author: WERLEIN, Justice.

text:
    John B. LOZICA, Appellant, v. Oscar P. CELLI et al., Appellees.
    No. 14090.
    Court of Civil Appeals of Texas. Houston.
    April 18, 1963.

      Barker, Barker & Coltzer; Robert G. Coltzer, Galveston, for appellant
    Armstrong, Bedford & Lambdin; Bart Hopkins, Galveston, for appellee.
   WERLEIN, Justice.

Appellees, Oscar P. Celli et al., brought this trespass-to-try title suit against appellant, John B. Lozica, to settle and determine a boundary dispute and to recover title and possession of a strip of land in Galveston, Texas, approximately 47 feet in width running generally north and south between U. S. Highway 75 to the north and Offats Bayou to the south, and lying between a tract of land to the east admittedly owned by appellees, sometimes referred to as the Celli Tract, and a tract of land lying to the west admittedly owned by appellant, sometimes referred to as the Lapanovich Tract, such strip being denoted on the accompanying map as D-D'-C'-C. Appellant appeals from the judgment of the trial court based upon the jury verdict determining that the boundary line as claimed by appellees, being the line marked D-C on said map, was the true boundary between the tracts of land' owned by the parties, and that appellant was not entitled to title and possession of said strip of land under his plea of the ten year statute of limitation.

The evidence shows that in 1946 appellant sold to appellees a tract of land out of Outlot 516, Trimble and Lindsey Survey of Galveston County, Texas, lying generally in the southeast corner of said Outlot, and being described by metes and bounds as follows:

“BEGINNING at an iron rod located at the intersection of the East boundary line of said Lot No. 516 with the South side of the right-of-way line of Interstate Highway No. 45 (formerly known as Galveston County Causeway Road); THENCE South 69 degrees 16 minutes West 371.2 feet along said South right-of-way line of said Highway to an iron rod set for corner ; THENCE South 25 degrees 18 minutes East at 345 feet, passing an iron rod, at 363 feet to the North Bank of Offats Bayou; THENCE in a generally northeasterly direction following the meanders of high tide of said North Bank of Offats Bayou to a point where same intersects the East boundary line of said Lot 516; THENCE North 25 degrees 18 minutes West along and with said East boundary line of said Lot 516, passing an iron rod at 52 feet and continuing in all 330 feet to the place of beginning, containing within the foregoing described limits 2.77 acres of land, more or less, together with all improvements thereon.”

At the time of such sale appellant owned •and still owns the tract of land lying in the southwest corner of said Outlot contiguous to the west boundary of the tract of land ■sold to appellees. According to the undisputed evidence there was at the time of the sale to appellees a line of concrete posts 6 inches in width, spaced approximately 10 feet apart along the line shown on said map as D'-C', extending from the Highway to the garage and south of the garage a fence of railroad ties or posts, and there was also a line of concrete posts and a retaining wall along the line marked A'-B' on the map. Before such sale appellant pointed out to appellees the lines of concrete posts as the west and east boundaries of the tract he was selling, and they took possession of such tract without making a survey, accepting the word of appellant that the tract as pointed out to them was the property described in their deed. Appellant contends that he remained in possession of that part of Lot 516 immediately west of the westerly line of concrete posts which he had pointed out to appellees as marking their property line. He asserts that he used the 47 feet in controversy which lay west of the concrete posts, being tract D-D'-C'-C on said map, and improved the same by raising the grade thereof, planting, leasing space for standards to support an outdoor bill board, and occupying a portion of the strip as a chicken yard and chicken house indicated on the map as I-II-III-IV.

In 1959 the Texas Highway Department began improving Highway 75 and desired to acquire a strip of land along the north line of the properties belonging to appellees and appellant, and indicated, based on its own survey, that the proper line dividing the properties of the parties was the line C-D on the map which is approximately 47 feet to the west of the line of concrete posts that the parties had always considered the line dividing the two properties. Shortly thereafter appellees filed this suit and appellant filed his cross-action in trespass-to-try title, claiming both the record title to the strip in question and also title under the ten year statute of limitation.

Appellant in his first point asserts that the evidence was insufficient to support the finding of the jury that the west line of the tract of land described in the deed from John B. Lozica to Oscar P. Celli and Erode Celli dated June 3, 1946, indicated on said map as D-C, as surveyed, located and marked on the ground by Surveyor L. L. Lowery, is the true location of the west boundary line of said tract: We have read the entire statement of facts and examined the many exhibits introduced in evidence, and carefully considered the testimony of all the witnesses including that of the five surveyors who testified at the trial, and have concluded that such finding is not so against the great weight and preponderance of the evidence as to -be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660; Tudor v. Tudor, 1958, 58 Tex. 559, 314 S.W.2d 793.

We overrule appellant’s assignment that the evidence established as a matter of law that he had matured title to the strip of land in controversy under the ten year statute of limitation. The evidence with respect to the character and extent of appellant’s claim consists largely of the testimony of appellant, an interested party. The evidence relative to the use of the strip of land in question and the exclusiveness thereof consists largely of the testimony of appellant and his wife.

Appellant also asserts that the finding of the jury to the effect that he had not matured a limitation title to such strip of land is against the great weight and preponderance of the evidence. Applying the test enunciated in In re King’s Estate, supra, and Tudor v. Tudor, supra, we have concluded that this assignment should be sustained.

The uncontroverted evidence shows that when appellant conveyed the tract of land described in the deed to Celli, together with all improvements thereon, including John’s Seafood Cafe and business, he pointed out what he understood to be the east and west boundaries of the tract as marked by the concrete posts. This was the tract appellant claimed he had bought from his uncle and which his uncle had surveyor Charlie Holt survey in 1921. After the sale to Celli in 1946, appellant still owned what is referred to as the Lapanovich Tract which he claim's is bounded on the east by the concrete posts marking the west line of the Celli Tract. At no time did Celli question that the boundary line between the respective tracts as marked by the concrete posts was not the true boundary line until in 1959’ 'when the State Highway Department made its survey and indicated that the boundary line was some 48 feet west of the line marked by such posts. Prior to such time Celli had always recognized the line as marked by the concrete posts as the west line of the tract he had bought from appellant.

Appellant testified in substance that at the time he conveyed the Celli Tract there was a fence along such line D'-C' consisting of the concrete posts with 2 X 4s on top of such posts, and with barbed wire and hog wire fastened to the posts and 2 X 4s, extending from the highway to the chicken enclosure and south of the chicken yard, a fence of railroad ties, which fences marked the west boundary line of the Celli Tract. At that time the posts which were approximately 6 feet in length extended 4 feet above the ground. In 1949 Celli hydraulically filled a strip of land to the east of the line of concrete posts about 50 feet in width and extending from the highway to the Bayou. At such time appellant filled from the westerly line of the concrete posts-to the fence of the Lockhart property adjoining the Lapanovich Tract on the west. Celli paid for the filling east of the line of posts and appellant paid for the filling west of the line of posts. After such filling the concrete posts extended only about 2 feet above the ground. Appellant testified that the cost to him of the dredging was about $3,500.00. Appellant also testified that he continuously filled or raised the property west of the concrete post line from time to time after the sale to Celli and down to the present time. He put mainland soil along the water front and grew grass on the strip of land south of the chicken enclosure, and following the dredging, he brought fill in by the wagon load whenever he could get it, placing most of such fill on the area from the chicken enclosure shown on the map as I-II-III-IV to the Bayou. The property south of the chicken enclosure was filled to a height of some 10 feet. The dredge had filled in about 3 feet, and appellant filled in 5 or more feet over the dredge fill on the strip south of the chicken enclosure.

Appellant testified also that he built a seawall or a bulkhead south of the chicken enclosure, extending from the concrete post line west to Lockhart’s fence; that the cost of the dredging and the filling was better than $20,000.00; that there was, and continued to be for more than ten years, a hole south of the chicken enclosure and west of the post line in which the Cellis burned trash with appellant’s permission, Mr. Celli having asked if he could burn trash there; that the fences along the concrete posts and the fence of railroad ties or posts south of the garage were torn down in 1949 at the time of the dredging and there was no fence ■either north or south of the chicken fence •or enclosure from 1949 to 1959; that he -maintained on the line marked by the concrete posts and railroad ties between the garage and the Bayou a “Keep Out” sign ■to keep people from going on his property west of the concrete post line, which sign was there when he sold to Celli and has remained to the present time; and that in 1938 or 1939, under a lease from him, a large sign some 20 X 40 feet was put up and maintained ever since close to the Highway and extending over on the land in controversy.

Appellant testified that the Lapanovich Tract extended to the concrete posts, and that the land he was claiming was from the line of the concrete posts to the Lockhart fence on the west. He claimed all of the land west of the concrete posts whether it was called the Lapanovich or the Celli Tract, and whether or not it was included in his deed to Celli. He further testified that from the southwest corner of the Celli garage, the back of which is in line with the concrete posts, he had a fence of railroad ties and barbed wire extending south. This fence was destroyed in 1949 but the sign saying “Private Property” had been there since 1921 and remained after the filling in 1949. In the area of the chicken yard (III-III-IV on the map) he claimed just the part lying west of the concrete post line. He had in that area a chicken yard and at times a hog pen, and a little garden. The chicken house and fences have been continuously on the strip in controversy for much longer than ten years. When the old chicken house burned down in 1948, appellant started within two weeks to build another one on the strip now in controversy without protest from Celli.

John B. Lozica, Jr., the son of appellant, 25 years of age, testified that his father made a seawall of brick, stone and rocks brought in by truck, and that the fill brought in extended over to the westerly line of the concrete posts; that they have always kept the property closed to the public and that his father is the only one who could permit people to come on the land; that from the garage to the chicken house is a fence in line with the concrete posts, made of sheets of tin which the Cellis kept up, and that the brick footings under the tin have been there as long as he remembers; and that the high fill, which is several feet higher than the Celli tract, is between the chicken enclosure and the seawall or breakwater and extends west from the line marked by the posts.

Mrs. Lozica testified that before the sale to the Celli brothers, her chicken pen was on the east of the westerly line of concrete posts, and they kept them there about a year after the sale; that when Celli told them he was getting some chickens they built a new chicken house on the west side of the concrete posts which backed up to such line; that her husband spent lots of money fixing the property and still does, and that he made a wharf on the water front to keep the sand in place and protect the property; that the public did not use the property west of the line of concrete posts and that since selling to the Cellis her husband had complete control and management of the land west thereof; that when the old chicken house burned they built a new one; that a fence runs from the chicken house to the garage, and that she had a little garden west of the line of posts and north of the chicken house; and that the fence from the chicken house to the southwest corner of the garage and the fence to the east of it have been there all of the time.

Oscar P. Celli testified in substance that he did not have the property surveyed at the time of his purchase; that appellant pointed out the east and west lines of the tract and said that the retaining wall on the east was the east boundary and that the line of concrete posts on the west was the west boundary; that the posts ran just part of the way and that he did not recall any fence but only the concrete posts; that he did not know the true location of the west boundary of his tract of land, but believed it_ was the line of posts pointed out to him by appellant Lozica; that the only structure on the strip of land in question in 1946 was the chicken house and fences; that in 1949 he and his brother placed hydraulic fill on the portion of the property just east of the concrete posts; that Lozica filled his property at the time the Cellis did; and that he imagined that Lozica paid the cost of filling the property west of the concrete posts; that the first dispute relating to the location of the west line was in 1959 which was the time the Highway Department made' its survey; that he had some ducks and chickens and they roamed over all the area in dispute, and that they used a little rectangular area north of the garage and east of the concrete posts for their ducks and chickens. He further testified that the back of the garage was on the common boundary line as he then understood it. The garage has its opening to the east; that the back of Mr. Lozica’s chicken yard marked the line part of the way and the back of the Celli garage marked the line part of the way as he thought the boundary was and as Lozica had pointed it out; that there were some old railroad ties on the line from the garage to the Bayou, and there was a ditch to the east of the concrete post line; and that appellant had let him burn trash in the hole south of the chicken enclosure and garage.

Appellees take the position that appellant may not acquire the strip of land in question by limitation, since appellant had no intention to claim any land beyond the true boundary line. In this connection ap-pellees assert, as indicated in Bruce v. Washington, 1891, 80 Tex. 368, 15 S.W. 1104, that the possession of a claimant is not adverse if he enters upon land under the mistaken belief that it is included in his deed and with no intention to claim or hold the same adversely to the true owner if it is not included in the deed. It is our view that in the instant case the evidence does not show an intention not to claim the land in controversy if not included in the Lapanovich Tract which had been acquired by appellant prior to the deed to the Cellis.

It is true that the evidence, with respect to appellant’s intention to claim the land to the line of concrete posts, consists largely of the testimony of appellant and his wife, both interested parties. Their testimony is corroborated, however, not only by their son, John B. Lozica, Jr., and by the use made of the property, but also by appellee, Oscar Celli, who testified that appellant had pointed out the dividing line between the Celli and Lapanovich Tracts, and had told him that he, Lozica, owned the land west of the line of concrete posts and that Celli owned the land east thereof.

Moreover, we are of the opinion that the testimony of appellant with respect to what he claimed is clear and positive and that there are no circumstances in evidence tending to discredit or impeach his testimony. Owen Development Co. v. Calvert, 1957, 157 Tex. 212, 302 S.W.2d 640. Although at one point in his testimony on cross-examination, appellant testified that he never claimed anything except the Lap-anovich Tract that is described in the deed from Sealy to Madeline Lapanovich subsequent to the time he sold to the Cellis, he had previously testified that the Lapanovich property was the property lying west of the line of concrete posts, and he repeatedly testified that he claimed all the property extending west from the line of concrete posts to the Lockhart fence on the west line of the Lapanovich Tract. He further testified on cross-examination as follows:

“MR. BEDFORD:
“So — I mean, was it ever your intention, at any time, to claim any of the land that you sold and deeded and conveyed to the Cellis?
“A. I claim it west side concrete posts — all.
“Q. Then you do — then it was your intent to claim the property that was west of the concrete posts — is that what you are trying to say— whether you deeded it to them or not — you intended to claim that — 1 is that right?
“A. Correct.”

In view of all of appellant’s testimony and the very clear statements as to what he was claiming, we do not think the single statement made by him that he was not claiming anything but the tract described in the Lapanovich deed, raises an issue as to the adverse nature of his claim, especially since he always believed the Lapanovich Tract extended to the line marked by the concrete posts. In any event, such statement did not preclude him from claiming the land to the line of concrete posts. Goslin v. Beazley, Tex.Civ.App., 339 S.W.2d 689, 695, writ ref., n. r. e., and authorities cited.

Appellees also contend that appellant’s use of the open and unenclosed areas of the strip of land in controversy, north and south of the chicken yard, was not exclusive. The only evidence relied upon by appellees to show that appellant’s possession was not exclusive was testimony to the effect that appellees’ chickens and ducks roamed over the land north and south of appellant’s chicken enclosure. It is our view that such use was permissive and did not destroy the exclusiveness of appellant’s possession. Appellant’s chickens as well as appellees’ chickens ranged over the tracts belonging to both parties without discrimination.

In determining whether the possession of such strip of land was exclusive, all of the evidence must be considered. The strip of land in controversy was definitely marked by the concrete posts, the chicken house, garage, and fences of the chicken enclosure, and the fill placed thereon which elevated the strip of land several feet above the Celli property south of the chicken enclosure. A large bill board north of the chicken enclosure had been erected more than ten years prior to the filing of suit and had been continuously maintained, appellant collecting rentals therefrom. The “Keep Out” sign south of the chicken enclosure had also been maintained for more than the statutory period of limitation. Appellant at all times asserted dominion over the entire tract.

We shall not undertake to set out further evidence with respect to the use of the strip of land in controversy and the exclusiveness of appellant’s possession. We think that the evidence hereinabove set out is such that the finding of the jury with respect to appellant’s possession and the exclusiveness thereof in finding against appellant on his plea of the ten year statute of limitation, is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In Re King’s Estate, supra.

Appellant next asserts that the evidence establishes as a matter of law that he had matured title under the ten year statute of limitation to the strip of land in controversy which has been enclosed as a chicken yard. Although we are inclined to think that the evidence establishes as a matter of law that appellant’s use and possession of the chicken enclosure was exclusive for the required statutory period, we shall not pass upon this assignment since we have considered such possession and use as one of the principal uses of the land in controversy in arriving at our holding with respect to the entire strip.

It is our view that appellant’s cause of action with respect to his limitation claim to the strip of land in controversy involves issues not necessarily pertinent to the holding of the court establishing the true boundary line between the Celli Tract and the tract retained by appellant, and that such cause of action may be tried independently and without regard to the true boundary line or a determination thereof, so that the judgment of the trial court with respect to the limitation title and adverse possession may be reversed and remanded without reversing the judgment establishing and fixing the true boundary line between the two tracts of land belonging to the respective parties. In Durham v. Scrivener, Tex.Com.App.1925, 270 S.W. 161, the court stated:

“We also think the issue as to what damages or recovery should be awarded for the wrongful conveyance of a portion of such land is severable from the issue as to what the recovery should be as to wrongful conveyance as to other portions to different parties.
“After a fair and impartial trial has been had in the trial court on the issue involving the cancellation of the deeds, it would indeed be unfortunate if the rules of procedure governing appellate courts were such that, without any apparent reason therefor, the trial court should again be required to determine this issue.”

We hold that the issues are severable, and that the judgment of the trial court should be reversed and a new trial ordered only as to appellant’s claim to the land by limitation under the ten year statute, and otherwise affirmed. Rule 434, Texas Rules of Civil Procedure; Tillman v. Mahaffey, Tex.Civ.App., 252 S.W.2d 255, ref., n. r. e.; Page v. Hancock, Tex.Civ.App., 200 S.W.2d 421, ref., n. r. e.; Miller v. L. Wolff Mfg. Co., Tex.Civ.App., 225 S.W. 212.

Affirmed in part; reversed and remanded in part.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Bennie RILEY, Executor of the Estate of Joe Johnson, Deceased, Appellant, v. Amy JOHNSON et al., Appellees.
    No. 4127.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.

      J. Leonard Gotsdiner, Houston, for appellant
    Fowler & Conn, J. C. Trotter, Houston, for appellees.
   WILSON, Justice.

The independent executor of the estate of testator appeals from a declaratory judgment determining rights under the following provisions of the will:

“I hereby state that all of the property that I have at this time is an undivided one-half in the community property acquired by myself and my wife, Amy Johnson, and that all of the property owned by both of us is community property, and it is my intention to dispose of the community one-half owned by me in such community property.”

Another clause, 3, gave “all the money I own at the time of my death, regardless of kind, character or description” to nine named brothers, nieces and nephews. The following clause, 4, granted to testator’s surviving wife a life estate in “all of the remainder of my property, including all real estate, owned by me at the time of my death, regardless of kind, character or description”, with remainder in fee to the same nine kindred. One of the latter was a nephew who predeceased testator. No children were born of testator’s marriage.

The trial court found, and the parties agree that all the property of testator was community property with the exception of one lot, which was in fact his separate property.

The trial court concluded the bequest to the deceased nephew lapsed; that as to that portion of his estate testator died intestate, and it vested in his surviving wife by descent; and that testator had elected to treat all of his estate as community property under his will and his widow was entitled thereby to one-half of his separate property and one-half of all community property. We are unable to adopt the contentions of the parties or the entire basis on which judgment was rendered.

The first question in determining testator’s intent is the legal effect of his declaration that all the property he had was “an undivided one-half in the community property” acquired by himself and his wife, when in truth property acquired before his marriage, of which he died seized, was his separate property.

A general rule applicable to that problem is summarized in 4 Page on Wills (1962), Sec. 30.18, p. 124:

“A declaration in a will that a testator had no separate property of his own, but that his entire estate consisted of his interest in the community property owned by himself and his wife, has not the effect of converting his separate property into community property, nor does it amount to an implied devise to his wife of one-half of his separate estate.”

The clause containing testator’s statement that all his property consists of a community interest and that it is his intention to dispose of it, first quoted above, contains in itself no language which may be construed as constituting a gift or devise. If all testator’s estate had actually been a community property interest, and none his separate property, that clause alone would not effect a disposition of it. The succeeding clause gives express legacies of money. All the remainder, of his property, including all real estate he owns “regardless of kind, character or description” is thereupon disposed of in a subsequent clause by an unambiguous gift to his wife “for and during her natural life, and no longer.”

Our research has disclosed only the following decisions which have considered similar problems: Moore v. Moore, Tex.Civ.App., 259 S.W. 322, 327; Hatch v. Ferguson, 9 Cir., 68 F. 43, 50, 33 L.R.A. 759, affirming 9 Cir., 57 F. 966; In Re Hartenbower’s Estate, 176 Cal. 400, 168 P. 560; In Re Rupley’s Est., 174 Cal.App.2d 597, 345 P.2d 11; Efird v. Efird, 234 N.C. 607, 68 S.E.2d 279, 281. Cf. Rowe v. Gilbert, Tex.Civ.App., 276 S.W.2d 583, writ ref. n. r. e.; and see 96 C.J.S. Wills 754, p. 152. , These authorities uniformly support the general rule stated in Hatch v. Ferguson that a specific devise of all the testator’s interest and estate “cannot be controlled or diverted by the expression of his belief that the estate so devised was the one-half interest in community property.” In Moore v. Moore the will declared the entire interest testator owned was community, and he devised all his property to his wife for life with remainder to a son who predeceased him. Chief Justice Gallagher emphasized that the declaration preceded the clause disposing of testator’s property, as here, and said, “[t]he error in the declaration as to the nature and extent of his interest” in property disposed of “should not, in our opinion, defeat the purpose, clearly expressed in the next paragraph, that his wife should have all his property for and during her natural life.”

In our opinion the wife took a life estate, under the terms of the will, in all testator’s property, except money, including the realty which was his separate property.

The nephew who predeceased testator was not a descendant under Sec. 68, Probate Code, V.A.T.S., but a collateral heir. The devise to him lapsed, therefore, and vested in testator’s surviving widow, there being no other general residuary clause or substitutionary provision. Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148, 152; Morton v. Hill, Tex.Civ.App., 355 S.W.2d 269, 271, writ ref., n. r. e.; and see Goodson v. Goldsmith, 131 Tex. 418, 115 S.W.2d 1100, 1102; Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, 215. “If the gift which fails is itself a part or all of the residue it cannot be said to pass into the residue, for it is there already.” 4 Page on Wills (1962) Sec. 33.56, p. 390.

The lapsed legacy to the deceased nephew of money under clause 3 passed into the residuary estate under Clause 4 of the will. The gift of remainder to the nephew there likewise having lapsed, title to it vested in testator’s widow by descent.

Numbered findings and determinations in the judgment, except No. 7, are undisturbed. The second and fourth unnumbered adjudicatory paragraphs of the judgment are vacated. Judgment is here rendered declaring (1) that Amy Johnson, surviving wife of testator, takes under the will the interest in testator’s estate which was devised to Trav Jackson, his deceased nephew: ⅜& of testator’s money, an undivided ⅜⅛ remainder interest in testator’s separate estate, and an undivided ⅜⅛ remainder interest in testator’s interest in community property, (of which an undivided 40% is set aside to the attorneys named in said fourth adjudicatory paragraph); and (2) that Amy Johnson takes a life estate in all other property of testator, except money. The remainder of the judgment is affirmed. Costs on appeal are taxed ⅛⅛ against ap-pellee, 3/ths against appellant.


author: DIXON, Chief Justice.

text:
    Frank Jones EVANS et ux., Appellants, v. PACIFIC NATIONAL FIRE INSURANCE COMPANY, Appellee.
    No. 16160.
    Court of Civil Appeals of Texas. Dallas.
    April 12, 1963.
    Rehearing Denied May 3, 1963.
    Thomas R. Fox, Dallas, for appellants.
    Fanning, Billings, Harper, Pierce & Gilley and Donald A. Gilley, Dallas, for appellee.
   DIXON, Chief Justice.

This is a suit brought by appellant Thomas R. Fox, attorney in fact, on an insurance policy covering loss or damage to a dwelling owned by Frank Jones Evans and wife, Martha Evans. The policy, issued by appellee Pacific National Fire Insurance Company, is a standard form fire insurance policy to which Physical Loss Form No. 148 has been attached.

After trial before the court without a jury judgment was rendered for appellant for $266.78. The court rejected several items of damage claimed by appellant, hence this appeal. We have concluded that the trial court’s judgment should be affirmed.

Appellant pled four items of physical damage to the dwelling: (1) Chipped double sink $73.17; (2) Chipped bathtub $25.50; (3) Formica drainboard $75.00; (4) Two Redwood gates $50.00.

In'addition to the above physical loss and damage items appellant claimed $300 damages for loss of rent, and $2,000 damages for loss of his equity in the premises when a mortgage was foreclosed. The foreclosure could have been avoided, according to appellant, if appellee had not refused to pay appellant’s claim.

Form 148, attached to the policy, provides, among other things, that the insurer will be liable only when the loss to the property exceeds $50 in any one occurrence. Appellant’s position, as stated in his first point on appeal, is that since the provision was not pled by appellee as an affirmative defense as provided by Rule 94, Texas Rules of Civil Procedure, it was error for the trial court to deduct $50 on each of the physical loss items.

We have found no case exactly in point, but the holding in Preferred Life Insurance Co. v. Stephenville Hospital et al., Tex.Civ.App., 256 S.W.2d 1006, 1010, seems to come fairly close. In that case, which involved an accident and health policy, the court stated that the insured persons had the burden of establishing their right to recover. They introduced in evidence the policy which by its terms limited their recovery to specific amounts for designated services. The court held that such limitation was “not an exception to the ‘general liability’ provided by ‘other provisions limiting such general liability’ but is inherent in the provisions of the policy which define the maximum liability in the first instance. The limitation was, therefore, a part of and inseparable from the ‘general liability’ as. referred to in Rule 94 * *

We think the holding in the Preferred case, is applicable here. The deductible provision is as much a basic part of the policy as the provision which sets the maximum amount of money recoverable under the policy. The effect of one provision is that no amount in excess of the named maximum figure can be recovered. The effect of the other provision is that no amount of loss less than $50 can be recovered.

Appellant himself undertook to allege and prove that the damage was due to certain-risks and causes which come within named exceptions to the deductible clause. Appel-lee filed a general denial. The court held appellant failed to prove his losses came within these exceptions, hence the general deductible provision was applicable. We find no evidence in the record to show whether all the four named items of loss constituted one occurrence or were each separate occurrences. Appellant’s first point is overruled.

The policy contains a provision to the-effect that appellee will be liable for loss of rental value caused by damage insured against. In his second point appellant says-that he should have been awarded a recovery for rental losses.

The owners of the property upon removing to another State, had leased the property to a tenant, who had occupied it for two years, paying $100 per month rent. Following expiration of the lease the property had been vacant for some time. One witness testified that he had inspected the-property and found it in good condition. Appellant at the time was seeking to rent it for $110 per month, $10 more than it had been bringing under the lease.

The only physical loss items for which appellant sued were the four items heretofore listed. Yet he testified to many other items of physical damage, some of them of a serious nature, for which he made no claim. For example appellant testified that “the place was a shambles”; the paint was scratched; the wallboard was scuffed; all the sliding doors were down; the light fixtures were broken; the Venetian blinds were broken; the hardware was broken; the linoleum was cut and torn. Appellant himself testified, “The majority of the damages I am not asking for, asking payment for.” The evidence is certainly sufficient to support the court’s finding that the loss ■of rentals was not due to the damages for which suit was filed. Appellant’s second point is overruled.

In his fifth point appellant complains because the court found that his loss of his equity in the property due to the foreclosure of a mortgage was not caused by appellee’s failure to pay appellant’s claim.

Appellant’s .fifth point must be overruled for two reasons:

1. Judgment of foreclosure was entered on or about October 1960 on a note and mortgage which was about two years in arrears. The premises had been rented during this two year period for $100 per month. The Sheriff’s sale took place in December 1960. Appellant’s proof of loss was forwarded to appellee December 1, 1960. Under the terms of the policy ap-pellee’s obligation, if the claim were allowed, appellee was to make payment within 60 days from the date of receipt of proof of loss. The foreclosure and Sheriff’s sale had taken place before there was any obligation on appellee to pay appellant’s claim even if it had been allowed.

2. The claim for loss of equity in the property is for special damages. There was no pleading or evidence that such damages were in the contemplation of the parties at the time the contract was entered into, or that appellee had any knowledge or notice thereof. Under the circumstances appellant is not entitled to recover this item of damages. Cisco & N. E. R. Co. v. Ricks, Tex.Civ.App., 33 S.W.2d 878, 880; 17 Tex.Jur.2d 135.

Appellant’s eighth point alleges that the court erred as a matter of law in holding that appellant is not entitled to attorney’s fees and 12% penalty under Art. 3.62 of our Insurance Code V.A.T.S. The basis of this claim is that appellee is a company authorized to write multiple lines of insurance, including accident insurance. Therefore, according to appellant, it comes within the provisions of the above named Statute, though the policy here under consideration is not an accident policy.

We do not agree with appellant. It is true the Statute provides for attorney’s fee and penalties when losses occur and the “ * * * accident insurance company * * liable therefor shall fail to pay the same within thirty days after demand * * (emphasis ours). But in interpreting old Article 4746 which uses the same language as the present'Statute, our courts have held it is “the distinctive kind of losses pointed out and enumerated by the statute that is required to be paid promptly, and not every kind of loss against which the company may insure.” Aetna Accident & Liability Co. v. White, Tex.Civ.App., 177 S.W. 162, 168. See also Ocean Accident & Guaranty Corporation, Limited, of London, England v. Northern Texas Traction Co., Tex.Civ.App., 224 S.W. 212; Maryland Casualty Co. v. Hopper, Tex.Civ.App., 237 S.W.2d 411, 416; Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910. The policy here is not within any of the categories named in the Statute. Appellant’s point is overruled.

In other points appellant complains because (3) the court found that appellee was not negligent in refusing to make payment of appellant’s claim, and (4) appellee did not wilfully disregard appellant’s rights under the policy; (6) should have made certain findings and conclusions requested by appellant; and (7) erred in basing its findings and conclusions on no evidence, or improper evidence. We have considered all the above points but find no merit in any of them. They are overruled.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    TEXAS SAND COMPANY et al., Appellants, v. Donald L. SHIELD et al., Appellees.
    No. 3772.
    Court of Civil Appeals of Texas. Eastland.
    April 5, 1963.
    Rehearing Denied April 26, 1963.

      Cofer & Cofer, Austin, for appellants.
    Snodgrass, Smith, Rose & Finley, San Angelo, for appellees.
   COLLINGS, Justice.

This suit was brought by Donald L. Shield, Leona Shield Montgomery, Charles L. South, James W. Dibrell, Josephine Dib-rell Jobe, Elizabeth Dibrell, Joseph B. Dibrell, Jr., John F. Petty and James Robert Petty against Texas Sand Company, a corporation, Shield Oil and Gas Company, a corporation, Bridwell Oil Company, Elgean Shield and wife, Flora Shield, Richard Shield and wife, Sylvia Shield, Elgean C. Shield, F. Craig Morton, Otto Reynolds, H. & R. Drilling Company and John Hancock Mutual Life Insurance Company. Plaintiffs sought to set aside two conveyances of a tract of land containing approximately 2,031 acres on the basis of fraud, and to foreclose a judgment lien against the land. The first of the alleged fraudulent conveyances was by E-lgean Shield and wife Flora Shield and Shield Oil and Gas Company to Richard Shield executed March 1st, 1954. The second alleged fraudulent conveyance was made by Richard Shield and wife Sylvia Shield to Texas Sand Company, executed March 17, 1954. Plaintiffs claimed to be creditors of Elgean Shield and Shield Oil & Gas Company as evidenced by a judgment of the District Court of Jeff Davis County rendered on July 26, 1954, and abstracted in the Coleman County Judgment Records on September 7, 1954. It was alleged that execution was issued on June 18, 1957, and returned “nulla bona” by the Coleman County Sheriff on June 20, 1959.

Defendants Morton, Reynolds, H. & R. Drilling Company and John Hancock Mutual Life Insurance Company filed disclaimers. The remaining defendants by pleas in abatement and in bar urged their plea of limitation based upon Article SS29, Vernon’s Ann.Tex.Civ.St. and Article 5507, V.A.T.C.S. The case was tried before a jury which found that the March 1, 1954 conveyance was given with the intent (1) to hinder, (3) to delay, (5) and to defraud appellees in the collection of their debt. The jury found in answer to special issues 7 and 8 that the parties to the deeds dated March 1, 1954, and March 17, 1954, did not intend that such deeds should be effective as conveyances of the properties therein described, and in answer to special issue number 13 found that such deeds were not based upon a substantial and valuable, consideration. The jury found in answer to special issue number 9 that at the time of the execution of the deed dated March 1, 1954, from Flora Shield and Elgean Shield the title of record in the name of Elgean Shield to the land in controversy was not held for the use and benefit of his wife Flora Shield. Special issue number 10 inquired whether Texas Sand Company, together with its successors in title, Elgean C. Shield, Richard Shield, Alan Shield and Flora Shield held peaceable and adverse possession of the 2,031 acre tract of land for three years prior to February 28th, 1959, and such issue was answered in the negative. In answer to special issue number 12 it was found that plaintiffs, after abstracting their judgment, used diligence in obtaining and having issued execution upon the judgment debt involved.

Judgment was rendered on the verdict setting aside both conveyances holding that plaintiffs had a valid judgment lien against the land in question subject to the rights of Bridwell Oil Company and John Hancock Mutual Life Insurance Company, and foreclosing their judgment lien. The defendants filed their motion for a new trial which was overruled and they have appealed.

The evidence shows that prior to 1952,. appellees held a claim for money against Elgean Shield and Shield Oil and Gas Company which was reduced to judgment in the District Court of Jeff Davis County on. July 26, 1954, and upon appeal it was on October 3, 1956 determined favorably to appellees. This judgment was abstracted’ in the Coleman County Judgment Records on September 7, 1954, and was duly indexed. The execution entered on the judgment on June 18, 1957, was returned “nulla bona” by the Sheriff of Coleman. County.

The evidence further shows that on March 1, 1954, the date upon which notice was given by letter that the case in Fort Davis had been set for trial, Elgean Shield and his wife and Shield Oil and Gas Company conveyed the land in question together with all their other properties, except the homestead, to their son, Richard Shield. The consideration recited in this deed was the “love and affection which we bear toward our son” and the further consideration of the assumption of specified indebtedness. The Texas Sand Company was organized by the Shield family and chartered on February 1, 1954. No< stock was issued and the Charter was forfeited by the Secretary of State on September 1, 1956, for non-payment of franchise taxes. On March 17, 1954, Richard Shield and his wife conveyed all the properties covered by the deed dated March 1, 1954, to Texas Sand Company in consideration of the assumption of the same indebtedness. This suit was brought on February 28, 1959, in Coleman County to foreclose appellees’ judgment lien on the 2,031 acre tract and the parties to the deeds dated March 1, 1954, and March 17, 1954, were joined as defendants.

In appellants’ 1st and 2nd points it is contended that the court erred in overruling their plea of limitation and in holding that the 4 year statute, Article 5529, V.A.T.C.S. was not applicable to this suit to set aside a fraudulent conveyance. Ar-tide 5529, V.A.T.C.S., provides as follows: ““Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

We cannot agree with appellants’ contention that the court erred in holding that Article 5529, was not applicable and in overruling appellants’ plea of limitation. It is held that a suit to enforce a subsisting judgment lien on land against a grantee in a void fraudulent conveyance is not barred until the grantee thereunder or his assigns acquire full title to the land under some statute of limitations which would bar an .action to recover realty. 53 C.J.S. Limitations of Actions § 36, page 988; Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855.

The jury found and the evidence shows that the conveyance of March 1, 1954, was fraudulent. It is held that such a conveyance although valid as between the parties is void as to creditors. It was void under the provisions of Articles 3996 and 3997, V.A.T.C.S. Appellees held a claim against Elgean Shield and Shield Oil and Gas Company at the time of such conveyance, which was thereafter reduced to judgment in the District Court of Jeff Davis County. As to such creditors the legal title and equitable title to the property remained in the grantor unaffected by the fraudulent deed. Art. 5529 is therefore not applicable. It is held that a judgment creditor cannot be deprived of his legal right to enforce collection of his judgment against lands of his debtor by a fraudulent conveyance made to hinder, delay and defraud creditors, even though prior to the entry of the judgment and the filing of the abstract of judgment. See Eckert v. Wendel, supra, 40 S.W.2d at page 799. The land, as to such a judgment creditor, is held to be still the property of his debtor, and when the creditor obtains a judgment lien he is entitled to have the land sold to satisfy such judgment lien unless the vendee of the debtor has acquired title by the 3, 5 or 10 year statutes of limitation applicable to real estate.

Appellants claimed the land by adverse possession under Articles 5507 and 5508, V.A.T.C.S. The evidence shows without dispute that appellees instituted this suit on February 28, 1959, to set aside the two conveyances in question, which were executed on March 1, 1954 and on March 17, 1954, both of which were filed and recorded in the Coleman County Deed Records on April 5, 1954. We cannot, however, agree with appellants’ contention that there was no evidence, or insufficient evidence, to support the finding of the jury that appellants had not shown peaceable and adverse possession of the land for three years prior to February 28, 1959, or that such finding was against the great weight and preponderance of the evidence, and that the court therefore erred in entering judgment for appellees upon the verdict.

Appellants contend that at the time this suit was instituted by appellees, Texas Sand Company held record title from the sovereignty of the soil to the tract of land. The evidence shows that at about the time the law suit in Fort Davis County was ripe for trial Elgean Shield and wife Flora Shield and Shield Oil and Gas Company executed a deed to Richard Shield covering the land. Soon thereafter Richard Shield and wife executed a deed covering the same properties to Texas Sand Company. No further conveyances of the land in question were made. Texas Sand Company was a Texas corporation incorporated by the Shield family on February 2, 1954. The right of Texas Sand Company to do business in Texas was forfeited on July 5, 1955 because of failure to pay the franchise taxes. The Charter of Texas Sand Company was, forfeited on September 1, 1956, because of the failure to pay franchise taxes. Mrs. Flora Shield claimed to own Texas Sand Company. Proof of final payment of the capital stock of Texas Sand Company was filed with the Texas Secretary of State’s office on July 16, 1956. The proof of final payment showed Richard Shield to own six shares, Elgean C. Shield to own six shares and Floria Shield to own thirteen shares. No stock was paid for in cash and no stock was ever issued. Mrs. Flora Shield further claimed to have owned and held the land in question as her separate property since 1938; that from 1938 up until Texas Sand Company took possession in 1954, she personally had possession of and used the land; that she ran cattle on it and leased it; that her use of the land was continual and that it was enclosed with a fence; that after Texas Sand Company ceased to pay its franchise tax in 1956 and up until the date of the trial she continued to use and manage the land as she had before.

The evidence showed that in 1937, the 2,031 acres and an additional 500 acres were owned by inheritance in undivided interests by Elgean Shield, I. O. Shield, Leon Shield, Camille Wallace and Shield Brown. Such land was under a deed of trust held by Kansas. City Life and the interest of Leon Shield was subject to a second deed of trust in favor of Coleman National Bank. The notes to both mortgagors were in default in 1937 and Elgean Shield and I. O. Shield conveyed their interest to Flora Shield. During 1938, the First Coleman National Bank acquired the deed of trust of Kansas City Life and on foreclosure took a trustee’s deed which was ratified by all the parties including Elgean and Flora Shield. First Coleman National Bank thereupon conveyed the property to Elgean Shield and he conveyed an undivided interest of 1%oths to Camille Wallace. Upon the settlement of a partition suit in 1950, Camille Wallace conveyed to Elgean Shield all her interest in the 2,031 acres and he and Flora Shield conveyed to Camille Wallace all their interest in the additional 500 acres. In 1947, Elgean and Flora Shield executed a deed of trust to Ortin Associates covering the 2,031 acres. In 1949, this deed of trust was foreclosed and the land was conveyed by trustee’s deed to Shield Oil and Gas Company. In 1950 Shield Oil and Gas Company conveyed the land to Elgean Shield which concerning the consideration recited, “out of his sole and separate estate.” There is no showing of any other conveyance of the land until March 1, 1954, when Elgean Shield and wife executed the deed to Richard Shield. Then on March 17, 1954, Richard Shield and wife executed the final deed to Texas Sand Company.

Article 5507, supra, applies to persons who have been in peaceable and adverse possession of land under title or color of title. It is held that this Article does not protect one who does not deraign title from the State. Haring v. Shelton, 103 Tex. 10, 122 S.W. 13. Assuming without deciding that the evidence shows Texas Sand Company to have a record title to the land in question, appellants have still failed to demonstrate a chain of title from the sovereignty of the soil as required in such cases. It is not contended that Texas Sand Company had peaceable and adverse possession for the three year statutory period. It is claimed, however, that Mrs. Floria Shield was the owner of Texas Sand Company and that when the charter of Texas Sand Company was forfeited in September of 1956, that the title or color of title shown in such corporation vested in her and thereby extended the possession for the full three years. This contention is not well taken. Although Mrs. Shield claims to succeed Texas Sand Company in ownership of the land it is undisputed that there was no deed executed conveying title to her. Although she claims ownership of all the stock of the company it is undisputed that no stock certificates or other instruments of ownership in the corporation were ever issued. Mr. Elgean C. Shield testified that he didn’t know of any stock being issued to show who owned the corporation, and that although he was the last president of the company, he did not know who owned it. Mrs. Flora Shield also testified that no stock certificates were ever issued by Texas Sand Company and that she did not have any written agreement or anything in writing showing that she was the owner of stock in said company. Only Mrs. Floria Shield claimed to have possession of the land from the time, of the demise of the Texas Sand Company until the time of the bringing of this suit but she is unable to meet the requirements of the statute because the evidence fails to show that her claim was under title or color of title. The court did not err in rendering judgment based upon the jury’s negative answer to the inquiry in special issue number 10 concerning peaceable and adverse possession of the land by Texas Sand Company and its successors.

Appellants’ Sth point complains of the action of the court in holding that ap-pellees’ judgment lien was valid. Appellants contend that the abstract and judgment were not properly recorded and indexed under the statutes of this state, and were therefore not effective to establish a lien. Concerning the duties of the clerk in indexing abstracts of judgment, Article 5448, V.A.T.C.S., provides:

“He shall at the same time enter it (the judgment) upon the alphabetical index to such judgment record, showing the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which the abstract is recorded.”

In essence appellants’ complaint is that each of the defendants are not listed in the direct index under the letter under which each plaintiff is indexed and that each of the plaintiffs are not listed in the indirect index under the letter where the defendants are listed. In support of their contention appellants rely upon J. M. Radford Grocery Company v. Speck, Tex.Civ.App., 152 S.W.2d 787, (writ refused). That case does not support appellants’ contention. It simply holds that the provision of the statute relating to entering abstract upon alphabetical index to the judgment record showing the name of each plaintiff and defendant in the judgment and the number of page of book upon which the abstract is recorded is mandatory and must be followed to establish a judgment lien. In that case the evidence did not show that the abstract of judgment was alphabetically indexed in the judgment records. The record showed only that the abstract was indexed but does not affirmatively show that the names of all the parties to the judgment appear alphabetically in the index direct and indirect. In the judgment here under consideration there were twelve plaintiffs and two defendants and the judgment was indexed in the index to the abstract of judgment records of Coleman County alphabetically as to each of such plaintiffs and defendants. As an illustration, in the direct index the judgment was indexed as to the plaintiff Donald L. Shield under the letter “S” as “Donald L. Shield et al, plaintiff, Elgean Shield et al, defendant.” In the indirect index the judgment was indexed as to the defendant Elgean Shield under the letter “S” as Elgean Shield, et al, defendant, Donald L. Shield, et al, plaintiff. In similar manner the judgment was properly indexed alphabetically as to each of such plaintiffs and defendants, so that any person searching the alphabetical index under the name of any party plaintiff or defendant would be able to find the judgment and ascertain with promptness and certainty whether or not a lien existed. This is all that is required by the statute as indicated in Womack v. Paris Grocer Co., Tex.Civ.App., 166 S.W.2d 366, writ refused 140 Tex. 423, 168 S.W.2d 645. In that case the court stated as follows:

“In construing said Article 5448, our courts have uniformly held that the object of the statute is not to encumber the registry with full information of the abstract lien, since that may be obtained from the judgment lien itself after it has been located by consulting the index, and that the index is designed merely to indicate the source from which the full information may be obtained.”

It is contended in appellants’ 7th point that there is no evidence to support the finding of the jury in answer to special issues numbers 1, 3, and 5 to the effect that the conveyance dated March 1, 1954, was given with the intention to hinder, delay and defraud appellees in the collection of their debt, and contend in the alternative that such answers are against the overwhelming weight and preponderance of the evidence, and that the court therefore erred in rendering judgment thereon. We cannot agree with this contention. The conveyance of the 2,031 acre tract of land from Elgean Shield et al. to Richard Shield was made just prior to the trial of the case in Ft. Davis in which appellees were seeking a money judgment against Elgean Shield. This conveyance purported to convey not only the land in question but all other real estate and mineral interests owned by El-gean Shield except his homestead. The grantee, Richard Shield, was at the time a college student. The recited consideration was “the sum of Ten Dollars ($10.00) and other good and valuable considerations to us — paid by Richard Shield — and the love and affection which we bear toward our son” and the further consideration of the assumption of a stated indebtedness in the amount of approximately $92,000.00. Such indebtedness purported to include $38,000.00 which the deed recited was owing to Flora J. Shield as evidenced by a promissory note executed by Elgean Shield on October 1, 1953. The $38,000.00 indebtedness was supposed to represent amounts which Mrs. Flora Shield had advanced from separate funds, but no such written note was shown. The evidence also supports the conclusion that all of the income of Elgean Shield and wife, Flora Shield, had been comingled over the years without regard to source or use. It was not demonstrated what amounts, if any, were Mrs. Shield’s separate property. The lands in question were then conveyed by Richard Shield to Texas Sand Company which had no assets prior to such conveyance and which assumed the obligations which Richard Shield had assumed. The evidence indicated that the 2,031 acre tract was worth at least $52.-00 per acre in 1954 and that the royalties and minerals covered by the deed were valued at approximately $55,000.00. It is also to be noted that the jury found in answer to special issues numbers 13 and 14 that the deeds of March 1, 1954, and March 17, 1954, were not based upon a substantial and valuable consideration and that the property described in such deeds had more value than was reasonably sufficient to pay all just debts, the payment of which was assumed in said deeds. The evidence in our opinion supports the finding of the jury that such conveyances were given with the intent to hinder, delay and to defraud ap-pellees in the collection of their debt.

The evidence in our opinion also supports the findings that the parties to the deeds of March 1, 1954, and March 17, 1954, did not intend such instruments to be effective as conveyances of the property described therein, and such findings are not against the great weight and preponderance of the evidence. Appellants themselves claim that Richard Shield was only a conduit in order to place the property in Texas Sand Company. No stock was ever issued in Texas Sand Company. All the monies of the corporation were used by the Shield family and mixed with other family funds without regard to source of income or use. The only corporation records in existence were minutes of the first meeting of in-corporators and minutes of a meeting to authorize the execution of an oil and gas lease. In less than eighteen months after the corporation was organized, its right to do business in Texas was forfeited for failure to pay franchise taxes, and in less than two years its charter was forfeited for the same reason.

Special issue number 9 inquired whether at the time of the execution of the deed from Elgean Shield and Flora Shield and Shield Oil & Gas Company dated March 1, 1954, the record title in the name of Elgean Shield to the 2,031 acre tract was held for the use and benefit of his wife Flora Shield. The jury answered this question in the negative. Appellants urge in their tenth point that the court erred in holding that appellees had a valid judgment lien on the land because, according to their contention, the evidence shows conclusively that such land was the separate property of Mrs. Shield and that the title which stood in the name of Elgean Shield prior to March 1, 1954, was mere legal title which he held under a resulting trust as the separate property of Mrs. Shield. Appellants urge that the undisputed evidence shows that as of November 1, 1937, Flora Shield owned the entire 2,031 acre tract by virtue of conveyance from her husband and other owners of undivided interest in the land at that time.

The evidence shows that the status of the property in 1937 was that by inheritance Elgean Shield owned a %sths interest, I. O. Shield owned a %sths interest, Camille Wallace owned a %sths interest, Leon Shield owned a %sths interest and Shield Brown owned a ⅝5th interest. These owners had executed certain mortgages and deeds of trust on the land and the notes secured thereby were in default in 1937. The evidence shows that Mrs. Flora Shield knew of these mortgages and knew that the notes were delinquent and it was under these circumstances that the deeds were executed which Mrs. Shield relies upon as a basis for her claim that the land is her separate property. Thereafter the above described mortgages and deeds of trust were foreclosed and a .trustee’s deed was executed to The First Coleman National Bank in 1938. A ratification deed was thereupon executed and delivered to The First Coleman National Bank by all of the parties, including Mrs. Flora Shield, and this ratification contained a warranty of title. In 1938 the land was conveyed by The First Coleman National Bank to Elgean Shield. In 1947 Elgean Shield and Flora Shield executed a deed of trust on their interest in the 2,031 acre tract to Ortin Associates securing the payment of certain notes. In 1949 this deed of trust was foreclosed and the property was conveyed by trustee’s deed to Shield Oil & Gas Company. In 1950 Shield Oil & Gas Company conveyed the tract to Elgean Shield by a deed reciting as follows: “unto the said Elgean Shield out of his sole and separate estate.” Appellants contend that the deed from Elgean Shield to his wife in 1937 was a warranty deed, and that the conveyance to him from The First Coleman National Bank in 1938. was an after-acquired title. Appellants urge that there was no change in title, except as to indebtedness, in which Flora Shield was a party until the execution of the deed by Flora Shield and Elgean Shield to their son Richard Shield dated March 1, 1954.

We cannot agree with appellants’ contention in this respect. In the first place the conveyances to Flora Shield in 1937 conveyed the “right, title and interest as it appears” in the property and the evidence shows that the right, title and interest of each of the grantors was subject to mortgages and deeds of trust, the existence of which was well known by Mrs. Shield. These mortgages were foreclosed and thereby Mrs. Shield’s separate interest in the land was also foreclosed and lost. Mrs. Shield joined as a party in a ratification, of the trustee’s deed to the bank, which contained a warranty of title. This of itself would effectively dispose of any claim of after-acquired title which might otherwise have accrued to Mrs. Shield. In addition to all this the transactions, as above set out, in 1947, 1949 and 1950 also effectively defeated any title which she might have had in the land. Beyond any question the evidence is not undisputed that the land was the separate property of Mrs. Shield at the time of the deed of March 1, 1954. Appellants’ tenth point is overruled.

As heretofore noted appellees obtained the Fort Davis judgment on July 26, 1954. An appeal of the case was disposed of in favor of appellees on October 3, 1956; There was no supersedeas bond and execution was entered on the judgment on June 18, 1957. Appellants contend in, their 6th point that the record shows that appellees failed to use 'diligence in obtaining and having issued execution upon their judgment debt and thereby lost their lien. They urge that the finding of the jury to the effect that appellees did use diligence in' obtaining and having issued execution upon the judgment is not supported by any evidence and that in any event the evidence is not sufficient to support such finding. They urge that the court therefore erred in rendering judgment for appellees. We cannot agree with appellants’ contention. Article 5449, which provides for the fixing of a lien by recording and indexing a judgment, does not provide any time limit for the issuance of execution. Under such Article the recording and indexing of a judgment operates as a lien upon all the real estate of the defendant situated in the county where such record and index are made and it is provided that such lien shall continue for ten years from the date of such record and index unless the judgment becomes dormant. There is no showing that the judgment became dormant.

We also overrule appellants’ point urging that it was reversible error for the court to overrule their motion for a mistrial because of inflammatory and prejudicial reference to Billie Sol Estes by counsel for appellees during argument to the jury. The argument complained of by appellants is as follows:

“MR. SMITH: Now, let’s see what right we have to expect from some of the other parties in the case. First, we can expect this: We can expect the testimony of the defendants to come from professional litigants. Mr. Cofer says that you can look through all these and you don’t see Elgean and Flora Shield bringing suits. Mr. Cofer, I say to you that today I don’t see your client Billie Sol Estes bringing a suit against anybody either.”

Counsel for appellants immediately objected to the above argument and made a motion for mistrial. The court sustained the objection to the argument and instructed the jury to disregard and not consider it, but' overruled appellants’ motion for a mistrial. The argument was improper but the court instructed the jury not to consider it. Ap-pellees also contend that even though the argument was improper it was invited by improper arguments of appellants’ counsel; that the court instructed the jury to disregard it and it has not been demonstrated that the argument probably resulted in an improper verdict.

Counsel for appellants had argued to the jury, in effect, that the interest of appel-lees’ lawyers in the case was responsible for the bringing of the suit and that otherwise there would have been no suit. They stated, that the fees were “pretty good pay' for lawyers.” They also stated in effect that although Elgean Shield had paid thousands of dollars for some members of the family that he had never brought any suit against them. In this connection counsel for appellant made the following argument to the jury:

“You can go through that pile of abstracts and you will find not a single suit where Elgean Shield sued them; and yet he has been battered in and out of court, regardless of his health, by these lawyers to collect the fifty percent interest they have in this judgment and in the other property of the Shield estate.”

Under the circumstances in evidence we are of the opinion that the argument by counsel for appellees, although improper, is not such that the action of the court in refusing to declare a mistrial would constitute reversible error. It was invited by improper argument by counsel for appellants and the court properly instructed the jury not to consider it. The jury must be presumed to have obeyed the court’s instruction. Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298. It does not clearly appear that the argument complained of probably caused the jury to return a different verdict than it would have returned if the improper argument had not been made.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    ALCOHOLIC BEVERAGE CONTROL BOARD of the Commonwealth of Kentucky et al., Appellants, v. V. W. WOOSLEY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 25, 1963.
    Rehearing Denied May 17, 1963.
    Frank M. Dailey, Frankfort, for appellants.
    D. Paul Alagia, Jr., Brown & Alagia, Louisville, Milburn C. Keith, Hopkinsville,, for appellee.
   CLAY, Commissioner.

Appellee applied to the Alcoholic Beverage Control Board for retail beer and package liquor licenses covering premises in Christian County just outside of Hopkins-ville. He complied with the statutes and the regulations of the Board which would qualify him for such licenses.

The Malt Beverage and Distilled Spirits Administrators declined to approve his application after a protest was filed by interested citizens. (See KRS 243.380). Ap-pellee thereupon appealed to the Board under KRS 243.470. Two hearings were held at which evidence was introduced. The Board rejected the application under the authority of KRS 243.450(2), which provides that a license that might otherwise be issued may be refused by a state administrator “for my reason which he, in the exercise of his sound discretion, may deem sufficient”. (Our emphasis.)

The basis of the Board’s rejection of the application was a finding, among other things, that the premises to be licensed were within a short distance of two churches (although not within 200 feet of either) ; were near a county high school, a school bus exchange stop, an ice cream bar frequented by teen-agers, a proposed city park and recreational area; and were in the vicinity of two other liquor outlets which adequately served the immediate area.

On appeal to the circuit court under KRS '243.560, the Board’s order was set aside on the ground it had exceeded its authority because the facts found by it did not afford a basis for rejecting the application. (See KRS 243.570) This ruling denied the right of the state administrator (or Board) to reject an application except upon some specific ground of disqualification prescribed by statute or an authorized regulation promulgated thereunder.

Although this decision clearly annulled section (2) of KRS 243.450, the applicant •did not contend in the circuit court, nor •does he contend here, that the statute is unconstitutional. (The problem of the unconstitutional delegation of powers to an administrative agency by the legislature when it fails to prescribe definite “standards” has recently been considered at length in Butler v. United Cerebral Palsy of Northern Kentucky, Inc., Ky., 352 S.W.2d 203.) The only issue presented on this appeal is whether the facts found by the Board constitute a legally sufficient basis for the exercise of discretion in denying the licenses.

The manufacture and sale of alcoholic beverages is a commercial activity which by nature requires extensive administrative supervision. The “liquor business” has long been recognized as being in a class by itself, subject to strict regulation and broader discretionary administrative control than other lawful occupations. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 S.W.2d 735 (and cases cited therein).

In the protection of the public interest the legislature has delegated to the Alcoholic Beverage Control Board special powers to regulate this industry in the light of variable local factors. (See KRS 241.-060) The authority of the Board to fix quotas under KRS 241.060(2) in its sound discretion, even though no conditions or considerations to be taken into account in performing this task have been prescribed, has been upheld in the Klein case, just above cited. Similarly the legislature has, under KRS 243.450(2), expressed a clear intent to leave to the reasonable judgment of the state administrator (who we must assume is an expert in the field of alcoholic beverage control) not only the determination of the propriety of granting a particular license but the determination of what material factors are important in reaching this decision. See Moberly v. King, Ky., 355 S.W.2d 309.

With respect to retail distribution outlets, the legislature has specifically prescribed certain conditions of eligibility to obtain a license. If any such disqualifications exist, the state administrator has no authority to issue a license. On the other hand, the legislature has, by the enactment of KRS 243.450(2), taken cognizance of a twilight zone within which the administrative agency must determine if any particular license should be granted when substantial reasons exist why its issuance would not be in the public interest. While section (2) of KRS 243.450 is extremely broad, it requires the exercise of a sound discretion and neither the administrator nor the Board may arbitrarily reject an application. Alcoholic Beverage Control Board v. Pebbleford Distillers, 302 Ky. 96, 193 S.W.2d 1019.

The absolute necessity for the exercise of discretion may be illustrated by the following example: Suppose a quota of 10 retail package liquor licenses is fixed for a given county, and 20 persons apply for such a license. All are fully qualified and meet all statutory and regulatory requirements. It is impossible to issue 20 licenses. The administrator must therefore decide between applicants, and in doing so his exercise of discretion must be based upon factors other than those set forth in the statutes.

The fact that a quota has not been filled does not restrict the discretionary power granted the administrator by the legislature. Reasonable and proper distribution of retail outlets within a given area is a material consideration in protecting the public interest. See KRS 243.230(3), and Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 S.W.2d 735. The findings in the case before us were principally based upon substantial obj ections to the location of the applicant’s premises. We cannot say the administrator (or the Board) acted arbitrarily when the application was rejected after consideration of the aggregate objectionable features found to exist.

The applicant contends the facts found by the Board were either not material or not supported by substantial evidence. With respect to materiality, he relies heavily on Alcoholic Beverage Control Board v. Hall, 297 Ky. 432, 180 S.W.2d 293. That case is not authoritative on this point because an entirely different and dissimilar statute was involved. With respect to substantial evidence to support the findings, the circuit court specifically declined to pass upon this question, but our review of the evidence convinces us that the principal findings were amply supported.

We realize that without statutory standards the exercise of administrative discretion may be abused. On the other hand, the legislature has not seen fit, nor is it required, to recognize a vested right in everyone to operate a liquor store. Looking at practicalities, neither the legislature nor the courts can effectively administer the details of the alcoholic beverage business. While the system is far from a perfect one, the licensing of liquor stores must be left largely to an expert administrator or an administrative agency. The courts will not countenance, and will give relief from, arbitrary action by such administrator. We do not find such on the record before us, and the administrator (or the Board) did not act in excess of his (or its) power.

The judgment is reversed.


author: CULLEN, Commissioner.

text:
    KINGWOOD OIL COMPANY, a Corporation, Appellant, v. HENDERSON COUNTY BOARD OF SUPERVISORS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 22, 1963.
    Rehearing Denied May 17, 1963.

      Sandidge, Holbrook, Craig & Hager, John S. Hager, Owensboro, for appellant.
    Carl D. Melton, Charles B. West, Henderson, William S. Riley, Paul D. Ross, Dept, of Revenue, Frankfort, for appellee.
   CULLEN, Commissioner.

The Secretary of Interior of the United States executed a mineral lease to the Kingwood Oil Company covering oil and gas in a 700-acre tract of land within the boundaries of Camp Breckinridge Military Reservation. The tax commissioner of Henderson County, Kentucky, assessed the lessee’s rights under the lease for state and county ad valorem taxes. A pursual of the statutory appeal procedures resulted ultimately in a judgment of the Henderson Circuit Court upholding the assessment. The oil company has appealed from that judgment to this Court.

The appellant’s contention is that Kentucky ceded exclusive jurisdiction over the lands in Camp Breckinridge to the United States; that only Congress can make a recession of jurisdiction such as to permit the imposition of Kentucky ad valorem taxes on property within the boundaries of the camp; and that Congress has not made a recession. We think the contention is valid.

The land in the Camp Breckin-ridge Reservation was acquired by the United States in 1942, by condemnation. At the time of the acquisition KRS 3.010 expressed the blanket consent of Kentucky to the acquisition by the United States of lands acquired for forts, etc. (A subsequent 1954 amendment to KRS 3.010 stated that a consent should not be deemed to result in a cession of jurisdiction.) Relying on certain language from the opinion in Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264, the appellees contend that the blanket consent expressed in KRS 3.010 was not sufficient to vest exclusive jurisdiction in the United States. However, in Commonwealth v. King, 252 Ky. 699, 63 S.W.2d 45, it was held on ample precedent that the blanket consent to acquisition operated as a complete cession of jurisdiction. We find no merit in the contentions that a blanket consent cannot be given and that exclusive jurisdiction cannot be obtained by the United States over land acquired by condemnation rather than by purchase.

Congress has not expressly receded jurisdiction to Kentucky to impose ad valorem taxes on property within the boundaries of Camp Breckinridge. The Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq., does not apply to military lands, and even then it is not clear that the Act recedes jurisdiction to levy ad valorem taxes.

The lease here in question was executed pursuant to implied authority of the executive branch of the federal government to protect public lands. See Executive Order No. 9337, President F. D. Roosevelt, April 24, 1943; Public Land Order No. 729, June 19, 1951; 40 Op.Atty.Gen. 41-42. The appellees argue that the executive authority here has the same status as an Act of Congress and therefore may be operative to recede jurisdiction. However, the power to lease, even if considered to have legislative sanction, does not necessarily include the power to recede jurisdiction.

The Supreme Court has held that an unrestricted sale by the United States to a private person, of land over which it has exclusive jurisdiction, operates as a relinquishment of jurisdiction. S. R. A., Inc. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851. However, this was expressed as a rule of necessity, based on the proposition that sovereignty should end with the reason for its existence. We think there is sound reason for saying that if the United States conveys away a portion of the territory over which it has jurisdiction there can be no reason for the jurisdiction to continue over that portion. But the same is not true where the United States conveys some right less than the fee. In that case valid reasons may exist for a continued exercise of federal jurisdiction over the territory.

It must be remembered that the jurisdiction of the federal government over ceded land is territorial jurisdiction and embraces all activities, rights and transactions within the external boundaries of the land. S. R. A., Inc. v. Minnesota holds that if the government conveys away the territory, jurisdiction goes with it as a matter of necessity. But this is not authority for the proposition that if the government merely conveys some right that must be exercised within the boundaries of the federal territory, jurisdiction over that right is receded.

Murphy Corporation v. Fontenot, 225 La. 379, 73 So.2d 180, on which the ap-pellees rely, is not persuasive authority, because it was based on a provision of the Louisiana Cession Act that granted exclusive jurisdiction to the United States only so long as the property was used for military purposes. Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264, upon which the Louisiana Court relied and which the appellees here also assert in support of their position, is not applicable here because the holding in that case was that where land is acquired by the United States other them with unqualified consent of the state, the exclusive jurisdiction of the United States continues only so long as the land is used for the purpose for which it was acquired. The same rule was announced in Surplus Trading Company v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091. But where, as here, the land is acquired with unqualified consent of the state, the federal jurisdiction continues so long as the government retains ownership, without regard to whether the land is used for governmental purposes.

It has been held that the jurisdiction of the federal government continues over buildings and other facilities on ceded land, even though leased to private persons for private use. See Commonwealth v. King, 252 Ky. 699, 68 S.W.2d 45. We see no distinction between leases of such things and leases of oil and gas rights, as concerns the effect of the lease on jurisdiction powers.

It is our conclusion that the authority of the Secretary of Interior to lease the oil and gas rights did not carry with it by implication any power to recede federal jurisdiction, and that the lease did not by any rule of necessity effect a recession of jurisdiction.

If the Secretary of Interior had no power to recede federal jurisdiction, then a specific provision in the lease purporting to make the lease rights subject to state taxation. could have no valid effect.

KRS 3.110 (enacted after the United States acquired Camp Breckinridge) stating that Kentucky consents to any retro-cession by the United States of lands whenever the United States has ceased to exercise exclusive or special jurisdiction over the land, and that a conveyance of lands to private owners shall be deemed to constitute a retrocession of jurisdiction, could not operate to qualify an unlimited consent given for acquisition of land before its enactment. Nor do we conceive that the legislature of this state has power to determine what shall constitute a retrocession of jurisdiction by Congress, at least as to lands previously ceded.

It is argued that the lease in purporting to make the lease rights subject to state taxation followed an “established policy” of Congress. However, we do not find any satisfactory evidence of the existence of such a policy.

A further argument is that the Secretary of Interior had power to require payment of state taxes by the lessees, as a proper condition on which the lease would be executed. It might possibly be correct that the Secretary could require the lessee to pay a tax equivalent to the state and county governments as part of the consideration for the lease, but the Secretary clearly has no authority to vest in the state and county a taxing power which belongs exclusively to Congress.

It is our conclusion that since jurisdiction of the territory in which the lease rights have their situs has not been retroceded to Kentucky, and since Congress has not consented to the imposition of ad valorem taxes on property within the boundaries of federal enclaves, the lease rights are not subject to ad valorem taxes in Kentucky.

The judgment is reversed with directions to enter judgment in conformity with this opinion.