author: PRICE, Chief Justice.

text:
    ARMSTRONG et al. v. HUMBLE OIL & REFINING CO. et al.
    No. 3992.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1940.
    Rehearing Denied Dec. 5, 1940.

      Armstrong & Jaffe, of El Paso (W. C. Wofford, of Taylor, of counsel), for appellants.
    ' Dodson, Ezell & Duke and Goeth,- Webb & Goeth, all of San Antonio, and Felix Raymer, of Houston, for appellees.
   PRICE, Chief Justice.

The nature and result of this suit is admirably stated by appellants. Same seems to be acquiesced in by appellees, and we shall substantially adopt same.

This is an action in trespass to try title involving a one-third mineral interest in some 12,000 acres situate in La Salle County.

The suit was brought in the District Court of La Salle County, sitting at Cotul-la, by Mrs. A. Y. Armstrong, as plaintiff, against Humble Oil & Refining Company, -Mrs. Ada Pumphrey, a feme sole, Grace Armstrong, a feme sole, Mrs. Daisy Armstrong, a feme sole, O. R. Armstrong, Vivian Armstrong Nichols, Ralph Nichols, Inez Ada Kercheville and J. A. Kerche-ville, as defendants.

Between plaintiff and defendants, exclusive of Humble Oil & Refining Company, the controversy was over the respective interests of the parties in the one-third mineral interest in issue. Plaintiff claims as surviving widow of Armstrong, Sr., deceased. Defendants claim as children and grandchildren of Armstrong, Sr., deceased.

The controversy between plaintiff and the heirs of Armstrong, Sr., was compromised before trial.

Between plaintiff and the Armstrong heirs on the one side, and Humble Oil & Refining Company on the other, the controversy was as to the ownership of the one-third mineral interest described in plaintiff’s petition. Humble claimed it as lessee under mineral leases emanating from other parties. Before the trial Humble purchased a mineral lease from plaintiff and the Armstrong heirs. C. A., R. A., Fred C., and Arthur C. Goeth filed a petition of intervention setting up the ownership of C. A. Goeth in all the minerals in 700 of the 12,000 acres described in plaintiff’s petition, and all of the Goeths jointly asserted ownership of all the minerals in another 345 acres, also part of the said 12,000 acres. The claims of the Goeths expressly recognized the rights conveyed by them by mineral lease given to one Carter, who assigned to Humble. Interveners’ pleading presented an action in trespass to try title. Plaintiff and the Armstrong heirs answered jointly by general demurrer, general denial, a plea of not guilty, and filed a cross action in the form of trespass to try title, asserting their ownership of one-third of the minerals in the land claimed by interveners. The interveners and Mrs. Armstrong and the heirs of Armstrong, Sr., recognized the validity of their lease to the Humble, and interveners recognized the validity of the lease given by them to Carter, which was assigned to Humble.

Humble filed answer setting up that it held mineral leases under both sets of competing claimants, and praying that the court adjudicate the extent to which it held under each set.

The case was tried to the court without a jury. Judgment was that plaintiff take nothing against defendants and' inter-veners; that interveners recover in their suit against plaintiff and the Armstrong heirs; that the leases from interveners held by Humble be confirmed and ratified.

Plaintiff and the Armstrong heirs have perfected this appeal.

The trial court, on request of appellants, filed findings of fact and conclusions of law.

It is agreed between the parties that Andrew Armstrong, Sr., is the common source of title. The question then presented is as to who holds the superior title emanating from the common source. Appellants claim that Andrew Armstrong never conveyed away the one-third mineral interest involved herein. If this position is sustained, the judgment of the trial court should be reversed and rendered in appellants’ favor. On the other hand, if it appear that Andrew Armstrong did convey the one-third mineral interest away before- his death, the judgment should- be affirmed, because, if conveyed, it was conveyed to interveners or their predecessors in title.

The facts are undisputed and, it may be said, of no great complication. Correct disposition of the case depends on the proper construction of written instruments.

•On April 17, 1901, Andrew Y. Armstrong, owner of 18,060.5 acres of land in La Salle County, mortgaged 9,081 acres thereof to M. J. Barlow & Company to secure the payment of his note in the sum of $10,800. On the same day he conveyed to Caley and Uhl, Jr., all of the said 18,060.5 acres, less 40½ acres reserved for road purposes, and likewise he reserved from the conveyance one-third of the mineral estate in the land. Consideration of this conveyance was recited as $5,000 cash, assumption by the grantees of the said $10,800 note payable to Barlow & Company, and the execution and delivery of six .promissory notes, each in the sum of $4,124.50, payable to grantor. A vendor’s, lien was retained to secure the payment of the assumed note and the said six purchase money notes.

On July 1, 1901, Armstrong borrowed $10,000 from H. P. Drought & Company, and to secure his note in that amount pledged the six promissory notes executed and delivered to him by Caley and Uhl, Jr., same being secured by vendor’s lien on the property conveyed to them on April 17, 1901.

On April 18, 1903, Uhl, Jr., and the successors in title of Caley, C. A. Goeth and Chas. Deussen, paid Armstrong’s note of $10,800 in fa-vor of Barlow & Company. It being the same note assumed by the grantees in the conveyance of April 17, 1901. Lockwood National Bank, at the time of the payment, was the owner of the note. In a single instrument Lockwood National Bank released- to Armstrong, Sr., the mortgage given by him on the 9,081 acres securing the payment of this note, and Armstrong released to Caley and Uhl, Jr., C. A. Goeth and Chas. Deussen, assignees of Caley, the vendor’s lien securing the Caley and Uhl, Jr.’s assumption of Armstrong, Sr.’s note; This release will hereinafter be particularly discussed.

On April 28; 1903, Armstrong, Sr., for the total consideration of $20,409.90, sold and assigned to Drought & Company the six Caley and Uhl, Jr., notes totaling $24,744.90, together with the vendor’s lien and superior title securing their payment.

On November 28, 1905, H. P. Drought & Company released and quitclaimed to Caley and Uhl, Jr., and C. A. Goeth and Chas. Deussen, as assignees of Caley, the vendor’s lien and superior title securing the payment of the six notes. The consideration of this release and quitclaim was the payment of these notes by: Uhl, Jr., and C. A. Goeth and Chas. Deussen.

Now the instruments alleged, which are claimed to have divested the title out of Armstrong, Sr., to the reserved one-third mineral interest, are, first, the instrument dated April 18, 1903, in the execution of which Armstrong; Sr., joined with the Lockwood National Bank; second, the instrument of April 28, 1903, wherein Armstrong, Sr., sold and assigned, for a consideration of $20,000, the six Caley and Uhl notes aggregating $24,744.90, together with the vendor’s lien and superior title securing their payment.

The determination of whether these instruments conveyed Armstrong’s • reserved oneTthird mineral interest is determinative of the case.

Although these instruments are somewhat lengthy, it is deemed nécessary to set same forth in full.

The instrument of April 18, 1903, is as follows:

"The State of Texas,
“County of La Salle.
“Whereas, Andrew Armstrong, Sr., of La Salle County, Texas, did on the 17th day of April, 1901, execute and deliver to R. A. Gilmer, Trustee, of La Salle County, Texas, a certain deed of trust on the following described property situated in La Salle County, Texas, to-wit: Being all of Surveys Nos. 1, '2, 3, 10, 11, 12, 13, 20, 21, 22, 23, 34 and 35, each containing 640 acres of land, also the East half of Survey No. 36, containing 320 acres, all of said 14 surveys being made for and patented to the I. & G. N. R. R. Co.; also Survey No. 8, Cert. 340 in the name of and patented to W. P. Kerr, containing 441 acres of land, making the aggregate of 9081 acres, which said deed of trust is recorded in La Salle County, Texas, in Vol. 3, pages 403 to 405, which said deed of trust record is hereby referred to, said deed of trust being given to secure the payment of one promissory note for the sum of $10,800.00 dated April 17, 1901, due two years after date, payable to M. J. Barlow & Co., at Cotulla, Texas, with interest at 8 per cent per annum from date until paid, interest payable annually in advance; and,
“Whereas, said note with all interest thereon has been fully paid and at the time of said payment said note was the property of the Lockwood National Bank of San Antonio, Texas.
“Now, Therefore, Know All Men By These Presents, that the said Lockwood National Bank, acting herein by and through J. S. Lockwood, its President, joined by R. A. Gilmer, Trustee, acting at the request of the owner and holder of said note, in consideration of the premises and of the full and final payment of said note, receipt of' which is hereby acknowledged, have this day and by these presents do remise, release- and quitclaim unto the said Andrew Armstrong, Sr., his heirs and assigns, the lien heretofore existing upon said premises by virtue of said deed of trust and do hereby declare the same fully released and satisfied.
“And, whereas, I, Andrew Armstrong, Sr., did on the 17th day of April, 1901, by deed duly recorded in La Salle County, Texas, in Vol. L, pages 520-525, grant, sell and convey to Henry Caley and Alexander J. Uhl, Jr., all of the land hereinbefore described as well as certain other lands fully described in said deed, which is hereby referred to, and whereas, in ’and by said deed said Henry Caley and Alexander J. Uhl, Jr., assumed the payment of the said note for $10,800.00 hereinbefore described and secured by deed of trust recorded in Vol. 3, pages 403-405, of Trust Deed and Mortgage Record of La Salle County, Texas, and, whereas, said note for $10,800.-00 hereinbefore referred to, has this day been paid by Alexander J. Uhl, Jr., and C. A. Goeth and Chas. Deussen who became the owners and purchasers of the interest of said Henry Caley in said land conveyed to him by said deed of April 17th, 1901, and, whereas, a vendor’s' lien is retained in said deed to Henry Caley and Alexander J. Uhl, Jr., to secure the payment of said note to M. J. Barlow & Co., for $10,800.00, and, whereas, said note has been paid and discharged to my satisfaction.
“Now, Therefore, Know .All Men By These Presents, that I, Andrew Armstrong, Sr., of the County of La Salle and State of Texas, for and in consideration of the premises and the full and final payment of said note for $10,800.00 and interest due thereon and for value received, have remised, released, quitclaimed, discharged and acquitted unto the said Henry Caley and Alexander J. Uhl, Jr., and to the said Goeth and Deussen, assigns of said Caley and their heirs and assigns, the vendor’s lien heretofore existing upon said land by reason of said note for $10,800 and.' I hereby quitclaim unto them all the right, title and interest I have in said premises described i.n said deed to Henry Caley and Alexander J. Uhl, Jr., recorded in La Salle County records, Vol. L, pages 520-25, retaining only a vendor’s lien against said land to secure the payment of the remaining six notes for $4124.15 each, described in said deed to Henry Caley and Alexander J. Uhl, Jr., so far as the same remain unpaid.
“Witness our hands this 18th day of April, 1903.
“Lockwood National Bank
“By J. S. Lockwood, President
“Andrew Armstrong, Sr.
“R. A. Gilmer, Trustee.”

The instrument of April 28, 1903, is as follows :

“The State of Texas,
“County of La Salle.
“Whereas, ' I, Andrew Armstrong, Sr., of the County of La Salle and State of Texas, did, by deed dated April 17th, 1901, and recorded in Book L, page 520 of the Records of La Salle County, State of Texas, convey to Henry Caley and Alexander J. Uhl, Jr., of the County of Bexar, State of Texas, for and in consideration of Five Thousand ($5000) Dollars to me in hand paid, and of six (6) promissory notes, in amounts and maturities as follows:
(Description of six promissory notes as to amounts and dates of maturity) “to me then and there delivered, bearing interest at the rate of seven (7%) per cent from date, which interest is due and payable annually, the following described tract or parcel of land, situated in the County of La Salle, State of Texas, to-wit:
(Description of property)
“Aggregating Eighteen Thousand and Sixty and ½ acres, less 15¾ acres sold to La Salle County, and is included in and covered by what is known as the Carrizo Springs Road, less also 25½ acres, included in and is covered by a certain road in direction of Batesville and entirely on the west side of said lands of the width of 30 feet; the title of which is reserved by A. Armstrong, Sr., which said two roads run on, over and across the lands herein conveyed or part thereof; said two roads aggregating 40½ acres, leaving Eighteen Thousand and Twenty (18,020) acres conveyed hereby.
“And for additional description of the above lands reference is hereby given to the deed from Andrew Armstrong, Sr. to Henry Caley and Alexander J. Uhl, Jr., dated April 17, 1901, and recorded in Book L, page 520 et seq., of the Deed Records of La Salle County, Texas. Upon which was reserved a vendor’s lien for the surer payment of said notes;
“And, whereas, said described notes so given for the balance of the purchase money due on said property are unpaid, and I, the said Andrew Armstrong, Sr., having sold, endorsed and delivered the aforesaid purchase notes to H. P. Drought and Company,
“Now, Be It Known, That I, the said Andrew Armstrong, Sr., in consideration of Twenty Thousand Four Hundred and Nine and 90/100 ($20,409.90) Dollars, to me in hand paid by the said H. P. Drought and Company, the receipt whereof is hereby acknowledged, does guarantee the payment of said vendor’s lien notes and has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey unto the said H. P. Drought and Company my right, title and interest in the above described land, including my superior title thereto; and assign to said H. P. Drought and Company my right of sale, and also my right to recover the said land in case the said purchase notes shall remain unpaid after maturity, and all rights that I have as vendor with unpaid consideration, the same as though the said H. P. Drought and Company were the original owners and vendors of said land.
“And I Hereby Covenant, That all said purchase notes assigned as aforesaid are unpaid; that the said vendor’s lien is unsatisfied, in whole or in part, and that the said paramount title, which is hereby conveyed to the said H. P. Drought and Company, is in full force and virtue.
“I having sold the vendor’s lien notes hereinabove described to H. P. Drought and Company, this assignment is given to convey any interest either in the above described vendor’s lien notes or the land de-scjribed and conveyed in the deed from me to Henry Caley and Alexander J. Uhl, Jr,, hereinbefore referred to, which may not have been conveyed by me to said H. P. Drought and Company by assignment dated July 1st, 1901, recorded in Book L, page 573 to 577 of the Deed Records of La Salle County, Texas.
“Witness my hand, this 28th day of April, A. D. 1903.
“Andrew Armstrong, Sr.”

In the construction of any written instrument the purpose is to arrive at the intent of the parties thereto as expressed therein. The language used is to be interpreted in the light of the situation of the parties and the subject matter dealt with by the writing.

Let us first deal with the release by the Lockwood National Bank and Armstrong, Sr., to Uhl, Jr., and Goeth and Deussen, assignees of Caley. Payment of the note for $10,800 had been secured by Armstrong by his deed of trust dated April 17, 1901, to Gilmer, Trustee, wherein some 9081 acres of the approximate 18,000 acres owned by Armstrong were pledged for its payment. This deed of trust was a lien on all the interest held by Armstrong in the 9081 acres of land. On the same day Armstrong sold to Uhl and Caley this 9081 acres, together with the balance of the approximate 18,000 acres, reserving to himself in the conveyance one-third mineral interest in and to the lands conveyed. Among other consideration for this latter conveyance was the assumption by Uhl, Jr., and Caley of the $10,800 note aforesaid. To secure the deferred payments and the assumption of this note an express vendor’s lien was retained in favor of Armstrong. After this assumption Armstrong, as to Uhl and Caley, was a surety for the $10,800 note. His one-third mineral interest in the 9,081 acres was likewise a security therefor.

Uhl, Jr., and the assignees of Caley paid the $10,800 note. This payment had the effect of freeing the mineral estate of Armstrong, Sr., in the 9,081 acres of land, of freeing the land of the lien created by the deed of trust, of freeing the 18,000 acres of the vendor’s lien held by Armstrong, Sr., to secure the assumption of the $10,800 note. The assigns of Caley had not assumed the $10,800 note, but acquired their interest subject to same.

It is very clear that the release in question, insofar as the Lockwood National Bank is concerned, conveyed nothing to interveners’ predecessors in title. The discharge of the lien it previously held was evidenced thereby. Clearly it evidenced the extinguishment of the vendor’s lien of Armstrong securing the assumption of the note in question. Further, by its terms, it was only a partial release of the rights of Armstrong, Sr.

The consequences of the construction contended for by appellees would be that Armstrong, Sr., conveyed, free from all incumbrances, his mineral estate of one-third in the entire approximate 18,000 acres. There is no evidence of any contract or obligation on the part of Armstrong so to do. Wanting, likewise, is any reasonable consideration for him so to do. This last statement should possibly be coupled with the recognition that the assigns of Caley had not assumed the $10,800 note. In any event, their payment thereof was in protection of their own rights in and to the property.

It must likewise be borne in mind that the one-third mineral interest had been, by reservation in the deed from Armstrong, Sr., to Uhl, Jr., and Caley, severed from the estate in the surface. Same was as foreign and distinct from the estate in the surface as though each were a separate and distinct tract of land. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296.

To our minds it clearly appears from the instrument that Armstrong only quitclaimed the interest he held in the land conveyed to Uhl and Caley. This was the entire surface estate in the 18,000 acres, and two-thirds of the mineral estate; one-third remained vested in him so far as the release in question is concerned.

We come now to the consideration of the conveyance by Armstrong, Sr., to H. P. Drought & Company dated April 28, 1903. This instrument we have hereinbe-fore set forth in full. If this conveyed anything other than the six notes involved and the lien securing same, interveners (defendants) have title to such additional estate or rights.

Much that has been said in relation to the release applies to this instrument. The vendor’s lien retained in the conveyance by Armstrong, Sr., to Uhl and Caley never attached to the one-third mineral interest here involved. That interest, as has been stated, was not included in the conveyance, but reserved therefrom.

Now a careful consideration of this entire instrument discloses that all that was sought to be thereby consummated was the vesting of the title to the notes in H. P. Drought & Company, together with all security held by Armstrong therefor. In relation to the notes the aim was to endow Drought & Company with all the rights held by Armstrong with relation thereto. This, the instrument - consummated. Its only legal effect was this: the land referred to was the land conveyed by Armstrong, Sr., to Uhl and Caley. This, to our mind, clearly and indisputably appears from the entire instrument, read as a whole.

Our construction of the legal effect of the instrument in question finds support in the following cases: Sanborn v. Crowdus Bros. & Co., 100 Tex. 605, 102 S.W. 719; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296; Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381; Carter & Bro. v. Davis, Tex.Civ.App., 88 S.W.2d 596; Owen v. Associated Oil Co., Tex.Civ.App., 281 S.W. 607.

The title to the one-third mineral interest reserved by Armstrong was not divested during hi's life. It is now vested in his surviving wife and legal heirs, subject, however, to an oil and gas lease in favor of the Humble Oil & Refining Company.

From the record it appears that Mrs. A. Y. Armstrong owns one-half of such one-third interest; Mrs. Ada Pumphrey one-fourth ; Mrs. Inez Ada Armstrong Kerche-ville, Vivian Armstrong Nichols, and Grace Armstrong, each, respectively, one-twelfth thereof.

It is, therefore, ordered that the judgment of the trial court is hereby reversed, and that judgment is rendered that Mrs. A. Y. Armstrong, Mrs. Ada Pumphrey, Mrs. Inez Ada Armstrong Kercheville, joined by her husband, J. A. Kercheville, Vivian Armstrong Nichols, joined by her husband, Ralph Nichols, and Grace Armstrong, do have and recover of and from C. A. Goeth, R. A. Goeth, Fred C. Goeth and Arthur C. Goeth, and against Mrs. Daisy Armstrong, on her disclaimer, the title and possession of the one-third undivided mineral interest in and to the lands involved, subject, however, to said mineral lease held by the Humble Oil & Refining Company from appellants. The recovery of said appellants as to the one-third interest to be in the respective proportions here-inbefore set forth; and that as to said one-third interest aforesaid the interveners take nothing.

Reversed and rendered.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    SWIFT & CO. EMPLOYES BENEFIT ASS’N v. LEMIRE.
    No. 14138.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 22, 1940.
    Rehearing Denied Dec. 20, 1940.

      J. Kirby Smith, Thompson & Barwise, and Seth Barwise, all of Fort Worth, for appellant.
    A. J. Baskin and C. A. Wright, both of Fort Worth, for appellee.
   SPEER, Justice.

Irma Lemire instituted this suit against Swift & Company Employes Benefit Association for weekly compensation benefit, under a contract in the form of a policy of .insurance alleged to cover the facts plead. Parties will be designated as they were in the trial court. In the testimony and occasionally in the briefs, defendant is referred to as “E. B. A.”

Defendant is an independent corporation, carrying what may be termed week-to-week insurance against sick and accident disabilities in favor of employes of 'Swift & Company; it did not issue contracts to any person other than the employes of Swift & Company.

Plaintiff 'made application for and procured the issuance of a policy in her favor. She claims to have received an accidental injury on or about September 18th, 1938, while in the employ of Swift & Company, while' the contract was in effect; she alleged notice to her employer and all other requirements sufficient to entitle her to recover under the terms of the policy.

Defendant answered by general denial and special defenses. The only phase of the answer necessary to mention being one in which it was denied that the contract was in effect at the date mentioned, because the policy had lapsed for failure to pay the premium for the week the injury is alleged to have .been sustained.

The case was tried to a jury on special issues. The issues submitted and their answers were to the effect that: (1) the plaintiff sustained an injury to her person on about September 15th, 1938, while working in the plant of Swift & Company; (2) plaintiff has been totally disabled continuously since the date of her injury up to the present time; (Date of trial was September 13th, 1939); and (3) the premium on the accident and health policy sued on would have been deducted from her last pay check if she had not received an injury.

Upon the verdict, judgment was entered in plaintiff’s favor for $6 per week for 52 weeks intervening between the date of the injury and date of trial, the aggregate amount being $312, with interest at 6 per cent, since September 15th, 1938. New trial was denied and this appeal was perfected by defendant, admittedly upon the sole ground that the uncontroverted evidence disclosed that the premium had not been paid and the court erred in not directing a verdict for defendant upon its motion to that effect.

Plaintiff had worked for Swift & Company at intervals of from two days to several weeks at various times over a period of several years. On March 29th, 1937, plaintiff signed an application to defendant for the issuance of its health and accident policy to her as an employe of Swift & Company. In so far as is necessary to here state, the application contained representations that she was an employe of the fourth class (fixed by a wage rate) and agreed to be bound by the rules of the defendant association. The following stipulation is in the application: “I also agree, request and direct, that Swift & Company, or my employer, by its proper agents, and in the manner provided for in such Rules, shall apply as a voluntary contribution from any wages earned by me under said employment the sum of 30 cents per week for the purpose of securing the benefits provided in the Rules for a member of the Benefit Association of the 4th class * * .”

The policy contract was issued by defendant on April 22nd, 1937, based upon the application and recites that membership commenced on March 29th, 1937. The application and policy must be considered as embracing the contract between the parties.

It was shown by the uncontradicted testimony that plaintiff slipped and fell on the floor while working for Swift & Company on about September 15th, 1938, and sustained serious injuries, and had been unable to perform any labor since that time; she testified about falling and that she immediately notified her foreman, Jimmie Schick, that she had fallen and hurt herself, but that she did not think it serious; that the accident happened at night and that the company doctor was not in his office at that time; she testified at length as to the nature of her injuries and the effect which rendered her incapable of doing any further, work up to the time of the trial. She was corroborated by her mother and a physician regarding the nature and extent of her injuries. Defendant offered no testimony to refute either. The mother further testified that she took the telephone number from the directory and called Swift & Company’s office and some one there answered; she did not know to whom she talked in the office; she told them that her daughter (the plaintiff) would not be back to work that day because she was injured while at work the night before. She said she told the person to whom she talked, she wanted to find out about her daughter’s E.B.A. insurance, and he said, “they would look into it.” There was no denial by any employe from the office that such a conversation took place. The fact that the witness could not tell the name of the person to whom she talked on the telephone did not render her testimony inadmissible, so as to eliminate the corroboration of plaintiff’s testimony that notice was given. The admissibility of the testimony and its probative effect is analogous to the rule in admitting in evidence letters written by one in response to a properly addressed letter written by another. In such circumstances it is well settled that such a response is admissible upon the theory that the writer is presumed to have authority from his principal to write it. General Missionary Society, etc., v. Real Estate Land Title & Trust Co., 134 Tex. 564, 136 S.W.2d 599, opinion adopted by Supreme Court.

Subsequent to the issuance of the policy contract sued on, and prior to the events involved here, plaintiff had been called back to work for Swift & Company, and worked as long each time as her employer had a place for her; when no longer needed, she was so advised and laid off until called back. On September 13th, 1938, the agent of Swift & Company who hires and discharges employes for the department in which plaintiff worked, called and asked if she could work the next day; she reported for work next day, procured a card from her foreman, took it to the company doctor, got a medical certificate, returned to the office and was given the customary metal tag bearing her employment number, and was then put to work; she worked the nights of September 14th and 15th, and was injured during the last evening. She said that she had always been paid by checks, and that the one received for August time did not have on it a notation that premium for E.B.A. had been deducted and she asked Bobby Capps, an employe in the time office, whether or not she had the insurance, and he advised her that she did have and that she would be advised when she did not have the insurance. She said that no one ever advised her that she did not have the E.B.A. insurance. Plaintiff was earning 40½ cents per hour and worked 12½ hours on the 14th and 15th of September, 1938, amounting to $5.06; there was an additional earning of 29 cents, aggregating $5.35; a 5 cents Social Security tax was deducted, leaving her net earnings for the two days $5.30. Plaintiff did not call for her check until the following March, when she wrote a note and sent it by her mother to Swift & Company, asking for payment of her wages. The mother was paid the amount in cash. Plaintiff said she did not know whether premium was deducted for E.B. A.; she did not know just how much time she had made; in fact, thought she had worked three days.

Defendant offered as a witness, Mr. Cars-well, the assistant time keeper for Swift & Company. By him it was shown that plaintiff had been employed, laid off and “rehired” a number of times; in some instances deductions of premium were made from plaintiff’s' pay check and from others no deductions were made. He said the rules of defendant were such that unless an employe worked a week or nearly so, no E.B.A. insurance was allowed and no premiums were. deducted from wages by Swift & Company. He said his records showed that on one occasion when plaintiff had worked 13#hours in a week, deductions were made for the insurance. That these matters are controlled by the employe of defendant who inspected time sheets of employes and when he considered an employe permanent and not transient or temporary, the insurance was allowed and collected for, but where an -employe was shown by his time to be temporary, no insurance was carried and no premiums collected. He said that when an employe worked only a short time and was laid off they were usually paid for the time and since there would be no wages left in the hands of Swift & Company from which premiums could be deducted, they are not given E.B.A. insurance; they are classed as temporary employes; the witness said C. W. Welborn, an employe of Swift & Company, was the one who determined whether or not an employe was entitled to E.B.A. insurance. Mr. Welborn did not testify. Mr. Carswell also testified that one like plaintiff who had been employed and laid off and had E.B.A. insurance while at work, and returned upon request of Swift & Company and worked two or three days and was not laid off, would receive insurance. That plaintiff was laid off on September 15th because he saw that order on her time sheet. He said plaintiff was cut off from insurance when her premium was exhausted; that defendant did not cut an employe off from insurance if they quit work for sickness or injury; that no insurance was allowed only when they had been laid off by Swift & Company within less than approximately a week from the time they began work.

As stated above, defendant’s sole contention here is that the court should have directed a verdict for it; counsel admit in their brief that if no directed verdict should have been given, 'the judgment of the trial court should be affirmed by ús, and that if it should have been given,- the judgment should be reversed and rendered for defendant.

As we view the record, a directed verdict for defendant would not have been proper. The undisputed evidence discloses that plaintiff had worked many times for Swift & Company, during the time since the policy was issued; it is equally certain that defendant did not consider that she was a temporary employe, such as it would not extend the benefits of insurance to, for it had often collected premiums through Swift & Company from her wages, the means agreed upon in the application. When she was called back to the plant on September 14th, there was nothing to indicate whether the employment was for a short or long time; the presumption is that it would last until she was laid off by the employer. There is no testimony whatever that she was laid off after she had worked two days, but the uncontradicted evidence is that she did not return on account of the injuries sustained. Moreover, it appears from the testimony of defendant’s only witness, Mr. Carswell, that if plaintiff worked less than a week and was not laid off by the company but failed to work longer because of an injury, she would not be denied, under the rules of defendant, the protection given in the contract. As we understand the evidence, this is precisely what happened; the insurance could not be denied plaintiff because she had worked so short a time as to have no wages due from which a premium could be deducted, falling within one of the rules of defendant testified about; she had ample wages due her from Swift & Company, from which the premium could have been deducted, had defendant desired to have it done.

It is the well-settled rule in this State that when a jury trial is demanded and the evidence is such as reasonable minds could differ and a jury question is raised, the court should not direct a verdict. Put another way, if there was evidence of a substantial nature from which a jury could resolve the facts in favor of plaintiff, then the trial court should not direct a verdict. In determining whether or not there is sufficient evidence to support a verdict when rendered, the test is said to be: If discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict.” 17 Tex.Jur., § 410, pp. 910-911, and the authorities there cited.

This is not a case where an insured sues for benefits under a policy of insurance when she had obligated to pay premiums in advance for the period covered, such as was discussed in the cases cited by defendant. In those cases liability was denied because the contract had not been performed by paying premiums necessary to keep the policy effective. The present case is quite the contrary. Here premiums were to be paid after the expiration of the time covered by the policy, and then to be paid by a deduction by Swift & Company from the wages earned by the insured. Swift & Company became defendant’s collecting agent. That company had sufficient funds in its hands for six months, belonging to plaintiff, with which to pay the premium. With respect to payment of the premium, Swift & Company stood in the shoes of defendant, so long as it had plaintiff’s funds in its hands. Plaintiff should not be penalized because Swift & Company did not appropriate enough of her money then in its hands to the payment of the premium. She had a right to rely upon the provisions of the contract which provided for payment in this way.

It could hot be successfully contended that if defendant had had in its hands funds belonging to plaintiff, and refused to apply them to the payment of a premium for insurance when due, that it could thus decline and forfeit a policy of insurance for nonpayment of premium. 24 Tex.Jur., § 139, p. 863; North American Accident Ins. Co. v. Bowen, Tex.Civ.App., 102 S.W. 163, writ refused. In the cited case, the universally recognized rule is stated to be that the law does not favor forfeitures, but that the contract should be liberally construed so as to avoid a forfeiture and to bring about the end sought to be accomplished by it. In the case last cited, the insurer had in its hands funds belonging to the insured, but failed to apply them to the payment of premiums due. The court quoted with approval from Brady v. Coachman’s Benev. Soc., N.Y.City Ct., 14 N.Y.S. 272, 273, where it was said: “It would indeed be strange law and bad morals which would hold him [insured] in default for his dues, and at the same time exonerate the association from payment of the sick benefit.”

To uphold defendant’s contention and relieve it of payment under the contract because -no premium had been paid for the week covered, would be to lend sanction to what appears to us to be a strained construction of the terms of the policy. Here we have plaintiff, who cannot be termed a temporary employe of Swift & Company, under defendant’s explanation of the rules under which the association operated, for she worked at the plant many times and was allowed coverage from time to time and was denied it at other times. She contracted to pay 30 cents per week for the protection provided in the policy, this to be collected by Swift & Company from her wages. She had worked enough that her wages in the company’s hands were more than enough to cover premiums. Before she had worked a whole week she received the injury which incapacitated her. In the nature of things she could not continue to work the remainder of the week. 'To permit defendant to decline to collect the thirty 'cents premium for that week and escape liability because she had not been working a week, or a major portion of it,, and claim the policy was forfeited for nonpayment of premium, does not comport with our idea of a fair and reasonable construction of the'contract.' To do so would be to hold that the insurance was not carried for a week, but only for a major portion thereof and whether or not the insured was a temporary employe would be left to the arbitrary discretion of defendant. In such a situation an employe would never be entitled to recover if he was injured or had to - quit for sickness during the first half of the week. We believe and so hold that under the terms of the contract if a person was employed by Swift & Company for an indefinite period, and was not discharged or laid off by the company within the week, but was forced to quit for sickness or accidental injury, he would be protected under the terms of the policy. Certainly the defendant would be entitled to collect the premium, but an hour’s work by an employe, such as was plaintiff, would be sufficient to enable defendant to collect the premium. In any event, when defendant became liable it would be indebted to the insured and would be authorized to apply enough of the insured’s funds in its hands to payment of any premium due. When its agent, Swift & Company, failed to deduct the premium from plaintiff’s wages earned, defendant should have deducted the amount from what it owed plaintiff and carried out its contract.

We have not attempted to relate all of the evidence, nor even that part most favorable to defendant, but following the rule of law announced above, we have referred only to those parts most favorable to the plaintiff, in determining if it was sufficient to support the verdict rendered. We think it ample. The trial court, therefore, did not commit reversible error in refusing to sustain defendant’s motion for a directed verdict'; the assignments of error raising the point are overruled, and the judgment is affirmed.


author: BOÑD, Chief Justice.

text:
    ALLIED UNDERWRITERS v. SPILLMAN et al.
    No. 12932.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 9, 1940.
    Rehearing Denied Dec. 14, 1940.

      Guy L. Mann, Sam McCorkle, and Andrew V. Allison, all of Dallas, for appellant.
    White & Yarborough and Leo R. Tresp, all of Dallas, for appellees.
   BOÑD, Chief Justice.

This cause of action arose under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq.- The beneficiaries, appellees here, brought the suit against appellant, Allied Underwriters, the insurance carrier, to set aside the decision of the Industrial Accident Board, denying benefits for the death of Joseph L. Spill-man. The deceased, at the time of injury resulting in death, was a carpenter, employed by Allen F. Marshall.

Appellant’s brief does not question the correctness of the judgment, or the findings of the jury, as not finding support in the evidence. Reversal is sought, first, because the average weekly wage or salary on which compensation was computed was not properly pleaded, to adequately advise the insurance carrier of the basis for compensation relied upon by the claimants, as provided in Art 8309, Sec. 1, R.C.S., Vernon’s Ann.Civ.St. art. 8309, § 1; second, because of'incorrect method of-proof and submission of issues relating to the injured employee’s weekly wage or salary; and, third, because of improper, prejudicial argument of appellees’ counsel before .the jury.

The record shows that the deceased had not worked in the employment in which he was injured, “substantially the whole of the year immediately preceding the injury.” Mrs. Spillman, wife of deceased, testified, in answer to interrogatories:

"Q. Now Mrs. Spillman, for a year before he (Mr. Spillman) was hurt, that is, assuming that he was injured on or about the 5th of July, not particularly the 5th, but on or about that time, 1937, and taking it back to the 5th of July, 1936, a year’s time, twelve months, was he regularly working during that year, or was there part of the time he wasn’t working? A. Well there was some that he wasn’t working.
“Q. Approximately what part of the year was it, that is in weeks, approximately how many weeks during that year, preceding year, was it he wasn’t employed? A. Well I should say around four or five weeks.
“Q. Now during the time that he did work, what did he earn? A. He earned a dollar an hour for regular working day of eight hours per day.”

The evidence also shows that other employees of the same class as Mr. Spill-man — carpenters—worked substantially the whole of the year immediately preceding the date of Mr. Spillman’s injury, and, in such employment, earned the same wage received by the injured employee. Jack Sherman testified that he worked as a carpenter during the whole of the year immediately preceding Spillman’s injury, in the same locality where Spillman was injured, and earned a dollar an hour, working eight hours per day; and A. T. Wilson also testified to substantially the same facts as to his own employment and earnings.

On the first contention (supra) for reversal, appellant does not question the sufficiency of the petition as against a general demurrer, and its special demurrers are directed solely to the manner of presenting the issue. It will be observed that the special demurrers urged to plaintiffs’ petition were not acted upon by the trial court, or disposed of by proper orders; therefore, under settled rule of law, such demurrers, though pleaded, are deemed to have been waived. In the absence of such an order of the trial court, every possible presumption must be indulged in aid of the petition. Bankers Lloyds v. Pollard, Tex.Civ.App., 40 S.W.2d 859. However, nevertheless, while there is no order of the trial court affecting appellant’s special demurrers, we are‘ of opinion that had the court acted adversely thereto and proper orders shown pf record, appellant’s assignments based thereon would have been without merit.

Under the Workmen’s Compensation Law, there are three ways of proving the average weekly wage of an employee, as set forth in Sec. 1, subds. 1, 2 and 3, Art. 8309. To qualify under subd. 1, the injured employee shall have worked in the employment in which he was engaged at the time of the injury,- “substantially the whole of the year immediately preceding the injury,” and his annual average wage or salary shall be 300 times the average daily salary which he shall have earned. The testimony of deceased’s wife, above related, placed his employment outside this class for computation of his weekly wage. Under subd. 2, .if the employment of an injured employee is not shown to fall under subd. 1, then the annual average wage shall be computed, 300 times the average daily wage of salary which other employees of the same class, working substantially the whole of the preceding year in the same or similar employment, in the same or in a neighboring place, shall have earned. Two witnesses testified (Sherman and Wilson) that they worked more than 300 days of the year immediately preceding the date of Spillman’s injury, in the same place where Spillman was employed, or in a neighboring place, at a salary or wage of $1 per hour for an eight-hour day. This method being established by uncontroverted testimony, there can be no question that subd. 3, providing for average weekly wage to be computed by the court in a manner which may seem just and fair to both parties, has no application. .

Our courts have repeatedly held that subds. 2 and 3 of the Act cannot be resorted to for determining the average weekly wages of an employee, if the proof shows, or the record shows proof can be made, that the average weekly wage- or salary of such employee can be computed under subd. 1. The three methods are interdependent, thus placing claimants under an election to rely upon one and not upon all of them. However, if in doubt as to which of the three methods should be sustained by proof on trial of the cause, the claimants are privileged to plead, in the alternative, the three methods.

Plaintiffs’ pleadings alleged that the average weekly wages of Joseph L. Spillman were $42, and that he had been engaged in the employment in which he was working at the time of his injury, for more than one year next prior thereto. This allegation, if sustained by proof, would clearly place Spillman’s employment under subd. 1, thus avoiding computation under subds. 2 or 3. Then plaintiffs alleged that they are informed and believe, and therefore allege it to be a fact, that other employees of the same class as Joseph L. Spillman worked substantially the whole of the. year immediately preceding the date of his injury, and earned $42 per week. This allegation, if sustained by proof, clearly places the computation under subd. 2. Then plaintiffs pleaded, in the alternative, that, if the computation of the employment does not come under subds. 1 or 2, the court favor subd. 3, and, in conclusion, group all such allegations that have direct bearing upon the issue of wage or salary computation, saying: “Plaintiffs further respefctfully show to the court that they are entitled to recover compensation insurance due on account of the disability of Joseph L. Spillman, under the terms and provisions of the Workmen’s Compensation Act of Texas, upon the policy of insurance issued by Allied Underwriters to Joseph L. Spillman’s employer, Allen F. Marshall. In the event the court finds and believes that plaintiffs have not properly set out Joseph L. Spillman’s daily, weekly, or average weekly wages, or the period of time he worked, or the daily, weekly, or average weekly wages of other employees engaged in the same or similar employment to that at which he was working when injured in the same or neighboring place during substantially the whole of the year immediately preceding the date of his injuries, then plaintiffs ask the court to find and establish the correct wages and average weekly wages of Joseph L. Spillman and other employees upon which the compensation is based, and to award plaintiffs compensation insurance upon the basis of said wages, or average weekly wages found by the court.”

We do not think plaintiffs’ petition is open to the challenge that it is insufficient to raise alternative pleas for compensation, to allow proof under all three of the methods designed by the statute. It clearly joins issues necessarily required to be proven; but, if it can be said that plaintiffs’ pleadings are imperfectly drawn, the defects are cured by the verdict of the jury, established by unchallenged and uncontroverted pfoof. In compensation cases, the construction of pleadings must be liberally made in favor of complainant. Southern Surety Co. v. Weaver, Tex.Com.App., 273 S.W. 838.

The next ground of complaint, that is, that the trial court erred in admitting evidence to sustain the wage computation under subd. 2 of Art. 8309 (testimony of Sherman and Wilson, supra), before evidence tendered showing that subd. 1 had no application to deceased’s employment; and, allowing the jury to find that Joseph L. Spillman had not worked “substantially a year” — a question of law, without the province of the jury to determine — is, we think, without merit. While the substance of the rule is, that it is necessary for plaintiffs to allege, and for the evidence to show, that the weekly wage cannot be computed under subd. 1, before qualifying for computation under subds. 2 or 3, yet we have no rule prescribing the order by which a party must introduce his evidence. It is largely in the discretion of the trial judge to prevent introduction of testimony out of its usual order. When evidence is offered which, at the time, seems wholly immaterial and irrelevant and thereafter becomes material, the exercise of such discretion on the part of the judge, where no substantial harm or hurt is shown, presents no reversible error. Texas Employers’ Ins. Ass’n v. Adcock, Tex.Civ.App., 52 S.W.2d 781; Id., 125 Tex. 484, 83 S.W.2d 310.

And, we do not think reversible error is presented in the manner in which the issues were submitted. The trial court submitted issues to the jury: (1) Issue No. 12 — to find whether or not Joseph L. Spill-man had worked “substantially the whole of the year immediately preceding the date of his said injury, if any was sustained by him on or about July 5, 1937?” To which the jury answered, “No”; and (2), Issue No. 16 — -whether Joseph Spillman did not work “substantially the whole of the year, from July 5, 1936, to July 5, 1937, in the same class of work he was performing for Allen F. Marshall, if any, July 5, 1937?” To which the jury answered: “He did not work substantially the whole of the year.” In due time, appellant urged objections to the issues, first, on the ground that there is no evidence in the record to warrant the submission of said issues; second, the court suggests in the issues, the answers to be made; and, third, the issues submitted leave the jury no discretion as to the manner in which the questions shall be answered; and then requested the court to submit its proffered issue, which was given, reading as follows: “Special- issue No. 10: Do you find from a preponderance of the evidence that Joseph L. Spillman did not work substantially the whole of the year from July S, 1936, to July 5, 1937; in the same class of work he was performing for Allen F. Marshall, if any, on July 5, 1937?” To which the jury answered, “No”.

It will be observed that the above issue, requested by appellant, is in substantially the same words complained of in the court’s main charge; and that appellant made no challenge to the submitted issues, as presenting to the jury a question of law, seeking a finding that the injured employee did or did not work “substantially the whole of the year”; instead of a finding of fact, as to the number of days such employee worked during the preceding year. It will be further observed that, in the charge of the court, the term “substantially the whole of the year” is defined as follows: “You are instructed that wherever the phrase ‘‘substantially the whole of the year’ is used in the court’s charge is meant 300 days, or close to or near to 300 days. It may be slightly more than 300 days or slightly less than 300 days.” Appellant raised no objection to the special issues submitted, or challenged the definition of the term, “substantially the whole of the year,” as presenting a question of law and not a question of fact. We think it was the duty of appellant to point out the particulars which it now claims were erroneous, and to have done so before the case was submitted to the jury. Art. 2185, R.C.S.; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; Karotkin Furniture Co. v. Decker, Tex.Civ.App., 32 S.W.2d 703; Heid Bros., Inc., v. Bray, Tex.Civ.App., 7 S.W.2d 165.

The next ground of complaint assigned in appellant’s brief, claiming prejudicial argument of appellees’ counsel, does not reach this court in a manner requiring consideration. The record does not show approved bill of exception or any action of the trial court, indicating that the argument was ever made. Appellant brings the matter to the attention of the trial court only in motion for new trial, which bears no indicia that same was ever approved by the court. There being no basis for the assignment in the record, it is overruled without further comment.

The judgment of the court below is affirmed.


author: TIREY, Justice.

text:
    DAVIS et al. v. FIRST NAT. BANK OF WACO.
    No. 2195.
    Court of Civil Appeals of Texas. Waco.
    Nov. 28, 1940.
    Opinion after Remittitur Dec. 5, 1940.
    Rehearing Denied Dec. 19, 1940.

      Raymond E. Buck,'of Fort Worth, and Victor C. McCrea, of Henderson, for plaintiffs in error.

      Sleeper, Boynton & Kendall, of Waco, for defendant in error.
   TIREY, Justice.

This is a suit in trespass to try title, brought by The First National Bank of Waco against Irma Powers Davis and her husband, Thurman Davis, to recover title to and possession of two tracts of land in the city of Waco, Texas. Defendants answered in due order of pleading, and, in addition thereto, filed cross-action against plaintiff in trespass to try title for title and possession of said property. Plaintiff answered the cross-action, and, by way of alternative plea, asked that in the event the defendant should prevail, the court recognize and foreclose its lien for taxes paid in good faith and belief of ownership, subsequent to execution and delivery of guardian’s deed to it. The case was tried before the court without the intervention of a jury upon an agreed stipulation as to the evidence, subject to certain objections as to admissibility. The trial court awarded to the bank title to and possession of the north one-half of the first tract and the whole of the second tract. The defendants recovered of the bank the title and possession of the south one-half of the first tract. The court found that the bank had paid taxes in good faith and under color of title and claim to ownership of the real estate decreed to defendants and established as a charge and lien (the taxes so- paid, less rents collected) against the property awarded to defendants, and further awarded to said bank a personal judgment against defendants, together with foreclosure of said lien. The defendants have appealed. The parties will be designated as in the trial court.

Anderson Powers and his wife, A. E. Powers, constitute the common source of title. The property involved was community property of their marriage. A. E. Powers died testate in 1899, leaving her husband and two children only, Laura Powers and Albert Powers, who were the sole beneficiaries under her will which was duly probated. Albert Powers, aforesaid, died intestate in 1906 and left surviving him his widow, Mrs. Lola Powers, and two children only, Albert R. Powers, a boy then 5½ years old, who died in October 1913, while still a minor, intestate and unmarried, and Irma Powers, 9 years old at her father’s death, now the wife of Thurman Davis, one of the defendants in this suit. Anderson Powers, aforesaid, died testate in 1909, without having remarried, and his will was duly admitted to probate. He left surviving him one child only, Laura Powers, and two grandchildren only, Albert R. Powers and Irma Powers,' aforesaid, children of his deceased son. It is admitted that Laura Powers took the fee to the property she received under the terms of her mother’s will, but there is a controversy as to the title that Laura took under the will of her father.

That part of her father’s will which is pertinent to the matter in question is as follows: “The remainder of my interest in said estate I give equally to my two children, Laura- and Albert, they to have the use of it and the income from it during their natural lives but not to sell or dispose of it in any way, after which it will inure to their legal heirs.”

In August, 1909, decree of partition was entered in suit in the 19th District Court of McLennan County, brought by Irma Powers (now Irma Powers Davis) and Albert R. Powers, minors, by next friend, against Laura Powers and Lola Powers. This decree, among other things, directed that said partition be made according to quality, quantity and value between the said parties in accordance with the decree, but specified that partition not be made between Mrs. Lola Powers and her minor children, but to partition the interest of Laura Powers from said, widow and her two children, and report their action to the court. No issue is made or raised as to the division between the parties. The commissioners allotted to Laura Powers the property in litigation .(and other property). The decree set apart to Laura Powers, in severalty, the share awarded to her, and with reference to the interest received under her father’s will provided: “ * * * And the possession of the other one-half undivided interest in and to the said real estate be and the same is hereby divested out of all of the said other parties to this cause, their heirs, executors, administrators or assigns and such possession and right be and the same is hereby vested in the said Laura Powers for and during her natural lifetime only under and by virtue of the terms of the will of her father, A. Powers, whereby all of the rights and income therefrom during her natural life are vested in her absolutely to dispose of as she desires and she is to have the exclusive use of the said property, real for and during her natural lifetime. After her death the right and title in and to an undivided one-half interest in and to all of said real property shall go to the legal heirs of the said Laura Powers absolutely.” Laura Powers voluntarily made her appearance and waived citation and service in the above causfe and it was done in this manner: The waiver was signed “Laura Powers, by Prendergast & Williamson, attorneys for said defendant.” The validity of said decree of partition' is in nowise attacked. It was stipulated that “Laura Powers was, from birth, afflicted both in body and mind, being epileptic, having one side paralyzed, and her mental capacity never at any time exceeded that of a child seven or eight years of age.” (Counsel, for both parties in their briefs have treated Laura Powers as a non compos mentis.) Laura Powers was adjudged a person of unsound mind in the Probate Court of McLennan County in March, 1915, and a guardian of her person and estate was appointed and the guardian qualified and acted until his death in October, 1928. Thereafter, another guardian was appointed and he qualified and continued to act until Laura Powers’ death, which occurred on November 9, 1937.

In December, 1936, the guardian of Laura Powers, duly authorized thereunto by the Probate Court, executed and delivered a deed to the bank conveying the property involved in this law suit and other property not necessary to this discussion, said property constituting the bank’s security, in satisfaction of the estate’s indebtedness (approximately $30,000). It appears that the guardian and the bank believed the property was correctly described and the bank went into possession of the property immediately and retained possession continuously since the date of the deed, paying taxes on the property and exercising dominion and control over the same. The judgment entered by the trial court has been assailed mainly on three grounds: (1) That the description of each tract in question was insufficient to pass title; (2) that there was no evidence to sustain the award to the bank for taxes paid in good faith and foreclosure of tax lien against the property awarded to defendants; and (3) that Laura Powers took only a life estate under her father’s will, as decreed in the partition, and therefore the title to that share received by her under said will must .fail.

We think the third assignment presents the only serious question in this case, and, for that reason, we will discuss it first. As above stated, all parties have treated the decree of partition as a valid judgment and said decree of' partition is a muniment of such title as the bank acquired by its mortgage and deed hereinbefore referred to. The first question that presents itself to us is whether Laura took a life estate only or an estate in fee under her father’s will; and second, what effect, if any, was the decree of partition on the title that Laura acquired by virtue of her father’s will.

The language in her father’s will, which is controlling, is as follows: “The remainder of my interest in said estate I give equally to my two children, Laura and Albert, they to have the use of it and the income from it during their natural lives but not to sell or dispose of it in any way, after which it will inure to their legal heirs.” We are of the opinion that the rule in Shelley’s Case applies to the foregoing provision of the will and that under said rule, Laura took the fee to the title to the property which she received under her father’s will. -A concise statement of this rule is: “When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or the heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent Com. 215; Hawkins v. Lee, 22 Tex. 544; Hancock v. Butler, 21 Tex. 804; Simonton v. White, 93 Tex. 50, 53 S.W. 339, 77 Am.St.Rep. 824; Lacey v. Floyd, 99 Tex. 112, 87 S.W. 665; Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160. “The rule in Shelley’s Case is in force in Texas, and has become a rule of property.” See Lacey v. Floyd, supra [99 Tex. 112, 87 S.W. 667]. In applying the foregoing rule, our courts have held: “The uniform conclusion is reached that no matter how clear and unequivocal the language by which a life estate only is sought to be given to the ancestor, this purpose and intention is overturned by granting in the same instrument a remainder to his heirs, general or special.” Crist v. Morgan, Tex.Com.App., 245 S.W. 659, 660.

Did the decree of partition divest Laura Powers of the fee simple title to the property she received under her father’s will? We think not. In order to determine the effect of the decree of partition, it is necessary to consider the issue made by the pleadings in said suit. (The pleadings are in evidence.) The original petition, in part, alleged: “That the plaintiffs and defendants, each of them own and are interested in an undivided interest in and to the following described properties, both real and personal; that said property is capable of partitioning in kind; that the-property so owned jointly by plaintiffs and defendants is described as follows: * * * (then follows description of property).” Said petition further alleged: “Of the above real estate these plaintiffs are entitled to a one-fourth interest each in and to all of said property, except the property known as the Hinchman residence on Columbus Street. As to that piece of property they are entitled each to a one-fourth interest in and to said property, after deducting the sum of $4500.00 from the value thereof, which goes to the defendant Laura Powers, and the defendant, Laura, is entitled to a. one-half interest in and to said real estate, plus $4500.00 value in the Hinchman property; * * * ”. The prayer, among other things, asked “that your petitioners do have and recover of and from the defendants their interest in said real and personal property as hereinbefore alleged.” Laura’s pleadings raised no new issue. She merely entered her appearance (by waiver) as hereinbefore stated. There is nothing in the pleadings of any of the parties asking for a construction of the will of Anderson Powers. The parties, according to the pleadings, owned the property jointly and the relief sought was a severance or a partition of their present interests in the property. There is no allegation that the minors had or claimed any remainder interest in the title to the property that Laura acquired by virtue of her father’s will. “It is an established general principle that a party is concluded by a judgment in the right only in which he sued or is sued.” Caruth v. Grigsby, 57 Tex. 259, point page 266. “A partition between joint owners does not confer title upon either, but has the effect only to dissolve the tenancy in common, and leave the title as it was before, except to locate such rights as the parties may have, respectively, in the distinct parts of the premises, and to extinguish such rights in all other portions of that property.” Chace v. Gregg, 88 Tex. 552, 32 S.W. 520, point page 522. “In this state partition by suit, whether brought under the statute or without the aid of the statute, does not proceed independently of the rules of equity.” Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290, point page 296; Arnold v. Cauble, 49 Tex. 527. Now we think it definitely appears that the legal status of the minors, Irma and Albert R. Powers, as the heirs of their father and grandfather, was something entirely distinct from their legal status as the heirs of their aunt, Laura. See Thompson v. Cragg, 24 Tex. 582, point page 596. The record is undisputed that at the time the decree in the partition suit was entered, Laura was unmarried and she lived for approximately twenty-nine years after the decree of partition was entered without having been married and without having issue born to her. Therefore, Laura’s heirs as such were unknown at the time the decree of partition was entered and the identity of Laura’s heirs at that time could not have been determined and the decree of partition did not do so. We therefore hold that the pleadings in the partition suit did not raise the issue of the respective rights of Laura and her legal heirs in and to the interest bequeathed to her under her father’s will, and that neither the issue nor her legal heirs as such were before the court for such adjudication. It is the rule in Texas that “ * * * a court of equity will not take jurisdiction of a suit for the construction of a will unless it can afford immediate relief. * * * ” Cousins v. Cousins, Tex.Civ.App., 42 S.W.2d 1043, 1045, writ refused; Munger v. Richards, Tex.Civ.App., 87 S.W.2d 797; 69 C.J. 868. “Courts do not sit to decide mere abstract questions of law, but to redress grievances and prevent wrongs.” Moore v. Stark, 118 Tex. 565, 17 S.W.2d 1037, point page 1041. Moreover, when the language of the decreé is considered in its entirety, it does nót leave us to speculate but it expressly vested title in Laura to the property allotted to her in the partition exactly as it was vested in her under the terms of the wills of both her mother and father and the exact language of her father’s will was incorporated in the decree with reference to the share which she received thereunder. “When the language of a decree is susceptible of two constructions, from one of which it follows, that the law has been correctly applied to the facts, and from the other that the law has been incorrectly applied, that construction should be adopted which correctly applies the law.” Gough v. Jones, Tex.Com.App., 212 S.W. 943, 944; In re Summers, 79 Ind.App. 108, 137 N.E. 291; Treece v. Treece, 125 Cal.App. 726, 14 P.2d 95. We are therefore of the opinion and hold that since Laura took the feé tó the share devised to her under her father’s will, her title as such was not impaired by the decree of partition. Vernon’s Annotated Statutes, art. 6099; Black on Judgments, Vol. 2, p. 797; O’Connor v. Vineyard, 91 Tex. 488, 44 S.W. 485, point page 488.

We think that the description of each tract in question was sufficient to support the court in the award of the tracts it made to the bank. We believe that it is controlled by the rule “that the description given in such a deed, or other documents therein referred to, is sufficient, if it enables the land to be identified with reasonable certainty.” 14 Tex.Jur. 999; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282. See, also, Battle v. Wolfe, Tex.Civ.App., 283 S.W. 1073, writ refused.

We also think the evidence is ample to support the judgment of the court that the bank paid the taxes in good faith and under color of title, and that it is entitled to be reimbursed. Gilmore v. O’Neil, 107 Tex. 18, 173 S.W. 203; 14 Tex.Jur. 1003; Meador Bros. v. Hines, Tex.Civ.App., 165 S.W. 915, point page 922, error refused.

Defendants complain of the action of the court in awarding personal judgment against them for the amount of the judgment for taxes paid in good faith. No motion for new trial was filed in the district court, nor does it appear from the record that the defendants complained of any error in the calculation of the amount of taxes paid in good faith, nor to the award of •personal judgment against them. It does not appear that these questions were raised until after the appeal was perfected in this court. The pleadings of both plaintiff and defendants alleged that the defendants were husband and wife. 23 Tex.Jur. p. 344; Graham v. Carmany, Tex.Civ.App., 2 S.W.2d 467. Bank’s counsel set out in their briefs “ * * * the amount of the judgment for taxes paid in good faith was miscalculated by us and should have been $980.33 instead of $1230.83, and hasten to enter our remittitur at the first opportunity for the difference. * * * We are perfectly willing to enter a further remittitur to such judgment to the extent that it fixes a personal liability on plaintiffs-in-error, beyond their interest in the security, provided, however, if plaintiffs-in-error continue to prosecute their appeal on other points, after the entry of such remittitur, that all costs of appeal be adjudged against plaintiffs-in-error if the judgment be affirmed on all such other points; and, with such proviso, we here now enter such re-mittitur.” We are of the opinion that the case should be affirmed on all other points raised by defendants and upon the filing of the remittiturs by the bank as above indicated, this cause will be reformed, and as reformed, affirmed. We are also of the opinion that because of the failure of the defendants to call the errors aforesaid to the attention of the trial court, this reformation will not be at the cost of the appellees. See Houston Gas & Fuel Co. v. Perry, Tex.Civ.App., 55 S.W.2d 901. The bank is given ten, days from this date in which to file the remittiturs hereinabove referred to. Otherwise, the judgment of the trial court will be reversed and the cause remanded. Vernon’s Annotated Civil Statutes, art. 1862.

Opinion after Entry of Remittitur.

The defendant in error has entered re-mittitur in accordance with the provisions of the opinion of the court dated November 28, 1940. The judgment of the trial court is therefore reformed in conformity with said' remittitur, and as reformed, is affirmed. All costs incurred herein are assessed against plaintiffs in error, Irma Powers Davis and husband, Thurman Davis, and Commercial Standard Insurance Company, surety-on their appeal bond.


author: MOORE, Chief Justice.

text:
    HARTEL et al. v. DISHMAN.
    No. 7488.
    Supreme Court of Texas.
    Dec. 19, 1940.

      D. E. O’Fiel and W. R. Blain, both of Beaumont, for plaintiffs in error.
    W. O. Bowers, Jr., of Beaumont, for defendant in error.
   MOORE, Chief Justice.

Defendant in error, H. E. Dishman, as plaintiff, filed suit , in the District Court of Jefferson County against A. J. Hartel, Jr., George A. Barngrover, and David E. P’Fiel, trustees of George A. Barngrover Trust Estate, and J. A. Mitchell, sheriff of Orange County, to enjoin the sale of 250 acres of land out of the Claiborne West League in Orange County, which were advertised to be sold under an order of sale issued out of the District Court of Jefferson County, dated the 8th day of May, 1936, upon a judgment recovered in a suit styled George A. Barngrover Trust Estate, by the above-named trustees, against M. A. Van Auken, a feme sole, on the 25th day of September, 1933, for the amount of two notes for $1,250 each, and for a foreclosure of a deed of trust against said land. Upon a plea of privilege, the case was transferred to the District Court of Liberty County. The parties will here be referred to as they appeared in the district court.

Plaintiff alleged that on April 15, 1936, he was the owner in fee simple of'the land in question under a general warranty deed of that date, for a valuable consideration, from one Stuart R. Smith; that prior to the execution and delivery of that deed, he made an examination of the records of Orange County and that there was not then any record of a suit filed in that county by the Barngrover Trust Estate affecting said land, nor was there a lis pendens notice there filed of any such suit, nor was there an abstract of this judgment filed in the records of said county; and for which reasons he was not charged with notice of any right of the trust estate to said land. That there was recorded in the deed records of Orange County a deed of trust executed by Martha A. Van Auken to E. B. Pickett, Jr., trustee, dated August 17, 1927, and recorded in Volume O, pages 443-446, of the deed records of Orange County, to secure the payment of two notes of same date payable to the order of the trust estate for $1,250 each, due, respectively, August 27, 1928, and 1929, and which described the land in suit. That December 12, 1933, Martha A. Van Auken by warranty deed conveyed this land to plaintiff’s grantor, Stuart R. Smith; that the judgment in such former suit was void because: •(!) The petition did not allege the residence of the defendant; (2) failed to allege that the deed of trust was given to secure the payment of the notes; and (3) that the citation served upon the defendant stated that the land sought to be foreclosed on was situated in Jefferson County; and that by reason of all such matters the plaintiff at the time of his purchase was entitled to' rely and did rely upon the fact that the records of Orange County disclosed that the notes were barred and the deed of trust lien extinguished by virtue of the limitation statutes of this State. Wherefore, plaintiff was entitled to said land free of any claim in behalf of said trust estate, and to a writ of injunction to restrain the sale of same by the sheriff of Orange County; and on final trial that the cloud so cast on plaintiff’s title be removed.

The defendants answered by general demurrer and general denial.

The district court granted a temporary injunction against the sale of the property, and upon a trial had on the 4th day of March, 1937, rendered judgment in favor of the plaintiff, quieting the title to the premises in favor of the plaintiff “free and clear of any claims of the defendants” by virtue of said deed of trust, and free and clear of any claims of the defendants by virtue of the aforesaid judgment. Defendants appealed to the Court of Civil Appeals for the Ninth Supreme Judicial District at Beaumont, and that court on April 7, 1938, affirmed the judgment of the district court.

The Court of Civil Appeals in its opinion, 116 S.W.2d 891, declined to pass upon that portion of the judgment of the trial court which held void the judgment of the Barn-grover Trust Estate against Mrs. Van Auken; but held that the judgment of the district court should be affirmed because defendants had not discharged the burden of proof which the court thought rested upon defendants to allege and prove that plaintiff purchased the land with notice of the filing of the Jefferson County suit; and cited in support of its opinion, Frazier v. Tankersley, Tex.Civ.App., 272 S.W. 212, and Marshburn v. Stewart, 113 Tex. 507, 254 S.W. 942. This court granted defendants’ petition for writ of error.

The testimony upon the trial of the cause, so far as relevant, upon the part of the plaintiff, consisted of the following: (1) A recorded deed from Martha A. Van Auken to Stuart R. Smith, dated December 12, 1933, and which described this land according to the description shown in said deed of trüst; and a deed from him to Westulane Corporation, dated February 13, 1934, and a reconveyance by the corporation to Smith, dated April 15, 1936; (2) a recorded deed to same premises from Smith to plaintiff, dated April 15, 1936; (3) a certified copy of the original petition in the suit of George A. Barngrover Trust Estate et al. v. M. A. Van Auken, a feme sole, which was filed in the District Court of Jefferson County July 28, 1932, and which will be more fully referred to and discussed; (4) an alias citation issued out of that court commanding the sheriff to summon M. A. Van Auken, a feme sole, to appear and answer plaintiff’s petition in said suit, and the return of the officer thereon showing service upon her in said county September 13, 1932. This citation was in the usual form and contained the substance of plaintiff’s petition, with the exception that it recited that the land sought to be foreclosed on was a part of the Claiborne West League in Jefferson County; and (5) a certified copy of the judgment recovered in said cause.

Defendants’ only evidence was the aforesaid judgment.

The plaintiff did not testify, nor did he offer any testimony other than that of the deed records, as substantially set out above, and copies of the proceedings had in the former suit of Barngrover Trust Estate against Mrs. Van Auken. Hence, it appears that plaintiff neither alleged in his complaint nor proved that he or his vendor, Stuart R. Smith, were bona fide purchasers of the land in question without knowledge or notice of the suit which resulted in the judgment in question against Mrs. Van Auken.

We do not agree with the holding of the Court of Civil Appeals that defendants rested under the burden of alleging and proving that plaintiff purchased with notice of the filing of their suit against Mrs. Van Auken. The filing of that suit, as between the parties, stopped the running of the statutes of limitation as effectually as if the maker of the notes and the grantor of the deed of trust had formally renewed the debt and lien. Ater v. Knight, Tex.Civ.App., 218 S.W. 648, writ refused; Paddock v. Williamson, Tex.Civ.App., 9 S.W.2d 452, writ refused. The plaintiff, claiming title through Mrs. Van Auken, could assert no better right to the land in suit than she could have asserted, unless he was a bona fide purchaser of the same without notice of the pendency of the suit. That, we think, results from the- plain reading and effect of Articles 6640 and 6642, R.C.S. 1925, and Article 6643, Vernon’s Ann.Civ. Statutes, Acts of the 40th Leg., 1927, p. 83, ch. 59. Article 6640 provides in substance that during the pendency of any suit involving the title to or interest in any real estate, or to enforce any lien thereon, either party may file a notice of the pend-ency of- such suit with the county clerk of each county where such real estate or a part thereof is situated.

Article 6642 provides: “The pendency of such suit or action shall not prevent effective transfers or encumbrances of such real estate to a third party for a valuable consideration and without other notice, actual or constructive, by a party to the suit as against a subsequent decree for the adverse party, unless such notice shall have been properly filed under the name of the party attempting to transfer or encumber in the county or counties in which said land is situated.”

Article 6643 provides: “All such notices of pendency shall be notice to all the world of their contents and that the suit or suits mentioned therein are pending, and such notices shall operate as soon as filed with the county clerk for record, as provided in this Chapter whether service has been had on the parties to said suit or not.”

The effect of á pending suit before the passage of these statutes was to give constructive notice to all persons of the subject matter of the litigation; and no one, however innocent in fact, who purchased land in litigation from either party to the suit, was afforded protection, regardless of the fact that the purchaser may have paid full value, and that he neither knew nor had an opportunity to know of the pend-ency of the suit. This, court in the case of City National Bank v. Craig, 113 Tex. 375, 257 S.W. 210, 212, construed our lis pendens statutes, and in doing so referred to the harshness of the rule as’it existed at common law, which operated to divest persons of title to real estate or liens thereon acquired by them in good faith, and who had relied on the records of the office maintained to disclose the status of land titles. The court stated that by the adoption of these statutes the common-law rule of lis pendens was modified so that the pendency of any suit involving the title-to or interest in real estate “shall not prevent effective transfers or incumbrances to a third party for a valuable consideration and without notice, actual or constructive, by a party to the suit, despite a subsequent decree for an adverse party, unless there has been filed with the county clerk of each county wherein the real estate, or any part thereof, is situated, a notice of the pendency of the suit, * * The Court further said: “The act undertakes no change in the doctrine of Ms pendens save in favor of transferees and incumbrancers, for a valuable consideraton, and without actual or constructive notice of the pending suit." (Italics, the court’s.)

Inasmuch as the statutes make no change in the doctrine of lis pendens as it existed at common law, save to protect purchasers and transferees for a valuable consideration and without actual or constructive notice of the pending suit, all other purchasers or transferees from such a litigant are without the pale of the statute, and they take subject to the suit in the same manner as if no such statutes had' ever been passed, and are bound by the-judgment the same as the party to the litigation under whom the purchaser asserts-his title. If a purchaser pendente lite believes he is entitled to protection under the-statute as a good-faith purchaser, it is incumbent upon him to establish that fact. In the case of Waitz v. Uvalde Rock Asphalt Company, Tex.Civ.App., 58 S.W.2d 884, 886, the court said: “Appellant Waitz now asserts that he was an innocent-purchaser against the claim of appellant, under the foreclosure judgment, and, as-an innocent purchaser, had the right to-raise the homestead issue in this case, and on that issue was entitled to judgment for the lots in controversy. A complete answer to this contention is to say that he-failed to raise in his behalf the issue of innocent purchaser. The failure of appellee to file lis pendens notice or otherwise notify appellant Waitz of the pendency of its foreclosure suit was an immaterial issue, provided he knew that the suit was pending. It was his burden to show affirmatively that he did not know that fact, and also that he paid value for the property.”

A number of cases are cited in support of the opinion. See, also, Paddock v. Williamson, Tex.Civ.App., 9 S.W.2d 452, writ refused; Morton v. Lowell, 56 Tex. 643; Uvalde Co. v. Tribble, Tex.Civ.App., 292 S.W. 932; Palmer v. First National Bank, Tex.Civ.App., 77 S.W.2d 902, writ refused; Huselby v. Allison, Tex.Civ.App., 25 S.W.2d 1108, writ dismissed; English v. Plumlee, Tex.Civ.App., 291 S.W. 922.

Plaintiff contends that the burden of proof rested with the defendants in this case because plaintiff was “not required either to allege or prove that he was an innocent purchaser for value without notice as against plaintiffs in error, who assert only an equitable claim against the land, based on a deed of trust * * * and that “where one seeks to enforce his lien against a purchaser, who has a legal title, complete and fair upon its face, the-burden of proof is upon him to show that such purchaser had notice of his lieri. * * * »

In support of his proposition, plaintiff cites the case of McAlpine v. Burnett, 23 Tex. 649, 650, and numerous other authorities which in effect follow that case.

The vendor’s lien which the court was talking about in the McAlpine case was an equitable or implied lien, such as arises by implication of the law, when the purchase price of land has not been paid and the deed neither so recites nor retains an express lien to secure its payment. Such a lien is a pure equity, being based on no express agreement between the parties. The rule in such a case has no application to a lis pendens purchaser, nor to the holder of the vendor’s lien which is expressly retained in the deed of conveyanrice, nor to a deed of trust lien. Liens of the latter character are not dependent on the law for their creation and recognition, but they exist by written contracts between the parties, and are expressly within the purview of our registration statutes. Arts. 6626 and 6627, R.C.S.192S, Vernon’s Ann.Civ.St. arts. 6626, 6627; Morton v. Lowell, 56 Tex. 643; Ackers v. Frazier, Tex.Civ.App., 220 S.W. 426, writ refused; 36 Tex.Jur. pp. 428, 429, sec. 25; 43 Tex.Jur. p. 616. In the Morton case the court said: “The deed from Gilroy to Payne and Williams was not strictly a superior outstanding, title as that phrase is usually understood, but a junior title in them, alleged to be superior for want of notice, actual or constructive, of the prior trust deed under which Lowell claims title. To defeat this trust deed Payne and Williams must not only have been bona fide purchasers without notice, but for a valuable consideration paid before such notice; and the burden of proof devolved upon Morton to show these facts.”

Although the point has not been briefed by either party to this suit, we have given consideration to the question as to whether or not the plaintiff occupied the status of a lis pendens purchaser, inasmuch as he made his purchase approximately two and one-half years after the rendition of the judgment against Mrs. Van Auken. This direct question does not appear to have heretofore been passed upon by this, court. In other jurisdictions it has been held that the lis pendens continues not only until the judgment has been recovered, but in a case where the judgment directs the sale of property, until such sale has been effected. See Corpus Juris, Vol. 38, p. 423, and authorities cited in the notes, and Freeman on Judgments, 5th Ed., Vol. 1, pp. 1158, 1159, sec. 543. To the same effect is the decision in Davis v. John V. Farwell Co., Tex.Civ.App., 49 S.W. 656. We think these authorities announce the correct rule, subject, however, to the exception that the plaintiff in the judgment may lose the benefit of the rule by his inexcusable laches in the enforcement of the judgment.

The phase of the case just noted is not of material importance in the determination of this appeal, because plaintiff’s vendor made his purchase from Mrs. Van Auken, the defendant in the judgment, soon after the rendition of the judgment and within the time for perfecting an appeal from that judgment. Randall v. Snyder, 64 Tex. 350; Moore v. Moore, 67 Tex. 293, 3 S.W. 284; 28 Tex.Jur., p. 340.

A subsequent purchaser ordinarily acquires only the rights, interests, or title of h'is predecessor, and unless he shows himself to be a bona fide purchaser he can take only such rights as his grantor had. Jackson v. Palmer, 52 Tex. 427; Alford v. Cole, Tex.Civ.App., 65 S.W.2d 813; 43 Tex.Jur. pp. 313, 314. The plaintiff in this case held immediately under Stuart R. Smith, who was a purchaser from Mrs. Van Auken, the defendant in the judgment, and. there was neither pleading nor proof that Stuart R. Smith was a purchaser for value without notice of the pendency of the suit of the! Barngrover Trust Estate against Mrs. Van Auken.

The attack made by plaintiff- upon the judgment against Mrs. Van Auken, in addition to the allegation that the residence of the defendant was not stated in the original petition, was that such petition failed to state in terms that the deed of trust was given to secure the payment of, the notes declared on in that suit. That petition, after having fully stated the cause of action on the notes, alleged “that simultaneous with the making and execution and delivery of said notes; defendant made, executed and delivered to A. J. Hartel, Jr., a deed of trust covering the said defendant’s interest in the Clay burn West League, Orange County, Texas, and fully described in said deed of trust, profert of which said notes and said deed of trust will be made on the trial hereof; that same is a valid subsisting lien and entitled to be foreclosed in this suit.” The prayer of the petition was that defendant be cited to answer the petition and that plaintiff have judgment against her for his debt and for foreclosure of the mortgage lien, for an order of sale, and that such property be sold in satisfaction of plaintiff’s debt.

If plaintiff’s action in this case constituted a direct attack upon this judgment, or the grounds now alleged to annul the judgment had been presented on a direct appeal from that judgment, plaintiff’s position might be well taken. However, we are not here presented with that question. The authorities cited by plainiff in his brief are all cases where similar questions as to the sufficiency of a given petition were raised on a direct appeal.

Plaintiff’s attack on the Van Auken judgment is a collateral one. The rule is well settled in this State that where a proceeding is instituted to vacate and set aside a judgment, the parties to the judgment must be made parties to such proceeding, and unless that is done the attack is necessarily a collateral one. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932; Williams v. Nolan, 58 Tex. 708; Reed v. Harlan, Tex.Civ.App., 103 S.W.2d 236, writ refused; Smith v. Perkins, 81 Tex. 152, 16 S.W. 805, 26 Am.St.Rep. 794; York v. Cartwright, 42 Tex. 136; Dallas County Bois D’Arc, etc., Dist. v. Glenn, Tex.Com.App., 288 S.W. 165.

This case does not fall within that category of cases wherein a judgment may be successfully attacked collaterally because it lacked support in the pleadings. The petition here under attack, while faulty and probably subject to a general demurrer, was consistent with the relief prayed for and with the judgment that was rendered. It was likewise sufficient to challenge the attention of the court and to apprise the court and the defendant of the character of the suit and the relief granted by the court; nor was the petition so faulty but that it could have been amended. The judgment introduced in evidence by the plaintiff expressly recited that the defendant had been duly cited to appear and answer in the case. ■ It was stated by this court in the case of Pure Oil Co. v. Reece, supra [124 Tex. 476, 78 S.W.2d 934], “It is the settled law of this state that where a judgment is collaterally attacked, plain jurisdiction recitals * * * must be accorded absolute verity.” That, notwithstanding, the citation served upon Mrs. Van Auken, was sufficient to apprise her of the nature of plaintiff’s cause of action, both as to the notes and for the foreclosure of the deed of trust.

In the case of Weems v. Masterson, 80 Tex. 45, 55, 15 S.W. 590, 592, Stayton, C. J., speaking for the court, said: “A proposition that a judgment of a district court could be attacked in a collateral proceeding because pleadings were defective, if the court had jurisdiction of the subject-matter and the parties, would not be advanced, and it would be readily conceded that, however erroneous such a judgment might be, it would be. conclusive on the parties until set aside by some direct proceeding for that purposfe; and we are of opinion that this would be true even if the pleadings were so defective as to be bad on general demurrer, or as to present no issue of fact.”

See, also, Pure Oil Co. v. Reece, supra; Pearson v. Lloyd, Tex.Civ.App., 214 S.W. 759, writ refused; and Freeman on Judgments, 5th Ed., Vol. 1, p. 761 et seq.

The district court should have sustained the defendants’ demurrers to plaintiff’s petition, and at the close of the testimony judgment should have been rendered in favor of the defendants. But it appearing that the case may not have been fully developed, the judgments of the Court of Civil Appeals and of the district court are both reversed, and the cause remanded to the district court for another trial.


author: KRUEGER, Judge.

text:
    MILLER v. STATE.
    No. 21320.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    Earl Shelton and R. C. Wilson, both of Austin, and W. C. Wofford, of Taylor, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of five years.

Appellant was charged by indictment returned by the grand jury of Williamson County at the January Term, 1940, with the offense of burglary alleged to have been committed on or about the 10th day of November, 1939, by unlawfully breáking and entering the house then and there occupied and controlled by E. R. Logan with the intent then and there to fraudulently take therefrom corporeal personal property therein being and then and there belonging to the said E. R. Logan, etc.

It appears from the State’s testimony that on November 10th, some time after 1 A. M., the appellant and two companions overpowered the night watchman, placed tape over his eyes, taped his hands behind him and then took him behind a filling-station where one of the men guarded'him while the others burglarized the store of E. R. Logan, the Faust Cafe and the store of C. F. Hickman. The appellant, James G. Miller, was identified by the night watchman as one of the men who participated in the commission of the offense.

E. R. Logan testified that he lived at Liberty Hill and was engaged in the drug business there; that on or about the 10th day of November, 1939, the front door of his store was prized open -and some personal property taken therefrom; that sixty or seventy pair of ladies’ hose were taken from his store, also some jewelry, including a heart-shaped locket with a cameo on it and a chain attached thereto.

Mrs. McCafferty testified that she resided on Rio Grande Street in the City of Austin; that on November 8, 1939, about noon, -the appellant and his wife rented an apartment from her; that on the day after the alleged offense she saw appellant take some trash, papers and garbage from his apartment to the trash basket near the steps of her home. The basket was rather full of trash and in order to prevent the puppy from scattering it on the lawn she went out to put the trash in a deeper basket; that she noticed a box which she thought would make a nice box in which to put a pair of hose for Christmas; that she looked at the box, saw that it was soiled and then put it back in the trash can.

Paul Blair, an officer, came to her home, examined the trash can, and took therefrom a box and carried it away. After the appellant and his wife had been placed in jail, Mrs. McCafferty packed up his belongings and among them she found a little gold cameo locket wrapped up in a cup towel. This locket, as well as the hose box, was subsequently identified by Mr. Logan as having been taken from his store on the night in question. The box bore his cost. mark which he positively identified. On the morning after the burglary had been committed, the officers found that the telephone wires leading out of Liberty Hill had been cut.

Appellant did not testify or offer any affirmative defense.

The State, over the objection of the appellant, offered proof that Adams Grocery Store, the Purser Grocery Store and the store of C. G. Hickman had all been burglarized on the night in question. Appellant’s objection thereto was that the burglary of these various other stores was a separate and distinct offense and was an attempt upon the part of the State to prove extraneous offenses which did not tend to establish intent, res gestae or system. We are inclined to agree with the appellant’s contention.

In the instant case, the appellant was charged with the burglary of the Logan store. He made no. denial thereof further than his plea of not guilty. He was positively identified by the night watchman, and some of the property taken from the burglarized store on the night in question was found in his possession and he offered no explanation of his possession thereof. The fact that other stores were burglarized about the same'time in the same town did not shed any light on the alleged burglary or appellant’s connection therewith.

This is a companion case to that of Miller v. State, 146 S.W.2d 392, decided by this court on the 27th day of November, 1940. In that case appellant offered proof of an alibi which brought into question his identity at the time and place of the commission of the offense charged in that case and we there held that by reason thereof proof of the commission of another offense at or about the same time and pláce became admissible on the question of his identity but in the instant case his identity at the time and place of the commission of the offense charged was not brought into question; hence the fact that other stores were burglarized about the same time and place did not shed any light on the question of appellant’s identity or his connection with the offense charged. In support of what we have said, we refer to the following cases: McGowan v. State, 117 Tex.Cr.R. 74, 36 S.W.2d 156; Jordan v. State, 96 Tex.Cr.R. 622, 259 S.W. 585. The following cases sustain appellant’s contention that evidence as to the commission of other burglaries about the same time by the accused is not admissible: Hill v. State, 44 Tex.Cr.R. 603, 73 S.W. 9; Overstreet v. State, 67 Tex.Cr.R. 565, 150 S.W. 630.

For the error pointed out, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.