text:
    TATE v. JOHNSON et al.
    No. 14077.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1940.
    Rehearing Denied May 17, 1940.

      A. B. Cates, of Decatur, for appellant.
    C. T. Gettys and F. J. Ford, both of Decatur, for appellees.
   SPEER, Justice.

E. A. Tate instituted this suit against Bun Johnson, Mrs. Lizzie Baumgaertner, a feme sole, and I. F. Matsinger, in statutory form of trespass to try title, seeking to recover possession of and title to 160 acres of land, a part of the Atroff Survey in Wise County, Texas. The land is described by metes and bounds in the pleadings.

Plaintiff’s petition was filed on November 11, 1938, in which it is alleged that on February 1, 1933, plaintiff was the owner of and in possesion of the land in controversy, and that on February 2, 1933, defendant Johnson and E. H. Baumgaertner (the deceased husband of Mrs. Lizzie Baumgaert-ner, the sole beneficiary under his will) unlawfully entered upon said land and dispossessed plaintiff, and at the time of filing the petition, withheld same from plaintiff. Defendant. Matsinger was shown to be a tenant, who claimed some rights in the land. Further allegations were made that defendants had been in possession of the premises for two years next preceding the filing of suit and had received valuable rentals from the use thereof. Prayer was for title and possession, damages, and for general relief.

Defendants’ answer consisted of general denial, not guilty and limitation of three, five and ten years. Defendants further answered that in 1932, the State of Texas sued plaintiff and others for taxes accruing for the years from 1926 to 1930, both inclusive, recovered judgment and had the property sold under execution. That defendants purchased the land at sheriff’s sale and paid $161 therefor, and that the amount was applied in satisfaction of the judgment for accrued taxes, and that since said date they had paid $50 taxes thereon each year from 1931 to 1938, both inclusive; that all said payments had been made by defendants in good faith, without any notice or knowledge of any defects in the title.

Defendants’ prayer was, in effect, that plaintiff take nothing by his suit and that they be discharged with their costs. That if it be determined by the court that plaintiff has any rights in or title to the property, they recover of plaintiff all sums of money so paid by them, for the purposes stated, with interest thereon, that a lien be declared on the property to secure the repayment . of same and that the lien be foreclosed to satisfy said amounts.

No jury being requested, trial was had to the court, and when plaintiff closed his testimony, defendant offered no evidence, but moved for judgment. Motion was sustained and judgment entered that plaintiff take nothing by virtue of his action and that defendants go hence with their costs. Plaintiff has appealed from that judgment.

The evidence in the case is made' up of stipulations and documents. It was agreed that in 1926, and prior thereto, plaintiff had owned and possessed the lands in controversy. To show common source, plaintiff offered the following documentary evidence :

1. Judgment in the District Court in favor of the State of Texas, against plaintiff Tate, for $208.38, for taxes accruing for the years 1925 to 1930, both inclusive, foreclosing the tax lien on the land in controversy, with order for execution and sale.

2. Order of sale under the above judgment, dated October 8, 1932, returnable November 28, 1932.

3. Officer’s return on order of sale, showing that it came to hand on October 8, 1932, and was executed on the same day, by levying on the land in controversy; on October 27, 1932, he advertised that he would sell the property at the Court House door, to the highest bidder, on December 6, 1932; that he did, on that date, sell said land to Bun Johnson and E. H. Baum-gaertner, for $161, theirs being the highest and best bid thereat. (We have only attempted to state the parts of the return considered important here.)

4. Sheriff’s deed to the above named purchasers, describing the land and reciting the consideration of $161 paid. The deed was dated December. 9, 1932.

5. Deed of trust lien, dated March 2, 1925, on the 160 acres of land, executed by E. A. Tate and wife to F. W. Bartlett, Trustee, to secure the payment to J. W. Bartlett of a certain note for $1,400, of even date with the instrument. The note bearing six per cent interest per annum, containing an accelerating maturity clause, and that if the contract should be breached, the holder of the note could “declare the whole amount lawfully collectible hereunder, due and collectible.” The record shows that the above note and lien were subsequently assigned, but this is not material.

6. Deed of trust lien, dated March 2, 1925, second and junior to that last above 'shown, executed by plaintiff and wife to F. W. Bartlett, Trustee, on the land in controversy, to secure the payment to J. W. Bartlett of a note for $317, in instalments, each bearing interest at ten per cent per annum after maturity. The deed of trust recites that the indebtedness secured is a part of the interest on the $1,400 indebtedness, mentioned by us above. This instrument also provides for accelerating maturity of the indebtedness and contains this language: “Provided that not more than ten per cent interest per annum shall ever he collected on the principal note herein referred to.”

7. Declination of the trustee in the above instruments to act, and the appointment by Mrs. J. W. Bartlett of John G. Gose as substitute trustee. That appointment of the substitute trustee was acknowledged before Virginia Phillips in Dallas County, and the certificate of acknowledgment is attacked.

8. Deed by John G. Gose, substitute trustee, to B. L. Bartlett, dated October 5, 1926, covering the 160 acres of land; the instrument recites that the sale was made under and by virtue of the terms of the second Lien Deed of Trust mentioned by us above as the sixth document offered in evidence.

Upon request of plaintiff, the trial court filed findings of fact and conclusions of law; the facts found are indicated by the stipulations and documentary evidence mentioned above by us. The court’s conclusions are: “The evidence in this cause being such that the superior title to the property in question does not appear to be vested in plaintiff, I conclude that judgment herein should be rendered for the defendants.”

Propositions presented by plaintiff will be disclosed by our discussion of the points raised.

It is contended that the court erred in entering judgment' against plaintiff on the evidence introduced by plaintiff showing title in another, when the instruments were only offered for the purpose of showing common source. It is unnecessary for us to go into the details of plaintiff’s contentions as presented in his brief, for the simple reason that the documents which we have called 5, 6, 7 and 8 could in no way be construed as showing common source of title. They were plaintiff’s deed of trust lien, declination of the trustee to serve as such, the appointment of a substitute trustee and a deed by the substitute trustee after default, to a person other than plaintiff, thereby divesting all title out of him.

The pertinent facts in this case, on the point under consideration, are identical with those that were before us in the case of Goode et al. v. Davis, Tex.Civ.App., 135 S.W.2d 285, writ dismissed, correct judgment. We there held that appellants (plaintiff here) had a right to prove the nature of title claimed by appellees (defendants here) in order to establish common source, but said, at page 288 of 135 S.W.2d: “They did not stop at this; they proved by a series of instruments which, if valid, placed title in appellees and divested themselves of the title.” While in this case plaintiff did not trace the title into defend;ants, but he did, by his evidence, show that title had been divested out of himself.

Plaintiff relies upon Article 7382, R.C.S., which in effect provides that evidence introduced by plaintiff to show common source cannot be considered as evidence of a title in defendant unless offered by him, yet in Hovel v. Kaufman, Tex.Com.App., 280 S.W. 185, at page 188, it was said: “But this statutory provision in no wise precludes a consideration of such evidence for the purpose of determining if the plaintiff has discharged the burden of proving that he really has title to the land as he claims to have.”

It is a well settled rule of law in this State that in trespass to try title, plaintiff must recover, if at all, upon the strength of his own title. The burden is upon him to prove a prima facie right of title and possession; if he fails to discharge that burden he cannot recover, and where defendant is shown to be in possession, as in this case, judgment will be entered for the defendant. These principles are announced in 41 Tex.Jur., sect. 33, pages 497-499, where it is said: “The plaintiff’s right to recover depends upon the strength of his own title, and not upon the weakness of the titfc. of his opponent. * * * Although the defendant may have specially pleaded a title which he has failed to establish, the plaintiff is not entitled to recover unless his own title is affirmatively disclosed. * * * It follows that the de- ‘ fendant is entitled to judgment if the established facts fail to show prima facie title in the plaintiff. * * * In such a suit (trespass to.try title) the plaintiff alleges the land to be in the possession of the defendant, and if the plaintiff does not establish his title by a preponderance of the evidence the defendant is entitled to a judgment decreeing the right of title and possession to be in him.” In the same text, at page 492, sect. 30, it is said: “Possession of the premises by the defendant (as alleged by plaintiff in this case) is deemed to give him a ‘right against the plaintiff’ until the latter has shown title to the land.”

Under another proposition, it is urged by plaintiff that because of defendants’ answer, wherein they plead that they had purchased the land at sheriff’s sale, growing out of a judgment in a tax suit, and paid the amount claimed by them, which was applied to the judgment for .taxes, and had subsequently paid $50 each year for taxes, and prayed that if title be awarded to plaintiff then for judgment against plaintiff and a lien on the land for reimbursement, constituted a plea of a special title in them. It is further urged that having thus specially plead their title, defendants would be required to make proof of that title before they could recover. In the first place, the allegations did not constitute a plea of special title in defendants, depriving them of relying upon their plea of not guilty. It was more in the nature of an alternative plea for equitable relief if title should be awarded to plaintiff. There was no prayer by defendants for recovery of title on the strength of that or any other plea made by them. In the next place, if for any reason it could be construed as a plea of a special title, which they failed to prove, such as it was, plaintiff proved it by the introduction of the documents numbered by us above as 1, 2 and 3. However, no title passed under the sheriff’s deed, referred to, because the sale shows to have been made after the return day of the execution or order of sale. See Goode v. Davis, Tex.Civ.App., 135 S.W.2d 285, supra, and authorities there cited. Moreover, the contention made by plaintiff, that defendants having specially plead a title in them and having failed to prove it entitled plaintiff to recover, is not sound. In De Roach v. Clardy, 52 Tex.Civ.App., 233, 113 S.W. 22, writ refused, it was held that plaintiff, in trespass to try title, cannot recover if he fails to make out his title, even though defendant pleads a special title which he fails to prove.

By another assignment, plaintiff attacks the court’s conclusion that title was shown to be in amsther and not in plaintiff; it is contended that this conclusion could only be reached by giving validity to the second deed of trust lien, the assignment thereof, the subsequent appointment of a substitute trustee by the owner of the indebtedness, and the deed executed by the substitute trustee when the land was sold by him.

The appointment of John G. Gose as substitute trustee is attacked because, since it was an instrument of writing concerning land, it was necessary that it be acknowledged before some officer authorized to administer oaths and recorded in the county clerk’s office in records kept there for that purpose. Article 6626, R.C.S.

The instrument was signed by Mrs, J. W. Bartlett, the admitted owner of the debt and lien. The acknowledgment of which complaint is made by plaintiff, and introduced in evidence by him, reads: “The State of Texas, County of Dallas. Before me, the undersigned authority, on this day personally appeared Mrs. J. W. Bartlett,” and continues in the language provided by the Statute (Article 6607, R.C.S.) and concludes: “Given under my hand and seal of office' this 10th day of September, 1926.” (Signed) “Virginia Phillips”. The instrument is shown to have had the seal imprinted thereon. It was admitted to record by the county clerk of Wise County, and recorded in Vol. 111, page 579, of the Deed Records of that county. Under Article 5960, R.C.S., each notary public shall provide himself with a seal bearing a five point star, around which shall be words showing him to be a notary public in the named county and state, and that he shall authenticate his official acts by an imprint of his seal thereon. The record in this case does not affirmatively show what was on the seal impressed upon the instrument, by the officer who purported to take Mrs. Bartlett’s acknowledgement.

The instrument was duly' recorded by the clerk. The presumption of law prevails that the clerk did his duty in ascertaining that the instrument was duly and legally acknowledged before it was recorded. 36 Tex.Jur., sect. 30, page 440. If the certificate, standing alone, was insufficient to show that the officer was authorized to take an acknowledgment to a deed, it nevertheless will suffice if, when read in connection with the caption and seal attached, it appears that the officer was such one as was authorized by law to authenticate the execution of the instrument. Broussard v. Dull, 3 Tex.Civ.App. 59, 21 S.W. 937. In Caudle v. Williams, Tex.Civ.App., 51 S.W. 560, 562, it was held that at the time the original instrument was presented to the clerk for record, it was his duty to see that the instrument was attested by the proper seal. The clerk in that case, as was done in the instant case, did receive and record the instrument, and the court, speaking through Chief Justice Conner, said: "We must presume that it [the instrument in controversy] was so attested, and that the officer so executing it was authorized to so do.” The opinion from which we have last quoted cites cases by our Supreme Court, to which we also refer. We see no merit in the contention made by plaintiff on this point.

By other assignments and propositions, the validity of the deed by the substitute trustee is attacked, upon the ground that the deed of trust lien (shown above to be item 6 in plaintiff’s evidence) was given to secure usurious interest on the principal note referred to therein, and was therefore void and unenforceable. We had before us instruments containing the identical language complained of here, in Goode v. Davis, Tex.Civ.App., 135 S.W.2d 285, writ dismissed, correct judgment, and we held against plaintiff’s contention. No good could be accomplished by repeating here what we said in that case. We refer to it as authority for overruling the assignments and propositions presented on the point in this case.

The trial court correctly held that the evidence in this case disclosed that the title to the land in controversy was not vested in plaintiff, and therefore he could not recover. No error is presented in any of plaintiff’s assignments of error and they are overruled. The judgment entered should be affirmed. It is so ordered.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    WILHITE et al. v. YOUNT-LEE OIL CO. et al.
    No. 5468.
    Court of Civil Appeals of Texas. Texarkana.
    May 6, 1940.
    Rehearing Denied May 9, 1940.

      D. B. Chapin, of San Antonio, for appellants.
    Turner, Rodgers & Winn, of Dallas, Phillips, Trammell, Estes, Edwards & Orn, of Fort Worth, Strong, Moore & Strong, of Beaumont, F. J. Scurlock, of Dallas, Donald Campbell, of Tulsa, Okl., Joe E. Estes, of Fort Worth, Edwin Lacy, and Jack E. Price, both of Longview, Max R. Rosenfield, of Dallas, and Henry C. Walker, Jr., and James B. Henderson, both of Shreveport, La., for appellees.
   JOHNSON, Chief Justice.

This suit was filed September 3, 1935, in the District Court of Upshur County by Job F. Wilhite and others who are the sole heirs of Hardy Wilhite and wife, Ollie Wilhite, both deceased, against Yount-Lee Oil Company, Stanolind Oil & Gas Company, Arkansas Fuel Company, J. C. McKinley, R. S. McKinley, D. B. Trammel, O. N. Houston, S. R. Houston, and Chris-telle Houston Erwin and husband, Barton E. Erwin, seeking to cancel a judgment entered January 10, 1916, in the District Court of Upshur County in cause No. 4041, styled Mrs. F. D. Futrell v. Ollie Wilhite et al., to recover eighty acres of land situated in Gregg County, a part of the survey patented to Wm. Robinson, and for an accounting of the oil produced from the land by defendants. The judgment in cause No. 4041 is one purporting to foreclose a vendor’s lien on said land, executed by. Hardy Wilhite. The validity of the judgment is attacked upon the alleged ground that plaintiff in said suit did not allege that there was no necessity for an administration upon the estate of said Hardy Wilhite, deceased; and that the citations were defective; and that the judgment did not dispose of all the parties to the suit.

The answers of the defendants contain general demurrer, special exceptions, general denial, pleas of not guilty, and specially pleaded 2, 3, 4, 5, 10 and 25 years’ statutes of limitation, laches and stale demand, innocent' purchaser, and improvements in good faith.

The trial of the cause to the court without a jury, upon an agreed statement of facts, resulted in judgment that plaintiffs take nothing. Plaintiffs have appealed.

The agreed statement of facts shows the following history of title involved. The eighty acres of land was part of a 212-acre tract owned, as their community property, by Samuel Houston, Jr., and wife, L. A. Houston. Samuel Houston, Jr., died intestate in 1905, survived by his wife, L. A. Houston and three children, O. N. Houston, S. R. Houston, and Christelle Houston Erwin, being the sole heirs of Samuel Houston, Jr. Mrs. L. A. Houston, by warranty deed dated April 11, 1906, filed April 20, 1906, conveyed the eighty acres of land to Hardy Wilhite in consideration of $349.09 cash, and the execution and delivery by Hardy Wilhite of his three notes, each in the principal sum of $128.50, payable to the order of Mrs. L. A. Houston, October 1, 1906, 1907, and 1908, respectively, bearing interest from date until paid at the rate of 10% per annum. The vendor’s lien was expressly retained in each of the notes and in said deed. Hardy Wilhite and Ollie Wilhite were then husband and wife, and the interest conveyed by said deed became their community property. Upon receiving the deed Hardy Wil-hite and his family entered into possession of the eighty acres of land, occupied, cultivated and used same as their home, until Hardy Wilhite’s death, and thereafter Ollie and the children continued to occupy the land until ejected therefrom by execution of the judgment in said cause No. 4041. Before maturity and for value, the three vendor’s lien notes executed by Hardy Wilhite, together with the vendor’s liens securing same, were by Mrs. L. A. Houston assigned and delivered to Mrs. F. D. Futrell, a feme sole. On December 26, 1912; nothing having been paid on the principal or interest, said three notes were renewed by Hardy Wilhite executing and delivering to Mrs. F. D. Futrell one note for $667.39, due October 1, 1913, bearing interest from date until paid at the rate of 10% per annum, expressly acknowledging and retaining the vendor’s lien.

Hardy Wilhite died intestate December 29, 1913. He was survived by his widow, Ollie Wilhite, and eight children, Job, Jim, Luther, Lula, Louisiana, William, John, Sam, and two grandchildren, Herbert and Alberta Christian, who were the sole heirs of Hardy Wilhite. On August 4, 1914, Mrs. F. D. Futrell filed suit in the District Court of Upshur County against said surviving wife and heirs of Hardy Wilhite, to foreclose said vendor’s lien, being cause No. 4041, styled Mrs. F. D. Futrell v. Ollie Wilhite et al. Final judgment was entered on January 10, 1916, foreclosing the vendor’s lien and ordering the land sold as under execution in satisfaction of the judgment. Order of sale was duly issued, executed and the land sold to Mrs. F. D. Futrell. The sheriff’s deed was delivered and’ Mrs. F. D. Futrell placed in actual possession of the land March 7, 1916. The deed was filed for record in Gregg County March 13, 1916. By warranty deed dated December 16, 1916, filed July 7; 1917, Mrs. Futrell conveyed the land to S. L. Keels, who immediately went into actual possession. By warranty deed dated January 31, 1920, filed May 26, 1930, O. N. Houston, S. R. Houston and Chris-telle Houston Erwin conveyed to S. L. Keels a ½ interest in and to said eighty acres, reserving ½ the minerals under same. By warranty deed dated January 31, 1920, filed May 26, 1930, S. L. Keels and wife conveyed the eighty acres to R. S. McKinley who immediately went into possession. By warranty deed dated May 8, 1930, filed May 26, 1930, R. S. McKinley and wife conveyed the land to J. C. McKinley, who immediately went into possession. By warranty deed dated April — 1931, filed May 10, 1933, J. C. McKinley conveyed an undivided ½ interest in the land to R. S. McKinley. The several mineral conveyances executed by J. C. and R. 5. McKinley, and the Samuel Houston' heirs, under which the remaining defendants claim are shown in the statement of facts, but it is not necessary to here set them out. It is further agreed that:

“ * * * During all of said period of time, that is, commencing with the date the said Mrs. F. D. Futrell acquired said property on March 7, 1916, to the date this' suit was filed on the 3rd day ’ of September, 1935, said land was in the actual possession of the said Mrs. F. D. Futrell and her successors in title, and those under whom they claim and said parties fenced, used and cultivated said land, and the possession of said parties was notorious, open, peaceable, exclusive, continuous and without interruption. The said Mrs. F. D. Futrell, S. L. Keels and J. C. and R. S. McKinley, and those under whom said Keels and the Mc-Kinleys hold and claim have continuously since March 7, 1916, to the date this -suit was filed on September 3, 1935, claimed the title to said tract of land as their own. Each of said parties bought said land in good faith, paid value, and thought they were purchasing a good title.
“After the said Mrs. F. D. Futrell acquired the property on March 7, 1916, as heretofore stated, she immediately placed a tenant on the property who cultivated a portion of the land and remained continuously in possession until she conveyed the property on December 16, 1916, to S. L. Keels. The said S. L. Keels upon acquiring title immediately placed a tenant in possession who lived thereon and fenced a portion of the property and cultivated same continuously until the property was sold to R. S. McKinley on January 31, 1920. The said R. S. McKinley and his brother, J. C. McKinley, who subsequently acquired an interest in the property, immediately placed tenants in possession of the property who remained on the property continuously until the filing of this suit on September 3, 1935. Shortly after the McKinleys acquired title, on January 31, 1920, their tenants completely inclosed the 80 acre tract and put in cultivation a large portion of same, and same was cultivated from year to year until this suit was instituted. The tenants of the McKinleys placed improvements on said property in the way of houses, barns and cross fences, for the Mc-Kinleys.
“All taxes were paid on said property by the party or parties in possession, before becoming delinquent, for the years 1920 to 1928 inclusive. The 1929 taxes were permitted to become delinquent and were paid on December 26, 1930. All taxes for 1930 to 1935, inclusive, were paid before becoming delinquent.”

Determination of the issues attacking the validity of the judgment in cause No. 4041 is not necessary to a disposition of this appeal; for the reason that the judgment of the trial court in the present case is sustained upon the ground that appel-lees and those under whom they claim have acquired title to the land under both the five and ten years’ statutes of limitation, R. S. Articles 5509 and 5510. So, in discussing the question of limitation, we will assume without affirming, that the judgment in cause No. 4041 is invalid, and for that reason the sheriff's deed thereunder was ineffective to pass title to Mrs. Futrell who purchased at the sale.

Appellants’ contention is to the effect that Mrs. Futrell who purchased and entered into possession under an invalid foreclosure sale, and her successors, (ap-pellees) may not acquire title by limitation, because, it is contended, equity would extend to them the right of a “mortgage in possession” in the respect of being entitled to demand the purchase money paid by them, less the revenues, as a prerequisite to being dispossessed by appellants; that since equity would have extended to Mrs. Futrell and her successors the right of a mortgagee in possession, therefore their possession must, as a matter of law, be regarded as in recognition of and not hostile to the rights of the debtor and his successors in title, appellants. The contention is not sustained. We do not think that a purchaser at an invalid foreclosure sale, and his successors, will be denied the legal right to acquire title by limitation on the ground that equity would extend to such purchaser and his successors the right of a mortgagee in possession, in the respect of making payment of their purchase price a prerequisite to being dispossessed by the debtor.

“A mortgagee in possession,” in fact or strictly speaking, is a mortgagee who takes possession of the mortgaged land by virtue of the contract between him and the mortgagor. 41 C.J. 217. Having thus entered, with the consent and in recognition of the rights of the mortgagor, his possession (in the absence of a repudiation of the relationship) is not hostile to the debtor; and therefore will not ripen into a limitation title. It is the right of a mortgagee in possession to retain possession until his debt is paid. Such character of right has in some states been extended to, and the term “mortgagee in possession” is frequently used as a convenient phrase to describe the condition of one who has peaceably and lawfully acquired possession of the mortgaged premises under such circumstances as that equity will require payment of the debt a prerequisite to being dispossessed by the mortgagor, as where he purchases and enters under and in reliance upon an irregular or void foreclosure sale. “The Texas decisions extend the equitable right to third persons, as well as mortgagees, who purchase at void foreclosure proceedings, by treating the mortgage as still in effect and subrogating the purchaser to the rights of the mortgagee to the extent of the purchase money paid at the foreclosure sale.” Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1084, 115 A.L.R. 329. And, as stated in that case, the Supreme Court of Kansas (Stouffer v. Harlan, 68 Kan. 135, 74 P. 610, 64 L.R.A. 320, 104 Am.St.Rep. 396; Jaggar v. Plunkett, 81 Kan. 565, 106 P. 280, 25 L.R.A.,N.S., 935) has extended the equitable rule still further, reaching the conclusion that: “It is not essential to the status of a mortgagee in possession that possession should have 'been taken under the mortgage, nor with the consent of the mortgagor. It is enough if the possession be peaceably and legally acquired. * * * To be legal, the possession must have been taken in good faith, free from deceit, fraud, or wrong, and without violation of any contract relation with the mortgagor.” The Texas decisions tend to support the more liberal rule above quoted.

Appellants could have (timely) sued and recovered the land from Mrs. Futrell and her successors. They offer no excuse for their delay in standing by for nineteen years and until the appellees had at great expense developed the property to the production of oil, — except the excuse now tendered as a proposition of law, to the effect that since equity would have extended to Mrs. Futrell and her successors the right of a mortgagee in possession, therefore their possession must, as a matter of law, (regardless of the undisputed facts to the contrary) be regarded as in recognition of and not hostile to the rights of appellants. The fact that Mrs. Futrell purchased and entered under an invalid foreclosure sale, in good faith believing that she had thus acquired title, did not make her and her successors “mortgagees in possession” within the pure meaning of that term, as above defined. They did not in fact take and hold possession under a contract with and in recognition of the rights of the debtor. Whether or not, if appellants have timely filed their suit, our courts would have, under the more liberal rule, extended to Mrs. Futrell and her successors the right of a mortgagee in possession in the respect of making payment of their purchase price a prerequisite to being dispossessed by appellants, is a matter not necessary to be decided in this case; for the reason that should it he so affirmed, the holding would not include, nor is the equitable rule based upon, a forced presumption or conclusion as a matter of law that the entry and possession was in recognition of and not hostile to the rights of appellants.

It is claimed that Jasper State Bank v. Braswell, supra, supports the contentions here made by appellants. In that case the bank purchased and entered under a foreclosure sale which was invalid as to the interest of 'one of the mortgagors, Mrs. Braswell, because she was not made a party to the proceedings. The possession of the bank was held lawful and the equitable right of the mortgagee in possession was extended to it, and Mrs. Braswell was required to pay her portion of the debt as a prerequisite to a recovery by her of her interest in the land, — notwithstanding the-fact that the bank’s possession was not in recognition of the rights of Mrs. Braswell. But that decision is not based upon any character of legal fiction striking down the true facts and substituting in lieu thereof a presumption that the bank’s possession was in recognition of Mrs. Braswell’s rights. The decision simply holds that the fact that the bank’s possession was not in recognition of Mrs. Braswell’s rights did not necessarily make such possession unlawful. We do not find anything said in that case, or any other case called to our attention, which supports appellants’ conclusion that because the possession of a purchaser under an invalid foreclosure sale may be held lawful in the sense that the equitable rights of a mortgagee in possession will be extended to him, therefore his possession must, as a matter of law, be held in recognition of and not hostile to the rights of the Judgment debtor.

In the case of Hendron v. Yount-Lee Oil Co., Tex.Civ.App., 119 S.W.2d 171, writ refused, this court upon facts not materially different from the facts of this case refused to sustain the same contention a.s here presented by appellants. To the authorities cited in that case we add the following: Martinez v. Logan, Tex.Civ.App., 222 S.W. 611; Goodman v. Nichols, 44 Kan. 22, 23 P. 957; McNeill v. Schumaker, 94 Neb. 544, 143 N.W. 805; Hall v. Hooper, 47 Neb. 111, 66 N.W. 33; 2 C.J.S., Adverse Possession, p. 611, § 73, Sub-section b, and authorities there cited.

The judgment of the trial court is affirmed.


author: GRISSOM, Justice.

text:
    SIPE v. SAYER et al.
    No. 2002.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1940.
    Rehearing Denied April 26, 1940.

      R. E. Rodgers, of Hamlin, for appellant.
    Gray Browne, of Abilene, for appellees.
   GRISSOM, Justice.

G. T. and W. R. Sipe instituted this suit against E. G. Sáyer and wife and R. L. Wilkins, Sheriff of Fisher County, to enjoin the sale under execution of certain lands belonging to plaintiffs. Upon a hearing the court enjoined the sale as to the land owned by G. T. Sipe, but refused to enjoin sale of the land owned by W. R. Sipe. W: R. Sipe has appealed.

Plaintiffs’ prayer was as follows: “Wherefore plaintiffs pray that writ of 'injunction issue out of this court, restraining defendants and each of them from selling said property so illegally levied upon and that defendants be cited to appear and answer and that, upon final hearing, that said injunction be made permanent, and that plaintiffs have judgment for the removal of cloud cast on said titles by reason said abstract of judgment and by said levy.” Plaintiffs further prayed for costs, damages and general relief.

The parties have apparently considered the petition as an application for a temporary injunction. The trial court filed findings of' fact and conclusions of law. The cause is before this court upon a transcript in the absence of briefs and statement of facts.

The temporary injunction appears to have been refused by the trial court as to W. R. Sipe for the reason (as evidenced by the court’s findings of fact) that the 140 acres of land, levied upon by virtue of the Sayer execution and claimed by W. R. Sipe as his homestead, was not his homestead because, although W. R. Sipe had the intention to make said tract his homestead, there was no evidence of occupancy or overt acts of preparation of said land for use as a home, and proof alone of intention to occupy the land as a home was insufficient to establish its homestead character. Such a conclusion is sustained by the authorities. In Gilmore v. Dennison, 131 Tex. 398, 115 S.W.2d 902, our Supreme Court said: “ * * * the rule has been established that in order to impress upon property a homestead character, in the absence of actual occupancy thereof, there must be an intention by the head of the family to reside upon it with his family as a home, coupled with some overt act of preparation evidencing that intention. Mere intention alone is not sufficient.” See also Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317, writ ref.

In Miller v. Stafford et al., Tex.Civ.App., 46 S.W.2d 438, it was held that it was error to grant a temporary injunction in the absence of a specific prayer therefor. Also, see Ely v. Elliott, Tex.Civ.App., 55 S.W.2d 1080; Fletcher v. King, Tex.Civ.App., 75 S.W.2d 980; Temple Ind. Sch. Dist. v. Proctor, Tex.Civ.App., 97 S.W.2d 1047; 24 Tex.Jur. p. 236. It is evident that in the prayer heretofore quoted appellant does not specifically pray for a temporary injunction. However, we do not find it necessary to rest a decision of this case upon that theory.

In the absence of a brief by appellant we cannot know on what supposed error he may rely for a reversal of the judgment. It has been definitely established that a man who resides with his family upon a jointly owned tract of land with his co-tenants may acquire a homestead exemption in his undivided interest in the entire tract of land, and that upon partition his homestead exemption vests immediately in that part of the entire tract which is allotted to him, and this is true even though such person has never actually resided upon the part allotted to him by the partition. Young v. Hollingsworth, Tex.Civ.App., 16 S.W.2d 844, writ ref.; Thompson & Sons Lumber Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106; Dillard v. Duke, Tex.Civ.App., 107 S.W.2d 414, 418; Brown v. McLennan, 60 Tex. 43; Luhn v. Stone, 65 Tex. 439; Jenkins v. Volz, 54 Tex. 636; Tucker v. Dodson, Tex.Civ.App., 245 S.W. 728; Massillon Engine & Thresher Co. v. Barrow, Tex.Com.App., 231 S.W. 368.

It is apparent from a study of the petition that facts are not alleged sufficient to bring the case within the purview of such decisions. Had appellant lived with his wife upon the 420-acre tract of land with his mother and brothers and used and occupied it in such manner as to establish his homestead rights in his undivided interest in the entire tract, upon partition to him of the west 140 acres, he might have established that the west 140 acres was his homestead, despite the fact that there was no house oh that tract and he had never actually resided thereon. But facts supporting recovery on such a theory are not alleged, if they exist. Appellant alleged, in paragraph 6 of his petition, as follows: “That forthwith as soon as said partition mas made, plaintiff W. R. Sipe, began using, occupying and claiming the west 140 acres of said land.as his homestead, that at all times since that date he has used and claimed same as his homestead * * (Italics ours) No facts are alleged showing W. R. Sipe’s right of homestead exemption in his undivided interest in the 420-acre tract of land prior to partition. The court has found that W. R. Sipe has not occupied his partitioned tract, nor prepared it for homestead use. There is no challenge made of the court’s findings of fact or conclusions of law. Therefore, no error appears in the action of the court in refusing to enjoin the sale under execution of W. R. Sipe’s land.

The judgment is affirmed.

FUNDERBURK, J., dissenting.

For dissenting opinion of FUNDERBURK, J., see 140 S.W.2d 1112.


text:
    SMITH v. STATE.
    No. 2011.
    Court of Civil Appeals of Texas. Eastland.
    April 19, 1940.
    W. E. Martin, of Abilene, for appellant.
    Esco Walter, Co. Atty., of Abilene, for appellee.
   GRISSOM, Justice.

At the April term of the 42nd Judicial District Court of Taylor County, the State of Texas, acting by the District Supervisor of the Texas Liquor Control Board, and the County Attorney of Taylor County, Texas, presented its petition to the Judge of said court wherein the State alleged, under oath, that Lloyd Smith, and others not necessary to name, since Smith alone has appealed, were keeping and maintaining a building in Taylor County “where liquor is sold and bartered in violation of the Texas Liquor Control Act” and “where persons are permitted to resort for the purpose of drinking liquor in violation of the law, and is a place where such beverages are kept and bartered in violation of the law.” Wherefore, the State alleged, the defendants were maintaining a common nuisance. See Art. 666—42, P.C., Vernon’s Ann.

Plaintiff’s prayer was as follows: “ * * * plaintiff prays that the court issue a temporary restraining order padlocking the above described place and premises and restraining the defendants * * * from permitting persons to resort” to a certain described building “for the purpose of drinking liquor, and restraining said defendant from selling liquor and possessing liquor for the purposes of sale at said place and premises.”

The petition was presented to the judge of said court, in chambers, and without notice or hearing, the following fiat was indorsed on the petition: “At chambers, this the 12th day of May, 1939, on shozv-ing made herein, the State of Texas is hereby granted a temporary restraining order padlocking the above place and premises and restraining the defendants * * * from permitting persons to resort to” . the described building “for the purpose of drinking liquor and restraining said defendants from selling liquor and possessing liquor for the purpose of sale at said place and premises, and the clerk of this court is hereby directed to issue a temporary restraining order to the sheriff or constable of Taylor County, Texas, ordering him to padlock said premises.”

A writ was issued by the clerk of said court on the 12th day of May, reciting the judge’s fiat indorsed upon said petition, and commanding the defendants “to refrain from permitting persons to resort to” said building “for the purpose of drinking liquor and to refrain from selling liquor and possessing liquor for the purposes of sale at said place and premises, until the further order of said 42nd District Court, to be holden within and for the County of Taylor, at the courthouse thereof, * * * on the first Monday in September, A. D. 1939, the same being the 4th day of September, A. D. 1939, when and where this writ is returnable.”

The constable’s return on said writ recited that he had delivered to Lloyd Smith a copy of the writ “and padlocked said house * * On May 29, 1939, the judge of said court fixed the amount of Smith’s supersedeas bond on appeal and directed that when said bond had been executed and approved by the clerk that the writ of supersedeas should issue directing the proper officer to_ remove the padlocks placed thereon “under the writ of injunction herein issued.” Thereafter, Smith executed his supersedeas bond on appeal wherein he recited that said judge “granted, and the clerk of said court issued temporary injunction and restraining order”, and that “Lloyd Smith, defendant in said cause, has appealed from said restraining order and said order padlocking said premises” to this court.

The case is before this court upon the transcript only, no briefs having been filed herein.

The first difficulty encountered is in determining whether or not the order appealed from is a temporary injunction or a restraining order. If it is a restraining order it is not appealable, and this court has only the authority to enter its judgment dismissing the appeal. 24 Tex.Jur. 291; City of Jacksonville v. Devereux, Tex.Civ.App., 286 S.W. 572; Jacksonville Ind. School Dist. v. Devereux, Tex.Civ.App., 286 S.W. 573; Lark v. Coyle, Tex.Civ.App., 260 S.W. 1107; Hudson v. Sunshine Oil Corp., Tex.Civ.App., 245 S.W. 765; Hoskins v. Cauble, Tex.Civ.App., 198 S.W. 629; Johnson v. Sunset Stores, Inc., Tex.Civ.App., 27 S.W.2d 644; Cox, Inc. v. Knight, Tex.Civ.App., 50 S.W.2d 915.

There was no notice or hearing, and, under Art. 667—27, Vernon’s Ann.P.C., in the absence of notice and hearing, the only order the judge was authorized to enter was a restraining order.

In Ex parte Zuccaro, 106 Tex. 197, 199, 163 S.W. 579, 580, Ann.Cas. 1917B, 121, Justice Phillips discussed a somewhat similar order and construed it to 'be only a restraining order, limited in its duration to the date appointed for a hearing. He quoted from the opinion of Chief Justice Gaines in Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14, the classification of injunctions under our practice as follows:

“‘(1) A restraining order, which is •defined to be: “A restraining order is an interlocutory order made by a court of equity upon an application for an injunction and .as part of the motion for a preliminary injunction, by which the party is restrained -pending the hearing of the motion.” (2) One which is intended to operate, and which ■does operate unless dissolved by an interlocutory order, until the final hearing; and (3) a perpetual injunction which can be ■properly ordered only upon a final decree.’ ”

At the time the order was made it was evidently not the intention of the court to then set the case for a final hearing on its merits at a subsequent term of court. At that time the defendant had not been cited, nor had he appeared. Although the order was effective until September 4, 1939, it was not intended, we think, to be effective until a final hearing of the case on its merits at the succeeding term of court, hut expired on September 4th, which, we understand to be the date contemplated for a hearing on a supposed application for temporary injunction.

We are of the opinion that the order was intended to be, and is, that which it was designated by the trial judge to be, namely, “a temporary restraining order”, and, therefore, not appealable. Ex Parte Zuccaro, 106 Tex. 197, 163 S.W. 579, Ann.Cas.1917B, 121; Ex Parte Dick Rains, 113 Tex. 428, 257 S.W. 217; Johnson v. Sunset Stores, Inc., Tex.Civ.App., 27 S.W.2d 644; 24 Tex.Jur. 293; 24 Tex.Jur. 196; Hoskins v. Cauble, Tex.Civ.App., 198 S.W. 629; McKenzie v. Withers, Tex.Civ.App., 153 S.W. 413; Art. 2251; Art. 4662; Berry v. State, Tex.Civ.App., 79 S.W.2d 891; Lokey v. Elliott, Tex.Civ.App., 88 S.W.2d 126; Citizens Nat. Bank. v. Thomas, Tex.Civ.App., 88 S.W.2d 1090; Mickle v. Garrett, Tex.Civ.App., 110 S.W.2d 1235; Swift v. Callaghan Land & Pastoral Co., Tex.Civ.App., 120 S.W.2d 459; Nall v. Malley, Tex.Civ.App., 55 S.W.2d 593.

Although we are required to dismiss the appeal we deem it proper to observe that, in our opinion, Articles 666—29 and 667—27 of the Penal Code do not authorize the closing of a building until final judgment is rendered, nor the issuance of an injunction prior to notice and hearing. Article 666—29 provides: “ * * * upon final judgment against the defendant the Court shall order that said * * * building * * * shall be closed.” Article 667—27 provides: “ * * * the District Judge shall have authority to issue restraining orders without hearing, and upon notice and hearing to grant injunction * *

We have heretofore held that a temporary injunction is not authorized in the absence of a prayer therefor. Sipe v. Sayer, Tex.Civ.App., 140 S.W.2d 297, decided March 29, 1940. Also see, Ely v. Elliott, Tex.Civ.App., 55 S.W.2d 1080; Fletcher v. King, Tex.Civ.App., 75 S.W.2d 980; Temple Independent School Dist. v. Proctor, Tex.Civ.App., 97 S.W.2d 1047; 24 Tex.Jur. 236. There is no such prayer in plaintiff’s petition. Except as stated in the applicable articles of the Texas Liquor Control Act, the rules applicable to injunctions generally are, by statute, made applicable to injunctions issued thereunder. Art. 666 — 29, P.C., Acts 1935, 44th Leg., 2d C.S., p. 1795, ch. 467, Art. 1, sec. 29, and Art. 667 — 27, P.C.

The appeal is dismissed.


author: SMITH, Chief Justice.

text:
    MORRIS v. RUEGG.
    No. 10831.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1940.

      Davis, Wright & Perales, of San Antonio, for appellant.
    Wurzbach & Glosserman, of San Antonio, for appellee.
   SMITH, Chief Justice.

This appeal’ is. from an interlocutory order appointing a receiver without notice. The petition upon which the appointment was made covers thirty-one pages of the transcript of the record, and therefore, as a matter of’course, cannot be even summarized in this opinion. The action was brought by F. E. Ruegg against W.- H. Morris, and the latter has appealed. The parties will be referred to as plaintiff and defendant, respectively, as in the trial court.

Plaintiff alleged, as grounds for appointment of a receiver, that on October 4, 1939, he purchased from defendant a one-hal’f interest in defendant’s business operated under a trade name, for a cash consideration of $2,500; that he was induced to purchase said interest through fraudulent representations of defendant, and —

“Plaintiff alleges that from time to time defendant has taken from the warehouse of the partnership, materials, being rock wool and insulating materials, and used the same in the insulation of homes for a (said) lumber company, and that defendant has taken and appropriated said rock wool and insulating materials to his own use without the consent of plaintiff and without paying therefor, and plaintiff fears that defendant will continue to do so in the future.
“Plaintiff further alleges that plaintiff and defendant are unable to agree on the management of said business and that defendant by appropriating to his own use without the consent and against the will of the plaintiff the rock wool and insulating materials as aforesaid, has ousted plaintiff from the management of said partnership and has deprived him from participating in the management thereof.”

The primary prayer of the petition was for the rescission of alleged partnership agreement between plaintiff and defendant, whereby plaintiff acquired from defendant one-half interest in the alleged partnership business, and that plaintiff have judgment against defendant for the purchase price of such interest, and other incidental damage, and—

“In the alternative plaintiff prays for judgment dissolving said partnership and for an accounting and that pending this litigation a Receiver be appointed to take possession, control and management of the property of said partnership and the automobile of defendant and of defendant’s interest in said lease and to administer the same under the orders of this court, and for such other and further relief, both in equity and in law, to which plaintiff may be entitled.”

We are of the opinion that plain-tiff alleged a case for the appointment of a. receiver as prayed for, under the provisions of § 1, Art. 2293, R.S.1925. It is there provided that receivers may be appointed in an action between joint owners, or partners, where the partners disagree, ór one has been ousted by the other, or an accounting is sought. 36 Tex.Jur. pp. 41-44, and authorities there cited.

It is equally true, however, that plaintiff alleged no facts which authorized-the appointment of a receiver without notice to defendant giving him a reasonable opportunity to contest the application. Plaintiff's petition shows the property in controversy is located in the county of suit, and that defendant is a resident of that county,' and there was no attempt to show such an “exceptional,” “extreme” or “imperative” case as demanded “immediate interference by the court in order to protect the property or rights of the applicant from imminent danger,” or “In other words, it must appear that the applicant will suffer great or irreparable — or at least material-injury or loss if the appointment is delayed so as to permit of notice to adverse party and to accord him a hearing.” Such showing was incumbent upon plaintiff to entitle him to the order without notice. 36 Tex.Jur. pp. 105, et seq., §§ 48, 49; Amason v. Harrigan, Tex.Civ.App., 288 S.W. 566.

The judgment is reversed and the receiv•ership vacated.


author: MONTEITH, Chief Justice.

text:
    MAURITZ et al. v. THATCHER.
    No. 10956.
    Court of Civil Appeals of Texas. Galveston.
    April 18, 1940.
    Rehearing Denied May 16, 1940.
    Rose & Sample and S. G. Sample, all of Edna, for appellants.
    Eugene J. Wilson, of Houston, for ap-pellee.
   MONTEITH, Chief Justice.

This is an appeal in an action in trespass to try title brought by appellants, T. N. Mauritz, Fred Mauritz, and Harry Mauritz, plaintiffs in the trial court, against appellee, Charles W. Thatcher, defendant below, to recover the title to and possession of Lots Nos. 10 and 11, of five acres each, in Block No. 3 of the Schwind and Mahers Addition to Francitas Farms in Jackson County, Texas.

Appellants pled a formal suit in trespass to try title. They relied for recovery on and introduced in evidence a chain of title from an agreed common source into themselves.

Appellee answered by a plea of not guilty and specially pled the ten year statute of limitation, Article 5510, Revised Civil Statutes. He relied entirely as his defense upon his adverse possession of the property in controversy.

One special issue was submitted to the jury, that of adverse possession under the said ten 'year statute of limitation. The jury answered said issue in favor of ap-pellee. Based on this verdict, the court rendered judgment in favor of appellee for the title to and the possession of the land sued for, and denying the relief sought by appellants.

At the conclusion of the evidence appellants moved for an instructed verdict and after the return of the jury’s verdict they presented a motion for judgment non obstante veredicto. Both motions were overruled, to which action of the trial court they assign error.

By deed dated October 19, 1922, John C. Emigh, the then owner of the two lots in question, conveyed them to his son John Z. Emigh. John Z. Emigh conveyed said lots to R. J. Miller, who conveyed said lots to appellants. In 1911 appellee purchased Lots Nos. 12 and 13 in said Block No. 3, adjoining Lots 10 and 11, and used and occupied. said Lots 10 and 11 in connection with said Lots 12 and 13 as a tenant and agent for his father-in-law, John C. Emigh.

He built a house on said Lot 11 and occupied it until the year 1917 under the mistaken impression that he was occupying said Lot 12. When he discovered his mistake he moved said house to other property owned by him.

Appellee testified that he had cultivated and occupied said Lots 10 and 11 continuously since 1911 but that he did not claim said two lots until 1921 or 1922, when he learned that his father-in-law, John C Emigh, had disposed of them.

The jury having found on what we deem to be sufficient evidence that the two lots in controversy had been continuously claimed, used and occupied by appellee, either in person or through tenants, for a period of ten years prior to the filing of this suit, the question then to be determined. in this appeal is whether the acts of appellee, in his assertion of his claim to said two lots, were sufficiently open, notorious and inconsistent with the title of the then owners thereof, under' all of the circumstances in the case, to raise the inference of notice to the record owners that his claim thereto was hostile to their interest or from which the jury might rightfully presume such notice.

The court gave the customary definitions and instructions as to “peaceful”, “adverse”, and “continuous” possession of the property in controversy in connection with the issue submitted to the jury as to adverse possession. At the request of appellants, he also gave the jury the following instruction defining the term “hostile”: “You are instructed that by the term ‘hostile’ is meant an occupancy of the premises under a holding by the possessor as owner, and therefore against' all other claimants of the land.”

It is the settled law in this state that a tenant cannot dispute the title of his landlord by setting up a title either in himself or in a third person during the existence of his tenancy until such notice of a termination thereof is given to the landlord as amounts to an actual dissei-zin. Limitation upon an adverse possession in a case of this kind begins to run from the time of such notice of a termination of tenancy. It is not necessary, however, that actual notice of an adverse holding and disseizin be given to a co-tenant or owner. Such notice may be constructive and will be presumed to have been brought home to the co-tenant or owner when the adverse occupancy and claim of title to the property is -so long-continued, open, notorious, exclusive and inconsistent with the existence of title in others, except the occupant, that the law will raise the inference of notice to the co-tenant or owner out of possession, or from which a jury might rightfully presume such notice. It is held that reputation of the claim of a co-tenant and notice thereof may be shown by circumstances and that a jury may infer such facts from long continued possession of the land under claim of ownership and non-assertion of claim by the owners. Moore et al. v. Knight et al., 127 Tex. 610, 94 S.W.2d 1137; Ilig v. Garcia, 92 Tex. 251, 47 S.W. 717; Rae v. Baker, Tex.Civ.App., 38 S.W.2d 366; Williams v. Pure Oil Co., Tex.Civ.App., 49 S.W.2d 846.

Since the jury and the trial judge have, upon sufficient evidence, resolved not only the issue as to appellee’s claim, use and occupancy of the two lots in question for the statutory period of time, but have resolved the issue as to the sufficiency of the notice of his claim of ownership thereof to the record owners, regardless of whether we would have decided these issues in the same manner, the trial court’s findings on said issues are conclusive and binding on this court, and appellants’ contentions in this respect must be overruled.

Appellants assign error in the failure of the court to submit the following special instructions to the jury:

“You are instructed that if at the time of the conveyance of the land involved in this suit by John C. Emigh to John Z. Emigh, if it was so conveyed, the defendant, Charles W. Thatcher, was in possession of such land, and that he, the said defendant, at such time, recognized the said John C. Emigh as the owner thereof, if he did so recognize him, the continued possession of such land by defendant thereafter, if such possession was continued, did not become adverse in the said defendant against the said John Z. Emigh, or any one claiming under him, unless and until the said Thatcher repudiated his recognition of the title to said land of the said John Z. Emigh, or any one claiming under him, if he did repudiate same, and brought, if he did so, to- the notice of the said John Z. Emigh or any one claiming under him, defendant’s repudiation of such recognition and of the assertion by defendant of an adverse claim, if any.”
“You are instructed that if at any time after John Z. Emigh took conveyance of the property in question from his father, John C. Emigh, if he did so obtain conveyance thereof, and before John Z. Emigh conveyed said property to R. J. Miller, if he did so convey same, the defendant had charge of the land in question either as the tenant or as the agent of the said John Z. Emigh, his possession, use or enjoyment of said property would not thereafter become adverse to the said John Z. Emigh during the latter’s ownership of said lands, until defendant renounced such agency or tenancy, if he did so renounce same, and the said John Z. Emigh had notice of such renunciation, if he did have notice thereof.”

Appellants did not request of the trial court any special findings and did not prepare and request the submission of issues as to the relationship of the parties or as to notice to the record owners of the lots in question of a repudiation of appellee’s claim thereto.

The above requested instructions are, in our opinion, in no sense the explanations and definitions of legal terms referred to in Article 2189, Revised Statutes of 1925, but are charges on the law of the case and for that reason were properly refused by the trial court. Standard v. Texas Pacific Coal & Oil Co., Tex.Civ.App., 47 S.W.2d 443; Gulf C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Mahone v. Bowman, Tex.Civ.App., 70 S.W.2d 323; Harris v. Thornton’s Dept. Store, Tex.Civ.App., 94 S.W.2d 849; National Indemnity Underwriters of America v. Washington, Tex.Civ.App., 119 S.W.2d 1071.

Appellants complain that reversible error was committed by attorney for ap-pellee in his argument before the jury, to the effect that appellee’s claim under the ten year statute of limitation was not less commendable from a moral standpoint than appellants’ purchase of lands near the property in question at tax sales which had been previously owned by people who were too poor to pay their taxes. The record shows that appellants’ attorney in his opening argument to the jury had stated that he was not the keeper of the conscience of appellee’s wife who had testified in appellee’s behalf as to his adverse possession of the land in question. The trial court sustained both the objections urged by appellee’s counsel to appellants’ argument and that urged by appellants’ counsel complained of, and instructed the jury not to consider either argument.

Under the record presented we do not think the argument complained of was so prejudicial or inflamatory that the instruction from the court did not cure the error, if any, caused thereby.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.


author: BROWN, Justice.

text:
    WILTON et al. v. SPENCER et al.
    No. 14089.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1940.
    H. M. Muse, of Wichita Falls, for appellants.
    John D. McComb, of Jacksboro, for ap-pellee.
   BROWN, Justice.

This is an appeal from a judgment of the district court of Jack County, awarding the custody of a minor child about four years old in such manner that the mother, who has remarried since she and the child’s father were divorced, has the care, custody and control of the child certain months during each year, and the child’s aunt and her husband have such care, custody and control during the other months of each year. The aunt is a sister of the father of the child and lives in the same town as does the father.

The cause was tried before the district court; and the mother, joined by her present husband, has appealed from the judgment, contending that she should have been awarded the exclusive care, custody and control of the child, with the right and privilege of the father to visit the child at suitable times.

Three assignments of error are presented. We will consider the first and second together. The first contends that the trial court erred in finding that it would be to the best interest of the child for its custody to be awarded a part of the time to its aunt and uncle (by marriage), the ap-pellees, and a part of the time to its mother and step-father, in the absence of proof that its mother is not a fit and proper person to have such care, control and custody, and when the proof discloses that the mother had a proper home in which to keep the child, and under the law the mother was entitled to a preference over other relatives, such as her said aunt, and that it would be to the best interest of the child to give the care, custody and control of the minor to its mother.

The second assignment of error is in all respects identical with the first and urges that the proof discloses that the child is harder to control after it has been in the care of its aunt.

Every member of this court has served as a district judge and, in such responsible positions, we were called upon time and time again to assume the responsibility of deciding, as best we knew, from the facts, circumstances and situations before us, what was for the best interest of small children who have been found adrift on the sea of life, after the matrimonial barque, launched so bravely and happily by the parents, has struggled in a sea of discontent and been wrecked on the rocks of unhappiness.

’Tis no easy task for any court, and it was the purpose of those who went before us to create some agency wherein the interest of the unfortunate child should be paramount and the interest of the unfortunate parent, or parents, only secondary. Looking to this end, those who have run before us have lodged in the hearts and bosoms of our district judges discretionary powers in these matters, on whom the burdens and responsibilities are thus thrust. Unless such discretion is abused, neither this court nor the Supreme Court can or should interfere.

Art. 4639 (Rev. Civil Statutes) vests the authority in the district court to award the custody of a minor child in such manner as is deemed for the best interest of the child.

The little boy, whose present and future welfare are involved here, was born to Maurice Spencer and Eula Mae Spencer, on January 25, 1936, and both the mother and child were cared for by Mrs. Edna Gray (one of the appellees and a sister of Maurice Spencer). When the little boy was about seventeen months old, the mother separated from the father and secured employment in a cafe in Jacksboro, Texas, and left the baby with Mrs. Gray. She visited the baby while she worked in Jacks-boro, and even when she secured employment in cafes in Wichita Falls and Midland, Texas. The mother secured a divorce from the father of the child in the 78th District Court of Wichita County, Texas, on February 26, 1938. The custody of the child was not put in issue in that suit, but an agreement was had whereby the child was to be left with Mrs. Gray and the mother given the right to visit it. The mother married one C. M. Wilton, after the father of the child brought suit in the district court of Jack County, praying for an order awarding the care and custody of the little boy to him, and alleging that he would keep the child in the home of his said sister if given such custody, and prayed in the alternative that such custody be awarded Mr. and Mrs. Gray.

The evidence discloses that the stepfather, Wilton, is a tool dresser and seeks employment in the oil fields and that such work is not “steady” employment; that a baby has been bom to Mr. and Mrs. Wilton ; that they are renting a furnished place; that Mr. Gray is part owner of a crude oil refinery in Jack County and he and Mrs. Gray have no children.

The trial court saw and evidently knows the parties here in litigation. The facts and circumstances were before the judge of that court and he has entered a decree which, to him, makes for the best interest of this little boy. He has exercised his discretion and we cannot find anything in the record tending to show an abuse of the discretion vested in him.

We are content to cite only two cases in support of our conclusions. Smith v. Biggers, Tex.Civ.App., 41 S.W.2d 325, and Conley v. St. Jacques, Tex.Civ.App., 110 S.W.2d 1238.

The third assignment of error contends that the trial court erred in not giving appellants the right to try the issues involved before a jury.

We see no error in this. We believe that the paramount issue was one for the court, and that this case does not present a situation where a jury verdict would prove helpful as being even “advisory”. Fact is, we believe the trial judge has evidenced a desire to discharge his full duty rather than indulge in “passing the buck” to a jury. For this we honor rather than criticise him.

All assigned errors are overruled and the judgment is affirmed.


author: LOONEY, Justice.

text:
    WALVOORD v. KEYSTONE MORTGAGE CO.
    No. 12867.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1940.
    Rehearing Denied May 4, 1940.

      John C. Walvoord, Jr., of Dallas, for appellant.
    Coker, Rhea & Vickrey, of Dallas, for appellee.
   LOONEY, Justice.

On original submission, we affirmed the judgment of the trial court without a written opinion, and later overruled appellant’s motion for rehearing; but, after due consideration, permitted appellant to file a second motion for rehearing, which is now under consideration.

Appellant sued appellee, to recover $174.94 unearned interest, alleged to have been paid under stress of a business necessity, amounting to coercion and duress. The material facts are these: In November, 1931, appellant and wife executed a deed of trust on 119 acres of land situated in Denton County, Texas, to secure a loan of $4,750, bearing 7 per cent, interest per annum, evidenced by one note for the principal amount, in favor of the Central Life Assurance Society (Mutual), of Des Moines, Iowa, payable in installments, bearing 5½ per cent, interest, evidenced by coupon notes attached, and a second note for $607.50, also payable to the Central Life Assurance Society (Mutual), in installments representing 1½ per cent, interest on the loan. The latter note, that is, the 1½ per cent, interest note, was assigned by the payee to Keystone Mortgage Company, appellee, the broker negotiating the loan.

It seems that, in the spring of 1938, appellant was offered a good price for the 119-acre tract by a Mr. Holmes, who stipulated, as conditions precedent to his purchase, that the land should be freed of all liens and encumbrances on or before June 1, 1938. Being anxious to sell the land to Mr. Holmes at the price offered, appellant opened and conducted negotiations with appellee, seeking an agreement permitting prepayment of the 1% per cent, interest notes, as shown by the following correspondence:

On March 7, 1938, appellant opened the negotiations with the following letter to the Keystone Mortgage Company: “Gentlemen: Ref. your loan No. 1168-12 in my farm in Denton Co. Texas. I have an opportunity to sell this farm but the purchaser wants to be assured that he can pay off all indebtedness as soon as he buys. Please let me know what you will take for the notes you hold. You have 4 I believe coming due on Dec. 1st of the next 4 years. Please help me make this sale as such opportunities don’t come every day.”

Appellee answered the letter on March 10, 1938, as follows: “In re: 1168-12-Walvoord. Replying to your letter of March 7th. We will be glad to cooperate with you in making your sale, so will discount the balance of the note due us, on the basis of 6% to the respective maturities of the installments. The face amount of the note is now $225.00, as you of course know, and we will accept $202.20.” And, on March 21, 1938, continuing the correspondence, appellant wrote appellee, ,as follows: “Answering your letter of March 10th in which you offer to take $202.20 for above note of $225.00. The sale of this land is still hanging fire. The buyer doesn’t want to assume any debt and I don’t feel that I should stand all the extra expense of clearing it up. I did not figure on it in setting my price in our preliminary negotiations. The deal also involves a trade in which I receive a tract of some 60 acres. Won’t you cut your price to $112.50 thus going 50-50 with me? You have already received a nice commission on this deal. If I had been able to pay off during the first five years you wouldn’t have received anything after that and this 1½% during the second five years is almost velvet to you. Please wire me you will cut it to $112.50 and help me make a trade.”, which was answered by appellee on March 22, 1938, as follows: “Dear Sir: Your letter of yesterday was received this morning and it is with real regret that we must advise you that we can not grant your request to accept $112.50 in settlement of the note. Were it just this one case the matter would be different but you of course understand that we have great numbers of similar notes and yours is by no means the only request of that nature. Should we make such a material reduction in one case we in all fairness would have to do the same with all and you can readily see what would happen to our assets in a short time. We sincerely hope you can still put through your deal, since that is what you want to do, and are really sorry that we can not consistently grant your request.”

On May 24, 1938, appellant, renewing the correspondence, wrote appellee, as follows: “Gentlemen: Renewing the correspondence we had in March regarding the discounting of the above note. We have finally come to an agreement now to trade farms and since the buyer does not want to assume any debt, it is necessary that it be paid. You offered to discount the balance of this note at 6% to the different maturities of the remaining installments and will y.ou please use June 1st as the date to figure from or is $202.20 the sum mentioned in your letter of March 10th satisfactory? Please send release and draft for whatever it amounts to to the National Bank of Commerce, attention Geo. Miller, Cashier, Dallas, Texas, by June 1st, 1938. Will you please acknowledge this letter at once so that I may know and depend on this arrangement being carried out?”; and the negotiations were concluded by appellee’s letter to appellant, under date of May 26, 1938, as follows.: “Dear Sir: In re Loan No. 1168-12 Walvoord. Pursuant with the request contained in your letter of May 24, we have computed the amount due on your note for the original sum of $607.50 and find that the figure required to completely pay the note is $203.07 as of June 1, 1938. We maintain an office in Dallas, located in the Tower Petroleum Building, room 315, consequently, we are sending the note, release and an assignment to them with instructions to present the same to the National Bank of Commerce for payment. Trusting that this arrangement will be agreeable with you, we are, * *

It was stipulated that the above correspondence contained all the information that passed from appellant to appellee, and from appellee to appellant, concerning the terms of the sales agreement and concerning appellant’s request for prepayment of the interest note and release of the lien. So, on. June 1, 1938, appellant having obtained consent of Central Life Assurance Society (Mutual) to the prepayment of the principal note, all negotiations ended, the trade was consummated, appellant paying the principal note and obtaining release thereof, also paid appellee the $174.94 involved in this controversy, and thereafter instituted the present suit to recover it back, on the alleged ground that the payment was made under stress of a business necessity amounting to duress.

The court filed lengthy findings of fact giving the history of the case, the most material being that appellant did not make the payment to appellee under the force and stress of business necessity, but that the payment was made in order that appellant might avail himself of the opportunity to dispose of his land at an advantageous price, in excess of its market value; that appellee made no demand upon appellant for the payment; nor did appellant make any protest in regard to the payments. Having found that the payment was voluntary, the court denied appellant recovery, from which he appealed and assigned errors.

The undisputed facts showing that the payment was voluntary, we think the case was correctly decided. Duress, as that term is used in this connection, means constraint or pressure of such nature as to virtually rob one of his free agency, compelling acceptance of the alternative of either paying, or suffering great financial loss, or business disadvantage, 32 Tex.Jur. 733. We do not think appellant acted under any such compulsion in making the payment involved; on the contrary, we think it appears that the payment was voluntarily made as the result of negotiations initiated by him. In the course of negotiations, demands are frequently made, requiring certain things as conditions precedent to the consummation of the particular trade under consideration, as, in the instant case, Mr. Holmes, the proposed purchaser, required the land to be freed of all encumbrances by June 1,1938, and we think it obvious that compliance by appellant with these terms was necessary for the consummation of the sale of the land to Holmes. But even if payment of the unaccrued interest be considered a business necessity, such necessity arose, not from any demand made by ap-pellee, but from the requirements of Mr. Holmes, with whom appellant was negotiating. To entitle a party to recover money paid, even under circumstances of duress, the compulsion or coercion employed must be by the party to whom payment was made. 48 C.J. 753.

We conclude, therefore, that the judgment of the trial court was correct, hence overrule appellant’s second, motion for a new trial, and his request that the questions of law arising in the case be certified to the Supreme Court for adjudication, is denied.


author: SPEER, Justice.

text:
    BURTON v. ROBERSON.
    No. 14084.
    Court of Civil Appeals of Texas. Fort Worth.
    April 26, 1940.
    Rehearing Denied May 24, 1940.
    Winthrop Seley and John B. McNamara, both of Waco, for appellant.
    H. S. Lattimore, of Fort Worth, for ap-pellee.
   SPEER, Justice.

This appeal involves venue and the plea of privilege. It grows out of the same suit from which a similar appeal reached us in Central Motor Co. v. Roberson, 139 S.W.2d 287, decided March 8th, 1940.

Plaintiff Roberson originally sued Central Motor Company, a corporation, for damages growing out of an alleged false imprisonment, in which complaint was made that defendant, acting through its agent, M. (Red) Burton (appellant here),, falsely and wrongfully imprisoned plaintiff. Central Motor Company filed its plea of privilege with the Tarrant County District Court, where the suit was instituted. A hearing was had by the court, the plea of privilege was overruled, appeal was taken, and we affirmed that judgment.

Afterward, plaintiff Roberson amended his pleadings, alleging substantially the-same facts, and made Burton a party defendant, seeking a judgment against both defendants. After service of process of the amended pleadings, Burton filed his plea of privilege; it was controverted, a trial had, and his plea was overruled. This appeal is from that judgment.

The evidence shows that plaintiff was arrested and placed in jail in Tarrant County by City officers of Fort Worth, on Saturday or Sunday, February 25th or 26th, 1939. The Fort Worth officers acted upon the request of defendant Burton contained in a letter written by Burton on February 9th, 1939. Burton was Chief of Detectives of the City of Waco. The letter from Burton to the Fort Worth officers contained instructions to arrest plaintiff and hold him for the Waco officers. There were also expressions in the letter which were construed to mean that the Fort Worth officers were to get possession of a car and hold it for the Waco officers. The letter was not in evidence, but Mr. Burton testified that he wrote it and admitted its contents, when questioned about parts of it. Burton said he had telephoned the constable in Waco on February 9th, to file a •complaint and get a warrant, and when advised by the constable that he had the warrant, Burton said he wrote the letter; that he never did have the warrant in his possession. The warrant referred to by Mr. Burton was introduced in evidence, over objection of plaintiff, but it is unnecessary for us to pass upon the ruling of the court in admitting it. The warrant of arrest shows to be addressed, “To the Sheriff or "any Constable of McLennan County”, and bore date of February 9th, 1939. Burton said he arrested Roberson, took him from the City jail at Fort Worth and conveyed him back to Waco. He did not give the date of these acts, but other evidence indicates that it was Monday, February 27th, 1939.

The testimony of Mr. Clifton shows that he saw plaintiff in the City jail at Fort Worth on Sunday evening (February 26th) and went to Waco on the next day to arrange for a disposition of the case against Roberson; that' when Burton arriveA in Waco with Roberson, the title to the car was transferred to Central Motor Company, and the officers there agreed to dismiss the case; that he went with certain officers to the Justice Court and the court dismissed a case which was docketed against one “R. B. Robinson”, which had been filed that day. There was other testimony which shows that the “R. B. Robinson”, against whom the complaint was filed an„d dismissed, was a separate and distinct person from plaintiff.

It is contended by plaintiff here that there was no warrant issued on February 9th, 1939, for his arrest, and under which Burton claims to have instructed the arrest by Fort Worth officers. And furthermore, he insists that even if the one- above referred to had been issued and placed in the hands of Constable Casey at Waco, Burton, a Waco City officer, had no authority under that warrant to arrest plaintiff, nor to cause his arrest by the Fort Worth officers.

Article 223, Code Crim.Proc., provides: “A warrant of arrest, issued by any county or district clerk, or by any magistrate * * shall extend to any part of the State; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this State.”

The most that can be said of the warrant found in the record is, it purports to have been issued on February 9th, 1939, by a Justice of the Peace in McLennan County, and is directed “To the sheriff or any constable of McLennan County”. Neither of the officers to whom it was directed ever executed it or attempted to do so. It is not contended that the warrant was ever transferred by or from the officers to whom it was directed to either defendant Burton or to the Fort Worth officers. Nor is there any evidence that a warrant was ever issued for the arrest of plaintiff directed to any peace officer of Tarrant County. It was held in Little v. Rich, 55 Tex.Civ.App. 326, 118 S.W. 1077, that where a warrant for the arrest of a party was directed to the officers of Ellis county, and no warrant was issued to Grayson County, nor had any warrant been transferred to the officers of Grayson County,'who made the arrest without a warrant, constituted a wrongful arrest. The Code of Procedure discussed by the court in that case was the same as it now exists.

Defendant (appellant here) cites and relies largely upon what was said by the Supreme Court in Cabell v. Arnold, 86 Tex. 102, 23 S.W. 645, 22 L.R.A. 87; the warrant in that case was directed to the United States Marshal, and while he held the warrant, he telegraphed a deputy marshal to make the arrest. The deputy carried out his principal’s orders, without having the warrant in his possession. The U. S. Marshal was sued for false imprisonment.’ The provisions of the Code, as they existed, were discussed by the court and no recovery was allowed because the principal was authorized to do just what his deputy did. In-discussing the question, Judge Stayton, speaking for the court, in effect said: To show authority in an officer to -make an arrest under warrant, (1) it must appear that a warrant had been issued by a proper authority, commanding him (the officer) to make the arrest, and (2) the delivery of the warrant to the person who is commanded to execute it. The court’s holding was based upon these requisites. In the instant case, it affirmatively appears that the warrant relied upon by defendant for authority to make the arrest was neither directed to him nor was it ever delivered to him by the one to whom it was directed. These distinguishing features lead us to believe that the rule there announced is not controlling here.

Defendant has filed in this court a reply to plaintiff’s brief; in this reply brief, as well also in his original brief, it is contended that plaintiff has misjudged his cause of action. That if he has any right of action, it is for malicious prosecution and not for false imprisonment, and further that an action for malicious prosecution would only lie in McLennan County. We find in the reply brief this frank statement: “If the facts before the court show this to be a case of false arrest, then the trial should be in Tarrant County; but if the facts here make this a suit for malicious prosecution, it should be tried in McLennan County.”

We find no fault with the foregoing assertion. The elements of an action for malicious prosecution do not appear in the pleadings nor in the evidence, other than insofar as the same facts would enter into both actions. Plaintiff has bottomed his suit upon false arrest or false imprisonment, and must rely thereon for recovery, when the case is tried upon its merits. We may look to plaintiff’s pleadings in determining the nature of his cause of action, more especially when it is made a part of the controverting plea, as was done in this case. Sims v. Trinity Farm Construction Co., Tex.Civ.App., 28 S.W.2d 856.

Plaintiff’s evidence, if believed by the court, was sufficient to make a prima facie case of false imprisonment against defendant, which, under exception 9, Article 1995, R.C.S., was sufficient to support the court’s judgment overruling the plea of privilege. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

No jury was demanded upon’ the trial from which this appeal is prosecuted and the court determined the fact issues. The defendant Burton being a party to the suit, his testimony raised issues of fact for determination by the court, sitting in lieu of a jury. The court had the duty of weighing all of the ‘ testimony and to give shell credit to the witness as, in his judgment, he was entitled to. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916. The trial court having resolved the fact issues against the contentions of defendant, we are without authority to revise his findings thereon, when there is evidence of a substantial nature to support it, such as we find in this case. 33 Tex.Jur., sect. 771, p. 1102; Corn v. First Texas Joint Stock Land Bank, Tex.Civ.App., 131 S.W.2d 752, writ refused, and Central Motor Co. v. Roberson, Tex.Civ.App., 139 S.W.2d 287, supra.

As indicated in the first part of this opinion, the last-cited case involves the same acts by defendant Burton as complained of in the instant case. He is the alleged agent of Central Motor Company, his co-defendant in this case; it was because of his acts and the disclosed relationship between, him and his alleged principal that the latter was held to be suable in this action, in Tarrant County. By the amendment of plaintiff’s pleadings he is -made a joint tort-feasor with his alleged principal. These things are disclosed by the pleadings under the venue issues. We can see no good reason, in law or equity, if the principal be held in the Tarrant County district court, why the alleged offending agent should not likewise be held in that court to defend with his co-defendant plaintiff’s suit under exception 4 of Article 1995, R.C.S. While that exception applies especially to two or more defendants residing in different counties and all are to be held where any one of them may be sued, yet it would seem a useless thing to require plaintiff and defendant Central Motor Company to litigate the issues in Tarrant County, and then for plaintiff and defendant Burton to litigate the same issues in McLennan County. The action against these defendants is not severable. Hickman v. Swain, 106 Tex. 431, 167 S.W. 209.

Plaintiff did not claim venue in his pleadings, under exception 4, Article 1995, R.C.S. We had not decided the question of venue between plaintiff and Central Motor Company at the time this case was tried below. Where, as in this case, the pleadings and evidence disclose one of the statutory exceptions to venue, the court may consider it in passing upon the plea of privilege. In Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533, it was held that where plaintiff pleads facts relied upon to support venue, even though classified by him under the wrong exception, he was entitled to have the issue determined under the facts plead and proved.

For the reasons stated, we see no error in the judgment and it should be affirmed. It is so ordered.