author: SHARP, J. CURETO-N, C. J.

text:
    INTERNATIONAL-GREAT NORTHERN R. CO. v. ICING.
    No. 1481-5738.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      Andrews, Streetman, Logue & Mobley and Wolters, Blanchard, Woodul & Pressler, all of Houston, for plaintiff in error.
    Fulbright, Crooker & Freeman, T. H. Cody, and John H. Crooker, all of Houston, for defendant in error.
   SHARP, J.

Joseph King instituted this suit in the district court of Harris county against the International-Great Northern Railroad Company for damages sustained by reason of the negligence of the railroad company while in its employment, and recovered a judgment in the sum of $38,500. An appeal was made to the Court of Civil Appeals at Galveston by the International-Great Northern Railroad Company. By a majority opinion of the members of that court, it was held that there was no evidence to support the award of $2,000, and the court reversed and rendered in favor of the International-Great Northern Railroad Company as to the item of $2,000, and affirmed the sum of $36,500 in favor of King. Chief Justice Pleasants dissented. For brevity, we refer to the opinion rendered by the majority members of the Court of Civil Appeals for a more detailed statement of the facts involved in this case. 27 S.W.(2d) 357.

The International.-Great Northern Railroad Company applied to the Supreme Court for writ of error which was granted to review the opinion rendered by the majority members of that court.

Plaintiff in error contends that the Court of Civil Appeals erred in holding that the submission by the trial court of special issue No. 16, relating to damages, did not constitute reversible error, and in not holding that the submission of such issue in the form and manner submitted was reversible error, for the reason that such special issue authorized and required of the jury a finding of double damages from the railroad company, and also was calculated to confuse the jury.

Special issue No. 16, submitted to the jury, reads as follows:

“What sum of money, if paid in cash now, will fairly compensate the plaintiff, Joseph King, for injuries, if any, alleged and proven to have been received by him on the occasion in question, taking into consideration exclusively the following elements of damage, if proven to be a proximate result of said injuries, and none other:
“(a) Bodily injuries, if any, physical pain and suffering, if any, and bodily inconvenience suffered by him, if any, from February 22, 1928, down to the date of this trial, and such as you may find he will reasonably and probably suffer in the future, if any.
“(b) Mental anguish suffered by him, if any, from February 22, 1928, down to the date of this trial, and such as you may find he will reasonably suffer in the future, if any.
“(c) The reasonable value of his decreased earning capacity from February 22, 1928, down to the date of this trial, if any.
“(d) The reasonable present value of his diminished capacity to perform labor and services in the future beyond this trial, if any.
“(e) The present value of the services of physicians, nurses, attendants, or other similar help to attend him and to treat him, if any, as you may find to be reasonable and necessary in the future beyond this trial by reason of such injuries.
“You will, answer each of the above items of damage separately, as you may find the facts to be.”

To the foregoing questions, the jury answered each one separately, as they were instructed to do, as follows: (a) For bodily and physical injuries, $20,000; (b) for mental anguish, $2,000; (e) for lost time from his injuries down to the.trial, $2,500; (d) as the reasonable present value of his diminished earning capacity in the future, beyond the trial, $12,000; and (e) for services of physicians, nurses, attendants, etc., to attend and treat him, $2,000.

Counsel for the International-Great Northern Railroad Company urged objections to the submission by the trial court of the foregoing issue on the grounds that it would permit a double recovery, and that it would tend to confuse the jury in reaching a verdict.

It is a fundamental rule that, where a person or corporation has wrongfully or negligently done an act which in its consequences is injurious to another, he may be held for full compensation caused by his conduct. 13 Tex. Jur., p. 69; 17 C. J. 750.

It is also a cardinal rule that the court should give the jury definite instruct-ions as to the- correct measure of damages applicable to tbe issues raised- by tbe pleadings and evidence in every particular , case, and it is tbe duty of tbe jury to be governed thereby. 13 Tex. Jur., pp. 429 and 430.

The rule is well recognized in tbis state that it is improper to authorize a.jury to assess double damages for the same loss or injury, and an issue or instruction is erroneous if it authorizes or permits á double recovery. 13 Tex. Jur. p. 442; International & G. N. R. R. v. Butcher, 98 Tex. 462, 84 S. W. 1052; Missouri, K. & T. v. Hannig, 91 Tex. 347, 43 S. W. 508; Texas Cent. Ry. Co. v. Brock, 88 Tex. 310, 31 S. W. 500.

It is equally well settled that if an issue or instruction submitted is calculated to confuse and mislead the-jury into assessing double damages by inducing them to consider separately things which properly constitute but one' element of recovery, it is erroneous. 13 Tex. Jur., pp. 442 and 443. See authorities cited in the notes.

Let us test the facts of this case in the light of the foregoing rules. Special issue No. 16 submitted to the jury five separate distinct elements-for recovery, and the trial judge required of the jury that they answer each of the five items of damages separately. This the jury did, and found in answer to item (a) the sum of $20,000; in answer to item (b) the sum of $2,000; in answer to item (c) the sum of $2,500; in answer to item (d) $12,000; and in answer to item (e) the sum of $2,000, making a total of $38,500.

The following authorities sustain the contention that special issue No. 16 permitted a double recovery, or that it was calculated to confuse and mislead the jury. International & G. N. Ry. Co. v. Butcher, 98 Tex. 462, 84 S. W. 1052, 1053; Missouri, K. & T. Ry. Co. v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. 891, 892; Stamford Oil Co. v. Barnes, 55 Tex. Civ. App. 420, 119 S. W. 872; Texas & N. O. Ry. Co. v. McCraw, 43 Tex. Civ. App. 247, 95 S. W. 82.

In the case of International & G. N. Ry. Co. v. Butcher, supra, the Supreme Court held, in effect, that where in an action for injuries the court charged that the jury should assess compensatory damages for physical and mental suffering endured, and which plaintiff would likely endure in the future, for the probable effect, if any, of the alleged injuries in the future on his health, and for any impairment of his ability to pursue, after he was twenty-one - years of age, the course of life he might have done but for his injuries, if any, and for. his probable decreased mental and physical capacity to labor after he became of age, such instructions were erroneous, as permitting the jury to assess double damages for the same element. Quoting from the opinion of Judge Brown in that case, he says:

“Error is assigned upon the - above paragraph of the court’s charge, with this proposition: ‘It was error to instruct the jury as shown, because the same was calculated to confuse and mislead the jury into assessing double damages, and more damages than the law allows, and assessing damages more than once for the same thing.’
“The charge submits the following four groups of facts, upon each of which the jury is directed to find damages in plaintiff’s favor: First. Physical and mental suffering, past and future. -Second. The future effect of the injuries upon Butcher’s mental and physical health. Third. For any impairment of his ability or capacity to pursue, after he arrives at his. majority, the course of life he might otherwise have followed. -Fourth. For decreased physical and mental ability to labor and earn money.
“The injuries which would produce a future ■effect upon his physical or mental health would necessarily cause the impairment of his ability or capacity to pursue a calling that he otherwise could have pursued, and such physical and mental impairment as would have the effect in the future to prevent Butcher from pursuing any vocation that he might have chosen would decrease his ability to labor and earn money. The elements of the last three propositions are so blended in their effects upon the sufferer that they are not capable of separation so as to admit of distinct compensation. The decreased capacity to labor and earn money would necessarily be a result of the impairment of physical and mental health, and would be embraced in the incapacity to follow the calling he might otherwise have chosen. Incapacity to earn money could result from nothing except physical or mental injury, and would be embraced in incapacity to pursue any desirable vocation.”

The case of Missouri, K. & T. Ry. Co. v. Nesbit, supra, in effect, held that the charge, in an action for personal injuries that in case of a finding for plaintiff the jury may consider the physical or mental suffering he has suffered or may suffer, does not assume that plaintiff will inevitably have future physical suffering from injury, and furthermore held in effect that inability to pursue the course in life which plaintiff might have pursued, but for his injuries, falls within the category of diminished capacity to labor and earn money, so that an instruction authorizing damages for both allows the giving of double damages. The trial court, in that case, gave the following instruction to the jury: “lou. are instructed that in the event you find in favor of -the plaintiff in estimating the actual compensatory damages to which he is entitled, you may take into consideration, and award him such a sum of money as will fairly compensate him for, the physical and mental suffering which he has suffered, or may suffer in the future, and the diminished capacity, if any, to earn money and pursue the course of life which he might otherwise have done after he shall have arrived at the age of 21 years. You must not allow him anything for diminished earning capacity during the period of' his minority, for that would belong to his father, if to any one, 'awarding him as a whole only such a sum of money as the present cash value of which would be actual compensation for the injuries, if any, sustained.”

Judge Gill, in rendering the opinion for the court, after reviewing the case of International & G. N. Railway Co. v. Butcher, supra, said: “That it is not an accurate instruction on the measure of damages we have no doubt.”.

The case of Texas & N. O. Ry. Co. v. McCraw, 43 Tex. Civ. App. 247, 95 S. W. page 82, 85, involved, among other things, the following charge: “If you determine that plaintiff was injured substantially as alleged by him, and if you find for the plaintiff, then you may consider the nature, extent, and duration of such injury, and whether or not plaintiff has suffered physical or mental pain, and whether or not he will hereafter so suffer, as a result of such injuries; and you may also consider whether or not plaintiff’s earning capacity, after he reaches the age of 21 years, will he diminished by reason of such injuries and you may consider whether or not such injuries will result in inconvenience or risk to plaintiff’s general health or life, and, having considered these matters, you will render your verdict for such a sum of money as in your conscientious judgment will fairly compensate plaintiff for such injuries.”

Chief Justice James, in discussing the effect of the foregoing charge in the light of the rule announced by the Supreme Court, says: “The rule applied by the Supreme Court in the Butcher and Nesbit Cases is understood to he that a charge is defective, not necessarily because it suggests to .the jury the various subjects or elements of damages they may consider, but where it mentions the subjects in such a way and in such a connection as is calculated to lead them to treat items that enter into the same subject as separate and distinct elements of damage. There could be no objection to a charge which authorizes recovery for physical suffering, which in the same connection properly presents and explains the different matters which would come under that head for consideration. So, also, with mental suffering or diminished earning capacity. But when these matters are presented in such a way as to appear to treat them as distinct and independent items 'of damage, the charge is objectionable. As said in a Kentucky case (Railway v. Nelson, 89 S. W. 202), the court passing upon a charge: ‘It directed the jury, in estimating plaintiff’s damages, to segregate such of his injuries as ought to have been considered and estimated under the heads of'physical and mental suffering and the permanent impairment of his ability to earn money into -special items of damage, and allowed them to estimate the damages for each item, as distinguished from the others and from the damages on account of physical and mental suffering or permanent disability.”

Based upon the rule announced by the Supreme Court in the Butcher Case and followed by other courts of this state, special issue No. 16 is incorrect in the following particulars: Both “bodily injuries” and “bodily inconvenience” suffered by plaintiff should not have been 'submitted, because “bodily injuries” necessarily includes “bodily inconvenience.” The court submitted subdivision (a) of issue 16 independent of subdivisions (c) and (d) and authorized a recovery on item (a) separate and distinct of items (c) and (d), which in the form submitted authorized the jury to make a finding permitting plaintiff a double recovery. If' the injuries received by plaintiff from his “bodily injuries” or “bodily inconvenience” suffered by him affected him before the trial and would reasonably and probably affect him after the trial and in the future, that would necessarily include the decreased earning capacity either before or after the trial and in the future, and items (a), (c), and (d) in the language of the Supreme Court “are so blended in their effects upon the sufferer that they are not capable of separation so as to admit of distinct compensation.”

Furthermore, the items submitted separately, as was done, undoubtedly was calculated to confuse and mislead the jury and cause them to render different sums than they would have rendered if only one item was to be answered. This record conclusively proves this conclusion. The jury found in answer to item (e) the sum of $2,000, and the Court of Civil Appeals reversed and rendered judgment as to this item on the ground that it was not supported by any evidence.

In answer to item (c) the jury found the sum of $2,500 in favor of plaintiff for lost time from the date of his injuries down to the trial. The record shows that it was thirteen months from the time plaintiff was injured to- the trial; that he averaged less than $1,-400 per year in earnings; that in about three months after receiving the injury he did some work and took a show out on the road. It is further shown that he was quite active with the show, going from place to'place with it, yet the jury, in the face of this testimony, found that he was entitled to the sum of $2,-500 for the reasonable value of his decreased earning -capacity from the date of his injuries to the date of the trial; a period’ of thirteen months. The Court "of Civil Appeals did not disturb the finding of the jury to item (c), while intimating that it was large and exees-sive, yet refrained from doing so on the ground that there was some evidence to sustain the finding.

The-issue submitted was erroneous in that it' permitted the jury to make answers to each item submitted, which permitted plaintiff to recover double damages. It was a positive erroneous issue in that it was clearly misleading and confusing to the jury by inducing them to consider separately items which properly constituted but one element of recovery.

Eor the reasons herein stated, we recommend that the judgment of the trial court and the judgment of the Court of Civil Appeals be reversed, and that this cause be remanded to ,the district court for another trial in accordance with this opinion.

CURETO-N, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


source: Caselaw Access Project

author: CRITZ, J. CURETON, C. J.

license: Public Domain

text:
    BURTON et al. v. McGUIRE et al.
    No. 1168-5146.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      Dies, Stephenson & Dies, of Orange, and Howth, Adams & Hart, of Beaumont, for plaintiffs in error.
    A. J. Schnitzel, Holland & Holland, George E. Holland, and Monroe Chapman, all of Orange, W. W. Cruse, of Beaumont, Hollis M. Kinard, of Orange, C. A. Toler, of Beaumont, Adams & Bruce, of Orange, T. L. Foster, J. W. Timmins, and Joiner Cartwright, all of Dallas, and Ben H. Powell and Woodward, Hart, Gay & Hard, all of Austin, for defendants in error.
   CRITZ, J.

As shown by the opinion of the Court of Civil Appeals, the record in this case & unusually large, even for this court. The application for the writ of error contains about 283 full legal sized typewritten pages; the brief of appellant filed in the Court of Civil Appeals contains 577 pages; the brief of the Sun Oil Company, which is printed, contains 227 pages; the statement of facts contains about 550 pages; the transcript about 350 pages; there are about 85 plaintiffs in error, and about 50 defendants in error. We mention the above matters, as did the Court of Civil Appeals, to show the tremendous task presented to this court by this appeal, and to demonstrate that it is utterly out of the question for this court to discuss all of the many assignments presented in the application.

On final presentation of the case in the Supreme Court, the parties have each filed supplemental briefs and arguments presenting in more condensed form their several contentions, and have thus greatly aided us in digesting this record. In this opinion, we are generally confining ourselves to the issues presented and discussed in these supplemental briefs and arguments.

This suit was tried in the district court of Orange county, Tex., by the plaintiffs in error, Burton et al., against defendants in error, McGuire et al., in the form of trespass to try title. The land involved consists of 180 acres on the Bradley Garner survey, 320 acres, more or less, on the Aaron Nelson survey, and an undivided interest in the Sarah M. Luce survey and the Bradley Garner survey. Trial in the district court before a jury on special issues resulted in a verdict and judgment for all the defendants. On appeal, this judgment was affirmed by the Court of Civil Appeals at Beaumont in an exhaustive and well-considered opinion by Judge Walker. 3 S.W.(2d) 576. The case is'in the Supreme Court on writ of error granted on application of Burton et al.

The Court of Civil Appeals has made a very excellent and comprehensive statement of the nature and result of this case. In the interest of brevity, we refer to and adopt the statement of that court. We, however, will make such further statements in the course of this opinion'as are necessary to demonstrate the matters discussed. However, the immensity of this record and the numerous issues raised make it well-nigh impossible to make a complete statement of all of the issues involved.

As we gather from this record, the plaintiffs in the district court, also plaintiffs in error here, may be divided into three general groups, viz.: The Walea heirs, the Smith heirs, and Mattie E. Wingate.

The Walea heirs are seeking to recover 180 acres of land off the south end of the Garner survey, and 320 acres, more or less,, off the north end of the Nelson survey. The Walea heirs assert no title to the Luce survey except where it is contended the two surveys conflict.

The Smith heirs claim 60 acres of land on the Nelson survey. Also they, along with the Walea heirs, claim a 30-acre tract and a 43-acre tract on the Walter. The jury found against'the claim of .the Smith heirs to the 60 acres on the defendants’ pleas of limitation, and this verdict is amply supported by the evidence. We refer to and approve the holding of the Gourt of Civil Appeals as to this issue, and shall not again refer to it.

Mattie E. Wingate, one of the plaintiffs in error, is seeking to recover an undivided one-third interest in the Luce survey, and an undivided interest in the Garner survey. This claim is based upon the fact that Mrs. Agnes B. Wingate' died seized and possessed of the entire Luce survey except 150 acres. She also owned at the time of her death an undivided one-third interest in a tract of about 513 acres on the Garner survey. Mattie E. Wingate, surviving daughter, seeks to recover a one-third interest in each of these tracts, which were sold through guardianship proceedings.

The defendants in error hold the lands in question, disregarding the issues of conflicts and overlapping surveys, under chains of title originating in the defendants in error and their privies. As links in these chains appear certain court proceedings and judgments which are necessary to connect the chains. Plaintiffs in error seek to break these chains by attacking these judgments and proceedings. If such attacks are successful, the chains are broken, and, in the absence of limitation, the titles are left in certain. of the plaintiffs in error. We pause here to remark that all of these attacks are collateral.

We shall first discuss and dispose of the attacks made by the plaintiffs in error, who are. grouped under the general name of Walea heirs. „

Plaintiffs in error attack a certain judgment of partition entered by the district court of Orange county, Tex., on December 12, 1872, purporting to partition the estate of James and Louisa Walea, deceased husband and wife, among their heirs. It is contended that this judgment is void and subject to collateral attack: (a) Because the record in the present case shows conclusively that it was entered by the district court in a guardianship proceeding involving the mi-, nor heirs of James and Louisa Walea, deceased, along with other heirs not minors, or parties to the proceeding, over whom the court had no jurisdiction; (b) because the description of the several tracts awarded to the several parties are so indefinite as to be insufficient in law to identify the lands attempted to be partitioned.

We shall discuss the two contentions in the order stated.

In our opinion, the record in this case will not sustain the contentions that the judgment was entered in a guardianship proceeding. It is true that the caption to the decree in question, as shown by a bill of exception, contains the following clause:

“In the District Court of Orange County, Texas, December Term, A. D. 1872, Hon. Wm. Chambers, judge thereof presiding guardianship of the minor heirs of James and Louisa Walea, Dee’d.”

As we view this record, the only evidence contained therein which tends in any manner to support the contention that the district court was attempting to make a partition in a guardianship proceeding is the clause above quoted. This clause appears in the caption of the judgment, as shown by one of the bills of exception. We also here pause to remark that it is admitted by both parties that the district court, under the Constitution of 1869 (article 5, § 7), has probate jurisdiction, but of course in a guardianship proceeding it could not exercise jurisdiction over persons not minors, and therefore not parties to the proceeding. Glassgow v. McKinnon, 79 Tex. 116, 14 S. W. 1050.

We think that when we consider the entire record in this case in the light of the rule that all reasonable presumptions should be indulged in favor of the validity of the judgment, it becomes reasonably clear and certain that the above judgment was not entered in a guardianship proceeding. The use of the word guardianship in the caption to the above judgment is an indication, standing alone, that the judgment was entered in a- guardianship proceeding, but to rebut this indication is the undisputed fact that there was once pending in the probate court of that county both a guardianship proceeding and an administration proceeding. It is shown that the administration proceeding reached the district court, but there is absolutely no showing that the guardianship ever came into the district court at all. The Court of Civil Appeals finds that the judgment was not entered in a guardianship proceeding, and we think that, taking into consideration the presumption in favor of the validity of a judgment, they were fully’ justified in this conclusion. We therefore overrule the assignments attacking the judgment on the ground that it was entered in a guardianship' proceeding.

In this connection, we also call attention to' the fact that the decree as contained in the statement of facts, which was agreed to by all parties, does not contain the above-quoted words, and, in view of the rule that the statement of facts when agreed to takes precedence over -the bill, we conclude that there is no evidence in the record to show that the decree was entered in a guardianship pro-ceecling. Texas Jurisprudence Yol.- 3, § 564, and- authorities there cited.

As to the contention that the partition judgment does not sufficiently describe the several portions or tracts into which it was divided, the record shows that the 480-acre tract therein mentioned was divided in the following manner;

“‘1. We give and divide to Elenora Young, wife of Francis Young, 60 acres of land off the B. Garner Survey and the North end of said survey belonging to said estate of 180 acres.
“ ‘2. We give to James Walea, one of said heirs, 60 acres South of and adjoining the land given and divided to Elenora Young.’
“The division so continued through the 480 acres, giving to each of the eight heirs 60 acres.”

The division so continued through the 480-acre tract giving to each of the eight children 60 acres of land. Under this decree, the first child could take the first 60 acres on the north with the south line of her 60 acres parallel with the north line of the 480-acre tract, and the division would so continue throughout the partition. But be this as it may, the record showá that the eight children had no difficulty among themselves in identifying his or her particular tract. Each entered into possession of a 60-acre tract and sold the same.

Furthermore, it is conclusively shown by this record that all of the eight parties who received allotments of land under such judgment acquiesced therein, and accepted the parts allotted to them under the judgment, went into actual possession thereof, and made conveyance to other parties, with covenants of warranty. Such acceptance would constitute an agreed partition even if the judgment were invalid. Delk v. Punchard, 64 Tex. 364.

Plaintiffs in error contend that the record shows that James and Louisa Walea had ten children by their own marriage, and that James Walea had one child by a former marriage, and that the 480-aere.tract was attempted to be partitioned among only eight of the children without making the two children of such common ancestors, and the one child of the former marriage of James Walea, parties to such partition proceeding. In this connection, it is contended that it being shown that said three children who were left out of the partition died after such partition decree, the plaintiffs, who are the heirs of the three deceased children, are entitled to a judgment for the interest of such children.

In connection with the above, it is shown by the record that at the time James and Louisa Walea died they left surviving them ten children, the product of their joint marriage. Eight of these children were the parties who received the allotments of land in the decree under discussion.' Two of these children, Belonie Walea and Elijah Walea, products of the joint marriage received nothing. Also Angelina Walea, the product of James Walea’s first marriage, received nothing.

The Court of Civil Appeals disposed of the issues here made by holding that the partition proceeding was made in the administration of the estate of James and Louisa Walea, deceased. Angelina Walea was certainly then dead. Also, she, died subsequent to her husband.

We have already discussed the matter with reference to the condition of the record, as showing that the partition took place in an administration proceeding. No good purpose would be served by further discussion of that question here. We, however, here refer to and adopt the findings and conclusions of the Court of Civil Appeals as to this question. If the partition took place in an administration proceeding, it will be presumed in favor of the judgment that all necessary parties were made prior to the entry of the judgment. In fact, as we understand the plaintiffs in error, they only contend that such judgment is void on the ground that it \yas entered in a guardianship proceeding.

With reference to the two children of the second marriage, Belonie and Elijah Walea, the Court of Civil Appeals also finds that they were dead at the time the partition judgment was rendered. We think this finding fully justified by the record.

The record shows that in 1859, about two months after the deaths of James and Louisa Walea, application was made to the probate court reciting such deaths, and reciting the fact that such deceased parties had left a number of minor children, and praying to be appointed guardian of their persons and estates. By order entered January 30, 1860, Lastis Vincent was appointed guardian of eight minor children. This order named both Elijah and Belonie Walea as two of the minors. It is also undisputed that in addition to the eight children just named there were two other surviving children, Elenora and Olepan. The conclusion adduced by the facts just stated and not disputed by any other fact in the record is that the two last-named heirs were not minors. After • his appointment, the above-named guardian continued as the guardian of the persons and estates of the eight children mentioned until 1871. The guardian then made a report, duly sworn to, in which he makes known to the court, under oath, that as guardian he has received certain properties and disbursed certain moneys, leaving in his hands the lands before mentioned to be distributed among the surviving heirs of said estate. He then names the eight heirs shown in the above decree and states that they are all the heirs. From the foregoing, it will he observed that Vincent tvas appointed guardian of eight of the Walea children in 1860. and in 1871 he reported, under oath, that the persons who were entitled to receive the Walea estate then in his hands were eight. This report does not include the names of Elijah and Belonie. It will also be noted that this guardian showed a detailed acquaintance with the Walea heirs who were living at the time he made his final report, and if Belonie and Elijah were living it is hard to conceive that he would have left them out of this report. This report was made at a time when the matters and things therein concerned were current and transpiring, and should be given greater weight than the manifestly imperfect memory of human witnesses who are testifying to events half a century old.

When we come to consider the testimony on this question, as shown by the record, we find that it is contended that these two children died very shortly after the judgment of partition was rendered, but the witnesses who testify to such effect do so from memory, and, when we consider their evidence as a whole, it is so uncertain and indefinite that in law it should not be allowed to overturn the solemn decree of a court, which is presumed to have ascertained the facts; especially when such judgment is supported by-the other evidence above mentioned. In other words, it will be presumed that the court made inquiry to ascertain if it had before it all of the heirs of James and Louisa Walea, and such presumption should not be overturned by the vague and indefinite evidence set out in this record. Not a sin.gle witness giyes any definite date as to the death of either of these children, and, at best, it is contended by the plaintiffs in error that they died only a few months after the judgment was entered.

In connection with the above, we do not wish to be understood as holding that this judgment is subject to collateral attack on the grounds urged. We do not pass on that question, as it is not necessary. What we hold is that, if the right be conceded, there are no probative facts to rebut the presumption in favor of the judgment.

The record in this case discloses that Mattie E. Wingate, one of the plaintiffs in error, was the owner o,f a one-third interest in a tract of about 529 acres on the Luce survey, and also owned a one-third interest in 185 acres undivided on the Garner survey. The land on the Garner survey was sold by M. A. Watson purporting to act as guardian for Mattie E. Wingate, and the land on the Luce survey was sold by Illa Mae Wingate, also purporting to act as Mattie E. Wingate’s guardian. We here pause to remark that Illa Mae Wingate became guardian after M. A. Watson had resigned. The deeds above mentioned form links in the chains of title of the defendants in error to the lands conveyed. Plaintiffs in error attack such deeds and the probate proceedings connected therewith on several grounds, which we shall now discuss.

It is contended that both of the above deeds are void because neither the order appointing Illa Mae Wingate temporary guardian, nor the order making the appointment of M. A. Watson’s guardianship permanent were ever carried to the probate minutes of the county court of Orange county, Tex. These contentions must be overruled. The failure of the clerk to carry the order appointing Illa Mae Wingate temporary guardian into the minutes after same had been duly entered in the probate docket, was at most, a mere irregularity, and did not invalidate the appointment of the guardian, nor did it render the deed made by her void. Also, the same rule applies to the failure of the clerk to carry the order making M. A. Watson’s appointment as temporary guardian permanent to the probate minutes. Hannon v. Henson (Tex. Com. App.) 15 S.W.(2d) 579.

In the case just above cited, it was shown that the order appointing the guardian was duly entered on the probate docket, but was not carried to the probate minutes. In passing on the validity of such an order, Section B of the Commission, in a well considered opinion by Judge Short, held that the entry on the docket was a sufficient compliance with the statute, and that the failure to carry such order to the minutes did not invalidate the appointment. In that case, Judge Short exhaustively reviewed the statutes and undoubtedly reached a correct conclusion.

Article 4092, R. C. S. 1911, in force at the time, provided:

“The order of the court in making such appointment shall state that unless the same is contested at the next regular term of the court, after service of citation, "the same shall be made permanent.”

The same statute is carried into the codification of 1925 as article 4135, except where the statute of 1911 uses the words “after service of -citation” the 1925 statute uses the words “after notice.” The two statutes, however, mean the same thing.

Plaintiff in error contends that since neither the order appointing M. A. Watson temporary guardian, nor the order appointing Illa Mae Wingate temporary guardian contain the words or the substance of the words provided by article 4092, supra, such orders were and are void.

We think the failure of the court to incorporate such words in the order a mere irregularity, and, since there is absolutely no showing that any injury resulted, such failure will, not invalidate such orders. Furthermore, this is a collateral attack, and the orders are certainly good as against such an attack.

Plaintiffs in error contend that the order appointing Mattie E. Wingate’s guardian was, and is, void because it was made in vacation, and was never thereafter made permanent by any order of the court entered in term time. This contention is utterly untenable. The statute expressly authorizes the appointment of a temporary guardian in vacation. When we come to consider articles 4091 and 4092, 1911 codification, in connection with other articles of the same chapter, it is clearly evident that the statute does not intend to require the court, after he has appointed a temporary guardian, either in vacation or in term time, to enter an order making such appointment permanent. In this connection, we think it is contemplated that if the appointment is not contested it shall become permanent by operation of law. It is true that article 4092 provides “shall be made permanent,” but, when we read this article in the light of the other articles of the same chapter, it becomes evident that no additional order is required. The very next article, 4093, provides in detail what shall be done in ease the appointment is contested. This article expressly provides that the temporary guardian shall continue to act during the pendency of the contest, if any, and then provides that, in case the appointment be set aside, the court shall require of the person appointed.certain exhibits and reports. When article 4093 is considered as a whole, it is clear that it contemplates that the person whose appointment is being contested remains guardian until he is removed. Finally, when we come to examine the provisions of article 4095 all doubt is removed. That article defines the notice which shall be issued by the clerk, and this notice expresslqy provides :

“ * * * And, that, if such appointment is not contested at the term of court so named in the citation, then the same shall become permanent.” (Italics ours.)

It will here be noted that article 4095 expressly states that the appointment will become permanent.

We therefore hold that where an order has been entered appointing a temporary guardian, as provided by our statutes, it is not necessary for the court to thereafter enter an order making such appointment permanent. Of course, we do not intend to hold that if the court should see fit to enter such an order same would be illegal; in fact, we think it would be the better practice to do so.

In Gann v. Kern, 249 S. W. 878, 880 (Tex. Civ. App. Writ Ref.) the Court of Civil Appeals for the Third district at Austin, in a well-considered opinion by Judge Key, considered the question here discussed, and held that no order making a temporary guardianship permanent was intended or required. We quote and adopt the following from the opinion in that case.

“We do not sanction appellants’ contention that, if the county court failed to make an order appointing Mr. Gann permanent guardian, the bond previously given when he was appointed temporary guardian became func-tus officio, and the signers thereof ceased to be liable upon it. On the contrary, inasmuch as the guardian obtained possession of his wards’ property by reason of the execution of that bond, we think the principal and sureties thereon should be held liable, unless it was shown that the probate court, by reason of the fact that the guardian’s right to remain in that position had been successfully contested, had made an order discharging the makers of that bond. This was not done. We think the legislative intention that the appointment of a temporary guardian shall become permanent by the failure of any one to contest that appointment at the next term of the court is sufficiently indicated, if not made manifest, by the last clause in article 4095, which reads, ‘and, that, if such appointment is not contested at the term of court so named in the citation, then the same shall become permanent.’

“It will be noted that the statute does not require the court, where no contest is filed, to reappoint the temporary guardian, and, in view of that fact and the provision of the statute just quoted, it seems to us that tne courts should hold that a temporary guardianship becomes permanent when no contest is filed, and that the original bond remains in force. Not to so hold would give designing persons opportunities to get possession of the estates of minors, and if no contest was filed, to hold and exploit same after the succeeding term of court, without any bond to secure the rights of the wards.”

It is contended that the order appointing Ilia Mae Wingate- was void because it attempted to appoint her for a period of six months only. We think this contention should be overruled. It is true that the application prayed for her appointment as guardian for six months, and the order appointing her stated that the application for letters of guardianship was presented and granted as prayed for. This order then fixes the amount of the bond and authorizes the guardian to take charge of the estate. We think when the order is considered in the light of the statute it is nothing more and nothing less than an order appointing a temporary guardian, as contemplated by the statutes under discussion.

It is contended by the plaintiffs in error that the descriptions contained in the two guardianship deeds above discussed are fatally defective. We have carefully examined the record with reference to this matter, and think the descriptions, when considered in the light of the entire record, are sufficient. We here refer to Judge Walker’s opinion in. the Court of Civil Appeals touching this matter, and fully approve his holding thereon.

It is contended by the plaintiffs in error that the two sales above discussed are void because the orders of sale authorizing M. A. Watson and Illa Mae Wingate to sell the lands here being discussed did not require the guardian to give bond for twice the amount for which the land was sold, as required by article 4201, R. C. S. 1925, being the act of 1913, in force at the time. This contention should be overruled. Sloan v. Woods (Tex. Com. App.) 25 S.W.(2d) 309, 310.

We quote the following from Judge Harvey’s opinion in Sloan v. Woods:

“It is not thought that the mere fact that-an order for the sale fails to show on its face that the court required the guardian to give bond, as prescribed in article 4201, invalidates the sale made in pursuance of such order. The provision that the requirement be stated in the order is directory. The important thing which the statute requires is the giving of the bond, but, even so, the presumption arises from the decree confirming the sale that this requirement has been fulfilled. This presumption is conclusive as against a collateral attack on the validity of the sale. If, in reality, the court fails to require that the bond be given, and the guardian fails to give it, the sale is thereby rendered voidable but not void.”

In the foregoing portion of this opinion, we have attempted to discuss all attacks on the probate proceedings involved in this liti‘gation of sufficient importance to merit consideration. In concluding this portion of (¿he opinion, we wish to again call attention to the fact that all holdings we have made are in view of attacks made on the probate proceedings in question, .which are purely collateral.

Certain of the plaintiffs in error claim certain lands as a part of the Nelson survey which are located on the Luce and Walker surveys. These claims embrace a 43 and a 30-acre tract on the Walker, and certain other lands on the Luce. These claims are all based, on the theory that the Nelson survey meanders the edge of Cow bayou and not the edge of Cow bayou marsh. If the edge of the marsh is the line meant in the last call in the field notes of the Nelson, then all these assignments are destroyed. If the edge of the bayou itself is the line, then the Walker survey, which is junior to the Nelson, is wiped out, and as we gather from the record a large part, if not all, of the Luce survey, also junior to the Nelson, is wiped out.- The field motes' of the Nelson survey, as contained in the patent, are as follows:

“Beginning at a stake and mound on B. Garners South line from which a black jack bears East 32 varas marked X, a dogwood bears N. 55 deg. ⅛. 25 varas marked X.
“Thence East with Garners line 3700 varas to a stake and mound in prairie on S. Jetts West line.
“Thence South with Jetts line 2300 varas to a stake and mound on the edge of Cow Bayou marsh.
“Thence up said marsh, and bayou with the meanders 9745 varas to the place of beginning.”

We have carefully examined the testimony in regard to the above contentions and find that undoubtedly the Nelson follows the edge of the marsh, and not the edge of the bayou. This is almost conclusive from the third call itself, and when the call is considered in conjunction with the other evidence the conclusion is legally certain. The witness Daniell, the surveyor, and the only witness as to location, testified that he made a correct survey on the ground of the Luce. He testified that this survey was correct, accurate, and made on the ground. The field notes of the survey made by him were introduced in evidence and reflected his work. This survey on its face shows no conflict with the Nelson. It places the original southeast corner of the Luce in the west line of the Nelson. Under this survey, the field notes make the edge of the marsh its we'st boundary. The Nelson begins at a stake and mound on the south line of the Garner and runs east with the Garner south line 3,700 vrs. to mound on Jetts west line. Mr. Daniell testified that the beginning corner of the Nelson, which is the south line of the Garner, could never be reached with a closing call by following the bayou instead of the marsh. This testimony is not contradicted in the record. On the other hand, it is 'shown that if the marsh is followed the survey closes. It is true that the call for the Nelson is “thence up said' marsh and bayou,” but it is evident that the edge of the bayou and the edge of the marsh cannot both be followed. One or the other must be discarded. We think, however, there is no difficulty in harmonizing the call and ascertaining the meaning of the surveyor. The surveyor evidently had in mind to run with the marsh adjacent to the bayou, and he used the word “bayou” in the sense of designating and describing the marsh. This is fully sustained by the fact as above stated, that when this is done the Nelson survey lines will close, but if you attempt to follow the bayou they cannot be closed.

■ We have read and carefully considered all assignments presented by this appeal. We. have discussed all such assignments as in our opinion present matters of sufficient importance.

In our opinion, tlie two lower courts have entered correct judgments in this case, and the judgment of the Court of Civil Appeals, which affirms the judgment of the district court, should be affirmed, and we so recommend.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: MORROW, P. J.

text:
    G. G. McBRAYER, Appellant, v. STATE, Appellee.
    No. 14270.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Wm. J. R. King, of Dongview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the failure to support a minor child; penalty assessed at confinement in the county jail for a period of 75 days and a fine of $25.

The indictment charges a felony as defined by article 602, P. C. 1925, as amended by chapter 195, Acts of 41st Legislature (1929) Regular Session (Vernon’s Ann. P. C. art. 602). As the offense is defined by article 602, supra, it is a misdemeanor. The amendment attempts to make it a felony. It was recently decided by this court in Ex parte Bill Heartsill, 38 S.W.(2d) 803, that the amendment was void in failing to comply with the constitutional provision touching the caption of the bill as set forth in article 3, § 35, Const, of Texas. In the decision mentioned, article 602, supra, as it appears in the Penal Code 1925, was held not affected by the passage of chapter 195, supra. The offense being a misdemeanor, the trial would ordinarily be had in the county court, unless it came within one of the exceptions named in article's, § 16, and article 5, § 22, of the Constitution. Whether the facts bring the case within the jurisdiction of the district court is not disclosed by the record. However, it was treated as a felony, and the appellant was convicted of a felony, as defined by chapter 195, supra, which statute was .void in failing to comply with the constitutional provisions.

The judgment is reversed, and the cause remanded.


author: BUCK, J.

text:
    HUNTER v. GRANT.
    No. 12489.
    Court of Civil Appeals of Texas. Fort Worth.
    June 13, 1931.
    Rehearing Denied July 11, 1931.
    Taylor, Muse & Taylor, of Wichita Falls, and E. E. Fischer, of Tyler, for plaintiff in error.
    McDonald & Anderson, of Wichita Falls, for defendant in error.
   BUCK, J.

Alton V. Grant sued T. F. Hunter for a balance alleged to be due the plaintiff on a sale of certain leases by the plaintiff to ’defendant. Plaintiff alleged that .he sold the defendant a certain described 20 acres of land, situated in Cooke county, and the defendant agreed to pay him $1,500 in cash, and executed an obligation for $1,500, payable in 30 days, out of the first oil produced from said tract of land. That the defendant has paid on said total indebtedness the sum of $2,125, leaving a balance of $875 due and unpaid.

The defendant filed an answer, consisting of a general demurrer and a general denial, and further .pleaded that plaintiff on or about December 14, 1929, represented to defendant that he owned the oil and gas lease, situated in Cooke and Montague counties, upon 41 acres 'of land; that said 41 acres was the only acreage he was interested in in the immediate vicinity of said 41 acres; that plaintiff had contracted to drill a well upon said 41 acres and sought to negotiate with defendant, whereby defendant would furnish the money, or the greater part of the monqy, for the drilling of the well. That the plaintiff and defendant entered into a contract, part of which was in writing and part of which was verbal, whereby defendant in consideration of an undivided one-half interest in and to the original oil and gas lease affecting said 41 acres and of the services of plaintiff in procuring the oil and gas leases on 100 acres adjacent to said 41 acres and to the north, and that plaintiff, in negotiating the purchase of said 100 acres, agreed to act as defendant’s agent, without expense of any character to defendant, but to purchase said 100 acres at the net price paid to the owners thereof. That later, plaintiff represented to defendant that he had been in conference with each of the four owners of said acreage, to wit, H. D. Eields, Ralph Donnell, J. T. Crump, and J. D. Huey, and that the lowest price he could purchase said .land for was $4,500. That in fact plaintiff purchased said 100 acres for $3,600, and secretly and fraudulently retained for himself a commission and profit, contrary to the terms of his agreement, in the sum of $900. That the acts of omission and commission on the part of plaintiff, as stated above, was a fraud on the defendant, and the $900 obtained as a result thereof was fraudulently obtained, and defendant is entitled to judgment for its return and repayment.

The cause came on for trial before a jury, and the testimony of both parties was introduced, and both the plaintiff and defendant asked for peremptory .instruction. The defendant also asked, in case his peremptory instruction was not given, for the submission of certain issues, hereinafter to be noticed. The trial court granted plaintiff’s motion for peremptory instruction, and instructed the jury, to find for the plaintiff in the sum of $875, and against the defendant on his claim for credit for $875. Etom this judgment, the defendant has appealed.

Opinion.

While neither appellant nor appellee discusses the rule hereinafter noted, yet counsel for appellant spoke, in oral argument, of the facts that both parties had asked for a peremptory instruction. Therefore, we be lieve that we ought to discuss briefly the duty of the trial court in such a case.

In Manska v. San Benito Land Co., by the Iowa Supreme Court, 191 Iowa, 1284, 184 N. W. 345, 18 A. L. R. 1430, the question was discussed as to whether a request by both parties for a directed verdict constitutes a waiver of submission to the jury of the facts. The majority rule holds that it does, and the federal courts and the courts of Alabama, Arkansas, Colorado, Indiana, New York, and a number of other states so hold. The minority rule holds that a request for a directed verdict by both parties is not a waiver of submission of the ease to the jury, as held by the Supreme Court of Illinois, Iówa, Minnesota, New Jersey, Oklahoma, Tennessee, and Vermont. It is our opinion that the Texas decisions are all in line with the minority rule. In the case of Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007, 1008, Judge Brown, of the Texas Supreme Court, said: “The effect of the motion made by the defendants to instruct the jury to find for them has practically the same effect as a demurrer to the evidence in calling for the opinion of the court on the legal sufficiency of the proof, but it does not have the effect to withdraw the case from the jury. If a motion be overruled, the trial must proceed as if it had not been made; and the court cannot, because the motion has been overruled, instruct the jury to find for the plaintiff, upon the ground that the motion admitted the truth of the evidence adduced. * * ⅜ The difference between the demurrer to the evidence and the motion to instruct a verdict for the defendant is technical, it is true, but it is still a practical difference, in this: That the defendant does not choose to withdraw his case from the jury, and rely upon the testimony already introduced, but exercises his option of calling for the judgment of the court upon the strength of the plaintiff’s case, with the privilege, in case the decision is against him, of proceeding to develop his defense to the plaintiff’s action. Instead of moving the court to instruct the jury, the defendants might have presented a written instruction to that effect, and, it being refused, could have proceeded to introduce their testimony.”

The cases of Tiblier v. Perez, 277 S. W. 189, 190, and Jeffers v. Brewer, 266 S. W. 1110, both by the San Antonio Court of Civil Appeals, hold': “This, of course, must be treated on the part of each side as a waiver of the jury and an approval of the testimony by each party in their favor, thus electing to take the action of the court as final, and cannot be heard, either one of them, to complain of the court’s action resolving any issue against them.”

In Colvin v. Chadwick, 291 S. W. 639, this court, in an opinion by the writer, disagreed with the holding of the San Antonio court, and followed the minority rule.

In Morriss v. Knepper, 10 S.W.(2d) 1012, the El Paso Court of Civil Appeals, in an opinion by Judge Higgins, agreed with our holding in Colvin v. Chadwick, supra, in line with a number of other cases cited in that opinion.

In Long Bell Humber Co. v. Futch, 20 S.W. (2d) 1076, 1080, the Amarillo Court of Civil Appeals, after mentioning two cases of the San Antonio Court of Civil Appeals holding to the contrary, said: “Our views are in accord with those expressed in the cases of Citizens’ National Rank of Brownwood v. Texas Compress Co. (Tex. Civ. App.) 294 S. W. 331, writ of error refused; Colvin v. Chadwick et al. (Tex. Civ. App.) 291 S. W. 639; Miller-Vidor Lumber Co. v. Schreiber et al. (Tex. Civ. App.) 298 S. W. 154, writ of error refused.”

Therefore, we conclude that the submission of the peremptory instruction by both plaintiff and defendant did not preclude a trial by jury, if the facts adduced on the trial showed a conflict.

The trial court instructed a verdict for defendant in the following words: “In this case the court instructs the jury to return a verdict based upon the facts and the law as they appear to the court.”

The defendant requested four special issues as follows:

“1. Was the plaintiff, A. V. Grant, acting as the agent of the defendant, T. F. Hunter, at the time he procured and purchased the 100 acre lease from H. D. Fields, R. W. Donnell, J. T. Crump and J. L. Huey on the 12th day of December, 1929?
“2. Did the plaintiff, A. V. Grant, act in good faith, strict integrity and fair dealings with the defendant, T. F. Hunter, in. notifying him of the facts surrounding the purchase of said lease and especially the amount that he paid the owners for the same?
“3. Did the plaintiff agree with the defendant that he would procure the 100 acre lease from H-. D'. Fields, R. W. Donnell, J. T. Crump and J. L. Huey on the 12th day of December, 1929, and that the defendant, T. F. Hunter, was to have said lease for the net price paid for the same?
“4. Did the plaintiff, A. V. Grant, agree with the defendant, T. F. Hunter, that he would procure the 100 acre lease in question without any consideration or compensation to be paid to him for procuring the same?”

All of these special issues, so submitted by the defendant, were refused.

There is sufficient evidence to show that A. V. Grant was the agent and acting for defendant in the purchase of the 100 acres in question, and that Grant agreed that he would turn over the leases so secured at just the price paid the lessor, without a commission ■or anything paid to Grant as an inducement. There is evidence tending to show that Grant, acting as such agent of Hunter, told some of the lessors, at least, to charge $60 an acre. I-Ie had already secured a lease to 20 acres from the lessors, without paying anything for the same, and he divided the money paid by Hunter with said lessors. Plaintiff in his first supplemental original petition demurred to defendant’s answer, because it appeared therefrom that defendant was attempting to set up as a defense to plaintiff’s cause of action, -which was a liquidated demand, an un-liquidated and uncertain account. The trial court did not pass upon this demurrer, and is presumed to have overruled the same, and we doubt if the recovery which defendant sought to offset against plaintiff’s cause of action was an unliquidated demand, in that said amount was paid the plaintiff below in addition to what the other lessors received. There is evidence to show that Grant had the lease, theretofore given him by the owners of the leasehold estate, in escrow, and that hewas to receive a deed and assignment to said part of the leasehold estate when it appeared that the defendant below, or the plaintiff, or some one secured by him, was ready and willing to drill a well on the land. There is evidence to support the conclusion that Grant did not want Hunter to know that he had received any part of the purchase price, and he instructed one of the owners of the land to tear up and destroy the assignment in the bank in escrow for his benefit, and instructed them not to tell Hunter anything about this escrow agreement. Therefore, we conclude that the defendant had a right to have the jury pass on the good faith of Grant, and determine whether or not Grant had acted, in the purchase of the leases, fairly and justly towards Hunter.

The evidence further shows that Hunter was not in a position to tender back to the landowners the assignment which had been executed by them to him, and to demand the return of his money, in that Grant had conveyed the leases to a corporation, and had been paid therefor, in which corporation he was a half owner.

In 2 Corpus Juris, page 705, § 362, it is said: “As a general rule an agent must not, without his principal’s full knowledge and consent, purchase for himself property which he is employed to purchase for his principal. If he does so it is a breach of faith and he will be regarded as holding the property so purchased, although purchased in his own name, or its proceeds, for his principal, although he contributes his own funds to the purchase. * * * But the rule does not apply where the purchase is made in good faith after the agency has. been terminated, or where the agent has purchased for himself at a higher price after unsuccessful efforts to purchase for the principal at the price limited by the latter. Nor does it preclude the agent from purchasing property of the same class for himself at the same time that he is purchasing for his principal, where he does so with the principal’s full knowledge and consent, or where the agency is not exclusive.”

In section 361, the same authority says: “The distinction has been made that if an agent sells to his principal property which he bwned or had contracted for before becoming agent, and. the principal chooses to keep the property, he cannot compel the agent to refund the advance paid to him in excess of what the property cost him; but that if the agent acquires the property for the express purpose of selling it to his principal at an advance, the principal may retain the property and compel the agent to account for the excess, and that it is immaterial to plaintiff’s recovery in such case whether the agent contracted for the land before or after the principal agreed to purchase it.”

The evidence further showed that before this assignment was put up in escrow for Grant, Grant knew that Hunter would not drill the well unless he acquired a lease on the 100 acres adjacent to or surrounding the place where the well was being drilled.

We conclude that the trial court erred in instructing a verdict for plaintiff below, and in not permitting the jury to pass on the questions, the determination of which was involved in the issues sought by defendant to have submitted to the jury. We think the issues tendered involved facts about which there was a conflict in the testimony.

Eor the reasons stated, the judgment below is reversed, and the cause is remanded.


author: GRAVES, J.

text:
    GULF REFINING CO. v. LIPSCOMB et al.
    No. 9568.
    Court of Civil Appeals of Texas. Galveston.
    July 2, 1931.
    Rehearing Denied July 22, 1931.
    Geo. A. Byers, of Houston, for appellant.
    Baker, Botts, Andrews & Wharton and Tom M. Davis, all of Houston, for appellees.
   GRAVES, J.

This general statement, with only such slight interlineations as do not change the state of the record, is taken from the appel-lees’ brief as being in substance a correct reflection of the nature and disposition of the cause below:

“This suit on a sworn account, which in writing obligated the two Lipscombs to pay it in Harris County, was filed in the district court of Harris County, Texas, on the 27th day of March, 1930, by Gulf Refining Company against T. G.. Lipscomb, Mrs. P. -G. Lipscomb, 'partners, operating under the trade name of Lipscomb Motor Company with a branch business located at Groveton, Texas, known as the Groveton Motor Co., E. S. Roberts, L. P. Atmar, and the Groveton Motor Co., a corporation, all the defendants being residents of Trinity County, Texas,-the appellant alleging that the .three latter defendants, appellees herein, violated.the bulk-sales law in various ways on and after October 16, 1929.
“It does not appear from appellant’s pleadings that appellees are in any way liable to appellant on the sworn account, or of any other indebtedness whatsoever, unless alleged failure to comply with the bulk-sales law makes them liable thereon. Neither did appellant plead any facts which would constitute fraud on the part of appellees, nor any other cause of action against them other than the violation of the Bulk-Sales Law, R. S, art. 4001.
“It appeared from appellant’s original petition that the Groveton Motor Co., a partnership, had been sold by the Lipscomb Motor Co., a partnership, to E. S. Roberts, who operated the business under the same name after having had it incorporated.
“In due time, defendants E. S. Roberts, L. P. Atmar, and Groveton Motor Co., a corporation, filed proper pleas of privilege to be sued in Trinity County, in full confdrmity to R. S. art. 2007, whereupon plaintiff filed controverting affidavits setting forth in almost identical words the matters already ple-aded and incorporated, by reference, in its original petition in each of the affidavits. The sole ground alleged for giving the court venue over the appellees was that appellant had venue over the Lipscombs, and that the other defendants, appellees herein, were necessary parties to the suit.
“A hearing was had on the pleas of privilege and the contest thereof on June 20, 1930, at which time plaintiff introduced in evidence certain dray tickets, all dated October 16, 1929, or prior thereto, evidencing sales to- the Lipscomb partnership, it being agreed that ■the agent signing for the partnership had authority to bind its members. Plaintiff likewise placed a witness on the stand to explain the various notations, etc., appearing on the dray tickets. Plaintiff then offered in evidence its original petition, and defendants’ counsel objected that plaintiff’s pleadings did not constitute evidence in its behalf of the facts and matters therein pleaded, which objection was sustained, and upon appellant’s failure to offer any further evidence, the court sustained the pleas of privilege of ap-pellees, E. S. Roberts, L. P. Atmar, and Grove-ton Motor Co., a corporation, and ordered that the cause pertaining to appellees, and only as to them, and not as to T. G. Lipscomb and Mrs. P. G. Lipscomb, be transferred to Trinity County, Texas.”

Inveighing here against the upholding of these three pleas, appellant ably contends, in substance, that the venue was properly laid in Harris county as against the appellees, because: (1) The undisputed evidence showed that the two Lipscombs had contracted in writing to pay its debt in that county, and it further appeared from both its original petition and subsequent controverting affidavit, specifically making the same a part thereof, that the appellees 'were all proper and necessary parties, to the suit; (2) there being no exceptions or other pleadings by appellees setting up any misjoinder of parties or causes of action as affected them in such petition of appellant, which alleged not only that all defendants were residents of Trinity county, but that the three appellees were proper and necessary parties,, it was competent evidence of the facts therein so alleged, and, as a matter of law, left the trial court no alternative than to hold ■the appellees as well as the Lipscombs to have been properly sued in Harris county, since their pleas of privilege- that “no exception to the venue statute existed,” being a mere conclusion, raised no issue of fact.

In our opinion, the trial court’s ruling was correct; the statement of facts merely reflects, first, that the two Lipscombs, as partners doing business under the firm name of Groveton Motor Company, had purchased the goods specified in the account sued on from the appellant and agreed in writing to pay it for them in Harris county, and, second, this agreement of the parties:

“It is agreed that the receipts for goods purchased by the Groveton Motor Company from the plaintiff were duly signed by the authorized agents of said partnership, and that said agents so signing had authority to bind said partnership composed of said v * * Lipscomb and Mrs. P. G. Lipscomb, to pay for said goods, wares and merchandise in Houston, Harris County, Texas. * * *
“Plaintiff offered in evidence and for consideration by the court, its original petition filed herein, to which counsel for the defendants, E. S. Roberts, L. P. Atmar and the Groveton Motor Company, incorporated, objected, on the ground that the pleadings of plaintiff did not constitute evidence in its behalf, which objection was sustained by the court, and the court refused to consider the original petition of plaintiff in connection with passing upon said defendants’ pleas of privilege, and plaintiff’s contests thereof.”

Obviously, the mere empirical ipse dixit in appellant’s petition, although repeated in its controverting affidavit, that the ap-pellees “were necessary parties” to the suit, did not make them such, even as a matter of pleading, it being necessary under R. S. art. 2007 to set out “specifically the fact or facts relied upon to confer venue,” Duffy v. Cole Pet. Co., 117 Tex. 387, 5 S.W.(2d) 495; as the preliminary statement has already recited, there was nothing of the sort, unless the aver-ments relating to the Bulk Sales Law may be regarded as such, and appellant itself thus summarizes the whole purport of these in its written argument:

“The allegations in both the original petition and the controverting plea of appellant against the appellees is that, by reason of their having taken over the stock of goods, etc., without complying with the bulk-sales law, they had thereby become receivers and holders of said property, and held same in trust for the plaintiff.”

Even so, the only liability thereby charged against appellees is that, having violated the Bulk Sales Law in acquiring the property from the Lipscombs, they became receivers thereof for appellant’s benefit as a prior creditor of the Lipscombs — not that they became either primarily or secondarily liable to pay the debt the Lipscombs owed it; and what they thus charged seems to be the full legal effect of such a violation of that statute, R. S. art. 4001; Gardner v. Grocery Co., 113 Tex. 423, 206 S. W. 911; Bank of Carbon v. Coxe Mercantile Co. (Tex. Civ. App.) 241 S. W. 602 (dismissed for want of jurisdiction); but, since the causes of action against the two different sets of defendants were thus entirely separate and distinct, that would not make appellees necessary parties within the meaning of R. S. art. 1995, subdivision 29a as added by Acts 40th Leg. (1927) 1st Called Sess. c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995 subd. 29a) in the suit against the Lipscomb partnership only on the sworn account; McCarroll v. Edwards (Tex. Civ. App.) 22 S. W.(2d) 684; Bingham v. Graham (Tex. Civ. App). 220 S. W. 105; Wilson v. Reeves County Water Improvement District (Tex. Civ. App.) 256 S. W. 346; Wool Growers’ Central Storage Co. v. Edwards (Tex. Civ. App.) 10 S.W.(2d) 577; Fox, Sheriff, et al. v. Cone, US Tex. 212, 13 S.W.(2d) 65; Cerf v. Mings (Tex. Civ. App.) 15 S.W.(2d) 91; Justin McCarty, Inc., v. Ash et al. (Tex. Civ. App.) 18 S.W.(2d) 765.

However, the filing of appellees’ pleas of privilege, under the express terms of R. S. art. 2007, constituted prima facie proof of their right to the change of venue accorded, hence it became necessary for the appellant in controversion not only to allege, but also to prove — at least prima facie — facts sufficient to overcome such right; this it wholly failed to do as concerns the proof, even if our conclusion that the pleading too was insufficient be erroneous; the learned trial court was clearly correct in holding that appellant’s petition could not be received in evidence as establishing the facts therein alleged, but was merely to be considered by it in order to determine the nature and character of the suit. McLeroy v. Thrift, Inc., (Tex. Civ. App.) 22 S.W.(2d) 497; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.(2d) 495; Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; World Co. v. Dow, 116 Tex. 147, 287 S. W. 241; Cook v. Guzman (Tex. Civ. App.) 19 S.W.(2d) 855; Brooks v. Herren (Tex. Civ. App.) 20 S.W.(2d) 807; Bryan v. Collins (Tex. Civ. App.) 5 S.W.(2d) 600; Perry v. Wood (Tex. Civ. App.) 25 S.W.(2d) 650; Thompson v. Trentham (Tex. Civ. App.) 17 S.W.(2d) 130; Edmonds v. White (Tex. Civ. App.) 226 S. W. 819; American Rio Grande Land & Irrigation Co. v. Karle (Tex. Civ. App.) 237 S. W. 358; Texas Farm Mortgage Co. v. Starkey (Tex. Civ. App.) 25 S.W.(2d) 229; Justin McCarty, Inc., v. Ash (Tex. Civ. App.) 18 S.W.(2d) 765; Nolen v. Harding (Tex. Civ. App.) 235 S. W. 687; Yates v. State (Tex. Civ. App.) 3 S.W. (2d) 114; Grogan-Cochran Lumber Co. v. McWhorter (Tex. Civ. App.) 15 S.W.(2d) 126; Sims v. Trinity Farm Construction Co. (Tex. Civ. App.) 28 S.W.(2d) 856.

Wherefore, the resulting situation is that, were the violation of the Bulk Sales Law declared upon considered sufficient as a controverting pleading, there is no proof whatever that it was ever committed — a complete impasse to appellant’s case being thereby reached, since it had the burden of also proving what it charged in that respect. McLeroy v. Thrift, Inc., (Tex. Civ. App.) 22 S.W.(2d) 497, and other authorities cited, supra.

Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal; the judgment of the trial court will be affirmed.

Affirmed.


author: CONNER, C. J.

text:
    WRIGHT et al. v. MATHIS et al.
    No. 12436.
    Court of Civil Appeals of Texas. Fort Worth.
    March 14, 1931.
    Rehearing Denied May 30, 1931.
    Bonner-Bonner & Childress and J. E. Wine-gart, all of Wichita Falls, for appellants.
    Harry -Bunnenberg, of Wichita Falls, and C. P. Engelking, of Electra, for appellees.
   CONNER, C. J.

This suit was originally instituted by Robert Mathis, for himself and as assignee of R. M. Long, J. A. Howard, J. M. Bradshaw, A. B. Long, and E. H. Kilgroe, upon accounts aggregating $819 for daily wages performed by the named parties upon a described oil and gas lease in Wichita county, and to secure which Mathis sought to establish and foreclose a laborer’s lien upon the lease in question. As instituted, the suit was against Roy E. Wright, Panhandle Oil & Refining Company, Morris Persky, TJ. S. Machine Shop, Inc., Halliburton Oil Well Cementing Company, Roy Foster, J. R. Leath, R. E. Leath, C. Y. Derden, and W. J. Kelly. The parties named as defendants and who are now parties to this appeal appeared either by answer or plea of intervention. Rose Campbell intervened, claiming an undivided 1/32 interest in the oil lease. The Panhandle Oil & Refining Company set up a claim for $4,000, with interest and attorneys’ fees, due upon a mortgage executed by Roy F. Wright, the owner of the lease, pribr, as will later appear, to the inception of any of the liens involved in this appeal. It also claims an additional amount of $300 due upon a note, with interest and attorneys’ fees, plus $1,200 as the expense of putting a newly drilled well on the pump, and another item of $1,133.13 of expense in the production of oil, all sums- advanced and requests being made under the terins of an agreement with Roy F. Wright at the time the $4,000 note and mortgage was given. Morris J. Persky also intervened, setting up an account for material furnished, aggregating $1,-226.26, to secure which he also claimed a lien. The record further discloses the names of numerous other parties who had performed labor on the lease in question, but who had executed what is termed a “subordinating agreement” with the Panhandle Oil & Refining Company, by the terms of which they agreed that their claims might be subordinated to the claims of the said company. None of the persons here referred to are parties to this appeal.

Upon the trial, which was before the court without a jury, the court entered a judgment in favor of the Panhandle Oil & Refining Company for the amount found to be due upon the $4,000 note and the $300 note and declared them to be superior to all other liens. The account of Morris Persky for $1,226.25 with the lien claimed by him was also allowed and adjudged, but this lien was declared subject to the prior liens of the Panhandle Oil & Refining Company by virtue of the subrogation agreement. The court further adjudged in favor of the plaintiff Robert Mathis for the aggregate sum of $819 with the claimed laborer’s lien foreclosed, and declared said lien to be inferior only to the $4,000, $300, and $1,200 liens of the Panhandle Oil & Refining Company. Next judgment was rendered for the Panhandle Oil & Refining Company for the cost of operating the lease from March 1, 1929, to December 21, 1929,. in the sum of $1,733.13; the court next found that Rose Campbell had no interest in said oil lease and entered judgment denying her any relief.

The judgment directed that the lease be sold and the proceeds thereof, as well as the proceeds of the oil that had been produced during the time involved, be applied first to the extinguishment of the Panhandle Oil & Refining Company’s first lien of $4,000 with its accumulated interest and attorneys’ fees of $367.95; next to the extinguishment of the Panhandle Oil & Refining Company’s $1,-200 lien, with interest and attorneys fees, aggregating the sum of $1,400; next to the payment of the claim of Robert Mathis for the sum of $819; next to the payment of Morris Persky’s lien of $626.25; and next and last to the payment of the Panhandle Oil & Refining Company’s equitable lien of $1,733.13.

From the judgment so entered, writs of error to this court have been sued out by the Panhandle Oil & Refining Company, Roy F. Wright, Rose Campbell, and her husband, Ed. Campbell, and the Halliburton Oil Well & Cement Company. The parties last named having severally presented briefs, We will first briefly dispose of the questions presented by Rose Campbell and the Halliburton Oil Well Cement Company. Both claims were denied by the court, and error is assigned to the judgment in these respects. We conclude that the judgment against Rose ‘Campbell cannot be disturbed. She claims an undivided 1/32 interest in the lease, and it is contended that the undisputed evidence shows that she was the owner of that undivided interest. It is undisputed in the evidence that at the inception of the transactions involved the legal title to the oil lease in question was in Roy F. Wright; that Roy F. Wright was a nonresident, living in Chicago, and gave to his brother-in-law, D. D. Moninger, power of attorney, vesting in him full and absolute authority to take possession of, manage, and operate the lease in all respects as fully as could be done by Wright himself. It seems from Moninger’s testimony that an undivided 1/32 interest in the lease had been issued to one J. J. Beauregard, of Wichita Falls, which was later canceled, and at no time during the period in question has he made any claim to it, or claimed any part of the proceeds of the oil produced.

Martin C. Koebel testified that he was representing Mrs. Campbell, among others; that Mrs. Campbell was a married woman whose ■husband’s name was Edward. Jouette Bonner testified, among other things, that he had filed the pleadings in behalf of Rose Campbell and husband; that Mr. Koebel was an attorney from Chicago and in attendance upon the court; that he did not know when he first heard of the claim of defendant Rose Campbell, but-it was some time between August, 1928, and tbe date of the trial; that he received his information through correspondence with Mr. Koebel, which he declined to produce; that he had never received any di rect request from Rose Campbell or her husband to appear in the suit; that “I know what kind of a claim she claims in this property. It is an assignment to an interest in it. l/32nd interest. I knew that before a moment ago when Mr. Koebel stated what he thought it was. It is an assignment to an oil and gas lease. I can’t say positively I know where Rose Campbell lives, but I think she lives in Chicago. I got that information through or from Mr. Koebel.”

We find no transfer or other evidence of title in Rose Campbell other than that indicated by the testimony of Mr. Koebel and Mr. Bonner, and we conclude that that evidence is not sufficient to authorize a reversal of the judgment against Rose Campbell and her husband. If in fact she had an assignment, no excuse is offered for it not having been produced; all that Mr. Bonner seems to have known about her claim was information received through Martin Koebel, and Mr. Koe-bel in testifying as a witness at no time stated that he had ever seen or known of a conveyance of any kind sufficient to divest the original legal title of Roy E. Wright and invest the same in Rose Campbell. The judgment of the court, finding that this 1/32 interest was not in Rose Campbell, ,but iñ Roy P. Wright, must, therefore, be upheld.

The Halliburton claim was a duly verified account for four days cementing, beginning January 2, 1929, aggregating $675. The evidence wholly fails to show that the proper notice of this account was given or the proper record made thereof to establish in the company a lien as claimed, and, while it does not appear clear to us why the court might not have rendered a judgment in favor of the cement company as against Roy E. Wright for the $675, no complaint of a failure in this respect seems to have been made, and the court’s judgment denying the account will also be sustained.

We are thus brought to the concluding, controversy affecting the Panhandle Oil & Refining Company and Robert Mathis. It will be recalled that Robert Mathis was not a party to the subordinating agreement, and that he, hence, at no time has waived his right, if one he has, to priority over the liens of the Panhandle- Oil & Refining Company. It is contended in his behalf that his account began prior to the acquisition of right in the Panhandle Oil & Refining Company. While this appears to be true from the statement of facts, yet it further appears that that account was in all respects fully paid prior to the 2nd day of November, 1928, nearly a month after the Panhandle Oil & Refining Company had taken over the lease, and that the account for labor, aggregating $819, accrued on and after November 2, 1928. Without doubt, therefore, the Panhandle Oil & Refining Company’s mortgage lien for $4,000, interest and attorneys’ fees, was prior in point of right to that of Robert Mathis, and we so find.

It is contended in behalf of the Panhandle Oil & Refining Company that Robert Mathis failed to sufficiently comply with the statutes in giving notice of his intention to claim a lien and in the presentation and rec-ord of his account. The testimony is to the effect that Mathis gave notice of his intention to Mr. Moninger to claim a lien on either the 10th or 11th of November, 1928. His account was duly identified and recorded on December 20,1929. We- think the account was sufficiently identified to comply with subdivision 2 of article 5453 of our statutes, and if the notice was given on November 10,1928, as the court below must have determined, it was in time, and we feel unable to say from the record that the court was in error in sustaining the Mathis lien. ' However, in our disposition of the matter, we have not attached special importance to the formalities required in establishing a day laborer’s lien under the statutes, for it is to be observed that the priority of the contract lien of the Panhandle Oil & Refining Company for $4,000 cannot be questioned, and the record discloses that the lease involved was about to be lost for want of sufficient production; that, to save it, it was necessary to further develop the lease, and to that end the lease owner, Roy E. Wright, through his duly authorized representative Moninger, contracted with the Panhandle Oil & Refining Company to furnish the necessary means and drill another well, which it did. There was no objection to such an arrangement by any of the parties to this suit. While Robert Mathis and the laborers whose accounts were assigned to him do not appear to have joined in the subordinating agreement, yet it nowhere appears that they objected thereto, and it further appears that each and all labored in drilling and developing the very well that the Panhandle Oil & Refining Company had contracted to drill. It was therefore evidently in the interest of all, and we think we can imply the consent of all, or at least deny any one of them the right to remain silent and wait to object until the beneficial results contemplated were obtained and then claim participation therein, to the exclusion of others. Under the court’s findings, all labor and material for which claims were made was performed and furnished, as stated, after the contract lien for $4,000 was affected. All sums of money, material, and labor were, in proportion to its extent, alike useful and necessary for the accomplishment of the general good, and therefore should have equality of right to satisfaction, “in accord with authorities to he later cited.”

We hence think that, after the contract debt •of $4,000 due the Panhandle Oil & Refining Company, with interest and attorneys’ fees, as fixed by the court’s judgment, aggregating $4,830.81, is paid, the remainder of the proceeds of all oil produced at the time of sale, as hereinafter directed, should be applied, first, to the payment of all costs of litigation ; second, that the remainder should be distributed rateably among those in whose favor the judgment, has been rendered. In this way each judgment claimant is made to rateably bear his share of all expenses, all moneys and material contributed to the general welfare, and to rateably share in the net benefit. In such a distribution the excess proceeds, if any, should go to the owner of the lease. The foregoing method of disposition rests upon equitable principles, and hence the irregularities of the several laborers, in whose behalf judgment has been rendered, in attempting to fix a lien on a leasehold estate, are immaterial. In other words, our judgment is based on the equities of the case and not necessarily on the asserted liens and priority. The Panhandle Oil & Refining Company undoubtedly obtained and held the rightful possession of the lease and expended moneys in its development. The laborers and materialmen also participated in the development, and we think the relation of the Panhandle Oil & Refining Company, laborers, and materialmen to one another and to the lease may be analogized to the relation of tenants in common, and it is well recognized in equity that “contribution also lies between joint tenants, tenants in common and part owners of ships and other chattels for all charges and expenditures incurred for the common benefit.” See Story’s Equity Jurisprudence, vol. 2 (14th Ed.) § 6&0. In § 681, in speaking of the equitable lien which rests upon property to secure the proper contribution, the author says: “It generally exists in favor of artisans and others who have bestowed labor and services upon the property in its repair, improvement, and preservation.”

The theory here suggested is plainly declared by our Supreme Court in the case of Perry’s Adm’r v. Smith, 34 Tex. 277. In the case of Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330, it was held that a cotenant expending means to protect an estate was entitled to call upon his cotenants for contribution where they sought partition. In the case of Burnham v. Hardy Oil Co. (Tex. Civ. App.) 147 S. W. 330, 334, where it appears that various oil companies obtained leases on certain lands, and that, after the discovery of oil, various heirs of previous grantors in the chain of title instituted suit for their interest and for damages, claiming, among other things, the full value of their portion of the oil extracted from the ground, the claim of one of the parties was held to be good. In speaking of the relation of the parties to one another the court said: “Concerning its liability to plaintiffs with reference to oil taken from the land, we think the Texas Land & Cattle Company, having an unquestioned undivided interest in the league, had, by virtue of its undivided ownership in the land, the right to extract oil from the tract. In ease oil was not found, it would have to bear the loss of its experiment and could not call on a nonparticipating cotenant for contribution. But where it found oil and marketed the same, the cotenant requiring it to account to him for his interest in the product, measured by his interest in the land, would be required to allow his proportion of the necessary cost of producing and marketing the product. Wolfe v. Childs, 42 Colo. 121, 94 P. 292, 126 Am. St. Rep. 152. This reasonable expense would include the cost of the machinery and appliances and other means necessary and proper to the production. In other words, all reasonable expenses incurred in the production and marketing would havfe to be deducted from the gross value, before a division of the proceeds between the cotenants. The result of the above is that the Texas Land & Cattle Company, or its lessees of the land, had the right to pay and to charge to the fund derived from the product the reasonable cost of what was necessary to be done in producing and marketing the oil. This being so, it, or its lessee, had the right to contract with the Rio Bravo Oil Company for a pumping plant and a pipe line for utilizing the oil and to pay for the same, either in money or in oil; and in a suit by other cotenants against the producing cotenant for its share of the value of the oil, the cost of the plant and pipe line to the extent that it is fair and reasonable should be allowed. And the Rio Bravo Oil Company would not be liable to plaintiffs for the oil it received for such necessary improvements, if it was a fair equivalent therefor. This does not present the case of a trespasser taking oil from another’s land, in which a different rule would apply. O’Neil v. Sun Co. [58 Tex. Civ. App. 167], 123 S. W. 172, 176; Bender v. Brooks [103 Tex. 329], 127 S. W. 168, 170 [Ann. Cas. 1913A, 559]. Under the above circumstances, we are of opinion that the Rio Bravo Oil Company would not be liable to plaintiffs for the oi'l it took at its reasonable value in payment for the plant and pipe line supplied by it.”

In Simpkins on Equity, page 624, it is said:

“Where one of several sureties, or one of several co-obligors, pays the whole debt, or more than his share of the amount due, equity will equalize the burden by forcing contribution from those jointly liable, until the party paying has been reimbursed the excess over what he was required to pay, had those jointly obligated done their duty. Merchants’ Bank v. McAnulty, 89 Tex. 124, 33 S. W. 963, 965; Moore v. Hanscom (Tex. Civ. App.) 103 S. W. 665, 672, and cases cited; Jarvis v. Matson (Tex. Civ. App.) 94 S. W. 1079; Booker v. Crocker, 132 F. 7, 65 C. C. A. 627; Rush v. Bishop, 60 Tex. 178; Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751; Jalufke v. Matejek, 22 Tex. Civ. App. 384, 55 S. W. 395; Graves v. Smith, 4 Tex. Civ. App. 537, 23 S. W. 603; Watkin Music Co. v. Basham, 48 Tex. Civ. App. 505, 106 S. W. 734.
“Like subrogation, it rests upon the maxim that ‘equality is equity’, and is purely a creature of equity.”

It only remains to determine the further rights of the parties. We finally conclude that the Panhandle Oil & Refining. Company is entitled, as before stated, to judgment for its debt, interest and attorneys’ fees, on the $4,000 note and mortgage executed by Roy F. Wright. That this debt constitutes a first lien upon the lease in question and upon the proceeds of all oil produced during the operation of the lease by the Panhandle Oil & Refining Company as well as also upon all oil that may be hereafter produced prior to the date of the sale hereinafter directed; and that it also have an equitable lien on all of said properties for the payment of the $300 note executed November 2, 1928, that being the same day upon which the plaintiff Robert Mathis began his daily labor on the well, in the development of which the $300 was applied. And also a further equitable lien to secure the sum of $600 paid Morris Persky on his account of $1,200 for material furnished. And a further equitable lien to secure the sum of $1,733.13 expended by the Panhandle Oil & Refining Company in the operation of the well involved. We further find that the plaintiff Robert Mathis has at least an equitable lien upon the properties involved to secure the payment of his account for daily labor, and also that Morris Persky is entitled to such lien to secure the unpaid balance of $626.25 on his account for material. .We find that the equitable liens of the Panhandle Oil & Refining Company, Robert Mathis, and Morris Persky, as above detailed, should be held to be on a parity or equality of legal standing, and that in the disposition of the pro-eeeds of the sale of the lease and of the proceeds of the oil, which is hereby directed, the Panhandle Oil & Refining Company is entitled to and should receive from both Morris Persky and Robert Mathis contributions for their pro rata parts of the several sums other than the $4,'000 indebtedness, above awarded to the Panhandle Oil & Refining Company expended in the development and operation of well No. 2 involved in this controversy ; such contributions on their part to be in proportion to their several rights of recovery to the grand total of the sums for which an equitable lien has been declared in favor of the Panhandle Oil & Refining Company ; for all of which the judgment below will be here reformed, and, as so reformed, will be now and here rendered in accord with the foregoing findings. As to the parties who have not appealed, the judgment below is left undisturbed.

On Motion for Rehearing.

On re-examination of the statement of facts (pages 14, 15, 19, and 28, 42, 43, 44) we find that in ascertaining the sums due the Panhandle Oil & Refining Company, to which that company is justly entitled to an equitable lien together with others as provided for in the opinion, we omitted $600 which should be added to the judgment we have rendered. This $600 was a part of $1,200 borrowed by the agent of Roy F. Wright of the Panhandle Oil & Refining Company to put the well, after drilled, upon the pump. Of this $1,200, $600 was paid to Morris Persky, for which, in our opinion and judgment, credit was given the Panhandle Company. The remaining $600 we find was appropriated by the representatives of Wright in the payment for other labor and material used in putting the well upon the pump. It is accordingly ordered that our original opinion and judgment in this case be so corrected as to show the Panhandle Company entitled to receive this additional sum as a part of the fund for which it has been adjudged an equitable lien together with Robert Mathis.

In oral argument on the’motion, fear was expressed lest our opinion be construed as holding that the laborer’s lien, such as claimed by Robert Mathis and his assignors, extended to the oil after its production as well as to the leasehold estate itself. As to this we think it sufficient to say that that question’ was neither presented, considered, nor determined by us.

In all other respects the motion for rehearing is overruled.