author: WALTHALL, Justice.

text:
    DWYER v. SOUTHERN PAC. CO. et al.
    No. 3899.
    Court of Civil Appeals of Texas. El Paso.
    April 25, 1940.
    Rehearing Denied June 20, 1940.
    R. L. Holliday and Harold L. Sims, both of El Paso, and Henry T. Moore, of Los Angeles, Cal., for appellant.
    J. M. Goggin and Kemp, Nagle & Smith, all of El Paso (C. W. Durbrow, of San Francisco, Cal., of counsel), for appellee.
   WALTHALL, Justice.

Pat Dwyer, a minor, eleven years of age, by Sam Dwyer, his father and as next friend, as plaintiff, brought this suit against the Southern Pacific Company, a railroad corporation, and Richard E. O’Connor, as defendants, to recover damages alleged to have been sustained by Pat Dwyer, the minor.

It is alleged that on February 27, 1937, while the minor, Pat Dwyer, was crossing the Southern Pacific Company’s railroad yards within the City of El Paso, Texas, and at a point in the City where the general public had been crossing and using the tracks and yards of the Railroad Company for a period of many years, with the knowledge, permission and acquiescence of the Southern Pacific Company, its officers, agents and employees, and at their implied invitation, one of the defendant Company’s freight trains was caused to run over him, and particularly his left leg, causing injuries thereto which made it imperative that his left leg be amputated.

It was alleged that defendant Richard E. O’Connor was the Southern Pacific Company’s head brakeman on the said freight train with full power and authority, express and implied from-long-established usage and custom, to eject trespassers therefrom to prevent them from boarding the train, and to protect persons on the tracks or in close proximity thereto.

It was alleged that the yard was uneven in many particulars stated where the minor Pat Dwyer was at the time he was injured; that he was proceeding in a westerly direction along the side of the train in the direction the freight train was moving, and going directly toward a switch stand in the yard, which the boy intended to go around.

It was alleged in substance that O’Connor discovered the boy and endeavored to prevent him from pursuing the course he was taking and to remove him from the Company’s yards and in close proximity to its train and tracks, shouted at the boy from the top of the train in a loud angry tone, “Hey, you little bastard, get the hell out of here”; that the boy thereby became frightened and looked toward the top of the train where O’Connor was standing, and was caused to stumble- over a switch stand and to fall upon the ground and under the train, and sustained the injury complained of.

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

Twelve questions were submitted to the jury; question No. 1 being as follows: “Do' you find from a preponderance.of the evidence that the defendant Richard E. O’Connor, on the occasion in question herein discovered plaintiff Pat Dwyer proceeding westerly along defendant Southern Pacific Company’s track in proximity thereto, over which defendant’s train was then proceeding westerly, and said defendant Richard E. O’Connor shouted at plaintiff in a loud and angry tone,- ‘Hey, you little bastard,’ and further in substance, get the hell out of here ? Answer yes or no.” The question the jury answered, “No.”

The jury found that appellant was not seeking to ride one of appellee’s cars, as charged by appellees.

The jury made no finding on issue No. 12, which issue submitted the amount of appellant’s damages, and upon that issue the jury apparently was in hopeless deadlock, at least some of the jury so thought and reported.

The jury, however, reported their partial finding, and, as to that, said they were all in agreement.

On appellee’s motion the court rendered judgment on the verdict as returned by the jury.

The court overruled appellant’s motion for a new trial, and the case is properly before us for review.

In his motion for a new trial, and as ground therefor, appellant alleged misconduct of the jury in arriving at their verdict. The court hearU the statements of members of the jury on the question of misconduct. Without quoting what each of the jurors severally said on the hearing of the motion, it was shown that the jury took a number of votes- on issue No. 1, stated above, the jury voting approximately about eight to four, “No.”

It appears from their statements on the hearing of the motion that some of the jurors wanted to exonerate defendant O’Connor from liability and still hold the defendant Railroad Company liable. There was much discussion on that issue before issue No. 1 was decided. While that question was yet pending before the jury, a statement was made by some of the jurymen substantially to the effect that it was immaterial how the jury answered the issue as to O’Connor, and immaterial how the jury answered issue No. 1; that the ultimate recovery of the boy (appellant) would depend on how the jury answered question No. 12, referring to the amount of the damages the boy should recover against the Railroad Company; that the amount of the damages found in favor of the boy would control all other issues submitted.

We have not stated the exact language used in the argument, as the jurymen, in their evidence on the hearing of the motion, did not use the same words. The statement above made and the argument on the statement was in substance as above. All of the jurors who testified on the hearing of the motion were in agreement that the argument as stated above did occur in the juryroom, and at the time stated in their deliberation on their verdict.

After the above statement was made in the juryroom, and the jury had considered and argued on the matter and concluded that the amount of damages they found would control the judgment, several of the jury then changed their vote on issue No. 1 from yes to no, and so reported that finding.

Apparently the jury was in favor of appellant having a verdict for some amount, but were never able to agree on the amount; and on that issue made no finding.

The question presented here, and the only one we think to consider, is, Do the above facts show misconduct of the jury? If they do, the court should have declared a mistrial, and should have sustained appellant’s motion.

In the case of Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372, 374, the court, speaking through Judge Critz, said: “It is certainly the settled law of this state that if, upon a consideration of the whole of the pertinent record bearing on the issue of misconduct, it is reasonably doubtful to the Supreme Court whether the misconduct affected the verdict in a material way, the verdict will be set aside and a new trial granted.”

In the opinion it is further said that, regardless of the question of agreement, “the extended discussion' by the jury of the legal effect of their answers * * * expressed during the deliberations of the jury * * * to so frame their answers as to give the plaintiff a judgment, is such misconduct as should result in a reversal.”

It seems to us that the unquestioned discussion by the jury of the legal effect of a finding of damages for the plaintiff would control all other issues submitted to them, would be amenable to the above statement of the law.

In Walker v. Quanah, A. & P. Ry. Co., Tex.Com.App., 58 S.W.2d 4, 5, where the jury had agreed upon their answers to certain special issues, including the one upon which the jury awarded damages to plaintiff, and while the jury were considering their answer to the issue which had the effect of finding that the plaintiff did not use ordinary care on the- occasion in question, and therefore was guilty of negligence, the question was raised by some of the jurors as to whether or not a negative answer to said issue would defeat a recovery for plaintiff of the damages already found by the jury. After some discussion among the jurors of the question, one of the jurors stated, in effect, that a negative answer to the special issue would not prevent the plaintiff from recovering the damages, and thereupon all the jurors agreed to answer the special issue “No,” as they did. On the motion for rehearing on the issue of misconduct of the jury, the trial court heard the evidence and concluded against the issue of misconduct (Tex.Civ.App., 41 S.W.2d 534, 536). The Commission of Appeals, after fully stating the evidence, said: “To say the least, there arises a reasonable doubt as to whether or not such misconduct affected the verdict in a material way. Indeed, it could be safely said, from the facts stated, without taking into consideration the testimony of jurors regarding their mental operations, that it appears with a reasonable degree of certainty that the misconduct did affect the jury’s verdict in material respects,” and referred to the case of Bradshaw v. Abrams, supra. The court reversed and remanded the case.

We do not agree with the theory of the appellees that under the evidence a verdict for defendants should have been peremptorily instructed, and the judgment for that reason affirmed.

We think the case should be reversed and remanded, and it is so ordered.

PRICE, C. J., not sitting.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    GUYER v. GUYER et al.
    No. 5170.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Rehearing Denied July 1, 1940.

      J. Shirley Cook and L. P. Bonner, both of Vernon, for appellant.
    C. P. Engelking, of Electra, for appel-lees.
   FOLLEY, Justice.

This suit was filed by the appellant, Emma B. Guyer, widow of Jesse C. Guyer, deceased, in cause No. 6926 of the District Court of Wilbarger County, Texas. Jesse C. Guyer was the son of John H. Guyer, also deceased. By her amended original petition filed on February 11, 1939, in lieu of her original petition filed on October S, 1938, the appellant sued Walter E. Guyer, who is also a son of John H. Guyer, and all the other living heirs at law of John H. Guyer, together with E. B. Prince and E. P. Williams, the latter being sheriff of Wilbarger County, and other parties not necessary to mention.

The appellant sought to set aside and have declared void two judgments theretofore rendered in the same court in causes Nos. 5313 and 5980. Cause No. 5313 was a foreclosure suit and 5980 was, among other things, a trespass to try title action. She further sought to cancel and have declared void a sale of subdivision No. 122 of the Waggoner Colon}'' Lands in Wilbarger County, Texas, under an order of sale issued in cause No. 5313. The burden of her complaint in respect to cause 5313 was that the foreclosure jüdgment and sale thereunder was void because the asserted lien was not for purchase money and the land was the homestead of appellant and her deceased husband at the time of the foreclosure. She asserted the same homestead rights as a reason for the invalidity of the judgment in 5980. The appellant also sought damages for the alleged conversion of her household furniture by the sheriff of Wil-barger County in connection with his execution of a writ of possession in cause No. 5980.

In the instant action Walter E. Guyer and the other living heirs of John H. Guyer adopted the allegations of the appellant and joined her in her attempt to-set aside the former judgments and the sale of the land. The appellee, E. B. Prince, among other things, interposed the judgments in causes 5313 and 5980 as res ad judicata to the claims now asserted with reference to the land. After a trial before the court without a jury the court sustained appellee Prince’s plea of res ad-judicata and decreed the judgments in. causes 5313 and 5980 valid and binding judgments. The court further decreed that the writ of possession issued in cause 5980 was a valid writ to dispossess the appellant, that the sheriff was by law required to execute the same and that the personal property alleged by the appellant to have been converted was not so converted but was stored in the Sid. Parker warehouse at Vernon, Wilbarger County, Texas, subject to appellant’s orders. The court further denied all other pleas for affirmative relief asked for by all the parties to the suit. It is from this judgment that this appeal is brought to this court.

From the final judgment rendered in cause No. 5313 there was no appeal on writ of error. Cause 5980 reached this court by writ of error and our opinion affirming the judgment may be found in Guyer et ux. v. Prince et al., 106 S.W.2d 1091. We refer to this opinion for such basic facts as we deem unnecessary to repeat here. The proceedings in both causes 5313 and 5980, except the testimony in such causes, were introduced in evidence in the trial of the instant case and are before tts in this appeal. Such proceedings include the findings of fact and conclusions of law by the trial court in the respective suits.

From the records in the three cases tried between the parties, and more particularly from the findings of fact filed in the instant case, we ascertain the factual background for all - this litigation began on January 25, 1916. At such time John H. Guyer owned subdivisions 115, 116, 121 and 122 of Waggoner Colony Lands in Wilbarger County, Texas. On such date he executed a note in favor of Mrs. Winifred Stowell for $7,000 and, to secure the same, executed a deed of trust upon the four subdivisions of land. On August 16, 1916, John H. Guyer and wife, Elizabeth Guyer, conveyed to their son, Jesse C. Guyer, subdivisions 121 and 122, in which conveyance, as a part of the consideration, Jesse C. Guyer assumed the payment of one-half of the $7,000 Stowell note and also executed his own note for $7,700 in favor of his father. A vendor’s lien was retained upon the land to secure the payment of this unpaid purchase price indebtedness. Thereafter, on May 2, 1921, Jesse C. Guyer and wife, Emma B. Guyer (the appellant herein), secured a loan from Gum Brothers Company and executed two deeds of trust to Lester B. Gum, trustee for Gum Brothers Company, upon subdivisions 121 and 122, securing three notes payable to such company, the first for $7,000,- and the other two for $875 each. The $7,000 note was executed in lieu of one-half of the $7,000 Stowell note assumed by Jesse C. Guyer and for $3,500 of the $7,700. note .executed by Jesse C. Guyer and payable to John H, Guyer as part of the purchase price for the land. The two $875 notes were for interest on the indebtedness and for commissions on the loan made by Gum Brothers Company. On June 6, 1921, John H. Guyer transferred $3,500 of the $7,700 indebtedness, with the lien, to Gum Brothers Company. On June 14, 1921, Mrs. Winifred Stowell transferred and assigned to Gum Brothers Company the $7,-000 note executed by John H. Guyer together, with the lien upon the land. On December 1, 1922, Jesse C. Guyer and wife executed a deed of trust upon subdivisions 121 and 122 to J. A. Wise, trustee for the First National Bank of Electra, Texas, to secure their, note to said bank in the sum of $2,826.19. On February 1, 1923, Jesse C. Guyer and wife were delinquent in the payment of their share of the $7,000 note then held by Gum Brothers Company as well as upon the balance due by them upon the $_7,700 note. Thereupon, to avoid foreclosure, John H. Guyer agreed to, and did, transfer the balance of the $7,700 vendor’s lien note and lien held by him to Edward Schlaffke, trustee for the First National Bank of Electra. On the same date . Jesse C. Guyer and wife executed to such trustee, for the benefit of the bank, their deed of trust upon'.subdivisions 121 and 122 to secure the indebtedness transferred to the bank and to better secure the bank for other indebtedness held by it against Jesse C. Guyer and wife as well as to secure all future loans to be made to them by the bank. On February 16, 1923, Jesse C. Guyer and wife, intending to renew the balance of the $7,700 note and not knowing that John H. Guyer had transferred the' indebtedness thereby represented to the trustee for the benefit of the bank, executed and delivered to C. H. Jones, trustee for John H. Guyer, their renewal note for $7,448.20 and a deed of trust upon the two subdivisions of land to secure such note. At such time there was $2,-630.70 principal due by Jesse C. Guyer and wife as purchase price indebtedness upon the land, the balance of the $7,448.-20 note being for other indebtedness held against them by the bank. Thereafter the First National Bank of Electra loaned to Jesse C. Guyer the sum of $1,472.36 which was paid upon -the original purchase price indebtedness on the land, said indebtedness .held by Gum Brothers Company, and at various times loaned to Jesse C. Guyer money which was used in the payment of interest due Gum Brothers Company upon, such indebtedness. On January 20, 1927, for such sums and other sums so advanced by the bank, Jesse C. Guyer and wife owed the. bank the sum of $9,424.30 for which 'they executed a new note in such amount and a deed of trust to secure the same upon subdivisions 121 and 122. On February 23, 1929, an arrangement was made between the parties then interested whereby Jesse C. Guyer sold subdivision 121 and from the proceeds of such sale the $9,424.30 indebtedness due the bank was reduced to $8,424.44, and other debts of Jesse C. Guyer and wife were paid. On December 20, 1930, the First National Bank of Electra and the First State Bank of Electra were consolidated and all of the assets of the former bank were assigned to the latter. On August 20, 1931, the First State Bank of Electra failed, and on September 19, 1931, its assets were assigned to the appellee E. B. Prince, who thereby became the owner of the indebtedness theretofore held by both banks against Jesse C. Guyer and wife.

On July 7, 1931, just prior to the failure of the First State Bank of Electra, Edward Schlaffke, purporting to act as trustee for such bank, sold subdivision 122 at a deed of. trust sale. At such sale this land was purchased by the First State Bank for a recited consideration of $4,-000. Thereafter cause No. 5313 was filed by Walter E. Guyer and all the other heirs of John H. Guyer except Jesse C. Guyer. John H. Guyer had theretofore' on December 6, 1929, died intestate in Linn County, Missouri. The defendants in such suit were Jesse C. Guyer and wife, Emma B. Guyer, and E. B. Prince. The plaintiffs in such suit, as heirs of John H. Guyer, sought recovery for the unpaid balance of the purchase money alleged to have been due them upon subdivision 122, in connection with the $7,-700 note, and for a foreclosure of their lien on the land. They further sought judgment setting aside the trustee’s sale of the land of the date of July 7, 1931. E. B. Prince answered setting up the various transfers, extensions and renewals of the debt and lien which debt he had obtained through the banks, asked that his title to the land be quieted and, in the alternative, prayed for judgment for the debt due him and for foreclosure of his lien upon subdivision 122. Jesse C. Guyer and wife answered in such suit pleading payment of the indebtedness, and alleged that subdivision 122 comprised their homestead and that under the Homestead Laws of Texas the loan asserted by the plaintiffs was void since it did not represent purchase money for the payment of the land. They further asserted that all of the unpaid indebtedness due upon the $7,700 note had been, transferred by John H. Guyer during his lifetime to the First National Bank of Electra. They further alleged that when such ba.nk received the original purchase price note and lien securing the same, such indebtedness represented the only original purchase price, money against the land and prayed that the plaintiffs recover nothing as against them.

On March 25, 1933, judgment was rendered in cause 5313 setting aside the deed of trust sale of July 7, 1931, and, in so far as this appeal is concerned, adjudged that the Guyer heirs, plaintiffs therein, had a first lien on subdivision 122 to secure the sum of $6,399.94, representing unpaid purchase money with interest thereon, but further decreed that the note sued upon by the plaintiffs was in renewal of the original which had been transferred by John H. Guyer to the First National Bank of Electra and that E. B. Prince as as-signee of such bank was subrogated. to the rights of the plaintiffs therein. The lien was foreclosed in favor of E. B. Prince and the clerk directed, after the sale of other land not the subject of this controversy, to issue an order of sale directed to the sheriff or any constable of Wilbarger County commanding him to sell said subdivision 122 and apply the proceeds to the payment of $6,399.94 due E. B. Prince and the remainder, if any, to be paid to Jesse C. Guyer and Emma B. Guyer. As above stated, the judgment in cause 5313 became final, there being no appeal or writ of error prosecuted therefrom. Order of sale was issued in cause No. 5313, levy on the land duly made, and on March 6, 1934, the land sold thereunder to E. B. Prince for $2,000, and a sheriff’s deed was duly executed and recorded conveying the land to E. B. Prince.

Thereafter, in 1934 Jesse C. Guyer and wife, Emma B. Guyer, filed suit in cause 5980 styled Jesse C. Guyer et ux. v. E. B. Prince et al. E. B. Prince, the heirs of John H. Guyer other than Jesse C. Guygr, and J. D. Linton, then sheriff of Wil-barger County, were made party defendants. In such suit the plaintiffs therein first pleaded a cause of action in trespass to try title to subdivision 122, alleged that such property constituted their homestead, and further asserted that during the trial in cause 5313 an agreement was made between Jesse C. Guyer and wife, through their attorney, and E. B. Prince, through his attorney, that as defendants in cause 5313 they would make a common fight against the plaintiffs therein; that it was agreed that they would establish for E. B. Prince a first lien upon subdivision 122, have the same foreclosed, the land sold, bought in by Prince, and that thereafter he would reconvey the land to Jesse C. Guyer and wife for a consideration not exceeding $2,500; that they had demanded performance of such agreement and possession of such premises but that Prince had refused to carry out such agreement and was threatening to dispossess them by a writ of possession in the hands of Sheriff Linton; and prayed for a writ of injunction against Prince and the sheriff restraining them from dispossessing Jesse C. Guyer and wife and for judgment for title and possession of the land.

The defendants in said suit answered, first asserting a misjoinder of parties defendant in that the Guyer heirs were sued but no interest in the land was alleged to have been claimed or asserted by them. The defendants therein further pleaded the general issue, a plea of not guilty, and asserted the alleged contract was in violation of law, against public policy, against the statute of frauds and without consideration. By way of cross-action Prince asserted his title to the property and asked that the plaintiffs therein be dispossessed of the land and premises, Judgment was rendered dismissing the Guyer heirs as defendants for want of interest shown in them, and decreeing that the plaintiffs, Jesse C. Guyer and Emma B. Guyer, take nothing by their suit and that E. B. Prince recover from Jesse C. Guyer and wife, Emma B. Guyer, the title and possession of subdivision 122 and that a writ of restitution issue ordering the sheriff of Wil-barger County, or other officer executing the writ, to place E. B. Prince in possession of the land and premises. As above stated this court affirmed such judgment in cause No. 5982.

On January 10, 1938, after the judgment in cause 5980 had become' final, the clerk of the District Court of Wilbarger County, in obedience to the command of the judgment therein, issued a writ of possession whereby E. P. Williams, then sheriff of Wilbarger County, placed E. B. Prince in possession of the premises, and removed therefrom the personal property belonging to Emma B. Guyer and placed the same in storage with Sid Parker at Vernon, Texas, subject to the orders of Emma B. Guyer.

The above facts afforded the background for the present litigation seeking to set aside the judgments in causes 5313 and 5980, asking cancellation of the sale of the land under the judgment in 5313 and for damages for the alleged conversion of the personal property removed from the premises under the writ of possession in 5980.

On the issue seeking to avoid the two former judgments by reason of the homestead claims of the appellant we again call attention to the fact that in cause 5313 the appellant and her deceased husband urged such homestead right as a defense to the foreclosure therein asserted by the Guyer heirs through whose renewed deed of trust E. B. Prince recovered judgment for foreclosure. They further asserted payment of the purchase price debt declared upon by such heirs and alleged that the First National Bank of Electra had received, through its transfer of the original purchase price note and lien, the only original purchase price indebtedness due upon the property. Upon sufficient pleadings and findings of f»ct the court in that cause rendered judgment contrary to the homestead claims of the appellant and her deceased husband. In cause 5980 the appellant and her deceased husband, in spite of the foreclosure in cause 5313, sought judgment for title and possession of the land in their count in trespass to try title and further sought judgment for the land by reason of the alleged agreement with Prince for the re-conveyance of the land to them, which agreement this court held to be contrary to public policy and void. In that suit E. B. Prince joined the issue of trespass to try title by his plea of not guilty. The appellant and her husband also asserted their homestead rights in the property. The court, in the face of such allegations, denied them a recovery and adjudged the title and right of possession of the property to be in E. B. Prince. Suffice it to say that the judgments in these two former cases are amply supported by pleadings, and upon the face of the record neither was shown to have been void. Moreover, issues of fact were presented in each of such causes with reference to the homestead rights of Jesse C. Guyer and wife, Emma B. Guyer, which issues were in each instance decided adversely to them and in favor of E. B. Prince. It is not contended that the court in such causes was without competent jurisdiction to adjudge the issues therein involved.

It is our opinion that the question in regard to the title and possession of the land, particularly since final judgment in cause 5980, is foreclosed against the ap~ pellant by the provisions of article 7391 of the Revised Civil Statutes of Texas, which is as follows: “Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.”

In 26 Tex.Jur. 298, para. 492, with reference to the significance of the above statute it is said: “This means, of course, that a judgment in favor of either plaintiff or defendant rendered on the merits, whether after trial or on a disclaimer, is conclusive of all adjudicated claims to the land that were or could have been set up by his adversary, and operates as a perpetual bar to the maintenance by him of any subsequent suit on the same cause of action and in respect of the same subject matter.”

In construing this same statute in the recent case of Trigg et al. v. Whittenburg et al., Tex.Civ.App., 129 S.W.2d 472, 474, writ refused, in a situation involving a plea of res adjudicata similar to that of the instant case, we said: “This statute merely enacts into law the equitable rule that there should be an end to all litigation. The language of this article makes it incumbent upon a litigant to present in the first instance all the reasons he has to offer as a basis for recovery. No new and independent rights having accrued to .him after such judgment he is not permitted to maintain another suit seeking to recover the same property upon some theory not advanced in the former action. To permit such a practice would be tantamount to the abolition of final judgments.”

In Permian Oil Co. v. Smith et al., 129 Tex. 413, 73 S.W.2d 490, 496, 107 S.W.2d 564, 111 A.L.R. 1152, Judge Leddy, speaking for the Supreme Court of Texas, said: “The doctrine has been thoroughly settled by repeated decisions of the courts of this state, that a judgment in an action of trespass to try title that plaintiff take nothing by his suit is an adjudication that the title to the land involved is in the defendant, and such a judgment is equally as effective for that purpose as one expressly vesting title in the defendant.”

In the case of Freeman v. McAninch et al., 87 Tex. 132, 27 S.W. 97, 98, 47 Am.St.Rep. 79, Chief Justice Stayton of the Supreme Court of Texas, in possibly the last opinion ever written by this able jurist, said: “Where it appears from the record of a court having jurisdiction over the parties and subject-matter that an issue has been presented and decided, then the decision so made, so long as it is not set aside in some lawful manner, must be held conclusive upon the rights of the parties, when the same issue is again presented; and in such cases extrinsic evidence cannot be received to contradict the record, by showing that an issue necessarily involved in the cause was not presented and decided.”

In that same case Judge Stayton' quoted with approval the following language from the case of Foster v. Wells, 4 Tex. 101, 104: “The general proposition * * * That the judgment or decree of a court possessing competent jurisdiction shall be final as to the matters determined, cannot be controverted. The principle, however, extends further. It is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.”

Under the above authorities it is our opinion the trial court in the instant case correctly sustained the plea of res adr judicata urged by the appellees.

The only other matter remaining for our determination is the question as to damages for the alleged conversion of the personal property of the appellant. The only measure of damages alleged, or sought' by the appellant was for the total value of the property. The uncontrovert-ed testimony shows that the sheriff removed such property from the premises under the direction of a valid writ of possession and stored the same in the warehouse of Sid Parker of Vernon, Wil-barger County, Texas, subject to the disposal of the appellant. No demand for possession of this property was thereafter ever made by the appellant. The testimony shows that she could have obtained the property at any time she called for it upon the payment of the storage charges thereon. There was no showing as to how much storage was due upon the property at the time of the trial or at any other time. There was no evidence that the appellant directed the sheriff where to place the property or that she gave him any directions at all with reference thereto. It is apparent from the record that the property was stored solely for the benefit of the appellant. Neither the sheriff, nor Prince, nor anyone other than appellant ever asserted any claim to or ownership of such property or exercised any dominion or control over it. Under such circumstances we think no conversion of the property was shown. 42 Tex.Jur. 507, para. 2, et seq. Such being true the total value of the property was not the correct measure of damages, if any, suffered by the appellant, and no other damages being sought or shown the court was not in error in refusing the appellant a recovery in this particular.

The judgment is affirmed.

STOKES, J., not sitting.


author: JOHNSON, Chief Justice.

text:
    FOUNDATION OIL CO. et al. v. GREAT PLAINS OIL & GAS CO. et al.
    No. 5618.
    Court of Civil Appeals of Texas. Texarkana.
    June 21, 1940.
    Rehearing Denied July 4, 1940.
    Turner, Rodgers & Winn and Geo. S. Terry, all of Dallas, for plaintiffs in error.
    Wynne & Wynne and Henry H. Har-bour, all of Longview, for defendants in error.
   JOHNSON, Chief Justice.

Great Plains Oil & Gas Company, owner of the ⅞ leasehold mineral interest in Block G of the Butcher Christian subdivision of the G. W. Hooper Survey in Gregg County, filed this suit in trespass to try title against Foundation Oil Company, owner of tile ⅞ leasehold mineral interest in Block F which adjoins Block G on the West. The purpose of plaintiff’s suit seeks to locate the Northwest and Southwest corners and the West boundary line of Block G at a point approximately 45 varas West of the presently occupied fence line between said Blocks G and F; thus the land sued for comprises approximately three acres, now within defendant’s enclosure. Defendant answered by general denial, plea of not guilty, and pleaded the three and five years statutes of limitation. E. A. Anderson, the surface owner of Block G, intervened and adopted the pleadings of plaintiff. He will be referred to as a plaintiff. W. H. Térrell, G. J. North-cutt, Lillie Willis, Tom Willis, and L. Richkie, the surface and royalty owners of Block F, intervened, aligning themselves with the defendant, Foundation Oil & Gas Company, and they will be referred to as defendants. Upon trial to a jury, at the close of the evidence, all parties moved for instructed . verdicts. Defendants’ motions were overruled, plaintiffs’ motions •were sustained. From the judgment entered for plaintiffs upon the directed ver-diet, defendants have perfected a writ of error.

The Butcher Christian estate consisted of 665 acres of the G. W. Hooper Survey in Gregg County. He had seven children, each being entitled to 95 acres. At the time of the division of said estate, 1930, one of the children, Pulina Anderson, was deceased. She left seven children who inherited her portion of the 665 acres. W. E. Jones, county surveyor of Gregg County, was employed by the heirs to subdivide the estate and prepare field notes for a partition deed. Jones began his survey by locating on the ground the outside lines of the 665-acre tract. He then by a survey upon the ground subdivided the land into sixteen blocks, marking and describing the lines and corners of each block. The portion set aside jointly to the seven children of Pulina Anderson consisted of Blocks 14, 15, and 16, comprising 95 acres. It was originally intended that the heirs of Pulina Anderson would later make a separate partition between themselves of said 95 acres allotted to them. But after the 665 acres had been surveyed, subdivided into 16 blocks, marked upon the ground, and the field notes of each of the 16 blocks had been so prepared, it was decided to subdivide said 95 acres set aside to the heirs of Pulina Anderson into s'even small tracts and allot one of said tracts to each of said seven children in the main deed partitioning the estate. Whereupon the surveyor, Jones, “by an office survey” subdivided and platted said 95 acres into seven smaller tracts of 13¾ acres each and lettered them Blocks A. B. C. D. E. F and G. The field notes of said lettered blocks, so prepared by computing course and distance from lines and corners of adjoining blocks, were in lieu of the ground description of Blocks 14, 15 and 16, incorporated in the partition deed, signed by all the heirs. Thus each of the seven children of Pulina Anderson was allotted one of said lettered blocks. Block F was allotted to Lillie Willis and Block G was allotted to E. A. Anderson. Block F. is described in the partition deed as follows:

“Share of Lillie Willis (Block F):
“Beginning at the N. E. corner of T. D. Anderson’s tract;
“Thence East with the South line of Block No 13, 243.2 vrs. to E. A. Anderson’s N. W. corner;
"Thence South with his west line 316.8 vrs. to his S. W. corner;
“Thence West 243.2 vrs. to T. D. Anderson’s S. E. corner;
“Thence North with-his east line 316.8 vrs. to the place of beginning, and containing 13¾ acres of land.”

Block G is described as follows :

“E. A. Anderson’s Share (Block G) :
“Beginning at Lillie Willis’ N. E. corner in the South line of Block No. 13;
"Thence East with the south line of said Block 243.2 vrs. to a northwest- corner of Block No. 10;
“Thence South with a west line of Block No. 10, 316.8 vrs;
“Thence West with a part of said Block No. 10, 243.2 vrs. to the Lillie Willis’ S. E. corner;
“Thence North with her east line 316.8 vrs. to beginning, and containing 13¾ acres of land.”

It is the unlocated Northwest corner, West lin-e and Southwest corner of Block G that plaintiffs seek to locate in this suit. Each of the other lines and corners called for in the field notes of Block G had been surveyed and marked upon the ground by Jones at the time he prepared the field notes of Block G. They are now easily found and identified, their location is not disputed. It will be observed that the field notes of Block G called to begin “at Lillie Willis’ N. E. corner.” The Lillie Willis tract (Block F), lying to the West of Block G, had not then been surveyed or located upon the ground. None of the corners called for in the field notes of Block F were then marked or located upon the ground. So it is seen that the beginning corner called for in the- field notes of Block G was an unlocated corner. Its location is now in dispute, and is to be established by plaintiffs in this suit.

Appellants contend that the beginning corner of a survey is of no higher dignity or importance than any other corner; that where, as here, the beginning corner never has been surveyed and its location is in doubt and ' is sought to be established, that any other corner marked by natural or artificial objects called for in the survey, found and identified as such, should be used in determining the boundaries of such survey; that since the field notes of Block G aire complete within themselves and include calls for fixed and known objects, marking its Northeast and Southeast-corners, found and identified upon the ground, as to which there is no dispute, that therefore the unsurveyed, unlocated, and unmarked Northwest and Southwest corners and West line of Block G should he located at their called distance of 243.2 varas West of its said fixed eastern corners. To establish the unlocated Northwest “beginning” corner of Block G in the manner contended for by appellants, that is, by course and distance from the nearest known corners called for in its own field notes, the surveyor would commence at the Northeast corner of Block G which is the second corner called for in its field notes, same being the “Northwest corner of Block 10.” This corner was then and is now a known corner, located and marked by Jones upon the ground by actual survey, witnessed by a sweet-gum tree, still standing. Its location is shown to be easily found and identified and is undisputed. To commence at this corner and survey South, West, North and East, the courses and distances called for in the field notes of Block G, or reverse the courses and then survey West, South, East and North the distances called for, will lay each of the lines and corners of Block G upon the ground in harmony with its own field notes, and at their presently occupied positions, and will give to the survey its full 13¾ acres called for. Appellees contend that said Northwest corner.of Block G should not be thus established by course and distance from the nearest known corner called for in its own field notes, but that said Northwest corner of Block G should be established by course and distance from the nearest known corner called for in the field notes of any one of the lettered blocks lying to the West of Block G. The nearest known corner called for in any of the field notes of any of the lettered blocks lying West of Block G is the Northwest corner of Block B, five blocks away. The field notes of Block B called to begin “at the Southwest corner of the J. M. Christian 49-acre tract.” The Southwest corner of the J. M. Christian 49-acre tract had been surveyed and marked upon the ground at the time the field notes of Block B were prepared. Like the Northeast corner of Block G, the Northwest corner of Block B is identified and its location is undisputed. To commence at the Northwest corner of Block B and survey the courses and distances called for in the field notes of each of the intervening blocks, B, C, D, E, and F, will locate the Northwest corner of Block G at a point approximately 288 varas West of the Northeast corner of Block G, or 45 varas West of the presently occupied line, thus extending the North and South lines of Block G a distance of 45 varas more than the distance called for in the field notes, and would give to Block G approximately 16⅝ acres instead of 13⅝ acres as called for in its field notes.

We believe that appellants’ contention must be sustained, and that the motion for directed verdict in their favor should have been granted instead of appellees’ motion.

In Kennard v. Maxwell, Tex.Civ.App., 287 S.W. 60, 63, a general rule of boundary law is expressed in the following language: “The beginning corner of a survey is of no higher dignity or importance than any other corner; and, where a natural or artificial object called for is found and identified at any corner, the lines of the survey may be determined by commencing at that point instead of the beginning corner. And where the location of a beginning corner is in doubt, any other corner marked by a natural or artificial object called for in the survey, found and identified as such, should be used in determining the boundaries of such survey. Phillips v. Ayres, 45 Tex. 601; Davis v. Smith, supra [61 Tex. 18]; Koenigheim v. Miles, 67 Tex. 113, 2 S.W. 81; Meade v. Jones, 13 Tex.Civ.App. 320, 35 S.W. 310; Taft v. Ward, 58 Tex.Civ.App. 259, 124 S.W. 437; Duren v. Presberry, 25 Tex. 512, at page 517.”

The case of Petty v. Paggi Bros. Oil Co., Tex.Com.App., 254 S.W. 565, 568, is in point of fact with the case at bar. In that case the field notes of the Herrington 20-acre tract called to begin at its Southwest corner and run East. The 20-acre tract had been previously subdivided whereby plaintiffs had received 15 acres out of the East end, one of the defendants 4 acres out of the west end, and another defendant one acre between these two tracts. The Southwest beginning corner of the Herrington 20 acres was in doubt, though it was identical with the Southwest corner of the Mitchell 30-acre tract. By commencing the survey at the Southeast corner of the Mitchell 30-acre tract, and running West 781 varas the call distance of its South boundary line, would locate the Southwest corner of the Mitchell 30-acre tract, with which the Southwest corner of the Herrington 20-acre tract was identical. Plaintiffs sought to have the Southwest corner of the 20-acre tract located in this manner, and from the Southwest corner of the 20-acre tract thus located, to survey the courses and distances called for in the field notes of the 4-acre tract, and of the 1-acre tract,' which survey would locate the Southwest corner of plaintiffs’ IS acres 338.S varas West from its Southeast corner instead of 321 varas as called for in its field notes. The field notes of the Herrington 20-acre tract, like the field notes of Block G, were complete, definite and certain, and its boundaries could be definitely determined from the known corners called for in its own description, and contain no reference to the Mitchell tract (nor do the field notes of Block G -contain any reference to Block B or the Southwest corner of the J. M. Christian 49-acre tract). Upon such facts, not materially different from the facts here presented, Judge German said:

* * * The field notes of the Her-rington 20 acres are complete, definite, and certain, and contain no reference to' the Mitchell 30 acres. The southeast corner of the 20 acres is definitely located, and there seems to be no dispute about the location of its northeast corner and its south, east, and north lines. Its boundaries Can be determined accurately from its own calls. When this can be done there is no justification for recourse to the field notes of other surveys. The southeast corner of this tract, being found and clearly identified, is of more importance than the beginning corner, which cannot be identified on the ground, as a basis from which to locate the lines and other corners. Where the field notes of a survey are complete in themselves, and one corner can be located by course and distance from another established corner, it ought to be so established, and it is, not permissible to look to the field, notes of another survey to create an inconsistency in the calls. Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931; Davis v. Smith, 61 Tex. [18], 21; Upshur County v. Lewright (Tex.Civ.App.) 101 S.W. 1013; Reast v. Donald, 84 Tex. [648], 653, 19 S.W. 795; Polk v. Reinhard (Tex.Civ.App.) 193 S.W. 687.

“It being admitted by all parties that there is nothing on the ground to indicate the original location of the southwest corner of the 20-acre tract, and that it is necessary to resort to course and distance from some other point to determine its location, certainly the most reliable and obviously proper point from which to so locate it is the southeast corner of the 20 acres itself. This is true, not only because it is a well-established corner of the very tract to be located, but it is the least remote of all the points from which it is sought to locate the southwest corner. Clarke v. Klein (Tex.Civ.App.) 166 S.W. 1179; Standefer v. Vaughan (Tex.Civ.App.) 219 S.W. [484], 490.”

The judgment of the trial court will be reversed and the judgment here rendered for appellants, establishing the Northwest corner, Southwest corner, and West line of Block G at 243.2 varas West from its Northeast and Southeast corners and East line, respectively, same being the position's of the Northwest and Southwest corners and West line as presently occupied and marked by the division fence between the plaintiffs and the defendants.


author: BLAIR, Justice.

text:
    WOODS v. HARDWARE MUT. CASUALTY CO. et al.
    No. 8923.
    Court of Civil Appeals of Texas. Austin.
    June 5, 1940.
    Rehearing Denied June 26, 1940.

      Wallace & Wallace, of Cameron, for appellant.
    Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appéllee Hardware Mut. Casualty Co.
    O. L. Kidd, of Cameron, for appellee Penóla Woods.
   BLAIR, Justice.

This litigation arose in connection with the workmen’s compensation insurance of James Woods, a negro workman who was killed in the course of his employment with Sapp Motor ' Company, the insured. Ap-pellee, Hardware Mutual Casualty Company, the insurer, admitted liability for his death and paid one-half of the insurance to the minor children .of the deceased. A controversy arose, however, between appellant, Ina Woods, and appellee Penóla Woods, as to which one of them .was the widow of James Woods, deceased, and entitled under the Workmen’s Compensation statutes to the remaining one-half of the insurance. Each of them filed a claim with the Industrial Accident Board to be awarded the compensation insurance. Ina appealed from the award of the Board; and at the conclusion of the evidence the trial court instructed the jury to find Penóla to be the widow of James Woods, deceased, and judgment was accordingly rendered awarding her the insurance in question; hence this appeal.

Ina (appellant) introduced in evidence a marriage license and the minister’s return thereon, showing her marriage as Ina Murphy to James Woods (the deceased) on August 27, 1930. She testified that before her marriage to him she knew he had been married to Penóla (appellee),' but he told her that Penóla had filed suit and obtained a divorce from him; and that she married him in good faith believing that he was divorced, and continued to live with him as his wife until his death.

Penóla (appellee) introduced in evidence a marriage license and the minister’s certificate thereon, showing her marriage as Penóla Johnson to James Woods (the deceased) on June 30, 1923. She testified that in the fall of 1927, James Woods sold their household furniture and sent her and their two small children to the home of her parents, and told her that he was going to the home of his parents; and that they never lived together thereafter, her parents supporting her and children without any aid of her husband. She further testified that in December, 1927, she filed suit for divorce ‘against said James Woods in the District Court of Milam County, paid her lawyer and thought that when she paid her lawyer the divorce was granted. The Clerk of the court exhibited the dockets, records, and minutes of the court, showing that the divorce suit had been filed but that the divorce had not been granted, and that the case was still pending on the docket as a “live case.” The lawyer who filed the suit died in 1934. The Clerk’s record showed that the costs, including costs of a final judgment, had been paid. Penóla further testified that she thought her divorce had been granted, and that she mariied Brown Stennett, by ceremonial marriage in December, 1928, and lived with him as his wife and bore him children; but that he later divorced her and that she had not married again.

The evidence is undisputed that all of the parties involved in the aforementioned marriages lived in Cameron, Texas, knew each other and knew of the several marriages mentioned; and that no divorce proceedings other than above mentioned were filed in Milam County where all of the parties continuously lived, except for short trips to the west to pick cotton, or to other places looking for work. Both Ina and Penóla, in good faith, believed that Penóla had obtained a divorce from James Woods in her suit, before Ina’s marriage to him and before Penola’s marriage to Brown Stennett, and that neither of them knew that the divorce had not been granted until after the death of James Woods, when the question of his insurance arose.

Appellant offered the testimony of Brown Stennett, excluded on objection of appel-lee, to the effect that he and Penóla agreed to get married, but that both were married to other parties. That they went together to a lawyer’s office and employed him to get their respective divorces. That he paid the lawyer’s fee and court costs in both cases. The records of the District Court of Milam County show that his suit for divorce and the aforementioned suit by Penóla for divorce were filed the same day by the same lawyer. Stennett further offered to testify that in January, 1928, both he and Penóla appeared in. the court and that a hearing was had of their respective divorce cases, and that the judge announced the granting of Penóla’s divorce first, and then granted his divorce. The record fully sustains by docket entries and formal judgment the granting of the divorce of Brown Stennett; but contains no entries or minutes showing any action of the court in the case filed by Penóla against James Woods, the deceased. This testimony as to the judge’s announcing the granting of Penola’s divorce was excluded upon the objection of appellee that a judgment of a court of record could not be proved by parol or other extrinsic evidence in this a separate suit.

Under the above stated facts and proceedings, appellant presents the following related questions for determination:

1. That the testimony of Brown Stennett was erroneously excluded, and if admitted it and other facts and circumstances in the record would have raised a jury question as to whether Penóla had been actually divorced from James Woods prior to the time he married Ina.

2. That Ina was shown to be at least the putative wife of James Woods at the time of his death, and entitled to one-half of the insurance or benefits in suit under the terms of Art. 8306, Secs. 8.and 8a, of the Workmen’s Compensation Laws of Texas.

3. That in any event Penóla was es-topped to deny the validity of Ina’s marriage to James Woods und'er an irrefutable presumption that Penóla had been legally divorced from James Woods, arising from the fact of her subsequent marriage to Brown Stennett and the subsequent judgment granting him a divorce from her.

The records of the District Court •showed that no decree of divorce had been actually entered in the suit of Penóla against James Woods for divorce; and that said suit, on which all parties relied and in good faith believed that the divorce had been granted to Penóla, was still pending as a live case on the docket of the court. Appellant could not in this separate and different suit prove by the oral or extrinsic testimony of Brown Stennett that an oral judgment had been announced by the trial judge granting to Penóla a divorce in her said suit. The. record of such a judgment is the best evidence thereof. It can be proved only by the original instrument or a duly certified copy thereof, unless the record has been lost or destroyed. Where no record of the judgment has ever been made, its absence or proof that it was actually rendered may not in another suit' be supplied by oral or extrinsic proof. In such a case the proper procedure is to proceed in the court in which the claimed judgment was rendered to have it entered nunc pro tunc, and, when properly recorded, such judgment will be available as evidence in another suit. Wallis v. Beauchamp, 15 Tex. 303; Brown v. Reese, 67 Tex. 318, 3 S.W. 292; Turley v. Tobin, Tex.Civ.App., 7 S.W.2d 949, error refused. Since the oral or extrinsic testimony of Brown Stennett was not admissible to show that Penóla was granted a divorce by the oral announcement of the judge of the court in which the case was pending, it necessarily follows that such testimony raised no jury question as to whether Penóla had - actually been divorced from James Woods. Nor was there any testimony raising a jury question as to whether Penóla had been granted a divorce in any other suit or county. Penóla testified that she filed only this one suit for divorce and thought that when she paid her lawyer the divorce was granted; but that she never appeared in court in the matter; and that she was never away from Milam county, except on short cotton picking trips. Ina testified that James Woods told her that Penóla had sued for and obtained a divorce against him before their marriage; and from all the evidence, most of which is not controverted, it was conclusively shown that all parties relied only upon and in good faith believed that Penóla had been granted a divorce in her aforementioned suit.

It is true that the subsequent marriage of Penóla to Brown Stennett, and his subsequent divorce from her raised a presumption of fact that Penóla had been previously divorced from James Woods; but such presumption, however,, was merely a rebuttable one, and was conclusively rebutted or disproved by the records of the District Court showing that the divorce had not been granted in the case of Penola in which both women thought it had been granted. The fact that both women in good faith believed that Penóla had been granted'a divorce did not have the effect' of granting a divorce. Floyd v. Fidelity Union Casualty Co., Tex.Civ.App., 13 S.W.2d 909, 913; Moore v. Wooten, Tex.Com.App., 280 S.W. 742; Emory v. Bailey, 111 Tex. 337, 234 S.W. 660, 18 A.L.R. 901; American Surety Co. v. Cross, Tex.Civ.App., 80 S.W.2d 470. And since no divorce-had been granted to Penóla from James Woods in the suit relied upon by all parties, he could not contract a legal marriage with Ina, and she was therefore shown to be only his putative wife at the time of his death; and the next related question presented is whether as such putative wife Ina may recover the insurance or benefits in suit under the terms of the Workmen’s Compensation Laws of Texas.

Whether a putative wife may recover the insurance or benefits resulting from the death of the putative husband is controlled by a construction of Art. 8306, Secs. 8 and 8a, of the Workmen’s Compensation Laws; which specifically name the beneficiaries who are entitled to recover such insurance or benefits. Sec. 8 provides that in case of death of the husband, the insurance or benefits arising shall be paid. Sec. 8a specifically provides to whom the insurance or benefits shall be paid, the material portions reading as follows: “The compensation provided for in the foregoing section of this law shall be for the sole and exclusive benefit * * * of the wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, * * * without regard to the question of dependency, * * * and the amount recovered thereunder shall not be liable for the debts of the 'deceased nor the debts of the beneficiary or beneficiaries * * * provided the right in such beneficiary or beneficiaries to recover compensation for death be determined by the facts that exist at the date of the death of the deceased and that said right be a complete, absolute and vested one. Such compensation shall not pass to the estate of .the deceased to be administered upon, but shall be paid directly to said beneficiaries when the same are capable of taking, under the laws of this State.”

With respect to the character of compensation or rights conferred by this statute, the court in the case of Texas Employers’ Ins. Ass’n v. Boudreaux, Tex.Com.App., 231 S.W. 756, 758, say: “The compensation awarded in this case is neither the community nor separate property of the deceased. It does ‘not pass to the estate of the deceased to be administered upon,’ but is payable directly to those.to whom it is awarded. * * * When awarded for death of the employé, it is in substitution for damages ordinarily recovered by statute because of the death of the employe due to the negligence of the employer. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556. It is measured by the current wages of the deceased, and is to all practical purposes to supply to his beneficiaries the means of support which were afforded by his wages prior to his death. Its payment is provided for ‘from week to week as it accrues,’ except in special cases! The right of the deceased to have compensation paid his beneficiaries in case of his death was acquired by him during coverture. His wages flowing from his contract of employment under which he was working at the time of his death were community property. The compensation measured by his community wages and having its source, as it were, in the same contract of employment, partake more nearly of the nature of community than of separate property; and it should be distributed, in our opinion, according to the statute of descent and distribution applicable in distributing community property. Under this statute the apportionment provided is one-half to the wife and one-half to the children. Article 2469, R.S.1911. Only two of the children being beneficiaries, the proportion should be, as between the wife and children, one-half to the former and one-fóurth each to the latter.”

In the case of Floyd v. Fidelity Union Casualty Co., Tex.Civ.App., 13 S.W.2d 909, 913, the court, after quoting the above language of the statute and a part of the above quotation from the Bou-dreaux case, held that “the statute by express terms precludes participation by * * a putative wife in the compensation to be paid on account of the death” of the employee putative husband. In so contruing the statute in suit -the court -followed the analogy of the decision in the case of Ft. Worth, etc., R. Co. v. Robertson, 103 Tex. 504, 55 Tex.Civ.App. 309, 121 S.W. 202, 204, 131 S.W. 400, Ann.Cas.1913A, 231, wherein the Supreme Court held that a putative wife, who innocently and in good faith married a man having a former undivorced wife, had no interest on his death in his cause of action for personal injuries, which, by the terms of Art. 3353a, Sayles’ Statutes 1897 (now Art. 5525, Vernon’s Ann.Civ.St.) survived in favor of his heirs" and legal representatives. In the Robertson case the decisions relating to the rights' of a putative wife were reviewed at length, and the court specifically limited her rights, holding that “under repeated decisions of our higher courts, it is a settled principle of law that, when a marriage is held to be unlawful, the putative wife, who has assumed and sustained that relation, believing in good faith the marriage to be lawful, will be entitled to one-half of all property acquired by the joint labors of the two, even in the absence of proof of the extent of labor contributed by each.” The court further declared that “no case has been found holding that property not acquired by the joint labors of the partners of a putative marriage would be owned by them jointly, even though the- same might be the community property of the husband and his lawful wife under article 2968” (now Art. 4619, Vernon’s Ann.Civ.St.). And the court further held that a cause of action for personal injuries of Robertson was not property acquired by the joint labors of himself and his putative wife who was living with him at the time he received such injuries ; and under this holding the damages or compensation for personal injuries which resulted in the death of James Woods was not property acquired through the joint labors of the putative wife; and in consequence the'putative wife has no interest in such damages or compensation under the Workmen’s Compensation Laws.

But appellant contends that since Sec. 8a above quoted provides that compensation or benefits arising out of the death of the husband “shall be distributed among the beneficiaries as may be entitled to the same as hereinbefore provided according to the laws of descent and distribution of this State,” and since the court has held that such compensation or benefits partake of the nature of community property, the putative wife, who in ignorance of the former marriage, should be entitled to recover the benefits, as in case of partnership property acquired by the joint labors of the partners. This same contention was made in the Floyd case, and was overruled by the court as follows: “While the statute provides that such compensation shall be distributed among the beneficiaries entitled thereto according to the laws of descent and distribution, such provision is merely a rule of distribution. The right to such compensation .and to participate in the distribution thereof does not accrue to them by inheritance, but by statutory designation. This is illustrated by the tact that stepmothers, who are not, under the provisions of our statutes of descent and distribution, heirs of their stepsons nor entitled to participate in the distribution of their estates, may in certain cases recover compensation for their death as statutory beneficiaries under the provisions of said law. It is further illustrated by the fact that adult children, grandparents, and brothers and sisters of the deceased employee, unless dependent, are excluded from receiving or participating in such compensation, and collateral kindred are entirely excluded therefrom.”

A writ of error was granted in the Floyd case and the judgment of the Court of Civil Appeals was reversed, Tex.Com.App., 24 S.W.2d 363, 364, upon the ground of improper argument of counsel for appel-lee; but in reversing the case for another trial the Supreme Court stated that “all questions- were correctly decided by the Court of Civil Appeals (13 S.W.2d 909), in view of the jury’s findings on special issues submitted to them, unless the assignment of error complaining of improper argument by. counsel for the successful party should have been sustained.” Thus the court directed that the new trial be in accordance with the decision of the Court of Civil Appeals on the merits of the case; and the suggestion that the putative wife question had not been properly raised in the Floyd case is immaterial, because it no doubt would be properly raised on the new trial; and would be controlled by the opinion of the Court of Civil Appeals on the merits of the case. It may also be noted that the wife and her right as involved in the Boudreaux case, Tex.Com.App., 231 S.W. 756, were those of a lawful wife rather than a putative wife, and in consequence the question of proper distribution of the compensation or benefits under the statute in question as to a lawful wife was alone determined.

The following cases hold either specifically or in effect that the word “wife” as used in the above quotation of the Workmen’s Compensation Laws means “lawful wife,” and that a putative wife cannot qualify as a beneficiary under said laws: Green v. Green, Tex.Civ.App., 235 S.W. 980, writ dismissed; Floyd v. Fidelity, etc., Co., Tex.Civ.App., 13 S.W.2d 909, holding approved by Supreme Court, 24 S.W.2d 363, 364; Winder v. Consolidated Underwriters, D.C., 25 F.Supp. 451; Price v. Travelers, etc., Co., D.C., 24 F.Supp. 894; Winder v. Consolidated, etc., Co., 5 Cir., 107 F.2d 973; Consolidated Underwriters v. Kelly, Tex.Com.App., 15 S.W.2d 229. The only workmen’s compensation case cited or found which seems to hold that a putative wife might recover compensation or benefits arising from death of the de facto husband is that of Sanchez v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 51 S.W.2d 818, in which a writ of error was granted, and it was settled before any decision by the Supreme Court.

In the cases of Mendez v. Mendez, Tex.Com.App., 277 S.W. 1055, and Lee v. Lee, 112 Tex. 392, 247 S.W. 828, cited by appellant, the court had-under consideration private insurance contracts, which were either payable to the putative wife, or were declared to be community property acquired during the putative relationship. These cases are not in point.

Several cases construe other statutes of this State in which the word “wife”; or the term “for the sole and exclusive benefit of the * * * surviving wife”, or the term “legal heirs” is used, and each of them hold that “wife” means “lawful wife” as distinguished from putative wife. Lopez v. Missouri, K. & T. R. Co., Tex.Civ.App., 222 S.W. 695; Chapman v. Chapman, 11 Tex.Civ.App. 392, 32 S.W. 564, writ denied; Ft. Worth, etc., R. Co. v. Robertson, supra.

The last related question presented is whether Penóla is estopped to deny the validity of Ina’s marriage to James Woods under an irrefutable presumption that Penóla had been legally divorced from James Woods, arising from the fact of her subsequent marriage to Brown Stennett and the subsequent judgment granting him a divorce from her. As held herein the presumption of divorce was conclusively rebutted or disproved. Such presumption of divorce is not an irrefutable one, and the uncontroverted and conclusive evidence showed that the divorce had not been granted. The question of estoppel is no greater in this case than in the cases above cited. They all hold that before equity will aid the putative wife she must be innocent of any knowledge of the former marriage of the de facto husband. In the instant case, both parties in good faith believed that Penóla had been granted a divorce. But neither estoppel nor good faith belief could grant the divorce; and in consequence Ina could not be the surviving wife. The statute does not make the putative wife a beneficiary. Nor can estoppel repeal the statute by implication or incident, which makes the legal wife the beneficiary. If so, then as stated in the Robertson case, what incidents of a lawful marriage should attach to a putative marriage? The Supreme Court asked this question: “If some of the statutory incidents of a lawful marriage contract are. to be held incidents of a putative marriage contract also, I can perceive no valid reason why all of those incidents should not so attach, and thus give the putative wife the right to plead coverture against her contracts other than for necessaries and for the benefit of her separate estate, an inheritable interest in the separate estate of the husband, homestead rights and all other rights given by statute to a lawful wife. If some of these rights are to attach to the putative marriage contract as incidents thereto, and others denied, where shall the boundary line be drawn between such as do and such as do not so attach ?” The court answered this question by holding that the innocent and good faith putative wife was not the surviving wife within the meaning of the similar statute to that in the instant case. To the same effect are the Green and Floyd cases, above, both of which are workmen’s compensation cases.

The remaining question raised by appellant is that Penóla had abandoned James Woods for a period of more than three years without good cause, and was therefore' precluded by the statute from sharing in the insurance or benefits in suit. Since, as herein held, Ina, the putative wife, had no interest in the compensation or benefits, she had no interest in the question of whether Penóla had without good cause abandoned James Woods. Neither the insurance company nor the guardian ad litem for the minor children of James Woods raised this question, and the Green case concludes the question against appellant, as follows [235 S.W. 982]: “In this case there was no technical abandonment by Catherine of her husband; but if, on a further development of the facts of the case it should appear that she had by her cruelty or indifference to his sickness driven him off, it might preclude her from a recovery of the award, even though she was legally married to him. However, if there was a legal marriage in Waco, there could have been no second legal marriage, and Louisa could not recover. If Caih-erine abandoned her husband for three years, and could not recover, that fact would not constitute the woman of the last marriage a beneficiary, because she would not be a wife.”

By analogy of question and decision thereon, in the opinion of the Supreme Court in the Robertson case, above, the court say: “Although Mrs. Maggie Robertson acted in perfect good faith in her attempted marriage to J. P. Robertson, yet, as it was conclusively shown that he was never divorced from Mrs. Annie Budd, and therefore was legally incapable of contracting a second valid marriage, it follows that Mrs. Maggie Robertson was never the lawful wife of J. P. Robertson. For the same reason Mrs. Annie Budd never changed her legal status, as the lawful wife of J. P. Robertson, by her attempted marriage with John Budd; and the fact that she has not seen fit to become a party to this suit and ask for damages for the injuries in controversy sustained by J. P. Robertson does not affect the question as to whether or not Mrs. Maggie Robertson is entitled to recover. If Mrs. Maggie Robertson was not the lawful wife of J. P. Robertson, then in no sense was she his heir, within the meaning of Sayles’ Ann. [Texas] Civ.St. 1897, art. 3353a.”

The judgment of the trial court will be 'affirmed.

Affirmed.


author: WILLIAMS, Justice. ■

text:
    DAVIS v. BOND et al.
    No. 5627.
    Court of Civil Appeals of Texas. Texarkana.
    June 6, 1940.
    Rehearing Denied June 20, 1940.

      Moore & Moore, of Paris, F. D. Wear, of Austin, and Hiram G. Brown, of Mt. Pleasant, for appellant.
    • J. A. Ward, of Mt. Pleasant, and Sam Billingsley, of Ft. Worth, for appellees.
   WILLIAMS, Justice. ■

This litigation, in its final analysis, involves the question of the delivery of a deed which was executed and acknowledged in due form by Eliza Davis and husband, T. S. Davis, before W. H. Crawford, a notary, on November 23, 1923, filed for record December 24, 1930. The instrument is in the usual form of a warranty deed and purports to convey to her son J. B. (Ben) Bond and to his heirs and assigns forever, lot 2, block 42, of Talco Townsite in Titus County. The consideration expressed reads: “ * * * $100 cash to us paid by J. B. Bond, the receipt of which is acknowledged, and the further consideration that the said Mrs. Davis shall retain possession, use and control of said property hereby conveyed during the remainder of her lifetime and that the said J. B. Bond shall have no control, use or possession of the said property until after the death of the said Eliza Davis.” This lot was the separate property of Mrs. Davis. The $100 was not paid.

In February, 1933, J. B. Bond and Mrs. Davis, then a widow, executed, acknowledged and delivered to H. B. Busby an oil and gas lease covering the lot, being filed for record the same day. The as-signee of Busby developed the lot into oil-producing property under this lease. Busby, his assignee, nor this leasehold are involved in this controversy but ⅛ of the Oil runs held by a pipe'-line company are impounded. Three years subsequent to the execution of the Busby lease' and twelve years after the warranty deed, and after the discovery of oil in the Talco area, Mrs. Davis executed, in February, 1936, three conveyances which purport to "convey to Geo. W. Bond, another son, who had returned to that section, an oil leasehold and % of the royalty covering the lot. He, in turn, assigned the leasehold to one Farrar, and conveyed a part of the royalty to Whalen.

Appellees, Raymond Bond and others, the children and surviving wife of J. B. Bond, who died intestate at Talco on October 23, 1934, filed this suit September IS, 1937, against Nellie Chapman, a daughter of Mrs. Davis, Farrar, and Whalen, all of whom made default, Geo. W. Bond who executed a quitclaim deed to his mother and filed a disclaimer, the pipe line company which tendered into court the proceeds of ⅛ of the oil runs, and Mi's. Davis, who alone contested the suit and who appeals from an .adverse judgment.

Appellees pleaded the execution and acknowledgment of the warranty deed, its delivery to J. R. Bond and recordation of same in the Deed Records of Titus County; the execution and recordation of the Busby lease, the development under same, and the oil runs therefrom; and the re-cordation of the conveyances above mentioned into and out of Geo. W. Bond. They prayed for removal of cloud from title by reason of the recordation of the Geo. W. Bond instruments, for title to the lot and the ⅛ royalty; for appointment of a receiver with authority to collect from the pipe line company the royalties, and to invest same under the orders of the court with all the revenues derived therefrom to be paid to Mrs. Davis during her lifetime, the corpus to be held intact. They did not seek to disturb -her use and enjoyment of the life estate. Mrs. Davis answered with demurrer, denial and plea of not guilty. In the first count of her cross-action (the second count is waived) she alleged trespass to try title in statutory form against appellees and Whalen and sought title and possession.

It is admitted that the deed was deposited with Crawford, the notary, after its execution and acknowledgment. The notary, his wife, Mrs. Davis and husband, were present when the deed was executed and left with the notary. The notary died December 30, 1930, 'and Mr. Davis died prior to 1933. Mrs. Crawford testified that Mrs. Davis stated to Mr. Crawford that “she had already settled with George and Nellie, but had not settled with Ben on some property she had sold, and wanted Ben to have the place and wanted it fixed so that George and Nellie could not get ,it; that Mr. Crawford told Mrs. Davis she could make 'her will and she could tear a will up any time if she wanted to change her mind; and she could make a deed, but when it- was put on record it could not bé torn up and she could not change her mind after she signed it.” Mrs. Crawford detailed a further conversation as to writing the instruments so that Mr. and Mrs. Davis could live upon and use the place until their deaths; and after these explanations and conversations Mrs. Davis told Mr. Crawford she “wanted it fixed so it could riot be changed or torn up and to write a 'deed; that Mrs. Davis did not want George and Nellie to know anything about it fo'r they would not be satisfied with it.”' The deed was thén prepared, read over and explained to Mr. and Mrs. Davis, executed, and acknowledged separately. She heard Mrs. Davis tell Mr. Crawford to keep the deed until it was called for¡ or something to that effect. Neither this conversation, the foregoing alleged statements made by Mrs. Davis and the notary, nor any other detail included above, were expressly denied by Mrs. Davis. The only testimony given by Mrs. Davis in reference to her execution and delivery of the deed to the notary was, “I told Mr. Crawford I wanted to make a will to Ben, afraid I would drop off, and George and my daughter (Nellie) was gone, and to give that'will to,Ben when I dropped off.”'

This deed remained in the Crawford home for' a long time, probably six or seven years. There is no direct evidence as, to when or to whom Mr. Crawford delivered the deed, but it was, filed for record on December 24, 1930, and after its recordation was> delivered by the county clerk to J. ,B. Bond, who paid the recording fee. A certified copy of the deed was used in evidence, the original being missing. After the execution of- the deed J. B. Bond returned to Talco where he resided intermittently near or with his mother until his death. The record indicates that J. B. Bond was living in Arkansas. at the time the deed was executed. Mrs. Davis testified that she- did not instruct Crawford to turn this deqd over to any one at the time it was filed for record; never called for it after it yvas first- left with the notary; and never knew it had been recorded or that Ben was claiming the property, until after Ben’s death.

It is to be observed that after the deed had been recorded Mrs. Davis and J. B. Bond executed the oil and gas -lease. According to- the testimony • of, Busby, he called at Mrs. Davis’ home in 1933 to secure a lease on the lot, and was then informed by Mrs. Davis that the lot- belonged to Ben and to see him. Mrs. Davis, denied that she told Busby that- the lot belonged to Ben, and also claims that she did not know Ben signed the oil lease. She said' she told Busby to see Ben, “because I- can’t read and write, and Ben was living with me and I let him tend to my business.”

The jury found “that Mrs. Eliza Davis left said deed with W. H. Crawford, with instructions that ' it be delivered by him to J. B. Bond,” and “that it was the instruction of Mrs. Davis that such deed should not be delivered to J. B. Bond until her death.” Various findings of fact are set out in the judgment, together with recital that judgment non obstante vere-dicto is entered for plaintiff. These findings will not be detailed • for we conclude from the court’s findings of fact together with those of the jury that the court decreed as a matter of law that the deed was delivered when it was left or deposited with the notary public by the grantor with her instructions to deliver to grantee, and that title then passed subject to the life estate retained in the deed by the grantor. The decree 'cancelled the Geo. W. Bond instruments and removed cloud -from title by reason- of their recordation, and awarded appellees title to the lot and corpus of the oil subject and subordinate to the right of Mrs. Davis to use and enjoy the premises and to receive all -the 'revenues derived from the investments out of the oil runs during the remainder -of her life.

This decree to the effect that title passed subject to the life estate is sustained. As stated by the Supreme Court in Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 536, “The. question of delivery of a deed is one of - intention on the part of the grantor, arid an actual or manual delivery by the grantor in person to the grantee is not essential to pass , the title.” The statements ’ attributed to " Mrs. Davis by Mrs. . Crawford as to hér "reasons and intent in executing the deed in question instead of a will, and of 'having the reservation of a .life estate so incorporated, were not denied- by grantor. No contention is made in pleading or evidence that the execution and delivery of the deed was procured by fraud, accident, . mutual > mistake -or undue influence. We have the manual delivery of the deed with its habendum clause reading, “have granted, sold and conveyed and by these presents do grant, sell and convey unto J. B. Bond, his heirs and assigns forever,” indicative of a present conveyance. The jury has found that Mrs. Davis deposited this deed with the notary and instructed him to deliver same to J. B. Bond upon her death.

The court jn Henry v. Phillips, supra, passing upon a state of facts wherein the grantor had executed a deed, delivered same to a bank for safe keeping with instructions to its cashier to deliver same to the grantees therein upon the grantor’s death, held such manual delivery with such instructions constituted a valid delivery as a matter of law and title then passed. That such act “had precisely the same effect as if he had 'made and delivered the deed to the grantees, conveying them the fee, reserving to himself in the deed the use and enjoyment of the land for and during his natural life.” Substantially to the same effect, involving delivery to a third party, see Slowey v. Hunt, 108 Misc. 222, 177 N.Y.S. 505, wherein one of the grantees died after delivery and prior to the death of grantor; Johnson v. Cooper, 123 Kan. 487, 255 P. 1112, wherein the grantor later secured and destroyed the deed; Peterson v. Bisbee, 191 Mich. 439, 158 N.W. 134, and authorities therein cited, where the deed was burned nine years later in the presence of grantor; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, 87, 137 Am.St.Rep. 567, wherein a father sought to cancel his deed to his daughter after its delivery; Hudson v. Hudson, 287 Ill. 286, 122 N.E. 497, wherein a father later secured, and destroyed his deed after delivery and attempted to dispose of the property by will; Earl v. Munday, Tex.Civ.App., 227 S.W. 970, writ refused, where after delivery the property is attempted to be disposed of by will; Griffis v. Payne, 92 Tex. 293, 47 S.W. 973. See also Davis v. Zeanon, Tex.Civ.App., 111 S.W.2d 772; Temple v. City of Coleman, Tex.Civ.App., 245 S.W. 264, 267; Burke v. Adams, 80 Mo. 504, 50 Am.Rep. 510.

Mrs. Davis would have made favorable answers to two questions propounded by her counsel, reading: “Was it your intention at that time to sign a paper that would give this property, or any part of it, to Ben’s children if Ben should die before you did?” “Was it your intention and purpose when and after you signed that paper to put it beyond your control £o change it if Ben Bond should die before you did?” The action of the court in sustaining the objection and refusing to permit her to answer same is sustained. In words of the Supreme Court of Illinois in Hudson v. Hudson, supra, [287 Ill. 286, 122 N.E. 501], applicable here, “A subsequent change of intention could not affect the delivery thus completed, and even a mental reservation of the testator contrary to that expressed by his words and deeds, existing only in his own mind, would not invalidate the delivery effected by his acts and the words actually used.” See also Lott v. Kaiser, 61 Tex. 665. “This intention is to be inferred from all the acts and declarations of the grantor. As has been many times said, a deed may be delivered by words without acts, or by acts without words, or by both words and acts.” 16 Am.Jur. p. 505; Burke v. Adams, supra. Bearing upon this issue see also Henry v. Phillips, supra, and Earl v. Munday, supra.

In the decree, the proceeds of the ⅛ royalty received and to be received were impounded in the receiver with authority under future orders of the court to invest same in revenue-bearing securities. The receiver was directed to pay to Mrs. Davis during her lifetime all the revenue received from such investments, and to appellees the corpus upon her death. To this, appellants assert under the fourth proposition: “If it should be assumed that no competent evidence was excluded and that the evidence admitted shows conclusively that the deed from Mrs. Davis to J. B. Bond - was delivered, nevertheless Mrs. Davis is entitled to all the oil royalties, because she is a conventional life tenant as distinguished from a legal life tenant, and her estate is therefore not impeachable for waste.”

In this connection reference is made by appellant to an expression in Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986, 8 Ann.Cas. 1117, to the effect that at common law a conventional life estate was not impeachable for waste unless expressly made so by the conveyance. This expression was dictum and not necessary to the disposition of that cause. Tiedman on Real Property, 1924 Ed., p. 73, in the treatment of this subject states that in early times above rule applied, but subsequently, by the Statute of Marlbridge, enacted A. D. 1267, the disability of committing waste was made an ordinary and general incident to all kinds of estates for life and for years. And the statute of Glouchester, enacted A. D. 1278, imposed upon the party committing such waste a penalty of treble damages with forfeiture of the estate. See Moore v. Townshend, 33 N.J.L. 284. Evidently for many centuries prior to the enactment of Article 1 of our Revised Civil Statutes conventional life estates were impeachable for waste. Cooley’s Blackstone, Vol. 2, Sec. 120, so treats the subject; likewise Tiedman on Real Property, supra. In Summers Oil & Gas, Permanent Ed., Vol. 1, page 88, § 33 it is stated: “Tenants created by acts of party, by deed, devise or contract for life or years, have been held under a duty not to take oil or gas, as against the remainderman or reversioner,” citing decisions from several states. As stated by Mr. A. W. Walker, Jr., in the 6th Texas Law Review, page 142: “* * * practically all of the states have allowed an action on the case for waste, citing 1 Tiffany, Real Property, 1920 Ed. p. 981, and have permitted recovery against all tenants regardless of the method of creation of their estate.” See also 21 C.J. p. 948, Sec. 87.

The land was not under lease nor had it been devoted to mining purposes prior to the creation of what may here be termed a conventional life estate. Here the oil and gas in place was a part of the realty. The warranty deed into J. B. Bond and his heirs, above detailed, contains no provision which retains or reserves to the grantor any corpus of the realty. Under the facts in this case and authorities cited, it is concluded, in the absence of the Busby lease, that the life tenant, Mrs. Davis, would have no authority to produce oil from this land, for such act would be an appropriation of a part of the corpus of the estate. Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A.1917F, 989; Amarillo Oil Co. v. McBride, Tex.Civ.App., 67 S.W.2d 1098; Blakley v. Marshall, 174 Pa. 425, 34 A. 564; Williamson v. Jones, 43 W. Va. 562, 27 S.E. 411, 38 L.R.A. 694, 64 Am.St.Rep. 891; 21 C.J. p. 947.

The provisions in the oil lease are not attacked. The lease is silent as to division of the royalty payments. The decree entered is in keeping with above conclusion and with the decree in Swayne v. Lone Acre Oil Co., supra, where a legal life' estate was involved. Appellant’s fourth proposition is overruled.

The first proposition has been considered and is overruled.

The judgment is affirmed.