author: GRISSOM, Justice.

text:
    DAY v. DAY.
    No. 2031.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1940.
    Rehearing Denied July 19, 1940.
    W. D. R. Owen, of Eastland, and John C. Hoyo, of San Antonio, for appellant.
    M. E. Lawrence, of Eastland, for appel-lee.
   GRISSOM, Justice.

On March 8, 1938, judgment was rendered in this cause granting Sam J. Day a divorce from Rose Winkler Day. That judgment was based upon citation by publication. The court appointed an attorney to represent said defendant so cited. He filed an answer consisting of a general demurrer and a general denial. In less than two years after the rendition of said judgment defendant filed her motion for a new trial, or bill of review, as authorized by Art. 2236, R.S.1936.. On the 9th day of June, 1939, a new trial was granted and the divorce case was re-tried. Judgment was rendered granting plaintiff a divorce and awarding certain money to defendant. The defendant has appealed.

On June 9, 1939, defendant filed a pleading denominated a trial amendment, consisting of exceptions (which defendant refers to in her brief as general exceptions) to the effect that plaintiff’s allegations of cruel treatment consisted of mere conclusions of the pleader. Prior thereto, in her motion for a new trial, or bill of review, defendant had expressly adopted the pleading theretofore filed, at the former trial of the divorce suit, by the attorney appointed by the court to represent her, consisting of a general demurrer and a general denial. Said general demurrer (contained in her answer filed at the first trial) and said exceptions (filed by attorneys of defendant’s own selection at the time of the hearing of defendant’s motion for new trial and second trial of the divorce case) were presented to and overruled by the court, and such action is assigned as error.

Article 2006, R.S.1925, provides, in substance, that a defendant may plead as many matters of law or fact pertinent to the cause as he may consider necessary for his defense, “provided, that he shall file them all at the same time and in due order of pleading.” It is obvious that the. exceptions were not filed at the same time as the general .demurrer and general denial but were filed subsequent thereto and not in due order of pleading.

Under the situation disclosed defendant by first filing an answer to the merits of plaintiff’s petition waived the right to thereafter present such exceptions to the petition. District & County Court Rules 6 and 7, 142 S.W. xvii; Bennett v. Ross, Tex.Civ.App., 278 S.W. 314, 315; Camden Fire Ins. Ass’n v. Clark, Tex.Civ.App., 69 S.W.2d 463, writ dismissed; Drake v. Brander, 8 Tex. 351; Towner v. Sayre, 4 Tex. 28; Smoot’s Texas Court Rules, 357, 360 and 362; 33 Tex.Jur. 559 & 525 et seq.; Arts. 2006 and 2012, R.S.1925; Townes’ Texas Pleadings (2d Ed.) 529; Howard’s Unknown Heirs v. Skolant, Tex.Civ.App., 162 S.W. 978; Hutchison v. First Nat. Bank, Tex.Civ.App., 67 S.W.2d 1052; Dickson v. Scharff, Tex.Civ.App., 142 S.W. 980, 981.

The question remains whether or not the petition was subject to a general demurrer.

Article 4629, R.S.1925, states one ground for divorce as follows: “1. Where either party is guilty of excesses, cruel treatment or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.” Plaintiff attempted to allege facts applicable to said statutory provision. He alleged that immediately after the marriage defendant began a course of improper and harsh treatment toward him; that she immediately began to call him vile and vulgar names and insulted him repeatedly, because she learned he was not as well fixed financially as she thought at the time of the marriage; that her religious belief was contrary to plaintiff’s; that defendant informed the public she was not married to him, because the marriage vows were not solemnized according to the rules of her church, and said church would not solemnize their marriage because plaintiff had other children by a former marriage. That defendant’s actions and conduct • toward him generally, both in public and in private, were of such nature as to render their further living together insupportable. He alleged that by reason of said treatment.he was forced to abandon defendant four days after they were married; that he stayed away from the defendant for twelve months when he again talked with her and she still maintained her former attitude toward and treatment of plaintiff.

The Supreme Court in McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, held a petition in the language of the statute quoted was sufficient against a general demurrer. We think the petition, though inartistic and meager in its averments, contains substantial allegations of cruel treatment within the meaning of said statutory provision. Certainly it is much more definite in its allegations of cruel treatment than was the petition held sufficient in the McCullough case. Considered in the light of said decision of the Supreme Court, and giving effect to the established rule that in passing upon a general demurrer every reasonable intendment arising upon the petition excepted to shall be indulged in favor of its sufficiency, we are of the opinion the petition is sufficient as against a general demurrer. McGinness v. McGinness, Tex.Civ.App., 126 S.W.2d 673; Curry v. Curry, Tex.Civ.App., 122 S.W.2d 677; District & County Court Rule 17; Coffman v. Coffman, Tex.Civ.App., 83 S.W.2d 416; Renfro v. Renfro, Tex.Civ.App., 80 S.W.2d 348; Cooksey v. Cooksey, Tex.Civ.App., 40 S.W.2d 947; 33 Tex.Jur. 571.

Defendant presents propositions complaining of the court’s findings of fact because such findings, she asserts, are based upon the uncorroborated testimony of the plaintiff. Plaintiff and defendant were the only witnesses. Upon the essential part of all material issues the testimony of the parties was in direct conflict. The trial court elected to believe the testimony of plaintiff. Corroboration is not required. Lowery v. Lowery, Tex.Civ.App., 136 S.W.2d 269, 270; Cooksey v. Cooksey, Tex.Civ.App., 40 S.W.2d 947; Tinnon v. Tinnon, Tex.Civ.App., 278 S.W. 288; Wynn v. Wynn, 251 S.W. 349. However, defendant introduced in evidence letters written by plaintiff to defendant prior to institution of the divorce suit in which he asserted defendant had called him “vile names.”

Defendant’s eleventh proposition is to the effect that the court’s findings of fact were not supported by a preponderance of the evidence. Under the situation as heretofore stated, we think the trial court, if he believed plaintiff’s testimony, was authorized to accord to it the greater weight and accept it as credible.

The judgment is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    HURST et al. v. VARNER et al.
    No. 3661.
    Court of Civil Appeals of Texas. Beaumont.
    June 27, 1940.
    Russell & Edwards, of Nacogdoches, for appellants.
    R. A. McAlister and S. M. Adams, both of Nacogdoches, for appellees.
   O’QUINN, Justice.

This suit was brought in the district court of Nacogdpches County, Texas, by appellants, Guy H. Hurst and W. M. Russell, against Jack Varner, County Judge, and H. D. Ard, County Clerk, of said county, and Matt Coats, George B. Whitaker, J. G. Williamson, and Orange Lowery, County Commissioners of Precincts Nos. 1, 2, 3, and 4, respectively of said county, seeking a writ of mandamus against said defendants, requiring them, as constituent members of the Commissioners’ Court of said county, to issue to each of the plaintiffs a warrant against Nacog-doches County in the sum of $200 in payment of claimed “back salary” due them as county commissioners of said county for the year 1938.

The defendants answered by general demurrer, general denial and several special defenses which need not be stated.

The case was tried to a jury, but at the close of the evidence the court instructed a verdict for the defendants which was duly returned, and judgment accordingly entered.

Article 2350, R.C.S., Vernon’s Ann.Civ. St. art. 2350, reads:

“In counties having the following assessed valuations, respectively, as shown by the total assessed valuations of all properties certified by the county assessor and approved by the Commissioners Court, for •.county purposes, for the previous year, from time to time, the County Commissioners of such counties shall each receive annual salaries not to exceed the amounts herein specified, said salaries to be paid in equal monthly installments, at least one-half, and not exceeding three-fourths, out of the Road and Bridge Fund and the remainder out of the General Fund of the county; said assessed1 valuations and salaries applicable thereto being as follows:
Salaries to be paid each Corn-Assessed Valuations missioner
$6,000,001 and less than $10,000,000 not to exceed.$1400.00
$10,000,001 and less than $13,000,000 not to exceed.$1600.00
$13,000,001 and less than $20,000,000 not to exceed.$1800.00.” etc.

On January 10, 1938, in obedience, to Article 2350(2), Vernon’s Ann.Civ.St., the Commissioners’ Court of said county duly made and entered upon the minutes of said court its order fixing the salaries of the Commissioners, as follows: “Commissioners are allowed the statutory amount, same to be paid in 12 monthly installments.” After this, each month there was issued to each Commissioner a warrant for his monthly salary .in the sum of $133.33. These warrants were accepted and cashed. This would be a salary of $1,600 for the year. On December 30, 1938, the court being in session, the record reflects: “Motion was made by Guy H. Hurst and seconded by W. M. Russell to pay the Commissioners their back salary for the year 1938. Those voting Yes: J. G. Williamson, W. M. Russell and G. H. Hurst. Voting No: G. B. Whitaker and Jack Varner, County Judge.” It was alleged and is contended by appellants that the language “back salary for the year 1938” was meant to mean and did mean the sum of $200 for each of the said Commissioners. H. D. Ard, County Clerk, refused to issue warrants for these sums. This suit followed. Appellants contend that the expression in the order fixing the salary of the Commissioners, “Commissioners are allowed the statutory amount” meant the sum of $1,800 for that year as allowed under Article 2350 set out supra. That is that, according to their' contention, the total assessed valuations of all properties certified by the county assessor and approved by the Commissioners Court, for county purposes, for the year 1937,- exceeded $13,000,001, in fact was $13,204,200.

The record shows: All of the property subject to taxation listed and assessed by the assessor for 1937 amounted to $12,-023,260. The tax rolls were made up, certified and sent to the State Comptroller about the last of October or first of November, 1937. After the rolls reached the Comptroller and State Tax Board, there was an item of $1,180,940 placed on the rolls by the State Tax Board. This represented that amount of intangible tax valuations for Nacogdoches County for the years 1935 and 1936, which had been held up by litigation, and none of said sum represented any valuation for tax purposes for the year 1937. With this intangible item added to the rolls certified by the Commissioners Court for 1937, the amount then showed to be $13,204,200. Appellants contend that the inclusion of the intangible item for the years 1935 and 1936 was proper and should be considered in arriving at the salary of the Commissioners for the year 1938. Appellees contend that said intangible item was no part of the assessed property valuations for the year 1937, was not certified on the rolls, nor included thereon when reported to the Comptroller and State Tax Board, and so should not be considered in fixing the salary of the county commissioners for that year. If this item could properly be considered as a part of the assessed valuation of taxable property in Nacogdoches county for the year 1937, then, if the meaning of the order fixing the salary of the commissioners for the year 1938 was to allow them $1,800 for that year, appellants’ contention would have support, but if said intangible item did not represent any assessed property in said county for 1937, or was not properly included as part of the property assessment for 1937, then the salary of $1,600, as evidenced by the warrants issued monthly to the commissioners and accepted by them, as contended by appellees, was correct.

Article 7113, R.C.S., provides that the State Tax Board .shall on June 20th of each year make a final valuation and apportionment of the intangible taxes assessed against the persons, corporations and associations subject to said tax, and shall as soon as practicable after said June 20th certify to the tax assessor of each county to which any portion of such intangible assets was found to be appor-tionable; and that the tax assessor of such county shall place such intangible tax assessment on his tax rolls. It is obvious, we think, that considering the two statutes, Articles 2350 and 7113, together, that in fixing the salaries of the county commissioners for the year property assessed for the preceding year properly on such tax rolls as assessed for that year only must be considered, and not property assessed for other preceding years. The intangible tax item was not certified to the county assessor by the State Tax Board as property to be taxed by Nacog-doches County for the year 1937, neither was it, or any part of it, property values to be taxed for the year 1937, but was admittedly valuation of property to be taxed for the years 1935 and 1936, which had been held up from being placed on the tax rolls by litigation. Under the statutes mentioned it is inconceivable that portions of tax valuations of property to be assessed for several years may be added together, as here, and salaries of the officials in question be fixed by considering the assessments in lump sum.

We have concluded that appellees’ contention must be sustained; therefore the judgment is affirmed.


author: LESLIE, Chief Justice.

text:
    WALKER v. CITY SERVICE TAXI & BUS.
    No. 2023.
    Court of Civil Appeals of Texas. Eastland.
    June 7, 1940.
    Rehearing Denied June 28, 1940.
    Cox & Hayden, of Abilene, for appellant.
    Scarborough & Ely, of Abilene, for ap-pellee.
   LESLIE, Chief Justice.

This is a suit by Mrs. Lurline Walker to recover damages against the City Service Taxi & Bus operated by O. B. Fielder. She alleged that while she was a passenger on the defendant’s bus the spindle on the right front axle broke, injuring her in the knee, leg, and other parts of the body. The defendant answered by general denial, and specially alleged that the bus had been and was then in good condition, was regularly and properly inspected, and that the injury, if any, to the defendant resulted from a hidden defect concealed in the spindle and could not have been prevented in the exercise of ordinary care, or such degree of care under the circumstances as was required of a common carrier to a passenger.

The trial was before the court and jury-, and at the conclusion of the testimony the court instructed a verdict in favor of the defendant and entered judgment accordingly-

The correctness of this ruling and judgment is challenged by various assignments of error. They aré to the effect (1) that it was error to peremptorily instruct the jury because there were issues of fact under the pleadings and the testimony which should have been submitted to the jury, (2) that the breaking of the spindle which caused the injury was due to the negligence of the driver in running over a stop sign about two inches high situated in the middle of North 3rd Street into which the driver turned the bus at a sharp angle as he passed out of Grape Street, (3) that the injuries complained of were proximately caused by the negligence .of the driver in permitting the bus to get out of his control immediately prior to the accident, thereby running over the stop sign and breaking the spindle, (4) that defendant negligently failed to furnish a reasonably safe bus for the transportation of the plaintiff, (S) that the defendant negligently failed to properly inspect the bus for defects in the spindle, etc., before undertaking to transport the plaintiff, (6) that the plaintiff was guilty of negligence in driving the bus at the time of the accident and just prior thereto at a high rate of speed dangerous under the circumstances, and (7) the court erred in overruling the motion for a new trial on grounds of newly discovered evidence.

The case is well briefed in this court. There are various propositions under the assignments of error, and our attention has been specifically directed to the different phases of the testimony upon which the appellant predicates each of the above contentions. The testimony bearing upon each has been segregated and set forth in the brief. This we have considered, and in addition we have carefully read the entire statement of facts. After so doing, we have reached the definite conclusion that the trial court correctly appraised the testimony and properly directed the verdict in favor of the defendant.

In support and justification of our conclusions, we have been much inclined to set forth the testimony upon which the appellant relies to establish his contentions; but to do so would prolong this opinion much beyond reasonable bounds, and it would serve no useful purpose to the profession or the judiciary. As for the litigants, their attorneys are already well familiar with the details of the testimony and the applicable rules of law are fundamental. Hence, we content ourselves with the expression of definite conclusions derived from a study of the evidence as a whole, and refrain from a detailed statement of it in the opinion.

Taking the plaintiffs testimony as true and the testimony generally in the light most favorable to the ptaintiff, we are of the opinion that there is no evidénce to establish the essential allegations of negligence and liability therefor.

Further, if there be found any statement in the testimony tending to suggest negligence upon the part of the defendant in the respects alleged, we are of the opinion that such statements, if any, go no further than to raise a mere speculation or surmise concerning such alleged negligence, and therefore fall within the scintilla rule, amounting to no testimony at all. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

We believe the assignment raising ''the question of newly discovered evidence to be without merit. In its essential nature, it would be cumulative and would have amounted to no more than the opinion or inference of a mechanic based on inspection of the broken end of the spindle. Nothing about that feature of the accident was concealed or withheld by the defendant, and when this mechanic was on the stand testifying, the plaintiff’s attorney asked if he (mechanic) ever saw the spindle after it came to the shop, whereupon the attorney for defendant in open court stated, “We have it, if you want it.” It docs not seem to have been called for. Further, the plaintiff’s son, himself a mechanic, took with him the witness Leroy Kilpatrick and inspected the broken spindle part of the axle and evidently could have inspected the other part of the spindle in the wheel had he cared to do so. Apparently, anyone at the insistence of either litigant could have made such inspection had it been deemed of sufficient importance. The accident occurred in November, 1938, and this trial took place in the April term, 1939. The part of the spindle was then available. Considering all the circumstances, the trial court did not err in refusing a new trial on this ground.

For the reasons assigned, the judgment of the trial court is affirmed.


author: McCLENDON, Chief Justice.

text:
    OMOHUNDRO v. NOWLIN et al.
    No. 9073.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1940.
    Rehearing Denied July 10, 1940.

      Baker & Baker and E. M. Critz, all of Coleman, for relator.
    Dibrell & Snodgrass, of Coleman, for respondents.
   McCLENDON, Chief Justice.

This is an original proceeding in this court in which relator seeks a writ of prohibition and injunction to prevent the further prosecution of a suit in forcible entry and detainer brought by some of the respondents against relator in a justice court in Coleman County. The ground upon which the relief is sought is that the plaintiffs in the justice court suit had previously brought a suit against relator in the district court of Coleman County for title and possession of the same property as that involved in the justice court suit; which district court suit is now pending on appeal in this court under supersedeas bond; wherefore no right exists to prosecute the justice court suit.

For the purposes of this case it is only necessary to state that from the agreed facts it appears that Mrs. Nowlin et al. brought suit in trespass to try title in the district court of Coleman County against Omohundro to recover the title to and possession of certain business property in Coleman. Plaintiffs sequestered the property and Omohundro thereupon replevied it. The case was tried upon its merits and judgment was rendered decreeing title in plaintiffs and awarding writ of possession to them. Omohundro gave notice of appeal which he perfected by giving a supersedeas bond, and duly filed the record in this court where the case is now properly pending. Though the suit was in form in trespass to try title the title to the property was not in dispute, the only controversy being whether Omohundro, who was in possession as a tenant of plaintiffs, 'had a valid contract of tenancy which had not expired. The effect of the above proceedings in the district court case was to continue Omohundro in actual possession of the property pending his appeal in that case. Subsequently to filing the supersedeas bond, plaintiffs instituted against Omohundro the forcible entry and detainer suit in the justice court to obtain possession of the same property. Omohundro plead in abatement the pendency of the district court suit. The plea was overruled; the case was tried and judgment was rendered in Omohundro’s favor. Plaintiffs appealed to the county court where the plea in abatement was again overruled, and the case stands for trial in that court and will be tried therein unless we grant the relief sought in the instant proceeding.

R.C.S. Art. 3994 reads: “The proceedings under a forcible entry, or forcible de-tainer, shall not bar an action for trespass, damages, waste, rent or mesne profits.”

It has been the uniform holding under this Article that the action of' forcible entry and detainer and the action of trespass to try title or other possessory action in the district court provide cumulative and not exclusive remedies and may be resorted to and prosecuted concurrently. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 103 A.L.R. 977; Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307; Dempsey v. Gibson, Tex.Civ.App., 100 S.W.2d 430; Hartzog v. Seeger Coal Co., Tex.Civ.App., 163 S.W. 1055; Bull v. Bearden, Tex.Civ.App., 159 S.W. 1177; 19 Tex.Jur., p. 966.

Since the judgment in the district court case is on appeal to this court, and especially since it has been superseded, the cause is still a pending one, and the concurrent, cumulative remedy of forcible entry and detainer may, under this article and these authorities, be prosecuted and is not subject to be abated.

It is relator’s contention that the Hartzog case, above, is predicated upon the following holding in Garza & Co. v. Piano Co., 59 Tex.Civ.App. 590, 126 S.W. 906, 907: “The doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in Texas.” Which holding has been overruled in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, and a number of other cases.

This is correct. But we do not regard the decision as predicated upon that holding alone; since the Bearden case, above, is also cited. Be that as it may, the fact that the decision may be rested, either in whole or in part, upon an erroneous theory, does not destroy its inherent soundness. It is cited with approval by Mr. Associate Justice Sharp, in his opinion in the Holcombe case above. Of course, the court in that case merely approved the decision in the Hartzog case, the effect of which was that the two remedies were concurrent. The citation with approval of the Hartzog case cannot be construed as in any sense approving the above overruled holding in the Garza case.

Independently, however, of the Hartzog decision, the authorities are uniform to the affect above announced; and control our decision in this case. The holding that the remedies are concurrent and cumulative is predicated upon express statutory enactment; and the holding in Cleveland v. Ward has, therefore, no application.

The prayer of the petition is denied.

Petition denied.


author: FUNDERBURK, Justice.

text:
    CONTINENTAL SOUTHLAND SAVINGS & LOAN ASS’N v. JONES.
    No. 2026.
    Court of Civil Appeals of Texas. Eastland.
    May 31, 1940.

      A. K. Doss and Kirby, King & Over-shiner, all of Abilene, for appellant.
    Cox & Hayden, of Abilene, for appellee.
   FUNDERBURK, Justice.

This suit arose out of a written contract which, because its construction is deemed controlling, we here set out as follows:

“The State of Texas
“County of Taylor
“This agreement made and entered into on this the 1st day of March, 1937, by and between Continental Southland Savings & Loan Association, hereinafter called Vendor, and H. E. Jones, hereinafter called Vendee (whether one or more), witnesseth:
“Vendor by these presents agrees to sell and convey by good and sufficient deed to Vendee who agrees to purchase the same, that certain lot, tract or parcel of land, together with all improvements thereon, situated in Taylor County, Texas, known as
“Lot 11 and the North 20 feet of Lot 10, Block 3, Heyck Subdivision to the City of Abilene, Taylor County, Texas, together with all improvements located thereon, and being better known as 625 Victoria Street.
“The purchase price of said property is $2,250.00, payable by Vendee to Vendor as follows: $50.00 cash upon the execution of this contract, the receipt of which is hereby acknowledged, with the balance of the consideration named herein payable to the order of Vendor at its office in Dallas, Texas, in monthly installments of $30.00 each, the first installment to become due and payable on or before the 1st da,y of April, 1937, with one installment maturing on or before the 1st of each succeeding month thereafter until paid, together with interest hereon at the rate of seven per cent per annum, pay-, able monthly as it accrues and included in each installment.
“Vendor agrees that when $250.00 of the purchase price named herein has been paid, to execute a deed to Vendee conveying said premises, and Vendee agrees to execute to Vendor a note for the sum of $2,000.00 to be payable in monthly installments of $30.00 each, together with interest thereon at the rate- of seven per cent per annum, payable monthly as it accrues, and included in each installment; said note to be payable at Dallas, Texas, secured by a 'vendor’s lien retained in said deed, and a deed of trust with the usual covenants and power of sale.
“Vendor agrees to furnish (a) an abstract of title or (b) title policy (Seller’s Option) to said property which is to be conveyed free and clear of all encumbrances except that mentioned herein, and Vendee agrees that within ten days after good and marketable title is presented, to immediately accept same and consummate this contract. If Vendor fails to furnish good and marketable title to said premises, all money paid hereon, less the reasonable rental value of said property, is to be refunded to Vendee upon the surrender and cancellation of this contract.
“Vendee agrees that, if default is made in making the payments as herein provided or in the performance of the agreements and covenants herein contained or either of them, this contract at Vendor’s option shall become null and void. Should such option be exercised, Vendor shall be released from further obligations hereunder and all sums paid hereon shall be forfeited.as liquidated damages and as the agreed rental value of said property. Vendee further agrees, in case of such default, to give peaceable possession of said property, and any occupancy of said premises by Vendee subsequent to date of default shall be as tenant only and at a monthly rental equal in amount to the installments hereinabove stipulated.
“All contracts, agreements, statements and representations heretofore made by the parties hereto or, their agents are merged into and are superseded by this agreement.
“Taxes for the current year, current rents and insurance are to be prorated to date of this contract.
“Vendors are to pay taxes and insurance out of the $30.00 monthly installments.
“Vendee agrees to, within six months’ time, improve place to the extent of $250.-00.”

H. E. Jones, “Vendee” in said contract, sued Continental Southland Savings & Loan Association, a corporation, “Vendor”, seeking- recovery of $620 (being the $50 cash payment and nineteen of the $30 installment payments as provided in said contract), and $972 as the value and cost of improvements made upon said property, less a credit of $345, as the alleged reasonable rental value of said property for twenty-three months during which it was occupied by plaintiff.

It was alleged that payments aggregating $620, including the down payment of $50, constituted all of the installments due up to and including October 1, 1938. The suit was filed April 5, 1939.

In a non-jury trial judgment was rendered for the plaintiff awarding him recovery of $683.25, but denying his claim of an equitable lien on said property. The defendant has appealed.

It will be convenient to refer to appellant as “Vendor” and the appellee as “Vendee”, the same as in said contract.

Vendor first contends that the court erred in overruling its general demurrer to Vendee’s Second Amended Original Petition (trial pleading). We think said pleading does fail to state a cause of action, but we are not entirely persuaded to that view by the reasons urged by Vendor.

It is first necessary to determine the real nature of the suit which is not entirely clear when plaintiff’s petition is read, as it should be, in -connection with the contract attached as an exhibit to the pleadings.

We shall not do more than simply state our conclusion that Vendee’s petition shows no ground of recovery based upon fraud and deceit. There is so certainly absent the averment of essential elements to show a cause of action for the cancellation of the contract because of fraud that the mere statement to that effect is deemed sufficient.

In our opinion, Vendee’s petition indicates a wrong construction of the contract, particularly the provision reading thus: “Vendor agrees to furnish (a) an abstract of title or (b) title policy (Seller’s Option) to said property, which is to be conveyed free and clear of a'll encumbrances except that mentioned herein, and Vendee agrees that within ten days after good and marketable title is presented to immediately accept same and consummate this contract.” In one sense,. o.f course, the contract was consummated,.. when it was executed by the parties, but that cannot be the same sense in which the Vendee was obligated “within ten days after good and marketable title is presented to immediately accept same and constimmate this contract.” (Italics .ours.) What, then, was intended to constitute a consummation of the contract? There are, we think, most persuasive reasons to support the conclusion that the. acceptance of title by vendee was a condition precedent to any obligation on his part to improve the place to the extent of $250, or even to make the first installment payment of $30 on April 1, 1937, unless under the existing circumstances more time as a matter of fact was reasonably necessary (a) for vendor to furnish either an abstract of title or title policy, (b) for vendee, if abstract (instead of title policy) was furnished, to have same examined and (c) within ten days to accept the title, or title policy. In the absence of such acceptance, expressly or impliedly, the only rights or duties of the parties under the contract were for Vendor to refund the $50 cash payment and possibly, under exceptional circumstances, a $30 installment, less the reasonable rental value of the property, and for the Vendee to yield the possession, thus discharging the contract according to its terms. In other words, the contract manifests the intention, in our opinion, that it was not to be, or become, really a contract for the sale and purchase of the property, save upon an acceptance of the title which Vendor was able to convey, or the title insured as provided.

As a contract for the sale and purchase of land, as a transfer of equitable title to the land from the Vendor to Vendee, it was never consummated, never became effective, unless from the conduct of the parties there was an implied acceptance of such title as the Vendor was able to convey. The Vendee by entering into possession of the property, by expending for improvements thereon the sum of $972, by paying nineteen of the $30 monthly installments of the purchase price, by never demanding an abstract of title or a title policy, by not even demanding a deed when the $250 had been paid, as provided in the contract, undoubtedly, we think, had an equitable title to the land and, if so, it was because of an implied acceptance of the title, thereby ■ effecting a consummation of the contract as one for the sale and conveyance of the land, rather than one merely providing for the refund of the initial payments, less the reasonable rental value as compensation for the time occupied by Vendee. Vendee, by paying or tendering the remaining installments, if in fact they were payments on the purchase price, before a forfeiture was duly declared because of defaults, could have enforced the transfer to him of whatever title the Vendor had. Assuming the existence of circumstances authorizing him to do so, Vendee having failed to exercise his right to refuse acceptance of the title and thereby having consummated the contract according to its terms, and having, according to the allegations of his own petition, after long recognition of the existence of the contract defaulted for several months in the payment of the $30 installments had no right, according to the contract, to terminate it, and therefore of course no right to recover any part of the $620 paid upon the purchase price, or any part of $972 expended for improvements upon the place.

Under any reasonable construction of the contract no cause of action was shown by the allegations of Vendee’s petition. Even if Vendor had no good merchantable title, and for that reason was unable to convey such title, it had the option to substitute therefor a “title policj'-”, meaning, we take it, title insurance. In order to state a cause of action, of which the fact of inability of Vendor to convey good and merchantable title was an essential element, it was necessary to allege facts to show not only that the Vendor was unable to convey the specified title, but also that it refused or was unable to deliver a “title policy.” If a promise sought to be enforced is to do one or the other of two things at the option of the promisor, then there must be alleged a failure or refusal to do either. It was necessary to stipulate in the contract, as was done, that said property “is to be conveyed free and clear of all encumbrances except that mentioned herein” for two or more reasons not at all inconsistent with the optional right of Vendor to substitute title insurance for good marketable title, or at any rate an abstract showing good and marketable title. In the first place, it was necessary so to provide in order to meet the contingency that Vendor did not have title of the character specified and did not exercise its option to provide title insurance. Said provision was necessary in such case to fix the measure of Vendee’s right to refuse acceptance of the title and thereby refuse to consummate the contract as one for the sale and purchase of the land. In the next place, said provision was necessary if title insurance was provided as defining the subject matter of the insurance and specifying the exclusions therefrom.

If Vendee had the right asserted ■to terminate the contract under the circumstances disclosed by his petition and to recover the $620 paid upon the purchase price less the reasonable rental value of the property, he would, nevertheless, have no right to recover for the value of improvements made, or enhancement of the value of the property from such improvements simply for the reason that the contract does not so provide: The contract provided that “all money paid hereon less the reasonable rental value of said property is to be refunded to Vendee upon the surrender and cancellation of this contract.” The $250 to the extent of which Vendee agreed that within six months he would improve the place is not within the reasonable import of the words “all money paid hereon.” The improvements and the value of the improvements were to belong to Ven-dee. In making the improvements he was improving his own property. The only purpose of the covenant obligating Vendee to make improvements to the extent of $250 was to enhance the value of Vendor’s security for payment of the purchase price. This particular matter is rendered of no great importance by the conclusions already stated. We merely point out that under no circumstances could the Vendee recover, as a contract right, the value of the improvements or enhancement in value of the property resulting from the improvements.

There is another and independent reason why the averments of Vendee’s petition show no right to recover. This reason applies even if Vendee’s construction of the contract is right. The averments show mutual indulgences and delays. Just as Vendor could not, over a considerable period of time, accept delayed payments of the $30 installments (if it did do so, a question hereafter to be noticed) and without notice and giving reasonable opportunity to pay up the arrears declare a forfeiture of the contract, so could Ven-dee not indulge delay of the Vendor in furnishing an abstract for nearly two years which should have been furnished, or the equivalent thereof supplied within a few days or weeks, all the while recognizing the contract by the payment of installments and then without notice and affording reasonable opportunity to present a good and marketable title declare, in effect, a forfeiture of the contract. Buck v. DeShazo, Tex.Civ.App., 5 S.W.2d 878, and authorities cited; Caprito v. Grisham-Hunter Corp., Tex.Civ.App., 128 S.W.2d 149, and authorities cited.

By reason of the contract being set out as an exhibit to Vendee’s petition, said pleading was insufficient to show that the contract had not been forfeited by the defaults of the Vendee in making the installment payments. This conclusion is based upon the contract provision reading “If default is made in making the payments as herein provided or in the performance of the agreements and covenants herein contained or either of them this contract at Vendor’s option shall become null and void * * * and any occupancy of said premises by Vendee subsequent to date of default shall be as tenant only and at a monthly rental equal in amount to the installments hereinabove stipulated." (Italics ours.) It was necessary for Vendee to aver facts to rebut the presumption that the acceptance of delayed payments did not constitute, rentals. Whether ' the acceptance of the money was as rentals, or as purchase price, is not important in the disposition of this appeal, but is mentioned in view of future proceedings.

We shall not discuss questions which may not be expected to arise in future proceedings. It may be said, however, that in our opinion if it be material for Vendee to establish as an issue that Vendor could not convey good and marketable title, it would be necessary to allege the facts from which such a conclusion would follow, the conclusion being, we think, one of law and not of fact.

In the proof of such an issue the opinion of an attorney given to a third person would be hearsay and incompetent as evidence.

For the reasons given, it is our conclusion that the judgment should be reversed and the cause remanded, which is accordingly so ordered.


author: FUNDERBURK, Justice. '

text:
    CARPENTER et al. v. BASS et al.
    No. 2091.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1940.
    Rehearing Denied July 19, 1940.
    Gerald C. Mann, Atty. Gen., Morris. Hodges, Asst. Atty. Gen., and James W. Peavy, Geo. W. Barcus, and Ocie Speer,, all of Austin, for appellants.
    T. J. McMahon and Pludson Smart, both of Abilene, for appellees.
   FUNDERBURK, Justice. '

Three partnerships, in the retail drug business, operate at three separate places of business in the city of Abilene, under-the names of McLemore-Bass Drug Company No. 1; McLemore-Bass Drug Company No. 2; and McLemore-Bass Drug-Company, No. 3. The partners composing-the firm of McLemore-Bass Drug Company No. 1 are PI. J. Bass, J. B. Ray and Mrs. A. P. McLemore. Those composing-McLemore-Bass Drug Company No. 2 are the same as No. 1, together with George D. Graves. Those composing McLemore-Bass Drug Company No. 3 are the same ■ as No. 1, together with Henry K. Bass. The members of said three partnerships joined as plaintiffs in bringing this suit which is an. action permanently :to enjoin' the members of the Texas Unemployment Compensation Commission from collecting ■ or attempting to collect from said three - partnerships, or any of them, or from any - of the co-partners forming such partnerships, “contributions” or taxes claimed by said Commission to be due by the plaintiffs as an “employer” under the provisions of the Unemployment Compensation Act (Vernon’s Ann.Civ.St, arts. 5221b — -1 to 5221b — 22, inclusive).

The defendants, in addition to defensive pleas consisting of a general demurrer and general denial, asserted a cross-action to recover the “contributions” or taxes, the collection of which was sought by plaintiffs to be enjoined.

In a non jury trial the judgment declared that plaintiffs were not liable for payment of said taxes; awarded plaintiffs the injunction prayed, and provided that defendants take nothing by their said cross-action.

The defendants have appealed.

No question is made of the sufficiency of the pleadings or of the absence of necessary or proper parties to the action or cross-action.

The learned trial judge, upon due request, filed conclusions of fact and law. One conclusion, purportedly a conclusion of fact, was that “each of said partnerships are separate and distinct organizations and partnerships, neither having any control or supervision over the other.” (Italics ours.) As to control of McLe-more-Bass Drug Company No. 1, a further conclusion was that “it is in the active control and management of the managing partner, J. B. Ray, whose rights as managing partner, are vested pursuant to the terms of an oral contract by the parties comprising said firm * * * entered into at its inception * * * and as such dictates and controls the policy of said business with exclusive control and supervision over the drug business of said firm as same is operated in Abilene, Taylor ■County, Texas, on Pine Street in said ■city, and as such managing partner employs all servants, agents and clerical assistance in connection with the business of said partnership.” (Italics ours.)

As to control of McLemore-Bass Drug Company No. 2, it was the further con■clusion, purportedly of fact, that “the active control of the partnership affairs of the firm of McLemore-Bass Drug Company No. 2 is exclusively vested in the managing partner George D. Graves, pursuant to the terms of an oral contract between the members of said partnership at the time of its creatibn. * * * that the said George D. Graves, as managing partner of the partnership known as McLemore-Bass Drug Company No. 2, conducts and controls exclusively the business of said firm and as such dictates and controls the policy of said business and the manner and means of conducting same, and as such managing partner employs all agents, servants and employees employed in connection with the same and discharges such agents, servants and employees.” (Italics ours.)

As to control of the business of the third partnership,' the conclusion was “that the active control of the partnership affairs of the firm of McLemore-Bass Drug Company No. 3 is exclusively vested in the managing partner, H. K. Bass, pursuant to the terms of an oral contract between the members of the said partnership at the time of its creation. * * * that the said H. K. Bass * * * conducts and controls exclusively the business of said firm and as such [managing partner] dictates and controls the policy of said . business and the manner and means of conducting-same, and as such managing partner employs all agents, servants and employees employed in connection with the same and discharges such agents, servants and employees.” (Italics ours.)

A further conclusion applicable to all three partnerships was that “noiie of said partnerships control[s] any other business or institution of any character.”

Neither of the said three partnerships ever at any time employed as many as eight employees at one time, including the respective managing partners of said firms.

Other than an assignment suggesting a matter of fundamental error, the only actions or rulings of the court assigned as errors are (1) “in rendering judgment for the plaintiffs for a perpetual injunction restraining the collection of the contributions or taxes by the defendants” and (2) “in not rendering judgment for the defendants, instead of for the plaintiffs, for the sums of money sought by the defendants on their cross-action.” There is, therefore, no question presented of whether there was no evidence or insufficient evidence to support any of the conclusions of fact or law, other than may be involved in the suggestion of fundamental error. It, therefore, appears that if the question of control was an issue of fact, that issue was determined in such way that no judgment other than the judgment rendered was warranted by the judge’s conclusions of fact and law. Clearly, if such issue of fact was involved the court did not err in either of the respects challenged by said assignments of error in rendering said judgment.

Appellants’ suggestion of fundamental error under the heading “Third Assignment of Error” is as follows: “The judgment is fundamentally wrong in this: The pleadings of the plaintiffs are insufficient and state fasts affirmatively showing that they are not entitled to the relief given them by the judgment, but, on the contrary, are liable for the contributions. or taxes claimed by defendants herein, for which error appellants pray this court to reverse and render the cause.”

The question for decision as thus presented is whether or not plaintiffs by their said pleading alleged facts showing" as a matter of law that they, together, constituted an “employer” of eight (8) or more employees under the provisions (including definitions of terms) of said “Unemployment Compensation Law.” Among its many and complicated provisions, said Act includes one imposing liability for the payment of “contributions.” We assume that such “contributions” constitute taxes' imposed for revenue. The liability for the payment of such “contributions” or taxes is imposed only upon “employers” in a particular sense. Under said Act each of said three partnerships is an “employing unit.” An “ ‘employing unit’ means any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this State.” (Italics ours). (Under exceptional circumstances, not here involved, the definition is somewhat further extended.) Vernon’s Ann.Civ.St. art. 5221b— 17(e). The “contributions”, or taxes, are not imposed upon an “employing unit” as such. An “employing unit” under the definition may, or may not, be an “employer” upon whom only liability for payment of the contributions or taxes is imposed.

“An employer” is an “employing unit” .which, in specified manner and time, “has or had in employment eight (8) or more individuals (irrespective of whether the same individuals are or were employed in each such day)”, or “any employing unit which together with one or more other employing units, is owned or controlled (by legally enforceable means or otherwise) directly or indirectly by the same interest, or which owns or controls one or more other employing units * * * and which, if treated as a single unit with such other employing unit, would be an employer” which is to say, “has or had in employment eight (8) or more individuals”. Vernon’s Ann.Civ.St. art. 5221b— 17, subsec. (f) pars. 1 and 4.

Under the facts there is eliminated, we think, any question of a common ownership of all three “employing units” by the same interest or by one or more of such “employing units.” No single interest, and no one or more of the employing units owned all three of the employing units. The question of whether the plaintiffs constituted an “employer” in the sense that only employers are subject to the tax is dependent upon whether or not, as a matter of law, all the three employing units are controlled (by legally enforceable means, or otherwise), directly or indirectly, by the same interest or by one or more of said employing units.

The question does not involve an exemption from taxation, of the nature of which the rule of liberal construction in favor of the taxing authority and strict construction against the one claiming the exemption, is applicable. 40 Tex.Jur. 109, sec. 74; 26 R.C.L. 313, sec. 274; 61 C.J. p.. 392, sec. 396. On the contrary, the question is whether or not the plaintiffs come within the statutory provisions imposing the tax. In such case, contrary to the rule relating to exemptions the applicable rule of construction is that the statute should be construed strictly against the taxing authority, and liberally in favor of one sought to be held liable for the tax. The principle of the latter rule is dealt with in the following authorities: 61 C.J. p. 392, sec. 395; Eidman v. Martinez, 184 U.S. 578, 583, 22 S.Ct. 515, 517, 46 L.Ed. 697; United States v. Goelet, 232 U.S. 293, 298, 34 S.Ct. 431, 58 L.Ed. 610; Bowers v. New York & A. L. Co., 273 U.S. 346, 350, 47 S.Ct. 389, 390, 71 L.Ed. 676, 679; United States v. Merriam, 263 U.S. 179, 188, 44 S.Ct. 69, 72, 68 L.Ed. 240, 244; Shwab v. Doyle, 258 U.S. 529, 534, 42 S.Ct. 391, 66 L.Ed. 747, 752, 26 A.L.R. 1454; In re Harbeck’s Will, 161 N.Y. 211, 55 N.E. 850; English’s Estate v. Crenshaw, 120 Tenn. 531, 110 S.W. 210, 17 L.R.A., N.S., 753, 127 Am.St.Rep. 1025; State of Ohio v. Harris, 6 Cir., 229 F. 892, 898; People v. Koenig, 37 Colo. 283, 85 P. 1129, 1130, 11 Ann.Cas. 140; Fidelity & Cas. Co. v. Board of Review, 264 Ill. 11, 105 N.E. 704, 707; In re Curtis Estate, 88 Vt. 445, 92 A. 965, 966.

Under the operation of that rule if there be any ambiguity in the meaning of the word “controls” as used in said subsection 4 of Vernon’s Ann.Civ.St., art. 5221b—17 (f), it is to be construed most strictly against the tax liability asserted, and, therefore, of course, most liberally in favor of non liability.

Plaintiffs’ petition did not allege any facts showing control of all the three employing units by one interest, or by one or more of said employing units, unless, as a matter of law, the fact that H. J. Bass, J. B. Ray and Mrs. A. P. McLemord were a majority of the partners in each of said three firms, alone constituted such control, mid no other facts could exist which would prevent such first named fact from showing control.

It may be conceded, provisionally, that the fact that said three partners were common to each partnership and constituted a majority of the members of each partnership, would, in the absence of any other fact, show control. If so, that would result from the operation of a presumption of control. But, let us suppose, as the conclusions of fact suggest may have been the case, that the several contracts creating the different partnerships vested exclusive control of the affairs of each particular partnership in its managing partner so that there could be no resumption of control by any of the other partners without working a dissolution of the partnership. That, wé think, would show the absence of control' such as is necessary to constitute the plaintiffs an “employer” subject to the tax. A potential power of control which could not be exercised without working a dissolution of the partnership is, in our opinion, not the control which the statute, justly interpreted, requires to constitute the members of the several partnerships, neither having as many as eight employees, an “employer.” Such a construction of the statute, if permissible under any circumstances, would, we think, if applied here, violate the rule of construction above mentioned.

Corpus Juris says: “In the absence of any special stipulation between the partners on the subject, every partner is entitled to take part in the management of the business. But the management of the business and the extent of the control of particular partners are- proper subjects for arrangement by the partners; thus a valid agreement may be made under which one or more partners are given exclusive control over the management of the entire partnership business * * * An agreement for exclusive control of the business by one partner may be implied from the course of conduct of the partners * *.” 47 C.J. 784, sec. 226. (Italics ours.) Texas Jurisprudence says: “In ordinary partnerships, and in voluntary associations also, the management and control of the business is in the majority of the partners, hut by agreement it may he committed to one or more of them, and may be withdrawn if the articles do not forbid or prevent it. Among themselves partners may vest the sole management in one or more partners, the others working under his direction * * *.” 32 Tex.Jur. p. 301, sec. 52. (Italics ours.) In Oil Lease & Royalty Syndicate v. Beeler, Tex.Civ.App., 217 S.W. 1054, 1057, the court said: “So far as relates to ordinary partnerships, the control and management of the business is with the majority of the partners, although it may hy agreement he committed to one or more of the partners.” (Italics ours.)

The verb “controls” is not used in reference to the subject matter in different senses so as to require one meaning to be distinguished by the “ultimate control.” We think that the rule of construction before mentioned compels the conclusion that the bare fact that the three partners constituting McLemore-Bass Drug Company No. 1 constituted also a majority of the partners in each of the other two partnerships, does not establish conclusively, as a matter of law, that they control the other three partnerships, regardless of any contracts that could exist vesting exclusive control in the managing partners of said partnerships. As said before, there is presented no question of the sufficiency of evidence, or absence of any evidence, to support the findings relating to control, and unless it can be said, as a matter of law, that there could exist no evidence -to prevent said fact from showing control, then the judgment as against any attack made upon it was proper.

It is accordingly our conclusion that the judgment of the court below should be affirmed, which is so ordered.

       nt may be doubted, we think, whether the defendants — that is, the members of the Texas Unemployment Compensation Commission — could, as such, maintain the cross-action for recovery of the taxes in •view of the provisions of Vernon’s Ann. Civ.St., art. 5221b — 15, to the effect that any civil action to enforce the provisions of the law shall be instituted in the name of the State and of the Attorney General.


text:
    GUTHRIE v. GOSSETT, Banking Com’r, et al.
    No. 2029.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1940.
    Rehearing Denied July 19, 1940.

      Scarborough & Ely, of Abilene, Texas, for appellant.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, and Harrell & Bowers, of Breckenridge, for appellees.
   LESLIE, Chief Justice.

C. W. Guthrie instituted this suit against the Farmers State Bank in Merkel and Jack B. Robert to recover an undivided 7/16ths interest in an oil and gas lease on 14 acres of land in Jones County. After suit was filed the bank became insolvent and its assets were placed in the hands of Z. Gossett, Banking Commissioner, who was substituted for the bank.

Robert and Gossett each answered by general demurrer, general denial, and pleas of not guilty, and Robert further alleged he was an innocent purchaser of the property, etc. The parties will be referred to as in the trial court.

The petition first stated a suit in trespass to try title and thereafter specially alleged in detail the nature and origin of plaintiff’s rights in the leasehold.

■ The plaintiff’s specific allegations state in substance his acquisition by written lease of the property from R. N. Campbell, lessor;’ that September 12, 1934, he executed the deed of trust on the same to R. M. Wagstaff, trustee, to secure the payment to Said bank of a demand note in the sum of $1,800; that December, 1937, the cashier of the bank wrote him a letter demanding that he pay the note and stating that if he did not do so the bank would proceed to foreclose its deed of trust lien; that in response to the letter, he, Guthrie, called at the Merkel bank and discussed the indebtedness'and the. cashier of same informed him that although the indebtedness was past due it was amply secured and that he, Guthrie, might disregard the letter. That the bank then agreed with him that the property would not be sold under the deed of trust until further notice was given him.

That thereafter, without additional notice, and without allowing him' an opportunity to pay off the balance of the note then due, the bank requested the trustee to advertise and sell the property; that acting upon such request the trustee advertised the property for sale and sold the same April 5, 1938 at public auction to the said bank which later conveyed same to defendant Jack B. Robert; that this sale to the bank was void (1) because the debt originally secured had been fully paid, and (2) the bank’s agreement to give further notice of said sale had been violated by the bank, thereby rendering the conveyance void, even though, plaintiff was mistaken as to the indebtedness having been fully paid at the time of notice and sale.

Plaintiff further alleged that at the date of sale the property was worth from $5,-000 to $10,000 and that if anything was due upon the debt it was only a few hundred dollars. That the property was sold for a grossly inadequate amount.

In connection with the first allegations in trespass to try title, the plaintiff presented the formal allegation that the defendants took control of said property on April S, 1938, and were withholding the same from his possession “to his damage in the sum of $7,000, for which he here sues.”

Following the remainder of the petition stating in detail the nature of the plaintiff's cause of action, plaintiff prays as follows: “Wherefore, premises considered, plaintiff prays the court that the said sale and the deed thereunder by the said trustee be set aside, canceled, and held for naught as a cloud on plaintiff’s title to said oil and gas lease, and that defendants be required to account to plaintiff for the income received finder said oil and gas lease since the date of said deed of trust and the pledge of said oil runs, and that plaintiff recover judgment for the title and possession of said 7/16ths interest in said oil and gas lease, and for such other and further relief, at law and in equity, to which he may be entitled.”

The case was tried before the court and jury, and upon three special issues submitted, the jury found (1) that the cashier of the bank told (promised) Guthrie that before proceedings were begun to foreclose the deed of trust, he (Guthrie) would be further notified; (2) that Guthrie relied upon the statement as made, and (3) that the market value of Guthrie’s 7/16ths interest in the leasehold on April 5, 1938 (date of sale) was $3,500. Guthrie admitted upon the trial that on date of sale an unpaid balance of $1,136.70 was due on the note.

The trial court rendered judgment refusing cancellation of the conveyances and denying plaintiff any relief against Robert, but judgment was rendered in favor of the plaintiff against the banking commissioner for -the sum of $2,363.60, the difference between what the jury found the value of the property to be on April 5, 1938, and the appellant’s admitted unpaid balance.

Guthrie appeals from the judgment denying him cancellation of the deeds in question, and the banking commissioner appeals from the money judgment in fav- or of Guthrie.

We first consider the assignments addressed to that portion of the judgment denying the plaintiff any relief as against Jack B. Robert who later purchased the property from the bank. The appellant’s first proposition is that the sale by the trustee passed no title because the bank violated its promise and agreement to notify the appellant before beginning any foreclosure proceedings, and that since the appellant relied upon said promise to his injury, the trustee’s sale passed no title. The second proposition is, in substance, that since the bank acquired no title, having caused the sale and bid in the property in violation of said agreement, the appellee Robert was put on notice of all the infirmities in the bank’s title, and, in any event, was charged with notice of any infirmity in the trustee’s sale because of a recital in the deed, namely: “ * * * and being the same property and only the same property conveyed to the grantor herein by the trustee’s deed from R. M. Wagstaff, trustee, to the Farmers State Bank in Merkel, dated April 5, 1938 * * * ”

There is no merit in the contention that the debt had been paid off when the trustee advertised and sold the property. The appellant agreed upon the trial that there was an unpaid balance of $1,136.70.

The record discloses that the holder of the note made proper request of the trustee to advertise and sell the property. It shows (by agreement of the parties) the trustee in making the sale complied with all the terms and conditions of the deed of trust which was itself in the usual and customary form.

We are of the opinion that the above and other undisputed facts conclusively show that the effect of the trustee’s sale was to place the legal title to the leasehold in the purchasing bank. On proper allegations and proof of the oral promise or agreement, its violation, etc., doubtless the sale could have been set aside and the deed canceled by the mortgagor so long as the title remained in the mortgagee bank. Nevertheless, if the title thereafter passed from the bank to a bona fide purchaser for value without notice, such conveyance could not be set aside on account of such alleged promise or fraud, if any. John Hancock Mut. Life Ins. Co. v. Howard, Tex.Civ.App., 85 S.W.2d 986 (4-6); Ward v. Scarborough, Tex.Com.App., 236 S.W. 434, 440; Schneider v. Sellers, 98 Tex. 380, 84 S.W. 417; Silverman v. Landrum, 19 Tex.Civ.App. 402, 47 S.W. 404.

Evidently the purchaser at such trustee’s sale, although made in violation of a parol agreement to extend the time of payment, etc., acquires such title as will support the plea of subsequent innocent purchaser. The inquiry now is, Was ap-pellee Jack B. Robert an innocent purchaser within the meaning of that term ? Houston Oil Co. v. Hayden et al., 104 Tex. 175, 135 S.W. 1149. The trustee’s deed recites default in the payment of the note, the request by the holder of the note to the trustee to sell the property, the giving of notice, sale, description of the land and full compliance with the terms thereof. The deed was executed, promptly filed and recorded in the deed records of Jones County. Said Robert purchased the property from the bank on August 26, 1938, paid a valuable consideration therefor, without any notice of the bank’s promise to Guthrie to extend the time of payment of the note. From the standpoint of Robert, and in all the above respects the transaction was regular and in good faith, unless he is to be charged with notice of some infirmity in the transaction or title to the property by reason of the alleged quit claim nature of the deed from the bank to him. After a careful study of the'contents of this deed, it is our opinion that Robert is entitled to the protection accorded a bona fide purchaser for value without notice. In our opinion, the deed is not to be construed as a mere quit claim deed. The test by which to determine the nature of such instrument is well stated in 66 C.J. 1101, as follows: “Whether the conveyance is a quit claim or not is dependent upon the intent of the parties to it, as that intent appears from the language of the instrument itself. If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the strict sense of a quit claim deed and will not sustain the defense of innocent purchaser. If it appears that it was the intention to convey the land itself, then it is not such quit claim deed, although it may possess characteristics peculiar to such deeds and the purchaser is entitled to the protection of a bona fide purchaser.” (Italics ours.)

The bank’s deed to Robert contains a granting clause reciting: “have granted, sold and conveyed * * * all that certain property described as follows: an undivided 7/16ths interest in the leasehold.” The habendum clause recites: “To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Jack B. Robert, his heirs and assigns forever; audit does hereby bind itself, its successors * * * to warrant and forever defend all and singular the said premises unto the said Jack B. Robert, his heirs and assigns against every person whomsoever lawfully claiming "or to claim the same or any part thereof by and through or under it.”

In the light of the foregoing excerpts and the contents generally of the deed, we are of the opinion that the expression found in the deed, namely, “and being the same property and only the same property conveyed to the grantor herein by trustee’s deed from R. M. Wagstaff, trustee” does not have the effect, as contended by appellant, to make the deed to Robert a mere quit claim deed. It merely described or identified the land conveyed.

The stipulation is not a limitation on the conveyance to merely such title as the bank held, but was intended to emphasize that the bank’s full interest in the land was granted, as held by the Supreme Court in Nichols v. Schmittou, 107 Tex. 54, 174 S.W. 283, 284, construing a similar deed. In that opinion it is also said: “A deed which purports to convey the full interest of the grantor in the land described is plainly distinguishable from a mere grant of a title, whatever it may be.” (Italics ours.) Other authorities in point on the construction we give the deed are Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67, 15 Am.St.Rep. 850; McCreary v. Reliance Lumber Co., 16 Tex.Civ.App. 45, 41 S.W. 485, writ refused; Benton Land Co. v. Jopling, Tex.Com.App., 300 S.W. 28; Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Silverman v. Landrum, 19 Tex.Civ.App. 402, 47 S.W. 404; Leal v. Leal, Tex.Com.App., 14 S.W.2d 797.

From what has been said it follows that the judgment as to Robert is correct.

We now notice the assignments addressed by the banking commissioner, Gossett, to the money judgment against him in favor of Guthrie. Attention has been called to the plaintiff’s trial pleading (paragraph II) being trespass to try title in the usual form followed by paragraphs specially alleging the origin and nature of plaintiff's right or claim to the property and admitting that he mortgaged the same to secure a debt, much of which remained unpaid at the time of the trustee’s sale, etc. The allegations pertaining to damages have been set out and must now be borne in mind.

We have given much consideration to this record with a view of ascertaining clearly the theory upon which the money judgment was rendered in favor of Guthrie. If that judgment is to be sustained upon the theory" that the bank promised and agreed not to foreclose its lien through trustee’s sale without giving further notice, then it would appear quite certain that the basis for such judgment is the fraudulent promise referred to and violated as alleged. There is not an allegation in the pleading, that at the time the promise was made the bank then had no intention of fulfilling or complying with the same. The mind and intention of the parties in this respect at that time was a material fact. As said in King v. Wise, Tex.Com.App., 282 S.W. 570, 571, 573, “The mere fact of failure or refusal to perform the oral agreement is not sufficient to raise the issue of fraud * * Citing the well known authority Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St.Rep. 39. As said in 20 Tex.Jur. p. 33, sec. 16, “In order for a promise to constitute fraud it is necessary that it should have been made with the intent at the time that it would not be performed, and with the intention, design and purpose of deceiving.” The text cites many leading authorities in support of this proposition. The pleadings in the respects noted are believed to be insufficient basis for the money judgment. See 20 Tex.Jur. p. 162, sec. 110 et seq.

Aside from any lack of allegations of the element of a fraud case, as just discussed, we do not find any allegations in the petition for special damages predicated on the violation of the oral promise to indefinitely postpone the payment of the note. The pleadings are insufficient to form the basis of recovery on any such theory. Facts not alleged, although proved, cannot form the basis of a judgment and the converse is true. Brewton v. Butler, Tex.Civ.App., 12 S.W.2d 228, and Benson v. Ashford, Tex.Civ.App., 189 S.W. 1093. The rule employed is stated and applied in Bailey v. Mann et al., Tex.Com.App., 248 S.W. 469; Kenney v. Bailey, Tex.Civ.App., 27 S.W.2d 254; Broussard v. Mayumi et al., Tex.Civ.App., 144 S.W. 320. Upon these considerations the money judgment in favor of the plaintiff was erroneously granted.

We have endeavored to meet all the issues presented by this record, giving it a liberal construction, but we are much constrained to view Guthrie’s theory of recovery as being one strictly in trespass to ti-y title without any purpose to recover the difference between the value of the land and the unpaid balance on the note at the date of sale. This thought is due not only to the required construction of the pleadings, as we view them, but to the plaintiff’s interpretation thereof as indicated in his brief by the following statement: “Of course, this suit was essentially a trespass to try title suit.” Any such understanding of the pleadings would naturally minimize or disregard any elements of damage. The thought just expressed is also consistent with what we discover in following the trial through the pleadings and testimony. In the statement of facts Guthrie’s attorney stated to the trial court “Our position is, your honors, that he (Roberts) cannot be an innocent purchaser of property sold at trustee’s sale.” In line with that theory, the appellant states in the concluding paragraph of his reply brief, “We think that under the law of Texas no purchaser under a deed of trust sale, or with a deed of trust sale in the chain of his title, can be an innocent purchaser, and therefore this judgment should be reversed and rendered as against Robert(Italics ours.) In the light of this record, we overrule such contentions and any propositions based thereon.

For the reasons assigned, the judgment of the trial court as to Robert is affirmed, and the judgment in favor of Guthrie against Gossett, banking commissioner, is reversed and the cause remanded. Williams v. Safety Cas. Co., 129 Tex. 184, 102 S.W.2d 178. The judgment is affirmed in all other respects.


text:
    BRAZOS RIVER CONSERVATION & RECLAMATION DIST. et al. v. COSTELLO et al.
    No. 2121.
    Court of Civil Appeals of Texas. Eastland.
    July 3, 1940.
    Rehearing Denied July 19, 1940.

      John D. McCall and Millard Parkhurst, both of Dallas, Samuels, Foster, Brown & McGee, of Fort Worth, L. D. Hawkins, of Breckenridge, Strasburger, Price, Holland, Kelton & Miller, of Dallas, and T. T. Boul-din, of Mineral Wells, for appellants.
    Ritchie & Ritchie, J. R. Creighton, and W. H. Penix, all of Mineral Wells, for appellees.
   FUNDERBURK, Justice.

E. P. Costello and other property owners brought this suit against Brazos River Conservation and Reclamation District, the Directors thereof, and others, seeking to enjoin, first, temporarily and upon final hearing, permanently, the flooding of plaintiffs’ lands and other property, or permitting same to be done, by closing openings in the Possum Kingdom Dam on the Brazos River left temporarily for the purpose of avoiding such effect during the construction of said dam.

Briefly stated, the ground of relief sought was that such lands and other properties would, upon the threatened closing of said openings, thus effecting the completion of the dam, flood and inundate said properties, thereby constituting a taking thereof for public use without the consent of the owners, and without payment for, or condemnation of, said property.

After temporary injunction had issued, the court, overruled a motion to dissolve it, following a hearing of evidence limited t® a question of the value of said properties, supplemented by a stipulation of the parties adopted as a finding of fact by the court that “at the time of the issuance of the temporary injunction on March 6, 1940 the several plaintiffs were the owners of and in actual physical possession and occupancy of their several properties as described in the original petition herein, and that the defendant Brazos River Conservation and Reclamation District had not acquired said properties, or any of them, by purchase or condemnation, and that said district was not at said time, or at any time prior thereto, and is not now, in actual physical possession of. said properties, or any of them, and has not since the issuance of said injunction acquired by purchase or condemnation, or otherwise, any of said properties. That at the time of the issuance of said writ of temporary injunction, the defendant district and its co-defendants had practically completed the dam * * * except for certain temporary openings left in said dam for the purpose of permitting the waters of the stream to flow through said dam during the period of construction, and at the tirqe of the issuance of said temporary writ of injunction said defendant district and its codefendants were engaged in the work of closing said openings; and that as the result of the closing of such openings, the lands and properties of the plaintiffs would have been flooded and inundated and covered by the waters of the reservoir impounded by the said dam; and that the closing by said defendants of such openings at this time, or at any time hereafter, will result in the flooding, inundating and covering of the said properties by the waters of said reservoir.”

The court, solely upon the conclusion that R.S.192S, Art. 3269, as amended, Vernon’s Ann.Civ.St. Art. 3269, was not applicable, overruled the motion (two motions by different defendants) to dissolve the temporary injunction, thereby continuing it in effect.

The judgment also declared that in the event upon appeal it should be determined that said district is entitled to dissolution of the injunction, conditioned upon the deposit of money, or that the defendant district is entitled to maintain its cross-action for condemnation then “the court finds from the evidence introduced herein relating to values of the property that as a prerequisite to. the dissolution of said injunction said District shall pay into the registry of the court, or depository to be designated by the court, the sum of $500,000 for the security of the parties” in the various sums stated. From such order the defendants have appealed, and, upon motion, the submission has been advanced.

Under the evidence and the findings based upon stipulations of the parties, it appears that the occasion for bringing this action was that the properties of the plaintiffs were threatened with being taken for public use, without the consent of the owners, and without having been either purchased or condemned. In McCammon, etc., Lumber Co. v. T. & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247, 248, 36 L.R.A.,N.S., 662, Ann.Cas.1913E, 870, concerning certain action involved in that case, it was said that if such action “will constitute a taking, the facts that it is without consent and that compensation has not been made render it unlawful, so that the property owner has the right to prevent it by injunction.” When a person’s property is threatened with being taken for a public use, it makes no difference whether such public use is for the State or not, as affecting the right to an injunction by the owner of the property,_ when such owner has not consented to its taking and the property has been neither purchased nor condemned. Condemnation, when necessary to a lawful taking, implies some prescribed procedure complying, among other things, with Art. I, sec. 19, of the Constitution of Texas, Vernon’s Ann.St., declaring that no citizen shall be deprived of property except by “due course of the law of the land” and with the Fifth Amendment to the Constitution of the United States, forbidding that persons “be deprived of * * * property, without due process of law” or that “private property be taken for public use, without just compensation.”

There is no question presented of the Legislature’s having attempted to authorize a taking of the property contrary to limitations imposed by constitutional provisions, except with reference to the provisions of Vernon’s Ann.Civ. Statutes, Art. 3269. The Constitution, art. 1, § 17, plainly provides that “No person’s property shall be taken * * * for * * * public use without adequate compensation being made, unless by the consent of such person”; and that provision, it is believed, is not qualified by any other.

In determining the necessary condemnation procedure applicable to the properties in question, the following statutory provisions must be considered: (1) Section 13a, Acts 1934, 43d Leg. 4th c. s., p. 3, ch. 3, as amended by Acts 1935, 44th Leg. 1st c. s., p. 1527, ch. 368, Vernon’s Ann.Civ.St. title 128, c. 8 note; (2) Vernon’s Ann.Civ.Stat-utes, Art. 8197f; (3) R.S. 1925, Arts. 3264, 3268 and 3269, as amended, Vernon’s Ann. Civ. St. Arts. 3264, 3268 and 3269. Without quoting said provisions, but merely stating their effects as material to the question under consideration, we may say that said sec. 13a, a part of the Act creating the Brazos River Conservation and Reclamation District, confers generally the right of eminent domain to be exercised “in the manner provided by General Law with respect to condemnation, or at the option of the district, in the manner provided by Statutes relative to condemnation by Districts organized under General Law pursuant to Section 59 of Article 16 of the Constitution of the State of Texas.” It is further provided that “In condemnation proceedings, being prosecuted by said District, the District shall not be required to give bond for appeal or bond for costs.”

Said Vernon’s Ann. Civil Statutes, Art. 8197f, relates to Conservation and Reclamation Districts, but applies exclusively to cemeteries and burial grounds. This is inapplicable to the facts here involved and we mention it only as being so far as we can find the subject referred to in the language above quoted, namely, “Or at the option of the district, in the manner provided by Statutes relative to condemnation by Districts organized under General Law pursuant to Section 59 of Article 16 of the Constitution of the State of Texas.” It must be admitted, however, that the reference is not apt; but if there be other statutes referred to none such have been cited as authority in this case, nor have we found any.

Revised Statutes, 1925, Art. 3264, as amended, Vernon’s Ann.Civ.St. Art. 3264, provides the familiar procedure for condemnation, consisting of an application for, and appointment of, commissioners, notice, hearing, award, etc. Article 3268 applies alike to the State, municipal subdivisions, persons, and corporations, except that “The State, a county, municipal corporation, irrigation district, water improvement district or water power control district created under authority of law, shall not be -required to deposit a bond or the amount equal to the award of damages by the Commissioners as provided in Section 2 hereof.” Plainly this exception does not affect the requirement of section 1 that the condemnor shall pay to the defendant the amount of damages awarded or adjudged against it by the commissioners, or deposit the same in money in court subject to the order of the defendant, and also pay the costs awarded against it. Whether under Constitution Art. 1, sec. 17, the Legislature would have the power wl^en one’s property is taken for the use of the State to exempt the State, or municipal corporation, or state agency representing the state, from paying the amount of an award or depositing the amount thereof in court before the property is taken, is a question not necessary for us to determine. The fact is that the condemnation procedure which has been provided by the Legislature makes no such exemption, but provides to the contrary. Art. 3268, supra. In regard to the power of the Legislature with reference to such exemption, it was said in Travis County v. Trogdon, 88 Tex. 302, 307, 31 S.W. 358, 359, 360, that “it [the Legislature] may not deem it proper to exercise such power, but may require payment in advance, as in-other cases, or may require payment in advance on condition that the owner will accept the compensation fixed by the commissioners’ court.”

We have no doubt that under the plain provisions of said Art. 3268, as interpreted in the case cited, if condemnation had been sought in the regular way, said District would have had to pay or deposit the amount of the award of the commissioners as a condition upon its right to take such properties for public use, even for use of the State.

Having reached the conclusion that there was no error in the action of the court in refusing to dissolve the temporary injunction insofar as that question could be affected by the laws prescribing the applicable condemnation procedure generally, we pass now to consider whether the trial court, independently of that procedure, was authorized in response to defendants’ cross-action to adjudge condemnation of the properties under authority of said Art. 3269.

But, first answering a contention of the appellants, we may say we fail to see any substantial basis for a distinction between a county and the Brazos River Conservation and Reclamation District as affecting the question of whether the taking is for the use of the State, rather than merely for a public use. It seems to be settled that the taking of property for a public road in an action instituted by a county is a taking for the use of the State. Travis County v. Trogdon, supra. The objects and purposes declared in the Act creating said District, and the declaration therein that it is a governmental agency seem to leave no escape from the conclusion that such taking'is for the use of the State.

Whether said Art. 3269 is applicable as authority to authorize condemnation in this suit is a question of some difficulty involving also, if applicable, the further question of its validity. ‘ The article reads thus: “When any person, or corporation, or district, or association of persons having the right of eminent domain are sued for property or for damages to property occupied by them or it for the purposes for which it or they have the right to exercise such power, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of property and assessment of damages, upon petition or cross-bill asking such remedy by defendant, and such petition or cross-bill asking such relief shall not be an admission of the plaintiff’s title to such property, and in such event the con-demnor may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; and provided that, if in-junctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity or may, as a prerequisite for denying such relief, require defendant to give such security as the Court may deem proper for the payment of any damages that may be assessed on defendant’s cross-bill for condemnation.” ,

If applicable and valid this statute provides a procedure for condemnation complete in itself, and alternative to that provided in the preceding Articles 3264 to 3268, inclusive. Prior to an amendment in 1931 said article 3269 read as follows: “When those having the right of eminent domain are sued for property or for damages to property occupied by it for the purpose for which it has the right to exercise such power, the court in which such suit is pending may determine all matters in dispute between the parties, including the condemnation of property, upon petition or cross-bill asking such remedy by defendant, but the plea for condemnation shall be admission of the plaintiff’s title to such property.” R.S.1925, Art. 3269.

The first inquiry is : What is meant by the words “such property” in the clause “or when a suit is brought for an injunction to prevent them or it from going on .mch property or making use thereof for such purposes” etc.? (Italics ours.) The only previous use of the word property, it is to be observed, is limited by the words “occupied by them or it.” It would be entirely clear that by the words, such property, reference was intended to “property occupied or used by” the defendant, but for the statement indicating the nature of the injunction as being (1) to “prevent them or it from going upon” the property, or (2) “making use thereof.” The question thus suggests itself: Why speak of enjoining a person or district, etc., to prevent his or its going upon or making a particular use of property already occupied by the defendant for the purpose of such use ? On the other hand, if it was intended to make the injunction provision available in cases where the property was not occupied by the defendant, the word such would seem to be meaningless, an effect to be avoided, if possible. As a modification of the word property it could not refer to “property sued for”, or for injury to which damages are sued for, because an injunction would be in lieu of, and complete substititution for/ a suit for the property or for damages to the property. The only other thing the word such could refer to would be “property occupied” by the defendant. There is, therefore, presented, to say the least, an ambiguity in the words “such property.”

If an owner of property in the possession thereof finds it suddenly occupied by a naked trespasser, such as a person or corporation having the power to condemn it, but who, without the owner’s consent and without purchasing or condemning it, has taken possession of it would undoubtedly be, is his only remedy a suit for the property or damages to the property? Would he not, in lieu of any such action, be entitled to an injunction to rid his property of further occupancy by the trespasser, or of use for the purposes which the trespasser has the right to condemn it but has not done so? We think such a remedy .would exist. At least, in some cases, as where there has just begun an occupancy, or use of the property for a purpose for which it could be condemned, which works no destruction of the property, nor subjects it to any material damage, we think an injunction would be available to the owner “to prevent [the trespasser] * * * from [further] going upon such property” or “making use thereof for such purposes.” In such case, the remedy by injunction, we think, would be practically the equivalent of the other actions to recover the property or damages to the property. An unlawful entry of a trespasser upon land, in possession of the owner, does not necessarily work a dispossession of such owner. Hence, we think, it cannot be said that there is any fatal inconsistency in construing the words “such property” as referring to property occupied by the defendant agreeably with the natural purport of the language.

Before said 1931 amendment of R. S.1925, Art. 3269, its sole application was to suits for property and suits for damages to property occupied by a defendant who, possessing the power of eminent domain, was occupying the property for such purposes. That procedure was evidently designed for cases in which the occupancy by the defendant was under some claim of right, such, for example, as where the defendant had purchased the land from a third party, or had condemned it as the land of a third party, or prior condemnation proceedings were for some reason claimed to be void, etc. It is clear from a reading of the statute that a condemnation of the property in the suit was only a part of “all matters in dispute between the parties” which the court was authorized to determine. When by said amendment injunction was included with said other actions, the court was.still authorized, -as before, to determine the matters in dispute between the parties, including condemnation of property and assessment of damages. Provision was made permitting the condemnor to “assert his or its claim to such property” and .to “ask in the alternative to condemn the same if he or it fails to establish such claim” without (as formerly) being bound by such action to an admission of plaintiff’s title to the property. It seems to us, not an unreasonable interpretation of the statute, that by the amendment of 1931 it was intended merely to extend the former law to include actions for injunction, but as affecting the same subject matter and under the same conditions, namely, property occupied by the defendant presumably under some claim of right thereto for purposes for which the right of defendant to a condemnation of it existed.

On the other hand, if the purpose of the amendment was to permit condemnation independently of the fact of occupancy by the defendant, or under circumstances such as exist in this case, there would seem to be little reason ever to resort to the most usual procedure provided by law for such purpose. The statute, it is to be observed, is by its terms -applicable alike to all persons, corporations, or governmental agencies having the power of eminent domain. Why, it may be asked, should an electric light corporation, of private ownership, institute numerous condemnation proceedings when by 'advertising its purposes to take property without purchase or condemnation of same it could, by such threat of -a naked trespass, practically force actions against it for injunction and therein procure condemnations unhampered by any such restrictive provisions, such as that upon an award being made the condemnor must pay or deposit the amount of the award, and additional thereto, an. amount equal to the award, plus costs ?

In such a suit what would constitute the matters in dispute? What dispute exists to be litigated between the owner of property and even the State itself, merely threatening to take such property without the consent of the owner, and without even an offer to pay anything therefor, or to procure its condemnation? It seems to us in such case there is utterly lacking any such matters in dispute as are contemplated by the terms of the statute. Whether the suit be one for the recovery of property, or of damages thereto, or for an injunction to enforce the right of the owner to preserve it from trespassers, the statute contemplates, we think, some character of occupancy by the defendant and some matter of dispute other than the right of the defendant to have the property condemned.

We are of the opinion that such interpretation of the statute is required for another reason. If the statute applies to a situation where the defendant has acquired no apparent rights in the property, such as an occupancy thereof for a purpose for which it possesses the power of eminent domain, and, where, therefore, as we think, there exists no matter in dispute between the parties requiring litigation, the statute would, we think, be void because of the absence of any provision constituting due process of law by which the property owner is to be certainly compensated for the taking of his property. In Buffalo Bayou, B. & C. Ry. Co. v. Ferris, 26 Tex. 588, it was said that “The language of the constitution most certainly indicates that the taking of private property, and the making ,of compensation, shall be concurrent acts.”' That was said in reference to the provisions of a former constitution, but a distinction even then was recognized between a taking for the use of the state and a taking for a public purpose by private interests, not considered as being inconsistent with the proposition above quoted. It was further said: “The property must be paid for when taken, or within a reasonable time thereafter; and the making of compensation must be as absolutely certain as that the property is taken. * * * The State is as impotent as an individual to take private property for any purpose without the owner’s consent, unless- adequate compensation is made for it.” It was further said: “Nor is it any answer to this proposition to say that the taking of his property is not illegal, because the constitution has guaranteed to him compensation for it, and the legislature is bound to secure it to him, and this may be done by a future act. But is the obligation, we may ask, to make him compensation any stronger upon a future legislature than it was on that one by whose authority his property has been taken; and if it has failed to make a constitutional provision for his compensation, what assurance can he have that any future one will do so ? It was, however, to place the rights of property upon higher grounds than the mere legislative sense of justice and equity, that this prohibition upon legislative power was embodied in the bill of rights.”

We have quoted from this decision to-show the background of our present constitutional provision on the subject — Art. 1, sec. 17, of the Bill of Rights. In Travis County v. Trogdon, supra, decided under the present Constitution, it was pointed out that prior to the present Constitution the former constitutional provision had been construed “as not requiring payment to be made before or at the time of the taking of the property in either class of cases.” The reference was to property taken by private concerns for public use and property taken for the use of the State. It was said that such construction of the constitutional provision had been adopted by the Supreme Court “with the qualification that, at the time of taking the property, adequate provision must be made to insure the speedy payment of the compensation.” (Italics ours.)

Considering said Art. 3269 as providing an independent procedure for the condemnation of property, we may pertinently inquire: Does it make adequate provision to insure the speedy payment of compensation? If so, it is in the provision that “if injunctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity, or may, as a prerequisite for denying such relief, require defendant to give such security as the Court may deem proper for the payment of any damages that may be assessed on defendant’s cross-bill for condemnation.” One provision of the Bill of Rights is that “every person for an injury done him, in his lands, goods [etc.] shall have remedy by due course of law.” Art. 1 sec. 13. But the Legislature in the article of the statutes in question undertakes to vest in the court the option or discretion of denying relief to which the citizen is clearly and certainly entitled and. in lieu thereof and as a condition of denying such relief “require defendant to give such security as the Court may deem proper for the payment of any damages that may be assessed on defendant’s cross-bill for condemnation.”. Again let us be reminded, this article of the statutes purports to make no distinction between the condemnation of property for the use of the State and for a public purpose of a business corporation. Does the above constitute adequate provision to insure the speedy payment of compensation? We think not. The court may consider the solvency of the corporation to be sufficient security. It may exercise its discretion in different and unpredictable ways. The law itself, in order to provide due process and effectuate the requirements of the several provisions of the Bill of Rights should prescribe what shall constitute the required security for the payment of the damages assessed, or certainty of speedy payment, and not leave it to the uncertainties of the court’s discretion.

It is our conclusion that there was no error in the action of the court in overruling the motion to dissolve the temporary injunction, or in the conclusion that said Art. 3269 was not applicable to authorize a condemnation of the properties in this suit.

In our opinion the judgment should be affirmed, and it is so ordered.