author: JOHNSON, Chief Justice.

text:
    HASTINGS v. CHAMPER.
    No. 5544.
    Court of Civil Appeals of Texas. Texarkana.
    April 25, 1940.
    H. A. Leaverton, of Longview, for appellant.
    Lee & Porter, of Longview, for appellee.
   JOHNSON, Chief Justice.

Appellant was plaintiff below and appel-lee was defendant, below, so they will be given the same designation here. Plaintiff instituted this suit in form of trespass to try title against defendant for title and possession of Lot 5, Block 1, Alamo Addition to City of Longview. Defendant’s answer consisted of a general demurrer, general denial, plea of not guilty, and cross action against plaintiff for the sum of $285.50, alleging “that by virtue of said above-mentioned agreement (to exchange city lots) the said cross defendant, Hastings, became bound and obligated and promised to pay said cross plaintiff, Cham-per, the difference of their said equity, to-wit, the sum of $285.50 on demand, and before defendant was entitled to receive possession of the above described Lot No. 5 in Block 1.” Trial was to a jury on special issues. The verdict and judgment were for defendant on her cross-action for $257.-50, and judgment was rendered for plaintiff for title and possession of the lot sued for together with the sum of $10 for the rental value thereof. This appeal is from that part of the judgment awarding defendant the money judgment.

By his seventh proposition plaintiff asserts that the trial court committed reversible error in permitting the introduction, by defendant, of evidence which tended to vary the terms of an unambiguous written contract entered into by plaintiff and defendant, absent the allegations by defendant of fraud, accident or mistake. It appears from the record that plaintiff and defendant traded, certain city lots located in Longview, Texas. Plaintiff owned Lot 18, Block 2 of the Alamo Addition, and defendant owned Lot 4, Block 1, and had a contract to purchase Lot 5, Block 1, .in the same addition. Hereafter the property involved will be referred to by lot number.

Plaintiff had paid on the purchase price of Lot 18 the sum o,f $107.50. Defendant had paid on the purchase price of Lot 5 the sum of $15 and had erected thereon a small dwelling alleged to be worth $320. There was an outstanding indebtedness of $1,250 against Lot 4. On February 16, 1938, defendant executed a deed to Lot 4 in favor of plaintiff and also' assigned to him the contract of purchase covering Lot 5, and, presumably, though not definitely shown by the record, plaintiff either conveyed by deed Lot 18 to defendant or assigned to her his contract to purchase said lot. The consideration expressed in the deed to Lot 4 from defendant to plaintiff is $100 cash, a note for $600 payable in monthly installments of $50 each, and the assumption of the $1,250 outstanding against same. The contract to purchase Lot 5, which was assigned by defendant to plaintiff, recites a consideration of $219, payable $10 cash, and $5 per month. No other consideration is expressed in either of said instruments. No ambiguity in either is claimed or shown. Over the objection of plaintiff the defendant was permitted to testify that she was due an additional consideration for Lot 5 by reason of the difference in value of the equities owned by plaintiff and defendant in their respective lots brought about by the erection of a small dwelling house on Lot 5. Defendant alleged and also testified that plaintiff agreed to pay her the amount of money representing the difference in value -of their .said equities. There is no allegation in defendant’s cross-action of fraud, accident or mistake authorizing the introduction of evidence of any oral contract to change or .alter the terms of either of the written instruments conveying and assigning defendant’s interest in Lots 4 and 5 to plaintiff. In the absence of such allegations it was ■error to permit the testimony complained •of to the effect that there was another and additional consideration for the transfer of said lots. The effect of this testimony was to' add to the writings, theretofore signed and accepted by both parties, and another stipulation with respect to the amount of consideration to be paid for said lots. Self v. King, 28 Tex. 552; McCormick v. Kampmann, 102 Tex. 215, 115 S.W. 24; Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S.W. 184; Jefferson Cotton Oil Co. v. Pridgen & Congleton, Tex.Civ.App., 172 S.W. 739, writ refused; Heldenfels v. School District, Tex.Civ.App., 182 S.W. 386, writ refused. In 22 C.J. p. 1098, Sec. 1459, backed up by universal authority, the rule is stated thus: “The most usual application of the parol evidence rule is with respect to contracts, as to which it is established that in the absence of fraud or mistake parol or extrinsic evidence is not admissible to vary, add-to, modify, or contradict the terms or provisions of the written instrument by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of their engagement, all previous negotiations and agreements with reference to the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing. The rule, however, goes even further than -this, and it has been established that where the instrument is free from ambiguity and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing.”

This proposition is. sustained.

We have examined proposition No. 1, and in our opinion it is without merit and is therefore overruled. The other propositions brought forward are not discussed for the reason that the alleged errors contained therein likely will not occur on another trial.

The judgment of the lower court, in so far as it allows to defendant a money judgment, is reversed and remanded. In all other respects the judgment is affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    HANKAMER v. ROBERTS UNDERTAKING CO. et al.
    No. 3653.
    Court of Civil Appeals of Texas. Beaumont.
    April 19, 1940.
    Rehearing Denied May 1, 1940.
    Grogan & Collins, of Liberty, and Williams, Lee, Sears & 'Kennedy, and W. H. Blades, all of Houston, for appellant.
    Wood, Morrow, Gresham & McCorquo-dale, .of Houston, P. C. Matthews, of Liberty, and A. C. Wood, and Walter. E. Boyd, both of Houston, for appellees. . .
   WALKER, Chief Justice.

On the 6th day of September, 1938,- about 2 P. M., appellant, Ira A..Hanlcamer, was injured and his wife was killed in a collision- on' the edge of, but hot within, the town of Devers, in Liberty county, betw-eeh the Ford pickup truck he was driving and an ambulance, owned and operated by ap-pellee Roberts Undertaking Company,- and driven at the time of the collision by ap-pellee J. M. Sharp. This suit was brought by appellant against appellees for his damages proximately resulting from the collision. Judgment was for appellees on the Verdict of the jury, finding that the collision was an “unavoidable accident” — the only question answered by the jury- of the many question's submitted by ■ the court’s charge. From the judgment entered against him on the verdict of the jury, appellant has prosecuted his appeal to this court.

Appellant insists that the evidence was insufficient to raise the issue of unavoidable accident. On this issue, the evidence was as follows (Q. and A. reduced to narrative) :

Mr. J. W. Metcalf testified as follows: “The accident happened on the west side of Devers on the Houston-Beaumont Highway, which, at that point, runs east and west. The accident happened on the outskirts, the edge of the town.”

Appellant, Ira A. Hankamer, testified:

“This is how the accident occurred. I was driving into Devers from Anahuac, on the Anahuac road. As I got to the junction of the road — the junction of the Ana-huac road and the Houston-Beaumont road it started to rain. It was raining pretty hard and I pulled off the side of the road; wouldn’t go on Highway 90 (Houston-Beaumont highway) because it rained so hard, and the rain hit me in the face. I was driving a Ford pickup. When I left the intersection of the two roads, I drove on the Houston-Beaumont road and stopped to wait for the rain to slack up— I drove down the shoulder of the road. I don’t know exactly how far I drove down the shoulder of the road, say seventy-five or a hundred feet. When I first came to the main highway I didn’t attempt to drive on it; it was raining so hard I decided to wait until the rain slacked up, and then attempt it; it was raining so hard I was afraid I might get in the way of some vehicle. Later the rain stopped, and then I attempted to get on the Houston-Beaumont road. I was driving east in the direction of the highway. I got my front wheels on the highway and my hind wheels struck it —couldn’t hop up and I stopped and waited until the rain would slack up a little bit. In fact, I stopped and I was hit just about five or six seconds after I hit the highway, I don’t think I had gotten either of the back wheels on the highway. It started to rain just about the time I got to the intersection of the two roads; it had not been raining on me before that time. After I reached the highway I got off on the shoulder and sat there and it rained about twenty minutes pretty hard. From the time I stopped my car up till the time of the accident I never did stop my engine. When the rain slacked, I went to go on the highway. I started up my motor and tried to go on to Highway No. 90. At the time I started to go on to Highway No. 90 the rain had slacked up quite a bit; you could see pretty plain all the way around. The rain, the first squall, hit me with an awful hard downpour. I saw the ambulance as soon as I got on Highway No. 90; I saw it coming about a hundred feet down, the road. When I saw it it was straddling the black line; the black line in the middle of the concrete on Highway No. 90, a little more on the south side of the black line than on the north when I saw it. The accident happened so quick you couldn’t — the ambulance looked to me like it didn’t change its course; it happened so quick you couldn’t tell; it came up and struck my car. At that time the front part of my car was on the concrete, but I don’t think either of the back wheels was on the concrete. I wasn’t trying to get on the concrete. No, sir; when I rolled up there and saw I couldn’t make it, of course, I saw the ambulance coming and before you could have time to back up or do anything he hit me. I was kind of stuck there, stopped there. I stopped because I was afraid I might jump over the black line. I saw the ambulance about the time I stopped. Only one of my wheels could have been on the concrete quite a while. My wheels didn’t get stuck as soon as I hit the pavement; no, sir, I think I slid a little ways, but not far; I think about the length of the truck trying to go up. When I seen I wasn’t going to make it, I threw on my brakes and quit trying. My right front wheel was about one foot off the edge of the pavement, and I was going up the concrete about a car’s length that way. My left wheel was up against the pavement, and threw my right wheel out further from the pavement.
“Q. That is what I meant to say, whether I said it or not, Mr. Hankamer. And what is your recollection with reference to whether or not you did or did not move your truck from the time you saw this ambulance coming until the collision or impact? A. Well, it is hard to tell, but it was not but a very short time.
“Q. Well, I say, what is your recollection as to whether you did or did not move your truck? A. I couldn’t move it very well; I was stuck.
“Q. Well, couldn’t you have turned it to the right and thrown it back over the right shoulder where you said you had been? A. I might have got it back there, but I didn’t try it then because I didn’t have time.
“Q. You didn’t have time? A. No, sir.
“Q. And these V-8’s have a good deal of power don’t they? A. Yes, sir. My car was in gear at the time of the collision. I had my foot on the clutch and brake and the motor was running. The collision occurred about fifty or seventy-five yards maybe a hundred feet from the intersection of the two roads down toward Devers.”
Appellee Sharp testified: “This is how the accident happened. Well, as I saw the car, it looked to me like it was making a turn, coming off of a side road onto the highway. As I kept coming, it looked like it had two wheels on the highway and two off the highway. The two left hand wheels were on the highway; the left hand front wheel and the left hand back wheel; making a sloping turn coming on; just as I got, well, within ten feet of it it made a lunge ou£ on the highway and ran right into me. It made a lunge and came on my side of the road when I was within about twenty feet of it, and the cars came together. When the car lunged towards me, I didn’t have time to do much of anything; I think I tried to dodge him by turning to the left; at that time he was headed out across the road. Yes, sir; he was coming across the road into me and I thought I could cut back of him and he would go on across the road and I would miss him, and I don’t know whether I turned my car or not. When I was within about twenty feet of him it looked like he tried to get all of his wheels up on the road and he got around and his back wheels caught and it just jumped across the road. He turned his car to the left and north trying to get on the road. The truck had started north across the road at the time the ambulance struck it; the truck had passed over the center line.”
Mr. Lowell Smith testified: “When I drove up right after the accident this boy (referring to appellee Sharp) said, ‘Take me to the doctor and get help. Did you see him dart in front of me ?’ ”
Mr. Ray Baldwin testified: “When I got almost up on him (referring to appellee Sharp), the first thing he said to me, I believe he said, ‘Did you see that fellow run into me ?’ ”
Mr. Lowe testified: “Mr. Sharp called me from Devers; told me he had a wreck, a pickup truck ran out on the road ahead of him, and he wanted me to go down and check the wreck.”

The concrete, at the point of collision, was about four or five inches above the shoulder of the road.

The issue of “unavoidable accident” was raised by the evidence on two theories of the law.

First: Under the evidence the jury could have found that appellant had not committed any act of negligence proximately causing the collision, and the same jury could have found that appellee Sharp, the driver of the ambulance, had not committed any act of negligence proximately causing the collision. The theory of our law, as now developed, seems to be that “unavoidable accident” is in every collision case where, on the evidence, the jury can return a verdict freeing both parties to the collision of negligence proximately causing the accident. We believe that Judge Funderburk, in his note to Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125, 128, states the correct proposition: “In all cases wherein there are controverted issues of fact, of defendant’s negligence as proximate cause of an injury and of plaintiff’s negligence as proximate cause of the injury, the issue of unavoidable accident also necessarily arises as an issue of fact.”

Second: Appellant contends that unavoidable accident is not in a case, unless something intervenes in addition to the negligence of the two parties to the collision. If that be the law, the evidence raised that issue. The sudden rain, the fact that appellant’s car was stalled, the elevation of the concrete above the shoulder of the road, the sudden gripping of the concrete by the rear wheel of appellant’s car, his loss of control of his car, the fact that, without negligence on his part, his car “jumped” ahead of the ambulance (all issues raised by the evidence) raised the issue that the accident resulted proximately from facts and circumstances, independent of any negligence on the part of either party.

Appellant’s authorities are not in point. In Dallas Ry. Co. v. Darden, 38 S.W.2d 777, 779, the Commission of Appeals said: “There was no support in the evidence for the conclusion that the collision occurred without fault of either party.” In Red Arrow Freight Lines Inc. v. Smith and Wife, Tex.Civ.App., 93 S.W.2d 495, 499, the court said: “While the driver of the truck had the right, under ordinary .circumstances, to drive on' the highway at the rate of 25 miles per hour, we think, under the undisputed circumstances, there could be no question but that he should have checked up his speed to a much less speed than he said he was going at the time of the accident. We think the accident should not be classed as unavoidable.” In Younger Bros. v. Power, Tex.Civ.App., 118 S.W.2d 954, 958, the court said: “Each driver as originally found, and as is now confirmed from a re-examination of the whole body of the testimony, claimed that he was o'n the right-hand side, and that the other was on the left-hand side, and stuck to it throughout the trial before the jury, thus raising that as the clear-cut and controlling fact-issue in the case; wherefore, such being the uncontroverted facts asserted on both sides, there could not at the same time, in utter contradiction on the only evidence there was, have been presented ‘a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.’ ” All authorities cited by appellant, as we construe them, - on their facts show, as a matter of law, that the collision in issue resulted from the negligence of one or the other of the parties. In the case at bar the evidence clearly raised the issue that the collision proxi-fnately resulted from causes not chargeable to the negligence of eiihei party.

Appellees were not “estopped from contending” that the collision was the result of an unavoidable accident, by reason of the fact that they filed a cross action against appellant alleging that the collision proximately -resulted from specific acts of negligence committed by him.

The following argument by appel-lees’ counsel did not constitute harmful error: “Now, gentlemen, my time has got over, but I want to say this to you. I can’t help but believe while one of you gentlemen was coming to this court house today, if you had been driving on a road like that, a concrete road, and you had an experience where some one, not Mr. Hankamer, ran across to your side of the road, as Sharp, and as we contend Mr. Hankamer did in this case, and you jumped out and ran to the telephone, although crippled, although half ‘out’, and called the officers to come and make an investigation as to how this thing happened, and the officer, Mr. Pat Lowe, came on the ground—I am talking about you, now—and the sheriff had got out there and made the investigation that Pat Lowe. made; and the highway officer appeared on the scene, as the proof shows he appeared in this case, and investigated your case, and some real witnesses some five hundred (500) feet away, raining hard, testified, as these witnesses, did in this case; and, too, when the officers got out there, one of you gentlemen—now, the cars placed just as the cars placed in this accident—and the jury would have gone out and. held you responsible for it—I mean, that is Sharp, now. That actually happened as applied to you—all you know, you was on your side of the road and you furnished these facts—you would almost lose confidence with the jury system. If it was a fact—now.” In his argument, counsel stayed within the record, and what he said to the jury did not constitute an appeal to their prejudice, passion, or sympathy. The argument has support in the following áu-thorities: Rio Grande, E. P. & S. F. R. Co. v. Dupree, Tex.Com.App., 55 S W.2d 522, 526; T. & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; T. & P. Ry. Co. v. Short, Tex.Civ.App. 62 S.W.2d 995; Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416; Southwestern Gas & Elec. Co. v. Hutchins, Tex.Civ.App. 68 S.W.2d 1085; A. B. C. Storage & Moving Co., Inc., v. Herron, Tex.Civ.App., 138 S.W.2d 211.

The case was submitted to the jury on forty special issues. Certain of these issues submitted the negligence plead by appellant against appellees, and certain other issues submitted the contributory negligence plead by appellees against appellant. One question submitted the issue of unavoidable accident, which was the only issue answered by the jury. Appellant contends that, since the jury answered only one question, the court committed error in receiving the verdict without requiring the jury to answer the other issues. The facts deny that contention. After the jury retired to consider its verdict it sent to the trial judge the following communication: “Do we have to answer all issues in this case ?” This communication was signed “F. S. Spear, Foreman.” Immediately under the signature of the foreman was written : “We have reach a verdict on one of the issues.” When this communication was received by the trial judge, two of appellant’s counsel were present and read it; no one was present representing appellees.

Judge Coe, the trial judge, testified on motion for new trial as follows:

“Well, it was sometime along, it must have been nearly ten o’clock at night. The Sheriff informed me the jury wanted to communicate with the Court, or he either brought to me a communication, I don’t recollect just which. This is the communication they brought to me from the jury. (Exhibiting a picture.)
“I was in the District Clerk’s office at the time, and Mr. Grogan and Mr. Collins were there, and I believe Earney Picket, but I am not sure whether he was there or not. We three were in there. I simply remarked to Mr. Grogan that my guess, after reading this note (indicating paper in hand) that the jury had found it to be an unavoidable accident, and asked him what he thought about it and he said, well, it looked like maybe that was about what happened. Of course, none of us knew, and I remarked, well, if they have found it was an unavoidable accident it looked like that would be a verdict, arid he said, it looks like that would be the end of the row, or something like that. That it would blow up the lawsuit. So I told the Sheriff to tell the jury to bring into Court the answers they had agreed upon, and I would examine it and see whether or not it was a verdict, and they brought it in.
“It was passed to me and I examined it and exhibited it to Mr. Grogan and Mr. Collins — both were in there, I think. I said boys, it looks like a verdict to me, what do you think about it ? I don’t know what was said (indicating they agreed with me) and I received it.
“Q. (By Mr. Wood) Mr. Grogan and Mr. Collins of counsel for the plaintiff were there. A. Yes, sir.
“Q. There was no one there representing the defendants? A. I tried to locate Mr. Matthews, but the Sheriff reported he could not find him.
“Q. Both of those attorneys took part in the trial of the case? A. Yes, sir.
“Q. Both were here throughout the trial? A. Yes, sir.
“Mr. Wood: That is all.
“Cross-examination
“Questions by Mr. Blades:
“Q. Read the statement into the record, please sir. A. (Reading from paper) ‘Do we have to answer all issues in this case?’ Signed ‘F. S. Spear, foreman.’ And immediately 'under the signature, ‘We have reach a verdict on one of the issues.’

Mr. Horace Grogan, one of the attorneys for appellant, on motion for new trial testified as follows:

“I will agree, with the Court, Judge Coe, what he said as to what happened when the note was delivered in the District Clerk’s office, and it was read. In addition thereto I asked the Court the question, if he thought the jury had found negligence on the part of either one of the parties, and then found unavoidable accident, if he thought it would be a verdict, and he said he didn’t think he could enter a judgment on the verdict of unavoidable accident if either one of them was given by the jury in their answer. He then told Mr. Hol-brook to go and get the jury and bring them in and he would look at the verdict and, as I recall it, the verdict of the jury was handed to the Court. I don’t know whether by the Clerk, or by whom, but it was put in his hand and he looked at it, and the Court remarked, this looks like a verdict, I can receive this verdict, as I recall it. I was present at the time and Mr. Collins was present at the time. I don’t know whether or not I saw the verdict, but I heard the verdict' read. And I did not make any objection to the Court receiving the verdict, nor did I question same in any way.
“Mr. Wood: You knew, Mr. Grogan, what the verdict was, whether or not you actually looked at it or not? A. Yes, sir.
“Q. I asked if you knew? A. No, I couldn’t have sworn to it, but I had an idea what it was.
“Q. Did the Court when he had it there hand it to you or not? Did he tell you what the report was ? A. The Court read the answer.
“Q. I am talking about before it was read, Mr. Grogan? A. Before the answer was read?
“Q. Yes, sir; to the jury, before the Clerk bead the answer out. A. I don’t know the Clerk was there. I wouldn’t swear the Clerk was here.
“Q. Before'the verdict was read aloud you knew what that verdict was, either by reading the answer of the jury, or by what the Court said? A. By what the Court said, yes.
“Q. You knew they had found it was an unavoidable accident? A. Yes, sir; that is correct.
“Q. And you say you made no request to the Court to send them back and have them answer the rest of the questions? A. No, sir; I did not.
“Q. You thought it was a verdict? A. I certainly did.”

On the statements made by the judge and Mr. Grogan, clearly appellant waived his right to insist that the jury answer the other questions submitted by the charge.

Appellees submit six other counter propositions in support of the court’s ruling in receiving the verdict, which we do not discuss though wé believe they are sound.

The evidence was conflicting on the issue that the jury considered “who would have to pay the court costs in the case.” In overruling the motion for a new trial, the court found that issue in favor of ap-pellees.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly só ordered.

Affirmed.


author: BLAIR, Justice.

text:
    FIRST COLEMAN NAT. BANK OF COLEMAN v. VAUGHAN et al.
    No. 8858.
    Court of Civil Appeals of Texas. Austin.
    April 10, 1940.
    On Rehearing April 24, 1940.
    'E. M. Critz, of Coleman, for appellant.
    Dibrell & Snodgrass and L. M. Crump, all of Coleman, for appellees.
   BLAIR, Justice.

This litigation arose as follows:

L. C. Vaughan and his wife, Izabel Vaughan acquired 253 acres of land which they used and occupied as their homestead from August 29, 1905, until the death of Mrs. Vaughan, July 16, 1917. There were seven children of this marriage, all of whom were adults except Bettie Vaughan, who, at the time of the death of the mother, was 17 years of age, and was unmarried. After the death of Mrs. Vaughan, the husband, L. C. Vaughan, and the unmarried daughter continued to occupy the 253 acres of land as homestead until the death of L. C. Vaughan, April 24, 1935. After the death of L. C. Vaughan, appellant, First Coleman National Bank of Coleman, a general creditor of L. C. Vaughan, applied for an administration upon his estate, and was appointed and qualified as administrator, and as such administrator filed and allowed the claim of the bank for $1,533.38. Other claims of general creditors were also filed and approved, all being approved as fourth class claims. The estate was insolvent, its only property being the 253 acres of land, which was incumbered with a valid lien not here involved. On June 13, 1938, L. Vaughan, a son of the deceased, was appointed administrator in lieu of the appellant bjank. On ' July 2, 1938, Bettie Vaughan, the unmarried daughter, filed her application in the county court to have a part of the 253 acres of land set aside to her as her homestead; and on July 30, 1938, the county court granted her application in part by setting aside to her the one-half interest of the deceased father in the 253 acres of land, and decreeing that same was the homestead, of the father and the unmarried daughter at the time of his death; and that same was exempt from all claims of general creditors; but not as to taxes and another valid lien, which are not here involved.

From this judgment appellant bank appealed to the district court and on October 1, 1938, the district court rendered judgment modifying the judgment of the county court by setting aside to Bettie Vaughan as exempt homestead property one-half of 200 acres of the 253-acre tract, subjecting a one-half interest in the excess 53 acres to the general claims of creditors; and decreeing that the 200-acre homestead was exempt from the debts or claims of all general creditors, and providing that the 200-acre homestead, if not heretofore designated, should be designated “according to established rules of law”; hence this appeal.

Appellant states that “the principal question presented * * * is whether * * * a homestead exemption as against creditors of an insolvent estate is preserved and continued after the. death of the father and husband who died after the death of the mother and wife, leaving seven adult children, one of whom was an adult unmarried daughter.”

Under the facts of the instant case, we regard the question presented as having been definitely settled against the contention of appellant by several decisions of the Supreme Court, which hold that under the pertinent provisions of Art. 16, Sec. 52, Tex.Const., Vernon’s Ann.St., and Arts. 3314, 3485, 3494, 3499, 3500, 3832, and 3833, R.S. 1925, where both parents die leaving an .insolvent estate, and a homestead, and at 'the time of the last parent’s death an unmarried adult daughter is residing on the homestead with the last parent as a member of the family, the homestead is not subject to the debts of the general creditors of the last surviving parent; and that such homestead, on the death of the last parent, vests in his or her heirs, free from debts of general creditors. Givens v. Hudson, 64 Tex. 471; Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 66 A.L.R. 916; Ward v. Hinkle, 117 Tex. 566, 8 S.W.2d 641; and Milner v. McDaniel, 120 Tex. 160, 36 S.W.2d 992, 993; wherein the court say:

“It has often been determined by the Supreme Court of this state that, upon the death of an owner using and occupying property as a homestead, when there remains a constituent member of the family (wife, husband, minor child, or unmarried daughter), the title passes to all of the heirs and is subject only to the right of use by those entitled to occupy it as a homestead ; the estate thus taken by the heirs to the property is unburdened by the claims of creditors of the community estate. Childers v. Henderson, 76 Tex. 664, 13 S.W. 481; Cameron v. Morris, 83 Tex. 14, 18 S.W. 422; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S.W. 485; Lacy v. Lockett, 82 Tex. 190, 17 S.W. 916, 918; Roots v. Robertson, 93 Tex. 365, 55 S.W. 308.
*****
“The foregoing authorities firmly establish the principle that a homestead cannot be subjected to the payment of community debts when there remains any constituent member of a family, as designated by the Constitution and statutes of this state, to take and occupy it as such. Under such circumstances it descends and vests in all the heirs free from community debts, even though some of the heirs may be adults and not entitled to any homestead interest in the property.”

In determining the question that the interest of the adult children in the homestead, other than the unmarried daughter, should be exempt, the court referred to the dissenting opinion of Chief Justice Stayton in Childers v. Henderson, 76 Tex. 664, 13 S.W. 481, as follows: “In the above case Chief Justice Stayton dissented, stating that it seemed contrary to the spirit as well as the letter of the law to exempt the adult heirs’ portion of the homestead from sale for the ancestor’s debts because the interest of the unmarried daughter was not subject to sale. The doctrine announced by the majority, however, has been continuously followed and reaffirmed in numerous cases, so that it may now be said to be the settled law of this state.”

Having concluded that the homestead vested in the children free of the debts of general creditors, where an unmarried daughter remains as the constituent member of the family, the trial court decreed that a 200-acre homestead out of the 253-acre community tract should vest in all the children free of debts of general creditors, and that the one-half interest of the father in the 53 acres of excess be subjected to the 'debts of general creditors. Manifestly, the District Court fixed a homestead on 200 acres of the community estate of 253 acres, but instructed the County or Probate Court to ascertain if a specific 200 acres had been actually designated as the homestead of the father during his lifetime; and if .not, then to designate a homestead on 200 acres of the 253 acres “according to established rules of law.”

By cross-assignment of error' appellees contend that this judgment should be modified so as to allow the homestead to be established on the entire undivided one-half interest of the father in the 253-acre community tract, plus enough of the mother’s interest to make the 200 acres. The judgment should be so modified, if the facts show that the homestead had not been established during the lifetime of the father on a specific 200 acres of the 253-acre community tract. This is in accord with the rule stated in McAlister v. Farley, 39 Tex. 552, as follows:

* * if all the lands are community property, the children are entitled to their mother’s interest in it; if the homestead was fixed upon community property, they hpld it as fixed and established by their father. In other words, the homestead. in that case will be taken out of the community estate, and the remainder will be partitioned.
“But if there was no homestead fixed and established during the lifetime of the father, then under the act of August 15, 1870, the children will be entitled to a homestead of two hundred acres out of the individual share of their father.”

The Act of August 15, 1870 (Vol. 6, Gammel’s Laws, 301), is in substance now Art. 3499, R.S. 1925, which provides that the homestead is not liable for debts, except those enumerated. As thus modified, the judgment of the trial court is affirmed. That is, if there was no homesteád actually fixed and established on a specific 200 acres of the 253 acre community tract, then the children would be entitled to a homestead free of debts of general creditors, “out of the individual share of their father,” plus enough out of the community interest of the mother to make 200 acres, which vested in the children free of the debts of general creditors, under the rule that a homestead cannot be subjected to the payment of general creditors when there remains any constituent member of a family. Milner v. McDaniel, supra. In consequence, the County or Probate Court should ascertain the facts as to actual' designation of the homestead, and set it aside free of debts of general creditors, in accordance with the rule stated herein.

Modified and affirmed.

On Motions for Rehearing.

By appellees’ motion for rehearing it is stated that the only property subject to the homestead exemption is the undivided one-half interest of L. C. Vaughan, deceased, in the 253-acre tract of land in question; and that by their pleadings they asked that only such one-half undivided interest be set aside as exempt homestead property. This claim is based upon the fact that, after the death of Mrs. Vaughan, the children conveyed. their one-half interest, inherited from the mother, in the 253 acres of land to their father, who after obtaining a loan on the 253-acre tract reconveyed the undivided one-half interest to his children. We were mistaken in the view that the parties regarded these conveyances as simulated and that the homestead remained in 200 acres of the 253 acres of land described. Appellees did not so regard the conveyances, and considered that the only property belonging to L. C. Vaughan at the time of his death was the one-half undivided interest in the 253-acre tract. Accordingly, we reform and affirm the judgment of the District Court so as to unconditionally set aside as exempt homestead property, not subject to the debt of appellant, the undivided one-half interest owned by L. C. Vaughan at the time of his death in the 253 acres of land described in the judgment of the District Court, and as so reformed the judgment of the trial court is affirmed.

The motion of appellees for a rehearing is granted as above stated; and the motion of appellant for a rehearing is overruled.

Appellees’ motion granted.

Appellant’s motion overruled.


author: STOKES, Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. HERRIAGE.
    No. 5121.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1940.
    Peyton B. Randolph, of Plainview, and Cantey, Hanger, McMahon, McKnight & Johnson and James C. Wilson, Jr., all of Fort Worth, for appellant.
    Webb & Webb, of Sherman, for appellee.
   STOKES, Justice.

This suit was filed by appellee, T. H. Her-riage, against appellant, Hartford Accident & Indemnity Company, to recover compensation under the Workmen’s Compensation Law of this State. Art. 8306 et seq., R.C.S. 1925. The record shows that appellee was employed by West Texas Cotton Oil Company at Littlefield, in Lamb County, and appellant was the compensation insurance carrier. No question is raised concerning the injuries complained of by appellee nor his right to recover some amount therefor. The case was submitted to a jury and upon their answers to the special issues submitted to them, judgment was rendered by the trial court in favor of appellee for an amount aggregating $354.

In addition to allegations concerning his employment, injury and the liability of appellant under its policy of insurance, appel-lee alleged that he was a poor man and the head of a family; that he had no income except through his labor, and no property or home; that he had agreed with his attorneys to pay them one-third of the amount which he may recover; that he was in debt, and that his compensation of 60% of his average weekly wage would be so small, especially after deducting the amount which he had agreed to pay his attorneys, that it would be insufficient to support him and his family. He alleged that by virtue of his necessitous circumstances and the inadequacy of the payments to meet his necessities, he was entitled to have his weekly payments increased over and above the amount provided by law in ordinary cases and the number of weeks during which his compensation should be paid correspondingly decreased as provided by Sec. 15a of Art. 8306, R.C.S.1925.

Under special issues Nos. 49, SO and 51 the court submitted to the jury the questions of whether or not the weekly compensation, if any, to be paid appellee was inadequate to meet his necessities; whether or not the weekly payments should be increased, and the amount of such increase, if any. In answer to these special issues the jury found that the amount of the weekly payments would be inadequate; that they should be increased and the amount of such increase should be $5 per week.

Appellant urged special exceptions to the allegations of appellee concerning his necessitous circumstances and the matter of accelerated installments of his compensation. It also objected to the testimony concerning the same and to the special issues submitted by the court in reference thereto. These exceptions and objections were overruled by the court and the rulings of the court on these matters constitute the subject matter of this appeal.

The controlling question in the case is whether or not, under the provisions of Sec. 15a, Art. 8306, the court, upon a trial' de novo of a compensation case, is authorized to determine the question of accelerated weekly payments of compensation. The section of the statute provides, substantially, that in cases where the compensation is payable weekly and it appears to the Industrial Accident Board that the “amount of compensation being paid” is inadequate to meet the necessities of the employee or beneficiary, the board shall have power to increase the same by. correspondingly decreasing the number of weeks for which the same is to be paid. It is provided, however, that in no case shall the amount to which the payments are increased exceed the amount of the average weekly wages upon which the compensation is based. Appellant contends that the statute, Sec. 15a of Art. 8306, contemplates only a case wherein the compensation has already been fixed either by the board or by the court upon a trial de novo and that the court does not have authority to accelerate the weekly payments of compensation nor even to consider that matter upon an original trial of a compensation case. It contends further that the Industrial Accident Board and not the court has jurisdiction or authority to pass upon the matter of accelerating the weekly payments and that, therefore, the court erred in overruling its special exceptions to appellee’s allegations concerning the matter of accelerated payments and in overruling its objections to appellee’s testimony concerning the same and its objections to the special issues in which the question was submitted to the jury.

The section of the article mentioned provides that where it appears to the board that the amount of compensation “being paid” is inadequate to meet the necessities of the employee, the board shall have the power to increase the amount of compensation by correspondingly decreasing the number of weeks for which the same is to be paid. In view of the phrase “amount of. compensation being paid”, if we consider the- provision of that section alone, without reference to other provisions of the act, and construe literally its phraseology, the conclusion contended for by appellant would probably be the logical one. But it is the policy of the law, and has many times been so expressed by the courts, that the compensation law must be construed as a whole, and that it should receive a broad and liberal construction so as to effectuate its intent and purpose. Vestal v. Texas Employers’ Ins. Co., Tex.Com.App., 285 S.W. 1041; Texas Employers Ins. Ass’n. v. Moreno, Tex.Civ.App., 260 S.W. 283. Section 15, which immediately precedes Sec. 15a, makes provision for payment of the compensation in a lump sum, either by agreement of the parties with the approval of the Industrial Accident Board, or by order of the board in cases where manifest hardship and injustice would otherwise result. The power of the board to order the redemption of the compensation liability by the payment of a lump sum is confined by the provision of that section, however, to cases where death or total permanent incapacity results. ■ Unless a case comes within that category, the board does not have authority to compel payment of the compensation in a lump sum. In other words, neither the Industrial Accident Board nor the court has the power to enforce a lump sum settlement in a case such as the instant case where the injury did not result in death or total permanent incapacity. It was no doubt the purpose of the law makers when they enacted Sec. 15a to provide for some'similar relief in cases where death or permanent incapacity did not result. Instead of allowing a complete lump sum settlement in such cases, it was provided that in necessitous cases the weekly payments may he increased by correspondingly decreasing the number of weeks for which the same is to be paid. It is evident that they had in mind the same character of relief and their purpose was to provide ameliorating conditions in cases where necessitous circumstances were shown and the amount of compensation provided by the law should be inadequate to meet the necessities of the employee or beneficiary.

There is no doubt that the question of lump sum settlement vel non is a proper one to be considered by the board or the court upon a trial de novo of an original compensation case and we conceive no reason why the law .makers would have made a distinction between the question of a lump sum settlement in a death or permanent incapacity case and an accelerated weekly payment provision in a case of temporary or partial incapacity. The relief provided for both is of the same nature; the only difference being the character of cases to which each applies. We think, therefore, that the slight difference in the language of the two sections should not be so construed as to require wholly different and much more complicated procedure in the latter cases from that which is provided in the former. In our opinion, when a case falling within the provisions of Sec. 15a is appealed from the Industrial Accident Board and jurisdiction thereof is acquired by the court for trial de novo, the court acquires over it the same jurisdiction as that which it acquires over a case involving death or permanent incapacity when it is appealed for trial de novo in the manner provided by the law.

It has been held in many cases that upon the perfecting of an appeal from the ruling of the Industrial Accident Board, which is done by giving notice and filing suit within the time prescribed by the statute, the court acquires jurisdiction over the case and the board loses all control over the matters in litigation. The board has no jurisdiction thereafter to exercise control over the case. Vestal v. Texas Employers Ins. Ass’n., supra; Millers’ Indemnity Underwriters v. Hayes, Tex.Com.App., 240 S.W. 904. The matter of whether or not a lump sum settlement should be awarded under the provisions of Sec. 15, Art. 8306, presents a question of fact to be passed upon by the court when the case is before the court for trial de novo, or by the jury when a jury is empaneled, and we think the purpose and intent of the law is the same in cases falling under the provisions of Sec. 15a of that article. National Indemnity Underwriters v. Cherry, Tex.Civ.App., 110 S.W. 115; Consolidated Underwriters v. Saxon, Tex.Com.App., 265 S.W. 143; Gulf Casualty Co. v. Garner, Tex.Civ.App., 48 S.W.2d 746.

While, as far as we know, the authority of the courts to pass upon the question of accelerated weekly payments has not hitherto been directly challenged on account of the wording of the statute, as it is in this case, our courts seem generally to have, assumed that such an issue is a proper one for decision of the courts upon a trial de novo. The Court of Civil Appeals of the Sixth District has held that under a prayer for general relief the court was authorized to increase the compensation by decreasing the number of weeks, and the Supreme Court denied a writ of error. Western Indemnity Co. v. Milam, Tex.Civ.App., 230 S.W. 825. See also Carter et al. v. Travelers Ins. Co., 132 Tex. 288, 120 S.W. 581.

Appellant contends that the allegations, the evidence, and the special issues submitted to the jury concerning the necessitous circumstances of appellee and his prayer for accelerated weekly payments were in their nature prejudicial, highly inflammatory and calculated to excite the' sympathy of the jury on behalf of appel-lee. For that reason, it suggests, the responsibility and duty of 'passing upon the question of accelerating the weekly payments was placed exclusively within the authority of the Industrial Accident Board. We cannot accede to this contention. The right to have the weekly payments increased in a proper case is given to claimants of compensation by the provisions of the law. They are made to depend upon questions of fact and, although such questions may be of such a nature as to excite more or less sympathy on the part of any normal human being, they cannot be said to be such as would justify a denial of the constitutional right of trial by jury. They are of éxactly the same character as the conditions provided by the law which must be shown as a basis for an order or judgment compelling the insurance company to redeem its'liability by the-payment of the compensation in a lump sum in death and total permanent disability cases, and there can be no question that, under the statute, in those cases the question of lump sum settlement is one for the jury to decide in cases where a jury is empaneled. Nat’l. Indemnity Underwriters v. Cherry, supra, and cases there cited; Lumberman’s Reciprocal Ass’n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402.

We have carefully examined all of the assignments of error and propositions urged by appellant and, in our opinion, no error is revealed. The judgment of the. court below will, therefore, be affirmed.


author: JACKSON, Chief Justice.

text:
    STANLEY et al. v. STANLEY.
    No. 5122.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1940.

      Wilson, Randal & .'Kilpatrick, of Lubbock, for appellants.
    Herbert C. Martin and E. A. Bills, both of Littlefield, for appellee.
   JACKSON, Chief Justice.

This is an action in trespass to try title instituted by appellee, L. A. Stanley, against the appellants, Mrs. Mattie Stanley, Jimmie Lee, R. L., John and Frances Stanley, to cancel two deeds and recover certain town lots in Memphis, Texas, and certain land in Lamb County, Texas.

In his petition, in addition to the required allegations in trespass to try title, .appellee pleaded that the appellants were, claiming Lots 7, 8, 9 and 10 in Block No. 8 of the Durham Addition to the town of Memphis under a deed executed by him to J. M. Stanley August 31, 1935; that they were claiming the land in Lamb County, the North Half of Labor No. 7 in League No. 659, by deed from him to J. M. Stanley dated September 12, 1935; that .if he executed such deeds they were void ' because signed and acknowledged by him while he was insane and of un-’ sound mind; that the land if deeded by him was conveyed to J. M. ’ Stánley to be held by him in trust for appellee and to be reconveyed to him by J. M. Stanley •on request. ■ He also pleaded failure óf consideration, said he had regained his mental faculties, was of sound mind and entitled to maintain the suit. He alleged that Jimmie Lee, John and Frances Stanley .are minors and asked the court to appoint a guardian ad litem to represent them. He ' sought to recover the title to the lots in Memphis, the land in Lamb County, to cancel the deeds to J. M. Stanley under which appellants claim title and to quiet his title. ■

The court appointed J. O. Fitzjarrald and Jack Randal to represent' the minors.

The appellants, Mrs. . Mattie Stanley urged a general demurrer, and the children, who were the heirs of deceased, also demurred to the .petition. .

The appellants pleaded general denial, plea of not guilty and alleged that appellee, L. A. Stanley, conveyed the' property to J. M. Stanley, now deceased, and at the time L. A. Stanley was of sound mind; that Mattie Stanley is the surviving wife of J. M. Stanley, deceased, and the other appellants; Jimmie Lee, R. L., John and Frances, are the children of the deceased and Mattie Stanley; that the deeds were made' for a valuable consideration and conveyed the lots and land to J. M. Stanley and at his death áppellants became the owners thereof.

In response- to special issues submitted the jury found, in effect, that the appellee, L. A. Stanley, was not of unsound mind on August 31, 1935, when he conveyed the lots in Memphis to J. M. Stanley and not of unsound mind on September 12, 1935, when he conveyed the half labor of land in Lamb County to J. M. Stanley; that at the time appellee conveyed the lots in Memphis and the land in Lamb County to J. M. Stanley it was agreed and understood between them that J. M. Stanley would hold said property in trust for the appellee. At the request of the appellee the jury found that he received a consideration for the deeds in question.

On these findings judgment was rendered that the deeds be cancelled arid appellee have and recover the lots in Meriiphis and the half labor of' land in Lamb County, and the judgment is before us for review.

The appellants assail.as error the action of the court in overruling the demurrers' because the facts stated in appellee’s petition showed that J.' M. Stanley was dead at the time the suit was brought rind appellants were his heirs, but "failed to allege there was no administration on' the estate of the deceased and none was necessary or that four years had elapsed since the death of the deceased. .They also ■ challenge • the -action of the court in refusing to direct a verdict in their behalf since there is no proof in the record that no administration was pending and none necessary but proof did show that the time had not elapsed for such administration.

The appellee’s petition did not contain any of the allegations, the omission of which is complained of in appellants’ assignments.

The appellee did not sue J. M. Stanley to whom he says he deeded the property involved. He designates one of the defendants as “Mrs. Mattie Stanley” but does not join her husband nor allege the existence of facts which would authorize the suit against her without joining her husband, hence the conclusion follows that she was sued as a widow. The appellee also averred that certain of the defendants were minors and asserted that the appellants were claiming title under the deeds he had made to J. M. Stanley and, in our opinion, the allegations fairly construed indicate that J. M. Stanley was dead and that the children were sued as his heirs. No explanation is offered for their claiming under the deeds nor for the suit against them if they were not heirs.

Article 1982 of Vernon’s Annotated Civil Statutes says: “In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made- parties defendant.”

In Bluitt et al. v. Pearson et al., 117 Tex. 467, 7 S.W.2d 524, 525, in answer to a certified question, the Supreme Court says:

“The sole question therefore is whether or not, in the absence of an allegation by the plaintiffs that there was no administration on the estate of Mattie Dancy and no necessity therefor the district court had jurisdiction to hear and determine the issues.
“In a suit such as that presented in the certificate, it is indispensable that the plaintiffs’ petition should contain an allegation that there is no administration and no necessity for one. No precise form of words is of course required, but the facts thus indicated must be alleged.”

See also Grupa et al. v. Grupa, Tex.Civ.App., 98 S.W.2d 217.

In Youngs et al. v. Youngs, Tex.Com.App., 26 S.W.2d 191, 193, in an opinion by Judge Critz, it is said: “We think it is a settled law of this state that before heirs, as such, can maintain a suit to recover a chose in action or other property which has descended to" them, within the period allowed by law for the taking out of an administration, they must plead and prove facts entitling them to prosecute the action, and, in the event that the suit is brought within the four-year period allowed by law for an administration, they must plead and prove that there is-no administration pending and none necessary. A petition that fails to affirmatively allege these facts is fatally defective and subject to a general demurrer.”

See also Laas v. Seidel, 95 Tex. 443, 67 S.W. 1015; Richardson et al. v. Vaughan et ux., 86 Tex. 93, 23 S.W. 640.

The record discloses that J. M. Stanley died on the 8th day of July, 1936; that ap-pellee’s petition was filed in less than four years from said date and that he failed to allege there was no administration pending or that none was necessary or that such administration if had was closed. If appellants’ contention- is correct that appel-lee’s petition disclosed a suit against the heirs of a deceased person, the demurrers should have been sustained.

In answer to this contention the appel-lee says that his petition “is a straight trespass to try title petition” and in such action he is not required to allege the facts the omission of which the appellant assigns as reversible error. To sustain this position he cites Fowler et al. v. Roden et al., Tex.Com.App., 105 S.W.2d 187 and Pure Oil Co. v. Tunnell et al., 126 Tex. 57, 86 S.W.2d 207, 209.

In Fowler v. Roden, which is based upon the holding in Pure Oil Co. v. Tunnell,, it is said that in a suit in trespass to try title the statutory elements of such an action are all that are necessary for jurisdictional purposes in the absence of a plea in abatement or special exceptions or objections to the testimony. Since no testimony was offered on the issue under consideration here, the last statement has no application. In the Pure Oil Co. v. Tunnell,, supra, the court says: “In so far, however, as the matter of pleading is concerned, the rule is not applicable to a petition in trespass to try title which does not disclose on its face the fact that the-claimants sue as heirs. Article 7366 of the statutes regulates the averments of petitions in trespass to try title. A petition. of this sort which alleges nothing more than the statute prescribes is legally sufficient. Bridges v. Cundiff, 45 Tex. 440. In the present instance the petition of the interveners simply follows the statute. It was incumbent on them, however, to show by testimony that no administration of the estate of Mrs. Tunnell is pending and none is necessary. They failed to make this proof. This furnished legally sufficient ground for dismissal of their suit, but not for the judgment which the trial court rendered concluding the merits of their claim. In a case of this sort, proof of no administration and no necessity respects the right of the claimants to sue rather than the merits of their claim.”

It will be noted that, in an action in trespass to try title in which the petition alleges nothing more than the statute prescribes, the allegations that no administration is pending and none is necessary are obviated, but, in our opinion, the petition of appellee in this case contains much more than the statute requires to be alleged in an action in trespass to try title. However, should we be in error in deciding the court should have sustained the general demurrers the judgment must be reversed because the record shows without dispute that this was a suit to recover land against the heirs of J. M. Stanley, deceased, that the action was brought within less than four years after his death and there is no testimony even tending to show that there was no administration on his estate or that none was necessary. This would not entitle appellants to a peremptory instruction inasmuch as proof of no administration or no necessity therefor has reference to the right to maintain the suit rather than to the merits of their cause of action.

The appellants present as error the action of the court in permitting the appellee while on the stand to testify to statements and transactions between him and the deceased, the substance of which were that he received no consideration for the land, that the deeds conveyed the land in trust .and that was his intention in executing and delivering them over the objection for the heirs that such testimony was in violation of article 3716 of the Revised Civil Statutes. The appellee testified in response to certain questions propounded by his attorney that his intention in deeding the land to J. M. Stanley was to convey it to him in trust to hold for appellee and have the deceased deed it back to h'im when requested, and that he received no consideration therefor. The appellee was asked these questions by his attorney and made these answers:

“Q. Well, on the Memphis property, I want you to explain about some testimony here with reference to a check for five hundred dollars. A. Uh huh.
“Q. Explain that to the jury. A. Well, J. M. give a check on a bank at Itasca.”

The appellants here renewed their objection that the testimony invaded what is known as the dead man’s statute, the objection was overruled, they excepted and the attorney and witness proceeded:

“Q. Explain the check. A. He gave me a check. I don’t recall the man that made the check out in the office. It was not the man that made out the paper; another man. The other man ought to be able to tell you. I can’t think of the man at the present time.
“Q. It doesn’t make any difference. A. Anyway he- did and this fellow made out the check and J. M. signed the check and handed it to me and we went down stairs and when we got down there he had done told me he would see I got this on a bank; that there wasn’t going to be anything to it, but that he had to do this in order to make it go through.
“Q. ■ What happened when you got down stairs? A. I gave him the check back. I says, ‘You don’t want to keep my stuff. We were raised together and I am not afraid.’
“Q. You met by the bank? A. Yes.
“Q. Did you go in the bank? A. No, sir.”

This testimony, according to the record, clearly referred to an agreement between appellee and his deceased brother relative to the land being held by the deceased in trust for appellee.

Article 3716, R.C.S., reads as follows: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such' decedent.”

This testimony, in our opinion, was inadmissible under article 3716. Finley et al. v. Pafford et al., Tex.Civ.App., 104 S.W.2d 163, and the authorities therein cited; James v. James, 81 Tex. 373, 16 S.W. 1087; Edelstein v. Brown et al., 100 Tex. 403, 100 S.W. 129, 123 Am.St.Rep. 816; Herring et al. v. Patten et al., 18 Tex.Civ.App. 147, 44 S.W. 50.

The appellee insists that'these objections were waived because appellants on cross-examination elicited substantially the same testimony from appellee.

The appellee voluntarily injected statements which were not responsive to the questions propounded apparently for the purpose of getting before the jury certain statements and negotiations passing between him and his brother relative to the deeds. As an illustration, he was asked by counsel for appellants:

“Q; Didn’t you when you signed these deeds do it for the purpose of putting that property in the name of J. M. Stanley so those people that had the claims against you wouldn’t get it? A. Well I will answer that this way: My brother told me he would take it over.”

On objection that this was not responsive it was excluded, and appellee finally stated: “I did deed it to him to protect me from those people trying to beat me out of this stuff.” In view of appellee’s injecting such matters wholly unresponsive to the questions asked, if the law was as asserted by appellee it should not be applicable under this record.

We understand if on cross-examination facts are elicited from the witness about which he has not been interrogated no complaint could be made of such testimony but, as we understand the rule, a party does not waive the objection made to the admission of testimony by cross-examining the witness on the facts theretofore elicited by opposing counsel. This, as we understand, is the holding of Judge Ramsey in Cathey v. Missouri, K. & T. Ry. Co. of Texas, 104 Tex. 39, 133 S.W. 417, 419, 33 L.R.A.,N.S., 103, in which he states: “It would indeed be a strange doctrine, and a rule utterly destructive of the right, and all the benefits of cross-examination, to hold a litigant to have waived his objection to improper testimony because by further inquiry he sought on cross-examination to break the force or demonstrate the untruthfulness of the evidence given in chief, in the event, as would most usually occur that the witness should on cross-examination repeat or restate some or all of his evidence given on his direct examination. In this casé it was a matter of prime importance to the plaintiff in error to test the accuracy tof Tate-man’s evidence, to show the inaccuracy of his means of information, and if it could be done to place before the jury the .fact or any evidences of his unworthiness.”

If the finding that appellee received a consideration for the deeds rendered harmless his statement that he did not receive such consideration, the error in admitting the other testimony, the admissibility of which is challenged, was not eliminated.

The appellants contend that they were entitled to a peremptory instruction since appellee testified, in effect, that he conveyed the land to his brother to avoid the payment of debts. The evidence is not conclusive against appellee on this issue and as the question was not submitted by the court nor requested by appellants, the presumption is that it was found by the court in favor of the judgment. Wichita Falls & Oklahoma Ry. Co. et al. v. Pepper, Tex.Civ.App. 135 S.W.2d 79.

The appellants also insist inasmuch as the jury found that the land was conveyed to the deceased to be held in trust for appellee and that appellee received a consideration for the deeds there is an irreconcilable conflict in such findings.. These findings are not necessarily in conflict as there may be a consideration paid for property to be held in trust. 65 C.J. 240, par. 29.

The judgment is reversed and the cause remanded.