text:
    STUART v. MEYER.
    (No. 8549.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 24, 1917.
    Rehearing Denied April 28, 1917. On Motion to Certify, May 22, 1917.)
    1. Trusts <&wkey;37i(8) — Recovery oe Stock— Variance — Trial Amendment.
    In an action to recover stock alleged to have been obtained from plaintiff by defendant for voting purposes, although the original petition alleged that the stock was delivered at defendant’s solicitation, where a trial amendment stated that an actual transfer of the stock was made to defendant’s brother for the purpose of effecting the consummation and adjustment of the agreement which plaintiff and defendant had made, defendant was sufficiently appraised of the nature and character of the proof involved, so that proof that the stock was actually delivered to the defendant’s brother to be delivered to a corporation was not a variance under the rule that allegation of misrepresentations by the principal will not be sustained by proof of such representations made by the agent.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 598.]
    2. Pleading &wkey;>236(3) — Allowance oe Amendments — Discretion oe Court.
    Although District and County Court Rule 12 (142 8. W. xviii) provides for amendments generally as contradistinguished from supplemental petitions, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1824, requires amendments to be made before the parties announce ready for trial, in the absence of statutory authority, the practice ' in allowing trial amendments after announcement of ready under leave and within the sound discretion of the court is well established.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 601.]
    3. Evidence <&wkey;443(l) — Parol Evidence Varying Written Agreement — Collateral Undertaking.
    The rule which excludes parol evidence when offered' to contradict or vary the terms, provisions, or legal effect of written instruments has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement.-
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2048.]
    4. -Trusts <&wkey;>372(3) — Evidence — Sufficiency.
    In an ■ action to recover corporate stock transferred pursuant to a written agreement, evidence held to sustain a finding- that there had been an oral agreement between the parties in the, ■ carrying out of which occurred the transfer of the stock to the defendant by the plaintiff.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 602, 603.]
    5. Trusts &wkey;>372(3) — Enforcement — Evidence — Sufficiency.
    ■ Evidence held to warrant a finding that the first conversation which the plaintiff had with the defendant relative to the transfer of the stock was shortly before the time when defend- ■ ant’s brother secured the stock from the plaintiff.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 602, 603.}
    6. Limitation of Actions <&wkey;103(2) — Accrual of Cause of Action — Action by Trustee.
    Where written agreement was executed by plaintiff to defendant in exchange for defendant’s stock in pursuance of a larger oral agreement, the defendant bore to the plaintiff a trust relation with reference to the holding of plaintiff’s stock, and limitation did not begin to run in favor of the trustee until a repudiation by him of the trust relationship and until the cestui que trust had, in the exercise of due diligence, or by constructive notice, discovered such repudiation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 507.]
    7. Trusts <&wkey;110 — Evidence—Sufficiency.
    Evidence held to justify a finding that up to within two years prior to the filing of the suit, defendant had admitted his trust relationship, as to -plaintiff’s stock conveyed to him, and had promised an early return thereof.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 160.]
    On Motion to Certify.
    8. Courts &wkey;>247(7) — Certifying to Supreme Court Cases Involving Previous Deoj-SIONS.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914 art. 1623, authorizing certification of questions to Supreme Court in case of conflict with previous decisions of other Courts of Civil Appeals, a conflict with a decision of the Supreme Court is not authority for certification to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752.J
    9. Courts <&wkey;247(7) — Certifying to Supreme Court Cases Involving Previous Decisions.
    ' The holding that under the parol agreement between the plaintiff and defendant that defendant should return stock conveyed to him by plaintiff after he had used it for voting purposes, the defendant bore a trust relationship to plaintiff with reference to such stock held not in conflict with decisions of other Courts of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752.]
    10. Courts @=3247(7) — Certifying' to Supreme Court Cases Involving Previous Decisions.
    The holding that the plaintiff was not precluded from establishing a larger parol contract of which the written transfer of his stock to the defendant was but a part held not in, conflict with decisions of other Courts of Civil Appeals
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Suit by Robert Meyer against R. T. Stuart. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. A. Turner, of Ft. Worth, for appellant. W. S. Jameson and Paul Donald, both of Montague, and J. A. Templeton, of Ft. Worth, for appelle'e.
   BUCK, J.

On April 25, 1915, Robert Meyer filed in the district court of Montague county a suit against R. T. Stuart, in which he alleged that, on or about the 25th day of April, 1912, he was the owner and holder Qf 50 shares of stock in the Americap Home Life Insurance Company, for brevity hereinafter called Life Insurance Company, of the par value of $20 per share; that said Life Insurance Company was a good and solvent company paying dividends on its stock; that on said date the defendant, with a fraudulent intent to cheat and defraud plaintiff out of tlie aforesaid stock, came to the town of Bowie, where plaintiff resided, and represented to plaintiff that there was a combination of stockholders in said Life Insurance Company, seeking to control said company to its detriment, and that for his own benefit and the benefit of said company it was neqessary that he, the said Stuart, should be elected president and manager of said company at the coming meeting of the stockholders, and, learning that plaintiff would be unable to attend said meeting, he solicited plaintiff to transfer said stock to him, to be used by the defendant in voting for the purpose of assisting and “officering” the company with the best and most efficient man, promising that so soon as he had used said stock for the purposes aforesaid he would return the same unimpaired to plaintiff; that defendant further represented to plaintiff that he owned 50 shares of common stock and 50 shares of preferred stock, each share of the par value of $10, in the Bankers’ Guaranty Company, hereinafter called Guaranty Company, a private corporation, and that said Guaranty Company was a good and solvent company, and its stock worth par value, and that said stock would be ample security to indemnify plaintiff against any loss during the time he, the defendant, ¡should retain the possession of plaintiff’s stock in the Life Insurance Company aforesaid; that, relying on the representations of defendant, plaintiff delivered to the defendant the said shares of stock in the said Life Insurance Company, with the mutual understanding that defendant would send to plaintiff the amount and kind of stock hereinbefore described in the Guaranty Company, to be held as security only to insure the faithful return to plaintiff of said stock in the Life Insurance Company. Within a few days thereafter, in compliance with defendant’s said promise to plaintiff, defendant did deliver to plaintiff 50 shares of common stock and 50 shares of preferred stock in said Guaranty Company, each of the par value of $10. It was further alleged that the stock in the Guaranty Company was wholly worthless and said company was insolvent, and that defendant well knew at the time he made said representations, and at the time of the transactions hereinabove mentioned, such to be the case.

It was further alleged that defendant had failed and refused to re-exchange the Life Insurance Company stock for the Guaranty Company stock, and that he had sold and transferred the stock in the former company . to other parties; that plaintiff had never in any way mortgaged or incumbered the Guaranty Company stock held by him as security, but had held the same for the purpose of re-exchange, as aforesaid, and he tendered said Guaranty Company stock into court.

Defendant, Stuart, after general demurrer and special exceptions and general denial, answered that the true facts were that on or about February 16, 1912, plaintiff contracted in' writing with the Guaranty Company, acting through its agent, O. B. Stuart, to purchase 100 shares of Guaranty Company stock heretofore described, and agreed to pay and exchange therefor his 50-shares of Life Insurance Company stock, and that there were made no conditions, representations, or agreements other than those contained in the written contract of purchase and exchange. Defendant further pleaded the statute of two years’ limitation, and attached to his petition as an exhibit a memorandum in. writing signed by Robert Meyer and witnessed by O. E. Stuart, reciting that said Meyer had purchased the 100 shares of stock in the Guaranty Company, and had agreed to pay in exchange therefor the 50 shares in the Life Insurance Company, and that “No conditions, representations or agreements other than those printed herein shall be binding on the Bankers’ Guaranty Company or any of its representatives.”

Plaintiff, by trial amendment, denied severally the allegations in defendant’s answer, and specially pleaded that if he ever signed the paper set forth as an exhibit to defendant’s answer, he did so a£ the request of O. E. Stuart, who was then acting for the defendant, R. T. Stuart, and so represented himself, and that said instrument was executed and said stock in the Life Insurance Company was exchanged for the stock in the Guaranty Company in -consummation and adjustment of the agreement theretofore 'made between plaintiff and defendant, and that plaintiff signed such papers as the said O. E. Stuart represented to him were necessary in order to effect the exchange of stocks, that, subsequent to said exchange, plaintiff met defendant and complained to him about the status of said stock, and told him, he considered said Guaranty Company stock greatly depreciated in value and insufficient security for the Life Insurance Company stock which plaintiff had loaned and assigned to defendant, and that lie (plaintiff) wished better se'curity for his Life Insurance Company stock, or the return of his said stock, and stated to defendant that it was time to effect the re-exchange of said stock, and defendant replied by assuring plaintiff that at an early day he would adjust the matter satisfactorily and return to plaintiff his Life Insurance Company stock, or pay him therefor, and that he need not he uneasy. He further pleaded that he would not have agreed to the arrangement proposed by O. E. Stuart and have exchanged stocks, had he not been advised by the defendant and by O. E. Stuart that the latter represented the defendant, and was acting for him in consummating the agreement theretofore made between plaintiff and defendant.

Defendant, by trial amendment, ¡demurred generally to plaintiff’s trial amendment, and denied the allegations therein contained, and specially that O. E. Stuart was his agent in the transaction pleaded by plaintiff in his original petition, or was in any way authorized to act for him, defendant, in said transaction.

Upon a hearing before the court, judgment was rendered that plaintiff recover from defendant the sum of $625, the value of the Life Insurance Company stock, and costs of suit. The judgment further recited that, in the event defendant should, within 20 days from judgment, turn over to the clerk of the court the 50 shares of Life Insurance Company stock to be delivered by said clerk to plaintiff, or his order, the said delivery should constitute a full satisfaction of the judgment rendered, except as to the costs. It was further provided that upon the delivery by defendant of the Life Insurance Company stock to the clerk, said clerk should deliver to defendant the Guaranty Company stock held by plaintiff and theretofore tendered into court. From this judgment the defendant has appealed.

Before considering the questions presented under appellant’s several assignments of error, it will be proper for us to direct our attention to appellant’s specifications of fundamental error. These are: (1) The existence of an asserted material variance between the facts allegedly appellee as a basis for recovery and the facts proven, in that plaintiff alleged that he had transferred and delivered to defendant the Life Insurance Company stock, upon the latter’s, solicitation, whereas, it is alleged the proof shows that said stock was transferred to the Bankers’ Guaranty Company and delivered to O. E. Stuart, upon'the latter’s solicitation; (2) because of a failure of proof to support the allegation that the Life Insurance Company stock had been sold and transferred to R. T. Stuart; (3) because of a variance as to the dates of the alleged transaction, the petition stating that R. T. Stuart induced plaintiff to transfer and deliver to said Stuart said stock on April 25, 1912, whereas, it is urged, the proof shows that the transaction occurred in 1909 or 1910; (4) that whereas the plaintiff alleged in his petition that appellant had represented to him that there was a combination of stockholders in the Life Insurance Company seeking to control said company to its detriment, and that for his own benefit and for the benefit of said company, etc., it was necessary that said Stuart should be elected president and manager of said company, etc., that there was no proof that appellant solicited plaintiff to transfer said stock to him, or that it was so transferred, that he might vote it for the benefit of said company and the mutual protection of all persons holding stock therein.

In support of his first specification of fundamental error, appellant cites us to the case of Stevenson v. Cauble, 55 Tex. Civ. App. 75, 118 S. W. 811, by this court, opinion by Associate Justice Dunklin, in which it was held that the allegation that misrepresentations were made by the principal would not be sustained by proof that such misrepresentations were made by the agent. In the cited case, the cases of Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50, Arndt v. Boyd, 48 S. W. 771, and Peyton v. Cook, 32 S. W. 781, are cited on this point. As stated in Mims v. Mitchell, 1 Tex. 447:

“The object of pleading is to apprise the court and the. opposite party of the. facts on which the pleader intends to rely, as constituting his cause of action or grounds of defense. And the averments should set forth the facts relied on with such precision, clearness, and certainty as to apprise the opposite party of what he will-be called upon to answer, and what is intended to be proved, so that the evidence introduced may not take him by surprise. Such certainty is essential in order that tire facts relied on by either party may be understood by the party who is to answer them, by the jury who are to ascertain their truth, and by the court who is to give judgment upon them.”

We feel sure that in the instant case the rule of pleading hereinabove so clearly enunciated by our Supreme Court was not violated, and that defendant was, before bis announcement of ready, apprised by- plaintiff’s pleadings of the nature, and character of the proof in the respect here involved which would’ be offered. It is true that plaintiff pleaded in his original petition that the delivery of the Life Insurance Company stock was ‘ made to defendant. But in his trial amendment he stated that the actual transfer of stock was made to the Guaranty Company at the instance of O. E. Stuart, “agent of defendant for the purpose of effecting the consummation and adjustment of the agreement which plaintiff and defendant had made, as set forth in plaintiff’s original petition.” This latter pleading of plaintiff, while styled a “trial amendment,” was rather in the nature of a supplemental petition or a replication to defendant’s answer, in which the defendant had alleged the sale by plaintiff of his Life Insurance Company stock to the Guaranty Company, and had attached to said answer a copy of the memorandum of sale signed by the plaintiff and witnessed by O. E. Stuart Rule 12 for the District and County Courts (142 S. W. xviii) provides for amendments generally, as contradistinguished from supplemental petitions or supplemental answers, and the function of such amendments is stated in said rule as follows:

“Being to add something to, or withdraw something from, that which has been previously pleaded; so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the party making the amendment.”

While the amendments referred to under this rule do not specifically include so-called “trial amendments,” i.e., amendments filed after announcement of ready, and while article 1824, Vernon’s Say les’ Texas Civil Statutes, requires that all amendments shall be filed before the parties announce ready for trial, yet, in the absence of statutory authority therefor, the practice of allowing amendments, 'both by plaintiff and defendant, to be filed after announcement, under leave and within the sound discretion of the tidal court, is well established and recognized, and no question is here raised by appellant because of the court’s permitting this pleading to be filed. Hence we hold that in the light of the allegation in plaintiff’s so-called “trial amendment,” appellant’s contention of variance cannot be sustained. This conclusion disposes of specifications (1) and (2) of alleged fundamental error. The other specifications will be controlled by what we say in discussing the questions raised under the assignments proper.

To sustain the judgment below, two questions must be decided adversely to appellant’s insistence, to wit: (1) Whether the plea and proof by appellee of the alleged oral agrees ment and contract with R. T. Stuart, whereby plaintiff was to loan or transfer his Bife Insurance Company stock and receive in lieu thereof and as security therefor the Guaranty Company stock, was an attempt to vary by parol the terms of the contract in writing. (2) Whether the two years’ statute of limitation is a bar to appellee’s recovery.

While it is true that in the absence of fraud, accident, or mistake, that which purports to be set out in the terms of a contract or agreement in writing entered into between parties may not be varied, in an action between such parties or their privies, by parol evidence to establish a contemporaneous or prior parol agreement which will in any material respect alter, add to, or subtract from, or modify the contract evidenced by the writing, yet this general rule, which excludes parol evidence when offered to contradict or vary the terms, provisions, or legal effect of written instruments, has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement. 10 R. C. L. p. 1019, § 211, says, in part, .as follows:

“Where the parties have reduced an agreement to writing, the writing is supposed to contain all the agreement, and is the only evidence of it; and all prior or contemporaneous declarations and negotiations between the parties are excluded as evidence of the agreement, or any part of it. .But where the agreement is not reduced to writing, but is intended by the parties to rest in parol the written instrument being subsequently executed in part execution of the parol agreement, and not for the purpose of putting that agreement in writing, it is well settled that an instrument thus executed does not supersede a prior parol agreement.”

Section 213, p. 1020, same text, reads:

“The rule that parol testimony may not be given to contradict a written contract, is applied only in suits between the parties to the instrument or their privies. The parties to a written instrument have made it the authentic memorial of their agreement, and for them it speaks the whole truth upon the subject-matter. It does not apply to third persons, who are not precluded from proving the truth, however contradictory to the written statements of others.”

Section 228, Id.:

“The authorities are agreed that a parol contract may be added to a written one, and the two may stand together, though made simultaneously. The same principle declares that the reduction to writing of one feature of an entire' transaction, in part execution thereof, does not preclude proof by parol of the other features. Otherwise stated, the rule is that proof is admissible of any collateral, parol agreement or independent fact which does not interfere with the terms of the written contract, though it may relate to the same subject-matter; and whether such collateral agreement was made or independent fact occurred contemporaneously with or as preliminary to the main contract in writing is quite immaterial.”

Section 230, Id., is, in part, as follows:

“The rule that where a written contract is made as only a part execution of an entire verbal contract, that portion not embodied in the paper may be shown by parol, applies only where such portion is in itself a distinct, complete contract, not -to mere stipulations in regard to and varying the terms on the written contract. What is sought to be shown as a collateral agreement must not in any way conflict with or contradict what is contained in the written contract. Extrinsic evidence is not admissible to show that a contract was partly written and partly oral, if the matter proposed to be made part of the contract by such evidence is inconsistent with the terms of the writing. But .the fact that the collateral agreement relates to the subject-matter of the written instrument does not render the admission of such evidence obnoxious to this rule.”

Defendant below denied plaintiff’s allegations as to the oral agreement, and denied' any participation in or knowledge of the transaction between his brother, O. E. Stuart, and the plaintiff, or between the plaintiff and the Bankers’ Guaranty Company. Though defendant pleaded the purchase on the part of plaintiff through O. E. Stuart, as agent, of the Guaranty Company stock, ,and the payment therefor in the Life Insurance Company stock, yet since by his pleadings, and we may say by his testimony, he denied having anything to do with said transaction or being privy thereto in any way, we are unable to say that he places himself in a position to invoke the rule as to parol testimony which tends to vary, contradict, or otherwise affect the legal effect of a written instrument. Johnson v. Portwood, 89 Tex. 235; Pierce v. Johnson, 50 S. W. 610; Hughes v. Sandal, 25 Tex. 162; Greenleaf on Evidence, vol. 1, § 279a. As sustaining the proposition that the general rule which excludes parol evidence when offered to contradict or vary the terms, provisions, or legal effect of a written instrument has no application to the collateral undertakings or cases in which the written instrument was executed in part performance of the entire oral agreement, see Hansen v. Yturria, 48 S. W. 795; Preston v. Breedlove, 36 Tex. 96; Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 383, 384; Cummings v. Moore (writ denied) 27 Tex. Civ. App. 555, 65 S. W. 1113; Thomas v. Hammond, 47 Tex. 42; Rose’s Texas Notes, vol. 2, p. 795; Landrum v. Stewart, 111 S. W. 769; Davis v. Sisk (writ denied) 49 Tex. Civ; App. 193, 108 S. W. 472; Street v. J. I. Case Threshing Co., 188 S. W. 727; Seitz v. Brewers’, etc., Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 E. Ed. 837; and the well-known Massachusetts case of Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436.

Hence, we conclude that as to the first question raised the answer must he adverse to appellant’s contention. We think the evidence sufficient to sustain the finding which must be imputed to the court that an oral agreement was had between appellant and appellee in the carrying out of which occurred "the transfer of the Life Insurance Company stock to the Guaranty Company, and the transfer by it to plaintiff of 100 shares of its stock. Plaintiff below testified, in part, as follows:

“I had that 50 shares of American Home Life, and Stuart was in trouble—he was about to lose bis presidency from that company—and he came up to Bowie, and he insisted on me to help him all I could, and I told him as a friend of mine that I would do so; and he wanted me to let him have my stock so he could vote it. That conversation took place in 1912; I think it was in the spring of the year—it was cool or chilly weather—I think it was in the spring of the year. The conversation took place in my hotel. He wanted the stock to help him out in his company that he started and as a friend—he has been that—-I should help him to do so, and I did; and I didn’t look at those papers, I just simply took Stuart’s verbal statement, ‘You know I am a friend of yours, and I wouldn’t have you lose a cent for anything in the world, and it is just simply to help me out,’ and I said, ‘Anything I can do for you, Mr. Stuart, I will be glad to do so,’ and I never intended to buy or exchange the American Home Stock for any other kind of stock that I didn’t know anything about. After I had agreed to turn over that American Home .stock, then his brother came up here. Mr. R. T. Stuart told me about how he would close up the deal; he said, T want you to do all you can for me; I am very busy;’ and he wont, and before he left he said, ‘I may have to send my brother up here because I am a very busy man;’ and his brother came up here then, and he said, T came up here to look after that deal that you and my brother made about that American Home Stock;’ and I did that to help him out in his American Home affairs; I never intended to buy any Bankers’ Guaranty stock.”

The witness goes on and states that O. E. Stuart, who the evidence shows is the brother of R. T. Stuart, and was the agent of the Bankers’ Guaranty Company at the time of this transaction, told the plaintiff that it would be necessary for plaintiff to execute a transfer of his American Home Life Insurance stock to the Bankers’ Guaranty Company, and to sign a memorandum of purchase of the Guaranty Company’s stock, in order to carry out the agreement which he, plaintiff, had therefore made with R. T. Stuart, who it is shown was president of the Guaranty Company at this time and was also, or had been,, president of the American Home Life Insurance Company and owned stock in both corporations. The evidence further shows that about a year and a half or two.years prior to the trial of the case, plaintiff met R. T. Stuart at the former’s hotel and asked him when he would get his Life Insurance Company stock back, and told him that he wanted the matter fixed up, and that Stuart promised him that he would attend to the same, saying:

“Bob, I. will make it satisfactory to you the very next time I come up. You know I am a friend of yours and I will make it absolutely satisfactory to you; you shan’t lose a cent.”

While it is true that in another place, under cross-examination, the witness stated that he could not tell whether the first conversation he had with R. T. Stuart in regard to the stock transaction was in 1909 or 1910, stating:

“It was five or six years ago; but I couldn’t tell you when. I cannot recall those dates”

—yet since the date of the instruments upon which appellant relied to defeat plaintiff’s action shows that the transfer of stock was effected in 1912, we think the court was entirely .justified in giving credence to that portion of plaintiff’s testimony where he stated that the first conversation had with Stuart relative to this matter was shortly prior to the time when O. E. Stuart came to Bowie and secured his Home Life Insurance Company stock.

We are further of the opinion that the judgment must be sustained on the question of limitation. If the parol agreement between R. T. Stuart and plaintiff was made in fact as contended by plaintiff, and if in fact these written instruments were executed by plaintiff and the exchange of stocks effected merely in pursuance of the larger oral agreement, defendant bore to plaintiff a trust relation with reference to the holding of the 50 shares of Life Insurance Company stock, and limitation would not begin to run in favor of the trustee' until a repudiation by him of such trust relationship, and until the cestui que trust had, in the exercise of due diligence or by constructive notice, discovered such repudiation. Neyland v. Bendy, 69 Tex. 711, 7 S. W. 497; Cole v. Noble, 63 Tex. 432; Pitman v. Holmes, 34 Tex. Civ. App. 485, 78 S. W. 963. In this connection plaintiff testified:

“As to whether I ever talked to Mr. Stuart after I parted with my stock, I will say, I don’t know how long it was. I wrote a letter, and it was quite a long time afterwards, and. Stuart assured me that he would be up, and he was up one time, and Mr. Stuart said: ‘Bob, I am very busy. I haven’t got absolutely no time to attend to it, but I will be up again in a very short time.’ ”

Then follows the testimony quoted here-inabove.

Prom this evidence it would seem that the court was justified in concluding that up to within two years prior to the filing of the suit, defendant had admitted his trust relationship as to the American Home Life Insurance Company stock, and had promised an early return thereof. Wherefore we conclude that defendant’s plea of limitation ought not to be sustained.

All assignments of error are overruled, and the judgment is affirmed.

On Motion to Certify.

Appellant’s motion to certify is based on several grounds of alleged conflict with the decisions of Courts of Civil Appeals and the Supreme Court. A conflict with a decision of the Supreme Court is not authority for certifying the question involved. Article 1623, Vernon’s Sayles’ Texas Civil Statutes; T. & P. Ry. Co. v. Willson, 101 Tex. 269, 106 S. W. 325.

I. It is claimed that in holding that if the parol agreement between defendant and plaintiff was as claimed by the latter, defendant bore a trust relation to plaintiff with reference to holding the 50 shares of the Life Insurance Company stock, we are in conflict with the San Antonio Court of Civil Appeals, in Bundren v. Lehr Agricultural Co., 40 S. W. 205; with the Amarillo Court, in Pollard v. Allen, 171 S. W. 530; with the Supreme Court, in Phillips v. Holman, 26 Tex. 277. In the Bundren Case was involved a contest between the daughter and a judgment creditor of the father', the latter, through the constable, having levied upon certain lots in the name of the father, but which the daughter claimed by virtue of an alleged agreement of her father to give her thereon a written lien to secure borrowed money. While the facts of the two cases are in no wise similar, nor the questions of law involved identical, yet appellee quotes from the opinion the following language, claiming it to be expressive of a holding contrary to ours in the instant case, to wit:

“A trust does not arise from a promise of one to convey land in payment of a loan, and neither can it arise from the breach of a mere parol contract. Perry on Trusts, §§ 133, 134.”

If any doubt should arise as to the question of conflict here suggested, it is dispelled by reading the text from which Judge Ply quoted as sustaining authority. The author was discussing the question of a trust in the land or other thing conveyed, or sought to be changed, not the relationship between the parties as affecting the question of limitation.

In Pollard v. Allen, supra, was involved the placing of money in bank by Allen to the credit of his uncle, who it was alleged promised to put said money out at interest for the benefit of Allen. The contest was between the executor of the uncle, deceased, and Allen. In the first place, where the very plea of plaintiff shows that the mopey loaned or placed to defendant’s credit, or to the person represented by defendant, was to be loaned out, such plea excludes the theory that the indentical money was intended to be returned, or that any sort of bailment of the chattel itself was created. There are other features in the cited case which we believe distinguish them from the one under consideration. It might be further noted that in 179 S. W. xvi, it is shown that a writ of 'error was granted in the Allen Case.

While not incumbent upon us in this connection to note the Supreme Oourt case of Phillips v. Holman, yet we do not feel we are out of harmony with that case. There Phillips transferred to Holman certain shares of stock which Holman agreed to use “as in his judgment would make it most profitable or productive.” In the opinion Justice Bell, for the court, said:

“It is true, the contract did not contemplate any particular period of time within which it was to be performed; but it nevertheless implied that it should be performed within a reasonable time, and devolved upon Holman the obligation, after the lapse of a reasonable time, to account to Phillips upon the contract.”

The certificates of stock were transferred in 1838, while suit was filed in 1857.

In the instant case, according to plaintiff’s plea, the transfer of stock was made, not for the purpose of Stuart’s selling it or trading it, but to be held by his designated agent for a specific purpose, and then to be returned.

2. It is urged that in holding that the plaintiff was not precluded from establishing a larger parol contract of which the written transfer of the Life Insurance Company’s certificates was but a part, we are in conflict with the holding of the Austin Court of Appeals in McCullough v. P. & M. Bank, 58 Tex. Civ. App. 160, 123 S. W. 439, and Sims v. Shafer, 133 S. W. 702; with the Dallas Court, in Hendrick v. Chase Furniture Co., 186 S. W. 277; with the Amarillo Court, in Insurance Co. v. Barrington, ISO S. W. 938; with the San Antonio Court, in Wizig v. Beisert et al., 120 S. W. 954. In the interest of brevity, we will state that we have carefully examined each case to which we have been referred, and in our opinion no conflict exists between our holding in this case and that in any case cited. The cited cases merely enunciate the general rule that evidence of prior or contemporaneous parol agreements which are inconsistent with and tend to vary the terms of a written contract is inadmissible. This rule we thoroughly recognized in our consideration of the questions here involved on original hearing, and we do not believe that in anything we have said has that rule been disregarded.

We do not think we are in conflict with Belcher Land Mortgage Co. v. Norris, by this court, 34 Tex. Civ. App. 111, 78 S. W. 390, in the expression used in this opinion, to wit:

“* * * He [Stuart] denied having_ anything to do with said transaction or being privy thereto in any way, and we are unable to say that he places himself in a position to invoke the rule as to parol testimony which tends to vary, contradict, or otherwise affect the legal effect of a written instrument.”

While we do not believe any conflict of law has been pointed out, yet, as we construe the allegations of the petition with reference to the amount in controversy, the cause was one over which the district court had exclusive original jurisdiction, and therefore the appellant may invoke the jurisdiction of the Supreme Court by applying for writ of error, and he is not without remedy in case we are in error in our expressed views.

The motion to certify is overruled.
      <S=o>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    WEDGWORTH et ux. v. POPE et al.
    (No. 8579.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 16, 1917.
    Rehearing Denied May 19, 1917.)
    1. MORTGAGES &wkey;>32(5) — ABSOLUTE DEED AS Mortgage — Construction—Continued Existence oe Debt.
    Whether a conveyance absolute on its face with a written agreement for repurchase is a mortgage or a conditional sale will depend upon the continued existence of the relation of debt- or and creditor, and, unless such relation continues, the transfer will be held a conditional sale.
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 61, 88.]
    2. Mortgages <®=»39 — Absolute Deed as Mortgage — Construction — Question eob Jury.
    Where a deed absolute on its face containing an agreement for a reconveyance' to the grantor upon payment of notes did not state whether the notes would be satisfied by the conveyance in the event of the grantor’s failure to repurchase and was silent respecting disposition of a judgment held as collateral, the question of the intention of the parties was for the jury under appropriate instructions.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 112, 113.]
    Error from District Court, Tarrant County; J. W. Swayne, Judge.
    Suit by Y. K. Wedgworth and wife against J. B. Pope and others. Judgment for defendants, and plaintiffs bring error.
    Reversed and remanded.
    A. B. Curtis and V. K. Wedgworth, both of Ft. Worth, for plaintiffs in error. Stephens & Miller and Glover G. Johnson, all of Ft. Worth, for defendants in error.
   DUNKLIN, J.

On January 6, 1914, Y. K.. Wedgworth and wife, Fannie R. Wedgworth, executed to J. B. Pope an instrument in writing in the form of regular conveyance with warranty of title, purporting to convey certain town lots in the city of Ft. Worth. The consideration recited in the instrument was as follows:

“Ten dollars and the further consideration of the agreements hereinafter made:
“It is the purpose and intention of this instrument to make an absolute and unqualified conveyance of said property and to vest in the grantee, free, clear and unincumbered title thereto, having no other or further conditions attached thereto except the following right to repurchase said property upon the following terms, to wit:
“(1) The said J. B. Pope, grantee herein, in accepting this instrument gives to the grantors herein, and the grantors herein expressly reserve the right to repurchase said property from said J. B. Pope at any time on or before the first day of August, 1914, up on the payment in full by the grantors or either of them, of three certain notes executed by V. K. Wedgworth to J. B. Pope in the principal sums of $1,500, $S69.45 and $458.85, respectively, dated December 15, 1910, December 19, 1912, and December 19, 1912, respectively, together with interest and attorney’s fees.
“(2) It is further agreed and stipulated that if the grantors herein shall pay to J. B. Pope the full amount of the aforesaid notes, including principal, interest and attorney’s fees, on or before August 1, .1914, then, in that event, J. B. Pope shall reconvey all of the aforesaid property to the grantors herein, and shall also assign to said grantors all his interest in and to a certain judgment in favor of J. B. Pope against D. M. Beauchamp, J. W. Maxwell and J. L. Rutherford in the case of Pope v. Beauchamp et al. now pending before the Supreme Court of Texas on application for writ of error.
“(3) It is further agreed and stipulated that J. B. Pope shall allow as credits on the aforesaid notes all and any moneys received by him from said judgment in the case of Pope v. Beau-champ et al., on or before the first day of August 1914, but not thereafter.
“Now, therefore, if said V. K. Wedgworth and Fannie R. Wedgworth, grantors herein, shall fail and refuse to pay all of the aforesaid notes together with all the interest due thereon and attorney’s fees on or before the first day of August 1914, then and in that event the option to repurchase the aforesaid property shall- be, and is forfeited by said V. K. Wedgworth and Fannie R. Wedgworth.
“In the event of the forfeiture of the right to repurchase as hereinabove stated on or before August 1, 1914, then the said J. B. Pope shall be, and by these presents is vested with clear and unincumbered title, being free to own, hold, or in any manner dispose of said property; it being in that event the property of the said J. B. Pope, free from any right, title, claim or interest therein or thereto in said V. K. Wedg-worth and Fannie R. Wedgworth.
“This deed is given in compromise of a certain injunction proceeding in the district court of the Seventeenth judicial district of Tarrant county, Texas, same being No. 36074 and styled V. K. Wedgworth v. Glover C. Johnson et al., on the docket of said court; and a part of the consideration hereof is the forbearance of J. B. Pope to foreclose at this time his deed of trust lien on the property hereinabove mentioned, and a relinquishment on the part of V. K. Wedgworth and Fannie R. Wedgworth of such rights as they may have under said injunction proceeding.”

At the time of tile execution of that instrument, Wedgworth owed to Pope the promissory notes mentioned in paragraph 1 of the consideration so expressed, to secure the payment of which Pope held deeds of trust fr^m Wedgworth and wife upon the .property conveyed by the deed. Pope also iield as collateral security for $1,600 of said indebtedness, the judgment mentioned in paragraph 2 of tne consideration, which was a judgment of foreclosure upon a vendor’s lien note for the principal sum of $3,000 executed by D. M. Beauchamp, J. W. Maxwell, and J. L. Rutherford in favor of C. T. Wright, which had been transferred to Wedgworth, and which Wedgworth had hypothecated to Pope.

We'dgworth and wife instituted this suit against Pope to recover the alleged excess in value of said lots over and above said indebtedness; also, to recover title to the judgment held by Pope as collateral, or, in the alternative, the value thereof; also, to recover the value of an undivided one-half interest in two other lots upon which Wedgworth had also executed a deed of trust to secure accrued interest on the notes referred to above, lin'd which deed of trust it was alleged had been foreclosed by a trustee’s sale and purchased by Pope after the execution of the deed first mentioned.

In their petition plaintiffs alleged the execution of the promissory notes referred to, with the further allegation that they failed to pay off said indebtedness within the period given by said deed to repurchase the property; that thereby the deed became an absolute 'deed of conveyance to Pope. Plaintiffs further alleged that, in addition-to the consideration expressed in the deed, it was understood and agreed by and between them and Pope, at the time of the execution of the deed, that, in the event plaintiffs should fail to pay off said indebtedness and the deed should thereupon become an absolute conveyance, then Pope would pay to plaintiffs such sum as the reasonable value of the property soi conveyed might exceed the amount of said indebtedness, and should also transfer to plaintiffs the judgment held by Pope as collateral security. It was further alleged that on August 1, 1914, the time limit given ¿fiaintiffs to repurchase their property, the same was reasonably worth the sum of '$7,-360, and that the judgment held by Pope as collateral was of the reasonable value of $4,225. The difference between the alleged aggregate value of the real estate and the judgment and the amount admitted to be due Pope upon the notes was the sum of $8,965, for which amount plaintiffs sought judgment. Plaintiffs also sought to recover she value of a life insurance policy alleged to have been also hypothecated as security for said indebtedness prior to the execution of said deed; but this policy was returned to him upon the trial, and therefore will not be further noticed.

The defendant pleaded, first, that the deed in controversy was a conditional sale which became absolute upon the failure of plaintiffs to repurchase within the time specified, and that the only consideration agreed between the parties therefor was a compromise of the injunction suit as recited therein. In another count of his answer defendant further alleged that in September, 1914, after the expiration of the period within which plaintiffs had a right to repurchase the property, there was a foreclosure of the 'deed of trust held by him upon the property at the time of the execution of the deed, and he became the purchaser thereof for the sum of $500; the sale being made by the trustee mentioned in the deed of trust in accordance with the terms thereof, and defendant being the highest bidder therefor at public auction. Defendant further alleged that the judgment in favor of Pope against Beauchamp et al. 'did not award a foreclosure of lien for the full amount of the collateral note, but for $1,500 only of that amount; that said -judgment is still pending on appeal to the Supreme Court of Texas; that it is questionable whether or not such foreclosure will be sustained; and that without such foreclosure the judgment would be practically of no value, as the defendants in that judgment are insolvent., By a plea in reconvention, the defendant further sought a personal judgment against plaintiffs upon said promissory notes for the balance due thereon, after crediting the same with the amounts realized at the foreclosure sales of the property un'der deeds of trust and mentioned above.

The trial court instructed a verdict against the cause of action asserted by the plaintiffs and in favor of the defendant upon his cross-action for the amount claimed. Prom that judgment, plaintiffs have prosecuted this writ of error.

The first assignment we will consider will be the- one complaining of the court’s peremptory instruction to the jury.

Whether or not the deed in controversy became an absolute dee'd of conveyance from and after August 1, 1914, or whether or not after that date it had the effect to leave in full force and effect the prior mortgage lien upon the property, or else itself constituted a mortgage lien thereon, is the first question to be determined.

In Alstin v. Cundiff, 52 Tex. 462, in discussing the question whether or not a conveyance absolute on its face with a written agreement for repurchase signed by the parties was a mortgage or a conditional sale, the court, after reference to the decision of Ruffier v. Womack, 30 Tex. 340, said:

“The true test, as laid down in the above case of Huffier v. Womack, is that, if the relation of' debtor and creditor continues to exist, it is a mortgage; otherwise, it is a conditional sale.”

3 Pomeroy, Equity, par. 1195, is as follows:

“The criterion is the continued existence of a debt or liability between the parties, so that the conveyance is in reality intended as a security for 'the debt or indemnity against the liability. If there is an indebtedness or liability between the parties, either a debt existing prior to tlie conveyance, or a debt arising from a loan made at the time of the conveyance, or from any other cause, and this debt is still left subsisting, not being discharged or satisfied by" the conveyance, but the grantor is regarded as still owing and bound to pay it at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment of the existing debt, then the whole transaction amounts to a mortgage, whatever language the parties may have used, and whatever stipulations they may have inserted in the instrument. On the contrary, if no such relation whatsoever of debtor and creditor is left subsisting, then the transaction is not a mortgage, but a mere sale and contract of repurchase.”

Jones on Mortgages, § 258, reads:

“Whether a conveyance be a mortgage or a conditional sale must be determined by a consideration of the particular circumstances of each case. 'A glance at the numerous adjudications in controversies of this kind will suffice to show that each must be decided in view of the particular circumstances which belong to and mark its character, and that the only safe criterion is the intention of the parties, to be ascertained by considering their situation and the surrounding facts, as well as the written memorials of the transaction.’ The intention of the parties is the only true and infallible test, and this intention is to be gathered from the circumstances attending the transaction and the conduct of the parties as well as from the face of the written contract.”

See, also, Jones on Mortgages, §§ 263, 265, 267; Miller v. Yturria, 69 Tex. 549, 7 S. W. 206; Kirby v. Natl. Loan & Investment Co., 22 Tex. Civ. App. 257, 54 S. W. 1081; Goodbar v. Bloom, 43 Tex. Civ. App. 434, 96 S. W. 663.

It will be noted that in the deed in controversy there was no stipulation that the notes owing by Wedgworth to Pope at the time of the execution of the instrument should be satisfied by the conveyance in the event of the failure of the plaintiffs to repurchase the property conveyed. Whether or not such notes should be credited with any sum as the value of said real estate, in the event of a failure of the plaintiffs to repurchase, and, if so, the amount of such credit, the deed- itself does not show. The deed is also silent with respect to the .disposition of the judgment held by Pope as collateral in that contingency. The evidence was conflicting as to whether or not it was understood between the parties that the debts owing by plaintiffs would be extinguished if the deed became absolute. We think Wedgworth’s testimony, which was the only testimony on that issue, was insufficient to support the allegation in plaintiff’s petition that the understanding of the parties was that, in the event he should fail to repurchase the property, Pope would charge himself with the reasonable value thereof, and should pay Wedgworth the excess of such value over and aibove the amount of the debts. However, independent of such failure of proof on that issue, and for the reasons already indicated, we are of the opinion that the court should have submitted for a determination by the jury, under appropriate instructions, the issue whether or not it was the intention of the parties that the deed should operate as an absolute .deed from and after August 1, 1914.

The proper ‘determination of other issues presented in the pleadings would hinge upon the determination of that issue, and hence we will not discuss them.

For the error indicated, the judgment is reversed, and the cause remanded.
      <§zn>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    MATHIS et al. v. PRITCHARD et al.
    (No. 8721.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 21, 1917.)
    1. Appeal and Error <§==>840(1) — Review — Questions Considered.
    In a suit against the trustees of a common school district to enjoin the application of certain funds belonging to the district for the building of a schoolhouse, where there was no contention that the members of the board of county school trustees who made the order were not duly elected and qualified, or that the defendants were not regularly elected and qualified, or that they were proceeding in the disposition of the funds of the district in an irregular manner, or that there has been any actual effoi-t to collect of the plaintiffs any tax in excess of that authorized by the Constitution, the appellate court will only determine question of the validity of the order of consolidation.
    2. Appeal and Error <§=^840(1) — Review — Questions Considered. .
    In view of Acts 34th Leg. c. 36, § 4, providing for consolidation of school districts for the purpose of establishing a high school upon a petition of a majority of the qualified electors of the districts sought to be consolidated, the contention that the order of consolidation was a nullity for the reason that it was not made upon a petition of a majority of the qualified electors of the two districts consolidated will not be considered, where it is nowhere asserted in the pleadings that the consolidation was for the purpose of establishing a high school or that within those districts there were children of high school advancement.
    3. Schools and School Districts <@=>37(3)— Consolidation — Statute.
    Acts 34th Leg. c. 36, § 2, provides that the general management, etc., of public schools in each county shall be vested in five county school trustees, etc. Section 4 provides that such trustees are authorized to exercise authorities heretofore vested in the countv commissioners’ court in respect to subdividing and making changes in school districts, and further prescribes regulations with respect to notice. Acts 32d Leg. c. 26 (which Acts 34th Leg. c. 36 amended) § 6, provides that all rights and powers pertaining to the public free schools of the county formerly vested in the commissioners’ court and not prescribed by the act are vested in the county school trustees. Held that, although the word ‘‘consolidate” is not used, section 4 gave the board of county school trustees the power formerly given the county commissioners’ court to consolidate common districts already organized without petition of the electors.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. § 63.]
    Appeal from. District Court, Jones County; Jno. B. Thomas, Judge.
    Suit for injunction by G. W. Mathis and others against C. D. Pritchard and others, as Trustees of Common School District No. 56 of Jones County. From an order dissolving an injunction, plaintiffs appeal.
    Affirmed.
    E. T. Brooks and Jas. P. Stinson, both of Anson, for appellants. Andrews & Coombes, of Stamford, and R. E. Rodgers, of Anson, for appellees.
   CONNER, C. J.

This is an appeal from an order dissolving an injunction sued out by appellants against C. D. Pritchard and others, as the trustees of common school district No. 56 of Jones county, Tex., to restrain the application of certain funds belonging to said district to the building of a schoolhouse.

The case made by the pleadings, briefly stated, is that on or about May 23, 1914, common school district No. 56 held an election for the purpose of an issuance of bonds in the sum of $1,000 to build a schoolhouse; that the election resulted in favor of the bonds which were duly issued and sold and a tax levied on all property within the district not to exceed 50 cents) on the $100 valuation to pay the bonds and interest; that thereafter, on the 25th day of September, 1915, “the duly qualified, acting county school trustees of Jones county, in session as the board of trustees for said county,” entered an order “redefining and redistricting said common school district No. 56, thereby taking in common school district No. 14,” which had theretofore been duly constituted. It was further alleged that a later election was held in the territory theretofore known as common school district No. 14 for the issuance of bonds for the purpose of building a schoolhouse in the sum of $1,000, which said election also resulted in favor of the issuance of bonds, and in payment of which a tax of 8 cents on the $100 valuation of property in the enlarged district had been levied.

It was complained, among other things, that the order of consolidation was without authority and void, and that by the assessment of taxes last mentioned the plaintiffs' property, situated in that part of the district originally 56, was burdened with a tax in excess of that allowed by the Constitution. It was further complained, in substance, that the trustees made defendants were about to appropriate funds obtained by the tax levy first mentioned to the building of a schoolhouse within the territory of which original school district No. 14 was composed.

The result of the appeal from the judgment of the court dissolving the injunction depends, we think, upon whether or not the order of the board of trustees of date September 25, 1915, consolidating school districts Nos. 56 and 14 was valid. If that order was authorized, then, regardless of all other questions presented on this appeal, the judgment must be affirmed; for appellants made no contention that the members of the board of county school trustees who made the order were not duly elected and qualified; nor is there any contention that the defendants, the trustees' of common school district No. 56 as consolidated, were not regularly elected and qualified, or that they were proceeding in the disposition of the funds of the district in an irregular manner; nor does it appear from the pleadings that there has been any actual effort to collect of appellants any tax in excess of that authorized by the Constitution. So that, as stated, we deem it to be only material to determine the question of the validity of the order of consolidation mentioned.

The power of subdividing counties into convenient school districts and of altering lines thereof and of consolidating districts already constituted was formerly vested in the county commissioners’ courts. See Revised Statutes 1911, arts. 2815, 2816. Article 2815 was amended by act approved April 3, 1913 (Acts 33d Leg. c. 129), but the amendment is not important in the determination of the question before us. The Legislature, however, by act approved March 5, 1915 (see General Laws 34th Leg. p. 68), provided (section 2) that the general management and control of public free schools in each county of the state should be vested in five county school trustees elected from the county at the time and in the manner pointed out in the act. It was then provided (section 4) that:

“The county school trustees are authorized to exercise the authority heretofore vested in the county commissioners’ court with respect to subdividing the county into school districts, and to making changes in school district'lines.”

After other regulations in respect to notice, it was further along in said section also provided that:

“The county school trustees shall have authority to consolidate two or more common school districts into a larger common school district where a majority of the qualified electors of each common school district at interest shall petition the county school trustees for consolidation in order that a high school may.be established for the children of high school advancement in the common school district so consolidated.”

One of appellants’ contentions is that the order of consolidation referred to was a nullity for the reason that the order was not made upon a petition of a majority of the qualified electors .of common school districts Nos. 56 and 14, but this particular phase of the appeal is not deemed important nor controlling, for the reason that it is nowhere asserted in the pleadings that the consolidation of districts Nos. 56 and 14 was for the purpose of establishing a high school, or, indeed, that within those districts there were children of high school advancement. The question presented, therefore, under the acts referred to, necessitates merely a determination of the power of the board of county school trustees to change the lines-of or consolidate school' districts already organized. We have concluded that the general language from section 4 of the act approved March 5, 1915, and which we first quote, gave such power. It is true the word “consolidate” is not used, but the act by its caption purports to be an act “amending chapter 26, Acts Regular Session of the 32d Legislature,” which, among other things (section 6), expressly provides that:

“All rights and powers pertaining to the public free schools of the county that have heretofore been vested in the commissioners’ court and that are not prescribed by this act, shall hereafter be vested in the county school trustees.

—thus, on the whole, evincing, as we think, the legislative purpose to vest in the board of county school trustees the general power, without the requirement of petitions, formerly given to county commissioners’ courts to change the lines or consolidate common school districts for public free school purposes.

Since the ¡preparation -of the foregoing opinion our attention has been called to the recent case of Price v. County School Trustees, by the Dallas Court of Appeals, published in 192 S. W. 1141, but, as the case is in harmony with the conclusion already announced, a simple reference thereto will be sufficient.

Judgment affirmed.
      <§=»!Tor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    AKIN et al. v. THOMPSON et al.
    (No. 8615.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 28, 1917.)
    1. Husband and Wife <®=^85(1) — Joint Note —Liability.
    The act of a wife, in joining with her husband in the execution of a vendor’s lien note for the purchase price of land which became a part of the community estate of the makers of the note, did not create a personal liability on the part of the wife.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 334, 336, 337.]
    2. Husband and Wife <&wkey;57 — Notes—Statutes — Reteoactive Opebation.
    Tinder Rev. St. 1911, p. 1719, Pinal Title, § 6, providing that no liability incurred prior to the time when any statute will be repealed or altered by the Revised Statutes shall be affected by such repeal or alteration, but suit for such liabilities shall be instituted and proceeded with in all respects as if such prior statute had not been repealed or altered, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621, giving the wife the sole management and control of her separate property, and article 4622, relating to community property and giving wife sole control of her personal earnings, etc., and article 4624, providing that community property other than the wife’s personal earnings and income from separate property shall be subject to her debts and that she shall never be the joint maker of the note of another without the joinder of her husband, can be given no retroactive effect to create a personal liability on the part of a wife who joined with her husband as maker of a note executed before the passage of such sections.
    [Ed. Note. — Por other cases, see Husband and Wife, Cent. Dig. §§ 274, 284.]
    Appeal from District Court, Wise County; P. O. McKinsey, Judge.
    Suit by Laura Thompson and others against Mrs. Nellie P. Akin and another. Judgment for plaintiffs, and named defendant appeals.
    Judgment reversed and rendered as to named defendant, and in other respects not disturbed.
    Bumpass & Crumbaugh, of Terrell, for appellant. McMurray & Gettys, of Decatur, and H. E. Lobdell, of Bridgeport, for appellees.
   CONNER, C. J.

Mrs. Nellie P. Akin appeals from a judgment against her in favor of the appellee, Laura Thompson, executrix, upon a promissory note executed by Nellie P. Akin and her husband, W, J. Akin, reserving-the vendor’s lien upon certain lands therein mentioned.

The sole question presented is whether the judgment against N,ellie P. Akin personally and authorizing execution against her separate property was correct. We think not. The note was executed by W. J. Akin and Nellie P. Akin for part of the purchase money of certain lands, which the evidence shows without doubt thus became a part of the community estate of the makers of the' note. That a wife had no power to so contract prior to the act approved March 21, 1913 (General Laws 1913, p. 61; Vernon’s Sayles’ Texas Civil Statutes, arts. 4621, 4622, and 4624) has been so frequently determined that we need only cite a few decisions to-that effect. Lynch v. Elkes, 21 Tex. 229; Trimble v. Miller, 24 Tex. 215; Farr v. Wright & Hart, 27 Tex. 96; Covington v. Burleson, 28 Tex. 368; Menard v. Snydor, 29 Tex. 257; Harris v. Williams, 44 Tex. 124; Snow v. Mather, 52 Tex. 651; Sigal v. Miller, 25 S. W. 1012. That the power did not so exist under the circumstances of this case,, to be hereinafter stated, even under the act approved March 21, 1913, already referred to, has been quite recently decided by the Texarkana Court of Appeals in the case of Red River Nat. Bank v. Ferguson, 192 S. W. 1088. We need not, however, express approval of the opinion of the Texarkana court in order to sustain our conclusions, for the reason that, the note signed by appellant Nellie P. Akin, and upon which the judgment was rendered, was executed May 5, 1913, prior to the taking effect of the act approved March 21, 1913, which in no event can be given the retroactice effect of creating a personal liability on the-part of Mr. Akin. See section 6, Final Title, Revised Statutes 1911, p. 1719, which reads, so far as applicable:

“That * * * no liability * * * incurred prior to the time when any statute, or part thereof, shall be repealed or altered by the Revised Statutes, shall be discharged or affected: by such repeal or alteration; but * * * suits for such * * * liabilities * * * shall be instituted and proceeded with in all respects as if such prior statute, or part thereof, had not been repealed or altered,” etc.

We conclude that the court erred in rendering a personal judgment against Mrs. Nellie P. Akin, and that as to her the judgment should be reversed and here rendered in her favor; the judgment in other respects not being disturbed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    COLONIAL LANE & LOAN CO. v. JOPLIN.
    (No. 7393.)
    (Court of Civil Appeals of Texas. Galveston.
    May 22, 1917.
    Rehearing Denied June 14, 1917.)
    1. Estoppel <&wkey;91(l) — Grounds.
    Where an order for foreclosure sale of property of a nursery company ordered the sale of lands and nursery stock to be made separately, and that the sale of the lands must be made subject to the right of the mortgagor to remove the nursery stock at any time, the plaintiff, by excepting to the court’s order and preserving, to itself the right to assert the claim in a different proceeding, agreed that the title of the nui'sery stock should not pass by the sale of the land, and acquiesced in the provision in the order that the mortgagor might remove it from the land.
    [Ed. Note. — For other cases, seo Estoppel, Cent Dig. § 257.]
    2. Appeal and Error &wkey;>82(5) — Foreclosure . —Review—Judgments Appealable.
    The order of the court that the lands and nursery stock thereon be sold separately in effect decided that the nursery stock was personal property, and determined the rights of the parties, and hence was a final and appealable judgment.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 479.]
    3. Mortgages @^579 — Foreclosure — Review-Questions Concluded.
    A decision on appeal that the plaintiff in the foreclosure proceedings, who purchased the lands, could not enjoin the removal of such stock, which ho had expressly agreed might be done, does not involve or decide whether the nursery stock was in fact personal property.
    [Ed. Note. — For other cases, see Mortgages, ■Cent. Dig. § 1656.] ,
    4. Mortgages &wkey;s491 — Right oe Mortgagor" to Sever Personalty — Exercise by Court.
    Where mortgagor was entitled to sever personal property on the land, the court may cause such severance in foreclosure proceedings against the land.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1434-1437.]
    5. Mortgages <S=^133 — Lien—Nursery Stock.
    If it was not intended by the parties, in giving and accepting trust deeds, that nursery stock on land conveyed should become a permanent acquisition to the soil, such stock would be personalty, and would not be affected by lien of trust deed.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 260, 264, 265.]
    6. Mortgages &wkey;>133 — Lien — Nursery Stock.
    Under the rule that annual crops, whether growing or ready for harvesting, are regarded as personal property, and are not subject to a mortgage which does not specifically include them, and that they may be severed by the mortgagor at any time prior to destruction of his title by sale, nursery stock on land conveyed by trust deed, which' had no value unless transplanted and sold annually, was personal property, and not subject to the lien of the trust deed, although such stock could in fact remain in ground longer than one year.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 260, 264, 265.]
    7. Mortgages <&wkey;186(5) — Lien — Evidence —Sufficiency.
    On intervention in receivership proceedings by a mortgagee, who was purchaser at foreclosure proceedings, to secure the application of the proceeds of the sale of nursery stock on t.he mortgaged land to the balance of his foreclosure judgment, evidence held to show that it was the intention of the parties that such nursery stock should remain personal property.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by the Colonial Land & Loan Company against Paul W. Joplin, receiver of the Alvin Japanese Nursery • Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    See, also, 184 S. W. 537.
    Bryan & Bryan, of Houston, for appellant. Sam Bradley Fogle, of Houston, for appellee.
   GRAVES, J.

Appellant Loan Company, on July 5, 1915, became, through purchase and assignment, the successor to the Lumberman’s National Bank of Houston in the ownership of a judgment rendered by the trial court against appellee Joplin, as receiver of the Alvin Japanese Nursery Company for over $29,000, secured by long-standing deed of trust liens upon the lands of that company upon which its nursery and nursery stock was situated. As part of this judgment,. foreclosure of the trust deed liens upon these lands had been ordered, and direction made that they be sold in due course of the receivership, and, after its purchase thereof, appellant Loan Company, -after intervening in the receivership, asked the court to order a sale of the. lands so covered by its judgment lien. This was done, and commissioners were first appointed to sell all the Nursery Company’s property, both nursery stock and land together, at private sale; but the court refused to confirm, a sale made in this manner, and later, on December 10, 1915, ordered the sale of the lands and the nursery stock to be made separately, that of the lands to occur on the first Tuesday in January, 1916, and to be made subject to the right of the receiver to remove the nursery stock at any time prior to March 1, 1916, thus in effect holding the nursery stock ■to' be personal property, and not subject to the Loan Company’s judgment lien upon the lands. The original liens, thus merged into the judgment lien by the foreclosure, had been given back in 1909 and in 1914, and covered the lands on which the nursery stock was then and at all material later times situated, but did not specify nor make any. reference to the nursery stock.

In January, 1916, when these lands were sold under this order, appellant Loan Company bought them in on its judgment at a price which left a balance still due it on the judgment of something over $10,000. It had escepted to the court’s order of December 10, 1915, separating the lands and the nursery stock and directing separate sales of each, and thereby preserved to itself the right to assert the claim, which forms the sole basis of this suit and this appeal therein, that the proceeds of the sale of the nursery stock-should be subjected to its judgment lien and applied toward payment of the $10,000 balance due on the judgment. The Loan Company, however, in thus excepting to the order of December 10th, and so preserving its right in a different proceeding to press the claim involved in the case now at bar, had agreed that the title to the nursery stock should not pass by the sale of the lands, and had acquiesced in the provision therein that the receiver might remove it from the lands at any time prior to March 1, 1916; nor did it appeal from that order, but, after confirmation of the sale to it of the lands in January, 1916, it filed suit for an injunction to restrain the receiver from- selling or removing the nursery stock, as per the recited provisions of the December 10, 1915, order. This court, in affirming the trial court’s order refusing that injunction, said:

“In his order refusing the application for injunction the trial judge states that the injunction was refused because he was of opinion that the nursery stock was not a part of the realty, and therefore not subject to appellant’s lien, but that, if it could bo considered a part of the realty, the injunction should be granted. We think it clear that the injunction was properly refused, regardless of the question of whether appellant has a lien on the nursery stock to secure the payment of the balance of its judgment. The agreement of appellant, recited in the order of sale, before set out, that the title to the nursery stock should not pass by the sale of the land, and its acquiescence in the order of the court ‘that the sale of the land upon which the nursery stock is situated shall be made subject to the right of the receiver or his assigns to remove the nursery stock at any time prior to March 1, 1916,’ is a complete answer to appellant’s claim of a right to enjoin the sale or removal of the nursery stock. Appellant cannot claim that the title to the nursery stock passed to it by its purchase of the land under the terms of the order of salo before set out. The only right that it preserved to itself in said order was the right to assert the claim that the proceeds of the sale of the nursery stock should be subjected to its lien, and it cannot, in violation of the terms of the order jander which it purchased the land, enjoin the sale and removal of the nursery stock. If appellant was not satisfied with the terms of the order of sale, which required the land and nursery stock to be sold separately, and denied its claim of lien upon the nursery stock, it should have appealed therefrom. Having acquiesced in the order of sale, it is bound by its terms, and the receiver cannot be enjoined from selling or removing the nursery stock.”

See Loan Company v. Joplin, 184 S. W, 538, 539.

After affirmance of the refusal of injunction against the sale, the nursery stock was sold by appellee Joplin as such receiver, pursuant to the order of December 10, 1915, for $2,050. Appellant Loan Company, by motion filed in the trial court under its intervention in the general receivership, then moved the court to authorize and direct appellee receiver to pay over this $2,050 to it, to be applied on the balance due on its judgment. That motion having been denied, the Loan Company duly perfected this appeal therefrom to this court.

The' first question presented is that raised by appellee as to the jurisdiction of this court to entertain the appeal. The suggestion is that the order overruling the motion was no such final judgment of the district court as might be appealed from, under Revised Statutes, arts. 2078, 2079. We overrule the contention, and hold that this court has jurisdiction. The judgment of the court, that appellant did not have a lien upon the nursery stock, and was therefore not entitled to the proceeds of the sale of same, was a final judgment, so far as this particular matter was concerned. The controversy was between the appellant and the appellee, as receiver; the judgment finally determined appellant’s right, and we think it could be appealed from. Fagan & Osgood v. Bogle Ice Machine Co., 65 Tex. 324; Trust Co. v. National Bank, 89 Tex. 329, 34 S. W. 736.

Upon the merits of this appeal, the sole question presented for our determination' is thus stated by the Loan Company in its brief as follows:

“By its two assignments of error the appellant raises the one and only question, in the case; i. e., whether or not the nursery stock owned by the Alvin Japanese Nursery Company became and was such a part of the land in and on which the nursery stock was growing that it became subject to the appellant’s deed of trust lien upon the land.”

After a most careful consideration of the ease, we conclude that the view of the learned trial judge was correct, and that the nursery stock was not such a part of the land as to become subject to the Loan Company’s deed of trust lien.

Neither can we agree with appellee that this question was decided upon the appeal from the order refusing the injunction above quoted from. Upon the contrary, a careful reading of that opinion and of the extracts from it above quoted will show that this court rested its decision of that appeal upon another ground; that is, that the Loan Company could not enjoin the doing of what it had expressly agreed- might actually be done. While it thus expressly held unnecessary to the decision of that case the determination of the question now before us, the court did go on to discuss it in the following language:

“We deem it proper to say that, in our opinion, the question of whether the nursery stock on the land is subject to appellant’s lien depends upon the intention of the parties at the time the trust deed was executed. * * *
“If the evidence justifies the conclusion that at the time the mortgage was executed it was contemplated by the parties that the mortgagor should have the right each year to sell the nursery stock without accounting to the mortgagee for the proceeds of such sales, and that this right had been exercised by the mortgagor continuously since the execution of the mortgage, we think it should be hold that it was the -intention of the parties that the nursery stock placed or grown on the land was to be regarded as personal property, and not subject to the mortgage. Hutchins v. Masterson, 46 Tex. 561, 26 Am. Rep. 286.
“It is a settled rule of decision in this state that crops grown upon land covered by a mortgage are personal property of the mortgagor, and not subject to the mortgage. Willis v. Moore, 69 Tex. 628, 46 Am. Rep. 284.”

In these last-quoted paragraphs we think this court not only stated the dominating considerations upon which, under our decisions, the character of the property here involved, whether real or personal, is to he determined, but also cited the two leading cases in which our Supreme Court authoritatively announced the rule that obtains in Texas. Whatever may be the rule in other jurisdictions, with us neither annual crops, whether growing or standing in the field ready for harvesting, nor anything else actually annexed to the land and not intended by the parties to its being put there to become a permanent accession to the freehold, constitute a part of the realty, but are regarded as personal property; and as such the title thereto remains in the maker of a mortgage upon the land, which does not by specific provision include them, and he may sever them in law or in fact at any time prior to the destruction of his title by sale under his mortgage. No sale under the mortgage, and therefore no extinguishment of the mortgagor Nursery Company’s title, having occurred at the time the court, through the receiver, in September, 1914, took charge of and henceforth stood in its place as to its property, no good reason occurs to us as to why the court could not cause the severance in this instance, and thereby do the same thing the mortgagor might have done.

The first of the above-stated rules of law was declared by our Supreme Court in Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, and the other in Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286, supra, and both pronouncements are still the law in Texas, having been reaffirmed by that and other of our courts a number of times.

If, therefore, under the evidence and conditions shown here, it was not intended by the parties, in giving and accepting the trust deeds, that the nursery stock should become a permanent accession to the soil, or if it is to be considered as in the nature of a crop produced by annual labor, and consequently subject to the same rule of law, it. was personalty, and not affected by the trust deed liens.

That under both suppositions its character was fixed as personalty, we think, is quite free from doubt. There is really no dispute as to what the evidence was upon the question of the intention of the parties toward the nursery stock at the time the loans were made, but the viewpoints of the litigants here differ as to its effect.

Appellant contends that it shows an intention to make a permanent acquisition to the freehold by having a nursery stock as a whole or an entity in the land, which, despite the contemplated current sale from season to season in due course of the business of such part of it as was ready for the market, still as a fixture constituted it part of the realty. While, upon the other hand, the appellee insists that both Mr. Arai, of the Nursery Company, and Mr. Carter of the bank, intended and understood that the nursery stock should .be sold and removed in the regular course of the company’s business as a nurseryman, and that such mutually con-. templated severance and use constituted its only value, since it would not only be without value if left permanently upon, but would also cause depreciation in the value of, the realty. Mr. Carter testified:

“We did not have any agreement with the Alvin Nursery Company, or any one representing it, that the nursery stock, or whatever was growing on the land, was not to be subject to our mortgage. Nothing was said that I know of. I do not think anything was said, because we naturally supposed that anything that is attached to the ground there is part of the real estate. We understood that, if he put nursery stock on there, he would be selling it out in the due course of business. * * * As I recall it, there was no agreement in regard to, or statement made as to what was to be done with, this nursery stock; but I just understood that the nursery business would be continued, and that they would be buying and selling and producing, and I supposed that whatever nursery stock was in the ground at the time our mortgage was foreclosed would be subject to the mortgage. Nothing was said about it on either side. We felt satisfied that the effect of our taking a mortgage was that way.”

Mr. Arai testified:

“There is now on the ground very little of the nursery stock which was there at the time the mortgage was given to the Lumberman’s National Bank. There was no agreement between me and the representative of the Lumberman’s Bank, with whom the loan was negotiated, that the nursery stock should remain on the ground. There was no agreement as to whether or not the nursery, stock could be sold in the regular course of trade, or anything of that kind. * * * Of course, if tie trees remain permanent, it is not nursery stock. By nursery stock we mean we remove it ns we sell it, but orchard trees, that moans that it remains there, and when I spoke of nursery trees, always it was meant to sell it through the proper channels of business. In November there was about 75 per cent, of the stock could be sold to the retail trade, and about 90 per cent, or over to the wholesale trade. About 50 per cent, of the nursery stock had had the roots cut in November, 1915, and were simply setting in place there to be taken up when needed. If the nursery stock were left in exactly the same condition that it ia now, and nothing was sold off, but it was taken care of as it should be fdr another year, some of it would he unsalable — figs and peaches and plums and citrus trifoliata — by being left in the ground for another year. There would be a probable loss of 30 per cent, of the stock; that is, if it would be allowed to stay on the farm from November, 1915, until the next November. Taking care of it as it should be taken care of, hut without selling any of it, the stock would be less valuable by 70 per cent, than it was in November, 1915. Nursery -stock has no value unless it is transplanted and sold. If the nursery stock was left too long on the ground, and planted too close to grow in, it would be a detriment to the land, and it would have to be thinned out. These trees, planted too close together, .won’t do anything at all, and when we planted' those in the nursery in rows, we intended to remove and sell them, and that is the regular way in which nursery stocks are handled.”

How this no'ndiffering testimony from both sides to a common understanding, intent, and purpose could, under the above-stated rule of law, have any other effect than to fasten upon this property the character of personalty, rather than of realty, we find ourselves unable to understand; especially so, since it afiirmativeíy appears that no restriction Whatever was placed upon the mortgagor’s right from time to time to sell the nursery stock, and, without accounting therefor to the mortgagee, to appropriate the proceeds to its own use and benefit. Nor do we deem the citation of further authority upon the point necessary; but it may not be inappropriate to say that we have become convinced that the broad rule upon this subject, as stated by Mr. Leonard A. Jones, in the fifth edition of his work on the Law on Mortgages of Real Property (volume 1, par. 434; p. 350), referred to by this court in the opinion above quoted from, and now relied upon by appellant as supporting its' contention here, has not been followed in this state. And that the same rule of law applies to- the nursery stock, under all the circumstances and conditions shown here, as does to crops produced by annual labor within the meaning of the rule stated in Willis v. Moore, we think is equally clear; nor do we think the mere fact that some parts of the stock, as, for example, the trees, are not so ephemeral as the ordinary annual crops, and may remain in the ground longer than one year, strips it of analogy to such crops; the fact nevertheless remains, and appears, from the evidence quoted, that for the purpose of the nursery business the entire stock was quite short-lived, and, if allowed to stay in the ground for even one year beyond the intended time for its removal, would not only itself very greatly deteriorate in value, but would injure the land as well. It further appeared that it had no value unless transplanted and sold, and that in November, 1915, prior to the proceedings above recited relating to its sale, about 95 per cent, or more of the entire stock had so far matured that it could be sold in due course of the nursery business to one class or the other of the trade; moreover, about 55 per cent, had been cut around the roots and left ready to be taken up when needed, leaving only about 45 per cent, of the whole undisturbed and still growing in the ground at that time.

Under these facts, we think the same reasons given by the courts for holding matured crops, ungathered and ready for the harvest, personal property, also apply with equal force to this nursery stock. Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591; Ellis v. Brigham, 150 S. W. 602; Heckt v. Dettman, 56 Iowa, 679, 7 N. W, 495, 41 Am. Rep. 131. The conclusions stated necessitate the overruling of both assignments and an affirmance of the judgment; and it is so ordered.

Affirmed.
      <E=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes