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

text:
    DALLAS COUNTY LEVEE IMPROVEMENT DIST. NO. 6 et al. v. RUGEL.
    No. 1224-5590.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.

      K. R. Craig, H. B. Sanders, and George A. Titterington, all of Dallas, for plaintiffs in error.
    H. B. Thomas, Jr., of Dallas, for defendant in error.
   LEDDY, J.

Defendant in error, F. C. Rugel, who owned certain lands, situated in the Dallas county levee improvement district No. 6, became delinquent in the payment of certain taxes levied by said district to' secure the payment of outstanding bonds which were issued in 1918. Suit was brought by the district, in which the bondholders intervened as plaintiffs, and upon trial judgment was rendered against Rugel for the amount of the taxes, interest, and penalties, with a foreclosure of the tax lien, and the premises were ordered sold. At the sale, plaintiff in error Powell became the purchaser.

Writ of possession was duly issued, but, before the officer could execute the same, defendant in error, Rugel, applied for and obtained a temporary injunction, which was made permanent on final hearing, restraining the officer from executing the writ of possession and the purchaser, Powell, from taking possession of said lands prior to the expiration of two years from the date of his deed, and providing that at the end of two years writ of possession should be issued and Powell placed in possession of so much of said land as had not been redeemed by defendant in error, Rugel. This judgment was affirmed by the. Court of Civil Appeals" for the Fifth District. 20 S.W.(2d) 148.

Defendant in error seeks to-. sustain the judgment rendered by the trial court by applying the provisions of an act passed by the Fortieth Legislature, at the First Called Session, c. 69, now embodied in our statutes as article 7284a (Vernon’s Ann. Civ. St. art. 7284a), which authorizes the owner of land against which a foreclosure has been had for taxes due a levee district to redeem the same at any time within two years from the date of the sale upon payment of double the amount paid by the purchaser at foreclosure sale, and furthei^providing that the purchaser at such sale, or his assignee, should not be entitled to the possession of the property sold for taxes until the expiration of two years from the date of sale.

Plaintiffs in error insist that the Legislature was without power to apply the provisions of the above statute to a sale under a judgment for taxes levied to secure the payment of bonds issued by the levee district prior to the passage of the act, as the same would impair the obligation of the contract between such district and its bondholders, in contravention of the provisions of both State and Federal Constitutions.

Defendant in error maintains that the act in question does not impair the obligation of any contract, but merely changes the remedy afforded the bondholders, and therefore does not run counter to said constitutional provisions.

Any impairment of the obligation of a contract ⅛ within the prohibition of the Constitution; the degree of impairment being immaterial. Walker v. Whitehead, 16 Wall. 314, 21 L. Ed. 357.

By the obligation of a contract is meant the means, which at the time of its creation the law afforded for its enforcement. Louisiana v. St. Martin’s Parish, 111 U. S. 716, 4 S. Ct. 648, 28 L. Ed. 574; Von Hoffman v. Quincy, 4 Wall. 535, 18 L. Ed. 463.

“While it is undoubted,” says Ruling Case Law (volume 6, § 321), “that the legislature may make changes in the remedy, it is-necessary that the contract should be left with the same force and effect, including the substantial means of enforcement, which existed when it was made.”

By the same authority the doctrine is announced that the most certain test of impairment is that the value of the contract has been diminished. Volume 6, § 320.

If article 7284a, which was enacted subsequent to the issuance and sale of the levee district’s bonds, did no more than change the remedy upon the contract, without materially affecting the rights of the bondholders, it would, of course, be subject to no constitutional objection. Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143.

But it is obvious that the act in question does more than merely change the form of the remedy afforded tbe bondholders for the collection of the indebtedness which the levee district obligated itself to pay. It was the legal right of the bondholders, under their contract with the district, and the laws in force at the time the bonds were issued, in case of default in the payment of any taxes levied by the', cfistiict against lands situated therein, to secure the payment of such bonds, to obtain a judgment of foreclosure of the tax lien, under which the property would be sold, and there would be conveyed to the purchaser a title free from any right of redemption by the owner. The law affording this remedy entered into and became a part of the contract as effectively as 'if it had been so denominated in the bonds. The remedy was annexed to the contract at the time ⅞ was made; hence any law impairing this substantial right impaired the obligation which the contract imposed. Green v. Biddle, 8 Wheat;. 17, 5 L. Ed. 547; Bronson v. Kinzie, 1 How, 311, 319, 11 L. Ed. 143; McCracken v. Hayward, 43 U. S. (2 How.) 608, 614, 11 L. Ed. 397; Barnitz v. Beverly, 163 U. S. 121, 16 S. Ct. 1042, 41 L. Ed. 93; Luter v. Hunter, 30 Tex. 689, 98 Am. Dec. 494.

That the burden imposed by the act in question diminishes the value of the security given to the bondholders under their contract with the levee district is too plain to admit of any serious controversy. By the terms of the act the owner of land is given the valuable privilege of retaining possession of same for a period of two years after .it has been sold under judgment of foreclosure, without being subjectto ihe payment of any rent or liability for waste, while the purchaser is liable during this time for taxes accruing thereon. At the end of the redemption period the owner is not obligated to redeem, but may.decline to exercise .his option to do so. It would be paradoxical indeed to say that a valuable estate or right of possession may thus be carved out of land pledged to secure the payment of a debt, without material impairment of the rights of a creditor who, at the time of the execution of the contract creating the indebtedness held by him, enjoyed the privilege of a security which might be sold free from the burden of any such estate or right of possession.

The doctrine was announced by the Supreme Court of the United States at an early date (Bronson v. Kinzie, supra), and has since been steadily adhered to, that a state law, passed after the execution of a mortgage, which declared the equitable estate of the mortgagor should not be extinguished for twelve months, after sale under a decree in chancery, is within the Constitution of the United States, which prohibits a law impairing the obligation of contracts, and is void. In discussing this question, Chief Justice Taney, speaking for the court said: “It [the new act] declares that, although the mortgaged premises -should be sold under the decree of the Court of Chancery, yet that the equitable estate of the mortgagor shall not be extinguished, but shall continue for twelve months after the sale. ⅜ * * If such rights may be added to the original contract by subsequent legislation, it would be difficult to say at what point they must stop. An equitable interest in the premises may, in like manner, be conferred upon others; and the right to redeem may be so prolonged, as to deprive the mortgagee of the benefit of his security, by. rendering the property unsaleable for any thing like its value. ⅜ * * Any such modification of a contract by subsequent legislation, against the consent of one of the parties, unquestionably impairs ⅜ obligations, and is prohibited by the Constitution.”

In Howard v. Bugbee, 24 How. 461, 16 E. Ed. 753, it was contended that a statute of Alabama, which authorized a redemption of mortgaged property within two years after sale under decree, did not impair the obligation of the contract, but only enlarged the time at the completion of which the purchaser at the mortgage sale would acquire an indefeasible title. The court, however, denied such contention,, and held the cases of Bronson v. Kinzie, and McCracken v. Hayward, supra, as applicable to and decisive of the unconstitutionality of said act as applied to mortgages executed prior to its passage.

■ If the Legislature' of this state has the power to apply a law to a sale under foreclosure by a bondholder. whose obligation was created prior to its enactment, giving the owner of land situated in a levee district two years in which to redeem, no valid reason exists why it could not extend such privilege to four, six, or even ten years. It was so declared by the Supreme Court of the United States in McCracken v. Hayward, before cited, where the court had under consideration the power of a state Legislature to enact a law providing for an appraisement of lands against which a mortgage had been foreclosed and forbidding a sale unless it brought at least two-thirds of its appraised value. It was there determined that such a law was ineffectual and void as applied to a mortgagee whose mortgage was created prior to the passage of the act. In passing on the question, the court remarked: “The same power in a state, legislature may be carried to any' extent, if it exists at all; it may prohibit a sale for less than the whole appraised value, or for three-fourths, or nine-tenths, as well as for two-thirds, for if the power can be exercised to any extent, its exercise must be a matter of uncontrollable discretion, in passing laws relating to the remedy which are regardless of the effect on the right of the plaintiff.”

In Hull v. State ex rel. Rollins, 29 Fla. 79, 11 So. 97, 16 L. R. A. 308, 30 Am. St Rep. 95, the Supreme Court of Florida, in a well-considered opinion, after an elaborate review of the authorities, reached the conclusion that the rights of a purchaser at the sale of land for taxes, under a statute which provided that a purchaser or his assignee should have a conveyance of the land unless the same should be redeemed within one year next succeeding the sale, is a contract right, and a statute passed subsequent to such sale, which proposed to extend the period allowed ¡by the former act for redemption, is a violation of the obligation of the contract and of no effect as to such purchaser or his assignee. Many cases are cited by the court as sustaining the doctrine announced, among which may be noted the following: Howard v. Bugbee, 24 How. 461, 16 L. Ed. 753; Barnitz v. Beverly, 163 U. S. 126, 16 S.Ct. 1042, 41 L. Ed. 99; Lehman v. Moore, 93 Ala. 189, 9 So. 590, 592; Oliver v. McClure, 28 Ark. 563; Fisher v. Green, 142 Ill. 94, 31 N. E. 172, 176.

There is no reasonable basis for any distinction between the rights of a bondholder and that of a mortgagee. In each case security is provided to insure the payment of a debt by means of a proceedure afforded by an existing law at the time the contract is made, which allows the creditor the privilege of a foreclosure under which the property may be sold free from any right of redemption by the owner. If the Legislature lacks authority to enact subsequent legislation adding the burden of redemption under a sale made for the benefit -of a mortgagee, it is difficult to understand upon what theory it could possess the power to impose such burden under a sale made in behalf of a bondholder.

The levee improvement district having pledged to its bondholders the entire estate of its lands when sold under foreclosure for delinquent taxes, free from any right of redemption, one owning land in the district will not be permitted to avail himself of the benefit of subsequent legislation substituting a right to sell such lands subject to an estate or right of possession in the landowner ' or his assignee for two years. Barnitz v. Beverly, supra.

It was well within the power possessed by the Legislature to provide for the redemption of lands by owners, when the same should be sold for taxes due a levee district. In so far as the act is applicable to obligations issued subsequent to its passage, it is a valid measure. Any effort, however, to apply the provisions of the act to sales under foreclosure for taxes levied to secure the payment of bonds issued prior to the passage of the law is ineffectual, as it would impair the obligation of the contract made by the levee improvement district with those holding its bonds.

We recommend the judgments of the trial court and the Court of Civil Appeals be reversed, the injunction dissolved, and that judgment be here rendered in favor of plaintiffs in error.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiffs in error, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: CRITZ, J. CURETON, C. J.

license: Public Domain

text:
    GERNETH et ux. v. GALBRAITH-FOXWORTH LUMBER CO.
    No. 1411-5605.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      See, also, 6 S.W.(2d) 215.
    H. L. Stuart and R. R. Bell, both of Oklahoma City, Okl., and W. S. Moore, of Gaines-ville, for plaintiff in error.
    Will D. Garnett, of Gainesville, and Underwood, Johnson, Dooley & Simpson, of Amarillo, for defendant in error.
   CRITZ, J.

Plaintiff recovered judgment against the lumber company in the district court of Cooke county, Tex. This judgment was reversed and rendered by the Court of Civil Appeals. 21 S.W.(2d) 67. The case is now in the Supreme Court on writ of error granted on application of the plaintiffs. The Court of Civil Appeals has made a very comprehensive statement of the facts ahid issues of the case, and we therefore copy and adopt the following portion of the opinion of that court.

“The Galbraith-Eoxworth Lumber Company has prosecuted this appeal from a judgment against it in the sum of $1,500 in favor of Otto Gerneth and his wife, Mabel Gerneth, as damages sustained by them in the loss of services of their minor child, D. C. Gerneth, resulting from injuries sustained by the child when he was caught in an ascending freight elevator owned by the defendant company.
“The defendant owned a lumber yard situated between Broadway and Elm streets in the city of Gainesville, fronting north on Broadway, and extending south through the block to Elm street. The lumber yard was inclosed, but at the Broadway entrance there was a driveway extending into and through the lumber yard which the defendant provided for the purpose of driving vehicles into the yard and there loading and unloading lumber and other material handled by it in its •business. Gates were provided to close the openings to the driveway, but usually they were left open during the day.
“Inside £he defendant’s plant an elevator was provided for the purpose of carrying material to the attic above the main floor and bringing down material therefrom. The elevator fronted on one side of the driveway, and the floor of it was flush with the floor of the driveway and about one foot distant therefrom whenever it was down. The elevator was operated through the means of two ropes which hung down by the side of it, reaching the floor; one of which was what is called a brake rope, used to release the brake, and the other was to pull the elevator up after the brake was released. When there was no; load, or very little weight, upon the floor of the elevator, it would sometimes ascend when the brake was released by pulling the brake rope, without pulling on the other or hoist rope, but with a load on the elevator it was necessary to pull the hoist rope after the brake was first released. The elevator was back 25 feet from the south line of Broadway street, and was constructed as such elevators are usually constructed.
“Plaintiffs lived on Broadway street about 300 feet distant from the lumber yard. They had two small children, one of whom was D. O. Gerneth, the boy that was injured, who was a little past the age of three years, and the other about the age of five. Those two children were in the habit of straying from home, and on two or three occasions prior to ■the accident had strayed into the driveway running through defendant’s plant, and, when discovered, they were at once required to leave the premises by any of defendant’s employees who might happen to discover their presence. Other children in the neighborhood were in the habit of passing through the driveway on their way to school.
“On the day of the accident, one of defendant’s employees discovered plaintiffs’ two children in the driveway, and told them to leave, which they did, and that employee watched them until they reached the street crossing, where they headed towards home. Later in the day, the children returned, and without the knowledge of any of defendant’s employees went into the driveway, and D. C. Gerneth got aboard the elevator, and one of the children pulled the brake rope. When he did so, the elevator ascended, and, as it went up, the child’s leg was caught between the floor qf the elevator and the joist supporting the floor of the attic above, some 10 or 12 feet above the floor of the driveway, and by reason thereof the child’s leg was broken and he sustained other injuries. The child did not cry out, but employees of the defendant heard the elevator moving, and, upon going out to see the cause thereof, discovered the child fastened against the tipper joist, and released him by sawing out a part of the elevator floor. The injury so sustained by the child was the basis of the judgment rendered in plaintiffs’ favor.
“The allegations of negligence presented by plaintiffs and upon which the judgment was based were embodied in the following three special issues, with the findings of the jury thereon, to wit:
“ T. Was the elevator on which the child D. C. Gerneth was injured in the place and , in the condition it was kept at the time especially and unusually attractive to children of the age of said D. C. Gerneth? Answer: Yes.
“ ‘2. Was the defendant guilty of negligence as that term is above defined in keeping and maintaining the elevator at the place where and in the condition it was at the time of the injury? Answer: Yes.
“ ‘3. Was such negligence, if any, of the defendant .the proximate cause of the injury to the child? Answer: Yes.’
“Plaintiffs introduced testimony to the effect that the door or opening into the elevator could have been equipped with a guard at a cost of some $60, which would have served to exclude entrance into it when not in use.”

In addition to the above statement we call especial attention to the following facts supported by the record:

The witness Boone testified, among other things, as follows: “I was at the place of the accident soon after it happened. The accident occurred at the Galbraith-Eoxworth Lumber yard kinder up in the front part close to Broadway right west of the office and at the elevator there. The elevator with reference to this driveway is about 35 feet from the edge of the sidewalk on Broadway and located on the west side of the driveway. Beginning at Broadway going south along the driveway the thing you- come to on the right side going south is a kind of opening that is used to put in beaver board and screen wire and such as that. The second thing is the work shop, and then the lumber bins and then you go on down the side of the Elm street section and come to some lumber bins. The first thing you come to when you enter the driveway on Broadway and before you get to the elevator and going south on the right-hand side, is the warehouse; the elevator is situated in this warehouse and I estimate the warehouse to be about fifty feet long. This driveway runs right on through the warehouse and on down through the yard. The elevator is located, with reference to the west side of this driveway, right on the driveway, that is, before you come to the elevator in' going south there or starting into the driveway on Broadway, there is a floor along there that runs up to the driveway and that floor connects up to the elevator platform; then the elevator cuts into the floor of this platform and a part of this floor runs from the elevator platform up to the edge of the driveway there. The elevator is one of those that is run by a rope, that is, you pull a ropo to start it, and it is operated by weights and the pulley system. They use the big rope for the pulley and one of the ropes is a starter rope or brake rope. The big rope is used to pull with and has weights to it. In the first place, there is the platform and that platform is about six feet by six feet and ’attached at the top of the platform frame of the elevator to take it up is a wire cable, and there is ⅝ rope, with weights; the wire cable is on both sides of it; there is an up-right on each side forming a triangle and this runs in a track on the side of this-up-right that runs from the floor up to the top ; this cable runs along a track and there is a spool up there rolling it up in pulling the 'elevator up. On this spool is a wire cable and there are ropes connected with the machinery up at the top. The ropes hang to the side of the elevator — one is the big rope used to pull it with and one of the! ropes is used for a brake to release the elevator for it to run. The ropes hang down plumb to the floor-; they aré situated on the north side * of the elevator, and when one wants to start the elevator, he takes hold of one of those ropes. They are grass ropes. The rope that is used as the brake is a loose rope. The one that is used for the pulley is a rope that runs plumb around. When you want to start the elevator to raise it, you release the brake rope by pulling it and that releases the brake. The brake part is something that is attached to the elevator machinery above at the top somewhere, and so when the brake rope is pulled that releases the ' brake and then the elevator starts up. If you have weight on it, you pull on the rope. If you are heavy, you have to pull on the pulley rope, but it would go without much weight on it, if you released the brake. The main cable hooks on the sides of what we call the platform, on each side of it, and pulls it up. There are two bars down each side that fasten right at the top of the pulleys that go up and down the poles, or up and down the sides there up those tracks; it has a main cable and it also has two ropes in addition to that, hanging down there. The elevator was used at that time for taking things above into the warehouse there, a sort of attic to hold rolls of roofing and things of that sort, rubber roofing, etc., glass and other things, wall board and such things as that. They had two stairs to it; it was a sort of loft up there; it was ten or twelve feet high, I imagine. There was no protection or guard out there to keep people off the elevator; nor any rail, or wire netting or iron work to keep people off the front of the elevator or anything with respect to keeping one off the elevator. I had been on the elevator myself. I would just get on it and release the brake at the bottom and take the big rope and pull myself up; just pull on the rope, and if you have much weight on there you have to pull it up. I have seen it go up once or twice without the pulling of the rope; I do not know' how come it to. I have noticed it go up without anybody pulling the big rope. I was in the workshop ; that was two or three months before the accident when that occurred; . we were in the workshop there lifting out some counters and I heard the elevator going up and two or three of us in there lifting and we heard it going up and some one had probably tapped that rope or something, the one playing loose, in passing or something, and I think probably in passing they had released the brake. I did not see any one out there at that time. Three of us went out there and there wasn’t anybody else there at that time. I did not find out what started it. There were two other men with me that saw it besides myself. I did not look around much to see if any one else was there; we heard .the elevator moving on its way up and man’s horse tried to run away. We did not see anybody else there.” „

The witness Boone also testified, in substance, that he had seen children there a number of times, and had seen the two children (referring to the injured child and his brother) at least once before. This witness said he had seen other children there about every week. Also he testified, “I had seen the public or people generally walk through there.”

Howard Stanley, a witness for the lumber company, testified, among other things, that he had been working for the lumber company about six weeks before the boy got hurt; that he saw the boy previous to the accident playing out im the yard where the lumber was stacked, hut in a different part of the premises from where the elevator was located; that he had seen the two boys a number of times prior to the accident; that he told them to keep out, warning them that they might get hurt; that “they were playing all around through the bins and they would move and go over to the stacks”; that about twenty or thirty minutes before the accident they were underneath the stairway on the north side of the warehouse; that he tried to keep the two children out, but found he could not do so; that the last time he saw the two children before the accident they were inside the warehouse between the .elevator and the street and about fifteen or twenty feet from the elevator. On this occasion the witness made them leave. This witness also testified: “I never told the boys to stay out of the elevator; I nevefij told them because I never saw them at the elevator before that; I knew the elevator would be dangerous if children of that size saw it or got on it. I knew if they saw it it would be dangerous, and if they got on it that it would be dangerous. If they saw it it would be dangerous, if they got on it.”

We think from the record that the evidence is sufficient in law to’establish the fact that the passageway of the warehouse where the elevator was located was generally used by the public an£ by many children in going from one street to the other on the two sides of the building. The two children in question here played around the premises a good deal, and we think the jury was justi'fied in concluding that they saw and knew that many other children, and the general public, went into and through this passageway where the elevator was located at will.

The elevator in question was right up against the passageway so 'used by many children and by the public; it had dangling and' attractive ropes, and from the description above set out, and the photographs contained in the statement of facts, we have reached the conclusion that the jury was, in law, justified in finding that such elevator was especially and unusually attractive to children of tender age and immature judgment. Duron v. Beaumont Iron Works (Tex. Com. App.) 7 S.W.(2d) 867, and authorities there cited. To our minds the elevator here was fully as liable to attract children of tender age as the instrument in the Duron Case.

As stated by the Court of Civil Appeals [21 S.W.(2d) 67, 68]: “In order to establish a cause of action against defendant, the burden was upon the plaintiffs to show, first, a duty owing by defendant to exercise ordinary care to protect plaintiffs’ child from the danger which resulted in his injury; and, second, a failure on the part of defendant to discharge that duty. See S. A. & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S. W. 28.”

Basing its conclusions principally on the holding of our Supreme Court in Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S. W. 375, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111, the Court of Civil Appeals in the instant case holds that as a matter of law there was no duty owing by the lumber company to exercise ordinary care to protect this child from the danger incident to his injury, because of the rule announced in the Barnes Case, supra, that one who erects upon his own premises buildings or other instrumentalities for the transaction of an ordinary business of the country in the ordinary way is not required by law to adopt safeguards to protect from injury other persons, even children, who come thereon without invitation, authority, or allurement. We find no fault with’the rule in a proper case, but in our opinion it is not applicable to the facts of this case.

In the instant ease, the facts are, in law, sufficient to justify a fact finding that the passageway beside which this elevator was located was being used by children of immature age, and by the public, as a way or road to pass from one street to another in the city. This being the case, the jury was justified in testing the rights of the parties just as though this elevator had been erected on a public street or upon an open lot.

It is the rule of law in this state that: “Where, however, the owner maintains upon his premises something which on account of its nature and surroundings is especially and unusually calculated to attract and does attract another, the court or jury may infer that he so intended and hence invited him. Where one exhibits on his own land, near where children are likely to be, pictures or unusually attractive machinery, etc., he can expect no other result than that it will appeal to the known instincts of a child of immature judgment and cause him to venture thereon, just as the dog was drawn into the baited trap by the scent of meat. Townsend v. Wathen, 9 East., 277.”

When we test the rights of the parties here by the above rule we have this elevator erected and maintained beside a passageway open to the public and children generally, to use as a road or way; we have an instrument which the jury was justified in finding was especially and unusually alluring and attractive to children of immature judgment and tender age; we have a dánger, which was concealed and latent and not patent, in that a pull on the dangling rope attached to and a part of the elevator would release the elevator, and allow it to rise, and that at times such elevator had gone up without any one on it, and without any known cause; and we have an instrument which could have been made safe at small effort and expense. Certainly we cannot say, as a matter of law, when we take into consideration the nature of this instrument and its surroundings, that the owner rested under no duty whatever to exercise ordinary care to protect plaintiffs’ child from its dangers.

It is true that, under the circumstances shown by the facts in the Barnes Case, supra, the owner is not under obligation to protect structures such as was erected on his premises from children even of tender age, but we do not think this rule should be extended to a structure erected even on one’s own premises, where such structure is erected contiguous to a passageway allowed by the owner to be used by many children and by the public as a way or road. Certainly in such a case ordinary justice would require that the owner use ordinary care to protect a child of tender age and immature judgment from the instrument. The ordinary child might and should realize that it ought not to go inside of a man’s inclosure or warehouse to play, but the same child might feel at perfect liberty to go inside such place when he sees many other children or the public so doing. We recommend that the judgment of the Court of Civil Appeals be reversed and the judgment of the district court be affirmed.

CURETON, C. J.

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


author: SHARP, J. OURETON, C. J.

text:
    PRATLEY v. SHERWIN-WILLIAMS CO. OF TEXAS.
    No. 1413-5609.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      Currie McCuteheon, of Dallas, for plaintiff in error.
    Leake, Henry, Wozencraft & Frank and W. T. Henry, all of Dallas, for defendant in error.
   SHARP, J.

The question for decision in this case is clearly stated in the dissenting opinion of Judge Looney [21 S.W.(2d) 321, 323] as follows :

“There is but one question presented on this appeal, which was tersely stated by Judge Vaughan in the majority opinion, as1 follows: ‘In order to dispose of the question before us, it is only necessary to discuss the authority of Judge Beard to make the order extending the time for filing the statement of facts SO days, as entered by him. If Judge Beard, under the law, had the authority to make said order, then plaintiff in error was' wrongfully deprived of his statement of facts, and the judgment of the court below will have to be reversed and cause remanded.’
“The question presented, however, was decided by the majority against the authority of Judge Beard, in the following language: ‘Judge Beard did not take any part in the proceedings had in the cause, from the presentation of the pleadings to the rendition of judgment ; his only act being the hearing of and entering order overruling the motion for a new trial. We therefore hold that he was not the judge before whom the cause was tried, and that he did not have authority to extend the time for filing statement of facts therein, but that authority rested only with Judge Hare, who was the judge before whom said cause was tried.’ ”

Judge Vaughan in the majority opinion states the material facts as follows:

“This cause was tried in the Ninety-Fifth judicial district court of Texas for Dallas county (of which court Hon. Royal R. Watkins is the presiding judge) by Hon. Silas Hare, judge of the Fifteenth judicial district court of the state of Texas, presiding as judge, of said Ninety-Fifth judicial district, under the Act of the Fortieth Legislature, c. 156, p. 228, organizing and dividing the state of Texas into nine judicial districts, providing for the transfer of district judges and the extension of terms of district courts. Judgment was rendered on February 6, 1928. Plaintiff in error filed his amended motion for a new trial February 10, 1928, on which date said motion was heard and overruled by Hon. P. O. Beard, judge of the Sixty-Seventh judicial district court of Texas', sitting for 1-Ion. Royal R. Watkins, judge of the Ninety-Fifth judicial district court of Texas. At the same time, and forming a part of the order overruling said motion, Judge Beard, ‘allowed plaintiff in error 80 days from the time allowed by law in which to prepare and file bills of exception and statement of facts.’ •
“At this time Judge Hare was in his own district, holding court, and Judge Beard had been assigned by the presiding judge of the administrative district, in which Dallas county is included, to try cases in Dallas county, and was so engaged at the time he overruled the amended motion of plaintiff in error for a new trial. The statement of facts' involved was dated July 10, 1928, and was presented by the attorney for plaintiff in error to the attorneys for defendant in error on July 13, 1928. On July 14, 1928, attorneys for defendant in error returned to attorney for plaintiff in error said statement of facts, advising him that they refused to agree to same, on the ground that the period of 90 days following the overruling of the motion for a new trial had long since expired at the time said statement of facts was presented. On July 18, 1928, said statement of facts was received by Judge Silas Hare at Sherman, Tex., by express, together with a letter from the attorney for plaintiff in error, advising Judge Hare of the refusal of the attorneys for defendant in error to agree to same, and the grounds on which said refusal was made. Judge Hare refused to approve or sign the statement of facts so presented to him, or to prepare and sign and file with the clerk of the court a correct statement of facts proved on the trial, as required by law, in cases where the parties do not agreed upon such statement of facts, or the judge does not approve or sign the statement presented to him. See article 2240, R. O. S. 1925. On August 3, 1928, Judge Hare entered an order in said cause, refusing to comply with the provisions of article.2240, supra, on the grounds, as stated by him, namely: ‘After this elapse of time and with an incomplete record before me, I am unable to make up a statement of facts that I am willing to certify is1 correct.’ Petition for writ of error and bond was filed June 29, 1928.”

In many of the district courts of this state the dockets had become congested with cases, and to meet this condition article 200a, Vernon’s Annotated Texas Statutes, dividing the state into nine judicial districts, was adopted. It further provides the ways and means of how the services of the various district judges of Texas may be utilized in the trial of cases. It was evidently the purpose of He Legislature in enacting the article aforesaid known as the Administrative Judicial Districts Act to devise means of utilizing the services of the various district judges of this state by authorizing their transfer from one district to another to facilitate the disposition of cases and to try and dispose of accumulated business. By reason of the provisions of the foregoing act, Judge Hare' of the Fifteenth judicial district was transferred for duty in the district courts of Dallas county and tried part of this case, concluding his services in the case on return of the verdict and rendition of judgment thereon. It is shown that he then returned to his own district, and afterwards Judge P. O. Beard of the Sixty-Seventh judicial district, under the foregoing act, was assigned for duty in the district courts of Dallas county. In the regular way there came before him in the case for hearing the motion for a new trial, and this appeal is prosecuted from his order overruling the motion. At the same time and as a part of the proceeding connected with the case in overruling the motion for a new trial, he granted appellant’s application for an extension of time as above stated, within which to file the statement of facts.

Article 2092, Vernon’s Annotated Civil Statutes, provides rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction. Among other provisions and sections, it contains the following:

Section 21: “The judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own court room try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the ease is pending and at the time the judgment or order is rendered, and two or more judges may try different cases in the same court at the same time, and each may occupy his own court room or the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or proceeding pending in his court to any other of said courts, and the judge of any court to which a case or proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his court room try any case pending in any other of such courts.”

Section 24: “Any judge may hear any part of any ease or proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.”

Section 25: “Any judge may hear and determine demurrers, motions’, petitions for in-.junetion, applications for appointment of receivers, interventions, pleas of privilege, pleas in .abatement, all dilatory pleas, motions for new trial and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is1 pending without having the case transferred to the court of the judge acting, and the judge in whose court the case is pending may thereafter proceed to hear, complete and determine the case or other matter, or any part thereof, and render final judgment therein. Any judgment rendered or action taken by any judge in any of said courts in the county, shall be' valid and binding.”

The foregoing subdivisions of article 2092, supra, are applicable to the civil district courts of Dallas county.

It is plain from the foregoing facts stated that plaintiff in error was denied the right of appeal by reason of Judge Hare misconstruing the statutes to the effect that the order entered by Judge Beard, allowing an extension of time for filing a statement of facts, after acting upon the motion for a new trial, was void. Under the law and the facts stated, we think Judge Beard had the authority to make the order allowing an extension of time for filing a statement of facts in this ease, as was done.

The right of appeal from a case tried in the courts of this state is a valued one and is guaranteed by the Constitution and the decisions. Shelton v. Wade, 4 Tex. 159, 51 Am. Dec. 722; Eppstein v. Holmes, 64 Tex. 560; 3 Tex. Jur. § 3, p. 35.

It is a further well-settled rule in this state that statutes giving and regulating the right of appeal are recognized as remedial in their nature and should receive a liberal construction in furtherance of the right of appeal. Shelton v. Wade, 4 Tex. 150, 51 Am. Dec. 722; Eppstein v. Holmes, 64 Tex. 560; 2 R. C. L. § 6, pp. 29 and 30.

It is also a well-settled rule of this state that when parties fail to agree on a statement of facts, and the appellant, within the time prescribed by law, presents his statement to the trial judge, and requests him to prepare and file a statement of facts, it is the statutory duty of the judge to do so, and on his failure to prepare and file such statement appellant is entitled to a reversal and the granting of a new trial.

Under the law Judge Beard had the right to make the order allowing appellant an extension of time within which to file his statement of facts, as w;as done, and we know of no rule or provision of law which would deny plaintiff in error the right of appeal from the judgment of the trial court, and the court erred in not giving him that right by preparing and filing a statement of facts as required by law.

Judge Greenwood in the case of G., G. & S. E. Ry. Co. v. Muse, 109 Tex. 360, 207 S. W. 897, 899, 4 A. L. R. 613, has given a deal-definition as to what constitutes a trial in the courts of this state in the following language:

“Giving the word ‘trial’ its ordinary and accepted meaning in law of ‘the judicial investigation and determination of the issues between parties’ (Century Dictionary; 28 A. & E. Enc. of Law, 636), it would just as much include the action of the court on a motion, presented immediately after an order had been rendered granting a new trial, to set aside such order, as it would include the action of the court in granting a new trial.”

Also see Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Palmo v. Slayden, 100 Tex. 13, 92 S. W. 796, 797.

Eor the reasons herein stated, we recommend that the judgment of the Court of Civil Appeals and the trial court be reversed, and this cause be remanded to the trial court for another trial.

OURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commis^ sion of Appeals.

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


author: KYAN, J. CURETON, C. J.

text:
    MULKEY et al. v. ALLEN et al.
    No. 1201-5553.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.

      Crane & Crane, of Dallas, for plaintiffs in error. ■
    Cockrell, McBride, O’Donnell & Hamilton and W. B. Harrell, all of Dallas, for defendants in error.
   KYAN, J.

The district court sustained general demurrer to a petition filed by defendants in error (as plaintiffs in that court), alleging, in substance:

First. That J. F. Mulkey and A. T. Mulkey were husband and wife at and long prior to the birth of Lydia Allen and until their respective deaths, the said J. F. Mulkey having died intestate in January, 1925, and the said A. T. Mulkey in June, 1927; that the said J. F. and A. T. Mulkey “were ever childless.”

That plaintiff Lydia Allen was the natural child of Thomas Smith and - Smith, when, in or about the year 1872, she being about seven years of age, her mother having died and her father being ill prepared to look after her, J. F. Mulkey obtained the consent of Lydia’s father that he might legally adopt her as his child, under the name of Lydia Mulkey, she to become a part of his family, with the understanding and agreement that upon the death of the survivor of J. F. or A. T. Mulkey, the said Lydia should become entitled to J. F. Mulkey’s one-half of the Mul-keys’ property, as if she were his natural child.

That, beginning shortly after Lydia began to live in his family, J. F. Mulkey made like assurances to her and gave her to understand that she was his adopted child and would become entitled to his property, and “the said Lydia through all the duration of her remaining as a child in the family of the said J. F. Mulkey and wife, rested and abided under and in the light of such assurances and agreement and bestowed her love and affection and rendered services as his child, to the said J. F. Mulkey, implicitly relying upon the assurances of the said J. F. Mulkey that such was his understanding and agreement with her.”

Second. It was further alleged that in or about the year 1872, when Lydia was a child, not more than seven years of age, J. F. Mul-key entered into a written contract With her said natural father by the terms of which, if he, the said Smith, would surrender the said child Lydia to the said J. F. Mulkey, he, the said Mulkey, would execute a statutory adoption of the child and he and his wife would rear the child as their own, and would give said child his one-half of all the property belonging to himself and wife upon the death of the survivor.

Said contract is alleged to have provided for the absolute and complete termination of the relation of father and child between said Thomas 'Smith and said child, and the delivery to the said Mulkey and wife of the exclusive and full custody and control of her; it was further alleged that immediately upon the execution of said written contract, delivery and custody of said child were given over to said Mulkey and wife and thereby said written contract on the part of said Thomas Smith became fully executed.

Third. That while the child Lydia was living in the family of J. F. Mulkey and wife, as their daughter, the said J. F. Mulkey specifically and definitely agreed with her “that in consideration of her being and remaining in his home in the relation to him of child to parent, as she did until her marriage, she should receive, upon his death, or upon the death of his wife, should the latter survive him, all his one-half of the property belonging to the community estate of himself and wife, and that said contract and understanding and agreement between said plaintiff and the said Mulkey were repeatedly re-affirmed by the said J. F. Mulkey through express agreements, declarations and course of conduct.”

Plaintiffs below alleged further their inability to state with more particularity the terms of the contracts and agreements upon which' they rely, the date thereof, or the circumstances under which made, save that the alleged contract to adopt and to give the child the said J. F. Mulkey’s one-half of the community property were made and entered into originally about the year 1872, and the alleged agreements and contracts were, as plaintiffs believe and allege the fact to be, partly oral and partly in writing; that the written agreement was in possession of said J. F. Mulkey and, as plaintiffs are informed and believe, thereafter in the possession of his wife, and should now he in the possession of the defendants, who were given- notice to produce same upon trial or secondary evidence thereof would be offered.

Fourth. It was further alleged in paragraph VII of the petition that:

“Should the plaintiff Lydia Allen be not entitled to the relief as hereinabove sought then the said Lydia Allen and her children, Odessa Allen Wilson, Oyrene Allen Duff, Adell Allen Fowler and Fletcher Allen, come now and alternately seek relief as follows: They show to the court that on to-wit, August 8, 1923, the said J. F. and A. T. Mulkey did execute a written instrument which was not executed in the manner and with the formalities required to constitute same a valid will and testament, but which was and constituted an agreement into by and between them and in behalf of these plaintiffs, by the terms of which each undertook to convey to the survivor his or her interest in the aforesaid property, and that upon the death of the survivor their properties should go in a designated manner, and among the directions as given in said agreement was the direction that the following plaintiffs should be entitled to the following bank stock, to wit:
“Lydia and Charley Allen, $3,000 of Dallas Trust and Savings Bank Stock;
“Odessa Allen Wilson, $2,000 of Dallas Trust and Savings Bank Stock;
“Cyrene Allen Duff, $2,000 of Dallas Trust and Savings Bank Stock;
“Adel Allen Fowler, $2,000 of Dallas Trust and Savings Bank Stock;
“Fletcher Allen, $2,000 of Dallas Trust and Savings Bank Stock;
“ — meaning, to the respective amounts, par value of said stock, which stock was, at the date of the death of either the said J. F. Mulkey or A. T. Mulkey, as well as continuously since and now, of the value of $155 per share; that is to say, $3,000 of said stock was and is of the value of $4,650; and $2,-000 thereof was and is of the value of $3,100..
“That if for any reason the said Lydia Allen is not entitled to the specific relief here-inabove sought, then in any event she and her said husband and children are entitled to a decree vesting them with title to such an interest in the properties and estate of the said J. F. Mulkey. and A. T. Mulkey as will be equivalent to the value of said bank stock, the title to which was intended and agreed to be given to them by the terms of said written agreement aforesaid.”

That said instrument was in the possession of the said J. F. Mulkey and A. T. Mulkey “and is or should be in the possession of the defendants at this time, and defendants are given notice to produce same upon the trial hereof, or secondary evidence of the contents thereof will be offered.”

The petition then continues:

“That in obedience to the said understanding and agreements, the said Lydia’s own father did surrender to the said J. F. Mulkey the custody and control of the said Lydia, himself completely relinquishing such control and custody, and continuously thereafter until her marriage to the plaintiff O. L. Allen the said Lydia so continued as a member of the family of the said Mulkey and wife, going-under the name of Lydia Mulkey, rendering to the said J. F. Mulkey and wife, the same services, and bestowing upon them the same love and affection, as if she were their own child, she all the while having been given by the said J. F. Mulkey to understand that she was his legally adopted child. That the said Lydia married the plaintiff C. L. Allen on the 16th day of October, 1887, with the full consent of the said J. F. Mulkey, and ever thereafter the said J. F. Mulkey and wife treated the said O. L. Allen as their son-in-law, and universally introduced him as such. That continuously up to the date of the death of the said J. F. Mulkey both the plaintiff Lydia and her husband fully understood that the said Lydia was the legally adopted child of the said J. F. Mulkey, and neither of them was disillusioned until immediately following the death of the said J. F. Mulkey, when they were advised by his surviving wife, A. T. Mulkey, that no legal adoption had been made of the plaintiff Lydia.”

Fifth. It was further alleged that J. F. and A. T. Mulkey acquired and possessed at their respective deaths an estate consisting of community property of the approximate value of $112,000 (the real estate of substantially the value of $15,550 and personal property consisting of cash on hand and deposit, stocks, bonds, promissory notes of various parties, and household and kitchen furniture of substantially the value of $95,971.19, totaling $111,521.19).

Plaintiffs’ prayer was for:

“* * * Specific performance of the contracts and agreements of the said J. F. Mul-key, as hereinabove set forth, to adopt her as his child and for her to have his portion of said property, being one-half of the properties hereinabove particularly described, and vesting in the said Lydia Allen title to said property; and if for any reason the said Lydia Allen be not entitled to such relief, that she have judgment for the properties and the values thereof as awarded to her under the terms of said written instrument of August 8th, 1923, as described in paragraph VII thereof, and that the remaining plaintiffs herein be likewise awarded judgment and decree for their portion of said properties as awarded to them under said written instrument of date August 8th, 1923. And plaintiffs pray that a partition and division be made setting apart to them and to each of them, in hind, the properties to which they or each of them may be further entitled, or if it be found that said properties or any portion of them are incapable of partition, that a sale thereof be had and plaintiffs’ portion be set apart to them out of the proceeds of said sale. And plaintiffs pray for such other and further relief, general or special, legal or equitable, as may appear proper and as in duty bound will ever pray.”

The general demurrer having been sustained, plaintiffs below refused to amend, whereupon the' trial court dismissed the cause at plaintiffs’ cost.

On appeal, the Honorable Court of Civil Appeals found that the plaintiffs below declared upon three contracts, viz.: (1) One made by and between Thomas Smith and J. F. Mulkey; (2) one made between Lydia Allen and J. F. Mulkey; and (3) one made on August 8,1923, in writing between J. F. Mulkey and A. T. Mulkey, not executed in the manner and with the formalities required to constitute same a valid will and testament, by the terms of which each undertook to convey to the survivor his or her interest in the property owned by th'em, and that upon the death of the survivor their properties should go in a designated manner; among the directions given in said agreement was one that certain designated property and stocks should be turned over to Lydia Allen and the other plaintiffs in the trial court, as set out in paragraph VII of their amended original petition.

The Honorable Court of Civil Appeals concluded:

First, that the general demurrer was properly sustained as to the 3rd contract above designated because it was testamentary in character and not executed with the formalities required to constitute a valid will; this conclusion was not complained of in appellants’ motion for rehearing and the Court of . Civil Appeals therefore did not further consider it on such rehearing.

Second, that in so far as it was sought to enforce specific performance of said second contract, the demurrer was properly sustained as to the real estate involved, because the contract as alleged, not being wholly in writing, is in contravention of the statute of frauds.

Third, that the demurrer to the first con-, tract, generally, and to the second contract insofar as personal property is involved, in the latter, was improperly sustained, and the judgment of the trial court was reversed and the cause remanded for trial. 19 S.W.(2d) 936.

To review such judgment of reversal, this application for writ of error was granted.

Opinion.

The first contract alleged to have been made in 1872 between Smith (the child’s father) and Mulkey is void, on the authority of Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216, because, as said by the court in that case, the consideration was the complete relinquishment by the father of his child to another, merely for the child’s enrichment and the bartering away of the child for a property return; the contract, as alleged in the petition, contemplated that complete custody and control should pass from the natural father to the adopting party.

In the Bridgewater Case a verbal contract was entered into by the child’s father, at that time his only surviving parent, with John W. Davis, whereby the father contracted to surrender the child’s custody and control to Davis, a single man who never married, who in turn agreed upon that consideration to rear the child, give him the care and rights of a son, make him his heir, and leave to him at his death all of his property. The child’s custody accordingly was taken over by Davis, and the child’s father never thereafter, had possession of or exercised any control over him, but all such was vested in and exercised by Davis. The trial court’s findings of fact, adopted by the Court of Civil Appeals, show that Davis substantially carried out and performed his part of the contract, except that he failed to leave any or all of his property at his death to the child and died intestate; the child always bestowed on said Davis the attention, affection, and obedience that a son usually gives to a father and performed chores and services around the home place as needed, from his ninth year to the death of Davis in 1911.

The district court rendered judgment in favor of Hooks, the administrator of the estate of John W. Davis, deceased, and against the child, Bob Bridgewater. Upon appeal the Court of Civil Appeals for the First Supreme Judicial District upheld the contract, reversed the trial court’s judgment, and rendered judgment in favor of Bob Bridgewater establishing his right and title to all of the property, real and ljersonal, belonging to the estate of John W. Davis, subject.to the right of Hooks, the administrator, to administer the estate under the orders of the county court, in accordance with the law governing such administrations. 159 S. W. 1004.

The Supreme Court granted writ of error, reversed the judgment of the Court of Civil Appeals, and affirmed that'of the district court (111 Tex. 122, 229 S. W. 1114, 15 A. L. B. 216), and in so doing announced two controlling propositions, or principles of law, both of which are applicable to this case, viz.:

First. That a parent has no property interest in his child, should not be permitted to deal with it as property, and therefore an agreement by which a father attempts to renounce the relation to a son imposed by nature and to surrender his powers and duties to another, for the child’s financial advantage, is contrary to public policy, is not a valid contract, and can constitute no consideration for one whether for real estate or for personalty.

Second. A parol contract to leave real property to one on death is not excepted from the requirement that surrender of possession is indispensable in order to avoid the effect of the statute of frauds (Rev. St. 1925, art. 3995), by the fact that the contract itself contemplates retention of possession by the owner during his lifetime.

Under the above first principle of law, it is immaterial whether the contract is in writing or not — it is void, and therefore the alleged agreement of 1872 between Davis and the child’s father is unenforceable.

Under the second principle of law above stated, so much of the alleged verbal contract between Lydia Allen and J. F. Mulkey as may pertain to real estate is void because in violation of the statute of frauds, and this brings us to the question whether such alleged verbal contract between Lydia Allen and J. F. Mulkey is properly pleaded as against a general demurrer, in so far as the personal estate is concerned.

' Defendants in error rely principally on Jordon v. Abney, 97 Tex. 296, 78 S. W. 486, to sustain the affirmative thereof.

In that case the Supreme Court in answer to certified questions held:

First. There is a distinction between a contract to adopt and one to leave property at death; a mere contract to adopt, followed by the assumption and performances of the duties of parent and child, and the execution of adoption papers not filed for record, do not comply with the statute regulating adoption and do not establish the right of inheritance thereby provided as a consequence of lawful adoption, which right arises by operation of law, from the acts of the parties made in compliance with the statute, and does not depend on or aifise from contract. But a contract between .two persons upon valuable consideration, when sufficiently certain, that the will, at his death, leave property to the other, is enforceable, where no statute is con: travened.

Second. A specific performance of such contract, if validly made, may be enforced and cannot be defeated by a will bequeathing the property to some one else, since that only takes effect after death.

It also appeared in that case that an agreement was alleged on the part of Mrs. Ogle, the surviving widow, after her husband’s death, that in consideration of the female plaintiff continuing to perform the specific services and duties, she should have all of Mrs. Ogle’s property at her death. The court held that the alleged contract made while she was covert did not bind her and the mere continuance, after her husband’s death, of the pre-existing conditions would not constitute it a contract on her part, but a new agreement after her discoverture, with all the essentials of a valid contract was alleged, and this .was held, the statute of frauds apart, sufficient to bind the property left at her death.

Here, there was no contract alleged between Lydia Allen and Mrs. A. T. Mulkey after the latter’s discoverture, but Mrs. Allen’s claim, if any she have, must rest upon a valid contract for a valuable consideration made between her and J. F. Mulkey during the latter’s lifetime, disconnected from the alleged contract to adopt, claimed to have been made between J. F. Mulkey and Mrs. Allen’s father, and such contract must be properly pleaded.

The petition after declaring on the first contract alleged to have been made in 1872 between Mrs. Allen’s father and J. F. Mul-key, which as stated above is unenforceable, proceeds in the first paragraph thereof as follows, viz.: “And the said Lydia throughout all the duration of her remaining as a child in the family of the said J. F. Mulkey and wife, rested and abided under and in the light of such assurances and agreement and bestowed her love and affection and rendered services as his child, to-the said J. F. Mulkey, implicitly relying upon the assurances of the said J. F. Mulkey that such was his understanding and agreement with her.”

In the second paragraph of said petition, after alleging that said first contract was in writing and fully complied with by Mrs. Alien's father in the full and complete termination by him of the relation of parent and child, and surrender of the child to Mulkey, proceeds as follows, viz.: In compliance with such agreement, “the plaintiff should receive the said J. F. Mulkey’s part of the property at the death of the survivor of himself and his said wife; delivery of said child and the custody of her were given over to the said J. F. Mulkey and his wife, and thereby said written contract on the part of the said Thomas Smith became fully executed.”

In the third paragraph of said petition it is averred:

“That in consideration of her being and remaining in his home in the relation to him of child to parent, as she did until her marriage, ■ she should receive, upon his death, or upon the death of his wife should the latter survive him, all his one-half of the property belonging to the community estate of himself and wife, and that said contract and understanding and agreement between said plaintiff and the said Mulkey were repeatedly reaffirmed by tbe said J. F. Mulkey through express agreements, declarations and course of conduct.”

Also:

“That in obedience to the said understanding and agreements, the said Lydia’s own father did surrender to the said J. F. Mulkey the custody and control of the said Lydia, himself completely relinquishing such control and custody, and continuously thereafter until her marriage to the plaintiff C. L. Allen, the said Lydia so continued as a member of the family of the said Mulkey and wife, going under the name of Lydia Mulkey, rendering to the said J. F. Mulkey and wife, the same services, and bestowing upon them the same love and affection, as if she were their own child, she all the while having been given by the- said J. F. Mulkey to understand that she was his legally adopted child. That the said Lydia married the plaintiff O. L. Allen on the 16th day óf October, 1887, with the full consent of the said J. F. Mulkey, and ever thereafter the said J. F. Mulkey and wife treated the said C. L. Allen as their son-in-law,' and universally introduced him as such. That continuously up to the date of the death of the said J. F. Mulkey both the plaintiff Lydia and her husband fully understood that the said Lydia was the legally adopted child of the said J. L. Mulkey, and neither of them was disillusioned until immediately following the death of the said J. F. Mulkey, when they were advised by his surviving wife, A. T. Mulkey, that no legal adoption had been made of the plaintiff Lydia.”

The said alleged contract between Mul-key and Mrs. Alien, as pleaded, is too indefinite and uncertain in not stating even approximately, When it was made nor when it would terminate, nor its terms — only a conclusion that Mulkey would leave his property to her; there is no averment that she at any time agreed to do anything or that there was any consideration promised or paid by her, but the entire pleading is referable to the first or alleged written contract of 1872 between Mrs. All-en’s father and J. F. Mulkey.

'A petition must be clear, definite, and certain, and advise the defendant what he is expected to meet on the trial.

While the statute now requires the petition to contain a “concise” statement of the cause of action (Rev. Civ. Stat. 1925, art. 2003), instead of a “full and clear” statement, as formerly — such statement must in logical and legal form state the facts constituting the plaintiff’s cause of action (Rev. Civ. Stat. 1925, art. 1997); the rule by wbicb tbe sufficiency of a pleading is tested is tbe same, and facts, not conclusions, must be averred. Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409, 411; Negociación v. Love (Tex. Civ. App.) 220 S. W. 224; M., K. & T. Ry. v. Poole, 104 Tex. 36, 133 S. W. 239; Ware v. Shafer, 88 Tex. 44, 29 S. W. 756. Tbis is tbe doctrine strictly followed in cases like this of claims against dead men’s estates, resting entirely in parol. Alexander on Wills, § 136; Page on Wills, § 92. As said in. Munk v. Weidner, supra, tbe terms of the agreement must be so sufficiently clear as to evidence, with a reasonable certainty to show the intention of the parties as to what is done or to be done by tbe parties, and must be stated with tbe same degree of certainty. “Such -contracts are looked upon with suspicion, and are only sustained when established by tbe clearest and strongest evidence.” Dicken v. McKinley, 163 Ill. 318, 45 N. E. 134, 135, 54 Am. St. Rep. 471; Dicks v. Cassels, 100 S. C. 341, 84 S. E. 878, 879; Kinney v. Murray, 170 Mo. 674, 71 S. W. 197, 202; Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L. R. A. 369.

As against a general demurrer, a petition will be given every reasonable in-tendment in its favor (Sovereign Camp v. Piper [Tex. Civ. App.] 222 S. W. 649; Jackson v. Compress Co. [Tex. Civ. App.] 202 S. W. 324; Ayneswortb v. Peacock [Tex. Civ. App.] 225 S. W. 866); but when after every construction favorable to its sufficiency is indulged, it either fails to allege some element essential to a cause of action or negatives plaintiff’s right to a recovery, the general demurrer must be sustained. Golden v. Odiorne, 112 Tex. 550, 249 S. W. 822; City of Laredo v. Russell, 56 Tex. 398; Schlinke v. De Witt County (Tex. Civ. App.) 145 S. W. 660.

A contract cannot be presumed to be clearer or more specific than alleged to be in the petition, and of course must he as definite as the proof. Ward v. Stuart, 62 Tex. 333. The pleading does not allege that anything done by Lydia Allen was in reference alone to contract No. 2, disconnected from contract No. 1, hut does show that what she did was with reference to the void adoption contract (No. 1) made by her father, void under the authority of Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216.

We think the petition shows on its face that there was but one contract made, viz., the one between Smith and Mulkey, and that all the other allegations therein were but a reaffirmance of that contract, wbicb, as stated above, being contrary to public policy, conferred no rights.

We accordingly recommend that the judgment of the Oourt of Civil Appeals be reversed and that of the district court be affirmed.

CURETON, C. J.

Judgment of tbe Oourt of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


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

text:
    WILLIAMS et al. v. HENDERSON COUNTY LEVEE IMPROVEMENT DIST. NO. 3.
    No. 1209-5521.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    W. R. Bishop and Sam Holland, both of Athens, and John H. Sharp, of Austin, for plaintiffs in error.
    Justice & Sigler, of Athens, James Young, of Kaufman, and O. B. Freemen and Eckford & McMahon, all of Dallas, for defendant in terror.
   SHORT, P. J.

This is a consolidated suit, the original suits having been instituted in the district court of Henderson county by the plaintiffs in error, wherein damages to their land, caused by the defendant in error constructing levees and.digging diversion channels for the purpose of reclaiming overflow land situated in the Trinity river bottom, other than the lands of plaintiffs in error, was sought. Some of the plaintiffs in error also sought to recover damages for land taken by defendant in error in constructing its levee improvements, and for damage to crops, which they had grown on their land and which had matured during the year 1927.

In the trial court the plaintiffs in error each recovered judgment for the damage to their lands, which were not within the levee district, and each of those seeking -to recover for land taken and damage to his crops recovered judgment for such damages, the total amount of recovery being approximately $51,-000. The Court of Civil Appeals affirmed that part of the judgment for the land taken, and for the damage to the crops, but reversed that part of the judgment of the tidal court awarding recovery for the damage to the lands, and remanded the cause. 19 S.W.(2d) 197.

The defendant in error, in order to reclaim from overflow some 18,000 acres of land in Trinity river bottom, has, by digging a diversion channel, diverted the water of Turkey creek with a watershed of 28½ square miles, which formerly flowed into the Trinity river basin, and caused such waters to flow into Cedar creek basin. It has also constructed levees 25 to 30 feet high across the basin of Cedar creek with a watershed of 1,080 square miles near its mouth where such basin is 10.-000 feet wide, leaving only a space of from 800 feet to 1,200 feet through which the flood waters of Cedar creek and the diverted waters of Turkey creek are compelled to flow into Trinity river. Below this levee, it changed the channels of Cedar creek, and of the Trinity river, by digging diversion channels, neither of which were as wide nor as deep as the original channels. It is also shown that the water of Walnut' creek flows - into Cedar creek above where these levees were constructed.

Situated adjacent and above these levees are located the lands of plaintiffs in error. These lands are in the basin of these creeks,* and prior to the construction of the levees were bottom land farms, which annually produced profitable crops for the owners. At flood stage, previous to the construction of the levees and channels by defendant in error, some portions of these lands were subject to overflow, though the water at such times did not remain on the lands for a sufficient length of time to destroy tire crops growing thereon. After these levees were constructed, and in the year 1927, the crops growing on these lands were totally destroyed, for which the plaintiffs in error recovered compensation by the judgment rendered in the trial court, which part of the judgment the judgment of the Court of Civil Appeals affirmed. The opinion of the Court of Civil Appeals states rather fully the grounds upon which recovery was sought, the defenses interposed to such recovery, and those portions of the statute applicable to the various provisions and obligations of the respective parties, in consequence of which it will be necessary for us to make only a brief statement of the facts, referring to the statement in the opinion of the Court of Civil Appeals for a more complete one.

The Court of Civil Appeals refused to permit that part of the judgment of the trial court to stand in so far as it is based on permanent injuries caused to be inflicted on said lands by the changed conditions resulting from the operations of the defendant in error in erecting levees and changing the channels of the creeks and also of the river, for the alleged reason that the court is unable to find any testimony sufficient.to fix a definite market value of said lands after the construction of such levees, holding that under the facts the measure of damages for permanent injuries to land is the difference in the market value thereof just prior to the time of the levee improvements and immediately subsequent thereto.

The plaintiffs in error call our attention to the fact, disclosed by the record, that the defendant in error did not present this question as an assignment of error filed in the court below, nor was it presented in the brief filed in the Court of Civil Appeals, the question being only presented as fundamental error, and claiming that this question was not an error of a fundamental nature. According to the provisions of article 1844 (Rev. St.) all errors not distinctly specified are waived. Preferring to dispose of this question, regardless of this state of the record, we will proceed to discuss those assignments of error in the application, calling in question the correctness of that portion of the opinion of the Court of Civil Appeals which deals with it.

There was no request of the trial judge to prepare and file his findings of fact and conclusions of law, and none were filed. Had the trial judge responded to such a request, and filed findings of fact, it would have been the privilege of the Court of Civil Appeals to have set aside those findings, if, in its opinion, there was no testimony, or an insufficient amount of testimony to support any one or more of the findings. In the absence of any findings of fact by the trial judge, if the record furnishes testimony legally sufficient" to support the judgment of the trial court, upon any theory sound in law, upon which the judgment could be sustained, it was the duty of the Court of Civil Appeals to affirm the judgment of the trial court. The judgment of the trial court having been reversed, substantially for the reason that the Court of Civil Appeals says it could not find any testimony which attempts to fix a definite market value of such lands, after the construction of such levees, and assuming that the measure of damages for permanent injuries to the land is the- difference in the market value just prior to the time the improvements were made and immediately subsequent thereto, it necessarily reached its conclusion that the judgment of the trial court should be reversed by reason of the fact that there was no testimony to legally sustain that part of the trial court’s judgment which allowed the plaintiffs in error to recover damages for permanent injuries to the land.

In fact the Court of CiviRAppeals recites that: “The trial court in his judgment did not state whether the damages adjudged are for permanent or temporary injuries to said lands.” With the record in this condition it was the duty of the Court of Civil Appeals to sustain this part of the judgment, which was reversed, if the record furnished sufficient legal testimony to support the judgment in the trial court upon the theory that the judgment was based upon a finding of fact that the lands had been injured. The opinion of the Court of Civil Appeals clearly reflects its conclusion that the testimony was ample to have supported the findings by the trial judge that the lands of the plaintiffs in error had been injured by reason of the construction of the levees. Whether that injury should prove to be a permanent one, for ever afterwards irremediable, was not a material question before the Court of Civil Appeals, even under a proper assignment of error. For the Court of Civil Appeals to have concluded that this part of the judgment of the trial court was based upon a finding of fact, by the trial judge, that the injuries to the lands were of a perpetual nature, in the absence of such a finding, and with the present's of ample testimony that the injuries to ths lands in fact existed, it was pure speculation on the part of the Court of .Civil Appeals to assume that the trial judge based his judgment on a finding of fact that the injuries to the lands were perpetual.

The application for the writ, of error granted in the case presents eight assignments, an inspection of which demonstrates the fact to be that all of them relate either directly or indirectly to the question we have been discussing. The sixth and seventh assignments of error, which furnish the grounds for the granting of the writ, are couched in the following language:

“The Court of Civil Appeals erred in holding that the trial court concluded that prior to the construction the market value of these lands was from $15.00 to $20.00 per acre as testified by appellant’s witnesses, for the reason that other witnesses testified that these lands were of the market value of from $40.00 to $100.00 per acre, and as there is in the record no conclusions of fact and law, and nothing contained therein which would indicate that the testimony of such other witnesses were not entitled to credit, the Court of Civil Appeals was not in law warranted in speculating on what the trial court concluded in this respect.
“The Court of Civil Appeals erred in holding that the trial court concluded that ‘the market value of these lands was totally destroyed, as testified to by appellees, but that such market value prior to the construction was from $15.00 to $20.00 per acre as stated by appellant’s witnesses, there being no conclusions of fact and law and there being evidence from which the trial court could have concluded that the market value of said lands were not totally destroyed, and the holding here complained of being a matter of pure speculation in which the Court of Civil Appeals was not warranted in indulging.”

It will be observed that the sixth assignment challenges the correctness of the holding of the Court of Civil Appeals that the trial court concluded the lands belonging to plaintiffs in error, prior to the construction, had a market value of from $15 to $20 per acre, as testified by the witnesses introduced by defendant in error, for the reason that numerous witnesses, some of whom were wholly disinterested, testified that these lands had a market value, prior to the construction, of from $40 to $100 per acre.

The seventh assignment of error challenges the correctness of the Court of Civil Appeals in-holding that the trial court concluded that: “The market value of these lands was totally destroyed,” and their value having been found by the trial judge to have been from $15 to $20.00 an acre, before the construction of the levees, and no testimony having been introduced as to their value after the levees had been constructed, the trial judge had no basis in fact or in law to render the judgment he did with respect to this character of damage, since the measure of damages, under the conditions assumed to exist by the Court of Civil Appeals, was the difference between the value of the land just prior to the construction of the levees and immediately thereafter.

It is apparent, under all the testimony, that the trial court could have found the value of these lands to have been more than $15 to $20 per acre. J. W. Bartlett, one of the plaintiffs in error, recovered judgment for $30 per acre as damages to his 359 acres, H. L. Elagg recovered $40 per acre for .10 of his 32-acre tract, and for the balance of the 22 acres Elagg recovered damages in the sum of $400. These facts clearly show that the trial court found a value of these lands to have been more than from $15 to $20 an acre. These facts also show conclusively that the trial court did not find that the value of these lands was totally destroyed. $500 was the amount of damages which the trial court awarded to H. L. Flagg for injuries to 22 of his 32-acre tract, and $400 was allowed him for the 10 acres, which was taken. The record discloses the same condition, with reference to the tracts of land owned by the defendant in error Linder. These facts are all recited in the judgment rendered by the trial court.

In the face of this situation, which the record discloses, the Court of Civil Appeals uses language clearly indicating that it reversed the judgment of the trial court on the ground that there was no testimony in the record tending to show the market value of the lands injured after the levees had been constructed, which testimony, of course, was essential to be produced in order that the trial judge might have a basis upon which to estimate the value of the-permanent injuries to the lands in question. This language, to which we refer, is: “It appears, therefore, that the trial court concluded that the injury to the land was permanent, .and that their market value was totally destroyed, as testified to by appellees, but that such market value prior to construction was from $15 to $20 per acre, as stated by appellant’s witnesses, who appeared to have been disinterested.” The Court of Civil Appeals having erroneously concluded that the trial judge of necessity must have based his judgment upon the theory that the injuries to the lands, of which complaint was made, were perpetual and finding, as a fact, that there was no testimony tending to fix the market value of the lands after the injuries were inflicted, it fell into the further error of misconceiving-the law, applicable to the facts of this case. An inspection of the statement of facts shows that substantially all of the plaintiffs in error testified that the market value of their lands before the levees were constructed was around $75, and that thejf had no market value after the levees were constructed. The trial judge may have believed this testimony, and also may have believed that the injuries to the lands were permanent, and, if so, he could have based his judgment upon that situation. For instance one of the plaintiffs in error testified, among other things, that: “This cleared land I have in farms where I live was worth about $75.00 per acre before any of these improvements were put in there. With the present conditions I consider it worth nothing now, it don’t pay expenses. I liave about 450 acres over here in the bottom. Mr. Williams’ land (another one of the plaintiffs in error) joins mine. Mr. Williams’ land is affected about like mine. If his land was of a certain value before that time then it has been affected about like mine.” There was other testimony of similar nature and to the same effect given by each of the' plaintiffs in error. The fact that they were interested parties did not necessarily preclude the trial judge from accepting their testimony as being true.

The Constitution of this state (art. 1, § 17) provides that: “No person’s property shall be ⅜ * * damaged * ⅜ * for * ⅜ * public use without adequate compensation being made, unless by the consent of such per■son.” The Court of Civil Appeals does not controvert the proposition that the record ■shows that the property of these plaintiffs in error has been damaged, but it says that there Is not any testimony in the record to enable the court to determine the amount of damages. A great many witnesses testified for the plaintiffs in the trial court that by reason of the nature of the improvements made by the levee district, which are of a permanent type, and the diversion of the entire waters coming •down the Turkey creek basin into the Cedar creek basin, where most of the land owned by plaintiffs is located, and the changing of the original channels of Cedar creek and Trinity river, as was done, and the congestion •of the waters which would hold the waters in the Cedar creek basin on the lands of plaintiffs much longer and to a higher depth than ever before made it a permanent condition, which entirely destroyed the lands for agricultural purposes, and permanently damaged their use and value for all purposes.

It is true that some of the testimony introduced by defendant tends to show that the injury to the land will not continue to exist for all time, and be of a permanent nature. But it is undisputed that the flood waters from the entire Turkey creek watershed has been diverted by deep canals and ditches into the Cedar creek basin, thereby emptying the water into that basin near plaintiff’s lands; that the original channels of Trinity river and Cedar creek have been stopped up, and new and smaller channels dug in place of the old ones; that the levees built are large and permanent, being about 100 feet or more wide at the base and are about 25 or 30 feet high; that where the water used to spread out all over the Trinity river bottom for a distance of several miles, it is now restricted within a space of about 2,500 feet; that Cedar creek basin was about 10,000 feet wide, over which the water coming down that watershed flowed, and now it is restricted within a space of 800 to 1,200 feet. It is undisputed that the location of the ditches, canals, and levees, the diversion of the water from Turkey creek to Cedar creek basin, the changing of the channels of both Trinity river and Cedar creek, and the restriction of the flood waters above stated, are permanent, and that these things had all been done and accomplished prior to the time this suit was tried.

Based upon this testimony, the trial court was amply justified in rendering the judgment that was rendered in the case. The honorable Court of Civil Appeals again misconstrued the law applicable to the ease. The Supreme Court of this state has definitely settled the rule that there is a difference between a permanent injury and one that is perpetual. In E. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227, 228, the Supreme Court of this state said: “Such an injury is one in its nature permanent, though it may not be perpetual, and differs from an injury to a growing crop, which does not result in any injury to the land as distinguished from the. crop.” In the case of Morton Salt Company v. Lybrand (Tex. Civ. App.) 292 S. W. 264, the court said: “Our courts have uniformly held, in cases where it is shown that, by overflow, fire, or other agency, the roots or sod of native or other perennial grasses,' fruit or other trees, grape or berry vines, or the prodxietivity of the soil are impaired or destroyed, that the injury is permanent, in nature, for which the owner is entitled to recover, as damages, the difference in the market value of the land before and after the injury. This doctrine is well illustrated in the decision of the Supreme Court in F. W. & N. O. R. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227. In that case plaintiff sued for damages for injury caused by the burning of grass and turf roots. The trial court instructed the jury that, in estimating the damages, they should be governed by the difference in the value of the land immediately before and immediately after the injury. * * * The injury, as found by the jury, is in our opinion as said by Judge Stay ton in F. W. & N. O. R. Co. v. Wallace, supra, ‘one in its nature permanent, though it may not be perpetual.’ ”

Be that as it may, we think it is trifling with the lawful rights of the plaintiffs in error for an appellate court to speculate upon what theory a trial court has tried the case and rendered the judgment, where the whole record, without dispute, demonstrates the fact to be that the owners of these valuable lands, were in the undisputed enjoyment of them, except from an occasional flood which soon disappeared and left the land uninjured when these levees were constructed and these channels were dug; that after this had been done by the defendant in error, the lands of these plaintiffs in error were found to be practically useless for the purposes for which they had previously been adopted. Before these levees were constructed, flood water coming down Cedar creek through this valley nearly two miles wide, passed into the main channel of Trinity river without being compelled to remain stationary on the plaintiff in error’s lands so long as to materially injure them.. Since these levees have been constructed the reverse is true, and these lands, by reason of the flood waters being compelled to remain on them for so long a time, have been rendered practically worthless. The trial judge having all the facts before him, possibly having personally inspected the lands, with an opportunity to hear and see the witnesses who testified in the case, has determined the facts in the case to be with the plaintiffs in error. We are not inclined to disturb the judgment of the trial judge, and, as we have seen the record does not show that he committed any reversible error in rendering the judgment he did, we think the Court of Civil Appeals erred in reversing and remanding the case to the extent it did.

We recommend that the judgment of the Court of Civil Appeals in so far as it reversed the judgment of the trial court be reversed, and that the judgment of the trial court be in all things affirmed.

CURETON, C. J.

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