author: WABKER, J.

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. JUDICE.
    No. 2093.
    Court of Civil Appeals of Texas. Beaumont.
    June 26, 1931.
    Rehearing Denied July 7, 1931.

      Barnes & Barnes, of Beaumont, for appellant.
    Howth, Adams & Hart, of Beaumont, for appellee.
   WABKER, J.

This suit ■ was filed in district court of Jefferson county by appellee against appellant, as an appeal from an adverse award of the Industrial Accident Board. Gulf Refining Company was the employer, appellant the insurer, and appellee the employee. He plead facts raising the issue of total' permanent disability. Answering special issues, the jury found that appellee suffered a com-pensable total disability, and judgment was accordingly entered in his favor. Against this judgment, appellant has assigned the following reversible errors:

First. The judgment is without support in the evidence. In this connection appellant’s motion for certiorari is granted, and the record completed by incorporating therein the motion for an instructed verdict. The following is all the testimony on the issue of total permanent disability:

“As to trying to work since I was hurt, I have tried to work in the garden; that’s the only work I have done. The efforts that I have to exert in working produce pain. It produces bad pain; I am not able to do anything, am hurting all the time.”
“I have had headaches since I was hurt. I had them some before. I wouldn’t think they were any worse after I was hurt.”

There are no circumstances in the record from which a jury could reasonably deduce that the “hurting” testified to by him would continue permanently, nor that his “headaches” would continue permanently, nor are there any circumstances in the record in any way strengthening the quotation just made from his testimony, detailing the extent of his disability. As we gather from the record, ap-pellee was trying to establish a hernia, and was trying to raise the issue that the “hurting” and “headaches” -testified to by him resulted from this hernia. The evidence may be sufficient to sustain the answer to issue No. 7 to the effect that the plaintiff suffered a “total incapacity to work and earn money,” but, in our judgment, it is wholly Insufficient to sustain the jury’s affirmative answer to question No. 8, reading: “Do you find, from a preponderance of the evidence, that such total incapacity to work and earn money, if any, is permanent?”

Second. The evidence was insufficient to raise the issue of average weekly wage. Appellee testified that he had been working for the Gulf Refining Company six months prior to his injury, and to the amount of his weekly wage. He testified that he did not know the wages paid other men engaged in the same class of work in which he was engaged. Clearly, this testimony was insufficient to prove his average weekly wage under subdivision 1 of section 1 of article 8309, Revised Statutes 1925. It is apparent on the face of his testimony that he could have proved his average weekly wage under subdivision ’2, but did not do so. Therefore, under the adjudicated cases (American Employers’ Ins. Co. v. Singleton [Tex. Com. App.] 24 S.W.(2d) 26; Employers’ Liability Assurance Corp. v. Butler [Tex. Civ. App.] 20 S.W.(2d) 209), appellee could not resort to subdivision 3 of section 1 of article 8309, to establish this issue. This case falls squarely within Texas Employers’ Ins. Ass’n v. Varner, 20 S.W.(2d) 334, 336, where Mr. Justice O’Quinn, speaking for this court, said: “There is nothing in the evidence to show or suggest that the sawmill operated by Jones was only a temporary affair, but, to the contrary, we take it sawmilling is generally known to be of a permanent nature, or at least to continue for a considerable time. We think that proof of what other employees of the same class as appellee, working at the same or similar work at Jones’ sawmill, or in the neighborhood, could have been made. * * * That being true, resort to subsection 3 could not be had, and it was error for the court to find appellee’s average weekly wages on the proof only of appellee’s daily wages.”

In view of the fact that the judgment of the lower court must be reversed for the two errors just discussed, we shall not determine the legal effect of the testimony on the issue of hernia, and pretermit a discussion of appellant’s proposition that the evidence, construed most favorably to appellee, was insufficient to raise that issue. Appellant also complains of certain questions as being leading. The form of these questions was subject to this objection, but, as the ease is to be tried again, and as the record may come back in a different condition, we pretermit a discussion of these assignments.

Appellee testified that he received his injury on the Sth of September. Appellant objected to the court’s charge on the ground that it inquired of the jury whether appellee “sustained an injury on or about the 18th of September, 1929.” This exception was properly overruled by the trial court. There is no suggestion that appellee, suffered more than one injury. Clearly, the injury he testified about was the' one submitted by the court in the charge. The fact of the injury was the controlling issue.

Appellant complains that the court erred in overruling its motion to require the plaintiff to submit to surgical treatment for the purpose of reducing the hernia. However, that motion was made only “in the event liability for compensation should be found upon the trial of this case to exist against this defendant.” As the judgment of the lower court must be reversed, thereby relieving appellant from the effect of the jury’s findings, this motion, as written, automatically passes out of the case.

Reversed and remanded.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    BARBER LUMBER &, MFG. CO. v. REEVES.
    No. 2092.
    Court of Civil Appeals of Texas. Beaumont.
    June 28, 1931.
    Rehearing Denied July 1, 1931.
    Ewill Strong, Jr., and Orgain, Carroll & Bell, all of Beaumont, for appellant.
    D. E. O’Fiel, of Beaumont, and James P. Parker, of Kountze, for appellee.
   WALKER, J.

This was a suit by appellee against appellant for damages for breach of a timber-cutting contract. Appellee pleaded his contract, describing the timber to be cut, giving his rate of compensation and the cost to him of cutting, hauling and loading the timber on ears. Under his pleading it was contemplated that he would cut and load on cars 250,000 feet of hardwood timber and that appellant breached the contract after 125,000 feet had been cut and delivered. Under his pleadings' he was to receive $12 per thousand for cutting and loading the-timber on ears, at a cost to him of $6.50 per thousand, leaving him a net profit of $5.50 per thousand. He pleaded that the contract was oral and the work was to begin “at once” with reference to the date of the contract, and “to continue without cessation until the entire tract of hardwood timber, as aforesaid, was cut, removed, hauled and loaded upon the ears.” The breach of the contract was specially pleaded as follows: “On or about the 1st day of May, 1929, the said defendant caused the plaintiff to temporarily stop operations under said contract and assured plaintiff that same would be resumed in a few days and that the plaintiff at the instance and request of defendant held his outfit together until on or about the 8th day of July, A. D., 1929, and some few days after July 8th the defendant, being and becoming liable for the expenses incurred, by reason of holding the outfit together as aforesaid and thereafter the defendant refused plaintiff permission to continue the cutting without any just or reasonable cause therefor and thereafter informed this plaintiff that the defendant would not pay for any more logs loaded on the cars at Frecenious, Texas, under the terms of the oral contract aforesaid.”

Among other defenses, appellant answered by general denial. The trial was to the court without a jury, with judgment in appellee’s favor for the loss of profits on hauling and delivering 125,000 feet of timber at $5.50 per thousand. In support of the judgment the trial court filed conclusions of fact and law sustaining all the allegations of the petition, that is, that the oral contract was made at the time appellee alleged; that under its terms appellee was to cut and load on cars 250,000 feet of hardwood timber at $12 per thousand; that he cut and delivered 125,000 feet, for which he was paid; that appellant breached the contract after appellee had delivered the 125,000 feet, thereby depriving appellee of the right to deliver the •remaining 125,000 feet; that his profit on the work would have been $5.50 per thousand, making his damages $687.50, for which judgment was entered. In support of his conclusions that appellant breached the contract, the trial court found the following facts:

“8. On or about Jqly 10th, 1929, the defendant notified plaintiff that the defendant would not pay for any more logs from said timber that plaintiff might load on the cars at Frecenious, Texas, and forbade plaintiff to do anything further under their contract.”
“11. The terms of the contract entered into by the parties on February 23, 1929, described in paragraph 1 of the foregoing Findings of fact were valid and binding. The defendant wrongfully prevented the plaintiff from completing the work he agreed to perform under said contract, said act on the part of defendant being of date July 10th, ⅜929, breaching the contract.”

Against these two conclusions of fact appellant advances the assignment that they are wholly without support in the evidence. The following is all the testimony on the issue of breach of the contract:

Appellee testified:

“And when we got through cutting the magnolia he told me not to cut any more, that he would have to be around a little bit before he could handle this oak.- And so I waited out there probably a month and a half, I reckon, expecting every few days to start to work, next week hauling, and next week never did come.
“ * * * ^n(j probably about six weeks after that I wrote him a letter, and I received no answer; and probably a month later I wrote him and asked him if he would answer that letter. I do not remember the dates of those letters. He did not answer that one and told me that he could not handle it at all then.
“ * ⅜ * I do not remember just how long it was from the time I first stopped work at the instance of Mr. Barber until he told me he could not use any more oak at all, but it was when we got through cutting the magnolia : probably fifty days, maybe a little more. I judge that I kept my teams there idle about six weeks. I figured on starting the next week all the time.
“ * * * I got a reply to that letter. I did not get a reply to the first one. I got a reply to the second letter. The reply to the second letter was in the form of a letter. I do not have that letter in my possession. I made a search for it. It was a very short letter. I do not know where it is. I could not find it. I have tried to find it.
“ * ⅜ * He (appellant) said in that letter that he could not handle the timber at all now; that he would let me handle it as soon as he could use it; that he could not use it at all then. I then moved away from there pretty soon.”
R. S. Barber, on direct examination, testified : “I never did fell Mr. Reeves to cut any more than the magnolia. I told him not to cut any more until I gave him the orders.”
On this issue appellee says, in his brief: “The evidence upon the question did not state in words that the appellant forbade the ap-pellee from doing anything further under the contract, or that he would not pay for any more logs, but the testimony was that the appellant notified the appellee that he could not handle the logs and to cease operations, which was equivalent to saying that he was not going to pay for the logs even though the exact words were not used.”

The quoted testimony was sufficient to raise the issue that appellant refused ap-pellee permission “to continue, without cessation,” the work to completion, and under all the facts the issue was raised that this act on the part of appellant constituted a breach of the contract. But that was not the issue pleaded by appellee. His pleading was that appellant breached the contract by “refusing .plaintiff permission to continue the cutting without any just or reasonáble cause therefor, and thereafter informed this plaintiff that the defendant would not pay for any more logs loaded on cars.” By the eighth and eleventh conclusions of fact the allegation of the petition just quoted was fully sustained. But the proof is directly against this allegation and against the eighth and eleventh conclusions of fact. Thus Mr. Barber testified that he told the plaintiff “not to cut any more until he gave him the orders.” Appellee testified that appellant wrote him that he “would let me handle it as soon as he could use it; that he could not use it at all then.” From this testimony it is clear that appellant did not notify appellee that he “would not pay for any more logs” and did not forbid “plaintiff to do anything further under their contract.” The full import of the testimony was merely that appellant refused appellee the right to “continue without cessation” the work to completion. It follows that the eighth and eleventh conclusions of fact are without support in the evidence. Having specially pleaded the manner of the breach of the contract, appellee is confined to the issues made by his pleadings, and we cannot affirm the judgment upon a theory of breach of the contract not raised by the pleadings.

Appellant has an additional proposition that tlie evidence is insufficient to sustain the finding that appellee would have made a profit of $5.50 per thousand on hauling and loading this timber. Because of the reversal of the judgment of the lower court on the grounds just discussed, we pretermit a discussing of this assignment. Upon another trial the point made by appellant against the judgment on this ground may be obviated.

Reversed and remanded.


author: JACKSON, J.

text:
    DENNY et al. v. WHITE HOUSE LUMBER CO. et al.

    No. 3461.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.
    Will Crow, of Canadian, for appellants.
    Hoover, Hoover & Cussen, of Canadian, for appellees.

      Writ of error granted.

   JACKSON, J.

The plaintiffs, the White House Lumber Company, the Gibson Supply Company, both of which are corporations, and H. E. Hoover, instituted this suit in the district court of Ochiltree county, Tex.,, against the defendants Chas. Denny, Jr., and J. W. Denny, to recover certain personal property.

The plaintiffs alleged that about September 6, 1927, they were the owners and in possession of certain personal property, which they describe as one complete standard drilling rig, 250 feet of 5½" casing, 640 feet of 12½" casing, 3 joints of 12½" casing, 4 joints of 10'' casing, one steel tank, one wood tank, 2,060 feet of 10" casing, one six h. p. pumping engine, 2,500 feet of 2" pipe, 600 feet of one-inch pipe, and galvanized boiler housing. They itemize the value' of each article, the aggregate of which is the sum of $11,850. The location of the property is alleged to be on section 471, block 43, H. & T. C. Ry. Co. land in Ochiltree county, Tex.

That on or about September 6, 1927, the defendants, without the consent of the plaintiffs or either of them, wrongfully took possession of said property and converted it to their own use and-removed .a portion of it from its location in Ochiltree county. That though requested, the defendants have refused to deliver the property to the plaintiffs and unlawfully retain the same-to plaintiffs’ damage in the sum of $11,850.

The defendants answered by general demurrer, a plea of not guilty, and a general denial. They also alleged by wav’ of special answer that they are the owners of the property and entitled to the possession thereof. That on July 3, 1926, they entered into a drilling contract with S. R. McCorkle, doing business as the McCorkle Pipe Line Company, by the terms of which the defendants were employed to drill a test well for oil and gas on said section 471. They sufficiently alleged the effect of the terms and provisions of the contract, a copy of which they attached to and made a part of their answer, ‘and that such contract was duly recorded in Ochiltree county, Tex., on November 2, 1926.

That on November 22, 1926, they filed and had duly recorded in the county clerk’s office of Ochiltree county, Tex., an itemized account of their claim, supported by affidavit showing that S. R. McCorkle was indebted to them for labor in the drilling of said test well in the sum of $8,760 and that all just and lawful offsets, payments, and credits on said indebtedness had been allowed.

That on the 11th day of October, 1927, the defendants filed suit in the district court of Ochiltree county, Tex., against S. R. McCor-kle, et al., in which suit they recovered a judgment against the said McCorkle for their debt and a foreclosure of their contractor’s and laborer’s lien on the property in controversy against tbe said McCorkle. That an order of sale was issued, and on January 3, 1928, the property in controversy, after due advertisement, was sold by the sheriff ,to satisfy said judgment and purchased by the defendants for the sum of $400 and conveyed to them by a bill of sale, duly executed by the sheriff of Ochiltree county. That by reason of said contract and the fixing of their lien by filing their itemized account for labor, supported by proper affidavit, and the judgment, the foreclosure of their lien, the sale by the sheriff and purchase at such sale, these defendants are the owners of and entitled to the possession of said property and have a superior right over any claim or interest of the plaintiffs therein.

They pleaded in the alternative that if it be determined that they are not the owners and entitled to the possession of the property involved in the controversy, that they have a judgment lien securing their indebtedness which is superior to any claim of plaintiffs and that such lien be foreclosed on the property against the plaintiffs; that the property be sold under execution to satisfy their indebtedness, etc.

The defendants also se,t up a cross-action against the plaintiffs, alleging that the sequestration obtained by the plaintiffs was wrongfully issued, and sued out without probable cause or justification by reason of which they have suffered actual damages which they set out in detail.

On September 5, 1929, the plaintiffs replied to the defendants’ answer by supplemental petition consisting of general demurrer, numerous special exceptions, and a general denial.

In compliance with the peremptory instruction of the court, the jury found for the plaintiffs for the 2,060 feet of 10-inch casing. In response to special issues submitted by the court relative to the ownership of the other property in controversy, the jury found, in effect, that the plaintiffs were the owners thereof on September 26, 1927, and retained title thereto when such property was furnished and delivered by them to S. R. McCorkle.

On these findings the court rendered judgment that plaintiffs have and recover from the defendants the title to the property involved in the controversy and that the sheriff of the county, who was in possession thereof by virtue of the writ of sequestration which the plaintiffs had caused to be issued and levied, deliver possession of the property to the plaintiffs, from which judgment the defendants prosecute this appeal. ■

The appellants, by numerous assignments, present as error the action of the trial court in refusing to direct a verdict for them, in submitting any issue of fact to the jury, in peremptorily instructing the jury to return a verdict in favor of plaintiffs for the 2,060 feet of 10-inch easing, and in rendering judgment for the plaintiffs for the title and possession of the property on the findings of the jury; all of which assignments are based on the contention that the testimony is insufficient to support the verdict of the jury or to warrant the action of the court.

The record discloses that on July 3, 1926, the appellants entered into a written contract with S. R. McCorkle, by the terms of which they agreed to drill on said section 471 a test well in search of oil and gas, to a depth of 3,500 feet, unless oil or gas was found in paying quantities at a lesser depth, for a consideration of $5.50 per foot for the number of feet drilled; that 50 per cent, of the contract price earned was to be paid at the completion of each 500 feet and the remainder at the completion. of the well. The contract contains numerous other provisions which we deem unnecessary to set out. This contract was filed for record on November 2,1926.

On November 22, 1926, the appellants made and filed with the county clerk of Ochiltree county, Tex., an affidavit attempting to fix their laborer’s lien on the property involved in this controversy, in which they state: “That the annexed account is a true and correct account of labor performed by them for S. R. McCorkle, sometimes doing business as McCorkle Pipe Line Co., of Hemphill County, Texas, and that the prices thereof are just and reasonable as set forth in said account; that save and except the credits indicated on said account, said account is past due and unpaid ; that said labor was performed for the said S. R. McCorkle at the times in said account mentioned, under and by virtue of a contract between affiants and the said S. R. McCorkle; that due notice was given by af-fiants of labor performed as aforesaid, in accordance with law.”

The affidavit then sets out that affiants were informed at the time of entering into the contract that S. R. McCorkle was the owner of certain leases on said section 471 and numerous other sections, which they describe, and continues: “That said labor was furnished and performed from July 8, 1926, up to and including the date hereof on a certain oil well located in the central part of Section No. 471.” And that affiants are claiming a lien upon the leasehold interest of the said McCorkle in the lands described and on the personal property involved in this controversy, the description of which is given in the affidavit.

That the appellants filed suit in the district court of Ochiltree county, Tex., against S. R. McCorkle and the plaintiffs in this suit. That on November 3,1927, they dismissed the plaintiffs from said suit and obtained judgment by default against S. R. McCorkle for the sum of $8,760 and a foreclosure of their lien on tlie personal property described in this suit against S. R. McCorkle.

That on October 27, 1026, S. R. McCorkle sold and delivered to the plaintiffs all of the personal property involved in this controversy, except the 2,060 feet of 10-inch casing. That such sale is evidenced by a bill of sale of the same date. That by a written instrument, the date of which is not given, S. R. McCorkle acknowledges that he obtained, on August 26,1926, from the Gibson Supply Company, one of the plaintiffs, the 2,060 feet of 10-inch casing and moved the same on to said section 471; that he had never paid therefor and never obtained title thereto and that said casing is and at all times had been the property of the Gibson Supply Company.

The affidavit filed by the appellants with the county clerk of Ochiltree county, Tex., for the purpose of fixing a laborer’s lien, refers to “the annexed account,” which the affidavit states is a true and correct account of the labor performed by them for McCorkle, that the prices therefor are just and reasonable, as shown by the account, that the account shows the credits it is entitled to, and that said account is due and unpaid and that the labor was performed at the times mentioned in said account. The affidavit also states: “That said labor was furnished and performed from July 8, 1926, up to and including the date hereof.” The record fails to disclose that “the annexed account” was ever made or filed with the county clerk or introduced in evidence on the trial of this case. The appellants failed to state in the affidavit the depth the well had been drilled by them. In fact, it does not state that the well had been drilled to any depth. It does not disclose what sums had been paid them for work, nor with any certainty the specific time at which the work was done, nor the amount due them, nor when due.

The contract between appellants and S. R. McCorkle for the drilling of the well did ■not retain any lien on any property, and in .order to fix the statutory lien, it was incumbent upon the appellants to comply with the statutes governing the fixing' of liens. Mulloy et al. v. Humble Oil & Refining Co. (Tex. Civ. App.) 250 S. W. 792. This holding is approved by the Supreme Court in the case of Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063, 1064.

The appellants having failed to prepare and file “the annexed account” referred-to in their affidavit, they failed to show the facts required by the statute which are necessary in order to establish a lien. .

In construing the itemized and verified accounts relied on to fix a lien in the ease of Ball v. Davis, supra, the Supreme Court, through Chief Justice Cureton, says:

“These accounts are clearly too indefinite to constitute compliance with the statute. The Morgan account, last quoted, covers 78 days’ work over a period of 157 days, spread through or embraced in 6 different months; but no one can tell, either from the account or the affidavit which accompanies it, on what days the work was actually done, or any other fact or detail which would be -of assistance in ascertaining the correctness of the account, or when any particular item thereof was due. The Davis account is equally as indefinite. In the first place, it begins with: ‘To balance owing on August 27, 1926,’ of $207. . Neither the affidavit nor the account shows when the work was performed for which this balance was due, nor do they ‘show when it became due. The remaining portion of the account purports to cover 170 (8) days’ labor during 8 different months, embracing a period of 207 days; but there is nothing to indicate on what days the labor was performed, nor when any particular item of the account accrued or became due.
“The statute (article 5453) requires the account to be itemized. The term used means that the account must be set out by items. People v. Lowden, 285 Ill. 618, 121 N. E. 188. The sufficiency of the itemization must be determined, in view of the objects and purposes of the statute. The evident purpose of the statute here involved is to provide the owner of the property with such particulars as will enable him to ascertain whether or not the account is correct, and show the facts necessary to the establishment of a lien, not only for the benefit of the owner, but of third parties as well, who may be or might become interested or affected thereby. To accomplish these purposes the account must show the facts required by the statute to establish the lien. Unless the affidavit and account are -sufficiently definite to show that labor has been performed, that a sum certain is due therefor, and the date when due, it is insufficient to accomplish the purpose of the statute to show and fix a lien. ,
“The general rule is that mechanic’s lien statutes imposing involuntary liens upon the. property of another must be complied with, at least in such a substantial manner as to convey notice to the debtor and third parties who might be interested or affected. 18 Ruling Case Law, p. 926, § 57; Ferguson v. Ashbell & Simpson, 53 Tex. 245. The text of Ruling Case Law reads as follows:
“ ‘Mechanics’ liens being purely statutory, there is no intendment in their favor, and they must show upon their face all the statutory requisites to their validity. They are incipient or inchoate until completed or perfected by compliance with the statute, and are lost utterly if those acts required for their completion be not done in the manner and within the time required by statute. In many eases it is said that a strict compliance with the statute must be shown, but this doubtless means that all the statutory steps must be taken, and that the notice or statement of the lien shall contain all the aver-ments required by the statute.’
“In the case of Ferguson v. Ashbell, just cited, this court said:
“ ‘In verbal contracts, however, the terms and specifications of the contract and the amount and value of the work and materials furnished, are made ex parte, and should be so specific and certain as to advise the owner of the property, other lien creditors, if any, and all persons interested, of the particulars of the demand sought to be enforced, so that if they desire, they may be prepared to contest the same.’
“We conclude that the accounts of both Davis and Morgan were too indefinite to fix or establish a mechanic’s or laborer’s lien on the property involved in this litigation. Authorities supra; McClellan v. Haley (Tex. Com. App.) 250 S. W. 413, 415; Banner Oil & Gas Co. v. Gordon (Tex. Civ. App. 235 S. W. 945.”

According to the undisputed evidence revealed by this record and the law as announced by the Supreme Court, the appellants did not acquire a lien as laborers or contractors on the property involved, because no itemized account was filed, the amount of the indebtedness claimed is not shown, the prices for the work are not- given, the depth drilled is not revealed, the payments and credits made for the work do not appear and no data furnished by which it could be ascertained that the amount claimed is correct, and the statutory requirements of an affidavit and account for the purpose of establishing the lien are not complied with, and the affidavit and contract filed, in the absence of an account; is therefore too indefinite to fix a lien on the property involved in this litigation..

Before the filing of the contract and affidavit or institution of the suit against Mc-Corkle by the appellants and the obtaining of a judgment by them against him, the property involved in this controversy was -sold, delivered, and returned to the appellees. 'The sale of all of such property, except the 2,060 feet of 10-inch casing, as above noted, is evidenced by a bill of sale. The 2,060 feet of 10-inch casing not covered by the bill of sale was sold to S. R. McCorkle as a cash transaction, and no right or title thereto vested in him because he failed to pay therefor. Lang & Weinberger v. Rickmers & Wife, 70 Tex. 108, 7 S. W. 527. There is nothing disclosed in this record that would render the sale from S. R. McCorkle to appellees invalid or affect the title acquired from him by the appellees, because at the time the sale was made no lien existed in favor of appellants on said property, either under the statute or the judgment, and no lien against the appellees ever attached.

Appellants by numerous assignments challenge as error the action of the trial court in refusing to sustain their different motions to quash the sequestration proceedings instituted by the appellees and in overruling certain objections and exceptions made by them to testimony offered by the appellees; but in our view of the case these assignments become immaterial because appellants -acquired no lien against the property, either by statute or judgment, that would affect the claim and rights of appellees. The testimony is uncon-troverted that the appellees retained title to the property, which they furnished and delivered to S. R. McCorkle, the property involved in this controversy, until the consideration therefor was paid. The testimony tends to show that such consideration was never paid, and in our opinion the findings of the jury are supported by the testimony.

Finding no reversible error, the judgment is affirmed.


author: SMITH, J.

text:
    DELLAUGHTER v. HARGROVE.
    No. 8634.
    Court of Civil Appeals of Texas. San Antonio.
    June 24, 1931.

      F. W. Moran, of La Feria, and H. B. Galbraith, of Brownsville, for appellant.
    A. H. Moore, of La Feria, for appellee.
   SMITH, J.

Certain persons promoted “Roselawn addition” to the city of La Feria, in Cameron county. The addition was appropriately, subdivided into blocks, lots, streets, and alleys, and the map and dedication thereof were duly registered in the appropriate county records. An undisclosed number of the lots were sold to prospective home builders,' some of whom constructed their homes thereon. The deeds by which the owners of the addition conveyed the lots to purchasers contained a stipulation that the purchaser should construct no dwelling house on the lot so purchased “the contract price of which is not at least $1,800.” Appellant, M. V. Dellaugh-ter, and appellee, Leon Hargrove; each purchased a lot burdened with this restriction. Apparently appellee constructed a dwelling on his lot which measured up to said restric'tion. Subsequently appellant purchased a-small shack, valued at $100, and moved it onto his lot as a dwelling house, and moved his family therein, over appellee’s protest, according to an implied finding of the trial judge, and still persists in a refusal to remove the house from said premises. At the instance of appellee, the trial court granted a temporary injunction requiring appellant •to move his house from said premises, and afterwards perpetuated .the injunction. Del-laughter has appealed.

The trial court properly entered judgment nunc pro tunc in this case.

It was shown by sufficient evidence that all conveyances of lots in said subdivision, including appellant’s, contained the restriction in question, which was sufficient to charge appellant with notice of that restriction and bind him thereto, so that he is compelled in equity to specifically execute it, and will be restrained from violating it. It does not matter whether such restriction does or does not amount to a covenant which “runs-with the land.” Bom. Eq. Jur. (3d Ed.) § 689. And such violation will be restrained as a matter of course and regardless of the question of injury and damage. Id. §§ 689, 1295.

But the enforcement of such_restriction may be waived by the owners of the subdivision, the grantors in such conveyances, and the purchasers of such lots, by permitting, in silence and without complaint, some lot owners to disregard such restriction and construct improvements in violation thereof. If by this relaxation the property owners permit some of their number to violate the restriction and alter the general scheme sought to be conserved by it, they will be held to have thereby waived their right to insist upon its enforcement against subsequent purchasers. In short, if one who has a right to enforce the restriction and so preserve conditions which it was designed to> keep unaltered, acquiesces in material alterations of these conditions in violation of the restriction, he cannot thereafter ask a court of equity to assist him in preserving them. Clifton George Co. v. Ins. Co. (Tex. Civ. App.) 234 S. W. 705 ; Foster v. Bunting (Tex. Civ. App.) 19 S.W.(2d) 784; Johnson v. Poteet (Tex. Civ. App.) 279 S. W. 902.

Under this rule it was proper for appellant to'show that other purchasers of lots in the addition in question violated the restriction sought to be enforced here against appellant, for the purpose of showing that ap-pellee had waived his right to enforce the restriction .against appellant, and the trial court erred in excluding such testimony. Johnson v. Poteet, supra.

The judgment is reversed, and the cause remanded.


author: SELLERS, J.

text:
    PRUITTE et al. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.
    No. 4026.
    Court of Civil Appeals of Texas. Texarkana.
    July 2, 1931.
    Rehearing Denied July 4, 1931.

      S. P. Jones and Franklin Jones, both of Marshall, for appellants.
    Bibb & Bibb, of Marshall, for appellee.
   SELLERS, J.

This is an appeal from a judgment of the district court of Marion county sustaining certain pleas of appellee to the jurisdiction of the court and dismissing causes No. 9687 and No. 9716 which had theretofore been consolidated by the court. It is alleged that Frank Pruitte, while working for the Marshall Compress at Marshall, Tex., on August 29, 1928, received an injury (heat prostration) ; that said Pruitte partially recovered from this injury, and on August 31, 1928, while working for the Jefferson Compress at Jefferson, Tex., received another such injury from which he died on September 6, 1928.

On September 15, 1928, Wm. Pruitte gave the following notice of fatal injury upon a form furnished by the Industrial Accident Board:

“Notice of Fatal Injury
“Industrial Accident Board
“Austin, Texas.
“Section 4a, Part III. Unless the association or subscriber (employer) have notice of the injury, no proceedings for compensation for injury under this Act shall be maintained, unless a notice of the injury shall have been given to the association or subscriber (employer) within thirty (30) days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity within six (6) months after the death or the removal of such physical or mental incapacity. Provided, that for good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice and the filing of the claim before the Board.
“This is to notify you Ocean Accident & Guarantee Corporation that on the 29th day of August, 1928, at about 11 o’clock A. M. Frank Pruitte sustained fatal injury while employed by Marshall Compress Co., Marshall, Texas. The place of injury was while working in cylinder at compress. The cause of death was heat prostration.
“State names and P. O. address of nearest relatives: Wm. Pruitte, 811 West Grand Ave., Marshall, Texas.
“Wm. Pruitte
“811 W. Grand Ave.,
“Marshall, Texas.
“Dated this 15 day of September, 1928.
“This notice should be executed in duplicate and one copy mailed to the Industrial Accident Board and the other copy delivered to the employer or the Insurance Company or Association carrying his insurance.”
On the same date he filed the following claim for compensation with the Industrial Accident Board:
“Claim for Compensation for Death.
“Industrial Accident Board
“Austin, Texas.
“Note: This claim should be made out in duplicate, one copy thereof should be mailed to tlie Industrial Accident Board and the other copy should be delivered to the Employer or the Insurance Company or Association carrying his insurance.
“This is to notify you Ocean Accident & Guarantee Corporation that I claim compensation from you under the Employers’ Liability Act of Texas, on account of the death of Frank Pruitte on the Gth day of Sept. 1928, which resulted from injuries sustained on the 29 day of August, 1928, while in the employ of Marshall Compress Company, Marshall, Texas. The place of injury was while working in cylinder at compress. The cause of death was heat prostration.
“Name and P. O. address of witnesses in support of claim: Geo. Washington, Marshall, Texas., Edd Richardson, Marshall, Texas; John Madison, 907 West Grand Ave., Marshall, Texas.
“Give names and P. O. address of the beneficiaries of the deceased (stating the kinship of each such Beneficiary to the deceased):
“Wm. Pruitte, 811 West Grand Ave.
“Ester Pruitte, 6S9 E. Eleven St., Riverside, Cal.
“Zepha Pruitte, 1205 E. Tenth St., Ft. Worth, Tex.
“Which of the legal Beneficiaries above named are minors? State ages: Ester Pruitte, age 15.
“Length .of time employed in same employment previous to date of injury 20 years, with exception of tioo years.
“Wages of deceased employee on date of injury were $100.00 ’per'month.
“Deceased was employed six days per week.
“This claim for compensation, with respect to such injury and because of the death of deceased, is made in behalf of and for each and all of the legal beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal beneficiaries.
“Wm. Pruitte
“811 W. Grand Ave.,
“Marshall, Texas.
“Dated this 15 day of Sept. 1928.
“Note: If it is claimed that the injury was caused through’the violation, by the employer, of any statute enacted for the safety of the employees contributed to the injury or death of such employe, it is requested that it be stated in this claim for compensation.
“Note: Section 4a Part II. Employers’ Liability Act. Unless the association or subscriber have notice of the injury, no proceedings-for compensation for injury under this Act shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty (30) days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same, or, in case of death of the employee or in the event of his physical or mental incapacity within six (6) months after the death or removal of such physical or mental incapacity. Provided, that for good cause the board may in meritorious cases waive the strict compliance with the foregoing limitations as to notice and the filing of the claim before the board.”
' On November 14, 1928, the Industrial Accident Board made the following order:
“Frank Pruitte (Dec’d), Employee, vs. Marshall Compress Company, Employer. N-23908.
“Ocean Accident & Guarantee Corporation, Ltd., Insurer.
“On this 14th day of November, A. D. 1928, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board claims for compensation made and asserted herein by and in the names of Fred Pruitte, Sam Pruitte, Zepha Pruitte, and Ester Pruitte, surviving children of Frank Pruitte, deceased, against the Ocean Accident and Guarantee Corporation, Limited, which have not been settled by agreement between the parties, and the Board now finds and orders as follows:
“That said claimants have failed to sustain the burden imposed upon them.by law to establish to the satisfaction of the Board that Frank Pruitte, deceased, suffered injury while engaged in the course of his employment in the capacity of employee which resulted in his death, but to the contrary it has been made to appear that his death was the result of natural causes in no way connected with or incident to his employment, and therefore, said Ocean Accident and Guarantee Corporation, Limited, ought to be and is hereby fully and finally acquitted and discharged from liability on account of claims of Ester Pruitte, Zopha Pruitte, Sam Pruitte, and Fred Pruitte, and it is so ordered, adjudged and decreed by the said Board.”

No notice of dissatisfaction with this award was filed with the board within twenty days as required by the provisions of this act, nor was any appeal taken from the board’s ruling. In fact, no further proceedings were had with reference to such claim until January 9,1929, when Wm. Pruitte filed a motion with the board to reopen the casé and reconsider the award entered on November 14, 1928.

On January 22,1929, Wm. Pruitte qualified as guardian of Ester Pruitte, the minor referred to in the claim filed by Wm. Pruitte with the board.

On February 28, 1929, another order refusing to reopen the award of November 14, 1928, was made by the board, and within twenty days the appellants gave notice of their dissatisfaction with the board’s ruling, which notice'is as follows:

“Frank Pruitte (Dec’d), Employee, vs. Marshall Compress Company, Employer. N-23908.
“The Ocean Accident & Guarantee Corporation, Ltd., Insurer.
“The Industrial Accident Board,
“Austin, Texas.
“You will take notice that the claimants, William Pruitte, Fred Pruitte, Sam Pruitte, Zepha Pruitte and Ester Pruitte, are dissatisfied with the final award, ruling and decision entered hy this Honorable Board on the 28th day of February, A. D. 1929, and within the statutory period from the date of filing hereof will file suit in the district court of the proper county to set aside said final ruling, decision and award made hy the Industrial Accident Board on the 28th day of February, A. D. 1929.
“This 12th day of March, A. D. 1929.”

Still another motion was made by the beneficiaries of Frank Pruitte to the board to reopen the award of November 14, 1928, which was denied by the board on March 26, 1929, and to the order overruling such motion appellants gave notice of dissatisfaction, substantially as that above set out. The appellants within the statutory time filed suit in the district court of Marion county, appealing from the orders of the board made respectively on February 28, 1929, and March 27, 1929, said suit being cause No. 9687 on the civil docket of said court and was filed on March 30, 1929.

On March 28, 1929, the following application signed by attorneys for petitioners was filed with the Industrial Accident Board:

“Before the Industrial Accident Board
“Austin, Texas,
“Frank Pruitte (Deceased), Employee, vs. Marshall Compress Company, Employer.
“The Ocean Accident and Guarantee Corporation, Insurers.
' “Now comes William Pruitte, guardian of the estate of Ester Pruitte, a minor, and shows that heretofore, to-wit, on the 6th day of September, 1928, Frank Pruitte died as a result of injuries he received while in the employ of the Jefferson Compress Company at Jefferson, Marion County, Texas, and when the Ocean Accident & Guarantee Corporation, Ltd., carried the Workmen’s Compensation Law, which was then in force and covered the employees of the Jefferson Compress Company. That thereafter, on the 22nd day of January, 1929, the said Ester Pruitte acting through her guardian in affidavits filed in this claim, pending as a claim against the Ocean Accident & Guarantee Corporation, Ltd., covering insurance on the employees of the Marshall Compress Company at Marshall, Texas, brought to .the notice of this Board through affidavits of Lula Barber, Jim Jackson, R.' H. Wood, Doctor Felix Peebles and Jack Buchanan filed therein, that the said Frank Pruitte wás an employee of the Jefferson Compress Company at 'the time he received the injuries that caused his death.
“The said Ester Pruitte through her guardian for herself, and for the benefit of the other beneficiaries, Zepha Pruitte, Sam Pru-itte, Fred Pruitte, and William Pruitte, here ■presents this motion and asks that the Board dispose of said claim against the Jefferson Compress Company, and the Ocean Accident & Guarantee Corporation, growing out of the death of her father, Frank Pruitte, by an appropriate award to be entered by this Board.
“Wherefore, plaintiff prays for consideration and disposition of said claim, which-said claim was brought to the attention of this Board by the said affidavits within six (6) months after the death of the said Frank Pruitte.”

Notice was given by the Industrial Accident Board of the filing of this application and of the setting of the same for hearing, and then pursuant to this notice on April 25, 1929, the board made this order:

“Frank Pruitte (Dec’d), Employee, vs. Mar- > shall Compress Company, and or Jefferson Compress Company, Employer. N-23908.
“Ocean Accident and Guarantee Corporation, Ltd., Insurer.
“On this 25th day of April, A. D. 1929, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board application to review order made and entered herein under date of November 14,1928, and the Board now finds and orders as follows:
“That the said Fred Pruitte, Sam Pruitte, Zepha Pruitte, and Ester Pruitte, have failed to establish to the satisfaction of the Board that fraud was practiced in the procurement of said award or that a change of conditions has been undergone with reference to claimants, nor has it been made to appear that any such mistake as contemplated by law was committed in the making and entering of said order which would afford warrant for the Board to now undertake the making of of a change therein, but to the contrary the mistake which appears to be relied upon by said claimants to procure a change in said order is merely one of judgment on the part of the Board, and therefore review of said order ought to be and the same is hereby in all things denied and refused; and it is so ordered, adjudged and decreed by the said Board.
“E. S.
“J. M. P.”

The claimants gave the statutory notice to the board stating their dissatisfaction with the award of April 25, 1929, and on May 1, 1929, appealed from the ruling of the board by filing suit in the district court of Marion county; same being cause No. 9716 on the civil docket of said court.

In the light of the above statements of the proceedings, we have • reached the conclusion that the trial court did not err in dismissing cause No. 9687 for want of jurisdiction which is an appeal from the orders respectively of February 28, 1929, and March 27, 1929, of the board refusing to reopen the previous final order made on November 14, 1928. This award of November 14th denying compensation not having been appealed from as required by article 8307, § 5, Revised Statutes of 1925, as amended by Acts 40th Leg. (1927), c. 223 (Vernon’s Ann. Oiv. St. art. 8307, § 5), became final and the board had no jurisdiction to reopen the same. Cooper v. U. S. F. & G. Co. (Tex. Com. App.) 29 S. W.(2d) 971.

The Workmen’s Compensation Act does not expressly require each beneficiary himself to file a claim with the Industrial Accident Board before that board would be authorized to make an award. The claim as filed by Wm. Pruitte upon the blank furnished by the board, so far as this record discloses, mentions all and gives correct information as to who the beneficiaries of Frank Pruitte were. And we have concluded that this application may be treated as sufficient to invoke the jurisdiction of the board to make an award covering the injury sustained while working .at the Marshall Compress.

Neither do we agree with appellants that the board was without jurisdiction as to the minor, Ester Pruitte, referred to in the application, for compensation filed by Wm. Pruitte on September 15, 1928. The general law of Texas has no application with respect to proceedings before the Industrial Accident Board, and since such act --has no provision expressly requiring the appearance before the board by next friend or by guardian, the orders of the board are as binding upon the minor beneficiaries as they are upon adult beneficiaries. But we are of the opinion in this case that the application for compensation filed by Wm. Pruitte on September 15,1928, had the legal effect of an appearance before the board by Wm. Pruitte as the next friend of Ester Pruitte.

The application for compensation, however, filed by Wm. Pruitte on September 15, 1928, made no mention of the injury sustained by Frank Pruitte while employed by the Jefferson Compress at Jefferson, Tex., and since it is necessary for the board to have an application filed with the board for compensation for an injury before it acquires jurisdiction to make an award (Southwestern Surety Ins. Co. v. Curtis [Tex. Civ. App.] 200 S. W. 1162), it is believed that the Industrial Accident Board never acquired jurisdiction of the injury received by Frank Pruitte on August 31, 1928, while working for the Jefferson Compress until the application of March 28,1929, was filed. Although this application was filed more than six months after the death of Frank Pruitte, and the board made an award denying the compensation, yet an appeal from the ruling was duly prosecuted to the district court of Marion county by filing cause No. 9716, and applicants were entitled to have a trial of this cause by the court and to have determined by the court or jury, if one should ■be demanded, along with the other issues, the issue of whether good cause existed excusing the filing of the application for compensation within six -months as provided for in article 8307, § 4a, R. S. 1925; Texas Indemnity Ins. Co. v. Holloway et al. (Tex. Civ. App.) 30 S.W.(2d) 921.

The claim for injury received by Frank Pruitte while working for the Marshall Compress at Marshall, Tex., on August 29, 1928, was entirely independent of and had no connection whatever with the claim for injury received by Frank Pruitte while working for the Jefferson Compress at Jefferson, Tex., on August 31, 1928. They are alleged to have happened on different dates while working for different employers in different counties, and under the Workmen’s Compensation Act, each invoke the jurisdiction of a different court on appeal, for it is provided in article 8307, § 5, that all appeals from the ruling of the board shall be to the court of proper jurisdiction in the county where the injury occurred.

We have concluded that the judgment of the trial court as to cause No. 9687 should be affirmed, and as to cause No. 9716 the judgment will be reversed and the cause remanded.


author: HALL, C. J.

text:
    CROWELL et al. v. CAMMACK et al.
    No. 3684.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.
    Rehearing Denied July 11, 1931.
    O. R. Tipps, of Silverton, for appellants.
    C. B. Whitten and Farris Fish, both of Matador, for appellees.
   HALL, C. J.

This is an appeal from an order of the district court denying an application for temporary injunction.

The plaintiffs .instituted this action against the commissioners’ court of Motley county, seeking to restrain the expenditure of certain funds which they show to be the proceeds of bonds which had been voted for road purposes. The orders for the election specified where and how the funds should be expended. The following order appears upon the minutes of the commissioners’ court of Motley county;

“It is hereby ordered by the commissioners’ court of Motley County, Texas, in connection with the proposed election on the issuance of $250,000.00 special road bonds that in the event the bonds are ordered issued by the voters at the polls, the proceeds of such bonds shall be applied and used as follows: $100,-000.00 on Highway No. 28, running east and west through Motley County; $120,000.00 on Highway No. 18, running north and south through Motley County.”

It is alleged that this order was entered on January 10, 1927, while the petition for the election was being circulated, and the purpose of the order was to settle in the minds of the voters the question as to how the funds would be expended, if voted. It is further alleged that a portion of the funds had been diverted and were being used for the construction of an entirely new road instead of improving the roads designated in the order and which existed upon the ground at the time the order was made.

No answer was filed swearing away the equities of the bill. •

Under such circumstances the facts stated in the petition must be taken as true. ' '

Upon presentation of the petition 'to the district judge, a temporary injunction was refused without a hearing.

The allegations in the petition are sufficient to show that the diversion of the funds from the purposes originally intended when the bonds were voted would be, in effect, a fraud upon the electorate in Motley county. We think the court should have granted the temporary injunction. Fletcher v. Howard (Tex. Civ. App.) 26 S.W.(2d) 444; Id. (Supreme Court) 39 S.W.(2d) 32; Black v. Strength, 112 Tex. 188, 246 S. W. 79; Heathman v. Singletary (Tex. Com. App.) 12 S.W. (2d) 150; Robbins v. Limestone County, 114 Tex. 346, 268 S. W. 915 ; Wright v. Allen (Tex. Civ. App.) 257 S. W. 980.

In the last case, it is held that pre-election orders made and entered by commissioners’ courts in reference to a bond election must be treated as part of the contract between the court and the people of the county. The petition alleges that in addition to the order entered upon the minutes, the commissioners’ court issued a pre-election pamphlet stating specifically how the $250,000 would be spent, representing that $100,000 would be spent on Highway 28, and $120,000 on Highway 18, and $30,000 upon lateral roads in Motley county. We think that counties, in dealing with their citizens, should be as fair and as honest as the citizens are expected to be in dealing with each other. Taking the facts alleged in the petition as true, the commissioners’ court is violating and about to further violate the terms of a contract entered into with the electorate of the county in virtue of which the latter voted the bonds.

There is a further reason why the court erred in refusing the temporary injunction, in this: That if the $120,000 which the commissioners’ court promised to apply upon Highway No. 18, thereby securing the votes of those who favored such expenditure, is spent upon other roads, there is no method of replacing that sum after this case has been decided upon its merits. The purpose of a temporary injunction is to preserve the status of the property or the subject-matter of the suit as it theretofore existed ímtil a final hearing can be had on the merits. As stated in James v. E. Weinstein.& Sons (Tex. Com. App.) 12 S.W.(2d) 959, the law is well settled in this state that the purpose of the issuance of a .temporary injunction is to maintain the status quo in regard to the matter in controversy and not to determine the respective rights of the parties under the cause of action asserted or defenses urged.

Eor the reasons stated, the judgment is reversed, and the cause remanded, with instructions to the trial court to forthwith grant the temporary injunction.

Reversed and remanded, with instructions.


text:
    JONES v. CLARK.
    No. 4043.
    Court of Civil Appeals of Texas. Texarkana.
    June 17, 1931.
    Rehearing Denied June 25, 1931.
    Duncan & Fanning, of Sulphur Springs, for appellant.
    Clark, Harrell & Clark, of Greenville, for appellee.
   SELLERS, J.

This is a suit by W. R. Clark, appellee, against R. O. Jones and Drewery Jones for the balance due on a vendor’s lien note executed by R. C. Jones to Drewery Jones, and transferred before maturity by Drewery Jones by indorsement to appellee. The appellant defended the suit on the ground that the note and lien sued upon were void, for the reason that they were created in a simulated sale of the homestead of Drewery Jones, appellant, to his son, R. C. Jones, and that the appellee knew the note was given in a simulated sale of the homestead of appellant at the time he purchased the note. The case was tried before the court without the aid of a jury, and, after hearing the evidence, the court rendered judgment for appellee for his debt and the foreclosure of'the lien upon the land securing the same, to which judgment the appellant Drewery Jones excepted, and has duly prosecuted his appeal to this court for review.

The appellee-in this case insists that appellant’s assignments of error contained in his brief, all of which complain of the court’s findings of fact and conclusions of law, should not be considered, for the reason that such assignments were not filed in the trial court and brought forward in the transcript. It appears from the record that judgment was entered on January 24, 1931, and the findings of fact and conclusions of law were filed with the court on February 2, 1931. In this state of the record, assignments of error, appearing for the first time in appellant’s brief, which complain of the court’s findings of fact and conclusions of law will be considered. Busbee et al. v. Busbee et al. (Tex. Civ. App.) 231 S. W. 441.

Appellant has several assignments of error, all of which complain of the court’s findings of fact to the effect that appellee was an innocent purchaser of the note sued upon and the lien securing the same for a valuable consideration in good faith, and without notice that the note was executed in a simulated sale of appellant’s homestead to his son, R. G. Jones.

Without setting out the evidence upon these issues, we think it is sufficient to say that we have carefully considered the statement of facts and have concluded that the evidence upon such issues is squarely in conflict, and we are without power to disturb the trial court’s findings against' appellant upon such issues.

The judgment of the trial court will be affirmed.


author: GREENWOOD, J.

text:
    ECKERT v. WENDEL et al.
    No. 5482.
    Supreme Court of Texas.
    June 24, 1931.
    J. B. Wieser, of Fredericksburg, and Cunningham, Moursund & Johnson, of San Antonio, for plaintiff in error.
    H. H. Sagebiel, of Fredericksburg, for defendants in error.
   GREENWOOD, J.

Plaintiff in error, Max G. Eckert, being the owner of a duly abstracted judgment against Dorenz Wendel and another, brought this suit against Lorenz Wendel and Henry M. Wendel ■to cancel a deed to land in Gillespie county from Lorenz Wendel to Henry M. Wendel, such deed executed after the indebtedness of Lorenz Wendel to plaintiff in error was created, upon the ground that the deed was without consideration and was given in pursuance lof a conspiracy to hinder, delay, and defraud the creditors of Lorenz Wendel. Plaintiff in error also sued to establish his judgment lien against said land and for its foreclosure against both Lorenz Wendel and Henry _ M. Wendel.

Defendants in error excepted to plaintiff in error’s petition “in so far as it seeks to set aside the deed dated May 13, 1921, conveying 762 acres of land for the reason that it appears from the face of said _ petition that plaintiff’s cause of action, if any he has, accrued more than four years as to said deed before the filing of his original petition in this cause, and is barred by the four years statute of limitations.”

The district court overruled the special exception invoking the four-year statute of limitations (Rev. St. 1925, art. 5529), but, the jury having found that Lorenz Wendel was possessed of property at the date of his deed to Henry M. Wendel which was subject to execution and sufficient to pay his debts, the district court entered judgment for defendants in error.

The Court of Civil Appeals, finding that the evidence was conclusive that-the conveyance to Henry M. Wendel was voluntary and fraudulent, and that Lorenz Wendel was at the date of the conveyance wholly insolvent, nevertheless affirmed the judgment of the trial court. The opinion of the Court of Civil Appeals discloses' the -basis for the court’s action in its concluding sentences, reading:

“Appellant was defrauded by means of the conveyance from Lorenz Wendel to Henry M. Wendel of the 762 acres of land, by deed dated May 13, 1921, filed for record-June 18, 1921, to set aside which he instituted this suit on January 30,1928, over 6⅛ years later. We must hold that his equitable action was barred by the statute of limitation of 4 years. McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315; Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680; Central Nat. Bank v. Barclay (Tex. Civ. App.) 254 S. W. 140.

“While appellant has established his case upon every point but one, he failed to file his suit in time, and it is therefore barred by the 4 years’ statute of limitation (Rev. St. 1925, art. 5529) from the date of his judgment, which statute applies to equitable titles.” 15 S.W.(2d) 1064, 1067.

Tiie single question presented for our decision is whether the action of plaintiff in error was barred by the four-year statute of limitations.

The law is settled in Texas that a creditor, though he have no specific lien, may maintain an action in equity to vacate a fraudulent conveyance of his debtor’s land. Until the creditor, in some manner — such as by levy of attachment or execution or by record. of an abstract of judgment — acquires a lien, or until he acquires title by sale under execution, his only remedy, as against the grantee in a conveyance of real estate 'in fraud of his rights, is an action for a decree annulling the fconveyance as ah obstruction to the collection of his debt. Such an action is not one for the recovery of land, nor is it one to enforce a lien on land, but it is simply an action to cancel a conveyance of land because of fraud, and, no other period of limitation being prescribed for such an action, it comes within the four-year statute. Arbuckle Bros. Coffee Co. v. Werner & Cohen, 77 Tex. 44 to 46, 13 S. W. 983; Cassaday v. Anderson, 53 Tex. 535 to 539; Anderson v. Cassaday, 36 Tex. 652.

The creditor’s cause of action to annul a fraudulent conveyance accrues when the creditor acquires knowledge of the fraud or would have acquired such knowledge in the exercise of ordinary care. Registration of the fraudulent conveyance at a certain date is merely one circumstance bearing on the creditor’s actual or presumed knowledge. Bump on Fraudulent Conveyances (4th Ed.) § 574, p. 559; Smith v. Talbot, 18 Tex. 783; Hudson v. Wheeler, 34 Tex. 367; Kuhlman v. Baker, 50 Tex. 636; Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680, 681; Ryman v. Petruka (Tex. Civ. App.) 166 S. W. 711, 712.

In the instant ease, plaintiff in error, having obtained a judgment lien on the lands of his debtor, Lorenz Wendel, sued to establish that lien and to foreclose it against both Lorenz Wendel and Henry M. Wendel, the latter alleged to have no right, title, or interest in the lands, save as grantee in a conveyance executed by Lorenz Wendel to Henry M. Wendel without consideration and for the purpose of hindering, delaying, and defrauding the subsisting creditors of Lorenz Wendel, including the plaintiff in error.

A careful analysis discloses that under the decisions of the Supreme Court of this state a suit to enforce a subsisting judgment lien on land against a grantee in a conveyance void under our statutes as to the judgment creditor is not barred until the fraudulent grantee or his assigns acquires “full title” to the land, “precluding all claims,” under some statute of limitations which would bar an action for the recovery of real estate.

In Rutherford v. Carr, 99 Tex. 105, 87 S. W. 815, 816, the court approved an earlier decision, saying: “In Belt v. Raguet, 27 Tex. 481, the issue was the right of the creditor to sell property fraudulently conveyed, and' the claimant of the property pleaded limitation against the right to have the property sold. In answer to the plea the Supreme Court of this state said: ‘A fraudulent conveyance is declared void, by the statute, as to the creditors of the fraudulent grantor. As a necessary consequence, no length of possession by the debtor has any effect upon the rights of the creditor, so long as his debt remains unsatisfied, and his remedy for its collection is not lost by his laches; and, as the fraudulent vendee gets no title against the creditor by the conveyance, he can only bar his recovery by such adverse possession as will give him title.’ This language distinctly holds that the limitation applicable to that case was that which is invoked by adverse possession.”

The opinion in Rutherford v. Carr, supra, plainly construes the Texas statutes as preventing the passage of title out of the debtor, as against the protected creditor, by a conveyance denounced as fraudulent as to such creditor, and as entitling the creditor in any proper action between himself, his debtor, and those claiming under the fraudulent conveyance to establish its true character. The court thus gives effect to the Legislature’s denunciation of the fraudulent or voluntary conveyance as void as to creditors within the' protection of th£ statutes. It was therefore decided in Rutherford v. Carr that, without first maintaining an equitable action to cancel a fraudulent conveyance, and subsequent to the time when such an action would be barred under the four-year statute, the creditor could sell the property conveyed, under execution, and acquire such title as would enable him to successfully maintain an action of trespass to try title against those claiming under the fraudulent conveyance, until the action of trespass to try title was barred by adverse possession under the three, five, or ten year statutes (Rev. St. 1925, arts. 5597, 5509, 5510). In speaking of the judgment of the district .court, which upheld the title of the grantee in the fraudulent conveyance, the opinion in Rutherford v. Carr, at page 107 of 99 Tex., 87 S. W. 815, 817, concludes: “A fair analysis of this judgment may be thus stated: The plaintiffs [the purchasers at execution sale] have the legal title to the land, but the defendant, who cannot sustain limitation against the right to recover the land, thwarted an attack upon his void deed by pleading limitation that would be a bar to a suit which plaintiffs did not institute. The judgment cannot be sustained.”

In a prior part of the opinion, the reason for the decision was given in a quotation from the Supreme Court of South Carolina in Amaker v. New, 33 S. C. 36, 11 S. E. 386, 387, 8 L. R. A. 689, as follows: “I can very well understand how the law, from consideration of public policy, may forbid one from invoking its aid by bringing an action to set aside a deed for fraud, after tbe time limited for tbe purpose, but I am unable to understand upon what principle, either of law, equity, or good morals, one wbo bas made out a prima facie case for tbe relief be demands can be forbidden from showing that the defense set up against bis claim is founded in fraud, simply because such fraud bad been committed so long ago as to bar an action brought to obtain relief from such fraud.”

Tbe precise question before us arose in 'South Carolina soon after Amaker v. New was decided. Treating that decision as necessarily determining that a fraudulent conveyance was a nullity as to a creditor, so that-it could, afford no obstacle to a mortgage creditor’s foreclosure, though a suit for cancellation of tbe fraudulent conveyance was barred, tbe Supreme Court of South Carolina .declared:

“But we are of opinion that tbe statute of limitations is not applicable to tbe case. This is not an ‘action for relief on tbe ground of fraud,’ but, on tbe contrary, it is simply an action for tbe foreclosure of a mortgage of real estate, and the plea of tbe statute does not, and cannot, have any application to anything but tbe cause of action as stated in the complaint. * * *
“Tbe plaintiff here, havmg> established bis cause of action, as set forth in bis complaint, by proving tbe execution of tbe note and mortgage, was entitled to judgment of foreclosure, unless tbe appellant succeeded in establishing her title paramount to tbe mortgage. For this purpose she relied upon tbe deed in question, and therefore tbe only remaining question was whether such deed was sufficient to vest tbe title in her; and surely the plaintiff was at liberty to show any defect in that deed which would render it insufficient to vest such title in appellant, either by showing that it was a forgery or that it was obtained by duress or any other fatal defect; and, if so, why should not the plaintiff be allowed to show that it was void for fraud, and therefore incapable of vesting the title in appellant, and thus insufficient to sustain the defense relied on? It must be remembered that the statute of limitations does not even purport to destroy or extinguish a cause of action, but simply to close the doors of the courts to a suitor who undertakes to bring his suit upon such cause of action after the lapse of the prescribed period; hence it has been held in Wilson v. Kelly, 16 S. C. 216, that while a holder of a note may have lost his right of action for the breach of the contract evidenced by the note, by reason of the lapse of the prescribed time, yet, if he can obtain payment in any other way than by resort to an action on such contract, he has the right so to do. So here the statute does not have the effect of converting a fraudulent deed into a valid deed, by reason of the lapse of the prescribed time, but it simply forbids the right of action for relief on the ground of fraud; and hence, if the question as to the fraudulency of the deed arises in any other way than in such an action, there is nothing in the statute which forbids its being assailed for fraud. It seems to us that the case of Amaker v. New [33 S. C. 35, 11 S. E. 386, 8 L. R. A. 687], supra, is so entirely conclusive of this question tha-t we need not consider it further.” Jackson v. Plyler, 38 S. C. 500, 501, 17 S. E. 255, 257, 37 Am. St. Rep. 782. ,
In a dissenting opinion in Brasie v. Minneapolis Brewing Co., 87 Minn. 468, 92 N. W. 340, 344, 67 L. R. A. 865, 94 Am. St. Rep. 709, .Chief Justice Start gave a clear statement of the grounds supporting the conclusions reached in Rutherford v. Carr, Amaker v. New, and Jackson v. Plyler, supra, when he said: “The conclusion that the legal title passes by the execution sale necessarily follows from the rule, which is well settled in this state, and in nearly all of the states of the Union having statutes similar to our own (Gen. St. 1894, § 4222),' that the title of the fraudulent grantee in such cases is, as to the creditor, a nullity, and Eis judgment a valid lien at law upon the land attempted to be fraudulently conveyed, which may be enforced in the .same manner and with precisely the same effect as if there had been no such conveyance. ⅜ * * As to the creditor, to defraud whom the conveyance is made, it is void (Gen. St. 1878, c. 41, § 18, G. S. 1894, § 4222), and is of no effect whatever in the way of passing the title. The title, for the purpose of enabling creditors to enforce their debts against the real estate, still remains in the grantor, as though the conveyance had •not been made; and it is equally clear that the creditor who has proceeded to enforce his debt against the real estate, or any one claiming through such proceedings, may show the conveyance to be void, as against such proceedings, whenever any one shall claim under such conveyance, and in opposition to the creditor’s proceedings, or the title derived through them.”

Similar views are expressed by the Supreme Court of Missouri in Slattery v. Jones, 96 Mo. 216, 8 S. W. 554, 555, 9 Am. St. Rep. 344, where it is said:

“The court below held that a judgment is not a lien upon property fraudulently conveyed prior to its rendition; that such a transfer is not void, but only voidable as against creditors; that the levy of an attachment created a superior lien to the supposed lien of a judgment thus rendered-; and decreed the title to be in the plaintiff.
. “Our statute declares that every conveyance of land made with intent to defraud creditors; etc., ‘shall he ’ from henceforth deemed and taken, as against said creditors and purchasers, * * * to be clearly and utterly void.’ Rev. St. § 2497. Further statutory provisions bearing on the point in hand are as follows: ‘Sec. 2730. Judgments and decrees rendered by any court of record shall be a lien on the real estate of the person against whom they are rendered, situate in the county in which the court is held. Sec. 2731. Such liens shall commence on the day of rendition of the judgment, and shall continue for three years.’ * * *
“In his work on Executions, Mr. Freeman observes: ‘Whoever goes out with an execution to seek the fruits of his judgment is too apt to find that fraud has forestalled him. It then becomes his business to pursue these fruits wherever fraud has taken them; to wrest them from the possession of his adversary, wherever they may be found; and to prepare himself to show that the refuge whence he has wrested them is the refuge of fraud. In many instances the aid of equity is invoked. But, generally, this is unnecessary; for a transfer made to hinder, delay, or defraud creditors, while, as between the parties, it conveys the title, has, as against a creditor proceeding under execution, no such effect. As against the fraudulent transference, the creditor may seize the property, whether real or personal, as that of the fraudulent vendor, and may proceed to sell it under execution. The title transferred by such sale is not a mere equity, not the right to control the legal title, and have the fraudulent transfer vacated by some appropriate proceeding; it is the legal title itself, against which the' fraudulent transfer is no transfer at all.’ Freem. Ex’ns, § 136. * * *
“An author of recognized authority says: ‘If the creditors obtain judgments against the debtor after the transfer, they acquire liens upon his property, wherever the same are given by law, according to the dates of their respective judgments, in the same manner precisely as if no transfer had been made; for the transfer is a nullity as against them, and the legal as well as the equitable title remains in the debtor for the purpose of satisfying debts.’ Bump, Fraud. Conv. (3rd Ed.) 474. This position is abundantly sustained by the authorities.”

In Thomason v. Neeley, 50 Miss. 313, a statute like that of Texas was under consideration, when the court said: “We have held, in several cases, analogous in features to this, that as the statute condemned a fraudulent conveyance to be null and void as to the creditor, he has. precisely the same extent of right against the property embraced in it as though it never had been made. In effect, the debtor owns the property with the same extent of interest as though he never had conveyed, and the creditor has a lien under his judgment, quite as controlling over the title as though the fraudulent deed had never been executed. The creditor may treat his debtor as owner of the property, and may pursue his process for satisfaction as if the title were unembarrassed by the fraudulent deed.”

As stated in Smith v. Reid, 134 N. Y. 577, 31 N. E. 1082, 1085: “A judgment creditor cannot be deprived of his legal right to enforce collection of his judgment against the lands of his. debtor by a fraudulent convey-i anee thereof prior to the entry of the judgment; nor can he by such a conveyance be forced to pursue an equitable remedy for the collection of his debt, instead of a legal one.”

The situation, under the averments of plaintiff in error’s petition, is this: The land as to him is still the property of his debtor, and hence he is entitled to have the land sold under foreclosure of his judgment lien and its proceeds applied to his debt, unless the vendee of the debtor has acquired title by three, five, or ten year limitation. Henderson v. Henderson, 133 Pa. 413, 19 A. 424, 19 Am. St. Rep. 650; First National Bank of L. A. v. Maxwell, 123 Cal. 370, 371, 55 P. 980, 69 Am. St. Rep. 64; Hillyer v. Le Roy, 179 N. Y. 375, 376, 72 N. E. 237, 103 Am. St. Rep. 919.

We are unable to reconcile our decision with the action of the Supreme Court in refusing a writ of error in Gans v. Marx, 25 Tex. Civ. App. 497, 61 S. W. 527, which case was cited by the Supreme Court in Home Inv. Co. v. Strange, 109 Tex. 342, 195 S. W. 849, 852, 204 S. W. 314, 207 S. W. 307. The opinion in Gans v. Marx is therefore expressly disapproved.

The Supreme Court, through Chief Justice Hemphill, observed in Reynolds v. Lansford, 16 Tex. 291, that both principle and high authority supported the proposition that limitations would bar the rights of a creditor when the vendee in a fraudulent conveyance held actual, exclusive, and adverse possession of the property conveyed. The opinion of Chief Justice Gaines in Wilcox v. National Bank, 93 Tex. 332, 55 S. W. 317, 320, declared that, “under the rule in this state, an action to enforce a lien upon land, there being no adverse possession, is not barred until the debt is barred. Slaughter v. Owens, 60 Tex. 668; Beck v. Tarrant, 61 Tex. 403. Adverse possession for the statutory period would probably preclude a claim for a lien. Rev. St. art. 3347; Towns v. Harris, 13 Tex. 507.”

That adverse possession should preclude the successful assertion of a claim against land, held under the prescribed adverse possession, though the claim was in the form of a lien, necessarily resulted from the principle declared in Heirs of Burton v. Carroll, 96 Tex. 325, 72 S. W. 581, 582, that the full title to land, acquired by limitation, embraced “all of tbe title which bad emanated from the state '* * * as against the claim of any and all persons.”

The single question determined in White v. Pingenot, 49 Tex. Civ. App. 641, 90 S. W. 672, was that a deed void as to a judgment creditor for fraud supported the three and five year statutes of limitations, and that three and five year adverse possession under such deed, the other requirements of these statutes being met, could be invoked by the grantee in the fraudulent deed to defeat foreclosure of the creditor’s judgment lien on the land. White v. Pingenot was in line with B. C. Evans Co. v. Guipel (Tex. Civ. App.) 35 S. W. 940, 941, which was followed in Stern v. Marx, 23 Tex. Civ, App. 439, 56 S. W. 93, with writ of error denied in the latter case.

In Shaw v. Ball, 23 S.W.(2d) 291, the Commission of Appeals in an opinion by Judge Critz sustained the decision of the Eastland Court of Civil Appeals to the effect that the judgment creditor’s lien on real estate, acquired by registration of an abstract of judgment, was such a claim to land as could be defeated under the- three and five year statutes of limitations. Relative to the citation by the court at Eastland of White v. Pinge-not, the opinion of Judge Critz says: “The authority cited by them in support thereof is certainly in point, and, as writ of error was denied in that case, the Supreme Court must have approved the holding, as the writ could not have properly been denied in any other event.” Shaw v. Ball (Tex. Com. App.) 23 S.W.(2d) 291, 293; J. M. Radford Gro. Co. v. Shaw (Tex. Civ. App.) 9 S.W.(2d) 419.

Discussing the case of Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680, the opinion of Mr. Justice Brown in Rutherford v. Carr, supra, said: “In that case the property had been conveyed by a debtor so that it finally reached his wife, and she had occupied and used it strictly in accordance with the statute for the number of years required to complete the bar against the lien of the creditors. It was held in that casé that her possession barred the right of the creditors to subject the property to the payment of the debt. The statute applicable to suits for real estate was applied. In the same case plaintiff, as an alternative remedy, sought to have the court sell the property, and to pay to the vendee of the debtor the sum actually paid for it, and to distribute the remainder of the proceeds of the property among the creditors; but the court declined to do so, because, if the property had been occupied for such length of time that the defendant acquired title thereto, the court certainly could not in any proceeding sell it for the purpose of distributing its value between the owner and any other claimant.” 99 Tex. 106, 87 S. W. 815, 817.

The Supreme Court reviewed the case of Pearson v. Burditt, 26 Tex. 173, 80 Am. Dec. 649, in the leading case in Texas, interpreting the three year statute, saying through Chief Justice Stayton:

“The question was sharply presented in the brief of counsel thus: ‘The deed of Burditt does not come within the statutory definition either of title or color of title. It is not “a regular chain of transfer from and under the sovereignty of the soil.” A chain of title of which one of the links or deeds is fraudulent cannot be said to be regular. The patent passed the fee to Silsbee. The deed to Bur-ditt, being fraudulent, transferred no title. Hence the distinction between the three and five years statutes. The first requires a “title,” the second, a “deed.” Burditt’s deed did not connect him with the title vested in Silsbee by the patent. A fraudulent deed conveys no “title.” * * * If it did not vest the title, Burditt cannot be said to hold under a “regular chain of transfer.” It does not come within the definition of “color of title,” because the fraud in its execution “extends to” and “includes” the want of “intrinsic fairness and honesty.” Hence it does not amount to a “title” or “color of title” under the three-years statute but may be good as a deed under that of five years.’
“Speaking of the plea of limitation based on three years’ adverse possession, this court said: ‘We think it is a good defense, notwithstanding the jury might have believed that the fraud in Burditt’s deed was sufficiently proved as a mere question of the validity of Burditt’s title. It is true, as stated in the opinion above quoted, the plaintiff was in a situation to avoid Burditt’s deed for fraud, and have it set aside, being the administrator of Silsbee’s estate. It was in this point of view that the remark was made in the opinion quoted, that plaintiff could avoid Burditt’s deed by showing it to be fraudulent. It was made with reference to the validity of Burditt’s title, and not with reference to its capacity to support the defense of the statute of limitations of three years. We do not decide this case upon any other principles than those which would govern us were Burditt’s only a color of title instead of title.’ If fraud in the execution of muniment of right by an administrator, whereby the property of an estate passes by color of title to a party -to that fraud, does not fix upon the instrument by which this is accomplished a ‘want of intrinsic fairness and honesty,’ it cannot be held that notice of superior right in another at the time color of title is acquired can do so. * * *
“The statute protects any person having three years’ peaceable adverse possession who can show a regular chain of transfer from or under the sovereignty of the soil conveying what the sovereign’s grant purports to convey. The conveyances in the chain must he sufficient to do that, assuming that they are sufficient if they be executed by the proper persons, as conveyances of land are required to be, and on their faces purport to convey the land described in the original grant, and be not collateral.” Grigsby v. May, 84 Tex. 255-257, 19 S. W. 343, 349.

We cannot declare a deed which is void because in fraud of creditors to be insufficient to support five-year limitation without violating the rule which requires that the deed must be forged or void on its face or else it will support the five-year statute. Roseborough v. Cook, 108 Tex. 366, 194 S. W. 131; Schleicher v. Gatlin, 85 Tex. 275, 20 S. W. 120. No‘voluntary deed is denounced by the statute as necessarily void as to prior creditors. Its validity depends on the debt- or’s solvency at the date of its execution. The debtor’s, solvency necessarily depends on facts extrinsic of the face of the deed. Likewise the intent to hinder, delay, and defraud which makes a gift or conveyance void as to creditors is rarely or never declared on the face of the deed.

In Davis v. Howe (Tex. Com. App.) 213 S. W. 609, 611, it is said that a deed which violates the statute governing a voluntary or a fraudulent conveyance will support a title by limitation under the five-year statute. After referring to the Supreme Court’s reaffirmation of Belt v. Raguet, supra, and its approval of Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680, the Commission of Appeals in Davis v. Howe stated:

“We can perceive no good reason for differentiating the effect, under the five-year statute, of the sheriff’s deed here involved and a deed by one in fraud of creditors executed in violation of the express terms of the statute, the grantee himself participating in the .fraud.
“The only instrument possessing the essential constituent parts of a deed, as does the deed here in question, excepted by the statute from forming the basis of title under the five-year statute, is a forged deed or a deed executed under a forged power of attorney. * ⅜ *
“Originating in fraud, the deed is without effect as a muniment of title; but, fair of face and duly recorded, it performs the office and fpnction of a deed under the statute in like manner as though executed merely by a grantor without semblance of title. Being notified of an adverse claim, whatever its origin, there being no issue of fraud undiscovered or concealed, plaintiffs in error had five years within which to file suit for the recovery of the land, failing in which they are now without remedy.” 213 S. W. 609, 611.

The judgments of the district court and of the Court of Civil Appeals are reversed, and this case is remanded to the district court f01. another trial in accordance with this opinion,


text:
    DOUGLAS et al. v. FIRST NAT. BANK OF EL DORADO.
    No. 5236.
    Supreme Court of Texas.
    June 24, 1931.
    James Cornell, W. A. Anderson, and R. G. Hughes, all of San Angelo, for plaintiffs in error.
    J. A. Thomas, of San Angelo, for defendant in error.
   GREENWOOD, J.

The Court of Civil Appeals makes the following very comprehensive statement of this suit, which is adopted by this court:

“On May 4, 1926, appellant [Bank] sued Ella D. Douglas, individually and as adminis-tratrix of the estate of her deceased husband, W. IT. Douglas, and also his heirs and certain grantees, seeking under article 3314, Revised Statutes 1925, to subject and to establish and foreclose a statutory lien on certain lands in’ payment of an indebtedness owing by W. H. Douglas to appellant. Tire petition alleged in substance that on July 20, 1922, W. H. Douglas executed and delivered to it his note for $4,351, bearing 10 per cent, interest, given for and in renewal of an indebtedness of more than three years’ standing, and that the note was due and unpaid. It was further alleged that W. H. Douglas died intestate January 21, 1925, leaving surviving his widow, Ella D. Douglas, who was duly appointed 'and qualified as administratrix of his estate, and one child, Frank Douglas; that Nora Douglas was the wife of the said Frank Douglas, and of this marriage three children, Allen, Bill, and Ruby, were born, the last two being minors; that on November 8, 1920,'and subsequent to the date he became indebted to aj> pellant, W. H. Douglas and his wife, Ella D. Douglas, being then insolvent, without consideration and by a deed of gift, conveyed certain lands to Frank and Nora Douglas for life, with remainder to their thiee above-named children in fee, the deed being filed for record May 5, 1921; that by a deed of gift, filed for record July 10, 1921, W. H. Douglas and his wife, Ella D. Douglas, being still insolvent, conveyed to their three above-named grandchildren other lands; that the deeds of gift were executed for the purpose of hindering, delaying, and defrauding the grantors’ creditors, including appellant, and as to appellant were void; tjhat for the purposes of this suit the lands should be considered as belonging to the community estate of W. H. Douglas, deceased, and his surviving wife, Ella D. Douglas; and that Frank Douglas should be considered the heir of the community interest of his deceased father. By an amended original petition, filed March 11,. 1927, appellant alleged the same facts as were alleged in its original petition, but in addition thereto alleged that the said adminis-tratrix refused to allow the note as a claim or indebtedness against the estate of W. H. Douglas, deceased, whereupon appellant sued her as administratrix in a separate proceeding from this, and on November 16, 1926, obtained a judgment establishing as against the said estafe its claim or indebtedness as evidenced by the note. The deeds of gift and a certified copy of the judgment obtained against the administratrix November 16,1926, were attached’ to and made a part of appellant’s petition by reference. Appellant prayed' for judgment establishing its debt against the estate of W. H. Douglas, deceased; also to subject and to establish and foreclose a statutory lien under article 3314, Revised Statutes 1925, on the lands described in the gift deeds in satisfaction and payment of its indebtedness in accordance with law; and also for judgment directing sale of the lands in suit, under execution issued on its judgment of November 16, 1926, with writ of possession to purchaser thereunder. The Douglases above named were made parties defendant and answered jointly; the minors being represented by an attorney ad litem. Their following general exceptions to appellant’s petition were sustained by the trial court, and the cause dismissed upon appellant’s refusal to amend:

“ ‘(1) To that portion of said petition which seeks to establish a debt owed by W. H. Douglas, deceased, for the reason that said petition shows that said debt has been established by a court of competent jurisdiction, and the only court of competent jurisdiction, and is therefore res adjudicata.
“ ‘(2) To that portion of plaintiff’s petition seeking to establish a lien against said property defendants say that said petition shows on its face that, if the plaintiff has ever had any cause of action, same has long since been barred by the three, four, and five year statutes of limitations, all of which are here specially pleaded.’ ”

On appeal, the Court of Civil Appeals correctly held that the district court did not err in sustaining the first exception. The Court of Civil Appeals reversed the judgment of the district court for error in sustaining the second exception, and remanded the cause. 7 S.W.(2d) 148.

There can. be no doubt of, the right of a creditor of an estate to enforce a specific lien on land which a deceased debtor has conveyed by a deed void for fraud’ as to such creditor, as against the fraudulent vendee and the administrator and heirs to the debt- or’s estate. While title passes to the vendee in the fraudulent conveyance, as against the debtor and his estate, and such vendee would receive any excess in the value of the property c'onveyed over the debts chargeable against same, nevertheless, as to the defrauded creditor, the conveyance is void, and is denied any effect as prejudicing the lien of the creditor. The creditor’s bill ought to show th.e debts for which the property is liable to be sold, and ought to bring before the court all interested parties. Arbuckle Bros. Coffee Co. v. Werner & Cohen, 77 Tex. 44, 13 S. W. 963; Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815; Turner, Adm’r v. Wallace, 99 Tex. 543, 92 S. W. 31; Blinn v. McDonald, 92 Tex. 605, 46 S. W. 787, 48 S. W. 571, 50 S. W. 931.

Substantially the same questions of law as are presented on this writ of error, with regard to limitations, were determined in an opinion of this court filed to-day in cause No. ■5482, styled Max Eckert v. Lorenz Wendel et al., 40 S.W.(2d) 796.

Applying the law as announced in that opinion, since it did not appear from the aver ments of defendant in error’s petition that its suit was barred by any statute of limitations, which would defeat the enforcement of its creditor’s lien, there was error in the action of the trial court in sustaining the second exception and in dismissing the suit, and for that reason the Court of Civil Appeals rightly reversed the judgment of the trial court and remanded the cause for a new trial.

It is therefore ordered that the judgment of the trial court be reversed and that of the Court of Civil Appeals be affirmed, and this cause is remanded to the district court for further proceedings in accordance with this opinion.