author: WALTHALL, Justice.

text:
    MOORE v. HAYES.
    No. 3988.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1940.
    S. L. Gill, of Raymondville, and Willis E. Gresham, of Austin, for appellant.
    Jesse G. Foster, of Raymondville, for appellee.
   WALTHALL, Justice.

This appeal is from an order of the County Court of Willacy County, overruling the plea of privilege of Austin Moore, receiver of Casualty Underwriters, to be sued in Dallas County. The suit was originally filed by M. F. Hayes against said Austin Moore, receiver, in the Justice Court of Precinct No. 1 of Willacy County, and was an action for the cancellation of a note .for alleged fraud in the procurement of the execution of such note. Austin Moore, receiver, seasonably filed his plea of privilege in the Justice Court, and the same was controverted by the plaintiff. The plea of privilege was overruled by the Justice of the Peace, and the case was removed to the County Court by the filing of an appeal bond.

Appellant assigns as error that the plaintiff (appellee here) having the burden of establishing the falsity of the alleged fraudulent representations, and having wholly failed to prove the falsity of the alleged fraudulent representations, and having wholly failed to prove an element of actionable fraud, the trial court should have sustained the plea of privilege.

On May 9, 1937, appellee executed the note on which this suit is brought in the sum of $115.45, made payable to the Casualty Underwriters, and became due and payable on August. 15, 1938, at Dallas, Texas.

In securing the execution and delivery of the note the Casualty Underwriters was represented by an agent or representative, and in the record referred to as a salesman. The agent went to see appellee about executing the note at appellee’s gin in Raymondsville, Willacy County, Texas, at which place the note was executed, and at which place all the conversations and al-léged false and fraudulent representations with reference to the execution of the note took place.

Plaintiff Hayes did not remember the agent’s name, but said he was with the Casualty Underwriters. Plaintiff told the agent that his (plaintiff’s) dealings (securing insurance for his employees) were through I. B. Lee, and that he would see Lee. Later the agent came to the gin with Lee. The agent then made statements with reference to the financial standing of the Casualty Underwriters .and had with him a financial statement from the Company which witness said “showed good,” and the agent also had a letter from the State Board of Insurance or Commission at Austin, and showed the letter to- plaintiff. The letter was to the effect that the Company had authority to do business (insurance) in Texas.

The agent said, in answer to plaintiff’s question, that he would be located in Har-lingen, at the Madison Hotel, during the ginning season, and that if anything came up he would come right down and take care of everything, if he (plaintiff) would “give him a ring.” He told appellee “the Company was solvent and in good financial condition.” He had, Hayes said, no re'ason to believe otherwise, and relied upon what the agent told him, took the insurance and executed the note in question. Later two cases of injury occurred at the gin and Hayes made inquiry and tried to get in touch with the agent but could not find him, and sent in the report (of the injuries) himself to both the Casualty Underwriters and to the State Board.

The point made in the statement of facts is, that there is no evidence that the Casualty Underwriters was not solvent at the time the policies were issued and the note signed for the premium; nor is there any proof the Company was not authorized to do business in Texas. The only evidence of the representation that the agent would be in Harlingen was Hayes’ attempt to get in touch with the agent and said: “I couldn’t find him and I went ahead and sent in the reports myself.”

Appellant is the receiver of the Casualty Underwriters. He resides at Dallas, in Dallas County, Texas, and the note is payable in Dallas.

In view of King v. Wise, Tex.Com.App., 282 S.W. 570, and Miller Mfg. Co. v. Provine, Tex.Civ.App., 17 S.W.2d 128, we will consider only the representation charged to be false and fraudulent and made as an inducement to the making of the note. It is the representation as to the solvency of the Company.

Is evidence of the insolvency of the Company at a time subsequent to the making of the note sufficient to show insolvency at the time the note was made ?

In Collins v. Chipman, 41 Tex.Civ.App. 563, 95 S.W. 666, 669, Judge Neill, of the San Antonio Court of Civil Appeals, said: “If it be shown that in May, 1905, a corporation which was in January, 1902, represented by its president as being in a prosperous condition, paying from its net earnings annual dividends of 20 per cent, upon its capital stock, is found to be out of business and practically without assets, when it is questionable whether any cause has been shown for such an overwhelming disaster, can it not be inferred from such facts, taken in connection with others, that such representations were not true, but that its depleted condition in 1905 was but an index of its condition in 1902? Such testimony certainly tends in some degree to show such representations were not true.” Judge Neill said that the degree of its probative force was for the jury. A writ of error was dismissed.

In Peters v. Strauss et al., 63 Tex.Civ.App. 118, 132 S.W. 956, 957, Judge Dunklin, of the Fort Worth Court of Civil Appeals, said: “It is well settled in this state that misrepresentations of a material character, although innocently made, will furnish a valid ground for rescission of the contract in a suit by the party deceived,” and referred to Collins v. Chipman, supra; Culbertson et al. v. Blanchard, 79 Tex. 486, 492, 15 S.W. 700, and other cases.

In Oakley v. Hargrove, Tex.Civ.App., 125 S.W.2d 403, appellant plead fraudulent representations as fact statements. and not as mere expressions of opinion. The Beaumont Court held that the representations constitute actionable fraud, and referred to cases to which we refer without quoting.

The falsity of the statement of solvency, like any other fact, may be shown by circumstances. The fact that appellant was in the hands of a receiver and unable to discharge its obligations is evidence, we think, of insolvency, and as said in the Collins v. Chipman case, supra, the probative force of such evidence was for the court hearing the plea.

We think the court was not in error in overruling the plea of privilege.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    RAILROAD COMMISSION et al. v. DYER et al.
    No. 8964.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1940.
    Gerald C. Mann, Atty. Gen. and Geo. W. Barcus, Tom D. Rowell, Jr., and Ocie Speer, Asst. Attys. Gen., for plaintiffs in error.
    No- briefs filed for defendants in error.
   BAUGH, Justice.

The issues presented on this appeal by writ of error arose as follows: In 1936 Joe Dyer, doing business as the Ozozo Refining Company, sued the Railroad Commission and others to restrain them from interfering with his sale and transportation of about 160,000 barrels of oil in storage in Rusk County; and to compel the Commission to issue to him tenders for such oil. The State intervened, alleging that all of said oil was illegal oil, asked that it be confiscated and sold, and the proceeds therefrom paid into the State Treasury. Numerous parties to the State’s intervention were impleaded and cited. Final judgment was rendered after a trial on the merits in that- suit on November 18, 1936, denying Dyer any relief, and confiscating numerous separately-described quantities of oil, among them 38,530 barrels located in tank No. 1 of the McMurrey tank farm. Appeal was prosecuted from that judgment by writ of error, the trial court’s judgment affirmed by this court on February 23, 1938 (see 115 S.W.2d 1020), and application for writ of error dismissed by the Supreme Court on October 26, 1938.

Meantime, however, by consent decree on the issue of a supersedeas bond on appeal to this court, the trial court on January 19, 1937, ordered all of said oil sold, the proceeds to be paid into the registry of that court, there to be held until final disposition of the appeal, and if such judgment be affirmed that moneys realized from such sale, less expenses, be paid into the general funds of the State. The oil, specifically described, was sold at 98 cents per barrel and the funds, totaling $156,000, were paid into the registry of the court.

After all these proceedings were had, but before the return of the mandate from this court to the trial court, the defendant in error here, the McMurrey Petroleum Corporation, which had not been a party to any of the former proceedings, filed in the trial court on December 12, 1938, an unverified motion in which it, for the first time, asserted that it owned tank No. 1 on the McMurrey tank farm; that it owned 5,722 barrels of 38,530 barrels of oil confiscated and sold by the State from that tank, and prayed that the court order the clerk to pay to it $5,607 of the funds still in the registry of the court. None of the parties to the original proceedings were cited on this motion. The Attorney General filed an answer to said motion in which he, in effect, advised the trial court that the State did not know anything about the facts alleged in the motion and prayed the court to make “such inquiry as is pertinent, and that such orders be entered as the facts and justice warrant.” The trial court thereupon entered his order on December 12, 1938, the same day the motion was filed, based upon findings that the facts alleged in said motion were true, and ordered the clerk to pay. to McMurrey Petroleum • Corporation out of said funds the sum of $5,607.56. It is from this order that this appeal was taken by writ of error. The defendant in error has filed no brief herein.

It is clear, we think, that the trial court had no power on December 12, 1938, more than two years after rendition of the final judgment of November 18, 1936, to then modify that final judgment which had been affirmed on appeal. That is true regardless of what character defendant in error’s pleading of December 12, 1938, designated as a motion, be considered to be.

Clearly, if the facts alleged in said so-called motion were true, the defendant in error had the right to have intervened in the original suit and assert its rights. But if treated as a plea in intervention, asserting title to a part of the subject matter of that suit, it manifestly comes too late when filed more than two years after final judgment had been entered disposing of all of the subject matter involved in the suit. See 32 Tex.Jur. § 35, p. 59, and cases cited; Mast v. Shipp, Tex.Civ.App., 123 S.W.2d 980.

If deemed a motion for new trial, it could not, when filed, have been considered under Art. 2232, R.C.S., and numerous decisions; not having been filed until several terms of court had expired after entry of final judgment, and then by one who was not a party to the suit.

Nor does such so-called motion meet the essential requirements of a bill of review prescribed by Art. 2236', in that it was not verified, not filed within two years after final judgment, and none of the parties to the original judgment were shown to have been cited.

We think that defendant in error’s pleading partakes more of the nature of a motion to modify the final judgment of the court entered on November 18, 1936, than anything else. And if so treated, the trial court was clearly without power to grant the relief prayed for. That relief necessitated, as the trial court undertook to do, a revision and alteration of a final judicial determination of all the issues involved in the suit. It was in no sense an effort to correct a mistake or misrecital in the judgment, clerical or patent in nature, as authorized by Arts. 2228 and 2229, R.C.S. It was clearly an attempt to change a final judgment long after expiration of the term at which it was rendered, on the ground that the court had wrongfully adjudicated the issues involved in the original suit. This the court was clearly without power to do. Arrington v. McDaniel, 119 Tex. 148, 25 S.W.2d 295; Jones v. Bass, Tex.Com.App., 49 S.W.2d 723; 25 Tex.Jur. § 128, p. 521; § 152, p. 548.

Or, if said so-called motion be deemed a plenary suit, or equitable proceeding, predicated upon a wrongful act of the State in the sale of said oil; it could not have been maintained as attempted in the instant case. The State in its sovereign capacity had already, by final judgment, been awarded the proceeds from the sale of said property. A suit to recover a part of it by a third party, who was not a party to the original suit, would in essence be a suit against the State, which could be maintained only upon consent so to be sued, legally given. No such consent was shown.

It follows therefore that the order of the District Court of December 12, 1938, granting defendant in error’s motion, the result of which was to modify the final judgment of November 18, 1936, was void. The judgment of the trial court is reversed and judgment here rendered setting aside the order appealed from.

Reversed and rendered.


author: FUNDERBURK, Justice.

text:
    NATIONAL AID LIFE OF OKLAHOMA CITY, OKL., v. ALEXANDER et al.
    No. 2055.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 25, 1940.
    Chrestman, Brundidge, Fountain, Elliott & Bateman, of Dallas, for appellant.
    L. H. Welch, of Breckenridge, for appel-lees.
   FUNDERBURK, Justice.

W. A. Alexander and others (each suing for himself but joining to avoid a multiplicity of suits) brought this action against National Aid Life of Oklahoma City, Oklahoma, a corporation, asserting rights under a contract by which it was alleged the defendant had assumed policies of insurance held by the plaintiffs in the Mutual Life Insurance Company of Breckenridge, Texas. The defendant filed a plea of privilege to be sued in Tarrant County, the county of its alleged residence. By controverting affidavit plaintiffs sought to maintain the venue in Stephens County upon different grounds, including exceptions 23 and 28a to the general rule of venue, as prescribed in Vernon’s Annotated Civil Statutes, Art. 1995. In other words, the venue was sought to be sustained by the plaintiffs upon the grounds, among others, (1) that the action was one brought against a state-wide Mutual Assessment Company growing out of, or based upon, alleged rights or claims or loss or proceeds due, arising from or predicated upon policies or contracts made by the defendant, and (2) that defendant was a private corporation and had an agency or representative in Stephens County. Judgment having been rendered for the plaintiffs overruling the plea of privilege, the defendant has appealed.

Appellant has filed a formal suggestion referring to the opinion of this court in National Aid Life v. Mrs. Kate Self, 140 S.W.2d 606, and, construing that decision as holding, in substance, that “it was not necessary for the plaintiff to make proof of a cause of action where she relies upon subdivisions 23 and 28a of Art. 1995, R.S.” states that “appellant belie.ves that the identical question is involved in this case, and that the final result in the Kate Self case will control the decision herein.” The purpose of the suggestion is stated to be that appellant “desires to save the court the time that would be required in reading the Statement of Facts and Transcript and agrees that this case is governed by the same basic principles that are involved in the Kate Self case.”

This suggestion and agreement warrants our determining this case upon the assumption that under the pleadings and evidence the decision in the Self case is applicable.

We re-affirm the decision in said National Aid Life v. Self, supra, as decisive of said two questions of venue in this case, and also the further question that under said particular exceptions to the general rule of venue it is not necessary that the evidence show a cause of action against the defendant. As respects exception 28a, see also to the same effect National Aid Life Ass’n v. Driskill, Tex.Civ.App., 138 S.W.2d 238.

The appellant referring to recent cases dealing with the subject of “venue facts” says: “We have yet been unable to find that in any of these cases the evidence proved without controversy that no cause of action existed against the defendant.” Such authority, we think, is not wanting. The holding of the Supreme Court in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, is believed to be correctly stated by the syllabus writer in the Southwestern Reporter, thus: “Where plaintiff establishes his right to maintain venue where laid by alleging joint cause of action against two defendants and proving cause of action against resident defendant, such right is not altered if evidence upon hearing of plea of privilege affirmatively discloses that plaintiff had no cause of action, either joint or several, against nonresident defendant.” In Compton v. Elliott, Tex.Civ.App., 55 S.W.2d 247, all members of this court, as then constituted, were in agreement that the evidence showed conclusively that if the alleged crime which was the basis of the suit was committed, it was committed in Stephens County. Because the evidence did not show conclusively the commission of the alleged crime, thereby rendering the question one of fact, it was the majority view that the action of the court in sustaining the plea of privilege and transferring the case to Shac-kelford County implied a finding to the effect that the alleged crime had not been committed. Such majority view was sustained by the Supreme Court. 126 Tex. 232, 88 S.W.2d 91. Manifestly, since the suit was based upon the commission of a crime a finding that no crime was committed would at the same time show there was no cause of action. Yet, the cause was transferred for trial to the county of the defendant’s residence. We have no doubt of the soundness of the conclusion that in every case where the particular exception to the general rule of venue relied upon to sustain venue outside the county of defendant’s residence involves no venue fact or facts, the required proof of which is evidence of a cause of action, it is immaterial on the trial of the plea of privilege that the evidence may show that there exists no cause of action against the defendant asserting his privilege.

We conclude that the judgment of the trial court should be affirmed and it is accordingly so ordered.

       Said exception 23 provides for alternative venue facts, some of which call for evidence showing a cause of action, while others do not. The venue facts herein relied upon do not.


author: GRAVES, Justice.

text:
    LACKNER et al. v. BYBEE et al.
    No. 11071.
    Court of Civil Appeals of Texas. Galveston.
    July 25, 1940.
    Rehearing Denied Nov. 7, 1940.
    Jones, Jones & McCollough, Ira P. Jones, Jr., and Byron G. McCollough, all of Houston, for appellants.
    Sewell, Taylor, Morris & Connally, of Houston, for appellees.
   GRAVES, Justice.

Appellants, as plaintiffs, sued the appel-lees, as defendants, in the district court of Harris County in trespass to try title — that is, for the title to and possession of the streets and the minerals thereunder in the Shady Acres Subdivision of land in Harris County, such subdivision being a part of what is known as the “Eureka Oil Fields”, just outside the limits of the City of Houston ; the land they so claimed was specifically limited to the streets and the minerals underlying them, as delineated on the official maps of that subdivision.

“There was an additional count in the plaintiffs’ petition, in which they sought to enjoin the defendants from drilling an oil well on a certain lot, No. 342, of said subdivision, which lot the defendants had acquired by deed from the plaintiffs many years ago, and to which the plaintiffs are making no claim of ownership. It was alleged that the Railroad Commission of Texas had granted .to the defendants, as an exception to the spacing rule (Rule 37), a permit to drill a well on the defendants’ property, being the above Lot No. 342. There were further allegations that the defendants’ permit was secured only because of certain misrepresentations made by the defendants to the Railroad Commission in their application for said permit, and at the hearing on said application. Because of these alleged misrepresentations, the validity of the permit was attacked. Attached to the plaintiffs’ petition as an exhibit thereto was a map showing the area in question, the proposed location of the defendants’ well, and the location of three producing wells on the plaintiffs’ property, which immediately surround on three sides the property of the defendants.

“The defendants filed a plea to the jurisdiction of the court, in so far as the plaintiffs’ petition attacked the validity of the defendants’ permit, and pled that the district court of Harris County, Texas, had no jurisdiction of the cause, in so far as the plaintiffs sought to attack the defendants’ drilling permit, for the reason that under the terms of Vernon’s Ann.Civ.St. Article 6049c, Section 8, the district court of Travis County, Texas, was the only court having jurisdiction of such a suit, and for the further reason, that, according to said statute, the Railroad Commission was a necessary party to all suits wherein the validity of permits issued by said Commission was attacked. Subject to their pleas to the •jurisdiction, the defendants filed their answer to the plaintiffs’ petition, and in such answer again set up the matters contained in their plea to the jurisdiction by special exceptions. The answer further contained a general demurrer to the plaintiffs’ petition, in so far as said petition sought in-junctive relief against the defendants. There was a formal plea of not guilty to the trespass to try title count. By agreement of all parties, the injunction feature of the case was set for trial on January 27, 1940. On said day, and several ensuing days, this feature of the case was heard by the trial court. At the request of the court, both parties submitted full and complete trial briefs. Thereafter, on the 12th day of February, 1940, the trial court, after having considered the briefs and the evidence, entered the following order:

“ ‘Be it remembered that on the 27th day of January, 1940, came on to be heard and considered by the court the allegations in the plaintiffs’ petition and prayer for in-junctive relief and the defendants’ pleas to the jurisdiction of the court, as set forth in Paragraphs I and II of the defendants’ motion to dismiss, and the defendants’ special exceptions as set forth in Paragraphs 1 and 2 of the defendants’ original answer and the exception or demurrer as set forth in Paragraph 3 of said answer.
“ ‘The court having considered the aforesaid pleadings, as well as the permit issued by the Railroad Commission of Texas and the map 'attached to the plaintiffs’ petition and the ownership of Lot 342, finds that said permit authorizes the defendants to drill on their own land and not on the land claimed by the plaintiffs, and that the court is without jurisdiction to question the validity of said permit, and that plaintiffs’ petition, when considered with said permit and the map and ownership of said lot, states no cause of action against the defendants for injunctive relief.
“ ‘It is, therefore, ordered, adjudged and decreed by the court that the aforesaid pleas to the jurisdiction, exceptions and demurrers of the defendants, are by the court sustained, and the plaintiffs’ prayer for injunctive relief is denied.
“ ‘The defendants’ general demurrer to the plaintiffs’ petition, in so far as it relates to the plaintiffs’ alleged cause of action to try the title to the minerals under the streets described in their petition, is by the court overruled.
“ ‘To the aforesaid action and ruling of the court the plaintiffs duly excepted and gave notice of appeal to the court of civil appeals for the First Supreme Judicial District of Texas at Galveston.
“‘Entered the 12 day of February, 1940.
“ ‘Kenneth McCalla,
“ ‘Judge Presiding.’ ”

From the quoted order, this appeal proceeds, having been precipitated into and advanced for hearing by this court, pursuant to R.S. Article 4662. In other words, the appeal is mutually regarded by both sides as one from the refusal below of a temporary injunction, within the purview of the cited statute.

As appears from the judgment itself, the learned trial Judge considered not alone the arguments of counsel upon the pleadings, but also the facts, exhibited to him in ways permissible in such a trial, touching the ownership of the property on which it was shown the appellees proposed to drill their well; he specifically found therefrom that the challenged permit from the Railroad Commission only authorized them to so drill on their own land, and not on any land that so formed the subject-matter of the appellants’ trespass to try title suit, then pending in that court.

Such being, undisputedly, the setting under which this appealed from order was entered, it is determined here that neither of the constituent holdings enunciated therein was outside a sound judicial discretion; when isolated, these holdings were: (1) In so far as the appellants sought to attack the validity of the permit issued by the Railroad Commission, the 127th District Court of Harris County was without any jurisdiction; (2) the refusal of the coveted temporary injunction was not based upon such a want of jurisdiction, but expressly and plainly upon a finding on the facts, which were specifically stated, that the land to which the Commission’s permit applied, lot 342, not only belonged undisputedly to the appellees, but was further not even involved in the appellants’ suit, nor claimed by them.

As so interpreted, it is thought both these holdings are fully sustained by our authorities, the first one by these: Vernon’s Ann. Civ.St. Article 6049c, Sec. 8; Massad v. Sayre Oil Corp., Tex.Civ.App., 116 S.W.2d 1136, writ dismissed; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372; Railroad Commission v. Burkett, Tex.Civ.App., 66 S.W.2d 448; Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720; Shell Petroleum Corp. v. State, Tex.Civ.App., 86 S.W.2d 245; Stanolind Oil & Gas Co. v. Edgar, Tex.Civ.App., 107 S.W.2d 631; Stanolind Oil & Gas Co. v. Railroad Commission, Tex.Civ.App., 107 S.W.2d 633; Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106; and the second one by cases, which may be collated as follows: Prairie Oil & Gas Co. v. State, Tex.Com.App., 231 S.W. 1088; Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Texas Pacific Coal & Oil Co. v. Comanche, Tex.Civ.App., 274 S.W. 193; United North & South Oil Co. v. Meredith, Tex.Civ.App., 258 S.W. 550; Hunt v. State, Tex.Civ.App., 48 S.W.2d 466; Magnolia Petroleum Co. v. Blankenship, 5 Cir., 85 F.2d 553; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 370, 81 L.Ed. 510.

The case of Tide Water Oil Co. v. Railroad Commission, Tex.Civ.App., 76 S.W.2d 553, upon which appellants rely for a contrary view, is thought to be clearly distinguishable upon its facts from this one; there, the trespass to try title suit involved the title to the very land on which the well was sought to be drilled — a far cry from the situation here presented, under the contrary facts recited supra.

Wherefore, it is concluded that — when applied to the facts carrying the legal equivalent to those here obtaining — appellants have cited no authoritative support of their position that they were entitled to prevent these appellees, on the showing herein made, from drilling an oil well on land appellants admitted was owned by the appellees, and as to which they themselves made no claim of title in their suit then pending before the trial court.

While there are thought to be other considerations upon which this court might also, in part at least, rest its approval of the trial court’s action, those given are deemed sufficient.

Without further discussion, an affirmance will be ordered.

Affirmed.

On Appellants’ Motion for Rehearing.

Able counsel for appellants, in their motion for rehearing, have called attention to errors of recitation in the first paragraph of the court’s original opinion herein, wherein it was stated that they had sued for “the title to and possession of the streets and the minerals thereunder in the Shadyacres subdivision”, etc., whereas, in accuracy, the statement should have been that they sued for the title to and possession of the minerals under the streets in the Shadyacres subdivision.

Alleged errors in other respects set out in the motion have been carefully considered, but it is concluded that none of them are well taken.

Under the conclusion that the cause was properly decided before, the motion will be overruled.

Motion for rehearing refused.


author: STOKES, Justice.

text:
    MILLER v. WHITTENBURG et al.
    No. 5168.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1940.
    Rehearing Denied Oct. 21, 1940.

      R. P. Moreland, of Plains, and W. A. Nelson and H. S. Lattimore, both of Fort Worth, for appellant.
    Joe J. McGowan, of Brownfield, and Sanders & Scott, of Amarillo, for appel-lees.
   STOKES, Justice.

This suit was filed by' appellant, B. G. Miller, against J. A. Whittenburg, Jr., and Roy R. Whittenburg, as executors of the estate of J. A. Whittenburg, deceased, and also against them individually and against all of the other appellees (except the Denver Producing & Refining Company, a corporation) as heirs at law of J. A. Whitten-burg, deceased. The Denver Producing & Refining Company was made a defendant because of its relation to the subject matter of the controversy as the owner of an oil and gas lease on the land involved from which it has been producing oil, the royalty from which is involved in this suit. The purpose of the suit was to establish a parol trust upon the title held by the appellees which, it is alleged in substance, arose in the following manner: Appellant alleged that in August, 1929, and prior thereto, he was the owner of Sections Nos. 830, 831 and 863, Block D, of the John H. Gibson Surveys, in Yoakum County, upon which he was indebted to Edward Manson in the sum of $4,616, besides interest, evidenced by ten vendor’s lien notes of $461.60 each; that about the date mentioned he consulted J. A. Whittenburg concerning the indebtedness and induced Whittenburg to advance the money due on the vendor’s lien notes and acquire them from the' payee, Edward Manson, which Whittenburg agreed to do; that in order to adjust the indebtedness in a manner satisfactory to Whittenburg, and at Whittenburg’s request, appellant executed a new note in the sum of $5,500, payable to J. A. Whittenburg, at Amarillo, in Potter County, and, as additional security thereof, he simultaneously executed a 'deed of trust conveying the three sections of land to George A. Whittenburg, as trustee, to secure the payment of the indebtedness so held by J. A. Whittenburg. He alleged that in November, 1931, he was delinquent in the payment of interest due on the note and was negotiating with the Panhandle Lumber Company in an effort to exchange his interest in the three sections of land for five houses and premises owned by the Lumber Company at Lubbock. He alleged that he consulted with J. A. Whitten-burg and was advised by Whittenburg against making such an exchange. He alleged that in the conversation it was agreed between him and Whittenburg that appellant would allow Whittenburg to take and hold the record title to the three sections and that, in consideration thereof, Whitten-burg agreed that one-half of the royalty from any oil or gas that may be produced from the land should belong to appellant and should at all times be held by Whitten-burg in trust for him.

Further allegations are to the effect that appellant carried out his portion of the agreement and executed a deed and placed it in the bank at Amarillo to be delivered to Whittenburg, but that Whittenburg preferred the title through foreclosure proceedings and instituted suit upon the note in which he procured a judgment against appellant for the amount due thereon and foreclosed the deed of trust lien on the land which he thereafter purchased at the sheriff’s sale on April 5, 1932.

J. A. Whittenburg afterwards died and on the 20th of July, 1937, the individual appellees, as his executors and surviving heirs, executed to the appellee, Denver Producing & Refining Company, an oil and gas lease under which the lessee Company prospected for, produced, and is still producing, oil in considerable quantities. Appellant’s suit is for the recovery of one-half of the proceeds of the royalty interests that have been collected by appellees under the oil lease and to establish a parol trust in his behalf upon the title held by the individual appellees through the alleged agreement which he had with their ancestor, J. A. Whittenburg, for one-half of the royalty interest in the land.

Appellees answered by numerous exceptions, general denial, the statute of frauds, the two, three, four and five years statutes of limitation, and other defenses not necessary to mention.

The case was submitted to a jury upon special issues, in answer to which the jury found, substantially, that in November, 1931, J. A. Whittenburg agreed with appellant that if appellant would let Whitten-burg have the three sections of land he would allow appellant one-half of the royalty from any oil and gas that may be produced thereon and that the agreement was supported by a valuable consideration. They further found that appellant performed his part of the agreement; that ap-pellees and their predecessor in title, J. A. Whittenburg, either in person or through persons claiming through them, had held peaceable and adverse possession of the lands in controversy for three years and for five years prior to November 23, 1938, and that J. A. Whittenburg breached the agreement with appellant in 1931 or 1932. Upon a motion filed by appellees the court rendered judgment upon the verdict in their favor apparently upon the theory that the findings of the jury upon the issues of three and five years limitation entitled ap-pellees to a judgment notwithstanding the findings of the jury to the effect that the agreement alleged by appellant had been entered into between him and J. A. Whit-tenburg.

Appellant filed and urged a motion for a judgment non obstante veredicto and, after the same was overruled and judgment rendered in favor of appellees, he filed a motion for a new trial which was overruled and he duly excepted and perfected an appeal to this court.

The briefs contain a number of assignments of error, propositions of law and counter-propositions, but we do not deem it necessary to discuss them in their order. The controlling issues in the case are, first, whether or not the findings of the jury, in effect, that the parol trust was created, has support in the evidence and, secondly, whether or not the appellees were entitled to judgment under the statutes of three and five years limitation.

Since the decision of the Supreme Court in the case of James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743, it has consistently been held by the courts of this state that, under our statute of frauds, it is permissible to ingraft by parol an express trust upon a deed which is absolute upon its face. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Tieman v. Dyer, Tex.Civ.App., 114 S.W.2d 669. We think it is hardly necessary to explain the reasoning of Justice Hemphill in that pioneer decision. A marked distinction is observed between' our statute of frauds, Vernon’s Ann.Civ. St. art. 3995, and the English act for the prevention of frauds and perjuries which is, in effect, that the English act encompasses any contract or sale of lands, tenements or hereditaments, “or any interest in or concerning them,” whereas our statute encompasses only “any contract for the sale of lands, etc.” The question of whether or not a parol trust was established in the instant case depends upon the testimony of two witnesses, viz., Ben Miller, son of appellant, and G. M. Hamilton. According to the testimony of these witnesses, J. A. Whittenburg, who resided at Amarillo, in Potter County, in company with his son, George A. Whittenburg, who resided in Randal County, were at the Miller ranch, consisting of the three sections of land here involved, in the latter part of November, 1931. Ben Miller testified that on that occasion he heard a conversation between his father, the appellant, and J. A. Whitten-burg in which the proposed exchange between appellant and the Panhandle Lumber Company was discussed, and that Mr. Whittenburg told appellant, in effect, that the old houses at Lubbock were probably too old to be capable of producing any revenue and that, if they were not so, the Lumber Company would not be wanting to dispose of them and that the Lumber Company would probably take them from appellant sooner or later. The record shows that the houses at Lubbock, were encumbered for several thousand dollars. This witness further testified that Mr. Whitten-burg said to appellant: “I never sold any land. If you will let me take this land over, half the royalty is yours.” He said that, in reply to these statements, appellant told Mr. Whittenburg that it seemed to be about as good a thing as appellant could do and that he would just go ahead and let Whittenburg take it. The witness Hamilton testified that he also was present and heard the conversation. His version of it was that Whittenburg said to appellant that if appellant would let Whittenburg have the land and handle it, Whittenburg would “give him one-half royalty.” He said that appellant then told Whittenburg that he would do that. There is no testimony in the record that either Whitten-burg or appellant ever told any other' person of the alleged agreement. The record shows that in July, 1931, some four months prior to the alleged conversation at the Miller ranch, Whittenburg’s attorneys began a course of correspondence with appellant in which they asked him to pay the delinquent interest on the note held by Whit-tenburg and threatened to file suit thereon. On August 12, 1931, appellant wrote the attorneys that they need not go to the expense of foreclosure proceedings because, if he could not procure a loan on the land, he would.convey it to Mr. Whittenburg and thus save the expense of foreclosure proceedings. The correspondence continued until December 17, 1931, when the attorneys filed suit in the district court of Potter County upon the note and to foreclose the deed of trust lien. On the 5th of March, thereafter, appellant executed and forwarded to the bank at Amarillo a deed in which he conveyed the land to J. A. Whitten-burg in consideration of the cancellation of the $5,500 note and the liens securing the same, with instructions to the bank to deliver it to Whittenburg or his attorneys upon receipt of a release of the indebtedness. The deed was not accepted by Whittenburg, but his attorneys, on March 18, 1932, wrote to appellant, acknowledging receipt of a letter from him informing them of the deed and explaining to him that, after taking the matter under consideration, considering the fact that practically all necessary expenses had already been incurred in the foreclosure proceedings and notice of the sale had been published, they thought it would be best to go ahead and sell the land as advertised. They explained in this letter that Mr. Whittenburg had told them it was not his intention to preserve a deficiency judgment against appellant in the event the land did not sell for enough to pay the debt and the record shows that immediately after Whittenburg bought the land at the sheriff’s sale, he cancelled the balance of the judgment remaining after crediting hig bid and purchase price of $2,500.

Appellees contend that the alleged agreement as reflected by the testimony is insufficient as a matter of law to establish a parol trust. They assert in this connection that the evidence does not meet the legal requirements to establish such a trust which, they say, cannot be established except by clear, concise, convincing and conclusive proof. The law is well established that, in order to establish such a trust, the intention of the parties to create the relationship must be definite and particular, but this does not mean that the parties must use any set phrase or legal language in order to accomplish that result. If the language used by them, taken in its ordinary and accepted use among the class of persons using it, is sufficient to express their intention to create such a trust, it is sufficient under the law and no set form of expression is required. Mr. Bogert in his work on Trusts and Trustees, vol. 1, § 45, p. 197, says: “Courts of equity have sought to find the real meaning of language used by settlors and have construed it to indicate a trust intent if the legal incidents of a trust were desired, no matter how clumsy or unsuitable the phrases used.”

Judge Sandidge, speaking for the Kentucky Court of Appeals, in Fox et al. v. Faulkner, 222 Ky. 584, 1 S.W.2d 1079, 1080, gave cogent illustration to this principle by a quotation from what he termed the celebrated bear case in Prewitt v. Clayton, 5 T.B.Mon., Ky., 4, 5, where it was said: “A bear well painted and drawn to the life is yet the picture of a bear, although the painter may omit to write over it, ‘This is the bear.’ ”

Ben Miller testified that, in the conversation at the ranch, his father, the appellant here, brought up the subject of his proposed exchange of properties with the Panhandle Lumber Company and explained to Mr. Whittenburg the details of the pending negotiations. The matter was discussed between them and, according to this witness, it culminated in the offer of Whit-tenburg that “if you will let me take this land over, half the royalty is yours.” This proposition was accepted by appellant. As an '• inducement to appellant to accept the proposition, Whittenburg explained to him that he (Whittenburg) never sold land, by which he evidently meant that if he acquired appellant’s land it would not be sold to others, but would be held by Whitten-burg and if oil should be produced thereon, appellant would, therefore, be certain to procure his portion of the royalty.

G. M. Hamilton’s testimony was equally as clear and we think the testimony of these witnesses was sufficient to form a legal basis for the finding of the jury to the effect that the agreement was actually made. It may be well to analyze the language used by the parties when the trust agreement is alleged to have been made. Whittenburg, in effect, told appellant that, if appellant would let him have the land, half of the royalty would be Miller’s. In connection with the proposition, Whitten-burg reminded Miller that he, that is, Whittenburg, never sold land. As we view it, these expressions could mean nothing else except that Whittenburg proposed to take title to the land — all of it — and that Miller had no occasion to fear that he would not receive his portion of the royalty because Whittenburg never sold land and, therefore, there could be no cause to apprehend it would fall into the hands of innocent purchasers and in that way deprive Miller of the benefits of the trust agreement.

Appellees devote a large portion of their brief to an effort to show that Ben Miller’s testimony was not plausible and that Hamilton’s testimony was inconsistent. The record contains testimony which undoubtedly tends to render the testimony of these witnesses inconsistent with the real facts as detailed by the controverting witnesses. It was shown by a number of witnesses that during the month of November, 1931, J. A. Whittenberg was ill and confined to his bed, requiring the constant attention of a nurse; that he never left his room except for short intervals and that his condition required the attention of his nurse even on the short automobile trips he occasionally took for recreation. Other witnesses testified to facts which, if true, precluded the attendance of George A. Whittenburg at the ranch house of appellant in the latter part of November, 1931. While this testimony was calculated to cast doubt upon the truth of the positive statements of the witnesses, Hamilton and Miller, we cannot say that it did more than create a sharp issue of fact between the witnesses upon the question of J. A. Whittenburg and his son actually being present and the issue of whether or not the conversation was, -as a matter of fact, had between J. A. Whittenburg and appellant, and thereby created a question for the jury to decide. It was submitted to the jury and they found the conversation did occur. That finding being supported by the testimony of the two witnesses mentioned, we are not authorized to disturb it, nor was the trial court warranted in disregarding it unless the case is controlled by the statutes of limitation and the facts in reference to that question which we shall now discuss.

At the request of appellees the court submitted to the jury special issue No. 9 as follows: “Do you find from a preponderance of the evidence that J. A. Whittenburg in 1931 or 1932 breached the agreement with B. G. Miller?” which the jury answered in the affirmative. This suit was filed December 4, 1937, which was more than three years and, we shall assume, more than five years after the date referred to in 1932. The purpose of submitting the issue was to ascertain and fix a date for the inception of the periods of limitation pleaded by appellees. Appellant contends that this special issue submitted an issue, not of fact, but purely one of law and that the jury’s finding thereon should be disregarded. It was held in Hanover Co. v. Hines, Tex.Civ.App., 11 S.W.2d 621, that the question of whether or not the requirements of the lease there involved had been breached was a question of law that should be determined by the court upon facts in reference thereto properly determined by the jury. Of course, it is elementary that only questions of fact should be submitted to the jury and those of law should be determined by the court, and we are strongly inclined to the opinion that the special issue here involved is subject to the criticism made by appellant. Waiving that feature of the contention, however, it is contended by appellees that the evidence was such as to show that, if there ever was an agreement between J. A. Whittenburg and appellant to the effect that the former would hold half of the royalty interests in the land in trust for appellant, the agreement was breached by the trustee Whittenburg in the year 1931 or 1932, thus setting in motion the statutory periods of limitation. They cite us to two features of the evidence which they contend reveal such a breach, one of which is the line of correspondence between appellant and Whit-tenburg’s attorneys and the other consisting of the act of Whittenburg in bringing suit against appellant to foreclose the deed of trust lien, the taking of judgment in that suit, selling the land under the judgment and the purchase of the land at the sheriff’s sale. The correspondence between the attorneys and appellant concerning the indebtedness began July 31, 1931. In a letter of that date the attorneys notified appellant that unless the interest on the loan was paid on or before the 5th of August, Mr. Whittenburg would have to protect himself by foreclosure proceedings. We have carefully examined the entire correspondence and find nothing in any of the letters passing between the parties that would indicate a purpose or intention on the part of Whittenburg to cancel, repudiate, breach or in any manner affect any agreement that may have been made between appellant and Whittenburg concerning the matter of a trust agreement. We fail also to find anything in the foreclosure proceedings which is inconsistent with the alleged trust agreement. According to the witnesses, Ben Miller and G. M. Hamilton, the agreement did not encompass the details. by which the title to the land would be placed in Whittenburg. According to Hamilton’s version, Whittenburg told Miller that if Miller would let him have the land and handle it, as it was, Whittenburg would give him one-half of the royalty. Ben Miller’s testimony was substantially to the same effect. After the foreclosure suit had been instituted by Whittenburg, Miller executed and forwarded to the bank at Amarillo a deed in which he conveyed the land to Whittenburg in consideration of the cancellation of the indebtedness. A few days after the deed was received by the bank, Whittenburg’s attorneys wrote Miller a letter in which they said to him: “ * * * After taking the matter under consideration, considering the fact that practically all the expenses have already been incurred in the foreclosure and notice of the sale published and the expense incurred for that, we think it would be best to go ahead and sell the land as advertised. Mr. Whittenburg tells us that it is not his intention to preserve a deficiency judgment against you if the land does not bring enough to pay his indebtedness. If you will meet us on the day of the sale, and the land is not sold to some one else for enough to take up Mr. Whittenburg’s indebtedness and Mr. Whittenburg buys the land in, we will take up with you the matter of releasing any deficiency judgment * * *Thus it will be seen that the attorneys for Whit-tenburg expressed no purpose for persisting in the foreclosure proceedings other than the fact they had proceeded to the point where practically all of the necessary expenses had already been incurred. Nothing was said or even suggested in the correspondence that Whittenburg was, by the foreclosure proceedings, repudiating the trust nor was his purpose or intention to do so ever expressed by him or any of his representatives. The correspondence shows that Whittenburg was not compelled to acquire the title through foreclosure, but that he preferred to acquire it in that manner. The original trust agreement did not contemplate the manner in which the title would be transferred to Whittenburg and we -cannot accede to the contention of appellees that these two acts of Whitten-burg, that is, the insistence by his attorneys that he pay the note and the institution of the foreclosure proceedings were such as to constitute a breach or repudiation of the trust agreement. Other grounds are urged by appellees as bases for the finding of the jury that the trust agreement had been breached but they consist of the acts and conduct of appellant and cannot, we think, be construed into an abandonment of the trust by the parties nor of a breach or repudiation of it on the part of Whitten-burg.

Moreover, even if Whittenburg entertained such a purpose, there is no testimony in the record showing that he or his attorneys ever at any time communicated it to appellant. "The record shows that, although the land was worth $11,420 in 1932, several thousand dollars more than was due on the note held by Whitten-burg at the time he filed suit thereon, appellant did not appear and contest the suit nor make any effort to conserve his equity therein. If he had the trust agreement with Whittenburg as testified to by the witnesses, then in the absence of notice of some kind that by the foreclosure proceedings Whittenburg intended to repudiate the trust, and in view of the absence from the agreement of the details and manner in which Whittenburg was to acquire title to the land, we do not think those proceedings and the course taken by Whittenburg to acquire the title necessarily constituted a breach or repudiation of the trust agreement. It is elementary that the statute of limitations does not begin to run against an express trust until the trustee does some act or makes some statement by which the cestui que trust is informed of his intention to repudiate the trust. Brotherton v. Weathersby, 73 Tex. 471, 11 S.W. 505; Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Tomahagen v. Sarber, Tex.Civ.App., 29 S.W.2d 438.

The agreement under which the express trust was created as found by the jury contemplated that Whittenburg should have and hold possession of the land and unless the trust agreement was repudiated the statutes of limitation would not apply to such possession. We do not find in the record'anything which would form a basis for or in any mannér support the findings of the jury upon the question of adverse possession insofar as appellant is concerned. His possession was in conformity with their agreement and, as we have said, no effective repudiation or breach of the agreement is shown by the testimony. There being nothing in the record to support the findings of the jury on'the question of limitation and adverse possession, the court was not warranted in rendering judgment in favor of the appellees.

Another contention made by ap-pellees is that at the time of the alleged trust agreement, appellant, B. G.- Miller, had no interest in the land other than that which could be conveyed by parol, that is,' that, by virtue of the fact that Whitten-burg’s note of $5,500 had been executed and delivered to him by Miller in renewal and extension of vendor’s lien notes, that Whittenburg held the complete title to the land, Miller’s right thereto being only a contract for title conditioned entirely upon the payment of the vendor’s lien notes held by Whittenburg. We understand this contention to mean that, because he held the superior title under the vendor’s lien, Whittenburg was in possession of both the legal and the equitable title to the land and, therefore, an express trust could not be established thereon by parol. If ap-pellees are correct in their premise, the legal conclusion is inevitable because it is a well established principle of equity that an equitable estate requires the simultaneous existence of two estates or ownerships in the same subject matter whether the property involved be real or personal. If, therefore, the vendor’s lien held by Whittenburg invested him with both the legal and equitable titles, no express trust could be created by parol because such would be in direct violation of the provisions of our statute of frauds. 1 Pomeroy’s Eq.Jur., 4th Ed., 178; Wheeler v. Haralson, 128 Tex. 429, 99 S.W.2d 885; R. L. Knight, Jr., et al. v. Tannehill Bros., 140 S.W.2d 552, recently decided by this court. We do hot agree with appellees, however, in their contention that appellant did not own any interest in the land. It is well established law in this state that a vendor who retains a lien upon land to secure a portion’ of the purchase price holds the superior title until the deferred payments are discharged. He does not have any right to possession until maturity of the indebtedness. That right belongs Jo the vendee. While the title retained by the vendor is superior to that conveyed to the vendee, the latter does own an interest which is greater than a mere right to acquire title. Roth v. Connor, Tex.Civ.App., 25 S.W.2d 246. If the vendor retains the superior title the vendee acquires the inferior one. The title held by the vendor is designated by some courts as being the legal title which he holds in trust for the benefit of the vendee who must hold the equitable title which consists of the right to pay the indebtedness and acquire the entire title. Engelbach v. Simpson, 12 Tex.Civ.App. 188, 33 S.W. 596; Humphreys-Mexia Company v. Gammon, 113 Tex. 247, 254 S.W. 296, 29 A.L.R. 607. Under the condition of the title' revealed by the record there is no question that an express trust could, under the law, be created by parol.

We have carefully considered all of the contentions made by both parties and, in our opinion, under the evidence in the case and the findings of the jury upon the issues presented to them having reference to the. establishment of a parol trust, the trial court should have entered judgment in' favor of appellant for the value of one-half of the proceeds of royalty in the oil which had been collected by ap-pellees and decreed a trust in favor of appellant for one-half of that which might thereafter be so collected by them or to which they should be > entitled under the present lease or any future lease that may be made of the land. The record shows that Section 830 is school land and was leased by appellees under the provisions of Art. 5368 et seq. They, therefore, became entitled only to one-half of the usual royalty and, under the trust agreement, appellant is entitled only to one-half of that to which appellees are entitled under the law.

The judgment of the court below will be reversed and judgment will here be rendered for appellant in accordance with the conclusions herein expressed. Appellant states in his brief, and the statement is not challenged by appellees, that, according to the undisputed testimony, the amount of royalty collected by ap-pellees under the oil and gas lease up to June 1, 1939, is $38,506.16. The judgment will be for one-half of that amount, with interest from July 1, 1939, at the rate of six per cent per annum, and for one-half of all amounts subsequently so collected, in accordance with the express trust established by the evidence.

On Motions for Rehearing.

Both the appellant and the appellees have filed motions for rehearing both of which we have overruled. In his reply to appel-lees’ motion for rehearing, however, the appellant states that, in view of the unsettled state of the law relating to his claimed interest in the oil royalty from Section No. 830, which is a state school section, never having been patented, and other conditions mentioned by him, he is willing to remit his claim to the royalties that have been collected or received by appellees from, and all of his claim to, that section. He further states that the amount collected by appel-lees as royalty from the other two sections up to June 1, 1939, is $28,674.76, and this allegation is not in any way challenged by the appellees. Appellant asks this court to reform the judgment heretofore entered in the cause so as to allow him recovery of one-half of the above amount, together with one-half of all royalties collected after June 1, 1939, from Sections 831 and 863.

Appellant does not point out to us any portion of the record or testimony which segregates the amount of royalty produced on Section 830 nor the amount of money collected by appellees from oil production on that section and we have not been able to find any testimony in the record to that effect. In the original opinion we held that, under the verdict of the jury, appellant was' entited to recover one-half of all of the royalty collected by the appel-lees from all three of the sections of land and he was awarded judgment therefor by this court. If appellant does not wish to collect the entire amount of the judgment awarded him but prefers to remit a portion of it, even though the record does not give us a basis upon which to render a judgment for the exact amount remaining, we think he has the right to do so under the provisions of Article 2227, Revised Civil Statutes, 1925. That article permits any party in whose favor a judgment has been rendered to remit any .part thereof either in open court or in vacation, and that execution shall issue for the balance only of the judgment. The judgment, after the re-mittitur, is in accordance with the findings of the jury and in no sense conflicts therewith. It conforms to the pleadings and gives relief to which, in our opinion, the appellant was entitled in the trial court. Certainly no prejudice nor injury can be imposed upon the appellees by such remittitur and the request of the appellant that the remittitur be allowed and the judgment reduced accordingly will be granted and the judgment reformed in accordance therewith. General Accident Fire & Life Assur. Corp. v. Bundren, Tex.Com.App., 283 S.W. 491.