author: O’QUINN, Justice.

text:
    SECURITY REALTY & DEVELOPMENT CO. et al. v. BUNCH et al.
    No. 3697.
    Court of Civil Appeals of Texas. Beaumont.
    June 27, 1940.
    Rehearing Denied Sept. 25, 1940.

      D. E. O’Fiel, of Beaumont, and D. C. Bland, of Orange, for appellants.
    W. G. Reeves and King & Rienstra, all of Beaumont, for appellees.
   O’QUINN, Justice.

As tried in the lower court, this was an action by appellant Mrs. David E. O’Fiel, claiming the property as her separate property, joined by her husband, David E. O’Fi-el, against appellees C. T. Bunch et al., for partition of the McGuire Chesson survey of 262 acres of land in Orange county; appellants claimed an undivided %th interest in the survey. Appellees answered by demurrers, general and special denial, pleas of ten year limitation, estoppel, and res adjudicata based upon the judgment rendered in Howth & O’Fiel v. Taliaferro, No. 20890 on the docket of the trial court, affirmed by this court, Howth et al. v. Taliaferro, Tex.Civ.App., 289 S.W. 119, writ refused. The issues in the cáse at bar were identical with the issues in Howth v. Taliaferro, except that Mrs. O’Fiel in the case at bar was a party by name, claiming the ⅜⅛ undivided interest as her separate property. The case at bar was tried upon the very issues submitted to the jury in Howth v. Taliaferro, which were as follows, and which were answered in this case as in Howth v. Taliaferro, that is, the jury answered question No. 1 in the negative, and question No. 2 ill the affirmative. We give'the issues:

“Issue No. 1

“Do you find from a preponderance of the evidence there was a delivery to the grantee, H. L. Gray, of the deed introduced in evidence of date the 1st day of April, 1873, wherein Jef Chaison and James Chai-son are grantors and H. L. Gray is grantee and recorded on the 28th day of December, 1921?

“Issue No. 2

“Do you find from a preponderance of the evidence that W. F. Taliaferro, during his lifetime, under whom the defendants herein claim, or those under whom he claimed had been in continuous, peaceable and adverse possession of the land in controversy, or any part thereof, cultivating, using or enjoying the same for a period of ten consecutive years prior to the institution of this suit on September 24, 1934?”

On the verdict, judgment was entered against appellant, from which she has prosecuted her appeal to this court.

We take the following statement of the case from appellees’ brief: “During the year 1922, R. W. Howth, and David E. O’Fiel, claiming to own a part of the McGuire Chesson Survey in Orange County, Texas, sued W. F. Taliaferro in Cause No. 20890, in the District Court of Jefferson. County, Texas, to partition said survey. The defendant, W. F. Taliaferro, filed an answer and cross-action in said case on December 9, 1922, suing O’Fiel and Howth for all of said Chesson Survey. On December 30th, 1922, and during the pen-dency of said suit, David E. O’Fiel took' a deed from H. L. Gray, Jr. conveying to him the one-fifth interest involved herein in the Chesson Survey and retaining' a vendor’s lien to secure the payment of a $520.00 note, a part of the purchase price. During the month of June, 1925, the plaintiffs, David E. O’Fiel and R. W. Howth, having filed a.plea of ‘not guilty’ to the cross action of W. F. Taliaferro, the case came on for trial before a duly empanelled jury to which jury only two special issues were submitted, the first being whether or not a deed signed by Jeff and James Chai-son to H. L. Gray, dated April 1, 1873, and acknowledged only by James Chaison, and recorded on December 30, 1921, was delivered to H. L. Gray, Sr., the second issue being ten years limitation, both of which issues were answered by the jury in favor of W. F. Taliaferro, and upon the verdict of the jury a judgment was rendered on July 18, 1925, in favor of W. F. Taliaferro against R. W. Howth, David E.'O’Fiel and all intervenors in said cause, for all the McGuire Chesson Survey of 262 acres, which judgment was affirmed on October 28, 1926, by this Honorable Court and reported in Vol. 289 S.W., Page 119, and Writ of Error was denied by the Supreme Court.”

For further explanation of the nature and facts of this case, we refer to the statement .made in Howth v. Taliaferro, and adopt the statement therein made as a part of the statement herein.

H. L. Gray, Jr., claimed through H. L. Gray, the grantee in the deed submitted to the jury by question No. 1, and appellant claimed only through H. L. Gray, Jr.

As explaining appellees’ title, we take the following additional statement, supplementing the statement made above, from appel-lees’ brief: “The evidence is • undisputed .that Hugh E. Gray was the only son of Caroline Chesson Gray, the first wife of H. L. Gray, Sr., and that his mother’s title descended to him. Hugh E. Gray, by deed of March 16, 1894, conveyed 248 acres in Orange County known as the McGuire Chesson Survey to Clara Landry, through whom appellees by mesne conveyances, and the judgment against David E. O’Fiel, R. W. Flowth, and others rendered in Cause No. 20890, in the District Court of Jefferson County, Texas, July 18th, 1925, now claim the land. Charles J. Chaison, a son of Jeff Chaison stated in his oral testimony that he heard a discussion among his family as to a partition of the Chesson Estate, that he never heard of his father making any claim to the McGuire Chesson Survey, that in regard to a partition of the McGuire Chesson Estate he heard a discussion as to the McGuire Chesson 262 acre Survey in Orange County, Texas; that it was ⅛. discussion with the Chaison family, that he found out from his mother in discussing it with her about the division of the estate. that the McGuire Chesson Survey in a partition of the estate of McGuire Chesson. went to Caroline Gray, the wife of H. L. Gray, Sr.”

On the jury’s answers to question-No. 1, H. L. Gray never had any title. tO' the McGuire Chesson Survey, but the title-was vested in his wife, Caroline Chaison-Gray, as her separate property, and no title-descended from H. L. Gray to his son H. L. Gray, Jr. Therefore, appellant acquired no title through H. L. Gray, Jr.

But appellant challenges the sufficiency of the evidence to support the verdict on issue No. 1. The following testimony given by Judge George C. O’Brien, on the trial of Cause No. 20890, in our judgment, supports the verdict:

“This instrument which you hand me, I have examined and it purports to be a deed by James Chesson and T. J. or Jeff Chesson to H. L. Gray, Sr. I knew H. L. Gray, Sr., in his lifetime. During his lifetime my father and the firm with which he was associated and I was associated represented him and I attended to it. * * * I think the original of this deed which I now have in my hand from him and T. J. or Jeff Chesson to H. L. Gray, Sr., was in the Clerk’s office. About 1901 or about the time of the oil boom those papers were transferred to O’Brien and- O’Brien’s office and since about 1906 it has been there with my papers. That is, I got the custody of it in 1906. All those papers were filed away there in a safe. I was employed to settle up the estate. There was some friction between Mrs. Allen and her husband and H. L. Gray and the boys, and she wanted to sell her interest and move away. The heirs would not buy it. Yes, I represented them. As their legal representative, I had copies of deeds, documents, etc., pertaining to the estate. This paper which I hold came into my possession as I have explained. * * * I am sixty-three years old. Captain Geo. W. O’Brien was my father. He was known as Captain O’ Brien. I think I became associated with him about 1890 or 1889. He died in 1909. * * * I knew of this deed which I hold in my hand of McGuire Chesson to H. L. Gray prior to the death of my father. He died in 1909. Yes, I recall about the. date it came from the clerk’s office to my father’s office; it must have been somewhere between 1901 and 1902 or 1903. My recollection is that it was during the oil boom. As to knowing it to be a fact, I know it in this way. I used to be a deputy clerk way back under L. L. Miller. He was District and County Clerk, they did not have offices separated at that time. I remember a great bundle of old deeds; some of them unrecorded. They were in the clerk’s office and I only remember that old bundle of deeds. Afterwards, I saw that bundle of deeds and recognized them in our office. Yes, they were in our office. Some were recorded and some were not. This was an unrecorded deed. Now, as for . seeing this particular deed in' the clerk’s office, I have no recollection of that. I just saw a bundle of old deeds and recognized that bundle in our office, and out of that bundle came that deed. Yes, from about 1901 to 1921 or a period of twenty years, the deed remained either in the custody of my father or myself. Yes, unrecorded in our office. No, I know nothing of the circumstances surrounding the execution of that deed. * ⅜ * To the best of my recollection Mr. H. L. Gray died in the summer of 1902; it may have been a little later, but it was during the oil boom. The date of the Lucas Gusher was the 10th of January 1901. Yes, subsequently I represented the estate of H. L. Gray, Sr. in the administration in the county court. I think possibly Mr. Bland started out to ■represent them and Mr. Duff represented Mrs. Allen and they were about to bring suit for partition and then Lawsy got me to settle things up. I don’t know why this land in controversy was not inventoried as a part of his estate; so far as I was concerned, I never thought about this land when I was administering the estate and I don’t know why it was not' inventoried. I don’t know that I represented the estate at the time the inventory was made. I think maybe Mr. Bland was representing them. I have no definite recollection just now at whaf stage I took charge of the estate. * * * This bunch of papers that was found in the clerk’s office was a bunch of miscellaneous papers and not all H.' L. Gray’s papers. I don’t recall any other instrument of H. L. Gray’s except this in that bunch from the clerk’s office, but I did not look for any other. Those papers were not in H. L. Gray’s file; they were miscellaneous papers or deeds. They were both recorded and unrecorded. A few of them were recorded, I think. * * * Yes, I remember Wilber F. Gilbert, He was County and District Clerk for many years. I 4hink he ceased to hold the office about .1882.. He went into partnership with my father. My recollection is that about 1900 or 1901 this batch of old unrecorded papers found their way to the office of myself and father. Mr. Gilbert had no connection with our office at that time. * * * ”

In our opinion, 289 S.W. 119 will give a complete analysis of Judge O’Brien’s testimony.

The following testimony supports the verdict of the jury on the issue of ten year limitation; this testimony was reproduced-from the statement of facts in Howth v. Taliaferro, supra, as being the testimony given by the witness Thompson and W. F. Taliaferro. The witness Thompson testified : “I lived consecutively in that house for five years and a little over. That I know, I can answer that question directly and conscientiously. After I moved on the McGuire Chesson land, I cleaned it up and dug a well, built a barn and fenced the land and cultivated it. I cultivated it five years straight and if my memory serves me right, I cultivated it the sixth year, after I moved on my own place that I bought from Dr. Taliaferro, but for five years I cultivated it — that I know. After I had stayed there and made five crops I moved on my own place, probably a mile east and I think I went back the -sixth year and planted some stuff. Yes, on the Chesson. I know some parties moved in there after I left there, but I can’t give you the date. My son, for quite a little bit, he was there before I moved away and I left him there until he built his'house on the’ land we bought from the doctor. Yes, my son was in the house part of the time and another man was there quite a little bit, taking care of my stuff. I did not move all my stuff right away and I got this fellow to stay there, him and his wife. His wife’s name was Ella, that is all I can tell you about it. I left my chickens and hogs until I could get fixed. Yes, I knew Spoonmore at that time. He was a single man, but he had a brother-in-law by the name of Lem Couser, he moved on there and run a shingle mill. When I took the ’balance of my stuff, he moved in the house I built. I could not say positive how long they stayed in the house, but to the best of my knowledge must have been nearly two years. * * * The enclosure I had around, well the first house I built was 14x24 and the “second was 15x20 or 24. Yes, I built that house on the McGuire Chesson Survey. The first one I built in. 1909 and that house was 14x24. It was a one-story house, a box house. It was a shingle roof. I made the shingles, they were split shingles and I made the boards; the 2-ft boards. I suppose the enclosure covered about ten or twelve acres. I never measured to see, I am just guessing at it Judge. The house faced South, that is one of them did. Yes, the first one I built faced the South. The rear end fronted the North. I don’t know how far from the house the north string of fence was, I never measured to see. I suppose. I could give you some idea, possible 40, SO or 60 feet maybe 70 feet. I don’t know. I will make my own estimate that I built the house about sixty feet from the fence. That is from the North side of the house to the north string of fence. Yes, I guess you are right, the north string of fence run east and west. I suppose that north string of fence was about seventy or eighty panel. There was about eight' feet to the panel. Yes, I think that north string of fence was fully- six hundred and forty feet long. I never measured it, because I never thought about it that way. * * * No, I don’t think I lived on the McGuire Chesson Survey over five years, that is not permanently lived there, but I had control of it for six years. Yes, I lived there five years, I am sure of that. * * * After I left that house didn’t remain vacant at all. It wasn’t vacant from the time it was built until it began to rot down, so far as I know. The sills of the house rotted out from under the whole house. * * * That house rotted down four or five years ago. * * * Yes, after ■ I left, Mr. Spoonmore and Mr. Couser moved in on the place and run a shingle mill on the west towards the Bayou. Spoonmore and this other man lived in that house between one and two years, in my opinion, I couldn’t tell you positively. After they left, there was a fellow batched there for a while, but it was after Spoonmore left.”

The witness Taliaferro testified: “I was interested with my father in the purchase of this land from King about the time the papers were drawn up. Before I went into the deal, the title was taken in his name, but I really had an interest in the Chesson all the time. My father made an investigation to the title to this land at the time it was purchased. When I purchased the land which I believed in good-faith from what I understood the facts to be, that I was getting the title of H. E. Gray to the 248 acres of land through H. E. Gray. I have since that time been holding and claiming the entire McGuire Chesson tract of land. Since that time I have been in possession. From the time I purchased this land or from the time that my father purchased it, up until the filing of this suit in 1922, there were no interruptions or any claims had to the land. When I purchased the land there were a lot of old back taxes that had not been paid. They have now been paid up through 1921. All that have accrued since I took it, all back taxes through 1921. They were paid by myself. Yes, I know Thompson who testified here. I made arrangements with him through Mr. Bunch to go on that land as my tenant. I made these arrangements through Mr. Bunch, my agent. I don’t know when Thompson actually went on the land, but he was there when we bought the land in 1910. I was up on our land somewhere in' the summer of 1910; that was the first time I say Mr. Thompson. I knew we could furnish the lumber to build a house. Yes, his house was built then. He was on there before my father under whom I am claiming held record title to the land. He was on the land there for King. He was on there for King prior to that time. He either built that house in the late winter or early spring of 1910, shortly aftet we acquired title to the land. I don’t think he built the house before we bought the land. He was in a shack before we bought the land, but shortly after we got it he built the house. The daté I purchased that land was in February 1910 or January 1910. Shortly after the date of this deed, we made arrangements with Thompson to remain on there as our tenant, and we furnished him the lumber and as soon as possible he built the house himself. Yes, that was in 1910. Yes, he did some other kind of improvements. He cleared and fenced the land and built a barn and chicken house and dug the well and improved it. After he built the house he and his family occupied it. Thompson stayed there through the flood of 1915. He was working two places. He was clearing the land that he had bought and getting that ready to move over there and his family was divided. I think he had a couple in this house and his family lived over there or vice versa, but he was working both places when the flood came in 1915. I think in August 1915. After Thompson left, we made arrangements with a little shingle mill to go over and cut cypress, a man by the name of Bill Spoonemore and Lem Couser. They paid stumpage on the cypress that they cut there at the mill. I am not sure whether they cultivated any garden or patches of ■any kind while they were there. They •stayed on the Chesson and lived in that house about two years. I remember distinctly that when they were about ready to move away that one of them remained there for awhile and helped Mr. Ashworth make posts to build that small fence around the old Thompson field. While they were operating this shingle mill, they didn’t cultivate this old field and the fence around the old field was practically gone. Well, when they were about ready to leave, Mr. Ashworth had moved to the other place below the slough on the Armstrong and wanted to cultivate this place and I paid for the posts that Spoonemore or Couser cut to build this fence and had a three wire rail fence. Yes, one of these men was occupying the house while Ashworth was preparing and building the fence. Yes, Ashworth, cultivated a portion of that. He built the fence in the first summer he was there. He was there in 1917 and I am not sure he cultivated that summer, I don’t think he did that summer. I know it was started in Bermuda grass and we let that grass grow until the fall and that fall we turned some cows and heifers in on winter grass for pasture. That was the time old man White was living there and a man by the name of Ferguson. After the shingle outfit moved ■ out, an old man by the name of White lived there. I don’t know how long, but for several months, but immediately after he moved out, two men, a man named Ferguson and another man went on there, with my permission. Ashworth cultivated that land two years. He planted peanuts there for two years, that was in the summer of 1918 and 1919. The cultivation was enclosed by this fence that he and Couser and Spoonemore built. Those crops were in 1918 and 1919. In .1920 I had them enclose the whole thing. I had those heifers and those things were increasing over there and I had gotten quite a few cattle together and they were well bred fancy cattle, and some good milch cows and I decided I either had to go in the dairy business or sell some cows. Yes, I made a mistake and went into the dairy business, I haven’t gotten out yet. I am still in it.”

We add that in Howth v. Taliaferro, we affirmed the verdict of the jury that the deed to H. L. Gray had not been delivered, and its affirmative answer to the issue submitting ten year limitation.

The evidence does not support appellant’s proposition that W. F. Taliaferro, and those claiming through him, during the limitation period “admitted and acknowledged the existence of title in other alleged co-owners of the land in controversy.” The record supports the following statement from appellees’ brief on this issue: “Dr. W. F. Taliaferro, at the time he took the quitclaim deeds from the heirs of James Chaison, was claiming the title to the entire survey by virtue of the deed from Hugh E. Gray, the only son of Caroline Gray, to whom, according to the testimony of Charles J. Chaison, the entire survey had been allotted in the division of the McGuire Chesson Estate. Dr. Tali-aferro, in the -trial of the case of O’Fiel and Howth v. Taliaferro, No. 20890, testified that he believed he had the title to the land, but not all the record title, that his father, a lawyer, advised him to perfect the record title to prevent somebody from digging up a lost deed and suing.”

The court did not err in receiving in evidence the tax receipts offered by ap-pellees showing payment of taxes by them on the land in controversy, and evidence showing that appellant had not paid any taxes on the land.

We give appellants’ seventh proposition : “The trial court erred in admitting before the jury the testimony of George C. O’Brien, W. P. Thompson and W. F. Taliaferro upon the issue of limitation, and of alleged non-delivery of deed given in another suit, wherein said parties testified but in which the plaintiff, Mrs. Violet G. O’Fiel was not a party, because, not having been a party, the plaintiff, Mrs. O’Fiel, the real party at interest in this suit, did not have the opportunity to cross examine such witnesses, nor being otherwise bound by such judgment.”

As a predicate for the admission of the testimony of Judge O’Brien, it was shown that he was physically and mentally unable to testify, and as a predicate for the admission of the testimony of the witness Thompson and Taliaferro that they were both dead. This was a sufficient predicate. City of Beaumont v. Kane, Tex.Civ.App., 33 S.W.2d 234.

As explaining appellants’ relation to this suit, we supplement the statements given above from appellants’ brief by the following additional statement:

“The note executed by David E. O’Fiel to H. L. Gray, who claimed to hold title under the alleged deed to H. L. Gray, Sr., for $520.00 as a part of the purchase price for said deed from Gray to O’Fiel, and upon which suit was brought by J. B. Yost et al to establish the indebtedness and foreclose the vendor’s lien upon the land covered by the deed from H. L. Gray to David E. O’Fiel bore the following endorsements :

“ ‘Vendor’s lien note, for value received, I hereby sell, transfer and assign to the order of Geo. C. O’Brien the within note, together with the vendor’s lien on the property securing the same, and as Indorser I guarantee the payment of the within note at maturity, or on demand, at any time after maturity, waiving demand, protest and notice of protest and notice of nonpayment thereof.

“‘H. L. Gray

“ ‘George C. O’Brien

“‘John S. Yost.’

“George C. O’Brien, by written instrument, transferred the vendor’s lien . note and lien to F. M. Yost, whose sons on December 8, 1927, brought suit against David E. O’Fiel thereon' to establish the debt against David E. O’Fiel and to foreclose the vendor’s lien. In which suit, Cause No. 29827, in the District Court of Jefferson County, Texas, David E. O’Fi'el, by his answer entered a general denial, and impleading H. L. Gray on his warranty, alleged among other things as follows: ‘That the said H. L. Gray, at and prior to December 30th, 1922, the date of his said deed to the defendant, David E. O’Fiel, was not possessed of an indefeasable title to said land but on the contrary‘that the said land and title thereto was owned and held by one W. F. Taliaferro and thereafter, to-wit: sometime about June 30th, 1925, upon a trial had in the District Court of Jefferson County, Texas, between the said W. F. Taliaferro on the one hand the said David E. O’Fiel and the others interested with him, the said W. F. Taliafer-ro recovered of the said defendant, David E. O’Fiel, the said land and premises described in the plaintiff’s said petition on file and the whole of said land; that thereby the title of the said H. L. Gray conveyed to David E. O’Fiel wholly and completely failed and the consideration moving from the said David O’Fiel to the said H. L. Gray became entitled to be refunded to the said David E. O’Fiel, that demand has been made of the said H. L. Gray by defendant, David E. O’Fiel, for the payment to him of the said sums due on said cause of action but that said H. L. Gray has wholly failed and refused and continues to fail and refuse to pay the same or any part thereof to the damage of the said David E. O’Fiel the sum of $780.00.’

“Upon a trial of said cause, judgment was rendered on September 13, 1928, in favor of J. B. and H. C. Yost against David E. O’Fiel for the debt owing on the note in the sum of $653.81, and foreclosing the lien on the one-fifth interest, and David E. O’Fiel in his cross-action recovered judgment against H. L. Gray on his warranty for the sum of $780.00 with interest. An order of sale was issued on the judgment rendered in favor of the Yost brothers, and a deed was made by the sheriff of Orange County, Texas, on February 25, 1929, to C. W. Bolton for $75.00 conveying all of the ' estate, right, title and interest which David E. O’Fiel had on December 30, 1922, or at any time afterwards in and to an undivided one-fifth interest in the McGuire Chesson Survey.

“C. W. Bolton, the fathér-in-law of David E. O’Fiel and the father of Mrs. O’Fiel, the plaintiff herein, stated in his deposition that in February, 1929, he was living with his daughter, Mrs. O’Fiel, that he went over to the sheriff’s sale with Mrs. O’Fiel, who told him of the sale and suggested that he buy in at the sale, and that he did buy the land and turned it in to the Security Realty & Development Company upon the suggestion of his daughter, Mrs. O’Fiel, that he depended on Mr. O’Fiel to transact the business for him. He refused to state what he received for the land.

“David E. O’Fiel testified he had been married to Mrs. Violet G. O’Fiel for 25 years, that said marriage relations still exist, and that he had been president of the Security Realty & Development Company from its organization until it ceased to function, that the stock of said company was owned by Mrs. O’Fiel and himself.

“David E. O’Fiel and Violet G. O’Fiel made a deed to the Security Realty & Development Company on November 28, 1925, and recorded November 30, 1925, in Orange County, Texas, conveying the McGuire Chesson Survey, after the judgment had been rendered in favor of W. F. Talia-ferro in Cause No. 20890, and before suit was filed by 'the Yost brothers against O’Fiel to establish the debt and foreclose the lien.”

On this statement, it is our conclusion that appellant Mrs. O’Fiel bore such a relation to Cause No. 20890 as to make the testimony of the witnesses, Judge O’Brien, Thompson and Taliaferro, as given in Cause No. 20890, admissible against her on the trial of the case at bar. The test of admissibility of testimony given in a former trial rests upon the identity of the subject matter, the identity of the issues, and the practical or representative identity of the parties, and the opportunity to cross-examine the witnesses on the former trial upon the same issue as that upon which the evidence is offered on the second trial. McCormick and Ray on Evidence, § 453; Texas Employers Ins. Ass’n v. Burnett, Tex.Civ.App., 77 S.W.2d 742; Traders’ & General Ins. Co. v. Baldwin, Tex.Civ.App., 50 S.W.2d 863; Wharton on Evidence, Art. 177; Wigmore on Evidence, § 1388.

On the verdict of the jury, appellant had no title under H. L. Gray to the land sued for because there was no delivery of the deed to H. L. Gray, Sr. The verdict of the jury on the issue of limitation bars all other titles through which she could claim. On these conclusions the judgment of the lower court should be affirmed.

It' is also our conclusion that the judgment in Cause No. 20890, affirmed by this court in 289 S.W. 119, constitutes res adjúdicata against appellant on all titles litigated' iti the case at bar. This conclusion also supports the judgment.

Affirmed. .


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    OLIVE-STERNENBERG LUMBER CO. v. GORDON.
    No. 3708.
    Court of Civil Appeals of Texas. Beaumont.
    July 11, 1940.
    Rehearing Denied Oct. 2, 1940.

      R.. M. Briggs, of Kountze, and Geo. E. Holland, of Beaumont, for appellant.
    James F. Parker, of Kountze, for appel-lee.
   WALKER, Chief Justice.

This was an action in trespass to try title by appellee, W. D. Gordon, against appellant, Olive-Sternenberg Lumber Company, a corporation, to recover an undivided one-fourth interest in the Lawrence and Creecy survey of 640 acres of land in Hardin County, and for damages for the value of the timber cut from the land. Appellant answered by demurrers, pleas of not guilty, •estoppel and stale demand, and by special pleas of the statutes of limitations of four, five, and twenty-five years. Judgment was for appellee on an instructed verdict for the interest in the land sued for, but against him for damages for cutting the timber, from which appellant has duly prosecuted its appeal to this court.

Appellee and appellant claim the land through W. H. Watson and W. S. Parker as common source. On the 30th day of November, 1908, Watson and Parker executed to appellee the following instrument:

■ “State of Texas, County of Hardin. Know All Men By These Presents: That we, W. H. Watson & W. S. Parker, of Hardin Co. Texas, in consideration of the professional services to be performed by W.. D. Gordon, of Beaumont, Texas, to be rendered in defending the title to the hereinafter described lands in said county, in a suit styled David L. Gallup vs. W. H. Watson, et al.,‘ pending in the U. S. Circuit Court, in & for the Eastern District' of Texas, at Beaumont, have granted, sold & conveyed, & by these presents do grant, sell & convey unto the said W. D. Gordon, his heirs'& assigns forever, .and undivided interest of 160 acres in & to the survey of 640, more or less, acres patented to Lawrence & Creecy, situated 2 miles • east of Kountze, bounded on north by G. C. & S. F. Ry. Co. East by Isai Junker 640 a. sur. South by B. B. B. & C. Sur. & H. G. King, & on west by Richard Jones 640 acre sur. & being the same land in controversy in said suit.

“The said W. D. Gordon agrees to defend the title to said land in said suit & in all other suits which may be instituted by the said David L. Gallup, his heirs & assigns, and a failure on his part shall under this conveyance * * * null and void, & upon a compliance by the said W. D. Gordon with the terms of this contract the said W. H. Watson & W. S. Parker shall & will execute to him a good and sufficient deed to said 160 acres of said land and shall account to him for all timber which shall be hereafter removed by them from said land at the market price of the same, the said W. D. Gordon agreeing to serve them as Atty. as aforesaid until the said litigation now pending by said Gallup shall have been settled, & all other litigation which may arise by or through the said Gallup, his heirs or assigns. Witness our hands this 30 day of Nov. 1908. W. H. Watson W. S. Parker”, .which was filed for record on the 12th day of November, 1909, and duly recorded on the 13th day of November, 1909, in Vol. 52, page 552 et seq., deed records of Hardin county. After receiving this instrument, appellee proceeded with diligence to discharge the duties of his professional employment. While the Gallup suit was pending on the docket of the court, Watson and Parker, through appellee as their attorney, agreed upon a settlement of the issues in controversy, whereby Watson and Parker were to receive judgment for the land. Conditioned on the consummation of this settlement, Watson and Parker agreed to sell the 640 acres of land to appellant for $7,000, but it was not shown that appellee knew that this proposition of settlement included his interest in the land. To effectuate the settlement with Gallup, appellant paid to Watson and Parker, through appellee, $1,500,’ which was delivered by ap-pellee to Gallup. After the settlement was effectuated, appellant paid $5,500, the balance of the purchase price, to Watson and Parker. On the 15th day of November, 1909, Watson and Parker conveyed the 640 acres of land to W. J. Braclcin, who on the 25th day of November, 1909, conveyed it to appellant. Final judgment was entered in the Gallup suit on the 26th day of November, 1909, awarding Watson and Parker the 640 acres of land. Appellant took title from Watson and Parker, through Braclcin, to the 640 acres of land without actual knowledge that appellee held his interest under the instrument copied above, but this instrument was in fact of record at the time it took its conveyance.

The first point presented by the appeal is the nature of the contract executed by Watson and Parker to appellee. It is our conclusion that this instrument was an absolute, present conveyance, in the nature of a deed with vendor’s lien reserved, on the consideration of-certain legal services to be performed by appellee to the grantors. The agreement on the part of Watson and Parker to convey the land at a subsequent date, when appellee had performed his legal services, was mere surplusage, and modified in no way the granting clause. There is no conflict between the granting clause and the agreement to convey the land when the legal services had been performed — that is— when the consideration had been paid. This language was a mere statement of the legal effect of the granting clause, construed in connection with the consideration as written into the face of the instrument. The instrument was executory in its nature, as is a deed with a reserved vendor’s lien, and appellee’s title was matured into a legal title by the payment of the consideration — the rendition of the legal services.

But if the instrument is not of the nature of a deed with the vendor’s lien reserved, and if the granting clause must yield to the condition binding Watson and Parker to convey the land to appellee on the performance by him’ of the legal services contemplated by the contract, then the instrument should be construed as being in the nature of a bond for title, with the consideration fully paid by appellee before appellant acquired its adverse title. By rendering the legal services, expressed as the consideration of the contract, appellee paid for his interest in the land as fully as if he had paid a cash consideration. The payment of the consideration expressed in a bond for title ripens it into an equitable title. 14 Tex.Jur. 761; Deeds, § 11. Ap-pellee’s equitable title was superior to the legal title conveyed to appellant by the common source through Brackin, and supported his action of trespass to try title against appellant. On this point Judge Brown, speaking for our Supreme Court in Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75, 76, said: “In Secrest v. Jones [21 Tex. 121] the vendor had given a bond for title to the land in question, and the purchase money had been paid. The vendor refused to convey the land, and the vendee brought an action of trespass to try title, and it was held that upon the payment of the purchase money the title became absolute in the ven-dee. There can be no question that the .equitable title to this land was in B. F. Stafford under the allegation of his petition, and he could maintain such action for the recovery of the' land as might have been maintained if he had the complete legal and equitable title. The fact that he set out the facts which constituted his cause of action does not change the character of -the suit; ■ it is as much an action for the recovery of real estate as if it had been in the form of trespass to try title.”

Against our construction of the instrument in issue, appellant contends that it conveyed to Mr. Gordon a mere equity in the land and not a present title. In support of this contention, it cites Dull v. Blum, 68 Tex. 299, 4 S.W. 489; Hazlett v. Harwood, 80 Tex. 508, 16 S.W. 310; Tayler v. Taul, 88 Tex. 665, 32 S.W. 866, 867, and Browne v. King, 111 Tex. 330, 235 S.W. 522, 523, all by the Supreme Court. These cases are not in point. Construing the first two cases, in Tayler v. Taul [88 Tex. 665, 32 S.W. 867] the Supreme Court said that the application of each of the instruments in controversy “to any particular land depended, not upon the construction of the instrument by the court, but upon some future action by the grantee under and in pursuance of the same, bringing the lands within its terms. The necessity of this future action was sufficient to render the contracts executory.” The “application of the instrument” in issue to the very land in controversy did not require “some future action” by Mr. Gordon, but by its very terms the instrument conveyed the land — this very land — to him. After giving the language of conveyance in the instrument in controversy in Tayler v. Taul, the court said, in construing it, on authority of the twb first cases cited above: “A proper 'construction of the instrument requires us to give effect to both of said words, and this, limits the agent’s rights to such of those lands as may have been by him subjected to his agency after the execution of such instrument. This brings the instrument within the principle of the two cases above cited, and determines it to be an executory contract.”

It requires no analysis to, distinguish the instrument now before us from the instrument in controversy in Tayler v. Taul. The following quotation from Browne' v. King clearly distinguishes the instrument in controversy therein from the instrument now before us [111 Tex. 330, 235 S.W. 523]: “The instrument executed by the Acebos and given Browne was not effective on delivery as a deed to one-half of the land. It conveyed no present interest. His interest was to be a future one. It was to be in the land when ‘recovered,’ and then only in consideration of the performance of his part of the contract. Except upon such performance he was to have no interest. Further action on his part was necessary— his recovery of the land for the grantors by the prosecution of a successful suit or amicable partition. There was no grant to him of an interest in the land under its existing status. The grant was an interest in the land ‘so recovered,’ revealing very plainly that his interest was to be effective only after the successful exercise of his agency. The necessity for future action on Browne’s part as the condition for the vesti-ture of any interest in his favor made the contract purely executory. Hazlett v. Harwood, 80 Tex. 508, 16 S.W. 310; Tayler v. Taul, 88 Tex. 665, 32 S.W. 866.”

In Browne v. King, Browne’s interest in the land was to vest in him only “when recovered.” Mr. Gordon was not obligated by the instrument through which he claims to recover any land. His grantors owned the land and as a fee conveyed him a one-fourth undivided interest to defend their present title; they conveyed him a present title to defend their present title.

Again, in construing the instru'ment, appellant insists that it is a mere power of attorney. That contention is denied. The instrument is a simple contract whereby Watson and Parker retained Mr. Gordon in his professional relation as a lawyer to defend their title. It did not authorize him to do and perform any act for the grantors in their name, place and stead. Under this instrument, Mr. Gordon could perform no act not inherent in the duty owed by a lawyer to his client. On this point we quote the following authorities : 33 Words & Phrases, Perm.Ed., Power of Attorney, p. 159.

(a) “A-power or letter of attorney is an instrument by which the authority of one person to act in the place and stead of another as attorney in fact is set forth. White v. Furgeson, 29 Ind.App. 144, 64 N.E. 49, 51.”

(b) “A power of attorney is an instrument by which the authority of an attorney in fact or private attorney is set forth.”

33 Words & Phrases, Perm.Ed., Power of Attorney, p. 159: “Any written instrument whereby person authorizes another to act for him is 'power of attorney,’- * *

Appellant presents the following additional points against the court’s judgment:

(1) The court erred in not submitting to the jury the issue of five years’ limitation. This contention is denied. The evidence was wholly insufficient to support a continuous, adverse possession and claim for five years, with payment of taxes.

(2) Appellee was estopped to assert his equitable title, advanced on appellant’s construction of the evidence that ap-pellee’s fee for representing Watson and Parker in the Gallup lawsuit was paid him in cash. On this point appellant advances the following proposition: “It is absurd to say that Mr. Gordon, owning a one-fourth (l/4th) interest could sell the land for cash, take his one-fourth (l/4th) of the cash and still own one-fourth (l/4th) of the land. This is what he claims to be able to do in this suit.”

That issue was not raised by the evidence. On this point Mr. Gordon testified:

“Q. Mr. Gordon, when you were representing thesq people, isn’t it a fact that when this instrument was made and when Olive-Sternenberg Lumber Company paid .the consideration, isn’t it a fact that Mr. Parker paid you over Twelve Hundred ($1200.00)- Dollars as an Attorney fee in the case? A. No. Paid me my pro rata share of the value of the timber on the land that had been sold.

“Q. How’s that? A. No. Paid me my pro rata share of the value of the timber on the land, that had been sold. I have the exact amount.

“Q, Twelve Hundred Four ($1204. — ) Dollars and something? A. Twelve Hundred Four ($1204.19) Dollars and Nineteen Cents, I think.”

■ Mr. Parker, one of Mr. Gordon’s grantors, testified:

“A. Well, as I recollect it, that was to reimburse him for services that he rendered in the case. There had been this going on. After we made the contract with Mr. Gordon, Mr. Watson went out on the land and removed some of the piling,— might have made some ties on it — and we had in that contract an agreement to account to Mr. Gordon for such timber we moved off of his undivided part of it, and that may have been part of that Twelve Hundred ($1200.00) Dollars. But anyhow, following this Olive-Sternenberg deal, I sent him the Twelve Hundred ($1200.00) Dollars.

“Q. Did you send it to him? I believe you practically said so. Did you send it to him as a fee for the services rendered? In other words, was it in payment of the services of the suit?

“Mr. James Parker: We object to that as attempting to vary the terms of the written instrument, Your Honor.

“The Court: I sustain the objection. That has already been passed on. I don’t see how that could possibly affect it.”

Mr. Watson, the other grantor, testified:

“Q. I will ask you, Mr. Watson, who employed Mr. Gordon in the case? A. I think I did. I am not sure, but I think I went to his office. I am not sure of that.

“Q. I will ask you to state whether or not Mr. Gordon was paid for the services he rendered in that case?

“Mr. James Parker: We object to that, Your Honor, for the same reason.

“The Court: I sustain the objection.”

It thus appears that Mr. Gordon testified positively that he was paid no money as an attorney’s fee; that the money paid him was for the value of timber that had been sold from the land. As we construe the statement of facts, ■ no issue was made against Mr. Gordon’s statement that the money received by him — $1,204.19—was paid for timber and not as a fee. The testimony of Watson and Parker on this point, tendered by appellant, was excluded, and appellant has brought forward no exception complaining of that ruling. Mr.Gordon’s testimony has corroboration in the fact that his fee was to be one-fourth of the land; the amount received by him, $1,204.19, does not represent one-fourth of the amount paid by appellant to Watson and Parker for the land.

(3) On our conclusion that Mr. Gordon paid for his interest in the land by rendering legal services, the following proposition from Browne v. King, supra, denies appellant's contention that appellee had nothing more than a mere equity in the land: ■ “But, at best, Browne’s right was only an equity; and if fully perfected by his entire performance of the contract could only have amounted to an equitable interest. If it be admitted that at the time of the sale by the Acebos of the legal title to Mrs. King he had done everything required of him under the contract up to that time, and that but for such sale he would have been able to recover the land, yet, if Mrs. King bought the title without notice of his equity, she would be entitled to protection as an innocent purchaser. Mrs. King had constructive notice of the contract when she purchased the legal title. But the contract of itself conferred no equity. Performance by Browne of the agreement was necessary to the creation of his equitable interest, and therefore to affect the legal title in Mrs. King’s hands with his interest it was necessary that he establish that she bought with notice of such performance. There was no proof that she had such notice; According to the record she knew nothing of Browne’s relation to the suit of the Acebos or of anything he had done in performance of his contract with them. The record of the contract gave her no such notice, and the suit itself in no way disclosed Browne’s connection with it.”

Under that proposition, appellant had constructive notice of Mr. Gordon’s contract when it took its conveyance to the 640 acres of land, and that Mr. Gordon’s interest in the land was in payment of his professional services as a lawyer. Appellant had actual notice that Mr. .Gordon was discharging the duties of his employment and that the settlement of the Gallup lawsuit constituted a full discharge by him of all duties owed by him to Watson and Parker as their lawyer. So, appellant bought with notice that Mr. Gordon had performed all the duties imposed upon him by the contract.

(4) Appellee’s title was not. subject to appellant’s plea of stale demand, nor to the statute of limitations of four years. His right to, or interest in the land, was not a mere equity, nor was he required to sue for specific performance of the promise by Watson and Parker to execute to him “a good and sufficient deed to said 160 acres of said land” when he had rendered the legal services called for by his contract with them. These propositions have direct support in Gainer v. Cotton, 49 Tex. 101, 120: “If, by the bond, any right to or interest in the land vested in Love, it was not a mere equity, which might become stale or be lost by his failure or neglect to assert it, or to demand some other character of conveyance. The purchase-price being fully paid, and the sale being absolute and unconditional, so was Love’s title. A more formal conveyance, or one which would better serve as evidence of the sale, might be desirable, and, if stipulated for, might be enforced by the appropriate tribunal, if its aid were invoked in the proper time and manner; but when made, it would merely afford more formal or satisfactory evidence of the title already vested in the purchaser, and would not confer a different character of right to that, by which he previously held.”

(5) The evidence did not raise the issue of “presumption to title” under Article 5519a, Vernon’s Ann.Civ.St. Appellant failed to render the taxes and to pay the taxes on the land in controversy for the year 1916; the suit was filed in 1939. Therefore, appellant did not pay “taxes thereon annually before becoming delinquent for as many as twenty-five years during such period,” as required by Article 5519a. On this point, on motion to correct the evidence, the court made the following fact finding: “I find that Olive Sternen-berg Lumber Company did not render or pay taxes for the years 1911 and 1916 upon the Lawrence & Creecy Survey.”

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

We have reviewed with care appellant’s motions for rehearing and for additional fact conclusions. As we understand the record, all fact conclusions requested by appellant, which have support in the record, are given in the opinion.

Appellant’s motions are overruled.


author: ' FUNDERBURK, Justice.

text:
    EDSALL et al. v. HUTCHINGS et al.
    No. 2019.
    Court of Civil Appeals of Texas. Eastland.
    June 21, 1940.
    Rehearing Denied Sept. 20, 1940.
    •John Lee Smith, of Throckmorton, and Fred T. Arnold, of Graham, for appellants.
    Marshall & King, of Graham, for appel-lees.
   ' FUNDERBURK, Justice.

Upon the marriage of Mrs. Addie B. Edsall on January 13, 1895, to R. W. Steele, there followed a partition between her and her five children of the real property belonging to the community estate of herself and her former husband, R. S. Edsall. Personal property consisting in part of a herd of cattle belonging to said community estate was not then, or thereafter, partitioned, but Mrs. Steele, nee Edsall, continued to handle said property, and on or about December 26, 1916 sold the cattle with their increase to A. B. Edsall for $6,000, evidenced by a note of the purchaser payable to Mrs. Addie B. Steele. Addie B. Steele and R. W. Steele had only one child, being Clara Steele who married T. Hutchings. R. W. Steele died intestate on January 7, 1932. Addie B. Steele died testate January 11, 1933. During the time Addie B. Steele and R. W. Steele were married to each other they acquired property consisting of a house and lot in Spring Creek, Throckmorton County, which after the death of R. W. Steele was sold and one half of the proceeds given to said Clara Hutchings. In addition to said house and lot there were rents and revenues from Mrs. Steele’s separate real property and the increase of her separate personal property. All of this personal property was handled by Mrs. Steele as if it were her separate property.

By will made September 11, 1931 and probated, without contest, on January 29, 1933, Addie B. Steele bequeathed to her daughter Clara Hutchings “for her natural life and to her natural children,” 345 acres of land “to be held in trust however for her and her children” by the executor and trustee “and subject to the further terms of this will.” Another provision of the will read as follows: “That part of my estate which I have given to my son, H. Van Edsall, my daughters, Anna Edsall Williams, Clara Hutchings, and Minnie E. Calvert, is hereby given to my executor to be held in trust for them, for their natural lives and then to their natural children until they become 21 years of age; and my executor shall hold such property free from the control of any husband or any of my said daughters and shall keep said property rented, and out of the proceeds arising from the rent thereof he shall pay my said son H. Van Edsall and my daughters [naming them, including Clara Hutch-ings] * * * during their natural life the proceeds arising from such property so given to each of them and after the death of any of my said children whose property is held in trust the same shall, continue to be held in trust by my executor and he shall pay over the proceeds arising from the rent and revenue of the property so allotted to such child, to his or her natural children, share and share alike, until such children shall arrive at the age of 21 and as soon as each of said children shall arrive at the age of 21 my executor shall pay over to them his proportionate part of his father’s or mother’s share as herein allotted * * * should my daughter, Clara Hutchings, die without issue, then her part shall pass and descend to her half brothers and sisters and subject to the trust provisions of this will.”

Said will further declared “All of the property that I now have is my separate property and consists of land and personal property that was acquired by myself and first husband, R. S. Edsall and with one or two small exceptions of community property between myself and present husband/ and in the disposition of my estate I have tried to take care of my children by both of my said husbands as well as take care of my present husband.”

A. B. Edsall was named independent executor of the estate, as well as trustee for certain of the devisees. He was given the power and right to “sell any and all of my personal property, including notes and accounts at any time and to convert the same into cash * * * to lease and rent the land left in trust for grass, grazing and agricultural purposes and to receive the proceeds therefrom * * * to make, execute and deliver an oil or gas or other mineral leases on any land left in trust to him and sign and deliver division orders and collect rents, bonuses and royalties * *

The inventory and appraisement filed by said executor about January 24, 1933 listed as the only community property of Addie B. Steelé and R. W. Steele said town lots, valued at $500. As separate property there was listed a note of A. B. Edsall payable to Addie B. Steele for $3,100 at 6 per cent interest due January 1, 1937. (This was a renewal of the $6,000 note aforesaid, less payments made thereon.)

On December 26, 1916, Addie B. Steele leased all her land to A. B. Edsall for grazing purposes for a term of five years, the consideration being $500 per year. This lease’ was renewed from time to time, the •last renewal being October 31, 1932, and-extending it to October 1, 1937. The annual rent of $500 was paid each year to-Mrs. Addie B. Steele until her death. Thereafter it was accounted for by A. B. Edsall as executor up to the termination of the lease. On January 1, 1938, A. B. Ed-sall, as trustee, leased the land to Arthur Ben Edsall for a'term of five years at 35⅜’ per acre.

On December 28, 1934, A. B. Edsall prepared a statement of receipts and disbursements showing the nature and disposition of the property which had come into his possession as executor and trustee under the will of his mother. A copy of this statement was’ furnished, to Mrs. Clara Hutchings.

This is a suit (as its nature is disclosed by plaintiff’s second amended original petition) brought by Clara Hutchings, joined by her husband J. T. Hutchings, and her son Jimmie Steele Hutchings, against A. B. Edsall individually and as trustee and executor under the last will of Addie B. Steele, and as guardian of one of his brothers, H. Van Edsall, a non compos mentis, and also agains( five brothers and sisters of A. B. Edsall (joining with the sisters their respective husbands) purporting, in a first count, to be an action of trespass to try title to a l/6th undivided interest in and to the land owned by Addie B. Steele at the time of her death, and for partition thereof. In a second count there were allegations designed to show that rents and' revenues of the separate property of Addie B. Steele and the increase of separate personal property of Addie B. Steele was community property of R. W. Steele and Addie B. Steele; that Clara Hutchings was the sole heir of R. W. Steele; that said executor and trustee took possession of said property under the terms of his mother’s will and that ½ of the value of said property, plus a l/6th interest in the property amounting to the sum of $2,623.44 had been converted by the executor and trustee and for the recovery of which amount judgment was prayed. In addition there were other allegations designed to show that A. B. Edsall had been guilty of a violation of the trust imposed by said will to the damage of plaintiffs, and seeking his removal as such trustee; and also seeking a money judgment against him for the difference, between the rents and revenues received and paid by him and the rents and revenues which it was alleged should have been received and paid by him to the beneficiaries thereof under the terms of said will.

As to the claim of conversion, defendant A. B. Edsall pleaded limitation of two and four years, and also pleaded estoppel, the basis of the latter.being that the personal property claimed to be converted had been disposed of by the terms of the will and that plaintiff Clara Hutchings had accepted benefits under the will.

In avoidance of the pleas of limitation, plaintiffs pleaded the coverture of Clara Hutchings; that A. B. Edsall had taken possession of the personal property under a continuing trust never repudiated; that Clara Hutchings was ignorant of the fact that the personal property • of which the executor and trustee took possession was community property in which she had an interest as such; that A. B. Edsall had promised, and upon which promise she had relied, that he would deed her the property awarded him in trust for her if she would allow the will to be probated and that she did not discover her rights to community personal property of R. W. Steele and Addie B. Steele until about April 1, 1938.

There was a jury trial in which a great number of issues were submitted to the jury, some of which were found in favor of the plaintiffs and others in favor of the defendants.

The court gave judgment for the plaintiff Clara Hutchings against A. B. Ed-sall awarding recovery of $2,083.75 and removing A. B. Edsall as trustee and appointing Byrd F. Thorp in his stead as trustee, with authority to act as suqh upon giving bond as specified in the sum of $1,000. The judgment denied recovery of plaintiffs against any other of the defendants or for or against any of the other parties.

The defendants have appealed.

A. B. Edsall, in his different capacities, being the principal appellant and defendant below, will, for convenience, be referred to as defendant or by name; and Clara Hutchings, principal appellee and plaintiff below, will be referred to as plaintiff or by name.

The defendant’s brief consists of 198 pages. There are 63 • propositions briefed under 55 assignments of error. To attempt even to state, or make identifying reference to, all these propositions, would alone extend the opinion beyond reasonable length. It is deemed not inappropriate, in connection with the above statement, to call attention to the wholesome , provision of Rule 35, governing Courts of Civil Appeals (142 S.W. xiii), that “When the assignments of error are numerous, counsel should present propositions on those which are most important in the determination of the case, waiving” etc. Under the circumstances we shall discuss only such questions, without reference to how they are raised, as are deemed necessary to a proper disposition of the appeal. In one way or another, all the questions, we think, are sufficiently raised to invoke our jurisdiction to determine them.

It is unimportant to any question for decision that the suit in part purported to be an action in trespass to try title. The record shows conclusively that the land involved was the separate property of Addie B. Steele; that it was disposed of by her will which, without contest, was duly probated and under which Clara Hutchings has accepted the benefits, and in this suit asserts rights existing alone under said will. No question of title or right of possession existed.

No serious question we think is presented regarding the jurisdiction of the district court. Considering the jurisdiction of the court as in no way aided by the purported action of trespass to try .title, it results that the question of jurisdiction must be determined with reference to two other causes of action asserted. One was for conversion involving an amount exclusively within the jurisdiction of the district court. The other was for the removal of the independent executor and trustee of the estate of Addie B. Steele for alleged mismanagement of the trust estate. It is concerning the latter that the question of jurisdiction is presented.

The probate court has no jurisdiction to remove an independent executor because of mismanagement of the estate, except when, under provision of R.S.1925, Art. 3438, he has been required to give bond and has failed to do so, in which case, under provision of Art. 3441, the probate, court has jurisdiction to order his removal. Perkins v. Wood, 63 Tex. 396; Jerrard v. McKenzie, 61 Tex. 40; Hocker v. Stevens, Tex.Civ.App., 42 S.W.2d 473. See, also, Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Id., Tex.Civ.App., 50 S.W. 491, 495. Manifestly, that procedure and condition under which the probate court has jurisdiction is not applicable in this case.

The probate court not having jurisdiction we shall assume, without definitely deciding, that the district court had jurisdiction. The court certainly had jurisdiction of-the suit insofar as it was one for conversion of an amount within its undoubted jurisdiction. Our conclusion as to the removal of the independent executor and trustee is such as to render the question of jurisdiction of no practical importance so far as the proper disposition of the case is concerned.

We are required to presume in support of the judgment, we think, that the evidence established conclusively plaintiff’s plea of coverture interposed by her to avoid defendant’s plea of limitation. The action to which the plea of limitations was directed was not “for the recovery of real property” as to which R.S. 1925, Art. 5518, applies to a married woman over 21 years of age, but an action included within those enumerated in R.S. 1925, Art. 5526, as to which Art. 5535 provides that limitation shall not run as to a married woman upon any such cause of action accruing during the coverture. Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Dodson v. Isensee, Tex.Civ.App., 273 S.W. 634 and authorities cited.

This conclusion renders all other questions bearing upon limitations and the avoidance of the bar thereof and the sufficiency of the pleading thereof of no controlling importance.

Notwithstanding the conclusion that if the plaintiff had any cause of action for conversion her coverture prevented the bar of limitations, we think it was conclusively established that plaintiff was not entitled to recover anything for conversion. By her own pleadings plaintiff disclosed that she claimed and had received benefits under the will of Addie B. Steele to which in the absence of such will she would have had no right. She was the beneficiary in the trust created by the will to the rents and revenues during her life from 345 acres of land. In the absence of the will she would have been entitled to no more than a one-sixth undivided interest in such land. Part of her complaint against the trustee, disclosed by her pleadings, was designed to secure for herself greater benefits from the trust than she had been receiving. The will itself showed by express declaration that all the personal property to which the claim of conversion relates, or that from which as rents, revenues or increase it was derived,, was disposed of by the will as the separate property of the testator. The plaintiff as a residuary legatee received some of that property, or the proceeds thereof, from the trustee. All the facts were known to her to which the law attaches the consequences of an election to take under the will. Plaintiff cannot, while appropriating the benefits conferred upon her by the will and seeking by the suit to have adjudged to her still greater benefits of the same nature, claim part of the property disposed of by the will as her own property, thereby, in effect, repudiating the right of the testator to dispose of it by her will. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, and authorities cited. The controlling principle is stated generally in the syllabus of the case cited as follows: “Where one elects under a will to accept the benefit therein granted he must adopt the contents of the whole instrument so far as it concerns him, and renounce every other right inconsistent with it.” This suit does not involve a rejection of all claims under the will including, as would be necessary, a showing of a sufficient excus.e for an apparent previous acceptance thereof on the ground of fraud, accident or mistake; but, on the contrary, the suit, as ’said before, seeks, in part, to •enforce rights under the willt'and to retain •all the benefits provided by it.

No legally sufficient ground for the removal of the trustee was alleged, unless it was that the executor leased the land for 30¾⅛ an acre, while its reasonable rental value, within the knowledge of the trustee, was 60‡ per acre. The will imposed no •duty upon the independent executor and trustee to advise with plaintiff; to place grazing lands in cultivation, or any of the ■other things relied upon to show a breach •of trust. Clearly, we think, the facts alleged show no breach of his trust by A. B. Edsall, unless he willfully leased the land to his son for 30‡ per acre, knowing that it was worth materially more and that he could have leased it for more. The evidence showed conclusively that the land was leased for 35^ per acre, and, upon sufficient evidence, the jury found that its reasonable rental value was 35^ per acre.

It is, therefore, our conclusion upon the whole case that the judgment should have been for the defendant, that the judgment of the lower court should be reversed and judgment rendered by this court to the effect that plaintiffs take nothing by their suit.

It is accordingly so ordered.


author: YOUNG, Justice. LOONEY, Justice

text:
    JOY et al. v. CITY OF TERRELL.
    No. 12846.
    Court of Civil Appeals of Texas. Dallas.
    June 15, 1940.
    Rehearing Denied Oct. 5, 1940.

      Bailey & Hammerly, of Chickasha, Okl., Bond, Croft & Bond, of Terrell, and Fred T. Porter, of Kaufman, for appellants.
    Morris Brin, M. F. Cate, and J. P. Coon, all of Terrell, and Ross Huffmaster, of Kaufman, for appellee.
   YOUNG, Justice.

The City of Terrell sued the directors and stockholders of City Sewerage Company, a dissolved corporation, for the year 1936 taxes, in which the State of Texas and County of Kaufman intervened on a similar claim. In a trial to the court, judgments were rendered for the respective tax bodies, primarily against directors M. A. Joy, W. B. Joy, Robert L. Warren and D. M. Pur-vine; and secondarily, against remaining named stockholders, which action of the trial court has resulted in this appeal.

Detailed findings of fact were made upon request of defendants in said cause, from which the following statement is taken: Terrell is a municipal corporation, operating through a Commission of five members, under special charter granted by the 32d Legislature, Loe. and Spec.Acts 1911, c. 51, and amendments thereto, voted by the electorate, as authorized by Art. 1165, R.S. (Home Rule). City Sewerage Company, a private corporation of $100,000 capital stock, divided into 1,000 shares, had owned and operated a sewerage plant in said City finder local franchise, granting to the municipality option to buy the same, which was exercised by a purchase of all Sewerage Company properties September 12, 1936, for $72,000 cash paid by the City of Terrell; a Resolution of the Company directors, pre- . ceding such sale, providing “that when said ■ purchase price shall have been paid and the debts of said City Sewerage Company settled, that a pro rata distribution of the amount, which shall then remain, shall be made among the stockholders of this corporation”; that the sewerage concern owned its plant on January 1, 1936, and had .voluntarily rendered its property for taxation to plaintiff City, through sworn inventory, with valuation of $37,525. In like manner, county and state tax valuations were rendered to the Kaufman County tax assessor-collector for such year. The findings were, further, that under the City ordinance fixing the tax rate, the sum of $750.50 was due for 1936 taxes, the total amount, plus interest and penalty, less credits, being $812.36; similarly, that the accrued county and state taxes were $544.85 at time of suit; that immediately upon sale of .the sewerage system in September, 1936, the directors,, by resolution, had wholly disbursed the $72,000 received for its properties by paying $32,000 on'its obligations, and a 40% distribution to stockholders, without paying the aforesaid 1936 taxes; the Sewerage Company later filing papers of dissolution. Another finding was that, following said cash distribution, the ■ corporation remained without assets or funds to pay the aforesaid taxes, resulting in personal liability of the directors named. Intervener, State and County, sought, to establish a lien for its taxes on the sewerage plant and property acquired by the City of Terrell, which was denied; defendant directors being held primarily liable and the other stockholders secondarily so, in the proportion of money that each had received as dividend on his stock.

Appellants, by voluminous pleading in the trial court, and various assignments here, assail the validity of these tax judgments, but, preliminary to a discussion of said appeal on its merits, disposition will be made of their first three propositions : That intervener (State and County) was improperly permitted to become a party, because of no community of interest in the demands pleaded, or in the subject matter of the suit. Said intervener was, at least, a proper party to plaintiff’s cause of action; sec. 28, Art. 30, City Charter; Art. 7345b, sec. 2, Vernon’s Ann. Civ. St. A multiplicity of suits was avoided by such procedure, and the defenses urged to intervener’s demand were, in all respects, similar to those asserted against plaintiff, i. e., a partial if not total invalidity of each assessment and judgment in fact and in law. No confusion or harmful effect seems to have resulted, or prejudice engendered by a joint trial of the tax demands in question, the hearing being before the court; Small-Lynch Co. v. Midwest & Gulf Co., Tex.Civ.App., 269 S.W. 163. Also to be noted in this connection was the claim of tax lien by the State and County upon the property acquired by the City from the Sewerage Company in September, 1936, for a municipal or public purpose. Intervener did not perfect an appeal from the judgment denying such relief, hence its cross-assignment complaining of error as against co-appellee City cannot be reviewed. Larson v. Middleton, Tex.Civ.App., 19 S.W.2d 120; Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960.

Next logically to be considered are defendants’ propositions 9 and 16 as to in-tervener, that the 1936 tax roll relating to the City Sewerage Company was not verified as required by Art. 7222; and as to plaintiff, that the City tax roll was not certified to by the assessor-collector, precluding both instruments from being competent evidence in a tax suit to establish liability for the amount of taxes alleged to be due. Together with the introduction of the county tax roll, this further evidence appears : (1) Order of Kaufman County Commissioners, fixing and levying the tax rate for 1936. (2) Certificate of the County Judge and Commissioners, constituting the Board of Equalization, of date October 1, 1936, approving the current tax roll as being correct. (3) Certificate of Mrs. Walter Beard, Tax Assessor-Collector (presumably under Art. 7222), recited as being sworn to and subscribed by affiant before Mattie Kincaid, Notary Public (such affidavit, however, not showing the signature of Mrs. Beard). (4) Sworn inventory of property rendered for assessment the same year by the City Sewerage Company; (S) that the taxes assessed against the Company were due and unpaid; all above testimony being developed through the witness Mr. Yates, deputy County As--sessor. Conceding the absence of signature to the certificate, called for by Art. 7222, we still think the particular tax roll was sufficiently authenticated as to be admissible, and that a prima facie case of valid assessment and tax liability was shown. George v. Dean, 47 Tex. 73, 89; Crocker v. Santo Consol. Independent School Dist., Tex.Civ.App., 116 S.W.2d 750. The decisions relied on by appellant are, Clayton v. Rehm, 67 Tex. 52, 2 S.W. 45; Taber v. State, 38 Tex.Civ.App. 235, 85 S.W. 835; Friedner v. Galveston, Tex.Civ.App., 229 S.W. 950, but their inapplicability to the present facts is sufficiently discussed by Judge Funderburk in the Crocker, case, supra.

Neither was the City tax roll rendered inadmissible by lack of affidavit, being authenticated by the City Secretary and Assessor, Mr. Riley, upon the witness stand. He identified the rolls in connection with the inventory made by the taxpayer and the original assessment lists; testifying that said rolls were regularly prepared and had been used in the collection of all taxes; that they were correct, and that the particular amount was due and unpaid. The ordinance fixing the 1936 tax rate and levy was introduced. Plaintiff’s charter does not require a compliance with Art. 7222, or the state statutes relative to collection of delinquent taxes; and sec. 16, Art. 30, of said charter providing for the certificate of the city assessor, is applicable where the rolls alone are relied on for a prima facie case. Otherwise, we find no provision therein making it compulsory for the City Secretary to certify his rolls, and even the roll itself is not essential to a valid levy or assessment. Crocker v. Independent School Dist., supra.

As to propositions complaining of error in the court’s rendition of personal judgment against appellant directors, we think they are clearly liable to such extent under the present facts for all valid taxes due by the City Sewerage Company. Their corporation had voluntarily rendered its property to the respective tax authorities, which both Boards of Equalization had not disturbed. Such Company, by its ownership on January 1, 1936, became bound for the taxes of the year, though the property be sold before the amount thereof has been ascertained and before the payments became due. Carswell & Co. v. Habberzettle, 39 Tex.Civ.App. 493, 87 S.W. 911, City Charter, sec. 15, Art. 30. These amounts were positive obligations to the City, County and State, which the, directors were required to discharge before liquidation, i. e., the distribution of all corporate assets, pro rata among stockholders; and appellant directors cannot deny that the surrender of their city franchise and. transfer of all Company assets was a virtual corporate disintegration. Such was reflected in the resolutions of said directors at the time, where provision was made for ascertainment of the concern’s obligations, payment thereof, and for said cash distribution. There was nothing thereafter for the corporation to do, except. take the statutory steps leading to dissolution (Art. 1388). Appellants, therefore, by their - affirmative acts, having diverted the Company properties from the payment of these taxes, would be personally liable to the extent of the assets thus lost to creditors. Love v. Gamer, Tex.Civ.App., 64 S.W.2d 393; Waggoner v. Herring-Showers Lbr. Co., 120 Tex. 605, 40 S.W.2d 1. They became trustees for the corporation after the sale and receipt of the $72,000, - within the terms of the statute, Art. 1388, which says: “Said trustees shall be severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands.” At said time, it is to be noted that appellant directors owned $92,900 of the corporation’s entire capital stock.

Appellants’ further assignments assert charter violations in the City’s process of assessment; and defects in the ordinance levying taxes, for which the City’s judgment is either wholly or partially void. Sec. 2, Art. 30, of the charter provides: “Time Fixed to Levy Ad Valorem Tax — Upon completion of the tax roll by the Assessor and the approval of the same by the Board of Equalization and the total amount of the assessed valuation ascertained, the Commission shall at their next meeting, or as soon thereafter as practicable, proceed to'levy all ad valorem taxes on all property situated within the city of Terrell on the first day of January of the current year, and the Commission is especially [authorized] to levy the taxes for the year 1911.” Bearing- in mind the terms of the above section, it is argued that where the last member of said Board of Equalization is shown to have signed the completed tax roll October IS, 1936 the ordinance fixing the tax rate passed by the 'City Commission September 8, 1936, is void; it being obvious that the total amount of assessed valuation was not ascertainable and the tax rolls incomplete and not approved at the earlier date. These propositions are overruled. Some informality may have existed regarding the manner in which the City Secretary (tax assessor and collector) and the equalization agency discharged their respective duties, not affecting, however, the result, i. e., a substantial compliance with the charter. Mr. Riley, the Secretary, testified that he had completed his work on the assessment sheets, which written material later became the tax rolls; that he delivered them to the Equalization Board, who, in turn, completed their review and approval of the assessments by July 24; and that nothing was done by them after said date, except to sign the typewritten rolls. Having regard to substance rather than to form, we cannot say that either the tax official, Board or commission failed in the duties prescribed by sec. 2, or that the least difference would have resulted had this requirement been more strictly pursued. A charter change in the particular procedure to the more practical language of the State statute on the subject is suggested (Art. 7206).

By propositions 6, 10 and 17, appellants challenge the validity of plaintiff’s ordinance fixing the 1936 tax rate, in that same imposed a fine, penalty, or forfeiture for violation of its provisions, and, admittedly, was not published as required by the charter, Art. 5, secs. 7, 8, and State law, Arts. 1013, 1176b — 1. The ordinance in question provides for an ad valorem tax of 65^ on the $100 valuation of all real and personal property within the city (not exempt) for the current expenses of the local government; 75‡ for support and maintenance of its public schools; 22‡ for maintenance of fire department; for Carnegie Free Library fund; 10⅜⅜ for permanent street improvements, and 23^ for interest and sinking fund. Sections 8 and 9 read: “Section 8. Be it further ordained by the Commission of the City of Terrell: That if any person, firm or corporation shall fail or refuse to pay the taxes assessed against his, her or its property by this ordinance or other ordinances passed by the Commission of the City of Terrell, before February 1, 1937, shall be declared delinquent and a penalty of ten per cent (10%) on the entire amount of such taxes shall be collected and paid to the City of Terrell, as provided by law for the collection of delinquent taxes. Section 9. That if said taxes are not paid by the first day of February, 1937, the same shall bear interest from the first day of March, 1937, until paid at the rate of six per cent (6%) per annum, in addition to the ten per cent (10%) herein-above provided for.”

Sec. 6, Art. 30, of plaintiff’s charter (a special act of the Legislature, effective March 20, 1911) provides, in part: “All taxes which are not paid by January 31st shall bear interest at the rate of 6 per cent per annum from March 1st, in addition to the 10 per cent penalty”; and the following is quoted from Sec. 23 : "Payment. — All taxes shall be and become due and payable on the first day of October of each year, and if not paid before the first day of February thereafter, the same shall bear interest from the first day of March until paid at the rate of six (6) per cent per annum, in addition to the ten (10) per cent penalty hereinbefore provided. It shall be the duty of all persons from whom such taxes are due to call and pay the same to the Assessor and Collector of taxes, or such other officer as shall be designated by the Commission, at its office in the said city, between the first day of October and the first day of February.” Sec. 24 deprives the Commission of any power to extend the time. Sec. 6, indefinite in itself, must be read with subsequent sec. 23, which plainly requires city taxes to be due and payable between October 1 of each year and February 1 thereafter, when interest and penalty shall definitely accrue. The governing body has no option on the subj ect, notwithstanding the language of sec. 4 that, “The Commission shall also determine when taxes shall be paid * * * The City’s organic law having specifically provided for penalty and interest on taxes not paid by a time certain, its terms are mandatory and self-operative; and a similar proviso in an annual tax ordinance is unnecessary and may be ignored. Nalle v. City of Austin, 41 Tex.Civ.App. 423, 93 S.W. 141; O’Connor v. Laredo, Tex.Civ.App., 167 S.W. 1091; 30 T.J., Municipal Corporations, sec. 272, p. 491; 44 C.J. sec. 4538, p. 1371. Absent the penalty feature just discussed, the particular ordinance is valid, in so far as non-publication is concerned.

A further major proposition of appellants (No. 12) is now stated: “Where the charter of a city prohibits the levying of a tax for general purposes and for permanent improvement of the streets in excess of 75‡ on the $100.00 valuation and does not permit the levying of a specific tax for the support of a fire department in any amount, and such city levies the full amount of 7⅛‡ tax for current expenses and for permanent street improvements, and attempts to levy an additional 22‡ for the support of a fire department, the ordinance insofar as it levies such 22‡ is-null and void as being contrary tó the charter and in excess of such charter limits, and in excess of the charter limitation on the levy of taxes for general purposes, such part of said tax cannot be collected in a suit brought to recover same.” The original charter (1911) empowered the City Commission of Terrell to establish and maintain a fire department, but authorized no specific tax therefor. In Art. 30, sec. 1, provision was made for the assessment and colléction of ad valorem taxes, not to exceed $1.15 for general purposes; other taxes expressly authorized being for interest and sinking fund, general school purposes, and Carnegie Public Library. In 1913, by vote, Art. 30, sec. 1, was amended to fix the maximum rate of taxation at $1.95 on the $100 valuation, being in part: “Tax— Power to Levy. — The commission shall have the power to levy and to provide for the assessment and collection of taxes ad valorem on all taxable property, real, personal and mixed, within the limits of the city, not to exceed seventy-five (75^) on the $100.00 valuation of taxable property for general purposes.” At the same time, Art. 29 was amended by adding thereto, secs. 17, 18, 19, 20 and 21, from which we quote: “(17) The city commission each year, when levying taxes, as provided in this charter for general purposes, shall levy and set apart out of the gross taxes allowed to be levied for general purposes, at least twenty-five cents on the $100.00 valuation, of all taxable property, to be expended exclusively for the permanent improvement, repair and upkeep of the streets and bridges of said City of Terrell. (18) If the city commission shall deem it wise to do so, it may levy and collect for one year, more than twenty-five cents on the $100.00 valuation of all taxable property, such excess over twenty-five cents to be exclusively used for the permanent improvement of the streets of said city; provided, however, that the amount levied for street and bridge purposes as heirein set forth, together with the amount levied for general purposes, shall never exceed in any one year the sum of seventy-five cents on the $100.00 valuation, as specified in this charter.” In 1919, also by vote, sec. 1 of Art. 30 was further amended by increasing the permitted tax rate to $2.25, and, pertinent here, providing: “The city commission of the City of Terrell, Texas, shall have the power to levy and to provide for the assessment and collection of taxes ad valorem on all taxable property, real, personal and mixed within the limits of the City of Terrell, Texas, not to exceed seventy-five ($.75) cents on the $100.00 valuation of all taxable property in said city for general purposes.” Thus, it will be seen that all tax revenues of plaintiff City are allocated to the four funds already mentioned, the rate for all purposes not to exceed $2.25; each of the particular funds or purposes being limited by the above amendments to a specific per centum of taxes levied, beyond which it cannot go. A street and bridge fund seems to have been created by sec. 19 above, dominated, however, by the restraint of sec. 18, “that the amount levied for street and bridge purposes as herein set forth, together with the amount levied for general purposes, shall never exceed in any one year the sum of seventy-five cents on the $100.00 valuation, * * *.” No authority is anywhere given the commission to levy a fire department special tax, indispensable as such department may be to municipal existence. In the absence of express provision therefor, tax disbursements for the upkeep of this governmental function are uniformly classified as current expenditures, to be paid out of current revenues. City of Sherman v. Smith, 12 Tex.Civ.App. 580, 35 S.W. 294; City of Denison v. Foster, Tex.Civ.App., 37 S.W. 167. That, by the plain wording of plaintiff’s charter, its fire department must be supported out of the general purpose fund, there can be no doubt. Power to levy the special 22‡ tax in plaintiff’s 1936 ordinance can only be inferred from the original charter power to establish and maintain such department, which inference, we think, disappears in the face of different and positive charter requirements. “Expressio unius est exclusio al-terius”. is the axiom to be applied. Aside from this, it is a familiar principle that the authority conferred upon a municipal corporation, to exercise the taxing power, is to be strictly construed and closely followed. Wood v. Galveston, 76 Tex. 126, 13 S.W. 227; Frosh v. Galveston, 73 Tex. 401, 11 S.W. 402; State v. Etheridge, Tex.Com.App., 32 S.W.2d 828; Graham v. City of Fort Worth, Tex.Civ.App., 75 S.W.2d 930, writ refused. While plaintiff’s tax rate for all purposes is well below the maximum of its charter amendments and state law, yet its people, at two elections, have failed to authorize a special tax for fire protection; on the other hand, expressly adhering to a 75‡ limit for general purposes, the only fund under the City's financial structure to which fire department expense can be charged. The local electorate alone is empowered to make valid the particular tax. Supreme Forest Woodmen v. City of Belton, Tex.Civ.App., 66 S.W.2d 439, writ refused.

Defendants’ liability to plaintiff must be reduced to the extent of 22‡ on the $100 valuation; or (with $93 credit allowed) to the principal amount of $574.95, on which penalty and interest, after March 1, 1937, have accrued.

• Appellants’ assignments are .otherwise overruled. Proposition 7, invoking as a defense the provision of Art. 7329, “That the defendant was not the owner of the land at the time the suit was filed”, refers only to a personal liability of the taxpayer, dependent upon title on January 1 of the year in which the taxes are due; and in proposition 8, even assuming an extinguishment of the City’s tax lien on sale of the sewerage system to the City, the personal obligation of the Sewerage Company to pay the 1936 taxes was not affected, because of ownership at the beginning of said year.

The judgment of the trial court will be reformed as above indicated, with respect to the City’s recovery, and, as reformed, is in all things affirmed.

Reformed and affirmed.

LOONEY, Justice

(dissenting on rehearing).

After a more mature consideration of the question, I have reached the conclusion that, the Court erred in holding that, the $0.22 tax levy for 1936, by the Commission of the City of Terrell, for the support and maintenance of its fire department, was null and void, and in reforming the judgment in harmony with that holding. I am now of opinion that, the motion of the City of Terrell for rehearing should be sustained, that the-former judgment of this Court reforming and affirming the judgment below should be set aside, and that, the judgment below should in all respects be affirmed. As the majority adheres to the original holding, I will state the reasons for my dissent.

A reading of the opinion by Associate Justice YOUNG discloses that, the contention of appellants, to the effect that, the levy of $0.22 for the support of the fire department of said City was null and void, because in excess of charter limitations, was sustained because the charter of the City contained no express provision authorizing the Commission to levy a special tax for the support and maintenance of the fire department; that, having expressly authorized levies for other purposes, the rule, “Expressio unius est exclusio alterius” applies, and excludes the idea that, the Commission was authorized to levy an additional tax for the support and maintenance of the fire department.

The rule of construction invoked, in my opinion, is inapplicable to the case under consideration; on the contrary, I think that, on a proper construction of the germane provisions of the City charter, and the pertinent provisions of the controlling statute, ample authority will be found, justifying the levy in question. In fact, the charter prescribes such a rule of construction. Sec. 6 of Article 31 provides that: “In the construction of any of the provisions of this charter, the intent of the section viewing the entire charter as a whole together with any particular section, shall be first considered. * * * ”

The charter of the City of Terrell provides, Sec. 1 (i) of Art. 16, that, “The Commission of the City of Terrell shall have the following powers, towit: Section 1 (i) Fires — Power to provide for the protection against and the extinguishment of fires and conflagrations, and may provide for the establishment, regulation, maintenance and support of one or more fire companies and fire departments, for the purpose of guarding against calamities of fire. To provide and maintain suitable fire apparatus for the extinguishment of fire and erection and building and acquisition of houses for fire stations and the housing of such apparatus, * *

The express authority conferred upon the City Commission to establish, maintain and support one or more fire-fighting companies for the protection of the public against fires and conflagration, in my opinion, carried with it, by necessary implication, authority to levy and collect a sufficient amount of taxes, within the maximum prescribed, deemed necessary for the purposes named. Therefore, I do not think it was essential to a valid exercise of such authority, that the charter should have expressly authorized the levy and collection of such taxes; in fact, express authority to levy a tax for the support of the fire department, in view of the authority conferred to establish and maintain such a department, was entirely unnecessary. Under well-established rules of construction, express authority to levy such a tax under the circumstances would have been sur-plusage, as it would have added nothing to the authority of the Commission to make the levy.

The rule of construction just mentioned is stated in Dillon on Municipal Corporations, Sth Ed., Vol. 4, Sec. 1380, p. 2401, as follows: “Authority May be Implied— The legislative branch of the government has the exclusive power of taxation, but may delegate it, as above stated, to municipal corporations. When such corporations are created, the power of taxation, though generally conferred in express terms, may be. held to exist by unmistakable intendment. When, for example, such corporations have, in order to execute a public work, been expressly vested with the authority to borrow money or incur an obligation, they have unless the contrary appears in the Constitution, or legislation of the state, the power to levy a tax to raise revenue wherewith to pay the money or discharge the obligation, without any special mention that such power is granted.” Writing upon the subject, the San Antonio Court of Civil Appeals, in Moreland v. City of San Antonio, 116 S.W.2d 823, 825, writ refused, used the following pertinent language: “Such a grant carried with it, by necessary implication, the incidental authority to levy such taxes and expend such public funds as were reasonably necessary to the exercise of the general power expressly granted by the amendment. The authority to levy a tax and expend public funds was purely incidental to the power to advertise, and would have been fully implied whether provided for in the amendment or not. It was an authority exercisable by the board of commissioners by ordinance, and without having been voted ttpon by the electorate, so long as it was for a purpose authorized by charter or the general laws. The result is that the provision in the amendment for the levy, collection, and spending of taxes was surplusage and, except for the limitation thereof, amounted to no more than confirmation of an authority necessarily incident to and implied from the general grant of power to advertise.”

So, applying this rule of construction to the situation under consideration, I think it follows, inescapably, that, the City Commission of Terrell was as fully authorized and directed to levy the tax of $0.22, for the support and maintenance of the fire department, as it was to levy taxes for the purposes expressly authorized.

The levy for 1936 was for the following purposes: To pay interest and create a sinking fund on bonds issued, .23; for the support and maintenance of schools, .75; for general purposes, .65; for street purposes, .10; for library, .05, and for the support and maintenance of the fire department, .22, aggregating 200.

Section 1 of Article 30 of the charter, as amended in October, 1919, is as follows: “Provided, however, the total tax rate here permitted to be levied shall not exceed Two and twenty-five one-hundredths ($2.25) Dollars, on the $100.00 valuation of all taxable property in said City for any one year, exclusive of the tax levied for the building of sidewalks, and inclusive of all taxes levied for bond issues.” Thus, it will be observed that, the levy for all purposes in 1936, including the 22 cent levy for the support of the fire department, was well within the maximum limit, hence was in no sense excessive.

The view expressed in the original opinion (adhered to by the majority) is that, the. only fund available for the. support and maintenance of the fire department, was the fund created by the levy for “general purposes”, and, as the charter limits the levy for general and street purposes to $0.75, the limit having been reached, that the attempt to levy 22 cents additional for the fire department was excessive, hence void.

No doubt that, in a comprehensive sense, the expense of maintaining and. carrying on a fire department is a current expense, and general in nature, and unless otherwise provided for, could properly be discharged from taxes levied and collected for general purposes, as was held in City of Sherman v. Smith, 12 Tex.Civ.App. 580, 35 S.W. 294, and in City of Denison v. Foster, Tex.Civ.App., 37 S.W. 167. However, in view of its express authority to establish and.maintain a fire-fighting department, I think the City of Terrell, under its power to levy “any general or special ad valorem tax, for any purpose not inconsistent with the Constitution * * * ” (Sec. 7, Art. 1175, R.C.S.), and “control and manage the finances” of the City and prescribe its “fiscal arrangements” (Sec. 10, Art. 1175, R.C.S.), was fully authorized to provide for the maintenance of its fire department by a levy, separate and apart from that of 75 cents for general and street purposes.

The phrase “general purposes” is not defined or explained in the charter. Evidently it was intended to include miscellaneous expenses that, at the time of levy, could not have been anticipated, or the amounts to be incurred estimated. 28 C. J. 609, discussing the meaning of the phrase “general fund”, states that, “as applied to a city”, it means “a miscellaneous sum for the payment of claims which will arise and for which it is impossible to remit the exact amount which will be required.” In the case of Kelly v. Broadwell, 3 Neb.Unof. 617, 92 N.W. 643, 645, referring to a similar appropriation, the court said: “ * * * It was proper for the city to provide a miscellaneous fund to be called a ‘general fund’ for the payment of claims which would arise, and for which it was impossible to estimate the exact amount, which would be required. * * *” So, I submit, in view of the several provisions of the statute and charter of the City, that it was not intended that, taxes levied and collected for “general purposes” should be expended for the support of any purpose for which a separate levy was either expressly, or by necessary implication, authorized.

Aside from the annual levy of .75 for general and street purposes, the charter of the City makes it the duty of its Commission to levy .05 for the support and maintenance of a library; .35 for the support and maintenance of schools, plus such additional amount (within the prescribed limitation) as may be authorized by a majority vote of the qualified property tax-paying voters; also a sufficient amount to pay the interest and provide a sinking fund sufficient in amount to discharge, at maturity, all bonds legally issued. Although for the purposes just mentioned, the charter contains express provisions authorizing and requiring levies, yet, I think, for the reasons heretofore stated, that, by necessary implication, the charter just as positively authorized and imperatively required the City Commission to make annual levies (not exceeding the maximum) for the support and maintenance of its fire department.

For the reasons stated, I am of opinion that, the motion for rehearing by the City of Terrell should be granted, that the judgment of this Court, heretofore reforming and affirming the judgment below, should be set aside, and that, judgment should now be rendered, affirming the judgment below in its entirety.


author: COMBS, Justice.

text:
    ROSE et al. v. GREAK.
    No. 3733.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 28, 1940.
    Wood, Morrow; Gresham & McCorquo-dale, of Houston, for appellants.
    Thos. A. Wheat and Chap B. Cain, both of Liberty, for appellee.
   COMBS, Justice.

On motion of the parties this cause is dismissed. This order is subject to payment of costs of this appeal, which are taxed against appellants.