author: WALTHALL, Justice.

text:
    URRUTIA et ux. v. URRUTIA.
    No. 4004.
    Court of Civil Appeals of Texas. El Paso.
    May 16, 1940.
    Rehearing Denied June 13, 1940.
    Spears, Conger, Baskin & Spears, of San Antonio, for appellants.
    Ladon & Finch, of San Antonio, for ap-pellee.
   WALTHALL, Justice.

This case involves the custody of a minor child, a girl, Maria Amapola Urrutia, horn to Adolfo and Anna Maria Trevino de Urrutia, husband and wife, and appellants herein.

•The case was begun by appellants by filing in the court on July 12, 1939, an application for a writ of habeas corpus, in which they sought the care, custody and control of said child from appellee-and her former husband, Carlos Urrutia, a brother of appellant Adolfo Urrutia.

The case was tried to the court without a jury. The court made and filed findings of fact and conclusions of law, from which, and from the uncontroverted facts in the record generally, we more briefly than in the record state the pertinent facts of the case.

Appellants are the natural parents of the minor child, Maria Amapola Urrutia. Appellants were legally married on January 4, 1932. The child, the subject matter of this suit, was born to appellants in San Antonio, Texas, on November 14, 1932, at the home of the father of appellant Adolfo Urrutia. The child was named Maria Amapola Urrutia; the child is now called Elizabeth Poppy Urrutia at the home of her adoptive parents.

On January 6, 1933, with the consent, expressed in writing, by the parents of said child, the consent in writing filed in the adoption proceedings, appellee Elizabeth Jones Urrutia filed an application in the District Court of Bexar County to adopt the child in controversy and, after an investigation and report, on February 6, 1933, the court entered an order granting leave to Carlos Urrutia and wife, Elizabeth Jones Urrutia, to adopt the said child, the judgment order of the court reciting: “that said adoption be, and is hereby effective as of this date, and that all legal relationship and all rights and duties between said child and its natural parents are hereby ended and determined, and that said child shall from henceforth be deemed and held to be the child of said petitioners and each of them, as fully as though born to them in lawful wedlock.”

The trial court then and in that connection found that all of said adoption proceedings fully and legally conformed to the statutes of this State in effect pertaining to the adoption of children, and that the. judgment was final, meaning, as we understand it, that there had been no change or modification of the judgment or appeal therefrom.

The trial court found that a divorce was granted in 1937 by the District Court of Bexar County to Elizabeth Jones Urrutia against Carlos Urrutia, and that in the divorce decree the court entered an order that Elizabeth Jones Urrutia be given full and exclusive custody and control of said child. The court also found that about January,’ 1935, a second child (apparently ■of appellants) known as Mary Sharlene Urrutia, had been adopted by Carlos and Elizabeth Jones Urrutia, and had been under the sole and exclusive care, custody, control and possession of said Elizabeth Jones Urrutia.

The court found that since the above mentioned decree of divorce, under said decree, Carlos had made payments for the -support of the two children, and at great length and in detail as to the facts made other findings as to the two children, which findings we think are not necessary to state here, other than to say that the child involved here had received the best of care, and that Elizabeth Jones Urrutia had bestowed upon her the affection and attention of a- natural mother, and had brought the child up in a clean and wholesome atmosphere at school and elsewhere, the court finding that the bond of affection between the child and the adoptive mother was notably great; and in fact the circumstances and conditions of the two children are such that “it would be detrimental to the best interest and future welfare of the child to be taken from the appellee, and the court in the findings stated the plans appellee had in contemplation for the child.” Such future plans, however, are not before us for consideration.

We think, in justice to appellants, to state that the evidence clearly shows that during all of such times the appellant Adolfo Urrutia had to and did depend upon his father and his brother Carlos Urru-tia for financial maintenance and support for funds with which he attended Tulane University; that in June, 1934, subsequent to such adoption said appellant completed his University course, and began the service of a one year interneship at Robert B. Green Hospital in San Antonia, Texas, for which services he received only $10 per month, and that during all of such time he was still dependent upon his father and brother for his maintenance and support.

The evidence shows, we think, though not in the findings of the court, -that appellants are at this time financially able to properly care for the child in controversy.

The trial court concluded that it would be to the advantage and best interest of the child to permit it to remain in the care, custody and control of the respondent, Elizabeth Urrutia, and so ordered.

After the evidence was concluded the trial judge wrote a letter, made a part- of the record, addressed to the attorneys on both sides of the case, in which he earnestly requested that the case be appealed, “so that the three Judges of the Court of Civil Appeals might assist by lending their mature judgment to the solution of the problem” involved.

The case is now before us on appeal.

For brevity we will designate the parties in the suit as appellants and appellee as in the briefs.

The evidence in this case covers 371 pages of the record. Appellants submit eighteen propositions in support of their contention that the best interest and future welfare of the child involved in this controversy would be subserved by restoring the child to appellants, the child’s natural parents. Appellants’ first eight propositions are based upon what appellants contend to be an “erroneous and prejudicial finding of fact,” and to the effect that when appellee first took possession of the child for the purpose of adoption, the court found that “the said child was ill and that Elizabeth Jones de Urrutia nursed the child day and night for a period of some six months until the said child became a strong, sturdy and healthy baby; that there were illnesses common to children, and that through all of these illnesses the said Elizabeth Urrutia, sometimes with the aid of a nurse and sometimes without, tended to, treated and nursed the said child, Maria Amapola Urrutia.”

The propositions are to the effect that the finding is not sustained -by the evidence and should be disregarded by this court; that the finding is probably made the basis of other findings.

We have studied the entire record, and believe from the great mass of evidence the finding is sustained and is not erroneous to.the extent claimed. Without stating'the evidence, it tends to show that, in addition to a stomach trouble, it was necessary that the. child wear a truss or navel belt until she. was about five years old. Another witness than appellee said the child was very ill, her limbs were tiny, her abdomen was distended, and that she did not think the child would live.

The trial court found that “to destroy its present relationship would work a great and unnecessary hardship on the child and might materially affect its future; that the child’s welfare might be greatly impaired by making any change in its relationship due to the fact it had been and was growing up as a member of the family of the respondent.” The court further found that the child “knows no other mother or parents, and that it would be much to the advantage of the child to permit it to remain in the custody of Elizabeth Urrutia, respondent, who is in all respects better suited and better fitted to have the care, custody and control of the child than petitioners.” It is true that the court, in his letter to the attorneys above referred to, stated that, “the evidence in this case shows all parties to be good, substantial people, and that little Poppy has two good homes available to her.” We do not think the statements inconsistent with each other. The court, as we conceive it, was simply grouping the facts that go to make up an ultimate issue to be decided by the court, the grouping of the facts must be distinguished from the issues upon which the court bases the judgment.

No question was raised in the trial court or is suggested here that the child was in all'respects legally and effectively adopted, or that she is not properly in the care and control of appellee, other than as claimed by appellants under the issues in the present suit.

The present statute pertaining to the adoption of a child is Article 46a of Vernon’s Ann.Civ.St, and omitting all sections under said article prior to Section 9, which Section 9 states the status of the adopted child, the pertinent portions of that section to the facts of this case we state. The section is lengthy, and we state only such portions thereof as seem to apply to the issues here, the present right of the litigants to have the care and custody of the child involved in the controversy as against appellee, the adoptive parent, under the evidence and facts found by the trial court.

Section 9 of the article reads: “When a child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine * * *. Said child shall thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as fully as though born to them in lawful wedlock. Said child shall be entitled to proper education, support, maintenance, nurture and care from said parent or parents by adoption, and shall inherit from said parent or parents by adoption, and as the child of said parent or parents by adoption, as fully as though born to them in lawful wedlock; subject, however, to the provisions of this Act.”

Section 7 of Article 46a provides that nothing in this Act shall prevent a court of competent jurisdiction from tak-' ing away from such adoptive parent the custody of the adopted child and awarding the child to the natural parents upon proof of the bad moral character of such adoptive parent, or upon proof of abuse, neglect or ill treatment of such adopted child by the adoptive parent, but even prior to the provision of Section 7, the courts have not hesitated to exercise such power. At all times the best interest of the child has been considered the primary consideration. Legate v. Legate, 87 Tex. 248, 28 S.W. 281. Nor is such power limited to the precise grounds stated in the above stated section of the statute. Rayon v. Landry, Tex.Civ.App., 289 S.W. 745. But certainly the statute contemplates that there must be proof of some fact or facts, whether of bad moral character of the adoptive parent or proof of abuse, neglect or ill treatment of the adopted child by the adoptive parent, that satisfies the trial court such custody of the adoptive parent is not for the best interest of the child; otherwise, the statute as to adoption would be meaningless.

We have found nothing in the record that tends to establish any such fact, circumstance or condition that should suggest to the trial court to take the child from the custody of the adoptive parent and award its custody to the natural parents.

The power of the court to exercise such jurisdiction, we think, must be found in the proof. Here such fact, circumstance or condition is neither found in the pleading nor in the evidence, and such is manifest in the court’s finding.

While we greatly sympathize with the natural parents of the child in their desire to have the child in their home, the duty of the trial court and of this court is to declare and administer the law of adoption as we find it to be.

We have carefully reviewed and considered each and all of the exceptions presented in appellants’ brief and believe they show no reversible error.

The case is affirmed.

On Motion for Rehearing.

In the opinion this Court referred to the second child, Mary Sharlene Urrutia, adopted by appellee as “apparently” the child of appellants. This was error. Mary Charlene was not the child of appellants, and we here correct that statement. For some reason she was mentioned in the suit as adopted by appellee, but no judgment was rendered as to Mary Sharlene.

Eliminating the reference to her as apparently the child of appellants, the motion in all other respects is overruled.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    MOORE v. MOORE.
    No. 3674.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1940.
    Ed. Arnold, of Houston, and Chrest-man, Brundidge, Fountain, Elliott & Bate-man, of Dallas, for appellant.
    Alvin H. Lane and Wallace H. Savage, both of Dallas, for appellee.
   WALKER, Chief Justice.

This was an action by appellee, Maurine Moore, against appellant, Clifton F. Moore, to recover the sum of $2,332. The appeal was prosecuted by appellant to the Dallas Court of Civil Appeals, from the judgment of the lower court overruling his plea of privilege to be sued in Harris county. The case is on our docket by order of transfer by the Supreme Court.

The issues on the plea of privilege were tried to the court without a jury on the following facts, constituting the entire statement of facts: “Mr. Lane: This is a suit by Mrs. Maurine Moore against her former husband Clifton F. Moore, and it is agreed that Mrs. Moore, if personally present, would testify and her testimony would be uncontradicted that prior to 1932 she and Mr. Clifton F. Moore were man and wife and that they had a baby daughter who was then about four years old; that they had been living in Houston during their married life and she moved to Dallas about a year before her divorce. Mr. Moore was making about $350.00 and expenses at that time, and in the divorce decree she was awarded the custody of the child, but the statute made no provision for maintenance and support by him as a part of the divorce proceedings, so nothing was done in the divorce proceeding about that. The daughter is now about eleven years of age and for the past three or four years has been sick a great deal and has had a special diet and special medical attention, and the expense of her necessaries of support have averaged around $65.00 or $70.00 a month. At the time of the divorce Mr. Moore agreed that he would give $25.00 a month for the support of the child and he has done that right along, but it is wholly inadequate for her support at this time, and I made demand upon him as Mrs. Moore’s attorney several months ago that he increase that allowance, which he refused to do. Mrs. Moore is employed and makes $65.00 a month. That is her total income, except what she can get through renting a house with her mother and managing some income through renting the property out. Mr. Moore’s present income is $250.00 a month and expenses. Mr. Moore has married again and has a wife and stepson, I believe in high school.”

For cause of action, appellee plead her marriage to appellant, the divorce, the birth to them of the daughter named in the statement of facts, that no decree for the support of the child was entered in the divorce proceedings, and the other facts reflected by the record as to the expenses incurred by her in the support of this child, together with the facts upon which she relied to fix liability against him, and his refusal to make any contribution beyond the $25 per month. Her prayer was as follows: “Wherefore, plaintiff prays that defendant be cited to appear and answer herein, and that on final hearing, plaintiff have judgment against defendant in the sum of $2,332.00, together with interest, court costs, and such other and further relief, both general and special, at law and in equity, to which she may show herself justly entitled.”

Appellant answered by the statutory plea of privilege, to 'be sued in Harris County.

By her controverting affidavit, appellee claimed venue in Dallas county, where she and her daughter lived, on allegations that appellant, in failing and refusing to make additional contributions to her for the support of their minor daughter, had committed the offense in Dallas county, as defined by Article 602 of Vernon’s Annotated Penal Code: “Desertion of wife or child.— Any husband who shall willfully desert, neglect, or refuse to provide for the support and maintenance of his wife who may be in necessitous circumstances, or any parent who shall willfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under sixteen years of age, shall be confined in the penitentiary for not more than two years, or be confined in jail for not more than six months, or fined not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars, or be punished by both such fine and imprisonment in jail.”

Appellee invoked Section 9 of Article 1995: “Crime of trespass. — A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

Without determining the issue whether appellee could maintain her venue in Dallas county on the violation by appellant of Article 602, it is our conclusion, on the evidence brought forward in the statement of facts, that she failed to prove beyond a reasonable doubt the essential elements of the offense therein defined. The term “wilful,” as used in Article 602, was defined as follows by the Court of Criminal Appeals in Glazener v. State, 117 Tex.Cr.R. 605, 36 S.W.2d 752, 753: “The burden is upon the state to show that failure to support is willful. O’Briant v. State, 113 Tex.Cr.R. 327, 21 S.W.2d 520. In the case of Mercardo v. State, 86 Tex.Cr.R. 559, 218 S.W. 491, 492, 8 A.L.R. 1312, Judge Lattiraore, speaking for the court, defined the term ‘willful’ as follows: ‘The term “willful” has been often defined by our courts, and as applied to this statute we think means not only with evil intent and malice, but that it also implies a set purpose and design.’ ”

In order to convict a defendant of the offense defined in Article 602, the Court of Criminals Appeals said in Hardin v. State, 124 Tex.Cr.R. 237, 61 S.W.2d 1002, 1003: “In order to show that appellant’s act was willful, it was incumbent upon the state to establish beyond a reasonable doubt that appellant was so situated that he could support his minor children, but would not. West v. State, 110 Tex.Cr.R. 544, 9 S.W.2d 737.”

At the time appellee and appellant were divorced, appellant was making about $350 per month and expenses, and appellee agreed with him that $25 per month was a reasonable contribution by him for the support of their child. He faithfully kept that engagement from the date of the divorce until this suit was tried. There was no proof as to appellee’s income and assets at the time the divorce was granted, but when this case was tried, as an employee, she was making $65 per month; she made an additional income by “renting the house with her mother” and “by managing some income through renting the property out.” There was no proof as to the amount of this additional income. On the other hand, when the divorce was granted, appellant was making $350 per month, but at the time of the trial he was making only $250 per month. When the divorce was granted, as a single man, on the record, he had only himself to support, and appellee accepted the $25 from him as a reasonable contribution. But at the time of the trial appellant was a married man, with a stepson in school. On the facts before us, we cannot give our consent to the conclusion that appellee established “beyond a reasonable doubt,” that appellant, in refusing to make the additional contribution demanded by her, had “willfully” refused “to provide for the support” of his child.

We express no opinion as to the merits of appellee’s civil action against appellant for contribution to the support of their minor daughter. We simply hold that the evidence failed to establish her right to maintain this action in Dallas county.

It follows that the judgment of the lower court overruling the pica of privilege must be reversed, and the cause remanded, with instructions to the lower court to transfer the case to the district court of Harris county.

Reversed and remanded, with instructions.


author: MONTEITH, Chief Justice.

text:
    BOETTCHER v. FEDERAL LAND BANK OF HOUSTON.
    No. 11020.
    Court of Civil Appeals of Texas. Galveston.
    June 6, 1940.
    Rehearing Denied June 27, 1940.

      T. J. Stovall, of Houston, for appellant.
    Carl Runge and J. V. Wheat, both of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal from an order overruling a plea of privilege in an action brought in the district court of Harris County by appellee, the Federal Land Bank of Houston, against O. H. Miller and E. Boettcher to recover upon a promissory note, for a foreclosure of a deed of trust lien on certain land, and to have the value of timber alleged to have been cut and removed from said land applied on. its judgment.

Appellant Boettcher filed a plea of privilege to be sued in Walker County, the county of his residence, or in the alternative to have the case removed to San Ja-cinto County, where the land in question was situated.

Defendant Miller resided in Walker County. He did not file a plea of privilege.

Appellee filed a controverting plea in which it was alleged that its note was payable and its deed of trust was performable in Harris County; that appellant Boettcher, who claimed some interest in said land, had cut and removed standing timber from said land which was subject to appellee’s deed of trust, and that since the district court of Harris County had venue of the action to foreclose said deed of trust lien as against all parties it also had venue of the incidental action of conversion.

In answer to appellee’s controverting plea appellant disclaimed all interest in the land in question and alleged that appellee’s allegations of venue facts were fraudulently made to fix venue in Harris County.

On a hearing before the court an order was entered overruling appellant’s plea of privilege and directing that venue of the suit be retained in the district court of Harris County. Appellant appeals from this order.

It was agreed that appellant was a resident of Walker County, Texas, and that he had cut and removed at least 281,454 feet of timber from said land.

The record shows that W. A. Thompson and wife had executed and delivered to ap-pellee their note for $3,200 secured by a deed of trust on eight tracts of land situated in San Jacinto County, Texas; that said note was payable in Houston, Harris County, Texas, and that said deed of trust was enforceable there. Thompson and wife conveyed the land in question to O. H. Miller, who assumed the payment of said note according to its terms and the terms of said deed of trust. By instrument dated October 29, 1938, and recorded in San Jacinto County on July 28, 1939, O. H. Miller and wife conveyed the standing timber on said land to appellant E. Boettcher. This suit was filed on August 7, 1939.

Appellee relies on Subdivisions 5 and 29a of Article 1995, Vernon’s Ann.Civ.St, to fix venue of this action in Harris County.

The material parts of said Article 1995 read:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *
“5. Contract in Writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. * * *
“29a. (Two or more defendants.) Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

It is admitted by appellant that the venue of this suit is maintainable in Harris County as against his vendor,- O. H. Miller, under exception 5 of said Article 1995, since said note was payable in Harris County. He contends, however, that he was not a necessary party to the suit in Harris County since he was not a party to said note or deed of trust and was not in possession of said land and that he had disclaimed all interest therein. He contends that appellee’s suit for the recovery of damages for the conversion of timber constitutes a separate and distinct cause of action and that the exclusive venue of a suit of this character lies either in Walker County, where appellant resides, or in San Jacinto County, where such conversion or, damage took place.

Appellant’s contention that he was not a necessary party to this suit cannot be sustained. It is now the settled law in this state that in a suit by a mortgage holder to foreclose his mortgage against the original mortgagor or his assignee, where, prior to the institution of such suit, such mortgagor or his assignee has conveyed his interest in and to the mortgaged property to another and the mortgage holder has notice of such conveyance, such purchaser is a necessary party to the suit within the meaning of Subdivision 29a of Article 199.5, Vernon’s Ann.Civ.St. Pioneer Building & Loan Association v. Gray et al., 132 Tex. 509, 125 S.W.2d 284; Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74; Hamilton v. Federal Land Bank of Houston, Tex.Civ.App., 125 S.W.2d 1088.

Further, appellee having shown that the District Court of Harris County had venue of the foreclosure suit, and that appellant Boettcher was a necessary party at the institution of the suit, even though he later disclaimed all interest in the land in question, the court having originally acquired jurisdiction would retain it in the absence of proof that the allegations of ap-pellee’s petition showing jurisdiction were fraudulently made. Logan et al. v. Ludwick, Tex.Civ.App., 283 S.W. 548; Harris v. Allison et ux., Tex.Civ.App., 29 S.W.2d 413; Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141.

While appellant, in his answer to appel-lee’s controverting affidavit, alleged that appellee had wrongfully and illegally alleged in its petition that defendant was claiming some right, title or interest in the land in question and that such allegations were made to fraudulently fix venue in Harris County, no proof was offered by appellant in support of such allegations and there was ample evidence in the record to support the trial court’s . implied findings that such allegations were not fraudulently made and that the venue facts alleged by appellee did in fact exist.

It is now the established rule that where a part of mortgaged property has been damaged or the use or profits thereof converted, the mortgagee can maintain an action for foreclosure against the claimant of the property and, in the same suit, sue the wrongdoer for damages for the loss sustained. 9 Tex.Jur. 174; Paddock v. Williamson, Tex.Civ.App., 9 S.W.2d 452; Oats et al. v. Dublin National Bank et al., 127 Tex. 2, 90 S.W.2d 824; Warner v. Gohlman, Lester & Co., 117 Tex. 145, 298 S.W. 890.

Under the above authorities, the judgment of the trial court in overruling appellant’s plea of privilege is in all things affirmed.

Affirmed.


author: PRICE, Chief Justice.

text:
    FLOWERS v. WARLICK.
    No. 3951.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    J. T. Kelley, of Odessa, and Clyde E. Thomas, of Big Spring, for appellant,
    Lawerence L. Barber, of Seagraves, and Berry, Warlick & Bunnenberg, of Vernon, for appellee.
   PRICE, Chief Justice.

In this case plaintiff, L. G. Warlick, filed suit against Mrs. J. H. Flowers in the District Court of Gaines County to recover certain property situated in the town of Seagraves. The defendant, among other things, pleaded not guilty, and a cross action against plaintiff. The trial was to a jury and at the close of the evidence the court instructed the jury to return a verdict in favor of the plaintiff, and against the defendant as to plaintiff’s cause of action and the cause of action asserted by her in her cross action. Appeal was duly perfected to this court.

Appellant has failed to file a brief herein, and no assignments of error on behalf of appellant appear in the record. We have examined the record for fundamental error, and find that the judgment is sustained by the pleading and proof.

It is therefore ordered that the cause be in all things affirmed.


author: O’QUINN, Justice.

text:
    SHULTZ v. AMERICAN NAT. INS. CO.
    No. 3691.
    Court of Civil Appeals of Texas. Beaumont.
    June 20, 1940.
    Rehearing Denied June 26, 1940.
    James D. O’Connor, of Dallas, for appellant. - -
    W. B. Handley, of Dallas, for appellee.'
   O’QUINN, Justice.

This was an action in County Court of Dallas County at Law No. 1, Dallas county, by appellant, Edna Shultz, surviving widow of Marvin H. Shultz, as beneficiary, against appellee, American National Insurance Company, on a policy of life insurance, No. 10138471, issued by appellee to the' deceased, who died June 29, 1938. Appellant prayed for double indemnity, for attorney’s fees in the sum of $150, and for costs, etc. Appellee’s defense was that the policy lapsed for nonpayment of dues pri- or to the death of the insured. On trial to a jury, the following special issues were answered as indicated:

“Special issue No. 1:
“Do you find from a preponderance of the evidence, that at the time of the death of the insured, Shultz, the premium due May 23rd. 1938, had been paid to J. E. Chapman? Answer ‘Yes’ or ‘No’. Answer ‘Yes’.
“Special issue No. 2:
“Do you find from a preponderance of the evidence, that at the time of the death of the insured, Shultz, the premium due May 30th, 1938, had been paid to J. E. Chapman? Answer ‘Yes’ or ‘No’. Answer ‘Yes’.
“Special issue No. 3:
“Do you find from a preponderance of the evidence, that J. E. Chapman was authorized by defendant company to collect premiums on the insurance policy in question? Answer ‘Yes’ or ‘No’. Answer ‘Yes’.
“Special issue No. 4:
“What do you find from a preponderance of the evidence, would be a reasonable attorney’s fee for the services of James D. O’Connor for prosecuting this cause ? Answer in dollars, if any, and cents, if any. Answer $150.00.”

Judgment was for appellee non obstante veredicto, from which appellant prosecuted her appeal to the Dallas Court of Civil Appeals. The case is on the docket of this court by order of transfer by the Supreme Court.

The sole issue presented by this appeal is- whether, prior to the death of the deceased on June 29, 1938, the policy had lapsed for the nonpayment of premiums. On motion of appellee for judgment non obstante veredicto, the trial court found that issue, as a matter of law, in appellee’s favor. Appellant’s assignment of error is that “there was ample evidence before the jury to justify and sustain the answers of the jury to the special issues submitted by the court.”

The policy of insurance contained the following provisions: “All premiums are payable in advance at the Home Office of the Company in Galveston, Texas, or to an authorized representative of the company on or before the date when due. Payments to be recognized by the Company must be entered when paid in the Premium Receipt Book belonging with this policy. If for any reason a company representative, does not call for the premium when due, it shall be the duty of the insured to bring or send said premium to the Home Office, or to the Company’s Representative, and if the insured shall fail to perform this duty within four weeks from the date on which said premium was due, this policy shall thereupon become void and all premiums paid hereon shall be forfeited to the Company, except as otherwise provided herein. Nothing herein is intended to, or shall be interpreted to authorize the acceptance of any premiums more than four weeks in arrears, any payment of which shall be at the sole risk of the person making payment, and shall not be credited upon the policy, whether entered in the Premium Receipt Book or not and shall be returned to the remitter upon demand.”

The Premium Receipt Book has at the top of each page for entries a column indicating the amount of the premium, three columns to indicate the date when the premium was due, three columns to note the date when paid, and at the end a place for the signature of the collector, and reciting that on the first line of each page he’should sign his full name, and afterwards his initials. At the top of each of these pages is: “Don’t pay premiums to strangers.”

The premium receipt book called for by the policy was introduced in evidence, and the premiums receipted for therein kept the policy in force to and inclusive of May 23, 1938. The insured, by the stipulations in the policy, was entitled to a “grace period” as follows:

“Grace Period — Premiums shall be paid in the order in which they become due and a grace period of four weeks shall be granted for the payment of every premium after the first.shall create an obligation on the part of the company to receive premiums which are in arrears over four weeks.”,

Dating the last premium payment on May 23, 1938, the insured died after the expiration of the full grace period — on June 29, 1938. It is on this showing that appellee bases its contention that the policy had lapsed for nonpayment of premium prior to the death of the insured.

Appellant relies upon the following statement of the evidence to raise in her favor the issues submitted to the jury, and on this evidence contends that the policy was “in benefit” at the time of the insured’s death.

On the 21st day of May, 1938, J. E. Chapman issued and delivered to Marvin H. Shultz, the insured, the following receipt, in the form shown by a photostatic copy of the receipt brought forward in the statement of facts:

‘This is a Receipt for a Deposit on a Weekly Premium REVIVAL Application, and does not refer to, nor will amount bo credited to any Policy in force at date of this receipt, nor to the Premium of an ORDINARY Policy (an Ordinary Policy is one upon which premiums are paid Monthly, Quarterly, Semi-Annually or Annually).
American National Insurance Company Of Galveston, Texas. No. ..5-21.... 1938.. Received of Marvin Shultz ..$1.60.. being the arrears on Policy No. which the applicant requests the Company to revive subject to the following conditions'? The Company assume§*-iio liability whatever under this policy unless on the^ekfte of revival-, as shown by endorsement's! the Honje^Office, the Insured is alive and in sound health aftdiaSurable according to the Company’s standard of instjFermKtw as provided at original date of issue. If thig^pplicatioKfor revival is rejected or the Insured is not alive and insSQund health the premiums referred to herein will be refunchs^l. (Signed) J. E. Chapman Agent.”

Appellant gave the following testimony in explanation of the receipt book:

“Mrs. Shultz, how long, at the time of your husband’s death, had you been carrying any policy of insurance with American National? A. I don’t remember how long it was.
“Q. You had carried one of our policies for several years, had you not? A. Yes, sir.
“Q. With each one of these policies you had a little premium receipt book? A. Yes, lot’s of times.
“Q. I just asked you about the premium receipt book; you had that book, didn’t you? A. Yes, sir.
“Q. You had that book that covered this policy on your husband’s life that is involved in this law suit? A. Yes, sir.
“Q. Where is that book now ? A. I think it’s at Mr. O’Connor’s office.
“Q. Did you have that book? A. That’s it there (indicating), I guess.
“Q. Did you have that book at the time of your husband’s death? A. Yes, sir.
“Q. Did you get that book at the time that policy was issued to you? A. Yes, sir.
“Q. And you had it all during that intervening period of the time? A. Yes, sir.
“Q. On your husband’s death, did you turn that book, with the policy, over to the American National Company? A. Yes, sir.
“Q. You got that policy and that book back, didn’t you? A. Yes, I didn’t get any of the receipts back.
“Q. I am asking you about the book? A. Yes.
“Q. You got the policy back and the book back? A. No, sir; not at the time that I asked for it; I had to come back the second time to get it.
“Q. The first time that you asked for it the local office told you that it went to Galveston, didn’t they? A. No sir, they didn’t.
“Q. Anyway, you got them back? A. Yes.
“Q. Will you get that premium receipt book; I want to ask you some questions about it. (Witness secures same from her counsel) That book covers policy bearing what number — the policy on your husband’s life? A. (Witness looks) 10138471.
“Q. 10138471? A. Yes.
“Q. What is the weekly premium as shown by that receipt book there? A. 25-cents.
“Q. And who kept that book — you or your husband? A. We just had it there at the house.
“Q. Kept there at the house? A. Yes.
“Q. And does that book cover any other policies? A. Now, does it cover any other policies.
“Q. Yes? A. No, sir.
"Q. That is your husband’s policy, the one that is involved here in this suit? A. Yes.”

In explanation of the receipt as shown above, appellant testified as follows:

“Q. This little receipt that you have offered in evidence here; was that delivered to you? A. Yes. My husband gave it to me after man gave it to him down at cafe.
“Q. You got that from your husband? A. Yes.
“Q. You didn’t see the man give it to your husband? A. No, sir.
“Q. And you don’t know of your own knowledge what transpired between your husband and this man Chapman at the time that he gaye this receipt to your husband, do you? A. No, sir, I don’t.
“Q. You weren’t there? A. No, sir; but I know—
“Q. I am just asking you, were you there? A. No, I wasn’t with them.
“Q. Where did you get this other receipt, this little white receipt that you are talking about? A. My husband brought it to the house.
“Q. At the same time he brought the other? A. No, sir.
“Q. Before or after? A. After.
“Q. He brought the one in evidence here —? A. After—
“Q. Afterwards? A. Yes, sir. * * *
“Mr. O’Connor: I am going to introduce this and I would like to read this deposition to her.
“The Court: Let’s go ahead and finish with this witness.
“Q. I would like to know whether that receipt was—
“Q. What is this, Mrs. Shultz? A. That is one of them but that is not the last one, the one that he picked up with the book that he didn’t give back to me.
“Q. What is that — you say that is one of them? A. That is a receipt. That is one where he paid for 4 weeks for me and for him both, on both of the policies.
“Q. You have seen these before? A. Yes.
“Q. You have seen many of them? A. Yes.
“Q. Those are issued by the defendant Company? A. Yes.
“Mr. O’Connor: I want to introduce it in evidence.
“Mn Handley: Let me look at it.
“Q. Now, Mrs. Shultz, have you seen those kind of receipts ? A. Yes.
“Q. How many times have you seen those kind of receipts? A. Several times.”

In explanation of crossed lines marking out certain language in the receipt, appellant testified, “He always marked them out when it was a receipt.”

Appellant and the mother of deceased also carried policies of life insurance on their lives with appellee.

The form of the receipt issued by appellant’s agent on May 21, 1938, is' not conclusive against her. True, it contains printed recitations that the receipt was for a deposit on a weekly premium revival application, etc., but it is significant that no policy number is named in the receipt, though the form has a blank place for the policy number. The inference arises on the face of the receipt that if the deposit had been on a “revival application” the policy number would have been given therein. It is also a weighty inference, if not conclusive, that the receipt was not intended as a “revival application” because Mr. Chapman, as appellee’s agent, marked out the specific language that “the applicant requests the company to revive subject to the following conditions,” and the conditions are also marked out.

Appellant’s testimony raised the issue that the insured paid premiums to Mr. Chapman not recorded in the receipt book; that Mr. Chapman issued receipts for these premiums, on the form copied above, and that in issuing these receipts “he always marked them out when it was a receipt.”

In evaluating appellant’s testimony, ap-pellee advances the following proposition: “We do not deny that a receipt is not contractual, and that it may be explained by parol evidence, or even contradicted.”

And against her testimony, appellee makes the following argument: “It is at this very point that the case of the plaintiff fails. She did not know anything about the transaction at the time the money was paid to Chapman by her husband, because that transaction took place away from her home, and she was unable to testify concerning it. There were two other policies upon which conceivably her husband might have paid arrears in premiums the policy on Appellant’s life, or the policy on his life in favor of his mother. No attempt was made to show that these policies were not in a state of lapse at the time of this payment.”

Appellee’s argument is not a sbund construction of appellant’s testimony. It must be conceded that appellee’s agent received from the insured $1.60. Holding this money, appellee rested under the burden of showing that the insured did not pay it to Mr. Chapman as premiums on his policy. There was nothing to suggest that the insured was under any duty to pay the premiums on the policies issued on the life of his mother, or that he personally paid the premiums on the life of his wife. The evidence was that he regularly paid the premiums on his own life, and that the $1.-60 was paid only two days before the maturity date of his own premium.

We concede -appellant’s proposition, advanced on authority of National Aid Life Ass’n v. Driskill, Tex.Civ.App., 138 S.W.2d 238, that payment of premiums in accordance with the provisions of an insurance policy is a condition precedent to the establishment of liability against the company. It is our conclusion that the evidence raised the issue for the jury that the $1.60 was paid by the insured as a premium on his own policy.

We quote appellee’s “Point No. 2”: “A provision in an industrial insurance policy providing that the weekly premiums shall be entered by the agent signing a book kept by the policyholder in order to be recognized by the company, is a valid limitation of the agent’s authority, and a policyholder having such a policy with that limitation is charged with knowledge of the agent’s limited authority, and any payments he makes to an agent which are not entered on the book are made at his own risk, and in order to charge the company by reason thereof, he must go further than merely showing payment to the agent — he must show a receipt of the money by the company.”

This proposition is not a correct statement of the law. Parties cannot by contract alter the rules of evidence so aá to preclude the court from receiving in evidence the true facts, admissible under the general rules of evidence. 20 Am.Jur. 45—Evidence, Sec. 15; Annotations in 68 A.L.R. 331; Texas Authorities: Southern P. Co. v. Phillipson, Tex.Civ.App., 39 S.W. 958; Ryan & Co. v. Missouri, K. & T. Ry. Co., 65 Tex. 13, 57 Am.Rep. 589; Missouri P. Ry. Co. v. China Mfg. Co., 79 Tex. 26, 14 S.W. 785; Galveston, H. & S. A. Ry. Co. v. Horne, 69 Tex. 643, 9 S.W. 440. The Texas authorities hold that contract abrogating fundamental rules of evidence is unreasonable, if not void, and will not be enforced. It is conceded that parties to a contract may provide that certain facts shall constitute prima facie evidence; this proposition is illustrated by recitations of facts in deeds of trust, etc. See Supreme Forest Woodmen Circle v. Garcia, Tex.Civ.App., 103 S.W.2d 1108; Kelley v. Goode, Tex.Civ.App., 1 S.W.2d 683.

The stipulations in the policy in regard to the receipt book made it only prima facie evidence of the conditions of the premium payments; by introducing the receipt book, appellee made out a prima facie case that the policy had lapsed for nonpayment of premiums prior -to the death of the insured. But its prima facie case was subject to rebuttal by proof that additional payments not recorded in the receipt book had been made to appellee. And the fact that these additional payments were not recorded in the receipt book did not place upon appellant the burden of tracing the payments into appellee’s treasury. It was sufficient for her to show that the payment was made to appellee’s authorized agent. Art. 4732, Sec. 1, Vernon’s Ann. Civ.St., does not deny our construction of the evidence. This section of Art. 4732 simply provides: “That all premiums shall be payable in advance either at the home office of the company or to an agent of the company upon delivery of a receipt signed by one or more of the officers who are designated in the policy.”

The testimony offered by appellant brought the receipt issued by Mr. Chapman for the insurance on the 21st day of May, 1938, 'within the provisions of Art. 4732.

The point should be stressed that appellant traced to appellee’s agent $1.60, and that appellee made no effort to show the disposition made by it of this money. The presumption is that Mr. Chapman, as agent of appellee, was an honest man, and having authority to collect the $1.60, that he remitted it to appellee. If the money was not paid by Mr. Chapman to appellee, and that fact was a defense, it should have sustained its defense by proof; appellee was in position to show that it never received the money from its agent.. If this money was credited by appellee to the policies on the life of appellant, or on the life of the mother of the deceased, appellee should have shown that fact; appellee alone was in position to show that fact.

It is our conclusion that the evidence raised and supports the jury’s answers to the special issues, and that appellant was entitled to judgment on the answers of the jury. Therefore, her prayer should be granted “that this court enter its judgment reversing and rendering this case for appellant for the sum of Five Hundred ($530.-00) and Thirty Dollars together with interest from the 9th day of October, A. D. 1939.”

Accordingly, the judgment of the lower court is reversed and judgment here rendered in favor of appellant against appel-lee for $530, being the principal of the policy in the sum of $380, plus the $150 attorney’s fee, with interest at six per cent per annum from the 9th day of October, 1939, and for all costs of suit.

Reversed and rendered.


text:
    ENTERPRISE CO. v. TAYLOR.
    No. 3599.
    Court of Civil Appeals of Texas. Beaumont.
    June 13, 1940.
    Orgain, Carroll & Bell, of Beaumont, for appellant.
    Fred A. White, of Port Arthur, for appellee.
   WALKER, Chief Justice.

This is a libel suit wherein appellee, Miss Genevieve Taylor, was plaintiff, and appellant, the Enterprise Company, was defendant. On trial to a jury, appellee’s actual damages were assessed at $3,750 and her exemplary damages at $3,000. On her remittitur, final judgment in her behalf was for actual damages only in the sum of $2,750. Appellant has duly prosecuted its appeal to this court.

This, is a second appeal; our opinion on the first appeal is reported Enterprise Co. v. Taylor, 112 S.W.2d 1103, to which we refer for a statement of the basic facts of the case.

Appellee’s measure of damages was submitted to the jury by the following issue and charge:

“(a) From a preponderance of the evidence what sum of money, if any, do you find, -if paid now, would reasonably compensate the plaintiff, Genevieve Taylor for the actual damages, if any, sustained by her by reason of the publication in The Beaumont Enterprise on March 3, 1936, of the following portions of said article: 'They had failed in a battle royal with four police officers;’ ‘As the two young women resisted arrest by two policemen so forcibly that the outcome of the battle was in doubt — ;’ ‘They spent the night screaming for aid and intimating in colorful language that they wanted, somehow to get out of jail?’
“(b) If you find from a preponderance of the evidence that the plaintiff, Genevieve Taylor, was actually damaged by the publication of the foregoing parts of such article, then your verdict should be the writing of the amount of such damages, if any, in dollars and cents; otherwise, the form of your answer should be ‘None.’
“(c) In connection with the foregoing issue, you are instructed that you cannot allow the plaintiff any damages for any part of the article complained of which is true. The truth of such article is a defense thereto.
“(d) You are further instructed in connection with the foregoing issue that you cannot consider for any purpose' and must not allow the plaintiff any damages on account of the publication of the following parts of such article, to wit: ‘Two secretaries of public officials jailed. Secretaries to two public officials, one county and one city, were in city jail last night charged with drunkenness, * * * Two other police officers drove up and helped to get them to the station. One officer suffered a severely scratched chin. They were arrested at a Log Cabin sandwich stand after complaint had been made to the police department. They spent the night in the jailhouse * * * Given their chance at the telephone they put in a call. It was understood that they called not their bosses but a county peace officer. Somehow or other, though, they stayed in jail.’
“(e) You are further instructed in connection with the foregoing issue that you will not allow plaintiff any damages by reason of any animosity or anger or resentment that she may now entertain or has entertained in the past, against the defendant by reason of the publication of said article in full.
“(f) You may, however, arrive at the amount of actual damages, if any you may award the plaintiff, by taking into consideration any loss of wages sustained by plaintiff, if any, the injury to her reputation, if any, mental anguish suffered, if any, by the plaintiff, the humiliation, if any, suffered by the plaintiff, by reason of the publication of the portions of the article incorporated in the foregoing question.
“(g) By the term ‘mental anguish’ as used in the foregoing instruction, is meant a high degree of mental suffering and not mere disappointment or regret.
“(h) In connection with the • foregoing question, you are instructed that you cannot allow the plaintiff any damages for any portion of such article that may be privileged and without malice.
“(i) The word ‘privilege’ as used herein means the right of the defendant to publish a reasonable and fair comment upon the official acts of public officers and of the matters of public concern, if published without malice.
“(j) By the word ‘malice’ as used herein is meant ill-will, bad or evil motive, or such gross indifference to the rights of the plaintiff as will amount to a willful or. wanton act on the part of the defendant.
“(k) You are further instructed, in connection with the foregoing question, that you cannot allow the plaintiff any damages for the publication of any portion of the article complained of which is qualifiedly privileged, if it is qualifiedly privileged.
“(1) By the term ‘qualifiedly privileged’ is meant: The publication of any article without malice where the publisher thereof publishes same in good faith -and is prompted in so doing by a duty owed to the public, or where the publisher believes he is under a duty to the public to publish same.
“(m) You are further instructed that you cannot allow the plaintiff any damages, nor can you consider for any purpose in arriving at damages, if any, for the plaintiff, any portion of said article which is substantially true, even if there he malice on the part of the publisher in publishing the same.”

Appellant’s twenty-seventh exception to this charge was as follows: “Because the court does not confine the damages, if any, as the proximate result of the publication of any portion of the article that was not true or substantially true, and does not restrict the damages to those such as a person of ordinary care and prudence could reasonably foresee and anticipate in the exercise of ordinary care: as the result of the publication of any portion of such article, if any, that should not be true, but permits the jury to consider any damage resulting from the publication, whether or not it was proximately caused by the publication of an untruthful portion.”

The authorities sustain this exception. In assessing her damages, the jury could consider only such pecuniary loss suffered by her “as a proximate result of the defamation.” 27 Tex.Jur. 783: Libel and Slander. Same authority, page 781: “When the language complained of is actionable per se, they may be told to award such damages as they find from the evidence has been suffered by reason of the defamation. In such circumstances it is proper to instruct them to find for the plaintiff at least nominal damages, and such further actual damages as, according to the evidence, may proximately have resulted.”

This proposition by Texas Jurisprudence has direct support in our adjudicated cases. Cotulla v. Kerr, 74 Tex. 89, 11 S.W. 1058, 15 Am.St.Rep. 819; Beeman St. Clair Co. v. Caradine, Tex.Civ.App., 34 S.W. 980; Grand Lodge United Bros. v. Rose, Tex.Civ.App., 243 S.W. 496. In McFadden’s Publications, Inc. v. Turner, Tex.Civ.App., 95 S.W.2d 1027, 1029, a libel case, Chief Justice Gallagher speaking for his court said: “The general and well-established rule is that the court should instruct the jury as to the measure of damages to be applied, and that it is reversible error for the court to fail to do so. * * * Under a general allegation of damage, the plaintiff may in such cases, without specific proof, recover actual damages for injuries to his reputation and for mental suffering, provided thé same are the direct and proximate result of the defamation. * * * The court, in submitting the issue of damages on another trial, should conform to the rules announced in 27 Tex.Jur., p. 781, § 100, and authorities there cited, as far as the same are applicable to the case made by the pleadings and evidence.”

Appellant also assigns error against the court’s measure of damages and the accompanying charge as given above, that it was “contradictory” and was a “general charge.” By sections (c), (d), (e), (h), (k), and((m), the court withdrew certain matters from the consideration of the jury in assessing damages. After instructing the jury by sections (c), (d), and (e), that damages could not be allowed on certain elements of the case, the court then instructed the jury by section (f) : “You may, however, arrive at the amount of actual damages, if any you may award the plaintiff, by taking into consideration any loss of wages -sustained by plaintiff, if any, the injury to her reputation, if any, mental anguish suffered, if any, by the plaintiff, the humiliation, if any, suffered by the plaintiff, by reason of the publication of the portions of the article incorporated in the foregoing question.”

Notwithstanding -sections (c), (d), and (e), of the court’s charge, the jury may have been influenced by section (f), which was general in its terms, to consider all evidence before it in assessing the damages.

We are also inclined to think that in certain respects the charge was a general charge. By section (h), the jury was instructed that it could not allow damages for any portion of the article that was privileged and without malice, but sent no fact issue to the jury on that point, and the same general instructions were given by sections (k) and (1) on the issue of “qualifiedly privileged.”

Because of the error of the court in overruling appellant’s twenty-seventh exception to the charge, the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: CODY, Justice.

text:
    BURKHARDT et ux. v. LIEBERMAN et al.
    No. 10982.
    Court of Civil Appeals of Texas. Galveston.
    May 30, 1940.
    Rehearing Denied July 3, 1940.

      Walter F. Brown and H. Fletcher Brown, both of Houston, for appellants.
    W. E. Daly and Charles L. Terry, both of Houston, for appellees.
   CODY, Justice.

This suit was brought by appellants, Otto Burkhardt and wife, Mary, in trespass to try title, against George Lieberman and O. C. Riedel, to 71.6 rural acres in Harris County, near Houston,' and a vacant lot in Houston. The rural property consists of three contiguous tracts of 10 acres each; of a tract of 25 acres; one of 16 acres; and one of 6/10 of an acre.

It was established at the trial that 71.6 acres formed a part of appellants’ homestead at the time, January 28, 1932, Otto Burkhardt executed a deed of trust thereon to secure the First National Bank of Houston in the payment of two notes; one of $1,300, and one for $1,500. On September 24, 1935, Otto Burkhardt executed a new deed of trust, being in renewal of the former deed of trust. The original, and the renewal deeds of trust each contained the statement and covenant that the property thereby covered, which is here involved, formed no part of his homestead. On March 25, 1932, appellants made their sworn disclaimer of any homestead rights in the property, and designated as their homestead a 27^acre tract on which they resided in a residence situated thereon, which was located about a mile and a half from the 71.6 acres, and across the Katy Road therefrom. These instruments were recorded in the deed records of Harris County. The affidavits are copied and appended hereto. Burkhardt failed to pay his notes when they matured, and the bank’s trustee foreclosed under the renewal deed of trust, on April 6, 1937, and appel-lee Lieberman bought the property in for $3,300, subject to a superior lien on the 25-acre tract of approximately $1,300, and subject to delinquent taxes of about $900. Burkhardt surrendered possession to Lieberman.

Appellant Burkhardt was a nurseryman by occupation. He owned both the 25-acre tract and the 16-acre tract in 1921, at the time he bought the three 10-acre tracts. And at the time he bought the three 10-acre tracts, in 1921, he lived in a residence which was situated on the 16-acre tract; from this, in 1921, he moved to the residence situated on the 27%-acre tract. He subsequently lost title to the 27%-acre tract, but continued to live thereon, and did so at the times material to this case.

Appellee Lieberman was a nursery customer of Burkhardt, and had purchased nursery stock from appellants’ home place, the 27Y2-ac.re tract, and from his "place of business on Fannin Street in Houston. In March, 1937, Otto Burkhardt told Lieberman that he was going to be foreclosed on by the bank, and asked Lieberman if Lieberman knew where he might borrow the money to refinance the loan. At that time he told Lieberman that the property involved was not his home, and arranged to have Lieberman come out to see it. Two days later he showed Lieberman the property here involved. Lieberman testified that had Burkhardt intimated to him in any way that he claimed the land as a homestead, or that if he had had any knowledge it was such, he would not have bought it. Lieberman further testified, and his testimony is not disputed, that after he made the inspection of the land, he discussed the title of the land with Burkhardt, who told him the bank had made him have the title straightened up when it took the deed of trust, and referred him to Mr. Burkhardt’s attorney, and to the bank. Both the bank and the attorney told Lieberman the lien was all right, and the disclaimers as to homestead and all other matters in the bank’s file were exhibited to him.

Appellee Riedel lived near the property here involved. On February 15, 1938, some nine to ten months after Lieberman had bought in the 71 acres at the trustee’s sale of April 6, 1937, and had same peaceably surrendered to him by Burkhardt, Riedel bought the three tracts of 10 acres each from Lieberman for $4,250 cash. This he did after the title had been approved by his attorney.

The answer filed by Lieberman is quite lengthy. In addition to general demurrer, general denial, and plea of not guilty, it pled in substance the facts hereinabove set forth. Following the allegations of the facts and circumstances connected with his purchase of the property occurs this pleading which we quote from said answer: “Premises considered, this defendant, George Lieberman, shows that he is a purchaser in good faith and for value of the land * * * without notice of any right, title, lien, claim, or equity in or on the part of the plaintiffs * * *, and further this defendant shows that by virtue of the allegations hérein made the plaintiffs, Otto Burkhardt and wife, Mary Burkhardt, are estopped to claim any right, title or equity in and to all or any part of said land * * *.” The answer then alleges certain improvements made in good faith, without knowledge of appellants’ claim to the property, and their value. It further sets up his purchase and ownership of a superior outstanding vendor’s lien and superior title against the 25-acre tract for $1,300, and that the indebtedness is past due, and his election to rescind the sale and recover the superior title. The answer of Lieberman further sets up a claim for taxes that he has paid, and a subrogation to the lien to secure their payment, and other details in connection with his claim not necessary to be set forth with particularity.

The answer of appellee Riedel in addition to a general demurrer, a general denial, and a plea of not guilty, contains a disclaimer to all of the land sued for except the three tracts of 10 acres each which he bought from Lieberman. His answer sets up that on February 15, 1938, he bought the three 10-acre tracts for a valuable consideration from Lieberman, and that at the time of such purchase he was furnished with an abstract of title which he caused to be examined by a competent attorney, who advised him that the title of Lieberman was good and merchantable; and that, he, Riedel, found Lieberman in possession of such land under a deed duly recorded, and accepted from him a warranty title. He pled that he had paid $4,250 cash for the land. Further, that appellants were not residing upon the land; and that the trustee’s deed which conveyed such land to defendant Lieberman had been recorded for about a year and no suit had been filed to recover same when he bought; that there was no instrument of record which would lead one to believe that plaintiffs were claiming or even intended to claim the same or any portion thereof. And that the deed records of Harris County showed a valid fee-simple title to the three 10-acre tracts to be vested in Lieberman; he pled the deed of trust, under the disclaimer of homestead rights and covenant against homestead use; he also pled the sworn disclaimer of homestead, and homestead designation; he pled the renewal, the failure to pay the notes, and the foreclosure. He pled that he had had no notice or knowledge of their homestead claims, and that if he had received any, he would not have bought. Riedel further pled that appellants are estopped to claim the three 10-acre tracts, and that he is a purchaser for value without notice, and is entitled to judgment accordingly.

In reply, the appellants filed a first supplemental petition, demanding strict proof. They pled that they were willing to pay Lieberman the amount of the vendors’ lien note secured on the 25 acres, and with its superior title, and that they tender whatever amount the court determines is necessary to reimburse Lieberman for the amount paid out on the note, and that they offer to do whatever equity the court requires of them in connection with this suit.

The case was submitted on special issues, in response to which the jury found:

1. The 71 acres of land were a part of the homestead of Otto Burkhardt and wife on January 28, 1932 (the date of the original deed of trust).

2. That the %o-acre tract was also at that time a part of their homestead.

3. That the 71 acres were also a part of their homestead on September 24, 1935 (the date of the renewal deed of trust).

4. The same finding as the foregoing was made with respect to the %o-acre tract.

5. That when Lieberman purchased the property, he did not believe the statement in the deed of trust of September 28, 1932.

10. That a person of ordinary prudence situated as was Lieberman would not have bought the property except for the statement in the deed of trust of September 28, 1932.

11. That when Lieberman purchased the property he believed the statement in the deed of trust of September 24, 1935, that the property was not a part of the homestead of appellants.

12. That a person of ordinary prudence situated as was Lieberman would have believed such statement to be true.

13. That in purchasing the property Lieberman relied on such statement.

14. That a person of ordinary prudence, similarly situated, would have relied on such statement.

15. That Lieberman would not have bought the property hut for such statement.

16. And that a person of ordinary prudence situated as Lieberman would not have bought the property but for such statement.

17. That Lieberman, at the time he purchased the property, was led to believe from the statement by Otto Burkhardt, as to his homestead contained in his affidavit, that the property was not a part of the homestead of himself and Mrs. Burkhardt on September 24, 1935.

18. That Lieberman relied on the statement in such affidavit.

19. That a person of ordinary prudence, situated as was Lieberman, would have relied on such statement.

20. That Lieberman would not have bought the property except for such statement.

21. A person of ordinary prudence situated as Lieberman would not have bought the property but for such statement.

22. That when Lieberman purchased the property involved in this suit he was led to believe from the statement by Mary Burk-hardt, as to homestead, contained in her affidavit, that the property was not the homestead of Otto Burkhardt and herself on September 24, 1935.

23. That in purchasing the property in question Lieberman relied on such statement.

24. That a person of ordinary prudence, situated-as was Lieberman, would have relied on such statement.

25. That Lieberman would not have bought the property but for such statement.

26. That a person of ordinary prudence situated as Lieberman would not have bought the property except for such statement.

27. That the facts and circumstances surrounding Lieberman at and prior to the trustee’s sale on April 6, 1937, were such as to put a reasonably prudent person upon inquiry as to whether the 71 acres was a part of the homestead of Otto Burkhardt on January 28, 1932.

28. That such inquiry, if diligently prosecuted, would have led Lieberman to the knowledge that said property was a part of the homestead of Otto Burkhardt and wife on January 28, 1932.

29. That the facts and circumstances surrounding Lieberman at and prior to the trustee’s sale on April 5, 1937, were such as to have' put a reasonably prudent person upon inquiry as to whether the 71.6 acres formed a part of the Burkhardt homestead.

30. That such inquiry, if diligently prosecuted, would have led Lieberman to the knowledge that said property was a part of the Burkhardt homestead.

31. That at the time Riedel purchased the three 10-acre tracts he took such steps to ascertain the status of the title to the land he was purchasing, as a person of ordinary prudence situated as he was would have taken under the same or similar circumstances.

32. That at,the time Riedel purchased the three 10-acre tracts involved in this suit, he had no notice of the homestead claims thereto of the Burkha'rdts.

33. That Riedel would not have purchased the three 10-acre tracts if he had had notice of the homestead claims of appellant at such time.

34. (It is not necessary to give this answer).

The court, after finding that the answers of the jury to special issues Nos. 10, 27, 28, 29 and 30 are immaterial to the determination of the case, because of the findings on the other special issues, rendered judgment on the verdict that appellants take nothing from appellees, and adjudged and decreed that the title of Lieberman as to the 25-acre tract be quieted. And from this judgment appellants have duly appealed.

Appellants depend for reversal of the judgment of the trial court primarily on the line of cases represented by Texas Land & Loan Company v. Blalock, 76 Tex. 85, 13 S.W. 12, and Nixon v. Hirschi, Tex.Com.App., 132 S.W.2d 89. The Blalock case holds that no statement in an application for a loan, and no recitals or declarations made by owners of homestead property, that such property is not homestead property will authorize a person dealing with them to fail to take notice of actual, open, and exclusive possession of such property, and “when this, concurring with interest in the possessor, makes it homestead, the lender stands charged with notice of that fact, it matters not what declarations to the contrary the borrower may make.” [76 Tex. 85, 13 S.W. 13.] It was stated in the Hirschi case, “Hirschi (the mortgagee) himself testified that the abstract showed the dedication of the homestead on property other than that given as security for this loan, and that he did not ‘go to anything except the records.’ The mere record representations made by the plaintiffs as to homestead, do not, without more, estop them from asserting their homestead rights under the constitution.” [132 S.W.2d 93.] (Citing the Blalock case.)

One of the outstanding features of the fundamental law of Texas is its denial to the husband and wife of the common-law right to mortgage homestead property. Naturally the prohibition against mortgaging homestead property to borrow money could not have the effect of removing the temptation to try to do what is thus prohibited. Every money lender in Texas knows that a mortgage on a homestead is invalid, and that there is always danger that a borrower will attempt to secure his indebtedness with an invalid lien on homestead property. Knowing this, one who takes a mortgage on real estate in Texas is in no position to assert an estoppel against a mortgagor whose possession of the property on which he purports to place a mortgage was sufficient to affect the world with notice that the same was being possessed at the time of the purported mortgage so as to make it homestead property. That is the sum and substance of the holding in the Blalock case.

Appellee Lieberman did not take a mortgage from appellants on their homestead property. If it can be said that a prospective purchaser of real estate at a trustee’s sale is put upon inquiry as to whether the property to be sold was homestead property when it was mortgaged, we know of no reason why such prospective purchaser is not justified in accepting the statement of the owner, that the property to be sold at an advertised trustee’s sale is not homestead property. At the time Lieberman was contemplating buying the property he asked Burkhardt if the property (to be sold at the trustee’s sale) was homestead property, and at that time appellants had the means at hand of readily preventing such sale, if the property was in fact homestead. All they had to do was to enjoin the sale. But instead of preventing the sale, Burkhardt told Lieberman that the property was not homestead property, and referred him to the bank, and to appellants’ attorney. From the information thus obtained, including the affidavits of both appellants, Lieberman was undoubtedly led to believe, and authorized to believe, that the apparent power of sale with which Burkhardt had clothed the trustee was valid, and thus induced by appellants to buy the property at the trustee’s sale. “ ‘A recognized proposition as to estoppel in pais is that if in the transaction itself, which is in dispute, a party has led another into the belief of a certain state of facts by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act by mistake upon such belief to his prejudice, he cannot be heard afterward as against that other to show that the state of facts referred to did not exist. Since in order to create an equitable estoppel it is not necessary that there should be an intentional moral wrong, negligence, when there is a duty cast -upon a person to disclose the truth, may supply the place of intent, where the effect of such negligence is to work a fraud on the party setting up the estoppel.’ Cravens v. Booth, 8 Tex. [243], 247, 58 Am.Dec. 112; Klein v. Glass, 53 Tex. [37], 44; Eylar v. Eylar, 60 Tex. 315; Ramirez v. Smith, 94 Tex. 184, 59 S.W. 258; Hurt v. Cooper, supra [63 Tex. 362]; Heidenheimer [Bros.] v. Stewart, supra [65 Tex. 321]; Love v. Breedlove, 75 Tex. [649], 652, 13 S.W. 222; National Bond & Mortgage Corp. v. Sam Davis et al. (Tex.Com.App.) 60 S.W.(2d) 429; First Texas Joint Stock Land Bank v. Chapman (Tex.Civ.App.) 48 S.W.(2d) 651.” Sanger v. Calloway, et ux., Tex.Com.App., 61 S.W.2d 988, 994.

It was clearly Burkhardt’s duty, when he knew that Lieberman relied on the apparent power of sale with which he had vested the trustee, and in such reliance would buy the property at the trustee’s sale, to have prevented the sale. While it is perfectly true, under the Blalock case, that no estop-pel by mere representation can operate in favor of one who takes a mortgage from one living on property, it is not true that an estoppel by mere representation cannot operate in favor of an innocent purchaser for value. Burkhardt was under no possible pressure or temptation to state to Lieberman that the property was not homestead, and Lieberman had no reason not to accept such statement. It could be no possible advantage to Burkhardt to deceive Lieberman about the homestead status of the property, and Burkhardt could gain no possible advantage by failing to assert the invalidity of the lien before the trustee sold the property at the foreclosure sale to any innocent purchaser for value. Since Burkhardt had clothed the trustee with apparent authority to sell out the property covered by the deed of trust, on the conditions specified in the deed of trust, and had caused Lieberman to believe, by referring him to the affidavits, etc., that the property was not homestead property; and since Burkhardt had the means at hand to prevent the sale, yet he suffered the trustee to exercise the apparent power of sale with which he had clothed him, and thereby caused Lieberman to part with his money; and since appellants yielded Lieberman peaceable possession, appellants are es-topped now to assert that the property is homestead. • They could have as readily asserted the homestead character of the property before they suffered Lieberman, on the faith of their representations, to buy the property, as they can now assert it; and they could then have asserted it without injustice. But' to permit them, after they have suffered an innocent purchaser for value to buy the property, to assert that the trustee had no actual power to sell the property, after having clothed him with the apparent power, would be unjust.

The same provision of the constitution which makes mortgages on the homestead void, also makes all pretended sales of the homestead void. Yet it is the settled law of this state that where a wife and husband executed a deed which simulates a conveyance of their homestead, so as to create a simulated vendor’s lien thereon, purporting to secure the payment of vendor’s lien notes, they are estopped to assert their homestead right against an innocent third person who relies upon the appearance thus created. Heidenheimer Bros. v. Stewart, 65 Tex. 321; National Bond & Mortgage Corp. v. Davis, Tex.Com.App., 60 S.W.2d 429. In the case of Guaranty Bond State Bank v. Kelley, Tex.Com.App., 13 S.W.2d 69, 71, which dealt with a simulated vendor’s lien, the court said: “Here Mrs. Kelley contributed in an active, affirmative way to the perpetration of a legal fraud. Her intentions may have been, and no doubt were, perfectly harmless and with no actual purpose to wrong any one. But in law her conduct amounted to an affirmative representation that she and her husband had, in good faith, conveyed the homestead and reserved the lien thus assigned to the bank. To permit her now to plead the invalidity of the transaction would be to permit a legal fraud. Having actual notice of the execution of 'the deed retaining the lienj the measure of plaintiff in error's diligence was complete, and it was under no obligation to make further inquiry of defendants in error.” (Italics ours).

The principle on which owners of homestead property who have made a pretended sale of it in order to create a simulated vendor’s lien thereagainst are estopped to assert the invalidity of such simulated vendor’s lien is this, — that having clothed the pretended grantee with apparent authority to give notes secured by vendor’s lien against their homestead property, they cannot show, as against an innocent purchaser, that the apparent authority, with which the pretended grantee had thus been clothed, is invalid. The case for estoppel against appellants is upon the same principle; after having clothed the trustee with the apparent power to sell the land, as not being homestead property, and suffering an innocent purchaser for value to buy under such power, appellants will not now be permitted to show the invalidity of such power.

The argument that the rule of the Blalock case should apply to the situation of Riedel is weaker, if anything, than the argument that it should apply to that of Lieberman. At the time Riedel purchased the three 10-acre tracts, Lieberman was in peaceable possession thereof. He was in possession, as heretofore stated, because appellants had clothed the trustee for the bank with apparent authority to sell same to pay off the notes which the deed of trust purported to secure. In other words, Lieberman was in peaceable possession under and by virtue of instruments that were recorded which, at least of record, vested in him a good and merchantable title thereto. It was apparent of record that appellants had suffered the trustee to exercise the power of sale provided for in the deed of trust. This was entirely consistent with the representation of appellants that they owned no homestead rights in the three 10-acre tracts; it was entirely inconsistent with the ownership of such homestead rights. Appellants had the means at hand, by injunction — or even by warning purchasers — to have readily prevented the exercise of the apparent power of sale by the trustee with which they had clothed such trustee'. It would be a legal fraud on Riedel, after appellants had, in effect, vested in Lieberman the apparent fee-simple title to the three 1-0-acre tracts, and yielded him peaceable possession, and permitted him to enjoy such possession for nearly a year, under recorded instruments showing a fee-simple title in him, to allow appellants to show that the apparent title, with which they had vested Lieberman, 'was in fact void; this after Riedel had purchased the three 10-acre tracts at a purchase price of more than $4,000. Riedel pled, and the jury found upon sufficient evidence, that Riedel was an innocent purchaser for value. The fact that Riedel was a neighbor of appellants and was in a position to know that they were making a use of the premises which fixed on them a homestead character at the time the deed of trust was given in 1932 does not prevent him from being an innocent purchaser for value of the property from Lieberman in 1938. Riedel was not bound to believe that the land was exempt to appellants contrary to their representations and actions. After appellants suffered the deed of trust lien to be foreclosed, which was utterly inconsistent with the homestead character of the land covered thereby, and suffered Lieberman to hold peaceable possession under instruments vesting him with an apparent fee-simple title, Riedel could qualify, to say the least, as an innocent purchaser for value. The jury, in effect, found that Riedel was an innocent purchaser for value, in response to special issues. Riedel’s pleadings and the evidence were sufficient to authorize the submission of those special issues. And the evidence is sufficient to support such findings.

The trial court found that the answers of the jury to the special issues Nos. 10, 27, 28, 29 and 30 are each and all immaterial to the determination of this cause. Special issue No. 27 is copied in full: “Do you find from a preponderance of the evidence that the facts and circumstances surrounding Lieberman at and prior to the Trustee’s sale on April 6, 1937, were such as to have put a reasonably prudent person on inquiry as to whether the 71 acres of land involved in this suit was a part of the homestead of Otto Burkhardt and. wife on January 28, 1932. Answer ‘Yes’ or ‘No’.”

The jury answered “Yes”. However, the undisputed proof shows that Lieberman did inquire of Burkhardt if the 71 acres were homestead property, and was informed that it was not. That is, if he was placed on inquiry, he inquired. And as Lieberman intended to become a competitive purchaser at the sale of the property if it were not homestead property, and this was known to Burkhardt, an inquiry made by ..Lieberman of Burkhardt, taken together with the other facts and circumstances, was all that was required of him. It is quite evident that the other special issues, of the group just referred to, were referred to the jury upon the wrong theory — upon the theory that a purchaser at a foreclosure sale owed the same duty to investigate the homestead character of the property to be sold as would a money lender before taking a lien. At the cost of some repetition, the difference between the situations of the two has been made manifest. The borrower is under a strong temptation to misrepresent the status of his property as being exempt, in order to obtain a loan. But if he is to assert the homestead character of his property to avoid a deed of-trust lien he has given thereon he ought to assert it before innocent third parties have bought it under the deed of trust. When Lieberman, whom Burkhardt knew intended to buy at competitive sale if the property were not homestead, asked him if the property was homestead, it was a legal fraud to tell him it was not. Lieberman had a right to rely on the answer, taken together with the other showing. The court was correct, therefore, in holding the answers to special issues 27-30 immaterial.

Both of the appellees have pled the facts upon which they have respectively invoked an estoppel against appellants, in detail. And an estoppel arises in favor of the appellees, respectively, as a matter of law, upon the proof of such facts. In 17 Tex. Jur. pp. 146-147, it is said: “No intend-ments are made in favor of the plea; the pleader must allege the facts which are essential to the existence of estoppel with particularity and precision. To be proof against special exceptions, the pleading must apparently have averments to the effect that the party was deceived or misled, to his prejudice; but as against a general demurrer, an averment of the facts is, according to some authorities, all that is required.” In the case of Shaw v. Borchers, Tex.Com.App., 46 S.W.2d 967, 970, it was held: “It is urged that plaintiff in error is not in position to ássert an estop-pel against defendant in error because it did not specially plead such issue. It is ordinarily the rule that a party cannot claim the benefit of an estoppel without specially pleading the same. But the rule is otherwise if the matter constituting an estoppel is apparent upon the face of the pleadings.” (Citing authorities.)

If we are correct in holding that the pleadings of appellees are sufficient to have warranted the court in submitting the special issues to the jury; and in holding the evidence is sufficient to support the jury’s findings; and in holding that appellants are estopped to claim the invalidity of the trustee’s sale; and in holding that the ap-pellees are found by the verdict of the jury to be innocent purchasers for value, the other matters become immaterial.

Believing that the judgment of the trial court is correct, it is affirmed.

Affirmed.

On Motion for Rehearing.

Appellants have vigorously assailed our former opinion in 168 assignments of error.

As appears from our original opinion, the dwelling house in which appellants resided at all times pertinent to this case was on land which was separate and disconnected from the land which is involved in this suit. Now it is perfectly clear that it is possible for the owners of a rural homestead to possess and use land in connection with their homestead, and yet own no homestead rights therein. In what way did the possession of the land here involved put Mr. Lieberman on notice that it was a part of the homestead of appellants? Of course if the land here involved were one tract, and appellants resided in a dwelling house thereon, Lieberman would indeed have had to close his eyes in order to avoid the knowledge that the property was homestead property, because the use of the land so possessed would have absolutely been inconsistent with anything except that it formed a part of their homestead. As stated in Eylar v. Eylar, 60 Tex. 315, 319, "It would seem that the sole office which possession performs, in the matter of notice, is to put a person desiring to purchase upon inquiry, and that it has no effect in determining what the inquiry shall be, or of whom it shall be made.” ■But under the facts of this case Lieberman was at liberty to believe that appellants had not committed a. felony by falsely swearing that the land here involved formed no part of their homestead, if it did form a part thereof. No law required appellants to hold all their rural property up to 200 acres as a part of their homestead; and, it would have been possible that appellants might have owned other property making up their complement. In any case an affidavit is a very solemn form of asserting a fact, and false swearing is a felony. The possession of the land here involved by appellants, though it may have been in fact such as to render such land a part of their homestead, was not such as necessarily did so to affect a prospective purchaser with notice of its homestead character, contrary to affidavits by appellants, any more than the possession of the owners in the Eylar case, supra, affected prospective purchasers with notice that the interest of those in possession was contrary to the record showing of their interest.

We stated in our original opinion, in effect, that the deed of trust given by Mr. Burkhardt to the bank was void, and that the apparent power of sale contained therein was void, and any exercise of it could have been enjoined by appellants. Such a statement by us was not necessary to the disposition of the case, and went too far. Whether or not the power of sale contained in said deed of trust was valid, or void, or merely voidable, we leave undecided. But certainly if the deed of trust and the power of sale contained therein were void, as appellants here claim, such power of sale was void ab initio. And appellants cannot, after clothing the trustee with' apparent power of sale, and after having stood idly by and permitting such power of sale to be exercised whereby a third party parts with his money on the faith that such trustee had the power with which he was apparently clothed by appellants, assert, as against such third party, that such apparent power of sale was in fact invalid. Even in cases where one of two persons equally entitled to consideration, as far as their purposes are concerned, must suffer from the delinquency of a third, the loss more properly falls upon him, who, having readily at hand the means of protection, has failed to avail himself of them. Sackenreuther v. Winston, Tex.Civ.App., 137 S.W.2d 93, 97, writ refused. Appellants contend, in effect, that they swore falsely that the land here involved was not their homestead. Can it be said that they are equally entitled to the same consideration that should be accorded to the victim of their deceit?

Appellants’ motion for rehearing, except as to a typographical error which it helpfully calls to our attention and which has been corrected in the original opinion, is overruled.

Motion refused.

Exhibit

“The State of Texas, County of Harris
“Before Me, the undersigned authority, on this day personally appeared Mary Burk-hardt, wife of Otto Burkhardt -⅞»4 ⅛⅛ ⅜¾⅞⅜- well known to me, who having been her oath states: by me first duly sworn on -t-fec-H'-oaths state I am those
“That -Vie-sfe- the owners of ⅛ certain tracts or parcels of land lying and being situated in the County of Harris, State of Texas, described as follows, to-wit:
“Four (4) certain tracts of land in the A. H. Osborne Survey of Harris County, Texas, aggregating 10 acres, 10 acres, 10 acres, and 16 acres, respectively; also 25 acres, more or less, out of the Robert Vince Survey in Harris County, Texas, said tracts in each instance being fully described by metes and bounds in deeds to affiant respectively.
“II.
“That neither said property nor any part is now me thereof ⅛⅜ «¥» -bees used by ¾⅝ as a 'residence or business homestead, or for homestead purposes, and that neither said property nor any part thereof is now a - me home or place of business or claimed by -as as a residence or business homestead, or for residence or business homestead purposes.
"HI.
I
“That ⅝⅜¾-have a home and designated homestead and now reside in the following described property to-wit: 27-½ acres, more or less, out of the A. H. Osborne Survey, Harris County, Texas, located on the Katy Road about 8 miles Northwesterly .from the City of Houston, being the land upon which I have my nursery stock and being the same land purchased by me and described in deed from August Neuen of Harris County, Texas; that the last named
I
property is the only real estate in which ⅞⅞-claim a right of homestead or of exemption under the laws of the State of Texas; that I
¾⅞-have no intention of using the property first above described or any part or parts thereof in any way whatsoever ’for business or residence homestead purposes and hereby solemnly renounce all homestead and exemption rights thereto.
I
“Wo make this affidavit and sworn representation with the full knowledge that 'The First National Bank of Houston, Houston, Texas, Trustee, will ’advance certain sums me tots in the form of a loan, the payment of which is to be secured by a lien on the property first hereinabove described and it my is ⅜⅞?- purpose and plan that the payment of .me my said money shall be made to ¾⅜- for ⅞⅛? account by said bank on faith in the truth of the statements and representations herein made.
“Mary Burkhardt
“Otto Burkhardt
“Sworn To And Subscribed Before me, the undersigned authority, this the 25th day of March, A. D. 1932.
“K. E. Wright
“Notary Public in and for “[Seal.] Harris County, Texas.
• “Sworn To And Subscribed Before me,' the undersigned authority, by Otto Burk-hardt, who makes oath to the above in substance and in fact, this 5th day of August, A. D, 1933.
“[Seal.] K. E. Wright
“Notary Public in and for Harris County, Texas.”

       See p. 291.