author: JENKINS, J.

text:
    THOMPSON et al. v. WAITS.
    (Court of Civil Appeals of Texas. Austin.
    May 28, 1913.
    Rehearing Denied July 5, 1913.)
    1. Adoption (§ 8) — Statutory Provisions— Sufficiency- of Deed of Adoption — “De-gal Heirs.”
    Under Rev. St. 1895, art. 1, providing that any person wishing to adopt another as his legal heir may do so by filing with the clerk of the county court a statement in writing, reciting that he adopts such person as his legal heir, and article 2, providing that such statement, signed and recorded, shall entitle the party so adopted to all the rights and privileges of a legal heir of the party adopting him, an instrument executed by a husband and wife having no children, reciting that they thereby adopted W. as their legal heir, thereby conferring upon him all the rights and privileges in law and equity appertaining to' “this act of adoption,” but that it was intended and was their purpose to make W. a coheir with their legal heirs, with the understanding that he was made an heir to $1,000 more of their property than the other legal heirs, that the property coming to him was to remain free from the possession or control of his natural father, and that upon his death it was to revert to their other legal heirs, was not effective as an adoption, since while the first clause alone showed an intention to adopt W. as provided by statute, the subsequent provisions that he should not have all their property to which he would have been entitled under the statute showed that it was not intended to adopt him to the extent provided in the statute, and such subsequent provisions could not be rejected for uncertainty, on the theory that no one is heir to the living, as the words “legal heirs” were evidently used as meaning those who would be entitled to the property under the laws of descent and distribution (citing Words and Phrases, vol. 5, pp. 4063-4064).
    [Ed. Note. — Eor other cases, see Adoption, Cent. Dig. §§ 12-14; Dec. Dig. § 8.]
    2. Contracts (§ 162) — Construction—Giving Effect to Entire Instrument.
    In construing written instruments, effect must be given to every clause, if possible, and in determining whether apparently contradictory provisions can be harmonized, the entire instrument should be looked to in the light of the surrounding circumstances.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 162.]
    3. Contracts (§ 162) — Construction— Giving Effect to Main Purpose.
    Where two purposes or intents may be inferred from the language of a written instrument, and the main purpose clearly appears, it will control, but this merely means that, where the language is susceptible of two meanings, that will be adopted which does not contradict the main purpose as evident on the face of the instrument.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 162.]
    4. Contracts (§ 162) — 'Validity—Inconsistent Provisions.
    Where the language of a written instrument admits of but one meaning, and the different clauses are plainly contradictory,' they mutually destroy each other and render the instrument void.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 162.]
    5. Adoption (§ 1) — Nature of Proceeding. Adoption is unknown to the common law, and is purely' statutory.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. § 15; Dec. Dig. § 1.]
    6. Wills (§ 58) — Contracts to Devise or Bequeath — Invalid Act of Adoption.
    An instrument, executed by a husband and wife, attempting to adopt a child as their legal heir, but failing to accomplish that purpose because it gave him a less interest in their property than an adopted child is entitled to under the statute, will be upheld, as a contract to leave a portion of the property of the makers to such child.
    [Ed. Note — For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.]
    7. Wills (§ 67) — Contracts to Devise or Bequeath — Enforcement.
    A contract by which parties agree to leave a portion of their property to another, upon compliance therewith by the beneficiary, is enforceable in equity.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 175-177; Dec. Dig. § 67.]
    8. Wills (§ 59) — Contracts to Devise or Bequeath — Consideration.
    The society and affections of a child and the services which it may render are a sufficient consideration to support a contract by per-.soris attempting to adopt such child, but failing to accomplish such purpose to leave a portion of their property to such child.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 166; Dec. Dig. § 59.]
    9. Wills (§ 63) — Contracts to Devise or Bequeath — Construction.
    Under a written instrument executed by a husband and wife having no children, reciting that they thereby adopted W., conferring upon him all the rights and privileges appertaining to “this act of adoption,” that it was intended to make him a coheir with their legal heirs, with the understanding that he was to be made an heir to $1,000 more of their property than their other legal heirs, that the property coming to him was to remain free from the possession or control of his natural father, and that upon his death it was to revert to the other legal heirs of such husband and wife, treated as a contract by the husband and wife to leave property to W., he was entitled to such amount of, the property as he would have received if he had been a coheir with the other heirs, plus $1,000.
    [Ed. Note. — For other cases, see Wills, Cent Dig. § 171; Dec. Dig. § 63.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.

      Action by P. V. Thompson and others against J. M. J. Waits. Prom a judgment ior defendant, plaintiffs appeal.
    Reversed and remanded.
    Scott & Ross and Spivey, Bartlett & Carter, all of Waco, and Tom Connally, of Marlin, for appellants. O. L. Stribling, of Waco, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Findings of Fact.

JENKINS, J.

Appellants brought suit to recover an interest in certain lands in Falls county, Tex., alleging that said lands were formerly owned by J. M. Jackson and wife, Eleanor Jackson; that J. M. Jackson died in 1898, leaving a will, which was duly probated, by which he bequeathed all of his property to his said wife; that Eleanor Jackson died intestate April 8, 1910, leaving surviving as her only heirs her brothers, P. Y. and J. M. Thompson, four children of a deceased sister, and one grandchild of said sister, viz., appellee herein; that by reason of said facts appellants P. V. and J. M. Thompson were each entitled to one-third of said land; that the four children of said deceased sister and appellee were each entitled to one-fifteenth thereof. Appellants further alleged that appellee had taken exclusive possession of said land, and was claiming the same in fee simple, by virtue of the following instrument:

“The State of Texas,. County of Falls. Know all men by these presents; That we, J. M. Jackson and wife, Eleanor Jackson, of said state and county, have by this instrument adopted J. M. Jackson Waits, the child of C. G. and Ella Waits, now of the age of five years (5) as our legal heir, hereby conferring upon him all the rights and privileges both in law and equity appertaining to this act of adoption. However, it is intended by this instrument, and is the purpose of the said J. M. Jackson and wife in adopting the said J. M. Jackson Waits to make him a coheir with their legal heirs, with the understanding that the said J. M. J.. Waits is hereby made an heir to one thousand ($1,000) dollars more of our property than are the others and remainder of our legal heirs, and is hereby expressly provided that the property coming to the said J. M. J. Waits as our adopted heir is, in the case of the death of us, the said J. M. Jackson and wife, or the death of the said J. M. Jackson Waits to be and remain forever free from the possession or control of the said C. G. Waits, father of the said J. M. J. Waits and in the event of the death of said J. M. J. Waits after the death of ourselves, his property to revert to the other of our legal heirs. Witness our hands this 24th day of February, A. D. 1887. J. M. Jackson, Eleanor Jackson.”

“The State of Texas, County of Falls. Before me, J. H. Freeman, a justice of the peace and ex officio notary public in and for Falls county, Texas, on this day personally appeared J. M. Jackson and Eleanor Jackson, wife of J. M. Jackson, personally known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed; and the same Eleanor Jackson, wife of the said J. M. Jackson, having been examined by me privily and apart from her husband, and having the same by me fully explained to her, she, the said Eleanor Jackson, acknowledged such instrument to me to be her act and deed, and she declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it. Given under my hand and seal of office, this 12th day of April, A. D. 1887. J. A. Freeman, Justice of the Peace and Ex Officio Notary Public, Falls County, Texas.”

That no children were ever born to said J. M. and Eleanor Jackson, and that at the time of the execution of said instrument they had reached an age at which they did not expect any children to be born to them. Said instrument was recorded in the office of the county clerk of Falls county April 20, 1S87. Appellees excepted to said petition upon the ground that said written instrument showed that appellee was the owner in fee simple and entitled to the possession of the land herein sued for. The court sustained this exception, and, appellants declining to amend, have brought this action of the trial court before us, on this appeal, for review.

Opinion.

1. The law with reference to adoption, in so far as applicable to this case, is as follows (Acts 1849-50, c. 39; R. S. [1895] arts. 1, 2):

“Article 1. — How Heir Adopted. — Any person wishing to adopt another as his legal heir, may do so by filing in the office of the clerk of the county court of the county in which he may reside a statement in writing, by him signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite in substance that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office.

“Art. 2. — Rights of Adopted Heir.- — Such statement in writing, signed and authenticated or acknowledged, and recorded as aforesaid, shall entitle the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him; provided, however, that if the party adopting such heir have, at the time of such adoption, or shall thereafter have a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him.”

2. The contentions of appellee, as we gather from the brief and argument of his able counsel, are substantially as. follows: (1) The first part of said instrument is a full compliance with our statute with reference to adoption; (2) the subsequent part of said instrument should not be construed as evidencing an intention contrary to the first part, for the reason that it is so .vague and uncertain that the intention of the makers cannot be deduced therefrom; (3) looking to the whole instrument, it appears that the controlling purpose of the makers thereof was to adopt appellee, and to “confer upon him all the rights and privileges” provided for in our statute of adoption. These contentions have appealed to us with considerable force, and it is with much hesitancy that we have felt ourselves constrained to reject them.

3. If the appellee was adopted, as provided for in said statute, he is, under the facts of this case, the only heir of Eleanor Jackson, and the owner in fee simple of the land in controversy, the interest of J. M. Jackson in said land having been bequeathed to said Eleanor Jackson. If the first part of said instrument be alone looked to, it constitutes a full compliance with our statute as to adoption.

4. A primary rule of construction of a written instrument is that, if possible, effect must be given to every clause thereof. Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 16; Hancock v. Butler, 21 Tex. 806; Smith v. Brown, 66 Tex. 545, 1 S. W. 573; Moore v. Waco, 85 Tex. 206, 20 S. W. 61-63. Hence it is our duty not to reject the second clause of said instrument, if under a reasonable construction of the whole instrument both clauses can be given an effect that will harmonize the apparent contradictions. In order to determine whether or not this can be done, we must look to the entire instrument, in the light of the surrounding circumstances. Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542; Hearne v. Gillett, 62 Tex. 26; Hunt v. White, 24 Tex. 652; McHugh v. Gallagher, 1 Tex. Civ. App. 201, 20 S. W. 1115.

5. Should the apparent contradictions in the second clause be rejected, for the reason that it is manifest that the leading purpose' of the makers of said instrument was to adopt appellee as their legal heir, as provided for in our statute? If a contrary purpose is inferable from the second clause, does it appear that such purpose was subsidiary to the main purpose, and therefore should not be given effect? It is a rule of law that where two purposes or intents may be inferred from the language used in a written instrument, and the main purpose of such instrument clearly appears, such main purpose will control. Hancock v. Butler, supra; Parrish v. Mills, 102 S. W. 187, and authorities there cited.

6. But this rule means that where language is used which is susceptible of two meanings, that meaning will be adopted which does not contradict the main purpose of the instrument, as evident on its face. Thus in Hopkins v. Hopkins, supra, it was held that the word “heirs” was not to be given the technical meaning, as laid down by the rule in Shelley’s Case; and so, in Simonton v. White, 93 Tex. 56, 53 S. W. 339, 77 Am. St. Rep. 824, the words “bodily heirs” were held not to mean “heirs” in the technical sense. See, also, McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 488.

7. If the language used admits of but one meaning, and the different clauses of a written instrument are plainly contradictory, they mutually destroy each other and render the instrument void. We are not here dealing with the rule that in construing a deed preference should be given to the granting clause over the habendum clause.

8. What is the leading purpose of the instrument under consideration? Is it to make the appellee the adopted heir of the parties executing such instrument, as provided by statute? Such purpose is fairly, and in the absence of anything to the contrary, necessarily inferred from the language used in the first clause. That is to say, looking to the first clause alone, the inference is that the purpose and intent of the makers of the instrument was that the appellee should inherit, at their death all of their property; they having no children and no expectancy of children. But shall we say that such was their purpose and intent, when they expressly declare in the second clause that such was not their purpose or intent? Whatever uncertainty there may be as to what portion of their property appellee should have, it is certain from the language used in the second clause, which is added for the avowed purpose of explaining their purpose in executing said instrument, that it was their intention that appellee should not have all of their property. The inevitable deduction from this is that it was not the purpose or intent of J. M. and Eleanor Jackson to adopt appellee in the manner and to the extent provided in our statute.

9. Adoption is unknown to the common law. It is purely statutory, and as the alleged adoption was not in compliance with the statute, appellee was never adopted by the Jacksons, or either of them. Guffey v. Hooks, 47 Tex. Civ. App. 560, 106 S. W. 693; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486; Sarazin v. U. R. Co., 153 Mo. 479, 55 S. W. 94; Taylor v. Deseve, 81 Tex. 250, 16 S. W. 1008; Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, 3 L. R. A. 624, 11 Am. St. Rep. 808.

10. We cannot escape the conclusion that the instrument under consideration did not amount to the adoption of appellee, unless we reject the second clause thereof entirely. Should this be done for the reason that the second clause does not indicate who is to share the property with appellee? The instrument declares such parties to be the “legal heirs” of J. M. and Eleanor Jackson. Appellee invokes the maxim that the living have no heirs. True, in the technical sense, and yet the first clause of the instrument, the one relied upon by appellee, declares that the makers of same adopt appellee as their “legal heir,” and such is the language of the statute relied upon. The word “heirs” is very frequently used to designate those who will be entitled to property under the laws of descent and distribution, and this is evidently the sense in which it is used in the second clause of said instrument. Hanna v. Hanna, 10 Tex. Civ. App. 101, 30 S. W. 820; McFerrin v. Templeman, 102 Tex. 530, 120 S. W. 168; Eckford v. Knox, 67 Tex. 202, 2 S. W. 372; Words and Phrases, vol. 21, p. 411.

11. We construe said instrument to be a contract to leave a portion of the property of the makers of the same to appellee upon their death, such portion to be determined by the number and relationship of the parties who otherwise would have inherited .all of said property. Whether appellee will take a fee simple or only a life estate we are not called upon to decide, as the case is now presented to us. Such a contract, upon compliance by the beneficiary, is enforceable in equity. Jordan v. Abney, supra; Healey v. Simpson, 113 Mo. 340, 20 S. W. 883; Wright v. Wright, 99 Mich. 170, 58 N. W. 54, 23 L. R. A. 196; Kofka v. Rosicky, 41 Neb. 329, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685; Van Tine v. Van Tine (N. J.) 15 Atl. 249, 1 L. R. A. 155; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Chehak v. Battles, 133 Iowa, 107, 110 N. W. 330, 8 L. R. A. (N. S.) 1130, 12 Ann. Cas. 140; Burns v. Smith, 21 Mont. 251, 53 Pac. 742, 69 Am. St. Rep. 653.

In Jordan v. Abney, supra, our Supreme Court said: “That a contract between two persons, upon a valuable consideration, that one will, at his death, leave property to the other is enforceable, where no statute is contravened, is held by an almost unbroken current of authority, English and American.” The society and affections of the child and the services it may render is a sufficient consideration to support such a contract. Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 887, 85 Am. St. Rep. 480. In some of the cases above cited the contract was made with the parents for the benefit of the child. In Wright v. Wright, supra, the child was eight years old, and had no parents when it was taken from an orphan asylum. The effect of the decision is that the contract was made with the child.

We think this construction of the instrument under consideration is deducible from the language of the instrument, looking to its four corners, and seeking to give effect to every part thereof. The language in the first clause is not that all of the “rights and privileges, both in law and equity,” appertaining to a legal or statutory adoption are conferred on appellee, but only such rights and privileges as appertain to “this act of adoption.” These rights and privileges are specifically explained in the second clause to be to make him “a coheir with their legal heirs.” While said instrument did not, for technical reasons, make him an heir at all, and while the makers of said instrument at that time did not have any “heirs,” technically speaking, still, if the instrument be so construed that the appellee shall receive from the estate of J. M. and Eleanor Jackson the amount of property that he would have received, plus $1,000, If he had been a “coheir,” with those who become the “legal heirs” of said parties at their death, the evident purpose of Mr. and Mrs. Jackson in executing said instrument will be carried into effect.

Eor the reasons above stated, the judgment of the trial court is reversed, and this cause is remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    MOORE v. RABB.
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1913.)
    1. Appeal and Eeeob (§ 282) — Review—Motion pok New Teial.
    Rule 71a, District Court Rules, as amended January 24, 1912 (145 S. W. vii), provides that a motion for a new trial is necessary to an appeal in all cases, unless the error is fundamental, except in such cases as the statute does not require a motion. Rev. St. 1895, art. 1333, provides that no motion for a new trial need be filed where the case is tried by the court and conclusions of fact and of law are prepared and filed by the court. Held, that a motion for a new trial is not a prerequisite to an appeal, where conclusions of fact and law are filed by the court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 166ÍL-1665; Dec. Dig. § 282.]
    2. Appeal and Eeeoe (§ 1010) — Finding-Review.
    The court trying the facts as a jury is the judge of the weight and credibility of the evidence, and its finding will not be disturbed on appeal, unless the weight and preponderance of the evidence is so great against it that it cannot be accounted for upon any proper view of the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.]
    3. SEQUESTRATION (§ 18) — TBIAL OP RIGHT op Property — Judgment Against Claimant.
    Rev. St. 1895, art. 5307, provides that where any claimant of property fails to establish his right to same, judgment shall be rendered against him and his sureties for the value of the property, with interest, from the date of the filing of the bond, and article 5304 provides that if a claimant fails to establish his right to the property, the court shall render judgment for 10 per cent, damages in addition to the value of the property. Held, that these statutes do not authorize the recovery of the value of the rental and hire of the property while held under the claimant’s bond.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. § 18.]
    4. Sequestbation (§ 18) — Trial oe Right oe Peopeett — Judgment Against Claimant.
    As Rev. St. 1895, art. 5310, provides that a claimant, if he elects,' can satisfy the judgment rendered against him for the value of the property, by a return of the property within 10 days, and by paying in addition thereto the reasonable value of the rent and hire of the property while so held under the claimant’s bond, the court should, in rendering judgment for the value of the property, also fix the amount of the reasonable value of the rent and hire of the property.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dee. Dig. § 18.]
    Appeal from District Court, Jefferson County; J. W. Lawhon, Special Judge.
    Proceeding to try title to personal property by W. T. Moore, claimant, against A. P. Rabb, defendant. Judgment for defendant and claimant appeals.
    Affirmed.
    Watts & Wheat, of Beaumont, for appellant. Dougherty & Gordon and P. A. Dowlen, all of Beaumont, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Ren’r Indexes

   REESE, J.

In cause No. 7,707 A. P. Rabb sued B. F. Moore, F. M. Watson, B. B. Watson, T. L. Watson, and W. P. Zindall, to recover the title and possession of a certain boiler and engine valued at $1,200. A writ of sequestration was sued out and levied upon the property, whereupon W. T. Moore filed a claimant’s oath and bond for the trial of the right of property. Issues were made up under direction of the couyt, and a trial without a jury resulted in a judgment for the defendant against the claimant and the sureties on his bond for $1,000, the value of the engine and boiler. The following findings of fact by the trial court are authorized by the evidence, and are hereby adopted:

“First. I find that on March 6, 1907, Catherine Stengele and W. T. Moore, claimant, entered into a written lease contract under the terms of which Catherine Stengele leased to W. T. Moore, for a period of five years, ending December 1, 1911, all lands in the S. Morris league survey known as the Stengele farm, containing about 1,400 acres, together with all improvements on the date located thereon, or to be located thereon during the term of said lease; also an undivided interest in a tract of land out of the Joshua Dyches survey, and known as the Van Worm-er and Stengele lands, containing about 300 acres, more or less, for the purpose of cultivating rice thereon in particular, and for the further purpose of general farm and stock raising.

“Second. I further find that the consideration for said lease contract was the sum of $20,000, evidenced by his certain promissory notes for $4,000 each, of even date with said lease contract, and executed and delivered by W. T. Moore in favor of Catherine Sten-gele; said notes were numbered 1 to 6; note No. 1 was due and payable November 1,1907, and each of said notes was due one year thereafter, repectively, until paid, the last note being due and payable November 1, 1911, each of said notes bearing 8 per cent, interest from maturity, with an additional sum of 10 per cent, on the principal and interest as attorney’s fees in the event default was made in the payment of said notes as they became due, and, further, that the said W. T. Moore gave and granted a first mortgage lien on all of the rice and other farm products raised on said lands, including cattle and other stock, during the life of said lease contract, to secure the payment of said notes.

“Third. I further find that it was agreed between the said Catherine Stengele and W. T. Moore, claimant, that in the event said notes above described were not paid within 15 days after each became due, the said Catherine Stengele should have the right at her option to declare said lease contract terminated and to foreclose her lien, as provided in said lease contract, in which event the said W. T. Moore agreed to vacate said premises.

“Fourth. I further find that Catherine Stengele and W. T. Moore, on the 6th day of March, 1907, made and entered into another contract in writing, under the terms of which the said Catherine Stengele leased to W. T. Moore, for a term of five years, a strip of land 80 feet wide, beginning at Pine Island at a point where the old Cooley pumping station was located, thence southward on the old Cooley right of way through the lands jointly owned by Stengele and Van Wormer, and also through the lands owned individually by said Stengele, for the purpose of building and constructing and maintaining a canal for irrigation purposes for a term of five years, ending December 31, 1911, and under the terms of said lease the said W. T. Moore obligated, agreed, and bound himself to build, construct, and maintain said canal at his own expense during said term of five years, also to erect, build, construct, and operate a pumping plant at his own expense on Pine Island bayou, at or near the old Cooley pumping station, and to furnish and supply all water for the purpose of watering certain rice lands particularly described in said contract.

“Fifth. I further find that Catherine Stengele and W. T. Moore made and entered into a written contract on the 10th day of June, 1907, under the terms of which Catherine Stengele advanced to W. T. Moore the sum of $1,825, as evidenced by the certaih promissory note of W. T. Moore for said sum of even date with said contract, said note bearing interest at the rate of 10 per cent, per annum, and payable on the 1st day of December, 1908, which said sum of money was advanced by Catherine Stengele to W. T. Moore for the purpose of enabling Moore to purchase and install one certain boiler, engine, pump, and equipment at a point on Pine Island bayou where the Stengele canal begins; and I further find that said pump and engine for which Miss Stengele advanced said $1,825 is the property in controversy. And in this connection I find the canal was never completed as provided in the contract of March 6, 1907.

“Sixth. I further find that under the terms of said contract Catherine Stengele gave W. T; Moore the option to renew his lease contract, dated March 6, 1907, for the Stengele farm for an additional term of five years, upon the same^terms and conditions of said lease contract for the Stengele farm as of •date March 6, 1907, provided the terms of said lease contract were fully carried out to the satisfaction of Miss Stengele.

“Seventh. I further find that under the terms of said contract of June 10, 1907, said W. T. Moore bargained, sold, and delivered to Miss Stengele an undivided one-half interest in and to the boiler and engine in controversy.

“Eighth. I further find, under the terms of said contract dated June 10, 1907, that the said W. T. Moore agreed, obligated, and bound himself to cultivate the Stengele farm and operate said Stengele rice canal faithfully and well, according to the terms and stipulations of the lease contract entered into by the parties on the 6th day of March, 1907, and in the event the said Moore should vacate said premises before the expiration of five years, the term of said lease contract, he thereby forfeited all right, title, and interest that he may have had in and' to the boiler and engine in controversy, and that thereupon the said Catherine Stengele should become the sole owner of the property in controversy.

“Ninth. I further find that said contract of June 10, 1907, was intended to further se•cure said Catherine Stengele in the performance of the two lease contracts of date March 6, 1907, on the part of the said W. T. Moore, and in the payment of the notes for the rental of the Stengele farm and the enforcement •of the mortgages executed and delivered by the said Moore to Stengele, and to further secure the said Catherine Stengele in the performance by Moore of all the duties, obligations, and agreements that he had theretofore bound himself to perform, complete, and carry out, and, further, that the said Moore should be entitled to own and possess an undivided one-half interest in the boiler and engine in controversy after operating expenses should have been paid, and after the payment of two notes, one for the sum of $2,009, dated 6th day of March, 1907, and one note for $1,825, dated 10th day of June, 1907, together with all interest thereon in favor of said Catherine. Stengele, or order, subject, however, to the performance of the contracts dated March 6, 1907.

“Tenth. I further find that E. F. Moore, father of claimant, W. T. Moore, was adjudged a bankrupt during the year 1909, and had not secured a discharge from his debts during the year 1907, and for this reason the said E. F. Moore conducted his business for the year 1907 in the name of claimant, W. T. Moore; that while the lease contract of March 6,1907, and the other contracts and notes hereinbefore mentioned were signed by the claimant, W. T. Moore, they were in fact the contracts and obligations of the said E. F. Moore; that all the contracts and transactions during the year 1907, with reference to the farm, canal, and machinery herein involved, were the contracts and transactions of the said E. F. Moore, and the claimant, W. T. Moore, was not, at the time of the filing of claimant’s oath and bond in this proceeding, nor at any other time, the owner of or entitled to the possession of the machinery involved in this suit

“Eleventh. I further find that the property in controversy remained on the Stengele land from the day and date that the Moores abandoned the Stengele farm and canal up to and including the day and date of the execution of the claimant’s oath and bond by W. T. Moore, to wit, the 81st day of January, 1910, and that during said time said property was being claimed by Miss Stengele, and after her death by her independent executors, and that the said Miss Stengele during her lifetime exercised actual control over said property, was in actual possession thereof, and at all times up to her death claimed- to be the owner thereof, and her executors claimed ownership of said property after her death up to the day and date of £he sale of said property by them to the plaintiff, A. P. Rabb.

“Twelfth. I further find that on the 8th day of January, 1910, Hugh Jackson, A. L. Davis, and D. W. Bartholomew, who were then the duly qualified and acting independent executors of the estate of Catherine Stengele, deceased, sold said property in controversy to the plaintiff, A. P. Rabb, with their warranty to the said A. P. Rabb, as such independent executors, warranting the title to the said Rabb in and to the property in controversy.

“Thirteenth. I further find that the reasonable market value of the property in controversy on January 31, 1910, at the hea’d of the Stengele canal on Pine Island bayou, where the property in controversy was situated, when the claimant’s oath and bond was filed, was and is the sum of $1,000.

“Fourteenth. I further find that the reasonable rental value of said property was and is the sum of $5 per day.

“Fifteenth. I further find that Mrs. Catherine, or Catherina, Stengele and Bliss Jeannette Stengele are one and the same person, and that she is dead, and that on January 8, 1910,Hugh Jackson, A. L. Davis, and D. W. Bartholomew had duly qualified and were acting as her independent executors.”

Motion has been made to strike out the assignments of error on the ground that the errors complained of were not embraced in a motion for a new trial, as required by rule 24 (142 S. W. xii), adopted January 24, 1912. The court prepared and filed conclusions of fact and law, which are in the record. Rule 71a, District Court Rules, as amended January 24, 1912 (145 S. W. vii), is as follows : “A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of a trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.” This exception was added by the amendment. We are inclined to agree with the holding of the Court of Civil Appeals of the Fourth District in Am. Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286, that under article 1333, R. S. 1895, a motion for new trial is not necessary to an appeal when the case is tried by the court and conclusions of fact and law prepared and filed. See, also, Greer v. Featherstone, 95 Tex. 654, 69 S. W. 69. The motion is overruled.

By the first assignment of error appellant complains of the 10th finding of fact set out above. W. T. Moore testified that he acquired the property by purchasing it with the intention of using it, and E. F. Moore testified that it belonged to W. T. Moore, but there was an abundance of testimony to show that E. F. Moore was operating in his son’s name, on account of his insolvent condition, and that he was the real owner of the property. The court, trying the facts as a jury, was the judge of the credibility of the witnesses and the weight to be given the evidence, and its findings on the facts will not be disturbed when supported by the evidence. Taking the whole testimony, and not isolated pieces or parcels of it, it was sufficient to authorize the conclusion of fact objected to. The same may be said as to the eleventh conclusion of fact, which is objected to by the second assignment of error.

It is not necessary to set out the evidence. We have examined it carefully, and find that it authorized the conclusion of the trial court. •

We cannot agree with the further contention of the appellant, based upon the evidence, that the great weight and preponderance of the evidence shows that the machinery belonged to the claimant, W. T. Moore, and that the court erred in holding, in its conclusions of law that the appellant was not entitled to a judgment. The court was the judge of the weight of the evidence, and a mere preponderance, or what we might regard as a great weight and preponderance of the evidence against the trial court’s findings of fact, would not authorize this court to set aside such findings. As with the verdict of a jury, it is only when the weight and preponderance of the evidence against such findings, whether by the court or a jury, is so great that it cannot be accounted for upon any proper view of the evidence, and is manifestly wrong, that the appellate court is authorized to take the decision of questions of fact from the trial court or a jury and substitute its own judgment for theirs. There is nothing of that kind to call for any such action in this case. The assignments of error of the appellant must be overruled.

Appellee by cross-assignments complains that the trial court erred in refusing to render judgment for appellee, A. P. Rabb, for $5 per day for the rental value of the property from the date of the filing of the claimant’s bond to the trial of the case, and asks this court to reform the judgment so as to adjudge to appellee, in addition to the $1,000 adjudged to him as the value of the property, together with 6 per cent, interest thereon from the time appellant took possession of the property under the claimant’s affidavit and bond, and 10 per cent, damages, as provided by Rev. St. 1895, art. 5304 (Rev. St. 1911, art. 7787), for all of which the court did, in fact, render judgment, a sum equal to $5 a day from January 31, 1910, to July 6, 1912, as the reasonable value of the rent or hire of the property, as found by the court, which would be in round numbers $4,500. This for the rent and hire of property valued at $1,000. The statute did not authorize the recovery of the value of the rent and hire, but provides only that judgment shall be rendered for the value of the property, with 10 per cent, damages if the claimant fails to establish his right. If the claimant elects to satisfy this judgment by the payment of the amount adjudged, he may do so, but if he elects, which he may do, to satisfy the judgment by a return of the property, he must pay, in addition, the reasonable value of its rent or hire while held by him under the claimant’s bond. For this purpose it has been held that the trial court should, in its judgment, fix the amount of such rent or hire, in order that the claimant may know how much he must pay therefor, in case he elects to satisfy the judgment by a return of the property. R. S. 1895, arts. 5288, 5307, 5308, 5310; Ft. Worth Pub. Co. v. Hitson & Reed, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551; Keating v. Julian, 23 S. W. 607; Teague v. Ryan, 43 Tex. Civ. App. 565, 96 S. W. 936. This the court should have done in this case. But that is not the error complained of. In no event was the appellee entitled to recover by the terms of the judgment, to be enforced by execution, the amount of rent or hire claimed in the assignment, enormous in proportion to the value of the property. The assignment of error does not present the point that the court should have found by the judgment the reasonable value of the rent or hire of the property, for the purpose indicated, nor are we asked to do so. The cross-assignment is without merit, and must be overruled.

There is no error presented requiring reversal of the judgment, which is therefore affirmed.

Affirmed.


text:
    MARSHALL v. SIMMONS et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 30, 1913.)
    1. Highways (§ 118) — Contracts for Construction — Power of County Board.
    Before the passage of the road act of March 31, 1913, giving the highway commissioners of L. county power to contract as to road construction and maintenance, the commissioners’ court of that county could contract with an individual for the transportation of road material, and that the individual should be paid one-half of the difference between the cost under a special agreement with a railroad company and the cost at regular rates.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. § 113.]
    2. Highways (§ 113) — Statutes—Retroactive Effect — Contracts for Construction. The passage of Act March 31, 1913, did not affect lawful contracts made by the commissioners’ court prior to that date.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 848-352, 355; Dec. Dig. f 113.]
    3. Counties (§ 121) — Contracts by County Boards — Requisites.
    Under Rev. St. 1895, art. 1554, requiring the proceedings of the commissioners’ court to be recorded, a contract for the transportation of road materials need not be in writing, provided it was made by the commissioners’ court acting as a municipal body, but it can be proved only by the written proceedings of the court.
    TEd. Note. — For other cases, see Counties, Cent. Dig. § 183; Dec. Dig. § 121.].
    4. Counties (§ 121) — Contracts — Formal Requisites.
    Where the commissioners’ court, on April 8th, entered an order approving a written contract executed that day, which recited that an oral contract containing the same provisions had been entered into on March 3d, the entry of such an order is equivalent to the entry of an order nunc pro tunc by the court to the effect that a contract had been made on March 3d, and is sufficient to establish that contract by the records of the court.
    [Ed. Note. — For other, cases, see Counties, Cent. Dig. § 183; Dec. Dig. § 121.]
    5. Injunction (§ 118) — Pleading — Petition.
    A petition to restrain the carrying out of such a contract, on the ground that it was made subsequent to the enactment of Act March 31, 1913, giving the power to make such contracts to the highway commissioners, which did not deny that the oral agreement was entered of record by the commissioners’ court on March 3d, is insufficient, since a petition for injunction must negative every reasonable inference which might authorize the defendant to do the acts sought to be restrained.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    6. Injunction (§118) — Contracts by County Boards —Failure to Enter on Minutes.
    The petition should also deny that the contract was in fact made on March 3d, since the failure to enter it upon the minutes of the proceedings did not render it void.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.]
    Appeal from District Court, Liberty County; J. Llewellyn, Special Judge.
    Action by J. H. Marshall against I. B. Simmons and others. From an order of the district judge refusing a temporary injunction, plaintiff appeals.
    Affirmed.
    E. B. Pickett, Jr., of liberty, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

This is an appeal from an order of a district judge in chambers, refusing a temporary injunction. There is no brief for appellant nor assignment of errors. The record contains the plaintiff’s petition, the order of the judge, and the appeal bond. The only question presented is whether the district judge erred in refusing the temporary injunction upon the allegations of the sworn petition. Much has to be taken for granted in dealing with the petition. For instance, there is .no prayer for temporary writ. We are left to gather from the order of the court that he refused it.

The plaintiff in the petition is J. H. Marshall, a resident property owner and taxpayer of Liberty county, Tex. The defendants are the county judge and county commissioners, composing the commissioners’ court of said county, the county treasurer, all of whom are named, and W. A. Myrick. Substantially the allegations of the petition are as follows, stating the facts in the order of time:

Under the authority of an election held for that purpose, bonds had been issued and sold to provide a fund for improving the roads of precincts 1 and 4 of said county. The commissioners’ court had entered into a contract with W. D. Haden, by the terms of which Haden was to deliver to the county, for the purpose of improving said roads, 60,000 cubic yards of mud shell. The shell was to be delivered free on board cars at Sabine or West Port Arthur. The flat rate of transportation was 55 cents per ton, but the commissioners’ court made a contract with the T. & N. O. Ry. Company whereby for $100 per day the railroad company was to furnish an engine and crew and 80 flat cars, to be operated by the railroad company in the transportation of the shell. The petition then alleges that on April 8, 1913, the commissioners’ court entered into a certain contract with W. A. Myrick, a copy of which is attached as Exhibit A to the petition, but there are no allegations otherwise as to the terms of said contract. It is stated that the contract is of record in the minutes of tile commissioners’ court. Book 7, pp. 114 to 117. As a part of said exhibit appears the following order of the commissioners’ court:

“The State of Texas, County of Liberty.
“Whereas, the county commissioners’ court of Liberty county, Tex., has this day entered into a written contract with W. A. Myrick, of Jefferson county, Tex., with reference to the transportation of oyster shell from Sabine Pass or West Port Arthur, Tex., for road districts Nos. 1 and 4, Liberty county, Tex.
“Resolved, that the said contract be and the same is hereby approved and confirmed, and is ordered to be spread upon the minutes of this court.
“Recorded Commissioners’ Court Docket Book 7, on pages 114, 115, 116, and 117, at a special session on the 8th day of April, 1913.”

After reciting the contract with Haden and with the railroad company referred to, which latter contract is stated to have been procured by the efforts of Myrick, and stating that the flat rate on said shell was 55 cents per ton, the contract proceeds:

“Whereas, the parties of the first part (i. e., the commissioners’ court), on said 3d day of March, 1913, did enter into a verbal agreement with the party of the second part (i. e., Myrick) in the terms hereinafter set forth; whereas, the party of the second part has been, since the 3d day of March, 1913, engaged in fulfilling and carrying out said verbal agreement and promoting the purposes thereof, and it is' now deemed advisable to reduce said verbal agreement into writing.”

The terms of the contract are then set out, which briefly and so far as is material to a decision of this case, and omitting immaterial details, are as follows: The commissioners’ court employed Myrick to take charge of the operation of the said train in the transportation of the shell, to look after the proper equipment of the cars, and have them properly equipped. Eor his services Myrick is to be paid as follows: After deducting certain expenses, Myrick is to have one-half of the amount that is saved by the county by said contract with the railroad company for cars at $100 per day, being the difference between that amount and the flat rate of 55 cents per ton. If there turns out to be no saving, Myrick is to receive nothing. If the cost should turn out to be more under the contract than under the flat rate, Myrick is to pay to the county the difference, and is to execute in 20 days a bond in the sum of $10,000 to secure the same. It was alleged that on May 13th the commissioners’ court caused to be issued to Myrick two warrants for $1,000, each of which had been paid by the county treasurer. It was alleged that the commissioners’ court had no authority to make said contract with Myrick, and that the same was null and void for the following reasons:

“First. By the terms of said contract the commissioners’ court of Liberty county have entered into a gambling contract with the defendant W. A. Myrick, and that said defendants, heretofore alleged to have entered into said contract, have used the funds of road districts Nos. 1 and 4 for an illegal and unlawful purpose.

“Second. Said contract is null and void because it is against public policy, and indirectly gives to the defendant W. A. Myrick a rebate on the freight charges of hauling shell from Sabine Pass to the county of Liberty, which is contrary to the laws of this state.

“Third. Said contract is null and void because the commissioners’ court were without authority, on the day and time of the said agreement and contract so entered into with the defendant W. A. Myrick, to make any contracts for or on behalf of road districts Nos. 1 and 4. for the reason that the Thirty-Third Legislature of the state of Texas enacted a special road law for Liberty county, which went into effect on the 31st day of March, A. D. 1913, and that by the terms of said special road law for Liberty county the making and entering into of contracts by or on behalf of any road district was conferred upon another agency, to wit: A county road superintendent and eight highway commissioners. Section 14 of the said special road law provides: ‘That the highway commission in the construction, maintenance or repair of any public or any part of any public road or roads or bridges in said county, or any defined road district therein, shall have all such work done by contract; all contracts for the building of any bridge or the improvements of any road or the purchase of any material, shell, gravel, or the purchasing or doing of anything whatsoever on, upon, or for a public highway shall be awarded to the lowest responsible bidder, after sealed bids have been invited and advertised for; that bids for the doing of anything whatsoever upon the public highway shall first be invited by publishing a notice or notices in some newspaper in the precinct or defined road district, where the contract for work is to be performed.’ That said contract is hereto attached and marked Exhibit A; that the performing of said duties and obligations contained in said contract, which is hereto attached and marked Exhibit A was not advertised for as provided by section 14 of said special road law, and that no. notice or notices were published inviting said bids as required by said act.”

It was further alleged that at the suit of one F. A. O’Neil a mandamus had been granted by the district court, ordering the said members of the commissioners’ court to or'der an election for county road superintendent and eight highway commissioners, as provided in said act; that the respondents have prosecuted an appeal from said order purely for delay, and to enable the county commissioners to expend the county funds and carry out the said contract with Myrick. The judgment in the mandamus proceeding is set out as an exhibit to the petition. In his order refusing the injunction, the judge gave as his reasons that the contract was a valid contract within the power of the commissioners’ court to make; that it was not a gambling contract, but rather one of insurance whereby the commissioners’ court sought to insure the county against a possibly heavy expense in the shipment of the shell, and at the same time giving itself an opportunity possibly to reduce the expense. No reference is made to the effect of the said special road law for Liberty county, referred to in the petition. The injunction prayed for was to restrain all parties from carrying out said contract.

Unless their authority was affected by the said road law (as to which later), the contract, no matter how improvident and disadvantageous to the county and advantageous to Myrick, in the absence of actual fraud, which is not charged, was one which the commissioners’ court had the power to make. That it seems to have been an exceedingly advantageous contract to Myrick, as shown by the payment of the $2,000 to him, while it might be a serious reflection upon the business judgment of the members of the commissioners’ court, for which the remedy is elsewhere than by appeal to the district court, does not affect the question of the power of the court to make it, and having made it to carry it out.

The question remains as to how this power of the commissioners’ court was affected by the passage of the special road law. The special road law was passed ,by the Thirty-Third Legislature with the emergency clause, and went into effect on the 31st of March, 1913, according to the allegations of the petition. Assuming that it from this time took away from the commissioners’ court the power to make such a contract as, the one here referred to, it is not contended, and could not be contended, that it affected lawful contracts made by the commissioners’ court, with regard to roads, before the passage of the act.

The written contract made after the passage of the act on April 8, 1913, is only, as appears on its face, a reduction to writing of a verbal contract, embracing the identical terms of the verbal contract entered into by the commissioners’ court with W. A. Myrick on March 3, 1913. This is stated in the written contract, which is by formal order of the commissioners’ court on April 8th approved and ordered spread upon the minutes of the court, which was done. This contract was not required to be in writing, provided it was made by the commissioners as a municipal body. The statute requires that the proceedings of the commissioners’ court shall be recorded in a book kept for that purpose. R. S. 1895, art. 1554. It has been held that the evidence to establish a contract, which could only obtain legal sanction from the action of the commissioners’ court, must be contained in the written proceedings of the court. Polly v. Hopkins, 74 Tex. 145, 11 S. W. 1084; Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637.

As to the effect of a failure to record an order properly made by the commissioners’ court, however, the law seems to be settled by the Supreme Court in Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000, following Brown v. Ruse, 69 Tex. 589, 7 S. W. 489, and holding that a failure to enter an order made by the commissioners’ court on its record does not render such order void. Waggoner v. Wise County, 17 Tex. Civ. App. 220, 43 S. W. 836; Whitaker v. Dillard, 81 Tex. 363, 16 S. W. 1084; Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S. W. 1047; Jackson-Foxworth Lumber Co. v. Hutchinson County, 88 S. W. 412.

With regard to allegations necessary in a petition for injunction, the rule is stated in Gillis v. Rosenheimer, 64 Tex. 246, that “the petition must negative the fact that the defendant may have the right or remedy, the exercise or assertion of which is disputed, and which a court of equity is invoked to prevent him from maintaining. The petition for injunction should state all, and negative all, which is necessary to establish a right.” Quoting from Harrison v. Crumb, White & W. Civ. Cas. Ct. App. § 992: “The rule of pleading that the statements of a party are to be taken most strongly against himself is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to-negative every reasonable inference arising upon the facts so stated; from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.”

Applying these principles of law to the allegations of the petition, it appears that the commissioners’ court entered upon its minutes, on April 8, 1913, an order approving the written contract executed on that day between that body and W. A. Myrick, and ordering the contract to be entered upon the record of its proceedings, which was done. This written contract recites that a verbal contract had been entered into between the commissioners’ court and Myrick on March 3, 1913, identical in its terms with the'written contract, but that it was thought advisable to reduce such verbal contract to writing. This showed by the records of the court that such verbal contract had been made by the court (as a municipal body), on the day named. It was equivalent to an entry nunc pro tunc of such action by the court But this is not all; it is not denied that this order was duly entered of record at the time it was made, which would have complied with the strictest requirements of the law. Seeking to enjoin the carrying out of the contract by injunction, on the ground -that it was void, under the rule above quoted, it was necessary for the plaintiff to specifically negative this fact.

Again, the petition does not negative the fact that such contract was in fact made, as stated by the court, on March 3, 1913, and even if not entered upon the records then such failure would not render the contract void, under the authority of Ewing v. Duncan, supra, and other cases cited. It necessarily follows that the plaintiff has failed to negative supposable facts which may have existed, the existence of which is suggested by the petition, and which would have made the contract one entirely within the power of the commissioners’ court to make, at the time it was made, regardless of the effect of the special road law for Liberty county referred to, and which took effect March 31, 1913. In this view of the case it is not necessary to pass upon the question as to whether, after the passage of of that act, the commissioners’ court had authority to make the contract referred to, or as to the constitutionality of such act.

Under the allegations of the petition the district judge did not err in refusing to grant the temporary injunction, and his order must stand.

Affirmed.


author: PLEASANTS, C. J.

text:
    SACHS v. GOLDBERG.
    (Court of Civil Appeals of Texas. Galveston.
    June 6, 1913.
    Rehearing Denied June 19, 1913.)
    1. Trusts (§ 44) — Evidence—Sueetcienct.
    In an action to enforce a trust in land purchased by defendant, evidence held sufficient to sustain a finding of an oral agreement between plaintiff and defendant that, if either bought the land, it was to be for the benefit of both.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 66-68; Dee. Dig. § 44.]
    2. Trusts (§§ 17, 18) — Creation — Parol Trust.
    An oral agreement between two persons to purchase land jointly created a trust in the land when purchased by one of the parties under the agreement in favor of the other party notwithstanding-the statute of frauds.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. §§ 17, 18.]
    3. Trusts (§ 35) — Creation—Violation of Agreement.
    Where two persons agreed to purchase land jointly, a trust in such land, when subsequently purchased by one of them, arose in favor of the other, although the purchaser had repudiated the agreement and purchased in open and positive defiance thereof, since he could not by repudiating the agreement divest himself of his obligations thereunder.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 45-50; Dee. Dig. § 35.]
    4. Trusts (§ 59) — Oral Agreement^ — Mutual Rescission — Acts Constituting.
    Where plaintiff and defendant agreed to purchase a lot jointly, but before the purchase defendant unequivocally repudiated the agreement, and plaintiff thereupon told him he could have the lot, this constituted a mutual abandonment and renunciation of the agreement, preventing plaintiff from acquiring any rights under a subsequent purchase by defendant, although plaintiff was mad and did not know what he was saying when he told defendant he could have the lot.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 78-81; Dec. Dig. § 59.]
    5. Courts (§ 121) — Jurisdiction — Amount Involved.
    In trespass to try title to a lot leased by plaintiff and defendant and on which was a building owned by them, the court had jurisdiction of a cross-bill by defendant, claiming to-be sole owner of the lot, for one-half of the rent, although the value of the building was not shown and the amount of the rent was below the court’s jurisdiction, since the cause set up-in the cross-bill arose out of and was connected with the cause asserted by plaintiff, and, the court having jurisdiction of plaintiff’s suit, its jurisdiction extended to all matters connected with the subject-matter thereof.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426, 42S, 450, 452, 458, 459, 460; Dec. Dig. § 121.]
    Appeal from District Court, Jefferson County; I. W. Lawlion, Special Judge.
    Action by B. Sachs against A. Goldberg. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    See, also, 135 S. W. 600.
    Joe Williams, of Port Arthur, and Dough-erty & Gordon, of Beaumont, for appellant. Geo. C. Greer and Minor & Minor, all of Beaumont, for appellee.

      For other oases see same topic and section NUMBER in Doc. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   PLEASANTS, C. J.

This suit was brought by appellant against the appellee to recover an undivided one-half interest in lot No. 1, block No.' 138, in the city of Port Arthur.

In addition to the usual allegations in a suit of trespass to try title, plaintiff’s petition alleges, in substance, that on May 14, 1910, plaintiff and defendant became joint owners by purchase of a building situated on the lot before described and are now the joint owners of said building; that soon after the purchase of said building “plaintiff and defendant made and entered into a certain agreement, whereby it was agreed that plaintiff and defendant would negotiate and consummate a purchase of said lot upon which the said house was located from the owner thereof, and that the said purchase when negotiated and consummated by either the plaintiff or the defendant should inure to the benefit of both plaintiff and defendant, and the plaintiff and defendant were to become joint owners of the said lot, each to own an undivided one-half interest therein when the said purchase of the said lot was consummated, and the title to the said lot was to be taken in the name of the plaintiff and the defendant as joint owners thereof” ; that on December 9, 1910, defendant purchased said ■lot from the owner thereof, J. S. White, for the sum of $5,000, paying $500 in cash and the remainder to be paid in nine installments •of $500 each, evidenced by vendor’s lien notes, and without the knowledge of plaintiff took the title in his own name, in violation, of -said agreement with plaintiff, and refuses to .recognize said agreement and convey to plaintiff, upon payment of his one-half of said purchase money and assumption of one-half ■of said notes, an undivided one-half of said lot. Plaintiff tendered into court the sum of $250, one-half of the cash payment made by the defendant on said lot, and offered to assume one-half of said purchase-money notes, ■and prayed “that defendant be forced to accept from plaintiff the said sum of $250 .and interest hereinbefore tendered to the defendant, and that it be decreed by this court that upon plaintiff becoming bound for the payment of one-half of said vendor’s lien notes the defendant holds in trust for plaintiff the equitable title to an undivided one-.half interest in said lot, and that plaintiff recover of and from the defendant both the .legal and equitable title to an undivided one-half of the lot hereinbefore described, and all costs of this suit, and for any other and further relief to which he may be entitled in law or equity.”

The defendant answered by general demurrer and general denial and plea of not guilty. He further answered by cross-bill against the plaintiff in which it is alleged that, when plaintiff and defendant purchased the building upon said lot, they also purchased from H. A. Gottlich, from whom they purchased :said building, a lease held by him on said lot from J. S. White, the owner thereof, which lease was transferred by the written consent of the said White; that said lease was for a term of three years from April 2, 1909, and provided for the payment as ground rent for said lot of the sum of $150 per year, and to secure the payment of said rent a lien was •expressly given in the lease upon said building. “Defendant further alleges that heretofore, on, to wit, December 9, 1910, this defendant purchased from the said owner, J. S. White, who held and owned the fee-simple title to said lot from and under the sovereignty of the soil, and the latter then conveyed to the defendant, A. Goldberg, the fee-simple title to said lot; and defendant has ever since owned and still owns said lot in fee-simple, and is entitled to collect and receive the said ground rent accruing after December 9, 1910, at the rate of $150 per annum, payable quarterly in advance as specified in said lease, during the time when said lease was in force and effect, and have a lien on said building to secure any part thereof, in the event of default. Plaintiff herein, B. Sachs, has hitherto failed and refused to pay to defendant the one-half of said ground rent accruing, after December 9, 1910, for which he is justly liable, urging as an excuse or justification for not paying said rents the contention or claim that he is the owner of, or equitably entitled to, one-half interest in said lot, upon the alleged ground that defendant agreed with plaintiff to buy said lot for the joint account or benefit of both parties, so that plaintiff would have half interest therein, or that some agreement to this effect was entered into between the parties hereto. Defendant specially and positively denies that there ever was any such agreement, and especially denies that when he purchased and procured said deed he was under any agreement or understanding with plaintiff to buy any interest in said lot, either for or with him, or to take any conveyance to himself for the benefit or use of said plaintiff, or to acquire any interest in said lot in trust for plaintiff. On the contrary, plaintiff, shortly before said deed to defendant was made, requested of defendant to let plaintiff join defendant in the equal purchase of said lot," which request defendant positively and unequivocally refused; and thereupon plaintiff violently abused and assaulted defendant, and left his presence with the expression, in substance, that ‘you (meaning defendant) can have the lot; I don’t want it’; and after this altercation and declaration, the deed was forthwith made to defendant alone, there being no agreement whatsoever for a joint purchase. But, on the contrary, defendant alleges that before any title or interest in the land vested in defendant there was an express refusal and renunciation -by said defendant of any agreement or understanding for a joint purchase, if any such agreement or understanding had ever existed, and plaintiff likewise renounced and abandoned such agreement, if any there ever was. Defendant, however, especially denies that he ever at any time agreed to a joint purchase of said lot, and alleges that by reason of the facts hereinbefore stated plaintiff did not and could not have relied on defendant to buy a half interest for plaintiff at the time of the transaction. Defendant specially alleges that all that ever passed between plaintiff and defendant was verbal, and defendant here now pleads the statute of frauds in bar of any effort to. make any alleged verbal understanding or agreement the basis of a title to said lot or any interest therein. Wherefore, premises considered, defendant prays that plaintiff take nothing by his suit, and that defendant may go hence without day and recover all costs by him in this behalf incurred; that defendant, A. Goldberg, may have judgment against plaintiff, B. Sachs, for title to and possession of said lot, and for one-half of the ground rent due and unpaid on said lot, in accordance with the terms of said lease, and for a foreclosure of defendant’s lien upon the half interest of said plaintiff in said leasehold right and building, and for the sale of the same under the law to satisfy and pay said ground rent due by said plaintiff to said defendant, as hereinbefore set out; and defendant prays for such other and further relief, general and special, in law and in equity, to which he may be entitled.”

Appellant by supplemental petition denied all of the averments of appellee’s answer, and especially denied that he made the statement abandoning or renouncing his rights under his contract with appellee, as alleged in ap-pellee’s answer. He further alleged that the interest of the parties in and to the contract was mutual, and, if he did make the statement or declaration alleged to have been made by him, that said statement simply amounted to a parol waiver or release of his rights under the contract and was without consideration and void. Appellant further alleged that the statements made by him did not amount to a renunciation or abandonment in law, and further that appellee, by his own •wrongful acts and conduct, prevented appellant from fulfilling and carrying out his promise and contract, both before and after the execution of the deed to the property by White to Goldberg, and further that there never was a mutual abandonment or renunciation of the contract between the parties, and appellee never understood nor treated any statements made by appellant to him as such. Appellant further alleged that at all times he was actually engaged in good faith iu attempting to perform his contract according to the terms thereof, and by his attempted performance of said contract he was emphatically maintaining the terms thereof. He further alleged that any statement or declaration made by him was not intended as a renunciation of his rights under said contract and was never considered as such by appellee; that the statements he did make were made under the stress of anger and excitement caused by an affray between appellant and appellee, were neither treated nor acted upon as an abandonment or renunciation by appellee, and appellant further alleged that he immediately retracted said statement, at all times thereafter offering to fulfill his promise and compel appellee to carry out the terms of said contract, and that no rights inconsistent with appellant’s retraction had been acquired by appellee after said retraction, and that appellee carried out his contract with White after the alleged statements by appellant without varying the terms thereof in any particular from those theretofore agreed upon between himself and White, and that the status and legal rights of the parties were not changed in any particular by reason of any declaration alleged to have been made by appellant. Plaintiff further alleged that prior to any difficulty between them, and before any statement had been made by him, Goldberg had paid White the cash consideration for the property.

Upon the trial in the court below the jury were instructed to return a verdict for defendant for the title to the land in controversy and for one-half of the ground rent due on said lease since January 1,1910. Upon return of this verdict judgment was rendered in favor of defendant against plaintiff for the title to the lot, and for the sum of $108.25 ground rent, with foreclosure of lien on plaintiff’s one-half interest in the building.

The evidence is sufficient to sustain a finding that plaintiff and defendant made an oral agreement to purchase the lot jointly, as alleged in plaintiff’s petition. Upon this issue plaintiff testified: “Mr. Goldberg and I talked together, not one time, but many times, whenever the time comes to buy the lot, we will buy it together. About seven or eight months before he bought the lot, I told him to write to Mr. White and find out, and in fact he told me that he did write, and Mr. White said if he would sell the property he would never sell it to anybody but us, and he said he got a letter from Mr. White that he was going to be there between the 5th and 10th of December. Mr. Goldberg told me that lot could be purchased for $5,-000. I said it was too much, but we had better purchase it because we owned the building. * * * At the time X had the conversation with Mr. Goldberg, when he stated what Mr. White wanted for the lot, I told him we would buy it because it was worth more to us than anybody else, because we had the building on it, and he said, ‘Of course, we will have to take it’; he says just that way. We was just waiting for the time for Mr. White to come to buy it. * * * I can’t fix the date exactly of the conversation I had wiih Mr. Goldberg in which I say we both agreed to purchase this lot for $5,000. It was when we first bought the property, we talked together to buy it together, and it was a half dozen times we talked to buy it when the time come so the property could be sold, because we were under the impression that the property belonged to minors.”

It is understood that before the lot was-purchased by defendant he denied or repudiated this agreement and refused to let plaintiff have a half interest in the lot. At the time this denial or repudiation of the agreement was made by defendant he had no binding contract with the owner of the lot for-its purchase.

Plaintiff testified that on the day defendant purchased the lot he had a conversation, with the defendant in the latter’s store in. which defendant told him that he wanted the' lot for himself; that he then went to the-office of Mr. Rutan and saw Mr. White and was told by him that he had made a trade-with Goldberg but was willing for plaintiff to have a half interest in the lot. Plaintiff' then got Mr. Rutan to telephone for Goldberg. As to what occurred after Goldberg came to. Rutan’s office plaintiff says: “Mr. Goldberg: came in with his cheek in his hand, and I spoke to him, and X asked him, and he said: ‘I want the lot myself. When I get it I will see about it afterwards. I may let you have it.’ So, of course, that made me mad and I cursed him. We had a difficulty, and I walked out and told him he could have the lots, just that way; I didn’t know what I was saying.” On cross-examination he says: “After he refused to let me have a half interest, I jumped on him and hit him. It angered me because he lied to me. Xle told me Mr. White wasn’t in town. After we were talking there, he made me so mad; I didn’t think he did right; I just whipped him and told him to go to hell with it. That’s what I said when I left. I said, ‘Go to hell,’ just that way. I just said that I told him he could have the lot. I didn’t say I didn’t want it.”

Plaintiff was at all times ready and willing to pay his half of the purchase money for said lot upon the terms upon which the lot was sold to defendant, and a day or two after the sale to defendant again made tender to defendant of his one-half of the money and demanded the right to a half interest in the property.

It would serve no useful purpose to discuss in detail the various assignments of error presented in appellant’s brief.

The first question presented for our determination is whether the oral agreement between plaintiff and defendant to purchase the lot jointly created an express trust in favor of the plaintiff against the title acquired by the defendant to an individed one-half of the lot which can be enforced by the plaintiff notwithstanding the fact that before the purchase by the defendant he had repudiated said agreement. If there had been no denial or repudiation of the agreement prior to the purchase by the defendant, and the property had been bought under the agreement, a trust would have immediately arisen in favor of the plaintiff, and the enforcement of such trust would not contravene the provisions of our statute of frauds. This was the decision in the cases of Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Allen v. Allen, 101 Tex. 362, 107 S. W. 528; and Lucia v. Adams, 36 Tex. Civ. App. 454, 82 S. W. 335.

Appellee concedes that this is the law, but contends that in order to enforce a parol trust in land the facts must show that the defendant purchased under and in accordance with a prior or contemporaneous agreement to hold the land or some interest therein for the benefit of plaintiff, and that a purchase in open and positive defiance of such agreement does not create a parol trust in the land so purchased. This contention is based on the assumption that, if the agreement to purchase jointly with another is repudiated by the purchaser before he acquires the title, such purchase cannot be said to be in accordance with or under the agreement. To the extent that this assumption involves the proposition that the repudiation or denial of an agreement by one of the parties thereto destroys or terminates the agreement it is manifestly unsound. Unless there was a mutual abandonment or renunciation of the agreement prior to the purchase by one of the parties, the agreement must be regarded as subsisting at the time the purchase was made, and it would seem that the purchaser would not be permitted to say that he did not purchase under the agreement. He could not by a repudiation of the agreement divest himself of his obligations thereunder, and as -long as these obligations existed they would give rise to a parol trust in any land purchased by him to which the agreement applied.

We are of opinion, however, that the-evidence shows a mutual abandonment and renunciation of the agreement before the defendant purchased the lot. There can be no-question of the unequivocal and absolute denial and repudiation of the agreement by the defendant. His positive refusal to recognize the agreement so angered the plaintiff that, according to plaintiff’s own testimony, he jumped on defendant and whipped him and told him to go to hell with the lot. Plaintiff also testified that after this difficulty with the defendant he walked out and told defendant he could have the lot. All this occurred before the defendant purchased the lot. We cannot see how there can be any doubt that this was a mutual abandonment of the agreement to purchase the lot jointly. The fact that the defendant was mad when he told plaintiff he could have the lot, and that he now testifies that he did not know what he was saying, does not destroy the effect of his declaration. We think it clear that if defendant, after having purchased the lot, had repented of his repudiation of the agreement and sought to hold1 plaintiff to said agreement and required him to pay one-half of the purchase money and take a one-half interest in the property, plaintiff could not be held bound by the agreement. If plaintiff was no longer bound by the agreement, the defendant should not be held bound thereby.

The evidence showing the mutual abandonment of the agreement prior to the purchase by the defendant being undisputed, the trial-court did not err in instructing the jury to-return a verdict in favor of the defendant

There is no merit in appellant’s contention that the trial court was without jurisdiction to hear and determine defendant’s plea for the recovery of one-half of the ground rent due on the lot and the foreclosure of the lien, given to secure said rents, on plaintiff’s one-half interest in the building on the lot. The ground of this contention is that the value of the building being neither alleged nor proven, and the amount of the rents claimed being below the jurisdiction of the court, it had no jurisdiction to hear and determine the plea.

The cause of action set up in the plea, arose out of and was connected with the cause of action asserted by plaintiff, and, the court having jurisdiction of plaintiffs suit, such jurisdiction extended to all matters connected with the subject-matter of the suit, and it is immaterial that the amount claimed by the defendant in his cross-aetion was below the jurisdiction of the court. Stacy v. Campbell, 45 S. W. 759; Smith v. Wilson, 18 Tex. 24, 44 S. W. 556.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.