author: PRICE, Chief Justice.

text:
    KENNEDY et al. v. SHIPP et al.
    No. 3879.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1939.
    Rehearing Denied Dec. 21, 1939.

      Noble E. Hendrickson, of Evansville, Ind., for plaintiff in error.
    Jones & Jones, of Marshall, for plaintiff in error on rehearing.
    Clower & Bezoni, of Tyler, Gordon R. Wellborn and H. H. Wellborn, both of Henderson, Jack Thompson, of Corsicana, and V. W. McDavid, of Henderson (Murph Wilson, of Tyler, of counsel), for defendants in error.
   PRICE, Chief Justice.

This is an action in trespass to try title instituted in the District Court of Rusk County, Texas, by defendant in error, L. M. Shipp, against plaintiffs in error, Eugene Kennedy and Burnett Price, and against Maxey Wilson, W. L. Derden Estate and Will Thompson, defendants in error, and some- one hundred and thirty other defendants. The subj ect matter involved is a one-eighth royalty interest in two tracts of land in Rusk County containing an aggregate of something over 140 acres. The interest in certain moneys derived from this royalty interest is also in question herein.

Plaintiffs in error, Kennedy and Price, together with defendant J. M. Davenport, filed joint answer to defendant in error Shipp’s said action. This answer consisted of a general demurrer, a general denial, and plea of not guilty. Plaintiffs in error then set up a cross action as against defendants in error L. M. Shipp, Maxey Wilson, W. L. Derden Estate, and Will Thompson, and against several other defendants in the suit. In such cross action plaintiffs in error Price and Kennedy denominated themselves as cross-plaintiffs and their adversaries as cross-defendants. This answer and cross action was filed on the same date the cause went to trial. Cross-plaintiffs therein claimed title to the l/14th interest inherited by Naoma Williams in and to the- oil and gas and other minerals in and under the lands described in plaintiff’s petition subject to an oil and gas lease theretofore owned by Humble Oil & Refining Company and a portion of the undivided l/14th interest inherited by Esma Ferguson, same being subject to the same oil and gas lease. Cancellation was sought of a certain deed theretofore executed by - Naoma Williams to W. A. McLeod, and in the event same was not cancelled, for the reformation thereof. Cancellation was further sought of a certain deed executed by Naoma Williams to R. A. Satterfield of date January 24, 1931, and in the alternative sought the reformation thereof.

Cross-plaintiffs, as to the claimed interest derived by mesne conveyances from Esma Ferguson, set up their alleged title thereto; sought cancellation of a deed executed by Esma Ferguson and husband to R. A. Satterfield; in the alternative for the reformation thereof; sought cancellation or reformation of other deeds executed by Esma Ferguson purporting to convey interest in her undivided. interest in and to the oil and gas and other rpinerals under the described lands; and sought an accounting for oil and gas taken under and by virtue of the lease aforesaid.

Defendants in error L. M. Shipp and Maxey Wilson did not file answer to this cross action, but appeared and participated in the trial of the cause. Defendants in error W. L. Derden Estate and Will Thompson filed answer to said cross action consisting of a general demurrer, special exceptions, plea of not guilty, and a special plea that they were innocent purchasers.

The trial was before the Court. Judgment was announced on June 23, 1938. This judgment decreed the various interests of the parties in the oil and gas under the land described and ordered the distribution of a fund of about $50,000 theretofore paid into court by the owners of the oil and gas lease to which the property was subject. The judgment further decreed that cross-plaintiffs Kennedy and Price, plaintiffs in error here, take nothing by their cross action and recognized no interest in the lands or the minerals thereunder in cross-plaintiffs. The said cross-plaintiffs in due time filed motion for a new trial, which was overruled. Kennedy and Price then filed an appeal bond, but failed Jo file transcript and statement of facts. Defendants in error here sought to have the cause affirmed on certificate, but this relief was denied. Plaintiffs in error then perfected a writ of error, and the case is here for review.

The statement of facts consists of three ■volumes, the transcript of over 200 pages. A Master in Chancery was appointed, and there were various exceptions to his report. On motion of the plaintiffs in error the court made up and filed findings of fact and conclusions of law.

As recited in the judgment, the only matter in controversy in the cause was the ownership of the oil, gas and other minerals in, on, under and that have been produced to the ⅛ oil and gas royalty accruing under an oil and gas lease, together with the ownership and value of the royalty oil that has been produced from the land described in plaintiffs petition.

It was agreed on the trial between plaintiffs' in error here and defendants in error that Sam Williams, a negro, was the common source of title. The controversy is narrowed here to the respective interests inherited from Sam Williams by Na-oma Williams and Esma Ferguson. It is further agreed that Naoma Williams, a negro, inherited an undivided l/14th interest in the property, that is, a 10.13 acres interest, and Esma Ferguson inherited exactly the same amount of interest. Plaintiffs in error and defendants in error claim by mesne conveyances the interests asserted here from Naoma Williams and Esma Ferguson. Plaintiffs in error, in substance, first assert that defendants in error L. M. Shipp and Maxey Wilson, appearing and participating in the trial and not filing answer to their cross action, were not entitled to judgment against them. On the other hand, they were entitled to a judgment on the pleadings for the relief sought against said before named defendants in error. Plaintiffs in error never sought from the trial court a judgment nihil dicit. They undertook to prove the allegations of their cross action. The named defendants in error were not cited to answer said cross action arid same was filed on the day that the trial of the case opened. It does not appear that leave to file the cross action was obtained. This, we believe, was waived by failure to file motion to have same stricken. The participation of the defendants in error in the trial subsequent to the filing of the cross action constituted, in our opinion, an appearance thereto. Evans v. McNeill, Tex.Civ.App., 41 S.W.2d 268.

That plaintiffs in error were entitled to a judgment on the pleadings was not their theory below. The case was tried on the theory that the burden was on the plaintiffs to establish their allegations, and that the defendants in error had at least a right to join issue with them thereon. We think that they are bound here by that theory. See Rawleigh Medical Co. v. Mayberry, Tex.Civ.App., 193 S.W. 199; Shaw v. Whitfield, Tex.Civ.App., 35 S.W.2d 1115; Texas Employers’ Ins. Ass’n v. Marsden, 131 Tex. 256, 114 S.W.2d 858.

Let us now take up the disposition of the l/14th interest in the property vested by inheritance in Naoma Williams. It is to he borne in mind that Naoma inherited a l/14th interest in the surface and a l/14th interest in the oil and other minerals underlying the entire land; that same was ■subject to an oil and gas lease reserving to the lessor and his successors a ⅛ royalty interest. On the 3rd day of January, 1931, Naoma executed conveyance to W. A. McLeod. A determination of the extent of the interest conveyed by this deed will go far to determine a correct solution of this branch of the case. Omitting the caption, the metes and bounds description, and the .acknowledgment, the portions of this deed .deemed material are here set forth:

“That I, Naoma Williams, of Rusk County, Texas,' for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid by W. A. McLeod hereinafter called grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said grantee an undivided ⅛ interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Rusk County, Texas, to-wit:
“An undivided l/14th interest in and to all that certain tract or parcel of land situated in Rusk County, Texas, being two tracts of land of the D. Clark Survey in Rusk County, Texas. * * *
“It is the intention of the said Naoma Williams to convey h'is undivided l/14th interest in said land or all of the said interest, as it appears in all the lands he owns in Rusk County, Texas.
“Together with the right of ingress and egress at all times for the purpose of mining drilling and exploring said land for oil, gas and other minerals and removing the same therefrom.
“Said land being now under an oil and gas lease, executed in favor of-now owned by Humble Co. It is understood and agreed that his sale is made subject to the terms of said lease, but covers and includes ⅛ of all of the oil royalty, and gas rentals or royalty due and to be paid under the terms of said lease insofar as it covers the above described property.
“It is understood and agreed that ⅛ of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease. is to be paid to the said grantee and in event that the above described lease for any reason ■ becomes cancelled or forfeited, then and in that event an undivided ⅛ of the lease interest and all future rentals on said land for oil, gas and other minerals privileges shall bé owned by said grantee, owning ⅛ of all oil, gas and other minerals in and under said lands, together with ⅛ of interest in all future rents.
“To have and to hold the.above described property, together with all and singular the rights and appurtenances thereto .in anywise belonging unto the said grantee herein, his' heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said grantee herein, heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness my hand this the 3rd day of January, 1931.
“Naoma Williams.”

This deed was filed for record on the -day of January, 1931.

The defendants in error claim through mesne conveyances under this deed as to the Naoma Williams’s interest. Plaintiffs in error claim under deeds from Naoma Williams subsequent to the execution, delivery and filing for record of the above copied deed.

If this deed is construed in accordance with the contention of defendants in error, unless same is set aside or reformed, this branch of the case was properly decided as to the interest inherited by Naoma Williams. If it were incorrectly construed or set aside or reformed, the plaintiffs in error aré vested with some of the interest formerly vested in Naoma Williams.

The primary purpose in the construction of the deed is to arrive at the intention of the grantor. The intention in question here is as to the interest conveyed by the deed. If this intention can be determined, the expression of it construes the deed in this respect. Both parties have referred to the cases of Sun Oil Co. v. Burns et al., 125 Tex. 549, 84 S.W.2d 442, and Sun Oil Co. v. Bennett et al., 125 Tex. 540, 84 S.W.2d 447. These two cases, together with the authorities cited, we think aptly and correctly state the principles to be considered in the construction of the deed, and same are in point as to several of the issues herein involved. Without quotations from the opinions, our subsequent construction of the two instruments involved will be based largely on these two cases.

There is dealt with here the extent of an undivided interest. All that the instrument purports to convey is an undivided interest. If the amount or extent of the undivided interest sought to be conveyed cannot be determined, the instrument' is void and of no effect. W. T. Carter & Bros. v. Ewers, Tex.Com.App., 131 S.W.2d 86, 123 A.L.R. 908, and authorities there cited. The intent must be derived from the instrument itself. In other words, there must be a basis in the terms of the deed for any construction placed thereon, even though extrinsic evidence be admissible to aid in the construction. Carter Bros. v. Ewers, supra.

On the other hand, when a deed has been executed in the manner required by law, every presumption should be indulged that some interest thereby passed. Coker v. Roberts, 71 Tex. 597, 9 S.W. 665. The intent is to be arrived at without fine technical or mechanical rules of construction if the intent can be made to appear from the instrument. Technical rules are resorted to only when there is no other means. Sun Oil Co. v. Burns et al., supra, and authorities there cited.

At the time of the execution of the deed in question ⅞ of the mineral estate underlying the surface of the land was vested in the owner or owners of the mineral lease. The other ⅝ was vested in the lessor or his successor in title. In this ⅛ reserved interest Naoma Williams had an undivided l/14th interest. The granting clause purports to convey “an undivided ⅝ interest in and to all of the oil, gas and other minerals in and under * * * an undivided l/14th interest in and to,” etc., then the land is described, and then immediately follows: “It is the intention of said Naoma Williams to convey his undivided l/14th interest in said land or all of the said interest as it appears in all the lands he owns in Rusk County, Texas.” If there was any ambiguity in the preceding parts of the deed, this clause seems to us to make it the express, unmistakable intention that the conveyance includes the entire portion of the royalty interest vested in him. Noir do we think the two other paragraphs in the deed tend to in any way cast doubt on this construction, but rather tend to confirm same.

If our holding is correct that the plaintiffs in error were not entitled to a judgment nihil dicit against defendants in error Shipp and Wilson, there remains one other question on this branch of the case. This question is: whether, under the undisputed evidence, that as against defendants in error Shipp and Wilson plaintiffs in error were entitled to a cancellation or reformation of this deed. The trial court sustained the validity of this deed and refused to reform same.

Leaving aside the question of innocent purchaser, the burden was upon plaintiffs in error to establish by a preponderance of the evidence the existence of fraud or mistake. Sun Oil Co. v. Bennett, supra.

To establish this issue plaintiffs in error relied almost entirely on the testimony of Naoma Williams. That witness testified in substance that McLeod, the grantee in the deed, approached him and told him he wanted to buy a little of his royalty; that he meant by that about 1.27 of an acre. Naoma further said he knew he owned something over a 10-acre royalty interest; that McLeod prepared the deed. Further, that he could read, but not very good. He said he looked over the deed a little, but that he did not see what is called here the “intention clause,” and same was not explained to him, and that witness did not intend to convey all of his royalty interest, but only about 1.27 of an acre thereof. In regard to the consideration paid, that same was $125; that $25 went to pay for removing his disabilities.

Naoma Williams was the only witness testifying on these points. Opposed to his testimony was the deed itself and the fact that he had an opportunity to read same. The transaction must have consumed some time. It is shown by the record that the date of the removal of his disabilities was September 30, 1930, the date of the deed January 3, 1931. Under his own testimony he had not known McLeod previous to this transaction. He had this interest in the'matter: If he knew the legal effect of his deed, his subsequent conveyances would place him in a bad light. In one or more of his subsequent deeds there is a warranty clause upon which he would be liable to the extent of the consideration received.

We think the amount of credit to be given the testimony of this witness was for the trial court, and the action taken thereon was final. Our holding renders it unnecessary to discuss the question in regard to the status of defendants in error as innocent purchasers. It is to be noted that the McLeod deed was promptly recorded and plaintiffs in error acquired their interest subsequent to the record of the deed.

Esma Ferguson inherited from her father, Sam Williams, an undivided l/14th interest in the property involved herein. Expressed in another way, 10.13 acres. On this branch of the case the controversy is further narrowed in that all parties concede the validity of the deed by Esma Ferguson dated January 23, 1931 to R. A. Sat-terfield conveying 5.325 acres, leaving in dispute 7.5975 royalty acres. Here, as in the case of Naoma Williams’ interest, the controversy hinges around the construction of a deed. The following are the essential parts of such deed, omitting caption, metes and bounds description and acknowledgment:

“That we, Othella Ferguson and wife, Esma Ferguson, of the County of Rusk, State of Texas, have and by these presents do grant, bargain, sell, convey, set over and assign and deliver unto B. F. Carroll, the following, to-wit:
“1/112 (one hundred twelfth) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in-County, Texas, to-wit: * * *
“Together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom.
“And said above described lands being now under an oil and gas lease originally executed in favor of Humble Oil Ref. Co. and now held by them, it is understood and agreed that this sale is made subject to the said lease, but covers and includes 1/12 of all of the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.
“It is understood and agreed that none of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said B. F. Carroll, and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interest and all future rentals on said land for oil, gas and other minerals privileges shall be owned jointly by B. F. Carroll et al., and- each owning their proportionate interest in all oil, gas and other minerals in and upon said land, together with like interest in all future rents.
“This sale is made for and in consideration of the sum of Ten Dollars and other valuable considerations Dollars cash in hand paid, the receipt of which is hereby acknowledged.
“To have and to hold the above described property together with all and singular the rights and appurtenances thereto in anywise belonging unto the said B. F. Carroll, his heirs and assigns forever, and -do hereby bind ourselves, heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said B. F. Carroll, his heirs and assigns forever against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness our hands this the 29th day of January, A. D. 1931.
“Othella Ferguson
“Esma Ferguson”
If this deed, which was duly recorded January 31, 1931, conveys to the grantee all of the interest of Esma Ferguson, unless it be cancelled or reformed, the case is ended in favor of defendants in error Will Thompson and W. L. Derden Estate. Plaintiffs in error claim under deeds subsequent to the execution, delivery and recording of the above copied deed. Much of what has been said in regard to the Naoma Williams’ deed applies to the construction of the deed in question. Esma Ferguson’s interest in the ⅛ royalty was l/14th thereof, which equals l/112th interest in the entire royalty interest reserved in the lease. Likewise, there was vested in Esma Ferguson an undivided interest in the reversion as to the 7/8ths working interest. Part of these interests she had conveyed away by the Satterfield deed. The paragraph alleged by plaintiffs in error to cause a conflict in the terms of the deed is the one stating in substance that the interest conveyed is the royalty interest and “includes l/12th of all of the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.” Plaintiffs in error, as we understand their contention, seek to construe the fractional interest in said paragraph as referring to a fractional interest in the fractional interest grantor had in the royalty interest. There are no such words used in the paragraph. In truth and in fact, in plain and unmistakable language it sold all interest, instead of “payable to me.”

If such words were imported unto the deed, it would amount to a reformation thereof by construction. Carter Bros. v. Ewer, supra. A construction of this character would violate the statutes of fraud. See Art. 1288, R.S. 192S.

It is 'further contended that we should construe the l/12th in this paragraph to read l/112th in order to make the same harmonious with the 1/112th interest recited in the granting clause. This we cannot do. Art. 1288, R.S. 1925; Carter Bros. v. Ewer, supra.

It seems to us that construing the paragraph in connection with the granting clause that it renders it unmistakable that the 1/112th interest mentioned in the granting clause is the royalty interest and the entire royalty interest owned by the grantor. It is true that the entire royalty interest was not vested in the grantor, she having conveyed part of that in the Satterfield deed. l/12th includes l/14th. To the extent of grantor’s interest the deed was effective. This construction seems to us to harmonize all parts of the deed. Under such construction there is no conflict between the granting clause and the quoted portion of the deed. If this statement be not strictly correct, it limits the interest conveyed to that stated in the granting clause. We adopt the construction that the deed conveyed all the interest in the royalty vested in Esma Ferguson on the date of the deed.

We come now to the question as to the reformation of the deed on the ground of mistake. There can be no question but that all rights in this respect that plaintiffs in error have are derivative from Esma Ferguson. In order to reform the deed it was incumbent on the plaintiffs to show what property was agreed to be conveyed, and that there was a material mistake made by the parties in expressing this intention in the deed.' Sun Oil Co. v. Bennett, supra. The trial court found against the plaintiffs in error on this issue. If there was evidence to sustain this finding all parties are bound thereby. The burden was upon plaintiffs in error to establish such mistake and the real intent of the parties.

The deed in and of itself is strong evidence that it represented the true intent of the parties. There is no evidence of fraud or overreaching in procuring this deed. Grantee Carroll said that he did not think he was to get all of the interest of Esma Ferguson under the deed. It does not appear that he knew what her interest was at the time. Witness further said that he supposed there was some miscalculation as to the l/12th .interest appearing in the deed. Perhaps there was. It might have been that it was intended that l/12th read l/14th. Esma Ferguson and her husband testified as to what they intended to convey. Their testimony was on the whole rather vague and indefinite. A careful consideration of all of the evidence on this point leads to the conclusion that the implied finding of the trial court that the evidence was insufficient to justify the reformation of this deed as sought was the proper disposition of the issue. In any event, it is clear to us that we would not be justified in setting same aside.

The judgment is affirmed.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    WILLIAMS v. SINCLAIR-PRAIRIE OIL CO. et al.
    No. 5318.
    Court of Civil Appeals of Texas. Texarkana.
    June 15, 1939.
    Rehearing Denied Nov. 30, 1939.

      C. E. Bryson, of Houston, King & Wheeler, of Texarkana, and Wynne & Wynne, of Longview, for appellant.
    Paul A. McDermott and Vernon F. Hil-lery, both of Fort Worth, W. H. Sanford and Conan Cantwell, both of Dallas, Walter H. Walne, of Houston, Edward H. Chandler, of Tulsa, Okl., Baker, Botts, Andrews & Wharton, of Houston, H. P. Smead, of Longview, A. E. Groff, of Houston, Thompson, Mitchell, Thompson & Young, Truman Post Young, Calvin A. Brown, and Thomas L. Croft, all of St. Louis, Mo., and Bramlette & Levy, Merritt H. Gibson, and R. S. Wyche, all of Longr-view, for appellees. '
   JOHNSON, Chief Justice.

This suit was filed by appellant, Elizabeth Williams, community survivor of the estate of herself and her husband, John R. Williams, an insane person, against ap-pellees, Sinclair-Prairie Oil Company and others. Plaintiff’s petition seeks in a direct attack and in the nature of a bill of review to set aside and to cancel a judgment rendered March 31, 1932, in the District Court of Gregg County in cause No. 7870, styled N. E. Williams as Next Friend of John R. Williams v. W. H. Winn et al.; and to set aside and cancel certain oil and gas leases and mineral deeds executed by John R. Williams and wife, Elizabeth Williams; and to recover title and possession of the mineral interest claimed by defendants under said judgment and said conveyances; and for an accounting of the oil and gas produced from the land by defendants. A general demurrer to plaintiff’s petition was sustained. She declined to amend and the suit was dismissed. Plaintiff has appealed. The parties will be referred to as aligned in the trial court, plaintiff and defendants.

Plaintiff’s petition to which the general demurrer was sustained, and with respect to which action of the trial court error is assigned, alleges in substance that John R. Williams was adjudged insane by the County Court of Gregg County in 1909. That there has been no subsequent proceeding adjudging John R. Williams restored to sanity as provided by R. S. Articles 4282, 4283, and 4284, Vernon’s Ann.Civ.St. arts. 4282-4284 (referred to as the restoration statute), but that said judgment declaring John R. Williams insane has at all times since its rendition and is now in full force and effect. That John R. Williams and plaintiff, Elizabeth Williams, were lawfully married in 1917, ■since which time they have lived together as husband and wife. That in 1929 they acquired as their community property the land here involved, consisting of 97.6 acres situated in Gregg County. That said land has constituted their homestead continuously since the date of its purchase. That in the latter part of 1930 and first part of 1931 John R. Williams and wife, Elizabeth Williams, executed certain mineral conveyances consisting of oil and gas leases and the mineral deeds purporting to convey all the mineral interests in said land. The petition describes the several instruments. That subsequent to the execution of said conveyances one N. E. Williams on May 23, 1931, filed his petition in the District Court of Gregg County seeking to sue in the alleged capacity “as a friend of the court” and presenting matters relating to the interest of John R. Williams and Elizabeth Williams but not alleging any disability on the part of either of them to sue for themselves, or any authority from them or from any source to prosecute the suit. That the suit was styled N. E. Williams v. W. H. Winn et al., and numbered 7870 on the docket of said court. That on October 5, 1931, said N. E. Williams filed his first amended original petition in said cause, wherein he sought “as next friend and father of John R. Williams” to further prosecute the action on behalf of John R. Williams alone. That on February 17, 1932, N. E. Williams “as next friend and father of John R. Williams” filed his third amended original petition in said cause No. 7870. Said third amended original petition is set out verbatim in plaintiff’s petition in the present suit. The defendants in said cause No. 7870 are the claimants of mineral interests under the conveyances executed by John R. and Elizabeth Williams and are defendants in the present suit. N. E. Williams and John R. Williams are also made parties defendant in the present suit. Said third amended original petition, on which cause No. 7870 was tried, alleges in substance, an action to set aside and cancel the above-mentioned oil and gas leases and mineral deeds executed by John R. Williams and wife, Elizabeth Williams, and to recover title and possession of said land and for damages, on the ground that John R. Williams was insane at the time of executing said conveyances. It alleges that John R. Williams has continuously been “up to and including this date” insane. In the alternative it alleges that if the plaintiff, N. E. Williams, as next friend of John R. Williams, be mistaken in his allegation that John R. Williams was insane at the time and on the dates he executed said conveyances, then and in that event said John R. Williams and his wife, Elizabeth Williams, “join this suit and bring this suit (No. 7870) in their own name for themselves and plead as follows : * * * ” Said petition (in cause No. 7870) then alleges for such alternative plea that John R. Williams was “weak-minded and weak-willed” at the time of signing said conveyances and that the defendants were guilty of fraud in procuring their execution by him.

Plaintiff’s petition in the present suit further alleges that all defendants in No. 7870 answered said third amended original petition filed in said case; that said answers in addition to pleas of general demurrer and pleas of not guilty contained cross actions praying for affirmative relief that they have judgment quieting their title to the minerals claimed by them under said conveyances executed by John R. and Elizabeth Williams; that no notice or process was issued or served upon said cross actions, but that the attorneys representing the plaintiff, N. E. Williams, as next friend of John R. Williams, waived such notice and entered “the appearance of John R. Williams acting by and through his next friend, N. E. Williams.” Plaintiff’s petition in the present suit further alleges that on March 31, 1932, a judgment was entered in said cause No. 7870. The judgment in said cause, which is the judgment here sought to be set aside and can-celled, is set out verbatim in plaintiff’s petition in the present suit. Said judgment recites that “plaintiff John R. Williams, appeared by his next friend, N. E. Williams; and the plaintiffs John R. Williams and wife, Elizabeth Williams appeared in their own behalf and by counsel”; that the defendants, naming them, appeared in person and by counsel; that a jury was waived, and that all parties announced ready for trial; that after the pleadings had been read it was announced to the court that a settlement had been agreed upon subject to the approval of the court, as evidenced by a written contract previously signed by all parties and filed in the papers; that thereupon the contract was presented in evidence and considered by the court. The contract is set out in full in the judgment. It shows to have been signed by John R. Williams and wife, Elizabeth Williams, and by N. E. Williams as next friend for John R. Williams, and by each of the defendants. The contract describes the particular leasehold and mineral interests claimed respectively by each of the defendants. It agrees that certain named defendants shall pay into the treasury of the court specific sums of money totaling $9,000. “to or for the account 'of John R. Williams and wife, , Elizabeth-Williams.” The agreement further recites that “by judgment in this cause there shall be vested in N. E. Williams, but in trust for John R. Williams and wife, Elizabeth Williams, an undivided ½6 interest in and to the oil, gas and other minerals in and under the 81.2 acres of land, more or less, hereinbefore described, subject to the oil and gas mining leasehold estate therein of Sinclair Oil & Gas Company, and covering and including an undivided ¼0 part of the royalties of ⅛ in the oil and gas that may from and after this date be produced and saved from said land.” That a ⅛ interest in the minerals in and under 16.2 acres of land shall be vested in N. E. Williams in trust for John R. Williams and wife, Elizabeth Williams, subject to the leasehold estate of the Lion Oil & Refining Company; that the leasehold estate and remaining mineral interest in said land shall be vested in certain named defendants. The judgment in cause No. 7870 after reciting the agreement above mentioned continues with the recital that after said agreement had been heard and considered by the court “it was ordered by the court that all parties proceed with the evidence bearing upon all issues made herein by all the pleadings on file. After full consideration of the evidence and stipulation and contract between the parties thereto, the court finds as follows: * * * that-John R. Williams was sane and of sound mind and fully understood the import, meaning and effect of his acts” on the several dates named- in the latter part of 1930 and first part of 1931, on which he executed the several conveyances mentioned; and that “their execution was not procured by fraud. That the contract of settlement was fair and should be approved.” The judgment decrees “that plaintiff, John R. Williams suing herein through his next friend N. E. Williams, and the said John R. Williams and wife, Elizabeth Williams, suing herein in their own behalf, take nothing by reason of this suit.” It further decrees that said ½6 mineral interest in the 81.2 acres and said ⅛ interest in the 16.4 acres be vested in N. E. Williams in trust for John R. Williams and Elizabeth Williams; and that the title thereto be quieted in said N. E. Williams against the defendants. It vests the remaining mineral interests in the land in the defendants and quiets the title thereto in them as prayed for in their several cross-actions. The judgment decrees that the-$9,000 stipulated in the agreement to be-paid into the registry of the court by defendants for the account of John R. Williams and Elizabeth Williams, shall be paid-over to the clerk of the court, “subject to-the further orders of this court and when said respective sums of money have been paid over by the respective parties herein-before adjudicated to pay the same to the clerk of this court, said payment shall be deemed a full and complete satisfaction against the parties hereinbefore adjudged to make such payments.” The judgment further recites that evidence was introduced “touching upon the legal services rendered to the said N. E. Williams as next friend of John R. Williams and to the said John R. Williams and Elizabeth Williams, his wife, in this cause, and the $xpendi-tures made in connection therewith by counsel by plaintiffs.” The court thereupon finds that $4,500 for attorneys’ fees and $626.63 for expenses are reasonable sums to compensate said attorneys. Whereupon judgment was entered in favor of said attorneys, naming them, for $5,126.63, ordering and decreeing that same be paid out of the $9,000 recovered by John R. and Elizabeth Williams. The judgment decrees that the costs of suit be taxed against the defendants and that execution may-issue for costs.

Plaintiff’s petition in the present suit continues with further allegations to the effect that John R. Williams is and has-continuously been since 1909 insane in fact, and that during all of which time, as the result of said judgment of the county court declaring him insane, the status of John R. Williams was and is that of an insane person as a matter of law. The petition in: substance further alleges that the evidence presented for the court’s hearing 'in cause No. 7870 was for the purpose of supporting an agreed judgment according to the-terms of the purported contract previously entered into by the parties and that evidence was not offered for the purpose of actually determining issues between the adr verse parties as raised by the pleadings.. The petition states a number of alleged legal reasons why, it is contended, that said conveyances and the judgment in cause No. 7870 are void, or in the alternative, voidable and should be set aside.

Opinion.

Plaintiff’s propositions presenting to this court her contentions as to the sufficiency of her petition, against which the general demurrer was sustained, in stating a cause of action, may for convenience be grouped into two classes: First, the propositions contending that the oil and gas leases and mineral deeds executed by John R. Williams and wife, Elizabeth Williams, sought to be cancelled, are void or voidable; second, the propositions contending that the judgment in cause No. 7870 is void, or voidable. The petition unquestionably states a cause of action authorizing cancellation of said conveyances and recovery of the minerals should the judgment in cause ■No. 7870 be held void, or be set aside. So, it will only be necessary to discuss the second group of propositions, those attacking the validity of the judgment in cause No. 7870.

It is contended that the Constitution, Article S, Section 8, Vernon’s Ann. St., grants to the district court no original jurisdiction over an insane person, except through.the medium of a guardian or other representatives appointed by the county court, wherein said section of the Constitution provides: “The District Court shall have * * * original jurisdiction and * * * control over executors, administrators, guardians and minors under such regulations as may be prescribed by law.” And that exclusive, original jurisdiction over an insane person is vested in the county court by Article 5, Section 16, of the Constitution, wherein it is provided: “The County Court shall have the general jurisdiction of a Probate Court” and they “shall * * * appoint guardians * * * ” and “they shall * * * transact all business' appertaining to * * * idiots, lunatics, persons non compos mentis.” Hence, it is contended that R.S.ArticleT994, insofar as it attempts to confer original jurisdiction upon the district court over an insane person through the medium of a “next friend” is without constitutional authority. That the county court of Gregg County in 1909 in the exercise of its exclusive original ' jurisdiction having acquired custody and charge of John R. Williams and adjudged him insane, it thereby as a matter of law fixed his status as an insane person and ward of said court, and vested in said court exclusive authority to appoint a guardian of and to “transact all business appertaining to” said ward, and divested John R. Williams of lawful authority to contract or be contracted with, or to sue or be sued, except through the medium of a guardian appointed by the said court; that since there has been no subsequent proceeding adjudging John R. Williams restored to sanity as provided by the restoration statutes, such status of insanity and such wardship continues as a matter of law. Therefore, it is contended, the judgment in cause No. 7870 is void, because the district court had no constitutional power to acquire the original jurisdiction which it attempted to exercise over the person and property of John R. Williams, through the medium of a “next friend.” The exact question here raised as to whether an insane person may maintain a suit by a next friend was certified to the Supreme Court by the Court of Civil Appeals at Fort Worth, and the Supreme Court answered the question in Holland v. Couts, 100 Tex. 232, 98 S.W. 236, 237, as follows: “We are of the opinion that the case was properly prosecuted on behalf of the plaintiffs, who were non compos mentis, by a next friend. We approve the reasoning by which the court of Civil Appeals reached that conclusion, in their opinion [Holland v. Couts, 42 Tex.Civ.App. 515, 98 S.W. 233]. The cases of Holzheiser v. Railway Co. [11 Tex.Civ.App. 677], 33 S.W. 887, and Hughey v. Mosby [31 Tex.Civ.App. 76], 71 S.W. 395, in the latter of which a writ of error was refused by this court, establish the doctrine, that a suit in the district court by a next friend in behalf of an insane person is properly brought.” This decision was rendered in 1906, prior to the amendment of Article 1994 by the Acts of 1909, page 176. The original enactment, Acts of 1893, page 3, in force to 1909, applied to minors oply. The 1909 amendment included “idiots, lunatics, and persons non compos mentis” in the statute. So, the 1909 amendment in this respect merely enacted a rule of law already declared by our Supreme Court to be in force. The following are additional decisions, some rendered prior and some rendered subsequent to the 1909 amendment of Article 1994, recognizing the rule that an insane person may sue and be represented by a next friend. Pelham v. Moore, 21 Tex. 755, 756; Edwards v. Edwards, 14 Tex.Civ.App. 87, 36 S.W. 1080; Mills v. Cook, Tex.Civ.App., 57 S.W. 81; Williams v. Sapieha, Tex.Civ.App., 59 S.W. 947; Schneider v. Rabb, Tex.Civ.App., 100 S.W. 163; Lindly v. Lindly, Tex.Civ.App., 109 S.W. 467, Id., 102 Tex. 135, 113 S.W. 750; Holland v. Riggs, 53 Tex.Civ.App. 367, 116 S.W. 167. The provisions of R.S.Article 1994 are here involved insofar only as they provide that an insane person may sue and be represented by next friend, and that such next friend or his attorney of record may with approval of the court compromise such suit and agree to a judgment. The above cited authorities appear to conclusively affirm the question that the district court has authority to hear and determine the suit of an insane person represented by a next friend. We think that the authority of the court to entertain the cause of action would include the power to hear and determine a compromise as well as a contest of the matters over which the exercise of its jurisdiction has been invoked by the pleadings of the parties. We express no opinion as to the remaining provisions of Article 1994. Therefore, we hold that the judgment in cause No. 7870 is not void for want of original jurisdiction to entertain the suit of an insane person represented by a next friend, nor because of the fact alone that it was an agreed judgment. But for other reasons assigned by plaintiff, we think the court was without authority to render the particular judgment entered in cause No. 7870.

The particular judgment entered in cause No. 7870 is fundamentally erroneous and void for want of support in pleading, in that it awards N. E. Williams, the next friend, recovery of title to a portion of the minerals sued for on behalf of John R. Williams. The vesting of title in N. E. Williams to ½6 of the minerals in the 81.2 acres and ⅝ of the minerals in the 16.4 acres was the adjudication of a subject matter not before the court by any pleadings. It was the attempted exercise of jurisdiction without the scope of and wholly aside from that jurisdiction invoked by the pleadings; in other words, it was the adjudication of a matter over which the exercise of the court’s potential power had not been called into action by any pleading. A judgment based upon pleadings which do not invoke the jurisdiction of the court with respect to the particular subject matter determined by the judgment is fundamentally erroneous and void. Sandoval v. Rosser, Tex.Civ.App., 26 S.W. 930, Id., 86 Tex. 682, 26 S.W. 933; Smith v. Pegram, Tex.Civ.App., 80 S.W.2d 354; City of Ft. Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221; 25 Tex.Jur. 474, Sec. 98; 15 R.C.L. 604, Sec. 43; Freeman On Judgments, 5th ed., Secs. 338, 355. The fact that the title to the minerals vested by the judgment in N. E. Williams was vested in him in trust for John R. Williams and wife, Elizabeth Williams, may reduce the injury, but it nevertheless divests them of the legal title to their property, a valuable right.

Contention is made to the effect that, notwithstanding the absence of pleading to support it, the judgment in cause No. 7870 may be sustained upon the ground that it was an agreed judgment. The question as to whether parties who are properly before the court may have their agreement incorporated into a judgment, adjudicating a subject matter concerning which the jurisdiction of the court has not been called into action by any pleading, is not necessary to be determined in this case, and we do not decide it, for the reason that the agreement upon which the judgment in cause No. 7870 is based and which agreement is here offered as a substitute for or to operate in lieu of the needed pleading, is void as against public policy. Had the provisions of said agreement authorizing such recovery in favor of said N. E. Williams been incorporated into his pleadings it would have been the duty of the court to at once dismiss the suit. A next friend can not maintain the cause of an insane person against whom in the same suit he is asking a recovery. A next friend occupies as great a trust relation toward the insane person whose interest he represents as that of a guardian toward his ward. In Sandoval v. Rosser, 86 Tex. 682, 26 S.W. 933, 934, Judge Brown for the Supreme Court said: “In this case the language of the petition is, ‘Mariano Rodriguez sues in his own right and as guardian of the minors, Manuel Yturi Castillo and Vincente Yturi Castillo.’ This language did not make the Castillos parties to the suit, but described the character in which Rodriguez appeared in the case. If, however, the language were such as to make the minor parties to the suit, under ordinary circumstances, it could not have the effect in this case, for the reason that the guardian was adversely interested, and he could not maintain a suit for himself personally against himself as guardian. In the case of Fortune v. Killebrew [86 Tex.172] 23 S.W. 976, this court held that, where the guardian was interested adversely to his wards in a tract of land, he could not sign for his wards an agreement to arbitrate the rights of himself and wards in the division of the land, and that, as between him and the wards, the agreement would be void. In Iturri v. Whitehead, 22 Tex. 556, plaintiff Whitehead sued the minors, and was afterwards appointed guardian of their estate; prosecuted the case to judgment against them, which being appealed, the court said: ‘It would seem, on general principles, that after it was made apparent to the court that the plaintiff had been appointed guardian of the defendants, the suit ought to have been dismissed; but, as this point has not been noticed by counsel, it need not be decided.’ This is the enunciation of the principle of right, that courts must recognize and enforce, that one who occupies a trust relation shall not use the authority given him by law or contract to the abuse of the trust. This principle applies with peculiar force, and appeals to the courts with greater emphasis, in cases between minors, and their guardians.” The above is but an application of the ancient and well settled doctrine that courts will not permit one to act'in relations which ordinarily excite a conflict between self-interest and integrity.

It is further contended in substance that the judgment in cause No. 7870 may be sustained upon the grounds that John R. Williams agreed to the judgment, and that in support of the validity of the judgment it may be presumed that the trial court found that John R. Williams was sane at the time of the trial, when he agreed to the judgment. We do not think this contention can be sustained. First, such presumption is inconsistent with the record. Second, should such presumption be indulged it would not remove from the record the vice wherein N. E. Williams while acting in the trust capacity of next friend acquired the legal title to the property against the person whose interest he represented. The record shows that N. E. Williams continued to act in the capacity of a plaintiff as next friend of John R. Williams, an alleged insane person. That the court permitted him to maintain and continue to prosecute the suit in that capacity includes the presumption that the court inquired into and satisfied itself as to the existence of such alleged fact of insanity. Lindly v. Lindly, 102 Tex. 135, 113 S.W. 750. The further action of the court (though without power to do so) vesting N. E.'Williams with title to the land, and in awarding the attorneys judgment for their services against John R. Williams evidences the fact and can not be reasonably accounted for upon any other theory than that the court was of the opinion that John R. Williams was insane at the time of the trial. It is further contended that since the judgment in cause No. 7870 recites that the court found that John R. Williams was sane at the time he executed the instrument sought to be cancelled, that such finding raised a legal presumption of sanity at all subsequent dates, therefore it must be presumed that John R. Williams was sane at the time of the trial. Counter to this contention plaintiff contends that the judgment of the county court of Gregg County rendered in 1909 adjudging John R. Williams insane legally established the status of John R. Williams as that of an insane person and that proper verity given to that judgment conclusively affirms the issue of his insanity at all subsequent times until he has been restored to sanity by judgment of the county court in a proceeding instituted for that purpose as authorized by the restoration statute. Prior to the enactment of the restoration statute it was held that such a judgment of insanity, as against strangers thereto, created a rebuttable presumption of insanity; that is, “prima facie evidence of the mental unsoundness adjudged to exist.” Herndon v. Vick, 18 Tex.Civ.App. 583, 45 S.W. 852. We do not, think that the enactment of the restoration statute changed the effect of a judgment of insanity from a rebuttable presumption to a conclusive presumption. It is our opinion that the restoration statute merely provided a remedy for permanently removing the existing rebuttable presumption of insanity. Therefore we think that the judgment of the county court of Gregg County adjudging John R. Williams insane has the legal effect of constituting a continuous rebuttable presumption of insanity, effective at any time the issue is raised and continues to have that force and effect until his status of sanity is adjudged to be restored by a judgment of the county court in a proceeding authorized for that purpose by the restoration statute. Hence the finding of the court that John R. Williams was sane at the time he executed the conveyance does not have the legal effect of a judgment of the county court restoring his status of sanity, so as to raise the presumption of sanity at the time the judgment was rendered in cause No. 7870.

The judgment in cause No. 7870 is also fundamentally erroneous and void in that it, without any support in pleading or agreement of the parties, awards a recovery against John R. Williams and wife, Elizabeth Williams, in favor of the attorneys “for $625.63 expenditures and $4,500 for legal services rendered to the said N. E. Williams as next friend to John R. Williams and to the said John R. Williams and Elizabeth Williams, his wife,” in said cause. Such judgment is not only without any support in the pleading, it is not within the terms of the agreement of the parties upon which the judgment is based. In Wyss v. Bookman, Tex.Com.App., 235 S.W. 567, 569, it is said: * * we think it clear that the court would be entirely without authority to render any judgment other than that falling strictly within the terms of the stipulations. ' It was not for the court to determine whether the benefits to accrue from a particular stipulation might be had under some arrangement different from that stipulated. The powers of the judge, exercised by virtue of agreement of the parties, extend, we think, to entering only such judgment as was' a literal compliance with the agreement.”

It is contended that the judgment against John R. Williams and Elizabeth Williams awarding said attorneys recovery for their expenses and legal services may be sustained upon the ground that it is analogous to the action of a court in allowing a guardian ad litem a reasonable fee for his services. The contention is not sustained. The analogy in point of fact is not present in the comparison, nor is the authority of law granted by the statute to the court in the one instance present in the other. The statute, R. S. Article 2159, authorizing the court to appoint a guardian ad litem also authorizes the court to “allow him a reasonable fee for his services, to be taxed as a part of the costs.” The statute, Article 1994, .authorizing an insane person to sue and be represented by a next friend, contains no such provision as that above quoted from Article 2159. It is further contended that “the trial court had jurisdiction of the fund and therefore jurisdiction to require that a portion of it be used to pay attorneys’ fees to the next friend’s attorneys.” There were no pleadings and no-agreement granting the attorneys an interest in the money recovered from John R. Williams and his wife, the debt due the attorneys was simply an unliquidated and unsecured demand for expenses and legal services rendered. It is true as contended that the court had jurisdiction over the money recovered for John R. Williams and his wife, Elizabeth Williams, and ordered to be paid into the treasury of the court for their account, but such jurisdiction over the money was limited to that invoked by the pleadings. In other words, the court was as much without power to order the money paid to the attorneys as it would have been to order its use in payment of any other debt due by John R. Williams and his wife, Elizabeth. In White v. Simonton, 34 Tex.Civ.App. 464, 79 S.W. 621, 624, it is'said: '“We hold that that part of the judgment wherein it is decreed that one-half of the recovery in favor of appellees shall inure to the benefit of their attorneys is erroneous. The appellees are all minors, and the attorneys themselves were not before the court as parties, and there is no pleading warranting such finding. In addition, we doubt whether, in any event, the attorneys would be entitled to such relief. Glassgow v. McKinnon, 79 Tex. [116], 117, 14 S.W. 1050.”'

The judgment of the trial court will be reversed and the cause remanded.

On Motion for Rehearing.

Since announcement of our original opinion filed herein on June 15, 1939, whereby the judgment of the trial court was reversed and remanded, and while ap-pellees’ motions for rehearing are pending, the appellant, joined by appellee N. E. Williams, has presented to us a motion suggesting the disqualification of the trial judge by reason of having been of counsel and that the judgment from which this appeal is prosecuted is void by reason of constitutional provision reading as follows: Sec. 11, Art. 5, Vernon’s Ann.St.Const.: “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in th'e case." (Italics ours).

Attached to such motion is the affidavit of Hon. C. E. McGaw, the district judge who entered the judgment in this case. The affidavit reads as follows:

“The State of Texas!
“County of Gregg J
“Before me, the undersigned authority, on this day personally appeared Judge C. E. McGaw, who being by me duly sworn ■on oath, states:
“That he is a lawyer admitted to the Bar of Texas, and is the identical C. E. McGaw who, as a member of the law firm of Stuart, Morgan, McGaw and Mitchell, signed as one of the attorneys of record for John R. Williams and Elizabeth Williams, and N. E. Williams, as next friend, the agreed judgment, made the 'basis of the suit and complaint by the Appellant in the above entitled cause, and set forth and contained in the transcript ■of the record on appeal, and on file in the above entitled and numbered cause in the Court of Civil Appeals of the Sixth Supreme Judicial District of Texas; that he was, in fact, an attorney in the case as set forth in the said case; that at the time ■of the trial of the above case now on appeal, he was the duly elected and qualified District Judge of the 124th Judicial District Court, and the judge who presided and determined and rendered the judgment in the above cause, from which this appeal, was taken, and which judgment appears, and is contained in the transcript of the record on appeal in the above entitled cause; that the C. E. McGaw who appeared as attorney of record in the said agreed judgment; and the Clarence E. Mc-Gaw, who presided as said judge in the trial of the said cause on appeal is one and the same identical person.
“C. E. McGaw
“Subscribed and sworn to before me by Judge C. E. McGaw on this September 22nd, 1939.
“Dozier Skipper, Jr.
“Clerk of District Court of Gregg
“(Seal) County, Texas.”

If the district judge was so disqualified, he then had no power to act in the case. It appears to be a well-settled rule that a judgment entered by a judge who is disqualified by the constitutional inhibition is void and of no effect.

We think the record amply reflects that the trial judge was disqualified to enter the judgment appealed from, and that the motion should be granted. Freeman on Judgments (5th Ed.) .Vol. 1, Sec. 328, 338; Lee v. British-American Mtg. Co., 51 Tex.Civ.App. 272, 115 S.W. 320; Gulf C. & S. F. R. Co. v. Looney, 42 Tex.Civ.App. 234, 95 S.W. 691; Seabrook v. First Nat’l Bank of Port Lavaca, Tex.Civ.App., 171 S.W. 247; Templeton v. Giddings, Tex.Sup., 12 S.W. 851; King v. Wise, Tex.Civ.App., 1 S.W.2d 732; Weil v. Lewis, Tex.Civ.App., 2 S.W.2d 566; Alsup v. Hawkeye Securities Co., Tex.Civ.App., 283 S.W. 618.

The granting of this motion does not change our judgment, but is another reason why the case must be remanded for a new trial.

All motions for rehearing have been duly considered and are respectfully overruled.


author: FOLLEY, Justice.

text:
    NATIONAL LIBERTY INS. CO. v. HERRING NAT. BANK OF VERNON, TEX.
    No. 5083.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1939.
    Rehearing Denied Jan. 2, 1940.

      Thompson, Knight, Baker, Harris & Wright and William H. Neary, all of Dallas, and J. A. Storey, of Vernon, for appellant.
    Berry, Warlick & Bunnenberg, of Vernon, for appellee.
   FOLLEY, Justice.

This is a suit on a hail insurance policy issued by the appellant, National Liberty Insurance Company of America, upon the one-third interest of the appellee, the Herring National Bank of Vernon, Texas, in a wheat crop of 635 acres located in Wilbarger County, Texas. For a premium of $222.25 the one-third interest in the 635 acres was insured for $5 per acre, the total face amount of the policy being in the sum of $3,175. The petition of the appellee sought recovery for two separate losses by hail. The first loss was alleged to have occurred on May 27, 1938, and the second on June 3, 1938. The appellee alleged that the first hail storm resulted in a 70.5% loss of the entire crop insured, that the second hail caused an additional loss of 15.6% of the entire crop insured and that the aggregated percentage of loss amounted to the sum of $2,733.17.

The appellant answered that the actual value of the crop was substantially less than the recovery sought by the appellee; that material damage was suffered by the crop by reason of causes other than hail; that a portion of the damage was the result of worms, rust, freeze, wind and delay in harvesting the crop, which losses were not covered by the policy and for which the appellee was seeking recovery; and that the appellee could not recover for the alleged loss of June 3, 1938 on account of the failure of the appellee to give the required notice to the appellant as provided in- the policy.

The cause was submitted to the jury and their verdict was substantially as follows: that the wheat crop of the ap-pellee located on Section 25, Block 14, H. & T. C. Ry. Co. Survey, Wilbarger County, Texas, was damaged by hail on May 27, 1938; that the percentage of loss or damage to said wheat crop described in Special Issue No. 1 as a direct result of the hail of May 27, 1938 was 60%; that the wheat crop described in Special Issue No. 1 was damaged by hail on June 3, 1938; and that the percentage of loss or damage occasioned to appellee’s wheat crop, described in Special Issue No. 1, as the direct result of the hail of June 3, 1938, was 10%. Upon this verdict the court rendered judgment for the appellee in the sum of $2,222.50, which was 70% of the face amount of the policy.

The appellant seeks reversal of the judgment of the court below upon three general propositions: first, that the hail insurance policy was not what is usually denominated a “valued policy” and therefore the assured’s recovery was limited to the actual pecuniary loss sustained; secondly, that by reason of the policy not being a “valued policy” the court erred in refusing to submit to the jury the various defenses pleaded by the appellant with reference to damage from worms, rust, freeze, wind and delay in harvesting; and, thirdly, in the absence of the required written notice of loss following the second hail, and because of the first hail on May 27, 1938, no recovery should have been permitted for any damage alleged to have occurred by reason of the storm of June 3, 1938.

The policy in issue contains the following stipulations which we deem material to this controversy:

“17. In case the exact acreage of any crop insured hereunder is less than the total acreage stated in the Insured’s application, the total amount of insurance applying to such crop shall be reduced in that proportion that the ascertained deficiency in acreage bears to the total acreage stated in said application and the Company shall return the premium on such excess.
“18. In case the exact acreage of any crop insured hereunder is greater than the total acreage stated in the Insured’s application, the amount of insurance per acre shall be determined by dividing the total amount of insurance applying to such crop by the total number of acres comprising said crop.
“19. In case of disagreement as to the correct acreage of any crop covered hereunder the Insured shall furnish, without cost to this Company, a survey made by a competent surveyor showing the exact acreage of such crop, and failure of the Insured to furnish such survey on demand shall render this policy null and void.
“20. The liability of this Company for loss or damage to any crop herein described, or any part thereof, shall be reduced in the same proportion as the proportion in which said crop, or any part thereof, is reduced by cutting, digging, picking, pulling or otherwise harvesting.
* * * * *
“22. In the event that any crop herein described is damaged or destroyed by hail, the amount payable hereunder shall in no event exceed the same percentage of the amount of insurance applying to the particular crop so damaged or destroyed at the date of loss, as the ascertained percentage of loss or damage by hail only bears to the whole of the particular crop or crops so damaged or destroyed at the date of the loss; nor in any event exceed the actual loss or damage sústained by hail only, nor exceed the amount of insurance applying to the particular crop so damaged or destroyed.”

These provisions of the policy are in the exact language of the policy in issue in this court in the case of Insurance Company of North America v. Mathers, Tex.Civ.App., 31 S.W.2d 1095, writ dismissed. In that case, in connection with the provision that the ratio of payment under the policy should in no event exceed the same percentage of the amount of insurance applying to the crop damaged as the ascertained percentage of loss by hail bears to the. whole crop, this court held that the trial court “did not commit error in permitting appellee to recover without alleging and proving the value of the wheat damaged and. destroyed by the hail”. Such holding was in conformity to the former decisions of this court upon this issue. Fidelity Union Fire Insurance Company v. Mitchell, Tex.Civ.App., 249 S.W. 536; St. Paul Fire & Marine Ins. Co. v. Pipkin, Tex.Civ.App., 207 S.W. 360; Fidelity Union Fire Ins. Co. v. Hicks, Tex.Civ.App., 250 S.W. 1084.

The appellant asserts that the policy in the instant case is distinguishable from, that of the Mathers case, supra, and in support of its contention in this respect cites us to paragraph 13 of the insurance contract in the instant case. Such paragraph is as follows: “On all crops other than vine, truck, vegetable, tobacco, long staple irrigated cotton and fruit crops, total insurance for all interests on the crops described herein shall not be permitted to exceed Thirty-six ($36.00) Dollars per acre on irrigated land and Twenty-four ($24.00) Dollars per acre on non-irrigated land, nor to exceed Two Hundred ($200.00) Dollars per acre on vine, truck, and vegetable crops, and Seventy-two ($72.00) Dollars per acre on long staple irrigated cotton. However, in the event that the total insurance per acre exceeds this limit or exceeds the value of the crop, this company shall be liable only for its pro rata part of the value of the •crop if the value be less than such stated limits, and in no event to exceed its pro rata part of such limit per acre, it being understood and agreed that the liability of this company shall in no event be held to exceed the actual proportionate interest of the Insured in the crops described herein. If the total insurance on this crop exceeds the maximum limits permitted hereunder, the company shall refund its ■proper pro rata share of premium on such •excess.!’

The appellant contends that the corresponding paragraph in the Mathers case was apparently different in that it did not ■contain the clause above quoted to the effect that the company’s liability ’ should be limited to a pro rata of the “value of the crop”.. We have obtained the statement of facts in the Mathers case, which is on file in this court, and upon careful ■examination find that such paragraph is in the exact language of the policy in the case before us. In fact, upon comparison of the two policies as a whole we find no material distinction between them. The same numbers are used in the respective policies for each paragraph dealing with the same subject matter and the language used in the corresponding paragraphs of both policies is identical with the exception of a few minor variations which are trivial.

It appears to us that the provision last quoted above was inserted in the policy apparently for the purpose of preventing the issuance of a policy far in excess of the value of the crop insured and for that reason a limit of $24 per acre was placed on wheat upon non-irrigated land and $36 per acre upon irrigated land. We think the paragraph as a whole simply provides that in the event of such excess coverage the company should not be liable upon the policy on the basis of its face amount but that such face amount should be reduced in proportion to the value of the crop insured, the appellant’s liability being determinable from such reduced figure, and the premium adjusted ratably. This provision, we think, in the absence of any showing of excess coverage, does not in any manner lessen or limit the liability of the appellant as expressed in the paragraphs first quoted above. The only reasonable construction of such paragraphs would be that the appellant assumed liability for whatever per cent of the face amount of the policy the loss or damage bears to the whole of the particular crop insured. In other words, these provisions would warrant the construction that if the whole crop was damaged 70%, as found by the jury upon sufficient evidence in this case, the appellant would be liable for 70% of the face amount of the policy. It will be noted from the provisions of paragraphs 17, 18, 19 and 20 that it is “acreage” and not the “value of the crop” that is the determining factor in the coverage of the policy. If the policy was 'an “open policy”, as contended by the appellant, the exact number of acres, so far as the liability of the appellant is concerned, would not be important. But the exact acreage is made a material element by the terms of the policy. Paragraph 19 goes so far as to provide that in case of disagreement as to the exact acreage the insured was to furnish a competent surveyor to show the exact amount of land and that the insured’s failure to do so should render the policy void.

In paragraph 20 it was provided that the liability of the company should be reduced “in the same proportion as the proportion in which said crop, or any part thereof, is reduced by cutting, * * * or otherwise harvesting”. We think this stipulation could be reasonably construed only to the effect that if the crop was one-third harvested the face amount of the insurance should be reduced one-third, and if one-half harvested the insurance should be reduced one-half, and this irrespective of the value of the portion harvested or that remaining in the field. As was said in the Mathers case [31 S.W.2d 1097], paragraph 22 does not refer to “the value of the crop nor the value of the wheat * * * destroyed as the measure of ap-pelle'e’s damages”. Moreover, paragraph 14 of the policy provides that the company should not be liable for any loss unless the loss equals or exceeds 5% of the particular crop so damaged. In this provision no reference is made to the value of the crop. It is'predicated solely upon the percentage of damage to the crop which fact, we think, is at least persuasive in support of the interpretation that for a loss equal to or in excess of 5%, the liability of the company should be based upon the percentage of the damage to the crop insured regardless of its value. In any event, if the policy is susceptible of two interpretations we are compelled, under the authorities, to adopt the one most favorable to the assured. Couch’s Cyclopedia of Insurance Law (Vol. 1) 392, para. 188. It is therefore our opinion that the policy in issue was a “valued policy” and there was no error in the court’s permitting a recovery without allegation and proof of the value of the wheat damaged and destroyed by hail.

In connection with appellant’s second contention, as above set out, no statement is made under the propositions thereon as to what requested defensive issues the court failed to submit and about which the complaint is made, and we are not compelled to search the record to find such requested issues. However, assuming from the insufficient statement made by the appellant that the issues referred to relate to the purported affirmative defense alleged by the. appellant in regard to damage from worms, freeze, rust, etc., we have reached the conclusion there is no error in the court’s refusal to submit these issues. The pleadings of the appellant, when carefully analyzed, reveal that in connection with its allegations as to damages by freeze, rust, worms, etc., the appellant was merely, contending that the appellee was seeking damages for' these losses as well as those resulting from hail, and that the appellant should be relieved from liability upon all damages other than hail. The appellant nowhere asserted that the damages were the result of these other causes and not from hail, but merely asserts that if the crop was damaged by hail it was also damaged by these other causes. There was no provision in the policy to the effect that if the crop was damaged by other causes in • addition to hail that the appellant would not be liable for damages resulting directly from hail. It is evident from the pleadings of the ap-pellee that the only damages sought by it were those resulting from hail. If appellant’s pleadings should be held to present these other causes as an affirmative defense there was no allegation as to the amount of damage caused by the freeze, rust, worms and the like, and there was no evidence introduced to show the ■ amount of the damages resulting -from these sources. All of the witnesses who testified as to, the amount of damages suffered by the crop based their calculations on hail damage only and the issues submitted to the jury excluded all damages except those directly resulting from the two hails. Under such circumstances it is our opinion that no defensive issues were raised and the assignment is therefore overruled.

The third contention of the appellant is presented under two propositions. The first is that the failure of the assured within forty-eight hours from the second hail to notify the appellant of the loss by registered mail, as provided in the policy, precludes a recovery by the appellee for the second loss. The other proposition is to the effect that it was error for the court to predicate a recovery for the second loss on an issue inquiring of the jury the damage occasioned to. the original crop since the condition of the original crop had been materially changed by the hail of May 27, 1938.

Although oral notice to the company’s agent at Vernon was admittedly given the next morning after the second hail,, it is true that no written notice of the second loss was given by the appellee. It is also true that the policy provided for a written notice of the damage by hail to^ be sent to the company by registered mail within forty-eight hours after such loss. It was further provided in the policy that such company should not be liable for any loss or damage unless such notice was so furnished. It was also stipulated that notice to any agent of the company should not constitute notice to the company, and in connection with this particular provision, since the appellant is a corporation, we wonder in what other manner the appellant could have received the notice except through an “agent”. All of these stipulations were clearly in violation of article 5546 of the 1925 Revised Civil Statutes of Texas, and, under the facts of this case, we think are unreasonable on their face. Western Indemnity Co. v. Free and Accepted Masons of Texas et al., Tex.Com.App., 268 S.W. 728; Ætna Life Ins. Co. of Hartford, Conn. v. Griffin, 58 Tex.Civ.App. 198, 123 S.W. 432, writ denied; St. Paul Fire & Marine Ins. Co. v. Pipkin, supra; Royal Casualty Co. v. Nelson et al., Tex.Civ.App., 153 S.W. 674; Fidelity & Casualty Ins. Co. of New York v. Mountcastle, Tex.Civ.App., 200 S.W. 862; First Texas State Ins. Co. v. Hare, Tex.Civ.App., 180 S.W. 282. Although the appellee did not give written notice of the second hail, it did give written notice of the first hail as required by the policy. As above stated it also gave oral notice to the local agent of the appellant on the morning following the second hail. The written notice of the first loss was mailed on May 28th, the day after the first hail, yet the evidence shows that no person appeared to make inspection of the premises or discuss the loss with the appellee until June 11, 1938, which was over a week after the second hail. Moreover, a formal proof of loss'showing both the hails of May 27th and June 3d was made on July 10th and sent to the'company, which was within sixty days after the date of either of the hails. Under these conditions, and in the absence of any showing that the appellant was prejudiced in any manner by the delay, we think the contention of the appellant in this respect is without merit.

In regard to the other proposition above mentioned we think the objection urged is hypercritical. All of the evidence of the witnesses testifying as to the percentage of loss was to the effect that the first hail caused a loss of a certain per cent of the entire crop and that the second hail caused another loss of a certain per cent of the entire crop. The first special issue submitted by the court inquired of the jury if the wheat crop of the appellee located on Section 25, Block 14, H. & T. C. Ry. Co. Survey in Wilbarger County, Texas, was damaged by hail on May 27, 1938. The fourth special issue inquired of the jury if the wheat crop of the appellee, described in Special Issue No. 1, was damaged by hail on June 3, 1938. Both of these issues were answered in the affirmative. By the answer to the third special issue the jury found that the hail of May 27, 1938 resulted in a damage of 60% to appellee’s wheat crop described in Special Issue No. 1. In answer to the fifth special issue the jury found that the hail of June 3, 1938, resulted in a 10% damage to appellee’s wheat crop as described in Special Issue No. 1. The wheat crop described in Special Issue No. 1 referred to such crop before the same was damaged by any hail. Under such circumstances we think no reasonable conclusion could be drawn other than that the jury was finding an aggregate of 70% damage to the whole wheat crop by reason of both hails.

Our original opinion is withdrawn, the appellant’s motion for rehearing is overruled, and the judgment of the trial court is affirmed.


author: McCLENDON, Chief Justice.

text:
    CENTURY INS. CO., LIMITED, OF EDINBURGH, SCOTLAND, v. HOGAN.
    No. 8825.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1939.
    Rehearing Denied Dec. 20, 1939.

      Bryan & Bryan, of Houston, for appellant.
    J. E. Shropshire, of Brady, for appellee.
   McCLENDON, Chief Justice.

Suit upon a policy insuring appellee’s dwelling house and two 55-gallon metal water tanks adjoining it for $1500 and contents of the house (furniture, etc.) for $250, against loss by fire. The appeal is by the Insurance Company (Century Insurance Company, Ltd., of Edinburgh, Scotland) from- a judgment for $1500 against it upon a directed verdict.

Appellant urges four propositions:

1. The only evidence of total loss of the building and tanks was that of ap-pellee, and was not conclusive, though un-contradicted, because he was an interested witness.

2. There was no pleading or proof that the fire was not caused by an excepted risk.

3. No proof of loss was made and ap-pellee refused to submit to an examination under, oath, as required in the policy.

4. There was no proof that appellant executed the policy.

The building was a one story, shingle roof, frame dwelling, California bungalow style. The premises were inspected by a representative of appellant before the policy was issued, and again after the fire. According to appellee’s testimony, which was the only evidence upon the subject, the building and tanks were a total loss. Nothing remained of the building but some stone piers. The tanks were unsoldered and burned, and were of no further use. If this testimony be taken as true, a directed verdict was proper under the holding in Assurance Co. v. Continental Ass’n, Tex.Civ.App., 8 S.W.2d 787, 789, error refused. The following quotation from the opinion shows that that case was practically on all fours with this: “Plaintiff had shown, at least prima facie, that the building was a total loss within the meaning of the statute, and, as the case stood, was clearly entitled to prevail on that issue. The matter sought to be presented by the requested issue, was purely defensive, and the burden was upon appellants to support the same with evidence. No attempt was made by them to prove the salvage value of the remains of the burned structure, nor did they develop any. fact or facts from which a conclusion could be drawn that a reasonably prudent owner, uninsured, would have used the remains of the building as a basis for a new building, unless it can be said that the testimony of Mr. Johnson, the owner, presented the issue. After Mr. Johnson described the ruins, which in our opinion revealed a total loss of the structure within the meaning of the law, referring to the brick piers left in the foundation, said they were ‘sufficient, I suppose, to hold up a house 60x80.’ No attempt was made to show the value of the piers left in the foundation, nor the relation they bore to the entire structure, nor what it would cost to recondition them for use in a new structure. We are of the opinion, therefore, that the court erred neither in refusing the special charge, nor in directing a verdict for appellees.”

We do not gather from appellant’s brief that it controverts the conclusive effect of appellee’s testimony, if it be accepted as true. Its sole complaint is that since the evidence came from appellee alone it could not be accepted as conclusive on account of appellee’s interest in the case. It is not necessary to cite authority supporting the invoked rule. A well recognized exception, within which the instant controversy falls, is thus stated in Luling Oil & Gas Co. v. Edwards, Tex.Civ.App., 32 S.W.2d 921, 926, error dismissed: “The rule that the uncorroborated testimony of interested witnesses, although not controverted, does not conclusively establish a fact; is not applicable where the nature of the testimony is such that it might readily be discredited, if it were not true, and the adverse party offers no disparaging proof whatever.”

Nothing could be more open to observation than the scene of a burned building. Nothing affecting the issue of total loss was attempted to be concealed or could hate been concealed. If ap-pellee’s testimony on this issue was not true, it could readily have been disproved or discredited. Appellant’s failure to offer any disparaging testimony is conclusive that it could not be refuted. Appellant’s representative inspected the property shortly after the fire. He' testified in behalf of appellant on other points, but did not contradict any statement of appellee on this subject.

Upon the second proposition: The policy was what is known as a “Texas Standard Combined Fire and Windstorm Farm Policy,” and appears to be upon the same form, at least as to the fire provisions, as those in Georgia Home Ins. Co. v. Trice, Tex.Civ.App., 70 S.W.2d 356, and American Ins. Co. v. Maddox, Tex.Civ.App., 60 S.W.2d 1074, error refused. It insured “against all direct loss or damage by fire * * * except as hereinafter provided,” and had the identical exception provisions as those in the Maddox case quoted on page 1076, col. 2, 60 S.W.2d. The policy was attached as an exhibit to the petition, which latter did not negative the excepted risks. A general demurrer to the petition was overruled. The case therefore is on all fours with the Trice and Maddox cases, the holding in each of which to the effect that the general demurrer was improperly overruled was expressly approved in the recent'case of International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851. In sustaining this particular ground of error, the writer adopts as his own the following quotation from the opinion by the late distinguished Chief Justice Hall, in Travelers Ins. Co. v. Barker, Tex.Civ.App., 96 S.W.2d 559, 563: “So many cases have announced the rule that we are compelled to apply the doctrine in disposing of this appeal, a course which this writer reluctantly adopts.”

As regards the proof: The evidence showed that the fire occurred about 1:30 a. m. while appellee and his wife were asleep. They were awakened by the smoke and only succeeded in saving a few of their household effects. What caused the fire no one knew. Appellee’s only surmise was that it might have been caused by a rat taking a match into the attic. The record does not suggest any other proof that could have been offered upon the subject. Our attention is not directed to any evidence which would support a finding that the origin of the fire was attributable to any risk excepted from the policy; and we have found none. We hold, therefore, the evidence conclusively established that the policy covered the particular risk involved.

■ Upon the third proposition, relative to proof of loss and submission to examination under oath, the record facts are: The fire occurred on October 20, 1937, and appellant’s local agent was promptly notified. October 27, 1937, Doss, who testified that he was a “special agent” of appellant, went to Brady (the property being situated near there) and obtained from appellee a “non-waiver agreement.” This was signed by appellee and “The Century Insurance Co., Ltd., of Edinburgh, Scotland, By C. E. Doss, Adjuster,” and witnessed by appellant’s local agent. It was executed in duplicate and introduced in evidence by appellant. On the same day Doss obtained from appellee a sworn statement regarding the fire, the loss thereby, the property, its acquisition, ownership, etc. This statement was prepared by Doss from facts given him by appellee in response to questions propounded by Doss. The statement covers 2½ typewritten pages, and, so far as w'e can see, covers about everything which the policy required to he stated in a “proof of loss.”

December 18, 1937, Chilton Bryan, one of appellant’s attorneys of record, went to Brady and demanded of appellee an examination under oath, to which appellee submitted. The examination was had in the evening, beginning about 8 o’clock, before a notary who was a stenographer, and who transcribed her notes the following day and submitted the transcription to appellee for his signature. This appellee declined to sign until he had consulted his attorney. He did so and later refused to sign. His reasons, given at the trial, were on account of the manner in which he was treated by Bryan during the examination, and the fact that the notary had not taken down all he had stated in the examination. The evidence was conflicting upon the first ground of refusal, and for that reason it may be discarded. The evidence conclusively shows, however, that the other ground of refusal was true. Both Bryan and the notary testified that appellee was very much excited and talked too fast for the notary (she was not a court reporter) to get all he said. The transcription in Q. and A. form covers 20½ pages of the statement of facts, and was introduced in evidence by appellant without objection after the notary had testified to its correctness.

December 16, 1937, appellee’s attorneys addressed a letter to the Texas general agents of appellant advising that the policy had been placed in their hands for collection, and that:

“We understand from Mr. Hogan that proof of loss has heretofore been made and turned over to one of your agents, and that one or more other agents have interviewed him with reference to the fire in question. He claims that he has given all the material information in his possession with reference to the fire in question to your agents, and is still perfectly willing to be interviewed by any of your authorized agents at any reasonable time but insists that it be done in a reasonable manner. Will you please advise us what is your attitude relative to a prompt settlement of this claim in order that we may be governed accordingly.
“Thanking you for your prompt attention to this matter we are.”

The only response to this letter was a letter from Bryan & Bryan, appellant’s attorneys of record, dated January 5, 1938, reading:

“We have for acknowledgment a copy of a letter from Craven, Dargan & Company, enclosing a copy of your letter of Decembet 16, 1937, for answering. ■

“In response to yours of the above date, we would advise that without waiver of any of our rights or privileges under the terms and conditions of the above policy and non-waiver agreement taken from F. F. Hogan, we have noted receipt of your letter of the above date, and have further noted from reading your letter that you failed to state in your letter what in your opinion you consider to be a prompt and reasonable settlement of the above matter.”

January 7, 1938, appellee’s attorneys wrote Bryan &'Bryan a letter (not in evidence) and received the following reply, under date of January 27, 1938:

“We have for acknowledgment your letter of January 7, 1938, and wish to apologize for our delays in responding thereto, but would advise that the writer has been out of the city for some considerable time and has just now come to the point, since his return, that he can answer his mail.
“Responding to yours of the above date, and in line with the instructions of the Century Insurance Company, Ltd., of Edinburgh, Scotland, we are, as of the date of this letter, denying any liability whatsoever, under the terms and conditions of the above numbered and described policy, to F. F. Hogan, your client.”

With reference to the question of proof of loss, we hold that: (1) the verified statement given Doss was full compliance with the policy requirement; and (2) the failure to request anything further in this regard after appellee’s attorneys had on December 16, 1937, stated that they were advised by appellee that he had furnished proof of loss and stood ready to give any further material information regarding the fire upon request, and the subsequent denial of all liability under the policy constituted a waiver of any further compliance with this provision.

The only breach of the policy requirement that appellee submit to examination under oath, was his refusal to sign the notary’s transcription. He had submitted to such examination and had answered every question put to him. He did not contend then nor on the trial that there was any inaccuracy in the transcription as far as it went. It was conceded that the notary did not get all appellee testified to, and that fact, we think, was sufficient to warrant his refusal to sign the transcription as presented to him. The evidence obtained by appellant on. this examination was manifestly all it desired from appellee, otherwise it would have directed attention to appellee’s failure to sign the transcription in the reply of January 5, 1938, to the offer of December 16, 1937, by appellee’s attorneys. We have carefully examined the transcription, and it differs in no material respect from the statements made in the proof of loss or in the testimony given by appellee on the stand. The unsigned transcription served every purpose which it could have served had it been signed; and was used in evidence by appellant. We hold that there was a substantial compliance with this provision of the policy and further compliance was waived.

We overrule the fourth proposition on two grounds: (1) There was no plea of non est factum, verified as required by R.C.S. Art. 2010, Sub. 8; and (2) appellant itself proved the execution of the policy.

Appellant contends that there was a verified plea of non est factum because its answer contained a general denial and was verified. The affidavit reads: “Before me, the undersigned authority, on this day personally appeared Chilton Bryan, a person to me well known and above the age of twenty-one years, and after being duly sworn on his oath, says that he is one of the duly authorized attorneys of record in the above entitled and numbered cause for the Century Insurance Company, Ltd., of Edinburgh, Scotland, and that he has fully investigated the facts and circumstances surrounding the claim and/or claims of F. F. Hogan under his Texas Standard Combined Fire and Windstorm Farm Policy, No. 32847, and he has also investigated the right of the said F. F. Hogan to recover under and by virtue of the above numbered and déscribed policy and has investigated all other facts and circumstances surrounding this matter and has read the foregoing First Amended Original Answer of Century Insurance Company, Ltd., of Edinburgh, Scotland, to be used in the above entitled and numbered cause and says that the allegations and statements of facts therein contained are true according to his best information and belief, which information and belief he believes to be verily true and correct.”

This affidavit, instead of denying, seems rather to admit the execution of the policy. However, in order to put in issue the execution by it or by its authority of an instrument “upon which a pleading is founded,” the defendant is required to deny such execution or authority under oath. This means a specific, categorical denial, usually referred to as a plea of non est factum. A general denial is not such plea. Moreover, the affidavit was merely upon information and belief, which is not sufficient.

That appellant itself proved the execution of the ■ policy appears from the following: As already shown, Mr. Bryan, the above affiant and the attorney of record of appellant who actually tried the case in the court below, went to Brady and conducted an examination of appellee. The transcription of this testimony was put in evidence by appellant. Preliminary to the examination Mr. Bryan dictated to the notary the following:

“This examination is taken pursuant to request of Chilton Bryan for the Century Insurance Company, Limited, Edinburgh, Scotland, in accordance with, under and by virtue of the provisions of the Century Insurance Company, Limited, Farm Policy No. 32847.
“By taking of this examination it is not intended that same shall operate as or be considered as a waiver of any requirement of the above numbered policy and/or compliance upon the part of assured with any and all terms and conditions and provisions of the above named ■ and numbered policy contract nor shall the taking of this examination be considered as, nor is it intended as an admission or denial of liability on the part of the company named above, nor shall the taking of same be considered or intended as a waiver by the named company above of any forfeiture thereof, if any such exists, nor shall the taking of this examination operate as or be considered as a waiver of any rights of the assured, same being taken solely in pursuance of the express provisions and conditions relating to the taking of sworn examination contained in the above named policy.”

Mr. Bryan and the notary testified on behalf of appellant that this statement was so dictated by Mr. Bryan. Further admission of the execution of the policy is shown in the letters of Bryan & Bryan to appellee’s attorneys, dated January 5th and 27th, respectively, 1938, which were introduced by appellant, and which Mr. Bryan testified he dictated. In a plea in abatement predicated upon appellee’s refusal to sign the notary’s transcription of his examination, appellant alleged that appellee was suing appellant upon a “Texas Standard Combined Fire and Windstorm Policy No. 32847, in regard to an alleged loss on October 20, 1937.” Then follows a quotation from the policy providing for the examination under oath, and allegations to the effect that appellee had refused to sign the transcription, “all” the pleading alleges “in violation of the terms and conditions of defendant’s said policy with plaintiff herein.” (Italics supplied.) This plea was verified by Chilton Bryan. Doss, a witness for appellant, testified that he was commissioned by appellant to make a preliminary report of the loss; that he went to Brady, got from the local agent, Bradham, “the file that showed the number of the policy, etc.”; and obtained from appellee the non-waiver agreement and statement above referred to. This statement describes the policy by number.

The above clearly was tantamount to an admission and proof of the execution of the policy by appellant. Moreover, in view of Mr. Clinton Bryan’s above testimony,' we do not believe he would now seriously contend or admit that in his above affidavit to appellant’s answer he had any purpose or intention of swearing even upon information and belief, that his client, the appellant, had not executed the policy in suit.

Appellee has cross-assigned error upon refusal of the trial court to instruct the jury to find in his favor for $250 for destruction of the household goods and furniture, or refusal “to permit the jury to pass upon the destruction and value of said goods and furniture.” There was no error in refusing a directed verdict on this issue for $250; but the issue of the items destroyed and their value should have been submitted. Proof as to these rested upon the testimony of appellee alone; which testimony, unlike that with reference to total loss of the building and tanks, falls within the rule above invoked by appellant.

The trial court’s judgment is reversed and the cause remanded.

Reversed and remanded.