author: McCLENDON, Chief Justice.

text:
    SHELL PETROLEUM CORPORATION v. RAILROAD COMMISSION OF TEXAS et al.
    No. 8935.
    Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1940.
    Rebearing Denied Feb. 21, 1940.
    A. E. Groff and R. H. Whilden, both of Houston, and Greenwood, Moody & Robertson, of Austin, for appellant.
    ' Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen;, for appellee Railroad Commission.

      Lee & Porter, of Longview, for appellee Marine Production Co.
   McCLENDON, Chief Justice.

This is 'a rule 37 case. The appeal is from a final judgment refusing to set aside permits to drill two additional wells (Nos. 6 and 7 — there were already; S producing wells) upon a tract of 9.305 acres known as the Marine lease in the East Texas oil field, granted to appellee, Marine Production Company, as exceptions to rule 37 in order “to prevent confiscation'of property.”

The Marine tract (except that its west line followed the meanders of a creek) was in form a trapezoid; its three straight line lengths being; North, 1,210 ft., east, 345 ft., and south, 1,105 ft. Immediately to the south was the Iron Rock lease, triangular in form (about 1,100 ft. long, about 125 ft. wide at its west end, and terminating in a point at the Marine southeast corner) containing 2.014 acres, and having two producing wells. The position of the Marine and Iron Rock leases with relation to surrounding leases is shown on map accompanying Richey v. Shell Petroleum Corp., Tex.Civ.App., 128 S.W.2d 898, at page 900, error dismissed. Wells 6 and 7 were located in the extreme northwestern portion of the Marine'; and the record shows that No. 7 was granted as an equidistant offset to the Ida Richey well oñ the .67-acre tract to the west (permit for which was set aside in the Richey case above) ; and No. 6 as an equidistant offset to a Carr well to the north. The record conclusively shows that the Iron Rock lease was a voluntary subdivision of the Marine, and therefore, for the purposes of rule 37, the two leases covered but a single tract. There was also some question raised as to the exact location of the north line of the Marine. The greatest area of the combined Marine and Iron Rock leases under any theory presented is approximately 12 acres; the strip in .question to the north of the Marine being .81 acres. For our present purposes it is not material whether the Marine be treated as a separate tract or in conjunction with the Iron Rock; nor whether we take the greatest area permissible under any presented theory. The evidence conclusively shows that without wells 6 and 7 there was some excess drainage iron, the west and north of the extreme northwestern portion of the Marine; but that this was more than compensated by excess drainage to the Marine from other directions; the net result being that the Marine was already getting more oil from surrounding leases than that drained from its lease. The record also conclusively shows that taking the eight times surrounding area in the form either of a circle or trapezoid, the Marine had a greater density of drilling than that of the surrounding leases. As above stated, these conclusive factual showings apply to the Marine whether considered alone or in conjunction with the Iron Rock, and considering its area as that of any presented theory. The record conclusively shows that neither well 6 nor 7 was necessary to enable the Marine to recover its fair share of the recoverable oil and therefore was not necessary to prevent confiscation of property.

There was a great deal of testimony upon the subject of waste, consideration of which we pretermit under the holding in the Atlantic case. Gulf Oil Co. v. Atlantic Refining Co., Tex.Sup., 131 S.W.2d 73. See also Ward Oil Corp. v. Overton Refining Co., Tex.Civ.App., 131 S.W.2d 700, rehearing opinion; Shell Petroleum Corp. v. Railroad Comm., Tex.Civ.App., 133 S.W.2d 194, error refused.

Appellee, Marine, cross-assigns error upon the overruling of its plea in abatement, predicated upon the failure to make the royalty owners parties defendant to the appeal from the Commission orders. Our examination of the many rule 37 opinions delivered by this and other courts fails to disclose that it has ever been suggested that royalty owners are necessary or even proper parties to an appeal from a Commission order granting or refusing a drilling permit. The only interest of the royalty owners is to receive when produced their share of the oil or its proceeds. The lessee is invested with the exclusive right of possession and development. In the drilling and spacing of wells the lessee" represents the royalty owners in so far as they may have any interest, therein. They were so represented in the making of the applications for the permits and in all proceedings thereunder before the Commission; to which proceedings they were not made parties and in which they did not participate other than by such representation. We hold that the trial court properly overruled the plea in abatement. A closely analogous situation was presented in Railroad Comm. v. Humble, Tex.Civ.App., 101 S.W.2d 614, reversed on another ground, Tex.Sup., 128 S.W.2d 9.

Appellee, Marine, presents a number of other points which have been frequently decided adversely to its contentions. All these have been given our careful consideration; but in view of their obvious want of merit in the light of adjudicated cases, we do not deem it necessary to discuss them. To do so would be but to reiterate previous holdings, thereby adding to the volume of reported cases to no useful purpose.

The trial court’s judgment is reversed, the orders granting the permits in issue are set aside, and production under such permits is perpetually enjoined.

Reversed and rendered.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    FLORES v. SULLIVAN.
    No. 10115.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied March 6, 1940.
    R. H. Mercer, of San Antonio, for appellant.
    Kazen & Kazen, Hicks, Dickson & Lange, and James M. Williamson, all of Laredo, for appellee.
   SMITH, Chief Justice.

This action was brought by John L. Sullivan, individually and as next friend of his minor son, Francis Sullivan, against Martin Flores, owner of a taxicab, for personal injuries alleged to have been sustained by the minor when struck by the' spare wheel of Flores’ taxicab, which was released from its mooring as a result of a collision between the taxicab and an automobile operated by a third party, in the City of Corpus Christi. A jury trial resulted in a judgment for damages as prayed for by Sullivan. Flores appealed to this court, which ordered the judgment reversed, and rendered judgment that appellee take nothing, upon the sole ground that the record showed that appellant’s negligence was not the proximate cause of the injuries to the minor. 112 S.W.2d 321. The Supreme Court granted writ of error, reversed the judgment, and remanded the cause to this court, with directions to pass upon the remaining' questions raised in the appeal. Sullivan v. Flores, Tex.Com.App., 132 S.W.2d 110.

The facts in the case are fully stated in the reported opinions of this and the Supreme Court and need not be restated here. In reversing the judgment of this court our Supreme Court upheld the finding of the jury that the negligen.ce of appellant was the proximate cause of the accident, thereby overruling appellant’s first proposition of law, which need not be further discussed here.

The trial judge submitted the issue of unavoidable accident in this language:

“Special Issue No. 25. ‘Do you find, from a preponderance of the evidence, that the occurrence in question was not an unavoidable accident?

“You are instructed that an ‘unavoidable accident’ is an event happening suddenly ánd unexpectedly without the foresight or knowledge of a person and without fault or negligence on the part of anyone, which caused the resulting injuries or damages.”

In his second proposition appellant complains of this submission upon the ground that in the definition therein of unavoidable accident the “element of proximate Cause” was omitted, when it should have been included therein. We conclude that, considering the question and definition together, the definition was substantially correct; that the issue was fairly submitted; and that no injury could have resulted to appellant by the submission. Speer’s Special Issues, § 77; Wichita Valley Ry. Co. v. Minor, Tex.Civ.App., 100 S.W.2d 1071, and authorities there cited. We overrule appellant’s second proposition, and, for like reasons, his third proposition. We also overrule appellant’s ' fourth proposition as heing without merit. Appellant has voluntarily waived his fifth proposition, which will be disregarded accordingly.

In his brief appellant complains of' the amount of damages awarded appellee. We conclude that the evidence was sufficient to sustain the verdict, which, being approved by the trial judge, is binding upon this court.

In his seventh, eighth, ninth, tenth and eleventh propositions appellant complains that the trial court submitted the issue of Whether the acts of Joseph K. Marshall, a third party, were the sole proximate cause of the accident, conditioned upon the negligence of the third party. We overrule those propositions upon the ground that specific objection was not made at or before the submission of that issue to the jury, and hence are not available on this appeal. The objection made below was that “The defendant objects and excepts to the charge of the Court as a whole, because it fails to submit the defendant’s defenses as plead by him, and as requested in the form and manner heretofore requested in his Special Requested Issues Nos. 1 to 9, inclusive, and the subdivisions thereunder, and the defendant here and now requests the court to give all of said Issues in the manner and form as heretofore requested.” It is obvious that such objection was too general to apprise the trial judge that appellant’s true and specific objection was that the charge given required the jury to base any finding of sole proximate cause upon the negligent acts of a third party. No doubt the trial judge would have harkened to the specific objection, if timely and properly made; whereas, on the other hand, he was not required to surmise its presence in the hidden recesses of the general objection.

The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    STATE et al. v. HOUSER.
    No. 5756.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1940.
    Rehearing Denied Feb. 22, 1940.

      E. L. Myers, H. C. Ellis, and Ben F. Mooring, all of Paris, for appellants.
    R. E. Eubank, of Paris, for appellee.
   WILLIAMS, Justice.

In this suit to recover judgment for taxes and foreclosure of tax lien on a certain •building and lot in Paris owned by appellee, Houser, the State of Texas, suing for itself and in behalf of Lamar County, and the impleaded defendants, City of Paris and the Paris Independent School District, on their cross-action were denied a recovery. These taxing units will be referred to as plaintiffs.

The assessment and collection of the school district taxes were handled by the assessor-collector for Lamar County. The delinquent tax records for the county and school district carried an assessed value on the property at $4,500 for 1935, and 1936, and $4,000 for 1937. Similar rolls for the city show an assessment of $4,000 for 1937 and 1938. The taxes involved in suit are based upon these respective assessments. With the exception of one year’s rendition by defendant to the city, neither the pleading nor evidence discloses at what figures defendant rendered this property for taxes for the years involved. However, defendant pleaded and offered evidence in supporj: of his claim that this property had been excessively and arbitrarily overvalued. He introduced evidence as to construction of the building, it's condition of repair; the location, its cost, the rentals received, and its value did not exceed $3,000. He testified that he appeared before the respective equalization boards in protest to the assessments and to offer evidence as to the value of the property, but that these boards refused to hear proof and made no effort to ascertain the fair market value of the property. The taxing units offered no testimony as to value or under what method or scheme, if any, the values so placed on the property had been reached. The city offered defendant’s rendition for one of the years involved. The court found that “from the undisputed evidence” the value of the property did not exceed $3,000 in any of the years involved;” that no testimony was offered by the taxing units in explanation of their values placed upon the property; and.that the valuation placed thereon by the taxing units was of such an excessive amount over and beyond the market value or its intrinsic value as to constitute an arbitrary and unreasonable value and to show an arbitrary fixing of value. The respective assessments were declared null and void without prejudice to rights of plaintiffs to reassess the property for taxes for the years involved.

“It is well established that the term ‘value,’ as used in [Article 8, Section 1, of] our [State] constitution [Vernon’s Ann. St.], means the reasonable cash market value.” Rowland v. City of Tyler, Tex. Com.App., 5 S.W.2d 756, 760, and authorities there cited. If the reasonable cash market value is the true criterion, then, it follows that a valuation placed' upon this property by an equalization board from 33⅛% to 50% in excess of its reasonable cash market value as found by the court from undisputed evidence, and the ascertainment of such assessment in no wise explained, would be violative of the provisions of Article 8, Section 1, supra. Rowland v. City of Tyler, supra; Johnson v. Holland, 17 Tex.Civ.App. 210, 43 S.W. 71; French Ind. School Dist. v. Howth, 134 S.W.2d 1036, by the Commission of Appeals, not yet reported [in State reports],

Because of Sec. 2, S, 8, 9 and 10 of Art. 7345b, Vernon’s Ann.Civ.St. enacted by the 45th Legislature, c. 506, the judgment of the trial court is affirmed as to all taxing units named.


author: GRAVES, Justice.

text:
    SIGN HANGERS, ERECTORS AND BUILDERS LOCAL NO. 1060, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, v. LOCAL UNION NO. 716, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS.
    No. 11002.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1939.
    Rehearing Denied Feb. 29, 1940.
    Second Rehearing Denied March 21, 1940.
    Russel A. Bonham, Mary Nan Bonham, and W. M. Latham, all of Houston, for appellant.
    Sewall Myer, of Houston, for appellee.
   GRAVES, Justice.

This general statement is taken from the appellant’s brief:

“This is an appeal from an order sustaining a general demurrer to the petition of appellant, wherein the appellant sought a temporary injunction to enjoin the appellee from interfering with contracts in existence between appellant and employing-units and from demanding of such employing-units the hanging and erecting of signs in the City of Houston and vicinity, until final hearing of the cause-of-action; the main cause-of-action being for damages and for a permanent injunction, and to judicially determine a claimed trespass upon appellant-union’s jurisdiction by the appellee-union, both unions being affiliated with the American Federation of Labor.
“The temporary restraining order sought by appellant was not entered and the cause was set for trial or hearing upon the petition for temporary injunction, at which time, without hearing any evidence, the trial court entered its order sustaining the general demurrer of appellee.
“The general demurrer urged by appel-lee admitted all allegations contained in the petition, so that the only question before this court on appeal is whether or not a cause-of-action is stated.
“The trial court sustained appellee’s general demurrer to the petition upon the theory that it is necessary to exhaust internal remedies within the union’s parent-body. Appellee’s attorney contended upon the argument that the allegations of appellant as to there being no internal remedies within the parent-organizations, or the American Federation of Labor, were not correct, in that there was a provision for determination of a jurisdictional controversy through the Building and Trades Construction Department of the American Federation of Labor, and the trial court, under the general demurrer. and without hearing evidence, so ruled.”

The gravamen of appellant’s complaints' against the appellee are thus declared in its bill for the coveted writ:

“* * * that for a period of some months past the defendant union has trespassed upon the jurisdiction of the plaintiff union, and is now trespassing thereon; that defendant union has claimed the right to build, erect and hang all signs having any character of electrical work in connection therewith, and are now claiming such right, including especially ‘Neon’ signs and those signs having electrical lights of any character reflecting upon them; that plaintiff’s members have at all times recognized the right of the defendant union members to do all electrical wiring, installation of electrical equipment and all items concerning electrical work in connection with such signs as built, installed or hung by plaintiff union, and plaintiff" union members have claimed, and now claim the right and jurisdiction to build, erect and hang the signs, standards and all work pertaining only to their classification; that defendant union has heretofore notified all employers and contractors that defendant’s members will not wire any signs having any type of electrical equipment therein or thereon unless the said signs are installed, erected, and h.ung by defendant union members; that plaintiff union members have lost their jobs, contracts and work because the respective employers have been compelled to leave their signs without electric lights thereon, or permit the defendant union to rebuild, rehand, and re-erect such signs by defendant members, in addition to defendant members doing the electrical wiring and installation therein and thereon; that by such action the defendant union has trespassed upon the jurisdiction of plaintiff union, and defendant’s members have engaged and are now engaging in the trade of sign hanging, building, and erecting, without first- becoming members of plaintiff union as provided in Sec. 11, Article IX, of the -Constitution of their parent organization, the American Federation of Labor, as hereinbefore set forth in full.
“That the building, hanging and erecting of signs having some character of electrical lighting upon them make up approximately eighty-five per cent of the work of the members of plaintiff union, in that practically all signs displayed by any firm, business, or or7 ganization, or any person displaying any type of sign or advertising, at the present time are either of a ‘Neon’ character, or have a ‘Neon’ border thereon, or have a ‘Reflector’ light attached by means of a ‘gooseneck’ projection; that only about fifteen per cent of the work of the members of plaintiff union has to do with signs without any type of electrical wiring or'lighting therein or thereon. ,
“That plaintiff union has at all times insisted that all signs, built, hung, erected, or in any manner handled, by its members be wired and completed as to electrical work by union-electricians, to-wit; the members of defendant union, and plaintiff’s members have at all times refused to build, hang, or erect, or work, upon any signs upon which all work concerning the same is not done by the respective unions entitled to the work, particularly the electrical work to be done by members of defendant union; that the final work on all such signs having electrical equipment, wiring, or lighting, must necessarily be done by electricians, it being customary, necessary and proper to complete the final wiring thereof after installation; that thus, by the refusal of the defendant union to permit its members to do such final wiring thereon, such signs have been left incompleted, and the employers and contractors have thus been compelled to permit the defendant union to do the work ordinarily and customarily theretofore done by plaintiff union members, as well as permit defendant union to do the wiring-; that thus the plaintiff union’s members have lost numerous contracts in the City of Houston and vicinity, and the action of defendant union has caused the employers and contractors to breach their contracts to and with plaintiff union; that the type of contract required of employers and contractors by plaintiff union is in accord with Exhibit ‘A’ hereto attached and made a part hereof, and is the type of contract the said defendant union has caused a breach by such employer or contractor or employing-unit; that plaintiff union is unable to call a strike to protect such breaking of contracts of such employing units, in that under the rules and regulations of the American Federation of Labor, and the plaintiff union strikes may be called only where the fault lies with the employing unit, or ¡where other unions are not employed on their particular trade, and other such instances, and a strike may not be called where the fault in breaking such contracts lies outside the control of the employing unit, as in, this case, in that the controversy between plaintiff and defendant is known as a ‘jurisdictional’ dispute, and is not such as the employing unit might control.
“That such jurisdictional dispute between plaintiff and defendant unions is such that plaintiff has lost contracts for the employment o'f members of their union in their particular trade, and the members have lost work in the building, hanging and/or erecting of signs in the City of Houston and vicinity, to which work and contracts plaintiff union is entitled, and which previously have been in force, and which contracts would now be in force or would have been extended, had it not been for the interference therewith by said defendant union.” This pleading lacks the- indispensable requisites of an acceptable bill for injunction, as thus laid down by our Supreme Court in Gillis v. Ro'senheimer, 64 Tex. 243 : “* * * The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-inforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable' inference arising upon the facts so stated, from which it might be deduced that he might not, under other 'supposable facts connected with the subject, thus be entitled to relief;” ■

There has followed that cardinal declaration a train of amplifying holdings from our Courts, to the effect that the aver-ments of fact must be affirmatively direct, certain, and particular, unmixed with any conclusions of the pleader of either fact or law, some of them being these: Hood v. Scott, Tex.Civ.App., 67 S.W.2d 909; Houghton v. Brungardt, Tex.Civ.App., 89 S.W.2d 440; City of Paris v. Sturgeon, 50 Tex.Civ.App. 519, 110 S.W. 459; Pearson v. Black, Tex.Civ.App., 106 S.W.2d 787; Plough v. Moore, Tex.Civ.App., 56 S.W.2d 681; Town of Refugio v. Strauch, Tex.Com.App., 29 S.W.2d 1041; Royal Fraternal Union v. Lundy, 51 Tex.Civ.App. 637, 113 S.W. 185; Smith et al. v. Texas Farm, etc., Tex.Civ.App., 86 S.W.2d 52, affirmed, 128 Tex. 171, 96 S W.2d 290; Sneed v. Ellison, Tex.Civ.App. 116 S.W.2d 864; and Wood v. Farm & Home, etc., Tex.Civ.App., 86 S.W.2d 871.

A comparison of the allegations here with those in Hood v. Scott, supra, show well-nigh a legal equivalent in the absence of the required particularity and direct statement of fact that could properly give a court of equity a hand-hold; for instance, there is (1) no naming, describing, nor identification otherwise, of the employers and contractors the appellee is alleged to have notified that it would not thereafter wire any signs having electrical equipment therein unless the same had also been erected and hung by itself; (2) there is no naming of the appellant’s members who are alleged to have lost their jobs, contracts, and work, because the respective employers have been coerced into permitting the appellee to re-erect their signs, nor are such “respective employers either named or described”; (3) as part and parcel of the general averment, in purport, that the appellee has trespassed upon the sign-hanging jurisdiction of the appellant to the extent of depriving it of about eighty-five per cent of all the business otherwise open to it, there is no specification whatever of any particular contract, piece of business, or sign-hanging of any sort, that has been so taken away from appellant by the appellee; (4) there- is no naming, identifying, nor otherwise classifying, of the “employers and contractors” who are alleged to have been compelled to permit the appellee to do the work ordinarily and customarily theretofore done by the appellant’s members; (5) there is neither a naming nor other designation of the particular members of appellant’s union who are alleged to have lost numerous contracts in Houston because of any act of the appel-lee, nor is there any pointing’ out whatever of the “employers and contractors” alleged to have been caused to breach their contracts with the appellant, nor are any such contracts in anyway identified.

Without further analysis, it seems plain to this Court that, under its established principles and practice, equity will not undertake the exercise of such a disembodied jurisdiction as is thus invited; on the contrary ; it must always have something concrete, tangible, and specific, to which it may apply its power; that has not been afforded in this instance, and as the Waco court remarked in the cited Hood case, supra, if an injunction-writ had been issued on this pleading, any officer who in good faith desired to obey it would have had great difficulty in recognizing either the persons or the things against which it was directed.

Indeed, when reduced to its ultimate purport and effect, this petition amounted in finality to little if any more than a seeking of restraint against alleged declarations of the appellee, to the effect.that it would not in the future apply its electrical wiring and other services to any signs that it did not itself erect and hang; as was held by the Court of Appeals of New York in Nann v. Raimist, 255 N.Y. 307, 174 N.E. 690, 691, 73 A.L.R. 669, through the lamented Chief Judge Cardozo, who subsequently became an Associate Justice of the Supreme Court of the United States, the “remedy by injunction against words is exceptional one, and is to be reserved for those cases where exigency is clear.”

These conclusions require an affirmance of the appealed-from judgment; it will be so ordered.

Affirmed.

On Motion for Rehearing.

In their motion for rehearing appellants earnestly challenge No. (1) of this Court’s five specifications, in which their pleading was held to lack the required particularity and direct statement of fact that could properly give a court of equity a hand-hold, by citing Paragraph XIX of their petition as specifically naming the Galveston-Houston Breweries as one of such employers, who was so named; adding, “that such allegation as to a definite and particular contract with such employing-unit, Galveston-Houston Breweries, which concern is a legal entity and is one of the contracting employers referred to by appellants, is sufficient upon which to base a cause-of-action for injunction”.

The vice in this contention is that, while such concern was named in that paragraph, it was only incidentally mentioned as matter of inducement in alleging the appellant’s damages as a result of such acts, and was stated to have already occurred' — that is, “that it has caused the cancellation of a working-agreement between plaintiff union- and the Galveston-Houston Breweries,” no injunctive-relief whatever being predicated upon such then-past act; indeed, the prayer" for the temporary injunctive-relief sought was specifically limited to “restraining the defendant from interfering with contracts of plaintiff-union now in existence”. Obviously this specification adds nothing of substance whatever to the otherwise defective averments, so originally pointed out by this 'Court; nor, in the circumstances and setting in which it so appeared, did it in anywise strengthen the declaration for in-junctive-relief, since “the purpose of such a writ is to prevent wrongful acts threatened, or in the course of accomplishment, and not to grant relief against past actionable wrongs, or future ones that are not imminent”. 24 Tex.Jur., par. 4, page 12; Wright v. Wright, Tex.Civ.App., 278 S.W. 925; also 24 Tex.Jur., par. 106, page 147, and authorities cited under foot-notes 5 and 6.

The motion has been carefully considered, but under the conclusion that the cause was properly decided on former hearing, it will be overruled.

Motion refused.

On Appellant’s Motion for Leave to File Second Motion for Rehearing.

This court’s Rule No. VI is as follows: “Rule VI — Second Motions for Rehearing: The filing of second motions for rehearing in causes will not be permitted, except in instances of emergency, the emergency to be stated under oath in the application.”

Appellant has in no manner met that requirement in this its third successive application to this court for a hearing of its appeal in this cause; it was accorded two painstaking reviews of the trial court’s action in refusing it' a temporary-injunction, with written opinions delivered upon each, the first one upon original hearing on November 9, 1939, the second on February 29, 1940. In addition, its appeal herein wus only from the order of the trial court denying its interlocutory application for a temporary-in junction, in a suit for damages that had never been tried on its merits below, and which, presumably, is still pending there; in so appealing from that order, it invoked the acceleration-privileges available to it under R.S. Art. 4662, both in getting into this Court within 20 days after the entry of such order below, and in securing its advancement here over all other causes for an immediate consideration, which was, as recited, accorded it under full hearings both on oral argument and on briefs; thereafter, in similar manner, and in compliance with prescribed procedure, its first motion for rehearing was also considered and determined.

It therefore has more than had its day in court upon the appeal it so took; further-morej it now mistakes the reaches of the jurisdiction and procedure it so invoked, in that, contrary to the assertions of its present motion, there was nothing before considered or determined by this court, except the appeal from the refusal of the temporary-injunction, which in no manner had to do with any other feature of the cause below out of which that order proceeded.

Motion to file second motion for rehearing will, therefore, be refused.

Motion refused.


author: DUNKLIN, Chief Justice.

text:
    COHEN v. TEXAS LAND & MORTGAGE CO., LIMITED, et al.
    No. 14011.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 26, 1940.
    Rehearing Denied March 8, 1940.

      Fred Arnold, of Graham, and Kear.by Peery and T. R. Boone, both of Wichita Falls, for plaintiff in error.
    E. G. Thornton, of Olney, and E. L. Klett, of Lubbock, for defendant in error.
   DUNKLIN, Chief Justice.

This suit was instituted by Aaron Cohen against the Texas Land & Mortgage Company, a corporation, and E. W. Hunt, in the nature of trespass to try title to one-half of all the oil, gas and other minerals in 3068.16 acres of land, situated in Archer County. He filed certain special pleadings challenging the sufficiency of certain muniments of title relied on by defendants to defeat a recovery by plaintiff, which will be hereinafter shown.

Both defendants filed answers which included a general demurrer, general denial, plea of not guilty. And defendant, E. W. Hunt, also pleaded the three year statute of limitation to plaintiff’s suit, with a further prayer for removal of plaintiff’s claim of title as a cloud upon his title, and for judgment decreeing title in him.

Plaintiff filed a supplemental petition, in reply to the answer of defendant, Hunt, presenting a general demurrer, general denial and plea of not guilty. And further, that there had been a severance of plaintiff’s title from that claimed by defendant before the' latter acquired title and that defendants had never been in adverse possession of plaintiff’s mineral rights for which he sued; in the absence of which there was no sufficient basis for the plea of limitation.

Upon trial without a jury, judgment was rendered denying plaintiff a recovery as against either of the defendants, and vesting in defendant Hunt title to the land sued for by plaintiff. Plaintiff has appealed.

Following is the documentary evidence upon, which the rights of the parties are based:

J. M. Senter and wife are the common source of title claimed hy the parties.

On February 29, 1920, J. M. Senter and wife executed a deed of trust on the property in controversy, together with all royalties accruing from any leases on the land, to secure the payment of their two promissory notes payable to the defendant, the Texas Land & Mortgage Company, the first for the principal sum of $5,-000, and the second for the principal sum of' $17,500, payable February 1, 1930, with interest thereon payable annually at the rate of 7 per cent per annum, with option in the holder to mature the principal for default in payment of any interest in-stalment. That note was introduced in evidence and endorsed thereon are credits for all interest instalments paid at their respective due dates up to February 1, 1930. A. G. Wood was named as trustee in the deed of trust, with power to sell the property at public sale to satisfy the debt in the event of default in payment of the note after maturity, upon request of the holder and convey the property to the buyer by a proper deed of conveyance. With a further provision that should A. G. Wood, the named trustee, fail or refuse or be disqualified to act, then the holder of the note or general manager of said mortgage company shall have power to appoint a substitute' trustee, without notice to the makers, vested with the same powers as given to said Wood; also power in the original or substitute trustee to execute to the purchaser at such sale a deed of conveyance to the property sold, which shall be prima facie evidence that all prerequisites to the validity of the sale, under the terms of the deed of trust, were had and done. That instrument was duly acknowledged by the grantors as . required by Statute, and was duly recorded in the mortgage records of Archer County, on March 4, 1920.

On February 1, 1923, J. M. Senter and wife, for a consideration of $8,000 paid and secured to be paid by Aaron Cohen, executed and delivered to Aaron Cohen,' plaintiff, a deed of conveyance, with general warranty of title, to an equal undivided one-half of all the natural gas, petroleum, coal and all other minerals and mineral substances whatsoever in, on and under the land in controversy, with these further stipulations : “It is agreed and understood that all future oil, gas and mineral leases affecting the hereinafter described lands, are to be made and executed by J. M. Senter, and it shall not be necessary for the said Aaron Cohen to join therein or assent thereto, but the said J. M. Senter agrees to pay to said Aaron Cohen one-half of all bonus of lease money, and one-half of all rentals hereafter received, after the payment of all necessary expenses connected therewith. It is understood that all of said lands are now under lease, and the foregoing clause as to bonus and lease money shall not apply unless and until said lands are again leased.”

Plaintiff’s suit was predicated upon that deed, which was duly acknowledged at the time of delivery, and filed and recorded in the deed records of Archer County, on February 5, 1923; and it established prima facie his right of recovery, unless defeated . by facts, subsequently occurring and hereinafter noted.

On July 24, 1923, J. M. Senter and wife executed to S. G. Helm a deed to the land in controversy (which included both the surface right and the one-half mineral rights then in the grantors), with warranty of title. The consideration recited in that deed was “the sum of Nine Thousand ($9,000-00) Dollars cash to us in hand paid by S. G. Helm, the receipt of which is hereby acknowledged, and the further consideration that the grantee herein takes the property hereinafter described, subject to the payment of twenty two thousand five hundred ($22,500.00) Dollars, and all accrued interest thereon, owing to The Texas Land & Mortgage Company, Ltd., as shown by a deed of trust recorded in Volume 10, page 263, Deed of Trust Records of Archer County, Texas, and further subject to the payment of Five Thousand One Hundred Sixty and No/100 ($5,160.00) Dollars and all accrued interest thereon owing to H. C. Curtis, as shown by a deed recorded in Book 53, page 462, of the Deed Records of Archer County, Texas.” That deed was duly acknowledged by the grantors and filed for record on July 29, 1923.

On February 19, 1930, S. G. Helm and wife, Evelyn Helm, executed a deed of trust, reciting the execution by J. M. Senter and wife to A. G. Wood, trustee, of date February 27, 1920, to secure payment of their two notes in favor of the Texas Land & Mortgage Company, one for $5,000, maturing February 1, 1925, and one for $17,-500, maturing February 1, 1930, with these further stipulations:

“Said two notes above described, having been assumed by S. G. Helm, in deed from J. M. Senter and wife, Laura Senter, dated July 24th, 1923, and recorded in Vol. 73, page 640, Deed Records of Archer County, Texas.
“And, Whereas, interest has been paid on said notes to February 1st, 1930, and the following payment on the principal $5,000.-00, on Feb. 13th, 1925, leaving the last note of $17,500.00 still remaining due and unpaid. It is expressly agreed and understood that we, said S. G. Helm and wife, Evelyn Helm, in order to further secure the last note above described, do hereby convey, in trust, to James C. Macdonald, Trustee, all rights that we, or either of us have in any and all royalties arising or accruing out of, or under, any lease, or leases now existing on the land above referred to, or any part thereof, and of record in the .-■County where said land is situated; and said S. G. Helm and wife, Evelyn Helm, have requested that the date of maturity of aforesaid note be extended. - ■
“Now, Therefore, in consideration of the premises, it is hereby agreed between th,e company and said S. G. Helm, and wife, Evelyn Helm, as follows:
“That the date of the maturity of the aforesaid last note is hereby extended so that it shall become due and payable'as follows, to-wit:
“$17,500.00 on February 1st, 1935, with the privilege of paying one-fifth of same on February 1st,' of each or any year; and shall from Feb. 1/30 draw interest as follows, to-wit: at the rate of 7½% per an-num, payable annually on February 1st.
“That said last note and the aforesaid Deed of Trust securing same shall from this date have the same force and effect they would have had if said notes had been originally payable at the date to which it is hereby extended, with interest as above specified, and had been so describéd in said Deed of Trust.
“By the acceptance hereof said Mortgage Company agrees to the foregoing, and the said S. G. Helm and wife, Evelyn Helm, hereby promise and agree to' pay the said last note, and all interest according to the terms thereof as hereby modified.”

That instrument was duly acknowledged and was filed for record February 28, 1930.

On January 11, 1935, the Texas Land & Mortgage Company executed an instrument in writing reciting the execution of the deed of trust by J. M. Senter and wife, on February 29, 1920, to secure payment of the indebtedness therein shown; default in payment thereof; that the Texas Land & Mortgage Company had declared the same due; that A. G. Wood, named as trustee in said deed of trust, had since died; appointment by said company of A. A. Cooper as substitute, trustee, with power to sell the property covered by said deed of trust, in- accordance with powers therein specified. That instrument was duly acknowledged and was filed for record February 12, 1935.

On February 5, 1935, A. A. Cooper, acting as such substitute trustee, under the' appointment so made, executed to the Texas Land & Mortgage Company a' deed to the land in controversy, and binding J. M. Senter-and wife by a general warranty of title, for a recited consideration of $10,000 cash paid; reciting- that the sale was made under the power given to A. G. Wood, trustee, and his duly appointed substitute trustee, by the deed of trust executed by J. M. Senter and wife, of date February 27, 1920, and that all the prerequisites required for making the sale had been complied with by him as substitute trustee. That deed was duly acknowledged and duly filed for record February 12, 1935.

On January 8, 1938, the Texas Land & Mortgage Company, purchaser at that sale, executed a deed of conveyance of the land, with general warranty of title, to E. W. Hunt, for the sum of $27,500 cash paid, reciting that the title conveyed was acquired by the grantor from the sale made by A. A. Cooper, substitute trustee. That deed was duly acknowledged and duly recorded February 19, 1938.

Prior to execution of the extension agreement by S. G. Helm, and prior to the execution of any of the other' instruments subsequent thereto, shown above, said Helm and plaintiff, Aaron Cohen, executed oil leases jointly on certain portions of the tract in controversy, as follows :

To J. S. Culver, for a cash consideration paid qf $2,320, dated August 5, 1925; and on July 25, 1928, that lease was surrendered to those lessors by the Empire Gas & Fuel Company, to whom it had been assigned.

Two to Harry Hines, one of date October 12, 1928, and one of date August 15, 1928. All of which were duly acknowledged and recorded.

Later, and on June 29, 1934, more than four years after the due date of the $17,-500 note of J. M. Senter and wife, above shown, of date February 27, 1920,. S. G. Helm and Aaron Cohen jointly executed another oil and gas lease .to Huylar W. Lee, on a portion of the land in controversy, for a cash consideration of $10 and royalties on all oil and other minerals produced therefrom, and same was likewise duly acknowledged and recorded.

Each of those leases to Harry Hines and Huylar W. Lee, respectively, was for a nominal cash consideration and stated royalties accruing from oil and gas thereafter produced by the lessees from the land covered by the lease.

On May 25, 1937, some nine, months prior to its conveyance to E. W. Hunt, above shown, the Texas Land & Mortgage Company executed an oil and gas lease to the Texas Company, on 80 acres of the land in controversy, for a consideration of $400 cash and stated royalties of oil and gas thereafter produced by the lessee from development of the lease. That instrument was duly recorded July 10, 1937.

On April 1, 1938, some two months after his purchase . from the Texas Land & Mortgage Company, E. W. Hunt executed seven oil and gas leases on different portions of the land in controversy to L. T. Burns, for which he had received $16,-575.30.

On November 17, 1938, E. W. Hunt executed another lease of all oil, gas, sulphur and other minerals, to the Shell Petroleum Company, on 286.33 acres of the land in controversy, for a cash consideration paid of $2,063.30, and stated royalties from the oil produced from the land leased. The lease was to run for a period of five years and as long thereafter as oil should be produced from the premises. That lease was duly acknowledged and placed of record on December 13, 1938.

In his amended petition, on which he went to trial, plaintiff alleged the deed executed to him by J. M. Senter and wife, under which he claimed title. He also alleged the execution of the other instruments set out 'above, under which defendants claimed title, and against which he pleaded the four year period of limitation, fixed by Arts. 5520 and 5522, Revised Civil Statutes, Vernon’s Ann.Civ.St. Arts. 5520, 5522, as against each and all the instruments shown above, under which defendants based their claims of title. Also that since the sale to the company was made after the right thereto as against Senter, under his deed of trust of date February 27, 1920, was barred, it was likewise barred in this suit, in the absence of a valid extention of that mortgage lien.

And in answer to defendant’s plea of the three year statute of limitation to plaintiff’s suit, he alleged that there was no showing of adverse possession of plaintiff’s undivided half interest in the minerals under the land. With further allegations to the effect that since, in the deed to plaintiff/his grantor, J. M. Senter, ' reserved the right to lease any of the land conveyed for oil, gas and other minerals; without consent of him, the grantee, but with Senter’s agreement to account to plaintiff for one-half of the proceeds, the defendants, as claimants of title through Senter and wife, had the same right to lease the property, but were charged with the same ■ obligation to account to plaintiff for one-half of the proceeds. That plaintiff has elected to ratify and treat as valid the aforesaid oil leases executed by defendants and claim one-half the proceeds realized therefrom and to recover personal judgment against defendants therefor under his prayer for an accounting. And he prayed for such recovery upon the theory that the extension agreement and all said transactions that followed thereafter were inoperative against plaintiff’s half interest in the minerals he acquired' from J. M. Senter and wife, shown above, because of limitation pleaded.

He further pleaded the Statute of Frauds, Art. 3995, as against the extension agreement executed by Helm and wife to the Texas Land & Mortgage Company, because same expressly recited that it was to become effective when accepted by the company, and no acceptance in writing was shown.

By Art. 5520, Rev. Civ. Statutes, Vernon’s Ann.Civ.St. Art. 5520, it is provided that actions to recover real estate or for foreclosure of vendor’s liens or deeds of trust or mortgage liens on real estate shall be commenced within four years after the cause of action thereon has accrued, and not thereafter; and that no power of sale conferred by any deed of trust or other mortgage on real' estate shall be executed after the expiration of four years from the maturity of the indebtedness secured thereby, and all sales thereafter made thereunder shall be void, unless such indebtedness is extended by agreement in writing by the party or parties primarily liable therefor, and acknowledged and filed and recorded in the records of conveyance of real estate, as provided by law.

Art. 5521, which was effective when Helm . executed the extension agreement, but was repealed by Acts of 42nd Legislature in 1931, c. 136, effective August 23, 1931, before the extension agreement was executed, reads: “Purchase money or mortgage lien "notes relating to real estate shall conclusively be presumed to have been paid after four years from the date of maturity of such notes unless extended as provided by law.”

Art. 5522, Rev.St., reads: “When the date of maturity of either debt referred to in either of the foregoing articles is extended,' if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record 'in the county clerk’s office in the county in which the land.is situated, the lien shall continue and be in force until four years after maturity of the notes as provided in such extension, the same as in the original contract and the lien shall so continue for any succeeding or additional extension so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage, or the recorded renewal and extension of the same, shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. Provided.the owner of the land and the holder of the note, or notes may at any time .enter into a valid agreement renewing and extending the debt and lien, so long as it does not prejudice the rights of lien holders or purchasers subsequent to the date such liens became barred of record under laws existing prior to the taking effect of, or under this Act; as to all such lien holders or purchasers any renewal or extension executed or filed for, record after the note or notes and lien or liens were, or are, barred of record and before the filing for record of such renewal or extension, such renewal or extension shall be void.”

As announced .by the Supreme Court, in Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1085, 115 A.L.R. 329: “While these articles are in a sense registration statutes, they are in general sense and purpose statutes of limitation.”

The proviso in Art. 5522, that “the o.wner of the land [italics ours] and the holder of the note or notes may at any time enter into a valid agreement renewing and extending the debt and lien, so long as it does not prejudice the rights of lien holders or purchasers subsequent to’the date such liens became barred of record”, etc., clearly indicates that the extension' shall operate only on the land owned by the one 'who executes the agreement, and not on the interest of. others in the land not parties to the. agreement, and who have not, assented thereto. Such was the interpretation, adopted, in effect, by our Supreme Court, in Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; also in Home Owners’ Loan Corporation v. Cilley, Tex.Civ.App., 125 S.W.2d 313, writ of error refused. Indeed, it cannot be presumed that in enacting' those statutes the Legislature intended' to vest in the one primarily liable on the note- extended, authority to impair vested rights of another in the same property without his consent and who is in no sense a party to the agreement.

For that reason we conclude that while the extension agreement of Helm, appointment of the substitute trustee, the sale and deed made by him under terms of the deed ».f trust to defendant, the Texas Land & Mortgage Company, and the deed by that company to defendant, E. W. Hunt, of the property in controversy were valid and binding on his- interest and the interest of defendants claiming under him, they were all void as against the title of plaintiff Cohen to the one-half interest in the minerals in the land in controversy, theretofore acquired by him from J. M. Senter and wife, his deéd to which was duly filed for record at the time of the extension. And under terms of the agreement of Senter and wife in their deed to Cohen, to account to him for one-half of the proceeds realized from any mineral leases thereafter made by them on the property, defendants, who deraigned title through Senter apd wife subsequent to the record of plaintiff’s deed, are under the same obligation to plaintiff.' And this is true notwithstanding the fact that under those proceedings defendants acquired good title, through Senter and wife, to an undivided one-half of the minerals and full title to the surface rights in the land, in-which plaintiff claims no interest. Nor did defendant make J. M. Senter and wife, if living, or their heirs, if deceased, parties defendants to their cross-action for title and seek a recovery against them as well as against plaintiff Cohen. '

We conclude further, that there was merit in plaintiffs plea that the extension agreement of Helm, on which defendants’ claims of title are primarily predicated, was void as against plaintiff’s suit, because that agreement was not accepted in writing by defendant, Texas Loan & Mortgage Company, within the provisions of the Statute of Frauds, Art. 3995, especially so in view of this concluding provision of the instrument : “By the acceptance hereof said Mortgage Company agrees to the foregoing, and the said S. G. Helm and wife, Evelyn Helm, hereby promise and agree to pay the said. last note, and all interest according to the terms thereof as hereby modified.”

If the extension agreement was subject to that attack, then all the proceedings thereunder, including the deeds under which defendants claim title, would be likewise void as against plaintiff’s suit, independently of merits of our foregoing conclusion that it was void for the other reasons stated, and which we believe all sufficient of itself. 20 Tex.Jur., pages 316 to 319, in-1 elusive, and decisions there cited, including Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076. More nearly in point and we believe of controlling effect here is the later decision of our Supreme Court in opinion of Justice Sharp, in American Nat’l. Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164, in which this was said: “To form a binding contract, it must appear that the party to whom the offer is made a.c-J cepts such offer and communicates such acceptance to the person making the offer; and, in the case of an offer to buy or sell land, the acceptance must be in writing. The facts of this case do not furnish the essential requisites to make a binding contract. This court, in Patton v. Rucker, 29 Tex. 402, said: ‘In order to their enforcement by the courts, contracts for the sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by his acceptance of it in writing.’ See, also, Foster v. New York & T. Land Co., 2 Tex.Civ.App. 505, 22 S.W. 260; Waples-Platter Co. v. Montgomery, Tex.Civ.App., 65 S.W.2d 391; Browning-Ferris Machine Co. v. Thomson, Tex.Civ. App., 58 S.W.2d 183.”

See, also, Imholz v. Southern Oil Corporation of America, Tex.Civ.App., 134 S.W.2d 301.

The extension agreement, the appointment of substitute trustee and his deed under which defendants claimed title, were of record and were insufficient on their face to show that they had acquired title to plaintiff’s undivided half interest in the property in controversy, and therefore there was no merit in defendants’ plea of limitation of three years, based on Arts. 5.507 and 5508, Rev.Civ.St., even if it be said that defendants were in adverse possession of plaintiff’s' mineral interest in the land. Savage v. Rhea, Tex.Com.App., 33 S.W.2d 429; Baldwin v. Root, 90 Tex. 546, 40 S.W. 3; Green v. Hugo, 81 Tex. 452, 17 S.W. 79, 26 Am.St.Rep. 824; Wall v. Lubbock, 52 Tex.Civ.App. 405, 118 S.W. 886; Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139; Southwestern Settlement & Development Co. v. Village Mills Co., Tex. Civ. App., 230 S.W. 869.

Nor do we find any evidence in the record of adverse possession of the land in controversy by Helm or defendants. Indeed, the evidence shows that Helm recognized plaintiff’s interest by joining with him in several leases, the last of which was executed in 1934, four years after the due date of the Senter note, secured by the original deed of trust. And there was no evidence that either he or either of the defendants ever took adverse possession of plaintiff’s mineral interests by drilling wells; and the leases executed by them were made in the years 1937 and 1938, which was less than three years prior to the institution of this suit on February 7, 1939; and that, too, for minor portions of the land in controversy.

We further conclude that the contention advanced by defendants in their briefs, that since Helm was a cotenant with plaintiff, he had authority, as such, under the common law, to bind plaintiff’s interest in the minerals by the extension •agreement, is without merit, because, first, the provisions of Arts. 5520 and 5522 are controlling and exclude the right of the defendants to invoke the common law applicable to cotenants to sustain their title; second, this is said in 11 Tex.Jur., para. 41, page 466: “Each cotenant can sell or encumber his undivided share of the common property, and the others cannot prevent him, for he thus interferes with no right of theirs. The form of the conveyance is of no importance; it can be as varied as individual transactions are varied, —indeed this is an individual transaction. It may be by deed, assignment, will, mortgage, lease, option, partition or any other instrument or transaction affecting the title. One may not, however, convey or otherwise encumber the share of his cotenant. He is not a partner, with the general power to represent the firm, nor is he an agent merely because of the cotenancy. From this it follows one of the cotenants cannot convey or encumber the whole estate.” A multitude of Texas decisions are cited in support of that text, including Heller v. Heller, 114 Tex. 401, 269 S.W. 771; Thomas v. Morse, 80 Tex. 289, 16 S.W. 48. Also, Stephen v. Beall, 22 Wall. 329, 22 L.Ed. 786.

We quote the- following from opinion in W. C. Belcher Land Mortgage Co. v. Taylor, Tex.Com.App., 212 S.W. 647, 649, “At the date of the execution of the note and deed in trust, the property in its entirety was subject to the vendor’s1 lien. Mrs. Taylor, as tenant in common with her children, in order to protect her interest, as well as that of her children, and save the property from threatened foreclosure, had the right to extend the time of payment of the debt, and to this end was authorized to execute a deed in trust binding her interest, though homestead, and also the interest of her children.”

And this is from syllabus to Hall v. Looney, Tex.Civ.App., 106 S.W.2d 820: “Where tenants in common executed a vendor’s lien note and a renewal thereof, and, on the death of one, his interest was devised to the surviving cotenant and the latter’s family, which included plaintiffs, • the surviving cotenant, who was also executor, was the ‘party obligated to pay such indebtedness’ within the statute and was authorized, independently of the will, to extend the note and lien, so as to affect plaintiffs’ interest.”

In Law v. Lubbock Nat. Bank, Tex.Civ. App., 21 S.W.2d 92, 95, the court said: “A-joint tenant or a tenant in common, in order to protect his interest and the interest of the other joint tenants in the property, has the right .to extend the time of payment of a- debt for purchase money, and is authorized to execute..a lien therefor binding his interest and .also the interest of the other joint tenants.” W. C. Belcher Land Mortgage Co. v. Taylor et al., supra.

In Citizens Savings Bank & Trust Co. v. W Spencer, Tex.Civ.App., 105 S.W.2d 671, 677, the foregoing excerpt from Law' v. Lubbock Nat. Bank, supra, was quoted, following which this was said:

“Whether J. H. Pettit acted under his authority'as survivor of the community or as tenant in common with his children, he was, in our opinion, authorized to renew and extend for himself and the other tenants in common the unpaid purchase-money notes on section 7.
“In the payment and satisfaction of this unpaid balance of the purchase money at the request of J. H. Pettit, extending the date of the payment thereof, and to secure the payment of which the deed of trust was given, the Temple Trust Company was subrogated to the rights of Mrs. L. M. Davidson, the original owner of the purchase-money debt.”

But in neither of those cases was the statute of limitation under Arts. 5520 and 5522, Rev. St., pleaded, and in each case! the notes extended were for purchase money of the property; and it was noted in those cases that the holders of the notes were at all events subrogated in equity to the vendor’s liens that were taken up with the proceeds of the notes in question; which evidently was by reason of former decisions noted in Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329, to the effect that even though the debt be barred and a foreclosure of the mortgage lien given as security thérefor be void as against one who owned an interest in the property, but not made a party to the suit, yet such person cannot recover title against the purchaser or his vendee without payment of his pro rata part of the purchase money note that was discharged by the purchaser at foreclosure sale, if the purchaser seeks such- equitable relief by proper pleadings.

As pointed out by appellant, defendants, neither by pleading or testimony, made any attempt to show that the extension agreement, and that, too, with an increase in the rate, of interest, was made to avoid a threatened foreclosure of the original deed of trust,' and therefore necessary to protect-plaintiff’s interest, as well as that of Helm,' as was true in-the-cases cited.- Apparently, on the trial of the case defendants re-lied solely on the provisions of Arts. -5520 and .5522, to support the right- of Helm to-extend the -lien 'as to the entire' mineral interest in the land, with no pleading invoking .equitable relief growing out of payment of the mortgage lien on the entire property.--

Whether or not the stipulation in the deed to Helm that he took the conveyance subject to the prior deed of trust executed'by J; M. Senter and wife, amounted to an-agreement to assume that indebtedness, a-point briefed by both parties here, is unimportant and not necessary to be deter-; mined, becáuse in-Helm’s extension agreement, he specifically agreed . to. pay . that. note, as modified in the particulars noted, and defendant Mortgage. Company then accepted Helm as the principal obligor. And even though it be said that such acceptance, with its change in the obligation of the original note, operated to release J. M. Senter and wife from payment of the note as changed, yet plaintiff, Cohen, is in no position to complain of it since it could not affect his half interest in the minerals, even if not binding on the original makers.

As between the parties thereto,' the extension agreement was supported by a sufficient consideration. Novosad v. Svrcek, 129 Tex. 34, 102 S.W.2d 393, and authorities there cited. But since, as- we have heretofore concluded, Helm was without authority to bind plaintiff’s title by such extension, it was inoperative as against plaintiff’s onedialf interest in the minerals in the land in controversy; his deed to-which was of record prior to such extension.

For the reasons noted, plaintiff was entitled to a judgment against both defendants for his undivided one-half interest in all the oil, gas and other minerals in the land in controversy, including the same interest in all the royalties, bonuses and rents heretofore or hereafter accruing from the oil, gas and other mineral leases heretofore executed by the defendants, shown above; and a right to a personal judgment against the defendants respectively, for one-half of all sums realized by them from those-leases as rents, royalties or bonuses, up to date of trial of the case; with the further' right to a judgment decreeing that defendants take nothing against .plaintiff on thein plea over against him for title to the one-half. interest claimed by him, but with the right in the defendants to a decree of title-to all interests in the land other' than those-to which plaintiff is entitled, as above stated.

For failure of the court, to render judgment in accord' with the rights of the parties above indicated, the judgment rendered is reversed in its entirety. But the case will be remanded for further proceedings, as hereinafter shown.

Although the rights of defendants' to hold title to plaintiff’s half of the minerals in the-land under the foreclosure sale by the substitute trustee were barred by the period of limitation fixed by Arts. 5520' and 5522, and therefore■ was no obstacle to-plaintiff’s right of recovery of title to one-half of the minerals in the land, nevertheless, as held by our Supreme Court in Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329, plaintiff’s title was subject to a claim of defendants in equity, if they had pleaded such for its proportionate part of the consideration paid by the Texas Land & Mortgage Company for its deed from the substitute trustee^ in extinguishment of the entire prior lien given by J. M. Senter and wife, on February 27, 1920. In this case, as in the case' just cited, defendants filed no plea on the trial of the case seeking such equitable relief ; notwithstanding which, in keeping with that decision, the judgment will be reversed and the cause remanded, to afford defendants opportunity, if they desire, to file pleadings seeking equitable relief, arising from payment by the Mortgage Company of $10,000, in full of the balance then due on the original mortgage indebtedness; subject to the corresponding right of plaintiff to charge defendants with one-half of the proceeds realized by them heretofore and up to the time of trial, from the leases made by them to which plaintiff is entitled, as noted in foregoing portions of this opinion. If upon adjustment of those equities between the parties, a balance be -shown in favor of either plaintiff or defendants, then a personal judgment will be rendered for that amount, with establishment and foreclosure of an equitable lien therefor ■on the interest of the party liable therefor.

If defendants shall upon remand of the case fail to file pleadings seeking an. adjustment of the equities of the parties growing ■out of their dealings with the property, as above indicated, then plaintiff will be entitled to a judgment for title to the property sued for and one-half interest of the lessors in all leases made thereon, and one-half of all proceeds therefrom, free of any claim ■of defendants for an accounting and adjustment of their equities arising from the facts above indicated.

Evidence relevant to a proper adjudication of the equities above noted is the only ■evidence to be admitted on another trial; .and on such trial the trial court, in addition to a determination of those equities, will render judgment in favor of the respective parties for the relief to which they were •éntitled, as held by' us in the foregoing portions of this opinion.

Reversed and rendered in part, and remanded with instructions in part..


author: MONTEITH, Chief Justice.

text:
    MOSSLER ACCEPTANCE CO. v. ALEXANDER.
    No. 10917.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 1, 1940.
    Rehearing Denied March 14, 1940.
    Herbert G. Tigner, of Houston, for appellant.
    Morris Pepper, of Houston, for.appel-lee.
   MONTEITH, Chief Justice.

This is an appeal in a usury case brought by appellee, William Alexander, against appellant, Mossier Acceptance Company, for the cancellation of the balance due on á note secured by á chattel mortgage, and for the recovery of twice the amount of usurious .interest alleged to have been paid.

Appellee alleged that he purchased a Plymouth automobile from Avenue Motors, Inc., of Houston, Texas, for the sum of $954.60; that after making a cash payment and receiving a credit for an automobile which he traded in, there remained a balance of $704.60.due the Avenue Motors, Inc., on the purchase price of said automobile ; that appellant, Mossier Acceptance Company, agreed to and did lend ■him the sum of $704.60 to pay the balance of said purchase price, but that to evidence said loan and to secure the payment thereof, he executed a note in favor of Avenue Motors, Inc., for the sum of $999.-88, payable in 28 monthly installments' of $35.71 each; that the balance of said loan over' and above the surtí of $704.60, with the exception of a payment of an insurance' premiúm ■ on said automobile, was charged by appellant '■ as interest on said loan of $704.60;: that; although said loan was made by appellant, in order to conceal th’e 'usurious nature of said transaction and 'in- order that it might claim to be a bona ■'fide purchaser thereof, appellant had made ■said .'note ■andi'-said chattel mortgage to Avenue Motors, Inc.; that appellant had collected from him in 22 months the sum of $790, which constituted payment of the 'entire'principal: on--said loan and said in-'suraric’e expenditure,' and in addition thereto the sum of $55:17, and that said sum of $55.17 and the balance of said note constituted interest on said loan of $704.60, and that said contract was therefore usurious. .

In the alternative appellee alleged that, if. appellant should be. held to be the as-signee of said note, it had knowledge and notice of the usurious nature of the contract .and was estopped to assert that it was a bona fide purchaser of said; note and mortgage. . , ■

Appellee prayed for the cancellation of the balance of $209.28 due on' said note and. said chattel mortgage' and for judgment for $110.34 alleged to be twice the amount of usuriousr interest collected from appellee. : ■ * • '..■■■'■■•

Appellant answered by general demurs her and general denial.

The jury, in answer to special issues submitted, found : (1) That when appellee purchased said Plymouth automobile from Avenue Motors, Inc., it was agreed that the selling price thereof was $954.60; (2) that after paying the sum of $110 in cash and receiving a credit of $140 for an automobile traded in, there then remained a balance of $704.60 owing by appellee to «Avenue Motors, Inc., on the price of said automobile; .(3) that on or about July 21, 1936, appellant, Mossier Acceptance Company, loaned appellee said balance of $704.-60 to pay Avenue Motors, Inc., for said automobile; and (4) that appellee by signing the note ■ in question did not agree to pay appellant more than 10% interest per annum on the loan of such money after deducting the sum of $46.33 for insurance. (5) On instruction from the court special issue No. 5 was not answered. (6) The jury found further that appellant, at the time of the execution of said note and chattel mortgage, had notice that the selling price of said automobile to appellee by Avenue Motors, Inc., was $954.60; (7) that when appellee purchased said automobile, it was agreed between him and Avenue Motors, Inc., that the selling price of said automobile to him was the sum of $110 in cash, $140 trade in, and the note for $999.88; and (8) that appellee by signing the note in question agreed to pay the difference between the $704.60, together with insurance of $46.33, and the amount of the note, $999.88, as interest on the balance of $704.60^

Based on the answers of the jury to said issues, the trial court entered judgment in favor of the appellee, cancelling said note and chattel mortgage and awarding judgment in favor of appellee in the sum of $69.88, which was found to be double the amount of usurious interest paid.

Appellant contends that the court committed reversible error in submitting to the jury the issue as to whether appellant loaned appellee said balance of $704.60- to pay Avenue Motors, Inc., for said automobile and in rendering judgment on the answer made thereto.

We do not, concur in this view. Appellee pled, and ,the jury found on evidence deemed to be sufficient, that appellee ■contracted to 'purchase said Plymouth automobile from Avenue Motors, Inc., for the sum .of $954.60 and that, after he had paid the sum of $110 in cash and had received a credit of $140 for an automobile traded in, there remained a balance due Avenue Motors, Inc., of $704.60, which amount appellant loaned to appellee to pay Avenue Motors, Inc., for said automobile. The jury further found that, at the time of the execution of said note and chattel mortgage, appellant had notice that the selling price of said automobile was $954.-60, and that appellee, by signing said note, agreed to pay the difference between $704.-60, with an insurance premium of $46.33, and the amount of said note, as interest.

The record shows that appellee negotiated directly with a representative of appellant for said loan and that he after-wards executed said note for the sum of $999.88 to procure funds with which to pay Avenue Motors, Inc. The terms of said loan, including the amount of cash payment made by appellee, were dictated by a representative , of appellant and said note and chattel mortgage were prepared by appellant and were signed by appellee at its place of business. Said note was made payable to Avenue Motors Inc., and was indorsed by it and assigned, without recourse, to appellant.

The Commission of Appeals in the recent case of Temple Trust Company et al. v. Haney, 126 S.W.2d 950, under a similar state- of facts, has passed on almost an identical question to that presented on this appeal'. In the Haney case a bor- ' rower negotiated directly for a loan of $2,230 with the local representative of a loan company which prepared all papers. Borrower, was required to execute a mechanic’s lien note for $2,500 payable to one who immediately assigned it to the loan company. Judgment was rendered by the trial court holding said contract to be usurious. The Commission of Appeals in sustaining this judgment held that, while practically the only evidence indicating that Manning, the party to whom said note was made .payable, had anything to do with .the matter was the form of the instruments that this evidence was ample to support a finding that the form which the loan took was. purely simulated and that the finding of the trial court in this regard was - conclusive. ' .

This rule is followed in the very recent case of Keltner et ux. v. Glenn, 130 S.W.2d 452, by' the Austin Court of Appeals, under a state of facts almost identical to the facts in the instant case.

Appellant further contends that the trial court committed reversible error in refusing to submit to the jury special issues Nos. 5 and 6 requested by appellant, which were designed to elicit findings from the jury as to whether appellant had bought said note from Avenue Motors, Inc., for the sum of $999.88.

We think that the submission of said issues to the jury would have served no useful purpose in this suit. While the jury found, in answer to special issue No. 3, that appellant loaned appellee, said balance of $704.60 to pay Avenue Motors, Inc., the balance due on said automobile, it also found, in answer to special issue No. 6, that at the time of the execution of said note appellant had notice of the fact that the selling price of said automobile to ap-pellee was $954.60, and in answer to special issue No. 8, that appellee had agreed to pay the difference between the balance due and the amount of said note as interest.

Further, an affirmative finding by the jury that appellant had purchased said' note would have been of no benefit to appellant, since it is the established rule im this state that where a note is usurious, it is void as to all interest even in the hands, of a bona fide purchaser before maturity. Volunteer State Life Ins. Co. v. Sumner, Tex.Civ.App., 74 S.W.2d 319; Trinity Universal Ins. Co. v. Kerrville Hotel Co., 129 Tex. 310, 103 S.W.2d 121, 110 A.L.R. 442.

We conclude from the above facts that the transaction in question constituted a. loan to appellee of $704.60; that the difference between said $704.60 and said insurance expenditure of $46.33 and the sum-, of $999.88, the amount of said note, must be treated as interest and that, so treated,, both said note and said chattel mortgage were tainted with usury. It- follows that the said sum of $34.69 constituted usurious, interest paid and that appellee was entitled, to recover double that amount from appellant.

We have considered each of the other propositions presented in appellant’s brief.. None of them, in our opinion, show any error in the record which requires a reversal of the judgment. -The judgment of the trial court will, therefore, be in all things affirmed.

, Affirmed.


text:
    MONTGOMERY et al. v. CUNNINGHAM et al.
    No. 10942.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Rehearing Denied March 14, 1940.
    Henry W. Flagg, of Galveston, for appellants.
    Lockhart, Hughes & Lockhart, of Galveston, for appellees.
   GRAVES, Justice.

This statement, acquiesced in by the ap-pellee as being substantially correct, after interlineation of the clause “without any objection as to either form or substance from either party”, is taken from appellants’ brief:

“This suit was filed by appellee in the form of an application to probate a writing purported to be the last will of Laura Adams, deceased, in the County Court of Galveston County on June 8, 1938, and which application was duly contested by appellants and others not parties to this appeal. The Probate Court denied the contest on August 2, 1938, and contestants gave notice of appeal to the District Court of Galveston County, after duly excepting to such Judgment and order. The cause was tried de novo in the Honorable 56th District Court of Galveston County on February 20, 1939, by Jury, and Judgment rendered on verdict of Jury in their affirmative answer to the one and only special issue submitted (without any objection as to either form or substance- from either party), reading:
“Special Issue No. 1: ‘Do you find from a" preponderance of the evidence that, at the time Laura Adams’ executed the purported will which has been offered for probate on this trial as her last will and testament, she possessed testamentary capacity, as that term is défined to you below?’, by which judgment aforesaid the contest was overruled and such writing ordered probated. Appellants, contestants below, in due order and time filed motion for Judgment non obstante veredicto, which was overruled, and appellants’ 1st amended motion for new trial, duly filed on March 3, 1939, was overruled on March 22, 1939, to which contestants in,open court excepted and gave notice of appeal.”

In this court appellants’ sole' contention is that the judgment so rendered is fundamentally erroneous and not supported by either the pleadings or the evidence, in that there is no finding by either court or jury (nor was there any such issue submitted) “that such purported will was signed and executed by Laura Adams, and such fact not appearing from the evidence as a matter of law, but the same being a contested and disputed fact, constituted a primary and independent ground of recovery indispensable to the appellees’ cause of action”, without which no recovery could be had.

Many authorities are cited in support of this presentment, including such , cases as Mills v. Mills, Tex.Com.App., 228 S.W. 919; Citizens’ National Bank v. Texas Compress Co., Tex.Civ.App., 294 S.W. 331, writ of error refused; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084; Moore v. Pierson, 100 Tex. 113, 94 S.W. 1132; Wichita Falls & O. R. Co. v. Pepper, Tex. Sup., 135 S.W.2d 79; R.S. Art. 2185 and art. 2190, as amended by Acts 1931, c. 78, § 1, Vernon’s Ann.Civ.St. art. 2190.

But upon consideration of the appeal, aided by able briefs and oral arguments from both sides, this court is of opinion that the construction appellants invoke from the cited statutes and decisions does not rule or apply to this cause, for these among other reasons:.

(1) In the first place, the very wording of the quoted special issue, as submitted, presupposes that the will had been already “executed” — and presumptively properly so — by its predication of the question thereby propounded upon the' recitation “that, at the time Laura Adams executed the purported will which has been offered for probate”, etc.; especially so, in the absence of any objection of any sort to such a submission by the appellants; in other words, the trial court thereby assumed that, the will having already been properly executed, there remained but the sole inquiry as to whether the testatrix had possessed testamentary capacity in doing, so; wherefore, presumptively at least, the parties tried the cause and both sides took their chance on a verdict before the jury, upon the theory that the will had been properly executed, but that there remained an issue of fact only on whether or not the testatrix had the required capacity in doing so. In that situation, under R.S. Art. 2185,- supra, and this court’s recent holding through Chief Justice Monteith in Galveston Theatres v. Larsen, Tex.Civ.App., 124 S.W.2d 936, 937, the objection that appellants belatedly made after the verdict was returned was waived.

’ (2) In the second place, it is not thought appellants properly construe either R.S. Art. 2190, or the cited Pepper case, supra, as applicable here, because in this instance there was on the facts no controversy over whether or not the statutory requirements with reference to the execution of this will by Laura Adams had been carried out; on the contrary, one witness— without controversion — testified to the proper execution of the will in the presence of the two witnesses thereto by the testatrix, and that they signed it as such witnesses at her request and In the presence of each other, all formalities required by law having been complied with; in other words, it affirmatively appears that there was no issue raised over this feature by the evidence, it being undisputed that the will was so properly executed and witnessed; wherefore, this was in no sense such "a disputed issue of fact as the authorities invoked by appellant have to do with, it being well settled that the courts under R.S. Art. 2190 are not required to submit matters of fact about which there is no dispute in the testimony; 41 Tex.Jur., par. 222, page 1027, and foot-note cited authorities,- including Speer’s Special Issues, paragraph 163, page 211.

Under these conclusions, the judgment should be affirmed; it will be so ordered.

Affirmed.


author: LESLIE, Chief Justice.

text:
    LAKEY v. McCARROLL.
    No. 1891.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 2, 1940.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellant.
    Smith & Smith, of Anson, for appellee.
   LESLIE, Chief Justice.

On April 14, 1939, this court handed down an opinion in the above-styled and numbered cause. The same is to be found in Tex. Civ.App., 131 S.W.2d 181. A motion for rehearing was filed therein, and the same has not been acted upon by this court. In the consideration of that motion this court concluded to certify certain questions to the Supreme Court of Texas. Also, there was a dissenting opinion in said cause by Associate Justice Funderburk. 131 S.W.2d 185. The questions certified are to he found in the opinion of the Supreme Court answering said questions. Lakey v. McCarroll, Tex.Sup., 134 S.W.2d 1016 (not yet published [in State Reports]).

According to the opinion of the Supreme Court there was error in this court’s disposition of said case. In the light of the answers to the questions certified, the judgment of the trial court should have been affirmed. Accordingly, the motion for rehearing is granted, and pursuant to the opinion of the Supreme Court the judgment of the trial court is in all things affirmed.


author: BROWN, Justice.

text:
    HUGHES v. RHODES et al.
    No. 14028.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1940.
    Rehearing Denied March 15, 1940.
    W. E. Fitzgerald, of Wichita Falls, for appellant.
    John D. McComb and J. P. Simpson, both of Jacksboro, Levy & Evans, of Fort Worth, and Harris & Martin, of Wichita Falls, for appellees.
   BROWN, Justice.

Appellant, Everett Hughes, believing that there exists between the north boundary line of S. P. R. R. Company Survey No. 7, and the south boundary line of the R. N. Erwin Survey, in Jack County, Texas, what is commonly known as a “vacancy”; that is to say, a strip of unsurveyed and unsold public lands, had a survey made and filed his application for a mineral permit to issue to him on the tract, which is supposed to be about 15 acres. The Commissioner of the General Land Office of the State of Texas refused to issue such permit, and Hughes filed this suit in the district court of Jack County and made F. H. Rhodes, who claims to own the tract of land, W. H. Hammon, Herbert Oil Company, a corporation, and J. E. Kadane, defendants.

Hughes alleges that he is entitled to a mineral lease (on the lands in question) from the Commissioner of the General Land Office of the State of Texas, conferring upon him the exclusive right to prospect for and develop petroleum, natural gas and oil on the premises; that he has taken all of the steps required to secure such permit; that the tract involved constitutes a part of the unsurveyed land of the State of Texas, and is known as vacant land and subject to being leased.

He alleged that the defendants have gone upon the land and premises without legal authority and ' have taken possession of same .without warrant of law, and are using and appropriating the land to their own use and benefit; that they have leased and drilled for oil, gas and other minerals on the land, and are appropriating the rents, royalties, bonuses and oil and gas, produced from the land, to their own use and benefit, etc., and are therefore trespassing and will continue to trespass upon the land, ánd are excluding the plaintiff therefrom, to his damage and to the State of Texas and the Public Free School Fund, in the sum of $40,000; that the possession and appropriation of the land constitutes a cloud upon plaintiff’s vested right in and to the oil, gas and a lease from the State, and militates against the plaintiff’s right to have issued to him a mineral lease, “for the reason that said defendants by their operation, possession and use as aforesaid of said premises, have induced the Land Commissioner to refuse to issue to this plaintiff a mineral lease upon the land aforesaid and has resulted in a denial of said application.”

Hughes prays: “That upon a hearing of this cause he be adjudged and decreed to have the right and title to a mineral lease from the State of Texas to prospect for and develop oil and natural gas on said land, as is provided under the statutes of the State of Texas, with reference to such mineral leases, and to have a decree by this court to the effect that said land is subject to the application of this plaintiff for a mineral lease under and by virtue of the Act aforesaid, and that said land be decreed to be vacant public school land of the State of Texas, and that this plaintiff be quieted in his right, title or interest vested in him by virtue of the matters and things herein pleaded, and for such other and further relief, general and special, in law or in equity, that he may show himself entitled to recover.”

The defendant Rhodes filed a plea in abatement, the last paragraph of which asserts that the field notes of the alleged vacancy have not been approved and said permit has not been granted, and the plaintiff has not purchased a mineral lease upon the alleged vacancy and no lease has ever been issued to him, and that the facts, as shown in the plaintiff’s petition, disclose that plaintiff has no cause of action against the defendant Rhodes, and if the plaintiff has any cause of actiop. it is against the Land Commissioner, who is not made a party to the suit. This plea is followed in due order of pleading by' the urging of a general demurrer.

The defendants Hammon and Herbert Oil Company likewise filed a plea in abatement, which elaborates upon the facts and matters mentioned in Rhodes’ plea, and which plea is essentially the same as that of Rhodes. In due order of pleading these defendants urged a general demurrer to plaintiff’s pleading.

The trial court overruled the pleas in abatement and the general demurrer, and due exceptions were taken to such ruling. The cause was tried to a jury, and, on the answers found, judgment was rendered for the defendants.

The defendant Kadane had filed a disclaimer.

The plaintiff has appealed from the judgment.

If the trial court should have sustained the pleas in abatement and the general demurrers urged, then such acts constitute fundamental error apparent on the face of the record.

It will be seen that appellant, as plaintiff, has not made the Land Commissioner of the State of Texas a party to this suit. He seeks no relief as against the State of Texas, or against the Land Commissioner of such State, whose duty it is to issue mineral leases on public lands, if, as and when an application for such lease is properly made and presented to him.

In fact, the plaintiff here alleges that the defendants, who are claiming title to the land and rights, as lessees of such claimant, have persuaded the State Land Commissioner to refuse him a lease on the lands, and that the Commissioner has refused to execute such lease.

With this situation staring us in the face, we do not believe that appellant’s petition states a cause of action against the named defendants.

It appears to us that appellant is asking the trial court to determine for him an abstract question.

Appellant has no interest in the lands involved. He sought to acquire an interest by applying to the Land Commissioner of the State of Texas for a lease- on the lands, on the theory that it is a part of the unsold, public domain. His application was denied and he now sues the person who claims to own the lands, and his lessees and those holding under them.

What character of judgment could he obtain, in this suit, against such 'persons ?

Not having any vested interest superior to that of the persons whom he has sued, what character of decree could a court render in his favor? As we view the situation, none.

It is not contemplated that a litigant, before he obtains the relief he seeks, either should, or may, resort to more than one trial to settle the issues upon which he relies for recovery.

If appellant should obtain, in the trial court, some character of decree as against the defendants whom he has sued, what would he have? Obviously nothing.

After obtaining such a decree, if the Land Commissioner, who is not a party to the ’suit, again refuses to give appellant a lease on the lands, appellant could not take possession of the premises. He would have no vested right to do so, but would be compelled to resort to a mandamus proceeding to require the Land Commissioner to execute to him a mineral lease.

A litigant may not try his case— establish his rights — by piecemeal. Birdville Ind. School Dist. et al. v. Deen, Tex.Civ.App., 114 S.W.2d 628.

A decree to the effect that the trial court has found that the lands in question constitute a part of the unsold, public domain would not have the dignity of a judgment in favor of the State and against the defendants. The State is not a party to the suit and no judgment could be thus, rendered, either for or against the State. Neither would such a decree have the dignity of a judgment for or against the Commissioner of the Land Office. The Commissioner is not a party to the suit, and no judgment could be thus rendered either for or against him.

We have diligently sought light on this new and interesting question, and we find only one case reported that even tends to shed any light on the matter.

We refer to the case of Hughes v. McDonald, Land Com’r, Tex.Civ.App., 122 S.W.2d 366.

■ In that case Hughes brought suit against the Land Commissioner of Texas, those who claimed to own the lands involved, and their lessees and the parties holding under them. The suit was instituted under circumstances similar to those in the instant case. Hughes sought to prove that the lands involved were a part of the unsold, public domain and he alleged that he had complied with the law requisite to his right to a lease from the Commissioner and he prayed for a writ of mandamus to issue requiring the Commissioner to issue to him the lease for which he had made application, and necessarily for judgment against the other parties defendant establishing his rights as against their respective claims.

In that suit the Commissioner urged a plea to the jurisdiction of the court, relying upon the provisions of Art. 1735, R.C.S. Some of the other defendants filed pleas to the jurisdiction, and some filed pleas of privilege seeking to change the venue to Cass County, in which county the land lies.

Hughes dismissed as to the Land Commissioner, and ¿he trial court dismissed such defendant.

The trial court then found that some of the pleas to the jurisdiction and of personal privilege were well taken, but instead of ordering the cause transferred to Cass County, the trial court dismissed the suit.

The case was appealed to the Court of Civil Appeals for the Austin District (it was tried in a Travis County district court), and the Court of Civil Appeals reversed the judgment and remanded the cause with instructions to change the venue to Cass County.

Application for a writ of error was made by the parties appellee, who were the defendants below, after plaintiff dismissed as to the Land Commissioner, and the Supreme Court granted a writ of error, noting that it was granted on the second assignment of error. That assignment of error asserts that the Court of Civil Appeals erred in holding that the factual allegations of Hughes’ petition set forth essential elements of a cause of action against the appellees alone and independently of the rights asserted against the Land Commissioner.

Thus it appears that the Supreme Court, in granting the writ, was then of the opinion that, in such a suit as the one before us, the petition does not state a cause of action. The Supreme Court has not reached the above-styled suit. The writ of error was granted on April. 5th,' 1939.

We hold that the trial court erred in overruling the pleas in abatement.

Believing that the pleas in abatement are well taken, it is not necessary for us to pass upon the ruling of the trial court in overruling the general demurrers. In the absence of a plea in abatement, the demurrers should have been sustained.

For the reasons given, the judgment of the district court is reversed and the cause is remanded, with instructions to that court to sustain the pleas in abatement filed by the several defendants,- and to dismiss the suit.