land & Oil Company, and, in support of that contention, the plaintiff in error ‘offered in evidence the depositions of M. T. Brown to show that he, as general manager of the Equitable Land & Oil Co., negotiated and executed the mortgage or deed of trust referred to with W. H. Wilson, the general manager representing the National Supply Co., and at the time he fully explained to said Wilson the situation with reference to said cars, and that they had been sold to the Richmond Transportation Co., and that the said Wilson fully understood that they were not embraced in said mortgage; and, further, that by mistake the first draft of said mortgage or deed of trust did embrace said cars, and, on attention being called to it, the same was redrafted and reformed, and said cars left out of it.’ The evidence, upon objection, was excluded by the court, and in this we think there was error. Now, at the time of the execution of the deed of trust in question, it was a question of some nicety whether the cars in view of the contract that had been entered into for their conveyance could be said to be owned by the mortgagor in the deed of trust. It is an elementary rule that parol evidence is not admissible to vary the terms of a written contract. But when we come to apply the description of property in a eon-veyance, an ambiguity or a doubt is disclosed as to whether the property is embraced within the description, a different rule obtains, and it is. permissible to prove by oral testimony what property the parties meant to embrace.”

In the case of Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S. W. 184, 185, Judge Yantis, in rendering the opinion for the Supreme Court in that case, held, in effect, that where a written instrument is ambiguous or incomplete on its face, parol evidence is admissible to show that the real contract was to the extent necessary to remove the ambiguity and make the contract complete. In this opinion the following language is used: “The general rule is that parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written contract. But one of the exceptions to the general rule is that if the written instrument itself shows to be either ambiguous or incomplete, parol testimony is admissible to show what the real contract was to the extent necessary to remove the ambiguity, and to make the contract complete in its terms which show to be incomplete. The exception to the general rule is as well settled as is the rule itself. Jones, Commentaries on Evidence, § 484.”

See, also, the following cases: Kirk v. Brazos County, 73 Tex. 56, 11 S. W. 143; San Jacinto Oil Co. v. Ft. Worth Light & Power Co., 41 Tex. Civ. App. 293, 93 S. W. 173; Langford v. Power (Tex. Civ. App.) 196 S. W. 662; Hart v. Light & Jones (Tex. Com. App.) 245 S. W. 671; American Refining Co. v. Sims Oil Co. (Tex. Civ. App.) 282 S. W. 894; Quanah, A. & P. Ry. Co. v. Cooper (Tex. Civ. App.) 236 S. W. 811; Thorington v. Smith, 8 Wall. 1, 19 L. Ed. 361; Confederate Note Case, 19 Wall. 548, 22 L. Ed. 196; Porter v. McKinnon (Tex. Com. App.) 221 S. W. 574.

Many other cases could be cited.

From the foregoing it follows that in our opinion the pleadings and proof tendered raise an issue of fact to be determined as to what the parties intended by the language or terms used in the contract dated October 31, 1925, what property was to be included in the lease, and the conditions and circumstances under which it was included, that the evidence offered to that effect was admissible, and that the trial court and. Court of Civil Appeals were in error in holding to the contrary.

, Therefore, we recommend that the judgments of the trial court and of the Court of Civil Appeals be reversed and this cause remanded to the district court for another trial in accordance with this opinion.

CURETON, C. J.

Judgments of 'the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LEDDY, J. CURETON, C. J.

text:
    BEEMAN v. GEORGIA CASUALTY CO.
    No. 1287-5759.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.

      E. H. Cavin, of Houston, and Thomas O. Turnley, of Galveston, for plaintiff in error.
    Frank S. Anderson, of Galveston, for defendant in error.
   LEDDY, J.

H. J. Hetkes, a paving contractor, was a subscriber under the Workmen’s Compensation Law; the policy of insurance covering his employees was issued by defendant in error.

Plaintiff in error brought this suit against the defendant in error to set aside an order of the Industrial Accident Board by which he was denied compensation for personal injuries alleged to have been sustained while he was driving a team in the course of his employment with Hetkes.

Defendant in error’s defense to the cause of action thus asserted w;as that plaintiff in error was not, at the time he was injured, an employee of Hetkes, but was in the employ of Frank Jones, an independent contractor.

The case was tried to a jury and submitted upon special issues. The jury answered all special issues in favor of plaintiff in error. The only substantial question presented involves the finding made by the jury that at the time plaintiff in error received this injury he was an employee of Hetkes.

The trial court entered judgment in favor of plaintiff in error in accordance with the findings of the jury, awarding him compensation for total and permanent disability at the rate provided for in the compensation act. This judgment was reversed and rendered by the honorable Court of Civil Appeals of the First District, 24 S.W.(2d) 799, on the ground that there was no evidence of probative force to show that plaintiff in error was employed by Hetkes at the time he received the injuries for which compensation was awarded.

It appears that Hetkes had a contract with the city of Galveston to pave certain streets. In order to do this work, it was necessary that he use a number of teams in moving the dirt therefrom. He entered into a contract with Frank Jones to furnish teams at eighty-seven cents per hour, which were used in performing, this work.

On the day plaintiff in error received his injury, a team harnessed to a wagon was hitched on Twenty-Ninth street a few blocks from where the street grading work was being done. Plaintiff in error testified that Frank Jones told him to get on this wagon and drive the team down to where the street was being prepared for paving, and that he would find a man there who would tell him what to do. He thus describes the circumstances under which he was engaged to do the work he was performing at the time he was injured:

“I saw that team first that morning down on 29th street. I saw it at 29th and Nl/2. The team wasn’t doing anything when I first saw it; that was something after eight o’clock. The team wasn’t working, and there was nobody with it, it was just standing still. It was standing at N ½, 29th and N ½. The men were there and they had gone to work that morning when I first saw the team. Nobody didn’t tell me to go there that I knows of, nobody, I was looking for work. I said awhile ago that somebody told me to go down there and I could get work, the people standing up there that I talked to about it said I could go down there and get a job; and I went down there- looking for work. I found this team without a driver. There was nobody around the team when I first saw it. I did get up on the wagon and went to work. I went to driving the team; I was told to go to driving the team. Mr. Roy told me to go to driving.
“The men on the works called him Mr. Roy'. I know he taken me and carried me to the hospital. I heard him called Mr. Roy before he taken me to the hospital. I haven’t seen Mr. Roy today. I didn’t pay any attention to him if I did see him. I think I would know him if I saw him again, he was a stout, fat-looking man. He was a white man, he wasn’t black. I cannot really tell you how he was dressed, I didn’t pay that much attention to his clothes at all.
“When he first came up there and spoke to me, I didn’t know what his name was, but I heard him called ‘Mr. Roy,’ and he told me, he said ‘go over there and go to work.’ He told me to get down on the side of the street where they were hauling the dirt from; he told me to work down there in the ditch where they were grading.
“As to whether he told me to get up on the wagon, I will say, I was already on the wagon. I did not get up on the wagon before he talked to me, no, when I drove up there he told me ‘to go over there and get a load.’ He put me to work and I drove the team up there. A man told me to get on the wagon and drive the team down there and I would find a man to tell me what to do. Yes, sir, a man, Frank Jones, told me to get on the wagon, and drive the team down there. Mr. Roy didn’t tell me to get on the wagon and drive the team down there, he told me to ‘go to work.’
“As to my driving the team for Frank Jones, I will say, I -was not driving the team for Frank Jones as I knows of, he told me to go down there and I would find a man down there and the man would put me to work. Frank Jones told me that, and I went on down there and did find a man. Frank Jones told me to get on the wagon and drive the team down there and I would find a man and he would find something for me to do, he would tell me what to do. I don’t know where Frank Jones went to.
“Frank Jones did not tell me they would pay me 40 cents an hour, lie didn’t tell me anything about what they would pay me. When I went down there I asked him what they were paying and he stated they were paying 40 cents an hour, I asked a white man, I told you. The white man was Mr. Roy, and he said they were paying all of them 40 cents an hour; and he said I was getting the same as all the rest of them were getting. He said I was going to be paid 40 cents an hour for driving the team, Mr. Roy told me that. Frank Jones just told me to get on the wagon and drive the team down there and they would tell me what to do.”

On cross-examination, he testified as follows:

“I know Jones when I see him. Have seen him at this trial. After I was taken to the hospital I don’t know whether Jones came out there to see me or not. I didn’t see him if he was out there to see me; I didn’t have a talk with him. I didn’t have a talk with him that I knows of; he didn’t ask me how I came to be driving that wagon. I didn’t tell him that a boy by the name of Sonny sent me over there to go to work. I didn’t know a boy by. the name of Sonny.
“After I got on the wagon and drove this team, Mr. Roy told me what to do; he told me when I went down there; when I went to the job. I said yesterday that Jones told me to get on the wagon, that is the time when I took the wagon from there, he didn’t hire me, Jones didn’t say anything about hiring me, he said ‘take that wagon and go down there, they will tell you what to do.’ Mr. Roy was down on the job and Mr. Jones at 29th and M ½ and I didn’t see him any more. The job was there on 29th street. When Jones told me to take the wagon he told me they would tell me what to do, and that I would find it down on the Hetkes job. The men were working right there on 29th and Q, the street was not torn up at M ⅛ and 29th.”

Roy Colville testified that he was general foreman for Hetkes; that his duty was to superintend the preparation 'of Twenty-Ninth street for paving, and that Hetkes had this job under contract with the city of Galveston. He denied that he employed plaintiff in error, or that he had authority to employ or discharge any laborers working under his direction. He asserted that Hetkes had sole authority to employ the men engaged in preparing the street for paving. Colville was positively identified as the man called “Roy” to whom plaintiff in error claimed to have applied for employment.

The Court of Civil Appeals concluded the evidence showed as a matter of law that there was no contract of employment, either express or implied, between plaintiff in error and Hetkes. It further held that, if the testimony should be deemed sufficient to raise the issue of plaintiff in error’s employment by Colville, the undisputed testimony of both Hetkes and Colville showed Colville was not authorized to enter into such contract of employment.

We do not agree with either conclusion upon which the Court of Civil Appeals based its decision in reversing and rendering this case. It is true,, as asserted by that court, that Hetkes and Colville each testified the latter did not possess authority to employ labor on the work which he was superintending. .We think, however, the circumstance that Colville was Hetkes’ general foremap or superintendent in charge of and directing this work, coupled with the fact that he did assume the authority to employ plaintiff in error and fix his compensation, was sufficient to raise the issue as to whether he had been clothed with authority to employ laborers in connection with the work in which he was engaged.

The issue as to whether Colville was authorized to employ plaintiff in error was not submitted to the jury, nor was any request made for its submission. In support of the judgment, it will therefore be presumed that the trial court found this issue favorably to plaintiff in error. Article 2190, R. S. 1925; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

If it be assumed, however, that Colville was not authorized to enter into the contract of employment testified' to by plaintiff in error, still, we think his agreement to employ Beeman was binding upon his principal, Het-kes. He admits that he was Hetkes’ general foreman or superintendent in charge of and directing the preparation of the street for paving. “Whenever a principal,”, says Ruling Case Law, volume 21, § 34, “has placed an agent in such a situation that a person of ordinary prudence conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform in behalf of his principal the particular act, .and such particular act has been performed, the principal is estopped from denying the agent’s authority to perform it.” As said by the Supreme Court of the United States, in Union Mut. Life Ins. Co. v. Wilkinson, 13 Wall. 222, 235, 20 L. Ed. 623: “The powers of the agent are, prima facie, co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals.”

Tested by these legal principles, the employment by Colville of labor and teams necessary to complete the work he was engaged in performing was within the apparent scope of his authority. At any rate, the issue was raised by the evidence and, for reasons given above, will be presumed to have been determined by the trial court in favor of plaintiff in error.

Prank Jones, the teaming contractor, also denied he had employed the plaintiff in error, or that he directed him to take the team and apply to Colville for employment. According to the; testimony offered by defendant in error, this negro took the team belonging to another, without the owner’s knowledge or consent, and began work on the paving job without being directed to do so by any one in charge, and without any agreement as to his compensation. The jury may have and probably did conclude that plaintiff in error’s version that he was directed by Colville to go to work and he would be paid forty cents per hour for his labor was more reasonable than the theory presented by the testimony offered by defendant in error.

Where the evidence presents two conflicting theories, of which one is unreasonable- and the other appears to be reasonable and probable, though supported by lesser evidence, it is within the province of the jury in passing on the credibility of the witnesses and of the weight to be given their testimony to give credence to the testimony which appears more nearly to comport with reason and human experience. Braunschweiger v. Waits, 179 Pa. 47, 36 A. 155; Green v. Maloney, 7 Houst. (Del.) 22, 30 A. 672; Mayer v. A. & H. G. Mutschler, 248 F. 911, 161 C. C. A. 29.

We conclude that the positive testimony of plaintiff in error, considered in connection with all the facts and circumstances surrounding the transaction, was sufficient to sustain the jury’s finding that at the time of his injury he was an employee of Hetkes.

We recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the trial court affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is-reversed, and that of the district court is affirmed, as recommended by the Commission of. Appeals.


author: LEDDY,' J. CURETON, O. J.

text:
    TEXAS CO. et al. v. DUNLAP.
    No. 1238-5619.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    Y. A. Land, of Denver, Colo., and P. T. Baldwin, T. J. Lawhon, Pleasant E.. Graves, and W. E. Loose, all of Houston, for plaintiffs in error.
    Witt, Terrell & Witt and A. L: Riley, all of Waco, and Doyle & Woods and 'A. B. Geppert, all of Teague, for defendant in error.
   LEDDY,' J.

We adopt from the opinion [21 S.W.(2d) 707] of the Court of Civil Appeals the following statement of the case:

“Appellee instituted this suit to recover from appellants, the Texas Company, Texas Pipe Line Company, and the Kirby Petroleum Company, judgment for $40,000, the alleged value of oil which he claimed said defendants had extracted from certain land owned by him. Said appellants, by cross-action, brought in a number of defendants, asking in event they were cast in the suit, for judgment over against said cross-defendants. The cause was tried to the court, and resulted in. judgment being entered for plaintiff against the Texas Company and the Kirby Petroleum Company for the admitted value of the oil extracted from said land, less the .amount that had been -paid to the parties who drilled the well, and less the 1/32 of the royalty *tha.t had been paid to F. D. Wright, and adjusting the equities between the defendants.
“The facts are undisputed. E. D. Wright was the common source of title to the property in controversy, being two lots located in the town* of Wortham, upon which a large producing oil well was drilled, and which had produced the oil in controversy. In 1921, IP. D. Wright conveyed said land to Daniel Dunlap, retaining a vendor’s lien to secure two notes for $150 each. In October, 1922, F. D. Wright filed suit against Daniel Dunlap on the last of said two $150 notes, and asked for a foreclosure of the vendor’s lien. Dunlap was cited by publication, and on May 30,1923, judgment was rendered in favor of E. D. Wright for his debt, together with a foreclosure of the vendor’s lien. In October, 1923, the sheriff, under an order of sale issued on said judgment, sold the land to E. D. Wright, the plaintiff in said judgment. On October 15, 1923, E. D. Wright conveyed said property to Robert Jefferson. Robert Jefferson and his successors in title sold the mineral leases and royalties to the various parties named as cross-defendants, and they in turn conveyed the mineral estate, less certain portions of the royalty, to the defendants against whom judgment was rendered. Mike Koury and associates drilled the oil well, for which they were to and did receive a certain portion of the oil. No controversy was made by appel-lee with reference to the contract as made, and no recovery was had for the oil which was given to Mike Koury and his associates.
“In February, 1925, Daniel Dunlap filed a bill of review in the nature of a motion for new trial under article 2236 of the Revised Statutes, seeking to set aside the judgment of foreclosure which had been rendered against him on May 30, 1923, and contemporaneous therewith he filed a lis pendens notice, and by letter notified each of the-original defendants sued in this cause of said motion. At the time said motion was filed, a very small quantity of oil, if any, had been extracted from said land. Appellee’s motion to set the judgment aside was denied by the trial court, and 'on appeal the judgment of the trial court refusing to grant a new trial was by this court reversed. Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276. Thereafter, on February 16, 1928, the trial court granted appellee’s motion for rehearing, and set aside the judgment in the case of Wright v. Dunlap, which it had originally rendered on May 30, 1923. Erom said order or judgment no appeal was taken.
“While the bill of review or motion for new trial was pending in the cause of Wright v. Dunlap, in the Seventy-Seventh district court, appellee Dunlap, on March 23, 1927, filed this suit in the Eighty-Seventh district court to recover the value of the oil that had been extracted from said land, claiming that he was the'owner of said land, and entitled to the oil, or the value thereof. Appellants filed pleas in abatement in this suit, asking that same be abated or that it be put on the retired docket until the • court had finally acted upon appellee’s bill of review or motion for new trial in the Wright v. Dunlap Case. Without any formal order being made, it appears this case was not tried until after the Seventy-Seventh district court had granted appellee’s motion for ■ rehearing in the Wright v. Dunlap Case.”

It is insisted by plaintiffs in error that they were innocent purchasers for value of the mineral estate, because they purchased the same after the original judgment in said cause had been rendered and prior to the filing of the motion for new trial, and further, that since they were not made parties to the proceedings for a new trial in said cause, the subsequent order setting aside the judgment and granting a new trial was not binding üpon them.

The identical questions above presented were considered and determined adversely to plaintiffs in error’s contention by the Court of Civil Appeals in the case of Glaze v. Johnson; 27 Tex. Civ. App. 116, 65 S.W. 662. Article 2236, R. S. 1925, was there construed as having no application where the plaintiff in judgment is the purchaser at his own execution sale. It was determined that, where the plaintiff in judgment purchases at the execution sale and subsequently conveys the property to others for value, the granting of a motion for a new trial and setting aside the judgment puts an end to the title so acquired, and this regardless of whether the persons claiming title under the execution sale were made parties to the proceedings for a new trial in the original cause. The rule is otherwise, where a third party purchases at the execution sale. The title thus acquired is not affected by the subsequent granting of a motion for new trial.

After this construction had been placed upon article 2236 by the Court of Civil Appeals, with the approval of the Supreme Court by the denial of an application for writ of error, this article was re-enacted in the codifications of 1911 and 1925 without any substantial modification being- made therein. Under such circumstances, it will be presumed that the Legislature in re-enacting the statute intended to adopt the judicial construction theretofore given it. Cruzan v. Walker (Tex. Sup.) 26 S.W.(2d) 908; Cargill & Dennis v. Kountze Bros., 86 Tex. 400, 22 S. W. 1015, 25 S. W. 13, 24 L. R. A. 183, 40 Am. St. Rep. 853; Country Club v. State of Texas, 110 Tex. 49, 214 S. W. 296, 5 A. L. R. 1185.

Plaintiffs in error very frankly concede that the identical contention made by them as to a proper construction of article 2236 was overruled in Glaze v. Johnson. They insist, however, that the subsequent enactment of the lis pendens statute materially affects the decision of the question now raised by them. It is "asserted that inasmuch as no lis pendens notice was filed hy the defendant in the ease in which he was cited by publication, as required by articles 6641 and 6642, the title emanating from the sale under execution was a good and valid one.

'It is rather difficult to understand just how the existence of the lis pendens statute can be of any aid to plaintiffs in error. Articles 6641 and 6642 of this act exclude from its protection all persons purchasing with actual or constructive notice of the lien. City National Bank v. Craig, 113 Tex. 375, 257 S. W. 210; Holford v. Patterson, 113 Tex. 410, 257 S. W. 213; Ater v. Knight (Tex. Civ. App.) 218 S. W. 648, 651 (writ refused); Paddock v. Williamson (Tex. Civ. App.) 9 S.W.(2d) 452 (writ refused).

In Ater v. Knight, above cited, in discussing the effect of the lis pendens act upon persons having actual or constructive notice of the lien, the court said: “It is also asserted by appellant that the court was in error in establishing and foreclosing the vendor’s lien as to the appellants, for the reason that Mrs. Ater purchased without notice of the judgment, there being no lis pendens notice filed in Lubbock county in the suit of Knight v. Kineannon, No. 922, pending in Hale county. The deed executed by Knight to Kineannon was duly recorded, and recited the vendor’s lien was retained to secure the note .upon which the judgment was obtained, and said deed was in appellants’ chain of title. The reservation of the lien on the lot for the 'payment of the purchase money charged the appellant with notice of the lien.”

Plaintiffs in error are in no position to assert that they were purchasers without constructive notice of the lien which was foreclosed by Wright. The deed retaining the vendor’s lien, as well as the judgment of foreclosure, were essential links in plaintiffs in error’s chain of title. It is elementary that all persons are charged with notice of everything revealed by any document or instrument in the chain of title under which they claim an interest in .land. This being true, plaintiffs in error were charged with notice that a lien existed against said land to secure the payment of the purchase money, and that the judgment in the foreclosure case was one based upon service of citation by publication. They were further charged with knowledge of the existing law which granted the defendant in that case the right at any time within two years to file a motion for a new trial. In other words, they must be held to have known at the time they acquired the mineral estate in this land that the judgment under which they purchased was subject to be set aside and a new trial granted if a motion was filed by the defendant within two years from the date of the judgment, in compliance with the terms of article 2236 of the statutes.

It is further claimed that defendant in error was not entitled to recover for conversion of oil taken from the land in question by plaintiffs in error, because he was not the owner and entitled to the possession of this property at the time he filed his original petition. It appears that when this case was called for trial it was postponed on the docket until the motion for a new trial in the case of Wright v. Dunlap, was granted and the judgment set aside. In this connection, it is said that Dunlap’s title and right of possession to the property passed out of him as a result of the foreclosure judgment and sale thereunder, and. that all title and right of possession to the property passed to and remained with plaintiffs in error until February 16, 1928, the' date the motion for new trial was granted 'in the ease of Wright v. Dunlap.

We are not prepared to assent to the correctness of the proposition thus asserted. The judgment rendered in the case of Wright v. Dunlap, being based upon service of citation by publication, was merely an interlocutory one and so remained until the expiration of the time allowed by law for filing a motion for new trial. Rabinowitz v. Darnall (Tex. Com. App.) 13 S.W.(2d) 73.

The record before us does not present a case falling within the rule announced in the line of authorities relied upon by plaintiffs in error. The title of Dunlap was not one acquired after the bringing of this suit. His original title was never divested, because no judgment rendered against him ever, became final. An interlocutory judgment was rendered against him, but this did not have the effect of a final judgment. When it was set aside before, it became final Dunlap’s ownership of the property in question dated from the inception of his title. To hold otherwise would be to determine that' one who wrongfully obtains an interlocutory judgment recovering land which is later set aside by the granting of a motion for new trial may properly develop for his own profit the minerals in such land during the period such judgment remains in force.

Plaintiffs in error throughout their brief have treated the proceeding, brought by Dunlap to set aside the judgment in the case of Wright v. Dunlap, as being one in the nature of a bill of review. In such a case, the judgment would be a final one operating to vest title, but such title would be subsequently divested if the bill of review should be sustained and the judgment set aside. The proceeding brought against Dunlap in the case in which foreclosure judgment was rendered against him was in no sense a bill of review, but simply a motion for a new trial in the suit in which the judgment was rendered. Article 2236, R. S. 1925; Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276; Wiseman v. Cottingham, 107 Tex. 68, 174 S. W. 281; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662.

We have carefully examined various other assignments of error presented by plaintiffs in error. To discuss them seriatim would prolong this opinion beyond a reasonable length. It is sufficient to say that we do not find any of them present, a substantial reason for a reversal of the judgment rendered by the Court of Civil Appeals.

We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, O. J.

Judgment of the Court of Civil Appeals, affirming the judgment of the district court, is affirmed, as recommended by the Commission of Appeals.


author: CRITZ, J.

text:
    McCALLUM, Secretary of State, v. ASSOCIATED RETAIL CREDIT MEN OF AUSTIN.
    No. 1454-5719.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    Robert Lee Bobbitt, formerly Atty. Gen., and Rice M. Tilley, formerly Asst. Atty. Gen., for plaintiff .in error.
    George Mendell, of Austin, for defendant in error.
   CRITZ, J.

For convenience, we shall refer to Mrs. Mc-Callum as the state, and to the Associated Credit Men of Austin as the Association.

The Association, a domestic corporation, filed this suit in the district court of Travis county, Tex., against the state to enjoin the state from demanding or attempting to collect from it the annual franchise tax imposed against private domestic corporations by article 7084, R. C. S. of Texas, 1925. The district court awarded the Association the relief sought, and that judgment was affirmed by the Court of Civil Appeals. 26 S.W.(2d) 715. The case is in the Supreme Court on writ of error granted on application of the state.

The Association contended in the two lower courts that it was not due to pay any tax for two reasons: (a) Because article 7084 does not levy any franchise .tax on corporations without capital stock, the Association being admitted to be such a corporation; and (b) because the Association was exempted from the payment of the franchise tax levied by article 7084, by the provisions of article 70-94, R. C. S. of Texas, 1925.

The Court of Civil Appeals correctly held that ai-ticle 7084 levies a franchise tax on corporations without capital stock as well as corporations with capital stock, and we will not further concern ourselves with that question.

The Court of Civil Appeals holds that the- Association is exempt from the payment of a franchise tax by virtue -of the provisions of article 7094. That article reads as follows:- “The franchise tax imposed by this chapter shall not apply to ⅜ * * or to corporations having no capital stock and organized for the exclusive purpose of promoting the public interest of any city or town. ⅜ ⅜ * ”

The agreed statement of facts shows that the Association is incorporated under subdivision 53 of article 1302, R. C. S. of Texas, 1925.

The Association’s charter purposes read as follows: “The purpose for which it is formed is to acquire, preserve, and disseminate valuable business information, and to adopt rules and regulations in connection therewith.”

The agreed statement of facts shows the following with reference to the manner in which the Association’s business is conducted, its purposes and practices:

“In actual practice this association's maintained primarily for its members, who are retail merchants in the City of Austin, and the members now number about thirty-six. These members pay annual dues of Ten Dollars ($10.00) each, regardless of the volume of business done by the respective members. This money is used in paying for postage stamps, stationery, incidentals, and in Writing letters to the members and giving valuable information. The association does not furnish information to anyone but its members, primarily, and this information is only furnished upon request by these members, or upon monthly or semi-monthly meetings that the association has. Part of this money also goes to the paying of national dues, since the association belongs to the national association.
“So often speakers are brought before members at stated meetings, and also to persons who are not members, upon invitation of the members to these outside persons but these •outside persons have no right to come to such meetings and are there by virtue of courtesy of the members.
“Mr. Horace Barnhart has been Secretary of this association for approximately two years, and during that time there has only been one outside speaker of prominence to appear before the association.
“This organization is primarily for the benefit of its members to disseminate valuable information ; to acquaint them with new business principles, and to suggest advisable policies to adopt, and incidentally or secondarily, the association does render a service to other merchants, and even to persons who are not members.
“The association sends the Secretary each year to conventions, at which time he comes in contact with secretaries of other associations in the United States, and by his discussions and attendance on said conventions educates himself as to the means of acquiring valuable information and the policies that are being profitably used in other localities, and upon his return he imparts this information to the members, with his suggestions and also others. This information, of course, to some extent, is imparted to -others not members, and to the community at large in some respects, but no one but the members have the right to this information or the right to demand it, and it is given to non-members sometimes in order to improve the financial condition of the community, and in that way reflects profitably to the members and the public generally.
“The association also publishes, from time to time, in newspapers, display advertising-matter, urging the public to buy from home merchants and patronize home concerns; to pay bills promptly; to live within their im come and not contract to spend more than they earn, the latter, of course, resulting in the payment of bills promptly to- the merchants; to beware of itinerant peddlers who go from house to house selling merchandise, and to avoid schemes and devices that will cause the loss of money through fraudulent schemes and campaigns.
“The members are members because of their personal benefit that they derive therefrom, although, of course, others in a way profit by their investment and their membership.”

We think that a careful reading of the above agreed statement will demonstrate that the primary purpose of the Association is for the private benefit of its members and not “for the exclusive purpose of promoting the public interest of any town or city.” It follows that the Association is not exempt from the payment of a tax here sought to be-enjoined.

The Court -of Civil Appeals holds that “If any doubt arises with respect to the imposition of a tax, it must be resolved against the right to make the exaction.” We find no fault with-this rule, but we have no such case before us.

In the case at bar, we have the tax undoubtedly levied against this Association by the terms of article 7084, and the question is whether it is exempted by the provisions of article 7094 from the tax imposed on all corporations by the general provisions of article 7084. The rule is that where a tax is levied by a general law and one claims an exemption therefrom by reason of some exemption statute, he must bring himself clearly within the exemption. In other words, an intention on the part of the Legislature to grant an exemption from the taxing power will never be implied from language that will admit of any other reasonable construction. Such an intention must be expressed in clear and unambiguous terms, or must appear by necessary implication from the language used. Cooley on Taxation, vol. 2, par. 672 and notes; Morris v. Loan Star Chap. No. 6, Royal Arch Masons, 68 Tex. 698, see body of opinion page 702, 5 S. W. 519, 520.

In the instant case, the Association not only fails to show that it is “organized for the exclusive purpose of promoting the public interest of a city,” etc., but it absolutely shows to the contrary, in that the agreed statement of facts shows that “The Members are members because of their personal benefit that they derive therefrom,” and that “This organization is primarily for the benefit of its members to disseminate valuable information ; to acquaint them with new business principles, and to suggest advisable policies to adopt,” etc.

A careful reading of the entire statement of facts demonstrates that the primary purposes of the Association, as disclosed by the charter and its mode and manner of operas tion, are not for the exclusive purpose of promoting the public interest of a city or town, but for the personal benefit of its members. Certainly, the Legislature never intended to exempt such a corporation from the tax imposed by article 7084.

The Court of Civil Appeals also holds that the statute, article 7094, should be given the construction that it exempts the Association from the tax because (a) the administrative officer of the state, the secretary of state, charged with the duty of collecting the tax, has so construed the statute for several years, and, (b) because the secretary of state has for several years so construed an opinion, of the Attorney General. This holding is error.

The rule that a departmental ruling adhered to through years of administering of a statute will be given weight, only applies to statutes of doubtful construction. Such a rule has no application to a statute, such as this, that is not of doubtful construction or application. Ramsey v. Tod, 95 Tex. 614, see body of opinion page 626, 69 S. W. 133, 136, 93 Am. St. Rep. 875.

In regard to the ruling of the Attorney General, it is shown that in 1915 the secretary of state asked the Attorney General for an opinion as to whether a chamber of commerce was exempt under the exemption statute here under consideration. Judge Cure-ton, then first Assistant Attorney General; later Attorney General, and now Chief Justice of the Supreme Court, rendered the opinion. The syllabus of the opinion, which was not prepared by Judge Cureton, was construed by the secretary of state to hold that all corporations organized under the statute that the instant corporation was organized under were exempt from payment of franchise taxes. However, a reading of the opinion demonstrates that Judge Cureton announced no such rule, and gave no such advice. The opinion pointed out to the then secretary of state the difference between corporations that were exempt from the tax and those not exempt. We quote the following from the opinion, which very clearly defines the class of corporations which are liable to pay the tax and those that are exempt therefrom: “It is clear from a consideration of this definition and others that might be cited, that a board of trade may be organized either as a business institution for the benefit of its members alone, for the purpose of facilitating them in the conduct of their business affairs being in the nature of cotton exchanges, etc., or it may be organized to promote the general commercial and industrial interest of the people of the city.”

The incorporation involved in the Cureton opinion was a chamber of commerce, and was held exempt.

Very obviously the corporation here involved is not such a corporation as was involved in the opinion rendered by Judge Cure-ton above discussed.

The Court of Civil Appeals in its opinion on motion for rehearing calls attention to the fact that the 41st Legislature amended article 7084 after the rendition of its original opinion in the instant case. We attach no significance to this. The legislative action alluded to was in harmony with the holding of the Court of Civil Appeals in its original opinion.

We recommend that the judgments of the Court of Civil Appeals and district court be both reversed, and judgment here rendered for the state.

PER CURIAM.

Judgments of the district court and Court of Civil Appeals reversed, and judgment rendered for plaintiff in error.

CURETON, C. J., not sitting.

GREENWOOD and PIERSON, JJ., concur.