author: BREWSTER, Justice.

text:
    A. Donald DAVIES, Bishop Episcopal Diocese of North Texas, Appellant, v. Milton MEYER, County Judge, et al., Appellees.
    No. 17647.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 3, 1975.
    Rehearing Denied Nov. 7, 1975.

      Golden, Potts, Boeckman & Wilson, Claude R. Wilson, Jr., and David Herndon, Dallas, for appellant.
    McCreary & Huey, and Robert M. Huey, Austin, for appellees.
   OPINION

BREWSTER, Justice.

A. Donald Davies, Bishop of the Episcopal Diocese of North Texas, plaintiff, filed this suit against the County Judge of Hood County, Texas, the Tax Assessor-Collector of Hood County, the four Commissioners of Hood County, the Granbury Independent School District, and the Tax Assessor-Collector of the Granbury Independent School District, defendants, seeking a declaratory judgment declaring that the plaintiff’s 155 acre tract located in Hood County that is known and operated as “Camp Crucis” is exempt under Texas law from ad valorem taxes.

At the conclusion of a non-jury trial, the trial court rendered judgment decreeing and declaring that the 155 acres of land involved is not exempt from ad valorem taxation by the State of Texas, by Hood County, and by the Granbury Independent School District, save and except the home located thereon that is used as a dwelling place for the minister, along with one acre of land, and the open air chapel that is located thereon, along with one acre of land, which two acres referred to were declared by the decree to be exempt from ad valorem taxation by the defendants herein.

This appeal is being made by the plaintiff from that decree.

We affirm.

There is only one point of error, it being that the trial court erred in failing to hold that all of Camp Crucis (155 acres) is exempt from ad valorem taxation under Article 7150, V.A.C.S. as an actual place of religious worship.

We overrule that point.

This is apparently the first Texas case dealing with the question of whether or not the entire area of a tract of land that is used as a church camp is “a place of religious worship” within the meaning of the law involved and for that reason exempt from being taxed for ad valorem taxes.

The law controlling the decision of the question is contained in the Texas Constitution, Art. 8, See. 2 and in Art. 7150, V.A. C.S.

The Texas Constitution, Art. 8, Sec. 2(a) provides: “All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax; but the legislature may, by general laws, exempt from taxation . actual places of religious worship, also any property owned by a church or by a strictly religious society for the exclusive use as a dwelling place for the ministry of such church or religious society, and which yields no revenue whatever to such church or religious society; provided that such exemption shall not extend to more property than is reasonably necessary for a dwelling place and in no event more than one acre of land; . and all laws exempting property from taxation other than the property mentioned in this Section shall be null and void.” (Emphasis added.)

Article 7150, Sec. 1, V.A.C.S., provides: “The following property shall be exempt from taxation, to-wit: 1. Schools and Churches. — Public school houses and actual places of religious worship, also any property owned by a church or by a strictly religious society, for the exclusive use as a dwelling place for the ministers of such church or religious society . . . and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and which yields no revenue whatever to such church or religious society; provided that such exemption as to the dwelling place for the ministers shall not extend to more property than is reasonably necessary for a dwelling place and in no event more than one acre of land.” (Emphasis added.)

Findings of Fact and Conclusions of Law were filed by the trial court at the request of the plaintiff. The findings of fact have not been attacked by any party to the suit, prior to the filing of plaintiff’s supplemental brief that is hereinafter mentioned.

Those findings of fact and conclusions of law are as follows:

“FINDINGS OF FACT

“(1) Camp Crucis is a 155 acre tract of land with approximately thirty buildings, the title of which is held in the name of A. Donald Davies, Bishop of the Episcopal Diocese of North Texas. The camp is located in Hood County and the Granbury Independent School District and is used primarily in the summer months for a camp for children for periods from one to ten days.

“(2) There are nineteen cabins, a dining hall, minister’s residence, two shower houses, two recreational buildings, one gathering building, an open-air chapel with a covered altar, a home for the caretaker, and a crafts building, two staff buildings, a swimming pool, tennis courts, grass volleyball and basketball courts and a baseball field. There is no roofed or inclosed church building.

“(3) The camp is administered by Reverend Hume W. Reeves who lives in the minister’s residence on the grounds. He conducts church services in the City of Granbury each Sunday at the Granbury Episcopal Mission.

“(4) Camp Crucis is non-profit and is subsidized by the Episcopal Diocese. Fees are charged the campers, but they are not sufficient to defray all costs of operation.

“(5) The camp is used almost exclusively for camp purposes, although it has been used by the Optimists Club and a Square Dance Group uses it once a week during the winter months.

“(6) Activities at the camp consist of recreation, cj-afts and religious activities.

“(7) During the summer months the camp is used for sixty days for camping purposes. During the remaining months of the year, the camp is often used on weekends for church related activities.

“(8) The primary place where the religious services are held is the open-air chapel which has a covered altar mounted on a concrete slab. The benches for the congregation are fixed to the ground but they are not under cover.

“(9) One acre of land is necessary for air, light, ingress and egress, and decoration for the minister’s residence.

“(10) One acre of land is necessary for air, light, ingress and egress, and decoration for the open-air chapel with covered chapel.

“CONCLUSIONS OF LAW

“(1) The burden of proof rests upon the claimant of exemption from ad valorem taxes.

“(2) The open-air chapel with a covered altar is an actual place of religious worship and is exempt from ad valorem taxation under the provisions of Article VIII § 2 of the Texas Constitution and Article 7150 V.A.T.S.

“(3) The minister’s residence is exempt from ad valorem taxation under the provisions of Article VIII § 2 of the Texas Constitution and Article 7150 V.A.T.S.

“(4) The remaining buildings and land are not actual places of religious worship and minister’s residences and are therefore not exempt from ad valorem taxation.

“(5) The remaining 153 acres of land, after setting aside 1 acre each for the minister’s residence and the open air chapel, is not exempt from ad valorem taxation.”

Texas courts in construing the constitutional and statutory provisions purporting to grant exemptions from taxation give them a strict and narrow construction and will not extend an exempt status to property unless the controlling law clearly shows this to have been intended. River Oaks Garden Club v. City of Houston, 370 S.W.2d 851 (Tex.Sup., 1963); City of Houston v. South Park Baptist Church of Houston, 393 S.W.2d 354 (Houston, Tex.Civ.App., 1965, error ref.), and Hilltop Village, Inc. v. Kerrville Independent School Dist., 426 S.W.2d 943 (Tex.Sup., 1968).

Exemptions from taxation are never favored and in construing laws providing for exemptions from taxation all doubts are resolved against exemption. Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926 (Tex.Com.App., 1924, op. ad.); Methodist River Oaks Apartments, Inc. v. City of Waco, 409 S.W.2d 485 (Waco, Tex.Civ.App., 1966, ref., n. r. e.) cert. den., 389 U.S. 848, 88 S.Ct. 75,19 L.Ed.2d 117; McClure v. City of Texarkana, 435 S.W.2d 599 (Texarkana, Tex.Civ.App., 1968, er. dism.), and City of Amarillo v. Love, 356 S.W.2d 325 (Amarillo, Tex.Civ.App., 1962, ref., n. r. e.).

In deciding the question before us here we are governed by the holdings in the cases just cited above. There are many other cases by Texas Courts in addition to those that we have cited which hold the same way.

The burden is on one claiming exemption from taxation to prove the facts that clearly show that his property is entitled to be exempt from taxation. Malone-Hogan Hosp. Clinic Found, v. City of Big Spring, 288 S.W.2d 550 (Eastland, Tex.Civ.App., 1956, ref., n. r. e.) and Trinity Methodist E. Church v. City of San Antonio, 201 S.W. 669 (San Antonio, Tex.Civ.App., 1918, writ ref.).

The constitution and statute involved do not provide in so many words for the exemption from taxation of land owned by a church or other religious organization on which the owner operates a summer camp.

To be exempt from taxation the 155 acre tract involved here had to constitute within the meaning of the constitutional and statutory provisions involved an “actual place of religious worship.”

If the plaintiff’s evidence did no more than make out a fact issue on that question, then that fact issue has been finally determined against the plaintiff by the trial court’s decree.

In order to set aside the trial court’s judgment on this appeal the plaintiff must show that he introduced evidence during the trial that proved as a matter of law that the entire 155 acre tract was “an actual place of religious worship” within the meaning of the constitutional and statutory provisions involved.

We hold that plaintiff has not met that burden.

Texas courts have held that “actual places of religious worship”, as the phrase is used in the constitutional and statutory provisions involved, means not only the church building wherein the services are held, but includes as much of the grounds adjacent to the building as is reasonably necessary for the proper occupancy, use and enjoyment of the building. City of Houston v. Cohen, 204 S.W.2d 671 (Galveston, Tex.Civ.App., 1947, ref., n. r. e.), and Trinity Methodist E. Church v. City of San Antonio, supra. The phrase does not include the ground belonging to the church that is near to or adjacent to the building that is not reasonably necessary for the proper occupancy, use and enjoyment of the building. The holdings in those cases are as near as Texas courts have come to defining the phrase “actual places of religious worship.”

We hold that when the law established in the above cited cases is applied in construing the applicable constitutional and statutory provisions, the plaintiff did not prove that his entire 155 acre camp site is entitled to be exempt from taxation as being “an actual place of religious worship” within the meaning of such provisions.

The plaintiff has cited us to several out of state cases in support of his argument that the land on which a summer camp, such as the one involved here is operated, is exempt from taxation. Those cases are: Morning Cheer v. Board of County Com’rs, 194 Md. 441, 71 A.2d 255 (1950); Flathead Lake Methodist Camp v. Webb, 144 Mont. 565, 399 P.2d 90 (1965), and North Idaho Jur. of Episcopal Ch., Inc. v. Kootenai Co., 94 Idaho 644, 496 P.2d 105 (1972).

Because of the differences in the law in some of the states involved in those cases from the Texas law involved here and because the facts involved in some of those cases are different from those involved here, we do not consider any of those cases as persuasive of how we should decide this case.

We realize, of course, that a strong argument can be made to the effect that the land on which a church camp such as Camp Crucis is operated should be exempt by law from taxation. But that is not the question that we have to decide in this case. Our question is simply: Does the Texas Constitution and Statutes as they are now worded provide for the exemption from the payment of ad valorem taxes of land on which a Church camp is operated in the manner that the plaintiff operates Camp Crucis?

We hold that the applicable law in Texas, as it now exists, does not exempt the land on which such a church camp is operated from the payment of ad valorem taxes.

On the tenth day after this case was argued to this Court, the appellant has filed a motion for leave to supplement his brief. We have, under Rule 431, T.R.C.P., permitted him to file such supplemental brief. In it appellant advances four additional points of error. His second point of error there advanced is that there is no evidence to support the trial court’s conclusion of law that “ ‘(T)he remaining buildings and lands are not actual places of religious worship and minister’s residences and are therefore not exempt from ad valorem taxation.’ ” His third point of error is that the trial court’s conclusion of law just referred to is so against the great weight and preponderance of the evidence as to be clearly wrong. His fourth point of error that he now advances is that the trial court erred in failing to find as a fact that all of Camp Crucis is an actual place of religious worship. In his fifth point of error he contends that the trial court erred in making the conclusion of law referred to in his second point of error (referred to above) because there are no findings of fact to support the conclusion.

We have considered all of these points of error and overrule each of them. What we have heretofore said in the opinion disposes of them.

The judgment is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    L. P. BRADSHAW, Appellant, v. Allene NAUMANN, Appellee.
    No. 12287.
    Court of Civil Appeals of Texas, Austin.
    Oct. 8, 1975.
    Rehearing Denied Nov. 5, 1975.

      Harold G. Kennedy, Austin, for appellant.
    Bruce Waitz, Waitz, Bretz & Collins, San Antonio, for appellee.
   O’QUINN, Justice.

Oscar S. Bradshaw and his wife, Ollie Bradshaw, owned between them 356.41 acres of land in Burnet County consisting of three tracts, on which they lived and carried on farming and ranching pursuits. Two of the tracts, comprising 262 acres, Ollie Bradshaw owned as her separate property, and the remaining tract of 94.41 acres was community property.

In July of 1952 Oscar and Ollie Bradshaw executed a deed to convey all three tracts to their only son, Louis Preston Bradshaw, to the exclusion of their only daughter, Aliene Bradshaw Naumann, and reserved a life estate in themselves and in the survivor of them. Oscar Bradshaw died late in December of 1960, and thereafter, in September of 1962, Ollie Bradshaw executed a will in which she left her entire estate to her son, L. P. Bradshaw. Ollie Bradshaw died about nine years later, in August of 1971.

This appeal is from a judgment entered in district court in which three lawsuits were consolidated for trial. In 1971, prior to the death of Ollie Bradshaw, she and her son L. P. Bradshaw granted to Herman Neusch and Carefree Living, Inc., an option to purchase the smallest of the three tracts of land, comprising 50 acres, and thereafter brought suit against Aliene Naumann and others. The other defendants later were severed from that action.

After probate of Ollie Bradshaw’s will in September of 1971, Aliene Naumann brought suit against L. P. Bradshaw and also filed contest of her mother’s will in county court, which she later appealed to district court. The consolidation below was of the two actions brought by Aliene Nau-mann and the prior suit Ollie Bradshaw and L. P. Bradshaw brought against Aliene Naumann and others in relation to the Neusch option.

Upon trial the jury found, in response to two special issues, that (1) at the time Oscar Bradshaw executed the deed to his son, L. P. Bradshaw, dated July 30, 1952, he was acting under the undue influence of L. P. Bradshaw or Ollie Bradshaw, and (2) at the time Ollie Bradshaw executed the deed she did not have mental capacity to make a deed. The jury also answered five other special issues favorably to contentions of Aliene Bradshaw Naumann.

The trial court overruled L. P. Bradshaw’s motion for judgment non obstante veredicto and later entered judgment setting aside the deed and in other respects also in favor of Aliene Bradshaw Naumann.

L. P. Bradshaw appeals from the judgment and brings thirteen points of error. We will sustain the first two points of error, which we find present controlling issues, and will reverse the judgment of the trial court.

Under the first point Bradshaw contends that there is no evidence of probative force to sustain the jury’s answer to Issue No. 1 that Oscar Bradshaw was acting under undue influence of L. P. Bradshaw or Ollie Bradshaw, or either of them, at the time he executed the deed of July 30, 1952.

Under the second point appellant contends there is no evidence to sustain the jury’s answer to Issue No. 2 that at the time Ollie Bradshaw made the deed she did not have mental capacity.

The rules guiding determination of the existence of undue influence apply substantially alike to wills, deeds, and other instruments. Rankin v. Rankin, 105 Tex. 451, 151 S.W. 527, 529 (1912); Self v. Thornton, 343 S.W.2d 485, 487 (Tex.Civ.App., Texarkana 1960, writ ref. n. r. e.); Bounds v. Bounds, 382 S.W.2d 947, 950 (Tex.Civ.App., Amarillo 1964, writ ref. n. r. e.). Where the deed, as in this case, is otherwise valid, but is attacked on the ground of undue influence, the burden rests on the party making the attack to plead and prove that the instrument is the product of such influence existing at the very time the deed was executed. Eulenfeld v. Weber, 428 S.W.2d 383, 387 (Tex.Civ.App., Austin 1968, writ ref. n. r. e.); Besteiro v. Besteiro, 65 S.W.2d 759, 761 (Tex.Comm’n App.1933, jdgmt adopted).

Undue influence implies the existence of mental capacity subjected to and controlled by an influence, or power, that is dominant, and the party seeking to set aside a deed on the ground of undue influence must prove: “(1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the [maker of the deed] at the time of the execution of the . . . [instrument]; and (3) the execution of a . . . [deed] the maker thereof would not have executed but for such influence.” Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.Sup.1963); Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914).

It is settled that every case of undue influence must be decided on its own peculiar facts. Pearce v. Cross, 414 S.W.2d 457, 462 (Tex.Sup.1966). In this case we examine the record first to discover whether there is direct evidence tending to support the jury’s finding that Oscar Bradshaw was under undue influence of his wife or his son when he executed the deed in 1952 under which all his wife’s separate property and their smaller community estate was conveyed to their son. There is testimony from witnesses who quoted Oscar Bradshaw as saying that his wife was running him crazy, that if they had an argument he would give in to her, and that if he had not signed the deed there would have been hell, “. . .so much hell around there that he’d have to leave home.”

Appellee concedes that “. . . Texas courts have long held that a testator’s declarations are not competent to show the fact of undue influence,” but urges that Oscar Bradshaw’s declarations were admissible to show the effect of undue influence on his mind. Pearce v. Cross, supra ; Lindley v. Lindley, 384 S.W.2d 676, 682 (Tex.Sup.1964); Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1143 (1914). In Pearce, supra, the Supreme Court quoted with approval a statement of the distinction in 1 McCormick & Ray, Texas Evidence, sec. 894 at 667 (2d ed. 1956):

“Undue influence as an invalidating fact consists of two elements: first, the external, the words or acts of third persons which bring the pressure to bear; second, the internal, the collapse of the testator’s own will, produced by such external conduct. It is held that declarations of the testator, of whatever type, are no evidence of the former but only of the latter element.” (Emphasis by authors).

Direct evidence of the external element is not pointed out by appellee, and we have been unable to discover such evidence in the record. L. P. Bradshaw, Oscar’s son, lived in Ardmore, Oklahoma, and only infrequently visited his father and mother in Burnet County. There was testimony Ollie Bradshaw was a woman of strong will, but no testimony that she forced or influenced her husband to sign the deed they made in 1952. The record does not contain any testimony or other evidence that L. P. Bradshaw asserted undue influence over his father from the son’s residence in Oklahoma, or on visits to Texas.

Appellee contends that there was circumstantial evidence of the actual operation of undue influence on Oscar Bradshaw. Ap-pellee points out the unnatural disposition of the wife’s property and the community estate to one of only two children, although Oscar Bradshaw was quoted by one witness as saying that he “thought a lot” of his daughter, but his son “wasn’t worth the powder it would take to shoot him, and he’d caused them a lot of trouble.” Appellee relies upon the circumstances that one witness related concerning visits to the Bradshaw house when Ollie wanted someone to “talk Oscar into going to sleep.” The witness mentioned that Bradshaw slept on “the back porch,” which actually was a sleeping porch, and told of finding Oscar with too much cover over him, when the weather was cold, and told Ollie she was “going to kill him” with that many quilts over him.

One witness testified that on an occasion Oscar Bradshaw left home for several weeks, and his daughter, at the request of her mother, “hunted the countryside over for ages to find him — and when I say ages, I don’t mean years, but I mean, you know, like days. And I don’t right now know specifically where she found him at, but he had been gone from home some six weeks or two months that nobody could find him and drove until she found her father, and brought him back home with her. Now where she found him, I can’t answer that question, because I really don’t know.”

Appellee contends “that where (1) a husband sleeps on the back porch, (2) his wife nearly suffocates him with blankets, and (3) he runs away from home, it can be inferred that the husband was harrassed [sic] and nagged by his wife,” and that such “observations by third persons are external evidence of undue influence by nagging or harrassment [sic].”

The Supreme Court, in Rothermel, supra, recognized that undue influence may be shown by circumstantial, as well as by direct, evidence. We paraphrase the Court’s statement to apply to deeds as well as wills, since the rules are applicable to both instruments. All of the circumstances must be considered, and if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the maker of the deed and resulted in the execution of the instrument in controversy, the evidence is sufficient to sustain the conclusion. “However,” the Court added, “the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence.” (369 S.W.2d 922)

The first two circumstances relied upon by appellee, that Oscar Bradshaw slept on the back porch and his wife “nearly suffocated” him with covers in bed, are shown by the record to have occurred some eight years after the deed was executed and only a short time before Oscar Bradshaw died. It is undisputed that the back porch was a sleeping porch used by both of them. It is not clear when Oscar Bradshaw absented himself from home for a few weeks, but in that circumstance alone we fail to observe evidence of such nagging or harassment from his wife as to constitute undue influence on Oscar Bradshaw when he executed the deed to their son in 1952. Rip Van Winkle, whose wife nagged him, went away to the mountains. Yet, on awakening, Rip, like Oscar Bradshaw, returned home, though he knew that “A sharp tongue is the only edge tool that grows keener with constant use.” Washington Irving: Rip Van Winkle.

The circumstances relied on as establishing the elements of undue influence fall short of being reasonably satisfactory and convincing in character, and, taken separately or collectively, the circumstances here are equally consistent with the absence of the exercise of undue influence. We hold that there was no evidence of probative force to support the jury’s finding that Oscar Bradshaw acted under undue influence of either his son or his wife in making the deed he and his wife executed on July 30, 1952.

Appellant contends that such evidence as might be relative to Ollie Bradshaw’s mental condition at the time she executed the deed to her son, on July 30, 1952, does not meet the test stated in Lee v. Lee, 424 S.W.2d 609, 611 (Tex.Sup.1968). There the Supreme Court said, “. . . only that evidence of incompetency at other times has probative force which demonstrates that that condition persists and ‘has some probability of being the same condition which obtained at the time of the . . .’” making of the instrument.

The law presumes that the grant- or of a deed had sufficient mental capacity at the time of its execution to understand his legal rights, and for that reason the burden rests on the person seeking to set aside the deed to show lack of mental capacity of the grantor at the time the deed was made. Jackson v. Henninger, 482 S.W.2d 323 (Tex.Civ.App., Austin 1972, no writ). If “a grantor is mentally capable of understanding the details of a conveyance of his property and the consequences resulting therefrom, he has mental capacity to make a deed.” 4 Texas Practice, Lange: Land Titles, sec. 582, at 549 (1961); Pollard v. El Paso National Bank, 343 S.W.2d 909, 913 (Tex.Civ.App., El Paso 1961, writ ref. n. r. e.); Jackson v. Henninger, supra.

In seeking to set aside the deed, appellee offered the testimony of about a dozen witnesses, who testified to visits with Ollie Bradshaw during her lifetime and the things they observed relative to Mrs. Bradshaw at the time. The testimony of six witnesses related to visits with Ollie Bradshaw from eleven to nineteen years after the making of the deed.

Ollie Bradshaw made the deed in 1952, and a little more than ten years later she made a will which, insofar as disposition of her property was concerned, achieved the same end as the deed; that is, to place title in her son, to the exclusion of her daughter. Mrs. Bradshaw died in August of 1971, nine years after making her will.

Three witnesses told of visits with Ollie Bradshaw at her home in 1971, nineteen years after the deed was executed and a short time before Mrs. Bradshaw died at the age of nearly 84 years. These witnesses described a woman advanced in years who was nearly blind, unable to recognize immediately people she had known, and was dirty, with swollen feet, long toenails, sores on her face, living in a house that was unkempt and dirty, and with an old bathtub full of soiled clothes. Yet when one of the witnesses asked Ollie Bradshaw how to reach a mobile home where her son lived, Mrs. Bradshaw gave detailed and accurate directions by which the witness later found the house. The witness testified Ollie Bradshaw did not recognize her, yet admitted under cross examination that she had lost 20 to 25 pounds in weight since the last time Mrs. Bradshaw saw her.

In the course of one visit in 1971 a witness told how Ollie Bradshaw’s daughter repeatedly asked her mother why she had sued her daughter (subsequent to the Neusch option to buy 50 acres). Mrs. Bradshaw, seemingly reluctant to talk in the presence of persons not in the family, replied finally that the suit had been filed by her son and her lawyer. Mrs. Bradshaw also denied she had sold 50 acres of land, when questioned by her daughter, which was literally true, since the transaction was an option to sell, followed by a suit to clear the title of interferences from her daughter and other persons.

Another witness testified to occasions, some eleven years after the deed was made in 1952, that Ollie Bradshaw gave her hen eggs which were not fresh, and the witness expressed the view that Mrs. Bradshaw “wasn’t the smartest person.” In addition to being removed by a substantial number of years from the date of the deed, the incidents related may be regarded as trivial and without value respecting Ollie Bradshaw’s mental capacity to make a deed in 1952.

Two witnesses testified concerning an incident at the Bradshaw home in January of 1952, several months before the deed was made. Two or three women, including Mrs. Bradshaw's daughter, went to the home and found it locked. Ollie Bradshaw was in the house, and when asked what she was doing, Mrs. Bradshaw replied she was feeding the chickens. One witness testified, “. I don’t know how we got in the house, but some way we got the door unlocked, or window, or something . . . and she was feeding her chickens . . . she didn’t want us there at all.”

On this occasion Ollie Bradshaw was in bed fully clothed, with shoes on, and was feeding her chickens. It is not clear whether the witnesses meant Mrs. Bradshaw was throwing feed out a window to chickens, or had small chickens in the house feeding them. In sum, one of the witnesses stated, “She was very unstable.” In 1952 Ollie Bradshaw was 64 years old and on the occasion of the visit in January related by the witnesses she was ill. No testimony was drawn from these witnesses as to Ollie Bradshaw’s capacity to understand the details of the later transaction by which she deeded her property to her son. The testimony given describes an elderly ranch woman, lying in bed in January with her clothes on, feeding some chickens.

This conduct may be unconventional, even eccentric, and, to some, bizarre, but without more, related directly to business understanding and acumen, it has no probative value to show want of mental capacity to make a deed. Even a gratuitous statement that she was “unstable” or that her “mental capacity was not there” can have no more probative value than the factual basis upon which the opinion must rest. Such an opinion is without probative value as it involves a legal definition and a legal test. Carr v. Radkey, 393 S.W.2d 806, 810 (Tex.Sup.1965).

There was some testimony about changes observed in Ollie Bradshaw sometime after she and her husband were involved in an automobile accident occurring sometime prior to the making of the deed. One said she did not seem to be the same when observed, and another stated she did not seem to want to talk. Mrs. Bradshaw suffered a dislocated jaw in the accident, and this injury, coupled with ordinary trauma resulting from an accident, offers a plausible reason for her not seeming the same and not wanting to talk. No effort was made to relate the conduct observed with ability to understand business or the consequences of conveying property to her son. The facts related do not demonstrate that conditions which might be termed unusual, eccentric, or extraordinary had some probability of being the same conditions which obtained at the time Ollie Bradshaw made the deed. The purported defects observed, singly or as a whole, at most were so trivial and superficial as to be without bearing on basic mental capacity.

We have not undertaken to make a complete summary of the testimony of all the witnesses. We have examined the record with care and reviewed all the testimony offered through the contestant’s witnesses. No witness for appellee testified to the effect that the witness formed an opinion as to the mental condition of Ollie Bradshaw on July 30,1952; that the witness was of the opinion Mrs. Bradshaw on that date was of unsound mind; or that on that date she did not have sufficient mental capacity to understand the nature of the business or transaction in which she was engaged. The testimony of expert witnesses was not offered.

It is not a function of the courts or the juries to go further than to determine whether the mental capacity of the maker of a deed measures up to the standard set by the law. Even though the grantor may be aged, infirm, eccentric, and cantankerous, have sores and be personally unkempt, keep a dirty house with feed or clothing piled in the bathtub, lie in bed with her clothes and shoes on, and allow her toenails to grow to great length, nevertheless such person has the right to dispose of her property in any manner she may desire if her mental capacity meets the law’s test. The proper inquiry is the condition of the grantor’s mind on the day the deed was executed and not whether she was unstable, not the smartest person, or even of unsound mind at another time prior to or after the making of the deed.

The contestant has failed to discharge the burden to show that Ollie Bradshaw, on July 30, 1952, did not have the mental capacity to make the deed she and her husband that day executed conveying their property to L. P. Bradshaw.

In sustaining appellant’s points of error one and two, it becomes unnecessary for us to discuss or dispose of the remaining points and the issues presented under them. ■ We hold that under the record there is no evidence of probative force that Oscar Bradshaw acted by reason of undue influence, or that Ollie Bradshaw was without mental capacity, when they executed the deed on July 30, 1952, to L. P. Bradshaw.

The judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing.

Reversed and rendered.


author: TUNKS, Chief Justice.

text:
    Jack I. GAITHER et al., Appellants, v. Robert L. MOODY et al., Appellees.
    No. 1215.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 8, 1975.
    Rehearing Denied Oct. 29, 1975.

      George D. Martin, Harris, Martin, Carmo-na, Cruse, Micks & Dunten, Galveston, Jack I. Gaither, Tulsa, Okl., for appellants.
    V. W. McLeod, McLeod, Alexander, Pow-el & Apffel, Irwin M. Herz, Jr., Phipps, Smith & Herz, Galveston, Will D. Davis, Austin, for appellees.
   TUNKS, Chief Justice.

This is an appeal from a summary judgment for the defendant in a fraud case.

The plaintiff in the trial court was Jack I. Gaither, a shareholder in Western Republic Life Insurance Company, a Texas corporation. The defendant in the trial court was Robert L. Moody. Moody was a director and major shareholder of Western Republic. In 1966 Moody was instrumental in the organization of Security National Life Insurance Company, an Alabama Corporation. Moody also was an officer, director and controlling shareholder of Security National.

In 1967 Western Republic was merged into Security National. Gaither’s shares in Western Republic were voted in favor of the merger. Before the merger the management of Western Republic solicited proxies from its shareholders for the meeting at which a vote was to be had on the proposed merger. In the proxy statement accompanying such solicitation the assets of Security National were represented to have a value of $7,809,953.00. Of those assets a value of $4,240,977 was attributed to the equity of some land which was owned by the company in Brazoria County, Texas.

There was evidence that Moody had, in 1964, bought the equity in the Brazoria County land for $123,000. It was then subject to an outstanding lien of about $800,-000. When Security National was organized Moody conveyed to it the equity in land in payment for all but six of its 200,000 issued shares.

The proxy statement sent to the shareholders of Western Republic did not reveal that Moody had, a few years earlier, acquired for $123,000 the property which was valued in the statement as a $4,000,000 asset of Security National. Section 7.19 of the Texas State Board of Insurance Regulations, effective June 16, provides:

“Sec. 7.19. False or misleading statements. 1. No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting, or other communication, written or oral, containing any statement which at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.” [cf. Act. Sec. 14(a); Reg. 240.14a-9 (FBR Sec. 9)] (Emphasis added) Tex.Rev.Civ.Stat.Ann. art. 581-33 provides:
A. Any person who
(2) Offers or sells a security (whether or not the security or transaction is exempt under Section 5 or 6 of this Act) 3by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made not misleading (when the person buying the security does not know of the untruth or omission, and who in the exercise of reasonable care could not have known of the untruth or omission) is liable to the person buying the security from him, .

At the time of the merger Moody stood in a fiduciary relationship to both corporations, and, in the solicitation of their proxies, to the minority shareholders of Western Republic. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.Sup.1963). To be entitled to a summary judgment Moody had the burden of proving as a matter of law that there was no fact issue as to one or more of the essential elements of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). Under those tests we hold that Moody did not discharge his burden of negativing, as a matter of law, fraud on his part. The trial court erred in granting his motion for summary judgment.

Reversed and remanded.


author: COULSON, Justice.

text:
    PINEMONT BANK, Appellant, v. Charles L. DuCROZ et al., Appellees.
    No. 1220.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 8, 1975.
    Rehearing Denied Oct. 29, 1975.

      Robert J. Adam, Adam, Adam & Anderson, Stanley B. Binion, Reynolds, White, Allen & Cook, Houston, for appellant.
    Leonard Passmore, Austin, for amicus curiae.
    Jack L. Andrus, Jr., Andrus & Jay, Pasadena, for appellees.
   COULSON, Justice.

This is an appeal from a summary judgment granted the plaintiffs in their claims for usury. Charles L. DuCroz, Charles A. DuCroz and Pauline DuCroz, were each granted judgment for $101,466.08 under the Texas Usury Statute. Pinemont Bank (defendant) appeals. We reverse and remand. In September of 1970, a note was executed payable to Pinemont Bank in the amount of $180,000 bearing interest at 13¼% per annum. The note bears seven signatures, five on its face and two on the back. The signatures on the lower right side are Coastal Plains Development Corp., Charles L. DuCroz, President; and Micrea, Inc., Jack Alder, President. The signatures on the lower left side are Charles L. Du-Croz; Edward Leroy Schmalz; and Jack Alder. The signatures on the back are C. A. DuCroz and Mrs. C. A. DuCroz.

The note states:

As hereinafter provided after date, I, we, and each of us, jointly and severally, promise to pay to Pinemont Bank, or order, the sum of ONE HUNDRED EIGHTY THOUSAND AND NO/100 _($180,000.00) _Dollars, together with interest thereon from date until maturity at the rate of 13x/4% per centum per annum.

Plaintiffs brought suit under Tex.Rev. Civ.Stat.Ann. art. 5069, section 1.06, which provides:

(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.

The maximum interest rate, with which we are here concerned, on a loan which an individual may be charged is fixed by Tex. Rev.Civ.Stat.Ann. art. 5069, section 1.02 at 10% per annum. The maximum corporate rate is set at 1½% per month by Tex.Rev. Civ.Stat.Ann. art. 1302, section 2.09 (Supp. 1970).

Here the note charges 13¼% interest. This exceeds the 10% maximum set by statute for individuals, but is well within the maximum corporate interest rate allowed by law. Under these circumstances only the individuals signing the note in the capacity of individuals could possibly maintain a claim for usurious interest under the Texas Usury Statute. Three of the signers have prosecuted this suit.

Pinemont claims the note was not properly before the trial court because there was no certified or sworn copy of the note introduced and, therefore, summary judgment could not be granted. We disagree. A copy of the note was attached to the pleadings of plaintiffs and incorporated by reference in sworn affidavits on motion for summary judgment and was thereby properly before the trial court. In the absence of an exception by the opposing party, this procedure is a sufficient basis upon which a motion for summary judgment can be granted or denied. Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1965); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962).

An award of $101,466.08, being twice the usurious interest contracted for of $50,733.04, was given to each of the three plaintiffs for the total recovery of $304,-398.24 against Pinemont. The multiple recovery is claimed to be an erroneous application of Tex.Rev.Civ.Stat.Ann. art. 5069, section 1.06. We agree.

Article 5069, section 1.06 is a usury statute, penal in nature, and is to be strictly construed. Home Savings Association of Dallas County v. Grow, 514 S.W.2d 160 (Tex.Civ.App.—Dallas 1974) aff’d at 522 S.W.2d 457 (Tex.Sup.1975). The statute provides for forfeiture “to the obligor twice the amount of interest contracted for” (emphasis ours), Article 5069, section 1.06 supra. We hold that a strict construction of the statute requires a retention of its singular phraseology in that “obligors” may not be substituted for “obligor”. The legislative intent was to punish lenders contracting for usurious interest by imposing a penalty of twice the usurious interest upon them for each obligation entered into. Here there could be only one contract for usurious interest, even though more than one party could be liable thereon. The maximum forfeiture which could be awarded is twice any interest contracted for that may be usurious.

Pinemont argues that the note having been paid, the trial court should have entered judgment in accordance with the facts as to what actually transpired between the parties and not what could have transpired under the note’s terms. We disagree. The question of usury is to be determined as of the time of the inception of the contract. Southwestern Investment Company v. Hockley County Seed & Delinting, Inc., 511 S.W.2d 724 (Tex.Civ.App.—Amarillo), writ ref’d n. r. e. per curiam, 516 S.W.2d 136 (Tex.Sup.1974). Transactions between the parties after execution of the note do not necessarily govern the note’s usurious nature.

Summary judgment may be entered only where as a matter of law no material question of fact exists. Great American Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965).

Five signatures on the note are unqualified individual signatures and may leave those signing personally obligated under the law of Tex.Bus. & Comm.Code Ann. Section 3.403(b)(1) (1968) which provides:

An authorized representative who signs his own name to an instrument (1) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity .

However, the question here goes to the nature of the personal obligations of the signers. The bank claims that they signed as guarantors of the corporate loan and would introduce parol evidence to establish their claim. Tex.Bus. & Comm.Code Ann. Section 3.415(c) (1968) provides:

As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof, (emphasis ours).

Edward Leroy Schmalz, one of the signers of the note, testified that he was familiar with Pinemont’s loan processes and that normally the officers of corporations securing loans are required to sign the corporate notes both as corporate officers and as individuals, however, the officers are not individually liable, but liable only on the corporation’s behalf. Furthermore, he testified that as to this note it was understood that the interest rate being charged was not usurious interest because it was being charged to the corporation and not the individuals. Other summary judgment evidence indicates that this was the understanding between the parties to the note. This is sufficient evidence to present disputed fact questions as to the capacity in which plaintiffs signed. Whether the note is usurious depends on a construction of the note in accordance with the nature of the parties’ obligations as represented by their signatures. The existence of these fact questions precludes a granting of a summary judgment in this case.

Reversed and remanded.


text:
    Cleaves McDANNALD, Appellant, v. LEAGUE CITY, Appellee.
    No. 1193.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 8, 1975.
    Rehearing Denied Oct. 30, 1975.
    George R. Pain, Farris, Pain & Horne, Houston, Will Wilson, Austin, Anthony J. P. Farris, Houston, for appellant.
    I. A. Lerner, LaMarque, George J. Prap-pas, Houston, for appellee.
   TUNKS, Chief Justice.

This is an appeal from a judgment ordering appellant, Cleaves McDannald, to pay delinquent ad valorem taxes to appellee, City of League City. Appellee brought suit in the 56th District Court of Galveston County, and appellant counter-claimed that the assessment and collection of the taxes were illegal because appellee’s incorporation and subsequent adoption of its home rule charter were accomplished by means of fraud, rendering the city’s incorporation and all subsequent municipal acts void. The appellee filed a plea in bar as to appellant’s counterclaim alleging that appellant’s counterclaim presented a collateral attack on the validity of a municipal incorporation, which attack may be maintained only by the state in a quo warranto proceeding, and also that League City’s incorporation, boundaries, and subsequent annexations of territory have been validated by act of the Legislature.

Appellant stipulated that he did not contest the computation of the taxes, and that his counter-claim was his only defense. Therefore, having sustained appellee’s plea in bar, the trial court entered judgment against appellant in the amount of $14,-271.36 taxes, penalty and interest.

The City of League City was incorporated pursuant to Tex.Rev.Civ.Stat.Ann. art. 966 (1925), which authorizes the incorporation of municipalities containing six hundred or more inhabitants. According to the procedure provided in Tex.Rev.Civ.Stat.Ann. arts. 1134 and 1136, an application for incorporation was filed with the County Judge of Galveston County on November 10, 1961, and the county judge ordered an election to be held on December 9, 1961. Both the petition and the election order specified the town’s population as being between 5,000 and 10,000 inhabitants and the area to be incorporated as 8.9 square miles. This original incorporation of 8.9 square miles of area was purportedly authorized by Article 971, Tex.Rev.Civ.Stat.Ann., which limits to 9 square miles the total area which may be included by the original incorporation of a city of 5,000 to 10,000 inhabitants. On March 27,1962 League City adopted a home rule charter and thereafter annexed additional territory by municipal ordinances on April 19, 1962 and February 10, 1966. Part of appellant’s property was included within the city by virtue of the original incorporation, and the remainder was annexed through the 1962 annexation ordinance.

The adoption of a rule which would permit any individual against whom taxes were assessed or a fine imposed to challenge the validity of the corporate existence of a home rule city by a simple allegation of fraud would create a chaotic condition. Such a rule would permit an individual to take action which would place in question the validity of municipal bonds that have already been issued and would make it virtually impossible for cities to finance their programs in the future.

The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    The STATE of Texas, Appellant, v. Joe Lee McMAHON, Jr., et al., Appellees.
    No. 6439.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 8, 1975.

      John L. Hill, Atty. Gen. of Tex., David M. Kendall, First Asst. Atty. Gen., R. V. Smith, Watson C. Arnold, Les King, Asst. Attys. Gen., Austin, for appellant.
    Richard D. Naylor, Pecos, for appellees.
   OPINION

OSBORN, Justice.

This is a condemnation case. The trial Court entered judgment based upon a jury verdict awarding the landowner damages in the amount of $4,069.00 for 13.38 acres of land in the taking and $8,209.00 for damages to the remaining 215 acres of land which is used as irrigated farm land in Reeves County. We affirm.

The parties stipulated to all issues except the fair market value of the property taken and the damages, if any, to the remainder. Four witnesses testified upon trial of the case. The resident engineer for the Texas Highway Department described the highway project and the location of the 13.38 acres being taken. Joe Lee McMahon, Sr., a prior owner and father of the owner, and operator of the farm, testified as to the farming operation and expressed his opinion that the part taken had a value of $5,003.00 and that damages to the remainder were $8,800.00. Bob Dean, a local real estate appraiser, insurance agent and abstracter, testified that the part taken had a value of $4,069.00 and that the damages to the remainder were $8,209.00. The State’s appraiser valued the land taken at $3,257.00 and he found no damage to the remainder. The jury’s answers were identical with the opinions and conclusions expressed by Bob Dean.

The State complains of the trial Court’s failure to strike the testimony of Mr. McMahon and Mr. Dean concerning land values because their opinions were based upon the contributory value of an adjacent tract of land with an irrigation well on it which was used to water the property involved in this condemnation proceeding. All of the testimony established that the land involved in this case was an irrigated alfalfa farm with one water well located in the southeast corner of the farm and another well located on a single acre of land some distance east of this farm. Admittedly the water from the second well was essential to a successful operation of the land as an irrigated farm and to the land values placed upon the subject property as an irrigated farm.

The undisputed general rule is “ * * * that where land is actually divided into separate lots, or parcels, but in the aggregate, is being devoted to a unity of use, that unites all the parcels into an entity of use, all the parcels or lots will be considered as an entirety of use for purposes of estimation of damages to the remaining lands of a landowner, where a portion of the entirety of ownership has been taken for public use.” Rayburn, Texas Law of Condemnation, Sec. 160(1) p. 455. The State contends there was no unity of ownership nor contiguity shown. We cannot agree. Mr. McMahon testified that when he purchased the farm, he also bought the one acre tract to the east with the additional water well and had a right to cross the intervening land to his farm. He also leased and operated the adjoining tract which was crossed by the pipeline from the well to the farm and subsequent to the condemnation actually purchased the adjoining tract. There is no question but that the second well had been used to irrigate the farm for several years prior to this condemnation proceeding. The evidence showed a unity of purpose, and a unity of ownership, and the evidence of value based upon the contributing value of the second well was properly admitted by the trial Court. Gossett v. State, 417 S.W.2d 730 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.) and State v. Lock, 468 S.W.2d 560 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.) are not applicable. Points of Error One and Two are overruled.

The State next contends that the trial Court erred in overruling objections to evidence of land value given by Bob Dean which were based upon supposedly comparable sales which were of improved land, when the subject property was unimproved land. Mr. Dean used three comparable sales in support of his conclusion as to the value of the subject property. The first sale from Joe Bradley to the Veteran’s Land Board had no improvements other than fences and irrigation ditches, but did include one-fourth of the minerals and ten acres of cotton allotment. The second sale from Joe Bradley to W. F. and Erma Leigh included a house, garage, pump house, irrigation ditches and a cotton allotment. The third sale from Ethel Schwable to Marshall Neatherlin did not include any improvements but did include 80 mineral acres and nearly 100 acres of cotton allotment. The rule is clear that sales of real estate with improvements are not comparable where the land condemned is unimproved. State v. Chavers, 454 S.W.2d 395 (Tex.1970); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954); Blossman v. State, 482 S.W.2d 937 (Tex.Civ.App.—Corpus Christi 1972, no writ). The reverse is also true. Westmoreland v. Beaumont Independent School District, 524 S.W.2d 323 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). We conclude that the testimony as to the second sale was not admissible because it clearly involved improved property with several buildings including a residence, and the property being condemned contained only a water well and pipes to operate an irrigation system. But since the other two comparable sales basically involved unimproved irrigation farm land, we conclude that reversible error has not been shown and no harm resulted from the inadmissible testimony. City of Longview v. Boucher, 523 S.W.2d 274 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); Westmoreland v. Beaumont Independent School District, supra. Points of Error Three, Four and Five are overruled.

The State next contends the trial Court erred in overruling its motion to strike the opinion testimony of Mr. McMahon and Mr. Dean because they admitted that there was no damage to the remainder when operated as a row flood system and that their opinions were based solely upon a preference for a sprinkler irrigation system and their opinions involved the value of personalty used in such irrigation which was not taken nor condemned. The evidence established that this farm could not be effectively irrigated with a ditch and row flood system and that in February, 1971, nearly two years before the taking, the landowner purchased a sprinkler system which would effectively irrigate all but just a few acres of the entire farm. This operation resulted in an annual alfalfa crop of 12 to 14 tons per acre, which everyone concluded was the highest and best use of the subject property. Even after the taking the landowner was still able to effectively irrigate his crop, except for about 15.7 acres on the north and west edges of the farm. In State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), the Court stated the rule as follows:

“Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value.”

In Brazos River Conservation and Reclamation Dist. v. Costello, 169 S.W.2d 977 (Tex.Civ.App.—Eastland 1943, writ ref’d w. o. m.), the Court said:

“In order to enable the jury to determine the depreciation of the remainder, the parties have the right to introduce evidence of everything which would tend to affect the value of the land in the estimation of a proposed purchaser or would tend to make it more or less valuable to the present owner.”

We conclude that the testimony is not subject to the complaint made. It had the effect of showing how the farm land could be most effectively operated, the damages resulting from the taking and how land values were affected by the type of irrigation used. City of Lubbock v. Thiel, 352 S.W.2d 799 (Tex.Civ.App.—Amarillo 1961, writ ref’d n. r. e.); Southwestern Public Service Company v. Spurlock, 378 S.W.2d 134 (Tex.Civ.App.—Amarillo 1964, no writ). Points of Error Six through Eleven are overruled.

The next group of Points contend that the trial Court erred in receiving testimony from Mr. Dean as to sales which were not comparable and that his testimony was hearsay because the sales were given as direct evidence of value. As to whether a given sale is comparable in size and location to the subject property in condemnation, trial courts have a very broad discretion to decide what evidence may be received concerning other sales. Holcombe v. City of Houston, 351 S.W.2d 69 (Tex.Civ.App.—Houston 1961, no writ); Cohn v. State, 438 S.W.2d 860 (Tex.Civ.App.—Houston (1st Dist.) 1969, writ ref’d n. r. e.). Sales of land twenty to twenty-five miles from the subject property have been properly considered as comparables. Trinity River Authority v. Hutchings, 437 S.W.2d 383 (Tex.Civ.App.—Beaumont 1969, no writ). Likewise, courts have permitted evidence of sales as comparable even though there was substantial variance in the size of the referable sales and the condemned property. Texas Power and Light Company v. Lovingood, 389 S.W.2d 712 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); State v. Hamman, 377 S.W.2d 727 (Tex.Civ.App.Houston 1964, no writ).

In this case the record reflects that all of the sales data provided by Mr. Dean was offered in support of his opinion as to the value of the subject property and for no other purpose. The testimony was admissible on that basis. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962). Points of Error Twelve, Thirteen and Fourteen are overruled.

The next two Points of Error contend that Mr. McMahon was not qualified to express an opinion as to market value. Having previously owned the subject property and having farmed the land since 1967, the witness testified that he was familiar with and knew the market value of farm land in Reeves County. This established his qualification to give an opinion. Ft. Worth & D. C. Ry. Co. v. Hapgood, 210 S.W. 969 (Tex.Civ.App.—Amarillo 1919, no writ). Points of Error Fifteen and Sixteen are overruled.

The next two Points urge that there is insufficient evidence to support the jury’s answers and that such answers are against the great weight of the evidence. We have reviewed the entire record, considered all the evidence, and conclude that the findings are supported by the evidence and not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Points of Error Seventeen and Eighteen are overruled.

The Appellant next contends that there is no evidence to support the jury findings. Having considered only that evidence favorable to the verdict, Point of Error Nineteen is overruled. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The last Point suggests that the cumulative effect of all of the alleged errors requires a new trial. Having concluded that there is no reversible error in the record and that there is no cumulative error such as would have denied the Appellant a fair trial, Point of Error No. Twenty is overruled. State v. Curtis, 409 S.W.2d 622 (Tex.Civ.App.—Waco 1966, no writ).

The judgment of the trial court is affirmed.


author: BISSETT, Justice.

text:
    SOUTHWEST PLAZA APARTMENTS, INC., et al., Appellants, v. CORPUS CHRISTI BRICK & LUMBER COMPANY, Appellee.
    No. 1007.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 9, 1975.

      Leo A. Kissner, Houston, for appellants.
    Ronald D. Karchmer, Auforth, Nebrat, Keas & McCrury, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment rendered against the defendants following a trial where neither they nor their attorney were present. Corpus Christi Brick & Lumber Company, plaintiff, instituted suit against Southwest Plaza Apartments, Inc., F. H. Horn and H. D. Horn, defendants, on August 6, 1974. Southwest Plaza Apartments, Inc., was sued on an open account. F. H. Horn and H. D. Horn were sued on alleged written guarantees wherein they personally guaranteed payment to plaintiff of all charges for goods, materials and merchandise sold by it to Southwest Plaza Apartments, Inc. Each of the defendants filed an answer that consisted of a special exception and a general denial. All of the defendants were represented by the same attorney.

The case was tried to the court without a jury on February 12, 1975, and after evidence relating to plaintiff’s cause of action was introduced, a joint and several judgment against the defendants in the amount of $68,511.55 was signed and rendered on February 14, 1975. Neither the defendants nor their attorney were present at the trial. Defendants timely filed a motion for new trial, which, after a hearing thereon, was overruled by the trial court. The defendants have perfected an appeal to this Court.

The only questions presented by the appeal are whether the motion for new trial alleged, and the evidence presented at the hearing proved, prima facie, that the failure of defendants and their attorney to appear at the trial was or was not the result of conscious indifference to the defense of the lawsuit, and whether or not the defendants set up a meritorious defense to plaintiff’s cause of action. We have reviewed the record in its entirety. The pleadings and the evidence on the issue of whether the failure to appear was or was not the result of conscious indifference need not be discussed inasmuch as the order overruling the motion for new trial must be affirmed because defendants failed to set up a meritorious defense.

It is well settled that a motion for new trial is addressed to the discretion of the trial court, and the court’s action thereon will not be disturbed on appeal in the absence of an abuse of such discretion. Mitchell v. Bass, 26 Tex. 372 (1862); Texas Employers’ Insurance Association v. Waldon, 392 S.W.2d 509 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.); Hartford Accident & Indemnity Company v. Gladney, 335 S.W.2d 792 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.); Gowan v. Reimers, 220 S.W.2d 331 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.).

The correct rule applicable to the case at bar is stated in Craddock v. Sunshine Bus Lines. Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939, opinion adopted) as follows:

“ . . .A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

That rule applies to judgment nihil dicit as well as to default judgments. Strode v. Silverman, 217 S.W.2d 454 (Tex.Civ.App.—Waco 1949, writ ref’d); Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739 (Tex.Civ.App.—Amarillo 1973, no writ); Industrial Instrument Corporation v. Form Forge Co., Etc., 427 S.W.2d 955 (Tex.Civ.App.—Austin 1968, no writ).

The rule stated in Craddock, was restated and clarified by the Supreme Court in Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup.1966). In construing the requirement that the defaulting or absent defendant set up a meritorious defense, the Court, speaking through its then Chief Justice Calvert, said:

“ . . . This does not mean that the motion (for new trial) should be granted if it merely alleges that the defendant has ‘a meritorious defense’. The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense. . . . ” (Emphasis by the Supreme Court)

There are no allegations in the motion for new trial of any facts which in law would constitute a defense to the cause of action asserted by plaintiff. At the hearing on the motion for new trial, the defendants’ attorney and the defendant F. H. Horn each testified. The remaining defendants did not testify.

Defendants contend that the testimony of F. H. Horn sets forth a meritorious defense because there existed a failure of consideration as to Southwest Plaza Apartments, Inc., “the principal obligor”, in that it was not liable for the total obligation made the basis of plaintiff’s suit, and there existed a failure of consideration to F. H. Horn and H. D. Horn, “the guarantors”, because they could not be held liable on their guaranty without a consideration flowing to the principal obligor. The contentions cannot be sustained. There is no pleading of failure of consideration as a defense to plaintiff’s action in the motion for new trial, and no facts are alleged in defendants’ motion which, in law, would constitute “failure of consideration” as a defense to plaintiff’s action. Furthermore, there is no evidence which establishes, prima facie, that defendants have such a defense. The other contentions made by defendants have no merit. They go only to asserted vagueness, indefiniteness, omissions and deficiencies in plaintiff’s petition. They have no bearing on the motion for new trial and will not be noticed further.

F. H. Horn, in addition to testifying as to the reasons why he was unable to be present at the trial, also testified: he was not a partner of Southwest Plaza Apartments, Inc.; he was not a shareholder in that corporation; he did not receive any consideration for any agreement with plaintiff for the Southwest Plaza Apartments project; and he was not a party to the project. Those statements, which were introduced in evidence over plaintiff’s objections, are not statements of facts which in law would relieve either of the defendants F. H. Horn and H. D. Horn from liability on their written guarantees to plaintiff. F. H. Horn’s statement that he did not receive any consideration for any agreement with plaintiff is not a statement of fact, but, at best, is a mere conclusion. Ivy v. Carrell, supra.

Tested by the foregoing rules, the defendants failed to discharge their burden of “setting up a meritorious defense”. Moreover, there is no evidence that the motion for new trial was “filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff”. The trial court did not abuse his discretion in overruling the motion for new trial. Defendants’ point is overruled.

The judgment of the trial court is affirmed.


text:
    Joe EZZELL, d/b/a Ezze Mart, Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION et al., Appellees.
    No. 17669.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 10, 1975.
    Rehearing Denied Oct. 31, 1975.

      Titus T. Mitchell, Wichita Falls, for appellant.
    John L. Hill, Atty. Gen., Austin, for ap-pellee, Texas Alcoholic Beverage Commission (No brief filed).
    Charles A. Finnell, Wichita Falls, for ap-pellee, Trinity Baptist Church.
    Vaughan, Gilliland, Cates & Rowton, and James M. Beggs, Dallas, for amicus curiae, Texas Alcohol Narcotics Education, Inc.
   OPINION

BREWSTER, Justice.

Joe Ezzell, d/b/a Ezze Mart, made an application for a wine and beer off-premises permit. The premises where the wine and beer were to be sold are located in the City of Wichita Falls, Texas. The neighboring Trinity Baptist Church contested Ezzell’s application. The County Judge of Wichita County entered an order denying the application. The applicant then appealed to the District Court which also denied the application. The District Court decree stated: “The Court . . . finds that there was and is substantial evidence to support the finding of the County Court, and that the Application should be Denied because of the general welfare, health, peace, morals and safety of the people and on the public sense of decency. This Court further finds that the evidence shows that the proposed premises would be located within 300 feet of the Trinity Baptist Church.”

The District Court decree was based on these two reasons. This appeal is from the decree of the District Court.

We affirm.

The appellant’s first point of error is that the trial court erred in finding that the Trinity Baptist Church was within 300 feet of the proposed location of the business that was to have this wine and beer retailers off-premises permit.

We overrule that point.

In considering and acting on applications for licenses such as the one involved here the County Judge and the Alcoholic Beverage Commission (formerly the Liquor Control Board) are performing an administrative function. Stone v. Texas Liquor Control Board, 417 S.W.2d 385 (Tex.1967), and State v. Bush, 151 Tex. 606, 253 S.W.2d 269 (1952).

The statute involved is Article 666-25a, Penal Code (Texas Liquor Control Act) which reads as follows:

“The Commissioners’ Court of any county in the territory thereof outside incorporated cities and towns and the governing authorities of any city or town within the corporate limits of any such city or town may prohibit the sale of alcoholic beverages by any dealer where the place of business of any such dealer is within three hundred (300) feet of any church, public school or public hospital, the measurements to be along the property lines of the street fronts and from front door to front door and in direct line across intersections where they occur.”

The statute just referred to is merely an enabling statute. Before it would become unlawful to sell alcoholic beverages from a business located within 300 feet of a church within the city limits of Wichita Falls it was necessary for the Wichita Falls City Council to enact an ordinance prohibiting such sales.

During the District Court trial involved here,' no evidence was introduced by anyone relating to the issue of whether or not, prior to the time the permit was denied, the City Council of Wichita Falls had enacted an ordinance such as the one referred to in the last paragraph. The appellant did not offer any evidence to show that the City Council had not enacted such an ordinance and no evidence was offered by anyone tending to show that such an ordinance had been enacted by the City.

If the City Council of Wichita Falls had enacted such an ordinance and if the distance from the front door of the proposed store building for which the permit was sought to the front door of the neighboring Trinity Baptist Church, when measured in the manner provided for in the statute, was less than 300 feet, then the administrative Board’s order denying the permit would have been proper on that ground alone.

Courts do not take judicial notice of city ordinances. They must be proved up during a trial like other facts. See 23 Tex. Jur.2d 81, Evidence, Sec. 12.

Quite a bit of the evidence that was introduced during the District Court trial was on the issue of determining whether or not the front door of the Church was located less than 300 feet from the front door of the building from which the wine and beer were to be sold. The record makes it appear that all parties involved just assumed, without making proof thereof, that Wichita Falls had an ordinance in effect that prohibited the issuance of the permit if the distance between the two doors is less than 300 feet.

The following plat shows the location of the store building where the permit was to be used with reference to the location of the neighboring Trinity Baptist Church and the measurements of the distances that are involved.

To determine the distance from the front door of the Church to the front door of the store involved wherein the beer and wine were to be sold the trial court held that you should measure from point A on the plat to point B (the property line of the street front) which was a distance of 68 feet 5 inches; then measure north along the property line to point C which point is the nearest point on Christine Street to the door of the store (a distance of 56 feet 9 inches); then measure from point C in a straight line to the door of the store, which is point D on the plat and which last measurement is 89 feet. The distance from Church door to store door, when the distance is figured in the manner above indicated, is 214 feet and 2 inches.

The appellant contends that when the distances from door to door are measured as provided for in the statute you go from point A (the Church door) to point B (property line) 68 feet 5 inches; then measure from point B to point E on the plat (111 feet); then go along the property line of the street front from point E to point F (directly in front of the store door) a distance of 89 feet; and then measure from point F to point D (the store door) a distance of 40 feet 3 inches. When these measurements are added the distance is 308 feet and 8 inches. We disagree with appellant’s contention.

We hold that the measurement of 214 feet and 2 inches, as found by the trial court, is correct. The manner of measuring that distance that was approved by the trial court is the manner provided for by the statute for making such measurements. See Robinson v. City of Dallas, 193 S.W.2d 821 (Austin Tex.Civ.App., 1946, writ ref.) so holding. The hypothetical case referred to in that opinion illustrates the fact that absurd results could result from measuring the distances in the manner suggested by appellant.

The record made during the District Court trial thus shows that the distance from Church door to store door, when measured as provided for by the statute, is less than 300 feet.

If the City Council of Wichita Falls had, prior to the entry of the order denying the permit, enacted an ordinance (as authorized by the statute) prohibiting the sale of alcoholic beverages in any business that is located within 300 feet of a church, then the County Judge’s order denying the permit would be valid on that ground alone.

This brings us down to this question: Who had the responsibility or burden at the District Court trial of proving whether the City Council had or had not enacted an ordinance, prior to the entry of the administrative order appealed from, prohibiting the sale of alcoholic beverages in any business that is located within 300 feet of a church?

This appeal is governed by the substantial evidence rule. Texas Liquor Control Board v. Cervantes, 333 S.W.2d 466 (San Antonio Tex.Civ.App., 1960, no writ hist.). The administrative order appealed from is prima facie valid and is presumed to be a legal and valid order. Texas Liquor Control Board v. Cervantes, supra; Gibraltar Savings & Loan Association v. Falkner, 371 S.W.2d 548 (Tex.1963); and 33 T.L.R. 722.

The burden of proof on the appeal to the District Court is upon the one attacking the administrative order to show that it is invalid. Texas Liquor Control Board v. Cervantes, supra; Gibraltar Savings and Loan Association v. Falkner, supra; Rodgers v. Texas Liquor Control Board, 449 S.W.2d 292 (Corpus Christi Tex.Civ.App., 1970, no writ hist.); Board of Firemen’s Relief & Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181 (1951); and Korndorffer v. Texas State Board of Medical Examiners, 448 S.W.2d 819 (Houston 14th Dist., Tex.Civ.App., 1969, rev. in part and aff. in part in Tex., 460 S.W.2d 879).

Since the administrative order appealed from is presumed to be a legal and valid order, if neither party to the appeal to the District Court introduces any evidence the administrative order must be upheld, because the presumption in its favor has not been overcome. Korndorffer v. Texas State Board of Medical Examiners, supra, and Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035 (1942).

We hold that the burden in this case was upon appellant, the person seeking to set aside the administrative order being appealed from, to introduce evidence at the District Court trial showing that the City Council of Wichita Falls had not, prior to the denial of the permit, enacted an ordinance prohibiting the sale of alcoholic beverages from a building that was located within 300 feet of the front door of a church.

If appellant had proved that the City Council had not enacted such an ordinance, there would then have been no valid basis for denying the permit because of the mere fact that it would authorize the sale of alcoholic beverages within 300 feet of a church.

Since appellant did not meet his burden of thus proving that the order appealed from was invalid, the presumption that the order being appealed from is valid and legal must prevail, and we must affirm the case. The situation is the same as if no evidence at all had been introduced by either party at the District Court trial. Evidence was introduced on one element showing that the Church and store were less than 300 feet apart, but no evidence was introduced on the other element of whether or not the City Council had passed the ordinance referred to. Since there was no proof that such an ordinance had not been enacted, we must presume that the order appealed from is valid.

A case very closely in point is the case of Vrocher v. Texas Liquor Control Board, 350 S.W.2d 349 (Dallas Tex.Civ.App., 1961, no writ hist.). The appellant there had applied for a retail beer license and the County Judge had denied the application. The District Court upheld the County Judge’s order. The following is from the opinion in that case at page 353: “Since the burden was on appellants in the District Court to show by evidence introduced in the District Court that the order of the County Judge was not supported by substantial evidence, it was necessary for appellants to negative every one of the statutory grounds upon which the County Judge was required to refuse a license, or upon which he might have refused a license. This appellants failed to do.” (Emphasis added.)

When the rules announced in the Vrocher case and in the other cases above cited are applied to the case before us, we are required to affirm the order here appealed from.

This is true because one ground upon which the County Judge could have properly denied the application is (1) that the City Council had enacted an ordinance, as they were enabled to do by Art. 666-25a, Penal Code, prohibiting the sale of alcoholic beverages from premises that were located within 300 feet or less of a church, and (2) the premises from which the alcoholic beverage was to be sold under such permit was located less than 300 feet of a church. Under the holdings in the above cases the burden was on appellant here to negative the existence of the grounds upon which the County Judge could have refused to grant the permit. Appellant did not meet that burden.

Appellant urges one other point of error. We overrule that point without discussion because the matters that we have heretofore discussed standing alone make it necessary that we affirm the District Court decree.

Judgment appealed from is affirmed.


text:
    Leonard PREWITT, Executive Secretary of the Teacher Retirement System, et al., Appellants, v. Pamela S. SMITH, Appellee.
    No. 12315.
    Court of Civil Appeals of Texas, Austin.
    Oct. 15, 1975.

      John L. Hill, Atty. Gen., John Reeves, Asst. Atty. Gen., Austin, for appellants.
    John P. Jones, Domestic Relations, Travis County, Austin, for appellee.
   O’QUINN, Justice.

By judgment in a divorce action entered in August of 1973 George Michael Smith was ordered to pay the sum of $300 per month for child support. Thereafter Smith terminated his membership in the Teacher Retirement System of Texas, and in October of 1974 made application for refund of his accumulated contributions to the System. In compliance with Smith’s application, the System caused to be issued a state warrant dated January 8, 1975, in the sum of $3,656.51, drawn by the Comptroller of Public Accounts on the State Treasury.

This appeal is from an order of temporary injunction issued by district court of Travis County to enjoin Leonard Prewitt, in his capacity as executive secretary of the Teacher Retirement System, from honoring any warrant of the state “paying out any sum of money” to George Michael Smith. The trial court’s judgment also extended a temporary restraining order to prevent the State Treasurer from honoring and paying the warrant.

The trial court acted without authority to interfere with administrative officers and agents of the state in the lawful exercise of duties committed to them by law. The judgment will be reversed and the temporary injunction dissolved.

This action was brought by counsel for the domestic relations division in Travis County in behalf of Pamela S. Smith, former spouse of George Michael Smith. After the trial court entered its temporary restraining order directing Prewitt to issue a “stop-payment” order and enjoining Prewitt and the State Treasurer from paying or honoring a state warrant, the Attorney General made a special appearance in compliance with Rule 120a, Texas Rules of Civil Procedure, in behalf of the state officials, who at that time had not been served with citation.

The Attorney General moved to dissolve the temporary restraining order and challenged the jurisdiction of the court to restrain or enjoin state officials performing in their official capacities. The Attorney General pleaded that under provisions of the Texas Education Code contributions to the Teacher Retirement System refunded to members are exempt from “garnishment, attachment, or any other process whatsoever.” (Sec. 3.07, V.T.C.A., Texas Education Code). The trial court on January 29, 1975, denied the special appearance, found it had jurisdiction to maintain the status quo, and extended the temporary restraining order.

From time to time thereafter the temporary restraining order was extended until hearing was obtained on the temporary injunction on March 4, 1975, after which this appeal was perfected.

The duties of the state officials involved in this action are stated in statutes, as indicated. Prewitt’s duties, as executive secretary of the Teacher Retirement System, are:

“Whenever any person ceases to be a member of the retirement system, except by death or retirement ... he shall be paid, after applying in writing . all accumulated contributions in his individual account in the member savings account; his account shall be closed, and his membership (if not previously ended) shall be terminated.” (Emphasis supplied) (Sec. 3.52(b), Texas Education Code)

The duty of the State Treasurer with respect to payment of warrants is:

“The Treasurer shall countersign and pay all warrants drawn by the Comptroller on the Treasury which are authorized by law. No money shall be paid out of the Treasury except on the warrants of the Comptroller . ” (Emphasis supplied) (Article 4371, Vernon’s Anno.Tex.Sts., Acts 1931, 42nd Leg., p. 396, ch. 242, see. 1).

It is undisputed that the state warrant issued to George Michael Smith was authorized by law and was validly drawn on the Treasury by the Comptroller of Public Accounts as required by law.

The Constitution of Texas, Article II, section 1, provides that the powers of government “shall be divided into three distinct departments” and prohibits one department from exercising the power properly “attached to either of the others.”

It is settled law in this state that the courts do not have jurisdiction to enjoin or otherwise interfere with executive or administrative officials of the state in the lawful exercise of duties and functions committed to them by law. State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 276 (1939); McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 694 (1955); Turner v. Bennett, 108 S.W.2d 967 (Tex.Civ.App., Beaumont 1937, no writ). See also 43 C.J.S. Injunctions § 122, for statement of the general rule: “Public officers will not be restrained from the payment or other disposition of public funds where in so doing they are acting lawfully and within the authority vested in them.”

Appellee contends that Section 3.07 of the Texas Education Code, which the Attorney General urges prevents refunded contributions to the retirement system from being seized by garnishment, attachment, “or any other process whatsoever,” was repealed by implication through later enactment of Section 14.05(c) of the Texas Family Code which provides, “The court may order the trustees of a spendthrift or other trust to make disbursements for the support of the child to the extent the trustees are required to make payments to a beneficiary who is required to make support payments . . ” (Emphasis supplied)

Appellee’s contention is without merit. It is clear from its terms that the provisions of Article 14.05(c) are limited to “spendthrift or other trust” of like nature and have no application to funds of public retirement system held by state officials for the benefit of members of the System. To give the statute the construction insisted upon by appellee would place the law in conflict with section 67, Article XVI, of the Constitution authorizing the Legislature to establish systems of retirement and providing that “the assets of a system are held in trust for the benefit of members and may not be diverted.” (Adopted by electorate April 22, 1975). Funds of a retirement system are part of a member’s compensation or wages which are not subject to garnishment. Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, 741 (1928); Article XVI, sec. 28, Constitution of Texas.

The trial court on five occasions extended the temporary restraining order between entry of the original order in January and hearing on temporary injunction on March 4, 1975. In its order of temporary injunction in March the court further extended the temporary restraining order as to the State Treasurer. Each extension ordered was over objection by the Attorney General. The court’s order of March 12, 1975, further extending the temporary restraining order as to the State Treasurer, converted the temporary' restraining order to a temporary injunction as a matter of law, and the Treasurer’s appeal from that order has been entertained by this Court. Alpha Petroleum Company v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 367 (Tex.Comm’n App.1933, opinion in its entirety adopted by Sup.Ct., 59 S.W.2d 372).

The judgment of the trial court is reversed. Judgment is rendered dissolving the temporary injunction and all other restraining orders which may be in effect and which would interfere with or prevent payment of Trust and Suspense Warrant No. E-317193 as drawn by the Comptroller of Public Accounts on the State Treasury.

Reversed and rendered.


text:
    J. P. FUQUA, Appellant, v. P. V. FUQUA, Jr., et al., Appellees.
    No. 1226.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 15, 1975.
    Rehearing Denied Nov. 5, 1975.

      Billy M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellant.
    W. T. Bennett, Kenneth H. Keeling, Bennett, Keeling & Haggard, Huntsville, Robert D. Brewton, Navasota, Eugene J. Pit-man, DeLange, Hudspeth, Pitman & Katz, Houston, for appellees.
   COULSON, Justice.

This is a suit for a declaratory judgment. The issue is whether a deed executed and placed in escrow by a grantor may be delivered to the grantee upon grantee’s compliance with the terms of the escrow after grantor’s death where the earnest money contract provides that the form and content of the instruments must be approved by the grantee’s attorney.

J. P. Fuqua sued his brothers, P. V. Fu-qua, Jr., and Floyd Fuqua, and Selected Lands Corporation (SLC) seeking a judgment declaring invalid a deed to 50 acres from Birdie H. Fuqua, a widow, the mother of the Fuqua brothers, to SLC and declaring that J. P. Fuqua was the sole owner of the land or, in the alternative, declaring that J. P. Fuqua was the sole owner of the proceeds from the sale of the land. The trial court refused to set aside the deed and. held that SLC was the owner of the land. We affirm. The suit for the proceeds of the sale was severed and is not before this court.

P. V. Fuqua, Sr., and wife, Birdie H. Fuqua, executed a joint and mutual will dated September 26, 1962. The will devised, among other things, a 200 acre tract as a life estate to the survivor with the remainder in fee to J. P. Fuqua. P. V. Fuqua, Sr. died August 6, 1966. The will was not, then, offered for probate as the will of P. V. Fuqua, Sr. nor was its terms followed by his heirs at law. Rather, on August 16, 1966, Birdie H. Fuqua, P. V. Fuqua, Jr., Floyd Fuqua and their wives, conveyed in fee to J. P. Fuqua, a specific 150 acres out of the 200 acre tract. On the same day, the remaining 50 acres was conveyed in fee to Birdie H. Fuqua by the three brothers and their wives. At the same time, P. V. Fuqua, Jr., Floyd Fuqua and their wives executed a quitclaim deed to J. P. Fuqua of all their future interests in the 50 acre tract.

On October 10, 1972, Birdie H. Fuqua executed a contract of sale to SLC of the 50 acre tract. On November 14, 1972, Mrs. Fuqua executed a deed conveying the 50 acres to SLC and deposited it in escrow. Six days later Mrs. Fuqua died. On December 1, 1972, SLC complied with the contract of sale and the terms of the escrow and obtained delivery of the deed from escrow.

The trial court correctly decreed that SLC is the owner of the 50 acres and that the deed from Birdie H. Fuqua to SLC should not be set aside. In Texas, upon performance of the conditions upon which a deed has been placed in escrow and the delivery of the deed, the title acquired relates back to the date when the deed was placed in the escrow. Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166 (1938). Mrs. Fuqua’s death occurred after she delivered the deed into escrow. Her death did not divest SLC of title to the land once SLC complied with conditions of the escrow and the deed was delivered to SLC. The rule is that the death of the grantor while grantor’s deed is held in escrow does not invalidate the instrument upon its subsequent delivery. Where, after the death of the grantor, the grantee performs the conditions of the escrow agreement, grantee is entitled to delivery of the deed, and grantee’s title relates back to the date of the original deposit of the instrument in escrow. Annot., 117 A.L.R. 69, 74 (1938).

J. P. Fuqua claims that the contract of sale is illusory because it called for SLC’s attorney to approve the closing papers and if he did not then the contract was to be considered void. It is apparent from the contract that approval or disapproval of the closing papers by SLC’s attorney was to be exercised in good faith. The contract of sale was valid and specifically enforceable.

We find the judgment correct on the foregoing basis and need not consider the court’s conclusions of law. Therefore, J. P. Fuqua’s complaints concerning the court’s conclusions of law are overruled.

Affirmed.