author: BROOKE, J. PER CURIAM. DAVIS, J.

text:
    LEWIS v. BENNETTE.
    (No. 150.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1916.
    On Motion for Rehearing, March 28, 1917.)
    1. Loos and Logging <&wkey;2 — Sages of Timber — Later Conveyance of Fee — Construction.
    The owner in fee for a consideration of $10,-500 sold all of the pine timber of a certain size to T. who was to have six years in which to remove the same, and if not removed within that time to “revert to us.” Later the owner conveyed the fee to B. for a consideration of $3,976, save and except all the pine timber heretofore sold and conveyed to T. “as appears from our certain deed.” etc. T. defaulted in his contract, and the timber was not removed within six years. Held, that title to timber on default of T. reverted to original owner, and did not revert to B. at end of six years.
    [Ed. Note. — For other eases, see Logs and Logging, Cent. Dig. §§ 1-5.]
    2. Evidence &wkey;j461(3) — Parol Evidence to Vary Deed — Admissibility.
    Where the description in a deed is definite and certain, parol evidence that other land than that described was intended to be conveyed ia not admissible in trespass to try title.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2131.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Sr., Judge.
    Action by J. O. H. Bennette against J. W. Lewis, trustee, and others. Judgment for plaintiff against defendant named, and he appeals.
    Reversed and rendered.
    John W. Lewis and G. P. Dougherty, both of Houston, and W. N. Foster, of Conroe, for appellant. Howard Bennette and A. L. Kay-ser, both of Conroe, for appellee.
   BROOKE, J.

This is a suit brought by J. O. I-I. Bennette, appellee, against J. W. Lewis, trustee of the bankrupt estate of Banks Griffith & Son, and against Banks Griffith and M. E. Griffith, composing the firm of Banks Griffith & Son, O. N. Puckett, and Jesse Pitts; plaintiff alleging ownership of a certain 1,-136 acres of land out of the W. S. Allen survey in Montgomery county, Tex., and the timber on same, by reason of the purchase of same from Banks Griffith & Son on the 26th day of July, 1907, and for the further purpose of canceling a contract of extension made between plaintiff, Bennette, and Banks Griffith and M. E. Griffith, made before they were adjudged bankrupts, extending the time for cutting the timber on the land, and to enjoin the defendant John W. Lewis, trustee, from cutting the timber on the land. A temporary writ of injunction was granted, and later the trial court sustained a plea to the jurisdiction of the court to issue the injunction, and dismissed the suit, and from the order dismissing the suit the plaintiff appealed to the Court of Civil Appeals, and the judgment of dismissal was reversed, the jurisdiction of the trial court to enjoin the trustee in bankruptcy being sustained, and the cause was remanded. The case was tried on its merits on January 8, 1916, and the court peremptorily instructed a verdict in favor of the plaintiff and against defendant John W. Lewis, trustee, on his cross-action, and dismissed the suit as to all other defendants, and on this verdict the judgment adjudging the title to the timber upon the 1,136 acres of land to be in the plaintiff, Bennette, canceling the extension of the contract and perpetually enjoining the defendant John W. Lewis from cutting and removing the timber on the 1,136 acres of land was entered, and further adjudging that the defendant John W. Lewis take nothing by his cross-action asserting title to the timber on the 1,136 acres of land against the plaintiff, Bennette, and seeking to recover the value of the timber removed from the land by the plaintiff. Appellant perfected his appeal to this court, and assigns errors.

It seems from the statement of facts in this case that Banks Griffith & Son, a partnership composed of Banks Griffith and M. E. Griffith, acquired the fee-simple title to a tract of 1,130 acres of land in the W. S. Allen league in Montgomery county, Tex., by two deeds, one executed and delivered by Miss Martha G. Pond, for herself and as executrix of the estate of Mary P. Sill, bearing date May 7, 1907, containing a .61 undivided interest in said tract of land, and the second a deed from George G. Sill, bearing date November 1, 1906, conveying a .39 undivided interest in said tract of land, and by said two deeds, Banks Griffith & Son acquired title to the tract of land.

On the 30th day of May, 1907, Banks Griffith & Son, for a recited consideration of $10,-500, evidenced by a promissory note of even date therewith secured by vendor’s lien, executed and delivered to M. R. Talley the following conveyance:

‘The State of Texas, County of Montgomery:
“Know all men by these presents, that we, Banks Griffith & Son, a firm composed of Banks Griffith and M. H. Griffith, of Conroe, Montgomery county, Texas, for and in consideration of the sum of ten thousand five hundred ($10,-500.00) dollars to be paid to us by M. R. Talley, as evidenced by his twenty-one (21) promissory notes of even date herewith, each bearing interest from and after June 30, 1907, until paid, and providing for ten per cent. (10%) on principal and interest thereof as attorney’s fees if not paid when due and thereafter placed in the hands of an attorney for collection, have this day granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said M. R. Talley all of the pine timber ten (10) inches in dia. and larger than that size two feet above the ground, standing and growing on all of that certain tract, piece or parcel of land comprising eleven hundred thirty-six (1,136) acres, more or less, part of the W. S. Allen league, in Montgomery county, Texas, fully described in a deed from Miss Martha G. Pond to Banks Griffith & Son, bearing date May 7, 1907, and duly of record in volume 43, page 572, of the Deed Records of Montgomery county, Texas, to which deed and the record thereof reference is here had for a specific description of said land. The said M. R. Talley shall have six years from the date hereof in which to cut and remove said timber from said land, and all timber not so cut and removed from said land within said period of six years from the date hereof shall revert to us. The said M. R. Talley shall also have right of way free over said land for the purposes df cutting and removing said timber, and right of way free for wagon and tram-road across said land during said period of time for the purpose of reaching other timber owned by him, the said M. R. Talley, also free right of egress and ingress to and upon said 1,136 acres of land is hereby conveyed to the said M. R. Talley for the purpose of enabling him to cut and ^remove said timber during said period of six years. The said M. R. Talley shall also have free use of a sufficient amount of said land for the purpose of erecting, maintaining and operating his sawmill and all necessary adjuncts thereto, including lumber yards, dollyways, loading docks and tenement houses necessary in the operation of said mill during said period of six years, together with privilege of removing from said land all of his said improvements at any time within the six years and within six months after the expiration thereof.
“To have- and to hold all and singular said pine timber, together with all and singular the rights hereinbefore enumerated unto the said M. R. Talley, his heirs and assigns, for said full period of six years from date hereof. And we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the said timber, rights and privileges hereinbefore enumerated and for the time hereinbefore mentioned unto the said M. R. Talley, his heirs and assigns. It is expressly agreed and understood that the vendor’s lien is hereby retained against said timber, rights and privileges until all of said notes, together with all interest thereon, shall have been fully paid, according to their face, tenor and effect, when this deed shall become absolute.
“Witness our hands this 30th day of May, A. D. 1907. [Signed] Banks Griffith & Son.
“Banks Griffith.
“M. E. Griffith.
“The State of Texas, County of Montgomery:
“Before me the undersigned authority in and for the state of Texas, county of Montgomery, on this day personally appeared Banks Griffith and M. E. Griffith, who compose the firm of Banks Griffith & Son, and each of whom acknowledged to me that they had executed said instrument for all of the purposes and consideration therein expressed.
“Given under my hand and seal of office this 31st day of May, A. D. 1907.
“C. W. Nugent,
“[Seal] Notary Public, Montgomery County.”

On July 26, 1907, Banks Griffith & Son executed and delivered a deed conveying to the appellee, J. O. H. Bennette, the tract of 1,136 acres of land hereinbefore described, saving and excepting from the operation of said deed all the pine timber which was 10 inches in diameter and upwards upon said land, said deed being as follows:

“The State of Texas, County of Montgomery:
“Know all men by these presents, that we. Banks Griffith & Son, a firm composed of Banks Griffith and M. E. Griffith, of Conroe, Montgomery county, Texas, for and in consideration of the sum of three thousand nine hundred seventy-six and no/100 dollars to be paid to us by J. O. H. Bennette as evidenced by his two certain promissory notes of even date herewith, each for the sum of one thousand nine hundred eighty-eight and no/100 dollars, the first of said notes being due and payable on or before July 26, 1908, and the other of said notes being due and payable on or before July 26, 1909, each of said notes bearing interest from date at the rate of ten per cent, per annum until paid, each providing for ten per cent, on the principal and interest thereof, as attorney’s fees if not paid when due, and thereafter placed in the hands of an attorney for collection, and each of said notes'secured by vendor’s liens on the land hereinafter described, have this day bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey unto the said J. O. II. Bennette, of Conroe, Texas, all of the following described tract, piece or parcel of land, a part of the W. S. Allen league situated, lying and being in the county of Montgomery in the state of Texas, the land hereby conveyed being eleven hundred and thirty-six acres, more or less, fully described in a deed from Miss Martha G. Pond to said Banks Griffith & Son bearing date May 7, 1907, and recorded in volume 43, page 572 of the Deed Records of said Montgomery County, Texas, to which deed and the record thereof reference is here had for-further and more specific description of said 1,136 acres of land, save and except, however, from this conveyance, all the pine timber ten inches in diameter and larger than that size on all of said 1,136 acres of land, which pine timber we have heretofore sold and conveyed to M. R. Talley, and this conveyance is also made subject to certain rights and privileges in the way or right of ingress and egress upon said land and rights of way over and across the same, and certain leasehold on a part thereof for the erection of a sawmill, lumber yard and tenement houses and other improvements, to the said M. R. Talley, as all of which will fully appear from our certain deed and bill of sale to the said M. R. Talley, of date May 30, 1907, to which reference is here made for a full recital of all of said rights and reservations.
“To have and to hold all and singular said land, together with all and singular the rights and appurtenances thereunto in any wise belonging, unto the said J. O. H. Bennette, his heirs and assigns forever, subject to the foregoing reservations and limitations, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said land and premises, subject to the aforesaid reservations and limitations, against the lawful claims of all persons whomsoever lawfully claiming or to claim the same or any part thereof. It is expressly agreed and stipulated, however, that the vendor’s lien is hereby retained against all of said land _ until all of said notes shall have been fully paid according to their face, tenor and effect, when this deed shall become absolute.
“Witness our hands, at Conroe, Texas, this 26th day of July, A. D. 1907.
“Banks Griffith & Son.
“Banks Griffith.
“M. E. Griffith.
“The State of Texas, County of Montgomery:
“Before me, the undersigned authority in and for Montgomery county, Texas, on this day came and personally appeared Banks Griffith and M. E. Griffith, who compose the firm of Banks Griffith & Son, and whose names are subscribed to the foregoing instrument, both of whom are to me well known to be the persons whose names are subscribed to said instrument, and they, and each of them, acknowledged to me that they had executed the same for all the purposes and consideration therein expressed.
“Given under my hand and seal of office at Conroe, Texas, this 26th day of July, A. D. 1907. Ben T. Laws,
“[Seal] Notary Public, Montgomery Co., Texas.’’

Talley failed to live up to the contract contained in his deed to convey the purchase of said timber and therefore Griffith & Son-recovered their title to the same.

After the expiration of the six-year time limit fixed in the timber deed from Banks Griffith & Son to M. R. Talley, Banks Griffith & Son, in October, 1913, procured from the appellee, Bennette, an agreement giving the said Banks Griffith & Son two years from May 1, 1913, in which to cut and remove the timber from the 1,136 acres of land herein-before described. On the 4th day of August, 1914, Banks Griffith & Son were adjudged bankrupts, and the defendant John W. Lewis was soon thereafter duly elected and qualified as trustee of the estate of the bankrupts, Banks Griffith & Son, and after he qualified he asserted title to the pine timber upon the said tract of $1,136 acres of land, as property of the estate of said bankrupts, as the six-year time limit in the deed from the bankrupts having expired several months before that time. The suit, as before stated, was brought by Bennette, asserting title to the pine timber on the 1,136-acre tract of land, to cancel the extension agreement made between plaintiff and Banks Griffith & Son before they were adjudged bankrupts, and to . enjoin Lewis, trustee, as above stated, from ■ cutting and removing the pine timber. Lewis trustee, filed a cross-action, asserting title to the pine timber, seeking to recover from ' plaintiff the value of timber cut and removed by the plaintiff. ,

It is the contention of plaintiff that he having acquired title to the land upon which the timber was standing, before the expiration of the time limit fixed in the timber. deed from Banks Griffith & Son to Talley, the reversion of the title to the timber inured to his benefit, and in fact reverted to him. The, following -agreement is found in the state- ■ ment of facts:

“In the above numbered and entitled cause the • parties make the following agreements for "observance in the trial of this suit:
“Eirst. On said trial all parties hereto may ■ read from the deed records of Montgomery county such muniments of title or other instruments -, that they may desire to introduce in evidence; it being intended hereby to waive the filing of certified copies and giving notice thereof, and to permit the reading of said records" and instru-. ments therefrom just as though they were the original instruments and the same had been filed and notice thereof given: Provided that no objection to the introductions of said instruments other than is hereby indicated shall be waived.
“Second. It is agreed that as to the land upon which the timber in controversy is, or was, situated that Banks Griffith & Son are common source of title, holding the same by virtue of two deeds as follows: (a) A deed from Miss Martha G. Pond individually and as executri-x" of Mary P. Sill, of date May 7, 1907, which is of record in volume 43, page 572 et seq. of the Deed Records of Montgomery county, (b) Deed from George G. Sill to Banks Griffith & Son, dated November 1, 1906, of record in the Deed Records of Montgomery county, vol. 41, p. 549 et seq., and also that the said Banks Griffith & Son, .by virtue of said deeds, acquired a good and marketable title to the lands described therein and to all timber standing and growing-thereon at the time of the delivery of said deeds;, including the timber in controversy in this suit.
“Third. Since the institution of this suit, and during the months of June and July, 1915, plaintiff J. O. H. Bennette, entered upon s,aid land described in said deeds above mentioned, and from that portion of same lying west of the public road, known as the Oonroe and. Willis road (being the graded road between said, two towns), and cut and converted into saw-' logs 660,320 feet of timber, log scale, and after cutting the same transported it to the tram, railroad of the Delta Land & Timber Company and sold the same to -said company, and said plaintiff also took up from the same land 95,-922 feet of timber, log scale (being logs that had been theretofore cut by defendant), and-transported the same to said tram railroad and sold the same to the Delta Land & Timber Company.
“Fourth. It is further agreed that the timber-herein above described sold by plaintiff to the Delta Land & Timber Company aforesaid is' timber that M. R. Talley or his assigns would, have had the right to cut under and by virtue of his deed from Banks Griffith & Son of date May 31, 1913, which deed is here referred to. for other and further .description; said timber, being embraced within that described in said, deed. By this- agreement, however, it is not' intended to say that Talley had, or would have, had, any such right to cut after the expiration of the period of time mentioned in said, deed, or that he did not have such right; that question being left open.”

Also the following agreement was made:

“First. It is agreed that the market value of the timber in controversy in this suit delivered at the tramroad of the Delta Land & Timber Company at the time and place of delivery as referred to in the third paragraph of the agreement hereto made between the parties hereto was and is five dollars per thousand feet, log scale; and that the market value of said timber as stumpage before the same was cut at the time mentioned in said third paragraph was and is two and 60/100 dollars per thousand feet, log scale.
“Second. It is further agreed that the market value of the timber in controversy — that is to say, the stumpage value before the same was cut during the period from November-, 1914, to May 31, 1915, was $1.50 per thousand feet, log scale.”

The extension agreement reads as follows:

“The .State of Texas, County of Montgomery:
“Know all men by these presents, that this agreement made and entered into by and between Banks Griffith & Son, a firm composed of Banks Griffith and Morrison Griffith, parties of the first part, and J. O. H. Bennette, party of the second part, witnesseth:
“That whereas, the parties of the first part were the owners of the pine timber ten inches in diameter and over, standing and growing on the hereinafter described land, with a time limit for the removal thereof, which said time limit has expired and thereby vested title thereto in the party of the second part, but it being the desire of the parties hereto to extend the time limit for the removal of said timber on that portion of the land hereinafter mentioned for two years from May 1, 1913:
“Therefore* in consideration of the premises, and the sum of one dollar to him in hand paid by the party of the first part the party of the second part hereby gives and grants to said first parties the right to enter upon and remove all pine timber- inches in diameter and over, for a period of two years from May 1, 1913, off of and from that portion of the tract of eleven hundred acres of land out of the Wm. S. Allen league in Montgomery county, Texas, lying west of the Willis and Conroe public road, said eleven hundred acres being the same purchased by second party from first parties, the portion thereof affected being that lying west of said public road. Title to all said timber not removed within said period shall revert and vest in second party. Right of ingress and egress over and upon said land, with privilege of placing thereon and right of removal therefrom all improvements necessary to cut, handle and remove said timber are hereby given.
“Witness our hands this the-day of October, 1913. [Signed] Banks Griffith.
“Morrison Griffith.
“J. O. H. Bennette.”

In the first and second assignments of error, complaint is made as follows:

“The trial court erred in giving as his general charge to the jury the following instruction: ‘Gentlemen of the jury: In this case you are instructed to find for the plaintiff setting aside and canceling the extension contract of date October • — -, 1913, signed by J. O. H. Bennette, and Banks Griffith and Morrison Griffith, as prayed for in plaintiff’s second amended petition, and you will also find for plaintiff for the title to the timber sued for. You will find against the defendant J. W. Lewis on his cross-action.’-
“Said charge was erroneous for the following reasons, to wit:
“(a) Because the undisputed evidence in this cause shows that defendant is entitled to recover on his cross-action the damages proved, it appearing from the deeds in evidence that plaintiff never acquired or had title to the timber for the value of which he (defendant) sues, and it further appearing that defendant had title thereto at the time plaintiff cut same. Said charge is erroneous because its effect is to give an improper construction of the deeds in evidence, especially the deed from Banks Griffith & Son to M. R. Talley, and the deed from Banks Griffith & Son to plaintiff, J. O. H. Bennette. The proper construction of said deeds shows that Griffith & Son never conveyed said timber, the value of which is in controversy on defend,ant’s cross-action to plaintiff, and never conveyed their reversionary interest and title which Griffith & Son had and retained at the time they conveyed said timber to M. R. Talley.
“(b) Because the instruments in evidence, to wit, the deeds referred to in the foregoing paragraph, together with the undisputed evidence that the timber, the value of which is in controversy, was embraced in the deed to Talley, show that said timber reverted to and became the property of Banks Griffith & Son and remained their property until their adjudication of bankruptcy, and thereupon passed to defendant, and defendant,_ therefore, had title to said timber at the time it was converted by plaintiff.
“(c) Because under the undisputed evidence in this case as referred to in the foregoing paragraphs, the cou'rt should peremptorily instruct the jury to find for defendant on his cross-action and submit for their consideration only the question as to whether the damages suffered by defendant should be the value of the timber as stumpage, and on the ground where found by plaintiff, or the value at the time of sale and delivery to the Delta Land & Timber Company.
“All of said objections were urged to the charge complained of before the court read the same to the jury, all of which is shown by defendant’s bill of exceptions No. 2, which is here referred to and made a part hereof.”
“The court erred in failing and refusing to give this defendant’s special charge to the jury, which said special charge is in words and figures as follows, to wit: ‘Gentlemen of the jury: At the request of the defendant you are charged as a matter of law in this case that defendant is entitled to recover on his cross-action against plaintiff, and the only question for your consideration is the. extent of damage suffered by defendant.’ Said charge was duly submitted to the court before the court had read his general charge to the jury, and was refused, all of which is shown by defendant’s bill of exception No. 1, here now referred to and made a part hereof.”

The assignment must be sustained. It seems to be agreed by the parties to this suit that under the terms of the timber deed from Griffith & Son to Talley, May 30, 1907, the title to the timber reverted. The controversy is, to whom did the title revert, it being the contention of appellant that the title to the timber reverted to the grantors in the deed, as provided therein, and that upon the adjudication of said grantors as bankrupts, the title to the timber passed to and vested in the trustee of the estate of said bankrupts, who is the appellant. It is contended, on the other hand, that it was the intention of the parties to the timber deed to Talley that the title to the timber, at the expiration of six years, should revert to and vest in the party who might happen to own the land at that time; or, in other words, to the vendee of the grantors in the deed to the land.

It is therefore necessary, in the adjudication of this case, to pass upon and construe the timber deed from Griffith & Son to Talley, and the deed to the land from Griffith & Son to Bennette. The way we view these two instruments, they are free from ambiguity, and are to be construed as meaning what the words ordinarily import. Griffith & Son did not undertake to convey anything to Ben-nette except the fee-simple title to the land. They did not convey any timber growing upon the said land except that which was less than ten inches in diameter. The balance of the timber then growing upon the said land had been previously conveyed, for a consideration greater than the consideration paid for the land itself, to another and different party. The language of the timber deed says that if the same is not cut and removed within six years, that the title to the same shall revert to the grantors. The fact that Griffith & Son were adjudged bankrupts would not in any way alter the situation. All their rights passed to and vested in the trustee in bankruptcy. At the end of the time limit mentioned in the deed to the timber, to wit, six years, Griffith & Son and Bennette, the plaintiff, extended, by further agreement, the time in which to cut the timber, two years. This was entirely unnecessary, as the title to the timber was already vested in them, the Griffiths. There is now pending in our Supreme Court a case appealed from this court (Chapman v. Dearman, 181 S. W. 808); to be more correct, the case was certified by this court to the Supreme Court, this court holding that a deed conveying the timber in an ordinary form of warranty deed conveyed the absolute fee-simple title to the timber described, and the title thus passing in fee simple, the owner of the land could not compel the owner of the timber to remove the same from the land. Upon the final decision of this case rest many cases of like character, in which a time limit was set out in the deeds.

This court, in the case of McFaddin v. Johnson, 180 S. W. 806, said:

“It has been held that, where the description in a deed is definite and certain, parol evidence that other land than that described was intended to be conveyed is not admissible in trespass to try title; it being only in a suit to correct a deed on the ground of fraud or mistake that its terms can be so varied or contradicted.”

There can be no uncertainty in either the timber deed from Griffith & Son to Talley or in the deed to the land from Griffith & Son to Bennette. Griffith & Son sold the land to Ben-nette for perhaps about one-third the consideration that they sold the timber to Talley. It is apparent, therefore, that the timber growing upon the land was much more valuable than the land itself. Bennette never had any title to the timber, because the instrument itself under which he claims especially excepted the timber from the operation of the instrument. The fact that Talley did not pay for the timbér, and the title passed back into the hands of Griffith & Son, left the parties where they began. The title to the timber reverted to Griffith & Son, where it now remains. The timber, therefore, being the property of Griffith & Son, they being bankrupts, the trustee, Lewis, has been in lawful possession of the same, and the timber, from ten inches and upward, has been cut and removed, in defiance of appellant’s rights. It would be a useless consumption of time for this court to go into a more extended discussion of the effect of the timber deed and the deed to the fee-simple title to the land. Therefore it is unnecessary to decide any question in this controversy, save and except to construe the two conveyances in question. It was error for the court to render judgment for appellee, and to enjoin appellant from entering upon the land,and cutting the timber. Appellant was entitled to recover, on his cross-action, both the title to the timber standing on the land from ten inches and upward, and for the value of such timber cut and removed. The timber that had been cut and removed is shown to be of the value of $2.50 per thousand feet stumpage. By agreement it is shown that the plaintiff cut 756,-242 feet.

Therefore this cause is reversed, the injunction heretofore issued by the lower court is dissolved, and judgment is here rendered that the title and possession of said timber is in the appellant. Judgment is also rendered for appellant for $18,906 for timber shown to have been cut and removed.

Believing as we do, the cause is reversed, and judgment rendered for appellant.

On Motion for Rehearing.

PER CURIAM.

Rehearing denied.

DAVIS, J.

(dissenting). Having disagreed with the majority of the court in overruling appellee’s motion for rehearing, I dissent, as I believe the judgment of the lower court should be affirmed.

This cause was reversed and rendered by this court by opinion delivered December 11, 1916, and is again before us on appellee’s motion for rehearing, and, as stated above, a majority of the court has overruled same. The facts are recited at length in the opinion delivered, and need not be more fully dealt with here. The controversy between the parties to this suit can be made clear by a recital of the following facts: Banks Griffith & Son owned in fee a tract of timbered land in Montgomery county. On May 30, 1907, for a recited consideration of $10,500, they sold certain pine timber on this land to M. R. Talley, and gave him certain rights by a duly executed instrument, in this language:

“All of the pine timber ten inches in diameter and larger than that size two feet above the ground, standing and growing (on the described land). The said M. R. Talley shall have six years from the date hereof in which to cut and remove said timber from said land, and all timber not so cut and removed from said land within said period of six years from the date hereof shall revert to us.”

The grantee, Talley, is also given additional rights and privileges to enable him to cut and remove the timber within the time limit of six years specified. On July 26, 1907, Banks Griffith & Son sold the land to appel-lee, Bennette, giving to him their general warranty deed thereto. This deed, after describing the property conveyed, contains the language which forms the basis for this suit, viz.:

“Save and except, however, from this conveyance, all the pine timber ten inches in diameter and larger than that size on all of said 1,136 acres of land, which pine Umber we have heretofore sold and conveyed to M. R. Talley, and this conveyance is also made subject to certain rights and privileges in the way of right of ingress and egress upon said land and rights of way over and across the same, and certain leasehold on a part thereof for the erection of a sawmill, lumber yard and tenement houses and other improvements, to the said Talley, as all of which will fully appear from our certain deed and bill of sale to the said M. R. Talley of date May 30, 1907, to which reference is here made for a full recital of all of said rights and reservations.” (Italics ours.)

The timber described in the conveyance to M. R. Talley was not all cut from the land ■within the six years, and at the expiration of that period there remained on the land a portion thereof. The rights of Talley, under his agreement and purchase, were all forfeited, and he ceased to have any rights in the property at the expiration of the six-year period, and he is not, nor is any one under or through him, asserting any rights in any of the property in this suit. It is conceded that the timber standing on the land at the end of the six-year period reverted, as to the Talley contract, and the sole question involved in this appeal is, To whom did it revert? Who became the owner of this timber when the rights of Talley expired?

It is earnestly contended by appellant, who stands in the rights of Banks Griffith & Son, that in the deed to appellee, the timber described in the Talley deed was absolutely excepted and reserved by the grantors, and that this estate continued in them, and when the timber reverted under the Talley contract, it reverted to Banks Griffith & Son, and is now owned by their trustee in bankruptcy, appellant. Opposed to this, appel-lee contends that all the estate held by Banks Griffith & Son passed to him by their deed to him, and upon the conclusion of the rights of Talley, the full estate and ownership of the entire property was vested in him. The rights of the parties on this appeal are fully presented' by these opposing questions, and there are no collateral questions involved.

It- is true that after the conveyance to Talley and before the six-year period had expired, Banks Griffith & Son became subrogat-ed to' the rights of Talley, but no right is claimed on this appeal by appellant, because of or in any way connected with such abrogation, and it therefore has no relevancy to the case as presented here. It is also true that after the subrogation of Banks Griffith & Son to the rights of Talley, they obtained from appellee a contract extending the rights held by Talley for two years beyond the six-year period, but by the judgment of the trial court this contract was pronounced invalid, and that action of the trial court is not complained of or asked to be revised, and it is therefore not necessary or proper for us to consider on this appeal that instrument for any purpose.

In the opinion delivered in this case a majority of the court holds that the conveyances from Banks Griffith & Son to Talley and appellee were free from ambiguity, and I agree to that portion of the opinion. Being free from ambiguity, it is not necessary for me to discuss the extraneous matters that could be called in aid in construing them if they were in any way ambiguous. They will be construed as meaning what the words used therein ordinarily import, and given that effect Cravens v. White, 73 Tex. 577, 11 S. W. 543, 15 Am. St. Rep. 803. I need not resort to the rule of construction most favorable to the grantee. Cartwright v. Trueblood, 90 Tex. 530, 39 S. W. 930.

If in the deed from Banks Griffith & Son to appellee there is an express reservation of ‘the full title to the timber, such reservation ■would operate as a constructive severance of the timber from the land, and leave the title to the land in appellee, and the title to the timber in Banks Griffith & Son, subject to the rights of Talley in both. Lodwick Lbr. Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803; Chapman v. Dearman, 181 S. W. 808. If this is the correct interpretation of that deed, then, upon the reversion of the timber under the Talley holding it would remain with the estate in the timber :held in the deed by Banks Griffith & Son, and appellant would become the owner. Such, is the contention of appellant, and the court so held in its opinion delivered in this ease, and in this holding I believe they are in error.

When Banks Griffith & Son executed the conveyance to Talley, they were the owners 'of the full estate in the entire property dealt with, holding in fee. After that conveyance they remained the owners of the same estate, lessened only to the extent of the por-' tion passing to Talley. When they, sold to appellee, they sold all of their original hold-: ing, “save and except” that previously disposed of to Talley. This left them with no rights or estate in the property of any character. All incidents to the property, all appurtenances thereto, all rights therein, all-ownership thereof held by Banks Griffith &• Son passed by the deed to appellee. In fact. the full estate In all of the property passed by this deed, “save and except” that already passed to Talley. The language used in the deed cannot be construed to constitute a reservation of any estate in Banks Griffith & Son. There is no apparent attempt to reserve any portion of the estate to the grantors. The deed, by its plain language, limits the estate conveyed to that portion not before passed to Talley, but does not attempt to reserve anything to the grantors. The whole estate is conveyed, “together with all and singular the rights and appurtenances thereto in any wise belonging,” excepting only such portion thereof as had previously passed to Talley. This is the only limitation upon the conveyance to the entire property, and is not a reservation of any interest to the grantors, but an exception of an estate in the whole, of which the grantors at the time had no interest, and which, but for the exception and limitation, would place the grantors in the attitude of selling and warranting the title to property they did not own and which they had previously sold.

The reversionary interest in the timber was an incident to the ownership of the land, and was held by Banks Griffith & Son at the time they deeded the land to appellee, and could have been reserved to them and retained by them in that deed, but they make no such reservation, nor does any of the language employed in the deed indicate any such effort or intent. Being a part of the estate held by Banks Griffith & Son at the time of their conveyance to appellee, and not being reserved to them in that conveyance, and that conveyance passing the full estate in the property “save and except” the rights held by Talley, “together with all and .singular the rights and appurtenances thereto in any wise belonging,” it follows, necessarily, that when Talley forfeited his rights, they reverted to appellee, who held the balance of the estate, “with all and singular the rights and appurtenances thereto.” The right to the reversionary interest in the timber was a right belonging to the original fee-simple holder, and passed by the express language of the deed to appellants. Cartwright v. Trueblood, 90 Tex. 535, 39 S. W. 930; Arden v. Boone, 187 S. W. 997; Hancock v. Butler, 21 Tex. 804; Calder v. Davidson, 59 S. W. 300; Schaffer v. Heidenheimer, 43 Tex. Civ. App. 366, 96 S. W. 61; Id., 101 Tex. 658; McDaniel v. Puckett, 68 S. W. 1007.

It follows from what has been said that in my opinion the judgment of the trial court was correct, and that the majority opinion is in error in its holding in this ease. I therefore think that appellee’s motion for rehearing herein should be granted, and the judgment of this court reversing and rendering this cause should be set aside, and that the judgment of the trial court should be in all things affirmed.
      &wkey;}Fo«- otter casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexés


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    DAY v. WILLIAMS.
    (No. 8528.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 3, 1917.)
    1. Waters and Water Courses <&wkey;158%(2)— Contracts — Remedies—Decree—Language oe Stipulation.
    In suit to restrain defendant’s interference with an arrangement for pumping water on land conveyed to defendant by plaintiff, who reserved the right to use water, a decree awarding plaintiff the free use of the water in practically the language of the stipulation in his deed to defendant did not as matter of law award plaintiff any greater right than the stipulation would warrant
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 189.]
    2. Easements <&wkey;61(9) — Sufficiency oe Evidence — Use oe Road.
    In suit to enjoin interference with use of road by plaintiff, who had sold defendant the land, reserving the right to cross the land to have access to “the public roads,” evidence held insufficient to show that the stipulation was placed in the deed to insure to plaintiff the right to use the private road running west across defendant’s ranch, and formerly used as a convenient route of travel to a town.
    [Ed. 'Note. — For other cases, see Easements, Cent. Dig. § 143.]
    3. Evidence <&wkey;>76 — Presumption—Failure to Testify,
    A party’s failure to testify on- a point as to which he must have knowledge raises a strong presumption against him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 96.]
    4. Easements <&wkey;61(9) — Restraining Closing oe -Road — Burden oe Prooe.
    In suit by the vendor of a ranch to.enjoin the buyer from closing a road across it on the ground that the right to use it had been reserved to the vendor, the burden was on plaintiff to establish his allegation that as part consideration for the sale the buyer agreed to keep.the road open for travel by plaintiff and his tenants.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 143.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Suit by J. F. Williams against J. T. Day. From a decree for plaintiff, .defendant appeals.
    Reversed and rendered in part; affirmed in part.
    McMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, and C. M. Smithdeal, of Dallas, for appellee. .
   DUNKLIN, J.

J. F. Williams sold to J. T. Day a tract of land consisting of 1,165 acres, which at the time of the sale was a part of what is known as the Rhome ranch, the headquarters of which consisted of a well, and windmill in connection therewith, dwelling houses, . granaries, ■ and other improvements. The area of the entire ranch-was 2,563 acres, all of which was owned by Williams at the time of the sale. The tract sold to Day included what is known as the Smith county school land, and near its north boundary line the improvements constituting the headquarters of the ranch were situated. In making the sale Williams reserved certain houses which he moved just north of the north boundary of the tract that was sold to be used as dwelling houses for his tenants on the 'tract reserved by him, and in order to secure water from the headquarters ranch well the following stipulation was placed in the deed of conveyance to Day:

“That said Williams is also to have free use of the windmill and well located on the north side of said Smith county school land so long as he shall own the adjoining property now owned by him, and he on his part agrees to keep same in such repair as is necessary for the pumping of water to be used by him only for farm purposes.”

Adjoining the south boundary line of the track conveyed to Day was a public road running east and west known as the Rhome and Haslett road. Tire town of Rhome was a few miles in a northwesterly direction from the ranch headquarters. In order to reach this road occupants of headquarters of the ranch had used two private roads, one running from the headquarters in a southwesterly direction across pasture lands to a point where it connected with the public road mentioned, and the other running due south to the same public road; a gate being established in the south boundary fence at the terminus of each of said private roads. Another private road or passway had also been used in traveling to the town of Rhome. That road ran from the headquarters in practically a westerly direction until it left the ranch lands, through a gate, thence in a general northwesterly and irregular direction across lands owned by other persons, including one Mr. Davis, until it reached another public road, known as the Rhome and Justin road, the west end of which road led to the town of Rhome. By this route of travel the distance to Rhome from the headquarters ranch was three-fourths of a mile nearer than the route running from the headquarters southwest or south to the Rhome-Hasle'tt road, thence on to the town of Rhome.

The deed from Williams to Day also contained the following stipulations:

“(5) That said Williams, so long as he owns the land now owned by him, adjoining the lands herein conveyed by him to said Day, shall have the right for himself, his tenants and employés, to cross the lands herein conveyed by him to said Day in order to get and have access to the public roads. * * *
“(7) That said Day agrees to give and donate a strip of land 15 feet wide off the west side of the Smith county school lands herein conveyed for road purposes, and to remove the fence therefrom when necessary, or whenever requested to do so by said Williams, his heirs or assigns.”

This suit was instituted by Williams against Day for injunctive relief only. After alleging the sale, stipulations in the deed, and other facts recited above, the plaintiff further alleged that Day had breached the covenants contained in the deed for the free use by Williams of the well and windmill, and also the i covenant for a right in Williams for himself and his tenants to cross the lands conveyed to Day in order to reach the public roads.

In the petition plaintiff prayed for an injunction to restrain Day from in any manner preventing him from having the free use of water from the well for the benefit of his tenants, and also from closing the gates and openings through Day’s land on the said private ways of travel above mentioned.

The case was tried upon its merits by the court without the aid of a jury, and a .final decree was entered granting to plaintiff all the relief prayed for, except the right of travel over the road running southwest from the headquarters to the Rhome and Haslett road, from which judgment the defendant has prosecuted this appeal.

Appellant insists that the evidence was insufficient to sustain a finding by the trial judge that the defendant had wrongfully interfered with plaintiff’s free use of water from the well. He insists that the evidence conclusively shows that plaintiff breached his agreement to keep the windmill which pumped the water from the well in proper repair; that the defendant had been compelled to incur that expense himself; that plaintiff and his tenants had wrongfully so changed certain appliances in connection with the pump as to cause all the water from the well to be diverted into plaintiff’s troughs so long as he needed the same, to the exclusion of troughs owned by the defendant; and by reason of all of which it conclusively appeared that plaintiff was not entitled to the injunc-tive relief prayed for with respect to the use of said well.

After a careful examination of the evidence, we are of the opinion that it was sufficient to support findings by the court that the defendant had breached his obligation contained in the deed to allow plaintiff the free use of the well, and that plaintiff had not wrongfully changed any of the appliances for pumping, as charged by the defendant, and we cannot disturb those findings.

Appellant insists that the evidence conclusively shows that since the sale to him plaintiff has so changed the pumping appliances as to divert more of the water to his premises than he would be entitled to under the stipulation in the deed, and that the effect of the injunction granted would be to restrain the defendant from in any manner interfering with that arrangement and restoring such appliances to the condition which existed at the time of the sale. It is a sufficient answer to that contention to say that the portion of the decree that awards to the plaintiff the free use of water is in practically the very language of the stipulation contained in the deed, and hence it cannot be said as a matter of law that it awards to the plaintiff any greater right than that stipulation would warrant.

The decree with respect to the use by plaintiff of the private ways across Day’s land reads as follows:

“And it is further ordered that defendant, his agents and employes, be, and they are hereby, enjoined and prohibited so long as plaintiff shall own said lands from obstructing the gates and openings through his (Day’s) lands on the road leading south from the Rhome ranch to the Rhome and Haslett public road, and the road running west from the lands of plaintiff to and through the lands of-Davis, so as to prevent the passage of plaintiff, his agents and employés in charge of and occupying his said lands through said gates and openings along said roads. But it is ordered that this prohibition do not apply to the road leading from said ranch in a southwesterly direction from said ranch to the Rhome and Haslett road described in plaintiff’s petition.”

Appellant concedes the right to plaintiff to use the private road running from the ranch headquarters due south to the Rhome and Haslett public road, and the evidence shows conclusively that plaintiff and his tenants have never been denied the use of that road, with the exception of a period of a few hours during which time the gate leading into the public road by that route was closed by mistake. But appellant insists that there is no proper basis in the evidence for the injunction restraining him from closing the gates in his west boundary fence and thereby preventing plaintiff from using the private road formerty used, and running in a westerly direction across the ranch, and described above. We are of the opinion that this contention should be sustained. The stipulation in the deed that Williams should have the right for himself and tenants to cross plaintiff’s land in order to have access to “the public roads” is ambiguous, leaving the question of the understanding of the parties with respect to the meaning of such language to be determined by other evidence. The proof showed without contradiction that the private way running west across the ranch crosses the lafids of other persons after leaving the ranch before it reaches any public road; in other words, that in order for plaintiff to reach Rhome by that route, it would be necessary for him to get the consent of other landowners to cross their land before reaching the public road, and that that private way after leaving the ranch ran in a very irregular course along private ways of other, landowners to suit their convenience. The proof showed further that the private ways running south and southwest from the ranch headquarters to the Rhome-Haslett road were the ways of travel more commonly used by former occupants of the ranch than the private way running in a westerly direction; that after the sale to Day the gate across the west road where it passes out of the defendant’s land had on different occasions been left open, and by reason of which defendant’s cattle had escaped from the pasture in which they were confined and had thus caused defendant annoyance and labor to gather them up; that through the land which the plaintiff did not sell there was a private road leading from his tenant houses in a northerly direction about one mile to another public road running practically due west to the town of Rhome; but this route to Rhome from said tenant houses was nearly one mile farther than to travel the west private road across defendant’s land. The evidence further shows that the western boundary of the land purchased by the defendant was in an irregular shape, the southern portion of which extended much farther west than the northern portion, and that the private road across the land running in a westerly direction passed out of the land at the west boundary of the northern portion thereof, a point considerably farther east than the west boundary of the southern portion. While the evidence is not explicit upon the point, it is reasonably apparent, that it was within the contemplation of Williams at the time the sale was made that at some time in the future it might be desirable to have a road running from the Rhome-Haslett road north to connect with another public road running west to the town of Rhome, and for the purpose of accomplishing that end the stipulation was inserted in the deed binding Day to donate a strip of land 15 feet wide off the west side of the tract purchased by him for road purposes whenever requested so to do by Williams, his heirs or assigns; and it is apparent further that it was intended that that strip would be taken off the west boundary of the southern portion of the tract, and not off the entire western boundary.

But it does not appear that that stipulation was placed in the deed for the purpose of insuring to Williams the right to use the private road running west across the ranch and formerly used as a convenient route of travel to the town of Rhome.

Defendant, Day, testified with respect to the negotiations between him and Williams leading up to the sale. After testifying that they rode over the land together and discussed the terms of the trade, he further testified as follows with respect to the west road mentioned above:

“I told Williams when I was looking over the land to buy it that I would not give him 50 cents an acre for that land with the road running through it in any direction, but there was no road. The only public road was south when I bought the Rhome place. * * * As to the road across the Davis place, there was no road when I bought that place across there. Rhome never traveled that road, never had made any road there, never had when I bought this land. I told Williams I wouldn’t give 50 cents with the road through in any direction. That is the-reason I gave the road south to keep anybody from going through my pasture. Nothing was said about that southwest road across the pasture between Mr. Williams and myself.”

J. O. Terrell, the attorney who prepared the deed to Day, testified to the following conversation occurring in his office before ha-started to write the deed, Col. Rhome, plaintiff, Williams, and defendant, Day, all being, present:

“I asked them to detail the road, having in mind that he didn’t want it to go all over his place, and I think Col. Rhome’s remark was that they'would arrange the road he had used, or had been using for years on the ranch that ran down by the granary; X don’t know whether he said south or southwest, but the same road and some road that ran up east was mentioned. Mr. Williams spoke up and said, ‘Put it public roads,’ and they all agreed to it, and I wrote it just as it is written here (referring to the deed).”

The witness Martin, who was present at the time a preliminary contract embodying the same stipulation as was afterwards placed in the deed was written, testified as follows:

“I was present in Mr. Terrell’s office at Et. Worth when they were drawing up this contract and talking about it, but I don’t know that T was actually there when they signed it. I heard some talk about the roads. My recollec-(ion there was something said, something brought up there about the way Mr. Williams and Mr. Day should get in and out, or rather Mr. Williams should get in and out of the land on the north side that he was buying, and Mr. Day kind of objected to letting him go south, but he afterwards agreed, is my recollection. As far as I can remember now, they were talking about this road going southwest and the road going south, and Mr. Day said he would not agree to it going southwest or south either, but after-wards he went out and talked with Col. Rhome and came back and said he would let the road go south.”

Joe T. Wilkes testified that he was engaged in the real estate brokerage business during the year 1910-1911, at which time the Rhome ranch was listed with him for sale by Col. Rhome, who then owned it; that he entered into negotiations for the sale of it to plaintiff, Williams, showing it to Williams several times, and that a sale was finally made to Williams by Col. Rhome during April or May, 1912; that in showing the place to Williams he pointed out the west private road as well as the south and southwest roads, and also a road running east from the headquarters ranch to another public road. This testimony, of course, might have been pertinent to the issue as to what Williams understood at the time he bought the ranch from Col. Rhome, but it would have a very remote bearing, if any, upon the negotiations and understanding between Williams and Day at the time Williams sold a part of the ranch to Day.

The judgment recites that plaintiff, Williams, appeared upon the trial in person, as well as by his attorneys, and the statement of facts shows that he did not testify as a witness; neither is there any showing in the record of any excuse for his failing to testify. And his failure to testify raises a strong presumption that he, like Day,, understood that the private way running west from the ranch headquarters would not be left open by Day as a way of travel by Williams and his tenants. Day’s testimony to the effect that in the preliminary negotiations between him and Williams for the sale to Day by Williams of a part of the ranch it was understood between them that that road would not be left open was uncontradicted; on the contrary, it was corroborated in a measure by the testimony of Terrell and Martin referred to above.

The burden was upon the plaintiff to establish by proof his allegation that, as a part of the consideration for the sale, Day agreed to keep the west road open for travel to Rhome by plaintiff and his tenants; and, aside from the testimony referred to above of the witness Wilkes, which, as we have said already, amounts to practically no testimony at all to establish that fact, and aside from the stipulation in the deed for access “to public roads,” and the further stipulation of an agreement by Day to donate a strip 15 feet wide off the west boundary of his tract, counsel for appellee have cited no evidence tending in any manner to prove that allegation. At all events the testimony referred to of Day, Terrell, and Martin, strengthened by the presumption arising from the failure of Williams to testify at all upon that issue, conclusively rebuts any possible inference of the truth of the allegation in plaintiff’s petition that Day, as a part of the consideration of the sale to him, agreed to keep said roadway open. Mitchell v. Napier, 22 Tex. 120; Bailey v. Hicks, 16 Tex. 222; Miller v. Poulter, 189 S. W. 105, and other decisions therein cited.

For the reasons indicated, that portion of the decree of the trial court enjoining the defendant, Day, from closing the gates and openings through the land purchased by Day from plaintiff, Williams, on the road running west across those lands and through the land of - Davis is reversed, and with respect to that road judgment is here rendered denying Williams a right to use that road, but in all other respects the judgment of the trial court is affirmed.

Reversed and rendered in part; affirmed in part.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    BAUGH v. HOUSTON et al.
    (No. 5792.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.
    Rehearing Denied March 28, 1917.)
    1. Fraud <&wkey;50 — Burden of Proof — Confidential Relationship.
    In action against part owner of property by abandoned wife of the other owner for fraudulently obtaining the entire ownership, that defendant had ‘been her husband’s partner, and that she had trusted him regarding the property since her abandonment,# did not establish a fiduciary relationship, placing upon defendant the burden of proving his fairness.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47.]
    2. Fraud <&wkey;7 — Fraudulent Misrepresentations — Fiduciary Relation.
    In action against part owner of property by abandoned wife of other owner for fraudulently obtaining the entire ownership, where defendant ■had been her husband’s partner and she had trusted him regarding its management since her abandonment, his fraudulent misrepresentations regarding its value were actionable.
    S.Fraud <&wkey;43 — Pleading — Fraudulent Misrepresentations.
    In action against part owner of property by abandoned wife of the other owner for fraudulently obtaining the entire ownership, allegations that defendant stated sufficient money could not be borrowed to pay an outstanding mortgage and a forced sale would not pay it, but that such loan was secured after defendant obtained entire ownership, are insufficient.
    [Ed. Note. — For other eases, see Fraud, Cent. Dig. § 37.]
    4. Limitation op Actions <&wkey;28(l) — Dam- - ages por Fraud.
    ' A damage action for fraudulently obtaining real estate, ’being one for debt, is barred by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 143.]
    5. Limitation op Actions <&wkey;100(13) — Dis-covert op Fraud.
    In action against a part owner of property by wife of other owner, that plaintiff did not discover defendant’s fraudulent misrepresentations until within two years is insufficient to toll limitations, where many years before she knew facts which should have led to the discovery of any fraud.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 492.]
    6. Limitation op Actions @=100(1) — Computation-Discovert op' Fraud.
    In cases of fraud the statute of limitations begins running'when the fraud was discovered or, by reasonable diligence should have been discovered.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 480, 493.]
    7. Appeal and Error <@=843(2) — Necessitt op Decision.
    In action against part owner by abandoned wife of other owner for fraudulently securing the entire ownership, it is unnecessary to decide whether plaintiff wife could maintain the action, where her allegations are insufficient to establish fraud.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331.]
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    . Suit by W. Pauline Baugh against Samuel V. Houston and others. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    A. C. Bullitt and S. S. Searcy, both of San Antonio, for appellant. MeCraclien & Murray, of Floresville, and Boyle & Storey and J. L. Browne, all of San Antonio, for appel-lees.
   MOURSUND, J.

This suit was filed on May 21, 1912, in the Fifty-Seventh district court of Bexar county by Pauline Baugh against Samuel Houston, W. B. Murray and W. P. Baugh. Afterwards plaintiff filed a supplemental petition, suggesting that the name of one of the defendants was W. O. Murray, and was, by mistake, stated as W. B. Murray. The defendants Houston and Murray filed pleas of privilege. The judge ■of the Fifty-Seventh district court entered his disqualification to try the cause, and it was duly transferred to the district court of the Seventy-Third judicial district of Bexar county. The pleas of privilege were sustained, and the cause transferred to the district court of Wilson county.- The plaintiff then dismissed as to W. P. Baugh. A general demurrer and various special exceptions were sustained to the petition, and,, plaintiff declining to amend, the cause was dismissed.

Plaintiff alleged that on February 19, 1885, she was the wife of W. P. Baugh, who with defendant' Houston owned 10,200 acres of land in McMullen and Live Oak counties, and on said date they executed a mortgage-on said land to Jacob Haish to secure the payment of $15,000, payable February 19, 1898; that Houston owned one-third and Baugh two-thirds of the land; that Baugh’s interest in the land was community property of plaintiff and said Baugh; that they lived together until the early part of 1902," when Baugh abandoned plaintiff and left Texas, and has continuously remained out of the state; that in August, 1902, plaintiff entered into an agreement with defendant Houston that she would contribute $2,762.50 and Houston would contribute a like amount to-be paid on the $15,000 due Haish, provided Houston would secure an extension of the remaining $10,000 due Haish, payable February 19, 1903, or if Haish would not extend, that they would together borrow $10,000 on the land from some one else so they could retain it until it could be sold for a reasonable sum, and that Houston should have a half interest in the land; that thereupon she delivered to Houston the money to be paid by her; that Houston paid Haish $5,525, but Haish declined to extend the remainder beyond February 19, 1903, the next interest bearing period, and thereafter on the-day of December, 1902, Houston stated to-plaintiff that Haish declined to extend, and that it would be impossible to borrow the $10,000 upon the land from any one else. Plaintiff further alleged that Houston and her husband had been in partnership previous to December, 1902, and that after her husband abandoned her she left the control and renting of the land to Houston because-during such partnership he had completely won her confidence, and she believed all his statements to be 'true; that she was inexperienced in business matters, and believed absolutely all of Houston’s statements; that Houston knew her husband had abandoned her, had left Texas, and that she did not know where he was; that the land in Decem.ber, 1902, was of the reasonable value of $3 per acre, and thereafter it gradually, increased, and in 1905 was of the value of $5 per acre; that in the first part of January, 1903,. Houston represented to plaintiff that it would be impossible for them to borrow $10,-OOO upon the land, but if she would permit the land to be transferred to him! he would try and manage to save the same for himself; that if she did not do this the land would not sell for enough to pay the amount due thereon and she would not only lose the amount delivered to him to be paid in August, 1902, but there would be a judgment against herself and W. P. Baugh and against their community property for such amount of the $10,000 as would not be liquidated by the proceeds of the sale; that on July 24, 1902, W. P. Baugh had executed to B. E, Baugh, the son of plaintiff, a power of attorney, which authorized him' to sell any and all lands owned by W. P. Baugh in Texas; that Houston not only made the representations above stated, but in order to carry out his scheme to acquire title to the land, stated to B. E. Baugh that if he did not execute to Houston a contract to convey him the land, the same would not sell at forced sale for a sufficient amount to pay the Haish debt, and therefore there would be a judgment for the deficiency against Houston and the community estate of W. P. Baugh and plaintiff, and thereupon, without any objection from plaintiff, said B. E. Baugh, relying upon and believing the said statements of Houston, on January 12, 1903, executed a written contract, by which he obligated hinf-self and bound W. P. Baugh to sell and convey to Houston such land for $2,450, to be paid by Houston and the assumption by Houston of the balance due Haish; that thus said Houston, on January 12, 1903, secured absolute control of the land, which was then worth $30,600. She further alleged that on January 23, 1903, said B. E. Baugh, pursuant to the contract, and for the consideration as expressed in the deed of $10,000 paid by R. G. Tullos and W. O. Murray to Jacob Haish executed and delivered to W. O. Murray and R. G. Tullos a deed in the name of W. P. Baugh for the said land; that Tullos is dead, but that said Tullos and Murray were acquainted with all the facts alleged by her, and accepted the profits of the fraud of Houston, for plaintiff would show that on the —- day of February, 1903, Murray, Houston, and Tullos borrowed from Gus G. Groos $10,000 upon the land, although Houston had represented that it would be impossible to borrow such amount on the land. She further alleged that in September, 1905, Murray conveyed a half interest in the land to the Vaughan Humber Company for $4,000 cash and the assumption of the debt due Groos; that on November 16, 1905, Houston and the Vaughan Lumber Company conveyed said land to T. Okassaki for $61,212. Plaintiff again alleged her confidence in Houston; that he took advantage of her and secured control of the land “by his false representations to her and her son as herein alleged,” and soon after, in the year, 1905, realized the profits thereof as alleged by her, and if he had not done so and had carried out his original undertaking to get the Haish loan extended or borrow money with her to pay it, she would have realized not less than $25,500; that it was not until January, 1911, that she learned Houston had borrowed $10,000 from Groos on the land, and that Murray had sold a half interest to the Vaughan Lumber Company, and that the land had been sold to Okassaki; that she was not in possession of facts that would have put her upon knowledge of these facts, and did not discover the fraud that had been practiced on her by Houston until in January, 1911; that she was divorced from Baugh in February, 1910, but said decree did not in any way affect the community property of herself and Baugh; that upon her husband’s abandonment of her and concealment of his whereabouts from plaintiff she had the control of and could have disposed of the coni-munity property, and could have borrowed money thereon for the protection of the same, as was known to Houston and Murray; that she believed the representations made to her by said Houston to be true, and relied upon them, and that this was why it was that she permitted the said Houston to secure from her son, B. E. Baugh, a contract for the sale of said land and a deed through him to Murray and Tullos, otherwise she would not have done so. She further alleged that the proceeds of the land in so far as the community interest of herself and Baugh was concerned is necessary for the support of herself and her invalid daughter, May, and that she is entitled to recover one-fourth of the reasonable value of the land and to have the other one-fourth placed in trust for the support of her daughter, less the amount necessary to extinguish the lien and leSs $2,-450 received by her from Houston; for Baugh lias not, since 1902, contributed anything to the support of either herself or their daughter. She prayed for judgment against both defendants for $7,800, with interest from -day of January, 1903, for herself, and $10,000, with interest from the same date, to be placed in trust for the use of May Baugh, and for general relief.

The allegations do not show any such confidential or fiduciary relation between Houston and Mrs. Baugh Or between Houston and B. F. Baugh, attorney in fact for W. P. Baugh, as to place the burden upon Houston to show the fairness of the transactions between them pleaded by Mrs. Baugh. Goar v. Thompson, 19 Tex. Civ. App. 330, 47 S. W. 61; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 5S4; Id., 29 Tex. Civ. App. 619, 69 S. W. 183; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 992.

However, the allegations with reference to the relations of the parties, and the confidence reposed by Mrs. Baugh in Houston are sufficient, we think, to justify holding that an opinion as to the value of the land, if expressed by Houston to Mrs. Baugh would be actionable if false, just as if it had been the statement of a fact. It is held that if representations as to value are made by a person holding a position of trust or confidence, or by one party to a sale who assumes to have special knowledge of the value of the property, in regard to which value, the other, being known to be ignorant, trusts entirely to the good faith of the former, it is proper to consider such representations, in the same way that representations as to facts are treated. Newton v. Ganss, 7 Tex. Civ. App. 90, 26 S. W. 81; Riggins v. Trickey, 46 Tex. Civ. App. 574, 102 S. W. 918. We find this case, however, to be considerably different from the ordinary cases in which representations as to value are relied upon.

It is not alleged by plaintiff that Houston stated to her or B. F. Baugh what the land was worth, or that he concealed from her the value thereof, or that she and B. IP. Baugh did not know such value. She alleged that in December, 1902, it was of the reasonable value of $3 per acre, and that it gradually increased in value. She also alleged that Houston represented to her that it was impossible for them to borrow $10,000 on the land as they agreed to do, and that if the land was sold at forced sale, it would not sell for enough to pay the debt due thereon. These are the only representations charged to have been made. It is suggested that Houston should have told plaintiff that Groos would loan $10,000 on the land, hut there is no allegation that Houston knew such fact prior to his contract with B. F. Baugh, and such contract could not be invalidated by reason of Houston’s discovery of the fact, after making same, that Groos was willing to loan Houston, Murray, and Tullos $10,000 and take a deed of trust on the land. While it is alleged that Houston had the control of the land and rented it out, the petition discloses that he, like plaintiff, resided a long distance from said land, and while the impression sought to be conveyed is that he knew a great deal more about the value thereof than plaintiff, no allegation to the effect that he knew or misrepresented its value appears in the petition, unless it be deduced from the two representations above stated. In order to state that it was impossible for them to borrow $10,000 on the land, and that it would not bring enough at forced sale to pay Haish, Houston, of course, must have had an opinion as to the value of the land. To what extent this opinion as to value entered into the opinion that he and Mrs. Baugh could not borrow $10,000 on the land it is, of course impossible to say from the allegations, and the same applies to the opinion as to what the land would bring at forced sale. The financial standing, reputation for promptness in meeting obligations, and the difficulty of getting persons to contract with Mrs. Baugh, who claimed the right to do so because abandoned by her husband, all could enter into the first opinion, while the difficulty in getting persons to bid at forced sales was an element entering into the second opinion. It may be said that when a person states that the value of property is a certain sum, such statement carries with it a statement of fact that such actually is his opinion, and when it is shown that he could not have had such an opinion, he is convicted of making a false statement of fact. But when the opinion relates partially to matters not susceptible of definite ascertainment, it would be extremely difficult to prove that the opinion was not in fact held by the person expressing it. The fact that Houston might seek a loan from many parties and be refused, and that some one not interviewed might he willing to make it, shows upon what character of opinion fraud is sought to be predicated in this case. We believe that such opinions cannot be made the basis for an action of fraud, when not accompanied with allegations showing that Houston could not, in good faith, have entertained such opinions. That the statements made were false is not directly alleged in the petition, but it is alleged that Houston “by his false representations made to plaintiff and her son as herein alleged” secured control of the land, which at least as against a general demurrer, is sufficient. It seems, however, from the allegations referred to that falsity is only alleged by reason of the fact that Houston, Murray, and Tullos succeeded, in borrowing $10,000 on the land.

We believe the petition failed to show such representations as would support ab-action for fraud, but if it did, the judgment of the court was correct for the reason that the suit was barred by limitation. An exception, urging the statute of limitation of two years, was sustained, and plaintiff declined to amend. Plaintiff did not invoke any equitable remedy such as cancellation of contract and deed, but sued for damages for fraud. It is settled that such an action is one for debt, and the two-year statute of limitations applies thereto. Gordon v. Rhodes, 102 Tex. 300, 116 S. W. 40.

The suit was filed more than two years after Mrs. Baugh was divorced from her husband, but she seeks to escape the bar of the statute by alleging that she did not know until January, 1911, of the loan from Groos, the conveyance by Murray, and the sale to Okassaki. It was agreed in open court that in passing on the general demurrer and the special exceptions the following facts should be considered as pleaded by plaintiff, viz.: The deed of trust from Houston, Murray, and Tullos to E. B. Chandler, trustee, for Gus Groos was dated January 23, 1903, and recorded in Live Oak county on February 14, 1903, and in McMullen county on February 25, 1903; the deed from W. P. Baugh by B. F. Baugh as attorney in fact, also dated January 23, 1903, was recorded in Live Oak county on February 5, 1903, and in McMullen county' on February 13, 1903; the deed from Murray to Vaughan Lumber Company was recorded in Live Oak county on October 8, 1905, and in McMullen county on October 3, 1905 ; and the deed from Houston and Vaughan Lumber Company to Okas-saki, dated November 16, 1905, was recorded in Live Oak county on November 20, 1905, and in McMullen county on November 24, 1905.

Plaintiff relies upon the theory that by the statements made to her, or rather the one with regard to impossibility of borrowing $10,000 on the land, she was deceived with regard to the value of the same, and induced to permit the community interest therein to be contracted to be sold to Houston for $2,-450, paid her son as attorney in fact, and the assumption by Houston of the debt of $10,-000 due I-Taish, and induced to permit her son to convey the Baugh interest in said land on January 23, 1902, to Murray and Tullos, at the instance of Houston, in consideration of the payment by said parties of the debt due I-Iaish. She alleged that she permitted Houston to obtain these instruments from her son because she relied upon his representations. This conveyance vested in Murray and Tullos a two-thirds interest in the land, as the agreement under which Houston was to acquire half had not been complied with. She knew in person and by agent on January 23, 1903, that Murray and Tullos claimed to have paid $10,000 and accrued interest to I-Iaish for two-thirds of the land. This fact was sufficient to put her upon notice that the land was probably of sufficient value that $10,000 could be borrowed on it by some one, and, having been'thus put on notice if she had followed up the matter, she would have discovered the value of the land, which she alleges was about $30,000, and would have learned that the inability of herself and Houston to borrow $10,000 on it was not caused by lack of value, and if in fact Houston’s representations were sufficient to base an action upon, and were false, she would have learned of such falsity. Having thus been put upon notice, she would also, if she had followed up the matter, have discovered that the deed of trust to Groos was executed on the same day as the deed to Murray and Houston, and that Houston, Murray, and Tullos were able on that day to borrow $10,-000, giving such deed of trust to secure the loan. In cases of fraud the cause of action will be deemed to havé accrued when the fraud was discovered, or by the use of reasonable diligence could have been discovered, and limitation will be reckoned from that time. Kuhlman v. Baker, 50 Tex. 630; Bass v. James, 83 Tex. 110, 18 S. W. 336. In said case of Kuhlman v. Baker, the court said:

“Notwithstanding a general averment of the conclusion that the plaintiff could not by reasonable diligence have sooner discovered the fraud, if the facts stated show, on the contrary, that the failure to discover it sooner was the result of his own laches, then the petition fails to show that limitation only commenced to run from the time of such discovery.”

See, also, Powell v. March, 169 S. W. 936; Stanford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48.

If Mrs. Baugh ever had any cause of action, her petition fails to disclose any facts excusing her failure to bring suit within the statutory period after the divorce was granted.

In view of the fact that the judgment must be affirmed upon the ground above stated, we deem it unnecessary to decide whether Mrs. Baugh could, without alleging fraud upon her on the part of her husband or his attorney in fact who made the conveyances, sue for her share of the damages alleged to have been caused the community estate of herself and husband by representations alleged to have been made to her and to the attorney in fact of W. P. Baugh.

The judgment is affirmed.
      <®=sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes