author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    CARNES v. STATE.
    No. 20641.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Withdrawn Jan. 10, 1940.
    W. C. Baker and Jim Weatherby, both of Kerrville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with driving an automobile while drunk, and upon conviction was fined $500 and sentenced to serve thirty days in jail.

The testimony abundantly shows him to have been intoxicated at the time of an unfortunate accident in which his car struck a pick-up and trailer, causing the death of a man and a nineteen months old baby.

There are six bills of exceptions in the record, all of which were properly refused by the learned trial judge, nor were any bystanders’ bills taken.

There was also alleged in the motion for a new trial certain misconduct of the jury, and same was attempted to be set forth in a statement of facts proven on the hearing of such motion. This statement consists, in its entirety, of questions and answers thereto, and therefore we can not consider same. Russell v. State, 120 Tex.Cr.R. 425, 44 S.W.2d 727; Wright v. State, 101 Tex.Cr.R. 503, 276 S.W. 259; Wooten v. State, 121 Tex.Cr.R. 462, 50 S.W.2d 834.

There are no errors presented to us for review. Under the facts, we can only say that we are impressed with the fact that appellant has no grounds upon which to complain of the verdict of the jury, as the proof offered by the State would amply support a much more onerous punishment. The charge of the court seems to admirably present all phases of the law raised by the evidence, and we find no objections thereto in the record.

. Finding no error herein, the judgment is affirmed.

On Affidavit to Withdraw Motion for Rehearing.

HAWKINS, Presiding Judge.

The judgment was affirmed on the 6th day of December, 1939. On December IS, 1939 a motion for rehearing was filed. On the 3d day of January, 1940, appellant filed in this court his affidavit advising that he desired to withdraw his motion for rehearing and permit the judgment of affirmance to become final. The request of appellant is granted and the clerk of this court is directed to issue mandate on the original judgment of affirmance.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    ODOM v. EMPIRE BUILDING & LOAN ASS’N et al.
    No. 12800.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 11, 1939.
    Rehearing Denied Dee. 9, 1939.

      Brame & Brame, of Sherman, for appellant.
    Jesse F. Holt, of Sherman, for appellees.
   BOND, Chief Justice.

On May 15, 1937, appellee, Empire Building & Loan Association, a corporation, chartered under and governed by the laws of Texas relating to building and loan associations, instituted this suit against appellant, Fay Odom, primarily, in trespass to try title and, alternately, for debt and foreclosure of deed of trust lien on certain described property then in the possession of appellant. At the conclusion of the testimony, the cause being tried to a jury, the court instructed a verdict for plaintiff for title and possession of the property in controversy. For convenience, we will designate appellee, Empire Building & Loan Association, as plaintiff, and appellant, Fay Odom, as defendant, as in the court below.

On March 13, 1928, defendant and her then husband, J. B. Odom (since separated by divorce), borrowed $2,750 from plaintiff, for the purpose of taking up, renewing, adjusting, and extending certain indebtedness and liens against the land involved in this suit; and, on the same date, a deed of trust was executed on the land by J. B. Odom, in which Fay Odom appears to have fully joined. The note provides for payment of principal and interest in equal monthly installments and expressly declares that “if default shall be made in the payment of any installment of interest hereon, -or if any dues or fines on said shares shall remain unpaid when due, and if such default in interest, dues or fines shall continue for four months after due date, then, at the option of the legal holder here•of, the whole amount of this note then unpaid shall at once become due and payable.” The deed of trust makes similar maturity acceleration, the usual provisions for sale by trustee, at public vendue at the courthouse door, etc., and recites: “The note herein and hereby secured is this day given m lieu of, substitution for, and in renewal and extension of the following: (here is listed the preceding indebtedness against the land, aggregating the sum evidenced by the renewal note). It is distinctly understood and agreed that the note herein and hereby secured is given for money this day advanced by the Empire Building & Loan Association, a corporation, of Dallas, Texas, in taking up, purchasing, renewing and extending the above mentioned indebtedness, and it is also understood and agreed that the taking of this Deed of Trust shall in no manner or way waive, affect, release or impair the validity of the liens securing the payment of said indebtedness and any and all liens securing the payment of same shall remain in full force and effect until the full and final payment of the note herein and hereby secured, and the said Empire Building & Loan Association, its successors and assigns, are hereby subrogated to all the liens, rights, titles, interest and remedies under and by virtue of any and all the above mentioned liens, and shall have the absolute and uncontrolled right of application of payments thereon. It being distinctly understood and agreed that the lien hereof, and any and all liens, securing the payment of the note herein and hereby secured, are first and prior liens upon the property herein conveyed. The note herein and hereby secured being this day given and accepted in renewal and extension for the accommodation, and at the special instance and request of, the grantors herein by the said Empire Building & Loan Association, the beneficiary herein, its successors and assigns, are hereby continued in all the rights, legal and equitable, conferred by the lien herein, and any and all the above mentioned liens, the existence and validity of all of which are hereby expressly acknowledged and confessed by the undersigned.” The deed of trust also provides for acceleration in default of installments for shares of stock subscribed in the Corporation.

On August 4, 1931, in accordance with the terms of the above deed of trust, the property was sold by trustee to the Empire Building & Loan Association and, in accordance therewith, a trustee’s deed was executed and delivered to the purchaser, reciting the authoritative facts provided in the deed of trust for the sale.

The sale to the Empire Building & Loan Association is challenged by defendant on several grounds: (1) That the deed of trust was never acknowledged by Fay Odom, who was at the time a married woman, occupying the property as her homestead; (2) that the sale of the property was not made at the courthouse of the county where the property was located, there being no designation of the place where the sale took place as a courthouse, by the Commissioners’ Court of Grayson County; (3) that there existed ho cause for acceleration of the indebtedness, therefore, the sale was premature; and, (4) that plaintiff’s suit was barred by the three years’ • statute of limitation, Vernon’s Ann.Civ.St. art. 5507, the defendant having occupied the premises, using and enjoying same as her homestead, for a period of more than three years prior to the institution of the suit. The assignments are followed by numerous applicable propositions, and we will discuss briefly all propositions under the contentions above stated.

On the first contention, defendant sought to prove, and offered testimony to the effect, that the deed of trust in question was signed by her only in the presence of her husband; that-the notary’s certificate to the deed of trust, purporting her acknowledgment thereof, was false, and 'that she did not appear before the notary public in the execution of it. The court refused the proffered testimony, for the reason that defendant’s answer to plaintiff’s suit did not raise the issue of such deficiency in the execution of the deed of trust. If such inquiry was a material issue in this case, the action of the court would require a reversal and remand of the cause. The defendant interposed a plea of “not guilty” to plaintiff’s suit in trespass to try title. Under such plea, in pursuance of Article 7373, R.S., the defendant was entitled to give in evidence any lawful defense to defeat plaintiff’s title, except the defense of limitation, which exception alone the statute provides shall be specially pleaded. Watson v. Aiken, 55 Tex. 536; Bracken v. Bounds, 96 Tex. 200, 71 S.W. 547; Barth v. Green, 78 Tex. 678, 15 S.W. 112; Pierce v. Texas Rice Development Co., 52 Tex.Civ.App. 205, 114 S.W. 857; Guest v. Guest, 74 Tex. 664, 12 S.W. 831; McKamey v. Thorp, 61 Tex. 648; Silverman v. Harmon, Tex.Civ.App., 250 S.W. 206; Taylor v. Ferguson, 87 Tex. 1, 26 S.W. 46; Salazar v. Ybarra, Tex.Civ.App., 57 S.W. 303; Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796; Johnson v. Flint, 75 Tex. 379, .12 S.W. 1120; Fertitta v. Toler, Tex.Civ. App., 43 S.W.2d 467; Kauffman & Runge v. Brown, 83 Tex. 41, 18 S.W. 425; Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427; Collier v. Ford, Tex.Civ.App., 81 S.W.2d 821; Watson v. Hewitt, 45 Tex. 472; Hardy v. Brown, Tex.Civ.App., 46 S.W. 385; Freestone County v. McKinney, Tex.Civ.App., 285 S.W. 340; Tyler v. Thomas, Tex.Civ.App., 297 S.W. 609; City Nat. Bank of Houston v. Moody, Tex.Civ.App., 115 S.W.2d 745. Therefore, under the facts of this case, if the deed of trust was a valid obligation without the signature and acknowledgment of defendant, then, obviously, the action of the trial judge, in refusing the defendant’s proffer, was not error, although he may have assigned an incorrect reason therefor.

The facts are undisputed: On May 5, 1928, J. B. Odom, who was then the ■husband of defendant, Fay Odom, purchased the land in controversy from Pat Wilson and wife. At that time, and for a long time prior thereto, debts and liens had been created and were in existence against the property. These debts and liens had been assigned, by proper legal transfers, to the Empire Building & Loan Association, and were valid and subsisting legal liens against the property before the homestead privilege of Odom and wife attached to the property. On March 13, 1928, J. B. Odom and Fay Odom signed the note and deed of trust in question, in lieu of, substitution for, and in renewal and extension of the prior debts and liens. It is well settled by numerous authorities that, the'joinder of the-wife and her privy acknowledgment to renewal and extension of debts and liens are wholly unnecessary. The husband alone, without the wife’.s joinder, has the right to renew, extend, and adjust all prior existing debts and liens, or even to-sell the homestead to satisfy such indebtedness. The only limitation to the husband’s right of extension and adjustment of such encumbrances, or sale of the homestead to-satisfy such liens, is that, he act in good faith and not in fraud of the wife’s homestead rights. Under the laws of this state, and universally, the husband is the head of the family, and it devolves upon him to-provide the homestead; and, equally so,, to protect it from the inevitable consequence of foreclosure in default of liens, thereon. Indeed, during the life of the husband, the rights of the wife are passive; his are active. The Texas Jurisprudence gives him the absolute control and disposition of their property, not in fraud of his wife’s privileges. The husband has, and usually exercises, dominion over their entire property, even the homestead, to protect it from the fatal consequences of delinquent encumbrances. There is no intimation in this record that the husband in this case, in executing the renewal and extension note and deed of trust, acted in fraud of his wife. The record disclosing that the preceding encumbrances against defendant’s after-acquired homestead had to be renewed or discharged, or the liens adjusted, thus, the renewals had precedence over defendant’s homestead privileges. Therefore, we think, the note and deed of trust, the basis of the sale, and trustee’s deed to the plaintiff, executed by the husband in renewal and extension of the prior debts and liens, created no new encumbrance on the property, and they were such that the joinder of the wife was not necessary to effect their validity. The action of the trial court, in excluding the testimony, being harmless under the facts of this case, appellant’s assignments on the issue are each overruled. We are supported in our conclusion by the following authorities: White v Shepperd, 16 Tex. 163; Clements v. Lacy, 51 Tex. 150; Investors’ Mortg. Securities Co. v. Lloyd, 11 Tex.Civ.App. 449, 33 S.W. 750; Hall v. Hix, Tex.Civ.App., 297 S.W. 491; Texas Homestead and Other Exemptions, Nunn, p. 65, Sec. 20. Law of Marital Rights in Texas, Speer, 3rd Ed., p. 574; 22 Tex.Jur., Sec. 203, p. 291.

As related above, the deed of trust expressly directs a sale of the mortgaged property, at public vendue at the courthouse door of Grayson County, Texas, in which county the land is situated. The sale, however, took place at the door of a building in the City of Sherman, Grayson County, known as the Junior High School Building, pursuant to notices posted for such sale. In 1930, the courthouse of Grayson County was destroyed by fire, leaving only the vaults of the county and district clerk intact. The Commissioners’ Court leased the Junior High School Building, expressly reciting in the lease that, same shall be used “as a temporary courthouse to accommodate the various officials and their office force”, and immediately thereafter, on account of such situation, the two district courts, county and commissioners’ court of Grayson County, and all of the executive officers of the county, moved into the temporary location and thereafter transacted all the official business of the county at the leased premises, until about March, 1932; all sales under foreclosure and execution were had at the temporary location, until the former courthouse was restored. We think, the leasing of the building as a temporary courthouse, its use by the county for county business, and the holding of court by the various district, and county judges, is tantamount to a formal dedication of such structure as a courthouse, within the contemplation of the parties to the deed of trust. It was the only place, at the time, where the affairs of the county were transacted, where all sales under execution and foreclosure took place, and was so used at the time of the sale of the premises in controversy. We fail to see merit in defendant’s contention that, the place where the sale took place was not the then courthouse for Grayson County. Accordingly, the assignments relative to the contention made are overruled.

The Empire Building & Loan Association was created under Art. 852, et seq., R.S. for the purposes authorized, as indicated by its name. The note and deed of trust involved in this suit represented an ordinary building and loan transaction, in which the borrower purchased stock in the Association agreeing to pay for it in small monthly installments; it being contemplated that, when the stock matured, it would be applied, at the borrower’s option, to the liquidation of the note, as authorized by the laws of Texas governing such Association. The loan obligated the borrowers to make the monthly payments on the stock as well as monthly payment of interest and principal, and the maturity of the stock also matured the note. The defendant and her husband purchased twenty-eight shares of the stock, of par value of $100 each. The acceleration provision of the loan provides that, if there is default of payment of either interest or the stock installments, and such default continue for four months, the whole of the note thereof shall become due, and expressly authorizes, on account thereof, foreclosure under the terms of the deed of trust.

The record shows conclusively that, prior to the time of the foreclosure, 41 monthly stock installments had accrued, and only 18 of them had been paid, leaving twenty-three installments delinquent. It is evident, therefore, that they were more than four months delinquent, and, under the terms of the loan, the balance due on the note was declared due, thus empowering the plaintiff to sell the land under the powers of the deed of trust. We overrule the assignments challenging the prematurity of the foreclosure.

We have carefully considered defendant’s further assignment as to her plea of limitation, finding no merit therein, without further notice, it is overruled.

From the above, we conclude that the trial court did not err in peremptorily instructing the jury in favor of the plaintiff for the title and possession of the land in question; the judgment of the court below is affirmed.

Affirmed.


author: CRITZ, Justice.

text:
    Ralph A. BEATON et al., Plaintiffs in Error, v. Lawton McFARLAND et al., Defendants in Error.
    No. 7577.
    Supreme Court of Texas.
    Jan. 3, 1940.
    Hamilton, Lipscomb, Wood & Swift, of Dallas, for Beaton.
    Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for Flippen.
    Frank Wilson and J. L. Zumwalt, both of Dallas, for defendants in error.
   CRITZ, Justice.

The opinion of the Court of Civil Appeals, which is reported at 126 S.W.2d 719, correctly states the record and the law questions involved in this case, and correctly decides such law questions. Fidelity Union Insurance Co. v. Tate Hutchins et al., Tex.Sup., 133 S.W.2d 105.

In the case just cited we, in principle, fully discussed and decided the law questions involved in the retrial of this case. As we interpret it, the opinion of the Court of Civil Appeals in this case is in harmony with our opinion in the Hutchins case. We therefore adopt the opinion of the Court of Civil Appeals as so interpreted.

The judgment of the Court of Civil Appeals, which reverses the judgment of the 'district court and remands the cause to the district court for trial on its merits, is affirmed.


author: PER CURIAM.

text:
    S. E. LANE, Plaintiff in Error, v. COMMUNITY NATURAL GAS COMPANY, Defendant in Error.
    Application No. 24650.
    Supreme Court of Texas.
    Jan. 10, 1940.
    Ned Elnor Moore and DeWitt Bowmer, both of Temple, for plaintiff in error.
    Thompson, Knight, Baker, Harris & Wright and Pinkney Grissom, all of Dallas, and Cox & Brown and W. R. Brown, all of Temple, for defendant in error.
   PER CURIAM.

The application for writ of error is dismissed for want of jurisdiction, correct judgment. In entering such order we do' not approve the holding of the Court of Civil Appeals, 133 S.W.2d 200, that the trial court should have sustained an objection made to the special issue upon the amount of recovery for its failure “to give the jury the elements of expense to which the plaintiff would be subjected during her lifetime in providing for her maintenance and support, probable illness or other proper and natural items of expense in connection therewith.” We do not believe that the holding is supported by the authority cited for it.


author: HAWKINS, Presiding Judge.

text:
    Marvin HEADRICKS, Appellant, v. STATE of Texas, Appellee.
    No. 20840.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Joe J. Newman, of Trinity, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault with intent to murder, punishment assessed being two years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not further desire to prosecute his appeal, and at his request the same is dismissed.


text:
    Ed BOWMAN v. STATE.
    No. 20907.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.

      T. R. Odell, of Haskell, and M. F. Bill-ingsley, of Munday, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile upon the public road while appellant was intoxicated, punishment being assessed at a fine of fifty dollars and five days’ confinement in the county jail.

Appellant has filed his affidavit advising the court that he does not desire to further prosecute his appeal, and at his request the same is ordered dismissed.


author: HAWKINS,‘Presiding Judge.

text:
    Vince LERMA, Appellant, v. STATE of Texas, Appellee.
    No. 20882.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    Duhig & Romberg, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS,‘Presiding Judge.

Conviction is for robbery, punishment assessed being five years in the penitentiary.

Appellant has filed his affidavit advising this court that he does not further desire to prosecute his appeal, and at his request the same is dismissed.


author: BEAUCHAMP, Judge.

text:
    Willie THORNTON v. STATE.
    No. 20824.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    W. M. Zachry and D. M. Wilson, both of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for theft over the value of fifty dollars; penalty assessed at confinement in the penitentiary for two years.

Appellant has filed a written motion, duly verified, requesting the privilege of withdrawing his appeal. The request is granted and the appeal is ordered dismissed.


author: WALKER, Chief Justice.

text:
    FIRST FEDERAL SAVINGS & LOAN ASS’N v. J. R. IVY.
    No. 3575.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1939.
    H. C. Cunningham, of Beaumont, for plaintiff in error.
    Baker & DeLee, of Port Arthur, for defendant in error.
   WALKER, Chief Justice.

This appeal is on the docket of this court from the county court at law of Jefferson county. A reviewi of the record disclosed no error. The judgment of the lower court is affirmed without written opinion. Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.


author: O’QUINN, Justice.

text:
    E. H. DOWNS, Appellant, v. Herbert REED, Appellee.
    No. 3548.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1939.
    Rehearing Denied Dec. 20, 1939.
    Ramsey & Ramsey and Joe J. Fisher, all of San Augustine, for appellant.
    Sanders & McLeroy, of Center, for ap-pellee.
   O’QUINN, Justice.

This suit originated in the justice court of Precinct No. 2 of Shelby County. Reed sued Downs for damages to his truck in the sum of $182.32 alleged to have resulted from Downs’ negligently driving his automobile into said truck. Judgment was for Reed in the sum of $182.32. The judgment was appealed to the county court of Shelby county. It was there tried to a jury and judgment was again for Reed in said sum. This appeal is from that judgment. From a careful consideration of the record, it is our conclusion that the judgment should be affirmed, and it is so ordered. Judgment affirmed without written opinion. Associated Indemnity Corporation v. Gatling, Tex.Civ.App., 75 S.W.2d 294; Wade v. Pratt, Tex.Civ.App., 126 S.W.2d 1216; Farmers State Bank v. Harris, Tex.Civ.App., 126 S.W.2d 1216; General Motors Acceptance Corporation v. Mallett, Tex.Civ.App., 130 S.W.2d 1119. Affirmed.


text:
    R. & R. MOTOR COMPANY, Inc., et al., Appellants, v. DEL RIO BANK & TRUST COMPANY, a Banking Corporation, Appellee.
    No. 10618.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Rehearing Denied Dec. 30, 1939.
    Ditzler H. Jones, of Uvalde, for appellants.
    John L. Dodson, of Del Rio, for appellee.
   PER CURIAM.

Affirmed without written opinion.


author: SHARP, Justice.

text:
    WICHITA FALLS & OKLAHOMA RY. CO. et al. v. PEPPER.
    No. 7243.
    Supreme Court of Texas.
    Jan. 10, 1940.

      Taylor, Muse & Taylor, of Wichita Falls, and Thompson & Barwise and Luther Hudson, all of Fort Worth, for plaintiff in error.
    Bunting & Stine, of Henrietta, for defendant in error.
   SHARP, Justice.

The principal question presented here relates to the power of the trial court to enter judgment in a cause submitted to a jury on special issues, in the absence of the submission to the jury of certain issues, and a finding made thereon by the jury, under the provisions of Art. 2190, Revised Civil Statutes, Vernon’s Ann. Civ. St. art. 2190.

The parties hereto will be designated as they were in the trial court. A. C. Pepper sued the Wichita Falls & Oklahoma Railway Company and the Wichita Valley Railway Company for damages to his growing crops, based upon the negligence of the defendants by causing flood waters to cover the land. The. case was submitted to the jury on special issues, and judgment was rendered for plaintiff. The Court of Civil Appeals at Fort Worth affirmed the judgment of the trial court. 101 S.W.2d 365. In view of the confusion that has resulted from the construction of Art. 2190, this court has decided to re-examine the question and reannounce rules relating to the submission of special issues. For this purpose a writ of error was granted.

The gist of defendant’s main contention is that, this being a suit for partial damages to crops, and not for total loss, no proper judgment could be rendered on the verdict of the jury as to the loss sustained to the cotton crop because of the failure of the trial court to submit to the jury an issue as to what amount of cotton was actually raised by plaintiff on the land, and because of such failure the trial court could not take that question from the jury and determine same for the purpose of rendering a judgment on other issues answered.

Pepper was occupying certain land as a tenant, and alleged that his damage resulted from the failure of defendants to maintain adequate culverts and sluiceways beneath its roadway, and that defendants had negligently piled a large number of timbers or piling in the borrow pit, which obstructed the flow of water from the land occupied by plaintiff. He claimed damages for the total destruction of a three-acre garden tract and partial destruction of his cotton crop. The jury found that the defendants failed to maintain adequate culverts and sluiceways.

The case was submitted to the jury on special issues, and the jury found that the acts of the defendants complained of by plaintiff constituted negligence, and that such negligence was the proximate cause of the damage to plaintiff’s crops and garden.

Special issue No. 10 and the answer of the jury thereto read as follows: “What do you find, from a preponderance of the evidence would have been the number of bushels of corn that plaintiff would have raised from the corn that was up on June 13th had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that same was. damaged by the acts of the defendants) ? In answering this issue you will take into consideration the three-thirds of the crop and not merely the tenants portion.” Answer : “3,760 bushels.”

In answer to special issue No. 10a the jury found that the plaintiff produced from the corn that was up on June 13th 1,575 bushels. In answer to special issue No. 11 the jury found that the reasonable cost after June 13th of cultivating, gathering, and marketing said corn was $205.50. In answer to special issue No. 12 the jury found that the value per bushel of the corn mentioned in special issues Nos. 10a and 11 would have been 50$⅛ per bushel.

Special issue No. 13 and the answer of the jury thereto read as follows: “What do you find from a preponderance of the evidence would have been the number of bales of cotton of an average weight of 500 pounds that plaintiff would have raised had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that the same was damaged by the acts of the defendants) ?' In answering this issue you will take into consideration the four-fourths of the crop and not merely the tenant’s portion.” Answer : “28 bales.”

In answer to special issue No. 14 the jury found that the reasonable cost after June 13th of cultivating, picking, ginning, and marketing the cotton, had it not been so damaged, was the sum of $586.10. In answer to special issue No. 15 the jury found that the value per pound of said cotton at the time of maturity and marketing same was ■11‡ per pound. In answer to special issue No. 16 the jury found that the reasonable value of the plaintiff’s garden to him was $300. In answer to special issue No. 17 the jury found that the garden which was growing on June 13th was totally destroyed. In answer to special issue No. 18 the jury found that plaintiff raised 200 bushels of corn after June 13th; and in answer to special issue No. 19 that the value of such corn was 50^ per bushel. In answer to special issue No. 20 the jury found that the reasonable cost of planting, cultivating, and marketing said corn was $23. In answer to special issue No. 21 the jury found that plaintiff raised 475 bushels of millet after June 13th, and further found that the value of said millet was $1 per bushel. They further found that the reasonable cost of planting and marketing said millet was $207.

The jury also found; in answer to special issue No. 24, that plaintiff would make 2,000 pounds of maize; and in answer to other issues found the value thereof. Such issues are not material here.

At the conclusion of the testimony the defendants requested the trial court to instruct the jury to return a verdict for defendants,- — which the trial court refused. After the conclusion of the testimony, and before the court had read his charge to the jury, the defendants urged only the following objections to such issues:

“Now come defendants, * *, * and specially object and except to that part of Special Issue No. 10, as follows: ‘If you have found that same was damaged by the acts of the defendants’; and in this connection object and except to the action of the Court in not including the word ‘negligent’ just preceding the word ‘acts’ in said clause for the reason that the defendants would not be liable in anywise to the plaintiff for any acts except negligent acts and the issue as given is prejudicial to the rights of the defendants.
“The defendants also object and except, to the Special Issue No. 13 in the same way and manner as set out in the preceding objection and exception.”

The Court of Civil Appeals, 101 S.W.2d 365, 367, in its opinion makes the following statement: “The testimony of plaintiff, which in this respect is uncontradicted, shows plaintiff gathered three bales of cotton from the premises. The defendants in their brief make an extensive and complete calculation in the form of an account as to the probable elements the court must have considered in arriving at the judgment entered. The plaintiff agrees that the statement so made is substantially correct. We have verified these figures by the record and find they are well supported by the testimony. It was found by the jury that plaintiff should have made 28 bales of cotton; that it would require an expense of $586.10 to cultivate, harvest, and market the cotton after the date of the overflow, had it not been damaged; that the cotton would have been worth $55 per bale. The court, in making up his judgment, deducted from the 28 bales the 3 bales shown to have been made and gathered, leaving a loss to plaintiff of his three-fourths interest in the remaining 25 bales and from the value of these he deducted the expense found by the jury to be necessary in cultivating, harvesting, and marketing, the result found by the court being a net loss on the cotton to plaintiff of $445.65.”

The Court of Civil Appeals also makes the following statement:

“The jury found in response to a special issue that the garden was totally destroyed, and to another issue, that its reasonable value to the plaintiff was $300. The testimony is not entirely clear as disclosed by the statement of facts, that the value of the garden would have been worth to plaintiff the amount claimed, over and above the expense of finishing its cultivation and the canning of that part which would not be consumed during the growing season. He testified that his own family, and those of his two sons and his hired hand, would consume a part of it before the canning season, but that by their own labor they would have canned the remainder for home consumption; that $10 in labor would have cultivated it and $25 or $30 would have purchased necessary cans; yet he finally testified that his estimate of its value of $300 was arrived at by taking all of these things into consideration and that it would be worth $300 to him after it was canned. The jury had all of this testimony before them and found its value to be $300, and we find no reason to disturb their verdict.
“The testimony further disclosed that after the destruction and damages to his corn and cotton, he planted late forage crops and realized approximately $188.33 therefrom. The court’s judgment was in favor of plaintiff for $1,079.65. An analysis of the jury’s verdict shows his net loss to the corn was $528.33; his loss to the cotton was $445.65, and to the garden $300; these added together make a total of $1,-273.98 and deducting the value of the late crop of $188.33 leaves the total net loss of $1,085.65.”

In response to certain issues the jury found that plaintiff would have made 28 bales of cotton, which was of the value of eleven cents per pound, or $55 per bale, and that plaintiff’s expense in producing the crop would have been $586.10. No issue was submitted to the jury as to the number of bales of cotton plaintiff actually did make on.his land, nor was such issue requested. In submitting issues with reference to plaintiff’s garden, which was claimed to have been totally destroyed, •only one issue was submitted, which inquired as to the value of the garden to plaintiff. No issue was submitted as to the ■expenses necessarily incident to maturing, ■gathering, and canning the produce from the garden, nor was such issue requested. Plaintiff testified that he estimated that he would make three bales off the nine acres, not destroyed, and that he had picked two "bales off the nine acres, and had another to pick. The court deducted from the 28 bales the three bales testified to by plaintiff, and entered judgment for plaintiff for the sum of $445.65, the net amount of the three-fourths interest in the cotton, less the expense found by the jury to be necessary for cultivating, harvesting, and marketing same.

We shall now consider the most important question raised in this case. The railroad companies challenged the right of the trial court, in the absence of a finding by the jury, to find that three bales of ■cotton were made, and in the absence of .an issue as to the amount of expenses necessary to the production and canning •of the products as raised by the evidence, and enter judgment for plaintiff for these items as was done. This question involves the construction of Art. 2190, Revised Civil 'Statutes, which relates to the submission of special issues. The Court of Civil Appeals held that the failure of the trial court to submit to the jury an issue as to the amount of cotton raised by plaintiff for the year 1935 was not error. The court said:

“The ultimate issue of loss to plaintiff by the negligent acts of defendants was submitted to the jury and found in favor of plaintiff, the fact issues to follow, which were incident and supplemental to that ultimate issue, are those complained of by defendants. The holding in the case of North v. Atlas Brick Co. (Tex.Com.App.) 13 S.W.2d 59, 61, clearly illustrates the point and we adopt the language there used, which said:
“ ‘An issue submitted in part, or even defectively submitted, with the acquiescence of the parties, is not waived. It is like the ordinary issue of negligence in a personal injury case. The complete ultimate issue is usually made up of four elements or subsidiary issues, being those of (1) the fact alleged, (2) whether the same be negligence, (3) whether such negligence be the proximate cause of injury, and (4) the amount of damage. Now, if one or more of such elements, or issues as they are usually denominated, be submitted and the others not submitted nor requested to be submitted, such issue is not waived, but the court may find, and under the statute is deemed to have found, the unsubmitted issues in such way as to support the judgment rendered by him.’ ”

It is difficult to .precisely define a rule that will be elastic enough to meet the ends of justice in all cases. Rules and statutes relating to practice and procedure have always been a prolific source of controversy. It seems impossible to adopt a rule or statute that will meet all the necessities that may arise in the trial of lawsuits. An examination of the decisions construing the rules and statutes relating to practice and procedure in this State shows a marked conflict of decisions on that subject. In the case of Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, this court reviewed some of the rules, statutes, and decisions touching this subject, and pointed out a few of the conflicts.

The rule before us has undergone several changes. The First Legislature, on May 13, 1846, passed an elaborate Act, consisting of many sections, regulating pleadings, issues, verdicts, etc. 2 Gammel’s Laws, pp. ■ 1669, 1698; Laws of 1846, p. 392; Art. 1469, Paschal; Art. 762, Hartley. This Act was carried into the Revised Civil Statutes of 1879 as Art. 1331 which was carried into the Code of 1895 as Art. 1331 without change. In 1897, Art. 1331 was amended. Article 1331 as amended went into the 1911 Code as Art. 1985. It also went into the 1925 Code unchanged as Art. 2190. In 1931 the 42d Legislature, Ch, 78, S.B. 95, amended Art. 2190, Vernon’s Ann.Civ.St. art. 2190.

The opinion rendered by this court in the case of Silliman et al. v. Gano et al., 90 Tex. 637, 39 S.W. 559, decided April 29, 1897, was perhaps the moving cause for the amendment of the law. In response to the suggestions made by this court in that opinion, the Legislature in 1897 amended Art. 1331. Thus it will be noted that the Legislature modified the rigid rule originally expressed in Art. 1331 before its amendment. From time to time the Legislature has amended the law, as pointed out above, and it is now Art. 2190. Under the law as it now exists, the duty is placed on the court, when a case is submitted to the jury, to “submit all the issues made by the pleading and evidence.” The article further provides that “failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment.” The article further provides: “Upon appeal or Writ of Error, an issue not submitted and not requested is deemed as found by the Court in such manner as to support the judgment if there is evidence to sustain such finding.”

The Legislature did not see fit to place in the article the definition of an “issue” as described therein. In Freeman v. McAninch, 87 Tex. 132, 135, 27 S.W. 97, 98, 47 Am.St.Rep. 79, it is stated in general terms that “an issue is the question in dispute between the parties to an action, and, in the courts of this state, that is required to be presented by proper pleadings.” For further definitions see 4 Words and Phrases, First Series, p. 3792; 4 Words and Phrases, Third Series, pp. 566, 567, and 568.

Much has been written on this subject. The decisions are in hopeless conflict. See Speer’s Law of Special Issues, p. 409 et seq. and p. 579 et seq. See, also, Texas Law Review, Vol. XIV, Number 4, p. 538, and Texas Law Review, Vol. XVI, Number 1, p. 95. Some contend that this court in the case of Moore v. Pierson, 100 Tex. 113, 94 S.W. 1132, construed the statute differently' from what it was construed in the case of Ormsby et al. v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084. These two decisions seem to furnish the principal basis-for the contentions. Moore v. Pierson involved the construction of Art. 1331, as-amended. That suit involved a claim for damages based upon two separate trespasses, each constituting a separate ground for recovery. The trial court submitted the case to the jury on special issues, and only one of the trespasses claimed by plaintiff was submitted to the jury. The other trespass was entirely omitted. To this method of separating the case plaintiff made no objection, other than his previous-request for the case to be submitted on a. general charge. In answer to the issues-submitted the jury found against the plaintiff, and judgment was rendered against him. He then sought by appeal to set aside the judgment on the ground that the trial-court had not submitted issues covering-both grounds of trespass. Because of the importance of that decision, we quote liberally from the opinion. After stating the-facts involved, Mr. Justice Williams, speaking for this court, said [100 Tex. 113, 94-S.W. 1134] :

“It is next objected to the charge that it excluded from the consideration of the jury the cause of action asserted for the second trespass, and that it did so cannot be denied. But the plaintiff has not put himself in a position to raise that objection on appeal. The act of 1897 (Laws 1897, [Sp.Sess.] p. 15, c. 7), amendatory of article 1331, Rev.St.1895, established a very important rule of practice to be observed by the appellate courts in reviewing causes submitted in the trial court upon-special issues. The statute gives to the parties the right to have all their issues, submitted to the jury, but the amendment provides: ‘But the failure to submit any-issue shall not be deemed a ground for reversal of the judgment upon appeal or writ of error, unless such submission has been-requested in writing by the party complaining of the judgment. Upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be-deemed as found by the court in such manner as to support the judgment, provided;, there be evidence to sustain such finding.’" The effect of this statute is to require that, an appellant or plaintiff in error, in order-to entitle himself to complain in the appellate court of the fact that the trial court, has not submitted to the jury any of the-issues, must have requested the submission in writing. The first provision in the-amendment speaks of the ‘failure to submit,’ and if it stood alone it might be susceptible of the interpretation that it applies only to omissions to submit, and not to positive withdrawals of or a refusal to submit issues, and might admit of the application of the old rule of practice which required special requests to supply omissions, but not to correct positive and affirmative errors. But the last provision requires the appellate court to treat an issue not submitted or requested as so found by the trial court as to sustain the judgment, if there be evidence to support such a finding. The consequence must necessarily be that when the trial court has expressly submitted some issues and excluded others, and neither party has put in writing a request for the submission of those excluded, they must be regarded in the appellate court as having acquiesced in such action and consented for the trial judge to determine from the evidence the issue not submitted. It is only by a written request that the party puts on record his dissent from the action of the coivrt and his insistence upon the right to have the jury, rather than the judge, decide the point at issue.” (Italics ours.)

Then came to this court Ormsby v. Rat-cliffe, supra. The opinion in that case was written for the purpose of clearing up the confusion that existed among the bench and bar relating to a certain rule of practice involved in Art. 2190. The court reviewed the legislative intent expressed in Arts. 2185, 2186, and 2190 of the Revised Civil Statutes. In that case it was contended, as here, that the trial court, under the terms of Art. 2190, could make certain findings upon certain issues not submitted to the jury, and enter judgment thereon. This court, in reply thereto, said: “It has been held in a number of well-considered cases, and we think correctly so, that the above-quoted provision of the statute does not apply to issues in the case which are independent causes of action in themselves or controlling and independent grounds of recovery, or independent grounds of defense, but that it applies only to such omitted issues as are in accord with, and supplemental or incidental to, and which support, the issues of fact which were submitted and found by the jury, and upon which the judgment is based. It will be observed that the statute provides that such an issue not submitted and not requested is deemed ‘as found by the court in such manner as to support the judgment,’ but it does not provide that such omitted issue or finding shall in itself form the basis for the judgment as an independent ground of recovery, but only in support of the judgment properly found and based on a recoverable ground. The language used clearly implies that such unsubmitted and unrequested issues could not form an independent and original basis for the judgment, but only shall be found in such manner as to support the judgment. That this is the proper construction and meaning of article 2190 is made clear also by the provisions of articles 2185, 2186, and the first part of article 2190 quoted above.”

And again it was said: “When the omitted issue constitutes a complete ground of recovery, or a complete defense, a failure to request a submission of that issue waives said ground of recovery or said ground of defense.”

It is well known that lawsuits frequently involve several grounds of recovery and defense. In order to cover such grounds, many issues must be submitted. Under the old law all such issues had to be submitted, and findings made thereon by the jury, before the court could enter a binding judgment. That this placed a heavy burden on the trial court, and caused the reversal of many judgments, is unquestioned. Article 2190 changed the old rule. It clearly appears that it was the intention of this article to relax the old rule, simplify the procedure thereunder, and give more authority to the trial court to make findings, under certain circumstances, in order to support the judgment entered.

The terms “ultimate issues,” “ultimate facts,” “essential facts,” “essential issues,” and “controlling issues” are frequently used synonymously. An ultimate fact is one essential to the right of action or matter of defense. If an ultimate fact is involved in a case, which is essential to the claim or defense, and is necessary to form the basis of a judgment, it is the duty of the court to submit such issue for determination by the jury. On the other hand, it is not necessary to submit a special issue where it does not call for the determination of some ultimate fact necessary to form the basis of a judgment, as where it relates to subordinate facts to be considered in determining ultimate facts, and necessarily embraced in the determination of the ultimate fact issue. In other words, only controlling issues should be submitted.

The fundamental principle underlying the construction of Art. 2190 is that in a case tried before a jury each litigant has the legal right to have the jury pass upon the ultimate or essential issues of fact raised by the pleadings and the evidence, and findings made by the jury thereon, sufficient to form the basis of a judgment. The power of the judge to make findings where none are submitted or requested ■ does not extend to ultimate or essential issues which are necessary to base a judgment thereon, or to independent grounds of recovery or defense. A party may waive an issue upon which he relies for recovery or defense, by failing to request its submission. We find no language in Art. 2190 which places the duty on the plaintiff to present defensive issues which would support a judgment for the defendant; and no duty rests on the defendant to present such issues as are essential to a recovery by the plaintiff. In such case, if the party has failed to request for submission such. issue, or issues, as will sustain his action or defense, he has not met the burden placed itpon him by law, and no waiver can be imputed to the other party for such failure. For instance, in the case of Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902, it was- held that the issue of limitation not having been submitted or requested, the trial court did not have the power, under the statute, to make such findings in order to sustain the judgment of the trial court. It was also held, in the case of Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1035, that the issue of the bank’s acceptance of Colbert’s service was an independent ground of recovery. It was held that such issue was the “very gist and basis of the right to recover on quantum meruit,” and that it was error not to submit such issue, and that the trial court did not have the power to make such finding and render judgment thereon.

We have carefully read and considered the many opinions that have been Written construing this article. It would serve no useful purpose to review them here. When we consider Art. 2190 in the light of its background, and the purpose for which it was enacted, we think the following general rules should govern the procedure thereunder:

1. The court shall submit all issues raised by the pleadings and the evidence.

2. Where the court fails to submit a separate or independent ground of recovery or defense, and there is no request to submit the issue or issues omitted, such issue or issues are waived, and no waiver can be imputed to the other party for such failure.

3. Where only one ground of recovery or defense, properly raised by the pleadings and the evidence, is submitted to the jury, the court shall submit the issues covering the essential and controlling facts of such ground, and findings shall be made thereon by the jury before the court can enter judgment sustaining such ground. A defective submission of the essential elements of an issue not wholly void, and not objected to, will be regarded as a sufficient submission of such issue. A fair and commendable practice would be for the trial court to submit substantially the essential component elements of an issue. As an illustration, we will take a negligence case. As a general rule, in such a case the four component elements of the ultimate issue must be shown: (1) that the defendant did an act, (2) that the act was an act of negligence, (3) that the act of negligence was the proximate cause of the plaintiff’s damage, and .(4) that the plaintiff was damaged. But if the trial court should fail to submit one or more of such component elements of an ultimate issue, such component element, or elements, not submitted and not requested to be submitted, are not waived, and the court may find the unsubmitted element, or elements, in such way as to support the judgment rendered by him, if there is evidence to support such finding.

4. Where the- court submits issues covering two or more grounds of recovery or defense, and the jury finds essential facts on one ground sufficient to base a judgment thereon, the court has the power to enter judgment in the cause, although it may appear that another or other grounds of recovery or defense have been submitted in part, or incompletely submitted, with the acquiescence of the parties, covering Separate and independent grounds of recovery or defense; and the jury having made answer thereto, the court may find on such issue, or issues, not submitted, and not re-questedj in such manner as to support the judgment, if there is evidence to sustain such finding!

In the absence of objections for the failure of the trial court to submit the issues above discussed, and no such issues having been requested, the trial court was authorized, undér the state of this record, to render judgment as was done.

It is contended that the judgment is excessive. The judgment of the Court of Civil Appeals upon this question is final, and this court is without jurisdiction to review same. Panama Refining Co. v. Crouch, 132 Tex. 608, 124 S.W.2d 988.

We have carefully considered the other questions raised, and same are hereby over'ruled.

The judgment of the Court of Civil Appeals is affirmed.


text:
    HEDGPETH v. GARTMAN et al.
    No. 7684.
    Supreme Court of Texas.
    Jan. 10, 1940.
    Allen & Allen, of Hamilton, for plaintiff in error.
    Arthur R. Eidson, of Hamilton, for defendants in error.
   PER CURIAM.

This case is before the Supreme Court on the following certificate from the Court of Civil Appeals for the Tenth District :

“The above cause is now pending before this court on motion for rehearing. The facts at issue are fully stated in our original opinion, which is hereby referred to and made a part of this certificate. Paragraphs 1 to 4, inclusive, of plaintiff in error’s petition are made a part hereof.

“Defendants in error, in their motion for rehearing, cite for the first time the case of Quinn v. Prudential Insurance Company, reported in 116 Iowa 522, 90 N.W. 349, which case involved a publication similar in language but made under materially different circumstances. A tentative memorandum opinion overruling defendants in error’s motion for rehearing has been prepared and a copy of the same is submitted herewith. No similar case has been cited or found in the opinions of the courts of this state and the proper disposition of defendants in error’s motion for rehearing is not clear to the several members of the court. In view of this fact, we deem it advisable to certi"fy the question of law involved to your Honorable Court for determination.
“We therefore respectfully inquire whether we were correct in reversing the judgment of the trial court sustaining defendants in error’s general demurrer and in remanding the cause to said court for a trial on the facts.
“It will be noted "that this case was brought to this court by writ of error, but the parties were designated as appellant and appellees, respectively, in all their briefs and they were so designated in the preparation of both the original opinion and the tentative opinion on the motion for rehearing.”

The above certificate is accompanied by a tentative opinion as required by our rules.

It will be noted that the certificate simply inquires “whether we were correct in reversing the judgment of the trial court sustaining defendants in error’s general demurrer and in remanding the cause to said court for a trial on the facts.”

The above question does not meet the requirements of Art. 1851, R.C.S.1925. It certifies the whole case to this Court. This is not permitted. State v. Robb & Rowley United, Inc., et al., 131 Tex. 188, 114 S.W.2d 225; City of Ft. Worth v. Burnett, 131 Tex. 34, 112 S.W.2d 702. Simply stated, this certificate comes under the condemnation of the above two authorities.

The certificate is dismissed.


author: GERMAN, Commissioner.

text:
    MAURER v. ARAB PETROLEUM CORPORATION.
    No. 2288—7438.
    Commission of Appeals of Texas, Section A.
    Jan. 10, 1940.
    C. C. Wurzbach, J. L. Camp, and Robert G. Harris, all of San Antonio, for plaintiff in error.
    J. Arthur Sandlin, of San Antonio, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of Wilson County by George Maurer, who will be called plaintiff, against Joe Maurer and Arab Petroleum Corporation, herein designated defendants. The purpose of the suit was to recover the balance due upon two notes and to foreclose a vendor’s lien securing said notes upon 430 acres of land. The essential facts are as follows:

On April 9, 1927, Jesus Leal and wife conveyed the 430 acres of land to Carlota M. de Gonzales, and the two notes in question, aggregating the sum of $3500, were executed in part payment of the purchase money. A vendor’s lien was expressly retained in said notes and in the deed of conveyance. Without reciting the history of said notes it is sufficient to say that they passed by regular assignments to the plaintiff George Maurer, and were timely renewed and extended.

From Gonzales the land in question passed to B. H. Drumheller, by general warranty deed of date July 25, 1932. Drum-heller assumed payment of the two notes mentioned. On the same date Drumheller conveyed the land by general warranty deed to R. F. Garland, and Garland assumed payment of the notes.

On January 1, 1934, Garland conveyed by general warranty deed one half of the oil and gas and oil and gas rights and other minerals and mineral rights in and under the 430 acres of land. This conveyance contained the following clause: “Together with the right to the Grantee, his heirs, executors, administrators and assigns, of ingress and egress and the right at all times to enter upon, explore, develop, operate and occupy said land for the production of oil, gas and other minerals or either of them, and for the storing, handling, transporting and marketing of the same, and all other rights and privileges necessary and incident to or convenient for the economical operation of said land for the production of said minerals, and with the right of removing at any time any and all property and improvements placed or erected on the premises by the Grantee or its assigns, including the right to pull and remove all casing.”

It was further recited that said land was then under an oil and gas lease executed to Magnolia Petroleum Company, the sale being made subject to said lease, but it was provided that if said lease should terminate or be forfeited the grantee should continue to own an interest of one half in all of said oil, gas and other minerals and mineral rights. There was no express assumption by the Arab Petroleum Corporation of any part of the vendor’s lien indebtedness, but the conveyance contained the provision hereinafter set out. This deed was filed for record May 4, 1934, at 8:30 o’clock a. m.

On January 2, 1934, R. F. Garland by general warranty deed conveyed the 430 acres of land to Sarah A. Price, and Mrs. Price assumed payment of the two notes mentioned. This deed was also filed for record May 4, 1934, at 8:30 o’clock a. m.

October 22, 1936, Sarah A. Price conveyed by general warranty deed the 430 acres of land to Joe Maurer, who assumed payment of the two notes in question. In this conveyance, however, Mrs. Price expressly retained to herself, her heirs and assigns, all that certain mineral' interest claimed by Arab Petroleum Corporation by virtue of the conveyance to it by deed filed of record May 4, 1934. This conveyance was likewise filed for record May 4, 1934, at 8:30 o’clock a. m.

Defendant Joe Maurer made no defense to plaintiff’s action. The defendant Arab Petroleum Corporation did not seriously contest plaintiff’s right to judgment for his debt, but set up a plea to the effect that if the lien be foreclosed then order of sale be issued directing that the land with the one half interest in the minerals owned by Maurer be first sold, and its one half interest in the minerals be sold only in the event that the proceeds from the first sale be insufficient to satisfy plaintiff’s judgment. No proof was offered in the trial court tending to show whether it would or would not be inequitable, so far as plaintiff was concerned, to follow the proceeding contended for by defendant Arab Petroleum Corporation. The judgment in the trial court was in favor of plaintiff for foreclosure upon the entire property. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment directing that the land should first be sold subject to the Arab Petroleum Corporation’s one half interest in the minerals, and then, in the event of insufficiency after such sale, the remaining one half interest in the minerals be sold. 115 S.W.2d 994, 996. Among other things the court said: “There appears in the record no reason why the doctrine of marshalling should not be applicable in this case, but every reason why it should, and we therefore hold that the trial court erred in rejecting it.”

We do not find it necessary to discuss some of the interesting questions presented in briefs of parties. In particular, it is unnecessary to discuss the question of whether or not application of the equitable principle, that when land subject to a lien is divided by its owner into parcels and sales to different persons at different times is made, the parcels are chargeable to pay the debt in the inverse order of their alienation, can or cannot be applied in case of sale of an undivided mineral interest, as in this case.

The equitable rule of inverse order of alienation was evolved for the benefit or protection of different vendees or mortgagees of separate parcels of property subject to lien, and is not applicable when the parties by their agreements have disclosed an intention that it shall not be observed. In Jones on Mortgages, 8th Ed., Vol. 3, Sec. 2089, several authorities are cited, including Moore v. Shurtleff, 128 Ill. 370, 21 N.E. 775, 776, from which we quote as follows: “The general rule of inverse order above stated does not apply where the parties by an agreement in their deed have charged a mortgage upon land in a different manner; ‘as where, by the terms of sale of a part of the premises, the mortgage is- made a common charge, or that part conveyed is subjected to a proportionate part of the incumbrance. In such cases, if there be no specific agreement as to the proportion which each part is to bear, contribution must be made according to the relative value of each part.’ 2 Jones, Mortg. § 1625; Briscoe v. Power, 47 Ill. 447.”

In the mineral conveyance by Garland to Arab Petroleum Corporation there is the following provision: “Grantor further agrees that Grantee, its heirs, executors, administrators and assigns shall have the right at 'any time to redeem for Grantor or its heirs, executors, administrators and assigns by payment, any deed of trust, taxes, judgments or other liens on the above described land, in the event of default of payment of Grantors, and be sub-rogated to the rights of the holder or holders thereof.”

We think it manifest that the parties by this clause intended to recognize that the prior vendor’s lien was to remain “a common charg-e upon the whole premises,” and the grantee was furnished thereby a remedy for protection of its interest in the event of default on the part of the grantor. In our opinion it clearly appears that the mineral interest, as between the parties, was not to be regarded as only secondarily liable, and in the absence of proof to the contrary, we conclude that under the situation thus presented the rule which defendant Arab Petroleum Corporation attempts to invoke is not applicable.

The judgment of the Court of Civil Appeals is reversed, and the. judgment of the district court is affirmed.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    FARLEY et al. v. DORSEY et al.
    No. 2279-7417.
    Commission of Appeals of Texas, Section A.
    Jan. 10, 1940.
    James & Conner, E. E. Sanders, and George M. Conner, all of Fort Worth, and W. Edward Lee, of Longview, for plaintiffs in error.
    Tom L. Beauchamp and W. M. Richardson, both of Austin, for defendants in error.
   HARVEY, Commissioner.

In the above case, which is pending in the Court of Civil Appeals at Texarkana, said court has submitted to this Court a certificate containing two certified questions. The facts are set out in said certificate as follows:

“In 1922 L. L. Jones, brother of Lillie Irene Jones, a minor, was by the probate court of Rusk County appointed and he qualified as guardian of the estate of said minor. The ward’s estate then consisted of $1,000, being the proceeds of a life insurance policy to which she had become entitled upon the. death of. her father, J. A. Jones. September 29, 1923, the money was duly invested in fifty acres of land, a part of the F. Cardova League in Rusk County. On March 20, 1931, the guardian, pursuant to the orders of the Probate Court, executed an oil and gas lease on the land to L. B. Dean, receiving therefor $1,000 cash and retaining in the ward the usual ⅛ royalty interest; and on April 24, 1931, conveyed ¼ of said royalty interest to W. N. Hooper for $1875; and on the same date conveyed another ½ of the royalty interest to Frank M. Farley for $2125; and on May 2, 1931, conveyed another ½ of the royalty to Butler-Calhoun Company for $2125. On December 24, 1931, the ward married Ralph G. Dorsey. January 12, 1932, the final account of L. L. Jones as such guardian was by order of said court duly approved and the estate was delivered to Mrs. Lillie Irene Jones Dorsey, the former ward. April 15, 1933, Mrs. Lillie Irene Jones Dorsey, joined pro forma by her husband, Ralph G. Dorsey, filed this suit in the County Court of Rusk County, in the nature of a bill of review as provided by Article 4328, R.S.1925, seeking to vacate and have set aside the orders and judgments of the probate court- entered in such guardianship proceedings, viz.: (1) The order authorizing execution of the oil and gas lease to L. B. Dean; (2) the orders authorizing and confirming sale of the ½ royalty interest to W. N. Hooper; (3) the orders authorizing and confirming sale of the ¾ royalty interest to Frank M. Farley; (4) the orders authorizing and confirming sale of the ⅛ royalty interest to Butler-Calhoun Company. All parties to be affected by cancellation of said orders were made defendants, namely, the former guardian, the sureties on his several bonds, the lessee, the purchasers of said mineral interests and their assignees. June 2, 1934, the county court on motion of the plaintiff dismissed the bill of review insofar as it complained of the proceedings relating to sale of the oil and gas lease to L. B. Dean and as to the conveyance of the ½ royalty interest to -W. N. Hooper. Trial on the merits in the county court resulted in judgment for the remaining defendants. From this judgment plaintiff appealed to the District Court of Rusk County. Trial in the district court, without a jury, resulted in judgment for plaintiff, vacating and setting • aside the orders of the probate court authorizing and confirming the sale of the ¼ royalty interest to Frank M. Farley. A like judgment was entered vacating the orders relating to the sale of the ½ royalty interest to the Butler-Calhoun Company. The defendants Frank M. Farley and his assignees, Federal Royalties Company, Inc., and the Argo Royalty Company, have perfected their appeal to this court. Butler-Calhoun Company did not appeal from the judgment rendered against them.”

The first certified question set out in the certificate reads as follows: “After conveyance has been consummated pursuant to the orders attacked, does the county court have jurisdiction to entertain a bill of review as provided by R.S.1925, Article 4328, seeking to vacate the orders of the probate court granting and confirming the guardian’s sale of land?”

It may be conceded that where an order is made by the county court, and entered on the court records, directing a guardian to consummate a sale of land belonging to his ward, said court has jurisdiction to revise or entirely vacate such order so long as same remains unexecuted. But when the sale is effected by the execution of a deed to the purchaser in conformity to said order, the order becomes completely executed and is no longer subject to the-jurisdiction of the county court. This is so for the reason that in such case the order acquires the character of a muniment of title to the land involved, and, regardless of whether the order be void or merely voidable, the power to declare it void necessarily involves the exercise of power to try title to land. The power to try title to land is confided by article V, section 8, of our Constitution, Vernon’s-Ann.St., in the district court in the following words: “The District Court shall have * * * jurisdiction * * * of all suits for trial of title to land * * The power to try title to land is comprehended by the provision of section 16 of the same article of the Constitution which provides that the county court “shall not have jurisdiction of suits for the recovery of land.” The validity of a deed executed by a guardian, which purports the conveyance of land belonging to his ward, depends upon the validity of the order of the county court confirming the sale and directing him to make the conveyance. Whatever force the deed might have as a conveyance, is derived from the order of the county court in this respect. It would be anomalous to say that the county court, or for that matter any other court, which has no jurisdiction to try title to land, could annul or set aside any of its own executed orders upon which the validity of a deed depends. Looking through the matter of form to the substance, it is readily seen that this would be the equivalent of annulling the deed. The power to do this lies exclusively in the district court. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932. The first certified question is answered in the negative.

The second certified question reads as follows: “Will failure alone of the guardian’s application for order of sale of land to be accompanied by an exhibit under oath showing fully the condition of the estate as required by R.S.192S, Art. 4196, warrant vacation of the sale, otherwise regular and resulting in no injury to the ward?”

Consideration of this question involves the following relevant provisions of Articles 4195, 4196, 4201 and 4216 of the Revised Statutes of 1925:

Article 4195. “When the income of the ward’s estate, and the personal property thereof, and the proceeds of previous sales, are insufficient for the education and maintenance of the ward * * * the guard-ia * * * may, by written application to the court in which such guardianship is pending, ask for an order for a sufficient amount of real estate to be sold to make up the deficiency * *

Article 4196. “The guardian shall apply for such order as is provided in the preceding article, whenever it appears that a necessity exists therefor, and set forth fully in his application with an exhibit, under oath, showing fully the condition of the estate.”

Article 4201. “An order for the sale of real estate shall state: , * * * 3. The necessity and purpose of such sale. * * 5. It shall require the sale to be made and report thereof to be returned to the court in accordance with law.”

Article 4216. “At any time after the expiration of five days from the filing of a report of sale, the court shall inquire into the manner in which such sale was made, and hear evidence in support of or against such report, and if satisfied that such sale was fairly made and in conformity with law * * * the court shall cause to be entered a decree confirming such sale, afld order the report of sale to be recorded by the clerk, and the proper conveyance of the property sold to be made by the guardian to the purchaser, upon compliance by such purchaser with the terms of sale.”

In confirming a sale made by the guardian and ordering him to make proper conveyance to the purchaser of the property sold, upon compliance by the latter with the terms of sale, as provided in article 4216, the county court is exercising general jurisdiction, and, unless the provisions of article 4196 are mandatory, the omission of the exhibit there prescribed does not affect the validity of the order confirming the sale and directing the guardian to make proper conveyance of the property sold. It is settled that the mere fact that the application does not show the necessity for the sale, as prescribed in article 4196, does not invalidate the sale. Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177, 93 Am.St.Rep. 814; Weems v. Masterson, 80 Tex. 45, 15 S.W. 590. Manifestly the provision for an exhibit showing the condition of the estate is not meant to limit the exercise of the jurisdiction of the court to determine the necessity for the sale and to order the sale made, but its design is merely to furnish aid to. the court in exercising that jurisdiction. For this reason, the omission of said exhibit from the application does not invalidate the action of the court in ordering the sale to be made or in confirming the sale and directing the guardian to make proper conveyance to the purchaser of the property sold. This conclusion finds substantial support not only in the decisions cited above, but also in decisions of this court in reference to a provision of essentially the same character contained in article 3566, in which article the subject matter of the application of an administrator for authority to sell real estate belonging to the estate of the decedent is regulated. Jackson v. Houston, 84 Tex. 622, 19 S.W. 799; Lyne v. Sanford, 82 Tex. 58, 19 S.W. 847, 27 Am.St.Rep. 852; Kleinecke v. Woodward, 42 Tex. 311; Daimwood v. Driscoll, Tex.Civ.App., 151 S.W. 621, writ refused.

The second certified question is answered in the negative.

Opinion adopted by the Supreme Court.


author: HICKMAN, Commissioner.

text:
    BALDWIN v. BALDWIN et al.
    No. 2284—7429.
    Commission of Appeals of Texas, Section A.
    Jan. 10, 1940.
    Ewing Werlein, of Houston, for appellant.
    R. H. Kelley, Harry R. Jones, and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellee F. T. Baldwin.

      Ernest A. Knipp, of Houston, for ap-pellees J. C. Baldwin and others.
   HICKMAN, Commissioner.

This case is before us on the following certificate:

“The questions of law hereinafter certified arise out of the record in this cause— pending here undisposed of on an appeal from the district court of Harris County— which involve, among other issues, a construction of the will of the late Jacob C. Baldwin, a lawyer of Houston.
“As its terms — set out infra — disclose, the will bore the date of March 4 of 1921, whereas the testator died on November 13 of 1921, the will having been filed on November 26 thereafter for and subsequently admitted to probate in the county court of Harris County, Texas, on January 3 of 1922; the two independent executors therein named, F. T. Baldwin, and Hattie Baldwin, the testator’s surviving wife, duly qualified as such independent executors on January 6 of 1922, and for fifteen years continuously thereafter acted together in such capacities, each and both of them during that time having acted under the will as if it did dispose of the estate it actually dealt with — that is, all property standing in his own name, which, undis-putedly, was the community — property of the testator and his wife, Hattie Baldwin —as a whole, including such wife’s community-interest therein; throughout that period they likewise so managed and administered this estate without differences or controversies, until the older of the grandsons named in the will attained his majority, whereupon this litigation — calling, in part, for a construction of the will in the respect herein inquired about — arose.

“Upon the facts stated we ask:

“(1) Considered from its four corners, did the will manifest such a definite purpose and intention upon the testator’s part to dispose of such estate as a whole, including his wife’s community-interest therein, as required an election upon her part as to whether she would take under it, or would assert her community — rights aliunde ?
“(2) Did the wife’s stated qualification and administration for the 15-year period under the terms of the will estop her from thereafter claiming her community-interest in the property, notwithstanding it ?
* * * * * *

The will is long and will not be set out in full. In the first paragraph it names the testator’s wife, Hattie Baldwin, and his nephew, F. T. Baldwin, independent executrix and executor, respectively, of his will and provides that in the event of the death of either of them Myrta Lynch Baldwin shall act in her or his place and stead. Then follow these provisions which we deem to be material to the questions under consideration:

“2. All property owned by either myself or wife is our community property, except the property inherited by her from her deceased father and mother, which is located in Hill and Fannin Counties, Texas. I now declare all property, the title to which stands in my name, as being community property. With my consent and approval, considerable property has been paid for out of community funds and conveyed to my wife during our married life as her separate estate and she has been permitted to have complete management and control of it. The record title to this property now stands in her name. The deeds recite that it is her separate property and it was so intended. I wish all such property to be treated as her separate property, managed and controlled by her alone.
“3. All property owned by me at the time of my death other than that declared to be my wife’s separate property shall be managed, controlled and disposed of with the joint approval and conveyance of my executors.
“My wife is equally interested in my estate. We are now receiving a royalty from some of our oil lands. These royalties are liable to fluctuate, but will no doubt last for years. I want her to enjoy the same by using as much as one-half of the same, if she so desires, or if it is needed, for her personal comfort. By qualifying as executrix of this will it shall be considered and held as a full approval upon her part of all the specific and special legacies herein made and provided for, as well as all the provisions hereof and all such shall be binding on her and her interest in said estate.
“4 *****
‡ * * * *
“The houses and lots at 711 Hamilton Street and 1909 Rusk Avenue, shall never be sold by either my executors or legatees. These properties shall be under the control and managment of my said executors until my youngest grandson arrives at the age of twenty-one years, when they shall be delivered to my said legatees to be controlled and managed by them, without the power ■of sale.
“6. Subject to the limitations placed upon the same I give all my property, of ■every kind, as well as all choses in action, to my two grandchildren, J. C. and Robert Basil Baldwin, share and share alike.
“7. It is my desire, and I so direct, that my daughter-in-law, Myrta Lynch Baldwin, shall be maintained and supported out of my estate and shall have the right to live with my wife and grandchildren in our home, free of any charge, until she shall marry, or for her natural life in the event she fails to marry.
“The house and furniture located on the present homestead of myself and wife shall be kept insured to the amount of insurance now upon the same, and in the event the improvements or any part thereof shall be destroyed by fire, or otherwise, similar or like improvements shall be placed upon the property and it kept as the home of my wife, daughter-in-law and grandchildren, each being considered as an individual member of the same family.
“In the event I should, or my executors should, at any time erect upon said property an apartment house or other improvements, so that it or any part thereof, shall become revenue bearing then after the payment of taxes, the revenue, if any, derived from such property shall be used for the support, maintenance and pleasure of my family aforesaid.
“In the event my wife should die prior to the death of Myrta Lynch Baldwin, and the said Myrta Lynch Baldwin has never remarried, she shall have the free use and control of the home place, with all revenues derived therefrom. She shall have no power to sell the same, nor to transfer or assign the rents or revenues, and her right to the same shall be forfeited upon her remarriage and it shall then become the property of my grandchildren.
■ “8. My houses and lots at 711 Hamilton Street and 1909 Rusk Avenue, are adjoining property, and if owned by me at the time of my death and it remains in its present state, I give to my beloved daughter-in-law for her natural life. She to have all rents and revenues therefrom, after the payment of all taxes on the same, with which to support herself. At her death, I give it to her two. children, J. C. and Robert Basil Baldwin.
“9. If prior to my death my royalties from my oil lands are sufficient to justify my doing so, without incurring debt or inconvenience to myself, I intend to remove the house now located on my lot at 711 Hamilton Street and erect an apartment house on said lot, and some latter day move the house now located at 1909 Rusk Avenue and make an ell to the apartment building so as to cover these two lots with this apartment building, fronting both on Rusk Avenue and Hamilton Street. If this contemplated apartment is erected by me during my life time, it is my desire that this property shall never be disposed of by my executors or legatees. If the improvements contemplated are never placed upon the property by myself, then in that event, as soon as my executors shall accumulate sufficient money from my royalties, with which to build such a building, it is my desire that they erect upon these two lots the building contemplated. These lots, together with the improvements placed thereon, either by myself or executors, shall form and constitute a permanent investment for the maintenance and support of my daughter-in-law and grandchildren. In the event the contemplated improvements are placed on this property, either by myself or executors, then after the completion of said improvements and the same are fully paid for, one-third (⅛) of said rents and revenues shall be delivered to my daughter-in-law, for her natural life and the remaining two-thirds (⅜) equally divided between my grandchildren to be delivered to them after they arrive at the age of twenty-one years.
“The intention of this clause is to create a life estate in my daughter-in-law and in my grandchildren respectively, sufficient to support and maintain them, which shall never be sold by them, or either of them, and shall never be liable for any debts created by them, or either of them.
⅝ # ⅜ # ⅜ *
“14. I give to my nephew, F. T. Baldwin, all my library and office furniture of every kind and character, except iron safe and filing cases.
* * * * * * »

The general practice is to predicate our answers to certified questions solely on the facts contained in the certificate. Peavy-Moore Lumber Co. v. First National Bank, Tex.Com.App., 128 S.W.2d 1158. However, in cases of dissent the practice has not been followed strictly. Pohle v. Robertson, 102 Tex. 274, 115 S.W. 1166. The certificate in this case discloses an unusual situation. It recites that the Chief Justice was physically unable to participate, and the other two Justices could not agree. Because of that extraordinary situation the court permitted this certificate to be filed without being accompanied by a tentative opinion. For the same reason, even though the certificate does not contain sufficient recitals to enable us to answer the certified questions, we shall supplement those recitals by referring to the record and base our opinion on the certificate as supplemented.

If the will put Mrs. Baldwin to an election, it must appear therefrom that the testator unequivocally attempted to dispose of her community interest in the estate; the presumption being that he did not attempt to do so. Avery v. Johnson, 108 Tex. 294, 192 S.W. 542; Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Hocker v. Piper, Tex.Civ.App., 2 S.W.2d 997, writ refused; 44 Tex.Jur. 867.

It must further appear that the will conferred a benefit upon her; that is, that it gave her something in lieu of what was taken away, something to which she would not have been entitled but for the will. Dunn v. Vinyard, Tex.Com.App., 251 S.W. 1043; Dakan v. Dakan, supra; Bumpass v. Johnson, Tex.Com.App., 290 S.W. 739.

In determining whether a surviving spouse receives a benefit under a will the court does not measure the relative values of the things received and those parted with. As stated in Dunn v. Vinyard, supra [251 S.W. 1046], “To uphold an election the compensating thing need not be of value equal to that taken away. Smith v. Butler, 85 Tex. 126, 130, 19 S.W. 1083. It may be, and often is, true that the party making the election is prompted to do so by considerations other than the value of the estate or property actually received under the will.”

Considering the will in the instant case in the light of these principles, we experience no difficulty in arriving at the conclusion that the testator attempted unequivocally to dispose of the entire community estate. Clearly, we think, he undertook, by the language used in the last sentence in paragraph 3, to put his wife to an election. In paragraphs 5 and 8 he disposed of the real estate there described, and not merely a one-half interest therein. In paragraph 7 he undertook to deal with the homestead as a whole. In paragraph 4 he dealt with the whole of the personal property there referred to. All of the other portions of the will clearly evidence that the testator used the term “my estate” as including all of the. community estate standing in his name.

The next question is, Did the will confer a benefit upon Mrs. Baldwin ? That is the most difficult question in the case. In our decision of the question next above discussed, we were guided by a rule which requires that all ambiguities be resolved against the theory that the testator made an attempt to dispose of the whole of the estate. The presumption being that he made no such attempt, ambiguities should be resolved in favor of such presumption. But in construing the will to determine what right or property was bequeathed or devised by a particular provision, a different rule obtains. That rule is that, if there be an ambiguity in that regard, the practical construction placed thereon by all interested parties in acting under it through a period of years, while not controlling, will be given much weight by the court in arriving at the proper construction to be placed on the will. 44 Tex.Jur. 743; 69 C.J. 125; Thompson on Construction of Wills, p. 15; Schouler on Wills, 6th Ed., 946. From this last authority we quote: “The practical interpretation placed on a will by all parties interested for a long period of time will not be disturbed except for most imperative reasons.” Annotations of the question appear in 67 A.L.R. 1272 and 94 A.L.R. 245. That rule is applicable in the instant case. This may be illustrated by considering the provision in paragraph 3 of the will to the effect that Mrs. Baldwin might enjoy as much as one-half of the royalties from oil lands, if she so desired, or if that amount be needed for her personal comfort. She and the executor, F. T. Baldwin, construed the will as authorizing her to receive one-half of .the total amount of these royalites, free of all expenses. She elected thus to receive them and freely admits the collection by her of such royalties aggregating $108,368.15. But for the will, a portion of this income would have been used in payment of community debts; but, because of the will and the construction placed thereon by the parties, it was not so used. Clearly the language is susceptible of the construction placed upon it by Mrs. Baldwin and the executor. We, therefore, adopt that construction and hold that the will conferred a benefit upon her.

Further, in her pleadings in this case and in her brief filed herein in the Court of Civil Appeals, Mrs. Baldwin has construed the provision of the will under review as granting to her the right to use one-half of the royalties, freed from any liability for payment of community debts. She sought the recovery of a substantial sum in the trial court upon pleadings from which we quote as follows: “* * * This defendant avers that the testator in his will in giving her the right to use one-half of such royalty if she desired to do so and enjoy the same, did thereby effectively remove such one-half of the royalty from any liability for payment of the community debts, and the expenses of operating the estate, so that all of the community debts and expenses of operating the estate are chargeable against .the total receipts of the estate less the one-half of the royalties set apart to the defendant.”

From her fourth proposition in her brief in the Court of Civil Appeals we quote: “The court should not have held that Mrs. Baldwin was entitled to recover only one thousand four hundred ninety-four ($1,-494.00) dollars plus certain sums expended since January 1, 1934, in satisfaction of the debts of the estate because the testator’s precatory language giving her the right to use one-half of the oil royalties removed the same from the expenses of the estate without forcing her to an election, and because in addition to the amounts decreed Mrs. Baldwin, she was entitled to recover on her cross action approximately forty-five thousand ($45,000.00) dollars of the sixty-five thousand four hundred twenty-nine and 17/100 ($65,429.17) dollars on deposit in Houston banks and one-half of the sum of forty-five hundred ($4500.00) dollars due from the Gulf Company.” (Italics ours.)

Of course, she is bound by this pleading and proposition. This she freely admits. Her position seems to be that, while the will should be given that construction, still she was not thereby put to an election. With this we cannot agree. The testator clearly attempted to dispose of all of the community estate. The practical construction placed upon this ambiguous provision of his will clearly confers upon Mrs. Baldwin a benefit which she accepted and which she would not have enjoyed but for the will. Those two factors concurring, she was put to an election.

Owing to the somewhat restricted nature of the questions certified, we do not answer them yes or no, but the above reflects our views from a consideration of the record as a whole.

■ Opinion adopted by the Supreme Court.