author: McClendon, chief justice.

text:
    McMURREY REFINING CO. v. STATE.
    No. 9165.
    Court of Civil Appeals of Texas. Austin.
    March 12, 1941.
    Rehearing Denied April 2, 1941.

      Joe Hill, of Henderson, and Herman Jones and Dan Moody, both of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Tom D. Rowell, Jr., and James P. Hart, Asst. Attys. Gen., for appellee.
   McClendon, chief justice.

This is an appeal by the McMurrey Refining Company from an interlocutory order granting, ex parte, a temporary mandatory injunction commanding and directing appellant “forthwith and immediately (to) exhibit and deliver over to the Railroad Commission of Texas, its agent or agents, each and all,” its record books covering the period December 1, 1938, to December 1, 1939, in connection with the oil business owned and operated by that company; said injunction to remain in full force and effect until the hearing of the cause upon the merits. The suit in which the injunction was issued was one brought in the name of the State by the Railroad Commission through the Attorney General, under authority of Art. 6049e, Sec. 13, V. T.R.C.S. to enforce the visitorial provisions of Art. 6049c, Sec. 5, regarding inspection of records. The verified petition, upon which the injunction was granted, alleges that request for the examination of the records was made on four separate dates (January 21, 27, 28 and 30, 1941), and was refused.

The pertinent portions of Art. 6049c, Sec. 5, read: “Sec. 5. The Commission shall have the power, and it shall be its duty, from time to time to inquire into the production, storage, transportation, refining, reclaiming, treating, marketing or processing of crude petroleum oil and natural gas, and the reasonable market demand therefor, in order to determine whether or not waste exists or is imminent, or whether the oil and gas conservation laws of Texas or the rules, regulations, or orders of the Commission promulgated thereunder are being violated. It shall be the duty of all persons producing, storing, transporting, refining, reclaiming, treating, marketing, or processing crude petroleum oil or natural gas or the products of either to keep in this State accurate records as to the amount produced, stored, transported, refined, reclaimed, treated, marketed or processed by such person;, and as to the source from which such person has produced, obtained or received crude petroleum oil, natural ghs or the products of either, and the disposition made of same. The Commission shall have the power to require all such persons to make and file with the Commission sworn statements or reports as to facts within their knowledge or possession pertaining to the reasonable market demand for crude petroleum oil and to the production, storage, transportation, refining, reclaiming, treating, marketing, or processing of crude petroleum oil or natural gas and products of either, including those facts enumerated herein; and to require any well, lease, refinery, plant, tank or storage, or pipe line, or gathering line, belonging to or under the 'control of any such person to be inspected or gauged by the agents of the Commission whenever and as often and for such periods as ’the Commission may deem necessary; and the Commission and its agents and the Attorney General and his assistants and representatives may likewise examine the books and records of any such person as often as deemed necessary for the purpose of ascertaining the facts concerning the matters and things hereinabove set forth.”

Art. 6049e, Sec. 13, provides that whenever there is a violation or threatened violation of any provision of the conservation laws, the Attorney General shall bring suit in the name of the State “to restrain such person from violating such Statute * * or any part thereof; and in such suit the Commission in the name of the State * * may obtain such injunctions, prohibitory and mandatory, including temporary restraining orders and temporary injunctions, as the facts may-warrant.”

Appellant has briefed the case under seven propositions, the first six of which’ urge the following asserted grounds of invalidity of the trial court’s order in granting the injunction:

1. The verified petition is insufficient to support any temporary injunction in that it does not allege specific facts “showing that such was necessary to prevent actual or imminent substantial injury to Plaintiff for which it is afforded no adequate remedy at law.”

2. The injunction being mandatory and affording all the relief which was sought in the suit upon its merits, it destroyed the status quo, which is not a legitimate function of a temporary injunction.

3. The petition failed to show that a temporary mandatory injunction “was necessary to prevent extreme hardship but did show that a prohibitive injunction or restraining order would have been in all things sufficient to protect Plaintiff pending hearing on the cause.”

4. The temporary mandatory injunction without notice was improper since “it is apparent from Plaintiff’s petition that, in balancing the equities, greater injury will, be suffered by Defendant if the temporary injunction be granted and Defendant ultimately prevails than would be suffered by Plaintiff if the injunction be denied and Plaintiff ultimately prevails.”

5. The petition was insufficient in that there were no “positive allegations showing that such books are in existence and that Defendant has them in its possession and is able to comply with the injunction order prayed for.”

6. The petition was insufficient in that it “failed to allege that the purpose of the requested examination was a reasonable and legal purpose and failed to allege facts, showing the basis of any administrative-determination that such inspection was. necessary.”

We have reached the conclusion (1) that the petition was sufficient to support a temporary mandatory injunction issued after notice and hearing; but that (2) it was not sufficient to warrant such injunction, without notice and hearing, in that no fact was alleged from which the inference could be drawn that the delay incident to notice and hearing would work irreparable injury or “extreme hardship” on the State.

It is quite apparent that the above quoted portion of Art. 6049c, Sec. S, was enacted in the interest of conservation of oil and gas (natural resources of the State) ; and that the visitorial powers regarding inspection of records were granted the Commission in order to enable that body to obtain accurate data upon which to predicate appropriate action in properly discharging the duties enjoined upon it as the agency of the State to administer its conservation laws. The validity of the section was upheld by this court in Culver v. Smith, 74 S.W.2d 754, error refused, wherein it was held that the language of the section imports that the demand for inspection must be a reasonable one, and not arbitrary or capricious.

Generally speaking, it is true that the proper function of a temporary injunction is to preserve the status quo pending final adjudication. It is also true, generally speaking, that a temporary injunction may not be resorted to for obtaining all the relief which is sought in the main suit. These rules, however, are not arbitrary, and therefore yield to exception in appropriate cases.

The State contends that the status to be preserved was the situation created by the statute which imposed the continuing obligation on those engaged in the stated branches of the oil business to make available to the Commission for inspection their books and records whenever reasonably demanded by the Commission for the purposes for which the authority to examine was vested in the Commission. We are strongly inclined to accept this view which is, we think, supported in principle by the holdings in Alpha Petroleum Co. v. Railroad Commission, Tex.Civ.App., 59 S.W.2d 374, error dismissed, and Railroad Commission v. Real, Tex.Civ.App., 80 S.W.2d 494. A closer analogy, however, is presented in that class of cases which hold that the status quo in actions to enforce a mandatory statutory duty of the nature in question “is a condition of action and not of rest,” the disturbance of which lies, not in enjoining mandatorily compliance with it, but in failing or refusing to comply. This character of cases has been repeatedly held to constitute an exception to the general rule that temporary injunction may not be resorted to to obtain all relief sought in the main action; and, such temporary injunction may be mandatory in character, and, where the ■situation otherwise warrants it, may be granted ex parte. This principle has been applied in the following cases, which (except as to the ex parte feature, discussed later) are practically on all fours with the instant case. In Texas Pipe Line Co. v. Burton Drilling Co., Tex.Civ.App., 54 S.W.2d 190, an ex parte temporary mandatory injunction requiring a pipe line to receive and transport oil tendered by plaintiff was upheld. Similarly, an ex parte temporary mandatory injunction requiring a telephone company to give telephone service to those offering to pay the contract price was upheld in Athens Tel. Co. v. Athens, Tex.Civ.App., 163 S.W. 371, error refused. In Dallas v. McElroy, Tex.Civ.App., 254 S.W. 599, 601, a temporary mandatory injunction (issued after notice and hearing, however) requiring the city to issue a building permit was upheld, the court holding: “In cases of willful .and unlawful invasion of a plaintiff’s right, the injury being a continuing one, a preliminary mandatory injunction will issue, it appearing to the court that full and adequate relief at law is not afforded.”

Missouri, K. & T. Ry. v. Seeger, Tex.Civ.App., 175 S.W. 713, upheld a temporary mandatory injunction (issued after notice and hearing) requiring the railway to switch cars to a spur.

In Toledo Ry. v. Pennsylvania Co., C.C., 54 F. 730, 741, 19 L.R.A. 387, Judge Taft, then a United States circuit judge, later Chief Justice of the United States-Supreme Court, granted a temporary mandatory injunction requiring connecting carriers to receive and transport the cars of plaintiff. The injunction was issued after notice and hearing, but meantime a temporary restraining order of like tenor was issued ex parte. We quote from the opinion: “The office of the preliminary injunction is to preserve the status quo until, upon final hearing, the court may grant full relief. Generally this can be accomplished by an injunction prohibitory in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon complainant, which he appeals to a court of equity to protect him from. In such a case courts of equity issue mandatory writs before the case is heard on its merits. Robinson v. Lord Byron, 1 Brown Ch. 588; Lane v. Newdigate, 10 Ves. 192; Hervey v. Smith, 1 Kay & J. 392; Beadel v. Perry, L.R. 3 Eq. 465; London & N. W. Ry. Co. v. Lancashire & Y. Ry. Co., L.R., 4 Eq. 174; Whitecar v. Michenor, 37 N.J. Eq. 6; Broome v. Telephone Co., 42 N.J. Eq. 141, 7 A. 851.”

These citations announce the principles which we think control the appeal. It is only necessary to apply them to the allegations of the petition upon which the injunction was granted.

We think it clear that the statute (Art. 6049c, sec. 5) imposes an imperative continuing duty on all persons coming within its purview to make accessible to the Commission at all reasonable times, their records for inspection when demanded by the Commission in connection with its duties in administering the conservation statutes; and that Art. 6049e, sec. 13, authorizes the issuance of a tern-porary injunction to enforce obedience to the statute. The petition in this case was amply sufficient to support a temporary mandatory injunction issued after notice and hearing. It alleged that appellant was then and had been since about December 1, 1938, engaged “in the oil business in this state and in connection therewith purchases, stores, transports, produces, sells and refines large quantities of oil and gas and the products thereof.” It sets out the substance of the applicable statutes; alleges The necessity for the record examination in connection with the duties of the Commission in administering the conservation laws'; the several demands above noted for such inspection and their refusal; that because of such refusal it is impossible for the Commission to comply with the laws of the State; that unless mandatorily enjoined appellant will continue its refusal “to the irreparable damage and injury of plaintiff, for which plaintiff herein has no adequate remedy at law.”

With reference to the sufficiency of the allegations of irreparable injury, or, as it is sometimes referred to, “extreme hardship,” we think we may fairly take judicial knowledge of the fact that the delay incident to obtaining a final decision on the merits with the right of appeal with supersedeas would constitute such an impediment to a proper administration of the conservation laws as would amount to an irreparable injury or “extreme hardship” in the performance of an outstanding governmental function — that of conserving one of the most important natural resources of the State. We hold it was not necessary, therefore, to allege a specific factual situation demonstrating such irreparable injury; but, on the contrary, the above general allegation was sufficient in connection with the 'other facts alleged.

As regards the fifth proposition, it is only necessary to say that it was , not requisite that appellee allege that appellant actually kept the required records, that they were then in existence and that appellant was able to produce them. The petition did allege the conduct of the business during the period and the statutory requirement to keep the records. Nor do we think it necessary to allege specifically that the requested examination “was a reasonable and legal purpose”; however, such purpose is implicit in the allegations that the examination was essential to a proper exercise of the administrative duties in connection with the conservation laws and that the demands were made in the performance of such duties.

We come now to consider the sufficiency of the allegations to support an ex parte mandatory injunction. The general rule applicable is that the petition must allege a state of facts sufficient to show, not only that irreparable injury will result pending a hearing on the merits, but that the delay incident to notice and hearing of the application for temporary injunction will work irreparable injury. “Where the order is sought without a hearing, the petition must state facts showing an immediate and pressing necessity for dispensing with previous notice and hearing, especially if a mandatory writ be sought.” 24 Tex.Jur. p. 221, § 166. There is no allegation of fact supporting such irreparable injury; nor do we find anything in the nature of the subject that would warrant the necessary conclusion that the delay incident to the brief period required for notice and hearing, would work irreparable injury. We believe the above decisions which uphold temporary mandatory injunctions issued ex parte, are distinguishable in their facts from the instant case in this particular regard. Appellee cites in this connection the case of State v. Curtis, 100 S.W.2d 735, decided by this court, as directly in point. Manifestly such is not the case. The appeal in that case was from an order dissolving a temporary mandatory injunction, issued ex parte. The injunction was against the receiver ,of oil refineries under appointment of a district court in East Texas. The receiver moved to dissolve the injunction upon the sole ground that the trial court (district court of Travis County) was without jurisdiction to make the order, in that it constituted an interference with the jurisdiction 'of the court appointing the receiver. There was no traverse of any factual allegation in the petition. The trial court sustained the motion to dissolve and the appeal was from the order of dissolution to this court. It is expressly stated in our opinion that the correctness of the receiver’s contention that the court was without jurisdiction to enter the in-junctive order “is the only issue the appeal presents.” Upon holding that the court had jurisdiction in the matter, we set aside the order dissolving the injunction, and reinstated the injunction. Manifestly, the decision there, limited as it expressly.is to the question of jurisdiction, has no hearing upon any of the questions presented in this case.

Appellant’s seventh proposition complains of that portion of the order which requires it to deliver possession of certain of its books and records to the Commission or its agent for the reason that there is no provision of law requiring such delivery of possession. This point we think is well taken. The statute in question only provides for an “examination” of the books and records.

The order appealed from is set aside, the ex parte temporary injunction dissolved and the cause remanded to the trial court for further proceedings. This order, however, is without prejudice to the appellee’s right to seek any further relief in the trial court not inconsistent with the holdings in this opinion.

Temporary injunction dissolved; cause remanded.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    PROVIDENT LIFE & ACC. INS. CO. v. SIMS.
    No. 3808.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 25, 1941.
    Rehearing Denied March 12, 1941.
    Arthur J. Thompson and A. A. Seale, both of Nacogdoches, for appellant.
    P. A. Sanders, of Nacogdoches, for ap-pellee.
   WALKER, Chief Justice.

This appeal was prosecuted by appellant, Provident' Life & Accident Insurance Company, from the judgment of the County Court of Nacogdoches county in favor of appellee, Roscoe B. Sims, for disability benefits for nine months at $40 per month, with interest and twelve percent, statutory damages, claimed under appellant’s policy of accident insurance issued to appellee on May 1, 1939. We give the following material provisions of the policy :

“Provident
“Life and Accident
“Insurance Company
“In Consideration of the payment of $6.00 on or before the delivery hereof and of the statements and agreements contained in the application for this policy, a copy of which is endorsed hereon and made a part hereof:
“Does Hereby Insure Roscoe B. Sims
"(hereinafter called the Insured), the person described in the copy of the application, classed by the Company as r Logger for the period from noon of May 1 1939, until noon of June 1 1939, Standard Time, at the place where the insured resides, and subject to all of the provisions, conditions and limitations contained herein or endorsed hereon.
“The Insuring Clause.
“Against — (1) The effects re-suiting directly and exclusively of all other causes, from Bodily Injury sustained during the life of this policy solely through external, violent and accidental means of which there are external marks on the body of the Insured, hereinafter called ‘such injury’; * * ⅜
“Part 1.
“Section (a) — The Monthly Indemnity for Accident or Sickness, is Forty $40.00 * * *
“Part 3. Monthly Accident Indemnity
“Sec. (a) If ‘such injury’ shall from the date of the accident totally, solely, and continuously disable and prevent the Insured from performing each and every .duty pertaining to any business or occupation, the Company will pay monthly indemnity, for such period' of total disability (not exceeding twelve consecutive months) at the rate specified in Section (a) of Part 1. * * *
“Part IS. Not Covered
“This policy does not cover suicide or any attempt thereat, sane or insane, or hernia (except that in the event of disability or loss resulting from hernia or operation therefor, the company will pay the monthly indemnity provided in Part 1 for the period of such disability, not exceeding fourteen days).”

It is conceded that .appellee, after the policy had been delivered and was in full force and effect, suffered a hernia within the coverage of the policy, and only a. hernia; appellant makes no attack upon the verdict of the jury fixing the ter,m of disability at nine months, the only issue-sent to the jury.

The trial court overruled appellant’s motion for an instructed verdict, that on the face of the policy it was liable for disability compensation for only fourteen days at the rate of $40 per month; and that ruling is assigned as error. The ruling of the court was not error. Subject to all the provisions, conditions and limitations of its policy, appellant insured appellee against the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of the policy solely through external violent and accidental means. As stated above, it is conceded that appellee suffered the hernia within this coverage. By the provisions of the policy, appellant was bound to pay ap-pellee a monthly indemnity of $40 per month during the duration of his disability resulting from hernia, not to exceed twelve consecutive months, on the condition that, if “such injury” shall from the date of the accident totally, solely, and continuously disable and prevent appellee from performing each and every duty pertaining to any business or occupation. Appellant concedes that appellee’s disability continued for nine months within this condition. So, on the conditions of the policy thus reviewed, appellee was entitled to his compensation for the nine months.

But appellant contends that Part 15 limited appellee’s coverage for hernia to fourteen days; Part 15 expressly so provides. Thus, we have a direct conflict between the coverage provided by Parts 1 and 3 and the coverage provided by Part 15. Part 15 does not fall within “the conditions and limitations” provided for in the first paragraph of the policy, but is a withdrawal of hernia from the coverage at the rate of $40 per month. This conflict creates an uncertainty and ambiguity in the construction of the policy, and invokes the following rule: “It is agreed that if an insurance contract is so drawn as to be equivocal, uncertain, or ambiguous, and to require interpretation because fairly susceptible of two or more different, but sensible and reasonable, constructions, the one will be adopted which, if consistent with 'the objects of the insurance, is most favorable to the insured.” Couch’s Cyclopedia of Insurance Law, Vol. 1, 392, par. 188.

The facts of this case bring it within the rule announced by this court in Norwood v. Washington Fidelity Nat. Ins. Co., Tex.Civ.App., 16 S.W.2d 842.

Appellant would distinguish the Nor-wood case on the ground that “in the instant case the policy does not exclude hernia entirely, but limits the payment to be made in case of injuries resulting from ihernia.” The distinction is not controlling. In the case at bar, appellant in Parts 1 and 3 contracted to pay a monthly indemnity of $40 from disability resulting from Ihernia; in Part 15 appellant seeks to limit the disability to fourteen days, thereby cre-liting the conflict which invokes the general rule cited above. Again, appellant Ivould distinguish the Norwood case on the I'round that “no limitation was placed on Ihe insurance clause.” The court’s opinion in that case does not reflect the limitation on the insurance clause, but in writ-lig this opinion we have the policy in that Base before us, and it provides:

I “In Consideration of the application for Biis policy, which is hereby referred to and Bade a part of this contract, and in further Bmsideration of the payment in advance K the premium stated in schedule below, Hi or before Monday each week, the Wash-Hgto'n Fidelity- National Insurance Com-Hny, subject to the provisions hereof, will Hy to the beneficiary * * *

HThe authorities cited by appellant, as we Hderstand them, are not in point on the H:ts of this case. In Century Indemnity v. Carroll, 126 Tex. 214, 86 S.W.2d 83, the Commission of Appeals held that Hxacting the tooth was the accidental Hans of causing the death of Mrs. Car-Hl, and being external the violence fell ^ftiin the coverage of the policy. Recov-H. was denied in that case, not on the ^fcry that that particular injury was not ^Hiin the coverage of the policy, but on ■ conclusion that the injury, though cov-^Bl generally by the policy, was received ^|er conditions which denied liability. The principle of law which distinguishes Century Indemnity Co. v. Carroll also distinguishes the other authorities cited by appellant. National Life & Accident Ins. Co. v. De Lopez, Tex.Civ.App., 207 S.W. 160; Flint v. Travelers’ Ins. Co., Tex.Civ.App., 43 S.W. 1079; Southern Surety Co. v. Hartman, Tex.Civ.App., 206 S.W. 379; Illinois Bankers’ Life Ass’n v. Floyd, Tex.Com.App., 222 S.W.2d 967; Travelers’ Ins. Co. v. Harris, Tex.Com.App., 212 S.W. 933.

Appellant assigns error against the judgment of the court awarding ap-pellee twelve percent damages on the principal amount of $360. Under Article 4736, R.C.S., 1925, Vernon’s Ann.Civ.St. art. 4736, appellee rested under the burden of sustaining by proof that appellant failed to pay the compensation provided by the policy “within thirty days after demand therefor.” We find no evidence in the record of any “demand” made upon appellant by appellee. The evidence goes no further than to show that appellant, on the 8th day of May, 1940, tendered appellee its check for the sum of $18.66 “in full settlement of any and all claims” growing out of his hernia, and that under his instructions his attorney returned this check to appellant. Article 4736 being highly penal must be strictly construed, and strict compliance with its provisions must be made by the claimant in order to invoke the penalty. General American Life Ins. Co. v. Martin, Tex.Civ.App., 137 S.W.2d 139; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093. It has been held that the filing of the proof of loss does not constitute a “demand” within the terms of the statute. Commonwealth Casualty Co. v. Thompson, Tex.Civ.App., 38 S.W.2d 351. And that the filing of the suit does not constitute the ■ statutory “demand”. American Nat. Ins. Co. v. Shelton, Tex.Civ.App., 83 S.W.2d 698.

It follows that the judgment of the lower court should be affirmed in part, and in part reversed and remanded, and it is accordingly so ordered.

Affirmed in part and in part reversed and remanded.


text:
    PATTERSON et ux. v. PEEL.
    No. 3809.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1941.
    Rehearing Denied April 2, 1941.
    C. O. Marsh, J. P. Rogge, and McComb & Davis, all of Conroe, for appellants.
    Crawford & Crawford, of Conroe, fori appellee. I
   WALKER, Chief Justice.

This suit is an action in trespass to trjl title by appellee, W. E. Peel, against ápl pellants, Paul Patterson and his wife, til recover the title and possession of a tracl of land described by metes and bounds al containing S22.S acres of land and being afl of the Evantha Scurry survey in MontB gomery County; appellee also plead thB issues of five and ten years’ limitatioiB Vernon’s Ann.Civ.St. Arts. 5509, 55HB Appellants answered by general demurreB general denial, and by pleas of not guillB and disclaimer. On trial to a jury, jud; ment was for appellee for the title and po session of the land sued for, with writ of possession, from which appellants have prosecuted their appeal to this court.

The location of the Scurry survey, with its relation to the adjoining surveys, is clearly shown by the map and plat made a part of the court’s opinion in State et al. v. Humble Oil & Refining Co. et al., Tex.Civ.App., 128 S.W.2d 424, against which writ of error was refused. This map shows that the Scurry survey is bounded on the north by the Bridges, on the east by the Lewis, on the -south by the Little-field and the W. C. R. R. No. 13, and on the west by the Owens (Weeden). Answering special issues in the case at bar, the jury found that the north boundary line of the W. C. R. R. No. 13 did not adjoin the S. B. line of the Bridges, that the N. B. line of the Scurry is the same as the S. B. line of the Bridges; that the N. W. corner of the Littlefield is a common corner with the N. E. corner of the W. C. R. R. No. 13; and that “a line running from the Northwest corner of the Littlefield in a westerly direction would be a common line with said Littlefield and that said line projected would be the north line of the W. C. R. R. Survey No. 13.” We overrule all assignments attacking these propositions, without reviewing the supporting evidence. These findings were essential elements supporting the conclusion of the court in fixing the boundaries and corners of the Bridges, the Littlefield, and the W. C. R. R. No. 13; and the other surveys in issue in State v. Humble Oil & Refining Co., which findings as a matter of law were binding upon all parties to this litigation, on the principles of stare decisis reviewed by us, and held controlling, in McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068. In the McDonald case, this court had before it the very issues on the location of the corners and lines of the Bridges and Littlefield and the W. C. R. R. No. 13 in- controversy in the case at bar.

Appellants introduced in evidence a certain deed to them to a part of the W. C. R. R. Survey No. 13; since no part of the land in controversy lies on that survey, this deed conveyed to appellants no interest in the land claimed by appellee. All propositions based on that deed are overruled.

The Scurry survey was pátented in 1898; the court did not err in overruling appellants’ attacks against the validity of this patent. Appellants had no shadow of title to any part of the Scurry survey by limitation or otherwise. Their possession on the Scurry, if not that of tenants under appellee, was the possession of naked trespassers. The following proposition is announced by 34 Tex.Jur. 260, supported by Greenwood v. McLeary, Tex.Civ.App., 25 S.W. 708: “A trespasser has no standing to assert that a patent to the land was not issued in accordance with the law.”

The following general proposition, supported by the authorities cited, is also announced by 34 Tex.Jur. 256: “A patent passes to the patentee the legal title to the land in so far as the State is concerned. The patentee is invested with a title which is good against all persons who cannot show a superior preexisting right. The patent is subj ect to attack only by the State or by one having a right to the land which is prior or superior to that of the pat-entee.”

The jury found the issue of five years’ limitation in favor of appellee. Appellants advanced the following propositions against this finding: (a) That the land described in appellee’s title papers does not include the land in controversy. This contention is overruled. The land described in appellee’s title papers was the Scurry survey, the very land sued for. (b) That appellee was not in exclusive possession of the land in controversy at any time because T. E. McDonald was also in possession, claiming as a record owner of a portion of W. C. R. R. Survey No. 13. On our theory of the location of the W. C. R. R.-Survey, under the undisputed evidence, no part of the land sued for is on that survey. i

The court did not err in refusing to strike the abstract title furnished appellants by appellee. The point made is that the abstract was not filed until more than six months -after the service of demand, nor was additional time obtained from the court in which to fil? the abstract. Within due time after demand, appellee furnished appellants’ counsel an abstract of his title, which they accepted without objection. Thirty days before the case went to trial, appellee furnished appellants’ counsel an amended abstract of title which contained all the record title to the land in controversy.

Appellants assign -error against the following argument by appellee’s counsel to the jury on the ground “that such argument was upon the effect of their answers to special issues”: “Gentlemen of the Jury: all we ask is that those different surveys remain intact and the property rights as are there will be protected. Now that is fair and honest, and that is all we are asking that this Jury do. And we believe, Gentlemen of the jury, that when you go out in your retirement and understand that Wade made that survey in 1861 and left out an area of 902 varas, that you are going to say that Wade made a mistake, because the Land Office says so; because, Gentlemen of the Jury, that land is there and is the property of W. E. Peel, and all we want is that he be protected in his property rights. I thank you.”

This assignment is overruled. The argument was a proper discussion of the issues submitted by the court’s charge.

We overrule the assignment that the jury first voted that appellee should recover the land, and thereafter answered the special issues “without any consideration of the evidence bearing upon the particular issues, and in a manner calculated by them, designedly, to effectuate their predetermined purpose for W. E. Peel to recover the land in controversy.” We give all the testimony brought forward by appellants in support of this assignment:

“Q. What did Mr. Gayle say to you in reference to submitting that to a vote of the jury — as to Mr. Peel recovering the land? A. When we went in there we elected him foreman, and we all sat around the table, and he brought up this question. Let’s bring up this just to see whether we can agree or not. Does anybody think Mr. Peel is the owner of the land, is the way he asked the question, I believe, and everybody voted.
“Mr. Pleas Parker, called to testify by plaintiff, testified upon cross-examination:
“Q. And you thought that the jury, from all the evidence, should pass upon who should recover the land, and you felt like you had a right to do that, and that is. the way you did it? A. That is the way I done my part of it.”

This evidence does not support the assignment.

On the conclusions discussed, the judgment of the lower court should be affirmed; so we pretermit a discussion of appellants’ assignments against appellee’s record title, and the verdict of the jury on the issue of ten years’ limitation, and the contract of tenancy by appellants to appel-lee, covering the land in controversy.

The judgment of the lower court is in all things affirmed.


author: WALKER, Justice.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. HARRIS.
    No. 3817.
    Court of Civil Appeals of Texas. Beaumont.
    March 7, 1941.
    Rehearing Denied March 19, 1941.

      Sonfield & Sonfield, of Beaumont, for. appellant.
    Sharfstein. Bell, Weinert & Nelson, of Beaumont, for appellee.
   WALKER, Justice.

On the 12th day of July, 1921, appellant, the National Life & Accident Insurance Company, issued to Hyman Harris three policies of insurance in the principal amount of $10,000 the premiums payable in quarterly installments of $89.11 on the 12th day of July, October, January and April of each year. On each of the policies was attached the following rider:

“Total and Permanent Disability.
“In consideration of the continuance of Policy No. 6139 on the life of Hyman Harris, the Company agrees to pay for the Insured the premiums thereafter becoming due thereon, if the Insured, before attaining the age of sixty years, after paying at least one full annual premium and before default in payment of any subsequent premium, shall furnish satisfactory proof to the Company at its Home Office, accepted by it in writing, that he has become wholly and permanently disabled by bodily injury or disease, so that he is and will be for life continuously and wholly prevented thereby from performing any work or transacting any business, for compensation or profit, or from following any gainful occupation. Premiums so paid by the Company shall continue said Policy in force, and all values therein provided shall increase, in the same manner and to the same extent as if paid by the Insured, shall constitute no lien or indebtedness against the Policy, and shall not be deductible from any settlement thereunder. * * * ”

Hyman Harris died in August, 1934, and appellant promptly paid to appellee, Fannie Harris, wife of the deceased and independent executrix of his estate, the principal amounts of the three policies.

This case was tried to the court without a jury, and the following facts from the court’s conclusions of the facts give the nature of the suit: On the 12th day of February, 1931, Hyman Harris became totally and permanently disabled within the coverage of the total and permanent disability rider, which disability continued, until the death of Hyman Harris. By reason of his disability, resulting from disease, Hyman Harris was not able to transact any business, nor to attend to any of his personal business; he was not able to make •the quarterly payments on his life insurance policies. We give the following fact conclusions by the court:

“5. During such period of disability I. G. Harris, son of Hyman Harris, upon the instruction of his father, undertook the management and complete control of all of his father’s affairs and business, both general and personal, and thereafter for the balance of his father’s life had sole and complete control and management thereof to the exclusion of all knowledge and interest on the part of his father, Hyman Harris, the latter being in fact wholly incapable of attending thereto.
“6. In such capacity, I. G. Harris paid out of funds of Hyman Harris to the defendant quarterly premium payments upon premium notices transmitted by defendant and received by I. G. Harris, as of date February 12, 1931, in the amount of $89.11, and the same amount on subsequent premium notices on each of the following dates: May 12, 1931, August 11, 1931, November 12, 1931, February 13, 1932, May 6, i932, August 9, 1932, November 12, 1932, February 10, 1933, May 10, 1933, and Au- • gust 12, 1933, being the total sum of Nine Hundred and Eighty and 2½00 Dollars ($980.21).
“7. From immediately prior to February 12, 1931, all transactions with reference to such insurance policies and the payment of' premium thereon was handled between I. G. Harris and the defendant herein, both with relation to the payment of same and the ultimate discovery of premium waiver by I. G. Harris, upon information from defendant’s agent, Win-gate, the said Hyman Harris having no part nor knowledge of such transactions.
“8. Prior to the furnishing of information to the said I. G. Harris by defendant’s agent, Wingate, immediately before date of November 12, 1933, I. G. Harris had no knowledge of the existence of any type of premium waiver provisions generally in any form of life insurance policy, and first learned of such from defendant’s agent, Wingate.
“9. During the period of payment of premiums by I. G. Harris, the policies of insurance were not in his control or possession but were in a private lock drawer of his father’s safe, from which same were obtained only by breaking into such drawer upon and after being advised by defendant’s agent Wingate that such policies might contain premium waiver provisions.
“10. During the period of payment of premiums by I. G. Harris after the occurrence of disability, because of the serious illness and dangerous physical condition of his father, and the natural delicacy of relationship of father and son, I. G. Plarris refrained from discussing the insurance policies with his father and did not mention same nor the payment of premiums thereon, nor did he feel justified in seeking access thereto prior to learning of the possibility of premium waiver provisions existing and being attached to such policies.
“11. Hyman Harris had no knowledge of the payment of premiums after occurrence of his disability.
“12. Such payments of premiums were made by I. G. Harris without actual knowledge by him or by his father, Hyman Harris of the existence of the premium waiver provisions and the right to waiver of premium thereunder upon the insurance policies of Hyman Harris.
“13. On or immediately prior to November 12, 1933, I. G. Harris furnished satisfactory proof to the defendant at its home office accepted by it in writing, that Hyman Harris immediately prior to February 12, 1931, became wholly and permanently disabled by bodily injury or disease so that he was for life continuously and wholly prevented thereby from performing any work or transacting any business, for compensation or profit, or from following any gainful occupation.
“14. Defendant accepted such proof in writing and waived the payment of premiums commencing November 12, 1933, continuing the policies of insurance in force until death of Hyman Harris in August, 1934.
“IS. Immediately prior to November 12, 1933, I. G. Harris made demand on defendant for refund of premiums paid, commencing February 12, 1931, to and including August 12, 1933, and defendant refused to return such premiums and still refuses to return same upon demand of the legally qualified executrix of the estate of Hyman Harris, the said Mrs. Fannie Harris, plaintiff in this suit.”

On the facts, the court made the following conclusions of law: (a) The furnishing of proofs under the total and permanent disability rider was “a condition subsequent,” to be performed within a reasonable time after the occurrence of the disability; (b) I. G. Harris furnished appellant proof in writing within a reasonable time after the occurrence of the disability; (c) I. G. Harris paid the quarterly premiums under a mistake of fact as to the existence of the premium waiver; appellant suffered no change of position to its prejudice by reason of the fact that I. G. Harris paid the premiums; (d) “Payer received no benefit as a result of making the payment, nor will receive any by return thereof, to which he was not otherwise entitled as a matter of law”; (e) “Proof of disability having been made within a reasonable time, defendant was not, at law or in equity, entitled to the premiums after the occurrence of disability”; and (f) ap-pellee “as the qualified executrix of the will of Hyman Harris, deceased, is entitled to recover such payment of defendant together with interest thereon at the legal rate of 6% per annum from date of receipt of each payment by defendant to date of repayment of such amount to plaintiff”.

This action was by appellee to recover the premiums paid by I. G. Harris, on his father’s account, which matured from February 12, 1931, the date of the beginning of his father’s disability, to November 12, 1933, the date appellant was furnished proof of his father’s disability. The appeal was prosecuted by appellant from the judgment in favor of appellee for the amount of the premiums paid, with interest at six percent per annum, totalling $1,455.61.

Opinion.

On the facts found by the court, the law supports its conclusions of law.

As read by a layman, Minnesota Mutual Life Ins. Co. v. Marshall, 8 Cir., 29 F.2d 977, 978, an ambiguity appears on the face of the total and permanent disability rider, whether the phrase “thereafter becoming due” thereon, refers to the time when the disability began or to the time of the furnishing of the proof of disability. This ambiguity invokes the following rule announced by the Supreme Court of the United States in Bergholm v. Insurance Co., 284 U.S. 489, 52 S.Ct. 230, page 231, 76 L.Ed. 416, page 419: “where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted.” In State Life Ins. Co. v. Barnes, 58 S.W.2d 189, 190, construing a premium waiver, in its legal effects on all fours with the premium waiver now at issue, the Austin Court of Civil Appeals, Mr. Chief Justice McClendon writing the opinion, said, citing the supporting authorities: “While the authorities in other jurisdictions are not in accord upon the question, those in this state, which we think are supported by the better reasoning, hold that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished.”

So, the furnishing of the proof of disability was a condition subsequent, and not a condition precedent. In this connection, we make the following additional quotation from Judge McClendon’s opinion in the Barnes case: “Further comment we think unnecessary, except to add that, if appellant, the author of the language of the policy, had intended to make the notice and proof of liability -a condition precedent to effectiveness of the waiver, apt unequivocal language to that effect was available and should have been employed.”

As supporting our construction of the premium waiver, we cite the following additional authorities: Bank of Commerce & Trust Co. v. Northwestern Nat. Life Ins. Co., 160 Tenn. 551, 26 S.W.2d 135, 68 A.L.R. 1380; Commonwealth Cas. & Ins. Co. v. White, Tex.Civ.App., 142 S.W.2d 633; Garrison v. Great Southern Life Ins. Co., Tex.Civ.App., 72 S.W.2d 692; Missouri State Life Ins. Co. v. LeFevre, Tex.Civ.App., 10 S.W.2d 267; National Standard Life Ins. Co. v. Smith, Tex.Civ.App., 75 S.W.2d 1102; Pan-American Life Ins. Co. v. Welsh, Tex.Civ.App., 74 S.W.2d 408; Southland Life Ins. Co. v. Gatewood, Tex.Civ.App., 115 S.W.2d 723, affirmed, 135 Tex. 177, 141 S.W.2d 588, Com.App. opinion adopted by Sup.Ct.

Appellant has cited many authorities in support of its proposition that the furnishing of the proof of disability was a condition precedent. These authorities may be distinguished on the following grounds: (1) Contrary to the construction by the Texas courts of premium waivers, certain of appellant’s authorities seem to hold that all conditions requiring the furnishing of proof should be construed as conditions precedent. See Goldman v. New York Life Ins. Co., 115 N.J.Eq. 535, 171 A. 541, and the authorities cited therein; Courson v. New York Life Ins. Co., 295 Pa. 518, 145 A. 530; Yohalem v. Columbian Nat. Ins. Co., 136 Misc. 748, 240 N.Y.S. 666; Epstein v. Mutual Life Ins. Co., 143 Misc. 587, 257 N.Y.S. 772; Franklin Life Ins. Co. v. Fisher, 164 Okl. 193, 23 P.2d 151. (2)In certain other cases the language of the premium waiver makes clear the intent of the contracting parties that the furnishing of proof of disability should be a condition precedent. In Brotherhood of Ry. Trainmen v. Dee, 101 Tex. 597, 111 S.W. 396, 398, the policy contained the following provision: “But such written notice shall be a condition precedent to the brother’s rights under this section.”

See also Burns v. American Nat. Ins. Co., Tex.Com.App., 280 S.W. 762, 764; Commercial Union Assur. Co. v. Preston, 115 Tex. 351, 282 S.W. 563, 45 A.L.R. 1016; Scottish Union & Nat. Ins. Co. v. Clancy, 71 Tex. 5, 8 S.W. 630; Southern Surety Co. v. Aronson, Tex.Civ.App., 5 S.W.2d 629; Bank Savings Life Ins. Co. v. Milan, Tex.Civ.App., 70 S.W.2d 294; Jefferson Standard Life Ins. Co. v. Williams, Tex.Civ.App., 62 S.W.2d 661; Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 471, 115 A.L.R. 1301; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 213. (3) In other cases no proof was furnished prior to the trial of the case or proof was not duly furnished: Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 471, 115 A.L.R. 1301; Bank Savings Life Ins. Co. v. Milan, Tex.Civ.App., 70 S.W.2d 294, Jefferson Standard Life Ins. Co. v. Williams, Tex.Civ.App., 62 S.W.2d 661. (4) A more liberal construction of the premium waiver rider, as against the construction of the disability benefit provision of a health and accident policy. This distinction is illustrated by State Life Ins. Co. of Indianapolis v. Parks, 89 S.W.2d 289, 290, where the Amarillo Court of Civil Appeals, distinguishing the Barnes Case, said: “Waiver of premium payments and forfeiture of the policy were the controlling questions, not liability, as here, for monthly benefit payments to one still living upon receipt of proof of disability.”

See also State Life Ins. Co., etc. v. Parry, Tex.Civ.App., 88 S.W.2d 763.

Against the court’s fact conclusions sustaining the furnishing of proof of disability, under the total and permanent disability rider, appellant advances the following propositions:

(1) The disability began on February 1, 1931, but no proof of disability was furnished until immediately prior to November 12, 1933, thirty-three months delay. Appellant’s proposition is that “such delay in furnishing such proof of disability is unreasonable as a matter of law.” This contention is denied. The evidence raised the issue, found by the court in its coitclu-sions of fact, that Hyman Harris, from and after the 12th day of December, 1931, was totally and permanently disabled to attend to any business whatever. Neither appel-lee nor her son, I. G. Harris, who attended to his father’s furniture business subsequent to February 12, 1931, knew that these premium waivers had been attached to his father’s policies of insurance, and there was no circumstance in the record giving him notice of these premium waivers. In fact, he did not know that life insurance policies could carry premium waivers; his first knowledge of such premium waivers was given to him by appellant’s own agent, at the time stated by the court in its fact conclusions. The authorities cited by appellant in support of this proposition are not in point. In State Life Ins. Co. of Indianapolis v. Parks, Tex.Civ.App., 89 S. W.2d 289, 290, the court said: “Here the appellee was able to go about and attend to some business.”

State Life Ins. Co. of Indianapolis v. Parry, supra, Connecticut Gen. Life Ins. Co. v. Warner, Tex.Civ.App., 94 S.W.2d 514, Lewis v. Connecticut Gen. Life Ins. Co., Tex.Civ.App., 94 S.W.2d 499, were cases where judgments were sought for the benefits of the policies, and not on the issue of premium waiver; these cases fall within the fourth ground of distinction discussed above.

(2) Appellant asserts that there was no evidence that I. G. Harris acted for his father, the insured, “in any capacity other than as a mere volunteer in making such payments or that there was any mistake of fact on the part of insured.” This contention is overruled. I. G. Harris testified (Q. & A. reduced to narrative) :

“I recall my father’s physical condition during the beginning of the year 1931. All the last of 1930 he was still getting worse, stayed in bed more often than he was up; from the beginning of ’31 he was in bed almost, I would say, three weeks out of every four weeks. My father did nothing around the store from that period on. He became inactive in the store from the last part of 1930. From that time on I was in active charge of the store (Hyman Harris was in the furniture business in Beaumont prior to his disability). My father came to the store at intervals. We got him to -come to the store to get his mind off the pains he was in, trying to build up his resistance; trying to make him think he was better and getting along better. We didn’t discuss with him business matters of any kind. He wouldn’t stand for it; he wouldn’t listen; he would just stand around in the store and look, and then go to another place. He made no suggestions to me about buying for the store or in relation to any other business of the store. We would tell him sometimes something, but he would just say ‘Use your own judgment’; wouldn’t try to make any suggestions. From the time my father became inactive in the latter part of 1930 until he died he did no labor whatever. I signed all the checks and did all the buying and everything else that he used to do. When he first got sick, he gave me instructions with reference to his business; he told me to carry the business on like he was, and take care of all the bills that came due and payable, sign the checks and take care of all bills. He never did check up with me to see whether I was following his instructions or not; he left it all in my charge. During the time I was in the charge of my father’s business I had knowledge of the premium notices on these insurance policies. The only thing I can tell you is that when the premiums came due through the mail, I put them on my desk and at the time they were due I paid them. I paid these premiums by check, and these checks were charged back to my dad’s personal account. My dad did not discuss these policies with me. Dad was very close mouthed about his own personal business, and, of course, being his son, I never did delve into his own personal business; he was awful close mouthed about it; I never did ask him anything about it, and he didn’t tell me anything about it. During the time I looked after my father’s business, the policies were at that time in a drawer in the safe, that was his own personal drawer, that he had his own key to, and no one ever went into that drawer — not even myself. During the time I was paying these premiums I had not examined the policies; the policies were my father’s personal matters and I did not go into them. I did not make any attempt to discuss his policies with him. Dad was too sick a man to bring up anything about life insurance with him while he was sick. I wouldn’t dare do anything like, that, in the condition he was in.”

(3) This being an action to recover premiums voluntarily paid by I. G. Harris, acting for his father, appellant asserts : “Where a voluntary payment is made under a mistake of fact, it is not recoverable back where the payee is misled or prejudiced by the mistake.”

Appellant was in no way misled or prejudiced by the fact that I. G. Harris paid the premiums on his father’s insurance policies.

(4) We give appellant’s seventh proposition: “It is reversible error for a court before whom a cause is tried without the intervention of a jury to refuse to incorporate in its findings of fact all of the material issues and ultimate facts where, by written motion seasonably made, the omitted material issues and ultimate facts are brought to its attention.”

Under this proposition, appellant contends that the court erred in refusing to make the following fact conclusions: “I find as a fact that from prior to February 12, 1931, until the death of Hyman Harris, he retained full management and control of his personal affairs and business and that the authority of I. G. Harris, the son of Hyman Harris, to attend to and look after his father’s business was confined strictly and solely to the management of the furniture store and business, the only business in which Hyman Harris was interested.”

“I find as a fact that from prior to February 12, 1931, until shortly after October 12, 1933, Hyman Harris was rational, had a good memory and was mentally competent to attend to his personal business.”

There is in the. record a statement of facts. A refusal of the court to-make the findings requested by appellant in no way prejudiced its right to complain of the insufficiency of the evidence to support the findings actually made by the court. In the case at bar, the court filed conclusions of fact and law, which distinguishes this case from the authorities cited by appellant. The, court did not commit prejudical error in refusing to make findings on these issues. Wandry v. Williams, 103 Tex. 91, 124 S.W. 85; Galveston, H. & S. A. Ry. Co. v. Stewart & Threadgill, Tex.Com.App., 257 S.W. 526, 528; Barnett v. Barnett, Tex.Civ.App., 98 S.W.2d 215, 216. It is also our construction of the evidence that the court was justified in refusing to make these fact findings.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: PRICE, Chief Justice.

text:
    COLLIER v. PERRY et al.
    No. 3977.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1941.
    Rehearing Denied March 29, 1941.
    Second Rehearing Denied March 27, 1941.

      Leon A. Kotosky and D. J. Smith, both of El Paso, for appellant.
    Lea & Edwards, of El Paso, for appel-lees.
   PRICE, Chief Justice.

This is an appeal from the District Court of El Paso County, Texas, in an action which sought the recovery of a small tract of land in El Paso County. Betty Collier, as plaintiff, sought recovery thereof from Arthur Perry, Mary Perry, and James Arthur Perry, as defendants. The trial was to the court, and judgment was rendered in favor of the defendants, from which judgment plaintiff has perfected this appeal. On demand of plaintiff the court filed findings of fact and conclusions of law.

The pleadings may be summarized by stating that they are in all respects sufficient to present the questions hereinafter discussed.

As reflected by the pleadings and evidence,, the basis of plaintiff’s claim to the land was, first, a judgment in the sum of $10,000 rendered by the District Court against Mary Perry, one of the defendants here, and an execution issuing thereon, the sheriff’s return on the execution showing a sale of the property to the plaintiff here.

Defendant James Arthur Perry claimed the property under and by virtue .of a deed from defendants Arthur Perry and Mary Perry, who were at all relevant times husband and wife and the parents of James Arthur Perry. This deed was executed and delivered on the 3rd day of June, 1936.

Plaintiff assailed this deed as being a voluntary conveyance within the meaning of Article 3997, R.S.1925, and under Article 3996, Revised Statutes, 1925, Vernon’s Ann. Civ.St. arts. 3996, 3997, as being made to hinder, delay and defraud the creditors of defendants Mr. and Mrs. Perry.

Defendant James Arthur Perry pleaded,in addition to not guilty, that on the date of the conveyance to him the property was the homestead of his grantors.

Betty Collier, plaintiff here, as plaintiff, on the 1st day of June, 1937, filed suit in the District Court of El Paso County seeking to recover damages against Mr. and Mrs. Perry for the alleged alienation of her husband’s affections by Mrs. Perry. The judgment before mentioned for the sum of $10,000 in favor of Mrs. Collier was rendered on the 14th day of December, 1937.

Plaintiff’s principal ground of attack on the conveyance was that at the time of the execution thereof she was a creditor of Mary Perry and her' husband, Arthur Perry, and that same, as to her, was void.

It seems well established that one having a cause of action for unliquidated demand, such as tort, is a creditor within the meaning of Article 3997. Colby v. McClendon, Tex.Civ.App., 116 S.W.2d 505.

It likewise seems well established that said article applies to creditors.having valid claims on -the date of the conveyance and not as to subsequent creditors. Clement v. First Nat. Bank, 115 Tex. 342, 282 S.W. 558; Shaw v. Head, Tex.Civ.App., 55 S.W.2d 190.

The trial court found, and the evidence seems to have been undisputed, that the conveyance was a voluntary conveyance.

The question on this branch of the case is narrowed to a determination of whether or not Mrs. Collier, plaintiff here, was a creditor on the date of the conveyance.

The trial court; among other findings, made the following:

"3. That during the later part of the year 1934 the defendant Mary Perry, being lonely because of the long absences of her •own husband, became interested in Ooly Collier, the husband of plaintiff Betty Collier. That at various times since said year 1934, up to June 3rd, 1936, the defendant Mary Perry and said Ooly Collier met, and on one occasion they were in the City of Juarez, Republic of Mexico, together; that on more than one occasion the defendant Mary Perry came to the field where Ooly Collier, the husband of Betty Collier, was working and attracted the attention of the said Ooly Collier, and met with him. That as a result of this conduct on the part of the defendant Mary Perry and said Ooly Collier, and prior to June 3rd, 1936, the said Ooly Collier neglected his crops, particularly in the spring and early summer of 1936, and indulged in intoxicating liquors, and also prior to June 3rd, 1936 and because of the conduct of the defendant. Mary Perry and Ooly Collier, the said' Ooly Collier quarreled with his wife, Betty Collier. That the plaintiff Betty Collier and her husband continued to live together in the same home until November of 1936, and that except as to his drinking, his quarreling, and his neglect' of the crops, the relationship of husband and wife including society, companionship, and services, continued to exist between the plaintiff Betty Collier and her husband until after June 3rd, 1936, and probably to on or about the time of their separation in November of 1936.
“4. That the course of conduct began by Mary Perry in the year 1934 resulted in the separation of the plaintiff Betty Collier and her husband in November of 1936, and also resulted, together with other acts and conduct subsequent to June 3rd, 1936, in the filing of a petition in cause No. 44684 in the Forty-first District Court on the first day of June, 1937, and in the obtaining of a judgment by Betty Collier against the defendants Arthur Perry and Mary Perry in the sum of $10,000.00 on the 14th day of December, 1937; and thereafter execution was issued in said cause, levied upon the property involved in this lawsuit on the 12th day of February, 1938, and purchased by the plaintiff at sheriff’s sale on the 15th day of April, 1938.”
“Conclusions of Law
“1. A cause of action does not lie for attempted alienation of affections. The evidence in this cause is wholly insufficient to prove an alienation of Ooly Collier’s affection for his wife, the plaintiff Betty .Collier, as of June 3rd, 1936. Potter v. Howser, 104 Neb. 367, 177 N.W. 169. Inasmuch as plaintiff had no cause of action against the defendant Mary Perry and Arthur Perry on June 3rd, 1936, the date of the conveyance from them to their minor son James Arthur Perry, the said Betty Collier, plaintiff in this cause, was not a prior creditor of said Mary Perry and Arthur Perry within the meaning of Art. 3997, Revised Civil Statutes of 1925 [Vernon’s Ann.Civ.St. art. 3997]. ' * ⅜
“3. The property conveyed by the defendants Mary Perry and Arthur Perry to their minor son James Arthur Perry on June 3rd, 1936, was not at that time the homestead of the defendants Mary and Arthur Perry, but had long prior thereto been abandoned, having been appropriated to an inconsistent use. Archer v. Youngblood [Tex.Civ.App.], 129 S.W.2d 382, writ of error refused.”

It is clear that the finding was that plaintiff here was not a prior creditor of defendants Mary and Arthur Perry within the meaning of said Article 3997. These findings are attacked by the appellant, and it is asserted that same were made from a misapprehension on the part of the trial court of the law governing.

It is established by the judgment, the foundation of plaintiff’s claim to title, that there was a grave and serious infraction by defendant Mrs. Perry of the rights of the plaintiff. The judgment does not establish when the cause of action upon which it was rendered arose, further than, of course, it was sometime prior to the filing of the petition therein on June 1, 1937. In the action for alienation of affections, as in any other cause of action, there must be a breach of legal duty and damages resulting to the plaintiff therefrom. The gist of the action is the intentional or purposeful alienation of the affections of one spouse from the other. The damage is for the loss of consortium. To establish a cause of action it is not necessary that there be a loss of all elements included in that term. But any substantial impairment thereof, through unjustified intentional conduct, creates a cause of action in favor of the spouse damaged against the offender in this respect. Kahn v. Grothaus, Tex.Civ.App., 104 S.W.2d 932.

The trial court did find that an attempted alienation of affection, in and of itself, does not give rise to a cause of action. This, we think, is correct in the event that as a result of such attempt there is no loss .of affection or consortium. A misrepresentation which does not deceive, for instance, is not actionable fraud.

As we have stated, the question here is as to when plaintiff’s cause-of action accrued against Mrs. Perry. That Mrs. Perry and plaintiff’s husband were acquainted prior to the conveyance in question is settled by the findings of the trial court. Their acquaintance began as early as 1934. From time to time from that date to June 3, 1936, they saw each other; on more than one occasion Mrs. Perry came to the field where plaintiff’s husband was working and met him; prior to June 3, 1936, plaintiff’s husband neglected his crops and indulged in intoxicating liquors; this was on account of the conduct of Mrs. Perry and plaintiff’s husband; that as a result of this conduct, also, plaintiff’s husband quarreled with her.

To our mind the findings of the court do not necessarily show designed action to alienate the affections of plaintiff’s husband prior to June 3,. 1936. There is no finding by the trial court that such was the case. It might be that an inference of wrong-doing might have been drawn by the trial court, but same was not so drawn by the court. A husband’s attitude toward another woman may cause bickerings and quarrels with his wife, but for the wife to have a cause of action against the woman, the subject of the disagreement, her action must be wrongful. For an action to be wrongful in such a case, it must be action designed to alienate the affections of the husband in question. It is true that the action may be so flagrant that in and of itself it evidences the intent thereof. Criminal conversation is an action somewhat akin to an action for alienation, and is in and of itself a legal wrong against the innocent spouse. To our mind, the evidence is not sufficient to indisputably evidence that Mrs. Perry, from the moment of acquaintance, designed to alienate the affection of plaintiff’s husband.

There is a line of cases holding that where one’s conduct is clearly legally justified, that subsequent wrongful conduct may render him a trespasser ab initio. An illustration of this is to be found where an officer seizes property under a valid writ, but subsequently diverts same to his own use or any other unlawful purpose. American Mortgage Corp. v. Wyman, Tex.Civ.App., 41 S.W.2d 270; and authorities there cited. There is this to -be said in such a case: The effect on the plaintiff is the same as though there had been an original wrongful seizure of the property. Now, granted that there be some analogy between the action of trespass and this action, in our opinion the cause of action could not arise until there was wrongful conduct on the part of the defendant Mrs. Perry — wrongful conduct meaning action designed to alienate the affections of Mrs. Collier’s husband. The burden was on plaintiff to show that she was a creditor of Mrs. Perry prior to the date of the conveyance. At best, the question was one of fact. The finding of the trial court was against the plaintiff bn this issue. Such finding is final here.

We do not think that the trial court held," and we do not so hold, that a complete loss of all the elements involved in the term “consortium” is necessary to maintain an action for alienation of affections. In our opinion, an action may be maintained for the loss or impairment of any of the elements involved in that term. What is held is that, in order for one, the holder of a tort claim, to assail a voluntary conveyance, it must be shown that such claim was in existence prior to such conveyance. The evidence here is not of sufficient weight to show beyond an issue that the conduct of the defendant Mrs. Perry was wrongful prior to June 3, 1936. The assignment is overruled.

It is contended that the conveyance was made with the intent to hinder, delay or defraud creditors. At the date thereof Mr. and Mrs. Perry owed some small amount, payable in installments, on some sort of household appliances. This has been subsequently paid. There was likewise a judgment against her in the sum of about two hundred dollars. This judgment was appealed from on a supersedeas bond and reversed and rendered by the Supreme Court. There was also a debt to the Peterson Lumber Company secured by an assignment of the rents on the premises in question and which was subsequently paid. The trial court found against the plaintiff on this issue and the evidence sustains such finding.

Defendant James Arthur Perry asserts that the judgment is likewise sustainable on the theory that the property in controversy at the time of the conveyance was the homestead of his grantors. It is elementary that a voluntary conveyance of exempt property is good as to all creditors not having a specific lien thereon. The trial court found, on the date of the levy of the execution in question, the property in controversy here was not the homestead of Mr. and Mrs. Perry. Specifically, it was found that from the time of the acquisition of the property until 1931 it was their homestead; that in the year 1931 the defendants built a home on an adjacent tract and occupied same as their home; that in 1931 the improvements on the tract in question were changed so as to render same suitable for a store and filling station, and same was leased for a period of three years; that in 1933 the property was leased for commercial purposes for a term of five years; that there is no fence or other mark on the ground separating the two tracts, and that at all times the defendants have cultivated a substantial portion of both tracts and have used same for their horse, cow and chickens and turkeys; that for the years 1933, 1934 and 1935 Mr. and Mrs. Perry claimed and were allowed tax exemption on the entire property as their homestead.

The trial court in its conclusions of law cites the case of Archer v. Youngblood, Tex.Civ.App., 129 S.W.2d 382, as supporting the holding that this property had, prior do June 3, 1936, been abandoned by Mr. and Mrs. Perry as their homestead.

In that case we think an urban homestead was involved. So, in the case of Wynne v. Hudson, 66 Tex. 1, 17 S.W. 110. Here, there is no finding as to whether the homestead is rural or urban. There are many indications in the evidence that same was rural in character. There were approximately six acres in the combined tracts. Other than the renting of the combined store and filling station on the tract in question, the use made thereof was rural; alfalfa was grown and harvested by defendant Mrs. Perry on most of the portion of the tract in question here at all times relevant herein. What other residences, business houses, churches or schools might have been in the neighborhood does not appear from the evidence or the findings.

The erection and rental of tenement houses on a rural homestead seems to have been placed on a somewhat different basis than such action with reference to an urban homestead. Wilder & Co. v. McConnell, 91 Tex. 600, 45 S.W. 145; Exall v. Security Mortgage & Trust Co., 15 Tex.Civ.App. 643, 39 S.W. 959, 960.

In the last cited case, Chief Justice James, in the course of his opinion for the court,' said: “The homestead in the country, it is provided, shall consist of not more than 200 acres, in one or more parcels, with the improvements thereon. Under the rule as it was before the constitution of 1876, as well as now, the condition to such a homestead was that the head of the family should, use it, or some part of it, as a home, or at least have an intention to do so. There was no necessity for enlarging this exemption for business purposes. If any part of the land, or any parcel thereof, was made to fulfill the condition of residence, the whole was exempt as homestead, irrespective of what use was made, if any, of the remainder; consequently the mention of a use for business purposes in connection with this exemption would have been meaningless and superfluous. In the opinion on rehearing in Miller v. Menke [’s Widow & Heirs, 56 Tex. 539], Judge Stayton says: 'The exemption for rural homestead gives not only the home or residence of the family, but not exceeding two hundred acres of land, in one of more parcels; enough to enable the head of the family thereon to exercise his calling or business, agricultural or other, and thereby provide a support for his family.’ ‘While the use to which the property is applied operates as a designation of the homestead in either case, yet the use of the rural homestead otherwise than as the home of the family is not necessary to preserve such a homestead to the full extent of the area provided by the constitution; while in reference to the urban homestead the use of the home of the family as a residence will not be sufficient to protect and keep alive the exemption of a place for the head of the family to exercise his calling or business which is detached and separate from the home.’ ”

It is true, in the case of Autry v. Reasor, 102 Tex. 123, loc.cit. 128, 108 S.W. 1162, 113 S.W. 748, this language is used: “In the case of Blum v. Rogers, 78 Tex. 530, 15 S.W. 115, we held that the building of a house within a town on a certain lot and renting it deprives it of its homestead character. We see no reason why the same rule should not apply to a rural homestead.”

In that case the court was considering as to whether a detached tract of farm land situated one-half mile from the home tract had ever been dedicated as a homestead— not as to whether the renting of such a tract previously dedicated as a homestead would constitute an abandonment thereof.

The case of Mayfield Co. v. Owens, Tex.Civ.App., 65 S.W.2d 343, is almost parallel to the case we have here, if it be assumed that we have a rural homestead involved. In that case the rural homestead was on a two-acre tract, a rent house was built on another portion of the tract and m connection therewith one acre of the two-acrc tract was rented to the tenant. It was held that this, as a matter of law, did not constitute an abandonment of the homestead interest in the entire two-acre tract. Here, it appears that, while all of the original homestead tract was perhaps rented, only the store and filling station were used by the tenants. Defendants, Mr. and Mrs. Perry, used most of it as a rural homestead. 'In this case nothing separates.the two tracts in question. We have grave doubts as to whether or not the finding of the trial court that this property was not the homestead of defendants Mr. and Mrs. Perry at the time of the conveyance to their son is sustained by the evidence. See Youngblood v. Youngblood, 124 Tex. 124, 76 S.W.2d 759. Appellees did not except to such finding, save by their cross-assignment. We deem an authoritative determination of this question unnecessary to a disposition of the case.

We find no reversible error in the record.

The judgment of the trial court is affirmed.

On Rehearing

In view of the able and vigorous motion of appellant for rehearing, we have with great care again reviewed the entire record in. this case. After such review we believe the appeal was properly disposed of.

The vital question involved is as to whether plaintiff was a creditor of defendants Mr. and Mrs. Perry at the time of their voluntary conveyance to defendant James Arthur Perry on June 3, 1936.

Plaintiff’s claimed debt is evidenced by a judgment rendered on the 14th day of December, 1937. If this judgment inherently shows on its face what items of damage are included therein, it should be conclusive. This judgment was rendered on findings of the jury on the following three special is.sues:

No. 1: “Was the separation between the plaintiff, Mrs. Collier, and her husband brought about, that is produced, through the wrongful acts or persuasion of the defendant, Mrs. Mary Perry?” Answer: “Yes.”
No. 2: “Was such wrongful act or persuasion, if such there was, the inducing and procuring cause of plaintiff’s husband separating from her?” Answer: “Yes.”
No. 3: “What sum of monev, if paid in cash riow, will compensate the plaintiff for the pecuniary loss she has sustained by reason of the separation or her husband from her.” “We find: $10 000.00.”

We think a fair construction of this judgment is that the damages awarded were those occasioned by the actual separation of plaintiff and her husband.

' Under the case as submitted, Betty Collier had no cause of action prior to the separation. No damages were awarded by the judgment save and except those resulting from such separation.

In connection with such special issue No. 3, this charge was given: “In this connection you are instructed that you will take into consideration only the loss plaintiff has sustained through being deprived of the earnings which her husband might have made and would have supplied or contributed to her, but for such separation, and likewise, the value to plaintiff of the society of her husband which she would have enjoyed but for the separation; but you will not take into consideration any embarrassment, humiliation, or mental distress of any character because of separation, nor will 'you consider any element of damages whatsoever save those expressly authorized above.”

In the instant case the trial court found that the separation occurred on the-day of November, 1936. This finding is not attacked.

Plaintiff Betty Collier’s cause of action, as evidenced by the judgment relied upon, did not arise until the - day of November, 1936. The damages for which the award was made all occurred subsequent to that date. What the pleadings were in that case do not appear in this record, and they would perhaps be immaterial herein. What was adjudicated clearly appears from that judgment, construed in the light of the undisputed evidence.

In this case the burden was upon plaintiff to show that she was a creditor on the date of the conveyance.

The sole purpose of admitting evidence as to the relations between Mrs. Perry and Mr. Collier prior to the filing of plaintiff’s petition was as an aid in the interpretation of the judgment. In respect to the date of the accrual of the damages an award of which is made, nothing but the date of the separation was necessary. Damages were awarded for the separation and the result thereof, and that was all.

It is ordered that the motion be overruled.