author:
WALTHALL, Justice. WALTHALL, Justice.
      PRICE, Chief Justice

text:
    WHELAN v. HENDERSON.
    No. 3851.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1939.
    Rehearing Denied Nov. 23, 1939.

      Taylor & Storey and Bramlette, Levy & Dotson, all of Longview, and Banks, Nichols & Prothro, of Marshall, for appellant.
    R. U. Culberson, Moore & Moore, and Weaver Moore, all of Houston, for appellee.
   WALTHALL, Justice.

R. J. Whelan, as plaintiff, brought this suit in trespass to' try title against Mrs. Lizzie Rowell Henderson, defendant, a feme sole, to approximately 32.75 acres of land, a part of the Reuben Bennington Survey, Abstract No. 24, Marion County, Texas. Plaintiff’s petition is in the usual form of suits in trespass to try title. Plaintiff further specially pleads title by the ten and twenty-five years’ statutes of limitation.

Defendant answered by general demurrer, general denial; plea of not guilty, and specially pleaded- title in herself by the three, five, ten and twenty-five years’ statutes of limitation.

■ The case was tried with a jury and submitted on special issues.

The court’s charge submitted the case to the jury substantially in the following order:

Special Issue No. 1 submitted defendant’s (Mrs. Henderson’s) plea on claim under the ten years’ statute of limitation prior to August 30, 1937.

The second issue, No. 2, submitted Mrs. Henderson’s claim to a part of the land under the ten years’ statute of limitation prior to August 30, 1937.

The third issue submitted Mrs. Henderson’s claim to the land under the statute of limitation of twenty-five years prior to August 30, 1937.

The fourth issue submitted to the jury to find whether plaintiff Whelan, the heir of R. W. Rodgers, exercised dominion over the land at any time during the period from August 30, 1912, to August 30, 1937.

The fifth issue submitted to the jury to find whether R. W. Rodgers, or Frances J. Rodgers, as administratrix of the estate of R. W. Rodgers, deceased, executed and delivered to R. E. Rowell a deed to the land in controversy.

The jury found in favor of Mrs. Henderson, and the court rendered judgment that plaintiff take nothing by his suit.

Appellant presents many propositions, but in view of the disposition we think to make of the case we need not consider them, and many of them, if any, may not be presented on another trial.

Appellant, in his motion for a new trial, among other things, alleged misconduct of the jury. The court overruled the motion, to which ruling appellant assigns error.

We have concluded the court was in error in overruling the part of the motion charging misconduct of the jury. The other grounds in the motion we are not considering, and they are not embraced herein.

The matters complaining of misconduct of the jury are embraced in several propositions, and, without stating the propositions, we state in substance the uncontroverted testimony of several of the jurors.

The evidence shows: the jury received the court’s charge about three o’clock in the afternoon and began the consideration of their verdict; either before the jury had considered their answers to any of the issues submitted, or after they had failed to agree on the answer to the first issue, they voted six to five that plaintiff should have the property in the suit; the jury was unable to reach a verdict or answer on any issue during the first afternoon, and stood six to five at the end of the day for plaintiff to have the land; the next morning the jury began the consideration of their verdict, when the foreman of the jury said: “Well, the way I always understood the charge was that if there was any doubt, that it must be given to the defendant, and that was the way the conclusion was finally reached, * * * someone brought that question up and asked it * * * and I just made the remark that that was the way I always understood it to be and that was to give the benefit of •the doubt to the defendant.” That was before-any questions in the court’s charge had been answered; when that statement had been made a vote was taken on-each question separately and voted the verdict as returned. Another juror said: “Somebody (a juror) said, Tf I understand it right,- that in every case you have got to give the defendant the benefit of the doubt,’ and the jury then agreed that that was the proper procedure.” After that statement the juror said he changed his vote on the first issue from no to yes. Other jurors testified to subtantially the same facts as above, that is, they agreed that Mrs. Henderson, being the defendant, the facts against her interest must be established beyond a doubt as in criminal cases, in-' stead of by a preponderance of the evidence. The foreman had so stated the law. The court in the charge had defined the term “preponderance of the evidence.” The evidence is clear that the foreman’s statement of the law and the jury’s concurrence therein prevailed and influenced the vote on every issue. We think it is immaterial that the jury acted in good faith, as undoubtedly they did. The jury must accept the law from the court and be governed by it.

The facts stated evidently show misconduct and controlled the jury’s verdict on every issue.

The rule is clearly stated by Judge Harvey in Walker v. Quanah A. & P. Ry. Co., Tex.Com.App., 58 S.W.2d 4, and by Judge Critz in Bradshaw v. Abrams, Tex.Com. App., 24 S.W.2d 372, 374. In Norris Brothers v. Mattinson, Tex.Civ.App., 118 S.W.2d 460, one of the jurors studied a dictionary in satisfying his own mind in deliberating upon the issue as to whether or not appel■lant failed to keep a proper lookout for his own safety immediately prior to the collision, and studying the dictionary caused him to change his mind in voting upon the issue, and discussed his impressions gotten from the dictionary with the jury.

The Chief Justice concurs and approves of the foregoing, but is of the opinion that other assignments should be discussed, and what follows represents his opinion thereon, in which the -writer concurs.

In view of the fact that this case will be probably tried again we deem it appropriate to notice a few matters that may then arise. Defendant, in her second amended original answer, plead general denial, not guilty, and three, five and ten years’ statutes of' limitation. In paragraph eight plead facts appropriate to plead a defense under Acts of 41st Legislature, Fifth Called Session, c. 30, page 162, as amended Acts 1931, 42nd Legislature, c.169, .page 288. The portion of the act applicable appears in the Cumulative Annual Pocket Part, 1938, of Vernon’s Annotated Revised Civil Statutes. It is there numbered 5519a. Insofar as applicable here, it is as follows: “In all suits involving the title to land not- claimed by the State, if it be shown that those holding the apparent record title thereto have not exercised dominion over such land or have not paid taxes thereon, one or more years during the period of twenty-five years next preceding the filing of such suit and during such period the opposing parties and those whose estate they own are shown to have openly exercised dominion over and asserted claim to same and have paid taxes thereon annually before becoming delinquent for as many as twenty-five years during such period, such facts shall constitute prima facie proof that the title thereto had passed to such persons so exercising dominion over, claiming and paying taxes thereon.”

It will be observed that this statute as against one holding the apparent record title to property to establish prima facie title to the property it is necessary for the claimant to prove by preponderance of the evidence the following facts: (1) That those holding such apparent legal title either have not paid taxes for twenty-five years, or '.have not exercised dominion one or more years during the period of twenty-five years next preceding the filing of the suit; (2) that the claimants, or those whose estate they own, have openly exercised dominion over and asserted claim to same and have paid taxes thereon annually before becoming delinquent for as many as twenty-five years during such a period. The twenty-five years, of course, elapsing next preceding the filing of the suit. The first requirement involves the proving of one or the other of the two negative alternatives.

Under number two the claimant must establish the following affirmative facts con-junctively: (a) claimants and those under whom they claim have openly exercised dominion over, (b) and asserted claim to same, (c) and have paid taxes thereon annually before becoming delinquent for the entire twenty-five years. The failure to establish any one of the facts listed under subdivisions a, b and c is fatal to the claim.

■ The compliance with all the burdens of both subdivisions one and two destroys the prima facie effect of the opponent’s apparent record title and shifts the burden of proceeding with the evidence to the holder of such apparent record title to show that his title has not legally passed to others.

Special Issue No. 4 was as follows: “Do you find from a preponderance of the evidence that Robert J. Whelan, or any of the heirs of R. W. Rodgers, exercised dominion over the land in controversy at any time during the period from August 30, 1912 to August 30, 1937.”

Plaintiff objected to such issue on the ground that it improperly placed the burden of proof on the plaintiff. The burden was on the defendant to show by a preponderance of the evidence that the holder of the legal title had not exercised dominion over the land for any one year of the period of twenty-five years, or, in the alternative, had not paid the taxes as provided in the statute. If either one or the other of these alternatives was established by the undisputed evidence, then, and in that event, the issue was immaterial. It is suggested that on the next trial if the issue is raised by the evidence, that the issue be reformed so as to properly place the burden of proof on the defendant.

Exception was also taken by plaintiff to the court’s failure to give a definition of the word “dominion.” In our opinion, this objection was well taken. Dominion has a distinctive legal meaning. No one, for, instance, would question the necessity of defining “adverse possession” in a special issue submission. The meaning of dominion was discussed by the Supreme Court in two cases. Coles v. Parry, 7 Tex. 109, and Baker v. Westcott, 73 Tex. 129, 11 S.W. 157. 1 Bouv. Law Diet., Rawle’s Third Revision, has under the word “dominion” the following: “Ownership or right to property, 2 Bla.Com. 1.” Reference is then made to the word “dominion,” and there appears this definition: “Perfect and complete property or ownership in a thing.”

The true meaning of the word is to be determined to an extent from the context of the statute. We believe as used therein the exercise of dominion might be defined as follows: “The exercise of dominion over land is such open acts and conduct relative thereto as evidence the claim of the right of absolute possession, use and ownership thereof.” This definition is formulated as a suggestion, not as a direction to the trial court.

Special Issue No. 5, and the court’s direc-. tion thereunder, was as follows:

“Do you find from a preponderance of the evidence that R. W. Rodgers or Frances J, Rodgers as administratrix of the estate of R. W. Rodgers, deceased, executed and delivered to R. E. Rowell a deed to the land in controversy ?
“In connection with this issue, you are instructed that you may consider any facts or circumstances in evidence before you which, in your judgment, you deem to be worthy of consideration or weight to show that such deed was executed and has been lost.”

Plaintiff objected to the direction thereunder on the ground same was a general charge and also that it was on the weight of the evidence. The issue submitted the question of the execution and delivery of a deed alone, and not whether one had been executed and lost. In determining this issue the fact of non-production might be a cogent circumstance in showing that same had not been executed and delivered. The direction enlarges the scope of the issue. It is beyond ’question, a comment on the weight of • the evidence. It is likewise a general charge, in that, in effect, it submitted to the jury the question as to the loss of the deed. We do not think, even though the issue be differently framed, the charge should be given in connection therewith. This is not to be construed as a holding that in the case it is improper to give the jury a proper charge as to circumstantial evidence. The question as to the alternative form of the issue will perhaps not arise in another trial.

There is some difficulty in determining whether the special charges Requested by defendant should not have been given, or some of them at least. All title Mrs. Henderson had to the .land was’derived from her father or the devisees, of her father or their heirs, excluding, however, from this statement any title she acquired from her own adverse possession and confining same, of course, to the land west of the road. The evidence fails to establish adverse possession of the land by her father west of the road. If adverse possession is shown by the evidence, it did not commence until 1901 or shortly prior thereto. In 1901 the partition deed was made partitioning the property of Robert E. Rowell between defendant and her co-devisees.

We are inclined to the view that Special Issue No. 1 should have been given, wherein it was sought to have submitted as to whether defendant made continuous claim to the land west of the road.

The assignments as to the admission of evidence present no error.

The assignments of error as to the sufficiency of the evidence are overruled with this statement relative thereto, that the evidence is not so clear and undisputed as would justify reversal and rendition of the judgment rendered in favor of- plaintiff to the Rodgers’ land west of the road.’ On another trial the evidence may be different.

The case is reversed and remanded.

On Motion for Rehearing.

WALTHALL, Justice.

On considering appellee’s motion for rehearing we have concluded to write more fully on the question of the misconduct of the jury than we did in the main opinion.

The question presented is, to us, not easy of solution. We have found no case which we consider as fully. deciding the point at issue. As said by Judge Ryan, of the Commission of Appeals, in McClintic et al. v. Young Corporation, 66 S.W.2d 676, 678, “The object of every trial is to give the parties a fair hearing according to the facts and circumstances properly before the jury.”

We have sufficiently stated the facts in the opinion.

Here the jury went outside the record and adopted a statement of the foreman, controlling in its effects, wrong in theory and in the law given them in the charge by the court for their guidance in finding the facts upon which the judgment of the court must be based.

We recognize the rule laid down by the courts in other matters pertaining to the trial of cases, such as in argument of counsel, that a statement made, strictly speaking, may be outside the record, yet it does not necessarily constitute reversible error or the basis for valid objection, if the statement relates to a matter of common knowledge, Traders & General Ins. Co. v. Peterson, Tex.Civ.App., 87 S.W.2d 322; Ford Motor Co. v. Whitt, Tex.Civ.App., 81 S.W. 2d 1032; or a matter judicially known, Winnsboro Cotton Co. v. Carson, Tex.Civ. App., 185 S.W. 1002; or, as the rule has been expressed, if the statement relates to a subject as well known to the average juror as the Ten Commandments. Such statements, while regarded as improper, are not reversible errors. Improper matters happening may be withdrawn, or the court may direct that no consideration be given to it.'

The sanctity of the juryroom and of jury verdicts, as said in Estep v. Bratton, Tex. Civ.App., 24 S.W.2d 465, and other cases, and referred to in 41 Tex.Jur. p. 836, par. 97, has been the source of much- confusion and troublesome to the courts. From the authorities there referred to is said, “It is, however, agreed that juries must not be permitted to come in contact with any influence outside of the testimony, however subtle and impalpable it may be. They must accept the law from the court and obey its instructions.” It is also there said'that where misconduct is shown, “and there- is reasonable doubt as to the effect,” or, “the decision of any other material issue, the doubt will be resolved against the verdict.” The last quotation is sustained by many cases referred to in- note 6 on page 8337, 41 Tex.Jur. It is there said the verdict will be set aside if there is a reasonable doubt as to-whether a single juror was influenced by the improper conduct. Such is not the rule as to immaterial matters, or where it is shown beyond doubt not to have affected the verdict. In Stepp v. Texas, & Pacific R. Co., 20 S.W.2d 324, by the Beaumont court, in an action by a passenger for damages for wrongful ejection from train, improper argument of one juror during deliberation that if passenger got judgment she would not get anything, since the railroad would appeal and secure a new trial and finally win the case. It was shown that the argument of the juror influenced one juror, and constituted reversible error. Now, where the jury intentionally found an amount beyond that sued for or the evidence showed, the error could be cured by a remit-titur.

In Texas Employers’ Ins. Ass’n v. Henson, Tex.Civ.App., 31 S.W.2d 669, 673, where one juror stated to another his construction of the court’s charge that appellee be given the benefit of the doubt as to the proper answer of the special issues, the Eastland court said: “We do not believe that we can hold, as a matter of law, that the juror’s expressed misconstruction of a court’s charge is misconduct requiring a new trial.”

In Kindle v. Packing Co., Tex.Civ.App., 103 S.W.2d 471, the trial court gave to the jury the definition of proximate cause as applied to a special issue. A juror (Smith) made an argument to the jury on the meaning of the term “proximate cause,” as used in the court’s charge. Smith claimed that proximate cause meant the whole cause; that' he had served on juries, had been around the courthouse and come in contact with that word or-its meaning. The result of Smith’s argument was that some of the jurors changed their vote, and the jury agreed on Smith’s version of the court’s charge. It was held not such act of misconduct as to cause a new trial. It was simply a misconstruction of the court’s charge. We think it apparent that the conduct of the jury in the instant case was an effort of the jury to follow its own method of reasoning rather than failure to properly understand and apply the court’s charge on preponderance of the evidence.

In Green v. Enen, Tex.Civ.App., 270 S. W. 929, 930, in a suit on a note Green pleaded non est factum. One juror, to demonstrate his contention that a man never writes his name the same way twice, proceeded to write his name several times, and wrote other names.. During the argument one juror agreed that when a person put his name on a piece of paper, “he has to pay for it whether he thinks he ought to * * * or not,” and one juror “mentioned something about a note he had to pay.” One of the grounds claiming -misconduct of the jury was, that the statement of the juror “embraced an erroneous view of the law.” In the opinion the San Antonio court said: “They [the jury] are entitled to summon these things to their aid in composing their differences, ■ so long as they do not testify to facts dehors the record, and with assumed authority pronounce specific rules of law in conflict with the law of the case.” . .

Here, the evidence of the jurors shows the jury was not discussing any part of the court’s charge, they were not trying to arrive at the meaning of the “preponderance of the evidence,” but assumed for themselves the rule they adopted and applied in deciding the facts of the case.

The facts, in our opinion, were not decided by the jury by law given them by the court, but by a law of their selection.

The motion is overruled.

PRICE, Chief Justice

(concurring).

In concurring in the overruling of appel-lee’s motion for rehearing, the writer, while not desiring to dissent from the opinion respecting the issue of misconduct of the jury, does not entirely give assent to the views therein expressed. In my opinion the misconduct amounted only to “the jury’s expressed misconstruction of a court’s charge.” Texas Employers’ Ins. Ass’n v. Henson, Tex.Civ.App., 31 S.W.2d 669, 673. However, there is room for a reasonable difference of opinion on the proposition.

The judgment for the defendant for the land west of the road had basis on three findings of the jury: (1) the ten years’ statute of limitation; (2) the twenty-five years’ statute; and (3) the issue as to the lost deed. In regard to the ten years’ statute I believe this court was in error in holding that the trial court should have given the special issue requested by defendant. The matter was perhaps sufficiently submitted in other issues given by the trial court. However, I believe the evidence was insufficient to require the submission of the ten years’ statute to the jury. The evidence was very unsatisfactory as to a continuing, visible appropriation and use of the land for ten consecutive years. The view of the writer is that it was error for the trial court to refuse to set aside this finding on account of the insufficiency of the evidence to sustain same.

With what was said as to manner of the submission of the issue arising out of the twenty-five years’ statute I believe our opinion was- correct.

There is grave doubt in my mind as to the sufficiency of the issue alternatively submitted whether R. W. Rodgers or Frances J. Rodgers, as administratrix, executed and delivered a deed to R. E. Rowell to support a finding in favor of defendant. If evidence there was to support the submission of the issue, it is about as cogent to show that one did so as that the other did so. If the jury found the administratrix did so, the deed, under the evidence, was ineffective to convey. Jobe v. Osborne, 128 Tex. 509, 97 S.W.2d 939; Butler v. Cole, Tex.Com. App., 53 S.W.2d 1010.

In the case of Masterson v. Harris County Houston Ship Channel Nav. Dist., Tex. Com.App., 15 S.W.2d 1011, loc. cit. 1015, 67 A.L.R. 1324, Judge Short gives this rule as a guide for determining the sufficiency of the evidence to sustain the finding of a lost deed: “The true rule would seem to be that if, from all of the facts and circumstances introduced in evidence, it is more reasonably probable that the claim made that a deed was executed, than that it was not, then a jury trying the case, or judge without the jury, would be warranted in presuming in favor of the claimed existence of the deed, and find accordingly.”

This statement is likewise made in that opinion: “In order to raise the issue of the presumption of a grant of the land, the evidence must tend to establish, not only that the person to whom the presumed grant is alleged to have been made asserted title thereto, but that the owner of the alleged previous title had knowledge of and acquiesced in the claim so made. Baldwin v. Goldfrank, 88 Tex. [249], 257, 31 S.W. 1064; Magee v. Paul, 110 Tex. 470, 221 S. W. 254.” (Italics ours.)

The evidence is scant at least that tends to show that R. E. Rowell ever asserted title to the land west of the road. R. E. Rowell was the alleged grantee in the alleged deed.

The charge suggested by the opinion to be upon the weight of the evidence is here repeated: “In connection with this issue, you are instructed that you may consider any facts or circumstances in evidence before you which, in your judgment, you deem to be worthy of consideration or weight .to show that such deed was executed and has been lost.”

It will be noted that the jury were instructed they might consider evidence to show that such deed was executed. It was not phrased to show “whether or not such deed was executed.” In a way it assumes there was such a deed. There may have been certain cogent circumstances to show that such deed was executed and delivered to R. E. Rowell. Certainly there were many cogent and relative facts and circumstances in evidence to show that it was not so executed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    THOMPSON et al. v. CORBIN et ux.
    No. 5396.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1940.
    Rehearing Denied Feb. 22, 1940.
    Butler & Price, of Tyler, and E, H. Las-seter, of Henderson, for appellants.
    Brachfield & Wolfe, of Henderson, and W. H. Sanford and Conan Cantwell, both of Dallas, for appellees.
   WILLIAMS, Justice.

This suit is grounded upon an alleged partnership or joint adventure, and involves certain mineral interests acquired respectively by plaintiffs, W. D. Corbin and wife, Martha, and C. L. Thompson, a defendant, in pursuance'to an alleged agreement entered into on or about January 1, 1932, in which each would and did use his best efforts and endeavor to acquire mineral interests in the- East Texas oil field. During 1932 and prior to December 7th, plaintiffs in the course of . their operations acquired mineral interests in lands in the area. Title to same was taken in the name of plaintiffs. Prior to suit plaintiffs had developed a part of their acquisitions into oil-producing property. During the same period defendant Thompson also acquired mineral interests in the same area. Title to the property so acquired by him was taken in the name of C. L. Thompson and R. W. Fair. Prior to suit some of this property had also been developed into oil-producing property. On December 7, 1932, a charter was filed with the secretary of state which created Fair & Thompson Corporation. The mineral interests so acquired in the name of C. L. Thompson and R. W. Fair, including the oil-producing property, were listed, described and valued as part of the assets of the corporation. According to the affidavit, dated Nov. 22, 1932, filed with the charter, C. L. Thompson and wife, R. W. Fair and -wife, and one Smith were named as the incorpora-tors and directors, with Fair its president, Thompson, vice-president, and Smith, secretary. This listed Fair as a subscriber to $49,800 of the stock, Thompson to $49,900, and Mrs. Fair, Mrs. Thompson and Smith each $100.

Plaintiffs in their 4th amended original petition detailed and described the properties still held by them, the properties so acquired in the name of C. L. Thompson and R. W. Fair, and the respective oil-producing leaseholds, and alleged that ⅝ of the acquired interest'in each parcel was assets of and belonged to the partnership of plaintiffs and defendant Thompson. Fair &. Thompson Corporation was made a party defendant. Plaintiffs alleged that this corporation had full notice of the rights of plaintiffs at .the time it is purported to have acquired title; that Thompson had excluded them from the management and control of the properties acquired by him; and had refused to recognize their interest in same or to render an accounting. Plaintiffs sought a determination of their interest in all the properties hereinbefore mentioned, a dissolution of the partnership, an accounting, partition in kind or by sale, and general relief.

Defendants .Thompson and the Corporation filed a joint answer in which they urged a general demurrer and special exceptions, a general denial, a verified denial of partnership,' and a plea of not guilty. Defendants further jointly answered in their third amended original answer that if a partnership agreement had been entered, which was denied, plaintiffs by their acts and deeds had repudiated and abandoned such alleged partnership agreement, in that plaintiffs had sold and assigned to others certain mineral interests which plaintiffs had acquired in their name. And that they were now estopped from asserting that such alleged agreement still continues as to any interest acquired by any of the litigants in 1932. The jury found in response to special issues Nos. 10, 11 and 12, that defendant Thompson had agreed to the assignments of the mineral interests which plaintiffs had made to these other persons. As no proposition or assignment attacks these findings, .the defense of abandonment and estoppel will not be further noticed.

Defendants’ propositions Nos. 1 to 5, inclusive, are directed to the sufficiency of plaintiffs’ pleadings (1) to aver a partnership or joint adventure agreement between plaintiffs and defendant Thompson; (2) to impress a trust in favor of plaintiffs in and to the mineral interests acquired by defendant Thompson. That part of the petition pertinent here reads:

“That * * *' On or about the first day of January, 1932, the plaintiffs and the defendant, C. L. Thompson, associated themselves together for the purpose of engaging in the oil business in * * * the East Texas oil field * * * and for the purpose of acquiring, developing, operating, selling and dealing in * * * mineral interests in said locality, and said plaintiffs and said defendant, C. L. Thompson, then agreed that during the continuance of such association that the plaintiffs, * * * and the defendant, C. L. Thompson, would each use their best efforts and endeavor to acquire interest in * * * mineral interests in said locality, and agreed that during the continuance of such association they would be partners in the ownership of all such * * * mineral interests acquired by them or either of them, the plaintiffs, W, D. Corbin and Martha A. Corbin, owning a one-half interest in such partnership and properties, and the defendant, C. L. Thompson, owning a one-half interest therein; and they then and there agreed that any and all such properties acquired by either of said parties during the continuance of such association should belong to said partnership and be owned by all of said parties in the foregoing proportions regardless of whose name the title should be acquired in. That said association continued during the whole of the year 1932 and as to the properties so acquired during such time, which are hereinafter described, it still continues.

“That during said year 1932 there were acquired by said parties, under the arrangement aforesaid and subject thereto, the following properties. * * *

“Regardless of whether the term partnership is applied to the relation of the parties under the facts alleged above (and such are here again alleged and repeated) one-half of the interest acquired by the defendant Thompson in the properties herein described and referred to, were acquired by him in trust for the plaintiffs herein under the agreement above alleged to jointly acquire lands or an interest in land.”

Under propositions 1 and 2 defendants assert the pleading is wholly insufficient to allege the formation of a valid partnership, “in that there are no allegations in said petition that they united or pooled their labor, property, money or skill, or either of them in said partnership;” and further, “the alleged agreement of the parties to use their best efforts and endeavor to acquire mineral interests is too vague and uncertain as a basis for the formation of a valid partnership agreement.” According to the pleadings, the consideration for the alleged partnership enterprise and the acquisition of the properties involved consisted of their mutual promises to use their best efforts and endeavor to acquire same, and the performance of such promises. The- word "endeavor” means “to exert physical and intellectual strength toward the attainment of an object; a systematic or continuous effort.” Webster’s New International Dictionary. The mutual promises of the parties to a joint adventure are' a sufficient consideration to support their contract. Miller v. Walser, 42 Nev. 497, 181 P. 437, 441; 33 Cor.Jur. 848, § 20; 42 Tex.Jur. 609; James v. Fulcrod, 5 Tex. 512, 519, 55 Am.Dec. 743. The trial court did not err in overruling said exceptions. See, also, Allison v. Campbell, 117 Tex. 277, 298 S.W. 523, 1 S.W.2d 866; Rische v. Rische, 46 Tex.Civ.App. 23, 101 S.W. 849; Anderson v. Blair, 202 Ala. 209, 80 So. 31, 35; Goss v. Lanin, 170 Iowa 57, 152 N.W. 43; Hoge v. George, 27 Wyo. 423, 200 P. 96, 99, 18 A.L.R. 469.

. Defendants’ 3rd, 4th and 5th propositions are grounded upon a special exception that “there are no allegations sufficient to impress a trust in favor of plaintiffs” in and to any of the mineral interests acquired by Thompson. It is to be observed from the pleadings that the consideration for the agreement consisted of the mutual promises above discussed. It is further alleged that the interests here involved were acquired under said agreement or arrangement and subject thereto. If so, the mutual promises and their execution entered into the consideration at the time the properties were acquired. Their joint undertakings were to be confined to operations in mineral interests and restricted to an area known as the East Texas oil field. We need not determine if the petition alleges an express or an implied trust or a combination of both. Litigation arising out of similar joint adventure or partnership undertakings as we have here, have heretofore been recognized and sustained by our courts adversely to defendants’ contention. James v. Fulcrod, supra; Gardner v. Randell, 70 Tex. 453, 7 S.W. 781; Miller v. Walser, supra; Hoge v. George, supra; Lanier v. Looney, Tex.Civ.App., 2 S.W.2d 347, 350; Grennan v. Forgeron, Tex.Civ.App., 101 S.W.2d 885; Smith v. Kendrick, Tex.Civ. App., 55 S.W.2d 598; Schultz v. Scott, Tex.Civ.App., 210 S.W. 830; Cassidy v. Hornor, 86 Okl. 220, 208 P. 775; Crutcher v. Sligar, Tex.Civ.App., 224 S.W. 227; Pershing v. Henry, Tex.Civ.App., 236 S. W. 213; Lind v. Webber, 36 Nev. 623, 134 P. 461, 50 L.R.A.,N.S., 1046, Ann.Cas. 1916A, 1202.

Special issue No. 1, answered “Yes” by the jury, reads: ' “Do 'you find from a preponderance of the ■ evidence that the plaintiffs, W. D. Corbin and Martha A. Corbin, and the defendant, C. L. Thompson, entered into an agreement on or about January 1, 1932, whereby the plaintiffs, W. D. Corbin and Martha A. Corbin, and the defendant C. L. Thompson, would each use their best efforts and endeavor to acquire interests 'in oil and gas leases and mineral interests in the East Texas Field, and that during the continuance of such association all such properties acquired by either the plaintiffs or the defendant, C. L. Thompson, should be owned one-half by the plaintiffs, W. D. Corbin and Martha A. Corbin, and one-half by the defendant, C. L. Thompson?”

In answer to special issue No. 2, the jury found that the plaintiffs “after said agreement was made used their best efforts and endeavor to acquire * * * mineral interests in the East Texas Field.” In response to No. 3, the jury found that plaintiffs paid a part “of the expenses incurred by Thompson in acquiring * * * mineral interests during the year 1932.” Special issues Nos. 4, 5, 6, 7 and 8 dealt with respective mineral interests which had been acquired in the name of R. W. Fair and C. L. Thompson. In response to each of these the jury found that defendant Thompson acquired his interest during the existence of the agreement between plaintiffs and defendant Thompson. As these findings are not attacked, no useful purpose will be served in detailing the conduct, various dealing, contacts, assertions and denials of plaintiffs and Thompson. This suit was filed in October 1933, and trial had in 1937. The oil runs and drilling expenses incident to the respective leasehold operations and costs and profits applicable to the various transactions from January, 1932, to date of trial were detailed in the accountings and audits furnished by litigants.

Based upon the foregoing findings of fact and computation of receipts and expenditures, the court found that plaintiffs were entitled to recover of Thompson $20,-462.42; decreed the mineral interest held in the name of plaintiffs and one-half of the mineral interests acquired in the name of C. L. Thompson and R. W. Fair to be the property and assets of the partnership of Corbin and Thompson; awarded plaintiffs a recovery of title to ½ of same, that is, a ⅛ interest in the properties held in the name of plaintiffs and ⅛ of the interest in the properties acquired by Fair and Thompson as against Thompson and the Corporation. No debts were found to be due to any third party. The alleged partnership was dissolved. The decree provides for collection of the money award and the disposition and sale of the respective interest in the various holdings so as not to interfere with the operations of the Corporation.

No error is assigned in either brief or motion for new trial to support proposition No. 6. Propositions Nos. 7, 8 and 9 present certain abstract statements of what defendants conceive to be the law applicable to the case. Plaintiffs challenge the authority of the court to consider same. Propositions 7, 8 and 9 are not supported by any assignment of error, unless these be considered under the assigned error that the court refused to instruct the jury to return a verdict for the defendant Corporation. Under the holding in Stillman v. Kirsch, 128 Tex. 359, 99 S.W.2d 270, and Central Power & Light Co. v. Heder, Tex.Civ.App., 133 S.W.2d 795, this record will be reviewed for fundamental error, which will include the refusal of the court to instruct a verdict for the Corporation and, incidentally, the abstract statements of law presented in these propositions.

It is to be observed that the suit was prosecuted against Thompson, and Fair & Thompson Corporation. This suit was not brought against any partnership of Fair and Thompson. The petition does not allege any such partnership ever existed. The decree dissolves no such partnership. None of the various provisions in the unusually lengthy decree are attacked. No proposition or assignment of error attacks any item of expense or expenditure considered by the court in awarding the money judgment. If this Corporation had pleaded that it was a purchaser for valuable consideration without notice, which it did not, such was not proven. There is no evidence that Thompson ever executed a deed or deeds which purported to convey the legal title or any interest in the properties here in controversy to the Corporation. No contention is made that such a deed was executed by him. There is no evidence that any certificates of stock were issued by the Corporation. 66 C.J. p. 1108. The charter of the Corporation did list as assets of the Corporation certain mineral interests by referring to certain leasehold acreage in certain surveys. Conceding the' references therein stated to be sufficient to identify the property in controversy, the charter of the Corporation did not constitute a conveyance. Dawson v. McLeary, 87 Tex. 524, 29 S.W. 1044; Carothers v. Alexander, 74 Tex. 309, 12 S.W. 4. The “protection given to purchasers for valuable consideration without notice, extends only to cases where they have taken a conveyance, or, in other words, where they have purchased the legal title.” York’s Adm’r v. McNutt, 16 Tex. 13, 67 Am.Dec. 607; Nicholson v. C. C. Slaughter Co. Tex.Civ.App., 217 S.W. 716; Slaughter v. Coke County, 34 Tex. Civ.App. 598, 79 S.W. 863.

The submission of special issue No. 3 and the jury’s finding thereon do not present fundamental error. The other findings will support the judgment.

The judgment of the' trial court is affirmed.


author: MURRAY, Justice.

text:
    HIDALGO COUNTY BANK & TRUST CO. v. GOODWIN.
    No. 10668.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearings Denied Feb. 28, 1940.

      James H. Anderson and Fred E. Bennett, both of Mercedes, and B. D. Kimbrough, of McAllen, for appellant.
    P. G. Greenwood, of Harlingen, for ap-pellee.
   MURRAY, Justice.

This suit was instituted in the District Court of Hidalgo County, 92nd Judicial District, by Helen Barton Goodwin against Hidalgo County Bank & Trust Company, seeking the cancellation and rescission for alleged fraudulent misrepresentations and nondisclosure of the true facts, growing out of the alleged lending of Mrs. Goodwin’s money by said Bank, acting through its president, N. P. Barton.

The trial began as a trial to a jury but at the close of the evidence, both parties having made motions for instructed verdict, the trial court overruled the one made by the Bank and granted the one made by Mrs. Goodwin. Judgment was rendered and entered, in keeping with such instructed verdict, in favor of Mrs. Goodwin and against the defendant, Hidalgo County Bank and Trust 'Company, rescinding and cancelling two loans, one made to Frank Dawson and the other to Ernest G. H. Schrank, each loan being for the sum of $4,000, giving Mrs. Goodwin judgment for the original funds loaned, together with interest at the rate of 6%, and decreeing to the Bank the property securing the loans.

From this judgment the Hidalgo County Bank and Trust Company has prosecuted this appeal.

It is a familiar rule of law that in appeals from judgments based upon instructed verdicts the court is required to disregard evidence on behalf of the successful party and to look only to evidence adduced on behalf of the unsuccessful party, to determine the sufficiency of the evidence to take the case to the jury. Alexander Co. v. First Nat. Bank of LaGrange, Tex. Civ.App., 119 S.W.2d 718. Neither is this rule abrogated by the fact that both of the parties at the close of the evidence made motions for instructed verdicts. Alexander Co. v. First National Bank of LaGrange, supra.

We are of the opinion that appellee, Mrs. Goodwin, did not establish her cause by the undisputed evidence, but, on the contrary, the evidence was conflicting and the cause should have been submitted to the jury.

It will be borne in mind that this is a suit against the Bank and it alone, neither N. P. Barton nor his estate was made a party, yet the evidence leaves considerable doubt as to whether or not N. P. Barton was acting individually ■ or for the Bank when he negotiated the loans complained of by appellee. 'The record shows that Mrs. Goodwin, at the time the loans were made, was a resident of England. W. A. McNeil, a former president of the Bank, had made loans for her, not as a representative of the Bank but as her individual agent. McNeil was Mrs. Goodwin’s step-father. After McNeil’s death N. P. Barton became president of the appellant Bank and continued to make loans for Mrs. Goodwin in the same manner they had theretofore been made by McNeil, except that the notes and mortgages were taken in the name of the Bank and then transferred to appellee, in order to make it difficult for. some tax assessor to find and assess Mrs. Goodwin’s property. Mrs. Goodwin had about $16,000 in a checking account at the Bank, on which it paid her 6% interest, computed on average daily balances. When a loan was made the money would be withdrawn from this account upon a check signed, “Helen Barton Goodwin by N. P. Barton.” N. P. Bar-tjon was also related to Mrs. Goodwin, being her first cousin.

N. P. Barton’s authority, or the Bank’s authority, as the case may be, was derived from an acceptance of a proposition made in the following language, contained ■ in a letter written upon the stationery of the Bank addressed to “Dear Helen,” subscribed in type by the scrivener, “Sincerely yours, N. P. Barton,” and in handwriting, “Norwood,” to-wit: “Going a little further into your business, would like to know if you would care for us to reinvest some of your funds at a satisfactory return, not less than 8%. Please advise on this point when returning the papers, so that we can be on the lookout for something that would he suitable and safe.”

This inquiry was evidently answered in the affirmative. It will be noted that the letter is not signed officially as a letter of the Bank, and at best leaves it in doubt whether Barton is to act as her agent or trustee, individually, or whether the Bank is to do so.

It is clear that Mrs. Goodwin, having deposited her money in the Bank, not as a special deposit but as a general deposit subject to her check, receiving 6% interest on her daily balance with the Bank, lost both the equitable and legal title to her money, and established thereby between herself and the Bank the relation of debtor and creditor for the amount of her deposit. The money could not become a trust fund and a deposit at one and the same time. A trust fund exists where the equitable title of the funds is in the owner and the legal title in the trustee. Where money is deposited in a bank subject to the check of the depositor, both the legal and equitable title of the money passes to the bank and the relation of debtor and creditor is established between the depositor of the money and the bank. Therefore, the fact that Mrs. Goodwin’s money was on deposit with the Bank refutes rather than established the relation of trustee and cestui que trust. 6 Tex.Jur. p. 225, §§ 95 et seq.; Rose v. First State Bank, Tex.Civ.App., 38 S.W.2d 863; City Nat. Bank v. Gustavus, 130 Tex. 83, 106 S.W.2d 262; Smith v. Burns, Tex.Civ.App., 107 S.W.2d 397; Tyler County State Bank v. Rhodes, Tex.Civ. App., 256 S.W. 947.

The burden of proof was upon appellee to establish the existence of the alleged trust between the Bank and herself and the evidence was not so conclusive upon this question as to authorize the court to determine this matter, as a question of law, but should have submitted the issue to the jury.

We conclude that the fact the evidence shows the notes and deeds of trust involved herein were taken .in the name of the Bank for the purpose of assisting ap-pellee in avoiding a property tax, was only incidental to the main transaction and would not render the entire transaction an illegal one. However, it does tend to refute the idea that the notes and mortgages were taken in the name of the Bank because, as contended by appellee, the Bank was the real trustee.

The record shows that the loans complained of herein were made in 1928, and that some of the alleged fraudulent conduct was discovered, or at least brought to the attention of appellee, more than four years before she instituted this suit. By granting her motion for an instructed verdict it is clear that the trial court determined all questions of limitation as a matter of law. It seems that the trial judge applied the rule that limitation does not start to run until the trust has been repudiated in suits brought to enforce a trust or to recover trust funds or property held in trust. The suit at bar is not such a suit, it is rather one to recover damages for a breach of trust. N. P. Barton or the Bank, as the case may be, had full power to make loans without first securing Mrs. Goodwin’s approval of the loan. His letters were simply reports of what had been done, rather than a request for authority to make such loans. Under such circumstances the cause of action accrues when the wrongful act or acts are committed, and limitation would commence to run from the time the breach of trust was discovered or would have been discovered by the use of ordinary diligence. Kennedy v. Briere, 45 Tex. 305; Powers v. Schubert, Tex.Civ.App., 220 S.W. 120.

Appellee alleges that appellant was negligent in failing to keep the property insured against storm damage, and in failing to advise her as to the nature and extent of the storm damage to the property securing the Schrank loan. There is evidence tending to show that these matters were discovered long before she filed suit. This certainly raised a question of limitation which should have been submitted to the jury. Arts. 5526 and 5529, R.C.S.1925: 42 Tex.Jur. 746, § 127; Bass v. James, 83 Tex. 110, 18 S.W. 336; O’Conner v. Koch, 9 Tex.Civ.App. 586, 29 S.W. 400; Citizens' National Bank v. Good Roads Gravel Co., Tex.Civ.App., 236 S.W. 153; First State Bank v. Visart, Tex.Civ.App., 259 S.W. 987; Kennedy v. Briere, supra; Kennedy v. Baker, 59 Tex. 150; Sam v. Ludtke, Tex. Civ.App., 203 S.W. 98; Dean v. Dean, Tex. Civ.App., 214 S.W. 505; Powers v. Schubert, Tex.Civ.App., 220 S.W. 120; McDonald v. Ayres, Tex.Civ.App., 269 S.W. 1105; Ray v. Barrington, Tex.Civ.App., 297 S.W. 781; Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807; A1 Parker Securities Co. v. Owen, Tex.Com.App., 1 S.W.2d 271; Costley v. Gracy, Tex.Civ.App., 52 S.W.2d 920; Ebberts v. McLean, Tex.Civ.App., 68 S.W. 2d 1077, affirmed, 128 Tex. 573, 98 S.W.2d 352; Atkins v. Dodds, Tex.Civ.App., 121 S.W.2d 1010.

The judgment is reversed and the cause remanded.


author: BLAIR, Justice.

text:
    ROBIN v. ELY & WALKER DRY GOODS CO.
    No. 8874.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1940.
    Rebearing Denied Feb. 28, 1940.

      Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    Robert T. Neill, of San Angelo, for ap-pellee.
   BLAIR, Justice.

Appellee, Ely & Walker Dry Goods Company, a Missouri corporation, sued appellant, Max Robin, upon a sworn account for $6,169.12, with legal interest from September 22, 1935, being the balance due on goods, wares and merchandise sold him during the months of June, July and August, 1935. Appellant plead the two year statute of limitation (Art. 5526), in bar of the cause of action. Appellee replied that appellant was without the limits of the state from about October 25, 1936, to about June 25, 1937, during which time the statute of limitation did not run under the terms of Art. 5537, which reads as follows : “If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person’s absence shall not be accounted or taken as a part of the time limited by any provision of this title.”

Appellant replied that it is true that he was without the limits of the State between said dates, but that said fact did not toll the running of the statute of limitation, because his absence was wholly involuntary and was due to the fact that he had been convicted of violating the United States penal laws relating to the concealment of property by a bankrupt, and as punishment was sentenced to serve one year and one day in the federal prison át El Reno, Oklahoma; and that the federal marshal under a proper commitment bodily transferred him from Texas to El. Reno, Oklahoma, without his consent and in pursuance of the sentence of the federal court. Appellant alleged that the judge trying and convicting him could have sentenced him to serve said sentence within the limits of the State of Texas, and that to deny him the benefit of the laws of limitation because of the aforesaid facts would violate both the Texas and the United States constitutions, in that it deprives him of equal protection of the laws; forces penalties upon him not provided for either by the laws of Texas or of the United States; deprives him of his property without due process of law; inflicts upon him cruel, inhuman, and unusual punishment; subjects him to penalties and punishment not uniformly followed as the result of his conviction, but resulting from the action of the judge in designating the particular penal institution in which he was to serve his sentence, which action of the judge was in no manner connected with the severity of the punishment and did not anticipate nor contemplate any loss of civil rights of appellant which did not necessarily follow from the sentence imposed; and that denial of the right of appellant to plead limitation under the particular facts results iñ a violation of his constitutional rights aforementioned, and particularly Sec. 20 of Art. 1 of the Constitution of Texas, Vernon’s Ann.St., which provides that: “No citizen shall be outlawed, nor shall any person be transported out of the State for any offence committed within the same.”

These contentions were overruled by the trial judge, and judgment was rendered for appellee as prayed; hence this appeal, in which appellant presents one proposition, as follows: “Since the absence of appellant from the State of Texas was not a voluntary absence, and since such absence resulted from his being forcibly transported without the State and confined in a penal institution of the United States Government during the period of his absence, and since such transportation to and incarceration in a penal institution in the State of Oklahoma (as distinguished from a penal institution within the limits of the State of Texas) in fact constituted no part of his sentence for crime, and since the 'decision of the sentencing judge to confine him in an institution located in Oklahoma rather than in one located in Texas, was not to any extent a determination of the degree of punishment he should suffer and was made wholly. without regard to any effect the place of confinement possibly may have had upon any of his civil rights, it was error for the lower court to hold that the statutes of limitations did not continue to run during the time he was confined at El Reno.”

The question presented is novel. Neither party has cited any authority directly in point, and we have found none which ■ivould sustain the contention of appellant. Stripped down his contention seems to be that although he was legally convicted in a federal court for an offense in violation of the federal laws, and legally imprisoned in another state, the federal court trying him did so “wholly without regard to any effect the place of confinement possibly may have upon any of his civil rights” as a citizen of Texas; and in consequence his absence from the State was involuntary, and he could not thus be deprived of such rights, and that to do so would deprive him of the protection of the aforementioned provisions of the state and federal constitutions. -

Manifestly, the federal court trying appellant for an offense against the federal laws did not have to take into consideration the provision of the Texas limitation statute which provides that absence from the State shall not be computed in determining the period or time of the running of the limitation statute, in connection with the place of his confinement in a federal prison in another state than the one in which the crime was committed. The jurisdiction of the two sovereignties is separate and distinct, and the State could not control the United States in the enforcement of its penal laws, because its jurisdiction is supreme in such matters, and its laws specifically provide for the trial of offenders against the bankruptcy laws, and for their imprisonment at any place which the federal court and the United States Attorney General may designate. Clause 2, Art. 6, United States Constitution; Charles Ponzi v. Franklin G. Fessenden, Master of House of Correction, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879; Sec. 8, Sub.Sec. 4, Art. 1, United States Constitution; and Art. 753f, Title 18, Criminal Code United States Code Annotated. In this connection, it may be observed that appellant states that the federal court trying him could have sentenced him to serve his time in prison within this State. We do not here undertake to determine the question of whether one convicted of a crime for a federal offense in a federal court may have the right to have the court determine the place of his imprisonment with respect to his civil rights as a citizen of the State in or from which he was convicted, or may have committed the crime; but if such question were presented to the federal court trying him, it would be one which would in all probability address itself to the sound discretion of the court and officials charged with the duty of designating the place of confinement. If appellant had such right and did not invoke it at the time of his trial, he certainly cannot now assert in this case that he has been involuntarily taken without the limits of this State in violation of any of his rights either under the Texas laws or the laws of the United States.

Moreover, appellant by his own conduct violated the laws of his government and in consequence was legally convicted and imprisoned in another state, and we find no law whereby he can assert that he had been involuntarily taken without the limits of his state. He voluntarily and deliberately brought about his own absence from the State by vidlating the laws of his nation, and he is certainly not in a position to assert that his absence was involuntary. A more equitable and moral claim of involuntary absence as not tolling a statute of limitation was denied in the case of Fitch and Henderson v. Boyer, 51 Tex. 336. The suit was one in trespass to try title brought by Boyer. Fitch urged the defense of limitation, but the necessary time of possession had been broken by his absence. He contended that he had been driven from the land by hostile Indians; that at the time he left the premises he intended to return; and that he did return as soon as it was safe for him to do so. Thus he sought to invoke the time of his involuntary absence as not interrupting the running of the statute of limitation. The court held that his absence availed him nothing. Manifestly appellant is not in as good a position as Fitch was, because he voluntarily committed a crime and was legally convicted and imprisoned in another state.

The Texas constitutional provision that “no citizen shall be outlawed, nor shall any person be transported out of the State for any offence committed within the [State],” has reference only to an offense against the constitution or laws of this State. This provision of the Texas constitution could not control the government of the United States in the enforcement of its penal laws, because as above pointed out, its laws and jurisdiction under the provisions of Clause 2, Art. 6 of the United States constitution are superior to the laws of this State with respect to the matter of bankruptcy laws. We see no possible relation of this provision of the Texas constitution to the question here presented, which merely involves and is controlled by the proper interpretation of Art. 5537, above quoted, to determine when a debtor is absent from or “without the limits of "this State” so as to toll the running of the statute of limitation during his absence. It is manifest that the statute was enacted primarily for the benefit of the creditor and not the debtor. The saving of the statute is only as to the case of a defendant who is without the limits of the State, and it contains no saving in favor of the plaintiff who is without the limits of the State. Maverick v. Salinas, 15 Tex. 57. The statute is plain and unambiguous, and has no saving clause as to any sort or character of absence of the defendant which would toll the running of the statute of limitation as to him during his absence from the State; and the courts are not authorized to read into the statute any sort or character of absence of the defendant as would not toll the running of the statute during his absence from the State. It has been repeatedly held that absence of a debtor from the State through business or pleasure will toll the statute of limitation during his absence in behalf of the creditor, and that “the object, policy, and meaning of the provision under consideration are, that to render the bar effectual the debtor must remain in the state for the full period of time described by law.” 28 Tex.Jur. 233, § 134; Watkins v. Junker, Tex.Sup., 19 S.W. 390; Fisher v. Phelps, Dodge & Co., 21 Tex. 551; Koethe v. Huggins, Tex.Civ.App., 271 S.W. 143. The legislature did not see fit to provide in this statute that a debtor who has violated the laws of the federal government and in consequence has been legally convicted and imprisoned in another state would be entitled to have the statute of limitation continue to run against his debts during his confinement in prison in another state. No doubt, the legislature would not enact such a statute in behalf of one who does not merit such consideration. The statutory-right to plead lapse of time instead of payment of debt is merely a statutory right or privilege which the debtor may avail himself of or not as he pleases; and certainly a debtor seeking to avail himself of this statutory right must show that his asserted right is within the scope of the specific language of the statute. It has been held by our courts since the earliest time that as little latitude should be left in a limitation statute as is possible -to construction; and that “exceptions which are to be made to the operation of the statute, should be specified and defined by, the legislative will, and not entrusted to the uncertain powers of construction.” DeCordova v. City of Galveston, 4 Tex. 470.

The judgment of the trial court will be affirmed.

Affirmed.


author: HALL, Justice.

text:
    CROCKETT v. DIFFIE et al.
    No. 5736.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 9, 1940.
    Rehearing Denied Feb. 29, 1940.

      Grisham & Grisham, of Tyler, for appellant.
    J. M. Deavenport and John W. Ford, both of Kilgore, and Aubrey A. Wilson, of Gladewater, for appellees.
   HALL, Justice.

On April 11, 1938, W. R. Skeen filed suit in the District Court of Gregg County against Yandell Rogers, Rozel Oil Corporation, Mar-Tex Oil Corporation, Eddie Markham, and several other parties not necessary to mention, for title to the oil and gas leasehold estate in and to a tract of land located in Gregg County, known as the Still tract, and being the same ⅞ oil and gas leasehold interest conveyed by Yandell Rogers and Rozel Oil Corporation to Mar-Tex Oil Corporation, for which, as part of the consideration, the Mar-Tex notes were given. These are the same notes involved in a cause styled C. W. Crockett v. Yandell Rogers et al., appeal from Smith County, this day decided. Skeen also sought the appointment of a receiver to • take charge of this leasehold.

We deem it unnecessary to state with particularity the allegations contained in the suit of Skeen, for the reason that it is not necessary to a. disposition of this case. On September 23, 1938, W. E. Brown, H. A. Diffie, and H. I. Shanks as Trustees for Southwestern Investment Company, intervened, alleging that they owned note No. 9 of the Mar-Tex series; that default in payment thereof had been made, seeking foreclosure of their lien on the Still lease, and also asking appointment of a receiver to take charge of said oil and gas leasehold. No action seems to have been taken by the court below upon these applications until November 26, 1938, at which time S. L. Vernon was appointed receiver. On the same day the receiver made bond and took oath. On July 21, 1939, the receiver made application for permission to pay certain claims which had theretofore been adjudicated and classified by the District Court of Smith County in, the case of Crockett v. Yandell Rogers,’ referred to above. This application was granted. On August 7, 1939, the court below made the restraining order, granted at the time the receiver was appointed, a temporary injunction against C. W. Crockett, R. N. Grisham and J. S. Grisham. On August 14, 1939, upon motion of R. N. Grisham, the court vacated said receivership and dissolved the temporary injunction. On the same day, August 14th, Diffie, Brown, and Shanks, Trustees of Southwestern Investment Company, filed their third amended petition in interven'tion, in which they again sought- appointment of a receiver to take charge of this oil and gas leasehold, and as a basis for the appointment of said receiver, they made the following allegation: “ * * * In-tervenors would further represent and show to the court that the oil wells herein-above mentioned are pumping wells; that on account of their location in said East Texas field, they are in need of careful and competent attention; that if and in the event the defendant, Ed Markham will ill-treat, waste and destroy said property, producing oil therefrom and remove the personal property therefrom and deprive this intervenor of its and their lawful rights in said premises; said intervenor would further represent and show to the court that the property covered by such deed of trust, a copy of which is attached hereto, is deteriorating in value and' is in danger of being materially injured, and if left in the possession of the defendant herein, this intervenor and all other parties hereto will be materially injured and suffer an irreparable loss; that the value of said property is now insufficient to discharge the debts owing to this intervenor and the other parties, plaintiff, defendants, and intervenors herein, and will become more so unless such property is cared for, properly manage and operate during the pendency of this suit. This intervenor would further represent and show to the court by reason of the facts set out herein, that there is a necessity for the appointment of a receiver to take possession of, m’anage, control, protect, and operate said property, and the preservation of same, during the pendency of this suit in order to properly protect this intervenor and all of the other parties to said suit during the pendency thereof.” On the same date, August 14, 1939, the court appointed the same receiver, S. L. Vernon, to take charge •of the ⅞ mineral leasehold. In the order appointing said receiver the court found that all the parties interested came in per son or by attorney and recited further, “and R. N. Grisham, attorney for C. W. Crockett, being present in the court room at the time said petition was presented, and having cognizance thereof,” etc. It i? clear to our minds, in view of the undisputed facts in this record, that R. N. Grisham did not appear at said hearing. This is made plain by his statement in the record, made at that time, that he was in attendance in court upon another matter. The record shows that he received no legal notice of the hearing of said application for receiver, nor did his client, C. W. 'Crockett, have any notice. As stated above, on'the same day the application was made for a receiver, S. L. Vernon was appointed receiver to take charge of this property. The fact that Mr. Grisham was in the court room at the time the court granted the application for receivership and appointed the receiver, would not constitute an appearance by him in this case. Especially in view of his statement to.the trial court, made at the time, that he was making no appearance. Lindsey v. Ferguson, Tex.Civ.App., 80 S.W.2d 407.

. We shall consider this, then, as an application for appointment of a receiver ex parte without notice to either Crockett or Crockett’s attorney. When this view is taken of the case we think the pleading which formed the basis of the appointment 'of the receiver is wholly insufficient. It lacks the very material allegation disclosing facts showing a pressing emergency and tha existence of such circumstances as to-render an immediate appointment without notice necessary for the protection of the rights of the applicant. This court held in Patton v. Guy, Tex.Civ.App., 108 S.W.2d 868, 869, to which holding we still adhere, that: “The rule of law applicable here in passing upon the facts alleged to justify the appointment of a receiver ex parte is well stated in S3 Cor.Jur. 59, § 54, as follows: ‘A receiver may be properly appointed without notice and before giving the adverse party an opportunity to be heard, in and only in, an extreme and exceptional case, in which there is a great emergency and an imperious and most stringent necessity for an immediate appointment, as where the adverse party is out of the jurisdiction of the court, or cannot be found and served with notice, or, for some other reason, it is absolutely and imperatively necessary for the court to interfere, before the lapse of time required to give notice and afford a hearing, in order to prevent loss, waste, destruction, irreparable injury, or the defeat of the petitioner’s rights, or the giving of notice would jeopardize the delivery, safety, custody or control of the property over which the receivership is to be extended, and the rights of the complaining party may be amply and sufficiently protected in no other way, or by no other remedy, such as a temporary injunction or restraining order.’ ” See also Ragsdale v. Ragsdale, Tex.Civ.App., 119 S.W.2d 148.

But granting that the presence of R. N. Grisham, attorney for appellant, in the court room during the hearing, was sufficient to constitute an appearance for appellant, still we think the allegations set out above are insufficient to warrant the appointment of a receiver. An application for receiver brought under Article 2293, Section 2, R.C.S., as was this one, must clearly show by direct allegations, “that the mortgaged property is in danger of being lost, removed or materially injured; or that the condition qf the mortgage has not been performed and the property is . probably insufficient to discharge the mortgage debt.” Without such positive allegations the pleading will not warrant the appointment of a receiver. Haywood v. Scarborough, 41 Tex.Civ.App. 443, 92 S. W. 815. ■

We conclude, then, that the appointment of the receiver was unwarranted. The judgment of the court below is reversed and here rendered vacating said receivership.