author: LANE, J.

text:
    BLUMENTHAL et al. v. NUSSBAUM et al.
    (No. 7273.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1917.
    Rehearing Denied March 29, 1917.)
    1. Teespass to Try Title <&wkey;32 — Pleading —Equitable Title.
    In trespass to try title, it is not necessary for plaintiff, who relies on an equitable title, to plead specifically the facts on which his title is based; customary allegations in suits of trespass to try title being sufficient to authorize proof of any fact tending to establish title.
    [Ed. Note. — For other cases, see Trespass to-Try Title, Cent. Dig. §§ 39-41.]
    2. Trusts <&wkey;8G — Resulting Trust — Burden of Proof.
    In suit to establish a resulting trust, the burden of proof to establish that any trust funds were used in paying for the land is on plaintiff, pleading equitable title.
    [Ed. Note. — For other cases, see Trusts, Cent. ■Dig. § 128.]
    3. Trusts &wkey;>89(5) — Resulting Trusts — Degree of Proof.
    Proof, to establish a resulting trust in land, must be clear and satisfactory, and with a reasonable degree of certainty must trace the trust funds into the payment for the land.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 137.]
    4. Appeal and Error <&wkey;1001(l) — Review-Evidence.
    The rule that new trial will not be granted, or judgment reversed and cause remanded, where there is a scintilla of evidence to support verdict, does not prevail in Texas.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933.]
    5. Trusts <&wkey;89(5) — Resulting Trusts — Proof.
    In suit to establish a resulting trust in land, plaintiffs must disclose all the facts and circumstances connected with the transaction in question, so as to make it manifest that the remedy they ask is just and equitable. It must be made to appear that it is inequitable to withhold the relief they seek; for, if the equities are nearly balanced, the legal title will not be disturbed.
    [Ed. Note. — For other eases, see Trusts, Cent. Dig. § 137.]
    6. Trusts <&wkey;89(2) — Resulting Trust — Sufficiency of Evidence.
    In suit to establish a resulting trust, evidence held insufficient to show that a one-half undivided part of the land belonged to the plaintiffs by reason of their father’s using, in the purchase of the land, funds belonging to the community estate of himself and his first wife, plaintiffs’ mother.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 135.]

      7. Trusts <&wkey;87 — Resulting Trust — Suit to Establish — Evidence.
    In suit to establish a resulting trust in land, where plaintiffs base their right to recover on the ground that their father, after his sefcond marriage, invested in the land funds belonging to the community estate of himself and his first wife, plaintiffs’ mother, and that he had the land deeded to his second wife, the father’s voluntary petition in bankraptcy, filed before his second marriage, a certified copy of the decree adjudging him a bankrupt before such date, and a certified copy of his discharge in bankruptcy were admissible, as tending to show that previous to his second marriage the father had no assets belonging to the community estate of himself and first wife.
    [Ed. Note. — For other cases, see Trusts, Gent. Dig. § 129.]
    8. Adverse Possession <&wkey;114(l) — Evidence.
    Evidence of adverse possession by*the father held not undisputed, so as to require judgment against plaintiffs.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ G82, 683.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by S. J. Nussbaum and another against Joe Blumenthal and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Wagner & Wagner and Otto Taub, all of Houston, and James B. Stubbs, of Galveston, for appellants. Carothers & Brown, of Houston, for appellees.
   LANE, J.

This suit was originally brought by S. J. Nussbaum and Meyer P. Nussbaum against P. 8. Nussbaum, Joe Blumenthal, Bertha A. Blumenthal, Henry Nussbaum and wife, Sarah, and Mollie Saper and husband, S. Saper, for a one-half undivided interest in lots 4 and 5, in block 126, situated on the south side of 'Buffalo Bayou, in the city of Houston, and for a partition of the same between those owning an interest therein. They allege, however, that P. S. Nussbaum owns a one-third life estate in said lots, and pray that said partition be made subject to such life estate.

Defendants answered by general demurrer and general denial, and by special averments say that said property was the separate estate of Mrs. Augusta O. Nussbaum at the time of her death; that by her will, which was duly probated on or about the 23d day of December, 1902, Mrs. Augusta O. Nuss-baum bequeathed all of said property to the defendants Bertha Blumenthal, Henry Nuss-baum, and Mollie Saper, and that by virtue of said will and its probate said defendants own a fee-simple title to all of said property, subject only to a lien thereon created by said will to secure the payment of $250 and $150 bequeathed by said will to M. P. Nussbaum and S. J. Nussbaum, respectively, to be paid upon the death of defendant P. S. Nussbaum. They further say that, if plaintiffs ever owned any interest in said land, they are now barred by the statutes of limitation of three, five, and ten years; that they knew of the existence and provisions of said will of Mrs. Augusta C. Nussbaum at or about the time of its probate, and knew that defendants were Claiming and holding said property adversely to them; and that plaintiffs are therefore now barred from recovery herein under the statutes of limitation pleaded by defendants. They pray that the cloud cast upon their title to said lots be removed by a decree of the court.

By supplemental petition plaintiffs alleged that at the time of filing their suit and for a long time prior thereto they had been and are still the owners in fee simple of ;an undivided one-half interest in said property, and renew their prayer set out in their original and amended petitions, and for judgment against all the defendants for title and possession of their said one-half interest in said property, for writ of possession, etc.

For the purpose of more clearly presenting the nature of the case and the contention of the parties, we deem it appropriate in the outset to make the following statement:

P. S. Nussbaum, one of the defendants herein, was married to his first wife, Ernestine, in 1S60. During this marriage he was engaged in the mercantile business in the city of Houston with his brother, I. Nuss-baum, under the firm name of S. Nussbaum & Bro. This firm had in Houston a fairly good stock of merchandise, the value of which is not even approximately shown by the evidence. In 1867 the yellow fever was epidemic in Houston, and said firm removed a portion of their stock of merchandise to Huntsville; the value of same being in no way shown. In the fall of 1867 Ernestine Nussbaum died of yellow fever at Huntsville, and left, surviving her, her husband, P. S. Nussbaum, and her two sons, M. P. and S. J. Nussbaum, plaintiffs herein. About the 1st of March, 1S68, the firm of Nussbaum & Bro. dissolved partnership; P. S. Nussbaum taking as his part of the assets the stock of goods in Huntsville. After the death of his wife, Ernestine, P. S. Nussbaum sold about $500 or $600 out of his said stock of goods in the regular course of business and used the proceeds thereof for the support of himself and two sons. Some time in 1868, P. S. Nuss-baum, being in debt, removed what remained of his stock at Huntsville to Navasota, together with other goods purchased by him on credit in the name of one Hirshberg. With the stock last mentioned a business was carried on in Navasota for eight or ten months Under the name of A. Hirshberg. In the spring of 1869 the stock of goods at Navasota was removed to Calvert, and there the business continued under the name ot Hirshberg. The stock of goods in Calvert burned some time in 1870; date not shown by any evidence. Thereafter $2,250 insurance was collected on said burned stock and was reinvested in another stock, and the business was resumed and conducted as before the fire. P. S. Nussbaum testified that shortly after he had purchased his new stock and began business he had another fire, which destroyed his entire stock, except about $25 worth of goods, which he sold, and as he had no insurance on this last stock and no money he did not resume the mercantile business in Calvert. This testimony stands in the record undisputed.

Defendant P. S. Nussbaum married Augusta, his second wife, on the 22d day of February, 1S70. On the 24th day of May, 1871, he purchased the lots in question for a recited consideration of $1,500 cash, and the same were conveyed to Mrs. Augusta C. Nussbaum, his second wife. In September, 1902, P. S. Nussbaum executed a deed by which he conveyed all interest he had in said lots to his wife, Augusta, for a recited consideration of $10 and in view of the fact that the purchase money therefor was paid with her separate funds. In the latter part of 1871, or early part of 1872, he and his family moved upon said lots and made the same their homestead, and have at all times since lived upon the same as such homestead. Mrs. Augusta C. Nussbaum died on the 11th day of December, 1902, and left a will, which was duly probated in 1903, by which she bequeathed the lots in question to her children, Mollie Saper, Bertha Nussbaum, and Henry Nussbaum, defendants herein, subject to certain legacies named in said will.

Mrs. Rebecca Nussbaum, wife of I. Nuss-baum, former partner of P. S. Nussbaum, with reference to the value of the stock of merchandise owned by P. S. Nussbaum in Huntsville in 1867, testified that she could not say exactly what the value of such goods were when they were taken to Huntsville by P. S. Nussbaum & Bro., but that she knew it was a pretty good stock, because they ran a large stock in Houston; that the stock taken to Huntsville was enough to start a good-sized store there. She further testified that their business was pi-etty good in Huntsville. She also testified that P. S. Nussbaum was not conducting a store in Calvert in his own name, because he was adjudged a bankrupt, but the business was conducted under the name of Hirshberg, but belonged to Nuss-baum; that the stock of goods he had in Calvert was the same he moved from Nava-sota ; that Nussbaum left Calvert in 1871.

J. H. Drennan testified that P. S. Nuss-baum began business in Calvert in the summer or fall of 1869; that he carried a stock of about the value of $4,000 or $5,000; that during the time Nussbaum was in Calvert, from 1869 to 1871, he would judge his stock was about the same in value.

Plaintiff S. J. Nussbaum testified that he was born in 1806; that, while he lived with his father and his second wife, Augusta, his father, P. S. Nussbauim., told him in the presence of Mrs. Augusta Nussbaum that he and his brother, M. P. Nussbaum, had a one-half interest in the lots in question from their deceased mother; that Mrs. Augusta Nuss-baum made no denial of this statement; that his father made another statement in the year 1892 in the presence of Mrs. Augusta Nussbaum, and told him at that time that he and his brother would get their share of the place.

M. P. Nussbauim, the other plaintiff, testified that he heard his father, P. S. Nussbaum, tell Mrs. Augusta Nussbaum, when he was nine years of age, that he and his brother, S. J. Nussbaum, had a one-half interest in the lots in question, and' later he heard his father again tell Mrs. Augusta Nussbaum that he and his brother owned a one-half interest in said lots. He further testified that he had several conversations with Mrs. Augusta Nussbaum when he was about eighteen years of age about his interest in said lots, and that she stated to him that she was satisfied that he and his brother owned one-half interest in said lots.

Defendant P. S. Nussbaum testified by deposition, among other things, as follows:

“I bought the property that is in question in this case in 1871. I am now shown the deed from John McGill and Mary McGill to A. C. Nussbaum, dated May 24, 1871, conveying lots 4 and 5, in block 126, of the city of Houston, Tex., on the corner of W.alker and Crawford streets (which is the property in question). A. C. Nussbaum was my second wife. I married her on Washington’s Birthday, February 22, 1870, in Calvert. I made the trade myself with McGill for the property in question. At the date of the deed, May 24, 1871, I was living in Calvert. I bought this property in Houston because we wanted to move back; we did not want to live in Calvert." The money with which I bought the property in question came from the money I made in cotton. I sent 100 bales of cotton to Galveston to Focke, Wilkens & Lange, and then sent 38 bales of cotton to some parties in Houston. I brought cotton to Houston to Monheim Jacobs. When I came from Calvert, in order to buy the home (the property in question), I brought some samples of cotton with me, 10 or 12, and Monheim Jacobs bought from me about 8 or 9 bales; I do not remember exactly. I paid 5 cents for cotton and got about 8 or 9 cents for it. Cotton buying and merchandising was where I made the money at Calvert. I moved to Calvert in 1SC9, I believe. I went from Huntsville to Navasota 12 months after my wife died — not just after she died. I did not have any stock of goods; only the Huntsville goods. I took what stock I had to Navasota. I bought this cotton after I got into business. I bought it with money I made from the business. I did not buy 100 bales at one time. I bought a bale to-day. If I sold a little goods, I bought a bale, 2 bales, or 5 bales. Of course I moan to say that I bought that cotton right out of my business. None of these brokers or cotton factors from Galveston advanced me anything at all. I bought everything out of my business. I shipped to Focke, Wil-kens & Lange at one time as much as 100 bales of cotton. I bought it for 5 cents, sometimes: very cheap. I do not know how much I sold it for; I believe it brought me 12% cents. I cannot tell exactly when it was that I sold that cotton; it was in 3870 or 1871; I think it was in 1871. When I bought that cotton, I kept it until I shipped it, until I had 100 bales. I did not go out on the street and buy cotton. They came around. When a man brought in, say 2 bales or 4 bales of cotton, the warehouse gave him the samples, and he took the samples and came to the stores. You know cotton was very cheap. Now, a man had 2 bales of cotton, and he wanted 5 or 5% cents a pound. If I bought it, I gave him the money, and then t!hey bought goods. Sometimes they bought more goods than the cotton - came to. We buy cotton that way. We give them goods for it; that is, we give him the money. That was understood right then and there — that I take your cotton and give you a quarter of a cent more, but you have got to take goods.”

Called as a witness at the trial of this cause, the same witness testified as follows:

“My brother went back to Huntsville as soon as yellow fever was over. I could not get away. I stayed there a whole year, until the fall of 1868. I had two children, and I had no money to get away, and no goods of any consequence to get away and go to another place. My oldest child died of yellow fever; she died first, and my wife died of yellow fever the week after-wards. The other members of my family were Meyer and Jim. During the time I stayed in Huntsville, after I. Nussbaum left, I had a little goods there, and was taking care of my children, and paid their board and my board. I could not do anything there, because I did not have any money, and no goods to do enough. There was a man owed me money came there, and I wanted him to give mo $25 or $50, and ho did not do it. At that time I owed money in New York, and I owed money in Houston for the doctor’s and the expenses that I had to go to. I paid all that I owed in Houston, and I paid the board for my children. We had expenses, of course, during the yellow fever period. My wife was buried in Huntsville in the Masonic burying ground, and I could not bring her to Houston in the fall, and I waited until about March, when the frost killed the germs, and I sent a wagon, and they brought my wife’s body and my girl’s body here, and buried them in Beth-Israel cemetery. -At the time my wife Ernestine died, I did not have a dollar in money. I had goods. We had the store closed there for two or three months, because during the yellow fever we had to close, because there was not a soul coming into town. Instead of opening the store and getting a little money, we could not do it, because nobody came in. I think I had about $500 worth of goods; I never took stock — $500 or $600. At that time I owed more than $20,000. After my wife’s death I stayed in Huntsville and tried to get in enough money. I sold all the goods I could sell. Por six or eight months nobody came in the town, and I sold to the penitentiary guards, and I took from the superintendent yarn that came in five-pound package, and I brought that down here to Houston, and sold it to Mr. Hutchins, of Mellhaney & Hutchins, and I bought a little supplies. I kept a few yards of calico, and so on, and that is the way I made a living for myself and my children. I forgot to state that after my wife’s death, about a week, I took the yellow fever, and had two nurses there that came from Galveston. They heard my family were sick and dying, and two young men that knew me came to nurse me. I was sick, and they all thought I was going to die, and I got over it, and then, of eom’se, I could not get away. After you have yellow fever, for two or three months, especially in the fall or winter, you could not move anywhere. My financial condition at that time was that I did not have a dollar.
“I left I-Iuntsville in the fall of 1868. I went by stage from Huntsville to ¡Navasota. I will say, first, I went to Houston to see if I could get a little goods to open something in Nava-sota, so as to make a living for me and my children. I do not know what became of the goods that I left in Houston with E. Raphael; I never got any of said goods. I made arrangements for goods when I came to Houston. All I had was my name, but I was owing in New York a good pile of money, and they were willing to sell me goods, but not under my name, because the creditors would come and take it. So Monheim Jacobs, who kept a wholesale dry goods house, says to me: T have got a cousin in here by the name of Hirshberg. I will sell the goods under his name, -and you can stay with them and get your share of the profit out to keep up yourself and your children.’ At the time I made that arrangement with Monheim Jacobs, I did not have any money or property at all to pay Mr. Jacobs. That was in 1868. I had known Monheim Jacobs before I went to see him; I knew him for years. I moved to Navasota and opened a store there under the name of Hirshberg, of course. I continued to do business in Navasota only a few months, until Calvert was opened. I did not do business in my own name in Navasota. The goods were sold under the name of, Hirshberg; they wore sold to Hirshberg. I remained in Navasota until the spring of 1869; then I went to Cal-vex*t. I went to Navasota in October, I believe, and stayed there until the spring, until Calvert was opened. By ‘Calvert was opened’ I mean that the Central Railroad just then had a terminus there. I moved to Calvert immediately, as soon as I made arrangements. What little goods I had I was owing for to Monheim Jacobs and Mellhaney & Hutchins, and I had to go there and let them know I was going to Calvert, and when I made arrangements to go to a place like that I had to make arrangements for some rnoi’e goods, and, of course, I made arrangements, and came 'back, and went to Calvert. * * * I married the second time on February 22) 1870, after- I moved to Calvert. At the time I made arrangements with Monheim Jacobs for the securing of the goods, the arrangement was that they would not give me any goods, with the exception that I would take Mr. I-Iirshberg, a cousin, and they would sell him the goods, and I should be with them, and attend to them, and get parts of the profits for the support of myself and the children, and upon those conditions they sold me the goods. They would have sold them to me in my name at that time, but they were afraid the creditors would come and take -them from me. I had no interest in the goods at that time, except just to get profit enough to support myself and children.
“After my marriage to Augusta C. Nussbaum, February 22, 1870, I continued to live in Calvert until 1871. I continued to operate with Hirshberg. As to the character of the business I was doing after my marriage to Augusta C. Nussbaum — Hirshberg and I were selling dry goods and clothing; a little dry goods store. I was not engaged in any other line. I did not buy or sell cotton while I was with Hirsh-berg. Hirshberg and I bought cotton just like any other merchant at that time. If a man should come in, and had a bale of cotton, we bought it, and then he bought goods. We did that so that we could do business, like every other store did there; all of them did the same thing. Before I came to Houston I bought cotton. Of course, I made money at that time, Most of the money I made was after my second marriage. At the time when cotton was vei’y cheap was after my second marriage. I brought to Houston samples of cotton and sold it to Monheim Jacobs, 8 or 10 bales. That was in 1871. I shipped other cotton to Focke, Wilkens & Lange about that time. I shipped Focke, Wilkens & Lange all together 135 or 130 bales, I think; I do not remember. I made money off of that. I paid 5 and 6 cents for the cotton; some fine cotton I got at about 5 cents; at that time cotton was very cheap. I did not hold the cotton for awhile. I sent word that Focke, Wilkens & Lange should hold it, and I gave thorn a margin, and they sold it almost as soon as they got it. I gave them a margin of 12% cents for good ordinary. After they sold the cotton, they remitted me for it, and I got that money. The property was acquired in Houston at the time when I made the money. I came to Houston and bought the property in question for my wife with that money, my part of .it. That property was located on Crawford, corner of Walker street. I made the money that I used to buy the property in controversy in this suit about the first part of 1871 — in 1870 and 1871. I personally handled the deal in the purchase of the property. I took the title to the property in the name of my wife, Mrs. A. C. Nussbaum; that was my second wife. My financial condition before 1870 was that I did not have anything before 1870. Of course, I made money after 1870. I did not move to Houston until the fall of 1871. * * *
“M. P. Nussbaum and S. J. Nussbaum are sons of my first marriage. They lived with me all the time until they got married. They got married and left my house several years before my second wife died. I never at any time had any conversation with them in the presence of my wife, or with them in the presence of any other person, relative to any ownership by them in the property; never a solitary word in the world. I heard them testify in this case. I will tell you, before God, there is not a word of truth in their statements. I am an old man, been living here since 1864, and not a man can say Nussbaum has told a lie — white, black, or any of them. After I acquired the property in question, X executed a deed to it to my wife. I did not consult any one about that, but my wife did. I was present when she consulted about it I was present, X think, when she made her will, and I think I was present when that deed was signed, of course. .1 never wrote, one thing to Meyer Nussbaum, or S. J. Nuss-baum, stating anything about the property, or their ownership of the property; not one word. They never made any claim to me for an interest in said property until the time the suit was filed. I did not know it until I saw it in the paper, and I was thunderstruck.”

On cross-examination lie testified:

“I lived on the property and occupied it as a home up to the time of my wife’s death. I ran away to Huntsville in 1867. After I went to Huntsville, from 1867 to the fall of 1868, the business in Huntsville was running itself. There were about six months I did not take in a nickel, hardly; I had yellow fever for three months. I do not know what six months those were that I ran it and did not take in a cent. There was no business at all. I cannot remember if there was anything sold for six months. I had to have enough t.o pay for my board for myself and children. I do not know whether it was exactly six months, or four months. I do not know how much I sold during the year I was in Huntsville. As to whether I sold as much as $250 worth of goods in the whole year, how could I have paid for the children’s board and my own board if I did not; I did not have any money to pay it. I did not keep any book account of what I sold. I suppose I sold as much as $400 worth; I don’t know. I probably sold as much as $500 worth, of course, the whole year. What is the use of asking me if I sold as much as $600 worth? I have not got any book, and did not keep any book, and it has been so long I cannot tell. I did not buy any goods in Huntsville, except just to exchange goods for some yarn I took from the penitentiary. Most that I sold was to the guards of the penitentiary. I did buy goods, but I got it that way. I got several bales of this yam, and brought it in, and sold it to Mcllhaney & Hutchins, and got some goods for it. I had to keep my store going while I was there, to get something to eat for me and my children. It has been so long ago that I could not tell the maximum amount of goods that I sold while I was in Houston; I know I did enough just merely to keep us alive, to pay the board for the children and myself. I do not know whether I did that out of the profits or out of the sale; I cannot remember. It is in my deposition, isn’t it? I cannot remember what I did testify; I can remember some things I testified, of course. I did not take any inventory after I went to Huntsville. I do not know whether -or not I got any of this stock of goods that was left in Houston after that. I do not believe I ever got any of it, but it is so long I cannot remember it. The statement is in my deposition that I do not think I did get any of the Houston stock, but I do not know whether I did. I do not remember what I said in my deposition; I am too old to remember. I came down to Houston to see Monheim Jacobs before I had gotten to Navasota. If it is put down in the deposition that X went to see Monheim Jacobs after I had moved to Navasota, it is wrong, because I went before. I could not go to Navasota,- if I did not get some goods. Probably I said in the deposition that after I went to Navasota I spoke to Monheim Jacobs, but if I did it was the wrong way, because I remember that when I went to Navasota I had to go first to see Monheim Jacobs, because how could I move on nothing at all? I had two children to take care of.”

Plaintiff offered in evidence in this connection the following question and answer from the deposition of the witness P. S. Nuss-baum, part of which has been heretofore introduced by plaintiff:

“Q. After you went to Navasota you mentioned that you spoke to Monheim Jacobs?” Answer: “Yes, sir.”

Witness then further testified as follows:

“Maybe I did" go afterwards. I cannot remember dates; that is impossible to remember for so long a time; I know I had to go and get goods somewheres; whether I went before or after I cannot remember. When I left Houston I was owing them $20',000, I suppose; I cannot remember how much I owed; it was a good sum. I did not pay any of that. When I wont to Navasota, Hirshberg bought the goods. I opened up in Ilirshberg’s name, of course. Hirshberg was there all the time; he ran the business just as much as I did. I was there, and'got part of the profits. I don’t know whether I had any stock of goods from Huntsville to Navasota. Whatever I had left, of course, I took it to Navasota — whatever I had left in Huntsville. As to - whether I opened up that stock in Hirshberg’s name — I sold it to him; I don’t know. I canno.t remember now what Hirshberg paid me for it. As to my knowing that I sold it to him, would you keep anything like that in your head for 50 years? The goods that I had left, if I had any left, I took to Navasota; but whether I had any left or not I cannot x-emember. Mr. Hirshberg opened them up. He got a lot of goods from Galveston, New Oi’leans, Houston, and he opened them up. As to how much I had in my stoi’e at Navasota — I bought from Monheim Jacobs about $800 or $000 worth of goods, and I bought from Mcllhaney & Hutchins about $1,100 or $1,200 worth of goods; I cannot remember exactly how much. I do not know anything about Greaser’s Xtow. I kept up my stock there in Navasota, and then later on I moved that stock to Calvert. I moved Hirshberg along with me to Calvert, and I conducted the 'business in Hirshbei-g’s name while I was in Cal-voi-t. I suppose I carried about $3,000 or $4,000 worth of stock in this business after I got to Calvert. Hirshberg bought it in Houston. I bought that stock of goods from Monheim Jacobs and Mcllhaney & Hutchins; X did not buy it; Hirshberg bought it. I bought part of them, of coui'se; I was tho manager of them. Of course, I had to do my work. I do not know whether I got the profits, or what. They would not give me the goods under my name; they would not give them to me unless I ran under somebody elso’s name; that is the way they generally do. Does counsel suppose I could go and do nothing for me and my children and starve? If you are a lawyer, you ought to be acquainted with such things as that. What could I do with two children, if I did not have somebody else’s name to mako a living by? I am telling the truth; I was getting goods on account of Hirshberg, to use his name, so that they could not be taken away from us.
“I cannot tell how long I ran the business under Hirshberg’s name. I ran it under his name until I got free from certain things. I continued to run this business under I-Iirsh-berg’s name until I got married, and until aft-erwards, too. I did not change the business to Mrs. A. O. Nussbaum after I got married; I am certain of that; I do not remember if I did. I don’t know. I don’t know if I did run it under Mrs. A. O. Nussbaum’s name, instead of Hirshberg’s. I kept up the stock of goods I was running in Hirshberg’s name at about the same amount, about §4,000, up to the time I married. X had to lot my stock drop, because the fire came, and burned it up, and got it all damaged. There was a fire broke out, and it burned seven blocks — the whole business of Oalvert. As to whether it is a fact in that fire I lost about $25 worth of goods and collected about $2,200 worth of insurance, I don’t know whether I lost anything. I do not think there was any loss By the fire, because I took the goods across the way on the grass; but the rain came in the night and damaged the whole goods, and when the adjuster came he adjusted the damage at $2,200. I do not think it burned over $25 worth' of goods in the fire; it might have burned that; I had no time to look.
“I do not know whether I had 500 cents at the time I married Mrs. A. O. Nussbaum, but I was still running that business up there. I cannot remember when Hirshberg left me. I did not shift my sign, and put P. S. Nussbaum up, instead of A. Hirshberg, until I came to Houston. It is not a fact that I shifted my sign from Hirshberg. to P. S. Nussbaum, and began to conduct business in my own name, before I came down to Houston. I did not conduct any more business there, because I burned out the second time, and I lost everything I had, and I had no more business there until I came to Houston. I did not have that second burning out just before I came to Houston, but I had to be there and work, and I turned in and bought cotton and made the money. That is the time I bought the cotton, after I was burned out the second time. I never did open up any other stock of goods at Oalvert after I burned out that last time — not that I can remember. I have not testified in this case that the way I got that cotton was in connection with my business. While I was in business I bought cotton, and I sold cotton; but after-wards I did nothing but buy cotton. Of course, I have testified in this case that the way I got the $1,500 with which I bought the property in controversy was by buying cotton. I did not testify I bought that cotton by buying it out of my business, not just before the fire. After I had the fire, I did not have any business of any consequence. My testimony that I got this cotton by taking the money to buy it ‘out of my business was misunderstood. I said I was buying cotton after the second fire. It seems my testimony was misunderstood. (Counsel for defendant admitted that the witness gave the deposition, part of which has been introduced by plaintiffs, and that the 1 same was fairly taken.) I say that my wife, Mrs. A. C. Nussbaum, collected the rents on the -property in controversy. I suppose my wife paid some of the grocery bills, and I paid some of them, I reckon. She used some of the rent to pay them; I always gave her some money. If it is in tho deposition that I was asked, ‘Well, in whose name was it?’ and that I answered, T don’t remember, I believe it was under the name of A. C. Nussbaum’ that I ran this business up there, I cannot deny that I gave any answer, if it is there. I suppose it must be so.
“Hirshberg is dead, I think. I cannot remember when he left Calvert. He did not stay with me after I started business in my own name. As to whether Hirshberg moved his stock of goods, too — he did not have any stock of goods; he sold it all out, and it was buimed up in the second fire. There was no insurance on the second fire. I don’t know whether Hirsh-berg or I collected the insurance on the first fire; I suppose he collected it; I do not remember whether it was he or I; we collected the money, and paid the debts, and paid for the goods. That is all we used the money for. That is what I believe it is in the deposition. It was the second fire that tho Masons helped me move-the stuff out. I was at the sclioolhouse with my children and my wife, and I heard a fire, and when I got there the whole block was burned, and my store with it, and I did not see any goods, or anything, and as I walked around Gen. Stoddard came to me and said: ‘Nussbaum, you go to the corner; there are a little goods of yours there. There is a man standing watching it.’ They saved some goods, and had some goods-on the comer. That was the fire when the Masons went in and saved some of my goods for' me, or I would have lost every cent. There was nothing but a few rags left, and I got up next day and sold them at auction. The goods were all wet and damaged, and I was standing in ice ’and rain that deep (indicating), and selling them so as to have a few dollars.
“It was the first fire that burned the seven blocks. My store was in the middle of this block (indicating), and the fire commenced in this corner (indicating), and had burned back. We had no fire wagons there, or anything, and it burned six blocks down that way (indicating), tho biggest kind of stores, just burned it like tinder, and burned back, and the reason I saved so much of my goods, we had time to take out most of the goods. I don’t know how much goods I got burned in there, because the fire was so quick, and we threw the goods out on the other side on the grass. The next day I got a store, I believe, or part of a store, in the block above, right in the middle of the block, and I put my goods in there. I did not have another fire a few weeks after that. It started in the comer; it was a drug store, and besides that there was a restaurant that had a fire, and the fire took from that, and it burned the whole block before it came to me at all. Counsel must not say the fire broke out in my place.”

On redirect examination he testified:

“After the first fire I got $2,250 from the insurance company. With that money I paid for the goods. I paid it to Mcllhaney & Hutchins and Monheim Jacobs. When I went and made arrangements for the buying of the goods, and bought the amount of goods I testified from Mc-llhaney, and the amount I testified from Mon-heim Jacobs, I did not pay for the goods when I bought them. I did not have any money to pay for the goods when I bought them1, or I could have bought them in my own name that time; but they were afraid they would be taken away by the other creditors.”

The plaintiffs, M. P. and S. J. Nussbaum, contend that the money with which their father, P. S. Nussbaum, paid the purchase-money of the lots in question, was the proceeds of cotton which belonged to the mercantile business conducted by him in Calvert; that said business was but a continuation of the Huntsville business, of which the original stock of merchandise removed from Huntsville formed a part, and which was therefore a partnership business belonging, to said P. S. Nussbaum and plaintiffs, the surviving children of said Nussbaum’s first wife, and that, as said lots were so paid for with money, one-half of which belonged to them, they are now the owners of one-half of the lots so purchased and paid for.

Defendants contend that said lots were paid for with money made by P. S. Nuss-baum in the purchase and sale of cotton in 1870 and 1871, after his stock of merchandise in Calvert had been destroyed by fire and he had become insolvent, and after he had assigned all his assets to a trustee and had been adjudged a bankrupt; that by virtue of the deed from P. S. Nussbaum to his wife, Augusta C. Nussbaum, he conveyed the lots in question to her, and the same became her separate property, and passed by her will to defendants Henry Nussbaum, Mollie Saper, and Bertha Blumenthal, and that they are now the owners of same, subject only to the life interest of P. S. Nussbaum, and the legacies mentioned in said will. They also plead the statute of limitations in bar of appellees’ right to recover.

The case was tried before a jury upon special issues submitted to them by the court, and to such submitted issues made answer as follows:

Hirst. P. S. Nussbaum was engaged in the mercantile business in Huntsville at the time of the death of his first wife, Ernestine Nuss-baum.
Second. At the time of the death of his first wife, P. S. Nussbaum had on hand a stock of merchandise.
Third. I’. S. Nussbaum continued to conduct the mercantile business at Huntsville from the death of his wife until he moved to Navasota.
Fourth. P. S. Nussbaum moved a stock of merchandise from Huntsville to Navasota.
Fifth. The goods moved from Huntsville formed a part of the stock of goods he had at Nava-sota.
Sixth. The property in question was paid for from the proceeds of cotton purchased with money derived from the mercantile business at Calvert.

Upon these answers the court entered judgment for plaintiffs, M. P. and S. J. Nuss-baum, for a one-half undivided interest in the lots involved in this suit, and for possession thereof, subject only to the right of defendant P. S. Nussbaum to use and occupy said property as his homestead so long as he desires to so use the same.

By appellants’ first assignment they insist that the court erred in admitting testimony, offered by plaintiffs, showing or tending to show that a trust or resulting trust existed in favor of plaintiffs in the property in controversy, because there were no pleadings under which such testimony was admissible. Their contention is that plaintiffs’ suit, as shown by their petition, is one for a partition only of land alleged to be owned jointly by plaintiffs and defendants, and that under such pleadings plaintiff should not have been permitted to prove a resulting trust in said land, from the payment of purchase money; that, before such facts could have been proven, proper allegation of their existence should have been made.

It has already been shown that by their supplemental petition plaintiffs alleged that they were the owners in fee simple of an undivided one-half interest in said property and that they prayed for judgment against all of the defendants for title and possession of their one-lialf of said land. It is not necessary for a plaintiff who relies on an equitable title to plead specifically the facts on which his title is based. Customary allegations in suits of trespass to try title are sufficient to authorize proof of any fact tending to establish his title. Wade v. Boyd, 24 Tex. Civ. App. 492, 60 S. W. 360; Edwards v. Barwise, 69 Tex. 85, 6 S. W. 677; Kauffman & Bunge v. Brown, 83 Tex. 41, at page 48, 18 S. W. 425. Appellants’ first assignment is overruled.

Appellants’ main contention is presented by their second, third, fourth, and fifth assignments, and is in substance that the evidence as a whole is too vague, meager and indefinite to support a finding, first, that merchandise of any quantity or of material value, a part of the stock of merchandise formerly owned by P. S. Nussbaum and his first wife at Huntsville, was ever removed to and became a part of the Navasota business, conducted by said Nussbaum under the name of H. Hirshberg; and, second, that there were any funds belonging to or coming from the business at Huntsville, Navasota, and Calvert, or either of them, used in paying the purchase money for the land in question — it being further contended that, as appellees’ suit is one seeking to ingraft a resulting trust in said land, by showing that money belonging to them was used in paying one-half of the purchase price, the burden was upon them to show with reasonable certainty that their money was so used, and that the evidence necessary to ingraft a resulting trust in said land as against the holder of the legal title thereto must be clear, full, and convincing, and of such a character as to take the matter out of the realm of conjecture. or presumption, and therefore, as the evidence in this case is not of such character, the judgment rendered in favor of appel-lees is not supported by sufficient evidence.

Appellants Bertha Blumenthal, Mollie Sa-per, and Henry Nussbaum are admittedly the holders of the legal title to the whole of the land in controversy. Appellees’ suit is one in which they are seeking to establish a resulting trust in an undivided one-half interest in said land, and claim that one-half of the money paid for the land belonged to them, and that it was in the hands of P. S. Nuss-baum as trustee for them, and was paid to the vendor as one-half payment for said land, and therefore they became and are the equitable owners of a one-half interest in said land.

In such suits the general rule, as established by our state courts, is that the burden of proof to establish that any such trust funds' were used in paying for such land is upon the plaintiff, pleading an equitable title, and that such proof must be clear and satisfactory, and must with a reasonable degree of certainty trace such trust funds, if any, into such payment. Joske v. Irvine, 91 Tex. at page 582, 44 S. W. 1059; King v. Gilleland, 60 Tex. 271; Goodrich v. Hicks, 19 Tex. Civ. App. 528, 48 S. W. 798; Albrecht v. Albrecht, 35 S. W. 1076; 39 Cyc. 160, 166; Meyer v. Holle, 83 Tex. 623, 19 S. W. 154; Zundell v. Gess, 73 Tex. 144, 10 S. W. 693; Glasscock v. Hamilton, 62 Tex. 143; Wright v. Moline Plow Co., 40 Tex. Civ. App. 434, 90 S. W. 905; Texas Moline Plow Co. v. Imp. Co., 32 Tex. Civ. App. 343, 80 S. W. 1042.

The rule that a new trial will not be granted, or the judgment reversed and cause remanded, where there is a scintilla of evidence to support the verdict of the jury, does not prevail in this state. Joske v. Irvine, 91 Tex. at page 582, 44 S. W. 1059; article 1639, Revised Civil Statutes of Texas; Railway Co. v. Schmidt, 61 Tex. 283.

We do not think there is any clear and satisfactory evidence in the entire statement of facts showing that P. S. Nussbaum had any portion of the Huntsville stock of goods, which remained after the death of his wife, Ernestine, in his possession, and which he removed to Navasota, of any material value, or that it exceeded in value the community debts of the first marriage shown to have been due in Houston and elsewhere, and which, by his undisputed evidence, he is shown to have paid after the death of his said wife. Nor do we think any funds belonging to apxDellees have been traced into the payment for any portion of the purchase price of the land in controversy by clear and satisfactory evidence. The mere statement made by P. S. Nussbaum to appellees that they owned an undivided one-half interest in the land in controversy through their mother, if he made same, does not, in our opinion, when taken with the other facts shown by the evidence set out above, show that money belonging to appellees was used in paying one-half of the purchase money for said land.

We think the plaintiffs in such suits as this must disclose all the facts and circumstances connected with the transaction, so as to make it manifest that the remedy they ask is just and equitable. It must be made to appear that it is inequitable to withhold frbm them the relief they seek, for, if their equities, if any, are nearly balanced, the legal title will not be disturbed. We do not think such showing has been made, and we therefore conclude that the contentions of appellants under their second, third, fourth, and fifth assignments should be sustained.

The trial court excluded, when offered in evidence by appellants, certified copies of the following papers: (1) The voluntary petition in bankruptcy filed by P. S. Nussbaum on the 23d day of September, 1870, together with the schedule of assets of said Nussbaum; (2) a certified copy of the decree adjudging said Nussbaum a bankrupt, of date October 4, 1870; (3) a certified copy 'of the discharge in bankruptcy of said Nussbaum, of date June 2, 1871. The exclusion of such evidence is the ground on which appellants base their twelfth, thirteenth, fourteenth, and fifteenth assignments.

We think these assignments should be sustained. Appellees based their right to recover in this1 suit upon the ground that their father, P. S. Nussbaum, after his second marriage, to wit, in 1871, invested funds belonging to the community estate of himself and his first wife, Ernestine, the mother of appel: lees, who died in 1867, in the land in controversy, that he had the same deeded to his second wife, Augusta O. Nussbaum, and that one-half undivided part of said land belongs to them by reason of the use of said community funds in the purchase of same. It therefore became and was very material that appellants show, if they could, that P. S. Nussbaum had filed a petition in bankruptcy in September, 1870, in which he swore that he had scheduled and turned over to the bankrupt court all of his assets, and that upon hearing the court had adjudged him a bankrupt and discharged him from his debts, thus tending strongly to show that as late as September 23, 1870, said P. S. Nussbaum had no assets belonging to said above-mentioned community estate, nor funds arising therefrom, and therefore had no funds belonging to said estate to invest in said land in 1871. This evidence, perhaps, would have been given much weight by the jury in determining whether P. S. Nussbaum used funds of said estate in paying for said land, especially in view of the fact that P. S. Nussbaum had testified that his entire stock .of merchandise in Calvert had been destroyed the second time by fire in the early part of 1870, and that he had no insurance on said stock, and that just after said fire he had neither goods nor money.

By appellants’ sixteenth assignment it is insisted that the court should have rendered judgment for appellants because the undisputed evidence shows that appellees’ cause of action, if any they had, is barred by the ten-year statute of limitation.

There is no merit in appellants’ contention. While it is true that P. S. Nussbaum, on the 27th of September, 1902, executed and delivered to Mrs. Augusta C. Nussbaum a deed by which he conveyed the land in controversy to her, thus showing an intention to hold adverse to appellees, and it is also true that Mrs. Augusta O. Nussbaum disposed of all of said land by her will, which was filed for probate on the 23d day of December, 1902, and thus tending to show an adverse holding to appellees, appellees both testified that P. S. Nussbaum was in possession of said property from the date of the death of Mrs. Augusta O. Nussbaum in 1902 up to February, 1915, the date of filing their original petition herein, and while holding such possession told appellees, after the probate of the will of Mrs. Augusta O. Nussbaum, that' he was not holding adverse to them. The evidence may have raised the question of ten-year limitation, as P. S. Nussbaum had no interest whatsoever in such portion of the land as was owned' by appellees, if any. The evidence, however,- on this question is not undisputed. The sixteenth assignment is overruled.

What has been said disposes of all of appellants’ assignments. For the errors pointed out, the judgment of the trial court is- reversed, and the cause remanded.

Reversed and remanded.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    SIMMS v. SOUTHERN PIPE LINE CO. et al.
    (No. 7497.)
    (Court of Civil Appeals of Texas. Galveston.
    April 27, 1917.
    Rehearing Denied May 17, 1917.)
    1. Injunction <&wkey;137(l) — Right to Remedy —Adequate Remedy at Law.
    Where, in a pipe line company’s suit to enjoin defendant from violating a contract whereby defendant’s vendor agreed to sell to plaintiff all the oil produced on the leasehold, and to secure a mandatory injunction requiring defendant to deliver to plaintiff the oil covered by the contracts instead of selling same to third persons or otherwise disposing of same, it appeared that plaintiff and the vendor had a plain, complete, and adequate remedy at law, and could easily establish their damage in a court of law, inasmuch as all oil produced by defendant was tested and gauged by skilled and competent men representing defendant and the owner of royalties reserved in the lease contract, and a record of such tests and measurements preserved, it was error to grant a temporary injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 307.]
    2. Mines and Minerals &wkey;>74 — Contract to Sell Oil — Binding Effect — Purchaser of Leasehold.
    Where one purchases an oil lease with knowledge that his vendor has contracted that the oil produced on the property shall be sold and delivered to a pipe line company at a price named in the sale contract, he is bound by such contract.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 202.]
    3. Injunction &wkey;>137(4) — Temporary Injunction-Transfer of Personalty.
    A preliminary injunction will not issue to compel the transfer of oil by the producer to pipe line company under a contract between the company and the producer’s vendor until the question of the producer’s liability under the contract has been finally determined.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 309.]
    4. Injunction c&wkey;16 —Right to Remedy — Legal Remedy.
    An injunction will not be granted merely because the relief thereby furnished will be more speedily obtained than by means of the legal remedy.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 15.]
    Appeal from District Court, Harris County ; J. D. I-Iarvey, Judge.
    Injunction by the Southern Pipe Line Company against E. F. Simms and another. From an order granting temporary injunction for plaintiff, the defendant named appeals.
    Reversed and rendered.
    R. U. Culberson and John W. Parker, both of Houston, for appellant. Ross & Wood, L. A. Carlton and I-I. F. Montgomery, all of Houston, for appellee Southern Pipe Line Co. Huggins & Kayser and Baker; Botts, Parker & Garwood, all of Houston, for appellee West.
   PLEASANTS, C. J.

This appeal is from an order- of the judge of the Eightieth judicial district granting a temporary injunction in a suit in said court brought by the Southern Pipe Line Company against the appellant and J. M. West. The hearing upon which the injunction was ordered was had upon the sworn pleadings of the parties; no affidavits or evidence of any kind being offered in’ support of the pleadings.

The following facts disclosed by the pleadings are undisputed:

Prior to September 14, 1916, the defendant J. M. West was in possession as lessee of two tracts of land on the Wm. Scott survey in Harris county, said lands being in the Goose Creek oil field. West had put down wells upon these lands, and was producing oil therefrom on the date mentioned, and had prior to said date entered into several contracts for the sale of the oil produced by him on said leased premises to the plaintiff, Southern Pipe Line Company. These several contracts were similar in form and import, the only difference being that some of them referred to the oil produced on one tract of the leased lands and the other to the oil produced on the other tract, and the first of said contracts referred only to the oil produced on said leased premises up to January 1, 1917, while the latter included the oil produced up to July 1, 1917. The form of the contracts was as follows:

“The Southern Pipe Line Company.
“Oil Purchase Contract.
“To Southern Pipe Line Company:
“The undersigned hereby offers and agrees to sell and deliver to you five-sixths or 83% per cent, of the oil to be produced and saved from wells known as No. 1, and up, situated upon the Geo. T. Sweet lease, in the Goose Creek oil field, subject to the further terms hereof, at sixty-five (65) cents per barrel of forty-two gallons each.
“The ‘further terms’ are these:
“(1) You are to begin taking such production as soon as possible (and certain within two days) after 7 o’clock a. m. on the 1st day of January, 1917, and continue so doing until 7 a. m. on the 1st day of July, 1917, but you shall not be compelled to take exceeding one thousand (1,000) barrels in any one day.
“(2) Such oil shall be delivered from seller’s settling tanks of merchantable quality free from sand and other impurities and fully settled, and be subject to such regular and usual treatment as to measurements, deductions for waste, temperature, etc., as apply to oil taken into your lines upon credit balances.
“(3) The undersigned guarantees the title to the oil referred to and in event of title dispute you are to hold the oil at risk of undersigned until indemnity is furnished, or the dispute is settled, and payment may be made by you within ten days after the end of each.month of the contract period.
“(4) In the event of fire or other unavoidable accident injuring your equipment to an extent that you cannot continue to receive the oil, you shall not be held responsible for any loss incurred by such delay or be compelled to take any delivery tendered until such time as by the exercise of due diligence necessary repairs can be made.
“(5) This offer shall become a closed contract from the time it is accepted in writing in your behalf by your duly authorized agent.
“Executed in duplicate this 28th day of August, 1916. [Signed] J. M. West.
“Accepted this 28th day of August, 1916.
“Southern Pipe Line Company,
“By Hills Bennett. Y. P. & G. M.”

The one-sixth of the oil not covered by this contract was royalty given by West to the owner of the land.

On September 14, 1916, West sold and transferred to defendant Simms all of his right, title, and interest in the leases held by him on the two tracts of land above mentioned in consideration of $100,000 paid him by Simms in cash and the agreement of Simms to pay him $100,000 in oil produced from said leased premises at the current price of such oil at the time of its production, and in addition to give West a royalty of one-fifth of all the oil produced on the premises, but out of this royalty the royalty due the owners of the land under the original lease to West was to be paid. At the time of this sale to Simms there were four producing wells on the property from which a small quantity of oil was being obtained. Two of these wells were being operated by a Mr. Rucker under a contract with West by the terms of which Rucker was to receive for his services and expenses in operating the wells one-half of the oil produced therefrom after deducting the royalty of the owner of the land. The oil from all four of these wells was run into pipe lines of plaintiff under the contracts of sale made by it with West. After Simms purchased the lease and took possession of the premises he allowed this manner of disposing of this oil to continue for some time. By diligent prosecution of the work of developing the property he has greatly increased the production of oil. At the time of the trial in the court below he had seven producing wells in addition to the four small producers mentioned and was drilling ten additional ones. I-Ie has in storage tanks 85,000 barrels of oil which he had produced on the land which he refused to turn over to plaintiff under the contracts of sale between it and defendant West. At the time of the hearing the property was producing 1,000 barrels or more a day, and with the coming in of additional wells then being drilled the production will probably be largely increased. This oil is worth $T.25 per barrel. Simms has expended $150,000 or more in producing this oil, and will be required under the terms of his lease to expend large additional amounts in its future development. His leasehold interest is valued at $1,000,000.

Plaintiff’s petition sets out the facts above stated, and then alleges, in substance:

That Simms purchased the leasehold interest of West with knowledge of the contracts of sale to plaintiff and took over said property subject to said interests, and, “as plaintiff is advised, expressly agreed’when he took over'the property that same was being taken over by him subject to the sales contracts, as hereinbefore set out, and'agreed expressly with West that he would abide by said sales contracts and perform them as West had agreed to perform them; that the agreement on the part of Simms to perform the contract was a part of the consideration on which the sale was made by West to him; that his promise to West to abide by and perform said contracts inures to the benefit of the iilain-tiff herein, and creates such privity between the plaintiff and said Simms as gives to the plaintiff the right to sue for the performance of said contracts and for damages suffered by breach thereofthat Simms, after taking over the property, continued to run the oil that was being produced therefrom into the lines of plaintiff; “that he joined with West in giving directions to this plaintiff as to the handling of the output of said wells; that the plaintiff, after the said Simms had so taken over said property, did, with the knowledge and at the instance of said Simms, apply the oil produced after Simms had bought the property on the sales contract that West had theretofore made; that, as aforesaid, this was done through the concurrent instructions of Simms and West; that the proceeds of the sale of said oil created and coming from the sales contract that had been made with West was, under the direction of West and Simms, paid over to the said defendants heroin, West and Simms, in the proportion that they directed that it should be paid over to them; that in so doing Simms not only recognized the existence of the sales contract, but also recognized and acknowledged their binding force on him and his obligation and duty to perform same.”

It is then alleged that defendant Simms repudiated said contracts of sale when the market price of oil became greater than the price fixed in said contracts, and refused to deliver any of the oil to plaintiff or run same into plaintiff’s pipe line, but is constructing earthen tanks for the storage of said oil, “and is now constructing a pipe line to the Houston Ship Canal, and has in contemplation and threatens to load said oil into vessels and transport the same beyond the limits of this state”; that large quantities of oil have been and .will continue to be produced from said leased premises; and that, unless said oil is turned over to plaintiff under its contracts of sale, it will suffer damage to the extent of the difference between the market value of $1.25 per barrel and the contract price Of 65 cents per barrel of all the oil so wrongfully withheld from plaintiff.

Other allegations of the petition are as follows:

“Plaintiff shows that under its sales contracts it has the right to have the oil that it is entitled to tested, measured, and gauged in accordance with the terms of the contracts; that this will be impossible of accomplishment if the defendant Simms is permitted to arbitrarily repudiate the contracts and at his will take and transport the oil beyond the limits of the state of Texas; that he, the said Simms, is not running the oil to the pipe lines of any disinterested third party; that same is not being measured, tested, and gauged as provided for in plaintiff’s sales contracts; that if he, the said Simms, is permitted to carry out his purposes, there will be no fair means whereby the plaintiff can ever determine the amount of oil that has been produced by the properties or get accurate information upon which to base a claim for the damages that may be sustained by it.
“Plaintiff would further show that on the faith of receiving the oil from said properties, under its said sales contracts, it, after the making thereof, sold to third parties oil in large quantities that it expected to be produced and delivered to it from the properties in question; that if the defendants herein are permitted to take and appropriate said oil, in open and direct violation of the rights of the plaintiff herein, that it, the said plaintiff, on this account will be subjected to annoyances and lawsuits from other sources, and in this way will suffer a damage that is impossible of measurement in any action at law against the defendants herein.”

The prayer of the petition is as follows:

“Premises considered, plaintiff prays that said sales contracts be specifically enforced; that a mandatory injunction be issued herein commanding the said Simms to deliver to the plaintiff herein the oil that it is entitled to under said contracts as same is produced; that in any event the said defendants be enjoined from removing the oil from this state, from selling it to third .parties, or in any other way disposing of same; that, if the relief by injunction be not granted, plaintiff prays that a receiver be appointed to take over the oil claimed by the plaintiff and which should properly go to it under its sales contracts, measure, test, and gauge the same, as provided for in said contracts; that same be by said receiver stored with a responsible pipe line company ; that it be sold from time to time under the orders of this court, and the money received therefor held in the registry of this court to be applied as the rights of the parties may demand ; that upon a hearing plaintiff have judgment against the defendants as the facts may warrant; that, if the plaintiff is denied the right or fails to get the oil that belongs to it, that it have judgment for the difference between the value thereof and the contract price; that, if, when the case is tried, the full period of time that plaintiff is so entitled to oil has not elapsed, that it have judgment for such damages as may have occurred to it up to the time of trial, that the judgment entered preserve to it the right to assert its cause of action for the damages that may accrue to it after the time of trial and rendition of judgment; that if the continuing right to sue be not preserved to it, then it asks that the damages suffered by it up to the time of trial be measured on the basis above set out; that the future damage be estimated and determined from all the facts, and that judgment for the full amount of damage suffered, both that found to have actually accrued and that will thereafter prospectively accrue, be entered; that it have judgment for the damage suffered against both Simms and West, but, if it be held that Simms is not liable, that it, notwithstanding, have judgment for its damages against the defendant West; that process in terms of law be issued and served on the defendants requiring them to answer herein; that it have judgment for costs; and it furthermore offering to do equity puts itself in the keeping of the court, and prays for all the relief that it may show itself entitled to, general or special, legal or equitable.”

The answer of defendant West, after admitting the execution of the contracts of sale and his obligation thereunder to deliver to plaintiff the oil produced from the leased premises in accordance with the terms of said contracts, contains the following allegations : •

“This defendant West being thus the owner of the oil produced and to be produced under said leases, save and except the royalties therein provided for, and having entered into the contracts with the plaintiff for the sale of the oil owned by said West and to be produced from said leasehold premises during the time therein specified, and having fully acquainted the defendant Simms with the fact that said oil to be produced from said leasehold interests had been contracted and sold to the plaintiff herein, the said defendant West on the 14th day of September, 1916, transferred, assigned, and conveyed to the said defendant Simms all of the right, title, and interest that he, the said West, then had in and to the said leases hereinabove referred to, delivering to the said Simms at the same time the said contracts so entered into by the said West with the said plaintiff, the Southern Pipe line Company, the said Simms as a part of the consideration for the transfer of said leasehold interest binding and obligating himself to deliver to the plaintiff herein the oil to be produced from said leased premises in accordance with the terms of the said contract of sale between the said West and the plaintiff Southern Pipe Line Company; this price (65 cents) was at that time (September.14, 1916)'far above the market price for oil produced in the Goose Creek field, which is the location of the land covered by the leases and where the oil was to be produced, and that in view of that fact this contract price, being above the market price, was a valuable asset, coupled with said leases; that in negotiations concerning the transfer of said leases the said West proffered to secure a reledfee of said contracts unless the said Simms would agree, as a part of the consideration, to assume the performance of said contracts, and this the said Simms agreed to do; that if the said Simms had not undertaken the performance of the contract theretofore made between the said West and the said plaintiff, the said West would not have transferred said leases without securing the cancellation of said contracts with the plaintiff; that the said defendant Simms, immediately after the transfer and assignment to him of the said leasehold and said contracts, began the performance of said contracts for the sale of said oil produced from said premises by delivering such oil to the plaintiff herein, and thereafter continued tó perform said agreements for the delivery of said oil to the plaintiff herein, just as he had contracted to do, and beyond himself to do by his agreements with the said West, until the price-of oil in the Goose Greek field increased to an amount in excess of the price which the Southern Pipe Line Company had contracted to pay, and thereupon the said defendant Simms gave notice to the Southern Pipe Line Company that he would no longer deliver oil under the terms of that agreement; that the said defendant Simms reaped the profits of the cqntracts entered into between the defendant West and the plaintiff, Southern Pipe Eine Company, and at no time sought to repudiate the obligations thereof until it ceased to be profitable to perform said contracts, and without justification of any kind, when the obligations of the contracts became burdensome to him, declared his purpose to disregard them, thus violating the sacred obligations of contracts knowingly and voluntarily assumed, in utter disregard of the rights of the persons to whom he was solemnly bound.”

He also repeats the allegations of plaintiff’s petition in regard to the necessity of having the oil run into plaintiff’s pipe line, or some other disinterested pipe line company, in order that its quantity and quality ■can be ascertained and proof thereof not be left entirely within the control of defendant Simms. He farther alleges:

That by the terms of the lease Simms is required to deliver the royalties due under said lease .to the owners of the land as the oil is produced, and “is bound to construct and build on said premises settling tanks and other necessary tanks ancl receptacles for holding and storing the oil and connect all producing wells with said tanks; that he is required to run all oil into said settling tanks, and that same is therein to be gauged before said oil is taken out of said settling tanks, and the oil shall not be in any manner disposed of until such measurements are properly taken, and similar provisions are contained in the lease on the Gaillard tract. Upon information and belief this defendant charges that the said defendant Simms is not complying with these provisions of his contract, but has failed to construct settling tanks upon said premises, and the oil produced thereon is being conveyed away from said premises into earthen tanks situated on tracts of land other than those described in said leases; that under the terms of said leases performance of every stipulation required in said leases is essential to the preservation of the rights therein conferred, and the failure of the said Simms to perform each of said stipulations is endangering the validity of said leases.”

His prayer is as follows:

“Premises considered, the defendant West joins in the plaintiff’s prayer that said sales contracts be specifically enforced, and that a mandatory injunction be issued commanding the said defendant Simms to deliver to the plaintiff, Southern Pipe Line Company, the oil which it is entitled to under said contraéis as the same is produced; that the said defendant Simms be enjoined from' removing the said oil from this state or from selling it to any third person, or in any way disposing of it, and that said West recover the title to and possession of all said oil to which under the facts herein alleged he is entitled. This defendant prays further that a receiver be appointed to take over the oil produced from said property, and which, under the terms of said leases, reservations and contracts the plaintiff, Southern Pipe Line Company, and the defendant West are entitled to pending the final determination hereof, so that the same may be properly stored, preserved, tested, and measured and appropriated to the obligations of said contracts and agreements; that said oil be by said receiver stored in some proper way; and that under proper orders of the court from time to time the same shall be sold and the monies accruing from such sales be held by this court in its registry to be applied and páid over to the parties as it may ultimately be determined they are entitled to receive.
“This defendant prays further for the interposition of the equitable powers of this court to preserve and enforce the rights of this defendant in and to the properties hereinabove descxfibed and for all other relief, legal or equitable, to which this defendant is entitled in the premises, and thus he will ever pray.”

The answer of defendant Simms contains the following special exceptions to plaintiff’s petition and the answer and cross-action of defendant West:

. “He specially excepts to said petition because it is not alleged that plaintiff has no adequate remedy at law and will suffer irreparable injury, if injunction is not issued or a receiver appointed, and of this he prays judgment of the court.
“He specially excepts to the petition because the sales contracts declared upon therein are unilateral and void for want of mutuality and certainty, and for lack of consideration; and of this he prays judgment of the court.
“He further specially excepts to the petition wherein relief by mandatory injunction or the appointment of a receiver is sought, because it appears by the allegations of the petition that the action is for a breach of contract, compensa-ble in damages, and plaintiff has an adequate remedy at law; and of this hq prays judgment of the court.”
“Specially answering the petition, he denies that he purchased the leases on the two tracts of land called the ‘Gaillard’ and the ‘Sweet’ with knowledge of the sales contracts mentioned in the petition, or that he assumed such contracts, or that his purchase was subject thereto, or that he agreed to recognize them, or that, in causing the oil to be continued to be run into the plaintiff’s pipe line, he did so in recognition of said contracts, but he says that in so running the oil he was performing his contract of purchase of the leases from said West; and he denies that he promised or became liable to deliver to plaintiff any oil produced by him from said tracts in pursuance of such contracts, or that plaintiff became the owner, by virtue of such contracts, of any oil produced, or to be produced by this defendant therefrom, or that he agreed as a part of the consideration for the sale of the leases to him to perform the sales contracts, or that there is or ever has been any privity between him and the plaintiff with reference to said contracts; and he denies that the estate he took in his purchase from the defendant West in the said two tracts was limited or qualified in any manner; and these facts he is ready to verify.”
“He denies that the sales contracts were given any consideration or entered in any manner into the contract of sale by West and of purchase by this defendant of the leases. He says that the consideration of the sale of the leases from West to him was $100,000 paid by him to West in cash, and $100,000 to be paid by him to West in oil, to be produced from the two tracts at the current market or pipe line prices, and the differences between the royalty interest to be paid the owners of the respective tracts and a one-fifth interest in the oil. He says that, when he acquired the leases there were four producing wells on the two tracts, one on the Sweet No. 13, and three on the Gaillard, Nos. 2, 6, and 10; that 2 and 6 were being operated by one O. T. Rucker, under an agreement with West whereby he was to receive one-half of the oil, and West the other one-half, less the royalty interests; that said Rucker was running the oil into the plaintiff’s pipe line; that the production was small, and the interest of West therein was credited to him *by the pipe line; that West informed this defendant that he could terminate the arrangement with said Rucker or continue it, as he saw proper; that, owing to the smallness of the production, he elected to let Rucker continue to operate the two wells, and to' run the oil to the plaintiff’s pipe line, one-half thereof going to the credit of said West, less the royalty, interests, as formerly, in pursuance of his obligation to-pay the $100,000 in oil, and he allowed the oil from well Nos. 10 and 13 to be run into the plaintiff’s pipe line and go to the credit of said West for the same reason and purpose; that as soon as this defendant commenced drilling, which was in the course of a month, or such time, he appropriated all of the oil from wells Nos. 10 and 13 for fuel.”
“He further shows that both tracts are and have been provided with a sufficient number of settling tanks, and that the oil produced by him from said tracts is first run into such tanks, where it is settled, and then run into earthen storage; that he has competent men who gauge the oil and keep a record thereof, which is in all respects the same as made by responsible pipe lines within this state; that the owners of the royalty interests also have gaugers who gauge the oil in connection with this defendant’s gauger; .that the quantity and quality of the oil produced is known to the said gaugers, who are reliable men, and the quantity and quality produced can be shown at any time by refer-ence to the records made by said gaugers and by measurement of the storage tanks containing the oil, and neither the plaintiff nor the royalty owners are suffering loss or damage by reason of the way the oil is stored or measured. This defendant further shows that the Gulf Production Company is the owner of the royalty interest connected with the Sweet tract, and receives such interest from this defendant’s settling tanks, and is satisfied with the way he is handling the oil; that the royalty interest connected with the Gaillard tract is run into settling tanks, and thence into the storage along with the other oil, and the owners of such interest are satisfied with that disposition of their interests.”
“Further specially answering, this defendant says that the oil that has been produced by him and that will be produced by him from said tracts up to July 1, 1917, is, and will be, of the value, at the current market price, of $1.25 per barrel of 42 gallons, and will command this price from the pipe lines, and this defendant says that, if it shall be finally determined that plaintiff is entitled to all of the oil or any part of the oil produced by him from the said two tracts up to July 1, 19T7, at the price of 65 cents per barrel, that this defendant is entitled to have judgment against defendant West for the full market or pipe line prices of said oil, namely, $1.25 per barrel, to be applied, so far as required, to the satisfaction of the $100,000 to be paid West in oil as aforesaid.
“Wherefore this defendant prays that the mandatory injunction and the appointment of a receiver, as prayed for by plaintiff, and by defendant West, be denied; that he go hence without day and recover his costs, or, if it shall be held that the plaintiff is entitled to the oil, or any part of the oil produced and to be produced from said land up to July 1, 1917, under the said sales contracts, that then he have judgment over against West for the current market or pipe line prices, namely, $1.25 per barrel for said oil, for his costs, and for general and equitable relief, and in so doing this defendant offers to do and perform whatever act or thing the court shall adjudge to be required of him by equity and good conscience in the premises.”

Upon these pleadings the trial judge, after overruling the exceptions of defendant to the petition and answer of defendant West, and refusing the prayer for appointment of a receiver, entered the following order:

“It is ordered that a writ of mandatory injunction issue by its terms directing and commanding the defendant Simms, to deliver to the plaintiff, Southern Pipe Line Company, all oil which he has produced from the leases and wells described in the contracts sued upon by plaintiff, and now in the possession of defendant Simms, in storage, which oil now in storage (except as provided in paragraph V hereof) shall be so delivered by defendant Simms and received by plaintiff as rapidly as practicable, and in the manner and condition provided in the contracts declared upon by plaintiff and on the premises in plaintiff’s petition described, and .said writ shall also command that the oil hereinafter produced from said leases and wells referred to, pending the trial of this cause on the merits, shall (except as provided in paragraph Y hereof) be likewise run to the pipe line of plaintiff under the terms and as provided by the contracts herein sued on, such writ further providing that a correct and accurate gauge of all oil so run by virtue of said order shall be kept both by plaintiff and defendant Simms; such writ also to provide that plaintiff shall (except as provided in paragraph V hereof), pay defendant Simms the sum of 65 cents per barrel of 42 gallons for all oil so run into the pipe line of plaintiff by virtue of this order, such payment to be made as provided in the contracts by plaintiff declared upon heroin, and to be forthwith paid over by Simms to West on his obligation to pay West $100,000 in oil in part consideration for the sale of the leases by West to him, but without prejudice to claim of .Simms to absolute ownership of the oil or to his right to claim a credit on such obligation at the current or pipe line prices for the oil or any other right that he may have against said West or that West may have against him.
“The foregoing order is conditioned that plaintiff and defendant West shall first execute and file herein .a good and sufficient bond in the sum of $300,000, payable to the defendant Simms, and conditioned as required by law, and to be approved'by the clerk of this court.”

The exceptions mentioned in this order refer to the royalties accruing under the lease contracts. The remainder of the order is not material to any question presented by this appeal.

This order cannot he sustained, because there is a plain, complete, and adequate remedy at law,for the injury claimed to have been suffered by appellees. There is nothing in the facts alleged in the pleadings showing that the ordinary measure of damage for breach of contract of sale of personalty would not fully compensate appellees for any injury they have sustained or may sustain by the alleged breach by appellant of the contract of sale, nor are any facts alleged showing that it will be impossible, or even difficult, for appellees to establish their damage in a court of law. The only allegations which in any way tend to show that appellees would be unable to accurately establish the amount of their, damage are the allegations in regard to their having to rely upon appellant to have the oil gauged and tested as it is produced and to take his statement as to the quality and quantity of oil produced. These allegations, we think, are fully met by the averments in appellant’s answer that the oil is tested and gauged in settling tanks, as it is produced, by skilled and competent men representing appellant and the owners of royalties reserved in the lease contract, and a record of such tests and measurements preserved. These averments are not denied, and, being true, it cannot be reasonably inferred that appellees would have any dif-.Acuity in establishing the quality and quantity of the oil produced.

It is true that the scope of the application ■of the equitable remedy of injunction has widened from precedent to precedent, and that remedy is now granted where formerly it was held beyond the power of a court to issue such writ. It may be that the time may •come, which one of the able counsel for ap-pellees in his argument in this case expressed the hope to see, when all contracts can be -enforced by injunction. That time has not yet come, but its dawning is at hand if the order granting the injunction in this case can be sustained. If a contract for the sale of oil can be enforced by injunction, it follows that a contract for the sale of any chattel can be so enforced, and why not a contract for the payment of money? So far as we have ascertained by examination of the authorities, contracts for the sale of chattels have only been enforced in cases in which it was shown that the chattels contracted for •could not be obtained in the market or could ■only be obtained at great expense and inconvenience and the failure to obtain them would cause a loss which could not be adequately compensated for in an action for damages.

In the case of Equitable Gaslight Co. v. Baltimore Coal Tar Co., 63 Md. 285, specific performance was decreed on a contract to sell coal tar which plaintiff required to fill contracts made by it and which it was impossible to obtain otherwise than by purchasing in distant cities and transporting at great expense. In Gloucester Isinglass & Glue Co. v. Russia Cement Co., 154 Mass. 92, 27 N. E. 1005, 12 L. R. A. 563, 26 Am. St. Rep. 214, a contract to furnish fish skins to use in making glue was specifically enforced, it being shown that fish skins were of very limited production, that most of the production was under contract, and that unless relief was given by specific performance it would be very difficult, if not impossible, for plaintiff to continue to carry on its business. In the case of Texas Co. v. Central Fuel Oil Co., 194 Fed. 1, 114 C. C. A. 21, it was held that an injunction could be granted to compel the defendant to comply with its contract to deliver the oil produced by it from properties owned or controlled by it in one of the Oklahoma oil fields. The contract in that case was to run for ten years. On the faith of the contract the plaintiff had expended $700,-000 and the defendant was insolvent. None of the facts upon which the equities of the plaintiffs in the cases cited arose are present in the instant case.

Another feature which clearly distinguishes these eases from the one before us is that there is no question in the cited cases that the defendants had executed the ■contracts sued on. In this case the defendant Simms denies that he knew of the existence of the contracts of sale at the time he purchased West’s leasehold interest in the properties. The oil in controversy was produced by him and is his property lawfully in his possession. If, when he purchased the lease, he knew that plaintiff had contracts that the oil produced from the property up to July 1, 1917, should be sold and delivered to it at the price named in the sales contracts, he would be bound by such contracts, and plaintiff would be entitled to recover damages for their breach, and, if the facts justified such remedy, to specific performance of the contracts. Until the question of appellant’s liability upon the contracts is finally determined he could in no case be required to deliver to appellees the property rightfully and lawfully in his possession.

In the case of Simms v. Reisner, 134 S. W. 278, this court held:

That it was “not the function of a preliminary injunction to transfer the possession of land from one person to another pending an adjudication of title, unless -the possession has been forcibly or fraudulently obtained by defendant, and the equities require that the possession thus wrongfully invaded be restored, and the original status preserved pending the decision of the issue of title.”

We think the rule announced in this case is applicable here.

Upon the question of what is an adequate remedy at law which will deny a plaintiff relief by injunction, it may be conceded, as contended by appellees, that the tendency of our courts has been to require that the remedy at law be more complete, simple, and easily obtainable than was formerly held necessary, but it has never been held that an injunction should be granted merely because the relief so furnished would be more speedily obtained than by means of the legal remedy. The order granting the injunction in effect says that, notwithstanding the fact that the oil in controversy was lawfully produced by appellant, is lawfully in his possession, and, if his claims are true, is not subject to the contracts sued on by appellees, that appellant, pending a final determination of his right to hold the oil, must deliver it to appellees at the price named in the contracts of sale, and if it be finally determined that appellant had the right to keep the oil, he can recover from appellees and their bondsmen as damages the difference between the contract price and the market value of the oil at the time it is delivered to appellees. Under the facts of this case we cannot see why, if the legal remedy of damages is adequate to compensate appellant for loss suffered by him if it be found appellees, under legal process wrongfully obtained, have taken his property from him, the recovery of such damages would not furnish an adequate remedy to appellees for any damages they may sustain by the wrongful withholding of the oil by appellant.

These conclusions render the discussion of the other questions presented by the appeal unnecessary, and require that the order of the trial court granting the injunction be reversed and vacated, and judgment here rendered refusing the prayer for injunction; and it is so ordered.

Reversed and rendered.
      ifesFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes )