author: McCLENDON, Chief Justice.

text:
    STEGALL v. STATE et al.
    No. 8969.
    Court of Civil Appeals of Texas. Austin.
    Oct. 30, 1940.
    Fowler & Fowler, Roy P. Ward, and Joe H. Munster, Jr., all of Austin, for appellant. Gerald C. Mann, Atty. Gen., and Tom D. Rowell, Jr., Asst. Atty. Gen., for appellees.
   McCLENDON, Chief Justice.

Appeal by Stegall from a judgment in a receivership proceeding denying his claim for the reasonable rental value of four steel oil tanks in which was stored hot oil which was in custody of the receiver under his order of appointment. The proceeding was brought by the State prior to July 1, 1937, under Vernon’s Ann.Civ.St. Art. 6066a, to confiscate the oil on the ground that it had been produced in violation of the conservation laws. Stegall and others were made parties defendant and the receiver was appointed July 1, 1937. The oil was described as being in the four tanks in question and the order directed the receiver to take possession of it, preserve it pending litigation, and “seal off” the tanks “to prevent molestation.” March 24, 1939, Stegall filed his answer and disclaimer, in which he rep,resented “to the court that he has an interest in the steel tank in which the oil * * * is stored, but here now disclaims any ownership to said oil.” He prayed judgment for his costs and that he “go hence without day.” The same day judgment was render-^ ed confiscating the oil, ordering it sold, and directing that the proceeds be applied to the payment of costs of the suit, “including the expenses incident to the guarding and sale of such oil * * * and the receivership expenses incurred herein,” and the balance deposited in the State Treasury to the account of the General Revenue Fund. June 6, 1939, Stegall filed application fo'r an order requiring the receiver to show cause why his claim for rental on the tanks should not be allowed and taxed as costs, and the tanks immediately turned over to him. His claim covered the period July 1, 1937, to March 24, 1939, and he prayed for a further allowance from the latter date until the tanks should be delivered to him. The receiver answered the application by general demurrer and general denial. July 8, 1939, the application was heard and judgment rendered denying it.

We have reached the conclusion that the . trial court’s judgment should be affirmed on two grounds:

1. There was no evidence that Stegall owned the tanks or was entitled to any rentals that might be due for their use by the receiver.

2. No predicate was laid for any claim for rentals prior to the date of the application.

Upon the first ground it is only necessary to state that the only intimation of ownership of the tanks in Stegall shown by the entire record is the allegation in his answer and disclaimer to the effect that he had “an interest in the tank in which the oil” was stored; and the allegation of ownership in his unverified application of June 6, 1939. The evidence on the hearing was confined solely to the issue of reasonable rental value of the tanks.

It is elementary that one asserting a claim for the rental value of property must show, at least prima facie, that he is entitled to demand and receive the rentals either as owner or otherwise.

As to the second ground: The record is wholly silent as to the arrangement under which the oil was in storage at the time the receiver was appointed; whether under a rental contract or otherwise; whether Steg-all owned or had an interest in the oil at the time it was originally stored, and thereafter parted with his interest, and continued to hold the oil in storage under some agreement with the owners; whether he was par-ticeps criminis to the oil’s illegality or merely the innocent custodian or bailee of the oil or the innocent landlord of its owner.

We assume, arguendo, the correctness of Stegall's contention that Art. 6066a does not render contraband the property or its use in which hot oil is stored. We also assume-the right of an innocent owner of the tanks-to demand possession or reasonable compensation for the value of their use. It may even be assumed, for our present purposes, that if Stegall was particeps criminis to the illegal production, transportation or storage of the oil, he would have had the right, if the tanks were his, to demand that he be repossessed of them after the receiver had been given a reasonable time in which to make other storage arrangements.

If stored under rental agreement, the receiver would have the right to adopt or repudiate that agreement.

It may be true, as Stegall contends, that the receiver did not have the right to move the oil to other storage. But certainly the court had the power to authorize its removal, whether or not the order of the receiver’s appointment granted that authority by necessary implication.

But whatever the circumstances, we think it clear that some demand should have been made upon the receiver or application made to the court before the right to rentals would arise.

Stegall was a party defendant to the suit. He could not sit silently by for a period of nearly two years, and then for the first time demand rentals for that period.

The trial court’s judgment is affirmed upon each of the above grounds..

Affirmed.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    PARKS et al. v. PURNELL et al.
    No. 3740.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1940.
    Rehearing Denied Oct. 24, 1940.
    J. L. Goggans, of Dallas, for plaintiffs in error.
    Locke, Locke, Stroud & Randolph, Hubert Johnson, and Maurice E. Purnell, all of Dallas, for defendants in error.
   PRICE, Chief Justice.

This is an appeal by writ of error from one of the district courts exercising jurisdiction in Dallas County." It was an action in trespass to try title where the defendants in error, Mrs. Ginevra Purnell and her husband, as plaintiffs, recovered the title and possession of certain property situated in the City of Dallas from Mrs. Laura Parks and the. devisees of her deceased husband, O. F. Parks. The appeal was dismissed by this Court for failure to file the transcript in time. See Parks v. Purnell, Tex.Civ. App., 120 S.W.2d 895. A writ of error was granted by the Supreme Court and the judgment of dismissal was reversed by the Supreme Court. Parks v. Purnell, 141 S.W.2d 585.

The statement of the general result of the case made by plaintiffs in error is admirable in its clarity and brevity, and same is literally adopted:

Mrs. Ginevra L. Purnell, joined by her husband, instituted two suits in the District Court of Dallas County, Texas, in the nature of trespass to try title, each of which involved title to a separate tract of land located in Dallas County, Texas. The defendants named were Laura Parks, the children of Laura Parks and her husband, O. F. Parks, and H. W. Sanderson. H. W. Sanderson disclaimed any interest in the properties.

Both suits involving identical issues, the causes were consolidated and tried together before the court without a jury. The plaintiffs recovered title to both tracts. The facts are undisputed.

The pleadings of the plaintiffs in each of the consolidated cases consisted of a general count in trespass to try title. Defendants answered in each case by a general demurrer, plea of not guilty and specially pleaded that at the time of the purported sales of the properties by the trustee under the deeds of trust under which plaintiffs claim title to the properties the debts were barred by The four-year statute of limitations.

The plaintiffs, by supplemental pleadings, alleged facts in avoidance of the statute of limitations. From a judgment awarding plaintiffs title to the two tracts in controversy, these defendants perfected their writ of error.

Plaintiffs and defendants each claimed under O. F. Parks, deceased. Defendant Laura Parks is the surviving widow of O. F. Parks, and the other defendants the surviving children of defendant Mrs. Laura Parks and her deceased husband, O. F. Parks, and all are devisees of said Parks.

For convenience the parties here will be referred to according to the designation each bore in the trial court.

The two tracts of land involved were the community property of defendant Mrs. Laura Parks and deceased O. F[ Parks. The will of O. F. Parks named defendant, Mrs. Laura Parks, independent executrix and trustee. Upon the probate of the will she qualified and acted as executrix and trustee.. The deeds of trust, under the foreclosure of which plaintiffs claim, were executed by Mrs. Laura Parks, individually and as executrix and trustee. There is no irregularity charged in the manner of the foreclosure of the deeds of trust by the trustees named in such deeds of trust, except as next noted. This exception is that' it is charged that at the time the sales were consummated the notes were barred by limitation.

Save as to the one-half community interest of Mrs. Parks, the power, or lack of power, to encumber the property depends on the terms of the will of her husband. During the pendency of this appeal this issue, in respect to this identical will, has been decided by the Dallas Court of Civil Appeals. Neilson v. Schoellkopf, 122 S.W.2d 281. The Supreme Court had denied a writ of error in that case. The case sets forth all the pertinent provisions of the will of O. F. Parks, deceased, and reference is here made to that case for the terms of the will. It was there held that Mrs. Parks had the power, as trustee and independent executrix, to mortgage the estate.

We deem it unnecessary to write further on the matter. It might be remarked that this identical will was construed by the Supreme Court of Oklahoma in the respect in question as it is construed in the case of Neilson v. Schoellkopf, supra. See Parks, et al v. Producers Nat. Bank of Tulsa, 176 Old. 67, 54 P.2d 398.

The question of limitation remains. It is contended that the notes secured by the deed of trust became due October 4, 1930. The sale took place June 4, 1935. It is asserted that by virtue of Article 5520, R.S., as amended in 1931, Vernon’s Ann. Civ.St. art. 5520, the right of the trustee to make the sale was barred. In making this contention defendants concede that from July 7, 1931, to May 10, 1935, they had procured and had in force a temporary injunction enjoining plaintiffs from making sale under the deed of trust. On May 10, 1935, plaintiffs in error took a voluntary nonsuit, and on May 11, 1935, plaintiffs caused the trustee to post notices under the deeds of trust, and the sales were made thereunder on June 4, 1935.

According to the contentions of plaintiffs, the notes, by virtue of an extension agreement, fell due June 1, 1931. It is conceded that, on October 4, 1930, in accordance with the extension agreement, plaintiffs elected to declare the notes due, and took steps to foreclose by sale. However, before sale, defendants having made good the default, the right to declare the notes due was waived and the foreclosure abandoned.

Under contention of defendants, on May 11, 1935, when the proceedings were initiated for the foreclosure of the deed of trust, the notes were prima facie barred. Under that of appellees, at the time of the initiation of foreclosure proceedings the notes were not barred by limitation.

The sale in final consummation of the foreclosure as relied upon took place June 4,. 1935, at which time a few days more than four years had elapsed from the date of their maturity.

Let us assume, for the purpose of this discussion, that the maturity date of the notes was October 4, 1930. The question then arises as to the effect of the injunction subsisting from July 7, 1931, to May 10, 1935. It is clear that during that period the right to extrajudicial foreclosure was unavailable. Defendants take the position that their injunction did not prevent the resort to a judicial foreclosure. This being the case, the notes being barred at the time of the sale, same was void. Davis v. Andrews, 88 Tex. 524, 30 S.W. 432, 32 S.W. 513, is relied upon in support of this position. In that case an injunction was granted against the trustee named in'the deed of trust foreclosing the lien by sale. He was the sole original defendant in the case. It does not appear that he had been even requested by the beneficiaries to proceed with the sale. In his answer he set up his position as trustee, named the beneficiaries of the trust, and suggested that they were necessary parties. More than four years after the maturity of the notes the beneficiaries appeared and sought judicial foreclosure. By supplemental petition the four-years statute of limitations was urged. It was held the notes were barred and a judicial foreclosure denied. After this judgment the executors of the beneficiaries instituted a proceeding in the proper court for the appointment of a substitute trustee to foreclose the deed of trust. The deed of trust, it seems, gave this power only to the beneficiaries. The trial court, by its action on special exception, denied the relief sought, and its action was affirmed by the Court of Civil Appeals. Converse v. Davis, 37 S.W. 247. In substance, the Court of Civil Appeals held where a trustee has been enjoined from selling mortgaged property under a trust deed and the beneficiaries of the trust choose voluntarily to appear in the suit and ask for judgment for their debt and foreclosure of the lien, and on a plea of limitation judgment is rendered against them, such judgment precludes them from any further relief in connection with their debts in the courts of the State. Writ of error was granted by the Supreme Court. Converse v. Davis, 90 Tex. 462, 39 S.W. 277. Opinion in the case was written by Judge Denman, the same Judge writing the opinion in the case of Davis v. Andrews, supra. It was held that under the facts existing, the judgment in the case of Davis v. Andrews, supra, did not preclude the relief sought. The case of Williams v. Pouns, 48 Tex. 141, is cited in support of the holding, as was the case of Davis v. Andrews, supra.

It might be noted, in considering Converse v. Davis, that at that time a power of sale might be exercised, even though the debt be barred.

The case of Pioneer Building & Loan Ass’n v. Johnston, Tex.Civ.App., 117 S.W.2d 556, writ dismissed, is deeméd to foreclose the matter. It was there held, in substance, that where mortgagee was enjoined from selling mortgaged property under trust deeds continuously from the time the right accrued until four years thereafter, but not from suing to recover on debt and to foreclose lien through court, such debt and right so to judicially foreclose were barred by the four-year statute. But that where the right to foreclose by the power of sale had been so enjoined, that the right to foreclose under the deed of trust was not barred by Article 5520, Vernon’s Annotated Civil Statutes.

The matter is carefully and ably discussed in the opinion and the authorities bearing on the proposition are carefully and thoroughly discussed. No further discussion is deemed necessary.

There is another interesting question that might arise under the facts of this case.

In our opinion the record sustains the contention of plaintiffs that in truth and in .fact the notes matured on, June 1, 1931. The foreclosure relied upon was initiated May 11, 1935. Sale was made in.consummation of the foreclosure on June 4, 1935. Thus it will be seen that the initiation of the foreclosure was before the notes were barred by limitation, the sale taking place after same were barred by limitation. It might be that the initiation of the sale would be sufficient to prevent the bar provided for by Article 5520. However, it is unnecessary to decide this question, and no opinion is expressed thereon.

There being no error in the case, it is ordered that same be affirmed.


text:
    SUPREME FOREST WOODMEN CIRCLE v. GONZALEZ et al.
    No. 3993.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1940.
    Rehearing Denied Nov. 14, 1940.

      Henry, Bickett & Bickett, of San Antonio, for appellant.
    L. B. Cooper, of Cotulla, for appellees.
   PRICE, Chief Justice.

As plaintiff, Irene M. de Gonzalez, hereinafter called plaintiff, joined in the suit by her husband, recovered in the District Court of La Salle County a judgment in the aggregate sum of $1,358 ($108 of which represented penalty, and $350, attorneys’ fees) against Supreme Forest Woodmen Circle, hereinafter referred to as defendant. The defendant duly perfected an appeal.

The cause of action asserted by plaintiff was founded on a certificate or policy of insurance in which Omero Gonzalez was the insured and plaintiff the beneficiary. The assured was a boy sixteen years of age. The certificate was dated January 1, 1939, and assured died on April 5, 1939. Defendant was at all relevant times a fraternal benefit society, in all things subject to and covered by the laws of Texas relating to such societies. It is deemed unnecessary to state the pleadings of the parties. Suffice it to say that all matters hereinafter discussed are within the compass of the pleadings.

Defendant prays for a reversal and rendition of judgment in its favor and in case that relief be denied, that the cause be reversed and remanded.

One proposition is relied upon to obtain-the relief sought. This proposition is as follows: “Where the insured, in his application to a fraternal benefit society for a. certificate of insurance, warranted that he was in good sound bodily health and mind, and that he had no disease that would tend, to shorten his life, and where the contract between the society and the member expressly provided that the certificate should be null and void if the member, at the time of the delivery thereof, was 'not in good; health and free from any disease, and where-the evidence conclusively showed that the-member, a child of the age of sixteen years,, was, at the time of the making of the application and at all times thereafter, sick and not in good bodily health and mind, in that he suffered from fits or convulsions,, it was error for the trial court to render a. judgment against the society on the certificate.”

Granted the correctness of the facts-forming the hypothetical basis of the proposition, defendant would be entitled to the relief sought. A question of fact only is-presented by this appeal. That question is,. Did a preponderance of the evidence establish a breach of the warranty set forth in, the proposition? In other words, did the policy cover the death of the assured?

It is undisputed that the contract of insurance substantially contained the provisions as set forth in the proposition quoted. These provisions, as applied to the type of insurance here involved, are valid and must be recognized and vindicated in a; proper case.

The burden of establishing that assured, at the time of the application or at the time of the delivery of the certificate,, was sick and not in good bodily health and' mind, was upon the defendant. National Life ’& Accident Ins. Co. v. Taree, Tex. Civ.App., 8 S.W.2d 291; American Central; Life Ins. Co. v. Alexander, Tex.Com.App.,. 56 S.W.2d 864.

The proof of loss introduced in evidence by defendant contained the affidavit of plaintiff in which she stated the death of assured was caused by diarrhea. Certificate of the attending physician, Dr. Lightsey, was likewise a part of the proof of loss. This stated, among 'other matters, in substance, that he had been the medical’ attendant of deceased about two months that he had treated deceased for convulsions prior to the last illness; that the duration of the treatment was one day and the result thereof, recovery; that he attended deceased during the last illness for diarrhea, fever and convulsions; the day of his first and last visit, April 25, 1939 (this the last illness); the immediate cause of death, convulsions ; that deceased was confined to his house or prevented from attending to business for one day; that prior to last illness deceased was subject to convulsions.

Dr. Lightsey testified on behalf of the defendant. He stated the only time he knew of deceased having a convulsion prior to his last illness was one time; that he had made a statement that the boy, in his opinion, was mentally unsound, but he was not ■sure of it; that he had not seen the first convulsion; that this convulsion was probably caused by something the boy ate.

On cross-examination the witness stated that he believed the statement that deceased was subject to convulsions was incorrect, but in the same sentence said, “Well, I don’t 'know whether it was incorrect or not.” Witness stated that it was his opinion the "boy was feeble-minded, but he would not •swear that he was feeble-minded. The op-portunity the witness had to form an opinion as to the mental condition of deceased was apparently confined to seeing him on two or, at most, three occasions. Each time the boy was suffering acutely.

Defendant also called plaintiff as a witness. She said her son had been sick four •or five days before his death; that he had not been sick for several years before that time; that her son did not have epileptic •fits; that her son’s mind was good; that she had signed a certain document. This -document was in Spanish, and the following translation was introduced in evidence:

“May 26, 1939.
“Omero Gonzalez was my son. He was • a boy, and died during the month of April, 1939, in Cotulla, Texas. Omero was 16 years of age at the time of his death.
“Omero never attended school at any tiine, because when he was approximately •seven years of age, he had a fit which affected for the time his mind. After the ■fit he appeared to be in good health for ■many years. The last fit (or attack) which •Omero had was one day approximately five years ago. Dr. Lightsey attended him.
“I have read the above, and it is true, ex- ■ cept that the last fit he had was five months ago, and not five years ago. He did have one other fit five years ago.
“I hereby permit Dr. Lightsey to give information about the health of this young man.”

Asked if the statements in the writing were true, she said she did not know, she had not had it explained to her and had not read it; that she had signed the paper giving Dr. Lightsey authority to testify as to her son’s health; that she never made the statement, “because when he was approximately seven years of age he had a fit which affected his mind”; that the boy did not have a fit when he was seven years of age; that about five months before his death the boy had indigestion; that her son was in good health at the time he made the application.

On cross-examination she stated her son was sane and in good health all the time; that she had never read nor had explained to her the document in Spanish signed by her; if she had known what it stated she would not have signed same.

Plaintiff and Dr. Lightsey were the only witnesses testifying.

It is, perhaps, true that, plaintiff being a party to the litigation, the defendant was not bound by her testimony. However, the trial court was bound to consider same in passing on the facts — her statement in regard to the written admission might have been given credence. There was no contradiction thereof.

In our opinion, giving full credence to the testimony and considering same as a whole, it fails to establish the defense pleaded and relied upon — fails to establish the vital facts that either at the time of the application or the delivery of the policy the assured was not in good health as to both his mind and body. There was evidence that the boy could neither read nor write and that he stuttered.

Dr. Lightsey’s testimony is entirely consistent, in our opinion, with the good health, mental and physical, of the boy at all relevant times. To his mind the convulsions did not necessarily evidence a bad state of health; they may have been caused by something he ate producing indigestion. The proof of loss was consistent with such a state of health, likewise.

It is the'province of the trial court to pass on the evidence. There being no findings of fact or conclusions of law in the record, it is our duty to attribute to the trial court such findings, if justified by the evidence, as would sustain the judgment. In our opinion, the judgment rendered was amply sustained by the evidence.

No error appearing in the record, it is ordered that the judgment be affirmed.


author: BROWN, Justice.

text:
    TUNSTILL et al. v. SCOTT.
    No. 14127.
    Court of Civil Appeals of Texas. Port Worth.
    Oct. 25, 1940.
    H. S. Lattimore, of Fort Worth, for appellants.
    Chester Clark, of Fort Worth, for ap-pellee.
   BROWN, Justice.

Appellee, Naomi Scott, brought suit in¡ the 48th district court of Tarrant County,. Texas, complaining of G. A. Tunstill, W. A. Tunstill and wife, Eula Tunstill, and GG. Tunstill, and on May 18, 1937, filed a second amended petition, naming said parties as defendants, in which we find the following language used: “Premises considered, the defendants, G. A. Tunstill, W. A. Tunstill and wife, Eula Tunstill, having been duly and regularly served with citation herein, as required by law, and having entered their appearance in said cause, plaintiff prays that they be required to take notice of this second amended original petition and that citation be issued to the defendant, G. G. Tunstill, as the law provides.”

Thus it appears that the defendant G. G. Tunstill was not before the court on May, 18, 1937, when the amended pleading was filed, and on such day the 'defendant G. A. Tunstill filed his plea of privilege to be sued in the County of Harris, his alleged place of residence.

The plaintiff had alleged that G. A. Tun-still was temporarily residing in Harris County, in which county service of process could be had upon him and that the other named defendants were residing in Tarrant County, in which the suit was filed.

The gist of plaintiff’s suit is that the defendant G. A. Tunstill, for whom she had worked as a servant, fraudulently obtained from her certain deeds and powers of attorney covering certain lands in Gregg County, Texas, owned by her and that he had conveyed all such lands to the other named defendants, who knew of the circumstances and conditions under which she had executed such instruments and that G. A. Tunstill merely held title in trust, for her; that the lands were oil producing properties and the defendants had converted to their use the proceeds from the oil produced from the lands; and she prayed that all such deeds and powers of attorney be canceled and an accounting be had between her and the defendants, and for damages by reason of the unlawful conversion of the oil.

The plea of privilege was overruled and G. A. Tunstill appealed to this court and, as is shown by the opinion found in Vol. 120 S.W.2d 274, 278, we reversed that judgment and ordered the cause transferred to the district court of Gregg County, “because the primary purpose of plaintiff’s case is to cancel and annul all deeds, conveyances and instruments in writing executed by her, and affecting the title to her lands in Gregg County, Texas. * * * We are without authority to transfer the cause to Harris County, because the suit cannot be tried by piecemeal.”

We cited a former opinion by us in support of our holding: Jones v. Ford, 118 S.W.2d 333.

When the record was filed in the District Court of Gregg County, the defendants W. A. Tunstill, Eula Tunstill and G. G. Tun-still (who was served with process after the 48th District Court overruled G. A. Tunstill’s plea of privilege), each filed a plea of privilege to be sued in Tarrant County, the place in which they reside.

No controverting affidavit was filed, by Naomi Scott, leveled at any one of such pleas, but the district court of Gregg County acted upon the pleas on August S, 1939, and overruled each of them, stating in the judgment and order that the pleas of privilege should be sustained but for the judgment of our Court of Civil Appeals, as shown in Vol. 120 S.W.2d 274.

The three named defendants excepted to such judgment and appealed to the Court of Civil Appeals for the Texarkana District, and the cause is before us by reason of a transfer made by our Supreme Court.

Appellee, Naomi Scott, has presented a motion asking that we affirm the judgment of the trial court on certificate because the transcript was not filed in the Court of Civil Appeals until the 62nd day after the judgment appealed from was rendered, and she cites Parks v. Purnell, Tex.Civ.App., 120 S.W.2d 895 as authority for her right to have the judgment thus affirmed.

The Supreme Court granted a writ of error in that case, and, in so doing, stated that the holding is in direct conflict with the holding of our Court in Pittman v. City of Wichita Falls, 117 S.W.2d 491.

The Supreme Court, 141 S.W.2d.585, has recently reversed the judgment of the Court of Civil Appeals, dismissing the appeal, in the case of Parks v. Purnell, supra, and ordered the cause remanded to the Court of Civil Appeals for consideration on the merits.

In the instant suit, appellee did not, within 30 days after same was filed, make any objection to the filing of the transcript, on the grounds that it was filed too late, but we find that appellee did make objection to certain errors shown in the transcript and, by agreement of all parties, corrections were made in the transcript to cover the objections made.

We overrule the motion to affirm on certificate under the authority of Pittman v. City of Wichita Falls, 117 S.W.2d 491, and the judgment of the Supreme Court in Parks v. Purnell, 141 S.W.2d 585 (not yet reported [in State Report]), the appellee having failed to make objection to the filing of the.transcript within 30 days after same was filed, and for the further reason that such an irregularity being one that can be waived, it was waived again by appellee when she made objection to the errors she pointed out in the transcript and such errors were corrected with her written consent and at her request.


author: SMITH, Chief Justice.

text:
    GARCIA v. GARCIA.
    No. 10766.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1940.

      K. D. Hall, of Refugio, for appellant.
    J. Turner Vance, of Refugio, for ap-pellee.
   SMITH, Chief Justice.

This action was brought by Adolfe Garcia, Jr., as plaintiff, to annul his marriage with Josefina Garcia, defendant, which was duly solemnized in Refugio County on May 15, 1935. The annulment was sought on these allegations, that the defendant was enceinte with a child (subsequently born) which she claimed to have been begotten by plaintiff upon the promise of marriage, and through her father demanded that he marry her; that her father threatened plaintiff with criminal prosecution if he refused to marry her; that plaintiff “believed such threats to be real,” •and believed his life was in danger if he refused to comply with said demands, for all of which reasons he proceeded to marry defendant, contending, nevertheless, that he was not guilty of the alleged seduction and was not the father of said child.

The cause was tried without a jury. Plaintiff testified that the marriage ceremony was performed when Josefina was seventeen and he nineteen years of age. He denied having cohabited with her either before or after the ceremony, and, therefore, of course, insisted he was not the father of the child. He further testified that on the day of the wedding “Mr. Frank Low (Justice of the Peace) and Bob Clarkson (Constable) came and got me at my home and took me to the defendant’s house in Woodsboro and said I would have to marry the defendant and Mr. Frank Low married me and the defendant the same day. I went through the marriage ceremony because I thought Mr. Low and Mr. Clarkson were ‘officers and I was afraid not to marry the defendant. Also, the father of the defendant, Jose Deases, sent word by my father that he would send me to the pen in the event I did not marry his daughter, the defendant.” The Justice of the Peace testified that “Prior to the marriage ceremony someone had filed a complaint against Garcia for statutory rape and he was sure that Bob Clarkson, Constable of Precinct No. 1, had a warrant for Garcia’s arrest.” Josefina’s father gave purely hearsay testimony concerning the transactions involved, which testimony, because of its obvious incompetence, can not be considered here, even if not objected to below, and apparently was disregarded by the trial judge. The parties through their respective counsel signed an agreed statement of facts, to which the trial judge appended this statement: “The little boy was exhibited to the Court and I never saw a more striking resemblance than that between the child and this plaintiff.”

No briefs háve been filed by either party to the appeal, which has been regularly submitted, in due order, but both parties, in person and by their respective attorneys, have filed a joint “stipulation for judgment,” in which it' is recited that “they have agreed and represent that the judgment of the trial court in this cause was erroneous and that same should have been in favor of the appellant and the parties herein now agree and consent that the Court of Civil Appeals reverse the judgment of the trial court and render judgment in favor of the appellant against the appellee, annulling and holding for naught the purported marriage of the appellant and appellee on the 17th day of May, 1935, and further agree that the costs of this appeal be adjudged against the appellant.”

The situation is a difficult one, but we have concluded that in deference to a wise public policy — which prohibits the courts from dissolving the marriage relation, when once entered into, except upon clear and satisfactory evidence, and never upon the mere agreement of the parties— we cannot reverse the judgment of the trial court and here render judgment annulling the marriage of plaintiff and defendant, but can only affirm the judgment of the court below.

Plaintiff based his petition for an-nullment upon the sole ground, in effect, that he entered into the marriage relation with defendant in order to avoid the consequences of a threatened criminal prosecution growing out of his prenuptial relations with the defendant. This constitutes no ground for annullment. Art. 4628, R.S.1925; 28 Tex.Jur. p. 724 et seq., sec. 30 et seq.; Speer’s Marital Rights, 3d Ed., sec. 599; Johns v. Johns, 44 Tex. 40; Merrell v. Moore, 47 Tex.Civ.App. 200, 104 S.W. 514; Gass v. Gass, Tex.Civ.App., 182 S.W. 1195; Huntley v. State, 98 Tex.Cr.R. 530, 266 S.W. 505. As was said in Johns v. Johns, supra: “The plaintiff appears to have understood that the marriage would cancel the offense with which he was charged and release him from custody. He knew whether he was guilty or not of the charge against him when he married, and he cannot now cancel the marriage and rid himself of his wife, as he did the prosecution, without showing a better reason for it than he has given in his petition.”

It is true that plaintiff alleged in very general terms fear of bodily harm if he refused to go through with the ceremony, but that allegation was but a conclusion of the pleader, which was negatived by other allegations as well as by the evidence in the case.

The stipulation that judgment may be here rendered annulling the marriage gives no warrant to this court to enter such judgment in the face of the record. The trial judge could not have rendered any other judgment than that entered, and we have no alternative but to affirm.


author: GRAVES, Judge.

text:
    KNIGHT v. SLEDGE MFG. CO.
    No. 11053.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 10, 1940.
    Rehearing Denied Nov. 14, 1940.
    Percy C. Fewell and Dudley W. Peterson, both of Dallas, for appellant. >

    Butler & Price, of Tyler, for appellee.
   GRAVES, Judge.

This general statement of the nature and result of the suit, thought to be correct, is taken from the_ appellee’s brief:

“This suit was brought by the Sledge Manufacturing Company, of Tyler, Texas, against John T. Knight and C. C. Knight, alleged to be a partnership trading as Knight Dry Goods Company, residents of Hunt Company, Texas, on a promissory note in the sum of $245.75, executed by the Knight Dry Goods Company. Plaintiff prayed for judgment for the amount of the note, principal, interest and attorneys’ fees.
“The defendants, C. C. Knight and John T. Knight, filed separate answers. The answer of the appellant, John T. Knight, consisted of a verified denial of partnership; and, according to the answer, Olin P. McWhirter was the' attorney for John T. Knight.
“On October 25, 1939, the plaintiff, Sledge Manufacturing Company, appeared and announced ready for trial, but the defendants, C. C. Knight and John T. Knight, composing the partnership of Knight Dry Goods Company, though having been duly and legally cited to appear and answer, and having filed their answer, made no further appearance; and the court, after having heard the evidence, rendered judgment for plaintiff for the amount of the note, principal, interest and attorneys’ fees and costs of suit. The judgment recites that ‘these defendants have been duly and legally cited to appear and answer herein, and having filed their answers, made no further appearance.’ On October 26, 1939, a motion for new trial was filed, signed by P. C. Fewell, as attorney for the defendant, and verified by the affidavit of P. C. Fewell and none other. The court overruled this motion for a ne.w trial.”

Inveighing against such determination below, John T. Knight alone, as the sole appellant, C. C. Knight, the other defendant in the trial court, not having appealed, presents these two grounds for a reversal:

(1) Neither of the defendants having appeared at the trial, a prima facie case that the two Knights were such partners on February 1 of 1939 in plaintiff’s favor was not made out either by the written instrument received in evidence, purporting to have been signed by John Knight and reciting, “I am a partner in the firm of Knight Dry Goods at Commerce, Texas, 9-24-36”, or by a concession' — -which appellant assumes for argument’s sake, but does not make — -that he had been such a partner on September 24 of 1936.

(2) “The trial court abused its discretion and erred in overruling appellant’s verified motion for a new trial, in view of the fact that said motion showed that appellant’s •only attorney was prevented, through no fault of appellant, from attending the trial of this case and appellant was physically unable to attend the trial for the purpose of presenting his meritorious defense.”

Neither of these contentions, it is thought, should be sustained.

As to the first, as this unimpeached judgment on its face discloses, it being clearly one by nil dicit, the appellant, although he had previously filed an answer, made no further appearance, without having shown an excuse acceptable to the trial court therefor, hence — under our authorities, there being nothing in this record to raise any rebutting presumptions — he can neither complain on appeal of procedural errors made upon the trial, nor of the sufficiency of the evidence received there to sustain the judgment rendered, the pertinent recitations of which are these:

“On this, the 25th day of October, 1939, and at a regular term of this court, came on to be heard the above entitled and 'numbered cause, came the plaintiff, by attorney, and announced ready for trial, but the defendants, C. C. Knight and John T." Knight, composing the partnership of Knight Dry Goods Company, having been duly and legally cited to appear and answer herein, and having filed their answer, made no further appearance; and the court having heard the pleadings of the plaintiff and the evidence, is of the opinion and finds that the defendants, C. C. Knight and John T. Knight, are indebted to the plaintiff in the sum of Two Hundred Ninety and 15/100 ($290.15) Dollars, on this date, being the amount of the principal, interest and attorneys’ fees, due to the plaintiff by the defendants on the note sued on herein:

“It is, therefore, ordered, adjudged and decreed by the Court that the plaintiff, Sledge Manufacturing Company, do have and recover of and from the defendants, C. C. Knight and John T. Knight, jointly and severally, said sum of Two Hundred and Ninety and 15/100 ($290.15) Dollars, with ten per cent interest on the sum of Two Hundred and sixty-three and 77/100 ($263.77) Dollars thereof from this date until paid, and all costs of suit, for all of which let execution issue.’’ Spivey et al. v. Saner-Ragley Lumber Company et al., Tex.Com.App., 284 S.W. 210.

As concerns the second presentment, it appears to this court that appellant’s motion for a new trial below itself discloses the absence of a proper showing of diligence for the non-appearance either of himself or his attorney at that trial, the plain if not necessary imputation therein being that “prior to the rendition of the judgment, he had not made any effort to apprise thfe appellee or its attorneys, or thp court, that the appellant could not appear at the trial on account of sickness, or any other reason, or that the attorney for the appellant could not attend the trial on account of being engaged in the trial of a case in another court.”

This appears from the only two applicable paragraphs of that motion, which were these:

“1. This defendant relied upon his attorney to be present and represent him in the trial of this case, but through no lack of diligence this defendant’s attorney was prevented from attending the trial of this case by being put to trial in a case then pending on and before the District Court of Dallas County for the One Hundred Sixteenth Judicial District of Texas, in a case of Forest v. American Insurance Company of Texas, No. 38305, on the day preceding the trial of this case and required to continue that^trial before a jury at the very time this case was called for trial. Despite this defendant’s attorney did telephone the Judge of this Honorable Court on the day of the trial herein and at the said attorney’s first opportunity and before the rendition of judgment herein and did request that this case be continued until the next day.
“2. This defendant is more than seventy-five years of age and has been confined to his bed most of the time during the past year and because of the suicide of Ira Joe Knight in defendant’s immediate family on the afternoon of October 24, 1939, this defendant was badly upset and physically unable to attend the trial of this case on the twenty-fifth day of October, 1939, and was thereby prevented from being personally present at such trial.”

It thus intrinsically appears that appellant’s attorney neither advised the trial judge, nor attorneys for the appellee, of any reason why he wanted the trial postponed, or continued for one day, or any other period of time; nor did he acquaint them, or either of them, with the alleged age and other infirmities affecting the appellant at that time. Indeed, it indisputably appears that the first time either of these matters was even brought to the attention of the attorney for appellee, at least, was when it appeared in the motion for a new trial.

This situation fails to disclose an abuse of the “large discretion” lodged in the trial court in such instances. 25 Tex.Jur. page 547, paragraph 151, and cited authorities.

What strikes this court as the fatal omission to show the requisite diligence, as to which the burden was on the appellant, was the neglect of his attorney — knowing as he was shown to have, that his own case in the Dallas County court was on trial on October 24 of 1939 — to endeavor to secure from the court, or opposing counsel, or both, a postponement of the appellant’s cause before it was called for trial. These additional authorities appear to fully sustain that conclusion. Tex.Jur., Vol. 25, page 571; Martin v. Clements, Tex.Civ. App., 193 S.W. 437, par. 4; Texas, etc., v. Mitchell, Tex.Civ.App., 68 S.W.2d 628; Cromer v. Sgitcovich, 28 Tex. Civ.App. 193, 66 S.W. 882; Roberts v. Fitzgerald, Tex. Civ.App., 93 S.W. 704.

Pursuant to these conclusions, an af-firmance will be ordered.

Affirmed.


author: YOUNG, Justice.

text:
    DODSON v. BEATY.
    No. 12911.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 5, 1940.
    Rehearing Denied Nov. 2, 1940.

      William M. Cramer and Robert M. Perry, both of Dallas, for plaintiff in error.
    Mayo W. Neyland, of Greenville, and John' D. Reese, of McKinney, for defendant in error.
   YOUNG, Justice.

In a jury case, through an instructed verdict, defendant in error Beaty recovered judgment for $1,215.72, being the value of rents converted ($1,081), with interest thereon from January 1, 1937, to date of trial. J. C. Paulk had purchased the 200-acre Collin County farm (the 1936 rents of which are here in controversy) about December 4, 1934, but did not assume an existing deed of trust indebtedness of more than $15,000, held by the First Trust Joint Stock Land Bank of Chicago. Herein referring to the first lienor just named as the Land Bank, and the other parties as in the trial court, the following facts appear undisputed: That during the crop years 1935 and 1936, the above farm was occupied by defendant Dodson, as tenant of Mr. Paulk, rentals thereof to be paid in kind when harvested, one-fourth of all cotton and cotton seed, one-sixth of all onions, and one-third of all other crops grown each year.' In September, 1935, Paulk filed a bankruptcy petition in the United States District Court, under Section 75, Bankr.Act (Frazier-Lemke Act, 11 U.S.C.A. § 203), and was thereupon adjudged a bankrupt. In December, 1935, the Conciliation Commissioner, to whom this proceeding was referred, entered order staying action against said bankrupt and permitting him to remain in possession of his farm land for three years, or until further order, fixing an annual rental to be paid into court. In May, 1936, the Land Bank, upon bill of review, sought and obtained an order revoking prior orders, as affecting said creditor, and permitting it to proceed with the enforcement of its lien; also, instructing the Commissioner-Referee to make report and recommendation as to whether the bankruptcy cause should be finally dismissed. No creditors ever presented or proved any claim in said federal court proceedings, as against the estate of the bankrupt. On July 30, 1936, Paulk duly executed an assignment of the farm rentals for that year to plaintiff W. H. Beaty, in consideration of a preexisting debt due by Paulk to Beaty, though barred by limitation, which was recorded in the Collin County deed records on August 3, 1936. The Land Bank foreclosed its lien on the 200-acre farm August 4, 1936, under deed of trust sale, and obtained trustee’s deed, which was at once filed in the same county deed records. Defendant M. F. Dodson thereafter, as tenant, on maturity of the crops, collected rentals thereon to the amount of $1,-216.29, paying same over to the Land Bank. At the time J. C. Paulk assigned these inchoate rentals to plaintiff Beaty, the bankruptcy case was still pending, Paulk had not received his discharge, and one year had not elapsed since the inception of. said cause.

On August 31, 1938, the present suit was filed in the District Court of Collin County on the assignment, for the amount of rents alleged to have been converted, the Land Bank being made a party. Subsequently, the latter filed an injunction suit in the United States District Court at Sherman, to restrain the prosecution of plaintiff’s cause in Collin County, claiming prior rights under the pending bankruptcy cause; that the State suit was an interference therewith, and for a decree adjudicating its alleged superior right to all rentals in question. Temporary restraint was granted on said petition by the federal court, but, on later trial of the injunction, on its merits, permanent injunctive relief was denied and'all previous orders dissolved. Immediately upon foreclosure, defendant Dodson entered into a contract with the Land Bank for the year 1937, and the latter’s agent testified that such rental agreement would not have been made if Dodson had not paid to them the $1,081 now in controversy. Notice to defendant Dodson of the aforesaid assignment of rents is quoted: “ * * * This is to notify you that I have this day sold and transferred to Mr. W. H. Beaty, all of the rents that you may owe as a tenant on the farm you now occupy for the year of 1936, and you are hereby authorized to deliver to him, Mr. Beaty, all ‘ of the corn, cotton, cotton-seed and other products gathered by you from said premises and to which I might be entitled to under my contract with you. You ■are hereby authorized and directed to deliver all rents to Mr. Beaty. J. C. Paulk. Witnesses — H. H. Hardin M. T. Loftis I accept the above terms as stated this 31st day of July 1936. M. F. Dodson.”

The Land Bank was dismissed from suit before trial, and defendant’s pleadings, after general demurrer, set forth the following defenses: (1) That J. C. Paulk was in bankruptcy at the time of- 'the assignment and had been ordered to pay such rents into the bankruptcy court for the benefit of the Land Bank, hence the assignment by Paulk to Beaty, under the circumstances, was void; (2) W. H. Beaty’s claim of debt, upon which said •assignment was based, was not listed in Paulk’s bankruptcy scnedule, nor was a claim ever filed therefor in the bankruptcy proceedings, which were later dismissed, wherefore, Beaty had waived any claim for debt against Paulk and was estopped to assert the same as against defendant Dodson; (3) Paulk’s title to the land and the consideration for Dodson’s, lease wholly failed during the year 1936, and said .tenant became no longer bound to pay Paulk or his assignee anything, Dodson’s attornment to the Land Bank relieving him of his liability to the former landlord; (4) breach of warranty, in that, when Paulk’s title failed, defendant was compelled to either move off or enter into a new lease with the Land Bank; and, to ■save his investment and part of the crop, he had to lease the farm from the new ■owner and pay it the balance of rents, which, in turn, released him from any obligation to the prior owner or assignee thereof. In plaintiff’s replication to above defenses were averments of res adjudicata based upon the federal court judgment, following the aforementioned injunction suit. The assignments and propositions of plaintiff in error argue that jury questions were presented involving his defenses, as just outlined.

It appears from defendant’s pleading that Paulk received his discharge in bankruptcy, February, 1937, the instant suit not being filed until August thereafter. The effect of the federal court order permitting the Land Bank to foreclose was equivalent to a declaration that the property was burdensome, and reinvested title in the bankrupt, subject to the contract lien that did not include the yearly crops. Collier on Bankruptcy, 13 Ed., pp. 1738-1744; Central States Life Ins. Co. v. Koplar Co., 8 Cir., 80 F.2d 754 Syl. 1. Prior to the foreclosure sale, Paulk assigned his landlord’s interest in the 1936 rents for a consideration deemed valuable in law, which instrument plaintiff in error attacks as invalid on many grounds. We think the assignment to Beaty lawfully established a priority in the latter to these rents, as against the Land Bank. “ * * * The doctrine well settled by repeated decisions in this state is that crops produced by annual cultivation, either growing or matured, are distinct in nature from the land on which they are cultivated, and that, while ownership of the land, under mortgage or trust deed, may be in one person, title to the crops may be in another, and, when these are harvested or severed in ownership, prior to sale of the land under foreclosure, title thereto will not pass by such sale.” Roth v. Connor, Tex.Civ.App., 25 S.W.2d 246, 247; Millingar v. Foster, Tex.Com.App., 17 S.W.2d 768; Willis v. Moore, 59 Tex. 628, 46 Am.Rep. 284; also see Annotations to Ferguson v. Sullivan, 113 A.L.R. p. 1357.

No creditor ever filed a claim in the bankruptcy case, and defendant Dodson, the tenant, being in no sense such, the rights of creditors were not involved. On the other hand, plaintiff in error, with knowledge of and acquiescing in said assignment, made of himself a sort of trustee or stakeholder in the transaction; and his diversion of the landlord’s interest gave rise to Beaty’s cause of action. Plaintiff in error is in no position to assert the further defenses presented in his amended answer, as Paulk was under no legal 'duty in the premises, save and except to notify his tenant of the assignment, which was done; and the change of ownership through the August foreclosure did not affect Dodson’s 1936 crop lease, under the common-law doctrine of emblements. Dinwiddie v. Jordan, Tex.Com.App., 228 S.W. 126; 13 T.J. Crops, Sec. 15, p. 17. The only issue raised by the undisputed facts of this record is that of priority, as between an assignee of the landlord and the purchaser under foreclosure; and defendant could have protected himself against these known and incompatible claims by a method readily suggestible. 25 T.J., Interpleader, p. 51.

All assignments and propositions of plaintiff in error, after consideration, must be overruled, and the judgment of the trial court affirmed.

Affirmed.


author: LOONEY, Justice.

text:
    CARR et al. v. LANGFORD et al.
    No. 12913.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 12, 1940.
    Rehearing Denied Nov. 2, 1940.
    Cox & Cox, of Sherman, for appellants.
    Webb & Webb, of Sherman, for ap-pellees.
   LOONEY, Justice.

Mrs. R. D. Carr is the widow of R. D. Carr, who died intestate in 1924. The homestead of the family at the time of his death included the 63 acres of land involved in this controversy, being community property, except a fractional interest owned by Mrs. Carr in her separate right. Since the death of Mr. Carr, it seems that the land has been used by Mrs. Carr as a part of her homestead. They had two daughters, who survived their father and are yet living, being Mrs. Texana Carr Hood, wife of J. J. Hood, and Mrs. Tennie Lee Carr Langford, wife of W. N. Langford.

Mrs. Carr and her daughter, Mrs. Hood, joined by her husband, brought this suit against Mr. and Mrs. Langford to partition the 63-acre tract, alleging that, Mrs. Carr owned a 5/9ths interest in the land; that Mrs. Hood owned a 2/9ths interest, and that Mrs. Langford also owned a 2/9ths interest; that the interests of the daughters, Mrs. Hood and Mrs. Langford, were subject to the homestead rights of their mother, Mrs. Carr; that the land was incapable of a fair and equitable division, praying for an order directing sale of the land in the event the court found same incapable of an equitable division, and for general relief.

Mr. and Mrs. Langford answered by general denial and, among other defenses, alleged that, the land was capable of being fairly and equitably divided in kind; that a house is situated on the northwest corner of the tract, occupied at that time by the defendants and their children, praying that, in the partition, the portion of land upon which the house is situated be set aside to them.

In a replication, Mrs. Carr re-asserted her homestead claim to the land, that it was incapable of a fair and equitable division, praying for an order directing its sale, as provided by statute.

The case was tried without a jury. The court found that the land was susceptible of partition in kind; determined that the share or interest of each of the joint owners was as alleged by plaintiffs; that is, that Mrs. Carr owned a 5/9ths interest in the land, and that Mrs. Hood and Mrs. Langford each owned a 2/9ths interest; held that Mrs. Carr was not claiming the land as a homestead; in effect held that, she had waived or abandoned her homestead right; ordered the land divided, and directed that the portion upon which the house is situated (occupied by the Lang-fords) be set aside to them in the partition, taking into consideration the value of the ■ house and improvements so that the same, together with the acreage allotted, would equal in value 2/9ths of the value of the whole; that the remainder of the land should be allotted, 5/9ths in value to Mrs. Carr and 2/9ths to Mrs. Hood.

Plaintiffs’ motion for a new trial having been overruled, they excepted, gave notice of and perfected this appeal.

The defendants move to dismiss the appeal on the ground that there was no final judgment from which an appeal could be taken. This contention is based upon the allegation that the commissioners appointed to divide the land had performed that duty and filed their report in court, to which plaintiffs filed objections, raising issues of fact, and demanded a jury, and that these proceedings are still pending, un-acted upon; therefore that there existed no final or appealable judgment.

The motion to dismiss is overruled. The record contains nothing that supports the contention. The appeal is from the primary judgment which is final and appeal-able.

Plaintiffs say the court erred in finding that, Mrs. Carr owned only a 5/9ths interest in the tract of land, contending that the evidence Showed a larger fractional interest. It may be true that the evidence adduced would justify a finding that she owned a slightly larger fractional interest, but the finding of the court is in exact accord with plaintiffs’ allegations, hence we do not think they can be heard to say that the court erred in the respect under consideration. The statute (Art. 2211, R.C.S., Vernon’s Ann.Civ.St, art. 2211) provides that the judgment shall conform, not only to the nature of the case proved, but to the pleadings as well. This assignment is overruled.

Plaintiffs also contend that the court erred in holding that the land was capable of being fairly and equitably divided in kind. This finding was on one of the controverted issues of fact; the evidence being conflicting, we do not think it can be correctly said that the finding is not supported by evidence. This assignment is also overruled.

Plaintiffs also assign error on the action of the court in holding that Mrs. Carr had no homestead right in the land. That the mere filing of a suit to partition land, subject to a homestead right, does not, as' a matter of law, constitute a waiver or abandonment of the homestead right, was held by the Commission of Appeals in Berry v. Godwin, 222 S.W. 191, 192. This holding was expressly approved by the Supreme Court. As owner of 5/9ths undivided interest in the fee, and a homestead right in the entire tract, Mrs. Carr could have sought partition of the fee without waiving or abandoning her homestead right; especially would this have been true, as she expressly asserted her homestead right, thus forbidding the idea that she had any intention of waiving or abandoning the same. See Jones v. Dewbre, Tex.Civ.App., 13 S.W.2d 233. Although Mrs. Carr alleged and sought to establish the fact that the land was incapable of a fair and equitable division in kind, praying, in the event the court so found, that the land be sold and the proceeds divided, yet, in connection with these allegations, she asserted her homestead rights in the premises. Just what her right to the proceeds of the sale would have been, had the court rendered the judgment she sought, we need not speculate, because no such judgment was rendered. On the contrary, the defendants pleaded, and the court found, that the land was capable of being fairly and equitably divided in kind, hence ordered partition accordingly, but deprived Mrs. Carr of her homestead right therein. In the latter holding, we think the court erred.

In view of the disposition made of the case, we do not deem it necessary to discuss the other questions raised, because, in our opinion, they are rendered immaterial.

It being obvious, we think, that, owing to the fact that Mrs. Carr’s share or interest in the fee is larger than that of either of her daughters, her interest cannot be set apart by lot, as prescribed in Article 6094, R.C.S., but the interests of Mrs. Hood and Mrs. Langford, being equal, should, in our opinion, be selected and set aside by lot, as provided in the statute. See Moor v. Moor, Tex.Civ.App., 63 S.W. 347, 351.

In dividing the land, the share set apart to Mrs. Carr should include the house and improvements, charging her interest, however, with the value thereof in reduced acreage, the remaining acreage to be divided into two shares of equal value and set apart by lot to Mrs. Hood and Mrs. Langford, respectively; the partition to be accomplished so that Mrs. Carr’s share, including the house and improvements, shall equal 5/9ths of the value of the whole, and the respective interests of Mrs. Hood and Mrs. Langford shall each equal 2/9ths thereof.

The decree confirming the report of the commissioners should, as provided by Article 6100, R.C.S., vest title to the fee in each party to the share allotted, as against the other parties, their executors, administrators, or assigns, as fully and effectually as the deed of said parties could vest the same; but the homestead interest of Mrs. Carr in the entire tract, and her right to enjoy the same so long as she may elect to use or occupy the premises as a homestead, should also be confirmed.

The judgment of the court below is reformed in the respects heretofore indicated, and, as reformed, is affirmed.

Reformed and affirmed.


author: MONTEITH, Chief Justice.

text:
    BELSTROM v. BELSTROM.
    No. 11060.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 17, 1940.
    Rehearing Denied Nov. 14, 1940.

      J. S. Bracewell, of Houston, for appellant.
    Lawler, Wood & Childress, Albert J. De-Lange, Frank A. Stamper, Robert P. Be-man, Jr., and Emory T. Carl, all of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the 11th district court of Harris County denying an application of appellant, Wallace A. Bel-strom, for a modification of the terms of a divorce decree which' provided for the payment by him of certain sums for the support and maintenance of his two minor daughters.

Judgment in the original action for divorce, which was brought by appellee, Annie B. Belstrom, was rendered on June 21, 1937. It granted appellee a divorce, awarded her the custody of their two minor daughters and provided that appellant should pay to appellee the sum of $150 per month for their support and maintenance until the older daughter, Margaret, married or reached the-age of 21 years, after which the amount to-be paid for the support of the younger-daughter, Bettie Jane, should be $75 per month until she reached the age of 21 years or married. It provided that said payments should continue until changed by written agreements of the parties or by a decree of court, and that if, by reason of decreased financial ability of defendant, a decrease in such allowance should be reasonably necessary, then such allowance, by written agreement of the parties, might be changed from time to time to provide the proper increase or decrease of said payments, and that if said parties did not agree to a modification of said decree that then the amount of such allowance should be fixed by order of the court on proper application of either party.

This decree was based, except for the divorce feature, on a contract entered into by the parties prior to the rendition of the original divorce decree. The provisions of the contract with respect to the custody and care of the children, and the payments of the amounts for their support, are set forth in the decree in the same language as in the contract.

A supplemental agreement was made on July 9, 1937, and on October 13, 1937, appellant brought an action' attacking the.first judgment. A decree was entered in this action by agreement of the parties confirming the original decree in all respects.

The present action was filed by appellant on August 3, 1938, seeking to reduce the payments to be made under said decree for the support and maintenance of said minor children. Appellant alleged that at the time of the rendition of the original decree he had an earning capacity of $1,000 per month; that at the time of the filing of said action his earning capacity would not exceed $3,000 per year; that for several months he had expended more than $150 for the maintenance and education of his older daughter and that it would be inequitable to require him to contribute anything to the support of his youngest daughter while he was bearing such expenses for the support and maintenance of the older daughter. Appellee, by answer sought an order for contempt and for attorney’s fees.

It was admitted by counsel for appellant that he had sufficient liquid assets to care for the children in such manner as the court might direct.

In a trial before the court, judgment was rendered awarding appellee judgment in the sum of $930.

The court, in its judgment, ordered appellant to pay to appellee the sum of $75 per month for each Of said daughters, except that during such months as appellant might have the care and custody of Margaret Bel-strom, by consent of appellee, the said payment of $150 should be reduced by $75, leaving a balance of $75 per month'which appellant should pay monthly to appellee for the support and maintenance of Bettie Jane Bel-strom.

Findings of fact were filed by the court at the request of appellant. Said findings were excepted to by both parties.

The court found, in effect, that the provision in the original decree providing for payments of $150 per month to appellee for the support of said two minor daughters contemplated and provided that $75 per month should be payable on account of each of the daughters severally, subject to the right of the parties to increase the payments in case the needs of the daughters were greater, and to diminish them in case appellant was unable to pay that amount. The court found:

“That it was not contemplated nor provided that said amounts should be diminished unless, on account of greatly changed financial circumstances it should be impossible for Mr. Belstrom to pay said amount.
“That such provisions are reasonable with regard to each of the children and a minimum of $75 per month should be paid by Mr. Belstrom to Mrs. Belstrom on account of the education, maintenance and support of each of them. Mr. Belstrom is amply able to pay said amounts without any financial embarrassment whatsoever.”

The court found that the terms of said decree providing for payments to appellee for the support and maintenance of said two minor daughters were based on a contract by the parties on full, adequate and valuable consideration; that there was no ground for change of the contracts and decrees theretofore entered; that the failure of appellant to make certain back payments for which judgment was rendered in favor of the appellee may have been induced by statements made by Margaret Belstrom to him to the effect that appellee would not enforce the provisions of the decree with reference to the payment for her (Margaret Bel-strom’s) support and maintenance. The court found, however, that appellee had not waived any of the provisions of said contract or decree or any of her rights thereunder and that she was entitled to the relief decreed and that appellant was not entitled to any change of the decrees. He found, however, that appellant was not in contempt; that no grounds for receivership existed, and that he was not liable to appellee for attorney’s fees.

Appellant contends that the trial court erred in its constructions of the provisions in said decree, which provided for the payment by appellant of $150 per month for the support and maintenance of his two daughters in that it wás contemplated that such sum would be the maximum liability of the appellant as long as conditions were sub-tantially the same as when the original judgment was rendered and that, since conditions had materially changed since the original decree was rendered and appellant was less able to provide for such children than when said decree was rendered, the court abused its discretion in not modifying the decree to meet changed conditions of the respective parents, even though it appeared that appellant was amply able to provide for them.

These contentions cannot be sustained. The court’s findings that it was not contemplated that the payment by appellant should be diminished unless it was found to be impossible for appellant to pay them; that he was amply able to do so, and that it was contemplated that $75 per month should be paid for each daughter, are amply supported by the evidence.

It is the settled rule in this state that it is the primary duty of a father to provide for the maintenance and support of his minor children even though the custody of the children has been awarded to the mother under a divorce decree.

In the case of Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 98, 15 A.L.R. 564, the Supreme Court, speaking through Justice Greenwood, says: “Though bothparents are under the duty, legal as well as moral, to support and educate their children during minority, the duty rests primarily in this state, without doubt, upon the father. * * * In pronouncing a decree of divorce, it is within the power of the court to make suitable provision for the maintenance of the children by means of the property of both parents. Where the court has provided for the children’s support and education in the decree of divorce, such provision excludes liability therefor otherwise than as ordered by the court rendering the decree.”

In the instant case two decrees of court were rendered providing for payments by appellant to appellee for the support and maintenance of his two minor daughters. An express contract and agreement was entered into by the parties prior to the rendition of the original decree by the terms of which appellant agreed to pay appellee the amount for which she recovered judgment. The provisions of said contract with respect to’the payments for the support and maintenance of said minors are set forth in said decrees in the same language as in said contract.

In the case of Smith v. Blanton, Tex.Civ. App., 240 S.W. 651, 654, a father had agreed to pay $300 a year for the support of his children. On the mother’s re-marriage, the father sought custody of the children and a modification of the contract, alleging that said money was not used for the support of of the children. The court in its opinion says:

“The appellant, in his brief, has not attacked the validity of that agreement, and we see no reason why it should not be upheld upon the facts reflected by this record. A divorce does not relieve the father of his natural duty and common-law liability to support and maintain his children. * * *
“And certainly it is competent for one to formally bind himself to perform an obligation which the law has already imposed upon him. * * * We set no reason why Smith and wife could not, upon the eve of their divorce, lawfully contract with reference to those matters. It may be that, where an agreement of this kind has been made by a divorced husband, conditions subsequently might become so changed that in equity he would be entitled to a modification and lightening of the burden assumed; but no such question is here even suggested.”

The holding in the Blanton case is followed in the cases of Ashby v. Gibbon, Tex.Civ.App., 69 S.W.2d 445, and O’Neil v. Graves, Tex.Civ.App., 223 S.W. 264.

In the case of Scott v. Fort Worth National Bank, Tex.Civ.App., 125 S.W.2d 356, in which writ of error was denied, a suit was brought by a trustee against a husband to enforce an agreed decree creating a trust fund for the benefit of a child, whose custody had been awarded to his former wife, with a weekly payment of $50 for her support. The husband had agreed to the decree and the payments to the child on which it was based. The court held that a trial court in a divorce decree might award a lump sum for period payments for the benefit of the child out of the separate property of the husband. A judgment for the sum of $17,000 for accrued amounts was upheld.

A like agreement embodied in a divorce decree was upheld by the Commission of Appeals in the case of Johnson v. Johnson, 14 S.W.2d 805

We cannot sustain appellant’s contention that under Art. 4639a, Vernon’s Ann.Civ.St. the court in the instant case was without authority to render judgment against appellant for any sum for the support of the older daughter, since the record affirmatively showed that such daughter is over 16 years of age.

Said Art. 4639a provides in part:

“* * * and said Court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years * *

While the Supreme Court in the case of Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016, has held that said Art. 4639a dealt only with children under 16 years of age, the decree in the instant case is based not entirely upon the provisions of said Art. 4639a, but upon the terms of a pre-existing contract entered into by the parties and embodied in the divorce decree. Under above authorities appellant is bound by the terms of said agreed judgment and the contract on which it is based.

Appellee’s contention, by cross-assignment of error, that the trial court erred in failing to award appellee reasonable attorney’s fees incurred in prosecuting this action and in not appointing a receiver to enforce payment by appellant of the amounts provided for in said decree for the support of his minor daughters, cannot be sustained.

The trial court in his conclusions found that appellant was not in contempt of court in failing to make said payments; that he was not liable for attorney’s fees incurred by appellee, and that no ground for a receivership existed, since appellant may have been , misled because of statements made to him by Margaret Belstrom to the effect that her mother would waive the payments by appellant with reference to her maintenance and support.

Since the findings of the trial court on which this judgment was based were made upon conflicting evidence, it does not lie within the power of this court to substitute its findings of fact for those of the trial court. Besteiro v. Besteiro, Tex.Com.App. 65 S.W.2d 759; Hewitt v. Green, Tex.Civ. App., 28 S.W.2d 892.

Under the above authorities the judgment of the trial court will be in all things affirmed.

Affirmed. '


author: JACKSON, Chief Justice.

text:
    SALYER v. SHROPSHIRE.
    No. 5218.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 4, 1940.
    Nelson & Brown and Geo. W. McCleskey, all of Lubbock, for appellant.
    Hugh Anderson, of Lubbock, for appel-lee.
   JACKSON, Chief Justice.

The record shows that on May 17, 1934 Charlotte Pool Shropshire during her lifetime made her last will and testament. After her death the will was filed in the County Court of Lubbock County and on October 20, 1938 admitted to probate and M. H. Salyer appointed independent executor of the will.

The testatrix left two minor children, Betty Lou Shropshire age ten and David Dial Shropshire age eight, and M. H. Sal-yer, who was the uncle of these minors, was, in addition to being designated as executor of the will, appointed and qualified . as guardian of the estate of the minors.

J. E. Shropshire, the grandfather of Betty Lou and David Dial, was appointed and qualified as guardian of the persons of said minors.

The court on the agreement of the guardian of the estate and the guardian of the persons decreed that M. H. Salyer as guardian of the estate should pay monthly out of said estate the sum of $40 to the guardian of the persons of the minors for their support, education and maintenance. This agreed judgment also contained this stipulation: “Provided that in case of emergency such as illness and hospitalization necessary and incident thereto the personal guardian shall have the right to apply to the court having jurisdiction for an order requiring the guardian of their estate to pay such additional sums as may be necessary and that thereafter the amount of their needs shall be fixed and determined by the probate court having jurisdiction of the estate of said minors.”

In the early part of 1939 J. E. Shropshire consulted Dr. Everett Dye, a practicing physician of Plainview, Texas, about the health of his wards and after an examination the doctor advised said guardian that Betty Lou was suffering with pyelitis, an infection of the kidneys, and she should have a cystoscopic treatment or operation and that such treatments were not to be had in Plainview. Acting on this advice J. E. Shropshire and his wife went with the minors to Hot Springs, Arkansas, and procured the services of Dr. Wood who examined and prescribed for Betty Lou and gave her one cystoscopic treatment. While in Hot Springs J. E. Shropshire rented a residence which he and the family occupied and paid therefor $1 a day for a period of thirty days. He paid Dr. Wood $112 for his services and paid a drug bill of $7.96. These expenses were incurred by him as guardian of the persons of the minors and paid out of his own funds. He presented a bill for these expenses to the guardian of the estate with a request that it be allowed out of the estate of the two minors, but the guardian of the estate refused to approve or to disapprove the bill and the personal guardian of Betty Lou and David Dial instituted this suit in the County Court of Lubbock County against M. H. Salyer in his representative capacity and against the two minors to recover the doctor’s bill o'f $112, the drug bill of $7.96 and the $30 rent paid for the residence occupied during their stay of thirty days in Hot Springs. He made the necessary allegations in his petition and prayed for judgment against the estate of Betty Lou and David Dial for the sum of $149.96.

The guardian of the estate in his representative capacity answered by general demurrer, general denial, pleaded the provisions of the agreed judgment to the effect that the personal guardian should have the right to apply to the court for an order for any additional sum necessary in emergencies such as illness and hospitalization and alleged that the personal guardian had not complied therewith and therefore was not entitled to recover.

The case was tried before the court without a jury and judgment rendered that J. E. Shropshire have and recover of and from the estate of Betty Lou the sum of $134.96 and from the estate of David Dial the sum of $15 with interest and for costs of suit, from which judgment the appellant, the guardian of the estate,' prosecutes this appeal.

The appellant urges as error the action of the court in overruling his general demurrer to appellee’s petition. His contention is that since the agreed judgment stipulated that for illness and necessary hospitalization the'appellee should apply to the court for an order to appellant to pay the additional sums prior to incurring the expense and the appellee not having done so his petition was subject to a general demurrer.

It will be noted that this provision of the agreed judgment does not stipulate that application should be made prior to the expenditure. If such construction should be placed on this provision one or both of the wards might need emergency treatment which they would be unable to secure with the required promptness because of the inevitable delay consequent upon obtaining an order of the court.

The appellant challenges as error the action of the court in rendering judgment against the estate of Betty Lou for the sum of $134.96 and against the estate of David Dial for the sum of $15 for the reason that such judgments are not warranted either by the pleading or the proof.

The petition sought a joint recovery against the estate of the two minors and prayed that appellee “have judgment against said minors for the sum of One Hundred Forty-nine and 96/100 ($149.96) Dollars, etc.” 25 Tex.Jur. 470. We find no testimony in the record and have been cited to none that any of the expenses sued for by the appellee were for the benefit of the minor David Dial. Hence, the court was not authorized to adjudge the $15 against his estate.

The appellant claims that the testimony fails to show that the $112 paid to Dr. Wood for his services or that the amount of $7.96 paid for drugs was reasonable.

The only evidence on the reasonableness of $112 is found in the testimony of Dr. Dye. After he testified that he had been engaged in the practice of medicine for seven years spending the entire period in Plainview, Texas; that he was not connected with any hospital or clinic; that he did not give cystoscopic treatments and they were not given in Plainview but that he had advised the appellee that Betty Lou should be given cystoscopic treatments, the attorney for the appellee stated to him that there was some testimony in the record to the effect that Betty Lou had been taken to Dr. Wood in Hot Springs, Arkansas, and treated there by him daily for a period of thirty days for which he had charged $112. The attorney then asked the witness if, from his experience and knowledge of the charges for such treatments, such charges were reasonable. The appellant objected to the testimony sought .to be elicited because (a) the facts on which the interrogatory was based were not correctly stated nor disclosed by the record, (b) that the witness had not qualified himself to testify to what a reasonable charge was for such treatments at Hot Springs, Arkansas, where the service was rendered. The objection was overruled and the witness stated, without knowing but assuming a cystoscopic treatment had been given, the charge was not excessive. He was then asked if no cystoscopic treatment was given what would be a reasonable charge for the services. Over the same objections the witness was permitted to say that not including laboratory work a reasonable charge for thirty treatments at the office would be at least $3 per treatment. The witness then stated over the objections that the usual and customary charge for a cystoscopic treatment was from $25 to $55.

It will be noted that the witness had practiced medicine only in the city of Plainvie.w where cystoscopic treatments were not given. He does not state that he had any information from any source as to what such charges usually and customarily were. He did not state that he knew what a reasonable charge for such service would be in Hot Springs, Arkansas, or any other place. There is no testimony in the record that Betty Lou was taken to Dr. Wood daily for a period of thirty days and received treatment each day. Dr. Dye as a practicing physician was qualified to give his opinion on injuries, diseases and the treatments therefor but he did not qualify as an expert on what reasonable charges were for a cystoscopic treatment in Hot Springs.

In our opinion the reasonableness of the fee for surgical or medical services would depend to some extent on the place, the size of the city or town where the service was rendered, the experience and ability of the physician or surgeon and the extent of his business.

In 13 Tex.Jur. 378, para. 218, the author says: “It is not sufficient to show that the plaintiff has been attended by doctors ; there should be evidence of their charges and the reasonableness thereof. It has been held that proof that the plaintiff had paid the item of expense is not evidence of the reasonableness of the charge.”

We find no testimony as to the reasonableness of the drug bill.

The burden of proof was on the ap-pellee to prove that the expenses incurred for the minors because of sickness and hospitalization were reasonable.

In Wheeler v. Tyler S. E. Ry. Co., 91 Tex. 356, 43 S.W. 876, it is held that it was error to submit to the jury the issue of a medical bill agreed to be paid unless the amount sought was shown to be reasonable compensation for the services rendered. See also Houston & T. C. Ry. Co. v. Rowell, 92 Tex. 147, 46 S.W. 630; Owl Taxi Service et al. v. Saludis, Tex.Civ.App., 122 S.W.2d 225.

The testimony failed to disclose how -many office treatments the doctor had given Betty Lou or that she had received treatments daily for thirty days, hence, there was no testimony in the record on which -the doctor could base his opinion on the -reasonableness of the charge of $112.

In Moore et al. v. Rice, Tex.Civ.App., 110 S.W.2d 973, 978, the court said: “Dr. Gray testified to what constituted reason.able compensation for certain enumerated services to a sick man. The evidence fails to show that Rice rendered some of the -mentioned services. The testimony to that extent was improper. Capitol Hotel Co. v. Rittenberry (Tex.Civ.App.) 41 S.W.2d 697; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543, 548.”

For the reasons discussed the judgment is ^reversed and the cause remanded.


author: NORVELL, Justice.

text:
    NIEMANN et al. v. GARCIA.
    No. 10648.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 9, 1940.
    Rehearing Denied Nov. 13, 1940.

      Horace P. Guerra, Jr., of Rio Grande City, and Lester Whipple and Tabor Stone, both of San Antonio, for plaintiffs in error.
    Bismark Pope and John A. Pope, Jr., both of Laredo, for defendant in error.
   NORVELL, Justice.

This is an action of trespass to try title brought by M. M. Garcia against the heirs of William Niemann, deceased, for the recovery of title and possession of Survey Nos. 907, 908, 913 and 917, Starr County Public School Lands. Plaintiff also specially pleaded the five and ten year statutes of limitation. Articles 5509 and 5510, Vernon’s Ann.Civ.Statutes. Defendants pleaded not guilty. Trial was to a jury and from a judgment based upon an adverse verdict, defendants bring the case here by writ of error. The parties, for convenience, will be designated as appellants and appellee.

It appears that appellee and appellants* ancestor, William Niemann, were tenants-in common of the surveys above mentioned, from 1915 until Niemann’s death, in 1918, subject to the unpaid balance of the purchase price due the State; Garcia owning an undivided .two-thirds interest and the remaining one-third interest being held by Niemann.

William Niemann married sometime pri- or to 1891 and his widow, Josephine Nie-mann, survived him. Shortly after her husband’s death, the widow made application for community administration to the County Court of Kleberg County, under what is now Article 3664 et seq., Vernonis Ann.Civ.Statutes. Upon this application, she was appointed community administratrix and gave bond as such. An inventory was filed which failed to list the property involved here.

Josephine Niemann executed the following conveyance to the appellee:

“The State of Texas:
“Kleberg County:
“Know All Men by These Presents :
“That I, Josephine Niemann, of the County of Kleberg and State of Texas, acting for myself and as Administratrix of the estate of my deceased husband, William Niemann, for and in consideration of the sum of Five Hundred Dollars ($500.00), to me in hand paid by M. M. Garcia, of the County of Webb and State of Texas, the receipt of which is hereby acknowledged and confessed, and the further consideration of the assumption and payment by the said M. M. Garcia, of all indebtedness, taxes and interest now due the State of Texas by the said Josephine Niemann, or by the Estate of the said William Niemann, on the following described public school lands, situated in Starr County, Texas, to-wit:
“Section No. 907, Certificate No. 1546-, W. D. Stephenson, Grantee;
“Section No. 908, Certificate No. 1577, T. F. Wilson, Grantee;
“Section No. 917, Certificate No. 1873, R. D. Storey, Grantee;
“Section No. 913, Certificate No. 1781, J. S. Goodwin, Grantee; do by these presents, bargain, sell, release and forever quit-claim unto the said M. M. Garcia, his heirs and assigns, all my right, title and interest, — the same being a one-third (1/3) interest, — in and to each of those certain tracts or parcels of land lying in the County of Starr and State of Texas, and described as follows, to-wit:
“Section No. 9.17, Certificate No. 1546, W. D. Stephenson, Grantee;
“Section No. 908, Certificate No. 1577, T. F. Wilson, Grantee;
“Section No: 917, Certificate No. 1873, R. D. Storey, Grantee;
“Section No. 913, Certificate No. 1781, J. S. Goodwin, Grantee; all the above described lands being public school lands situated in Starr County, Texas.
“To have and to hold the above described premises, together with all and singular the rights, privileges and appurtenances thereto in anywise belonging unto the said M. M. Garcia, his heirs and assigns forever, so that neither I, the said Josephine Niemann, nor my heirs, nor any person or persons claiming under me shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or any appurtenances, or any part thereof.
“Witness my hand at Kingsville, Texas, this ,5th day of January, 1921.
“Mrs. Josephine Niemann, for myself and as Admin-istratrix of the Estate of William Niemann, Deceased.
“Witness: S. W. Muma
“The State of Texas:
“Kleberg County:
“Before me, the undersigned authority in and for Kleberg County, Texas, on this day personally appeared Josephine Nie-mann, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed for herself and in the capacity therein stated.
“Given under my hand and seal of office, this 5th day of January, 1921.
'“(Seal)
“Chas. H. Reese, Notary Public in and for Kleberg County, Texas.”

It is appellants’ contention that the property described in the deed above mentioned was the separate property of William Niemann, and that said instrument conveyed only a life estate in one-third of the one-third interest described in the deed, which terminated upon the death of Josephine Niemann in 1928.* The jury found that the property involved was not the separate property of William Niemann.

Appellants contend, however, that the trial court erred in excluding certain testimony offered by appellants upon this issue. Appellants’ statements under their propositions relating to the exclusion of this testimony do not make it very clear ■as to what the testimony of the witnesses would have been, except for the court’s ruling.

Under Rule 62a for Courts of Civil Appeals, a case- for reversal is not presented simply by showing an erroneous ruling of the trial court on the exclusion of evidence. It is necessary that the record show either, by agreement of the parties, a statement of the trial court or actual testimony of the witness, what the testimony of the witness would be, so as to enable this' Court to determine whether or not the erroneous ruling of the trial court probably caused the rendition of an improper judgment. The 1931 amendments of Articles 2237, 2238 and 2239 of the 1925 Revised Civil Statutes, Vernon’s Ann. Civ.St. arts. 2237-2239, providing that bills of exception may be shown in the reporter’s transcript of the testimony do not change the above rule in any way.

The record is further confused by appellee’s statements, presumably from the record, that the witnesses involved actually testified, without objection, to those facts which appellants contend were excluded. Upon examination of the statement of facts, we find that much of the testimony relied upon by appellee as, having been adduced without objection, was actually brought out on cross-examination by appellee’s attorney. The rule that the improper exclusion of evidence is harmless when it appears that similar evidence was introduced without objection, does not necessarily apply when that evidence is brought out on cross-examination, as the probative force of testimony is often affected by the manner in which it is elicited.

From our examination of the statement of facts, it appears that three witnesses, namely, M. V. Niemann, Lula Niemann and Sam Niemann, children of William Niemann, deceased, and appellants here, would have testified to two facts through “common knowledge” within the family: (1) That the property involved was claimed by William Niemann as his separate property, and (2) that William Nie-mann had inherited some money from his father in Germany, with which he had made the initial payment upon the land in question.

The evidence was offered by appellants “not * * * as evidence of title,' hut simply evidence as to who was claiming the property — to explain the nature and character and the possession of William Niemann and to show the extent of his interest and the character of his holding.”

The trial court excluded this proffered testimony. This was not error, as the testimony is clearly hearsay. The testimony to the effect that money inherited by William Niemann was used to purchase the property is a self-serving declaration by him and the fact that it has been repeated by him or others at the family fireside or within the family circle could not and does not change its nature. It has been held that declarations of a person in possession of land that he paid for it, and it was purchased for him, are not admissible in evidence in favor of one claiming title through him. Gilbert v. Odum, 69 Tex. 670, 7 S.W. 510.

The fact that William Niemann is dead does not render his statements admissible or take them out of the rule prohibiting hearsay testimony. McCormick and Ray, Texas Law of Evidence, p. 447.

Appellants contend that under Chapman v. Kellogg, Tex.Com.App., 252 S.W. 151, the testimony that William Niemann claimed the land as his separate property, according to the information and knowledge of the family, was admissible. The Chapman case holds that where the genuineness of an ancient instrument is attacked by an affidavit of forgery, evidence based upon family information and knowledge is admissible to. show a claim of title on the part of the grantee • under the alleged forged instrument, not as evidence of title, but as a circumstance tending to show that the questioned deed was genuine. In this case, however, the claim of ownership is not offered as a circumstance tending to prove an independent fact, such as the existence of a conveyance or the genuineness of a disputed document. This testimony, if relevant at all, bears directly upon the question of title, and is clearly inadmissible for such purpose. Considering the offer of the testimony for the limited purpose made by counsel, it seems to us that the testimony was irrelevant to any issue in the -case. The particular independent fact, other than title, upon which the testimony bears is not pointed out or made clear. We therefore hold that the bill of exception contained in the statement of facts in regard to this particular matter fails to show reversible error. Mooring & Lyon v. McBride, 62 Tex. 309.

There being no error shown which would justify the setting aside of the jury’s finding that the property involved was the community property of William and Josephine Niemann, we are of the opinion that the deed introduced in evidence, executed by Josephine Niemann, conveyed her interest in the property, as well as that of her deceased husband. She was the duly qualified survivor in community, under appointment of a court having proper jurisdiction, and the deed purported to convey her deceased husband’s interest as well as her own. Iiams v. Mager, Tex.Civ. App., 216 S.W. 422.

If we be mistaken in this, however, we are of the opinion that the evidence supports the jury’s findings favorable to appellee upon his special pleadings of title by virtue of the five and ten year statutes of limitation.

Appellants contend that the deed from Josephine Niemann is insufficient under the five year statute. This deed is not void upon its face, and the “right, title and interest” sought to be conveyed is specifically described as “being a one-third (1/3) interest” in and to the property here involved, subject, of course, to the amount due the State of Texas upon the unpaid purchase price. In determining whether or not a deed is sufficient under the- five year statute, the question is not one of the validity of the deed as a conveyance, but one of notice. There can be no doubt but that the deed here involved was sufficient to give notice of the fact that under it Garcia claimed a one-third interest in and to Sections of Surveys Nos. 907, 908, 913 and 917, as (hat interest is specifically set out in the deed. Merriman v. Blalack, 56 Tex.Civ.App. 594, 121 S.W. 552; Harris v. Bryson & Hartgrove, 34 Tex.Civ.App. 532, 80 S.W. 105.

The further contention is advanced that as certain of the appellants were minors during the period relied upon by appellee for title by adverse possession, the judgment against said parties can not be sustained upon the theory of title by limitation. Specifically, it is urged that appellants Caesar and Sam Niemann did not reach their majority until 1933, and the record shows that the taxes were not paid each year before they became delinquent for each of the five years from 1933.

Appellants’ propositions raising these contentions must be overruled. A limitation title must be specially pleaded. Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057; 41 Tex.Jur. 567. When this is done it is necessary that infancy, a personal privilege, be specially pleaded in avoidance of' the limitation title or such defense will be considered waived. Krause v. Hardin, Tex.Civ.App., 222 S.W. 310; Didier v. Woodward, Tex.Civ.App., 232 S. W. 563; 2 Tex.Jur. 45. The rule stated in City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563, is not applicable to cases such as this, where the persons against whom a limitation title is asserted are parties to the suit.

Being of the opinion that appellants’ assignments and propositions thereunder fail to show reversible error, they are accordingly overruled and the judgment of the trial court is affirmed.