author: MOORE, Chief Justice.

text:
    ANGLIN et al. v. CISCO MORTG. LOAN CO.
    No. 7472.
    Supreme Court of Texas.
    June 26, 1940.

      Turner, Seaberry & Springer, of East-land, for plaintiffs in error.
    F. D. Wright, of Cisco, for defendant in error.
   MOORE, Chief Justice.

On June 2, 1936, Cisco Mortgage Loan Company, a Texas corporation, filed suit against W. W. Anglin and Phillips Petroleum Company, defendants. The allegations with respect to the Petroleum Company become immaterial, as that company was dismissed from the case on the trial in the district court, and no complaint is here made with respect to that action.

Plaintiff alleged that on October 23, 1931, D. M. Anglin and wife, Mary E. Anglin, conveyed to W. W. Anglin a tract of land in Eastland County, and as part consideration therefor the grantee executed and delivered to D. M. Anglin nine vendor’s lien notes, dated October 23, 1931, for $100 each, providing for interest and attorney’s fees, and due, respectively, on or before November 1 of each year from 1933 to 1941, inclusive, payable to D. M. Anglin or order, and containing a provision for accelerating their maturity at the option of the holder in the event of the maker’s failure to pay the principal and interest when due; and that it had become the owner in due course yf these notes, which defendant had failed to pay, except certain interest and a small amount on the principal, and for which reason plaintiff had elected to mature all of the notes. Plaintiff prayed judgment against defendant, and for foreclosure of the lien against the land described in the petition.

The defendant by his answer alleged that at the time of the execution of these notes D. M. Anglin and his wife, Mary E. Anglin, were his father and mother; that the land in question, which contained less than 200 acres, was their homestead; that at the time of the execution of the notes, D. M. Anglin was indebted to the Cisco Banking Company in a named amount, and that the officials of the bank conceived the idea of securing a lien upon such homestead by having D. M. Anglin and wife execute a pretended conveyance of the same to the defendant, and by having the deed to recite the execution and delivery of notes by defendant, to be secured by a vendor’s lien upon the land, and to be transferred by D. M. Anglin to the bank; that D. M. Anglin and wife never sold said land to the defendant, and that the purported conveyance from them to him evidenced a pretended and simulated sale for the purposes aforesaid; that defendant never received a deed to the land, never paid any consideration therefor, and never went into possession of the same; that D. M. Anglin and wife were at the time of such pretended sale in possession of the land, and continued to use and enjoy the same as their homestead so long as they lived; and that such facts were known to the Cisco Banking Company and the plaintiff and their officers, or that they had notice of such facts as were sufficient to put a reasonably prudent person upon inquiry as to the homestead rights of D. M. Anglin and wife; and further that no consideration was paid to the defendant for the execution of said pretended notes, and having no title to or interest in the land by virtue of' such void and pretended sale, he was not liable on the notes.

It was further alleged by defendant that D. M. Anglin died intestate April 9, 1934, and his wife, Mary E. Anglin, died intestate July 6, 1935; that no administration was had upon the estate of either of them; that they left surviving as their heirs their children, the defendant, W. W.. Anglin, Joe B. Anglin, Nellie Anglin, Bertha Anglin Wilson, and D. M. Anglin, Jr.; that Joe B. Anglin, a minor, and Nellie Anglin, unmarried, both resided with their parents on the land in question, and continued to live thereon after the death of their parents, using and enjoying the same as a homestead until a short time prior to the bringing of this suit, when for causes unnecessary here to state, they were compelled to temporarily, move from said premises. Defendant prayed that plaintiff take nothing by its suit, and that the deed and vendor’s lien notes be cancelled and the title to the premises be quieted in the heirs of D. M. Anglin and wife, Mary E. Anglin.

Joe B. Anglin and Nellie Anglin, by leave of court, filed their petition of intervention, in which they alleged in substance the same facts pleaded by defendant, and they likewise prayed that the pretended deed and vendor’s lien notes be declared to be a cloud upon the title to said land, and that the same be cancelled.

Plaintiff by replication pleaded matters by way of estoppel against defendant and intervenors.

At the trial, and after the close of the' testimony, the district court instructed a verdict in favor of plaintiff and against defendant and intervenors on all issues, and judgment was accordingly rendered on the 7th day of December, 1936, for the amount of the notes, interest, and costs, and for a foreclosure as against defendant and intervenors of the vendor’s lien on the land described in plaintiff’s petition. From this judgment defendant and inter-venors perfected an appeal by writ of error to the Court of Civil Appeals for the Eleventh Supreme Judicial District, and that court affirmed the judgment of the district court. 118 S.W.2d 817. The case has come to this Court by writ of error to the Court of Civil Appeals, granted upon the application of defendant and in-tervenors as plaintiffs in error here.

Section 50 of Article XVI of the State Constitution, Vernon’s Ann.St., provides, in part, as follows: “Sec. 50. The homestead of a family shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of .such purchase money, the taxes' due thereon, or for work and material used in constructing improvements thereon * * *. No mortgage,, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.”

If the instrument under consideration is of the character denounced by the Constitution, it is void, regardless of its form. Therefore, it became the duty ot the trial court, in the first instance, to look beyond the language of the purported deed and to consider, if from the facts and circumstances surrounding, its execution, and-in evidence, an issue of fact was created which showed or tended to show that the intent of the grantors w.as to fix a lien upon the homestead in contravention of the Constitution. It is immaterial in the consideration of this case whether the purpose of the grantors was to further secure the hank in the payment of D. M. Anglin’s existing indebtedness, or to transfer these notes to the bank in cancellation of such indebtedness, in whole or in rpart, if there was an understanding, express or implied, between the grantors and the grantee that when the purported notes and deed had served their purpose, the homestead should be reconveyed to the grantors.

The effect of the quoted constitutional provision is well stated by Critz, J., in the case of Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689, 693, as follows: “Under the above constitutional provision it is permissible to prove that a deed was in fact intended as a mortgage. The pretended sale, with condition of defeasance, prohibited by the Constitution, includes any character of pretended sale, having for its purpose the placing of a lien on the homestead, other than those expressly permitted by the Constitution, and it is immaterial whether or not the condition of de-feasance is expressed in the instrument. In this regard the latter portion of the above-quoted provision of the Constitution is an enlargement of the prohibition against mortgages, deeds of trust, and other liens on the homestead. It is not the condition of defeasance that is condemned, but the pretended sale. Astugueville v. Loustaunau, 61 Tex. 233; Hardie v. Campbell, 63 Tex. 292. When it is shown that the conveyance was in fact intended as security for debt, with a condition of defeasance upon the payment of the debt, .a pretended sale within the inhibition of the Constitution is shown. Hardie v. Campbell, 63 Tex. 292. In such instances it is not necessary to show fraud, accident, or mistake, and the constitutional prohibition against pretended sales cannot be defeated by reciting a contractual consideration.”

Under the present Constitution the fact that the homestead owners may have removed from the homestead or that they died subsequent to the execution of such a mortgage or pretended deed, will not in either instance make that valid which the Constitution has expressly denounced as being forever void. Inge v. Cain, 65 Tex. 75; Hays v. Hays, 66 Tex. 606, 1 S.W. 895; Madden v. Madden, 79 Tex. 595, 15 S.W. 480; National Bond & Mortgage Co. v. Davis, Tex.Com.App., 60 S.W.2d 429; Kearby v. Cox, Tex.Com.App., 211 S.W. 932; Toler v. Pertitta, Tex.Com.App., 67 S.W.2d 229; Rich v. Walker Smith Co., Tex.Com.App., 57 S.W.2d 1098.

The first and principal question, therefore, which this Court must decide is as to whether the evidence raised an issue which should have been submitted to the jury, tending to show that the purportéd deed from D. M. Anglin and wife, Mary E. Anglin, was, as alleged by plaintiffs in error, a pretended sale of the homestead for the purpose of creating an apparent lien against the homestead, the ultimate purpose of which was to credit or cancel the existing indebtedness of D. M. Anglin in favor of the Cisco Banking Company.

In determining in any case whether or not error has been committed by a trial court in instructing a verdict, the testimony must be considered in the light most favorable to the losing party. Conflicts in the testimony must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the verdict. Charles v. El Paso Elec. Co., Tex.Com.App., 254 S.W. 1094; Keely v. Carpenter, Tex.Civ.App., 67 S.W.2d 328, writ of error dismissed; 3 Tex.Jur., pp. 1049, 1051.

Bearing in mind the foregoing statement of law, we will summarize in some detail the pertinent facts as disclosed by the record, which we have concluded sufficiently raised issues which should have been submitted to the jury.

It was unquestioned that the premises in controversy constituted the homestead of D. M. Anglin and wife at and for some years prior to the execution of the notes and deed in question. The notes are dated September 23, 1931, and the written transfer of the notes by D. M. Anglin to the bank bears the same date, whilst the deed was not dated until October 30, 1931. All of said notes were personally endorsed by D. M. Anglin. D. M. Anglin and wife were in possession of the homestead premises when the notes and deed were executed, and they remained in such possession until the death of D. M. Anglin, April 9, 1934, and thereafter his wife, Mary E. Anglin, resided on such premises until her death July 6, 1935.

The bank knew that this land constituted the homestead of these people, and that they were residing thereon when the notes and the deed were executed. The bank also knew that D. M. Anglin and wife were the parents of W. W. Anglin, the grantee named in the deed. W. W. Anglin at the times mentioned lived in a distant county, and the notes were mailed to him in an envelope bearing the return address of the bank’s lawyers. One of plaintiff’s lawyers took the acknowledgments of D. M. Anglin and wife to the deed, and also D. M. Anglin’s acknowledgment to his written transfer of the notes to the bank, which transfer predated the deed, as did the notes. The deed was never sent to W. W. Anglin by D. M. Ang-lin, or by anyone for him, and W. W. Anglin never saw the deed, nor had it in his possession. The deed was filed for record in the office of the county clerk of Eastland County on November 4, 1931, and the only testimony as to how it came to be recorded was by Guy Dabney, president of the Cisco Mortgage Loan Company, also vice-president of its predecessor, the Cisco Banking Company, who stated in answer to questions by the defendant, as follows: “I think he (D. M. Anglin) brought the whole thing at once. I don’t know whether he had the transfer or not; he either had it or made it there; if I remember correctly we sent the deed and the transfer over here for record at the same time.” D. M. Anglin gave no directions to the bank or any of its officials to have the deed recorded.

There were ten alleged vendor’s lien notes recited in the deed, aggregating $1,-000, which was the same amount as the aggregate of the several items of indebtedness then owing by D. M. Anglin to the bank. The deed recited a fictitious cash consideration in addition to the notes. W. W. Anglin never took possession of the place after the execution of the deed, nor was it his intention to do so, nor was it his intention to purchase this land. He never collected any rents from D. M. Anglin, or from his mother after D. M. Anglin’s death. The Cisco Banking Company did not pay D. M. Anglin any money for the transfer of the notes by him to the bank, but merely gave him credit for or on his indebtedness to the bank. After the notes were transferred by D. M. Ang-lin to the bank, he, alone, was notified by the bank to pay such of the notes as became due during his lifetime. He did pay the first note, and he also paid some interest on all the notes at different times. W. W. Anglin was never notified by the bank or the plaintiff to pay any of said notes, nor did he make any such payments.

At the time this deed and these notes were executed the Cisco Banking Company was in process of liquidation. By an instrument of writing dated June 22, 1934, Cisco Banking Company sold, transferred, and assigned to plaintiff, Cisco Mortgage Loan Company, all its assets, for a stated consideration of $10 and assumption of the indebtedness of the Banking Company. The stockholders of the Mortgage Loan Company are the same persons as those who owned the Cisco Banking Company.

It is obvious that these facts and circumstances tended, at least, to show that both the grantors and the grantee by their actions treated the purported deed as of no effect as a conveyance of the title to the homestead. It is also significant that the ten alleged vendor’s lien notes measured the exact aggregate amount of the items of indebtedness then owing by D. M. Anglin to the Cisco Banking Company, and that these notes were transferred to the bank contemporaneously with their execution, and before there was any delivery of the deed, actual or constructive, if there ever was such a delivery. These facts could reasonably have been considered by the jury as evidence of an understanding between the grantors and grantee and the Banking Company at and prior to the execution of these instruments that the purpose of the grantors was not to convey title, but to give further security to the Banking Company for the payment of D. M. Anglin’s indebtedness. Consistent with that not unreasonable deduction was the fact that at no time prior to the death of D. M. Anglin did the bank or the plaintiff by any act of theirs indicate that they considered that W. W. Anglin was liable to either of them, notwithstanding he was the apparent maker of the notes.

It was said by the Supreme Court in the case of Loving v. Milliken, 59 Tex. 423, that in determining whether an instrument is to be construed as an absolute conveyance or a mortgage when there is no de-feasance expressly agreed upon or recited in the deed, equity looks to all the circumstances preceding and attending the execution of the instrument, and sometimes those which have subsequently occurred. “From these the transaction will take its hite, no matter what coloring the declarations and apparent agreement of the parties have attempted to give it.”

In Gray v. Shelby, 83 Tex. 405, 18 S.W. 809, 810, this Court again said that the character of an instrument, such as the deed now under consideration, was to be determined “by the intent with which the grantors executed and the grantee received it.”

In this case the intent of the grantee not to consider the purported deed as a conveyance of the Anglin homestead to him was shown by positive testimony. A like intent of the grantors in executing such instrument may reasonably be inferred by their continuing to reside upon the homestead the remainder of their lives, without making any attornment to the grantee, and by D. M. Anglin continuing to recognize the notes as evidence of his primary indebtedness to the bank.

In Keely v. Carpenter, Tex.Civ.App., 67 S.W.2d 328, 331, the court reversed the judgment of the district court, which had given a peremptory instruction in a case where the appellants as plaintiffs below sought to annul a deed purporting to convey their homestead, on the ground that the instrument was in fact a pretended sale of the homestead, given for the purpose of creating a mortgage in favor of the appellee. In the course of its opinion the court quoted from Devlin on. Deeds, 2d Ed., vol. 3, p. 1654, where it is said: “If the vendor remains in possession of the property after the alleged sale, this is a circumstance that tends to show that it was not really a sale but a mortgage for such continuing possession in the vendor, after a sale, if not inconsistent with the sale, is an unusual accompaniment of it.”

The case of Young et al. v. Blain, Tex.Com.App., 245 S.W. 65, 67, involved also the question of a pretended sale of the homestead, and there, as in this case, the trial court had given a peremptory instruction against the homestead claimants, and his action in so doing was affirmed by -the Court of Civil Appeals, 231 S.W. 851. In- reversing the judgments of the, appellate and trial courts, the Commission of Appeals, after citing with approval the case of Loving v. Milliken, supra, said: “Our. Constitution guarantees to our people the right of trial by jury. Of this right they should not be lightly deprived, but only where the case is clearly one for the court. We do not think the case at bar is such a one. As we view it, the peremptory instruction should not have been given. We think the case should be reversed in order that the jury may determine whether the instrument was, in fact, a deed or a mortgage.”

It is hardly necessary to say that this case is not controlled by the doctrine announced in Eylar v. Eylar, 60 Tex. 315, which seems to be relied upon by defendant in error, and which was cited in the opinion of the Court of Civil Appeals. Here the questioned deed had not been recorded when the bank acquired the notes from the grantor, D. M. Anglin. Nor was the deed exhibited to the bank by the grantee as a delivered instrument at or before the transfer of the notes, but to the contrary the deed was then found by the bank in the possession of the grantor; and it appears that the only incident that might tend to show a delivery of the deed was the act of the grantor, D. M. Anglin, in surrendering the deed, together with the notes, to the bank. These facts, alone, regardless of all other questions in the case, made it the duty of the bank to make proper inquiry of the grantors, who were then in possession of the homestead, in order to ascertain their intent and purpose in executing the purported deed. This duty, under the circumstances, would have been imposed upon the bank, even had it paid a valuable consideration, in law, for the notes without actual knowledge of the invalidity of the deed.

In the Eylar case the owners conveyed their homestead by deed absolute on its face, and which recited a cash consideration paid. The deed was recorded, and several months thereafter the vendee sold the land to another person, who paid a valuable consideration therefor, without actual knowledge that the deed was claimed to be in reality a mortgage. On that state of facts the court held that the remote vendee was not required to inquire further as to the title when he found on record in the proper county a deed from the homestead owners properly proved up and registered, notwithstanding they remained in possession of the premises. That holding was necessarily predicated upon the doctrine of estoppel, although that equitable principle was not elaborated upon by the court in its opinion.

The Eylar case has several times been followed by this Court, but only in cases when the facts were shown to be within the closure of that case. It is not important in the consideration of this case.

The defendant in error is correct in asserting that the homestead owners might lawfully, if they saw fit so to do, sell their homestead for the purpose of paying D. M. Anglin’s', indebtedness to the bank, and if the jury should so find, other questions will become immaterial. However, as heretofore held, the evidence raised the issue that the deed was not an absolute conveyance, but that it evidenced a pretended sale of the homestead for the purposes above mentioned; and if such is found to be the case, the bank will not occupy the position of a bona fide holder of the purported lien against the homestead, notwithstanding it may have become a prima facie bona fide holder of the notes, stripped of the lien. The rule pertaining to such a situation is well announced in the case of Hill v. Engel, Tex.Civ.App., 89 S.W.2d 219, 221, writ of error refused, wherein it was said: “ * * * It may be conceded that in the absence of evidence to the contrary, the holder of a negotiable note is presumed to be a good-faith purchaser for value and without notice, and that his right to judgment for the debt evidenced by the note is not affected by the undisclosed equities between prior parties; but this rule of commercial law prevails merely for the purpose of-facilitating the transfer of negotiable paper and applies only to the maker’s personal obligation to pay the debt. It does not govern the right- to enforce the lien. Wood v. Sparks (Tex.Com.App.) 59 S.W.(2d) 361, pars. 3 and 5, and cases there cited; Murphy v. Williams, 103 Tex. 155, 124 S.W. 900; First Nat. Bank of Muscogee v. Campbell, 24 Tex.Civ.App. 160, 58 S.W. 628.”

If, as the record now shows, the notes were acquired by the bank in consideration of its crediting or canceling the pre-existing indebtedness of D. M. Anglin to the bank, such consideration, alone, would be insufficient to make the bank a bona fide holder of the alleged lien, if the deed was a pretended one within the purview of the constitutional prohibition, and it would become immaterial in such case whether the bank did or did not have notice of the purpose and intent with which such instrument was executed. That doctrine is based upon the equitable principle that one who asserts his title or right under a deed or mortgage, which is void in its inception, cannot as against the real owner claim to be a bona fide purchaser or lien holder, if he has paid nothing for his asserted title or right other than the nominal cancellation or crediting of such owner’s indebtedness. “There being no new consideration, should the grantee or mortgagee,” or other lien holder, “lose the land or his lien upon it, he still has his debt, and for that reason is held to have parted with nothing of value.” ■

In addition to the Engel case, supra, see: Steffian v. Melmo Nat. Bank, 69 Tex. 513, 6 S.W. 823; Swann v. Rotan State Bank, 115 Tex. 425, 282 S.W. 789, in which cases formerly holding to the contrary were expressly overruled; McKamey v. Thorp, 61 Tex. 648; Andrews v. Security National Bank, 121 Tex. 409, 50 S.W.2d 253, 83 A.L.R. 44; Vogel v. Zipp, Tex.Civ.App., 90 S.W.2d 668, writ of error dismissed; Brannon v. Gartman, Tex.Com.App., 288 S.W. 817; Walter Connally & Co. v. Gaston, Tex.Civ.App., 295 S.W. 953.

The plaintiff was in no better position than was the bank to assert its bona fides as.holder of the purported vendor’s lien notes, for the reason that at the time it acquired these notes by transfer from the bank, one of the notes was past due. Harrington v. Claflin & Co., 91 Tex. 294, 42 S.W. 1055; Smith v. New Waverly State Bank, Tex.Civ.App., 76 S.W.2d 201, writ of error dismissed; Masterson v. Turnley, Tex.Civ.App., 220 S.W. 428; Ferguson v. Wiede, Tex.Civ.App., 46 S.W. 392. Moreover, at the time the plaintiff acquired the notes, the widow of D. M. Anglin was in possession of the homestead; and it appears that the same persons who owned the bank also owned the plaintiff corporation, and as has been expressed, it merely "stepped into the shoes” of the Cisco Banking Company. Vogel v. Zipp, Tex.Civ.App., 90 S.W.2d 668, writ of error dismissed; Williams v. Daniels, Tex.Civ.App., 4 S.W.2d 189, writ of error refused; Mason v. Olds, Tex.Civ.App., 198 S.W. 1040, writ‘of error refused.

The district court should have submitted to the jury as an issue of fact, whether or not there was a delivery of the deed by D. M. Anglin and wife to W. W.-Anglin. It was necessary that the plain-¿iff should have established that fact before he could be entitled to a foreclosure of the .alleged vendor’s lien, for in order to operate as a transfer of-the title to the land, the deed must have been delivered to the grantee. It is not always necessary that such a delivery should be made to the grantee in person, as delivery to a third person for the use and benefit of the grantee is effective if accepted' by the grantee. But merely placing the deed in possession of a third person does not; of itself, authorize a presumption that it was made with the intent of passing title, even though such person should cause the deed to be recorded. Steffian v. Melmo Nat. Bank, 69 Tex. 513, 518, 6 S.W. 823; National Bond & Mortgage Co. v. Davis, Tex.Com.App., 60 S.W.2d 429, 433; Ford v. Hackel, 124 Tex. 402, 77 S.W.2d 1043; 14 Tex.Jur. 828.

Other questions attempted to be raised in this Court by the plaintiffs in error will not be discussed. They do not. appear to be properly assigned both in this Court and in the’ Court of-Civil Appeals.- Also, any such discussion would be premature in view of the fact that the issues may not be the same in all respects upon the next trial.

The judgments of the Court of Civil Appeals and of the District Court are reversed, and the cause is remanded to the District Court for a new trial. . •


source: Caselaw Access Project

author: HICKMAN, Commissioner.

license: Public Domain

text:
    JOHN HANCOCK MUT. LIFE INS. CO. v. GLASGOW et ux.
    No. 2308—7490.
    Commission of Appeals of Texas, Section A.
    July 3, 1940.
    George A. Titterington and W. H. Reid, both of Dallas, for plaintiff in error.
    J. C. Muse, Jr., of Dallas, for defendants in error.
   HICKMAN, Commissioner.

This suit was instituted by John Hancock Mutual Life Insurance Company, plaintiff in error, against G. G. Glasgow and wife, Georgia Maud Glasgow, defendants in error, upon a note and for a foreclosure of a lien upon a lot in Junius Heights Addition to the City of Dallas, used and occupied by the Glasgows as their homestead. In the 'trial court judgment was rendered on the note in favor of the Insurance Company against Glasgow and against both defendants for a foreclosure of the lien as prayed for. That judgment was reformed in certain important particulars by the' Court of Civil Appeals. 117 S.W.2d 888.

The suit arose in this manner: By deed dated February 16, 1923, Mrs. A. M. A. Buchanan and husband. conveyed to G. G. Glasgow Lots 6 and' 7 in Block 21 of the Junius Heights Addition to the City of Dal-als, thé lots each having a frontage of 80 feet. The consideration for such conveyance was $2,000 cash, the execution by G. G. Glasgow of three vendor’s lien notes, payable to Mrs. Buchanan, each for the' principal sum of $2,022.21, the assumption by G. G. Glasgow of three notes for $400 each, payable to B. R. Packard, and the assumption by him of two paving obligations due the Uvalde Paving Company, each for the sum of $473.06, one of such obligations being secured by a lien upon Lot 6 and the other by a lien upon Lot 7. The deed contained the express provision, which was declared to be binding upon the grantors, their heirs and assigns, that, when the said Glasgow should pay as much as one-half of the three notes executed by him, being the notes for $2,022.21 each, the grantors would release the west 75 feet of Lot 6. The deed contained this further provision: “It being agreed and understood that no implied lien is hereby retained on Lot No. 6 (six) for any paving lien or note against Lot No. 7 (seven) and there is no implied lien on Lot No. 7 (seven) for any paving lien or note herein assumed, which is a separate lien on Lot No. 6 (six).”

J. W. Glasgow, father of G. G. Glasgow, paid $1,000 of the cash consideration of $2,-000. Thereafter, G. G. Glasgow and wife by deed dated April 14, 1923, conveyed to J. W. Glasgow the west 75 feet of Lot No. 6, the deed providing that the lot conveyed was subject to all of the liens of record against- the same. G. G. Glasgow and wife improved and established their homestead on the 85-foot lot and J. W. Glasgow and wife improved and established their homestead on the 75-foot lot. Subsequently the first of the three notes for $2,022.21 each was paid and the second of said notes was transferred by Mrs. Buchanan to Mrs. Phebe B. Glasgow, wife of J. W. Glasgow, and mother of G. G. Glasgow, as her separate property and estate. By the assignment the lien securing that note was made inferior to the one retained by Mrs. Buchanan to secure Note No. 3 owned by her. With the status as above detailed existing, G. G. Glasgow made application to the plaintiff in error for a loan to take up the following indebtedness: First, Notes Nos. 2 and 3 of the three notes for $2,022.21 each executed by him to Mrs. Buchanan; second, the three $400 Packard notes; and third, that portion of the indebtedness for paving which was secured by a lien on Lot 7. (No complaint is made of that portion of the judgment relating to the paving lien, and it will not be further noticed in this opinion.)

As security for the loan for which he made application, Glasgow offered the 85-foot lot, which was then admittedly his homestead. His application was accepted and thereafter, on July 20, 1926, Mrs. Phebe Glasgow assigned to plaintiff in error Note No. 2, Mrs. Buchanan assigned to it Note No. 3, and Packard assigned to it the three $400 notes above mentioned. Each assignment was of the lien securing said respective notes and each recited that it was understood and agreed that the lien therein transferred should be against the 85-foot lot, that is, Lot 7, and 5 feet off of Lot 6 only, and each further recited that the 75-foot lot was thereby released from such lien. On the same date that these several assignments were executed, G. G. Glasgow and wife executed a deed of trust on the 85-foot lot in which the plaintiff in error was named as beneficiary, the same reciting that it was given to secure a note for $5,900, executed in renewal of the above-mentioned obligations and liens which had been assigned to it.

The instant suit was brought by plaintiff in error on the note given it by G. G. Glasgow and for a foreclosure of the deed of trust lien on the 85-foot lot. In so far as the judgment awarded the plaintiff in error a recovery on the note against G. G. Glasgow, no question is presented. The whole controversy is with reference to the validity of a portion of the lien as against the homestead.

We shall first consider that question as related to the notes executed by Glasgow to Mrs. Buchanan. As noted above, the loan made by plaintiff in error to G. G. Glasgow, for which the deed of trust was executed as security, was given in part as a renewal of Notes Nos. 2 and 3 of the series executed by G. G. Glasgow to Mrs. Buchanan, each in the sum of $2,022.21. It is the theory of defendants in error, which theory was adopted by the Court of Civil Appeals, that only a part of the indebtedness evidenced by those notes represented purchase money for their homestead, and that, to the extent that the renewal note and the deed of trust represented the pui'chase price of the 75-foot lot belonging to their father, same could not be made a valid lien against their home by the process of shifting such lien from the one lot to the other. At the time the application for writ of error was granted we were tentatively of the opinion that the Court of Civil Appeals was in error in upholding such theory, but upon more mature consideration we have concluded that it was not in error.

As above noted, the deed from G. G. Glasgow to his father conveying the 75-foot lot recited that same was conveyed subject to all of the liens of record against it. That recital evidenced an intention on the part of the vendor and vendee that the lot should remain liable for the indebtedness against the two lots to the same extent that it was at the time of the severance, J. W. Glasgow immediately -made this lot his homestead. The status then existing was that each of the parties owned a homestead against which there was a joint incumbrance, that incumbrance being for the purchase price of the two jointly and not for the purchase price of either one of them.. As between those parties there were no equities calling for a mar-shalling of assets whereby either lot should be sold first in satisfaction of the incum-brance. When all of this indebtedness was shifted to the 85-foot lot, the home of G. G. Glasgow, there can be no question but that a burden was thereby added' thereto and an incumbrance placed thereon which was not wholly for the purchase price of that lot. The deed of trust was executed to secure, in part, the purchase money due upon the lot described therein and, in part, the purchase money due upon the J. W. Glasgow homestead. Any other conclusion would be out of harmony with the spirit, purpose and letter of Article 16, Section 50, of our Constitution, Vernon’s Ann.St., which protects homesteads from forced sale for the payment of all debts except for the purchase money thereof, taxes due thereon and permanent improvements erected in the manner there prescribed. Morrison v. Lazarus, 90 Tex. 30, 36 S.W. 426.

We cannot agree that the judgment of the trial court should be upheld upon the authority of Smith v. Owen, 49 Tex.Civ.App. 51, 107 S.W. 929. In that case the purchaser of a tract of 458 acres of land, against which a vendor’s lien was created to secure a part of the purchase price, conveyed all of the land except 62 acres upon which he had established his homestead. Thereafter he renewed that part of the note and vendor’s lien remaining unpaid as against the homestead only, and the owner of the vendor’s lien note released from his lien all of the original 458-acre tract except the 62-acre homestead. The validity of the lien against the homestead was upheld, but it is disclosed in the opinion that the proceeds of the sale of the excess were applied upon the note, reducing the amount thereof from $1,405.30 to $111.-08, for which amount only the renewal note was executed. That fact clearly distinguishes the case’ from the instant one.

Neither is the case of Loe v. Bellgardt, Tex.Civ.App., 193 S.W. 714, authority for the proposition that the lien is valid in its entirety. That case may be distinguished from the instant one on more than one ground. In the first place, it was an injunction suit, and there was no allegation in the petition that the proceeds derived from the sale of the excess were not applied to erecting improvements on the homestead. In the next place, equities existed in favor of the purchasers of the excess sufficient to work an estoppel against the wife to set up the defense of homestead. It was reasoned that, if she was estopped as against the purchasers, she was also estopped as against the holder of the lien. That situation does not exist in this case. Obviously, the father could invoke no doctrine of estoppel as against his son. He bought subject to the lien and, by so doing, acknowledged and consented that his lot should remain liable for the lien to the same extent as before the severance.

Our conclusion with reference to this phase of the case is that the Court of Civil Appeals properly prorated the lien allowing a foreclosure against defendant in error’s homestead for only a portion thereof. Whether or not the correct method of arriving at that proportion was employed we are not deciding, for the question was not raised by assignment. The contention here is that the Court of Civil Appeals should not have prorated at all, but should have affirmed the trial court’s judgment.

With reference to the three Packard notes, it is disclosed that each of them was secured by a lien on a separate and distinct parcel of land. One was secured by the east 47 feet of Lot 7, another by the west 33 feet of Lot 7, and the east 14 feet off Lot 6, and the third by another strip 47 feet wide on Lot 6. Referring back to the recital in the deed copied near the beginning of this opinion, it will be seen that the liens securing those notes were not spread over the whole, but each remained against the particular strip to which it was originally attached. One of those notes was secured by a lien upon a strip wholly within Lot 7. As to it the Court of Civil Appeals correctly held that the plaintiff in error was entitled to a foreclosure. As to Note No. 3, which was secured by a lien on a strip wholly within Lot 6, the court also correctly held that the plaintiff was not entitled to a foreclosure as against the G. G. Glasgow lot. As to the other note, it appears that same was a lien upon 33 feet of Lot 7 and 14 feet of Lot 6. Of the 14 feet of Lot 6 encumbered by this lien 5 feet was a part of the G. G. Glasgow lot, making all but 9 feet of this strip within the limits of that lot. The Court of Civil Appeals allowed recovery upon that note to the extent of 38/47ths thereof. From what is written above in our discussion of the other series of notes, it is apparent that we approve the principle of prorating the indebtedness securing that note. Whether it should have been by the front foot or upon some other basis, we need not here decide, for no specific question is raised with reference thereto.

We approve the judgment rendered by the Court of Civil Appeals, and same is accordingly affirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    A. F. DAY CONST. CO. v. HUBBARD.
    No. 1832-7532.
    Commission of Appeals of Texas, Section B.
    July 3, 1940.
    Wm. C. Scurry, Callaway & Reed, Carl B. Callaway, and Frank C. Brooks, all of Dallas, for plaintiff in error.
    R. Guy Carter and Raymond Rosoff, both of Dallas, for defendant in error.
   TAYLOR, Commissioner.

This suit is between a subcontractor and a contractor, for damages for an alleged breach of contract. The contractor, A. F. Day Construction Company, procured from Texas Pipe Line 'Company a contract to construct a pipeline about ten miles in length in Lea 'County, New Mexico. Chester Hubbard, the subcontractor, alleges he made an oral contract with the construction company to unload the pipe for the job, haul and string it along the right-of-way, cut the ditch for the pipe and back-fill over the pipe, for a stipulated consideration, and that the construction company refused to permit him to perform the work.

Upon trial Hubbard was awarded judgment for $1,001.86, which represented the profit he would have made had he been permitted to perform the work. The Court of Civil Appeals affirmed the judgment. See the opinion (122 S.W.2d 698) for a fuller statement.

Hubbard in his original petition alleged making the contract with the construction company on December 11, 1935, and alleged its breach by the company on the same day. He alleged also that the construction company, on the day 'before entering into the alleged agreement with him, had been the successful bidder for the work of constructing the pipeline, and that immediately thereafter a contract was entered into between the pipeline company and the construction company for the erection and construction of the pipeline.

It is one of the stipulations of the general contract between the pipeline company and the construction company that “no part of the work shall be sublet without the approval of the (pipeline) company.” Upon exception being urged by the construction company that it was not alleged whether the contract upon which the suit was based was subject to the terms and provisions of its general contract with the pipeline company, Hubbard so amended his allegations as to allege that his contract with the construction company was independent of the general contract.

The concrete question presented is whether Hubbard, in the absence of approval of his, alleged contract by the pipeline company, was entitled to recover the profit he would have made had he been permitted to do the work. The answer depends finally upon whether the agreement established upon the trial was, considered in connection with the facts found ‘by the jury and other undisputed facts, independent of the general contract, and was, of itself, a complete contract unaffected by the general custom found to exist with respect to the pipeline business.

If Hubbard failed to establish such a contract the recovery awarded him for profit he would have made as a result of its performance is erroneous.

The jury found, as pleaded by the construction company, that Hubbard knew of the general contract at the time he made his contract with the construction company, and that it was a general custom in the pipeline business that a subcontractor take “his subcontract subject to the terms and conditions of the general contract.”

It is undisputed that the work covered by Hubbard’s contract was, as was known to Hubbard, part of the work the construction company was obligated to do under the general contract, and that the subletting to Hubbard of the work covered by his subcontract was not approved by the pipeline company. It appears to be undisputed that the pipeline company approved by letter the contract entered into by the construction company and the subcontractor who did the work Hubbard alleges he contracted to do.

Hubbard himself testified that had he dug the ditch in which the pipe was to be laid he would have had to satisfy the pipeline company; that he knew about the general specifications of the Texas Company contract forms, and that specifications “as to the width and depth etc., in the subcontract” were the same as in the general contract.

It is undisputed that Hubbard and the construction company were both in the pipeline business, and that they had 'been in that business for several years. It is not claimed by Hubbard that it was stipulated as a part of his alleged contract that the parties did not intend to be bound by the custom in Texas and New Mexico in the pipeline business for the subcontractor to take his contract subject to the terms of the general contract.

Under the facts stated Hubbard’s alleged contract was not independent of the terms of the general contract; and inasmuch as the subletting to Hubbard was not approved, the alleged contract was incomplete. Orient Mut. Ins. Co. v. Reymershoffer’s Sons, 56 Tex. 234; Von Harton & Clark, Inc. v. Nevels et al., Tex.Civ.App., 234 S.W. 676; Bowles v. Driver, Tex.Civ.App., 112 S.W. 440; Restatement of the Law of Contracts, Vol. 1, p. 352, secs. 248, sub-d. (2) and 249.

We do not have before us a question of quantum meruit recovery, such as would be presented if Hubbard had performed in whole or in part the work covered by the agreement; or such as is presented when a contractor breaches a contract with his subcontractor after' the former has received from 'the latter materials the latter furnished in accordance'with the terms of the subcontract.

Herry v. Benoit et al., 70 S.W. 359, 360, cited by the Court of Civil Appeals as authority for its holding in the present case, appears to have involved the question just referred to.. In that case the judgment below in favor of the subcontractor was upheld on the theory that the subcontract sued upon was independent of the general contract, and had been performed at least in part by the subcontractor in furnishing to the contractor some of the material covered by the subcontract. The court expressed the view in its opinion that the trial court was correct in holding that the contractor (Herry) could make a contract with the subcontractor (Benoit) with respect to the work “which would be independent of the written contract between Herry and See-katz Bros, [the owner].”

It is unnecessary, however, for us to determine whether the holding is correct, since the question on which the case turned is not the same as that involved in the present case. In the Herry case the facts disclose it was not established, as in the present case, that the general custom of those engaged in the business of the contractor and subcontractor was for the latter to take his contract subject to the terms of the general contract; also that the subcontract was breached after the subcontractor had procured certain material for the job that was dead stock on his hands after the breach.

It appears from what has been stated that the judgment of the trial court awarding recovery for profits that would have been made had the work in question been performed, is erroneous; and that the Court of 'Civil Appeals erred in affirming it. The judgment of the Court of Civil Appeals is reversed and set aside, and judgment is here rendered for plaintiff in error.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge. GRAVES, Judge. CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    HODGE v. STATE.
    No. 20889.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    On Motion for Certiorari April 24, 1940.
    On Motion to Reinstate Appeal May 22, 1940.
    On Motion for Rehearing June 28, 1940.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine of $300.

The caption fails to show the date of the adjournment of the term of court at which appellant was tried. Under the circumstances, the appeal must be dismissed.

The appeal is dismissed

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Certiorari.

GRAVES, Judge.

This cause has been heretofore dismissed because of a defective caption in that said caption does not show the date of adjournment of the term of court at which appellant was-tried.

We are now asked to issue our writ of certiorari directing the county clerk of Walker County, Texas, to prepare a supplemental transcript showing such date.

The motion for the issuance of such writ is granted, and the clerk of this court is directed to issue such a writ requiring the county clerk of Walker County, Texas, to prepare his supplemental transcript showing the date of the convening and the date of adjournment of the term of the county court of that county at which appellant, L. A. Hodge, was tried, and transmit the same to this court.

On Motion to Reinstate Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant did not testify and introduced no witnesses.

Appellant was observed by officers driving his car at an excessive rate of speed. After the car stopped the officers observed “something in the front seat.” Appellant attempted to cover it up with his overcoat. One,of the officers opened the door of the car and appellant got out. The officers then observed four or five pints of whisky in the car.

The complaint and information are deemed sufficient. No bills of exception are brought forward.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

On March 6, 1940, the appeal was dismissed because of a defective caption in the transcript. On April 24th, 1940, at the instance of appellant, a writ of certiorari was granted. to the end that such defect be remedied. It was corrected by supplemental transcript, and on May 22, 1940, the appeal was reinstated and the judgment affirmed.

Had appellant desired to file a motion for rehearing he had 15 days from said date to do so. Not until June 13, 1940, was such motion received by the clerk of this court, which was long after the expiration of the 15 days. Under such circumstances the motion may not be considered. Branch’s Ann.Tex.P.C.,. Sec. 605, and cases cited. 4 Tex.Jur. page 510, Sec. 357, and cases there cited.

The motion is ordered stricken from the docket.


author: GRAVES, Judge.

text:
    MOSLEY v. STATE.
    No. 21156.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Percy Woodard, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was tried before the county judge charged with unlawfully carrying a pistol, and by the court fined the sum of $100.

The complaint charging this offense is as follows: “I, H. H. Whatley, do solemnly swear that I have reasons to believe, and do believe, that Alvin Mosley, on or about the 14th day of October, 1939, in the County of Harrison, and State of Texas, and before ' the making and filing of this complaint, did then and there unlawfully on or about his person carry a pistol against the peace and dignity of the State.”

The information follows the complaint in that it is there charged that appellant did carry on ‘or’ about his person a pistol is will be noted that this offense is charged in the disjunctive, and such allegation has often been held bad because of such fact. The allegation should have charged this offense in the conjunctive, that is, the word “and” should have been used in place of the word “or”, and failing to do so the complaint and information are bad for uncertainty. We quote from Branch’s Penal Code, p. 556, as follows: “An indictment or information alleging that defendant did carry on “or” about his.person a pistol is bad for uncertainty,, because the allegation is in the alternative. Davis v. State, 23 Tex.App. 637, 638, S S.W. 149; Canterberry v. State, Tex.Cr.App., 44 S.W. 522; Countryman v. State, 52 Tex.Cr.R. 23, 105 S.W. 181; Lewellen v. State, 54 Tex.Cr.R. 640, 641, 114 S.W. 1179; Harris v. State, 58 Tex.Cr.R. 523, 126 S.W. 890; Hunter v. State, 73 Tex.Cr.R. 459, 166 S.W. 164.”

The judgment is reversed and the prosecution ordered dismissed.


author: BEAUCHAMP, Judge.

text:
    BARBEE v. STATE.
    No. 21112.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Percy Foreman, of Houston, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given six months sentence in the County Court at Law No. 2, Harris County, upon his plea of not guilty on an indictment charging theft of over $35. From that judgment he appeals.

The record is before us without statement of facts or bills of exception. All of the proceedings in the case appear to be regular and there is nothing presented for review by this court.

The judgment of the trial court is affirmed.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    REESE v. STATE.
    No. 21058.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    On Rehearing June 26, 1940.
    Oscar Callaway, of Comanche, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction in the District Court of Comanche County on a charge of perjury. The penalty is two years in the state penitentiary.

The indictment returned in the case is fatally defective in that it does not conclude, “against the peace and dignity of the State”, as required by statute. Vernon’s Ann.C.C.P. art 414.

The case is reversed and the prosecution ordered dismissed.

On State’s Motion for Rehearing.

KRUEGER, Judge.

At a former day of this term of court we reversed the judgment of conviction and ordered the prosecution dismissed on the ground that a material and essential averment . was omitted from the indictment. This appears to have been an error on the part of the clerk on copying the indictment in the record. The State has filed a motion for a rehearing and has brought forward a certified copy of the indictment which appears to be in due and proper, form. Therefore, we will discuss the appellant's contention that the evidence is insufficient to sustain his conviction.

Appellant was charged with and convicted of perjury alleged to have been committed in the trial of the case of the State of Texas v. Richmond Griffith in Cause No. 7958 pending in .the District Court of Comanche County wherein Richmond Griffith was charged with the theft of turkeys from Monroe Elliott. It was further averred that upon the trial of said cause the appellant testified that he and Richmond Griffith had gotten two turkeys from his (appellant’s) father, Noah Reese, whereas in truth and in fact the said Richmond Griffith had on the 12th day of November, 1937, unlawfully taken two'turkeys from Monroe Elliott and the said Richmond Griffith and Bee Reese did not get two turkeys from Noah Reese as testified to by the said Bee Reese.

For .a better understanding of the conclusion at which we have arrived in this case we will briefly set forth the salient facts proved by the State upon the trial. The court reporter who reported the case of the State of Texas v. Richmond Griffith testified that appellant, on the trial of said cause, testified that he and- Richmond Griffith got two turkeys from his father, Noah Reese, and sold them to Ray McDonald. Monroe Elliott testified on behalf of the State that on the night of November 12, 1937, he lost two turkeys from their roost. One was white and the other was black. The next morning he discovered two foot-prints about the roost, and he noticed some mud or dirt on the tree indicating that some one had climbed up the tree in which the turkeys roosted. He never saw the two turkeys again. McDonald testified that the appellant sold to him two turkeys about ten or twelve days before Thanksgiving in the year 1937; that one of them was white and the other was black or bronze. Richmond Griffith testified that he was tried for the theft of turkeys from Monroe Elliott. He denied going to Noah Reese’s place on November 12, 1937, or at any other time, to get any turkeys. He testified that L. D. Vaughn, Bee Reese and he (witness) were together about the time in question; that they got together about six or seven miles from Comanche and came to town; that he and Vaughn went out six or seven miles and got two turkeys which they turned over to appellant to sell; that they had an agreement among themselves to divide the money in three parts; that appellant told them where to get the turkeys; that he did not remember the kind or color of the turkeys which they stole.

The foregoing is in substance the material facts proved by the State.

Appellant takes the position that, while it may be true that Richmond Griffith and Vaughn stole some turkeys from Elliott as testified to by Griffith, yet he contends that there is not any fact or circumstance independent of the testimony of Griffith to show that he (Griffith), Vaughn and appellant came to town together on the day in question or that appellant told Griffith and Vaughn where to go to steal the turkeys; nor that he (appellant) had directed them to go to the Elliott place to get any turkeys or that appellant had agreed w'ith them to divide the money among themselves.

Article 723, C.C.P., provides as follows:

“In trials for perjury or false swearing, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement under oath, or upon his own confession in open court.”

The material fact to be established by the testimony of two credible witnesses or one credible witness corroborated strongly by other evidence as to the falsity of the alleged false testimony, was that appellant and Griffith did not get two turkeys from Noah Reese at the time in question, as charged in the indictment. It is true that Griffith testified that they did not get any turkeys from Noah Reese but this is not sufficient. The law requires more than the testimony of one witness. It requires the testimony of two credible persons or the testimony of one strongly corroborated by other evidence. We have searched the record in vain for any other fact or circumstance strongly corroborating Griffith on the vital and material issue in the case. Of course, there is some testimony by Elliott that he lost two turkeys about the time that Griffith said he and Vaughn stole two turkeys which they carried to Comanche and delivered to appellant, but this merely tends to corroborate Griffith as to the theft of the two turkeys and not that he and appellant did not also get two turkeys from Noah Reese. In support of the views herein expressed we refer to the folk vmg authorities: Hernandez v. State, 18 Tex.App. 134, 51 Am.Rep. 295; Cuellar v. State, 129 Tex.Cr.R. 530, 89 S.W.2d 784; Hays v. State, 76 Tex.Cr.R. 213, 173 S.W. 671.

Having reached the conclusion that the evidence does not meet the requirements of the law, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: HAWKINS, Presiding Judge.

text:
    WHITE v. STATE.
    No. 20188.
    Court of Criminal Appeals of Texas.
    June 28, 1940.
   HAWKINS, Presiding Judge.

The judgment of conviction was affirmed on March 22, 1939. Tex.Cr.App., 128 S.W.2d 51. Motion for rehearing was overruled May 17, 1939. Appellant made application to the Supreme Court of the United States for writ of certiorari to review the action of this Court. On November 13, 1939 the said Supreme Court of the United States denied the writ, 308 U.S. 608, 60 S.Ct. 170, 84 L.Ed.-, and certified its action to this Court whereupon the stay of execution order was revoked on January 6, 1940, and an alias mandate directed to be issued.

Later, upon motion for rehearing by appellant, the Supreme Court of the United States set aside its former order refusing the writ of certiorari, granted same, and reversed the judgment of this Court, and remanded said cause to this Court for further proceedings not inconsistent with the opinion of said Supreme Court of the United States. 60 S.Ct. 706, 84 L.Ed. —.

Therefore, in compliance with said opinion this cause is remanded to the trial court for further proceeding in said cause, as may be consistent with the opinion of the Supreme Court of the United States.

Accompanying this order, and as a part thereof, is a certified copy of the mandate from the Supreme Court of the United States, now on file as a part of the record in said cause.


author: HALL, Justice.

text:
    GLADEWATER LAUNDRY & DRY CLEANERS, Inc., v. NEWMAN.
    No. 5527.
    Court of Civil Appeals of Texas. Texarkana.
    May 10, 1940.
    Rehearing Denied June 13, 1940.

      Battaile. & Burr, of Houston, and Stinchcomb, Kenley & Sharp, of Long-view, for plaintiff in error.
    Jones & Jopes, of Marshall, for defendants in error.
   HALL, Justice.

Defendant in error instituted this suit in the District Court of Gregg County against- plaintiff in error for damages resulting from injuries sustained by him in a collision between his car and plaip'tiff in error’s laundry truck, driven by one Ernest Thompson. The defendant in error alleged: “* * * That on February 7th, 1936, W. R. Newman and wife, Mrs. W. R. Newman, were proceeding in a southwesterly direction toward Mt. Pleasant along the Union Hill road, Highway between Daingerfield and Mount Pleasant and near the Harts Creek bridge, and while on said road a motor vehicle operated by the defendant, through its agent, servant, and employee, negligently and carelessly drove its motor vehicle into one in which W. R. Newman and wife, Mrs. W. R. Newman, were riding, crashing into them from their rear, inflicting upon plaintiff severe and permanent personal injuries as more fully hereinafter set out; that at the time of said collision-, defendant’s truck was being operated by its agent, servant and employee, who, at all times stated herein was acting within the scope of his employment and actively engaged in forwarding the business of the defendant.” It was specially alleged by defendant in error that plaintiff in error at the time and place of said collision, acting by and through its agent, was operating its laundry truck at a rate of speed in excess of 45 miles per hour without “adequate brakes kept in good working order,” which acts constituted negligence as a matter of law. In the alternative, it was alleged that the laundry truck was “negligently and carelessly being operated at a higher rate of speed than a reasonable and prudent driver would have operated it undqr the same or similar circumstances at the time and place of the collision. * * * In that the defendant negligently and carelessly failed to have its brakes and steering apparatus in good working condition so that the driver of' defendant’s (plaintiff in error’s) car would; be able to control said car and slow its-, speed down and avoid striking plaintiff’s, (defendant in error’s) car.” It was alleged that these acts of negligence on the-part of plaintiff in error’s employee, Ernest Thompson, was a proximate cause-of the injury to defendant in error. Numerous other specific acts of negligence-were alleged by defendant in error, but only those set out above were submitted; to the jury.

Plaintiff in error relied upon a general; demurrer, general denial, arid alleged specially that defendant, in error was guilty-of contributory negligence in the following particulars: (1) “At the time and place of the collision alleged by plaintiff (defendant in error) he suddenly stopped his. car on the highway in front of the truck; being driven behind him by Ernest Thompson, without giving any visible or audible-signal or warning of his intention to so. stop his said car;” and (2) “at the time and place of the collision alleged hy plaintiff (defendant in error) he suddenly and materially reduced the speed of the vehicle which he was operating in front of the truck or vehicle being operated by Ernest Thompson without giving any visible or audible signal_ or warning of his intention to so reduce such speed.” It was alleged further that these acts of contributory negligence were the proximate cause of the injury to defendant in error. Trial was to a jury on special issues, which resulted in a verdict and judgment for defendant in error.

By its 7th proposition, plaintiff in error asserts that the trial court committed reversible error in permitting defendant in error, over its objections timely made, to introduce in evidence the compensation insurance policy carried by it for the benefit of its employees.

On trial of this case in the court below defendant in error introduced in evidence the deposition of E. E. Glenn, secretary and treasurer of plaintiff in error, wherein Glenn stated that his company carried compensation insurance covering its employees, and that it also carried a liability insurance policy covering the laundry truck involved in this collision. It was the contention of plaintiff in error in the court below that Thompson was an independent contractor and not its employee. The facts are undisputed that on or about February 7, 1936, plaintiff in error’s laundry truck crashed into the rear of defendant in error’s automobile. This happened about two miles south of Mt. Pleasant on State Highway No. 49. It was also shown without dispute that the laundry truck had the name of the Glade-water laundry painted on its sides, that it' was loaded with laundry, and that Ernest Thompson was driving the truck at the time of the collision. These facts standing alone raised the presumption (1) that the truck belonged to plaintiff in error; and (2) that Ernest Thompson, the driver, was acting for plaintiff in error at the time of the collision. Globe Laundry v. McLean, 19 S.W.2d 94, Tex.Civ.App., Beaumont; Mrs. Baird’s Bakery v. Davis, 54 S.W.2d 1031, Tex.Civ.App., Ft. Worth; Claer v. Oliver, 62 S.W.2d 354, Tex.Civ.App., Beaumont; Harper v. Highway Motor Freight Lines, 89 S.W.2d 448, Tex.Civ.App., Dallas; Roadway Express v. Gaston, 90 S.W.2d 874, Tex.Civ.App., Texarkana; Weber v. Reagan, 91 S.W.2d 409, Tex.Civ.App., Waco; Younger Bros. v. Power, 92 S.W.2d 1147, Tex.Civ.App., Beaumont; Southern Underwriters v. Girard, 107 S.W.2d 775, Tex.Civ.App., Texarkana; Gregg v. De Shong, 107 S.W.2d 893, Tex.Civ.App., Ft. Worth, writ dismissed; Peveto v. Smith, 113 S.W.2d 216, Tex.Civ.App., Beaumont, affirmed by Supreme Court on this point, Tex.Com.App., 133 S.W.2d 572; Tyler Milk Products Co. v. Shipman, 129 S.W.2d 444, Tex.Civ.App., Texarkana. Before defendant in error introduced in evidence the workmen’s compensation policy carried by plaintiff in error on its employees, or the deposition of E. E. Glenn with respect thereto, his attorney made inquiry, in open court, of the attorney for plaintiff in error as to “whether or not reliance will be had on the defense of an independent contractor or that Thompson was not an employee of the defendant (plaintiff in error) at the time plaintiff (defendant in error) was injured, to. see if the testimony will ‘ be admissible in the record * * *Attorney for plaintiff in error replied: “The defendant (plaintiff in error) reserves the right to make any defense it may under the general denial.” At the time this colloquy occurred there was on file among the papers in the case the oral -deposition of Ernest Thompson wherein he testified to facts, if believed, would constitute him, at the time of the collision, an independent contractor. And it may be said here that this deposition was introduced in evidence and relied on by plaintiff in error to establish such defense. In this situation, with only the presumption of Thompson’s agency, arising from his operation of the laundry truck, as a circumstance in behalf of defendant in error, as against the positive testimony of Thompson that he was not acting for plaintiff in error but for himself at the time of the collision, we think it proper to introduce in. evidence the compensation insurance policy carried by plaintiff in error, when coupled with the testimony of its Secretary-Treasurer, Glenn, to the effect that Thompson was covered by the provision of the workmen’s compensation policy, and was “listed under item ‘laundry collection and delivery.’ ” The true circumstances with respect to the agency of Thompson were locked within the files of plaintiff in error, and the fact alone that the introduction of the compensation insurance policy from such files, to establish this issue and refute plaintiff in error’s defense, might prejudice its rights before the jury, under the particular facts of this case, would not be sufficient reason to deprive defendant in error of this evidence. This proposition is overruled.

Plaintiff in error’s 8th proposition assails the action of the court below in permitting the introduction in evidence of the liability insurance policy carried by it on its laundry trucks at the time of the collision. The rule is well settled in this state that “it is error to bring to the jury the information or impression that the defendant carries liability insurance.” Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039, 1040. It is insisted, however, by defendant in error that the introduction of the liability policy, “clearly falls within one or more of the exceptions to the general rule that indemnity insurance and compensation insurance is ordinarily inadmissible because immaterial to any issue in the case,” for the reason that in this case it does tend to prove a material issue — that Thompson was an employee of plaintiff in error at the time of the collision. We do not so hold in respect to the policy of liability insurance, but granting that there is recognized such an exception as that contended for by defendant in error, still. it could have no application in this case for the reason that the ownership of the laundry truck was not in dispute. As said before, it bore the insignia of plaintiff in error. It was loaded with laundry, and Thompson, the driver thereof, testified that the truck belonged to plaintiff in error. The fact that plaintiff in error carried liability insurance on the laundry truck involved in the collision, as we view the record, could in no wise be a circumstance showing the agency of Thompson. The theory upon which insurance policies are held admissible by the numerous authorities cited by defendant in error from other jurisdictions is that they prove, or tend to prove, a material issue in the case. The introduction in evidence of the • testimony of E. E. Glenn with respect to. liability insurance carried by plaintiff in error, together with the policy of insurance itself, showing on its face that plaintiff in error was insured for $50,000 for injuries to person and $5,-000 damages to property caused by the laundry truck involved in the collision, placed before the jury directly the fact that plaintiff in error was amply covered by insurance and tended to substitute the insurance company for plaintiff in error in the court below. This is true regardless of the limitation placed upon this testimony by the lower court. Judge Hickman, in Texas Co. v. Betterton, supra, emphasizes the Texas rule applicable to a case of this character by the following holding: “It is presented that the verdict could not have been influenced by this evidence. The argument is made that plaintiff in error, the Texas Company, is universally known to be one of the largest oil companies in the world, and that there would be no reason why the jury should shield it against liability and victimize an insurance carrier. It may be true that the jury in this case would as readily have returned a verdict against the Texas Company as against an insurance company, but this is a matter of pure conjecture. Some juries might do so, while others might not. The rule requiring a reversal for an error of this nature is a most wholesome one, and nothing short of an affirmative showing by the record that no injury resulted from the error should be held sufficient to render it harmless.” The above holding, we think, is controlling here. This proposition is sustained.

• We have carefully examined all other propositions brought forward. They are, in our opinion, without merit and are therefore respectfully overruled.

The judgment of the trial court is reversed and the cause remanded.


author: ALEXANDER, Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. SKINNER et al.
    No. 2291.
    Court of Civil Appeals of Texas. Waco.
    May 30, 1940.
    Rehearing Denied June 27, 1940.
    Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.
    W. W. Mason, of Mexia, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for defendants in error.
   ALEXANDER, Justice.

This cause was attempted to be removed to this court by writ of error. The defendants in error have filed motions to dismiss the appeal because the writ of error was not perfected in time. The case was tried in the lower court on July 10, 1939. The plaintiff in error participated in the trial. Petition and bond for writ of error were filed in December, 1939, but citation in error was not issued nor served until after January 1, 1940.

In May, 1939, the legislature enacted the following statute:

“Section 1. -No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.
“Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.
' “Sec. 3. It is hereby provided that this Act shall take effect from and after January 1, 1940.
“Sec.-4. The need that delay of justice be not caused by parties who should reasonably use appeal instead of writ of error and the near approach of the end of the session creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended and this Act shall take effect from and after its passage, and it is so enacted.’’ Acts 1939, Ch. 2, p.. 59, Vernon’s Annotated Civil Statutes, art. 1883a.

It will be noted that the Act contains an emergency clause. The vote was sufficient to suspend the constitutional rule so as to put it into effect at once. It was passed by the Senate on May 29, 1939, and by the House on May 31, 1939, and filed with the Secretary of State on June 1, 1939. It will also be noted that the Act specifically provides that it shall be effective from and after January 1, 1940.

Under the holding of our Supreme Court in Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680, the Act became a law immediately upon its passage, so as to give notice to all who thereafter participated in the trial in the lower court that on and after January 1, 1940, they would not be entitled to review of their cases on appeal through writ of error. We think the Act, when fairly interpreted, means that those who should participate in the trial of their cases in the lower court after the Act became a law, that is, June 1, 1939, would not be entitled to remove their cases to the court of appeals on or after January 1, 1940. While the Act says that such parties shall not be entitled “to review by the Court of Civil Appeals” after said date, we do not think it was intended that the appellate court could not render a judgment therein after that date, but rather that the proceedings could not be removed to the appellate court after the date referred to.

The question then is, did the plaintiff in error remove the case to the court of appeals prior to January 1, 1940, within the meaning of the Act? As said before, the petition and bond were filed in December, 1939, but the citation in error was not issued nor served until after January 1, 1940. It has long been the rule in construing Revised Statutes, art. 2255, which fixes a definite time in which to sue out a writ of error, that the writ is “sued out” within the meaning of the statute when the petition for the writ and bond are filed with the clerk of the court rendering the judgment, and if such filing takes place within the statutory period, it is sufficient, even though the service of citation in error is not obtained until afterward. 3 Tex. Jur. 280; Leavitt v. Brazelton, 28 Tex.Civ.App. 3, 66 S.W. 465; Vineyard v. McCombs, 100 Tex. 318, 99 S.W. 544; American Bankers Insurance Co. v. Flowers, Tex.Civ.App., 64 S.W.2d 806; McPhaul v. Byrd, Tex.Civ.App., 174 S.W. 644; Hohenthal v. Turnure, 50 Tex. 1, 3; Crunk v. Crunk, 23 Tex. 604, 605; Western Union Telegraph Co. v. White, Tex.Civ.App., 143 S.W. 958; Cruz v. State, 76 Tex.Cr.R. 32, 172 S.W. 235; Rounds v. Coleman, Tex.Civ.App., 185 S.W. 640. However, Revised Statutes, art. 2267, covering the perfecting of a writ of error, reads as follows: “When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected.”

Our Supreme Court, in Borger v. Morrow, 125 Tex. 321, 82 S.W.2d 944, held that the phrase “previous requirements,” as used in this statute, included the issuance and service of citation in error, or the waiver thereof, and that until this had been done, the writ of error remained unperfected, and the appellate court did not acquire jurisdiction of the appeal. See also Campbell v. First National Bank in Lubbock, 125 Tex. 303, 82 S.W.2d 954; Adams v. Bida, 125 Tex. 458, 84 S.W.2d 693; 3 Tex.Jur. 355, 416. In the case of Hohenthal v. Turnure, 50 Tex. 1, 3, it is said that the filing of the petition and bond had the effect of conferring jurisdiction on the appellate court for certain purposes and that from and after the taking of such steps, the case is “pending” in the appellate court,. See also Holloman v. Middleton, 23 Tex. 537; Crunk v. Crunk, 23 Tex. 604, 605; Cruz v. State, 76 Tex.Cr.R. 32, 172 S.W. 235. However, the court was there construing a different act from the one here under consideration. The recent decisions of our Supreme Court, as above cited, make it clear that a writ of error proceeding is. not perfected and the appellate court does not acquire jurisdiction over the subject matter until waiver or service of citation in error. From what has been said, it is apparent that this case was not removed; to this court, so as to confer jurisdiction herein, prior to the time the Act here under consideration took effect. Plaintiff in error took some, but not all, of the necessary steps prior to the effective date. It was imperative that the plaintiff in error take all of the necessary steps prior to the effective date of the Act; otherwise, it lost its right- to review by writ of error.

The defendant in error's motion to dismiss the appeal is sustained and the appeal is dismissed.


author: FOLLEY, Justice.

text:
    BLANKENSHIP et al. v. STALLINGS.
    No. 5243.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1940.
    Rehearing Denied July 1, 1940.
    E. L. Klett, of Lubbock, for plaintiffs in error.
    Crenshaw, Dupree & Milam, of Lubbock, for defendant in error.
   FOLLEY, Justice.

This suit was filed by the defendant in error, J. J. Stallings, and others, against the plaintiffs in error, G. T. Blankenship, Farmers Royalty Holding Company, Farmers Mutual Royal Syndicate, Inc., and others, to recover the title and possession of the minerals -in and under certain lands in Hockley County, Texas. In a trial before the court without a jury the plaintiffs in error were represented by an attorney. On September 21, 1939, at the conclusion of the trial, judgment was rendered in favor of the defendant in error and against the plaintiffs in error.

No appeal from such judgment in the ordinary form was attempted, and it was not until March 13, 1940, that the plaintiffs in error filed in the district court of Hock-ley County their petition for writ of error and writ of error bond for the removal of such cause to this court. Citation in error was issued on March 13, 1940, executed on March 18, 1940, and filed on March 20, 1940.

The defendant in error has filed a motion to -dismiss this cause because the writ of error was not perfected in time in view of the 1939 enactment of Senate Bill No. 69 by the Forty Sixth Legislature, which is as follows: .

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.
“Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.
“Sec. 3. It is hereby provided that this Act shall take effect from and after January 1, 1940.
“Sec. 4. The need that delay of justice be not caused by parties who should reasonably use appeal instead of writ of error and the near approach of the end of the session creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended and this Act shall take effect from and after its passage, and it is so enacted.” Acts 1939, Ch. 2, p. 59, Vernon’s Annotated Civil Statutes, art. 1883a.'

The vote on the above Act in both Houses of the Legislature was sufficient to make the emergency clause effective. It was passed by the Senate on May 29, 1939, and by the House on May 31, 1939. It was filed with the Secretary of State on June 1, 1939, without the Governor’s signature. Although the Act by its own provisions was made effective on January 1, 1940, the Act itself became a law immediately upon its passage. United Employers Casualty Company v. Skinner et al., Tex.Civ.App., 141 S.W.2d 955.

In construing the effect of this Act upon litigation before January 1, 1940, in the Skinner case, supra, the Waco Court of Civil Appeals, speaking through Justice Alexander, said: “Under the holding of our Supreme Court in Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680, the Act became a law immediately upon its passage, so as to give notice to all who thereafter participated in the trial in the lower court that on and after January 1, 1940, they would not be entitled to review of their cases on appeal through writ of error. We think the Act, when fairly interpreted means that those who should participate in the trial-of their cases in the lower court after the Act became a law, that is June 1, 1939, would not be entitled to remove their cases to the court of appeals on or after January 1, 1940. While the Act says that such parties will not be entitled 'to review by the Court of Civil Appeals’ after said date, we do not think it was intended that the appellate court could not render a judgment therein after that date, but rather that the proceedings could not be removed to the appellate court after the date referred to.”

In the instant case the plaintiffs in error had the right of an appeal in the ordinary manner within the time allowed therefor, and, in addition thereto, under the holding of the Skinner case, supra, had more than three months in which to prosecute a writ of error under the law as it existed prior to January 1, 1940. It will be noted that after the date of the judgment there still remained 101 days of the year 1939 in which a writ of error might have been sued out. This the plaintiffs in error failed to do in the face of the fact that they were charged with knowledge of the expiration by law of such right on January 1, 1940. The Legislature in passing the Act allowed a period of seven months to intervene between its passage and its effective date. There must have been some good purpose for such period of grace. We think it is apparent that the intention of the Legislature in such action was to give ample notice to litigants of the change of procedure in this respect, and at the same time reserve to such litigants, in cases tried before the effective date of the Act, the right to pursue the remedy of the writ of error until January 1, 1940. It is our opinion, however, this period of grace also indicates that the Legislature did not intend that such remedy might be pursued after January 1, 1940, in cases tried prior to such date by litigants who participated therein either in person or by an attorney. We are fortified in this holding, we think, by the language contained in the emergency clause of the Act above set out.

The 1939 Act under consideration does not reduce the time allowed for the prosecution of the writ but completely abolishes the remedy in all cases wherein the aggrieved party participates in the trial in person or by his attorney. Therefore, the rule announced by the Supreme Court in Odum et al. v. Gardner, 86 Tex. 374, 25 S.W. 18, of computing ratios between the old arid the new law is not applicable to the present situation. The rule therein announced in computing the time allowed for the writ was that the time which had elapsed under the former law will be counted in the ratio it bears to the whole period and the time allowed under the new law will be computed on the basis of such ratio. That is, if under the old law two-thirds of the time had expired, one-third of the period prescribed by the new limitation would be further allowed. But the Act of 1939 does not prescribe a new period. It completely does away with the remedy where the litigant- participates in the trial in person or by an attorney, and under such circumstances there is no ratio to compute.

It is, therefore, our opinion that the plaintiffs in error have not perfected a writ of error to this court and that the motion of the defendant in error to dismiss the -appeal should be granted, and it is so ordered.


text:
    GILLETTE MOTOR TRANSPORT, Inc., v. KELLY.
    No. 2243.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1940.
    Rehearing Denied June 27, 1940.
    Geppert, Geppert & Victery, of Teague, for appellant.
    Williford, Williford & Bond, of Fair-field, for appellee.
   ALEXANDER, Justice.

This is a suit for damages for injuries to a mule alleged to have been struck by the defendant’s automobile truck. Verdict and judgment were for plaintiff, and defendant has appealed.

The only material question is the sufficiency of the evidence to show liability. The defendant failed to introduce any evidence in its behalf. We must therefore look exclusively to the plaintiff’s evidence to support the verdict. The evidence shows that plaintiff’s mule broke out of his pasture some time during the night and on the next morning was found beside the highway with his hind leg broken. A witness who lived near the highway testified that he heard an animal running south down the highway some time between the hours of two and four o’clock A. M. He heard a sound like an automobile had hit the animal. The automobile, or other vehicle, which was going in the same direction as the animal, backed up to the scene of the accident and then went on down the road. Another witness-testified that on the same day, between three and five o’clock A. M., defendant’s agent drove the defendant’s truck in to witness’ filling station, about 1½ miles south of the scene of the accident, and announced that he had hit a mule a short distance out on the highway and wanted to use the telephone. The right light, fender and radiator guard on the truck had been smashed in. The driver of the truck telephoned to defendant’s office at Dallas for a man to come out and repair the truck. The statements of the driver of the truck were made in the course of his employment, apparently within two or three minutes after- the accident, and were therefore admissible. The evidence above set out was sufficient to support the jury’s finding that the defendant’s truck had struck plaintiff’s mule. Other witnesses testified that they had found blood and other evidence on the ground, showing that the mule had been struck while it was on the shoulder of the road on the truck’s right-hand side of the road. The mule tracks showed that it had run along the shoulder of the road in the direction in which the truck was traveling for a distance of about ISO yards before being struck. There were tracks at the same place showing that the dual wheels of a truck had got off the'pavement onto the right-hand shoulder of the road at or near the scene of the accident. These circumstances, when viewed in the light of the failure of the defendant to introduce any evidence in its behalf, were sufficient to authorize the jury to infer that the defendant’s driver had negligently failed to keep a proper lookout for the mule. Glazer v. Woodward, Tex.Civ.App., 127 S.W.2d 938, par. 2. We think the evidence supports the verdict.

The judgment of the trial court is affirmed.


author: JOHNSON, Chief Justice.

text:
    LYLE v. LYLE.
    No. 5638.
    Court of Civil Appeals of Texas Texarkana.
    June 20, 1940.
    Tom N. Cope and Carney & Carney, all of Atlanta, for appellant.
    Robert F. Salmon, of Linden, and Cecil R. Glass, of Marlin, for appellee.
   JOHNSON, Chief Justice.

This suit was filed by appellee, Allie Lyle, praying for a divorce against her husband, E. L. Lyle, on ground of cruel treatment and in which suit she asked for the care and custody of their minor children, Mildred, a girl age nine, Loyd, a boy age seven, and Margie Ann, a girl age three. The defendant answered, and by cross-action asked that the decree of divorce be granted to him and that he be given the care and custody of the children. Trial of the cause was to the court without a jury. Among other facts, the court found that plaintiff was entitled to the divorce, and that: “ * * * the Court having heard the evidence as to surroundings and circumstances of each of such children and the financial circumstances, character, and fitness of their parents and their ability to contribute to the support of such children, and being of the opinion that the best interest of the said children will be served, if Mildred Lyle, the oldest child, be placed in the custody of E. L. Lyle, the Defendant, and that the other two children, namely, Loyd Lyle, a boy, and Margie Ann Lyle, the baby girl, be placed in the custody of Mrs. Allie Lyle,” * * *

Whereupon the court decreed that the marriage relationship existing between plaintiff and defendant be dissolved, and “That the present care, custody and control of Mildred Lyle, the oldest child of the plaintiff and the defendant, be granted to the defendant, E. L. Lyle; and that the present care, custody and control of the other two children, Loyd, a boy, and Margie Ann, a girl, be granted to the plaintiff, Mrs. Allie Lyle, each parent to have the right of reasonable visitation of said children.”

The defendant, E. L. Lyle, has appealed.

Appellant contends: (1) That the evidence is not sufficient to sustain the judgment awarding the divorce in favor of appellee; and (2) that the evidence is sufficient to have sustained a judgment for divorce in favor of appellant; and (3) that the evidence is insufficient to support the judgment awarding the present care and custody of the two younger children to the mother. We have carefully read the statement of facts and are unable to agree with appellant’s contention. Awarding the custody of a child is a matter largely addressed to the sound judgment of the trial court and will not be disturbed on appeal, unless it is so contrary to the great preponderance of the evidence as to show an abuse of discretion. Epstein v. Epstein, Tex.Civ.App., 84 S.W.2d 894.

The judgment of the trial court is affirmed.