text:
    FREEMAN v. MILLER.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.)
    1. Appeal and Error (§ 512) — Record—Jurisdiction oe Lower Court — Necessity oe Showing.
    Where there is no copy of the transcript from the justice’s court in the record, or of the appeal bond filed in that court, the record of the Court of Civil Appeals does not show jurisdiction in the county court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dee. Dig. § 512.]
    2. Appeal and Error (§ 79) — Judgments Appealable — Final Judgments.
    Where a verdict was rendered for several railroads, who were defendants, together with a receiver, the judgment, which failed to provide that plaintiff take nothing against such railroad defendants, was not final, so as to give the Court of Civil Appeals jurisdiction of an appeal therefrom.
    TEd. Note. — For other cases, see Anneal and Error, Cent. Dig. § 277; Dec. Dig. § 79.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by M. Miller against T. J. Freeman, receiver of the International & Great Northern Railroad Company, and others. From a judgment for plaintiff, defendant receiver appeals.
    Appeal dismissed.
    Wilson, Dabney & King and J. W. Lewis, all of Houston, for appellant. George L. Teat and J. E. Melton, both of Houston, for appellee.

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

   MOURSUND, J.

We are informed by appellant in his brief that this case was instituted in the justice’s court of Harris county by appellee against the International & Great Northern Railroad Company, Thos. J. Freeman, receiver thereof, the Tekas & Pacific Railroad Company, Mobile & Ohio Railroad Company, and the St. Louis, Iron Mountain & Southern Railroad Company, for $199.60, alleged to be due for damages caused to certain household goods shipped from Tupelo, Miss., to Houston, Tex.; that the defendants Texas & Pacific Railroad Company, St Louis, Iron Mountain & Southern Railroad Company, and T. J. Freeman, receiver, filed certain answers in the justice’s court, and that judgment was rendered in favor of plaintiff for the full amount sued for, from which Freeman, receiver, appealed to the county court. No copy of the transcript from the justice’s court appears in the record, nor any copy of the appeal bond filed in justice’s court. The record, therefore, fails to show jurisdiction in the county court. Wells v. Driskell (Sup.) 145 S. W. 333; Powell v. Hill, 152 S. W. 181. The record may be amended to cure such defect in the manner pointed out in said case of Wells v. Driskell.

The Mobile & Ohio Railroad Company has not been disposed of so far as is shown by the record. The transcript shows neither citation served upon said defendant, nor answer by it, and if the transcript from the justice’s court was copied in the record and also failed to show service, the judgment, according to some of our decisions, could not be objected to for failing to dispose of said party. Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Varrus v. Faulkner, 138 S. W. 789; Porter v. Railway Company, 56 Tex. Civ. App. 479, 121 S. W. 897; Wilson v. Smith, 17 Tex. Civ. App. 194, 43 S. W. 1086. There are, however, cases holding the contrary.

It also appears that while a verdict was returned in favor of the Texas & Pacific Railroad and the St. Louis, Iron Mountain & Southern Railroad, and the return of such verdict is recited in the judgment, yet the court failed to enter judgment that plaintiff take nothing against said defendants, and they remain undisposed of. The judgment is therefore not final, and this court has no jurisdiction of the appeal. Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; Traction Co. v. McMurray, 140 S. W. 478.

The appeal is dismissed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    JONES v. FIRST NAT. BANK OF GAINESVILLE.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.)
    1. Bills and Notes (§ 537*) — Bona Fide I-Ioldeb — Question fob Jury.
    Where plaintiff states the note sued on was indorsed to it before maturity, and produces abundant and strong proof to sustain it, and defendant introduces testimony tending to show that another was in possession and was the owner of it a few weeks after its maturity, when plaintiff claims to have been its owner, there is more than a scintilla of evidence for defendant on the issue, so as to require its submission to the jury.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.*]
    2. Appeal and Error (§ 1001*) — Trial (§ 139*) — Taking Case from Jury.
    Where there . is more than a scintilla of evidence for each party on the issue, the case must go to the jury; and, in such a case, before a verdict has been rendered neither the trial nor appellate court has power to determine that a verdict for one of the parties would be so against the weight and preponderance of evidence as to require it to be set aside.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001;* Trial, Cent. Dig. §,§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]
    Appeal from Cooke County Court; C. R. Pearman, Judge.

      Action by tbe First National Bank of Gainesville against H. R. Jones. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Stuart, Bell & Moore, of Gainesville, for appellant. Davis & Davis, of Gainesville, for appellee.
   HENDRICKS, J.

The appellee, tbe First National Bank of Gainesville, Tex., sued appellant, H. R. Jones, in tbe county court of Cooke county, upon a promissory note, executed by appellant, payable to tbe order of tbe bank of Myra, a partnership, for tbe sum of $639.65; said note dated July 15, 1910, and maturing July 1, 1911, claiming to be tbe assignee and owner of same, by indórsement from tbe Myra bank. Tbe appellant answered under oatb, alleging payment of tbe note to tbe bank of Myra, and further that tbe First National Bank of Gainesville acquired said note after maturity, and tbe county judge peremptorily instructed tbe jury in favor of tbe appellee bank, for tbe full amount of tbe note.

As to tbe propriety of tbe peremptory instruction, the appellant contends that there was sufficient evidence tending to prove tbe ownership of this note in another, at a time totally inconsistent with the claim of ownership of tbe appellee, and that such testimony in opposition tends to prove that tbe Gaines-ville bank did not acquire the note before maturity, but its acquisition was necessarily after maturity, letting in tbe plea of payment interposed by appellant to cancel tbe paper. Tbe appellee exhibits a blank indorsement upon the note and testimony by tbe president, vice president, and assistant cashier, to tbe effect that tbe note was acquired before maturity with a blank indorsement upon tbe paper, dated July 16, 1910, one day after tbe execution of the note, with other testimony tending to prove its ownership during tbe period claimed. The principal evidence of tbe appellant is that one Harris, during September, 1911 (tbe note maturing July 1; 1911), was in possession of said note, claiming to own it, and exercising acts of ownership over tbe same and was attempting to trade and sell tbe paper as tbe owner, which, if true, appellee could not have acquired tbe note at tbe time claimed.

The Supreme Court of this state has said, in tbe case of Washington v. M., K. & T. Ry. Co., 90 Tex. 321, 38 S. W. 766: “We recognize tbe rule that, in order to require an issue to be submitted to tbe jury, there must be something more than a scintilla of evidence. There must be evidence sufficient to warrant a reasonable belief of tbe existence of tbe fact which is sought to be inferred.” And tbe Supreme Court of Illinois says that “a mere scintilla of evidence, if it means anything, means tbe least particle of evidence — evidence which, without other evidence, is a mere trifle.” Offut v. World’s Columbian Exposition, 175 Ill. 472, 51 N. E. 651. Tbe only other rule we know of to assist us as to tbe sufficiency of evidence to warrant a reasonable belief of tbe existence of a fact which is sought to be inferred, and advances tbe value of testimony from tbe scintilla to tbe probative stage, and increases its significance sufficiently as worthy of proof of an issue of fact, is tbe rule of our Supreme Court, enunciated in tbe Lee Case, 89 Tex. 588, 36 S. W. 63 (stated by us conversely to tbe statement there), that, where tbe evidence is of such character that there is no room for ordinary minds to differ as to tbe conclusion to be drawn from it, it ceases to be a question of fact for tbe jury. Hence tbe question here, whether tbe testimony has advanced from tbe nebulous condition of tbe scintilla status to the more concrete one proving a litigated fact, and considering both rules, is determinable by tbe opposition of facts attempted to be sustained. Tbe appel-lee says, “Tbe note was indorsed to me before maturity,” and produces abundant and strong proof to sustain it; tbe appellant introduces testimony tending to show that another was in tbe possession and was tbe owner of said note a few weeks after tbe maturity of same and at a time when appel-lee so strongly and vigorously claims to have owned tbe paper-two inconsistent facts, tbe deduction from each tending to prove contrary issues, which we clearly think tbe jury should have decided.

Tbe appellee earnestly contends that the preponderance of tbe testimony, and tbe great weight of tbe same, is so strong in bis favor as to require tbe trial court to set a verdict aside if found against him. Believing that there is some testimony more advanced than tbe scintilla stage, which ordinary minds might differ upon, as to tbe ownership of tbe note in September, 1911, we would rather for tbe trial court to pass upon that question if a jury were to decide against tbe appellee before we deprive the appellant of a jury trial. We have searched tbe authorities for a precedent for tbe exercise of power inherent in this court to determine a case by making an original determination of a question of fact, where tbe trial court has taken tbe ease from tbe jury — where tbe evidence is in a similar condition as in this record, assuming that it strongly preponderates in favor of tbe appellee. This is different, however, from a case of a total lack of evidence, of insufficient evidence, or evidence in tbe scintilla class, in which condition it is tbe duty of this court to render such judgment as tbe trial court should have rendered. And we are unable to find such an authority, and tbe tendency of tbe bolding of tbe Supreme Court is against tbe position. Choate v. Railway Company, 91 Tex. 406, 44 S. W. 70. Tbe Supreme Court says that it was never intended to substitute tbe judgment of tbe appellate courts upon tbe facts of a case in place of that of tbe jury, and to make the determination of these courts final. Of course, where the verdict of a jury is so manifestly against the strong preponderance and the weight of the testimony as to indicate that it was the result of an improper motive, and not a determination of the case, based upon the facts, we have the power to set it aside, even if the trial court fails in that respect; but, unless we are affirming the judgment or verdict of a case upon appeal, we have no power to make an original determination of a question of fact, where the evidence is sufficient to put it to the jury, and it is only thereafter that a trial court, or an appellate court, can correct what a jury has improperly decided.

The case is reversed and remanded.


author: HALL, J.

text:
    LLOYD v. ROBINSON.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.)
    1. Venue (§ 8) — County oe Domicile — Fraud.
    Where defendant, a resident of W. county, was induced, while intoxicated and “doped” by plaintiff to gamble and execute the checks in question for money lost in T. county in gambling while intoxicated, his act in stopping payment on the checks by telephone from T. county was not fraudulent so as to give the justice’s court in T. county jurisdiction of an action for the amount of the checks, under Rev. Civ. St. 1911, art. 1830, subd. 7, providing that no person shall be sued out of the county of his domicile, except in cases of fraud, when suit may be brought in the county in which the fraud was committed, since defendant in stopping payment on the checks was merely attempting to prevent the consummation of a fraud upon himself.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.]
    2. Contracts (§ 137) — Legality.
    The whole consideration of a contract is void if any part thereof is illegal, and it is immaterial whether the illegality is a violation of statute or of the common law.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 701-712; Dec. Dig. § 137.]
    3. Gaming (§ 19) — Checks foe Gambling— Stopping Payment.
    Checks given for money to be used in gambling cannot be collected as between the drawer and payee, so that payment of such checks may be stopped by the drawer.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ .39-43; Dee. Dig. § Í9.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by W. M. Robinson against Coke Lloyd. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded, with instructions.

      Á. J. Clendenen, of Ft. Worth, for appellant. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.

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

   HALL, J.

In the month of August, 1911, appellant, Lloyd, shipped cattle from his home in Wise county to Ft. Worth in Tar-rant county. After the sale of the cattle he proceeded to appellee’s saloon, where he claims he became intoxicated, and the testimony is undisputed that he was so drunk he had very little recollection of the amount of money which he expended in the saloon and which he lost in a game of poker in a room over the saloon. This suit was instituted in the justice court of precinct No. 1 of Tarrant county, by appellee, to recover of appellant the sum of $165, being the aggregate amount of three checks drawn by appellant on the First National Bank of Decatur, Tex., and delivered to appellee. Appellant testifies, and it is not denied, that the money obtained on these three checks, in addition to $60, which appellant had when he first went to appellee’s saloon and gambling den, was all lost in the Saturday night game of poker, except $10, which appellee let him have on a check, and which appellant paid to a doctor who attended him while he was recovering from the effects of the liquor and “dope” which appellant claims was administered to him in appellee’s saloon, and which is not denied. It is not denied that at the time the checks were given appellant fully intended that they should be paid by the drawee bank in Decatur, and it seems his condition as to sobriety was such at the time that he was incapable of committing a fraud, if such had been his original intention. Appellant alleged his residence to be in precinct No. 6, Wise county, Tex., and negatived all the exceptions which under the venue statute would have given the justice court of Tarrant county jurisdiction of his person. His plea was sustained by uncon-troverted testimony. Appellee alleged as follows; “That defendant, after delivering said checks, has stopped payment of them, and is denying liability thereon, and thereby attempting to defraud plaintiff, to his damage in the sum of $165; that after executing and delivering said checks, the defendant, while in Ft. Worth, Tarrant county, by a telephone message sent by his authority to the First National Bank of Decatur, stopped the payment of said checks, and thereby attempted to and did commit a fraud against plaintiff in Tarrant county, Texas.”

These allegations are insufficient to charge such fraud as would give the justice court of precinct No. 1 of Tarrant county jurisdiction of the person of appellant, under subdivision 7, art. 1830, R. S. 1911. The pleadings and evidence in this ease disclose that a fraud had been perpetrated upon appellant, in that he had been induced, while intoxicated, to engage in an unlawful game with cards; that the money obtained upon the checks has been lost in such game, but that he had no intention to stop payment of the checks at the time they were executed. Subsequently, when informed by a friend that lie had been robbed, he procured his friend to phone the bank to' refuse payment of them. This was not a fraudulent act on his part, but was an attempt to prevent the consummation of a fraud which he alleged had theretofore been perpetrated upon him.

The rule in this state is, if any part of the consideration for a contract is illegal, the whole consideration is void, and public policy will not permit the enforcement of such a contract as between the parties, it' matters not whether the consideration is illegal because it consists in some act prohibited by a statute, or because it violates some rule of the common law. Seeligson v. Lewis & Williams, 65 Tex. 215, 57 Am. Rep. 593.

A note given for money to be used in gambling cannot be collected as between the maker and payee if such defense is interposed, and the cheeks in question stand upon the same footing. It is no more fraudulent to stop the payment of such checks than it is to plead and prove the illegality of the contract in a suit upon the note.

The county court erred in overruling the plea of privilege, and the judgment is reversed and the cause remanded, with instructions to the county court of Tarrant county to enter an order sustaining the plea of privilege, change the venue of the suit, and transfer the case to the justice court of precinct No. 6 of Wise county, Tex.

Reversed and remanded, with instructions.


author: DUNKLIN, J. CONNER, C. J. DUNKLIN, J.

text:
    TEXAS CO. v. DAUGHERTY et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.
    Rehearing Denied Nov. 1, 1913.
    Additional Conclusions, Nov. 29, 1913.)
    1. Taxation (§ 63) — Peopeety Subject — In-cobpobeal Rights.
    Under Const, art. S, § 1, providing that all property shall be taxed in proportion to its value, and Rev. Civ. St. 1911, art. 7503, providing that all property, real, personal, or mixed, except such as may be exempted, is subject to taxation, article 7504, providing that real property, for the purpose of taxation, includes the land and all the buildings, structures, and improvements or other fixtures thereon, and all rights and privileges belonging or in any wise appertaining thereto, and article 7509, providing that every resident shall list all of his real estate, moneys, credits, etc., and all other property for taxation, the rights of the lessee under oil and gas leases, though subject to forfeiture under certain conditions, and though wells have not been drilled, are subject to assessment for taxation against the lessee, separate from the assessment against the owner of the land; such interests constituting rights and privileges belonging or appertaining to the lands within article 7504.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 147; Dee. Dig. § 63.]
    2. Taxation (§ 47) — Peopeety Subject-Double Taxation.
    Where, in assessing land to the owners for purposes of taxation, the value of the rights held by an oil and gas lessee was not included, the assessment" of such rights to the lessee would not result in double taxation.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 104-114; Dec. Dig. § 47.)
    3.Taxation (§ 611) — Enjoining Collection — Pasties.
    The collection of county taxes could not be enjoined in a suit against the tax assessor, tax collector, county judge, and county commissioners, to which the county itself was not a party.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.]
    Conner, C. J., dissenting in part.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Action by the Texas Company against W. H. Daugherty and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Mathis & Kay, of Wichita Falls, and R. A. John, of Houston, for appellant. Montgomery & Britain, of Wichita Falls, and B. F. Looney and G. B. Smedley, both of Austin, for appellees.

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

   DUNKLIN, J.

The Texas Company, a corporation, with its principal office in Houston, Harris county, owned what are termed oil and gas leases upon certain lands situated in Wich'ita county. The company instituted this suit to enjoin the tax collector, tax assessor, and the county commissioners of Wichita county from enforcing the collection of county and state taxes which had been assessed against the company upon those leases. The merits of the case were determined by the trial court upon an agreed statement of facts which is hereinafter shown, and, from a judgment denying plaintiff the relief sought, it has appealed.

The agreement of the parties referred to is as follows:

“We, the undersigned attorneys for the plaintiff and the defendants in the above-entitled cause, for the purpose of expediting the trial of the said cause, hereby make and enter into the following agreement, to wit:
“(1) It is hereby agreed: That on January 1, 1912, and at all times thereafter until this date, the plaintiff was the owner of whatever rights, titles, and privileges were granted to or conferred upon it by certain instruments in writing and commonly known as oil and gas leases, all of which instruments had been duly executed by the several owners of the several tracts of land situated in Wichita county, Texas, and described in the plaintiff’s petition, and that the several instruments conferring said rights were all in the form as shown by Exhibit A attached to the plaintiff’s petition; the blanks in said form being properly filled in each of said instruments so as to show the date, the name of the grantor and grantee, the consideration paid (which was a valuable one), the correct description of the land, and each of them providing for the payment to grantor of one-eighth of all oil produced and saved on the premises, and each of them also providing for the payment of a sum in cash annually or quarterly for each gas well, and providing for the beginning of a well within a certain time, or the payment of a certain sum in cash in lieu thereof, and that such payments might be made for a term of years, either three, five, or ten years, and containing all the other provisions as indicated in the form of lease attached to the plaintiff’s petition and marked Exhibit A, all the blanks in said form being properly filled in each instance. That all of said instruments were duly acknowledged and filed for record in Wichita county, Texas, and each of said instruments, where the same covered a homestead or any part thereof, were properly signed and acknowledged by both the husband and the wife.
“(2) It is admitted and agreed that the plaintiff prior to January 1, 1912, had entered on certain tracts of said land, and had drilled for oil thereon, and had developed the same, and that Exhibit B shows the state of development on each of said tracts of land on the 1st day of January, 1912; that is, the several tracts upon which wells had been bored, and which were producing oil either by pumping or from flowing wells. And it is further agreed that on the 1st day of January, 1912, none of said leases had been by plaintiff abandoned or surrendered, but that all of them were in force.
‘‘(3) It is admitted and agreed that the owners of the fee of all of said lands had rendered said lands for taxes for the year 1912, and that in valuing said lands for tax purposes they had been assessed and valued at the fair market value of the same, subject to all the rights and privileges of the grantee in said oil and gas leases, and that the value of the rights and privileges conferred by said oil and gas leases were not included in the assessed value of the land against the owner of the fee.
“(4) It is admitted that all the formalities of law requisite to the proper assessment of the taxes on said rights and privileges of the plaintiff were complied with; the taxes being duly and regularly entered on assessment blanks by the assessor as unrendered property, that is, said property was assessed against the plaintiff, although the plaintiff had refused to render the same. And it is also admitted that the valuations of said property were duly and legally equalized by the commissioners’ court of Wichita county, sitting as a board of equalization, and that said property was, with the values assessed and fixed by said commissioners’ court, sitting as a board of equalization, duly entered upon the tax rolls of Wichita county, Texas, for the year 1912, and now appear upon said tax rolls as a charge against the plaintiff.
“(5) It is agreed that the allegations of the first and second paragraphs of the plaintiff’s petition are true. It is admitted that the allegations of the third paragraph of the plaintiff’s petition are true to this extent: That the leases were not rendered by plaintiff for taxation, and it is admitted that the-tax assessor did assess said rights and privileges, if any, held by virtue of said , leases, against the plaintiff for the year 1912, and that the said commissioners’ court did equalize and fix the value of the same, and ordered the same entered upon the rolls.
“(6) It is further admitted that the amount of taxes assessed against said property was-as stated in the fifth paragraph of the plaintiff’s petition, to wit, thirty-one hundred thirty and 10/100 ($3,130.10) dollars.
“(7) It is admitted that the sixth paragraph of the plaintiff’s petition properly describes the lands covered by the leases referred to in plaintiff’s petition, and shows the acreage and value placed upon said' rights of the plaintiff by said commissioners’ court.
“(8) It is admitted that the plaintiff never did own the fee in any of the lands described in its petition, but that its rights, if any, in and to such lands or to the use thereof or to any oil or gas that might be produced therefrom were all derived under' oil and gas leases substantially in the form as shown by Exhibit A attached to said petition.
“(9) It is admitted that the plaintiff has paid to the tax collector, of Wichita county, Texas, all taxes assessed against it upon all property rendered by it for taxes for the year 1912, in Wichita county, Texas.
“(10) It is admitted that the allegations of the ninth paragraph of the plaintiff’s petition are true, in so far as it alleged the protest by-plaintiff and disregard thereof by the commissioners’ court.
“(11) It is further admitted that the plaintiff has paid taxes on all personal property owned by it for the year 1912 that was rendered by it, and upon all personal property owned by it for said year 1912, unless the-rights and privileges conferred by said oil and gas leases were personal property; they not having paid any taxes upon any rights or-privileges granted or conferred upon it by said oil or gas leases. It is also admitted that the plaintiff has paid taxes upon all oil which it had actually produced and had on hand on January 1, 1912, in Wichita county, Texas; that is, it paid taxes on all oil which-it had stored in tanks in Wichita county, Texas, on said date.
“(12) It is admitted that the plaintiff is a private corporation, and that its general and' principal office and place of business and domicile was at all times during the year 1912 at Houston, in Harris county, Texas, and that during all of said time it kept its-archives, records, documents, files, muniments^ of title, muniments of rights, licenses, and all of the oil and gas leases for lands in-Wichita county, Texas, and including all the-leases Involved In this suit, at Houston, in Harris county, Texas. (This admission is intended to cover simply the paper evidence of the leases referred to.)
“(13) It is admitted that the allegations of the twelfth paragraph of the plaintiff’s petition are true except the statement as to illegality of the levy and assessment of the leases. It is further agreed that this case shall be submitted to the court upon the foregoing agreement, and that the only question to be determined by the court is the following: ‘Were the rights and privileges and interests of the plaintiff, as shown by the foregoing agreement, and which were held by it under and by virtue of the oil leases referred to in the above agreement and by development done pursuant thereto, property, and as such subject to taxation as against the plaintiff in Wichita county, Texas, for the year 1912?’ If said question is answered in the negative, the collection of the taxes shall be enjoined as prayed for by the plaintiff; if in the affirmative, then the injunction shall be denied, and judgment shall be rendered by the court in favor of the state of Texas and Wichita county for the amount of taxes as shown in said petition, with ten per cent, penalty for a failure to pay the same, by February 1,1913, and six per cent, interest as authorized by law. If the court should determine that a portion of the property or rights herein referred to were properly taxable in Wichita county, Texhs, and that a portion of the same was not so taxable in the county of Wichita, Texas, that then the court shall render judgment for such portion of the taxes, penalty, and interest as may be due on the property which the court finds to be taxable.”

Exhibit A made a part of the agreement reads:

“This oil and mineral lease and contract between * * * (hereinafter styled grantor, whether one or more) and * * * (hereinafter styled grantee), witnesseth: That said grantor does hereby grant, bargain, sell, and convey unto the said grantee all of the oil, gas, coal, and other minerals in and under the lands herein described, together with the exclusive right of ingress and egress at all times for the purposes of drilling, mining, and operating for oil, gas, coal, and other minerals, and for conducting all operations, and the erection of appliances and structures in regard thereto, and for laying all pipe lines necessary for the production, mining, storing, and transportation of oil, gas, and other minerals (with privilege of renewing and removing all such structures at will), reserving and securing to the grantor, however, the royalties, payments, and other benefits and advantages hereinafter provided for. And it is agreed that the grantee shall have free use of oil, gas, water, and wood from said lands for all developments and operations thereon; said lands being described as follows: * * * In * * * county, Texas, and being * * * to have and to hold, all and singular, the above-described premises, rights, properties, and privileges, and all such as are hereinafter specified, unto the said grantee, and the heirs, successors, and assigns of such, forever, upon the following terms:
“(1) The considerations of this contract are as follows: (a) The sum of * * * dollars, payment whereof by the grantor is hereby acknowledged; (b) such other payments by the grantee, if any, as may be hereinafter provided for; (e) the royalties hereinafter specified; and (d) the expenditure by the grantee of such sums of money as may have been or may hereafter be made upon the above premises, or upon neighboring lands, planned for the development of mineral resources in such locality, and the payments and expenditures made or that may be made by grantee are considerations not only for the mineral rights in the lands aforesaid, but for all the other privileges granted herein.
“(2) The royalty above mentioned as to oil shall be a quantity equal to * * * of all produced and saved upon the premises the same to be delivered at the well, free of charge to the grantor, or to his credit, in the pipe line to which such wells may be' connected.
“(3) The royalty for coal shall be four cents for every ton of the same that is mined and marketed, payable monthly.
“(4) The royalty for natural gas shall be $100.00 per annum for each well from which gas is used off the premises, the grantor to have the privilege, at his own risk and cost, to make connection and use gas free of charge for one dwelling on the premises.
“(5) The royalty for any other minerals discovered shall be one-tenth of the net proceeds arising therefrom while the same are being used off the premises.
“(6) Under penalty of forfeiture of the rights and estates hereby granted, operations for the drilling of a well for oil or gas shall be begun within * * * from the time of final execution and delivery of this contract, and, if so forfeited, the rights and liabilities of both parties shall thereupon be ended. Forfeiture may, however, be saved by the grantee, and the vitality hereof be continued and maintained, notwithstanding operations be not begun within the proper time limit, provided only that for the privilege of delay in such beginning from time to time the grantee may pay, as hereinafter provided, * * * dollars per quarter, for a period not exceeding * * * years from delivery hereof. Operations upon a well begun shall be prosecuted with diligence, unavoidable accidents and contingencies only excepted, and when a well is begun it shall, be sunk to a depth of * * * feet, unless oil or gas be sooner developed in paying quantities; but a well which may be lost or spoiled may be continued at another location, and to be considered the same as the original. After a well is begun, no further payment in respect to delay shall be due, and for every well drilled there shall in all events be secure from forfeiture an area of 200 feet square, with the well in the center, together with * * * acres of land adjoining, said acreage to be precisely designated by the grantee, if the grantor so demands.
“(7) Any payments due or to become due hereunder shall be deemed complete if made or tendered to the grantor, or if deposited or tendered for deposit to the credit of the grantor in the * * * Bank at * * *.
“(8) Ixi case the grantee, or the successors or assigns of such, should sink a well or shaft, and discover either oil, gas, or other minerals within the limits of time, or the extension of. such as herein provided for, then this conveyance shall be in full force and effect for twenty years from the discovery of said product, and as much longer as such minerals are produced in paying quantities.
“(9) No well shall be drilled nearer than * * * feet of the house or barn now on said premises, unless by consent of both parties. It is agreed that the grantor is to have the exclusive use of the premises here-inbefore described for all purposes other than above mentioned. When requested, grantee agrees to bury all pipe lines below plow depth, and pay all damages caused to growing crops and fences, when injured by grantee or by employés of such.
“(10) This lease is not intended as a mere franchise, but is intended as a conveyance of the property and privileges above described for the purposes herein mentioned, and it is so understood by all parties hereto.
“(11) It is agreed that this contract and all the terms hereof shall extend to and be binding upon the successors, legal representatives and assigns, and successive assigns, of such parties, respectively.”

Upon eight of the leases assessed for taxation no wells had been drilled at the date of the assessment, and the aggregate value at which these leases were assessed was $69,205.25.

In this court, as in the trial court, the only question presented for our determination is that contained in the agreement copied above. Appellant admits that the privileges and interests acquired by virtue of the instruments termed “oil and gas leases” are property, and that the Legislature could, if it saw fit so to do, subject them to taxation, but contends that there is no statute requiring them to be taxed. The following are substantially the contentions urged in appellant’s brief:

First. That oil and gas are fugitive substances having no fixed situs in the land, and do not become private property until they are taken from the land and reduced to actual possession, and that from the very nature of the subject-matter the oil or gas leases in question convey to the lessee no title or estate in the land, but only the right to explore it and extract therefrom the gas and oil there found.

Second. That such right is a chattel real, and not taxed by any of the statutes of this state.

Third. That, if they are taxable at all, they are taxable as personal property only, and that, too, in the county of the domicile of the owner.

fourth. That the owners of the fee in the lands covered by the leases are taxed upon the entire values of those lands, including the privileges acquired under the leases, and that to tax the leases in addition to the taxes imposed upon the owners of the fee would be double taxation, which is not permissible in the absence of any statute specifically so providing.

Fifth. That the leases in question, and especially those upon lands which have not been exploited for oil or gas, are but conditional options of permits, subject to abandonment or forfeiture upon conditions contained in the leases.

Appellant has cited many authorities, excerpts from many of which appear in the briefs. We will quote a few of these only, as most of the authorities cited announce substantially the same views:

“Oil and gas, while in the earth, unlike solid minerals, are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil that is in the ground, but of such a part thereof as the grantee may find, and passes nothing which can be the subject of an ejectment or other real action.” Watford Oil Co. v. Shipman, 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144.
“The grant of oil and gas is a grant of such oil and gas as the grantee may find, and he is not vested with any estate in the oil or gas until it is actually found,” since, on account of their wandering nature, and their liability to escape or be withdrawn to other lands, they are not subject to absolute ownership. Poe v. Ulrey, 233 Ill. 56, 84 N. E. 46.
“By the terms of that instrument the lessor granted to the lessee all the oil and gas in and under the land described, ‘and also the said tract of land for the purpose of operating thereon for oil and gas.’ By a course of decisions it is well settled in West Virginia that a lease of this character is not a grant of property in the oil or in the land, but merely a grant of possession for the purpose of searching for and producing oil.” Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320.
“The law seems to be settled that, under a lease of the nature here in question, title to the oil in place is not in the lessee.” The lease, under these decisions, does not have the effect of placing the title of the oil and gas that is under the surface of the land in controversy in the lessee, but is to grant to the lessee the privilege of exploiting for the oil and gas. Backer v. Penn Lubricating Oil Co., 162 Fed. 627, 89 C. C. A. 419.

We deem it unnecessary to determine whether the leases in controversy in this ease when tested by the common law convey any title in the lands or any title to the oil or gas beneath the surface until the same is severed from the land and reduced to actual possession by the lessee, for, at last, the question to be determined is, as stated in the agreement of the parties copied above, Were the rights, privileges, and interest of the appellant acquired by the leases property, and as such subject to taxation against appellant in Wichita county? If such rights, privileges, and interest are taxable under any statute, they must be taxed, and it matters not how the Legislature has characterized them, whether as real estate or personal property.

Article 8, sec. 1, of the Constitution, reads in part: “All property in this state, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”

Following are provisions of title 126, c. 11, Revised Civil Statuses 1911:

Article 7503: “All property, real, personal, or mixed, except such as may be hereinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed.”

Article 7504 reads: “Real property, for the purpose of taxation, shall be construed to include the land itself, whether laid out in town lots or otherwise, and all the buildings, structures and improvements, or other fixtures of whatsoever kind thereon, and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same.”

Article 7506 provides in part: “The term, ‘person,’ shall be construed to include firm, company or corporation.”

Article 7509 in part reads: “All property shall be listed or rendered in the manner following: 1. Every person of full age and sound mind, being a resident of this state, shall list all of his real estate, moneys, credits, bonds or stock of joint stock or other companies (when the property of such company is not assessed in this state), moneys loaned or invested, annuities, franchises, royalties, and all other property.”

Article 7526 provides: “All property of private corporations, except in cases where some other provision is made by law, shall be assessed in the name of the corporation.”

In the case of the State of Texas v. Austin & N. W. R. R. Co., 94 Tex. 530, 62 S. W. 1050, our Supreme Court held that the franchise of a railroad company was one of the rights and privileges appertaining to roadbeds and taxable as real estate under article 7504 above quoted. In other words, that in valuing a railroad for taxation the valuation should include every right and privilege which is exercised in producing its income. Even though the reasoning in the decisions of other states might lead to the conclusion that the leases in question under the common law conveyed neither real estate nor personal property, the same could not be given effect by us in view of our statute and this decision by our Supreme Court construing the same. In that case the intangible franchise was taxed separately from the roadbed, and our Supreme Court held that this could not be done, but that it must be taxed as a part of the roadbed. Later the intangible assets statute was passed, permitting a taxation of the intangible franchises of railroad companies separately from the roadbeds. As the rights and privileges conferred by the leases to appellant in this case did not belong to the owner of the fee, necessarily they were taxable against appellant, while the fee was taxable against the owner thereof, for the reason that the statute specifically requires that all property shall be assessed to the owner. Hence the holding by the Supreme Court above mentioned, that the franchise of the railroad company could not be taxed separately from its roadbed, the roadbed and franchise belonging to the same owner, could not be given force in this ease without a violation of the express terms of the statute. Clearly the rights acquired by appellant under the leases are at all events “rights and privileges belonging or * * * appertaining” to the lands upon which the leases were given within the meaning of article 7504, and were taxable under that article, and the fact that those rights and privileges were subject to termination under the conditions contained in the leases, we think, would make no difference.

As shown by the agreement, the tax assessor assessed the fee to the owners thereof and the leases separately to appellant, and in assessing the fee to the owners he did not include the values of the franchises held by appellant under the leases which were separately assessed to appellant. It thus appears that there was not a double taxation as contended by appellant.

Independent of the foregoing conclusions, under the pleadings, there is another insurmountable obstacle to a grant of the relief sought by appellant, in this: A portion of the taxes sought to be enjoined were county taxes. Wichita county would be materially affected by a judgment enjoining the collection of the taxes claimed by it, and therefore was a necessary party defendant. But Wichita county was not sued; the tax assessor, tax collector, county judge, and county commissioners being the only defendants. See Bradford v. Westbrook, 39 Tex. Civ. App. 638, 88 S. W. 382; Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Biggs v. Lee, 137 S. W. 138; Renshaw v. Arnett, 158 S. W. 1197 (No. 7773), by this court not yet officially reported

For the reasons indicated, the judgment of the trial court is affirmed.

CONNER, C. J.

(dissenting in part). I have been unable to concur with the opinion of the majority in its entirety, but for want of time can only indicate very briefly my diverging view. It is not pretended that there is any iron, coal, or other mineral except oil to which the leases under consideration can relate, and throughout the presentation and consideration of the case the leases have been treated as applying to oil only. So treating the leases, I entertain the view of their legal effect that is contended for by appellant as indicated in the opinion of the majority. In other words, that, as applied to oil, the leases vest in appellant an intangible right or privilege only, which is not taxable apart from the land to which they relate. Such privilege, in my view, by force of the terms of Revised Statutes, art. 7504, is but an appurtenant to the land, which for purposes of taxation is inseparable from it in the absence of a statute otherwise authorizing, and it is not pretended that there is now any such statute. If this view be correct, as seems to be established by the great weight of authority, then the owner of the fee — the land — of right must be taxed for the value of the whole, including the rights and privileges appertaining thereto, and it can make no difference that in the instance before us this was not done. See State of Texas v. A. & N. W. R. R. Co., 94 Tex. 530, 62 S. W. 1050, which it seems to me has a reverse application from that given it by the majority.

Additional Conclusions.

DUNKLIN, J.

That portion of the.opinion heretofore rendered in the above-entitled cause, in which we held that Wichita county was a necessary party defendant to the suit, without which the injunction prayed for by appellants, properly, could not be granted, is withdrawn, as that holding was unnecessary to the conclusion we reached that the judgment of the trial court should be affirmed.


author: SPEER, J.

text:
    CITY OF FT. WORTH v. CURRY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 11, 1913.)
    Appeal and' Error (§ 706) — Record—Matters to be Included.
    Under Rev. Civ. St. 1911, art. 2021, providing that, where the ground for a new trial is misconduct of the jury or any communication made to the jury or that the jury received other testimony, the court shall hear evidence thereof, that it shall be competent to prove such facts by the jurors or others by examination in open court, and that, if the misconduct be material, a new trial may be granted, the denial of a new trial because certain jurors visited the premises involved would not be reviewed where the record did not show whether the court heard evidence in support of such motion or, if so, what the evidence showed, since the court is to exercise a discretion in the light of the testimony, and in the absence of such testimony it could not be determined whether such discretion was abused.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 294⅜-2947; Dec. Dig. § 706.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by J. C. Curry against the City of Ft. Worth. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. H. Slay, A. B. Curtis, and H. C. Mc-Cart, all of Ft. Worth, for appellant. Smith, Turner & Bradley, of Ft. Worth, for appellee.

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

   SPEER, J.

The appellee sued appellant to recover damages to a certain lot situated in the city of Ft. Worth, alleging that the city had excavated the street in front of plaintiff’s lot in such manner as to damage his property in the amount claimed. There was a judgment against the city in the sum of $325, which it is sought to reverse on this appeal.

There are three assignments of error presented, but all relate to one question, and that is the misconduct of the jury in that some of its members without the permission of the court or the consent of the parties, visited the premises in controversy and were influenced by what they saw. Article 2021, Revised Civil Statutes 1911, provides that a new trial may, in the discretion of the court, be granted because of the misconduct of the jury in receiving other testimony, but in such connection it is provided that the court shall hear evidence concerning such matter and of course is to exercise his discretion in the light of such testimony. There is nothing whatever in the present record to indicate that the court did or did not hear any evidence upon the issue raised by appellant in its motion for a new trial - setting up such misconduct. There is neither statement of fact nor bill of exception in this respect, and in this state of the record we cannot, of course, say the court abused his discretion in overruling the motion for a new trial, and this is the only point raised on the appeal. It may be, for aught the record shows, that the court did hear evidence and that the jurors one and all denied that they were influenced by the communication of their fellows who visited the premises, or indeed it may be that such visit, was denied altogether. The sworn motion is no more than a plea raising such issue and is not itself evidence requiring the court to grant a new trial.

The judgment is affirmed.


author: JENKINS, J.

text:
    DAY v. HUNNICUTT et al.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 22, 1913.)
    1. Torts (§, 12) — Interference with Contract Relations — Damages Recoverable.
    Where plaintiff, a negro, contracted with a carpenter for the construction of a building on a certain lot, and defendants, individually and. collectively, determined that the house should not be built, and by threats deterred the contractor from erecting it, plaintiff was entitled to recover both actual and exemplary damages.
    LEd. Note. — For other cases, see Torts, Cent. Dig. § 13; Dec. Dig. § 12.]

      2. Damages (§ 116) — Interference with Contract Relations — Damages.
    Where a negro contracted for the construction of a residence on a specified lot, and paid $200 to the contractor in advance, and he was subsequently prevented by defendants’ threats from constructing the building, and retained $100 of the advance payment for not being allowed to erect the house, he having no right to retain such sum or any other amount, plaintiff could not recover the sum so retained, as a part of his damages, from defendants.
    [Ed. Note. — For other cases, see Damages, Dec. Dig. § 116.]
    3. Evidence (§ 488) — Value of Property-Opinion.
    Evidence as to the value of real property must necessarily be a matter of ppinion, and is therefore not objectionable on that ground.
    [Ed. Note. — For other cases, see Evidence, Cent Dig. § 2273; Dec. Dig. § 488.]
    4. Torts (§ 27) — Interference with Contract Relations — Evidence — Declarations.
    Where plaintiff sued for damages sustained by defendants’ interference with a contractor for the construction of a residence for plaintiff, a negro, evidence that one of the defendants had a conversation with the contractor, in which he warned him not to allow his material to stay on the ground until night, was admissible.
    [Ed. Note. — For other cases, see Torts, Cent. Dig. § 34; Dec. Dig. § 27.]
    5. Evidence (§, 129) — Relevancy.
    Where defendants were charged with preventing a contractor from constructing a residence for plaintiff, a negro, and he testified without contradiction that he had told defendants he would not rent the house, when constructed, to any one objectionable to them, evidence as to the character of another house owned by plaintiff in another part of the town was irrelevant and immaterial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. § 129.]
    6. Witnesses (§ 275) — Cross-Examination —Reading Questions.
    It was not error to permit plaintiff to ask leading questions of defendant on cross-examination.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig. § 275.]
    Appeal from Liberty County Court; I. B, Simmons, Judge.
    Action by Aaron Day against J. D. Hun-nicutt and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Marshall & Harrison, of Liberty, for appellant. Carter & Wilson, of Dayton, for ap-pellees.

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

   JENKINS, J.

The appellant in this case is a negro. He owned a lot in the town of Dayton, near the residence of the appellees. He made a contract with a carpenter to build a residence on this lot for a consideration of $400, $200 of which was paid in advance. The appellees, individually and collectively, determined that the house should not be built, and so informed the contractor, who had put a portion of the material on the ground, and ordered him to get his material off before night. The contractor was deterred by their threats from proceeding with the building. They also notified appellant that he would not be allowed to erect said house. Each of the defendants testified upon trial-of this case that they would not have permitted the house to be erected, and still did not intend that it should be erected. Appellant claimed actual damages by reason of the loss of rent on his building, which was to be built for that purpose, and also by reason of deterioration in the price of his lot, and for $100, which the contractor retained as his damages for not being allowed to build the house, and also sued for punitory damages.

Under the undisputed evidence in this case, the court should have instructed th'e jury that the plaintiff was entitled to actual damages in whatever amount he had suffered by reason of the conduct of appellees, and also for exemplary damages in such amount as the jury should allow, not to exceed the amounts claimed in the petition. This disposes of the first, second, third, fourth, fifth, and seventh assignments of error, all of which are sustained.

We overrule the sixth assignment of error, wherein complaint is made as to the charge of the court on the allegation of $100 damages for amount retained by the contractor in not being allowed to erect the house. This is not a proper element of damage, for the reason that the contractor had no- right to retain the $100, ’ nor any other amount. If he suffered any damage by reason of the conduct of appellees, his remedy would be a suit for damages against them, and not to retain a portion of the money advanced by appellant on the contract

The eighth assignment complains of the charge of the court as to the burden of proof. This charge is not in the usual nor proper form, but we would not deem the error therein sufficiently material to call for a reversal of this case.

The ninth assignment of error complains of the action of the court in refusing to allow appellant to testify as to the decreased value of his property, by reason of the acts of appellees. The objection to this testimony was that it was the opinion of the witness. Value is always a matter of opinion. Of course, one giving such opinion must show himself in position to do so. No such objection as this, however, was made, for which reason we sustain said assignment.

Appellant offered to prove what J. D. Hunnicutt, Jr., one of the defendants, told the contractor with reference to not allowing his material to stay on the ground until night. In sustaining objection to this testimony the court said: “He (the witness) can’t say what Mr.' Hunnicutt told him.” Of course, this evidence was permissible, and the tenth assignment, complaining of the action of the court in this matter, is sustained.

The eleventh assignment, which complains of the testimony of J. M. Hunnicutt, one of the appellees as to the character of another house owned by appellant in another part of the town, is sustained, for the reason that such testimony was irrelevant, immaterial, and prejudicial. Appellant testified, without contradiction, that he told appellees that he would not rent the house to any one who was objectionable to them.

When E. P. Gill, one of appellees, was on the stand he was asked the following question: “Did you and Mr. Hunnicutt forbid Dalton (the contractor) to build a house for Aaron Day? Did you and Jim Hunnicutt forbid Dalton to put that house up?” Appel-lees objected because the question was leading, and the objection was sustained. That the defendant in a case, on cross-examination, cannot be asked a leading question is something “new under the sun.” The twelfth assignment, complaining of the action of the court in this matter is sustained.

The thirteenth assignment of error, with reference to the testimony offered to show the decreased value of the lot by reason of the conduct of appellees, is also sustained.

We do not recall of ever having seen a record so full of errors as is this one.

The judgment of the trial court is reversed, and the cause remanded for a new trial in accordance with this opinion.

Reversed and remanded.


author: KEY, C. J.

text:
    LOW v. TROY LAUNDRY MACHINERY CO., Limited, et al.

    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.
    On Motion for Rehearing, Oct. 15, 1913.)
    1. Landloed and Tenant (§ 248) — Rent— Peioeity op Liens.
    Rev. Civ. St. 1911, art. 5490, providing that all persons leasing or renting any building shall have a preference lien upon the property of the tenant, but that the lien shall not continue for a longer period than the current contract year, embracing a period of 12 months, whether it be in the first or any other year of such contract, divides a lease contract for a series of years into a series of yearly contracts, so far as the landlord’s lien is concerned, and, where one who sold machinery to a tenant, reserving the title as security for the price, failed to record the contract as required by statute until after the landlord’s lien had attached, but recorded it prior to the commencement of the second year of the lease, its lien was superior to the landlord’s lien for the rent for the second year.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1003-1008, 1010-1012, 1017 ; Dec. Dig. § 248.]
    2. Landlord and Tenant (§ 248) — Rent— Peioeity op Liens.
    Under Rev. Civ. St. 1911, art. 5490, giving lessors a preference lien upon the property of the lessee in the leased building for the payment of the rent, and article 5654, providing that all reservations of title to, or property in, chattels as security for the price shall be held to be chattel mortgages, and, when possession is delivered to the vendee, shall be void as to creditors unless in writing and registered as required of chattel mortgages, a landlord whose lien for rent attached prior to the registration of a contract of conditional sale was a creditor within article 5654, and his lien was therefore prior to the conditional vendor’s lien.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1003-1008, 1010-1012, 1017; Dec. Dig. § 248.]
    Appeal from District Court, Brown County ; John W. Goodwin, Judge.
    Action by the Troy Laundry Machinery Company, Limited, against R. M. Low and others. From a judgment in favor of plaintiff, the defendant named appeals.
    Affirmed.
    Wilkinson & Baugh, of Brownwood, for appellant. Miller & Lee, of Brownwood, for appellee.

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

       Writ of error denied by Supreme Court.

   KEY, C. J.

We copy from appellant’s brief the following substantially correct statement of the nature and result of the suit:

This suit was brought August 14, 1912, by the Troy Laundry Machinery Company, Limited, of Chicago, Ill., against J. R. Richie to recover the amount of 15 promissory notes, of date August 26, 1911, executed by him and payable to its order — one for $50, four for $75 each, and ten for $100 each, bearing 6 per cent, interest per annum from date, and containing the usual provision for payment of 10 per cent, additional as attorney’s fees, in the event of suit — and also to recover the further sum of $285.18, due upon open account. The note first maturing fell due December 26, 1911, and one each month thereafter for 14 successive months. These notes, together with three others for $50 each, maturing September, October, and November, 1911, respectively, and already paid, were given in part payment of, and said open account was also due for, certain laundry machinery, fittings, fixtures, and appliances sold by the plaintiff to J. R. Richie, and their payment was attempted to be secured by a chattel mortgage on said property executed and delivered by J. R. Richie September 1, 1911, and registered September 10,1911. The plaintiff sought a foreclosure of this mortgage against J. R. Richie, and also against the defendants W. J. Williams, Walter Ford, and R. M. Low, who were alleged to be asserting some character of title, claim, or lien against the property.

On November 22, 1912, defendant R. M. Low filed his answer and cross-bill, alleging, among other things, that on July 13, 1911, he was the owner of a two-story building situated on. lot No. 705, in block No. 31, of the city of Brownwood; that about that date he leased said building to J. R. Richie for the term of three years, beginning August 1, 1911, for $1,800, payable $50 on the first of each month; that J. R. Richie rented said building for the purpose of conducting a laundry therein, and, pursuant to such purpose, on the 1st or 2d day of September, 1911, moved the above-mentioned machinery, fittings, fixtures, etc., into said building, and proceeded to operate said laundry; that J. R. Richie paid the stipulated rent from the month of August, 1911, inclusive, to the month of March, 1912, inclusive, but failed to pay for the months of April, May,. June, and July,’ 1912; that, having continued under said lease contract to hold, occupy, and use the premises after the expiration of the first year of said lease, and during a part of the second year, that is to say, during the months of August, September, October, and November, 1912, he became liable for the rent on said building for the whole of said second year, that is to say, from August, 1912, inclusive, to July, 1913, inclusive; and that he, defendant, became entitled to and had a preference lien upon said machinery, fittings, fixtures, etc., for the security of the payment of all of said rent. Said defendant asked for judgment for the sum of $800, with 6 per cent, interest upon the monthly installments thereof, as the same became due; that his landlord’s lien be foreclosed against his co-defendants and plaintiff, as a lien and claim superior to any asserted by them; and that said property be decreed to be sold to satisfy said debt of $800, interest, and costs of suit.

No answers were filed by the other defendants. The plaintiff, by supplemental answer filed December 27, 1912, pleaded, among other things, that no landlord’s lien attached to said property in favor of defendant R. M. Low, because J. R. Richie was not the owner of said property, in that by the terms of the contract between it and him, at the time said machinery, fittings, fixtures, etc., were ordered, no title was to vest in him to same till he should have paid the full purchase price thereof.

A trial to the court resulted in a judgment on December 27, 1912, in favor of defendant R. M. Low, against defendant J. R. Richie, for $207.30, being the amount of rents due, with interest accrued thereon, for April, May, June, and July, 1912, and for $600 additional, besides costs of suit, being the amount of rents due, and to become due, for the whole of the second year of said lease contract; and also in a judgment in favor of plaintiff against J. R. Richie on said notes and account for $1,895, with interest at the rate of 6 per cent, per annum, and costs of suit. Plaintiff’s chattel mortgage lien and the landlord’s lien of defendant R. M. Low were foreclosed, said property directed to be sold, and the proceeds of said sale applied in satisfaction of the amounts adjudged in their favor, in the following order, viz.: First, in payment of R. M. Low’s judgment for $207.30; second, in payment of the whole of plaintiff’s judgment for $1,895, with interest and costs; and, third, in payment, so far as balance would do so, of R. M. Low’s judgment for $600, and costs.

Ail further facts necessary to a full understanding of the case will be found in the court’s findings and conclusions hereinafter set out in full. The motion of defendant R. M. Low for a new trial, filed December 28, 1912, and that of plaintiff, filed January 3, 1913, were overruled February 1, 1913, to which action of the court both of said parties excepted, and gave notice of appeal, and the case is here upon appeal perfected by said defendant.

The case is appealed upon the trial court's findings of fact and conclusions of law, which are as follows:

“(1) That on July 11,1911, J. R. Richie ordered of plaintiff the following laundry machinery, to wit: Two 36x54 No. 11 washers with partition, galvanized, trimmed, and single-geared; one 32x30 No. 2 washer, galvanized, trimmed; one 26" extractor, angle countershaft; one 2-ehest addition ironer; one cabinet drying room; one dip-wheel stareher; one 25-gallon starch cooker; one No. 11, 18" combined ironer; one No. 5, 4½ shoe-band ironer; one 32" single-treadle reverse shoe ironer, body; one No. 24' show-shaper; one No. 3 root blower; one 8 horse power O, horizontal engine (O. & S.); one 30 horse power boiler (O. & S.); one gravity steam dampener, with all necessary fittings and connections for installation. That said order was in writing, and, among other things, contained the following stipulations and conditions, to wit: ‘That all of the machinery ordered shall remain the property of the seller (plaintiff) until the purchase price thereof has been fully paid in cash, and, in case of any default in the payment of any part of the purchase price, the seller may enter upon the premises of the purchaser, and retake possession of such machinery. That all deferred payments for the machinery ordered shall be evidenced by notes of the purchaser, secured by a mortgage upon such machinery to be delivered to the seller at the time of the delivery of the machinery to the purchaser.’
“(2) That on the 26th day of August, 1911, the property described in the first finding of fact was shipped from Chicago to Brown-wood, to the order of plaintiff, and at the same time plaintiff prepared the notes and mortgage described in plaintiff’s petition in this cause, and indorsed the bill of lading, and forwarded the bill of lading, together with said notes and mortgage, and draft for cash payment to Ford Bros. & Co., bankers, at Brownwood, Texas, with instructions to them to have said Richie execute the notes and mortgage, and to file the same in the county clerk’s office of Brown county, Texas, and to deliver the bill of lading to Richie upon the execution of said papers. That on the 1st day of September, 1911, the bill of lading having been delivered by Ford Bros. & Co. to Richie, he received from the railway company at Brownwood, Texas, the machinery described in the first finding of fact, and immediately placed it in the building of R. M. Low, situated on Center avenue, Brown-wood, Texas, being the building described in the lease contract of the defendant Low, where said property has ever since continued.
“(3) That Ford Bros. & Co., immediately after the execution of the notes and mortgage by Richie, which was September 1, 1911, returned the same to plaintiff at Chicago, Ill., not having filed the mortgage with the county clerk of Brown county, as directed. That plaintiff, on receipt of the mortgage in Chicago, immediately returned the same, and had the same filed in the county clerk’s office at Brownwood, Texas, on September 10, 1911.
“(4) That the notes sued upon and described in plaintiff’s petition, and executed by defendant Richie, are due and unpaid, having become due by reason of the provision contained in the mortgage, which matured all the notes upon failure to pay any one of them. That said notes contain the usual 10 per cent, ‘attorney’s fee clause, and were placed in the hands of attorneys for plaintiff under the contract with them that they should have the 10 per cent, therein provided for as attorney’s fees.
“(5) That the mortgage aforesaid also contained a provision that it should also stand as security for any further indebtedness on the part of Richie to plaintiff, and that after the execution of said mortgage the Model Laundry Company, under which name the said Richie conducted said business, became indebted to plaintiff by open account in the sum of $285.18, as alleged in plaintiff’s petition, and that said indebtedness is past due and unpaid, and is secured by the mortgage, as alleged in plaintiff’s petition.
“(6) That on or about July 13, 1911, defendant R. M. Low entered into a written lease contract with the defendant Richie, whereby he leased to the said Richie for a term of three years, beginning August 1, 1911, the two-story stone building, situated on the southeast side of Center avenue, Brownwood, Brown county, Texas, being street No. 304, lot 75, block 31, city of Brownwood, for the sum of $1,800, which Richie was to pay at the rate of $50 per month, beginning on the 1st day of August, 1911.
“(7) That on or about August 1, 1911, Richie paid to R. M. Low $50, being rent for the month of August, 1911, and took possession of the rented building.
“(8) That all rent on building was paid R. M. Low up to and including the month of March, 1912, monthly, as it accrued.
“(9) That the rental contract between Low and Richie was never filed for record, and plaintiff had no actual notice or knowledge of the rental contract between Low and Richie.
“Conclusions of Law.
“(1) That, while the mortgage given by Richie to plaintiff was a purchase money mortgage, and was executed and delivered to plaintiff by Richie before the delivery of the machinery, yet, plaintiff having failed to have the same forthwith filed for registration in Brown county, Texas, as required by law, and the machinery upon which said mortgage was. given having been placed in the leased building prior to the recording or filing of said mortgage, the lien of R. M. Low, as landlord, attached thereto, and is entitled to priority over the mortgage of the plaintiff for the rent due and to become due for the current year, beginning August 1, 1911.
“(2) That under the law the landlord’s lien under the lease contract in question only existed for the current year, beginning August 1,1911, and, plaintiff having filed its mortgage, as required by law, September 10,1911, at the expiration of the first rental contract year -the lien created by the mortgage attached, and took precedence over the landlord’s lien for any rent accruing after the first rental contract year.
“I therefore find for plaintiff for the debt sued for against .Richie, and foreclose its mortgage on the property described in said mortgage, but subject to the lien of R. M. Low, as landlord, for the balance due him as rents on the rental contract year, beginning August 1, 1911.
“I find for defendant R. M. Low the sum of $200, with interest from date same was due, the balance of rent due for the first rental contract year, and foreclose his lien for said sum, giving it priority over the mortgage lien of plaintiff. I also find for defendant Low against defendant Richie the sum of $600, being rent due for the second contract rental year, and establish his landlord’s lien against the property described in his cross-bill, and foreclose the same, subject, however, to plaintiff’s lien hereinbefore foreclosed. I also find that said liens should be foreclosed both as to plaintiff and defendant Low as against all other parties in this suit named in plaintiff’s petition and defendant Low’s cross-bill.”

Opinion.

1. Appellant Low urges the contention that his statutory landlord’s lien against Richie is superior to the laundry company’s mortgage lien, not only for the rent owing for the first year of the lease, but for the $600 owing as rents for the second year, and bases that contention upon article 5490 of the Revised Statutes of 1911, which reads as follows: “All persons leasing or renting any residence, storehouse or other building, shall have a preference lien upon all the property of the tenant in such residence, storehouse or other building, for the payment of the rents due and that may become due; provided, tlie lien for rents to' become due shall not continue or be enforced for a longer period than the current contract year, it being intended by the term ‘current contract year,’ to embrace a period of twelve months, reckoning from the beginning of the lease or rental contract, whether the same be in the first or any other year of such lease or rental contract. Such lien shall continue and be in force so long as the tenant shall occupy the rented premises, and for one month thereafter,” etc. As originally enacted this statute did not contain the proviso, and was held to give the landlord a lien for all rent due and to become due for the entire term of the lease. This court construed the proviso which was subsequently added to the statute in the case of Allen v. Brunner, 83 Tex. Civ. App. 128, 75 S. W. 821, where Mr. Justice Streetman, speaking for the court, used this language: “The other contention of appellant is that, because the current contract year ended on May 1, 1902, and the attachment was levied on February 22, 1902, the landlord could not assert a lien for any time after May 1, 1902, and, as all rent was paid to that time, judgment should have, been rendered for appellant. Appellant relies upon article 3251 of the Revised Statutes to support this view. As we understand, the effect of this article is to prevent a landlord from ever asserting a claim for more than one year’s rent to become due in the future; that is, ho matter how many years may be covered by the rental contract, the lien can only be enforced for a period up to the end of the current contract year. It does not prevent the making of a lease for more than one year; but it divides-such a contract, so far as the lien is concerned, into a series of yearly contracts, and, when the tenant has occupied the premises for any part of any of said series of years, the landlord has a lien for the balance of such year.” That case, however, did not involve any question of priority of liens; but we think it correctly construes the proviso as dividing a lease contract for a series of years into a series of yearly contracts, in so far as the landlord’s lien is concerned, and, such being the case, and as the laundry company’s mortgage was recorded prior to the commencement of the second year of the contract, that company was, as to appellant’s statutory lien for that year, a prior creditor within the purview of article 5654 of the Revised Statutes of 1911, and therefore the trial court ruled correctly in holding that appellant’s lien for the rent for the second year was subordinate to the laundry company’s mortgage lien.

2. The Troy Laundry Machinery Company has filed cross-assignments of error, and under those assignments presents and urges the contention that appellant Low was not a creditor within the purview of article 5654, and therefore that his lien for the first year’s rent was not entitled to priority, Counsel for appellant, quoting from decisions which undertake to define a creditor within the purview of the statute, make a plausible argument in support of the proposition that appellant Low is not, within the spirit and reason of the statute, a creditor. The statute declares that a landlord shall have a preference lien, and in Furniture Co. v. Hotel Co., 81 Tex. 135, 16 S. W. 807, that statute is construed, and it is there expressly declared that a landlord’s lien which has attached prior to the registration of a mortgage is superior to the mortgage lien, and that a landlord having such a lien is a creditor within the purview of the statute which protects creditors against unrecorded contract liens. In the opinion the question is discussed with considerable elaboration, and, although that question may have been unnecessary to a decision of the case, and the opinion upon that subject may have, in the main, been dicta, we are not prepared to hold that it is not sound, and, as it has not, in so. far as we are aware, been heretofore questioned, and has been followed in other cases, we accept its doctrine as correct, and overrule the cross-assignments under consideration. Rogers v. Grigg, 29 S. W. 654; Austin v. Welch, 31 Tex. Civ. App. 526, 72 S. W. 881; Manufacturing Co. v. Lewis, 75 S. W. 47.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

The questions presented in the motion for rehearing have been reconsidered, but we find no reason for not adhering to the rulings heretofore made. We correct the statement in our former opinion to the effect that the ease of Allen v. Brunner, 33 Tex. Civ. App. 128, 75 S. W. 821, did not involve any question of priority of liens. The thought intended to be expressed was that, while each party asserted a lien, the appellant did not controvert the fact that a landlord’s lien was superior to an attachment lien, but contended that the landlord in that case had no lien.

Motion overruled.