author: FANNING, Justice.

text:
    TRINITY STEEL COMPANY, Inc., Appellant, v. MODERN GAS SALES & SERVICE CO., Inc., Appellee.
    No. 7645.
    Court of Civil Appeals of Texas. Texarkana.
    June 29, 1965.
    Rehearing Denied July 20, 1965.

      Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    James E. Coleman, Jr., Carrington, Johnson & Stephens, Dallas, for appellee.
   FANNING, Justice.

Appellant, Trinity Steel Company, Inc., a Texas Corporation, with its principal office and place of business in Dallas, Dallas County, Texas, filed suit in a District Court of Dallas County, Texas, on a sworn account, against appellee, Modern Gas Sales & Service Co., Inc., a foreign corporation, with its principal office and place of business in Lakewood, Ocean County, New Jersey, for $15,000, the purchase price of a propane transport trailer, purchased by appellee from appellant. Appellant served process on appellee by serving the Secretary of State of Texas, pursuant to Art. 2031b, Vernon’s Ann.Tex.Civ.St. Appellee, pursuant to Rule 120a, Texas Rules of Civil Procedure, filed its special appearance objecting to the trial court’s in personam jurisdiction over appellee on the ground that appellee was not amenable to process issued by a Texas court. The trial court, after hearing the evidence adduced and the stipulations made, sustained appellee’s special appearance, discharged appellee from the cause, and decreed that appellant take nothing by its action. Appellant has appealed.

Appellant on appeal presents a single point wherein it contends that the trial court erred in sustaining appellee’s special appearance because appellee was amenable to process issued by Texas courts under Art. 2031b, V.A.T.C.S. Appellee by its single counter point contends that the trial court properly sustained appellee’s motion to the jurisdiction in that appellee was not amenable to service of process under Art. 2031b, V.A.T.C.S., because it had not had the “minimum contact” with the forum State of Texas so as to satisfy the due process requirements of the 14th amendment to the United States Constitution.

For a comprehensive analysis of Art. 2031b, V.A.T.C.S., and Rule 120a, T.R.C.P., see Thode, In Personam Jurisdiction; Art. 2031b, the Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Texas Law Review 279, 303-310 (1964). Also in this connection see Wilson, In Personam Jurisdiction over Non-Residents; An Invitation and a Proposal, 9 Baylor Law Review 363 (1957); Counts, More on Rule 120a, 28 Texas Bar Journal, 95, 96, (Feb. 1965).

From the evolution of service on non-resident defendants in in personam actions from Pennoyer v. Neff, (1877), 95 U.S. 714, 5 Otto 714, 24 L.Ed. 565, through International Shoe Co. v. State of Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; and Hanson v. Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, we think it can be said that it is now the law that it is essential in each case that there be some act by which the defendant purposefully avails (himself) of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, and that he have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice, and furthermore consideration must be given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties and the basic equities of the parties.

The factors to be considered in determining whether or not there have been minimum contacts with the forum are stated in Hearne v. Dow-Badische Chemical Company, 224 F.Supp. 90 (S.D.Tex.1963) as follows:

“(1) The nature and character of the business;
(2) The number and type of activities within the forum;
(3) Whether such activities give rise to the cause of action;
(4) Whether the forum has some special interest in granting relief; and
(5) The relative convenience of the parties.”

We quote from Professor Thode’s article, supra, 42 Tex. Law Review, p. 301, 2, 3, in part, as follows:

“The McGee decision was thought by some writers to establish the proposition that suit based on any business contact with the state of the forum would be sufficient to support personal jurisdiction over a non-resident defendant, assuming proper out-of-state notice. The 1958 decision of the Supreme Court of the United States in Hanson v. Denckla demonstrates that such an interpretation is too broad. In Denckla it was pointed out that McGee involved an insurance contract, and that the business of insurance, like that of control of motor vehicle traffic on the highways and the selling of securities, is something that falls within the permissible scope of regulation under the state’s police power. The defendant in Denckla was a corporate Delaware trustee who was being sued in Florida. The defendant’s contacts with Florida consisted of correspondence which primarily involved remitting trust income to the donor who had moved to Florida after setting up the trust, and in making changes in instruments at the request of the donor in. Florida. The Supreme Court held that there were not sufficient contacts for the Florida court to obtain jurisdiction over the nonresident trustee by out-of-state service. The Court stated:
“ ‘The unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws * * ’
“The Supreme Court also issued general words of caution:
“'‘It is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456, 1459. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.’
“In summation, there are limits upon the power of a state to bring a nonresident defendant-individual or corporate-into the courts of that state on the basis of out-of-state service. ‘Doing business’ is still the test for state regulation, but the limits on jurisdiction for the purpose of suing a nonresident are greatly enlarged. These limits are determined by the ‘minimum contacts’ test, and the contacts cannot be merely fortuitous, but must be purposefully made by the defendant. ■ Further, the litigation must grow out of these contacts, and notice must be properly given to defendant.”

In McKanna v. Edgar, Tex.Sup.Ct, 388 S.W.2d 927, (1965) it was stated in part as follows:

“Some time before this proceeding was instituted, Eileen Ann McKanna, a resident of California, executed and delivered a note to Joe Edgar, Jr., of Austin, Texas. The note was payable in Austin. McKanna did not pay the note when due, and Edgar brought suit. Edgar had a problem in obtaining personal service of process because Mc-Kanna lived in California. There is a Texas statute which provides for substituted service upon corporations and individuals doing business in Texas, Article 2031b. Edgar served, or attempted to serve, McKanna by serving the Secretary of State of the State of Texas under that statute. The Secretary of State in turn forwarded the citation to McKanna. McKanna did not appear in the Texas court in person or by attorney. Article 2249a. Based on that service, Edgar obtained a judgment by default against McKanna on the note. McKanna thereafter instituted this action, within the time allowed, by way of writ of error to the Court of Civil Appeals to set aside the default judgment based on the substituted service. Articles 2249 and 2255. The Court of Civil Appeals refused to set aside the judgment. 380 S.W.2d 889 (1964).
“McKanna, the nonresident defendant, contends that the judgment should be set aside for lack of jurisdiction over her person because (1) the substituted service of citation upon her was not made in accordance with the provisions of Article 2031b in that the record fails to show the existence of the conditions which, under the statute, are a prerequisite to service on her by serving the Secretary of State; and (2) Article 2031b is unconstitutional if it confers jurisdiction under the facts and circumstances of this case.
“We reverse both judgments below on the basis of McKanna’s first contention. It is therefore unnecessary to consider the constitutional question. * * *
“Section 3 of Article 2031b, here to be construed, reads in part as follows*.
“ ‘Any * * * non-resident natural person that engages in business in this State * * * and does not maintain a place of regular business in this State or a designated agent upon whom service may be made * * *, the act or acts of engaging in such business * * * shall be deemed equivalent to an appointment * * * of the Secretary of State of Texas as agent upon whom service of process may be made * * ‘Section 4 of that Article provides that a nonresident ‘shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State * * *.’ The parties agree that McKanna was doing business in Texas; so that problem is not before us.
“Edgar alleged in his petition that Eileen Ann McKanna resided in Orange County, California, and that she executed and delivered to Edgar her note ‘payable to the order of plaintiff at 1210 Perry-Brooks Building, Austin, Texas * * *.’ These allegations comply with the requirements of Section 3 of Article 2031b that Mc-Kanna be a nonresident and, as stipulated, be doing business in this State. But there are no allegations that Mc-Kanna ‘does not maintain a place of regular business in this State or a designated agent upon whom service may be made.’ The non-existence of those two conditions is shown to be a necessary prerequisite to the applicability of Section 3 because of the language used in Section 2. * * *”

The judgment which appellant seeks to have reviewed resulted from a full hearing by the trial judge, with stipulations made and evidence adduced and we think such judgment is entitled to all of the favorable presumptions of a judgment as in any other type of suit. Thus the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from their testimony and the exhibits introduced in evidence, were matters to be determined primarily by the trial judge. Also, since findings of fact and conclusions of law were not requested, the whole record should be viewed in its most favorable light to support the judgment, if possible.

There was evidence in the record to the effect that at all relevant times appellee was a New Jersey Corporation with its principal place of business in Lakewood, New Jersey, engaged in the sale, delivery and servicing of propane gas to commercial and residential users solely in the State of New Jersey, and that most of its activities was confined to one county in New Jersey; that it had conducted no business of any kind whatsoever within the State of Texas; and, that its officers, agents or employees had not been in the State of Texas for any reason in connection with the appellee’s business during the period germane to this suit.

There is a dispute between the parties and in the evidence as to where the acceptance of the offer to purchase the propane trailer for $15,000.00 was made.

No written contract or agreement was entered into between appellant and appellee, and appellant obtained the trailer in question in New Jersey from an independent contractor who was hired to pick it up and deliver it there. The only direct personal contact between appellant and appellee was made when Walker, appellant’s transport sales engineer, called on appellee’s treasurer Lindenbaum at appellee’s office in Lakewood, New Jersey, in an effort to sell ap-pellee a propane trailer.

Appellant, in its brief, among other contentions, relies on two things as constituting the contact of appellee with the forum State of Texas. One alleged contact comes from the small print under the description column of an invoice providing for payment at the office of Trinity Steel Company, Inc. at Dallas, Texas. This invoice, was a unilaterally prepared invoice, made by appellant only, dated “7/26/63” and was not prepared or sent to the appellee until after the independent contractor had taken the trailer from Texas to New Jersey. This invoice of course was not signed by appellee and was only a unilateral invoice prepared by appellant after the transaction had already been consummated. There had been neither an oral nor a written agreement between the parties as to place of payment. The witness Lindenbaum testified that there had been no written agreement of any kind between the parties. Under the evidence adduced, an implied finding on the part of the trial court that there was neither an oral nor written agreement made between the parties with reference to the place of payment, is sustainable. Clearly the unilateral invoice made by appellant after the transaction was consummated, containing the fine print “payable, etc., in Dallas, Texas” would not constitute a promise to pay in Dallas, Texas, by appellee, who did not enter into such promise.

Appellant’s other alleged contact of the appellee with the forum State of Texas has to do with the place of the acceptance of the contract. The testimony of appellant’s witness Walker and appellee’s witness Lindenbaum are in conflict on this point. The trial court, being the judge of the credibility of these witnesses and of the weight to be given their testimony, accepted Lindenbaum’s version to the effect that appellant made the offer to him by telephone and that he, on behalf of appellee, accepted appellant’s offer to sell at appellee’s place of business in Lakewood, New Jersey. We think the evidence is amply sufficient to support an implied finding by the trial court that appellant’s offer to sell was accepted by appellee at appellee’s office in Lakewood, New Jersey.

It is our view that McKanna v. Edgar, supra (388 S.W.2d 927) is clearly distinguishable from the facts in this case — in McKanna v. Edgar a defendant executed and delivered a written promissory note wherein it specifically provided for payment in Austin, Texas — here there was neither an oral nor a written agreement to pay in Texas, and the unilateral invoice prepared after the transaction was consummated, and not signed or executed by appellee, would not constitute a written promise on the part of appellee to pay in Texas.

It is our view that the evidence is sufficient to support implied findings of the trial court to the effect that there was no contract made in the State of Texas between appellant and appellee, that appellee' by no act purposefully availed itself of the privilege of conducting activities in the State of Texas, that appellee was not “doing business” in the State of Texas, and that those “minimal contacts” which are a prerequisite to personal jurisdiction of the courts of Texas over a non-resident defendant were lacking as to appellee.

After considering the record and the authorities hereinbefore referred to, it is our holding that the trial court rendered a correct judgment which should be affirmed.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    George W. WHITTLE et al., Appellants, v. W. J. JOHNSTON et al., Appellees.
    No. 7627.
    Court of Civil Appeals of Texas. Texarkana.
    June 29, 1965.
    Rehearing Denied July 27, 1965.
    J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, B. F. Edwards, Clarks-ville, for appellants.
    Austin Guest, Pat C. Beadle, Clarksville, for appellees.
   DAVIS, Justice.

A trespass to try title suit filed in the District Court of Red River County, Texas, on April 30, 1955, by plaintiff, George W. Whittle, against defendant, W. J. Johnston, for title to a 100 acre tract of land under the ten year statute of limitation which is located on the East Boundary Line of the William Mays H. R. Survey in Red River County, Texas. George W. Whittle died December 21, 1956. On May 10, 1963, plaintiffs-appellants Leona Whittle, a widow, Lucille Braddock, a single woman, Aileen Harmening Phelps and husband, Hubert Phelps, filed their amended petition against defendants-appellees, W. J. Johnston, K. C. Enox and wife, Annie Belle Enox, seeking to recover the 100 acres of land under the ten year statute of limitation. The case was tried before the court, without a jury, and judgment was rendered that plaintiffs-appellants take nothing. From this judgment, the appellants have perfected their appeal and bring forward six points of error.

By points 1, 4, 5, and 6, appellants say the trial court erred in failing to render judgment in their favor because appellants, and their predecessors in title under whom appellants claimed the 100 acres of land, had perfected their title under the ten year statute of limitation prior to April 30, 1955; that the judgment rendered by the trial court is contrary to and against the great weight and preponderance of the evidence; and, the judgment is not supported by sufficient evidence of probative force to sustain the same. According to the transcript, W. J. Johnston filed an answer and a plea of not guilty on December 30, 1957, along with a cross-action. On August 1, 1962, W. J. Johnston and wife, Annie M. Johnston, conveyed all their undivided interest in and to a 100 acre tract of land situated on the North Boundary Line of the William Mays Survey to K. C. Enox and wife, Annie Belle Enox. There was a plat offered in evidence that clearly shows that there are two 100 acre tracts of land situated in the William Mays Survey. The tract of land involved in this suit is situated on the East Boundary Line of said survey and is altogether a different tract than the 100 acre tract situated on the North Boundary Line of the Mays Survey and they do not touch each other. On August 31, 1962, appellants, K. C. Enox and wife, Annie Belle Enox, filed a plea of not guilty. On May 11, 1964, after the case went to trial, appel-lee, W. J. Johnston, dismissed his cross-action and went to trial upon his plea of not guilty and the plea of the statute of limitation. After the case had started to trial, the trial court permitted appellees K. C. Enox and wife, Annie Belle Enox, to file a trial amendment wherein they allege they had peaceable and adverse possession of the land and tenements enclosed in a fence, cultivating, using and enjoying the same for a period of 10 years AFTER the cause of action had accrued and BEFORE THE COMMENCEMENT OF THIS SUIT.

According to the evidence in the case, which is wholly undisputed, the 100 acres of land was in the possession of A. J. “Jack” Whittle. A. J. “Jack” Whittle is the father of George W. Whittle. The evidence shows that A. J. “Jack” Whittle paid the taxes on the 100 acres of land for the year 1903. C. W. Warren testified that his father bought a tract of land joining the 100 acres in controversy in the year 1905. That his father built a sawmill on the tract of land adjacent to the 100 acres involved. In the year 1906, A. J. “Jack” Whittle and his boys, the father of C. W. Warren, assisted by C. W. Warren, built a plank and barbed wire fence around the 100 acres. In the year 1906, the father of C. W. Warren “made a deal” with A. J. “Jack” Whittle to put some log teams and some bulls on the 100 acre tract of land in question. Warren testified that he was personally acquainted with the land from 1906 until 1924, and the reputation of who owned the property in the community was that it was owned by A. J. “Jack” Whittle, and all during the time the property was under fence. During the time, Warren testified that Whittle kept hogs, cattle, colts, etc., on the enclosed 100 acre tract of land. That the land was known in the community as A. J. “Jack” Whittle’s land. The reputation was notorious.

Appellant, Leona Whittle, testified that she had been acquainted with the land for more than 47 years. That she and George W. Whittle were married more than 47 years ago and she had been acquainted with the property before said' marriage. That since her marriage, that she and the person whose title they held had had peaceable and adverse possession of the same, cultivating, using and enjoying the same from the date of her marriage until the date the suit was filed.

According to the evidence, A. J. “Jack” Whittle rented the house that was on the land involved to Bob Warren, father of C. W. Warren, and a foreman for the Warren mill moved into the house and lived there until his wife burned to death. The Warrens then moved another man into the house who worked for them, and then finally moved a bünch of Negroes in there.

In 1940, A. J. “Jack” Whittle sold the timber off the farm to Cummer-Garham Lumber Company through Claude Smith for a consideration of $70.00. Appellee, K. C. Enox, was assisting Smith in purchasing the timber, and Smith paid appellee Enox a $50.00 commission for the purchase. The timber was bought from A. J. “Jack” Whittle, the owner of the land. Smith testified that he put the sawmill on the land, that the reputation of who owned the land in the community was notorious and that the land belonged to A. J. “Jack” Whittle. The appellees offered several witnesses who testified to the fact that the land had been fenced for a period of more than 10 years and that none of the Johnstons had placed any claim on it whatever. There was some testimony that one of the heirs told one of the witnesses that he owned a small interest in the land, “but it was such a little, he wouldn’t fool with it”. This statement was made about thirty years ago. At no time after the year 1903 did any of the Johnstons make any claim at all to the 100 acre tract of land. According to the evidence, they moved away from the land, and shortly thereafter it was known as the A. J. “Jack” Whittle land and has remained in their possession, without any interruption of title, until April 30, 1955.

There is much more evidence than that hereinabove listed. There is no evidence by either of the appellees that supersedes the superior title as shown by the appellants. The facts of adverse possession and claim of any right from the year 1906 to April 30, 1955, is absolutely undisputed. In a trespass to try title suit where the facts are undisputed, whether the limitation has ripened is a question of law. McLendon v. Comer (Tex.Civ.App.) 200 S.W.2d 427, W.R., N.R.E.; Chittim v. Auld (Tex.Civ.App.) 219 S.W.2d 702, W.R., N.R.E.; 2 Tex.Jur.2d 353, Secs. 209-210. The facts are undisputed that A. J. “Jack” Whittle was in possession of the land and was actually using the same from the year 1903 until his death on March 13, 1946. That the use was visible, open, notorious and peaceable for a consecutive period of for more than 10 years. It must be presumed that he held the land for himself as owner and his claim was inconsistent and hostile to the claim of all others. Hartman v. Huntington (Tex.Civ.App.) 32 S.W. 562, E.R.; Lion Oil Refining Co. v. White (Tex.Civ.App.) 138 S.W.2d 290, N.W.H.; Black v. Terry County (Tex.Civ.App.) 183 S.W.2d 685, N.W.H. Possession of realty under a claim of right is subject to inheritance. The adverse possession of the land in question by A. J. “Jack” Whittle was inherited by appellants. Salinas v. Gutierrez (Tex.Civ.App.) 341 S.W.2d 558, W.R., N.R.E. The laws of Texas provide that the peaceable and adverse possession need not be continued in the same person, but there may be tacking by one person of the claim of another so long as there is privity of- estate between them. Art. 5516 Vernon’s Ann.Rev.Civ.St.; McAnally v. Texas Company, 124 Tex. 196, 76 S.W.2d 997. The privity of estate is not privity of title, but privity of possession. Art. 5516 R.C.S. Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513.

Since it was shown that title to this property was acquired by A. J. “Jack” Whittle during his lifetime, at least appellants are co-tenants of the property with the other heirs of A. J. “Jack” Whittle. Appellees are trespassers as to the title of this property that is vested in appellants, and any other heirs of A. J. “Jack” Whittle. A co-tenant may maintain an action in trespass to try title against a trespasser and recover the entire possession. And as to such stranger, the title to the defense of outstanding title is unavailable. 15 T.J.2d 216, Sec. 46; Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699; Reiter v. Coastal States Gas Producing Co. (Sup.Ct.) 382 S.W.2d 243. The points of error are sustained.

By points 2 and 3 appellants say the trial court erred in rendering judgment for appellees because the claim and title of appellants was not attacked by the abstract of title filed in writing by the defendants and the court erred in rendering judgment in favor of appellees when the uncontradicted evidence showed that the appellees were trespassers to the land in question; and, that appellants were in “prior possession” thereof. It has already been pointed out that the description of land claimed by appellees, K. C. Enox and wife, Annie Belle Enox, is situated on the North Boundary Line of the William Mays Survey. As a matter of fact, W. J. Johnston did not own or claim any right, title or interest in the land at the time of the trial. He was merely trying to defend the case upon his warranty of title.

As a matter of fact, any title that ap-pellee Johnston might have previously held was already acquired by the Whittles. Ap-pellee Johnston was a trespasser. The deed from Johnston to Enox and wife conveyed a different tract of land than that involved in this lawsuit. This being true, appellants were entitled to the judgment. Looney v. First National Bank of Floresville (Tex.Civ.App.) 322 S.W.2d 53; Butler v. Duffey (Tex.Civ.App.) 288 S.W. 598, N.W.H.

Appellees are naked trespassers to appellants and tortiously came upon the land in 1955. Appellees ousted appellants from the land and appellants resorted to an orderly procedure to establish title. Appellants made a prima facie case of title under the statute of limitation. The law is harsh against a trespasser who has possession and occupies the land under a prior claim of right. The presumption is that the one who is vested with possession is vested with title. Cannan v. Walker (Tex.Civ.App.) 385 S.W.2d 271, W.R., N.R. E.

Land title, such as the one here in dispute, will be settled by an orderly procedure under the law and defeat the very purpose of the laws designed to regulate society in this regard. Speaking of the law in this regard, the Supreme Court of the United States of America in Bradshaw v. Ashley, 180 U.S. 59, 21 S.Ct. 297, 45 L.Ed. 423, had this to say:

“Therefore, when in an action of ejectment the plaintiff proves that on the day named he was in the actual, undisturbed, and quiet possession of the premises and the defendant thereupon entered and ousted him, the plaintiff has proved a prima facie case, the presumption of title arises from the possession, and, unless the defendant prove a better title, he must himself be ousted. Although he proves that some third person, with whom he in no manner connects himself, has title, this does him no good, because the prior possession of the plaintiff was sufficient to authorize him to maintain it as against a trespasser, and the defendant, being himself without title, and not connecting himself with any title, cannot justify an ouster of the plaintiff. This is only an explanation of the principle that the plaintiff recovers upon the strength of his own title. His title by possession is sufficient, and it is a title, so far as regards a defendant who only got into possession by a pure tort, a simple act of intrusion or trespass, with no color or pretense of title.”

In a recent case, the Supreme Court of Texas in Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, quoting from Bradshaw v. Ashley, supra, said:

“The doctrine of ‘prior possession’ should be a simple one as it is designed to maintain public peace and order. In essence it proceeds upon the theory that one in possession should not be disturbed unless it be by one having a better title. In Bradshaw v. Ashley, supra, which undoubtedly represents the prevailing American rule, the United States Supreme Court categorically stated:
“ ‘The presumption of title arises from the possession, and, unless the defendant prove a better title, he must himself be ousted. Although he proves that some third person, with whom he in no manner connects himself, has title, this does him no good, because the prior possession of the plaintiff was sufficient to authorize him to maintain it as against a trespasser, and the defendant, being himself without title, and not connecting himself with any title, eannot justify an ouster of the plaintiff.’ ”

All the action taken by the appellees after the suit was originally filed had nothing to do with the title that already had been acquired by the appellants. At least, it was not sufficient to oust them of the title that they had acquired. The points are sustained.

The judgment of the trial court is reversed and the judgment is here rendered in favor of the appellants.

Reversed and rendered.


author: HUGHES, Justice.

text:
    Walter Lee KNAPP, Jr., et ux., Relators, v. O. T. MARTIN, Jr., District Clerk, Respondent.
    No. 11357.
    Court of Civil Appeals of Texas. Austin.
    July 7, 1965.

      Knudtson & Winget, Boyd Knudtson, Amarillo, for relators.
    Black & Stayton, Thomas Black, Austin, for respondent.
   HUGHES, Justice.

This is an original proceeding brought by Walter Lee Knapp and wife, Deann Knapp against O. T. Martin, Jr., Clerk of the District Court of Travis County, 53rd Judicial District, for a writ of mandamus to bring about compliance with the mandate of this Court issued on February 15, 1965, in our Cause No. 11,256, styled Knapp, Jr., et ux. v. Knapp, reported in 386 S.W.2d 630, n. w. h., wherein we sustained appellants’ pleas of privilege and rendered judgment directing that the issues raised by appellee’s pleading dated February 18, 1964, be transferred to the Court of Domestic Relations of Potter County.

The record herein discloses that on February 15, 1965, after our mandate herein had issued and had been filed with Respondent as Clerk but before he had complied with such mandate a motion had been filed by Vicki Gayle Knapp for a voluntary non-suit of the issues raised in the pleading which this Court had ordered transferred to Potter County.

This motion for nonsuit was granted on the day it was filed by the Honorable Herman Jones, Judge of the District Court for the 53rd Judicial District. This order was at the request of Relators herein rescinded by written order on May 13,1965. No other order has been entered with respect to such matter but Judge Jones states, “Except for the filing of this Motion for Leave to File Petition for Writ of Mandamus Respondent Jones would have entered an order dismissing all issues raised by the motion of February 18, 1964, similar to the one entered on February 15, 1965.”

It is our opinion that Relators are entitled to the relief sought.

We believe that the law stated in Goodrich v. Superior Oil Co., 151 Tex. 46, 245 S.W.2d 958, controls disposition of this proceeding. There Associate Justice Smith for a unanimous Court declared, and we quote:

“On March 7, 1951, this Court, in answer to the certified question first quoted above, held that the allegations in plaintiff’s petition did not show venue in the District Court of Montgomery County under Subdivision 14 of Article 1955, Vernon’s Ann.Civ.St., as against the defendant, Robert D. Goodrich. Appellee filed its motion for rehearing, which was overruled on April 18, 1951. Two days later, appellee filed its motion for nonsuit in the District Court and on the same day the trial court granted the motion and entered the order set out above. Appellee now claims that by virtue of such nonsuit the case has become moot and that the Court of Civil Appeals has jurisdiction to enter no' order other than one dismissing the case appealed and leave unaffected the jurisdiction of the trial court in Montgomery County to adjudicate the venue of the cross-action. With this contention we cannot agree. The decision of this court became final on April 18, 1951. The Court of Civil Appeals was immediately notified of such decision, and the only proper judgment it could enter was one transferring the cause to Tarrant County where the defendant resides. Under Rule 89, Texas Rules of Civil Procedure, it was the duty of the Clerk of the District Court of Montgomery County, upon receipt of the mandate, to make up a transcript of all the orders made in said cause, including the order of the trial court made on the motion for nonsuit, certifying thereto officially under the seal of the court, and send it with certified copies of the original papers in the cause to the Clerk of the District Court of Tarrant County. The taking of a nonsuit in the District Court does not affect a prior final judgment of this court, and, therefore, could not prejudice the right of appellant to have the cross-action transferred to the county of his residence.
The case stands as though it had been originally filed in the District Court of Tarrant County. Hall v. Castleberry, Tex.Civ.App., 283 S.W. 581, 584.”

See also Sherrill v. Sherrill, 359 S.W.2d 330, Waco, writ dismissed.

There is no difference between a final judgment of this Court and a final judgment of the Supreme Court or, for that matter, a final judgment of the trial court, as far as the parties are concerned.

We direct Respondent to comply with our mandate in the above cause, however, since Respondent has stated that the only reason he has not complied with the mandate of this Court is the pendency of the motion to nonsuit before Judge Jones and the suggestion to him by Judge Jones that he should not transfer the papers as directed by us until such motion had been disposed of, we anticipate compliance with this order and direct that no formal writ of mandamus presently issue.

Mandamus granted.


author: CLAUDE WILLIAMS, Justice.

text:
    PETROLEUM ANCHOR EQUIPMENT, INC., Appellant, v. William D. TYRA, Sr., et ux., Appellees.
    No. 16491.
    Court of Civil Appeals of Texas. Dallas.
    May 14, 1965.
    Rehearing Denied July 9, 1965.

      Burford, Ryburn & Ford, Spencer C. Relyea III and John L. Estes, Dallas, for appellant.
    Robert L. Netterville, Natchez, Miss., Forrest B. Jackson, Jackson, Miss., and Baker, Jordan, Shaw & Foreman, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Petroleum Anchor Equipment, Inc. sued William D. Tyra and wife, Dorothy B. Tyra, seeking equitable relief by way of injunction and cancellation of two written instruments described as assignments of Application for Letters Patent. The Application for Letters Patent related to an invention described as a screw type earth anchor and pipeline saddle, a device utilized in anchoring pipelines laid in marshy terrain. Plaintiff corporation alleged that on January 8, 1963 the defendant William D. Tyra, Sr. entered into a conspiracy with one W. A. Moss and Luther S. Fite to deprive plaintiff of its ownership of said invention and Application for Letters Patent thereon; that in the furtherance of said conspiracy on said date Moss, being the president of plaintiff corporation, prepared false resolutions purporting to have been passed by the stockholders and board of directors of plaintiff corporation giving Moss full authority to sell property belonging to the corporation, and that subsequent thereto on February 14, 1963 Moss, in furtherance of said conspiracy prepared a written assignment of the Application for Letters Patent and delivered the same to Fite. It was then alleged that on March 4, 1963 Fite, in furtherance of said conspiracy, executed an assignment of said Application for Letters Patent to defendant William D. Tyra, Sr. Plaintiff asked that defendants be enjoined from transferring the Application for Letters Patent and that the two assignments be declared null and void. The defendants answered, denying the conspiracy allegations and setting forth various special defenses. By trial amendment, plaintiff abandoned the conspiracy allegation against William D. Tyra, Sr. and alleged that the conspiracy was entirely between Moss and Fite. In addition thereto plaintiff’s counsel advised the court that it would not seek to introduce any evidence of conspiracy involving Tyra, and none was offered.

During the trial of the case Moss testified that, as president of plaintiff corporation, and acting on authority of the resolution of the board of directors and stockholders of plaintiff corporation, he transferred the Application for Letters Patent to Fite. Fite testified that he then sold and assigned the Application for Letters Patent to Tyra for a consideration of $800 cash, together with the cancellation of an indebtedness of $2,200, or the total of $3,000.

Based upon the answers of the jury to the special issues submitted the court rendered judgment against plaintiff thereby decreeing title and ownership of the Application for Letters Patent to vest in defendants. Plaintiff appeals.

We are immediately confronted with a fundamental question of jurisdiction and although the same is not raised by either party to this appeal we are bound to take notice thereof. The record reveals on its face that Luther S. Fite, who is alleged to have been a co-conspirator as well as an assignee and assignor of the Applications for Letters Patent, is not named as a party to this litigation. It is our opinion that Fite was a necessary and indispensable party to this case. “In accordance with the rules concerning parties generally, all persons in whose favor or against whom a recovery may be had in a suit for cancellation, however insignificant the recovery may be, and all persons who are interested in the subject matter of the suit or the relief granted therein, and whose rights may be affected by the decree, must be made parties to the suit.” 10 Tex.Jur.2d, Cancellation of Instruments, § 65, p. 414, and cases cited therein. The courts of Texas have settled the proposition that the absence of a necessary party in a suit for cancellation is fundamental and jurisdictional to the extent that it requires consideration by the appellate court. 10 Tex.Jur.2d, Cancellation of Instruments, § 65, p. 416.

In the case of Merritt et al. v. Ryno, Civ.App., 268 S.W.2d 546, a very similar situation was presented in a case to cancel written instruments. In that case the wife of one of the grantors in one of the written instruments involved and sought to be can-celled was not made a party defendant nor plaintiff. The Court of Civil Appeals at Waco took notice of the fact that there was a lack of necessary and indispensable parties. The court reiterated the rule established by our Supreme Court in Sharpe v. Landowners Oil Ass’n, Tex.Comm.App., 127 Tex. 147, 92 S.W.2d 435, wherein it was said:

“It is settled beyond all question in this state that in a suit to cancel a written instrument all persons whose rights, interests, or relations with or through the subject-matter of the suit will be affected by the cancellation are necessary parties. [Citing cases] The absence of a necessary party in a suit for cancellation is fundamental and jurisdictional to such extent that it must be considered by this court.”

The rule announced by our Supreme Court in the Sharpe case, supra, is supported by such authorities as Barmore v. Darragh, Civ.App., 227 S.W. 522; Rogers Nat’l Bank of Jefferson v. Pewitt, Civ.App., 231 S.W.2d 487, wr. ref.; Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865; Royal Petroleum Corp. v. McCallum, 134 Tex. 543, 135 S.W.2d 958; Matthews v. Landowners Oil Ass’n, Civ.App., 204 S.W.2d 647; Hutchins v. Birdsong, Civ.App., 258 S.W.2d 218.

That Fite has an interest and that his interest will be affected by the cancellation of the two instruments here involved is revealed on the face of this record a number of times. He is the “middle man”, so to speak, between appellant corporation and appellees, Tyra and wife. He is alleged to be a co-conspirator whose acts resulted in injury to the appellant corporation by virtue of which it demands cancellation of both instruments to which he is a party. He is the potential owner of the patent in question in the event Tyra’s rights fail. He has a right to defend his title as well as that of the Tyras. Tyra paid Fite a valuable consideration for the assignment and had a right to protect himself in the event of a recovery by appellant. Fite being a necessary and indispensable party we must take notice of this fact and decline to proceed further.

Because of the fact that this cause will have to be retried, we refrain from any discussion of the various points of error and cross-points of error presented by both appellant and appellees.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING

Both appellant and appellees filed motions for rehearing in which they each contend that Luther S. Fite was not a necessary party to this litigation. The arguments advanced were primarily predicated on the proposition that Fite had conveyed his interest in the Application for Letters Patent to the Tyras and therefore could not have an interest in this action. Both parties seem intent in concentrating their attention towards the last instrument sought to be can-celled by appellant, that is, the one from Fite to the Tyras. In doing so they entirely overlook the crucial fact that appellant brought this action to cancel not one instrument but two separate assignments and the further fact that the cancellation of the second assignment ultimately depended upon the cancellation of the first. In its original petition appellant, after alleging in great detail the various acts which constituted conspiracy between its president, Moss, and Fite, in which conspiracy the Tyras are alleged to have participated, concludes by praying that it have judgment “cancelling said bill of sale from Petroleum Anchor Equipment, Inc., to Luther S. Fite, and said assignment from Luther S. Fite to Defendant, William D. Tyra, Sr.” (Emphasis supplied). Subsequently, both orally and by means of trial amendment, appellant abandoned its allegations of conspiracy, or knowledge thereof, as against appellees, but reiterated and strengthened said allegations relating to such conspiracy between Moss and Fite which formed the basis of cancellation of the first assignment. This left the pleadings devoid of any equitable grounds for relief against the Tyras other than the claim of invalidity of the first assignment. The statement of facts is replete with testimony relating to alleged acts of conspiracy between Moss, appellant’s president, and Fite which appellant contends formed the equitable basis for the cancellation of the first assignment to which ap-pellees are strangers. Bearing in mind the dual nature of appellant’s cause of action and the fact that appellant’s cause of action must stand or fall on the validity of the first assignment to which Fite has a crucial interest, we are convinced that our original disposition of this appeal was correct.

It must be emphasized that for appellant to obtain equitable cancellation of the assignment to appellees, it must first seek and obtain equitable cancellation of the assignment to Fite. Contrary to appellant’s position, the assignment from appellant to Fite is not void but merely voidable. An instrument obtained by fraud is not void but voidable only. Absent allegations of fraud or other equitable grounds of cancellation against appellees their title is prima facie valid and can only be voided by suit and a decree annulling and cancelling the voidable assignment to Fite. Deaton v. Rush, Com.App., 113 Tex. 176, 252 S.W. 1025; Fuller v. Wright, Civ.App., 82 S.W.2d 179; Pure Oil Co. v. Swindall, Com.App., 58 S.W.2d 7; Ramirez v. Bell, Civ.App., 298 S.W. 924; Terry v. Baskin, Civ.App., 27 S.W.2d 857. Such being the rule, Fite’s presence in this case becomes more obviously indispensable.

Appellees have now filed what they designate their “Reply to Appellant’s Motion for Rehearing” in which they now agree with us that Fite was a necessary party to the litigation. In this instrument appellees say:

“If it be true that Appellant seeks to set aside both the assignment from Appellant to Fite, as well as the assignment from Fite to Tyra, then we are in accord with the Court’s holding and regard Fite as an indispensable and necessary party. If the action is one merely to set aside the assignment from Fite to Tyra a different situation arises. In that situation Fite was clothed with apparent valid title and Appellees, as innocent purchasers, secured a valid title from Fite. When Appellant abandoned its claim of conspiracy and bad faith on Appellees’ part its lawsuit fell, and we think under these circumstances Fite was not a necessary party, but before Appellant can attack the assignment from it to Fite, Fite is a necessary party.”

Thus, appellees have now recognized that our original disposition of this appeal was made in the light of the dual nature of appellant’s cause of action rather than the isolated cancellation of the last assignment.

The fact that Fite conveyed his interest in the Application for Letters Patent to the Tyras does not, under the circumstances of this case, negate the fact that he is an indispensable party. The same argument was considered in Merritt, et al. v. Ryno, Civ.App., 268 S.W.2d 546, in which the court held that the wife of one of the grantors in one of the written instruments sought to be cancelled was a necessary party even though she had likewise conveyed her interest. In Backus Portable Steam Heater Co. v. Simonds, 2 App.D.C. 290, which was a suit in equity for the cancellation and surrender of an alleged fraudulent assignment of a patent and to expunge said assignment from the records of the patent office, the court held that the parties by whom and to whom the assignment was made, as well as the Commissioner of Patents, were necessary parties. In 12 C.J.S. Cancellation of Instruments § 54, p. 1032, it is stated that: “Even though he has conveyed the property in question, the original grantee is a necessary party to a suit to set aside the conveyance to him.”

It is a fundamental principal of law that where one seeks to cancel an instrument in a court of equity all parties to the instrument must be made parties plaintiff or defendant. Priddy v. Business Men’s Oil Co., Civ.App., 241 S.W. 770, affirmed 250 S.W. 156; Dial v. Martin, Civ.App., 8 S.W.2d 241; Christian v. Hood, Civ.App., 19 S.W.2d 621; Wells v. Lewis, Civ.App., 159 S.W.2d 244; Matthews v. Landowners Oil Ass’n, Civ.App., 204 S.W.2d 647; Pattison v. Highway Ins. Underwriters, Civ.App., 278 S.W.2d 207; Petersen v. Robinson Oil & Gas Co., Civ.App., 356 S.W.2d 217.

Our Supreme Court, speaking through Mr. Justice Culver, in Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313, restated the rule that necessary parties to a suit are those who have or claim a direct interest m the object and subject matter of the suit and whose interest may necessarily be affected by any judgment rendered therein. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512. Justice Culver continued:

“The term ‘necessary parties’ has also been defined as ‘persons who'have such an interest in the controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.’ ” (citing authorities).

Can it be reasonably argued that Fite, one of the parties to the primary instrument sought to be cancelled, does not, or may not, have an interest in this controversy? Moreover, we think it cannot be reasonably denied that under the facts and circumstances as presented by this appeal, to omit Fite from this litigation, wherein cancellation is sought of an instrument to which he is a primary party and because of his alleged conspiracy and wrongs, would result in a situation wholly inconsistent with equity and good conscience.

The fact that the absent party is a nonresident and may not be subject to the processes of the court does not alter the rule. This question was discussed by the Commission of Appeals in Royal Petroleum Corp. v. McCallum, 134 Tex. 543, 135 S.W.2d 958 (adopted by the Supreme Court), wherein the court said:

“It necessarily follows, however, that in a suit to cancel such a contract, where necessary parties are not within the jurisdiction of the court, and the court no longer possesses power to bring them under its authority, the court is without jurisdiction to litigate the question of the invalidity of the contract, and decree its cancellation.”

This record does not reveal whether Fite may be brought into this case, either voluntarily or involuntarily, so that matter remains for determination by the trial court.

Motions for rehearing by appellant and appellees are overruled.


author: WILSON, Justice.

text:
    Frank TAYLOR et ux., Appellant, v. L. J. BROOKS, Appellee.
    No. 4376.
    Court of Civil Appeals of Texas. Waco.
    July 15, 1965.
    Rehearing Denied Aug. 5, 1965.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., and A. D. Bynum, Dallas, for appellants.
    Andrew Campbell, John O’Neal, Hamilton, for appellee.
   WILSON, Justice.

Judgment for plaintiff was rendered in this personal injury action resulting from an automobile collision. Plaintiff’s motion to disregard jury findings that he failed to keep a proper lookout, and that the failure was a proximate cause of the collision (as being without support in the evidence) was sustained. We affirm.

Defendants’ points attack the order disregarding the two jury findings, urging there is evidence to support them. The emphasis of their argument is directed to whether the finding that plaintiff failed to keep a proper lookout is so supported. This is a question which we need not decide. There is no evidence, in our opinion, to support the finding on proximate cause, which the trial court properly disregarded.

The vehicles of plaintiff Brooks and defendant Mrs. Taylor were traveling toward each other on a paved road, the two lanes of which were separated by a center stripe. The accident occurred on a clear afternoon. There were no obstructions to view. The narratives of plaintiff and defendant are remarkably similar as to the material facts.

Defendant testified she did not see plaintiff’s car at any time until just before the collision. “I cannot tell you why,” she said. The two cars collided when she turned to her left, undertaking to enter an intersecting road, and intercepted plaintiff’s car which was approaching from a direction opposite to her original course. Plaintiff was driving 60-65 miles per hour and testified he observed defendants’ vehicle about 300 yards away as he came toward the intersection; that when they were about 150 yards apart defendants’ car slowed, continued in motion with its left directional blinker signal light in operation, and then appeared to stop; that he “thought it would stay stopped until we got on past. Then when it was too late for me to do anything, I realized that she had already begun to make a turn.” At this time, he testified, “we were just about in the intersection; just about the time I was right in front of her. Defendants’ car was across the center stripe in plaintiff’s lane at impact. He also testified he “didn’t see her start to make the turn,” and “didn’t see her start to come across until too late.”

Defendant testified she had been traveling 65-70 miles per hour until she approached the intersecting road into which she intended to make a left turn; that she then reduced speed as a car approached from behind. “I realized he was going to go around me. I pulled my car over to the right. I was going very slowly.” She did not then turn on the turn signal, but waited until the car from the rear passed. “As the car passed me, I turned on my left signal light.” She testified she was “in the intersection and beginning a turn to the left. The two front wheels were over on the side of the road to which I was turning” when she first saw plaintiff’s car. She was turning to her left “very slowly.” She estimated plaintiff’s car was then “about 15 feet away.” Plaintiff’s car was in the center of his proper tr-affic lane when she saw it. She did not see his vehicle until after she started her left turn and was in the intersection, when she “jammed on” her brakes. Defendant offered no evidence.

Defendant summarizes the asserted deficiency in plaintiff’s lookout: “Plaintiff did not observe defendant’s automobile from the time it left its own lane of traffic up until the time it was completely in plaintiff’s lane of traffic.”

From the viewpoint of plaintiff’s testimony (which is that most favorable to defendant on this point) and the most favorable defendant’s inferences which may be drawn, plaintiff had a maximum period of approximately two seconds in which to take evasive action from the time defendant began a left turn until the time of impact. According to defendant’s own testimony plaintiff had even less time available: after she began her turn, crossed about 10 feet of pavement, and was entering plaintiff’s lane, his car was about 15 feet away.

The failure to keep a proper lookout can only be deemed a proximate cause where “the keeping of it would have prevented the unfortunate occurrence.” Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049, 1051; Gulf C. & S. F. Ry. Co. v. Russell, 125 Tex. 443, 82 S.W.2d 948, 952; Thompson v. Gray, Tex.Civ.App., 219 S.W.2d 831, 833, writ ref. n. r. e. If plaintiff had constantly and unrelentingly focused his eyes on defendants’ car from the start of its turn to time of impact, it would have nevertheless been impossible for him to have avoided the collision. Causal relation does not exist. Plaintiff’s lookout was not a cause in fact as a matter of law, and the court properly disregarded the proximate cause finding. Affirmed.


text:
    Donald TOBIN, Appellant, v. J. D. BLANTON CONSTRUCTION COMPANY, Inc., Appellee.
    No. 7656.
    Court of Civil Appeals of Texas. Texarkana.
    July 13, 1965.
    Rehearing Denied Aug. 10, 1965.
    Morris I. Jaffe, Harold Hoffman, of Wynne, Jaffe & Tinsley, Dallas, for appellant.
    Hubert D. Johnson, James E. Coleman, Jr., of Carrington, Johnson & Stephens, Dallas, for appellee.
   DAVIS, Justice.

This is a suit by plaintiff-appellant, Donald Tobin, as a real estate agent, to recover a 5% commission from appellee-de-fendant, J. D. Blanton Construction Company, Inc., on a written lease agreement for a term of 25 years entered into by and between Midwestern Security Corporation, as lessor, and Fred C. Walters, as lessee, and Fred C. Walters and John B. Walters, as guarantors of the lease, and Moser Company, a partnership, and Donald Tobin, a member of the partnership, as realtor. The appellee was not a signatory or a party to the written lease agreement. The case was tried before the court, without a jury, upon stipulations of fact and with a short statement of facts. There are no findings of fact and conclusions of law, and none were requested by appellant. Judgment was entered that the appellant take nothing. Appellant has perfected his appeal and brings forward 4 points of error.

History

Appellant was a partner with Moser Company, a partnership, that were licensed real estate agents. Midwestern Security Corporation, an insurance company, was apparently the owner of certain real estate situated in Dallas, Dallas County, Texas. The Moser Company arranged and procured the execution of a lease on a 200 unit Motor Hotel to be constructed on the property that was owned by Midwestern Security Corporation. The lease was signed on November 11, 1958, and provided for an annual rental of $180,000.00 per year, plus an additional percentage rental for the year 1962 which amounted to about $45,000.00. The term of the lease was for 25 years. According to the lease, lessor was to pay the real estate agents a 5% commission for negotiating the lease. The total commissions to be paid under the term of the lease amounts to about $225,000.00. Appellant testified that he had taken over the claim for the Moser Company, and that he was the exclusive owner thereof.

Subsequent to the date of the lease, the lessor entered into a construction contract with the appellee to build the Motor Hotel. The lessor executed and delivered to ap-pellee certain notes and deed of trust to finance the construction thereof, and as further collateral the lessor assigned to ap-pellee the lessor’s interest under the lease in question. The Motor Hotel was constructed and was occupied by the lessee, who still occupies and operates the same as a Motor Hotel. On February 7, 1961, ap-pellee had to foreclose on one of the notes which it took pursuant to financing arrangements. At the time appellee entered into the agreement with the lessor Midwestern Security Corporation to build the Motor Hotel, the lease in question was already in existence. Lessor, Midwestern Security Corporation, did not obtain permanent financing, and was unable to fulfill its obligations under the security instrument. It could not make the payments as promised.

As a matter of fact, appellee, a construction company, took three separate security instruments from Midwestern Security Corporation to secure the payments due it for building the Motor Hotel.

Appellants, in addition to the lease, secured a deed of trust to secure the payments of their commissions. The deed of trust contains a SUBORDINATION OF MORTGAGE, which reads, in part, as follows :

“This mortgage shall be subordinate in all respects to the following:
(a) Deed of trust dated May 18,1960 from Midwestern Security Corporation, to Clyde Gilmer, Trustee;
(b) Lease dated November 11, 1958 between Midwestern Security Corporation and Fred C. Walters, Lessee,
(c) A Ken arising against the premises against the builder’s contract between Midwestern Security Corporation and J. D. Blanton Construction Company, Inc,
(d) Any mechanics lien arising from construction of improvements on property described in Exhibit ‘A’,
(e) Any liens created in construction or renovation of improvements located on the property described in Exhibit ‘A’.
In the event any of the foregoing are foreclosed pursuant to the terms thereof, this instrument shall apply solely to the proceeds payable to Mortgagor, any interest of mortgagor by way of redemption or otherwise retained in the property and any amounts received upon the disposition or sale of Mort gagor's interest upon foreclosure, sale or otherwise.” (Emphasis added).

Appellee had to foreclose, and the Lessor, Midwestern, went into bankruptcy.

Appellee defended the suit under the provisions of Article 6573a, Sec. 28, Vernon’s Ann.Tex.Civ.St., which reads as follows:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

The appellant did not plead or prove any instrument of writing as contemplated by Art. 6573a, Sec. 28, supra. It seems that a construction of this statute means that a real estate agent must secure the written agreement to pay a commission from the owner of the land, describe the land in the written agreement, prior to the sale or lease of the land. This statute has been discussed in the following cases: Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584; Struller v. McGree, Tex.Civ.App., 374 S.W.2d 256, W.R., N.R.E.; Wingo v. Farley, Tex.Civ.App., 318 S.W.2d 955, N.W.H.; Casebolt v. Olivier, Tex.Civ.App., 298 S.W.2d 841, Err., dism’d; Jackson v. Key, Tex.Civ.App., 223 S.W.2d 717, E.R.

Opinion

By his points of error, the appellant says the trial court erred in concluding, as a matter of law, that he was prohibited from collecting the commission by virtue of Art. 6573a, Sec. 28; in refusing to enforce the agreement to pay a commission as a covenant running with the land; in refusing to declare that appellant was entitled to recover funds which had been equitably assigned to him and which were wrongfully received by appellee; and, in refusing to award an attorney’s fee under Art. 2226, V.A.T.C.S.

From what has been said above, there was no prior agreement in writing entered into between the appellant and his associates and the owner of the land, Midwestern Security Corporation. In a similar case, as the case at bar, the Supreme Court of Texas has held that a promise being made purely for the benefit of one having no interest in the land will not be enforced against successive owners as a covenant running with the land. Blasser v. Cass, 158 Tex. 560, 314 S.W.2d 807. Appellant and his associates did not own any interest in the property. They furnished the services to secure the lease without any promise to pay from the owner of the land. In the deed of trust to the Moser Company, they only retained a commission upon the amount that was paid to the landowner in the event of a sale under the mortgaged terms as spoken about in favor of J. D. Blanton Construction Company, Inc. There is no evidence that appellee assumed the obligation to pay any real estate commissions that were actually due and for which appellant sues.

There was no written agreement between appellant and appellee whereby ap-pellee promised to pay appellant a real estate commission. The lease pertaining to the payment of a real estate commission is not a covenant running with the land. The appellee did not assume that obligation, expressed or implied, to pay the appellant a commission. The provisions of Article 2226 are not applicable.

The points are overruled. The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    TEXAS TRACTOR COMPANY, Appellant, v. TEXAS POWER & LIGHT COMPANY, Appellee.
    No. 4380.
    Court of Civil Appeals of Texas. Waco.
    July 22, 1965.
    Rehearing Denied Aug. 12, 1965.
    Barrow, Bland, Rehmet & Singleton, Sidney Farr, Houston, for appellant.
    Bryan, Wilson, Olson & Stem, Thomas Cameron, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

Plaintiff, Texas Power & Light Company, filed suit against defendant, Texas Tractor Company, in McLennan County, alleging that plaintiff and defendant entered into a written contract in McLennan County whereby defendant was to sell an outdoor lighting fixture known as a Ready Lite to plaintiff’s customers; that plaintiff was to purchase the installment contracts made for same and bill the customer for the monthly payments along with the customer’s light bill; that defendant guaranteed in writing to repurchase from plaintiff all of the sales contracts which became in default; that $5,180.53 of the sales contracts were in default; that plaintiff had made demand of defendant to repurchase same and defendant refuses to plaintiff’s damage.

Defendant filed its plea of privilege to be sued in Harris County, the county of its residence.

Plaintiff controverted, alleging that defendant was a private corporation; that plaintiff’s cause of action, or a part thereof, arose within McLennan County, Texas; and that venue is maintainable in Mc-Lennan County under Subdivision 23, Article 1995, Vernon’s Ann.Tex.Civ.St.

Trial was before the court without a jury which, after hearing, overruled defendant’s plea of privilege.

Defendant appeals on 44 points, contending there is no evidence, or insufficient evidence, that plaintiff proved a cause of action against defendant or that any part of same arose in McLennan County, Texas. The record reflects that plaintiff sells electricity, and that defendant is a corporation; that plaintiff prepared a contract whereby defendant was to sell an outdoor light fixture to plaintiff’s customers on an installment note plan; that plaintiff was to purchase such installment note and collect on it along with the purchaser’s monthly bill; and that defendant guaranteed to repurchase any notes which became in default. Plaintiff mailed the contract to defendant’s president in Tyler, who signed it and returned it to plaintiff’s District Manager in Waco, who signed it in Waco. Pursuant to such contract defendant sold light fixtures to plaintiff’s customers, and plaintiff purchased the installment notes from defendant; that some of the notes from purchasers in McLennan County and other places went in default, and that plaintiff demanded defendant repurchase same, pursuant to defendant’s guarantee to do so, but defendant refused.

Subdivision 23, Article 1995, V.A.T.S. provides:

“Suits against a private corporation * * * may be brought in the county in which * * * the cause of action or part thereof arose * *

The written contract and guarantee is in evidence and the facts as stated were testified to by plaintiff’s District Manager and District Chief Accountant. The defendant offered no evidence. We think the evidence ample that plaintiff has a cause of action against defendant and that a part of same arose in McLennan County; and that venue is maintainable in McLennan County. See: Dunn v. Johnson, Tex.Civ.App. (n. w. h.), 274 S.W.2d 108; Moss v. Sherwin, Tex.Civ.App. (n. w. h.), 328 S.W.2d 816.

All of defendant’s points and contentions are overruled.

Affirmed.


text:
    James Robert DUKE, Jr., et ux., Appellants, v. Julia Duke SQUIBB et al., Appellees.
    No. 7641.
    Court of Civil Appeals of Texas. Texarkana.
    July 20, 1965.

      Barbara L. Welz, Welz & Anderson, Dallas, for appellants.
    James A. Cribbs, Bondurant & Cribbs, Arlington, for appellees.
   FANNING, Justice.

A summary judgment case. Julia Duke Squibb, John Bradley Underwood and Robert Duke Underwood sued James Robert Duke, Jr. and wife, Dorothy Duke, alleging that plaintiffs and defendant James Robert Duke, Jr. were joint owners of real and personal property belonging to the estate of James Robert Duke, Sr., deceased, that the personal property was subject to partition in kind and that the real estate, consisting of a house and lot located in Dallas County, occupied by defendant and his wife, was not subject to partition in kind, but that said house and lot should be sold and the proceeds be paid to the joint owners according to their interests, etc. Plaintiffs’ suit was filed August 14, 1963.

Defendants in their first amended answer, filed Feb. 25, 1964, contended, among other things, to the effect that in any partition they were entitled to be paid on three claims (A, B & C) they had against said estate, claim A being a claim of Dorothy Duke for nursing services for James Robert Duke, Sr., deceased, for the period of June 1, 1959 to Feb. 1960, with interest, said claim A totalling $4,284.00, claim B being a similar claim for nursing services in the same amount by James Robert Duke, Jr., and claim C being a claim of James Robert Duke, Jr. and wife, Dorothy Duke, for various itemized items of taxes on the said house and lot, fire and casualty insurance premiums, various items of improvement and repair to said property, paid by them from Jan. 1, 1960, through the years 1960, 61, 62, and through December 1963, with all of said items and interest thereon totalling the sum of $2,606.10. Defendants further alleged that there were not sufficient assets of personal property in said estate to pay said claims and that such claims were liens against the real estate and in effect should be paid from proceeds arising from the sale of the real estate, the principal asset remaining of the estate.

Defendants, in their first and second supplemental answers, alleged in effect that in consideration of the nursing services rendered by them as shown in their claims A and B, James Robert Duke, Sr., deceased, and his deceased wife executed and delivered a warranty deed to defendants conveying to defendants fee simple title to the house and lot in question, but that later, on Aug. 28, 1962, a judgment was entered in the 44th District Court of Dallas County, Texas, setting aside said deed and declaring such deed null and void, and that the said judgment on Aug. 28, 1962, caused and effected the total consideration for said deed to fail, and that the nursing claims, A and B, were from and after the date of Aug. 28, 1962, unpaid and due to defendants, and that claims A, B and C should be paid to them out of the assets of the estate, etc.

Plaintiffs in their second amended motion for summary judgment, among other things, contended to the effect that the claims of defendants were barred by the two year statute of limitations in that James Robert Duke, Sr. died on Feb. 9, 1960, and that defendants’ claims therefor were not asserted until Feb. 25, 1964, more than four years after the death of James Robert Duke, Sr., and further contention was made by plaintiffs that under Rule 97(a), Texas Rules of Civil Procedure, the claims of defendants were compulsory counter-claims, and should have been asserted by said defendants as compulsory counter-claims in Cause No. 53715H, styled “Julia Duke Squibb, et al vs. James Robert Duke, Jr., et ux”, in the 44th District Court of Dallas County, Texas.

While plaintiffs’ motion for summary judgment referred to said cause No. 53715H, no sworn or certified copies of the pleadings and judgment in said Cause No. 53715H were attached to said motion. None of the proceedings or papers in said Cause No. 53715H appear in the record in this cause. The judgment of the trial court, however, does contain a recital that the pleadings and judgment in said Cause No. 53715H were considered.

The trial court granted plaintiffs’ motion for summary judgment, denying all claims of defendants, ordering partition, etc. Defendants have appealed.

The recent case of Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., Tex.Sup.Ct., 391 S.W.2d 41, (June, 1965) states the principles of law applicable to the determination of whether a summary judgment should be granted. We quote from the court’s opinion in part as follows:

“This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the movant’s position is not considered unless it is uncontradicted. If such un-contradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332 [114 S.W.2d 226], 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.”

There was unquestionably an issue of material fact with reference to whether defendants’ claim C, or at least a portion thereof, should have been allowed and paid out of the proceeds of the sale of the house and lot. This claim amounted to $2,606.10. A portion of the items of claim C were not barred by the two year statute of limitations, even if the two year statute of limitations was applicable. Also a portion of the items in claim C were paid by defendants after the judgment of Aug. 28, 1962 in Cause No. S3715H. It is our further view that as to any portion of the claim of James Robert Duke, Jr., with respect to claim C, for improvements and repair, taxes, insurance, etc. as items paid by him to protect the house and lot in question, which might appear to be barred by the two year statute of limitations, would not be barred for the reason that he, James Robert Duke, Jr., was co-tenant and co-owner with plaintiffs of the house and lot and in a partition James Robert Duke, Jr., was entitled to set up his equities to reimbursement from the other plaintiff co-tenants and co-owners as to the portions due by them of the items paid as set out in claim C, especially as to the portion paid by James Robert Duke, Jr., and under these circumstances limitation statutes would not be applicable in the adjustment of the equities between co-tenant James Robert Duke, Jr., and the co-tenant plaintiffs. In this connection see Tapp v. Tapp, Tex.Civ.App., 134 S.W.2d 683, and authorities cited therein.

Since claim C of appellants raised material issues of fact the summary judgment cannot stand and must be reversed.

As hereinbefore stated, the record does not contain any certified or sworn copies of the pleadings and judgment in said Cause No. 53715H. In Gardner v. Martin, Tex.Sup.Ct., 345 S.W.2d 274 (1961), it was stated in part as follows:

“Subsection (e) of Rule 166-A speaking of forms of affidavits says, ‘ * * * sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith * * Defendants’ motion for summary judgment referred to Cause No. 58-68, and states ‘ * * * which matters are all of record in said court, to which record reference is hereby made.’ * * * We hold, however, that a compliance with Rule 166-8 (e) required that the certified copies of the documents referred to should be attached to the motion. There were no papers, records, or other documents from said Cause No. 58-68 attached to the motion by either sworn or certified copies. Since the matters referred to were court records, certified copies should have been attached to the motion; therefore, defendants had not complied with the provisions of Rule 166-A and were not entitled to a summary judgment.”

Since there were no certified or sworn copies of the pleadings and judgment in said Cause No. 53715H attached to plaintiffs’ motion for summary judgment, and since the contents of these matters are nowhere shown in the record, we deem it unnecessary to further discuss claims A and B, especially since the summary judgment must be reversed in any event because there were material issues of fact with reference to defendants’ claim C.

The judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    Patricia H. TURNER, Appellant, v. The MERCHANTS & PLANTERS NATIONAL BANK OF SHERMAN, Appellee.
    No. 7643.
    Court of Civil Appeals of Texas. Texarkana.
    July 13, 1965.
    John B. McClane, McGown, Godfrey, Logan & Decker, Fort Worth, for appellant.
    William R. Bryant, Henderson & Bryant, Joe M. Joiner, Joe A. Keith, Sherman, for appellee.
   CHADICK, Chief Justice.

This is a declaratory judgment action. The judgment of the trial court is affirmed.

The Merchants & Planters National Bank of Sherman instituted this action in the District Court as Executor and testamentary Trustee under the joint and mutual will of Frank A. Jewell and Mattie H. Jewell, both deceased. Judicial ascertainment of the rights of all persons who have or may take a property interest by the will is the purpose of the suit. Patricia H. Turner and her husband have appealed from the judgment rendered and are appellants. The Bank, Robert L. Jewell, Mary Catherine Diggs, and her three minor children, Frank Edward, Wayne and Melinda, are appellees.

Frank A. Jewell and Mrs. Mattie H. Jewell were each married twice, the second time to each other; their first spouses predeceased them. Mrs. Mattie H. Jewell was the mother of Patricia H. Turner, by the prior marriage union, as Mr. Frank A. Jewell was the father by his previous marriage, of Robert L. Jewell and Mrs. Mary Catherine Diggs. Mrs. Diggs is the widowed mother of the three minor children.

Frank A. Jewell and Mattie H. Jewell executed and published the will on the 27th day of September, 1960, and its validity as a joint and mutual will is unquestioned. Frank A. Jewell predeceased Mattie H. Jewell. The will was probated following the death of each testator as such testators’ last will and testament. The lengthy document occupies over thirty pages of the Statement of Facts, but Section 4 contains the language having primary influence on the question presented by this appeal. Section 4 is as follows, to-wit:

“All the remainder of the estate of the first of us to die, together with all property of the survivor of us, as same exists upon the death of the first of us to die, and upon the death of the survivor of us, all the rest, remainder and residue of the estate of such survivor, of every kind and nature, real and personal, shall pass to and vest in the trustees and their successors hereinafter provided, to be held in trust for the uses and purposes and subject to the provisions, conditions and limitations hereinafter set forth.”

Frank A. Jewell’s death in April, 1961, matured life insurance in the amount of $21,000.00. Proceeds were paid, $10,500.00 to Mrs. Mattie H. Jewell, and $5,250.00 each to Robert L. Jewell and Mary Catherine Diggs. In May, 1961, Mrs. Mattie H. Jewell opened a checking account at The Merchants & Planters National Bank of Sherman, wherein she deposited funds that included the insurance proceeds mentioned, annuity payments matured by her husband’s death, and sums advanced to her by the trustee bank. Mrs. Jewell’s balance in the account was $503.64 when she died in June, 1962.

In September previous to her death Mattie H. Jewell and appellant Patricia H. Turner opened a savings account at the same bank. To this saving account $5,909.-54 was deposited by Mattie H. Jewell. She took and retained possession until death of the passbook recording the transaction. No withdrawal was made during Mattie H. Jewell’s lifetime. The signature card made in connection with the account stated: “Our intention is to create a joint tenancy in this account, and in accounts in continuation hereof, with right of survivorship”.

On June 1, 1961, Mattie H. Jewell and Patricia H. Turner opened and subscribed to a share account in the Sherman Savings & Loan Association of Sherman, Texas. The signature card signed by both provided that the funds in the account were held by them “as joint tenants with right of sur-vivorship and not as tenants in common”. All deposits to the account were made by Mrs. Jewell and she took and retained possession of this passbook until death. When Mrs. Jewell died the total balance of this account stood at $8,633.83. All but $450.00 of the total was traced out of Mrs. Jewell’s checking account and from annuity payments, etc.

In November, 1961, Mattie H. Jewell and Patricia H. Turner opened and subscribed to a savings share account with the Fort Worth Savings & Loan Association, Fort Worth, Texas. The total deposited was $702.06. All funds deposited were furnished by Mrs. Jewell. Again the signature card provided “Joint account — with right of survivorship”. Patricia H. Turner, as a convenience to Mrs. Jewell, kept possession of the passbook. The balance in the account at Mrs. Jewell’s death was $702.06. Mrs. Turner withdrew this balance before suit.

The community and separate property of Frank A. and Mattie H. Jewell, as it existed at the time of Frank A. Jewell’s death, passed to and vested in the testamentary trustees under the terms of Sec. 4 of the will. In a different category, as Sec. 4 is written, is any property Mrs. Jewell acquired after Mr. Jewell’s death and disposed of before her own death. This second class of property became subject to the trust and disposition in accordance with the provisions of the will if it was on hand at Mrs. Jewell’s death, and a part of the “rest, remainder and residue” of Mrs. Jewell’s estate at the time of her death. The issue to be decided by this appeal is whether or not the funds in the several savings accounts are a part of the “rest, remainder and residue” of Mrs. Jewell’s estate.

The facts recited in describing the saving accounts make it apparent that funds in the accounts were not an in praesenti gift by Mrs. Jewell to Patricia H. Turner. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48; Gifts, 27 Tex.Jur. 170, Sec. 26. The funds in the accounts, except $1,152.06, were derived from insurance on the life of Mr. Jewell, annuities, trust funds, and the like. By operation of law the survivorship provisions of the deposit and share contracts, made with the financial institutions when the accounts were opened, diverted the funds therein from the operation of the will and vested title thereto in Patricia H. Turner at Mrs. Jewell’s death, unless the factual situation in evidence constitutes an equitable bar to such legal result. Krueger v. Williams, supra; Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926.

The parties on both sides of the appeal agree that the general purpose and intent of the joint and mutual will was to provide for the survivor and pass any remaining property to the children in equal shares. The will evidences a contract between Mr. and Mrs. Jewell to dispose of their estate in concert to accomplish a common objective. In its contractual function the will became irrevocable at Mr. Jewell’s death. Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621; Wills, 61 Tex.Jur.2d 239, Sec. 119. Courts in the exercise of equitable jurisdiction will not permit a survivor to nullify the contractual obligations of a mutual will. The Court in Weidner said:

“At the heart of a mutual will lies a contract of the parties. It would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death.”

For the sake of clarity it is emphasized that the funds involved were not disposed of by Mrs. Jewell while she was living, that is, used or spent or put beyond her reach and discretionary use; nor is the will under consideration one wherein the survivor is given the right to dispose of the property during lifetime at discretion, except that falling in the second classification previously mentioned. There is no uniformity in the footing upon which courts have rested decision in cases similar to this. See Headnote 2 portion of opinion in Weidner v. Crowther, supra. In this instance both Mrs. Patricia H. Turner and Mrs. Jewell are parties to the survivorship contract. As a party and beneficiary Mrs. Turner is in privity of estate with Mrs. Jewell. Such title as Mrs. Jewell had to the funds in the saving accounts had vested in her when she deposited the funds subject to the survivorship contract. The title that Mrs. Turner takes under the survivor-ship contract has its source in the title that was vested in Mrs. Jewell when she deposited the funds. The rule is stated in Joint Tenancy 48 Corp.Jur. Sec. 911, Subdiv. lb, in this language:

“Source of survivor’s title. The joint tenant who survives does not take the moiety of the other tenant from him or as his successor, but takes it by right under the conveyance or instrument by which the joint tenancy was created.”

In Matthew v. Moncrief, 77 U.S.App.D.C. 221, 135 F.2d 645, 149 A.L.R. 856, Justice Vinson of the United States Court of Appeals for the District of Columbia, later Chief Justice of the United States Supreme Court, said:

“* * * In many of these decisions, the expressed rationale has been that the deposit card is a contract or novation between the bank and both depositors, and that the donee-survivor takes not only as donee, but under the binding agreement negotiated between the bank and himself. * * * ”

As such privy, she stands in Mrs. Jewell’s place and cannot in a court of equity insist that the survivorship contracts Mrs. Jewell made be enforced, as to do so would be inequitable; enforcement would breach and nullify in part the contract between Mr. Jewell and Mrs. Jewell evidenced by the will. Estoppel, 22 Tex.Jur.2d 664, Sec. 4. The facts make out a case of estoppel in pais operating in bar of Mrs. Turner’s survivorship rights in the saving account contracts.

The appellant’s points of error are overruled and the judgment of the trial court is affirmed.

      . (Except a few items controlled by Section 2 of the Will).

      . If this purpose be given dominant stress, judgment of the trial court may be sustained by construing the word “estate” as it is used in Section 4 in the phrase “all the rest, remainder, and residue of the estate of such survivor” in its most extensive sense, that is, to “signify everything of which riches or fortune may consist” (Bouvier’s Law Dictionary, 3rd Revision, 8th Edition). When such meaning is ascribed to “estate”, See. 4 clearly contemplates that all property belonging to Mrs. Jewell at the time death overtakes her is meant, rather than the more restricted meaning of her property subject to administration as the estate of a decedent. The ■ funds in the savings accounts unquestionably belonged to her until life ended, and except for her contractual arrangement that diverted the funds to Patricia A. Turner, the money in the accounts would have been a part of her estate subject to the provisions of the will.


text:
    M. S. JACKSON et al., Appellants, v. MAYPEARL INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4372.
    Court of Civil Appeals of Texas. Waco.
    July 22, 1965.

      R. A. Kilpatrick, Cleburne, J. C. Hinsley, Austin, for appellants.
    Warwick H. Jenkins, Waxahachie, for appellees.
   McDONALD, Chief Justice.

This suit, filed September 30, 1964, by individual taxpayers against Maypearl Independent School District, is a direct attack on the District’s tax plan for 1964. Plaintiffs alleged (among other things) that the plan for assessing 1964 taxes was illegal; that such 1964 tax was void because the Board of Trustees failed to make any tax levy; that the tax assessment and equalization are void because the Tax Assessor-Collector and a member of the Board of Equalization were related to a member of the School Board in a degree prohibited by Articles 432 and 433 of the Penal Code, Vernon’s Ann.P.C. arts. 432, 433; and that appointment of a Tax Assessor-Collector for the Maypearl School District is violative of the State Constitution. Plaintiffs prayed that all actions of defendant District in assessing, equalizing and collecting or attempting to collect 1964 taxes be set aside and held for naught; and that defendants be permanently enjoined from carrying the 1964 tax plan into effect.

Trial was to the court without a jury which, after hearing, rendered judgment that plaintiffs take nothing.

The trial court made Findings and Conclusions as follows:

FINDINGS OF FACT
1) For many years prior to January 1, 1964, the defendant School District had its taxes collected by the Tax Assessor-Collector of Ellis County, the basis and assessed valuation for such taxes being the same as that of the State and County, which was 20% of the market value of property within the District.
2) Needing more money in order effectively to exist, the School Board of the District appointed its own Assess-sor-Collector of taxes on or about January 1, 1964, and agreed to pay her 3% of the net taxes collected. Her husband, who later sat on the Board of Equalization, without pay, was a first cousin to one of the seven Trustees of the School Board, all of whom also served without' pay.
3) The School Board after calculating its need for money, instructed the Assessor-Collector to use the previous assessments of Ellis County of 20% market value and to increase these valuations to 34% of market value which in effect amounted to a raise on the assessed valuation in the District of 70%. The Board of Equalization, with few exceptions, followed and sustained this increased assessment from 20% to 34% of market valuation.
4) All officers or officials of the School District were valid de facto officers and were so recognized, whether or not they were valid de jure officers at all times.
5) In the assessment and collection of taxes a faithful effort was made by defendants and the officers of the School District to comply with the law in all respects as they understood it to be.
6) A valid tax levy was made by the School Board during 1964 of $1.58 upon the $100 valuation in their approval of the budget so fixing and stating, same being the same amount of the annual tax levy for many previous years.
7) The action taken by the defendants and the various officers was sufficient to make such tax levy a valid tax lien upon the property within said School District.
8) None of the plaintiffs have been able to show beyond the fact that their taxes have been increased from 20% to 34% of the $100 valuation, that they or anyone else have been unfairly dealt with, injured or discriminated against.
CONCLUSIONS OF LAW
The law is with the defendant as to a) the levy of a tax for the year 1964; as to b) alleged nepotism; and as to c) the method of assessment in view of the facts, and as to all other imperfections alleged or shown.

Plaintiffs appeal on 13 points, contending the trial court erred:

1) In finding and concluding that a valid tax levy was made by the School Board of $1.58 upon the $100 valuation for 1964.
2) In finding and concluding that the Assessor-Collector and Board of Equalization member Brigman were valid de facto officers.
3) In finding that the Assessor-Collector and the Board of Equalization, with few exceptions, increased all valuations by 70%.
4) In failing to hold the appointment by the District of a Tax Assessor-Collector and Board of Equalization to be unconstitutional.

Plaintiffs 1st contention is that the School Board made no valid tax levy for 1964. The record reflects that the School Board adopted the 1964 — 65 Budget on August 17, 1964 and further that such budget expressly provides that the total tax rate is $1.58 of which the maintenance rate is $1.50 and the debt service rate is $.08. Further, a letter was sent to each taxpayer in the district advising, among other things, that the tax rate was $1.58. The Secretary of the Board testified that all Board members voted for the Budget which set the tax rate at $1.58 and that this was the Board’s way of adopting the tax rate each year. We think the trial court properly found that a valid tax levy was made by the School Board.

Plaintiffs’ 2nd contention is that because the Assessor-Collector of taxes, and Board of Equalization. member Brigman, were related to School Board member Jackson within a degree prohibited by Articles 432 and 433 that such Tax Assessor-Collector and Board of Equalization member are neither de facto or de jure officers and that all acts performed by them are void. Board of Equalization member Brig-man is a first cousin of School Board member Jackson. The Tax Assessor-Collector is Brigman’s wife. Plaintiffs assert that the Tax Assessor-Collector was not a de facto or de jure officer, and that the District’s tax assessment is therefore void; and that the Board of Equalization consisted of 3 members; that one member of the Board resigned, leaving Brigman and one other; that Brigman was not a de facto or de jure officer, so that no quorum was present on the Board of Equalization. The record reflects that all seven members of the School Board voted to appoint Mrs. Brigman; that she took an oath of office as Tax Assessor-Collector; met all requirements for the office; and performed all of the duties of Tax Assessor-Collector of the School District for many months, including the collection of some $12,000 in taxes.

Articles 432 and 433 Texas Penal Code are penal statutes declaring that no officer including School Board members, shall vote to employ any person related to them in the 2nd degree by affinity or 3rd degree by consanguinity, when the compensation of such appointee is to be paid from public funds. Article 437 Penal Code, makes violation a misdemeanor, punishable by fine of not less than $100 or more than $1000. The statute is directed at the officers making the appointment, and while a' person so appointed in violation of the statute may not be a de jure official, the statute does not declare the acts of the person wrongfully appointed to be void.

The general rule is that when an official person or body has apparent authority to appoint to public office, and apparently exercises such authority, and the person so appointed enters on such office, and performs its duties, he will be an officer de facto, notwithstanding there was want of power to appoint in the body or person who professed to do so. 43 Am.Jur. Sec. 481, p. 233; Martin v. Grandview Ind. Sch. Dist., Tex.Civ.App., Er.Ref., 266 S.W. 607. Norton v. Shelby Co., 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178.

We think under the facts the trial court was correct in holding both the Tax Assessor-Collector and the Board of Equalization member de facto officers, whether or not they were de jure officers. Moreover, no violation of Article 432 is shown by the appointment of Board of Equalization member Brigman since he received no remuneration for his services.

Plaintiffs’ 3rd contention is that the trial court erred in finding that the basis for taxation purposes was the 20% valuation used by the County and State, increased by 70%. Plaintiffs say that such raise was not applied to personal property and for such reason the tax plan is erroneous. Assuming that such was the case, plaintiffs’ contention avails them nothing.

Plaintiffs filed their suit on September 30, 1964 after the tax plan was completed and in operation. Once a plan of taxation is put into effect the taxpayers must assume the onerous burden of proving substantial injury. Such burden here involves a showing by the taxpayer that his taxes or valuation is actually excessive. If the taxpayers’ taxes (and valuation) are not excessive, even though the tax plan be fundamentally erroneous, such taxpayer is not entitled to relief. The plaintiffs tendered no evidence of the market value of any plaintiff’s property. Since there is no showing as to the market value of any plaintiff’s property, it cannot be shown that any plaintiff’s property was in fact assessed excessively. Milligan v. Corsicana Ind. Sch. Dist., Tex.Civ.App., n. r. e., 381 S.W.2d 97; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

Plaintiffs’ final contention is that the appointment of a Tax Assessor-Collector and Board of Equalization by an Independent School District is unconstitutional. Plaintiffs assert that Article 8, Sections 14 and 18 of the Texas Constitution, Vernon’s Ann.St., requires the School District taxes to be assessed and collected by the County Tax Assessor-Collector and to be equalized by the Commissioners’ Court as the Board of Equalization. The foregoing sections are general. Article 7, Section 3, Constitution of Texas, provides that the Legislature may provide for the formation of school districts, and “pass laws for the assessment and collection of taxes in all said districts.” The Legislature passed Article 2791 Vernon’s Ann. Tex.Civ.St., which creates the office of Tax Assessor-Collector of Independent School Districts and provides for the appointment, qualification and duties of same. Such Article further provides for the appointment of a Board of Equalization for the School District. We think the foregoing statute constitutional and that the defendant district had authority thereunder to appoint a Tax Assessor-Collector and Board of Equalization for the School District. While not passing on the point of constitutionality directly, our courts have assumed that independent school districts have the right to assess and equalize their own taxes. Aldine Ind. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578; Hooks v. East Tex. Pulp & Paper Co., Tex.Sup.Ct., 369 S.W.2d 308.

All of plaintiffs’ points and contentions are overruled.

Affirmed.

Justice TIREY sat in oral argument but thereafter ascertained that he was related to one of the appellants within the 3rd degree, and did- not participate further.