text:
    UNSELL v. FEDERAL LAND BANK OF HOUSTON et al.
    No. 5456.
    Court of Civil Appeals of Texas. Texarkana.
    March 7, 1940.
    Rehearing Denied March 21, 1940.

      Hutchison & Fisher, of Paris, for appellant.
    Carl Runge and H. A. Berry, both of Houston, and R. H. Good, of Cooper, for appellees.
   JOHNSON, Chief Justice.

S. C. Unsell, Sr., of Delta County, Texas, died March 29, 1911, seized and possessed of real and personal property of the value of $35,000, same being community property between himself and his second wife, Florence Unsell. He owed debts not in excess of $50. No administration was had upon his estate. He was survived by his said wife, Florence Un-sell, and by two children, H. D. Unsell who was a child by his first marriage, and S. C. Unsell, Jr., who was a child by his second marriage. Said Florence Unsell, H. D. Unsell, and S. C. Unsell, Jr., were the sole surviving heirs of S. C. Unsell, Jr., deceased. Prior to his death S. C. Unsell, Sr., executed the following writing:

“State of Texas ") Know All Men by “County of Delta J These Presents:
“That I, S. C. Unsell of the County of Delta and State of aforesaid, for and in c.onsideration of the sum of Ten Dollars to me in hand paid by Florence M. Un-sell as follows: Cash — and a further consideration for love and affection I have for my wife — and to arrange my business as I want it prior to my death — have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Florence M. Unsell of the County of Delta and State of Texas, all that certain tracts or parcels of land in Delta and other counties in Texas and other states — in which I may own property at my death — all my lands and town lots as per deeds on record in said' Counties, originals now in my possession — Also all my notes, accounts, money, Bank-Stock and all other things of value at my death that I may have—
“Except from this that my son H. D. Unsell have, if living at my death, and if not living, his legal and lawful child or children (only not his wife) to have the following, Real Estate to the value of $2060.00 it being the entire value of our property at his Mother’s death as per Inventory of record in Probate Minutes of Delta Co. Texas — Book G — Pgs 211&212. Said real Estate to be selected from the land I may own at my death — Excluding from this our 2 acre homestead we now live on — by three of the following men — to be selected by one by my wife & one by my Son — & the 3rd to be selected by these two if not agreed on by said wife & .son. In case either the said wife or son be dead — leaving a minor or minors then & in that event the County Judge of Delta County may act in her or his stead & if both dead he select the 3 men from the following: Chas Naylor, G. B. Simmons, S. J. Smith, Tom Gardner, C. C. Dunnegan, L. E. Stell, Arthur Darwin, Ed Hendrix, A. T. Stell and Sam Morgan—
“When said Real Estate is selected by said 3 parties the deed is to be made by' F. M. Unsell to be in force and effect and absolute only when he is 25 years old— And should he mortgage or sell the same or a part of same prior to the time he is 25 years old then, I herein retain a vendor’s lien on the entire amount so. deeded for my half interest in said inventory for-$1030 payable when said sale or mortgage is executed or made — the said F. M. Un-sell her heirs or assigns — bearing 10% interest from said date & attorney fees if placed for collection. The said 3 persons will also select from my stock after F. M. Unsell has 1st & 2nd choice two horses or mules — and 2 cattle — and to be subject to a lien herein retained as on said real estate if sale is made or mortgage is executed to any one except F. M. Un-sell, but granting power to sell any or all of said real estate or personal property to her and to her only — This deed held by me & subject to any change I may see fit to make prior to my death — reserving the right to do as I like with the property so long as I live then this to be in full force.
“To have and to hold, the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said F. M. Unsell her heirs and assigns, forever. And I do hereby bind myself & my executors and administrators to'Warrant and Forever Defend, all and singular, the said premises unto the said F. M. Unsell her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof.
“But it is expressly agreed and stipulated that the Vendor’s lien is retained against the above described property, premises and improvements that may be selected & all stock until the above described liens & requirements are met and all interest thereon, are fully paid and complied with according to the face and tenor hereof effect and reading, when the deed shall become absolute.
“Witness my hand at Cooper, Texas, this 21 day of July, A. D. 1910.
“S. C Unsell for myself and as Survivor of Estate of Mattie Unsell, Deed.”

The instrument was witnessed by three witnesses and was acknowledged by S. C. Unsell, Sr., before the County Clerk of Delta County, in the manner and form prescribed by law authorizing deeds and other instruments- to be recorded in the office of the County Clerk., The instrument was never delivered or recorded by S. C. Unsell, Sr. He retained exclusive possession and control of the instrument during his lifetime. After his death it was found among his papers in his private safety deposit box in the First National Bank of Cooper, Texas, by his widow, Mrs. Florence Unsell, who had no previous knowledge of its execution. Mrs. Florence Unsell took possession of the instrument -and on March 31, 1911, filed it for record and it was on the same day recorded in Deed Records of Delta County, the county in which the land here involved was located. The instrument was never probated nor offered for probate. Mrs. Florence Unsell immediately took possession of all the community property of herself and her deceased husband, both real and personal. April 1, 1911, she purchased for valuable consideration the undivided interest of H. D. Unsell in said estate. Of the remainder she sold’ and converted the personal property to her own use and benefit, and likewise disposed of all the land, except 140.44 acres, of the value of $2,500.

Florence Unsell married M. J. Thomas, the date of which marriage is not shown. After her marriage to M. J, Thomas and after conversion of that portion above mentioned of the community property of herself and deceased husband, S. C. Un-sell, Sr., said Florence Unsell Thomas and husband, M. J. Thomas, on August 11, 1922, borrowed $6,800 from the Federal Land Bank of Houston, for which they executed to said bank their note payable in semiannual installments, the last of which is due June 1, 1957. To secure the payment of said indebtedness Florence Unsell Thomas, joined by her husband, M. J. Thomas, executed to said bank a deed of trust covering said 140.44 acres of land, and alsp covering 118.8 acres of land belonging to the separate estate of Florence Unsell Thomas. The note and deed of trust were dated and delivered August 11, 1922. The bank accepted the note and deed of trust and disbursed the ■ $6,800 in good faith and without notice that Florence Unsell Thomas was not the absolute owner of all said land, except if and as impaired by the fact that said bank had actual notice of the existence and contents of the above-mentioned instrument executed by S. C. Unsell, Sr., and as may be affected by the fact that said instrument was never delivered, and by the fact that the bank failed to make any inquiry as to the existence or. non-existence of children of said S. C. Unsell, Sr., deceased. Mrs. Florence Unsell Thomas has continuously since the dáte .of her entry, March 31, 1911, held peaceable and adverse possession of the 140.44 acres in controversy, cultivating, using and enjoying the same, and claiming the title thereto under the above-mentioned instrument for a period of more than twenty-five years. Her claim has been in good faith, except if and as impaired, as a matter of law, by her own acts in knowingly procuring the undelivered instrument, placing it of record and claiming to have acquired title under it.

S. C. Unsell, Jr., became twenty-one years of age October 27, 1928.' He has received nothing from the estate of his ■father, of which he inherited a ½ undivided interest. After repeated requests for an accounting ■ were refused by Mrs. Florence Unsell Thomas, the said S. C. Unsell, Jr., filed this suit, May 29, 1936, against said Florence Unsell Thomas and husband, M. J. Thomas, and against the Federal Land Bank of Houston,, in trespass to -try title against all defendants and for an accounting by Mrs. Florence Un-sell Thomas for the remaining portion of the estate inherited by him from his father. The count in trespass to try title describes 259.24 acres of land, 118.8 of which is conceded to be the separate property of Mrs. Florence U. Thomas, and has been eliminated from the controversy by plaintiff, leaving, as to the land here in controversy, only the 140.44 acres inherited by plaintiff from his father.

The Federal Land Bank of Houston answered by general demurrer, special exceptions, general denial, a plea of not .guilty, and specially pleaded, among others, the statute of 25 years’ limitation. Article 5519, Vernon’s Ann.Civ.St.

The case was tried to the court without a jury, upon an agreed statement of facts. The trial court also filed his findings of fact and conclusions of law, in which he found in favor of the defendants on their plea of 25 years’ limitation, construing the writing signed by S. C. Unsell, Sr., as being an instrument “purporting to convey” title within the meaning of Article 5519, and upon that ground rendered judgment that plaintiff take nothing by reason of the suit. The judgment also denied plaintiff any recovery on his action for an accounting against Mrs. Florence U. Thomas. Plaintiff has appealed.

It is the contention of appellant that the trial court erred in holding that the writing executed by S. C. Unsell, Sr., within the meaning of Article 5519, an instrument “purporting to. convey” the land to Mrs. Florence U. Thomas, and upon that ground sustaining appellees’ plea of title under the statute of 25 years’ limitation.

Appellee Federal Land Bank of Houston contends: “The only question before this Court is whether the instrument executed by S. C. Unsell, Sr., to Florence U. Thomas, is sufficient as a deed or instrument purporting to convey the land to support title by adverse possession of 25 years under Article 5519”, and that the trial court correctly held that the instrument “purported to convey” the land to Mrs. Florence U. Thomas.

The record fails to show that any answer was filed by appellees Mrs. Florence U. Thomas and husband, M. J. Thomas, and no brief has been filed by them in this court.

Article 5519 as amended by Acts of 1927, 40th Legislature, p. 369, C 250, § 1, Vernon’s Ann.Civ.St. art. 5519, in that part here material, reads as follows: “No person who has a right of action for the recovery of real estate shall be permitted to maintain an action therefor against any person having peaceable and adverse possession of such real estate for a period of twenty-five years prior to the filing of such action, under claim of right, in good faith, under a deed or deeds, or any instrument or instruments, purporting to convey the same, which deed or deeds or instrument or instruments purporting to convey the same have been recorded in the deed records of the county in which the real estate or a part thereof is situated * * and by instrument purporting to convey shall be meant any instrument in form of a deed or which contains language showing an intention to convey even though such instrument, for want of proper execution or for other cause is void on its face or in fact.”

It will be noted that in addition to the general import of the writing signed by S. C. Unsell, Sr., as intending to direct the disposition to be made after his death of that portion of his estate, real and personal, not previously and otherwise disposed of by him, the instrument expressly provides: “This deed held by me & subject to any change I may see fit to make prior to my death — reserving the right to do as I like with the property so long as I live then this to be in full force.” This language clearly shows the intention of the maker not to deliver but to hold exclusive possession and control of the instrument (which in fact he did) during his lifetime and that it should not take effect until his death, and then only if he had not exercised his right and authority expressly retained therein to revoke the instrument and otherwise dispose of the property during his lifetime. The writing is not a deed, and is in part only in form of a deed. It does not purport to convey the land, but, to the contrary, it purports to retain in the maker the complete right to otherwise dispose of the property as he may desire during his lifetime. It shows the intention not to convey or presently vest any estate or interest in the land, but, to the contrary, that the writing shall take effect only upon the maker’s death, and then only in the event he has not changed or revoked it or has not otherwise disposed of the property during his lifetime. All of which appears upon the face of the instrument, hence it does not meet the requirements of Article 5519, as being a deed or other instrument “purporting to convey” the land. The instrument is purely testamentary in character. In Carlton v. Cameron, 54 Tex. 72, 38 Am.Rep. 620, an instrument otherwise in form of a deed but reciting: “The said Abner Lee holding in reserve all the within named estates, both real and personal, during the natural life of the said Abner Lee” — was held to be testamentary in character and not a conveyance. In Wren v. Coffey, Tex.Civ.App., 26 S.W. 142, 143, an instrument otherwise in form of deed but reciting: “* * * should we not sell or dispose of the same before •death”, was, as to the land referred to, held to be an express retention of the power of alienation on the part of the makers during their lifetime, and in effect a declaration of intention not to divest title out of them; and was testamentary in character and not a conveyance. In Naugher v. Patterson, 9 Tex.Civ.App. 168, 28 S.W. 582, 583, an instrument otherwise in form of a deed but reciting “it being, however, understood between me, the said Patterson, and the said Naugher, that this conveyance is not to take effect until my death”, was held to "be testamentary in character and not a ■conveyance, See 14 T.J. 755, Secs. 7, 8 .and 9.

Appellant makes the further contention, in substance, that should the writing executed by S. C. Unsell, Sr., be held to be a deed or instrument purporting to ■convey title, since it was never delivered -and shows an intention not to convey or to be delivered by the maker, the acts of Mrs. Florence U. Thomas in procuring possession of the undelivered deed after the death of the maker from among his private papers and placing it of record and •claiming title to the land under it, would, .as a matter of law, be not a claim “in .good faith” within the meaning of those words as used in Article 5519. It appears that the contention is sound. The trial court found that the instrument was never delivered. The finding is supported by the agreed facts and by the maker’s intention expressed in the instrument not to deliver it. McCartney v. McCartney, 93 Tex. 359, 55 S.W. 310. The instrument executed by S. C. Unsell, Sr., was not even deposited in escrow, nor is there .any evidence of any fact or circumstance that would estop him or the plaintiff from -showing such non-delivery, and no such ■ estoppel was pleaded by the defendants.. It is held to be as essential to the validity of a deed that it be delivered as it is that it be signed. 14 T.J. 818, Sec. 56. In total absence, as here, of any facts or circumstances which would tend to raise the issue of estoppel the conduct of a person named therein as grantee in procuring possession of an undelivered deed and claiming title under it is in law condemned as more than a mere fraud. It is spoken of in decisions as being comparable to forgery, and is condemned to the extent that his vendee, for value and without notice, is not protected as an innocent purchaser. Steffins v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823; Garner v. Risinger, 35 Tex.Civ.App. 378, 81 S.W. 343; Link v. Page, 72 Tex. 592, 10 S.W. 699; Houston Land & Trust Co. v. Hubbard, 37 Tex.Civ.App. 546, 85 S.W. 474; Hapgood v. City National Bank, Tex.Civ.App., 230 S.W. 775; King v. Diffey, Tex.Civ.App., 192 S.W. 262.

The 25 years’ statute of limitation, Article 5519, expressly requires that the person claiming under the deed must have done so “in good faith.” Words of like import are found in the statute, Article 5508, defining “color of title” as used in the three year statute of limitation, Article 5507, namely, the words not wanting in “intrinsic fairness and honesty.” In construing those statutes our courts have held that any acts of a person amounting to fraud or lack of intrinsic fairness and honesty in procuring his claim will, as a matter of law, discolor it to the extent that he can not invoke the statute as a bar. Marsh v. Weir, 21 Tex. 97; Hussey v. Moser, 70 Tex. 42, 7 S.W. 606; Snowden v. Rush, 69 Tex. 593, 6 S.W. 767; Neal v. Pickett, Tex.Com.App., 280 S.W. 748. By like reasoning we think that the acts of one named as grantee in a deed not intended to be delivered and not delivered who takes it from among the private papers of the deceased maker, records it, and claims title under it, would discolor such claim to the extent that as a matter of law it must be held not made “in good faith” within the meaning of those words as used in the statute. And it would be no answer to say that such person was in fact unacquainted with the law that condemns such acts, for “the presumption is conclusive that every person knows the * * * law by which the conduct of all persons is to be governed in any particular character of transaction.” Ferris v. Langston, Tex.Civ.App., 253 S.W. 309, 311.

We think that plaintiff should recover against all the defendants the 140.44 acres of land inherited by him from his father, and that he is entitled to recover of his mother, Mrs. Florence Unsell Thomas, in an accounting by her, the value of the remaining portion of the estate inherited by him from his father, S. C. Unsell, Sr, Wherefore, the judgment of the trial court will be reversed and judgment here rendered that plaintiff recover title and possession of said 140.44 acres of land; and as to his action against Mrs. Florence Un-sell Thomas for an accounting of the remainder of the estate inherited by him from his father, the cause will be remanded.

Reversed and rendered in part, remanded in part.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    HOPKINS v. ROBERTSON et al.
    No. 13996.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1939.
    Rehearing Denied March 29, 1940.

      George M. Hopkins, of Denton, for appellant.
    Weldon O. Calhoun and Davis & Davis, all of Denton, for appellees.
   BROWN, Justice.

Robert H. Hopkins, attorney and counselor at law, who had long lived and practiced his profession in the City of Denton, Denton County, Texas, died February 1, 1938, and his wife, Mrs. Maude M. Hopkins, qualified as administratrix of deceased’s estate and took possession of and removed, from the former offices of the deceased, the entire library and furniture and office equipment that had been used by deceased during his life and up to the day of his death.

Appellee Mrs. Avis Hopkins, who' was in nowise related to the deceased, but who had been secretary and stenographer for him, acting in such capacities' 'for several years, brought suit against Mrs. Maude Hopkins, alleging conversion of such personal property by Mrs. Maiide Hopkins, and alleged that such personal property belonged to her, Mrs. Avis Hopkins, by virtue of the execution and delivery to her by the deceased of a bill of sale which conveyed the title to said property.

Voluminous pleadings and amendments were filed by all parties, but we do not think that we should lengthen this opinion by going into all of. the details, since we believe-that the case presents only simple, questions for our review 'and determination. . .

■ Suffice it to say that Avis Hopkins married one Eber Robertson, after she filed suit herein, and by amendment the husband joined the wife as a plaintiff, and it was alleged that the bill of sale, relied upon to show title in Avis Robertson, after delivery to her, was placed in a file in the offices occupied by her and Robert H. Hopkins, and it was alleged that Mrs. Maude Hopkins took same when she removed all personal property from such offices, and the plaintiffs gave notice to produce the instrument at the trial of the case, and’ that secondary evidence would be introduced to establish the execution and delivery of same.

The defendant answered by general demurrer, special exceptions, a general denial, and specifically pleaded that if any such bill of sale as that alleged by plaintiffs was ever executed by Robert H. Hopkins, same was procured by undue influence, and further that the execution thereof was in fraud of the rights of the said surviving wife,, and in fraud of the rights of the creditors of the deceased, and- alleged that the property belonging to Robert H. Hopkins, at the time of his death, was insufficient to pay the debts owing by the deceased, unless the personal property claimed by Avis Robertson is included in the assets of the estate.

The case was tried to a jury and nine spécial issues were submitted to the jury, on which the following findings were made: (1) that Robert H. Hopkins signed a ■ bill of sale to the personal property involved in this suit conveying the same to Avis Robertson, (2) that Hopkins “acknowledged” the execution of such instrument before R. B. Gambill, (3) that Hopkins delivered such bill of sale to Avis < Hopkins, (4) that the bill of sale was executed in consideration of services rendered and to be rendered by Avis' Robertson. ' The answer to issues 5, 6, 11 and 12 find the values of the designated personal property aggregating $1,645. The thirteenth issue asked the jury to find whether or not the execution of the bill of sale, by Robert H. Hopkins, if same was executed by him, was procured by undue influence exerted by Avis- Robertson over Robert H. Hopkins. The jury did not answer this issue.

" After motion on the part of plaintiff, the trial court rendered judgment for plaintiff for the valúe of thé’ personal property ■ but' expressly provided that in the event the property is delivered to 'plaintiff the judgment shall he credited with' the value of the property so returned. The judgment is against Mrs. Maude M. Hopkins, individually and as administra-trix. From this judgment she has appealed, and we find fifty assignments of error and twenty-six propositions in the brief.

The view we take of this case constrains us to discuss only a few of the points raised.

We see no merit in the contention that the probate court alone has jurisdiction of this cause of action.

In the first place it appears that this record does not disclose that the plaintiff is urging a claim against the estate of Robert H. Hopkins, deceased; on the other hand, it affirmatively appears that the defendant, acting individually and as administratrix of the estate of the deceased, has taken possession of personal property which the plaintiff asserts is owned by plaintiff.

We do not think citation of authorities is necessary to sustain us in our judgment.

The same rule of law applies as that which would compel the claimant to bring suit in the district court to recover real property held under like circumstances.

The plea in abatement is not well taken.

There is no merit in the contention that having taken the ex parte deposition of the plaintiff and she having refused to answer a certain question propounded to her, the answer must be taken as confessed and judgment should have been rendered against her denying recovery of the personal property, or its value.

Even if the question had been answered, it does not appear how any light could have been shed on the issues presented in this case.

An examination of the question sheds no light on what the answer would have been, and it was not propounded so as to furnish an answer. The question simply asked the plaintiff to give a list of all property, not including wearing apparel, that she had acquired during the last two years, to state where same was acquired, what was paid therefor and how the payments were made.

The mere fact that the plaintiff had sued for the title to and possession of certain personal property alleged to have been acquired by her through a bill of sale, and refused to answer the above mentioned question and was unable, on the trial, to produce the bill of sale, does not, in our opinion, change the rule of law and did not require the trial court to give the defendant a peremptory charge.

We see no merit in the contention that, the personal property being a part of the community estate, the court erred in rendering judgment for the plaintiff.

No citation of authorities is necessary to support the right of the husband to sell and convey a portion of the community estate without the joinder of his wife. And, unless the sale or transfer were made without any consideration passing and was done in fraud of the wife’s rights, the title would pass.

The plaintiff proved by a resident citizen, a lawyer, whose reputation for truth and fair dealing was not attempted to be assailed, that the deceased called him to deceased’s office, that deceased had a bill of sale in his hand, told the witness what it purported to convey and to whom it was conveyed, and requested the witness to take his acknowledgment of the execution of same, that deceased told the witness why he wanted this done, that witness did as he was requested to do, and that the bill of sale was then and there delivered to the plaintiff. This witness detailed the substance of the instrument. He was corroborated by other witnesses whose testimony is not impeached.

The plaintiff testified to placing the bill of sale in a certain file in the offices occupied by her and the deceased, and accounted for not being able to produce it in open court.

The jury found that the bill of sale was executed and delivered and that it was executed and delivered for a valuable consideration.

Frankly, with such testimony before the jury, none of which is contradicted and none of the witnesses so testifying having been impeached, we do not see how any other verdict could have been returned.

We see no merit in the contention that the plaintiff should have been required to elect as to her remedies, that is, that she should have elected to recover the value of the personal property, or the title to and possession of the same.

We do not view the judgment, in the light of the criticism urged, as being such as it is asserted to be.

We think the trial court rendered a judgment that was most equitable and fair to the defendant. A money judgment has been rendered against the defendant for the value of the personal property taken and • held by her, but by the very terms of the judgment the defendant may discharge it by returning the personal property to the plaintiff.

We find here no double recovery and no injustice done the defendant.

Without going into the evidence adduced before the court, we hold that the trial court correctly found that there is no evidence to support the issue covering “undue influence” (issue No. 13, supra). The issue therefore was not material.

We see no merit in the contentions made with reference to ,the refusal of the trial court to give a number of special issues requested by the defendant.

These issues fall into two classes, namely: those that touch upon matters submitted by the court in the charge, and those not raised by the evidence.

We see no merit in the contention that the plaintiff was permitted to testify to transactions with the deceased, in contravention of the statute. Art. 3716, R.C. S.

In the instant suit the defendant took the ex parte deposition of the plaintiff and specifically interrogated her about the bill of sale in question. Under such circumstances, the plaintiff had a perfect right to go on the witness stand during the trial and testify fully concerning the execution and delivery of the bill of sale, and to all facts attendant upon its execution and delivery. And this is true even where the ex parte deposition is not put in evidence by the opposing party who caused it to be taken. Our Supreme Court so holds. See Allen v. Pollard, 109 Tex. 536, 212 S.W. 468.

The trial court did not err in permitting the plaintiff to testify, as was done, but should have permitted her to testify more in detail concerning the matters about which she was interrogated in the ex parte deposition, if she had offered to do so. Furthermore, the testimony, which was given by the plaintiff and of which complaint is made, presents the identical question decided in Choate v. Huff et al., 4 Willson, Civ.Cas.Ct.App. § 280, 18 S.W. 87, 88. In that case it is said: “Appellant proposed to prove, when upon the stand as a witness, that he had lost a note which purported to have been signed by the deceased, and given to him, and which was the subject-matter of this suit. * * * We are of opinion that the statute quoted [now Art. 3716, R.C.S.] is not intended to prohibit a party from testifying to things which are independent of the act or transaction on the part of the deceased; in other words, if this appellant could testify that he at one time had in his possession a note which purported to be signed by the deceased, and which note had subsequently been lost by him, such fact was certainly a fact independent of any act on, the part of or transaction with the deceased. It would still be a question, and which fact is the very question in this case, as to whether or not the deceased had executed such a note as the one sued on. While such testimony was offered for the purpose of proving the independent fact that the plaintiff had had in his possession such a note, it could not be used as evidence of the fact that deceased had .executed such note, and the court should, under the circumstances, have admitted the testimony, and have so instructed the jury.”

That is exactly what the trial court did in the instant suit — admitted the testimony and limited it by appropriate instruction. The above cited authority is followed and cited in Horst v. Tobin et al., Tex.Civ.App., 18 S.W.2d 221, 224, writ refused, in which we find a quotation from Mr. Justice Gaines in the case of Moores v. Wills, 69 Tex. 109, 5 S.W. 675, speaking of the rule laid down by Art. 3716, R.C.S.: “ * * * the rule would not apply as to facts and circumstances which, though affecting a transaction, constituted no part of it.”

We have carefully examined all propositions and all assignments of error and after duly considering same we overrule, them.

The judgment of the trial court is affirmed.


text:
    DIXIE MOTOR COACH CORPORATION v. WATSON.
    No. 14042.
    Court of Civil Appeals of Texas. Fort Worth.
    March 8, 1940.
    Barnes & McElroy, of Terrell, for appellant.
    Philip S. Kouri, of Wichita Falls, for appellee.
   BROWN, Justice.

Appellee, Geneva Watson, who was and is married to Wylie Watson, brought suit against appellant for personal injuries alleged to have been sustained by her while a passenger on one of appellant’s motor buses, and her husband joins in the suit “pro forma”. The prayer is that plaintiff have judgment for her damages.

The suit having been brought in the District Court of Wichita County, the defendant filed a plea of privilege to be sued in Dallas County.

Defendant below and appellant here was sued by the name “Dixie Motor Coach Corporation” and was sued as a corporation.

The plea of privilege recites that “Dixie Motor Coach Corporation, defendant in the above entitled and numbered cause”, comes, etc.; the plea of 'privilege refers to the defendant as “it”, and the plea, is signed “Dixie Motor Coach Corp. by A. W. Riter, Defendant”, and it is sworn to by A. W. Riter, who makes oath that “be is President of the Dixie Motor Coach. Corporation”, etc.

The plea of privilege was contested by plaintiff and venue was alleged under Sections 23, 24 and 27 of Article 1995, Rev.Civ.Statutes.

After a hearing the plea was overruled, and from that order defendant has appealed.

We see no merit in the contention that the evidence fails to show that the defendant is a corporation. - We believe that the plea of privilege' establishes that fact and that it was not necessary for the plaintiff to prove it.

We so held in General Motors Acceptance Corporation v. Lee, Tex.Civ.App., 120 S.W.2d 622, and cited Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, in support of our holding.

Furthermore, we believe that the testimony of one of plaintiff’s witnesses that •he had ridden a “Dixie Motor Coach ■ ■ Corporation” bus, that-he bought a round trip ticket to ride, on it from Wichita Falls, Texas, to Sherman, Texas, and back to Wichita Falls, that the ticket was bought in the Holt Hotel, in Wichita Falls, where a sign was displayed: “Dixie Motor Coach Corporation”, that he boarded the bus “at the station”, and the bus had “Dixie Motor Coach Corporation” on it, and that the day before the witness was testifying, he saw a “Dixie Motor Coach Corporation bus”, in the City of Wichita Falls, carrying passengers, was sufficient evidence on which the trial court could find that the defendant is a common carrier and that it maintains an agent or representative in Wichita County, who sells tickets to passengers intending to ride in its buses.

But we feel that this case must be tried again;

The plaintiff Geneva Watson was a married woman when her alleged cause of action arose, and she was living with her husband. The husband has the control of the community property during the existence of the marriage relations. He is not simply a proper party to a suit brought 'to recover damages for personal injuries to the wife; , he is the necessary party. He may join the wife as a plaintiff with him, and if no plea of misjoinder be interposed, she remains a party plaintiff.

If the husband refuses to bring suit for damages occasioned by personal injuries sustained by the wife, she may, under proper pleadings, bring suit, but no such situation appears here. “Pro forma” means, “As a matter of form”.

When a married woman is sued, under our practice, we make the husband a party defendant “pro forma”, becaüse no judgment is sought against him. He is not personally concerned with the -outcome of the suit, in that no recovery, personally, is to be had against him, but a husband cannot be simply a "pro forma” plaintiff, in such ⅛ suit as is here presented.

We think that the plaintiff’s petition is subject to a general demurrer.

We notice that a,pauper’s oath was filed by Geneva Watson, in the trial court, but none was filed by her husband. We hold that he is required to give security for costs, or make an affidavit in forma pauperis.

For the reasons stated, the judgment is reversed and the cause remanded.


author: HICKMAN; Commissioner.

text:
    FLEMING et al. v. HOUSTON LIGHTING & POWER CO.
    No. 7621.
    Supreme Court of Texas.
    April 3, 1940.
    Fulbright, Crooker & Freeman, A. J. Lamonte, C: A. Leddy, and Robt. L. Son-field, all of Houston, for plaintiffs in error.
    Sewall Myer, City Atty., and Vernon Coe and Will Sears, Assistants City Atty., all . of Houston, Amici Curiae.
    W. P. Hamblen, F. G. Coates, and Baker, Botts, Andrews & Wharton, all of Houston, for defendant in error.
   HICKMAN; Commissioner.

Plaintiffs in error, are the City of West University Place and its .officers. They will be referred to collectively as the City. Defendant in error Houston Lighting and Power Company is a Texas corporation engaged in the business of generating, transmitting and distributing electric current for use by the public. It will be called the Company. The City was incorporated in 1925 by general law. From 1925 to 1930 the Company furnished electric service to the City and its inhabitants without having the formal consent of the City. In 1930 the City adopted a franchise ordinance, which was accepted by the Company, and which is set out in full as an exhibit to the opinion of the Court of Civil Appeals. See Exhibit “B”, 128 S.W.2d 494. The franchise granted by the ordinance is still in force and effect, the same having been granted for a period of fifty years. In January, 1938, the City adopted Ordinance No. 129, which is set out in full as Exhibit “A” to the opinion of the Court of Civil Appeals. See 128 S.W.2d 493. Shortly after the adoption of that ordinance the present suit was instituted by the Company in the form of an action to enjoin the enforcement thereof on the ground that same was void. The trial court upheld the validity of the ordinance and denied the relief prayed for. The Court of Civil Appeals reversed the judgment of the trial court, declared the ordinance invalid, and enjoined its enforcement. 128 S.W.2d 487.

The ordinance required all telegraph, telephone, electric and gas companies using the streets or other public places within the corporate limits of the City to pay, for the privilege of such occupancy, a rental equal to 4 per cent, of the gross receipts from business conducted in the City. A penalty of $100 per day was provided for the violation of the ordinance by the carrying on of any business covered thereby without the payment of such rentals, and the right was reserved by the City to refund unearned rentals at any time, and thereupon to cancel the privileges therein granted. It was the conclusion of the Court of Civil Appeals that the ordinance was inconsistent with Article 1436, R.S.1925. The portion of that article material here reads as follows : “Such corporation [meaning electric corporation] * * * shall have the right to erect its lines over and across * * * any street or alley of any incorporated city or town in this State- with the consent and under the direction of the governing body of such city or town * *

As we understand its opinion, that court arrived at the conclusion that the ordinance was invalid by this process of reasoning: The right of way or easement enjoyed by the Company was a grant from the State under Article' 1436; s'ame was a property right acquired by the Company by such grant from the State, and the City, which neither granted the right of way nor possessed proprietary interest in it, could not impose a charge in the nature of a rental for the use thereof. The' leading case announcing the principle which was applied by the Court of Civil Appeals is Galveston & Western Ry. Co. v. City of Galveston, 90 Tex. 398, 39 S.W. 96, 36 L.R.A. 33. It appears from the opinion in that case that the City of Galveston, by ordinance, undertook to 'grant to the railway company the right to construct and maintain tracks on certain streets of the City. The ordinance also provided that such privilege should be forfeited, if the company should fail to extend its tracks across Galveston Bay within five years. That ordinance was assented to and accepted by the company. It failed to extend its tracks across the bay within the time provided, and suit was brought by the City to forfeit its right under the ordinance on the ground of such failure. At that time there’were in effect Articles 4426 and 4438, R.S.1895. The former granted the railroad companies the right to construct their lines across, along or upon any street, and the latter provided that such companies were not authorized to do so without the assent of the city or town. The Court, speaking through Justice Brown, held that, since the superior authority over the streets of cities rested with the Legislature, it could have granted the company the right to occupy same without imposing any condition upon the grant; that it had seen fit to impose upon such grant the condition precedent that the consent of the City be first obtained; and that when that' condition was satisfied the right became vested and could not be divested by the City for breach of a condition subsequent.

Later the same Justice wrote in the case of Palestine Water & Power Co. v. City of Palestine, 91 Tex. 540, 44 S.W. 814, 817, 40 L.R.A. 203. In that case the City granted a franchise to the Company to operate a water works in the City, with the right to lay mains and pipes in and along public streets and alleys and other public grounds of the City. ■ It was provided, however, that, if the Company should fail for a designated period of time to furnish a sufficient supply of wholesome water, its rights should be forfeited. The Company failed to furnish sufficient water, and the City brought suit to cancel the franchise. The Company contended that under Article 705, R.S.1895, then in effect, its-right to occupy and use the streets of the City was derived from the State by direct grant from the Legislature, and could not, therefore, be annulled by the City. It relied upon the Galveston case, supra. Article 705, R.S. 1895, provided that “ * * * such corporation shall have the power to lay pipes, mains and conductors for conducting gas or water through the streets, alleys, lanes and squares in such city, town or village, with the consent of the municipal authorities thereof, and under such regulations as they may prescribe.”

It was held that such a marked difference existed between the purposes of a railroad company and those of a company organized to distribute water locally as to make it proper and necessary to place different constructions upon the two articles of the statutes. We quote from that opinion as follows: “The public policy of the state in the case -of railroad companies would necessarily preserve the road as against the action of any local authority, while, on the other hand, the same public policy might well commit the corporation created alone for'local purposes to exclusive local government, as was done in this class -of cases. We conclude that the right to occupy the streets of Palestine was derived from the consent of the <jity, which, for sufficient - cause, might be revoked upon application of the city.”

Another case, the opinion in which was written by Justice Brown is the case of City of Brownwood et al. v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163. In that case the City denied to a telegraph and telephone company the right to pass through the city with a long distance telephone line and to erect such poles on the streets as were necessary for that purpose. The applicable statutes were Articles 1231 and 1235, R.S.1911. The former granted to telegraph companies the right to construct and maintain their lines and set their poles and other fixtures along, upon and across any street, and the latter granted cities broad powers to regulate and control the manner in which such companies might make use of the streets.

Telephone companies were not named in the articles, but it was held that they came under them the same as telegraph companies. After so holding the Court construed the articles as granting to such companies the absolute right to pass through cities and over and upon the streets thereof, and, accordingly held that the city had no authority to deny it. The opinion expressly limited its application to long distance lines, and expressly did not pass on the rights of a company operating a local telephone system within a city or town. Considering together the Galveston case, the Palestine case and the Brownwood case, it appears that the construction of the various statutes involved was made to turn upon the fact of whether the business of the utility was interurban or intraurban.

Such was the status of the decisions when the Court of Civil Appeals at Dallas came to consider the case of Southwestern Tel. & Tel. Co. v. City of Dallas, 174 S.W. 636. That case upheld an ordinance of the City of Dallas similar to the one .here involved; the principal difference between the two ordinances being that the Dallas ordinance fixed the amount of the rental charge at $2 per pole while the one under review fixed it at 4 per cent; of the gross receipts. The Court took notice of the decision in the Brownwood case, which expressly left open the question before it for decision. The City’s charter granted to the City substantially the same authority over its streets and other public places as that granted to'the City in this case under Article 1016, R.S.1925. The effect of the opinion in that case, when considered in the light of the foregoing cases, was to determine that a telephone company, in conducting a local system in a given city or town, must procure its authority to use the streets and other public places of the City from the City and be subject to regulation and control by such City; that statutes granting rights of way over streets and other public places of the City must be limited in their application to the business of furnishing long distance service. Writ of error was applied for in that case by the telephone company and was by this Court refused.

We have inspected the application and find that the argument was forcefully and ably pressed upon this Court that the case should be ruled by the decision in the Galveston case. By overruling that application this Court approved the holding that cities have the right to fix charges in the nature of rentals for the use of their streets and other public places by telephone companies conducting a local business.

For equal, if not greater, reason the ruling should be held to apply to electric companies of the nature of the company in the instant case. It is more certainly engaged in intracity business, like the water company in the Palestine case than is a telephone company. It is our conclusion that the authorities above considered clearly sustain the right of cities to fix a rental charge for the use of its streets and other public places by electric corporations which carry on a local business.

We shall not undertake to harmonize the foregoing with one of the holdings made in the case of Fort Worth Gas Co. v. Latex Oil & Gas Co., Tex.Civ.App., 299 S.W. 705, writ refused. We experience no difficulty in arriving at the conclusion that that case was correctly decided, in the sense that a correct conclusion was announced therein, but we question whether that portion of the opinion which discusses the power of the city can be harmonized with the principle established by the above cases. It now appears that the writ should have been dismissed rather than refused in that case. By refusing a writ in that case, the Court certainly did not intend to overrule both the Palestine case and the Dallas case.

We have also concluded that the ordinance is not invalid merely because it provides for measuring the amount of the rental charge by a percentage (four per cent) of the gross receipts of the business transacted by the Company in the City. In the case of Municipal Gas Co. v. City of Wichita Falls, Tex.Civ.App., 88 S.W.2d 608, an ordinance was upheld which measured the charge by 5 per cent, of the gross receipts. The case was remanded on the issue of the reasonableness of the rental charge. We have inspected the record in this Court and find that it was the City and not the gas company which made application for writ of error. By that application the City urged that, having the authority to assess such charge, the question of its reasonableness vel non was not for the courts. By dismissing that application this Court held that it was a proper question for decision by the courts. It is thus established that the material inquiry is not the method used to measure the rental charge, but rather the reasonableness of such charge. It cannot be held, as a matter of law, that the charge in this case is so unreasonable as to render the .ordinance .invalid.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1 v. AUSTIN MILL & GRAIN CO.
    No. 7617.
    Supreme Court of Texas.
    March 20, 1940.
    McCartney, McCartney & Johnson and C. L. McCartney, all of Brownwood, and Greenwood, Moody & Robertson and Thos. B. Greenwood, all of Austin, for plaintiff in error.
    Collins, Jackson & Snodgrass, of San Angelo, and McGillivray Muse, of Dallas, for defendant in error. '
   GERMAN, Commissioner.

Brown County Water Improvement District Number One, herein called plaintiff, was organized in 1926, under what is now Chapter 2, art. 7622 et seq., Title 128 of the Revised Statutes of 1925. It was created under authority of Section 59, Article 16, of the Constitution, Vernon’s Ann.St., and is subject to all of its provisions.

After its organization it issued bonds, by authority of an election for that purpose, in the sum of $2,500,000, for the purpose of constructing a dam on Pecan Bayou, and the erection of other necessqry facilities with which to irrigate the land lying below the dam. For the purpose of securing a reservoir site covering more than 7,000 acres of land, and to construct the dam, $1,340,000 of the bonds were sold; and this portion of the project was completed in 1932. The funds derived from these bonds were exhausted. Because of the general depression prevailing at the time the remainder of the bonds could not be sold, and the district was unable to obtain funds for the completion of its undertaking, and had no funds with which to pay maintenance expenses of the district and the improvements. In 1932, without submitting the matter to a vote of the people, the district began to levy and collect a maintenance tax, assessed against the property of owners in the district, ranging from 3‡ to 20‡ per annum on the $100 valuation of property within the district.

The present suit was instituted by plaintiff against Austin Mill & Grain Company, herein designated defendant, to recover taxes alleged to be due the district for the years 1934, 1935 and 1937, aggregating, with penalties and interest, the sum of $2,748.06. The taxes sued for represent three separate items levied by the district for the following purposes: (a) To pay interest and create a sinking fund for the payment of the bonds; (b) to pay expenses of assessment and collecting ¡Laxes; and (c) to pay current and maintenance expenses of the district and improvements. The first two items are not contested. As to the third item defendant denies liability on the ground that such taxes could not lawfully be levied and collected, because not authorized by vote of the qualified voters of the district.

It is ágreed that the obligations for the payment of which these taxes were levied were lawfully and regularly incurred from year to year by the board of directors of the district, for its use and benefit, for the respective years for which said taxes -were levied and assessed, or attempted to be levied and assessed, and that said debts and obligations were reasonable in amount for the several purposes for which same were incurred, either for labor and services performed, or for materials furnished to the district.

It is further agreed that no election was ever called or held submitting to the voters of the district the proposition as to whether the district should be authorized to levy and collect any taxes other than those for the interest and sinking fund on the bonds.

The Court of Civil Appeals held that thjs maintenance taxes in question were invalid, because not authorized by vote of the property taxpaying voters of the district. 128 S.W.2d 829. Writ of error was granted because of the constitutional question involved. Having reached the conclusion that the holding of the Court of Civil Appeals is correct, there is but little which can be added to its opinion.

For purposes of this discussion it is assumed that statutory authority existed for levying the maintenance taxes. Notwithstanding this, however, if a vote of the taxpaying voters was an essential prerequisite, the taxes were invalid. We are of the opinion that the matter is determined by a construction of the language of Subdivision (c) of Section 59, of Article 16, of the Constitution, and that the construction of this particular section, as regards the question here involved, has not been directly passed upon by this court.

As the controversy between the parties is waged largely around Subdivision (c) of Section 59 of Article 16, we are setting out same in full. For convenience in arriving at the meaning of same we are setting it out in designated subdivisions, retaining the original punctuation:

“(a) The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment,
“(b) and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as may be prescribed by law
“(c) and shall also, authorize the levy ■ and collection within such districts of all such taxes, equitably distributed, as may be necessary for the -payment of . the interest and the creation of a sinking fund for the payment of such bonds;
“(d) and also for the maintenance of such districts and improvements,
“(e) and such indebtedness shall be a lien upon the property assessed for the payment thereof;
“(f) provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.”

Looking.at said constitutional provision more in detail we find that Subdivision (a) empowers the Legislature to authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof. Manifestly, the “indebtedness” which, under this provision, the Legislature may authorize, means all enforceable obligations which may be incurred, regardless of the conditions of their payment or the time in which they may be payable. In other words, “indebtedness,” as here used, has no technical or special meaning, but obviously has a broad significance as covering all debts or obligations created for improvements or maintenance.

Subdivision (b) declares that “such indebtedness” may be evidenced by bonds. Obviously, the word “indebtedness” here has the same meaning as in the preceding paragraph.

Subdivision (d), when read in the light ■of the preceding language, means that the Legislature, shall also authorize the levying and collection of such taxes as may be necessary “for the maintenance of such districts and improvements,” and this is immediately followed by the language (Subdivision e) “and such indebtedness ■shall be a lien upon the property assessed for the payment thereof.” Here again the indebtedness mentioned is manifestly the ■same mentioned in the preceding paragraphs, and necessarily means all debts or obligations incurred in connection with improvements and maintenance. The word still has no special or technical meaning.

■Then follows the provision which is the subject of debate. It is necessary to repeat same with emphasis upon the controlling words: “Provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.”

The words “any indebtedness” are emphatic and inclusive. We are called upon, however, to say that the word “indebtedness” in this provision does not have the same broad meaning or significance which it undoubtedly has in the preceding subdivisions where it is used. The contention is that as here used it has the restricted meaning given to the word “debts” in Section 5, Article 11, of the Constitution pertaining to cities and towns. See McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322. We perceive no reason for giving this word this special meaning, when its true meaning is clearly apparent from its own context. It is a general rule that words are usually given a broad and liberal meaning, if necessary, in order to effectuate the purpose of the constitutional provision of which they are • a part. It may be safely said that one of the dominant purposes of the constitutional provision in question was to prevent the burdening of property with tax liens, except with the approval of the taxpayers themselves, formally expressed in an election for that purpose. So, in light of this manifest purpose, it is plain that the “indebtedness” mentioned in this provision is exactly the same indebtedness mentioned in Subdivision (e), where it is said, “such indebtedness shall be a lien upon the property assessed for the payment thereof.”’

While the prohibition is primarily against indebtedness, yet it is appárent that if the taxes be assessed and a lien created against the property without. approval of the taxpayers, the prohibition of the Constitution will be defeated, regardless of how the money may be expended.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: SMEDLEY, Commissioner.

text:
    EDMISTON v. TEXAS & N. O. R. CO.
    No. 1807—7387.
    Commission of Appeals of Texas, Section B.
    March 27, 1940.

      Polk Shelton, Emmett Shelton, and Everett L. Looney, all of Austin, for plaintiff in error.
    Baker, Botts, Andrews & Wharton, of Houston, and Smith, Goldsmith, Adams & Bagby, of Austin, for defendant in error.
   SMEDLEY, Commissioner.

Plaintiff in error sued defendant in error, the railroad company, for damages on account of injuries suffered by his wife, who was riding as a guest in an automobile which struck, or was struck by, defendant in error’s switch engine at a crossing of the railroad track with a public street in the city of Austin.

The jury, in answer to special issues, found that employes of the railroad company, who operated the switch engine, were negligent in several particulars alleged and that each of such negligent acts was a proximate cause of the injury to Mrs. Edmiston. With respect to alleged acts of contributory negligence on the part of Mrs. Edmiston, the jury made the following findings: That Cecil Ramos, the driver of the automobile, was driving immediately before the collision at a rate of speed ip excess of twenty miles per hour; that his action in driving at that rate of speed was a proximate cause of the collision; that Mrs. Edmiston failed to make any protest or otherwise attempt to persuade Ramos to reduce the speed of the automobile; but that such failure on her part was not negligence; that the whistle of the engine was blown before it reached the crossing; that Mrs. Edmiston, by the exercise of ordinary care, could have heard the whistle; that Mrs. Edmiston failed to call the attention of Ramos to the whistle ; but that such failure on her part was not negligence; that the rear headlight on the switch engine was burning as the engine, which was backing, approached the place of collision; that Mrs. Edmiston, by the exercise of ordinary care, could have seen the burning headlight; that Mrs. Edmiston failed'to call the attention of Ramos to the burning -headlight; but that her failure to do so was not negligence; that Mrs. Ed-miston, by the exercise of ordinary ’ care, could have seen the switch engine as it approached the crossing in time to have warned Ramos; that Mrs. Edmiston failed to call to the attention of. Ramos the fact that the engine was approaching the crossing; but that such failure on the part of Mrs. Edmiston was not negligence; that Mrs. Edmiston failed to listen, watch and look out for trains and engines as the automobile approached the railroad track; but that such failure on her part was not negligence.

Plaintiff in error filed a motion for judgment on the verdict. Defendant in error, the railroad company, filed no motion for judgment. It did not by motion ask for the rendition of judgment in its favor either on the verdict or notwithstanding the verdict, and it filed no motion requesting the court in the rendition of judgment to disregard any of the special issue findings as not supported by evidence. The trial court overruled plaintiff in error’s motion for judgment and rendered judgment that plaintiff in error take nothing by his suit, the judgment containing the recital of the court’s opinion that the defendant in error was entitled to a judgment upon the verdict.

The Court of Civil Appeals affirmed the trial court’s judgment, holding that the evidence showed that Mrs. Edmiston was guilty of contributory negligence as a matter of law, and that no issue other than that of discovered peril should have been submitted to the jury, and that, the jury having determined the issue of discovered peril in favor of the railroad company, the question whether the trial court could have rendered judgment non obstante veredicto without written motion by the railroad company and notice and hearing thereon, as required by amended article 2211 of the Revised Civil Statutes, Vernon’s Ann.Civ. St. art. 2211, “[was] not material.” 111 S.W.2d 848, 849.

As we understand the ruling of the Court of Civil Appeals with respect to amended article 2211, it is that, although the jury found by its answers to special issues that Mrs. Edmiston was not guilty of contributory negligence as alleged by the railroad company, the trial court, without the filing of a motion in accordance with the requirements of amended article 2211, had the authority to disregard such findings of the jury and to render judgment that plaintiff in error take nothing — this for the reason that the evidence, in the opinion of the' Court of Civil Appeals, showed as a nfatter of law that Mrs. Edmiston was guilty of contributory negligence.

This ruling, in our opinion, is contrary to the intention and meaning of the provisions which were added to article 2211 by amendment in 1931 and which are as follows: “Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence.” Chapter 77, Acts Regular Session, 42nd Legislature.

As is pointed out by Judge German in the opinion in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971, prior to the amendment of article 2211, “it was definitely settled that by virtue of article 2209 of the Revised Statutes of 1925, a trial court was without authority to set aside a jury’s finding to an issue raised by the pleadings, even though such finding was against the undisputed proof or was without evidence to support it.” See Waller v. Liles, 96 Tex. 21 70 S.W. 17; Massie v. Hutcheson, Tex.Com.App., 270 S.W. 544. Quoting further from the opinion in Hines v. Parks, supra: “The amendment of 1931 was intended to obviate the apparent harshness of this rule, and to permit the disregarding of a special issue finding which had no support in the evidence. It is obvious, however, that even now in a case where there is a finding of a jury to a special issue which is raised by the pleading, the only authority which the court has to disregard such finding is that given by the statute; and, of course, as the right is conferred by the statute, it can be exercised only in the manner and under the circumstances prescribed by the statute.”

The issues submitted to the jury, as to acts of contributory negligence on the part of Mrs. Edmiston, were issues raised by the pleadings. They were issues which were under the pleadings material to the decision of the case. If there was no evidence sufficient to warrant the submission of these issues to the jury or if the uncon-troverted evidence showed as a matter of law that Mrs. Edmiston was guilty of contributory negligence, the issues should not have been submitted to the jury, but after they were submitted and answered the trial court was without authority, when rendering judgment, to disregard the jury’s answers to the issues, in the absence of motion, notice and hearing as prescribed by amended article 2211.

A ruling that compliance with this statute is unnecessary when the answers to special issues are contrary to the undisputed evidence would nullify the statute, render it meaningless. Such ruling would be to say that, while the statute authorizes the court, upon the filing of a proper motion, to disregard a special issue jury finding that has no support in the evidence, the court may nevertheless, without the filing of any motion at all, disregard a special issue jury finding that has no support in the evidence, or, what amounts to the same thing, a special issue jury finding that is contrary to what the evidence shows as-a matter of law.

The question here presented is different from that decided in Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340, and like decisions, in which the issues submitted to the jury and answered were wholly immaterial under the pleadings and could afford no basis for judgment, however answered. Here the issues as to the alleged acts of contributory negligence on the part of Mrs. Edmiston were material issues made by the pleadings and the answers to the issues, if supported by the evidence, could become the basis of a judgment. This being true, and no motion having been filed to disregard the special issue findings which exonerated Mrs. Ed-miston of contributory negligence, the trial court’s authority extended no further than to render judgment in conformity with the jury findings or to set the findings aside and grant a new trial, even though the court may have concluded that the findings were without evidence to support them. Massie v. Hutcheson, Tex.Com.App., 270 S.W. 544, 545.

Defendant in error contends that the trial court was authorized to render judgment in its favor on the verdict, because the jury found that Mrs. Edmiston, by the exercise of ordinary care, could have heard the whistle, could have seen the rear headlight and could have seen the engine as it approached the crossing. The position taken is that these are findings of contributory negligence on the part of Mrs. Edmiston sufficient to defeat recovery for her injuries. It is apparent, however, from examination of all of the issues submitted by the court to the jury, that the several issues by which the jury was asked to find whether Mrs. Edmiston, by the exercise of ordinary care, could have heard the whistle, could have seen the headlight and could have seen the engine approaching the crossing, were preliminary to the issues by which, following each of said preliminary issues, the jury was asked to find whether Mrs. Ed-miston failed to call the attention of Ramos to the whistle, to the light, and to the approaching engine and whether her failure to do so in each instance was negligence. The- jury was not asked to find whether Mrs.-Edmiston’s failure to hear the whistle or to see the headlight or to see the engine was negligence or whether any of such omissions was a proximate cause of her injuries. Issues expressly submitting to the jury questions of negligence on the part of Mrs. Edmiston and whether her acts of negligence were proximate causes of her injuries had reference only to her failure to warn Ramos. The jury answered, in response to each of said issues, that Mrs. Edmiston was not negligent, and, in accordance with the court’s instructions, did not answer the issues relating to proximate cause. We think it clearly appears from the manner in which the issues were submitted to the jury and from the answers to the issues relating to the conduct of Mrs. Edmiston that the jury found, and intended to find, that, while Mrs. Edmiston could have heard the bell, could have seen the headlight and could have seen the approaching engine in time to warn Ramos, her failure to do so and consequent failure to warn him were not negligence.

It is our opinion, after carefully reading the statement of facts, that the Court of Civil Appeals erred in concluding that the undisputed evidence shows that Mrs. Ed-miston was guilty of contributory negligence as a matter of law in failing to listen, watch and look out for the switch engine, in failing to call the attention of the driver to the approaching switch engine and in failing to look out for the engine when, by the exercise of ordinary care, she could have seen the burning headlight.

According to Mrs. Edmiston’s testimony, she did not see the switch engine until it was in the middle of the street and the automobile was within a few feet of the crossing, when she immediately cried out: “Lookout — there is the engine.” The fault attributed to her is failure to listen and keep a lookout.

The rules with respect ■ to the duty of one riding as a guest in an automobile to keep a lookout have been stated and applied in several cases, some of which are: Davis v. Pettitt Tex.Com.App., 258 S.W. 1046; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, application for writ of error refused. The substance of the rules announced by these decisions is briefly stated as follows:. While the duty of the guest is measured by the same standard as that of the driver, which is that he is bound to use reasonable care, the care which a person of ordinary prudence would use under like circumstances, the conduct required by the standard is generally very different. The driver is in charge of the automobile and the law imposes upon him the duty when driving on a public highway or street to use care constantly in keeping a lookout. Southland-Greyhound Lines, Inc., v. Richardson, 126 Tex. 118, 124, 86 S.W.2d 731. The guest, however, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. Ordinarily he may reasonably and lawfully rely on the driver to keep watch.

Associate Justice Funderburk, writing the opinion in International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, 764, in which application for writ of error was refused, quoted with approval the following paragraph from the Restatement of the Law of Torts (vol. 2, pp. 1282, 1283, section 495), which, in our opinion, is a correct declaration of the rule established by the decisions in this state as to the amount of care required of a guest in an automobile: “Save in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout of to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a book without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent. However, if the plaintiff knows that at a particular point there will be a peculiar danger, which he has no reason to believe that the driver if unaided will perceive, the plaintiff may be guilty of negligence if he does not keep himself in a position to call the danger to the attention of the driver. Save under such exceptional circumstances, a plaintiff is entitled to trust the vigilance and skill of his driver unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless.” “So too, the plaintiff is not required to keep his eyes constantly on the speedometer to see whether the driver is exceeding the legal speed limit. He is required to call the attention of the driver to his excessive speed only when the speed is so great that a reasonable man would realize its excessive character.”

We find no evidence in the record in this case conclusively proving the existence of exceptional circumstances which would impose upon Mrs. Edmiston the duty to keep the lookout that should have been kept by the driver or which should have caused her to know or believe that she ought not to trust the vigilance of the driver.

Mrs. Edmiston testified that in her opinion the automobile was being driven immediately before the collision at about twenty-five miles an hour. Disinterested witnesses fixed the speed of the automobile at thirty or thirty-five miles per hour. It is not conclusively shown that Mrs. Edmiston knew that the street on which the automobile was being driven was crossed by the railroad tracks, or that there was any physical condition which rendered the street extra hazardous, or that she knew of any peculiar danger that the driver, if unwarned, would fail to perceive. There is no evidence, except the speed somewhat in excess of the lawful rate, that Ramos was driving recklessly, and no evidence conclusively showing that Mrs. Edmiston knew or should have known, either from the manner in which the c-ar was being driven or from past experience, that Ramos was likely to be inattentive or careless in keeping a lookout.

The evidence does not bring the instant case within the purview of the holdings of Texas Mexican R. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18, and Murphy v. Milheiser, Tex.Civ.App., 30 S.W.2d 586. In those cases, as is explained by Judge Taylor in Schumacher v. Shooter, 132 Tex. 560, 564, 565, 124 S.W.2d 857, there existed exceptional circumstances, not present here, on account of which the plaintiff was called upon to exercise care for his own safety.

The evidence set out in the opinion of the Court of Civil Appeals in the instant case as the basis for its conclusion that Mrs. Edmiston was guilty of contributory negligence consists of uncon-tradicted proof of failure on her part to keep a lookout and to see the headlight and the approaching engine, when the view of. the-street, the crossing and the engine was open and unobstructed for more than 800 feet. The conclusion was drawn by that court that she was negligent as a matter of law because, she could have seen the light and could have seen the engine, had she looked. The fault in the conclusion is that it assumes an essential fact not conclusively established by' the evidence, that is, that the circumstances were such that Mrs. Ed-miston should not have relied upon the driver to keep a lookout. It is our opinion that the evidence, viewed most favorably to the defendant in error, was sufficient only to raise an issue or issues of fact as to whether Mrs. Edmiston was negligent.

The judgments of the district court and of the Court of Civil Appeals are reversed and the cause is remanded to the district court.

Opinion adopted by the Supreme Court.


text:
    COMMERCE TRUST CO. et al. v. RAMP et al.
    No. 2297—7459.
    Commission of Appeals of Texas, Section A.
    April 3, 1940.

      Hoover, Hoover & Cussen, of Canadian, and A. V. Knight, of San Antonio, for Commerce Trust Co.
    Terrell, Davis, Hall & Clemens, of San Antonio, for General American Life Ins. Co.
    Sanders & Scott and Howard F. Saunders, Jr., all of Amarillo, for Ramp.
    E. L. Klett, of Lubbock, for Cattle Loan Co.
   GERMAN, Commissioner.

This case has three separate features. The first is a controversy between General American Life Insurance Company on one side, and H. M. Ramp et al. on the other. We shall refer to this as the First Part. The second is a controversy between Commerce Trust Company et al. on the one side, and H. M. Ramp et al. on the other, and it will be referred to as the Second Part. The third is a suit between H. M. Ramp et al. v. Commerce Trust Company et al., and it will be referred to as the Third Part.

First Part.

This is a usury suit. It was instituted in the district court by H. M. Ramp and others against Commerce Farm Credit Company, JoZach Miller, George Gerlach, Walter Jones, the First National Bank of Canadian, Missouri State Life Insurance Company, General American Life Insurance Company and Commerce Trust Company. The General American Life Insurance Company is the main party here, and is plaintiff in error. For purposes of this decision it is sufficient to say that the loan forming the basis of the suit was dated January 29, 1921. On that date H. M. Ramp, individually and as community survivor of the estate of himself and his wife, Anna Ramp, then deceased, procured from the Commerce Farm Credit Company a loan in the sum of $50,000, evidenced by one principal note or bond, payable on the 1st of February, 1931, at the office of Commerce Trust Company in Kansas City, bearing interest from date until maturity at the rate of 6½ per cent, per annum, evidenced by ten interest coupons in the sum of $3,250 each thereto attached, and after maturity at the rate of 10 per cent, per annum. To secure this indebtedness, a first deed of trust lien was executed to Jo-Zach Miller, III, as trustee.

On the same day, Ramp, individually and as community survivor, executed a second deed of trust to JoZach Miller, III, as trustee, to secure the payment of four promissory notes in the sum of $3,125 each, of even date with the deed of trust, and due February 1st of each successive year, beginning with February 1, 1922, which represented 2½ per cent, additional interest on the loan for the entire period of ten years.

On March 7, 1921, the Commerce Farm Credit Company sold and assigned the principal note or bond of this loan in the sum of $50,000 to appellant Missouri State Life Insurance Company, who, on the 8th of September, 1933, after this suit was filed, assigned the same to appellant General American Life Insurance Company.

The additional interest notes were assigned to, and remained throughout the property of, Commerce Trust Company.

The Court of Civil Appeals held that this loan was usurious. 116 S.W.2d 1144. This holding was based on the ground that the additional 2½ per cent, interest on the principal of the loan was “squeezed” into four annual payments of $3,125 each, instead of being spread over the ten-year period of the loan, and this resulted in making the rate for the first four years in excess of 10 per cent, per annum. This holding of the Court of Civil Appeals is so obviously correct that it becomes unnecessary to discuss the question. In fact, as we construe the various assignments in application for writ of error, plaintiff in error does not seriously attack this holding. At least, no argument is made and no authorities cited which tend to raise a doubt as to the correctness of the holding of the Court of Civil Appeals in this respect.

The one dominant question presented here on behalf of plaintiff in error is this: Even if the loan, of January 29, 1921, were usurious, nevertheless the same was purged of usury by a new contract between the parties of February 1, 1925. Just what really took place on that date is reflected by a statement in the record about which there is no dispute at all. It is as follows:

“The loan of $50,000 was drawn at a coupon rate of 6 1/2% per annum. The difference to make the rate 9% (or 2 1/2% per annum) for ten years, total $12,500.00, was represented by four second lien notes of $3,125.00 each payable:
“$3,125.00 February 1, 1922.
“ 3,125.00 February 1, 1923.
“ 3,125.00 February 1, 1924.
“ 3,125.00 February 1, 1925.
“During the years 1922 to 1925 the interest at 6 1/2% on the first mortgage was paid us on the following dates:
“$3,250.00 due February 1, 1922, paid December 13, 1922.
“ 3,250.00 due February 1, 1923, paid April 11, 1923.
“ 3,250.00 due February 1, 1924, paid March 21, 1924.
“ 3,250.00 due February 1, 1925, paid February 5, 1925.
“No part of said four commission notes having been paid.
“Early in 1925, these commission notes with past-due interest thereon, figured at a 6% rate, totaling $13,250.00 were redrawn under a compromise arrangement with Mr. Ramp to be payable, as follows:
“$5,750.00 due February 1, 1926, with interest at 6% from date,
“ 1,250.00 due February 1, 1926, without interest.
“ 1,250.00 due February 1, 1927, without interest.
“ 1,250.00 due February 1, 1928, without interest.
“ 1,250.00 due February 1, 1929, without interest.
“ 1,250.00 due February 1, 1930, without interest.
“ 1,250.00 due February 1, 1931, without interest.
“These notes bore interest after maturity at 10%.”

The instrument evidencing this new arrangement is designated as “second deed of trust.” After formal parts, it recites the conveyance to the trustee of certain lands in Hemphill County which are described. It is recited that the conveyance is in trust to secure the Commerce Farm Credit Company in payment of seven notes described exactly as in the statement above quoted. The instrument then contains the following recital: “Said notes are given as a part of the agreed interest on the principal debt secured by the first deed of trust above mentioned, and the beneficiary herein is entitled to all the rights of subrogation agreed and provided for in said first deed of trust.’.’

The concluding portion of the instrument is as follows: “This deed of trust is executed to secure my indebtedness to the Commerce Farm Credit Co., in the amount shown herein, which is admitted to be due to said Commerce Farm Credit Company, as a result of a complete settlement and adjustment of all matters between us in connection with the lean previously made me and secured by liens on the property above described. All claim which I might have had against said company by reason of asserted and denied usurious charges has been settled and is hereby released fully. The lien hereby granted is to take up and carry forward the lien of a previous deed of trust, dated January 29th, 1921, and recorded in Volume 11, page 618 of the deed of trust records of Hemphill County, Texas, and I admit the lien of that deed of trust to be valid: the purpose of this deed of trust and the notes hereby secured being to extend the time for payment of the unpaid indebtedness as described in that deed of trust and carry forward the lien. The lien of the first deed of trust hereinabove mentioned is recognized as valid and subsisting and the debt thereby secured is recognized as valid and unpaid (except as to such principal or interest payments as may have been made) and the priority of the lien securing that debt over the lien of this deed of trust is admitted.”

It is not even pretended that there was any “complete settlement and adjustment of all matters between us (the parties) in connection with the loan previously made” other than what was accomplished by this second deed of trust itself.

Before discussing the effect of this agreement, it becomes appropriate to make a few general remarks concerning the matter of purging a contract of usury. Without an intention of adopting a rule applicable in all cases and under all circumstances, we think we may adopt, as applicable to this discussion, the rule announced in 66 Corpus Juris, section 219, pages 256 and 257, and supported in principle by our own decisions, as well as the decisions of nearly all jurisdictions. It is as follows: “The general principle determining when an indebtedness infected with usury is to be deemed disinfected may be stated as follows : If the tainted obligation is with the full knowledge and consent of the borrower, finally canceled or abandoned, and a new obligation, containing no part of the usury, is executed in legal form, and supported solely by the moral obligation resting upon the borrower to pay the money • actually received with legal interest thereon, such new obligation is valid and enforceable. But so long as the original, usurious obligation continues to exist,, based upon a consideration in which usury inheres, the taint of usury persists, whatever be the form which the subsequent, dealings of the parties may cause it to assume, and even though new parties may-have been introduced, or the borrower allowed to assume a different relation to the security affected with usury.”

That a removal of the taint of' usury cannot be accomplished by merely a renewal, or successive renewals, of an original usurious contract, is settled beyond, all controversy. See Wallace v. Scott & Son, Tex.Com.App., 127 S.W.2d 447, and authorities mentioned; also 66 Corpus-Juris, section 222, pages 258 and 259. The-general rule, expressed affirmatively, is-stated again in 66 Corpus Juris, section 223,. page 259, as follows: “A note may be purged of its usury by compromise and-settlement whereby the old obligation is abandoned and a new and valid one given instead. Hence, when a usurious obligation is settled and abandoned, and a new security taken for the debt lawfully due-with lawful interest thereon, such new security rests upon a consideration purged', of usury, and is valid.”

We may make the further general observation that in our opinion in all cases-where it has been held by our courts that an executory contract has been purged of' usury, as distinguished from release of lia- • bility for usurious interest which has been. paid, it will 'be found that there was a new contractual arrangement which in legal effect amounted to a novation, or the substitution of a new contract, based on a sufficient consideration, in lieu of the original usurious one.

In this instance, it is not pretended" that the original contract of January 29, 1921, was cancelled or abandoned, or a new agreement created. That contract being - usurious, its provisions for interest were-absolutely void, both as regards the principal note, as well as the second lien notes.. The transaction of February 1, 1925, merely dealt with a rearrangement of a part of. the usurious interest. What the parties did. was to take the second lien interest notes,, then past due, aggregating $12,500, add. thereto 6 per cent, interest, making a total of .$13,250, then divide this amount into-seven annual payments. The express purpose was merely to renew and'extend pay— ment of the identical interest (plus 6 per ■cent, thereon) which had originally been squeezed into four annual installments. But it is argued that this could he done on the theory that as no payments had been made on the second lien notes, and they had become due, they ceased to he interest and became a part of the principal. The fallacy is obvious. This interest being void from the beginning could never be trans-mutted into a valid principal. So, this contract being void, even as to the second lien interest notes, certainly had no effect towards purging the principal note of its unlawful interest.

But counsel for plaintiff in error strenuously argue that they are supported in their position by the case of Cotton States Building Company v. Jones, 94 Tex. 497, 62 S.W. 741. In fact that case constitutes the bed-rock of their whole contention on this phase of the case. We do not think that case, when rightfully interpreted, is authority here. The case was one involving a building and loan association, wherein a stock-buying scheme was a part of the contract, and for this reason it must be read in connection with the case of Interstate Building & Loan Association v. Goforth, 94 Tex. 259, 59 S.W. 871, which is cited. It is apparent from a careful consideration of all parts of the opinion that the court considered the second agreement, which attempted to purge the contract, amounted to a new agreement which fully supplanted the original contract. By reference to the case of Interstate Building & Loan Association v. Goforth, it will be seen that the court meant to hold that the stock-buying scheme did not prima facie contribute to making the contract usurious. The second agreement is not set out, but •it entirely removed the “contingent fund” feature of the contract, and all money paid into that fund was credited to Jones on the principal indebtedness. We have examined the second agreement, as disclosed by the record in that case, and find that it is easily susceptible of a construction that •it worked a novation. At least the court undoubtedly treated it as doing so, in light of the fact that the sole objection to same was that “it was without consideration to support it.” It is significant that in discussing the question of consideration the court some two or more times refers to a “new contract” or a “new promise.” Besides, it is further obvious that the “moral -obligation” which the court held was sufficient to support a new promise, was a moral obligation to pay the indebtedness itself. In the present instance, the second agreement related solely to interest, which was void from its inception, and we are not willing to say that there is a moral obligation to pay illegal interest. However, as the second agreement removed nothing whatever of the obnoxious elements of the original contract, but merely sought to rearrange the spurious interest, the agreement was wholly insufficient to purge the contract from the taint of usury, and it is unnecessary to discuss more fully the sufficiency of consideration for such agreement.

The Court of Civil Appeals allowed plaintiff in error certain credits, and overruled certain counter propositions of defendants in error. However, defendants in error in their application have submitted no assignments questioning these rulings. This part of the judgment of the Court of Civil Appeals is affirmed.

Second Part.

This was an action by H. M. Ramp and others against W. H. Potts and Commerce Credit Company to cancel a judgment rendered in the' District Court of Hemphill County August 30, 1924. Such judgment was in favor of First National Bank of Canadian and against George Gerlach as principal and H. M. Ramp as surety. This judgment had been assigned by the bank to Potts, who took for the use and benefit of Commerce Credit Company and same was, after institution of the suit, assigned by Potts to that company. Said Commerce Credit Company is plaintiff in error in this part of-the case.

The judgment, as above stated, was dated August 30, 1924. It contained the following provisions: “It is further ordered by the Court upon agreement of parties made in open court, that no execution ’ issue on the judgment herein until after expiration of 180 days from and after date of rendition.”

There is some evidence in the record indicating that an execution was issued on this judgment March 2, 1925. However, the jury found that the bank did not cause said execution to be placed in the hands of the Sheriff of Hemphill County. There is some complaint upon the part of plaintiff in error because of failure of the court to submit a specially requested issue upon this matter in lieu of the issue which was submitted. We do not think the question is presented in such way as to show error. However, the party who represented the bank in procuring' • the execution testified, in substance, that he handed it to the sheriff, stating that it looked like everything Ramp or Gerlach had was plastered, and the sheriff asked him what they could get hold of to levy on, to which he replied that he didn’t know; that to levy on mortgaged property would probably1 cause .Ramp to lose everything he had and not result in satisfying the judgment; that the sheriff asked what he should do with the execution, to which he replied he didn’t know but one thing to do, if the sheriff had no knowledge of any property subject to it, and that was to return it marked no property' found in Hemphill County, or nula bona. It does not appear that the execution was ever returned. We are of the opinion that this falls short of showing “issuance” of execution, as provided by Article 3773 of the Revised Statutes of 1925. Harrison v. Orr, Tex.Com.App., 296 S.W. 871.

No execution ■ having been issued within twelve' months from the rendition of the judgment, regardless Of how such twelve months may be computed, the judgment became dormant. ' In the action brought by Ramp to cancel the judgment, Potts filed cross qction op December 5, '•1934, and Commerce Trust Company filed á like cross action on February 22, 1935. It is contended that the cross action should be regarded as an action to revive the judgment, and with this we agree. The vital question presented by plaintiff in error and urged with much force is this: That although suit to revive the judgment was brought more than ten years after the date of the judgment, yet it was brought within ten years after the expiration of the 180 days fixed in the judgment from and after which execution might issue ; and therefore this was in compliance with Article 5532 of the Revised Statutes of 1925. In other words, plaintiff in error contends that the ten years within which the suit to revive' might' be instituted is to be calculated from the termination of the stay of execution and not from the date of the .judgment. , Article 5532 is as follows: “A judgment in any court of' record, where execution has not issued within twelve months after the ’ rendition of the judgment, may be revived by scire facias or an action of débt brought thereon within ten years after date of such judgment, and not after.” . ( ,

This statute does not pertain to a judgment creditor’s right of enforcement, or the matter of keeping his judgment alive. He has a simple and inexpensive remedy in that regard, and may prolong the life of the judgment indefinitely by merely ■ having executions timely issued as provided by Article 3773. Article 5532 is an additional remedy by means of which he may, at any time within ten years, revive a judgment from its dormancy, and can make it a lien against the debtor’s property for an indefinite period of time. Such statutes should be strictly construed. Thomas v. Murray, 174 Okl. 36, 49 P.2d 1080, 104 A.L.R. 209. This remedy being purely a statutory one, we think it must be measured by the statute itself, which plainly declares that the action must be brought within ten years .after date, of judgment, and not after. The courts have no authority to make an exception to this statutory rule. Russell v. McCampbell, 29 Tex. 31; Gardenhire v. King, 97 Tenn. 585, 37 S.W. 548;. Savings & Trust Co. v. Bear Valley Irrigation Co., C.C., 89 F. 32; McGinnis v. Seibert, 37 Okl. 272, 134 P. 396. This part of the judgment of the Court of Civil Appeals is affirmed:

Third Part.

This part of-the case concerns a cross, action by H. M. Ramp against Commerce Farm Credit Company and Commerce Trust Company. In his main suit, Ramp contended that he was entitled to credits upon the principal note in the sum of $50,-000, executed in 1921, and held by General American Life Insurance Company, of sums paid to third parties upon prior loans and upon second lien interest notes. The General American Life ■ Insurance Company, in its answer, alleged that it had received no part of such payments and was not chargeable with same upon its principal note. .Thereupon, on June 5, 1935, Ramp filed his cross action against Commerce Farm Credit Company and Commerce .Trust Company, praying in the -alternative that if the court should decide-that he was not entitled to credits against the American General Life Insurance-Company, he then have judgment against Commerce Farm Credit Company and Commerce Trust Company for sums paid, to them upon the theory of money had. and received. In his petition he -showed that the last payment made to anyone 'was. on February 2, 1931. The defendants in cross action, among other things, pleaded limitation.

The trial court allowed Ramp credit as against the American 'General Life Insurance Company for payments made to third parties on prior loans and on second lien interest notes. The cross action of Ramp was dismissed. Ramp filed no motion for new trial and prosecuted no appeal. He filed no cross assignments in the Court of Civil Appeals. He now claims that as he 'obtained full relief in the trial court, he was not required to do so. It will be observed that the Court of Civil Appeals reversed the judgment of the trial court in so far as it allowed credits against the General American Life Insurance Company of sums paid to third parties on prior loans and on second lien notes. In the Court of Civil Appeals Ramp filed a motion for rehearing, requesting the court to reverse and remand the cause as to his cross action against the Commerce Farm Credit Company and the Commerce Trust Company. This motion was overruled by the Court of Civil Appeals. His application for writ of error presents the sole question of his right to have this cause of action remanded, and the writ was granted because of granting the other writs.

Even conceding that plaintiff in error in this part of the case is in position to ask the relief prayed for, which we very much doubt, yet it appears beyond question that his alleged action against the Commerce Farm Credit Company and the Commerce Trust Company is barred by limitations, and no useful purpose could be conserved by remanding this part of the case.

The judgment of the Court of Civil Appeals is in all things affirmed.

Opinion adopted by the Supreme Court.