author: WALTHALL, Justice.

text:
    RIDGE et al. v. WOOD et al.
    No. 3940.
    Court of Civil Appeals of Texas. El Paso.
    April 18, 1940.
    Rehearing Denied May 9, 1940.

      Montgomery & Taylor, of Edinburg, D. B. Chapin, of Mission, and Tuck Chapin, of San Antonio (A. W. Taylor and W. R. Montgomery, both of Edinburg, on the brief), for appellants.
    Davenport & Ransome, of Brownsville (Hill, Greer & Franki, of Mission, and Harbert Davenport, of Brownsville, of counsel), for appellees.
   WALTHALL, Justice.

This is a suit instituted August 21, 1937, by Lee Ridge, Olla Mae Revard, and McGuire N. Revard, as the trustees of an express trust called Revard Development Company; Olla Mae Revard, as widow and survivor of C. E. Revard, deceased; and the other appellants as children or grandchildren, and heirs of C. E. Revard, deceased, and their respective husbands and wives, against D. G. Wood and the other appellees named, sued as purchasers under D. G. Wood, to set aside a judgment of the District Court of Hidalgo County, Texas, 93rd Judicial District of Texas, rendered June 4, 1926, in a suit styled “D. G. Wood, et als. v. Ola Mae Revard, Executrix of the Estate of C. E. Revard, et ais.,” and numbered 5517 on the docket of said court, in which D. G. Wood, as plaintiff, recovered as against Olla Mae Revard, executrix of the estate of C. E. Revard, deceased; Olla Mae Revard, individually ; McGuire Revard, Clara Robertson, Ernest Robertson, Nora Stotts, Jack Stotts, Elzema Revard, Jim Osage Revard, Margaret Lena Heard, Cyrus Heard, Cora Perry, Sam Perry, Clarence Revard, Ed Clifford Revard, individually and as owners of an interest in Revard Development Company, an express trust; and against said Revard Development Company, an express trust, title’to and possession of two adjacent tracts of land out of Porcion No. 84, Ancient Jurisdiction of Camargo, now in Starr County, Texas, properly described by metes and bounds; appellants Lee Ridge, Olla Mae Revard, and McGuire N. Revard, as trustees of said Revard Development Company, seeking also to recover said two tracts of land from appellees herein, holding and claiming under appellee D. G. Wood; and for an accounting of rents and profits, especially including the value of oil produced on one of such tracts.

The trial court having sustained a general demurrer to appellants’ original petition filed August 21, 1937, appellants took leave to amend, and, on October 23, 1937, filed their first amended original petition, to which, on September 8, 1938, appellees’ general demurrers were likewise sustained by the court; and appellants having de-dined to further amend, the court entered its final judgment dismissing their said suit; from which judgment of dismissal, appellants have prosecuted this appeal.

The petition is too lengthy to copy here, so we state what we understand to be the pertinent facts alleged. They are substantially as follows:

On February 12, 1920, appellee D. G. Wood, being then lawfully seized and possessed of the two tracts of Starr County land involved in this suit, conveyed same to C. E. Revard, reserving his vendor’s lien to secure the payment of forty vendor’s lien promissory notes, aggregating $29,500 principal, executed and delivered to him by said C. E. Revard in evidence of deferred payments of equivalent amounts of purchase money; said vendor’s lien notes, numbered from one to forty, inclusive, and bearing interest at the rate of seven per cent per annum, being (except note No. 40 for $250 principal) each for the sum of $750 principal, maturing quarterly, four in each year, on the first days of April, July, October and January; each note providing that failure to pay any of said notes, or any installment of interest thereon when due, should, at the option of the holder, mature all said notes; Wood’s said deed of conveyance to C. E. Revard being recorded April 13, 1920, in the Deed Records of Starr County.

On May 22, 1920, said C. E. Revard, his wife, appellant Olla Mae Revard, and his son, appellant McGuire N. Revard, filed a declaration of trust in the Deed Records of Starr County, Texas, naming themselves as trustees, which provided for a trust estate called Revard Development Company, divided into 800 shares of the par value of $100 each, represented by certificates to be issued to the beneficiaries of the trust; vesting in the trustees absolute control over all the affairs of the trust; including, expressly, the power to lease and purchase land, and to institute and defend any and all proceedings at law or in equity in respect to the property rights of the trust; and that "No title or estate of any property at any time held by such trustees * * * * is to vest in the shareholders, but that same shall be and remain in said trustees, their successors and assigns, and that the sole interest of the shareholders shall be in the obligation of such trustees to hold and manage the trust estate and account for its income and proceeds at their discretion.”

The general purpose of such trust, as alleged by appellants, was, “To own and operate and maintain irrigated farms and the necessary irrigation system therefor, and to purchase and hold, and own all real and personal property incident thereto.”

In the event of a vacancy among the trustees, all property of the trust vested in the remaining trustees, who were likewise empowered to fill such vacancies.

On June 8, 1920, by deed recorded November 10, 1920, in the Deed Records of Starr County, said C. E. Revard and Olla Mae Revard conveyed said two tracts of Starr County land, so purchased by them from D. G. Wood, to C. E. Revard, Olla Mae Revard, and McGuire N. Revard, as trustees of said Revard Development Company; part of the consideration for such conveyance being their agreement to pay $28,750 remaining due and unpaid on the purchase money for said land. Aside from this contract of assumption, the consideration was $13,550, paid by the issuance to C. E. Revard and Olla Mae Revard of a like amount of shares of the capital stock of said Revard Development Company; and $6,000 in shares of capital stock of Revard Development Company were issued to Cora Muller (now Cora Perry, of appellants) ; and 800 shares of capital stock of Revard Development Company were held in trust (presumably by the trustees above named) for the other children and grandchildren of said C. E. Revard.

Said trust was actually managed by said C. E. Revard from its creation in June, 1920, until his death in 1924; during which period, appellants aver, he made improvements on said two tracts of the value of $15,000 and paid to appellee D. G. Wood the alleged sum of $9,750, principal and interest on the purchase money.

Said C. E. Revard died, testate, February 11, 1924; and by the terms of his will, duly probated in Bexar County, Texas, devised his entire estate to appellant Olla Mae Revard, his wife, who was also named and appointed, and qualified as, independent executrix of the estate.

After the death of said C. E. Revard, appellants Olla Mae Revard and McGuire N. Revard paid to appellee D. G. Wood various amounts (alleged, except as to one payment of $1,500, to be to appellants unknown, but averred as being $5,000 in all) as payments of principal and interest on the purchase price of said land.

On December 31, 1925, appellee D. G. Wood brought his suit in the District Court of Hidalgo County, Texas, docketed as No. 5517, and styled “D. G. Wood v. Olla Mae Revard, Executrix, et als.,” complaining of appellant Olla Mae Revard, individually, and as executrix of the estate of C. E. Revard, deceased, her nine children (appellants herein, some of them under different names), and Revard Development Company, an express trust (naming Olla Mae Revard, the estate of C. E. Revard, and eight others, appellants here, including McGuire N. Revard, children of said C. E. Revard and Olla Mae Revard, as owners of said express trust) to recover the amount due, principal, interest, and attorney’s fees, on promissory vendor’s lien notes Nos. 8 to 40, inclusive, of the series of forty vendor’s lien promissory notes executed and delivered by C. E. Revard to D. G. Wood to evidence deferred payments of purchase money for said two tracts of Starr County land; and for foreclosure of his vendor’s lien.

Citations directed to them having been issued and served in said suit, appellant Olla Mae Revard and her said children employed M. S. Hallam, an attorney at law practicing his profession at San Antonio, Texas, to represent them in said suit; and pursuant to certain representations made to them and their attorney by appellee D. G. Wood, agreed with him that he might amend his petition in said cause No. 5517, including therein a count in trespass to try title to recover the 2,175 acres of land in Starr County, on which he held said vendor’s lien; which he did by a first amended original petition filed March 29, 1926. Olla Mae Revard and six of her children waived service of citation on such amended pleading and appeared' and answered thereto; two of her children, who were minors, were duly cited, and M. S. Hallam, the attorney representing Olla Mae Revard and her six children who had answered, was appointed guardian ad litem to represent them in said suit. Said M. S. Hallam also filed an answer for said Revard Development Company; but three grandchildren of C. E. Revard and Olla Mae Revard, children of a daughter, then deceased, were not made parties to the suit.

On June 4, 1926, said cause No. 5517 came on for trial; appellants made no defense; the evidence adduced was reduced to writing, and an agreed statement thereof, signed by counsel, was filed among the papers in said cause; and the court rendered judgment that plaintiff (appellee here), D. G. Wood, recover title to, and possession of, said Starr County land, as against Revard Development Company, an express trust; Olla Mae Revard, executrix of the estate of C. E. Revard, deceased; Olla Mae Revard, individually; McGuire Revard, Clara Robertson, Ernest Robertson, Nora Stotts, Jack Stotts, Elzema Revard, Jim Osage Revard, Margaret Lena Heard, Cyrus Heard, Cora Perry, Sam Perry, Clarence Revard, Ed Clifford Revard,, and Revard Development Company.

Immediately after the entry of said judgment, appellants Olla Mae Revard and McGuire N. Revard, as trustees of Revard Development Company, delivered to ap-pellee D. G. Wood possession of the Starr County land described in said judgment, together with irrigation pumps and machinery thereon situated. The only equities alleged by appellants as a basis for setting aside said judgment of June 4, 1926, in said cause No. 5517 are:

Olla Mae Revard and each of her children and grandchildren are Osage Indians, uneducated, and utterly ignorant of business affairs and legal matters of all kinds; and the affairs of Revard Development Company were, until his death on February 11, 1924, administered entirely by said C. E. Revard, deceased;

Appellee D. G. Wood was a highly educated man, with extended experience in business and legal matters. Said C. E. Revard, as the active member of said trustees of Revard Development Company, paid to him large sums, alleged to be $9,750 in all, on the principal and interest of the forty vendor’s lien notes delivered to him by C. E. Revard for deferred payment of purchase money on said Starr County land; and after the death of C. E. Revard, appellants Olla Mae Revard and McGuire N. Revard, as surviving trustees, paid to appellee D. G. Wood further large sums, the amount to them unknown, except for one payment of $1,500, but alleged to be $5,000 in all. Olla Mae Revard and McGuire N. Revard, before and at the time of making said last-mentioned payment of $1,500 on said notes, demanded of said D. G. Wood a statement of the total amounts so paid by them, and by said C. E. Revard, which he promised to make them, but never did; and shortly after having received from them such last-mentioned payment of $1,'500, he instituted suit on all said notes in said cause No. 5517. After having employed said M. S. Hallam as their attorney to represent them in said suit, said Olla Mae Revard and her nine children, and her said attorney again made demand upon appellee D. G. Wood that he render them an exact accounting of the amounts due on said deferred payments, and offered, and were ready, willing, and able, to pay the amounts due thereon to the date of filing of said suit; hut said D. G. Wood informed them that the full amount of principal, interest and attorney’s fees on notes 8 to 40, inclusive, was due; and that nothing had been paid on said notes Nos. 8 to 40; and refused to give them any further statements, and agreed only to give them credit for any payments they could prove by written receipts or can-celled checks; and also advised them:

That he had the right to, and had, accelerated the time of payment of said notes Nos. 8 to 40, inclusive; and

That the Revard Development Company declaration of trust created a partnership, and that the trustees and all shareholders were partners therein, and, as such, liable, jointly and severally, for the payment to him of the full amount of principal, interest, and attorney’s fees due on said vendor’s lien notes Nos. 8 to 40; that he would take judgment against them, jointly and severally, thereon, in said cause No. 5517; sell said Starr County land under the judgment of foreclosure; buy it in for a nominal sum, credit it on such judgment; and collect the unpaid balance of his judgment by proceedings against their funds held for them, as Osage Indians, by the government of the United States, and thereby realize the entire amount of his debt as against them, or some of them; but that if they would agree to permit him to recover the Starr County land in said cause No. 5517 without foreclosure proceedings, he would waive his right of action against them for the amount due and. unpaid on said purchase-money notes; and appellants, being inexperienced in legal matters, and having no knowledge of the real effect of said acceleration clause .in said notes, or of the difference between a partnership and an express trust, acceded to said demands of appellee D. G. Wood and permitted him to take judgment in said cause No. 5517 for title to and possession of said Starr County lands.

If appellee D. G. Wood represented to appellants, as alleged, that C. E. Revard and Revard Development Company had paid only seven of the forty vendor’s lien notes given to him by C. E. Revard in part payment for the land in suit, and which notes Revard Development Company had agreed to pay, with interest on the other notes to February 20, 1921, he only repeated the allegations of his original petition in cause No. 5517, filed December 31, 1925, and if more was paid, as now alleged, issue as to the amount of such payments was tendered in the former suit; and that even though C. E. Revard and Olla Mae Revard paid the additional sums that they now allege, still sixteen of the notes were past due and unpaid when the former suit was filed; and if D. G. Wood represented to them, as appellants allege, he had, on December 31, 1925, the right to accelerate the maturity of the other notes and declare them due, and had exercised that right by filing suit, he .only reiterated the provision on the face of each of the notes, which provide: “It is understood and agreed that failure to pay this note, or any installment of interest thereon, when due, shall at the election of the holder of them, or any of them, mature all notes this day given by C. E. Revard to said D. G. Wood in payment for said property.”

If D. G. Wood represented to appellants, as alleged, that the shareholders in Revard Development Company were liable, as partners, on its contract of assumption to pay said notes, he represented no more than the terms of Article 6137, R.C.S. of Texas, authorized providing for the individual liability of stock holders or members in unincorporated joint stock companies. We refer to only a few cases construing the statute: Winters Mutual Aid Ass’n v. Reddin, Tex.Com.App., 49 S.W.2d 1095, 1096; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Griffing Nurseries v. Texas National Bank, Tex.Civ.App., 100 S.W.2d 425; Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554.

From appellants’ petition it appears that on June 4, 1926, when final judgment was rendered in cause No. 5517, title to the land in the suit was in Revard Development Company, subject to the vendor’s lien retained by D. G. Wood in his deed to C. E. Revard, to pay the forty purchase-money notes, sixteen of which, at the time of the judgment, were past due and unpaid. From the petition it appears to us that Revard Development Company was the only necessary party defendant in D. G. Wood’s count in trespass to try title in his first amended original petition in said suit.

The trial court had jurisdiction to render the judgment which the court rendered in favor of D. G. Wood, plaintiff therein, for title to and possession of said land; it further appears to us that the Revard Development Company and those suing here as its trustees, and the other appellants, are concluded by that judgment whether or not they were proper parties to or were before the court in said suit, for the reason: they are suing here primarily to vacate the final judgment rendered in said cause No. 5517, styled “D. G. Wood v. Olla Mae Revard, Executrix,

It appears that all the parties plaintiff in the present suit (appellants), other than the three who sue as children and heirs of Carrie Revard Davis, deceased, and Lee Ridge, who sue herein only as trustees, were defendants; appellee, D. G. Wood was the plaintiff in said cause No. 5517.

Appellants plead at length the proceedings and judgment in said cause No. 5517. From the petition it appears that all the defendants in that suit were regularly before the court, represented by an attorney of their choice; the minors represented by the same attorney as guardian ad litem.

We have found no equitable grounds pleaded or facts shown that we deem suffi-ciqnt to void the judgment.

But had the trial court jurisdiction, and has this court jurisdiction to review cause No. 5517?

We understand the law to be, as contended by appellee, that a judgment may be set aside after the expiration of the term of court at which it was rendered, and by an action in the nature of a bill of review, only in cases where litigants, through no fault of their own, and due to the acts and conduct of the opposing party, have been deprived of a valid defense of a meritorious cause of action, where the loser alleges that he was misled by the opposing party’s opinions as to the matters of law, or as to the probable result of the suit, or as to the practical effects that might follow from a given judgment. We think the above statement is sustained by 'the case of Winter's Mutual Aid Ass’n. v. Reddin, supra, in which Judge Sharp refers to many cases establishing the rule substantially as above, to the effect that the, essential elements must be alleged showing in particular that the judgment complained of or sought to be voided was obtained through the wrongful conduct of the opposite party, unmixed with fault upon the part of the complainant, and also-that the complainant has a meritorious defense which, if heard, would probably'bring about a different result.

We have not found in the allegations of appellants’ petition such facts alleged as authorize a review or to set aside the judgment rendered in cause No. 5517, in the District Court of Hidalgo County. No equitable grounds are pleaded to set aside such judgment, other than as above stated. The only other grounds sought to be alleged for vacating the judgment are:

The judgment did not purport to divest the title held by Olla Mae Revard and McGuire Revard, as trustees of the trust estate known as Revard Development Company, in whom title to the Starr County land was vested by the deed from C. E. Revard; and said Revard Development Company, not being a legal entity, but a trust, could not sue or be sued, and said judgment was as to such trust a nullity.

Article 6133, R.C.S., provides that any unincorporated joint stock company doing business in this State may sue and be sued in any court in this State in its company name; and that the individual members are not necessary parties to such suits. The courts have repeatedly held that the provisions of Articles 6133-6137, R.C.S., apply to so-called express trusts of the character of the one involved here. The only point sought to be made here is that C. E. Revard conveyed the land in the suit to the named trustees of Revard Development Company instead of to the company itself by name. They were all before the court. Harvey Co. v. Braden, Tex.Civ.App., 260 S.W. 655; Andrews v. Manhatten Tex. Pet. Co., Tex.Civ.App., 252 S.W. 878; Richardson v. Beasley, Tex.Civ.App., 50 S.W.2d 420.

This court had the same question before it in Limpia Royalties Co. v. Cowden, Tex.Civ.App., 94 S.W.2d 481.

Petitioners who seek, by an action-in the nature of a bill of review, to set aside a judgment rendered at a former term of the court, and from which theré was no appeal, cannot be heard' to urge defenses that they could have presented in the former suit, unless upon a showing that they were there prevented from so doing by wrongful acts or conduct of the opposing party, recognized in equity as fraud or mistake; nor can such petitioners complain of judicial errors, however prejudicial, which could have been corrected on appeal.

Such judgment is conclusive as to all defenses which could have been raised, in the absence of extrinsic facts, such as fraud, accident or mistake, justifying relief. Long v. Martin, 116 Tex. 135, 287 S.W. 494; White v. Burch, Tex.Civ.App., 33 S.W.2d 512; Smith v. Pegram, Tex.Civ.App., 80 S.W.2d 354; Bearden v. Texas Co., Tex.Civ.App., 41 S.W.2d 447; Id., Tex.Com.App., 60 S.W.2d 1031; Wetherell v. Santex Gas & Oil Co., Tex.Civ.App., 93 S.W.2d 543.

It is the uniform holding of our courts that the contract of sale is treated as executory between vendor and vendee and those holding under them until the purchase money is fully satisfied, and that the vendor has the alternative remedy, so long as the purchase money is not paid, to rescind the sale contract and recover the land upon the strength of his superior title as an unsatisfied vendor. Schrock v. Campbell, Tex.Civ.App., 34 S.W.2d 324; Campbell v. Schrock, Tex.Com.App., 50 S.W.2d 788; Carey v. Starr, 93 Tex. 503, 56 S.W. 324; Douglass v. Blount, 95 Tex. 569, 67 S.W. 484, 58 L.R.A. 699.

If the first suit was tried and decided on its merits, and not on exception to joinder of parties, it is no answer to plea of former judgment that some of the parties in the second suit were not parties to first suit. White v. Burch, supra.

Judgment in favor of one suing to enforce the superior legal title to rescind the executory contract of sale and recover the land, as in suit No. 5517, is res judicata of all equitable claims that might have been included. Toler v. King, Tex.Civ.App., 11 S.W.2d 360, 361; Noble v. Empire Gas & Fuel Co., Tex.Civ.App., 20 S.W.2d 849; Stone Cattle & Pasture Co. v. Boon, 73 Tex. 548, 11 S.W. 544; McPherson v. Johnson, 69 Tex. 484, 6 S.W. 798, where it is held under such circumstances the vendor loses his right of rescission provi-ded the vendee takes the advantage of the vendor’s action and pays the purchase money.

The above decisions, and others we have read, rest upon the theory that under the facts of the present case the vendor Wood holds the paramount title to the land until the purchase money is paid, and that on default of payment he may sue and recover the land from the vendee or any one holding under him.

Under the most favorable construction of appellants’ pleadings, as we view them, they allege only that because they were misled by Wood’s opinion as to various matters of law, they permitted him in cause No. 5517 to take judgment against them in. trespass to try title, instead of compelling him to proceed with his suit on the notes and for foreclosure of his vendor’s lien. Appellants’ action is dependent upon vacating that judgment rendered in June, 1926. Appellants’ original and first amended original petitions were filed in August, 1937.

We have concluded the court was not in error in sustaining the demurrer.

We have found no reversible error.

The case is affirmed.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    TRAVELERS INS. CO. v. BEASLEY.
    No. 5485.
    Court of Civil Appeals of Texas. Texarkana.
    May 16, 1940.
    Rehearing Denied May 23, 1940.

      Thompson, Knight, Baker, Harris & Wright, Jas. E. Henderson, and Pinkney Grissom, all of Dallas, for appellant.
    Bramlette, Levy & Dotson, of Long-view, for appellee.
   JOHNSON, Chief Justice.

This suit was filed by appellant, the Travelers Insurance Company, against ap-pellee, E. D. Beasley, to set aside an award of the Industrial Accident Board. Appellee answered and by cross action asked compensation for total loss of sight of one eye, alleged to have been sustained by appellee in the course of his employment, by being struck with a nail while working as a carpenter for M. Clint Brown Company, a corporation, of which appellant was the compensation insurance carrier. Trial to the court without a jury resulted in a judgment for appellee, from which appellant has perfected its appeal.

Appellant challenges the judgment of the trial court as being without support in the evidence, in that, it is contended, the undisputed evidence shows that appellee, at the time of sustaining his injury, was Treasurer of M. Clint Brown Company, an office provided for in its by-laws; and for that reason (notwithstanding he was in fact employed by the corporation at that time as a carpenter) he may not be deemed or held to be an “employee” within the meaning of that term as used in the Workmen’s Compensation Acti

Article 8309, Sec. 1a, R.C.S. of 1925, reads as follows: “The president, vice-president or vice-presidents, secretary or other officers thereof provided in its charter or by-laws and the directors of any corporation which is a subscriber to this law shall not be deemed or held to be an employe within the meaning of that term as defined in the preceding section hereof, and this notwithstanding they may hold other offices in the corporation and may perform other duties and render other services for which they receive a salary.” The above section of the statute has been construed as excluding the benefits of the Workmen’s Compensation Act from a person who is holding an office provided for in the charter or by-laws of a corporation, even though he was also employed by the corporation to do other and different work for which he received a salary and in the performance of which he sustains an injury. Lumbermen’s Reciprocal Ass’n v. Bohlssen, Tex.Civ.App., 272 S.W. 813; Bell v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 43 S.W.2d 290. The question of whether a person is an officer of a corporation at the time of receiving an injury is a matter in the first instance to be determined by the court or jury trying the facts. Bell v. Texas Employers’ Ins. Ass’n, supra. If the finding of the court upon that issue is not without support in the evidence, it should be sustained by this court, 3 T.J. 1102, Sec. 771.

That appellee, E. D. Beasley, was-regularly employed by M. Clint Brown Company as a carpenter, for the performance of which labor he was paid a salary, and in doing such work he received his injury, is not disputed. The-only issue is as to whether or not he-was in fact an officer of said corporation at the time he sustained the injury. Upon that issue appellant introduced in evidence the application ' for articles of incorporation of M. Clint Brown Company, incorporated for the purpose of contracting to erect, construct and' repair buildings and structures. The application is dated June 27, 1935, signed and sworn to by M. Clint Brown as owner of 98 of the 100 shares of corporate stock, and by Mittie Brown, owner of one share, and by E. D. Beasley, owner of one share, of the value of $100 per share, and which recites that the above-named persons áre directors for the first year. Appellant introduced the by-laws of the corporation which in part provides that '“each director shall be a stockholder, and shall receive no compensation for his services as a director. A transfer by a director of all his stock in the corporation shall operate as a resignation of his office”; and that “the officers of this corporation shall be a President, a Secretary and a Treasurer, who shall be elected for a term of one year and shall hold office until their successors are duly elected and qualified.” And that “The treasurer shall have custody of all money and securities of the corporation and shall give bond in such sum and with such sureties as the directors may require, conditioned upon the faithful performance of the duties of his office. He shall sign all checks of the corporation, shall keep regular books of account and shall submit them, together with all his vouchers, receipts, records and other papers, to the directors for their examination and approval as often as they may require; and shall perform all such other duties as are incident to his office.” Appellant introduced the “minutes of the first meeting of the directors” not dated but signed by M. Clint Brown and Mittie Brown. It recites that M. Clint Brown was elected President, Mittie Brown, Secretary, and E. D. Beasley, Treasurer of the corporation; and minutes of directors’ meetings dated July 5, 1935, June 1, 1936, and July 1, 1936; which last three minutes were signed by M. Clint Brown, Mittie Brown and E. D. Beasley.

Appellee sustained his injury October H, 1936.

Appellee testified, in. substance, that he was a carpenter, 42 years of age, with very little education, not capable of keeping books or records, had worked since he was a small boy, had worked for. M.. Clint Brown since 1919; that he was' working for him at the time Mr. Brown incorporated his business; that at Mr. Brown’s request he agreed to sign the application for the charter just for Mr. Brown to get the charter, for the corporation; that he did not put any money into it; that Mr. Brown said he would have him appear as faking one share of the stock; that appellee’s name was to be used to get the business incor7 porate.d; that .Mr. Brown said that ap-pellee would not have anything .to do with the corporation;, that appellee transferred the one share of stock back to Mr. Brown- just as soon as it was issued and never took it into his possession; (the record shows that this share of stock was transferred by appellee to M. Clint Brown July 30, 1935) ; that appellee had no other stock in the corporation, or any interest in it; that he never attended a. meeting of the stockholders or directors ; that he never agreed to . assume any office in the corporation; that the minutes which he signed, he signed when he came in from work, but did not know what it was he was signing; that he never agreed to be Treasurer of the company and never accepted the office of Treasurer; that he never took care of any money, or of any bills and never kept any records, receipts or made any disbursements and did not keep any bank account, and never in any way qualified as Treasurer of the corporation; that he was not present at the meeting of the board of directors when his name .was put down in the minutes as Treasurer and did. not know- of it until Mr. Brown told him, and it was then understood between him and Mr. Brown that he was not to be Treasurer; -that Mr. Brown told him he was not expected to take the Treasurer’s office..

. “Q. Do you .mean when you didn’t resign you were still Treasurer? A. No, I never have been Treasurer.

“Q. Never have been Treasurer of the Company? A. No, sir.”

In a sworn statement introduced in evidence by appellant, M. Clint Brown; president of the corporation, states; “Affiant 'further says that while the minutes show the election of E. D. Beasley as Treasurer, the said E. D. Beasley had nothing to. do with the creation of said office, or the naming of himself as a Treasurer; that the Treasurer’s office was never, in fact, filled; that E. D. Beasley did not assume any duties of. such office, and that it was understood by and between the officers of said Corporation and the said E. D. Beasley that he was not expected to fill the office of Treasurer, and that E. D. Beasley did not accept such office, nor assume any duties incident thereto; that it was understood by and between M. Clint Brown, President of the' Company, and E. D. Beasley that he was not Treasurer, and this affiant says that the said E. D. Beasley severed all connection, if any he ever had, with the office of Treasurer of said Corporation, by an understanding; between himself and the real officers of such concern;”

Upon this evidence the trial judge found :

“I further find that E. D. Beasley as an accommodation to the organizer of the M. Clint Brown Company, a private corporation, permitted his name to be used as one of the three persons organizing said corporation. I find that he in fact had no interest in the corporation and never purchased any stock in said corporation or owned any and that the stock that was written up in his name in the stock book of the corporation was held in trust at the time for M. Clint Brown.
“I find that shortly after the organization of the corporation of M. Clint Brown and long before E. D. Beasley sustained his injuries to his eye, E. D. Beasley transferred the only share of stock which had been written up in his name on the books of the corporation but which had never been delivered to him, assigning and transferring said stock to M. Clint Brown and that at said time he told the said M. Clint Brown, who was the president of said corporation and its principal stock holder, that he would have no further connection with said corporation. I find that E. D.- Beasley severed all connection with said corporation as a stock holder, director and treasurer, if he were ever in fact the treasurer of said company, long before he sustained the injury to his eye.
“I find that at the time E. D. Beasley sustained the injury to his eye complained of in this suit he was not a stock holder in the M. Clint Brown Company or a director or a treasurer and at said time had no official position with said M. 'Clint Brown Company and that his only relationship to M. Clint Brown Company at said time was that of employee of said Company.
“I further find that the by-laws of M. Clint Brown Company, Inc., required that the treasurer of said company should enter into a bond. I find that E. D. Beasley never accepted the position of treasurer in said corporation and never acted in the capacity of treasurer for said corporation and never executed a bond as provided for in the by-laws of said corporation, and never in fact became Treasurer of said corporation, which was by specific agreement between said E. D. Beasley and M. Clint Brown, the president of said company at the beginning of its activity.”

We are unable to agree with appellant’s contention that the trial court’s finding is without any support in the evidence.

The judgment will be affirmed.


author: STOKES, Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. FOWLER.
    No. 5128.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1940.
    Rehearing Denied May 27, 1940.

      ■Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    O’Dowd & O’Dowd, of Waco, for appel-lee.
   STOKES, Justice.

This suit was instituted in the district court by appellee, W. S. Fowler, in the nature of an appeal from the final ruling of the Industrial Accident Board upon a claim filed by him for compensation under the provisions of the Workmen’s Compensation Law, art. 8306 et seq., R.C.S.1925, Vernon’s Ann.Civ.St. art. 8306 et seq. The record shows appellee was employed by Phillips Petroleum Company for some twelve years prior to December 12, 1937, and that appellant was the compensation insurance carrier. Appellee alleged substantially that on March 5, 1936, while engaged in the course of his employment as a welder, he was injured in a fall of some fifteen feet from a cooling tower, and that on October 20, 1937, he was again injured while engaged in the course of his employment, this last injury resulting from an explosion in an electric switch box which, during the process of welding, had ceased to operate. The accident occurred when he was engaged in an effort to adjust it. The record shows that after the first accident, consisting of his fall from the cooling tower, ap-pellee was, by other employees, carried to the company’s doctor, who examined him and reported a fracture of his wrist and bruises in the region of his back and hip. As a result of this first injury, appellee was disabled for a period of five weeks, during which appellant paid him compensation at the rate of $20 per week. In examinations made by the company’s physician, Dr. Brooks, consisting of X-ray photographs and physical examinations, he failed to find any fractures of vertebrae or other bones in the region of the injury, and at the end of the five weeks period, he advised appel-lee that, if appellee felt able to do so, in his opinion appellee had sufficiently recovered that he may return to his work. Appellee testified that he returned to his work but for several weeks he avoided heavy work and left the performance of most of it to his helper, but the record shows he continued in his employment until the second accident which occurred October 20, 1937. At that time he was engaged in the operation of a welding device which was propelled by an electric current being transmitted from a high line through ail electric switch which was encased in a box a short distance from the place where he was working. The current was, for some reason, interrupted and appellee went to the switch box to ascertain the cause. In an effort to adjust the difficulty, he pushed upon a switch and immediately an explosion and flash occurred which resulted in burning appellee’s face and ears and injuring his eyes. When the flash occurred appellee lurched backward and wrenched his back in some manner and that, according to his testimony, thereafter he had severe pains in the region of his back, shoulders and neck, in addition to rather severe burns upon his face, eyes and ears. Following this injury he ceased work for a few days and again returned to his Welding job, which he continued until December 12, 1937, at which time he ceased work altogether. He testified, in effect, that his condition grew steadily worse after his injury of October 20, 1937, until the 12th of December, when he reached the conclusion that he was disabled. On the 12th of January, 1938, appellee, at his own request, was examined by Dr. Maxfield at Waco, who testified that appellee was weak, undernourished and generally low in vitality; that he showed a generally debilitated condition and was running temperature. He said that his X-ray films disclosed a fracture of the upper border of the ilium which extended into the sacroiliac and was about two inches in length. He described other fractures which he said were serious and well-defined. He said the conditions he found were sufficient to produce the pain of which appellee complained, and that in his opinion the pain would continue and that the injuries had incapacitated ap-pellee from performing the regular duties of a workman at physical manual labor.

No claim for compensation was filed with the Industrial Accident Board by appellee for either of the alleged injuries at the times he received them but he was paid compensation by appellant for five weeks following the first injury and a report of both injuries was made to the Industrial Accident Board by his employer. Appellee alleged total permanent incapacity by reason of the injury of October 20, 1937, when the electric switch box exploded and, in the alternative, that if his incapacity did not result from that injury, then it was attributable to the accident and injury of March 5, 1936, or to a combination of both of the injuries. He alleged that, although he did not file with the Industrial Accident Board his claim for compensation within the six months prescribed by the statute, he had good cause for not doing so in that he believed his injuries were of a trivial nature and that they would not result in serious or permanent incapacity.

The case was submitted to a jury upon special issues, all of which were answered favorably to appellee, including the necessity for the payment of the compensation in a lump sum, and the court rendered judgment in his favor against appellant for $5,-425.22 to be paid in a lump sum.

The judgment was based upon the finding of the jury to the effect that appellee was totally and permanently incapacitated, 90% of which was attributable to the injuries he received in the first accident of March 5, 1936, and 10% being attributable to the injuries received in the accident of October 20, 1937.

Appellant duly excepted to the judgment, gave notice of appeal, and presents the case in this court upon appropriate assignments of error and propositions of law in which it attacks the judgment and contends it should be reversed, or reformed as to the 90% of incapacity which was attributed to the injury of March 5, 1936, upon the grounds, first, that appellee failed to show good cause for the delay from March 5,1936, until February 4, 1938, in filing with the Industrial Accident Board his claim for compensation; secondly, error in the form of special issue No. 31; thirdly, that the court refused to submit the case to the jury upon the theory pleaded and proved by appellee in reference to the bases of his reasons for delay in filing his claim with the Industrial Accident Board; fourthly, error in the instruction given to the jury in connection with the definition of the term “partial incapacity”, and, fifthly, the refusal of the court to give a tendered precautionary instruction in reference to the manner in which the jury should consider the circumstances under which appellee was discharged or ceased his employment.

The jury found that appellee sustained an injury on March 5, 1936, which incapacitated him to'perform labor and that he sustained another injury on October 20, 1937. They found that as' a result of the two injuries he became totally incapacitated to work on the 12th of December, 1937. They found that until about the time he filed his claim for compensation he believed his injuries of March 5, 1936, would not disable him; that such belief prevented him from filing his claim for compensation until the time it was filed, and that a reasonably prudent person, situated as he was, would, for that reason, have delayed the filing of his claim for compensation for such length of time.

The testimony shows that during most, if not all, of the time from March 5, 1936, until October 20, 1937, when appellee received his second injury, he was not only .not incapacitated for work but apparently performed the duties of his employment without serious difficulty. He said at times his condition was not fully normal but that he did not believe his injuries were serious, principally because of the advice which had been given him by Dr. Brooks, the company’s physician, to the effect that his injuries of March 5, 1936, consisted merely of bruised muscles and tissues in the region of his back and hip, but his testimony indicates that after the second injury of October 20, 1937, his condition grew steadily worse until he ceased employment on December 12, 1937. A month later he consulted Dr. Maxfield at Waco and was advised by him that he had suffered fractures of bones in the region of his hip and back and that he was then, and had for some time been, unable to perform any sort of labor. He said that when he attempted to do so he had continuous pain; that his eyes were seriously affected; that he had pains in his back and shoulders; that he was nervous, and that he could not perform any kind of work. He said that his hip and back ached and at times he had excruciating pains in that region. He said that these conditions continued and that he was suffering from them at the time of the trial.

The first contention made by appellant is brought forward under its first, second and third propositions of law. Sec. 4a of Art. 8307 provides that notice of an injury shall be given to the association or employer within- thirty days after the injury and that unless a claim for compensation with respect thereto shall have been made within six months after the occurrence of same, no proceeding for compensation shall be maintained. The section further provides, however, that, for good cause, the Industrial Accident Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice and the filing of the claim with the Board. The statute does not give a definition of “good cause” and it is the rule, therefore, that the question of whether or not the circumstances which occasion a delay in filing the notice or claim for compensation constitute good cause is a question of fact to be determined by the court or jury trying the case unless the evidence is of such a conclusive nature that no reasonable grounds for good cause may be said to exist. Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Texas Employers Ins. Ass’n v. Little, Tex.Civ.App., 96 S.W.2d 677; Traders & General Ins. Co. v. Jaques, Tex.Civ.App., 131 S.W.2d 133. While it is true that, following his first injury, appellee resumed his employment and continued therein for something like eighteen months before receiving his second injury on October 20, 1937, his testimony indicates that at least at times during that period he was not in a normal physical condition. He believed, however, 'that the injury was of a trivial nature and constantly entertained the belief that he would regain his normal physical condition. He testified that this belief was based largely upon the statements of Dr. Brooks, the company’s physician who examined him in connection with his first injury and that, until he was examined by Dr. Maxfield, he did not know he had suffered fractures of any of his bones. After receiving the second injury on October 20, 1937, however, he testified that his condition grew steadily worse until December 12, 1937, when he came to the conclusion that he was completely disabled. It seems that he had for some time entertained the thought that he .was approaching a condition of total incapacity and, when he ceased his employment on December 12, 1937, he was strongly of the opinion that he would not be able again to perform physical labor. His testimony indicates, however, that, at that time, he had no special reason to attribute his incapacity to either or both of his injuries. A month later, on January 12, 1938, he consulted Dr. Maxfield at Waco and was apprised of the fractures. Dr. Maxfield testified that either of the injuries could have caused appellee’s disabled condition, but that, in his opinion, it was caused by the injury of October 20, 1937. We think the testimony warrants the conclusion that, until that time, appellee did not realize he was seriously incapacitated by the injuries received in either of the accidents. The testimony shows that about that time he consulted his attorneys at Waco and they began an investigation as to the status of his claims and within a month after his examination by Dr. Maxfield, the claim upon which this suit is based was filed with the Industrial Accident Board.

From the testimony we do not believe it can be said that a condition existed in reference to appellee’s delay in filing his claim for compensation which would impel the conclusion that good cause did not exist for the delay. Rather, in our opinion, it reveals ample grounds for the conclusion and finding of the jury that appellee believed, until about the time he filed his claim with the Industrial Accident Board, that his injuries would not. disable him and that such belief prevented him from filing his claim for compensation. . We think, furthermore, that ample ground is shown for the finding of the jury that a reasonably prudent person, situated as ap-pellee was, would have delayed the filing of his claim. While these grounds may not be abundant, yet they were sufficient to form a basis for the jury’s verdict and, it being a question for the jury to decide, we are not authorized to disturb it.

Under its third proposition, in connection with this matter of “good cause”, appellant contends that, even if it should be admitted that appellee showed good cause for his delay from March 5, 1936, to December 12, 1937, at that time, according to his own testimony, he knew he was incapacitated and he did not show good cause for failure to file his claim for more than thirty days after December 12, 1937. The record' shows that he ceased work altogether on the last mentioned date and that it was his belief at that time that he was approaching total incapacity or perhaps it had already arrived. The fact that for eighteen months, according to his testimony, he did not know the cause of his physical decline, but believed he would ultimately recover and' that physicians had told him his injuries were not of a 'serious nature, was sufficient, we think, to warrant appellee in entertaining doubt even after December 12, 1937, that his incapacity was attributable to either, or a combination of both of his injuries. In fact he testified that he believed until he consulted Dr. Maxfield on January 12, 1938, that practically all, if not, in fact, all of his disability was attributable to his injury of October 20, 1937. We do not think his testimony requires the conclusion that he definitely believed or that any reasonably prudent person would have believed under the circumstances that he was becoming, or was, totally incapacitated at that time as a result of either of the injuries. His conclusion in that respect seems not to have been reached until he was examined by Dr. Maxfield. His claim for compensation was filed not later than February 4, 1938, which was less than thirty days after he had definite reason to believe his condition was the result of the injuries.

Appellant’s first. contention, which is presented by its first, second and third propositions of law, is, therefore, overruled.

Appellant’s second contention has reference to the form of special issue No. 31, in which the jury was requested to find whether or not appellee believed his injury of March 5, 1936, would not disable him. The special issue is as follows: “Do you find from a preponderance of the evidence, if any, that the plaintiff, W. S. Fowler, believed until about the time that his claim was filed that his injury or injuries of March 5, A. D. 1936, if any, would not disable him?” The jury answered : “He did so believe.” In answer to the following special issues Nos. 32 and 33, they found that such belief prevented appellee from filing his claim and that a reasonably prudent person situated as ap-pellee was would have, for such reasons, so delayed the filing of his claim. The complaint made by appellant of the form of special issue No. 31 is that it was not sufficiently specific; that, instead of asking the jury if such belief on the part of the appellee extended until “about” the time he filed his claim, it should have asked the jury if he so believed until the time he actually did file his claim with the Industrial Accident Board. The basis of this contention is that, by using the word “about” the jury was .authorized to find-in favor of appellee on the issue although they may have been of the opinion that the time during which appellee believed his injuries would not disable him ended more than thirty days before his claim was filed. We do not find any error in the form of the special issue. If, however, there should be some merit in appellant’s contention with reference to it, any vice which it may have contained was removed by the two special issues which followed. In special issue No. 32 the jury was asked if they found that such belief prevented appellee from filing his claim “up and until the time that it was filed.” In special issue No. 33 the jury was asked if they found that a reasonably prudent person would, for that reason, delay the filing of his claim “for such length of time.” The jury were instructed not to answer the 32nd and 33rd special issues unless they had answered special issue No. 31 in the affirmative. Taking all three of the special issues together, it is plain they refer to one subject and that is the period of time over which appellee entertained the belief as to the extent of his injuries and the termination of that period, the latter of which is specifically brought out in the 32nd and 33rd special issues.

The next contention made by appellant .is that in submitting the question of “good cause” the court did not follow the theory pleaded and proved by appellee. It contends that appellee’s theory was that his belief that his injuries would not result in his disability was based solely upon what Dr. Brooks had told him, and the court submitted the question in a general manner, that is, he asked the jury generally if appellee believed his injuries of March 5, 1936, would not disable him, instead of limiting the special issue to what appellee believed as a result of what Dr. Brooks had represented to him. It is true that appellee testified his belief in this respect was based largely upon what Dr. Brooks- had represented to him, but we think the testimony is sufficient to imply other bases for such belief. He testified that about December 12, 1937, his condition was very bad and that he was forced to cease his labors. He said that he was not a physician and did not know what was causing his disability. The evidence shows also that he consulted Dr. Maxfield at Waco concerning the same matter which indicates that he did not implicitly accept Dr. Brooks’ representations. This phase of appellee’s case was not based on any alleged fraud or other ground which would require the specific finding here contended for by appellant. In our opinion the special issue properly submitted the question and the record gives no reason for the belief that the jury's verdict in this respect was based upon any issue or question not raised by the pleadings and the evidence.

The fourth contention pertains to the definition given to the jury by the-court of “partial incapacity” in connection with special issues Nos. 35, 36 and 37. The definition was as follows: “Partial incapacity, as that term is used in this charge or any special issue given you herein, shall have the following meaning: It shall mean any degree of incapacity to work, less than total incapacity, as defined herein. You are further instructed that a person cannot be totally and partially incapacitated at the same time. If the plaintiff was totally incapacitated to any extent for any period of time, he could not be partially incapacitated for such period of time. Stating it the other way (meaning the same thing) if the plaintiff was partially incapacitated to any extent for any period of time, he could not be totally incapacitated for such period of time.” Appellant contends this amounts to a general charge which should not have been given in a case being tried upon special issues. Art. 2189, R.C.S., provides that in submitting special issues, the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury properly to pass upon and render a verdict on such issues. The term “partial incapacity” is unquestionably a legal term. It has a special significance under our Workmen’s Compensation Law and is one the court should always define in his charge to the jury. The purpose of the provision requiring the court to submit explanations and definitions of legal terms is that the jury may be enabled properly to pass upon and render a verdict upon such issues. The court is required not only to give definitions but also explanations of such terms. ’ The definition of material terms used in the compensation law is usually prescribed by statute and if the court is of the opinion that further explanations should be given, it is his duty to give them. He should confine them, however, to explanations and not extend them to the proportions of a general charge. The explanation given by the court in this instance indicates that the court may have been of the opinion that confusion might arise in the minds of the jurors concerning the distinction between the terms “partial” and “total” incapacity. If they had become so confused and found that ap-pellee was partially incapacitated and also totally incapacitated during the same period of time, their verdict would have presented a conflict and a confusing situation would have resulted. The explanation was given in connection with, and as a part of, the definition of the term. It evidently was .not considered by the trial judge as being separate therefrom or as being in the nature of a general charge and, under the circumstances in which it was submitted, in our opinion it was not such. Traders & General Ins. Co. v. Holtzclaw, Tex.Civ.App., 111 S.W.2d 759, and authorities there cited.

The remaining contention made by appellant is that the court erred in refusing to give in his charge to the jury a special instruction requested by it to the effect that no inference unfavorable to appellant should be drawn from any supposed breach of duty on its part on account of the circumstances under which appellee ceased working for his employer. This undoubtedly would have been of the nature of a general charge if it had been given in the manner requested by appellant. The occasion ’for the requested charge arose during the examination of the witness Blaylock in which he testified that he thought the reason given by the Phillips Petroleum Company for discharging appellee was somewhat unreasonable and that it made the witness mad. He said he thought it was a little unfair. No objection was made to the statements of the witness at the time, the testimony was given, nor was any request made at that time that the court limit its consideration. The requested instruction was in no sense a definition or explanation of any legal term used in the court’s charge and we are unable to agree with appellant that the court erred in refusing to include it in his charge in a case being submitted upon special issues.

We have carefully examined all of the assignments of error and propositions of •law submitted by appellant in its brief and, in our opinion, none of them presents reversible error.

The judgment of the court below will be affirmed.

On Motion for Rehearing.

In its motion for rehearing appellant contends that we erred in the original opinion, in holding, in effect, that the jury was warranted under the testimony in finding that appellee was prevented from filing his claim for compensation for the injury of March 5, 1936, until it was filed, by the belief that his injury of that date would not disable him. It contends with-much earnestness that no excuse was shown for the delay from January 12th to February 4, 1938. We held that appellee filed his claim on February 4, 1938, which was twenty three days after he had been examined by Dr. Max-field at Waco and had been informed by Dr. Maxfield that the bones in the region of his hip and back had been fractured. The holding referred to the formal claim. The record shows that on January 13, 1938, the day after appellee had been so informed by Dr. Maxfield, his attorneys wrote a letter to the Industrial Accident Board in which they notified the Board that appellee sustained the injuries mentioned while engaged in the course of his employment; that he was given medical treatment and attention by his employer’s physician; that he had resumed the duties of his employment and continued therein until about the 15th of December, 1937, at which time he became totally disabled as a result of'the injury sustained on March 5, 1936. They stated in the letter that they were checking the files of the Industrial Accident Board for the exact date the accident happened; that they were notifying the company that appellee intended to rely upon the date shown by the files, and asked the Board to furnish them with proper blanks to be filled out by them. As stated in the original opinion, no formal claim had been filed by appellee up to that time, but his employer had filed with the Board a notice of the injury and ap-pellee had been paid by appellant for five weeks disability immediately following the injury. The Board, therefore, had a record of the injury and on January 25, 1938, appellee’s attorneys again wrote the Board, asking that the claim of appellee be set for a hearing at the earliest convenient date, again asserting that appellee had been totally disabled since December 15, 1937, from doing any character of work and would be permanently disabled. On January 31, 1938, the Board wrote appellee’s attorneys, acknowledging receipt of the letter last mentioned and informing them that the claim for the injury mentioned had been closed by final compensation settlement receipt signed by appellee and filed with the Board April 30, 1936. The letter informed appellee’s counsel that in order to reopen the case it would be necessary to file medical evidence signed by a reliable physician, to the effect that the claimant suffered disability beyond the period for which he had been paid compensation, and enclosed two sets of forms for use in filing formal claims. On February 2, 1938, appellee’s attorneys notified the Board that they had signed the notice of injury and would file a formal affidavit and physician’s statement when the case was set for hearing. On February 4, 1938, the Industrial Accident Board acknowledged receipt of the attorney’s letter enclosing formal notice of injury and claim for compensation for the injury of March 5, 1936, and also for the injury of October 20, 1937. Further correspondence between counsel and the Board reveals that on February 9th the physician had been requested to furnish the report and that it was forwarded to the Board February 16, 1938.

From the above facts it will be seen that the day following appellee’s examination by Dr. Maxfield, the Board and the employer were notified by his attorneys of his claim for compensation additional to that which he had received immediately after the injury. When the Board informed the attorneys that in order to reopen the claim, it would be necessary to file medical evidence and a formal claim upon the usual blanks being used for that purpose, they had the latter executed and forwarded to the Board within seven or eight days. It appears, therefore, that the process of filing the claim for additional compensation for the injury of March 5, 1936, really extended over a period of some twenty two days. Correspondence with the Board was begun on the day following that upon which appellee was informed of the real facts as now claimed by him and seems to have been conducted with reasonable promptness. Considering these facts, we cannot agree with appellant that the record is devoid of any excuse for the delay in filing formal claim immediately following January 12, 1938, when appellee became informed for the first time that bones in the region of his hip and back had been fractured and that his injuries and disability were probably attributable thereto.

A careful consideration of the motion fails to convince us that the case was not properly disposed of in our original opinion, and the motion will be overruled.


author: Stokes, justice.,

text:
    KNIGHT et al. v. TANNEHILL BROS., Inc., et al.
    No. 5154.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1940.
    Rehearing Denied May 27, 1940.

      Bean, Evans & Bean and Vickers & Campbell, all of Lubbock, for plaintiffs in error.
    R. P. Moreland, of Plains, and Cren-shaw, Dupree & Milam, of Lubbock, for defendants in error.
   Stokes, justice.,

Plaintiffs in error, R. L. Knight, Jr., Martha E. Davis, joined by her husband, G. E. Davis, Eva Ruth Weiss, joined by her husband, J. R. Weiss, and Alton E. Knight, a minor, appearing by his next friend and legal guardian, Martha E. Davis, filed this suit against L. B. Tan-nehill and wife, Lillian B. Tannehill, C. C. Tannehill, John Q. Tannehill, Mrs. Lillian Hink’le and her husband, Clarence E. Hinkle, Martha E. Tannehill, a feme sole, and Maud E. Tannehill, a feme sole, who appear here as defendants in error. Plaintiffs in error, except G. E. Davis and J. R. Weiss, are the surviving children and heirs at law of R. L. Knight, who died intestate May 9, 1928, and his wife, Susanna Knight, who died intestate April 10, 1934. The defendants in error constitute all of the former stockholders of Tannehill Brothers, Inc., a family corporation, which was dissolved after the negotiations involved in the suit were inaugurated. L. B. Tannehill managed all of the affairs of the corporation and also all of the affairs of the defendants in error pertaining to the corporation and its properties after its dissolution. When in this opinion reference is made to Tannehill, therefore, it alludes either to the corporation before its dissolution or the defendants in error as successors to its rights and properties after its dissolution, there being no difference as far as the matters here involved are concerned whether the incidents referred to happened before or after the dissolution of the corporation.

The suit is in the statutory form of trespass to try title and it is shown by other allegations and proof that R. L. Knight, at the time of his death, was seized and possessed of real estate consisting of twelve sections of land in Yoakum County, Texas, and six sections in the State of New Mexico. At the time of his death R. L. Knight was indebted to Tannehill Brothers, Inc. in the sum of $104,804.47, evidenced by a promissory note dated December 1, 1926, and due three years after date. The note was secured by a deed of trust on the Yoakum County land, a lien on the land in New Mexico, and a chattel mortgage lien on several hundred head of cattle, being all of the cattle owned by him. He was also indebted to F. B. Collins Investment Company in the sum of $8,000, secured by a lien on the New Mexico land; to H. E. Trippett $1,246.32, and tp the State of Texas for original purchase money on part of the Yoakum County land in the sum of $8,453.25. All of this indebtedness was secured by valid liens on the whole or portions of the-land.

Although the Yoakum County land was community property, after the death of R. L. Knight his surviving wife, Susanna Knight, agreed with L. B. Tannehill, acting for the corporation of Tannehill Brothers, that general administrations should be taken out in Texas and New Mexico upon the estate; waived her right to be appointed administratrix, and agreed that administrators selected by Tannehill should be appointed. This plan.seems to have been agreed upon in view of the large amount of indebtedness owing by the estate, and in order, through an administrator’s sale, ultimately to place the legal title in Tannehill so that he could make sales of oil and gas leases and royalty interests in the land and apply the proceeds to the payment of the indebtedness owing by the estate. Plaintiffs in error alleged that this agreement encompassed the provision that Tannehill would take and hold the legal title in trust for Mrs. Knight and her children and that when the indebtedness of the estate, including that held by Tannehill, was paid, the portion of the lands and oil interests that had not been sold by Tannehill would be reconveyed to Mrs. Knight or her heirs or legal representatives.

The record shows that administrations, both in Yoakum County, Texas, and in New Mexico, were duly perfected; that Wm. Q. Boyce of Amarillo, in Potter County, was duly appointed administrator in Texas, and J. J. Lane was appointed administrator in New Mexico, both of whom were selected by Tannehill. Soon after his appointment, Wm. Q. Boyce made application to the probate court for an order to sell all of the twelve sections of land located in Yoakum County, Texas. The application was granted and the twelve sections were sold to Tannehill for a recited consideration of $63,580; the assumption of the taxes against the land for the year 1928, and the assumption of the balance of the original purchase price due the state of Texas.

Without going into detail as to the administrations and the manner in which the property of the estate was disposed of, it will suffice to say that, after sale of all of the cattle and after Tannehill had sold a considerable number of leases and oil interests in the Texas land and applied the proceeds to the indebtedness of the estate, it still was indebted to Tannehill in excess of $50,000. The debts to Trip-pett and the Collins Investment Company had been paid and the total indebtedness then amounted approximately to $60,000.

All of the property belonging to the estate located in Texas was disposed of and the Texas administrator filed his final account with an application that he be discharged. On August 19, 1929, the account was approved, the Texas administrator discharged, and the estate in Texas closed.

After Tannehill had purchased the Texas land through the administration, a well was drilled on a portion of it in an effort to discover and develop oil. About the same time a similar well was drilled near the New Mexico land. Both of these wells resulted in “dry holes” which had the effect of condemning the entire properties as potential oil lands, destroyed their value as oil properties, and put an end to further revenue from that source.

On or about October 16, 1929, after the administration in Texas had been closed and after the oil wells had been drilled and resulted in failures to discover oil, and while the estate was still indebted in the sum of approximately $60,000, Mrs. Knight and Tannehill made an agreement to the effect that Tannehill would retain and hold as his own property all of the Texas land and one section in New Mexico, in consideration of which he agreed to cancel all of his indebtedness against the estate, and the administrator of the estate in New Mexico would convey to Mrs. Knight the remaining five sections of land in New Mexico. This agreement was in parol and consummated in a conversation and negotiations between Mrs. Knight and L. B. Tannehill conducted in the office of the attorney for the New Mexico administrator at Roswell. Shortly thereafter J. J. Lane, the administrator of the estate in New Mexico, conveyed the five sections in that state to Mrs. Knight, the deed reciting a consideration.of $17,-600, which, the testimony shows, was not paid nor intended to be paid.

The record is voluminous, the statement of facts alone consisting of 620 pages, but it will be seen from the foregoing summary that the result of the administrations and negotiations between the parties was that all of the indebtedness of the estate, amounting approximately to $130,000, was discharged and the property, both real and personal, disposed of, leaving the estate in possession of five sections of land in New Mexico, free and clear of all encumbrance.

Mrs. Knight died April 10, 1934, and this suit was filed March 14, 1936, by plaintiffs in error as the surviving children and heirs at law of R. L. Knight and his wife, Susanna Knight, its purpose being to recover of the Tannehills the twelve sections of land in Yoakum County. In addition to the ordinary allegations of a suit in trespass to try title, plaintiffs in error alleged the various details concerning the death of their parents, appointment of the administrators, purchase of the land by Tannehill, the sales by him of the oil and gas leases, and other details concerning the handling and disposition of the real and personal properties of the estate. They alleged that the administrator’s sale of the Texas land to Tannehill was void for reasons which they set out, but if not void, that he acquired the title in trust for their deceased mother and the plaintiffs in error, the surviving children, and that the conveyances to him were for the purpose only of placing the title in Tannehill in order that he may sell oil' and gas leases, pay the indebtedness due him and other creditors of the estate, and then convey back to them whatever portion of the land that may be left. They allege in this connection that, although the administrator’s deed conveying the land to Tannehill recited a consideration of $63,580, it was not paid to the administrator nor credited on the indebtedness of the estate and numerous other details supporting their general allegation that the acquisition of the title was in trust and seeking to ingraft upon the administrator’s deed an express trust under which Tannehill was obligated to convey the land back to them, since the trust had been executed or partially failed in its purpose. They tendered and offered to discharge and pay any balance that may be due and owing to Tannehill upon his indebtedness and prayed for an accounting and recovery of the land.

Defendants in error answered by general and special exceptions, general denial, plea of not guilty, and the three and five years statutes of limitation. They made special denials of the numerous allegations of plaintiffs in error and included in their answer a cross-action in the nature of trespass to try title.

The case was submitted to a jury upon special issues, in answer to which the jury found, in substance, that prior to the administration in Texas there was an agreement between Mrs. Knight and L. B. Tan-nehill that Tannehill Brothers, Inc., should acquire title to the twelve sections of land in Yoakum County, Texas, through the probate court so that leases and royalty could be sold by Tannehill to pay the debts of the Knight estate, and that Tannehill would then reconyey the land, after payment of such debts, to plaintiffs in error and their mother. - They further found that Susanna Knight and L. B. Tannehill entered into a settlement agreement by which the twelve . sections of land in Yoakum County and .one section in New Mexico were surrendered to Tannehill Brothers, Inc., and that Tannehill Brothers would cancel the balance of its debt against the Knight estate and surrender all of the lands in New Mexico except the one section.

Based upon the- verdict of the jury the’ court, on the 9th of January, 1938, rendered judgment, granting plaintiffs in error certain relief and recovery of minor sums of money, but denying them any relief upon their suit for recovery of the title to the land. Plaintiffs in error filed a motion for a new trial which was overruled by the court, and they have brought the case to this court upon a writ of error.

There are a number of assignments of error and propositions of law brought forward in the brief and urged by plaintiffs in error, but the controlling issues are presented by two contentions which are, substantially, as follows:

First, that the acquisition of the title by Tannehill through the administration proceedings under the agreement between him and Mrs. Knight constituted an express trust under which Tannehill held the title as trustee in subordination to the equitable title held by Mrs. Knight and plaintiffs in error; that the trust having failed in part or been executed as far as possible, they were, entitled to recover the portion of the land remaining in the hands of the trustee. This contention is controverted by defendants in error who contend that the agreement did not create an express trust and, under the law, could not do so because it did not effect a separation of the legal title from the equitable title to the land. They contend that such separation of these elements of title not having been consummated, the negotiation amounted only to an agreement to convey land and, being in parol, it was void under the statute of frauds.

Secondly, plaintiffs in error ’contend that the agreement between Mrs. Knight and Tannehill at Roswell, New Mexico, after the administration in Texas was closed, to the effect that Tannehill would cancel his indebtedness against the estate and take complete title to the twelve sections of land in Texas and one section in New Mexico, Mrs. Knight to receive five sections of the New Mexico land in full settlement of the affairs of Tannehill and the estate, was in parol and, therefore, void under the statute of frauds. In this connection they assert that, in all events, such agreement was not effective to pass title or as a conveyance to Tannehill of the interests of the children of Mrs. Knight, they having inherited their interest in the land from their father and not being parties to such agreement. This contention of plaintiffs in error is controverted by the assertion of defendants in error to the effect that, conceding, for the sake of argument, that- the original agreement under which Tannehill procured the title to the lands' through the probate proceedings did create a trust as contended by plaintiffs in error, the subsequent agreement made at Roswell, New Mexico, after the close of the Texas administration in which Mrs. Knight and Tannehill undertook finally to settle the affairs of the estate and divide the land was a valid and enforcible contract and did not violate the statute of frauds. They assert in this connection that Mrs. Knight was the survivor in the community of herself and her deceased -husband, R. L. Knight; the estate was then indebted in a large sum of money; the alleged trust itself was created in parol, and Mrs. Knight as survivor of the community was clothed with power and authority to consummate the transaction in the manner detailed.

These two contentions of plaintiffs in error controverted, as they are, by defendants in error, present the questions to be decided. As we have stated, they are the controlling issues in the case and we shall discuss them in their order.

First: It has been the law in Texas throughout its entire judicial history that where a verbal promise of a grantee to make certain disposition of lands constitutes the means whereby he obtains the legal title a court of equity will compel performance by him of his verbal agreement. In the early case of Clark v. Haney, 62 Tex. 511, 50 Am.Rep. 536, the Supreme Court said: “Where a verbal promise of the defendant to make a certain disposition of lands is the means of obtaining to himself the legal title, so that in fact he practices a deception upon his grantor by so obtaining the lands, and then holding and dealing with them as his own, a court of equity will compel him to perform his verbal agreement. All that is necessary is that the grantor has been duped by such promises into assigning his right to property, and that the trust has been afterwards repudiated.”

In the still earlier case of James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743, Chief Justice Hemphill pointed out a marked difference between our statute of frauds and the English act for the. prevention of frauds and perjuries in that the English statute provides that no action shall be brought upon any contract or sale of lands, tenements or heredita-ments or any interest in or concerning them unless the same be in writing; whereas the express provisions of our statute are, in substance, that no action shall be brought upon any contract for the sale of lands, tenements and hereditaments unless the same be in writing. It was observed in the opinion that a contract for the sale of lands, tenements or heredita-ments -or any interest in or concerning the same is widely different from a contract for the mere sale of lands, and, though a trust or confidence such as the one under review in that case might be embraced in the English statute, it certainly is not embraced by either the terms or spirit of the Texas law. It was held in that case that the provisions of the English law, which have been adopted by most of the states of the Union, prohibit the creation of a trust in lands unless manifested or proved by instruments of writing or result by implication of law; but under our law, express, as well as constructive trusts, may be proven and sustained by parol evidence. Our courts have consistently adhered to these early established rules and interpretations and it is not an open question in this state as to whether or not an express trust may by parol be ingrafted upon a deed of conveyance absolute upon its face. Parol evidence is not only admissible to establish such a trust but such evidence does not contravene the rule which forbids the introduction of parol evidence to vary the terms of a written instrument. Watts v. Woffard, Tex.Civ.App., 239 S.W. 321; Lyons v. Texorado Oil & Gas Co., Tex.Civ.App., 91 S.W.2d 375; Tieman v. Dyer, Tex.Civ.App., 114 S.W.2d 669; Faville et al. v. Robinson et al., 111 Tex. 48, 227 S.W. 938; Milliken v. Anderson, Tex.Civ.App., 294 S.W. 921; Masterson v. Amarillo Oil Co., Tex.Civ.App., 253 S.W. 908.

It is true that Mrs. Knight did not execute a deed conveying the land to Tannehill and the facts of this case are not exactly on all fours with some of those upon which the decisions in the above cases were based. In other words, if a parol trust was ingrafted, it was not, in this case, ingrafted upon a deed executed by the cestui que trust as in some of those cases. But, in our opinion, the difference in this respect does not change the rule nor remove’this case from its ’ operation. The property of the estate was community property of R. L. Knight and his surviving wife, Susanna Knight, and Mrs. Knight, therefore, had the right to qualify as community administratrix. She also had the right and possessed full authority and power under the law of this state to sell and dispose of the property of the community, including its lands, for the purpose of discharging the community debts. She had the further right under the law to become the general administrator in preference to others. The community estate of herself and deceased husband owed large sums of money which were secured by liens on the land and personal property. The major portion of the indebtedness was held by Tannehill, and Mfs. Knight, according to the record, and as found by the jury, relinquished these rights and permitted the title to the property to be passed through the administrations by administrators selected by Tanne-hill as a means of accomplishing the same thing she had the right to accomplish through a deed executed by her encumbered 'by a parol trust. We can see no difference as far as the principle of law is concerned between the course taken by the parties in this case and the course which Mrs. Knight unquestionably had the right to pursue through the execution of a deed and it is our conclusion that the legal effect of the acquisition by Tannehill of the title to the Texas land in the manner in which it was acquired by him and in pursuance of the agreement which, according to the findings of the jury, he had with Mrs. Knight, was to ingraft upon the conveyance under which he procured the title a parol trust and that he held the legal title in trust for Mrs. Susanna Knight and her children.

The contention of defendants in error that in order to establish a trust in real property there. must be a separation of the legal title from the equitable title is undoubtedly a correct proposition of law. 1 Pomeroy’s Equity Jurisprudence, 4th Ed., par. 147; McCamey v. Hollister Oil Co., Tex.Civ.App., 241 S.W. 689; Wheeler v. Haralson, 128 Tex. 429, 99 S.W.2d 885, 886. Defendants in error stress the recent holding of the Supreme Court in the case last cited and contend with much force that the instant case is controlled by the principles therein announced. We do not agree with them in this contention. The Supreme Court held in the Wheeler case that no trust was created in the negotiations between the parties in that case, all of whom were heirs of D. I. Haralson, deceased. The court said that it conclusively appeared that plaintiffs, the Haralsons, by their deed to Mrs. Wheeler, parted with both the legal and equitable title to the land. This was so because Mrs. Wheeler had thereafter conveyed the land to the bank which was the largest creditor of the estate of the deceased father, and the bank reconveyed it to Mrs. Wheeler, retaining a vendor’s lien to secure certain notes executed by Mrs. Wheeler, ostensibly as part of the purchase price, but in reality, no doubt, representing the original amount of the indebtedness to the bank. The Haralsons alleged and claimed that they had an agreement with Mrs. Wheeler to reconvey to them their interests in the land after the indebtedness was refinanced ánd that this agreement created a trust which they were entitled to have enforced. They stated in their brief, however, that they did not ask to have the property reconveyed to them free and clear of the notes and vendor’s lien which had been created by Mrs. Wheeler in favor of the bank, but that the purpose of the litigation was to require Mrs. Wheeler to reconvey to them their undivided interests encumbered with the liens which she had placed thereon. The court said: “It is thus seen that plaintiffs have fully ratified the validity of the existing vendor’s lien retained by the bank in conveyance to Mrs. Wheeler, and this necessarily constitutes a recognition that the deed of September 27, 1927 [by which they conveyed their interest to Mrs. Wheeler], conveyed, as it purported to do, the complete legal and equitable title to their interests in the lands, subject to a parol agreement on the part of Mrs. Wheeler to reconvey.” It was because of this recognition on the part of the Haral-sons to the effect that their deed had conveyed to Mrs. Wheeler the complete title both legal and equitable to their interest in the land that the court held these two elements of the title had not been separated, but were vested in Mrs. Wheeler by their own deed of September 27, 1927. Therefore, the court concluded, no separation of the legal from the equitable title had been effected and no trust could have arisen. The court 'cited the case of Foster v. Ross, 33 Tex.Civ.App., 615, 77 S.W. 990, as being in point and announcing the principle upon which the Wheeler case was decided. In the Foster case it was contended that a vendor had made an agreement to purchase - land sold by him at a sale under foreclosure of his vendor’s lien notes and convey the same to another in case a specified sum was paid. It was held that no trust was created. and it will readily be seen that the appellee in that case did not hold, and could not have held, either the legal or equitable title. Neither had been conveyed or retained by him nor by anyone for him nor had anything else been done that effected a separation of the legal from the equitable title. The agreement was, therefore, nothing more than a verbal promise to convey. Likewise in the case of Dietrich v. Heintz, 44 Tex.Civ.App. 602, 99 S.W. 417, cited by the court in the Wheeler case and the other cases therein cited.

The contention of defendants in error in this connection that the agreement found by the jury to have been made between Mrs. Knight and Tannehill concerning the acquisition of the title by him, negatives any idea of trust because the whole title was conveyed to Tannehill by the administrator’s deed, is not tenable because, under the evidence and as found by the jury, Mrs. Knight, by verbal agreement with Tannehill retained unto herself and her children the equitable title which was a portion or an element of the title of which she was then possessed. This had the effect of separating the equitable from the legal title and placing the latter in Tanne-hill in trust for the purpose of disposing of oil and gas leases, paying the indebtedness of the estate and reconveying what was left to the original owners. The fact that Tan-nehill assumed the taxes and an indebtedness of $8,000 due the State of Texas as original purchase money of the land when he procured the title under the administrator’s deed did not have the effect of relieving the deed of its encumbrance by an express trust. According to the record, he was under no obligation to assume such indebtedness. His contract with Mrs. Knight did not require him to do so and his assumption of the taxes and the state debt was his own voluntary act as far as his obligation to Mrs. Knight under their agreement was concerned.

Under the facts revealed by the record before us and the well established rules of law in this state as revealed by the decisions of the courts which we have cited, and many others, we must conclude that Tannehill acquired the title to the Texas land belonging to the Knight estate under an express trust to deal with it in the manner shown in the foregoing discussion.

Secondly: The second and remaining controlling question presented by the briefs involves the extent and legal effect of the parol agreement entered into at Roswell, New Mexico, between Mrs. Knight and R. L. Tannehill concerning the final adjustment of the property rights and business affairs existing between them. The administration in the probate court of Yoa-kum County, Texas, had been closed and the administrator discharged prior to the making of this agreement. The' property of the estate, at least that portion of it which was located in Texas, was community property of Mrs.- Knight and her deceased husband. She had not qualified as community administratrix but had consented to a general administration and, under the law, she could not have interfered with the property or made any disposition of it during the pendency of the general administration. The first question presented here is, did she have legal authority as survivor of the community, after the general administration had been closed and the administrator discharged, to make a binding agreement as community survivor and dispose of the community property for the purpose of discharging community debts? Counsel state in their brief that they have been unable to find a decision by any court in which this question has been decided, and the rather extensive search we have made has failed to reveal any such decision. The record warrants the conclusion, however, that Mrs. Knight was still a widow on November 16, 1929, when the agreement was made. She undoubtedly had such authority prior to the institution of the administration proceeding and, although such power and authority were suspended during the pen&ency of the administration, undoubtedly it was restored to her when the administration was closed and the administrator discharged. Art. 3680, R.C.S.1925, provides that upon the marriage of the surviving wife she shall cease to have control or management of the community estate. Regardless of this statute, however, if she be divorced from her second husband, such control and management are restored to her upon the theory that such general authority, although she may not have qualified as community administratrix, arises out of her interest in the community property and not from her relation to her deceased husband. It is, therefore, held by the courts that when she becomes the wife of another and subject to his control, her legal status is so. changed that she cannot act without his concurrence and her power and authority over the community property of the former marriage should be suspended during the continuance of the second marriage. ]Jpon termination of the latter marriage, however, she is restored to her status as a feme sole, and her status in- respect to . the community property being the same, she then-'becomes possessed of all of the qualifi-catipns-, which existed before the second marriage. Summerville v. King, 98 Tex. 332, 83 S.W. 680. It is, therefore, the policy of our law that; where the powers .and authority of a survivor in community are suspended by the happening of some event which creates a condition incompatible with their free and untrammeled exercise, and such . condition is. relieved or changed in. such -manner as that .the incompatibility or impediment is-,removed, ’the powers and authority which-the survivor possessed prior to the happening of such event are .restored and he may: proceed as if ;the event-had not happened. The general .administration ;in no sense destroyed the ’rights, power aiid authority of Mrs. Knight as survivor of the community, but merely -.suspended .them-because,-to p.ermit their exe'rcise. during -the pendency of the administration would be to permit, a menacing interference with the" orderly processes Of the probate .court and the efficient management, control and -.disposition of the property by the administrator. After the administration was closed and the administrator,, discharged, 'these reasons no longer existed;; ' It must be held, therefore, that . th,e rights, powers and authority, of. Mrs. rJCnight as; the survivor -in community Were restored. We -hold, therefore, that Mrs. . Knight had authority to make the agreement that .yras consummated between her ajad R. -L, Tannehill at Roswell on November 16, 1929,.by .which the matters between them were'adjusted, the title to the Texas land was vested in him, and' Mrs.' Knight received the five'Sections of land in- New . Mexico. It is hardly necessary to say that under the law of this state a’ survivor Of the community has power and authority to sell and convey the property of the community in order to adjust and discharge .the community debts and this without going through the formal' processes .of perfecting community administration and-giving the required bond. Griffin v. Stanolind Oil & Gas Co., 133 Tex. 45, 125 S.W.2d 545, and authorities there cited.

Mrs. Knight’s power and authority as survivor of the community of herself and her deceased husband having been restored to her after the close of the administration proceedings in Texas, and existing, as they then did under the law, the only question remaining is whether or not she could accomplish the adjustment of the property rights, acquire for the community the title to the land in New; Mexico and settle in Tannehill the title to the twelve sections "of land in Yoakum County, Texas, by parol agreement. There can be no-question that 'she would have had the right to accomplish these ends by appropriate written instruments. She -could' have conveyed the Texas lands by a formal deed. The legal or record title to the land, was already vested in Tannehill, however, having theretofore been conveyed to him by the Texas administrator. The only interest, which she could have conveyed.to him in settlement of the indebtedness of. the estate was the equitable title which she retained under •her parol agreement with Tannehill before the administration proceedings in Texas were instituted. If she had executed a deed of conveyance and delivered it to Tanne-hill, it would have conveyed only such interests as .she and the estate held.under the parol trust. In this case plaintiffs in error relied upon parol evidence to establish the alleged trust and that was the only title or interest which they could have had in the land. This being true it necessarily follows-that the trust could be relinquished and cancelled by the same process, that, is, by parol. A deed from Mrs. Knight, insofar as Tannehill’s record title was concerned,, .was wholly unnecessary and if Mrs. Knight .had’ attempted to repudiate the agreement , and recover the title, she would have been denied such right because, under the same agreement, she had received the title to five 'sections of land in New Mexico and the . estate had been relieved of an indebtedness in excess, of $50,000. In the case of Archenhold v. B. C. Evans Co., 11 Tex.Civ.App. 138, 32 S.W. 795, 796, it is said: “Ap-pellee itself relies upon parol evidence to-establish the alleged trust, and it -seems to us to follow as a corollary that appellants, should be allowed tó show its cancellation, in the same way.”

In the case of Rebold Lbr. Co., v. Scripture, Tex.Civ.App., 279 S.W. 586, the suit was instituted to recover a town lot which had been conveyed to thé defendant in trust for the plaintiff corporation. The corporation furnished the purchase money and a resulting trust was established, although not shown by the record. The stockholders of the corporation made an oral agreement with the defendant that the lot should belong to him in fee simple. The court held that the agreement as to -.the equitable interest of the corporation, although in parol, did not violate the provisions of the statute of frauds and approved a counter-proposition appearing in the brief to the effect that “where the'equitable title of a cestui que trust in land, the legal title to which is in a trustee, is provable only by parol evidence, in such case parol evidence is admissible to show a relinquishment or cancellation of the trust, so that the trustee shall thereafter have entire title and beneficial ownership of the land.” A large number of authorities are cited in support of the holding and a writ of error was refused by the Supreme Court. In our opinion, the law is well established that, Tannehill holding the legal title to the property here involved, and the community estate, of which Mrs. Knight was the survivor, holding an equitable title established in parol, Mrs. Knight had the right, power and authority to relinquish the trust by parol agreement. The jury found in answer to special issue No. 3 that Mrs. Knight and Tannehill entered into a settlement agreement by which the twelve sections of land in Yoakum County, Texas, and one section in New Mexico were surrendered to Tannehill and the latter can-celled the balance of his debt against the Knight estate and surrendered all the lands in New Mexico except the one section. The finding is amply supported by the testimony and, in our opinion, the adjustment and settlement of the matters between the Knight estate and Tannehill, although in parol, were legally settled and finally adjusted. Defendants in error thereby became vested with the fee simple title to the lands sued for by plaintiffs in error in this case and the judgment of the trial court in which it so decreed was the correct and proper one.

Other assignments and propositions are presented in the brief, but, as we have already stated, those we have discussed control the disposition of the case. We have, nevertheless, examined all of the assignments of error presented by plaintiffs in error and find no reversible error in any of them. The judgment of the court below will, therefore, be affirmed.