author: CONNER, C. J.

text:
    BARTON v. WICHITA RIVER OIL CO. et al.
    (No. 8364.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    April 22, 1916.
    On Motion for Rehearing June 3, 1916.
    Rehearing Denied June 24, 1916.)
    1. Chattel Moetgages &wkey;>138(l) — Existing Lien Law — Labobeks’ Lien — Peiokity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, giving to mechanics, laborers, etc., a first lien against the products of their work and labor, in force at the time of a chattel mortgage executed by an oil well company to secure the purchase price of its machinery and tools, the claim of laborers engaged in drilling an oil well with such machinery and tools,-if within the statute, was prior to the lien of the chattel mortgage, since the statute was to be read into the mortgage contract as a part thereof and as if expressly assented to by the parties at the time of the contract, article. 5671, providing that nothing in the title should impair the rights of parties who claim liens by special contract or any other lien not covered by the statute, not applying.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236; Dec. Dig. <&wkey;138(l).]
    2. Chattel Moetgages <&wkey;157(2) — Priorities — Lab obebs’ Lien — Bubden oe Pbooe.
    The assignee of claims of laborers engaged in drilling an oil well, who, after foreclosure, asserted a lien under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, superior to that of an existing chattel mortgage, had the burden of showing that such Ben was given by the statute.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Dec. Dig. <&wkey;157(2).]
    On Motion for Rehearing.
    3. Mines and Minebals &wkey;>112(3) — Liens— Deilling Oil Well — “Mine”—“Mineeal” —“Minee”—Statute.
    Vernon’s ’Sayles’ Ann. Civ. St. 1914, art. 5644, enacted in 1895 when oil wells in the state were not generally known and considered, gives to any one laboring in any mine, quarry, factory, or mill of any character a first lien upon the products, machinery, etc., created by such labor or necessarily connected with its performance that may be owned by or in the possession of the employer. Rev. St. 1911, art. 5502, subds. 1, 6, declare that the ordinary signification shall be applied to words, and that in all interpretations, the court shall look for the intention of the Legislature, keeping in view the old law, the evil, and the remedy, and the rule prescribed by law is that statutes shall be liberally construed with a view to effect their objects and to promote justice. Const, art. 1, § 3, declares: that no man, or set of men, is entitled to exclusive privileges but in consideration of public services. Held, that a “mine” is an excavation, properly underground, for digging out some useful product, as ore, metal, or coal, any deposit of such material suitable for excavation and working; that “to mine” is to obtain by digging out of the earth, to dig into the earth for ore; that a “miner” is one who mines in any sense, especially one whose occupation is to excavate ore, coal, etc., in a mine; that while oil is classed as a. “mineral,” that term refers ordinarily to minerals in place, and not to substances in solution and migratory, such as oil; and that an oil well was not a mine or the driller a miner, and hence that a driller had no lien on the oil company’s machinery and tools used in drilling the well.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 235; Dec. Dig. <&wkey;> 112(3).
    For other definitions, see Words and Phrases, First and Second Series, Mine; Miner; Minerals.]
    Appeal from District Court, Wichita County ; J. W. Akin, Judge.
    Suit by S. I. Barton against the Wichita River Oil Company and Claude Minor. Judgment for plaintiff, .making the lien of his chattel mortgage inferior to the laborers’ liens foreclosed by defendant Minor, and discharging defendant Minor, and plaintiff appeals.
    Reversed and rendered for plaintiff, with a foreclosure of his chattel mortgage against all the defendants.
    John C. Kay, of Wichita Falls, for appellant. C. M. McFarland, of Wichita Falls, for appellees. •

       Application for writ of error pending in Supreme Court.

   CONNER, C. J.

This suit was instituted by S. I. Barton against the Wichita River Oil Company upon promissory notes aggregating some $2,048.84, which had been given by the oil company to the Keystone Driller Company for the purchase money of certain oil well machinery, supplies, and tools. The plaintiff alleged that by assignment he had become the owner of the notes, and that to secure their payment the Wichita River Oil Company had executed and delivered to the Keystone Driller Company a chattel mortgage upon all of the oil well machinery, supplies, and tools sold at the time, and for which the notes were given; that the materials so sold were not delivered to the oil company until after the execution of the notes, and until after the said chattel mortgage had been duly filed for record in Wichita county. As against the Wichita River Oil Company the prayer of the petition was for a recovery of the amount of indebtedness shown by the note, with a foreclosure of the chattel mortgage lien. It was further alleged, however, that one Claude Minor was claiming some interest in the machinery and supplies covered by the mortgage, and further prayer was made to the effect that he be made a party defendant, and that the plaintiff have judgment against him also for a foreclosure of the chattel mortgage lien.

Claude Minor appeared and alleged, in substance, that he and others, whose claims ‘he owned by assignments duly made, had worked for the Wichita River Oil Company, and used the machinery and tools described in the plaintiff’s petition in drilling an oil well, for which labor the Wichita River Oil Company became indebted in the sum of $1,160.75; that later, to wit, on November 16, 1914, laborers’ liens against said machinery, etc., had been filed with the county clerk in the manner provided by law, after which time Claude Minor had instituted suit in the district court of Wichita county against said Wichita River Oil Company for his debt, with foreclosure of said laborers’ liens; that said liens had been duly foreclosed and the property sold thereunder, at which sale said Claude Minor became the purchaser, and by reason of which it was alleged he was then the owner of the property upon which the plaintiff sought to foreclose the chattel mortgage lien.

A trial was had upon the 30th day of June, 1015, and resulted in a judgment for the plaintiff, S. I. Barton, against the defendants, composing the Wichita River Oil Company for the debt, interest, and attorney’s fees, as evidenced by the notes declared upon in the petition. It was further adjudged, however, that the plaintiff’s lien, as evidenced by the chattel mortgage declared upon, was “inferior and not prior” to the laborers’ liens which had been foreclosed by the defendant Claude Minor, and the plaintiff’s prayer to foreclose his chattel mortgage lien was therefore denied, and the defendant Claude Minor entirely discharged. From this judgment the plaintiff, S. I. Barton, has appealed.

The facts are undisputed, and are as stated in the pleadings of the parties, as above substantially given, and the sole qtiestion presented for our determination is whether, under the circumstances, the laborers’ lien as claimed by the appellee Claude Minor was superior to the lien of the chattel mortgage owned by the plaintiff. If so, the judgment should be affirmed. If not, the judgment should be reversed and here rendered for the appellant.

Title 86, Vernon’s Sayles’ Texas Civil Statutes, vol. 4, treats of judgment liens, of mechanics, contractors, builders, and material-men liens, of liens of railroad laborers, of liens on domestic vessels, of keepers of live stock of chattel mortgages, and other liens. The article of the statute upon which appel-lee relies for the superiority of his laborer’s lien over the chattel mortgage lien is article 5644, found in chapter 4 of the title referred to, and which reads:

“That whenever any clerk, accountant bookkeeper, artisan, craftsman, factory operator, mill operator, servant, mechanic, quurryman, or common laborer, farm hand, male or female, may labor or perform any service in any office, store, saloon, hotel, shop, mine, quarry, factory or mill of any character, or who may perform any service in the cutting, preparation, hauling, handling, or transporting to any mill, or other point for sale, manufacture or other disposition, logs or timber, or who shall perform any service upon any wagon, cart, tram, or railroad or other means or methods of transporting such logs or timber, and in the construction or maintenance of such tram or railroad, constructed or used for the transportation of logs or timber to or for such mills or to its owner or operator, or to points for sale, shipment or other disposition, or any farm hands, under one or by virtue of any contract or agreement, written or verbal, with any person, employer, firm, corporation, or his, her, or their agent or agents, receiver or receivers, trustee or trustees, in order to secure the payment of the amount due or owing under such contract or agreement, written or verbal, the hereinbefore mentioned employes shall have a first lion upon all products, machinery, tools, fixtures, appurtenances, goods, wares, merchandise, chattels, wagons, carts, tramroads, railroads, rolling stock, and appurtenances, or thing or things of value, of whatsoever character that may be created in whole or in part by the labor of or that may be used by such person or persons, or necessarily connected with the performance of such labor or service, which may be owned by or in the possession or under the control of the aforesaid employer, person, firm, corporation, or his, or their agent or agents, receiver or receivers, trustee or trustees; provided, that the lien herein given to a farm hand shall be subordinate to the landlord’s lien now provided by law.”

It is to be noted that the statute quoted gives to those persons to whom it applies a “first” lien upon the property specified to secure the character of labor to which the article relates, and appellant attacks the judgment below for the reason that it has been specially provided in article 5671 of chapter 8, title 86, relating to “other liens” than those theretofore specified in the title, that:

“Nothing in this title shall be construed or considered in any manner impairing or affecting the rights of parties to claim lions by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law or in equity, or by any statute of this state, or any other lien not treated of under this title.”

Appellant’s insistence is that articles 5644 and 5671, both of which have been quoted and both of which are parts of the same title, are to be construed together, and that, when so construed, article 5644, under which ap-pellee claims, should not be given superior effect over a chattel mortgage lien that was duly executed and recorded upon the property involved prior to the time when appellee’s labor therewith was performed, but we have been unable to adopt this contention, and thus disturb the judgment below. To give to article 5671 the effect contended for would be to wholly nullify the express declaration that the laborers’ lien shall be a “first” lien. If appellee and his assignors are within the class of persons named in article 5644, and entitled thereunder to the laborer’s lien upon the oil well machinery with which they worked, article 5671, as we think, can have no application, for the reason that it is undisputed that the laborer’s lien law (article 5644) was in force at the time the chattel mortgage upon which appellant relies was executed and recorded, and therefore is to be read into the mortgage contract as if a part thereof, and as if expressly assented to by the parties to the contract at the time. Thus, it is said in 6 Ruling Case Eaw, §§ 314, 315, p. 325:

“Conformably to the well-established rule that the laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms, the obligation of a contract is measured by the standard of the laws in force at the time it was entered into, and its performance is to be regulated by the terms and rules which they prescribed. * * * The provision of the" Constitution which declares that no state shall pass any law impairing the obligation of contracts does not apply to a law enacted prior to the making; of the contract, the obligation of which is claimed to be impaired, but only to a statute of a state enacted after the making of the contract. The obligation of a contract cannot properly be said to be impaired by a statute in force when the contract was made, for in such cases it is presumed that it was made in contemplation of the existing law.”

And in 1 Jones on Mortgages (7th Ed.) § 600. in speaking of priorities between mortgages and mechanics’ liens, it is said, among other things, that:

“Lien laws in force at the time of the execution of a mortgage enter into and become a part of the contract; and if these laws provide that certain liens shall be paramount over all other incumbrances, whether prior or subsequent, a mortgagee takes his mortgage subject to such liens as may afterward be acquired under the statute. But laws enacted after the execution of a mortgage cannot have the effect of creating a lien superior to such existing mortgage, for such laws are repugnant to the provisions of the federal Constitution, forbidding the impairment by any state of the obligations of a contract.”

So in the familiar statutes embodied in title 86, relating to farm hands and landlords, the preference liens therein conferred have been expressly held to be prior in right to pre-existing contract liens. See Neblett v. Barron, 104 Tex. 111, 134 S. W. 208; Id., 160 S. W. 1167; Cash v. First Nat. Bank, 26 Tex. Civ. App. 109, 61 S. W. 723; Ivy v. Pugh, 161 S. W. 930. See, also, Sparks v. Lumber Co., 40 Tex. Civ. App. 222, 89 S. W. 423, where, as we infer from the opinion, the preference given by the very article under which appellee claims in this case was upheld as against a prior contract lien.

We, therefore, as stated, feel unable to disturb the judgment below upon the only theory on appeal that appellant has presented. We nevertheless have concluded that the judgment was erroneous for the reason that appellee did not bring himself within the statute upon which he relies. The beneficial operation of the statute must be confined to the particular classes of laborers specified in the statute. To such persons alone is a first lien given, and it seems manifest that before a laborer of the kind here involved is entitled to supersede, or to be given priority of lien over a previously executed contract lien, of which he, by registration or otherwise, has notice, he should show himself to be strictly within the statute, for such preference or priority is not given by any other law. Such preference or priority is indeed, save for the statute, contrary to well-established principles. Thus it is said in 1 Jones on Mortgages, § 609, from which we have heretofore quoted, that:

“A mortgage executed before the commencement of a building erected on the land is paramount to a mechanic’s lien for work and materials furnished for the building by one having actual or constructive notice of such mortgage.”

The author here is evidently speaking of the general rule, inasmuch as later in the same section, as we have heretofore quoted, it is stated that if a priority is given by a statute in existence at the time of a contract lien, the statutory priority will be given effect. In the case of Blackford v. Ryan, 61 S. W. 161, by one of our Courts of Civil Appeals, it was held that the lien given to livery stable keepers by article 5664, ch. 8, tit. 86, was not entitled to priority over a previously -executed contract lien of which he had notice, the statute there considered, as will be seen by a reference thereto, not giving a first or preference lien. To the same effect is the ease of Masterson v. Pelz, 86 S. W. 56, by the Court of Civil Appeals for the Fourth District. And in stating the general rule it is said in 27 Cyc. page 234:

“Where property is subject to a mortgage or other incumbrance at the time when the building or work, or furnishing of materials, is commenced, such lien is entitled to priority over any mechanic’s lien arising out of the improvement of the property.”

So that we think we must emphasize the proposition that before appellee was entitled to the “first lien,” as asserted by him, it was necessary that he clearly show that he was one of the classes of persons specified in the statute, and that the labor performed by him and his assignors was of the character of labor contemplated thereby. The burden of proof was upon appellee to do this, and, as indicated, we think he has not discharged this burden. By a close scrutiny of the article of the statute under consideration (5644), it will be seen that it applies in terms: First, to any clerk, or other person who may labor, or perform, any service “in any office, store, saloon, hotel, shop, mine, quarry, factory or mill, of any character”; second, to any person who may perform any service “in cutting, preparation, hauling, handling, or transporting to any mill or other point for sale, manufacture, or other disposition, logs or timber,” or upon wagons or other means, of transporting such “logs or timber”; and, third, to “farm hands” working under contract for wages, etc. All of these persons are given a first lien upon the products, machinery, tools, fixtures, etc., “that may be created (in whole or in part)” by such labor, or that may be necessarily connected with the performance of the labor required that may be “owned” by or in “possession” of the employers.

It seems quite plain to us that the labor performed by appellee, and others under whom he claims, was not in any office, store, or other place named in the article of the statute, nor was it in the cutting, preparation, or hauling of logs or timber to a mill, nor was it as a farm hand, nor was the labor performed for the protection or creation of the property upon which the lien was foreclosed, nor for its betterment nor preservation, and hence entitled to priority of payment on equitable principles as developed in the decisions. See Provident Institution v. Mayor et al. of Jersey City, 113 U. S. 506, 5 Sup. Ct. 612, 28 L. Ed. 1102; McIlhenny Adm’r & U. T. Co. v. Binz, 80 Tex. 1, 13 S. W. 655, 26 Am. St. Rep. 705. Oil tlie contrary, the labor here was in sinking a well with machinery and tools used as mere in-strumentalities for the prosecution of a work not comprehended by article 5644. However true it may be that the ‘laborer is worthy of his hire,” and however desirable it may be that our Legislature should provide lien laws for the security of every class of labor, it has not-'thus far done so. No preference lien has been given by the law to a mere teamster not laboring upon a railroad, nor engaged in hauling logs to a sawmill, nor to a cowboy upon the horse he rides in rounding up his employer’s herds, nor in numerous other cases that might be mentioned.' Appellee cites a number of cases as supporting the judgment, but, in our opinion, they fall within the statute, arid hence are not in point, unless it is the case of Red Deer Oil Development Co. v. Huggins, 155 S. W. 949, in which a writ of error was refused by our Supreme Court (161 S. W. xvi). 'That seems to have been a case where laborers were awarded liens against certain property of the defendant engaged in drilling a well for the development company, but the character of the property upon which the lien was foreclosed does not appear. Erom a reading of the opinion we cannot say that it was, as here, -upon the drill machinery and tools with which the well was sunk. Moreover, no question in that case seems to have been made of whether the laborers brought themselves within the statute now under consideration. So that we feel at liberty to follow our own judgment in the matter.

It is accordingly ordered that the judgment below be reversed in the particular under cónsideration, and here rendered for appellant, as was done below, with a foreclosure of his mortgage lien against all parties defendant upon the property described in his petition, together with all costs in both courts.

On Motion for Rehearing.

Appellee presents a very forceful and persuasive motion for rehearing. No fault, of course, is found with our conclusion that the laborer’s lien is, by reason of the statute, superior to the contract lien previously executed and recorded, but it is plausibly insisted that the labor performed by appellee Claude Minor, and those whose claims he holds, was performed in a “mine,” and hence that such laborers are within the purview of Revised Statutes, art. 5644, quoted in our original opinion. The contention is that oil is a mineral, and that hence one engaged in the labor of extracting it from under the surface of the earth, whatever be the method of doing so, is a miner engaged in mining. Appellee so paraphrases the statute as to make it read:

“That whenever any * * * common laborer * * * may labor or perform any service in any * * * mine * * * of any character.”

—he is entitled to a lien, and emphasis is given the terms “of any character,” as qualifying the term “mine,” as well as the other terms of the statute, so that, as appellee contends, if drilling an oil well is mining “of any character,” then appellee is within the statute. It is to be implied from this argument that, while ordinarily a driller engaged in drilling or boring an oil well may not be classified as a “miner,” or as engaged in mining, in view of the qualifying terms it may and should be so held.

It will be found, however, that the article of the statute under consideration was accurately quoted in our original opinion, and that as so quoted the terms “of any character” qualify the terms “factory” and “mill,” and not the term “mine.” It should also be noted that in immediate connection with the word “mine,” the statute (article 5644) specifies a “quarry” as one of the protected places, and in other parts of the article names a “quarryman” as one of the classes of laborers intended to be benefited. Rock or stone in place may be a quarry, and one employed in its displacement for commercial purposes is a quarryman. Xet stone or rock in its most general sense is, like oil and gas, classed as mineral. 'If, therefore, the legislative body in the enactment of article 5644 entertained the view now urged in behalf of ap-pellee that any person employed in taking from or under the earth’s surface any substance whatever that is within the general classification of mineral is a miner, or performing service in or about a “mine,” then-no reason is perceived why the words “quarry” and “quarryman” should have been inserted in the statute. In that event the simple word “mine,” when applied to other-words of the statute, would have been all-sufficient. Indeed the use of the words, “mine” and “quarry” in immediate connection indicates that the word “mine” was not. used in any other sense than as ordinarily understood. This conclusion receives added force when it is remembered that in 1895, when the laborer’s lien law now considered was enacted, such a thing as an oil well in Texas was hardly thought of, or at least was not generally known and considered. The term “mine,” therefore, as used in the statute, must be construed as it stands without expansion or enlargement because of qualifying terms relating thereto. Our statute, so far as now pertinent, declares that:

“1. The ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such subject-matter. * * *”
“6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Revised Statutes 1911, art. 5502.

What then is the ordinary signification of the word “mine” ? We have examined numerous definitions of the terms “mine” and “mining,” and those given by Webster have perhaps received as general judicial approval as any. 1-Iis primary definition of “mine,” when used as a noun, is:

“An excavation, properly underground, for digging out some useful product, as ore, metal, or coal. (2) Any deposit of such material suitable for excavation and working; as a placer mine.”

When used as a verb the same lexicographer says “to mine” is:

“To obtain by digging out of the earth; also to make diggings into for ore or the like, as coal is mined. ‘They mined rich veins of silver.’ ”

Webster defines a miner as:

“One who mines.in any sense; especially one whoso occupation is to excavate ore, coal, etc., in a mine.”

In 27 Cyc. p. 531, it is said:

“The primary meaning of the word, ‘mine,’ standing alone, is an underground excavation made for the purpose of getting minerals; a pit or excavation in the earth from which metallic ores, or other mineral substances are taken by digging.”

While it is true that in classifying the earth’s substances oil is classed as a mineral (see 27 Cye. 532); and that the method of its extraction, whether by digging, trenching, or otherwise, is immaterial in a consideration of the question, yet as it seems to us the definitions given ’ are ordinarily referable to minerals in place, such as iron, gold, silver, salt, sulphur, etc., and not to substances, though classed as mineral, that are in solution and migratory such as gas and oil. It had not occurred to us on original hearing that the well, upon and about which Claude Minor and his assignors worked, was a “mine,” or that they were “miners,” and we feel safe in saying that ordinarily they would not be so designated, and by the statutory rule of construction quoted it is the ordinary, and not a strained or exceptional, significance that must be given the term “mine” as used in the statute, by virtue of which appellee claims. It is, we think, common knowledge that an oil well is simply so designated, and that the one engaged in its boring or drilling is designated as a driller. If this be true— and we do not think it can be gainsaid — we cannot designate an oil well as a mine, or the driller as a miner, without violating the rule of construction we are directed to follow, for it, by necessary implication, declares that words used in our civil enactments, when connected with a particular trade or subject-matter, must be given the signification attached to them by experts in such art or trade, or with reference to such subject-matter.

Appellee cites several cases, including Swayne v. Lone Acre Oil Co., 98 Tex. 597, 80 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117; Ohio Oil Co. v. Haughetee, 240 Ill. 361, 88 N. E. 818, 36 L. R. A. (N. S.) 1108; People v. Bell, 237 Ill. 332, 86 N. E. 593, 19 L. R. A. (N. S.) 746, 15 Ann. Cas. 511; Isom v. Rex Crude Oil Co., 147 Cal. 659, 82 Pac. 317; Poc v. Ulrey, 233 Ill. 56, 84 N. E. 46; McIntosh v. Ropp, 233 Pa. 497, 82 Atl. 949; Weaver v. Richards, 156 Mich. 320, 120 N. W. 818; Consumers’ Gas T. Co. v. Quinby, 137 Fed. 882, 70 C. C. A. 220; Berentz v. Belmont Oil Co., 148 Cal. 577, 84 Pac. 47, 113 Am. St. Rep. 308; Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 South. 867; Red-Deer Dev. Co. v. Huggins, 155 S. W. 949 — that in an indirect and inferential way seem to support his present contention that an oil well is a mine, but the cases that we have been able to find most nearly in point are the cases of Guffey Petroleum Co. v. Murrel, by the Supreme Court of Louisiana, reported in 127 La. 466, 53 South. 705, and Kreps v. Brady, by the Supreme Court of Oklahoma, reported in 37 Old. 754, 133 Pac. 217, 47 L. R. A. (N. S.) 106. In the case first mentioned, the court had under consideration the Constitution and laws of Louisiana, which, in substance, exempted from taxation property used in mining operations, and the exemption was claimed in that case by the oil company, the property involved being such as is usual in developing, storing, and marketing oil secured by drilling. In the course of the opinion the court defines the terms “mine” and a “mining operation” as understood in their most usual signification, and, among other things, said:

“A productive oil well or aggregation of them is always universally and invariably known as an ‘oil field.’ Who ever heard of such being called a ‘mine’? If an oil well was a ‘mine’ in the usual signification of the word, surely sometime, somewhere, some intelligent person would be heard to designate it by that term; but it is never done. Now a ‘mining operation’ must certainly be something having to do with a mine, and, if an oil well is never known in the ordinary and customary use of language as a ‘mine,’ then neither the making nor operating of one would possibly be considered a mining operation in the ordinary signification of the word. He who works in a mine is termed a ‘miner,’ but no one ever heard of a laborer at an oil well being called a ‘miner.’ It is shown by the testimony that an oil well is too small for a man to get into, even if such was necessary or desirable, which it is not. We think it absolutely clear that the words ‘mine’ or ‘mining operation’ never refer to oil wells or oil production in ordinary parlance.”

The Oklahoma case was one where the plaintiff sued for personal injuries caused by a fellow servant while working with or about a derrick and machinery of an oil well. It seems that by the laws of Oklahoma they have abrogated the common-law doctrine relieving the master from liability for injuries proximately caused by a fellow servant when the injuries are received while engaged in a mining operation. The court, therefore, found it necessary to determine in that case whether the drilling of oil wells was mining, and the court, after quoting numerous definitions of the words “mine,” “mines,” “to mine,” etc., concluded that drilling a well in search of oil or gas was not “mining” within the meaning of the law under consideration.

It would thus seem that unless we are to give a strained construction out of the ordinary to the term “mine,” as used in the laborers’ lien law (article 5614) we must adhere to the conclusion stated in our original opinion that appellee has not brought himself within that statute. In now concluding to do this we have not overlooked the rule of liberal construction appellee invokes. This rule, as prescribed by law, is that our statutes “shall be liberally construed with a view to effect their objects and to promote justice.” It cannot be said that the object of the Legislature in enacting article 5644 of the Revised Statutes was to give a lien to every laborer. As originally pointed out, the lien is only given laborers of designated classes, and the vital question for our determination is simply whether laborers of ap-pellee’s class are included in the legislative grant, and not whether his class ought to have been included. The latter question is for the Legislature, and not for the courts. Nor, so far as we can apprehend, are we required to give an unusual construction to the term “mine” in order to “promote justice.” The case before us is one where the owner of certain well-digging machinery sells it, and, to secure a part or all of the unpaid purchase money, reserves or takes a written lien upon all such machinery from the vendee and duly records the lien. The vendee thereafter employs the appellee and others who use and labor with such machinery in drilling an oil well. They do not labor upon or with such machinery in its creation or in or for its improvement, and thus benefit the owner or maker and raise a natural equity in themselves for payment. On the contrary, they use the machinery as mere instruments in the prosecution of their occupation; constantly deteriorating the same, and without which their occupation as drillers would be gone. Of the mortgage and of the fact that the machinery had not been paid for appellee and his assignors had full notice constructively by force of our registration statutes. Under such circumstances, what principle of justice is to be “promoted” by a determination of the question under consideration in appellee’s favor? Is it not at least a simple question of whether appel-lee has shown himself to be one of that class of laborers to whom the statute gives a first lien? We think it is, and in our thinking on the subject no reason has occurred to us why, if appellee is within the particular statute under consideration, the borer or driller for ordinary artesian or other water is not also, and no one thus far has so contended, for water, as oil and gas is likewise classed as a mineral in the kingdoms of matter. See Ridgway Light & Heat Co. v. Elk County, 101 Pa. 465, 43 Atl. 323. In 5 Words and Phrases, p. 4515, citing Westmoreland & Cambria Natural Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731, the writer says:

“Water, like gas and oil, is a mineral, but a mineral with peculiar attributes. The decisions in ordinary cases of mineral rights, etc., have never been held as unqualified precedents in regard to flowing, or even to percolating waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy is not too fanciful, as minerals ferae naturae. In common with animals, and unlike oilier minerals, they have the power and tendency to escape without the volition of the owner.”

See, also, Texas Co. v. Daugherty, 176 S. W. 717; Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S. W. 740, 69 L. R. A. (N. S.) 986, 8 Ann. Cas. 1117. To extend the benefit of the statute to the driller for oil and not to the driller for water, while the conditions are so similar, would at least seem to violate the spirit of section 3, art. 1, of our Constitution, which declares that:

“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

We conclude that appellee’s motion for rehearing must be overruled.
      <&wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    HUNTER v. HUNTER.
    (No. 89.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 13, 1916.
    Rehearing Denied July 3, 1916.)
    1. TRIAL &wkey;314(l) — REMARKS 01? C'OUET>-Co-ercion op Jury.
    When the jury had been out two days and asked to be discharged, it was highly improper for the judge to reply that the trial had been costly and that he would give .them eight nwre days to reach a verdict, where, in view of terrific storm conditions and lack of communication with their homes, the jury might have been and apparently were coerced into rendering a compromise verdict.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dec. Dig. &wkey;314(l).]
    2. New Trial &wkey;2G — Preservation op Exceptions— Remarks op Court — Time to Object.
    Where appellant’s counsel was present and made no objection to erroneous remarks of the court in retiring the jury after its request to be discharged, his objection to the error came too late in motion for new trial made a week later.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 37-39; Dec. Dig. &wkey;26J S. Divorce <&wkey;149 — Conplict in Verdict — Custody op Children.
    Error cannot bo predicated on the alleged conflict in the verdict which found the mother entitled to a divorce and custody of two girls, but not a fit and proper person to have custody of a boy; no actual conflict necessarily following from such findings.
    [Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 496-498; Dec. Dig. <&wkey;149.]
    4. Appeal and Error &wkey;>690(4) — Record — Admission op Testimony — Scope of Review — Sufficiency.
    In the absence from the record of any statement of facts, error alleged in admission of testimony will not be reviewed, there being no way to determine whether the admission was error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2899; Dec. Dig. <&wkey;>690(4).]
    5. Divorce <&wkey;302 — Decree—Fundamental Error — Inconsistent Findings.
    It was not fundamental error for the judgment to award divorce to the wife with custody of two girls and deny custody of a boy to her, on the ground that it was not in accordance with the verdict, which, while not in conflict in itself, required such disposition.
    [Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 791, 792; Dec. Dig. <®=^302.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Suit by P. I. Hunter against D. L. Hunter, wherein defendant filed a cross-action and sued out injunction. Judgment awarding divorce and custody of two children to defendant, and custody of one child to plaintiff, and defendant appeals.
    Affirmed.
    Smith & Lanier, of Jasper, and Thomas &'Wheat, of Woodville, for appellant. Mooney & Shivers, of Woodville, for appellee.
   MIDDLEBROOK, J.

This is a suit filed in the district court of Tyler county, Tex., July 10, 1915, for divorce, on the ground of three years’ permanent abandonment. Defendant, D. L. Hunter, filed her answer and cross-action on July 29, 1915, denying plaintiff’s right to recover a • divorce of her, and in cross-petition pleaded for divorce in her own behalf, basing such plea upon the ground of cruel treatment. The trial of the case began on the 16th day of August, and was finally finished on the 21st day of August, the jury rendering verdict in favor of the defendant on her cross-action.

Upon filing of petition by the plaintiff, defendant sued out an injunction, asking that the plaintiff be restrained from interfering with her three children, two of whom were girls and one, a boy. The defendant alleged in her petition for injunction that after filing of suit by the plaintiff, but before citation was served on her, the plaintiff wrongfully took charge of John R. Hunter, the boy, who was only five years old, and that she feared he would remove him beyond her reach, and out of the state, into the state of Louisiana. The injunction was granted on this petition, and an order entered commanding the delivery of the boy, John R. Hunter, back to the mother, D. L. Hunter. Later this order was modified by the district judge, on petition of P. I. Hunter and upon a representation to the court by him that he would not take the child out of the state, and that he would have the child present at the trial of the ease. The case was tried before a jury and was submitted to the jury upon special issues, after a general instruction to the jury, as to grounds of divorce.

The five special issues submitted to the jury by the court, as presented by the record, are as follows:

(1) Is the plaintiff, under the facts and pleadings, entitled to a divorce?

(2) Is the defendant, Mrs. D. L. Hunter, under the facts and circumstances, entitled to a divorce?

(3) Is the plaintiff a fit and proper person to have the care and custody of the boy, John R. Hunter?

(4) Is Mrs. D, L. Hunter a fit and proper person to have the care’ and custody of the three children?

(5) Would the interests of the children be best subserved by placing their care and custody in the hands of Mrs. D. L. Hunter, or by placing the care and custody of the two girls in the hands of Mrs. D. L. Hunter, and the care and custody of the boy, John R. Hunter, in the hands of P. I. Hunter?

The jury answered the first question, “No.” It answered the second question, “Yes.” It answered the third question, “Yes.” The instruction given to the jury, as to their answer to the fifth question, was as follows:

“If you find the fact to be that the best interests of the three children will be best sub-served by placing their care and custody in the hands of Mrs. D. L. Hunter, then you will answer this question with the words: ‘Mrs. D. L. Hunter’; but if you find the fact to be that the best interests of the children -will be sub-served by placing the care and custody of the two girls in the hands of Mrs. D. L. Hunter, and the care and custody of the boy, John R. Hunter, in the hands of Mr. P. I. Hunter, then you will answer this question as follows: ‘Give the gii-ls to Mrs. D. U. Hunter, and give the boy to Mr. P. I. Hunter.’ ”

The jury answered that question: “Give the girls to Sirs. D. D. Hunter, and give the boy to Mr. P. I. Hunter.” Judgment was entered by the trial court, giving the custody of the two girls in the care of Mrs. D,. D. Hunter, and the custody of the hoy in the care of P. I. Hunter, and also a decree of divorcement, in the following language:

“It is therefore ordered, adjudged, and decreed by the court that the bonds of matrimony heretofore existing between the plaintiff, P. I. Hunter, and D. L. Hunter be, and are hereby, in all things dissolved, and they are now divorced.”

P. I. Hunter, the plaintiff, in supplemental petition ashed for the care and custody of the boy, and represented in his petition, which was sworn to, that he was better able to care for, support, and educate the boy than was Mrs. D. Xj. Hunter and that he desired to give the boy a c-ollegiate education, as he had one of his sons by another marriage.

There is no statement of facts in the record in this case, hence the only thing before us for consideration is whether or not the record presents fundamental /error. The record, as presented, shows that the trial of this case was in progress during the notorious storm, which struck southeast and east Texas on or about the 16th of August. After the jury had deliberated upon a verdict for 18 hours, it returned into open court in body, and the foreman of the jury delivered to the trial judge the following written request:

“Judge A. E. Davis: We are hopelessly divided in this cause, and there are no hopes of reaching a verdict, and we would like to be excused. [Signed] D. G. Miller, Foreman.”

Upon receiving this message from the jury, the trial judge addressed the jury as follows: “Mr. Miller, did you write this note?” Mr. Miller answered, “Yes.” The trial court then asked the jurors if they had asked the foreman to write the note, to which they answered they had, and the trial judge then addressed the jury, substantially, as follows:

“Gentlemen, it has taken about three days to try this case, and at considerable cost, and I will just give you until midnight of next Saturday night to reach a verdict in this case.”

Pie retired the jury to their room, with this instruction, and in about six hours they again returned into open court, with the verdict heretofore set out.

Appellant’s first assignment of error is lengthy, but it complains of the action of the trial court in the remarks he made to the jury, when the jury came before him, after they had been deliberating about 18 hours, and announced that they were hopelessly divided and asked to be discharged. The assignment of error, the motion for new trial, and the bill of exceptions show that the case was on trial during the notorious August, 1915, storm, and the contention of the appellant in her motion for new trial and assignment of error, is that the trial court, in instructing the jury that he would keep them in consideration of the case until Saturday night August 28th, was a coercion by the court, upon the jury to extort a verdict from them, and that it did have the effect of extorting a verdict from them, and that such extortion is reflected in that part of the jury’s verdict, wherein they say that Mrs. D. L. Hunter is not a proper person to have the care and custody of the boy, and yet give her the care and custody of the two girls.

We think, unquestionably, that the language of the trial court to the jury, in which he threatened to keep them together for eight more days, after they had deliberated upon a verdict for a part of two days, was very improper. We all know that courts are very expensive, and judges of courts are to be commended for their zeal and industry directed to the end that the most may be done at the least cost; but under no circumstances should a trial judge let his zeal for an economical administration of justice swerve him from that high authority with which the law clothes him to see that justice is administered, at whatever the cost may be. It is very likely, practically certain, that the instruction delivered to the jury by the trial judge, at the time and under the surroundings under which the jury was then deliberating, had the effect to cause them to return a compromise verdict. The motion for new trial, and the bill of exceptions duly approved by the trial court, show that this occurred during the great hurricane before mentioned. They show also that telephone communication and telegraph communication were out of commission, and that the jurors were away from home; and it is not necessary to speculate upon the condition of the minds of those jurors at that time, and especially when the court told them he would give them until the next Saturday night at midnight, eight days later, to find a verdict; and if timely objection had been made to this language, and proper bill of exception taken, .this assignment of error would present a very serious issue in this case, and would, perhaps, cause a reversal of the case. Wootan v. Partridge, 39 Tex. Civ. App. 346, 87 S. W. 356; G., C. & S. F. Ry. Co. v. Johnson, 99 Tex. 341, 90 S. W. 164; Pecos & N. T. Ry. Co. v. Finklea, 155 S. W. 617; Texas Midland Ry. Co. v. Byrd, 41 Tex. Civ. App. 164, 90 S. W. 185, and authorities therein cited.

There is, however, another feature in the proceedings of this case that cannot be overlooked by the appellate court. The motion for new trial is sworn to by one of the attorneys. The motion for new trial has the objectionable remarks of the court to the jury copied in full, together with the jury’s request to the court. Appellant’s counsel, according to his affidavit, must have been present at the time the instruction was given by tbe trial court to the jury. His affidavit winds up: “Wlio being by me duly sworn, upon oath, deposes and says the statements made in said motion are true.” He could not have made the affidavit in these words, unless he had been present and heard the instructions given by the court to the jury. It is asserted also, in appellee’s brief, that counsel for appellant was present at the time and heard the instructions given, and that no complaint was raised until the presentation in court of motion for new trial on August 27th, nearly a week later. The question is: Can appellant be heard to complain at so late a day, after the instruction was given by the court to the jury? It would seem that at the time the instruction was given by the court to the jury, it was satisfactory to appellant’s counsel. It must have been satisfactory, because no objection was raised to it, and no doubt, had the jury seen fit to give the boy to his mother, the appellant, no complaint would have ever been heard from appellant on the instruction given by the court to the jury. We think it is too late, in a proceeding of this case, to raise the issue on motion for new trial, and, in order to get the benefit of such error, it is necessary for objection to be raised and exception reserved thereto at the time. Had such been done, it is more than probable that the trial court would have seen his error, retraced his steps, and instructed the jury not to consider what he had said to them, but to go and consider further of their verdict, and reach a conclusion, if they could do so. True, this is speculation, but ordinarily trial judges are quick and willing to correct any "error made by them during the proceedings of a trial, when their attention is called to it.

In Renn et al. v. Samos et al., 42 Tex. 110, we think the Supreme Court announced the correct doctrine as to the error complained of here. Associate Justice Moore in writing the opinion in that case, says:

“In reference to the alleged error of the court in telling' the jury ‘to find some character of verdict, as both parties preferred any verdict rather than a mistrial, as the case would be taken to the Supreme Court, let their verdict be what it might,’ it will suffice to say that this statement, as the judge certifies, was made to the jury at the instance of appellant’s counsel. If so, surely he should not complain of it. Nor does it appear from the supposed bill of exception found in the record that appellant’s counsel excepted to the action of the court at the time it was had. The inference is that he did not do this until after the jury returned their verdict.”

The Supreme Court affirmed that case, and perhaps there is no less vice, as measured by the law, in the statements by the trial court in that case than in the instant case. We think appellant’s complaint came too late, and his assignment of error is overruled.

Appellant’s second assignment of error is:

“The verdict of the jury should be set aside, because the same is inconsistent with the facts in the case and with itself, in that it finds that she is entitled to a divorce under the allegations of her petition but that he is not.”

Appellant’s proposition under this assignment is to the effect that the verdict of the jury is in conflict with itself, which shows it to have been reached because of some improper influence, and is so inconsistent as to be insufficient upon which to base a written judgment. The reasoning, as set forth in appellant’s brief, is to the effect that the jury having found appellant entitled under the pleadings and facts to a divorce and found the appellee (plaintiff below) not entitled to a divorce, under the pleadings and facts of the case, and having also found that the appellant (defendant below) was not a proper and fit person to have the care and custody of the boy, are directly in conflict with each other, the argument being that there is no rule by which the conflicting (as contended by appellant) findings of the jury, that Mrs. Hunter was entitled to a divorce on her plea of cruel treatment and Mr. Hunter denied a divorce on his plea of three years’ abandonment, and Mrs. Hunter pronounced by the jury not a fit and proper person to have the care and custody of the boy and Mr. Hunter to be a proper person to have the care and custody of the boy, can be harmonized.

Appellant stresses the finding of the jury that Mrs. Hunter is not a fit and proper person to have the care and custody of the boy from the standpoint that it casts a reflection upon her, on the one hand, and then stresses the absurdity of giving her the care and custody of the girls while she is an unfit person to have the care and custody of the boy. We have no way of weighing the facts in this case, there being no statement of facts in the record, but certainly, a jury’s finding that a mother is not the proper and fit person to have the care and custody, maintenance, education, etc., of a boy does not cast any reflection upon the good name of the mother of that boy. It is altogether owing to what meaning you apply to the term “fit and proper,” and, as the record is presented before us, there is but one conclusion for us to come to, and that is that the trial court and the jury found that the father was better able to take care of and educate the boy. In other words, that the boy’s opportunities for life would be enhanced by being provided for by the father, beyond what they would be by having to be provided for by the mother. Certainly it cannot be considered fundamental error, as the case is presented. Lohmuller v. Lohmuller, 135 S. W. 751; Moore v. Moore, 22 Tex. 237.

Appellant’s third assignment of error complains of the action of the trial court in admitting the testimony of a number of witnesses for plaintiff, because the same calls for the conclusions of the witnesses. As before stated, there is no statement of facts in this record, and, such being the case, there is no way for this court to determine whether the testimony was improperly admitted or not.

“As fundamental error and independent proposition,” appellant submits “The judgment must be rendered in accordance with the verdict, or the same will be set aside.” In our consideration of appellant’s assignment No. 2, we have discussed the issues which might be presented under this assignment, and wo do not' think, as before stated in this opinion, that, because a jury finds that the mother of the boy is not the fit and proper person to have the care and custody, education, and maintenance of him, and in the same verdict finds that she is the proper person to have the care, custody, education, and maintenance of her girls, they are necessarily inconsistent findings. Indeed, as the issues were presented to the jury by the trial court, they might be consistent findings, and that, too, without any reflections upon the mother of the boy. Certainly, there is not fundamental error presented in this issue.

There being no statement of facts in the record, and no fundamental error appearing, there is but one course for this court to pursue; that is, to affirm the case, and it is so ordered.

Affirmed.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    PEIL et al. v. WARREN, Jr., et al.

    (No. 7157.)
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1916.
    Rehearing Denied June 29, 1916.)
    1. Witnesses <&wkey;>150(3) — “Suit between Heirs” — Transactions with Decedent — Statute.
    A suit for partition, brought by plaintiff as heir of her deceased father against her brother and her sister, the only other surviving heirs jointly and equally interested therein, where it appeared that the sister and her husband had conveyed to the brother all their interest in the land except in certain tracts, and where the only issue was whether the brother owned in his own right, as a partner of Ms father, a one-half undivided interest in certain tracts, was a suit by or between heirs of a decedent as such, within Vernon’s ’ Say les’ Ann. Civ. St. 1914, art. 3690, so that testimony of the sister and her husband and of the brother as to statements made by and transactions had with the deceased father, tending to show that the brother was a partner in a land business and owned a one-half interest in several tracts involved in the suit, was inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 655; Dee. Dig. <&wkey;>150(3).]
    2. Witnesses <&wkey; 155 — Transactions with Decedent — “Opposite Parties.”
    In such suit, where it was contended that the defendant brother was sued in his individual capacity and not as heir of his deceased father, and that the defendant sister and her husband were not adversely interested to plaintiffs, but where the sister’s answer began with a demurrer to the petition and included a general denial of its allegations and opposed the partition of the land involved, their testimony as to transactions with and statements by their deceased father relative to matters involved in the suit was inadmissible within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, rendering evidence as to such transactions and statements inadmissible unless the party is called to testify thereto by the opposite party, since the defendants were “opposite parties” to plaintiff, regardless of whether they wore interested in the subject-matter of the suit or not.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. <@^155.
    For other definitions, see Words and Phrases, First and Second Senes, Opposite Party.]
    3. Witnesses <&wkey;37(l) — Competency — In General.
    Under the general rules of evidence, all persons are competent witnesses to testify to any fact which is relative and material to the matter under investigation, and which is within their knowledge, ánd are disqualified, to so testify only because excepted by some special statute.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 80, 83, 87; Dec. Dig. &wkey;37(l).]
    4. Appeal and Error <&wkey;1052(8) — Harmless Error — Admission of Evidence.
    In a suit for partition, error in the admission of evidence of transactions with and statements by the deceased father of the parties was harmless, where the other independent evidence in the case was not such as to require the court to render a different judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4177; Dec. Dig. &wkey;> 1052(8).]
    5. Partition <&wkey;63(3) — Suejticiency oe Evidence.
    Evidence held sufficient to support a verdict for plaintiff with an award of a one-half interest in certain tracts to the brother as partnership land of himself and the deceased.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 185; Dec. Dig. <&wkey;>63(3).]
    Error from District Court, Harris County; Chas. B. Ashe, Judge.
    Suit for partition by Mary G. Peil and husband against John Warren, Jr., and others. Judgment for plaintiffs, allowing a one-half interest in certain tracts to defendant John Warren, Jr., and plaintiffs bring error.
    Affirmed.
    W. S. Hunt and Roberts & Sears, all of Plouston, for plaintiffs in error. Campbell, Sewall & Myer and Hutcheson & Hutcheson, all of Houston, for defendants in error.

      Application for writ of error pending in Supreme Court.

   LANE, J.

This suit was instituted by Mary G. Peil and husband, W. J. Peil, against John Warren, Jr., and Mrs. Eliza J. Ellis and husband, George Ellis, for partition of certain tracts of land described as follows: T. Coghill survey of 1,476 acres more or less; A. Culliver survey of 1,476 acres more or less; Samuel Everetts survey of 220 acres more or less; Samuel McCurley survey of 245 acres more or loss; lots 5, 11, 12, 15, section 22, of Harris county school lands, containing 163 acres more or less; J. Hudson survey of 640 acres more or less; G. N. Kinman survey of 373 acres more or less; Geo. Pembleton survey of 640 acres more or less; "Walter Wade survey of 580 acres more or less; H. T. & B. Ry. Go.- survey of 640 acres more or less; A. B. Langerman survey of 98.52 acres more or less.

It is alleged in plaintiffs’ petition that all of said land was tlie property of John Warren, Sr., at the time of his death; that he died intestate, and that plaintiff Mary Peil and defendants John Warren, Jr., and Mrs. Eliza Ellis were the children and only surviving heirs of said John Warren, Sr., and that they were jointly and equally interested therein.

Eliza J. Ellis and husband, George Ellis, answered, alleging that they had sold and conveyed to John Warren, Jr., all interest owned by them in all of said tracts of land except the T. Goghill tract of 1,476 acres, tlie A. Gulliver tract of 1,476 acres and lots 5, 11, and 15, section 22, of Harris county school lands of 163 acres.

John Warren, Jr., the'other defendant, admitted that the deeds of conveyance, of record in Harris county, showed that all said land was conveyed to John Warren, Sr., deceased, and that the legal title, apparent of record, was in John Warren, Sr., but he alleged that at and prior to the time -the said J. Hudson tract of 640 acres; the G. N. Kin-man tract of 363 acres; the Geo. Pembleton tract of 640 acres; the Walter Wade tract of 580 acres; the H., T. & B. Ry. Go. tract of 640 acres; and the n.. B. Langerman tract of 9S.52 acres; or any of them — were deeded to said John Warren, Sr., he, the said John Warren, Jr., and John Warren, Sr., were engaged as copartners in the business of buying and holding land and raising cattle under the name of John Warren, and that said last-named six tracts of land were so purchased by them; that while the land in fact was conveyed to John Warren, Sr., it was purchased for said partnership and paid for out of the funds of said copartnership, or that one-half of the purchase money was paid by each of said partners, and that the legal title thereto was held by John Warren, Sr., in trust for said copartnership; that the said John Warren, Sr., and he, the said John Warren, Jr., each owned a one-half interest in all of said copartnership property.

It was admitted by all parties that whatever lands belonged to John Warren, Sr., at the time of his death was jointly and equally owned by plaintiff Mrs. Peil, Mrs. Ellis, and John Warren, Jr.; that thereafter Mrs. Ellis, joined by her husband, George Ellis, conveyed all their undivided interest in all of said land to John Warren, Jr., except their one-third undivided interest in the Cog-hill, Gulliver and Harris county school land tracts, and that they now hold vendor’s lien notes executed by John Warren, Jr., for part of said purchase money, which they are setting up in this suit as liens on said land so sold by them.

The only controversy is as to whether or not John Warren, Jr., owned in his own right as a partner of his father, John Warren, Sr., one-half undivided interest in the Hudson, Kinman, Pembleton, Wade, Langer-man, and H., T. & B. Ry. Co. tracts.

The case was tried before a jury upon special issues in substance as follows:

First. Were the George Pembleton, Walter Wade, J. Hudson, G. N. Kinman, A. B. Langerman, and H., T. & B. Ry. Co. tracts paid for out of the proceeds of the sale of cattle or other livestock belonging to the firm composed of John Warren, Sr., and John Warren, Jr.? <

Second. At the timé of the purchase of the above-named tracts, was there an agreement between John Wárren, Sr., and John Warren, Jr., that John Warren, Jr., was to have a one-half interest in said tracts?

The jury answered both of said questions in the affirmative. Upon the answers of the jury the court rendered judgment as prayed for by plaintiffs, except that one-half undivided interest in the J. Hudson, G. N. Kin-man, George Pembleton, Walter Wade, A. B. Langerman, and H., T. & B. Ry. Go. tracts were awarded by the same to John Warren, Jr., as his one-half interest in the partnership land of himself and John Warren, Sr., deceased, and except that the vendor’s lien asserted by Mrs. Eliza Ellis against a certain interest in said lands sold by her to John Warren, Jr., was foreclosed as against such interest so sold. From this judgment the plaintiffs Mary J. Peil and husband, W. J. Peil, have appealed.

By appellants’ first, second, and third assignments it is insisted that the court erred in permitting George Ellis, Eliza Ellis, and John Warren, Jr., to testify to certain statements made by, and transactions had with, John Warren, Sr., deceased, tending to show that John Warren, Sr., and John Warren, Jr., were partners in a cattle and land business as alleged by John Warren, Jr., and that he, John Warren, Jr., owned a one-half interest in several tracts of the land involved in this suit, because this was a suit by plaintiffs as heirs of John Warren, Sr., against defendants, other heirs of said John Warren, Sr.; and that the admission of such testimony was in violation of the provisions of article 3690. Vernon’s Sayles’ Statutes, wherein it is provided that:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Appellees contend that article 3690, supra, has no application to a suit of this character: (1) Because this is not a suit by or against heirs of a decedent as such, and not one in which judgment may be rendered for or against heirs as such, but is a suit between heirs of a decedent in their individual capacity; and (2) that the testimony of defendants Eliza Ellis and George Ellis was admissible because neither of them were adversely interested to the plaintiffs. W.e do not think that either of such contentions is tenable. Plaintiffs Mary Peil and husband sue for an interest in the land described in their petition, and pray for a partition thereof for Mary Peil as an heir of John Warren, Sr. No claim whatever is made to any portion of said land by plaintiffs, except that Mary Peil inherited the same as such heir. They sue all the defendants as heirs of John Warren, Sr., and specially alleged that the defendants have an interest in said land as such heirs. Mrs. Eliza Ellis and husband, George Eliis, assert no claim to any interest in said land except as such heirs. Defendant John Warren, Jr., also claims a certain interest in said land as an heir of John Warren, Sr. We think the suit was clearly a suit by heirs as such, and that it was also a suit against heirs as such, and that the provisions of article 3690, Vernon’s Sayles’ Statutes, does apply as contended by the plaintiffs.

All the witnesses whose testimony was objected to were parties to the suit and interested in the subject-matter thereof, and all of them were “opposite parties” from the plaintiffs, as that term is used in said article 3690. There is no contention that John Warren, Jr., is not such “opposite party,” but it is contended that he is sued in his individual capacity, and not as an heir of John Warren, Sr. It is also contended that Eliza Ellis and husband, George Ellis, are not adversely interested to plaintiffs and that therefore the provisions of article 3690, supra, do not, as to either of them, apply. If we look to the answer of Ellis and wife, we find that they begin their answer by a demurrer to plaintiffs’ petition; that they make a general denial of all and singular the allegations of said petition, and that they specially oppose the partition of the land involved, as prayed for by plaintiffs. We think they are clearly “opposite parties” to plaintiffs, as that term is used in the statute mentioned. Wie also think the testimony objected to was with reference to transactions with, and statements made by, John Warren, Sr., relative to matters involved in this suit, and therefore was inadmissible, and that the trial court erred in admitting the same over the objection urged thereto. Under the general rules of evidence in this state, all persons are competent witnesses to testify to any fact which is relative and material to the matter under investigation, and which is within the knowledge of such person, and if they are disqualified to so testify, it is only by reason that they have been excepted out of the general rule by some special statute. Article 3690, supra, is a statute which specifically provides an exception to the general rule above referred to, and specially provides that, in actions by or against heirs, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, etc., the persons excluded from testifying in the case mentioned are excluded only because they are specially excepted out of the general rule of evidence. This statute excludes parties to the suit specifically, and it therefore makes no difference whether they are interested in the subject-matter of the suit or not. If they are the “other party,” opposite party, to those in the suit who object to their testimony, and who did not call them to testify, they were incompetent witnesses to testify to transactions with, and statements made by, the intestate, relative to the matters in dispute, because, and only because, they are made incompetent by the statute. Colonial & U. S. Mort. Co. v. Thedford, 21 Tex. Civ. App. 254, 51 S. W. 263; Roberts v. Yarboro, 41 Tex. 449; Gilder v. Brenham, 67 Tex. 345, 3 S. W. 309; Grange Warehouse Ass’n v. Owen, 86 Tenn. 355, 7 S. W, 457; Newton v. Newton, 77 Tex. 510; 14 S. W. 157; Howard v. Galbraith, 30 S. W. 689; Wallace v. Stevens, 74 Tex. 560, 12 S. W. 283. In the case of Roberts v. Yarboro, supra, our Supreme Court said:

“1. In the courts of this state there shall be no exclusion of any witness on account of color, nor in civil actions, because he is a party to or interested in the issues tried.
“2. In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, or any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.
“The executor or administrator of Yarboro was not a party to this suit, and the prohibition, taken literally, does not support the ruling of the court. There is no ambiguity in the wording of the statute, nor can there be said to be any doubt arising out of the language of the law as to the intention of the Legislature in its enactment. ‘It is not for the court to say, where the language of a statute is clear, that it shall be so construed as to embrace cases because no good reason can be assigned why they were excluded from its provisions.’ Denn v. Reid, 10 Pet. 526 [9 L. Ed. 519] and see Potter’s Dwarris on Statutes, 143-146. If, however, we look to the reason of the law, it will be difficult to pronounce that it applies as fully to a surviving partner as it does to éxecutors, administrators, or guardians. It is well suggested in the brief of appellant that the surviving partner is himself interested in the suit, and has a stimulus to activity and vigilance which is ordinarily wanting in administrators and guardians. For naught that appears, the object of the exception is to protect estates and lands, because of the fact that they are represented imperfectly by agents ordinarily appointed by the law.
“Even if it were admitted that the reason of the law applies with full force to this case, and the.attempt be made to extend the statute by construction, so as to embrace surviving partners, it cannot be accomplished without unsettling settled rules of construction. In Tyson v. Britton, 6 Tex. 224, Chief Justice Hemphill says: ‘The Legislature has prescribed a general rule, with special disabilities or privileges, and these cannot be enlarged or extended to objects not embraced in the exception by mere implication or from parity of reason.’ To the same effect is the language of Judge Story, in United States v. Dickson, 15 Pet. 165 [10 L. Ed. 689]: ‘When the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fully within its terms.’ The general rule is prescribed by the statute that no witness shall be excluded because he is a party to or interested in the suit. The second section is, in substance, a proviso excepting parties in certain actions from the operation of the rule. The rule as established extends a privilege to parties, while the exception operates to curtail that privilege or right, and should not therefore be extended by construction.”

In Wallace v. Stevens, supra, it is said.:

“Following well-known rules of construction of statutes, the Supreme Court of this state, in discussing the foregoing statutes, has declared that where a general rule has been established by statute with exceptions, the courts will not curtail the rule or add to the exceptions by implication. Roberts v. Xarboro, 41 Tex. 452.”

In Grange Warehouse Co. v. Owen, supra, the Supreme Court of Tennessee, in construing a statute identical with our article 3690, said:

“Under our statute, interest does not disqualify in suits by or against executors, administrators, etc. Exclusion goes only to parties to the suit. It is an exception to the statute removing the disability of interest, and, as such, is to be construed strictly. ‘In actions or proceedings by or against executors,’ etc., ‘neither party sthall be allowed to testify against the other.’ ”

We conclude that the testimony objected to was inadmissible, and should have been excluded, and that if the other evidence in the case, independent of such testimony erroneously admitted, was not such as to require the court to render judgment for the defendants, or, in other words, if such other evidence was not such as would support no other verdict than that found by the jury, the judgment rendered should be reversed, and his case remanded for another trial.

In view of what has been already said, the next inquiry is, Is the evidence in the case, independent of that which we have held was erroneously admitted, such as would admit of only such verdict as was rendered by the jury? Such question can only be answered by a review of the testimony of the witnesses other than the parties to the suit.

J. W. Anderson testified, that he had worked for John Warren, Sr., and John Warren, Jr., for 18 years; that he had known all the Warren family all his life; that John Warren, Sr., and John Warren, Jr., were partners in the stock business; that they told him that they had bought the J. Hudson, George ■ Pembleton, and Walter Wade surveys of land containing 640, 640, .and 580 acres, respectively, known as the Turner land, and that they wanted him to sell certain of their horses and mules to pay for said land; that these lands were inclosed in a pasture, and that the firm of Warren used said pasture for the purpose of grazing their stock, cattle, horses, and mules; that he sold some of their stock, and that the Warrens told him that they wanted the money (proceeds of such sale) to pay for the Turner land; that in 1900 he sold about $3,000 worth of cattle for said firm, and turned the money over to John Warren, Sr.; that while he worked for the firm he took fat cattle to the New Orleans market four or five times each year and sold them; that he had conversations with John Warren, Sr., when he worked for them, in which said John Warren, Sr., told him that his son John Warren, Jr., and himself owned all lands at the ranch together, and that he always referred to the whole thing as their place.

T. I-I. White, for defendant, testified that in 1902 or 1908 he talked to John Warren Sr., and that in such conversation he told him (White) that he and his son had bought a tract of land together; that he and his son John owned several hundred acres across the railroad track.

W. E. Ellis, for defendant, testified that John Warren, Sr., told him that John Warren, Jr., owned a half interest in the land and stock business; that witness is a grandson of John Warren, deceased; that his said grandfather told him that John Warren, Jr., and himself had jointly purchased the land known as the “Turner land”; that he also told him that he and John Warren, Jr., were each one-half owners of the land bought since the wife of John Warren, Sr., died, and in all the stock, but did not mention any particular tracts.

It is shown by the undisputed evidence that the plaintiffs and defendants in this cause- instituted, or caused to be instituted, a suit against one Mrs. Goodrich to recover all the real and personal property belonging to the estate of John Warren, Sr., deceased, and that a list of the property belonging to said estate was furnished by them to their attorneys to enable them to file their petition ; that the said list so furnished showed that said John Warren, Sr., only owned a one-half undivided interest in the tracts of land in controversy between the plaintiffs in this cause, Mrs. Peil and husband, W. J. Peil, and defendant John Warren, Jr.; that said petition was prepared from the information so furnished and that on the 27th day of November, 1911, a decree was rendered in favor of said parties plaintiff in said Goodrich suit, and that in said decree only a one-half undivided interest in said tracts in controversy was adjudged to belong to the estate of John Wiarren, Sr., deceased. It was, or seemed to be, conceded at that time that John Warren, Sr., only owned a one-half interest in said lands in controversy, and that John Warren, Jr., owned the other one-half interest therein.

Ben Campbell, now mayor of Houston, for defendant, testified that he knew of the partnership which existed between John Warren, Sr., and John Warren, Jr.; that both of these parties told him several years prior to the institution of this suit, while both were present, that they had, after the death of the wife of John Warren, Sr., bought and jointly owned the following tracts of land: J. Hudson tract of 640 acres; G. N. Kinman tract of 373 acres; George Pembleton tract of 640 acres; Walter Wade tract of 5S0 acres; and the H. T. & B. R. R. tract of 640 acres; that they owned said tracts jointly, and that at that time he made a memoranda in his own handwriting of the tracts so designated, and that the memoranda shown him at the trial of this case was the list of the property so made by him, and that said memoranda or list of said lands is in his own handwriting ; that in that conversation in which said tracts of land were given to him as the joint property of John Warren, Sr., and John Warren, Jr., John Warren Sr., was the principal spokesman, and furnished the list so reduced to writing by said witness; that he never heard any one dispute the fact that John Warren, Jr., owned a one-half undivided interest in said lands with his father, until about the time this suit was brought, although all the parties had discussed the property rights of John Warren, Sr., with him as their attorney. He also testified that some time after the above memoranda was made by him, John Warren, Sr., and John Warren, Jr., jointly purchased the Langer-man tract of about 98 acres. This purchase was made in or about the year 1905. This witness testified that he was the attorney for said parties, and that at the time said list of property was given to him by John Warren, Sr., as tire joint property of himself and John Warren, Jr., they were informing him as to what properties belonged to the com-mitnity estate of John Warren, Sr., and his deceased wife, with a view of making a settlement of said éstate.

Witnesses Pattillo Higgins and J. R. Jester testified that in negotiating an oil lease of certain lands with John Warren, Sr., he, Warren, refused to make the lease until he could confer with John Warren, Jr., saying that they, John Warren, Sr., and John Warren, Jr., owned the lands together, and that John Warren, Sr., told them that he wanted them to pay one-half of the lease money to him and the other one-half to his son, John, Jr.

The foregoing testimony and evidence stands practically undisputed, and wé think demands the rendition of the judgment rendered by the trial court.

We have reached the conclusion that no verdict or judgment other than that reached by the jury and rendered by the trial court could be sustained by the evidence adduced upon trial, independent of the testimony of Eliza Ellis, George Ellis, and John Warren, Jr., parties to the suit, which was admitted over the objection of appellants. Having so concluded, we further conclude that the admission of evidence objected to was harmless, and that the judgment of the trial court should be affirmed; and it is so ordered.

Affirmed.
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