author: NYE, Justice.

text:
    W. M. LEWRIGHT, Cecil D. Redford, Dwight Carlsen, Dr. R. V. St. John and Ernest T. Fontaine, Appellants, v. Liston MANNING, Appellee.
    No. 84.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 17, 1965.
    Rehearing Denied July 13, 1965.

      John A. Waller, Corpus Christi, for appellants.
    Oscar A. Spitz, Corpus Christi, for appel-lee.
   NYE, Justice.

Appellants filed suit in the nature of a declaratory judgment action against appel-lee alleging that a judgment amending a certain deed restriction entered over two years prior thereto was void on its face as not being a true and proper class action. Appellee’s motion for summary judgment was granted by the trial judge decreeing that appellants take nothing by their suit. Appellants have perfected their appeal to this Court.

The prior action was brought by plaintiffs Hardwicke and Calaway in the nature of a class action as provided by Rule 42, Texas Rules of Civil Procedure, against defendants Joslin, Bickley and Allen, who owned property in the subdivision and two named saving and loan associations as mortgagees of property owners in this subdivision. In January, 1961, in Cause Number 72017-C, hereinafter called prior cause or prior judgment, a judgment in the district court of Nueces County, Texas, was entered, amending the deed restriction on a certain parcel of land (being a residential lot) in the subdivision, from a single-family residence use to a multi-family or apartment use. At the time of the suit Hard-wicke was the owner of the parcel of land and Calaway was contractually interested therein. Thereafter, the title to the land was conveyed to Manning, the appellee here. In April, 1963, appellants, all property owners in the same subdivision, filed suit against Manning, appellee, praying for a declaratory judgment whether or not their rights as persons owning residential tracts in Bessar Park Addition and who were opposed to the removal of the restriction from Manning’s land, were adjudicated in the prior cause.

Appellants complain of the judgment in the prior cause, alleging that such judgment was void on its face as not being a true and proper class action for the reasons (1) that the suit did not include defendants who were representative of all classes in Bessar Park Addition, (2) that the suit included too few defendants to constitute a group representative of all of the classes in Bessar Park Addition, (3) that the judgment did not contain therein a finding that, in law, constituted a legal ground for removal of deed restrictions, and (4) that the law suit constituted a legal fraud in that it was not an adversary proceeding but was a friendly suit between the parties to the suit.

Additionally, plaintiffs pleaded that such judgment in the prior cause is a nullity as to appellants, because it did not have as defendants, persons representative of the class of persons to which appellants belong, alleging: (1) that at the time of the institution of the prior cause appellants consti-uted the class of persons in Bessar Park opposed to the removal of the deed restriction in question; (2) that none of the appellants had knowledge of the institution of the suit or existence thereof prior to entry of judgment, and did not learn about the judgment until long after its rendition; (3) that in addition to appellants there were other persons owning residential property in Bessar Park Addition opposed to the removal of the deed restrictions in question, and that said persons constituted a part of the class who were not represented in the prior cause; (4) that none of the named defendants in the prior cause had any authority to or permission from appellants to represent them; (5) that in fact the named defendants Bickley, Joslin and Allen, in the prior cause were unopposed to the allegations of the plaintiffs in said suit and were actually representatives solely of the class of persons owning residential lots in Bessar Park Addition who were not opposed to the removal of the deed restriction on the property in question; and (6) that the interests of defendants Bickley, Joslin and Allen in the prior cause were not in any way common with the class of persons in Bessar Park Addition opposed to removal of the deed restrictions from the land in question.

Appellants’ two points on appeal are: that the trial court erred in decreeing that appellants were not entited to a trial of their petition for declaratory judgment to the effect that their rights were not adjudicated in the prior judgment because the prior judgment is clearly ambiguous on its face, as a matter of law, as to the classes in Bes-sar Park Addition whose rights were adjudicated therein. Point two: the trial court erred in granting the summary judgment on the grounds that the prior judgment was a proper class action and not subject to collateral attack by appellants because the prior judgment could not have obtained jurisdiction over appellants where none of the defendants in that prior suit represented the class of persons to which appellants belong.

At the outset it must be clearly understood that the appellants do not claim that the judgment entered by the district judge in the prior cause was erroneous. This type of complaint could only be made in a direct attack on the judgment by way of appeal, writ of error, or bill of review. Before a litigant can successfully invoke the equitable proceeding in the nature of a bill of review he must join as parties in the attack all those who were parties to the judgment, and he must allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was -prevented from making by the fraud, accident or wrongful act of the opposite party, and (3) unmixed with any fault or negligence of his own. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, Sup.Ct.1950; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, Sup.Ct.1935, 41 Texas Law Review, page 179.

An examination of appellants’ petition and the contentions and complaints set forth in this suit are -those which would, for the most part, be considered in a direct attack in the nature of a bill of review.

The grounds upon which a collateral attack is made upon a judgment in the ordinary class of situations are where the court which rendered the judgment has (1) no jurisdiction of the person or the party or his property, (2) no jurisdiction of the subject matter of the suit, (3) no jurisdiction to enter the particular judgment rendered or (4) no capacity to act as a court. There are some affirmative defenses to the collateral attack even when one of the foregoing grounds are established, such as estoppel, res judicata, or that part of a judgment is valid although another is void. 41 Texas Law Review, pp. 161-198 and pp. 499-544; Gus M. Hodges “Collateral Attacks on Judgments”. We are not concerned with (2) through (4) above, or any affirmative defenses.

A distinction must be made between a direct and collateral attack on the judgment The former may be based on any error which probably caused a wrong judgment and such error may be shown by almost any relevant evidence. The collateral attack may assert only grounds which would show the court rendering the prior judgment to be without jurisdiction, and such grounds may be proved only by the record in the proceeding leading to the prior judgment. 41 Texas Law Review; Collateral Attacks on Judgments, supra.

Appellants failed to join any of the parties to the prior suit in the present case. They contend on appeal that the court that rendered the prior judgment had no jurisdiction of the appellants and therefore the judgment is void as to them. There is no doubt that appellants’ present suit is a collateral attack on the prior judgment.

The issue then, narrows down to a determination of the validity and integrity of the prior judgment when attacked collaterally. The question is: Can parties in a collateral attack test the recitals in a prior judgment to determine whether members of the classes recited, represented the class of persons to which the attacking parties belong?

The chief distinction between a void judgment and a valid one, is the absence of jurisdiction in the court that rendered the judgment. If the court lacked jurisdiction the judgment is void. If it had jurisdiction, the judgment may be voidable, but it cannot be void. 34 Tex.Jur.2d § 265, and cases cited therein. Inasmuch as it is only void judgments that can be successfully attacked in collateral proceedings, it is evident that we must consider the judgment itself to determine if the court obtained jurisdiction of the appellants in the prior judgment. 34 Tex.Jur.2d § 260; Bowers v. Chaney, 21 Tex. 363 (1858). The judgment in the original suit stated that:

“On this the 13th day of January, 1961, came on to be heard the above entitled and numbered cause; and came James C. Calaway in person and both Plaintiffs by their attorney of record and announced ready for trial; and came the Defendants, E. S. Joslin and E. T. Bickley, by their attorney of record and announced ready for trial; and came the Defendant, Corpus Christi Savings & Loan Association, by its attorney of record and announced ready for trial; and came the Defendant, First Savings & Loan Association of Corpus Christi by its attorney of record and announced ready for trial; and Defendant Ross L. Allen, having filed his Disclaimer herein. Said Defendants being sued herein individually and as representatives of all property owners and mortgagees of Bessar Park, an Addition to the City of Corpus Christi, Nueces County, Texas.
“And it appearing to the Court, after having duly heard and considered the pleadings, evidence and argument of Counsel:
“(b) That the subject property has been zoned by the Zoning and Planning Commission of the City of Corpus Christi, Texas, for many years as ‘A-l or apartment use.’
“(c) That directly across the street from the subject property there is an apartment building and directly to the West of the subject property is an apartment building, both having been built and used for apartment buildings for many years in accordance and under authority of the Deed restrictions and official plat of said Subdivision.
“(d). That the persons, firms or corporations constituting each of the classes of Defendants hereinabove set out and referred to, are so numerous as to make it impractical to name all of them as parties by name, or to bring all of them before the Court in person, but that the persons made party defendants herein by name, and who are sued as representatives of the aforesaid classes of defendants, do fairly represent and have fairly represented all members of said respective classes and do fairly insure the representatives of all members of such respective classes, and that all of said defendants who are sued by representatives have interests in common in all issues involved herein with those defendants who are designated as representatives of all such respective defendants.
“(f). That the Defendants named herein and the classes they represent will not be damaged by the amendment to the restrictions sought by Plaintiffs; that the subdivision, as originally platted, and the original restrictions providing for the use of the subject property for apartment use, which is the amendment sought herein, and the City of Corpus Christi, Texas, has for many years zoned the subject property for apartment use.
“(g). That all necessary and proper parties required to grant the Plaintiffs the relief they seek have been made party defendants hereto and have been duly and legally served with citation, or have entered their disclaimer and are properly before the Court.
“(h). That the law and facts are with the Plaintiffs and that the Plaintiffs are entitled to the amended Deed restriction to the extent sought by them; that such amendment will not be a detriment to the adjacent property owners or other property owners or mortgagees in Bessar Park, an Addition to the City of Corpus Christi, Texas; and that it would be inequitable and unjust to continue the single family restriction to the subject property.”

Thereafter, the judgment recited the court’s order and decree in which the court stated that the plaintiffs would “have judgment against the named Defendants (naming them), and all of the property owners and mortgagees in Bessar Park Addition * * * ” declaring the restriction amended, and so forth.

We do not believe that the foregoing judgment and the recitals made therein are ambiguous.

The prior judgment recites that the named defendants are sued individually and as representatives of all property owners in file subdivision; that the persons, firms or corporations constituting each of the classes are so numerous as to make it impractical to name all of them as parties by name; that the persons made party defendants are sued as representatives of the aforesaid class of defendants and do fairly represent, and have fairly represented, all members of said respective class; that the defendants who are sued by representatives have interest in common in all issues involved in the suit with those defendants who are designated as representatives of such respective defendants; and finally, that all necessary and proper parties required to grant the plaintiffs the relief they seek have been made party defendants and have been duly and legally served with citation and are properly before the court. The appellants contend, in effect, that they are entitled to open up these recitals to show that the appellants and the class they represent were not represented in the class of property owners named in the judgment.

In order for a collateral attack on a prior judgment to be entertained in a subsequent suit, the lack of jurisdiction must affirmatively appear either on the face of the judgment or in the record. 34 Tex. Jur.2d § 267, § 268 and § 331 (and cases cited therein). A cardinal principle governing the disposition of collateral attacks on judgments is that extrinsic evidence to the record may not be considered and the recitations in the judgment control. Fitch v. Boyer, 51 Tex. 336, Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W. 2d 656 (1952); Lawler v. White, 27 Tex. 250 (1863); see also, Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; 34 Tex.Jur.2d § 332 (and cases cited therein).

The appellants, in their brief cite Stapleton v. Wilcox, 2 Tex.Civ.App. 542, 21 S.W. 972 (1893); Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633 (1928); and Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427 (1939), as examples of exceptional class of cases in which extrinsic evidence may be introduced in a collateral attack to destroy the validity of a final judgment. Since the trial court in the prior cause was a Nueces County District Court * * * a court of general jurisdiction, acting in the exercise of its ordinary judicial function, and the judgment rendered by such district court in the prior cause contains affirmative express findings of all necessary jurisdictional facts, this case cannot and does not fall within the exceptional class. See opinion by Judge Denman, Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329 (1895).

Appellants contend that they are not bound by the prior judgment because the district court in the prior case never acquired any jurisdiction over the appellants as a matter of law. They contend that they could not have been represented during the case, as only the court can acquire jurisdiction, (other than through customary methods), by proof of compliance of Rule 42, T.R.C.P. Appellants contend that they were not represented by anyone in the prior cause because they composed a group that opposed the removal of the deed restriction, and there were no recitals in the judgment showing that their class was represented.

The courts of our state have held that persons may be bound by judgments although they are not named as parties thereto as that term is commonly used, if they are virtually represented in a class suit. Southern Ornamental Iron Works v. Morrow, Tex.Civ.App., 101 S.W.2d 336 (1937, wr. ref.); Richardson v. Kelly, 144 Tex. 497, 191 S.W.2d 857 (1945). Speaking for the court, Justice Speer in Southern Ornamental Iron Work, supra, stated:

“The judgment is regular in form, and shows jurisdiction of the subject-matter and the parties individually and as a class.
“There is nothing omitted from the judgment necessary to its validity upon its face. If in fact it should be found wanting in any requisite recitation, upon a collateral attack, such as this one, the fell-settled rule of every reasonable presumption as to its validity would be applicable. Burton et al. v. McGuire et al. (Tex.Com.App.) 41 S.W. (2d) 238.”

Since Rule 42(a), T.R.C.P., authorizes and controls class actions as a matter of procedure, even if an error was committed by the court affecting the application of the rule, it would not affect the jurisdiction of the court or the power of the court to render the judgment. Accordingly, although an erroneous exercise of pcfwer can be subject to a direct attack on the judgment, by appeal, writ of error, or bill of review, nevertheless the complaint cannot be raised in a collateral attack on a judgment. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920); Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329; Southern Ornamental Iron Works v. Morrow, supra; Richardson et al. v. Kelly, supra; Humphrey v. Knox, Tex.Civ.App., 244 S.W.2d 309 (1951, wr. ref., n. r. e.); see also McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

Appellants cite the case of Knioum v. Slattery, Tex.Civ.App., 239 S.W.2d 865 (1951, wr. ref.), as a basis for the error of the trial court in granting a summary judgment. They contend, as a matter of law, that there were other members of other classes which were not before the court. The original judgment named only five defendants and since they can recite nine different possible classes, they contend they are representatives of one of the nine possible classes that could not, as a matter of law, have been represented by the five main defendants in the prior suit. In an opinion by Justice Norvell, the court stated that only parties and privies are bound by judgments. However, there is an exception to this rule which recognizes that a person may be bound by a judgment under the theory of virtual representation. The procedures of suits based upon this principle is set forth in Rule 42, T.R.C.P., which requires that “such as them (members of the class affected), one or more, as will fairly insure the adequate representation of all,” may be sued. The court concluded that where only two named defendants were representative of nine categories of interested persons, the trial court abused its discretion in holding that the two named defendants were representative of the classes of persons affected by the suit. This was a direct attack on a judgment by way of appeal, in which all of the proceedings and all of the evidence that appeared to the trial judge are opened for consideration by the reviewing court to determine if error was involved.

Appellants rely on Meyer v. Wichita County Water Imp. Dists. Nos. 1 and 2, Tex.Civ.App., 265 S.W.2d 660 (1954, wr. ref., n. r. e.) as being directly in point and controlling in the case before us. In the Meyer case, supra, two named plaintiffs, Moore and Kirk, in their individual capacity and also allegedly as representatives of property owners, brought suit against the water improvement district. The judgment decreed that the plaintiffs therein, individually and as a class, representing all of the property owners of certain lands, were entitled to have delivered to them for irrigation purposes certain waters from Lake Wichita and by decree imposed on the persons represented by the class, an affirmative obligation to pay fees or tolls for the water on a per-acre basis. The judgment became final and was not appealed. Four months thereafter, Meyer and other owners of lands to which the first judgment related, filed suit to set aside the judgment. They sought a prohibitive injunction against the parties plaintiffs and defendants in the prior judgment from collecting the assessments, contending that they did not desire water from the water improvement district and that they did not wish to become obligated to pay the assessments by virtue of the prior final judgment. The court cited the law of the Slattery case, supra, recognizing the general rule that only parties and privies are bound by judgment and the exception to the rule which recognizes that a person may be bound in a judgment on the theory of virtual representation. The question in the Meyer case, supra, was narrowed down by the appellate court to a determination of whether the plaintiffs in the original suit had interests in common and were members of the class of the plaintiffs in the subsequent suit. It is obvious that the party plaintiffs who had but one single interest in common in the original suit, did not represent the classes of property owners who did not have a similar interest in the subject matter. The two named plaintiffs in the prior suit were seeking the same relief as individuals and as representatives of the class of property owners seeking the same relief as they. The judgment was one in per-sonam. The court stated that “[o]ne not party to a suit is not bound by the judgment entered upon it and has the option of vacating it by direct proceedings or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same.” Citing Parker v. Spencer, 61 Tex. 155 (1884). The pleadings alleged a cause of action for injunction relief and presented issues which plaintiffs were entitled to have litigated. In the Meyer case the parties in the second suit were identical to the parties in the first suit. We believe that the Meyer case, supra, can be distinguished from this case upon the facts.

In order to prevail in this case appellants would unquestionably have to use evidence aliunde the judgment to support the many allegations of their pleadings and to prove that the recitals in the judgment are erroneous. Appellants admit that they are property owners in the Bessar Park Addition. The trial court in the prior cause expressly found that the defendants in the prior cause fairly represented all property owners and mortgagees of Bessar Park and that all of such defendants who were sued by representatives have interest in common in all issues involved herein with those defendants who are designated as representatives of all such respective defendants. We hold that the prior judgment, valid on its face, cannot be assailed collaterally. The jurisdictional recitals are not open to attack but import absolute verity. Levy v. Roper, 113 Tex. 356, 256 S.W. 251, Sup.Ct. (1923); Galbraith v. Bishop, Tex.Civ.App., 287 S. W. 1087 (1926); Southern Ornamental Iron Works v. Morrow, Tex.Civ.App., 101 S.W.2d 336, wr. ref.; Richardson v. Kelly, 144 Tex. 497, 191 S.W.2d 857.

Appellants’ points are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    H. L. EICHELBERGER and Unis Eichelberger, in re: Adoption of Three Minors, Appellants, v. John H. ORR, Jr., Appellee.
    No. 143.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 13, 1965.
    Richard A. Hall, of Branscomb, Gary, Thomasson & Hall, Corpus Christi, for appellants.
    Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.
   GREEN, Chief Justice.

This is a venue case, in which the trial court sustained appellee’s pleas of privilege. A joint, agreed motion signed by the attorneys of record for all parties to this appeal stating that appellee wishes to withdraw his pleas of privilege, and asking that this court set aside and withdraw the opinions heretofore handed down in this cause, and reverse the judgment appealed from and remand the cause to the trial court for further proceedings on the merits, has been timely filed with us. This court has authority to act upon and grant this motion. Mickelson v. Mickelson, Tex.Civ.App., 384 S.W.2d 230.

The agreed motion further prays that mandate issue to the trial court immediately, under the provisions of Rule 442, Texas Rules of Civil Procedure.

Without passing upon the merits of the appeal, but due to the agreement of the parties, the motion is granted. The prior opinions herein delivered June 29, 1965, are set aside and ordered withdrawn. The judgment of the trial court sustaining appellee’s pleas of privilege is reversed, and the cause is remanded to the trial court for further proceedings on the merits not inconsistent with this opinion. The clerk of this court is directed to issue the mandate instanter.

As agreed upon by the parties, all costs of this appeal are assessed against appellants.


author: CLAYTON, Justice.

text:
    Isadora SANDOVAL, d/b/a Sandy’s Auto Sales, Appellant, v. Edward E. HARPER, Appellee.
    No. 5708.
    Court of Civil Appeals of Texas. El Paso.
    June 9, 1965.
    Rehearing Denied July 14, 1965.
    Mayfield, Broaddus, MacAyeal & Per-renot, El Paso, for appellant.
    Paxson & Santiesteban, El Paso, for ap-pellee.
   CLAYTON, Justice.

Appeal from an order of the District Court of El Paso County, Texas, granting appellee (plaintiff in the court below) a summary judgment. Appellee had delivered to one Dan Littlefield a Chevrolet station wagon, together with the keys for the same and a Texas Certificate of Title showing the automobile to he registered in the name of appellee, and received a check from Littlefield in the amount of $900.00 therefor. The check proved to be worthless. The appellee had signed his name on the reverse of the certificate of title, under the “Assignment of Title”, but the rest of the assignment had not been filled out or notarized. On the day following his receipt of the automobile from Harper, Littlefield sold the car to appellant for $675.00, delivering the certificate of title endorsed in blank on the back by appellee Harper. Littlefield later died. Appellant sold the vehicle to another, having filled in the name of his business as “Purchaser” in the assignment of title and his own name as notary under the signature of appellee, although to his knowledge he had never met appellee. After Littlefield’s check was returned unpaid, appellee brought suit against appellant to recover the $900.00 as the value of the vehicle. Appellant answered by general denial, requesting leave to amend. Appellee filed his motion for summary judgment which was controverted by appellant’s affidavit in which he claimed estoppel against appellee or alternatively that a question of fact was involved in whether such estoppel existed. After an adverse ruling on the motion for summary judgment, appellant filed his motion for rehearing and for leave to replead, setting up the defenses of estoppel, implied authority and valid contract of sale. This motion was denied and summary judgment was granted appel-lee on the matter of appellant’s liability, leaving for jury trial the sole question of amount of damages. The finding of the jury on this issue is not here contested.

The principles governing summary judgment proceedings are well known, but are concisely re-stated by the Texas Supreme Court in the case of Great American Reserve Insurance Co. v. San Antonio Plumbing Co., 391 S.W.2d 41, Vol. 8, The Texas Supreme Court Journal 374, 376 (April 24, 1965), as follows:

“ * * * Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l. Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1962). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957) *

In his first point of error on appeal, appellant charges that summary judgment should not have been granted as there was a genuine issue of fact as to whether appel-lee had clothed Littlefield with apparent ownership of the car so that he could transfer it to others, by delivering the automobile and certificate of title thereon to Littlefield, thus estopping appellee from denying that a completed transfer to Little-field had taken place. To support this position, appellant relies upon the general rule that ordinarily where one clothes another with the indicia of ownership of personal property, he may be estopped to assert title to the property as against a purchaser from one having such indicia of title. McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144, 146 (1945).

In Point Two appellant maintains that summary judgment should not have been granted since there was a genuine issue of fact as to whether Harper, the appellee, by his actions in accepting Little-field’s check and in return therefor delivering the possession of the automobile and the certificate of-title in blank to Little-field, had actually consummated a completed assignment and sale as between the parties, with equitable title passing to Littlefield and to all purchasers for value from Little-field. With this we agree.

We consider the failure of appellee to properly fill in and notarize the assignment of title as having no effect on the conclusion we draw in this case. We note that section 53 of the Texas “Certificate of Title Act” (Art. 1436-1, Penal Code) provides that: “All sales made in violation of this Act shall be void and no title shall pass until the provisions of this Act have been complied with.” However, Hicksbaugh Lumber Co. v. Fidelity & Casualty Co. of New York, 177 S.W.2d 802, 803 (Tex.Civ.App., 1944; n. w. h.) sets out what seems to be the prevailing attitude of Texas courts in the following language:

“The legislative intent, as disclosed in section 1 of the Certificate of Title Act, was to lessen and prevent theft and traffic in stolen motor vehicles (Motor Investment Company et al. v. Knox City [141 Tex. 530] 174 S.W.2d 482, 483), and not to prevent sales and transfers of interest in motor vehicles. The Act does not prohibit or provide penalties for persons who have transferred interest in motor vehicles without compliance with the provisions thereof.
“Section 53 of the Act provides that all sales made in violation of the Act shall be void and that no title (emphasis ours) shall pass until the provisions of the Act have been complied with. The Act does not provide that no interest (emphasis ours) in the motor vehicle shall pass until the provisions of the Act have been complied with.”

See also Rush v. Smitherman, 294 S.W.2d 873, 877 (Tex.Civ.App., 1956; wr. ref.); Anderson v. King, 370 S.W.2d 775 (Tex.Civ.App., 1963; n. w. h.).

In any event we must keep in mind that this is a summary judgment case, in which it is claimed by appellee, the movant, that there is no material issue of fact. It has been held that whether or not title passes under certain given circumstances depends upon the intention of the parties at the time, this being a fact issue. Gerber v. Pike, 249 S.W.2d 90 (Tex.Civ.App., 1952; n. w. h.). Our attention has been called by appellant in his reply brief to a very recent decision of the Texas Supreme Court in the case of Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (1963). While this case does not deal with an automobile sale or the Texas “Certificate of Title Act”, it is a summary judgment case and the language used is so appropriate to issues here before us, we deem it well to quote from the opinion. In the cited case Kinsel delivered certain cattle to one Wiley which Wiley paid for by delivering his check to Kinsel, which check was not honored by the bank upon which it was drawn. Wiley then sold the cattle to Valley Stockyards Company, which in turn resold the cattle in the usual course of business. Kinsel contended that he had never parted with title to the cattle, and that when Valley Stockyards bought the cattle from Wiley (without notice of Kinsel’s claim), and resold the cattle, it became liable to Kinsel as a converter. The trial court granted summary judgment to Kinsel on the theory of conversion and the Court of Civil Appeals affirmed. The Supreme Court reversed and remanded the cause, stating:

“It is doubtful if much is gained by attempting to dispose of a case of this type by use of the summary judgment procedure. A restatement, exception, or a refinement of a rule of law is not involved, but rather the application of a rule of law to a particular factual situation. The controlling question is whether or not at the time Kinsel delivered the 158 head of cattle to a cattle trader named Will Ed. Wiley, he intended that title to the cattle should pass to the said Wiley. Seemingly, it would not be a very difficult task to determine this issue upon a preponderance of the evidence basis, where the trier of facts would be entitled to consider the credibility of witnesses and the weight to be given their testimony. However, it is another thing to determine from affidavits and deposition statements which are equi-vocable in nature and subject to varying inferences whether or not a genuine fact issue is raised. In determining this issue, the same rule is applied as that used to test the evidence in a conventional trial in deciding whether or not an instructed verdict should be given. The evidence (the affidavit and deposition statements) must be viewed in the light most favorable to Valley Stockyards Company [defendant], the party against whom the judgment was rendered. When statements and circumstances are subject to more than one inference or interpretation, that version most favorable to the petitioner must be accepted. In other words, the judgments of the courts below must be reversed unless we can say that it appears conclusively as a matter of law that at the time the cattle were delivered to Wiley, Kinsel did not intend that title should pass. * * *
“Respondent [plaintiff] relies upon the general rule that where a cash sale is involved and personal property is delivered in exchange for a check, there is a presumption that the parties did not intend that title to the property should pass until the check was honored by the drawee bank. Lang v. Rickmers, 70 Tex. 108, 7 S.W. 527; Middlekauff v. State Banking Board, 111 Tex. 561, 242 S.W. 442; Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963; Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275. This presumption, however, is not conclusive but may be rebutted. If a jury could conclude from the evidence now in the affidavit and deposition form that the delivery of the cattle was made with the intention of passing title to Wiley at that time, it would necessarily follow that Valley Stockyards eould not be held liable as a converter by purchasing the cattle from Wiley. Unless we are prepared to say that an intention to pass title at time of delivery must be shown by an expressed agreement to overcome the presumption above noticed, then we must hold that the circumstances disclosed in the present record are sufficient to take the case to the jury. In our opinion, circumstances may be relied upon to overcome the presumption.”

We believe that the reasoning in the above quotations apply precisely to the facts in the case before us. Whether we ground our decision under the technical terminology of “estoppel” or “completed assignment and sale” (there being eminent authority for both) seems to be immaterial, since we find that there are material issues of fact in either category for submission to the jury. For that reason Points of Error Nos. One and Two are sustained, and comment upon the remaining three points is unnecessary and would not be of material assistance in another trial. We might here adopt the further language of the Supreme Court in the Kinsel case: “This is undoubtedly a hard case, as are all cases where one of two innocent parties must suffer because of the fraud of a third party, but we are convinced that the record discloses genuine fact issues.”

Judgment of the trial court reversed and this cause remanded.


author: HIGHTOWER, Chief Justice.

text:
    CITY OF BEAUMONT, Appellant, v. Jennie FERTITTA et al., Appellees.
    No. 6678.
    Court of Civil Appeals of Texas. Beaumont.
    June 24, 1965.
    Rehearing Denied July 21, 1965.
    King, Sharfstein & Rienstra, Beaumont, for appellant.
    W. G. Walley, Jr., Keith, Mehaffy & Weber, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

The City of Beaumont, lessors, brought suit against the successors in interest of Sam Fertitta, lessee, to cancel and hold for naught two certain amendments to a leasehold contract, for rent due under the original lease, and for taxes. The Jensam Corporation, being the successor in interest to the original defendants, was thereafter substituted as the sole defendant in the case.

The City has appealed from the judgment of the trial court denying its motion for summary judgment and from a summary judgment in favor of the Jensam Corporation upholding validity of the original lease and the two amendments subsequent thereto.

The property involved was conveyed to the City as a public charitable trust and was legally lodged in the City as trustee and being administered by it. For the complete nature and history of said property, see Carroll v. City of Beaumont, Tex.Civ.App., 18 S.W.2d 813. On November 14, 1928, City and Sam Fertitta entered -into the original lease which was for a term of 99 years, commencing December 1, 1928, and ending November 30, 2027. The substance of the pertinent paragraphs of said lease being:

A decennial appraisal of the property exclusive of improvements, by mutual agreement between the lessor and lessee, if possible, but if not, then by arbitration, and the payment by the lessee to lessor of a rental for each ten year period of an amount equal to six percent per annum of such agreed or arbitrated value, payable in monthly installments, in advance. It was agreed that, for the first ten years that the value of the property, exclusive of improvements, would be fixed at $130,-000.00 — an annual rental of $7,800.00;
“(9) It is the qontention of Lessee that the property and premises herein leased are not subject to taxation, but it is agreed, however, that Lessee shall pay to Lessor, in addition to the rent herein provided to be paid, as taxes or as a special assessment against the property herein leased annually as and when taxes assessed by Lessor accrue and become payable, beginning with the year 1929, an amount equal to all taxes that would be assessable by Lessor against said property if same were taxable. Lessee further agrees that if said property is subject to taxation by the State and County, he will pay ns they accrue all taxes assessable against said property by said State and County.”

On October 3, 1933, the City Commission of appellant adopted a resolution which recited the recognition by appellant’s governing body at the time of the existence of the severe, prolonged national economic depression and authorized amendment of the-original lease to reduce the annual payments by the -lessee to lessor to $5,000.00 per year until December 1, 1938, on which date the payments by the lessee should be in accordance with the terms and provisions of the original lease. This amendment specified that from October 1, 1933, to December 1, 1938, the total considerations and monies payable by Sam Fertitta to the City under the lease shall be reduced to the sum of $5,000.00 per annum payable in equal monthly installments * * * which consideration of $5,000.00 shall be in lieu and substitution of any and all other considerations provided in said lease.

A little over a year later, January 2, 1935, the City expressing cognizance of the economic depression, the parties entered into a new agreement supplanting the 1933 amendment providing that;

(a) for the period commencing January 1, 1935, and ending December 1, 1938, lessee should pay City $5-,100.00 annually in equal monthly installments in lieu of any and all considerations provided in the original lease
(b) for the term commencing December 1, 1938, and ending December 1, 1968, lessee should pay lessor
* * * the sum of Six Thousand ($6,000.00) Dollars per annum, payable in equal monthly installments on the first day of each and every month of said term, of which consideration of Six Thousand ($6,000.00) Dollars per annum, Four Thousand ($4,000.00) Dollars shall be by way of rental and Two Thousand ($2,000.00) Dollars shall be by way of special assessment in lieu of the provision of said lease contained in paragraph 9 thereof, and the same shall be and is hereby made in lieu and substitution of any and all considerations, assessments, and payments provided in said lease contract.
* * *
(c) beginning December 1, 1968, payments by the lessee to the lessor should be made for the remainder of the demised term in accordance with the original terms of the lease.

Appellant did not in the trial court, nor here, question the validity of the original lease. The substance of its six points of error being that the subsequent amendments thereto of 1933 and 1935 were invalid nova-tions which released and extinguished an indebtedness in the form of rent due the City within the prohibition of Article III, Section 55, Constitution of the State of Texas, Vernon’s Ann. St. Also, that the 1935 amendment exempts by commutation the leasehold estate from bearing its proper and lawful share of taxes within the prohibition of Article VIII, Section 2, Constitution of the State of Texas.

Article III, Section 55, supra, of the Constitution, reads:

“The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing in whole or .in part, the indebtedness, liability or obligation of any corporation or individual, to this State or to any county or defined subdivision thereof, or other municipal corporation therein, except delinquent taxes which have been due for a period of at least ten years.”

After setting forth enumerated exemptions from taxation, Article VIII, Section 2, of the Constitution of the State of Texas concludes:

“ * * * and all laws exempting property from taxation other than the property above mentioned shall be null and void.”

We first treat City’s contentions that the amendment of 1935 amounted to a commutation or exemption of taxes on the leasehold, and in such connection, we observe Article XI, Section 9, of the Constitution of Texas, reading:

“The property of counties, cities and towns, owned and held only for public purposes, such as public buildings and sites therefor, fire engines and the furniture thereof, and all property used, or intended for extinguishing fires, public grounds and all other property devoted exclusively to the use and benefit of the public, shall be exempt * * * from taxation.”

City does not deny that the leasehold was a public charitable trust administered exclusively by it for the use and benefit of the public and the decision of Carroll v. City of Beaumont, supra, definitely established that the property involved there and herein was conveyed to and held by it for public purposes contemplated by the Constitution of Texas; Art. 1175, Revised Civil Statutes of 1925, and the Charter of the City of Beaumont of 1919. The effect of the holding of the Supreme Court in Daugherty, Tax Collector v. Thompson, 71 Tex. 192, 9 S.W. 99, is:

“that if the rentals or profits from lands of a county, city or town owned and held only for public purposes are devoted exclusively to the public purposes designated, such property is absolutely exempt from taxation by the county, city or town owning the same and by all other taxing authorities whether leased or not by reason of Article XI, Section 9, of the Constitution of Texas. Since no act of the legislature can empower the appellant city, the State of the County to require or allow the property involved, whether the fee or the lesser estate, to be taxed, there can be no question presented in this cause of any violation of the constitutional provisions embodied in Article VIII, Section 2, Constitution of Texas.”

See also Upshur County v. Heydrick, Tex.Civ.App., 221 S.W.2d 326 (err. ref. N.R.E.)

With reference to City’s contentions that the 1933 and 1935 amendments released and extinguished rents due and unpaid to it under the original lease within the prohibition of Article III, Section 55, supra, of the Constitution, we observe that a new set of obligations owing by the lessee to the City was created by such amendments. Nothing in the record before this court reflects that the new obligations undertaken by the lessee in the amendments were not more valuable to the lessor, in dollars and cents, than those originally undertaken by the City in the original lease. The novation amendments must have been supported by that which, at such time, was a valuable consideration. Uphsur County v. Heydrick, supra. The assurance to the City that it would receive $5,100.00 per year for 3 years and $6,000.00 per year for the following 20 years, regardless of economic conditions and property valuations, must have been viewed as a valuable and gainful consideration and substitute for the original obligation to pay the percentages specified of the ever declining value of property in those depression days of 1935. It is to be presumed that the City Fathers’ official acts were in good conscience and in accordance with the best usages and principles of business.

All of the City’s contentions are overruled and the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Warwick H. JENKINS et ux., Appellants, v. CITY OF WAXAHACHIE, Appellee.
    No. 4374.
    Court of Civil Appeals of Texas. Waco.
    June 24, 1966.
    Rehearing Denied July 15, 1965.

      Warwick H. Jenkins, Waxahachie, for appellants.
    Griffith & Lumpkins, Waxahachie, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order holding a city ordinance constitutional, and denying plaintiff Jenkins’ application for a temporary injunction.

Plaintiffs’ dog was picked up by an employee of the City of Waxahachie and impounded for one day, and released to plaintiff only after payment of a fee of $2.00 ($1 impounding fee and $1 for each day of impoundment). Plaintiff brought this suit to enjoin enforcement of the “Dog” Ordinance of the City of Waxahachie, and sought temporary injunction against its enforcement pending final hearing. Plaintiffs contends the ordinance is unconstitutional under both the United States and Texas Constitutions. The trial court, after hearing without a jury, held the ordinance valid and constitutional and denied the temporary injunction sought. Plaintiffs appeal, contending the trial court’s refusal to grant the temporary injunction is an abuse of discretion, and that the ordinance complained of is unconstitutional.

The City of Waxahachie is a Home Rule City. On August 27, 1964 the City adopted an ordinance regulating the keeping of dogs within the city. Among other things the ordinance provides for annual rabies inoculations, annual licensing by the city, and annual issuance and continuous wearing of dog tags for all dogs over 6 months old. The foregoing provisions of the ordinance are not under attack. Sections 1(c), V, XI, XII, XIII, XIV, XV and XVI of the ordinance are under attack, and provide that dogs found running at large within the city may be picked up, impounded, destroyed, or otherwise disposed of in accordance with the terms of the ordinance. The ordinance provides for the summary sale or destruction of any dog impounded that is not redeemed within 72 hours.

Plaintiff contends that a dog is property, and because the ordinance is silent as to notice and judicial determination of violation, that it is violative of the United States Constitution (Amendments V and XIV) and the Texas Constitution (Art. 1, Secs. 17, 19, and 29, Vernon’s Ann.St.), which provide that no person shall be deprived of life, liberty or property without due process of law and just compensation.

The City’s Home Rule Charter authorizes enactment of “all reasonable ordinances * * * not repugnant to the Constitution and Laws of the United States or of this State * * * ”; and Article 1015 Vernon’s Ann.Civ.Tex.St. provides that a City Council shall have power to prohibit the running at large of dogs and authorize destruction when at large contrary to ordinance (Sec. 15).

Consistent with due process, a state, or municipal corporation under its delegated power in such respect, may make provision for the summary destruction of dogs which are kept or running at large in violation of law, and such regulations, no matter how stringent in character or how summary the proceedings, are entirely within legislative power and are free from constitutional objection, notwithstanding the property of the owner is destroyed without notice or hearing in the execution of the law. 25 Am.Jur.2d 272.

Moreover, the overwhelming majority of courts view statutes and ordinances providing for summary disposal or destruction of dogs as valid exercises of the police power; and though dogs are property, such ordinances or statutes are not a denial of due process, even though they do not provide for notice and hearing. 56 A.L.R. 2d 1026.

We think the complained of provisions of the Ordinance valid exercises of the police power, and Constitutional.

Plaintiffs’ point and contentions thereunder are overruled.

Affirmed.

      . “Ic. At .Large shall, for the purposes of this Ordinance, mean any dog when it is off the property of its owner, and not under the immediate control of a competent person.
      “V. Running at Large Prohibited: No person owning, possessing or harboring any dog shall permit such dog to run at large at any time. The Chief of Police or any authorized representative may pick up, impound, destroy or otherwise dispose of any dog so found running at large within the Corporate Limits in accordance with the terms hereof.
      “XI. Pound: The City Sanitarian or his authorized representative shall provide and operate a pound in which shall be impounded all unlicensed dogs and dogs that may be found running at large contrary to the provisions of this Ordinance.
      “XII. Registry of Impounded Dogs: The City Sanitarian or his designated representative shall, upon receiving any dog, make a complete registry, entering the breed, color and sex of such dogs, and the time of taking into custody, and if licensed he shall enter the name and address of the owner and the number of the license tag.
      “XIII. Disposal of Impounded Dogs: Any dog not redeemed within 72 hours after the impounding shall be disposed of by sale or destruction.
      “XIV. Redemption of Impounded Dogs: The owner of any dog impounded may redeem such dog at any time prior to sale or destruction by the payment of $1 impounding fee and $1 per day for each day or part of a day such dog shall have been impounded. * * *

      “XV. Sale of Unredeemed Dogs: At any time after the expiration of the redemption period, the City Sanitarian or his authorized representative may without further notice, sell at private sale or public auction, for cash, any dog not redeemed or reclaimed.
      “XVI. Redemption After Sale: The owner of any dog impounded may, within 30 days after such dog is sold, redeem the same from such purchaser by paying the purchaser the amount of the purchase price paid by him, and in addition thereto * * * the sum of $10 from date of sale to date of redemption. Upon expiration of 30 days from the date the dog is sold the right to redeem shall expire.”


author: DAVIS, Justice.

text:
    SIGNATURE INDORSEMENT COMPANY et al., Appellants, v. W. J. WILSON, Appellee.
    No. 7646.
    Court of Civil Appeals of Texas. Texarkana.
    June 8, 1965.
    Rehearing Denied July 13, 1965.

      Fred S. Abney, M. C. McLain, Abney & Burleson, Dallas, Dean Moorhead, Austin, for appellants.
    Edward R. Vinson, Fritz, Vinson & Stevens, Dallas, for appellee.
   DAVIS, Justice.

Appellee-plaintiff, W. J. Wilson, sued two sets of defendants, viz: (1) Signature Indorsement Company, Signature In-dorsement Co., Inc., Signature Loans, Inc., Mid-Southern Service Company, Finance Operating Company, Service Management Company, Virgil C. Moore, alter ego of the loan companies, and W. Lee Moore, Jr., alter ego of the loan companies, and (2) Crown Loan Brokers, Inc., No. 7, formerly McCarty Finance Service, Inc.; Quick Loan Service of Big Springs, Inc., Union Finance Co., Inc., Consumer Discount Corp., Suburban Loan Corp., Paul R. Luther, Sr., and Paul R. Luther, Jr., alter egos of said corporations for (a) usury double damages (b) actual damages resulting to W. J. Wilson and his wife, Mrs. Frances Wilson, because of unreasonable contacts from said loan companies and their employees in an effort to collect usurious balances upon purported loans made to W. J. Wilson, and (c) exemplary damages because of malice exhibited on the part of said loan companies and their employees by their collection contacts. The suit was filed September 24, 1959. It is alleged that appellants-defendants, Signature Indorsement Company and W. Lee Moore, Jr., (in their amended motion for new trial) had filed a cross-action against Quick Loan Service of Big Springs, Inc., and McCarty Finance Service, Inc. There is no cross-action in the record. There is an order in the transcript dismissing the purported cross-action. The record does not show any service of any process whatever on the cross-defendants. According to a statement in a brief, the Quick Loan Service filed an answer to the cross-action on April 20, 1964, after the cross-action had been dismissed and on the date the trial commenced.

In 1962, W. J. Wilson made a settlement with Paul Luther, Sr., and Paul Luther, Jr., owners of the Quick Loan Service and Crown Loan Brokers, Inc., and affiliates for a total sum of $810.00.

At the beginning of the trial, appellee and appellant entered into the following stipulation:

“For the purposes of this case only, and without the defendants admitting that the charges, collected as insurance premiums and endorsement fees by Signature Loans, Inc., Mid-Southern Service Company, d/b/a Signature In-dorsement Company and Signature In-dorsement Company,' in connection with the transactions between these companies and the plaintiff, W. J. Wilson, were in fact interest, as claimed by the said Wilson, and without plaintiff admitting that such charges were for the purposes named, the plaintiff and said defendants herein stipulate and agree that said defendants handled a series of loan transactions for plaintiff in connection with which contracts were made requiring payment of the charges shown on the schedule attached hereto, and that said defendants received payments thereupon from plaintiff as set forth in such schedule.
“All of the loans made were payable in 3 months. The $23.65 transactions were payable $1.90 per week, for 11 weeks, plus a final payment of $2.75. The $36.30 transactions were payable $2.95 per week for 11 weeks, plus a final payment of $3.85.
“Signed and dated the 11 day of January, 1963.”

Appellee alleged that on March 31, 1958, he borrowed $15.00 from Signature Loans, Inc., and that he executed a note in the total sum of $23.65. From then until May 2, 1959, he executed seven renewal notes. By the renewals he received an additional $30.16, making a total of $45.16 as the result of the loans. Appellee paid back $100.46. Appellee alleged that the claims of the balances on the notes were usurious, illegal, null and void, and unconstitutional; that the appellants contacted appellee and his wife at their places of employment in order to collect the void notes, and such collection efforts were unreasonable and in reckless disregard of the health and welfare of ap-pellee and his wife; that the collection efforts by appellants to try to collect the void notes constituted a course of harassment that resulted in emotional distress, illness, and other bodily harm; that all of the acts of appellants were willful, wanton and malicious; that all of the acts were the proximate cause of the illnesses they suffered, including extreme nervousness, headaches, loss of sleep, reduction in ability to work, extreme fatigue and weariness, harmful loss of weight of appellee Wilson from 165 to 149 lbs., heart pains, loss of appetite, and chronic depression; and, that the damages to his wife resulted in extreme nervousness, headaches, nausea, indigestion, loss of sleep, reduction in ability to work, extreme fatigue and weariness, numbness of shoulders, aching and trembling of the throat and hands, crying and choking spells (feeling that she was burning up), hypertension, and chronic depression.

The case was tried before a jury. Appellant, Signature Indorsement Company, was found to have made unreasonable collection contacts upon appellee Wilson and his wife, Frances Wilson, possibly causing mental or emotional pain and physical illness, and that they acted with malice toward appellee and his wife. The jury found that appellants had charged appellee for insurance premiums and endorsement fees for the purpose of obtaining additional compensation for the use of the money. The jury awarded to appellee $500 as actual damages, and to his wife, Frances Wilson, $2,000 as actual damages. The jury denied Wilson any exemplary damages, but awarded his wife, Frances Wilson, $5,000 exemplary damages for malice and reckless disregard by their unreasonable contacts perpetrated by appellants upon Mrs. Wilson. The trial court deducted $810.00, the amount of the settlement, from the actual damages awarded to Wilson and his wife, and granted a judgment against Signature Indorsement Company, and alter ego W. Lee Moore, Jr., jointly and severally, for $110.60 for usury double damages, $1,690.00 actual damages, $5,000 as exemplary damages, and canceled the purported balance upon the last notes executed by Wilson to Signature Indorsement Company. Appellants have perfected their appeal, and bring forward 23 points of error.

By their point 1, appellants-say the trial court erred in submitting to the jury, over timely objection, special issues Nos. 11 and 15, inquiring about unreasonable collection efforts, for the reason that said special issues submitted in global form an issue of ordinary negligence without separating and inquiring about the several particular elements that allegedly constituted the unreasonable (i. e. negligent) collection efforts pleaded by appellee.

By their point 2, appellant says the trial court erred in not submitting to the jury, over timely objection, special issues Nos. 12 and 16 inquiring about conduct and reckless disregard for the health and welfare of the appellant Wilson and his wife for the reason that the issues were a global submission of the issue of reckless disregard, and such issue should be submitted by referring to a particular fact which appellee claims was established by the evidence, by then inquiring whether such fact actually occurred, and by next inquiring whether such act or omission was actually done in reckless disregard. These points were passed on in Employee Finance Company v. Lathram (Tex.Civ.App.), 363 S.W.2d 899, 901 (affirmed in part and reversed and dismissed in part, Tex., 369 S.W.2d 927), in the following language:

“In point three appellants attack the issues on unreasonable collection efforts as being in global form.
“The plaintiff pleaded and proved that all the appellants were guilty of unreasonable collection efforts. Separate issues were submitted as to each defendant concerning the question of unreasonable collection efforts. Under the record, as presented to us, we think there was no error in failing to ask the jury if each defendant committed each act of the multitude of acts in evidence. The issues as presented were, from the nature of this case, ultimate issues.”

Any opinion that we would write to the contrary would conflict with this opinion. The Supreme Court granted a writ of error, Employees Finance Company v. Lathram, 369 S.W.2d 927, and had this to say:

“ * * * The only points of error presented complain of the action of the trial court in striking allegations of contributory negligence from petitioners’ answer to respondent’s claim for damages for unreasonable collection efforts, and of errors committed in the submission to the jury of special issues and an instruction relating to respondent’s claim for damages resulting from unreasonable collection efforts. For purposes of this opinion, WE MAY ASSUME, WITHOUT DECIDING, that the points of error are good and should be sustained.” (Emphasis added.)

It will be noted that the Supreme Court only assumed, but did not decide that the global submission of the issues constituted error. The points are overruled.

By their points 3 through 10, appellants say there is no evidence; there is insufficient evidence, and the findings of the jury with respect to malice is against the great weight and preponderance of the evidence; there is no evidence to support the finding of $5,000.00 exemplary damages to Mrs. Wilson, and the exemplary damages are excessive; there is no evidence and there is insufficient evidence to support the finding against appellant, Signature Indorsement Company, for acting in reckless disregard for the health and welfare of Mrs. Wilson, and such findings are against the great weight and preponderance of the evidence; there is no evidence, and there is insufficient evidence to support the jury’s finding of unreasonable collection efforts, and such findings are against the great weight and preponderance of the evidence.

According to the evidence, the appellants started calling Wilson on the telephone while he was on his job, about the middle of 1958, and continued the calls until about the middle of 1959. The calls would usually go to his employer, or to his foreman. If they went to the employer, the employer would buzz the foreman, and the foreman would tell Wilson about the phone call. Wilson asked the loan company not to call him on the job, but they continued to do so. These facts were verified by the employer and the foreman. There is testimony that Wilson received more telephone calls than all of the rest of the men combined, and estimated an average of 4 to 6 calls per week. He was warned by his foreman that the calls had to stop or he would lose his job. There were at least 3 or 4 calls to Wilson in a single day. The callers would use a harsh voice, talk loud, and rough, and demand that Wilson come to their office. There is evidence that Wilson became extremely nervous, suffered with serious headaches, lost about 15 lbs. in weight, could not eat nor rest or sleep at night, and the next morning he would be nervous, tired and give-out. He was working on a “piece work” basis, and because of the way he was harassed on the telephone, he could not turn out as many pieces of work as his fellow employees would turn out.

As to Mrs. Wilson, the evidence shows appellants would place telephone calls to her at her place of employment that would cause her to be embarrassed, nervous, she would suffer headaches, her shoulders would get numb, her hands would tremble, she would suffer from indigestion, her heart would hurt, she would be unable to breathe good, she would choke, and feel like she could not swallow, she continuously stayed in that state, it made her sick to go to work; and when the elevator would stop on her floor she would want to turn around and go home. Other employees testified about this condition, that they observed by her actions that she was nervous, white around the mouth, she would be so upset she could hardly work, one could just see her shake, her mouth would tremble, and her hands would, also. When she reached home at night she would be irritable and cross, and she would walk the yards, and could not sleep. On one occasion, she called the appellants from her mother’s home, and her mother finally took the telephone and told them that Mrs. Wilson had a small baby and was having a hard time, and told them that if they did not quit calling her on the job that she was going to get fired. The employee said: “By Hell, I want my money,” and told her that she was not a lady. On two occasions two men went to see her while she was on her job. On one occasion she got so upset that she almost “socked” one of them. This was witnessed by the employees, and one of the employees testified that she told the man to leave before he caused Mrs. Wilson to have a nervous breakdown. She testified that Mrs. Wilson was extremely nervous, was shrilling at the man, and that she was just unreal and was just beside herself. The man refused to leave immediately, and told Mrs. Wilson and the employees in a loud tone of voice that Mrs. Wilson was trying to beat the Company. He further told them that he was coming back. Mrs. Guthrie testified that after the man left, Mrs. Wilson was extremely nervous, upset, and shaky, her voice was still shrill, she was shaking all over, jerking, she had a tremor, she was just beside herself, was nauseated, and sick at her stomach. She further testified that she had never seen Mrs. Wilson so upset in her life. According to the evidence, the harassment and contacts caused Mrs. Wilson to take Rolaids, Bisodol, Turns, Asperins, Anacin, Milk of Magnesia, Pepto Bismol, and she did not know whether or not that was all. She took the medicine to try to get relief from indigestion, headache, and sick stomach. Many of the girls at the factory where she worked gave her a lot of medicine, but she spent around $12.00 of her own. She was employed working at Jennifer Jones on a per piece basis, and because of the contacts of harassment she had a lot of repair to do. She was engaged in making dresses, and she would have to sit and rip and re-sew, and she could not sew a straight seam because of the contacts.

That seems to be enough evidence, and the evidence seems sufficient to support the jury’s findings. But we will discuss the unreasonableness and reckless disregard on the part of the appellants. Remember that appellant Wilson actually received $45.16. He had already paid back $100.46. By the renewals of the notes that he had executed he had promised to pay back a total sum of $239.80. How could anyone put forth an effort to collect a usurious, void, illegal, and unconstitutional note or debt in such cases and the effort be reasonable? Wilson was not an educated man, and apparently he was easily sold as to the loans. Appellants knew that what they were doing was wrong. Such has been the law throughout the ages, and was announced as such in Cotton v. Cooper (Comm, of App.), Opt. adpt. and entered as a judgment of the Sp.Ct., 209 S.W. 135, in the following language:

“ * * *, although the defendants were aware of such rule at the time, and were also aware that at such time he was not indebted to them in any sum, they nevertheless wrongfully, willfully, and maliciously, with wanton disregard of the rights of the plaintiff, and for the purpose of procuring his discharge, filed copies of said assignments, together with notice thereof with the said railway company * * * »

The evidence shows that appellant Cotton owned several loan companies in many southern states, apparently only where ignorant Negro labor was in abundance. Appellant Cotton and his employees would advise the needy and helpless that they could always get money from one of Cotton’s institutions. They would charge the ignor-rant white people 20% interest per month, and the ignorant Negro people 30% interest per month. In the case we are now discussing, all of the charges made by appellants against appellee Wilson amounted to 1530% interest per annum. Speaking of the collection efforts, the court, in Cotton v. Cooper, supra, had this to say:

“Defendant cannot be heard to say that usury is a matter of defense or offset and could be waived; that, therefore, he could not be charged with knowledge that plaintiff would insist upon usury as a defense or as an offset.”

In defining the loan companies, the court said:

“To the facts hereinabove set out, a part of the statement of the facts by the Court of Civil Appeals, might be added others from the record revealing the nefarious character of the business of the 'loan offices.’ We will not particularize or set out such additional facts. The record discloses that the ‘loan offices’ controlled by defendant are conducted in utter disregard of private rights and the public good, and that the system has fastened itself upon many hundred employés of various industries. In the city of Houston alone between 1,000 and 1,500 railroad employés are on defendants books. In the great majority of instances the borrowers are from the very ignorant class. Usurious transactions of the most extreme and aggravating type are cloaked and concealed by subterfuge in order to evade the penalties of the law. The powers of attorney executed by those dealing with defendant are as chains binding them to the system. The threat of the filing of these instruments and the consequent loss of employment is kept ever before them, driving them through fear into deeper slavery. In a word, the business is fraught with great evil, not only to the individual, but to the public as well.” (Emphasis added).

Chief Justice Hickman in Duty v. General Finance Company, 154 Tex. 16, 273 S.W.2d 64, 66, had this to say:

“We have been furnished by a representative of the Retail Merchants’ Association of Texas with an argument of amicus curiae in reply to the application for writ of error, in which the fear is expressed that a holding that a cause of action has been stated in this case would hamper the department stores, national banks and ethical professional men in the collection of obligations owing to them. The fear is not well founded. No such business concerns or ethical professional men will ever be guilty of such outrageous conduct as that described in the petition in this case. * * * ” (Emphasis added.)

There is lots of evidence, and the evidence is sufficient to support the jury’s findings. Duty v. General Finance Company, supra; Wright v. E-Z Finance Co. (Tex.Civ.App.), 267 S.W.2d 602, er. ref., n. r. e.; Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778, 7 L.R.A.,N.S., 545. Points Nos. 11 through 20 are overruled.

By their point 21, appellants say the trial court erred in dismissing their cross-action against McCarty Finance Service, Inc., and Quick Loan Service of Big Springs, because they were entitled to contribution from said cross-defendants under Art. 2212, Vernon’s Ann.Rev.Civ.St.; and the dismissal of such cross-action burdens appellants with the necessity of a multiplicity of suits and security of action in order to establish its right of contribution. If the appellants had been diligent, the point would be well taken. The suit was filed on Sept. 24, 1959. The settlement was made with the cross-defendants on March 21, 1962. Appellants did not file their cross-action until shortly before the case was called for trial. Neither of the cross-defendants were served with any process or citation whatever, and McCarty Finance Service, Inc., never filed an answer. Quick Loan Service filed an answer on the date the trial commenced. The trial court dismissed the cross-action because of the appellants’ failure to act with reasonable promptness in bringing in third parties. The Supreme Court of Texas has held that where two or more wrongdoers join to produce an injury, all of the wrongdoers are jointly and severally liable to the persons wronged for the entire damages suffered. It has further held that if less than all the tort feasors are joined as defendants by plaintiff, then those joined may bring in the others. Riley v. Industrial Finance, 157 Tex. 306, 302 S.W.2d 652; Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731. The holding of the Supreme Court does not make it mandatory that a defendant can wait until the date of the trial and then bring in the joint tortfeasors, and, thereby, force another continuance. Art. 2212 V.R.C.S. clearly provides for the right of contribution among joint tortfeasors as among themselves, Lottman v. Cuilla, (Tex.Comm. of App.), 288 S.W. 123. The appellants would not be entitled to a continuance nearly five years after the suit was filed merely to make the joint tort feasors parties to the suit. Schubert v. First Nat. Bank of Raymondville (Tex.Civ.App.), 40 S.W.2d 240, N.W.H.; Ratliff v. Russek (Tex.Civ.App.), 59 S.W.2d 859, er. ref. The point is overruled.

Appellants failed to brief their point of error No. 22, and the error that the trial court may have committed has been waived. Rule 418, Texas Rules of Civil Procedure; Garcia v. Lacey (Tex.Civ.App.), 316 S.W.2d 183, N.W.H.; Stanford v. Brooks (Ct.Civ.App.), 298 S.W.2d 268, N.W.H. The point is overruled.

By their point 23, appellants take the position that there is insufficient evidence to support the jury finding that the endorsement fees charged to appellee were interest, and such findings were against the great weight and preponderance of the evidence. We have examined the statement of facts. We hold that the evidence is sufficient to support the jury’s findings. The point is overruled.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Annie O. FLEMING et vir, Appellants, v. S. N. ADAMS et al., Appellees.
    No. 14579.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.
    Rehearing Denied July 8, 1965.

      Raymond H. Wilson, Houston, for appellants.
    Carl & Lee, Emory T. Carl, Ben L. Adams, Jr., Houston, for appellees.
   COLEMAN, Justice.

Appellants have brought this action for a declaratory judgment, requesting declaration and judgment by the court that a tract of land owned by them is free and clear of all restrictions as to the purpose for which it may be used and the character of buildings which may be constructed thereon. Appellees were named defendants as owners of lots in an adjacent restricted subdivision, and as owners representative of the whole class of owners of lots in such subdivision. Also named as defendants were the owners of tracts of land out of the larger tract from which appellants’ land was conveyed. After trial to the court without a jury a judgment was entered that appellants’ land was subject to the same restrictions binding the lots or tracts of land owned by the defendants.

S. N. Adams was the owner of a 44.38 acre tract of land out of Lots 5 and 6 of the Morse Subdivision of the western portion of the A. C. Reynolds Survey in Harris County, Texas. On September 27, 1949 he filed for record in Harris County a subdivision plat of 40.3096 acres of said land as Oak Estates. The remainder of the tract is shown on the map of Oak Estates as a single tract and is designated “Owned by others”, although at the time the plat was filed it was owned by Adams. Another portion of the land was not divided into lots on the plat and was labeled “Unrestricted”. It has been developed into a regional shopping center. Certain easements dedicated by the plat extended through the “Owned by others” tract.

On October 24, 1949, S. N. Adams executed an instrument, which was filed in the Deed Records of Harris County, whereby he adopted certain covenants, conditions, easements and restrictions applicable only to the platted lots in Oak Estates Subdivi-. sion. Thereafter Adams sold many of the lots in Oak Estates and represented to the purchasers that all of the lots, together with the 4 acre tract adjoining the subdivision, were highly restricted and could be used for single family residences only. Appellants had no actual knowledge of these representations prior to the purchase of the property in question.

Early in the year 1950 Adams began the construction of a residence on the land in question, which is a tract of land approximately 110' by 188' off of the north end of the tract designated “Owned by others” on the plat of Oak Estates. As security for a loan he executed a deed of trust, filed for record May 3, 1950, conveying the property in question to a trustee. The deed of trust contained the following covenants and restrictions:

“It is understood that the above described real property herein conveyed in trust is hereby subjected to each and all of the restrictions set out and contained in an instrument executed by S. N. Adams on the 25th day of October, 1949, and filed for Record under File No. 675789 in the office of the County Clerk of Harris County, Texas, said instrument having- created restrictions against the lots and blocks comprising Oak Estates Addition, and the same restrictions therein contained, insofar as said restrictions are reasonably applicable to the above described property, are hereby imposed thereon.
“In addition to the above restrictions, the property above described and hereby conveyed in trust, is hereby subjected to the additional restriction that no house erected thereon shall have less than Two Thousand (2000.00) square feet of livable floor space area, and no building site shall be less than Ninety (90') feet in width facing on Drexel Drive.
“The restrictions herein imposed upon the above described property shall exist against the same for the same length of time and under the same conditions as set out in said above mentioned instrument recorded in the County Clerk’s office of Harris County, Texas under File No. 675789.”

The debt secured by the deed of trust was subsequently paid and a release of the deed of trust lien dated November 28, 1950, was filed for record on December 29, 1950 at 11:30 a. m. On November 23, 1950, Adams sold the property in question to Curtis K. Canter by deed filed for record on December 29, 1950 at 11:30 a. m. The deed contained this recitation:

“This conveyance is made and accepted subject to any and all restrictions and easements affecting the use of the premises conveyed herein, now of record in the County Clerk’s office in said County.”

Canter and wife subsequently conveyed the property to Freidkin by a deed reciting:

“The conveyance evidenced by this deed is made subject to any and all easements, restrictions, covenants, conditions, and reservations of record, if any, applicable to the herein conveyed property, or any part thereof.”

Freidkin conveyed to Mrs. Fleming, appellant, by deed dated August 29, 1957, “made and accepted subject to

“Any and all existing and valid restrictions and easements now shown of record in the County Clerk’s office of Harris County, Texas.”

At the time of the purchase of this property neither Mrs. Fleming nor her husband, Harvey T. Fleming, who represented her in the transaction, had any actual knowledge of the existence or contents of the deed of trust. However, all but one of the building sites out of the 4 acre tract and most of the lots in Oak Estates Subdivision were improved with single family residences. The Flemings moved into the residence located on the property in question.

On February 7, 1951, Adams conveyed a building site out of the 4 acre tract to Roy C. Super, and on February 15, 1951, another to Georgia Super Sutherland. Both conveyances contained recitations subjecting the property conveyed to restrictions, the recitations being identical to those contained in the deed of trust.

By an instrument dated February 7, 1951 and filed for record August 9, 1951, referring to the Plat of Oak Estates and the instrument imposing restrictive covenants on the lots therein, Adams subjected all of the 4 acre tract shown on the Plat as “Owned by others”, except that previously conveyed to Canter, which was specifically described, to the covenants and restrictions imposed on the lots in Oak Estates Subdivision, “insofar as the same are reasonably applicable to the S. N. Adams tract of land.” There were also provisions requiring that each home site deeded out of the tract be not less than 90' feet in width and face on Drexel Drive and that no house could be erected on such sites with a livable area of less than 2000 square feet. It was provided that the restrictions would exist for the same length of time and under the same conditions as set out in the restrictions instrument filed in connection with Oak Estates Subdivision.

Thereafter Adams conveyed as building sites all the remaining land in the “Owned by others” tract. Some deeds contained appropriate references to the February 7, 1951 instrument imposing restrictions; others excepted easements and restrictive covenants from the warranty or made no reference to restrictive covenants.

Prior to the date on which the conveyance was made to Canter or the restrictions were imposed on the 4 acre tract, Adams had sold all of the lots in Oak Estates Subdivision to a corporation, in which he and members of his family were the only substantial stockholders. Deeds to building sites in the 4 acre tract were executed by Adams individually, while deeds to the lots in Oak Estates were executed by Adams as president of the corporation. Adams subsequently acquired, and owned at the time of the trial, some of the lots in Oak Estates. He owned no land in the 4 acre tract at the time of trial.

The property of plaintiffs faces 115 feet on Drexel Drive and is bounded along its North line by San Felipe Road, which is a heavily traveled street in the City of Houston. The property of plaintiffs is bounded on its east line by a tract of land on which is located a restaurant and private club known as The Confederate House, which is a commercial use. To the east of said The Confederate House tract, and fronting north on the south side of San Felipe Road, for the full remainder of the block, are other commercial establishments. Neither The Confederate House tract nor the commercial establishment tracts lying east thereof constitute any part of the 44.38 acres of land out of Lots 5 and 6 of the Morse Subdivision of the western portion of the A. C. Reynolds Survey in Harris County, Texas, and here-inabove described as owned by S. N. Adams of September 27, 1949.

The trial court made findings of fact, including substantially all of the facts set out in the foregoing statement and made the following conclusions of law:

“1. S. N. Adams adopted a general scheme or plan for the development and use of the entire 44.38 acre tract of land owned by him.
“2. The general scheme or plan of the said S. N. Adams is evidenced by the execution by said S. N. Adams of the plat of Oak Estates, which is recorded Volume 31, page 67, Map Records of Harris County, Texas; the execution of the instrument dated October 24, 1949, recorded Volume 1992, page 581, Deed Records of Harris County, Texas, adopting covenants, conditions, stipulations, easements and restrictions covering lots in Oak Estates; the execution of the Deed of Trust dated April 28, 1950, filed for record May 3, 1950, and record Volume 1680, page 603, Deed of Trust Records of Harris County, Texas; the execution by S. N. Adams of deed to Roy C. Super dated February 7, 1951, recorded Volume 2238, page 414, Deed Records of Harris County, Texas; the execution by S. N. Adams to Georgia Super Sutherland of a deed dated February 15, 1951, recorded Volume 2243, page 88, Harris County Deed Records; the execution of the instrument by S. N. Adams dated February 7, 1951, recorded Volume 2318, page 625, Deed Records of Harris County, Texas, subjecting the land therein described to restrictions and covenants therein set forth.
“3. The plaintiffs had constructive notice of the deed of trust executed by S. N. Adams dated April 28, 1950, recorded Volume 1680, page 603, Deed of Trust Records of Harris County, Texas.
“4. All of the covenants and restrictions set forth in the instruments above referred to constitute covenants running with the land for the benefit of all owners of lots in Oak Estates, and also for the benefit of all owners of building sites out of the tract designated on the map of Oak Estates as ‘Owned By-Others’, and all owners of any of said lots or building sites are entitled to enforce all of said covenants.”

The particular property involved in this controversy is not burdened with restrictive covenants running with the land, at law, unless the provisions of the deed of trust effectively created them. We are of the opinion that the covenants placed therein do not run with the land at law. It is essential to the creation of such an easement that there be a dominant estate and a servient estate in tracts of land owned separately by two or more individuals. Texas courts have adopted the view that restrictions upon the use of land are easements or equitable servitudes upon the land and constitute interests in land. Such easements must be created by an instrument m writing satisfying the Statute of Frauds. Miller v. Babb, Tex.Com.App., 263 S.W. 253; Davis v. Skipper, Tex.Com.App., 125 Tex. 364, 83 S.W.2d 318; Panhandle & S. F. Ry. Co. v. Wiggins, Tex.Civ.App., 161 S.W.2d 501, error ref.; 21 Tex.Jur.2d Easements, p. 125.

In this jurisdiction a mortgage or a deed of trust does not convey title to land. While the deed of trust involved here was given by the owner of a tract of land on a part of it only, the covenants (whether considered as servitudes or negative easements) expressed therein, affecting the part of the land mortgaged for the benefit of the remainder of the land, are not easements prior to a sale under the power given to the trustee because prior to that time there is no separation of title, no dominant and servient estates. Wylie v. Hays, Tex.Sup., 114 Tex. 46, 263 S.W. 563; Knox v. Brown, Tex.Com.App., 16 S.W.2d 262; Kling v. Ghilarducci, Ill.Sup., 3 Ill.2d 454, 121 N.E.2d 752, 46 A.L.R.2d 1189; Williams, Restrictions on the Use of Land; “Covenants Running with The Land at Law”, 27 T.L.R. 419.

The fact that the deed of trust was recorded in the Mortgage Records of Harris County, Texas, therefore, would not be constructive notice of the existence of restrictive easements on this land since the lien of the deed of trust was released and the release was properly recorded. Since the title of appellants is not derived from the deed of trust, there was nothing shown of record which imputed to them notice of any valid and existing restrictive covenants affecting their land. Brown v. Ackerman, Tex.Com.App., 17 S.W.2d 771.

In the leading case of Hooper v. Lottman, Tex.Civ.App., 171 S.W. 270, the rule of law upon which the trial court predicated its judgment was enunciated as follows:

“So the general rule may be safely stated to be that where there is a general plan or scheme adopted by the owner of a tract, for the development and improvement of the property by which it is divided into streets and lots, and which contemplates a restriction as to the uses to which lots may be put, or the character and location of improvements thereon, to be secured by a covenant embodying the restrictions to be inserted in the deeds to purchasers, and it appears from the language of the deed itself, construed in the light of the surrounding circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject thereto, and to have the benefit thereof, and such covenants are inserted in all the deeds for lots sold in pursuance of the plan, a purchaser and his assigns may enforce the covenant against any other purchaser, and his assigns, if he has bought with actual or constructive knowledge of the scheme, and the convenant was part of the subject-matter of his purchase. DeGray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 24 Atl. 388; Hano v. Bigelow, 155 Mass. 341, 29 N.E. 628.”

In Monk v. Danna, Tex.Civ.App., 110 S.W.2d 84, writ dism., the court emphasized that before one can be charged with the burden of restrictive covenants pursuant to a general plan or scheme, he must have purchased with knowledge, either actual or constructive, of the plan. This rule has been noticed by this Court in many cases. Wilson Co. v. Gordon, Tex.Civ.App., 224 S.W. 703, writ dism.; Gordon v. Hoencke, Tex.Civ.App., 253 S.W. 629; Klein v. Palmer, Tex.Civ.App., 151 S.W.2d 652; Braswell v. Woods, 199 S.W.2d 253, ref., n. r. e.; Alexander Schroeder Lumber Co. v. Corona, Tex.Civ.App., 288 S.W.2d 829, ref., n. r. e.

In the case last cited it was emphasized that where the land in controversy was not owned by the common grantor at the inception of the general scheme, but nevertheless was included within general plan at that time, and all the land to be included in the scheme was clearly defined by the common grantor, and the purchasers had notice of the existence of a building scheme embracing the lands they were purchasing, the restrictions could be enforced against the subsequent purchaser.

The necessity for a proper description of property to be affected by restrictive covenants is illustrated by the case of Davis v. Congreation Shearith Israel, Tex.Civ.App., 283 S.W.2d 810, ref., n. r. e., holding that, where the common grantor, in connection with the sale of certain land subject to restrictions, agreed that similar restrictions be placed on “other surrounding property” owned by him, the agreement was “too general, indefinite and inexact to constitute a sufficient real estate description to impose restrictions, or to constitute constructive notice * * * of restrictions * * *.”

The trial court found that appellants had no actual knowledge or information concerning the representations by S. N. Adams to purchasers of lots in Oak Estates prior to or at the time of the purchase of the property involved in this litigation. The plat of Oak Estates filed for record showed the tract of land from which appellants’ lot was severed as “Owned by others”. The instrument imposing restrictions on Oak Estates specified the lots to which these restrictions applied, and, thereby, specifically excluded the tract “Owned by others”. It is clear, therefore, that from the record evidence the land “Owned by others” was not included in the general plan from its inception. Appellees offered evidence that Adams represented to the purchasers of Oak Estates lots that the restrictions would be imposed on the “Owned by others” land. Since appellants’ lot was not included in the plat of the subdivision, or mentioned in the dedicatory instrument, appellants cannot be charged with constructive notice of a general plan or scheme of development applicable to the land they purchased.

Since this lot is not within a platted subdivision, and was excluded from the subsequently filed instrument imposing restrictions on the “Owned by others” tract, and since this was the first lot conveyed out of the “Owned by others” tract, the fact that all of the other lots conveyed out of this tract were subjected to uniform restrictions would not be constructive notice of development under a plan or scheme. Appellants were entitled to rely on the information which a search of the records and the instruments referred to therein would have revealed. Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319; Chandler v. Darwin, Tex.Civ.App., 281 S.W.2d 363; Spencer v. Maverick, Tex.Civ.App., 146 S.W.2d 819; Wilkerson v. Ward, Tex.Civ.App., 137 S.W. 158, writ ref.

If appellants had constructive notice of the recorded deed of trust and of the covenants therein, a search of the records would have revealed that the deed of trust was released and that no title was conveyed thereby. There is nothing in the deed of trust to indicate that the restrictions set out therein were imposed for the benefit of purchasers of tracts out of the “Owned by others” land. Nor does the deed of trust purport to extend the general plan to include the entire “Owned by others” tract. No uniform plan of development including the land in question and other similarly situated land owned by the grantor was initiated by the deed of trust. Its recordation could not be constructive notice of such a plan.

The judgment of the trial court is reversed and judgment is here rendered that appellants’ title to the tract of land in question is free and clear of and not subject to or burdened by covenants, easements, or restrictions as to the use thereof.