author: FOLLEY, Justice.

text:
    REISER v. JENNINGS.
    No. 5180.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1940.
    Rehearing Denied Sept. 9, 1940.
    W. H. Russell, of Hereford, for appellant.

      Aldridge & Aldridge, of Farwell, for ap-pellee.
   FOLLEY, Justice.

This suit was filed by the appellee, C. C. Jennings, against the appellant, E. J. Reiser, to recover damages for the alleged breach of a contract made by Charley Lunsford, purportedly as the agent of the appellant. This contract was for the conveyance of 320 acres of land in-Parmer County, Texas, from the appellant through his purported agent to the appellee. In a trial before a jury judgment was rendered for the ap-pellee in the sum of $1,645.79.

The appellant attacks the judgment upon various grounds, the principal of which are: (1) That the court should have sustained his general demurrer to appellee’s petition; (2) that the court should have given a peremptory instruction in his favor; and (3) that the court should have permitted him to file a trial amendment denying the agency of Lunsford.

On April 11, 1939, Reiser was the owner of the 320 acres of land in Parmer County against which there was an indebtedness of about $4,000 secured by d lien. On this date Reiser listed the land for sale with Lunsford, who carried on a real estate business at Friona, Texas, under the name of “Real Estate & Livestock Exchange”. The written instrument under which the listing was made was as follows:

“Real Estate & Livestock Exchange
“Chas. Lunsford, Prop.
“Friona, Texas. 4/11 — 1939.
“I hereby list the following property for sale or trade with Real Estate & Livestock Exchange of Friona, Texas, 320 acres, Sec. No. East 1/2 of Sec. 13, located 18 miles in N W. direction from the town of Friona, Tex, in Parmer Co., County. Above listed property is improved as follows: 320 acres cultivated-acres in grass. Well and windmill, mill, no water mill, water-, house -, rooms -, barn -, sheds and out buildings-, price $18.50 per acre-, cash balance-. I will pay 5% commission on sale or 2½% commission on exchange of property on delivery of title unless otherwise agreed. Not on loan. Remarks: This place has 224 acres of wheat, all goes with it at this price up till June 1, 1939. I am also listing this land for oil and gas lease. I want $400.00 Dollars for the 320 acres oil lease, with 50cts. rental per acre lease. I am not to pay any commission on oil lease.
“Signed E. J. Reiser
“Witnesses
“M. L. Phippin
“Chas. Lunsford”

On May 27, 1939, Lunsford, purporting to act as agent for Reiser, entered into a written contract with the appellee Jennings whereby the appellant through his purported agent agreed to sell, and the appellee to purchase, the 320 acres of land at the price of $18.50 per acre, the appellee agreeing to assume the indebtedness against the land and to pay the balance in cash upon the delivery of the deed conveying the land to him. This contract further provided that Reiser would furnish an abstract of title which Jennings would have ten days to examine and report objections, and in the event title should not be merchantable Reiser would have six months in which to cure the objections. It was also stipulated that Jennings would receive the wheat crop growing on the land; that he would be entitled to immediate possession thereof; that in the event the transaction had not been completed at the time the wheat was harvested the net proceeds of the sale of such wheat should be placed in escrow in the Security State Bank of Farwell, Texas, pending the completion of the transaction; and that when finally completed Jennings should be entitled to the wheat or the proceeds thereof. It was further stipulated that Jennings had placed $500 in escrow in the bank to be applied as part of the purchase price of the land when the transaction was completed and to be delivered to Reiser as liquidated damages in the event the sale was not completed due to the default of Jennings. This instrument was signed by Jennings and by Luns-ford, the latter purportedly as the agent of Reiser.

The appellee alleged that the appellant did in writing, and verbally, make, constitute and designate the said Charley Lunsford as his agent to sell the land at an agreed and stipulated sum of $18.50 per acre; that said written contract and designation as above set out, which was copied in appellee’s pleadings, was made with Charley Luns-ford in the name of “Real Estate & Livestock Exchange” which was an assumed or firm name of Charley Lunsford; that concurrently with the execution and delivery of said instrument in writing Reiser did verbally authorize Lunsford to sell said land, to enter into contracts to sell it in behalf of Reiser as his agent at the sum of $18.50 per acre; that it was understood that the purchaser would assume the indebtedness against the. land and pay the balance in cash upon delivery of • the deed; that Lunsford was authorized to sell said land as agent for Reiser upon the terms aforesaid and was impliedly authorized to enter, into contracts therefor and to do each and everything necessary to carry out the purpose of said agency in perfecting' the sale; that Luns-ford was authorized to sell the land at any time prior to June 1, 1939; that in pursuance to said contract and authorization Lunsford did on or about May 27, 1939, enter into a contract in writing with Jennings wherein Reiser, acting through Such agent, did agree to sell and convey to Jennings the land at $18.50 per acre; and that said agent was authorized to make such sale and impliedly authorized to enter into such contract.

The appellant filed only a general demurrer and a general denial. The agency asserted by the appellee was not denied under oath. In this connection, however, the appellant asserts that under the appellee’s pleading and under the evidence no sworn denial was necessary to defeat the recovery of the appellee.

We think the agency pleaded by the appellee, a resume of which is above set out, is susceptible of two distinct interpretations, one being that the agent Luns-ford was expressly authorized by the appellant to execute the contract for the sale of the land, and the other that by virtue of the agent’s authority to “sell” the land it impliedly followed that he was also authorized to enter into a contract therefor on behalf of his principal.

Under the construction placed upon section 8 of article 2010, R.C.S. of 1925, with reference to sworn denials of instruments executed by a party or by his authority upon which a suit is predicated, in the absence of a sworn denial the authority of the agent need not be proved and is not an issuable fact when the same is expressly asserted in the pleadings of the party relying thereon. Hunt et al. v. Siemers, 22 Tex.Civ.App. 94, 53 S.W. 387, writ denied; National Guaranty Fire Ins. Co. v. King, Tex.Civ.App., 24 S.W.2d 501, writ refused. In the instant case, however, the authority of the agent to' execute the sale contract is not expressly, at least not clearly, asserted by the appellee, but on the contrary, the pleading is strongly susceptible of the construction that such power is necessarily implied under the general allegation of the power to “sell”.

In 12 C.J.S., Brokers, 63, § 20, on the significance of the authority given an agent to “sell” real estate, we find this general rule: “Some courts have taken the view that where a broker is employed ‘to sell’ property power is given to make a binding contract of sale. Most courts, however, sustain the view that the use of the words ‘for sale,’ ‘to sell,’ and the like, in a broker’s contract of employment, amount to nothing more than an employment to find a purchaser and to present him to the owner or to conduct negotiations with him, and does not of itself give the broker any authority to make a binding contract of sale on behalf of the owner.”

The great weight of the authority seems inclined to the view expressed in the above quotation to the effect that the power to “sell” does not authorize an agent to enter into a binding contract of sale but amounts to no more than employment to find a purchaser. This rule seems to have been adopted by the courts of this jurisdiction. Donnan v. Adams, 30 Tex.Civ.App. 615, 71 S.W. 580, writ denied, and authorities therein cited and discussed; Collins et al. v. Durward et al., 4 Tex.Civ.App. 339, 23 S.W. 561; Hennessee et al. v. Johnson et al., 13 Tex.Civ.App. 530; 36 S.W. 774; Berry v. Harnage et al., 39 Tex. 638; La Beaume et al. v. Smith, Albin & Peay, Tex.Civ.App., 247 S.W. 623; J. B. Watkins Land Mortgage Company v. Campbell et al., 100 Tex. 542, 101 S.W. 1078.

In Eisenhower v. Brown, 4 S.W.2d 627, 628, in discussing the above rule, Justice Smith of the San Antonio Court of Civil Appeals said: “The general rule more generally accepted seems to be that unless the power thereto is clearly given by the terms of his contract of employment, a broker has no authority to enter into a contract of sale of land binding upon his principal; that ‘the ordinary authority of a real estate broker employed to sell real estate is merely to 'find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by, or acceptable to, the principal, and in the absence of such special authorization he has no authority to enter into a contract of sale, or to sell and convey, binding upon the owner.’ 9- C.J. 526, § 28. Mr. Mechem, in his work on Agency, states the general rule to be, that ‘authority to sell real estate must ordinarily be conferred in clear and direct language; for, although there are cases in which it may arise by implication, it is not lightly to be inferred from express power to do other acts, or brought within the operation of more general terms.’ Mechem Agcy. §§ 802, 797, 798.”

Since the pleading of the appellee is susceptible to the two constructions above noted, in disposing of the case upon the merits, we think it is necessary to look to the testimony on the issue in order to determine the real meaning of the allegations. From the testimony of the agent Lunsford, which incidentally is the only evidence introduced on the issue, we find that Reiser told Lunsford to “go ahead and sell” the land; that Reiser told him how much he wanted for the land and how the purchase price was to be paid; that Reiser told Lunsford to sell it on those terms; that he would pay Lunsford commission on his equity in the land but not on the indebtedness against it; that Luns-ford wrote down on the listing instrument just what Reiser told him; and that such listing contract was Lunsford’s only authority to sell the land. This testimony falls far short of showing either an express or an implied authority to enter into a written contract to sell the land. Under the above authorities it amounts to no more than the employment of an agent to find a purchaser ready, willing and able to enter into a contract on the terms specified by the appellant. We therefore think the pleadings of the appellee, when construed in the light of the testimony, simply assert an authority in the agent to find a purchaser. The pleading being susceptible of the interpretations placed upon it by the appellee was not, we think, subject to a general demurrer, but upon the introduction of the testimony which clarified the meaning of the allegations and restricted the authority of the agent to that only of finding a purchaser, it is our opinion that it was error to render.a judgment in favor of the ap-pellee based upon such pleading and the evidence.

Under the peculiar facts and circumstances of this case we are of the further opinion that upon the refusal of the court to direct a verdict for the appellant at the conclusion of the appellee’s testimony the court erred in refusing'to permit the appellant to file a trial amendment denying under oath the agency of Luns-ford. In making this holding we are not unmindful of the rigid rule that the allowance of a trial amendment lies wholly within the sound discretion of the trial court and that his action in such matter is subject to review only upon a clear showing of abuse of such discretion. 33 Tex. Jur. 521, para. 89. We think it was not unreasonable for the' appellant to have interpreted the pleading of the appellee in such manner that a sworn denial of the agency wás unnecessary, and particularly is this true if he knew beforehand, and we presume he did, what the testimony of the agent would be upon the issue' of his authority. There certainly was nothing in the written listing contract by which a reasonable presumption might arise that the agent was empowered to enter, into a sales contract with anyone, nor does any such implication arise from the testimony or from any past conduct or .relationship between the parties. At the time the request was made to file the trial amendment there was insufficient evidence before the court to establish the authority of the agent to execute the contract, and but for the rule that the absence of a sworn denial forecloses the issue in favor of the agency, the appellant would have been entitled to a peremptory instruction. In refusing the appellant the right to file such amendment the court accepted the construction of appellee’s pleading most favorable to the appellee when he could, with a great deal more logic and in keeping with the uncontroverted testimony, have adopted the interpretation of the pleadings which would have excluded the authority of the agent to contract for the sale of the land. By the proffered trial amendment the appellant was not injecting any new matter into the law suit nor could it have been a surprise to the appellee or otherwise have prejudiced his rights. On the contrary the appellant was merely attempting to escape the binding effect of the court’s interpretation of the pleadings which he had failed to anticipate for lack of no diligence upon his part. By refusing to allow the filing of the amendment the court .was, in effect, promoting a recovery upon testimony wholly insufficient as a basis therefor and, under the record as it then stood, permitted a miscarriage of justice.

In Sorenson v. City Nat. Bank, Tex.Civ.App., 273 S.W. 638, 639, where there was a refusal of permission to file an amendment before announcement of ready, it is stated: “The allowance of amendments to pleading' is within the discretion of the court, but that discretion should never be exercised in such manner as to defeat justice, and we think the court was in error in denying appellee leave to amend its answer before it had announced ready. Boren v. Billington, 82 Tex. 137, 18 S.W. 101; Shelton v. Berry, 19 Tex. 154, 70 Am.Dec. 326.”

In Williams v. Creighton et al., Tex.Civ.App., 93 S.W.2d 195, 196, in discussing the refusal of the trial court to permit the filing of an amendment after announcement of ready under circumstances similar to those of the instant case, it is said: “If we err in the view the variance was not fatal, then we are of the further opinion it was error to refuse the plaintiff leave to file the requested trial amendment. The allowance of such amendments rests in the sound discretion of the co'urt, but it should not be refused when such refusal results in a miscarriage of justice and the granting of same could not operate to surprise or otherwise prejudice the opposing side.”

In the early case of Whitehead et al. v. Foley et al., 28 Tex. 1, 10, in discussing the propriety of allowing trial amendments after announcements of ready and during the trial of a case, the Supreme Court of this State said: “It is insisted, however, that the disclaimer was presented as an amendment, and the court was forbidden by the statute from permitting this to be done after'the parties had announced themselves ready for trial. The language of the statute (O. & W. Dig., art. 434), if technically construed, may admit of this construction. But it certainly never has been supposed that the district courts cannot permit parties, if necessary to accomplish the ends of'justice, to withdraw an announcement at any time before a case is submitted ten the jury. And if this be done, it is undeniable that the^ pleadings may then be amended; so also, after a verdict, a new trial may be granted for the mere purpose of permitting an amendment. Was it the purpose of the legislature to forbid the court doing directly what'may thus be circuitously accomplished? It can hardly be thought that this is the true meaning or interpretation of the statute. It is more reasonable to conclude, that the object of the law was to prescribe a general rule, under which parties should have the absolute right of amendment before they announce themselves ready for trial and not thereafter, but not to take from the court the power of making any order during the progress of the trial, which might be found necessary for more certainly and speedily attaining the justice of the-case.”

The rule announced in the White v. Foley, case was reaffirmed by the same court in Parker v. Spencer, 61 Tex. 155, 164, in the following language: “In Whitehead v. Foley, 28 Tex. [1] 10, it was held that a general rule is prescribed by that statute, to the effect that, after announcement, the parties are not entitled, as a matter of jight, to amend their pleadings, but that it is in the power of the court to allow such amendments after that time as might become necessary to attain the ends of justice.”

In a still later case, Radam v. Capital Microbe Destroyer Co. et al., 81 Tex. 122, 16 S.W. 990, 991, 26 Am.St.Rep. 783, the Supreme Court further said: “The Revised Statutes provide that pleadings may be amended under leave of the court before the parties announce ready for trial, ‘and not thereafter.’ Rev.St. art. 1192. Yet it has been held that after such announcement the court may allow amendments that may seem necessary to the ends of justice.”

Under these and other authorities on the subject, we think the trial court abused his discretion in refusing appellant permission to file a sworn denial of the power of the agent to enter into a written contract of sale. Jackson et al. v. Blair, Tex.Civ. App., 165 S.W. 522, writ refused; 33 Tex. Jur. 523, para. 91-92.

The appellant asserts that judgment should be rendered herein for him because of the allegation of appellee that by the terms of the agency confract Luns-ford was authorized to sell the land at any time prior to June 1, 1939. The appellant contends that this allegation precludes a sale to be completed after such date and that this allegation, coupled with the fact that the sale was not completed before June 1, 1939, but that only a contract was executed therefor, destroys any right of recovery upon the part of the appellee. We think a sufficient answer to this contention is that the most reasonable construction of this allegation is that the agent had until June 1, 1939 to find a purchaser, which he did within such period. We think the case of Shirley v. Coffin et al., 103 Tex. 537, 131 S.W. 404, relied upon by the appellant in this connection, is clearly distinguishable from the instant case in that in the former case the employment contemplated the making of a completed sale and not the mere finding of a purchaser within the time limit. Such is not true in the case before us. In Blade’s Law Dictionary, Third Edition, page 1577, in defining the word “Sale” as applied to the relation between a real estate broker and a landowner, it is said: “ ‘Sale’, as applied to relation between landowner and real estate broker working to secure purchaser of land, means procuring purchaser able, ready and willing to buy on terms fixed by seller. Resky v. Meyer, 98 N.J.L. 168, 119 A. 97, 98; Walker v. Russell, 240 Mass. 386, 134 N.E. 388, 390; T. W. Sandford & Co. v. Waring, 201 Ky. 169, 256 S.W. 9, 10; Humphries v. Smith, 5 Ga.App. 340 (1), 63 S.E. 248.”

The appellant further asserts that we should render judgment for him because the $500 deposit made by the appel-lee as above stated, with the stipulation that it should be delivered to the appellant as liquidated damages in the event of the default of the appellee, results in a mere option contract and is not a sale. In such stipulation there was no agreement that the appellant should accept such sum in full satisfaction of the breach of the contract nor does such stipulation preclude a suit for specific performance upon the part of the purchaser. Moreover, if, as indicated in the stipulation, it was the intention of the parties that the money should be placed in escrow, not for the purpose of allowing the purchaser the election of paying the money or performing the contract, but merely to secure the performance of the obligation, specific performance would not be denied the vendor. Redwine v. Hudman, 104 Tex. 21, 133 S.W. 426; Texlouana Producing & Refining Co. v. Wall, Tex. Com. App., 257 S.W. 875. Under these circumstances we think the contract, if binding at all, was more than a mere option contract. Moss & Raley v. Wren, 102 Tex. 567, 120 S.W. 847; Id., 102 Tex. 567, 113 S.W. 739; Id., Tex.Civ.App., 118 S.W. 149; Simpson v. Eardley, Tex.Civ.App., 137 S.W. 378, writ denied; Henderson & Grant v. Gilbert, Tex.Civ.App., 171 S.W. 304; La Beaume et al. v. Smith, Albin & Peay, supra; Bourland et al. v. Huffhines, Tex.Civ.App., 244 S.W. 847, and authorities cited. Furthermore, since the case was not fully developed either by the pleadings, or by the evidence, we -think justice will best be subserved to remand the case for a new trial.

For the errors pointed out the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte BARCIA.
    No. 7764.
    Supreme Court of Texas.
    Sept. 25, 1940.
    Kahn & Branch, of Houston, for Andrew Barcia.
    J. A. Copeland, of Houston, for Angelina Barcia.
   PER CURIAM.

This is an original habeas • corpus proceeding instituted in this court by Andrew Barcia to secure his release from alleged illegal restraint of his liberty. It is admitted that the petition or motion for contempt was sworn to by the complainant before her attorney, such attorney acting as a notary public. It is further admitted by all parties that all proceedings in the district court by which relator was adjudged in contempt were and are void under authority of Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 314. It is therefore ordered that Andrew Barcia, relator herein, be discharged from custody.


author: GERMAN, Commissioner.

text:
    SOUTHWEST BITULITHIC CO. v. MARTINEZ et al.
    No. 2332-7500.
    Commission of Appeals of Texas, Section A.
    Sept. 25, 1940.

      West & Hightower, of Brownsville, and Moursund, Ball, Moursund & Bergstrom, of San Antonio, for plaintiff in error.
    H. L. Faulk, of Brownsville, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of Cameron County by Southwest Bitulithic Company as plaintiff, and it will be so designated here. It was against Genaro Martinez and his wife Joaquina Martinez, who will be designated as defendants. The suit was to recover balance ■due on certain paving certificates issued by the City of Brownsville, and to foreclose two mechanics’ liens alleged to have been •executed by defendants November 2, 1927, and November 21, 1927, upon lots 7 and 8 in block 106 in the City of Brownsville.

The case was tried before the court without a jury. Judgment was rendered against Genaro Martinez personally for ■$728.40, and judgment for foreclosure was rendered against Genaro Martinez and his wife. Judgment upon the debt included $100 attorney’s fees, but as to this no personal judgment was rendered against Joaquina Martinez, and no foreclosure was .allowed.

The Court of Civil Appeals affirmed the judgment as to Genaro Martinez, but reversed and rendered judgment in favor of Joaquina Martinez as to the lien upon said lots, which were homestead property at the time of the execution of the alleged lien. 119 S.W.2d 740.

As we view the case, there is but one dominant question to be decided. Defendants filed no formal plea of forgery, but their answer was verified by the affidavit of Joaquina Martinez, and among other things contained the following: “This defendant, Joaquina Martinez de Bejaraño, now says that she is the wife of Genaro Martinez; that they have been lawfully married for many years, and at all times since their marriage have lived together as husband and wife, and for many years have lived together upon, used and occupied said premises as their homestead, and she now specifically denies that she ever at any time executed any contract or gave or consented to the giving, granting or creating of any lien' upon said premises, and especially denies that she at any time executed any such contract giving, granting or creating any lien upon said premises as is alleged by plaintiff to be recorded in Vol. 17, page 157-59 and 513-14 of the Mechanic’s Lien Records of Cameron County, Texas, and here now charges that if any such lien or contract appears to have been signed and acknowledged by her, that the same was done through'fraud, accident or mistake on the part of the plaintiff, and without her knowledge, or that the same are forgeries.”

The original mechanics’ lien contracts were offered in evidence, and were objected to by the defendants on the ground that no sufficient proof of the execution of same by Joaquina Martinez had been made. These contracts were admitted in evidence over such objections. It was within the power of the trial court to first hear proof as to the execution of these instruments, and if convinced that there was sufficient evidence, to prima facie establish their execution, to admit them in evidence. The question of forgery then became an issue of fact, to be determined by the court, and upon this issue the court has found in favor of plaintiff and against defendants. So the question of forgery has passed out of the case, if the court was not in error in allowing the instruments to be offered in evidence in the first instance. In our opinion there was ample evidence to sustain a conclusion' on the part of the trial court that Joaquina Martinez executed these instruments.

Neither Genaro Martinez nor his wife could sign their names, and the instruments are executed by their marks. Antonio Martinez, a daughter of defendants, witnessed both instruments. It seems to be undoubted that she signed the name of both Genaro Martinez and his wife to the instrument of November 2, 1927, and signed the name of Joaquina Martinez to the instrument of November 21, 1927. Apparently the notary public signed the name of Genaro to this last mentioned instrument. On both instruments there appeared a cross mark supporting each substituted signature. The instrument of November 2, 1927, was also signed by Roy B. Mims as a witness. It was proven that Mims was dead at the time of the trial and that his signature to such instrument was genuine.

Assuming that the verified answer as set out above was sufficient to constitute an affidavit of forgery (which is éx-tremely doubtful), so as to place the burden of proof upon plaintiff to show prima facie execution of these instruments, it is important to know just how that might have been done. It was not necessary to show that Antonio Martinez was authorized to sign the name of Joaquina Martinez to these instruments, as the Court of Civil Appeals has held. If that were necessary, probably such authority would have to be in writing. Nor was it possible to prove the handwriting of Joaquina Martinez, as she could not write. In such a case it was manifestly sufficient if it could be shown by facts and circumstances that Joaquina Martinez gave her assent to the contracts by declaring in the presence of the notary that the same were her act and deed, for the purposes and considerations therein expressed, or by showing that she manifested her assent to same, or adopted same, by making her mark or touching the pen. Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.

There are two reasons at least why the action of the trial court in admitting these contracts in evidence may be upheld. In the first place, the signature of Roy B. Mims, deceased, witness to the instrument of November 2, 1927, was proven to be genuine. The signature of Antonio Martinez, a witness to both instruments, was admitted to be genuine. At common law, one of the favorite methods of proving the execution of a written instrument was to prove the signature-of the attesting witness, if he were dead or unavailable. In W-igmore on Evidence, 2nd Ed., sec. 1320, in speaking of the effect of proving the signature of a subscribing witness, it is said: “What is it to prove his signature? It is in effect to offer in evidence the hearsay statement of the attester. The signing of a document in attestation by a witness, whether or not an express clause of attestation accompanies the signature, involves a statement byi the at-tester that the person purporting to be the maker did then execute the document. This extra judicial statement, expressed or implied, is always, when the attester is unavailable, admissible by exception to the Hearsay rule.”

It is also a salutary rule, we think, that if the signature of a subscribing witness be shown to be genuine, the legal effect of the presence of such signature upon the document is not destroyed by the testimony of such witness that the maker in fact did not execute the instrument. There still remains a question of fact as to whether or not there was in reality an execution of tbe document. Matheson v. Caribo, 117 S.C. 291, 109 S.E. 102, 17 A.L.R. 1263, and authorities cited. To hold otherwise would often place a party at the mercy of a subscribing witness, who by reason of relationship, defect of memory, or some other cause, denied the fact which the presence of his signature tended to establish.

In the next place, there are . facts and circumstances sufficient to establish the conclusion that Joaquina Martinez actually appeared before the notary .public as disclosed in his certificate. This being true, his certificate of acknowledgment was either conclusive, or at least was sufficient to raise .an issue of fact as to .the execution of the instrument. The statement of Joaquina Martinez that she did not execute these papers was not sufficient to destroy the probative force of the acknowledgments. Stewart v. Miller, Tex.Civ.App., 271 S.W. 311, Writ Refused; Texas Co. v. Keeter, Tex.Civ.App., 219 S.W. 521; Cockerell v. Griffith, Tex.Civ.App., 255 S.W. 490; Emmons v. Jones, Tex.Civ.App., 246 S.W. 1052.

In this connection we call attention to the fact that both instruments bore a joint acknowledgment signed by E. L. Kowalski, which acknowledgments were in due statutory form, and were accompanied by the official seal of the notary. It was admitted that the signature of Kowalski to these acknowledgments was genuine and that he was dead. It was further shown that he was a lawyer and a man of good reputation. There was also proof that he had taken something like 200 acknowledgments to similar contracts, a number of which had been involved in suits, and this was the first time any such instrument was claimed to be a forgery. In addition, Genaro Martinez admitted that he made his mark on the instruments, and his acknowledgment, which appeared to be joined with that of his wife, was not questioned. In fact, the acknowledgment of Joaquina Martinez' to these instruments was not attacked by specific allegations, and no allegation of any fraud or imposition on the part of the notary. The instruments had been recorded nearly ten years when suit was filed, and payments had been made on the certificates for a number of years. Joaquina Martinez, after testifying that the notary was at her house at a time when she was milking a cow, was asked this question: “Was that the only time he was by your house?” To which she replied: “And the time my daughter signed when he went there so as to have my name and my husband’s name on the paper.”

We therefore are of the opinion that there was ample evidence to justify the trial court in admitting the instruments in evidence, and there was no abuse of discretion in doing so.

We reach this conclusion without taking into consideration the effect of Article 3723 of the Revised Statutes of 1925, which article has been ably discussed in the case of Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795.

Defendants filed in this case a supersedeas bond. The Court of Civil Appeals, having reversed the trial court as to the foreclosure of lien, held that defendants had prosecuted their appeal with effect to such extent that they and their ■sureties were not liable on the supersedeas bond. As we have reached the conclusion that the judgment of the Court of Civil Appeals in the respect mentioned is erroneous, and the judgment of the trial court should be affirmed, the supersedeas bond remains in full force and effect.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is in all things affirmed.

Opinion adopted by the Supreme Court.


author: SMITH, Chief Justice.

text:
    SLOAN v. RICHEY.
    No. 10924.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 15, 1940.
    Rehearing Denied Sept. 18, 1940.

      O. Shelley Evans and Walter C. Wolff,, both of San Antonio, for appellant.
    Arnold ■& Cozby and Clarence R. Boat-wright, all of San Antonio, for appellee.
   SMITH, Chief Justice.

This cause was tried under the so-called Civil Practice Act regulating practice and procedure in the district courts of counties-embracing the larger cities of the state. Art. 2092, Vernon’s Civil Statutes. This-appeal turns upon the consideration of the provisions of that article for perfecting' appeals, as follows: “31. Appeal Bonds. Filed, When. In appeals from such civil Districts Courts the appeal bond shall be filed within thirty (30) days after the judgment or ordfer appealed from is rendered, * * Acts 1939, 46th Leg. p. 205, section 1. .

The cause was tried to the court without the intervention of a jury, and judgment was rendered against appellant on April 9, 1940. No motion for new trial was filed in the case.

The judgment contained recitals that “On the 26th day of March, 1940, came on to be heard the above styled and numbered cause, in its regular order upon the docket” ; that after hearing the case “the court accordingly finds judgment as herein set forth, on this the 9th day of April, 1940.-It is therefore ordered, adjudged and decreed by the court on this the 9th day of April, 1940, that the plaintiff take nothing”' etc., “to all of which plaintiff Hugh G-Sloan, táen and there” excepted and gave notice of appeal. The judgment bears the endorsement “Recorded on this the 17th day of April, A. D. 1940 in Vol. 42, pp. 625-6.”

Summarized, the record shows that the trial was begun on March 26, and that judgment was arrived at and rendered, and notice of appeal was given, on April 9, but was not recorded or entered in the minutes of the court until April 17.

Appellant did not file his appeal bond (executed on April, 30) until May 15, which was more than thirty days after judgment was rendered, but within thirty days after judgment was entered in the minutes.

Appellee has presented his motion t.o dismiss the appeal on the ground that appellant’s appeal bond, although filed within' thirty days from’entry of the judgment, was not filed within the time prescribed by the statute, to-wit: “within thirty days after the judgment or order appealed from is rendered.” Thus the sole question of law is squarely presented for decision. Under a policy of the law uniformly observed by this court, the statute will be construed and the facts applied most liberally in favor of the right of appeal.

The rendition of a judgment and its entry in the minutes of the court rendering it constitute two separate and distinct acts and steps in the determination of the rights and remedies of the parties. In the language of Justice Phillips in Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041:

“Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded.
“The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding its imperfect record.”

The distinction between rendition of judgment and entry of judgment is thus elaborated upon in 15 R.C.L. p. 571, § 85: “Although it has been said on high authority that a judgment is a solemn record, the entry or record of the judgment should not be confused with the judgment itself. The judgment is a judicial act of the court; the entry is the ministerial act of the clerk. The judgment is as final and complete when pronounced by the Court as when it is entered and recorded by the clerk. Although such entry may be necessary to give full force to the judgment as affecting the rights of third parties, the entry or recording of a judgment is not essential as between the parties themselves. A judgment therefore is considered as having been rendered when the court has pronounced a decree which finally determines the rights of the parties and nothing remains 'to be done but for the clerk to record the entry of the judgment. The judgment itself is not what may be entered, but is that which is considered and delivered by the Court. Even if the judgment may be proven only by the record, yet it derives its force, not from its entry on the record, but from its rendition by the court.”

It has been definitely decided that the right to file an appeal bond accrues with the rendition, without regard to the act of entry, of judgment — that an appeal bond filed before entry, but after rendition, is timely and not prematurely filed. Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717; Id., Tex.Civ.App., 113 S.W.2d 578; Sigler v. Realty Bond & Mortgage Co., Tex.Com.App., 138 S.W.2d 537; Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445; Samuels Glass Co. v. Martin, Tex.Civ.App., 131 S.W.2d 325.

There is this exception to the stated rule, that if the judgment is not entered in the minutes at the term at which it is rendered, but is entered nunc pro tunc at a subsequent term, then the appeal bond, to be effective to support appeal, must be filed after such entry; if filed before, it is functus officio. Samuels Glass Co. v. Martin, Tex.Civ.App., 131 S.W.2d 325, and authorities there cited.

The question is, Can the provision in sec. 31 of Art. 2092, that the appeal bond “shall be filed within thirty (30) days after the judgment or order appealed from is rendered,” be construed by the courts to mean that the bond may be filed at any time within thirty days after entry of judgment, without regard to the time of rendition? Obviously, to accomplish that construction the courts must substitute the words “entered (in the minutes)” for the word “rendered”.

It is settled that sec. 31, the provision in question, is mandatory. National Consol. Bond Corp. v. Burks, Tex.Civ.App., 114 S.W.2d 280, and authorities there cited.

The specific question presented here does not appear to have been decided by any of our appellate courts. But similar provisions of other statutes prescribing the time for perfecting appeal or writ of error have been numerously construed by our courts, and by this analogy the uniform rule seems to be that the time for taking this step must be computed from the day of the pronouncement, or renditipn, of judgment, and not from the day of its entry of record.

For example, it is provided in Art. 3699, R.S.1925, that in an appeal from an order or judgment in probate the bond must be filed “within fifteen days after such decision, order, judgment or decree shall have been rendered.” It is held that the time for filing the bond under that provision must be computed from the date of rendition, and not from a later date of entry. Davis v. Moore, Tex.Civ.App., 131 S.W.2d 798, and authorities there cited. No difference is perceivable between that provision and the one under consideration in this case.

Much broader is the provision in Art. 1742, R.S.1925, that petitions for writ of error to the Supreme Court “shall be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for rehearing.” It is held by our Supreme Court that the time for filing the petition must be computed from the date the motion for rehearing is overruled rather than from a later date of entry of the order. Long v. Martin, 112 Tex. 365, 247 S.W. 827.

The language of the statute prescribing the time for suing out writs of error in trial courts is apparently identical, in effect, with the provision here involved. In that case it is provided that “the writ of error * * * may be sued out at any time within six months after the final judgment is rendered.” Art. 2255, R.S.1925. The provision under consideration is, “within thirty (30) days after the judgment * * * is rendered.7 Art. 2092 sec. 31. Under the writ of error statute it is uniformly held that the time for suing out the writ must be computed from the day the judgment is pronounced, and not from a later day on which the judgment is entered. 3 Tex.Jur. § 181; Kittrell v. Fuller, Tex.Civ.App., 281 S.W. 575; Kuchenmeister v. W. J. Williams, Inc., Tex.Civ.App., 60 S.W.2d 279; C. S. Hamilton Motor Co. v. Muckleroy, Tex.Civ.App., 46 S.W.2d 452; Brinkley v. State, Tex.Civ.App., 49 S.W.2d 516.

So has it been held in aid of the right of appeal, under Art. 2255, that in the absence of a showing of the date of rendition, the courts will presume the judgment was entered on a date which upholds, rather than defeats, appeal. C. S. Hamilton Motor Co. v. Muckleroy, Tex.Civ.App., 46 S.W.2d 451. And so has it been held, with a like laudable object, that in the absence of a showing to the contrary appellate courts will presume that a judgment was rendered on the recited date of entry. National Consol. Bond Corp. v. Burks, Tex.Civ.App., 114 S.W.2d 280. These presumptions, 'however, are of no avail here, for the positive and reiterated recitals in the judgment show that it was arrived at, pronounced and rendered, and notice of appeal given on April 9, whereas, it appears with equal proof that the judgment was actually entered on April 17. The appeal bond was not filed until May 15, although executed on April 30.

Under the authorities cited, which we deem too clearly analogous to this case to be disregarded in this decision, we hpld that the appeal bond was filed too late to give this court jurisdiction because not filed “within thirty days after the judgment appealed from (was) rendered.”

It is true that in many cases it has been stated, generally, that the time for filing appeal bond must be computed from the day of entry, rather than rendition of judgment, and that an appeal bond is prematurely filed and functus officio if filed before entry of judgment. But the broad conclusion is found consistently to be based upon decisions in appeal from judgments which had been entered nunc pro tunc. That is the rule in such cases, but it is not the rule in cases where judgments have been entered at the term at which rendered. The distinction is drawn and the reasons for the different rules stated in Samuels Glass Co. v. Martin, Tex.Civ.App., 131 S.W.2d 325.

There cannot be two fixed dates from which time for filing appeal bonds may be computed, since the procedure is regulated by statute which prescribes only one such date, to-wit: the date the judgment appealed from is .“rendered.” It is not for the courts to inquire into the reasons prompting the Legislature to fix upon that date or to argue that the date of entry-might be more just and practical than that of rendition. It might be argued that since the party desiring to appeal ought to he informed and know the specific terms and provisions of the judgment, first, to be sure he is aggrieved thereby, and, second, to be able to describe the decree in his appeal bond as required of him by statute, it is only fair that he should not be required to file bond until after entry of judgment. On the other hand, the date of rendition may be the more just and practicable, as, so forcefully argued by Justice Alexander in Cleburne Nat. Bank v. Bowers, Tex.Civ.App., 113 S.W.2d 578. But these are problems for the Legislature, which settled them in fixing the period of reckoning at thirty days from the “rendition” of the judgment.

Appellant has filed a motion for leave to amend the record to show that judgment was actually rendered on April 16. But the allegations in said motion, and in appellant’s reply to appellee’s motion to dismiss, show conclusively that the judgment was actually rendered on April 9, as repeatedly recited in the judgment itself. Therefore, to grant appellant’s motion would be futile, and it is overruled.

Appellee’s motion to dismiss the appeal will be granted; appellant’s motion to amend the record will be overruled.

It is so ordered.


author: BAUGH, Justice.

text:
    CHILDERS et al. v. JOHNSON et al.
    No. 8948.
    Court of Civil Appeals of Texas. Austin.
    July 24, 1940.
    Rehearing Denied Sept. 25, 1940.

      Leon D. Glasscock, of San Antonio, for plaintiffs in error.
    N. T. Stubbs, of Johnson City, for defendants in error.
   BAUGH, Justice.

The parties will be designated as in the trial court. The case arose as follows: On March S, 1939, Nemon Johnson and Iffie Johnson, tvfro negroes residing in Precinct No. 4 in Blanco County, were the owners of 1S3 head of goats. On that date, same being on Sunday, Wesley City filed suit before W. W. Childers, Justice of the Peace, against Nemon Johnson “for the sum of five dollars, due upon demand, payable at once.” This action was predicated upon the Johnsons allowing said goats to run at large in alleged violation of a local stock law, and trespass upon and damage to the premises of Wesley City. The Justice of the Peace on the same day issued what purported to be a citation, delivered it to the Constable; W. J. Conley, with instructions to him to impound the goats and serve Johnson. The Constable read the-citation to Johnson’s wife, but left no copy, and Nemon Johnson was never served with citation. Nemon and Iffie Johnson thereupon offered to pay City and the Constable all damages sustained by City, and the 10 cents per head per day provided for in Art. 6939, R.C.S.192S, if they would surrender possession of the goats to the owners. This they refused to do, and the Justice of the Peace refused to authorize surrender of the goats, unless Nemon and Iffie Johnson would pay, under the provisions of Art. 6965, R.C.S.1925, the sum of $1 per head, which these negroes were unable to do. The goats were driven to the town of Blanco, and on March 15, 1939, sold at auction, not by the Constable, but by the Justice of the Peace himself, to Walter Yett for the sum of $125. At this purported sale, which clearly was not made in compliance with Art. 6939, Nemon and Iffie Johnson appeared, gave notice to bidder that the goats belonged to them; that they had been unlawfully seized; and that they would sue the purchaser to recover them.

The following day, March 16, 1939, Ne-mon and Iffie Johnson brought this suit against the Justice of the Peace, the Constable, the complainant City, and Yett, the purchaser of the goats, for possession of the goats and for damages.

The defendants answered at length by pleas in abatement, special exceptions, general and special denials, pleaded that a special stock law was in force in this precinct and that said goats were seized and sold in accordance with such law. By supplemental petition, the plaintiffs attacked all of said proceedings, including the judgment of March 15, 1939, as void.

Trial was to the court without a jury, and judgment rendered in favor of Nemon and Iffie Johnson for title to and possession of their goats, and for $4.80 damages against all of the defendants, from which the defendants hav.e prosecuted this writ of error.

The defendants’ first contention is that this suit constituted a collateral attack upon the justice court judgment, valid on its face, and should therefore have been abated by the trial court. That in any event, the plaintiffs could not urge the invalidity of the justice court judgment in a supplemental petition.

Since the plaintiffs’ suit was for recovery, as owners, of their property, illegally taken from them, and their proof indisputably showed such ownership; and since the defendants themselves in defense of such suit specifically pleaded the justice court judgment as their authority for the sale of the goats, we think the defendants clearly thereby put directly in issue the validity of the judgment relied upon by them to sustain their conduct, which, unless sustainable under said judgment, was clearly illegal. Having thus themselves put in issue the validity of their own judgment as a defense, attack thereon by plaintiffs was properly made by supplemental pleadings in answer thereto.

It may be observed that there is nothing in the record to show that the defendants ever called attention to, or secured any action by, the trial court on their special pleas. No action thereon is shown of record, the judgment does not dispose of them specifically, and no exceptions were ever made to any action, or failure to act, thereon. It is doubtful, therefore, if they are properly presented here.

However that may be, and whether plaintiffs’ pleadings, original or supplemental, constituted a collateral attack upon the justice court judgment; we have reached the conclusion that the trial court was authorized to-find, as he evidently did, that that judgment was void. If it was, then the judgment herein was manifestly correct, regardless of the other questions raised.

The general rule is settled that a judgment of a court of general jurisdiction which has jurisdiction over the subject matter of the suit and of the person of the defendant, regular on its face, is not subject to collateral attack. Though valid citation to a defendant is essential to jurisdiction, it now seems settled that if the judgment itself recites that personal service was had, evidence aliunde is not admissible, in a collateral attack, to show lack of service. Crawford v. McDonald, 88 Tex. 626, 632, 33 S.W. 325; 25 Tex.Jur. § 330, p. 857; 26 Tex.Jur. § 167, p. 991.

Since, however, it affirmatively appears that the only process issued was issued on Sunday; that the purported citation was never served upon the defendant, and the officer’s return so shows; that the judgment rendered thereon was not rendered at a regular term of said court; and that same was entered less than ten days after the purported service and return thereof, and for a greater sum than the plaintiff sued for (see Arts. 2381, 2400, and 2036, R.C.S.1925), we think the trial court was authorized to conclude that the justice court judgment, notwithstanding the recitals therein, was void and not merely voidable. It did not require proof dehors the record itself to show its invalidity. That being true, and its invalidity so shown, the method of attack upon it is immaterial.

There is another ground upon which the trial court’s judgment herein can, we think, be sustained. The evidence was amply sufficient to show, if in fact it does not conclusively show, that the Justice of the Peace was seeking to impound the goats and to collect charges thereon under the provisions of Art. 6965, R.C.S., applicable to other stock, and not under Art. 6939, applicable to sheep and goats. That after consultation with counsel, Nemon and Iffie Johnson offered and were able and willing to pay all damages, claimed by City, 'and the fees provided for in Art. 6939; but that the Constable and Justice of the Peace refused to accept same or deliver the goats to the owners. That after the goats had been sold at Blanco on March 15th, and notice given that this suit would be filed, the Justice of the Peace, who had sold them, then employed an attorney for his own protection, that of his constable, and of the purchaser of the goats, to get him out of “the jam” as he termed it in his testimony. The evidence and the surrounding facts and circumstances were sufficient to authorize the trial court to conclude that the justice court judgment was, regardless of citation, term time, and want of process, drawn and entered for the purpose of defense against the instant suit; notwithstanding the absence of essential jurisdictional requirements.

Manifestly, the Johnsons were not estopped from recovering their goats by failure to file affidavit and bond authorized under Art. 7402 et seq., R.C.S., relating to trial of right of property. They could have resorted to other methods to prevent such sale, but they were not compelled to do so. They registered their protests and gave notice, to all prospective purchasers at the sale, of their claims. Hence no question of innocent purchaser could arise. And manifestly the defendants cannot be heard to urge, as against their own illegal acts, the failure of the plaintiffs to resort to other remedies afforded by law to prevent an illegal sale of their goats, as now estopping them to complain of the wrongful condüct of the defendants in unlawfully taking their property.

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

Affirmed.


author: NORVELL, Justice.

text:
    McBRIDE v. CANTU.
    No. 10959.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 18, 1940.
    S. L. Gill and Kennedy Smith, both, of Raymondville, and Sam G. Reams, of Fal-furrias, for appellant.
    F. G. Garza and Gerald Weatherly, both of Falfurrias, and E. G. Lloyd, Jr., of Alice, for appellee.
   NORVELL, Justice.

James McBride and Lino Cantu were the only candidates for . the Democratic nomination for the office of County Commissioner of Precinct No. 3, of Brooks County, Texas, at the Democratic primary election held on July 27th, A. D. 1940.

The Democratic Executive Committee, after the primary, met, canvassed the returns and declared the results of said election, which were that McBride had received 162 votes and Cantu, 165 votes. Shortly after this action by the Democratic Executive Committee of the county, McBride brought proceedings to contest the election before said committee. The County Committee held that McBride had a majority of the legal votes and consequently was the duly nominated candidate of the Democratic party for the office in question.

From this ruling Cantu took the case to the District Court of Brooks County, where it was tried at a special term before Hon. Cullen W. Briggs, Judge of the 117th District Court of Nueces County, who had been designated as trial judge by the presiding judge of the Fifth Administrative Judicial District of Texas.

Trial was to the court, which entered judgment that Lino Cantu had received a majority of the legal votes cast for the nomination for the office of County Commissioner, Precinct No. 3, Brooks County, Texas. Cantu was declared to be the Democratic nominee and candidate for the position involved. McBride brings the case here.

Cantu in this court has moved to dismiss the appeal for want of jurisdiction, contending that the provisions of Article 3148, Vernon’s Ann.Tex. Civ. Statutes,' were not complied with in bringing the contest before the County Democratic Executive Committee; that said committee had no jurisdiction, and consequently the District Court and this court are without jurisdiction. We have concluded that McBride, in filing the contest, complied substantially with the provisions of this applicable statute, and that the motion is without merit; it is therefore overruled.

McBride, in the trial court, attacked the validity of the votes of eight persons who had voted for Cantu. Cantu in turn, under proper pleadings, introduced evidence tending to show that one vote cast for McBride was illegal. The trial court sustained three of McBride’s challenges and it was conceded by McBride that the vote cast' for' him and challenged by Cantu was illegal and should not be counted. The vote as determined by the District Court was: Cantu 162; McBride 161.

McBride, by proper assignments of error, challenges in this court the trial court’s findings of fact, made and prepared upon proper request, supporting the conclusions that the votes of the following named persons were legal and valid votes, namely: Jose Ruelas and his wife, Arcadia Ruelas, Adela Villarreal, Petra Baldomar and Lucia G. Pena. McBride contends that the first three named persons were not duly qualified electors of Commissioner’s Precinct No. 3 of Brooks County, in that all o.f said parties were residents of Hidalgo County, Texas.

The trial court found that the residence of Jose Ruelas and wife was in voting and Commissioner’s Precinct No. 3, Brooks County, where they had continuously maintained their residence and owned their home and 200 acres of land for approximately twenty-four years, on and prior -to July 27, 1940; and that said Jose Ruelas and his wife had paid their poll taxes and possessed the other requisites entitling them to vote in such election in the aforesaid precinct.

The trial court also found that the residence of Adela Villarreal was in voting and Commissioner’s Precinct No. 3, in Brooks County, Texas, where she was born, and where she and her husband, Gilberto Villarreal, since marriage had continuously maintained their residence up to and including July 27, 1940; that they owned a home in said precinct and county; and that the said Adela Villarreal had paid her poll tax and possessed the other requisites entitling her to vote in such election 'in the aforesaid precinct.

McBride contends that these findings of fact are against the overwhelming preponderance of the testimony. The statement of facts shows that in September, 1939, Jose Ruelas and wife moved to McAllen, Hidalgo County, Texas, closing up their home in Brooks County and taking most of their furniture with them. The farm which they owned in Brooks County was leased and Ruelas went into business in McAllen for a time and later stayed there looking for work.

Ruelas testified that as there was no high school in Precinct No. 3, Brooks County, he' took his family to McAllen for the purpose of placing his children in school, and not for the purpose of making a home; that when his children finished school at McAllen he would come back to his home in Brooks County that he rendered and paid his poll tax and other taxes in Brooks County for 1939 and 1940; that he had voted in Precinct No. 3 in a school election held in April, 1940, and that he and his wife had voted in every election for about twenty-four years in Brooks County and had not voted elsewhere.

The statement of facts discloses that Adela Villarreal was born and reared in Brooks County and married Gilberto Villarreal in' Brooks County in 1939. In March, 1940, she and her husband moved to Mission, Hidalgo County, Texas, where they occupied two furnished rooms in the home of a brother-in-law of the husband. She testified that her husband went to Mission looking for work; that he had a job in a Mission cafe from April to June, when he lost it and then after a short time went to work for the Sun Oil Company.

■ She also testified that she and her husband claim Brooks County, where they own a furnished home, as their residence and that Mission is not and has not been their home; that her husband’s work with the Sun Oil Company is temporary, and when it is finished, she and her husband intend to return to their home in Brooks County.

If the testimony of the witnesses, above set forth, is to be given any weight or consideration at all, it clearly supports the theory that the absence of these parties from Brooks County was temporary and that their removal was not made with the intention of abandoning their respective residences in Brooks County. The issue therefore presented is whether or not, under the terms of Article 2958, Vernon’s Ann.Tex.Civ.Statutes, evidence of intention can be legally considered in determining the residence of a married person for voting purposes.

The appellant relies upon the case of Garvey v. Cain, Tex.Civ.App., 197 S.W. 765, 772, wherein the Beaumont court held that “Our present statute seems to clearly enough define what is meant by ‘residence,’ that is, actual physical living in a place, thus furnishing a test which can be practically applied by election officers and courts, a test of fact, instead of an abstract test of ‘intention,’ which necessarily could not be applied by any one except the voter himself, and by him in as many different ways and in reference to as many different places as might, suit his convenience at different times.”

We are not here concerned with the question of the residence of a single man, under the provisions of Article 2958. The question of whether or not the intention of a married person may be considered in determining his legal residence for voting purposes is no longer an open question in this jurisdiction. While it may be conceded that cogent and persuasive arguments may be marshalled in support of the rule laid down in Garvey v. Cain, holding that the residence of a married person is “one purely of fact,” the late Chief Justice Fly of this court, expressly disapproved of the doctrine of the Garvey case advanced by appellant here, and in Huff v. Duffield, Tex.Civ.App., 251 S.W. 298, 300, quoted with approval the following from Reid v. King, Tex.Civ.App., 227 S.W. 960 (decided by the Beaumont Court of Civil Appeals, subsequent to Garvey v. Cain, supra): “A removal to divest one of his right to vote must be accompanied by an intent to make a new, domicile and quit the old. Mere removal, coupled with an intent to retain the original domicile and return to it, will not constitute a change.”

The testimony of a witness as to his intention is, of course, not necessarily controlling. It is, however, an element which may be considered by the authority authorized to determine fact issues — the jury or the trial judge. In our opinion the correct rule is stated in Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865, 866, by the El Paso Court of Civil Appeals, wherein it was held that although the declaration of a voter as to'his intention is not controlling it is an element which may be considered. In other words, the question of the residence of a married person for voting purposes under Article 2958, is one which “must be determined by reference to the actual facts and circumstances; one of which will be his intention.”

It is our holding that the triai court’s findings in regard to legality of the three votes above discussed are supported by the testimony, and appellant’s assignments attacking said findings are accordingly overriiled. Clark v. Stubbs, Tex.Civ.App., 131 S.W.2d 663; McBeth v. Streib, Tex.Civ.App., 96 S.W.2d 992; Hill v. Mays, Tex.Civ.App., 278 S.W. 919; McCharen v. Mead, Tex.Civ.App., 275 S.W. 117.

Appellant further challenges the legality of the votes of Petra Baldomar and Lucia G. Pena, asserting that such votes were illegal under the provisions of Articles 2956 and 3010, Vernon’s Ann.Texas Civil Statutes. The statement of facts discloses that these two women voted absentee in the primary election. They came to the .office of the County Clerk tbgether, and one witness testified that he observed them while they were voting and they were discussing their ballots together and each giving aid and assistance to the other in casting the vote. This testimony was flatly contradicted by the two women, who, in substance, testified that they had entered the clerk’s office together, but that when the ballots were delivered to them, the County Clerk seated one of them at one end of the table and the other at the other end, that neither assisted the other or knew how the other voted. The trial court found as a fact that« both had paid poll taxes; that they did not show each other their ballots, and neither of them received from the other any assistance in marking or casting her ballot.

This testimony raises questions of fact purely within the province of the trial court to decide. It was his conclusion that no illegal assistance was given in connection with these votes and that finding is binding here.

Article 2956 relates to absentee voting and provides that absentee ballots shall be voted in “the office of said clerk of said county, and in the presence of said clerk and of no other person.” Appellant asserts that these votes were invalid as both voters were seated at the same table in each other’s presence, even though they did not assist each other in voting.

In the case of Stratton v. Hall, supra, the El Paso Court of' Civil Appeals said:

“Clifford Ramsey, Mrs. B. Ramsey, and Mrs. E. L. Stratton, Sr., all voted absentee ballots, and appellant contends that their ballots should be disregarded because they failed to comply with the provisions of article 2956, as amended by chapter 300 of the Acts of the 44th Legislature (Vernon’s Ann. Civ. St. art. 2956).
“The contention of appellant is that the provisions of such article are merely directory and that a failure to comply with them should not be used to disfranchise voters. With such contention we agree. It appears to be well settled that in the absence of a statute prohibiting the counting of ballots because of irregularities either in preparing or casting, and in the absence of fraud or of a showing that the. returns were changed or tampered with, ballots cast by qualified voters should be counted. Hooker et al. v. Foster et al. (Tex.Civ.App.) 19 S.W.2d 911; Ramsay v. Wilhelm (Tex.Civ.App.) 52 S.W.2d 757 (writ refused).”

As pointed out in the Stratton case, Article 2956 does not provide that a ballot voted in the presence of some other person than the County Clerk shall be void.

Article 3010 entitled “Aid to voter” contains provisions for election booths and prescribes how legal assistance in voting may be rendered to the illiterate, aged and infirm. It further expressly provides that “where any assistance is rendered in preparing a ballot other than as herein allowed, the ballot shall not be counted, but shall be void for all purposes.” It has, however, been held that the failure to observe the provisions of article 3010, which do not relate to assisting the voter in preparing the ballot, do not invalidate the vote. In Altgelt v. Callaghan, Tex.Civ. App., 144 S.W. 1166, 1171, Justice Fly said: “The provision of the law [now Article 3010] in regard to voting booths is for the purpose of obtaining secrecy of ballot and is peculiarly for' the benefit of the voter, and, while the law in regard to voters preparing their ballots in the booths should be enforced, the failure to do so would not invalidate the votes of those not using the booths.”

Appellant’s challenges to the votes of Petra Baldomar and Lucia G. Pena are overruled.

What has been said makes it unnecessary for us to consider appellee’s cross-assignments of error relating to the three votes cast for Cantu, which the trial court held to be illegal, and we therefore express no opinion with reference thereto.

The judgment of the trial court is affirmed.

SMITH, C. J., did not participate in the decision of this case.


author: BLAIR, Justice.

text:
    FISCHER et al. v. REISSIG et al.
    No. 8956.
    Court of Civil Appeals of Texas. Austin.
    July 17, 1940.
    Rehearing Denied Sept. 25, 1940.
    Wm. Trenckmann and Coleman Gay, both of Austin, for appellants.
    Harris & Harris, of Austin, for appel-lees.
   BLAIR, Justice.

The parties will be designated as in the trial court. Plaintiffs, H. IT. Reissig and others; property owners in Oakmont. Heights in the City of Austin, sued defendants, Erwin Fischer and others, owners of Lot. No. 1, Block No. 3, in the said addition, and who at the time had begun the construction of two residences thereon. The plaintiffs brought suit to enjoin the construction of the houses, contending that the said houses did not comply with the restriction in the deed: “The dwelling house, as distinguished from outhouses an,d servant’s quarters, shall face the street upon which the lots front, and no part thereof shall be nearer than 25 feet to the front property line. All other structures shall be in the rear of the dwelling house.”

On the hearing of the temporary injunction, the court ordered, “that defendants be permitted to proceed with the construction of such buildings to their completion, and to file their written report with the court, showing the completion of same, their locations, cost of construction, etc., at the risk, however, of defendants, and upon the filing of said report the court will hear further evidence and finally determine whether or not the said buildings comply with the terms of the restriction.” Pursuant to this order, the houses were completed; and after final report and hearing the court entered its judgment finding that the house facing West 36th Street was constructed in compliance, with the building restrictions in the deed; but that the house facing Oakmont Heights Boulevard was constructed for use as a dwelling and that it did not face the street upon which the lot fronts, in violation of the restriction regulating the frontage of buildings. Therefore, the court granted a mandatory injunction and ordered the removal of the house facing Oakmont Heights Boulevard; hence this appeal.

Appellants contend that, “since the restrictions upon Lot No. 1, Block No. 3, in Oakmont Heights, did not expressly prohibit the erection of more than one dwelling house upon said lot, such restrictions would not be enlarged by implication to prohibit the erection of more than one house thereon, such restrictions being strictly construed against the grantor.”

It is true that there is no express prohibition of the erection of more than one dwelling house upon the lot, and we recognize the general rule that covenants and agreements restricting the free use of property must be strictly construed, favoring the grantee and against the grantor, and all doubts should be resolved in favor of the free and unrestricted use of the premises. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014, 1015; Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318; Ragland v. Overton, Tex.Civ.App., 44 S.W.2d 768; 14 Am.Jur., 621, § 212; 18 C.J. 386, § 450. We think, however, in applying this rule of strict construction to the restriction quoted, that it was clearly intended to provide, (1) that only one dwelling house should be erected on each lot in the addition; and (2) that the house should face West 36th Street. That is, in applying the general rule of strict construction to the restriction, “The dwelling house, as distinguished from outhouses and servant’s quarters, shall face the street upon which the lots front, and no part thereof shall be nearer than 25 feet 'to the front property line,” the article “the” preceding “dwelling house” clearly indicates th.at only one dwelling house shall be built on each lot. The clause, “the dwelling house,” is used 'in the singular, and the article “the” as used before the noun “dwelling house” was intended to be used in the sense of specifying or particularizing that only one such dwelling house should be built on each lot.

The court found that the house facing West 36th Street was constructed in compliance with the building restrictions. The appellants contend that the clause, “All other structures shall be in the rear of the dwelling,” expressly provides that other structures might be built on said lot if such structures were built in the rear of the dwelling house; and that this clause would allow them to construct another residence at the rear of the dwelling house. However, the court found that the building facing Oakmont Heights Boulevard was constructed for use as a dwelling, which would necessitate the application of the restrictions of the dwelling house to this building facing Oakmont Heights Boulevard. In making this application, the court found that the structure does not face the street upon which the lots front, and was therefore in violation of the restriction regulating the frontage of buildings. Assuming, however, a compliance with this facing restriction, an impossible situation would be created because of the restriction that “all other structures shall be in the rear of the dwelling,” in that the house facing West 36th Street, found by the court to be in compliance with the building restrictions, will now be in front, rather than in the rear of this second dwelling house. It is physically impossible to place two dwelling houses, each in compliance with all of these building restrictions, on the same lot, since in complying with the facing restrictions they will always be either side by side or one, in front of the other, and in neither position can both dwelling houses simultaneously have all other structures in the rear.

Still another rule of construction is applicable here, which is stated in 18 C. J. 386, § 450, as follows: “In construing covenants of restriction as to the use of property, the circumstances and conditions surrounding the parties and property must be considered as well as the manifest objects of the grant of restriction. So the intent of the parties and the object of the deed or restriction should govern, giving the instrument a just and fair interpretation.”

This general rule of construction is applied to building restrictions. Brown v. Hojnacki, 270 Mich. 557, 259 N.W. 152, 97 A.L.R. 621; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 715, 155 S.W. 861; Kitchen v. Hawley, 150 Mo.App. 497, 131 S.W. 142; 18 C.J. 386, § 450, footnotes 16 & 17. In Green v. Gerner, 283 S. W. 615, the Court of Civil Appeals applied this general rule in giving the language its ordinary meaning and enforcing it according to the parties’ understanding and intention; and the Commission of Appeals, 289 S.W. 999, held that the Court of Civil Appeals had properly interpreted the restrictive. languáge of the deed.

In White v. Hansen, Tex.Civ.App., 21 S.W.2d 1091, where there was involved a restriction that no building could be used as a dwelling which cost less than $2,500 and no building constructed for purposes other than a residence could be used or occupied as a residence, it was held that there could not arise from the restriction such an implication that would prohibit the owners from residing temporarily in the servant’s house until they could finance and complete their main residence, provided the residence was contemplated within a reasonable time. However, the Commission of Appeals, 36 S.W.2d 456, 458, held that the deed at the very least contemplated that where outhouses were first constructed the main residence should thereafter be erected without delay. In disapproving the strict construction of the Court of Civil Appeals, Judge Critz said, “Such a construction would practically nullify the restrictive covenants in the deed.”

Applying this principle of construction to the general tenor and language of the restrictions in question, and from the testimony given, and from uniform use of the restrictions in this addition, it seems clear to us that the intention was to have a restricted residential addition with only one dwelling house on each lot.

Having carefully considered all the questions presented in the brief, we affirm the judgment of the trial court

Affirmed.


author: JACKSON, Chief Justice.

text:
    GULF OIL CORPORATION v. HORTON et ux.
    No. 5077.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 9, 1940.
    Joseph H. Aynesworth, of Borger, and Wm. L. Wise and Oliver W. Fannin, both of Fort Worth, for appellant.
    G. C. Harney, of Sherman, for appellees.
   JACKSON, Chief Justice.

On March 27, 1930, C. C. Horton and wife, Wilma Horton, called lessors, leased to the Gulf Refining Company, designated lessee, part of Lots 15 and 16 in Block 45 of the town of Borger. The provisions of the contract which are material to a disposition of this appeal are contained in the following sections:

“It is contemplated and agreed between the parties hereto that the property herein leased is to be used by the Gulf Refining Company for a filling station and for pur-t poses connected therewith and that the term of this lease shall commence on the 1st day of May, 1930 and shall run for a period of Five (5) years.
“It is further agreed and understood that the Lessee shall have the privilege and right to sub-lease all or any part of the property hereby leased it with the expressed understanding that such sub-letting shall not have the effect of releasing Lessee from any of its obligations under this lease.
“Lessee shall have the right and privilege to place all necessary, usual and customary equipment on the leased premises for the purpose of carrying on the business of selling petroleum products and shall have the right to remove the same at the expiration of the lease, or within a reasonable time thereafter.
“Lessee covenants and binds itself to obey all sanitary rules and regulations now in force, or which may hereafter be adopted, in the use of such property and the occupancy thereof, and to commit no waste. Lessee further covenants that it will pay the rent from month to month as the same falls due, and if such rent is not paid when due and Lessee remains in default for as much as ten (10) days after written notice and demand on it to pay the rental, Lessors shall have the right to cancel this lease, re-enter and take possession of the property; but this shall not be the exclusive remedy; however, in such cases Lessee shall have the right to remove any property which it may have put upon the leased premises, within a reasonable time after such forfeiture is declared.”

The lessors had prior to the execution of the lease occupied and operated a filling station on the premises selling and delivering oil, gas and greases. The four gasoline tanks used by the lessors were the property of the lessee and were buried* just sopth of the leased premises. The lessee when it acquired the premises desired to remove the four tanks from their then location and place them underneath the driveway which was constructed of cement. In order to place the tanks where lessee desired, it was necessary to break and remove the cement which constituted the driveway, make an excavation for the tanks under the location of the old driveway and install the pipes required for use in serving air and gasoline to automobiles, after which the concrete driveway was reconstructed, which the lessee did at its own cost and expense with the permission of and in a manner satisfactory to the lessors.

The Gulf Oil Corporation acquired all the rights of the Gulf Refining Company in the lease and continued to operate a filling station on the lots until the lease terminated by its own provisions.

The appellees, C. C. Horton and wife, instituted this suit in the County Court of Hutchinson County against the appellant, the Gulf Oil Corporation, to recover $185.-66 predicated on the provision in the contract obligating lessee and its sub-lessees “to commit no waste” on the premises.

They alleged that the appellant in removing'its tanks and equipment from the premises broke the concrete constituting the driveway, tore out the pipes used for air and gasoline, took away the dirt covering the tanks and removed them leaving holes or excavations in the earth and failed and refused to refill the holes or place the premises in the condition they were prior to the removal from the property of appellant’s tanks and equipment; that appellant thereby violated its contract and committed waste which appellees were compelled to repair at the reasonable and necessary cost of $185.66. They also pleaded that they proposed to buy from appellant the tanks which it had placed under the driveway if it would leave them in that position or that they would give appellant other tanks therefor, but neither of these propositions was accepted; that they also requested appellant after it had removed its tanks to allow them to place tanks which the appellees owned in the excavations left by appellant but this was refused and appellees, without the permission of appellant, proceeded to place their four tanks in such excavations and appellant failed to restore the premises to the condition it was before the removal of its tanks and equipment.

The appellant answered by general demurrer, special exceptions, pleaded the two-year statute of limitation, Vernon’s Ann.Civ.St. art. 5526, and alleged specially that if any obligation existed upon it to restore the premises the appellees released it therefrom by taking physical possession of the property as they allege and placing their tanks in the holes which had been excavated at the cost and expense of appellant and its predecessors in the lease.

The case was submitted to the jury on special issues, and upon their answers thereto the items of which aggregated $201:50, $46 of which was remitted by appellees, the court rendered judgment against appellant for the sum of $185.66 with interest thereon at the rate of 6% per annum.

The appellant challenges as error the action of the court in refusing to give its requested peremptory instruction since the appellees as a matter of law were not entitled to recover under the pleadings and the testimony.

The appellees charged the appellant and its successors with no fraud, accident or mistake in the' execution or performance of the contract. Neither did they allege that appellant was guilty of any negligence or want of care in the removal of its property from the premises.

The word “waste” used in connection with real estate means generally the destruction of houses,, trees or other corporeal hereditaments on the premises by a tenant who is rightfully in possession but has. no absolute or unqualified title to the property.

The law imposes upon a tenant or lessee the duty to take good care of the premises, wear and tear excepted, and this obligation is implied where not expressly waived whether written into the lease contract or not. Norman v. Stark Grain & Elevator Co., Tex.Civ.App., 237 S.W. 963. However, in this rental contract the lessee was obligated to commit no waste. It will be noted, however, from the contract that the premises were let to be used for a filling station and for purposes connected therewith and the lessee was authorized to place all necessary, usual and customary equipment on the premises for the purpose of carrying on the business of selling petroleum products with the right at the ex-# piration of the lease to remove all property and equipment placed thereon by it. The contract also stipulates that the lessee shall pay the rent by the month and should it default for ten days after written notice the appellees are authorized to re-enter and take possession of the premises; however, the lessee is given the right under such circumstances to remove any property which it may have put upon the premises.

The lessee is also authorized to sublet the property. It is the universal rule that all the provisions of a contract should be construed together and each given the meaning intended by the parties where practicable.

In 26 C.J. 711, para. 103, the law is stated to be: “If there is a stipulation clearly giving to the tenant the right to remove annexations of a named character, the fact that the removal will result in injury to the leased premises, is immaterial. The language of the stipulation may, however, call for a different construction.”

In 36 C.J. 177, para. 828, the law is announced as follows: “Where the tenant is given the right to make improvements and remove them during the term, the right to remove includes the right to do such damage to the freehold as such removal will naturally cause, and the tenant is liable only for such damages as are unnecessarily or wantonly caused by him.”

In Sutherland on Damages, Vol. 3, section 875, page 3255, it is said: “Where authority is given a tenant to remove machinery he has put in it it is implied that he may do such damage to the freehold in making the removal as in the exercise of ordinary care was necessary.”

The law so announced is approved in Arkansas Fuel Oil Company v. Connel-lee, 39 S.W.2d 99, by the Eastland Court of Civil Appeals, which we think is conclusive against appellees’ right to recover under their allegations, since there is 'no contention either in the pleadings or proof that appellant failed to use ordinary care in removing its property from the premises. This it was authorized to do under the contract and there is no language in the agreement requiring a different construction-

In our opinion the court erred under the record in refusing to direct a verdict in behalf of appellant for which reason it is unnecessary to discuss the other assignments of error urged and the judgment is reversed and here rendered that appel-lees take nothing.


text:
    HUMBLE OIL & REFINING CO. et al. v. POTTER et al.
    No. 9006.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1940.
    Rehearing Denied Sept. 25, 1940.
    R. E. Seagler and H. E. Bell, both of Houston, and Powell, Rauhut & Gideon, of Austin, .for appellant Humble Oil & Refining Co.
    T. L. Foster, of Dallas, and Powell, Rauhut & Gideon, of Austin, for appellant Sun Oil Co.
    J. M. Deavenport, of Kilgore, and Pace & Goens, of Tyler, for all appellees except the Railroad Commission and its Members.
    Gerald C. Mann, Atty. Gen., and Ed Roy Simmons, Asst. Atty. Gen., for appellee Railroad Commission and its Members.
   BAUGH, Justice.

This is a Rule 37 case. The land involved consists of 8.97 acres in Gregg County. It is L-shaped with an overall length of approximately 3,500 feet and a mean width of approximately 100 feet. The Humble Oil Company owns the lease on the lands adjoining its entire length on the west; and the Sun Oil Company a lease on the adjoining lands to the east. The Smith heirs owned title to this strip by limitation prior to the discovei'y of oil in this field. After such discovery, these heirs in July, 1934, by consent decree, or agreed judgment, in the District Court of Gregg County, partitioned said strip into nine tracts, vesting title to the separate tracts in these heirs severally. Meantime the Sun brought suit against them claiming that this land was included in its prior lease on the lands to the east. This suit was not finally disposed of until December, 1937. Thereafter two wells were drilled, under permits duly granted, on the 8.97 acres; one in September, 1938, on tract No. 8 of the subdivision thereof, and one in November, 1938, on tract No. 6. Thereafter the separate owners of Tracts Nos. 1, 3, 4, 5, 7 and 9 each filed separate applications for one well on each of said subdivisions on the ground that each subdivision was entitled to a separate development,. and to prevent confiscation. These applications were all heard together, were protested by the Humble and the Sun; and all six of said applications granted by the Railroad Commission on May 5, 1939. Confiscation was the • only ground considered by the Commission, and the Commission manifestly, in view of the drilling density and location of wells on adjacent tracts, based its permit orders on the conclusion that their rule against subdivisions, promulgated on May 29, 1934, did not apply; and that each of the owners of the separate tracts was entitled as a matter of right to develop his own tract separately.

The Sun and the Humble brought .statutory suits to set aside all of said six permits and to enjoin production from any wells drilled thereunder. Trial was to the court without a jury and after hearing the trial court sustained the permits for wells on tracts 3 and 9; and cancelled the other four. Only the Sun and the Humble have appealed.

We shall not undertake to discuss all of the contentions made by appellants; but have concluded that the trial court’s judgment must be reversed for the reasons hereinafter stated.

It is not controverted that the Smith heirs owned fee simple title to this 8.97-acre tract as far back as 1926. It was not subdivided from the adjacent larger tracts for oil development purposes. No question is raised but that they were entitled to development of the 8.97-acre strip as a whole, separate and apart from the adjacent leaseholds. But it is manifest that the subdivision of this tract in July, 1934, into nine tracts long after the discovery of oil in this immediate area, and after Rule 37 had become applicable thereto, no one of which tracts could be drilled without an exception to the Rule, gave the separate owners of such separate subdivisions no vested right to an exception to the Rule for development purposes. This under the holdings originally made by us in Sun Oil Company v. R. R. Comm., Tex.Civ.App., 68 S.W.2d 609, repeatedly adhered to, approved by the Supreme Court, and promulgated as a rule by the Commission itself, on May 29, 1934.

The partition of the tract by decree of the District Court, agreed to by the parties, was but a voluntary subdivision and gave, rise to no new rights thereunder. Humble O. & R. Co. v. Lasseter, Tex.Civ.App., 120 S.W.2d 541. The permits here involved clearly, therefore, cannot be sustained on the grounds upon which the Commission granted them.

The only issue considered by the Commission was that of confiscation. A review here, therefore, is confined to that question. Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73. Since the subdivisions, as above indicated, cannot be considered separately; the question of whether confiscation would result without other wells than the two already drilled thereon, must depend upon a consideration of the 8.97-acre tract as a unit, that is, as it existed before the subdivisions were made; and its relationship as a unit to the surrounding tracts.

It affirmatively appears that the Railroad Commission did not so consider it; and did not grant any of the six permits here attacked on that-basis. In brief, this question — that is, what additional wells, if any, the 8.97 acres treated as one tract would have been entitled to — has not been presented to nor determined by the Commission. The trial court, as is manifest, took the view that in the light of the facts proven, the 8.97 acres treated as one tract was entitled to two additional wells to protect it against confiscation, and so sustained two of said permits and struck down the other four. And appellees here urge that the evidence was sufficient to sustain an order granting two additional wells on the entire tract. This contention, however, overlooks the fact that the Railroad Commission has never determined, nor been asked to determine, how many wells, if the 8.97 acres be treated as one tract, are necessary to prevent confiscation on such tract-; and if any are so needed, where they should be located' thereon. These matters are delegated to the Commission for determination; and it is now settled that the courts are without authority to substitute their findings in such matters for those of the Commission, which, in the instant case, have not yet been made. Gulf Land Co. v. Atlantic Refining Co., supra; Shell Pet. Corp. v. Railroad Comm., Tex.Civ.App., 133 S.W.2d 194, writ refused.

Appellants contend, however, that with the two wells already drilled on the 8.97-acre tract, it had a greater density than the surrounding eight times area; that these two wells were draining to the tract, the underground sand strata conditions being substantially uniform, as much or more oil than was being drained from it by appellants' wells; and that under the proration schedules the tract would produce more barrels per acre per day than was being produced from existing wells on appellants’ lands. That consequently, as a matter of law and under the facts, all of said permits should have been held invalid by the trial court.

This contention of appellants is not sustained. No useful purpose would be served by citation of authorities and review of the rules applicable in determining the relative rights of adjacent leaseholders .on the issue of confiscation. The rule was recently restated by us in Ward Oil Corp. v. Overton Ref. Co., Tex.Civ.App., 139 S.W.2d 292, writ refused. The record in the instant case shows that the Sun, one of the appellants here, by suit wherein it claimed to own the leasehold on the 8.97-acre tract itself, prevented any development of this property until the latter part of 1938; that both the Sun and the Humble had, for many years prior thereto, through wells within drainage distance on each side of this strip of land, been extracting large quantities of oil from the pool. It was shown that the Humble has, up to May 1, 1939, extracted through wells on its adjoining 100-acre tract to the west, according to reports filed by it, 6,564 barrels per acre from beneath its tract; and that up to that time the two wells finally drilled on the 8.97 acres had extracted only 350 barrels per acre therefrom. The Sun likewise had been producing for years from its lease adjoining the strip on the east, and had, through its suit against appel-lees, long delayed and prevented them from recovering any of the oil beneath their lands. It thus becomes manifest that the owners of the 8.97-acre tract have not been given a fair and equal opportunity with their neighbors to recover their fair share of the oil in place beneath their tract. Since all wells in this area were given the same daily allowable, their property rights, not taking into account any question of waste, a matter which the Commission must determine, could be protected in the light of these facts, by giving to them a greater density of drilling on their tract.

Appellees also insist that there was evidence to show that there was greater sand thickness, and hence more oil in place, under this tract than under appellants’ tracts; and that since all wells in this area were prorated alike, appellees were entitled on this ground, to a greater density in order to recover their fair share of the oil in place. The evidence on this point is somewhat confusing and it is clear, we think, that the Commission did not consider these matters as grounds for granting said permits. Those matters can be presented to the Commission upon reconsideration by it of appellees’ applications, in case they desire to again apply to the Commission for additional wells on the 8.97-acre tract considered as a unit.

Having concluded that the Commission granted all of said permits on untenable grounds and in violation of its own rule of May 29, 1934, relating to subdivisions; and that the only^egal basis which could sustain, or would authorize, additional wells on the' 8.97-acre tract was not considered nor passed upon by the Commission ; it follows that all of said six permits so granted fall into the same category. The trial court was without power to substitute its findings for fact- findings which the Commission had not made. The whole controversy should, therefore, have reverted to the Commission for a reconsideration thereof upon a proper basis. The two permits sustained by the trial court are set aside as invalid, and the cause reversed and remanded to the trial court for such further relief ás may be appropriate; but without prejudice to the rights of appellees to again apply to the Commission for adclitional wells in accord with grounds above stated.

Reversed and remanded.