text:
    SLAUGHTER et al. v. QUALLS.
    No. 5267.
    Court of Civil Appeals of Texas. Amarillo.
    March 10, 1941.
    Rehearing Denied April 7, 1941.

      Robert Howard, Geo. S. Berry, and Bradley & Wilson, all of Lubbock, and Kilgore & Rogers, of Wichita Falls, for appellants.
    G. E. Lockhart and W. R. Porter, both of Lubbock, and Carl Ratliff, of Levelland, for appellee.
   STOKES, Justice.

This suit in the nature of trespass to try title was filed on September 8, 1938, by appellee, H. B. Qualls, against the appellants, Sue Alice Slaughter and her husband, R. L. Slaughter, Jr., Sid W. Richardson, the Richardson Oils, Inc., the Great Southern Life Insurance Company, and Bob Slaughter, to recover the west one-half of tract No. 52 of the Bob Slaughter Block in Hockley County. By amended petition A. S. Goss, Federal Land Bank Commissioner, was made a party defendant, and Bob Slaughter was omitted. On April 1, 1940, appellee filed his third amended original petition upon which the case was tried and in which, in addition to the ordinary • allegations of trespass to try title, he alleged numerous other grounds upon which he contends he is entitled to recover the land from all of the 'defendants. Since there is no controversy concerning the pleadings we do not deem it necessary to detail the allegations.

The record reveals that on January 6, 1928, Bob Slaughter conveyed to appellee the tract of land in controversy and as part of the consideration therefor appellee executed six notes. The first five notes were payable out of the proceeds of one-third of the cotton to be raised on the land, and the sixth note, in the sum of $489.92, bearing 7% interest payable annually, was due ten years after date. A vendor’s lien was retained in the deed to secure the pay-, ment of the entire series of notes and as additional security of the sixth note, appellee executed a deed of trust on the land in which R. L. Slaughter, Jr., was named as trustee. On the 6th of May, 1931, Bob Slaughter assigned the $489.92 note to R. L. Slaughter, Jr., and on the 21st of January, 1932, R. L. Slaughter, Jr., assigned it to his wife, Sue Alice Slaughter. On October 28, 1933, R. L. Slaughter, Jr., executed and acknowledged an instrument in which he resigned as trustee, stating in the resignation that he was unable to act in such capacity and that he thereby refused to do so. A few days later Sue Alice Slaughter, joined by her husbgnd, R. L. Slaughter, Jr., by written instrument, appointed A. J. Richards as substitute trustee and, upon request of Sue Alice Slaughter, he advertised the land for sale at the courthouse door on the 5th of December, 1933. At this sale Sue Alice Slaughter became the purchaser and A. J. Richards, the substitute trustee, executed and delivered to her a trustee’s deed, in regular form, in which he purported to convey the land to her.

On December 8, 1933, the Slaughters conveyed the land to J. L. Stowers and as part of the consideration Stowers executed ten notes in the sum of $195.96 each, due one to ten years, respectively, and on the 1st of August, 1934, Stowers procured a loan from A. S- Goss, Federal Land Bank Commissioner, in the sum of $2700. This loan was made to take up and extend $1,-306.40 prior indebtedness on the land, $1,-184.22 of the series of vendor’s lien notes executed by .Stowers to Sue Alice Slaughter, and $209.38 delinquent taxes due on the land.

On November 21, 1934, Stowers conveyed the land back to Sue Alice Slaughter and as part of the consideration therefor Mrs. Slaughter assumed the payment of the $2,700 note which Stowers had executed-to the Land Bank Commissioner, and on the 1st of April, 1935, Mrs. Slaughter, joined by her husband, R. L. Slaughter, Jr., conveyed it to A. E. Coe, who likewise assumed the $2,700 note held by the Land Bank Commissioner, and on the 10th of April, 1937, Coe reconveyed it to Mrs. Slaughter.

On July 2, 1937, after the land had been reconveyed to her by A. E. Coe, Mrs. Slaughter, joined by her husband, R. L. Slaughter, Jr., executed an oil and gas lease on the land to appellant, S. W. Richardson, the lease to remain in force for a term of three years and as long thereafter as oil or gas could be produced from any wells drilled thereon, and on the 3rd of July, 1937, the Slaughters conveyed to Richardson one-fourth of the oil, gas and other minerals in the land. On August 20, 1938, Richardson conveyed to appellee, Richardson Oils, Inc., the oil and gas lease, reserving a one-fourth overriding royalty in any oil and gas that may be produced, and on the 22nd of August, 1938, Richardson executed a deed of trust to W. S. Home, trustee, in which he conveyed to' the trustee the overriding royalty interests reserved by him in the land here involved, together with a large number of other properties, to secure appellant, the Great Southern Life Insurance Company, in the payment of an indebtedness of $2,000,000.

After the above mentioned transactions had been completed and the deeds, oil and gas lease, deed of trust and assignments, involved therein, were all executed and placed of record in Hockley County, ap-pellee instituted this suit, in which he sought to recover from all of the appellants the land in controversy upon the ground, principally, that the foreclosure by A. J. Richards, substitute- trustee under the original deed of trust, was ineffective, and .the trustee’s deed executed by him to appellant, Sue Alice Slaughter, was void for a number of reasons, among them being that A. J. Richards was not properly appointed, as substitute trustee and that the sale was not, in fact, made by him but was made by Douglas Witherspoon who did not possess authority to make the sale.

The case was submitted to a jury upon special issues and upon the verdict returned by the jury in answer thereto the court, on the 2nd of April, 1940, entered judgment in favor of appellee against all of'the appellants, cancelling and holding for naught the trustee’s deed of A. J. Richards, substitute trustee, and all subsequent deeds, liens, oil leases, assignments and instruments by which the land or any interest therein' was conveyed, assigned or mortgaged, except the deed of trust and lien held by A. S. Goss, Federal Land Bank Commissioner, to secure the note for $2,700. Since appellee, in his pleadings, did not seek to cancel the lien of the Land Bank Commissioner and acknowledged the validity thereof, it will not be necessary to discuss that phase of the case.

At the close of the testimony appellants, filed and urged motions for judgment, and after the verdict was returned they presented their motions for judgment non obstante veredictp. These motions were overruled by the court and, after the judgment was entered, they presented their motions for a new trial, which were likewise-overruled, and they duly excepted and have-perfected an appeal to this court.

The ' record is voluminous , and a large number of assignments of error and propositions of law are presented in the brief,, but we do not deem it necessary to discuss them in detail. The real questions to be decided are, first, whether or not appel-lee was entitled to recover against,Sid W. Richardson, the Richardson Oils, Inc., and the Great Southern' Life Insurance Company and, secondly, whether or not he was ■entitled to recover against Sue Alice Slaughter and her husband, R. L. Slaughter, Jr. As we have said, all of the appellants presented to the court their ¿notions for an instructed verdict and also motions for judgment in their favor non obstante veredicto. These motions were overruled by the court and as we view the record no ■controversy is shown in the testimony concerning the controlling questions in the case.

The Richardson group of appellants, that is, Sid W. Richardson, the Richardson Oils, Inc., and the Great Southern Life Insurance Company, contend that appellee was not entitled to a judgment against them because each of them holds and claims title as an innocent purchaser and that under the evidence in' the case they are protected by the law which secures to them their respective interests in the land because they purchased the same for value and without notice of any of the defects or infirmities in their title which form the basis upon which appellee seeks. to recover the land. The basis of their title is the purported foreclosure sale by A. J. Richards, substitute trustee, and his trustee’s deed to Sue Alice Slaughter. The deed of trust contained the usual provision concerning the appointment of a substitute trustee in the event of the death of the original trustee •or his removal from Lubbock County, or his refusal, failure or inability for any reason, within ten days after request by the holder of the note secured thereby, to make the sale or perform the trusts imposed upon him by his appointment. The record contains an instrument duly signed and acknowledged by R. L. Slaughter, Jr., in which he recites his appointment as trustee and states that he is unable to act as such. It closes with a notice to Sue Alice Slaughter, the owner of the note secured by the deed of trust, that he is unable to act as trustee and refuses to do so. The resignation of the trustee bears date October 28, 1933, and on the 9th of November, 1933, Sue Alice Slaughter, joined by her husband, in writing, duly appointed A. J. Richards as substitute trustee. On the .5th of December, 1933, A. J. Richards as ■substitute trustee executed and delivered to Sue Alice Slaughter a trustee’s deed in due form in which he conveyed the land to her. In this substitute trustee’s deed A. J. Richards stated that appellee had made default in the payment of the interest due on the note for the years 1928, 1929, 1930, 1931 and 1932. He further stated that Sue Alice Slaughter had requested R. L. Slaughter, Jr., to sell the land under the deed of trust and he had refused to act as trustee or enforce the deed of trust and had resigned as such trustee and that Sue Alice Slaughter, the holder of the note, had appointed the grantor, A. J. Richards, as substitute trustee. The trustee’s deed recites all of the conditions provided in the deed of trust as being necessary to authorize A. J. Richards as substitute trustee to sell the land. It recites furthermore that he did sell the land in the manner provided by the deed of trust and that it had been purchased at the sale by Sue Alice Slaughter. After she purchased it at the Sale and received the substitute trustee’s deed, she executed the oil and gas lease to Sid W. Richardson and conveyed to him one-fourth of any oil and gas that may be in the land. Richardson thereafter executed the assignment of the oil lease to Richardson Oils, Inc., and the deed of trust to W. S. Horne, trustee, to secure the Great Southern Life Insurance Company in the payment of the indebtedness therein mentioned. There is nothing in the record which indicates that either Richardson, the Richardson Oils, Inc., or the Great Southern Life Insurance Company had any knowledge of the actual manner in which A. J. Richards conducted the trustee’s sale and, the proceedings in that respect being shown in the trustee’s deed to be regular in every respect, it must follow that the Richardson group of appellants are protected as innocent purchasers unless they aré defeated by the contentions of appellee pertaining to the appointment of A. J. Richards as substitute trustee and the manner in which the sale was actually conducted. Randolph v. Citizens Nat. Bank, Tex.Civ.App., 141 S.W.2d 1030.

The deed of trust provides that in case of the death of R. L. Slaughter, Jr., trustee, or of his removal from Lubbock County or his refusal, failure or inability for any reason “within ten days after such request by the holder or holders of said note * * * to make s’aid sale or to perform said trust”, then the legal holder or holders of the note may appoint in writing a substitute trustee. Appellee contends that the Richardson group of appellants cannot prevail under the doctrine of innocent purchasers because the record does not show that the refusal or failure of R. L. Slaughter, Jr., took place, or happened, within ten days after he had been requested to make the sale by the holder of the note He contends that, appellants not having shown that such failure or refusal took place within the ten days specified in the deed of trust, they were charged with notice that Slaughter’s refusal to make the sale may not have taken place within ten days after he had been so requested, and that, therefore, they must take notice of any Regularities in the manner in which he conducted the sale. We cannot agree with appellee in this contention. The real basis for the appointment of a substitute trustee is the refusal, failure or inability of the original trustee to make the sale and, granting that the language contained in the deed of trust is subject to the construction placed upon it by appellee, the recital in the trustee’s deed to the effect that the trustee had been requested to make the sale carries with it the idea that such request had been made in accordance with the provisions of the deed of trust. The courts will not indulge the presumption that a refusal to act as trustee was made without a proper request to act having been made. On the contrary they will indulge the presumption that the request was properly made where the record shows, as it docs in this case, that the request was actually made. McCollum v. Jones, Tex.Civ.App., 141 S.W. 1030; Wiener v. Zweib, Tex.Civ.App, 128 S.W. 699.

There being nothing in the record to show that Sid W. Richardson, the Richardson Oils, Inc, or the Great Southern Life Insurance Company had knowledge, of any infirmaties or irregularities in the substitute trustee’s sale, and the r esignation of the original trustee, the appointment of the substitute trustee and the substitute trustee’s deed being regular in form and complying in every detail with the provisions of the deed of trust, and showing on their faces that each and every condition, even to the minutest detail, which had been laid down by appellee in the deed of trust had been observed, they were warranted in assuming that Sue Alice Slaughter had procured at the trustee’s sale the full title owned by appellee in the land and in our opinion the court erred in refusing to give to the jury the peremptory instruction in their favor.

The Slaughter group of appellants, that is, Sue Alice Slaughter and her husband, R. L. Slaughter, Jr, appear in an entirely different light, however, from that of the Richardson group and, in our opinion, ap-pellee was entitled to a judgment against them. While the trustee’s deed was executed by A. J. Richards, the duly appointed substitute trustee, yet the testimony shows and the jury found that as a matter of fact he did not make the sale but the sale was actually made by Douglas Witherspoon who had no authority whatever to act in any capacity with reference to the sale. Richards was present when the sale was opened by Douglas Witherspoon, but very soon after Witherspoon began to read the notice of sale Richards left the place where the sale was being conducted and did not return during the entire time the proceedings which culminated in the sale were in progress. Witherspoon “cried off” the sale, received the bid offered, accepted the bid, and declared the property sold tO' Sue Alice Slaughter. The record shows that several other similar sales were made at the same time and that all of them were conducted by Witherspoon acting at the request of A. J. Richards, the substitute trustee.

The law has been settled by a long line of decisions of the courts of this state that such sales must be conducted by the trustee in person. He cannot delegate to others the authority conferred upon him by the debtor in the deed of trust. The details with reference to his conduct at the sale which are set forth in the instrument by which he is appointed must be strictly observed. His duty to execute in person the powers granted to him is not discretionary and the instructions given to him by the instrument under which he is to act are not directory but mandatory in their nature. Fuller v. O’Neal, 69 Tex. 349, 6 S.W. 181, 5 Am.St.Rep. 59; Estelle v. Hart, Tex.Com.App, 55 S.W.2d 510; Bemis v. Williams, 32 Tex.Civ.App. 393, 74 S.W. 332; Randolph v. Citizens Nat. Bank, Tex.Civ.App, 141 S.W.2d 1030. It is not a case of Richards, the duly appointed substitute trustee, being in charge of the sale and merely requesting Douglas Witherspoon to assist him but, as we have already shown, the entire sale was turned over to Witherspoon who conducted it in all of its details, exercising every duty and performing every act in connection with it that was conferred upon Richards by the deed of trust and his appointment as substitute- trustee. It must he concluded, therefore, that the sale of appellee’s land, made, as it was, by one who possessed no authority to make it, was void, at least in so far as appellee and Mrs. Slaughter were concerned and she, therefore, acquired no title by becoming the purchaser at the sale and receiving the trustee’s deed from Richards.

The Slaughter group of appellants contend that even if the trustee’s sale was void and the deed executed to , Mrs. Slaughter by A. J. Richards, the substitute trustee, was ineffective to pass title, still she was entitled to a judgment against appellee in this case because she occupies the position of an innocent purchaser under her deed from Stowers. They base this assertion upon the ground that when she sold the land to Stowers, after she purchased it at the trustee’s sale, Stowers waS an innocent purchaser and knew nothing of the manner in which the trustee’s sale was conducted. They contend, therefore, that Stowers being an innocent purchaser, Mrs. Slaughter succeeded to all of the rights which were possessed by Stowers and that, regardless of the fact that she is charged with knowledge of the ineffectiveness of the trustee’s sale and the deed which she received from the trustee, she succeeded to the rights of Stowers and stepped into his shoes as an innocent purchaser. The general rule is well established in this and many other jurisdictions that if a second purchaser who has notice acquires title to land from a former purchaser who was without notice and in all respects a bona fide purchaser, the second purchaser succeeds to the rights of the former. purchaser and is protected as he would have been. But to this general rule there is a well defined and established exception to the effect that if title to land is held by one who is affected with notice of infirmities conveys it to a bona fide purchaser and afterwards takes -a reconveyance to himself of the same title, all the equities against him are revived and attach to the title in his hands. The reason for the exception is that the doctrine of innocent purchaser requires good faith as well as the payment of a ⅝ valuable consideration and the absence of notice. Pomeroy’s Equity Jur., 4th Ed.,' Vol. 2, par. 754, p. 1546; Walling v. Rose, Tex.Civ.App., 2 S.W.2d 352; Rogers v. Lindsey, 13 How. 441, 54 U.S. 441, 14 L.Ed. 215.

Mrs. Slaughter purchased the land at the foreclosure sale and, therefore, is charged with notice of the acts and conduct of the substitute trustee, as well as those of Douglas Witherspoon which rendered the pretended sale ineffective and void. It is no doubt true that Stowers procured a good title to the land as an innocent purchaser for value and without notice of the fraudulent acts which rendered the trustee’s sale void, but when he conveyed the land back to Mrs. Slaughter, instead of'investing her with the benefits which he enjoyed as an innocent purchaser, he merely placed the title back where he found it and Mrs. Slaughter thereafter stood bound by the effects of the violation of the trust. She, therefore, cannot hold as an innocent purchaser by virtue of the fact that Stowers was such and the same must be said, of course, as to the transaction in which she later conveyed the land to A. E. Coe and Coe reconveyed it to her.

The Slaughter 'group of appellants further contend that, even if the trustee’s sale was void and ineffective, the facts are that, under the - deed which she procured from the substitute trustee, she took possession of the land and sold it to Stowers and again to A. E. Coe, and that these acts on her part were tantamount to a rescission of the sale which had originally been made by Bob Slaughter to ap-pellee in which the vendor’s lien note held by her was created and in which a vendor’s lien was retained to secure the same. It is true that under some circumstances the holder of a vendor’s lien may rescind the sale without notice to the debtor. Thompson v. Robinson, 93 Tex. 165, 54 S.W. 243, 77 Am.St.Rep. 843; Gardener v. Griffith et al., 93 Tex. 355, 55 S.W. 314; McPherson v. Johnson et al., 69 Tex. 484, 6 S.W. 798; Lewis v. Powell, Tex.Civ.App., 205 S.W. 737. And it has been held that a stranger who purchases land at a judicial sale which is made under a void judgment does not become invested with the title to the land, but, by furnishing the money with which the vendor’s lien notes are satisfied, he replaces the original holder of the notes and succeeds to the same rights theretofore held by the latter in regard to the right of rescission. It is said, therefore, that, when he sells the land to another, he thereby exercises the right of rescission as the owner of the superior title and conveys good title to his vendee. Williams v. Tooke, Tex.Civ.App., 116 S.W.2d 1114. Appellants contend that this was the effect of Mrs. Slaughter’s sale to Stowers and also of Stowers’ sale back to her. It is obvious, we think, that Stowers, however, could not occupy the position of a holder of the superior title because Mrs. Slaughter did not attempt to convey to him the superior title to the land represented by the vendor’s lien nor did he pay the money which discharged the debt under the foreclosure sale. Mrs. Slaughter cannot maintain her contention that if the foreclosure sale was void, then her act in conveying the land to Stowers in effect rescinded the original sale made to appellee by Bob Slaughter because, by .having the land advertised for sale and having it sold by the substitute trustee and buying it in at the sale, she elected to affirm the title in appel-lee and she could not, without notice to him, at the same time and by virtue of the same act rescind the sale and repossess herself of the land. Walls v. Cruse, Tex.Com.App., 235 S.W. 199; Phillips v. Herndon, 78 Tex. 378, 14 S.W. 857, 22 Am.St. Rep. 59; Dillingham v. Kerr, Tex.Civ.App., 139 S.W. 911; Tom v. Wollhoefer, 61 Tex. 277; Breeding v. Farm & Home Sav. & Loan Ass’n, Tex.Civ.App., 90 S.W. 2d 272, reversed on other grounds, Farm & Home Sav. & Loan Ass’n v. Breeding, 131 Tex. 518, 115 S.W.2d 615; Patterson v. Shell Petroleum Corp., Tex.Civ.App., 143 S.W.2d 208; Gandy v. Cameron State Bank, Tex.Civ.App., 2 S.W.2d 971; First Trust Joint Stock Land Bank v. Hayes, Tex.Civ.App., 90 S.W.2d 331.

Mrs. Slaughter having pursued her rights under the deed of trust, appointed the substitute trustee and caused him to advertise the land for sale, and having attempted to purchase the same at the sale and accepted a deed of conveyance from the substitute trustee, and thereafter having conveyed the land to Stowers, and pursued this entire course under the rights extended to her by the deed of trust, elected to affirm the original sale by Bob Slaughter to appellee and enforce the collection of the note. Roberts’ Heirs v. Lovejoy, 60 Tex. 253. . Her remedy thus pursued having become ineffective by the unwarranted and illegal manner in which the substitute trustee attempted to make the sale, her election was not irrevocable and she, no doubt, had the right to abandon the whole course theretofore pursued by her; but she did not do so. Having once elected to affirm the sale and enforce the payment of the purchase money note by sale under the power in the deed of trust, she could not thereafter change her election, disaffirm the sale, and rescind under the original vendor’s lien without giving to appellee notice of her intention to do so and a reasonable opportunity to comply with his contract by discharging the note and thereby relieving his land of the vendor’s lien. Chief Justice Willie, speaking for the Supreme Court and discussing this identical question in the early case of Tom v. Wollhoefer, supra, said: “The vendor’s remedy by rescission is a harsh and stringent one, especially when a part of the consideration has been paid, and it is sought to forfeit the payment and recover or resell the land. Hence slight circumstances are seized upon to protect the vendee against the forfeiture of the amount paid, or compel the vendor to seek redress by a suit for the balance due upon the purchase money. He must not delay too long in insisting upon payment of the •money as it falls due, or he will be considered as having waived the default. See Scarborough v. Arrant, supra [25 Tex. 129]. He must not treat the contract as' still subsisting, or do any act which may be construed into its affirmance.”.

There is no evidence in the record before us of any notice to appellee of a purpose on the part of Mrs. Slaughter to rescind the sale and claim the title as assignee of the vendor’s lien. The proposition is well established by the above cited authorities and many others that a vendor or his assignee, having elected to affirm an executory sale of land in which a vendor’s lien is retained, and enforce payment of the purchase money note, cannot thereafter change his election so to do and dis-affirm or rescind the sale without first giving notice to the debtor of his purpose to do so except under circumstances of the nature of those detailed in Thompson v. Robinson and other cases, supra, none of which exist in this case.

Appellants make the further contention that appellee was not entitled to recover of the Slaughter group of appellants because his suit was barred by the four years statute of limitation. They base this contention upon the assertion that the suit was essentially one to cancel the trustee’s deed, and the deeds executed by the Slaughters to Stowers and Coe, and the oil and gas lease and mineral deed executed by them to Richardson, and the deed of trust executed by Richardson to W. S. Horne, trustee for the Great Southern Life Insurance Company, and, the suit not having been instituted within four years from the date such documents were executed, it was barred by the provisions of Art. SS29, R.C.S., 1925. We find no merit in this contention. What we have said shows clearly that the purported sale under the deed of .trust was void and did not, as a matter of law, convey any title whatever. It is only by virtue of the generous extension of authority to the beneficiary and the original trustee and substitute trustee in the deed of trust and the unqualified statements in connection therewith that were made by the substitute trustee in his deed to Mrs. Slaughter that the Richardson group of appellants are protected in their holdings.- Mrs. Slaughter is not entitled to that protection, hence the trustee’s deed conveyed to her no title whatever. Appellee, therefore, was not divested of the title. It still remained in him regardless of the purported conveyance by the substitute trustee and his suit was for the land. He was therefore not barred under the four years statute of limitation and -appellants’ contention in this respect will be overruled. Wilson v. Armstrong, Tex.Civ.App., 236 S.W. 755; Boone v. Miller, 86 Tex. 74, 23 S.W. 574; Bowman v. Oakley, Tex.Civ.App., 212 S.W. 549; Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815.

After carefully considering the entire record and all of the contentions made by all parties to the appeal, we are impelled to the conclusion that, as to the appellants, Sid W. Richardson, the Richardson Oils, Inc., and the Great Southern Life Insurance Company, appellee was not entitled to recover, and the learned trial judge erred in overruling their motions for a peremptory instruction. What we have said demonstrates, we think, that appellee was entitled to recover of Sue Alice Slaughter and her husband, R. L. Slaughter, Jr., such title to the land as remained in them subject, however, to any amount that may still be due and unpaid on the note in the sum of $489.92, secured by the deed of trust, and subject, also, to the rights and interests of the Richardson group of appellants and the deed of trust lien held by the Federal Land Bank Commissioner. The jury found, upon disputed questions of fact, that on December 5, 1933, when the substitute trustee purported to sell the land involved, appellee was not in default in the payment of any interest due on the vendor’s lien notes executed by him to Bob Slaughter. This is equivalent to a finding that the interest to that date on the series of vendor’s lien notes had been paid.

The jury further found that the rental value of the land was $150 for each year from 1933 to 1940, inclusive. Appellee was entitled to recover the reasonable rental value of the premises for th.e two years preceding September 8, 1938, the date the suit was filed. Art. 7389, R.C.S.1925; Webb v. Martin, Tex.Civ. App., 39 S.W.2d 117. He was not, however, entitled to recover the rental value during the time the land was in the possession of Stowers and Coe. McClanahan v. Stephens, 67 Tex. 354, 355, 3 S.W. 312; Kirby v. Hayden, Tex.Civ.App., 125 S.W. 993; Collier v. William Cameron & Co., 55 Tex.Civ.App. 153, 117 S.W. 915; Caughie v. Brown, 88 Minn. 469, 93 N.W. 656. The record shows that A. E. Coe conveyed the land back to Sue Alice Slaughter on the 10th of April, 1937. Inasmuch as the special issues relating to the rental value of the land required the jury to find the value for each year as an entirety or unit, and the dates when the rental was due are not shown, and it is not shown that Mrs. Slaughter actually collected the rental for the year 1937, the record before us does not warrant a judgment in appellee’s favor for the rental value for the year 1937. The judgment of the court below will, therefore, be reversed and judgment here rendered that, as to the Richardson group of appellants, appellee take nothing by his suit;, but that he recover the title and possession of the land as against Sue Alice Slaughter and her husband, R. L. Slaughter, Jr., together with its rental value of $150 per year for the years 1938, 1939 and 1940, subject, however, to the balance due on the original series of six vendor’s lien notes executed by appellee to Bob Slaughter, with interest thereon at the rate of 7% per'annum, from December 5, 1933, and subject also to the vendor’s lien and deed of trust liens given by appellee to secure the same.


source: Caselaw Access Project

author: . SUTTON, Justice.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. PAGE.
    No. 4054.
    Court of Civil Appeals of Texas. El Paso.
    March 6, 1941.
    Rehearing Denied March 27, 1941.
    John C. North, of Corpus Christi, and Baker, Botts, Andrews & Wharton, of Plouston, for appellant.
    White, Taylor & Gardner, of Austin, and W. B. Moss, of Sinton, for appellee.
   . SUTTON, Justice.

This is an appeal from the District Court of San Patricio County. The parties will be designated as they were in the trial court.

The plaintiff, Plolland Page, sued the defendant, Texas & New Orleans Railroad Company, to recover divers sums of alleged damage, actual and exemplary. His petition is lengthy, and it will serve no purpose to state it here, since the case was submitted, without objection by the plaintiff, on one item only of actual damage and exemplary damage, and judgment rendered, likewise without exception on the part of plaintiff, for two items of actual and exemplary damages, as will appear herein.

The defendant answered with a general demurrer; thirty-two numbered special exceptions, some of which were subdivided; a general denial and a detailed special answer. The record shows no action on the demurrer and special exceptions.

Plaintiff alleged that on February 12, 1938, prior thereto and subsequent thereto, he was engaged in constructing certain lateral roads, aggregating some 60 miles, in San Patricio County under a contract with the Commissioners’ Court of said county; that on said 12th day of February, 1938, the defendant’s auditor wrote the County Judge requesting that the sum of $2,907 be withheld on the final settlement with Page, which sum the company claimed to be due it as demurrage charges; that it had been withheld from February 12, 1938, to October 29, 1938, the date it was received from the county, and that he was entitled to recover his interest thereon. He further claimed interest on the sum of $428.88 due as a refund on a deposit made with the defendant to secure the construction of a switch to provide additional unloading facilities for the plaintiff. The plaintiff notified the defendant he no longer needed the switch constructed for him on March 31, 1938, and requested the return of the refund in the amount of $428.88. It was not paid until October 30, 1938.

The plaintiff charged the defendant with malice and ill will, and alleged it had been actuated by such malice and ill will in its dealings with him on divers occasions, including the filing of the claim February 12, 1938, with San Patricio County, and the withholding of the voucher for $428.88, and sought recovery of exemplary damages in the sum of $30,000.

The court submitted the case on four special issues requiring the jury to find if the defendant had or not caused the county to withold the sum of $2,907 by writing the letter of February 12, 1938; and, if so, for what time it was withheld; if the defendant acted with malice and ill will, and, if so, the amount of exemplary damages. The jury answered the first issue “yes,” and fixed the time from February 12, 1938, to October 29, 1938; that it was actuated by malice and fixed the exemplary damage at $1,000. The court rendered judgment for the $1,000 exemplary damages; $122.-95 as six per cent interest on $2,907 from February 12, 1938 to October 29, 1938; and $9.98 as six per cent on $428.88, presumably on the theory there is no dispute as to the length of time the same was withheld. From this judgment the defendant perfected this appeal.

The defendant’s contention is the judgment should be reversed and rendered because there is no evidence or law to support it, and puts that contention on six grounds, which are, briefly: (a) There is no eyidence or jury finding that Page was injured or damaged by reason of the county holding up with payment of $2,907; (b) that the letter requested the county to withhold the sum claimed to be due it from Page’s final settlement, and there is no evidence when such final settlement was had; (c) there was no legal duty on the part of the county to withhold any sum and the' request was to withhold it fro$i the final settlement; that by a judgment rendered in Travis County it recovered $950 due it as a part of the demurrage charges claimed and it was not, therefore, liable for interest on the full amount of $2,907; (d) that no issue was submitted to the jury for interest on the $428.88; (e) that the' amount of interest due was too nominal to support any amount of exemplary damages ; and (f) that there is no evidence of malice.

The letter of February 12, 1938, read, in part, as follows (after reciting the amount due of $2,907):

“I have transmitted these bills to Mr. Page at Austin, Texas, by letter and repeated efforts to collect have been unsuccessful. We had our Austin, Texas, representative call on Mr. Page, and he flatly refuses settlement, not that he questions accuracy of the charges, but simply because he feels that when he pays the freight charges he is through with the transaction.
“ * * * I am, therefore, bringing the matter to your attention and will request that you accept this letter as a claim against San Patricio County for amount involved in order that necessary action may be taken to withhold amount of these charges from final settlement to Mr. Page for the paving work.”

Mr. Page took the position he had not refused to pay the charges on the grounds asserted in the letter, but had questioned the accuracy of them and that the Austin representative of the defendant had told him the matter would be taken up with the auditor’s office in an effort to straighten it out and nothing would be done until he had further notice. He said the next thing he heard from it he was served with citation in a suit in Travis County wherein suit had been brought to ^collect the demur-rage in the sum of $2,907. The suit was tried and the defendant company recovered against Page in the sum of $950, which was paid by Page. The company sued for interest on several it'ems of demurrage but recovered none.

Because of the disposition of the case here, we need not discuss the question of exemplary damages further than to say we are of the opinion the evidence was sufficient to support the finding of the jury that the defendant was prompted by malice in filing the claim with San Patricio County-

The defendant in its brief cites no authorities on any of the issues presented except Texas Jurisprudence on the issue of exemplary damages.

The evidence is undisputed here that the county withheld the sum of $2,907, and likewise the $428.88.for some period of time after it was due. It goes without saying that money has a value to one entitled to its receipt, and in the absence of a contract the law fixes the rate at six per cent. We think the record here supports the finding of the trial court on the amount due for the withholding of the $428.88, but it will not for the interest recovered on the $2,907. The plaintiff alleged that sum was withheld from February 12, 1938 to October 29, 1938. The only proof we are able to find in the record as to how long it was withheld is that of Mr. Page himself when he testified the County Judge showed him the - letter of February 12th, and that the money was withheld from the next check due him. This certainly meant so-me date subsequent to the date of the letter. What that date was and when his next check was due are not supplied. Tile judgment for exemplary damages is dependent upon the judgment for actual damages, and we think requires that the plaintiff be held to a greater degree of exactness than might otherwise be required. We hold, therefore, the proof is insufficient here to support the finding and judgment for the amount of $122.95 as interest due on $2,907 from February 12, 1938 to October 29, 1938, and that the trial court was in error in so rendering the judgment.

We think the position that the county was under no legal obligation to withhold any sum of money, and the fact the defendant requested it to withhold from the final payment only untenable. The defendant followed up the letter of February 12, 1938 with another on the same subject February 23, 1938, asking for an acknowledgment of the former letter and for what action had been taken. The evidence supports the jury finding that the county held up the payment of the money due Page because of the letter and claim. It is the fact the defendant caused the money to be withheld and not the manner of the withholding by the county that is material. It cannot escape on • the theory the county was under no legal obligation, to withhold and that it should have disregarded the request and insistence of the defendant, nor that it withheld out of current rather than final estimates.

What we have said disposes of the several questions raised.

For the error pointed out the judgment of the trial court will be reversed and the case remanded, and it is so ordered.


author: BROWN, Justice.

text:
    UNIVERSAL LIFE INS. CO. v. WALLACE.
    No. 14181.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1941.
    Rehearing Denied April 11, 1941.

      W. J.* Durham, of Sherman; for appellant.
    Martin & Martin, of Wichita Falls, for appellee.
   BROWN, Justice.

The appellee, Annie Wallace, was the beneficiary in a policy of life insurance that was issued by appellant, Universal Life Insurance Company, on the life of one Will Bell, appellee being a niece of the insured.

Will Bell left the City of Wichita Falls, Texas, some time after the policy was written, in the year 1932, and before October, 1933, when he was killed in the town of Altus, Oklahoma, and was buried under the name of Henry Wilson.

Appellee continued to pay the premiums due on the policy of insurance until s.ome time after April, 1939, when, after efforts on her part to locate the insured, she learned he was killed in October, 1933, at Altus, Oklahoma, and was buried under a different name, as stated above.

Appellee claims that she endeavored to obtain blanks from the agent of appellant so that she could make proof of the death of the insured; that these were promised but not given to her, and she employed attorneys who attended to such matter, and not having been paid the amount of the policy, to-wit, $240, she brought suibin November, 1939.

In her pleading she alleges why she did not and could not sooner furnish .proof of death and make claim under the policy, and alleged that she continued to pay and the Insurance Company continued to accept the premiums due upon the policy until she learned, after much inquiry and effort, that her uncle was dead. She alleged that she is an inexperienced negro woman.

In the alternative she alleged that, if the person who was killed in Altus, Oklahoma, was in fact not the insured, then she was entitled to recover under the policy because the insured had been missing and unaccounted for, for more than seven (7) years.

She prayed for the amount payable on the face of the contract, together with the sum of $72, premiums paid by her and accepted by the Insurance Coihpany after Bell’s death, and for twelve per cent (12%) damages and attorney’s fees, and for general and special relief, in law and in equity.

Strange to say, the appellant — Insurance Company — pleaded a general demurrer, two special exceptions — one being leveled at certain allegations in the petition, and the other raising the issue of limitation of four (4) years- — and a general denial of each and every allegation in the petition and a demand for strict proof of same, and specially pleaded that the cause of action was barred by the limitation period of four years.

We, observe here that the Insurance Company neither tendered nor offered to repay the premiums it had collected for all these years after Bell’s death- — which premiums were paid by the beneficiary and received by the insurer under a mutual mistake of fact, to-wit, that the insured was still alive.

The cause was tried to a jury, and on special issues the jury found that Bell was killed at Altus, Oklahoma, October 29th, 1933; that plaintiff, by the use of ordinary diligence, could not have learned of Bell’s death prior to October 29⅛, 1937; and could not have inade proof of death prior to such last named date. The other findings are not material to the conclusions reached by us.

No objections were made to the court’s charge. The insurer moved for an instructed verdict, on the theory of her claim being barred by the four years statute of limitations; and moved for judgment notwithstanding the verdict.

The trial court rendered judgment for the plaintiff in the sum of $312, being $240, the face of the policy, and $72 in premiums paid after the insured’s death.

The defendant made a motion for a new trial, and upon its being overruled, gave notice o'f appeal.

The appellant brings forward a brief in which the assignments of, error are attacked by appellee, and with merit.

The first assignment urges that, “the trial court erred in rendering judgment for the plaintiff for the reason that the same is without any evidence to support judgment.” The objection to consideration of this assignment of error is well taken. 3 Tex. Juri. par. 600, page 860; same volume, par. 607, pages 869 to 872, and many cases cited.

The second asserts that, “the judgment of the trial court is not supported by the evidence and pleadings, and is therefore erroneous.” This assignment of error cannot be considered. See authorities cited.

The third assignment of error asserts : “Because the verdict of the jury and the charge of the court, save and except as to Special Issue 1, is not supported by any pleading, and the trial court committed foundamental (fundamental) error in submitting special issues #2 and #3 in the court’s main charge to the jury for the reason that no pleadings were on file raising such issues, and no evidence was submitted to support such issue, and the judgment of the court is grounded upon such issue, and the same not having been raised by the pleadings.” There are several reasons why this assignment of error cannot be considered.

It is distinctly multifarious; it is such as is condemned by the authorities we have cited, being too general; and it does not point out fundamental error.

No objection was made to the charge. All objections were therefore waived, and the appellant is confined to assignments of error attacking the findings of the jury as to each separate issue attacked on the theory that each finding has no support in the evidence. This was not done.

The fourth assignment of error complains because the trial court refused to give the defendant an instructed verdict, on the theory that the plaintiff’s cause of action was barred by the statute of limitations of four years. Art. 5527, Vernon’s Rev. Civil Statutes. There is no merit in the contention, under the facts of this case.

The contract specifically provides^that the beneficiary will be paid the benefits provided for “upon receipt of proofs of death of the insured made upon forms furnished by the company in the manner and to the extent required by the company; and upon surrender of the policy and the premium receipt book”, and the contract further provides that when these prerequisites have been complied with, “all the contents of proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company”, and further provides that the beneficiary may not bring suit on the, contract until sixty days after these prerequisites have been complied with.

Lile v. Sovereign Camp, W.O.W.,Tex. Civ.App., 100 S.W.2d 1033, in which a writ of error was dismissed, is squarely in point here. The Supreme Court had potential jurisdiction of the Lile case and we follow the. holding of the Court of Civil Appeals for the Fifth District.

The fifth assignment of error complaining of the refusal of the trial court to grant appellant’s motion for judgment notwithstanding the verdict is likewise overruled.

The sixth assignment of error complains of argument of plaintiff’s counsel. The argument, which is found in the motion for a new trial, but which does not appear in any bill of exceptions, is: “The defendant has interposed the plea of limitation to defeat this claim; the defendant knows that this poor woman used all the diligence that a prudent person would have used. They are trying to get you to say that she didn’t use such diligence under special issues #2 and #3, that was done for the purpose of defeating this claim and they know it.”

Error predicated upon the argument of counsel must be presented by a bill of exceptions. None appears in the record and there is nothing for us to review.

But the assignment of error discloses on its face that there is no merit in it. It complains at the failure of the trial court to grant appellant’s motion for a mistrial because of the argument quoted, and it asserts that “the injury done by such argument was of such a nature that an instruction by the court did not ciM'eithe error, etc.” (Italics ours).

We differ with appellant. We believe there is no error in the argument, and if there is error, we further believe that it could be cured by proper action in the trial court.

Finding no error, the judgment is affirmed.


author: SUTTON, Justice.

text:
    PAYANT v. CORPUS CHRISTI PLAZA HOTEL CO.
    No. 4043.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied March 27, 1941.
    Tuohy & Crager, of Fort Worth, for appellant.
    Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for appellee.
   SUTTON, Justice.

This is an appeal from the 28th District Court of Nueces County. The parties will here be designated as in the trial court.

' The plaintiff, Edessa Payant, brought suit against the defendant, Corpus Christi Plaza Hotel Company, to recover damages in the total sum of $10,589.50, for personal injuries alleged to have been sustained by her and hospital, doctor and medical bills. The trial was to a jury, and at the conclusion of the plaintiffs testimony both parties closed, and, the court instructed a verdict and rendered judgment for the defendant. From that judgment the plaintiff has perfected this appeal.

The plaintiff alleged that she was a trained nurse, and that the nurses of Texas held, at the Plaza Hotel in Corpus Christi, on or about April 20, 1939, their annual convention, and that she was a guest at the Plaza Hotel on such occasion. She further alleged the defendant owned and operated the Plaza Plotel in Corpus Christi, and as such owner and operator was in charge of the .building and operation of the passenger elevators therein. She further alleged that as a part of the entertainment offered by "the public and the defendant hotel company, on the evening of April 20, 1939, the nurses were entertained with a banquet in a room situated on top of defendant’s hotel, called “The Deck”; that following the banquet she and a large number of other people boarded one of the defendant’s passenger elevators for the purpose of descending from The Deck; that the elevator became stalled or stuck between the floors of the hotel, and that the elevator operator, alleged to be an agent and employee of defendant company, opened the elevator door and placed a quarter or half round table against the opening and invited and instructed the passengers to unload from the elevator by the use of this table. She alleged the passengers in the elevator were required to virtually sit down on the floor of the - elevator and slide to the top of the table and then,jump to the floor, and in doing so that she fell and sustained serious injuries to her right leg and knee. She alleged the company owed her and the other guests at its hotel á very high degree of care to provide her with good and safe elevators and elevator service; that the defendant’s furnishing of the elevator that stalled and stuck for reasons' unknown to her, the opening of the elevator door, the placing of the table in front of the door, instructing her and other passengers to alight therefrom, and requiring her and others to jump from the table provided by the defendant, all constituted separate acts of negligence.

The defendant answered with a general demurrer, a general denial, and a special answer to the effect that it was not guilty cSf any negligence or responsible for the injuries sustained by the plaintiff, and “said injuries were proximately caused by various acts of negligence committed by the plaintiff, and which said contributory negligence upon the part of the plaintiff is now specially pleaded by this defendant against the right of the plaintiff herein to recover.”

Plaintiff in her brief has two assignments of error, which are: (1) The court erred in instructing the jury to return a verdict for defendant; (2) the court erred in rendering judgment against plaintiff upon such instructed verdict.

Under these assignments are asserted a number of propositions.

The defendant in its brief answers the plaintiff’s assignments and propositions with four counter propositions. The first of these, to the effect there is no evidence to show that the defendant had anything to do with the ownership and operation of the Plaza Hotel and its elevators, has given us considerable concern. There is no direct proof in the record of the ownership and operation of -the hotel by the defendant. Direct proof is not necessary, but such facts may be proved, as any other fact, by circumstantial evidence. When the lack of ownership and operation is not specifically asserted as a defense, and a general denial only is interposed, under the circumstances in this case very slight evidence and proof has been held to be sufficient to establish such facts. El Paso Electric Ry. Co. v. Terrazas, Tex.Civ.App., 208 S.W. 387; Dallas Ry. Co. v. Warlick et al., Tex.Civ.App., 268 S.W. 512 (O’Keefe v. United Rys. Co., 124 Mo. App. 613, 101 S.W. 1144, cited and quoted from). The ownership and operation of the hotel are facts peculiarly within the knowledge of the defendant. The Corpus Christi Plaza Hotel Company was sued and served as the defendant in this case; its attorneys answered for it as such and represented it throughout the trial. The third paragraph of its answer reads as follows: “Further answering said petition of plaintiff herein, if further answer be required, this defendant specially denies that it, or any of its agents, servants or employees were guilty of any act of negligence whatsoever proximately causing the accident described in plaintiff’s petition, or any of the injuries claimed to have been received by the plaintiff, and it further respectfully shows unto the court that if it be true that the plaintiff was injured in the manner described in her petition in this cause that still and nevertheless said accident and her said injuries were proximately caused by various acts of negligence committed by the plaintiff, and which said contributory negligence upon the part of the plaintiff is now specially plead by this defendant against the right of the plaintiff herein to recover.”

We think defendant’s answer may be taken as an admission that it is such a corporation and company. It pleads an absence of negligence on its part, and that if it be true the plaintiff was injured in the manner described, the same was caused by various acts of negligence on her part, and specially pleaded such by and on behalf of the defendant against her right to recover. It is undisputed that the name of the defendant is the Corpus Christi Plaza Hotel Company. The proof shows there is a Plaza Hotel in Corpus Christi operated by a company; that plaintiff was injured while a guest and being transported in an elevator at the Plaza Hotel; that the only agent or employee about the elevator when the accident occurred was the elevator boy standing there holding the door back. There is nothing in the record that suggests there was more than one Plaza Hotel in Corpus Christi. We think the evidence sufficient to require the submission of the issue to the jury. The rule applicable to such cases is admirably stated in the cases cited above, and we need not repeat it here. It comports with common sense and justice. It,is the purpose of the law to provide a remedy for every legal wrong, and the desire of the courts to see justice done and litigants given their day in court. It is too often the regret of the courts that they are powerless to protect against the oversight and omissions of litigants and their counsel. When it may be done without doing violence to established rules of law, then a sense of justice and duty compels it.

The defendant, in subsequent counter propositions, takes the position the evidence is insufficient to require the submission of any issue or issues of negligence to the jury, and establishes conclusively that the plaintiff is guilty of contributory negligence. To this we cannot agree. We do agree, however, the stalling and sticking of the elevator, standing alone, is insufficient to require the submission of an issue of negligence on that account. Under the facts in this record we have reached the conclusion the other acts of negligence alleged call for a submission to the jury, and that the court was in error in not doing so. Since there must be another trial of this case, we refrain from a further discussion of those issues.

For the errors pointed out, the case is reversed and remanded for another trial.


author: BLAIR, Justice.

text:
    BRANTON v. INKS et al.
    No. 9011.
    Court of Civil Appeals of Texas. Austin.
    March 19, 1941.
    Rehearing Denied April 9, 1941,

      Harris & Harris, of Austin, for appellant.
    Shelton & Shelton, of Austin, for appel-lee.
   BLAIR, Justice.

Appellee, Mrs. Nellie Inks, individually and as next friend of her husband, J. M. Inks, alleged to be of unsound mind, sued appellant, J. B. Branton, to cancel and rescind certain deeds and instruments of conveyance alleging that their execution was procured by fraud practiced by appellant upon J. M. Inks and with notice that he was of unsound mind at all times in question. In the alternative, appellee sued for both actual and exemplary damages alleged to have resulted under the facts from the several conveyances. J. M. Inks died after the suit was filed; and before the trial appellee filed her third amended original petition, wherein she continued her suit individually and also sued as community survivor and sole legatee under the will of J. M. Inks, deceased, and as independent executrix of his estate. A trial to a jury upon special issues resulted in judgment for appellee as hereinafter described; hence this appeal.

On April 23, 1936, by warranty deed J. M. Inks conveyed to appellant, J. B. Bran-ton, lots 2 and 4 in Block 3, Outldt 5, Division Z of the City of Austin, together with a dwelling house thereon. Appellant testified that the market value of this property was $1,200 at the time. He assumed and later paid off an indebtedness of $325 against this property. As consideration he deeded to J. M. Inks a house and lot on the Manchaca Road near the city limits of Austin. He testified that the market value of this property was $500 or $600 at the time.

Shortly after this trade was made Inks traded the Manchaca Road property foi 20 acres of land near Carrizo Springs. Inks deeded this property to a friend as a gift. The friend destroyed the deed, and testified that Inks was of unsound mind; that he went with Inks to see the 20 acres, but if it existed it was enclosed in a 60,000-acre ranch. The jury found that the difference between the value of the property traded Branton and the property Branton traded to Inks was $470 at the time. The jury further found that the exchange of the properties was procured by the fraud of Branton; that Inks was-of unsound mind at the time; and that Branton knew of his unsoundness of mind. Upon these findings of the jury, judgment was rendered cancelling and. rescinding the deed and conveyance to Branton, the court further finding and decreeing that since Inks was of unsound mind, and since Branton knew of his unsoundness of mind, no tender of the property received by Inks in the trade was required.

On May 1, 1936, J. M. Inks and his wife, Nellie Inks, by warranty deed conveyed to appellant, J. B. Branton, their homestead in Austin, being the south 34 feet of Lot 9 and all of Lots 8 and 10 of Block 8 of the Christian & Fellman Addition to the City of Austin. This property was a five-unit apartment house. Mr. and Mrs. Inks lived in one unit and rented the other four units for a total monthly rental of $100, and with the exception of only a few months vacancy in two or three of the units, the property had been so rented for ten years next-preceding the conveyance to appellant. There was an H.O.L.C. loan on this property of $4,000, which appellant assumed, and $300 back taxes which appellant assumed and paid. As additional consideration, the homestead was leased to Inks for five years at a rental of $25 per month. As further consideration, appellant deeded Inks a house and lot in Wes-laco, Branton agreeing to pay the back taxes, which he represented to be $280, and which amount he paid Inks in cash. Inks was shown a picture of the house made several years prior to the transaction. Meantime a storm had severely wrecked the house and garage. Inks traded this property to one Wende, who paid the back taxes and found them to be $660 instead of $280. Other evidence showed that Inks realized about $1,140 for the property; and that its value was $1,400 or $1,500. A disinterested realtor testified that the Inks’ homestead had a reasonable market value of $9,750 on May 1, 1936. The jury found that the difference between the value of the property Inks traded to Branton and the property Branton traded to Inks was $1,542. The jury further found that the trade or exchange of these properties was procured by the fraud of Branton; that Inks was of unsound mind at the time, and that Branton knew of his unsoundness of mind at the time. Upon these findings, and the further findings of defective acknowledgment to the deed, and coercion of Mrs. Inks in securing her signature thereto, judgment was rendered cancelling and rescinding this conveyance, the court decreeing that under such facts no tender of the property received by Inks in the trade was required.

On June 18, 1937, appellant, Branton, purchased the leasehold interest of the Inkses, together with the furniture in four of the units of the apartment house, for the sum of $1,000, and took possession of the homestead. This conveyance was in the nature of a quitclaim deed, signed and acknowledged by both Mr. and Mrs. Inks. At the time the lease had almost four years to run, and was shown to have had a reasonable net rental value of $75 or $85 per month. The jury found that this transaction was induced by the fraud of appellant, Branton; that Inks was of unsound mind, and that Branton knew of his unsoundness of mind at the time. The jury further found that the furniture was of the value of $800; and that the reasonable rental value of the premises since appellant took possession was- $1,250. The court found that this transaction could not be equitably cancelled or rescinded, and rendered judg-nlent for the amount of these two items, aggregating $2,050.

A receiver was appointed to rent and care for the properties pending this litigation.

Appellant states that his “brief consists largely of complaints at the evidence as insufficient to support the findings of the jury” with respect to the fraud of Branton, the unsoundness of the mind of Inks, and that Branton knew of the unsoundness of the mind of Inks at the time of the three transactions. These contentions are presented by propositions 1, '4, 8 and 9. We will review first the sufficiency of the evidence on the issues of unsoundness of mind of Inks and Branton’s knowledge thereof at the time of the transactions involved.

The first deed in question was executed by J. M. Inks alone to appellant Branton on April 23, 1936; the second deed was executed by J. M. Inks and his wife, appellee, on May 1, 1936; and the -quitclaim deed or sale of the balance of the 5-year leasehold estate and the furniture was executed by both Mr. and Mrs. Inks on June 18, 1937. Thus the transactions covered a period of about fourteen months. At the time of the first deed J. M. Inks was 78 or 79 years of age and Mrs. Inks was about 75 years of age. J. M. Inks had been engaged in the real estate business in Austin for some thirty years, and seems to have been associated in business with a son, Roy Inks, but for how long the record does not show. In the spring of 1935, Roy Inks died, and J. M. Inks became very despondent, declaring that there was nothing left in life for him. In the latter part of 1935, or the early part of 1936, J. M. Inks suffered what the witnesses described -as a stroke. Dr. C. H. Brownlee, the family physician, a distant relative of Mrs. Inks, and a friend of long standing, was called, and he testified that J. M. Inks was suffering of a stroke of epilepsy and was delirious; that he had Bright’s disease, hardening of the arteries, and high blood pressure, and that as a result of these diseases his ■brain was not getting the proper nourishment. He further testified that Inks suffered other strokes of epilepsy or paralysis prior to his death, which occurred January 5, 1938; and that from the early part of 1936 until his death he was of unsound mind and did not have sufficient mentality to understand the nature of any of the three transactions here involved. . He further testified that one suffering as Inks was might execute the transactions, but still have no recollection of them; and that after his first stroke witness would meet Inks on the street and would not be recognized by him until he told Inks who he was, although Inks had known him intimately all of witness’s life.

Dr. R. E. Cloud, a mental specialist who operates the Oaks Sanitarium near Austin for mental and nervous' cases, testified that several years'prior to the transactions in question he treated J. M. Inks át his sanitarium on two occasions for alcoholism; that in the summer of 1937 he met Inks on the street and that his mind seemed “to be dazed,” but not from alcoholism; and that he did not have sufficient mentality to “understand the nature of a trade wherein he was selling his home, or leasing his home for _ $1,000, and selling his furniture and moving away.”

■ The wife, daughter, and friends of J. M. Inks testified to the change in his mind after the death of his son, and particularly after his first stroke; that he seemed to be obsessed with the idea that there was nothing left in life for him; that he should dispose of his property and get a pension; that he sat on his porch and constantly talked of imaginary large real estate deals he was making; that when he drove his car he would forget where he left it; that after he moved from the home place he did not know why; and that his mental condition grew continuously worse after he had hi's first stroke, about the first of the year 1936.

Inks was described as an able realtor, but traded for the Weslaco property without seeing it, the trade being made with Branton, who testified that he had known Inks only a short time before the first trade was made. He then traded this property for other property without seeing it, and after being told that such property had been “storm wrecked.”- He traded the Manchaca Road property for twenty acres of land near Carrizo Springs without seeing- it; but told his friend that it was worth $5,000, and deeded it to his friend as a gift. The friend destroyed the deed, believing that Inks was of unsound mind; that he went with Inks to see the twenty acres, but if it existed it was enclosed in a 60,000-acre- ranch.

This was sufficient evidence to support the findings of the jury that J. M. Inks was of unsound mind at the time he made each of the three transactions involved here.

The jury could have also reasonably inferred from the following facts and circumstances that Branton knew of the unsoundness of the mind of Inks at the time of each of the three transactions. Branton testified that he did not know Inks until he came to his office in the early part of 1936. He told Branton that he wanted to dispose of his property so that he would be eligible for a pension, or Branton told him that he would not be eligible unless he disposed of his property. Branton knew that Inks was a realtor; that Inks told him he would take his word as to the value and condition of the Weslaco property; and that another reason for selling the homestead was that his married children were constantly coming in and “eating him out of house and home.” This was shown to be untrue; and to the contrary that the four apartments not occupied by the Inkses had been rented for ten years with only a few months vacancy, during which time a son rented one unit for a short time and paid rent as did others. The advantage to Branton as found by the jury was more than one-third of the value of the first piece of property traded to him by Inks; nearly one-third of the value of the homestead interest of Inks.; and for the leasehold estate of nearly four ‘years valued at from $75 to $85 per month net, and the household furniture valued by the jury at $800, Branton paid Inks $1,000. Thus appellant obtained the leasehold estate valued at more than $3,000 for $200.

The daughter of Inks testified that she went to Branton’s office for her father shortly before her father had to move-from the home place, which was either shortly before or shortly after he executed the sale of the leasehold estate and furniture, and told Branton that her father was not supposed to be out alone, and that he was not capable of transacting any business.

The personal appearance of Inks was described as being broken up or despondent. Dr. Cloud testified that in August, 1937, after he executed the quitclaim deed and sale of the furniture on June 8, 1937, Inks appeared to be “dazed”; and that he regarded him as being of unsound mind. 'His family physician testified that Inks for sometime prior to his death was despondent ’’and did not recognize him when they met on the street; that he was of unsound mind when he executed each of the three instruments; and was not capable of knowing their nature and extent.

Having concluded that the evidence sufficiently supports the findings of ⅛ the jury as to the unsoundness of the ,mind of Inks and that appellant knew that he was of unsound mind at the time of the transactions involved; and since the evidence detailed and the findings of the jury show an inadequacy of consideration given by appellant for the property he received from Inks, we further conclude that the finding of the jury that each of the transactions in question was produced by the fraud of appellant is fully supported by the evidence.

Under the general rule, inadequacy of consideration will stamp a transaction with fraud. 20 Tex.Jur. 161. And where one of the parties is insane the rule particularly applicable here is stated in Dowlin v. Boyd, Tex.Com.App., 291 S.W. 1095, 1098, as follows: “Where the person claimed to be defrauded was insane at the time the contract was executed, such misrepresentation becomes immaterial, since the person injured, being insane, could not have been influenced thereby. If this were not the rule, the law would give greater protection to the sane- person than to the insane. Where there is an inadequacy of consideration, coupled with mental impairment of the grantor at the time the instrument was executed, the transaction evidenced by such instrument is an unfair and unequitable one.”

In the case of Rattner v. Kleiman, Tex.Civ.App., 36 S.W.2d 249, 251, the court say: -“In the case of an insane person— that is, one who is wholly unable from mental derangement to make a binding contract — the law presumes fraud from the relative condition of the parties, the presumption being stronger or weaker according to the position of the parties with respect to each other; and if the other party to the contract had notice or knowledge of the existing insanity, his action in concluding a bargain with the insane person, knowing of the disability, constitutes a constructive fraud which authorizes the courts to grant relief.”

The jury having found that Inks was of unsound mind when he made the conveyances; that appellant knew of his unsoundness of mind; and that appellant procured the conveyances by fraud practiced upon Inks, appellee was not required to tender or offer to return the property received by Inks from Branton before being entitled to cancel or rescind the conveyances in question. This rule is agreed to by the parties, appellant stating in his brief that his complaints are “at the evidence as insufficient to'support the findings of the jury’’ on these issues. And both parties cite the cases of Pearson v. Cox, 71 Tex. 246, 9 S.W. 124, 10 Am.St.Rep. 740, and Williams v. Sapieha, Tex.Civ.App., 59 S.W. 947, in support of the rule that under the above-stated findings of the jury, if supported by evidence, it is not necessary to plead nor prove tender or offer to tender the property received before being entitled to a cancellation or rescission of a conveyance by an insane person.

By propositions 2 and'11 appellant contends that the cause of action for can-pellation and rescission of the conveyances and the alternative cause of action for damages resulting therefrom did not survive the death of Inks; and that after the death of Inks appellee could not continue to prosecute the suit without having a guardian ad litem appointed to represent the estate of Inks. Neither contention is sustained. Appellee continued the suit by amended pleadings individually, as community survivor, as the sole legatee under the will of Inks, and as independent executrix, of the estate of J. M. Inks, deceased. The will had been duly probated, and she was entitled in any event to continue the suit individually and as the legally appointed representative of the estate. The provisions of Art. 2159 providing for the appointment of guardians ad litem to represent minors, lunatics, etc., when they are named as defendants in a suit, are not applicable. Art. 1994 provides that where a person of unsound mind is plaintiff he may bring the suit by next friend, which was done in the instant case prior to the death of J. M. Inks; but after his death his wife continued to prosecute the cause individually and as the duly appointed executrix of his estate. Dowlin v. Boyd, Tex.Com.App., 291 S.W. 1095; 44 Tex. Jur.277.

By proposition 3 appellant contends that the petition does not allege a cause of action because it is based upon the conclusions of the pleader. This proposition violates Rule 30 of the Courts of Civil Appeals, in that it is submitted as being applicable to an enumerated group of assignments . of error relating to several objections or exceptions to the petition, which deal with several distinct matters. Ferguson v. Washburn, Tex.Civ.App., 4 S.W.2d 574. However, we do not regard any of the exceptions to the petition as being good, because it alleged that J. M. Inks was of unsound mind at the time he made the three conveyances to appellant; that appellant knew of his condition, and made certain false representations which inducqd Inks to make the conveyances, and that the conveyances resulted in appellant’s obtaining a very substantial advantage; ' and also alleged specifically the facts as to when and how the trades were made, the value of the various properties, and what became of them.

By propositions 5 and 7 appellant contends that the court erred in refusing to give a requested general charge “that the burden of proof is upon the plaintiff to show the existence of insanity of J. M. Inks at the time the deed from J. M. Inks and Nellie Inks to J. B. Branton was executed, by a preponderance of the evidence.” The case was submitted upon special issues, and the court properly placed the burden of proof upon appellee by prefacing each question with: “Do you find from a preponderance of the evidence.” The law is well settled that a general charge on the burden of proof in a case submitted upon special issues is not proper. Owl Taxi Service v. Saludis, Tex.Civ.App., 122 S.W.2d 225.

By proposition 6 appellant contends that the court erred in not giving a special requested charge or instruction to the jury to the effect that if they believed from the evidence that at the time of the transactions in question J. M. Inks had mental capacity to understand the nature and effect of the transactions with the defendant, and if he did so understand they would return a verdict for the defendant; and other instructions of a like nature. The requested charge was a general charge and objectionable for that reason; and was also objectionable because the requested instructions were clearly upon the weight of the evidence and should not have been given. Gray v. Allen, Tex.Civ.App., 243 S.W. 684. The court properly defined “mental capacity,” or “want of mental capacity,” and asked the jury to determine from a preponderance of the evidence whether J. M. Inks was of unsound mind as that term was defined to them in the charge. The definition of mental incapacity given and the method of submitting the issue in the instant case were approved in the cases of Caddell v. Caddell, 62 Tex.Civ.App. 461, 131 S.W. 432, and McCleskey v. McCleskey, Tex.Civ.App., 7 S.W.2d 657.

By proposition 9 appellant, in addition to contending that the evidence was insufficient to show mental unsoundness of Inks and that fraud was practiced by appellant upon him, which we have held sufficiently supported the findings of the jury, further contends that the evidence was insufficient to support the findings of the jury that the reasonable rental value of the premises during the time appellant was in possession was $1,250, and that the value of the furniture sold to appellant with the leasehold estate was $800. These contentions are not sustained. Four units of the apartment house had been rented for a total of $100 per month all but a few months for the ten years next preceding the time appellant obtained possession. The water and lights were furnished, leaving a net rental of from $75 to $85 per month. Appellant had possession from August, 1937, to October 21, 1939. This evidence fully sustained the jury’s finding that the reasonable rental during 'a period of about two years was $1,250.

The furniture was secondhand and no market value could be shown. The kind and character of the furniture in each of the four units were shown. Appellant testified that it was worth not more than $50, or at the outside not more than $150; and that he replaced it with furniture costing “around a thousand dollars.” Mr. and Mrs. Bartley, who occupied one of the units for more than ten years and knew the furniture in each of the units, testified that they examined the furniture Branton placed in the apartments and that there was “very little difference in it” and the furniture sold to Branton by Inks. This evidence sustained the jury’s finding that the value of the Inks’ furniture was $800.

By proposition 10 appellant complains that the court erred in appointing a receiver to take charge of the property in question pending the appeal, because appellant had filed a supersedeas bond herein. No complaint has been made to this court regarding the failure of the receiver to turn over the property to appellant after he filed his supersedeas bond; a casual examination of it shows, however, that the supersedeas bond is not sufficient in amount to cover more than the damages assessed against him by the judgment. We do not regard the matter as being before us at this time.

By proposition 12 appellant complains that the answers of the jury to the various special issues submitted are not based upon legal and competent evidence; and therefore show that the same were the result of passion, prejudice, malice and ill will toward the defendant. We have found that the answers of the jury to the various issues submitted are sustained by the evidence, and the proposition is overruled.

By proposition 13 appellant complains of the argument of counsel for ap-pellee to the jury. Neither the proposition nor the statement thereunder shows the argument to be improper. Appellant seems to complain that’because counsel referred to the fact that appellant testified that the furniture in question was of the value of $150, that he went outside the record. Branton testified that the furniture was worth $150, and counsel had the right to refer to his testimony as not showing the true value, which the jury found to be $800.

Appellant also complains that the argument of counsel was highly inflammatory and prejudicial because he frequently referred to appellant as an ex-convict. The testimony showed that appellant had been convicted on several counts in a federal indictment for receiving and concealing stolen automobiles, and given a 5-year term in the federal penitentiary, plus a fine of $1,000. He was also convicted on other counts in the indictment and given a 5-year term, which was suspended after he served the first 5 years, and a $2,500 fine; and at the time of the trial he had served most of the 5 years of the suspended sentence, and had paid the fines imposed by the court. The crimes involved moral turpitude and the conviction of appellant was properly admitted for impeachment purposes, and the fact could be properly referred to by counsel in oral argument.

The judgment of the trial court is affirmed.

Affirmed.