author: FOLLEY, Justice.

text:
    FISK TIRE CO., Inc., v. FIRESTONE TIRE & RUBBER CO.
    No. 5205.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1940.
    E. D. Slough, of Amarillo, and Frank L. King, of Alexandria, Minn., for appellant.
    Stone & Stone, of Amarillo, for appellee.
   FOLLEY, Justice.

This is the second appeal of this case. The opinion of this court in the former appeal will be found in 87 S.W.2d 794. A writ of error was granted by the Supreme Court, and the opinion of the Commission of Appeals reversing this court and the trial court will be found in 131 Tex. 158, 113 S.W.2d 175, 177. We refer to both of these opinions for a statement of such facts as we deem unnecessary to restate here.

In the former appeal in a trial before a jury judgment was rendered for the Fisk Tiré Company against the Firestone Tire & Rubber Company. In the instant appeal the trial was before the court without a jury. Judgment was entered for the Firestone company denying the Fisk company a recovery. We have a statement of facts in the present record but there are no findings of fact or conclusions of law from the trial court.

In 1931 the Safety First Bus Company of Amarillo, Texas, had a written contract with the appellant, the Fisk Tire Company, wherein the appellant furnished the use of its tires to the bus company upon a mileage basis. The contract provided that the bus company upon the termination of the agreement, unless the contract was renewed. should purchase all tires then in service at the Fisk company’s current service station price. The term of this contract was from December 31, 1930, to December 31, 1931. Some time in May or June, 1931, the ap-pellee, Firestone Tire & Rubber Company, began negotiations with the bus company to secure a similar contract to furnish its tires to the bus company upon a similar mileage basis. These negotiations extended over a period of several weeks. They were conducted upon the part of the bus company by its president and general manager, A. E. Gosnell, and upon the part of the ap-pellee by Louis H. Smith, local dealer in Firestone tires in Amarillo, in cooperation with W. B. McGinty of Oklahoma City, Oklahoma, district manager of the Firestone company. The negotiations resulted in a written contract between the bus company and the Firestone company of the date of Jury 10, 1931.

It will be noted from the opinions in the former appeal, the record therein revealed, and jury findings were made, that while the negotiations were pending and before the execution of the written contract with Firestone, McGinty orally agreed with Gosnell that the Firestone company would assume the obligation of the bus company to the Fisk company with respect to the purchase of Fisk tires in possession of the bus company and that this agreement induced Gosnell to enter into the written contract with the Firestone company. It was upon such record that this court affirmed the former judgment allowing the Fisk company a recovery. The Commission of Appeals reversed the trial court and this court chiefly upon the ground there was no competent evidence to establish the oral agreement between the bus company and Firestone and held that the parol testimony was at variance with the provisions of the written contract. The Commission of Appeals further indicated in its opinion that as the case then stood there was no evidence to show that at the time the written contract was made between the bus company and Firestone, “the Fisk Company had by acceptance under the prior oral agreement between said contracting parties, acquired an independent right of its own”. It was further held that the oral agreement was subject to rescission or modification and that an “acceptance subsequent to the written contract did not put the Fisk Company in any better position in relation to the rule which forbids the varying of the terms of the written instrument by parol testimony, than is occupied by the parties to the written instrument.”

In the record now before us it is apparent the Fisk company endeavored to escape the binding effect of the above holdings of the Commission of Appeals. In this connection the Fisk company alleged, among other things, that W. B. McGinty, the duly authorized agent of the Firestone company, promised the bus company that if it, the bus company, would enter into a written mileage contract with Firestone, the latter company would assume the obligation of the bus company to purchase the Fisk tires at the termination of the contract with the Fisk company; that in consideration for such oral promise the bus company executed the written contract; that the Fisk company received notice of said parol agreement and accepted as beneficiary thereunder; that a joint inventory and appraisal of the Fisk tires was completed on October S, 1931; that said inventory and appraisal was made by J. C. Chancellor representing the Fisk company, Jess Mallow, representing the Firestone company, and A. E. Gosnell, representing the bus company, all of such appraisers being duly authorized agents of their respective companies ; that following the completion of the inventory the Fisk company cancelled its contract with the bus company and the Fisk tires then in use were delivered to the Firestone company; and that the Firestone company took possession of these tires valued at $2,406.59 and appropriated them to its own use.

If it might be said that the above allegations were sufficient to avoid the binding effect of the holdings, of the Commission of Appeals in the former appeal, we think it is a controverted issue of fact as to whether or not the testimony established in the Fisk company an independent right of its own by virtue of the alleged oral agreement. In undertaking to discharge this burden thus placed upon it the Fisk company relied chiefly upon the testimony of the' witness A. E. Gosnell, who, by reason of his connection with the bus company, was an interested witness. He testified that at the beginning of the negotiations he told McGinty and Smith the Fisk tires on the buses would have to be disposed of before the contract with Firestone was signed; that before the written contract was prepared McGinty, in company with Smith, agreed that Firestone would purchase the unused mileage in the Fisk tires hut that it would be necessary for an engineer from his company and one from the Fisk company to meet with Gosnell and “arrive at an inventory price to be paid for these tires”; that ordinarily the inventory price or value of the used or unused tires was determined by an estimate agreed upon by the parties involved; that he had testified by deposition in the former trial that he signed the contract between August IS, 1931 and September IS, 1931, but upon checking his records he learned he was mistaken about the date and that it was October 8, 1931; that the engineers of the respective tire companies met in Amarillo October 6, 1931, and began the inventory which was completed October 8, 1931; that on the latter date the'witness signed the written contract bearing the date of July 10, 1931; that at the time he executed the contract it had not been executed by the Firestone company; that he was informed that it would be necessary for the instrument to be sent to Akron, Ohio for the signature of the officials of the Firestone company;, and that by mutual agreement- between him and the Fisk company the contract with the latter company was terminated at midnight October 8, 1931.

The above testimony of Gosnell was sharply controverted. The contract with Firestone contained no provision for the purchase of the Fisk tires, but on the contrary contained the provision indicated in the opinion of the Commission of Appeals to the effect that the Fisk tires on the buses should, at the option of the bus company, be serviced by Firestone until worn out. Louis H. Smith, local Firestone dealer, by his own testimony and that of Gos-nell, was present during the negotiations between McGinty and Gosnell. Smith testified that he had no connection with Firestone except as a dealer in such company’s tires; that his only interest in the matter was that if Firestone received the contract his service station would be called upon to service the Firestone tires for a remuneration; that during the negotiations for the company he mentioned to Gosnell no less than two or three different times that he (Smith) had previously been with the Firestone company and knew how these mileage contracts should be handled; that all contracts had to be signed at Akron, Ohio; that no one had any authority to make them except the Firestone Tire & Rubber Company at Akron; that McGinty did not say anything to Gosnell about his authority to make a contract for Firestone; that he heard McGinty say to Gosnell that any agreement they made would have to be submitted to the Firestone company at Akron; that nothing was said about the unused mileage of the Fisk tires during the negotiations; that the written contract was presented to Gosnell for his signature some time in August, 1931; that such contract was presented to Gosnell for his signature only one time; that Gosnell read the contract; that Gosnell signed the contract when first presented; that Gosnell made no objections to the contract because it contained no provision for Firestone to take over the unused mileage of the Fisk tires; that shortly after the contract was signed the Fisk tires were taken off of the buses of the bus company at the witness’s service station in Amarillo and were replaced by Firestone tires; that the Fisk tires which were removed were delivered to the bus company; and that he had nothing further to do with the Fisk tires after they were returned to the bus company.

In addition to the above testimony from the witness Smith, there -were other circumstances in the record tending to support the theory of the appellee that no oral agreement was made, and, if made, that the same was not accepted by the Fisk company prior to the execution of the written contract with Firestone nor at any other time, but we deem it unnecessary to 'discuss the evidence further for the reason that, in our opinion, Smith’s testimony was sufficient to present an issue of fact relative to the existence and acceptance of the oral agreement, which controverted issue has been resolved against the appellant by the judgment of the trial court. Under such circumstances the judgment herein must be affirmed. Boyd et al. v. Keystone Driller Co., Tex.Civ.App., 6 S.W.2d 221, writ of error refused; Johnson et al. v. Campbell et ux., Tex.Civ.App., 107 S.W.2d 1111; 3 Tex.Jur. 507, para. 355.

The judgment is affirmed.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    OIL COUNTRY PIPE & SUPPLY CO. v. CARTER.
    No. 10684.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 18, 1940.

      T. Gilbert Sharpe, Wm. B. Blanchet, and Nicholas Cosgrove, all of San Antonio, for appellant.
    Aldredge, Shults & Madden, of Dallas, and Lester Whipple and Tabor Stone, both of San Antonio, for appellee.
   SMITH, Chief Justice.

This action in trover and conversion was brought by appellee, L. L. Carter, against appellant, Oil Country Pipe and Supply Company, and Philtop Oil & Gas Company, to recover certain oil well supplies, or, • in the alternative, for the reasonable market value thereof, which was alleged to be $1,000.

Appellee alleged that on March 4, 1938, he found on Philtop Company’s premises certain articles, specifically described in quantities and values, which were the property of appellee, and which Philtop Company refused to surrender to him on demand. Appellee further alleged that on March 14, 1938, he found the identical arti--cles on the premises of Oil Country Company, and alleged facts constituting conversion of the properties by the latter company.

The trial was to a jury, who returned the following verdict.:

“Question No. 1: Do you find from a preponderance of the evidence that any of the drill pipe, pins and boxes found upon the leasehold of the Philtop Oil & Gas Company on or about the 4th day of March, 1938, was the property of L. L. Carter ?

“We, the jury, answer Yes.

“Question No. 2: (a) What amount of plaintiff’s drill pipe, if any, do you find from a preponderance of the evidence was on said lease on or about March 4, 1938?

“We, the jury, answer 1400 feet.

“(b) What number of tool joints, if any, consisting of pins and boxes and belonging to plaintiff, do you find from a preponderance of the evidence was on said lease on or about March 4th, 1938.

“We, the jury, answer 45.

“Question No. 3: (a) Do you find from a preponderance of the evidence that on or about the 4th day of March, 1938, the plaintiff, L. L. Carter, made demand upon W. E. Allaum, as President of the defendant, Philtop Oil & Gas Company, for the drill pipe and boxes, if any, located on the Cassen Lease?

“We, the jury, answer Yes.

“(b) Do you find from a preponderance of the evidence that W. E. Allaum, as President of Philtop Oil & Gas Company, requested, on or about the 4th day of March, 1938, the plaintiff, L. L. Carter, to let the defendant Philtop Oil & Gas Company have the use of said pipe for the purpose of completing the well upon said leasehold?

“We, the jury, answer Yes.

“(c) Do you find from a preponderance of the fevidence that on or about the 4th day of March, 1938, W. E. Allaum, as President of Philtop Oil & Gas Company, advised plaintiff that said company would guarantee an$l promise to take good care of- said personal property and its safe return to plaintiff when plaintiff called for the same at the well?

“We, the jury, answer Yes.

“Question No. 4: What do you find from a preponderance of the evidence was the reasonable market value, per foot, of the drill pipe (without boxes and pins) inquired about in subdivision ‘a’ of question No. 2, on or about the dates involved in this suit?

“We, the jury, answer 5(⅛

“Question No. 5: What amount do you find, if any, from a preponderance of the evidence, was the reasonable market value of the tool joints (boxes and pins) inquired about in subdivision ‘b’ of question No. 2, on or about the dates involved in this suit?

“We, the jury, answer $6.75,” (per tool joint).

No other issue was submitted or requested by either party.

Now, it so transpired that while the jury found for appellee upon every allegation against the Philtop Company, the trial judge, on appropriate motion, rendered judgment in favor of that company non obstante veredicto. On the other hand, while the issue of conversion alleged by appellee against Oil Country Company was not submitted to the jury at all, the trial judge nevertheless granted appellee’s motion for judgment purportedly on the verdict, and rendered judgment against that company upon every material issue raised in appellee’s pleadings against it.

Appellant contends in its first proposition that the verdict does not support the judgment because there is no finding that it converted the property, and that plaintiff had the burden of eliciting such finding. That specific complaint was not made in the trial court, and is presented for the first time in appellant’s brief, upon the premise that the error is apparent of record and fundamental.

Appellee alleged that the property converted by the respective defendants below was identical in quantity, condition and values; that Philtop Company first got wrongful possession of it, and appellant thereafter got wrongful possession of it and refused to surrender it to appellee upon his demand. In rendering judgment against appellant the trial court necessarily assumed as a matter of fact that appellant did take wrongful possession of and refuse to surrender the property found by the jury to have been first converted by Philtop Company. Appellant did not complain, in the trial court, of this assumption.

It follows, then, that the findings of the jury as to quantity and values of the converted property are necessarily applicable to appellant, who does not efficiently question the identity of the property, although it does raise other questions under propositions hereafter to be noticed.

In a case tried to a jury, it is not necessary to submit issues which are conclusively established by the testimony; nor, in order to affirm a judgment here, is it necessary that a jury below shall have found upon every issue necessary to support such judgment. Certain findings may be made by the jury, others may be found by the trial court in support of the judgment, and still others may be conclusively established as a matter of law by evidence and need not be submitted tó a jury. Wichita Falls & Oklahoma Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

The judgment in this case is not based entirely on the findings of the jury, since no issue was submitted to them which established that appellant did convert the property. However, this act of conversion may have been, and appellee contends and presents evidence tending to show that it was, established conclusively by the evidence, and if that is so, it was not necessary to submit the issue. Upon the trial of the case appellant did not request the submission of any issues, and in his motion for new trial he did not complain of the omission of the issue of conversion, thereby waiving the error complained of, unless it is fundamental. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

This case was tried on its merits, and in the absence of a timely and proper assignment on this ground, it will be presumed that the act of conversion and appellant’s liability therefor were established by the undisputed evidence as a matter of law, or that the uncontradicted testimony, taken in connection with one or more of the jury findings, conclusively established that liability. Cox v. Rio Grande Valley Telephone Co., Tex.Civ.App., 13 S.W.2d 918, Gonzalez v. Alianza Hispano-Americana, Tex.Civ.App., 112 S.W.2d 802.

It may be true, as claimed by appellant, that facts exist entitling it to a reversal on the ground stated, but they are not manifest, not obvious, not apparent of record. To determine if the evidence was sufficient to warrant the submission of an issue of conversion on the part of appellant, it would be necessary for us to search the statement of facts, and it is well settled that such an examination is not permitted this court in passing on errors not apparent of record, such as this. 3 Tex.Jur. sec. 579, p. 821; Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903; Cox v. Telephone Co., Tex.Civ.App., 13 S.W.2d 918; Kent v. National Supply Co., Tex.Civ.App., 36 S.W.2d 811. For the reasons stated, appellant’s first proposition is overruled, as is its second proposition, for like reasons.

In his third proposition, appellant contends that the petition of appellee is insufficient to support a judgment. Appellee alleged that all of the tool joints and pipe were stolen from him and found in the possession of appellant, that he told appellant that they were stolen from him, that he demanded a return of his property and that the demand was refused. We think that, coupled with his other allegations of ownership and unlawful taking of the property, this allegation is sufficient to support the judgment rendered. 43 Tex.Jur. p. 527 et seq., sec. 18 et seq.

In his petition appellee alleged that appellant converted, among other things, 59 joints of pipe, and prayed for a recovery of the “pipe, pins and boxes, etc.”, or their value. Appellee testified, without objection, that he sued for 69 joints of pipe, which amounted to 1,500 feet, and that the number was mistakenly alleged to be 59 joints. In answer to question No. 2, the jury apparently based its finding of amount of damages on loss of 69 tool joints. Appellant raises a proposition that this finding of damages was excessive because for more than appellee alleged. We overrule this proposition. Since it appears that the number stated ifi the petition was a clerical error, and the variance is such that it did not surprise or mislead appellant, the finding will not be disturbed on appeal. Battles v. Barnett, Tex.Civ.App., 100 S.W. 817.

Appellee’s motion for rehearing will be granted, and the judgment of the court below affirmed. Former opinions of this court will be withdrawn, and this opinion substituted therefor.

Affirmed.


author: JACKSON, Chief Justice.

text:
    FISH v. BUSH et al.
    No. 5193.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1940.
    Rehearing Denied Oct. 21, 1940.
    W. S. Birge, of Amarillo, for appellant.
    E. O. Northcutt, of Amarillo, for appel-lees.
   JACKSON, Chief Justice.

This suit was instituted in the County Court of Potter County, Texas, by Ruth G. Bush, Arthur J. Dalies and James A. Bush, the appellees herein, and the trustees of the estate of W. H. Bush, deceased, against S. E. Fish, the appellant, on a note dated September 10, 1934, payable to the W. H. Bush Estate in the sum of $270.55 with interest thereon at 6% per annum on or before six months after date.

The appellant answered by general demurrer and general denial; pleaded failure of consideration and fraud based on the false representations of W. B. Simmons, the agent of James A. and W. IT. Bush, and alleged that the appellees had knowledge of the fraud and failure of consideration. The appellant also alleged that James A. Bush was indebted to the estate of W. IT. Bush in a sum greater than the amount of the note sued on.

The appellees in a supplemental petition without a verification thereof asserted that W. B. Simmons was not the agent of James A. and W. IT. Bush or .either of them and pleaded that appellant was es-topped to allege fraud or failure of consideration as a defense to the note.

A jury was impaneled and the testimony introduced, after which the court peremptorily instructed the jury to find for appel-lees, and on the verdict so found he rendered judgment against the appellant .for the sum of $376.45 with interest at rate of 6% per annum' from August 25, 1939, from which judgment this appeal is pros'ecuted.

The appellant challenges the action of the court in directing a verdict against him, contending that the testimony raised issues of fact which should have been submitted to the jury.

The evidence tends to show that some time prior to September 10, 1927, W. B. Simmons, the nephew and agent of W. H. Bush and James A. Bush, approached the appellant and represented to him that they had acquired a section of land and with others were building a club ground and recreation center in Palo Duro Canyon at a point some twelve or fourteen miles south of the city of Amarillo; that the club had been named The Palisades, on the improvement of which several thousand dollars had already been expended and that many thousand dollars in addition would be expended in the future for the development of the project. He represented that the lake had been stocked with fish, exhibited a map and prospectus to the appellant showing the intended location of a community house, other club houses, some bath houses, the tennis courts and a golf course; declared there would be facilities to keep saddle horses, trails constructed for horseback riding, all of which would be completed ' and when finished constitute the finest club property in the southwest. The appellant testified that he knew the Bushes, believed and relied on these- representations and was induced' thereby to enter into a written contract in-compliance with the terms of which James A. Bush, on September 10, 1927, conveyed to appellant Lot. No. 13 in Block No. Ill of the Palisades for a consideration of $750 to be paid as follows: $50 cash, the receipt of which was acknowledged, and $700 evidenced by four notes due in three, six, nine and twelve months after date, respectively, and each for the sum of $175, bearing interest at the rate of 6% per an-num. The record shows that the purchase of the lot entitled the appellant to membership in what was designated as The Palisades Casino and certain privileges of the grounds, club house and Casino golf course. Notes Nos. 1 and 4 were sold to the Plains Chevrolet Company and Note No. 2 was endorsed to W. B. Simmons and each of them paid and satisfied by the appellant.

The improvements were not placed on the ground as represented and Note No. 3 during the delay was barred by limitation. However, the project was not abandoned and on September 10, 1934, appellant executed the note sued on for the sum of $275.55, payable to the estate of W. H. Bush and as late as 1935 some one interested in The Palisades, which was a corporation, advised appellant that efforts were still being made to develop the property. Appellant at the time he executed the renewal note on which this suit is based did not know the project had been abandoned and did not intend to waive or relinquish his defense of fraud or failure of consideration in the event the improvements were not completed. The appellant went to appellee James A. Bush thereafter, offered to reconvey to him the lot, lose the $600 he had paid and cancel the transaction or to pay the note sued on if the property was improved as represented. These propositions were refused and thereafter this suit instituted.

The testimony is undisputed that the lot without the improvements and the maintenance of. the club as represented was “practically worthless” and as a circumstance to the lack of value of the lot purchased it will be noted that appellees do not ask for a foreclosure of the lien thereon. The facts and circumstances are far from being conclusive that the estate of W. H. Bush acquired the note sued on as an innocent purchaser for value.

It was admitted that James A. Bush was indebted to the Bush Estate in a sum in excess of the sum evidenced by the note.

The appellees’ contention seems to be that inasmuch as the note sued on was a substitute for the original note No. 3 given to James A. Bush, appellant is es-topped as a matter of law from urging fraud or failure of consideration arising out of the original, transaction as-a defense to the renewal note.

, The contention upon which appellees rely, in our opinion, is not controlling under this record.

• In Goodwin v. Abilene State Bank, Tex.Civ.App., 20 S.W.2d 1090, 1092, it is said: “Is this rule applicable to this case? ‘Where a note is executed to a payee only in renewal of a prior note given to him, the real consideration is that for which the prior note was given, and the failure óf same may be pleaded in an action on the latter note.’ 8 C.J. 251. If this be a correct statement of the law, as we think it is, it necessarily follows that the fact of renewal alone does not constitute any evidence of a waiver. We question, without attempting to decide, whether renewal with knowledge of the want or failure of consideration, and without other evidence of intention, should, as a matter of law, be held to show a waiver.”

In 8 C.J.. 444, para.. 658, 10 C.J.S., Bills and^Notes, § 278, the author says:

“As between the original parties, and as against transferees who are not bona fide purchasers for value, a renewal note is open to all defenses which might have been made against the original note, at least in so far as they relate to consideration, such as want or failure of consideration, fraud, usury, gambling debts, or other illegality.”

This announcement of the law is approved in Exchange Nat. Bank v. Parsons et al., Tex.Civ.App., 116 S.W.2d 817.

In our opinion the major portion of the consideration for this transaction failed, hence, there was an issue of partial failure' of consideration and fraud as well as an issue of innocent purchaser for value to be submitted to a jury.

The judgment is reversed and the cause remanded.


author: HALE, Special Justice.

text:
    BOOTH v. AMICABLE LIFE INS. CO. et al.
    No. 2317.
    Court of Civil Appeals of Texas. Waco.
    Oct. 3, 1940.
    Rehearing Denied Oct. 24, 1940.

      Walter T. Keith and George N. Lusch, both of Houston, for appellant.
    W. E. Terrell, and O. F. Jones, both of Waco, for appellees.
   HALE, Special Justice.

Amicable Life Insurance Company instituted this suit in the District Court of McLennan County, by bill of interpleader filed on February 22, 1940, against J. W. Renfro, Mrs. Ruth O. Booth Buvens and husband, and Mrs. Mary Elizabeth Booth, as claimants to the sum of $3,495.68 due on three certain policies of insurance issued to Euwell Booth as insured. The company admitted its liability to pay such sum to the rightful claimant, and simultaneously with the filing of its petition it deposited that amount into the registry of the court, there to abide judgment in the cause. It alleged that each of the defendants had asserted and was claiming the right to receive the entire amount due under such policies, and it plead facts showing that it was in real doubt as to which df the claimants was entitled to receive the proceeds. It further alleged that it was threatened with litigation by reason of such conflicting claims against which it had no adequate remedy at law. It prayed for the immediate issuance of a temporary injunction, enjoining each of the defendants from instituting any suit or proceeding in any court on account of the proceeds due under said policies, and that upon final hearing, the court determine the cause and approve its payment into the registry of the court of the amount due under said policies, that it be discharged from further liability, and that such injunction be made permanent.

Upon the presentation of the petition, the trial court, without notice to the adverse parties, entered his order granting the injunction upon the filing of proper bond, and directed the clerk to issue the writ, together with a copy of' the court’s order requiring the defendants to file their respective answers or other defense to the bill of interpleader, on or before the beginning of the next regular term of court on the 11th day of March, 1940, and to show cause, if any they had, as to why the plaintiff should not be discharged from further liability, and recover its costs. The required bond having been filed and approved, the writ of injunction, together with a copy of the court’s order granting the same, was properly issued and served on Mrs. Booth on February 26, 1940.

On March 8, 1940, Mrs. Booth, individually and in her capacity as temporary ad-ministratrix, filed in this cause her motion to dissolve the temporary injunction, alleging that on March 6, 1940, she had filed application in the probate court of Harris county to be appointed temporary admin-istratrix of the estate of Euwell Booth, and that an order was then entered by such court so appointing her, with authority to prosecute claim for the funds which the Insurance Company had tendered into the registry of the district court of McLennan county. She also filed her plea in abatement, and her answer, consisting of general and special exceptions, a general denial, and her claim that neither J. W. Ren-fro nor Mrs. Buvens had any insurable interest in the life of the deceased at the time of his death, and she prayed that the funds tendered into court by the plaintiff be turned over or transferred to the county court of Harris county, or to her as temporary administratrix, and for such other and further relief as she may show herself entitled to.

On March 9th, Mrs. Buvens and J. W. Renfro each filed a separate answer and cross petition, each alleging facts showing a right to recover from the insurance company the total amount due under said policies, and each praying for judgment against the insurance company for such amount, or in the alternative, that the clerk of the court be ordered to pay the entire proceeds from said policies to each of them respectively.

On March 23d, the motion of Mrs. Booth to dissolve the injunction, and her plea in abatement and exceptions came on to be heard, at which time the plaintiff introduced evidence in support of the material allegations in its bill. After hearing the evidence, the trial court immediately announced his rulings on the matters presented, but' the order evidencing such rulings was not actually signed and entered of record in the minutes of the court until April 1, 1940. The order as entered is quite lengthy, consisting of findings of fact in keeping with the allegations in the plaintiff’s bill of interpleader, and against the contentions urged by Mrs. Booth in her motion to dissolve. Such order provides in substance that the action of the insurance company in filing its bill of in-terpleader and in paying the net amount of the proceeds of said policies into the registry of the court, is in all things permitted and approved; that the motion to dissolve injunction, as well as the plea in abatement, demurrers, and all. exceptions relating to said bill of interpleader, are overruled; that the insurance company is discharged and relieved from all further liability in connection with the issuance of said three policies of insurance, and that such liability is in all things whatsoever, and to all persons whomsoever, terminated, and that the writ of injunction theretofore issued is declared continuing and permanent. The order concluded thus: “to all of which action of the court the defendant, Mrs. Mary Elizabeth Booth, in open court, duly excepted and gave notice of appeal to the Court of Civil Appeals of the Tenth Supreme Judicial District'of Texas, at Waco.”

The transcript and statement of facts were each filed with the clerk of this'court on April 25, 1940. The insurance company filed its motion to dismiss the appeal on the ground that the transcript was not filed in time. Thereafter various motions and replies were filed and on September 26th the whole matter was submitted to this court on oral arguments by counsel for the respective parties.

It would serve no useful purpose to set out the various contentions of the parties concerning the merits of the case, or to express our views with respect thereto, because we have reached the conclusion that a correct analysis of the record here presented requires us to hold, for the reasons hereinafter set forth, that this court is without jurisdiction to pass upon any issue in the case.

Article 4662 of the 1925 Revised Civil Statutes authorizes an appeal from an interlocutory order wherein a temporary injunction may be granted or refused, or when motion to dissolve has been granted or overruled, by filing the transcript in such case with the clerk of the appellate court not later than twenty days after the entry of record of such order or judgment. No excuse is shown for the failure to file the transcript in this cause within twenty days from April 1, 1940, as required by the statute, and no excuse for such failure could be shown, because the filing of the transcript within the time required by the statute is mandatory and jurisdictional. Dallas County Arcadia Fresh Water Supply Dist. No. 1 v. Pruitt, Tex.Civ.App., 245 S.W. 85; Stephenson v. Black Bros. Co., Tex.Civ.App., 265 S.W. 1119; Dodson v. Ingram, Tex.Civ.App., 270 S.W. 575; McFaddin v. Neches Canal Co., Tex.Civ.App., 278 S.W. 931; Harrell v. Tilley, Tex.Civ.App., 111 S.W.2d 736; Texas Farm Products Co. v. Thompson, Tex.Civ.App., 127 S.W.2d 492. Thgrefore, under the record presented, this court is without jurisdiction to pass upon the order or judgment complained of, in so far as the same overruled and refused the motion of the appellant to dissolve the temporary injunction, and unless such order is a final judgment so as to be appealable without regard to the provisions of Art. 4662, then this court has acquired no jurisdiction whatsoever over the litigation.

It is elementary that only one final judgment shall be rendered in any cause, except where it is otherwise specially provided by law. Such is the express provision of Article 2211 of the 1925 Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 2211. It has been repeatedly held that the test of whether a judgment is final so as to be appealable, is whether it disposes of the whole matter in controversy as to all of the parties. Whitaker v. Gee, 61 Tex. 217; Mignon v. Brinson, 74 Tex. 18, 11 S.W. 903; Havard v. Carter-Kelley Lbr. Co., Tex.Civ.App., 162 S.W. 922; Gulf, C. & S. F. R. Co. v. Atlantic Fruit Distributors, Tex.Civ.App., 184 S.W. 294; Wright v. Chandler, Tex.Civ.App., 173 S.W. 1173; Busby v. Schrank, Tex.Civ.App., 174 S.W. 295; Martin v. Daniel, Tex.Civ.App., 265 S.W. 409; Pecos & N. T. R. Co. v. Epps & Matsler, Tex.Civ.App., 117 S.W. 1012; Texas Cities Gas Co. et al. v. Dickens, Tex.Civ.App., 133 S.W.2d 810.

While the order attempted to be appealed from does have certain earmarks of a final judgment, in that it purports to approve the action of the insurance company in filing its bill of interpleader, and it purports to relieve and discharge the insurance company from further liability, and it purports to make the temporary writ of injunction permanent, yet it is thought that such provisions must, in the light of the pleadings and the 'other provisions of the judgment itself, be construed merely as interlocutory orders to be carried forward ultimately into the final judgment to be rendered and entered upon the disposition of the cause. The order recites on its face that the cost in the sum of $10 incurred by the insurance company shall be taxed as part of the costs in the case, to be refunded to the insurance company “upon the final disposition of the cause”. We are not called upon to decide, and do not decide whether the cause asserted by the insurance company against the several claimants was a separable controversy from that which exists between the claimants, because no effort whatsoever was made by the trial court to sever such causes, if indeed they be severable. The insurance company alleged in its bill of interpleader that each of the defendants had asserted and was claiming the right to receive the entire amount due under the three policies, and it sought to require them to set up their claims in its suit in the 19th District Court, and it prayed that such court determine the cause and approve its payment into the registry of the court of the amount due by it. The several claimants did appear and did set up their respective claims to the funds in controversy, as shown by their pleadings. However, such conflicting claims have not been passed-upon or disposed of, and no contention is or could properly be urged here to the effect that any attempt whatsoever was made by the terms of the judgment in question tq dispose of the whole matter in controversy as to all of the parties reflected by the pleadings. No attempt was made by the terms of the judgment to sever a controversy existing between the insurance company on the one hand and the several claimants on the other hand, from an additional or independent controversy existing solely among the several claimants. The mere fact that the order erroneously recites that the injunction has been made permanent does not, under the circumstances, make such injunction permanent as a matter of law, if indeed such judgment is not a final one. Nor does the improper recitation in such order to the effect that the insurance company is discharged from further liability accomplish that end, if indeed the judgment is not a final one. We know of no reason why the trial court could not, or should not, if future developments should require it, change any of the provisions of the order attempted to be appealed from. After carefully reviewing the pleadings and the order which was actually entered, we have concluded that the latter is not a final judgment within the purview and meaning of the law as applicable to this case.

We also call attention to the fact that no bond as required .by Article 2265 of the 1925 Revised Statutes is contained in the transcript, nor is there any affidavit in lieu thereof. The only notice of appeal is that contained in the order which recites that “The defendant, Mrs. Mary Elizabeth Booth, in open court duly excepted and gave notice of appeal”. Mrs. Booth was made a party defendant only in her individual capacity. While she recited in her pleadings that she was appearing individually and as temporary administratrix, we believe the record is insufficient to show that she has perfected any appeal in her fiduciary capacity as such temporary ad-'ministratrix, and certainly she has not done so in her individual capacity.

Having concluded that this court is without jurisdiction to pass upon any issue in the case, the appeal is dismissed.


author: SLATTON, Commissioner.

text:
    JONES et al. v. GUY et al.
    No. 7661.
    Supreme Court of Texas.
    Oct. 23, 1940.

      C. B. Randell, of Sherman, T. J. Ramey and Vern D. Adamson, both of Sulphur Springs, and Hamlin Smithdeal, J. C. Muse, J. C. Muse, Jr., and Gamewell, O’Brien & Umphress, all of Dallas, for plaintiffs in error.
    Grover Sellers, of Austin, and Turner, Rodgers, Winn & Sellers and Geo. S. Terry, all of Dallas, for defendants in error.
   SLATTON, Commissioner.

Mrs. Beulah Guy and her husband brought this suit in the district court of Hopkins County to recover an undivided one-half interest in 33 tracts of land and for conversion of personal property against the executors and legatees named in the last will of Mrs. Susan Belle Pierce, deceased, who was the wife of J. K. Pierce, deceased. Her cause of action was in the nature of a statutory form of trespass to try title to land and for conversion of personal property. The theory of he” recovery was upon an equitable estoppel which was alleged as follows, towit:

“That J. K. Pierce and Susan Belle Pierce, both deceased, in their lifetime took the plaintiff, Beulah Guy, from her natural father, George W. Brannon, when she was about three years of age, with the understanding and agreement between her natural father and the said J. K. Pierce or the said J. K. Pierce and Susan Belle Pierce that they would adopt said plaintiff and make her their adopted daughter; that said agreement was made by the father of the plaintiff for her benefit and in her behalf; that pursuant to said agreement and understanding, the natural father of plaintiff, Beulah Guy, delivered her to the said J. K. Pierce and Susan Belle Pierce, where she continued to live until she was grown and married; that the said J. K. Pierce and Susan Belle Pierce, at the time they took said plaintiff from her natural father, gave her the name of Beulah Pierce, and from thence on she was known as Beulah Pierce, and she was taught by them to call them ‘Mammy’ and ‘Pappy’ which she did until their death.

“It is further alleged that the said J. K. Pierce and Susan Belle Pierce held said plaintiff out to their friends as their daughter and as their adopted daughter, and on all occasions introduced her as their daughter and their adopted daughter. They fed, clothed and educated her, and she was known in the community at Sunday School, church and school by the name and only by the name of Beulah Pierce; that said plaintiff was kind and affectionate to the said J. K. Pierce and Susan Belle Pierce during; all the time that she lived with them, waiting on them when they were sick and doing any and all kinds of work required of her by the said J. K. Pierce and Susan Belle Pierce, which work was such as was ordinarily required of children by their parents; that said plaintiff never at any time had any trouble with either the said J. K. Pierce or the said Susan Belle Pierce, but their relationship to said plaintiff was friendly and that of a mother and father toward her until their death long after this plaintiff was grown.

“It is further alleged that after the plaintiff, Beulah Guy, was grown and married to Professor O. L. Guy and after they had children of their own, their children called J. K. Pierce and Susan Belle Pierce ‘Grandma’ and ‘Grandpa’, and the said Susan Belle Pierce and J. K. Pierce called plaintiffs’ children their grandchildren; that plaintiffs,- after they were married, continued on good terms and friendly relations with J. K. Pierce and Susan Belle Pierce until their death; that only a short time prior to the death of J. K. Pierce he gave the plaintiff a home in the city of Sulphur Springs, Texas, on the express consideration of his love and affection for her and her children.

“It is further alleged that the said Susan Belle Pierce, who survived the said J. K. Pierce, continued to hold the plaintiff, Beulah Guy, out as their adopted daughter, and only a few years ago, in 1933, in relating her life history, stated that she and J. K. Pierce adopted the plaintiff, Beulah Guy, as their daughter.”

W. W. Jones et al., as the executors and legatees named in the will of Mrs. Pierce, pleaded not guilty, the two, three, four, five and ten years’ statutes of limitation, the statute of frauds and an estoppel against Mrs. Guy through her silence from the death of Mr. Pierce on August 1, 1918, until after the death of Mrs. Pierce on February 2, 1937.

A jury trial resulted in a directed verdict against Mrs. Guy, upon which a judgment was entered in favor of W. W. Jones et al. An appeal was perfected to the Court of Civil Appeals at Texarkana. That court reversed the judgment of the district court and remanded the cause for trial. 132 S.W.2d 490. This court granted writ of error.

The Honorable Court of Civil Appeals, acting under well-settled rules with regard to evidence in cases where a verdict has been directed by the trial court, quoted in its opinion evidence which if found to be true brings the case within the rule announced by this court in the case of Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72. After mature consideration of the case on submission in this court we have concluded that the opinion of the Court of Civil Appeals properly disposes of the case, and we adopt the following portion of the opinion as the opinion of this court [132 S.W.2d 493]:

“The facts of this case clearly fall within the rule which our Supreme Court in Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72, 79, has declared to be the correct rule, namely:

“ ‘It seems to us that the rule is correctly stated by the annotator in the notes to the case of In re Taggart’s Estate [190 Cal. 493, 213 P. 504], 27 A.L.R. page 1365, where the writer states: “The cases considering the matter are in substantial harmony in sustaining an estoppel in pais to preclude adoptive parents and their privies from asserting the invalidity of adoption proceedings, or, at least, thé status of the adopted child, when, by performance upon the part of the child, the adoptive parents have received all the benefits and privileges accruing from such performance, and they by their representations induced such performance under the belief of the existence of the status of adopted child.” Holloway v. Jones (Mo.Sup.) 246 S.W. 587; Young v. McClannahan, 187 Iowa 1184, 175 N.W. 26; Fiske v. Lawton, 124 Minn. 85, 144 N.W. 455; Jones v. Leeds, 41 Ind.App. 164, 83 N.E. 526; Anderson v. Blakesly, 155 Iowa 430, 136 N.W. 210; Barney v. Hutchinson, 25 N.M. 82, 177 P. 890; In re Reichel, 148 Minn. 433, 182 N.W. 517, 16 A.L.R. 1016; Milligan v. McLaughlin, 94 Neb. 171, 142 N. W. 675, 46 L.R.A.,N.S., 1134; Wolf’s Appeal (Pa.) 13 A. 760, 10 Sadler 139; In re Williams’ Estate, 102 Cal. 70, 36 P. 407, 41 Am.St.Rep. 163; In re McKeag’s Estate, 141 Cal. 403, 74 P. 1039, 99 Am.St.Rep. 80; (note to) Carlin v. Bacon, 69 A.L.R. 17; Tuttle v. Winchell, 104 Neb. 750, 178 N.W. 755, 11 A.L.R. 814; Horton v. Troll, 183 Mo.App. 677, 167 S.W. 1081; Thomas v. Maloney, 142 Mo.App. 193, 126 S.W. 522.’

"Appellees, in substance, contend that the above quoted rule granting relief through the equitable remedy of estoppel has no application and the relief can not be granted except in cases where it is shown that the adoptive parent has executed and acknowledged a deed of adoption, but has failed to record it. The testimony in the Cubley case shows that the adoptive parent had there executed and acknowledged an instrument as part of the agreement under which the child was taken, which the Court of Civil Appeals, Barbee v. Cubley, 25 S.W.2d 689, construed as being testamentary in character, and concerning which instrument the Supreme Court held that the adoptive pdrent by her acts and representations was es-topped to deny that it was a deed of adoption. But the doctrine of equity upon which decision in the Cubley case was based does not rest upon execution of the adoption deed. It rests upon the adoptive parent having received the benefits of. the relation fully performed by the child. The language of the rule itself as declared in the Cubley case, as well as the authorities there cited from which the rule is drawn, clearly shows that exercise of the equitable power of the court to grant relief to the child, against the fraud of the adoptive parents’ neglect or design in failing to do that which he in equity was obligated to do, is not dependent or conditioned upon such adoptive parents having executed but failed to file an instrument of adoption. The first case cited by the court in support of the rule declared in the Cubley ■case is Holloway v. Jones, Mo.Sup., 246 S.W. 587, in which the relief was granted though the adoptive parent ‘neyer executed the deed of adoption.’ The following statement of that case, and excerpt from the opinion, clearly illustrates the error •of appellees’ contention in the present case:

“ ‘In Holloway v. Jones, 246 S.W. 587, 590, the Supreme Court of Missouri sustained the rights of a person taken, while an infant, into the family of McHaney and wife, under a promise on the part of the latter to adopt it. We shall not state the facts, as the case is available. It is sufficient to say that the child performed all the duties of a child to its adopting parents. The latter, however never executed the •deed of adoption. The suit was between the child after the deaths of the McHaneys and a collateral relative. The • Supreme Court sustained the claim of the child. The adoption statutes of Missouri were quite similar to our own. * * *

“ ‘ “In all these cases it is held, in substance, that one who takes a child into his home as his own, receiving the benefits accruing to him on account of that relation, assumes the duties and burdens incident thereto, and that where justice and good faith require it the court will enforce the rights incident to the statutory relation of adoption. The child having performed all the duties pertaining to that relation, the adopting parent will be es-topped in equity from denying that he assumed the corresponding obligation. In equity it will be presumed that he did everything which honesty and good conscience required of him in justification of his course. Equity follows the law except in those matters which entitle the party to equitable relief, although the strict rule of law be to the contrary. It is at this point that their paths diverge. As the archer bends his bow- that he may send the arrow straight to the. mark, so equity bends the letter of the law to accomplish the object of its enactment. In all the cases to which we have referred supra, and in numerous others, this court has consistently held that he who has taken possession of a child in the capacity of an adopting parent cannot escape the duties and liabilities incident to that capacity by failing to follow the forms that the statute has prescribed- to that end.” ’

“Among others, appellees cite the following cases: Sanders v. Lane, Tex.Com.App., 227 S.W. 946; Allee v. Vaden, Tex.Civ.App., 112 S.W.2d 237; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Cheney v. Coffey, 131 Tex. 212, 113 S.W.2d 162, 114 S.W.2d 533; Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147. The rule declared in the Cubley case, and which we have followed in this case, is not in conflict with any of the above cited cases, the distinction lies in the remedy pursued by the claimant. The apparent confusion may be clarified by the following classification of remedies attempted to be pursued for recovery of a decedent’s estate.

“(a) Straight statutory adoption. This classification under the statute, R.S.1925, Article 42, required three steps of the adoptor: (1) execution, (2)' acknowledgment, and (3) filing for record the deed of adoption. This is the adoption referred to in the following cases: Sanders v. Lane, supra, and Allee v. Vaden, supra.

“(b) Suits for specific performance of contract to leave property at death. This type of contract when entered into in parol has frequently fallen under the ban of the statute of fraud in Texas. It is best illustrated in the following cases: Hooks v. Bridgewater, supra, and Cheney v. Coffey, supra, and Upson v. Fitzgerald, supra.

“(c) Estoppel to deny adoption of a child. Among the cases recognizing this remedy are: Cubley v. Barbee, supra; Holloway v. Jones [supra], and the more recent case of Thompson v. Moseley [344 Mo. 240], 125 S.W.2d 860. Also the remedy is recognized in Cheney v. Coffey, supra.” • ,

Plaintiffs in error contend that parol agreements to adopt are repugnant to the statute of frauds. This contention was made in the Court of Civil Appeals and was by implication overruled by that court. In Texas Jurisprudence, Volume 1, page 728, Section 16, it is stated that: “A contract for the adoption of a child is not within the statute of frauds.” The case of Taylor v. Deseve, 81 Tex. 246, 16 S.W. 1008, 1010, is cited to support the text. In that case it is said: “As will be seen, the defendant also relied upon the statute of frauds, claiming that the verbal contract could not be performed in one year. The contract was not within the statute, as it may or may not have been performed within one year. The child might have died during the first year.”

The statúte of frauds sought to be invoked in this case is Section 4 of Article 3995, Vernon’s Annotated Civil Statutes of Texas, which is as follows:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *

“4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year.”

It seems to be the prevailing view in other jurisdictions that the statute of frauds does not preclude the specific performance of an oral contract to adopt where the proof of performance is clear and unequivocal and is clearly referable to the contract; 1 Amer.Jur. p. 630. This was quoted with approval in the case of Cheney et al. v. Coffey, 131 Tex. 212, 113 S.W.2d 162, 114 S.W.2d 533 (Section B, Commission of Appeals), opinion adopted by this court.

The statutes of Texas authorizing adoption in effect at the time of the occurrence of the facts upon which this suit is based, with regard to the rights of one adopted, provided “ * * * shall entitle the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him or her”. Gammel’s Laws, Vol. 3, p. 474. If the statutory procedure had been followed by Pierce and wife, Mrs. Guy’s right would have been that of a legal heir of the adoptive parents under the statute quoted. Eckford v. Knox, 67 Tex. 200, 2 S.W. 372. ' It is our opinion that the effect of sustaining an estoppel in pais to preclude the adoptive parents and their privies from asserting the invalidity of adoption proceedings or at least the status of the adopted child, when by performance upon the part of the child, the adoptive parents have received all the benefits and privileges accruing from such performance under the belief of the existence of a status of an adopted child is not enforcing a parol contract for the sale of real estate. This is true for the obvious reason that an adopted child does not inherit property in virtue of the status of an adopted child alone but depends upon the intestacy of the adoptive parent, together with the statutes of descent and distribution. Moreover, the status of an adopted child with respect to the property of the adoptive parent is the same as that of the parent’s own children. Masteron v. Harris, 107 Tex. 73, 174 S.W. 570. Mr. Pierce had the right to dispose of his property by will, which, as the record shows, Mrs. Pierce exercised. Masterson case, supra. But under the facts here neither the parents nor their privies has the right to deny the status of an adopted child existing between Mrs. Guy and Mr. and Mrs. Pierce.

The rights of heirs of an adopted child seem to be different to the rights of heirs of a natural child. Harle v. Harle, 109 Tex. 214, 204 S.W. 317, 15 A.L.R. 1261.

Plaintiffs in error insist that the same rule as applied to oral contracts to devise property should be applied to the facts of this case. Oral contracts to adopt and oral contracts to devise real estate are materially different, as is shown by the reasons above stated. Distinction between the two classes of contracts has been recognized in Jordan v. Abney, 97 Tex. 296, 78 S.W. 486 and Clark v. West, 96 Tex. 437, 73 S.W. 797. In suits to enforce contracts to devise property at death it has been many times decided that the contract falls under the ban of the statute of frauds for the simple reason that it is nothing more than a parol contract for the sale of land and in such a case the statute of frauds precludes its enforcement in law or in equity. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216. We conclude, therefore, that the statute of frauds is not applicable to the facts made here.

It is insisted through the fourth proposition contained in the application for the writ of error that the Court of Civil Appeals was in error in considering defendants' in error’s pleading of estoppel in connection with a statutory action of trespass to try title when such plea was specifically limited to the action for conversion. The pleadings of defendants in error contain one count in which land was sought to be recovered in the ordinary statutory action of trespass to try title and for damages, as well as for damages for conversion of personal property. After the trial court indicated that he was about to direct a verdict in favor of plaintiffs in error, but before the jury had been instructed, defendants in error obtained leave of the court to file the pleadings hereinbefore set out, whereupon the trial court directed the jury to return a verdict in favor of plaintiffs in error.

The Honorable Court of Civil Appeals sustained the assignment of defendants in error that the trial court erred in directing a verdict, reversed the judgment in its entirety, and remanded the cause for trial, evidently upon the theory that plaintiffs in error’s motions for a directed verdict embraced all actions within the pleadings and proof tendered by defendants in error. The court entertained the opinion that as defendants in error under their pleadings and proof made a case which could be sustained in law or in equity that the trial court committed reversible error in giving the peremptory instruction. In the Court of Civil Appeals, as ■ well as in the trial court, plaintiffs in error treated the causes of action asserted by defendants in error as one and, as we have stated, included both actions within their motions for a directed verdict in the trial court and in their motions for rehearing assigned error to the reversal and remand of the cause as an entire judgment. In this situation it is unnecessary for us to make a decision on whether or not it is necessary for defendants in error to specially plead facts upon which their equitable estoppel is grounded in connection with the statutory action of trespass to try title. This is particularly true in this case, for it appears that the trial court directed a verdict under an erroneous theory of law. This is clearly indicated in the record before us.

Moreover, the Court of Civil Appeals, having properly determined that error was committed in the trial of the case, could properly reverse and remand the entire cause. . It has been held that the power of the Court of Civil Appeals in this respect is substantially the same as that of the Supreme Court. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178. In the case of Cheney et al. v. Coffey et al., 131 Tex. 212, 113 S.W.2d 162, 164, 114 S.W.2d 533, it is said: “ “The statute provides that the' Supreme Court shall reverse and remand, rather than reverse and render, a cause, when the justice of the case demands another trial. R.S. art. 1771. Under this we have held that we will remand rather .than render final judgment, where justice will probably be better subserved. Faulkner v. Reed (Tex.Com.App.) 241 S.W. 1002. This rule is followed even in cases where the Supreme Court has power under the facts to reverse and dismiss the case. Faulkner v. Reed, supra; Green v. Rugely, 23 Tex. 539; Zwernerman v. Rosenberg (Tex.Sup.) 11 S.W. 150.” Waggoner v. Herring-Showers Lumber Co. et al., 120 Tex. 605, 40 S.W.2d 1, 4. See, also, Taylor v. United States Fidelity & Guaranty Co. (Tex.Com.App.) 283 S.W. 161; Donoho v. Lewis (Tex.Com.App.) 12 S.W.2d 983. Kennedy et al. v. American Nat. Ins. Co. [130 Tex. 155], 107 S.W.2d 364, 368, 112 A.L.R. 916.”

Plaintiffs in error insist that defendant in error had elected to take under the will of Mrs. Pierce and was thereby estopped to assert a different claim, as is attempted in this suit. It is sufficient to say that the record as presented does not show as a matter of law that defendants in error so elected. See 44 Texas Jurisprudence, page 871, Section 29, wherein it is said: “An election may be express or implied. When not éxpressly made, it is a question of intention and must be decided from all the facts and circumstances of the particular case. The question has been said to be one of fact ordinarily and to be submitted to the jury for determination.” We pretermit further discussion in view of another trial.

The judgment of the Court of Civil Appeals which reversed and remanded the judgment of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: SHARP, Justice.

text:
    CANTLEY et al. v. GULF PRODUCTION CO. et al.
    No. 7457.
    Supreme Court of Texas.
    Oct. 23, 1940.
    Mayfield, Grisham & Grisham and J. A. Lantz, all of Tyler, and Wynne & Wynne, of Longview, for plaintiffs in error.
    John E. Green, Jr., John Broughton, B. C. Clark, Robert F. Carter, arid Irwin W. Coleman, all of Houston, for defendants in error.
   SHARP, Justice.

Mary E. Cantley, Polly Timms, and Alberta Tibbs, being the children of John Douglass, deceased, joined by their husbands, filed a trespass to try title suit for a 30-foot strip of land, designated as Lot No. 5 in a partition of the Tucker estate, set aside in the decree of partition for a road, which was never opened. Plaintiffs in the trial court specially pleaded title by the ten years statute of limitation; which was sustained by the finding of the jury. The Gulf Production Company, as the. alleged leasehold owner, and various royalty owners, the fee owner, and the heirs of Tucker were made defendants. Ben Laird, the owner of Lot No. 2, which adjoins the land in controversy, intervened. The trial court entered judgment denying the plaintiffs and the intervenor any recovery. The intervenor did not appeal from the judgment of the trial court. The Court of Civil Appeals at Texarkana affirmed the judgment of the trial court. 118 S.W.2d 448.

In 1910 a 668-acre tract of land was partitioned in the District Court of Gregg County among the heirs of M. E. Tucker, The report of the Commissioners, containing field notes for each subdivision, and accompanied by a partition map prepared by the county surveyor, was duly recorded. A substantial reproduction of .the map relating to the land in controversy is inserted herein:

We quote from the opinion of the Court of Civil Appeals the following statement [118 S.W.2d 449].

^ *s dear from other recitals in the decree and from this map as filed that a narrow strip of land was .set apart as a ‘road reservation’ between Lot No. 2 to the eas^ and Lots Nos. 1, 4 and S to the west, This decree describes Lot No. 5 to-wit:

“ ‘Out of the W. P. Chism survey, beginning 30 feet West of the N. W. corner of Lot No. 2, a stake in Rabbit Creek; Thence S. 25 E. keeping 30 feet from Lot No. 2 for a road reservation 750 varas to the N. E. corner of Lot No. 4; Thence S 81 W 800 vrs. to Rabbit Creek; Thence down said creek to the place of beginning, containing 74 acres.’

“The entire tract was in the woods at the time of the partition. After John Douglass, the father of these appellants, purchased Lot No. 5 and Ben Laird acquired Lot No. 2, these lands were fenced and placed in cultivation. The fence of Douglass erected about 1913 included the 30-foot strip in controversy which he cultivated, and his possession of it ripened into a ten-year limitation title. A road was never established upon this strip. Douglass opened up a road on this' Lot No. 5 which ran west of the strip in controversy and which was used in lieu of the road designated in the partition decree. After the discovery of oil in that community an improved highway was constructed through Lot No. 5 west of the strip in controversy.

“The description of Lot No. 5 in the deed wherein John Douglass acquired title and the deed wherein Douglass and the children of his deceased wife conveyed off in 1929, under which last conveyance appel-lees claim title to this 30-foot strip are the same, and each reads as follows:

“ ‘A part of the W. P. Chism sur. and known as tract No. 5 beginning 30 feet West of the Northwest corner of Lot No. 2 a stake in Rabbit Creek; Thence South 25 East keeping 30 feet from Lot No. 2 for a road reservation 750 varas to the Northeast cor. of Lot No. 4; Thence S. to Rabbit Creek; Thence down said creek to place of beginning, containing 74 acres of land, described as tract No. 5 in Commissioners’ report J. M. Hoskins Co. sur. to District Court of Gregg County, April term A. D. 1910 in the case of Lizzie Crawford et ais v. Aurelia Laird et als, * * * which report is on record in Book X pages 178-179 in records of deeds of Gregg County, Texas, for full explanation reference is made to said records.’

“It is to be noted that the deed executed by Douglass and his heirs called for beginning point to be thirty feet West of the Northwest corner of Lot No. 2 and thence to run South 25 East keeping thirty feet from Lot No. 2 for a road resei'vation. This, in effect, calls for the West line of this road as the East line of Lot No. 5, or it may be said that it designates this thirty-foot road or strip as the Eastern boundary of said Lot No. 5, or along the West line of said road. It is to be further noted that the deed refers to the tract as being Lot No. 5 and refers to the decree with a plot then of record. This plot shows that the east line of Lot No. 5 fronting on the strip stops at the exterior line of such road reservation and shows the location of this strip of land for a road.

“Douglas acquired a ten-year limitation title to the whole 30-foot strip, and title to the West half of the strip by virtue of the conveyance to him of Lot No. 5. When he and his children conveyed this lot off, this 30-foot strip was situated upon the eastern edge of his land then conveyed by him. He owned no land on further to the East of the strip.”

The 30-foot strip of land in controversy was created as a road reservation in the partition proceedings, but was never actually used in its entirety as a road. Plaintiffs claim this strip of land by limitation, and the jury fotind that John Douglass had acquired the land by the ten years statute of limitation. The defendants contended that the description used made the 30-foot strip a part of Lot No. 5, and this contention was upheld by the trial court and by the Court of Civil Appeals. The descriptions relating to this 30-foot strip, as used in the partition proceedings and in subsequent instruments, are substantially as follows :

The description of Lot No. 2 makes no mention of the strip, its West line being “thence N. 25 W. 1415 varas to the center of Rabbit Creek.”

The description of Lot No. 5 reads: “ * * * beginning 30 feet W. of the N.W. cor. of Lot No. 2 * * *; thence S. 25 E. keeping 30 feet from the West line of Lot No. 2 for a road reservation 750 varas.”

The description of Lot No. 4 reads: “* * * to a stake 30 feet West of the West line of Lot No. 2, said 30 feet is for a road reservation; • thence N. 25 W. keeping 30 feet West of the West line of Lot No. 2.”

John Douglass bought Lot No. 5 by this description in 1912, and sold it by the same description in 1929. John Douglass and his children surrendered possession of all the property to their grantees, including this strip. So far as this record discloses, they never made any claim to it until this suit was filed. The controlling question for decision here is: Did the deed from Douglass and his children convey the title to this 30-foot strip of land to their grantees, or did they exclude this strip from such conveyance?

It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and disputes. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to. be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance; unless it cleai'ly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip. See Cox v. Campbell, Tex.Sup., 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160. For an annotation of the decisions bearing on this question, see also 123 A.L.R. 543, 47 A.L.R. 1277, and 2 A.L.R. 7.

In this instance Douglass and his children conveyed all the land they owned in this vicinity adjoining this strip of land, and surrendered possession of such land to the grantees, including the strip in controversy. There is nothing in this record to show that this land was of any benefit to Douglass and his children, or that there existed any reason for reserving it at the time the conveyance was made; nor is 'there any language used in the deed of conveyance made by them that it was their intention to definitely reserve this strip from such conveyance.

In construing the conveyance from Douglass and his children to their grantees with reference to this strip, it must be kept in mind that in the description of the various subdivisions of the land partitioned, as above described, reference is made to the map accompanying the report of the Commissioners, which was duly recorded. The deeds executed afterwards refer to such subdivisions for a definite description of the land conveyed. The map clearly shows that this strip was reserved for a road. The description of the land conveyed by Douglass and his children does not show an intention to reserve this strip of land. In short, they surrendered this strip with the other land conveyed to their grantees. This act definitely indicates that they intended to convey all land owned by them in this survey.

In the case of Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 1084, 85 A.L.R. 391, the rule of presumption was announced with reference to conveyances of land adjoining a railroad right of way. The rule announced in that case was based upon a practical effect of the intention of the grantor in such conveyance, and not solely upon a consideration of public policy. In the course of the opinion rendered in that case it was said:

“The use of this presumption is merely the application in a different form of the familiar rule of construction which has always been enforced by the courts, that is, to indulge the presumption that a grant- or intends to convey to his grantee all of the appurtenant rights incident to the beneficial enjoyment of property which he has conveyed. In other words, when a person conveys a piece of property abutting upon a public highway or nonnavigable stream it is but natural to assume, in the absence of an express reservation to the contrary, that he intends to convey the same with all of the beneficial rights enjoyed by him in its use. * * *

“We think the legal presumption is sustained by sound reason when it is based upon the fact that valuable rights and privileges appurtenant to property should be presumed to pass in a conveyance thereof in the absence of a clear and unequivocal intention to the contrary.”

In the recent case of Cox v. Campbell, Tex.Sup., 143 S.W.2d 361, this Court reviewed this question and the decisions relating thereto, and reiterated the following general rule: “The rule has been definitely announced in the Warwick and Weed cases that where a deed conveys by specific field notes land abutting on a street or public highway or railroad right of way, it conveys title to the property, to the center of the street, public highway, or railroad right of way; and such rule is not overcome even though the field notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms.”

In 9 Corpus Juris, p. 203, § 97, it is said: “Where a highway is laid off entirely on the owner’s land, running along the margin of his tract, and he afterwards conveys the land, the fee in the whole of the soil of the highway vests in his grantee.” For a discussion of the foregoing rule, see the following authorities: Snoddy v. Bolen, 122 Mo. 479, 24 S.W. 142, 25 S.W. 932, 933, 24 L.R.A. 507; Johnson v. Arnold, 91 Ga. 659, 18 S.E. 370; Taylor v. Armstrong, 24 Ark. 102, 107; Haberman v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 L.R.A. 611; In re Robbins et al., 34 Minn. 99, 24 N.W. 356, 57 Am.Rep. 40; Cuneo v. Champlin Ref. Co., 178 Okl. 198, 62 P.2d 82; Paine v. Consumers’, etc., Co., 6 Cir., 71 F. 626. See also 11 C.J.S., Boundaries, § 35, pp. 580, 581, 582.

In view of the public policy of this State with reference to such strips of land, and the presumption that it was the intention, of the grantors to convey such narrow strip to the grantees with the other land adjoining same, we do not think that it affects the rule, so far as the title to the strip is concerned, if the road was never used or if it was abandoned. Amerman v. Missouri, K. & T. R. Co., Tex.Civ.App., 182 S.W. 54.

Applying the foregoing principles announced by this Court to the facts involved here, the conclusion is inescapable, from the language used in the conveyance from Douglass and his children to the grantees, that it was the intention of the grantors to include this strip of land in such conveyance. Any other construction of such conveyance would nullify the rule announced in the decisions above cited, and which has become the public policy of this State.

We have carefully considered the questions raised in this record, and conclude that the trial court and the Court of Civil Appeals correctly decided the issues involved in this case. Therefore, the judgments of the trial court and of the Court of Civil Appeals are affirmed.


author: GERMAN, Commissioner.

text:
    CASS COUNTY et al. v. RAMBO et al.
    No. 7651.
    Supreme Court of Texas.
    Oct. 16, 1940.
    Newland, Cornett & Whitworth, of Linden, Wynne & Wynne, of Longview, and Virgil Childress, Lawler, Wood & Chil-dress, and R. O. Kenley, all of Houston, for plaintiffs in error.
    Ramey, Calhoun & Marsh, of Tyler, Ben A. Harper, of Houston, Lasseter, Simpson & Spruiell, of Tyler, W. H. Francis and Walace Hawkins, both of Dallas, Carney & Carney, of Atlanta, Vinson, El-kins, Weems & Francis, W. H. Francis, Jr., and Thomas Fletcher, all of Houston, Don Emery, of Bartlesville, Okl., and R. K. Batten, of Houston, for defendants in error.
   GERMAN, Commissioner.

This suit was brought by Cass County and John G. K. Towns, its lessee, to recover 66.05 acres of land, alleged to be a part of Cass County School Land. They will be designated plaintiffs. The suit was against Derious Rambo and wife, as well as numerous others claiming under them, and they will be referred to as defendants. The trial in the district court resulted in an instructed verdict in favor of defendants, and this judgment was affirmed by the Court of Civil Appeals. 131 S.W.2d 214. The Court of Civil Appeals discussed but one question. Under our view of the case it has been necessary to' consider other questions, and this has involved a large amount ■ of work.

For convenience we are reproducing a portion of plaintiffs’ principal map, which we think will aid in giving an accurate understanding of much that is shown by the record. The portion of said map is as follows:

For the purpose of this decision it may be taken as admitted by plaintiffs that the Archer Survey, with its south line and southwest corner, the Wilson Robinson Survey, with its south line, southeast and southwest corners, the W. B. Hughes Survey, with its northwest corner and north line, the William Crowder Survey, and the northeast corner of the J. H. Rives Survey, are actually located upon the ground as represented on this map. The real controversy in the last analysis is whether the location of the east line of the Robert Trammel Survey is from the Point A to the Point D on the map, or whether it is from the Point B to the Point C. If it is from Point A to Point D the land in controversy is a part of the Trammel .Survey and Cass County has no title to same.

The Trammel Survey was made July 18, 1849, and patented January 17, 1850. After numerous calls the description reaches the northeast corner of the J. H. Rives Survey (Point J). The next call is as follows: “Thence north seventeen hundred and forty-one varas to stake on south boundary of Wilson Robinson 320 acre survey, bearing trees marked DL.” If this call be carried to the south boundary line of the Robinson as it is really located on the ground, it will intersect said line at Point A. However the distance will be increased considerably. The next call is “Thence west four hundred and eighty-four varas to his S. W. corner.”

The original field notes of Cass County School Land were made the same day the Trammel field notes were made, to wit, July 18, 1849. After numerous calls the description reaches the northwest corner of the Hughes Survey (Point E). This corner is called to be in the east line of the Trammel Survey. The next call is' as follows : “Thence north with the same 1344 varas to his northeast corner standing in the south boundary line of 320 acres in the name of Wilson Robinson.” The succeeding call is as follows: “Thence east 860 varas to his southeast corner.” These field notes were corrected May 15, 1871, and the two calls above mentioned were slightly changed so as to read as follows: “Thence north 1183 varas to a stake in south line of 320 acre survey for W. Robinson, a post oak 8 in. dia. brs. S. 21 W. 18 vrs., a hickory S. 15 vrs. Thence E. with S. line of same 854 vrs. to the S. E. corner of said survey.”

It is admitted that the land in controversy was not included within the boundaries of Cass County School Land until February 8, 1886. It was patented February 1, 1887. The resurvey on which patent issued, after numerous calls, reached the S. E. corner of the Wilson Robinson Survey. The pertinent calls are as follows: “Thence west with his south line 1344 varas to his S. W. corner, a stake in E. line of Robert Trammel Survey; thence S. with east line of same 910 varas to corner of same; thence E. 401 varas to another corner of same.”.

It is the contention of plaintiffs that although the east line of the Trammel and the west line of Cass County School Land, as originally surveyed, and as resurveyed in 1871, call to be common and call to intersect the south line of the Wilson Robinson Survey at the Point A, 484 varas from its southwest corner, and although said line is definitely and certainly located on the ground, nevertheless the Trammel E. line should not be extended to the Point A, but should stop at the Point D, which is approximately 1741 varas from the northeast corner of the Rives Survey. Plaintiffs seek to overcome the call for the true south line of the Robinson Survey and stop the east line of the Trammel Survey at the called distance of 1741 varas from the Rives northeast corner upon the following theory: The Trammel Survey was made in 1849. It is claimed 'that when that survey was made the County Map of Cass County showed the Robinson Survey to be “several hundred varas south of its true location on the ground,” and without showing with any degree of certainty just how far south it was on said map, it is arbitrarily assumed to have been 1741 varas north of the Rives northeast corner. In other words, it is plaintiffs’ contention that the call in the Trammel field notes for the south line of the Robinson Survey is a “supposititious or conjectural call, made upon the mistaken belief as to the true, location of the Robinson.” They therefore seek to come within the purview of such cases as State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, and Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009, 1012.

In our opinion, plaintiffs have wholly failed to show cause for allowing call for distance to control over the call for the Wilson Robinson south line as it is admittedly located on the ground. We shall enumerate some of the reasons for this conclusion:

First. In the case of State v. Sullivan, supra [127 Tex. 525, 92 S.W.2d 235] a call for course and distance was permitted to control a call for an adjoinder. That case states correctly the conditions authorizing such a holding. The effect of the decision is that a call for an adjoinder will be rejected, and call for distance will control, if the facts and circumstances show with certainty that the call for an ad-joinder was by mistake. In that case, after a full discussion of the evidence, it was said: “The facts which have been discussed conclusively prove Harper’s mistake as to the location of the Ransom House Remainder survey, and bring the case within the rule of Wilson v. Giraud [111 Tex. 253, 231 S.W. 1074] and the other decisions above cited.” In the present case we think the evidence tending to show that the surveyor made the call for the south line of the Robinson by mistake is practically negligible, when viewed in the light of the overwhelming evidence showing that the call was for the true location of the Robinson south line. So far as we have been able to determine from this record practically the only circumstance to indicate a mistake in the call for the true south line of the Robinson Survey is the fact that the county map of 1848 showed the Robinson some distance south of its true position, and the further circumstance that in 1886 the surveyor called for the east line of the Trammel as running south from the southwest corner of the Robinson Survey. We have not been pointed to any evidence that the surveyor in making the Trammel established any corners at Points B or C or marked any line from B to C or from C to D. There is nothing whatever to show the original footsteps of the surveyor at these places.

Second. The east line of the Trammel and the west line of Cass County School Land are manifestly but one line. Both surveys were made the same day and the school land survey calls for the east line of the Trammel. Both calls intersect the ■south line of the Robinson Survey at the same place. It is apparent, therefore, that if the call for the Robinson in the Trammel field notes was conjectural it was likewise conjectural in the Cass County field notes, and the Cass County Survey also stopped at the Point D. However, the surveyor in the field notes of the Cass County School Land made in 1849 called for a distance of 1344 varas from the northwest corner of the Hughes (Point E) to the south line of the Robinson, and in the field notes of this survey made in 1871 the surveyor called this line to be 1183 varas. This is approximately the correct distance bétween these points as they actually exist on the ground. The surveyor also called for bearing trees at the point of intersection with the Robinson line. According to plaintiffs’ theory he would have intersected the Robinson line at a distance of about 230 varas from the northwest corner of the Hughes, and there is no evidence that the bearing trees called for in the field notes of 1871 were found at this conjectural call (Point D). In addition, if the survey stopped at this supposed point, then the call in the Cass County field notes for east with the south line of the Robinson Survey to its southeast corner would have carried the survey approximately to the Point M on the plat. The next call is for the southwest corner of the Archer, and instead of being 250 varas as in the field notes of 1871, or 350 varas as in the field notes of 1849, the distance would have been either 1160 varas-or 1260 varas. Furthermore, such description would have excluded from the survey practically all of Block No. 3, which would have been wholly inconsistent with the conduct of Cass County in afterwards selling same by general warranty deed, as will hereinafter be shown.

Third. In 1876 Cass County appointed a surveyor to subdivide its school land for the purpose of making sales. The surveyor returned field notes and a plat, which were duly approved by the commissioners’ court of the county and placed of record. This report showed, among others, Block No. 3, which appears to have been made by an actual survey on the ground. It began at the Point F on the north line of the Hughes Survey. It then went to the south line of the Archer Survey (Point G), thence to the east line of the Robinson Survey, and then south with said line to its southeast corner (Point H). The next call was west with the south line of the Robinson 837 varas to the Trammel Survey (Point A). It then called as follows: “Thence south by the east line of Trammel Survey at 900 'varas N. W. corner of the W. B. Hughes Survey.”

By general warranty deed Cass County on November 12, 1890, acting by the county judge and four commissioners, conveyed Block No. 3 to North Texas Land & Timber Company. This deed contained the identical -description of said block as was made by the surveyor in 1876, and called for the east line of the Trammel Survey at the Point A to the Point E. Thereafter, by successive conveyances said Block No. 3 passed to N. Rambo, Jr., who acquired it November 9, 1908.

Fourth. Prior to July 18, 1889, a portion of the Robert Trammel Survey had passed by mesne conveyances to Bridgford & Co. On that date Bridgford & Co. conveyed to Jefferson Lumber Company 351.58 acres of said Trammel Survey, said conveyances, among others, contained the following calls: “Thence with Hughes and Cass County School Land N 3 W 1025 varas to said Robinson south line; thence west with same 484 varas to the S. W. corner of same.” This tract passed to the North Texas Land & Timber Company November 4, 1889, and on November 22, 1904, said company conveyed 102 acres of same to D. Rambo and N. Rambo. This conveyance contained a call for Cass County School Land approximately at the places called for same in the preceding deeds. Rambo testified that he took possession of said land in 1905 and had lived on same from 1907 to date of trial.

Fifth. May 12, 1911, Cass County, through its county judge and county commissioners, gave power of attorney to J. W. Barker and L. Luckel to discover and reduce to possession any unsold portion of the Cass County School Land. Barker appears to have been a surveyor. On January 20, 1912, the county filed suit in trespass to try title against Derious Rambo as defendant, seeking to recover title and possession of the land in controversy in this suit. Rambo answered by general denial and plea of not guilty. It appears that thereafter the county judge of Cass County entered into an agreement with Rambo substantially to the effect that they would send surveyors out on the ground to make an investigation for the purpose of determining whether or not the land in controversy was a part of the Cass County School Land or a part of the Trammel Survey. It further appears that the county surveyor of Cass County representing Rambo and J. W. Barker, holding power of attorney from the county, made some kind of investigation, and on their report to the county judge and the commissioners’ court the cause was on September 18, 1912, dismissed. The order of dismissal was as follows : “This day this cause came on to be heard, and was dismissed by plaintiff at his cost. It is therefore ordered, adjudged and decreed by the Court that this case be dismissed at cost of plaintiff and sureties on his cost bond (naming sureties, one of whom was Barker), for all of which let execution issue.”

The exact nature of the agreement as-disclosed by the testimony is shown in the opinion of the Court of Civil Appeals. There does not appear to have been filed any assignments of error questioning the-fact of an agreement, or claiming that there was an issue of fact as to an agreement. The various assignments are to the effect that the agreement was unauthorized, or void, and that the order of dismissal based thereon did not constitute a judgment upon the merits of the cause. The Court of Civil Appeals held that the order of dismissal constituted in effect a judgment upon the merits of the case and was res-adjudicata.

We do not agree with the Court of Civil Appeals in this respect. As we construe the agreement that was made between the county judge and Rambo, it, in the last analysis, amounted only to an agreement to dismiss the cause, and did not constitute a compromise and settlement of the merits of the cause of action. See L.R.A. 1918B, pp. 526 and 527, and authorities collated. However, we do not think it necessary to discuss the legal effect of such an agreement, and the order of dismissal based thereon, nor the authority of the county judge to make such agreement. The important thing is the fact of the action of the county in filing and dismissing the suit under the circumstances as indicated.

It must be borne in mind that Cass County, in approving and having recorded the report of the surveyor and his plat, prepared in 1876, in a most formal and solemn manner, made the representation that the east line of the Trammel Survey was located on the ground from the Point .A to Point E on the plat. This survey of 1876 was made about five years after the resurvey of Cass County School Land in 1871, the field notes of which call for the east line of the Trammel Survey to be located at the same place as above indicated. It cannot be questioned that the report and plat of 1876 were based upon an actual survey. No doubt the surveyor at that time found the original marks of the surveyor as made in 1871. This representation by the county had been on the records for about sixty years at the time of the trial.

But that is not all. On November 12, 1890, by executing deed to North Texas Lumber & Timber Company, conveying Block No. 3, the county again made the representation that the west line of same (Point A to Point E) was the east line ■of the Trammel Survey. This representation had been on the records almost fifty years when the present suit was filed. Again in 1890, the owners of the Trammel Survey made a conveyance of a part of that survey, calling for its east line to be coincident with the Cass County School Land at the same place. By numerous acts parties on both sides of that location of the line dealt with the lands apparently upon the faith of the representations mentioned.

In light of this background, the action of the county in filing the suit in 1912, and afterwards having same dismissed, after an investigation by the county surveyor and a surveyor representing the county under power of attorney, is entitled to great probative force as a confirmation of the previous representations. Especially is this true in light of the fact that Rambo, who was then living upon the land in controversy, in reliance upon the action of the county in dismissing the suit, continued in possession, making improvements upon the land and paying taxes, for more than twenty years, without his rights being questioned until oil production was obtained in the near vicinity shortly before this suit was filed. Private parties have been es-topped under circumstances far less impelling. A county was held subject to es-toppel in a like situation. Colonial & U. S. Mortgage Co. v. Tubbs, Tex.Civ.App., 45 S.W. 623. We are not required, however, to pass upon the question of whether or not the county can be, or is, estopped, and we expressly do not do so. All of these facts have been enumerated to show that there is no basis for invoking the rule that would make a call for distance predominate over a call for an adjoinder, on the assumption that the call for the ad-joinder was by mistake or by conjecture.

For the reasons above stated, it is our conclusion that the county failed to show by any substantial evidence that the call for the south line of the Robinson Survey in the Trammel field notes was by conjecture and was a mistake, but on the other hand the evidence shows practically conclusively that the call was for the true south line of the Robinson, which is admit-tedly well established on the ground at the Points H A B. Because of this it is our opinion that plaintiffs failed as a matter of law to meet the burden of proof of showing that the call for the Robinson south line was conjectural, and that the Trammel east line stopped at the Point D. The Trammel Survey being senior to Cass County School Land, plaintiffs were not entitled to recover.

There are other propositions relating to the true location of the Davenport Survey, which is claimed to be partly in conflict with the land in controversy. However, the location of the Davenport Survey, under the record in this case, becomes immaterial, as there is no controversy in this case between the owners of the Trammel and the owners of the Davenport. We are therefore not required to discuss those propositions.

For the reasons stated herein, the judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.