author: CLAYTON, Justice.

text:
    INTERCOAST JOBBERS & BROKERS, Appellants, v. Clyde E. BARBER, Appellee.
    No. 5841.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 14, 1966.
    Rehearing Denied Jan. 4, 1967.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, and Ray Stoker, Jr., Odessa, for appellants.
    Warren Burnett and Robert D. Pue, Odessa, for appellee.
   OPINION

CLAYTON, Justice.

This is an appeal from an order of the trial court overruling- a plea of privilege. Appellee filed suit in Ector County, Texas against appellant for the death of appellee’s wife in a truck-automobile collision on November 30, 1963. Appellant Intercoast Jobbers & Brokers presented its plea of privilege to be sued in Dawson County, Texas, where the principal place of business of Intercoast is located at Lamesa, Texas. The trial court overruled the plea of privilege and Intercoast appealed.

Appellant presents two points of error: First, error in overruling the plea of privilege because the evidence at the hearing on the plea established as a matter of law that Alex E. Daugherty, Intercoast’s employee, was outside the course and scope of his employment at the time and place of the accident; and second, error in overruling the plea because the record contains no evidence that an act or omission of negligence on the part of Daugherty or Inter-coast occurred in Ector County, Texas.

No request for findings of fact or conclusions of law was made, and none were filed by the court. Under such circumstances,

“ * * * The trial court’s judgment * * * implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’” (Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114 (1951).

And:

“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” (Citing cases) (James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

Briefly, the circumstances, taken from the Statement of Facts, are: Except for about six or eight weeks, Alex E. Daugherty, the driver of the truck, had been an employee of Intercoast Jobbers & Brokers, grain and produce truckers, about five or six years, and had just returned to work for appellant immediately before the accident in question. Ón the day of the accident, Daugherty was the driver of a company tractor and trailer loaded with grain, to be carried from Three Leagues, Texas, to California. His home was in Odessa, Texas, and he had been given permission by his employer to spend the night there and start from there for California the next day. This concession was not unusual, although he had no duties to perform in Odessa for his employer. When he approached Odessa on his way to his home, he took the by-pass route around Odessa on his way to his home to miss the lights and traffic in town, and he got on the “Andrews Highway”. Normally, in going to California from where the truck was loaded in Three Leagues, Texas, Daugherty would have gone straight through Odessa on Highway 30, if he were not going to his home. But by the time Daugherty got the trailer loaded and started out from Three Leagues, Odessa would probably have been a normal stopping place for the night, whether he lived there or not. At any rate, on the occasion of the accident, in order to reach his home, Daugherty, about 4:45 in the evening, turned left on to 81st Street from going north on the Andrews Highway, crossed the south-bound highway and entered the intersection of 81st Street with the service road paralleling the Andrews Highway, when there was a collision between the tractor-trailer and an automobile being driven north on the service road by Mrs. Barber, who was killed. There was a “yield«right of way” sign facing Daugherty at the intersection of 81st Street and the service road, and Daugherty didn’t come to a complete stop at the sign, but to a “slow running stop”, “barely rolling”. He stated that Mrs. Barber was “going pretty fast”, a matter that he judged by her skid marks which “looked to me in excess of eighty feet”, and “how far she skidded sideways and the damage she done to the truck and the car and how far she slid my truck sideways.” However, Daugherty states that he didn’t actually see the car of Mrs. Barber until he heard her brakes, and the collision occurred immediately after that. Daugherty testified that the place where the accident occurred was outside of, and north of Odessa, about four miles from downtown Odessa.

As to the first point of error, relative to course and scope of employment at the time and place of the accident, the controverting plea to the plea of privilege relies upon section 9a of Article 1995, Vernon’s Ann.Tex.Civ.St., the venue statute. That section provides:

“9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

Section 9a is thus an exception to the general venue rule. The law applicable to an exception is stated in Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951):

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.” (Citing cases).

Such exceptions cannot be established by implication or doubtful construction. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 613 (1948).

Plaintiff’s original petition charges negligence on the part of Daugherty as agent, servant and/or employee of Inter-coast. It follows that plaintiff must prove that Daugherty was in the course and scope of his employment in order to make Inter-coast liable, and since the trial court’s judgment overruled the plea of privilege of In-tercoast, every reasonable intendment must be resolved in favor of such judgment. Appellee relies strongly on the decision in Louis v. Youngren, 12 Ill.App.2d 198, 138 N.E.2d 696, 701, an Illinois case decided in 1956, where the facts were similar, from which the following is quoted:

“* * * We think reasonable men would agree that in the absence of an order to take a specific route, there was no substantial deviation when Earle drove to the Youngren terminal to pick up his clothes and then drove to La Crosse, Indiana, to stay overnight at his own home. Therefore, the court was not in error in refusing to give the requested instructions on deviation.”

However, there is no showing that the Illinois provisions with regard to deviation and departure in such cases are the same as those in Texas. Appellant relies upon Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282, 283, 284, 122 A.L.R. 854 (Com.App., 1939, adopted opinion) where it is held, in answer to a certified question:

“ * * * It is the firmly settled rule that when a servant completely departs from his work to accomplish some purpose of his own not connected with his employment, the relation of master and servant is thereby temporarily suspended and the master is not liable for his acts during the period of such suspension.”

This case differentiates certain cases which are relied upon as exceptions to the general rule:

“Many of the cases which are relied upon as departures from, or exceptions to, the above rule may be grouped into two classes, first, those in which the departure was not wholly disconnected from the employment, but in which there was a mingling of the personal purpose of the servant with the doing of the master’s work, and, second, those in which the departure was but a deviation and not a complete turning aside.”

The De Frates case is cited favorably in the case of Frontier Theatre v. Whisenant, 291 S.W.2d 395 (Tex.Civ.App., 1956; n. w. h.), and Mitchell v. Ellis, 374 S.W.2d 333 (Tex.Civ.App., 1963, wr. ref.), as well as others.

We are inclined to the opinion that the case before us could fall into at least the first of the two classes of cases set out in De Frates, supra, as cases relied upon as departures from, or exceptions to, the general rule of temporary suspension of the master and servant relationship. The court in. De Frates speaks of an exception to the general rule as one in which “the departure was not wholly disconnected from the employment”, as distinguished from the case before it, which was a case “of a complete departure for a purpose not connected with the employer’s business and not with the employer’s consent”. In the case before us we have, in the deposition testimony of one of Daugherty’s employers, the following questions and answers which serve to differentiate our case from that described by the court in De Frates:

“Question: And, he went from here to Odessa, as far as you know, with the intention of spending the night at his house ?
Answer: Yes. I gave him permission to spend the night.
Question: And, based on what you know, he was going to leave for California the next morning?
Answer: Yes, sir.
Question: And the accident happened there in Odessa while this particular transaction was going on? That is, leaving here going to California?
Answer: Yes.”
* * * * * *
“Question: So far as the use of the truck goes, on the day that the accident happened, there is no question or any implication about him having your permission to use the truck, is there?
Answer: Well, I gave him permission to go by the house.”
* * * * * ⅜
“Answer: But I did give him permission to go to the house. He had no duties to do at the house or anything like that. He had been gone for probably a week and had to go by the house and get some clothes or something and I told him to go by his home and get the clothes and spend the night and to leave tomorrow morning.”

However, the same employer did testify that Odessa was not on the route from Lamesa, his place of business, to California; and that the employee, Daugherty, actually had no duties to perform for. the employer in Odessa on the day of the accident.

We refrain from rendering a definite decision on the foregoing portion of section 9a of Article 1995, V.A.T.S., for the reason that appellee has, in our opinion, wholly failed to establish another necessary element of 9a as an exception to the general venue rule, to-wit: that an act or omission of negligence occurred in the county where suit was filed. Under the circumstances of this case, this would have to be an act or omission of negligence of the servant, Daugherty, occurring in Ector County, where suit was filed. We have carefully examined the record before us, and believe the following constitutes the entire testimony as to where the collision (if negligent on the servant’s part), which has been previously described, occurred:

Mr. Clyde Barber, widower of deceased:
“Question: Where was your wife going when the accident happened?
Answer: She was coming out there to pick me up at quitting time.”
3fc * * ⅜ * *
“Question: What time did you get off that day?
Answer: 5:00 o’clock.
Question: Isn’t that about what time the accident happened ?
Answer: Yes, sir. She lacked just two blocks getting to me.
Question: What direction was she going?
Answer: North.
Question: On what highway?
Answer: Well, that’s 385 out there.
Question: Is that the Kermit Highway ?
Answer. Yes, sir. Kermit Highway. And she was over here on this little service road.”
* * * * * *
“Question: She was off of the highway?
Answer: Yes, sir.
Question: And this truck had come off of what?
Answer: It had come off of 385, come straight across like this.
Question: And there was a yield right of way sign for the truck coming onto the access road?
Answer: Yes, sir.
Question: What is the speed limit out there ?
Answer: Well, that’s a sixty mile zone on that little service road, I think.
Question: Why was she on the access road instead of on 385 ?
Answer: Well, it was just handier for her to get out of traffic and everything. She just always, it was clear down here. When she come to that little road she always just got on it and then she was' through, wouldn’t have to work any more crossovers or such like. Just on that side of the road where she was supposed to be.”

Mr. Alex Daugherty, driver of the tractor-trailer:

“Question: All right. In other words, they just loaded you out and you left from there and went on. What route did you go from there to Odessa ?
Answer: * * * Well, I came west from Three League and hit the Midland and Lamesa Highway and went to Midland, hit Highway 80 and then west to Odessa.”
* * * * * *
“Question: The way I understand it, you were — had got to Odessa and you were going north on highway or what would be called the Andrews Highway?
Answer: Right.
Question: And you had turned left and crossed the south bound highway?
Answer: Right.
Question: And the accident happened on the service road?
Answer: Right.
Question: Now, then, what was the name of the street that you were going on?
Answer: 81st Street.
Question: 81st Street?
Answer: Yes, sir.
Question: So it happened at the intersection of the service road—
Answer: And 81st Street.
Question: —running parallel to the Andrews Highway and 81st Street?
Answer: Yes, sir.”
⅜ ⅜ iji ‡ ⅜ ⅜
“Question: Where did the accident occur in Odessa? Did it happen in Odessa or outside?
Answer: It happened outside of Odessa.
Question: All right, sir. Where was the place that the accident occurred with relation to Odessa?
Answer: North of Odessa.
Question: All right. How far north of Odessa?
Answer: I imagine it would be approximately four miles from downtown.
Question: All right, sir, on this particular day, what route did you take as you approached Odessa?
Answer: The loop around Odessa. I don’t remember the number of it. By pass route.
Question: You turned off to the right and went around Odessa and got on the Andrews Highway?
Answer: Yes, sir.
Question: What was your reason for taking that route ?
Answer: Well, it missed the lights and traffic.
Question: All right. Did you take that route so that you could get to your house ?
Answer: Yes, sir.”

Appellee has cited the 1966 Texas Su-préme Court decision in Southwestern Investment Company v. Shipley, 400 S.W.2d 304, 306, as in aid of his position in the case before us that venue has been established in Ector County, of which Odessa is the county seat. He quotes from that decision:

“ * * * For many years our courts have taken judicial notice of the subdivision of the State into counties, and also of the location of cities and towns which are county seats. In a number of cases involving obligations performable in a named city or town which was the seat of government for the county of suit, this judicial knowledge has enabled the plaintiff to maintain venue under Subdivision 5 without proving the location of the city or town designated in the contract as the place of performance.” (Citing cases).

The Supreme Court in the same case then goes farther:

“ * * * Be that as it may, the boundaries of judicial knowledge have now been extended to the point that courts may, in a civil case, judicially notice ‘the certain and indisputable fact of common knowledge’ that a city is located entirely within a particular county even though the city in question is not the county seat. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521. See also Dormer v. Singleton Farm and Ranch, Tex.Civ.App., 351 S.W.2d 377 (no writ).”

But the cited opinion was written under subdivision 5 of Article 1995, and from the record in the case before us, the opinion in the Shipley case can be of no appreciable help here, where the testimony showed that the accident occurred, not in Odessa, located in and county seat of Ector County, but at some point outside of Odessa, with no enlightenment as to the county in which the occurrence took place. We believe the case of Miller v. Burke, 401 S.W.2d 852 (Tex.Civ.App., 1966; n. w. h.) to be practically on all fours with the case before us. In that case, an automobile accident case, the appeal of Miller was from an order of the District Court of Harris County (non-jury) overruling his plea of privilege to be sued in Cherokee County, the county of his residence. Complaint was made in appellant’s first point of error that appellee had failed to introduce any evidence concerning location and therefore failed to prove by a preponderance of the evidence that the event complained of occurred in Harris County, Texas. The Opinion of the Court of Civil Appeals recites from the case of Lynch v. Millican, 304 S.W.2d 410, the following:

“ 'It is well settled that with the venue challenged, under proper plea, by one sued without his county, the burden not only to allege, but to prove that the case is within one of the exceptions to the statute rests on plaintiff * * * and to defeat the plea of privilege, he must both plead and prove the facts relied on to bring the case within one of the exceptions. The issue made is tried in the ordinary way, and the truth as to the facts in issue is to be ascertained by the introduction and weighing of evidence offered by both sides. In short, a plaintiff seeking to maintain venue in another county must prove by a preponderance of the evidence the facts that bring his cause within one of the exceptions to Article 1995.’ ”

The court goes on to say:

“We have carefully read the statement of facts and we find no evidence whatsoever in the statement of facts stating that the accident occurred in Houston or in Harris County, Texas.”

and continues:

“Going back to the statement made by the court and assuming, without deciding, that the foregoing constituted a finding of fact by the trial court, it is not binding on the court here under the doctrine announced by our Supreme Court in Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, wherein the Supreme Court said:
“ ‘There is nothing in the rules which provides that in a case tried before the court without a jury the findings of fact are conclusive on appeal when a statement of facts appears in the record.’ ” (as is true in the case before us). “Citing many cases. See also Tex.Digest, Appeal and Error, ®=5265. That is the exact situation here. So far as we have been able to find the Supreme Court has not changed the foregoing rule.”

The Civil Appeals opinion then concludes:

“There being no evidence whatsoever in the statement of facts that the accident occurred in Harris County, Texas, plaintiff has wholly failed to carry his burden, and the judgment of the trial court is accordingly reversed and rendered ⅜ ⅜ ⅜ »

Following the opinion of Miller v. Burke, and on the basis of the second point of error presented to us, we are constrained to sustain such point of error and to reverse and render the holding of the trial court herein, which overruled the plea of privilege, and to order the cause transferred to Dawson County, Texas. The Clerk of the trial court is directed to proceed in accordance with Rule 89, Texas Rules of Civil Procedure, and if the date is applicable, in accordance with such rule as amended, effective January 1, 1967.

Reversed and rendered.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    GENERAL ASSOCIATION OF DAVIDIAN SEVENTH DAY ADVENTISTS, INC., Appellants, v. GENERAL ASSOCIATION OF DAVIDIAN SEVENTH DAY ADVENTISTS et al., Appellees.
    No. 4533.
    Court of Civil Appeals of Texas. Waco.
    Nov. 3, 1966.
    Rehearings Denied Nov. 23, 1966.

      Charles E. Wallace, Carl Anderson, Waco, for appellants.
    David Kultgen, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment impressing a trust on assets and properties of the defunct General Association of Davidian Seventh Day Adventists, in favor of all persons living on March 11, 1962, who had contributed to the “Second Tithe” fund of such association. The judgment appointed Tom Street receiver of the properties; and required him to sell and liquidate the property subject to approval of the Court.

Plaintiff General Association of Seventh Day Adventists, Inc. brought this suit against the General Association of Seventh Day Adventists and Tom Street, Trustee, to set aside a trust agreement conveying all assets of the General Association of Davidian Seventh Day Adventists to Tom Street, Trustee, for sale and distribution to named members; and for title and possession of such assets. Plaintiff alleged the General Association of Davidian Seventh Day Adventists was a defunct church; that on March 11, 1962 a resolution was passed by a portion of its membership dissolving the organization and appointing Tom Street, Trustee, of all assets for sale and specified distribution. Plaintiff asserted the conveyance to Street of the properties for distribution unlawful, and that it was the rightful successor to defendant association’s properties.

Defendants General Association of Davidian Seventh Day Adventists and Tom Street answered, alleging that the association was a religious denomination which was dissolved by resolution of its members on March 11, 1962; that prior to dissolution it conveyed the assets of the association to Tom Street, Trustee, for sale and distribution to named members; and prayed for declaratory judgment confirming the dissolution of the association, and of the conveyance of the assets to the Trustee.

The Davidian Seventh Day Adventist Association (composed of some former members of the old association) intervened, alleging that members of the old association had contributed moneys to a fund called the “Second Tithe” which funds were represented to be for the purpose of taking care of contributors in old age. Inter-venors prayed that they be declared owners of the assets of the defunct association, and alternatively that such assets be impressed with a trust in favor of persons who had contributed to such “Second Tithe.”

The General Association of Davidian Seventh Day Adventists was established about 1930 under the leadership of a Brother Houteff. From a small beginning the association grew to some 1000 members. The members paid a “First Tithe” which was for the spread of the gospel; and many members paid a “Second Tithe” which was for the purpose of their being cared for in old age. Brother Houteff died; Mrs. Houteff was appointed Vice President of the association, and in early 1962 sent notices calling a meeting of the association to be convened on March 11, 1962. At the March 11, 1962 meeting, dissolution of the association was voted by those present, purporting to act for the association. The group who voted the dissolution conveyed the properties and assets of the association to Tom Street as Trustee for named members of the association. Plaintiff filed this suit to set aside the trust, and to acquire the assets of the defunct association.

Trial was to a jury which found:

1,2) The General Association of Seventh Day Adventists is a defunct church; which may not be revived in a reasonable time.
3,4) The General Association of Seventh Day Adventists, Inc. is a church of like faith as the defunct group; and is a successor organization of the defunct group.
5, 6) The Davidian Seventh Day Adventists Association is a church of like faith as the defunct group; and is a successor organization of the defunct group.
7) The Executive Council of the old association had authority to appoint Mrs. Houteff Vice President of the old association.
8) Notices of the Session of March 11, 1962 were not sent to all members entitled to receive them.
9) Proxy votes used in the March 11, 1962 session were not actually received.
10) Contributors to the Second Tithe were induced to make such contributions by representations as to the purposes for which such Tithe was to be used.
11) Contributors relied on such representations.
12) Contributors to the “Second Tithe” would not have contributed if they had not relied on such representations.
13) The assets and property here involved were purchased with “Second Tithe” funds.
14) The defunct association represented it would hold the assets in trust for the use and benefit of the contributors.
16) There was not a majority of the membership of the defunct association either present or by proxy voting for the resolution on March 11, 1962.
17,20) Plaintiffs and Intervenors did not wait an unreasonable length of time before bringing this suit, after discovering the assets of the defunct association had been transferred to Tom Street, Trustee.
19) It was not the understanding of the members of Intervenor Association that a contributor had to remain a member of the (defunct) association in order to participate in benefits of the “Second Tithe.”
22) A majority of those present in person at the meeting of March 11, 1962 voted for the resolution to dissolve.
23) A majority of those present in person or by proxy at the meeting of March 11, 1962 voted for the resolution to dissolve.

The trial court entered judgment that the General Association of Davidian Seventh Day Adventists was owner of the properties involved; was a defunct church; that such properties were acquired with funds contributed to the “Second Tithe”; that such funds were not for general church purposes but were for the caring for contributors in old age; that plaintiffs and inter-venors are not entitled to the funds; that the resolution transferring the properties to Tom Street, Trustee, was ineffective to modify the rights of the parties; that such assets are impressed with a trust of which all contributors who were living on March 11, 1962 are beneficiaries; that defendant association being defunct, is no longer qualified to act as trustee; that it will not be revived within a reasonable time; that the appointment of a Receiver is required to take care of those being cared for at the time the old association became defunct, and to pay bequeathment certificates.

The Court further decreed all persons living on March 11, 1962 who had contributed to the “Second Tithe” beneficiaries of the trust; required the Receiver to file inventory of the properties; a list of “Second Tithers” to the best of his ability; to file bond and oath; and further ordered Receiver reimbursed for his expenses and compensated for his services.

Plaintiff appeals on IS points, contending:

1) There is no evidence, or insufficient evidence, to support the jury’s finding (Issue 13) that the assets were purchased with “Second Tithe” funds; and the undisputed evidence is that the assets and properties were purchased from a common fund which included both “First Tithe” and “Second Tithe” funds.
2) The trial court erred in overruling its motion for judgment appointing plaintiff Receiver to take charge of all assets of the defunct association.
3) The trial court erred in failing to apply the doctrine of cy pres.
4) The trial court erred in permitting the trust to fail for want of a trustee.
5) There were no pleadings and no evidence to support the judgment.
6) The trial court erred in appointing a receiver not qualified under Article 2294.
7) The judgment is void because Article 4412a, V.A.T.S. requires the Attorney General to be a party to suits pertaining to a charitable trust.

Contention 1 complains of the jury’s finding that the properties here involved were purchased with “Second Tithe” funds; and asserts the evidence undisputed that such were purchased from a common fund which included “First Tithe” and “Second Tithe” funds.

“First Tithe” funds were funds which had been contributed for gospel work. “Second Tithe” funds were funds which had been contributed by the members of the association for the purpose of the association caring for the contributors in their old age. Plaintiffs concede in their brief that “Second Tithe” funds were subject to a trust. While there is evidence that the assets and properties here involved were purchased with “Second Tithe” funds, if such properties were purchased with commingled “First” and “Second” Tithe funds, the cestui’s right of recovery is not destroyed by reason of the fact the Trustee commingled the trust property with its own property. The entire commingled fund or property will be treated as subject to the trust. Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493. And if the Trustee invests the trust fund or its proceeds in other property, the cestui que trust may follow the fund into the new investment. Kennedy v. Baker, 59 Tex. 150. And where the Trustee mingles the trust money with his own, whenever he pays out * * * he is presumed to have paid out with his own money. Continental Nat. Bank v. Weems, 69 Tex. 489, 6 S.W. 802.

Under the authorities cited, the beneficiaries are entitled to follow the trust funds into the assets and properties here involved.

Plaintiff’s 2nd contention is that the trial court erred in not appointing it to take charge of all assets of the defunct association under Articles 2293 et seq., Vernon’s Ann.Tex.St. These statutes concern the administration of properties belonging to defunct churches. The property which we are concerned with is property subject to a trust in favor of “Second Tithe” contributors; and Articles 2293 et seq., V.A. T.S. are inapplicable.

Plaintiff’s 3rd contention is that the trial court erred in not applying the cy pres doctrine. The cy pres doctrine applies to a charitable trust, and has no application here. This trust is not charitable. This is a trust, the assets of which were to give old age protection to the contributors.

Plaintiff’s 4th contention is that the trial court erred in permitting the trust to fail for want of a trustee. The trial court did not permit the trust to fail for want of a trustee. When the association became defunct and broke up, the accomplishment of the trust became impossible. (Plaintiff has only 6 members; intervenors but few more; some 8 groups claim to be successors to the old association). If the purposes of a valid trust, as here, become impossible of accomplishment, the trust will be terminated. Restatement of Trusts, Sec. 335; Scott Trusts, Sec. 335.

Plaintiff’s 5th contention is there are no pleadings and no evidence to support the judgment. Intervenor’s pleadings and the evidence support the judgment. And where a trust fails, the appointment of a Receiver to take charge of and dispose of the trust corpus is proper. Bogert, Trusts & Trustees, Secs. 14 and 861; O’Dell v. Grubstake Inv. Ass’n, Tex.Civ.App., Er. Dis., 38 S.W.2d 151; Crawford v. Crawford, Tex.Civ.App. (nwh), 163 S.W. 115; Hunt v. State, Tex.Civ.App. (nwh), 48 S.W.2d 466.

Plaintiff’s 6th • contention is that Article 2294 precludes the appointment of Tom Street as Receiver. Tom Street was not a party, an attorney in the case, or otherwise a person interested in an action for the appointment of a receiver, as precluded by Article 2294.

Contention 7 complains that the judgment is void because Article 4412a, V. A.T.S., requires the Attorney General to be a party to suits pertaining to a charitable trust. The “Second Tithe” trust is not a charitable trust, and Article 4412a is inapplicable.

Defendants, by counter-point, assert the trial court erred in not confirming title to the property in Tom Street as Trustee.

Plaintiff’s points, (and defendants’ counter-point) are overruled.

Affirmed.


author: PARKER, Justice. STEPHENSON, Justice

text:
    GULF OIL CORPORATION et al., Appellants-Appellees, v. SHELL OIL COMPANY et al., Appellees-Appellants.
    No. 6857.
    Court of Civil Appeals of Texas. Beaumount.
    Oct. 20, 1966.
    Rehearing overruled Nov. 9, 1966.

      Ben G. Sewell, Fred A. Lange, Joyce Cox, Claude C. Roberts, W. G. Winters, Jr., Houston, for appellants and appellees.
    W. R. Eckhardt, W. R. Choate, Robert L. Bradley, Larry W. Morris, George H. Hagle, Houston, for appellees and appellants.
   PARKER, Justice.

Kirby Lumber Corporation, hereinafter called “Kirby”, and its lessee, Gulf Oil Company, hereinafter called “Gulf”, brought this action against the defendants, hereinafter designated, seeking a declaration with respect to three questions:

1. Whether the South One-half (½) of the Clayton Harper League was the separate property of A. B. Hardin (Sr.), or the community property of A. B. Hardin (Sr.) and his second wife, Maria Devers Hardin.
The trial court found that title to such land was community property of A. B. Hardin, Sr. and Maria Devers Hardin.
2. Whether after acquired title, if any, passed under the deed dated March 14, 1894 from Abner McMurtry to John H. Kirby.
The trial court found that no after acquired title passed under said deed.
3. Whether one-half of the interest of the five minor children of Sarah Hardin McMurtry in the South One-half (½) of the Clayton Harper League vested in George W. Davis and William F. Hardin under and by virtue of the deed, assignment, and power of attorney dated November 28, 1873.
On this issue, the trial court held that said power of attorney and deed dated November 28, 1873 was void as to the McMurtry minors upon the execution and delivery thereof, but further held that the said McMurtry minors after reaching majority and before March 14, 1894 knew of said power of attorney and deed, accepted the benefits of the performance rendered thereunder and accepted, confirmed, adopted, ratified and acquiesced in said power of attorney and deed, and, that accordingly the McMurtry minors and those holding under them, including Gulf and Kirby, are bound by the power of attorney and deed and are estopped to deny that one-half of the rights, titles, or interests of the Mc-Murtry minors passed to and vested in the said George W. Davis and William F. Hardin.

The defendants in this action were:

(a) The Davis Group: Republic National Bank of Dallas, as Independent Executor and Trustee of the Estate of Wirt Davis, Deceased; Wirt Davis, II; Patricia Davis Beck and husband, Henry C. Beck, Jr; and Camilla Blaffer and husband, John H. Blaffer.
(b) The Humphreys Group: John S. Boles, Administrator with the Will Annexed of the Estate of Geraldine D. Humphreys, Deceased; and The Hum-phreys Foundation.
(c) Claud B. Hamill.
(d) Shell Oil Company, hereinafter called “Shell”
(e) The Campbell Group: Larry W. Morris; Walton D. Taylor; Roy C. Sew-ell and Ben G. Sewell, each individually and as Independent Executors of the Estate of Bonner S. Dorset, Deceased, and as Trustees under the Will of the said Bonner S. Dorset, Deceased; The Dorset Foundation, Inc.; Lucille C. Bailey and husband, Lloyd F. Bailey, Sr.; Phonsie Campbell; G. C. Campbell and Marshall Dougherty.
(f) The Karsten Group: Montana Properties, Inc.; The Chase Manhattan Bank of New York City; The Regents of the University of California; New York Life Insurance Company; Republic National Bank of Dallas in its capacity as Trustee of the Savings and Profit Sharing Retirement Fund of Republic National Bank employees, and as Trustee for The Chase Manhattan Bank, the Regents of the University of California, and New York Life Insurance Company; Veda Mae Glesby; Gerald Rauch; Leonard Rauch and Harry Dow as Independent Executors of the Estate of Morris Rauch, Deceased; Birdie Rauch, widow of Morris Rauch; Veda Mae Glesby, Gerald Rauch, and Leonard Rauch, Individually; George Bergman and wife, Rheba Bergman (formerly Rheba J. Spiner), Individually and as Independent Executors of the Estate of Gertrude Pulaski, Deceased; Jewel Pulaski; Dan J. Pulaski; Robert Sud and Dean Meyers, Individually, and as Independent Executors of the Estate of Louis Pulaski, Deceased, joined by Betty Ann Sud, Individually ; Floyd L. Karsten, Individually and as Independent Executor of the Estate of Maxine Karsten, Deceased; The Floyd L. Karsten, Jr. Foundation; Ray-bourne Thompson; Oil and Gas Property Management, Inc.; Nafco Oil and Gas, Inc.; Ruth Freed Pulaski and Dean Myers, Trustees of the Ruth Freed Pulaski Trust, and as Independent Executors of the Estate of Edward J. Pulaski, Deceased; George L. Nye, Trustee; Cynthia W. Mitchell and husband, George P. Mitchell; Ethel Janet Boyle, and husband, W. Stewart Boyle; The Culver Educational Foundation; Malcolm C. Damuth, Trustee; and Harry Leyendecker.

The questions determined by the trial court make a difference in the ownership of the land involved among the parties.

A. B. Hardin, Sr. was married twice. By his first marriage one child was born in 1819, namely, Augustus Blackburn Hardin. The first marriage of A. B. Hardin, Sr. is presumed to have been dissolved by divorce, for A. B. Hardin, Sr. married Maria Devers in 1828. Maria Devers Hardin died intestate in 1844, survived by her husband, A. B. Hardin, Sr. and five children by their marriage. In 1838 Certificate No. 34 for one league and labor of land was issued to the heirs of Clayton Harper. The sole heir of Clayton Harper was Margaret Harper. In 1839 William Hardin, guardian of Margaret Harper, a minor, executed a locative contract with A. B. Hardin, Sr. under which the Harper League in Liberty County was located in 1856. A. B. Hardin, Sr. died intestate in 1871.

In the suit of Abbott et al. v. Gulf Production Co. et al., Tex.Civ.App., 100 S.W.2d 722, in an opinion by this court of December 23, 1936, writ of error dismissed, this question of title was before this court. Reference is made thereto for its holdings and history of the title. R. W. Abbott, et al, plaintiffs, sued in trespass to try title for the south half of the Harper League. The defendants, Gulf Production Co., et al, had a plea of not guilty. Other pleadings were before the court but were dismissed. This court held:

“that A. B. Hardin had a valid contract with the guardian of the minor and that under this contract he acquired a vested interest and that, operating under this contract, the land in controversy was located and by virtue of this contract he acquired a one-half interest in the land.”

All parties to this cause deraign title under the successful defendants in the suit of Abbott et al. v. Gulf Production Co. et al., supra. In defeating the prima-facie case of Abbott, et al, the defendants, Gulf, et al, relied upon the A. B. Hardin, Sr. contract of 1839 as vesting an interest in him on that date which ripened into title upon location of the land. Such defendants had no other title to assert. The original right and inception of title in A. B. Hardin, Sr. is the contract of 1839. This court, in the 1936 opinion, based this conclusion upon the case of Wren v. Harris, 78 Tex. 349, 14 S.W. 696, 697. Other cases in point are Manchaca v. Field, 62 Tex. 135 (S.Ct.1884), and Welder v. Lambert, 91 Tex. 510, 44 S.W. 281 (S.Ct.1898). Further, in John Hancock Mutual Life Ins. Co. v. Bennett, 159 S.W.2d 892 (Tex.Civ.App.1942, err. ref’d), it was held:

“The rule seems to be that the character of title is to be determined by the transaction in which it was acquired, that is, in the inception of title. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529 * * * ”

The points of error of Shell and the Campbell Group contending that the trial court incorrectly held that the south ½ of the Clayton Harper League was the community property of A. B. Hardin, Sr. and Maria Devers Hardin are each and all overruled.

Kirby and Gulf contend that the trial court erred in failing and refusing to hold that the deed of Abner McMurtry to John H. Kirby would pass after acquired title. Such deed is as follows:

“STATE OF TEXAS "I COUNTY OF HARRIS J
THAT I, Abner McMurtry of the County of Hill in the State aforesaid for and in consideration of the sum of Eight Hundred and Fifty Dollars ($850.-00) to me in hand paid by Jno. H. Kirby, have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Jno. H. Kirby of the County of Harris, in the State of Texas, all that certain piece or portion of land consisting of four hundred and twenty-five and %o (425%o) acres or more being an undivided part of a league of land granted to Clayton Harper, situated in the N.W. part of Liberty County, Texas, said 425¾0 or more being made up of the following interests in the Estate of A. B. Hardin, to-wit:
My own interest as an heir of my mother, Sarah H. McMurtry; Nee Hardin; Also, the interest of my brother, Augustus McMurtry, conveyed to me by him by deed dated December 11th, 1893. Also the interest of W. B. Green, conveyed to me by deed dated the 6th day of March, 1894. Also the interest of Quitman Van Deventer conveyed to me by Deed dated the_day of-, 1893, and recorded in Vol. L, page 504, of the Deed Records of Liberty County, Texas.
TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Jno. H. Kirby, his heirs and assigns forever, and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend, all and singular the said premises unto the said Jno. H. Kirby, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
WITNESS my hand at Houston, Texas, this 14th day of March, A.D. 1894.
Abner McMurtry”

At the time if the execution of this deed by Abner McMurtry, he owned an undivided interest of 290.26 acres only. Thereafter, in 1904 Abner McMurtry acquired 1.45 acres by reason of the death of Percy Mc-Murtry. The deed of 1894 from Abner McMurtry to John H. Kirby was a conveyance of at least 425.9 acres with a general warranty clause and no contractual provision limiting the granting to Kirby of 425.9 acres. This conveyance of an undivided 425.9 acres controls any subsequent recitations in this deed which might restrict the granting clause to a conveyance of Abner McMurtry’s ownership at the time he ex-executed the deed. Since this deed conveyed at least 425.9 acres of land, when Abner McMurtry acquired 1.45 acres upon the death of Percy McMurtry, this after acquired undivided 1.45 acres passed to John H. Kirby. To construe this deed as only conveying the interest Abner McMurtry owned as an heir of his mother, etc., would make it a quit claim deed, would void the conveyance of an undivided 425.9 acres and make the habendum clause and warranty of such premises a nullity. As held in Nichols v. Schmittou, 107 Tex. 54, 174 S.W. 283 (1915) this deed conveyed the land itself — that is, an undivided 425.9 acres. In so construing the deed from McMurtry to Kirby, the following is applicable:

“It is well settled that if there be an irreconcilable conflict between the granting, habendum and warranty clauses on the one side, and the premises or recitals on the other, the premises or recitals must yield to the other portions.” Germany v. Turner, 132 Tex. 491, 123 S.W.2d 874 (Comm.App.1939, opin. adopted by Supreme Court) and cases cited therein.

The rule of after acquired title prohibits the assertion of a title in contradiction of the warranty. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959); Benge v. Scharbauer, Tex.Civ.App., 254 S.W.2d 236, affirmed 152 Tex. 447, 259 S.W.2d 166, 168 (1953); Gould v. West, 32 Tex. 338, 339 (1869); Seydler v. Herder, 361 S.W.2d 411, 414, wr. ref’d n. r. e. (Tex.Civ.App.1962); Burns v. Goodrich, Tex.Civ.App., 392 S.W.2d 689; White v. Dupree, 91 Tex. 66, 40 S.W. 962 (1897); Richardson v. Levi, 67 Tex. 359, 3 S.W. 444 (1887); Rettig v. West End Realty Co., 254 S.W. 765, 768 (Comm.App., adopted by Supreme Court); Greer v. Willis, 81 S.W. 1185, 1186 & 1187 (Tex.Civ.App.1904, wr. ref’d).

Kirby and Gulf’s point of error with reference to this deed is sustained.

On November 28, 1873, a power of attorney and deed was executed and delivered by Sanders A. Hardin, Swan Hardin, Jerusha Hardin Green and husband, Stephen Green, Cornelia Hardin McNeil and husband, C. D. McNeil, and Abner Mc-Murtry as guardian of Liscum McMurtry, Abner McMurtry, Jr., Augustus McMurtry, Caroline V. McMurtry, and Sarah (Sallie) McMurtry, the surviving minor children of Sarah Hardin McMurtry, (hereinafter called McMurtry Minors), as grantors, to Geo. W. Davis and William F. Hardin, as grantees. Sarah Hardin McMurtry was one of the five children born of the marriage of A. B. Hardin, Sr. to Maria Devers. Said power of attorney and deed was filed for record on September 25, 1880, was recorded in Volume E at page 421 of the Deed Records of Liberty County, Texas, and it read as follows:

“THE STATE OF TEXAS J COUNTY OF LIBERTY J
Whereas, Augustine B. Hardin, late of the County and State aforesaid, who departed this life on the 22nd day of July, A.D. 1871, did in his lifetime enter into an agreement in writing which is now understood to be on file in the General Land Office of the State of Texas with the owner or owners of the headright Certificate of Clayton Harper for one league or one league and labor of land, by the terms of which agreement the said Hardin was to have said Certificate located and procure a patent for the land so located from the State of Texas:—
And in consideration of his services in locating said Certificate and procuring patent, the owner or owners thereof agreed to convey to said Hardin the one-half of the land so located and patented.
And, Whereas, the said Hardin in pursuance of said agreement located said Certificate on vacant land lying in the County of Liberty on the East bank of the East San Jacinto River, and had the same surveyed and the field notes returned to the General Land Office of the State of Texas. Said Survey being bounded as follows:
On the North by surveys made for J. Coronado and James McCoy,
On the East by said McCoy’s survey and a survey made for Burton Tarkington,
On the South by a survey made for Thomas Deorns and on the West by East San Jacinto River.
And, Whereas, the said Hardin had not at the time of his death attained a patent for said land, and it being necessary for the undersigned as surviving heirs of the said Hardin to procure the assistance of an Attorney in order to obtain said patent and carry out the terms of said agreement. M
Therefore, Know all men by these presents, that we, Sanders W. Hardin and Jerusha Green, joined by her husband, Stephen Green and Cornelia McNeil joined by her husband Charles D. McNeil, and Swan Hardin and Liscum, Abner, Jr., Augustine, Cornelia V. and Sallie McMurtry surviving children and heirs of Sarah, McMurtry, deceased, all of the County of Liberty in said State, surviving children and heirs at law of the said Augustine B. Hardin have made, constituted and appointed and by these presents do make, constitute and appoint Geo. W. Davis and Wm. F. Hardin of said Liberty County, Attorneys at Law doing business under the firm name and style of Davis & Hardin, our true and lawful attorneys, both at law and in fact for us and in our names, places and stead, to apply for and obtain from the State of Texas, a patent for said land; And if from any cause it should not be possible to secure a patent for said land by virtue of the location made by said Hardin, then our said Attorneys are hereby authorized and empowered to do and perform every act or thing necessary to secure to us our interests under and by virtue of said agreement between Augustine B. Hardin and the owner or owners of said Harper Certificate, giving and granting unto our said Attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as we might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that our said Attorneys or their Substitutes shall lawfully do or cause to be done by virtue hereof.
And in consideration of the undertaking of said Attorneys in the premises and services to be performed by them hereunder, this power is hereby declared to be irrevocable.
And in further consideration of said undertaking and services we have bargained and sold and do by these presents convey to the said Geo. W. Davis and Wm. F. Hardin, the one-half of our entire interest legal or equitable of in and to the land located as aforesaid, or to be located and patented by virtue of said Certificate as also of our right, title and interest in said Certificate by virtue of said agreement.
TO HAVE AND TO HOLD the same unto them, their heirs and assigns against us and each of us our heirs and assigns in fee simple forever.
In Testimony whereof, we hereunto set our hands and scrolls for seals on this the 28th day of November, A.D. 1873.
S. A. Hardin (SEAL)
Swan Hardin (SEAL)
Stephen Green (SEAL)
Jerusha Green (SEAL)
Liscum McMurtry (SEAL)
Abner McMurtry, Jr. (SEAL)
Augustine McMurtry (SEAL)
Caroline V. McMurtry (SEAL)
Sallie McMurtry (SEAL)
By C. A. McMurtry,
Guardian (SEAL)
Cornelia McNeil
Charles D. McNeil
“THE STATE OF TEXAS COUNTY OF LIBERTY J
Before me, George Ricks, Clerk of the District Court in and for the State and County aforesaid, on this 9th day of December 1873, personally appeared S. A. Hardin, Swan Hardin, Stephen Green and Jerusha Green, (wife of said Stephen Green), A. McMurtry as the Guardian of Liscum, Abner, Jr., Augustine, Cornelia V. and Sallie McMurtry, Cornelia McNeil and Charles D. McNeil, husband of said Cornelia McNeil, parties to the annexed power of attorney of date November the 28th, A.D. 1873. Who signed and severally acknowledged to me that they had signed, sealed and delivered the same to G. W. Davis and W. F. Hardin for the uses, purposes and considerations therein set forth and expressed as their act and deed. And the said Jerusha Green, wife of said Stephen Green, and Cornelia McNeil, wife of said Charles D. McNeil, having been by me examined privily and apart from their said husbands and having had the nature and character of said Power of Attorney fully explained to them, also declared to me that they had willingly signed, sealed and delivered the same as their own free and voluntary act and deed for the purposes and considerations therein expressed without any fear, compulsion or undue persuasion on the part of their said husbands and that they wished not to retract it.
In Witness whereof I have hereunto set my hand and seal of office at office in the Town of Liberty on this 9th day of December in the year A.D. 1873.
Geo. Ricks, Clerk Dist. Ct.
Liberty Co. Tex.
(SEAL) By Wm. Ricks, Deputy.”

Since these minors owned land in the Harper League, even though patent therefor had not issued, the trial court correctly held:

“Under the laws in effect in the State of Texas in the year 1873 probate jurisdiction was vested in the District Court and based upon the holding of the Supreme Court in Glassgow v. McKinnon, 79 Tex. 116 [14 S.W. 1050] (1890) such court had no power to authorize a guardian of the person or estate of minors to enter into or make a contract or agreement such as that evidenced by the contract, power of attorney and deed above identified * * * was void as to the McMurtry Minors and did not pass to or vest in Geo. W. Davis or Wm. F. Hardin any part of the right, title or interest of the McMurtry Minors in the Clayton Harper League.”

The points of error of the Davis Group, the Karsten Group, the Humphreys Group and Claud B. Hamil asserting that such power of attorney and deed dated November 28,1873, was valid as to the McMur-try Minors upon the execution and delivery thereof are each and all overruled.

The trial court with reference to said November 28, 1873, deed further held:

“ * * * Nevertheless, it is shown by the evidence that George W. Davis and William F. Hardin, acting under said Power of Attorney and Deed dated November 28, 1873, engaged in extensive correspondence with the Commissioner of the General Land Office, performed valuable and necessary services for the benefit of the heirs of A. B. Hardin and the heirs of Maria Devers Hardin, paid the patent fees and all other expenses incident to the issuance of the patent, caused the patent to the Clayton Harper League, Abstract 209, Liberty County, Texas, to issue to Clayton Harper, his heirs and assigns, received said patent and in all respects: (i) carried out and completed the obligations of A. B. Hardin under the said locative contract between William Hardin, Guardian of Margaret Harper, and A. B. Hardin, and (ii) fully performed all of the obligations of George W. Davis and William F. Hardin under said power of attorney and deed dated November 28, 1873.
“The said McMurtry Minors, after reaching majority and before March 14, 1894, knew of said power of attorney and deed dated November 28, 1873, accepted the benefits of the performance rendered thereunder by the said George W. Davis and William F. Hardin and accepted, confirmed, adopted, ratified and acquiesced in said power of attorney and deed dated November 28, 1873; accordingly the said McMurtry Minors and those holding under them, including the plaintiffs Gulf Oil Corporation and Kirby Lumber Corporation, are bound by said power of attorney and deed dated November 28, 1873, and further Gulf Oil Corporation and Kirby Lumber Corporation are estopped to deny that one-half of the rights, titles and interests of said McMurtry Minors in the said Clayton Harper Survey passed to and vested in the said George W. Davis and William F. Hardin under said power of attorney and deed dated November 28, 1873.”

None of the McMurtry Minors had attained majority when the patent was issued to the heirs of Harper. George W. Davis and William F. Hardin wrote letters and spent about forty dollars in causing patent to issue.

No question of innocent purchaser is involved in this case. The superior and paramount beneficial and full title of the undivided ownership of the McMurtry Minors in the Harper League was vested in them upon the death of A. B. Hardin in 1871. Their title was only further assured by the issuance of the patent in 1875. Batcheller v. Besancon, 19 Tex.Civ.App. 137, 47 S.W. 296, 297, wr. denied (1898); Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501, 503, 504 (1923); Abbott v. Gulf Production Company, 100 S.W.2d 722, 724, wr. dis’d (Tex.Civ.App.1937). Consequently, the title of the McMurtry Minors could not be defeated by a claim of stale demand, laches, non-claim or long delay in asserting title. Batcheller v. Besancon, supra; Carmichael v. Delta Drilling Co., 243 S.W.2d 458, 460, wr. ref’d (Tex.Civ.App.1951); Duren v. Houston & T. C. Ry. Co., 86 Tex. 287, 291, 24 S.W. 258, 259 (1893); also see Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 235, where the court said “silence or failure to assert title to land while it is being adversely claimed, conveyed, or occupied is not of itself sufficient to create an estoppel.”

This is not a case where a minor individually signed an instrument involving land which he could have disaffirmed after attaining majority. On the contrary, none of the McMurtry Minors signed the deed and power of attorney of 1873. To each of them, it was void. In the case of Abbott v. Gulf Production Co., supra, there was no issue as to whether the 1873 power of attorney and deed was effective to convey Yz of the interest of the McMurtry Minors to George W. Davis and William F. Hardin. There had been a parol partition of the Harper League with those claiming under A. B. Hardin, Sr. in possession of the south Yz of said League, and Abbott, et al in possession of the north Yz of said League. Abbott, et al sued in trespass to try title for the south Yz of the League as against those claiming under A. B. Hardin, Sr., taking nothing by their suit as against each and all of the defendants without determining the undivided interest of any of the defendants. Gulf and Kirby urge that the trial court’s finding that Abner McMurtry and those holding under him including Gulf and Kirby are estopped to question the 1873 power of attorney is completely without support in the evidence and must be disregarded. If such finding of fact by the trial court is not supported by the evidence then it has no effect. Houston Natural Gas Corp. v. Pearce, 311 S.W.2d 899, 903, wr. ref’d, n. r. e. (Tex.Civ.App.1958) and authorities there cited. In passing upon the question of estoppel, the chain of title of Gulf and Kirby from the McMur-try Minors will be examined to determine whether or not the McMurtry children subsequent to 1873 executed deeds and other instruments which would constitute an es-toppel or ratification of such 1873 power of attorney. The record contains the deeds into Abner McMurtry from the McMurtrys who were minors in 1873. The only reference in any such instrument to the 1873 power of attorney is the deed executed by Augustus McMurtry to Abner McMurtry on December 11, 1893, where the land is described as follows:

“ * * * The land hereby conveyed consists of an undivided one third of two hundred and twenty one and two fifth (221⅜) acres out of said Clayton Harper League and for a further description of the same reference is made to the deed records of said Liberty County Book E page 421 which description is hereby made a part of this deed.”

Such reference to the book and page where the 1873 instrument was recorded is limited to descriptive purposes. As held in Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153 (1952), this is in no way an adoption or election by the grantor to bind himself to the terms of the 1873 void instrument purporting to convey one-half of his interest to William F. Hardin and George W. Davis. If such grantor had intended to confirm or ratify the conveyance to the two lawyers, it would have been simple for him to have said so. Also see Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798, 800, 801 (S.Ct.1956). Knowledge on the part of Augustus McMurtry of the 1873 instrument by itself, whether admitted orally or in writing, cannot be the basis of es-toppel, or adoption or ratification of its terms on his part of those in privity to him.

The points of error of Kirby and Gulf complaining of the trial court’s declaration on the question above discussed are sustained.

The judgment of the trial court is affirmed in declaring: (1) The south ½ of the Clayton Harper League was the community property of A. B. Hardin, Sr. and his second wife, Maria Devers Hardin; and (2) The power of attorney and deed dated November 28, 1873, was void as to the Mc-Murtry Minors upon the execution and delivery thereof.

Judgment of the trial court as to its other holdings is reversed and here rendered that: (a) Under the deed dated March 14, 1894 from Abner McMurtry to John H. Kirby all title thereafter acquired by Abner Mc-Murtry passed to and vested in John H. Kirby and those claiming under him until the conveyance of an undivided 425.9 acres in the south ½ of the Clayton Harper League was satisfied; and (b) The Mc-Murtry Minors after reaching majority in no manner accepted, confirmed, adopted, ratified and acquiesced in the power of attorney and deed of November 28, 1873. The McMurtry Minors and those holding under them, including Gulf and Kirby, are not bound by such 1873 instrument and are not estopped to deny that ½ of the rights, titles or interests of the McMurtry Minors passed to and vested in George W. Davis and William F. Hardin. None of the interest or title of said McMurtry Minors passed by such instrument when executed or later to George W. Davis and William F. Hardin.

STEPHENSON, Justice

(dissenting).

I respectfully dissent only to that portion of the opinion holding the title, to the 1.45 acre tract acquired by Abner McMurtry after the deed dated March 14, 1894, vested in John H. Kirby.

The words “said 425¾0 acres or more being made up of the following interests in the Estate of A. B. Hardin, to-wit: * * * ” indicated an intention on the part of the grantor to convey the specific interest in the land owned by grantor at the time of the conveyance, which grantor had acquired from the persons listed. It is my understanding of the “after-acquired title” law that the grantor would be estopped to claim title to any part of the land acquired by him after the date of such conveyance from any of the listed sources. The 1.45 acres tract involved in this case did not come to the grantor from one of those sources. Clark v. Gauntt, (Comm.App.) 138 Tex. 558, 161 S.W.2d 270; Wilson v. Wilson, Tex.Civ.App., 118 S.W.2d 403; Spangler v. Spangler, Tex.Civ.App., 42 S.W.2d 826.


author: MURRAY, Chief Justice.

text:
    G. W. SIMS, Appellant, v. CITIZENS STATE BANK et al., Appellees.
    No. 14509.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1966.
    Harry P. Jarvis, James B. Turner, Jerome Pope, Houston, for appellant.
    Werner A. Gohmert, Alice, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by appellant, G. W. Sims, of Houston, Texas, in the 11th Judicial District Court of Harris County, against Citizens State Bank, Texas National Bank of Commerce, Alamo National Bank, First State Bank of Alice, and Werner A. Gohmert, an attorney of Alice, Texas, seeking to recover the sum of $11,-000, being the proceeds of a certain cashier’s check issued by Citizens State Bank of Houston, payable to one Robert Satterfield, and cashed or negotiated by Werner Gohmert at the First State Bank of Alice. The check was apparently endorsed by Robert Satterfield, which endorsement is alleged to be a forgery, and Werner Gohmert endorsed the check at the time of negotiating it. The check passed through the other banks named as defendants and was in turn endorsed by each bank.

Pleas of privilege were filed by Gohmert and First State Bank of Alice, to be sued in Jim Wells County, the County of their residences. These pleas of privilege were controverted and upon a hearing such pleas were sustained and the cause as to Gohmert and First State Bank of Alice was transferred to the District Court of Jim Wells County.

Gohmert and First State Bank of Alice filed motions for summary judgment in their favor, which motions were controverted by G. W. Sims. The trial court, after notice and hearing, sustained the motions for summary judgment and rendered judgment that G. W. Sims take nothing, from which judgment G. W. Sims has prosecuted this appeal. It is apparent that the trial court granted the motions for summary judgment upon the theory that G. W. Sims did not have a justiciable interest in the subject matter of this suit.

The summary judgment was based on the pleadings, the deposition of Werner Goh-mert, an affidavit of Ralph O. Queen, the evidence given by G. W. Sims and one Jack Brewer at the hearing on the pleas of privilege, and a sworn pleading filed by G. W. Sims in Cause No. 626,662, styled Doyle Davis, DBA Davis Motor Company vs. G. W. Sims et al., pending in the District Court of Harris County, Texas, 55th Judicial District.

It is apparent from this evidence that Jack Brewer was an automobile dealer in Houston and G. W. Sims was financing him on what is called a floor plan. Brewer would purchase automobiles, deliver the title papers in blank to Sims, and then Sims would furnish the money to pay for the automobiles. When Brewer would sell an automobile he would pay off the loan against that particular car, and then Sims would release the title papers so that the purchaser could be given title to the automobile. Sims either received interest or a fee for financing the automobile. Brewer was required to keep on hand a deposit of 10% with Sims to protect him against loss.

In this case four new automobiles were sold and delivered to Brewer by a man who was known by many aliases. The four cars were described sometimes as four Chevrolets, and sometimes as three Chevro-lets and one Oldsmobile. The title to each car consisted of a factory certificate to Robert Satterfield. It is not clear whether Robert Satterfield is a fictitious person, or only another alias of James Bennett, James Bennett Lester, or James McDonald.

On August 16, 1963, James McDonald delivered the four automobiles to Brewer, and Brewer sent him to Sims to get the money. Sims says McDonald wanted cash, but Sims refused to deal in cash and offered him a cashier’s check in the sum of $11,000, which McDonald accepted and left the manufacturer’s certificates with Sims. These certificates were in the name of Robert Satterfield, and the cashier’s check was made out payable to Robert Satterfield. Early next morning the cashier’s check was delivered to Werner Gohmert by James McDonald at Alice, Texas, with the name Rob-bert Satterfield signed on the back of the check. A handwriting expert said this endorsement was in the handwriting of James McDonald. Gohmert did not require James McDonald to endorse the check, but he himself endorsed it and took the check to the First State Bank of Alice and secured $2,000 in cash and two cashier’s checks, one in the sum of $5,000 payable to himself, and the other in the sum of $4,000 payable to one Lee Jones, Jr. The First State Bank of Alice sent the check through its corresponding banks and it was ultimately paid by the issuing bank in Houston. There is a great deal of testimony as to what was done with the proceeds of the cashier’s check but it is not relevant to the question of Sims’ justiciable interest in these proceeds.

The four automobiles proved to be stolen and the manufacturer’s certificates to be forgeries. The evidence shows that Sims loaned Brewer $11,000 on the four stolen automobiles. Brewer would be in a position to sue for the proceeds of the cashier’s check but not Sims. Sims does not show, by the allegations in his pleadings or by affidavits or otherwise, that he has a justiciable interest in the proceeds of the cashier’s check. Before Sims can maintain this suit he must show that he has a justi-ciable interest in the subject matter of the suit. In 44 Tex.Jur.2d § 7, p. 145, it is said:

“For a person to maintain an action in court, it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. The state is not exempt from this rule. The courts do not recognize a right of one person to bring suit for another person merely because he might derive some indirect benefit therefrom, and to permit the machinery of the courts to be set in motion by one who can in no event profit thereby is contrary to the policy of the state. Thus, as a general rule, only those persons may be parties to a suit who have a direct interest therein and for or against whom judgment may be rendered. In the absence of this interest, no person can recover in his own right by alleging a cause of action in another.”

Tarrant Wholesale Drug Co. v. Kendall, Tex.Civ.App., 223 S.W.2d 964.

Appellees filed sufficient documents to show that Sims did not have a justiciable interest in the subject matter of this suit and it then became the duty of appellant to show by affidavit, or in some way, that he did have a justicable interest, and having failed to do so he is not in a position to complain that a summary judgment was rendered against him. Rule 166-A, Texas Rules of Civil Procedure; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236. Appellant filed one affidavit tending to show that Robert Satterfield’s endorsement on the cashier’s check was a forgery, but this is immaterial as to Sims’ justiciable interest in this lawsuit as Sims had delivered the check to James McDonald at the request of Brewer.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    O. M. FRANKLIN SERUM COMPANY, Appellant, v. C. A. HOOVER & SON et al., Appellees.
    No. 7662.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1966.
    Rehearing Denied Jan. 3, 1967.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Lemon, Close & Atkinson, Perryton, for appellees.
   DENTON, Chief Justice.

This is a venue case. C. A. Hoover and his son, Dale were partners in a ranching operation in Ochiltree County. On October 14, 1964 Dale Hoover injected 25 registered bulls with a serum commonly referred to as “Franklin Pen-Strep” which was distributed by O. M. Franklin Serum Company, appellant. Almost immediately after Hoover had completed injecting the last calf, all 25 were reacting violently. Nine calves died shortly thereafter; two died within a few days and the remaining fourteen were adversely affected and recovered slowly. A Veterinarian who was called within a few minutes treated the animals without much success. Plaintiffs alleged the serum was not fit for its intended use and that this unfitness was the proximate cause of the death and injuries to the calves. No acts of negligence were alleged. Recovery is sought only on the theory of breach of warranty. Appellants’ plea of privilege was overruled.

By controverting affidavit, appellee sought to maintain venue in Ochiltree County under Subdivisions 3, 23 and 27 of Article 1995, Vernon’s Ann.Tex.Civ.St. Appellants’ first two points of error contend venue cannot be maintained under the provisions of Subdivision 3. Appellees’ brief makes no reply to these points. The defendant was a foreign corporation with a permit to do business in Texas, and for venue purposes is a resident of either Potter County, where it maintains a laboratory or in Travis County where it maintains an agent for service. There is no evidence appellant was a nonresident under Subdivision 3. The defendant corporation, authorized to do business in Texas, is considered a resident of the State insofar as venue is concerned. American Fidelity & Casualty Co. v. Windham (Tex.Civ.App.) 59 S.W.2d 259; Pepsi-Cola Co. v. Spangler (Tex.Civ.App.) 401 S.W.2d 923. Subdivision 3 of the venue statute is not available to appellee as an exception to the general venue privilege of the defendant.

Appellant further contends the trial court erred in overruling its plea under Subdivision 23 or 27 because of the failure of appellee to sustain its burden to prove either appellant had an agency or representative in Ochiltree County, or that a cause of action or a part thereof arose in that county. It is settled the law imposes the burden upon appellee to prove one of these elements. Amarillo Coca-Cola Bottling Co. v. Price (Tex.Civ.App.) 378 S.W.2d 409 and cases cited. First it will be determined whether or not the burden has been sustained relative to proof of the cause of action. Appellees’ cause of action is founded entirely on a claim of breach of warranty; that is, the allegation the product was not fit for its intended use. The question is therefore presented whether or not appellant, the distributor of the serum, is bound by an implied warranty respecting its fitness. This raises the question of whether privity is a prerequisite to recovery on the basis of breach of implied warranty of medicine or drugs for the intended use by animals. There are no Texas cases directly in point.

In Burrus Feed Mills, Inc. v. Reeder (Tex.Civ.App.) 391 S.W.2d 121 this court applied the doctrine of implied warranty in the absence of privity announced in Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 to food sold for consumption by animals and labeled for such purpose. The reasoning in that case was supported by an earlier Texas case involving animal food. International Milling Co. v. Jernigan (Tex.Civ.App) 191 S.W.2d 526. In Cudmore v. Richardson-Merrell, Inc. (Tex.Civ.App.) 398 S.W.2d 640 (Ref. N.R.E.), the court extended the rule of the Decker case to cases involving drugs intended for human consumption. However the court limited the application of the rule under the particular facts of that case. There the plaintiff belonged to a class of people who were allergic to the drug taken. Under those circumstances the court applied the rule of implied warranty despite lack of privity “only when such results or some similar results ought reasonably to have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances.” We see no logical reason why the doctrine of implied warranty in the absence of privity should not be extended to manufacturers or distributors of drugs intended for use by animals. We think the same grounds of public policy would be applicable. We hold such doctrine is applicable under the facts and circumstances of this case. It is therefore unnecessary to determine whether or not appellant had an agent or representative in Ochiltree County. However, in our opinion no such agency or representative was established. The plaintiff purchased the serum from a drug store in Ochiltree County. It was simply a retail outlet for appellant’s products. This does not constitute an agency or representative under the venue statutes.

Appellant further contends the directions found upon the label were disregarded. The only wording appellant cites in this regard are the words “For Veterinary Use Only”. Appellant interprets this to mean “For Veterinarian’s Use Only”. “Veterinary” and “veterinarian” are not synonymous. Webster’s International Dictionary defines “veterinary” as “pertaining to beasts of burden and draft”. Dale Hoover was a college graduate with a Bachelor’s degree in Animal Husbandry and a Master of Science degree in Animal Industry. He had vaccinated hundreds of calves before, and had used this same type serum many times prior to the occasion in question. There are no pleadings or evidence he improperly applied the serum. Appellant’s contention is without merit.

Appellant also contends there is no evidence with respect to the cause of death or sickness of the calves. Any element, including a proximate cause, of a cause of action may be established by circumstantial evidence. Bock v. Fellman Dry Goods Co. (Tex.Com.App.) 212 S.W. 635; Renshaw v. Countess (Tex.Civ.App.) 289 S.W.2d 621; Grossman v. Tiner (Tex.Civ.App.) 347 S.W.2d 627, (Ref. N.R.E.). At approximately 10:00 a. m. on October 14,1964 Dale Hoover injected 25 of 28 registered bulls in one pen with “Franklin Pen-Strep”. This took approximately thirty minutes. By the time he had finished injecting the 25 calves he “observed several head of the calves down and several additional calves were breathing heavily, abnormal in their movements, frothing at the mouth, various symptoms to indicate that they were reacting violently to something.” He further testified “every calf that had been injected with pen-strep reacted violently.” The other three calves which were injected with another drug had no reaction. A Veterinarian was called immediately and he arrived within ten minutes of the call. By the time he arrived five or six calves were dead and the remaining three or four, making a total of nine, died “very shortly”. Two others died “shortly after, within a few days”. All calves injected with the drug received a violent reaction within a matter of minutes; the others which received an injection of another type serum were not affected. If from all the circumstances and evidence it may reasonably be concluded that the death and illness of the calves resulted from the use of the serum, appellees have discharged their burden. It is a matter of probabilities in the light of all the evidence. We are of the opinion there was evidence to support the trial court’s implied findings that appellee did prove a cause of action for venue purposes, and that a part thereof arose in Ochiltree County. We conclude that the suit was maintainable in Ochiltree County under Subdivisions 23 and 27 of Article 1995.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Jessie Lee ALEXANDER, Appellant, v. Thelma Paldo ALEXANDER, Appellee.
    No. 14898.
    Court of Civil Appeals of Texas. Houston.
    Nov. 3, 1966.
    On Rehearing Dec. 8, 1966.

      Jim Brannon, Houston, Alvin M. Rosen-thal, Houston, of counsel, for appellant.
    Zorn, Girardeau & Lawlis, Joseph R. Zorn, Monte D. Lawlis, Baytown, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by Jessie Lee Alexander to recover the proceeds of two insurance policies, one in the sum of $6,000.00 issued in June, 1965 by American General Insurance Company, and the other in the sum of $600.00 issued in April, 1965 by Washington National Insurance Company. In both policies Robert Alexander, who died on August 23, 1965, was the insured and Thelma Paldo Alexander was designated as beneficiary. The insurance companies impleaded Thelma Paldo Alexander who sought to recover the proceeds of said policies as the named and designated beneficiary therein. The insurance companies paid into the registry of the District Court the proceeds of their respective policies, and are no longer involved in the suit. Upon motion of Thelma Paldo Alexander, the court rendered summary judgment in her favor, from which Jessie Lee Alexander appeals.

In her unsworn amended petition appellant asserts that she entered into a ceremonial marriage with the deceased, Robert Alexander, on December 28, 1955, and that such marriage had never been dissolved. It was appellee’s contention that she had lived with the said Robert Alexander for many years prior to his death, and that she was entitled to the proceeds of said policies as his common law wife or putative wife. Appellee also pled that she was entitled to the proceeds of said policies because she was named and designated as the beneficiary in both policies which were taken out during the same year that the said Robert Alexander died.

In her affidavit, which is in proper form, in support of her motion for summary judgment, appellee stated that she had lived with deceased either as his common law wife or as his putative wife for approximately eight years. She also described the policies in question, and showed that she was the designated beneficiary in both policies.

The law is well settled that the summary judgment granted by the trial court must be upheld if it can be supported on either of the grounds relied upon by appel-lee for recovery. Bishop v. Bishop, Tex.Sup.1962, 359 S.W.2d 869. It is our view that the summary judgment was properly granted by the trial court since appellee in her pleading and affidavit and motion for summary judgment established that there was no fact issue with respect to her being the named and designated beneficiary in both policies. Appellant does not deny such fact. Under Article 3.49-1, Section 1, of the Insurance Code of Texas, V.A.T.S., it is provided in substance that any person of legal age may apply for insurance on his life in any legal reserve or mutual assessment life insurance company and in such application designate in writing any person as a beneficiary of any policy or policies issued in connection with such application and that with respect to any such policy or policies any such beneficiary so designated shall at all times thereafter have an insurable interest in the life of such person.

Appellee by her affidavit made out a case for summary judgment in her favor and hence was entitled to the proceeds of the policies in the absence of a showing by appellant that the action of the husband was fraudulent toward his wife. Volunteer State Life Ins. Co. v. Hardin, 1946, 145 Tex. 245, 197 S.W.2d 105. In the instant case appellant’s amended pleading upon which hearing was had and her answer to appel-lee’s motion for summary judgment were unsworn, and appellant filed no affidavit of any kind nor did she introduce any evidence of any kind to raise any fact issue. In Kuper v. Schmidt, 1960, 161 Tex. 189, 338 S.W.2d 948, the Court said:

“When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. See Gulf, Colorado & Santa Fe Railway Co. v. McBride [159 Tex. 442], 322 S.W.2d 492.”

See also Smith v. Campbell, Tex.Civ.App. 1962, 361 S.W.2d 462.

Judgment affirmed.

On Motion for Rehearing

Since handing down the foregoing opinion, we have found by our own research the case of Brown v. Lee, Tex.Sup. 1963, 371 S.W.2d 694, which was not cited by either party in this suit, and which indicates that the legal theory of title to insurance proceeds as expressed in Volunteer State Life Ins. Co. v. Hardin, 1946, 145 Tex.245, 197 S.W.2d 105, 168 A.L.R. 337, and Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, has been altered by virtue of the amendment in 1957 to Article 23(1), Vernon’s Annoted Texas Statutes, enlarging the statutory definition of “property” so-that it now includes “insurance policies and the effects thereof”. In Brown v. Lee, the-Supreme Court holds that where the policy is purchased with community funds such property is in the nature of a chose in action which matures at the death of the insured, and that the proceeds at maturity of the policy are community in character, except where the named beneficiary is in fact, surviving, in which case a gift of the policy rights to such beneficiary is presumed to-have been intended and completed by the death of the insured.

Appellant alleged in her amended pleading that the giving of the proceeds of said policies to appellee would result in a fraud upon appellant and that the naming of appellee as beneficiary in such policies was a legal fraud upon appellant. Appellant also pleaded that the estate of Robert Alexander, Deceased, is insolvent, and that appellant is wholly without funds. In the absence of any exception to such pleading, it is our view that appellant’s pleading is sufficient to raise a genuine issue of material fact as to whether the gift to appellee was fraudulent as to appellant. Appellee’s affidavit is insufficient to establish that she was in fact the putative wife of the deceased. There is nothing to show that the policies were purchased other than with community funds.

Rehearing granted. Reversed and remanded.