text:
    HAYDEN et al. v. MIDDLETON et al.
    No. 3565.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1939.
    Rehearing Denied Jan. 3, 1940.
    Dallas Ivey, of Center, for appellants.

      Davis & Avery and Sanders & McLeroy, all of Center, for appellees.
   WALKER, Chief Justice.

Wm. Humphries died the 16th day of October, 1915. On the 30th day of June, 1938, S. W. Davis filed in due form in the probate court of Shelby county his application to have probated as the last will and testament of the deceased the following instrument:

“I, Wm. Humphries, of the town of Center, County of Shelby and State of Texas, being of sound mind and memory, do make and declare this to be my last will and testament, to-wit:
• “First — All my just debts and funeral expenses shall be first fully paid.
“Second — I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal to my beloved wife, Ellen Humphries, to have and to hold to her, my said wife, as long as she is my widow.
“Third — I nominate and appoint my said wife, Ellen Humphries to be the executor of this my last will and testament.”

This instrument was signed by Wm. Humphries, by his mark, and attested by J. J. Rushing and W. J. Burroughs. Davis held certain real estate belonging to the estate of Wm. Humphries, deed., under and through Mrs. Ellen Humphries, deed., on the theory that the last will and testament of Wm. Humphries, deed., vested her with a fee simple title to the land claimed by him. The will was offered by Davis for probate as a muniment of title, and as a link in his chain of title; he plead that he had exercised due diligence in presenting the will for probate. The regular county judge was disqualified, which fact was duly certified to the governor and, on that certificate on the 7th day of July, 1938, the governor appointed Hon. E. B. Lewis special judge “to try and determine the cause'.” Citation was by posting. On the 11th day of July, 1938, judgment was duly rendered and entered, admitting the will to probate.

On the 23rd day of August, 1938, appellant, .Mrs. Emma Hayden, et al., alleging that they were heirs at law of Wm. Humph-ries, deed., filed their petition for certiorari against the judgment of probate as rendered and entered by the probate court. For cause of action, they alleged that certain of the appellants were nonresidents of the state of Texas; that the citation in the probate proceedings was irregular in that the applicant knew that certain of the heirs of Wm. Humphries, deed., were nonresidents of the state of Texas, and that citation should have been by publication and not by posting; that the appointment of Hon. E. B. Lewis as special judge was irregular and that his judgment was void; that the judgment of probate was entered in vacation and not at a regular term of the court and that the judgment by the special judge in vacation was void; that the will was offered for probate 22 years, 8 months and 14 days after the death-of the testator, and Davis was in default in not offering it for probate within four years from the death of the testator, as provided by Arts. 3325 and 3326, R.C.S. 1925, Vernon’s Ann.Civ.St. arts. 3325, 3326. Appellants prayed that the will of Wm. Humphries, deed., as probated by the county court, be declared “to be void and of no effect,” and further: “In the event that the court should find said will to be valid, but in that event only, then plaintiffs pray that the legal effect of said alleged will be construed by this court, as it is written to convey to Ellen Humphries only an estate in this land during the time that she was a widow of Wm. Humphries, and not an absolute fee title, and that the deeds from Ellen Humphries to S. W. Davis and Drew Middleton insofar as they attempt to convey any title by virtue of said' alleged will of Wm. Humphries be adjudged void, for costs of suit, and for such relief, general, special, in law and in equity, as plaintiffs may be justly entitled to.”

On trial to the court without a jury, on the 21st day of November, 1938, judgment was entered in the district court on appellants’ petition for certiorari that they “take nothing by such certiorari proceedings as against plaintiffs” — the “plaintiffs” being the appellees herein; that the will, as tendered for probate by W. S. Davis in the county court'of Shelby county, be probated “as the last will of the said Wm. Humphries, deceased,” and: “It is further ordered, adjudged and decreed by the court, in response to the prayer of the plaintiffs for construction of said will, that said will be, and the same is hereby constructed to have vested a full, complete and fee simple'title and estate in Mrs. Ellen Humphries, the last wife of Wm. Humphries, deceased, of all the real and personal property of Wm. Humphries, which he had at the date óf his death, subject only to have been divested and being terminable only upon the re-marriage of the said Mrs. Ellen Humphries after the death of said Wm. Humphries, a condition and/or -contingency, however, which actually never •occurred, the said Mrs. Ellen Humphries having died after Wm. Humphries without -ever having re-married.”

From the judgment of the district court appellants have regularly prosecuted their appeal to this court.

We overrule all assignments of error against the citation, the certificate of ■disqualification of the county judge, the appointment of the special judge, and the judgment of the probate court admitting the will to probate. By the petition for cer-tiorari, all proceedings in the probate court were abated, and the cause of action for probate of the last will and testament of Wm. Humphries, deed., was removed to the district court for trial on its merits, and not for trial for reversal and remand to the probate court. It is provided by Art. 939, R.S.1925, that: “The cause shall be tried de novo in the district court.” The evidence satisfactorily supports the judgment of the district court admitting to probate as the last will and testament of Wm. Humphries, deed., the instrument in issue.

The evidence supports the court’s conclusion that S. W. Davis was not in default in failing to present for probate the last will and testament of Wm. Humphries, deed., within four years from his death. He testified: “I made the application to probate the will of Wm. Humphries. I knew him for years. He died in Shelby County, on the 16th day of October, 1915. He had lived here for years. On January 4, 1935, Ellen Humphries sold me forty-two acres of the land involved under this will. She died afterward. I would say that it was necessary to probate that will as a muniment of title. Most of the other children of Wm. Humphries and Ellen Humphries signed my deed. Ellen Humphries died on March 19, 1936, in Shelby County without ever having remarried. I never knew anything about the existence of that will till shortly before I made application to have it probated. I did not know anything about any claim of the first set of children of Wm. Humphries to the land that I bought, or the existence of the first set of children. We offered that will for probate as soon as we found it.”

Under authority of Eubanks v. Jackson, Tex.Civ.App., 280 S.W. 243, the testimony of S. W. Davis supports his right to probate the will after the expiration of four years from the death of the testator. It is not necessary for us to rest the judgment of the lower court upon appellees’ counter proposition that the court had jurisdiction to probate the will simply as a muniment of title without regard to the lapse of time; on this counter proposition appellees! cited 44 Tex.Jur. 780, Wills, § 213; Ryan v. Texas & P. R. Co., 64 Tex. 239; St. Mary’s Orphan Asylum of Texas v. Masterson, 57 Tex.Civ.App. 646, 122 S.W. 587; Howley v. Sweeney, Tex.Civ.App., 288 S.W. 602.

Since by the certiorari proceedings all parties interested in the estate were before the court by petition and answer, and the trial was without error, the judgment of the district court, admitting the will to probate, is affirmed.

The judgment of the district court is void in so far as it purports to construe the last will and testament of Wm. Humphries, deed. Though the district court has jurisdiction to construe wills, 44 Tex.Jur. 764, Wills, § 195 ; Howze v. Howze, 14 Tex. 232; Purvis v. Sherrod, 12 Tex. 140; Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666, 92 A.L.R. 873; Shindler v. Cooke, Tex.Civ.App., 90 S.W.2d 292; Thornton v. Zea, Tex.Civ.App., 39 S.W. 595, subsequent appeal 22 Tex.Civ.App. 509, 55 S.W. 798; Crosson v. Dwyer, 9 Civ.App. 482, 30 S.W. 929, its jurisdiction in certiorari proceedings from the probate court is confined to the grounds of error specified in the application for the writ; that is, to a trial de novo of the issues made by the pleadings in the probate court to the extent that error is assigned thereto in application for the writ. Art. 939, supra. The probate court is without jurisdiction to construe wills. Prather v. McClelland, 76 Tex. 574, 13 S.W. 543; Brown v. Burke, Tex.Civ.App., 26 S.W.2d 415; Clements v. Maury, 50 Tex.Civ.App. 158, 110 S.W. 185. Therefore, the district court could not acquire jurisdiction of that issue in a certiorari proceeding. In the case at bar, the pleadings in the probate court did not invoke a construction of the will, and for that reason, under Art. 939, supra, appellants could not make that point an issue in their application for the writ; however, it is immaterial.whether or not the issue was made in probate court.

The judgment of the lower court should be reformed by striking therefrom the adjudication of the construction of the last will and testament of Wm. Humphries, deed., and as so reformed it should be affirmed. It is accordingly so ordered.

Reformed and affirmed.


source: Caselaw Access Project

author: McCLENDON, Chief Justice.

license: Public Domain

text:
    LEWIS et al. v. FRIEDEN.
    No. 8872.
    Court of Civil Appeals of Texas. Austin.
    Dec. 30, 1939.
    Jesse J. Bartlett, of Austin, for plaintiffs in error.
    W. R. Smith, Jr., of Austin, for defendant in error.
   McCLENDON, Chief Justice.

This suit originated in the justice court, was appealed to the county court, thence to this court. It was brought by Frieden against Imo Lewis and Mrs. Hazelwood upon an alleged note for $337.50, dated January 13, 1936, payable in installments of $15 per month, and to foreclose an alleged chattel mortgage on certain itemized beauty parlor equipment articles, including one heater machine bearing serial No. 3356. The balance due on the note and mortgage was alleged to be $150 plus interest and attorney’s fees. Neither rate of interest nor amount of attorney’s fees, however, was stated. Possession also was sought of “one Cavalier P. W. machine, 18 Crog heaters, 18 Spiral heaters, Rods, Spacers, etc.” Defendants plead payment of the obligation. The judgment was in favor of plaintiff against defendants for $200, with 6% interest from date (July 27, 1938), for foreclosure of mortgage upon the above Cavalier heater, and for title and possession of the No. 3356 heater and other articles enumerated in the alleged January 13, 1936, mortgage. Defendants have appealed by writ of error, and challenge the judgment on the grounds: (1) that there was no evidence of any note or mortgage; (2) that the obligation of January 13, 1936, was paid in full; (3) that there was no basis in the evidence for the judgment for $200.

The undisputed evidence shows the following: January 13, 1936, plaintiff sold to defendants the articles above enumerated for specified sums aggregating (less admitted cash credits) $332. The No. 3356 heater was listed at $150. The sale was evidenced by a signed order. There was no evidence of agreement to execute a note or mortgage, but the order stated: “Bal. payable in 12 notes @ $19.25 ec. or if cash is paid less 1% on $319.00 $31.00.” The $332 was made up of the above $319 plus “12 mth. C. ch.” of $21. The No. 3356 heater was not satisfactory and a $175 heater was later substituted. This also proved unsatisfactory, and on April 14, 1936, the January 13, 1936, order was can-celled by payment of the balance of $192.50 then owing; such payment consisting of return of the No. 3356 heater at $150, and the cash payment of $42.50. At the same time a purchase order was executed by defendants which read:

“1 Cavalier P. W. machine 18 Crog heaters, 18 Spiral heaters, Rods, spacers, etc.$200.00
By cash with order (to be mailed in) . 100.00
12 mth Car. Chg. 10.00
$110.00
Bal. 12 notes
11 — 9.16
1 — 9.24
Separate Contract. Hold.”

The only controversy in the evidence was whether the sale of the Cavalier machine and cancellation of the Janu&ry 13, 1936, agreement were conditional upon the cash payment (to be mailed in) of $100. Plaintiff’s evidence was to the effect that the sale and cancellation were so conditional; and the suit was manifestly predicated upon that theory. Accepting that theory, the only basis for a judgment against defendants was the balance ($150) due on the January 13, 1936, agreement, and recovery of the title and possession of the Cavalier machine, for which the suit was brought as evidenced' by the pleadings of plaintiff. The judgment recites that the Cavalier ($200) machine was substituted for the No. 3356 ($150) machine, and judgment was rendered for $200 and foreclosure of a chattel mortgage on the Cavalier machine.' We find no basis in the evidence for this judgment. According to plaintiff’s evidence the January 13, 1936, agreement was cancelled and the sale of the Cavalier machine substituted upon condition that the $100 were paid, which was admittedly not done. He was therefore put to an election, based upon his own evidence, whether he would waive non-compliance with the condition and sue on the April 14, 1936, agreement, or disregard the latter (conditional) agreement on account of the noncompliance and sue upon the prior (January 13, 1936) agreement and for title and possession of the Cavalier machine. He chose the latter, and only the latter.

The record affords no basis for a judgment for $200, nor for foreclosure of a lien upon the Cavalier heater, nor for the decree of title to the No. 3356 heater.

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

Reversed and remanded.


author: SPEER, Justice.

text:
    GOODE et al. v. DAVIS et al.
    No. 13992.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 1, 1939.
    Rehearing Denied Jan. 12, 1940.

      A. B. Cates, of Decatur, for appellants.
    C. T. Gettys, of Decatur, for appellees.
   SPEER, Justice.

Appellants, K. O. Goode, R. S. Goode, Georgie Myers, joined by her husband, L. M. Myers, Mae Moore, joined by her husband, Milton Moore, Estelle Elder, joined by her husband, R. C. Elder, Pauline Andrews, joined by her husband, J. B. Andrews, Gladie Flickinger, joined by her husband, H. E. Flickinger, sued appellees, W. C. Davis and George Dickenson, in trespass to try title, seeking to recover about 122 acres of land in Wise County, Texas, a part of the Asa Hill Survey, describing the land by metes and bounds.

Appellees answered with general denial, not guilty and by special pleas, showing title in them under trustee’s deed, sheriff’s sale under tax suit foreclosure and by limitations.

Appellants replied with special exceptions, all of which were overruled by the court, which action is assigned as error. In the view we take of this appeal, it is unnecessary for us to discuss the merits of the answer or the ruling of the court on the special exceptions.

When appellants (plaintiffs) had concluded the introduction of their testimony, appellees (defendants) moved for judgment. No jury having been demanded, the court sustained appellees’ motion and entered judgment against appellants and in favor of appellees. From this judgment the appeal has been perfected.

To show common source of title, appellants introduced in evidence a deed from J. H. Foster and wife, conveying the land to R. F. Goode, dated April 12th, 1917. R. F. Goode was shown to be the father of plaintiffs ; a first lien deed of trust by Emma Goode, surviving wife of R. F. Goode, deceased, to F. W. Bartlett, Trustee, dated December 5th, 1924, against the land, securing the payment of a principal note for $1,000; and a second lien deed of trust between the same parties and of same date of the one last mentioned, securing $200, payable in ten annual instalments of $20 each during the life of the Principal $1,000 debt secured by the first lien deed of trust. Proof was made that R. F. Goode died intestate on February 15th, 1922, and that Emma Goode died intestate on July 11th, 1926, and that certain appellants were their only heirs and that other appellants were assignees of heirs; that as such, appellants owned the title of R. F. Goode and his wife, Emma Goode, both deceased. Appellants also put in evidence a deed from John G. Gose, substitute trustee, to B. L. Bartlett, dated February 7th, 1928; also a deed from B. L. Bartlett to I. N. Elrod and a deed from I. N. Elrod to W. C. Davis (ap-pellee) of date January 10th, 1934.

The agreed statement of facts and stipulations further shows that appellants introduced in evidence a judgment of the district court of Wise County, entered on August 3rd, 19132 (1932), in favor of the State of Texas, foreclosing a tax lien on the land against several parties defendant, including all of appellants except Gladie Flickinger and her husband. Among those defendants named is Mary E. Cunningham, shown to be the grantor of Gladie Flick-inger. An order of sale on the foregoing judgment was issued returnable November 28th, 1932. The return made by the officer shows that he advertised the land for sale in the manner and for the time required by law, to be sold on December 6th, 1932, it being the first Tuesday in said month; that on said date, between the hours of 10:00 o’clock A.M. and 4:00' o’clock P.M., he did sell the land at public outcry, at the court house door, to the highest and best bidder. A deed was made by the sheriff to E. H. Baumgaertner and Ben Johnson, the purchasers at said sale; Baumgaertner and Johnson deeded the land to I. N. Elrod pri- or to the date of the deed from Elrod and wife to appellee, W. C. Davis, shown above. The foregoing, together with other evidence and stipulations which we consider unnecessary to relate, constitutes appellants’ evidence of title. Appellees introduced no testimony, but rested when appellants finished. Resulting, as above shown, in the court sustaining appellees’ motion for judgment.

The rule of law by which appellants’ rights are controlled in trespass to try title cases, such as this, is laid down in 41 Tex.Jur., page 492, sect. 30, in this language : “The defendant being in possession of the land, is entitled to judgment against the plaintiff unless the latter presents prima facie proof of title. Possession of the premises by the defendant is deemed to give him a ‘right against the plaintiff’ until the latter has shown title to the land. The burden is cast upon the plaintiff to establish title by an affirmative showing and by a preponderance of the evidence.”

The record in this case shows that appellants are the heirs or the grantees of the heirs and only heirs of R. F. Góode and his wife, Emma Goode, both deceased. It also shows that the Goodes are the common source of title between the parties to this suit. Common source may be shown either by the pleadings of the parties, by agreements and stipulations or by proof upon the trial. Luckel v. Sessums, Tex.Civ.App., 71 S.W.2d 579, writ dismissed; Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Moran v. Stanolind Oil & Gas Co., Tex.Civ.App., 127 S.W.2d 1012, writ dismissed, correct judgment. When common source is shown, neither party need go farther back to establish a chain of title. Appellants in this case had á right to introduce testimony upon the development of their prima facie case, to show the source of such title as appellees had, for the purpose of establishing a common source. But they did not stop at this; they proved by a series of instruments which, if valid, placed title in appellees and divested themselves of the title.

Insofar as is necessary to here state, the first lien deed of trust introduced in evidence by appellants, was made in renewal of and to secure an indebtedness owing by R. F. and Emma Goode, evidenced by an obligation made by them on December 28th, 1917. The instrument in evidence recites these facts,- and that the beneficiary in the new obligation was subrogated to that old debt and the lien securing same. The second lien deed of trust is a part of the contract out of which grew the first lien, and we shall treat it as such.

In recognition of the foregoing principles of our established law, appellants claim that the two deeds of trust show upon their faces that the indebtedness secured bore usurious interest; that the second deed of trust, under which a sale was made by the substitute trustee and under which sale ap-pellees claim, was given to secure usurious interest on the principal obligation, and the sale made thereunder was therefore void; hence the substitute trustee’s deed passed no title to appellees’ grantor and that of course appellees took no title under the conveyance to them.

Whether or not the two deeds of trust, when construed together, secured a usurious contract is the determining factor in this appeal, if we disregard for the moment the apparent title shown in appellees under the tax judgment and sheriff’s sale.

In cases of this kind, where two deeds of trust are executed contemporaneously, the first to secure a principal indebtedness and recited interest, and the second given to secure another part of the interest, both must be considered as representing a single transaction from which we may determine whether or not the two, when read as one contract, taint the transaction with usury. This is true for the reason the real intent of the parties may thus be ascertained. If the terms of one when considered alone should disclose the vice, and the other construed in connection therewith should cause it to mean something else, that construction should be given the contract as a whole that would render it valid rather than void. Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464; Foley v. Farm & Home Savings & Loan Ass’n, Tex.Civ.App., 81 S.W.2d 231, and cases there cited; Cowan v. Wilson, Tex.Civ.App., 85 S.W.2d 823; Walker v. Temple Trust Co., Tex.Civ.App., 60 S.W.2d 826, affirmed by Supreme Court, 124 Tex. 575, 80 S.W.2d 935; 10 Tex.Jur., page 286, sect. 166.

The pertinent parts of the two deeds of trust to which we must look to ascertain if they render the instruments open to the vice of usury should be shown, and we quote the purpose clause from the first instrument as follows:

“To secure and enforce payment of one certain promissory note in the sum of $1,000.00 for money borrowed, executed by Emma E. Goode and R. S. Goode, and due as follows: $1,000.00 on the first day of January, 1935, dated December 5th, 1924, and payable to the order of J. W. Bartlett, the party of the third part, with interest thereon from January 1st, 1925, until maturity at the rate of six per cent per annum, and with interest thereon from maturity until paid at the rate of ten per cent per annum, said interest before maturity being payable annually on the first day of each January of every year, according to the terms of the interest coupons attached to said note, each.bearing ten per cent interest per annum from maturity until paid. * * *

“The note secured hereby is given in renewal and extension of a note for like amount dated December 28th, 1917, made by R. F. Goode and Emma E. Goode to the order of J. W. Bartlett and secured by a deed of trust on the above described land. * * * The beneficiary herein is hereby subrogated to all the rights, powers and equities of the beneficiary in said deed of trust and of the legal holders and owners of said note.

“Should a breach occur in any of the foregoing covenants, or should a tax be levied on this lien by the State of Texas, then the holders of the indebtedness secured hereby may at his or their election, or at the election of any of such holders, declare the whole amount lawfully collectible hereunder, due and collectible at once.”

The instrument further provided for sale of the land by the trustee or any substitute trustee that might thereafter be named under the provisions thereof. That he should make deed thereto unto the purchaser at such sale. It further provided that “all statements of facts and other recitals (in the trustee’s deed) therein made as to the non-payment of the money secured, and as to the requests of the trustee to enforce this trust, and as to the proper and due appointment of any substitute trustee, and as to the advertisement of sale, or time, place and terms of sale, and as to any other preliminary act or thing, shall be taken in all courts as prima facie evidence that the facts so stated or recited are true.”

The second lien deed of trust executed by the same parties contemporaneously with the first deed of trust and under which instrument the land was sold out by the substitute trustee and under which appel-lees claim, among other things, provided:

“This deed of trust is junior to one of even date herewith, executed by the first party to F. W. Bartlett, Trustee, securing a principal note for $1,000.00, and the note secured hereby represents a part of the interest agreed to be paid for the loan of said sum.
“In trust, however, to secure the certain indebtedness to J. W. Bartlett, third party, in the sum of Two Hundred Dollars, for which the said first party has executed to said third party a promissory note of even date herewith, payable as follows: Twenty Dollars ($20.00) January 1st, 1926, and a like sum on the first day of each following January until all is paid; both principal and interest payable at the office of J. W. Bartlett, Dallas, * * * said note bearing interest at the rate of ten per cent per annum, after default until paid, and providing for ten per cent attorney’s fees.
“Should default be made in the payment of any part of the note secured hereby, the holder hereof may declare the whole amount of such indebtedness due and collectible, at once; provided that not more than ten per cent interest per annum shall ever be collected on the principal note herein referred to.
“And if default be made by the first party in the payment of any amount due on any prior incumbrance on the land above described, or in the payment of any tax levied against said land, or against this lien, or the indebtedness secured thereby, the holder hereof may pay the same, and any sum so paid shall thereupon become a part of the indebtedness secured hereby, and with all sums collectible hereunder may be declared • due and collectible at once.”
“If default be made in the payment of any note secured hereby or any instalment thereon the holder of said note may cause the land described herein to be sold by the trustee for the collection of said note or instalment, and any other sum due and collectible hereunder, and such sale shall be subject to the prior lien herein referred to. ⅜ ⅜

The instrument further provides that in case of default in payment by the maker of the note secured, for sale by the trustee or his successors in trust upon request of the holder of the indebtedness of the land, “at public auction for cash, in accordance with the statute now governing such sales, after posting notices of sale for twenty-one days * * * This further provision appears in the deed of trust: “And it is agreed that- in case of any sale hereunder all prerequisites to said sale shall be presumed to have been performed; and that in any conveyance hereunder, all statements of facts and' other recitals therein made as to non-payment of the money secured, and as to the request of the trustee to enforce this trust, and as to the proper and due appointment of any substitute trustee, and as to the advertisement of sale, or time, place and terms of sale, and as to any other act or thing, shall be taken in all courts as prima facie evidence that the facts so stated or recited are true.”

The substitute trustee’s deed, which appellants introduced in evidence, describes the second deed of trust above mentioned, referring to it by date, the parties and its recordation; that the trustee named therein had resigned, the appointment of John G. Gose as substitute trustee, the default in the payment of the note secured, the declaration by the owner and holder of its maturity under the accelerating maturity clause therein, and the request by the owner of the indebtedness to the substitute trustee to sell the property under the terms of the instrument.

The deed further recites: '“Whereas, pursuant to said request, and under the power conferred by said deed of trust, the undersigned (substitute trustee) on the 7th day of February, 1928, being the first Tuesday in said month, between the hours of ten o’clock in the forenoon and four o’clock in the afternoon of said day, offered said real estate for sale at public auction, at the door of the county courthouse of Wise County, Texas, and after having advertised said sale by posting printed notices of the time, place and terms of sale at three public places in said county, one of which was at the courthouse door.” Recitations are further made that B. L. Bartlett became the purchaser at said sale for $50, and that upon receipt by the substitute trustee of that amount, conveyance of title is recited in the usual form for such instruments.

The appellants base their contention that no title passed under the sale of the land by the substitute trustee upon the theories, (a) because the sale was made for failure to pay usurious interest; (b) because the land was sold out before the expiration of four years after the death of the maker of the obligation and within the time in which administration could be had, and (c) because the purported deed did not affirmatively disclose that notice of the time, place and terms of sale was made and given by the trustee by posting notices thereof for three weeks preceding such sale, as required at Art. 3810, R.C.S. These points are presented in their first five propositions.

As shown, the principal obliga-, tion of $1,000 bore interest at six per cent jper annum, and ten per cent per annum after maturity. The second note and deed of trust amounted to two per cent per annum interest on the principal note, at all times before maturity. .The aggregate interest thus provided for amounted to only eight per cent per annum, and obviously no usury is shown unless the provisions of acceleration in the deeds of trust would enable the holder of the paper to collect from the makers a greater amount than ten per cent per annum, if, as and when maturity could be accelerated and collection enforced. We are not authorized to select one or more clauses or expressions found in an instrument or in two instruments when considered as one, and thus determine whether or not usury could be exacted. But all provisions therein are to be given effect if it is possible to do so. If the instruments or either of them clearly evidence an intention by the parties not to vitiate their contract by providing for an unlawful rate of interest, such intention will be given effect over other isolated parts, which when considered alone may be construed as usurious. A recent expression by our Supreme Court, speaking through Justice Critz, in the case of Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 1048, 109 A.L.R. 1464, recognizes the principle last announced. That was a case in which the defense to an obligation was that of usury; there were accelerating maturity clauses which, if considered alone, might lead to the conclusion that usurious interest could be exacted. In that transaction, a provision in the deed of trust appears which is very similar to the one under consideration here. In that instrument this provision is found: “That the intention of the parties being to conform strictly to the Usury Laws now in force, any of said contracts for interest shall be held to be subject to reduction to the amount allowed under said Usury Laws as now or hereafter construed by the courts having jurisdiction.” Referring to the quoted provision the court said: “If this last provision can be given effect, and, as already said, it must be given some effect if it is reasonably possible to' do so, it must be held to operate to deny the note holder the right, in any event, to collect usury.”

In Federal Mortgage Co. v. Davis, Tex.Civ.App., 100 S.W.2d 717, 719, affirmed by the Supreme Court in 131 Tex. 46, 111 S.W.2d 1066, it was held that where a contract is capable of two interpretations, one rendering it void and the other valid, the interpretation rendering it valid will be adopted. In the same case it was held that making a loan with intent to take a rate of interest in excess of the statutory amount is an essential element of usury and, where the contract is fair on its face, an intent to take unlawful interest must clearly appear. In addition to the expressions found in the deed of trust under discussion, in that case, it was provided as follows: “I shall pay, in satisfaction of the loan and interest, a sum equal to the principal of the loan made, and also interest thereon computed at the rate of ten per cent, per annum, with the interest payable in monthly installments, * * * and I shall not be .called upon to pay, as principal and interest orí the loan, any greater sum.” The court held against the contention that the accelerating maturity clauses in the two deeds of trust should be construed to mean that there was an intention on the part of the lender to receive or collect more than ten per cent per annum .from the borrower.

In Walker v. Temple Trust Co., Tex.Civ.App., 60 S.W.2d.826, a very similar situation arose to the one now before us. Except that the one here under consideration is more explicit with reference to the amount payable in case of prematurity by virtue of accelerating maturity clauses. In that case, two series of notes were made, one for the principal indebtedness and the other for part of the interest. The latter provided that in case of failure to pay any instalment (all of which was for interest) or if default should be made in any of the provisions contained in the principal obligation and the lien securing it, then .the debt owner could declare the whole of the indebtedness (the interest instalments) due and payable. Without any declaration by the parties that only that part of the interest which had accrued should become due and payable, the court held that this would follow as a matter of law, even though to construe the contract to mean that maturity of the whole of the series of interest notes would have made the obligation usurious. It was held that if reasonably possible the court should adopt the construction of a contract that would render it nonusurious. In affirming the above holding, the Supreme Court, in the same case, (124 Tex. 575, 80 S.W.2d 935), held that the dominant purpose and intention of the parties, interpreting the contract as a whole, should control in arriving at whether or not it is usurious. The rule is laid down that a presumption will prevail that unearned interest will not be collectible upon acceleration of maturity because of failure to pay an instalment thereof. To avoid extending this discussion unnecessarily, we suggest that any one interested in the point could read with profit the discussion by the Supreme Court of the points involved in the last above citation.

In this case, the first deed of trust securing the principal indebtedness, as above stated, provides that should a breach of the obligation occur, the holder could at his option declare the whole amount lawfully collectible thereunder due and collectible at once. The second deed of trust securing a part of the interest and under.which the sale of the land was made, contained an accelerating maturity clause similar to that in the first deed of trust with this additional: “Provided that not more than ten per cent interest' per annum shall ever be collected on the principal note herein referred to.”

Under the several provisions of the contract in the instant case, the obliga- , tion refutes the idea that an illegal rate of interest could ever be exacted of the makers. It very definitely appears that the intention of all parties was that the debt owner could never collect a greater rate of. interest on the principal obligation than that permitted by law. We therefore feel impelled to place that construction upon the instruments before us that will comport with legality rather than illegality. It is our duty to indulge the presumption that the parties intended to obey and not breach the law, when such a construction can be placed upon their acts without doing violence to an otherwise express or clearly implied intention. Walker v. Temple Trust Co., supra; Dunlap v. Voter, Tex.Civ.App., 72 S.W.2d 1109, writ refused; Shive v. Braniff Inv. Co., Tex.Civ.App., 68 S.W.2d 564; Bankers’ Life Company v. Miller, Tex.Civ.App., 68 S.W.2d 574, writ refused; Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464. Appellants’ first three propositions, which challenge the validity of the conveyance by the substitute trustee because of usury, are overruled.

By their fourth proposition, appellants attack the judgment of the trial court, wherein it was held that the sale made by the substitute trustee within four years after the death of the obligor, was valid and passed the title to the land. It is contended that the sale so made within the time in which administration could have been taken out on the life of Mrs. Emma E. Goode was void and passed no title. The following authorities hold squarely against such contention, and the proposition is overruled: See Wiener v. Zweib, 105 Tex. 262, 141 S.W. 771, 147 S.W. 867; Slay v. Gose, Tex.Civ.App., 233 S.W. 348; Freece v. Truskett, 130 Tex. 90, 106 S.W.2d 675.

Under fifth proposition, appellants contend that the substitute trustee’s deed was void and passed no title because notice of the time, place and terms of sale was not made and given by the trustee by posting notices thereof for three weeks preceding such sale, as provided by Article 3810, R.C.S.

The instrument under which the sale was made provided that the trustee should sell the property at public auction for cash, at any time after default, in accordance with the statutes then governing such sales. The instrument further provided, as quoted above, that in case a sale was made thereunder, that all prerequisites of said sale should be presumed to have been performed; and that in any conveyance made under such sale, the statements of facts therein contained relating to advertisement of sale, time, place and terms of sale and as to any other act or thing should be taken in all courts as prima facie evidence that the facts so stated were true. We have already shown the recitations in regard to the matters complained of as disclosed by the trustee deed. It would appear that the recitations in the deed specifically disclose that the sale was made in Wise County, where the land was situated, on the first Tuesday in a named monfh and within the hours provided by Article 3810, R.C.S. It also appears that the sale was so made “after having advertised said sale by posting printed notices of the time, place and terms of sale at three public places in said county, one of which was at the court house door.” The deed does not recite that said notices were so posted “for three consecutive weeks prior to the day of sale”, as provided by the article referred to. This is the complaint made by appellants. This was a “prerequisite” to the right of the trustee to make the sale at the time and place it was made. The requisites provided by the statute in such cases are for the benefit of the mortgagor to guarantee to him that the property will bring an adequate price when sold. There is no contention made that mortgagors lost any valuable right or that the price bid at the sale was inadequate. True the land was bought at the sale for $50, but the sale as made was for one or more of the $20 in-stalments on the interest note which in no event could have been more than $60; for aught the record shows it could have been for one instalment of $20. The sale was of necessity subject to the $1,000 principal indebtedness and any accrued interest thereon which had not been paid; hence, the amount bid and paid at the sale could not be said to present any question of fraud or inequity, nor could appellants be heard to say that they suffered any loss by reason of the sale as made.

Since the statutory provisions, as contained in Article 3810, are for the benefit of the mortgagor, they may be waived by him. 29 Tex.Jur. page 976, sect. 138 et seq. It is not a requisite to the validity of a trustee’s deed that it shall recite in detail the performance by him of all the things required by law, but when such á sale is attacked upon grounds claimed to affect its validity proof may be made of the facts as they really existed. In Southland Lumber Co. v. Boyd, Tex.Com.App., 244 S.W. 119, it was held that where the trustee’s deed recited that “on account of default in payment of the note, the maker having refused to make payments as provided in the deed of trust and mechanic’s lien contract and note, after having been duly notified to do so and duly served with notice of sale as required by law, the trustee offered the property for sale”, would be sufficient to prove compliance with the deed of trust and the statute in regard to publishing notice.

In Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143, the Supreme Court, speaking through Chief Justice Phillips, discussed a somewhat similar situation to the one here involved. Relating to the notice of sale made by the trustee, the deed recited this: “I proceeded to sell said property at public auction at Hillsboro, Hill County, Texas, between the hours of 10 a. m. and 4 p. m. on the first Tuesday, the 6th day of October, 1908, after having given public notice of the time, place and terms of said' sale by posting a public notice on the court house door, Hill County, Texas, as required by said deed of trust.” The instrument under which the sale was made contained the following provision: “And said deed of conveyance made by the said trustee (the deed to be made by him to the purchaser at a trustee’s sale), and delivered to any purchaser of said property at such sale, shall be evidence that said trustee has in all things .duly and legally executed his trust.” It was held that the deed, when introduced in evidence, constituted prima facie proof that all require-’ ments of the law requisite to its validity had been observed, including the posting of the necessary notices. From the facts shown, the authorities cited, the agreement contained in the deed of trust and the recitations found in the deed it must be presumed that all “prerequisites” to the rights of the trustee to sell, were shown, and that appellants’ ancestors who made the contract waived their rights to require that all the provisions showing a right of sale, be further shown. We therefore overrule the fifth proposition.

Propositions from six to twelve, both inclusive, challenge the validity of appellees’ claim of title, growing out of the sheriff’s sale under the tax suit judgment above referred to. We find no merit in some of the theories advanced, but the ninth proposition is well taken. The assignment upon which that proposition is grounded is to the effect that the sheriff’s sale under the judgment was void and passed no title, for the reason the execution or order of sale had expired when the sale was made. Judgment was rendered August 3rd, 1932. Order of sale thereon was issued on October 8th, 1932, returnable on November 28th, 1932. The officer’s return thereon showed that he received the order of sale on the date of its issuance and on the same day levied upon the land therein described. That on October 20th, 1932, he advertised the land for sale on December 6th, 1932, and that on that day he sold the property to the purchasers named in his subsequent deed. It will be observed that the sale was advertised to be made and in fact was made by the sheriff after the expiration of the order of sale by which authority he attempted to act. Such a sale was without authority of law and was void. Irvin v. Ferguson, 83 Tex. 491, 18 S.W. 820; Holloway v. McIlhenny Co., 77 Tex. 657, 14 S.W. 240.

Propositions from thirteen to seventeen, both inclusive, complain of the action of the court in failing to sustain special exceptions urged by appellants to the special answer plead by appellees, but since no testimony was offered by appellees under their pleadings complained of, and therefore no harm is shown to have been sustained by appellants because of the rulings of the court on their exceptions, we find it unnecessary to pass upon them.

We hold that the trial court was warranted in entering judgment against appellants at the conclusion of their testimony. When it was made to appear that their inheritance from their ancestors was subject to the outstanding liens herein-above shown, and that a valid sale of the property was made under the deed of trust, and that the purchaser acquired title thereunder, appellants failed to show title in themselves. These facts would support the judgment rendered, even though no title passed under the sheriff’s deed growing out of the judgment in the tax suit. That sale did not affect the validity of the substitute trustee’s sale.

The judgment of the trial court was correct and is therefore affirmed.


author: BROWN, Justice.

text:
    CUNNINGHAM et al. v. PASCHALL.
    No. 13993.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1939.
    Rehearing Denied Jan. 12, 1940.

      A. B. Cates, of Decatur, for appellants.
    C. T. Gettys, of Decatur, for appellee.
   BROWN, Justice.

R. S. Goode and wife, Janie, and Mary E. Cunningham, a feme sole, on December 31st, 1928, executed and delivered to F. W. Bartlett, as Trustee, a certain Deed of Trust, conveying the lands in controversy, situated in Wise County, Texas, to secure the payment of one note in the sum of $1,-350, due- and payable on January 1st, 1936, to the order of E. J. Emmons, bearing interest from.January 1st, 1929, until maturity, at the rate of 6½ per cent per an-num, the interest before maturity being payable annually on the first day of January of each year, and the past due interest bearing interest at the rate of 10 per cent per annum after maturity; the principal debt is also made to bear interest after maturity at the rate of 10 per cent per an-num.

The instrument provides for the appointment of a substitute trustee, under the • usual conditions, and also provides that the original, or any substituted trustee, “is hereby authorized and empowered- to appoint an attorney in fact to act as trustee hereunder, for-him and in his name, place and stead; such appointment to be evidenced by an instrument signed and acknowledged by said trustee, substitute or successor; and all acts done by said attorney in fact shall be as valid, lawful and binding as if done by said trustee, substitute or successor in person. And it shall not be necessary for any trustee or attorney in fact to personally post the notices as herein provided for, but the same may be posted by any person under his direction.”

The instrument further recites that it “secures the payment of another note of this date, called second mortgage note, in the sum of $236.25, executed by first parties payable to Mrs. J. W. Bartlett, the lien securing which shall be subordinate and inferior to the lien securing the indebtedness hereinbefore described. The power of sale herein conferred on the trustee may be exercised as hereinbefore provided in case of default in the payment of the second mortgage note.”

The other provisions in -the instrument are those common to Deeds of Trust in Texas, including right of acceleration of maturity and power of sale.

E. J. Emmons, payee named in the larger note, died and his son, Edwin J. Emmons, Jr., was, on July 23rd, 1929, named by the Probate Court of Connecticut as administrator of deceased’s estate.

By successive conveyances, beginning with one by such named administrator,.the note and Deed of Trust lien were sold, assigned and conveyed to one Geo. H. Allen, who requested that a sale be made of the lands because of default in the payment of the indebtedness.

The Trustee, by an instrument in writing, appointed one J. L. Sellers to act as attorney in fact for such Trustee in making the sale, and Sellers, after advertising the sale, did, on March 6th, 1934, at public vendue, sell the lands to George H. Allen, and instead of executing the Trustee’s deed as attorney in fact for the Trustee, Sellers executed the deed to the purchaser, Allen, as a substitute trustee. The purchaser went into possession and, through successive deeds, E. L. Paschall, the appellee, became the purchaser.

Sellers, attorney in fact for the original trustee, executed in proper form a correction deed to the purchaser at the Trustee’s sale, several years later.

The former owners of the lands, on October 31st, 1938, brought suit in trespass to try title against the said present record title owner, Paschall. They also sued for rents and damages.

. The defendant answered formally and by pleading specially his title through the Trustee's sale, his title by three years’ limitation, improvements made in good faith as an innocent purchaser for value, and the payment of taxes and subrogation to the tax liens, and he demurred and specially excepted to the petition. In addition to specially excepting to the answer, the plaintiffs denied generally all allegations in defendant’s answer.

It will be noted here that the justness of the original debt is not assailed, that, by the very terms of the deed of trust, the debt was long past due and nowhere in plaintiffs’ pleading do they tender or even offer to pay the admitted indebtedness.

In fact, the plaintiffs’ chief contention before us is that the contract is tainted with usury and that the sale was made because of default in the payment of the usurious interest and therefore the debt was not, in fact, due and its due date could not be accelerated, under the provisions of the Deed of Trust.

We have examined the instrument as found in the agreed statement of facts, and we do not find where the contract provides for usurious interest. There is nothing in the statement of facts that sheds light upon the second lien note, which we mentioned above. It may or may not have been an interest note, we do not know and no evidence was introduced to show its status. But suppose it were an additional 'interest note, and suppose the contract were such that by accelerating the maturity of the debt, usurious interest could be exacted, nevertheless we find the following provisions in the Deed of Trust: “Should breach occur in any of the foregoing covenants, or should a tax be levied on this lien by the State of Texas, then the holder or holders of the indebtedness secured hereby may, at his or their election, or at the election of any of such holders, declare the whole amount lawfully collectible hereunder. due and collectible at once.” (Italics ours.)

Thus it will be seen that even if the contract could be shown on its face to provide for usurious interest, this “saving clause” makes it plain that only the amount “lawfully collectible” can be collected under the instrument.

Our Supreme Court, since the decision in the famous case of Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 84 A.L.R. 1269, has made it plain that, unless it can he shown there is an evident intent to exact usurious interest,the contract containing any language showing that nothing more than lawful interest can or will be exacted will not be held to be tainted with usury. Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464, which case reverses Grota v. Holcombe, Tex.Civ.App., 97 S.W.2d 301.

The cause was tried to the court, and after the plaintiffs had introduced all of the evidence that appears in the agreed statement of facts, the defendant declined to introduce any evidence and moved- for judgment. This motion was granted and judgment accordingly was rendered for the defendant. Hence this appeal.

In addition to the cases cited above, we cite our opinion in K. O. Goode et al. v. W. C. Davis et al., Tex.Civ.App., 135 S.W.2d 285, opinion by Mr. Justice Speer.

The contract before us is not usurious and the sale being for default in the payment of interest, the sale was not invalid.

We further observe that the principal note and its interest coupons were made payable to E. J. Emmons, while the second lien note, treated by appellants as an additional interest note, was made payable to Mrs. J. W. Bartlett. No privity of relationship is shown between Emmons and Mrs. Bartlett.

Under these facts, the two instruments do not show an intent to exact usurious interest. This would he true if both debts bore interest from date at the rate of 10 per cent per annum, because they appear, insofar as this record discloses, to be two separate and distinct debts, due to two separate and distinct persons, and one is secured by a first lien while the other is secured by a second lien.

Furthermore, in 42 Tex.Jur., para. 48, p. 941, in discussing sales made • under usurious contracts, we find the following pronouncement: “But after a sale for both principal and interest without a tender of the principal sum due, the sale is valid and the purchaser obtains a good title.” The text cites Hemphill v. Watson, 60 Tex. 679.

The principal sum note executed to Em-mons was, as is .expressly stated in the deed of trust, for the extension of a vendor’s lien note given to secure payment of the purchase money due on the lands conveyed.

In Hemphill v. Watson, supra, our Supreme Court held that it was incumbent upon the debtor to tender the principal sum'—the money lawfully owed—to the owner and holder of the debt before the sale; that such a tender, after the sale, is not sufficient and the sale cannot be set aside under such circumstances.

Here there is no tender of, no offer to pay, the debt that is admittedly past due and just.

In the case cited, it is further held that a petition, in such circumstances, which does not tender such payment is subject to a general demurrer.

It is well established that when a mortgagee purchases at a foreclosure sale which is irregular or void as to the mortgagor, or one claiming under the mortgagor, and who has taken possession under and in reliance upon the foreclosure and purchase, may retain possession against the mortgagor or one claiming under him, until the debt is paid. Conner Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709. See, also, Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; Elliott v. C. C. Slaughter Co., Tex.Civ.App., 236 S.W. 1114; Vanderwolk v. Matthaei, Tex.Civ.App., 167 S.W. 304, writ refused. Many other cases could be cited in support of such holdings.

That the deed of trust may law-' fully provide for a sale by some attorney in fact, duly authorized by the Trustee, is settled. Casas v. Federal Land Bank, Tex.Civ.App., 106 S.W.2d 1107, and cases cited.

We see no merit in the propositions that the defendant below cannot rely upon the respective sales and assignments executed by Edwin J. Emmons, Jr., as administrator of the estate of E. J. Emmons, deceased, to George H. Allen, executor of the Bristol Estate, and that by George H. Allen, as executor of said estate, to Elsie P. Nichols, after’ the plaintiffs introduced such instruments and conveyances in evidence, on the theory that it was incumbent upon the defendant to go further and show authority for such sales.

We take the opposite view, namely: The plaintiffs having introduced in evidence documents showing a perfect chain of title through which the defendant has been vested with title to the lands in controversy, plaintiffs have thereby made out a case for the defendant and it was incumbent upon the plaintiffs to both plead and prove that there is some vice in the conveyances that will render them ineffectual as links in defendant’s chain of title. Goode et al. v. Davis et al., supra.

We hold that the trial court should have given full effect to all conveyances, thus introduced by the plaintiffs, unless and until same were successfully attacked by the plaintiffs.

Furthermore, the deed of trust contains those customary stipulations concerning the presumption of all prerequisites to the sale having been performed, in case of a sale, and concerning the recitations and statements of facts, in any conveyance, as being prima facie evidence of the truth of such facts and recitations.

It is too well established that the parties may so contract to burden this opinion with citation of authorities.

All assignments of error are overruled, and the judgment of the trial court is affirmed.


author: SPEER, Justice. '

text:
    TEXAS EMPLOYERS INS. ASS’N v. WATKINS et al.
    No. 13988.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 24, 1939.
    Rehearing Denied Jan. 12, 1940.

      T. R. Boone, E. T. Duff, and ICearby Peery, all of Wichita Falls, for appellant.
    Napier &• Napier, of Wichita Falls, for appellees. •'
   SPEER, Justice. '

This is a Workmen’s Compensation case, and the rights of the parties are controlled by the provisions of Article 8306 et seq., R.C.S., and Vernon’s Texas Civil Statutes.

The suit was instituted by Mrs. Nellie Watkins and her children, as the surviving dependents of F. J. Watkins, deceased against Texas Employers Insurance Association, as compensation insurance carrier for the employers, A. T. Wolf and L. V. Hull, and that if it should be determined that deceased was ah employee of Wolf only, then that the policy was intended by all parties to cover the employee, Watkins.

It appears that F. J. Watkins was the deceased husband of Mrs. Nellie Watkins, and the father of the other plaintiffs; F. J. Watkins had been employed as a pumper on an .oil lease owned and operated by the named employers for about six years prior to May, 1933, -when he received an accidental injury to his head, neck and back, while in the course . of his employment. Allegations were that shortly after receiving the injury, and as a direct-result thereof, Watkins developed tuberculosis, from which he suffered, continuously until he died, on November 16, 1937; his average weekly wage is alleged to have been $12. Plaintiffs sought recovery for 360 weeks’ compensation. Under the necessary allegations, they prayed for a lump sum settlement.

The insurance carrier, to which we shall refer as defendant, answered by general denial and by special pleas, among which was one of res judicata, the nature of which plea and the facts developed thereunder will have our attention later in this discussion.

The-cause was tried to a jury on special issues. The court explained in his charge the meanings of “injury” and “personal injuries”, “injury sustained in the course of employment”, “accident” and “accidental”, “employee” and “producing cause”, and complaint is made only of the latter, which we quote: “Instruction E. You are instructed that by the term ‘producing cause’, as used in this charge, is meant an exciting or contributing cause, which together with another cause or causes, produces a death, and but for’which the death would not have resulted.”

Under these instructions the verdict of the jury, as reflected by answers to the special issues, was: (1) Watkins sustained an injury on May IS, 1933; (2) such injury was accidental; (3) it was sustained in the course of his employment; (4) the injury so sustained was. the producing cause of Watkins’ death; (5) that manifest hardship and injustice would result to plaintiffs unless compensation was paid in a lump sum; (6) deceased’s death was not solely the result of disease; (7) that his death was not solely the result of tuberculosis, and (8) it was the intention of the association that the insurance carried by it would inure to the benefit of F. J. Watkins.

On the verdict judgment was entered in favor of the surviving wife, in a lump sum, for $1,126.51 and in favor of the minor children for'$181.69, and an additional amount of $3.60 per week for 311 weeks. The aggregate amount for which judgment was rendered was based on a $12 average weekly wage rate for 360 weeks, beginning with the date of the death of F. J. Watkins. Certain of the plaintiffs were found to be more than twenty-one years of age, not dependent, and were denied recovery. Provisions were made in the judgment for the statutory attorney’s fees.

Defendant’s motion for new trial being overruled, it has perfected this appeal under adequate assignments of error.

The first proposition is to the effect that since such accidental injuries as were received by deceased occurred on May 15, 1933, and he having died on November 16, 1937, from tuberculosis, there was no testimony of probative force to support a jury finding that the accidental injury was the procuring cause of his death.

We think there is enough evidence in the record, which, if believed by the jury, would constitute more than a suspicion or surmise that the accident contributed to or aggravated a prior tubercular condition, or disease, with which the employee was suffering at the time of the accident.

Under Article 8309, R.C.S., subdivision five of Section 1, it is provided that, “The terms ‘injury’ or ‘personal injury’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” The foregoing definition was included in the court’s charge.

Mrs. Watkins testified that her husband received the injury on about May IS, 1933; she saw him sitting at the power plant with his head on his arms and went to him and found him apparently suffering from an injury; she took him home and sent for the doctor; he was complaining of his back, neck and chest; he said he was suffering pain in these parts; he complained most of his back; when the doctor came he was examined in the presence of witness, and she saw bruises on his back and chest. Deceased spit, up blood for a few days after he was injured, she did not remember exactly how many days; he remained in bed several weeks and lost weight and began running a temperature in the summer; the next spring he began to have spells with his lungs and coughed up considerable blood; he remained in bed and would get up for short times and lie down again; he had those spells with his lungs and spit up blood frequently after that first summer; he grew weaker all the time until he died, on November 16, 1937. On cross examination Mrs. Watkins said she had previously testified in a case wherein her husband was suing for compensation but had not mentioned the fact that her husband had spit up blood; she said she was not asked about it and that she did not testify about it.

Dr. Parnell testified that he examined Watkins in December, after he claimed to have been injured in May; made X-ray pictures of his spine and found that he had a dislocated vertebra and a left inguinal hernia; he was complaining of his chest; he made no picture of his chest, because the patient did not want it done until he could pay for it; a diagnosis was made by witness and it was found that Watkins had tuberculosis and witness so advised him at the time. Witness said he found tuberculosis in the chest and that Watkins died of pulmonary tuberculosis. Counsel for plaintiffs propounded a hypothetical question to the witness, embracing the things testified to by Mrs. Watkins, and asked if those were the symptoms of tuberculosis, and the doctor said, “Yes sir, that is a picture of tuberculosis”. Based on the question and a description of the injury received the witness was asked to “Tell the jury what effect the injury (to Watkins) had on his death.” Among other things, witness said, “Well, of course it lowered his vitality. He evidently had a tubercular infection in his chest or in his system somewhere and the lowering of a man’s vitality, or the damage to a chest which would cause him to spit up blood would very likely cause a hem7 orrhage into some part of the lung which would further aggravate it.” An injury to the chest which causes a man to spit up blood would indicate that he had a damage somewhere in the lungs or bronchi. It indicates a rupture of a blood vessel in the lungs or bronchi, and the bronchi go all through the lungs; Watkins evidently had some degree of tuberculosis years before that (when he received the injury), a little while before anyway, at least he had the germ in his body.

It is well settled by many decisions in this State that even though an employee is afflicted with disease prior to receiving a compensable injury which aggravates the pre-existing disease, resulting in death or incapacity, the employee will not be denied recovery. Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963, writ refused; Texas Emp. Ins. Ass’n v. Jimenez, Tex.Civ.App., 267 S.W. 752, writ dismissed; Texas Emp. Ins. Ass’n v. Parr, Tex.Com.App., 30 S.W.2d 305; Texas Emp. Ins. Ass’n v. Ford, Tex.Civ.App., 93 S.W.2d 227, writ dismissed; Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354, writ dismissed; Traders & Gen. Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391.

The testimony in the instant case was conflicting, and the controversial issues were for determination by the jury. In this case they were resolved against the contention of defendant, and it is not our prerogative to set that verdict aside, if there is any substantial testimony to support it. 3 Tex.Jur., page 1102, sect. 771; 41 Tex.Jur., page 1246, sect. 378; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed—correct judgment; Worth Finance Co. v. Hillard Motor Co., Tex.Civ.App., 131 S.W.2d 416; Texas Cotton Growers’ Ass’n v. McGuffey, Tex.Civ.App., 131 S.W.2d 771, writ dismissed, and cases there cited. In the last cited case, the court used this language, 131 S.W.2d at page 774: “It appears to be well settled that a verdict will not be disturbed because a jury may have erred, but that in order to justify this court in setting aside such a verdict, it is not sufficient that it does not appear clearly to be right; it must appear to be clearly wrong.” Because of the nature of the testimony, the hopeless conflicts therein, the verdict rendered and the authorities cited, the assignment is overruled.

Another proposition by defendant challenges the definition of “producing cause”, as given in Section “E” of the court’s charge. Before it was read to the jury, objections were made to that part of the charge, but in the motion for new trial we find no ground there urged to that section; however, there are two grounds urged in identically the same language to “Section D” and to consider that one of them was intended to cover “E” above quoted, we do not think it open to the objections urged. The complaint made was that the charge on “producing cause” was too general under the facts of this case “that by its terms it did not exclude “occupational disease” nor affirmatively exclude the “lowered resistance” feature in the case. We see no element of occupational disease in the record nor is the verdict necessarily grounded upon the lowered resistance theory urged by defendant.

We are cited by defendant to the case of Texas Employers Ins. Ass’n v. Burnett, 129 Tex. 407, 105 S.W.2d 200, in support of its contention that the instruction should have excluded definitely the right of recovery by plaintiffs when the testimony disclosed only that Watkins died from tuberculosis, contracted after the injury, because of his lowered vitality resulting from the injury. In the Burnett case, the court drew the distinction between injuries which contribute to pre-existing diseases, producing death or disability, and those injuries which simply reduce one’s vitality and ability to resist a new and independent disease that may be contracted thereafter. At page 202 of 105 S.W.2d, the court said : “It is not even contended in this case that the death was the result of the injury. The finding, which is shown by the undisputed proof, that the employee died ‘as a direct result of typhoid fever, which was in no way produced or caused by the injury,’ negatives the idea that the death was the result of the injury. It is only contended that the injury may have to some extent lowered the resistance of the employee, and in that way probably contributed to some extent to his death.” In the instant case the doctors who testified referred to lowered vitality and resistance of disease when caused by injuries; yet, as above stated, there was sufficient testimony of probative value that the tubercular condition was in the body of Watkins before he received the injury, to distinguish the issue from the conditions considered by the court in the Burnett case, supra. We think that the charge sufficiently informed the jury that a producing cause must be one which, in conjunction with other cause or causes produces a death, which would not have occurred but for the injury. The assignment must be overruled.

Defendant, by its third proposition based on an assignment of error, challenges the first special issue. That issue reads: “Do you find from a preponderance of the evidence that the deceased, F. J. Watkins, sustained an injury on about the 15th day of May, 1933 ?” The answer was, “He did.”

Objections and exceptions were timely made to that issue upon the grounds that it was too general and not supported by the pleadings or evidence. Further, because the issue does not confine the inquiry to the allegations nor evidence as to the nature and manner of receiving an injury, relied upon by plaintiffs.

The assignment is well taken. The inquiry was too general in'its nature and gave the jury the opportunity to speculate upon any injuries sustained by deceased, whether they be those plead and proved or not. The issue should have been so framed as that an answer would determine whether or not Watkins was injured on the date inquired about, in the manner alleged in the petition. It is fundamentally true that a plaintiff must recover, if at all, upon the grounds relied upon in his pleadings. Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552; Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972, writ dismissed, correct judgment; McGrew v. St. Louis, S. F. & T. R. Co., 32 Tex.Civ.App., 265, 74 S.W. 816, writ dismissed; Texas Indemnity Ins. Co. v. Pemberton, 'Tex.Civ.App., 9 S.W.2d 65. In Traders & Gen. Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391, application for writ dismissed upon agreement of parties, the court submitted in separate special issues each of the injuries alleged to have been sustained, and complaint was made that in doing so the contentions of plaintiffs were unduly emphasized. This court held that there was no error in submitting the issues separately, and that to have submitted them all in one inquiry would have rendered the question open to a valid objection, if urged. When the instant case was tried, there were two supplemental petitions and one trial amendment before the court. The record discloses that another trial amendment was attempted to be filed and that it was refused by the court. With the record in this condition it is not improbable that there will be amendments in the pleadings and little aid can be rendered by this court at a new trial, by suggestions of how the alleged injuries should be submitted, further than what has been said.

Defendant’s seventh proposition, based on its eighth assignment of error, reads: "“Where an employee received an accidental injury in May, 1933, and thereafter lives approximately four years and seven months before he dies from tuberculosis, all compensation accruing from the date of the accident until his death belongs to the employee, and the beneficiaries suing under the death statute are only entitled to recover 360 weeks’ compensation, less the number of weeks of disability insurance accruing to the deceased, and are not entitled to recover 360 weeks’ compensation dating from the time of the death.”

The foregoing proposition is urged under defendant’s plea of res judicata, referred to by us in the early part of this discussion.

The rights of the parties to this suit are controlled exclusively by the provisions of our Workmen’s Compensation Act. It is by virtue of the following provisions of the Act that plaintiffs had a right of recovery. Article 8306, Section 8, R.C.S., declares: “If death should result from the injury the association hereinafter created [insurance carrier in this case] shall pay the legal beneficiaries of the deceased employé a weekly payment equal to sixty per cent of his average weekly wages, but no£ more than $20.00 nor less than $7.00 per week, for a period of three hundred and sixty weeks from the date of the injury.”

Section 8b of the same article provides: “In case death occurs as a result of the injury after a period of total or partial incapacity, for which compensation has been paid, the period of incapacity shall be deducted from the total period of compensation and the benefits paid thereunder from the maximum allowed for the death.”

The reco'rd'before us in this case, as well also the record in the case of Texas Employers Ins. Ass’n v. F. J. Watkins, Tex.Civ.App., 90 S.W.2d 622, of which we may take cognizance, disclose that after F. J. Watkins, now deceased, had received the accidental injuries in May, 1933, he filed with the Industrial Accident Board his claim for compensation, claiming total and permanent disability; that pending a hearing on that claim before the Board, Watkins and the association entered into a compromise settlement of his claim for compensation. By the terms of the compromise, Watkins was to receive $100 as payment in full for all compensation to which he was entitled. On June 9, 1933, the Board approved the compromise settlement, _ the money was paid to the employee by the association and a release’ of all liability was executed by Watkins. Thereafter, Watkins filed an application with the Board requesting that its order of approval of the compromise settlement be set aside for the reason that the' purported settlement had been brought ■ about by fraud upon the part of the association, and if not that, then by mutual mistake of the parties. The application was denied by the Board and Watkins appealed to the district court of Wichita County, Texas. Upon an amended pleading filed to the October, 1933, term of the district court, Watkins sought to set aside the order of the Board, in which it refused to set aside its former order approving the compromise settlement between him and the association. In addition to setting aside the order of the Board, Watkins sought in the same suit to recover compensation for total permanent disability. A jury trial resulted in a judgment giving him the relief sought. The association appealed from .that judgment and this court reversed that judgment and rendered the cause for the association. Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 90 S.W.2d 622. Application for writ of error was dismissed by the Supreme Court, for grounds stated, not important here, reported in same styled case, 130 Tex. 383, 110 S.W.2d 1153.

It will be seen from what we have said that Watkins, during his lifetime, collected (even though by means of what perhaps was an improvident compromise.) all compensation to which he was entitled prior to his death on November 26, 1937. The period of time between the date of injury and the date of death was less than 360 weeks.

We think it was the intention of the Legislature when passing the Workmen’s Compensation Act to provide that an injured employee covered by the Act could never recover compensation for more than 401 weeks at the rate fixed by the Act, applicable to the particular case then under consideration. Article 8306, Sect. 10, R.C.S.; Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900.

This brings us to the question of determining the maximum number of weeks’ compensation the plaintiffs would be entitled to recover. Should it be for 360 weeks after the date of the death of the husband and father, or should it have been for 360 weeks from the date of the injury after deducting the total period of incapacity for which compensation had been paid (by the compromise settlement above mentioned) ?

The earliest adjudication of the question before us that we have been able to find appears in the case of Texas Employers’ Ins. Ass’n v. Morgan, Tex.Com.App., 295 S.W. 588, 589. There an employee had compromised and settled with the insurance carrier all of his claims for compensation for injuries received. After quoting sections 8 and 8b of Article 8306, supra, the court said: “Of course, as insisted by plaintiff in error [the carrier] the award of the board, unless in some way legally set aside, has the force of a judgment, and is binding on all parties. And likewise we think an agreement and settlement by the payment of a reasonable sum, when approved by the board, has the same force and effect, and, in either event, if the sum paid equals the maximum allowed to the beneficiaries in the case, there could be no recovery by them, perforce of the statute itself, for such payments, whether by award of the board originally or by voluntary agreement with the approval of the board.” It was contended, in that case, by the insurance carrier that since the employee had made a complete compromise settlement that even though he died' from his injuries before the expiration of the maximum period in which he could have been compensated, the beneficiaries had no cause of action under the statute. The court held against the contention so made ; but held that the employee could not make such a contract or compromise that would affect the rights of the beneficiaries, insofar' as their rights were controlled by statute. In that connection this language was used, 295 S.W. at page 590: “Clearly, an agreement of compromise and settlement between the employee and the association can be no more comprehensive than the award of the board, and it is equally clear the award does not affect the beneficiaries, except as to the extent of deductions for payments made thereunder.”

Swain v. Standard Accident Ins. Co., Tex.Civ.App., 81 S.W.2d 258, affirmed by the Supreme Court in same styled case, 130 Tex. 277, 109 S.W.2d 750, involved a claim by beneficiaries after the employee had been paid compensation for a time. The employee compromised her claim for compensation, which settlement was approved by the Industrial Accident Board. She subsequently applied to the board to. have the award approving compromise set aside; this the board declined to do; before time expired in which she could' perfect her appeal to the district court, she. died as a result of the accidental injury. The beneficiaries, simply perfected her appeal and prosecuted the suit in court. This was held to be an improper course to-pursue; that question is not involved in the instant case. But applicable to the point in the instant case, the court held that at the death of the employee as a result of the injury, in effect, á new cause of action arose in favor of the beneficiaries which must, be instigated and prosecuted in the manner provided by law. That the-compensation to which the employee was. entitled was the property and right of the-employee during the entire compensable - period, if she lived that long. That she-could compromise that claim in any way which met the approval of the board. But any such compromise or settlement does. not affect the statutory claim of the beneficiaries after'the death of the employee,. 81 S.W.2d at page 260, “except that the-amount of compensation paid the employee for disability is deductible from the amount of compensation to which the beneficiaries would be entitled under the statute, as provided in section 8b, Art. 8306.”

In Oilmen’s Reciprocal Ass’n v. Coe, Tex.Civ.App., 29 S.W.2d 430, the employee had received in a lump sum compensation for the injuries received and thereafter died as a result of the injuries. The beneficiaries sued, alleging their rights under the statutes and recovered judgment, which the appellate court affirmed. In the opinion, the well recognized rule of law was applied, and it was held that on the death of the employee, who had been paid the lump sum for permanent total disability, compensation for death, in a beneficiaries’ suit, was calculated by deducting, actual payments made to the employee from the maximum amount recoverable by the beneficiaries for the death of the employee. Citing authorities, to which we also refer.

A somewhat similar question to that here involved was before the U. S. Circuit Court of Appeals and reported in Western Casualty Co. v. Hunt, 5 Cir., 69 F.2d 129. Certiorari was granted by the U. S. Supreme Court, but subsequently dismissed, 293 U.S. 530, 55 S.Ct. 207, 79 L.Ed. 639. In that case, Hunt, the employee, received an injury on March 25, 1931. Claim was allowed and compensation was awarded by the board. The employer recognized liability for compensation and continued to pay the employee full wages until he died on July 25, 1931. Under a custom existing between the employer and . employees, the salary payments covered the full amount of' compensation due each week and the excess was a gratuity from the employer. The employee agreed to this arrangement. At the death of the •employee, his beneficiaries sued for the full statutory 360 weeks’ compensation, dating from the time of the injury. Recovery was had by the - beneficiaries, as prayed for. The judgment was reversed and the court used this language, 69 F.2d at page 130: “After Hunt’s injury, Armour & Co. [employer] was under no obligation to pay him his salary in full, and it was perfectly proper for the parties to agree that $20 of the salary paid him should be considered as a liquidation of the compensation due him under the Workmen’s Compensation Law. He lost 'nothing by the arrangement. On the contrary, he gained a great deal. While Hunt was alive, his wife and children had no claim to compensation. The cause of action continued in their favor after his death, but they were bound by any agreement he made or course of conduct in which he acquiesced during his life. They were no"t entitled to receive compensation for the full period of 360 weeks, but only so much as remained unpaid. Texas Employers Ins. Ass’n v. Morgan (Tex.Com.App.) 295 S.W. 588. We think appellant was entitled to deduct $20 per week from the compensation awarded appellees for the period Hunt was paid by Armour & Co.”

Applying the rules announced in the foregoing authorities, it is apparent to us that plaintiffs in this case would not be entitled to recover compensation for the time Watkins lived and for which time he made settlement with the carrier during his life. To do so, in our judgment, would be a double recovery, for which we find no provisions in the Workmen’s Compensation Act to justify. So long as Watkins lived, the beneficiaries had no right of compensation. He made a settlement with the defendant carrier of insurance to cover that period. It is true the amount received was small as compared to what it would have been had award been made by the board for 60% of his average weekly wage; but such compromise settlement as it was, had the sanction of the .board, and after a trial to the district court and appeal to this court, the compromise settlement was never set aside, but confirmed by this court. Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 90 S.W.2d 622, supra. The trial court erred 'in this case in awarding to the beneficiaries a recovery of compensation for the full period of 360 weeks, beginning with the date of the death of Watkins. ' ■

It is our opinion and we so hold that plaintiffs’ recovery should have befen for 360 weeks’ compensation, beginning with the date of the injury, deducting the number of weeks between the date on which the accident occurred and that on which the employee died^ he having been paid for that time under the terms of his compromise settlement with defendant.

Because of the condition of the pleadings, we cannot render judgment for plaintiffs in the amounts which it appears from the testimony they should have recovered. This is true for one reason, that by the pleadings only an average weekly wage of $12 was alleged, whereas the evidence indisputably shows that Watkins’ monthly wage was $75, and plaintiffs endeavored to file a trial amendment to meet the facts. This was denied them by the court. We think they should have been permitted to do so. As the pleadings now stand, they would not support a judgment for a greater amount than $7 per week, the minimum allowed by law. The ends of justice would be best served by a reversal of the judgment and a remand for another trial to permit the parties to amend the pleadings, if they desire. Sun Oil Co. v. Gunter, Tex.Civ.App., 125 S.W.2d 338, and cases cited. The assignment of error raising the point must be sustained.

Defendant’s fourth proposition complains of the action of the court in permitting the introduction of testimony to show the unfairness of the compromise settlement between Watkins and the defendant. We think this point is well taken. That question was foreclosed in the previous suit of Texas Employers Ins. Ass’n v. Watkins, supra.

"Propositions 5 and 6 complain of argument made by plaintiffs’ counsel in regard to the compromise settlement. From what we have said, the matter of the compromise settlement is removed from this cause, and the same question should not arise upon another trial.

Eighth proposition complains because the court submitted an issue inquiring if the insurance policy covering Wolf & Hull was intended by the parties to inure to the benefit of F. J. Watkins. The trial amendment filed raised the issue and there was evidence to support it. No error is presented by this assignment. By .the ninth proposition it is complained that the court erred in permitting the trial amendment just referred to. There is no merit in the contention under the facts presented by the record, and it likewise is overruled.

Tenth proposition challenges the correctness of the manner in which certain negative issues were submitted, when each was followed by a request from the court to answer “It was” or “It was not”. It is claimed that the quoted words following an issue destroy and negative the right of a complaining party to have the question answered from a preponderance of the evidence. We are cited to the case of Fidelity & Casualty Co. v. Van Arsdale, Tex.Civ.App., 108 S.W.2d 550, and other cases which apparently involved similar questions. We have had occasion twice to pass upon the point involved and have held adversely to defendant’s contention. See Traders & Gen. Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391, writ dismissed upon motion of all parties; Traders & Gen. Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, writ dismissed, judgment correct. The order of the Supreme Court in the Huntsman case, supra, was in effect an overruling of the principle announced in the Van Arsdale case, supra, and other cases by the Courts of Civil Appeals somewhat analogous to it. We therefore overrule the assignment in the instant case.

The eleventh proposition presented by defendant contends that special issue 8 was duplicitous. It reads: “Do you find from a preponderance of the evidence that manifest hardship and injustice would result to the plaintiffs unless the compensation which may be due them, if any, shall be awarded in a lump sum ? ”

The evidence in this case shows that the widow was without, funds. That she was a tenant farmer; that she and her sons have rented land and since the injury to her husband, they had endeavored to earn a living in this manner; that if payment should be made to her in a lump sum she would use the money to buy a small farm and thus procure a place for her minor sons to work and support the family; none of these matters were in any way contested by defendant. Under rather similar conditions, we have heretofore held that such an issue was not open to the objection here urged. Traders & Gen. Ins. Co. v. Blancett, Tex.Civ.App., 96 S.W.2d 420, writ dismissed; Southern Underwriters v. Shipman, Tex.Civ.App., 97 S.W.2d 370, writ dismissed. See, also, Speer’s Special Issues, Sect. 604. The assignment is overruled.

For the reasons herein stated, the judgment of the trial court is reversed and the cause remanded for another trial, in line with our conclusions herein expressed.

Reversed and remanded.


author: WALKER, Chief Justice.

text:
    LONG v. DUMESNIL.
    No. 3584.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 21, 1939.
    Morris & Bennett, of Beaumont, for appellant.
    W. B. West and C. W. Wiedemann, both of Beaumont, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted by appellant, Ed Long, from a judgment of the district court of Jefferson county against him in favor of appellee, M. J. Dumesnil, for the amount of a promissory note, an open account, and foreclosing a chattel mortgage lien executed by appellant, to secure the payment of the indebtedness evidenced by the judgment. The trial was to the court without a jury. The trial court filed conclusions of fact and law supporting all the allegations of appellee’s petition. The record is before us without a statement of facts.

Appellee plead that appellant was due him the sum of $208.40 on an open account for “goods, wares and merchandise.” The account attached to the petition as an exhibit, made such by proper allegations, recited:

“Beaumont, Texas. Nov. 10, 1938.
M Ed. Long
In account with
Farmers’ Market
Meats, poultry, groceries, vegetables and
Bakery Goods
Corner Park & Fannin Phone 7743’

This introduction to the account was followed by an itemized statement, rendered day by day of the amount of the account but the statement did not reflect the nature of “the goods, wares, and merchandise”— nothing was shown except the amount of the daily account. The court did not err in overruling appellant’s general demurrer against the petition. The general rule is that a defective statement of a cause of action, if amendable, is not subject to the general demurrer. Western Medical Arts Bldg. Corp. v. Bryan, Tex.Civ.App., 5 S.W.2d 862; Northwestern National Ins. Co. v. Woodward, 18 Tex.Civ.App. 496, 45 S.W. 185; Garrett et al. v. Kelley et al., Tex.Civ.App., 6 S.W.2d 414; Cunningham v. Wheatly, 21 Tex. 184.

The mortgaged property was described as follows in the mortgage: “Being all that certain barbecue stand situated at 704 Neches St. in the city of Beaumont, Jefferson County, Texas, known as Ed. Long’s Barbecue stand No. 2 and containing lunch counters, 1 cash register, carving knives, electric ice boxes and refrigeration system, barbecue cooking pits and all necessary equipment that is now used in connection with said stand No. 2. Also what is known as Ed. Long’s Barbecue Stand No. 1, situated at Forsythe Streetj Beaumont, Texas, and containing all counters, electric ice boxes, and refrigeratiori system, cash registers, knives, dishes, tables, chairs and all other character of property used in the operation of said business including the lease in and upon both locations of said business No. 1 and No. 2; also 1 Dodge pickup Truck now in use in connection with the said Ed. Long Barbecue stand No. 1 and Barbecue stand No. 2 and .the said Dodge Pickup Truck being the same Dodge Truck heretofore purchased from Jackson Motor Company of Beaumont, Texas.”

The description was not fatally defective ; it was sufficient to support the judgment of foreclosure. H. O. Wooten Gro. Co. v. Wade Meat Co., Tex.Civ.App., 37 S.W.2d 1090; Harding et al. v. San Saba Nat. Bank, Tex.Civ.App., 13 S.W.2d 121; Handley v. McDonald & Ely Gin Co., Tex.Civ.App., 9 S.W.2d 372.

The judgment of the lower court is affirmed.


author: MURRAY, Justice.

text:
    DAVIS v. CITY OF SAN ANTONIO et al.
    No. 10771.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1939.
    Rehearing Denied Jan. 10, 1940.
    Marcus W. Davis and Jack Davis, both of San Antonio, for appellant.
    J. I. Kercheville, Henry B. Dielmann, and J. Arthur Sandlin, all of San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted by Jack Davis, as a taxpaying citizen of the City of San Antonio, and on behalf of other taxpayers similarly situated as himself, against the City of San Antonio, its Mayor, Commissioners, Auditor and Deputy Treasurer, in their official capacity, seeking to enjoin the City from issuing funding bonds in the sum of $430,260.99 for the purpose of paying certain warrants issued to the policemen and firemen of the City, covering the amount due them for the years 1936, 1937 and 1938, under Senate Bill No. 89 of the 45th Legislature,' Regular Session, c. 173, Vernon’s Ann.P.C. art. 1583, sometimes referred to as the “Spears Bill,” and further seeking to enjoin the City from using certain sums collected as back taxes for the years 1936, 1937 and 1938, for any other purpose than the payment of tire policemen and firemen until such policemen and firemen are fully paid.

The trial court sustained a plea in abatement and a general demurrer to plaintiff’s petition and dismissed the cause, from which judgment Jack Davis has prosecuted this appeal.

The record shows that the proposed funding bonds, together with the transcript of the record concerning such bonds, have not been presented to the Attorney General of this State, and, therefore, appellant’s petition for an injunction to enjoin the issuance and sale of these funding bonds was prematurely brought and the trial judge properly sustained a plea in abatement directed to such petition. Arts. 709 and 4398, Vernon’s Civil Statutes, make it the duty of the Attorney General of this State to examine all bonds and further provide that such bonds shall not be issued or sold unless and until they are approved by the Attorney General. This Court will presume that if the bonds involved herein are not properly issued they will not receive the approval of the Attorney General, and therefore will not be registered and offered for sale. Johnson v. Town of Refugio, Tex.Civ.App., 56 S.W.2d 674; Smith v. Reaves, Tex.Civ.App., 208 S.W. 545; Bird v. Alexander, Tex.Civ.App., 294 S.W. 305.

Appellant contends that even though his suit to enjoin the issuance and sale of the bonds was prematurely brought that he was, nevertheless, entitled to an injunction restraining the City and its officers from using the back tax money collected for the years 1936, 1937 and 1938, for any other purpose than the payment to the firemen and policemen of the sums due' them for these years, under the Spears Bill. We overrule this contention. Appellant does not allege that the City will use this back tax money until after it has payed the firemen and policemen in full. After the firemen and policemen have been fully paid the City would then have the right to divert this back tax money to the payment of other debts and obligations of the City.

It will be borne in mind that this is not a suit by the firemen and policemen to establish their priority to the funds on hand, collected from the delinquent taxes for the years 1936, 1937 and 1938, but, on the other hand, a suit by a person who has no claim on the funds other than such rights as he has by reason of being a taxpayer in the City. He is not entitled to an injunction concerning the funds on hand upon the allegation that the City will, after the firemen and policemen have been fully paid, transfer these funds to the general fund and use the same' for current expenses during the year 1939. It is clear that after the firemen and policemen have been paid in full the City would have a legal right to transfer such funds to the general fund and use the same for current expenses. Charter of the City of San Antonio, § 52.

The judgment is affirmed.


text:
    TYLER et al. v. HOUSTON OIL CO. et al.
    No. 3571.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1939.
    Rehearing Denied Jan. 3, 1940.
    Geo. E. Holland, of Beaumont, and John T. Lindsey, of Port Arthur, for appellants.
    Williams, Lee, Sears & Kennedy, of Houston, for appellees.
   WALKER, Chief Justice.

The action was in trespass to try title. Under their plea of ten year limitation, ap-pellees claimed an interest of 160 acres of land in a tract of 575 acres out of the Wm. McFarland Lewis league in Newton county. Judgment in favor of appellants included only the actual enclosures. The jury returned an affirmative answer to the following question: “Question No. 1. Do you find from a preponderance of the evidence that the Defendant, Meredith (Hog) Tyler has had and held peaceable and adverse possession of any part of the five hundred and seventy-five (575) acre tract of land described in Plaintiffs’ Original Petition in this cause, cultivating, using and enjoying the same continuously for any period of ten consecutive years prior to the filing of this suit on February 12th, 1938?”

By assignments of error and propositions appellants assert that, on the verdict of the jury, the judgment in their favor should have been for their claimed interest of 160 acres.

On the undisputed evidence, appellee owned the record title to the land and, during appellants’ limitation period, was in possession of all of the 575 acres except appellants’ enclosures, by and through its tenants. This possession restricted appellants to their actual enclosures. Haynes v. Texas & N. O. R. R. Co., 51 Tex.Civ.App. 49, 111 S.W. 427, 428; Sutton v. Carabajal, 26 Tex. 497, 500; Evitts v. Roth, 61 Tex. 81, 84; Parker v. Baines, 65 Tex. 605, 608; Evans v. Houston Oil Co. of Texas, Tex.Civ.App. 211 S.W. 605; Id., Tex.Com.App., 231 S.W. 731; Furlow v. Kirby Lbr. Co., Tex.Civ.App., 53 S.W.2d 642; Powell Lumber Co. v. Medley, Tex.Civ.App., 127 S.W.2d 520.

• Other parties were involved in the litigation, and other issues were adjudicated by the judgment, but appellants’ brief puts in issue only the propositions discussed.

The judgment of the lower court is in all things affirmed.