text:
    FOWLKES et al. v. FOWLKES et al.
    No. 10882.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1939.

      No brief filed herein for appellant, but question of Fundamental Error argued to the Court orally by Henry S. Paulus, of Yoakum, attorney in court below for appellants here, defendants there. "
    Paul C. Boethel, of Hallettsville, for appellees.
   MONTEITH, Chief Justice.

Max Fowlkes, George Fowlkes and Ed Fowlkes, brothers of Abner Winfred Fowlkes, deceased, brought this suit to restrain Mrs. Eva Norton Fowlkes, the surviving widow of the said Abner Winfred Fowlkes, and Roy Hewett, an undertaker, from disinterring and removing the body of the deceased from the Andrews Chapel Cemetery in Lavaca County, Texas, to the Montgomery Cemetery, in Montgomery County, Texas.

A temporary writ of injunction was granted and issued on April 1, 1938, and upon final trial before the court, on October 13, 1938, judgment was rendered in favor of appellees perpetually restraining and enjoining appellants from disinterring and removing the body. No findings of fact or conclusions of law were requested and none were' filed. No detailed statement of facts was filed though the parties filed an agreed statement of the facts proved in the trial cóurt.

Appellees alleged that the interment of Abner Winfred Fowlkes in the Andrews Chapel Cemetery was in accordance with the expressed wish of the deceased and that his burial was under the direction and at the expense of appellant, Eva Norton Fowlkes; that no circumstances existed which indicated a necessity for the removal of the body of Abner Winfred Fowlkes; that Eva Norton Fowlkes has had and now has free access to the burying place of her husband and that the lot is receiving proper care and maintenancé and that it has adequate marking. Appellees alleged that they cherished the memory of their brother and the sentiment that prompted his request to be interred in the family lot in said cemetery and that they desired the body to remain at its present place of burial.

Appellant Eva Norton Fowlkes in her answer denied that it had been the desire or that her husband had requested that he be buried in Andrews Chapel Cemetery. She alleged that she expected to make her permanent home in Montgomery County, Texas, with her daughter; that her deceased husband had requested that she be buried by him and that she had promised that his request would be carried out but that appellees had informed her that she could not be buried in Andrews Chapel Cemetery next to where her husband had been buried. She alleged that her daughter had desired that her father be buried in Montgomery County, Texas, but that in their grief and shock they had permitted the remains to be interred in said Andrews Chapel Cemetery, and that it was her desire to remove her deceased husband’s body to Montgomery County, Texas, where she could care for and be buried next to his grave.

While it is the recognized rule in this state that the wife, upon the' death of her husband, has the primary and paramount right to the possession of his body and the control of the burial or other legal disposition thereof, (Foster v. Foster, Tex.Civ.App., 220 S.W. 215, Curlin v. Curlin, Tex.Civ.App., 228 S.W. 602, Burnett v. Suratt et al., Tex.Civ.App., 67 S.W.2d 1041; 13 Tex.Jur. 500-505.), the rule has also been established that when the duty to furnish proper burial has been discharged the right of custody ceases and the body is thereafter in the- custody of the law, and disturbance or removal of it is subject to the control and direction of a court of equity in any case properly before it. Thus any right of the wife to remove the body after it is interred is a qualified one. 13 Tex.Jur., page 504.

In the case of Curlin v. Curlin et al., Tex.Civ.App., 228 S.W. 602, 603, the court in its opinion said: “With regard to re-interment, the right of the wife still exists, reserving always the right of the court to require a reasonable cause to be shown for it. * * * The sentiment of humanity is not only against profanation, but disturbance. This disinterment of dead bodies is discouraged by the courts, as we think the trend of decisions indicates, and is as well repugnant to the sentiment of humanity. Removal should not be permitted except under circumstances indicating a necessity or for compelling reasons therefor.”

17 C.J., 1139, lays down the rule that: “Except in cases of necessity or for laudable purposes the policy of the law is that the sanctity of the grave should be maintained, and that a body suitably buried should remain undisturbed.”

Under the above authorities it was incumbent upon appellant Eva Norton Fowlkes to show that either her right as a surviving wife had been violated, or that there existed circumstances indicating a necessity or a compelling reason for the removal of her husband’s body.

When appellees, by the filing of this action, invoked the powers of a court of equity, the disturbance of the resting place of said body of Abner Winfred Fowlkes became subject to the control and direction of the court and the application for an injunction sought by appellees having been granted, the judgment rendered by the trial court is binding unless and until it is shown that the court has violated the judicial discretion lodged in him.

An examination of the record discloses that appellants did not file a motion for a new trial in the lower court and that no brief or independent assignments of error have been filed in this court by appellants, their sole contention, as stated in their oral presentation in this court, being that fundamental error was committed by the trial court in rendering a judgment herein without support in the evidence.

It has been uniformly held in this state that a want of sufficiency of evidence to support a judgment is not such fundamental error as may be considered on appeal in the absence of a proper assignment of error. Colorado Life Co. v. Newell et al., Tex.Civ.App., 78 S.W.2d 1049; Chase Bag Co. v. Longoria, Tex.Civ.App., 45 S.W.2d 242, 243; 3 Tex.Jur., Section 579, page 821; Republic Insurance Co. v. Grant, Tex.Civ.App., 8 S.W.2d 550.

We have found no other errors apparent from the face of the record, and in the absence of an assignment of error we are unable to sustain this contention.

Further, since this cause was tried without the intervention of a jury and the judgment of the court rests upon issues of fact and no findings of fact were made by the court, either as such or in the judgment rendered, we are not permitted, even if inclined to do so, to substitute our own judgment and interpretation of the evidence for that of the trial court.

Under an unbroken line of authorities in this state, under the facts above referred to, we must assume that the trial court, without violating the sound judicial discretion vested in him, found every fact, alleged by appellees, necessary to support the judgment herein, upon sufficient evidence and that he further found that the facts pled and testified to by appellant Eva Norton Fowlkes and upon which she relied as a defense to appellees’ cause of action, had either not happened or that such facts did not indicate a necessity or a compelling reason for permitting the disinterment and removal of the body of Abner Winfred Fowlkes. Excel Auto Radiator Co. v. Lerer, Tex.Civ.App., 118 S.W.2d 388; Maryland Casualty Co. v. Walsh & Burney Co., Tex.Civ.App., 119 S.W.2d 94; Clifford v. Swift, 120 S.W. 112; Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Moody-Seagraves Ranch, Inc. v. Brown, Tex.Civ.App., 69 S.W.2d 840.

For the above reason the judgment of the trial court is in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: PONDER, Special Justice.

license: Public Domain

text:
    W. O. W. LIFE INS. SOC. v. DICKSON et al.
    No. 1921.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 6, 1939.
    Rehearing Denied Nov. 24, 1939.

      Turner, Seaberry & Springer, of East-land, for appellant.
    Collie Bros, and Frank Sparks, all of Eastland, for appellees.
   PONDER, Special Justice.

Appellees recovered judgment against appellant, Woodmen of the World Life Insurance Society, on a $1,000 fraternal benefit certificate issued by appellant, without medical examination, to Veo Lee Roy Dickson; the appellee intervener, Higgin-botham Bros. & Company, recovering $177.50 upon a partial assignment of said certificate covering funeral expenses, and appellee beneficiary, the widow, Mrs. Agnes D. Dickson, recovering the $882.50 balance of the certificate, plus $120 statutory penalty and $250 attorney’s fees. Trial was by jury on special issues.

Appellant specially pleaded in defense that when the application was executed, on November 29, 1935, the certificate issued on December 26, 1935, and delivered to insured on January 4, 1936, the deceased was not then in sound bodily health and not in good health, but that at said times he was suffering from “tuberculosis, Bright’s disease, nephritis, heart trouble, valvular endocarditis, and other complications”, each and all of which tended to shorten his life, and that such alleged facts constituted breaches of warranty, which, under the express provisions of the application, certificate and Constitution and By-Laws of ■appellant, rendered the certificate null and void.

Appellant further specially pleaded that ■the deceased, in answers to the following questions under “Personal History” in his application, made false negative answers thereto, as follows:

“3. Has any change of climate or occupation ever been made or advised for the benefit of your health ?
“Answer: ‘No.’
“4. Has your weight in the last two years increased or decreased?
“Answer: ‘No.’
“7. Have you within the past five years suffered any mental or bodily disease or infirmity ?
“Answer: ‘No.’
“8. Have you within the past five years consulted or been attended by a physician for any disease or injury or undergone any surgical operation?
“Answer: ‘No.’
“9. Have you had in the last ten years any disease or injury other than those above mentioned?
“Answer: ‘No.’
“10. Have you fully recovered from any and all the diseases or conditions referred to above ?
“Answer: ‘No illness.’
“11. Are you now in good health?
“Answer: ‘Good.’ ”

Further, that said false answers constituted breaches of warranty, in that: “Prior to the date of his said application on November 29, 1935, a change of climate and occupation had been advised for the benefit of Dickson’s health; during the preceding two years before the date of said application his weight had decreased; during the preceding five years prior to the application, he had suffered from a bodily disease, to-wit: tuberculosis, Bright’s disease, and heart trouble; during the preceding five years prior to said application, he had consulted and been attended by a physician for tuberculosis, Bright’s disease, and heart trouble; during the ten years preceding said application, he had suffered a disease in the form of tuberculosis, Bright’s disease, and heart trouble; prior to said application he had suffered an illness in the form of tuberculosis, Bright’s disease, and heart trouble, and on November 29, 1935, he was not then in good health.”

Issues on all of the alleged breaches of warranty were submitted to the jury and were answered adversely to appellant, with the exception of the one involving answer to Question No. 8 which was submitted in Special Issues Nos. IS and 16, and which we will later discuss.

Appellant’s First Assignment and Proposition complains of the error of the court in overruling its motion for instructed verdict, notwithstanding that the issues as above stated were found adversely. However, if there- was evidence of probative force to support the jury findings, then they must stand. ,

The record discloses a conflict of evidence. Dr. M. L. Stubblefield testified that he had examined the deceased during 1935, prior to the date of the application, and had found him suffering from tuberculosis, Bright’s disease, and heart trouble, and had advised deceased to go to the State Hospital at Sanatorium, and had written prescriptions for him. Appellee Mrs. .Dickson denied that her husband had consulted or been treated by Dr. Stubblefield in 1935, but that such occurrences were in 1936. The testimony of Walter B. May, a druggist, tended to fix the time of Dr. Stubblefield’s consultations, prescriptions, and treatment of deceased in 1936, rather than 1935, and that he found no prescriptions for 1935. Dr. P. M. Kuykendall testified that he examined the deceased on August 29, 1936, and found him to be suffering from tuberculosis, Bright’s disease, and heart trouble, and that deceased was not in good health and had had tuberculosis "at least a year or better.” Dr. Ed Blackwell testified that he examined the deceased about the 1st of Séptember, 1935, for tuberculosis and heart trouble and that he did not find any evidence of tuberculosis or heart trouble. Appellee Mrs. Dickson and several lay witnesses testified that they had observed deceased in his daily life and that he was, or appeared to be, in good health; that he looked healthy, and continued his work up to January 4, 1936, when the certificate in question was delivered to him.

Under the conflicting testimony we cannot say, as a matter of law, that the deceased on the dates in question suffered from any of the diseases alleged or that he had consulted or been treated by a physician prior thereto. The jury in its province may have concluded that Dr. Stubblefield was mistaken in his dates, or have given weight to the testimony of Mrs. Dickson and other lay witnesses, which was admissible. General Life Insurance Co. v. Potter, Tex.Civ.App., 124 S.W. 2d 409, and cases there cited; American National Insurance Co. v. McKellar, Tex.Civ.App., 295 S.W. 628; Vann v. National Life & Accident Insurance Co., Tex.Com.App., 24 S.W.2d 347.

Even though we should be of the opinion that the clear preponderance of the evidence was in favor of the appellant on these issues, this case should be reversed and remanded, rather than rendered as insisted by appellant; Wininger v. Fort Worth & Denver City Ry. Co., 105 Tex. 56, 143 S.W. 1150; Manning v. Ry. Co., 107 Tex. 546, 181 S.W. 687; Davidson v. Pyle, 103 Tex. 209, 124 S.W. 616, 125 S.W. 881; and since we find it necessary to reverse and remand this case on other grounds, we express no opinion as to such preponderance.

Appellant, in support of its position that the court erred in overruling its motion for an instructed verdict, both in its brief and in oral argument, urged that breach of warranty as to questions and answers Nos. 7, 8 and 9 was shown by the testimony of appellee Mrs. Dickson, in that her husband had the “flu” in the Fall of 1928, and was attended by Dr. Bachelor in Oklahoma; that Dr. Blackwell removed the tonsils of deceased in 1932 or 1933, about three years before he joined the Woodmen and that deceased spent one night in the hospital after the operation; and that he went to see a doctor in Ranger for his kidneys.

We find no pleadings of appellant to support these defenses, its pleadings, being confined or limited to tuberculosis,. Bright’s disease, heart trouble, and “other complications.” A breach of warranty based on such defenses must have been specially pleaded by appellant. Knights and Ladies v. Russell, Tex.Civ.App., 209 S.W. 756; Sovereign Camp, W. O. W., v. Hubbard, Tex.Civ.App., 248 S.W. 732.

An examination of the authorities cited by appellant as requiring a reversal and. rendition of this case will disclose that the evidence in these cases was undisputed, and hence inapplicable under the record of this case. We overrule appellant’s-first assignment and proposition.

Appellant’s third assignment and proposition are' substantially that W. B. May, a druggist, having been called as a witness for appellee and having testified that deceased was sick in 1935 or 1936, “I forgot. what date that was”, and that he did not think he filled any prescriptions for deceased in 1935, and did not find any in his files, and having been cross examined in detail with reference to a written statement signed by him on October 30, 1936, which tended to contradict his testimony on the trial, the court erred in excluding said statement and in refusing to permit appellant to introduce the same in evidence. We sustain this assignment.

In view of the testimony of Dr. Stubble-field that he had treated and prescribed for the deceased prior to the date of the application, its issuance, and delivery on January 4, 1936, and that deceased was suffering from certain diseases and ailments prior to those dates, the testimony of Mr. May was very material on those issues.

The excluded statement, appellant’s exhibit No. 6, a photostatic copy of which is a part of the statement of facts, reads:

“Confirmation of Interview
My name is Walter B. May
My home address is Desdemona, Tex.
I am -at present employed by self— druggist
Business address— Desdemona
I can always be found by writing to my
Defendant’s Exhibit — No. 6, Cause No. 17,019, Bess C. Terrell, Court Reporter, 91st District Court, Eastland County, Texas.
address
Date Oct. 30, 1936.
I had known Veo L. Dickson for three years. He had lived here in Desdemona that length of time. Mr. Dickson did mechanic work when he first came here. He was not very successful. The spring of 1935 he was on the Welfare for awhile. During about March, 1935, Mr. Dickson came to me complaining of nervousness, nausea and insomnia. I sent him to Dr. Stubblefield for treatments. After he first saw the Dr. he seemed some better, and he drove the school bus all winter. In March, 1936, he had the Chicken Pox. This left him weak and he gradually grew worse. Pie died October 19, 1936. I have fixed a number of prescriptions for the deceased, starting the latter part of 1935 and up until his death. Some were for kidney trouble, some for stomach trouble, and for heart trouble.
Walter B. May
Witness: Howell P. Clark.”

Mr. May, on direct examination, testified that on November 29, 1935,, and on January 4, 1936, deceased was, and seemed to be, in good health, and further testified: “He had a little spell of sickness in 1935 or 1936, and I forget what date that was.

“Q. Did you ever fill any prescriptions for Mr. Dickson in 1935 at all, Mr. May? A. I don’t think so.
“Q. Do you remember ever calling Dr. Stubblefield for Mr. Dickson, for any prescription for him? A. Yes, a time or two.
“Q. Was that in 1934 or 1936? A. 1936 is the only time I called him.
“Q. Do you remember about what month that was? A. No, I don’t.”

Counsel for appellant in laying a predicate for impeachment, after the witness had admitted signing the statement, asked him, among other things:

“Did you make this statement: ‘During about March, 1935, Mr. Dickson came to me, complaining of nervousness, nausea and insomnia?’ A. I believe the dates are wrong, I think the other is all right, but I don’t recall that is the date.
“Q. That is the statement you made in here, isn;t it? T sent him to Dr. Stubble-field for treatment ?’ A. I sent him to Gor-man.
“Q. And you made that statement? A. Yes sir.
“Q. When did you send him to Dr. Stub-blefield ? A. I don’t remember just when it was, sometime along the first of the year.
“Q. What year ? A. 1936, that is the way I have got it in my mind.
“Q. T have fixed a number of prescriptions for the deceased’ — you made that statement? A. Yes.
“Q. How many would you say there were ? I think seven, eight, or nine, I don’t remember exactly.
“Q. Starting the latter part of 1935 and up until his death, is that right? A. Well, you have got that down there, but I think he got the dates wrong.
“Q. You think it should be the latter part of what year? A. 1936.
“Q. And up until his death? A. Yes, sir.
“Q. ‘Some were for kidney trouble, some for stomach trouble, and for heart trouble’ is that right ? A. I filled one for heart trouble.
“Q. Just answer the question whether you made that statement or not? A. If that is written down there like that now, I didn’t.
“Q. You did sign it ? A. That is my signature there.”

Appellant offered the statement in evidence identified as its exhibit No. 6, which was objected to, objection sustained, and exception taken. We think that the matters under inquiry were material and that a sufficient predicate had been laid for the admissibility of Mr. May’s signed statement for impeachment purposes and that the court erred in sustaining appellees’ objection and in excluding the statement. 45 T.J. sec. 274, p. 148; sec. 280, p. 155; sec. 281, p. 157; sec. 284, p. 160; Gulf, C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 71, 93 S.W. 1068; Bradley v. T. & P. Ry. Co., Tex.Com.App., 1 S.W.2d 861.

Since the second, sixth, and forty-first assignments and propositions are so closely related, we will consider them together.

Appellant, in its second proposition, complains of the action of the court in overruling its motion for judgment on the verdict, because the jury found that within five years prior to November 29, 1935, the deceased had consulted a physician for tuberculosis, which was contrary to his answer to Question No. 8 in the application.

Appellant, in its forty-first proposition, asserts that the insured having warranted in his application (answer to Question No. 8) that he had not consulted a physician within five years prior to his application, and the jury having found in answer to special issue No. 15 that he did consult a physician for tuberculosis within said time, the court erred in rendering judgment against it.

Appellant, in its sixth proposition, complains that the court submitted to the jury special issue No. 16 which reads:

“If you have answered the next preceding special issue ‘yes’ then answer this question:
“ ‘Do you find from a preponderance of the evidence that such consultation, if any, was not for the purpose of ascertaining the physical fitness of Veo L. R. Dickson for employment as a bus driver?’
“You will answer ‘Such consultation was not for such purpose’, or ‘Such consultation was for such purpose’ as you find from the preponderance of the evidence”; to which the jury answered: “Such consultation was for such purpose.”

Appellant asserts three distinct grounds of complaint to this issue, namely : (1) that the purpose of the consultation with a physician is immaterial; (2) that the issue was not supported by the pleadings ; and (3) that the burden of proof was misplaced. We hold that the second and third grounds are good. The record does not disclose any pleadings to support the issue as 'submitted and, if relied upon by the appellees, should have been pleaded, and, if pleaded, the burden of proof would have been upon appellees. As to the first ground, we cannot agree that in all cases the purpose of a consultation with a physician would be immaterial in testing the falsity of a negative answer to such a question as No. 8 in the application for a certificate of insurance in such association as appellant. We realize that some of our Courts of Civil Appeals have held that the answers in the application for such type of insurance certificate must be literally true. Sovereign Camp, W. O. W., v. Rodriquez, Tex.Civ.App., 125 S.W.2d 1069, writ of error granted; Sovereign Camp, W. O. W., v. Mendez, Tex.Civ.App., 123 S.W.2d 985; Modern Woodmen of America v. Owens, 60 Tex.Civ.App. 398, 130 S.W. 858.

• We do not hold that untrue representation must be material, but so far as here pertinent, question No. 8 in the application inquired as to whether or not the applicant (deceased) had “ * * * within the past five years consulted or been attended by a physician for any disease or injury * * A finding by the jury that the applicant, within the period inquired about, had consulted a physician for the purpose of obtaining a health certificate so that he might obtain a job as a school bus driver (Issues 15 and 16 and answers thereto) does not constitute conclusively and as a matter of law a finding that applicant “had consulted a physician for any disease” and to sustain appellant’s contention would necessitate our so holding.

We think that a reasonable construction should be placed upon such a question as viewed from the layman’s point of view and that it should be read in its plain, ordinary, and natural signification and should not be so construed as to lead to an absurdity or to defeat justice and right and, therefore, in our opinion a routine examination which discloses no disease or injury or which does not require treatment for any disease or injury should not as a matter of law be regarded as a consultation with a physician “for any disease or injury.” We believe that such reasonable construction is borne out by the following cases: The Homesteaders v. Stapp, Tex.Civ.App., 205 S.W. 743; Winn v. Modern Woodmen of America, 157 Mo.App. 1, 137 S.W. 292; Elliott v. Grand Lodge Brotherhood of Railway Trainmen, 231 Mo.App. 49, 95 S.W.2d 829; 45 C.J. 85; National Americans v. Ritch, 121 Ark. 185, 180 S.W. 488.

Since issue No. 15 was submitted in conjunction with issue No. 16 to which the jury answered that such consultation was for the purpose of ascertaining the physical fitness of deceased for employment as a bus driver and since the jury was instructed that if they had answered issue No. 15 “yes”> then they would answer issue No. 16, whereby their answer to one may have influenced the other, we cannot consider it proper to ignore issue No. 16 and its answer and to make disposition of the case solely on issue No. 15 and its answer; and, therefore, in the interest of justice, we consider it proper to reverse and remand the case.

The argument of counsel complained of in appellant’s fourth, fourteenth, fifteenth and sixteenth assignments will probably not occur on another trial'.

Appellant’s fifth assignment and proposition complained of the court’s overruling of its objection to the introduction of an unverified, unsigned report of the Harper-Holmes Bureau, dated November 28, 1935, stating that the informant had not learned of any illness of deceased and that he apparently enjoyed good health. As an ex parte declaration, it was inadmissible to prove the truth of the statements therein contained. Appellees, under their sixth counter proposition, argue that the report showed that appellant did not rely upon the warranties in the application, but waived them and made an independent investigation of. its own. We find no pleadings to support appellees’ position and, therefore, hold that the court erred in admitting the statement in evidence over the objection of appellant.

Appellant’s seventh, eighth and ninth assignments and propositions, complaining of the court’s refusal to submit requested issues as to whether on the date of the application, the date of the certificate, and of its delivery, the deceased was “suffering from any disease that would tend to shorten his life”, are overruled, because the court submitted, and the jury answered against appellant, issues submitting the question as to the diseases pleaded by it.

We overrule all other assignments complaining of the failure of the court to submit requested issues, for the reason that all defenses pleaded by appellant were submitted by the court.

In view of what has been said and of the disposition we are making of this case, we think it unnecessary to discuss the other assignments, which are here overruled.

LESLIE, C. J., and FUNDERBURK, disqualified and not sitting.


author: BLAIR, Justice.

text:
    HICKS RUBBER CO., DISTRIBUTORS, v. STACY et al.
    No. 8840.
    Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1939.

      Walter Pierson and Cofer & Cofer, all of Austin, for appellant.
    Hart, Patterson, Hart & Brown, of Austin, for appellee.
   BLAIR, Justice.

Appellant, Hicks Rubber Company, Distributors, a corporation, sued appellees, Harwood Stacy and D. C. Clarke, individually and as partners under the firm name of Louisville Development Company, for damages for conversion of an ornamental sign, for trespass upon the leased land upon which the sign was located, and for exemplary damages.

The undisputed facts showed that appellant owned a lease on a small portion of a 60-acre tract, was in possession of it, and had built a large ornamental advertising sign thereon. Afterwards, appellees purchased the 60-acre tract of land from appellant’s lessor, and went into possession of it, and notified appellant to remove the sign; which appellant refused to do. While appellant’s attorney and appellee Stacy were discussing the matter, appel-lee Clarke sawed the sign down and moved it off the leased premises where the sign was located, and placed it on other premises of appellees, and took possession of the leased premises.

At the conclusion of the evidence, the trial court refused to submit the issue of conversion as requested by appellees, but submitted only the issues as to damages, concluding that the undisputed facts established conversion of the sign.

In. answer to the special issues Submitted, the jury found that the value of the balance of the term' of the lease and sign just before the sign was taken to be $500. The jury also found the value of the sign after it had been taken down and removed from the leased premises to be $425. The jury found damages for trespass upon the leased premises to be $1. They found further that appellees acted maliciously in taking the sign down and removing it from the leased premises; but that appellant suffered no exemplary damages.

Appellant filed its motion that the court ignore the jury’s finding that the value of the sign was $425 after its removal from the leased premises, and to render judgment for it for $500, with 6% interest from the date of removal of the sign by appel-lees. The trial court overruled the motion, and rendered judgment for appellant for $76, being the difference in .the value of the sign before and after its removal by ap-pellees, plus $1 for' the trespass of appel-lees upon appellant’s lease; hence this appeal.

Appellant contends that the trial court erred in mitigating the damages to the extent of the value of the sign after it had been removed from the premises, which appellees offered to return, but did not offer to return the leased premises for the balance of the leasehold term. On the other hand, appellees contend that having tendered the sign to appellant they did not convert appellant’s property; and that appellant failed to distinguish between the doctrine of asportation and conversion. We have reached the conclusion that the trial court erred as contended by appellant.

The law is well settled in Texas that where property has been converted, other than under circumstances which would be a technical conversion or the result of a mistake, no tender of the converted property may be shown in mitigation of damages for conversion. Kolp v. Prewitt, Tex.Civ.App., 9 S.W.2d 490; Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181 writ refused; Kilgore v. De Vault, Tex.Civ.App., 82 S.W.2d 1048; Bridgeport Mach. Co. v. Geers, Tex.Civ.App., 36 S.W.2d 1047, writ dismissed; Edwards v. Thannisch, Tex.Civ.App., 254 S.W. 523; Gulf C. & S. F. R. Co. v. Buckholts State Bank, Tex.Com.App., 270 S.W. 1008; Baker v. Black, Tex.Civ.App., 83 S.W.2d 811; 42 Tex.Jur., § 28, p. 539 and § 67, p. 585. In Crawford v. Thomason, supra, the court say [53 Tex.Civ.App. 561, 117 S.W. 184]: “* * * it is well settled by the authorities that, when a wrong complained of amounts to a conversion, the injured party has the right to so treat it and to sue for the value of the property so taken, and also to refuse to accept it when the wrongdoer offers to return it. Weaver v. Ashcroft, 50 Tex. [427], 444; Hofschulte v. Panhandle Hardware Co. (Tex.Civ.App.) 50 S.W. 608.”

In the instant case, appellees knew that they had no right to remove the ornamental sign from the leased premises, but desiring possession of the leased premises so that they might use them, and without the consent and over the protest of appellant, and while negotiations were being had by one of the appellees with appellant with regard to the matter, the other appel-lee sawed the sign down and removed it from the premises. Appellees made no tender of the leased land, but simply tendered the sign after its removal, and, offered to permit the sign to be erected on another lot of land belonging to them. Thus appellees deprived appellant of its lease of the land; they sawed its sign down and forcibly removed it from the leased premises to their own premises, where it has continuously been in their possession. Manifestly the’tearing down and removing of the sign from the leased premises constituted conversion of it, which acts were tortious, and as found by the jury malicious.

If applicable in Texas, the doctrine of “wrongful asportation” of a chattel, as contended for by appellees, has no application to the facts of the instant case. It seems to be the contention of appellees that the doctrine of wrongful asportation means that in order to establish conversion it must clearly appear that the taker converted the property to his own use; and that since appellees tendered the sign to appellant they were not guilty of conversion, but the removal of the sign was a mere wrongful asportation of it; and that appellees were therefore entitled to offset the value of the sign after it was taken from the leased premises from the damages occasioned by the wrongful asportation of it. Such is not the true doctrine of asportation, which is analyzed in 26 R.C. L., 1111, as follows: “According to Lord Mansfield ‘a mere wrongful asportation of a chattel does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker’s own use, or that of some third person, or unless the act done has the effect of destroying or changing the quality of the chattel.’ As a logical deduction from this doctrine it would clearly seem that the defendant, in order to be guilty of conversion, must have converted the property to his own use; and if not, then any other act, to amount to conversion, must be done with a wrongful intent, either express or implied. In other words the intent of the defendant should be taken into consideration when his act is otherwise equivocal.”

The facts of the instant case show a conversion under two exceptions stated in the qúoted rule: 1) destroying or changing the quality of the chattel taken; and 2) taking it or removing it from the leased premises with wrongful intent, either express or implied, or wilfully and with malice, as found by the jury. The sign was a large one, built on posts set in concrete six feet in the ground. Appel-lees sawed the posts off and left the remainder of them and the concrete base in the ground, and took possession of the leased premises on which the chattel was located as a fixture and not a part of the leased land, but a part of the leasehold es-¡ tate; and appellees tore down and removed the sign and took possession of the leased premises, knowing that they had no legal right to do so. These facts bring the case within the rule announced in numerous Texas cases to the effect that the wrongful or unauthorized taking of personal property from the possession of the owner is a conversion; and that the exercise of any dominion over the property, wrongfully and in denial of or inconsistent with the owner’s right, which amounts in law to an illegal assumption of ownership, is a conversion. 42 Tex.Jur., pp. 518-519, §§ 12 and 13, and cases there cited.

As owner of the leasehold estate and the sign situated thereon, and in jurisdictions applying the doctrine of wrongful asportation of chattels, appellant would have had the election of three remedies under the facts of the instant case. These remedies as against one wrongfully severing and removing fixtures is brought out in the case of Wadleigh v. Janvrin, 41 N.H. 503, 77 Am.Dec. 780, wherein the court say: “The plaintiff might, it is true, have made the wrongful entry of the defendant the gist of his action, and have brought trespass quare clausum * * * but he had a right to qualify the tort by waiving the wrongful entry, and rely only upon the wrongful taking and carrying away. He might have still further waived the wrongful taking and carrying away, and have sued in trover for the conversion alone; since, where the whole merits of a case are discussed and determined in one action, the judgment may be pleaded and shown in evidence -in bar to another. It is not for the defendant to complain that the plaintiff has waived some portion of his legal rights. He is certainly in no worse condition than if they had been insisted upon. Trover and trespass are generally concurrent remedies for the unlawful taking and conversion of personal property.”

In the instant case appellant elected to pursue his remedy of trover and trespass for the unlawful taking and conversion of the personal property, the advertising sign.

Nor is there any merit to the contention of appellees that since they offered to permit appellant to place its sign on other premises of appellees, they were, therefore, entitled to plead and prove that fact in mitigation of the damages for the conversion of the sign from the premises leased by appellant. Manifestly, one who has wrongfully converted personal property should not be allowed to dictate or stipulate a condition which the owner of the property is bound to comply with in order to have the property returned to him. Kolp v. Prewitt, supra.

Nor do we sustain the contention of appellees that a demand and refusal to return the property were necessary before suit could be instituted for its conversion. Where the taking of the property is wrongful, demand is not a condition precedent to the right to sue for conversion of it. Cotten v. Heimbecher, Tex.Civ.App., 48 S.W.2d 402.

We conclude that the trial court erred in deducting from the reasonable value of the converted property the value of it immediately after its conversion. The trial court should have rendered judgment for the $500 found by the jury to be the value of the property converted, together with $1 for trespass upon the leased premises, and for interest at the rate of 6% per annum on the value of the converted property from the date of the judgment of the trial court; and accordingly judgment is here rendered for appellant against ap-pellees, jointly and severally.

In this connection appellant contends that it is entitled to interest at the legal rate on the value of the property converted from the date of its conversion as a part of the damages sought. But appellant failed to plead for interest as damages, and therefore cannot recover such interest damages from the date of the accrual of the cause of action. Appellant sought to recover several specific items of damages, including an item of $750 as the value of the property converted, and its prayer was for exactly the sum total of the several specific items of damages alleged. It did not pray for damages exceeding the sum total of the specific items of damages alleged, and is therefore not entitled to recover interest under its prayer for general relief. The identical question was decided in the case of Texas Power Corporation v. Kuehler, Tex.Com.App., 52 S.W.2d 76; the court holding that, where prayer was for damages for the exact amount claimed as the market value of property destroyed (or converted as in the instant case), the court could not, under the prayer for general relief, allow damages as interest merely because the jury found the market value of the property was less than that alleged.

Appellant states that if we reverse and render the cause as we have, it does not further urge the several propositions in its brief, which would if sustained only reverse and remand the cause for another trial.

The judgment of the trial court is reversed, and judgment is here rendered for appellant against appellees, in accordance with this opinion.

Reversed and rendered.


author: COMBS, Justice.

text:
    SHELL PETROLEUM CORPORATION et al. v. HOWTH.
    No. 3239.
    Court of Civil Appeals of Texas. Beaumont.
    July 27, 1939.
    Rehearing Denied Nov. 15, 1939.
    On Motion to Retax Costs Nov. 29, 1939.
    See 135 S.W.2d 197.

      J. P. Adoue, of Houston, Orgain, Carroll & Bell and Melvin Combs, all of Beaumont, Cain & Wheat, of Liberty, Stevens & Stevens and R. H. Whilden, all of Houston, Thompson, Mitchell, Thompson & Young, W. K. Koerner, and C. P. Berry, all of St. Louis, Mo., and A. E. Groff, of Houston, for appellants.
    W. D. Gordon, Howth, Adams & Hart, and Gaston H. Wilder, Jr., all of Beaumont, for appellee.
   COMBS, Justice.

On the Sth day of September, 1936, appellee, C. W. Howth, as plaintiff, filed his original petition in this cause, naming as defendants Shell Petroleum Corporation, Ford Clevenger, O. H. Noland, C. O. Wier and a group of parties which we shall designate as the “Gregory Heirs”. For cause of action appellee alleged the following facts: (1) On the 12th day of January, 1931, appellee owned in fee simple, and was in possession of, a certain tract of land, a part of the A. Horton survey in Jefferson County. On that date he executed to the Shell Corporation, on the nominal consideration of $10 and certain other considerations named in the instrument “an option agreement or contract to acquire a mineral lease” on two subdivisions or tracts of his land in the A. Horton survey, tract No. 1 described as containing 45.56 acres of land, and tract No. 2 as containing 66.65 acres of land. By supplemental agreement, executed by ap-pellee and Shell Petroleum Corporation on the 3d day of October, 1933, based upon an actual survey, the description was corrected so as to describe the land as containing 117.12 acres. By the terms of this agreement no title was invested in the Shell Petroleum Corporation, denominated in the contract as lessee, “but only the right to acquire a mineral estate or interest therein upon precedent conditions to be complied with by Shell Petroleum Corporation certain of these conditions were plead — the duty and right to pay “delay” rentals which were regularly paid, etc. (2) It was further alleged that Shell Petroleum Corporation had forfeited all interest in the contract by the following facts: In the latter part of July, 1936, Shell Petroleum Corporation discovered oil on a tract of land about a half mile from appellee’s land by drilling thereon an oil well. After discovering this oil, Shell Petroleum Corporation entered into a conspiracy with the defendants Noland, Wier and Clevenger, to search out and find the heirs of Thomas W. Gregory, deed., who at one time held an executory contract under appellee’s “predecessors in title,” whereby Gregory had the right to purchase the land, and procure from the Gregory heirs a power of attorney, to be taken in the name of Noland, and also to secure “certain other conveyances and contracts”; this scheme originated with Shell Petroleum Corporation and its agents, and was financed by them. The Gregory heirs had no title; more than 15 years prior to the filing of this suit appellee had acquired all interest in the. land from the owners of the legal title, and also from the Gregory heirs; he had fenced, claimed, cultivated, used and enjoyed the land more than 15 years, thereby perfecting title under the statutes of limitation; (3) Shell Petroleum Corporation and the other conspirators searched out and found the Gregory heirs, secretly and without knowledge of appellee, and induced them to assert a false and fraudulent claim to appellee’s land, and induced them to enter into a contract whereby “the fruits and revenues of the land” were to be divided, seven-eighths to Shell Petroleum Corporation, and one-eighth to the other conspirators and the Gregory heirs. These things were done by the conspirators secretly and without the knowledge of appellee, and to his great injury. All expenses incurred in securing these contracts from the Gregory heirs were paid by Shell Petroleum Corporation and its fellow conspirators, for their joint benefit and behalf. The Gregory heirs were induced by the conspirators, acting jointly, to assert a false and fraudulent claim to appellee’s land which they had never before asserted, though some of them had lived in the immediate neighborhood of the vicinity of appellee’s land for more than 15 years; and all of the Gregory heirs knew that they had no title in the land, that appellee owned the fee simple title thereto, and during the 15 years had acquiesced in his title; (4) acting together, the conspirators secured a power of attorney from the Gregory heirs, and Noland, Wier and Clevenger, and the Gregory heirs, acting together, executed to Shell Petroleum Corporation a mineral lease on appellee’s land “for a previously agreed large cash consideration.” Asserting a claim under the contracts executed to it by the Gregory heirs, Shell Petroleum Corporation claimed a right to go upon appellee’s land and develop it for oil, to the exclusion of the duty owed by it to appellee to develop the land for his benefit and, claiming under the contracts from the Gregory heirs, Shell Petroleum Corporation asserted a title to appellee’s land as against the title it held under appellee; (5) by acting with the Gregory heirs and its fellow conspirators, in the manner detailed above, and by its bad faith towards appellee, Shell Petroleum Corporation “forfeited” all rights, title or claim “under its contract with appellee, executed on the 12th day of January, 1931”; (6) the acts committed by Shell Petroleum Corporation were fraudulent and to appellee’s injury, and were within the provisions of Arts. 430 and 430a of the Penal Code, Vernon’s Ann.P.C. arts. 430, 430a; (7) under its contract with the Gregory heirs, and its fellow conspirators, Shell Petroleum Corporation acquired no title or interest in appellee’s land; it was not necessary for Shell Petroleum Corporation to make the contract with the Gregory heirs “in aid or protection of an estate which it did not own” or acquire under its contract with appellee; all interests in the land were owned by appellee and subject to its conditions conveyed by him to Shell Corporation by the contract dated the 12th day of January, 1931, that is to say, that contract was an optional contract and under its provisions Shell Corporation had the right to acquire all right, title and interest in the land covered by its provisions; (8) by instigating the Gregory heirs to assert a f-alse and fraudulent claim to appellee’s land and to trespass thereon, and to assert a false claim to his property, Shell Petroleum Corporation “has forfeited and abandoned all claims to further hold optional rights to acquire” appellee’s property, and has “estopped” itself to assert any rights under that contract; (9) appellee alleged that “through these unlawful acts, his title has become clouded by the defendant, and its marketable value greatly impaired. That as a natural consequence of such fraudulent assertions so precipitated against him he is compelled to resort to otherwise needless expenses incidental to the remedies herein sought against them. Plaintiff therefore alleges that he has been damaged by reason of the premises in actual damages in excess of one hundred thousand ($100,-000) dollars, and that there should be awarded against the promoters of this conspiracy, as hereinbefore alleged, exemplary damages in the sum of one hundred thousand ($100,000) dollars, particularly as to the defendant, Shell Petroleum Corporation, whose managing officials and executors are alleged to have authorized, participated in and procured the illegal acts and conduct herein complained of, whereby said corporation should be made to respond therefor.”

Appellee prayed that the contract executed to Shell Petroleum Corporation by the Gregory heirs, and its fellow conspirators, be cancelled as casting a cloud upon his title; that his contract with Shell Petroleum Corporation, dated the 12th day of January, 1931, be cancelled, and, in connection with this prayer, appellee offered “to do equity”; he prayed further for his actual and exemplary damages and for general and special relief, and for costs of suit. The defendants plead general and special demurrers, general denial and pleas of not guilty.

Appellee correctly summarizes the pleadings of the Gregory heirs, as follows:

“The Gregorys, through J. P. Miller and C. F. Stevens as counsel, filed formal answer October 13, 1936. Wier and Noland filed a similar answer December 11, 1936. The Gregorys then filed a first amended answer and cross-action on December 11, 1936. It consisted of the following namely, Exceptions 1, 2 and 3 to the plaintiff’s petition as insufficient, and in the fourth and fifth paragraphs a general denial and plea of not guilty was made.
“In the sixth paragraph it is alleged that a deed signed by Sam Gregory, Mary Gregory and the other Gregory heirs, dated 3rd day of September, 1921, to Howth and O’Fiel, recorded in Jefferson County, was made pursuant to the employment of Howth and O’Fiel in the defense of Ralph Gregory to defend him against a charge of murder. The allegation is in this language :
“ ‘That under said employment the said Howth and O’Fiel were to be paid the sum of one thousand ($1,000.00) dollars as attorneys’ fees for defending Ralph Gregory, and whatever the form of the instrument signed by the parties above named, apparently in the form of a conveyance, it was so signed by the said grantors and it was so understood by all the parties connected therewith, particularly the said Howth and O’Fiel, to be a mortgage to secure the payment of the said one thousand ($1,-000.00) dollars attorneys’ fees. That the said Mary J. Gregory and the other parties signing said instruments were lead to believe by said Howth and O’Fiel that they had actually signed a mortgage upon said premises described in said instrument.’
“This paragraph of the answer contains a description of the land embraced in said instrument.
“The paragraph winds up with this language :
“ ‘But that the said Howth and O’Fiel, being lawyers, over-reached and mislead the said defendants in this cause who appear to have signed said instrument. That these defendants had no knowledge that they had signed what purported to be a deed until about the - day of July, 1936.’
“In the seventh paragraph of this answer in reply to the plaintiff’s plea of limitation, they pleaded the minority of three of the children of Gregory, and in the eighth paragraph pleaded the coverture of certain of the children, giving the dates of their marriage, etc.
“The ninth paragraph, after notifying the plaintiff to produce the deed on the trial, repeated the allegation that it was ‘intended to be and was understood to be a mortgage to secure said debt to Howth and O’Fiel, wherefore the same is not such an instrument as will support the statute of limitation by adverse possession.’
“The tenth paragraph alleges that Howth and O’Fiel ‘had entered into a conspiracy to defraud the defendants and to acquire an illegal title to said lands.’
“The eleventh paragraph alleges that David O’Fiel, about the years 1921 to 1929, ‘represented the said Mary J. Gregory, as administratrix of said estate of Thomas M. Gregory, deceased, both in the Probate Court of Jefferson County, Texas, and in the District Court of Jefferson County, Texas, in which proceedings the land described in said purported deed to the said Howth and O’Fiel were involved in attempts to foreclose vendor’s liens against the same, and that the said Howth and the said O’Fiel recognized the claim of the estate of Thomas W. Gregory to said property and the claim of these defendants, their actions in these regards showing that they held no hostile claim against these defendants.’
“The allegation concludes with the statement that such situation created a fiduciary relation during the period of 1921 to 1930, and that any rights acquired by Howth and O’Fiel inured to their benefit.
“The twelfth paragraph of this answer sought to bring in O’Fiel and his wife and a large number of other persons who had acquired interests in the land and to make them parties to this suit, and winds up with the allegation that according to their paragraph No. 6 they had only executed a mortgage in the form of a deed and sought judgment for $50,000.00 damages and for the possession of the land.
“The thirteenth paragraph re-asserts ‘all the facts set forth in paragraphs 1 to 11 of the foregoing answer and pray that the same may be considered a part of this cross-action.’
“The prayer concludes' the paper by asking' that said instrument to Howth and O’Fiel he ‘adjudged to be a mortgage and the purported deed be set aside.’ They prayed that 'all these new parties be made parties to the cross-action and ‘for title and possession of the above described premises and that writ of restitution issue and for such other and further rents, damages and costs of suit, and for such other and further relief, special and general, in law and in equity, that they may be justly entitled to, etc.’ ”

The second amended answer of the Gregorys offered to do equity and pay off the Broussard and Ward indebtedness which appellee had discharged. This answer also eliminated the pleas of the prior answer which undertook to set aside the mortgage.

Plaintiff then plead a number of exceptions and the statutes of three, four and ten year limitations. During the progress of the trial the Gregorys filed a trial amendment wherein they alleged:

“Now come and offer to do equity and to pay to the plaintiff any liens of any character owned or held by him, particularly, against these defendants, under those certain vendor’s lien notes and judgments, rendered in favor of J. E. Broussard, and of M. L. Ward, against Mary J. Gregory as the administratrix of the estate of Thomas M. Gregory, deceased, being the identical judgments offered in evidence by the plaintiff in this case during the trial thereof and prior to the filing of' this trial amendment, and these defendants stand upon this trial amendment solely- as alleging and averring their right to exercise the equity of redemption against said liens and judgments. And in this connection they say that they stand ready and willing and offer to pay off said judgments to the plaintiff, he being the owner of the same, in full; wherefore, they pray that they go hence without day and that the plaintiff take nothing by his suit, and that said defendants be adjudicated to be the owners of the premises in controversy upon their paying off and discharging said liens and judgments. They further pray for full general and equitable relief.”

By his charge the court instructed the jury:

“Gentlemen of the Jury:
“The court holds in this case as a matter of law that the title to the land involved in this controversy is, under the undisputed evidence, invested in C. W. Howth, the plaintiff.”
The charge submitted to the jury the following issues, all answered in the affirmative :
“Special Issue No. 2: Do you find, from the preponderance of the evidence, that the Shell Petroleum Corporation sought to procure the lease executed by what is known as the Gregory heirs and Noland and Wier to itself for the purpose of asserting an adverse claim against the plaintiff, C. W. Howth?
“Special Issue No. 3: Do you find, from the preponderance of the evidence, that Ford Clevenger cooperated with Wier and Noland in securing the lease in controversy to the Shell Petroleum Corporation?
“Special Issue No. 4: Do you find, from the preponderance of the evidence, that Ford Clevenger shared with Noland and Wier in the financial receipts from the lease executed by the Gregory heirs and by Noland and Wier to the Shell Petroleum Corporation?
“Special Issue No. 5: Do you find, from the preponderance of the evidence, that the Shell Petroleum Corporation, by and through its representative, Ford Clev-enger, instigated the assertion of claim for said property involved herein on behalf of the Gregory heirs against the plaintiff, C. W. Howth?
“Special Issue No. 6: Do you find, from the preponderance of the evidence, that the Shell Petroleum Corporation acted maliciously in instigating (if it did instigate) the assertion of claim for the property involved herein on behalf of the Gregory heirs against the plaintiff, C. W. Howth?
“Special Issue No. 16: Do you find, from the preponderance of the evidence, that the sales value if any of the property herein involved was defeated by the assertion of the claim to the said property by the Gregory heirs?
“Special Issue No. 17: Do you find, from the preponderance of the evidence, that the defeat of the sales value, if any, of said properly involved herein was directly and proximately caused by the acts of the Shell Petroleum Corporation in instigating (if it did instigate) the Gregory heirs to assert an adverse claim to said property ?”
To question 18: “What do you find, from the preponderance of the evidence, to he the reasonable amount of the damages, if any, sustained by plaintiff, C. W. Howth, by the defeating of the sales value of said property (if it was so defeated) ?” The jury answered $65,000. By its answer to question 19, the jury found that Shell Petroleum Corporation should pay appel-lee “some amount of money as exemplary or punative damages”; and by its answer to question No. 20, fixed the amount at $50,000. Questions 7 to 15 submitted to the jury the issues of attorney’s fees and expenses incurred by appellee in prosecuting this suit, and the “loss of credit” suffered by appellee by reason of the false and fraudulent claims “advanced by Shell Petroleum Corporation against his land”; the jury assessed the following damages on these issues: Attorney’s fees, $15,000; expenses, $1,000; damage to credit, $10,-000.

On the facts found by the court, it was decreed in his judgment that appellee “is and was invested” with the legal title to the land described in his petition, and in the cross action of the Gregory heirs, and that he “was vested with the legal title to said land a long time prior” to the time the Gregory heirs executed their powers of attorney, and prior to the execution of the mineral leases to Shell Petroleum Corporation. And it was decreed that the “powers of attorney and said mineral leases be, and same are hereby cancelled, set aside, vacated and held for naught”; it was further decreed, as a matter of law on the facts found by the court, that the Gregory heirs take nothing on their cross action against appellee as to the three tracts of land described in their cross action, a part of the A. Horton survey in Jefferson County, tract No. 1 described as containing 26½ acres, and tract No. 2 described as containing 61.5 acres, and tract No. 3 as containing 156.4 acres — the land thus described included the land covered by appellee’s contract with the Shell Petroleum Corporation, dated the 12th day of January, 1931; the judgment “divested” the title to the land out of the Gregory heirs and “invested the title in appellee”; the Gregory heirs were perpetually enjoined from asserting any claim to the land as described in their cross action.

On the issues made by appellee against Shell Petroleum Corporation, Noland, Wier and Clevenger, the judgment recited all the issues submitted to the jury, and their answers thereto, and then awarded judgment in favor of appellee,, against Shell Petroleum Corporation, Noland, Wier and Clevenger, jointly and separately, for the following items: attorneys fees, $15,000; expenses, $1,000; damages to his credit, $10,000; actual damages, $65,000; and exemplary damages, $50,000.

By the judgment, the contract executed by appellee to Shell Petroleum Corporation, on the 12th day of January, 1931, was “cancelled, set aside, vacated and held for naught” on the following findings made by the court, and recited in his judgment:

“And it further appearing to the court from the answers of the jury to the special issues above set forth that the said Shell Petroleum Corporation, cooperating with the said O. H. Noland, Ford Clevenger and C. O. Wier, procured and instigated the procurement of the power of attorney and the mineral leases hereinabove set forth for the purpose of setting up an adverse claim to the plaintiff to the land and premises described herein; and it further appearing to the court from the answers of the jury to the special issues above set forth that the defendant, Shell Petroleum Corporation, was actuated by actual malice in so doing; and it further appearing to the court that said Shell Petroleum Corporation attorned to said adverse claimants and recognized their said alleged claim to the land against the claim of plaintiff, C. W. Howth; and it further appearing that the contract, heretofore executed between the plaintiff and the said defendant, Shell Petroleum Corporation, dated January 17, 1931, recorded in Vol. 353, page 324 of the Deed Records of Jefferson County, Texas, is a mere option to acquire an oil and mineral lease and is not a conveyance in pres-entí of any portion or of any interest in the oil, gas and other minerals in and under said land herein described, and that the said option contract, together with the confirmation of the purported lease executed by the said C. W. Howth dated May 2, 1933, recorded in Vol. 378, page 205 of the Deed Records of Jefferson County, Texas, should be in all things cancelled, set aside and held for naught.”

The motions for new' trial of all the defendants were overruled on the 29th day of March, 1937. Shell Petroleum Corporation duly perfected its appeal by filing supersedeas bond. All the other defendants, except Clevenger and Susie B. Summers, who did not perfect an appeal, perfected their appeals by filing affidavits of their inability to pay costs; most of these affidavits were filed on the 29th day of April, 1937, more than 20 days, but within 30 days, from the date the motions for new trial were overruled; the affidavits did not recite that the affiants lived out of Jefferson County, where the case was tried; the district court of Jefferson County by law could continue, and in fact did continue, in session more than eight weeks.

On Rehearing. Opinion.

Appellee has moved to dismiss the appeal of the Gregory heirs on two grounds; (a) they failed to perfect their appeal by filing appeal bonds, but filed in lieu thereof affidavit of inability to give bond for costs, and under Art. 2092, Vernon’s Ann.Civ.St., designated by appel-lee as the City Practice Act, no provision is made for appeals on pauper’s affidavit; and (b) if in error in that contention, he makes the further point that the affidavits of inability to pay costs were not duly filed since they were filed more than 20 days after judgment overruling the motion for new trial, and it was not shown that said appellants were non-residents of Jefferson County. Both contentions are overruled. True the City Practice Act makes no specific provision for appeals by filing affidavit of inability to pay costs. But it is the clear intent of our statutes that any litigant desiring to appeal his case, and being unable to pay the costs, shall have the right to appeal his case by filing the required affidavit. The affidavit is in every respect in lieu of an appeal bond, and is subject to the same rules with respect to the time of filing.

The second point is also overruled. On the recitals in appellee’s petition filed by him as plaintiff in. the trial court, all of the appellants except two were non-residents of Jefferson County. These allegations invoke the provisions of Art. 2253, Vernon’s Ann.Civ.St., allowing the affidavits to be filed within 30 days after giving the notice of appeal.

Appellee urges another point against the right of the Gregory heirs to appeal,, to the effect that they failed to bring forward in their motion for new trial assignments of error against the judgment of the-lower court sufficient to support their propositions of error, as set forth in their brief. The judgment was rendered against the Gregory heirs on an instructed verdict.. The trial court instructed the jury that the Gregory heirs had no title and upon the-court’s finding of no title in them whatever title they may have was divested out of them and invested in the appellee by the-court’s judgment. .An instructed verdict,, to the same extent as a judgment sustaining a general demurrer, constitutes fundamental error. This was the holding of the-Commission of Appeals in the Harlington Land & Water Co. v. Houston Motor Co., Tex.Com.App., 209 S.W. 145; opinion approved by the Supreme Court. That holding has not been limited or qualified by any subsequent holding of our Supreme Court. See also Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270. The statement made by appellants in their brief is sufficient to invoke the doctrine announced, by the cited cases.

Having reached the conclusion that certain other holdings were erroneous, we-have withdrawn the original opinion ar.d. are- substituting this one in order to include a discussion of the following matters.

On original submission, we held: that the evidence raised an issue of fact for the jury that the deed from the Gregory heirs to Howth & O’Fiel was intended as a mortgage. On further study of the-evidence we are convinced that such holding was erroneous. The deed in question, was made in 1921 and on its face purports, to be an absolute conveyance of the land. At the time the deed was made there was considerable indebtedness against the land and the Gregorys, in fact, had only an equity in it, which equity was probably less, than $1,000. One of the Gregory boys, Ralph, was in jail under a felony charge- and C. W. Howth and D. E. O’Fiel, then-partners in the practice of law under the-firm name of Howth & O’Fiel, were employed to represent him, and did represent him. Miss Hazel Gregory, a sister of Ralph, and then only 18 years old, made-the trade with Mr. Howth for his firm to* represent Ralph, and secured the execution of the deed by the others who signed it. Appellants’ testimony was to the general effect that Mr. Howth demanded a fee of $1,000; that the Gregorys did not have the money but “put up the land” to Howth & O’Fiel to secure payment of the fee; some of the other Gregorys who signed the deed but who did not talk to Mr. Howth “understood” that the land was being put up or pledged as security for the fee. We think appellants’ testimony on the point, viewed as a whole in the light of attendant circumstances and disregarding the testimony offered by appellee to the effect that the deed was an outright conveyance, was not of that clear and satisfactory character required to raise the issue that a deed absolute on its face was in fact a mortgage. Appellants’ evidence left a number of important questions unanswered. If the conveyance was intended merely to secure the $1,000 debt, why was it not put in the form of a deed of trust? No apparant reason, such as a desire to evade the homestead law, existed for making the lien in the form of an absolute conveyance. When was the debt to be paid? What interest was it to bear? Why was no note executed to evidence it, as is the usual practice? Were the grantees simply to take and hold the land indefinitely until such time as the Gregorys saw fit to pay the debt? The whole testimony on the lien theory is nebulous, indefinite and uncertain, and wholly fails to negative the reasonable inference that any discussion about putting up the land as security, which might have occurred in the preliminary negotiations between Miss Gregory and Mr. Howth for the employment of Howth & O’Fiel, were not effectuated but were abandoned and the deed conveying the land executed instead. For 15 years, and until this suit was filed, there was no effort on the part of the Greg-orys to pay the debt, or any part of it. There is no evidence that any demand was ever made on them for its payment. They never rendered the land for taxes after 1921. Mr. Howth took immediate possession of the land, farmed it each year, paid off the indebtedness against it and exercised full and exclusive rights of ownership over it. In 1929, he built a tenant house on it at a cost of more than $600, which he paid. In the meantime he bought Mr. O’Fiel’s half interest, leased the land for oil, and conveyed portions of his royalty interest to others. Thus Mr. Howth dealt with the land as his own for some 15 years, and a good part of that time some of the Gregorys lived within a few miles of it and seemed to have raised no-question as to his title. Under these undisputed facts, no issue of mortgage was raised. Even if it be conceded that the Gregorys understood that the deed was a mere mortgage, such understanding on their part would not change the deed to a mortgage, in the absence of an understanding on the part of the grantees to accept it as such. “It takes two to make a trade.” Of course, if the Gregorys were induced to execute the deed under a mistake of fact and in the belief that it was a mortgage, such fact would be grounds to set it aside in a suit seasonably brought for the purpose. But no such issue is involved here. In this suit the attempt is simply to show that the deed is not what it purports on its face to be, but instead that by agreement of the parties it was and is a mortgage. We think the holdings of our courts deny the contention that the evidence as a whole was sufficient to raise that issue. Howard v. Zimpelman, Tex.Sup., 14 S.W. 59; Byrd-Frost, Inc. v. Elder, Tex.Civ.App., 92 S.W.2d 1134; Gazley v. Herring, Tex.Sup., 17 S.W. 17; Brewster v. Davis, 56 Tex. 478.

Certain of the Gregory heirs did not join in the deed of 1921 to Howth & O’Fiel. Of course as to those who did properly join in that conveyance the deed passed their title under the above holding. As to those of the Gregory heirs whose title was not passed by that deed, there is the question of limitation title under appellee’s plea of the ten year statute of limitation, Vernon’s Ann.Civ.St. art. 5510. Appellee’s evidence of continuous, adverse occupancy and use of the land in controversy was sufficient to establish title by limitation, as a matter of law, as to all of the Gregory heirs except Ike Gregory and Billie Gregory Bourgeois, who were under the disability of minority up until less than ten years before the filing of this suit. As to these two heirs, appellee acquired title neither by deed nor by limitation. He asserts title under the doctrine of rescission of the executory deed executed to their ancestor, T. W. Gregory, and under which they claim. Under the deed to their ancestor, as and when executed, the claim of all of the Gregory heirs was merely exe-cutory, the vendor owning the superior title and the right of rescission. But suit was instituted on these notes by the holders and the liens foreclosed. See Gregory v. Ward, 118 Tex. 526, 18 S.W.2d 1049. While under the holding in that case, the sale made under the district court judgment of foreclosure was insufficient to divest title, still it constituted an election of remedies by the then holder of the notes, and to whose rights Howth succeeded by purchase. By the foreclosure the right of rescission was lost under the doctrine of the election of remedies. Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780. Under this holding, Ike Gregory and Billie Gregory Bourgeois still own their interest as heirs under their father, T. W. Gregory, subject to the payment of their prorata part of the original vendor’s lien notes and interest, which they tendered to appellee as a mortgagee in possession. This holding, ■of course, in no wise affects our holding ■as to appellee’s claim of limitation against ■the other Gregory heirs. Herndon v. Yount-Lee Oil Co., Tex.Civ.App., 119 S.W.2d 171, writ refused.

Appellants contend that appel-lee’s suit for damages is in the nature of a •suit for slander of title and that appellee wholly failed to make out a case entitling him to damages, either actual or exemplary, for the reason, among others, that there was neither allegation nor proof of any pending sale which was defeated with resulting loss to appellee by reason of the alleged slander. In slander of title cases it is generally held necessary to plead and prove a pending sale which was defeated by the slander as a prerequisite to recovery. 37 C.J. 131, 134; 27 Tex.Jur. 791; Houston Chronicle Publishing Co. v. Martin, Tex.Civ.App., 5 S.W.2d 170. But that rule does not deny recovery of damages in this case. As we construe the record, this is not an ordinary slander of title case, as for instance where one occupying no fiduciary relationship to another wrongfully and maliciously asserts against him an apparent but groundless claim of title and thereby defeats a pending sale. In this case, under the undisputed facts, appellant Shell Petroleum - Corporation took an oil and gas lease on appellee’s land in 1931, after examination of his title, and paid him only a nominal consideration therefor. It was an “unless” or “wildcat” lease, imposing no drilling obligation or rental payment except at the election of lessee. From time to time its attorneys made certain objections to the Howth title, and he in- good faith cooperated with them in curing record defects pointed out, and succeeded in removing most of them. It renewed its lease from year to year by paying the nominal renewal fee of $1 per acre in lieu of drilling. That lease was more than the conveyance of a determinable fee interest in the minerals. It created the relationship of lessor and lessee between appellee and the Shell Petroleum Corporation and, as lessee, the Shell Petroleum Corporation owed the utmost good faith to appellee .in its dealings with the property. Yet, under ap-pellee’s theory of the case, and the findings of the jury, it breached its obligations to the serious damage of appellee. Through its agents it approached the Gregorys, who up to that time-had asserted no claim adverse to appellee, and secured from them powers of attorney to Noland and Wier by virtue of which the adverse claim was actively asserted. It later took to itself an oil and gas lease from the Gregorys, covering the very same interest which it held under lease from appellee Howth. Under that lease they asserted not merely the interest of the two minors but the interest of the other Gregory heirs who denied the validity of the deed to Howth & O’Fiel, and disputed in toto Howth’s title to the land and to the interest which he purported to convey by the lease to the Shell Petroleum Corporation. At the time this adverse interest was acquired by appellant, it had invested in the property only the very nominal consideration paid to Howth. It had not developed the property or made any investments on it which it was forced in extremis to undertake to protect by such methods. Had it concluded that the Gregory title was superior to the Howth title, and so had promptly surrendered back to Howth the lease which it had obtained from him, it would occupy a different position before us. But it did nothing of the kind. It retained the Howth lease which completely denied his right to lease the property to others or to obtain development of it. It is a matter of common knowledge that when new developments in the discovery and production of oil are in progress the lease and sale value of nearby lands fluctuate greatly. A piece of land may be worth many thousands of dollars today and next to nothing tomorrow. Hence it is of prime importance to the land owner in such situation 'that he be free to deal with his land promptly and deliver title, or -make contracts with reference to it without delay. This is a valuable right. And appellants’ conduct denied that right to appellee. The evidence shows that oil developments and discovery of oil had occurred in the near vicinity, and that the property in question had greatly enhanced in value after Shell’s lease was taken in 1931. Under these facts we believe that appellants are liable to appellee in damages under the principle announced in Humble Oil & Refining Co. v. Kishi, Tex.Com.App., opinion adopted by Supreme Court, 291 S.W. 538. It is our conclusion that appellee plead a justiciable cause of action, and had he owned all of the title, as found by the court, it is our further conclusion that the evidence was sufficient to support the judgment for the actual and exemplary damages assessed by the jury.

It appears on the face of the judgment that actual damages were awarded appellee on the theory that he was the owner of the absolute title to all the land in controversy. Under our holding, ap-pellee owned only nine-tenths of the title, Ike Gregory and Billie Gregory Bourgeois owning an undivided one-twentieth each. The next question that presents itself to us is appellee’s right to recover. damages under allegations of ownership of the entire title and the finding by the court to that effect when in fact he owned only nine-tenths of the title. The jury awarded appellee $65,000 actual damages. Can this court affirm the judgment in appellee’s favor for the actual damages awarded, less the interest owned by Ike Gregory and Billie Gregory Bourgeois? This question is answered in the negative by the holding of the Commission of Appeals in Humble Oil & Refining Co. v. Kishi, supra.

From what we have said, it follows that the judgment of the lower court in all respects must be reversed and the cause remanded for a new trial, except that part which denies recovery of the Gregory heirs, which will be affirmed except as to Ike Gregory and Billie Gregory Bourgeois.

In view of a new trial, we make the following conclusions on the propositions advanced by the Shell Petroleum Corporation in its brief: (a) The contract executed by appellee to the Shell Petroleum Corporation on the 12th day of January, 1931, was the ordinary lease contract; it was not, as contended by ap-pellee, a mere option to acquire title to the minerals, but was a conveyance of the minerals. We gave that construction to leases of the character in issue in Bailey v. Shell, Tex.Civ.App., 95 S.W.2d 982, and Jones v. Bevier, Tex.Civ.App., 59 S.W.2d 945; writs refused in both cases, (b) After executing his lease to Shell Petroleum Corporation, appellee conveyed a fractional interest in his royalty to other parties; these vendees of appellee were necessary parties to his action to cancel the lease. Sharpe v. Landowners Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435. (c) Appellee’s lease contract to Shell Petroleum Corporation contained the following provision : “10. If lessor owns a less interest in the above described land, than the entire, undivided and * * * qualified fee simple estate therein, then all royalties and all rental and other moneys herein provided shall be paid or delivered to lessor only in the proportion which lessor’s interest in said land bears to the entire undivided and unqualified fee simple estate therein.”

Under this condition of the lease, the mere fact that Shell Petroleum Corporation may have taken lease contracts from Ike Gregory and Billie Gregory Bourgeois did not make them a trespasser or wrongdoer against the rights of appellee; as appellee’s cotenant the taking of the lease did not, as a matter of law, constitute a violation of the duty they owed him. Roberts v. Thorn, 25 Tex. 728, 78 Am.Dec. 552; McFarlin v. Leaman, Tex.Civ.App., 29 S.W. 44. It had a perfect right to lease or purchase the interest of any cotenant of appellee. What we have held is that it had no right to put in motion a claim which denied in toto its lessor’s title and actively assert it against him, while at the same time claiming all rights, title and benefits acquired from him by his lease.

Under its lease from appellee, Shell Petroleum Corporation was his cotenant; that contract did not create between them, in all its relations, the relationship of landlord and tenant. Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021; Hager v. Stakes, 116 Tex. 453, 294 S.W. 835; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ.App., 276 S.W. 936; Humble Oil & Ref. Co. v. McLean, Tex.Civ.App. 268 S.W. 179; Id., Tex.Com.App., 280 S.W. 557. But, if the relation between appellee and Shell Petroleum Corporation in certain respects be construed as that of landlord and tenant, under the provisions of the contract quoted above, Shell Petroleum Corporation had the right to acquire any interest in the land not owned by appellee and attorning to the owner of that interest would not, as a matter of law, constitute a repudiation of the relationship of landlord and tenant as between it and appellee. Roberts v. Thorn, supra.

The evidence was sufficient to raise the issues submitted to the jury by the questions copied above.

Counsel’s fees, expenses in preparing the case for trial, and the loss of credit, on the facts of this case, are not recoverable as actual damages; they are not considered proximate results of the wrong complained of; evidence on these issues may be received in support of punative damage. Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202.

Without bringing forward the specific points made by appellants against the court’s charge, defining terms, complaining that the charge was on the weight of the evidence, etc., these propositions are overruled, as are also the assignments against the admission of evidence and the failure of the court to receive certain evidence.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded for a new trial, except as to the Gregory heirs other than Ike Gregory and Billie Gregory Bourgeois.