author: XANTIS, J.

text:
    MALAKOFF GIN CO. v. RIDDLESPERGER et al.
    (No. 2486.)
    (Supreme Court of Texas.
    Feb. 28, 1917.)
    1. INJUNCTION <&wkey;61(2) — Contracts Not to Engage in Particular Business — Nominal Damages.
    In an action for breach of a contract for the sale of a gin and mill outfit to plaintiff’s assignors, in which defendants agreed that, while the assignors should operate the gin and mill in the community, defendants would not directly or indirectly engage in, or be interested in, any other gin or mill in such community, a verdict for nominal damages was sufficient to indicate that the defendants had broken the contract, and entitled plaintiff to an injunction restraining' further breach.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 121-123.]
    2. Contracts <&wkey;312(4) — Construction — Covenant Not to Engage in Particular Business.
    The removal to another county of most of the machinery purchased by plaintiff’s assignor from defendants and the substitution by them of other machinery would not authorize the defendants to re-engage in the gin business in such community, and to so engage while the plaintiff still kept the field was an undoubted breach of contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279%.]
    3. Assignments <&wkey;19 — Contracts Not to Engage in Particular Business.
    A contract for the sale of a gin and mill outfit by the defendants to a partnership, which contained a covenant that while the partnership operated the gin and mill in the community defendants would not engage in such business, was a chose in action, which, when assigned by the partnership to the corporation which succeeded it, carried with it all rights existing under it by reason of its covenants and agreements.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 28-31.]
    4. Contracts <&wkey;117(2) — Monopolies <&wkey;12 (4) — Restraint oe Trade — Contract Not to Engage in Particular Business.
    The contract was not in restraint of trade at common law, or in violation of the AntiTrust Act of the state (Acts 28th Leg. c. 94).
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 555, 556, 568; Monopolies, Cent. Dig. § 10.]
    5. Injunction <&wkey;113 — Defenses—Laches.
    The failure for more than three years after the contract was broken to ask for equitable relief by injunction would not constitute such laches as would bar the right thereto.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 198-201.]
    Certified. Question from Court of Civil Appeals of Fifth. Supreme Judicial District.
    Action by the Malakoff Gin Company against C. A. Riddlesperger and others. From a judgment for plaintiff for nominal damages, but denying it injunctive relief prayed for, it appealed to the Court of Civil Appeals, which certified a question to the Supreme Court.
    Question answered.
    See, also, 133 S. W. 519.
    Richardson, Watkins & Richardson, of Athens, for appellant. E. P. Miller and Faulk & Faulk, all of Athens, for appellees.
   XANTIS, J.

The questions of law involved herein arise upon certified questions presented by the Fifth Court of Civil Appeals. The very clear statement of the Court of Civil Appeals, and the questions propounded, are as follows, to wit:

“Statement.
“On July 9, 1907, the appellant was a co-partnership composed of H. L. Flagg, J. W. Bartlett, and T. A. Bartlett, and on said date the appellees, C. A. Riddlesperger and J. S. Rid-dlesperger, sold and delivered to said copart-nership their ginhouse, cotton gin, and gristmill, situated in or near the town of Malakoff, Henderson county, Tex., together with the machinery used in the operation of said gin and mill, with the right to maintain and operate the same on appellees’ land for the period of one year. The sale and purchase of the property mentioned is evidenced by the following instrument in writing:
“ ‘The State of Texas, County of Henderson:
“ ‘Know all men by these presents, we, C. A. Riddlesperger and S. J. Riddlesperger, of the aforesaid state and county for and in consideration of the sum of four thousand dollars-cash in hand paid the receipt of which is hereby acknowledged, have bargained, sold, and delivere'd, and by these presents do bargain, sell, and deliver, to the Malakoff Gin Company, a copart-nership composed of H. L. Flagg, J. W. Bartlett, T. A. Bartlett, and [all] of said state and county, our ginhouse and machinery, consisting of a complete gin and mill outfit, together with the' building in which same is situated, and all appurtenances thereto, now situated on our land in Malakoff, Tex., and we hereby grant unto said Malakoff Gin Company the right to operate said gin and mill on our land for the period of 12 months from thiis date, at which time said gin company agrees to remove said plant from our said land; and it is further agreed that they may remove any other machinery or improvements placed thereon by them prior to that time. To have and to hold unto said Malakoff Gin Company, its heirs, successor's, and assigns forever, and as a further inducement to said Gin Company we and each of us do hereby covenant and agree with said Gin Company that during the time that they operate said gin or mill in the community in which Malakoff is situated that we will not directly or indirectly engage in or be interested in any other gin or mill in said community. Witness our hands at Malakoff, Tex., this the 9th of July, 1907.
“ ‘[Signed] C. A. Riddlesperger
“ ‘S. J. Riddlesperger.’
“In March, 1908, the copartnership, Malakoff Gin Company, by that name, was duly incorporated under the laws of Texas for 50 years, with capital stock of $7,500, H. L. Flagg and T. A. Bartlett, who were members of the copartnership firm of Malakoff Gin Company, and J. L. Gilmore, who had not been a member of the said firm, becoming the sole stockholder's thereof. On the 15 th day of March, 1908, by written transfer duly executed, the Malakoff Gin Company, corporation, became the owner of the entire property bought by the Malakoff Gin Company on the 9th day of July, 1907, from appel-lees, ‘together with all the rights, warranties, agreements, and covenants given’ by them to Malakoff Gin Company, as a copartnership. The corporation became, by the said written transfer of date March 15, 1908, the owner also of what was known as the Johnson gin and mill. The Malakoff.Gin Company as a copartnership was engaged in the gin and mill business and the purposes for which it was incorporated are: ‘The construction or purchase and maintenance of gins, wharves, and warehouses for the storage of cotton or cotton seed and the purchase and sale of cotton, cotton seed or cotton seed products.’
“The Riddlesperger gin, mill, and machinery was operated about one year on the Riddlesper-ger land and then moved off by appellant. The ginhouse and gristmill were moved near the railroad in the town of Malakoff, and the cotton gin and practically all of the machinery including the boiler and engine, used in running it, were moved to Ellis county, Tex., and put up and run there by appellant. Some of the attachments, however, to the gin which was moved to Ellis county, such as belting, piping, and pulleys, were kept at Malakoff, and the Johnson gin and machinery were installed there in the house bought from the Riddlespergers, and this gin,.as well as the Riddlesperger gristmill, was operated at Malakoff by appellant as the gin and mill had been theretofore. About two months after appellant had moved the Riddlesperger gin and machinery to Ellis county, appellees put up a gin on the old site of the gin and mill which they had sold to the Malakoff Gin Company, when it was a copartnership, and began to gin cotton, and have since that time continued to operate said gin for that purpose. Upon the theory and contention that the appellees had breached their contract not to engage in or be interested in any gin or mill in the Malakoff community during the time that the appellant should operate the gin or mill bought from the appellees, appellant, on the 8th day of January, 1909, brought suit for damages in the sum of $3,500, but did not pray for an injunction. After the institution of the suit, and on March 2 and September 8, 1909, respectively, appellant filed amended petitions, praying for damages in the sum of $3,500, but did not'ask for an injunction restraining appellees from running their gin. In this attitude of the case it was tried; the trial, under the court’s construction of the contract, resulting in an instructed verdict for the appellees. Prom the judgment entered upon such verdict appellant appealed, and this court reversed said judgment and remanded the'case for a new trial. 133 S. W. 519.
“After the case was remanded, and on February 6, 1912, appellant amended its petition, alleging its damages then to be $6,000, and for the first time prayed for an injunction enjoining appellees from operating their gin in the Mala-koff community. When the suit was first filed, the appellees’ gin plant was worth $2,250, and when the injunction was prayed for was, by reason of improvements and additions made by appellees, worth $5,000. It is charged in appellant’s petition that the Riddlespergers put up both a gin and mill, but there is no proof in the record that they put up a mill. About the time the Riddlespergers began putting in their gin, Mr. T. A. Bartlett, one of the stockholders of the Malakoff Gin Company, discussed the matter with one of the Riddlespergers as to whether or not the Riddlespergers had the right to put up another gin; Bartlett contending and asserting that they had not such right under the terms of their contract, and Riddlespergor contending and asserting that they did. The case, upon the amended petition filed February 6, 1912, was tried during the February term, 1912, of the court, the court chax-ging the jury upon the measure of damages as follows: ‘If you find for the plaintiff, under the foregoing instructions, you will assess its damages at such sum as will be the actual damages sustained by the plaintiff as the direct consequence of the breach, if any, of the said agreement; and the measure of damage would be the loss of profits, if any, to the plaintiff’s business at Malakoff up to February 6, 1912, which you may find from the evidence was the direct result of defendants engaging in said gin business in said community; and if plaintiff has suffered no such loss of profits, you will not find any actual damages against defendants. If you find defendants have violated their agreement, but do not find that plaintiff has sustained a loss of profits, you will at any rate find for the plaintiff nominal damages, which is meant some trifling sum which is allowed for the breach of a contract where no serious loss is proven to have been sustained.’ The trial resulted in a verdict in favor of appellant for the stun of $10, the verdict reading as follows : ‘We, the jury, find for plaintiff in the sum’ of ten dollars for breach of contract. Joe Young, Foreman.’
“The undisputed evidence, if the appellant was entitled to recover any sum, would have warranted a verdict in appellant’s favor for a very much larger amount than that awarded by the verdict rendered. After this verdict was returned into court, appellant filed a motion, among other things, alleging that the jury by their verdict found that the Riddlespergers had breached their contract not to ‘engage in or be interested in any other gin or mill’ in the Malakoff community during the time it should operate the gin or mill purchased from them and prayed that the court make and enter an order enjoining appellees from ‘further engaging in or being interested in the running or operation of a gin or mill in said Malakoff community.’ The making of such an order was resisted by appellees, upon the grounds, among others, in substance: (1)That appellant, in filing its suit for damages only, and in failing to ask for an injunction for the period of three years thereafter, during which time appellees had by improvements and the addition of other and new machinery, increased the value of their gin plant from $2,-250 to $5,000, appellant was estopped from obtaining injunctive relief; (2) because the granting of the injunction under the circumstances shown would inflict a greater injury on appel-lees than the refusal of it would benefit the appellant and would be inequitable and contrary to the real justice of the. case; (3) because the contract set up by appellant only obligated appellees not to put up another gin or mill in the Malakoff community, so, long as the appellant operated the gin or mill purchased from appellees in that community, and when appellant moved the Riddlesperger gin and machinery to Ellis county appellees were no longer bound by said contract; (4) because the provision of the contract obligating appellees not to engage in the gin or mill business in the Mala-koff community applied only to the Malakoff Gin Company as a copartnership, and not to their successor or assign, the Malakoff Gin Company, corporation; (5) that the proof failed to show a violation on their part of the contract entered into between them and the Malakoff Gin Company, as a copartnership. Appellant’s motion praying for injunction was by the court overruled, and judgment entered upon the verdict of the jury simply that appellant recover of appellees the sum of $10 and all costs of suit. A formal judgment was also entered denying appellant the injunctive relief prayed for, and from this judgment alone appellant appealed, basing all of its assignments of error upon the action of the court in refusing the injunction.
“Regarding the issue of law arising upon the appeal of importance, and being in doubt as to how it should be decided, we deem it advisable to certify the question set out below to. the honorable Supreme Court of Texas for adjudication:
“Question. Under the foregoing facts and verdict of the jury, was the appellant entitled to the injunction prayed for, and did the trial court err in refusing to grant it?”

We think that under the facts recited, and the verdict of the jury which was rendered, the appellant was entitled to the injunction prayed for, and that the trial court erred in refusing to grant it. While the verdict of the jury was for nominal damages only, it was sufficient to indicate that the appellees had breached the contract, and in fact the verdict expressly so stated.

The clause in the contract which provides that, during the time the Malakoff Gin Company operates “said gin or mill in the community in which Malakoff is situated,” they, the Riddlespergers, would not, directly or indirectly, engage in or be interested in any other gin or mill in said community, clearly means that the Riddlespergers will not so engage while the Malakoff Gin Company is engaged in the business of operating a gin or mill in said community, and not, as contended by the appellees, that the Riddlespergers will so refrain only during the time the Malakoff Gin Company should operate the mill and gin with the same machinery which they purchased from the appellees. The removal of most all the machinery purchased by the appellant from the appellees to Ellis county, and the substitution by them of other machinery therefor, would not authorize appellees to re-engage in the gin business in said community, and to so engage while the Malakoff Gin Company still occupied the field was an undoubted breach of the contract.

The insistence of the appellees that the contract did not bind them to the observance of its provisions when the Malakoff Gin Company, a copartnership, transferred ttie gin and mill purchased by them from appellees to its successors, the Malakoff Gin Company, corporation, is without any substantial merit. The members of the co-partnership, with the exception of one, each became stockholders in the corporation, and only one stockholder was added who was not a member of the copartnership prior to the organization of the corporation. The copartnership, when transferring the gin and the null to the corporation, also assigned to it the said contract, with all its rights existing under it by reason of its covenants and agreements. We are of opinion that there is no good reason for holding that such a chose in action could not be sold and assigned in this way, and that no sound reason exists for holding that the appellees were thereby absolved from complying with the covenants and agreements which it contained. No additional burden or hazards were thereby cast upon them, and their duties remained the same as they were before such assignment was made. It must be immaterial to them whether they are required by the corporation to keep the contract, or whether they are so required by the co-partnership.

We are of opinion that, as limited by the facts stated, the contract was not in restraint of trade at common law, or in violation of the anti-trust act of the state (Laws 1903, p. 119). Crump v. Ligon, 37 Tex. Civ. App. 172, 84 S. W. 250; Comer v. Burton-Lingo Co., 24 Tex. Civ. App. 251, 58 S. W. 970; Wolff v. Hirschfeld, 23 Tex. Civ. App. 670, 57 S. W. 572; Insurance Company v. The State, 86 Tex. 263, 24 S. W. 397, 22 L. R. A. 483; Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801; Gates v. Hooper, 90 Tex. 564, 39 S. W. 1079

The failure of appellant for more than three years after the contract was breached to ask for equitable relief by injunction would not constitute such laches as would bar the right to injunction. Watson v. Texas & Pacific Railway Company (Civ. App.) 73 S. W. 830 ; Heidenheimer v. Loring, 6 Tex. Civ. App. 560, 26 S. W. 99; Cetti v. Dunman, 26 Tex. Civ. App. 433, 64 S. W. 787; McLane v. Bank (Civ. App.) 68 S. W. 63; San Antonio National Bank v. McLane, 96 Tex. 48, 70 S. W. 201.

We think the appellant is entitled to the relief by the injunction as prayed for, to prevent a future breach of the contract.
      iissFor othe'r cases see same topic and KET-NUMBBR in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: PHILLIPS, O. J.

license: Public Domain

text:
    TEXAS BANK & TRUST CO. OF BEAUMONT v. SMITH et al.
    (No. 2467.)
    (Supreme Court of Texas.
    Feb. 28, 1917.)
    1. Waters and Water Courses <@==>258 — Irrigation — Lien—Lease—“Owner.”
    The term “owner,” as generally used, signifies one who has the legal rightful title, but as used in Acts 24th Leg. c. 21, § 18 (Sayles’ Ann. Civ. St. 1897,. art. 3130; Rev. St. 1911, art. 5009), declaring a paramount lien for water furnished lands for irrigation, the term includes both the owner of the title and tenants in possession.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    2. Waters and Water Courses <@=^258 — Irrigation — Lease by Tenant.
    Under .Acts 24th Leg. c. 21, § 11 (Sayles’ Ann. Civ. St. 1897, art. 3125), a tenant is authorized to lease or rent water for the purpose of irrigating such lands and to bind himself for the payment of rental therefor.
    3. Chattel Mortgages <@=>138(3) — Landlord and Tenant <@=>248(1) — Waters and Water Courses <@=>258 — Irrigation—Lease-Liens — Priorities.
    The lien provided by Acts 24th Leg. c. 21, § 18 (Sayles’ Ann. Civ. St. 1897, art. 3130': Rev. St. 1911, art. 5009), for water furnished land for irrigation purposes, is enforceable against crops of tenant for water furnished under such tenant’s contract, and is superior to lien of landlord for unpaid rent and crop lien under mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 230; Landlord and Tenant, Cent. Dig. §§ 1003, 1006-1008, 1017.]
    4. Liens <@=>12 — Priority—Statutes.
    Ordinarily a statutory lien will not be given priority over existing recorded liens, but Legislature has undoubted power to give statutory lien priority over all other liens, where its object is to secure charges necessary to preservation of property.
    [Ed. Note. — For other cases, see Liens, Cent. Dig. § 18.]
    Certified Question'from Court of Civil Appeals of First Supreme Judicial District.
    Proceedings for foreclosure of liens against George W. Smith and others, in which the Texas Bank & Trust Company intervened. From an adverse judgment intervener appealed, and questions were certified by Court of Appeals to Supreme Court.
    Questions answered.
    Carlton, Townes & Townes, R. E. Hard-wicke, and Townes, Foster & Hardwicke, all of Beaumont, for appellant. Lipscomb & Williams and Geo. D. Anderson, all of Beaumont, for appellees.
   PHILLIPS, O. J.

The case presents a controversy between an irrigation company, certain landlords, and a mortgagee with respect to the existence and priority of the lien claimed by the irrigation company.

In the year 1909 one George W. Smith was in possession of certain lands leased by him from the owners, using the same for a rice farm. To successfully grow rice on the land irrigation was necessary, and the only water accessible for the purpose was that from the canals of the irrigation company. In July of 1909 Smith entered into a contract with the irrigation company, by the terms of which water for irrigation purposes was to be furnished him by the company for an agreed price. Prior to the mailing of this contract Smith had executed a mortgage to a banking company to secure the payment of money loaned him to be used in growing the rice crop. This mortgage was duly registered before the irrigation contract was made. The owners of the land knew at the time their leases were made to Smith that his purpose was to cultivate the land in rice; as did also the banking company at the time it took its mortgage.

Default having been made by Smith in the payment of rent due by him for some of the land, the owner of such land, — one of the landlords, filed suit for the rent due and for foreclosure of the landlord’s lien upon the crop of rice thereon grown. Afterwards the irrigation company filed a separate suit seeking the recovery of the amount due by Smith under the water contract and a foreclosure of a lien upon the entire crop. The two suits were consolidated. The banking company intervened, setting up its mortgage lien, as did also the other landlords asserting their landlord’s liens.

The questions propounded by the honorable Court of Civil Appeals are as follows:

“1. Smith being a lessee, and not the owner of the land, and the contract for water having been made with him and not with the landowners, did the Irrigating Company, by its contract made with Smith and by furnishing water for the irrigation of the crops in pursuance thereof, acquire a lien on the crops so irrigated by virtue of the provisions of Art. 31301 of Saj’les’ CM Statutes?
“2. If the foregoing question is answered in the afiirmative, then we ask, was such lien superior to the mortgage lien of the Texas Bank and Trust Company, and to the liens of the landowners for the rents of their lands?”

The statute in force in 1909 with respect to the lien of an irrigation company upon crops grown on land for the irrigation of which it had furnished water, was in these words:

“Every person, corporation or association of persons which has heretofore constructed or which may hereafter construct any ditch, canal, dam, lake or reservoir for the purpose of irrigation, and who shall lease or rent the water from said ditch, canal, dam, lake or reservoir to any person or association of persons or corporation owning any lands subject to irrigation from any such ditch, cañal, lake, dam or reservoir, such person, corporation or association of persons owning such ditch, canal, lake, dam or reservoir shall have a preference lien, superior to every other lien, upon the crop or crops raised upon the land thus irrigated under such lease or contract.” Act of 1895, Sec. 18 (General Laws of 1895, page 25); Art. 3130, Sayles’ Civil Statutes of 1897; Art. 5009, Revised Statutes 1911.

The term “owner,” as generally used, signifies one who has the legal or rightful title. But this is not always the sense in which it is employed. It is not rigid in meaning, and in statutes is not infrequently used to denote one holding for himself and in his own right but having less than an absolute title. Its meaning depends in a great measure upon the context and the subject matter to which it is applied. Thus in statutes defining duties of railroads and denouncing a penalty against, the corporation “owning the railroads,” or exacting certain requirements of the companies “owning the tracks,” the corporation in control of and operating the railroad, though simply a lessee of the property, is an “owner” within the meaning of such statutes. State v. St. Joseph, St. L. & S. E. Ry. Co., 46 Mo. App. 466; B. & O. R. R. Co. v. Walker, 45 Ohio St. Rep. 577, 16 N. E. 475; Chicago, R. I. & P. Ry. Co. v. State, 84 Ark. 409, 106 S. W. 199. In an action to recover the possession of real estate, to maintain which only a possessory title was necessary, a tenant for years properly alleged himself to be “the owner” of the real estate. Parker v. Railroad Company, 79 Minn. 372, 82 N. W. 673. Other cases illustrating like uses of the term are Schott v. Harvey, 105 Pa. 222, 51 Am. Rep. 201; Camp v. Rogers, 44 Conn. 291; Peterson v. Johnson, 132 Wis. 280, 111 N. W. 659. The last case concerned a statute imposing the duty on “the respective occupants of adjoining lands, used and occupied for farming purposes,” of maintaining partition fences, unless they should • otherwise mutually agree. It then provided:

“And owners of lands who do not maintain and keep in repair lawful partition fences shall not be entitled to recover any damages whatever for trespasses by the animals of owners of any adjoining lands with whom partition fences might have been maintained if such lands had been inclosed.”

The word “owners” as used in the quoted part of the statute was held to include persons designated by the word “occupants” in the preceding part.

That the term may signify one whom the owner of the title has clothed with the possession and control is recognized by this court. In the opinion of Chief Justice Stayton in Turner v. Cross and Eddy, Receivers, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262, in speaking of the terms “owner” and “proprietor,” this is said:

“Both words are doubtless often used to express right to property in a thing loss than absolute or exclusive right, but when this occurs it will ordinarily appear from the context, and in all such cases the person holds for himself and in his own right; and as stated in brief of counsel, ‘the right of such a person to the possession and control springs not from an act to which the concurrence or consent of the owner is not required, as in the appointment of a receiver, but from the direct act of the owner or proprietor, who thereby clothes the person placed in the possession and control with the right to operate the same for his own benefit.”

The sense in which the term “owning” was used' in that part of the statute under consideration which requires that the lease of water be to one “owning” the lands to be irrigated, in order for the irrigation company to have the statutory lien upon the crops thereon grown, cannot be accurately determined without consulting the context of the act of which the statute was a part. As already noted, the statute was Section 18 of the Act of 1895. Section 11 of. the Act as amended at the same session (General Laws of 1895, page 23; Art. 3125, Sayles’ Civil Statutes of 1897), throws a distinct light upon 'the question, since it is the part of the act which deals with the duties of irrigation companies chartered under it or the general laws, defines the classes of water rights which may be sold or leased, and designates those entitled to obtain them.

After authorizing the formation of corporations with the powers conferred by the act, this section declares:

“All such corporations shall have full power and authority to make contracts for the sale of permanent water rights, and to have the same secured by liens on the laud or otherwise, and to lease, rent or otherwise dispose of the water controlled by such corporation for such time as may be agreed.upon, and in addition to the lien on the crops hereinafter provided for, the lease or rental contract may be secured by a lien on the land or otherwise.”

This is a general provision designating the kinds of water rights which irrigation companies may grant to consumers. They are of two distinct classes, permanent water rights, and those of a limited duration. This distinction is important, and materially aids in the interpretation of Section 18. Permanent water rights, this provision contemplates, are to be sold. Other water rignts are to be leased or rented. The former are to be evidenced by contracts of sale; the latter by contracts of lease. With whom are such respective classes of contracts to be entered into, and how are they to be secured? Contracts for the sale of permanent water rights are to -be made, of course, with the owner of the title to the land. As to. their security, it is declared that they may be secured by liens on the land, which could be validly given only by an owner of the title, or by means of other security. As to lease contracts, no limitation, whatever, is imposed in respect to the classes of persons witn whom they may be made. The authority to make such contracts is conferred in the broadest terms. There is no hint in the provision of a power to make them with only the owner of the title to the land, to the exclusion of a tenant in rightful control and possession who might need the water for his use. Its language, as well as the spirit of the act, repudiates the view that a tenant in possession is to be dependen}; upon the owner of the title for his water supply, wholly deprived pi the right to contract for it, and altogether excluded from the benefits of the act unless the owner of the title sees fit to lease the water necessary for his use. The only reasonable construction of this provision is that it authorizes the making of lease contracts with either a tenant in possession or the owner of the title.

What security does the act provide for this class of contracts? The answer to.this inquiry is to be found both in the provision above quoted and in Section 18, constituting the statute under consideration, since both relate to this same subject and by direct reference one is substantially made a part of the other. The above provision recognizes and declares that such, contracts are to be secured, primarily, by the statutory lien upon the crops conferred by Section 18, though providing that they may be additionally secured by a lien on the land or otherwise. Its language is that they, “in addition to the lien on the crops hereinafter provided for — (the lien conferred by Section IS), may be secured by a lien on the land, etc.” The express lien upon the land for the security of such contracts could be validly given only by the owner of the title. But was the statutory lien upon the crops when grown by a tenant' in possession to be dependent in all cases upon the existence of a water lease contract with the owner of the title? To so assume is either to introduce a conflict between Section 18 and the provision above quoted, or to impose a limitation upon the latter not expressed, and which the generality of its terms excludes. The construction to be given the provision quoted in respect to the persons with whom the making of lease contracts is authorized, is, as already stated, that they may be made with either a tenant in possession, or the owner of the title. It expressly declares that the security for such contracts shall be, primarily, the statutory lien upon the crops conferred by Section 18. Under this provision, therefore, such contracts would stand so secured, whether entered into either by a tenant in possession or the owner of the title. To construe Section 18 as meaning that they are to be secured by the statutory lien only when made with the owner of the title would, accordingly, contradict the plain intendment of the above provision. In the construction of the two provisions they are to be harmonized, if their terms reasonably admit of it, so that both may be given consistent effect. This may be done only by either assuming that in authorizing the making of lease contracts the Legislature intended they should be made with only the owner of the title, thus depriving a tenant in possession of all right in his own behalf to contract for and obtain water for his use, and placing his right to water at the entire disposal of his landlord — a construction not only opposed by express provisions of the act, as will be later shown, but which would subject the tenant to an injustice that it is not reasonable to believe the Legislature intended, or construing the word “owning,” used in Section 18, in its broader sense and as therefore including a tenant in rightful control and possession of the land. The term in legal effect admits of that construction, and as used in this statute such meaning should be given it.

It is difficult to believe that since the Legislature in conferring the authority for the making of lease contracts did not limit its exercise to only the owner of the title, its purpose was nevertheless to confine the benefits of the statutory lien provided for their security to only such as an owner of the title might make. It is more reasonable to conclude that the intention was that the lien thus furnished for this class of contracts should apply to all authorized contracts of the class.

That the act, in terms, authorizes the making of such contracts directly with the owner of only a possessory title to the land, as distinguished from an owner of the absolute title, and declares it to be the duty of irrigation companies to furnish such an owner water in his own right, is shown by this further provision of Amended Section 11:

“All persons who own or hold a possessory right or title to land adjoining or contiguous to any canal, ditch, flume or lateral constructed and maintained under the provisions of this chapter, and who shall have secured a right to the use of water in said canal, ditch, flume, lateral, reservoir, dam or lake, shall be entitled to be supplied from such canal, ditch, flume, lateral, dam or lake with water for irrigation of such land, and for mining, milling, and stock-raising in accordance with the terms of his or their contract.”

The declaration that the owners of a pos-sessory title to land adjoining any canal, etc., who shall have secured the right to the use of water in the canal, shall be entitled to be supplied with water “in accordance with the terms of his or their contract” could reasonably contemplate nothing less than their right to make such contracts for themselves.

It thus also appears that in this part of the act the holder of only a possessory right to the land is recognized as the “owner” of a .species of title. This serves to explain the meaning of the term “owning” in Section 18. It is not to be assumed that the term was used in the latter section in a sense wholly different from that in which it was employed in another section of the identical act with reference to the same subject matter. The more reasonable view, — and such is a primary rule of construction, is that it was used in a consistent sense in both sections.

The second question is settled by the statute. It declares that the lien it provides shall he “superior to every other lien.” All liens for which the law then made provision must have been taken into account in the enactment of the statute. Being the later act, this declaration could only mean that all such statutory liens should be subordinate to the lien which it was the purpose of the act to confer, whether in force or not when the latter attached. As to the landlord’s lien, this is necessarily true as applied to a water lease contract made with a tenant. In no case could such a contract be well made with the tenant until he had acquired his right to the land by lease from its owner, which, as a rule, marks also the time of the creation of the rental indebtedness and, accordingly, the inception of the landlord’s lien. To hold that the existence of the landlord’s lien renders inferior the irrigation company’s lien, would make meaningless the declaration of the statute that the latter shall be “superior to every other lien.”

As applied to contract liens, this is also true. Such liens subsequently created would, without this declaration, be subordinate because inferior in point of time. With respect to contract liens, therefore, this declaration is without force unless it has reference to those in existence when the lien of the statute accrues.

Ordinarily, a statutory lien will not be given precedence over an existing and duly registered lien. But there is no question as to the power of a legislature to give a statutory lien such priority where its object is to secure a charge necessary for the preservation of the property. Jones on Chattel Mortgages, Section 474.

An instance of liens having this priority,, independently of any statute provision, is the maritime lien upon vessels for repairs necessary to maintain their seaworthiness. The expenditure for such repairs inures to the benefit of the mortgagee, and is as much to his advantage as to the mortgagor. For this reason the mortgage lien, though prior in time, is made subordinate. Scott v. Delahunt, 65 N. Y. 128; Provost v. Wilcox, 17 Ohio, 359; Hammond v. Danielson, 126 Mass. 294.

For a stronger reason should the lien conferred by the statute under consideration be held superior to a prior mortgage lien. It is to secure indebtedness for the water which helps to create the property upon which the mortgage lien is given, without which the property might not have existence. The theory of the statute is that holders of prior liens upon the crops to be grown on the irrigated land are not prejudiced, but aided by the furnishing of the water necessary to their growth. It is for this reason, plainly, that the lien to secure the water charges is given its superior rank.

Cases holding that a lien upon property subsequently moved on rented premises is superior to the landlord’s lien, furnish no analogy, and do not control the question. In such instances the tenant’s indebtedness for rent due the landlord has no possible relation to the preservation of the property, and consequently there copld be no reason for holding that it was the purpose of the Legislature to displace the existing lien.

Nor does the decision in Blackford v. Ryan (Civ. App.) 61 S. W. 161, by the Court of Civil Appeals for the Fifth District have any bearing upon the question. It was decided there that the lien given by Article 3319, Revised Statutes of 1895, to a livery stable keeper for the care of a horse was subordinate to an existing mortgage lien, duly registered at the time the horse was placed in the stable. That article gave merely “a special” lien upon animals fed and cared for in such stables. It contained no declaration that it should be “superior to every other lien.” In addition, it was provided by Article 3326 of the same title: •

“Nothing in this title shall be construed or considered as in any manner impairing_ or affecting the right of parties to create liens 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.”

The latter article would alone serve to maintain the priority of the existing mortgage in such a case. Masterson v. Pelz (Civ. App.) 86 S. W. 56.

Both questions are answered in the affirmative.
      <8=>For other eases see same topic and KEY-NUMBER lu all Key-Numbered Digests and Indexes


author: YANTIS, J. HAWKINS, J.

text:
    PRUETT v. ROBISON, General Land Office Com’r et al.
    (No. 2737.)
    (Supreme Court of Texas.
    Feb. 28, 1917.
    Dissenting Opinion March 1, 1917.)
    1. Boundaries —Public Lands — Grants by State — Description—“Southeast One-PIalf” — “Hale.”
    The term “southeast one-half,” in a lease of one-half of a school section, the easterly and westerly lines of which run north 27° west, and northerly and southerly lines, south 63° west, means that part of section south of a line bisecting the easterly and westerly lines, and not the triangular “half” east of a line extending from the northeast to southwest corner.
    [Ed. Note. — For other cases, see Boundaries, Gent. Dig. §§ 66-76.
    For other definitions, see Words and Phrases, First and Second Series, “Half.”]
    2. Public Lands <@=>173(24) — School Lands —Release..
    Under Const, art. 7, § 4, providing that school land shall be sold on such terms as required by law, and Rev. St. 1911, arts. 5453, 5454, providing that after expiration of a lease in the absolute lease district, lands shall not be re-leased for 90 days, a lease of school lands before expiration of a prior lease is void when made.
    [Ed. Note. — For other cases, see Public Lands, Gent. Dig. § 551.]
    3. Public Lands @==>173(24) — Action to Enforce Rights to Lease — Limitations.
    Acts 29th Leg. c. 29, providing that after one year a lease will bo conclusively presumed to be valid against every one but state, is not merely a statute of limitations for benefit of lessee, but inures to benefit of state for protection of its own rights, and under it a void lease of school lands, which has not been questioned within one year, becomes valid against every one but the state.
    [Ed. Note. — For other cases, see Public Lands, Gent. Dig. § 551.]
    Hawkins, J., dissenting.
    Original mandamus proceedings by Ben Pruett against J. T. Robison, Commissioner of the General Land Office, and others.
    Mandamus refused.
    J. A. Gillett, of El Paso, for plaintiff. B'. F. Looney, Atty. Gen., and G. B. Smedley Asst. Atty. Gen., for defendants.
   YANTIS, J.

This mandamus proceeding was begun here as an original suit to require the Commissioner of the General Land Office, J. T. Robison, to cancel a sale made by the Land Commissioner on October 24, 1913, to E. C. Williams, respondent, of the E. % and the S. W. ]4 of school land section No. 218 in block 9 of the Galveston, Harrisburg & San Antonio Railway Company lands, situated in Jeff Davis county, Tex., and to reinstate a lease covering the same land in favor of Mitchell and Pruett, which was made February 25, 1913, with the Land Commissioner for a period of five years thereafter. Subsequently the relator, Ben Pruett, by purchase from Mitchell of his interest in said lease, became the sole owner thereof, and he prosecutes this suit in his own name.

The lease was made to Mitchell and Pruett about eight months prior to the date of the sale of the same land to E. C. Williams, respondent, the Land Commissioner at the same time canceling said Mitchell and Pruett lease. The action on the part of the Land Commissioner in canceling the Mitchell and Pruett lease, and in selling to the respondent Williams, was taken on the advice of the Attorney General’s Department.

The lines of section No. 218, in question, do no run north, east, south, and west, but run N. 27° W., and.S. 63° W. The contention of the relator, according to his petition, appears to be that by the term 8. E. % of the section leased to Buttrill, was meant that portion of the section in the shape of a triangle, lying between a line extending from the northeast comer to the southwest corner of the section. We think this contention cannot be sustained, and that the land indicated in the description, S. E. V2, as described in the Buttrill lease, was a rectangle lying between a line extending from the center of the northeast boundary to the center of the southwest boundary. We think this is the common, ordinary acceptation of the term “southeast one-half of section 218,” there being no words employed to indicate that a triangle was intended. In the sale of the public school lands, such as these, a description by the term section, quarter section, or half section is commonly understood to mean such quantity in a rectangular shape, and not a triangle. There being nothing to indicate that any other meaning was intended, we think it should be accorded that construction here.

The contention of the Attorney General, on behalf of the Land Commissioner, Robison, is that said lease to Mitchell and Pruett was void .when made, on the ground that it was made before the expiration of a lease to John Stillwell of the S. W. Vé, of .said section made on April 23, 1908, which did not ■expire until 1913, and that to give effect to the Mitchell and Pruett lease would have the effect of keeping the land off the market, by not allowing a reasonable time between the expiration of the Stillwell lease and the execution of the Mitchell and Pruett lease for purchasers to buy; the date of the latter lease being in fact prior to tbe expiration of the Stillwell lease. At the time the lease was made to Mitchell and Pruett, the law prohibited the sale of fractional portions of a section, and it is contended that until Stillwell’s lease to said S. W. % expired, a sale of any of the section could not be made, and that to give the Mitchell and Pruett lease effect would result in prohibiting the sale of the land until 1918, when it would expire. It is alleged and shown that the land was in demand for purchase at the time the Mitchell and Pruett lease was executed.

Article 7, § 4, of the Constitution provides that school land “shall be sold under such regulations, at such times, and on such terms as may be prescribed by law,” and this provision has been recognized by this court as requiring the sale of school land, and prohibiting it from being kept oft the market for an unreasonable length of time. Ketner v. Rogan, 95 Tex. 559, 68 S. W. 774; Reed v. Rogan, 94 Tex. 182, 59 S. W. 255; Smisson v. State, 71 Tex. 222, 9 S. W. 112. Article 5453, Revised Statutes 1911, being a part of the act of 1901, provides as follows:

“On the expiration of any lease in the absolute lease district, the lands shall remain subject to sale for a period of ninety days, and, if it has been previously classified and valued by the Commissioner of the General Land Office, and notice given to the county clerk, it shall not be necessary to give the clerk any further notice in order to put the land on the market, but it shall be considered as already on the market and subject to sale. During said period of ninety days, the Commissioner of the General Land Office shall suspend action upon any application to lease said land, and shall award it .upon any legal application to purchase made during said time.”

It is provided by article 5454,. Revised Statutes 1911, which is a part of the act of 1905, as follows:

“When a lease expires or is canceled for any cause, the Commissioner shall not consider an application to lease the land prior to ninety days from such expiration or cancellation, and no lease on any land shall be made if it is in demand by purchasers.”

The lease to Stillwell was made by the Land Commissioner April 23, 1908. It ran five years, and expired April 23, 1913. The state, through the Land Commissioner, continued to recognize it as valid until the lease of the same land to Mitchell and Pruett, which was made February 25, 1913, or about two months prior to the expiration of the Stillwell lease. The rights which Pruett, the owner of the Mitchell and Pruett lease, is here asserting as a basis for the mandamus sought against the Commissioner of the General Land Office are those coiiferred by the lease to him of February 25, 1913. While the Stillwell lease was void at the. time it was made, for the reason that the land was already leased to another, yet it was not open to attack by any one subsequently claiming the right to purchase or lease'the land covered by it after the expiration of. one year from the date .of its original award, and no subsequent claimant who had permitted it to stand unchallenged for such period could acquire any right antagonistic to it. Act of 1905, p. 35. It was not attacked within such period by Pruett, or any one else. It, therefore, became a valid lease in favor of Stillwell as against Mitchell and Pruett, and they consequently acquired no right to the land by virtue of the lease which was made to them February 25, 1913. It is true that Stillwell is not a party to this suit, and consequently has not himself pleaded that the Mitchell and Pruett lease is invalid, by reason of said statute of limitation, but this statute of limitation was not enacted exclusively for the benefit of purchasers of school land, but its purpose was also to give protection to the interests of the state. In the case of Erp v. Tillman, 103 Tex. 584, 131 S. W. 1057. Mr. Justice Williams declared that the act referred to was more than a statute of limitation, and its enactment was not alone for the benefit of a purchaser of school land. In the discussion of such question he said:

“It ought not to be forgotten, though it often is, that the interests of the two contestants over school land which has been sold to one of them are not the only ones involved. The state has an interest in the maintenance of sales made for the benefit of it its school fund, and it was largely to give such protection that this statute was passed. It had been common for sales which had stood for years to be treated ás naught and the relations and accounts between the state and its purchasers disturbed by other applicants showing some failure to comply with the law in the making of the sales. It was not so much to protect purchasers who had not complied with die law as it was to prevent such interferences with sales and to reserve to the state the election to abide by or repudiate them, that this statute was adopted.”

We think it is unimportant, in passing upon the question here, that Stillwell is not a party to this suit, and is therefore not pleading said statute of limitation of 1905, and that said act, as substantive law, inures to the benefit of the state in the protection of its own rights. In which view the Stillwell lease was rendered valid as against all persons, including Mitchell and Pruett, but of course not valid as against the state.

If the award to Mitchell and Pruett on February 25, 1913, may be regarded as an act of repudiation of the Stillwell lease on the part of the state, of itself terminating Stillwell’s rights and making effective the state’s power to dispose of the land, still Mitchell and Pruett acquired no rights under the award to them, for the reason that the land had not been placed on the market or offered for sale for 90 days after the expiration of the Stillwell lease, and before making the lease to Mitchell and Pruett. The statutes and authorities first cited herein are conclusive of that question.

It follows that the sale to Williams was valid, and that his right to the land should not be disturbed, and the mandamus prayed for by Pruett should be refused. Mandamus refused.

HAWKINS, J.

(dissenting). Chronologically the fact of this case are these: Section 21S in block 9, Galveston, Harrisburg & San Antonio Railway Company, lying in Jeff Davis county was public free school land. The tract is rectangular, the longer lines rurining north 27° east. On January IS, 1906, the state leased the S. E. Yz of the section to Clyde Buttrill for five years beginning October 25, 1905, which lease remained in good standing during that entire period. The section was duly classified, appraised at $2.25 per acre, and on May 19, 1906, placed on the market for sale. On January 28, 1907, the N. W. ,of the section was sold by the state to John Stillwell. It is not involved in this suit. On April 28, 1908, the S. W. Yé- of the section was leased by the state to Stillwell for five years beginning April 28, 1908, and during that entire period all rental payments thereon were duly made. Said S. W. %. was' appraised at $2.25 per acre, and advertised to come on the market on April 23, 1913, for sale. On March 18 (or 28), 1913, the S. Yz and the N. E. % of the section was leased by the state to Mitchell and Pruett for five years beginning February 26, 1913. On June 9, 1913, Williams filed his application to purchase the E. Yz of the section at $1.50 per acre, which application was rejected upon the grounds that said lease to Mitchell and Pruett was in full force and effect, and said application was at a less price than that at which the land had been áppraised and was subject to sale. On June 9, 1913, Williams filed his application to purchase the S. W. of the section at $2.25 per acre, which application was rejected upon the ground that said lease to Mitchell and Pru-ett was in full force and effect. On June 30, 1913, Williams filed his application to purchase the E. Yz and the S. W. %, of the section at $2 per acre, which application was rejected upon the ground that the land had been appraised and placed on the market at $2.25 per acre. On August 4, 1913, Williams filed his application to buy the E. Yz and the S. W. of said section at $2.25 per acre. On.October 15, 1913, said lease to Mitchell and Pruett was canceled by the Commissioner of the General Land Office. On October 24, 1914, said application of Williams, filed August 4, 1913 was accepted, and the land therein described was awarded to him, and that sale is still recognized on the books of the General Land Office as being in good standing. Mitchell assigned to Pruett all interests of the former under said lease to them, and the relator, Pruett, seeks here a writ of mandamus to compel the Commissioner to cancel said sale to Williams and to reinstate said Mitchell and Pruett lease covering the same three-quarters of that section, the same being all of the section except the N. W. thereof which, ás stated, had been sold to Stillwell.

The majority opinion says:

“It is alleged and shown that the land was in demand for purchase at the time the Mitchell and Pruett lease was executed.”

That is not what .1 understand to be the legal effect of the pleadings, and, of course, no evidence was heard in this court. Upon that point relator makes no allegation. Williams, the corespondent, does aver that both prior to and after the expiration of the Still-well lease, he (Williams) was desirous of purchasing all the unsold portion of section 218, but thought the existence of the Stillwell lease and of the Mitchell and Pruett lease prevented him from doing so, and that “he did not file an application to purchase any of said land until June 9, 1913.” The Commissioner, in his answer does, indeed, aver that:

“Before the expiration of the lease to Still-well and at the time of its expiration the unsold portion of section 218, as this respondent is informed from the facts set up in the answer of respondent Williams, was in demand by purchase.”

By no one is it alleged that any one filed, prior to said lease to Mitchell and Pruett, an application to purchase the land in controversy. Obviously, said undisclosed desire of Williams did not amount to a demand or offer to purchase the land, and the qualified answer of the Commissioner is therefore insufficient to show such demand or offer. The record is that the land is not shown to have been in demand for purchase prior to the lease to Mitchell and Pruett. Relator’s contention is that said lease to Mitchell and himself, covering the land in controversy, was valid, and, inasmuch as the rental payments thereunder have been kept up, it is still valid, and should be reinstated, and thát said cancellation thereof was unauthorized by law, and consequently the- sale of the land thereafter to Williams on his application of August 4, 1913, therefor was invalid, and should be canceled.

The contention of the commissioner is that said sale to Williams was valid, and that said lease to Mitchell and Pruett .was invalid at its inception, because, at that date, a portion of the land covered by it, namely, the S. W. of said section, had not been on the market for sale for the statutory period of 9Ü days after the expiration of said lease to Stillwell covering said southwest quarter section. The relator’s further contention is that at the inception of said lease to Mitchell and himself said southwest quarter section had been on the market for such statutory period, with no purchaser therefor, in. support of which contention he points to the fact that said lease of said S. W. % to Still-well was made subsequently to said lease to Buttrill, which covered the S. or S. E. Yz of the section, embracing the southwest quarter section covered by said lease to Stillwell, Unquestionably1, when said lease covering the S. W. % of the section was executed to Still-well, it was void because the land covered by .it was then embraced by the prior lease to Buttrill, which was in good standing. Ketner v. Rogan, 95 Tex. 559, 68 S. W. 774. The majority opinion in this case so expressly declares. See, also, Blevins v. Terrell, 96 Tex. 411, 73 S. W. 515; Cattle Co. v. Terrell, 97 Tex. 490, 80 S. W. 73. Said prior lease to Buttrill expired in October, 1910, which was more than two years before the inception of said lease to Mitchell and Pruett. The Commissioner had duly classified and appraised the entire section, and had placed it on the market for sale, and the entire unsold portion of said section, being the land here in controversy, had been on the market for sale, for greatly more than said statutory period of 90 days prior to the inception of said lease to Mitchell and Pruett. Consequently said last-mentioned lease was valid, and should be reinstated, and the subsequent sale to Williams was invalid and should be canceled: wherefore the writ of mandamus should be awarded as prayed for by relator.' Just here, and in that way, this case would end but for the Act approved March 16, 1905, chapter 29, p. 35, of the General Laws of the 29th Legislature, which is as follows:

“An act to prescribe a period of limitation within which any person claiming the right to purchase or lease public free school, state university or asylum lands heretofore sold or leased to others, shall bring his suit therefor.
“Section 1. Be it enacted by the Legislature of the state of Texas: That hereafter all persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the state university, or either of the state asylums which have been heretofore or which may be hereafter sold or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of the award of such sale or lease, if such award is made after the taking effect of this act, and not thereafter.
“Sec. 2. If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the first section of this act, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with; provided that nothing in this act shall be construed to effect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

The opposite conclusion of my Associates, to the effect that the lease to Mitchell and Pruett was invalid, and that the sale to Williams was valid, and that the writ of mandamus should therefore be refused, rests, as I understand it, upon the theory that although, as is stated in their opinion, “the Stillwell lease was void at the time it was made, for the reason that the land was already leased to another,” that lease, at least for the purposes of this action, must be considered and treated by this court as valid down 1;o the expiration of its stipulated term, because Mitchell and Pruett, and Pruett, had neglected, for one year from the execution of that lease, to attack it as invalid. The majority opinion, in discussing the effect of said act of 1905 upon said “void” Stillwell lease, does not, indeed, use the word “validate”; yet, it seems to me, the logic of that opinion leads, inevitably, to the conclusion that said act is therein treated and applied to the facts of this case as a “validating act,” rendering valid, in legal effect, throughout its entire term, a lease which “was void at the time it was made,” thereby preventing the land from coming on the market, for sale until the expiration of that term.

It must be conceded, of course, that if, after the expiration of more than one year after the execution of said Stillwell lease, and in a suit to which Stillwell was a party, any one asserting a conflicting claim of right under the subsequent Mitchell and Pruett lease had questioned the validity of said Stillwell lease, and Stillwell had pleaded and proved limitation of one year under said act of 1905 (and possibly whether he pleaded it specially or not, the evidence showing the necessary facts of the execution of such lease to him more than one year previously), the courts would be compelled to hold said Stillwell lease valid as against the complainant other than the state; and that is the most that I can find in said act of 1905. But this is not a suit of that character; the full term of said Stillwell lease has expired; that lease is not being directly attacked; neither Still-well nor any person asserting any claims under it is a party to this suit; and I am unable to comprehend how said act of 1905 is applicable, in this action, for any purpose or to any extent whatsoever, unless it be to constitute a bar to the attack which the purchaser, Williams, is here making, in substance, upon the validity of said lease to Mitchell and Pruett, the validity of which lease Williams seems not to have questioned by suit within one year after its execution. Wyert v. Terrell, 100 Tex. 409, 100 S. W. 133. This proceeding was not instituted until October 21, 1914, and the answer of Williams was not filed until January 26, 1916.

It will be observed that I have assumed, as have my Associates, that the date from which the one-year period of limitation, -under said act of 1905, should be reckoned, in a proper case, in favor of Stillwell, under said lease to him, is the date of that lease, rather than the date of the expiration of said prior lease to Buttrill. That undoubtedly is correct, if said statute is merely one of limitation. But if said statute is valid as both a statute of limitation and a statute of validation, it is impossible to apply it as a statute of limitation without applying it, at the same time, to the same facts, as a validating statute. Manifestly it was impossible to apply said statute as a validating statute to the Stillwell lease prior to the expiration of the Buttrill lease, the latter being, admittedly, a valid lease, since to do so would impair Buttrill’s vested rights, as prior lessee, in and to the southwest quarter section, which was covered hy the Stillwell lease.

Or, stating the propositions in converse order, the prior Buttrill lease, which covered the land embraced by the Stillwell lease, admittedly was valid, and its legal effect and operation during its entire term down to October 25, 1910, could not be impaired by said act of 1905, and for that reason, if for none other, the assumed validating features, if any, of that act could not be applied to the Stillwell lease during the term of the Buttrill. lease; and, since it was necessary to apply said act as a whole, or not at all, to the Still-well lease, the Act of 1905, if it is, indeed, a validating act, could not have been applied, at all, to the Stillwell lease during the life of the Buttrill lease.

It follows, I think, that even if said act of 1905 i! to be applied as a validating act, in this cause, to the Stillwell lease, the time limit of one year, in favor of the Stillwell lease, must be counted as beginning at the expiration of the Buttrill lease, thereby putting said act into full effect, as to the Stillwell lease, one year later, on October 25, 1911, and validating, as of that date, at least as to Mitchell and Pruett, the lease to Stillwell which admittedly, was “void” when executed, and which, for reasons stated, must have remained void at least down to the expiration of the Buttrill lease. This may serve to illustrate the difficulties which grow out of trying to apply said act of 1905 as a validating statute. Ordinarily validation statutes operate directly and immediately upon the subject-matter ; and the fact that the act of 1905 could not directly and immediately operate to validate the Stillwell lease tends strongly to show, either that it ought not to be held to be a validating act, or that, as such, it has no fair or proper application to that lease, or in the case at bar, unless it be against, rather than in favor of, the purchaser, Williams.

The majority opinion quotes from the opinion by Mr. Justice Williams, in Erp v. Tillman, 103 Tex. 584, 131 S. W. 1057, in support of the view that said act of 1905 is more than a statute of limitation, and was intended to give the state protection in the maintenance of sales made for the benefit of its school fund. The same reasoning as to the effect of the act applies, of course, to leases. But in that view as to the general effect of that statute I do not concur.

I cannot believe that the Legislature ever intended said act of 1905 to enable the state, through the Commissioner of the General Land Office, or otherwise, to declare valid, and to enforce, a lease which, like said Still-well lease, was made in contravention of statutory provisions, and in disregard of at least the spirit of the constitutional mandate, to the effect that the public free school lands shall be sold as early as practicable. Article 7, § 4.

Some reason might be assigned for validating a sale or lease which, at the worst, was irregular in some particular; but I can think of none for declaring valid and enforcing a lease which violates a plainly inhibitory statute and contravenes the principles announced in the above-cited cases (95 Tex. 560, 68 S. W. 774 ; 96 Tex. 411, 73 S. W. 515, and 97 Tex. 490, 80 S. W. 73). I cannot see that said act of 1905 in any. wise or to any extent affects any right of the state, or its status in relation to any sale or lease, whether same originally was valid or void.

In further support of my conclusion that said act of 1905 should not be treated as validating said Stillwell lease, even as against said subsequent lessees, Mitchell and Pruett, I offer these three reasons:

(1) There is nothing in the body of the act to suggest that it was intended as a validating act. The language is apt in a statute of limitation, but not in a validating statute. Section 1 expressly fixes a definite time for bringing suits in the classes of cases to which it is applicable; and that is all. Section 2 expressly provides that failure to bring such suit within the time stipulated therefor “shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with, thereby proscribing a rule of evidence to be observed and enforced by the courts in suits of that character; and that is all, except the proviso that the statute shall not be construed as affecting the state in any action or proceeding that may be brought by the state in respect to such lands. In both sections, the theme is suits; and the statute does not use the word “validate” or any word or set of words which appear to me to be of similar import. The Court of Civil Appeals for the First Supreme Judicial District, in an opinion by Mr. Justice Reese, treated said act of 1905 as a statute of limitation only, and not a validating act. Tillman v. Erp (Civ. App.) 121 S. W. 547. In Slaughter v. Terrell, 100 Tex. 600, 102 S. W. 399, the Supreme Court, through Judge Brown, made the following expression of its views as to the effect of said act of 1905:

“In order to ascertain what the Legislature intended by the enactment of this law, we must consider the evil that existed, and determine what the remedy was to be. Under the law as it previously existed-, purchasers of school lands were liable to have their titles attacked by third persons who desired to purchase the land, and such persons might call in question the qualification of the purchaser, as well as the performance of conditions prescribed by law, for example, that when the purchase was made the purchaser did not actually reside upon the land, or that he did not intend to make it his home, and thus, although the state recognized his right, the purchaser was constantly exposed to such attacks. This rendered such titles uncertain, and to remedy that evil the Legislature enacted the law now under consideration, which requires that any person who desires to purchase land theretofore purchased by another shall bring his suit to set aside the former purchase within 12 months of the award of it or he will be barred.”

'(2) If it be held that by the terms of said statute it is a validating act, then such validating features thereof are void, and probably the whole statute is void, because there is in the caption or title of the act no language or word which, by any stretch of the imagination, reasonably can be considered or held to embrace any such validating feature in the body of the statute. On the contrary, the caption plainly and expressly declares that the act is one “to prescribe a period of limitation” for bringing a suit of the character therein designated; and that is all. Const. Texas, art. 3, § 35.

(3) Any and all such validating features as may be thought or be held to be embraced in the body of said statute appear to be violative of and repugnant to the following italicized provisions of section 4, art. 7, of the Constitution of Texas:

“The lands herein set apart to the public free school fund shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; and the Legislature shall not have power to grant any relief to purchasers thereof."

The inhibition upon the power of the Legislature “to grant any relief” to purchasers of public free school lands seems very plain, as I read it in our organic law. Over the public policy which is wrapped up in that inhibition neither the Legislature nor the courts have any control whatever.

Applying said provision of section 4, art. 7, these things are found to be true:

(a) The land in controversy formed a part of the public free school fund.

(b) “The Stillwell lease was void at the time it was made, for the reason that the land was already leased to another.” Majority opinion.

(c) The Stillwell lease remained void, as to the state, down to the expiration of its term, unless it was validated by said act of 1905.

(d) If said Stillwell lease remained invalid throughout its entire term, it did not take or keep the land covered by it ofil the market, and therefore did not constitute any legal obstacle whatever to the valid execution of said lease to Mitchell and Pruett. Blevins v. Terrell, 96 Tex. 411, 73 S. W. 515; Cattle Co. v. Terrell, 97 Tex. 490, 80 S. W. 73; Wyerts v. Terrell, 100 Tex. 409, 100 S. W. 133.

(e) The lease to Mitchell and Pruett being valid, and covering the land in controversy, at date of the application upon which said land was awarded to Williams, as purchaser, said land was not then on the market for sale, and said award to Williams was illegal, and should be canceled.

Prom the foregoing it is evident that the practical effect of said act of 1905, as construed by my Associates and as applied by them in this case, is to extend to Williams, as purchaser of said lands, “relief” by validating, or making effective, at least from and after expiration of the Buttrill lease, the aforesaid lease to Stillwell, thereby striking down, and throwing out of the way, the intervening lease to Mitchell and Pruett, under which Relator claims. That practical result now seems to me to fall within the inhibition of said section 4, art. 7. I treat that phase of this case in a merely tentative way because I have not had opportunity for fully satisfying myself on that point; but as to the soundness of my foregoing reasons •numbered 1 and 2, respectively, I have no doubt whatever.

Rejecting then, the theory that said act of 1905 is a validating statute, and that under its operation the Stillwell lease ever constituted any legal impediment or bar to the sale by the state of the land which that lease covered, the case is brought down to the status at the date of the lease to Mitchell and Pruett: The Buttrill lease had expired more than two years previously. The term of the Stillwell lease had not expired, but that lease was void, and had been so from its inception, and consequently was not in the way of a sale of the land covered by it. All of the land had been duly classified and appraised and placed on the market, and had remained on the market for longer than the statutory period. During that period no one had applied to purchase it. Consequently the state was free to lease it to any one who might desire to lease it, and Mitchell and Pruett were correspondingly free to lease it. as was done by them. It follows that said lease was valid, and that it should be reinstated, and that on August 4, 1913, the date of the filing by Williams of his application to purchase said land was not on the market for sale, and consequently, the award to him was illegal (121 S. W. 547 and cases cited), and should be canceled.

For the accomplishment of those just and salutary results the writ of mandamus should be granted.
      <5=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    AVERY et al. v. JOHNSON et al.
    (No. 2469.)
    (Supreme Court of Texas.
    March 7, 1917.)
    1. Wills ¡@=3577— Constbuction — Property Devised — Intention of Testatob.
    A husband and wife owned 701 acres of community land. They had five children, who survived both of them. The wife devised her interest to her husband for life, with remainder to her children. Thereafter the husband devised to each child of his first wife a certain number of acres each “out of real estate owned by me,” to an illegitimate daughter 50 acres out of a certain tract, with remainder to a grandson, and to his wife “the balance of all my real estate.” Held, that, as the husband limited each devise to land which he owned, his intention was not to devise all of the 701 acres, but only his interest therein, under the rule that a court will lean as far as possible in favor of an interpretation which shows an intention of testator to convey only his own interest.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1257.]

      2. Wins <í^8Í2 — Specific Devise — General Devise — Pbiobity.
    If there is insufficient land to satisfy both general and specific devises, the former is subject to abatement for satisfaction of the latter.
    [Ed. Note. — For other cases, see «Wills, Cent. Dig. § 2108.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by Walter Avery and others against Diana Johnson and others for construction of the will of William Avery, deceased. From a decision of the Court of Civil Appeals (148 S. W. 1156), on appeal from the District Court, plaintiffs bring error.
    Reversed, and cause remanded to District Court.
    C. F. & C. C. Carsner, of Victoria, and Davidson & Bailey, of Cuero, for plaintiffs in error. Fowler & Fowler and Wayne Davis, all of Go-liad, and Proctor, Vandenberg'e, Crain & Mitchell, of Victoria, for defendants in error.-
   PHILLIPS, C. J.

The suit was for the construction of the will of William Avery and for partition.

William Avery and Jane Avery, his wife, owned as community property 701.71 acres of land. They had five children, who survived both of them. Jane Avery died in 1904. By her will she devised her community one-half interest in the land to William Avery for life, and the fee simple title in remainder to the five children of the marriage in equal portions. Her interest in the personal property of the community was bequeathed to William Avery absolutely. Her will was duly probated. In "1906, William Avery remarried, his second wife being Lucy Avery. There were no children of this marriage. William Avery died in 1909. His will was offered for probate, but its probate was contested by Lucy Avery, the surviving wife. It was admitted to probate in the County Court. Lucy Avery died pending the appeal to the District Court, but in the latter court it was likewise admitted to probate, by an agreed judgment.

The suit was between the heirs of Lucy Avery, Annie Williams, an illegitimate daughter of William Avery, and her son, Eugene Tillman, upon one side, and the children of William and Jane Avery, the first wife, upon the other.

The will of William Avery was made in 1908, about a year before his death. The controversy concerns alone the 701.71 acres of land, the community property of the first marriage. The provisions of William Avery’s will relating to the land were as follows:

“(2) It is my will that the children of my first wife, Jane Avery, now deceased, shall have 67 acres of land each out of the real estate owned by me at the time of the death of their mother, except my son, Walter Avery, to whom I bequeath SO acres.
“(3) I bequeath to my present wife, Lucy Avery, the balance of all my real estate except 50 acres out of the Simpson tract, which said 50 acres I hereby give to my daughter, Annie Williams, to be held by her during her life time and then in fee simple to my grandson, Eugene Tillman.”

The will further directed that the testator’s live stock should be divided equally between his children and the surviving wife, with the exception of one of the children of the first marriage; and that his household and kitchen furniture, with all tools, farming implements, wagons, etc., should be likewise so divided between his children and the surviving wife.

The case was tried upon an agreed statement of facts, in which the following recital appeared:

“That each and all of the devisees mentioned in said will (the will of William Avery) have agreed to accept and take under and by virtue of the terms of the said will, the samé now in all respects being in full force and effect as the last will and testament of the said William Avery, deceased.”

The trial court construed the will as a disposition of only the interest in the 707.71 acres that was owned by William Avery, but held the devise to Annie Williams and Eugene Tillman subordinate to that made the children of the first marriage. The Court of Civil Appeals, 148 S. W. 1156, held that the intent of the will was to dispose of the entire land. It also held that the children of the first marriage had elected to take under the will and hence were precluded from asserting their rights to the land derived under the will of Jane Avery, their mother. It rendered judgment for the heirs of Lucy Avery, Annie Williams and Eugene Tillman, the defendants in error, for such portions of the land as they would be entitled to under its construction of the will, remanding the case for the land to be so partitioned.

The children of the first marriage, the devisees named in the second paragraph of the will above quoted, were not required to elect whether they would take under the will, though its bequests to them of interests in personal property would confer upon them benefits to which they would not otherwise be entitled, if the will, properly construed, disposed of only the testator’s interest in the land. The real question in the case, therefore, is that of the proper construction of the will.

Under the will of Jane Avery, the children of the first marriage owned at the time of the making of William Avery’s will the title in fee to an undivided one-half interest in the land, that is, an undivided interest of 350.86 acres. By his will they were made the devisees of an undivided interest of 348 acres. Treating the will as a disposition of the entire land, they would together receive under it, in other words, less of the land than they actually owned in their own right. Four of them would each receive less than the individual interest so owned by them. Each of these four owned an undivided interest of 70.17 acres; whereas, under the will, as thus construed, they would receive an undivided interest of 67 acres.

Where a testator owns a partial interest in land and the disposal of the land is the subject of his will, it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator’s estate which, but for the will, he would not receive. The law presumes that no man will attempt a testamentary disposition of the property of others. It deprives no man of his property merely by conjecture. Therefore, for a will to be given the effect of an attempted 'disposition, of property not owned by the testator, it is required that the language of the will conclusively evidence such a purpose. In such cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction. Carroll v. Carroll, 20 Tex. 732; Moss v. Helsley, 60 Tex. 426; Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; 2 Underhill on Wills, § 730; 1 Pomeroy’s Eq. Jur. §§ 488, 489; Penn v. Guggenheimer, 76 Va. 839; Havens v. Sackett, 15 N. Y. 365; Pratt v. Douglas, 38 N. J. Eq. 516; Miller v. Thurgood, 33 Beavan’s Reports, 496.

In Rogers v. Trevathan, it was announced by Judge Stay ton that if in such a case the terms of the will are ambiguous, the testator is presumed to have intended to devise only his own interest.

In Underhill on Wills, supra, this is said upon the subject:

“If the testator’s language is cloudy or doubtful or ambiguous in meaning, so that it may be consistent with the intention of the testator that the person who has an interest in the property which he attempts to dispose of shall retain that interest and shall also hold what the will gives him, he will not be put to his1 election. * * * The intention of the testator that a devisee shall be put to an election must be either distinctly expressed in the will, or it must arise from the strongest and most necessary implication.”

In Penn v. Guggenheimer, the rule is thus stated:

“In order, however, to raise a case of election, it is well settled the intention on the part of the testator to give that which is not his own, must be clear and unmistakable. It must appear from language which is unequivocal, which leaves no rooih for doubt as to the testator’s design. The necessity for an election can never arise from an uncertain or dubious interpretation of the clause of donation. Pomeroy, 472 ; 2 Story, E. J. § 10. * ;;; * Generally when the testator has an undivided interest in certain property, and he employs general words in disposing of it, as ‘all my lands,’ or ‘all my estate,’ no case of election arises from it; for it does not plainly appear that he meant to dispose of anything but what was strictly his own. 2 Story, E. J. 1087; Pomeroy, § 489.”

In Havens v. Sackett, a leading case, it is thus announced:

“It must be clear beyond all reasonable doubt that he (the testator) has intentionally assumed to dispose of the property of the beneficiary, who is required, *on that account, to give up his own gift.”

The rule is nowhere better stated than in 1 Pomeroy’s Equity Jurisprudence, § 488:

“Where the testator has a partial interest in the property devised or 'bequeathed by his will, the necessity of an election is always much less apparent than where he purports to bestow property in wpich he has no interest whatever. In such cases it is a settled rule that courts will lean as far as possible in favor of an interpretation which shows an intention of the testator to give only the interest, estate, or share which he is enabled, by virtue of his own right, to deal with. * * * It requires a strong, unequivocal expression or indication of an intent to bestow the entire property, and not simply his own interest in it, or to bestow the property free from its incumbrances and charges, in order to raise the necessity for an election.”

Iu the same work at section 489, this is said:

“Wherever, therefore, the testator does not give the whole property specifically, but employs general words of description and donation, such as ‘all my lands,’ and the like, it is well- settled that no case for an election arises, because there is an interest belonging to the testator to which the disposing language can apply, and the prima facie presumption as to his intent will control.”

The devises of land made by the testator in .the second paragraph of the will, it is distinctly therein stated, were out of the real estate “owned by him at the time of the death of Jane Avery.” The devises made in the third paragraph likewise dealt only with such land as he owned. He owned only an undivided interest of 350.86 acres in the 701.71 acres. If effect be given to the express limitation of each of the devises to only such land as the testator owned, it is plain that the will cannot be construed as an effort to dispose of land he did not own. Eor the will to be given such construction, unequivocal language must be found in it which effectually negatives this express limitation and makes it clear beyond any reasonable doubt that, notwithstanding the testator’s use of these restrictive terms, his attempt was to dispose of the land which the children of the first marriage owned in their own right. The use of the term, “the balance of my real estate,” in the devise made Lucy Avery in the third paragraph, is not inconsistent with the limitation, notwithstanding there would be no balance remaining after the satisfaction of the other devises. It only emphasizes a purpose on the part of the testator to deal with merely his own land, since it expressly says that the subject of the devise is the balance of “my real estate.” There is a manifest difference between the balance of an interest which a man owns in land, and the balance of the land in which the interest is owned.

Nor can it be said that by the devise in the third paragraph of the 50 acres out of the Simpson tract to Annie Williams for life, witli remainder to Eugene Tillman, there is evinced beyond doubt an intention on the testator’s part to dispose of the land owned by his children. The 50 acres, it is expressly stated, are given out of “his” real estate.

With every devise in the will limited by express language to land which the testator owned, it is but pure conjecture to say of this will that it attempted to dispose of an interest of 350.86 acres of land belonging to others. The rule is plain that to warrant such a construction, there must be an attempted disposition under the will of the entire land. The will reveals an attempted disposition of only 398 acres and an undefined balance, all limited by express terms to. land owned by the testator. No amount of reasoning can construe this into an unequivocal disposition in terms of the entire 701.71 acres. But for the limitation placed upon the devises to the children of the first marriage and to Annie Williams and Eugene Tillman, restricting them to land belonging to the testator, it might be said that the will evidences a purpose to specifically dispose of 398 acres, which was 47.14 acres more than the testator owned. But this would not reveal a purpose to devise the entire 701.71 acres. The devise to Lucy Avery of “the balance of my real estate” can mean but one thing, that is, that she should receive of the land belonging to the testator only the part remaining after the satisfaction of the other devises, whatever that might be, and depending entirely upon the extent to which the other devises exhausted the land which he owned. It therefore adds nothing as a specific appropriation of any part of the land. It thus appears that when this devise and the other devises are considered together, they yet fall short of a disposition, specifically, of all the land.

It is only by treating the testator’s language as ambi'guous and as evidencing a possible intention to dispose of his children’s interest in the land as well as his own, that the will may be regarded as a disposition of the entire land. But even were it conceded that the language is ambiguous, the will cannot be construed as a disposition of other than the testator’s own interest in the land, since, in such a ease, the testator is presumed to have intended to devise only his own interest. Rogers v.. Trevathan, supra.

Since the testator did not undertake to give the whole property specifically, but limited each devise in the will to land which he owned, the case, in our opinion, falls clearly within the rule as stated in 1 Pomeroy’s Equity Jurisprudence, section 489, above quoted, and the prima facie presumption that he intended to devise only that which he had a right to dispose of controls the question.

It will be found that those cases in which this court has held that the will evidenced an intention on the part of the testator to' dispose of property in which he owned only an interest, dealt with testaments which specifically disposed of the entire property, either by express designation or particular appropriation. See Rogers v. Trevathan, supra; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520; Id. (Civ. App.) 31 S. W. 76. They but emphasize the correctness of the ruling here made. See also Skaggs v. Deskin (Civ. App.) 66 S. W. 793; Packard v. De Miranda (Civ. App.) 146 S. W. 211; and Swilley v. Phillips (Civ. App.) 169 S. W. 1117.

The devise made in the third paragraph of the will of the 50 acres to Annie Williams for life, with remainder to her son, Eugene Tillman, is in the nature of a specific devise, since it designates the particular tract of land out of which the 50 acres are given. The devises in the second paragraph to the children of the first marriage are general devises, and are subject to proportionate abatement if the half interest in the 701.71 acres of land owned by William Avery, which we hold was disposed of by the will, is insufficient to satisfy the specific devise of the 50 acres to Annie Williams and Eugene Tillman, and the general devises to such children, in full. Annie Williams and Eugene Tillman are accordingly entitled to have judgment rendered in their favor for an interest of 50 acres out of the Simpson tract of land, to be given Annie Williams for life, with the fee in remainder to Eugene Tillman. The devisees under the second paragraph of the will, the children of the first marriage, are entitled to judgment for the remainder of William Avery’s interest in the 701.71 acres, that is, an interest of 300.86 acres, to be divided between them in the proportions designated in the devise made them. The judgments of the Court of Civil Appeals and the District Court are accordingly reversed, and the cause is remanded to the District Court for the rendition of judgment in accordance with this opinion and the corresponding partition of the land.
      iimoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      rfteaFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes