author: WALKER, J. HIGHTOWER., C. J.

text:
    VAN DEVENTER et al. v. GULF PRODUCTION CO.
    No. 1715.
    Court of Civil Appeals of Texas. Beaumont.
    March 6, 1931.
    Rehearing Denied Sept. 23, 1931.

      .E: B. Pickett, Jr., of Liberty, for appellants.
    John E. Green, Jr., of Houston, Llewellyn & Dougherty and P. C. Matthews, all of Liberty, O; & Parker, of Beaumont, and Claude McCaleb, of Houston, for appellee.
   WALKER, J.

. When John W. Clayton died, he left to his heirs a tract of 300 acres of land in the David Minchey League in Liberty county. One of the heirs sold by specific metes and bounds 75 acres out of the southwest corner of this tract, identified in the record in this case as the Antoine tract. Later ánother tract of SO acres was sold off the northwest corner of the 300-acre tract, lying immediately north of the Antoine tract. These two tracts consumed all the western end of the 300-acre tract except a small strip of land lying between the south boundary line of the Antoine tract and the south boundary line of the 300-acre tract, 46 feet wide at its eastern end and extending west about 3,000 feet to a* point. The sale of the two tracts just named left 145 acres of the original tract which, on the 19th day of January, 1920, was owned by appellants, Mrs. Martha Van De-venter and her two children, L. Q. Van De-venter and her daughter Mrs. Nona-Mahavier, in*the following proportions, to wit: Mrs. Van Deventer owned an undivided two-thirds interest and each of the children an undivided one-sixth interest. On that date Mrs. Van Deventer and her daughter, Mrs. Mahavier, joined by her husband, 'executed a mineral lease, conveying the entire 145 acres to ap-pellee, Gulf Production Company. This lease did not purport to convey only the undivided interest of Mrs. Van Deventer and her daughter, but all the interest, as if they were the sole owners of the land. However, appellee knew of the interest of L. Q. Van Deventer at the time it took the lease and tried unsuccessfully, both before and after its execution, to secure a lease from him, offering him at one time $17,000 bonus for a lease on his interest. The consideration paid to Mrs. Van Deventer and her daughter for this lease was a bonus of $1,400 cash and semi annual payments of $700 each as delay rental. This delay rental was paid to Mrs. Martha Van Deventer and Mrs. Mahavier on the following dates, that is to say, a payment of $700 was made to them on each of the following dates: January 15th and July 15th of the years 1921, 1922, 1923, and 1924. In the letters transmitting this money .to Mrs. Van Deventer and Mrs. Mahavier, the statement was made that the payment was received by them as “being full payment for delay in drilling for the period and under the terms of said lease mentioned above.” On March 18, 1922, after appellee had paid three of the extension payments above described, all of the appellants, for a valuable consideration paid them, to wit, $100, executed an option contract to Mrs. Nonie O’Brien giving her the right to purchase 72½ acres of the land covered by the above-described lease. On April 12, 1922, in recognition of this option, all three appellants executed to Higgins Oil & Fuel Company a warranty deed to 25 acres of the land covered by the option. In Texas Company v. Van Deventer (Tex. Civ. App.) 290 S. W. 500, is reported a map or plat of the John W. Clayton 300-acre tract, showing its subdivisions as above described, with the small strip of land lying between the south line of the Antoine tract and the south line of the 300-acre tract. As will be explained later in this opinion, that case involved certain phases of this litigation.

This suit was filed on April 20, 1925, by appellants L. Q. Van Deventer and his sister, Mrs. Nena Mahavier, and her husband, against their mother, Mrs. Martha Van De-venter, one of the appellants herein, and Gulf Production Company, the appellee, as a partition suit. The plaintiffs in their petition alleged that they owned an undivided interest of 02.069 acres in the remaining 120 acres after the sale to Higgins Oil & Fuel Company. The balance of the 120 acres, to wit, 57.931 acres, was conceded to their mother with the allegation that appellee had a mineral lease thereon. By an amended answer appellee, Gulf Production Company, answered this petition by general demurrer and special exceptions and by claiming a lease on all the land with pleas of estoppel and ratification against L. Q. Van Deventer. Also, appellee made Higgins Oil & Fuel Company and the Texas Company parties to this suit on allegations that they were asserting adverse claims to a part of the land in controversy. On-October 10, 1925, on motion of the plaintiffs in the partition suit, the trial court ordered ,a severance in the case, leaving the controversy between the Van Deventers and Gulf Production Company in the original suit and docketing' a new suit with these appellants and appellee Gulf Production Company and Higgins Oil & Fuel Company as plaintiffs and with the Texas Company as sole defendant. The purpose of that suit was to locate the eastern boundary line of the Texas Company tract of 80 acres above referred to and shown on the map reported in Texas Co. v. Van Deventer, supra. On the trial of that case judgment was entered in favor of the plaintiffs therein against the Texas Company. The Texas Company duly prosecuted its appeal to this court. Our opinion affirming that judgment is reported, Texas Co. v. Van Deventer, supra. On January 21, 1926, the first amended original petition was filed herein naming as plaintiffs L. Q. Van Deventer, his sister, Mrs. Nena Mahavier and her husband, and Mrs. Martha Van Deventer, and naming as sole defendant Gulf Production Company. By this petition, for the first time, appellants brought into the case the narrow strip of land between the south line of the Antoine tract and the south line of the 300-acre tract. In our subsequent discussion this strip will be designated merely as “the wedge.” On September 17, 1920, plaintiffs filed their third amended original petition, upon which the case went to trial. The following issues were made by this petition: (a) Trespass to try title, (b) Mrs. Mahavier pleaded that the lease as to her was void because the officer taking her acknowledgment to the lease failed to ask her the statutory questions and failed to comply with the statute in taking her acknowledgment. On this allegation she pleaded a willful trespass by appellee, resulting in the destruction of the rental value of her land as oil property. As an alternative plea she joined with her mother (e) in allegations that Gulf Production Company had failed to comply with the obligation of its lease by properly developing the land and by failing to drill the necessary offset wells called for by the lease. Under these allegations they stated specifically the amount claimed by them for the alleged breach of the lease, (d) They also claimed exemplary damages. L. Q. Van Deventer pleaded that the Gulf Production Company willfully trespassed upon his land; that at the time of the trespass the land had a high bonus rental value as well as the usual royalty value; and that in making the trespass Gulf Production Company destroyed his property as oil property and caused him the loss of its rental value. He also claimed exemplary damages. The petition was specific-in itemizing the several items of damage, claimed by each plaintiff.

On October 17, 1927, appellee, Gulf Production Company, filed its second amended original answer upon which the case was tried. By 'this answer it pleaded general and special demurrers and by special plea claimed a lease on all. the land under the above-described lease. Further it pleaded estoppel and ratification against both Mrs. Mahavier and D. Q-. Van Deventer. The facts of the ratification will be given in connection with the discussion of that issue.

The following additional facts are necessary to an understanding of the issues submitted to the jury: On January 15, 1925, Gulf Production Company began drilling the Marl ha Van Deventer Well No. 1 on its 145-acre lease; this well being on that portion of the lease embraced in the above-described deed executed and delivered by the Van De-venters to Higgins Oil & Fuel Company. This well was completed on March 15, 1925, with an initial production of 4,000 barrels per day, but on March 28th was making salt water, which rapidly increased to 80 per cent, salt water, limiting its total production to 99,120 barrels. April 4, 1925, Gulf Production Company, having under lease both the Antoine tract of 75 acres and all the land lying immediately'south of the south line of the 300-acre tract, began drilling on the Antoine tract' a well designated as Antoine No. 3, which was completed on May 13, 1925, with an initial production of 1,650 barrels, its total production being 138,200.89 barrels. On May 26, 1925,- Gulf Production Company began drilling its Martha Van Deventer No. 2 upon the 120 acres involved in this suit, exclusive of-“■the wedge,” located and drilled as an offset to Antoine Well No. 1. Drilling was completed on this well on July 12, 1925. The well was not a producer. No oil whatever was produced therein. No other well was drilled on the Van Deventer 120-acre tract and no other location was ever made thereon by the Gulf Production Company. With the exception of Antoine No. 1, which was.offset by Van Deventer No. 2, no other producing well was drilled within 200 feet of the lines of the 120 acres, exclusive of “the wedge,” except Antoine No. 5, which was begun on November 14, 1925, and drilled to completion January 7, 1926, coming in as a salt-water well. It was consequently abandoned. However, south of the south line of “the wedge,” within 200 feet of that line, appellee drilled its Duessen No. 11, which was a producing well.

Answering special issues, the jury found the following facts:

First. The market value of an oil and mineral lease upon an undivided interest of about 20 or 25 acres in the 120-acre tract of land, during a period of time from on or about tbe 1st day of January, 1925,.to about three or four mouths thereafter, was $1,500 per acre.

Second. The Gulf Production Company drew and drained from and under the 120 acres of land, exclusive of “the wedge,” through its Antoine Well No. 1, 13,800 barrels of oil.

Third. Through Antoine No, 3 and Dues-sen No. 11 Gulf Production Company drained from and under “the wedge” 74,943.4 barrels.

Fourth. The Gulf Production Company willfully, wrongfully, and maliciously made and asserted a claim of title to the undivided interest owned by the plaintiff L. Q. Van De-venter in and to the 120 acres of land, and did willfully, wrongfully, and maliciously enter upon and take the actual possession of said 120 acres of land, and did start drilling thereon, claiming that it had the exclusive right to drill and develop said tract of land for oil, and did actually hold possession thereof for that purpose, and did wrongfully and willfully and maliciously draw and drain oil from and under said 120 acres of land and did convert and appropriate such oil to its own use and benefit.

Fifth. The jury assessed against Gulf Production Company in favor of D. Q. Van Deventer $1,000 exemplary damages.

Because of alleged conflicts' between the answers to the following questions, we give the questions as submitted to the jury, together with the jury’s answer thereto.

“Question No. VI. Did the defendant, Gulf Production Company, wilfully, wrongfully and maliciously violate and breach the terms and conditions of the said lease of date January 19th, 1920, and did the defendant, Gulf Production Company, wilfully, wrongfully and maliciously draw and drain any oil from and under that part of said 120 acre tract of land which lies immediately east of and adjoining the Antoine tract, and excluding that part of said 120 acre tract which is the wedge shape strip between the Antoine tract on the north and the Duessen tract on the south, and convert and appropriate such oil, if any, to its own use and benefit, substantially as alleged in paragraphs 18, 20, 23 and 25 of plaintiffs’ said third amended original petition? (Answer yes or no).” Answer to Question No. VI: “Vos.”

f‘Question No. VII. What amount of money, if any, should the defendant, Gulf Production Company, pay to the plaintiff, Mrs. Nena Ma-havier, as exemplary damages ? (Let your answer to this question, if any amount you may find from the evidence, state- the amount in money.)” Answer to Question No. VII: “None.”

“Question No. VIII. What amount of money, if any, should the defendant Gulf Production Company, pay to the plaintiff, Mrs. Martha Van Deventer, as exemplary damages? (Let your answer to this question, if any amount you may find from the evidence, state the amount in money.)” Answer to Question No. VIII: “None.”

“Question No. IX. Did the defendant, Gulf Production Company, between the 16th day of March, 1925, and the 21st day of January, 1926, proceed to drill and complete ■on that part of said 120 acre tract of land which lies immediately east of and adjoining the Antoine tract, and excluding that part of said 120 acre tract which is the wedge shape strip between the Antoine tract on the north and the Duessen tract on the south, such offset wells as a prudent, responsible operator would have drilled, during that time, upon that part of said tract of land which lies east of and adjoining the Antoine tract, if he was the owner of said land? (Answer yes or no.)” Answer to Question No. IX: “Tes.”

“Question No. X. Did the defendant, Gulf Production Company, proceed by and through the use of reasonable care and diligence (as that term is hereinbefore defined) to properly and adequately develop for oil that part of said 120 acre tract of land which lies immediately east of and adjoining the Antoine tract, and excluding that part of said 120 acre tract which is the wedge shape strip between the Antoine tract -on the north and the Duessen tract on the south, between the 16fh day of March, 1925, and the 21st day of January, 1926? (Answer yes or no.)” Answer to Question No. X: “Tes.”

On this verdict judgment was entered in favor of Mrs. Van Deventer and Mrs. Maha-vier for their interest in the drainage through Antoine Well No. 1, and in favor of L. Q. Van Deventer for the damages suffered by him because of the trespass; also the lease was canceled and L. "Q. Van Deventer recovered his one-sixth interest in the land. Both parties excepted to the judgment and have prosecuted appeals to this court. For convenience we designate the plaintiffs below as appellants and the defendant below as ap-pellee.

Opinion.

Mrs. Mahavier excepted to the refusal of the court to submit to the jury the issue made by her pleading and evidence against the validity of her acknowledgment to the lease. We do not give the details of this plea nor the evidence offered in support thereof because, for the following reasons, this issue is not available to Mrs. Mahavier. By her pleading and evidence She sought, on this issue, to bring her case within the rule announced by this court in Kishi v. Humble Oil & Refining Co., 261 S. W. 228, and by the Supreme Court in the same case, Humble Oil & Refining Co. v. Kishi, 276 S. W. 190, and on the second appeal by this court in the same case, Humble Oil & Refining Company v. Kishi, 299 S. W. 687. The rule is that a wrongful entry upon land by one cotenant, denying the right of entry to his cotenant, and the wrongful development of the land for oil constitutes an actionable trespass. We say that the invalidity of Mrs. Mahavier’s lease is not an issue in this case because she and her husband gave their consent to the ■entry. When she filed her petition on April 20, 1925, she made no attack on the lease. To illustrate her construction of the lease at that time and until the filing of her first amended original petition in January, 1926, we quote as follows from her brief: “As for Mrs. Mahavier, in the petition filed in the partition suit (it being the original petition filed in this case) no allegation was made whereby Mrs. Mahavier attacked the lease signed by her on January 19th, 1920, and which, on its face, purported to apply to and include her interest in the tract of land covered by the lease. But that suit was filed by Mrs. Mahavier and L. Q. VanDeventer, jointly, was simply one for partition and under the original petition as filed no proof could have been made showing the nullity of the lease as to Mrs. Mahavier, nor could any judgment have been rendered upon said petition, cancelling the lease as to her. Therefore, Mrs. Mahavier did not, by any pleading she filed in said partition suit, deny the right of the Gulf Production Company to enter upon and drill, under and in accord with the terms and conditions of the lease, the land covered by the lease which Mrs. 'Van Deventer' had executed and Mrs. Maha-vier had signed. Not until afterwards did Mrs. Mahavier attack said lease as to her undivide.d interest in 'the land, or undertake to have the lease cancelled. In the amended petition filed January 21st, 1926, she, for the first time, attacked the lease as being void because not acknowledged by her in the manner required by statute, and in this same petition, she first undertook (by pleading in the alternative) to have the lease cancelled and also to recover damages caused by defendant’s breach thereof.”

Certainly the facts thus summarized by ■her do not constitute an actionable trespass, that is, “intentional” trespass, as that word was used by the Supreme Court in Bender v. Brooks, 103 Tex. 335, 127 S. W. 168, Ann. Cas. 1913A, 559. Having consented to the entry, she cannot complain of damages resulting from the entry. Had Gulf Production Company produced oil through the surface of her land, we would have a different question before us. But no oil was produced through the surface of her land. Therefore, she can have no relief .on the theory that her lease was void. ■;

But alternatively she joined with her mother in asking for relief on the theory that Gulf Production Company had breached the lease by failing properly to develop it and by failing properly to drill the necessary offset wells. It-was on this theory that judgment was entered in their -favor. . ■

After the return of the verdict, but before entry of judgment, appellants, by written motion, asked the court to order a mistrial because of conflicts between the answers to question No. 6 and questions Nos. 7, 8, 9, and 10, as copied above. By answering question No. 6 the jury found that Gulf Production Company had breached the lease under conditions making it liable for exemplary damages. But notwithstanding it had found all the essential elements of exemplary damages in answering Question No. 6 by its answers to questions Nos. 7 and 8, it denied a recovery of .exemplary damages to Mrs. Mahavier and Mrs. Martha Van Deventer. Appellants assert conflicts between these answers because they contend that since the jh-ry had found every essential element of exemplary damages in their favor, it was required, as a matter of law, to assess some damages in answer to questions Nos. 7 and 8. This is not a sound legal proposition. Though by its answer to question No: 6 the jury found every essential element of exemplary damages, it was not required to assess such damages against appellee. Appellants have cited us to no case where any appellate court has said that exemplary damages must be assessed merely because the jury found the essential elements of such damages. The only suggestion to that effect called to our attention is in Mayer v. Duke, 72 Tex. 445, 10 S. W. 565, 569, where'it was said: “An examination of the cases in our own reports will show that the trial judges have ordinarily used the term ‘may’ in charging upon this subject. Vet it seems to us that in many cases, at least, it would not have been error for them to have gone further, and instructed the juries that they should find exemplary damages, if they found the facts proved which warrant such damages.” That case is not authority for the proposition that where the elements of exemplary damages are found by the jury a peremptory charge should:.be given that some amount of damages should be assessed. In 8 'R. O. L. 666, discussing this proposition, it ‘is said: “The allowance of exemplary damages rests in the discretion of the jury, but the court has no right to tell the jury that they shall award such damages, and it is error to instruct or intimate' in an instruction that the plaintiff is entitled to them as a matter of right.” In Cotton v. Cooper, 209 S. W. 135, 138, Judge Sonfield, speaking for the Commission of-Appeals, said: “Exemplary damages are in the nature of a punishment; They are not awarded to enrich' the injured party, but are intended rather for the public good.” In Evans v. McKay (Tex. Civ. App.) 212 S. W. 680, 685, it was said: “Exemplary damages are awarded as matter of sound public policy in punishment of the guilty one for malicious acts, and not as compensation. The amount awarded goes to the complaining party merely because assessed in his suit.” From these decisions it follows that an injured party has no vested right in exemplary damages. If the essential elements of such damages exist in his case, the jury may, in punishment of the guilty party, assess such damages; but if the jury refuses to assess such damages, whatever may be the facts, the injured party has no ground of complaint.

Appellants correctly assert a conflict between the answers to question No. 6 and question No. 9; for by its answer to question No. 6 the jury found that Gulf Production Company had willfully, wrongfully, and maliciously drawn and drained oil from and under the 120 acres of land exclusive of “the wedge,” and by answer to question No. 9 the jury found that the Gulf Production Company had drilled such offset wells as a prudent, responsible operator would have drilled in protecting the lines of the 120 acres had it been the owner of the land. There is an irreconcilable conflict between these answers. To avoid the effect of this conflict appellee, before judgment was entered, filed the following waiver:

“Now comes the Gulf Production Company, defendant in the above entitled and numbered cause, and before the entry by the court of judgment herein, upon the findings of the jury .heretofore returned, and in open court, presents and says:
, “That if, in the judgment of the court, the .finding of the jury in this cause, in answer to special issue No. 9, presents such a conflict ■as would present the rendition of a judgment ■upon the findings herein, then said defendant, Gulf Production Company, hereby waives any advantage in its favor by reason of such con-.flicit and waives its right to urge such conflict as a ground of attack upon such judgment as thp..court may render for the plaintiffs herein upon the jury’s answer to special issue No. 2. , .
■ “And this defendant hereby now voluntarily tenders back to the plaintiffs said lease of ■January 19, 1920, insofar as same applies to : the 120 acres of■ land involved herein togeth-er' with all rights thereunder, and- reinvests plaintiffs with all- rights and titles given and ■conveyed by said lease - aforesaid in and to said 120 acres of land, and here'now, in open "court, consents that the court may enter judgment cancelling said lease irrespective and regardless of the findings of the jury.”

•'! The' éffebt 'of this waiver was to confess, by ’appellee, a ‘ breach of the' covenants of the lease sufficient to void it and to admit and confess that judgment might be entered on the verdict as if the jury had answered “no” to question No. 9, instead of “yes.” On this construction of the waiver and of the verdict judgment was entered in appellants’ favor canceling the lease and awarding Mrs. Van Deventer and Mrs. Mahavier damages for drainage through Antoine Well No. 1, that is, from all their land except “the wedge.” It follows that the conflict between questions Nos. 6 and 9 was thus made immaterial.

In our judgment no conflict exists between the answers to question No. 10 and question No. 6. By question No. 10 the jury found that appellee had proceeded “by and through the use of reasonable care and diligence ⅜ ⅜ * to properly and adequately develop for oil the land in controversy” exclusive of “the wedge.” No element of question No. 6 conflicts with this finding. True the jury found by its answer to question No. 6 that appellee “willfully, wrongfully and maliciously” violated and breached the terms and conditions of the lease, but this general language referred only to the wrongful drainage of the oil, submitted in the last part of the question. Though question No. 6 refers to paragraphs 18, 20, 23, and 25 of the third amended original petition where appellants pleaded fully the different acts constituting the breach, the. specific language of the question submits only the act of drainage and the reference to the paragraphs of the petition carried the jury to the petition only for a fuller instruction on the acts constituting the drainage. The first part of the question, being general in its terms, is controlled and limited by the specific language following the general submission. Having called the jury’s attention specifically to the act of drainage, and there being no language in the question properly construed, to extend the submission beyond that issue, the finding should be limited to the specific submission, which in no way conflicts with the answer to question No. 10.

We sustain the propositions of Mrs. Van Deventer and her daughter Mrs. Mahavier to the effect that the court erred in refusing them judgment for their royalty interest in the drainage from “the wedge.” This drainage was fixed by the jury at 74,943.4 barrels of oil, of which Mrs. Van Deventer was entitled to two-thirds of one-eighth and Mrs. Mahavier one-sixth of one-eighth at the agreed price of $1.50 per barrel. Answering this proposition, appellee suggests, first; that “the wedge” did not exist. That contention is overruled. Under the undisputed evidence “the wedge” was shown to exist; at the least, that issue was raised by" the evidence. The ease was tried and submitted to the jury on the theory that “the wedge” existed. The questions were framed on the theory that “the -wedge” existed, and no objection was reserved by' appellee against this finding by the court. After judgment, it was too late to contend 'that the existence of “the wedge” was not shown.

As a second counter proposition ap-pellee contends that since neither party knew of the existence of “the wedge,” at the time of the execution of the lease, and since it was not in the minds of the parties when the lease was executed, by a process of construction it should be read out of the lease. On this construction, after draining all the oil from “the wedge,” appellee tendered it back to appellants as worthless oil property. This is not a sound proposition. Where the language of a lease is plain and unambiguous, the express language used must control its construction and the courts cannot look to the intention of the parties in construing the language; intent becomes material only upon allegations of rescission or reformation. What the lease purports to convey is conveyed, regardless of the intention of the parties. Hatcher v. Stipe (Tex. Civ. App.) 45 S. W. 329; Rettig v. Houston West End Realty Co. (Tex. Com. App.) 254 S. W. 765, 768; Davis v. George, 104 Tex. 110, 134 S. W. 326; McCarty v. Pugh (Tex. Com. App.) 265 S. W. 126, 127; Cherry v. Birzzolara, 89 Ark. 309, 116 S. W. 668, 670, 21 L. R. A. (N. S.) 508. Thus in Taylor Cotton Oil Co. v. Early-Foster Co. (Tex. Civ. App.) 204 S. W. 1179, 1180, it was said: “Where there is no ambiguity in a written contract, the intention of the parties thereto is to be gathered from the language used.” Upon proper allegations of mistake, duly and seasonably pleaded, a lease may be reformed or corrected. But to have that relief it, is primary law that the complaining party must place “the defendant in the same situation he was in before the transaction .took place.” Kesler v. Zimmerschitte, 1 Tex. 55. In Black on Rescission and Cancellation, Se.cond Edition, § 127, it is said: “The remedy of,rescission cannot bo had without restoration of the status quo or restitution.” In this case ap-pellee can place appellants in the same situation they were in before the lease was exeeut-,ed only by paying for all the oil drained by .it from under “the wedge” as per its leasing .obligations.' Having released this land to appellants, appellee is bound in law to pay for all damage done by them to it while covered by its lease. It follows that the judgment in favor of Mrs. Van Deventer and Mrs. Mahavier should be reformed by adding thereto the value of their royalty interest in the drainage from “the' wedge,” 'as above' calculated and as so reformed it is affirmed.

We agree with appellee’s contention 'that it should have had an instructed verdict against L. Q. Van Deventer oh the issue of damages because of the trespass. Appellee pleaded against him that he had ratified the lease in-question, which plea was sustained •by'all the-testimony. As he-has no alternative plea asking for judgment, for his royalty interest, the judgment in his favor on .the- issue of damages must be reversed .and here rendered against him. The following argument supports this conclusion: The facts establishing the issue of ratification are as follows:

(a) Though L. Q. Van Deventer owned an undivided one-sixth interest in the leased premises, his mother and sister did not recognize his interest in making the lease but leased all the land.

(b) The material portions of the lease are as follows: “It is further agreed that all the conditions and terms herein shall extend to •the heirs, executors, legal representatives, successors and assigns of the parties hereto; .but no change of ownership of a part of the land, or partition thereof, shall impose any additional obligation on the Lessee. Any change of ownership of a part of the land whether effected by conveyance, will, inheritance, partition, or otherwise shall entitle the new owner to the rentals and all royalties accruing f)'om operations on his segregated tract unless otherwise provided in the transfer ; provided, the Lessee shall not be held responsible for the payment of such rentals or royalties to such new owner unless and until the Lessee shall be furnished with the instrument of transfer, or a duly certified copy thereof, and in case of no.transfer in writing, with legally sufficient evidence thereof.”

(c) On the 18th of March, 1922, L. Q. Van Deventer joined his mother and his sister, Mrs. Mahavier (Mr. Mahavier was not a party) in' executing to Mrs. Nonie- O’Brien an option contract to purchase 72½ acres of the 120 acres in controversy. This contract was ’as follows:

“Received, of Nonie O’Brien, vendee — the sum of one' hundred (100) dollars in part payment — for that certain tract or parcel of land out of the Van Deventer tract in the Da,yid Minchey. League, Liberty County, Texas, bej-ing out of the North half of said tract, morp fully described as follows: .
“Seventy-two and one half acres of lahd-bO-ginningat the north east corner of-the Frederick Antoine tract, thence west with ' the north line of ;the said Antoine tract/to the Southeast corner of-the tract purchased'from Mrs. Van Deventer by E. E. Townes.-:
■ “Thence north with' Townes’ east line to the north line of the Van Deventer. ■ '■
“Thence, east with' the 'north line of the Van Deventer to' the northeast corner. '' '
“Thence south with the east line. of’ the Van Deventer to a point in the. said east line, from which a line, drawn west to the.place .of beginning, would include half of 'the Van De-venter tract. - .... . ,," .
“This.day sold, .said.Nonie-O’Brien for the purchase price of Seventeen Thousand./.fiye Hundred Dollars ($17,500).
“It is understood and agreed ttat the above described tract may be divided into three (3) nearly equal blocks or lots, numbered respectively from West to East one, two and three and we agree to deliver a good and sufficient warranty deed to each lot on the following terms: To Lot No. One (1) on or before ten days from date upon a cash payment of Seven Thousand Eive Hundred ($7,-500) dollars, including the consideration, this day paid. To Lot Two (2) on or before fifteen days from date, upon a cash payment of six thousand and two hundred and fifty (6250.00) dollars. And to lot three (3), on or before thirty days from date upon a cash payment of Three Thousand Seven Hundred and Fifty ($3750.00) Dollars. Said money to be paid into some bank agreed upon by vendor and vendee. Failure to make said three payments or either of them, as stated, shall terminate this contract.
“This sale is conditioned upon an authentic abstract, furnished by vendor, showing a good title to the property, and should the title to said property prove not good and cannot be made good within a reasonable time, not to exceed thirty days from the date hereof, then we obligate ourselves to return said One Hundred Dollars now paid upon the return and cancellation of this receipt.
“It is understood that the above described property is encumbered by an oil lease, and it is hereby agreed that purchaser waives all right to collect rental on said lease but that so long as said lease remains in force the rental shall be collected by the undersigned.
“Whereunto we set our hands this 18th day of March, A. D. 1022.
“Martha Van Deventer
“L. Q. Van Deventer
“Mrs. Chas. Mahavier.”

Mrs. O’Brien paid L. Q. Van Deventer, his mother and sister, $100 cash for the option contract. In part execution of this contract L. Q. Van Deventer, his mother and sister, joined by her husband, for the cash consideration of $7,500 to them in hand paid -by' Higgins Oil & Fuel Company, conveyed to the Higgins Oil & Fuel Company by warranty deed 25 acres of land covered by the option contract. The material portions of this deed are as follows:

“To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Higgins Oil & Fuel Company,' its successors and assigns, forever. This conveyancers made subject to that certain oil, gas and mineral lease of date the 19th day of January, A. D. 1920, to Gulf Production Company, of record in Vol. 92, page 522, of the deed records of Liberty County, Texas, in so far as same affects property herein described.
“But it is understood that this conveyance carries such royalties as may be earned from the production of oil, gas or other minerals by virtue of said lease, in so far as it covers the property herein described, however, in the event of a production of oil from said premises under said lease it is understood that the royalty interest to be received by grantee is the royalty from oil produced from the premises herein described, so far as same is under lease, and that the grantee shall have no interest by reason of this conveyance in any royalty from oil or other minerals produced from lands not herein described although the same may be included in the lease affecting any of the minerals and premises herein conveyed, it being the intention of this conveyance to convey, assign and transfer unto said Higgins Oil & Fuel Company, in fee simple the land herein described and the oil and mineral royalties produced under said existing lease from the land herein described. Delay rentals, if any, hereinafter coming due under said lease shall not belong to grantee.
“We do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular said premises unto said Higgins Oil & Fuel Company, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

(d) The consideration for this deed was paid to Mrs. Van Deventer and given by her to L. Q. Van Deventer and her daughter in equal portions. She also gave to them at various times portions of the lease money received by her from appellee. Explaining this payment to her children, Mrs. Van Deventer testified as follows, this excerpt of her testimony being taken from appellants’ brief: “ * ⅜ * j just used that money like I would any other money that belonged to me, gave it to them or bought what I wanted to, just used it like I would any other money that I had, did whatever I pleased with it. I gave money to the children because they had an interest in the place.”

Appellants advance the following argument supporting their contention that the facts summarized do not constitute a ratification against L. Q. Van Deventer:

“The argument of appellee is that this deed amounts to a ratification because of the reference therein to the lease of January 19th, 1920. First, it may be said that the language of this reference itself makes it plain that the lease was regarded as not applying to the whole of the property being conveyed or to the undivided interests in the entire tract of all of the grantors who joined in the Higgins Company deed. When writing into this deed the provisions that ‘this conveyance is made subject to. that certain oil,, gas and mineral lease of date the 19th of January, 1920, the Gulf Production Company of record in Vol. 92, page 522, * * * in so far as same affects property herein described,’ and that ‘it is understood that this conveyance carries such royalties as may be earned from the production of oil, gas or other minerals by virtue of said.lease, in so far as it covers the property herein described,’ and also that ‘it is understood that the royalty interest to be received by the grantee is the royalty from oil produced from the premises hereto described, so far as same is under lease,’ the parties to the deed very clearly indicated that the lease referred to did not apply to or cover the whole of the tract of land conveyed by the deed. The words ‘in so far as same affects,’ ‘in so far as it covers’ and ‘so far as same is under lease’, can mean only that the land being sold is subject to and covered by the lease to a partial or limited extent only. And it will be noted that the parties to the deed were careful to repeat the same limitation, by the use of words but slightly differing, three separate times in the deed, that is, when writing therein.each recital which refers to the lease. In short, it is patent that the intent and effect of the Higgins deed, when tested by its own unambiguous terms, was to convey to the Higgins Company the definitely described 25 acres out of the Van Deventer tract, with only some portion or portions thereof, or some undivided interest therein, subject to and covered by the lease of January 19th, 1920. It is obvious that the undivided interest of L. Q..Van Deventer was not ‘under lease’ or ‘covered by the lease,’ because he did not execute the lease. * * * The lease did encumber the property to the extent of Mrs. Van Deventer’s undivided interest therein, and on the face of it as to Mrs. Mahavier’s interest also. They were the two owners who had signed the lease as lessors, and this option no doubt meant that said two persons, as-lessors, were to continue to collect the rental which the Gulf Company was paying under the lease. After this option receipt was signed, the three parties signing it did not follow any definite course with reference to the rental from the course pursued by them before signing this option. All rental payments which matured prior to the date of this option were paid by the Gulf Company to Mrs. Van Deventer and Mr. and Mrs. Mahavier, and all payments maturing after that date were made to the same three persons. L. Q. Van Deventer at no time, either before or after he signed this option receipt, ever claimed any portion of this rental money nor did he ever receive or receipt for any of it'. From the terms of the option itself, as well as the conduct of the three persons who signed it, it .is obvious that they were not, as among themselves or as between any two of them, concerned about or attempting to affect any right, or to change any settled status, relative to their undivided interests in this jointly owned tract of land which was, to the extent of Mrs. Van Deventer’s interest, subject to the lease executed to the Gulf Company by her on January 19th, 1920. Therefore, the recital that the land was subject to such lease was correct, but how far subject to it the option did not undertake to say. This option was needed for a temporary use only, and not intended for record or ever filed. It was, to an extent, superseded by the Higgins Company deed, into which the express provisions were written that specifically set forth the purpose and intention of the parties, and thereby we are informed just how far and to what extent the land they were dealing with was subject to and covered by the. then existing lease held by the Gulf Company.
“ * * ⅜ This deed also contains an additional provision reading: ‘It being the intention of this conveyance to convey, assign and transfer unto said Higgins Oil & Fuel Company, in fee simple, the land herein described and the oil and mineral royalty produced under said existing lease from the land herein described.’ When these recitals, or the portions or paragraphs of the Higgins deed wherein they appear, are considered as a whole, it is clear that the parties to this deed understood that the ‘existing lease’ did not apply to or cover all the undivided interests of the three persons who jointly owned the Van Deventer tract and that, therefore, in selling 25 acres out of said tract to the Higgins Company, it could acquire by the deed only such a royalty interest as could arise under the lease, that is, only to the extent and insofar as the 25 acre tract, as well as the whole Van Deventer tract, was subject to the existing lease. The qualifying expressions-‘insofar as same affects property herein described,’ and ‘insofar as it covers the property herein described,’ also ‘the royalty interest to be received by grantee is the royalty from oil produced from the premises hereto described, so far as same is under lease,’ can mean only that every undivided interest in the Van Deventer tract and in the 25 acres thereof being sold to the Higgins Company, was not subject to said lease, and that, therefore, the grantors were conveying a royalty interest in the 25 acre tract described in said deed only to the extent and ‘insofar as’ said lease covered said land, or ‘so far as same is under lease.’ ”

This argument is not sound. The plain import of the language, both of the option (agreement and of the Higgins Oil & Fuel Company deed, was that: First, the 72½ acres were to be sold subject to the lease in question, which purported to convey all the interest in the land. For this ratification of the lease by L. Q. Van Deventer as against his one-sixth of .the 72½ acres of land, as well as •for the other privileges of-, the option, Mrs. O’Brien paid the grantors $100. We-say this because there was nothing in the option contract-to suggest that L. Q. Van Deventer was reserving his one-sixth interest as against the lease nor that he was selling his one-sixth interest to Mrs. O’Brien free of the lease; but by plain language it was the intention of the contract that she should take the land burdened by the lease in all respects as the lease was written. No construction can be given •the option contract except that as to the 72½ acres of land L. Q. Van Deventer, for a valuable consideration to him paid, adopted it in all its terms. Second, the same construction must be given the language of the warranty deed in which he joined to the Higgins Oil & Fuel Company. Also, we have the additional fact that on the testimony of his mother he received from her a part of the proceeds of the sale of the 25 acres of land as well as the other lease money, to quote her language, because her children “had ,an interest in the place.” Of course, L. Q. Van Deventer had an interest in the 72½ acres of land and the 25 acres of land, but he had no interest in the lease mqney except on the theory of ratification, Appellants cannot say that L. Q. Van Deventer joined in the deed to the 25 acres, reserving his interest from the lease-and conveying his interest to Higgins Oil & Fuel Company free of the lease, thereby burdening the 25 acres- of land, as between Higgins Oil & Fuel Company and. appellee, only with the lease as it related to the interest of his mother-and sister. Such, a construction gives effect neither to the language of the deed nor of the 'option nor of the lease. , These instruments made the deed subject to the lease as •written which, by its express language, covered, all the interest in the 25 acres. Every .circumstance in the case supports the plain .import of the language-of the deed. Thus, at ;tke, time’the warranty deed was executed-to-•Higgins Oil & Fuel Company, if L. Q. Van Deventer was not. a party to the lease executed by h'is mother and -sister, his undivided one-sixth interest- was .much more valuable than his sister’s interest. All she -could convey •was her royalty, interest in the oil,, while L. Q. .Van; Deventer, could- convey his. oil interest .wi^th an unclouded’title.' Vet, in dividing the proceeds-of-this sale, he got one-half and his s'iste^.one.-half, with no explanation as,to the .division. The only conclusion to be drawn is that he. and his another and sister thought his interest .was equal with that of his sister. On.the theory of ratification it was equal; but ¾⅛ the'ratification it was not equal. Again, it ’was expressly: provided in the-option co-n-'tráct “the-rental shall be collected by.the un-'dér'sign'ed:” ’ E. Q. Van Deventer-was one of “the undersigned.”' " ■ • ;

. As a joint tenant with.his mother and •sister he had the right to share .in the -proceeds-of-the lease, as the lease .was .written; ■that is to .say;: since his mo.ther.'.and sister ■purported-'to lease alt the, land; .he had the right to ratify the leáse and. then share in, the •consideration paid therefor. This he did:,by the piain-.language-of-.the option ¡contract just quoted. The principles announced in Texas & P. Coal & Oil Co. v. Kirtley (Tex. Civ. App.) 288 S.W. 619, 623, sustain our conclusion that the facts of this ease constitute ratification, as a matter of law, against L. Q. Van De-venter. In that case a tenant in common, who had not joined in the execution of the lease in question, did join in executing certain orders for the division of the royalty interest. Construing these orders, it was held that this tenant in common had ratified the lease in question. Discussing the issue of ratification, the court said:

“But if we have not misunderstood the law relating to tenancy in common, it is the. rule that where one tenant in common conveys the whole of the property that other tenants in common who ratify or acquiesce are es-topped to deny the validity of the conveyance so ratified. ' In 38 Cyc. title Tenancy in Common, p. 106, the rule is stated:
“ ‘Tenants in Common, being owners of several interests, may ratify the acts of each other and acquiesce therein; and generally such ratification or acquiescence with full knowledge of material facts is effective; and after such ratification or estoppel, or after .such ratification or acquiescence the ratifying-parties and their grantees are estopped from denying the effect thereof.’
. “As supporting this-text a large number of eases from different jurisdictions are cited.' Most of them relate .to the ratification by one tenant in common of the. deed of his coten-ant eonveying-a specific parcel of the common property and holding that where such a deed is ratified by a tenant in common he is bound thereby. On page 111 of the same volume of Oye. as cited last above, there is a further statement: - . ..
“ ‘An unauthorized sale or conveyance of the whole property by one tenant in common may be ratified by the others. The noncon-senting.tenant may be estopped fr-om denying ¡the passage of title to the vendee if he does any act to ratify .or confirm.,the sale,’
“In Tiffany, ón Real Property, vol. l,-p. -682, it is said:
‘A conveyance by á cptenant of a specific portion of the land may, it has been frequently stated; be validated by a ratification thereof by the other cotenanfe. Id so far as this 'means that in States in which -a- conveyance by a cotenant of' his' undivided interest ‘in á specific tract of-land is órdifiarily -invalid as against the other cotenants, it is valid even as against them in ease they acquiesce therein, it appears to be a reasonable qualification 'of the doctrine.’ : - ■-
“To the same effect is the rule as stated' in '7 R. O. L. §£ 72, 75 and 77, pp. 877, 879, and 882..
’“In section 75, it is there said:
, “.‘A joint tenant or tenants in.common cannot sell, the whole common property without the authority of his cotenants; for he has no implied authority to dispose of his cotenant’s interest in the common property and any attempt on his part to do so is ineffectual. In case of such a sale a nonassenting tenant has two courses open to him. He may treat the attempted sale of his interest as annulled, and if the grantee refuses to admit him to possession of the premises may bring ejectment and recover such possession, or he may at his election affirm.what has been done; and treat the money received for his interest as money received to his use.’ * * *
“If one tenant in common assumes to deal with the whole property and to convey the whole of the common property, then his co-tenant should certainly have the right to ratify the sale of the property and claim his share of the profits arising from the sale. Further complaint is made of the holding because the opinion acquiesces in the trial court’s conclusion of fact that there was no prejudice to appellant and that we have in effect applied the doctrine of estoppel while agreeing with the trial court that one of the main elements was lacking. Ratification is a species of estoppel, and where an act of another has been ratified by the complaining party, the ratifying party is estopped to deny the effect of the act which he has ratified, but change of position is not an essential element of ratification as is required in the application of the rule. of estoppel in pais. What we mean to say is that, the uncontra-dicted facts showing ratification, appellees are thereby estopped to deny the effect of the last lease executed by the Hills and that as relates to this matter prejudice or change of position is not required.”

We think the language of the option con-, tract, “the rental shall • be collected by the undersigned,-” brings this case clearly within, the construction given the division orders in .the case just quoted.

■ For the reasons stated the judgment of the lower, court is reformed-and affirmed as it relates to Mrs. Martha Van Deventer and Mrs. Mahayier, and reversed and. rendered as it relates to L. Q. Van Deventer on the issues of damages because of the trespass, but affirmed on the issue of titl§.

Affirmed in part; reformed and affirmed in part; reversed and rendered in part; '. .

On Rehearing.

Qn request of appellants, we make the following additional conclusions of fact:

(a) We quote as follows from the lease:

“That we; Martha Van Deventer, a widow, Chas. Mahavier and his wife, Mrs. Nena Ma-havier, of Matagorda County, Texas, herein! after called ‘Lessor’ (whether one or more) have and by these presents do- hereby lease unto the' Gulf‘Production Company, 'hereinafter styled ‘Lessee,’ the tract of land-hereinafter described, with the right- of .exploiting the same for, and of producing minerals therefrom, and to that end also grant the exclusive right of drilling and operating thereon for oil, gas, or other minerals, together with rights of way for and the right to lay pipe lines to convey water, oil, steam and' gas, and the right to have and use sufficient water, oil, gas and coal from the premises to drill and operate any wells that lessee may bore, or shaft lessee may exea vate,, or in treating, so as to make merchantable, any of such minerals, and also such other privileges as p.re reasonably requisite for the conduct of said operations and the right to remove at any time from said premises any and all property which may have -been placed thereon by said lessee.
“The said premises as to which this instrument applies are situated in Liberty County, State of Texas, and are described as follows:
“Being the East 145 acres out of 225 acres tract of land out of the David Minchey League, Abstract No. 85, on the East bank of the Trinity River, being all of the land now owned by grantor, in said League, and being all of the 225 acre tract aforesaid except the West 80 acres thereof, heretofore sold by grantor to E. W. Towns for T. A. R. Oil Company.
“To have and to hold, unto the said Lessee, the Gulf Production Company, its successors and assigns, for the term and under the pro? visions -as follows, to-wit:
* * * Provided if the Lessor shall own less than the entirety of the premises, royalty shall be paid only in the proportion that his ownership is of the whole.”

(b)' We make the following additional quo? tations from the testimony of Mrs. Van De-venter,'‘as summarized ¡by appellants in their brief! ' " •

“The whole of Mrs. Van Deventer’s testimony telating to' all of this money, both the cash bonus and the delay rental, is as follows: T used the money that I got on the first lease and this second lease, and whenever--1 thought it was necessary,- and they needed it, I gave some of it to 'Btid and Nena, I do not need money very much: That is'all'I need-that money for, is to help support myseif and help support my'children.’ Then on ¿ross-examiñai tion she said:,; T just gave that money like I would any cither money that belonged to me; gave to them or bought-what I wanted toi just hse it like I would any ''other- money that I had,- did whatever I pleased'with it. I gave money’to the- children-because they had an interest in- the place.’ When; testifying by deposition, in May, 1925, Mrs.-Van Deventer was asked how much-Townes gave-her for the lease executed to him, and she answered that she had- forgotten; ■ then the next, question was,- ‘Did-you divide that money with Miss Nena?’ She- answered:-T used.it for. my. own purpose.’. And-ibeing asked abput. such, state; ments at tlie trial hereof, she answered: ‘My memory was fresher then than it was (is) now. That is the purpose I used it for; that is the purpose I had '-it for, myself and my children.’ ”

(c) Mrs. Van Deventer, in her testimony, made no mention “of the proceeds of the sale of the twenty-five acres of land.” .

(d) Quoting from appellants’ supplemental argument on rehearing: “The only testimony regarding that $7500.00 payment was given by L. Q. Van Deventer, and his undisputed testimony is that ‘the reason I needed so much money at that time was because I was fixing to get married. I did get married and built my'home.’ And, further, that his mother ‘received all of the consideration mentioned in the deed that we made to the Higgins Oil & Fuel Company. That was paid to her. She gave me half, and Nena Mahavier half.’ ”

If we have said anything in our original opinion conflicting with conclusions (c) and (d), the same is hereby withdrawn.

(e) On page S3 of their original brief, appellants inserted the following note: “Note: In discussing the succeeding propositions, we will, at times, be dealing with the rights of Mrs. Blahavier as affected by the judgment which the court has rendered upon the theory that Mrs. Mahavier ratified the lease. But in all that we may say, it must be understood that BIrs. Mahavier is still insisting upon the contention, as pleaded by her, that the lease as to her -is null and void, and that she does not acquiesce in the court’s holding that she.ratified the lease, but that holding she continues to insist is erroneous, and, as stated, everything. hereinafter said with reference to her rights under the lease is intended to be and must be considered as being within the purview and protection of her alternative plea.” The quotation from appellants’ brief given in our original opinion, summarizing certain facts regarding Mrs. Biahavier’s attack on her lease, was taken from pages 371 and 372 of her brief. Because this quotation followed her “note,” she now insists “that the court had no right to, make any use of the quoted extract in holding against Mrs. Mahavier on her claim for damages because of the wrongful and unwarranted entry upon her interest i,n this land.” We did not make this quotation seeking to bind Mrs. Mahavier by an alternative proposition of law, but, as the quotation contained an unqualified admission of certain facts, we accepted it as such and attempted to construe the legal effect of such facts as an original proposition and not, as we have just said, upon the theory of an alternative proposition advanced by Mrs. Ma-havier.

Appellants assign-error against our refusal to reverse the judgment of the lower court and to remand the cause for a new trial upon their issues relating to “the wedge.” Appel-lee pleaded that “the wedge” was included in the lease by mutual mistake. The evidence sustained this pleading as a matter of law. Because the issue of mistake was presented by appellee as “strictly a defensive pleading and affirmative action was sought on that plea,” appellee insisted in its original -brief, filed herein, that the trial court correctly excluded “the wedge” from the lease, even after it had been exploited for oil. In support of this plea appellee cited Mason v. Peterson (Tex. Com. App.) 250 S. W. 142, and Moore v. Hazelwood, 67 Tex. 624, 4 S. W. 215. We overruled this proposition on the theory that appellee could not release ‘The wedge” from its lease without compensating appellants for the damages done thereto; and on the theory that the verdict of the jury correctly estimated the damages done to “the wedge,” we reformed the judgment of the lower court by giving Mrs. Van Deventer and Mrs. Blahavier compensation for the drainage. Appellants now insist that the judgment, as reformed in their favor, does not afford them full compensation. We think the following quotations from their original brief fully answer this contention, and sustain our conclusion that the judgment rendered by. us does full equity between the parties. Appellants said:

“And even though it may be said that the plea of mutual mistake was simply urged in defense, relief of an equitable nature was sought thereby and could be granted only on condition that the lessee should first place the lessors in statu quo. And to do that, the trial court, on giving effect to defendant’s plea of mutual mistake, should have rendered judgment in favor of the plaintiffs, Mrs. Van De-venter and Mrs. Mahavier, against the Gulf Production Company, for the value of their proper proportionate share of the oil drained by defendant from under their land.
« ⅜ ⅞ * As we have seen, the total drainage, as found by the jury, from under the whole Van Deventer tract, inclusive of the wedge, was 88,743 barrels of oil, and of this amount 13,800 barrels were drained through Antoine No. 1, and 74,943 barrels through Antoine No. 3 and Duessen No. 11. Therefore, in order to place these two plaintiffs in statii quo, the judgment in their favor because of such drainage should have been calculated upon this basis.
“ ⅝ ⅝ * Hence, the judgment in favor of Mrs. Van Deventer upon this drainage account, instead of being for only the sum • of $1,725.00, the amount for which the court did render judgment in her favor, should have been $11,092.50. Mrs. Mahavier’s interest was one-sixth of one-eighth, or one forty-eighth, this being one-fourth as much as her mother was entitled to, therefore the amount due her was $2,773.12.
“ ⅜ * * All this helps to make it clear that the appellants are not desirous of inflictIng an injustice on the appellee company, but only ask that said company be held responsible for its own wilful misconduct, and upon the count we are now discussing, we submit that if the trial court in any event, was authorized to hold that the wedge strip was embraced within the lease-as the result of a mutual mistake, it should further have held that said strip cannot at this late day be excluded from the lease without first placing Mrs. Yan Deventer and Mrs. Mahavier in sta-tu quo, and therefore, in that event, they would be entitled to judgment against appellee calculated upon the total drainage as found by the jury, in the respective amounts herein-above shown, that is, Mrs. Van Deventer for the sum of $11,092.50 and Mrs. Mahavier for the sum of $2,773.12.”

Again, we say it is not our intention, by thus quoting from appellants’ brief, to bind them by an alternative proposition, but, as these quotations purport to state the equities of this case, and we think correctly summarize the law, we simply adopt them as an answer to appellants’ assignments under discussion. In United States & Mexican Trust Co. v. Delaware W. Construction Co., 112 S. W. 447, at page 461, speaking for the Texarkana Court of Civil Appeals, Judge Hodges said: “No. principle is better settled than that he who would escape the rigors of the law, by a resort to equity, must not himself invoke the rules from which he flees.”

Concluding this opinion on rehearing, it is proper to say that we have given the • most painstaking consideration to appellants’ many interesting assignments against our opinion. We heard the motion for rehearing on oral argument, and appellants have supported their motion by two able and interesting written arguments. Having carefully reviewed these propositions, and checked them against what we have said in our original opinion, we cannot escape the conclusion that we have correctly disposed of this case. The motion for rehearing is, therefore, in all things overruled.

HIGHTOWER., C. J.

I agree with the conclusion reached by Judge WALKER, that appellants’ motion for rehearing should be overruled. I have no doubt of the correctness of our holding on any point save the contention made by appellant L. Q. Van Deventer that we were in error in holding that his record shows, as a matter of law, that he ratified the mineral lease executed by his mother and sister to the. Gulf Production Company, dated January 19,1920. As to this contention, the exhaustive - and strong written argument presented by counsel for the motion has caused some doubt.- In the light of this argument, I have again reviewed the record, and still conclude that our original opinion on this point was correct.


source: Caselaw Access Project

author: BUCK, J.'

license: Public Domain

text:
    LOGAN et al. v. HUNT.
    No. 12537.
    Court of Civil Appeals of Texas. Fort Worth.
    July 18, 1931.
    Rehearing Denied Sept. 19, 1931.
    Taylor, Muse & Taylor, of Wichita Falls, for appellants.
    E. G.' Thornton, of Olney, for appellee.
   BUCK, J.'

Mrs. Maud Logan, joined by her husband, R. A. Logan, Miss Nell Rayburn, a feme sole, Ola Smith, joined by her husband, Clint Smith, Walter Rayburn, and Lore Rayburn, the latter a minor suing in the name of her mother, Mrs. Dora Jenkins, sued E. W. Hunt in trespass to try title, alleging that the father of the plaintiffs, W. O. Rayburn, departed this life about June 8, 1929, and was possessed of 80 acres of land out of the T. E. & L. Co. survey No. 1366, abstract No. 856, being the east one-half of the west one-half part of said survey, fully described in a deed recorded in volume 86, page 291, of the Deed Records of Young county.

It was further alleged that Mrs. W. O. Rayburn, the first wife of the deceased, and the mother of all of the plaintiffs except Lore Rayburn, owns the west one-half of the west one-half part of said survey; that W. O. Rayburn died intestate, and that, under the statute of descent and distribution, the 80 acres of land owned by him at and prior to the time of his death descended to his children ; that there is no administration pending upon the estate of W. O. Rayburn, and none is necessary. '

In a rather lengthy pleading, the plaintiffs set up their cause of action.

The defendant answered the petition by a general denial, and further pleaded that W. O. Rayburn, at the time of the execution of said deed, was mentally capable of knowing and understanding his business affairs. The plaintiffs had alleged that he was at said time mentally incapable of understanding the nature and purport of the deeds, and was incapable of realizing or understanding that he was acknowledging a deed conveying his 80 acres of land to defendant, E. W. Hunt.

E. W. Hunt filed several pages of exceptions to plaintiffs’ petition, but, since the case was not determined by said' exceptions, they will not be further noticed.

The court, áfter defining mental capacity, submitted the case on one issue, which, together \vith its answer, is as follows: “At the time of the execution of the deed in controversy, on September 27, 1920, by W. O. Rayburn to E. W. Hunt, did the said W.' O. Rayburn have mental capacity, as that term has been explained above, to execute said deed? Answer: Yes.”

Upon this verdict the court rendered judgment for defendant, and plaintiffs' have appealed.

Opinion.

•There 'were some 25 witnesses • who testified, and only Mrs. Rayburn, the former wife of W. O. Rayburn, ..and perhaps Dr. O..W. Castner, and perhaps one or two others, testified to any circumstances or facts tending to show that W. ,p. Rayburn at the time of the execution of the deed was of unsound mind. The other witnesses testified that in their opinion at the time of the execution of the deed W. O. Rayburn was of sound mind. According to the testimony of E. W. Hunt, and the agents of said E. W. Hunt, to wit, A. A.’ Cooper and J. J. Egan, who were instrumental in selling the land and effecting the trade,-Rayburn came to the agents' and ¿sked them if Mr. Hunt would not sell him some land he owned in Knox county and take his 80 acres in as a part payment.' . Upon, being. approached, Mr. Hunt at first refused to entertain the trade, but, at the insistence of Rayburn and of Cooper and Egan, he finally consented to' sell Rayburn 400 acres of the Knox county land at $60 an acre, and take •in thé 80 acres of land then owned by Rayburn as part payment. Mr. 'and Mrs. Rayburn had been divorced some time before this transaction, and had divided their effects, and Mrs. Rayburn owned 80 acres of the 160-acre tract which had theretofore, been their homestead. Mr. Rayburn had subsequently married again, perhaps after he moved to Knox county. He was tried fo'r lunacy in the county court of Young county perhaps after he had secured a divorce from Mrs.' Rayburn, on April 6, 1920, and the jury failed to agree, and subsequently the lunacy case was dismissed. Some time before the death of W. O. Rayburn, he was confined in the insane asylum located at Wichita Ealls, and died there.,

Appellant groups propositions 1, 2, 3, and 4, which complain of the action of the trial court in sustaining the exceptions to certain evidence. The plaintiffs below introduced the deposition of Dr. C. W. Castner, who was superintendent of the Wichita Ealls State Hospital during the time that W. O. Rayburn was confined there. The questions asked him, to which ■ objections were sustained, on the ground (a) because the questions and answers were wholly irrelevant and immaterial, and (b) because too remote, and because prejudicial to the rights of defendant, were concerning the histdry of W. O. Rayburn related or .told to Dr. Castner at the time of Rayburn’s entrance into the state institution. The question asked, as complained of in exception No. 1, was: “State whether or not' you had an occasion to go into the history of W. O. Rayburn at the time he was. committed to the Wichita Insane Hospital, if you have said, he was. if yea, please, state as nearly as you can a complete -history ¿f W. O. Rayburn with refer7 ence to his condition at the time he was received, as well as any. statement, if' any he made, as to his prior . life and condition. Please answer fully.” .

It is urged that the witness, if- permitted, would have answered: “I did-have occasion to go into his history, same being the'records as furnished by' the Court of Eoard‘ County, which included the medical testimony of two physicians who had attended him. Question and answer of the court which was a matj ter of the record and having been present when mental examination 'was made of the patient taking part in -this examination and also having observed him from time to time, I dp not recall that we obtained much personal history from the patient' himself.”

In the first place, we believe'the testimony is objectionable, on the ground of being hearsay, but no complaint is made on that ground. Tbe witness was not asked a hypothetical question, but was asked to relate the history of Rayburn as shown by the record in the trial court of Foard county, where he was adjudged insane. This trial was had some time shortly after March 17, 1926, some six years subsequent to the time when the deceased had executed the deed which the suit sought to set aside. We are inclined to think that the time inquired about was-too remote from the time the deed was executed to make pertinent any inquiries about the condition of the deceased at the time inquired about, some six years after the deed was executed. A man might be insane in 1926, and yet be of sound mind in 1920.

In 14 R. O. L. p. 620, it is said: “It is obvious that, when a deed, will, contract or other act is called in question by reason of the mental condition of a party to the same, the sanity or insanity of such person at the time when he acted is the issue before the court and if it be proved that he was sane at 'that time, his previous or subsequent mental condition is immaterial. It is, however, well settled that it is permissible to receive evidence as to the condition of the person’s 'mind both before and for a reasonable period after that time, as tending to show his mfen-tal condition at the time in question. Whether the acts or declarations are sufficiently near in point of time to warrant their being submitted to the jury, as tending to show his mental condition when he did some act which is questioned on the ground of his incapacity, rests chiefly in the discretion of the presiding judge.”

In Morris v. Stanford, 295 S. W. 347, 349, the Dallas Court of Civil Appeals, in an opinion by Chief Justice Jones, said: “In proving mental-incapacity, much latitude is necessarily allowed, and the evidence is not confined to the very day of the transaction -in issue, but it must be so related to such day in point of time that it- will tend to establish the fact that on the day of the contested transaction there existed the mental incapacity. If mental incapacity existed 'for a pe-alad not too remote from the day in question, evidence of such fact is admissible, not primarily to establish incapacity of such time previous to the transaction, but as a fact tending' to prove 'that incapacity existed on the date of the- inquiry.” ■

In Jackson v. Watson, 10 S.W.(2d) 977, 980, by the Commission of Appeals, approved by •the Supreme Court,- in an opinion by Justice Xeddy,-it is said:- “It-is weil settled that it is permissible to receive evidence as- to the condition of a person’s mind. both before and .for a reasonable period after as tending to show his-mental'condition at the time in question” —citing. :cases.

"The, opinion'further says:

We think the correct rule on this subject was announced by the Court of Civil Appeals which decided this case in the case of Caddell v. Caddell, 62 Tex. Civ. App. 461, 131 S. W. 432. In discussing a similar question the court said:
“ ‘It is true that, if the portion of the Notary’s evidence objected to be stricken out, there remains no direct testimony that on the very day of the execution of the deed deceased was insane. But the Court was authorized to consider the proof of the mental and physical condition of the grantor both before and after the execution of the deed, as we must assume he did, in determining the condition of the mind of the grantor at the time of the execution of the deed. And this proof is sufficient to support the finding of general imbecility and mental incapacity continuing all during the period before the execution of the deed and until the grantor’s death after-wards.’ ”

In Caddell v. Caddell, supra, it was shown that the grantor died in about two months after the execution of the instrument in question. We certainly think that the evidence was admissible to show that the grantor was of unsound mind two months after the execution of the deed. We overrule this assignment, and also other assignments directed to the exclusion of the, testimony offered in the deposition of Dr. Castner. Certain parts of the deposition of Dr. Castner were admitted in which he stated his experience ■with insanity, and further stated:

“From the history that I received from W. O. Rayburn or from other sources,- when he was received into the insane hospital in addition to the fact that in 1918 he was charged with and tried for lunacy, the jury having hung upon the trial, that during the years 1919, 1920, 1921, 1922, 1923, 1924 and 1925, he was always - talking about his property rights and that people were trying to defraud him out of his property rights, tqgether with the fact that he would sleep at night with an open knife under his pillow, saying that people were going to kill- him, together with the further, fact that he would load a .target and stand with it in his hand saying that people were trying to .get rid of him, together with the further fact that he had a will written and took it to a man by the name of Brown and told him that as quick as he died to be sure and have the will placed - of record because the people were .going to throw him in a lake just as soon as he died and that he wanted the will of record, together with the further fact that he went to a place and paid his board for one month in advance and would 'go, to other places and stay at other places. That all of this happen-fed between, the years of 1919 and 1924 and most ’of it happening during the year 1920. Basing my opinion upon the for.eg.oing facts or statements, it is my opinion that he was of unsound mind. * * ⅜
“I did not know Mr. Rayburn prior to October 1, 1920, neither did I know him prior to the year 1926. I am only giving my opinion as to whether or not Mr. Rayburn was not mentally capable on or about October 1, 1920, of understanding his property right and knowing the effect of a deed. Taking the history of his case, it is my opinion that he was insane and probably could not understand about his property rights in 1920. The duration of manic depressive insanity has no special limits of duration and especially so in this case. My opinion being based on the history being dated as far back as 1918.”

We think that in this testimony, admitted without objection, Dr. Castner had an opportunity to state his opinion as to whether or not Rayburn was insane at the time of the execution of the deed. We overrule assignments 1, 2, 3, and 4, all of which have reference to the exclusion of certain testimony by this witness.

The trial court instructed the jury as follows: “You are instructed in this case that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence to your satisfaction, the negative of the above special issue and if plaintiffs have not discharged this burden your answer will be in the affirmative.”

The plaintiffs below did not object to the addition of the words “to your satisfaction” in this charge, and we are of the opinion that while, as held in many cases, such as Carl v. Settegast, 237 S. W. 238, by the Commission of Appeals, and approved by the Supreme Court, it is error for the trial court to add any words in the definition of burden of proof, such as “clearly,” “to your satisfaction,” etc., we do not believe that such erroneous charge constitutes fundamental error. As to the cases holding that an instruction requiring a jury to be “satisfied,” or to find “to their satisfaction,” see Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061; Seligmann v. L. Greif & Bro. (Tex. Civ. App.) 109 S. W. 214; Green v. Kegans, 54 Tex. Civ. App. 237, 118 S. W. 173; Terrell Wholesale Grocery Co. v. Christian Peper Tobacco Co. (Tex. Civ. App.) 120 S. W. 565; Fraser-Johnson Buick Co. v. Baird, 60 Tex. Civ. App. 538, 128 S. W. 460. But we have been cited to no case, and have found none, holding that such error constitutes fundamental error, ahd should be considered in the absence of an objection in the court below. Therefore, this assignment is overruled.

The seventh proposition complains of the action of the trial court in overruling the motion for new trial, and especially that part of said motion setting up claimed newly discovered evidence. Attached to the motion for new trial was the affidavit of W. F. Frady, who made an affidavit that he was a farmer and has resided in Young county for many years; that he was well acquainted with W. O. Rayburn during the year 1920, as well as prior and subsequent thereto; that he was a brother-in-law to Rayburn and associated with h'im during said year of 1920 and was on good terms with him; that the said W. O. Rayburn on numerous occasions during the year 1920 told him that people were jumping on the running board of his car trying to kill him, and that he would go over and over said statements and repeat them to affiant often; that Rayburn also told affiant when affiant’s children were playing around and on the barn of W. O. Rayburn that they were tearing up his barn; that he believed that something was wrong with W. O. Rayburn and that he would kill himself and that something ought to be done with him.

We are of the opinion that this evidence is merely cumulative of similar evidence given on the trial. Therefore the assignment is •overruled.

We have examined other assignments, but find no error. Therefore the judgment of the trial court is in all things affirmed.


author: WALKER, J.

text:
    REEDY v. JONES et al.
    No. 2101.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 3, 1931.
    Rehearing Denied Sept. 23, 1931.

      0. M. Kay, of Houston, and B. C. Johnson, of Port Arthur, for appellant.
    J. Y. Meek and Fred W. Moore, both of Houston, for appellees.
   WALKER, J.

This appeal was to the Galveston Court of Civil Appeals, but transferred to this court by the- Supreme Court. Annie Jones, appel-lee, wife of Ed Jones, deceased, filed this suit in the district court of Harris county against American National Insurance Company, the city of Houston, and appellant, Sylvia Wilson Reedy, to recover $1,000, the proceeds of an insurance policy of group insurance issued by the American National Insurance Company to the city of Houston, for the benefit of. the employees of the city of Houston. The policy, on its face, was payable to “Sylvia Wilson, friend,” meaning Sylvia Wilson Reedy. The city of Houston answered, claiming no interest in the proceeds of the policy. The insurance company answered, tendering -the proceeds of the policy into court, to be awarded by the court to the legal claimant, also it impleaded the husband of appellee, Sylvia Wilson Reedy, and by its in-terpleader prayed for its costs, with $50 attorneys’ fees. Appellant answered claiming the policy under a contract between her and Ed Jones, whereby under a partnership agreement she was to be the beneficiary under the policy,' and- further that Ed Jones died testate and by his last will devised to her the proceeds of this policy. In due order of pleading, as a matter of abatement to plaintiff’s cause of action, she pleaded the pendency of the probate of the last will and testament of Ed Jones in the county court of Harris county. By supplemental petition appellee pleaded that the contract under which appellant claimed the proceeds of the policy-was in violation of good morals, in that it was a contract whereby Ed Jones and appellant were to live together in adultery, that Ed Jones was at the time of the making of the contract and at the time of his death the lawful husband of appellee, and that appellant, at-the time of the making of the contract and at the time of the death of Ed Jones, was the lawful wife- of O. H.' Reedy. Contained" in the policy was a statement signed by Oscar F. Holcombe, mayor of the city of Houston, that “the City, of Houston has arranged this insurance for all employees, without cost, as added compensation for duty well performed.” The trial was to the court without a jury with judgment in favor of appellee against appellant for the proceeds of the policy, with an award of $50 attorneys’ fees to American National Insurance Company, and $295 to H. E. McCoy, undertaker, for the burial expenses of Ed Jones.

In support of its judgment the trial court filed conclusions of fact and law to the effect that at the time of the making of the contract pleaded by appellant, she and Ed Jones were living together in adultery and that the contract was entered into “for the purpose of carrying out and aiding the unlawful cohabitation of Ed Jones and Sylvia Wilson Reedy,” and further “that the purported will, which has not been probated, was made at and near the time of the contract and really, as a matter of fact, should be considered with it, for it was to encourage the unlawful cohabitation of said' parties and by reason thereof said will, if probated, should not pass the title to the property in suit.” The court further found that Sylvia Wilson Reedy, appellant, “had no insurable interest in the life of Ed Jones, deceased.” Upon the -facts stated, the court concluded, “as a matter of law, that the purported contract attached to the plaintiff’s pleadings, as well as the purported will, which has not been probated, should not, and could not, under the facts, pass the title to anything owned by Ed Jones to Sylvia Wilson Reedy.”

Opinion.

It is our conclusion that the court erred in overruling appellant’s plea in abatement. The proceeds of the policy of insurance in question, under the recitation contained on its face, was a part of the community estate of appellee and her deceased husband, Ed Jones. His half of the community estate was subject to the provisions of the last will and testament pleaded by appellant, provided the said will was a lawful will and entitled to probate. At the time of the institution of this suit -the probate of the will was pending in the county court of Harris county. Under the decisions of this state the county court of Harris county has exclusive original jurisdiction to determine the validity of the will of Ed Jones and any order made by the district court of Harris county interfering with the jurisdiction of the county court was without legal effect and void. In Milner v. Sims, 171 S. W. 784, 786, discussing this legal' proposition, the Tex-arkana Court of Civil Appeals said: “The power of probating wills, or of proving their execution for record in order that they may constitute '-muniments of title, is- by our laws lodged in the' county court, and the district court can only pass upon such questions in cases appealed. .The district court cannot, therefore, in an original proceeding like this, forestall the action of the county court and deprive it of its original jurisdiction to determine such issues. If the will had been probated, the district court would also be without jurisdiction because of the statute which requires controversies of this character to be originally commenced in the county court.” '

In Becknal v. Becknal (Tex. Civ. App.) 298 S. W. 917, 919, the court said: “The jurisdiction of the county court in matters pertaining to probate is original and exclusive.”

And further: “The jurisdiction of the district court in this domain of the law is appellate.” The Commission of Appeals, in O’Neil v. Norton, 29 S.W.(2d) 1060, 1061, said: “It is well-settled rule in this state that when an administration on the estate of a deceased person is pending in the county court or it is made to appear that a necessity for it exists, the district court only has appellate jurisdiction and has no original jurisdiction to decree a partition or distribution or settlement of the estate among the heirs of decedent until the administration in the county court has been finally concluded.” .

It follows that the judgment of the district court should be reversed, and the cause remanded for a new trial. ■

Reversed and remanded.


author: HICKMAN, C. J. FUNDERBURK, J.

text:
    ÆTNA LIFE INS. CO. v. GILLEY et al.
    No. 513.
    Court of Civil Appeals of Texas. Eastland.
    July 10, 1931.
    Rehearing Denied. Sept. 18, 1931.
    Joseph W. Hale, of Waco, for appellant.
    Owen & Owen and Chastain & Judkins, all of Eastland, for appellees.
   HICKMAN, C. J.

At a former term we rendered judgment in favor of appellant. Ætna Life Insurance Company v. Gilley, 12 S.W.(2d) 821. A writ of error was granted by the Supreme Court and our judgment reversed. Gilley v. Ætna Life Insurance Company, 35 S.W.(2d) 136. The judgment of the Supreme Court remands the cause to this court for the purpose of having us pass on certain assignments named in the opinion by the Commission of Appeals not considered by us in our former opinion.

As we construe the opinion of the Commission, we are instructed to consider the sufficiency of the evidence to support the following. findings: (1) That the employ-, ment of Dallas Gilley by Geo. H. Davis was not a hazardous employment; (2) that the facts justified the rendition of a judgment in favor of the parents of the minor for a lump sum; and (3) that the value of the professional services rendered by Dr. J. W. Howell was $252. We are. also instructed to pass on an assignment that there was not sufficient evidence to authorize the court to submit to the jury-the. question of whether the deceased-was injured in the course of his employment.. This latter question is' not one of the sufficiency of the evidence to support the finding, but of the. existence of any evL dence warranting the submission-of the issue to the jury. We have not the.power;,or authority to consider the sufficiency of the eyi-denee to support a finding upon an assignment complaining, that-there is.no eviden.ee. Hall Music Co. v. Robertson, 117 Tex. 261, 1 S.W.(2d) 857. We overrule this assignment, Therq ■ was ampie. ..evidence authorizing the submission qfi.this issue to the-jury. -Therq is in the brief.-an assignment which might b.e construed, as' Raising .the,issue ,of .the suffiT c-iency. of .the evidence to support the finding of the jury on this issue. This evidence has been considered, and the assignment is overruled.

With regard to the issue of the sufficiency of the evidence to support the finding that the employment was not hazardous, we hold that there is sufficient evidence in the record to support this finding. It would appear on the surface that we are now holding the same evidence to be sufficient to support a finding which we formerly held to be wholly lacking. This apparent inconsistency arises from the fact that our conclusions of law differed from those announced by the Commission of Appeals and approved by the Supreme Court. It was our opinion that, since the Penal Code forbids the employment of a minor to work in a place where explosives are used, no issue of fact as to whether the particular employment was hazardous was involved. As we interpret the opinion of the Commission of Appeals, the holding is that, in order to prevent a minor from being an employee tinder the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.), the contract must not only be unlawful, but - the employment must be hazardous as a matter of fact. Under this holding, if we properly interpret it, when a minor, employed in violation of the child labor laws, is injured in the course of his employment,’ whether his cause oj: action is one for damages against his employer or for compensation under the Workmen’s Compensation Law cannot be determined in advance, but is dependent upon whether the jury finds from the facts of that particular case that his employment was hazardous. A finding in his suit under the Workmen’s Compensation Law that the employment was hazardous would defeat his claim, and a finding in his action for damages against his employer that his employment was not hazardous would defeat his claim for damages. Entertaining the view of law above expressed, we did not consider this assignment at all, deeming same .immaterial. Complying with the instructions from the , Supreme Court we have considered same, and hold that the evidence supports the finding.

The facts justified the rendition of a judgment in favor of the parents for a lump sum, and all contentions to the contrary are overruled.

The facts do not support a judgment in favor of Dr. J. W. Howell for $252. His own testimony, which was all the evidence offered on the question, conclusively establishes that the amount of his recovery should have been $125 instead of $252. The judgment must accordingly be.reformed so as to limit his recovery to the amount justified by the evidence.

The opinion of the Commission does not specifically point out other assignments upon which we are to pass, but wfe have considered them and overrule all of them not passed upon in the opinion by the Commission, except the one as to the excessiveness of the recovery by Dr. Howell.

The judgment of the trial court will be reformed in accordance with what has been stated above, and, as reformed, will be affirmed.

FUNDERBURK, J.

I concur in the opinion (and consequent disposition of the case) because it seems to me to answer correctly, according to the record, the specific matters which, as shown in the opinion of the Commission of Appeals, has been resubmitted for our determination. I am in some doubt whether or not we have correctly construed the opinion of the higher court'. It seems to me highly desirable that the views of the Supreme Court should be given clearer expression, with particular reference to .the difficulties we have had in interpreting the holding.

In our former opinion we regarded the fact of whether Dallas Gilley, a minor, was employed in a hazardous occupation as being not determinative of any question upon which defendant’s liability depended, and as being therefore, in a sense, immaterial. A better statement of our position, perhaps, would be, in the light of the higher court’s opinion, that whether such fact was material or not, it was completely comprehended and controlled by the larger question of the illegality of the employment, which, according to our views, was shown by the uncontroverted evidence.

In the opinion of the Commission of Appeals it seems to be the holding of the court that the provision in section 12i, art. 8306, R. S. T925, reading, “this- section shall not be considered as authorizing the employment of a minor in any hazardous employment which is prohibited by any statute of this state,” has the effect under operation of the rule or principle “expressio unis est exclusio alterium” (expression of one thing is the exclusion of the other), to exempt' the employment' of a minor from the operation of any and all laws which have the effect to render a contract of employment illegal, with the exception of one prohibiting a hazardous employment. The logical consequences of this holding, if properly if is tb be so construed, are so remarkable as to raise a doubt in my mind if same were intended. For example: A employs B, an adult, and C, a minor, the contract of employment expressly requiring them to work on Sunday at a work not exempted from the Sunday laws. B is not an employee. If injured, he cannot recover compensation. C is an employee and may recover. Again, A employs B, an adult, and C, a minor, to run a gambling house. B is not an employee and. can claim no benefits under tbe Workmen’s Compensation Law. But O is an employee and entitled to claim all such benefits. Take another example: A employs B, an adult female, and C, a girl child, to work in a mill or factory, the contract of employment requiring more than nine hours work each day, and more than fifty-four hours each week in express contravention of the Penal Code, art. 1569. The woman is not an employee under the Workmen’s Compensation Law; but the child, being a minor, is such employee. Numerous such examples of the necessary effect of the court’s holding, if wo understand same, could be given. Is such the meaning of the court’s decision? The opinion says [35 S.W.(2d) 136, 137]: “The testimony is sufficient to justify the finding of fact by the Court of Civil Appeals that the employment of Dallas Gilley by Davis was in violation df article 1576.” Certainly article 1576 condemns a contract of employment by which a child under fifteen years of age is required or permitted to work or be on duty more than eight hours a day. Why, then, was not that fact sufficient support for the judgment, regardless of the possible insufficiency of other grounds? Is not the reason to be found in the court’s holding that the provision quoted from section 12i, art. 8306, makes that statute inapplicable to a minor? And, if so, would not the same be just as true of any employment un-, der any contract which a statute renders unlawful, with the single exception noted?

The opinion raises another question, which it seems to me it is highly desirable should be answered or explained in the interest of the general jurisprudence of the state. That is, why the facts of this case should not be held to come within the exception noted. Granting that we have correctly construed the. court’s holding in the respect already mentioned, why does not the present case come squarely within the exception as being a hazardous employment prohibited by the statutes of this state? The .court does not hold — or, if so, we wholly misconstrue same —that Dallas Gilley’s employment did not require him to labor in a “place where explosives” were “used.” That apparently was deemed to be immaterial. Seemingly, the material inquiry was held to be: Was the employment in fact Hazardous? What does section 12i, art. 8306, mean by “hazardous employment which is prohibited by any statute of this State”? The Legislature was evidently of opinion that there was one or more hazardous employments which it had undertaken by statute to prohibit. If so, what were such hazardous employments, and prohibited by what statutes? Can it be questioned that if there be any such hazardous employments, article 1574 is at least one of the statutes which prohibits some of them? Why does article 1574 prohibit the employment of any child under the age of seventeen “to labor in any mine, quarry or place where explosives are used,” unless it be that the Legislature had predetermined that such employment was hazardous? The question as a question of fact whether in a particular case the employment of a child under seventeen years of age in a mine, quarry, or place where explosives are used is a hazardous employment, would seem to have been foreclosed by the law itself. A perfect analogy is found in the law of negligence. If a statute prohibits an act or an employment and the doing of such act or the fact of such employment is the proximate cause of an ⅝ jury, no question of fact as to the existence or not of negligence arises. The question of negligence is foreclosed by the law. If section 12i, art. 8306, by the provision above quoted, has reference to article 1574, which it seems to me cannot be.doubted, why is not the fact question as to whether the employment is hazardous foreclosed by the law itself in precisely the same way? In a railroad damage suit, where negligence is charged in failing to sound the whistle and ring the bell, and where the undisputed evidence shows such failure to sound the whistle and ring the bell, would a judgment be supported by a verdict and finding that it was not negligence to do so?

The very mention of these matters, it seems to me, must suggest the possibility that we have wholly misinterpreted the opinion of the court. If we have done so, may not our'error be in some degree chargeable to a want of entire clearness in the opinion of the higher court which it .would serve the public welfare to have removed?

The only excuse for offering these remarks is that, in case the jurisdiction of the Supreme Gourt be again invoked in this case, whatever its action, it may deem it advisable to restate a little more clearly and certainly the views of the court upon the questions involved.