author: JACKSON, Chief Justice.

text:
    OBERHOLTZER v. MYLES et al.
    No. 5240.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 6, 1941.
    Rehearing Denied Feb. 10, 1941.

      Lawrence L. Barber, of Seagraves, Vick-ers & Campbell, of Lubbock, and Stub-beman, McRea & Sealy, of Midland, for appellant.
    W. E. Lessing, of Abilene, for appellees Daisy Lee Myles, James H. Myles, Jodie Pinkston, J. D. Pinkston, Bobbie Thorp, Ewing Thorp, Annie Williams, Cecil Vernon Corder, Clarence Emory Corder, Charles Erwin Corder, Nora Mae Jutson, and Bobbie Judson.
    Letcher D. King and Kirby, King & Overshiner, of Abilene, for appellees, Nora Mae Jutson, Bobbie Judson, Clarence E. Corder, and Cecil V. Corder.
    Laurel M. Dunn, of Abilene, for appel-lees Nora Mae Jutson, Bobbie Judson, Cecil Vernon Corder, Clarence Emory Corder, and Charles Erwin Corder.
   JACKSON, Chief Justice.

The record shows that R. B. Corder and Eliza A. Corder were husband and wife and acquired Section 36-B in Block AX, Public School Land, containing 388 acres, originally located in Gaines but by a change of the boundary line between Gaines and Yoakum Counties the land is now situated entirely in Yoakum. Mrs. Corder died on October 21, 193S, and left surviving her her husband, R. B. Corder, and their eight children, Daisy Lee Corder, who married James H. Myles, Jodie Corder, who married J. D. Pinkston, Annie Corder, who married L. R. Williams, Bobbie Corder, who married Ewing Thorp, Nora Mae Corder, who married Bobbie Judson, Cecil Vernon Corder, Clarence Emory Corder and Charles Erwin Corder.

R. B. Corder was appointed and duly qualified as community administrator of the community estate of himself and his deceased wife.

On May 14, 1938, five of the children instituted suit in the District Court of Yoa-kum County to partition said Section 36-B among all the children who they alleged each owned an undivided 1/16 interest, R. B. Corder an undivided 1/2 interest and that certain other defendants, among whom was R. V. Oberholtzer, were claiming some interest in the minerals.

Later the children and R. B. Corder were, as there was no controversy between any of them, allowed on their motion to proceed as co-plaintiffs and change the style of the- cause to Daisy Lee Myles et al. vs. R. V. Oberholtzer. The other parties named as defendants in the original partition suit were dismissed therefrom, and the children and R. B. Corder, hereafter called appellees, changed the suit to an action in trespass to try .title against R. V. Ober-holtzer, the appellant, to recover title and possession to an undivided one-half interest in the oil, gas and other minerals on said Section No. 36-B.

In their third amended original petition the appellees, in addition to the action in trespass to try title, in reply to the cross-action of appellant, pleaded a general denial, not guilty, denied under oath that R. B. Corder had executed and delivered the purported deed to R. V. Oberholtzer under which he claimed. They alleged that R. B. Corder was qualified as community survivor of the estate of himself and his deceased wife, and that about January 1, 1937, he relinquished to the children their one-half interest in the estate, including Section 36-B; that about April 1, 1937, R. B. Cor-der arranged with R. W. Pittman, who resides at Seminole, Texas, a real estate broker, to procure a purchaser for a one-half undivided interest in the oil, gas and minerals on said section of land; that thereafter on April 9th R. B. Corder executed a deed in blank omitting the name of. the grantee and left it with R. W. Pittman who agreed to notify Corder if a prospective purchaser was found and if such purchaser and the price for the royalty were satisfactory Corder would authorize' Pittman to insert in the deed the name of the purchaser, collect the consideration and deliver the deed but the deed was not to be delivered until authorized by R. B. Corder; that on April 27, 1937, R. B. Corder advised R. W. Pittman to discontinue his efforts to procure a purchaser; that on the 26th of April Pittman and the appellant entered into a conspiracy to obtain one-half of the minerals on said section and R. W. Pittman without authority and without consulting R. B. Corder inserted in the deed the name of R. V. Oberholtzer as grantee, had the deed placed on record and mailed to R. B. Corder a check for $1,868.20 as the purchase price; that he promptly went to Seminole, Texas, and tendered the check to Mr. Pittman who declined to accept it; all of which was done by Pittman and Oberholtzer for the purpose and with the intention of defrauding the children out of the estate of their deceased mother.

The appellees prayed that the defendant take nothing by his, cross-action; that the deed to him be cancelled and they be adjudged title and possession to the land and minerals.

The appellant answered by general demurrer, general denial, plea of not guilty, alleged that R. B. Corder was the duly qualified and acting community survivor of the estate of himself and his deceased wife; that on April 1st he listed with R. W. Pittman, a real estate broker, for sale an undivided one-half interest in the royalty on said section and authorized him to sell it to any purchaser who would pay the consideration therefor which was to be not less than $10 per acre to R. B. Corder;» that R. W. Pittman contacted the appellant almost immediately who agreed to purchase the royalty and pay therefor $11 per acre; that thereafter on the 9th of April R. B. Corder, individually and as community survivor of the estate of himself and his deceased wife, executed the deed sought to be cancelled and the name of the purchaser, R. V. Oberholtzer, was written therein; that it was agreed that the purchaser should be furnished an abstract and given time to have the title approved or rejected by his attorney at which time Pittman was authorized to deliver the deed to Oberholtzer upon the payment of the consideration. The abstract was furnished, the title approved and on April 26th the grantee paid $2,134 .to R. W. Pittman who paid $1,868.20 to R. B. Corder who accepted said amount as the consideration due on the sale and neither he nor any of the appellees have ever tendered to appellant any part of the purchase money so paid; that R. B. Corder has ratified the conveyance and appellees are estopped from questioning the title of appellant who purchased the property in good faith for a valuable consideration. He prayed judgment for title and possession to an undivided one-half interest in the oil, gas and minerals on said land.

On special issues submitted by the court the jury found in effect that the name of R. V. Oberholtzer did not appear as grantee in the mineral deed of date of April 9, 1937, when it was executed and acknowledged'by R. B. Corder before A. L. Duff; that R. B. Corder did not know at that time that R. W. Pittman had obtained R. V. Oberholtzer as a purchaser for one-half of the minerals; that R. B. Corder did not authorize the delivery of the deed to R. V. Oberholtzer upon the payment of $10 per acre net; that R. W. Pittman received a telegram from R. B. Corder requesting that all papers be returned to him prior to the time Pittman delivered the deed and received payment from R. V. Oberholtzer; that R. W. Pittman was agent for R. B. Corder for the sale of one-half of the royalty on Section 36-B; that Pittman was to advise Corder by mail or telegram of such offers as he might receive for the royalty and the name of the purchaser thereof before the deed was delivered.

On these findings the court rendered judgment that appellees have and recover of and from the appellant an undivided one-half interest in the royalty on said Section 36-B; that the deed be cancelled, annulled and held for naught; that the cloud be removed from the title and that appellant take nothing by his cross-action, from which judgment this appeal is prosecuted.

The appellant challenges as error the action of the trial court in refusing at his request to peremptorily direct a verdict in his behalf because he contends the undisputed testimony entitles him to a judgment for an undivided one-half interest in the minerals in and to said Section 36-B.

Mr. R. B. Corder testified in substance that he listed the oil, gas and minerals, which we will call royalty, for sale with R. W. Pittman, a real estate broker who resides at Seminole, Texas, about April 1, 1937, at $10 per acre net and agreed that the broker should have a commission; that on the 9th of April he was again in Seminole where Mr. Pittman lived and in order to consummate a sale quickly should a purchaser he found he executed a deed, leaving the name of the grantee blank, and the deed was placed with Mr. Duff to be held until a satisfactory purchaser was found who would pay the consideration when Mr. Pittman was authorized to have an abstract completed and furnish it to the purchaser for examination, notify the witness and the sale would be closed; that Fe had known Mr. Pittman three or four years; that Mr. Duff prepared the deed but witness did not read it and took the word of Mr. Pittman and Mr. Duff to the effect that it was a mineral deed; that he did not know whether an “undivided one-fourth interest or an undivided one-half interest was described;” that he did not know whether the words, “Ten and no/100 Dollars” or the word, “Yoakum,” or “All of Section 36-B in Block 6, Public School Lands” or that the language, “I, R. B. Corder, acting for myself and as community administrator” were in the deed or any other statement con-' tained therein but he testified that he did know that the name, R. V. Oberholtzer, grantee, was not in the conveyance when he signed it. He testified that he sold an undivided one-fourth interest to Mr. Cone on April 14, 1937, and another undivided one-fourth interest to Mr. Lowe on April 27th, and on that day wired Mr. Pittman from Abilene, Texas, to proceed no further with the sale of the royalty; that in reply he received a wire from Mr. Pittman at Abilene which stated as follows:

“Received at 140 Cypress St., Abilene, Texas.
“SWN 19 15 — Seminole Tex 27 153P— 1937 Apr 27 PM 2 01
“R. B. Corder
“Ans Date Abilene Tex
“Retel your royalty paid off yesterday by Oberholtzer
“I mailed you check to Avoca yesterday “R. W. Pittman.”

When he arrived home near Avoca on the evening of the 27th, he says he found a letter from Mr. Pittman dated April 26, 1937, enclosing a check for $1,868.20 which was the balance due at $10 per acre less the expenses of the abstract and recording fees and $20 of borrowed money; that this was the first time he was ever advised that Mr. Oberholtzer was the purchaser of this royalty and the next day, April ,28th, he went to Seminole and tendered the check to Mr. Pittman who declined and refused to accept it; that he thereafter took the check to the bank, deposited it, used the money and has never paid or offered to pay any part of said sum to either Mr. Pittman or the appellant.

Mr.Pittman testified that the deed was drawn by Mr. Duff, acknowledged before him by Mr. Corder on April 9, 1937; that the name of Oberholtzer was at the time written as the grantee in the deed which was left with Mr. Duff, all of which Mr. Corder knew; that it was understood also that Pittman was to procure an abstract of title and furnish to Mr. Oberholtzer so he could secure the opinion of his attorney thereon and when approved he was to collect the consideration, deduct the expenses, deliver the deed and forward to Mr. Corder ■ the balance due him on the purchase price.

The community administration on the estate'of Eliza A. Corder was granted in Jones County, Texas, and in order to abstract the title to this royalty situated , in Yoakum County, Texas, it was necessary to secure and have recorded in Yoakum County a copy of such proceedings. The clerk of Jones County certified to a copy of these proceedings on the 12th day of April, 1937, and the County Clerk of Yoa-kum County certified that the proceeding;? were received by him on the 14th of April at 4:50 P. M. and recorded on the 16th day of April thereafter. On the margin of these proceedings the County Clerk of Yoakum County made this note: “Return to R. W. Pittman, Seminole, Texas.”

On the former trial of this case an original letter from Pittman to Corder was introduced in evidence, but the date of the month on which it was written does not appear but it was evidently written between the 12th and 15th of April as stated by Mr. Pittman. The parts material to this app’eal are:

“Seminole, Texas, April, 1937
“Mr. R. B. Corder,
“Avoka, Texas.
“Dear Mr. Corder:
“I received the court proceedings from Clerk of Jones County-last Tuesday and sent them right on to Yoakum County for record and had abstractor Ed Dumas, of Plains to bring' the abstract down to date and just got the abstract last Friday and took it to Oberholtzer that afternoon -and he went to Midland early Saturday morning to turn it over to his attorney and on same day Mr. Cone phoned me about the abstract and I told him that we would get it to him just as soon as it was checked by attorney at Midland. * * * ”

Mr. Corder does not deny the receipt or genuineness of this letter.

Mr. Duff testified that he prepared the deed covering a one-half undivided interest in the minerals on said Section 36-B; that when prepared it contained the name of R. B. Oberholtzer as grantee and so contained such name when acknowledged by Mr. Corder; that he retained the deed and delivered it to R. W. Pittman when requested.

Mr. Oberholtzer testified that Mr. Pittman approached him relative to selling him the minerals about April 1, 1937; that a day or two thereafter he agreed to take the royalty; that he was to be furnished an abstract, which he received on the 19th or 20th of April thereafter; that he carried it promptly to his lawyer at Midland, had it examined, returned it to Mr. Pittman to correct some irregularities and on the 26th of April the contract was consummated; he gave Mr. Pittman his check for the consideration which was afterwards cashed, received the mineral deed which he had not theretofore seen, and had it placed on record; that none of the appel-lees ever offered to repay all or any part of the money he paid for the minerals and he was not advised,that there was any objection to the consummation of the sale.

The parties agreed that George L. Pax-ton was the common source of title for both appellant and appellees. The record shows without controversy that R. B. Cor-der was the community administrator of the community estate of himself and his deceased wife; that there had been no partition among the children and himself of the community property; that on the execution of the deed to Mr. Cone on April 14th he signed it individually and as community administrator of the estate of himself and his deceased wife; while in the execution of the deed of April 27th he failed to sign in his capacity as community survivor he later was required to and did sign in such capacity to correct to conveyance.

The court did not submit any issue on conspiracy or fraud and there is no testimony in the record that would authorize the submission of such issue.

The findings of the jury are based on testimony so indefinite, uncertain and unsatisfactory we question the sufficiency thereof to warrant the submission of the fact issues contained in the court’s charge to the jury or to sustain the findings thereon. We are inclined to the opinion that the testimony so greatly preponderates against the judgment that a new trial should be granted in the interest of justice. Texas Employers’ Ins. Ass’n v. Allen, Tex.Civ.App., 140 S.W.2d 897; Bankers Life & Loan Ass’n v. Chase, Tex.Civ.App., 114 S.W.2d 374. However, we pretermit this question, since we have decided that appellant’s contention that the judgment should be reversed and rendered in his behalf must be sustained since no other judgment could be rendered on the undisputed testimony showing that R. B. Corder ratified the transaction and hence the appellees are estopped from assailing the validity of the deed and the findings of the jury on the issues submitted become immaterial.

The testimony is that Mr. Corder and his children owned the undivided one-half interest described in the deed; that he was community administrator of the estate of himself and his deceased wife; that he listed the mineral rights on the land for sale with R. W. Pittman; that Mr. Pittman found a purchaser in the person of Mr. Oberholtzer who admittedly paid the price demanded by Mr. Corder who after offering to return the consideration, which offer was refused, retained the consideration and used and appropriated it. No repudiation of the transaction made on April 26, 1937, appears to have been made until suit was 'filed on May 14, 1938. No return of the consideration was tendered and no offer to'do equity in any way has been made and, in our opinion, the appellees are estopped to rescind this transaction, cancel the deed and recover the mineral rights. On April 26, 1937, Mr. Pittman by letter advised Mr. Corder that “Oberholtzer paid off today and I am enclosing to you my check for $1868.20 to balance less the following bills paid.” He then itemizes the school interest he had paid on the land, the expenses for abstract and recording fees and an item of $20 of borrowed money. This letter and the check enclosed were received on the 27th and on the following day Mr. Corder offered to return the check to Mr. Pittman who refused to accept it. There can be no question, therefore, but what Mr. Corder at the time he accepted the consideration for the royalty knew that Oberholtzer was the purchaser; that the amount he received was $10 per acre net less the expenses of interest, abstract and recording fees, and that the deed had been delivered and the transaction closed.

This conveyance was not void and ap-pellees could estop themselves by ratification. W. H. Threadgill et al. v. Butler, 60 Tex. 599; Fennimore v. Ingham et al., Tex.Civ.App., 181 S.W. 513; Gray v. Fenimore, Tex.Com.App., 215 S.W. 956; Burke-Mobray et al. v. Ellis et al., 44 Tex.Civ.App. 21, 97 S.W. 321; Schleicher et al. v. Runge et al., Tex.Civ.App., 37 S.W. 982; Dallas Joint Stock Land Bank of Dallas v. Burck et al., Tex.Civ.App., 102 S.W.2d 1074.

A grantor may on the general principles of ratification by his words, acts and conduct estop himself from denying the delivery of, or from attacking the validity of a deed. 14 Tex.Jur. 827, para. 64.

In 2 Tex.Jur. 487, para. 89, the .author says: “The principle is well established that, if one without authority assumes to act as agent, or if an agent exceeds his proper authority, the principal knowingly receiving and retaining the benefit of the transaction will be held liable. This principle is founded on estoppel.”

In American Jurisprudence, Vol. 2, page 181, para. 227, the- law is stated thus: “It is an established principle of law that where a person acts for another who accepts or retains the benefits or proceeds of his efforts with knowledge of the material facts surrounding the transaction, the latter must be deemed to have ratified the methods employed, as he may not, even though innocent, receive or retain the bene'fits and at the same time disclaim responsibility for the measures by which they were acquired.”

In Horst et al. v. Lightfoot et al., 103 Tex. 643, 132 S.W. 761, 763, Justice Williams, speaking for the Supreme Court relative to the ratification by the principal of the unauthorized act of an agent in connection with the consideration accepted for land, says: “All that was necessary to a ratification was that the proceeds of the sale should have been paid to Resley by Clepper according to his duty and retained by the former. If he received only the money paid in cash and kept it, he must have known that the sale was made partly on credit and have elected to abide by it; and the same conclusion would result, for a stronger reason, from the receipt and retention of both the cash and the credit payments or of any obligation taken for the latter.”

See also Harrison et al. v. McMurray et al., 71 Tex. 122, 8 S.W. 612; Vogel et ux. v. Zipp et al., Tex.Civ.App., 90 S.W.2d 668; W. R. Miller & Co. v. Hobdy et al., Tex.Civ.App., 159 S.W. 96; Burke-Mobray et al. v. Ellis et al., supra.

The judgment is reversed and here rendered that appellant, R. V. Oberholtzer, recover of and from the appellees title and possession to an undivided one-half interest in and to the oil, gas and minerals on Section 36-B in Block AX, Public School Land, containing 388 acres, situated in Yoakum County, Texas.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge.

license: Public Domain

text:
    JONES v. STATE.
    No. 21345.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Mark M. Carter, of Goose Creek (King C. Haynie, of Houston, of counsel on motion for rehearing only), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction for negligent homicide; punishment assessed at thirty days in jail.

On original submission the case appeared as one having neither statement of facts nor bills of exception in the record, and in an opinion of date January 8, 1941, it was so disposed of by judgment of affirmance. On January 22, 1941, appellant filed a motion for a rehearing, among other things calling attention to the fact that in all substantial particulars the State’s pleading and the judgment in this case were the same as in Bowles v. State, Tex.Cr.App., 146 S.W.2d 183, which had been reversed on October 30, 1940, and .the State’s motion for rehearing overruled on January 8, 1941. This contention was overlooked in passing on the overruling of the motion for rehearing in the present case. In a request for leave to file a second motion for rehearing appellant again calls attention to the opinions in the Bowles’ case, supra, not yet reported [in State Report].

The complaint and information contained two counts, the first charging appellant with negligent homicide of the first degree, and the second charging him with negligent homicide of the second degree. This case differs from the Bowles case only in the fact that the present case was tried before a jury. However, no instructions to the jury appear in the record and we are advised that an oral charge was given as is permissible under Article 663, C.C.P., but we are not informed from the record what the oral instructions were. We are without a statement of facts. Therefore we do not know what evidence was developed on the trial nor what laws applied relative thereto. The verdict returned by the jury reads as follows: “We, the jury, find the defendant guilty as charged and assess his penalty at thirty days in jail.” Upon that verdict the court adjudged only that appellant pay the costs of prosecution and that he be committed to the sheriff to he confined in, jail for thirty days. Neither the verdict nor-judgment specify of what degree of negligent homicide appellant has been, found guilty. Having no charge of the court before us and no facts proven on the trial, we are without data from which the judgment could be reformed. There is no' alternative but to reverse the judgment for the reasons clearly set out in the opinions in Bowles v. State, supra.

The judgment of affirmance and the judgment overruling appellant’s motion for rehearing are set aside and the opinions-withdrawn and the present opinion substituted therefor. The mandate heretofore issued is recalled. The judgment of the trial court is now reversed and the cause-remanded.


author: GRISSOM, Justice.

text:
    HUMPHREY et al. v. MIRIKE.
    No. 2085.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 17, 1941.
    Fred Humphrey, of Tyler, for plaintiff in error.
    Don Mirike, of Houston, for defendant in error.
   GRISSOM, Justice.

Appellee instituted this suit in the County Court of Gregg County against appellants. Thereafter, appellant Humphrey filed his plea of privilege to be sued in the county of his residence, to-wit, Smith County. Humphrey’s plea of privilege was overruled and from the judgment overruling his plea of privilege Humphrey appealed to the Court of Civil Appeals at Texarkana. Thereafter, pending the disposition of said appeal, a final judgment on the merits of the case was rendered in the trial court. From the judgment on the merits Humphrey has prosecuted this appeal.

In Humphrey v. Mirike, 134 S.W.2d 749, the Court of Civil Appeals at Texarkana reversed the .judgment of the trial court overruling Humphrey’s plea of privilege and remanded said cause with instructions to transfer the cause to Smith County.

The trial and judgment on the merits was subject to the reversal of the judgment on the plea of privilege. The judgment overruling the plea of privilege having been reversed and the cause ordered transferred to Smith County, it becomes our duty to reverse this judgment on the merits with directions to transfer the cause to Smith County in accordance with the judgment of the Court of Civil Appeals at Texarkana in Humphrey v. Mirike, supra. It is so ordered.


author: PRICE, Chief Justice.

text:
    CITY OF CORPUS CHRISTI v. McLAUGHLIN.
    No. 3994.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1940.
    Rehearing Denied Jan. 23, 1941.

      R. Briscoe King, City Atty., and J. P. Simpson, both of Corpus Christi (Carr &' King, of Corpus Christi, on the brief), for appellant.

      t M. A. Childers and W. W. Fowlkes,’ both of San Antonio, for appellee.
   PRICE, Chief Justice.

This is an appeal from the judgment of the County Court of Nueces County in a condemnation proceeding. The City of Corpus Christi, hereinafter called plaintiff, sought to condemn for public purposes the eastern portion of a certain lot in that City as the property of W. E. McLaughlin, hereinafter called defendant. The trial was 10⅝ the court and the judgment awarded defendant the sum of $3,056.25 as damages. From this judgment plaintiff has perfected this appeal.

There was no question of jurisdiction; as to the regularity of the proceedings; of the right of the plaintiff to condemn. The only question at issue was the value of the property sought to be condemned.

Plaintiff presents some sixty assignments of error with thirty-eight propositions supporting such assignments.

We think these questions arc raised:

First. Is the amount of the judgment supported by the evidence ?

Second. Did the court err in overruling the objection of plaintiff to the testimony of the witness A. C. Barker?

Third. Did the court err in sustaining the objection of the defendant to the testimony relative to defendant’s rendition of the property for taxation at a value of $290?

The decision of these questions will dispose of all of the assignments of error of plaintiff.

In the consideration of the question as to the'sufficiency of the evidence, it is at all times to be borne in mind that it is the function of the trial court to find on the disputed facts, and where there is a conflict of testimony such a finding is final, and further inquiry is foreclosed.

As has been said, the sole issue was as to the value of the land. Opinion evidence is the only direct evidence available.- After all, no two tracts of land are exactly the same. Defendant alleged the value of the property to be $6,000. On the subject of value Mr. Easley, a real estate dealer or broker, and Mr. Barker, a contractor with some familiarity with values of land in Corpus Christi, testified for the defendant. Three witnesses, real estate dealers, testified on behalf of plaintiff. The highest any of plaintiff’s witnesses placed the value of the property was $2,000. Mr. Easley placed it at $2,612.50, Mr. Barker at $4,-000.

It is contended that the testimony of Mr. Easley and Mr. Barker is without probative quality on the issue, in that they each made certain assumptions unfounded in fact as to the appurtenant rights attaching to the land as having a boundary on the shoreline of Corpus Christi Bay.

' Part of the eastern portion of the lot extended into the shallow waters of Corpus Christi Bay. Defendant had erected at a cost of $1,500 a pier 200 feet in length, extending easterly into the Bay. Without dispute the easterly 50 feet of this pier was on the land of the defendant sought to be condemned.

Defendant, before constructing this pier, made application to the City for a building permit, which was granted. In his written application, which was part of the permit, was the following: “Subject to be removed on approval of the Bay Front Project.” Part of the easterly portion of defendant’s lot is submerged land. Submerged land immediately east of the eastern boundary of the lot is enclosed in the lines of description of a patent issued to the plaintiff by the State of Texas in 1924. The lot in question was conveyed by the plaintiff to Mrs. Dell Hardin Hayes on April 22, 1938. In this deed the following reservation appears: “There is expressly reserved and excepted from this conveyance and reserved to the City of Corpus Christi, Texas, all rights of accretion and alluvian and all other riparian and/or littoral rights incident to or appertaining to the tract herein conveyed and all rights, titles or interest in and to any lands included within streets or extensions of streets on which this tract lies or abuts or may hereafter abut; it being the intention of the parties hereto to expressly limit the tract hereby conveyed to the property included within the boundaries above described.”

Defendant purchased the property from Mrs. Hayes on April 28, 1938. In his deed from Mrs. Hayes the following appears: “It is expressly understood and agreed that this conveyance is made subject to all the terms, conditions, reservations and stipulations contained in deed from the City of Corpus Christi to Dell Hardin Hayes, dated April 22, 1938.” Just how or from whom the City acquired this lot does not appear from the briefs. In the deed from the City to Mrs. Hayes reference is made to a certain map prepared by F. A. Von Blucher for J. Temple Dos-well in 1868, and recited to be on file in Nueces County. We have not the benefit of a copy of this map.

In the case of Gibson v. Carroll, Tex.Civ.App., 180 S.W. 630, from the finding of the trial judge copied in the opinion, it appears that the City of Corpus Christi is located on two leagues of land which were granted by the State to Levi Jones. Jones, on October 2, 1849, conveyed them by warranty deed to J. Temple Doswell. It is stated the calls of the metes and bounds description contained in the patent begin on the Bay and run with the meanders thereof, the course and distances of the meanders being stated. If such is the description contained in the patent, riparian, that is, littoral, rights were appurtenant to the land. In our opinion, if this is correct, such riparian or littoral rights were not affected by subsequent patents or grants to the City of Corpus Christi. The deeds under which defendant holds the land reserved all riparian and/or littoral rights to the City of Corpus Christi.

Now it appears that the City at least claims submerged land lying immediately east from the easterly portion of the land in controversy; the claimed frontage being easterly. This being the case, we deem it unnecessary to discuss the question as to whether, unless the City held land to be benefited by such riparian or littoral rights, it could .hold such rights.

It is well established by authority that riparian or littoral rights are subject to conveyance. Gibson v. Carroll, Tex.Civ.App., 180 S.W. 630; Martin v. Burr, 111 Tex. 57, 228 S.W. 543.

It seems to have been held as to riparian rights that same cannot be conveyed except to one having riparian lands. Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284, L.R.A.1916A, 504.

In the case of Gibson v. Carroll, supra, involving land on Corpus Christi Bay in the City of Corpus Christi, it is held that such rights are subject to conveyance; that such rights may be reserved by the grant- or.

We are of the opinion that riparian or littoral rights did not pass to the defendant in his deed from Mrs. Hayes. However, we. do not mean to hold that there may not be some peculiar advantages to the land in question from its location with reference to a navigable bay, for Corpus Christi Bay is such.

In the light of the above, let us examine the testimony of witnesses Barker and Easley.

Mr. Barker said, in substance, that the market value of the lot with its improvements was $4,000. Our construction of his testimony is that it is worth that amount, irrespective of whether riparian or littoral rights were appurtenant thereto. Included in this were the improvements existing on the lot. The improvement existing .on the lot was, of course, some fifty feet of the pier.

Mr. . Easley, as we consider his testimony, placed the value of the lot at $2,-612.50. This, without taking into consid-erátion the fifty feet of pier existing thereon. This did not take into consideration whether the land had riparian or littoral rights or otherwise.

The testimony of these two wJiness^, we think, sustained the finding of the trial court as to the value of the property.

It is urged by plaintiff that Mr! Barker was not qualified to give an opinion as to the market value of the land in question. He was not a real estate broker or dealer. However, during his residence in Corpus Christi of five.years or more he had bought fifteen or twenty houses in the town; testified that he was able to fix the market value of the portion of the lot in question. Judging of his qualifications-was' largely a matter of discretion of the trial judge. Fort Worth & D. S. P. R. Co. v. Judd, Tex.Civ.App., 4 S.W.2d 1032; Texas Pacific Coal & Oil Co. v. Taylor, Tex.Civ.App., 47 S.W.2d 1110; Massie v. City of Floydada, Tex.Civ.App., 112 S.W.2d 243.

Being actively engaged in business as a builder and contractor, he, no doubt, had occasion to familiarize himself with market values. There was no error in the ruling.

Defendant testified as a witness in his own behalf. However, he did not testify in his direct examination as to the value' of the property. He did, however, testify that according to his best estimate the dock or pier cost him about $1500. He described' in some detail the manner of the construction of the pier and the materials going into the construction.

On cross-examination the following took place: The defendant stated that he thought he had made a voluntary rendition of the property for tax purposes to Nue-ces County. The question was then asked:

“You placed a value in that rendition of $290, did you not? Answer: Well, I just put it what it was the year before.
“Question: Of course, that would be only fifty per cent of its value?
“Counsel for Defendant: I move the Court to strike that question and the answer for the reason that, as Mr. King has already explained to the Court, the value of the land is the market value and not the value placed upon it by the owner or the taxing authorities or anyone else, and for that reason I object to the question. It is not the proper criterion of value of the property, and I take it that is the intention and purpose of introducing the testimony.
“Attorney for' Plaintiff: Well, if the Court please, my intention and purpose of introducing this testimony is for this purpose : the burden, as I understand the law, is upon the defendant in this case to establish the market value of this land on appeal from the decision of the Commissioners, and I am only introducing this testimony from him on cross-examination for the purpose of rebutting the statement in his petition filed in this court that the value of the land is $6,000. I am not trying to establish the market value by him.
“The,Court: I am going to sustain the obj ection.
“Mr. King: Note our exception.”

As we have stated, the sole issue was the value of the property. Plaintiff, however, was not trying to establish the value of the property by the amount it had been assessed by the taxing authorities. It was sought to show that the property was of less value than claimed by defendant by a written admission of the defendant. It is fairly to be presumed that the owner of property knows the value thereof. Being an admission, defendant would have had the right to make an explanation with reference thereto. If the testimony had been admitted and the explanation made, there might be a basis for the appraisal of the weight of the testimony.

We think the record shows that the court refused to give consideration to the testimony as to what defendant had rendered the very property in question for. Also, that it may reasonably be inferred that he had rendered it for $290. This rendition was a comparatively short time before plaintiff sought to condemn the property. The evidence seemed to indicate there was no great fluctuation in value as to the property in question. The statement of counsel as to the purpose of offering same may have lacked some in clarity; but, we think, it is fairly inferable from what was said that it was offered on the issue of the value of the property.

It is true that there is some confusion in the decisions as to the admissibility of this testimony, but the overwhelming weight of "authority is that same is admissible. Fort Worth & R. G. R. Co. v. Chisolm, Tex.Civ.App., 146 S.W. 988; State v. Doom, Tex.Civ.App., 278 S.W. 255;. Fort Worth & D. S. P. R. Co. v. Gilmore, Tex.Civ.App., 13 S.W.2d 416; Dickens County v. Dobbins, Tex.Civ.App., 95 S.W.2d 153; Boyer & Lucas v. St. Louis, S. F. & T. Ry. Co., 97 Tex. 107, 76 S.W. 441; Aue v. State, Tex.Civ.App., 77 S.W.2d 606; Burton Lbr. Corp. v. City of Houston, 45 Tex.Civ.App. 363, 101 S.W. 822; Hengy v. Missouri, K. & T. R. Co., Tex.Civ.App., 109 S.W. 402; Bryan Press Co. v. Houston & T. C. R. Co., Tex.Civ.App., 110 S.W. 99; Missouri, K. & T. R. Co. v. Mitchell, Tex.Civ.App., 166 S.W. 126; International & G. N. R. Co. v. Goswick, 98 Tex. 477, 85 S.W. 785.

As has been pointed out, the testimony as to value was conflicting; numerically the preponderance was in favor of the plaintiff. Any slight circumstance might have carried conviction to the trier of the facts. We think the assignment presents reversible error.

It is ordered that the case be reversed and remanded.


author: MURRAY, Justice.

text:
    JACKSON v. DAVIS.
    No. 10861.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1941.
    Roy Jackson, pro se.
    T. M. Cox, of Beeville, for appellee.
   MURRAY, Justice.

Neither appellant nor appellee has filed briefs herein, as required by Rule 29, Courts of Civil Appeals, 142 S.W. xii.

Appellee has filed a motion to dismiss the cause for want of prosecution. The motion will be granted and the cause dismissed for want of prosecution. Rule 39 for Courts of Civil Appeals, 142 S.W. xiii.

Dismissed.


author: WILLIAMS, Justice.

text:
    McGREDE v. REMBERT NAT. BANK et al.
    No. 5673.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1941.
    Rehearing Denied Feb. 6, 1941.

      Hurst, Leak & Burke, of Longview, for appellant.
    Lacy & Price and Taylor & Storey, all of Longview, for appellees.
   WILLIAMS, Justice.

Appellant, Mrs. Gladys McGrede, plaintiff below, claims that two days prior to the death of J. G. McGréde he gave her the contents of his safety deposit lock box in the Rembert National Bank of Longview. He as such lessee was furnished a key to same. The bank retained the pass or master key, the joint use of which with the one furnished lessee was necessary to unlock and enter the box. It is without dispute that the bank under its rules would not permit a person other than the lessee to open or unlock the box without a written authorization to the bank from the lessee. It is further without dispute that deceased was familiar with this requirement or rule.

In support of her claim of a symbolic or constructive gift, causa mortis, she alleged: “That on June 28, 1937, the said J. G. Mc-Grede delivered to plaintiff the keys to said box by handing his purse which contained said keys to John Sly and at said time instructed him to deliver same to plaintiff, and further stated at said time that he (deceased) was giving to plaintiff the contents * * * that said keys and purse were thereafter delivered by the said Sly to plaintiff and that she accepted and received said keys from said J. G. McGrede in the manner as alleged as a gift of the keys and the contents of said box.”

Asserting title and right of possession, ■she sued the bank. Its position in this litigation is that of a stakeholder. Appellees, the executors of the estate of J. G. Mc-Grede, being three of his children, intervened and answered with a general demurrer and denial. They further pleaded that on date of the purported gift deceased was up in years, then suffering with deadly bodily ailments, and of unsound mind. They further detailed acts and conduct of appellant which, stripped of logomachy, charged appellant with fraud from the inception of her association with deceased, covering a period from 1932 until his death.

Deceased, a man of considerable means- and possessing valuable oil-producing properties, after the death of his first wife, married plaintiff in March, 1932. He was then a man with grown children and grandchildren- — she a young woman. This marriage, after one temporary separation, finally terminated with a divorce decree entered October 14, 1932. At some date not shown, subsequent to the divorce decree and prior to 1936, plaintiff and deceased began to associate again, which continued until his "death. She acted as his housekeeper and chauffeur, and to some extent assisted him in looking after his property. Deceased paid her $100 per month for this service. After they resumed their association as above indicated, deceased gave her one or two automobiles, a residence in Longview, an annuity insurance policy between the values of $2,000 and $3,000 at the time of his death, and either gave or advanced to her other sums of money besides that for salary. In December, 1936, deceased executed a will, duly probated, in which he willed all his property to his grandchildren, having theretofore settled with his children in a partition agreement.

For two or three years prior to his death, deceased suffered from chronic Bright’s disease, “having a combination of cardiovascular condition and cardio-renal of heart and kidneys.” During this period he had been treated by medical doctors, and also by Dr. Shaw, a chiropractor, in the latter’s office in Longview. Early on the morning of June 28, 1937, the date of the purported gift, deceased was driven by John Sly, his servant for many years, from his temporary home at Cason, Texas, to Dr. Shaw’s office for treatment. After receiving treatment by Dr. Kennedy, a chiropractor in the office, Sly, assisted by Mrs. Shaw and appellant, removed deceased that afternoon to a tourist home, and thence to a hospital where he died on July 1, 1937. From the ■description of deceased’s weakened condition and suffering, and from the attributed statements made by deceased while in Shaw’s office, deceased was conscious of his approaching death.

■ Mrs. Shaw testified that while she, Sly, and deceased were present in Dr. Shaw’s office, “Mr. McGrede took his pocketbook out of his purse, — I mean out of his pocket —and he felt in there to see if there was a key, and he handed it to John, he said: ‘John, take this pocketbook and this bank key to Gladys and give it to her’; then he turned around to me and he said, ‘She will have enough -to take care of her the rest of her life.’ ” This witness further testified that the deceased was calling for plaintiff and word was sent to her to come to the hospital. According to plaintiff’s testimony, she later arrived at Dr. Shaw’s office where she met Sly in an outer room and he then handed to her the deceased’s purse containing the key to his lock box. Dr. Kennedy testified that he heard deceased ask her (Gladys) later if she had the pocketbook, if John gave her the pocketbook, and she replied, “Yes, I have it.”

It is to be observed that plaintiff both by her pleadings and above testimony, grounded the gift to her by the alleged act of deceased delivering the purse and key to Sly with instructions to give to plaintiff, coupled with the alleged statement, “She will have enough to take care of her the rest of her life.” She had possession of the key at the trial, and claimed to have received same at the time and in the manner above stated. Other evidence is to the effect that she had possession of the key on several occasions at her home prior to deceased’s death. Plaintiff refused to permit the box to be opened, and this record does not disclose the character, value or extent of its contents, other than she alleged its value to be not less than $5,000. Other witnesses for plaintiff testified to alleged statements of deceased that he had provided for Gladys; that he was going to provide for her; that he intended to provide for her; that his children had plenty and he had, or was going to make a will and leave his estate to his grandchildren, except the contents of his lock box; that “I am going to leave her the keys and the box”; that his attorneys had advised him to do this, “so there could be no contest.” Evidence to be discussed later herein- controverted above alleged statements. Sly denied that he gave the purse or keys to plaintiff. He denied that deceased instructed him to deliver same to plaintiff. Sly testified that this purse was in deceased’s clothes in the chiropractor’s office after he had undressed deceased preparatory to the treatment on June 28, 1937. The jury answered “No” to issue No. 3 reading: “Do you find from a preponderance of the evidence that J. G. McGrede instructed John Sly to deliver the pocketbook and keys to Gladys McGrede ?”

Likewise the jury answered “No” to issue No. 4 reading: “Do you find from a preponderance of the evidence that J. G. Mc-Grede did at' the time he delivered his pocketbook and keys to John Sly (if you have so found) thereby give to Mrs. Gladys McGrede the contents of the lock box in the Rembert National Bank?”

The jury found that deceased was not of unsound mind: Upon above findings and others not necessary to detail, the court denied plaintiff .relief prayed for, and awarded appellees title.

Appellees, in support of their claim that the gift had not been made and that she-waá making a fictitious claim, introduced in evidence the cross-action of deceased in the divorce suit wherein he had alleged that upon their first.separation he had paid her certain sums of money in full settlement of any property rights; that she had boasted of the large sum of money she expected to obtain from deceased; had admitted to him her association with other men while married to him; had complained that he was too old for her, and had married him with a fixed purpose of getting his money. Love letters written by her to another man in April, 1932, were introduced. A great mass of testimony dealt with the divorce controversy; her association with deceased after the divorce; protest of his children; his gifts to her of a home, automobiles, life insurance and money; her suit for a money judgment in the divorce action; her possession of his keys to the Post Office and to the lock box in question; her purported influence over him; and his physical condition, and purported senility. His will which purports to bequeath to his grandchildren all his property, and his reasons for executing same as testified to by Angus Wynne, his attorney, were placed in evidence.

Plaintiff objected to. introduction of the will; the alleged statement made to Wynne in regard to its preparation and execution; the cross-action of deceased in the divorce action; and the fact that a divorce was granted. And under her propositions 1 to 7, inclusive, and No. 9, asserts that the issue being whether deceased during his lifetime gave to plaintiff the contents of the box, this constituted no defense to her suit; ir-* relevant and immaterial; that the contents of the will and deceased’s statements to Wynne were hearsay and ex parte and not* admissible in the present suit; highly prejudicial and inflammatory.

This action of the court is not thought to be reversible error. Witnesses for plaintiff testified to statements of, deceased made to them respectively in regard to his intention, his will and reasons ■ for making same. These were substantially , to the same effect as detailed by Wynne. The court admitted deceased’s cross-action in the divorce action after Wynne, who, had represented deceased in that action, testified that the statements therein contained had been riiade to him by deceased , at the time, and there reduced to writing. The contents of the divorce decree were not admitted in evidence. It is to be observed that plaintiff predicates her claim upon alleged oral declarations of deceased. “Where it is attempted to establish a gift from the husband to the wife, by evidence of the husband’s declarations alone, the courts should exercise great caution in not excluding from the consideration of the jury any admissible evidence which would tend, though in ever so slight a degree, to counteract the evidence of the husband’s declarations,” such a gift causa mortis being a donation made without the safeguards cast by the law around the execution of wills. Barziza v. Graves, 25 Tex. 322. See also Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946, 950; 24 Am.Jur. p. 733; 28 C. J. p. 681, Sec. 86; Szabo v. Speckman, 73 Fla. 374, 74 So. 411, 414, L.R.A.1917D, 359; Begovich v. Kruljac, 38 Wyo. 365, 267 P. 426, 60 A.L.R. 1046. “Evidence, whether direct or circumstantial, is competent when introduced for the purpose of either sustaining or defeating a gift.” 12 R.C.L. 970. Under above-stated rules, this evidence objected to was not immaterial and irrelevant.

Over objections of plaintiff, attorney Wynne, Miss Armstrong, his private secretary, .and attorney .Wade, associated in the same law firm, were permitted to testify to alleged statements made by plaintiff to each of them after deceased’s death. In her talk with Wade and Miss Armstrong in the reception room of Wynne’s law office, at a time when he was not present, plaintiff’s alleged statements are to the effect that she was satisfied with the terms of the will, but if Bob McGrede contested it she was going to see if she could get something, too; inquired about the value of the annuity life insurance policy, and complained about the status of the title to the residence. Plaintiff testified that when she talked with Miss Armstrong it was a casual conversation, as one woman to another. She also claimed to have gone to the office with view of seeing Wynne to employ him. In the alleged several conversations she had with Wynne her statements w.ere to the same effect, and, in addition, that she wanted Wynne to see the children and get them to finish paying out the insurance policy; inquired if she would get a deed to the residence in Cason, Tex'as, which deceased had promised her; that she thought deceased had indorsed over to her some bonds in the lock box, and if so, inquired if she would get them, and if an inventory would be made of the contents; that she had the keys at her home and would bring them over when they got ready to go into the box. It is obvious .that this testimony was material, not as to what plaintiff claimed, but as to what she did not claim at the time. Plaintiff denied making any of the statements attributed toiler. Upon objections being urged that above statements were privileged communications between an attorney and client and the same inhibition applied to alleged statements made to the private secretary and the associate attorney, the court heard testimony out of the hearing of the jury bearing upon above alleged relationship.

Upon this voir dire hearing’,' Wynne admitted that deceased in the presence of plaintiff had requested him and he had promised to look after plaintiff’s affairs. It is her testimony that she went to Wynne’s office to employ him and that what statements she might have made were with that purpose in view. She admits that Wynne promptly informed her that he could not represent her, and claims that she talked with Wynne only one time, and that, when he was on his way to the golf links. When asked when was the next time she talked to Wynne, she replied, “I don’t remember” ; and how many conversations she had with Wynne, replied, “That is the only one I recall right now.” It is Wynne’s testimony that he informed her promptly that he represented the estate and would fight Bob, her, or any one else “from hell to breakfast” if they tried to upset what deceased started out to do; that she talked with him a number of times in regard to the property items above mentioned. Without further details, they contradicted each other as to where she first talked with Wynne and the number of times. It is not clear what statements were made, if any, before Wynne informed her that he could not represent her, or what part of the alleged statements she made in subsequent talks. Comnymications made to an attorney after being informed that no employment would or could be accepted are not privileged. Farley v. Peebles, 50 Neb. 723, 70 N.W. 231; 28 R.C.L. p. 556; 5 A.L.R. 729; Plano Mfg. Co. v. Frawley, 68 Wis. 577, 32 N.W. 768, 770; Wigmore, Evidence, 2304. The burden of proof to establish the existence of the privilege rested upon plaintiff who claimed it. Phelps Dodge Corp. v. Guerrero, 9 Cir., 273 F. 415. The question whether the testimony was privileged was a question for the trial court, and upon conflicting evidence the decision of the trial court must be deemed conclusive. Harris v. Daugherty, 74 Tex. 1, 11 S.W. 921, 15 Am.St.Rep. 812; Phelps Dodge Corp. v. Guerrero, supra; 70 C.J. p. 460; Dwelly v. McReynolds, 6 Cal.2d 128, 56 P.2d 1232. In view of the conclusions just stated, we pretermit a discussion of appellees’ further claim that plaintiff upon cross-examination of these witnesses brought out the same matters and thereby waived her objection that it was privileged.

The jury’s finding to. question No. 3 was determinate of the disposition of this cause. For this reason, there is no need to discuss the court’s refusal to give the special instruction relating to special issue No. 4. No bill of exception appears in support of the matter complained of in the 12th proposition. The other propositions advanced but not herein discussed have been carefully considered and are respectfully overruled.

Appellees in a counter proposition assert “There being no written authorization accompanying the purported gift, 1 the purported gift to her was incomplete in that she did not have complete dominion over the contents thereof” and appellees were entitled to judgment as a matter of law. Dodson v. Matthews, 22 Tenn.App. 49, 117 S.W.2d 969, and McAdoo v. Dickson, 23 Tenn.App. 74, 126 S.W.2d 393, are cited by litigants in support of their respective contentions. In view of the jury’s findings, we deem it unnecessary to discuss this counter proposition other than to state that the law applicable to gifts causa mortis and to the question here raised is fully discussed in 24 Am.Jur. under Gifts, Secs. 25-28, incl.

Counsel for appellant is to be complimented for the able and exhaustive brief in the manner and form so presented. After careful consideration of this record it is not thought that any of the matters presented would warrant a reversal of the judgment entered.

The judgment is affirmed.


text:
    KOUDSI v. MATHIWOS et al.
    No. 4003.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.
    Rehearing Denied Jan. 23, 1941.
    David E. Hume, of Eagle Pass (G. C. Jackson, of Crystal City, on the brief), for appellant.
    Van Haile McFarland, of Eagle Pass, for appellees.
   PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of Maverick County that plaintiff, G. A. Koudsi, as against defendants, P. Mathiwos and Anita and Pete Camarinos, take nothing.' From this judgment Koudsi duly perfected this appeal.

The respective parties will be designated as they were in the trial court.

Plaintiff, on the 26th day of October, 1937, filed his original petition wherein he alleged that he was the owner of two certain vendor’s lien notes, one in the sum of $500 and the other in the sum of $400; both notes were secured by a vendor’s lien on property in Maverick County, described in the petition; each note payable to Emilio Kifuri, each dated August 2, 1930; the $500 note alleged to be due on or before three years after its date, and the $400 note on or before four years; each note recited that it was given in' part payment of land. Further, plaintiff alleged that he was the owner of the notes and the liens securing same by assignment dated August 16, 1936; judgment for the amount of the notes, with interest and attorney’s fees, with a foreclosure of the vendor’s lien was sought.

Whether the defendants Anita and Pete Camarinos filed answer does not appear from the transcript, or whether they were ever served with citation.

Defendant Mathiwos filed answer on the 28th day of March, 1939. It consisted of a general exception, general denial, and special pleas of limitation and offset. In the plea of limitation it was set up that plaintiff’s suit was filed on the 26th day of October, 1937; that no process was requested by plaintiff and no process was issued until on or about the 16th day of March, 1939, and that suit was therefore not commenced until said last named date. Articles 5520 and 5527 of the Revised Statutes were invoked. In substance, the plea of offset was that plaintiff was not the real beneficial owner of the notes, but was prosecuting the suit for one Emilio Kifuri, his assignor, and by agreement defendant was'entitled to offset a certain judgment against same; or, in any event, plaintiff took the notes from Kifuri after maturity with notice of defendant’s right to offset the judgment; that a $1,200 judgment had been obtained against Emilio Kifuri and A. Kifuri; that Kifuri induced defendant to sign a supersedeas bond for appeal, agreeing that the notes should indemnify defendant against any liability on the su-persedeas bond; that with this agreement he, as surety, signed said super-sedeas bond; that the judgment on appeal was adverse to the Kifuris, and judgment was entered on the bond against the Kifuris and defendant as their surety; that thereafter, at the special instance and request of the Kifuris defendant purchased this judgment and had same assigned to him; that before he so purchased the judgment the agreement was that said notes should be his indemnity for the amount paid for the judgment.

Plaintiff to this answer filed a supplemental petition wherein he set up, in substance, that he filed his petition with the bona fide intention that process promptly issue thereon; that with the filing of the petition he deposited ten dollars in cash with the clerk; that the term following the filing of his petition convened on March 28, 1938; that he believed that all defendants had been cited until March 18, 1939, when he was informed that no return upon said citation could be located. These allegations are coupled with the allegation that one Mike Chorgas was the agent of defendants, and that plaintiff’s attorney went to Chorgas and pointed out that it would be a saving in cost if defendants would file answer and appearance; that Chorgas assured him that defendants would file answer. There is an averment that from October, 1938, to March, 1939, these representations were made from time to time and relied upon; there is a distinct averment that plaintiff did not know the citation had not been issued and served until March 18, 1939. These allegations appear in the same paragraph of the supplemental petition. The supplemental petition" admits the allegation of defendant as to the judgment against the Kifuris, and that said judgment is still unpaid and subsisting, but denies all other allegations with reference thereto.

The trial was to a jury. Special issues were submitted as follows:

“Special Issue No. 1: From a preponderance of the evidence, do you find that on or subsequent to October 26, 1937, and prior to August 3rd, 1938, Mike Chorgas was authorized by the defendant Pablo Mathiwos, to act for him in relation to the matters in controversy in this suit ?”
“Special Issue No. 2: From a preponderance of the evidence, do you find that, subsequent to October 26, 1937, and prior to August 3, 1939, Mike Chorgas acted for Pablo Mathiwos and represented, or stated to D. E. Hume, attorney for the plaintiff, Geo. A. Koudsi, that the said Pablo Mathiwos would file, or cause to be filed a waiver of the issuance and service of citation in this suit on him, the said Pablo Mathiwos ?”
“Special Issue No. 3: From a preponderance of the evidence, do you find that the plaintiff’s attorney, D. E. Hume, was induced to refrain from having citation issued and did refrain from having citation issued and served in this suit on Pablo Mathiwos subsequent to October 26, 1937, and prior to August 3, 1938, by the representation, if any, of Mike Chorgas that the defendant, Pablo Mathiwos, would waive the issuance and service of citation upon him in this suit?”
“Special Issue No. 4: From a preponderance of the evidence, do you find that the plaintiff, Geo. A. Koudsi, was, on October 26, 1937, the real and beneficial owner of the two promissory notes involved in this suit?”

Issues numbers 1 to 3, inclusive, were found in the affirmative, and number 4 in the negative.

In the record 'appears no exception to the court’s charge by either party, and request for additional issues does not appear to have been made by either party. Each party moved for judgment on the verdict, and the motion of defendant was granted.

Unless the notes were either barred by limitation or extinguished by the offset pleaded by defendant, plaintiff was entitled to recover.

Lack of beneficial ownership was not a defense. Legal ownership was clearly vested in plaintiff and this was sufficient. Johnson v. Mitchell, 50 Tex. 212, 32 Am.Rep. 602; Jones v. Butler, Tex.Civ.App., 42 S.W. 367; Edwards v. Hatch, Tex.Civ.App., 106 S.W.2d 741.

Issues numbers 1 to 3 are not a clearcut submission of the issue of limitation. As we construe that, the issue of estoppel on the part of defendant to rely on the defense of limitation is submitted. This statement may be too broad, as some of the evidence of an avoidance of the requirement of the statute for the prosecution of the suit within four years may be submitted by special issue No. 3.

This suit was filed within four years from the maturity of the notes. The question, then, is, so far as limitation is concerned, Was there a prosecution thereof within the four-year period? Citation did not issue from October 26, 1937, to March 16, 1939. When citation issued, more than four years had elapsed from the maturity date of the note last due.

If plaintiff causes the suppression of citation after the filing of his suit, limitation is not interrupted until citation is issued. Austin, Banking Commissioner, V. Proctor, Tex.Civ.App., 291 S.W. 702; Meyer v. Pecos Mercantile Co., Tex.Civ.App., 47 S.W.2d 435.

On the issue of suppression of the citation the evidence conflicts. Plaintiff and his counsel each denied instructing the clerk not to issue the citation. The -D'is'-trict Clerk testified that he -did'not'issue the citation because he had been instructed by either Mr. Hume, counsel for plaintiff, or Mr. Koudsi, not to issue same. The issue was not submitted to the jury. However, from the statement of facts it indisputably appears that a short time after the filing of the suit plaintiff had notice that citation had not issued. While one may rely 'on the clerk to issue process, but if he have notice that same has not issued, it is then his duty to use diligence and see that process is issued and served. First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16, 18.

In this case this proposition is quoted with approval: “It is the settled law of this state that the mere filing of the petition in a suit of this nature does not toll the statute of limitations. There must be a bona fide intention also that process be issued and served and due diligence exercised that such process issue and be served.” A long list of authorities is cited in support of the quoted proposition.

Nearly a year and a half elapsed from the filing of the suit until the issuance of the citation. There is no evidence that during this time defendants were out of Maverick County. It might be, as a matter of law, in the absence of any excuse, that plaintiff was guilty of negligence in the prosecution of his suit. Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565.

However, as has been before stated, the three issues answered in favor of plaintiff have perhaps a bearing on the issue of negligence as well as estoppel.

If the defendant, through his authorized agent, Chorgas, represented to plaintiff that defendant would waive the issuance of citation, and this was relied upon by plaintiff, it would operate both as an estoppel and negative negligence. One cannot rely, as a defense, on the failure of another to prosecute his suit, where his own conduct and representation is the assigned cause of such failure. Bering Mfg. Co. v. Carter & Bro., Tex.Com.App., 272 S.W. 1105.

We do not believe the trial court rendered judgment on the theory that plaintiff’s cause was barred by limitation. In our opinion, the judgment was based on the theory of offset. In other words, that plaintiff’s assignor was indebted to defendant in a sum equal to or greater than plaintiff’s claim.

Plaintiff was the assignee of the claim sued on. The finding of the jury .was that he was ■ not the beneficial owner thereof. If he was not the beneficial owner thereof, his assignor was the beneficial owner. We think the evidence is ample to sustain the finding that plaintiff was not the beneficial owner of the notes. As has been said, his legal title was sufficient to maintain an action thereon. However, if plaintiff was not the beneficial owner of the claim, and Emilio Kifuri was the real owner, then defendant was entitled to offset the judgment. Eason v. Locherer, 42. Tex. 173; Articles 2014-2017, R.S.

Furthermore, there was some evidence that there was an agreement that the two claims should be offset. This issue was not submitted to the jury, and we think it unnecessary to decide whether it was ultimate or subsidiary, or to decide whether there was evidence sufficient to justify its submission.

If Kifuri was the beneficial holder of the notes, defendant’s rights to set-off is very clear.

The judgment of the trial court was that plaintiff take nothing as against defendants. This judgment is justified if one claim extinguished the other. If defendant’s claim was equal in amount to the claim of plaintiff, a take nothing judgment could, perhaps, be sustained, or, in any event, would do no harm to either party.

Under the undisputed facts defendant .Mathiwos acquired this claim for the sum of $460. The contract by which he acquired same was entered into on the 1st day of October, 1936. The judgment was in the sum of $1,200, and bore interest at the rate of six per cent per annum from the 6th day of September, 1933.

It will be helpful to determine the exact rights acquired by defendant against the Kifuris by virtue of the premises. Most certainly he was entitled to indemnity. The question is,' Was he entitled to enforce the judgment for an amount in excess ■of an amount sufficient to indemnify him?

In the case of Beville v. Boyd, 16 Tex.Civ.App. 491, 41 S.W. 670, 671, 42 S.W. 318 (reversed by the Supreme Court, 91 Tex. 439, 44 S.W. 287), it was said: “Of course, equity would not allow the surety to speculate off his principal by taking up the note at a discount, and then recover the full amount.” This was said arguendo, and had no special and direct bearing on the disposition of the case.

In Stearns on Suretyship, 3rd Ed., § 283, this quotation is made from the case of Matthews v. Hall’s Adm’r, 21 W.Va. 510: “If the surety discharges the debt of his principal in whole or in part for any sum less than the full amount he so discharges, he can, in 'the absence of an express contract, recover from his principal only the amount actually paid by him. The implied contract in such case is that the surety shall Be indemnified only, and he will not be allowed to speculate out of his principal.”

Brandt asserts the same proposition in almost the identical language quoted above. Brandt, Suretyship & Guaranty, Vol. 1, 3rd Ed., § 233.

In the case of Edmonds v. Sheahan, 47 Tex. 443, it was held, as between co-sureties, the amount that plaintiffs were entitled to recover of their co-surety was regulated by what they actually paid and not by the amount of the judgment discharged.

There are authorities holding'that a surety may purchase the obligation of his principal for less than its face and enforce same to its full extent. The better rule seems to us to be that such surety is entitled to indemnity only.

It follows that the judgment of the trial court should be reversed and here rendered, so that plaintiff recover on the notes and for a foreclosure of the lien, with interest and attorney’s fees, less $460, same to be credited on the obligation to plaintiff as of October 1, 1936.


author: JOHNSON, Chief Justice.

text:
    WILLIAMS v. CASS COUNTY.
    No. 5689.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 29, 1941.
    Rehearing Denied Feb. 13, 1941.

      J. H. Beavers & Son, of Longview, and A. C. Cooke, of Seagraves, for appellant.
    Newland, Cornett & Whitworth and Parks E. McMichael, all of Linden, for appellee.
   JOHNSON, Chief Justice.

Mrs. lone Williams was the duly-elected, qualified and acting County Treasurer of Cass County during the years 1935-36-37-38. Her successor, Miss Ruth Olive, qualified on January 2, 1939. At that time there was on deposit in the Atlanta National Bank, the county depository, to the account of “lone Williams, Treasurer, Cass County, General Fund” the sum of $2Í7,526.08. On January 3, 1939, Mrs. Williams transferred to her successor all the funds on deposit in her name as County Treasurer, except $4,338 which she retained in the account above named. Mrs. Williams claimed that said $4,338 (less $58 admittedly an error in calculation) constituted funds belonging to her personally; that same was the aggregate of commissions which she had lawfully earned as County Treasurer in addition to the amounts received by her monthly under orders of the Commissioners’ Court during the four years she held office. Her contention in substance was that the several orders of the Commissioners’ Court fixing the Treasurer’s compensation during the four years she held office were void; that since there were no valid orders fixing her compensation, she was entitled to receive the statutory maximum of $2,000 per year, and that she had in fact earned said amount of commissions during each of the four years she held office, totaling $8,000; that the monthly amounts actually paid her under said alleged void orders was $4,080; that she had personally spent $360 for postage in transacting the county’s business through the office during- the years 1935-36-37, which postage should have been paid by the county, making a balance of $4,280 due her, •same being retained by her in said account. At the time Mrs. Williams made the transfer to her successor, she notified the bank that she claimed the amount retained as belonging to her, and not to turn it over to the county, otherwise she would hold the bank liable to her for its payment. The bank refused to release said $4,448 so retained in said account until the conflicting claims thereto were settled. Whereupon Cass County filed this suit against Mrs. lone Williams and the Atlanta National Bank, claiming that the County was in truth and in fact the lawful owner of and entitled to receive said $4,338, and prayed for judgment against the defendants jointly and severally for said amount; and the County asked judgment against the bank for the further sum of $433.80 claimed as penalties due under the provisions of R.C. S.192S, Articles 2SS2 and 2553, Vernon’s Ann.Civ.St. arts. 2552, 2553, for failure of the bank as County Depository to name some place and person in Linden, the county seat of Cass County, where and by whom county funds would be received and checks cashed. The defendant Mrs. lone Williams answered and denied generally the allegations of plaintiffs petition. She specially denied that said funds, or any part thereof, belonged to the county. By way of counterclaim, she affirmatively alleged the facts under which she claimed the funds belonged to her, such claim being in substance as above set out. The defendant Atlanta National Bank answered in the nature of a bill of interpleader against the county and Mrs. lone Williams, asking that, upon the court’s determination of said conflicting claims to said funds, the bank be ordered to pay same to the rightful owner. Plaintiff filed its first supplemental petition, which contains a general demurrer and special exceptions to the answer and counterclaim of the defendant Mrs. lone Williams ; and specially pleaded the two years statute of limitation, R.C.S. Article 5526. Plaintiff also filed a general demurrer and special exceptions to the answer of the bank. Trial of the cause to the court without a jury resulted in judgment for the county against the bank for the amount of said account, and denied the claim of Mrs. lone Williams, and further awarded recovery in favor of the county against the bank for the alleged penalties in the sum of $433.80. The defendant Mrs. lone Williams has perfected her appeal to this court. The bank did not appeal.

Appellant’s first proposition complains of the action of the trial court in sustaining appellee’s general demurrer to appellant’s answer. The judgment recites that plaintiff’s general demurrer to the “answer and counter claim” of the defendant Mrs. lone Williams was called to the attention of the court, “whereupon the court took same under advisement and carried same under consideration until the close of the case,” and after the case was closed sustained plaintiff’s general demurrer to the “answer” of said defendant. The answer of said defendant, appellant, as distinguishable from her counterclaim, contained a general denial. The judgment does not recite that the demurrer was sustained to said counterclaim, same being the plea affirmatively setting out appellant’s claim to the funds. Aside from the record, we assume that the judgment was by mistake drawn in the respect above mentioned. But reviewing the judgment as it reads, the purported decree sustaining plaintiff’s demurrer to defendant’s general denial was without authority in law. However, the error does not warrant reversal in the particular facts of this case; for it further appears from the judgment as a whole that the court heard and considered all the evidence of each party in support of their respective claims to the funds in dispute and determined the issues between them on the merits, expressly finding “that the defendant lone Williams has no ownership or right in said sum of money carried on the books of defendant the Atlanta National Bank, in the account shown in the name of ‘Mrs. lone Williams, County Treasurer, Cass County, General Fund,’ but that said sum of money and said account is the property of Cass County, Texas.” The cause having been heard and determined as if the general denial, as well as the counterclaim, remained effective in the case, the action complained of may be disregarded as harmless. . See Southwestern Life Ins. Co. v. Powers, 132 Tex. 460, 122 S.W.2d 1056, and authorities there cited.

Appellant’s, remaining propositions present the contention in substance that the several orders of the Commissioners’ Court purporting to limit the maximum amount of the Treasurer’s compensation for the years during which she held office were void; that in the absence of valid orders of said court limiting same, the maximum amount of her compensation was governed by the general provisions of the statute, R. C.S. Articles 3941, 3942, 3943, Vernon’s Ann.Civ.St. arts. 3941-3943, and Sec. 13 of Article 3912e, Vernon’s Civil Statutes, (Acts 1935, 44th Leg., Chap. 465, 2d Called Session, p. 1769, Sec. 13, effective January 1, 1936), by reason of which she was entitled to receive $2,000 for each of said years. *

The pertinent parts of the orders of the Commissioners’ Court of Cass County purporting to fix the compensation of the Treasurer for the years in question, and attacked by appellant, read as follows:

Jan. 2, 1933: “It is ordered by the Court that the salary of Miss Hattie Duncan, County Treasurer, be set at the sum of $70 per month for the year 1933, she to furnish own postage, providing the -amount allowed the County Treasurer does not exceed commissions allowed by Constitution and law.”

Nov. 13, 1933: “It is the order of the court that the commissions of Miss Hattie Duncan, County Treasurer, be calculated at such a rate that she shall be paid a commission that shall amount to $70 per month.”

Feb. 11, 1935: “It is the order of the-Court that the ex officio salaries of the' different county officials be as follows: * * * Mrs. lone Williams, County Treasurer, $70. Said Treasurer to pay her' own postage; this to be salary of said County Treasurer of Cass County providing the amount allowed the County Treasurer" does not exceed commissions allowed ’ by Constitution and laws governing said salary.”

Feb. 10, 1936: “It is the order of the Court that the salary of Mrs. lone Williams, County Treasurer, Cass County, be and it is hereby set at $85 per month provided said amount does not exceed commissions allowed by law and under the Constitution.”

Nov. 1, 1937: “It is the order of the Court that the salary of Mrs. lone Williams, County Treasurer, Cass County, be and it is hereby set at $85 per month provided said amount does not exceed the commissions allowed by law and under the Constitution.”

Jan. 10, 1938: “Orders setting salaries of county officials * * * lone Williams, County Treasurer, $1200 to be paid in equal monthly payments each month.”

It is agreed in substance that the amount of funds received and disbursed by the Treasurer of Cass County for each of the four years in question would, in the absence of a valid order of the Commissioners’ Court fixing same at a smaller sum, entitle appellant to receive the sum of $2,000 per year as provided by Articles 3941, 3942 and limited by Article 3943, and that the 1930 Federal Census shows Cass County population at 30,030.

It is the contention of appellant that the order of the Commissioners’ Court of February 11, 1935, was void for three reasons: (1) Because it was entered after she had qualified as County Treasurer and was an attempt to change the salary during her term of office; (2) because it required her to pay the postal expenses of the office-; (3) because it was an attempt to fix her compensation on a definite salary basis, namely, $70 per month. Appellant further contends that the court orders of January 2, 1933, and of November 13, 1933, were valid orders, but were limited to and had no legal effect after 1933, and for that reason could not operate as a prior court order .governing the compensation of the office for the year 1935. Therefore, it is claimed, there being no valid order limiting her com- . pensation, she was entitled to the statutory maximum of $2,000 for the year 1935; and having thus earned $2,000 for the year , 1935, the court was without authority to fix her compensation at a smaller sum for the years 1936-37-38, by reason of the pro- . visions of Article 16, Section 61 of the Constitution, Vernon’s Ann.St., adopted August 24, 1935, and the Act of the 44th Leg., Chap. . 465, 2d Called. Session, p. 1762, Sec. 13. The pertinent part of said Section 13, reads:

» “The Commissioners’ Court in counties having a population of twenty thousand (20,000) inhabitants or more, and less than .one hundred and ninety thousand (190,000) inhabitants according to the last preceding Federal Census, is hereby authorized and .it shall be its duty to fix the salaries of all the following named officers, to-wit: * * * treasurer * * *. Each of said officers shall be paid in money an annual salary in twelve (12) equal installments of not less than the total sum earned as compensation by him in his official capacity for the fiscal year 1935, and not more than the maximum amount allowed such officer under laws existing on August 24, 1935.”

The Legislature prescribed the maximum percentage of commissions (Articles 3941, 3942, limited by Article 3943) to which the County Treasurer may be entitled, and imposed the duty on the Commissioners’ Court of fixing the compensation within such limitation. In the case of Baxter v. Rusk County, 11 S.W.2d 648, 649, Judge Levy, speaking for this court, said:

“ * * * The settled rule of law is that when commissions are not fixed by order of the commissioners’ court the county treasurer is entitled, to receive the maximum fees of the statute. Bastrop County v. Hearn, 70 Tex. 563, 8 S.W. 302; Montgomery County v. Talley (Tex.Civ.App.) 169 S.W. 1141. But, as firmly concluded in the case of Bastrop County v. Hearn, supra, ‘the law prescribes no time when the court shall fix the compensation to the county treasurer for receiving and disbursing the public moneys; nor is there any inhibition to the changing of the rate of percentage after it has been once fixed.’ The limitation, however, upon the authority to change an existing order fixing the percentage of compensation, is that it is not allowable to reduce the compensation earned for past services. Montgomery County v. Talley (Tex.Civ.App.) 169 S.W. 1141.”

See 11 T.J. 597, Secs. 67, 68, 69. It is settled law that the Commissioners’ Court may not change the statutory plan of compensating the treasurer from a fee to a definite salary basis. But it is immaterial whether the court order denominates the compensation as a salary or a commission, the real character of the sums payable governs. “The controlling element in determining whether the amount to be received is upon a commission or a salary basis is whether that amount, by whatever name it may be called, is absolute and fixed, regardless of what the lawful commissions may be, or is made contingent upon earning that amount as commissions.” 11 T.J. 600, § 70.

We do not think that the court order of February 11, 1935, under which appellant was admittedly paid $70 per month during the year 1935, was an attempt to place the compensation of the treasurer on a definite salary basis, but that the order may be reasonably construed as intending to fix the compensation at the commissions allowed by law not to exceed $70 per month. It had no retroactive effect to operate upon the commissions, if any, earned by appellant from the time she qualified on January 2, 1935, to February 11, 1935, but it is not shown that she earned any commissions during that period of time. However, the order of November 13, 1933, remained in effect and governed the commissions, if any, earned by appellant to date of the entry of the order of February 11, 1935. 11 T.J. 597, § 67. We do not know of any statute vesting the Commissioners’ Court with authority to require the Treasurer to personally pay for the postage required in transacting the county’s business coming through that office. We think that provision of the order was in excess of the powers of the court and may be disregarded. It did not have the effect of voiding the remaining provisions of the order. 25 T.J. 695, § 255.

Section 61, Article 16, Constitution, adopted by election August 24, 1935, in part provides: “All district officers in the State of Texas and all county officers in counties having a population of 20,000 or more, according to the then last preceding Federal Census, shall from the first day of January and thereafter, and subsequent to the first Regular or Special Session of the Legislature after the adoption of this resolution, be compensated on a salary basis.” Acts of the 44th Leg., Chap. 465, 2d Called Session, p. 1762, Vernon’s Ann.Civ.St. art. 3912e, effective January 1, 1936, was passed pursuant to said amendment to the Constitution. Section 13 of said legislative act is applicable to Cass County, and authorizes the Commissioners’ Court to fix the salaries of the county officers, including that of the treasurer, at a sum not less than the “total sum earned as compensation by him in his official capacity for the fiscal year 1935.” The compensation earned by appellant in her official capacity during the fiscal year 1935 was the sum of $70 per month, or a total of $840. The Commissioners’ .Court fixed appellant’s salary for the year 1936 at $1,020, for 1937 at $1,020; and for 1938 at $1,200, each of which was more than the total sum earned during the year 1935.

Appellant further contends that the trial court erred in not rendering judgment on that part of her counterclaim setting up the account of $360 against the county for postage spent in connection with the office during the years 1935, 1936 and 1937. It does not appear that such claim has ever been presented to the Commissioners’ Court for allowance, which is a condition precedent to filing suit thereon. R.C.S. Article 1573; 11 T.J. 683, § 131.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    CLEMENTS v. WILLIAMS et al.
    No. 25427.
    Supreme Court of Texas.
    Feb. 12, 1941.
    Walker & Hammett, of Lampasas, and Thomas C. Ferguson, of Burnet, for plaintiff in error.
    Jerome J. Byrne, of Lampasas, for defendants in error.
   PER CURIAM.

The opinion of the Court of Civil Appeals (146 S.W.2d 215, 218).makes the following statement: “Appellant testified that there was added to the $1,236.81 principal enough interest to make the face value of the note $1,457.50, which was to be amortized by monthly payments of $27.50 each, which monthly payments included both principal and interest; and the note and contract provided that the holder could mature the entire debt upon failure to pay any monthly installment when due.”

It will be noted that the opinion says “and the note and contract provided that the holder could mature the entire debt upon failure to pay any monthly installment when due.”

We have examined the note, and we find that the Court of Civil Appeals in its opinion inadvertently used the word debt, when it intended to use the word note. The default maturity clause in the note provides that the holder at his election may “mature said note, and it shall at once become due and payable * * *.” Such default maturity clause permitted the holder of this note to mature all installments as written in it, including unearned interest. This resulted in providing for a contingency 'under which more than ten per cent, interest per annum could be collected. Such an instrument is usurious in its inception. Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 84 A.L.R. 1269, rehearing denied 120 Tex. 400, 39 S.W.2d 11, 84 A.L.R. 1269. If the default maturity clause had merely provided for the maturity of the debt, the note would not be usurious because unearned interest could not be collected, Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935.

The application for writ of error is dismissed W. O. J. — correct judgment.