author: HIGGINS, J.

text:
    SMITH v. SMITH.
    (No. 751.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1917.
    On Rehearing, Jan. 17, 1918.)
    1. Sales &wkey;>145 — Bill of Sale — Essentials.
    A bill of sale is not .executed until it has been signed and delivered.
    2. Pleading <&wkey;291(2) — Denial under Oath —Bill of Sale.
    If defendant desired to place in issue either the signing or delivery of the bill of sale pleaded by plaintiff, it was necessary for him to deny the same under oath, as required by Rev. St. 1911, art. 1906.
    3. Trial <&wkey;251(5) — Instructions—Submitting Matter Not in Issue.
    In the absence of a sworn denial, nondelivery was not an issue, and should not have been submitted to the jury.
    4. Executors and Administrators &wkey;>450 —Action Against — Burden of Proof.
    In an action by a wife, against the executor of her husband’s estate, the burden was on the executor to show that the wife had relinquished her rights under the bill of sale upon which suit was based.
    5. Trial <&wkey;205 — Refusal of Instructions-—Burden of Proof.
    It was error to refuse a charge that the burden of proof was on defendant as to certain issues, where the instruction that the burden was on plaintiff to make out her case by a preponderance of the evidence was so placed that it led the jury to believe that the burden was on plaintiff as to all issues.
    6. Wills i&wkey;-88(3) — Distinguished from: Bill of Sale.
    An instrument providing that a husband and wife have bargained, sold, and delivered unto persons named certain described personal property, that the husband is to enjoy the revenues arising therefrom during his natural life, and that upon his death the property shall immediately pass in “accordance with the terms of this bill of sale,” is not testamentary in character.
    7. Sales &wkey;>199 — -Bill of Sale — Title—Intent.
    If delivery of the bill of sale was made with intent that it should become operative, title vested.
    8. Sales <&wkey;199 — Delivery—Intent.
    The intent of the grantors in a bill of sale is the controlling question in determining whether delivery has been made.
    9. Evidence <&wkey;431 — Parol Evidence — Delivery — Intention.
    Parol evidence is admissible to show whether grantors in bill of sale by delivery intended bill to become operative.
    10. Evidence <&wkey;417(9) — Parol Evidence-Contracts Partly in Writing.
    Where the entire contract was not in writing, parol evidence was admissible as to those matters upon which the contract was silent.
    11. Appeal and Error <&wkey;232(2)— Objections Not Urged Below — Evidence.
    Upon appeal the only objections to evidence which can be entertained are those which were made in court below.
    12. Trusts <&wkey;366(l) — Suit against Trustee —Parties.
    In suits by or against a trustee for recovery of trust property, the cestuis que trust are generally necessary parties.
    On Rehearing.
    13. Appeal and Error <&wkey;1066 — Reversible Error — Instructions — Burden op Proof.
    Where the burden of proof was on defendant to show payment and the evidence thereof was not conclusive, it was reversible error to refuse an instruction that burden was on defendant as to such issue where given instruction that burden was on plaintiff to make out her case by a preponderance of the evidence followed special issue of payment.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Suit by Genevrie Smith against J. W. Smith. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Lea, McGrady & Thomason, of El Paso (on appeal only), McLean, Scott & McLean, of Ft. Worth, Wilson & Allen, of Mineral Wells, and Tillman Perkins, of Palo Pinto, for appellant. J. T. Ranspot, of Palo Pinto, and Penix & Miller, W. P. Smith, and Ritchie & Cousins, all of Mineral Wells, for appellee.
   HIGGINS, J.

Cicero Smith and Genevrie Smith were husband and wife. They had three minor children, viz. Susie, Esther, and Cicero, Jr. Cicero Smith had been twice previously married. By each of his first two wives he had three children. One of those, a girl, had died, but left surviving children, referred to as the Frost heirs. The other five children by the first two wives were J. W. Smith, Sidney Smith, Julius Smith, Mrs. Clemmie Patterson, and Mrs. Helen Davis. Cicero Smith had an estate valued at approximately $875,000. Part of this belonged to the community estate of himself and Genevrie Smith. The remainder was separate property of Cicero Smith, or belonged to the community estates of himself and his deceased wives.

On February 15,1911, Cicero Smith prepared an inventory of his estate. The inventory first listed and valued his real ana personal property. It then continues in the following words:

“Divisions:
To Mrs. Genevrie Smith and
three children, Susie, Esther, and Cicero, Jr. $140,000 00
Runnells county land, all Mineral Wells estate. 59,900 00
200 shares Cicero Smith Lumber Co. 42,000 00
278 shares Graham National Bank . 33,369 00
25 shares Western National Bank, Ft. Worth. 3,125 00
40 shares Citizens’ National, Stamford . 5,000 00
30 shares First Nat. Bank, Santo . 4,500 00
25 shares International Fire Ins. Co. 3,750 00
To be paid from bills receivable . 78,395 76
Total to Mrs. Smith and three children . $370,030 76
“Section 2, to Julius Smith:
One-third interest in Palo Pinto Jack county lands.$ 20,000 00
All Cottle county land. 7,000 00
60 shares Cicero Smith Lumber Co. 10,500 00
75 shares First National, Mineral Wells. 11,250 00
6 shares Commonwealth Fire Insurance Co. 850 00
52 shares Mineral Wells Cotton Oil Co. 2,100 00
One-third interest in Morrison & Smith Lumber Co. 8,000 00
Lakewood Park Railroad interest . 1,500 00
To be paid from bills receivable . 31,307 69
Total to Julius Smith. 92,507 69
“Section 3, to Mrs. Clemmie Patterson:
Amount previously paid.$ 10,000 00
One-third interest Palo Pinto Jack county lands. 20,000 00
2 acres on Ft. Worth Dallas Interurban . 3,000 00
One-third interest Ft. Worth lots . 4,000 00
One-third interest Morrison-Shaith Lumber Co. 8,000 00
75 shares First National, Mineral Wells. 11,250 00
50 shares Cicero Smith Lumber Co. 10,500 00
5 shares Estaline State Bank.. 1,000 00
25 shares Byars, Okl., Bank.... 1,500 00
To be paid from bills receivable . 23,257 69
Total to Mrs. Patterson. 92,507 69
“Section4, to Mrs. Helen Davis: Amount previously paid. $ 10,000 00
One-third interest in Palo Pinto Jack county lands. 20,000 00
One-third interest in Morrison-Smith Lumber Co. 8,000 00
One-third interest Ft. Worth lots . 4,000 00
66 acres land at Garner, Tex... 3,500 00
50 shares Cicero Smith Lumber Co. 10,500 00
75 shares First National Bank, Mineral Wells . 11,250 00
20 shares Ft. Worth State Bank 2,300 00
To be paid from bills receivable . 22,957 69
Total to Mrs. Davis... 92,507 69
"Section 5,.to J. W. Smith:
Amount previously paid. $ 35,000 00
One-half interest in all East Texas lands .■•. 26,441 00
Interest in Valverde ■ county land . 300 00
64 shares ijj Cicero Smith Lumber Co. 13,440 00
68 shares in First National, Mineral wells . 10,200 00
4 shares Index Printing Co. 100 00
To be paid from bills receivable . 6,826 69
Total to J. W. Smith. 92,507 69
"Section 6, to Sidney Smith:
Amount previously paid.$ 35,000 00
One-half interest in all East Texas lands . 26,441 00
One-half interest in Valverde county land . 300 00
50 shares Cicero Smith Lumber Co. 10,500 00
75 shares First National Bank, Mineral Wells . 11,250 00
To be paid from bills receivable . 8,816 69
Total to Sidney Smith. 92,507 69
To Cleo, willie, and Gillie Frost:
Amount previously paid to their mother . $ 10,000 00.
To be paid from bills receivable . 30,000 00
Total to Frost children. ' 40,000 00
• Amount brought forward. 832,569 21
$872,569 21
“All mining stock, which cost about $117,000.00, proceeds to be divided equally, share and share

It will be noted that the amount of the first section of the inventory which relates to Genevrie Smith and her three children is $370,030.76. One-fourth (%) of that amount is $92,507.439, which is the amount shown in the other sections as allotted to each of the other children. The sections of this inventory strongly indicate that in preparing same Cicero Smith contemplated a disposition of his estate by will or deeds, which, taking into consideration the amounts previously advanced, would give to Mrs. Smith and to each of his surviving children the sum of $92,507.69, and to the Frost children, the heirs of a deceased daughter, the sum of $40,000. The proceeds of his mining stock was to be divided equally, share and share alike. On February 23, 1911, Cicero and Genevrie Smith signed and duly acknowledged a bill of sale which reads:

“The State of Texas, County of Palo Pinto.
“Know all men by these presents: That we, Cicero Smith and wife, Genevrie Smith, of the county of Palo Pinto and state of Texas, for and in consideration of the sum of twenty-five dollars ($25.00) to us in hand paid by Genevrie Smith, Susie Smith, Esther Smith and Cicero Smith, Jr., and the love and affection we have and bear for Genevrie Smith and our said daughters and son, have bargained, sold and delivered and by these presents bargain, sell and deliver unto the said Genevrie Smith, Susie Smith, Esther Smith and Cicero Smith, Jr., all of the county of Palo Pinto and state of Texas, their heirs and legal representatives and assigns each an undivided one-fourth interest in and to the following described personal property, to wit: 200 shares of the capital stock of the Cicero Smith Lumber Co., valued at $42,-000.00; 278 shares of the capital stock of the Graham National Bank, Graham, Tex., valued at $33,360.00; 25 shares of the Western National Bank, Ft. Worth, Tex., valued at $3,1215.00; 40 shares of the capital stock of the Citizens’ National Bank, Stamford, Tex., valued at $5,-000.00; 30 shares of the capital stock of the First National Bank, Santo, Tex., valued at $4,-500.00; 25 shares of the capital stock of the International Fire Insurance Co., valued at $3,750.00; seventy-eight thousand three hundred ninety-five 70/ioo dollars ($78,395.76) in cash to be paid out of the proceeds of notes and accounts and bills receivable belonging to grantors when collected out of same. To be held as the separate estate of grantees herein.
“And it is further hereby specially agreed and covenanted that personalty aforesaid shall remain in the possession of grantor, Cicero Smith, and he is to have and enjoy all the interest, dividends, revenue and proceeds arising therefrom during the natural life of grantor, Cicero Smith, and upon his death the said property herein conveyed shall pass immediately to the possession of the said Genevrie Smith, Susie Smith, Esther Smith in accordance with the terms of this bill of sale with the reservation hereinabove set out, we do ourselves, our heirs, legal representatives and assigns covenant to and with the said Genevrie Smith, Susie Smith, Esther Smith, and Cicero Smith, Jr., their heirs, legal representatives and assigns to warrant and defend the said property before mentioned against all and every person or persons whomsoever.”

It will be noted that the property transferred by the foregoing is the same corporate stock and amount to be paid from bills receivable as is shown in the first section of the above inventory.

On the same date Cicero and Genevrie Smith also signed and duly acknowledged bills of sale to each of the five children by former wives. These bills of sale were exactly the same as the one above quoted except as to property transferred.

The bill of sale to Julius Smith transferred everything shown in the second section of the inventory except the lands in Palo Pinto, Jack, and Cottle counties.

The bill of sale to Clemmie Patterson transferred everything shown in the third section of the inventory except the land in Palo Pinto and Jack counties, the two acres on the Ft. Worth-Dallas Interurban and the one-third interest in Ft. Worth lots.

The bill of sale to Helen Davis transferred everything shown in the fourth section of the inventory except the lands in Palo Pinto and Jack counties, the Ft. Worth lots and 66 acres at Garner, Tex.

The bill of sale to J. W. Smith transferred everything shown in the fifth section of the inventory except the East Texas and Val-verde county lands.

The bill of sale to Sidney Smith transferred everything shown in the sixth section of the inventory except the East Texas and Valverde county lands.

The bills of sale do not in any wise refer to “amounts previously paid” shown in sections 3, 4, 5, and 6. On February 23, 1911, Cicero Smith signed and duly acknowledged a deed conveying to Genevrie Smith a one-fourth undivided interest in various tracts of land situate in Bunnells county. This deed was recorded March 7, 1911, and reads:

“The State of Texas, County of Palo Pinto.
“Know all men by these presents: That I, Cicero Smith, of the county of Palo Pinto and state of Texas, for and in consideration of the sum of twenty-five ($25.00) dollars to me in hand paid by Genevrie Smith, of the county of Palo Pinto and state of Texas, the receipt of which is hereby acknowledged, and the love and affection I have and bear to my said wife, Genevrie Smith, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Genevrie Smith, an undivided one-fourth interest in and to all those certain tracts and parcels of land lying and situate in Bunnells county, Tex., and particularly described as follows, to wit: [Hero follows description of lands]. The above-described property shall be held as the separate estate of the grantee herein.
It is further hereby specially agreed and covenanted that the premises aforesaid with the appurtenances thereto shall remain in the quiet and peaceable possession of the said Cicero Smith, grantor, he to have and enjoy all the rents and proceeds and usufructs arising therefrom during his natural life; then the said property to pass immediately into the possession of the said Genevrie Smith, in accordance with the terms of this deed. To have and to hold the above-described premises with the reservation hereinabove recited, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Genevrie Smith, her heirs and assigns forever; and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Genevrie Smith, her heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

On February 23,.. 1911, Cicero Smith signed and duly acknowledged a deed in like form conveying to Genevrie Smith an undivided one-fourth interest in various tracts of land situate in Palo Pinto county. This deed was recorded March 7, 1911.

On February 23, 1911, Cicero and Genevrie Smith signed and duly acknowledged a deed conveying to Susie, Esther and Cicero Smith, Jr., each an undivided one-fourth interest in the Bunnells county land. This deed reads: “The State of Texas, County of Palo Pinto.

“Know all men by these presents: That we, Cicero Smith and Genevrie Smith, of the county of Palo Pinto and state of Texas, for and in consideration of the sum of twentyrfive ($25.-00) dollars to us in hand paid by Susie Smith, Esther Smith and Cicero Smith, Jr., of the county of Palo Pinto and state of Texas, the receipt of which is hereby acknowledged, and the love and affection we have and bear to the said Susie Smith, Esther Smith and Cicero Smith, Jr., our said two daughters and son, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., each an undivided one-fourth interest in and to all those certain tracts and parcels of land lying and situate in Bunnells county, Texas, and particularly described as follows: [Here follows description of land]. The above-described property shall be held as the separate estate of the grantees herein.
“It is further hereby specially agreed and covenanted that the premises aforesaid with the appurtenances thereto shall remain in the quiet and peaceable possession of the said Cicero [Written with pen and ink: “This deed is not to be delivered but the fee is to be passed by will. This deed is made to indicate a proper division”] Smith, grantor, to have and enjoy all the rents and proceeds and usufructs arising therefrom during his natural life; then the said property to pass immediately into the possession of the said Susie Smith, Esther Smith and Cicero Smith, Jr., in absolute fee, in accordance with the terms of this deed. To have and to hold the' above-described premises, with the reservation hereinabove recited, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., their heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

On February 23, 1911, Cicero and Genevrie Smith signed and duly acknowledged a deed conveying to Susie, Esther and Cicero Smith, Jr., each an undivided one-fourth interest in the Palo Pinto county land. This deed reads: “The State of Texas, County of Palo Pinto.

“Know all men by these presents: That we, Cicero Smith and Genevrie Smith, of the county of Palo Pinto and state of Texas, for and in consideration of the sum of $25.00 to us in hand paid by Susie Smith, Esther Smith and Cicero Smith, Jr., of the county of Palo Pinto and state of Texas, the receipt of which is hereby acknowledged and the love and affection we have and bear to the said and our said two daughters and son, have granted, sold and conveyed and by these presents do grant, sell and convey, unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., each an undivided one-fourth interest in and to all those certain tracts and parcels of land lying and situate in Palo Pinto county, Texas, and particularly described as follows: [Here follows description]. The above-described property shall be held as the separate estate of the grantees herein.
“This deed is not to be delivered, but is made to indicate a division of property, the fee to be passed by will.
“It is further hereby specially agreed and covenanted that the premises aforesaid with the appurtenances thereto shall remain in the quiet and peaceable possession of the said Cicero Smith, grantor, he to have and enjoy all the rents and proceeds and usufructs arising therefrom during his natural life; then the said property to pass immediately into the possession of the said Susie Smith, Esther' Smith and Cicero Smith-, Jr., in absolute fee, in accordance with the terms of this deed. To have and to hold the above-described premises with the reservation hereinabove recited, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., their heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to, warrant and forever defend all and singular the said premises unto the said Susie Smith, Esther Smith and Cicero Smith, Jr., their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

There is nothing to show that the two deeds to Susie, Esther, and Cicero Smith, Jr., were filed for record.

The foregoing deeds' cover the real estate and corporate stock mentioned in the section of the inventory relating to Genevrie Smith, and her children.

On February 23, 1911, Cicero Smith and Genevrie Smith signed and duly acknowledged various deeds conveying to Julius Smith, Sidney Smith, J. W. Smith, Clemmie Patterson, and Helen Davis, respectively, the lands to them respectively indicated in sections 2, 3, 4, 5, and 6 of the inventory. These deeds were filed in the various counties where the lands were situate on various dates from March 6, 1911, to July 21, 1911. These were all of like tenor and form. As representative of them all, the deed to J. W. and Sidney Smith conveying the Valverde county land is here quoted as follows:

“The State of Texas, County of Palo Pinto.

“Know all men by these presents: That we, Cicero Smith and wife, Genevrie Smith of the county of Palo Pinto and state of Texas, for and in consideration of the sum of $25.00 to us in hand paid by J. W. Smith and Sidney Smith, the receipt of which is hereby acknowledged and the love and affection we have and bear to our said sons, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said J. W. .Smith and Sidney Smith, of the counties of Palo Pinto and Tarrant, respectively, in the state of Texas, all those certain tracts and parcels of land lying and situate in Valverde county, Texas, and being- particularly described and set out as follows, to wit: [Here follows description]. This conveyance shall convey all our right, title and interest in the above-described tracts of land.
“And it is further hereby specially agreed and covenanted that the premises aforesaid with the appurtenances thereto shall remain in the quiet and peaceable possession of the said Cicero Smith, grantor, to have and enjoy all the rents and proceeds and usufructs arising therefrom during his natural life; then the said property to pass immediately into the possession of the said J. W. Smith and Sidney Smith in absolute fee, in accordance with the terms of this deed. To have and to hold the above-described premises with the reservation hereinabove recited, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said J. W. Smith and Sidney .Smith, their heirs and assigns, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said J. W. and Sidney Smith, their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

On February 24, 1911, Genevrie Smith, and the adult children of Cicero Smith signed an<J duly acknowledged this instrument:

“The State of Texas, County of Palo Pinto.
“Know all men by these presents: For and in consideration of the mutual benefits to arise to each and all parties hereto we, Genevrie Smith, J. W. .Smith, Sidney Smith, Clemmie Patterson, joined by her husband, L. E. Patterson, Helen Davis, joined by her husband, E. A, Davis, Julius Smith, and Susie Smith, Esther Smith and Cicero Smith, Jr., represented by their mother, Genevrie .Smith, hereby enter into the following agreement, to wit:
“In consideration of the conveyance to each signer hereof and bills of sale to said personal property, which deed of conveyance and bills of sale were executed by Cicero Smith and wife, Genevrie Smith, on the 23d day of February, A. D. 1911, to each party hereto respectively.
“It is agreed that J. -W. Smith shall be and we hereby constitute him our lawful agent to look after and care for our interest respectively in the property set apart to us respectively by the deeds and bills of sale, aforesaid, and he shall so remain our said agent until such time as may suit either of us or all of us to revoke such agency.
“It is further agreed that should the title to any property set out in said deeds of conveyance or bills of sale fail and should any of the notes, accounts and bills receivable set out in said bills of sale fail, then and in that event the failure of the title to any real or personal property, aforesaid, shall be shared pro rata by each and all the signers hereof, including the said Susie Smith, Esther Smith and Cicero Smith, Jr., that is to say that if there are any losses hereinafter entailed such loss shall be borne pro rata by the respective parties hereto.
“It is further agreed and understood that if any losses should come in the future in the management and control of the properties aforesaid each party shall share pro rata in such losses, likewise in any profits arising.
“This instrument shall not be binding after the death of Cicero Smith.”

In August, 1912, Cicero Smith, and Genev-rie Smith separated and the former filed suit for divorce. While the' suit was pending, Cicero and Genevrie Smith by deed and bill of sale dated August 29, 1912, conveyed to J. W. Smith, trustee for Susie, Esther, and Cicero Smith, Jr., certain lands and personal property. This deed was duly acknowledged, and was filed for record in Palo Pinto county on December 10, 1913, and in Runnells county on June 25, 1914. The pertinent portions of this deed read:

“The State of Texas, County of Palo Pinto.
“Know all men by these presents: That whereas, Cicero Smith and wife, Genevrie Smith, of the county and state aforesaid, are the owners of the property hereinafter described, as a part of their community estate, and which is free and clear of all defects of title and incumbrances whatsoever, and they desire to set apart and convey the same for the use and benefit of their three minor children, Susie Smith, Esther Smith and Cicero Smith, Jr., so that the rents, interest, dividends and income of every nature therefrom may be used towards their support, maintenance and education during their minority and to their use and benefit after reaching their majority and until they severally arrive at the age of thirty years, when and at which time the same, with all tlie increase thereof, not used as hereinafter provided shall be delivered to them, and to effectuate this purpose they deemed it advisable and best to convey said property to a trustee, for the use and benefit of their said three minor children, Susie .Smith, Esther Smith and Cicero Smith, Jr., to be held, used, disposed of, invested and reinvested as hereinafter directed and empowered.
“Now, therefore, we, Cicero Smith and wife, Genevrie, in consideration of the premises and of the love and affection which we have and bear to our said children, Susie Smith, Esther Smith, and Cicero Smith, Jr., and the further consideration of $1.00' to us in hand paid by J. W. Smith, trustee, of Palo Pinto county, Texas, the receipt of which is hereby acknowledged and for the uses and upon the trusts hereinafter mentioned, have granted, conveyed, confirmed and delivered and by these presents do grant, sell, convey, confirm and deliver unto the said J. W. .Smith, trustee, all of the following described real and personal property, to wit: [Here follows a complete description of an undivided three-fourths (%) interest in the Runnells and Palo Pinto county lands heretofore mentioned; also 209 shares of the capital stock of the Graham National Bank; 19 shares of the capital stock of the Western National Bank of Ft. Worth;
SO shares of the capital stock of the Citizens’ National Bank of Stamford; 22 shares of the capital stock of the First National Bank of Santo; 19 shares of the capital stock of the International Fire Insurance Company; $62,-243.07, money and notes in the hands of J. W. Smith, trustee, under agreement executed in February, 1911, by Cicero Smith and his wife and all of the children of Cicero Smith jind by Genevrie Smith for the minors, Susie, Esther and Cicero, Jr., all of the above-described real and personal property being valued at $247,523.-07; also a Vio interest in all mining stocks owned by Cicero Smith, describing same.] To have and to hold the above-described premises and property unto the said J. W. Smith, trustee, and his successors and assigns forever, in trust, nevertheless, for the purposes and uses following and none other: [The other provisions in the deed define the duties of the trustee.]”

J. W. Smith, accepted the trust under the foregoing deed and' gave the required bond. Pending the suit for divorce, Cicero and Genevrie Smith, on August 29, 1912, entered into a written agreement respecting the custody of their children and division of their property, which reads:

“Number 4151.
“Cicero Smith v. Genevrie Smith.
“Suit Pending, in the District Court of Palo Pinto County, Texas.
“In the above entitled and numbered cause, for the purpose of obviating the expense and delay incident to the litigation of the questions involving the care and custody of Susie Smith, Esther Smith and Cicero Smith, Jr., the minor children of plaintiff and defendant, and the property rights of plaintiff and defendant, the plaintiff and defendant have and by these presents do mutually agree that if the divorce is granted, as prayed for in plaintiff’s petition, judgment shall be entered disposing of the care and custody of the children, and the property of plaintiff and defendants as follows, to wit:
“[The first and second paragraphs relate to custody of children, etc.]
“Third. Plaintiff and defendant having partitioned their common property, and made provision for their said minor children, by conveyance to J. W. Smith, as trustee, it is agreed that said partition shall stand and that the title and absolute possession of the following property shall be vested by said decree, in defendant, to wit: [Here follows a description of property. A condensed description thereof is as follows:
“Homestead in Ft. Worth, valued at $15,-400.00; an undivided one-fourth interest in the following described property, viz., the Bunnells and Palo Pinto county land, described in the two deeds to Mrs. Smith of date February 23, 1911; also 69 shares capital stock Graham National Bank; 6 shares capital stock Western National Bank of Ft. Worth; 10 shares capital stock Citizens’ National Bank of Stamford; 8 shares capital stock First National Bank of Santo; 6 shares capital stock International Fire Insurance Company; $4,752.69, out of the money and notes in the hands of J. W. Smith as trustee under the agreement executed in February, 1911, by Cicero Smith and wife and all of their children for the minors Susie, Esther and Cicero, Jr. All of the above real and personal property valued at $82,507.69. Also 1/10 interest in all mining stocks and property owned by Cicero Smith describing same.]
“Fourth. [This relates to the, income of the minors Susie, Esther, and Cicero, Jr., from their estate in the hands of J. W. Smith, trustee.]
“Fifth. To avoid disturbing the present status of said properties and the increments thereof, it is agreed that plaintiff shall pay to defendant on the first day of each month after the date hereof, up to -and including the first day. of January, 1913, the sum of four hundred ($400.-00)-dollars per month for the support of herself and said minors Susie Smith, Esther Smith and Cicero Smith, Jr., and all of the dividends, interest and income for the year 1912 from the properties set apart to defendant herein, and conveyed to J. W. Smith, trustee for said minors, shall be collected by and be the property of the plaintiff under the agreement of February, 1911, reserving in him a life estate in the incomes from said properties.
“Sixth. [This is unimportant].”

On September 4, 1912, decree of divorce was entered in favor of Cicero Smith. In the decree the agreement respecting the custody of the children and division of property was confirmed and made a part thereof.

On September 7, 1912, Cicero Smith made his will. By the terms thereof he left a portion of his estate to J. W. Smith in trust for the Frost heirs. The balance of his estate he devised and bequeathed to Clemmie Patterson, Helen Davis, J. W., Sidney, Julius, Cicero, Jr., Susie, and Esther Smith. Cicero Smith died February 2, 1914, and his will was admitted to probate. In the inventory' of his estate there was listed 464 shares of stock of the lumber company.

Genevrie Smith filed this suit against J. W. Smith, indi\ '.dually and as trustee and as executor of the estate of Cicero Smith, deceased. She sought recovery ,of $19,598.94, the same being one-fourth of the amount of cash to be paid out of the proceeds of notes and accounts and bills receivable as shown in the bill of sale first above described; also sought recovery of 50 shares of the capital stock of the Cicero Smith Lumber Company, with accumulated dividends or its value. She alleged the execution and delivery of the bills of sale and deeds of date February 23,1911, and that same were executed by herself and Cicero Smith for the purpose of effecting a partition of their property between themselves and their various children. Attached to her petition and made a part thereof was the inventory made February 15, 1911, the bill of sale dated February 23, 1911, to herself and Esther, Susie, and Cicero Smith, Jr., first above described, and the instrument of date February 24, 1911, signed by Genevrie Smith and the adult children of Cicero Smith, appointing J. W. Smith their agent.

J. W. Smith answered by a general denial, and specially denied that there was a delivery made of any of the above-described hills of sale; that it was not the intention of Cicero Smith to make delivery or pass title thereby and did not make delivery thereof; that said instruments were simply for the purpose of indicating how his property was to be divided, ultimately passing title by his will. Other features of the answer need not "be stated. The answer was not verified. The case was submitted upon special issues. The charge reads:

“Special Issue No. 1: Was it, or not, agreed and understood between plaintiff, Mrs. Genevrie Smith, and Cicero Smith during the adjustment of their property rights leading up to and at the time of entering the judgment in cause No. 4151 pending in the district court of Palo Pinto county, and styled Cicero Smith v. Genevrie Smith, that 50 of the shares of the capital stock of the Cicero Smith Lumber Company, mentioned in the bill of sale from Cicero Smith and Genevrie Smith to Genevrie Smith, Susie Smith, Esther Smith, and Cicero Smith, Jr., dated February 23, 1911, and apportioned to Mrs. Smith, should thereafter' be apportioned to and become the property of said Cicero Smith? Answer: Yes.
“Special Issue No. 2: Did Cicero Smith, or not, at any time subsequent to February 23, 1911, surrender to the plaintiff, Genevrie Smith, his life estate mentioned in the instruments in her favor of date February 23, 1911, in consideration of his being permitted to have and retain as his property the shares of stock in the Cicero Smith Lumber Company which are sued for herein? Answer: Yes.
“Special Issue No. 3: Was the instrument introduced in evidence by the plaintiff dated February 23, 1911, and referred to in this suit as a copy of said instrument attached to plaintiff’^ petition and marked ‘Exhibit B,’ delivered by the said Cicero Smith to the defendant, J. W. Smith, prior to August, 1912? Answer: No.
“Special Issue No. 4: Was the instrument introduced in evidence by the plaintiff dated February 24, 1911, a copy of which is attached to plaintiff’s petition and marked ‘Exhibit O’ delivered to J. W. Smith prior to August, 1912? Answer: No.
“Special Issue No. 5: Was it the intention, or not, of the said Cicero Smith and Genevrie Smith at the time of the execution by them of the bill of sale to Genevrie Smith, Susie Smith, Esther Smith, and Cicero Smith, Jr., to 200 shares of the capital stock of the Cicero Smith Lumber Company, on February 23, 1911, that said bill of sale should be delivered to J. W. Smith and become operative as to the 50 shares of stock transferred therein to Mrs. Genevrie Smith? _ Answer: No.
_ “Special Issue No. 6: How much cash has been paid the plaintiff, Mrs. Genevrie Smith or for her use and benefit out of the notes, accounts, and bills receivable by J. W. Smith? Answer: $19,598.94.
“In answering the foregoing special issue No. 6, items of property taken by the said Mrs. Genevrie Smith at an agreed value, if any, will be considered by you cash at the value agreed on. Likewise notes or accounts paid for her, if any, .by J. W. Smith will be considered cash by you, as to the amounts paid, if any, by tHe said. J. W. Smith.
“The burden of proof is upon the plaintiff to make out her case by a preponderance of the evidence.”

Upon the answers judgment was rendered against Mrs. Smith. The evidence amply supports the finding that Mrs. Smith has received the $19,598.94 sued for as her one-fourth of the cash to be paid out of the notes, accounts, and bills receivable, and this phase of the case presents no question for review. The appeal relates to the judgment against her as to the 50 shares of stock in the Cicero Smith Lumber Company.

Opinion.

1. The plaintiff’s petition was founded upon the bill of sale dated February 23, 1911, whereby Cicero Smith, according to the face of the instrument, undertook to convey to Mrs. Smith and her three children 200 shares of the captital stock of the lumber company, reserving to himself for life the revenues thereof and right of possession. It was alleged that this instrument had been executed -and delivered by him. Article 1906, R. S. reads:

“An answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit. * * *
“A denial of the execution by himself or by Ms authority of any' instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit will be sufficient if it state that the affiant has. reason to believe and does believe that such instrument was not executed by the decedent or by his authority.”

Delivery is an essential part of the execution of a written instrument in order to render same operative. The execution of a written contract includes delivery. Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 571; Wheeler, etc., v. Briggs (Sup.) 18 S. W. 555; 9 Oyc. 302; 1 Bouvier’s Law Diet. (Rawl’s Third Revision) 1111, 1112. Such a contract is not executed until it has been signed and delivered. If defendant desired to place in issue either the signing or delivery of the bill of sale pleaded by Mrs. Smith, it was necessary that he should have denied the same under oath as required by the statute. In the absence of a sworn denial, the nondelivery of the instrument was not an issue in the case, and should not have been submitted to the jury. Davis v. Crawford, 53 S. W. 384; Drew v. Harrison, 12 Tex. 279; Williams v. Bailes, 9 Tex. 61; Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S. W. 1036; Nasworthy v. Draper, 28 S. W. 564; Bank v. Stewart, 39 Tex. Civ. App. 620, 88 S. W. 295; Pullman Co. v. Booth, 28 S. W. 719; Taber v. Eyler, 162 S. W. 490; Buchanan v. Edwards, 51 S. W. 33; Railway Co. v. Pool & Smith, 52 Tex. Civ. App. 307, 114 S. W. 685; Railway Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545; Railway Co. v. Edloff, 89 Tex. 454, 34 S. W. 414, 35 S. W. 144.

2. Among the affirmative defenses pleaded and'relied upon by defendant was that in the negotiations and settlement of the property rights of Cicero and Genevrie Smith in the divorce proceedings, Mrs. Smith, for a consideration, relinquished and retransferred to Cicero Smith the 50 shares of stock in controversy. This, if true, was an affirmative defense to any right to the stock which she might have acquired under the bill of sale. The burden of proof rested upon the defendant to establish this defense. Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593. At the end of his charge the court instructed the jury that:

“The burden of proof is upon the plaintiff to make out her case by a preponderance of the evidence.”

The instruction .given was a correct statement of the law, hut the manner and connection in which the same was given was calculated to lead the jury to believe that the burden was upon Mrs. Smith as to all the issues presented. Upon issues 1 and 2 the burden of proof rested upon the defendant. The charge was erroneous in the particular indicated, and the court should have given special charges Nos. 2 and 3 requested by plaintiff, placing upon the defendant the burden of proof as to those issues. The refusal of these charges is made the basis of the sixth and seventh assignments.

3. Various assignments complain of the insufficiency of the evidence to support the findings upon issues 1, 2, 3, 4, and 5. The case must be reversed and remanded for the errors indicated above. In view of a retrial, we retrain from any comment upon the probative force of the evidence, further than to say that those issues are raised by the evidence, and it will support a finding either way.

4. Without undertaking to discuss in detail the other assignments, we will briefly indicate the view which we entertain of the law governing the questions presented.

The bills of sale of February 23, 1911, have all the characteristics of conveyances and none of a will; and, gathering the intention of the makers thereof from the language of the instruments, they were conveyances and in no wise testamentary in character. Emerson v. Pate, 165 S. W. 469; McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, on rehearing, 89 S. W. 284; Bombarger v. Morrow, 61 Tex. 417; Martin v. Faries, 22 Tex. Civ. App. 539, 55 S. W. 501. It is admitted that they were signed; there is evidence that they were delivered to J. W. Smith, to whom it was agreed they should be delivered for all the parties. If such delivery was made by Smith and wife with the intention that they should become operative, then the instruments conveyed to the various grantees the property therein described, and vested title in such grantees subject to the right of Cicero Smith to retain possession of-the property during his lifetime and enjoy the revenues thereof so long as he lived. But if delivery to J. W. Smith was not made by. the grantors with the intention that the instruments should become operative, then a delivery in its legal sense was not made, and the instruments have not become operative, and have vested no title in the grantees. The intention of the grantors in this particular is the controlling question in determining whether delivery was made. Parol evidence is admissible to show such intention, and its admission does not violate the rule which excludes parol evidence offered to alter, vary, or contradict the terms of a written instrument. Wheeler v. Briggs (Sup.) 18 S. W. 555; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 571; McCartney v. McCartney, 93 Tex. 359, 55 S. W. 310; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823; Justice v. Peters, 168 Ky. 563, 182 S. W. 611.

5. Testimony of various witnesses was offered to show that in the negotiations between Mr. and Mrs. Smith leading up to the agreement of August 29, 1912, relative to the settlement of their property rights and the decree confirming the agreement made between them, Mrs. Smith agreed to relinquish to Mr. Smith the 50 shares of the capital stock of the lumber company, which she claimed under the bill of sale of February 23, 1911, in consideration of the payment by Mr. Smith of Mrs. Smith’s attorney’s fee in the divorce case and the setting aside to her of other property in lieu of the lumber company stock. It is objected to this evidence that it was inadmissible because all of the negotiations between the parties were merged in and concluded by the written agreement, and to give effect to the same would vary and contradict the same. The written agreement is entirely silent as to this lumber company stock. It does not undertake to set it aside to either of the parties, or to in any wise fix or determine ownership thereof. The contract is entirely silent as to what property was set aside to and vested in Cicero Smith. It is thus plain that the entire contract was not reduced to writing; that the agreement as to what property was to be set aside to Cicero Smith lies in parol. The testimony offered does not alter, vary, or contradict that portion of the agreement which was reduced to writing. It was admissible under well-established rules of evidence. Davis v. Sisk, 49 Tex. Civ. App. 193, 108 S. W. 472; Thomas v. Hammond, 47 Tex. 42; Whisenant v. Shores-Mueller Co., 194 S. W. 1175, and cases there cited.

Another objection is urged in the brief against the admissibility of this evidence, but it was not made in the court below, and cannot be considered for the first time upon appeal. Upon appeal the only objections to evidence which can be entertained are those which were made in the court below. See cases cited 7 Michie, p. 33 et seq.

6. The finding of the jury upon the sixth issue establishes that Mrs. Smith has received her share of the notes, accounts, and bills receivable. The evidence abundantly supports this finding. None of the errors assigned affect this part of the matter in controversy, and the issue in respect thereto is severable from the issues upon the suit •for the lumber company stock.

The judgment of the court below will therefore be affirmed in so far as it relates to ber suit for the sum of $19,598.94, the same being her share of the notes, accounts, and bills receivable, and is reversed and remanded for retrial only upon the issue of her right to recover the stock sued for in the Cicero Smith Lumber Company and accumulated dividends or its value.

In view of the necessity for further proceedings in this cause, we desire to direct attention to the general rule that in suits by or against a trustee for the recovery of the trust property the cestuis que trust are necessary parties. Ebell v. Bursinger, 70 Tex. 120, 8 S. W. 77; Schuster v. Crawford, 199 S. W. 327, recently decided by this court and not yet reported. In addition to being sued individually and as executor, J. W. Smith is also sued as trustee. There are some exceptions to the general rule indicated above, and unless the nature of his trust is such as to bring the case within some exception, then the beneficiaries of the trust must be made parties. We express no opinion upon that question, but merely call attention to the general rule, so that such action may be taken with respect to parties as the litigants or the trial court may deem proper. If the beneficiaries are necessary parties, the trial court can and should require their joinder before proceeding further and rendering a judgment which might adversely affect their interests.

•Affirmed in part; reversed and remanded in part.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.

On Rehearing.

Both parties have filed motions for rehearing. In so far as appellee’s motion is concerned, we see no occasion to modify or recede from the views heretofore expressed. It is therefore overruled.

In the original opinion, it was held that none of the errors assigned affected the finding of the jury upon the sixth issue that Mrs. Smith had received her share of the notes, accounts, and bills receivable. This was error. The burden rested upon X W. Smith to prove payment to Mrs. Smith of her share of the notes, etc., and the error in the' court’s charge upon the burden of proof affects this phase of the case. This error as to this issue would be immaterial if the evidence showed conclusively that she had been paid her share. Considering the record as a whole, it cannot be said that it so shows, for which reason we erred in affirming as to this issue in the case.

Appellant’s motion is therefore granted. The order affirming in part and remanding in part is set aside, and the cause is here now reversed and remanded generally for retrial.
      <S=AFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    DUGAN et al. v. SMITH et al.
    (No. 278.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1918.)
    1. Appeal and Error &wkey;>2 — Preparation op Statement op Facts — Repeal op Statutes by Acts as to Ofpicial Court Stenographers.
    Rev. St. 1911, arts. 2068, 2069, covering the manner of the preparation of a statement of facts in a cause appealed from, were in no manner repealed or modified by the act providing for the appointment of official court stenographers and prescribing their duties, or by subsequent acts relative to their duties and the preparation of statement of facts by them when requested by the parties.
    2. Costs &wkey;>254(l) — Charge por Statement op Facts Prepared by Trial Judge — Statute.
    Where a statement of facts is prepared by the trial court pursuant to Rev. St. 1911, art. 2069, the parties having failed to agree upon a statement, there can be no charge against either party for such statement taxed as costs in the case, though the court required the court stenographer to aid him in preparing the statement of facts by transcribing his notes.
    Appeal from District Court, Montgomery County; L. B. I-Iigbtower, Sr., Judge.,
    On motion to retax costs, etc.
    Motion sustained, and judgment, as formerly entered, modified.
    For former opinion, see 199 S. W. 654.
    McCall, Crawford & McCall, of Conroe, for appellants. W. N. Foster, of Conroe, for ap-pellees.
   HIGHTOWER, C. J.

The judgment of the trial court in this cause was heretofore affirmed by this court, and all costs incurred were adjudged to be paid by appellants. Among other items of cost mentioned in the bill of costs attached to the transcript is an item of $86.26 for the preparation of the statement of facts in the cause, and this item, together with all other items of cost, was adjudged to be paid by the appellants. After the judgment of this court affirming the judgment of the trial court was rendered and entered, appellants' filed their motion for a rehearing, which motion was by this court overruled, and thereupon appellants filed a motion praying this court to retax the costs adjudged against appellants, and to relieve them of the payment of the item of $S6.20 shown by the bill of costs to be charged for the preparation of the statement of facts. It is claimed by appellants in this motion that this item of cost cannot be properly and legally charged against appellants, and, after carefully considering the matter in this connection, we are of opinion that appellants’ contention must be sustained.

This cause was tried in the lower court, and final judgment was there entered on February 2, 1917, and the court adjourned on February 3, 1917. Appellants in due time and before adjournment of the trial court gave notice of appeal to this court, and 60 days were allowed appellants by tbe trial court in wbicb to file a statement of facts and bills of exception.

On March 22,1917, appellants prepared and presented to the attorneys for appellees in person a statement of facts which attorneys for appellants had prepared from their recollection of the evidence adduced upon the trial,, aided by such notes as they had taken during the trial, with the request that the attorneys for appellees promptly examine such statement of facts, and that they note thereon their objections thereto, if any they might have. On March 28, 1917, the attorneys for appellees informed attorneys for appellants that they could not agree to the statement of facts thus presented to attorneys for appellees, without a stenographic report of the case as prepared by the official court reporter; that attorneys for appellees were unable to point out any particular errors in such statement of facts so prepared and presented to them by attorneys for appellants, and did not point out any specific objections thereto, but attorneys for appellees failed and refused to agree to the statement so prepared and presented to them by attorneys for appellants. Thereafter on March 31, 1917, attorneys! for appellants made a written report to the trial judge in which they stated, substantially, that they had prepared a statement of facts in the cause, and had presented the same to the attorneys for appellees for their examination and objections thereto, if any, and for their agreement, if there were no objections thereto, but that, without pointing out any objections to such statement of facts, attorneys for appellees refused to agree to same, because they were unable to determine whether such statement so prepared was a correct statement of all the facts, in the absence of a stenographic report of the evidence. The statement of facts prepared by attorneys for appellants and presented to attorneys for appellees above mentioned bore the certificate of the attorneys for appellants, over their signature, that to the best of their knowledge such statement of facts was a full and fair statement of facts proven on the trial of said cause. In their written report to the trial judge, that they had been unable to agree upon a statement of facts with appellees’ attorneys, attorneys for appellants stated to the trial judge that appellants were unwilling to incur the expense of having' the official court stenographer to transcribe his notes taken on the trial, and to prepare a statement of facts therefrom, and requested, the trial judge, in view of the inability of counsel for the parties to agree upon a statement of facts, to prepare a statement of facts and order the same to be filed as a part of the record in the cause. Thereupon the attorneys for appellees suggested to the^ trial judge that he have the official stenographer transcribe his notes, as taken upon the trial, and that the trial judge, from such notes, prepare and file a statement of facts in the cause. This suggestion on the part of attorneys for appellees seems to have been adopted by the trial judge as a proper course to pursue under the circumstances, which is shown by the trial judge’s certificate of approval to the statement of facts, as follows:

“Counsel for relators (appellants) and respondents (appellees) having failed to agree on a statement of facts in this case, and relators having so notified the court, and called upon the court to prepare a statement of the evidence admitted in the trial, I caused the court reporter, at the request of respondents, to prepare a question and answer transcript of the testimony taken in the trial, and from such question and answer transcript the foregoing narrative statement of facts, embracing 75 pages, has been prepared, and after examination thereof, I give the same as a correct statement of the evidence introduced on the trial of said cause, and hereby certify that the same constitutes the substance of the material testimony introduced in the case, and order that it be filed as the statement of facts in this cause.
“Witness my hand this 23d day of April, 1917. B. B. Hightower, Judge Ninth Judicial District.”

Appellants, in their motion to retax the costs, make the following contentions:

(1) That in no instance where a statement of facts is prepared by the trial court can there be any charge- against either party therefor, taxed as costs in the case.

(2) That, even if it could be the law that appellants were chargeable with the preparation of the statement of facts in this case, the charge therefore is expressly limited by the statute to 15 cents per hundred words, and that on the statement of facts of only 75 pages, the charge of $86.20 is greatly excessive, unjust, and unreasonable, and that $45 would be the maximum amount for which appellants would be liable in any event.

(3) That under the law appellants had the right to make up their statement of facts and present same to the attorneys for appellees for an agreement, and that, no agreement having been reached, then it was the legal right of appellants to report such failure to agree to the trial judge, together with the presentation to him of the statement of facts certified to be correct, and that then it was the duty of attorneys for appellees to present to the .trial judge a statement of fa.cts prepared by them, and, if the trial judge had- not approved either of such statements, it then became the duty of the trial judge, from his bwn personal knowledge, with the aid of such statements, to make out and sign and file with the clerk a correct statement of facts "proven on the trial, which such statement should constitute a part of the record.

After a careful consideration of appellants’ contentions, we are of the opinion that their first contention above mentioned is correct, and must be sustained.

Article 2068 of Revised Statutes of 1911, in so far as applicable here, is as follows:

“After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection. If the parties, or their attorneys, agree upon such statement of facts, they shall sign the same; and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it; and the same shall be filed with the clerk.”

Article 2069, Revised Statutes of 1911, provides:

“If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements, make out and sign and file with the clerk a correct statement of the facts proven on tb,e trial; and such statement shall constitute a part of the record.”

We think it is now practically the settled rule in this state that articles 2068 and 2069 above quoted, covering the manner of the preparation of a statement of facts in a cause appealed from, were in no manner repealed or modified by the act of the Legislature providing for the appointment of official court stenographers, and prescribing their duties, either by the act of 1905, or subsequent acts relative to the duties of official court stenographers, and the preparation of statements of fact by them, when requested by parties to a cause. We shall not enter into a lengthy discussion of this point, for the reason that we are of opinion that our conclusion is fully sustained by the following authorities: Camden Fire Ins. Ass’n v. M., K. & T. Ry. Co. of Texas, 175 S. W. 816; Ft. Worth Pub. Co. v. Armstrong, 175 S. W. 1113; Buffalo Bayou Co. v. Lorentz, 177 S. W. 1183.

In the case of Buffalo Bayou Co., Incorporated, v. Lorents, 170 S. W. 1052, the Court of Civil Appeals for the First District seems to have reached a conclusion to the contrary; but it will be observed that three other Courts of Civil Appeals have declined to follow the holding of the Galveston court in this case, as shown by the conclusions reached in the three cases above cited, the opinions of which were by three different Courts of Civil Appeals, and we agree with those courts that the stenographer’s act did not repeal or modify articles 2068 and 2069, giving the right to parties to prepare statements of fact independently of the provisions pertaining thereto contained in the stenographer’s act.

If we are right in this conclusion, then appellants had the legal right to prepare a statement of facts in this cause below and to present the same to appellees for their inspection and objections and 'agreement, and, the parties having failed to agree upon such statement of facts so presented to attorneys for appellees, appellants' attorneys pursued their legal rights in making this fact known to the trial judge, and it then became the duty of the trial judge to prepare or cause to be prepared a statement of facts in said cause, and to file the same as a part of the record therein. This, we think, is substantially what the trial judge did. It is true the attorneys for appellees did not present to the trial judge a statement of facts prepared by them, and thus aid the trial judge in preparing a statement of facts by comparing both such statements so presented to him; but attorneys for appellees merely suggested or requested that the trial judge cause the stenographer to transcribe his notes taken on the trial in question and answer form, and from such notes the trial judge was requested by attorneys for appellees to prepare and file a statement of facts in the cause. The trial judge was not compelled to comply with such request on the part of attorneys for appellees, hut might have approved the statement of facts presented to him by the attorneys for appellants, if he believed the same to be a correct and full statement of the facts adduced upon the trial; but he was also authorized to have the stenographer transcribe such portions of his notes or perhaps all of them, if the trial judge thought necessary for the purpose of aiding him to prepare a statement of facts in the cause, and this, according to the certificate of the trial judge, is what he did. It is clear that neither party to this cause made a formal request of the stenographer to transcribe his notes, as either had the legal right to do by paying him therefor, and therefore the statement of facts in this record was not prepared under the provisions of the stenographer’s act, but, as we have stated, the statement of facts must be considered to have been prepared by the trial judge himself, in view of the disagreement of the parties, and we know of no law, and have been cited to none, providing that a statement of facts so prepared by the trial judge shall be chargeable as a part of the costs in the ease. That the trial judge had the right to have the stenographer aid him in the preparation of the statement of facts in this case by transcribing his notes, and in the absence of any request from either party to the stenographer to do so, is settled, we think, by the decision of the Supreme Court of this state in the case of Middlehurst v. Collins-Gunther Co., 100 Tex. 349, 99 S. W. 1027.

Therefore, after careful consideration of appellants’ motion to retax the costs in this case, and to relieve them of the payment of the item of $86.20 shown to be for the statement of facts in this cause, we think the same should be sustained, and it is accordingly ordered that the judgment of this court as heretofore entered, taxing all the costs against the appellants, be modified .to the extent of relieving them of the payment of said item of $86.20, as for the statement of. facts in this cause.
      <gu=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    MERCHANTS’ TRANSFER CO. et al. v. HILDEBRAND.
    (No. 5940.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.)
    1. Appeal and Error <S=^351(2) — Appeal erom Interlocutory .Order Appointing Receivers — Time for Filing Bond and Transcript.
    Under Rev. St. 1911, art. 2079,- regulating appeal from an interlocutory order appointing a receiver, the appeal bond and not the transcript of the record must be filed within 20 days after the appeal is perfected.
    2. Corporations <&wkey;553(l) — Appointment of Receiver — Pledge of Corporate Stock — Injunction.
    Where the pledgor of corporate stock could obtain adequate relief by an injunction restraining the pledgee from disposing of the stock and the corporation from transferring it on its books pending litigation, he cannot have a receiver appointed.
    3. Corporations <&wkey;553(l) — Remedy of Stockholder — Mismanagement — Fraudulent Appointment of Receiver.
    Where corporate stock pledged by the stockholder was wrongfully voted by the pledgee at a stockholder’s meeting, whereby an amendment to the charter was procured authorizing the corporation to embark on a hazardous business not authorized by its original charter, the pledgor’s remedy by suit for injunction against or to set aside any action by the corporation under the amendment was adequate, and a receivership should be denied.
    4. Corporations <&wkey;553(l) — Stockholders’ Rights — Appointment of Receiver.
    Injunction was an adequate remedy for a corporate stockholder complaining that certain contracts were about to be made by the company to launch it into a hazardous business authorized by an amendment to its charter improperly procured by a pledgee’s voting the stockholders’ stock, and there was no ground for a receiver.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Petition for receivership by H. E. Hildebrand against the Merchants’ Transfer Company and others. From an interlocutory order appointing receiver, the company and others appeal.
    Order reversed, set aside, and receivership vacated.
    Cobbs & Cobbs and B'larshall Eskridge, all of San Antonio, Terry, Cavin & Mills, of Galveston, and F. C. Davis, of San Antonio, for appellants.
   MOURSUND, J.

This is an appeal by the Blerehants’ Transfer Company, a corporation, from an interlocutory order appointing a receiver to take charge of its properties, such order having been granted without notice upon the petition of H. E. Hildebrand against said company, John M. Roberts, and J. A. Robertson,- alleging that plaintiff has been engaged in the transfer business in San Antonio for ten years, as the owner of a majority of the capital stock of two corporations, the Carter Blullaly Transfer Company, organized for and limited by its charter to the transportation of passengers and baggage, and the Blerehants’ Transfer Company, organized for and limited by its charter to the purpose of handling freight; that defendants Roberts and Robertson conspired to oust plaintiff from the ownership, management and control of said companies, and, pursuant to such design, brought about the borrowing of $10,-000 from Robertson by the Carter Mullaly Company, and afterwards the further sum of $15,000, and Roberts mismanaged the affairs of said company and it ceased to make any money; that plaintiff had become heavily indebted for real estate and needed $10,000 to pay a debt to the West Texas Bank & Trust Company, whereupon Robertson loaned him said sum, and in order to secure the repayment of the sum required plaintiff to pledge him 270 shares of the capital stock of the Merchants’ Transfer Company owned by plaintiff, which was a majority of the capital stock of said company, and also to pledge certain notes; that while plaintiff was struggling to get his affairs in shape to liquidate his indebtedness and rehabilitate the disorganized affairs of the Carter Mullaly Transfer Company, resulting from Roberts’ management, the defendants maliciously, for the. purpose of carrying out their plan of getting control of the companies, went into the district court at Galveston, and on April 20, 1916, prevailed on the court to appoint a receiver for said Carter Mullaly Transfer Company ; that said defendants and their receiver then took charge of said company and operated same up to March 29,1917, when they were compelled to deliver possession of all property to A. C. Burnett, who had been appointed trustee in bankruptcy for said company ; that the principal value of the Carter Mullaly Transfer Company consisted in certain traffic arrangements and contracts with the railroads entering San Antonio for the transfer of passengers and baggage, and said defendants began to negotiate with such railroads for said contracts for themselves, making false representations concerning the Carter Mullaly Transfer Company and claiming to be seeking the same for the Merchants’ Transfer Company, well knowing that said company was chartered only for handling freight; that plaintiff then ascertained that Robertson was claiming said 270 shares of stock in the Merchants’ Transfer Company as his own, and had procured the transfer thereof to himself on the books of the company ; that notwithstanding Robertson knew plaintiff never intended that said company should ever be chartered for the purpose of transporting passengers, baggage, and mail, on January 25, 1917, he unlawfully voted said stock at a pretended meeting of stockholders of said company, of which plaintiff was not notified and at which he was not present, and undertook by a resolution unlawfully passed at such meeting to amend the charter of such corporation so that it would have the legal right to transport passengers, baggage, or mail, and be legally authorized to contract with reference thereto; that after the passage of such resolution it was falsely certified to the Secretary of State, as the act of said corporation, and thereupon said official, on January 29, 1917, issued an amendment to the charter of said Merchants’ Transfer Company undertaking to authorize it to engage in the business of transporting passengers, baggage, and mail; that, pursuant to said falsely obtained authority, defendants, purporting to act for and represent the defendant Merchants’ Transfer Company, have negotiated contracts, so plaintiff is informed and believes, with the railroads entering San Antonio, by the terms of which the Merchants’ Transfer Company will engage in the business of transferring passengers, baggage, and mail; that the equipment of said company is not suitable for such business, and in order to engage therein a large sum, probably $25,000, will be required to be expended for suitable equipment, and plaintiff is informed and believes that Robertson has already advanced a large part of the money required for that purpose; and that, as said company is inexperienced in such business and wholly unfit to conduct it and is about to incur such large obligations^ it is in imminent danger of insolvency, and unless a receiver is appointed said company will be destroyed and plaintiff will lose his stock therein. Plaintiff averred his willingness to pay Robertson the debt secured by said 270 shares of stock and alleged a tender and offer to dp so. He also alleged the value of the stock, and that the company was being grossly mismanaged by Roberts and Robertson. It was further alleged that if the company is managed as plaintiff fears it will be, and as Roberts is threatening to do, it will become wholly bankrupt. There are other allegations, but we have stated the case sufficiently as made by the petition.

Aijpellee contends this court is without jurisdiction because the record was not filed within 20 days after the appeal was perfeeted. Article 2079 has been construed to mean that the ajipeal bond shall be filed within 20 days and not the transcript. Simpson v. Alexander, 183 S. W. 852. In view of the impression which appears to prevail with the members of the bar that the transcript in such cases should be filed within 20 days, we have given the contention of appellee careful consideration, but find no support for such contention.

The provision allowing an appeal from an interlocutory order appointing a receiver was first made by the act approved April 13, 1892, known as chapter '17, 1st Called Sess. 22d Reg. Gammel’s Laws, vol. 10, p. 406. In that act a number of articles of the statutes are amended, among them article 1387 (R. S. 1879),- which provided that an appeal may be taken by giving notice of appeal and filing the appeal bond. If those steps were sufficient theretofore and under that act to constitute the taking of an appeal, it would seem that when the-Legislature allowed appeals from orders appointing receivers, provided said appeal be taken within 20 days from the entry of the order, it did not mean provided the transcript is filed within 20 days from the entry of the order. There is a'provision giving such appeals precedence in the appellate court, but we cannot, upon the strength of such provision, deduce an intention to use the language, “provided said appeal be taken,” in a different sense than was given it in article 1387. The motion to dismiss the appeal is overruled.

The case, as it affects the Merchants’ Transfer Company, may be stated as follows: (1) That the pledgee of stock had it transferred on the books of the corporation, and the pledgor seeks to redeem the' stock and recover possession thereof. If necessary, he could obtain an injunction restraining the pledgee from disposing of the stock and the corporation from transferring it on its books while the litigation is pending. Cook on Corporations (7th Ed.) § 475. (2) It is alleged that the stock was wrongfully voted at a stockholders’ meeting, and that thereby an amendment to the charter was procured, and that the corporation is about to embark upon a business not authorized by its original charter, but authorized by such amendment. In such cases it appears that the remedy is a suit in equity to obtain an injunction against or to set aside any action by the corporation under the amendment. Cook on Stock and Stockholders (3d Ed.) § 502; Cook on Corporations (5th Ed.) § 501. (3) It is alleged that certain contracts are about to be entered into on behalf of the corporation for the purpose of launching it into the business authorized by the amendment, and that for it to make such contracts and engage in such business would bring on bankruptcy. Here again it appears injunction would be an adequate remedy.

There is no ground stated in the petition sufficient to justify the appointment of a receiver to take charge of the Merchants’ Transfer Company. The following cases are cited in support of our holding: People’s Investment Co. v. Crawford, 45 S. W. 738; Toomey v. First Mortgage Trust Co., 177 S. W. 540; Continental Trust Co. v. Brown, 179 S. W. 939.

The order of the court appointing the receiver is reversed, set aside, and the receivership vacated.
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