author: LANGDON, Justice.

text:
    Donald E. WILLIAMS et al., Appellants, v. R. N. SMITH et al., Appellees.
    No. 16753.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 18, 1966.
    Rehearing Denied Dec. 30, 1966.

      Simon & Simon, and Harold D. Hammett and Richard U. Simon, Fort Worth, for appellants.
    Tilley, Hyder & Law, and Samuel A. Denny and Thos. H. Law, Fort Worth, fo» appellees.
   OPINION

LANGDON, Justice.

The appellants as plaintiffs being owners of single family dwellings in Ridglea Hills, brought this suit under the Uniform Declaratory Judgments Act, Art. 2524-1, Vernon’s Ann.Tex.Civ.St, to have the district court declare that the single family residential restrictions originally placed upon the Ridglea Hills addition in Fort Worth are in force and effect and that the ap-pellees (defendants) cannot build apartments, condominiums, or multi family dwellings within such addition.

Trial before the court without a jury resulted in a take nothing judgment against appellants. The trial court indicated that there was little conflict, if any, in the evidence including testimony and numerous exhibits bearing upon the material facts and that disposition of the case depended upon the application of the law to the undisputed facts adduced upon trial. No formal findings were requested and none were filed.

The court by its judgment held that all of the restrictions contained in the original dedication of the Ridglea Hills Addition in 1946 have been completely abandoned and waived by the adoption of seven revisions and amendments to the original dedication which were made and filed in 1953, 1954 and 1955, when taken in connection with the actions and conduct of the various owners and their assigns in the years that followed. That finally, while not controlling, the matter of balancing equities should be taken into consideration. The take nothing judgment against the appellants rendered on January 19 was signed on January 26, 1966.

By five points of error the appellants contend that the trial court erred in that its judgment is not sustainable on the grounds of abandonment, waiver, estoppel or laches and that the court erred in balancing the equities in favor of the appellees rather than in their favor.

We reverse and render.

A summary of the plat and dedication history of the land involved as reflected by the various instruments filed and recorded in the plat and deed records of Tarrant County is summarized as follows:

Original Plat and Dedication, January 10, 1946

The original plat, dedication and restrictions for “Ridglea Hills” Addition was dated January 10, 1946, filed January 11, 1946, and recorded in Vol. 388-B, p. 225 of the Plat Records of Tarrant County, Texas.

This original dedication setting out restrictions for “Ridglea Hills” outlined a general plan for the development of the addition for single family residences, providing for approval of plans, setbacks, minimum costs, easements, etc.

Under Section 2, Use of Land, subpara-graph (b) provided: “No lot or plot shall ever be used for any purpose other than single family residence purposes. No dwelling house located thereon shall ever be used for other than single family residence purposes, nor shall any outbuilding or structure located thereon be used in a manner other than incidental to such family residence purposes. The erection and/or maintenance and/or use of any building, or the use of any lot or plot for other purposes, including but not limited to commercial or professional purposes — for example, stores, shops, flats, duplex houses, apartment houses, rooming houses, tourists’ courts, schools, churches, hospitals, and filling stations, but without limitation to such examples — is hereby expressly prohibited.

“Only one single family residence shall be constructed or permitted on any lot or plot.

“No garage or outbuilding on any lot or plot shall be used as a residence or living quarters, except by servants engaged on the premises.” (Emphasis supplied.)

Under Section 10, General, it is provided: “Ridglea Hills may include restrictions, other than those set out herein, in any contract or deed to any lots or plots without otherwise modifying the general plan above outlined, and such other restrictions shall inure to the benefit of and bind the respective parties in the same manner as though they had been expressed herein. (Emphasis supplied.)

“The restrictions herein set out shall be referred to, adopted and made part of each and every contract and deed executed by and on behalf of Ridglea Hills conveying said property, or any part thereof, to all such intents and purposes as though incorporated in full therein; and each such contract and/or deed shall be conclusively held to have been so executed, delivered and accepted upon the express conditions herein stated.

“All of the restrictions, covenants, reservations, liens and charges appearing herein, as well as those appearing in any contract, deed or other conveyance to or covering any part of this property, shall be construed together, but if any one of the same shall be held to be invalid, or for any reason is not enforced, none of the others shall be affected or impaired thereby, but shall remain in full force and effect.”

Under Section 11, Right to Enforce, the restrictions provided: “The restrictions herein set forth are imposed upon each lot and plot of land for the benefit of each and every other lot and plot, shall constitute covenants running with the land, and shall inure to the benefit of and be binding on Ridglea Hills, Ltd., its successors and assigns, the individuals comprising such partnership, their assigns, and each and every purchaser of and person acquiring any interest in any part of such land, and their assigns, and all persons acquiring any of the land covered by these restrictions shall be taken to agree and covenant to conform to and observe all such restrictions as to the use of said land (no restrictions or covenants herein set forth shall be binding on any corporation, person or persons except in respect to breaches committed during the time such corporation or person owns or has an interest in said land or part thereof); and Ridglea Hills, its successors and assigns, and the partners thereof, their heirs, assigns, executors and administrators, and the owner or owners of any part of such land and of any interest therein, acting jointly or severally, shall have the right to sue for and obtain an injunction, to prevent the breach of, or to enforce the observance of, the restrictions and covenants above set forth in addition to the ordinary legal action for damages, and the failure of any one or all of such persons to enforce any of the restrictions or covenants herein set forth at the time of its violation, shall in no event be deemed to be a waiver of the right to do so at any time thereafter, nor shall the failure to enforce such restrictions as to any one or more lots or plots, or as to any one or more owners thereof, be deemed a waiver of the right to enforce them as to any and all other lots and owners.” (Emphasis supplied.)

Section 13, Duration, provided that: “All of the restrictions and covenants herein set forth shall continue and be binding upon Ridglea Hills, its successors and assigns, the individual partners thereof, and their heirs, assigns, executors and administrators, and all parties claiming by, through or under it or them, for a period of twenty-five (25) years from the date this instrument is filed for record in the office of the County Clerk of Tarrant County, Texas, and shall automatically be extended thereafter for successive periods of fifteen (15) years each; provided, however, that at any time within five years prior to the expiration of the first twenty-five year period, or within five years prior to the expiration of any fifteen year period thereafter, the owners of the legal title to the lots or plots having at the time more than fifty per cent of the area shown on the map attached hereto and covered by this dedication, may provide for the release of any and all of the lots hereby restricted, from any one or more of said restrictions and covenants at the end of the first twenty-five year period, or at the end of any successive fifteen-year period, by executing and acknowledging a proper agreement or agreements in writing for such purpose and filing the same for record in the manner then required for the recording of land instruments.”

The original dedication permitted the subdivision of a lot into two or not more than three smaller lots. The addition consisted of lots 1 through 5 of Block 1; lots 1, 2 and 3 of Block 2; lots 1 through 11 of Block 3; and lots 1 through 17 of Block 4 for a total of 36 estate sized lots.

It will be noted that Section 2 of the original restrictions not only affirmatively and exclusively provided for single family residences but further emphasized this use by providing that the erection or maintenance or use of any building for other purposes, including flats, duplex houses, apartments and rooming houses, etc., was expressly prohibited.

Further, it will be observed that Section 10 of the original dedication provided that “Ridglea Hills” may include restrictions in addition to those enumerated in any contract or deed to any lots or plots without otherwise modifying the general plan above outlined. Thus, specifically it was provided that while additional restrictions might be imposed upon the property which under the general plan provided for an addition devoted exclusively for single family residence purposes there was no authority to lessen or vitiate any of the restrictions originally placed upon the addition.

First Revision — April 15,1953

April IS, 1953 — an instrument was filed which was captioned, “Dedication of Blocks 29 to 31 (Both Inclusive) of Ridglea Hills, being a revision of Lots 5, 6, 7, 8, 9 and portions of Lots 4, 10 and 11, in Block 4, * * * (of the original plat and dedication)” Section 1 of the revision provided that the lots shall be used for private residence purposes only.

Second Revision — July 9, 1953

On July 9, 1953, an instrument was filed with the caption, “Dedication of Blocks 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 55, and 56, of Ridglea Hills, * * * being a Revision of Block 3 (consisting of lots 1-11, both inclusive), and Lots 1, 2, 3, 12, 13, 14, 15, 16, and 17 and portions of Lots 4, 10 and 11, all in Block 4, of Ridglea Hills, * * (The portions of the latter three lots were those remaining after the first revision of April 15, 1953.) This revision abutted the property covered by the first revision. Section 1 thereof provided that the lots shall be used for private residence purposes only except that Blocks 44, 45 and 56 may be used for single family dwellings and multiple apartment units. Blocks 32 and '41 were dedicated as blocks only and were not otherwise amended by the revision. At this point Blocks 32 and 41 created by the second revision and lots 1-5, Block 1 and lots 1, 2 and 3 of Block 2, of the original dedication of 1946 had not been revised or amended.

Third Revision — May 28, 1954

On May 28, 1954, there was filed a “Dedication of Block 47 and Lots 2 through 6, both inclusive, in Block 48 of Ridglea Hills, * * * being a Sub-division of portions of Lots 1 and 2 in Block 1, of Ridglea Hills.” This revision provided that, “No lot or plot shall ever be used for any purpose other than single family residence purposes.”

Fourth Revision — July 15,1954

On July 15, 1954, a revision was filed subdividing Blocks 44,45 and 56 which were formed pursuant to the second revision filed July 9, 1953. Under this revision Block .44 — A, a subdivision of said three blocks was created which is commonly referred to as the “Big Lake” area. Section 1 provided that all of said lots shall be used for private residence purposes only.

Fifth Revision — August 11, 1954

On August 11, 1954, a plat and dedication subdividing Block 32 (created by the second revision filed July 9, 1953) was filed. Section 1 provided the lots shall be used for private residence purposes only.

Sixth Revision — March 16, 1955

On March 16, 1955, a dedication and restrictions were filed by which Blocks 46 through 58 were created in the revision of lots 3, 4, 5 and a portion of lot 2 in Block 1 of Ridglea Hills; lots 1, 2 and 3 and portions of lots 4 and 5 in Block 2 of Ridglea Hills. Section 1 provided that all lots except those in Block 47 shall be used for private residence purposes only. That “The lots in Block 47 hereby dedicated may be used either for residential or apartment purposes. If said lots are used for residential purposes, the same restrictions applicable to all other residential lots hereby dedicated shall apply to said lots in Block 47.” (Emphasis supplied.)

Seventh Revision — May 31, 1955

On May 31, 1955, there was filed dedication and restrictions covering Block 41 of Ridglea Hills Addition which was created by the second revision dated July 9, 1953. Section 1 provided that all lots therein, “shall be used for private residence purposes only.”

The various revisions above described except the fourth contained a Section 10 which provided that, “By .this Dedication it is understood and agreed that all prior restrictions placed on said property shall be amended as shown in this instrument, * * Provisions contained in the fourth revision had the same effect. All of the revisions contained provisions almost identical to those in the original dedication as to “duration” and “right to enforce” the restrictions and enforcements. The revisions contained many other provisions similar to the original dedication concerning set-backs, frontage, material, approval of plans and restrictions all of which were devoted to the general purpose expressed in the original dedication of maintaining the highly desirable addition as one restricted to single family residences.

By way of summary it is to be observed that after all of the revisions above described had been filed the Ridglea Hills Addition originally created in 1946 as an exclusive residential area remained as such except for the size of the lots. It retained the same name and the same perimeter. Since the size of the lots were reduced the set-backs, roads, etc., were necessarily changed to accommodate the revised lots. As in the beginning, the addition was restricted to single family dwellings and use except that according to the sixth revision the lots in Block 47 may be used either for residential or apartment purposes. As shown above the second revision of July 9, 1953 provided that Blocks 44, 45 and 56 may be used for single family dwellings and multiple apartment units. These three blocks were by the fourth revision of July 15, 1954 revised and dedicated as Block 44— A, and devoted solely to an exclusive single family residence area. In the light of this history the appellants were not obligated to assume that Block 47 would be used for apartments or condominiums rather than for single family purposes in violation of the original dedication when either use was specified in the revision. Appellants were not required under the circumstances to take any action until it became clear and obvious to them that an effort would be made to violate the clear provisions of the original dedication and the restrictions therein regarding single family use of all lots in the addition.

On August 23, 1946, Mrs. Lucille K. Tilley purchased lot 2 in Block 2 of the original dedication and under date of April 13, 1953, she joined by her husband, Rice M. Tilley (appellees), entered into a letter agreement with A. C. Luther, J. T. Luther, Jr. and Earl Wilson, Jr., whereby Mrs. Tilley conveyed to the Luthers and Wilson a part of the property which she had acquired, in the Ridglea Hills Addition, on August 2, 1946. She retained a part thereof. Mrs. Tilley, joined by her husband, executed a deed dated April 14, 1953, to Luther, Luther and Wilson, and said deed and their letter agreement, were recorded. By said letter agreement and deed, Mrs. Tilley and her husband, on the one hand, sold a part of the property lying within the original “Ridglea Hills” Addition (which she had acquired in 1946) to Luther, Luther and Wilson and she agreed that she would waive the original restrictions as against such property, and Luther, Luther and Wilson agreed that they would waive such original restrictions as against the property which she retained. The deed refers specifically to the restrictions which were placed on such properties by the original Ridglea Hills dedication and plat recorded in 388-B, p. 225, in January, 1946. We agree with appellants that by the letter agreement and deed these parties were saying to one another, in effect, that “I will waive the single family restrictions on the land which I am selling to you, if you will waive the single family restrictions on the land which I am keeping.” The letter agreement also obligated the grantees to obtain a change in the city zoning from single family residence to multiple units on the property retained by Mrs. Tilley.

These agreements were thereafter carried out, in so far as Mrs. Tilley’s land was concerned (being the property involved in this immediate action) by the filing of a new plat and dedication, the sixth revision, dated in January,-1955, joined by a number of owners of property and recorded March 16, 1955. This dedication provided, “The lots in Block 47 hereby dedicated may be used either for residential or apartment purposes.”

It is this 1955 dedication and restriction which the appellees depend upon as permitting the construction of apartments or condominiums on the land now identified and referred to as Block 47.

The record reflects that there were 144 owners of property on March 16, 1955, who owned land lying within “Ridglea Hills” Addition, as originally platted and restricted in 1946, who did not join in the sixth revision. These landowners on March 16, 1955, owned all of the area which was identified as Block 41, and owned 176 additional separate lots. The plaintiffs acquired title to their respective properties after May 31, 1955, the date on which the last or seventh revision was filed. None of the seven revisions were signed by all of the owners of Ridglea Hills but only by the owners in the particular area affected with exception of the first revision.

Don Williams, one of the appellants, being qualified and experienced in such matters, had made a detailed search of all of the lot transactions in Ridglea Hills since the original platting in January, 1946. While testifying he had before him exhibits which showed the area covered by the original January, 1946, plat and restrictions, and another which showed in yellow the lot ownerships which did not execute the apartment restrictions for Block 47, filed March 16, 1955, and an exhibit showing the dedication and restrictions filed on March 16, 1955. Based upon the research conducted by Mr. Williams and his testimony concerning his findings it was established and is undisputed in the record that at no time prior to March 16, 1955 had any of the owners of the property outlined in yellow and identified by lot and name executed any waivers or amendments to the restrictions, waiving the single family residential restrictions as to the property of appellees, nor had the predecessor in ownership of such properties executed any such waivers nor had their successors in ownership at any time thereafter done so.

As above reflected the Tilleys and Luther, Luther and Wilson in their attempt to release the single family restrictions imposed by the original “Ridglea Hills” platting and dedication recorded in Vol. 388-B, p. 225, made specific reference to the original restrictions in the deed between them. The sixth revision was executed by considerably less than the ownership of the lots in said “Ridglea Hills” Addition as originally platted. It violated the provisions of the original plat, deed and restrictions which were for the benefit of every lot and were binding upon every property, etc., and was contrary to the express provisions of the restrictions which set out a procedure whereby less than the total ownership can release restrictions.

Section 13, Duration providing for a twenty-five (25) year period for the restrictions, also provided that at any time within five (5) years prior to the expiration of the first twenty-five (25) years, the owners of the legal title to more than fifty percent (50%) of the area that was shown on the original plat could execute an instrument releasing the restrictions, which would become effective at the end of the first twenty-five (25). years.

The provisions of the original dedication set up the machinery ¡whereby, after January 10, 1966, a majority of the owners could release the restrictions, effective January 10, 1971.

The instrument signed by the Tilleys and Luther, Luther and Wilson, and later joined by others, was executed prior to January 10, 1966, and was therefore contrary to the contractual provisions covering any release of restrictions.

In Norwood v. Davis, 345 S.W.2d 944 (Austin Tex.Civ.App., 1961, no writ hist.), in discussing a dedication providing modification by written consent, the court stated, “that the restrictions were for the benefit of subsequent owners in the addition and not personal to the developer.” And that, “The power to modify or amend residential restrictions may be reserved but in the exact manner provided in the dedication.” See authorities cited therein.

In our opinion the sixth revision was ineffective and unenforceable in so far as it purported to waive and release the single family residential restriction in Block 47 and to permit the building of apartments therein in the absence of the contractual concurrence of the remaining property owners in the addition.

This principle was enunciated in the case of Farmer v. Thompson, 289 S.W.2d 351 (Fort Worth Tex.Civ.App., 1956, ref., n. r. e.), in which it was held: “Undoubtedly, all the property owners in the Addition had the right to modify the contractual restrictions. But it requires the same mutuality to vary the restrictions as it did to create them. One party cannot modify a completed contract, nor can one owner in a restricted, subdivision modify the restrictions without the concurrence of all the others. (Citing authorities).”

Apparently from the record the primary basis for the court’s decision was that the seven revisions above described completely emasculated, destroyed or abandoned the original 1946 restrictions and the general plan for a single family residential addition. We are in disagreement with this conclusion. In our opinion the revisions were consistent with the development of the addition, exclusively for single family residences. The fact that the appellants acquired and occupy homes on such revised lots did not make them parties to violations of such a nature as to estop them from enforcing the single family residential restrictions. An intentional and complete abandonment of the latter restrictions finds no support in this record. The testimony of the developer-dedicator that, “we had no intentions of keeping any of it” does not change the legal effect of the original dedication. The purchasers of the property were not bound by the unexpressed intentions of the dedicator. The various revisions which changed lot sizes, lot plans, street plans, and eliminated the bridle path were consistent with the original single family residential restrictions. Until the appellees attempted a departure therefrom there had been no expressed intentions by anyone to abandon the single family residential restrictions nor had there been any projected violations thereof except as to Blocks 44, 45 and 56 created by the second revision on July 9, 1953, and on July 15, 1954 were dedicated as Block 44 — A with lake lots restricted to single family residences.

In this connection we call attention to the underscored portion of Section 11 of the original dedication in which it is stated, “ * * * nor shall the failure to enforce such restrictions as to any one or more lots or plots, or as to any one or more owners thereof, be deemed a waiver of the right to enforce them as to any and all other lots and owners.” And Section 10 of the original dedication states that if any one of the restrictive covenants therein “ * * * for any reason is not enforced, none of the others shall be affected or impaired thereby, but shall remain in full force and effect.”

In the case of Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506 (1944), the Supreme Court in requiring removal of a fence by mandatory injunction, quoted with approval the following language from 18 C.J., p. 403, § 468, under the heading “Waiver or Abandonment”: “ * * * ‘But where violations have not been permitted to such an extent as to evidence an abandonment of the plan, a grantee will not be prevented from objecting to further violations by the fact that he has not objected to previous violations by others, particularly where such violations do not immediately affect the enjoyment of his own premises, or where they were trivial in character as compared with those complained of.’ ”

In 26 C.J.S. Deeds, § 169, p. 1162, under the heading, “Release, Waiver, Es-toppel, or Abandonment”, it is stated: “Mere acquiescence has been held not to constitute abandonment as long as a restriction remains of any value; and those entitled to enforce a restriction, in so far as they are not affected by the principles of estoppel or waiver, are entitled to relief even though there may have been some relaxation, as long as there still remains something of value to them.” We find no basis for estoppel or waiver in the instant case. See also Barham v. Reames, 366 S.W.2d 257 (Fort Worth Tex.Civ.App., 1963, no writ hist.); Western Management Corporation v. High Crest Realty Company, 331 S.W.2d 365 (Fort Worth Tex.Civ.App., 1960, writ ref.).

In Faubian v. Busch, 240 S.W.2d 361, 367 (Amarillo Tex.Civ.App., 1951, ref., n. r. e.), cited in the Western Management Corporation v. High Crest Realty Company case, supra, it was stated, “Appellees contend that the termination of the restrictions would only affect their four lots. Such contentions have been previously made in similar cases but the courts have concluded that such a contention is not logically sound for the reason that lots adjacent to those upon which restrictions had been violated would suffer first and be affected most. Under such circumstances, the adjacent owner could with propriety likewise violate the restrictions, then the one next to him would in equity have an equal right; and so on throughout the whole Addition. By such process of reasoning the entire purpose and intention originally expressed to create a restricted residential district could be thwarted and all property owners who did not desire to accept the changed situation and convert their homes into business property would be penalized without fault on their part. It is our opinion that equity in such a situation is with the property owners who desire that their home district be confined to its original purpose, and that equity is not with one or two or a few who seek to violate those conditions because they happen to own the particular piece of property which was most affected by changed conditions. In considering such matters it has been held that the best interest of the property owners generally within the restricted area should be considered and not the best interest of only one or two or even a few property owners. It has also been held in such cases that changed conditions outside of the restricted area must not be permitted to terminate the restrictions within the restricted area when such would cause property owners within the restricted areas to suffer damages. Bethea v. Lockhart, Tex.Civ.App., 127 S.W.2d 1029, and Scaling v. Sutton, Tex.Civ.App., 167 S.W.2d 275.” See also Hooper v. Lottman, 171 S.W. 270 (El Paso Tex.Civ.App., 1914, no writ hist.); Hemphill v. Cayce, 197 S.W.2d 137 (Fort Worth Tex.Civ.App., 1946, no writ hist.); Arrington v. Cleveland, 242 S.W.2d 400 (Fort Worth Tex.Civ.App., 1951, writ ref.); Walker v. Dorris, 206 S.W.2d 620 (Fort Worth Tex.Civ.App., 1947, ref., n. r. e.).

The Ridglea Hills Addition is one of the finest and most exclusive residential areas in Fort Worth. It is presently comprised of over 460 lots. It has a remarkable history as a residential area. Under this record there have been no business houses or business operations in the area nor have there been any apartment houses, duplexes or other multiple family occupancy in the area. To date the single family restrictions have not been violated in any way.

The record further reflects that a majority of the residents of the Addition, including the appellants, have openly and continuously objected to apartment usage in the Addition and that such objections were known to the appellees. In March of 1960 Mrs. Tilley mailed a letter to all of the owners of the Addition in which she detailed the history of the ownership and the plans for developing lots 8, 9 and 10 in Block 47. There was some evidence to the effect that signs had been placed on the property as to its intended use but they were removed. In May of 1965, the appel-lees instituted a class suit seeking the same relief the appellants now seek. The appel-lees in their suit alleged that certain owners in the Addition, including Williams, “ * * have contended and continue to contend that the construction of apartments on said property is prohibited; that any and all restrictions relating to residences in the Ridg-lea Hills Addition are applicable to apartment buildings, if such be built on said property; and that no building, whether apartment or residential, can be built within 30 feet of any dedicated roadway which adjoins said property. Said persons are clouding the title to said property and are threatening to litigate these questions.”

Thus, appellees’ knowledge of the continued opposition of appellants to the proposed apartment usage was confirmed. After the issues in appellees’ suit were joined, they took a non suit and appellants immediately filed this suit.

We are unable to find any acts or omissions on the part of the appellants which were relied upon in any material respect by the appellees which would invoke the doctrine of estoppel or which would constitute waiver or laches on their part.

The defense of laches requires proof that the appellants’ delay in filing suit produced an injury or damage to the appellees. Arrington v. Cleveland, supra. We are unable to find such proof.

See 22 Tex.Jur.2d beginning at p. 668, § 8, setting forth the elements of estoppel none of which have any application to the facts revealed by this record.

For the reasons stated the cause is reversed and rendered in favor of appellants.


source: Caselaw Access Project

author: HIGHTOWER, Chief Justice.

license: Public Domain

text:
    T. J. WEST, Appellant, v. SOUTHERN LIFE & HEALTH INSURANCE COMPANY, Appellee.
    No. 6863.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 10, 1966.
    Daylee Wiggins and Alvin Wiggins, Beaumont, for appellant.
    Barnes & Barnes, Beaumont, for ap-pellee.
   HIGHTOWER, Chief Justice.

Appellant West brought suit on two insurance policies that provided for death benefits for his wife in the amount of $500.00 each. Appellee timely filed answer of non-payment of premiums and general denial. It subsequently filed its motion for summary judgment which was granted; hence, this appeal therefrom.

The motion for summary judgment with supporting affidavits was filed February 28, 1966. This motion was set for hearing at 9:00 a. m. on the 21st day of March, 1966. A copy of said motion was served upon appellant on March 1, 1966. At 9:00 a. m. on the date of hearing, appellant filed its reply and opposing affidavit to said motion. It is conceded by counsel for both parties that said reply and opposing affidavit, had they been considered by the court, raised an issue of fact.

The gist of appellant’s contentions on this appeal is that the sole reason for the refusal of the trial court to consider his opposing affidavit was because the court was of the opinion that since the reply and affidavit was not filed prior to the date of the hearing, the same must be stricken and not considered because it did not follow the requirements of Rule 166-A, Texas Rules of Civil Procedure (Sec. c), which provides:

“The adverse party prior to the date of hearing may file opposing affidavit.”

He asserts that because of the court’s misconception of the purport of such rule it abused its discretion in refusing to consider its reply and affidavit.

If appellant is correct that the action of the trial court was due solely by reason of its erroneous construction of Rule 166-A, supra, we would be inclined to sustain his contentions. We think this would be proper because of the analogous question before us to that of the situation where a trial court, after a jury verdict, grants a motion for new trial solely in the erroneous belief that the answers of the jury were in irreconcilable conflict. In such case, mandamus would lie to compel the trial court to enter judgment on the verdict if an appellate court found that such irreconcilability did not exist.

The record before us fails to sustain appellant’s contentions. At the close of the hearing, the court made the following comments :

“THE COURT: Gentlemen, these motions for summary judgments are way too technical, but that is the íaw. As I understand the law, I have a duty to perform that takes more courage than I have to do it. My sympathy is with the Plaintiff, if I have any. I am not supposed to have any, but being human, I do. If I follow the law, I would have to grant the summary judgment. Therefore, it’s granted.”

These comments of the court do not show that the trial court judgment was made based solely on an erroneous construction of the law. Moreover, the judgment itself, omitting formal parts, recites:

“The Court further finds that no excuse exists for the Plaintiff’s failure to file a Reply and opposing Affidavits prior to the time set for the hearing; that the Plaintiff has failed to exercise diligence in the late filing of said Reply and that the said Reply and Affidavit attached thereto are not timely and may not be regarded as an opposing affidavit; * * * Ordered * * * that the Plaintiff’s Reply to the Defendant’s motion for summary judgment, together with attached Affidavit, be stricken as not having been filed timely * * * ”

Although these excerpts from the comments of the court and the judgment may indicate that the court thought it could not consider said reply and affidavit, yet it is also clear that the court refused the same for failure of appellant to use diligence, after 20 days’ notice, in filing said instruments at an earlier date. Under the circumstances, the question of diligence was a matter resting in the sound discretion of the court and we cannot hold that said discretion was abused.

Judgment affirmed.


text:
    L. Katherine BUCHER et al., Appellants, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 16770.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 2, 1966.
    Bagby & Ross, and Albert C. Ross, Arlington, for appellants.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and John McBryde, Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This appeal is from summary judgments granted the defendant in a suit filed against it to recover for fire loss in which suit all plaintiffs were joined. The primary question to be resolved is whether or not a change in ownership of the insured property occurred within the meaning of the insurance policy in question, when the plaintiffs (sellers) entered into a contract of sale and the purchasers were thereafter in possession of the property and had partly performed under the contract by making the down payment and at least one monthly payment.

The policy of insurance issued by defendant on March 20, 1964, covered an apartment house located at 505 St. Louis Street, Fort Worth, Texas, and contains the provision that “Unless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring * * * (d) following a change in ownership of the insured property; * *

The trial court concluded that a change of ownership did occur, within the meaning of the above quoted provision prior to loss, and thus the insurance company was relieved of liability.

The appellants contend the court erred in so holding because the contract in question was executory in nature and did not pass either legal or equitable title so as to constitute a “change in ownership”.

We affirm.

The following facts are undisputed: The property covered by the policy is identical to that covered by the contract of sale.

At the time the policy in question was issued and became effective the full legal and equitable ownership of the property was vested one-half in plaintiff L. Katherine Bucher and one-half in her stepchildren, the other plaintiffs. Plaintiffs continued to hold such legal and equitable ownership until the contract of sale was entered into on May 1, 1965.

The contract of sale affecting the property was entered into by and between Mrs. Bucher and her stepchildren as “seller,” and Medardo and Linda Villarreal as “purchasers”. Charles H. Bucher, now deceased, in signing the contract of sale, was acting for himself and as agent and attorney in fact for his brothers and sisters. Thus, all plaintiffs in this cause were parties to and were bound by the sales contract. Prior to the execution of the contract of sale the Villarreals had rented and occupied the premises involved at $60.00 per month.

The contract of sale executed by the parties provided for a down payment of $60.00 and monthly payments of $60.00 each to commence on June 1, 1965, and to continue until the purchase price of $6,000.00 was fully paid. The unpaid balance of the purchase price was to be evidenced by a promissory note bearing interest at 6% per annum. The purchasers were to pay all future taxes and were to secure an insurance policy with loss payable clause in favor of appellants. In case of default the appellants at their option could declare the full amount of the note due, cancel the agreement and apply all past payments as liquidated damages for rent. It is undisputed that the promissory note was never executed and delivered, the policy of insurance was never obtained and that the appellants did not prior to the fire declare the full amount due and cancel the agreement under the default provisions of the contract. According to deposition testimony of Mrs. Bucher the property belonged to the Villarreals for all purposes except that they owed money on it. The Villar-reals “got the rent and paid the utilities”. They were in full possession of the premises and had made repairs. She had not declared any default under the contract because Villarreal “was making his payment except for the insurance” and that as far as she was concerned the contract was still in force and effect when the fire occurred.

The Texas courts have uniformly held that a contract of sale such as is here involved does effect a change of ownership. Under such a contract the purchaser becomes full beneficial or equitable owner of the property. All that remains in the seller is a bare legal title, more in the nature of a security title to guarantee payment of the purchase price than anything else. The rule is summed up in 58 Tex.Jur.2d 497, 499, § 267, under the heading “Vendor and Purchaser,” as follows: “The purchaser, however, acquires an equitable title or interest in the property from the date of the contract, or in any event from the time when he enters into possession, until his interest ripens into a legal title by an absolute conveyance or, where the transaction consists in a conveyance and a reserved lien, by payment of the price or performance of the contract. The passing of the equitable title is a matter of law and not a matter of stipulation in a contract.”

The paramount title or ownership under a contract of this kind is in the purchaser, or, as stated in § 268, of the same text at page 500: “As between the purchaser and third persons, the paramount title is in the purchaser, notwithstanding the retention of a vendor’s lien.”

It is clear from the preceding quotations and other controlling authorities that the legal effect to be given to a long term contract of sale is essentially the same as that to be given to a deed with retained vendor’s lien, and the rights and obligations of the parties are substantially the same. Peters v. Clements, 46 Tex. 114.

The courts have recognized the rule that the equitable title passed when the contract was made or in any event from the date the purchaser takes possession and that “the loss must be borne by the purchaser.” Leeson v. City of Houston, 243 S.W. 485 (Tex.Com. of App., 1922); Rives v. James, 3 S.W.2d 932 (San Antonio Civ.App., 1928, dismissed).

An article discussing the legal effect of a contract of sale is found in 11 S.W.L.J., 384, 387. It notes a 1956 Court of Civil Appeals decision wherein the following holding was made: “Under an executory contract to purchase land, the purchaser acquires an equitable title to the realty with the exclusive right to sue for damages to the freehold.”

After analyzing other decisions the author concludes: “It would appear that the principal case is but an extension of the earlier decisions which held that equitable title passes immediately upon entering into a land contract.” The author recognizes the distinction which has been made in Texas decisions between equitable right and equitable title, and concludes that the distinction is meaningless, except in one respect which is immaterial here.

Directly in point on the case at bar is the holding of the Kentucky Court of Appeals in Cottingham v. Fireman’s Fund Ins. Co., 90 Ky. 439, 14 S.W. 417, 9 L.R.A. 627 (1890), where the court was considering existence vel non of coverage following a contract of sale between the insured and third party under a policy which said that no coverage would exist if the property was sold or transferred. In the course of holding that coverage did not exist, the court said: “But where, as in this state, the beneficial interest is passed to the vendee of the equitable title, the contract of insurance is vacated by such sale. The vendee in such case assumes all risk of loss or destruction of the property. Such risk is no longer with the vendor. Hence, the insurer’s contract of indemnity against the destruction or damage of the insured property is at an end.”

For other Texas cases involving the legal effect of a sales contract similar to the one here involved we cite: Ingram v. Central Bitulithic Co., 51 S.W.2d 1067 (Waco Civ.App., 1932, refused), which quotes with approval the holding in Leeson v. City of Houston, supra; City of Garland v. Wentzel, 294 S.W.2d 145 (Dallas Civ.App., 1956, ref., n. r. e.). The latter case involved a forfeiture clause as did the case of Shambaugh v. Moore, 54 S.W.2d 211 (Beaumont Civ.App., 1932, refused). In the Shambaugh case as here the fore-feiture clause was optional. See also Dimmitt Elevator Co. v. Carter, 70 S.W.2d 615 (Amarillo Civ.App., 1934, no writ, hist.); Taylor v. Herrin, 127 S.W.2d 945 (Galveston Civ.App., 1939, no writ, hist.), and cases cited therein; Fire Ass’n of Philadelphia v. Perry, 185 S.W. 374 (Galveston Civ.App., 1916, dismissed); Whitehead v. Hartford Fire Ins. Co., 278 S.W. 959 (Amarillo Civ.App., 1926, no writ, hist.); Rio Grande Nat. L. I. Co. v. Hardware Dealers Mut. F. I. Co., 209 S.W.2d 654 (Amarillo Civ.App., 1948, ref., n. r. e.).

Under the authorities cited we are of ,the opinion that a change of the ownership did occur within the meaning of the policy provisions and that no coverage existed on the date of the fire.

The appellants rely primarily upon the holding in Currie v. Burgess, 132 Tex. 104, 120 S.W.2d 788 (Galveston Civ.App., 1938 (123 S.W.2d 440)), judgment of the trial court was reversed and rendered by the Court of Civil Appeals in conformity with answers to questions certified; Walters v. Century Lloyds Insurance Company, 154 Tex. 30, 273 S.W.2d 66 (1954); Tashnek v. Hefner, 282 S.W.2d 298 (Galveston Civ.App., 1955, ref., n. r. e.); Campbell v. Chaney, 125 Tex. 201, 82 S.W.2d 638 (1935), and other authorities of similar import which in our opinion have no application to the facts of this case.

Texas courts recognize that a contract provision which voids the coverage in the event of a change in ownership is a valid and enforceable one, and relieves the insurance company of liability if a change of ownership occurs. Continental Ins. Co. v. Michaels, 13 S.W.2d 465 (Texarkana Civ.App., 1929, no writ hist.); Lowe v. Michigan Fire & Marine Ins. Co., 236 S.W.2d 168 (Beaumont Civ.App., 1950, refused).

Under the facts of this case the appellants did not exercise the option to rescind under the default provisions of the contract, either because of the failure of purchasers to deliver the note or to obtain the policy of insurance and “Recission is not the automatic result of default by the vendee * * 59 Tex.Jur.2d 17, 18, § 468. In the same text see also § 471 at pages 21-22; § 532, pages 79-81; § 554 at page 102; § 555 at page 103; and § 560 at pages 106-107 and cases cited thereunder. In the light of the authorities we find no basis for a claim of forfeiture.

The testimony of Mrs. Bucher makes it clear that the parties had simply ignored the requirement that a note be delivered and had therefore waived it. It is not required or essential that an indebtedness under a contract of sale be evidenced by a promissory note. The language of the contract itself discloses the indebtedness, and is sufficient evidence thereof to enable the sellers to enforce it. In Ingram v. Central Bitulithic Co., supra, it appears the contract was the sole evidence of the purchase money indebtedness.

In summary we have concluded that the sales contract was in full force and effect when the fire occurred. That such contract, when considered together with part performance thereunder and possession of the property brought about a change of ownership within the meaning of the policy so as to relieve the insurance company from any liability for the loss which occurred following that change of ownership. The change of ownership was real and not merely nominal or fictitious. Once equitable title vested, as it did, all risk of loss was shifted from plaintiffs to the Villar-reals. All points of error are overruled. The judgment of the trial court is in all things affirmed.


author: GREEN, Chief Justice.

text:
    L. P. LEIBOWITZ, Appellant, v. SAN JUAN STATE BANK, Appellee.
    No. 251.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1966.

      L. P. Leibowitz, pro se.
    Morgan K. Talbot (of Ewers, Toothaker, Ewers, By field & Abbott), McAllen, for appellee.
   OPINION

GREEN, Chief Justice.

This appeal is from a judgment entered by default. Appellee San Juan State Bank filed suit on January 27, 1966, in the 93rd District Court of Hidalgo County against L. P. Leibowitz on a promissory note. The petition described the note in detail, set out the date of its execution, September 6, 1960, the total principal amount of $2,-392.61, method of payment in monthly installments of $50.00 each beginning September 25, 1960, interest rate, and provision for attorney fees, and the amount of credits to which defendant was entitled. Service of citation was had upon the defendant in Pharr, Texas, by Hidalgo County Precinct 3 deputy constable G. Quintanilla. The return, which was filed in the district clerk’s office February 5, 1966, recites that service was had on appellant at 8:00 P.M. on January 31, 1966, requiring defendant to appear in court by filing a written answer at or before 10 o’clock A.M. the Monday next after the expiration of 20 days from service. According to the return, appearance day would fall on Monday, February 21. On February 21, appellee took default judgment on the note as sued on, the decree being signed by the trial judge on that date.

On February 28, 1966, appellant filed his sworn written answer with the district clerk, which pleading contained special exceptions to the petition, a general denial, and pleas of limitation and failure of consideration. He also, on that same day, filed a sworn motion to set aside the default judgment and grant a new trial. In this motion appellant alleged that the citation was served on him on Tuesday, February 1, 1966, so that appearance day was Feb-uary 28, 1966; that he had timely filed his answer and was not in default. He further pled that he had a good and valid defense to plaintiff’s cause of action, in that same was barred by the statute of limitations, and also that the note was without adequate consideration. Appellant and deputy constable Quintanilla testified at the hearing on the motion. The original of the citation showing service to have been had January 31, 1966, was introduced in evidence by appellee. Appellant testified that he was served by the deputy about 8:30 P.M. on Tuesday, February 1, 1966, and that he was not in Hidalgo County on January 31. He introduced in evidence as his exhibit No. 1 the copy of the citation served on him, which showed the following notations on the reverse side:

Deputy constable Quintanilla, placed on the stand by appellee, appeared not to be sure when he served the citation on appellant, except that he remembered that it was on a Monday. His testimony with reference to dates was so indefinite and confusing as not to be very reliable. If his evidence that he served the citation on a Monday is correct, it would necessarily have been January 31, since the citation was issued January 27, and the original containing the certificate of service was filed February 5, and the date of service as set by appellant was Tuesday, February 1. He recognized appellant’s exhibit No. 1 as being the copy of the citation delivered by him to appellant, and stated that the signature under the statement that the date of delivery of the citation to appellant is Feb. 1966, was his, and that he wrote such signature. He stated that he did not write the words “Feb. 1966”; that such was on the instrument when it was given him, and that Mr. Bales, the constable, had probably placed it there. He did not remember how the “1-31-66” got on the copy given by him to appellant; he thought it was already there when he received the paper from Bales.

The trial court did not pass upon this motion for a new trial and the testimony introduced at the hearing, but permitted the motion to be overruled by operation of law.

In our opinion based on the pleadings of the parties and the evidence introduced at the hearing on defendant’s motion, the default judgment should be set aside, and a new trial granted, under the rule laid out by the Supreme Court in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, p. 126 as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial set up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

See also for a few of the many cases citing with approval the opinion in Craddock v. Sunshine Bus Lines, supra; Hanks v. Rosser, Tex.Sup.Ct., 378 S.W.2d 31; Ivy v. Carrell, Tex.Sup.Ct., 407 S.W.2d 212, opinion rendered October 5, 1966; City of San Antonio v. Garcia, Tex.Civ.App., 243 S.W.2d 252, writ ref.; Smith v. Hillsboro State Bank, Tex.Civ.App., 253 S.W.2d 897; Iley v. Reynolds, Tex.Civ.App., 319 S.W.2d 194, writ ref. n. r. e.; Box v. Associates Investment Company, Tex.Civ.App., 352 S.W.2d 315; Reynolds v. Looney, Tex.Civ.App., 389 S.W.2d 100, writ ref. n. r. e.; Black v. Johnson, Tex.Civ.App., 404 S.W.2d 382.

It is to be noted that this case is before us on direct appeal from the judgment sought to be set aside, and the stricter rules applicable to a bill of review are not controlling. Ivy v. Carrell, Tex.Sup.Ct., supra.

It is clearly established from the evidence on the hearing on defendant’s motion that his failure to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident. It is not necessary that we determine the fact issue whether he was actually served on January 31 or February 1. We recognize the rule that where the officer’s return on a citation duly filed in the papers of the case is regular, it may not be impeached by the uncorroborated testimony of the party shown by the return to have been served, and that the proof of impeachment must be clear and satisfactory. Cortimiglia v. Miller, Tex.Civ.App., 326 S.W.2d 278; citing Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908; Harrison v. Sharpe, Tex.Civ.App., 210 S.W. 731, err. ref.; Randall v. Collins, 58 Tex. 231; Joseph v. Kiber, Tex.Civ.App., 260 S.W. 269; San Antonio Paper Co. v. Morgan, Tex.Civ.App., 53 S.W.2d 651, error dism.; Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442. See also Wright v. Austin, Tex.Civ.App., 175 S.W.2d 281, writ ref. w. o. m.; Sgitcovich v. Oldfield, Tex.Civ.App., 220 S.W.2d 724, writ, ref. However, in addition to the appellant’s testimony that the date of service was February 1, 1966, we have the undisputed evidence, coming from appellant and the officer serving him, that defendant’s copy of the citation at the time it was delivered to him by the officer stated, over the officer’s signature, that the date of delivery of the citation and copy of the petition to appellant is Feb. 1966. Appellant testified, and there is no contrary evidence, that he relied on the February date of service, and understood that as a result thereof, his answer was not due until February 28, which was the Monday next after 20 days from said date. Any mistake or accident in the notation placed on defendants copy of the citation was that of the officer, and not of appellant.

Rule 106, Texas Rules of Civil Procedure, provides in part that “Unless it otherwise directs, the citation shall be served by the officer delivering to each defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto.” (Emphasis is ours) We agree with the interpretation which has been placed on the emphasized portion that the failure of the officer serving a citation to endorse the date of delivery upon the copy delivered to defendant does not affect the jurisdiction of the trial court to render a default judgment, but if the defendant seasonably moves to set aside the default judgment and shows that he was in fact injured or misled by the officers failure to endorse the date of service upon the copy the trial court should set aside the default and give the defendant an opportunity to appear and have a trial on the merits. Commentary following Rule 106, Vol. 1, Vernon’s Texas Rules Civil Procedure, p. 364-365; 6 Tex.Bar Journal 20; 8 Tex.Bar Journal 31.

In the present instance, the copy served on defendant not only did not have the January 31 date of delivery endorsed on it, it had over the signature of the serving officer a date endorsed as the date of delivery which would have prevented service being ripe on the date the default judgment was entered. Service of the citation on any date in February would not have authorized the rendition of the default judgment on February 21, since 20 full days must elapse between the date of service and the Monday on which answer is due, excluding the day of service. Rule 101, T.R.C.P.; 5 Tex.Bar Journal 95; 8 Tex.Bar Journal 7.

The next requirement outlined in Craddock v. Sunshine Bus Lines, supra, is that the motion must set up a meritorious defense. The Texas Supreme Court in Ivy v. Carrell, decided October 5, 1966, supra, quoted with approval from and reaffirmed the principles of law laid out in Craddock. The opinion explains that the language used in Craddock with reference to the motion setting up a meritorious defense does not mean that the motion must merely allege that the defendant “has a meritorious defense;” it must allege facts which in law would constitute a defense to the cause of action asserted by plaintiff, and must be supported by affidavits or other evidence proving prima facia that the defendant has such meritorious defense. The court held that since the motion for new trial in that case did not contain allegations of facts which in law constitute a meritorious defense to plaintiff’s cause of action, and the testimony given on the hearing did not prove such a defense prima facia,* the trial court did not err in overruling the motion.

In our case, Leibowitz plead in his motion as a defense to the plaintiffs cause that same was barred by the statute of limitations. Plaintiff’s petition was before the court, and on the hearing defendant pointed out that the petition showed on its face that the note, payable in monthly installments starting five years and five months before the suit was filed, was subject in part to the defense of the four year statute of limitations. In connection therewith, defendant testified to the fact that a part of the money sued for is for payments more than four years past due, both as to principal and interest. As stated in Ivy v. Carrell, supra, it was necessary only that defendant plead and prove a prima facia defense. If he did that, and met the other tests set forth in Craddock, he would be entitled to a new trial. In our opinion, the record shows that the defendant met the requirement of setting up, by pleading and proof, a meritorious defense.

The point is raised by appellee that the defense of limitation is not such a meritorious defense as is required to be shown under the rule of Craddock v. Sunshine Bus Lines. We believe that the following quotation from Fowzer v. Huey & Philp Hardware Co., Tex.Civ.App., 99 S.W.2d 1100, p. 1103, writ dism., which we approve, answers such contention:

“Is a plea of limitation a meritorious defense, or is it wholly technical and insubstantial? We are aware of some early decisions which seem to hold that a plea of limitation is not a meritorious defense and is not recognized in courts of equity to set aside a default judgment, Foster v. Martin, 20 Tex. 118, 119; Dowell v. Winters, 20 Tex. 793, 794; but we are in accord with the holding and authorities cited by the San Antonio Court of Civil Appeals, application for a writ of error dismissed by our Supreme Court, in Cain v. Thompson et al., 72 S.W.(2d) 339, 340, in which that court says: ‘The more recent, and, we think, the better, cases, have abrogated the rule. The modern judicial view is that the statute of limitations is one of repose, and that as a defense the statute is now classed as meritorious, and as much so as other valid defenses.’ ”

The motion was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to the plaintiff. It was actually filed on the very first day that, according to the endorsement of the officer on the copy delivered by him to defendant, a judgment could legally have been rendered by the court.

We hold that under the rules laid down by Craddock v. Sunshine Bus Lines, supra, and by Ivy v. Carrell, supra, as well as under the equities of the situation, the default judgment should be set aside, and a new trial granted. It is so ordered.

Reversed and remanded.

      . Appellant was not represented by a lawyer in any of the proceedings in the trial court. No lawyer appeared for him on appeal, either on his pro-se brief or oral argument.

       Emphasis ours.

      . This was not signed by the district clerk, whose name is printed on the form, or by any of his deputies. The original shows to have been filed in his office February 6, 1966.


author: PARKER, Justice.

text:
    Eugene PAYNE, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee.
    No. 6807.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 3, 1966.

      H. P. Wright, Port Neches, for appellant.
    O. J. Weber, Keith, Mehaffey & Weber, Beaumont, for appellee.
   PARKER, Justice.

Eugene Payne sued Hartford Fire Insurance Company to recover the proceeds of a fire insurance policy. The jury’s finding to the sole issue was:

“Special Issue No. 1
“Do you find from a preponderance of the evidence that Eugene Payne intentionally procured the burning of his house on August 1, 1962, for the purpose of collecting insurance?
“Answer We do’ or We do not’.
“Answer: We do!’

Upon the jury verdict, judgment was rendered that Payne take nothing. The parties will be designated by name or as in the trial court.

Plaintiff asserts error on the part of the trial court in overruling plaintiff’s special exception to Paragraph 6 of defendant’s second amended original answer. In such answer, defendant pleaded that the plaintiff was not entitled to recover because the fire which destroyed his building and contents was not accidental, but instead was a fire started either by the plaintiff himself or by his agent, or one acting under his direction and at his request, thus pleading the defense of arson. Supplementing this, defendant pleaded in Paragraph 6:

“For further and special answer herein, if such be.necessary, defendant would show that plaintiff has had a number of other fires occur to other property that he owns at other times and other places, and that proof of these other fires under the circumstances under which they occurred tie in with and go to show intent, identity and system with respect to the fire which is alleged to be the basis of the loss upon which this suit is brought.”

Plaintiff’s special exception to such paragraph was:

“Plaintiff specially excepts to Paragraph No. 6 of defendant’s second amended original answer, (then quotes the paragraph set out above), because:
(a) The matters alleged are completely immaterial and irrelevant to any issue in this cause and unless stricken will serve only to bring prejudice to bear upon the plaintiff in this case.
(b) This is an attempt to prove arson in the present case by showing that plaintiff had had other fires and there is no allegation or can there be that the prior fires were fraudulent.
(c) These allegations fail to specifically set out any particulars with regards to the alleged prior fires; they do not give the time, location, or any other particulars about the circumstances surrounding the same so that it is impossible for the Court to determine any probative value they might have, which they could not have in any event.
(d) Allegations of this nature cannot help but to bring prejudice to bear upon the plaintiff and unless there are allegations that the prior fires were fraudulent and the result of a criminal act, then any possible probative value is so greatly outweighed by the prejudicial harm that will be brought to bear that they should be stricken from the pleadings.
Of which special exception plaintiff prays judgment of the Court.”

This exception of plaintiffs was overruled by the trial court. On the same day such exception was filed, plaintiff filed a motion in limine stating “that he had had several fires prior to the fire loss made the basis of this suit, but would show they are completely immaterial and irrelevant to any issues in this case.” So, plaintiff and his counsel knew of the fires to which the defendant was referring. At the trial, plaintiff testified as to his prior fires, did not claim surprise, withdraw his announcement of ready or request continuance.of the case. The general rule is that prior transactions are irrelevant, immaterial and highly prejudicial and in violation of the well settled general rule that res inter alios acts are incompetent evidence, particularly in a civil case. The exception to such said- general rule is that wherever a prior plan, scheme, system, intent or design becomes rélevant in a civil case, evidence may be offered to establish such prior plan, scheme, system or design, which included the doing of the act charged as a part of its consummation. Texas-Osage Co-operative Royalty Pool, Inc. v. Cruze, 191 S.W.2d 47 (Tex.Civ.App. 1945, n.w.h.); 2 Wigmore on Evidence § 354:

“ * * * Where the act itself is conceded or otherwise proved, and the object is to negative inadvertence or accident, the recurrence of similar acts of firing by the defendant tends to diminish the possibility of an innocent explanation. Moreover, the principle of Anonymous Intent (ante, sec. 303) is recognized as being here occasionally of peculiar utility; i. e. the recurrence of a similar fire may tend decidedly to negative innocent intent, even though the author of the other fires is not shown; thus, the prosecution having negatived innocent intent in the present fire by whomsoever set, the defendant may be shown to have kindled it.”

Defendant’s pleading does not detail the particular circumstances of the prior fires that tie in with and go to show intent, identity and system with respect to the fire upon which the instant suit is based. Paragraph (c) of plaintiff’s exception goes directly to this point of generality. Each of the previous fires destroying plaintiff’s houses occurred in the early .morning when he and his family were absent subsequent to the removal of some of the personal effects of substantial value from each house, except one in which they never lived with each such fire and the fire under consideration occurring at a time when the plaintiff was in dire financial circumstances. In each previous instance he collected substantial money under a fire insurance policy. All of such circumstances were well known to the plaintiff. Plaintiff in no manner, except by this exception to the pleadings, availed himself of the discovery processes under T.R.C.P. such as deposition, request for admission, etc., by which the detailed facts in question could have been ascertained, if unknown to plaintiff. That the plaintiff knew all such circumstances is supported by his own testimony as to his prior losses of buildings by fire and collection of fire loss from insurance companies.

There is no showing that defendant’s pleading contained in Paragraph 6 caused the rendition of an improper judgment, and this point of error is overruled. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331 (S.Ct.1963); Rule 434, Texas Rules of Civil Procedure.

The trial court overruled plaintiffs motion in limine above referred to in which such motion is quoted in part:

“1. Plaintiff admits that he has had several fires prior to the fire loss made the basis of this suit, but would show that they are completely immaterial and irrelevant to any issue in this case. That to mention them in this cause would serve the sole purpose of bringing prejudice to bear upon the Plaintiff and would not aid nor be proper in the determination of any material issues in this case.
“WHEREFORE, premises considered, Plaintiff moves in advance that the Court instruct counsel for the Defendant, its witnesses and the Defendant not to refer nor elicit the above matters in any way and that such matters and evidence be stricken from the evidence in this cause prior to trial.”

The evidence ties in the prior fires and their recurrence not only to negative innocent intent on the part of Payne but show by circumstantial evidence a scheme, system, intent or design which the jury in this cjvil case could find to exist. Such motion in limine was properly overruled by the trial court.

Plaintiff’s point of error contending that the trial court erred in admitting testimony concerning prior fires destroying plaintiff’s property covered by insurance is overruled.

Under his first point the appellant complains that there was “no evidence” and insufficient evidence to support the jury’s answer to the sole issue presented to it for consideration. Plaintiff did not take any of the following procedural steps in the trial court: (a) motion for instructed verdict; (b) objection to the submission to the jury of such issue; (c) motion for judgment notwithstanding the jury’s verdict; and (d) motion to disregard the jury’s answer to such special issue. Since none of these procedural steps were taken by the plaintiff, his “no evidence” points cannot be considered on this appeal. In considering the insufficient evidence points all of the evidence is to be considered in determining whether the evidence is sufficient to support the jury’s finding to the sole issue in the case. A charge of fraud in a civil action, even though it involves the charge that a crime had been committed, as in this case, does not have to be sustained by evidence beyond a reasonable doubt as in a criminal prosecution. The presumption of innocence must be indulged. The burden was on the defendant to sustain its defense of arson by a preponderance of the evidence. The issue submitted to the jury was so framed. The presumption is against the loss by fire having been caused by the insured’s own wilful or intentional act. Arson may be established by circumstantial evidence.

Eugene Payne began building a frame dwelling house three miles north of Silsbee in 1959. The house was not completely finished at the time of the fire; the outside brick had not been laid; some of the inside panelling was not up. The brick was on the ground. Until a few months prior to the fire it had been occupied as his home. Defendant issued a Texas standard homeowner’s policy on such house for a period of 3 years providing for $20,000 coverage on the house, $8,000 coverage for unscheduled personal property within the house and $4,000 coverage for additional living expense for the insured in the event of loss. The house and its contents were destroyed by fire on August 1, 1962 while the policy was in full force. The actual cash value of the personal property in the house was $5,068.35. His additional living expense amounted to $100 per month and a reasonable time to rebuild would be 6 months. Plaintiff owed an indebtedness on this place slightly under $3,500. The foregoing facts were agreed and stipulated to by the parties. This fire occurred in the early morning hours, about 4:00 a. m., of August 1, 1962. There was an explosion and a fire. The color of the blaze was orange-red.

Plaintiff Eugene Payne testified he did not know what caused the fire. He and his family were not at home at the time. For several months prior to the fire, plaintiff and his family had been living at Dr. Copeland’s camp in Polk County. Before the fire he took an heirloom sewing machine, deep freeze, refrigerator, a stove, iron bedstead and mattress from this home at Sils-bee to Polk County. He admitted he was in Silsbee on Monday preceding the burning of his house early Wednesday morning. Plaintiff admitted he had been forced out of the building business in 1959 by his creditors; that he had a number of judgments against him; that he knew the fire was investigated by the National Board of Fire Underwriters, and understood it was also investigated by Dwayne Overstreet, the County Attorney of Hardin County. With respect to prior fires on property he owned, Payne testified that in 1959 a fire destroyed a house of his located on the same tract of land as his last house which burned in August of 1962; that he collected $5,000 insurance on the house that burned in 1959; in 1960 a fire destroyed a house he owned on which he collected $3,602.63 on an insurance policy covering that house; that about June 1960 he had a fire on an automobile, collecting on an insurance policy covering it. At the time of the fire his sole remaining substantial asset was this house that burned on August 1, 1962. He admitted that the only two people who would be paid any money from the insurance policy if the house burned was the mortgagee and himself. He admitted he had no gasoline in the house that burned.

The house and contents were a total loss. It was uncompleted, unfinished and overbuilt in the area where it was located. The evidence was that an overbuilt house and an unfinished house were difficult to sell.

Defendant contended that Melvin Graham was the person Eugene Payne procured to set fire to Eugene Payne’s house that burned on August 1, 1962.

The fire chief of Silsbee testified that in the last 4 years the fire department had been called to Eugene Payne’s house or his son’s house 5 or 6 times for grass fires, plus 2 fires at Payne’s son’s place and 2 at Eugene Payne’s houses. That the fire at Eugene Payne’s place on August 1, 1962 occurred at 4:14 a. m. The fire at another place of Eugene Payne’s was about 3 a. m. Mrs. Eugene Payne verified the circumstances as to time and total destruction by fire on houses owned by them.

Eugene Payne and Melvin Graham, who died as a result of injuries and burns received from the fire and explosion, had conferred by themselves for an hour in a back room of Graham’s tire store in the afternoon of either Monday or Tuesday at about 5:30 p. m. before the fire of 4 a. m. Wednesday morning. Melvin Graham’s business was not prosperous at the time of the fire. On Monday before the Wednesday of the fire, Melvin Graham was asked about a picnic on the next evening and he replied he had a deal but “we won’t be gone long”.

Plaintiff called James S. Conner as a witness. He was the ambulance driver on August 1, 1962 who went to Melvin Graham’s house in the early morning hours to pick up Melvin Graham, who was badly burned. Melvin Graham walked out of his house, lay down on the cot and they put him in the ambulance. On the way to the hospital Melvin Graham asked his wife, Doris Jean Graham, who had the kids and if Mama Payne was in the house. Plaintiff offered this as part of the res gestae, contending that it was not the witness speaking but the whole circumstance: “Here is a man who is badly burned, certainly under severe pain, on the way to the hospital in the ambulance extemporaneously speaking after the accident was over, so it would be a res gestae statement.” The court admitted the evidence. The admission of evidence of res gestae is usually left largely to the judicial discretion of the trial court. Keystone-Fleming Transport Inc. v. City of Tahoka, Tex.Civ.App., 315 S.W.2d 656, wr.ref’d, n. r. e. These declarations were made under circumstances raising a reasonable presumption that they were spontaneous utterances of thoughts brought about or springing out of the transaction and so soon thereafter as to exclude any presumption that they were results of premeditation or design. Therefore, they were admissible as res gestae. Pacific Mutual Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709; Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868, 869 reversing Tex.Civ.App., 145 S.W.2d 300; City of Houston v. Quinones, 177 S.W.2d 259, 142 Tex. 282 reversing Tex.Civ.App., 172 S.W.2d 187.

In the emergency room of the hospital where Melvin Graham and his wife had been taken in the ambulance, Kenneth Graham, the brother of Melvin Graham, testified Doris Jean Graham made the statement below:

“Q Would you tell us what Doris Jean told you?
A She told me that Melvin had taken a bribe from the Paynes to do this job, ■ and she immediately told me not to tell anybody about what she had just told me.”

This testimony was not only admissible to impeach Doris Jean Graham’s testimony denying she ever made such a statement but was proof of the truth of her statement as part of the res gestae. After seeing the disaster, knowing her husband was in serious condition, going with him in the ambulance and, thence, to the emergency room, her statements were a spontaneous utterance of thoughts created by and springing out of this disastrous fire, excluding any presumption they were the result of premeditation or design. Both statements are considered by this court as proof of the truth of the matters stated. Plaintiff did not object to this statement by Doris Jean Graham made to her brother-in-law, Kenneth Graham. It will be noticed that she did not state “My husband told me he was bribed”, but her statement is: “that Melvin had taken a bribe from the Paynes to do this job.”

The mother of Melvin Graham testified that on Tuesday she went to the store belonging to Melvin Graham. There she saw her son, Melvin, talking to Eugene Payne at about 5 :30 in the evening. The mother of Melvin Graham further testified that her son, Melvin, never seemed to have any money. His financial condition was not good and he told his mother he was supposed to get a good-sized check before long that ought to take care of everything. Before the fire the mother of Melvin Graham went with her daughter-in-law, Doris Jean Graham, to look at a new automobile her daughter-in-law wanted to purchase.

Doris Jean Graham testified that before the fire she had talked with her husband, Melvin Graham, about purchasing a new air-conditioned car and building a new den. She testified that after the fire she got a new air-conditioner for her car. On the night of the fire her husband, Melvin Graham, heard some noise and got up to see what it was all about; that they were awake before they heard the noise and had smoked a cigarette. She went as far as the door when Melvin went to investigate this noise; he told her to latch the screen; that Melvin anticipated there was someone out there, did not take a gun but took a light. When her husband went to investigate the noise he put on some working clothes that he had used painting. She heard a “swish of air” followed by this explosion and saw the fire as she was standing inside the screen of her front door. She did not know what Melvin did when he went into the house. She did not hear anything prior to hearing a loud explosion. The entire Payne house seemed to blaze when the explosion occurred. She saw her husband, Melvin, pick himself up and return to the house, she unlatched the screen, let him in, helped him take off his clothes, put vaseline on his face, put his burned and torn clothes in the washing machine, helped him put on something else to wear, went with him in the ambulance to the hospital. She denied that she had ever made a statement to Kenneth Payne or anybody else that her husband was bribed by Eugene Payne to start the fire that destroyed Payne’s house. She admitted that there was lots of talk in that neighborhood about Payne making a living out of burning houses he owned and collecting the insurance. She denied that she was drinking whiskey that night. She admitted her children were not at their home the night of the fire but were at her mother’s. She admitted that she phoned her father to get the discarded clothes of Melvin’s and take them out of the house. This clothing of Melvin Graham was found under some tires in the garage of Doris Jean Graham’s father by Dwayne Overstreet. They were placed in a can, taken to Houston, analyzed by an expert and found to contain gasoline. Considering the fact the clothes had been placed in water, there was an unusual amount of gasoline found in such clothes, according to this expert.

The mother of Melvin Graham testified her son was ordinarily a calm person. That on Monday before the fire her son was very nervous and upset. On the next day, the condition of her son, Melvin, was worse. Without doubt, Melvin Graham was not in good financial condition. Doris Jean Graham had whiskey on her breath in the emergency room of the hospital.

Mrs. Ruth Geisendorf lived about half a block from the Payne house. She was awakened by the explosion which was loud. Her bedroom was lighted all over from the light of the fire. It was the Payne house on fire. The smoke was black; the flame was large and it seemed to be orange and red. Within 5 minutes the house was burning so that no one could go near it. It was night.

Kenneth Graham, Melvin Graham’s brother, also testified that he and Melvin had been painting a room in Melvin’s house prior to the fire; that they used a water base paint and did not clean it up with gasoline. He had worked for his brother in his tire shop.

Malcolm R. Williams, an expert arson investigator with the National Board of Fire Underwriters, and Hugh Keepers, a chief inspector of the Liquified Petroleum Gas Division of the Texas Railroad Commission, each qualified as experts in their field.

Hugh Keepers, the chief inspector of the Liquified Petroleum Gas Division of the Texas Railroad Commission, was a witness. His investigation began August 1, 1962 at 5:30 p. m. at the scene of the fire. He found the house completely gone except unburned portions of the wall. The north wall was away from the original structure some 8 feet from the original foundation with the inside of the wall facing the sky. The door was about 50 feet from the house. It had an impression from something on it. He found no evidence that the door hit Mr. Graham, indicating to him that he was inside the house when the explosion occurred. He found skin indicating that Melvin Graham had been blown about 59 feet away from the dwelling. Later he learned that a liquid was distilled from the clothing of Melvin Graham, was tested and found to be gasoline. He accompanied Mr. Overstreet and was present at the time this test was made. He checked with the local fire marshal’s files and found that there had been a number of fires in the general area, by the same owner, Mr. Payne, and that these fires had been at night when the houses were under construction or unfinished in each case. In each case, the financial status of the owner was poor. From eye witnesses he obtained information that there was a swish of air followed by an explosion, characteristic of gasoline explosions. There was an instantaneous development of the flame immediately following the explosion according to Ruth Geisen-dorf and Doris Jean Graham. It was his opinion that gasoline had been spread inside the house sufficient in amount to produce this kind of explosion. The front door being scorched but not burned indicated to him that it was in a closed position at the time of the explosion. In his opinion, if Melvin Graham had stepped inside the door, then the door was closed, for if he had been outside the house and behind the door this would have offered some protection to him against the fire and against burns. The door was substantially intact after being blown out from the house. Graham’s burns were extremely bad. Keepers found several 5-gallon cans in the area, but only one with a perforated bottom. He found a kitchen outlet of the butane system with the valve intact in the “off” position. He checked the water heater butane outlet and it was in “on” position. He checked the butane tank and it contained a mixture of butane and propane which had been odorized. The records of those supplying the butane tank showed on February 15, 1962 it had 90 gallons. When he examined the tank, it contained 65 gallons. He considered the water heater would have consumed 25 gallons from February 15, 1962 to August 1, 1962. Keepers was advised that the clothing of Melvin Graham contained gasoline. He expressed his opinion that the fire was a gasoline fire and not of any other petroleum product and not butane; that it was incendiary and that Melvin Graham was involved in the fire.

Malcolm Williams testified he was employed as an arson investigator for the National Board of Fire Underwriters; that he conducted an investigation of this fire, finding that the house was completely destroyed except for portions of a back wall which was lying with the inside facing to the sky; that this was an explosion from gasoline fumes which are lighter than air which, when exploded, would have the greatest force at the ceiling and force the upper part of the wall out — that the converse would be true as to a butane explosion; that characteristics of a gasoline or petroleum product fire are heavy, black smoke and orange-red flames. It was the opinion of Malcolm Williams as an expert arson investigator that the fire at Eugene Payne’s place was caused by gasoline or petroleum products other than butane; that based upon his experience in the field of arson that this fire at Eugene Payne’s place on August 1, 1962 was of incendiary origin; that his investigation eliminated any possibility of pyromaniacs around the Payne place or any people with grudges against the Paynes; that in his expert opinion the fire was procured by Eugene Payne because he was in financial difficulty.

Arnold Williams, the admittedly qualified expert in chemical analysis, testified that the substance obtained from the clothes that Melvin Graham was wearing at the time of the fire was a petroleum base naptha, probably motor gasoline, and was definitely not paint, kerosene, turpentine, paint thinner, lacquer thinner, or paint solvent.

The above evidence supports the jury’s finding that Eugene Payne intentionally procured the burning of his house on August 1, 1962, for the purpose of collecting insurance. Mott v. Spring Garden Ins. Co., 154 S.W. 658 (Tex.Civ.App.1913, n.w.h.); Williams v. Bankers Fire & Marine Ins. Co., 277 S.W.2d 742 (Tex.Civ.App.1955, wr.dism’d). Plaintiff’s contention that the evidence is insufficient to support the answer of the jury to the sole issue in the case is overruled.

Plaintiff’s points of error 5 and 6 are as follows:

“5. The Court erred in overruling Plaintiff’s motion to strike from the evidence the clothing of Melvin Graham, the material found in such clothing and the testimony concerning the same, and to instruct the jury not to consider such evidence.
“6. The Court erred in overruling Plaintiff’s motion to strike the testimony of the defendant’s expert witnesses that were based upon evidence given to them by the Deputy State Fire Marshal.”

Under V.A.T.S. Insurance Code, Art. 5.46, the State Fire Marshal may not testify in a civil suit nor shall the result of any such investigation be given in evidence upon the trial of any civil action upon a policy of insurance. The State Fire Marshal, William Alvin Schmidt, did investigate but was not allowed to testify. Points of error 5 and 6 were based upon the contention that in the investigation of the state fire marshal he discovered evidence which was admitted into evidence upon the trial. The same facts were ascertained by Dwayne Over-street and by Malcolm Williams. Over-street and Schmidt at the same time found the clothing that Melvin Graham was wearing when he was burned. Overstreet testified he got the clothes from Graham’s father-in-law. Overstreet said he took the clothes to the crime lab in Houston, Texas, and that a substance was distilled out of them. The clothes were introduced into evidence with Overstreet explaining where the clothing was burned. Neither Overstreet nor any other witness testifying were under the control of the state fire marshal. The state fire marshal testified that the county attorney Overstreet did not work under his direction or control nor did Malcolm Williams with the National Board of Fire Underwriters, nor did Hugh Keepers of the Texas Railroad Commission, Liquified Petroleum Gas Division; that each of them made their own investigation, though they worked together on occasion when they were all there but that at such times the fire marshal was not controlling their actions nor did he have any authority to do so. Malcolm Williams testified that he did not work under or with or give his report to the state fire marshal of Texas. It is apparent that Hugh Keepers worked for the Texas Railroad Commission. The motion in limine to exclude the testimony of Alvin Schmidt was granted by the trial court. There is no evidence that Over-street was acting for the state fire marshal. There is no evidence that the state fire marshal was requested by the county attorney or by the defendant to investigate this fire. The fact that Overstreet and the state fire marshal, each conducting his own independent investigation, happened to work together at times did not make Overstreet’s testimony inadmissible. Points of error 5 and 6 are both overruled.

Plaintiff also contended that it was error for the trial court to admit the testimony of the witness, Malcolm Williams, to the effect that it was his opinion that Melvin Graham set this fire at the special instance and request of the plaintiff Eugene Payne over proper objection. In the trial court plaintiff objected to the opinion of Malcolm Williams upon the sole ground that it was based purely on conjecture. Plaintiff in his point of error, however, contends that it invades the province of the jury. This court held in Hooten v. Dunbar, Tex.Civ.App., 347 S.W.2d 775, the party must stand or fall upon the objection that is made in the trial court. Further, Malcolm Williams was a qualified expert in the field of arson. He had facts before him upon which to base his opinion. Although there are opinions to the contrary, the more recent opinions hold that an expert witness’ opinion is admissible even though his answer embraces the very issue on trial, as against an objection that it invades the province of the jury, since it is admitted to aid the jury, not control it, in the determination of the issue. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332 (Tex.Com.App.1938, opin. adopted by S.Ct.); Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314 (S.Ct.1891); Doherty v. Dean, 337 S.W.2d 153 (Tex.Civ.App.1960, n. w. h.); Hooten v. Dunbar, supra; Houston & T.C.R. Co. v. Ellis, 134 S.W. 246 (Tex.Civ.App.1911, wr.ref’d). This point of error is overruled.

Judgment of the trial court is affirmed.