author: TIREY, Justice. ALEXANDER, Justice

text:
    CARLILE v. PEEVY et al.
    No. 2276.
    Court of Civil Appeals of Texas. Waco.
    Feb. 15, 1940.
    Rehearing Denied March 21, 1940.
    Williford, Williford & Bond, of Fair-field, and L. W. Shepperd, of Groesbeck, for appellant.
    Geppert, Geppert & Victery, of Teague, for appellees.
   TIREY, Justice.

Mrs. L. E. Peevy, joined pro forma by her husband, brought this suit for mandamus to compel appellant, Miss Shelma Car-lile, County Superintendent of Public Schools for Freestone County, Texas, to approve a contract of employment made by a majority of the trustees of Pyburn Common School District No. 30 in Freestone County with appellee as an' elementary teacher for a term of seven consecutive months for the school term of. 1939-40. The cause was tried before the court without the intervention of a jury and the court ordered the writ of mandamus to issue, requiring the appellant to approve the contract. This is an appeal from said judgment.

Plaintiff’s petition is ample to support the judgment awarded to her. A plea of intervention was filed by the Pyburn Common School District, by and through a majority of its trustees, in which they set out that they entered into the written contract in question with the plaintiff to teach in said school, and they adopted the pleadings of plaintiff on which she went to trial, and asked that plaintiff’s contract be approved, and that she have judgment as prayed for in her pleadings. The defendant answered substantially to the effect that in refusing to approve the contract in question she acted in her official capacity and in the discharge of her duties as such, and in doing so she exercised that discretion vested in her by the statutes of the State of Texas, and that she was not acting arbitrarily nor dictatorily, but was acting for reasons deemed by her to be good and sufficient. She further averred that the said District had been classified by the County Board as an eleven grade school, which classification was and is necessary in order to include all pupils in said District remaining untransferred, thereby giving said school the greatest number of scho-lastics possible, and averring that appellee holds a certificate entitling her to teach in the “elementary grades” only. She further alleged that the contract in question was ill-advised and that it would entail a waste of public funds, and that her refusal to approve same was and is to the best interests of the pupils, patrons, taxpayers and citizens of Pyburn Common School District No. 30 in Freestone County, Texas.

The court in its judgment found substantially the following facts: That on the 26th of April, 1939, the said School District, acting by and through a majority of its school board, made a written contract with plaintiff, employing her as an elementary teacher in said school for a term of seven consecutive months of the school term for the year 1939-40, at a salary of $595; that said contract is in the regular form prescribed, and that said contract is legal as to both form and substance;- that plaintiff is the holder of a valid permanent first grade1 teacher’s certificate; that she is a person of good moral character and. is in every way qualified to teach in the elementary grades of the public schools, and that she is an efficient teacher; that said School District was by the County School Board of Freestone County duly classified to teach the elementary grades for the school year 1939-40; that before the execution of the written contract in question said school board, acting by a majority of its trustees, decided that only the elementary grades would be taught in said school for white children for the year 1939-40 school term; that plaintiff duly filed her teacher’s certificate and her teacher’s contract with the county superintendent, as provided by law, and that the county superintendent, on the 2d of October, 1939, without legal excuse and without legal cause but acting arbitrarily, did disapprove said written contract; that plaintiff duly appealed to the County School Board of Trustees for Freestone County, Texas, and that said Board considered said appeal and in acting thereon failed and refused to order the superintendent to approve said contract and did make and enter an order affirming the action of the county superintendent in disapproving said written contract; that plaintiff elected to appeal from the decision of the county board to the District Court of Freestone County, and that she duly perfected her appeal to said court; that the approving of the written contract in question will not create a deficiency in the school fund of said common school district; that at the time of the execution of the written contract in question neither the plaintiff nor the trustees who executed the contract for said Board knew that any of the patrons of said District desired that said school be contracted for the said term to. an adjoining school district, and that the contract in question was made in good faith; that the plaintiff is the only teacher employed by said school district to teach the elementary grades of the white school; that the school board instructed the plaintiff to begin teaching on October 2, 1939, and has been since said date engaged in the performance of her contract.

The action of the trial court in awarding a writ of mandamus has been assailed on two grounds:

“1. Mandamus will not lie to compel appellant to approve appellee’s contract to teach in the Pyburn School District No. 30, for the ensuing scholastic year, appellant being a public officer and such approval calling for the exercise of the judgment of appellant on matters of fact.
“2. The Legislature of the State of Texas has clothed appellant, she being County Superintendent of Public Instruction of Freestone County, Texas, with supervisory .power over the contracts between trustees,teachers and others as a check upon the powers of such trustees to make contracts and if in the opinion of appellant, supported by any pertinent matter before her at the time, she acted in refusing to approve appellee’s contract, her action will not be disturbed in-any court.”

The question presented by appellant’s brief raises one of some difficulty due to the fact that the decisions of the Courts of Civil Appeals considering the point in question appear to us to be in direct conflict. The statutes governing the point in question are Articles 2678a, 2682, 2690, 2693, 2709, 2749, 2750 and 2750a, Vernon’s Ann.Civ.St. Article 2693 provides, in part, that the county superintendent “shall examine all the contracts between the trustees and teachers of his county, and if, in his judgment, such contracts are proper, he shall approve the same; provided, that in considering any contract between a teacher and trustees he shall be authorized to consider the amount of salary promised to the teacher.” In discussing this statute, the San Antonio court, in Thomas v. Taylor, 163 S.W. 129, 131, writ refused, said: “If his examination of such contracts would- amount to nothing but a perfunctory duty, there -would be no reason for the law, and, taking the section in question alone, there can be no hesitation in declaring that the superintendent of public instruction is clothed with full power and discretion to examine and decide as to the propriety of every contract between trustees and teachers, and to approve or reject them as his sound judgment may direct.” The foregoing construction has been followed by the El Paso Court of Civil Appeals in the case of Vanlandingham v. Hill, 47 S.W.2d 641. The same question was again before the San Antonio court in Duncan v. Bowman, 22 S.W.2d 683, writ dismissed. Other decisions implying that the statutes in question vest in the county superintendent judicial discretion are: Hill v. Smithville Independent School Dist., Tex.Civ.App., 239 S.W. 987; Boyles v. Potter County, Tex.Civ.App., 177 S.W. 210; Ratcliff v. Buna Independent School Dist., Tex.Civ.App., 46 S.W.2d 459; Caviel v. Coleman, 72 Tex. 550, 10 S.W. 679, 680; Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067. A contrary doctrine has been announced by the Galveston court in Miller v. Smiley, 65 S.W.2d 417, writ refused, and by the Texarkana court in White v. Porter, 78 S.W.2d 287.

Notwithstanding the findings the trial court made in his judgment, the record is uncontradicted that the county superintendent had before her at the time she refused to approve the contract in question a petition signed by forty of the resident' citizens of said school district, in which they asked her not to approve said contract, and set up that they had petitioned the county board of education during the . year 1939 to discontinue the white school in such district and contract such white school to the Teague Independent School District; that said petition also set out that out of the thirty-three white scholas-tics in said district, twenty-three had been transferred out of the same, and that all of such twenty-three scholastics are now enrolled and attending the Teague school except two children who have moved out of the district; and also set out that a majority of the patrons of such district desire that all children attend the Teague school where they will have nine months school and where better educational opportunities can be had than in said common school district. In addition, thereto, .she had before her a petition signed by forty-two patrons of said school district, in which they set out that they wished to discontinue the white school in said district and contract all classes to the Teague Independent School District for the school term 1939— 40. In addition thereto, the record seems to be uncontroverted that the minutes of the school board of trustees of Freestone county, Texas, show “the classification of the Pyburn school was changed from classification given it on May 27, 1939, and' that it was classified-, on October 2, 1939, to teach eleven grades.” There is nothing in the record to indicate by whom the classification was made on May 27, 1939, nor what it was. It is true, however, that there was testimony uncontradicted to the effect that the Pyburn School Board had before it entered into the contract in question with the plaintiff of date April 26, 1939, agreed to teach only the elementary grades up to the seventh grade. The record is uncontroverted that there were thirty-three white scholastics in the district and that twenty-three had been transferred to the Teague district, and that of the ten white scholastics not transferred, two of the same were children above the elementary grades. In addition thereto, she (the county superintendent) had .before her the budget for the year 1939-40, and she testified (without contradiction) that there was no set-up in said budget for paying any salary for a white teacher for said school term. In connection with the budget, she had before her the certificate of R. A. Pickett and J. D. Henderson, two of the trustees of said district, dated September 30, 1939j which was as follows: “This is to certify that we, R. A. Pickett and J. D. Henderson,’ trustees of the Py-burn Common School District #30, Freestone County, Texas, were in the office of Shelma Carlile, County Superintendent of Public Instruction, Freestone County, Texas, at which time she went' over the budget for Pyburn district with us very fully and that we did not recommend any change in the budget which she had estimated for our district.”

The" contract of the plaintiff was filed with the County Superintendent on September 28, 1939. In addition thereto, the evidence is uncontradicted that when plaintiff opened the school she had six pupils and at the time of the trial she had two pupils.

Under Article 2678a the classification of schpols is vested, solely, in the county board of school trustees. Article 2690 of the Statutes, in part, provides: “The county superintendent shall have, under the direction of the State. Superintendent, the immediate supervision of all matters pertaining to public education in his county. He shall confer with the teachers and trustees and give them advice when needed, visit and examine schools, and deliver lectures that shall tend to create an interest in public education. He shall spend four days each week visiting the schools while they are in session, when it is possible for him to do so. He shall have authority over all of the public schools within his county, except such of the independent school districts as have a scholastic population of five hundred or more.” (Italics ours.) In Article 2693, it is provided that the superintendent shall examine all of the contracts between teachers and trustees of his county, “and if, ½ his judgment, such contracts are proper, he shall approve the same; provided, that in considering any contract between a teacher and trustees he shall be authorized to consider the amount of salary promised to the teacher (Italics ours.) In Article 2749, it provides, among other things, that “they [meaning the trustees] shall contract with teachers and manage and supervise the schools, subject to the rules and regulations of the county and State Superintendents.” Article 2750a provides: “That trustees of any common school districtor consolidated common school district shall have authority to make contracts for a period of time not in excess of two (2) years with principals, superintendents, and teachers of said common school districts, or consolidated common school districts, provided that such contracts shall be approved by the County Superintendent. No contract may be signed by the trustees until the newly elected trustee has qualified and taken the oath of office.” It will be noted that each of Articles 2693, 2750 and 2750a provide that the contracts of the trustees shall have the approval of the county superintendent. It will also be noted that Article 2693 further provides “that in considering any contract between a teacher and trustees he shall be authorized to consider the amount of salary promised to the teacher.” In Article 2749 it is provided that “they [meaning trustees] shall contract with teachers and manage and supervise the schools, subject to the rules and regulations of the county and State Superintendents.” We think it is singular that the legislature, in the same chapter with Articles 2690 and 2693, expressly gave supervisory powers to the district court in certain cases. Article 2682 provides: “The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts.” No such authority appears to have been given to the district court in the management of the school and the selection of its teachers. Surely, the legislature must have had in mind some duty and discretionary power on the part of the county superintendent in cases where fact issues arose between the trustees and the patrons of-the' school. We believe that a careful consideration of these statutes shows that the .legislature intended to give to the county superintendent discretionary power with reference to the supervision and administration of the common public schools. That seems to have been the construction placed upon the statutes in question by the San Antonio and El Paso Courts of Civil Appeals, and we believe the reasons therefor are sound and that the weight of authority is in support thereof. We realize that the decision of the Galveston court in Miller v. Smiley, 65 S.W.2d 417, writ refused, and of the Texarkana court in White v. Porter, 78 S.W.2d 287, are in apparent conflict with the construction placed on the statutes under consideration by the San Antonio and El Paso courts, but in the Smiley case the teacher’s contract in question had been signed by all three of the trustees and thereafter two of the trustees made and executed another contract with another teacher and the county superintendent approved the latter contract and refused to approve the first contract on the ground that the first contract was invalid as a matter of law. In the White v. Porter case, the sole question was the legality of the contract that was presented to the county superintendent. We are frank to admit that we are unable to reconcile the holding (and certainly, the statements) contained in the Smiley and White cases with the holding of -the San Antonio court in Thomas v. Taylor, supra, and the El Paso court in Vanlandingham v. Hill, supra. However, we are of the opinion that the rule announced in Thomas v. Taylor, supra, is in accord with the spirit and expressed intention of the legislature in the provisions it has made for the conduct and supervision of the common schools of the state, and we are of the opinion that the statutes herein discussed have clothed the county superintendent with discretionary power. We therefore hold that the county superintendent had the right and power to reject the contract in question if her sound judgment so directed her to do. Moreover, the classification of the common schools seems to have been delegated solely to tlie county board of school trustees, under the provisions of Article 2678a of our statutes, and that classification having been made by said county board aforesaid, it was -binding on the county superintendent, and the record is uncontroverted that the plaintiff’s certificate authorized her to teach only the elementary grades.

Appellant’s assignments of error are therefore sustained and the judgment of the trial court is reversed and judgment here rendered refusing the mandamus prayed for by appellees.

ALEXANDER, Justice

(dissenting).

I am unable to agree with the holding in the majority opinion. The only material question to be determined is whether a county superintendent is vested with discretionary authority to approve or disapprove a teacher’s contract in accordance with what he conceives to be the best interests of the school, or whether he is required to approve such contract when same has been lawfully executed.

Revised Statutes, art. 2749, expressly provides that the trustees of the school district shall have the management and control of the public school and public school grounds, and shall have the authority to employ and to contract with teachers and to manage and supervise the schools. This authority, however, is subject to certain limitations. For example, this same Article 2749 provides that the trustees in making contracts with teachers shall not create a deficiency debt against the district. Article 2750 requires that the contract shall bind the teacher to teach such school for the time and money specified therein. Article 2885 gives the different classes of teachers’ certificates; and Article 2887a, Vernon’s Ann.Civ.St., lists the subj ects ' that may be taught by teachers holding a certificate of a certain class. Article 2750a provides that no contract may be signed by the trustees until the newly elected trustee has qualified. The authority of the county superintendent to approve teachers’ contracts will be found in Articles 2750 and 2693. Article 2750 provides, in part, as follows:- “Trustees of a district shall make contracts with teachers to teach the public schools of their district, but the compensation to a teacher, under a written contract so made, shall be approved by the county superintendent before the school is taught, stating that the teacher will teach such school for the time and money specifi■ed in' the contract:” ' Article 2693 provides, in part, as- follows: “He [the county superintendent] shall examine all the contracts between the trustees and teachers of his county, and if, in his judgment, such contracts are proper, he shall, approve the same; provided, that in considering any -contract between -a- teacher and trustees he shall' be authorized to consider the amount of salary promised to the teacher.”

I think that these- statutes, when construed together, mean that the trustees of the district are vested - with the' authority to manage and control the schools, including the right to- employ and contract with -teachers, and that this right is absolute and exclusive-so-long; as the contract, is lawfully executed. The county superintendent is given the authority to approve the contract for the purpose of assuring its lawful execution. If the contract has not been executed by a majority of the trustees, after the newly elected trustee has qualified, or if the contract does not bind the teacher to teach the school for the time and money specified therein, or if the salary promised would create a deficiency, or if the certificate held by the teacher does not authorize him to teach the subjects for which he is employed or to draw the salary which is promised him, then in either' such event the superintendent has a right to refuse to approve the contract; but if the contract meets all of the above requirements and is otherwise lawful, the county superintendent has no right to refuse to approve the contract merely because he does not think it to be for the best interests of the school.

In the case at bar, there is no doubt about the legality of the contract. It was entered into by a majority of the trustees, after the newly elected trustee had qualified. There are ample funds on hand so that a deficiency will not be, created. The county school board classified the school in May, • as it was required to by Article 2678a, Vernon’s Ann.Civ.St. It was classified as an elementary school. The teacher holds a certificate authorizing her to teach the subjects and to receive the Salary provided for in the contract, and the contract binds her to teach .the school for the time and money provided for -therein, and appears otherwise to be in lawful form. The county superintendent has refused to approve the contract, not becáuse of any illegality therein but merely because she and a majority of the patrons have concluded, over the protest of the trustees, that it would be to the best, interests of the school to contract the teaching to a nearby district. I am inclined to the view tha-t it would have been to the best interests of the school to have so contracted the teaching to another school, but this is not a .matter for us, nor for the county superintendent, to decide. That is a responsibility imposed exclusively on the trustees. If the patrons are dissatisfied with the management of the present board, their remedy is to elect more efficient trustees. My views on the law question here involved are fully sustained- by Miller v. Smiley, Tex.Civ.App., 65 S.W.2d 417, writ refused. See also White v. Porter, Tex.Civ.App., 78 S.W.2d 287; 37 Tex.Jur. 1041.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    NATIONAL AID LIFE ASS’N v. DRISKILL et al.
    No. 1991.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1940.

      Chrestman, Brurididge, Fountain, Elliott & Bateman, of Dallas, for appellant.
    Joe E. Childers, of Abilene, for appel-lees.
   FUNDERBURK, Justice.

This suit was brought by Mrs. H. D. Driskill j.oined (purportedly) “pro forma” by her husband, H. D. Driskill, against National Aid Life Association, to recover $303.03, insurance • upon the life of Mose Franklin, the father of Mrs. Driskill, in accordance with the provisions of a benefit certificate issued by the defendant to said Mose Franklin; deceased. The defendant duly filed a plea of privilege to be sued in Tarrant County. Plaintiffs filed a controverting affidavit to the plea of privilege, seeking to sustain venue in Callahan County .under exceptions. 23, 27, 28 and 28a, to the general venue provision of Vernon’s Ann.Civ.St., art. 1995. In said controverting plea, the plaintiffs described themselves as “Mrs. H. D. Driskill and H. D. Driskill, husband and wife, plaintiffs in the above entitled and numbered cause” etc.

The issues relating to privilege were tried with the issues relating to liability. In a non jury trial the court overruled the plea of privilege arid awarded the plaintiffs recovery of $277.77, from which judgment the defendant has appealed.

In our opinion no error is shown in the action of the court in overruling the plea of privilege. The nature of the action' as shown by the pleadings was that 'of a suit brought' against a Statewide mutual assessment company,-based upon an alleged right or claim arising from, or predicated upon, a policy or- contract'issued or made' by the defendant. Under the undisputed evidence the place of residence of both the policy holder and the beneficiary was Callahan County. That, we think, was suffix cient to sustain the venue under exception 28a.

The' challenge of the judgment upon the merits of the case presents some difficulty. It is certain that at one time Mose Franklin, the insured, was a member of the National Aid Life Association which is to say that at one time the benefit certificate issued to him was in full force and effect. The certificate, in part, provided: “In event of the death of. the above named member [Mose Franklin] while this certificate is in full force and effect [subject to other stated -conditions] * * * said National Aid Life Association hereby agrees to pay a sum of money as hereinafter stated * * *. ” (Italics ours) A-further provision was the agreement “that the above named member [Mose Franklin] will pay a regular monthly assessment of $5.00 which assessment shall be due and payable at the office of the Association on the first day of each and evéry calendar month during the life of the member. The member shall be given a grace period of fifteen days within which to make such payment. Failure to pay such assessment within the grace period shall void this contract, unless the same shall be officially reinstated by said Association * * *. ” \ (Italics ours) Still another provision of the contract was: “All assessments shall be paid only to the home office of the Association in Oklahoma City, except that 'the first monthly assessment may be páid to and collected by thé Association’s agent delivering" the 'certificate. In no event and under no -circumstances shall any person except' an agent at the home office be authorized to receive any subsequent assessments under this certificate and the member and beneficiary thereof agree that violation of this1 clause shall have no binding effect upon, the Association and especially that it shall not effect a valid reinstatement or continuance, of this benefit certificate.” (Italics ours)

It is apparent from these provisions that the question of whether or not, at the time of the death of Mose Franklin, the certificate was in full force and effect was dependent upon whether (1) all assessments had been .paid within 15 days after their due date, or (2) if not, all defaults had been waived, or (3). the contract, if it had ever lapsed, had been “officially reinstated by said- association.” (There was no question but that all assessments had been paid, except one due April 1, 1938; that if that was not paid there was no waiver of its non payment, and that if the contract had lapsed there, had been no reinstatement of it.) The question is presented: Did the plaintiffs have the burden of proof to show that the assessment of April 1, 1938, was paid as provided in the contract; or, was the burden of proof upon the defendant Association to show that said assessment was not paid? The answer to this question is dependent upon another, namely: Was the required due payment of the assessments a condition precedent to the association’s liability upon the contract? All authority is consistently to the effect that the burden of proof is upon the insured or beneficiary to establish conditions precedent to the insurer’s liability upon a contract of insurance. As said in American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864, by way of quotation from Cooley’s Briefs on Insurance, vol. 3, p. 1964: “The law places the burden upon the insured of alleging and proving a compliance with all the conditions precedent provided for in the policy on which the right of recovery rests before a recovery can be had thereon.”

The promise to pay insurance was, among other things, conditioned upon proof satisfactory to the association of the death of said member. It would never be argued that such was not a condition precedent. The promise to pay insurance was also conditioned upon the fact that the death of the member occurred “while this certificate is in full force and effect.”' Was not this also a'condition precedent? In our opinion it was. The promise to pay could not be proved by the provisions of the certificate, as, of course, it was necessary to do 'without disclosing the qualification that such promise was only to be performed upon the condition that the member died “while the certificate was in full force and effect.”

There is apparently much conflict of authority upon the question of whether the payment of'premiums provided for in contracts of insurance constitutes condition precedent. Undoubtedly, we think, the payment-of premiums may by.the terms of a particular contract, be a condition precedent; and yet by the terms of another contract not a condition, precedent. As, for example, the obligation to pay- an assessment may itself be conditioned upon the assessment’s being made and notice thereof given by the insurer. 'In such a case the payment of .premiums is. not a condition precedent. Haywood v. Grand Lodge, Tex.Civ.App., 138 S.W. 1194; Winters Mut. Aid Ass’n v. Corum, Tex.Civ.App., 297 S.W. 238; Wichita Home Ins. Co. v. Montgomery, Tex.Civ.App., 4 S.W.2d 1041.

In the instant case the obligation to pay $5 as a so-called assessment on, or within the IS days after, the first day of each month was unqualified. The contract made no provision for notice. The certificate itself was notice of the amount and due date of each so-called assessment. The above cited cases are, therefore, not authority upon the question under consideration.

A fair test of whether the payment of premiums or assessments constitutes a condition precedent is whether such payment must be alleged by the plaintiff. In Corpus Juris, it is said: “Payment of the premiums must be alleged.” 33 C.J. p. 86, § 798. Again: “The petition must show a valid contract * * * and that it was subsisting and in force at the time of the loss.” 33 C.J. p. 83, § 796; Supreme Lodge v. Johnson, Tex.Civ.App., 168 S.W. 1010; Grand Lodge v. Walker, Tex.Civ.App., 86 S.W.2d 839. In Noble v. Southern States Mut. Life Ins. Co., 157 Ky. 46, 162 S.W. 528, 530, it was said: “ * * * that the payment of premiums was a condition precedent to the continuance of the risk”; and further, “That being true, it was necessary for plaintiff to allege payment or some adequate excuse for nonpayment.” The extent of the conflict, or apparent conflict, of authorities appears from the note to Topinka v. Minnesota Mut. Life Ins. Co., 189 Minn. 75, 248 N.W. 660, 95 A.L.R. 739.

It is our conclusion that the better reasoning supports the view as applicable to contract provisions like those here involved that the due payment of the so-called assessments is by the terms of the contract made a condition precedent to liability.

The plaintiffs "introduced evidence which must here he taken to be true, showing that in accordance "with a long continued course of dealing Mose Franklin, acting by the beneficiary, Mrs. Driskill, mailed a check covering the amount of the April 1, 1938, assessment to the Association in an envelope properly addressed, with the required postage • prepaid, and at a time when in due course of the mails it should have been received on or before the due date. The rule is: “When a letter or other mail matter is properly addressed and mailed with postage prepaid there is a re-buttable presumption of fact that it was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mails.” 22 C.J. p. 96, § 36.

In the absence of evidence to the contrary, we have no doubt that plaintiffs, in the manner stated, met their burden of proof to show payment of the assessment in question. There was, however, direct -and positive evidence contradicting the fact of payment. How" would such evidence affect the otherwise existing presumption? Would the presumption continue to1 function as evidence; or, would it wholly cease to operate? Under the authorities this question is, to say the least, not free from difficulty.

Two opposing views are stated in Corpus Juris as follows: “It has been held that evidence of non receipt of mail matter, even though it consists of the addressee’s positive denial of receipt, does not nullify the presumption, but leaves the question for the determination of the jury under .the circumstances, with such weight given to the presumption as they think it entitled to, the burden of proving receipt remaining throughout upon the party who asserts it; but, on the other hand there are authorities which have asserted the addressee’s positive denial of the receipt of mail matter renders of little weight or even entirely overcomes the presumption of receipt”, etc. 22 C.J. 102, § 44.

McCormick & Ray propound this question: “Is a presumption evidence or something to be weighed by the jury along with the evidence?” Their answering conclusion is: “Most of the legal writers find no difficulty in answering the question in the-negative. Moreover, this appears to be the view of a majority of the courts including those of Texas.” McCormick & Ray, Texas Law of Evidence, p. 58, sec. 37. In a. note to Jefferson Standard Life Ins. Co. v. Clemmer, 103 A.L.R. 185, it is said: “Although there is somé authority to the contrary, and much confusion and loose language on the subject, the weight of authority supports the view with respect to pre-^ sumptions generally, that a legal presumption is not in the nature of evidence and, of' itself, has no probative force.” Supporting-this view is W.O.W. v. Alexander, Tex.Civ.App., 239 S.W. 343. Apparently to the-same effect are Supreme Camp, W.O.W., v. McNulty, Tex.Civ.App., 103 S.W.2d 867; Bibby v. Bibby, Tex.Civ.App., 114 S.W.2d 284; Moore v. Wooten, Tex.Com.App., 280. S.W. 742; American Central Ins. Co. v. Heath, 29 Tex.Civ.App. 445, 69 S.W. 235. To the contrary is Wichita Valley R. Co. v. Davis, Tex.Civ.App., 275 S.W. 169, and perhaps American Nat. Ins. Co. v. Callahan, 125 Tex. 222, 81 S.W.2d 504. A good many decisions are difficult to appraise as, for instance, Largen v. State, 76 Tex. 323, 13 S.W. 161, 163, wherein it is said that “presumptions cannot be indulged in opposition to facts which show that the ' fact sought to be established by presumption can have no existence.” See also Jester v. Steiner, 86 Tex. 415, 25 S.W. 411.

We deem it unnecessary, how•ever, to express a definite opinion upon the specific question of whether when a fact •otherwise presumed, is contradicted by di-' rect evidence, the presumption does or does not continue to have evidentiary effect. There seems to be general agreement that there is no shifting of the burden of proof. Whether after the introduction of evidence showing the Association did not receive the check the presumption continued to have evidentiary value or not, the burden remained upon the plaintiffs to establish by a preponderance of the evidence that the check was received. St. Louis S. W. R. Co. v. Parks, 97 Tex. 131, 76 S.W. 740; Mexican Central Railway Co. v. Lauricella, 87 Tex. 277, 28 S.W. 277, 47 Am.St.Rep. 103. The only evidence was that before ■stated. Giving conclusive effect to all the -evidence, tending to show the assessment was paid by receipt of the check, except the presumption only, two different inferences were possible: (1) The check was received, (2) the check was lost in the mails and, therefore, not received. If the presumption was rebutted in the sense that it was destroyed, then we should unhesitatingly conclude that as a matter of law the ■evidence was insufficient (wanting in essential respects) to show that the check was received. But even if the presumption continued as a matter to be considered in the nature of evidence, the burden of proof, we think, was nevertheless not discharged. There was required some evidence which being believed by the fact finder favored the inference that the check was received over the inference that'it went astray in the mails. It seems to us that the Association produced all the evidence possible upon the issue to show that the check was not received. It may be answered that the witnesses were interested witnesses. But the Association did not have the burden of establishing by a preponderance of the evidence that the check was not received. The burden was upon plaintiff to show by a preponderance of the evidence that it was received. There is absent any preponderance of the evidence to show receipt of the check by the association. We have several times had occasion to say, in effect, that “when, in a given case, the existence, or not, of an ultimate fact issue can only be found as an inference from evidentiary facts, the party having the burden of proof upon the issue must produce evidence to warrant the jury in believing that an inference of the issuable fact is more probable or reasonable than an inference of its nonexistence.” Paris & M. P. R. Co. v. Russell, Tex.Civ.App., 104 S.W.2d 650, 651; Texas Pacific Fidelity Co. v. Hall, Tex.Civ.App., 101 S.W.2d 1050, 1053; Metropolitan Cas. Ins. Co. v. Woody, Tex.Civ.App., 80 S.W.2d 771; Dallas Joint Stock Land Bank v. Colbert, Tex.Civ.App., 127 S.W.2d 1004. In Houston & T. C. R. Co. v. Harris, 103 Tex. 422, 128 S.W. 897, 899, the court said: “The burden being on a plaintiff to establish the defendant’s negligence, it sometimes happens, especially in actions for injuries which resulted in death, that the facts adduced leave the cause of the injury unexplained, or in doubt, so that it may as well be attributed to negligence of the injured person as to that of .the defendant. The plaintiff should fail, not, as seems to have been assumed in some of the older eases * * * because he must exclude the assumption of contributory negligence of the person injured, but because he must prove that of the person sought to be charged as a proximate cause of the injury, which he does not do so long as he leaves his evidence equally consistent with either hypothesis.”

From this same principle it is deducible, we think, as a sound legal proposition, that where the burden of proof rests upon a party to establish a particular issue of fact by a preponderance of the evidence; and in the attempted discharge of such burden he produces no direct evidence but only evidence from which the fact in issue may be inferred, but which evidence at the same time supports with equal force an.inference contrary to the fact in issue;' if the fact in issue be contradicted by- direct and positive' evidence,' even though given by interested witnesses; and there is an entire absence of any evidence tending to show that the inference of the fact in issue is more reasonable or probable than an inference to the contrary, the issue of fact, as a matter of law, is not raised by the evidence.

From these conclusions it follows that in our opinion the judgment of the court below should be reversed and judgment be rendered to the effect that the plaintiffs take nothing. It is accordingly so ordered.


author: GRISSOM, Justice.

text:
    GOLDEN v. STEVENS.
    No. 1985.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1940.
    Rehearing Denied March 29, 1940.
    Nelson & Brown, of Lubbock, and Truett Smith, of Tahoka, for appellant.
    Carl Rountree, of Lamesa, for appellee.
   GRISSOM, Justice.

J. S. Golden, the owner of a farm in Dawson County, obtained a temporary injunction against V. W. Stevens and another restraining them from interfering with plaintiff, or his agents or employees, in the cultivation of a crop on his land for the year 1936. Stevens filed a cross-action against Golden, alleging that Golden had rented the land to him for the purpose of farming it for said year on the usual basis; that is, the payment by the tenant of ¾. of the cotton and of the other crops raised on the rented premises; had ousted him and prevented him from making a crop thereon to his damage in the sum of $1,245. Defendant alleged that, during the year for which he had the land rented, defendant had cultivated some of the land, had planted 30 acres in cotton, 25 acres in corn, and other crops; that plaintiff .by force and intimidation had forced defendant to desist from making further effort to carry out the alleged lease contract and make a crop on the premises, and that plaintiff had obtained a writ of injunction restraining. defendant from cultivating said land and from going upon the land.

The cause was submitted to the jury upon special issues. The jury found' that plaintiff rented the farm to defendant Stevens for the year 1936; that the value of Stevens’ share of the cotton that he would have raised on the land in controversy during said year, if he had not been prevented by plaintiff, was $249.25; that the value of the corn was $267; that the value of the maize was $36; that the value of the garden and truck product's was $3. In answer to special issue No. 6 the jury found that “the amount of rental payments which defendant would have received from the Government had he been permitted to remain on the premises' in controversy as a tenant for the year 1936” was $63. The court entered judgment that plaintiff’s title to the land in question be quieted, that the defendant other than Stevens be discharged with his costs, and judgment for the defendant Stevens on his cross-action against Golden for the sum of $618.25, the aggregate of the items heretofore stated. From said judgment, plaintiff has appealed.

'The evidence is sufficient to support the jury’s finding that plaintiff rented the farm to Stevens for the year 1936. Special issue No. 2 reads as follows: “What do you find from a preponderance of the evidence would have been the reasonable market value of the defendant’s share of the cotton he would have raised on the land in controversy during the year 1936, if you find he would have raised any, had he been permitted to remain on said premises for said year, over and above the expenses he would have been put to in cultivating, harvesting and preparing for market all of said cotton crop?” The issues as to the value of the corn and maize defendant would have raised had he been permitted to farm the land for said year were submitted in the same manner by issues Nos. 3 and 4. ■ Plaintiff objected to said issues 2, 3, and 4 “for the reason that the term ‘market value’, as used in special issues 2, 3, and 4, is nowhere defined so as to apprise the jury as to what is meant thereby.” The action of the court in overruling said objection to said issues is made the basis for plaintiff’s first three assignments of error.

In support of plaintiff’s contention that the judgment should be reversed because of the court’s failure to define “market value” in said three issues, plaintiff cites the following cases: Panhandle & S. F. Ry. Co. v. Burt, Tex.Civ.App., 50 S.W.2d 922; Tidal Western Oil Corp. v. Blair, Tex.Civ.App., 39 S.W.2d 1103; Texas Pipe Line Co. v. Bridges, Tex.Civ.App., 39 S.W.2d 1109.

Defendant’s counter proposition is to the effect that not all legal terms used in submitting special issues need be defined in every case; that it is only yvhen under the facts presented definitions are necessary • to enable the jury to properly pass upon the questions submitted that such definitions are required. That this is particularly true where the testimony relative thereto is not conflicting.

Defendant testified that he had been farming since 1925; that he had had experience in estimating the yield per acre of cotton, corn and maize; that from his experience as a farmer he was able to examine a crop and .estimate its yield; that he was familiar with the market for cotton, corn and maize at the time his crops from the rented premises would have been harvested and ready for sale; that cotton at said time was selling for about 12½ to 13⅞⅞ per pound; that he sold cotton at that time which was grown on land immediately adjacent to the rented premises ; that he had 9 acres of cotton on land immediately adjacent to the rented premises ; that on said 9 acres he raised 8 bales of cotton; that the cotton he would have raised would have sold for 12^ per pound; that he gathered corn from the adjoining premises on similar land; that the corn made 18 to 20 bushels per acre; that he knew what the corn sold for; that it sold for 65‡ a bushel or $24 a ton; that said prices were the average prices paid during the fall of that year. Similar testimony was given as to the maize crop. He testified that maize was selling there at $18 a ton. Defendant went into considerable detail in his testimony about the number of acres of each crop planted and cultivated, the nature of the soil, the yield, what it would cost to harvest and sell it, and explained how he arrived at the basis for the damages which he claims.

It is very evident that in the trial of the case the parties were considering, and the testimony dealt with, what the crops which defendant would have raised would have sold for at the time they would have been harvested. In other words, it is evident that in the trial of the case the jury, in considering the term market value could have had under consideration only one thing; that is, what such products would have then sold for, The damages requested by defendant amounted to $1,245. The jury assessed his damages at $618.25. Defendant sued for damages on cotton in the sum of $530; the jury fixed said damages at $249.25. Defendant sued for $433 for loss of his corn crop; the jury fixed said damages at $267. He sued for damages because of loss of his maize crop in the sum of $144; the jury fixed said damages at $36. There was no other evidence as to the price for which said products would have sold, other than as hereinbe-fore stated. In other words, it would seem that the jury found the value of each .of said crops to be less than the only testimony showed it to be. If it be conceded that the term “market value” is a legal term which should ordinarily be defined, and which a trial court, out of an abundance of caution, should in any event define to prevent the question from arising, nevertheless, as applied to the facts of the instant case, we think it apparent that the failure of the court to define the term was not reasonably calculated to injure plaintiff. On the contrary, we think it is demonstrated that he was not thereby injured. Our statements in Ed S. Hughes Co. v. Clark Bros. Co., Tex.Civ.App., 63 S.W.2d 230, 232, and Maryland Casualty Co. v. Bryant, Tex.Civ.App., 84 S.W.2d 492, 497, are applicable here. Said assignments are overruled. Graham-Brown Shoe Co. v. Snodgrass, Tex.Civ.App., 257 S.W. 632, 635; Texas & P. Ry. Co. v. Short, Tex.Civ.App., 62 S.W.2d 995, 998, writ refused; Traders’ & General Ins. Co. v. Nunley, Tex.Civ.App., 80 S.W.2d 383, 385, writ refused; Runnels Chev. Co. v. Clifton, Tex.Civ.App., 46 S.W.2d 426, 429; General Motors Acceptance Corp. v. Killingsworth, Tex.Civ.App., 54 S.W.2d 266, 269; National Life & Acc. Ins. Co. v. Robledo, Tex.Civ.App., 93 S.W.2d 1198, 1200; Gifford-Hill, Inc. v. Jones, Tex.Civ.App., 99 S.W.2d 656, 658; Harris v. Thornton’s Dept. Store, Tex.Civ.App., 94 S.W.2d 849, 851.

The judgment, insofar as it award•ed to defendant $63 for rental payments which defendant would have received from the Government for participation in the •Government crop reduction program, cannot be sustained. There is no evidence of probative force that plaintiff ever agreed for his land to be placed in such program. Defendant’s testimony is to the effect that every time the. subject was mentioned plaintiff refused to so agree, but said that • question would have to be determined later when the program was made known.

The item of $63 is eliminated from the judgment. As so modified the judgment is affirmed.


author: FOLLEY, Justice.

text:
    CATCHING v. BOGART.
    No. 5109.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1940.
    Rehearing Denied March 11, 1940.

      R. A. Baldwin, of Slaton, for appellant.
    Griffin & Morehead, of Plainview, for appellee.
   FOLLEY, Justice.

This is a suit in trespass to try title brought by the appellant, G. J. Catching, against the appellee, Walice Bogart. The appellant sought recovery for the title and possession of two tracts of land in Hale County, Texas, and for rentals thereon, the first tract containing 29 acres in Survey 19 and the second containing 5 aores of Survey 12, of the Subdivision of Leagues Nos. 1, 2, 3 and 4 of the Sabine County School Lands, situated in Hale County, Texas.

The appellee answered by a plea of not guilty, specially pleaded the ten year statute of limitations, Vernon’s Ann.Civ.St. Art.'5510, claiming peaceable and adverse possession of the land, and by way of cross-action interposed a plea in trespass to try title against the appellant in which he further asserted title by ten year limitations and in connection therewith alleged that at all times material to this controversy the appellant, his predecessors in title, and all the respective owners of the lands adjacent to the tracts in controversy, had acquiesced in and agreed upon the boundary line and fence enclosing the land in controversy within appellee’s enclosures as the true and correct boundary line between the adjoining tracts of land.

The appellant recovered judgment for the title and possession of the 5 acres in Survey 12, and for $16.92 rentals thereon, but was denied a recovery for the 29 acres in Survey 19 and rentals thereon, the appellee having prevailed on his plea of peaceable and adverse possession of such land for a period of ten years. From this judgment this appeal is prosecuted. The complaint herein is only with reference to the court’s refusal to render judgment for the appellant for the 29 acres in Survey 19, together with rentals thereon.

It was agreed between the parties that J: P. Carr was the common source of title and that $1 per acre per year was the reasonable rental value of the land which is the subject of this controversy. In 1907 J. P. Carr became the owner of Surveys 11, 12, 19 and 20 of the Sabine County School Lands, aggregating 2300 acres, situated in Hale County, Texas. These, four Surveys formed a rectangle, Surveys 20 and 11 being respectively north of Surveys 19 and 12, Survey 20 being the northwest tract of the rectangle, Survey 11 being the nottheast tract, and Surveys 19 and 12 being respectively the southwest and southeast tracts of the body of land. All four surveys have a common corner in about the center of the rectangle. The two north tracts, 20 and 11, contain 574.4 acres each, and the two south tracts, 19 and 12, contain 575.6 acres each.

J. P. Carr and wife by two deeds, one dated March 16, 1914 and the other December 19, 1922, conveyed to their son, H. R. Carr, all of Survey 20 and the north 422 varas of Survey 19, aggregating about 700 acres of land. • By two deeds both dated April 16, 1932, H. R. Carr conveyed the land mentioned to the appellee, Walice Bogart. By deed of December 17, 1930, J. P. Carr conveyed to Roy Irick all of Survey 11 and the north 422 varas of Survey 12, aggregating also about 700 acres of land. Irick on March 24, 1931 conveyed the latter 700 acres to the appellee. Therefore, since April 16, 1932, the date of the conveyances from H. R. Carr to" the ap-pellee, the appellee has been the record owner of the north 1400 acres of the four surveys of land. Also,-on December 17, 1930 J. P. Carr conveyed to Roy Irick the remainders of Surveys 19 and 12 constituí-' ing about 900 acres' of the original four surveys and containing all the land of the four tracts not included in the north 1400' acres conveyed to the appellee in the deeds abové mentioned. On September 8, 1932 Irick conveyed the south 900 acres of Surreys 19 and 12 to L. P. Jeffreys, who on May 16, 1935 conveyed such land to the appellant, G. J. Catching. Since the latter date the appellant has been the record owner of the south 900 acres of the four surveys. In all of the deeds above mentioned the division line between the north 1400 acres and the south 900 acres of the four surveys was recognized as being 422 varas south of the south boundary lines of Surveys 20 and 11.

The controversy herein has arisen by virtue of an old fence which is not situated on the boundary lines indicated in the deeds. Instead of beginning at a point in the west line of Survey 19, 422 varas south of the southwest corner of Survey 20, as specified in the deeds heretofore mentioned, the fence actually begins at a point 146.8 varas south thereof and runs eastward across Surveys 19 and 12 crossing the division line indicated by the deeds at a point in the northeastern portion of Survey 12, and ending at a point in the east line of Survey 12 which is 33 varas north of. the northeast corner of appellant’s lands as indicated in the deeds. This discrepancy in the fence line with the boundary line shown in the deeds has the effect of including 29 acres of Survey 19 and 5 acres of Survey 12, not included in appellee’s deeds, within the enclosure of appellee’s lands. This discrepancy also has the effect of including an acre, more or less, ill Survey 12 of ap-pellee’s land within appellant’s enclosure not indicated in the deeds, but to which small portion the appellant makes no claim. For many years before J. P. Carr sold any of the property adjacent to the fence he owned the land on both sides of the fence in question and during such period the position of the fence was, perhaps, an unimportant factor. The fence was admittedly more than twenty years old and no issue is presented as to the possession by appellee, and those under whom he claims, of the 29 'acres of land in Survey 19 for the required length of time under the ten year statute but .'the chief controversy is whether or not such possession was adverse as to the appellant and those under whom he claims. The jury found in response to Special Issue No, 1 that the ap-pellee and those under whom he claimed had had and held continuous, peaceable and adverse possession of all the land in controversy, including the 29 acres which is the subject of this appeal, for a term of at least ten consecutive years prior to the filing of this suit on April 9, 1938. . By virtue of this finding the court rendered judgment for the 29 acres of Survey 19, but did not render judgment for the appellee for the 5 acres in Survey 12, which was admittedly by reason of the fact that Roy Irick owned both Surveys 11 and 12 during part of the ten year period and thus could not claim limitations as to the 5 acres in Survey 12 as against himself. As above stated, it was not until March 24, 1931 that Irick conveyed to the appellee the land in Survey 11 adjacent to the 5 acres of Survey 12 in controversy and therefore the appellee had not possessed the 5 acres of Survey 12 for a period of ten years nor was the possession theretofore of Irick such as that it could have been adverse since he owned the land in Surveys 11 and 12 on both sides of the fence in question.

In several propositions the appellant attacks the judgment relative to the 29 acres by reason of the alleged insufficiency of the testimony to show such adverse possession as is necessary to recover under the ten year statute.

In this connection the appellant asserts that the' court should have given a peremptory instruction in his favor by reason of some testimony relative to negotiations between the parties about moving the fence back to the line called for in the field notes in the deeds. These negotiations occurred partly at about the time the suit was filed and partly soon thereafter, and long after the ten year period of limitations, if. any, had accrued, and, in our opinion, amounted to no more than an effort to compromise the controversy.

The testimony shows that at the time of the trial J. P. Carr was deceased and that H. R„ Carr was without the State of Texas. Therefore, the testimony as to the adverse possession is partly circumstantial as far as H. R. Carr is concerned, but we think the testimony as a' whole is sufficient to support the finding of the jury on adverse possession for ten years so far as the 29 acre tract in Survey 19 is concerned. The record shows, as above stated, that H. R. Carr acquired title to the balance of the north 700 acres of Surveys 20 and 19 from his father in 1922. Although his deed did not include the '29 acres in controversy the fence at that time enclosing- the southern boundary of -his land did include the 29 acres. The testimony shows that after 1922 H. R. Carr possessed and used not only the 700 acres included in his deed but also the 29 acres within his fence. During all the time thenceforth, the 29 acres were possessed, used and occupied as a unit with the 700 acre tract north thereof, and such tract was so used by H. R. Carr until he sold it to the appellee since which time the appellee has exercised the same sort of use and occupancy.

Trüett Pool, a brother-in-law of H. R. Carr, testified'that in the spring of the year 1929 he moved on the land north of the fence as the tenant of IT. R. Carr and that previous thereto H. R. Carr had worked the land himself. ' When H. R. Carr sold the land, Pool then became the tenant of the appellee in which capacity he has since remained. ■ At the time he became H. R. Carr’s tenant in 1929, J. P. Carr owned the land south of the fence which was later donveyed to Irick and from Irick to Jeffreys and from Jeffreys to the appellant. At no time during his tenancy of the land, including the 29 acres in controversy, did Pool pay any rent to J. P. Carr, Roy Irick, L. P. Jeffreys or the appellant, nor did they make any claims upon him for any rents. On the contrary the rent was paid to H. R. Carr while he owned the 700 acres and thereafter to the appellee.

The witness N. C. Hix, banker and real estate dealer who assisted H. R. Carr in the sale of the 700 acres to the appellee, testified that it was understood between the parties that the land being conveyed extended to the fence and that the fence was pointed out to the appellee as the southern boundary line. In this connection, incidentally the deed conveying the land adjacent to the land in controversy contained a recitation that “the Fence of the SouthSide of said. lands is conveyed to Grantee, * * * This witness also testified that as far back as 1924 he was on the land and that J. P. Carr pointed out this particular fence as being the boundary line. At this time in 1924 R. R. Carr had some sheep on the land north of the fence which land at that time was in grass. Hix was familiar with the land and not only knew that J. P. Carr and H. R. Carr recognized the fence as the boundary line but further knew that Irick and Jeffreys used only the land south of such fence at the time they each owned the land now owned by the appellant.

W. A. Richter, agent for the Abernathy National Farm Loan Association, took an application for a loan from J. P. Carr in 1924 upon the land in Surveys 11 and 12. At such time, in company with J. P. Carr, he made an inspection of the land and the latter showed him the fence in question as being the south line of the lands upon ■which' the loan was made. There is not any testimony in the record to show that any of the owners of any of the lands involved, prior to the time appellant purchased his land, ever had any knowledge that the fence in question was not the division line between the lands, and so far as the record shows such knowledge was only obtained by the appellant upon his having the land surveyed in 1937 by the County Surveyor of Hale County, which was some two years after the appellant purchased his land in 1935. Under all the facts and circumstances of this case it is our opinion that the testimony was ■sufficient to support the finding of the jury on the issue of adverse possession in favor of the appellee as set out above. McAnnally et al. v. Texas Co. et al., 124 Tex. 196, 76 S.W.2d 997; McCabe et al. v. Moore, Tex.Civ.App., 38 S.W.2d 641; Jobe et al. v. Osborne et al., 128 Tex. 509, 97 S.W.2d 939; Foster et ux. v. Persinger, Tex.Civ.App., 30 S.W.2d 378, writ refused; Craig v. Cartwright, 65 Tex. 413; Thompson et al. v. Richardson, Tex. Com. App., 221 S.W. 952; Cox et al. v. Sherman Hotel Co., Tex.Civ.App., 47 S.W. 808; Boy et al. v. McDowell, Tex.Civ.App., 207 S.W. 937; Young v. City of Lubbock, Tex.Civ.App., 130 S.W.2d 418.

The court submitted to the jury Special Issue No. 2, which was as follows: “Do you find from the preponderance of the evidence that the fence in question had been recognized by those who owned the land now owned by the plaintiff prior to the time he acquired the same, and those who owned the land lying North of Plaintiff’s land, as the division and boundary line between their said lands.” This issue was answered in the negative. The appellant asserts that such finding conflicts with the finding of adverse possession in the first issue and therefore presents fundamental error in the judgment rendered. It is pur opinion that this finding was only to the effect that there was not an agreed boundary line between the respective property owners and is not determinative of the issue of adverse possession. Moreover, it was an issue in keeping with the defensive pleading of the appellee wherein he alleged that the fence had been recognized by the various owners as the division line between their respective lands. The appellant contends that the answer is a finding that the appellee and his predecessors in title and possession did not claim the fence, as the boundary line. We hardly think such a construction is a reasonable one under the pleadings and facts of this case. Under the language of the issue all of the respective owners prior to the appellant’s purchase of his land would have had to recognize the fence as the boundary line before the jury would have been warranted in answering the question in the affirmative. In other words, if all of the owners of the land north of the fence had recognized the fence as the line and only one or more of the owners of the land south of the fence had failed to do so, still the jury would necessarily have been compelled to answer the issue in the negative. In our opinion, the issue, as. framed and answered, does not negative the contention of the appellee that he and his predecessors so recognized the fence as the boundary line. If the issue finds any fact at all, it simply establishes the failure ’of the respective owners of the land on each side of the fence to agree upon .the fence as the line of demarcation between their lands. It certainly does not destroy ap-pellee’s theory of adverse possession nor the jury’s finding thereon.

The appellant requested special issues as to whether or not H. R. Carr claimed the land in controversy by adverse possession as against his parents prior to the time J. P. Carr conveyed to Roy Irick the south 900 acres of Surveys 19 and 12. The court refused these issues and the appellant assigns such action as error. This particular matter, we think, was embraced in Special Issue No. 1 and its answer. In that issue the jury found, in effect, that H. R. Carr had held adverse possession of the land as against his parents and everyone else during whatever portion of the ten year period before April 9, 1938 that H. R. Carr occupied the land. The court was therefore not required to submit the same subject matter again to the jury, especially in the absence, of any evidence that the possession of H. R. Carr as against his parents was any less adverse than that against all others.

The appellant further ■ asserts that the court erred in refusing his request for the submission of an issue as to whether H. R. Carr abandoned1 his adverse claim to the land in controversy when he moved from the land in 1929 and placed á tenant in possession. We have searched the record and failed to find such an issue prepared and tendered to the court, such request having been made in appellant’s objections to the court’s charge wherein, in effect, he requested the court to prepare and submit such an issue. If such 'request was sufficient there was no evidence raising the issue. The testimony does show that H. R. Carr moved to New Mexico some time about 1929,' but his tenant, Truett Pool, thereupon moved- upon the land, possessed and occupied the same for his landlord, H. R. Carr, and paid all rents to the latter until H. R. Carr sold the land to the appellee in 1932. We think it is elementary that one may claim adverse possession through his tenant without being bodily present upon the land.

We have examined all the assignments and propositions of the ■ appellant and we think what we have said disposes of all of them. We find no reversible error in the record and the judgment of the trial court will be affirmed.


author: ALEXANDER, Justice.

text:
    GUARANTY BOND STATE BANK, NORTH ZULCH v. DONAHO.
    No. 2307.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1940.

      Bennett & Bennett, of Normangee, for appellant.
    Brownlee & Brownlee and A. H. Mene-fee, all of Madisonville, for appellee.
   ALEXANDER, Justice.

Final .judgment was rendered in the above cause on October 12, 1939, and motion for ■ new trial’ overruled October 21, 1939. Supersedeas bond was filed November 7,' 1939. Although the time for filing the transcript in this court expired sixty days after the date of the order overruling motion for new trial, the- appellant has wholly failed to file such transcript. The appellee filed herein on the ISth of February, 1940, his motion for affirmance, accompanied by transcript, including supersedeas bond.,

Under the provisions of R.S., Art. 1841, the appellee is entitled to have the judgment of the trial court affirmed, including affirmance of the judgment against the sureties on the supersedeas bond. It is accordingly so ordered.


author: JOHNSON, Chief Justice.

text:
    ROESER & PENDLETON, Inc., v. STANOLIND OIL & GAS CO.
    No. 5461.
    Court of Civil Appeals of Texas. Texarkana.
    March 15, 1940.
    Rehearing Denied March 21, 1940.

      Thompson & Barwise, Sterling C. Holloway, and Luther Hudson, all of Fort Worth, for appellant.
    Turner, Rodgers & Winn and F. J. Scur-lock, all of Dallas, and Clay Tallman and Donald Campbell, both of Tulsa, Okl., for appellee.
   JOHNSON, Chief Justice.

This suit was filed by appellee, Stanolind Oil & Gas Company, in trespass to try title to the ⅞ leasehold mineral interests in ten acres of land located in Marion County, against Sterling C. Holloway, M. H. Overlees, and Roeser & Pendleton, Inc. Holloway and Overlees disclaimed any interest in the land and were dismissed from the suit. Roeser & Pendleton, Inc., answered by- general demurrer, general denial and a plea of not guilty. Trial to the court without a jury resulted in judgment for plaintiff, from which defendant has appealed.

The facts material to the issues involved in the appeal are not disputed. Flesh and Hootkins constitute the common source of title. On or about December 17, 1936, M. H. Overlees, a broker, negotiated the sale of the lease from Flesh and Hootkins to ap-pellee. Because appellee did not want the fact known that it was at that time purchasing minerals in that particular area, and though appellee was paying the entire consideration for the lease, the name of M. H. Overlees, with his consent, was inserted as grantee in the conveyance from Flesh and Hootkins, and on the same occasion Overlees executed a conveyance with the name of the grantee left blank. The deed executed by Flesh and Hootkins to Overlees and the deed executed by Over-lees to blank grantee were attached to a draft drawn on appellee for $3,000, the purchase price of the land, in favor of Flesh and Hootkins, through the Fort Worth National Bank and was deposited in the First National Bank in Dallas for collection. In due course the draft was paid by appellee and the instruments were delivered to it. Overlees never paid or agreed to pay any portion of the purchase money and has never claimed to own any right, title or interest in the land, but merely held the naked legal title in trust for appellee. On December 31, 1936, appellee filed the deed executed by Flesh and Hoot-kins to Overlees for record in the office of the County Clerk of Marion County, and it was duly recorded.

On March 30, 1929, prior to' the matters above mentioned, Roeser & Pendleton, Inc., obtained a judgment against M. H. Over-lees for the sum of $4,202.02. Execution was issued on the judgment and levied upon certain personal property, from the sale of which the judgment was credited with $57.93 and the execution duly returned. On February 8, 1937, an abstract of the judgment was 'filed, recorded and indexed in Marion County. On February 25, 1937, an alias execution was issued and levied on the land here involved as the property of M. H. Overlees. At the time the abstract of judgment was filed and at the time the levy under the execution was made, Roeser & Pendleton, Inc. (appellants here), had no notice of appellee’s interest in the land. On March 9, 1937, or some date prior thereto, the name of appellee, Stanolind Oil & Gas Company, was inserted as grantee in the deed above referred to as executed to blank by Overlees, and the instrument was on that date filed for record and recorded in Marion County, and appellant was on the same 'date given actual notice of ap-pellee’s interest in the land. Thereafter, on April 6, 1937, a sale was made under the levy above mentioned, to appellant for $1,000, credited on its judgment against Overlees;

Appellant contends that by recording its abstract of judgment at a time when it had no notice of appellee’s interest in the land and when the record title thereto stood in the name of Overlees and when the deed executed by Overlees had not been recorded, that appellant fixed a judgment lien upon the land under R. S. Article 5449, Vernon’s Ann.Civ.St. art. 5449, and that by the foreclosure of said lien in the issuance of execution, levy and sale of the land as the property of Overlees, appellant acquired title protected by force of the registration statute, Article 6627, as of the date of .the recording of its abstract of judgment; that appellant thus holds the position of a judgment lien creditor under said registration statute, without notice at the time of fixing its lien, and that appellee can not assert its title, either legal or equitable, in this suit against- appellant, because it is shown that Overlees had conveyed the legal title to appellee, and which deed was not of record at the time appellant fixed its lien.

Article 6627, under which appellant bases its rights, reads as follows: “All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding.”

Appellee does not dispute that appellant was without notice of appellee’s claim at the time appellant recorded its judgment and that appellant is in the position of a judgment lien creditor, under Article 6627, ■and that the deed executed by Overlees not being of record .at the time appellant recorded its judgment lien, must under said statute, in a suit between appellant and ap-pellee, be treated as void. But appellee does dispute that appellant’s lien attached to any interest in the land, because Over-lees never then or at any other time owned any interest in the land and possessed no more than the mere naked legal title, which he held in trust for appellee, who by virtue of its payment of the purchase money became vested with the superior, equitable title, and that such equitable title was not subject to the registration statute.

Appellant’s propositions may for convenience be grouped under two contentions which, stated in the reverse order to their arrangement in appellant’s brief, are: (1) That no trust resulted from appellee’s payment of the purchase money for the land, the title to which was taken in the name of Overlees, because Overlees on the same occasion conveyed the legal title to appel-lee by executing the deed to blank grantee and delivering it to appellee. (2) That the trust, if any resulted from appellee’s purchase and payment of the consideration for the land, was completely executed and settled by Overlees’ signing the deed in blank and delivering it to appellee who thereafter inserted its name therein as grantee, thus uniting the legal title with the equitable title in appellee, whereby appellee’s equitable ownership of the land •became subject to registration, and not having been recorded at the time appellant recorded its lien, could not be urged in this suit against appellant.

We do not think that either of the contentions urged by appellant can be sustained. As to the first contention, it appears that one of the illustrations of the facts in which a trust results with respect to land, most frequently found in the decisions, is where the consideration is paid by one person and the title is taken in the name of another. 42 T.J. 637, Sec. 36. The alleged immediate settlement of the trust would not logically destroy the fact of its creation. Moreover, the contention, we think, is incorrect in assuming that the deed executed by Overlees to blank grantee operated as conveyance of the legal title upon its delivery. The instrument as delivered did not' show who paid the consideration or to whom the conveyance was intended, nor did it in any other manner designate a grantee therein. A deed which does not name or in some manner designate a grantee is inoperative to convey the legal title. 14 T.J. 798, Secs. 41, 42, 43. So, the deed executed by Over-lees to blank grantee was an incomplete instrument at the time it was delivered to appellee, and it did not operate as a conveyance of the legal title until the authority to insert the name of a grantee therein was exercised. It is not shown that ap-pellee immediately exercised that authority, or when it was exercised,-further than that the name of appellee was inserted as grantee in the instrument at some time prior to its recording on March 9, 1937, which date was after appellant had recorded its judgment against Overlees.

Appellant’s second contention presents the question of whether or not by reason of the unrecorded deed from Overlees, the registration statute would preclude appellee from asserting its original equity in the land. Appellant stands in the position of a judgment lien creditor, without notice at the time of fixing its lien, and in whose debtor the recorded title stood at that time, but which debtor in fact never at any time owned any interest in the land, and only held the naked legal title in trust for ap-pellee, the . equitable owner; and which debtor had conveyed the legal title to the cestui que trust. Such deed was not of record at the time the creditor fixed its lien. But it is not shown that such deed had been completed (by insertion of appellee's name therein as grantee) so as to operate as conveyance of the legal title at the time the creditor fixed its lien.

We have found no case holding that the statute precluded the cestui que trust from asserting his superior equity in the land in the absence, as here, of a showing that the trustee had conveyed the legal title to the cestui que trust prior to the time the creditor fixed his lien; and it appears that since its enactment in February 1840, all the decisions hold that an equitable title, as here, acquired independent of the legal title, is not subject to or governed by the registration statute, and that the superiority of such title may be asserted against the creditor, even though he had no4 notice thereof at the time of fixing his lien; and, except the case of Calvert v. Roche, 59 Tex. 463, the decisions further hold that though the legal title has been conveyed to the cestui que trust and though such deed is not of record at the time the creditor fixes his lien, the cestui que trust may assert his original equity, acquired, as here, independent of the deed, in a suit against the creditor, because in such suit the statute requires that such unrecorded deed shall be treated as void. Blankenship v. Douglas, 26 Tex. 225, 82 Am.Dec. 608, and subsequent decisions. The case of Calvert v. Roche, supra, announced a contrary doctrine, based upon the theory that since the trustee’s deed conveyed the legal title to the cestui que trust, his equity was thereby extinguished, therefore he could not claim either the unrecorded deed or under his original right. But it appears that Calvert v. Roche was overruled by the later case of John B. Hood Camp v. De Cordova, 92 Tex. 202, 47 S.W. 522, 523, in which Chief Justice Gaines speaking for the Supreme Court said:

“It is the well-settled law of this State that the purchaser at a sale of land under execution, to which the defendant in execution holds the legal title, in trust, however, for another, acquires no title, provided that at the time of his purchase he has notice of the trust; and the rule is not varied although the judgment creditor may, without notice of the equity, have fixed a lien upon the land in any of the modes provided by statute. Blankenship v. Douglas, 26 Tex. 225 [82 Am.Dec. 608]; Grace v. Wade, 45 Tex. 522; Frazer v. Thatcher, 49 Tex. 26; Senter v. Lambeth, 59 Tex. 259; Parker v. Coop, 60 Tex. 111; McKamey v. Thorp, 61 Tex. 648. We presume, however, that this question was certified by reason of the fact that before the appellant acquired its lien by recording an abstract of its judgment, Maxcy, the trustee, had conveyed the land to the ap-pellee by a deed which was not filed for record, and of which appellant had no notice. Upon the question as presented, the decisions of this court seem to be in conflict. In Blankenship v. Douglas, above cited, the trustee, as in this case, had conveyed the land by deed to the cestui que trust before the lien was acquired.' The deed was not recorded, and, while there was evidence tending to show that the judgment creditor had constructive notice of the claim of the cestui que trust when the judgment was rendered and the execution was levied, the fact was not indisputably proved. It was distinctly held, however, that even if the judgment creditor had no notice, and the cestui que trust could claim nothing under his deed, the latter could assert his equity against the purchaser at execution sale. On the other hand, Calvert v. Roche, 59 Tex. 463, seems to hold the contrary doctrine. The ground of the opinion appears to be that, since the deed conveyed the legal title to the cestui que trust, his equity was extinguished, and that, therefore, he could claim neither under the deed nor under his original right. The determination of the point was hardly necessary to a decision of the case, and the question seems not to have received any very serious consideration. This appears by the fact that, while Blankenship v. Douglas is cited in support of another proposition in the opinion, the ruling in that case upon the point under consideration seems to have escaped attention. In Gaines v. National Exch. Bank, 64 Tex. 18, the doctrine seemingly announced in Calvert v. Roche is apparently recognized, but the point was not there decided. We are of opinion that Blankenship v. Douglas lays down the just and logical rule. The statute makes an unrecorded deed void as against such creditors as establish a lien by judicial procedure against the property of the grantor without actual or constructive notice of the grantee’s right. A deed that is void as between two parties cannot be held effective as between them for any purpose. If void, it is as if it did not exist. The creditor cannot, in the one breath, claim that it passed no .title to the grantee as to him, and in the next, when the grantee asserts an equity existing before the deed, maintain that the equity was extinguished by the void conveyance.”

With the exception of Calvert v. Roche, it appears that the rule declared in Blankenship v. Douglas and reaffirmed in John B. Hood Camp v. De Cordova has been consistently followed. Grace v. Wade, 45 Tex. 522; Frazer v. Thatcher, 49 Tex. 26; Senter v. Lambeth, 59 Tex. 259; Parker v. Coop, 60 Tex. 111; McKamey v. Thorp, 61 Tex. 648; Hawkins v. Willard, Tex.Civ.App., 38 S.W. 365; Michael v. Knapp, 4 Tex.Civ.App. 464, 23 S.W. 280; Henderson v. Rushing, 47 Tex.Civ.App. 485, 105 S.W. 840; First State Bank v. Jones, 107 Tex. 623, 183 S.W. 874; Carlisle v. Holland, Tex.Civ.App., 289 S.W. 116; Lusk v. Parmer, Tex.Civ.App., 114 S.W.2d 677; Solether v. Trinity Fire Ins. Co., 124 Tex. 363; 78 S.W.2d 180; Garrison v. Citizens’ National Bank, Tex.Civ.App., 25 S.W.2d 231; Cetti v. Wilson, Tex.Civ.App., 168 S.W. 996; Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098.

The judgment of the trial court will be affirmed.