author: TIREY, Justice.

text:
    TEXAS STATE LIFE INS. CO. v. DAICHES.
    No. 2407.
    Court of Civil Appeals of Texas. Waco.
    Feb. 20, 1941.
    O. M. Street, of Dallas, for appellant.
    J, C. Jacobs, of Corsicana, for appellee.
   TIREY, Justice.

This case is before the court on motion of appellee to affirm on certificate because of the failure of appellant to file the transcript within the time provided by law. The record discloses that the trial court rendered final judgment on the 30th day of November, 1940, at which time notice of appeal was given. On December 18, 1940, appellant perfected his appeal by filing appeal bond. The time within which the transcript should have been filed in the Court of Civil Appeals expired January 29, 1941. Revised Statutes, art. 1839, as amended 1931 (Vernon’s Annotated Civil Statutes, art. 1839). Appellee filed his motion to affirm on certificate on February 5, 1941, during the term to which appellant’s appeal was returnable.

Under the provisions of R.S. art. 1841, the appellee is entitled to have the judgment of the trial court affirmed. Beaver v. Beaver, Tex.Civ.App., 57 S.W.2d 279, and authorities there cited.

The motion to affirm on certificate is granted, and the judgment of the trial court affirmed.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    LARRISON et al. v. WALKER et al.
    No. 5677.
    Court of Civil Appeals of Texas. Texarkana.
    March 4, 1941.
    Rehearing Denied March 13, 1941.

      Jones & Jones, of Marshall, and Bartlett & Patman, of Linden, for appellants.
    Vinson, Elkins, Weems & Francis and Thomas Fletcher, all of Flouston, Newland, Cornett & Whitworth, of Linden, Baker, Botts, Andrews & Wharton, of Houston, Carney & Carney, of Atlanta, and T. D. Sansing, of Linden, for appellees.
   JOHNSON, Chief Justice.

In 1865 J. N. Stone, a widower with three children, married Amanda Taylor, a widow with two children. To this union three children were born. The eight children inherited, as community property of J. N. and Amanda Stone, the land here involved, consisting of 221.44 acres (referred to in the record as 230 acres) of the Wilson Robinson Survey in Cass County. Some of the children subsequently died without issue, whereby the inheritance of Mildred Taylor, a child of Amanda Stone by her first husband, was increased to ⅛ of the whole tract, amounting to 27.68 acres undivided interest. The inheritance of Sallie Stone, a child of J. N. and Amanda Stone, was 54 acres. Sallie Stone married W. B. Walker. In 1917 W. B. and Sallie Walker acquired by deeds so reciting “the inherited interest” of the remaining heirs, except Mildred Taylor. After purchasing the undivided interests above mentioned, W. B. and Sallie Walker conveyed specific tracts off the land by deeds purporting to convey the whole title to each tract described in said deeds. The aggregate of such tracts comprised all the land, except a tract of 31 acres remaining in possession of W. B. and Sallie Walker. Said 31-acre tract is referred to as the W. B. Walker 31-acre tract. By the first of said deeds W. B. and Sallie Walker conveyed to J. S. Hall a specific tract described by metes and bounds and referred to as containing 100 acres, more or less. The second deed conveyed to H. F. Walker a tract of 40 acres, more or less, described by. metes and bounds. The third deed conveyed to said H. F. Walker two tracts described by metes and bounds and estimated to contain 21 acres, more or less, and 30 acres, more or less. In turn H. F. Walker conveyed 20 acres of the land to R. Q. Long. J. S. Hall, H. F. Walker and R. Q. Long executed separate oil and gas leases to R. W. Norton covering the tracts held by each. W. B. and Sallie Walker, joined other lessors in the execution of a unitized oil and gas lease to R. W. Norton, covering the 31 acres known as the W. B. Walker 31 acres and certain other lands of such other lessors not here involved. All the above oil and gas leases assigned to' United Production Corporation. Subsequently appellants, Hudson Larrison et al. (heirs of Mildred Taylor, deceased), executed and delivered to said United Production Corporation instruments ratifying and confirming the above-mentioned oil and gas leases “as though they had joined in execution of the original instruments as lessor,” except as to the statements contained in the original leases to the effect that the lessors therein were the sole owners of the property described, and said ratification agreements also leased for oil and gas purposes appellants’ undivided interest in all the land to said United Production Corporation upon like terms and conditions as contained in the original leases, and reserving to appellants their undivided interest in the ⅛ royalty. W. B. and Sallie Walker conveyed by mineral deeds undivided mineral interests in the 31-acre tract to divers parties. Appellants Hudson Larrison et al., - filed in the District Court of Cass County cause No. 11043, a partition suit, against all parties claiming an interest in the entire tract of 230 acres, more or less. The petition alleged the facts fully, giving a complete history of the descendents of J. N. and Amanda Stone and of the several transfers of the land from the common source, including the conveyances of the specific tracts by W. B. and Sallie Walker to J. S. Hall and to H. F. Walker. It alleged that the land was of equal and uniform value acre for acre and that the plaintiffs’ interest therein could be satisfied out of the 31-acre tract, and that plaintiffs had elected to take their interest in all the land out of the 31 acres, and prayed that it be so partitioned; and in the alternative, that plaintiffs recover their interest out of the land in the inverse order of alienation by W. B. and Sallie Walker. Trial of the case was to a jury. At the close of plaintiffs’ testimony the court instructed a verdict in favor of defendants claiming the specific tracts conveyed to J. S. Hall and H. F. Walker and entered a decree that plaintiffs take nothing as to said defendants, and thereupon proceed with the trial as between plaintiffs and the defendants claiming an interest in the 31 acres. At the close of all the evidence in the case, and while the court was preparing his charge to the jury on the issues as between plaintiffs and the defendants as to the 31-acre tract, plaintiffs moved to take a non-suit. The motion for non-suit was granted and the cause as between plaintiffs and said last-mentioned defendants was dismissed without prejudice, November 8, 1937. On the same day appellants, Hudson Larrison et al., filed the present suit, No. 11568, in the District Court of Cass County to recover the equivalent of their interest in all the 221.44 acres out of the 31-acre tract, naming as defendants W. ,B. and Sallie Walker and all parties claiming interests in the 31-acre tract. In trial of the case - it was. agreed that the 221.44 acres of land was. of uniform -value, acre for acre. The case was submitted to a jury upon special issues, in response to which they found in favor of plaintiffs with respect to their heirship and inherited interest in the land. They found against defendants on- their pleas of limitation. They further found in response to-a special issue that defendant Mrs. Sallie Walker at the time she and her- husband, W. B. Walker, executed the deeds to J. S. Hall and H. F. Walker she “intended to reserve the 31 acres as the balance of her inherited interest in the property.” Plaintiffs and defendants filed motions for judgment. The court sustained the motions of both sides in part and overruled same in part, and entered a judgment reading in part as follows:

“The court being of the opinion that plaintiffs, as ⅛ matter of law, have elected to take their undivided interest in each of the several tracts going to make up in the aggregate the tract of 223 acres, more or less, out of the Wilson Robinson Headright Survey in Cass County, Texas, and known in this record as the J. N. and Amanda Stone homeplace, and that out of the 31 acres involved in this cause, that plaintiffs by such election are limited to and not entitled to recover more than 3.85 acres, and, further, it appearing to the court that the plaintiffs have heretofore acquired an undivided 10-acre mineral interest in such 31-acre tract from North Central Texas Oil Company, Inc., William B. Weiner, Jacques L. Weiner, and Marion P. Weiner, as plead in Second Amended Original Petition, but that such 10-acre mineral interest should not be credited as plead by plaintiffs in such petition against the minerals on, in and under the 3.85 acre recovery herein awarded plaintiffs in such 31-acre tract but that such undivided 10-acre mineral interest should be held by plaintiffs under such acquisition in addition to the 3.85acres in fee awarded plaintiffs herein, and, it further appearing to the court that there is more than sufficient mineral interest in such 31-acre tract at this time remaining in the defendants, W. B. Walker .and wife, Sallie Walker, to protect the recovery of 3.85 acres herein awarded to plaintiffs without in any wise disturbing the mineral interest owned in such 31-acre tract by the defendants, Max Rude, M. Rude, Harry Greenburg, Phillip Blatt, Sandrock Royalty Company and A. J. Mc-Cook, so that the motion of such defendants for judgment should be sustained and that the motion of plaintiffs for judgment should be sustained as to the interest of 3.85acres and that the motion of W. B. Walker and wife, Sallie Walker, for judgment should be overruled insofar as necessary to permit a recovery by plaintiffs of 3.85acres, and sustained otherwise; it is accordin'gly ordered, adjudged and decreed :
' “Paragraph I. That plaintiffs * * * recover of defendants W. B. Walker and wife, Sallie Walker, an undivided interest of 3.85 acres in and to * * * the 31-acres more or less.
“Paragraph II. That plaintiffs take nothing by reason of' their suit against the defendants Max Rude, M. Rude, Harry Greenburg, Phillip Blatt, Sandrock Royalty Company, and A. J. McCook. * * *
“Paragraph III. Except as decreed in paragraph I hereof, that plaintiffs * ⅝ * take nothing against defendant W. B. Walker and wife, Sallie Walker * * *.
“Paragraph IV. That the acquisition by plaintiffs of an undivided 10-acre interest in the oil, gas and other minerals on, in and under the above described (31 acres) from North Central Texas Oil Company, Inc., Wm. B. Weiner, Jacques L. Weiner, and Marion P. Weiner, be and the same is hereby ratified and confirmed in plaintiffs, to be held by them in addition to the interest awarded them by the decree in paragraph I hereof.
“Paragraph V. That the recoveries awarded plaintiffs * * * in paragraphs I and IV of this judgment shall not be in any manner affected by the decrees contained in paragraphs II and III of this judgment.”

Expressed in other words, the judgment awards recovery by the several parties of undivided interests in the 31 acres as follows : To plaintiffs Hudson Larrison et al., 3.85acres surface and minerals, and the 10-acre mineral interest received in settlement with said Weiner brothers and North Central Texas Oil Company, Inc. To defendants W. B. and Sallie Walker 26.15 acres surface and 7.15 acres minerals. To the remaining defendants, grantees of W. B. and Sallie Walker, 10 mineral acres. The mineral acres referred to being the ⅛ mineral interest (royalty) subject to the oil and gas leases.

From an order overruling their motion for new trial, plaintiffs have perfected their appeal and assigned errors to the action of the trial court in rendering judgment as he did and in not rendering judgment in favor of plaintiffs for an undivided 27.68-acre interest in the surface and minerals in the 31-acre tract. It appears from an examination of the record that appellants’ assignments of error are well grounded and show that the trial court erred in rendering the judgment as above set out and in not rendering judgment for appellants for an undivided 27.68-acre interest in the surface and minerals in the 31-acre tract, subject to the existing oil and gas lease covering same.

Appellees Sandrock Royalty Company and others (defendants claiming mineral interests in the 31-acfe tract under W. B. and Sallie Walker) allege that the judgment should be affirmed for reasons set out in four counter propositions contained in their brief. Appellees W. B. and Sallie Walker adopt said four counter propositions, and further assert that the judgment should be reversed and judgment here rendered that plaintiffs take nothing by reason of their suit, for the reasons assigned in the said four counter propositions, and for a fifth reason contained in their brief. We shall discuss the'alleged reasons for affirmance contained in appellees’ counter propositions.

By their fourth counter proposition ap-pellees contend that the evidence is insufficient to support the findings of the jury to the effect that appellants are the heirs of Mildred Taylor, a daughter of Amanda Taylor Stone, wife of J. N. Stone. An examination of the record shows that the evidence is amply sufficient to support said findings of the jury.

By their first counter proposition appellees assert: “The act of plaintiffs in executing oil, gas and mineral leases to United Production Corporation on January 14, 1936, thereby leasing their undivided interests separately in each tract, and which tracts in said three instruments make up. the entire 230 acres, constituted by plaintiffs an election to disaffirm the conveyances out of W. B. Walker and wife to third persons, and to assert their claim to recover their undivided interest in all of the land so that they were thereby precluded from undertaking to recover all of their claimed interest out of the 31 acre tract and in no event could recover more than their proportionate undivided interest out of such 31 acre tract* * * The contention presented under the above counter proposition is, in substance, that after execution of the deeds by W. B. and Sallie Walker conveying the specific tracts to J. S. Hall and H. F. Walker, the land being of uniform value, appellants were then required to elect between two valid available and inconsistent rights or remedies, namely: That appellants could elect to affirm and ratify said deeds and thereupon recover their interest in all the land out of the 31 acres remaining in the possession of W. B. and Sallie Walker; or appellants could elect to disaffirm and avoid said deeds and thereupon recover their interest out of each of the specific tracts comprising the 221.44 acres; and that the act of appellants in executing the instruments to United Production Corporation wherein appellants ratified and confirmed the oil and gas leases executed by • the respective holders of the specific tracts, and in the same instruments leased to said United Production Corporation their undivided interest in each of the tracts, constituted as a matter of law an election to disaffirm and avoid said deeds and an assertion of appellants’ right to recover their inherited interest out of each tract separately; by reason of which appellants were estopped under the doctrine of -election of rights and remedies from recovering their undivided interests in the surface and unsevered ⅛ mineral (royalty) interest in all the land out of the 31 acres. In support of their contention appellees cite Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290; Simpson-Fell Oil Co. v. Stanolind Oil & Gas Co., Tex.Sup., 125 S.W.2d 263, motion for rehearing granted and cause reversed in per curiam opinion Jan. 22, 1941, Tex.Sup., 146 S.W.2d 723, not yet reported [in State reports]; Harrison Oil Co. v. Sherman, Tex.Civ.App., 66 S.W.2d 701, writ refused, McGee v. Stark, Tex.Civ.App., 127 S.W.2d 589, writ dismissed, correct judgment, and authorities referred to .in those cases. The above-m'entioned authorities fully discuss the doctrine of equitable partition applicable to the facts here presented, but we are unable to agree that they support appellees’ contention. The doctrine of equitable partition does not proceed upon the theory of estoppel by election of rights or remedies on the part of the non-joining cotenants. In Thomas v. Southwestern Settlement & Development Co., supra [132 Tex. 413, 123 S.W.2d 296], it is said: “* * * It clearly appears from the authorities hereinafter discussed that the doctrine [of equitable partition] does not involve the creation or the enforcement of fixed definite legal rights. Such legal rights, except as between the parties to the deed, do not arise from the execution by a cotenant of a deed purporting to convey a specific part of the land or from the execution of such deed and the nonjoining cotenant’s election not ■to avoid it. On the contrary, the doctrine is an equitable doctrine, which concerns itself primarily in protecting the ven-dee in the part of the land conveyed to him, when and to the extent that this can he done without prejudice to the cotenants of the whole tract, and which in the attainment of such primary object undertakes fairly to adjust the equities of all of the interested parties.” (Italics ours).

Included in the authorities discussed in the last above-mentioned case, is Lasater v. Ramirez, Tex.Com.App., 212 S.W. 935, 936, and the following quotation therefrom : “The right of a purchaser from one tenant in common to the specific tract conveyed to him does not depend, and is not based upon, the nonjoining tenants’ assent to, acquiescence in, or recognition of, the sale; nor is it created through estoppel. The right exists independent of any act or conduct on the part of the nonjoining tenants, and is conditioned solely upon the question whether its enforcement would prejudice or injuriously affect the other owners.”

A careful reading of Thomas v. Southwestern Settlement & Development Co., supra, and Simpson-Fell Oil Co. v. Stanolind Oil & Gas Co., supra, will support the following conclusions. The deeds of a tenant in common to specific parcels of the land are not absolutely void. They are always good as against the grantor. Such deeds do not convey or destroy any of the title of the nonjoining cotenants to their undivided interest to the lands described in the deeds. The non joining cotenants may avoid such deeds, if and to the extent only they are injured by such deeds. Though one cotenant has no power to divest the title of other cotenants b.y selling specific parts of the common property, yet under the well-settled doctrine of equitable partition the court in adjusting the equities of all the interested parties will protect such purchasers by setting aside to them the particular tracts purchased, if it can be done without injury to the other owners, where, as here, the acreage of the common property is of equal and uniform value; and will set aside to the non joining coten-ants the equivalent of their interest in all the land out of the unsold tract if it is sufficient to satisfy same; and if the unsold tract is not sufficient to fully satisfy the interest of the non-joining cotenants, then the remainder of their interest will be satisfied out of that sold, in the inverse order of the execution Of such deeds. Applying such rule to the facts here presented, after the sales of specific tracts by W. B. and Sallie Walker to J. S. Hall and H. F. Walker, appellants’ undivided interest in the surface and unsold minerals (royalty) would be set aside to them out of the 31 acres.

One of the principles of estoppel by election of rights or remedies is that there must have been more than one enforceable right or remedy from which to choose. Poe v. Continental Oil & Cotton Co., Tex.Com.App., 231 S.W. 717; 15 T.J. 826, § 6. Should it be assumed that the acts of appellants, in executing the instruments ratifying and confirming the oil and gas leases executed by the other owners covering the land and also in such instruments leasing their undivided interest in all the land upon like terms, constituted an election to disaffirm the deeds previously executed by their cotenants, W. B. and Sallie Walker, appellants did not thereupon, as against the rule of equitable partition applicable in the facts here, have an enforce-ble right or remedy to void said deeds and recover their undivided interest out of each tract separately. In such facts and regardless of whether appellants had elected to disaffirm and void the deeds, the court in adjusting the equities of all the parties would protect said purchasers (which it did upon the first trial by directing a verdict in their favor) because appellants’ interest in all the land could be fully and equitably satisfied out of the 31 acres.

We digress here to note that there is a distinction between an election of “rights” and an election of “remedies.” Seamans Oil Co. v. Guy, 114 Tex. 42, 262 S.W. 473. We have used the expression “election of rights and remedies” because both words are used in the record. But no contention is made that in the two suits filed by appellants they undertook to pursue inconsistent remedies or sought to enforce inconsistent rights. In appellees’ second proposition it is conceded that the two suits were identical in nature and issues.

After a cotenant has conveyed specific tracts, the non joining cotenants might in some circumstances so deal with the common property as to render the doctrine of equitable partition inapplicable or as would estop them from asking that their interest in all the acreage be set aside out of the unsold tract, or in the inverse order of alienation; but appellants, in executing the instruments complained of to United Production Corporation, did .not commit such an act. By ratifying the leases previously executed by the other owners (except the statements therein contained to the effect that said original lessors were the sole owners of the lands), and therein leasing their undivided interest to the owner of said leases, and on the same terms and conditions as contained in the original leases, appellants merely completed the sale and severance of the ⅞ leasehold, thus eliminating it and the leaseholder from involvement in the partition. The title and equities of all the parties as to the surface and unsevered minerals (⅛ royalty) was not affected. Appellants gained no advantage and the other owners were not in any way injured. The doctrine of equitable partition was applicable after execution of said instruments by appellants to United Production Corporation in like manner as before their execution.

By their second counter proposition appellees assert that since the judgment in the first suit, cause No. 11043, recites that plaintiffs (appellants here) “take nothing” as to certain of the defendants therein named (being the defendants claiming the specific tracts conveyed by W. B. and Sallie Walker to J. S. Hall and H. F. Walker) as to all the 221.44 acres, describing each tract comprising same, such “take nothing” judgment had the effect of divesting out of appellants and investing in said parties all the right, title and interest of appellants in all the land including the 31 acres involved in this suit; by reason of which said judgment constitutes an outstanding title in said parties in whose favor the “take nothing” judgment was rendered, and because of which appellants were not entitled to recover anything in this suit. Appellees cite Permian Oil Co. v. Smith, Tex.Civ.App., 73 S.W.2d 490, and the opinion of the Supreme Court overruling motion for rehearing, 129 Tex. 413, 107 S.W.2d S64, and cases mentioned in those opinions. The above authorities declare the general rule that where plaintiffs’ petition is limited to the statutory action of trespass to try title to the land described therein and the defendants answer to a plea of not guilty, a judgment simply reciting “that plaintiff [s] take nothing by [their] suit” is regarded as “an adjudication that the title to the land involved is in the defendant, and such a judgment is equally as effective for that purpose as one expressly vesting title in the defendant.” See point one in Commissioner Leddy’s opinion, 73 S.W.2d 496, and point 11 in Special Justice Fouts’ opinion 107 S.W.2d 570. The rule is founded upon public policy, and its purpose is to prevent retrial between the same parties or their privies of a cause of action or issue which has been finally disposed of. We agree that the majority opinions in Permian Oil Co. v. Smith, supra, are far-reaching in application of the rule, but the decision in that case, and in no case found by us, can be held authority .for applying the rule to a judgment reading as does the judgment in cause No. 11043, which after reciting that plaintiffs “take nothing” by their suit against certain named (but not all) defendants as to the land involved, goes further and affirmatively shows on its face that it was not the intention of the judgment to divest plaintiffs and invest said defendants with all the title to all the land involved, by expressly excepting from the decree plaintiffs’ cause of action against certain named defendants as to a specific tract of land. A judgment, like any other written instrument, is to be construed as a whole and each part harmonized and given effect if possible. No particular part or clause in the judgment is to be seized upon and given the power to destroy the remainder if such effect can be avoided. In Campbell v. Schrock, Tex.Com.App., 50 S.W.2d 788, 791, a case in which the “take nothing” clause was sought to be given the controlling effect as here contended for, the court said: “In passing on the legal effect of a judgment, one should not look alone to an isolated sentence or clause thereof, but to the entire judgment, and, if necessary, to the judgment roll.” In the present case it is not necessary to look to the judgment roll. If the face of the judgment of cause No. 11043 is examined as a whole, with respect to matters here material, it shows that when plaintiffs in the introduction of their evidence announced that they would rest, all parties moved for a directed verdict in their favor and that said motions were sustained “except that part of such motions on the part of the defendants W. B. Walker and wife, Sallie Walker, A. J. McCook, Sandrock Royalty Company, Marion P. Weiner, Wm. B. Weiner, Jacques L. Weiner, North Central Texas Oil Company, Inc., Ralph E. Davis and Eolden Tripp, as to the tract of land known in said cause as the W. B. Walker 31-acre tract * * To avoid repeating their names, tile defendants last above mentioned will be referred to as W. B. Walker et al., and defendants claiming the J. S. Hall and H. F. Walker tracts will be referred to as J. S. Hall et al. The directed verdict returned by the jury in cause No. 11043 is then set out in the judgment and it expressly recites that in accordance with instructions of the court no finding was made in favor of defendants W. B. Walker et al. against the plaintiffs as to said 31-acre tract. The judgment then recites that upon return of said verdict the court decreed:

“That plaintiffs take nothing by reason of their suit against the defendants * * * J. S. Hall et al. * * * for the following described land and premises (describing all the 221.44 acres) * * *. It is further ordered, adjudged and decreed that plaintiffs take nothing by reason of their suit against the defendants * * * W. B. Walker et al. * * * for the lands and premises described in the preceding paragraph of this decree, except insofar as the suit of plaintiffs against such defendants * * * W. B. Walker et al., * * * is applicable to the 31 acres * * ⅜ known in this case as the W. B. Walker 31-acre tract * * * and that such defendants * * * except as to the 31 acres above described, go hence without day and recover their costs. * ⅜ * It is further ordered that the motion (for directed verdict) of the defendants * * * W. B. Walker et al., * * * insofar as it is applicable to the 31-acre tract so excepted in the preceding paragraph of this decree and described therein, be, and it is hereby, in all things, overruled.
“ * * * The trial of said cause continued from day to day by plaintiffs and against the defendants * * * W. B. Walker et al., * * * in respect of the tract of land known as the W. B. Walker 31-acre tract above described, and evidence was taken until on the 6th day of November, 1937, when all the evidence being in, both sides closed the case * * * (here it is recited that motions for directed verdict were made by plaintiffs and defendants, each being heard and overruled) * * * and while the court was in the course of preparing the charge of the court to the jury, with respect to the tract of land known as the W. B. Walker 31-acre tract above described, came plaintiffs in open court and announced they would no longer prosecute their case against defendants * * * W. B. Walker et al., * * * upon such 31 acres, and moved that the same be dismissed without prejudice at plaintiffs’ cost; it is accordingly ordered, adjudged and decreed that the motion for plaintiffs for non-suit be and the same is herewith sustained, and such cause as to the defendants * * * W. B. Walker et al., * * * upon the tract of land known as the W. B. Walker 31-acre tract, be, and the same is herewith, in all things dismissed without prejudice at the cost of plaintiffs.”

So it is seen that when viewed from its face and construed as a whole, the judgment in cause No. 11043 purports to decree that plaintiffs “take nothing” against all the defendants as to all the land, expressly excepting from such decree plaintiffs’ cause of action against certain defendants (appellees here) as to the 31-acre tract, thus affirmatively showing the intention not to divest plaintiffs of their rights in the 31 acres and invest same in defendants. We think the face of the judgment sufficiently shows that appellees’ contention is unsound. But, if it should be held necessary to look to the judgment roll in order to make the language and effect of the judgment clear, -it will be seen from the petition that plaintiffs did not allege the formal statutory action of trespass to try title, but an action for partition of land in which the facts are fully pleaded, beginning with the marriage of J. N. Stone and Amanda Taylor in 1865, their purchase of the land, history of their heirs and of the deeds and leases covering the land, including the deeds by plaintiffs’ cotenants W. B. and Sallie Walker conveying the specific tracts to J. S. Hall and H. F. Walker, and including the admission that all the land was of uniform value and that plaintiffs’ undivided interest in all the land could be satisfied out of the remaining 31 acres, and a prayer that it be so partitioned. In such facts as pleaded, the purpose and effect of the judgment of the court in directing the verdict and entering the decree that plaintiffs take nothing by reason of their suit against the defendants as to all the land except as to the 31 acres and proceeding with the trial as to the 31 acres, clearly appears as intended to protect the purchasers of the specific tracts, as they were entitled to be protected, and to set aside plaintiffs’ inherited interest, if any they had, in all the land out of the 31 acres, upon adjusting the equities of the parties claiming an interest in the 31 acres.

Appellees’ 3rd counter proposition reads: “Plaintiffs (appellants) having bought an undivided ten acres mineral interest in the 31 acre tract from Wm. B. Weiner, Jacques L. Weiner, Marion P. Weiner and North Central Texas Oil Company, Inc., who held title from and under W. B. Walker and wife, Sallie Walker, thereby attorned to. and embraced the W. B. Walker title, the effect of which was to ratify and confirm the title of these defendants to minerals in the same tract also held under W. B. Walker and wife, Sallie Walker, and any recovery, if any otherwise were had by plaintiffs could not be had as against these defendants, so that the judgment of the trial court was correct and should be affirmed.” Appellees W. B. and Sallie Walker urged the same counter propositions as supporting their contention that the judgment of the trial court should be reversed and judgment here rendered that appellants take nothing except said undivided 10-acre mineral interest which they purchased from Weiner brothers et al.

The facts pertinent to the counter proposition, in substance, show: Appellants and W. B. Walker and Sallie Walker as tenants in common owned the 221.44 acres of land, J. N. Stone and wife, Amanda Stone, being the common source of title. W. B. and Sallie Walker conveyed to J. S. Hall and H. F. Walker specific tracts, comprising all the land, except the 31 acres. Of these 31 acres appellants were entitled to 27.68 acres, and W. B. and Sallie Walker 3.32 acres. W. B. and Sallie Walker then began conveying undivided mineral interests in the 31 acres. The first of such mineral deeds purported to convey to A. J. McCook and H. H. Miller S acres; later they executed two deeds on same date, conveying to Weiner brothers 6 acres and to North Central Texas Oil Company, Inc., 4 acres; later they conveyed to Ralph E. Davis 5 acres. Then suit No. 11043 was filed by appellants against all parties claiming an interest in the 221.44-acre tract. The disposition of that suit has heretofore been detailed. Then appellants filed the present suit against W. B. and Sallie Walker and all claimants of mineral interests in the 31 acres under the above mentioned mineral deeds executed by W. B. and Sallie Walker, including said Weiner brothers and North Central Texas Oil Company, Inc. During pendency of the present suit, appellants and said defendants Weiner brothers and North Central Texas Oil Company, Inc., agreed upon a compromise and settlement of the disputed claims between them. The agreements were reduced to writing, and signed by appellants and said defendants, Weiner brothers and North Central Texas Oil Company, Inc. The instruments' after setting out their conflicting claims, recite that the parties executing the instruments “have agreed upon a compromise and settlement of said controversy, and for that purpose do make and enter into the following agreement. * * * ” The terms of the agreements are to the effect that said defendants, Weiner brothers and North Central Texas Oil Company, Inc., be allowed to retain ½ the royalty or oil runs from the 1-acre interest so claimed by them which accrued prior to November 1, 1937, and additional amounts of such oil runs of the value of $2,400, and in consideration of which said defendants thereby assigned and conveyed to appellants said interest of 10 acres “purported” to have been conveyed to said defendants by W. B. and Sallie Walker. Said defendants were then dismissed from the suit. It will be here noted that W. B. and Sallie Walker had conveyed to A. J. McCook and H. H. Miller 5 acres (being more than W. B. and Sallie Walker were entitled to) out of the 31 acres, prior to their conveyance of the 10 acres to said defendants, Weiner brothers et al; and that under the rule authorizing avoidance of conveyances of a cotenant in inverse order of their execution to the extent that the non joining cotenants have been injured thereby, the deeds of W. B. and Sallie Walker to said defendants Weiner brothers et al., to the 10 acres would have been completely avoided in final adjustment of the equities between the parties to the suit. So appellants acquired no advantage and the other defendants were not injured by appellants’ alleged “purchase” of the 10 acres in settlement with Weiner brothers et al. There is no testimony in the record or any expression in said settlement agreements tending to show that appellants agreed to accept said 10 acres in satisfaction of all their interest in the land, or any admission on the part of appellants that W. B. and Sallie Walker and their assignees of mineral interests (appellees) held a superior right to appellants’ claim. Appellees’ contention in substance is that the settlement agreements constituted a purchase on the part of appellants of the 10 acres from said defendants Weiner brothers et al.; and that since said defendants claimed under 'mineral deeds from W. B. and Sallie Walker, therefore the act of purchase by appellants of said 10 acres mineral interest had the effect, as a matter of law, to “ratify and confirm” title in the remaining defendants, W. B. and Sallie Walker and their assignees of mineral interests, to 'all the 31 acres; by reason of which appellants should recover none of the surface and only the 10-acre mineral interest so purchased by them from the defendants Weiner brothers et al. Expressed in other words, it is claimed that the act aloné of purchasing said 10-acre mineral interest from said defendants, grantees of W. B. and Sallie Walker, had the legal effect of divesting appellants of all their interests previously held in the land and investing title thereto in appellees. In support of the contention appellees cite Harrison Oil Co. v. Sherman, Tex.Civ.App., 66 S.W.2d 701, writ refused; Simpson-Fell Oil Co. v. Stanolind Oil & Gas Co., Tex.Sup., 125 S.W.2d 263; McGee v. Stark, Tex.Civ.App., 127 S.W.2d 589; Barnes v. Lynch, 151 Mass. 510, 24 N.E. 783, 41 Am.St.Rep. 470; Havard v. Smith, Tex.Civ.App., 13 S.W.2d 743; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207; Elliott v. Langham, Tex.Civ.App., 60 S.W.2d 287; Wise v. Haynes, Tex.Civ.App., 103 S.W.2d 477; Kimbro v. Hamilton, 28 Tex. 560; Fordson Coal Co. v. Potter’s Executors, 237 Ky. 311, 35 S.W.2d 298. None of the authorities cited warrant the conclusion drawn by appellees. We think the contention is clearly unsound.

Appellee Mrs. Sallie Walker makes the contention that appellants should not be allowed to recover, because she testified and the jury found that at the time she and her husband, W. B. Walker, conveyed the specific tracts to J. S. Hall and H. F. Walker she intended to reserve all the remaining 31 acres as the balance of her inherited interest in the 221.44 acres. No grounds are alleged or any prayer made for cancellation of said deeds. We do not think that a grantor by such secret intentions as here alleged can contradict and destroy the plain reading and effect of a deed.

It appears from the record that the trial court erred in not awarding appellants a recovery of an undivided interest of 27.68 acres out of the 31-acre tract. So, the judgment will be reversed and judgment here rendered that appellants recover out of the 31-acre tract an undivided interest of 27.68 acres of the surface and minerals, subject to the oil and gas lease. Said 27.68 acres mineral interest shall comprise the 11 acres not conveyed by W. B. Walker and wife, Sallie Walker, and the 5 acres conveyed by W. B. and Sallie Walker to Ralph E. Davis, and the 10 acres conveyed by W. B. and Sallie Walker to Weiner brothers and North Central Texas Oil Company, Inc., and 1.68 acres of the 5 acres conveyed to A. J. McCook and H. H. Miller; thus avoiding said deeds to mineral interests in the 31 acres executed by W. B. and Sallie Walker in the inverse order of their execution to the extent of awarding appellants recovery of 27.68 acres, such being to the extent only that appellants’ interest was injured by said conveyances. A result of this decree is that the deed executed by W. B. and Sallie Walker to A. J. McCook and H. H. Miller is not avoided as to 3.32 acres. A. J. McCook still owns his ⅛ of said 3.32 acres. H. H. Miller conveyed his ½ to Sandrock Royalty Company, which company conveyed to J. E. Day, who conveyed 1 acre to Phillip Blatt, and 66/100 acre to Harry Greenburg by deed purporting to convey one acre. Wherefore the title in A. J. McCook to 1-66/100 acre and in Phillip Blatt to 1 acre and in Harry Greenburg to 66/100 acre, undivided mineral interest will be quieted. It will be further decreed that appellants recover the oil and gas royalties accrued and to accrue to the undivided 27.68 acres interest in the 31 acres. The cost will be adjudged against appellees.


text:
    TEXAS EMPLOYERS INS. ASS’N v. WARREN.
    No. 2294.
    Court of Civil Appeals of Texas. Waco.
    March 6, 1941.
    Rehearing Denied March 27, 1941.
    Lawther, Cramer, Perry & Johnson, of Dallas, for appellant.
    John W. West, of Dallas, and J. C. Lumpkins, of Waxahachie, for appellee.
   TIREY, Justice.

. This - is a workmen’s compensation case. Appellee brought this suit to set aside an award of the Industrial Accident Board, denying him any recovery on his claim filed before said Board. He sued for a recovery of compensation for 401 weeks and alleged that he was entitled to have the appellant redeem its liability in a lump sum. The jury returned a verdict on special issues, upon which verdict the trial court (after consideration of motion for judgment on the verdict by appellant and upon motion made by appellee and notice under Art. 2211, Vernon’s Annotated Civil Statutes, as amended in 1931, Acts 42nd Leg., ch. 77, p. 119, sec. 1, to disregard jury finding to Special Issue No. 16 of the court’s charge, and appellee’s admission that he was entitled to a weekly compensation rate of only $7 per week, the minimum amount allowed according to law, the jury having answered all other issues favorable to appellee) entered judgment in favor of appellee and against appellant for a lump sum calculated at the minimum wage rate of $7 per week.

Appellant’s first proposition is: .“Where the evidence shows that the claim for compensation was filed over two and one-half years after the alleged injury, and the only excuse was (1) that he did not. know the seriousness of his injury, hut his evidence and that of his doctor and the jury found he became totally disabled eight days after such injury, and (2) that settlement negotiations were being had, and the evidence showed the only offer during the two and one-half years was $25.00, the court erred in not sustaining appellant’s motion for an instructed verdict.” We overrule this assignment. Appellee pleaded, in part, substantially as follows: That he was injured on or about October 28, 1936, while engaged in the course of his employment for the Texas Power & Light Company, and that said injury originated and had to do with the business of said company, and that he sustained the injury while doing the usual and customary duties of said employer; that within thirty days of the date of said accident and resulting injuries to him, he notified his employer, and that claim for compensation was filed with the Industrial Accident Board of the State of Texas within six months from the date of said injury. In the alternative, he alleged good cause for failure to file notice and claim within the time stated. Appellant, on October 23, 1939 (two days before this cause went to trial, all parties having announced ready), filed its first amended original answer, which pleading, among other things, denied under oath (for the first time) the allegations, in appellee’s petition that notice of injury was given within thirty days and that this claim for compensation was filed within six months. Ap-pellee, by special exceptions, seasonably invoked the provisions of Art. 8307b, Vernon’s Annotated Civil Statutes '(Acts 1937, 45 Leg., pp. 53’5, 536, ch. 261, sec. 2), to the verified plea filed by appellant. The court overruled said exceptions and the cause proceeded to trial on its merits. As we understand the provisions and effect of the above article of the statute, appellant admitted the truth of the allegations as to (1) notice of injury, and (2) claim for, compensation, by failing to deny them by verified pleadings, filed not less than seven days before the cause proceeded to trial. Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900, point 1, page 902, writ refused. See also Bedner v. Federal Underwriters Exchange, Tex.Civ.App., 133 S.W.2d 214, point 7, page 217. Said statute, in part, provides that “such denial may be made in original or amended pleadings; but if in amended pleadings such must be filed not less than seven days before the case proceeds to trial.” The verified pleading in this cause was filed only two days before it proceeded to trial. “The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive * * Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, point 2, page 1087. We therefore hold that the failure of appellant to comply with the provisions of the above article of the statute concluded the issue of good cause raised by it by a legal presumption. *It necessarily follows that appellant’s fourth proposition, which complains of the court’s definition of good cause, is without merit. It likewise follows that appellant’s third proposition, to the effect that the finding of the jury that good cause existed for not filing a claim for compensation for over two and one-half years after the alleged accident was against the preponderance of the evidence, becomes immaterial.

Appellant’s second proposition is: “Where the appellee fails to establish a wage rate based on his theory that the third subsection of the wage rate statute applies, and the jury finds to the defensive issue (Requested Special Issue No. 2) that there were other employees in the same or similar employment, given as a part of the court’s charge (Issue No. 16 imthe Charge), judgment should be rendered for the appellant.” This proposition cannot be sustained. The jury in its verdict found (Special Issue ,. No. 16) that “there was an employee engaged in the same or similar employment as plaintiff on October 28, 1936, at the same or a neighboring place who had worked substantially the whole of the year prior to October 28, 1936.” It failed to find that it was impracticable to compute the average weekly wage under either subsection 1, or subsection 2, as provided in section 1 of Art. 8309, Vernon’s Annotated Civil Statutes, as amended in 1937 (Acts 45th Leg., p. 537, ch. 262, sec. 1). The jury did find (Special Issue No. 19) that the sum of $12 per week would be fair and just to both parties. We think it is clear that under Art. 2209, Vernon’s Annotated Civil Statutes, it was the duty of the trial court to render judgment on the verdict in favor of appellant, unless it set the verdict aside or granted a new trial, or unless the appellee invoked the provisions of Art. 2211, supra, which “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.” Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 972. In other words, the burden of proof was on the appellee to offer legal evidence establishing an average weekly wage under one of the three subsections of section 1 of Art. 8309, supra, and the appel-lee had the further burden to show by competent evidence that it was impracticable to compute the average weekly wage under either subsection 1 or subsection 2 before resort could be had to subsection 3. The jury in its verdict having found (Special Issue No. 16) that “there was an employee engaged in the same or similar employment as plaintiff on October 28, 1936, in the same or a neighboring place who had worked substantially the whole of the year prior to October 28, 1936;” and the jury having failed to find that it was impracticable to compute the average weekly wage under either subsection 1 or subsection 2, before resort could be had to subsection 3, the jury were not authorized to determine what amount would be fair and just as to both parties and had not in fact made the necessary finding that would enable them to consider and answer Special Issue No. 19. The appellee filed his motion for judgment and notice under Art. 2211, supra, to disregard jury finding to Special Issue No. 16, on the ground that such finding had no support in the evidence, and because there was no evidence to raise such issue, and becatise the uncontradicted and undisputed evidence established that there was not an' employee engaged in the same or similar employment as appellee on October 28, 1936, in the same 'or a neighboring place who had worked substantially the whole of the year prior to October 28, 1936. Said motion further admitted and conceded that appellee was entitled to a weekly compensation rate of only $7 per week, the minimum wage rate allowed according to law. The court granted this motion and entered judgment accordingly. The question then arises, did the trial court err in disregarding the jury’s answer to Special Issue No. 16? We think not. We have carefully considered the statement of facts, and we are of the opinion that the record is without evidence to support the jury in its finding to Special Issue No. 16. We therefore hold that the trial court had authority under Art. 2211, supra, to disregard the answer of the jury to said issue. Texas Employers’ Insurance Association v. Roberts, 135 Tex. 123, 139 S.W.2d 80, point 5, page 84.

Did the trial court err in disregarding the answer of the jury to Special Issue No. 19, and in lieu thereof awarding compensation to the appellee at the minimum wage rate fixed by statute? We think not. It is well settled that if the employee is entitled to compensation, the carrier is not injured by the award where it is based on the minimum fixed by the statute. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332, point 9, pages 336, 337.

The jury found all other issues in favor of appellee, and, in our opinion, there is, evidence to support such findings. All other assignments have been considered and each is overruled.

The judgment of the trial court is affirmed.


author: WILLIAMS, Justice.

text:
    REES v. STATE.
    No. 5775.
    Court of Civil Appeals of Texas. Texarkana.
    March 6, 1941.
    Rehearing Denied March 27, 1941.

      Hardy Moore, of Paris, and J. M. Lasa-ter, of Naples, for appellant.
    Starnes & Pharr and Edgar Hutchins, all of Greenville, and Boyet Stevens and George French, both of Daingerfield, for appellee.
   WILLIAMS, Justice.

' This is a suit for taxes and for foreclosure of tax lien filed by the State of Texas in behalf of itself, Morris County, and certain political subdivisions of the county, to recover of Evan Rees, defendant below, the sum of $3,188.54 allegedly assessed and due as taxes, interest and costs against twelve tracts of land, aggregating 4,800 acres, owned by defendant. Taxes for the years 1919, 1931, 1932, 1933, 1935, 1936, 1937 and 1938, are involved.

To the first amended original petition upon which trial was had, appellant interposed a general demurrer and a general denial. No assignment of error attacks the sufficiency of the amended original petition in stating a cause of action to support the' judgment rendered, and its allegations will not be detailed. Appellant urged in his answer and asserts in this appeal that the assessments of taxes so made were invalid, being in contravention of Sections 1 and 20 of Article 8 of the Texas Constitution, Vernon’s Ann.St., in that the properties were not assessed during the years involved at their fair cash market value, nor on an equal and uniform basis with other property of like kind in the county. The defense urged is more clearly reflected in the following quoted portion of the answer reading, “That in valuing defendant’s property for tax purposes during the years involved, the taxing authorities were motivated by a desire to raise a certain amount of revenue for Morris County, without consideration of the value of the property sought to.be taxed, and without considering the value' of the defendant’s property in relation to other property of like kind and that had defendant’s property been taxed during the years involved on the same basis as other property of a similar kind in proportion to its value, the taxes would not have amounted to more than 50% of the amount involved in this suit.” At the close of the evidence, the court peremptorily instructed the jury to return a verdict for the plaintiff. Judgment was entered against appellant for the amount sued for, together with foreclosure of tax lien against the respective tracts in the amount found to be due against each.

During the years involved this land was assessed at $3 an acre, except at $3.25 for 1932. Appellant’s land is situated between White Oak and Sulphur rivers and from 50 per cent to 80 per cent is subject to overflow. Seventy-five acres'have been cleared and were cultivated up to 1935. Its chief value comes from its timber and use for grazing purposes. Through the years timber has been cut and is now being cut from the property. The overflows are gradually destroying its value for grazing purposes. •Portions of the land from time to time have been under oil and gas leases from which yearly rentals have been received. Appellant’s witnesses valued the land at $3 or $4 an acre in 1931; $2.50 in 1938; never worth as much as $3 an acre; $2 an acre since 1931, not over $2 an acre. The Heard tract of land in the general area was assessed for taxes at $4 an acre for 1933, 1934 and 1935, and at $3 for subsequent years. Beggs rendered his tract of 160 acres at $3 or $3.75 an acre. Renditions of two others tracts in the area were $3 or $4 an acre. The testimony did not disclose the valuation placed upon any other real estate situated in other parts of the county. A large part of the evidence dealt with the improvements, extent of overflow, and use of above tracts in comparison with that owned by appellant. It may be said that appellant’s land was not as valuable when these various elements are considered.

Appellant did not testify. The evidence does not disclose if appellant did or did not render the property for taxes. If he did, there is no contention made in his pleadings or on this appeal that the Commissioners’ Court sitting as a Board of Equalization raised the values of any rendition, nor that the tax assessor did so. It was admitted that the 1919 taxes were properly assessed, and during the trial 'appellant tendered the amount due on same. The county judge of Morris County for 1929 to 1935, a commissioner of the county for 1930 to 1936, and a deputy tax assessor testified to the schedule or plan used by the cotinty during the period of time to assess property for taxation. The valuation placed on this land and other real estate in Morris County was supposed to represent 60 per cent of its actual value. “We didn’t use any method, but as an Equalization Board we tried to get 50% to 60% of the actual value.” “We valued the land at 60% of its value.” “We valued each farm so much and tried to equalize every farm the same according to what his land was worth and tried to keep it down below the market value; personal property about the same, might have been less than 60% and maybe a little more; bank stock was figured at fifty some-odd.” In response to inquiry how bank stock had been assessed, the deputy assessor testified that the capital and surplus of a bank was assessed at 50 per cent; and as high as 55 per cent, but could not say as to 60 per cent ; that any land owned by it was figured in as part of the capital.

The county judge testified that in 1932 or 1933 when the county first began to operate under the Budget Law, Vernon’s Ann.Civ. St. art. 689a — 9 et seq., they had to figure the income and the expenses and “had to raise the tax to meet the budget;” “Well, possibly we raised the tax some. I wouldn’t be sure, but it seems to me like we had to raise the tax a little bit. Before the budget law became effective you could issue warrants and just continue to issue warrants, and after the law went into effect you could not, and I know we had to raise the tax the first year to meet the budget. This budget requirement was new to us, and it gave us aU the headache.” If it be assumed that this witness intended to mean that they had to raise the valuation and did so, this record reflects an increase of 25 cents an acre for the year 1932, the years prior and subsequent thereto being at $3.

The testimony of these officials that they tried to value each tract of land in the county at 60 per cent of its value and personal property about the same, there being no evidence offered of a contrary intent, would not warrant a conclusion that the taxing authorities had acted in bad faith or arbitrarily without regard to value in fixing valuations. The testimony of said officials that they had not adopted or used any other method than above stated, there being no evidence to the contrary, would not have supported a jury finding, if submitted to them, that the taxing authorities had assessed this land under a rule or scheme as condemned in Willis v. State, Tex.Civ.App., 142 S.W.2d 385, and the authorities there collated, namely, “The assessment of property regardless of its location or situation or market value at the same general valuation,” or that “the equalization board had used an illegal, arbitrarily or fundamentally wrong scheme in making the assessment.” The evidence offered by appellant, when viewed in its most favorable light, may reflect an overvaluation, and when compared to other lands in the area might indicate a lack of uniformity. If it be conceded that this evidence shows an overvaluation or a lack of uniformity in assessing the value when compared to other land in the general area of this, such under the other uncontrovert-ed facts of this record would not present a jury question. In State v. Mallet Land & Cattle Co., 126 Tex. 392, 88 S.W.2d 471, 472, applicable to above observations and to the evidence here, it is stated: “No testimony was introduced tending to show that the board of equalization acted in bad faith in fixing the amount of taxes. The rule has been repeatedly announced that, in the absence of fraud or illegality, the action of a board of equalization upon a particular assessment is final; and, furthermore, that such valuation will not be set aside merely upon a showing that the same is in fact excessive. If the board fairly and honestly endeavors to fix a fair and just valuation for taxing purposes, a mistake on its part, under such circumstances, is not subject to review by the courts.”

In addition to the authorities there collated, see Allen v. Emery I. S. Dist., Tex. Civ.App., 283 S.W. 674; Sparks v. State ex rel., Tex.Civ.App., 27 S.W.2d 918; Brundrett v. Lucas, Tex.Civ.App., 194 S.W. 613; Early v. City of Waco, Tex.Civ.App., 3 S.W.2d 131; Hinkson v. Lorenzo I. S. Dist., Tex.Civ.App., 109 S.W.2d 1008; Simkins v. City of Corsicana, Tex.Civ.App., 86 S.W.2d 792. We pretermit a discussion of the provisions of Section 20, Article 8, Texas Constitution, for therein it is stated: “This amendment shall be effective January 1, 1939.” The. assessments here involved were made prior to above date. 16 C.J.S., Constitutional Law, § 40, p. 83.

Appellant asserts under his first two propositions that “The deputy tax assessor and collector of Morris County should not have been permitted to testify, over timely and proper objection, that the appellant owed taxes, the amount of same, and the tracts against which they were assessed, because the witness purportedly testified from a copy of the original tax rolls of Morris County, referred to in the statement of facts as the ‘Delinquent Tax Record,’ as it was not shown to be a certified copy or based upon authenticated records.”

The witness Cason, after identifying himself as the Deputy Tax Collector of Morris County, testified that he then held in his hands “The Delinquent Tax Record of Morris County, Texas;” that “it contains all the delinquent taxes due Morris County from 1919 to the present time.” He further testified that it was not the original record in the tax office, or the original assessment made against each taxpayer; that the original tax roll and all the entries from that tax roll after July 1st each year is transferred to form No. 18. And further:

“Q. If I understand your statement, you have a rendition sheet made by the tax payer and then you have an assessment roll, and then after July 1st if the tax is not paid then you place it on the delinquent tax roll? A. No, sir; to form 18, and then to the delinquent tax record.
“Q. Do you submit that form 18 to the Comptroller of the-State? A. Yes, sir; he gets one and we keep one.
“Q. And then you put them on that delinquent record ? A. Yes, sir.”

Over appellant’s objection “that such delinquent tax record was not authenticated as required by law,” the deputy tax collector was permitted to read and testify from his record the taxes assessed and delinquent against each tract and for each of the years involved. Article 7326, R.C.S. of 1925, reads: “ * * * All delinquent tax records of said- county in any county where such suit is brought shall be prima facie evidence of the' true and correct amount of taxes and costs due by the defendant or defendants in such suit, and the same or certified copies thereof shall be admissible in the trial of such suit as evidence thereof. * * * ”

It is thought that the foregoing statutory provision when tested by the general ■ denial interposed by appellant is determinative of this proposition against him. Crocker v. Santo Consol. I. S. Dist., Tex. Civ.App., 116 S.W.2d 750.

The judgment of the trial court is affirmed.


author: COMBS, Justice.

text:
    METROPOLITAN LIFE INS. CO. v. BUTLER.
    No. 3641.
    Court of Civil Appeals of Texas. Beaumont.
    March 20, 1941.
    Rehearing Denied April 2, 1941.

      Vinson, Elkins, Weems & Francis and Simon Frank, all of Houston, for appellant.
    Adams, Hart & Daughtry and Maston Meagher, all of Beaumont, for appellee.
   COMBS, Justice.

In this case the plaintiff, Alphonce Butler, recovered judgment against the appellant insurance company, defendant below, for disability benefits in the aggregate amount of |623.04. Also $145 cash value of retirement annuity feature of the policy under which he was insured. This latter sum was tendered into court by the insurance company and there is no dispute here concerning his right to recover it.

The insurance company defended against the claim for disability benefits on the ground that plaintiff was not totally and permanently disabled within the meaning of the policy. The policy provided with respect to permanent disability insurance that the company would pay the stipulated amounts upon receipt of due notice that insured “has becopie totally and permanently disabled as the result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation or performing any work for wage or profit * * * ”, etc. The proof shows that on February 25, 1937, while an employee of Magnolia Refining Company and covered by said policy, appellee severely strained his back while assisting ■ other workmen in carrying a heavy pipe. He was confined to the hospital for several days and then removed to his home where he was under the treatment of a physician for some seven months. He claims that his back is in such condition that he cannot do any lifting or manual labor without severe pain. His medical witness, Dr. F. W. Sutton, testified that he treated plaintiff from the time he was injured; that he treated him regularly for seven months and has seen him a number of times since. He gave it as his opinion that plaintiff is totally and permanently disabled. He stated that plaintiff is a large man. He weighed 260 pounds when injured and has lost about thirty pounds in weight since his injury; that his injury was a strain of the lumbar muscles, and in his opinion he will never be able to do physical labor. At the time of trial plaintiff was wearing a belt which Dr. Sutton prescribed for him. Dr. Sutton was asked:

“Q. Doctor, taking a man that only went to about the sixth grade in school, has never done anything but heavy labor, manual labor, and has an injury such as this man suffers, do you know any kind of work he can do ? A. I don’t- know of any.”

On cross-examination Dr. Sutton stated that appellee could do tasks not requiring physical exertion, such as bookkeeping and the like, provided he was mentally qualified, but he was positive in his opinion that plaintiff could not do physical labor. The insurance company offered medical testimony to the effect that plaintiff is not disabled at this time. The X-ray picture showed no injury to the bones of the spine. And Dr. Fortney who treated him at the hospital testified that when he left the hospital he walked and appeared to be well. Plaintiff has assisted in looking after a filling station owned by his wife for a year and a half. Also, moving pictures were offered showing plaintiff removing a wheel from an automobile. He freely admitted looking after the filling station and removing the wheel on the occasion in question but testified that he merely sat around the station and assisted the boys who were operating it. In this he was corroborated by his wife.

On jury findings that plaintiff is totally and permanently disabled, the trial court entered judgment in his favor.

We overrule appellant’s contention that the jury’s findings of total and permanent disability were without sufficient support in the evidence. True, the insurance company strongly controverted plaintiff’s proof on those issues. But under the evidence, the issue of disability was one of fact for the jury. So far as revealed by the record, plaintiff’s witness Dr. Sutton is an experienced and reputable physician. He explained at length the reason for his opinion that plaintiff is totally and permanently disabled. His testimony, to say nothing of the testimony of plaintiff and his wife, supports the jury’s findings sufficiently that this court would not be warranted in setting them aside.

The fact that plaintiff has been able to assist the employees in operating his wife’s filling station was a fact to be considered by the jury in determining whether or not he is totally disabled. But under the facts and circumstances in evidence, it did not establish, as a matter of law, that he is not so disabled. Great Southern Life Ins. Co. v. Johnson, Tex.Com.App., 25 S.W.2d 1093; Hefner v. Fidelity & Cas. Co., Tex.Civ.App., 160 S.W. 330; Id., 110 Tex. 596, 606, 222 S.W. 966; Kemper v. Police & Firemen’s Ins. Ass’n, Tex.Com.App., 44 S.W.2d 978. In the Johnson case, supra [25 S.W.2d 1097], Judge Ryan said:

“A policy requiring payment for total disability ordinarily is not one of indemnity against loss of income but against loss of capacity to work. 6 Cooley’s Briefs on Insurance (2d Ed.) 5536. ‘Total disability’ is necessarily a relative matter, and must depend chiefly on the peculiar circumstances of each case and on the nature of the occupation or employment and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith.”

In the case before us the evidence shows that plaintiff is a common laborer. His work at the time he was injured required heavy physical exertion. His proof was ample to show that from the time of his injury he has not been able to do any substantial work requiring physical exertion. And if the opinion of his medical witness Dr. Sutton is to be accepted, he never will be.

Appellant complains of the argument of counsel wherein he said to the jury “We can’t have temporary disability and permanent disability at the same time because they’re just as different as day and night; you cannot have day while you have night * * * if it is permanent it cannot be temporary”; and also “If he had total disability then he cannot have partial disability, because those two things are just opposite.” It is contended that the argument constituted reversible error because it had the effect of informing the jurors the effect of their answers. The assignment is overruled. The argument quoted occurred at different times while counsel was discussing the several issues relating to “temporary”, “permanent”, “partial” and “total” disability. We think it was perfectly proper argument. By the argument complained of counsel did nothing more than to emphasize the matters inquired about in the several issues and direct the jury’s attention to the difference in “total” disability and “partial” disability, “permanent” disability and “temporary” disability. The very purpose of argument is to clarify the issues and aid the jury in making proper findings thereon. Courts should be as ready to encourage argument which tends to accomplish that purpose as they have been to condemn appeals to passion and prejudice. And if counsel cannot discuss the meaning of the issues and argue upon the evidence that they should be answered in a certain manner, then the purpose is defeated and argument of counsel reduced to a meaningless harangue, in no-wise contributing to fair and just jury verdicts. In this connection we express our hearty agreement with the comment of Justice Cody speaking for the Galveston Court of Civil Appeals in Yellow Cab Co. v. Underwood, 144 S.W.2d 291, writ dismissed, correct judgment.

Complaint is also made of the failure of the court to define the term “totally disabled”. The assignment is without merit. In submitting the issues, the court embodied therein the very words of the policy defining the term. The words were simple and plain and no amount of “defining” could have aided the jury. Definition would more likely have resulted in confusion than clarification.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: NORVELL, Justice.

text:
    CAGE et al. v. NUECES COUNTY.
    No. 10916.
    Court of Civil Appeals of Texas. San Antonio.
    April 2, 1941.
    Boone, Henderson, Boone & Davis, of Corpus Christi, for appellants.
    Hal Rachal, Linton Savage, Hayden W. Head, and Keys & Holt, all of Corpus Christi, for appellee.
   NORVELL, Justice.

This is an action brought by J. F. Cage and T. C. Cage, appellants, against Nueces County, appellee, upon a contract provide ing for compensation for the hauling of shell for roadway purposes. Trial was to a jury upon special issues and judgment rendered thereon that appellants take nothing.

Appellee’s objections to the consideration of appellants’ propositions and bills of exceptions are not well taken. We have considered all of appellants’ propositions, three in number.

Appellants’ first proposition asserts that appellee’s pleadings were insufficient to support the submission of special issue No. 3, which inquired as to whether or .not appellants, prior to the time of the hauling of the shell here involved, had agreed to look to a third party, Heldensfels Brothers, rather than the County for payment. This proposition is overruled. The County denied liability because of the hauling involved and pleaded that if any debt arose as a result thereof, Heldensfels Brothers were liable for the payment thereof.

'Appellants’ second proposition is overruled. There is no conflict in the jury’s answers to the issues submitted. 41 Tex. Jur. 1224, § 360.

Appellants contend that this cause should be reversed because of an asserted improper argument by counsel for appellee. Counsel stated in substance that this suit was filed in 1933 and not tried until 1940. Upon objection, the trial court admonished the jury not to consider the statement. The date of the filing of the suit was shown by appellants’ amended petition which was presumably read to the jury. The statement was therefore not outside the record. The inference that appellants’ claim was not well founded in fact, which counsel sought to draw from long penden-cy of the case upon the trial court’s docket, may have been an improper deduction from the facts, but we are of the opinion that any prejudice resulting therefrom was removed by the instruction of the trial court. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

Counsel for appellee also stated that if appellants’ claim had been just, the county would have paid it. Appellants objected, but the trial court evidently did not rule upon the objection. A statement by counsel, which is in effect an assertion that his client is honest in his business dealings, is not' ordinarily reversible error and we conclude that no reversible error is shown in the particular mentioned here. Appellants’ third proposition is overruled.

Being convinced that our original disposition of this case, affirming the judgment appealed from, was correct, appellants’ motion for rehearing is overruled. The foregoing will serve as the opinion of this Court.


author: WALTHALL, Justice.

text:
    STRATTON et al. v. BEIDLER.
    No. 4041.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Frank Lane, of Bracketville, for appellant.
    W. J. Muller, of Bracketville, for appel-lee.
   WALTHALL, Justice.

In this case H. F. Wilson and Clarence H. Stratton sue J. Francis Beidler and seek to enjoin and restrain him from placing boards or other obstructions in the dam and floodgate constructed afid maintained on the east bank of the Las Moras Creek in Kinney County, and from placing boards and other obstructions in the floodgate at the dam to the height of four feet, as alleged, thus causing such surplus of water beyond the capacity of plaintiffs’ ditch and causing the water to overflow plaintiffs’ farm lands contiguous thereto, thus destroying the crops on said land, and causing the damage to the land as alleged.

Plaintiffs allege the defendant Beidler, on February 26, 1940, in order to produce a surplus flow of water through said ditch, placed boards or other obstructions in said floodgate at said dam to the height of about four feet, thereby causing such surplus of water, beyond the capacity of said ditch, to overflow and seep through and on to their “Stratton Farm” land, thus causing alkali to come to the surface and making it ■ impossible to cultivate the soil and thus causing the damage complained of; that plaintiff Stratton has repeatedly removed boards and other obstructions from said floodgate so placed by defendant to a height of two feet thus eliminating such overflow of water in said ditch, but that defendant, time after time, replaced such boards or other obstructions in said floodgate, and has threatened to continue to do so, to plaintiffs’ irreparable damage. Plaintiffs pray for temporary injunction, and on final hearing the temporary injunction be made perpetual, and for general relief and for costs.

The court granted a temporary restraining order and set the time for hearing the evidence.-

Defendant answered in the suit by general demurrer and special exceptions, substantially as follows: Failure to allege with sufficient degree of certainty the dam referred to or its location, or who constructed it, or how or by whom it is maintained ; failure to allege with sufficient degree of certainty the location of the ditch, or by whom it is maintained, or as to the. quantity of water that should go through the ditch for domestic purposes below plaintiffs’ farm, or the reasonable quantity of water to go through the ditch without injury to plaintiffs’ farm; nor. does the petition show who controls and maintains or who should control and maintain the boards or other objects placed in the floodgate at the dam; fails to allege from where the height of two feet is measured, or the quantity of water passing through said ditch on the east side of plaintiffs’ farm for domestic purposes for those residing below said farm; nor does the petition allege the person or persons who reside below such farm.

Defendant further answered in the suit by general denial, and by traversing the facts alleged in plaintiffs’ petition, specially denied each fact or statement as made hy plaintiffs in their petition charging him with the matters complained of, thus specially denying the main fact in plaintiffs’ petition, that on the 26th Hay of February, 1940, in order to produce a surplus flow of water through said ditch he placed boards or other obstructions in said floodgate or at the dam to the height of four feet, and denied that he had threatened continuing to do so.

As we understand the pleadings as presented here, the case presented is one of facts alleged by one side and the facts as alleged specifically denied by the other side; that is,' the plaintiffs simply state certain facts committed by the defendant of which they complain, and the defendant simply denied having committed such acts, and that there is no intention of either party to put at issue the right to the use of the water in the stream or ditch.

The trial court upon the presentation of the petition granted a temporary restraining order, the order granted providing for a further hearing on the application for a temporary injunction, and fixed the time and place for such hearing. Upon the date fixed by the court for such hearing the parties by agreement postponed the time for such hearing, and by agreement the cause was called for trial at the time agreed upon for a healing on the application for a temporary injunction, at which time the court heard the defendant’s general demurrer and special exceptions and overruled each of them, to which defendant excepted. The court heard the evidence and, while not making a separate finding of fact, in the opinion expressed the following: “that the application herein made is largely controlled by the decision of the Court of Civil Anpeals of the Fourth Supreme Judicial District of Texas in the case of Stratton versus West and Bennett, 27 Tex.Civ.App. 525, 66 S. W. 244, to this effect: The ditch running east of the Stratton Farm, as described in plaintiffs’ petition herein, is the same ditch involved in said case, the right to the use of which and the flow of water through the same to Tank #1 was in said case adjudicated to be vested in West and Bennett, and from the description of the land as disclosed by the evidence in this case the Gaeblers are presumably the successors in title, or at least possession, to West and Bennett, and therefore enjoy the rights to the use of said ditch in said cause vested in the said West and Bennett, and being vested with said right there likewise devolves upon them the correlative duty to maintain said ditch in such manner as that at least a normal flow of water, would not over flow to plaintiffs, Stratton’s and Wilson’s lands. And the evidence further failed to establish that the increased water caused to flow into said ditch by the acts and conduct of the defendant, Beidler, would be excessive if the ditch running east of the Stratton farm were maintained in good condition; and the evidence further establishing that said ditch was not maintained in good condition, the court is of the opinion that there is an absence of necessary parties before the court, that is, the present owner, or owners, of the ditch lying immediately east of the Stratton farm, the alleged over flow from which brought about or occasioned the alleged damage to- the Strat-ton Farm-; and therefore the relief prayed for should be and hereby is in all things denied.”

From the facts found by the trial court the court was of the opinion that the cause of the overflow of the water on plaintiffs’ land was the faulty condition of plaintiffs’ ditch rather than the increase in the number of boards placed in the floodgate at the dam as alleged by the plaintiffs.

The evidence, we think, is sufficient to sustain the court’s findings as to the faulty condition of the ditch. The court did not make a finding on the issue presented as to whether or not defendant placed the boards in the floodgate, being of the opinion, no doubt, that if the faulty condition of plaintiffs’ ditch was the cause of the overflow on to plaintiffs’ farm, any finding as to how the boards got into the floodgate to cause the increased flow would be immaterial.

The condition of the evidence and the court’s findings, as expressed in the opinion, are sufficient, we think, to justify the refusal to grant the injunction.

Neither party has filed a brief in this court.

The case is affirmed.


text:
    CLARKE et al. v. GAUNTT.
    No. 2260.
    Court of Civil Appeals of Texas. Waco.
    Feb. 20, 1941.
    Rehearing Denied March 27, 1941.
    H. O. Clark and Fitzpatrick & Dunnam, all of Waco, for appellants.
    John B. McNamara, John N. Gauntt, and Joe W. Taylor, all of Waco, for appel-lee.
   TIREY, Justice.

This suit was brought by John N. Gauntt against Nellie Bailey and E. L. Smith, to recover on their joint promissory note, payable to him, and to foreclose a deed of trust lien on certain property in McLennan county, which deed of-trust lien was executed by Nellie Bailey (-a feme sole at the time of the execution of these instruments) contemporaneously with the note. Plaintiff made other parties defendant to the suit before proceeding to trial, as will hereafter appear. At the conclusion of the evidence, plaintiff dismissed his suit as to the defendant estate of W. M. Bailey, deceased; and against E. L. Smith, because Smith was actually and notoriously insolvent. Thereupon the court, of its own motion, withdrew this cause from the jury and found that the estate of Nellie Bailey Smith owned the land in question, subject to the payment, in due course of administration, of the debts of the estate of W. M. Bailey, now pending on the probate docket of McLennan county, and entered judgment in favor of plaintiff for principal, interest, attorney’s fees and costs, less credits, against Wm. T. Clarke, administrator of the estate of Nellie Bailey Smith, and for foreclosure of the deed of trust lien on the land, arid directed that the judgment be certified to the County Court of Mc-Lennan county, sitting in matters probate, where the estate of Nellie Bailey Smith was being administered, to be there classified, enforced and paid according to law. Wm. T. Clarke, administrator of said estate, and Cecil Smith, surviving husband of Nellie Bailey Smith, deceased, have appealed.

The note was dated September 23, 1931, and was in the principal sum of $500, payable to plaintiff, with interest from date at the rate of 8 per cent, per annum. It was payable in twelve equal monthly installments, the last installment maturing on October 1, 1932. The property upon which the lien was given was the common property of W. M. Bailey and his deceased wife, who died prior to the execution of the instruments (leaving Nellie Bailey as her sole and only child). Nellie Bailey intermarried with Cecil Smith on April 5, 1933, and was the wife of Cecil Smith at the time of her death, which occurred on August 24, 1938. W. M. Bailey, her father, died on June 6, 1938. Nellie Bailey was the owner of an undivided one-half interest in the property described in the deed of trust at the time she executed and delivered that instrument and upon the death of her father she inherited the other undivided one-half interest. This cause went to trial on the 21st of June, 1939. Plaintiff filed his original petition on February 27, 1934. On March 13, 1934, Nellie Bailey filed pleas in abatement and coverture and pleaded that she had intermarried with Cecil Smith, and also pleaded a general demurrer and general denial, subject to the above pleas. Thereafter, on June 12, 1934, plaintiff filed his amended petition and in-terpleaded Cecil Smith, the husband, and W. M. Bailey, the father, upon the same cause of action as set forth in his original petition. Citation issued to Cecil Smith for the first time on June 20, 1938, and he was served on June 21, 1938. He answered and specially pleaded, in defense, the four-year statute of limitation. Vernon’s Ann. Civ.St. art. 5527. Thereafter, on April 13,. 1939, plaintiff, upon petition for writ of scire facias, caused Wm. T. Clarke, administrator of the estate of W. M. Bailey, deceased, and administrator of the estate of Nellie Bailey Smith, deceased, to be made party defendants; and Wm. T. Clarke, in each capacity, answered and specially pleaded, in defense, the four-year statute of limitation.

Error is assigned to the judgment entered by the trial court on the ground that the filing of the suit by plaintiff against Nellie Bailey in 1934 did not toll the running of the statute of limitation, and that since the evidence is undisputed that her husband was made a party defendant in 1934 but citation did not issue thereon for him until June 20, 1938, the plaintiff’s cause of action was barred as a matter of law. We overrule this assignment. This exact question has been decided adversely to appellants’ contention in City of Dallas v. Morris, 120 Tex. 181, 36 S.W.2d 702, 703. “The bringing in of the husband, prior to judgment, cures the defect, and this cure relates back, in its operation, to the commencement of the suit.”

Error is assigned by appellants to the action of the trial court in. foreclosing the deed of trust lien against the whole of the property described in the deed of trust, because the evidence shows that the property was the common property of the parents of Nellie Bailey Smith, and that at the time of the execution and delivery of the note and deed of trust said grantor owned only a one-half interest therein, and that since the grantor attempted to encumber only'the interest that she owned at the time of the execution of the deed of trust, the mortgage' lien of the plaintiff does not extend to the other one-half interest that she acquired by inheritance on the death of her father. We overrule this assignment. First of all, the record does-not raise the question that the grantor intended to encumber only her present interest in the property. The deed of trust in question conveys “all my right, title and interest in and to (then follows the description of property). To have and to hold the said property, together with all and singular, the rights, privileges and appurtenances to the same belonging to the .said N. B. Brown and his assigns forever in trust * * * .” Said deed of trust further provided for power of sale by the trustee and authorized the trustee “to make, execute and deliver to any purchaser or purchasers of said property a good and sufficient deed for such property,” and further provided “and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend the title to said property conveyed herein to 'the purchaser at any sale under this trust, his heirs and assigns, against the lawful claims of any and all persons whomsoever, claiming or to claim the same or any part thereof.” We have carefully examined the deed of trust and find nothing in the same to indicate that the grantor therein undertook to convey only a one-half interest in the property. On the contrary, we think it appears that she conveyed the whole of the property in trust to secure the payment of the note in question and provided for sale of the same in case of default in the payment of the note and authorized the trustee “to make, execute and deliver to any purchaser or purchasers of said property a good and sufficient deed for such property.” The foregoing provision is followed by the covenant of general warranty of title heretofore quoted. It is well settled in Texas that “when one conveys land by warranty of title, a title subsequently acquired by the grantor passes eo instanti to his warrantee * * * ” and that “this rule applies to mortgagors and mortgagees in like manner as to war-rantors and warrantees.” Galloway v. Moeser, Tex.Civ.App., 82 S.W.2d 1067, point page 1068, for collation of authorities; 29 Tex.Jur. 831, sec. 33.

Error is assigned to the amount of the judgment on the ground that there is a miscalculation in the amount of the recovery (including principal, interest and attorney’s fees), after deducting credits. We have carefully checked the judgment rendered by the trial court and find that it does not exceed the amount provided by the contract.

Complaint is also made to the action of the court, in that it rendered a lump-sum judgment for principal, interest and attorney’s fees, and provided that the entire amount draw 8 per cent interest from date. Where attorney’s fees are for a liquidated amount and are clearly incident to the main debt and so connected with it as to make them a part of the contract, and where such fees are'included in the judgment, the rule is that they shall bear interest at the same rate as the principal sum. See Tsesmelis v. Sinton State Bank, Tex.Com.App., 53 S.W.2d 461, 85 A.L.R. 319.

The court having acquired jurisdiction of the parties and subject matter ■of this litigation during the lifetime of Nellie Bailey Smith, the suit did not abate by reason of her death, and the court properly required her administrator to appear and defend this suit. This question was definitely settled in Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563; Art. 2080, Vernon’s Annotated Civil Statutes; Farmers’ & Merchants’ Nat. Bank v. Jones, Tex.Civ.App., 254 S.W. 251.

We have considered all other assignments raised by appellants and each is overruled.

The judgment of the trial court is affirmed.


author: WALKER, Chief Justice.

text:
    KELLY-SPRINGFIELD TIRE CO. et al. v. WALKER et al.
    No. 3747.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1940.
    Rehearing Denied March 12, 1941.
    H. C. Keen and Geo. A. Weller, both of Beaumont, for appellants.
    Geo. E. Holland, R. E. Masterson, and H. C. Cunningham, all of Beaumont, for appellees.
   WALKER, Chief Justice.

Prior to her death January 2, 1929, Mrs. Jonnie I. Walker and her husband, J. P. Walker, acquired and, for the purposes of this opinion, held as community property two tracts of land in Jefferson County; one tract containing 31.2 acres, and the other tract containing 812.25 acres. Mrs. Walker’s heirs at law were her husband, J. P. Walker, and-her two sons, Homer and D. W. Walker, and her daughter Mrs. Plas-sie Walker Webb, wife of T. S. Webb. Her three children inherited equal moities of their mother’s one-half community interest in the two tracts of land referred to above. On the l'5th day of'January, 1930, after the death of their mother, the children conveyed by warranty deed to their father their interest in these two tracts of land; this deed was never recorded. The son, Homer Walker, died November 18, 1936, leaving his wife, Mrs. Homer Walker, his father, J. P. Walker, his brother, D. W. Walker, and his sister, Mrs. Webb.

On April 25, 1932, in cause No. 37587 on the docket of the District Court of Jefferson County, appellant, Kelly-Springfield Tire'Company, recovered judgment against Homer Walker et al. in a sum in excess of $3,000, which judgment, for the purposes of this opinion, was duly abstracted in Jefferson County, and never became dormant. On the third day of February, 1933, appellant, The Texas National Bank of Beaumont, in cause No. 39468 on the docket of the District Court of Jefferson County, recovered judgment against Homer Walker et al., which, after allowing credits on execution of order of sale, amounted to more than $14,000, and which for the purposes of this opinion, was duly abstracted, and never became dormant.

On the 29th day of September, 1939, appellant, Kelly-Springfield Tire Company, filed this suit in the District Court of Jefferson County against J. P. Walker, the widow of Homer Walker, and his brother and sister, as named above, to foreclose its judgment lien against the one-sixth interest in the two tracts of land referred to above, inherited by Homer Walker from his deceased mother. Appellant, the Texas National Bank, and many others holding abstracted judgments against Homer Walker were made parties defendant. Appellant, the Texas National Bank of Beaumont, answered, pleading its judgment lien and praying for foreclosure as did appellant, Kelly-Springfield Tire Company. The pleadings of the two appellants made an issue of priority between their claims, but in view of the disposition we are making of the case, this issue is immaterial. On trial to the court without a jury, judgment was that the two appellants and the other lien creditors of Homer Walker “take nothing” against J. P. Walker, Mrs. Homer Walker, D. W. Walker and Mrs. Webb, and on J. P. Walker’s cross-action against appellants and the other lien creditors that he recover “the lands and premises, the controversy of this suit.” From the judgment of the lower court only Kelly-Springfield Tire Company and the Texas National Bank prosecuted their appeal to this court.

The judgment of the lower court in favor of J. P. Walker was on the theory that his occupancy of the property in controversy gave appellants notice, at the time they abstracted their judgments, of his unrecorded warranty deed from Homer Walker and his other two children. The following are the controlling facts of J. P. Walker’s occupancy : From the time he and his wife purchased this land as their community property, they were 'in continuous possession of all of it, using, occupying, and enjoying it. They maintained their residence on the tract of 31.2 acres continuously, and had a homestead claim of 168.8 acres in the larger tract. They were living on the smaller tract at the time of Mrs. Walker’s death, and Mr. J. P. Walker continued to live on it after her death, maintaining his home there, and was so living on it at the time appellants abstracted their judgments. There was no change in the nature and character of his occupancy from the time he purchased the property in 1892 up to the time the judgment liens were abstracted. From the time he purchased the 812.25 acres he and his wife farmed it, raising rice on part of it and pasturing part of it; the homestead claim on this tract was inclosed by the same fence with the balance of the tract. Certain, tenant houses occupied by tenants were on that portion of the larger tract, not a part of the homestead claim. The nature of this occupancy continued without change from the time they purchased it in 1892 up until the time these judgments were abstracted. The possession of J. P. Walker and his wife, in person and by tenants, was exclusive of all other claimants from the time they bought it until her death, and his possession so continued until after appellants’ judgments were abstracted. No point is made that the deed from his children to J. P. Walker was not made in good faith and on a valuable consideration.

The facts support the court’s judgment. The occupancy of J. P. Walker was sufficient to give notice to appellants at the time they abstracted their judgments that Homer Walker had transferred his interest in the land to J. P. Walker, and this notice operated against appellants to the same extent as if J. P. Walker had duly recorded his deed from his children. That the land in controversy was deeded jointly to J. P. Walker and his wife Mrs. Jonnie I. Walker gave notice to persons dealing with the land of its community status, and since Mrs. Walker died intestate, all parties dealing with this land were given notice of the interest and estate of Mrs. Walker’s three children, inherited by them from her. Parties dealing with J. P. Walker in relation to this land, finding him in possession, were put on' notice that he was holding the interest of his three children either as their co-tenant or by purchase from them, and required them to make inquiry of his right of possession.

Parties dealing with Homer Walker or his estate, in relation to the 812.25 acres, were visited with notice of his father’s actual possession, and were put on inquiry as to the nature of his exclusive possession. Had this inquiry been made by appellants, they would have discovered that Mr. Walker was in exclusive possession of the 812.25 acres by virtue of the deed to him from his children. Collum v. Sanger Bros., 98 Tex. 162, 82 S.W. 459, 460, is on all fours with the facts of this case as it relates to the 812.25 acres, and affirmatively supports the judgment of the lower court.

The only distinction between the possession of J. P. Walker as it related to the 31.2 acres and the 812.25 acres is the fact that he had the right to the exclusive possession of the 31.2 acres. From a careful study of the Collum case, supra, it does not appear that this distinction is controlling. The clear holding of that case is that the possession of Mr.- J. P. Walker, even of the homestead, put appellants on inquiry as to his right of possession; Chief Justice Gaines said: “We think it a safe and salutary rule to require of a prospective purchaser of land to ascertain whether any other be in occupancy of it; and, if there be such possession, to go to the possessor and ascertain the nature and extent of his claim. Possession is evidence of title, and, it seems to us, that common prudence and common honesty demand this course. If so, the possession should be notice to him; and, if notice to a purchaser, it is notice to a creditor.”

If the distinction,'based on Mr. Walker’s homestead rights, be recognized as of importance, it is made immaterial by the peculiar facts of this case. The 31.2 acres was not the full measure of J. P. Walker’s homestead rights; he had a homestead right of 168.8 acres in the larger tract. He not only exercised exclusive possession of his homestead claim in the larger tract, but also of all that tract. An inquiry as to his right of possession of that portion of the land not constituting his homestead would have given appellants notice of his claim by his deed from his children to their interest in all the land. If on this point there was an issue of fact, the issue was resolved in favor of Mr. Walker by the court’s judgment.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

On motion of appellants, we find that the tract of 31.2 acres on which J. P. Walker resided did not adjoin the larger tract of 812.25 acres. On the larger tract was an inclosure of about 25 acres on which were situated the improvements on the larger tract. The balance of the larger tract was inclosed in one fence and was occupied, held and enjoyed by J. P. Walker for the purpose of growing crops and grazing cattle. ' Appellants ask that we find that J. P. Walker and his children joined in the execution of certain instruments, effecting the land in controversy, subsequent to the deed by Homer Walker to J. P. Walker. These instruments were merely evidentiary on the issues involved; appellants have not requested us to find that they knew of the existence of these instruments before they abstracted their judgments, and we do not so find.

The motions for rehearing are overruled-