author: BLAIR, Justice.

text:
    GIRAUD et al. v. CROCKETT et al.
    No. 9031.
    Court of Civil Appeals of Texas. Austin.
    June 19, 1940.
    Rehearing Denied July 10, 1940.
    Spears, Conger, Baskin & Spears, of San Antonio, for appellants.
    Swearingen & Miller, of San Antonio, for appellees Comanche Pipe Line Co. and Atlantic Refining Co.
    White, Taylor & Gardner, of Austin, for other appellees.
    Richard S. Brooks,'of Austin, guardian ad litem for minor children of appellees herein. ' j
   BLAIR, Justice.

This is a suit to construe the holographic will of E. A. Giraud,. deceased. He died in Travis County, July ¾ 1921,. and his will was admitted to probate October 4, 1921. The independent executors named in the will qualified October 2Q, 1921, and the inventory and appraisement of the estate was filed and was approved January 21, 1922. The will, except that for. convenience we number the paragraphs, reads as follows:

“The State of Texas,
“County of Travis.
“1st. I, E. A. Giraud, of said County and State, do hereby declare this my last will and testament: — I leave no debts subject to demand or execution and such current bills as I may leave I desire liquidated at once.
“2nd. I owe some unpaid balances on School Lands to the State of Texas and some rentals on State and other mineral leases, which I request my executors to keep in good standing and dispose of as soon as practicable.
“3rd.- í I own'some 33 pertenencias in four mining claims in the ‘Papanton’ State of Durange, Mexico, and the real estate they cover and adjacent thereto, as well as the ‘Hacienda de Beneficio’ known as ‘La V.africa’ and ground adjacent thereto in the City, of Santiago Papasquiaro, together with an .aqueduct of some three lcilo7 metres in length leading to said ‘Hacienda’ and,a water right frop the town Creek as will appear by the Public Archives , at the cities of Durango and Santiago, Papasqui-aro; the said ‘La Fabrica’ grounds and water rights and aqueduct, having been .acquired through mesne conveyances from Julio Rodriquez et al; all of which Mexican property is but of small real value at present; I have been carrying in trust for my brother, Francis M. Giraud, of San Antonio, Texas, two-tenths interest in the mines and lands there at, or thereabouts and one-fourth interest in the Santiago Papasquiaro. property and water rights, etc., but I now devise to him sufficient of my interest to make his holdings an undivided two-fifths (2/5) in the whole of said property in the Republic of Mexico, free of any claims from my estate for taxes, etc., up to the date of my demise, but subject to the right of any executors to convert the whole of said property into cash and account to him for his interest; Mr. Gerald E. Norton, of Durango, Mexico, is my agent, and the taxes are payable, during Jany., May and September of each year in advance of 4 mos. periods, and I further bequeath to him, F. M. Giraud, Seventy-five Hundred Dollars out of my estate, when realized in the ordinary course of administration.
“4 th. I bequeath to my half-sister, Mrs. A. M. Raphall, of San Antonio, Texas, Twenty-five Hundred Dollars out of the first moneys available from my estate.
“5th. I have two daughters, my sole issue, Frances Caroline and Virginia Wilkinson, both feme soles; they have a separate estate as will be shown by my income tax returns as their agent and the records of Brazoria County, Texas. In no other county in Texas or elsewhere do we hold a community interest.
“6th. I give and bequeath all of my property, real, personal or mixed, and wherever situated to my daughter, Virginia W: and enjoin upon her that if owing to loss of health or from any other cause or reason her sister, Frances C. should be compelled to abandon the Holy Cross Sisterhood, which she had elected to enter, that she shall divide, share and share alike with her, the property herein bequeathed to her solely; but no part of my separate estate is by this (my) will vested in my daughter Frances C. except in the contingency herein provided for, or in the event of my daughter, Virginia W. dying without issue, then Frances C. if she should survive her, is to inherit and dispose for herself or for some charitable purpose, exclusive of her own sisterhood, or to her relatives, one-half of my estate — the other half to go to my brother, Francis M. or his heirs.
“7th. If my daughter, Virginia W. should die without issue and my daughter Frances C. not survive her, then three-fourths of my estate shall go to my brother, Francis M., or his heirs, and the remaining fourth to my brother, Leon J., or his heirs.
“8th. I hereby appoint my friends, William L. Stark and Ike D. White, both of Travis County, Texas, executors of this my will and request that no bond be required of them and that the Probate Court have no control of my estate other than requiring them to file an inventory, appraisement, and list of claims. My said executors shall administer my estate disposing of the Mexican property and wild lands as soon as practicable at such prices and on such terms as they may deem to the best advantage of my estate investing the proceeds in interest bearing securities.
“9th. Such stocks and bonds as I may die possessed of are to to held in trust for my daughter, Virginia W. and the income therefrom and from such additional securities as they may purchase after deducting costs of administration shall be paid to my said daughter from time to time when realized, but no part of the principal of my estate shall be paid her until she attains the age of thirty years, if unmarried, or until five years after marriage, unless some grave necessity should warrant it, and as to this I leave my executors to. judge. After arriving at the age of thirty years unmarried or a feme sole or after five years of married life, she will be entitled to demand full possession of my estate from my executors.
“10th. In the event of the death, refusal or inability of one of my executors to act, the other shall perform all the duties hereunder, but in the event both should refuse or be unable to act hereunder, then and in that event I leave it to my daughter, Virginia W., to name the administrator hereunder under the direction of the Probate Court until the termination of the five year period after marriage or until she attains the age of thirty years unmarried and thereafter is she should not elect to take personal charge of the estate, which she shall have the right to do.
“Written with my own hand and I now sign it as my act and deed this 27th day of October, A. D. 1920, in the City of Austin, Texas.
“E. A. Giraud.”

The evidence showed that testator was married once; that his wife died in 1904; that he never married again; that the two daughters of this marriage survived him and are referred to in the will as “my sole issue, Frances Caroline and Virginia Wilkinson, both feme soles.” Frances C. died in the year 1933 without issue, and at the date of her death she was still a member of the Holy Cross Sisterhood.

The evidence further showed that the special bequests were paid by the executors. The interest of F. M. Giraud in the Mexico land was tendered to him and refused by him; and the Mexico land was abandoned because found to be worthless. The $7,500 bequest was paid to F. M. Gi-raud.

The evidence further showed that appel-lee Virginia W. Giraud married John G. Crockett on October 4, 1921, and of this union two daughters, Constance Eugene and Carolyn Giraud Crockett, were born, and that they were at the time of the trial about 16 and 14 years of age, respectively, and were in good health. They were represented in the suit by a guardian ad litem, who adopted the construction placed on the will by their mother; and by brief in this court the same position is taken by the guardian ad litem. When Virginia W. had been married five years all of the estate of testator was turned over to her, in accordance with the terms of the will.

Except a small amount of community property in Brazoria County, the lands were the separate property of testator, which consisted of 'the Mexico lands, which were abandoned, and other unimproved or “wild” lands in Texas; and although the will authorized the executors to sell the lands, appraised at $49,835, and to invest the proceeds in bonds and securities like those owned by the testator, this was not done and the lands were by the executors conveyed and delivered to appellee Virginia W. Crockett, together with the personal property of testator, which consisted of money, stocks, bonds, and other securities of the appraised value of $109,202.-51, when she had been married five years.

Frances M. and Leon J. Giraud, the brothers of testator mentioned in the will, are dead, each having died after the death of testator, and their heirs, a part of whom are appellants, are parties to this suit.

Appellees Comanche Pipe Line Company and the Atlantic Pipe Line Company owned mineral leases on some of the lands involved, but such interest is not in controversy; the judgment being confined to a construction of the will only.

A controversy arose between appellants and Virginia W. Crockett, which caused her to file this suit for the construction of the will in question. She alleged and the trial court found under the facts adduced that it was the intention of the testator to give and bequeath to her all of his property, except the special bequests, and to vest in her the fee-simple title to all of his property and estate, in the event she survived him and reached the age of thirty years, or when she had been married for a period of five years.

It is the contention of appellants that propferly construed the will vested in appel-lee, Virginia W. Crockett, only a determinable or base fee at the death of the testator, and that the fee-simple title to the estate cannot be finally determined until her death, when upon failure by her to leave issue surviving the estate would pass to and vest in his two brothers or their heirs, as directed in the will.

We have reached the conclusion that the trial court has correctly construed the will.

The will as a whole shows an intelligent effort of testator to carefully dispose of his properties, and that the particular objects of his bounty and care were his two daughters. He made certain specific devises and bequests to certain relatives, and as to the remainder of his estate he stated that “I give and bequeath all of my property, real, personal or mixed, and wherever situated, to my daughter Virginia W.” In the contingency provided for Frances C, if she for any reason abandoned the Holy Cross Sisterhood, testator referred to the fact that his property had been “bequeathed to her (Virginia W.) solely,” and that “no part of my separate estate is by this my will vested in my daughter Frances C, except in the contingency herein provided for.” Testator also directed that his executors sell the real estate and invest the proceeds in interest-bearing securities;, and that his stocks, bonds, and the interest-bearing securities so purchased by. the executors be held in trust for his daughter Virginia W., which property was , by testator “bequeathed to her solely.” Whether this direction to sell the real estate and convert it into personal property constituted in law a command to convert the real estate into personal property, need not be determined here, because it is clear that, testator so directed and thought it would be done, arid his intention tó .vest title to Virginia W. must be viewed' from that standpoint; and the law of transfer of personal property by delivery is applicable. The fact that the real estate was not so sold and invested is not material, because by plain and explicit language testator gave and bequeathed all of his property, real, personal, or mixed to Virginia W., “solely,” and directed that “after arriving at the age of thirty years unmarried, or a feme sole, or' after five years of married life she will be entitled to demand full possession of my estate from my executors.” Thus testator or settlor expressly terminated the trust and directed the delivery of the trust estate 'to his daughter without limitation or condition, which by express language he had “bequeathed to her solely.” The same provision as to vesting of title to. all of testator’s property and delivery of it to Virginia W. was made by testator in providing that if both executors failed or refused to-act, then the administration in the probate court should terminate when Virginia W. reached the age of thirty years, or had been married for five years, at which time she was given absolute authority to take personal charge of the estate.

Thé contingéncy provided for Frances C. never came into existence, because she died in 1933, at which time she was still a member of the Holy Cross Sisterhood. The other contingency that if Virginia W. should predecease Frances C. without issue, never occurred, because Virginia W. was living at the time of the death of Frances C. and had two children. And in any event both of these contingencies ceased to exist when under the express provisions of the will Virginia -W. had been married five years, at which time the fee-simple title to all the estate vested in her, and the entire' estate was delivered to her as directed by the will.

Appellants’ main contention is that as to them only a determinable or base fee was vested in Virginia W. by the seventh paragraph of the will, which provides : “If my daughter, Virginia W. should die without issue and my daughter Frances C. not survive her, then three-fourths of my estate shall go to my brother, Francis M., or his. heirs, and the remaining fourth to my brother, Leon J., or his heirs.”

But the contingencies thus provided for are controlled by the manifest intention of testator,'as gathered from his entire will, to vest the fee-simple title in Virginia W. when she reached the age of thirty years, or had been'married five years; and the contingencies provided for in the seventh paragraph ceased to exist' when Virginia W. had- been married five years, and at which time the entire estate was delivered to her as directed by the will. By no lam guage did testator continue the trust after the property was delivered to Virginia W. in accordance with the terms of the will, and the courts cannot add any language to the will which would continue the trust after Virginia W. had been married for five years. If testator had so intended, it would have been an easy matter for him to have said so. And’ since testator clearly intended that the fee simple or full title to all of his property should vest in Virginia W. when she reached the age of thirty years or had been married for five years, all of the contingencies of 'survivor-ship ceased to exist when under the facts she w;as shown to have been married five years. This conclusion is based- upon 'tlie cardinal rule of construction that the court must consider all of the provisions of á will and must construe it so as to ascertain and' effectuate the intention of the testator. Hughes v. Mulanax, 105 Tex. 576, 153 S.W. 299; Gallagher v. Redmond, 64 Tex. 622; Federal Land Bank v. Little, Tex.Civ.App., 79 S.W.2d 645; Jones v. Hext, Tex.Civ.App., 67 S.W.2d 441, error refused; 44 Tex.Jur., 680, sec. 134.

Our construction of the will as vesting the fee-simple title in Virginia W. when she reached the age of thirty years, or had been married five years, is also supported by the uniform rule of our courts that they will not construe a remainder as contingent when it can be reasonably taken as vested, because the law favors a construction which will result in the vesting of title to an estate created by will at the earliest time, and unless a later time is clearly expressed or necessarily implied. Capels v. Ward, 107 Tex. 341, 179 S.W. 856; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904; Jones v. Hext, supra; and Federal Land Bank of Houston v. Little, Tex.Civ.App., 79 S.W.2d 645.

Having construed or interpreted the entire will as showing the intention of testator to give and bequeath the remainder of his estate to his daughter Virginia W. when she reached the age of thirty, or had been married five years, no useful purpose can be served by a lengthy discussion of the meaning of the provision that, “if my daughter Virginia W. should die without, issue * * then the estate should go to testator’s brothers or their heirs. Suffice it to say that the several authorities cited by appellants which show the difficulties and conflicts found in the decisions in determining what the testator meant by •a limitation over if the first taker should “die without issue surviving,” are not applicable; because in the instant case the intention of the testator, as ascertained from a consideration of his entire will, clearly showed that he intended to vest the fee-simple title to the remainder of his estate in his daughter Virginia W. when she reached thirty years of age, or had been .married five years. Thus testator specifically provided that the limitation over in favor of his brothers, or their heirs, was applicable only until Virginia W. reached the age of thirty years, or had been married five years, in either of which events •the fee-simple title to the entire estate vested in her. And in any event, the provision of the will in the instant case, that “if Virginia W. die without issue,” cannot be interpreted to mean “die without issue surviving” her. This question on both fact and principle was determined in the case of Stafford v. Read, 244 Ill. 138, 91 N. E. 91, 94, wherein the court say: “* * we are constrained to hold that the words ‘shall die without issue’ were not intended to mean without issue or children surviving the first takers at the time of their death, but meant if they should die without having had issue or children born to them. The intention of the testator, as we gather it, was to make provision for James Clark Stafford and his brothers and sisters and the children that might be 'born to them or one or more of them, and that he did not have in contemplation, or attempt to provide for the contingency of, the death of children born to them before their deaths. Under this construction, the fee vested in the children of Ann Maria and the limitation over to the heirs of the testator wás defeated.”

The uniform decisions of other states are to the same effect, and no Texas case is cited or has been found by us, which holds that the words, “die without issue,” mean “die without issue surviving.” The facts bring the instant case clearly within the rule quoted, because Virginia W. Crockett has two living children. And since the will uses the words, “die without issue,” and children were born to the first taker (Virginia W.) the fee title vested in her to the estate of testator, and the limitation over to the brothers or their heirs 'was defeated.

The judgment of the trial court is affirmed.

Affirmed.

On Appellants’ Motion for Rehearing.

In their motion for rehearing, appellants contend that we are inconsistent in holding that “the particular objects of his (testator’s) bounty and care were his two daughters,” and our holding that testator intended to vest title in Virginia W. when she had been married five years, which was seven years before the death of Frances C. It is true that testator provided for the contingency and directed that if for any reason Frances C. abandoned the Holy Cross Sisterhood, then Virginia W. should' give her one-half of the property, which testator said he had “bequeathed to her (Virginia W.) solely.” This contingency never happened, because Frances C. died While she was still a member of the Holy Cross Sisterhood. Nor is this provision of the will related in any manner to paragraph 7, under which appellants’ sole contingency existed; and which contingency we held ceased to exist, as set forth in our opinion. The motion for rehearing is overruled.

Overruled.


source: Caselaw Access Project

author: WALTPIALL, Justice.

license: Public Domain

text:
    ROBERSON et al. v. RED BLUFF WATER POWER CONTROL DIST.
    No. 3949.
    Court of Civil Appeals of Texas. El Paso.
    June 6, 1940.
    R. T. Meador, of Dallas (A. T. Folsom, of Wink, of counsel), for plaintiff in error.
    Burges, Burges & Scott, of El Paso (J. F. Hulse, of El Paso, on the brief), for defendants in error.
   WALTPIALL, Justice.

This case presents an appeal from a judgment rendered and an order entered therein in the District Court of ' Reeves County, Texas, on the petition of defendant in error.

The order and judgment of the court from which this appeal is prosecuted is as follows: “It is therefore ordered, adjudged and decreed that the defendants Ronald Roberson and E. L. Stratton be, and they are hereby, perpetually enjoined from, and that they shall desist from interfering with, or using force, threats of force, or violence on the officers, agents and employees, of plaintiff Red Bluff Water Power Control District constructing and building fences, roadways, levees, and other improvements upon its properties; and that the defendant Ronald Roberson be, and he is hereby, perpetually enjoined from, and that he shall desist, using the properties of plaintiff Red Bluff Water Power Control District for the purpose or purposes of conducting a business thereon, operating boats and renting boats, fishing tackle and other equipment upon the properties of plaintiff Red Bluff Water Power Control District; that plaintiff do have and recover of the defendant Ronald Roberson, the sum of One Dollar ($1.00) actual damage; and that plaintiff have judgment and recover of the defendants Ronald Roberson and E. L. Stratton all cost of suit; for all of which let writs of injunction and execution issue.”

The case was tried to the court without a jury.

At defendants’ request the court made and filed findings of fact and conclusions of law.

The findings of fact made by the court are comprehensive, and sufficiently embrace all the fact issues pleaded by all the parties. The findings of fact are as follows:

“1. That plaintiff is a water power control district and water improvement district duly organized, incorporated and existing under and by virtue of Section 59 of Article XVI of the Constitution [Vernon’s Ann.St.] and Chapter 2, Title 128 of the Revised Civil Statutes, 1925, and amendments thereto, of the State of Texas [Vernon’s Ann.St. art. 7622 et seq.].
“2. That plaintiff has a valid and subsisting permit from the State Board of Water Engineers of the State of Texas for the appropriation of flood waters of the Pecos River.
“3. That plaintiff completed in September, '1936, the construction of a large earthern dam across the Pecos River, approximately ten miles below the Texas, New Mexico boundry line thereby creating an artificial lake and body of water of 300,000 acre feet at said reservoir, at an expenditure of approximately $2,885,000.00. That said water is used to irrigate approximately 35,000 acres of land lying below said dam and for hydro-electric power. That the amount of water in said reservoir varies from day to day and month to month, according to the use of same for irrigation and hydro-electric power purposes.
“4. That plaintiff owns and possesses about 14,000 acres of land for said reservoir site in Texas, same being the land covered by the waters of said artificial reservoir • and a strip of land above the highest elevation of the flood-spillway gates.
“5. That in Section 16, Block 57, Township One, Texas & Pacific Ry. Co. Survey in Reeves County, Texas, plaintiff owns 448.1 acres of land as part of said artificial lake and reservoir site on the East side of said section. Plaintiff’s land in Section 16 is land inclosed partly by fence and partly by water of the reservoir.
“6. That the remainder of said section is owned by Mrs. Cecilia M. Stratton Bell, from whom the defendant E. L. Stratton holds a power of attorney, and that the defendant- Ronald Roberson has an undivided interest in a leasehold estate for 10 years from October 11, 1938, to one acre of said land which said acre for • a distance of 80 feet adjoins plaintiff District’s land in said section.
“7. That plaintiff purchased said 448.1 acres from Mrs. Cecilia M. Stratton Bell and her husband, Donald S. Bell, and the Black Reef Oil Company, a corporation, acting by and through its President, E. L. Stratton, for a cash consideration of $13,-472.65 paid for said 448.1 acres of land and other lands.
“8. That plaintiff holds title under a warranty deed from Mrs. Cecilia M. Strat-ton Bell and her husband, Donald S. Bell, and the Black Reef Oil Company, a corporation, acting by and through its President, E. L. Stratton, to the fee simple estate to said 448.1 acres of land in said Section 16, Block 57, Township One, and no reservations, easements or profit a prendre were excepted or reserved in said conveyance.
“9. That said Section 16, at the time of the entry thereupon and application for purchase from the State of Texas, at the time plaintiff’s portion was patented, nor at any time between, ever abutted upon the Pecos River or other water course, nor did any stream or water course run by or through said Section 16. That said Pecos River at all times above specified ran in a Southeasterly direction through Section 15, same block and survey, which said Section 15 lies directly East of Section 16. Each of said sections is one mile square and contains 640 acres.
“10. That at all times since June, 1937, flood waters impounded in said reservoir have flowed over and inundated and now inundate portions of the eastern part of said Section 16 owned by plaintiff.
“11. That the Board of Directors of plaintiff district adopted, at a regular meeting on 19th of July, 1938, a resolution and order as follows, to-wit:
“ ‘Be it resolved by the Board of Directors of Red Bluff Water Power Control District that the following rules and regulations apply to the regulations of residence, boating and camping and all recreational and business privileges at and upon Red Bluff Reservoir and that the land owned and controlled by this District adjoining, surrounding and adjacent to said reservoir are adopted and promulgated as reasonable rules and regulations deemed necessary for preserving the sanitary condition of the waters of said Reservoir controlled by the District and to prevent waste of water and to prevent the unauthorized use of said property and to safeguard the welfare and health of all persons using said properties and going upon same, and to safeguard the interest and responsibility of this District as the owner of said property, and to safeguard and maintain order and prevention of disturbances thereon, and to safeguard and maintain said property belonging to this District and the duty imposed upon this District by law to police and condition and preserve the waters of said Reservoir in accordance with the provisions of an act of the Legislature of the State of Texas, 47th Legislature, 2nd Called Session, Acts 1935, Chapt. 293.
“ ‘The said properties of the District including specifically all land owned by the District surrounding said Reservoir are hereby declared to be restricted to the use of said District and that no one shall have the right to go upon, over, across or in any way use said property except the officers and employees of said District acting in their official capacity and such other persons as may be issued permits therefor in accordance with the rules and regulations adopted with reference thereto.
“ ‘The General Manager of the District is vested with the duty and responsibility to control, police, care for and maintain said property in a sanitary, healthful, orderly and proper condition and to make and enforce all rules and regulations pertaining thereto and enforce same and to select, appoint and employ such assistants as may be required from time to time in the full performance of such duties vested in him by this Board and all duties pertaining to the policing and care of said property and maintaining possession thereof for the District and all other functions necessary to the care and maintenance of said property not specifically set out in rules and regulations are vested in said General Manager until otherwise ordered by the Board of Directors.
“ ‘All residence and camping privileges on said properties shall be confined to those particular places thereon for which leases and permits shall be issued therefor. All lots leased for use as residence or campsites shall be limited in their use to the party to whom same is leased and his immediate family including his wife and minor children. Any other party using such leased property or camp site shall pay charges established by the District or or the General Manager for use of such property and recreation and resort features. Any person who shall have leased or secured a permit for the use of any lot or campsite shall be responsible to the District for any charges due by others using said property.
“ ‘The rule heretofore established for the' leasing of campsites, except as modified herein, shall remain in effect until changed by the District.
“ ‘No person shall be allowed to go over said property, pass over, use or remain upon same unless he shall have first secured a permit therefor, either as the lessee of a campsite or shall have paid for and secured a season permit or a daily permit and has paid for same.
“ ‘No business or license of any character or nature pertaining to the operation of a business shall be carried on or permitted upon the said property of the District until the party thereto shall have entered into a proper contract with the District therefor.
“ ‘No business or concession of any character shall be permitted upon said property except in certain defined areas within 1500 feet of the District’s office building located near the Dam on said property and the District shall at all times have said area properly policed to safeguard any one entering upon said area and to maintain order therein and to safeguard and maintain proper sanitary rules and regulations therein.
“ ‘The General Manager shall prepare and enforce proper rules and regulations pertaining to the use of boats and boat equipment and power boats on said reservoir and shall enforce same subject only to the orders of the Board of Directors. After the making of such rules and regulations pertaining to the use of boats on said Reservoir the General Manager shall submit same for approval to the next regular meeting of the Board of Directors but same shall remain in full force and effect until and unless changed by order of the Board of Directors.
“ ‘All persons going upon, over, on and in anywise using the property of the District herein defined being on lands owned by the District around, adjoining and adjacent to said Reservoir and within one-half mile of said Reservoir, insofar as owned by the District shall secure a permit therefor and be subject to all rules and regulations pertaining thereto adopted by the General Manager or adopted by the Board of Directors. The fees to be charged for such permits other than those pertaining to lessee of a campsite and to holders of a season permit shall be $1.00 per day of 24 hours and such permit issued to a married man shall include his wife and minor children and such permit issued to a single man shall include himself and a lady guest if actually accompanied by such lady. Boats rented by the District shall be rented for a charge of $1.00 per day, and minnows and other things and facilities furnished by the District shall be charged for at such fees as may be fixed from time to time by the General Manager.
“ ‘All income from such fees and charges shall be applied insofar as required to the expense of providing such services and of maintaining sanitary conditions preventing waste of water, preventing a polution of water, policing and preserving the property of the District and maintaining order thereon and providing drinking water, hotel accomodations, roads, recreational facilities and in all respects developing, maintaining, policing and controlling said area and said Reservoir and its waters for the use of said District and the reasonable and proper use of said area as a recreational ground for the benefit of all persons who may properly use same under the rules and regulations .pertaining thereto and any balance remaining in said fund shall be used to maintain the Dam forming said Reservoir and the properties of the District pertaining thereto and necessary to the maintenance of said Reservoir and to provide recreational facilities for the use of those having permits to use same and any and all persons shall have the right to so use same upon the payment of such fees necessary to the creation and maintenance of same and the maintenance, policing and use of same as such recreational grounds as provided for and under the authority of all laws pertaining to the ownership and use of property and the laws of the State of Texas vesting such responsibility and control of said Reservoir and property in said District as the owner of said lands and as the agent in control of said Reservoir.'
‘The General Manager shall compile and have printed rules and regulations applying to the use of said property and shall post copies thereof on said property within the area herein designated for business purposes.’
“That notice by publication as required by Chapter 293 of Acts of 1935, 44th Legislature [Vernon’s Ann. Civ. St. art. 7652a] was duly given of the substantial substance of said resolution as required by law.
“13. That plaintiff makes a charge of $10.00 for an annual permit, or $1.00 for a daily permit. That said permits are in words, as follows:
“ ‘No. 2750 Receipt for Recreational Privileges This Park and Reservoir is owned by Red Bluff Water Power Control District. Cost of Reservoir lands $88,000.00. Construction of Reservoir about $2,300,000.00. Total Projects cost $2,884,000.00. Maintenance of Reservoir $10,000.00 per annum. Daily interest charge $260.00, monthly $7,200.00. There would be no park or recreation facilities here except for the construction and maintenance of this property.
“ ‘This debt is paid by the farmers of the District and if they furnish you a playground, you should gladly pay the small amount charged to help in a small way to carry the cost.
“ ‘-.M. —— day of-, 1938.
“ ‘Received of-, Post Office-
“ ‘Auto No.-
“ ‘1. Daily Ticket $-■
“ ‘2. Boat Rental -
“ ‘3. Minnows -■
“ ‘4. Swimming -
“ ‘5. _(
“ ‘Total $--
“Resident taxpaying property owners who have rendered $1000 or more property for taxation to plaintiff district are allowed the recreational privileges of the property and reservoir as taxpayers in said district. Defendant E. L. Stratton is a resident . taxpaying property owner who has rendered $1000 or more property for taxation to plaintiff. That holders of said permits and said property owners use the recreational privileges of plaintiff’s property and reservoir for camping, picnicking, swimming, boating, fishing and as a general playground.
“14. Defendant Ronald Roberson repeatedly trespassed on and over property of plaintiff and was carrying on a business of renting boats, fishing tackle, motors and other equipment on property of plaintiff in said Section 16, ■ and on said reservoir, between August, 1938 and November 5, 1938, without any contract, consent or permission oí plaintiff and contrary to said plaintiff’s rules and regulations, above set out.
“15. That on or about the 19th day of October, 1938, defendant Ronald Roberson by use of threats caused employees of plaintiff to leave unfenced portions of plaintiff’s property in said Section 16, which said fence was being constructed entirely on property owned by plaintiff.
“16. That on or about the 25th day of October, 1938, defendant E. L. Stratton by use of threats caused employees of plaintiff to leave unfinished a roadway and levee being constructed by plaintiff on property owned by it, in said Section 16, and at said time the said defendant Roberson was present with'said defendant Strat-ton.
“17. That said Section 16 lies in the watershed of the Pecos River and a portion of said Section 16 owned by plaintiff has at all times since said lake was filled been submerged by the waters thereof.
“18. That defendant Ronald Roberson applied to an employee of plaintiff for an annual permit for recreational purposes, and was advised to see the General Manager therefor. Said defendant did not make application to the General Manager for same.
“19. That the Pecos River in Texas has been (by stipulation of counsel) since 1890 a navigable stream as defined by law.
“20. That plaintiff has had possession and control of its properties and reservoir at all times since acquiring same in 1934.
“21. That after the issuance of the temporary injunction against defendants on November 5, 1938, plaintiff erected its fence and roadway and levee on said Section 16.
“22. I find, by stipulation of counsel it was agreed, said Section 16 at the time same was granted by the sovereignty, did not abut upon the Pecos River nor did any stream or water course run by or through said section. That certified copies of early field notes of said section 16 indicated that in 1877 that the calls for courses and distances of Section 16 indicated a crossing of the banks of the Pecos River. That entry upon said section and application for purchases from the state as public school land was made in 1913 and patent was issue to plaintiff’s portion thereof in 1934. That said patent was issued on field notes determined under the entry of 1913 and not upon the survey made in 1877.
“23. I find that on June 17, 1937, the Board of Directors of plaintiff passed the following resolution:
“ ‘Camp sites will be laid off approximately 150’ x 150', these to be rented for cash payment of $25.00 and $2.50 per month for a term of 10 years, giving lessee first option on renewal of lease.
“ ‘The party renting a camp shall have the privilege of using the facilities of the Lake for boating, bathing, fishing and other recreations, provided if he uses facilities' for concessions or facilities provided by the District he will pay the charges established for same.
“ ‘The privilege attaching to the rented premises are limited to the lessee and his immediate family, who will be named in the lease. Any other party using such camp shall pay charges established by the District or in its authority for use of recreation and resort features.
“ ‘The General Manager is authorized to lease grounds for concessions on the following basis:
“ ‘All concessions shall pay to the District as rental 10% of the gross income of the business, such payments to be made on. Monday of each week for the' pri'or week ending each Saturday night at 12 o’clock. The District shall have the right at all times to inspect the premises, investigate and check the gross income of such business.’
“24. I find that plaintiff District through: its employees demanded the ■ charge for recreational permit from persons found using the recreational facilities of plaintiff District who were not entitled to same, under the rules and regulations of plaintiff.
“25. I find that the defendant Ronald Roberson did and performed such acts' as' found in paragraph 14 of the original' findings of fact under a claim of riparian or littoral rights as an owner of an' undivided one-half interest in a leasehold estate to one acre from October 11, 1938.
"26. ' I further find in connection with paragraph number 15 of the original findings of fact, that plaintiff was constructing said fence within its own property line and in a manner to prevent defendant Ronald Roberson from doing the acts complained of in paragraph 14 of the original findings of fact and. to prevent said Roberson passing over plaintiff’s land as access to the water of the lake where he had been watering a team of mules and securing water for domestic purposes for a period of approximately two months.
“27. I further find that the roadway and levee being constructed by plaintiff (original findings, paragraph 16) would prevent waters of the lake from hereafter flooding or reaching lands in Section 16 not owned by plaintiff.
“28. I find that all Section 16 lies in the watershed of the Pecos River.
“29. I further find that the plaintiff’s agents issue permits to other persons without the applicants being required to make application to the General Manager for same; that agents and employees of plaintiff District were instructed to refer the defendant Ronald Roberson to the General Manager; that defendant Ronald Roberson was an employee and agent of the plaintiff District in May, 1938; that said employment was terminated on or about the 28th day of May, 1938; that immediately thereafter said defendant began pursuing the business of renting of boats, motors and other equipment upon said- land; and, that said defendant did not make application for any permit until August or September, 1938.
“30. I find that after the issuance of the temporary injunction plaintiff completed its fence in Section 16 and left no opening or gates for the benefit of the defendants.”

The court stated several conclusions of law to the effect that Section 16 has no riparian or littoral rights in law; that Roberson and Stratton had no right to go upon the property of the Water Company without permission; that the Company had the right to fence its property on Section 16 and erect all improvements incident thereto and to adopt and promulgate reasonable rules in control of its properties; that defendants had committed the troubles complained of and should be restrained, and so granted the injunction.

There is no statement of facts. " The record filed here consists of the transcript only.

In the opinion we will designate plaintiffs in error as plaintiffs, and defendant in error as defendant.

In the absence from the record of a statement of facts or question raised and presented as to the sufficiency of the pleading or evidence or both to sustain the trial court’s findings of fact, or any of the findings, this court is necessarily bound by the facts found by the trial court. For the purposes of judgment and review the findings of fact and conclusions of law have the force and effect of a jury verdict, and must be accepted as true in fact, unless excepted to and assigned as erroneous and shown by the record to be untrue. Williams v. Planters’ & Mechanics’ Nat. Bank, 91 Tex. 651, 45 S.W. 690; 41 Tex.Jur. p. 1274, par. 399, and cases in note 11.

We overrule plaintiffs’ assignment of error to the effect that the court erred in overruling their general demurrer.

This suit was filed on October 31, 1938, by the defendant as a Water Power Control and Water Improvement District incorporated under and existing by virtue of the laws of the State of Texas, and particularly by Article 16, Section 59 of the Constitution of Texas, Chapter 2, Title 128, Revised Civil Statutes of Texas, 1925, and amendments thereto, as pleaded by defendant, and as found by the court. Defendant also has a valid and subsisting permit from the State Board of Water Engineers of this State for the appropriation of the flood waters of the Pecos River, and embracing the rules and regulations of the Board as authorized to adopt and promulgate under subdivision 1 of Art. 7652a, Vernon’s Ann.Civ.St.

We have stated above the various matters and things possessed, done and owned by defendant Water District embracing its 14,000 acres of land for its reservoir site, and the other matters alleged and found by the court, but which for brevity we omit restating here. The Board enjoined upon the defendant certain duties in the matter of the control of its properties, to which we refer without quoting, such duties being statutory.

Plaintiffs claim the right and privilege to go upon defendant’s property without permission and exercise the same rights and privileges as granted defendant Water District by reason of their land being riparian to the Pecos River, and by reason of an alleged reservation in the grantors of a portion of said Section 16, upon a portion of which the reservoir is built. The court found the facts against plaintiffs on each of said contentions.

Defendant in its amended original petition alleged its ownership of the properties here involved, including' all the land adjacent and contiguous to the Pecos River in Reeves and Loving Counties, Texas, from the dam to the New Mexico state line, below the elevation of 2846 feet; it alleged the adoption by its Board of Directors of the rules and regulations concerning residents, boating and camping, and all recreational and business privileges at the reservoir, and its land around its reservoir; it alleged the repeated trespasses of plaintiff Roberson upon defendant’s property conducting thereon a boating and fishing business, which, as alleged, causes irreparable damage to defendant, and that Roberson has threatened to use violence towards defendant’s officers and agents to prevent its erection of a fence it is erecting upon its property, thereby •causing irreparable injury to defendant; similar allegations are made with reference to defendant’s construction of a roadway, levee and other improvements upon its property, and that in all of the acts of Roberson complained of, plaintiffs Strat-ton and Roberson acted jointly and severally, and defendant pleaded that unless plaintiffs are restrained they will continue in their actions complained of, and for which it has no adequate remedy at law, and prays for damages and injunction.

We have concluded that the petition is good as against the general demurrer, and that under the facts pleaded and found by the court defendant was entitled to the injunction granted. 4 Pomeroy’s Equity Jurisprudence, Sec.1357, 4th Ed.; Kibbin v. McFaddin, Tex.Civ.App., 259 S.W. 232; Heath v. Diversion Lake Club, Tex.Civ.App., 33 S.W.2d 479.

Defendant’s allegation of an unqualified ownership of its properties is a denial of any rights of plaintiffs to the properties, riparian or otherwise. If plaintiffs’ lands were riparian to the Pecos River, and had rights by reason thereof, or had rights by reason of reservations or otherwise, such rights we think were defensive matters and rested with plaintiffs. Plaintiffs pleaded them, and the court found against plaintiffs on the facts. In the condition of the record presented here, the defensive matters pleaded of riparian rights and the reservation of Mrs. Bell in conveying a part of Section 16 to defendant go out of the case.

In June, 1926, in the case of Motl v. Boyd et al., 116 Tex. 82, 286 S.W. 458, Judge Cureton, for the Supreme Court of this State, wrote an opinion in which he reviewed in detail the various rights of riparian owners of lands to the use of the waters of the streams in the State both for domestic use and for irrigation purposes. We can refer only briefly to some portions of the opinion which, in our opinion, state the extent of the right of a riparian owner of lands to the use of the waters on the Pecos River.

It is held in the opinion that the irrigation rights of riparian owners of lands are limited to the ordinary and normal flow of the waters, and do not extend to their flood waters. The opinion clearly defines each of the expressions “ordinary and normal flow” and “flood waters.”

• Defendant’s petition on which it went to trial alleges that it impounded the “flood waters of said Pecos River to be held and distributed by said district for irrigation and hydro-electric power purposes, all as authorized by the Constitution and laws of the State of Texas,” and the court found that the waters impounded by defendant in its reservoir are “flood waters.”

We have considered the other assignments and propositions presented by plaintiffs not discussed, and have concluded they present no error. They are each overruled.

The case is affirmed.


author: CODY, Justice.

text:
    FARMERS ROYALTY HOLDING CO. et al. v. CHERRY.
    No. 11016.
    Court of Civil Appeals of Texas. Galveston.
    June 6, 1940.
    Rehearing Denied July 3, 1940.
    John T. Vance, of Edna, Scurry & Scurry, of Dallas, and Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Okl., for appellants.
    Rose & Sample, of Edna, for appellee.
   CODY, Justice.

The primary question for determination in this case is whether, under the facts here presented, the rule — that a title subsequently acquired to land-by a grantor, who had previously conveyed an interest therein under warranty of title, passes eo irstante to the grantee — is here applicable.

The facts here presented are these: Dan Webel and wife owned the land involved in this suit, subject to the outstanding superior title and vendor’s lien securing notes given by said owners as the purchase price for said land (which notes and security were owned by one. William Kemper, at the time that the owners gave certain mineral deeds to the minerals in the land involved in this suit); one deed being a mineral deed, which was forthwith recorded; to Farmers Royalty Holding Company, which contained a general warranty of title; and another mineral deed, which was also forthwith recorded, to G. T. Blankenship, which contained a general warranty of title; and a portion of the interest conveyed to Blankenship was thereafter conveyed to W. R. Jarrett. A short while after the date of the mineral deeds just referred to, Dan Webel and wife filed suit in the District Court of Jackson County against the grantees in the aforesaid mineral deeds and their successors, in interest, to have said deeds cancelled. The defendants in the suit brought by Dan Webel and wife for cancellation of said mineral .deeds had said cause removed to the Federal District Court. At this stage, William Kemper brought suit in the District Court of Jackson County, as the owner of the superior title and purchase money notes, to rescind the conveyance and recover the land involved in this suit, and made Dan Webel and wife, and each grantee in each mineral deed, and their successors in interest, parties .defendant to such rescission suit. In this suit for rescission, William Kemper recovered “all the rights, titles and interests” of each, of the defendants in the land involved in this suit, and by judgment in said suit the same were divested out of said defendants and vested in • William Kemper. Thereafter, on September 27, 1934, William Kemper and wife conveyed the land involved in this suit to the said Dan Webel in consideration of notes aggregating $1,550. Thereafter, on October 30, 1934, W. O. Cherry (appellee here) paid to Webel, as consideration for a deed to this land, $3,600 in cash, and gave his note —since paid — for $400, which consideration has been applied, according to agreement, in paying off the outstanding vendor’s lien notes given by Webel to Kemper on September 27, 1934. Cherry had no actual knowledge of any claim against the land other than the vendor’s lien of September 27, 1934, and did not actually know appellants, or those under whom appellants claim, claimed any interest in the land. The vendor’s liens retained by Kemper, and by Webel, had been paid off and released; and appellee Cherry gave a mineral lease on the land here involved on April 5, 1938, and has collected all delay rentals thereon. W. O. Cherry brought this suit in trespass to try title against appellants, who are the grantees in the mineral deeds, aforesaid, or the successors in interest to said grantees in the mineral deeds. The appellants all filed formal answers, and pled “not guilty”, and pled the mineral deeds under which they claim, and pled the general warranty of title from Dan Webel and wife, and pled that appellee was estopped from asserting a title from Dan Webel which was “an after-acquired title” that had passed to appellants, etc.

The case was tried without a jury, and the court rendered' judgment for plaintiff, who is appellee here. At the request of appellants, the court filed his findings of fact, and conclusions of law. The substance of these findings of fact we have set forth above.

“It is established in this state that ‘when one conveys land by warranty of title, or in such manner as to be estopped to dispute the title of his grantee, a title subsequently acquired to that land by the grantor will pass eo instante to his war-rantee, binding both the warrantor and his heirs and subsequent purchasers from either.’ Baldwin v. Root, 90 Tex. [546], 553, 40 S.W. 3, 6. It is also settled that the registration of such instrument of conveyance affects subsequent purchasers under the grantor with constructive notice of the instrument (Robinson v. Douthit, 64 Tex. 101; Leonard v. Benford Lumber Co., 110 Tex. 83, 216 S.W. 382); provided the title, which is acquired by the grantor after the instrument is executed, originated prior to the execution of said instrument (Breen v. Morehead 104 Tex. 254, 136 S.W. 1047, Ann.Cas.19, 4A, 1285; Williams v. Cook (Tex.Com.App.) 282 S.W. 574).” Caswell v. Llano Oil Co., 120 Tex. 139, 36 S.W.2d 208, 211.

The foregoing quotation is part of the answer made to certain certified questions, which was adopted by the Supreme Court. In the Caswell case just quoted from the facts were that the owner of land, after he had placed a deed of trust thereon, gave to H. H. Patterson an oil and gas lease for a valuable consideration, who transferred it to the Llano Oil Company with general warranty of title. Thereafter, and after default in payment of the deed of trust notes, the deed of trust lien was foreclosed, the foreclosure sale being held by the substitute trustee, and sale of the land was made to Otto Stolley; and the oil and gas lease theretofore given by the original owner to H. H. Patterson, and by him transferred to Llano Oil Company, was cancelled and terminated. Thereafter, Otto Stolley, the purchaser at the foreclosure sale, conveyed the land to the original owner (who had given the deed of trust thereon, and then given the mineral lease which was transferred to the Llano Oil Company) and then such original owner gave a mineral lease to the plaintiff in the case, for a valuable consideration, and such plaintiff was without actual knowledge of the adverse claim of the Llano Oil Company. The Supreme Court, through its Commission of Appeals, held: “It appears from the certificate that the title to the two sections of land in controversy, which was acquired by Lockhart [original] owner from Stolley, originated some time prior to the execution by Lockhart of the mineral lease to Patterson. This lease containing as it does a covenant of warranty of title, was duly of record when Caswell [plaintiff] purchased from Lockhart, and Caswell was thereby affected with constructive notice of the rights of the Llano Oil Company in the land, as assignee of Patterson.”

And the court further held that it was immaterial whether the sale by the substitute trustee was valid or not so far as concerned the right of the Llano Oil Company to take by “after-acquired title’’ of its warrantor of title. The Llano Oil Company was obviously entitled to prevail if the trustee’s sale was void, if it was entitled to prevail even if the trustee’s sale was valid.

It is undisputed that Webel and wife had given the mineral deeds under which appellants claim at a time which the superior title was outstanding to secure the payment of the unpaid purchase price notes and that said mineral deeds contained a covenant warranty of title; i. e., to say Webel and wife gave a warranty to the effect that the superior title was not outstanding and that they had a right to convey the title to the minerals which was.conveyed in the mineral deeds. The title which Webel and wife warranted to appellants failed when Kemper recovered judgment in the case of Kemper v. Webel et al., against Webel and wife and against appellants. And if the mineral deeds were procured by appellants from Webel and wife upon a valuable consideration, the moment that the title failed — the moment that Kemper recovered the title by rescinding the sale of the land involved in this suit — Webel and his wife became liable to appellants for the breach of their covenant of warranty. And under the Caswell case and the authorities therein cited, the remedy of appellants against Webel and wife for the breach of their warranty of title to the minerals after Webel and wife acquired the title to such minerals, is simply to require the Webels to make their warranty of title good by treating the title as passing into appellants the instant that it passed into Webel.

It is appellee’s contention, however, that the language of the judgment in the case of Kemper v. Webel et al., divested completely and absolutely all the right, title and interest of the defendants in the suit out of them, and vested the title thereto in Kemper. Appellee further contends that when the very language of the judgment divests all the rights, titles and iñterests of appellants in the minerals, that the divestiture of all the rights owned by appellants in the land necessarily includes the divestiture of right of appellants to the land if Webel and wife thereafter acquire such land. And further that if the judgment in the case of Kemper v. Webel goes further then it should, and is erroneous, yet appellants did not appeal from said judgment, and it is now final and binding, and appellants cannot treat such judgment as a nullity. Furthermore, appellee contends that it is a very valuable right to the owner of land to have the whole world for a market to sell in, and that if the rule in the Caswell case should be enforced it would deprive one who forecloses on land of the valuable right to sell the land foreclosed on to a former owner who was situated with respect to it as Webel to the land here involved; for if Webel knew that by purchasing the land he was merely acquiring it for his warrantees in former conveyances he would never purchase it.

It is not true, we believe, that the owner of property is entitled to the whole world as prospective ‘purchasers of such property. He is not entitled- to sell it, for instance, to any who are under legal disabilities, such as lunacy or minority. And where he has sold land and warranted the title thereto, and yet did not own the land at the time he sold it, it is clearly the duty of such a one, if he is able, to buy such land, and thereby make his warranty good, or compensate his warrantees for breach of his warranty. In any case, this is the law as it now stands and arguments for changing it should be addressed to the legislative branch of Government.

To us it is self-evident that the judgment rendered in the case of Kemper v. Webel et al., and which appellee relies on, did not have the effect of precluding the defendants, or any of them, in that suit from thereafter acquiring the title to the land which constituted the subject matter of that suit. Citation of authority in support of this point is superfluous, but see R. B. Godley Lumber Co. v. C. C. Slaughter Co., Tex.Civ.App., 202 S.W. 801, 802, and cases there cited. Indeed, both appel-lee and appellants are here claiming that Webel, one of the defendants in that suit, did acquire the title to such land from Kemper. And the only dispute between the parties is the legal effect which followed the vesting of Webel with the after-acquired title to said land. Appellee contends that Webel took the land free from the obligation imposed upon him by the breach of his covenant of warranty. Appellants contend that the law imposed on Webel the obligation to use the land to make good his covenant of warranty. The Caswell case sustains appellants’ contention.

If appellants acquired their mineral deeds upon a valuable consideration, it was clearly the duty of Webel to protect appellants against the outstanding vendor’s lien notes against which he had given warranties. Pursuant 'to this obligation, We-bel should have paid off the indebtedness due Kemper and should not have suffered Kemper to recover the title to the land. There is nothing in the judgment which was rendered in the case of Kemper v. Webel et al., that, by any possible construction, can be given the effect of relieving Webel of the obligation to make appellants whole, after breaching his covenant of warranty of title. The effect, and the only effect of vesting appellants with the after acquired title to minerals, is to make appellants whole at the hands of Webel.

We realize that appellee purchased in actual ignorance of the rights of appellants, and that the practical result is that appellants obtain a windfall at the expense of appellee. This hardship is cast oh ap-pellee by the constructive notice with which the registration of the mineral deeds charged him. The right of appellants to recover the after-acquired title is dependent upon their covenants of warranty of title which were enforceable against Webel. If they were fraudulently obtained, as Webel contended in the suit that was removed to the Federal court, which contention abundantly appears in this case, then they should not be enforced. The fact that the court rendered judgment for appellee in this suit upon the theory that the judgment in Kemper v. Webel et al. cut off appellants, should not be permitted to deprive appellee of the right to defend on the ground that the mineral deeds were fraudulently procured.

The judgment of the court is reversed, and the cause remanded for a new trial.

Reversed and remanded.

On Motions for Rehearing.

The motions of both parties have been duly considered, and are overruled. The case of Waldo v. G., H. & S. A. Ry. Co., Tex.Com.App., 50 S.W.2d 274, is ample authority to support our action in remanding the cause for a new trial. Unless appellants are able to establish that the covenants of warranty which entitle them to recover, if at all, are valid and enforceable, they are not entitled to prevail under the doctrine of after acquired title. And if, under the law of constructive notice, appellee is bound to take the title from Webel burdened with his obligations in connection therewith, certainly appellee’s position in that connection cannot justly be more onerous than Webel’s position would be.

Overruled.


author: PRICE, Chief Justice.

text:
    PLEASANT VALLEY COMMON SCHOOL DIST. NO. 7 et al. v. STORY, County Judge, et al.
    No. 3948.
    Court of Civil Appeals of Texas. El Paso.
    May 23, 1940.
    Rehearing Denied June 20, 1940.

      W. S. Moore, of Gainesville, and C. H. Slaughter, of Stanton, for appellants.
    Vernon D. Adcock, of Lamesa, for ap-pellees.
   PRICE, Chief Justice.

On February 6, 1939, Pleasant Valley Common School District No. 7, wholly in Martin County, had, as one of its boundaries, a common boundary line with Klon-dyke Independent School District, wholly in Dawson County. On that date the County School Board of Martin County, on a petition of the residents of the Pleasant Valley Common School District, entered an order on the minutes of the Board purporting to change said Pleasant Valley District from a common school district to an independent district, with the identical area as it had as a common school district. In this order an election was called for April 1, 1939, for the election of seven trustees from the new district. This election was duly held on the date called and seven trustees were elected, four of whom thereafter qualified.

In pursuance of proper petitions signed by the requisite number of residents in the Pleasant Valley District, the County Judge of Martin County called an election to be held on the 18th day of March, 1939, to determine whether or not Pleasant Valley Independent School District be consolidated with said Klondyke Independent School District in Dawson County. A like election for a like purpose was called by the County Judge of Dawson County for the same date in the Klondyke District to determine whether or not the Pleasant Valley District should consolidate with it. These two elections were each held arid at 'each election the result was in favor of consolidation. The Commissioners’ Court of the respective counties each so declared and certified the results. Thereafter appellants filed this contest in the District Court of Martin County seeking to have such election declared void and enjoining all action thereunder. The trial was to the court and the judgment denied all relief sought by appellants. From which judgment this appeal was duly perfected.

The main ground for assailing the election was that the order of the County Board of Trustees changing Martin County District from a common to an independent district was void, and that the question really voted on at the election was whether two independent school districts should be consolidated, and not whether a common and an independent district be consolidated. The alternative position is taken that if the order of the County Board of Martin County was effective, then there is no authority in law to consolidate the two districts.

It seems to be the position of each party that the order of February 6, 1939, of the County Board of Martin County was void and ineffective. In the case of Pyote Independent School District v. Dyer, Tex.Com.App., 24 S.W.2d 37, it was held that Sec. 5 of Art. 2742b, Vernon’s Ann.Civ.St., purporting to confer the power on the County Board to change a common school district into an independent school district, was unconstitutional. This portion of the law was held unconstitutional by the Supreme Court for the reason that the title or caption to the Act did not mention this sub-' ject matter as required by Sec. 35 of Art. 3 of the Constitution, Vernon’s Ann.St. The Supreme Court, in the case on rehearing, 34 S.W.2d 578, based on a validating act of the Legislature, held that the district under such validating act had legal existence. The holding as to the unconstitutionality of the section in question was not disturbed. It does not appear that the section of 2732b, under consideration in Pyote Independent School District v. Dyer, supra, has ever been re-enacted by the Legislature. We are, therefore, of the opinion that the action of the County Board was void and ineffective. Conclusion follows that, despite the order of the Board, Pleasant Valley remained a common school district, and was unaffected by said order. It was such common school district at the time the election was called and at the time same was held.

The elections called by the respective County Judges of Martin and Dawson Counties were to determine whether or not the miscalled Pleasant Valley Independent School District be consolidated with the Klondyke District. This was the question voted upon in each district. This was the result declared by the respective Commissioners’ Courts.

Section 5b of Art. 2742b authorizes the consolidation of a common school district in one county with a contiguous independent district in another. The procedure prescribed by law seems to have been complied with in all material respects. Pleasant Valley was, before the election, a common school district contiguous to the Klon-dyke Independent District in Dawson County.

The position taken is, that because, throughout, the Martin County District was referred to as an independent district, the election did not have the effect of consolidating the two districts.

The power delegated to the voters of school districts to determine the question as to consolidation under the conditions imposed by law is legislative in its character. If in the instant case the proceedings taken evidence an -intention to consolidate the two areas involved as an independent school district this intention should be vindicated. It does not appear that there was any area other than the Pleasant Valley Common School District that was referred to as the Pleasant Valley Independent School District, Indisputably the areas are the same. The documentary evidence in evidence establishes clearly'why same was called an independent instead of a common school district. Under the attempted change it does not appear that the district took any action as an independent district other than the election of seven trustees, four of whom qualified as such. The purpose of the election was to constitute the two areas involved an independent school district with the powers incidental to such a quasi municipal corporation. The real question was whether the two areas be constituted into one. We are of the opinion that this in reality was the question submitted at each election. This question was decided by the respective voters'of each district. The act of the in-strumentalities charged with the duty of determining as to the area and establishment of school districts should receive a fair, liberal and practical construction. County School Trustees of Runnels County v. State, Tex.Civ.App., 95 S.W.2d 1001.

The judgment of the District Court is affirmed.


author: O'QUINN, Justice.

text:
    EARLY v. BURNS et ux.
    No. 3682.
    Court of Civil Appeals of Texas. Beaumont.
    June 17, 1940.
    Rehearing Denied June 26, 1940.

      Edward A. Belsterling and James L. McNees, both of Dallas, for appellant.
    Albert S. Reagan and Ellis P. House, both of Dallas for appellees.
   O'QUINN, Justice.

On June 9, 1927, Lee Arthur Burns, ap-pellee, an ignorant negro, purchased from W. F. Skillman and appellant, H. C. Early, lots 1 and 2 in block No. 1726-4 of the Jenkins-Broughton subdivision of blocks 1731 and 1736, of Dallas, Texas, according to its map as recorded in volume 3, page 400, of the Records of Maps and Plats of Dallas county. The consideration was $1,800, payable $100 in cash and two vendor’s lien notes, note No. 1 for $1,000, constituting the first lien, payable in five years after date, with interest at eight per cent per annum, payable semiannually, and also secured by a deed of trust; note No. 2 was for $700, payable in monthly installments of $20. When purchased by appellee, lots 1 and 2 were vacant; about a month after making the purchase he erected improvements on the lots of the reasonable value of $2,300. On June 9, 1932, the maturity date of note No. 1, appellee, joined by his wife who is also an appellee, as a renewal and extension of the notes Nos. 1 and 2, executed their note in the sum of $1,340.75, secured by a deed of trust against the property. Appellees continued making payments to appellant after the execution of the renewal note. On December 1, 1936, through a sale by his trustee, under the terms of the deed of trust appellant undertook to foreclose his deed of trust lien against the property, but appellees were not dispossessed under this sale. On June 5, 1936, appellant filed his suit in trespass to try title in Dallas county against appellees to recover the title and possession of the property. On July 6, 1937, appellees, through their attorney, filed an answer to appellant’s trespass to try title suit, consisting of a general demurrer, general denial and pleas of not guilty. The case came on for trial December 8, 1937. Appel-lees knew nothing of the setting of the case, and were not present. Their attorney did not appear in the case, but left the court room before the jury was impaneled. He took no part in the trial; offered no defense on behalf of appellees. He left the court room while appellant’s attorney was picking’ a jury. Appellant’s áttorney testified as follows, in explanation of the conduct of appellees’ attorney:

“He left, I think, while the jury was being impaneled.
“Q. Did he tell you to go ahead and take judgment, either by note or word of mouth? A. He didn’t stay to take judgment, he wrote on a little note or a scrap of paper for me to go ahead and try the case, and he went shortly after that.”

On December 8, 1937, judgment was rendered in that case in favor of appellant against appellees on an instructed verdict. On June 9, 1938, appellees filed their bill of review against the judgment rendered against them in the trespass to try title case. That suit was later dismissed, but refiled on an agreement that the issue of diligence in filing ‘the second suit would relate back to the filing of the original bill.

The bill of review was tried on the following agreement:

“The Court: It is understood both sides have closed, unless the Court opens up this case again, which I am not likely to do under any circumstances.
“Mr. House: I don’t have anything in mind to offer further.
“The Court: Without agreeing that the case can be reopened, and without prejudicing anybody’s right to make application to re-open, we will say the case is closed, and it is going to be hard to get this Court to re-open the case.
“Mr. House: It is agreed between the parties, plaintiff and defendant, to submit this case to the Jury on one special issue as follows:
“ ‘Do you find from a preponderance of the evidence that the plaintiffs, Lee A. Burns and wife, at the time of the foreclosure of the deed of trust on the 1st day of December, A. D., 1936, were in default with the payment of the principal or interest' on the $1370.75 note dated June 9, A. D., 1932.
“ ‘Answer “Yes” or “No.” ’
“It is further agreed between the parties that in the event this issue is answered favorable to the defendant, that the Court will enter its judgment reciting it? findings on all issues against the plaintiffs raised by the evidence or pleadings or both, and that in the event the issue is found in favor of the plaintiffs, that the Court will likewise enter judgment setting out his findings against the defendant, on all issues raised by the pleadings and evidence.
“It is further agreed that the defendant shall present his motion for an instructed verdict, and that either party desiring to appeal from the verdict of the Jury and judgment of the Court shall have the right to appeal and defendant having the right to raise, should the Court overrule his motion for an instructed verdict, before the Appellate Court that question.
“It is further' agreed that either party appealing shall have the right to assign for the consideration of the Appellate Court in his motion for a new trial all assignments of error as they appear to him occurring during the progress of the trial, and it is specifically and clearly agreed that neither party losing this case shall raise any question as to the finding by the Court and the failure to submit other issues herein, it being agreed as above, that the Court’s findings of fact on its judgment shall be in all things in such manner as supports the findings of the Jury on the issues submitted. Of course, we will be governed by our exceptions as shown in the record.
“Mr. Burke: Counsel for defendant does not agree that the judgment rendered by this Court based upon the verdict of the Jury, but defendant agrees that if said issue should be answered favorable to the plaintiffs he agrees not to contest plaintiffs’ motion for any judgment based upon said verdict. It being the intention of the defendant that without the consent of defendant, the plaintiffs’ application for judgment in the form presented by him to the Court shall not be contested and that upon the entry of such judgment by the Court for the plaintiff, the defendant shall only be present and have the right to reserve his exception to the entry of a judgment.
“The Court: That is the agreement now.”

Only the question set out in the agreed statement was submitted to .the jury, and was answered in the negative, that is, that at the time of the foreclosure of the deed of trust on the 1st day of December, A. D. 1936, plaintiffs, Lee A. Burns and wife, were not in default with the payment of the principal or interest on the $1,340.-75 note dated June 9, 1932. The court entered the following judgment on the verdict of the jury — the agreement was also set out in the judgment:

“Thereafter, to-wit, on the. 27 day of July, 1939, Defendant filed a motion to strike the above agreement and -stipulation and the Court after having considered said rpotion and after hearing counsel thereon, is of the opinion that said agreement or stipulation reflected the true agreement of the parties touching the matters to which it relates, and that same was and is a valid and binding agreement and stipulation, upon which all parties to the suit acted and relied in the conduct of said cause and in the submission of same to the Jury, and the Court, accordingly did, on the 14 day of September, 1939, overrule and deny the motion of defendant to strike said stipulation, and has, and hereby does, adjudge and decree the same to be a valid, binding stipulation upon all parties to this cause.
“And it further appearing to the Court that Plaintiffs, before the entry of any judgment in this cause, requested that they be allowed to with-draw their suit insofar as same sought a recovery of money, damages or rentals, without prejudice.
“The court, therefore, under the authority of and in compliance with said stipulation or agreement, and the verdict of the jury, has, and does hereby, find all issues raised by the pleadings and evidence in favor of Plaintiffs and against Defendants, except the issue as to Plaintiffs’ damages, which has been withdrawn by Plaintiffs under the authority of the Court as aforesaid and by agreement of Defendant, without prejudice.
“It is therefore, ordered, adjudged and decreed by the Court that Plaintiffs, Lee Arthur Burns and wife, Ludie Burns, do have and recover of Defendant, H. C. Early, title and possession to the property described in Plaintiffs Petition, and that title to same be in all 'things divested out of H. C. Early and vested in Plaintiffs; that the Trustees Deed made, executed and delivered by the Trustee, Edward A. Bel-sterling, to Defendant, H. C. Early, dated on or about September 1st, 1936, be and the same is hereby cancelled and declared void and in all .things set aside and held for naught; that the Judgment in Cause Number 29828-A, styled Early vs. Burns in the District Court of Dallas County, Texas, be, and the same is hereby in all things set aside and made void in whole and in part; that the three notes in the principal sums of $1000.00, $700.00 and $1340.75 be, and each of them is hereby cancelled and declared fully paid, together with any and all liens securing same.
“It is further ordered, adjudged and decreed .by the Court that plaintiffs do have and recover of Defendant all costs in this behalf expended, for all of which let execution issue.”

Appellant duly prosecuted his appeal to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

The court did not err in refusing to strike the agreement upon which the case was tried. The evidence on the motion to strike was to the general effect— at least it raised the issue in support of the court’s ruling — that 'the agreement was deliberately made by counsel for both parties, and was given to the judge in open court in the presence and hearing of coun--sel for both parties, and that the agreement in fact was heard by appellant’s counsel as it was given to the court, and that appellant’s counsel made the addition to the agreement as indicated therein. The agreement was not ambiguous, and no confusion should arise as to its terms and general tenor. It was clearly stated in the agreement that, in support of the jury’s answer to the agreed question, the court should find all issues raised by the pleading and with support in the evidence. Further, appellant reserved the right to insist upon his motion for an instructed verdict, and to complain of the court’s ruling thereon if against him. The agreement was one the parties had the right to make, and it was the duty of the court to enforce it. 39 Tex.Jur. 285; White v. McFarlin, 77 Tex. 596, 14 S.W. 200; State Life Ins. Co. v. Duke, Tex.Civ.App., 69 S.W.2d 791. Under the right reserved to him in the agreement, appellant assigns error in the overruling of his motion for an instructed verdict on the following grounds: (a) The pleadings upon which the case was tried were legally insufficient because ap-pellees did not plead facts sufficient in law to vacate the judgment in trespass to try title; (b) on the face of the pleadings, and under the evidence, appellees were guilty of laches in filing their bill of review; (c) the evidence did not raise against appellant the issue of “fraud,”' “accident,” or “mistake,” in procuring the judgment in trespass to try title against appellees.

On the merits of the controversy between appellant and appellees, appellant insists that he was entitled to an instructed verdict because the evidence does not support the judgment of the court cancelling the note in the sum of $1,340.75,. dated on the 9th day of June, 1932.

First. On the assignment against the sufficiency of the bill of review to state a cause of action: In paragraph one, appel-lees plead their names, the name of appellant, and of appellant’s trustee, Edward W. Belsterling. In paragraph two, they plead that they purchased the property from Early and Skillman on the 9th day of June, 1927, giving its description. In paragraph three, they plead the consideration given by them for the property, as stated above. In paragraph four, they plead that Skill-man, by transfer dated February 7, 1929, transferred his interest in the vendor’s lien notes to appellant. In paragraphs five and six, they plead the execution of the renewal note in the sum of $1,340.75, and the deed of trust, as .stated above. In paragraph 7, they plead the filing of the trespass to try title suit against them by appellant on the 15th day of June, 1937; that they were duly served with citation therein; that they' employed an attorney to defend them in the suit; and that the defendant filed a formal answer consisting of general demurrer, general denial, and plea of not guilty. In paragraph eight, they plead that the trespass to try title suit came on for trial on December 8, 1937; that their attorney did not notify them of the setting, and that the case was tried to a jury; that their attorney abandoned their defense, instructing appellant’s counsel to “go ahead and take judgment.” That thereupon the case proceeded to trial, and, on an instructed verdict by the court, judgment was rendered against them in favor of appellants. In paragraph nine, they plead that the judgment against them “was not caused by any negligence on their part”; that they exercised all diligence to prevent the rendition of the judgment against them; that they had a good defense which they were prevented from making by the fraudulent acts of appellant, wholly unmixed with' any fault or negligence on their .part; that there is good cause to believe, and they do believe, that a different result would be obtained by a new trial. By paragraphs ten and eleven, they plead that prior to the institution of the trespass to try title suit, and prior to the foreclosure sale under the deed of trust, they had paid appellant in full the note for $1,340.75. That in addition to the specific payments on the note, appellees were entitled to a credit of $730 by virtue of an agreement between them and appellant, made during the month of November, 1927, and plead in detail the facts and circumstances upon which they predicated their claim for the $730. We quote from the bill:

“That at the time of execution of the $1340.75 note aforesaid and the deed of trust securing same, to-wit, June 9, 1932, plaintiffs were not indebted to defendant Early in any such amount, but that defendant Early demanded the execution of a note in such amount in renewal of the two prior notes above described, thereby rendering same usurious; that the execution of said note was procured through fraud on the part of the defendant Early, in that plaintiffs were ignorant negror, wholly inexperienced in real estate and commercial transactions, all of which was well known to defendant Early, who represented to them that he was accurately keeping record of plaintiff’s payments and that the commissions above described had been applied in payment of the last $730.00 due and to become due upon their indebtedness, thereby procuring plaintiffs’ execution of said $1,340.75 note.
“12. Plaintiffs say that at the time of the purchase of said property by plaintiffs defendant Early demanded of plaintiffs the sum of $100.00 in addition to the recited consideration for said purchase, as additional interest on the $700.00 second lien note for the first thirty (30) days, which plaintiffs then and there paid to defendant Early as additional interest and plaintiffs allege that said $100.00 so demanded, charged and collected tainted all three of the notes above described with usury.”

By paragraph thirteen, they plead that appellant had collected $3 per month rent from an apartment on the property from December 12, 1936, to the date of the bill of review which was filed on February 21, 1939. By paragraph 14, they plead that appellant evicted them from the property which was their homestead in August, 1938, and claimed $1,000 because of the eviction. We give paragraph 15 of the hill: “Plaintiffs say that defendant Early, after plaintiffs had been cited in the suit aforesaid and had promptly employed the attorney as aforesaid, he talked with said attorney and concealed from him the above matters of defense to said suit and on the contrary, denied same and that solely by reason of such fraudulent misrepresentations and concealments said attorney was induced to and did abandon the d/ense of plaintiffs cause without the knowledge of or consent of plaintiffs and without any notice to them, and that the judgment aforesaid, while its form and language fail to reflect same was in fact a default judgment entered without the interposition of plaintiffs’ defense or any part thereof that even after said judgment was entered, defendant Early fraudulently concealed the fact from plaintiffs until shortly before the time of their eviction and they were unaware of same until more than a year later, and after it was too late to file a motion for new trial in said cause and too late to procure a record therein, and too late to appeal same, whereby they were denied their day in Court.”

In paragraph 16, appellees denied that they were bound by the acts and entry of the judgment in the entry of the judgment in the trespass to try title suit, and plead that the conduct of their attorney resulted from the fraudulent misrepresentations and concealment of facts by appellant. By paragraph 17, they plead “good cause” to believe that in the event of another trial a different result would follow. By paragraph 18, they plead a cloud on their title, resulting from the deeds of trust, and prayed that they be cancelled. The general prayer was that appellant be cited, and that upon a trial appellees recover judgment against appellant for title and possession of the property, for cancellation of the deeds of trust, for the damages plead, and for costs of suit and general relief.

The bill plead a good cause of action. On the facts plead, appellees’ counsel did not have the right to withdraw from the case, instructing appellant to take judgment. On the facts plead, the acts and conduct of appellees’ counsel in withdrawing from the case were occasioned by the fraudulent representations made to him by appellant, and on these fraudulent representations appellees’ counsel was induced to abandon their cause of action. Having been employed to represent appellees and prosecute their defense, their counsel did not have authority to consent to a judgment against them. Pierce v. Foreign Mission Board of Southern Baptist Convention, Tex.Com.App., 235 S.W. 552. While.the judgment in issue was in no sense a compromise, yet the law is that counsel can not even enter into a compromise judgment without the consent of his client. Anderson v. Oldham, 82 Tex. 228, 18 S.W. 557; Adams’ Assignee v. Roller, 35 Tex. 711; Portis v. Ennis, 27 Tex. 574, 578; Wright v. Daily, 26 Tex. 730; Merritt v. Clow, 2 Tex. 582. On the allegations of the bill, the judgment against appellees resulted from appellant’s fraud, and this fact authorized the filing of the bill. Martin v. Robinson, 67 Tex. 368, 3 S.W. 550, 557. See, also, Youngberg v. El Paso Brick Co., Tex.Civ.App., 155 S.W. 715; Cetti v. Dunman, 26 Tex.Civ.App. 433, 64 S.W. 787. Hickey v. Stringer, 3 Tex.Civ.App. 45, 21 S.W. 716.

Second. On the issue of laches in filing the bill of review. Appellees were ignorant negroes, as stated above. We take the following statement from appel-lees’ brief:

“The record shows the trespass to try title suit was filed June 15, A. D. 1937, and that Appellee employed an attorney to defend the suit, and that the attorney filed an answer timely and seasonably; that the cause came on for trial December 8, A. D. 1937, and judgment was taken without the interposition of any defense whatsoever on behalf of Appellee; that the attorney employed to defend the suit abandoned the defense of the same, without any notice to appellees. * * *
“The record further shows that following the entry of the judgment in the trespass to try title suit, these ignorant Negroes set about to employ a lawyer. Ap-pellee Burns testified that it was several weeks before he got one.
“Appellee further testified that since he discovered the judgment and the foreclosure under the deed of trust sale, he has continuously tried, to the best of his ability, to get his property back.
“He testified that he got lawyers to clear his property up promptly. He testified in this connection as follows:
“Q. How long did you know of this suit prior to the filing of the suit — the first suit you filed through Lewis and Reagan, how long before that was it you had this conversation with Early that you testified about when he told you he had a judgment? A. Several weeks, as near as I can remember, I couldn’t find anybody, I was trying to find somebody to take it up and I had to go to free advisers at the City Hall and ask them to help, me and they sent me to Mr.- Lewis and it took some time.”

He further testified:

“Q. When did you know you had been foreclosed? A. I called him and asked why he stopped getting his'money, he didn’t stop as usual, and he said that he foreclosed.
“Q. That is the first that you knew of it? A. Yes, sir.
“Q. How long after that was it you knew about the foreclosure before he told you that. A. He told me this over the telephone, I asked why he didn’t stop and get his money as usual.
“Q. He didn’t come for his money? A. That’s right.
“Q. Did he tell you he was going to foreclose? A. No, sir.
“Q. Did you get notice of foreclosure sale or of what took place? A. No, sir, I called him and asked why he didn’t stop Sunday as usual to get the money.
“Q. You are sure you didn’t get a notice of foreclosure? A. Yes, sir.
“The testimony of Appellee further shows some confusion in his mind, under questioning, concerning the trustee’s sale and the foreclosure judgment entered in the trespass to try title suit.
“We wish to call the court’s attention to the fact that these Negroes, according to their testimony, promptly upon learning of the’judgment, set about to find such legal help as they could get in an effort to save their property. That pursuant thereto, they being practically penniless at the time, as reflected by the record, even went to the City Hall in the City of Dallas and besought aid and advice from the free legal aid bureau; that several weeks after learning of the judgment they did procure counsel, and that on June 9, 1938, these attorneys filed a bill of review to set aside the judgment.
“We wish to call the court’s attention to the fact that all these steps were taken by these negroes and all these efforts were expended by them and their bill of review suit was actually filed before they had even been dispossessed.”

The evidence raised the issue in ap-pellees’ favor of due diligence in filing and prosecuting their bill of review, which issue, under the agreement, was withdrawn from the jury and found by the court in appellees’ favor. The authorities cited above in support of the sufficiency of the bill of review also support the sufficiency of the evidence to support the court’s judgment on the bill of review.

Third. The sufficiency of the evidence to support the court’s judgment cancelling the note. Appellee Burns testified that after making the initial payment of $100 in July, 1927, at the time of the delivery of the deed of trust that he paid appellant an additional $100; this $100 was paid for “extra interest” for the first 30 days of the note. The agreement with appellant was that when appellee paid the $100 extra interest for the first 30 days, appellant would start the note off at eight per cent. This payment made the contract usurious, and the law charged all payments thereafter made against the principal. Authorities are not necessary on this point. The evidence raised the issue that appellees paid appellant on the note more than $1,440, which, on the law of usury, was chargeable against the principal. On the testimony of appellees, appellant was due them $730 for commissions in making real estate sales for him, which he contracted and agreed with them to credit on the note for $1,000 of a date prior to the execution of the renewal note in 1932. In executing the note for $1,340.75, appellees testified that appellant agreed with them that they were entitled to a credit of $730 on the note for these commissions. We quote appellee’s testimony on this point:

“A. Mr. Early told me my credit would go on that note.
“Q. What credit? A. The credit of the real estate I sold.
“Q., How much ? A. 700 and some-odd dollars, 720 or $730.00, but he said he would have to keep his record straight, that I didn’t owe $1,300.00, but he would have to draw it up that way to keep his record straight; that I didn’t owe but a couple of hundred dollars at the time, and that by the time he. credited my work I had done in selling the houses on the notes I didn’t actually owe but a couple of hundred dollars, but to keep his records straight he would have to draw the note up and that’.s why I signed it.
“Q. Did you rely on and believe Mr. Early’s statement that he would credit that note with this $730.00 and interest? A. Yes, sir.
“Q. Was that wKat induced you to sign it?
“Q. Were you induced in signing it by your reliance upon what Mr. Early told you? A. I believed that he would keep the books right, he said he would, and he was keeping them right.
'“Q. If he had disclosed to you that he intended to hold you for $1,340.75, would (you) have signed that note ? A. No, sir.”

All fact issues necessary to support the judgment of the court, in addition to the jury’s verdict, were raised by the pleadings and the evidence, and, on the agreement, the court was authorized to make these findings as in fact they were made.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly, so ordered.

Affirmed.