author: KLINGEMAN, Justice.

text:
    Christopher GREGORY, Appellant, v. Lee H. LYTTON, Jr., et al., Appellees.
    No. 14633.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1967.
    Rehearing Denied Dec. 27, 1967.
    Frances Tarlton Farenthold, Wood, Boy-kin, Rylee & Wolter, Corpus Christi, for appellant.
    Perkins, Floyd, Davis & Oden, Alice, Horkin, Nicolas & Nicolas, Corpus Christi, Elmore H. Borchers, Laredo, for appellees.
   KLINGEMAN, Justice.

This is an appeal from an order dismissing a petition in the nature of a bill of review in Cause No. 13850 in the District Court of Jim Wells County, 79th Judicial District, which bill of review was filed by appellant, Christopher Gregory, also referred to as Brother Leo, to review and set aside an order in Cause No. 12074, dated September 1, 1964, in the same court.

Appellant’s only point of error is that the trial court erred in holding that the judgment in cause No. 12074 “is an interlocutory judgment and not a final judgment, and for such reason is not properly the subject of a suit in the nature of an equitable bill of review, and by reason of such holding in dismissing plaintiff’s said suit for bill of review.”

The principal question to be determined by this Court is whether the judgment of September 1, 1964, is interlocutory, and therefore not subject to bill of review, although appellee Bishop Drury has a counterpoint to the effect that even if the judgment in Cause No. 12074 was final, which he asserts is not the case, the record on its face shows that such judgment is based on a contract dated October 28, 1963, containing strict provisions for specific performance, and the bill of review of appellant filed on March 8, 1966, is thereby barred by limitation and laches.

The controversy involves the properties and affairs of Sarita K. East, who died on February 11, 1961. Prior to her death, Mrs. East organized and had incorporated under the Texas Non-Profit Corporation Act, the John G. and Marie Stella Kenedy Memorial Foundation, for religious, charitable and educational purposes. Initially, Mrs. East was the sole member thereof, but under date of February 11, 1960, Mrs. East appointed Jacob S. Floyd and Lee H. Lytton, Jr., as co-members of such foundation. Sometime thereafter she requested and received their resignations as members. On December 30, 1960, Mrs. East made an additional appointment of Christopher Gregory as co-member during her lifetime. The will of Sarita K. East, dated January 22, 1960, in addition to devises to a number of relatives and former employees, left the residue of her estate to her foundation. A First Codicil to said will, bearing the same date as the will, named the Bishop of the Diocese of the Roman Catholic Church of Corpus Christi as her successor to membership in such foundation upon her death. Thereafter, Mrs. East made Second, Third, Fourth and Fifth Codicils to such will, and under the Third Codicil revoked the First Codicil and appointed Peter Grace, Christopher Gregory and Father Patrick J. Peyton as successor members to her after her death. In such will Edgar Turcotte, Jacob S. Floyd and Alice National Bank were named executors. A contest to such will was filed in Kenedy County by Raul Trevino and others claiming to be blood heirs at law of Sarita K. East, and such will contest was pending at the time of the judgment of September 1, 1964. There was also pending at such time a suit in the District Court of Kenedy County to set aside certain inter vivos deeds from Sarita K. East to the John G. and Marie Stella Kenedy Memorial Foundation, and an injunction had issued out of the District Court of Kenedy County, Texas, in Cause No. 85, styled Arnold R. Garcia, Temporary Administrator of the Estate of Sarita Kenedy East, Deceased v. The John G. and Marie Stella Kenedy Memorial Foundation et al., wherein the parties thereto were enjoined from disposing or transferring certain purported assets of the foundation pending determination of the action..

Cause No. 12074 was commenced on the 19th day of April, 1961, by Lee H. Lytton, Jr., complaining of the John G. and Marie Stella Kenedy Foundation and others, including appellant, in which petition plaintiff asked that a temporary injunction issue pending trial of the case, enjoining appellant and others from withdrawing funds from the foundation, from executing any contracts affecting certain lands, and other injunctive relief, and that on final hearing the court enter its declaratory judgment that Lytton and Jacob S. Floyd were the only legal members of the foundation; that defendants Gregory and Grace be required to file an accounting with the court and to return to the defendant foundation any assets received by them as a result of undue influence practiced by them on Mrs. East, and other relief. Thereafter, various answers, cross-actions, amended pleadings, and petitions of intervention were filed in said case by various parties, some of them seeking relief similar to that asked by plaintiff Lytton. The temporary injunctive relief prayed for was granted by the court, and the temporary injunction was continued from time to time. As a result of motions to strike, the plea of intervention filed in said cause by Raul Trevino et al., was stricken and dismissed from said cause, and the defendants in intervention, Alice National Bank, Edgar Turcotte and Jacob S» Floyd as Executors of the Estate of Sarita K. East, deceased, were dismissed from said suit insofar as said petition in intervention was concerned. An appeal therefrom was taken by Raul Trevino et al., and the Waco Court of Civil Appeals dismissed such appeal on the basis that it was not an appeal from a final judgment. Kimmel v. Lytton, Tex.Civ.App., 371 S.W.2d 927 (1963, writ ref’d).

On September 1, 1964, the trial court entered the order from which appellant sought a bill of review. The order recites that all parties to such action have approved the .judgment, and on such judgment under the heading “Approved as to Form and Substance” is found the signature of appellant, Christopher Gregory, together with the signatures of other parties and attorneys in said cause. The order decrees certain people, not including appellant, to be the present and only legally authorized and elected members, directors, and officers of the John G. and Marie Stella Kenedy Foundation; confirms and ratifies certain amendments to the Articles of Incorporation of such Foundation ; vacates and dissolves temporary restraining orders theretofore issued; enjoins and restrains all parties from disposing of, dissipating, removing from the territorial limits of the State of Texas, or expending any money or royalties heretofore or hereafter received by the Foundation under three instruments described in such order, with certain exceptions as to payment of taxes, etc.; dismisses various parties to the suit; recites that a temporary injunction has heretofore issued out of the District Court of Kenedy County, Texas, as a result of which the parties hereto have refrained from executing and delivering an assignment of a production payment in oil, gas and other minerals in certain lands, from the John G. and Marie Stella Kenedy Memorial Foundation to the Sarita Kenedy East Foundation, Inc., a copy of which instrument is attached to the judgment as an Exhibit, and the proper parties are authorized to execute, acknowledge, and deliver such assignment upon the vacation or avoidance of such temporary injunction and the temporary injunction hereinabove provided for. Said judgment further recites: “This is an interlocutory order and shall remain in full force and effect until further ordered by this Court,” and provides that “All costs of suit shall abide the issue.”

Appellant contends that the judgment of September 1, 1964, did dispose of all issues and parties in the case; that the injunction and order authorizing and directing a future act were merely incidental to the main relief granted; that the word “interlocutory” as used in such judgment was merely intended to show that the injunction therein issued was temporary in nature and would be dissolved by further order of the court when no longer necessary; that the mere fact that disposition of costs remain to be determined does not prevent a judgment from being final; and that evidence aliunde the judgment and pleadings in such cause is not determinative of the finality of such judgment. Appellant cites a number of cases in support of his contention, but, insofar as we have been able to ascertain, none of such cases involved an agreed judgment and in none of them was it expressly stated by the trial court that the judgment was interlocutory.

Appellees contend that the judgment was not final because: (1) It was expressly stated otherwise in such judgment. (2) The order was interlocutory in its nature. (3) Further action of the court of some kind or character is contemplated and actually indispensable. (4) The costs’of suit were left open and not taxed or paid. (5) The court itself, in addition to signing the order containing the language that it was interlocutory, made a docket entry indicating that the order was interlocutory and not final. (6) The clerk of the court continued to carry such case as an active case and not as a case closed by final judgment. (7) Some of the parties to such suit continued to file additional pleadings and other papers in said cause after the entry of the judgment. (8) The order standing alone is interlocutory in nature, but that such order expressly refers to a collateral settlement agreement which should be approved and judgment entered in accordance with such settlement agreement; and that such settlement agreement, which was admitted into evidence as an exhibit, makes the judgment in Cause No. 12074 contingent on the results of the will contest in Kenedy County, and when such judgment of September 1, 1964, is construed with the collateral agreement it is obvious that the judgment under attack is interlocutory and not final.

The general rule is that a judgment to be final must dispose of all issues and parties in a case. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966); Hargrove v. Insurance Inv. Corp., 142 Tex. 111, 176 S.W.2d 744 (1944). But, as stated by Justice Calvert in North East v. Aldridge, supra, “The rule is deceiving in its apparent simplicity and vexing in its application.” In 4 McDonald, Texas Civil Practice § 17.03 (1950), it is stated: “There is a great body of precedent upon the difficult question of whether a particular decision of the court represents a ‘final’ or an ‘interlocutory’ judgment. * * * It thus frequently becomes a problem in construction to determine whether the particular decision was ‘final’ for the purpose of the question before the court. This problem must be resolved by a determination of the intention of the court gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.”

It appears clear that the court intended that such judgment be interlocutory, because not only does it expressly state so in such judgment, but in the judgment dismissing appellant’s bill of review in the case on appeal the trial court makes findings, among others, that it was the intention of the parties and the court to enter a temporary order; that “The word ‘interlocutory’ contained in the temporary order entered in Cause No. 12,074 was used with cautious and deliberate design;” that by said wording the temporary order entered in said cause was expressly made interlocutory in its entirety. As to the intentions and conduct of the parties, such judgment of September 1, 1964, recites that all parties to such action have approved the same, and the judgment contains the signatures of appellant and other parties and attorneys in such suit. The record reflects that the court made a docket entry that such order was interlocutory; that on the docket of such court said case was continued to be carried as an active case, and after the date of such judgment there were entries made on different occasions, such as “passed,” and that some of the parties continued to file additional pleadings in the case.

This Court in Culicchia v. Taormina, Tex.Civ.App., 332 S.W.2d 803, 804 (1960, no writ), stated:

“In determining whether the judgment was a final one, we are limited largely to what the court stated by the judgment, and what might have been or could have been done is not the issue. There may be more than one way to write a judgment in an accounting suit, but we need only to determine what was done in this case. ■
“The judgment was carefully drawn and shows painstaking care in disposing of complex accounting problems. Throughout the judgment, the court makes rather clear what was intended, and while it is true that an instrument is what it is, without regard to the label appended to it, when a judgment contains words and internal evidences of its nature, we will not ignore them. * * *
“The court explicitly and repeatedly stated that this was an interlocutory and not a final judgment. Ball v. Nelms, Tex.Civ.App., 293 S.W. 335. * * * ”

See also the recent case of State v. Starley, 413 S.W.2d 451 (Tex.Civ.App. — Corpus Christi, 1967).

In addition to the express statement in the judgment by the trial court to the effect that “This is an interlocutory order and shall remain in full force and effect until further ordered by this court,” there are certain judicial acts to be performed by the trial court in said cause in the future. At some future date, it will be necessary for the trial court to act upon the temporary injunction provided for in such order, to assess all costs of suit, and to determine the effect of any change in the temporary injunction issued in the District Court of Kenedy County. See 33 Tex.Jur.2d Judgments § 85 (1962).

It is our opinion that appellees counterpoint to the effect that the trial court correctly held that the judgment in Cause No. 12074 is interlocutory and not subject to attack by Bill of Review and appellant’s suit was properly dismissed, should be sustained. In view of such holding, we do not pass upon appellee Father Drury’s counterpoint that the Bill of Review of appellant is barred by limitation and laches.

Appellant’s sole point of error is overruled. The judgment of the trial court is affirmed.

      . Other findings made by the court were: “(1) that at the time the temporary order was entered there was pending a contest of the Last Will and Testament of Sarita K. East, Deceased, being Cause No. 348 (hereinafter called the ‘will contest’) on the docket of the County Court of Kenedy County, Texas; (2) that the parties and this Court in Cause No. 12,074 clearly recognized that the outcome of the will contest might substantially affect Cause No. 12,074 because the Last Will and Testament of Sarita K. East, Deceased, under attack in said will contest, devises and bequeaths her residuary estate to the John G. and Marie Stella Kenedy Memorial Foundation (hereinafter called the ‘Foundation’) ; (3) that because the will contest involved assets of Sarita K. East, Deceased, which may, or may not be, ultimately administered by the Foundation, neither the parties nor the Court on September 1, 1964, intended to have entered a final judgment in said Cause No. 12,074; (4) that at the time the temporary order was entered there was also pending a suit to set aside certain inter vivos deeds from Sarita K. East, Deceased, to the Foundation, the same being Cause No. 85, styled Arnold R. Garcia vs. The John G. and Marie Stella Kenedy Memorial Foundation, et al, on the docket of the District Court of Kenedy County, Texas, 105th Judicial District (hereinafter called the ‘deed suit’) ; (5) that the parties and this Court in Cause No. 12,074 recognized that the outcome of the deed suit might substantially affect Cause No. 12,074 because said deed suit involves a substantial portion of the Foundation assets; (6) that consequently neither the parties nor the Court on September 1, 1964, intended to have entered a final judgment in Cause No. 12074, due to the bearing of the deed suit upon said Cause No. 12,-074; (7) that there existed the possibility of a number of issues or the entire action in Cause No. 12,074 being rendered moot if Plaintiffs in both the will contest and the deed suit were successful; (8) that the parties in Cause No. 12,-074, intended to enter a temporary order which may become a final judgment in the event Plaintiffs in both the will contest and the deed suit are unsuccessful, but the parties in Cause No. 12,074 did not intend to provide for alternative judgments based upon other possible results in the will contest and the deed suit; (9) that although the temporary order entered in Cause No. 12,074 might lead to a final judgment, the outcome in the will contest and deed suit must first be known; (10) that it was the intention of the parties and the Court to enter a temporary order only in Cause No. 12074 because of the various contingencies herein described; (11) that the settlement agreement executed by the parties and the agreed temporary order entered pursuant thereto in Cause No. 12,074 recognizes the possible effect which the will contest and the deed suit might have on any future final judgment in Cause No. 12,074; (12) that because of the various contingencies, this Court in its order in Cause No. 12,074 included in the temporary order a temporary injunction enjoining the parties from ‘disposing of, dissipating, removing from the territorial limits of the State of Texas, or spending any monies and/or royalties heretofore or hereafter received by the John G. and Marie Stella Kenedy Memorial Foundation, its officers, directors, members, agents, employees and representatives * ⅜ which temporary injunction is still in full force and effect; (13) that the court therefor provided in its temporary order in said Cause No. 12,074, that all costs of suit would not be taxed until entry of final judgment; and (14) that some of the parties amended their pleadings subsequent to the entry of the temporary order in Cause No. 12,074, * * *.”

      . “A final judgment is one that determines the rights of all the parties to the suit, and disposes of all the issues involved on their merits. Thus, a judgment is final where no further action adjudicating the rights of the parties may be taken by the court. But to constitute a final judgment it is not sufficient that the court has made a ruling that should logically lead to a final disposition of the cause; the consequence of the ruling to the parties must be also declared. The very object of a suit is to adjudicate and declare respective rights so that the ministerial officers can with certainty carry the judgment into execution without the ascertainment of additional facts; where this is not the case the judgment is not final.”


source: Caselaw Access Project

author: HIGHTOWER, Chief Justice.

license: Public Domain

text:
    GETTY OIL COMPANY (Successor in Interest to Tidewater Oil Company), Appellant, v. W. D. ROYAL, Appellee.
    No. 6874.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 21, 1967.
    Rehearing Denied Jan. 10, 1968.

      Jack L. Brandon, Houston, for appellant.
    Ernest Coker, Jr., Conroe, for appellee.
   HIGHTOWER, Chief Justice.

Subsequent to the perfection of appeal of this case, it has been made known to this court that the original appellant, Tidewater Oil Company, has become merged with Getty Oil Company. Accordingly, the name of Getty Oil Company, as successor in interest to Tidewater Oil Company, has been substituted in the place and stead of Tidewater Oil Company, as original appellant herein.

Tidewater Oil Company, as owner of a mineral lease estate, sought relief, by way of permanent injunction, against W. D. Royal, as owner of the surface estate of said lease. The action sought to enjoin defendant, Royal, from placing or erecting any gates across plaintiff’s roads on said lease and from interfering in any manner with plaintiff’s use of said roads in the operation of its lease. From the judgment of the trial court denying the injunction, based upon a jury verdict, plaintiff has appealed.

Appellant and two other parties own an oil and gas lease covering 299.74 acres of land in Montgomery County, Texas. The lease was executed in 1931 and appellant has operated it for exploration and production of oil and gas since 1933. At the present time Appellant has 15 producing oil wells and a considerable amount of equipment on the lease. In connection with the operation of its lease, Appellant has constructed and maintains on the leased premises a system of roads providing access to its wells and other facilities thereon.

At the time said lease was executed the surface of the 299.74-acre tract was owned as a single tract. However, subsequent to the execution of the lease, various segregated portions of the surface have been subdivided out of the 299.74-acre tract. Ap-pellee owns the surface of one of these subdivided tracts, a tract containing about 65 acres.

Three of appellant’s wells and a meter run are situated on appellee’s 65-acre surface tract. Appellant gains access to these wells and meter run by means of four separate roads constructed by appellant across the 65-acre tract. Each of these roads constitutes appellant’s sole means of access by vehicle to the particular well and meter run to which each road leads. Each of such roads is used daily by appellant’s employees in operating the lease. All four of such roads had been in existence and used by appellant for many years prior to the time ap-pellee acquired the 65-acre surface tract. Prior to the filing of this suit, these roads had always been open and unobstructed. Shortly before this suit was filed, appellee built a fence around his 65-acre tract and after the suit was filed, appellee placed wire gaps across appellant’s roads at the four points where such roads intersect the fence enclosing the 65-acre tract. During the trial, appellee stipulated that he intended to replace the wire gaps with metal gates.

Over the objection of appellant, the case was submitted to the jury on the theory that appellee is entitled to erect the four gates in question if such gates do not unreasonably interfere with appellant’s use of such roads in the operation of its oil and gas lease. The jury found that such gates do not constitute an unreasonable interference, with appellant’s use of its roads.

It is elementary that the mineral lessee, insofar as the surface of land is concerned, possesses the dominant estate, and the lessor, or surface owner, has the servi-ent estate. The mineral lessee, as the owner of the dominant estate, has the right to the use and possession of so much of the surface as is reasonably required in the operation of his mineral lease. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410, 411. The rule of dual possession — i. e., that the mineral lessee is entitled to use so much of the leased premises as is required in its lease operations reasonably necessary for development and exploration, and that the surface owner has the right to use the portion of the surface not so required by the mineral lessee — does not apply where the rights of the parties are in conflict. United North & South Oil Co. v. Mercer (Tex.Civ.App.) 286 S.W. 652 (no writ).

We are of the opinion that the erection of gates by appellee upon the roads in question does not constitute a use by ap-pellee as would constitute an unreasonable interference with appellant in the use of said roads, or would enlarge the burdens and diminish the rights of appellant to operate its lease as a single entity, and we do not believe that the rights of the parties are in conflict in this case. We have been referred to no case exactly in point which is probably due to the fact of common knowledge that a lessee, having producing wells on the premises, generally prefers that they be closed to access by the general public or meddlers. Appellant’s employees travel between the wells on its lease by motor vehicle and the presence of said gates require that appellant’s employees alight from and reenter their vehicles five times in order to service each well on the 65-acre tract. In the absence of said gates, appellant’s employees would be required to alight from their vehicles only once to service each well on this tract. This constitutes some inconvenience to appellant, but not an unreasonable one. The gates are not to be locked, and appellant does not have to secure permission from appellee, or anyone else, to pass through them. On the other hand, the absence of gates would unduly deprive ap-pellee of the rightful use and protection of his surface estate. The evidence clearly establishes that his land was being damaged by trespassers using the roads leading to appellant’s wells and meter runs. The litter, trash and objects deleterious to live stock was being discarded by trespassers using said roads. Gates would be the only protection for appellee in this connection.

By its third and fourth points, appellant urges error of the trial court in refusing to give the following instruction to the jury:

Plaintiffs Requested Instruction No. IT. You are instructed that the oil and gas lease involved in this case grants to the oil and gas lessee the exclusive right to use so much of the surface of the leased premises as is reasonably necessary to explore for, develop, and produce oil and gas. Under the terms of this lease, the oil and gas lessee has the right to build and use roads on the leased premises that are reasonably necessary to gain access to its wells and other facilities on the lease. While the surface owner has the right to use his surface in any manner that does not interfere with the oil and gas lessee’s operations, the surface owner can do nothing which will deprive the oil and gas lessee of its rights or in anywise lessen them.

Appellant contends that such instruction was necessary to enable the jury to properly pass upon the issue of whether the erection of barriers across appellant’s roads constitute an unreasonable interference with appellant’s use of such roads. We consider there is no merit to these contentions.

The single issue which controlled the case and the answer thereto was as follows:

SPECIAL ISSUE NO. 1
Do you find, from a preponderance of the evidence, that the erection by Defendant of gates across Plaintiff’s four roads on the Defendant’s 65 acre tract constitutes an unreasonable interference with Plaintiff’s use of such roads by Plaintiff in the operation of its oil and gas lease?
Answer “Yes” or “No”
Answer: No

Together with said issue, the court submitted the following instruction to the jury:

In answering the foregoing Special Issue, you are instructed that a determination of whether the erection of such gates by Defendant is “unreasonable” involves weighing the degree of harm or inconvenience such gates cause to Plaintiff against the utility of such gates to Defendant and the suitability of other measures which would substantially serve the purpose of such gates to Defendant at less or no inconvenience or harm to Plaintiff.

While it may not have been improper to have given appellant’s special requested instruction, we deem that it was not necessary and that the failure to do so was harmless in view of the court’s instruction which the court did give in connection with the issue aforesaid. Appellant’s points are overruled.

By its last point, appellant urges the error of the trial court in failing to admit the testimony of appellant’s witness, E. W. Childers, showing the expense imposed on appellant in the operation of its entire lease, 299.74 acres, by the barriers erected by appellee and the expense that would be imposed on appellant if barriers were erected on all appellant’s roads on the lease involved because appellant is entitled to operate its lease as a single entity and is entitled to have the jury consider the effect of such barriers on the operation of the lease as a whole. If such refusal of the trial court was indeed error, we hold the same to have been harmless as such as would have tended to cause an improper verdict and judgment in the case. Unquestionably, appellant had the right to show the expense occasioned to it by the use of said gates on the 65-acre tract in question belonging to appellee, but it did not choose to so limit the testimony. It sought, and we think improperly, to show the expense which would be occasioned in the hypothetical situation where all the surface owners of the entire lease were to erect similar barriers. We are of the opinion that the trial court properly excluded such testimony. The judgment of the trial court is, accordingly, affirmed.

Affirmed.


author: NYE, Justice.

text:
    STATE of Texas et al., Appellants, v. David H. NOSER et ux., Appellees.
    No. 264.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 19, 1967.
    Rehearing Denied Nov. 30, 1967.

      C. W. Pearcy, Asst. Atty. Gen., Highway Division, Austin, Travis Hiester, of Kelley, Looney, McLean & Littleton, Edinburg, for appellants.
    Stonewall Van Wie III, of Rankin, Kern, Martinez & Van Wie, McAllen, for ap-pellees.
   OPINION

NYE, Justice.

This is a suit for declaratory judgment with an alternate plea in trespass to try title. The suit was brought by the plaintiffs to determine the title and right of possession to certain lands. The plaintiff landowners contended that they were the owners of a narrow strip of land in front of their property and that the officials of the State and County were claiming such land as part of the right of way to a public road. The plaintiffs named as defendants certain officials of Hidalgo County and of the State of Texas, individually and in their official capacities. The defendants answered and filed two dilatory pleas, the first a plea to the jurisdiction of the court based on sovereign immunity. They asserted that this was a suit against the State of Texas and that since the plaintiffs did not secure the consent of the legislature of this state to bring this suit, the court was without jurisdiction to hear the case. Subject to the foregoing plea, the State contended that the suit should be abated because the State of Texas was not, and has not been made a party to the suit; that the State of Texas was a proper, necessary and indispensable party to this cause of action. The individual defendants filed pleas of not guilty, general denials, disclaimers of any right, title or interest in the land in question as individuals or in their official capacities and alleged that they acted solely for and in behalf of the State of Texas claiming finally that the State of Texas had record title to the disputed strip of land, or if not, it had acquired an easement by prescription.

Prior to the actual trial before the court without the aid of a jury, the State of Texas filed a plea of intervention under certain stipulations whereby they would proceed to trial on the merits and that its plea of intervention would be without prejudice to the two dilatory pleas. The case then proceeded to trial in accordance with the procedure set out by the Supreme Court of Texas in the case of State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961). Based upon the Lain case the court proceeded to trial to determine from the evidence the issue of title and right of possession and therefore delayed action on the pleas until the evidence was in. The trial court rightfully concluded that if the plaintiffs failed to establish their title and right to possession the court would enter a take-nothing judgment against the plaintiffs, the same as in other trespass to try title cases. On the other hand, the court reasoned, if the evidence established superior title and right of possession in the sovereign, the public officials would be rightfully in possession of the sovereign’s land as agents of the State and their plea to the jurisdiction based on sovereign immunity would have to be sustained. The defendants’ and the State’s plea in abatement rests on the contention that the State of Texas was a necessary and indispensable party to the cause of action since the plaintiffs sought alternatively possession, title and damages to the land claimed and used for highway and right of way purposes by the State of Texas. Therefore, the State of Texas was the proper, necessary and indispensable party and the cause of action should be abated until the State had been made a party to the suit.

It was developed in the course of the trial that back in 1926 the County of Hidal-go decided that a certain public right of way should be widened. Condemnation proceedings were commenced all along the public road including the strip of land in question. For some reason not fully developed in the record before us, the action on this particular piece of land was never finalized and the condemnation case was dismissed. The County subsequently transferred ownership to the entire public road to the State of Texas. Just prior to the instigation of this suit the State desired to further widen the road and was met by plaintiffs’ suit to determine the title to the narrow 15 ft. x 396 ft. strip of land lying adjacent to plaintiffs’ property. Ancillary to plaintiff’s suit, a temporary restraining order was entered and was subsequently dissolved along with a denial of the plaintiffs’ application for temporary injunction against the State of Texas, when the State of Texas filed its plea of intervention which included an alternative plea for condemnation under article 3269, Tex. Rev.Civ.Stat.Ann.

Upon conclusion of the trial on the merits, the court overruled the defendants’ plea to the jurisdiction, its plea in abatement and entered judgment for the plaintiffs that they recover from the defendants and intervenor the State of Texas the title and possession to the strip of land in controversy, but that the plaintiffs take nothing under their plea for damages in trespass. The court severed the State of Texas’ alternative plea for condemnation contained in its plea in intervention, and entered final judgment as to all other matters and all other parties. The defendants and the intervenor State of Texas have perfected their appeal.

The appellees’ first counter point is that this Court has no jurisdiction over this appeal for the reason that the appeal is not from a final judgment. It is appel-lees’ contention that the issues involved in this suit were not segregated or severed before the trial on the merits began and that it was the intent of all of the parties concerned that if the State of Texas prevailed in this suit, a final judgment would be entered; but that on the other hand, if the appellees prevailed as they contend they have, the case would simply move into a new stage of procedure and that would be by way of condemnation for a determination of the value and damages to the strip of land that was to be taken. The trial court in its judgment, severed from the main suit the State of Texas’ alternate plea for condemnation and entered a final and appealable judgment as to all parties not severed. The judgment appealed from is final. Appellees’ counter point is overruled.

Appellants’ first point is that the trial court erred in overruling defendants’ plea to the jurisdiction; that this was a suit against the State of Texas instituted without legislative consent. It is the law in this state that a suit cannot be maintained against the State without the consent of the legislature. Dodgen v. W. D. Haden Company, 303 S.W.2d 443 (Tex.Civ.App. — Ft. Worth, 1957) affirmed 158 Tex. 74, 308 S.W.2d 838 (1958). It has been held that a suit is one against the State whether it be named a party against whom relief is sought or not, if the suit seeks in fact to control the State’s action or subject the State to liability. Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S.W. 813 (1923) and W. D. Haden Company v. Dodgen (Tex.Sup.1958). Appellants contended that actually and technically this is a suit against the State based on appellees’ pleadings and defendants’ answers; that the State has a claim of title of easement by prescription and that it was in possession of the land in controversy. They further contend that the State actually did have an easement by prescription and was entitled to possession and that the evidence in this case clearly shows this to be true as pointed out further in other points of error.

The case turns on the question of whether or not the State has a superior title and is entitled to possession. As stated by Chief Justice Calvert in State v. Lain, supra:

“ * * * If the evidence establishes superior title and right of possession in the sovereign, the officials are rightfully in possession of the sovereign’s land as agents of the sovereign and their plea to the jurisdiction based on sovereign immunity should be sustained. If, on the other hand, the evidence establishes superior title and right of possession in the plaintiff, possession by officials of the sovereign is wrongful and the plaintiff is entitled to relief.”
“On the other hand” * * *

as stated by judge Calvert (page 581 of 349 S.W.2d):

“One who takes possession of another’s land without legal right is no less a trespasser because he is a state official or employee, and the owner should not he required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting for and on behalf of the state.”

We hold that the evidence supports the trial court’s findings and conclusions of law which are to the effect that the defendant public officials were acting as individuals and their action was not that of the sovereign. The trial court held that plaintiffs had title and the right of possession and the State failed to establish an easement by prescription. As pointed out hereafter in more detail in this opinion, we uphold the trial court’s ruling. Therefore, the court was correct in overruling the appellants’ plea to the jurisdiction.

Appellants filed a plea in abatement contending that the State of Texas was a necessary, proper and indispensable party to this suit and that until the State was made a party the suit should be abated. This too was taken under advisement by the trial court and finally overruled at the conclusion of the evidence. This action by the trial court is the basis for appellants’ second point. The judgment here was against the individuals and is predicated upon an incidental determination that title and the right to possession of the land in question is in the plaintiffs and as such is not binding on the sovereign. The Supreme Court in Lain said that if those who wrongfully claimed title or the right of possession are sued in their official capacities as well as individually, this cannot alter the rule. To hold otherwise would exhalt form over substance. It is then that the Court said:

“ * * * The judgment against the individuals, predicated as it is upon an incidental determination that title and right of possession is in the plaintiff, is not binding on the sovereign.”

Since the State’s title and right of possession is only incidentally determined and the decision was not binding on it, the State was neither a necessary nor indispensable party and the trial court was correct in overruling appellants’ plea in abatement. Appellants’ point is overruled. It should be noted however that once this plea in abatement was overruled, the State of Texas’ plea of intervention (stipulated as it was to be subject to the plea to the jurisdiction and the plea in abatement) came into effect and the State then became an actual party voluntarily on whom the trial court’s judgment is binding.

Appellants’ points 3, 4, 5 and 6 contend that there is no evidence or insufficient evidence to show that Carl Edmund was a common source of title and the State did not admit this fact and there was no evidence that Carl Edmund ever had record title. In a trespass to try title action the plaintiff must of course recover on the strength of its own title and not on the weakness of its adversaries. In general, the plaintiff can sustain his burden in making out a prima facie case in one of four ways: (1) he can prove title emanating from the sovereignty of the soil to himself; (2) he can prove title in himself emanating from a common source to which the defendant claims; (3) he can prove title by adverse possession (proved in himself or in some predecessor whose title he has acquired) ; or (4) he can prove prior possession at a time antedating defendant’s possession thereof. Appellees claim that they have shown title in themselves emanating from a common source from which the defendants claim title by prescription. (In other points appellees also claim prior possession). Common source may be shown either by the pleadings of the parties, by agreements and stipulations or by proof upon trial. Goode v. Davis, 135 S.W.2d 285 (Tex.Civ.App.— Ft. Worth 1939, wr. dism., judgm’t correct); Luckel v. Sessums, 71 S.W.2d 579 (Tex.Civ.App.—Texarkana 1934, wr. dism.); Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62. Appellees answered these points of the appellants by claiming that they introduced into evidence the State of Texas’ plea of intervention which pleading stated that the County of Hidalgo had condemned from Carl Edmund the subject property and therefore the State by transfer from the County had derived their claim of title from him. The State’s pleading stated further that the State’s ■ ownership was based either upon record title or upon an easement through use by the State of Texas over a period of 25 years, as well as upon having acquired during the year 1940 the rights of the County of Hidalgo, which, at that time the county at the very least had an easement for the said purposes over the said described land upon the basis of its use and prescription for such purpose over a period of 14 years.

Appellees proved that there was no judgment entered in the condemnation suit brought by the County against Carl Edmund; and that there were no recorded easements to the county or State to the disputed strip of property. Appellees showed title through various means and conveyance into Carl Edmund and a regular chain of title to themselves. Since the State claimed title in its pleadings emanating from the condemnation by the County of the property from Carl Edmund and that they had acquired title either by the condemnation or by prescription this evidence is sufficient to show a common source to which the defendants claim.

The appellants claiming a prescriptive right does not change the fact that they are claiming in their pleadings a record title through the common source of Carl Edmund. Where a claim of limitation title derives from possession under prior -grantees, then since the source of their title emanates from that person or persons they are a common source if the other party also claims from the same grantees. Moran v. Stanolind Oil & Gas Co., 127 S.W.2d 1012 (Tex.Civ.App.—Ft. Worth 1939, err. dism. judg. corr.). There was no dispute as to the common chain of title.

Appellants contend that the ap-pellees are relegated to a showing of their title from the sovereignty of the soil to themselves since this was set forth in their pleading. This is not so. A party is not required to introduce all of the links set forth in his pleading so long as he can show a better title than his adversary. 41-A Tex.Jur., § 165, p. 709. It is not necessary to go back to the sovereignty of the soil where there is an undisputed common source of title. Hoffman v. Tolbert, 327 S.W.2d 604 (Tex.Civ.App.—Texarkana 1959). These points are overruled.

Appellants’ points 7, 8, 9, 10 and 11 are that the trial court erred in holding (7) that plaintiffs discharged their burden of proof and/or proved a good, indefeasible record title in and to the 15 foot strip of land in controversy, because there was no evidence of record title, adverse possession, or a prior possession by plaintiffs; (8) insufficient evidence as to the above; and (9) that the court erred in overruling defendants’ motion for judgment where there was no evidence or insufficient evidence as to all of the above contentions. Point 10 is that the trial court erred in holding that plaintiffs and their predecessors in title have always been in possession of the strip of land in question, using, claiming and enjoying the same exclusively, openly, peaceably, continuously and adverse of all persons as there is no evidence (and Point 11 there is insufficient evidence) to support such finding. Appellants’ points 7, 8 and 9 are multifarious and should not be considered. Appellees concede that they made no attempt to prove title from the sovereignty of the soil or by limitation. Appel-lees claimed and the trial court found that they had title in themselves by and through a common source, and by proof of prior possession. There was evidence that the State of Texas had not exercised possession or control of the disputed strip. We have examined all of the voluminous record and exhibits introduced into evidence, which substantiates plaintiffs’ claim of possession to the disputed strip of land and the State’s lack of possession and control. We hold that there is sufficient evidence to support the trial court’s judgment of prior possession by the plaintiffs. Appellees’ points are overruled.

Appellants’ 12th point is that the trial court erred in failing to give any effect to the judicial admissions made by appellees in introducing the plea of intervention of the State of Texas into evidence. The State claims that when the plaintiffs introduced the State’s plea of intervention, that it was for “all purposes” and therefore the plaintiffs are bound by the State’s pleadings. We have carefully reviewed all of the testimony concerning the offer of this pleading into evidence, the objections and its admission. We conclude that it was not the purpose of the court nor the parties to the suit that the same be introduced into evidence at that time for all purposes. The State was careful to see that the pleading was introduced for a limited purpose and subject to the prior stipulations and the orders of the court. The plaintiffs’ offer for the purpose of admission and for other limited purposes was clearly reflected from the record. It was the understanding of all of the parties and the court that the pleadings were being admitted for the limited purpose offered by the plaintiffs to show the State's claim or pretended claim to the easement. It was further obvious that the court was honoring the State’s admonition that the plea of intervention was still subject to the stipulations of counsel and the orders of the court. This point is overruled.

Appellants’ points 13 through 20 are evidence points and are closely related and are presented together by the appellants. • Point 13 is directed to the court’s failure to admit into evidence the testimony of witness Evans to the effect that the Commissioners Court of Hidalgo County had transferred a 70-foot right of way to the State of Texas. There was testimony by the Deputy County Clerk that she had searched the minutes of the court and had not been able to find any action of the commissioners court designating any actual width of the right of way to the road in question. Appellants offered witness Evans’ testimony to establish that the commissioners court had voted a 70-foot right of way. This evidence was cumulative of other evience in the record as to the width of the right of way and of the transfer of the right of way to the State of Texas. We hold that if the court was in error that such error was harmless. Rule 434, Texas Rules of Civil Procedure. All of appellants’ other points concern the sufficiency and preponderance of the evidence as to the disputed strip of land in question. We have considered all of these points and are satisfied that the evidence is sufficient, legally and factually to show plaintiffs’ title and right of possession to the land in controversy and to uphold the trial court’s judgment that the State did not prove an easement by prescription. Appellants’ points are overruled.

Judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

Appellants in their motion for rehearing have renewed all of their original points of error and have filed thirteen requests for findings of fact and conclusions of law under Rules 451 and 453, T.R.C.P. In our original opinion we stated that this particular case turned on the question of whether or not the State has a superior title to the narrow strip of land in question and is entitled to possession of this property. The State’s claim was by prescriptive use. We held that the State did not prove that it had acquired an easement over this land by prescription.

We do not agree with appellants’ opening statement that a number of facts listed by appellents are undisputed in the record. Many of the facts concerning possession of the area in question and the width of the right of way were in sharp dispute between the parties.

We have again reviewed appellants’ points and are of the opinion that we originally passed on and stated our findings and conclusions as to all points of error contained in appellants’ brief. We expressly held that the evidence supports the trial court’s findings and conclusions of law that the defendant public officials were acting as individuals and their action was not that of the State of Texas. We again re-affirm the procedure set forth by the Supreme Court in State v. Lain, supra, and believe that the trial court followed such procedure correctly. We expressly found that there was evidence sufficient to uphold the judgment of the trial court that the State of Texas had not exercised possession or control of the disputed strip. We again find that there was sufficient evidence of appellees’ continued possession and that the trial court was warranted in finding that appellees had prior possession of the strip in question. We reviewed the voluminous record and recited in our original opinion that the County of Hidalgo did not acquire by condemnation the strip of land in question. The State of Texas’ claim followed that of the County’s. The evidence was sufficient to uphold the trial court’s finding that the appellees had title in themselves and had proved the same through a common source and by prior possession.

The State’s fifth request that we find whether or not the State’s pleadings admit record title in Carl Edmund, is immaterial to a correct disposition of this appeal. There is no necessity for anyone to prove that a common source has record title. Davis v. Lund, 41 S.W.2d 57 (Tex.Com.App.1931, Op. app. by the Sup. Ct.); McBride v. Loomis, 212 S.W. 480 (Tex.Com.App.1919, Op. adopted and entered as judgment of the Supreme Court) ; Temple Lumber Co. v. Arnold, 14 S.W.2d 926 (Tex.Civ.App1929, wr. dism.); Jackson v. Jackson, 114 S.W.2d 644 (Tex.Civ.App.1938, wr. dism.); Krasa v. Derrico, 193 S.W.2d 891 (Tex.Civ.App.1946).

We have carefully reviewed all of these requests of findings and are satisfied that our original opinion has amply disposed of all the points of error and has recited all findings material to the judgment of the court. It is not the duty of the Court of Civil Appeals on a motion for additional findings of fact to recite evidence or make legal conclusions which may conflict with findings heretofore made by the Court. See Prasek v. Dudley, 395 S.W.2d 876, on rehearing (Tex.Civ.App. — Corpus Christi 1965) and cases therein cited. We here repeat and confirm the finding's and conclusions stated in our original opinion. We find that the evidence supports the trial court’s findings and that there was no reversible error committed by the trial court.

Appellants’ motion for rehearing is overruled.

      . Once the State voluntarily makes itself a party to a lawsuit any matter by way of defense or cross-bill may be urged against it and a judgment will bind it. State v. Martin, 347 S.W.2d 809 (Tex.Civ.App. — Austin, 1961, ref., n. r. e.); Commonwealth of Massachusetts v. Davis, 160 S.W.2d 543 (Tex.Civ.App.— Austin 1942) reversed on other grounds, 140 Tex. 398, 168 S.W.2d 216; State v. Stanolind Oil & Gas Co., 190 S.W.2d 510 (Tex.Civ.App.1945 err. ref’d).

      . The petition of the State claimed title from, the then owners of the land as set forth and described in the petition for condemnation. The petition for condemnation introduced into evidence showed the then record owner 1o be Carl Edmund.


author: DIXON, Chief Justice.

text:
    POLK TERRACE, INC., Appellant, v. Jerome M. CURTIS et ux., Appellees.
    No. 16991.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1967.
    Rehearing Denied Dec. 29,1967.
    Jack D. Eades, Clark, West, Keller, Clark & Ginsberg, Dallas, for appellant.
    Robert J. Shoemaker, McKool, McKool & Jones, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from a judgment of $7,750 awarded to appellees Jerome M. Curtis and wife, Natalie W. Curtis, against appellant Polk Terrace, Inc. as damages because of alleged false representations and breach of implied warranty that appellees claim induced them to purchase a dwelling house. The judgment is based on jury findings favorable to appellees.

Appellees first saw the house and contacted Don Weems, appellant’s salesman, on or about June 1, 1959. On June 16, 1959 they signed a contract to purchase the property. On July 1, 1959 they moved into the house and took possession of the property, though their loan had not yet been approved or a warranty deed executed. On August 19, 1959, their loan having been approved, the deal was closed and a warranty deed was executed and delivered to them.

Appellee Jerome Curtis testified that when he and his wife contacted Don Weems about June 1, 1959 Weems assured him that the house had “a quite proper foundation at that time and that it was quite substantial ” So far as Curtis could remember this was the only occasion when they discussed the construction of the house. Curtis did not remember whether Weems told him the house was of the highest and best quality.

Mrs. Curtis testified that in a separate conversation with her Weems told her that the house was of “grade A construction” and “that the house would be up forever.”

Appellees further testified that during the first year of their occupancy defects began to appear. Mortar joints were cracking in the brick at different points of the house. The sheetrock was cracking inside the house. A list of defects was sent to appellant, who had them repaired. But cracks continued to appear.

In its brief appellant lists ten defects and the dates appellees acquired knowledge of them and became concerned about the construction of the house. In their brief appellees agree that six of these defects and dates are correct. They are as follows:

Item No. 2. In 1960 appellees observed bricks pulling loose around the top of the right side of the garage door.

Item No. 3. In 1961 the walk at the southwest corner of the house had settled.

Item No. 4. In the summer of 1963 the driveway at the southwest corner of the house had settled.

Item No. 8. In 1960 and again in 1961 masonry cracked under a window on the northeast corner of the house after it had been repaired.

Item No. 9. In 1960, 1962 and possibly in 1963 masonry cracked under both windows on the east side of the house.

Item No. 10. In 1961 and 1962 masonry cracked and pulled out under the front bedroom windows on the south side of the house.

As to the four items concerning which the parties do not agree we shall, for present purposes, rely on the testimony of appellee Jerome Curtis:

Item No. 1. In May of 1963 appellees observed bricks pulling loose around the front door.

Item No. 5. In the summer of 1963 ap-pellees observed a hairline crack extending diagonally in the southwest corner of the house which settled. This according to ap-pellees was a foundation defect.

Item No. 6. In May 1963 a crack existed around the utility area.

Item No. 7. In the summer of 1963 a concrete beam cracked below the sliding glass door on the north side of the house. Curtis referred to this also as a foundation crack.

In 1963, in an effort to remedy the defects, appellees built planter boxes 20 inches high around most of the foundation, the bottom of the boxes being at ground level. This was done after appellee Jerome Curtis consulted an employee of appellant who happened to be a neighbor living across the street. However, Curtis testified that the building of the boxes was his own idea. He also testified that all the cracks were apparent before he built the planter boxes in 1963 — that no new cracks developed after he built the boxes, but the old cracks widened and worsened after the boxes were built.

Appellant's first point on appeal is that the trial court erred in overruling a motion for judgment non obstante veredicto, the grounds of the motion being that as a matter of law appellees had knowledge for more than two years prior to October 1, 1965 of facts that would cause a reasonably prudent person to make inquiry which would have led to a discovery of the alleged false representations; therefore their cause of action was barred by the two year statute of limitations. Suit was not filed by appellees until October 1, 1965, six years and four months after the alleged false representations were made on or about June 1, 1959. Curtis himself testified that he had become seriously concerned in the summer of 1963 about the cracks which had appeared in the house.

Appellees in answer to the above charge say that they did not discover appellant’s fraud until the fall of 1965, after they had hired an expert to investigate, and that they filed suit immediately thereafter.

We agree with appellant. The applicable rule as stated by our Supreme Court is as follows:

“ * * * the statute of limitation begins to run from the time the fraud is discovered, or could have been discovered by the defrauded party by the exercise of reasonable diligence.” (Emphasis ours.) Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440, 128 A.L.R. 757 (1940).

See also Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263 (1941) and Carver v. Moore, 288 S.W. 156 (Tex.Com.App., 1926).

It is our opinion that as a matter of law in the light of their own testimony, appellees for more than two years prior to the institution of their suit on October 1, 1965 had knowledge of such facts as would cause a reasonably prudent person to make inquiry which would have led to a discovery of the fraud. In White v. Bond, 362 S.W.2d 295 (Tex.Sup.1962), it is said, “Knowledge of such facts is in law knowledge of the fraud itself.” See also Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 (1962); Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933); Lindsey v. Dougherty, 60 S.W.2d 300 (Tex.Civ.App., Amarillo 1933, writ ref’d). Appellant’s first point on appeal is sustained.

In its thirteenth point appellant says that as a matter of law there was no issue in this case on implied warranty, therefore it was error to submit Issue No. 10 which inquired whether the house was constructed of material and workmanship suitable for the purpose for which it was intended to be used. Again we agree with appellant. Art. 1297, Vernon’s Ann.Civ.St., expressly provides that certain covenants, “and none other” in instruments of conveyance using the words “grant” or “convey” are implied. The implied warranty for which appellees contend is not included among those specified in the statute. Therefore an action for breach of an implied warranty of fitness and suitability of the property conveyed does not lie in this case. Westwood Development Co. v. Esponge, 342 S.W.2d 623, 628 (Tex.Civ.App., San Antonio 1961, writ ref’d n. r. e.).

In its second point appellant says there was insufficient evidence to support the jury’s finding that appellees did not have knowledge of facts which would cause a reasonably prudent person to make inquiry which would have led to a discovery of the falsity of the representations. If we felt that we might be mistaken in sustaining appellant’s first and thirteenth points we would sustain appellant’s second point and remand this cause for another trial. However, we have concluded that we must reverse and render judgment for appellant since we have sustained appellant’s first and thirteenth points.

In its third to twelfth points inclusive and its fourteenth point appellant attacks certain of the jury’s findings on the ground that there was either no evidence to support submission of the issue in question or insufficient evidence to support the finding; appellant also challenges the authority of Weems, its agent, to bind it by his representations ; challenges the measure of damages as submitted by the court, and points out that on October 5, 1965 appellees were divested of title to the property in question by foreclosure of a first lien mortgage. We overrule these points either because they do not involve error, or if there was error it was harmless under the circumstances.

Having sustained appellant’s first and thirteenth points we reverse the trial court’s judgment and render judgment for appellant that appellees take nothing by their suit.

Reversed and rendered.

      . There is a sharp conflict in the evidence as to whether the house was in fact defectively constructed of inferior materials. But in view of the jury’s verdict we shall not set out the testimony supporting appellant’s contention.

      . Since the parties do not agree as to the last four of the above specified items or where Curtis’ testimony about them may be found in the record, we deem it advisable to name the pages in the Statement of Facts where the supporting testimony appears: Item No. 1 at pp. 32, 33; Item No. 5 at pp. 12, 34; Item No. 6 at pp. 11, 34-35; Item No. 7 at pp. 37-38, 39; Curtis’ testimony that all the cracks were apparent before he built the planter boxes in 1963 will be found at p. 40.


author: GREEN, Chief Justice.

text:
    Rebecca B. HUCKABEE, Individually and as Independent Executrix of the Estate of Cora L. Baird, Deceased, Appellant, v. Gladys HANSEN, Appellee.
    No. 336.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dec. 14, 1967.
    R. D. Cox, Jr., of Cox & Patterson, Mc-Allen, for appellant.
    J. Perry Jones, of Jones & Flores, Mc-Allen, for appellee.
   OPINION

GREEN, Chief Justice.

Cora L. Baird died October 16, 1964, leaving a will executed by her on May 25, 1962. This will was duly ordered to probate and appellant Rebecca B. Huckabee was appointed Independent Executrix of the estate, as provided in the will.

This suit filed in the district court of Hidalgo County by appellee is for a declaratory judgment seeking a construction by the court of a provision of the will devising all stocks, bonds and other securities owned by deceased to appellee.

The will is short, containing four paragraphs. The first has the customary provisions concerning payment of deceased’s debts. The fourth provides for the appointment of appellant as independent executrix, and has the usual language concerning limited proceedings in the probate court

Paragraphs II and III read as follows:

([
“I give, devise and bequeath to my sister, MRS. GLADYS HANSEN of Akron, Ohio, all stocks, bonds and other securities that are owned by me at the time of my death. If my said sister does not survive me, then I give all of said stocks, bonds and other securities to her children in equal shares.
III.
“All the remainder of my estate and property, other than the stocks, bonds and other securities mentioned in the next preceding Paragraphs II, I give, devise and bequeath as follows: One-half (1/2) thereof to my sister, MRS. GLADYS HANSEN of Akron, Ohio; one-half (1/2) thereof to MRS. REBECCA B. HUCKABEE of Coleman, Texas. If either be deceased at my death, then I give the share she would receive if living to her children, share and share alike.”

At the time of her death, deceased’s estate consisted principally of 105 shares of common stock in General Public Utilities Corp. of the value of $4,121.35, 11 shares of other stock valued at $49.50, no bonds, a savings account No. ssl816 in the sum of $12,843.63 with Valley Federal Savings & Loan Association of McAllen, bearing interest at 4% per annum and an interest bearing savings account with First National Bank of McAllen of $234.72. The total of her property at her death was valued by the appraisers at $21,033.30, so it is seen that the stocks and the savings accounts together constituted approximately 80% of the estate,

The controversy between the parties is over the construction of the phrase “all stocks, bonds and other securities” in paragraph II of the will; i. e., whether the two savings accounts passed to appellee as “and other securities”, or whether these accounts passed in equal shares to each party under paragraph III.

Appellant and appellee each filed a motion for summary judgment in the trial court. The court granted the motion of appellee, and rendered judgment that the two savings accounts were “other securities” which passed to appellee under paragraph II of the will. Appellant’s motion was denied.

Appellant on this appeal from such judgment by five points of error presents the contention that the trial court erred in its construction of the term “all stocks, bonds and other securities” and in refusing to hold that the savings accounts passed under the provisions of paragraph III of the will instead of paragraph II. Appellee, by her single point in reply, contends that the court properly held that the two accounts were securities and passed to appellee under paragraph II.

The parties are in agreement that this case should be decided upon the basis of the language of deceased’s will. It is further agreed that the decision must be based upon the intent of the testatrix as evidenced by such language. Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943, 946; Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97; Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885; Haile v. Holtzclaw, Tex., 414 S.W.2d 916. In such case, as stated in Huffman v. Huffman, supra, 339 S.W.2d p. 888, “The intent must be drawn from the will, not the will from the intent.”

In Avis v. First Nat. Bank of Wichita Falls, 141 Tex. 489, 174 S.W.2d 255, p. 258, the court says:

“Another rule in the construction of wills, which merits serious consideration, is stated by Corpus Juris, vol. 69, p. 80, Wills, § 1136, as follows: ‘* * * where the meaning of the language used in the will has been settled by usage and sanctioned by judicial decision, it is presumed to be used in the sense that the law has given to it, and should be so construed, unless the context of the will shows a clear intention to the contrary.’ ”

Black’s Law Dictionary, Fourth Edition, defines “Securities” as “Evidences of debts or of property. State v. Allen, 216 N.C. 621, 5 S.E.2d 844, 845, 847. Evidences of obligations to pay money or of rights to participate in earnings and distribution of corporate, trust, and other property. Oklahoma-Texas Trust v. Securities and Exchange Commission, C.C.A. 10, 100 F.2d 888, 890.”

We copy from 79 Corpus Juris Se-cundum, p. 948, Security; Securities, as follows :

“The words ‘security’ and ‘securities’ usually are not applied to money on deposit in a national bank or trust company, but are applied to deposits in savings banks, and also to pass books evidencing savings deposits and to certificates of deposit. While it has been said that securities are mere choses in action, the word ‘securities,’ in its ordinary acceptation, and in its broadest sense, includes bonds, certificates of stock or deposit, notes, and bills of exchange as stated above, and other promises to pay money, and other evidences of debt, of indebtedness, or of property, and not mere choses in action.”

See text for authorities there cited.

Volume 38A Words and Phrases, Permanent Edition, devotes 41 pages to definitions drawn from the various courts of the term “Securities”.

We conclude from a study of these and other authorities that in its broadest sense, the term “securities” can mean any and all evidences of debt, such as promissory notes, Truck Terminals, Inc. v. C.I.R., 9 C.C.A., 314 F.2d 449, 455, a check, Hawkins v. Sanford, Dist.Ct., Atlanta Div., 53 F.Supp. 988; travelers checks, Pines v. United States, 8 C.C.A., 123 F.2d 825; personal loan notes, Securities and Exchange Commission v. Addison, U.S.Dist.Ct.N.D.Tex., 194 F.Supp. 709; all classes of investments, In re McGraw’s Estate, 337 Pa. 93, 10 A.2d 377; claims against closed banks evidenced by pass books or other instruments, Rieger v. Commissioner of Internal Revenue, 6th C.C.A., 139 F.2d 618; savings banks passbooks or accounts, J. S. Lang Engineering Co. v. Commonwealth, 231 Mass. 367, 120 N.E. 843; Trustees of Protestant Episcopal Church, etc. v. Equitable Trust Co., 26 Del.Ch. 427, 24 A.2d 327; Old Colony Trust Co. v. Hale, 302 Mass. 68, 18 N.E.2d 432, 120 A.L.R. 1207; and of course corporate stocks* bonds, government bonds. In enumerating the above, we do not imply that they are the exclusive intendments of term securities in its broadest meaning; we refer to 38A, Words and Phrases, supra, for more extensive inclusions.

From the above, we conclude that the two savings accounts in question were at the time of her death, securities. If testatrix had devised to appellee “all securities owned by me at the time of my death” with no other circumstances to show a contrary meaning, the savings accounts, in our opinion, would have passed under such bequest.

But testatrix used the language “all stocks, bonds and other securities” in the bequest to appellee in paragraph II, and also in paragraph III in excluding “the stocks, bonds and other securities” from the remainder of her estate devised equally to appellant and appellee. It is our opinion that by the use of the specific language “stocks and bonds” immediately preceding the general expression “and other securities” testatrix evidenced her intent to restrict the meaning of “securities” to those of the same nature as stocks and bonds, under the recognized legal principle that “Where words of a general nature follow or are used in connection with the designation in a will of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation, under the rule of ‘ejusdem generis’.” 61 Tex.Jur.2d 252, Wills, § 131, citing Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268; Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054; Erwin v. Steele (Tex.Civ.App.) 228 S.W.2d 882, wr. ref., n. r. e.; Ellis v. First Nat. Bank (Tex.Civ.App.) 311 S.W.2d 916, wr. ref., n. r. e. See, also, Carr, Attorney General of Texas v. Rogers, Tex.Sup.Ct., 383 S.W.2d 383, 387, and authorities cited.

Stocks and bonds represent the type of securities that are the subject of everyday transactions by way of bargain, sale, transfer and exchange. They are dealt with daily in the financial and commercial market. Moneys deposited in a savings account are not exchanged and dealt with in the commercial world as are stocks, bonds, debentures, mortgages, and instruments of similar nature, and although an interest bearing savings account is a security in the broad sense of such term, it is not to be considered in the same category as shares of stock or bonds.

Both parties agree that the will is unambiguous, and that the intent of testatrix should be reached by construing the will within its four corners as a matter of law. It is our opinion that as reflected by the provisions of the will it was not the intention of testatrix to bequeath to appellee the two savings accounts in issue, but that she intended that they should be devised according to the provisions of paragraph III of her will.

The judgment sustaining appellee’s motion for summary judgment is reversed, and judgment is here rendered overruling ap-pellee’s motion and sustaining appellant’s motion for summary judgment, and construing the disputed portion of the will in accordance with this opinion.

Reversed and rendered.


author: TIREY, Justice.

text:
    E. W. WHICKER, Appellant, v. G. A. TAYLOR, d/b/a G. A. Taylor Company, Appellee.
    No. 4672.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1967.
    Rehearing Denied Jan. 4, 1968.

      Mitchell D. Stevens, Dallas, for appellant.
    Henry Klepak, William B. Pasley, Dallas, for appellee.
   OPINION

TIREY, Justice.

This appeal is by defendant Whicker from an order of the County Court at Law No. 3 of Dallas County, entering judgment nunc pro tunc in Cause No. CC-66-5643-C, styled G. A. Taylor, d/b/a G. A. Taylor Company v. W. E. Whicker. The order appealed from was dated May 8, 1967.

Plaintiff went to trial on his original petition, which was a suit for the balance owing on an open account amounting to $400.00, and for attorney’s fees under Article 2266, Vernon’s Ann.Tex.Civ.St. The account was duly verified.

The original judgment was entered on October 24, 1966, and the recitals in the judgment stated that the defendant, though duly cited and served, failed to answer, and the court awarded plaintiff judgment in the sum of $400.00 with legal interest against W. E. Whicker, plus $150.00 attorney’s fees. The transcript shows that defendant filed his original answer, including a plea of general denial, on October 27, 1966, which was three days after the original judgment was entered.

On January 17, 1967 plaintiff filed his motion to enter judgment nunc pro tunc and, as grounds for the motion, set up that E. W. Whicker was the correct name of the defendant instead of W. E. Wicker, alleging that a clerical error had been made in this respect, and asked the Court to correct it.

Thereafter, on February 24, 1967, the Court granted the motion and corrected the judgment, and in the judgment there is a recital to the effect that the Court is of the opinion that E. W. Whicker and W. E. Wicker are one and the same person, and that defendant E. W. Whicker was personally served with citation in this cause, and had an opportunity to defend against the plaintiff’s asserted cause of action, but failed to do so prior to the entry of the judgment on October 24, 1966; that the mistake made in the initials of defendant Whicker constitutes a clerical error and not a judicial error, and entered judgment in favor of plaintiff against E. W. Whicker for the sum of $400.00, together with $150.00 attorney’s fees and costs.

Appellant’s Point 1 is that the Court erred in entering the judgment nunc pro tunc on May 8, 1967. We overrule this contention and affirm the judgment of the trial court. It is well settled that a trial court has power to amend a judgment at any time to correct clerical errors and correctly recite the true action taken. The appropriate method for accomplishing this is the entry of a judgment nunc pro tunc. See Rule 317, Texas Rules of Civil Procedure. See also 33 T.J.2d, par. 146, p. 672. See also Kendall v. Johnson, Tex.Civ.App., 212 S.W.2d 232, n. w. h. Much has been written on the above matter, but we see no need to cite further cases.

Appellant’s Point 2 is that the Court erred in refusing to allow defendant Whicker an opportunity to present evidence of defenses to the merits of plaintiff’s cause of action. We have considered this point carefully, and it is overruled.

The judgment of the trial court is affirmed.


author: PEDEN, Justice.

text:
    Elzora Thompson WINDOM, Appellant, v. Homer WINDOM, Jr., Appellee.
    No. 15133.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 21, 1967.
    Allie L. Peyton, Houston, for appellant.
    John O. Hoyt, Humble, for appellee.
   PEDEN, Justice.

This cause was filed by appellee in Probate Court to determine certain heirship rights; from an adverse judgment in that court, he appealed to the District Court, where judgment was entered for appellee based on jury findings that a common law marriage had existed.

Appellant’s first point avers that the trial court permitted a Mrs. Phillips to testify to conversations and transactions between herself and the decedent despite timely objections that such testimony was made inadmissible by the Dead Man’s Statute, Article 3716, Vernon’s Annotated Civil Statutes. We find that the trial court overruled only two objections based on Article 3716. The first was made when appellee’s attorney asked Mrs. Phillips, whom he had called as a witness, “Did you ever live with him ?” (referring to the decedent). The witness answered that she had. She then answered seven other related questions to which no objections were leveled.

Appellant’s other objection based on Article 3716 which the trial court overruled, was directed to this question: “When you first started to live with Homer what, if anything, did he say about your relationship ?” The witness’ answer was to the effect that they were going to have a preacher marry them later, but that he said nothing about what they were going to do up to that time. Such an answer was certainly not harmful to appellant’s contention that a common law marriage between the witness and the decedent did not exist.

No objection was made to the next few questions, and when the next objection was made, the trial judge on his own motion caused the jury to be retired. He inquired into Mrs. Phillips’ interest in the case, and then instructed the jury as follows:

“Ladies and gentlemen, this witness has been interrogated on perhaps three or two occasions concerning, first, the conversation with the decedent, Homer Windom, Sr., and second, transactions that she had with such decedent, and which the defense has objected to * * * The Court overruled the objections. On further examination of the facts, I have decided the objections were good. Therefore you will not give any consideration to the testimony heretofore given by this woman to the conversations with the decedent, and any transactions. The testimony in this respect is stricken from the record.”

No further instructions were requested; a motion for mistrial was not filed. Specifically, the trial court was not asked to instruct the jury as provided by Rule 182-a, Texas Rules of Civil Procedure, and no objection was made concerning his failure to do so. After examining the entire record and noting in particular the trial judge’s instruction to the jury as set out above, we find that the overruling of appellant’s two objections based on Article 3716 was not reasonably calculated to cause and probably did not cause rendition of an improper verdict. Rules 434, 503, Texas Rules of Civil Procedure; Folse v. Monroe, 190 S.W.2d 604 (Tex.Civ.App., Beaumont, 1945, ref., w. m.).

By appellant’s second point it is asserted that her cause was severely prejudiced by continued attempts of appellee’s counsel to introduce evidence rendered incompetent by the Dead Man’s Statute even after the court had instructed the jury to disregard such testimony.

We cannot say that some six or seven questions asked by appellee’s counsel constitute no such attempt, but the trial judge promptly sustained appellant’s objections, and usually did so without requiring that the grounds for them be stated.

We hold that the conduct complained of did not cause the jury to render an improper verdict.

Appellant’s allegation that the evidence is insufficient to support the jury’s findings as to the elements of a common law marriage is not well taken. Even if we disregard all the testimony of Mrs. Phillips as to the common law marriage, there is sufficient testimony from each of three other witnesses to support the verdict.

The judgment of the Trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    Edward Lee HICKS, d/b/a Hicks Rubber Company, Appellant, v. Mary Dell HOOVER, Appellee.
    No. 4674.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1967.
    Rehearings Denied Jan. 4, 1968.
    See, also, Tex.Civ.App., 410 S.W.2d 534.
    Cantey, Hanger, Gooch, Cravens & Scarborough, Jack C. Wessler, Ira Butler, Jr., Fort Worth, for appellant.
    Worsham & Forsythe, Dallas, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Hicks from summary judgment against him for $6972.

Defendant Hicks purchased the stock of Star Tire Company on August 5, 1963 without complying with the Bulk Sales Act (Art. 4001 Vernon’s Ann.Tex.Civ.St.). Plaintiff was a creditor of Star Tire Company for $6972 due under a lease contract. Thereafter plaintiff sued Star Tire, and on July 27, 1964, secured judgment for $6972 plus $2250 attorney's fees.

On December 29, 1965 plaintiff sued defendant Hicks for the $6972 plus $2250 attorney’s fees, on account of Hicks purchasing the stock of Star Tire without compliance with the Bulk Sales Act. Both plaintiff and defendant moved for summary judgment. The trial court entered summary judgment for plaintiff for $6972 against defendant; but denied judgment for the $2250 attorney’s fees.

Defendant appeals, contending the trial court erred in rendering summary judgment against him, asserting plaintiff’s action based upon breach of the Bulk Sales Act, is barred by the 2 year Statute of Limitations (Art. 5526 V.A.T.S.).

Plaintiff, by cross-point, asserts the trial court erred in not rendering summary judgment for the $2250 attorney’s fees.

Defendant contends the 2 year Statute of Limitations bars the action; plaintiff asserts the action controlled by the 4 year Statute of Limitations, and hence was not barred.

Article 5526 V.A.T.S. (the 2 year Statute) provides :

“There shall be commenced and prosecuted within 2 years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
“ * * * 2. Actions for detaining the personal property of another, and for converting such property to one’s own use. * * * ”

Article 5529 V.A.T.S. (the 4 year Statute) provides:

“Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

Defendant asserts since the purchaser of a stock of goods without complying with the Bulk Sales Act, converts such property, the 2 year Statute is applicable. Defendant’s position would be tenable except for the fact that the property “converted” by the buyer failing to comply with the Bulk Sales Act, is “trust” property, and the buyer becomes a “trustee” for the creditors of the Seller. Gardner v. Goodner Wholesale Gro. Co., 113 Tex. 423, 256 S.W. 911; Adams v. First State Bank, Tex.Civ.App. (n. w. h.), 383 S.W.2d 223; Owosso Carriage & Sleigh Co. v. McIntosh & Warren, 107 Tex. 307, 179 S.W. 257, L.R.A. 1916B, 970.

And a suit primarily to declare and establish a trust and to recover title to trust property or damages for conversion thereof, is not governed by the 2 year Statute of Limitations, but is governed by the 4 year Statute of Limitations. Peek v. Berry, 143 Tex. 294, 184 S.W.2d 272, 156 A.L.R. 949.

We think the trial court correct in entering judgment for plaintiff for the $6972.

Plaintiff in his cross-point asserts the trial court erred in not rendering him judgment for the $2250 attorney’s fees.

Plaintiff was owed the $6972 by Star Tire on a lease contract on November 5, 1963, the date defendant bought the stock of merchandise from Star Tire, without complying with the Bulk Sales Act. Thereafter plaintiff sued Star Tire and on July 27, 1964 recovered judgment against Star Tire for the $6972 plus $2250 attorney’s fees.

The $2250 attorney’s fees were not owed by Star Tire to plaintiff at the time defendant purchased the merchandise, and the trial court did not err in refusing plaintiff judgment for this amount against defendant.

Plaintiff’s cross-point is overruled.

Affirmed.


author: WILSON, Justice.

text:
    C. Cody RAY, Appellant, v. Joseph F. PETERS, Appellee.
    No. 4652.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1967.
    Hugh Higgins, Cleburne, for appellant.
    Walker, Baker & Altaras, Jack C. Altaras, Cleburne, for appellee.
   OPINION

WILSON, Justice.

Plaintiff-appellant sought to recover judgment for money paid to defendant. In a non-jury trial the court determined that defendant was not indebted to plaintiff; but that the latter owned a half interest in realty, title to which was adjudged to be in him. No findings of fact were made or requested. We affirm.

Decision in this case is complicated by the difficulty in determining the character of plaintiff’s cause of action and by the nature of his points. Plaintiff alleged defendant received payments of $2500, $1100 and $92.10 from him “with the express promise by defendant that said amounts represented plaintiff’s investment toward a medical clinic to be built on a certain lot in Alvarado, Texas; that defendant’s proposal to plaintiff was that the parties were to be equal partners in said venture”; that defendant later stated plans to build the clinic were abandoned; that defendant had refused his demands to refund the money paid; that the $92.10 payment was for a survey of the clinic site, which “did not benefit plaintiff in any manner.” He prayed judgment for these sums and interest paid on money borrowed by him, pleading that “pursuant to the proposal by defendant of said partnership”, he had borrowed the money to invest in the venture.

Plaintiff’s initial points are to the effect that the court erred in holding plaintiff and defendant had formed a partnership or that the land, an interest in which was awarded to him by the judgment, was a partnership asset. The argument is there is no evidence to support these conclusions.

These points must be overruled. The court did not make the determinations complained of, and they are not necessarily implicit in the judgment. Had they been, plaintiff’s pleadings alone would have justified them. His allegations are that he paid the money to defendant upon the express promise by the latter that it constituted investment in a medical clinic in which they “were to be equal partners”, and that “pursuant to the proposal by defendant of said partnership”, and in reliance thereon, he borowed the money invested therein. The admissions in the pleading are effective to establish the partnership, irrespective of whether there is any evidence on the issue. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, 105; Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515; 45 Tex.Jur.2d Sec. 82, p. 517; id., Sec. 86, p. 527.

Even if the pleading had not constituted an admission of partnership, the evidence was adequate to establish that fact, and that the realty was a partnership asset. Plaintiff testified his investment represented his “interest in a clinic to be built” on the land in question, and “it was supposed to be a fifty-fifty venture”; that he and defendant “were to be fifty-fifty partners.” Defendant testified they were to be “fifty-fifty partners” as owners of the planned clinic.

Plaintiff’s third point is that his money “should have been returned” in “equity and good conscience”. This appeal to equitable relief invokes the maxim, “equity follows the law”, under which equity will not create a remedy where there is no legal liability. 27 Am.Jur.2d, Equity, Secs. 120, 123.

The trial court apparently concluded, as the evidence authorizes, that defendant, who had record title, held the equitable title to the realty as trustee for plaintiff’s benefit; and that the sums advanced by plaintiff represented the purchase price of his interest. See Art. 6132b, Sec. 21(1), Vernon’s Ann.Civ.St.

Plaintiff testified the venture was “abandoned by slow death.” On dissolution of a partnership each partner is entitled to share in partnership assets in proportion to his investment. 44 Tex.Jur.2d Sec. 193, p. 518.

There is no complaint by appellee as to that portion of the judgment adjudging an undivided one-half interest in the realty to be vested in plaintiff.

The judgment is affirmed.