author: GRIFFIN, Justice.

text:
    W. H. HODGES & COMPANY OF ALEXANDRIA, INC., Petitioner, v. The DONLEY COUNTY STATE BANK OF CLARENDON, Texas, Respondent.
    No. A-11366.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 9, 1966.

      Smith, Teed, Wade, Waters & Snow, Pampa, for petitioner.
    William J. Lowe, W. T. Link, Clarendon, for respondent.
   GRIFFIN, Justice.

This suit was filed in the district court of Donley County, Texas, by The Donley County State Bank of Clarendon, Texas, as plaintiff (hereinafter called Bank), against Bob Sherrod, as a defendant, upon promissory notes and for foreclosure of a chattel mortgage lien upon 206 head of cattle. W. H. Hodges and W. H. Hodges & Company, a corporation, of Alexandria, Louisiana (hereinafter called Hodges), were joined as defendants, because it was alleged that Hodges was claiming to be the owner of said 206 head of cattle. Hodges filed a cross-action against Sherrod for debt and against the Bank and Sherrod for title and possession of the 206 head of cattle. By agreement of all parties the 206 head of cattle were sold and the proceeds of the sale, $23,564.29, were held subject to the outcome of the suit.

Hodges was the only party appealing from the trial court’s judgment and on appeal the trial court’s judgment was affirmed. 399 S.W.2d 193. In this Court Hodges alone complains of the judgment of the Court of Civil Appeals. The case was tried to a jury and four special issues were submitted. Issue No. One inquired if Sher-rod owned the 206 head of cattle at the time he executed his chattel morgage on them to secure his loan to the Bank, or if Sherrod thereafter acquired title to them. The jury answered this issue “No,” No complaint is made of this issue or its answer, so it will not be further considered.

Special Issue No. Two inquired if the conduct and actions of Hodges or its failure to act, with respect to the 206 head of cattle, reasonably led the Bank to believe, in the exercise of ordinary care, that Sherrod owned the 206 head of cattle. The jury answered this issue “No."

Special Issue No. Three inquired if Sherrod and Hodges were engaged in a partnership in dealing with the 206 head of cattle. The jury answered this issue “No.” No complaint is made of the issue or its answer, so the question of partnership is no longer in the case.

Special Issue No. Four inquired if Sher-rod and Hodges were engaged in a joint adventure in dealing with the 206 head of cattle. The jury answered this issue “Yes.” Hodges has attacked this issue and its answer by appropriate assignments in both courts below and in this Court. Hodges contends there is no evidence to justify submission of this issue or the answer of the jury thereto.

In the trial court plaintiff Bank moved for judgment on the jury’s answer to Special Issue No. Four (joint adventure), and the trial court granted this motion. On appeal the Court of Civil Appeals affirmed the trial court’s action and also held Hodges was estopped to deny Sherrod’s authority to mortgage the cattle, because Hodges had permitted Sherrod to place his brand on the 206 head of cattle.

We reverse the judgment of both courts below and remand the cause to the trial court for entry of judgment consistent with this opinion.

Sherrod wholly defaulted and refused to' testify in this cause, invoking the fifth amendment to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution, Vernon’s Ann.St.

First we will dispose of the question of estoppel of Hodges to plead its ownership of the cattle and Sherrod’s lack of authority to mortgage them to the Bank. The Bank’s right under its plea of estoppel was submitted by the court as Special Issue No. Two. That issue read, as material to our inquiry: “Do you find * * * that the conduct and actions, if any, or the failure to act, if any, on the part of W. H. Hodges, with respect to the 206 head of mixed breed steer yearlings in question, reasonably led The Donley County State Bank to believe, in the exercise of ordinary care, that the 206 head of mixed breed steer yearlings were owned by Bob Sherrod?” To which the jury answered “No.”

Although Hodges made objections to the submission of this issue, the Bank has not attacked this finding by any cross-assignment of error. The Bank argued before the Court of Civil Appeals and argues in this Court that the facts show Hodges is estopped to deny Sherrod’s right to mortgage the cattle. With the jury answering Special Issue No. Two against the Bank, the Bank, to prevail on the question of es-toppel, must show that the facts in this record establish as a matter of law that Hodges is estopped to deny Sherrod’s ownership of the cattle.

In view of the fact that the jury answered the estoppel issue favorably to Hodges and adversely to the Bank, in considering whether or not there is evidence to support the jury answer, we must view the evidence most favorably to Hodges. Unless the evidence was of such a character that as a matter of law Hodges was es-topped to deny Sherrod’s ownership of the cattle, we must uphold the jury’s answer. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948); Biggers v. Continental Bus Systems, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); 4 Tex.Jur.2d 326, § 804.

We have read the Statement of Facts and found there is evidence to support the jury’s answer to Special Issue No. Two, and that finding is binding on us.

The president of the Bank testified that at the time the loan committee and the directors of the Bank approved the loan to Sherrod, they were relying on Sherrod’s general statement that he had sufficient collateral to protect the Bank; that prior to making the loan the Bank sought information from ten or twelve people in the cattle business who knew Sherrod, and the Bank was satisfied that he had a good credit and business reputation; that Sher-rod usually had on hand a large number of cattle; that on December 13, 1962, when the Bank actually made the loan and took Sherrod’s notes, there was no financial statement made by Sherrod to the Bank and Sherrod did not make a financial statement to the Bank until January 11, 1963; that the Bank made no inspection of the 206 head of cattle until about March 1, 1963. Mr. Hodges testified that only 114 head of cattle had been purchased by him and shipped to Sherrod by December 13, 1962; that he saw the 69 head of cattle branded with the Flying U brand on the left hip or thigh about December 10, 1962, but he did not know this was Sherrod’s brand until about April 1, 1963. Hodges further testified that Sherrod owned no interest in the 206 head of cattle, and that he, Hodges, never authorized Sherrod to mortgage or otherwise encumber or dispose of the cattle. Hodges first found out that Sherrod had mortgaged the cattle to the Bank about April 1, 1963, and on receiving this information he and Sherrod went that same day to Clarendon to the office of the Bank and told the president that the cattle belonged to Hodges and that Sherrod neither owned the cattle nor had a right to mortgage them. There is other evidence of a similar nature, but the above recitation of evidence shows that the jury’s answer to Special Issue No. Two has support. The jury’s adverse answer to the Bank’s plea of estoppel is supported by the evidence. This Court must dispose of the case on the basis that Hodges was neither estopped to claim ownership of the cattle nor to deny Sherrod’s right to mortgage' them to the Bank.

This leaves as the only ground for recovery the jury’s answer to Special Issue No. Four, that Sherrod and Hodges were engaged in a joint adventure in dealing with the 206 head of cattle.

Hodges attacked this finding of the jury in both courts below and asked that the finding be disregarded because there was no evidence to raise such issue and no evidence to support such finding by the jury' in answer to such issue. Hodges raises these same points in this Court.

In reading the Statement of Facts, we find no evidence to support the jury’s answer to the issue.

For there to be a joint adventure, there must be an agreement between Sherrod and Hodges, either express or implied. 33 Tex.Jur.2d 290, § 4 and authorities cited. There is no evidence in the record as to an express agreement between Sherrod and Hodges to enter into a joint adventure with regard to these 206 cattle.

Sherrod refused to testify to anything except his name and address. Mr. Hodges testified that about the last of October or the first of November, 1962 he had a telephone conversation with Sherrod in which Sherrod told him he had enough wheat pasture for about 250 yearlings, but did not have sufficient money to buy the cattle, and asked if he (Hodges) “would be interested in pasturing any.” Hodges replied that he would consider this. About every week thereafter until near the end of November, 1962, Sherrod kept asking Hodges about the possibility of shipping cattle to Sherrod to be pastured on Sherrod’s wheat. Hodges told Sherrod about the end of November that he would ship some cattle to be pastured on Sherrod’s wheat, and began to ship these yearlings in various lots. By December 13th Hodges had shipped 114 head, and shipped a total of 220 head by Christmas, 1962. Hodges further testified there was no definite agreement as to how Sherrod was to be paid for pasturing the 220 head of cattle and for his services in looking after the cattle. On cross-examination Hodges answered the question, “In other words, you made a contract with a man to be compensated if the cattle made any money, but when he was to be paid and how he was to be paid and how much he was to be paid or what percentage, you had no agreement on that?” Answer, “Yes, sir.”

Hodges further testified that Sherrod told him he had the wheat pasture and asked Hodges if he would stock it, and Hodges shipped the 220 head of cattle. Hodges said he expected Sherrod to be paid, if the cattle made any money, but there was never any discussion or agreement between him and Sherrod as to the amount of pay or when it was to be paid. He said: “Well, we had no agreement. In other words, I would say this, it was rather loose that we went into the thing. We did not have anything concrete, insofar as exactly how he should be paid.” Hodges further testified with regard to Sherrod’s compensation: “We never did say anything specifically, but I would imagine fifty per cent is what we assumed.” Hodges said that he and Sherrod never discussed any arrangement for Sherrod to participate in the profits, but a fifty per cent division of profits was only what he, Hodges, had in mind; that had there been a loss, Hodges intended to take the loss and not ask Sher-rod to share the loss; that he, Hodges, could have sold all or any part of the cattle at any time he saw fit, and that Sherrod nfver had any interest in any of the cattle.

“There must be a community of interest and participation in the profits of the enterprise to establish a joint adventure. That a person is to share in the profits of an enterprise does not of itself, however, create the relation of joint adventurers, with corresponding liabilities to third persons; the sharing must be by virtue of right as a principal in the joint business, not as mere compensation for services.” 33 Tex.Jur.2d 287, § 2. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011 (1956).

At most, the record in this case would support a finding that Sherrod was to be paid for his wheat pasture and services in looking after the cattle by a share in the profits, if any, made on the cattle. It does not support a finding that Sherrod and Hodges were engaged in a joint adventure.

It follows from our holdings above that both courts below were in error in awarding title and possession of the cashier’s check for $23,564.29 to The Donley County State Bank of Clarendon, Texas; that W. H. Hodges & Company, a corporation, is entitled to the title and possession of said cashier’s check and that the judgments of Bank and of Hodges against Sherrod should have the resulting adjustments made by the trial court.

The judgments of both courts below are reversed and this cause is remanded to the trial court for entry of judgment in accordance with this opinion.

All costs are adjudged against Bob Sher-rod and The Donley County State Bank of Clarendon, Texas, jointly and severally.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Alfred J. BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 39353.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    Don Brown, LaMarque, for appellant.
    Jules Damiani, Jr., Dist. Atty., Thomas L. Douvry and Emmett F. Magee, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for forgery with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Rodney Gary Sims, while testifying, identified the appellant as the same person who, in his presence, wrote out and signed the name of Willie Franklin, Jr., to a draft as maker, and delivered it to him on August 18, 1964, in the sum of $40.75, payable to E. S. Levy and Co., and drawn on the Moody National. The witness Sims identified a draft at the trial as the same draft passed to him by the appellant, and for which he sold and delivered to the appellant two pairs of shoes for the purchase price of $40.75; and he placed the initial “R” at the top of the draft and the number of the driver’s license bearing the name of Willie Franklin, Jr., which was exhibited by the appellant was placed at the bottom of the draft.

The testimony reveals that the true name of the appellant is Alfred J. Bell.

Willie Franklin, Jr., testified that he did not sign or authorize anyone to sign his name to said draft.

The driver’s license of Willie Franklin, Jr., which had been stolen, was in the wallet found in appellant’s pocket at the time of his arrest. The shoes appellant was wearing when arrested were identified by the witness Sims as one pair of those he sold to appellant on August 18, 1964.

A document examiner of the Texas Department of Public Safety testified that the handwriting on said draft was in his opinion the same as that of other handwritings which were shown to be known specimens of appellant’s handwriting.

The proof of the prior convictions as alleged and of the identity of the appellant as the same person convicted therefor was stipulated by and between the appellant and his counsel and counsel for the state.

An independent hearing in the absence of the jury was held on the voluntariness of the written statement made by the appellant. After the hearing the court resolved the issues of fact and law and found that said written statement was voluntarily made in accordance with statutory requirements in effect at the time. This written statement included only specimens of appellant’s handwriting which were obtained for the purpose of comparison with the handwriting on the draft.

The appellant did not testify but he sought to prove by other witnesses that at the time of his arrest he did not drop a small pouch as the state contends. The state had offered testimony that appellant had dropped a pouch which contained a check bearing the name of Willie Franklin, Jr., as payee.

Appellant contends that the trial court erred in refusing to strike the second paragraph of the indictment which alleges that he had been previously convicted “of a felony less than capital, to wit, Forgery and Passing as True a Forged Instrument” on the ground that he could have been convicted of only one of such offenses; and that said paragraph was multifarious and did not sufficiently inform him of the offense charged.

From the record before us of the prior conviction alleged in the second paragraph of the indictment, it appears that the judgment and sentence could have been reformed. Being subject to reformation, the judgment was not void. Smotherman v. State, Tex.Cr.App., 383 S.W.2d 929.

It is insisted that there is a fatal variance between the proof on the trial and the instrument set out in the indictment.

The driver’s license number and the initial “R” were the only additions to the face of the draft after it was passed and they appear on the draft set out in the indictment. These additions were not material variances and did not affect the validity of the indictment. The endorsements and printing later placed on the back of the draft by the banks handling it and the slip attached to it did not create a variance or vitiate the indictment. 25 Tex.Jur. (2) 562, Sec. 47; 3 Branch (2) 730, Sec. 1588; Whitlock v. State, 170 Tex.Cr.R. 153, 338 S.W.2d 721.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Ex parte Emil WAGNER.
    No. 39760.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1966.
    No attorney on appeal.
    W. Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

This is an appeal from an order entered in a habeas corpus proceeding by the Judge of the 34th District Court, El Paso County, Texas, remanding appellant to custody for extradition to the State of New York.

No brief has been filed on behalf of the appellant.

The only objection taken was by informal bill to the introduction into evidence of the Governor’s Warrant and the supporting papers, on the ground that they were not proven to be authentic.

The trial court had before him the entire record and the evidence. He was authorized to conclude that the evidence was sufficient and remand the appellant for extradition. Delgado v. State, 158 Tex. Cr.R. 52, 252 S.W.2d 935.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    H. J. WEAVER, Appellant, v. ACME FINANCE COMPANY, a co-partnership, Appellee.
    No. 223.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 29, 1966.
    Rehearing Denied Oct. 20, 1966.

      See also 401 S.W.2d 259.

      William H. Scott, Jr., Houston, for appellant.
    Charles Elick, of Barnes & Elick, Mc-Allen, Ralph Alexander, of Kelley, Looney, McLean & Littleton, Edinburg, for appellee.
   OPINION

GREEN, Chief Justice.

This is a venue case. The trial court overruled appellant’s plea of privilege to be sued in Harris County where he resides, and he appeals. Subsections 5-29a, 12 and 12-29a, and 14, Art. 1995, are involved.

On September 17, 1959, McAllen Cemetery Association entered into a contract with Gene Loewy Construction Company for the building of a mausoleum on land in Hidalgo County belonging to the Association. This was to be built at no expense to the Association. Construction Company received, as its consideration, the right to handle the sales of 80% of the crypts sold, with all proceeds of such sales to be retained by Loewy except $15.00 per crypt sold to be paid Association. The remaining 20% of the crypts were to go to Association.

All rights of Loewy under this contract were, on April 2, 1960, assigned to Mausoleum Sales Company, Inc., with the consent of the Cemetery Association. On December 1, 1960, Sales Company entered into a contract with Andis & Burris, General Contractors, for the construction of the mausoleum. To assist in financing this construction, Sales Company on February 1, 1961, for the purpose of securing a line of credit to the amount of $100,000.00 with W. D. Whalen, executed the note in litigation in the principal amount of $100,000.00, payable to the order of Whalen at McAllen, Hidalgo County, Texas, on demand. This note was signed by Mausoleum Sales Company, Inc., by its president, L. R. Garrett, and its secretary, Nell Rose Garrett. On the same date, a Collateral Assignment Agreement was executed by Sales Company, Cemetery Association, W. D. Whalen, and certain named trustees, under the terms of which Sales Company transferred all contractual rights it had in and to the proceeds of the sales of crypts and all other benefits under the contract and assignments heretofore mentioned to named trustees as collateral security for the payment of the aforementioned note. (Another note was also involved in this matter, which is not material to the venue issue.) It was stipulated and confirmed that the mausoleum, when constructed, should belong to Cemetery Association, subject to the rights of Sales Company and its assignees under the collateral agreement to sell and use the proceeds, except that $15.00 per crypt sold should go to Association, and Cemetery Association reserved the exclusive power and authority to execute and deliver deeds to the respective purchasers, subject to approval of the trustees.

Thereafter, according to plaintiff’s evidence, W. D. Whalen assigned all of his interest in the $100,000.00 note and collateral to plaintiff Acme Finance Company, a co-partnership, the present holder and owner of same.

The mausoleum has been finished. Many of the crypts have been sold under the agreements hereinabove mentioned and the sum of $45,000.00 has been credited to the principal of the note, according to the plaintiff’s petition.

This suit was filed by plaintiff Acme Finance Co., a co-partnership consisting of Helen Spencer and M. L. Wagner, against Mausoleum Sales Company, Inc., L. R. Garrett and Nell Rose Garrett, on the note and collateral agreement. The petition asked for an accounting by defendants for the proceeds of all crypts sold by them, alleged a lien on all of the crypts except those retained by Cemetery Association, and prayed for foreclosure of said lien as a first lien superior to any claims of any of the defendants. H. J. Weaver was named as a party defendant under the allegation that he claimed some right to or encumbrance on the crypts allotted to' defendants, that such claims constituted a cloud and an encumbrance against the title of said crypts and that any claim that Weaver has should be quieted as against the lien and interests of plaintiff under the collateral agreement.

We will use the singular in referring to plaintiff partnership, and will designate the parties as in the trial court.

Liability of the Garretts on the note and collateral agreement is based on the theory that as sole owners of all the capital stock of Mausoleum Sales Company, Inc., they have continued to operate the affairs of Mausoleum Sales Company in utter disregard of the corporate entity, notwithstanding that said company forfeited its charter in March, 1963, due to failure to pay franchise taxes.

All of the defendants filed pleas of privilege, the Sales Company and the Garretts, •who resided in Harris County, joining in one plea, and defendant Weaver, also a resident of Harris County filing a separate plea. Plaintiff answered said pleas, filing one controverting affidavit to the plea of the first three named defendants, none of whom had his or its place of residence in Hidalgo County, and a separate affidavit to Weaver’s plea. After a hearing, both pleas of privilege were overruled. Only defendant Weaver has appealed.

Since Weaver did not sign either the note or the Collateral Assignment Agreement, nor, for that matter, any of the documents introduced in evidence, Exception 5, Art. 1995, does not place venue as to him in Hidalgo County. He had not contracted in writing to perform an obligation in such county.

Exception 29a, Art. 1995, reads as follows :

“Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

It is not contended by appellant Weaver on this appeal that the suit was not lawfully maintainable in Hidalgo County as to the defendants Sales Company and the Garretts, and we find under the pleadings and the evidence that it was lawfully maintainable there as to said defendants. It is appellee’s contention that Weaver was a “necessary party” to this action, and that this suit may be maintained as to him in Hidalgo County under the provisions of Exception 29a.

Plaintiff’s allegation of Weaver’s claim of “some right to or encumbrance on the crypts which were allotted to defendants as aforesaid” is based, according to evidence, upon allegations made by Weaver in a suit filed in the district court of Harris County, Texas, on a note prior in time to the note here in question, executed by defendant Mausoleum Sales Company, Inc., payable to Weaver. As evidence of the right or encumbrance claimed by Weaver, plaintiff offered in evidence a short extract from Weaver’s answer filed subject to his plea of privilege in the Hidalgo County case, quoting from his petition in the Harris County suit, as follows: “ * * * and that they took all of its assets and inventory in violation of the statutes prohibiting and dealing with fraudulent conveyances and in violation of the Bulk Sales Law.” Thereafter, in order to show what the Harris County law suit was about, defendant Weaver was permitted to introduce in evidence his petition in that case. The subject of such suit was a $12,000.00 note, signed by Mausoleum Sales Company, Inc. on April 2, 1960, payable to H. J. Weaver at Houston, Harris County, Texas out of realized profits of Sales Company. This date was prior to the execution of the $100,000.00 note on February 1, 1961. Besides the Sales Company, other defendants in the Harris County case were W. D. Whalen, L. R. Garrett, T. B. Weekly and Paul Wagner, the latter two being the trustees named in the Collateral Assignment Agreement, and Acme Finance Company, a Texas Corporation. Weaver alleged the existence of a conspiracy between the personal defendants from February 1, 1961, to fraudulently secure to themselves all of the assets of the Sales Company, and particularly its rights and assets in connection with the sales of crypts in the mausoleum, so that Weaver’s note could never be paid out of realized profits. In connection with detailed allegations of fraud and conspiracy Weaver prayed for a judgment on his note against all of the defendants, and asked that conveyance of certain assets of Sales Company to other defendants be declared void and that a receiver be appointed to take possession of the contractual rights of Sales Company under the Loewy contract for the sale of crypts in the mausoleum, that he have an accounting of the personal defendants of amounts due to Sales Company, and that thereafter the obligations of Sales Company to Weaver be paid. That the venue of said case is properly in Harris County as to the parties to that suit has been determined. Acme Finance Company, et al., v. Weaver, et al., Tex.Civ.App., 401 S.W.2d 259.

Under our venue statutes it must be clearly shown that the case comes within some well-defined statutory exception before one may be deprived of the right to defend a suit against him in the county of his residence. The party relying upon Exception 29a to hold venue in a county other than the county of the residence of a defendant asserting his statutory privilege must plead and prove that such defendant- is a necessary party to the action. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758.

It is well settled that one merely claiming some interest in mortgaged property upon which foreclosure is sought is not a necessary party under Exception 29a. The interest or lien alleged and proved must be such that the mortgagee seeking foreclosure could not obtain the relief to which he is entitled under his mortgage without the presence of the claimant of the interest or the lien as a party to the suit. Stephenville Production Credit Ass’n v. Drake, Tex.Civ.App., 226 S.W.2d 888, expressly approved by Texas Supreme Court in Shaw v. Allied Finance Company, supra.

The court in Shaw, supra, copies and adopts the following extract from Faubion v. Rogers, 66 Tex. 472, 1 S.W. 166:

“ * * * The only proper parties to a suit to foreclose a mortgage — and, of course, the rule holds good as to similar liens — are the mortgagor and the mortgagee, and those who have acquired any interest from them subsequently to the mortgage. 2 Jones, Mortg., § 1440. As there is no privity between an adverse claimant who is a stranger to the mortgage and the estate, he cannot be made a party for the purpose of trying his adverse claim in the foreclosure suit.”

To the same effect, Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147; Linder v. Thomas, Tex.Civ.App., 228 S.W.2d 300, opinion approved by the Supreme Court in Shaw v. Allied Finance Company, supra.

The Weaver note sued on in the Harris County case was executed ten months prior to the note made the basis of the present suit. There are no allegations and no evidence that Weaver participated in any of the transactions concerning the $100,-000.00 note and collateral security agreement; in fact the testimony is that when these instruments and agreements were executed, and at all times since, he was not and has not been connected in any way with Sales Company or any of the other parties to the law suit.

Although Weaver’s allegations in the Harris County suit may make his claims adverse to the claims of plaintiff in the present suit, they do not make him a necessary party in order that plaintiff may enforce the rights which plaintiff has under his contract with the mortgagors. Shaw v. Allied Finance Company, supra; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758; Linder v. Thomas, supra; Stephenville Production Credit Ass’n v. Drake, supra. Plaintiff, on proper proof in the trial on the merits, would be entitled to its judgment on the note and foreclosure of its liens, if established, without the presence of Weaver as a party, and sale of the property under such foreclosure decree would divest defendants Sales Company and the two Garretts of any title to the mortgaged property they might have had. Such would be the relief to which they would be entitled provided they successfully establish their case by proof. Linder v. Thomas, supra, (p. 302 of 228 S.W.2d).

Plaintiff relies on Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284, as supporting its claim to venue under 29a. As stated in Shaw v. Allied Finance Company, supra, that case did not hold that any one who claims adversely to the mortgagor is a necessary party (under Exception 29a) to a foreclosure suit. The Gray case holds that one to whom a mortgagor has conveyed property subsequent to the execution of the mortgage is a necessary party to a suit to foreclose the mortgage under Art. 1995, Exception 29a.

Since defendant Weaver was not a necessary party to the present suit, the order of the trial court overruling his plea of privilege can not be sustained under the provisions of Exception 29a to Art. 1995.

Exceptions 12 and 14 to Art. 1995 are also relied upon by plaintiff to sustain the trial court’s ruling. These exceptions read:

“12. Lien. — A suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”
“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Exception 12 does not, in our opinion, fix venue as to defendant Weaver in Hidalgo County under either the pleadings of plaintiff or the undisputed facts of the case. He was not a party to either the note or any of the instruments plaintiff relies on to create its lien. No fact is alleged to disclose any relation between Weaver and any of the other parties to the suit. Plaintiff’s allegation that Weaver “claims some right to or incumbrance on the crypts which were allotted to defendants” do not state that such claimed interests, if any, were created subsequent to the creation of plaintiff’s asserted lien, so as to make Weaver a proper party to this foreclosure suit. Faubion v. Rogers, supra; Hampshire v. Greeves, supra. As stated by the Supreme Court in the latter case in referring to adverse claims of those who are strangers to the mortgage and estate, and quoted in Linder v. Thomas, supra,

“ * * * adverse claimants cannot be made parties to a foreclosure suit for the purpose of litigating their title. The only proper parties are the mortgagor and mortgagee, and those who have acquired any interest from them subsequently to the mortgage. An adverse party is a stranger to the mortgage and estate. His interest can in no way be affected by the suit, and he has no interest in it. There being no privity between him and the mortgagee, the latter cannot make him a party defendant for the purpose of trying his adverse claim in the foreclosure suit. * * * ”

Since there is no allegation or evidence that Weaver had any relation to any of the instruments relied on by plaintiff in its foreclosure suit, and since there is neither allegation nor proof that Weaver is asserting any claim to the crypts under the Sales Company, which is the source of plaintiff’s lien as alleged, we hold that venue of this case as to defendant Weaver can not be sustained under Exception 12.

The venue facts necessary to be proved under Exception 14 are: (1) that the suit is one for title to real estate or damages thereto, or to remove encumbrances upon the title to land, or to quiet the title to lands, and (2) that the land involved is situated in the county where the suit is brought. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69; Woodworth v. Rogers, Tex.Civ.App., 367 S.W.2d 412; Petroleum Processing Inc., v. Roemer, Tex. Civ.App., 396 S.W.2d 528. The question which we must first determine here is whether or not this is a suit for title to land, or to remove encumbrances upon the title to land, or to quiet the title to land. This question is determined by the allegations of the petition. See authorities cited immediately above.

We have carefully read the fact allegations in plaintiff’s petition, and are of the opinion that plaintiff’s suit is not one involving title to or any other rights in land. Plaintiff does not sue to recover title to land, or to remove any cloud or encumbrance to title to land. The suit is on a note, and to foreclose on certain contractual rights concerning the sale of crypts in a mausoleum. It is nowhere alleged that plaintiff had any title to any land or real property. The rights which, according to the petition, plaintiff had from the assignment of the collateral agreement by Mausoleum Sales Company, Inc. to the trustees and Whalen, and the subsequent assignment of all such rights to plaintiff, were the rights to the proceeds of the sale of 80% of the crypts in the mausoleum reserved by the builder of the mausoleum in its contract with the Cemetery Association. Such rights were to be held in trust by trustees named for that purpose to secure the payments of the note in litigation. Such rights did not create any interest in land, but constituted personal property.

Nowhere in the petition does plaintiff claim to own any title to the crypts, even if it be conceded, which we do not, that such crypts constitute lands. The most that plaintiff claims is a first and prior lien on the crypts, on which a foreclosure is asked. “ * * * it is well settled that an action to foreclose a lien on real estate is not governed by the provisions of Exception 14. * * .* ” Bennett v. Langdeau, Tex.Sup.Ct., 362 S.W.2d 952, 955.

In Brader v. Ellinghausen, Tex.Civ.App., 154 S.W.2d 662, on page 665, the court had this to say:

“We have outlined the holding in each of the cases cited by appellant, to demonstrate that none of them is in conflict with the decisions holding that a suit for foreclosure of a lien is not governed by Section 14. * * * An allegation that one or more of the defendants is claiming some character of interest in the land does not convert the suit into one affecting the title in such way as to bring the suit under Section 14. * * Citing authorities.”

We hold that venue in Hidalgo County as to defendant Weaver can not be sustained under Exception 14.

The trial court erred in overruling the plea of privilege of defendant Weaver. The facts were fully developed. The cause against Weaver is severable from that against the other defendants. The judgment of the court as to the defendant Weaver is reversed, and judgment is here rendered sustaining his plea of privilege, and changing the venue of this cause against defendant Weaver to one of the district courts of Harris County, Texas. Rule 89, Texas Rules of Civil Procedure.

Reversed and rendered.


author: HUGHES, Justice.

text:
    Reginald ATKINSON, Appellant, v. Sam THOMAS, Appellee.
    No. 11468.
    Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1966.

      Grindstaff & Grindstaff, Everett J. Grindstaff, Ballinger, for appellant.
    Wilson, Logan, Lear & Massey, Ralph Logan, San Angelo, for appellee.
   HUGHES, Justice.

This is a statutory election contest, appellant Reginald Atkinson being the contestant and appellee Sam Thomas being the contestee. Both parties were candidates at the Democratic Primary Election held in Irion County on the 7th of May 1966 for the office of County Judge. The official result of the election was 285 to 284 in favor of appellee. The result of this contest in the court below was 283 to 277 in favor of appellee.

Appellant has challenged the validity of twenty one votes on the ground that the persons casting such votes had not resided in Irion County for the last six months prior to the election. Art. 5.02 Election Code, Vol. 9, Vernon’s Ann.Tex.Civ.St. The first seven of these challenged votes were cast by single persons and they will be first discussed. The relevant facts regarding these voters will now be stated:

Maxine Van Court

Miss Van Court is a school teacher. She teaches outside of Irion County. She registers her automobile and has paid her poll tax in Irion County. Her father and mother live in Irion County and Miss Van Court spends her holidays and summers with them. Miss Van Court was reared in Irion County.

R. B. Mitchell

Mr. Mitchell was reared in Irion County from the time he was a small child. He owns property in Irion County, does his banking there and has voted there since 1920, and has never voted elsewhere. He considers Irion County his home.

Mr. Mitchell testified, in part, as follows:

“Q And where do you presently live, please sir?
A My home is in Irion County.
Q All right. And where do you live?
A I stay at present with my sister in San Angelo.
Q And at what address ?
A 121 North Poe.
Q How long have you stayed with your sister at that address?
A Well, I’d say off and on for about four or five years.
Q And where did you stay previous to the time that you stayed there with your sister?
A Most of the time here in Irion County.
Q Do you own the home there at North Poe?
A No, sir.
And are you married, Mr. Mitchell ? a
No, sir. .<⅞
Q And at any time during the past four or five years have you stayed at any other place other than there in San Angelo with your sister ?
A No, I haven’t; other than there and here in Irion County.
Q Do you have a home or anything here in Irion County?
A I own property here, yes sir.
Q Do you have a house that you actually stay in at night?
A There’s a place — there’s several places here that I spend the night any time I am here.
Q But you don’t actually have a house ?
A I don’t own a house. I own other property.
Q Well, is it rented out?
A No, sir.
Q And during the last year have you spent the majority of the nights in San Angelo at your sister’s?
A I have spent the majority of the nights in San Angelo, yes sir.
Q And it is just occasionally that you come over here?
A I won’t say occasionally; I am over here quite often.
Q How often would you say ?
A I’d say an average of about twice or three times a week.
Q And is it for several hours a day when you come over here ?
A Well, sometimes I spend the night here, maybe two or three nights; other times I’m just here for a few hours and go back.
Q Do you stay with some friends when you might spend overnight ?
A Yes.
* * * * * *
Q How long has it been since you had some livestock out here ?
A I think about three years.
Q Why are you living in there with your sister at the present time ?
A My sister, she is not exactly an invalid, but she needs someone to be with her, and I am in the same shape.
Q I believe you are a disabled veteran ? A That’s right.
Q World War II?
A That’s right.”

Mr. Mitchell paid his poll tax for previous years in Irion County and did his banking business there. He thought Irion County should be his home.

Arthur Mclnteer

Mr. Mclnteer is unmarried. He has voted in Irion County for the past 33 years, owns property there, considers Sherwood, in Irion County, his home and plans to live in Irion County when he retires. Mr. Mcln-teer testified, in part, as follows:

“Q And where do you live?
A Well, I live at the ranch at Big Lake, about a couple of miles the other side of the county line.
Q And is that in Reagan County ?
A Yes, sir.
Q And do you work there on this ranch ?
A Yes, sir.
Q Whose ranch is it ?
A. Mrs. Vester Hughes.
Q And how long have you worked on this particular ranch?
A Oh, about 29 years.
Q Been there quite a while, haven’t you?
A Two or three days anyway.
Q And have you lived on this same ranch during that 29 years ?
A Yes.
Q And have you ever served on juries in this county?
A No, they called me one time, but told me I was a single man and didn’t want me on the jury.
Q Have you served on Grand Juries here?
A No.”

Vester T. Hughes, Jr.

Mr. Hughes testified, in part, as follows:

“Q Where do you live, Mr. Hughes ?
A My home and permanent residence is Mertzon; my business address, 4300 First National Bank Building, Dallas.
Q All right. And you are a lawyer ?
A That’s right.
Q How long have you been practicing in Dallas, Vester?
A 1955; 11 years, July.
Q And are you practicing by yourself or are you with some firm ?
A I am a partner in the law firm of Jackson, Walker, Winstead, Cantrell & Miller.
Q And how long have you been a partner in this firm?
A 1958, October.
Q And did you practice with this firm between 1955 and ’58 ?
A I did.
Q And where do you live in Dallas?
A My apartment presently is 4717 Bowser, Apartment No. 22.
Q And how long have you been living in this apartment?
A I think approximately eight years. I am getting ready to move.
Q Are you married ?
A I am not.
Q You said that you claim Mertzon as your permanent home. How many times do you come here each year?
A That will depend on the year. Sometimes several; sometimes comparatively few.
Q Your mother lives here, does she not?
A Yes, sir.
Q Is most of the time to visit with her on holidays or special occasions ?
A That’s right. I have an interest other than that in the home. I am a re-mainderman in the will.
Q And is that in ranch property also?
A Not in Irion County.
Q Reagan County ?
A Reagan County.
Q Well, since June 1st of 1965 approximately how many times would you say that you have been back to Mertzon ?
A Six or less; I really don’t know. Some for several days’ duration and some for a day or so.
Q What would be the longest period of time possibly that you have come back within the last year?
A A week or less.”

Mr. Hughes went through junior year in high school in Mertzon and finished high school, college and law school elsewhere, coming to Mertzon in all summer months. After returning from the Army, Mr. Hughes practiced law in Mertzon for a short time. He was registered with the Irion County Draft Board and was called to service by it. He registers his automobile in Irion County, files his income tax from there, receives mail there and was twice a delegate from Irion County to the State Democratic Convention and was an alternate delegate in 1956.

Mr. Hughes has no present intention of terminating his law practice in Dallas.

Mr. Hughes has some personal belongings in Mertzon and he considers Mertzon his home and legal residence.

Joe Robert Thorp

Mr. Thorp is single, is a heavy machine operator, moves about in his work, but he considers his parents’ home in Mertzon to be his home.

Mr. Thorp testified, in part, as follows:

“Q And where do you presently live?
A I live in Albuquerque.
Q In Albuquerque, New Mexico?
A Yes.
Q And how long have you lived in Albuquerque ?
A Since about the 1st of February.
Q About February?
A Yes.
Q And where did you live prior to February?
A I was here in Mertzon.
Q And what were you doing in Mert-zon?
A I was taking it easy, resting, loafing.
Q How long were you here ?
A During the month of January.
Q During the month of January. Approximately how long during January?
A Nearly all month, lacked a few days of being a month.
Q And where were you staying?
A I was staying with my mother and father.
⅜ ⅜ ⅜ ⅜ ⅜ ‡
A I was at Eldorado the first of the year.
Q First of’65?
A Right, because this will be easier. Went to Midland, worked for the Ruby Construction Company; went to Sanderson when they had that washout and stayed down there about two weeks. I left Sanderson and went to Fort Worth; they sent me back to Alpine, stayed there two months and I lived in the hotel; and went back to Midland; from Midland I went back to Dallas, stayed there two weeks; back to Fort Worth two weeks.
Q So we can say during the year 1965 you were at several different places with your work?
A Yes, and whenever I was that distance I would always come back to Mertzon.
Q Came back to visit the folks ?
A That’s right, and spend time.
Q Have you ever had a home or a house here in Irion County after you have been grown, other than living with your folks ?
A No.
Q When you moved around these different places like you did in 1965, and also, say, like in Albuquerque, where did you usually stay ?
A I rented a bedroom in a private home. Whenever I was in Sander-son, Forth Worth, Dallas, they paid my expenses, and I stayed in motels and hotels, and they even bought my cigarettes.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Q And at least for the year 1965 and up until May 7, 1966, taking into consideration all of the different places your employers have moved you around to, you haven’t had an opportunity to acquire a legal residence anywhere except right here in Irion County, have you?
A That’s right.
Q And were you born here?
A Yes, sir.”

Mr. Thorp has paid his poll tax rather regularly in Irion County. He gets mail in Irion County and has a bedroom and clothes in his parents’ home. He owns no real estate in Irion County.

Drew Mclnteer

Mr. Mclnteer is single, a man 68 years of age, who has called Sherwood his home all of his life. He has a homestead and personal belongings in Irion County, stays part time there, and has voted in Irion County since becoming of age.

Mr. Mclnteer had worked on the Vester Hughes Ranch in Reagan County until injured about a year ago after which time he went to his sister’s place in Tom Green County where he stayed until September 1, 1965; then he went, on doctor’s orders not to work, to South Texas where he stayed 4½ months. He then returned to his sister’s in Tom Green County until March 1, 1965, when he returned to Irion County.

Mrs. Sammy Sugg

Mrs. Sugg did not testify, nor did any personal acquaintance of hers testify regarding her residence. Mr. Alvie Baxter, Sheriff of Irion County, testified that he had been Sheriff since 1960 and that he knew Mrs. Sugg by sight and last saw her about one year ago in Mertzon. We quote from the testimony of the Sheriff:

“Q Do you know where she lives ?
A No, I don’t for sure.
Q Do you know if she lives in Irion County ?
A Not that I know of.
Q To the best of your knowledge do you think she lives outside of Irion County ?
A To the best of my knowledge, all I know is her lawyers buy her license plates for her car and they have me to send them to her address in California.
Q And how long have you been doing that?
A Well, ever since — I guess ever since I have been in office here.”

The Sheriff also testified that Mrs. Sugg had paid her poll tax in Irion County since 1960 and that she owned a home in the County. Her poll and property taxes were attended to by her attorneys.

Art. 5.08, Election Code, Vol. 9, V.T.C.S., provides, in part, that the “residence” of “a single man is where he usually sleeps at night.”

It is our opinion that it is conclusively shown that neither Mr. R. B. Mitchell, Mr. Arthur Mclnteer, Mr. Vester T. Hughes, Jr., Mr. Joe Robert Thorp nor Mr. Drew Mclnteer were qualified to vote in the May 7, 1966 primary for the reason that none of these men for a period of six months prior to such election usually slept at night in Irion County. See Cramer v. Graham, 264 S.W.2d 135, San Antonio C.C.A., writ ref., where the Court, Justice Pope writing, stated: “ ‘Usually’ means customary or habitual, and, as applied to a place of abode, has been defined as ‘customary or settled place of residence; a regular, fixed and permanent residence, as distinguished from a temporary stopping or abiding place.’ Ballentine’s Law Dictionary, p. 1323.”

Appellee relies upon Mills v. Bartlett, 377 S.W.2d 636, Tex.Sup., as sustaining the validity of these votes because of the intention of these voters to maintain a voting residence in Irion County coupled with their sporadic visits there.

We do not consider Bartlett to be controlling. That case involved a student exception from the rale that the residence of a single man is where he sleeps at night. No such exception is involved here.

The vote of Mrs. Sammy Sugg is not shown to be invalid by evidence of a conclusive nature. We doubt the sufficiency of the evidence to raise the issue of its invalidity. In any event, we sustain the implied finding of the trial court that she was a legal voter.

We also sustain the action of the trial court in not invalidating the vote of Miss Maxine Van Court.

While no authorities on the point have been cited to or found by us, we are of the opinion that Art. 5.08, supra, applicable to a “single man” is not applicable to Miss Van Court.

In Glover v. Cobb, 123 S.W.2d 794, Dallas, C.C.A., writ ref., it was held that the word “men” in a statute did not include “women” under Sec. 3, Art. 10, V.T.C.S., providing that the masculine gender shall include the feminine.

Single women, as a rule have closer home ties than single men and this may have motivated the Legislature in not defining the residence of single women to be the same as the residence of single men.

We advert then to the general rule that a school teacher who returns home during vacations and holidays may retain her voting residence at home if she so intends. See an Annotation on this subject in 98 A.L.R.2d 488. We limit our holding on this point to the fact that the school teacher voter here is a female. It is, therefore, not in conflict with the holding in Linger v. Balfour, 149 S.W. 795, Amarillo C.C.A., n. w. h.

The next eight votes which are challenged by appellant were cast by married persons. We will briefly state the evidence as to each voter.

Hayden Ellis

Mr. Ellis owns a home in San Angelo where he has lived for about 3 years. His wife, daughter and stepson live with him. Mr. Ellis also owns a homestead in Mertzon consisting of 65 acres and a three bedroom house. He also leases ranch and farm land in Irion County, the farm having on it a furnished house where the family stays in the summer and when the children are not in school. Mr. Ellis stays at this place some during the school year. Mr. Ellis, excepting 4½ years, has lived in Irion County since he was twelve years of age and he does his banking and most of his business there, and receives mail there. Mr. Ellis sleeps the majority of nights in San Angelo. He stated that he moved to San Angelo to create a happier atmosphere for his family, following his divorce, and that the move was temporary and that he intended to return to Mertzon after the children finished school which would be nine or ten years.

Mr. and Mrs. H. H. Linthicum

Mr. and Mrs. Linthicum own ranches in Irion and Schleicher Counties. They formerly lived just north of Barnhart in Irion County where they still have a ranch house suitable for living. They moved to San Angelo about four years ago in order to educate their three children, one of whom is not in school, the other two being in the fifth and seventh grades, respectively. The Linthicums own their own home in San Angelo and rendered it as their homestead. With respect to this home Mrs. Linthicum testified, “Well, that is my home for the present. In the future, I will probably move back to Barnhart, when my children finish their education.” Mrs. Linthicum spends most of her time in San Angelo, but she visits the ranches on weekends and in the summer. The Linthicums register their car and have always voted in Irion County, bank there, and consider the ranch south of Barnhart as their permanent address and place of residence.

Mrs. Gene Linthicum

Mrs. Gene Linthicum who formerly lived in Irion County has lived in a rented apartment in San Angelo with her husband and children since September, 1965. The youngest child is eight years of age. She has voted in Irion County since 1951, receives mail and owns ranch property in Irion County. She has continued to operate ranch properties in Irion County, going back and forth from San Angelo, staying at the ranch in summertime and maintaining her home in Irion County. She testified that after the children have finished their schooling, she intends to make her home in Barnhart, Irion County.

Mrs. Len Mertz

Mrs. Mertz is the wife of Len Mertz. When asked where she lived she said, “Two places” one in Irion County and the other in San Angelo. The Mertzs’ have owned the San Angelo home for forty years. Mrs. Mertz has because of her health spent most of the time for the past several years in San Angelo. She has voted in Irion County since 1940 “because our livelihood came from out there.”

Len Mertz

Mr. Mertz lives at the ranch in Irion County which his father owned when Mr. Len Mertz was born. He spends 97% of his time at the ranch driving to San Angelo two or three times a week for mail and supplies. He has voted in Irion County since 1940 and has never voted elsewhere. He banks in San Angelo.

Mr. and Mrs. Joe Funk

Mr. Funk was deceased at the time of trial. Mrs. Funk testified that she and Mr. Funk had lived at the ranch in Irion County for 14 years and in San Angelo for 20 years. For the past several years the Funks stayed most of the time in San Angelo because of the illness of Mr. Funk and Mrs. Funk’s mother. The Funks moved to San Angelo when their son started to school and later moved to the ranch and stayed there until the illnesses mentioned.

Mr. Funk served on petit and grand juries in Irion County for many years. The Funks have voted in Irion County for many years. Mr. Funk’s will recited that he was a resident of Tom Green County, but it was probated in Irion County.

Art. 5.08, supra, provides in part that the residence of a married man is “where his wife resides.” It has been held, however, that despite this statute the husband has the power to fix the domicile or residence of the family. Harwell v. Morris, 143 S.W.2d 809, Amarillo C.C.A., n. w. h., Farrell v. Jordan, 338 S.W.2d 269, Houston C.C.A., writ dism. The latter case also holds that the above statutory languages means that the residence of the husband is where the legal residence of the wife is, not where she may physically reside.

We agree with these constructions or modifications of that portion of Art. 5.08 now under discussion. We also note that Art. 5.08 was amended in 1963, subsequent to the decisions in the two cases cited above, using the same language construed in those cases. This tends to prove the correctness of such constructions.

This view of the law results in the clear validation of the votes of Mr. and Mrs. Len Mertz, as the trial court concluded.

We believe that the vote of Mr. Hayden Ellis is invalid since there is no evidence, other than his expressed intention to return to Irion County after his child finished school ten years hence, to sustain its validity. Intention alone is not sufficient. Mills v. Bartlett, supra. It is true that Mr. Ellis does many things in Irion County and transacts most of his business there. This, however, is not the test for fixing a voting residence. A person may transact business in many places but he can vote in but one place and that is where he resides. There are exceptions to this rule but none is applicable to Mr. Ellis.

We hold as a matter of law that the intention of Mr. Ellis to return to Irion County after a lapse of ten years does not make his abode in San Angelo a temporary one.

In the same category fall the votes of Mr. and Mrs. H. H. Linthicum. They live in San Angelo from which place they operate ranches in Irion and Schleicher Counties. The record does not reflect any present intention on the part of Mr. and Mrs. Linthicum to move to Irion County within such time as to make their residence in San Angelo a temporary one.

For similar reasons, we hold the vote of Mrs. Gene Linthicum to be invalid. Her actual place of habitation is with her husband and children in San Angelo from which base she operates her ranch properties.

We have doubts regarding the votes of Mr. and Mrs. Joe Funk. We have concluded that there is more than a scintilla of evidence to sustain the validity of these votes and we sustain the trial court in upholding them. A move caused by illness is usually and hopefully temporary. We cannot hold as a matter of law that the move of the Funks to San Angelo was of a permanent nature, or so intended. This conclusion is corroborated by the probate of Mr. Funk’s will in Irion County.

Sam, Birdie and Nancy Langford

The next votes to be considered are those of Sam, Birdie and Nancy Lang-ford. The attack on them is that the one year’s residence in the State is not met. We overrule this challenge.

Sam Langford, his wife, Birdie Lang-ford, and their unmarried daughter, Nancy, were former residents of Irion County where they owned a property interest in a cafe with Mr. Langford’s parents. They had lived in Oklahoma for approximately two (2) years, but had made plans to return to Irion County at Christmas, 1964. They had sent some belongings back to Irion County with Mr. Langford’s mother at that time. They were planning to take over the operation of the cafe when their lessee gave it up. This was due to be in June, 1965, but Mr. Langford’s mother called them several months before then and confirmed that the lessee was giving up the cafe and wanted to know the disposition of the Langfords. They had told her at that time that they wanted the cafe. Sam Langford hauled a load of belongings to Mertzon in March, 1965 on his trailer and on the 21st day of April, 1965, he brought another load of furniture and belongings from Oklahoma to Irion County. He rented a trailer to bring that load to Texas, and the receipt for the rental of the trailer was introduced in evidence. Sam Langford quit his job about the 1st of April, 1965. Other belongings were also shipped during April, 1965. Their friends and fellow-workers in Oklahoma knew in April, 1965 that the Langfords were moving to Texas and actually Sam Langford was last in Oklahoma in April. He testified:

“Q Alright, and when did you last move to Mertzon?
A In — oh, it’s a process of several loads, from the latter part of March, also in April, and then the remainder of the household goods was in — oh, I believe it was in June.
* * * * * *
Q But it was at Christmas that you definitely made the decision ?
A Oh yes, that is when we told them that we would definitely take it back.
******
Q And how did you leave it with your mother and father as to when you would come?
A I told them — the Sawyers had been real good friends of ours, well, for years, since we first came to Irion County in ’46. I told them not to even suggest that we wanted them out, but when they decided to get out, well then we would take it back or take it over, so actually it was April or rather March is when Mrs. Sawyer told my mother that they were going to have it give it up; so I moved the first load, actually my first load of our belongings from Oklahoma City to Mertzon in March.”

Mertzon has been the permanent address of Mr. and Mrs. Sam Langford and their daughter since 1946.

We believe these facts are sufficient to sustain the finding of the trial court establishing the legal residence of this family in Texas for more than one year preceding the election. Appellant cites the case of Farrell v. Jordan, 338 S.W.2d 269, Houston, writ dismissed, as opposing this conclusion. There the Court of Civil Appeals merely sustained a trial court finding that timely residence was not established. Our legal posture here is the same; but the result is just the opposite.

There are other facts, unnecessary to relate, upon which the trial court probably could have made a finding that one year’s legal residence was not established. No point is made that any finding of the court was against the weight of the evidence; hence, we need consider only the evidence to sustain such finding.

Mr. and Mrs. J. H. Bullard

The Bullards did not testify. They list no property for taxation in Irion County. Mr. Tyson Gentry, Democratic Precinct Chairman, testified that the Bullards lived in Lubbock and had not lived in. Irion County for several years. Sheriff Alvie Baxter testified that the Bullards had not lived in Irion County for the past eleven years. The only evidence of a contrary nature is that they pay their poll taxes in Irion County and claim such county as their residence. In our opinion, this is not sufficient evidence to raise an issue concerning their residence. We hold, as a matter of law, that the Bul-lards are shown not to be residents of Irion County. Their votes should not be counted.

Mr. and Mrs. William Stokes Thorp

Mr. and Mrs. Thorp have two children. They have lived in Santa Fe, New Mexico, from July 1965 to February 1966 and in Questa, Mexico, since February 1966. Their children attended school in both places.

Mr. Thorp is in the construction business which requires him to move about.

Prior to 1965, the Thorps lived in Mert-zon for about one year in a trailer house which they sold after leaving. They rented a house in Santa Fe and have since started the purchase of a trailer house and are planning to locate it on property in Irion County which they are buying when they return, as planned, to Irion County in the Fall of 1966.

The Thorps have voted in Irion County for the past 14 years, give Mertzon as their permanent address and intend to return to Irion County each time they leave.

It is our opinion that the votes of Mr. and Mrs. Thorp should not be counted. They have no fixed place of abode in Irion County to which they may return after leaving. The only habitation to which they could have returned was the trailer which they sold. The move from Irion County was complete and once the trailer was sold, no visible evidence of their residence there remained. Their residence in Irion County depends solely on their intention which is not enough. It may be unfortunate that people may not select their voting residence regardless of where they live, but the law does not permit this to be done.

Simon Gonzales

Mr. Gonzales has worked on the Penrose Metcalfe ranch in Irion County for 46 years. About 9 years ago he moved to San Angelo after his wife became ill. She requires medical attention once or twice a month. Her daughter and daughter-in-law now help care for her. Mr. Gonzales intends to return to the ranch if his wife’s health improves. Mr. Gonzales considers Irion County his place of residence and has voted there since 1926.

Doubtfully, we hold that this evidence is sufficient to sustain the trial court’s finding that Mr. Gonzales was a resident of Irion County.

W. L. Mann

Mr. Mann moved to Irion County in 1936, since which time he has voted there. Mr. Mann is now retired. Three years ago he moved to Stamford in order that his daughter may help care for his invalid wife. Mr. Mann owns a home in Irion County and intends to return to it when the condition of his wife will permit.

We sustain the trial court in finding Mr. Mann a resident of Irion County.

The absentee votes of Mr. and Mrs. William Stokes Thorp, Dale Tankersley, Mike Brauns and Vester T. Hughes, Jr., are challenged on the ground that they did not comply with the provisions of the Texas Election Code regulating the casting of absentee ballots.

Since we have held that Mr. and Mrs. Thorp and Vester T. Hughes, Jr. were not entitled to vote in the May Primary in Irion County because lacking in residence qualifications, we will not discuss the point here made as to their non-compliance with laws with respect to absentee voting.

The application of Mr. Dale Tankersley for an absentee ballot is copied in full:

“2621 Bachman Blvd.
Dallas, Texas 75220
April 18, 1966
Mrs. Kirby Lawdermilk
County Clerk, Irion County
Mertzon, Texas
Dear Kirby:
Please send me an absentee ballot to the above address for the Democratic primary. I want to vote absentee.
Please give my regards to everyone at the Courthouse.
Sincerely,
/s/ Dale
Dale
Enel: Poll Tax”

This application completely ignores all of the elaborate provisions made for absentee voting by the Legislature. Art. 5.05 Texas Election Code. In our opinion, it is void, and it did not authorize the County Clerk to send Mr. Tankersley a ballot and that such returned ballot is void and should not be counted.

If we were to countenance the total disregard of provisions of Art. 5.05 and allow this ballot to be counted, we would, in effect repeal such Article, and this we have no power to do.

We agree with the opinion of the Court in Farrell v. Jordan, 338 S.W.2d 269, Houston C.C.A., writ dismissed, that the Legislature has made the manner of casting absentee ballots mandatory and that if the statutory requirements were not complied with the votes were void and should not be counted.

We will not copy the application of Mike Braun because it was on a printed form and the only complaints regarding it were that it was not dated and was mailed from Mertzon, Irion County.

The envelope in which the application was mailed was postmarked at Mertzon, April 12, 1966. This was five days before absentee voting began. Under Sub. 1, (ii) mailing from within the county was permissible.

We believe the date on the envelope in which the application was mailed may be considered as a part of the application in order to supply its date.

The vote of Mr. Braun is upheld.

Appellant has a point to the effect that the trial court erred in not counting the votes of Mr. and Mrs. Jackson Tankers-ley.

The Tankersleys live on a ranch. The ranch house is very near the Schleicher County line. They did not know in which county the house was located. They have voted for many years in Irion County.

The evidence is sufficient, in our opinion, to sustain the finding of the trial court that the Tankersleys did not reside in Schleicher County.

Mrs. Melvin Boyd, custodian of the records in the Agricultural Stabilization Office in Irion County, testified to the accuracy of certain aerial photographs or maps constituting part of the official records of her office and that they show the Tankersley house to be in Schleicher County. The objection to these photographs or maps was as follows:

“If it please the court, we still renew our objection to the inaccuracy of the map for the purpose of determining the location of the house, plus the fact that it is not shown by whom the county line was drawn on the index map, and that the county line does not show on Defendant’s Number 10, and that there is no accurate way of measurement as to Defendant’s Number 11 to determine where the house is located or to determine whether or not, secondly, it is in Irion or Schleicher County.
THE COURT: Overrule the objection.”

We consider this objection to go to the weight of the map as evidence, and not as to its admissibility.

Also, there is other evidence consisting of a map attached to the probated will of Fayette Tankersley, together with the testimony of appellant, which places the Tank-ersley house in Schleicher County. Appellant does not brief his objection that this map was hearsay, and we need not discuss it.

We sustain the trial court in not counting the votes of Mr. and Mrs. Jackson Tankersley.

Appellant complains that the trial court did not throw out seven ballots which, in the process of looking for ballots held to be illegally cast, were discovered not to have signatures on the ballot stubs. The trial judge ordered these unsigned stubs put back in the stub box. No objection to this procedure was then made by either party to this suit. Appellant has waived any right he may have had regarding these ballots by not seeking appropriate relief in the trial court. He cannot complain here for the first time. Graham v. Villareal, 242 S.W.2d 258, San Antonio C.C.A., n. w. h.

The judgment of the trial court is reversed with instructions to ascertain for which party to this suit the votes challenged by appellant and herein held to be invalid were cast and to deduct such votes from the total vote shown for each party by the judgment of the trial court from which this appeal was taken, and to render judgment in accordance with such tabulation.

No motions for rehearing will be entertained.

Reversed and rendered with instructions.

      . We Drobably would have said “substantially complied with.’


author: PRESLAR, Justice.

text:
    SOCONY MOBIL OIL CO., Inc., et al., Appellants, v. C. M. FROST et al., Appellees.
    No. 5750.
    Court of Civil Appeals of Texas. El Paso.
    July 20, 1966.
    Rehearing Denied Oct. 5, 1966.
    W. B. Browder, Jr., Stubbeman, McRae, Sealy & Laughlin, Frank C. Ashby, Midland, Lawrence & Lawrence, Tyler, Hardie, Grambling, Sims & Galatzan, El Paso, for appellants.
    Irby L. Dyer, Turpin, Smith, Dyer & Hardie, Jack T. Akin, Midland, Maurice R. Bullock, Bullock, Kerr & Scott, Fort Stockton, for appellees.
   OPINION

PRESLAR, Justice.

This is an appeal from a judgment of the 83rd District Court of Pecos County, Texas which decreed that a rectangular tract of land adjoining and lying east of Sections 49 and SO, Block OW, Pecos County, Texas, and containing 304.51 acres, was vacant, unsurveyed public land belonging to the State of Texas. Trial was to the court without a jury, and the parties are in agreement that there are no material and controlling facts which are in dispute; that the determination of the appeal is based solely on the application of law to such undisputed facts. As stated in appellees’ brief, the question is: “The only question in this appeal is whether the calls in the corrected field notes of Secs. 49 and SO, calling for them to adjoin the West line of Block 143, and leaving no vacancy, control over their conflicting calls for distance, which leave the vacancy decreed by the judgment.” We are of the opinion that the controlling facts bring this case within the rule that a call in a junior survey for an adjoining existing survey controls over a call for course and distance, and that the trial court erred in failing to apply such law to the facts.

To resolve the conflict in the calls by the surveyor, we need first to look at the rules of law respecting the character and weight of the evidence which we must consider. To ascertain the intention of the surveyor, certain calls are considered to be more reliable, material, important and certain and, therefore of higher dignity. Under such rules of evidence, calls are ordinarily given priority in this order: (1) all calls for natural objects, such as rivers, creeks, mountains, trees; (2) calls for artificial objects made by man, such as monuments, stakes, marked lines and corners; (3) calls for course and distance; and (4) calls for quantity or acreage. Our conflict here is between calls for adjoinder and one for distance, as to which the general rule is as stated by the Supreme Court in Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801, as follows: “The general rule is that a call for adjoinder is given controlling effect over a call for course and distance.” That rule is so well established in this state that the lists of cases following it occupies one full page where cited in 9 Tex. Jur.2d 514 — 515. The survey line called for must be “ascertainable”, and when it is ascertainable the adjoinder call has the same rank as a call for natural or artificial objects — that is, the highest rank. Kirby Lumber Co. v. Gibbs Bros. & Co., Tex.Com. App., 14 S.W.2d 1013. It is not disputed in the record before us that the senior survey line called for in this case was ascertainable, but appellees take the position that the surveyor was mistaken as to its location. In the construction of Sections 49 and 50 the surveyor, O. W. Williams, called for the East lines of those sections to be on the West line of Block 143, the senior survey of L. W. Durrell. The distance called for to reach such senior survey was insufficient. Later, he filed corrected field notes in which the distance call was shortened even more, and the error was increased. His distance call of 2116 varas was then short of Block 143 by some 510 varas, and if the distance call is used, the East line of Sections 49 and 50 is fixed some 510 varas west of the West line of Block 143, and the vacancy exists. This compounded error is principally the evidence which could be relied on to establish that the surveyor was mistaken as to the location of Block 143. We think the record explains the mistake of distance sufficiently so that the adjoinder call is not shown to be a suppositious, conjectural, or mistaken call. When we consider the intention of the surveyor, there can be no doubt but that his intention was to adjoin the senior survey. The application to survey in the first instance was filed by him as agent for the party desiring the survey, and it called for adjoinder, and in the construction of the tier of sections of which these two are a part, his original field notes contained some 20 adjoinder calls and his corrected field notes 12. The two sections involved had three adjoinder calls in the original field notes and six such calls in the corrected field notes and were platted in the adjoinder position in his reports to the General Land Office. As indicated, the facts as to what he did in making the survey do not lead to the conclusion that he was mistaken as to the location of the adjoining survey. His calls for course were correct. In other words, he knew where he was going but was mistaken as to how far it was. The tier of sections are patented in the position called for by the surveyor so far as course is concerned, and some are patented in the ad-joinder position, including Section 16, which has as its common line the South line of Section 49. The same is true of Section 56, which has as its common line the North line of Section 50. In fact, the field notes on which Section 56 are patented call for its Southeast corner to be the same as the Northeast corner of Section 50. This point would be on the West line of Block 143, as called for by the surveyor Williams. We think the facts of this case distinguish it from the cases relied on by appellees, for, when all is said and done, the only mistake here was- as to distance, and the distance call is held by the authorities to be the most unreliable of all. Krider v. Wintermann, Tex.Civ.App., 108 S.W.2d 452. As indicated, we do not believe that the facts of this case bring it within what is termed an exception to the adjoinder rule. Its facts distinguish it from the cases principally relied on by appellees. The exception is stated in Blake v. Pure Oil Company, Tex.Com.App., 128 Tex. 536, 100 S.W.2d 1009, at page 1012:

“A call for adjoinder is ordinarily given controlling effect over a call for course and distance, but when it is proven that the call for the adjoinder was made by conjecture or under a mistaken belief as to the location of the adjoinder, such call does not control over course and distance. In such situation the call for ad-joinder will be rejected as inserted by mistake and controlling effect given to course and distance from known or undisputed corners, when under the facts of the particular case such construction of the survey is ‘most consistent with the intention to be derived from the entire •description.’ ”

Rooking at the record before us it would be difficult to treat the calls for adjoinder as ■“inserted by mistake”, for the application to survey called for adjoinder, the original field notes made some 20 calls for adjoinder, and the corrected field notes called some 12 times for adjoinder. Also important is the proviso (above italicized) that the call should be rejected when to do so would result in a construction most consistent with the intention to be derived from the entire description. In the Blake case the court said that the mistaken call should be rejected because such construction was most consistent with the intention to be derived from the entire description, and it harmonized the other terms of the field notes. It was then pointed out how that was true:

“This construction is the same in effect as a construction of block 7 by course and distance from its southeast corner on the undisputed west line of the Walling survey, the location of which southeast corner is proven by evidence hereinafter discussed. When block 7 is thus constructed, the lengths and courses of its lines are the same as those given in the field notes and shown on Starr’s map, it has the acreage called for in the deed and marked on the map, and it does not conflict with block 5, block 6 or block 8, or with the Juan Prado survey. On the other hand, if block 7 is constructed from or extended to the southeast corner of the Moore survey as located by Wathen, all of the lines of the block are given grossly excessive lengths and its acreage increased to approximately three times that called for in the deed and shown on the map, and block 7 as thus constructed conflicts substantially with the Juan Prado survey and conflicts with block 8 to such extent that block 8 contains only 14 instead of 38 acres.” (Emphasis ours.)

Thus, there was much more to Blake than in the case before us, and the same is true of State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, where the court, in order to harmonize the other terms of the field notes and to disregard as few of the calls as possible, rejected the adjoinder call as inserted by mistake. Honoring the ad-joinder call would have necessitated incorporating 550 varas in excess in the surveyor’s first call, reversing his second call, placing a shortage of 575 varas in his third call, increasing his fourth line by 213 varas, and ignoring his passing call for a natural object, Crystal Creek. And the court concluded that to do all of that would do violence to the configuration of the survey. In our case, giving effect to the calls for ad-joinder does no such violence to the remaining field note description. It simply changes the distance, with accompanying increase in acreage, and leaves the remaining terms of the field notes in harmony and unchanged. And as noted by the court in the Sullivan case, an inconsiderable excess in distance, standing alone, is not of itself evidence that the surveyor was mistaken in the location of the adjoinder for which he called. Whatever the record may reflect as to “mistakes” of the surveyor Williams at other points, the fact remains that as to Sections 49 and 50, his mistake was in his call for distance.

Being of the opinion that the calls for ad-joinder should in this case prevail over the calls for distance, the judgment of the District Court is reversed and judgment here rendered that the land described in paragraph 8 of such judgment is not vacant, un-surveyed, public land belonging to the State of Texas.


author: CHADICK, Chief Justice.

text:
    EAST TEXAS LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. George H. CARVER, Appellee.
    No. 7749.
    Court of Civil Appeals of Texas. Texarkana.
    July 12, 1966.
    Rehearing Denied Aug. 30, 1966.
    Will D. Pace, Tyler, for appellant.
    Sidney Lee, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a suit to collect hospitalization benefits provided by a family group hospitalization insurance policy. The judgment of the trial court is affirmed.

George H. Carver, husband of Tressie Carver a member of the family group covered by the insurance policy, sued East Texas Life and Accident Insurance Company for hospitalization benefits, penalty and attorney fees aggregating $321.14, and for interest from date of judgment, costs, etc., in a District Court of Bowie County.

The facts were developed in the course of a jury trial. The effective date of the insurance policy was May 28, 1964. Among the exceptions, limitations and reductions applicable to the insurance coverage is this :

“Part VIII.
3. Any sickness which results in a surgical operation shall be covered only if the cause thereof originated after this policy has been in force for six months.
⅜? iji ⅜»

Mrs. Tressie Carver underwent surgery December 8, 1964.

The single ultimate fact issue raised by the evidence was whether or not the cause of sickness requiring a surgical operation on Tressie Carver originated on or before November 28, 1964, the day the policy was in force for a period of six months. The trial judge’s written charge contained this instruction:

“To aid you in answering the immediately foregoing special issue, you are instructed that the cause of a sickness or disease originates when such sickness or disease first becomes manifest or active; and not necessarily at the earlier time when the medical cause of the disease may have begun or had its origin. The words sickness and disease mean a medically recognized sickness or disease and not merely a condition which might in the future give rise to a sickness or disease.” (Appellant’s objection is focused on the language emphasized here).

The language preceding the semicolon in the first sentence of this instruction aptly expresses the legal concept that for the purposes of this insurance contract the cause of a disease originates when the disease first becomes manifest or active. American Casualty & Life Company v. Gueringer (Tex.Civ.App.1947), 205 S.W.2d 423, no writ; see also Annotation: Insurance—Inception of Sickness, 53 A.L.R.2d 689, where it is said: “ * * * the illness, disease, or disability will ordinarily be deemed to have its inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can, with reasonable accuracy, diagnose the disease.”

Appellant finds no fault with the forepart of the first sentence of the instruction but its brief makes the barren charge that the language following the semicolon constitutes an attempt to ignore the plain meaning of the policy’s provision and rewrite the contract, and that the instruction “obviously confused and misled” the jury to the detriment of the appellant. The brief does not detail, illustrate, or suggest the changes in the plain meaning of the policy the instruction caused, nor is a source or evidence of jury confusion delineated. This criticized clause of the first sentence of the instruction appears to have been designed by the trial court to forestall misunderstanding in the application of the legal concept expressed in the language that precedes it. By use of the clause the trial judge pared away and put outside of jury consideration any thought that for the purpose of this case a sickness or disease has its origin at the inception of its medical cause. The court employed an explanatory technique of placing in juxtaposition an inclusive and an exclusive statement; saying positively that a disease originates when it first becomes manifest etc., and highlighting such instruction by excluding the idea that a disease originates when its medical cause begins.

This court perceives no harm incident to the segment of the instruction under attack. On the contrary it appears to be a clarification that obviates jury confusion by removing an opportunity for conjecture about the time that a disease has its inception in a case such as this. As to rewriting the contract no lawsuit has been brought to the court’s attention wherein an instruction substantially similar was given. but this thread of clarifying language expressed in the criticized clause runs through several court opinions that are at hand, as well as a respected legal text. Old National Insurance Company v. Johnson (Ct.Civ.App.1958) 312 S.W.2d 715, no writ; American Casualty & Life Company v. Butler (Ct.Civ.App.1948), 215 S.W.2d 392, Wr.Ref., N.R.E.; American Casualty & Life Company v. Gueringer, supra; Reserve Life Insurance Company v. Lyle (Okl.1955), 288 P.2d 717, 53 A.L.R.2d 682; see also 45 C.J.S. Insurance § 893, p. 972. The use of substantially similar language indicates these authorities tacitly agree that the language condemned by appellant in this instance is useful in making a precise statement of the agreement between the parties to the insurance contract. The second sentence of the quoted instruction had much the same purpose as the first and conveys substantially the same intelligence. No objection was directed to the second sentence in the trial court, nor is complaint urged against it now. Appellant’s first point of error is overruled.

Appellant’s next two points of error, one directed to the great weight and preponderance of the evidence, and the other to jury misconduct, have been considered in context with the entire record. An adequate recital of all the facts and circumstances would inflate this opinion beyond worthwhile proportions and will be dispensed with as the record does not reflect reversible error in either respect.

The fourth is a no evidence point of error. It is argued that there is no evidence .that George H. Carver is entitled to the benefits payable under the policy because he assigned such benefits to St. Michael’s Hospital. George H. Carver filed his claim with the insurance company on a form labeled Texas Standard Hospital Insurance Form; (Rev. Sept. 1960); the following appears at the bottom of the claim form, to-wit:

“Assignment of Benefits
“I hereby authorize the East Texas Life and Accident Ins. Company to pay directly to St. Michael’s Hospital all benefits due me, if any, by reason of services described in the statements rendered, and as provided-for in the above policy contract with aforementioned insurance company. I will pay, at_Texas for all such charges incurred or for all charges in excess of whatever sums may be paid by the insurance company above mentioned.
“I direct that Medical and/or Surgical benefits (if any) be paid to
Dr. R. R. Brunazzi Physician
Geo. H. Carver Signature of Insured
L. Meyer Witness”

The appellant underpins its position with the following statement of the law from 1 Tex.Civ.Practice (1965 Rev.Vol.) 226 § 3.03.2 to-wit:

“If the Plaintiff fails to show a personal interest, or an interest in another for whom he is authorized to sue or who is authorized to sue in his name, the action will be dismissed. The interest must be presently vital; it is not enough that he may have had an interest in the past if it has terminated before the institution of the suit. An assignor who has parted with all legal and equitable title to a chose in action may not sue thereon, nor may suit be brought thereon in his name unless it is so brought by or at the behest of the assignee.”

The application in a proper case of the legal principles expressed by the quotation may be conceded, but examination of the purported assignment of benefits discloses that the instrument is not an assignment. It does not express an intent to make a grant to or vest in St. Michael’s Hospital George H. Carver’s right, title or interest in the benefits payable under the policy. It merely authorizes the insurance company to pay such benefits directly to St. Michaels. The instrument appoints St Michael’s as Carver’s agent to receive benefits due him. By definition an assignment is the act by which one person causes to vest in another his right or property, or an interest therein. Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364; Assignments, 6 Tex.Jur.2d 401 § 1. Point four is overruled.

The judgment of the trial court is affirmed.

       County court jurisdiction is transferred to the District Courts of Bowie County by Art. 1970-306, Vernon’s Ann.Tex.Civ.St.