author: SPEER, Justice.

text:
    CRENSHAW v. NEWELL.
    No. 14192.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 17, 1941.
    Rehearing Denied Feb. 14, 1941.

      Cantey, Hanger, McMahon, McKnight & Johnson, and Boykin & Ray, all of Fort Worth, for appellant.
    Bryan, Stone, Wade & Agerton and B. G. Mansell, all of Fort Worth, for appellee.
   SPEER, Justice.

Appellánt, Augusta Reynolds Crenshaw, instituted this suit against appellee, Frances Huffmaster Newell, as an individual and as independent executrix of the alleged last will of A. E. Newell, deceased, to recover title and possession of certain real and personal property, described in the pleadings.

The basis of, appellant’s suit may be briefly stated to be one allegedly resulting from a contract and agreement made in 1925 between A. E. Newell and his then wife, Augusta Newell, whereby they would ' each execute a will so that the survivor would take all the property and at his or her death it should pass to appellant. The wills' were executed in compliance with the contract. Augusta Newell died testate and A. E. Newell had her will probated. Thereafter A. E. Newell intermarried with ap-pellee and made a subsequent will, in which appellee was named as a principal devisee. That appellant was a niece of 'Augusta Newell,'deceased, and while appellant was an infant the Newells took her •into their home and reared her as their own child. • Since the death of A. E. Newell, the appellee has filed for probate the said second or subsequent will of A. E. Newell. Appellant and/ her husband contested the probate of that will, but the Contest was denied' by the Probate Court and an appeal was perfected to the District Court, where the matter stands undis-posed of, at this time.

Pending the probate proceedings, appellant filed this suit for possession and recovery of the property alleged to belong to the former estates of A. E. and Augusta Newell, both deceased, seeking recovery upon the grounds of the contract made between her foster parents. The basis of recovery sought is similar, in many respects, to the facts involved in Larrabee et al. v. Porter et al., Tex.Civ.App., 166 S.W. 395, writ refused.

The petition discloses that appellant is a feme covert, the wife of E. H. Crenshaw, Jr., but it is alleged that “the said E. H. Crenshaw, Jr., has failed and refused and neglected to bring this suit or join plaintiff herein and she sues alone by authority of the court.” Further allegations are made that the property involved belongs to her separate estate.

Appellee filed and urged a plea in abatement to appellant’s alleged cause of action in the instant case. The plea sets out the coverture of appellant, that her husband joined her in the previous proceedings contesting the probate of the A. E. Newell will; that the husband is a lawyer, and while not appearing in the probate proceedings as of counsel, yet he aided and counseled in said matters at all proceedings had therein; that likewise he is aiding and counselling with appellant and her attorneys in the present suit, and that appellant’s allegations that her husband has failed, refused and neglected to bring this suit or join plaintiff (appellant) herein, are untrue. It is further charged in said plea that E. H. Crenshaw, Jr., by his acts and cooperation with appellant and her counsel, has demonstrated the fact that he is in fact a party with his wife in this cause, and therefore the withholding of his name as a party plaintiff is not in good faith, but is a legal stratagem perpetrated by him with the hope of gaining some legal advantage in behalf of his said wife upon the trial of the cause. Prayer in the plea was, in effect, that the court hear evidence and determine whether or not E. H. Crenshaw, Jr., has in good faith failed and refused to prosecute or join with appellant in the prosecution of this suit.

Upon a hearing of the testimony, the court sustained the plea in abatement, from which order and decree this appeal was perfected. Under the conditions of appellant’s petition and the facts, about which there is no material dispute, we believe the trial court committed reversible error in sustaining the plea in abatement.

Article 1983, R.C.S. reads: “The husband may sue either alone or jointly with his wife for the recovery of the separate property of the wife; and, in case he fails or neglects so to do, she may sue alone by" authority of the court.”

It is a universally recognized rule of law in this State that the husband is a proper party plaintiff and in one sense, a necessary party in an action to recover the wife’s separate property. But the wife will not be denied her right of recovery alone upon the grounds that her husband fails or neglects to sue therefor, or that he fails or neglects -to join her therein. She? may maintain such a suit in her own name by a proper showing that he has so failed and neglected to sue or to join her in such an action. Edwards v. Dismukes, 53 Tex. 605; John v. Battle, 58 Tex. 591; Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522; Hill v. Kelsey, Tex.Civ.App., 89 S.W.2d 1017, writ dismissed; Newell v. State, Tex.Civ.App., 103 S.W.2d 194; Rhodes v. Taliaferro, Tex.Civ.App., 119 S.W.2d 703.

Appellee does not make the point here that the foregoing announcement of the law is not a correct one, but does contend that even though appellant made the necessary allegations to entitle her to prosecute this suit, under the rule announced, her allegations in that respect were unteue; that the. husband’s declination either to bring the suit or to join her as a party in its prosecution, was done in bad faith on his part, and done to procure what he believed to be an advantage, in being able to testify as a witness upon the trial, not being a party to the action.

The hearing on the plea in abatement was tried to the court. The record indicates that the attorneys for all parties had contemplated making a stipulation of the facts for consideration by the court, but after appellant’s counsel had stated what he conceived to be the facts, appellee’s counsel stated they desired to make inquiry of the first counsel with a view to further developing the facts, and this was done under agreement that the counsel of whom inquiry was made need not be sworn.

Under the conditions mentioned, appellant’s counsel testified, in response to questions from opposing counsel, substantially as follows: that he was called into the will contest case by another attorney and that he dictated- the contest for contestants (Mr. and Mrs'. Crenshaw), making the husband a party, without consulting either of them; that when they tried the will contest, the husband was present with the wife in court and participated in the trial. When the attorneys decided to institute the present suit, they asked Crenshaw and wife to come to Fort Worth, Texas, from their home over 300 miles away; Crenshaw and wife were living together as husband and wife at the time and had been for many years prior thereto, and that their marital relation was most pleasant in every respect. E. H. Crenshaw, Jr., (the husband) is a lawyer. At the conference the husband ’asked counsel (the witness) if it would be necessary for him to join his wife as plaintiff in the contemplated suit; that he did not want to join in the suit unless it was necessary; he didn’t want to be a party— he wanted her to run her own business; that she was entitled' to do so — it is a matter up to her as to whether she files a suit, she has a little estate and he (the husband) never interfered with her business. The husband left the matter of handling and managing the case to counsel employed. Counsel said he told the husband that whether or not he joined in the suit was up to him, the wife could prosecute it if he failed.or neglected to do so or to join her therein; that the husband said he did not want to join in the suit and preferred not to; he was then told that would be all right and it would suit counsel better, because he might be able to use him as a witness; counsel said he knew Mr. Crenshaw had probated Mrs. Newell’s will and thought possibly there had been something said at the time that he would remember, although he had not discussed it with Mr. Crenshaw, either then or at any other time. That the husband had cooperated with counsel in preparing the case for trial by interviewing witnesses and doing such things as he had been asked; that he had not discouraged the bringing of the suit by his wife, but had left it solely up to her; that the husband had made several trips from his home in the distant county in company with his wife, in connection with the former trials, and counsel believed he would attend the trial of this case without a subpoena; that he was present at the instant hearing and was expected to come back, if necessary.

Appellee introduced in evidence the pleadings in the will contest, which show that E. H. Crenshaw, Jr., 'joined his wife as contestant; the appeal bond of the same parties, from an adverse judgment therein, was also introduced.

The final decree in this case was entered as of 'June 25th, 1940, and in the judgment it is found by the court that at the time the hearing was had, on April 8th, the court heard the pleadings and stipulations and evidence offered, and then announced from the bench that he found that the husband did not, within the contemplation of the statute (Art. 1983), in fact fail, neglect or refuse to join with plaintiff in the institution and prosecution of her suit, and that he would sustain the plea in abatement unless the said E. H. Crenshaw, Jr., joined his wife, .the plaintiff herein. The judgment also shows that after the court made said announcement, the plaintiff’s counsel asked that no judgment be entered to that effect on that date and that he be given a .reasonable time in which to determine what course to pursue; the time was granted and on April 10th, appellant filed her sworn supplemental petition again alleging that her husband still failed, neglected, and refused to join her as a party plaintiff; the judgment shows that the court then considered the supplemental pleading along with the evidence adduced at the hearing on the plea, and recited that he was still of the opinion that the judgment should be as announced by him in the first instance. The decree then concludes by sustaining the plea in abatement and by dismissing the suit.

In many respects, our early laws affecting the rights of married women were peculiar to themselves, but virtually no change has been made since the days of the Republic in the rights of married women to bring and maintain actions to recover their separate property. This is disclosed by the opinion in McIntire v. Chappell, 2 Tex. 378. The court there quoted the law applicable at that time to the same situation involved here; there is no material difference in the language used in the two statutes. In the case last cited the court used this language: “The general rule then being that suit [to recover the effects of the wife] must be brought in the name of the husband alone, or of the husband and wife jointly, the grounds of the exception to the rule which authorize the action to be prosecuted in the name of the wife separately, ought to be positively averred and proven.”

It will be observed that the court sustained the plea in abatement upon the theory that the husband did not, within contemplation of the provisions of Article 1983, R.C.S., fail, neglect and refuse to join with plaintiff (the wife) in the institution and prosecution of the suit. It is evident that from the entire record before us he has in fact failed and neglected either to bring the suit to recover the property claimed by the wife or to join her as a party plaintiff in bringing and prosecuting it. The statute only includes the expressions of “fail” and “neglect”, but says nothing about his having “refused” to bring the suit or to join her in an 'action. If the question rested upon whether or not the husband had refused to bring a suit or to be a party to one to recover the wife’s separate property in this case, the evidence adduced would perhaps be susceptible to a construction that he had not in fact refused to become a party. Yet after the court has announced from the bench that he was inclined to sustain the plea unless the husband did join as a party plaintiff, and time was given by the court in which he could determine what course to pursue, the additional pleading was filed by -the wife, showing that he still failed, neglected and refused to join. This is somewhat persuasive that he in fact had previously refused to join in the suit. However, we cannot read into Article 1983 another condition not clearly expressed therein; hence when Mrs. Cren-shaw established by uncontradicted evidence that her husband had failed and neglected to institute the suit or to join her as a plaintiff therein, she had met the condition of the statute and the construction placed thereon by the Supreme Court in the McIntire v. Chappell case, supra. The-facts were indisputably established that E. IT. Crenshaw, Jr., failed and neglected either to bring the suit or to join therein; the absence of his name as a party in the pleadings is indication of the fact that he has failed and neglected to sue or'join the wife in her suit.

We fail to find any testimony or fact in connection with this suit and the hearing had, which would support a finding that the husband had not failed and neglected to institute the suit or to join the wife in doing so. We have found no case by our courts which holds or intimates that the failure or neglect of the husband must be based upon a good and sufficient reason. We think the effect upon the wife’s rights is the same if his failure and neglect are because of good or bad reasons or motives. If this was not true the wife could be deprived of a right to recover her property because of some unwarranted dereliction on the part of the husband. The statute (Art. 1983) was passed to meet just such a situation, for the wife’s protection. This is illustrated by the contention which has here arisen; the court had indicated to the parties that he would dismiss the wife’s case unless the husband joins her; the supplemental pleading filed subsequent to that announcement states, under oath of counsel, that he still refused to join, resulting in the abatement of her suit, and thus she would be deprived of a chance to recover what she claims to be her separate property. We know of no way to compel the husband to bring such- a suit nor to join her in one, if he wills to do otherwise; it would appear that a potential threat by a district court to dismiss the suit if he did not join her availed her nothing. When such a condition exists, the provisions of Article 1983 become available, and she may assert her rights independently of the husband.

It is argued by appellee’s counsel that, and not without some support in the record, the real reason for the husband’s failure and neglect to sue or join was to enable him to become a witness upon the trial and possibly testify to matters that he could not relate if he was in fact a party plaintiff. Conceding that this idea was his motivating cause, whether his supposition was correct or not is foreign to the question before us and we express no opinion upon it. We can see no difference for the necessity of applying the statutory provision to the wife’s rights,- whether the husband’s derelictions were prompted by good or bad motives, unless such motives amount to a fraud upon the court.

The point here involved is a new one, insofar as we are able to ascertain. We have been cited to no case in which a court has held that the good or bad faith of the husband in withholding action to recover the wife’s estate, or the motive or reason therefor, could be passed upon as determinative of the wife’s right to prosecute her own suit in such cases as this.

Obviously, with these things in view, it is said, in Speer’s Marital Rights in Texas, 3rd Ed., page 624, section 510: “No definite time is allowed the husband within which to bring the suit. When a cause of action has arisen in favor of the wife, and the husband fails or neglects it, then she may sue; or if he refuses for any cause.”

We think, and so hold, that the evidence was sufficient to support the allegations made that the husband has failed and neglected to join plaintiff in the suit and that there is no evidence of probative value to the contrary. The plea in abatement should have been overruled, and the previ-, ous order permitting the wife to prosecute the suit alone permitted to stand, and the cause be tried upon its merits.

For the errors shown, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent herewith. Reversed and remanded.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    MacFARLANE et al. v. DAVIS et al.
    No. 3716.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1940.
    Rehearing Denied Feb. 5, 1941.
    C. W. Howth, Adams, Hart & Daughtry, and Maston Meagher, all of Beaumont, and D. C. Bennett, of Orange, for appellants.
    W. P. Sexton, K. W. Stephenson, and Homer Stephenson, all of Orange, for ap-pellees.
   WALKER, Chief Justice.

About 1926 a public ferry was lawfully established by Orange Co. across the Neches river, near its mouth where it' runs into Sabine Lake, known as Dryden’s Ferry, and was discontinued about September 1, 1938. In 1938, the Port Arthur-Orange bridge was completed across the Neches river, between Dryden’s Ferry and the mouth of the river, and opened to public travel in 1938. Between the date that Dryden’s Ferry was established and the completion of the bridge, the State and Orange Co. maintained a public road leading from the City of Orange to the banks of the river on the Orange Co. side at Dryden’s Ferry, and across the river by ferry to a public road leading to the City of Port Arthur. In order to reach the banks of the river and the ferry on the Orange Co. side, Orange Co. built a wooden trestle across Old River Cove and from the Cove for one mile or more across a swamp to the banks of the river at the ferry. This trestle was a part of the public road leading from the City of Orange to the river, and was maintained by the State as a part of state highway No. 87. After the completion of the Port Arthur-Orange bridge across the river, the Orange Co. end of the bridge was connected with highway No. 87 at a point about two miles from the Dryden’s Ferry end of highway No. 87. After this connection was completed, the State abandoned the two mile cutoff on the old highway, including the trestle across Old River Cove and down to the ferry. After the ferry had been abandoned by the State, and the cutoff had become a county highway, Orange Co. posted a notice at the courthouse door in Orange Co. to the effect that on the 8th day of June, 1939, the trestle and the approach to Dryden’s Ferry would be abandoned and torn down and removed.

This suit was filed in district court of Orange Co. on the 20th day of June, 1939, by appellants, A. C. MacFarlane and C. W. Howth, against appellees, the County Judge and County Commissioners of Orange County and Orange Co., praying for judgment for a permanent injunction against them, restraining them from tearing down the trestle across Old River Cove and the swamp from Old River Cove to Dryden’s Ferry, and pending a hearing on the merits for a temporary injunction.

For cause of action, appellants alleged generally the facts plead above, and the following additional facts: Upon the completion of highway No. 87 to the river and the installation of Dryden’s Ferry, appellant MacFarlane purchased land in the W. A. Atkins survey adjacent to the ferry, and excavated, filled in, and established the same as headquarters for a fleet of tugs, dredges, barges, and other marine equipment incidental to his business of towing and his other activities requiring the use of his equipment, and he has continuously maintained the same at the end of highway No. 87, where it touches the Orange Co. side of the river. Appellant Howth owns land on both sides of the trestle and highway No. 87; he owned this land before the trestle was built, and he granted an easement free of charge across his land to Orange Co. for its use in building the trestle. Humble Oil & Refining Company owns a tank farm 'adjacent to the ferry landing. “Divers and sundry other citizens of Orange county and elsewhere” use highway No. 87. The abandonment of the highway and of the trestle, and the removal of the trestle, would cause appellants “irreparable loss and injury, for which there is no adequate remedy at law.” Appellant Howth granted an easement to Orange Co. across his land on the Atkins survey of about twenty-two acres - for the approach to the Port Arthur-Orange bridge, and, in part consideration for this easement, he and the Commissioners’ Court of Orange County agreed that the trestle described above, constituting a part of highway No. 87 across Old River Cove and the swamp on the Orange Co. side of the Dryden’s Ferry, “would be left intact and maintained by Orange county so long as the public or any portion of the public found it necessary to use the same.” It was further alleged that the destruction of the trestle would be a violation of this agreement. It was further alleged that the removal of the trestle would operate to destroy highway No. 87, and would make it impossible for the highway to be used as a road to the ferry or to any portion of the surrounding territory. It was further alleged that the notice posted by the Commissioners’ Court was not issued upon a petition or application signed by at least eight freeholders of the precinct in which highway No. 87 is situated, and that the publication of the notice was in violation of law, and that “the threat and purpose to destroy highway No. 87 by removing the trestle is in violation of Article 6703 of the Revised Civil Statutes of the State of Texas, in this, that the said statute provides that no first class or second class road shall be discontinued except upon vacation or nonuse for a period of three years, and in this connection, plaintiffs would represent that the road was in constant use by hundreds of vehicles daily up to the time of the completion of the bridge in September, 1938, and the said road is still in use by the public and has not been discontinued and there has been no nonuse of said road for a period of three years, or for any period of time.”

On presentation to him of the petition, the district judge of Orange county granted appellants the temporary injunction as prayed for; the required bond was executed and the injunction was duly issued and was served on the 21st day of June, 1939. On the 13th day of October, 1939, the judge entered his order continuing the temporary injunction in full force and effect “until further orders of this court.”

Appellees answered on the 12th day of July, 1940, by general demurrer, general denial and specially as follows:

“Defendant specially denies the violation of Article 6703 of the Revised Civil Statutes of the State of Texas as set out in paragraph four of plaintiff’s petition. The aforesaid statute provides that ho part of a public road shall be discontinued until a new road is first built connecting the parts not discontinued. Orange County has constructed a new road to the new Port Arthur-Orange Bridge and this road connects with the road that is not discontinued and the same is one-fourth of a mile shorter in distance.
“The value of the material of this trestle is several thousand dollars and would be used by the Four County Commissioners of Orange County, Texas, in repairing and building smaller bridges throughout the county if the Court should dissolve this injunction. Should the court not dissolve this injunction the result would be an injury to the citizenship of Orange County and cause the expenditure of thousands of dollars of public money in the buying of materials for the construction of smaller bridges.”

Appellants filed their first supplemental petition on the 12th day of February, 1940, consisting of general and special demurrers and the general denial.

On trial to the court without a jury, judgment was entered on the 19th day of February, 1940, “that the temporary injunction heretofore granted in this court should be in all things dissolved and that the permanent injunction and all other relief prayed for by plaintiffs should be in all things denied and that defendants should recover their costs of suit.” The court also entered an order staying the execution of the judgment and continuing in force the temporary injunction pending appellants’ appeal. From the final judgment, appellants have prosecuted their appeal to this court.

The trestle, more than a mile long from Old' River Cove to Dryden’s Ferry, is constructed of “treated” wood, and is in good condition; with minor repairs it would serve the public for ten years or more; the trestle is an essential part of the roadway and must be used to reach Dryden’s Ferry. Appellant Howth owns most of the Atkins survey; the two-mile section of highway No. 87 abandoned by the State, includes the trestle in controversy. Originally, appellant Howth granted Orange Co. an easement free of charge across his land for use in constructing the trestle; approximately 2,650 feet of the trestle is on his land. Appellant Howth’s land on the Atkins survey extends down to the banks of the Nechés river at Dryden’s Ferry, and has potential value as industrial and building sites; this value would be greatly impaired, if not totally destroyed, if the trestle were torn down.

After the completion of highway No. 87 by building the trestle from Old River Cove to the banks of the river and after the installation of Dryden’s Ferry in about 1926, appellant MacFarlane purchased twelve acres of land on the banks o’f the river on the Orange Co. side, adjacent to Dryden’s Ferry; six acres of this land faced on the river and abutted upon both sides of highway No. 87 as it was then maintained. The destruction of the trestle from Old River Cove to Dryden’s Ferry would render MacFarlane’s property practically worthless; as the road is now maintained, this land is of great value to appellant MacFarlane.

Other parties beside appellants in the locality of Dryden’s Ferry own land adjacent to and bordering on that section of highway No. 87 abandoned by the State in the manner stated above, including Sabine Transportation Company, Humble Oil & Refining Company, and the Sun Company ; ' these parties would be greatly damaged if the roadway were destroyed; they bought their property after highway No. 87 had been established and the trestle constructed, and the existence of the road and trestle entered into the consideration paid by them for their land.

No petition was presented to appellees signed by eight freeholders in the precinct where the trestle is situated' as required by Article 6705; in posting the notice of their intention to remove the trestle and close the road, and in threatening to discontinue the road, appellees were acting solely on their own initiative; their power to act was not invoked by a petition.

Opinion.

Having bought their property in relation to that part of highway No. 87 over which the trestle was built, and abutting thereon and adjacent thereto, appellants acquired a property interest in the trestle as an essential part of the highway, and without which the highway cannot be used. This property interest in the trestle entitles them to its use, free from obstruction or hindrance by appellees. Commissioners’ Court of Harris County et al. v. Kaiser, Tex.Civ.App., 23 S.W.2d 840, cited with approval and quoted from by the Commission of Appeals in Meyer v, Galveston, H. & S. A. Ry. Co., 50 S.W.2d 268. The point at issue is not appellants’ right to compel appellees to maintain and repair the trestle as a part of highway No. 87, but to restrain them from -destroying the trestle, which is an essential part of the highway, and thereby destroying appellants’ right to use the'highway. If ap-pellees’ power to discontinue the abandoned section of highway No. 87 as a public road be conceded, this power is restricted to the abandonment of its maintenance as a public highway, and does not include the power to tear down the trestle and deny its use to appellants who bought their property abutting on the highway, the value of which would be destroyed, or. greatly impaired, by the destruction of the trestle. In support of this conclusion, we quote the following proposition from the Kaiser case, supra [23 S.W.2d 842] : “The power to discontinue a public road conferred by the cited statute is restricted to abandonment by the county of its maintenance as such public highway, and does not include the right to deny its use to the owners of property situated thereon.”

It follows that the.judgment of the lower court should be reversed and judgment here rendered restraining appellees from tearing down the trestle in issue.

Reversed and- rendered.

On Rehearing.

The following prayer by appellants sustains our conclusion that they prayed “for a permanent injunction”: “Wherefore, plaintiffs pray that this Honorable Court grant a temporary injunction against the defendants and each of them restraining them and each of them from removing said wooden trestle and approach to the said ferry landing, with notice to show cause why the said injunction should not be made permanent upon hearing and that upon hearing this Honorable Court enter an order restraining the said commissioners from discontinuing and destroying the use of said road by destroying the trestle thereof, for a period of three years from and after the completion of the bridge, to-wit: for a period of three years from and after September 1, 1938, unless at the end of that time the road be still in use by the public and they further pray for all costs of court and for such other relief, general and special, to which plaintiff may be entitled in law or in equity.”

Appellant assigns error against the following fact conclusion: “Appellant Idowth’s land on the Atkins survey extends down to the banks of the Neches river at Dryden’s Ferry, and has potential value as industrial and building sites; this value would be greatly impaired, if not totally destroyed, if the trestle were torn down.”

Our opinion shows that appellant Howth sold to appellant MacFarlane that portion of the river bank immediately adjacent to Dryden’s Ferry; in this fact conclusion it was not our intent to find that appellant Howth owned the land immediately adjacent to the ferry. However, appellant Howth’s holdings on the banks of the river were limited only by his sale to appellant MacFarlane.

In the following fact conclusion, the evidence does not support us in saying that the property of Sabine Transportation Company, Humble Oil & Refining Company, and the Sun Company, was “adjacent to and bordering on that section of highway No. 87 abandoned by the state”: “Other parties beside appellants in the locality of Dryden’s Ferry own land adjacent to and bordering on that section of highway No. 87 abandoned by the State in the manner stated above, including Sabine Transportation Company, Humble Oil & Refining Company, and the Sun Company; these parties would be greatly damaged if the roadway were destroyed; they bought their property after highway No.. 87 had been established and the trestle constructed, and the existence of the road and trestle entered into the consideration paid by them for their land.”

We overrule appellees’ contention that the relief granted by this court was without foundation in appellants’ pleadings. This is a proceeding in equity. Appellants prayed for general relief on the facts detailed in their petition. The relief granted by our judgment does not extend beyond the equities arising on the facts plead. Appellees correctly assert that “it must be presumed that the court found against appellants on all theories presented.” The relief we granted appellants is grounded on the undisputed facts. Appellants’ motion for additional fact conclusions is granted to the extent herein stated.

The motion for rehearing is overruled.


author: HALL, Justice.

text:
    BURRAGE et ux. v. HUNT et al.
    No. 5691.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1941.
    Rehearing Denied Feb. 6, 1941.
    J. Lee Zumwalt and John W. Pope, both of Dallas, for appellants.
    McEntire & Shank, of Dallas, and L. L. James, of Tyler, for appellees.
   HALL, Justice.

This action was brought in the 44th District Court of Dallas County by appellants against appellees, and had for its purpose the collection of the money alleged to be due them for oil produced and sold from an undivided two acres of land theretofore awarded to appellants on April 4, 1932, by said 44th District Court by an order entered in the case of Adkins v. Joiner. The undivided two acres was a part of a 500-acre tract of land known as the Daisy Bradford tract located in Rusk County, Texas, in the East Texas oil field.

To this action appellees filed a plea of privilege to be sued in Smith County, the county of their residence. This plea was sustained and the case was transferred to Smith County. Upon the merits, appellees averred that the judgment of the 44th District Court of April 4, 1932, entered in the case of Adkins v. Joiner, awarding title to the undivided two acres of land to appellants, was void for the reason that it affirmatively appeared from the record in that case that the 44th District Court of Dallas County did not have jurisdiction of either the parties or the subject-matter affected by said judgment. To this phase of appellees’ answer appellants leveled a plea in abatement in which it was contended that:

“From the judgment of the court of date June 10, 1933, overruling the motion of Hunt, individually and as Trustee, seeking to set aside the judgment in behalf of Burrage, the said Hunt, individually and as Trustee, appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, by filing and having approved a bond for cost on June 15, 1933. The Court of Civil Appeals on the ,25th day of May, A. D. 1935, by its order and judgment dismissed said appeal, thereby affirming the judgment’of the trial court and affirming the original judgment of April 4, A. D. 1932, rendered in behalf of Burrage.
“ * * * that thereby, said judgment •is res adjudicata and bars- and concludes said Hunt, or any person claiming under him, from attacking the validity and finality of the Burrage judgment of date April 4, A. D. 1932.”

Appellants also alleged as a plea in bar based upon the judgment of the 44th District Court of Dallas County dated October 31, 1936, restraining the prosecution by appellees of a suit in trespass to try •title filed in Rusk County against appellants relating to the title of the two un-idivided acres of land, which judgment was affirmed by the -Court of Civil Appeals, writ of error dismissed by the Supreme Court. Many other averments are contained in the lengthy petition, of appellants, and answer of appellees, which are not set out herein for the reason that this opinion will be grounded solely on the effectiveness of the judgment of April 4, 1932. A very comprehensive statement of the litigation between the parties hereto leading up to the time of the trial of this case will be found in Hunt v. Burrage, Tex.Civ.App., 84 S.W.2d 1098; Id., Tex.Civ.App., 95 S.W.2d 202; Hunt Production Co. v. Burrage, Tex.Civ.App., 104 S.W.2d 84, and Burrage v. Hunt Production Co., Tex.Civ.App., 114 S.W.2d 1228, to which reference is here made. Repetitions of parts of said statements will be indulged in, only when necessary to a proper understanding of the issue here under discussion.

Trial was to a jury on special issues. Both appellants and appellees made motion for judgment on the verdict of the jury and non obstante veredicto. Appel-lees’ motion non obstante veredicto was sustained. and the court entered judgment overruling appellants’ plea in bar, holding void the judgment of April 4, 1932, awarding the undivided two-acre -interest in the Daisy Bradford 500-acre tract to appellants, and that appellants “recover nothing by reason of their suit.”

Appellants bring forward 85 propositions based upon 95 assignments of error. Several of these complain of the action of the trial court in overruling their plea in bar and holding the judgment of April 4, 1932, void; typical of these are their propositions Nos. 3 and 4 as follows:

“No. 3: • The trial court, on October 31, 1936, issued a writ of injunction against the Hunt Production Company, prohibiting the prosecution of the suit in trespass to try title brought by the defendant against said Burrage, seeking recovery of the property vested in him by his judgment of April 4, 1932. The injunction was issued after the Hunt Production Company had filed an answer asserting the judgment of April 4, 1932, to be void. The trial court, in issuing said injunction overruled the attack upon the .judgment, and upon appeal, the Court of Civil Appeals affirmed the judgment of the trial court. The record shows that all the defendants are in privity with the said H. L. Hunt. Therefore, the judgment was binding upon all the defendants and barred and concluded them from, in any manner attacking the plaintiff’s judgment. The court, therefore, erred in overruling plaintiffs’ plea in bar.”
“No. 4: The record shows that upon the Bill of Review proceedings, the trial court, on June 10, 1933, denied any recovery, and held that the judgment of April 4, A. D. 1932, in behalf of Burrage, was valid and final. Upon appeal, the Court of Civil Appeals affirmed the judgment of the trial court. Its mandate was duly issued and filed with the trial court, and which required the trial court to enforce and make effective said judgment. The defendants herein are in privity with-the said H. L. Hunt, and the adjudication was and is binding upon them. The court,' therefore, erred in overruling plaintiffs’ plea in bar.”

On October 27, 1930, C. R. Adkins and another instituted suit against C. M. Joiner, trustee, in the 44th District Court of Dallas County praying' for appointment of a receiver and for partition of certain oil leases held by Joiner in Rusk County, Texas, upon which Joiner had brought in the discovery well of the East Texas oil field. On October 31, 1931, Ernest R. Tennant was appointed receiver by the 44th District Court of Dallas County, qualified'as such, and took possession of all the Joiner, trustee, oil and gas leases, including the 500-acre Daisy Bradford lease, hereinafter referred to as the 500-acre tract. Shortly thereafter Tom C. Clark was by said District Court appointed master in chancery. On January 3, 1931, H. L. Hunt and a number of other persons filed an intervention in the Adkins v. Joiner suit (hereafter 'referred to as the Adkins suit) alleging that they were the owners of the leasehold on the 500-acre tract, and seeking its dismissal from said .Adkins suit. On April 7, 1931, appellant Richard W. Burrage filed his intervention in this original case, alleging that:

“ * * * on August 28, 1928, one W. J. Gamble of the County of Dallas, State of Texas, being accompanied by - Joiner, a son of C. M. Joiner, came to your intervenor’s home town, McKinney, Texas, on said date, and did at said time, acting as the agent and representative of the Joiner Oil interests or the Joiner Oil Well in East Texas,, sold to the intervenor an undivided interest in and to the C. M. Joiner oil properties in East Texas, and that your intervenor at- said time, executed and delivered his check made payable to the order of W. J. Gamble drawn on the First National Bank of McKinney,’Texas, for the sum of $50.00 with a notation on the face of said check reading as follows :
‘C. M. Joiner Lease and Oil Well Syndicate, Overton, Texas.’
“That the said check was indorsed by the said W. J. Gamble and was duly paid.
“That yoúr intervenor spends most of his time in the State of New Mexico and ' has not had occasion to keep m touch with the progress made by the Joiner Lease & Oil Well Syndicate. Your in-tervenor further alleges and shows to the court that at the time he executed and delivered his said check for the sum of $50.00 that said agents and representatives of the said C. M. Joiner stated to him that a certificate of interest or stock would be immediately issued and sent to -your intervenor, and your intervenor alleges that no certificate of interest nor any stock of any character whatsoever has thus far been delivered to him, and says that by reason of the transaction herein alleged, and the acceptance and use of the monies passed and delivered by the said C. M. Joiner Lease & Oil Well Syndicate, your intervenor has an interest therein in proportion to his said purchase and asks this court to hear evidence upon this claim, and to determine the undivided interest of your intervenor of said concern and to fix said interest by judgment in this court.
“Wherefore your intervenor prays that a hearing be granted him upon this petition in intervention, and that upon full-consideration thereof, he be granted a decree or order of this Honorable Court fixing your intervenor’s interest in said syndicate as the facts will warrant.”

On April 18, 1931, H. L. Hunt and his associates amended their original intervention theretofore filed on January 3, 1931, and alleged that they were the sole owners of the leasehold on the 500-acre tract, and prayed for a hearing before the master on their amended intervention and for a- dismissal from the Adkins suit of the leasehold estate covering the 500-acre tract. This hearing was had, and on the same date the 44th District Court of Dallas County entered its judgment which, after describing the 500-acre tract, decreed as follows:

“And it appearing to the court from the findings of the Honorable Tom C. Clark, Master in Chancery herein, and from the evidence adduced before the court, that said above named parties are the only parties of record claiming any right, title or interest in or to said above described property, and that said motion should be granted, and said partition suit and receivership, in so far as it applies to them and said above described property should be dismissed;
“It is therefore considered by the court, and so Ordered and Decreed that said, above styled and numbered cause, in so far as it applies to the said above described property and to that extent only, is dismissed, and the Receiver is directed to release said property, together with all personal property located thereon from his custody and control as such receiver, and the right of possession thereto shall revert to and vest in the various owners of said property as their interest might appear, and said owners of said property shall be entitled to receive any and all oil taken from said land, now in storage in the tanks, and all oil and proceeds of oil run from said property since March 31st, 1931, said dismissal being without prejudice to the rights of the various owners of and/or claimants to said property as among themselves or with other parties, and without prejudice to the rights of H. L. Hunt under and by virtue of his said contract with said Ernest R. Tennant as Receiver as of date January 14, 1931, as amended April 18th, 1931, and subject to any outstanding charges for equipment or labor not included in the receiver’s accounts and all proper taxes to be paid by the said owners thereof. ' The order of appointment of the receiver herein and all other orders and decrees heretofore entered in this cause shall not be affected by this order of dismissal but are expressly approved and confirmed.”

This judgment also approves the receiver’s report relative to the 500-acre tract and discharges the sureties on the receiver’s bond “from all liability growing out of or by reason of the possession or handling by the receiver of the above mentioned and described tract of land” (500-acre tract). The sum .of $8,250 was decreed to be the compensation due the receiver, his attorneys and the master in chancery chargeable to the 500-acre tract. This sum, together with the pro rata part of the court cost due by said 500-acre tract, was paid by H. L. Hunt at the time the leasehold on the 500 acres was by the trial court released to him and his associates. Nearly one year after this order of dismissal was entered, the 44th District Court of Dallas County entered the following judgment:

“On this the 4th day of April A. D. 1932, the attention of the court being called to the fact that the Master in Chancery heretofore filed a report approving the claim of Richard W. Burrage, which said report has not been acted on by this court;
“It is therefore ordered, adjudged and decreed by the court that Richard W. Bur-rage, have and recover herein the title to the following described property, in accordance with the report of the Master in Chancery heretofore made: two undivided acres in Syndicate No. 3 comprising the 500-acre Daisy Bradford Tract and described as follows: (Here follows description of the 500-acre tract and another interest not involved in this suit).
“It is further ordered that the title to the above described property be and the same is hereby quieted in the said Richard W. Bur-rage.”

After the judgment of April 18, 1931, dismissing from the receivership in the Adkins case the 500-acre tract, and before the entry of the judgment of April 4, 1932, set out next above, no citation was issued and served on any of the appellees (nor did they waive the issuance and service of citation nor voluntarily appeared) apprising them that the receiver had reacquired control of the 500-acre tract, and of the hearing of the claim asserting an interest therein by Burrage. From this record it clearly appears that the only purpose of the intervention by H. L. Hunt and associates of January 3, 1931, and as amended on April 18, 1931, was to secure the release from the receivership in the Adkins suit of the 500-acre leasehold, on their allegation that they were the sole owners thereof. This they effectively accomplished by the judgment of April 18, 1931, and thereafter were not required to take notice of any further proceeding had in the original Adkins v. Joiner receivership. They and their property were out of that case, and the only method by which the jurisdiction of the 44th District Court could again be exercised over them or their property, more than eleven months after their dismissal therefrom, was by the service of process on them, by waiver of the issuance and service of process, or by a voluntary appearance. Sowell v. Jones, Tex.Sup., 4 S.W. 620; Watts v. Overstreet, 78 Tex. 571, 14 S.W. 704; Turman v. Turman, Tex.Civ.App., 46 S.W.2d 447, same case on motion for rehearing after answer by Supreme Court to certified question, Tex.Civ.App., 71 S.W.2d 898. There is no contention in this record that any of appellees were served with process after the order dismissing Hunt and associates and the 500-acre leasehold from the Adkins suit on April 18, 1931, and before the entry of the judgment awarding the appellants two undivided acres interest in the 500-acre leasehold on April 4, 1932. The judgment of April 4, 1932, does not recite service upon appellees or any one else. “Therefore we must look to the entire record, and, if that shows a failure to observe the law in a material point [respecting service of process], the judgment must be held to be void.” Hopkins v. Cain, 105 Tex. 591, 143 S.W. 1145, 1147, and cases there cited. When we look, then, to the record in the Adkins case, we find the affirmative act of the 44th District Court recorded in the judgment of April 18,' 1931, dismissing Hunt and associates and their 500-acre leasehold from that case, and payment by Hunt of the proportionate part of the expenses of the receivership arid court costs chargeable to the 500-acre leasehold, thus conclusively showing that the judgment of April 4, 1932, awarding to appellant Bur-rage two undivided acres of the 500-acre leasehold, was without service of citation on H. L. Hunt or any of his associates, 'or waiver and acceptance of service by them, or appearance by them. Said judgment is, therefore, a nullity. Levy v. Roper, 113 Tex. 356, 256 S.W. 251. See also Green v. Green, Tex.Com.App., 288 S.W. 406; Duncan v. Marlin Motor Co., Tex.Civ.App., 41 S.W.2d 740, writ refused; Arcadia Refining Co. v. Mrs. Alice Cook, Gdn., 146 S.W.2d 767, opinion by this court.

It must be remembered also that the intervention of Burrage made no reference to either Hunt or the 500-acre tract of land, or to any tract of land, and at the time Bur-rage filed his intervention and on the date of the dismissal of Hunt and his associates and the 500-acre leasehold from the Adkins case, the receiver in that case had in his possession several other oil and gas leaseholds belonging to Joiner, trustee.

Appellants, however, make the contention that appellees are precluded from attacking in this suit the judgment of April 4, 1932, under the doctrine of res adjudicata. On May 25, 1932, H. L. Hunt filed a bill of review in the 44th District Court of Dallas County to set aside the -judgment of April 4, 1932, “and alleged (according to the late Chief Justice Jones of the Fifth Court of Civil Appeals in the case of Hunt v. Burrage, 84 S.W.2d 1098, 1099) what appears on the face of the allegation to be good ground for setting said judgment aside.” That case was tried and judgment rendered by the 44th District Court on June 10, 1933, refusing to set aside the judgment of April 4, 1932. Hunt appealed from that judgment. Motion was made on that appeal by appellee Richard W. Burrage, appellant here, to dismiss the' appeal “because of a total want of any interest of Hunt in the subject-matter of the judgment.” Hunt v. Burrage, supra. It was shown that prior to the filing of the bill of review, Hunt, individually and as trustee, had conveyed all interest held by him in the 500-acre leasehold to the Hunt Production Company, a corporation. In discussing H. L. Hunt’s interest in the subject-matter in that suit, both in the trial court and in the court of civil appeals, the late Chief Justice Jones in Hunt v. Burrage, supra, held:

“After the organization of the corporation and appellant’s election as its president, and the selection of appellant and the other two stockholders as the board of directors, the motion to set aside the judgment was filed by appellant May 25, 1932. When it was developed on the hearing of this motion that appellant, individually and as trustee, at the time the motion to set aside the judgment was filed, had no interest in the subject-matter of the judgment, the court entered an order, overruling the motion and refusing to set aside the judgment. Manifestly, this was the only order that could have been entered. Johnson v. Johnson (Tex.Civ.App.) 191 S.W. 366; Royal Neighbors of America v. Fletcher (Tex.Civ.App.) 230 S.W. 476. The court could not decree any interest in the said land to the corporation, because it was not a party to the motion and not before the court, even if the judgment of April 4, 1932, was set aside; nor could the court decree the title to the tract of land in appellant, because the undisputed evidence showed that he owned no interest therein.
“tías appellant the right to have the order of the court, refusing to set aside the judgment of April 4, 1932, reviewed by this court? We think not. * * *
“It necessarily follows that, in our opinion, appellant was affirmatively shown to have no interest, either individually or as trustee, in the subject-matter of the judgment appealed from, and hence cannot prosecute this appeal, and that the appeal attempted to be prosecuted by him should be dismissed, and it is so ordered. We do not pass on any of the other issues raised on this appeal.”

Whether we agree with the conclusion set out above is of no consequence here. It is clear from that opinion that neither the Dallas Court of Civil Appeals nor the 44th District Court of Dallas County passed upon the merits of Hunt’s bill of review attacking the validity of the judgment of April 4, 1932. Nor do we think the Dallas Court of Civil Appeals or the 44th District Court of Dallas County passed upon the merits of Hunt's bill of review in the case of Hunt Production Co. v. Bur-rage, 104 S.W.2d 84, in granting a temporary injunction against H. L. Hunt restraining the prosecution by him of a trespass to try title suit in Rusk County against Burrage involving the title to the undivided two-acres interest in the 500-acre leasehold. There was no attempt thereafter to make this injunction permanent. We think it pertinent here to quote from the conclusion of law filed by the able trial judge in this case as follows: “The legal effect of the final judgment and decree of the 44th District Court, that is, the last judgment and decree of that court made in this case whereby it sustained pleas of privilege of defendants and ordered that case transferred to this court in Smith County, on January 25, 1937, and the affirmance of that judgment by the Dallas Court of Civil Appeals, seems to be that the trial court and the appellate court both thereby reversed all of its former orders and decrees as to the case now here; since, if there was a valid judgment in favor of Burrage in that court, it could not lawfully send it to Smith County to be enforced but would enforce its own judgment, if, in reality, this suit is, as claimed by plaintiffs, a motion to enforce said judgment and is not a new cause of action.”

In our opinion, this is the first time the validity of the judgment of April 4, 1932, has been squarely before the trial and appellate courts for review. From a careful examination of the entire record herein, we conclude that the judgment of April 4, 1932, is void for the reason that it was rendered by the 44th District Court of Dallas County when that court was without jurisdiction of either the property or persons affected thereby, as is affirmatively reflected by the record in the Adkins case in which said judgment was rendered. This being true, it may be collaterally attacked by any party at any time it adversely affects his interest. Roller v. Ried, 87 Tex. 69, 26 S.W. 1060; State Mortgage Corp’n v. Traylor, 120 Tex. 148, 36 S.W.2d 440, and cases there cited.

Appellants’ title to the undivided two acres in the 500-acre leasehold rests entirely upon the judgment of April 4, 1932. And since that judgment is void, their title to the two undivided acres in the 500-acre tract based thereon has failed, and the judgment of the court below is correct. The conclusions reached by us as expressed above render a discussion of the other assignments and propositions brought forward unnecessary.

The judgment of the court below is therefore in all things affirmed.


author: LESLIE, Chief Justice.

text:
    DE BUSK et ux. v. JACKSONVILLE BUILDING & LOAN ASS’N, Inc.
    No. 2082.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 17, 1941.
    Rehearing Denied Feb. 7, 1941.

      H. L. DeBusk, of Abilene, for appellants.
    Norman, Stone & Norman, of Jacksonville, and Shook & Shook, of Dallas, for appellee.
   LESLIE, Chief Justice.

The Jacksonville Building & Loan Association, Inc., sued Henry L. DeBusk and wife, Winnie Guffee DeBusk, to establish and foreclose a vendor’s lien' (purchase money) on lot S, block 3, Ludwig Place Addition to the city of Kilgore, Gregg County, Texas. The defendants entered a general denial, pleaded homestead rights, etc. The trial before the court without a jury resulted in a judgment for the plaintiff for the indebtedness -with foreclosure of the lien. The trial court made findings of fact and conclusions of law.

The appellants have based their appeal on the contention that their homestead rights in the lot accrued prior to the lien sought to be foreclosed, and, therefore, immune from foreclosure and sale by the plaintiff. In their brief, the appellants state their tontention in this language: “It is deemed not expedient to set forth with particularity the pleadings of the appellee, for it is admitted that unless appellant is correct in the contention of homestead dedication prior to the alleged lien, that the pleadings and the evidence otherwise are sufficient to sustain the judgment rendered.” (Italics ours.) This narrows the issue. The origin and the validity of the appellee’s note and the lien sought to be foreclosed arise from the following circumstances:

M. W. Laird owned the lot and residence and the DeBusks, being desirous of acquiring the same for 'a home,' evidently found it convenient and necessary to purchase it on terms other than by down payment of cash in full. This is evidenced by a letter of August 30, 1938, addressed by said Henry L. DeBusk to S. S. Laird, the father of M. W. Laird, who was acting in some of the negotiations for the son, at the time a student in the University of Texas. That communication sets forth in general terms the manner in which the deal was to be consummated. The letter makes seven specifications: (1) $2,500 was to be the total consideration; (2) the DeBusks were to have permission to move into the place “at once”, or as soon as possible; (3) they were to be privileged to make some improvements for “the convenience of the homestead”; (4) they were to make application for a loan with the Jacksonville Building & Loan Association; (5) Laird was to furnish an abstract to be submitted to the Loan Association; (6) the amount of the loan, if any, was to constitute the “cash consideration” paid down, and (7) if such loan turned out to be less than $2,500 the DeBusks were to pay the difference.

With such general understanding the negotiations proceeded and the DeBusks made application to the Loan Association for the contemplated loan of $2,500. The application stated: “The money hereby secured and applied for is for the purpose of purchase price secured with usual vendor’s lien * * * in favor of vendor same to be merged in the proposed loan."

Then follows provisions as to improvements, insurance, etc., and in paragraph 6 it is stipulated: “Title to said property is now vested in M. W. Laird, acquired by deed from Mrs. Julia Stanley et vir on July 1, 1937, purchase price paid $2500 cash.”

Paragraph 14 of the application is as follows: “Is this property your homestead? Yes. If not, give full legal description of your homestead here: I bought this place for a home for my family consisting of a wife and two little girls. The loan sought is $2500 of the purchase price, making a legal vendor’s lien which will be merged in the loan."

Following the applicants’ answers to 31 different questions, the application contains the further statements: “The foregoing statements are made by me for the purpose of securing this loan and I hereby warrant same to be true and correct * * *. I will furnish complete and satisfactory abstract of title to said premises, same to be held by you until said loan is fully repaid; I agree to execute, or cause to be executed, all instruments which may in the opinion of your attorney be necessary to secure said loan, pay all expenses of making same * * *. I agree that you shall be sub-rogated to all the liens taken over or discharged by you from the proceeds of this loan and the final closing of this loan shall be in your uncontrolled discretion. * * *>>

On the trial the respective litigants, through their attorneys, stipulated as follows :

“It is agreed by and between the counsel for the parties in this suit that the deed records in Gregg County, Texas, show that the legal title to lot 5 block 3 of the Ludwig Place Addition to the city of Kilgore, Gregg County, Texas, was in M. W. Laird and wife, Mrs. M. W. Laird, on October 20 (10) 1938 upon which' date M. W. Laird and wife, Mrs. M. W. Laird, conveyed said property to Henry L. DeBusk and wife, Winnie Guffee DeBusk, by deed of said date.
"It is agreed by and between the parties, plaintiff and defendants, through their respective attorneys of record, that at the time of the institution of this suit, that the defendants, and each of them, were in default in the payment of the monthly payments on the indebtedness due the plaintiff for a period of more than 60 days, and that after said default and before the institution of suit the plaintiff had exercised its option and had declared all of said indebtedness due and unpaid, subject to proof of the exact amount due.”

The deed of October 20 (10), 1938, by which the Lairds conveyed said property to the DeBusks, recites a consideration of $2,500 evidenced by two promissory vendor’s lien notes, payable to the order of M. W. Laird, the first for $1,800 and the second for $700, bearing interest at 7% per annum, etc. These instruments are in the usual form of purchase money vendor’s, lien notes, containing, among others, the stipulation: "This note ($1800) is this day given by the undersigned as part of the purchase price for said mentioned property; and it is understood and agreed that failure to pay this note as above promised or any interest thereon when due shall at the option of the holder of said note mature said note and it shall at once become due and payable, and the vendor’s lien or deed of trust lien herein mentioned, either or both, shall become subject to the foreclosure proceedings at the option of the holder.”

The $700 note was made a second lien, or inferior to the $1,800 note.

Following the execution and delivery of these notes by the DeBusks, M. W. Laird and wife, the owners of the same, sold and transferred the $1,800 note, With lien securing it, to the plaintiff, Jacksonville Building & Loan Association, a corporation. In addition to the statement that they executed and delivered the note, the transfer recites “* * * said note constituting a .first lien on the property hereinafter described * * * ” and that it was "secured by the vendor’s lien therein expressed ⅜ ⅝ ⅜ **

In addition to the liens noticed, the De-Busks on November 3, 1938, executed to the. Building & Loan Association a (deed of trust) note and a deed of trust to secure the payment of the $1,800 purchase money note, according to the terms of the loan. Among other provisions that deed of trust note carried the following:

“This note is given in renewal and extension of the following described existing liens: Being that certain vendor’s lien note in the principal sum of $1800 constituting a first and superior lien dated October 10, 1938, executed by Henry L. DeBusk and wife, Willine Guffee DeBusk, to M. W. Laird, or order, * * * Which said note is fully set out and described in that certain warranty deed dated October 10, 1938, executed by M. W. Laird and wife, Mrs. M. W. Laird, to Henry L. DeBusk, and wife, Winnie Guffee DeBusk * * *.

“This note (deed of trust note) is secured by deed of trust of even date herewith, 'executed by the undersigned [De-Busks] to William E. Stone, Trustee” for the Loan Association.

The deed of trust of date November 3, 1938, is in the usual form conveying the property in question, etc. It contains a copy of said “deed of trust note” and recites :

“This note is given in renewal and extension of the following described existing liens: Being that certain vendor’s lien note in the principal sum of $1800 constituting a first and superior lien dated October 10, 1938, executed by Henry L. DeBusk and wife, Winnie Guffee DeBusk, to M. W. Laird, or. order, etc. * * *
“And it is distinctly understood and agreed that the note herein and hereby secured is given for money this day advanced by the Jacksonville Building & Loan Association, a corporation, * * * taking up, purchasing, renewing and extending the above mentioned indebtedness and it is also understood and agreed that the taking of this deed of trust shall in no manner or way waive, affect, release or impair the validity of the liens offered securing the payment of the same, but shall remain in full force and effect until the full and final payment of the note herein and hereby secured, and the said Jacksonville Building & Loan Association, its successors or assigns, are hereby subrogated to all liens, right, title, interest and remedies under and by virtue of any and all of the above mentioned liens and slwll have the absolute and uncontrolled right of application of payments made thereon * * *.
“It is further agreed and stipulated that the security herein and hereby provided shall not affect or be affected by any other or further security taken or to be taken for the same indebtedness or any part thereof; and the said party of the first part hereby declares that the property hereinbe-fore mentioned and conveyed to the party of the second part forms no part of any property by them owned, used, occupied, or claimed as their homestead or as exempt from forced sale under the laws of the State of Texas, and disclaims and renounces all and every claim thereto under any such law or laws.”

The trial court made rather extensive findings of fact and conclusions of law. Among these, he finds that the plaintiff is the owner of the $1,800 note and lien, and that it acquired the same before maturity, paying a valuable consideration therefor, and “without notice of any infirmity or defect in the title of the transferrors of said debt and lien and without notice of infirmity or defect in said debt and lien;” that the plaintiff had no notice of any kind or character of the negotiations between the DeBusks and S. S. Laird, the father of M. W. Laird, who was at the time absent in Austin. That the' DeBusks moved into the residence, etc., under an arrangement with the father and in contemplation of a subsequently consummated deal.

Obviously, this is a suit to foreclose the original vendor’s lien, reserved and given to secure the payment of the original purchase price in suit. The court’s findings of fact are abundantly supported by the testimony. These, plus the undisputed testimony, in our judgment, warrant and require the judgment rendered by the trial court. The principles involved are so elementary that it would appear to be unnecessary to lengthen the opinion'by a discussion of the same. This sufficiently disposes of all contentions presented.

However, under the three-cornered negotiations between the owner of the land, the purchaser of the property and the Loan Company, furnishing the cash consideration, it was the express understanding that the Loan Company was to have a lien upon the property purchased to secure the cash advancement and such lien was in fact executed by appellants. There would seem to be no ground upon which to doubt this interpretation of the record. The appellee acquired the original note and vendor’s lien held by Lairds. Such note and lien were transferred directly to the appellee and they were renewed and extended for the benefit of appellee when appellants executed the deed of trust and note representing the original purchase money consideration. Under' such circumstances the vendee (appellants) could not acquire in the property any homestead rights superior to such original purchase money vendor’s lien. Art. 16, sec. 50, Const. of Texas, Vernon’s Ann. St.; Art. 3839, R.S.1925; Floyd v. Hammond, Tex.Com.App., 268 S.W. 146; Woods v. West, Tex.Com.App., 37 S.W.2d 129; Berry v. Boggess, 62 Tex. 239; Kangerga & Bros. v. Willard, Tex.Civ.App., 191 S.W. 195; Walsh v. Ford, 27 Tex.Civ.App. 573, 66 S.W. 854; Jones v. Male, 26 Tex. Civ.App. 181, 62 S.W. 827; 22 Tex.Jur. p. 294, § 206. Simply stated, and as held in Woods v. West, Tex.Com.App., 37 S.W.2d 129, 132: “Until purchase money for property is paid, the purchaser has no such interest therein as would support a homestead claim against the person who advanced the purchase money under the agreement whereby he was to have a lien.”

The fact that the appellants may have occupied the property somewhat in advance of the consummation of the deal and before they received their deed to the property constitutes no obstacle to the appellee’s right of foreclosure under the circumstances detailed. Curtis v. Speck, Tex.Civ.App., 130 S.W.2d 348, writ refused; Doak v. Casner, Tex.Civ.App., 101 S.W.2d 1033, writ refused; Smith v. Clark, Tex.Civ.App., 266 S.W. 518. From the Curtis-Speck opinion [130 S.W.2d 350] we take the following:

“Defendant contends that since the property in question was occupied by him as a homestead, under a contract of sale prior to its actual purchase and prior to the execution of the purchase-money notes sought to be foreclosed, that he had acquired a homestead right therein superior to the vendor’s and deed of trust liens retained to secure the payment of said notes. We cannot sustain this contention. The rule has been definitely established in this state that until the purchase money for property is paid, the purchaser has no such interest therein as will support the homestead right against the person to whom such purchase money is due. 22 Tex.Jur. p. 296. It is further the established law in this state that where a vendor’s lien is retained in the purchase of property the homestead plea is inadmissible in the absence of pleadings under oath that the recitations in reference to said lien were induced through fraud or mistake.
“This rule has been recently reaffirmed by the Supreme Court in the case of Gregory v. Ward, 118 Tex. 526, 18 S.W.2d 1049, wherein it was held that evidence from the probate records showing that property was a homestead was not admissible in a suit to enforce a vendor’s lien.”

The testimony and the findings of fact refute any claims that the original vendor’s lien was ever waived. The rule with reference to such (under the record before us) is very well stated in 43 Tex. Jur. p. 449, § 257, as follows:

“But the lien is not waived when it is apparent that the parties intended it to continue, either as primary or collateral security for the debt; and it is competent to show such intention. It has been decided also that a lien is not waived by contracting for payment in goods instead of money, by failing to take a purchase money mortgage, by subsequently executing a new note with accrued interest in lieu of the original note, nor by substituting a third person for the vendor as payee in the note.
“Generally the burden rests upon the purchaser or one claiming under him to show a waiver by the vendor.”

In § 259, of the same text, it is said: “On. the other hand, a lien expressly reserved in the deed or purchase money note is not waived by taking a mortgage or trust deed, either upon the same or other property.”

It is also a rule of law (see § 260, of the same text) that “the vendor’s lien is not abandoned or waived by taking the promissory note of the purchaser for the debt.”

It is further reflected that the appellants in contemplation of the ultimate acquisition of the property made certain improvements for the convenience of the home, but claim for such improvements would not defeat the original purchase money obligation or the lien securing the same. By election of the appellee, the instant suit resolved itself into one for debt and the establishment and foreclosure of the original vendor’s lien. Young v. Harbin Citrus Groves, Tex.Civ.App., 130 S.W.2d 896; writ refused Branch v. Taylor, 40 Tex.Civ.App. 248, 89 S.W. 813, writ refused. In such cases, the applicable rule of law is as follows:

“Primarily, in the absence of any contractual provision on the subject, improvements made by a purchaser in possession under an executory contract become the property of the vendor, and remain so until payment of the purchase price and the passage to the purchaser of the vendor’s legal or superior title to the property as a whole. If the vendor neither defaults nor waives his legal rights, he is under no obligation to pay for the purchaser’s improvements as a condition to recovery of the property. * * ⅜
“Contrariwise, if the purchaser defaults in performance or refuses to perform, he may not ordinarily claim compensation.” 43 Tex.Jur. p. 265, § 160.

In Moore v. Giesecke, 76 Tex. 543, 13 S.W. 290, 293, the rule was stated in this language: “We repeat what has already been said when we say that, when the vendor’s suit is predicated upon the mere refusal of the vendee to pay the whole consideration contracted for, the facts that the vendee has paid part of the consideration, and made permanent and valuable improvements, coupled with possession of the property, unaided by some other sufficient equity, will not entitle him to recover for such purchase money or improvements. In such cases, when the vendor has neither waived his legal rights, nor committed any default, he cannot be involuntarily taxed with improvements made upon his property without his consent, or be made to pay a price for recovering it báck.”

The appellants’ claim based on improvements is unaided by any “sufficient equity”, as mentioned above. Neither the original vendor, nor his assignee, the appellee, has defaulted or waived the original vendor’s lien. In fact, there are no pleadings presenting cross-action or plea in re-convention against the appellee.

There are different reasons why in a suit of this character no allowances are made for improvements or for purchase money paid: (1) The debt has been or will be credited with any payments made thereon and to the extent of such payments the amount necessary to redeem is reduced. (2) At any time up to and including the sale of the property under foreclosure the vendee has the right to pay the debt and take the land, together with the improvements thereon. (3) When the land is sold under such foreclosure, presumptively it will bring what it is worth, including all improvements, and the defendant in judgment, the vendee, received the excess over and above the judgment and costs. (4) Since the vendee had the right to pay the debt or judgment and keep the property, and since it is his own default which provokes the litigation leading to the judgment,- sale, etc., there would seem to be no equity to adjust between the parties.

Further, and as elsewhere pointed out, the trial court has found that the appellee was a purchaser in good faith and for a valuable consideration. Neither was any tender made by the appellants in the trial court of any past-due and unpaid installment, nor of the total amount due and unpaid by virtue of appellee’s election so to declare.

An all-sufficient answer to appellants’ claim for improvements is also to be found in the trial court’s tenth finding of fact wherein he finds “ * * * that all of said improvements were made before the execution and delivery of the deed to said property from M. W. Laird and wife to defendants (appellants) and before the negotiations between the defendants and the plaintiff for a loan, and I further find that at the time of the execution and delivery of the deed from M. W. Laird and wife to the defendants (appellants) full credit and consideration was given to the defendants for the value of the improvements placed by them on said property.”

It is believed to be unnecessary to cite authorities that the person who pays for another a debt at his request which is secured by lien is subrogated to the lien which secures the debt, but see 22 Tex.Jur. 146, § 102, under the subject of Homesteads.

We have carefully considered the assignments presented by the appellants and their authorities in support of same, but we find the judgment to be the only one warranted by the record.

The assignments are overruled and the judgment of the,trial court is affirmed.


author: FOLLEY, Justice.

text:
    HALLMAN v. CITY OF PAMPA.
    No. 5246.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 13, 1941.
    Rehearing Denied Feb. 10, 1941.
    Willis & Via, of Pampa, for appellant
    Walter E. Rogers, Wm. Jarrell Smith, and R. F. Gordon, all of Pampa, for appel-lee.
   FOLLEY, Justice.

This suit was filed by the appellant, Roy Hallman, against the appellee, City of Pampa, a municipal corporation, to recover damages for injuries alleged to have been suffered by Hallman’s wife when she fell in a street in Pampa which the appellee was paving, the fall alleged to have been caused by her stumbling over debris which had accumulated in 'the street during the course of the construction work. The City of Pampa answered with numerous exceptions and demurrers to appellant’s petition, and the action of the court upon the same amounted to the sustaining of a general demurrer. The appellant declined to amend and the trial court dismissed the suit.

The City of- Pampa is a home-ruled city operated on the city manager plan under a special charter with its governing _body consisting of three commissioners, one of whom is the mayor. Section 8 of Article II of the charter of such city provides:

“Exemption from Liability for Damage's: Before the City of Pampa shall be liable for damages of any kind, the person injured or some one in his behalf, shall give the Mayor or City Commissioners notice in writing of such injury within thirty days after the same has been received, stating specifically in such notice when, where and how the injury occurred and the extent thereof. The City of Pampa shall never be liable on account of any damage or injury to person or property arising from or occasioned by any defect in any public street, highway, or grounds, or any public work of the city unless the specific defect causing the damage or injury shall have been actually known to the Mayor, or some other member of the Commission by personal inspection for a period of at least twenty-four hours prior to the occurence of the injury or damage, or unless the attention of the Mayor or a member of the Commission shall have been called thereto by notice thereof in writing at least twenty-four hours prior to the occurence of the injury or damage, nor further, unless in either case proper diligence has not been used to rectify the defect after it is actually known by, or called to the attention of the Mayor, or a member of the Commission as aforesaid.”

The chief controversy in this case concerns the first portion of the above-quoted provision from the charter. The exceptions and demurrers of the city were directed principally against the failure of the appellant’s pleadings to show a compliance with the notice provision of the exemption.

From the pleadings it is conceded that the appellant and his wife did not, nor did any one in their behalf, give the mayor or the city commissioners notice in writing of the injury within thirty days after the same was suffered. The injuries were alleged to have been received on December 6, 1938. It was not until April, 1939 that the claim was filed with the city commission. The appellant pleaded a waiver before and after the expiration of the thirty-day period and asserted an estoppel by reason thereof against the city’s claiming the exemption. We shall not go into detail as to the allegations of the appellant in this connection but shall merely recite the essential elements of the petition germane to the issue. After setting out in his pleadings the quoted provision from the charter the appellant alleged substantially as follows : that the city manager and the city attorney visited the scene of the injury before thirty days had expired after the accident; that the city manager in the presence of the city attorney thereupon told the appellant that it did not make any difference whether any claim was filed within thirty days but ■ that the appellant could make out the claim later and go before the city commission, which the appellant agreed to do; that the appellant relied upon such representations, otherwise he would not have failed to file the claim within the thirty-day period; that the claim was filed in April, 1939; that after such claim was filed the appellant received a letter from the city manager in which it was stated that the city commission had rejected the claim; that the only persons connected with the city who made any statements to the appellant within the thirty-day period were the city manager and the city attorney, each of whom by virtue of the duties imposed upon him by the city charter was authorized either expressly or impliedly to bind the city to allow the appellant to file the claim after the thirty-day period and thus waive the necessity of filing the written notice within such period; and that by reason of the above facts and circumstances the ap-pellee was estopped to claim the exemption from liability.

It will be noted that the latter portion of the above-quoted provision from the city charter was an attempt to relieve the ap-pellee from liability for injuries arising from defects in streets or public grounds unless the specific defect causing the damage should have been known to the mayor or some other member of the commission for twenty-four hours prior to the injury. In the case of Hanks et ux. v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278, the Supreme Court of this State held that a similar provision in the charter of the City of Port Arthur violated sections 13 and 17 of article 1 of the Constitution of Texas, and was therefore void. For this reason the latter portion of the quoted provision shall not be further noticed.

As far as personal injuries are concerned the remainder of the provision requiring notice of the claim for damages to be filed with the mayor or city commissioners within thirty days is apparently valid, the performance of which is a condition precedent to the accrual of liability against the city; and this is true even though the injury was the result of an act of the city itself. City of Dallas v. Shows, Tex.Com.App., 212 S.W. 633; City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692; Parsons v. City of Ft. Worth et al., 26 Tex.Civ.App. 273, 63 S.W. 889, writ of error refused; Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701; City of Waco v. Watkins et al., Tex. Civ.App., 292 S.W. 583; City of Beaumont v. Baker et ux., Tex.Civ.App., 95 S.W.2d 1365; City of Waco v. Thralls, Tex.Civ.App., 128 S.W.2d 462 ; 30 Tex.Jur. 555, para. 307; Cole v. City of St. Joseph, Mo. Sup., 50 S.W.2d 623, 82 A.L.R. 742.

In the Cawthorn case, supra, it was held that the requirement for filing notice of the claim might be waived by the duly authorized city officials provided the waiver occurred before the expiration of the period for the filing of the same. Although the precise question was not before the court in that case as to the power of the duly authorized city officials to waive the provision after the expiration of the time for filing the notice, the court indicated that it doubted such officials possessed such authority. By virtue of this indication from the Commission of Appeals, and for the further reason that the facts alleged, in appellant’s petition failed to show a waiver after the expiration of the thirty-day period, we shall confine our discussion to the alleged waiver by the city manager and city attorney prior to the expiration of the time for the written notice. 43 C.J. 1211, para. 1981. The issue is thus reduced to the single question as to whether or not these named officials were authorized to make the waiver and bind the city.

We think a fair analysis of the pleadings of the appellant will exclude the conduct of the city attorney from consideration on this question. He was apparently included in the allegations because of his presence during the conversation between the appellant and the city manager. It is not alleged that he made any representations or statements to the appellant. The burden of appellant’s allegations on the question of waiver is based solely upon the asserted representations of the city manager. Therefore, our disposal of the question relative to the authority of the city manager will dispose of the whole issue.

The charter of the City of Pampa provides that the municipal government of the city shall consist of the city commission which shall be composed of three commissioners, one of whom shall be the mayor. Such commission only is empowered to enact all ordinances and resolutions and adopt all regulations. It alone constitutes the legislative and governing body of the city, possessed of all the powers granted by the charter. The city manager is appointed by the commission and holds his office only at its will. Such city manager is designated as the administrative head of the municipal government and is responsible for the efficient administration of all departments- of the city. It is his duty to see that all the laws and ordinances of the city are enforced. He may, with the advice and consent of the commission, appoint all appointive officers or employees of the city. He shall exercise control and supervision over all departments and offices that may be created by the comrfiission and all officers and employees appointed by him. He is authorized to attend all meetings of the commission with the right to take part in the discussion, but having no vote. He shall recommend in writing to the commission such measures as he may deem necessary or expedient. He shall keep the commission fully advised as to the financial condition and needs of the city and perform such other duties as he may be required by the charter or which may be required of him by ordinance or resolution of the commission. Such is the official capacity of the city manager of the appellee city.

The exact question as to the authority of a city manager to bind the city upon such a waiver as is herein involved seems never to have been directly passed upon in this jurisdiction and only inferentially in other jurisdictions. Several cases in this and other states, however, may by analogy shed some light upon the question.

In the early case of City of Ft. Worth v. Shero 16 Tex.Civ.App. 487, 41 S.W. 704, 705, 706; writ of error denied, notice of an injury was required to be given the city council within thirty days after the same occurred. The notice was given the city secretary of the City of Fort Worth within the time limit but was not given to the city council. In that case the Court -of Civil Appeals held, with the approval of the Supreme Court, that notice- to the city secretary was insufficient. In such case it is said: “The question in this case is whether the city of Ft. Worth is liable for the damages appellee has sustained by reason of the injuries he received on the night of the 11th of May, 1895, he having failed to deliver this notice to the city council within the 30 days prescribed by the section of the charter above quoted. The legislature has prescribed that the city shall not be liable unless the notice is given in writing within 30 days after the injury shall have been received. The injury was received at the time he stumbled and fell, although the doctor, as is usual in such cases, was then and for some time afterwards unable to state the extent and permanency thereof. The statute makes no allowance for this. The notice must be given to the city. council. The section under consideration does not provide that notice shall be given to the city. If it did, we might reasonably conclude that service on the city secretary, or mayor, or other officer of the city upon whom citations may be served in case of suits against the city, would be sufficient.”

In the case of Puckett & Wear v. City of Ft. Worth, Tex.Civ.App., 180 S.W. 1115, it was held that in order to charge the City of Fort Worth with the negligence of its engineer in giving incorrect grades for laying of cement walks it was necessary to give notice to the board of commissioners as required by the charter even though the city engineer knew of his own negligence.

The case of City of Beaumont v. Baker et ux., Tex.Civ.App., 95 S.W.2d 1365, holds that notice of the injury which was sent to the city clerk was an insufficient compliance with a charter provision that notice of the injury be filed with the city commission.

In the more recent case of the City of Waco v. Thralls, Tex.Civ.App., 128 S.W.2d 462, it was held that the city physician had no authority to waive the filing of such a claim and thereby bind the city where the charter required the claim to be filed with the city secretary.

In Jones v. City of Fort Worth, Tex.Com.App., 267 S.W. 681, the Commission of Appeals held that under a charter requiring notice to be served upon the board of commissioners, written notice served upon one of the commissioners, who was commissioner of streets and a member of the board, was a sufficient compliance with the requirement.

In Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701, in an action against the City of Houston for personal injuries, it was held that where a city commissioner was authorized by the mayor and commissioners to approach the claimant and offer him a compromise and invite him to their office to discuss the matter, such conduct presented a fact issue as to whether or not there was a waiver of a strict compliance with the charter requirement as to this notice. It was further held in such case that the mayor and other commissioners could authorize the one commissioner to act for them and that if he was their agent they were all bound by his act.

In Nicholaus v. City of Bridgeport, 117 Conn. 398, 167 A. 826, the Supreme Court of Errors of Connecticut held that an assistant city clerk of the City of Bridgeport could not waive the compliance with the statute requiring notice of injuries or by accepting defective notice estop the city from taking advantage of the failure to comply with the statute.

In Welu v. City of Dubuque, 202 Iowa 201, 209 N.W. 439, the Supreme Court of Iowa held that the city solicitor’s waiver of the statute of limitations, being unauthorized, did not estop the City of Dubuque from relying upon limitations where notice of the injury was not served as required.

In Fellmeth v. City of Yonkers, 222 App.Div. 815, 226 N.Y.S. 158, it was held that the statutory requirement for notice and written claim for injuries from a defective street could not be waived by corporation counsel.

To the same effect are the following cases: Merwin v. City of Utica, 172 App.Div. 51, 158 N.Y.S. 257; Rogers v. City and County of Honolulu, 32 Haw. 722.

In the light of the above authorities, and others upon the subject, we are of the opinion that the city manager of the City of Pampa, under the allegations of the appellant and under the provisions of the city charter of which we must take judicial knowledge, art. 1174, Vernon’s Ann.Civ. Statutes, was without authority to bind the city on the issue of waiver and estoppel. No such authority was conferred upon him by the city charter. Under such charter the notice was not required to be filed with him but with the city commission, which body was the only authority which could take cognizance of such claims and act thereon. The city manager possessed only such authority as might be given him by the charter or by the governing body of the city. It was not alleged that at the particular time the representations were made he was acting under the express orders of the commission, if such fact would have authorized him to make the waiver, which we are not required to pass upon. We think it would be a hazardous doctrine of far-reaching effects to announce the rule that any officer or employee of a city, not expressly so authorized, could bind or estop the city in matters of this kind which are placed exclusively within the authority of the city commission. Such a situation could certainly not arise, if at all, until it was clearly shown that the conduct of the subordinate officer was so closely related to the expressed will of the governing body as to constitute his act that of the commission itself. No such circumstances are shown to exist in this case.

We therefore hold that the appellant failed to allege a cause of action and there was no error in the action of the trial court in sustaining the general demurrer. Starling v. Incorporated Town of Bedford, 94 Iowa 194, 62 N.W. 674; Dalton v. City of Salem, 139 Mass. 91, 28 N.E. 576; Kennedy v. Mayor, etc. of City of New York, 18 Misc. 303, 41 N.Y.S. 1077; Shea v. Lowell, 132 Mass. 187; Veazie v. Rockland, 68 Me. 511; Cole v. City of Seattle, 64 Wash. 1, 116 P. 257, 34 L.R.A.,N.S. 1166, Ann.Cas. 1913A, 344.

The judgment is affirmed.