text:
    ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. FORT WORTH LAUNDRY CO.
    No. 12816.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1933.
    McGown & McGown, B. E. Godfrey, and H. L. Logan, Jr., all of Fort Worth, for appellant.
    Y. R. Parker, of Fort Worth, for appel-lee.
   CONNER, Chief Justice.

The appellant insurance company sued the appellee laundry company for the sum of $299.58, alleged to be due as unpaid premiums on a policy of insurance issued by the appellant company on the 12th day of October, 1929, and extending, as we infer, throughout the ensuing year. The policy in terms covered certain property and also hound the Insurance company to compensate the employees of the laundry company in accord with the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.). The laundry company had numerous employees including drivers of its delivery trucks,# but no separation or classification of the different character of employees appears on the face of the policy. The premiums for covering workmen were based on percentages of the pay roll of the employees, the policy providing, among other things, that upon each quarter of the year following its issuance the insurance company had the right to examine the bopks of the laundry company for the purpose of determining the amount of the premiums.

The evidence shows that one P. H. Edwards had been providing the laundry company with insurance for several years but that on the occasion in question, presumably upon the expiration of a previous policy, secured the policy in question from the appellant company, not generally represented by him. It is undisputed that all sums due as premiums under the policy, except those in question, were regularly paid, the deficiency in payment of premiums on account of the laundry drivers alone being involved in this suit.

The laundry company defended upon the ground that its drivers were not employees within the meaning of the policy but mere, soliciting and delivery agents who were compensated by commissions upon charges made for work done and delivered and that the laundry company had at all times within the knowledge of Edwards refused to take out insurance covering such drivers and that Edwards knew at the time of soliciting the policy in question that the laundry company would not accept a policy covering insurance for such drivers’ injuries.

The evidence further shows that Edwards at the time of applying for the policy in question failed to disclose the knowledge he had of the laundry company’s previous refusal to receive policies covering its drivers and knew that the said company would refuse to knowingly receive a policy covering injuries to its drivers.

The evidence further shows that upon the issuance of the policy it was delivered to Edwards for delivery, who received the initial premium provided for in the policy which was by Edwards returned to and delivered to the general agency of the insurance company. The policy does not appear to have been read by the manager of the laundry company upon its delivery by Edwards and Edwards at the time did not notify such manager that he had failed to inform the agent of the insurance company of the custom and refusal of the laundry company to coyer its drivers. It further appears that after the delivery of the policy in accordance with the terms thereof, one or more auditors of the insurance company on several occasions applied to the laundry company for an audit of its books to determine the amount of the pay roll and the resulting sum due as premiums, and that upon each of these occasions such auditor was fully informed of the laundry company’s refusal to pay premiums covering the pay roll of the drivers, notwithstanding which the insurance company continued during the life of the policy to receive and appropriate all sums due under the terms of the policy except the premiums now in controversy.

The case was submitted to the court without a jury and we have the trial court’s findings of fact and conclusions-of law before us which read as follows:

“1. I find that on or about the 12th day of October, 1929, the plaintiff caused to be executed and delivered to the defendants T. E. Cloud and Newton E. Gambrell, composing the partnership of the Port Worth Laundry Company, that certain accident and public liability insurance policy covering all of the employees of the Port Worth Laundry Company, a partnership. The contract of, insurance here referred to is the same as that shown in the stenographer’s transcript of evidence.
“2. I find that the said policy above described was delivered to the Port Worth Laundry Company, a partnership, and that N. E. Gambrell and T. E. Cloud at the time did not know that the policy that had been delivered covered chauffeurs and laundry drivers and did not know it did until the auditor for the plaintiff called their attention to it-at the time he went to the said company to check up on the earned premium, at which time, I find, N. E. Gambrell notified said auditor that he did not order that kind of a policy and did not want that kind of a policy and had instructed the agent, Edwards, to that effect.
“3. I find that the chauffeurs and laundry truck drivers of the Port Worth Laundry Company are employees of the Port Worth Laundry Company.
“4. I find that provided, and in the event that the defendants are liable for the premiums by virtue of the policy, based upon the chauffeurs and truck drivers as well as other employees, that then and in such event they are liable to the plaintiff for unpaid premiums on the policy above described by agreement of parties plaintiff and defendant in the amount of Two Hundred Ninety-nine and 58/100 ($299.58) Dollars.
“5. I find that P. H. Edwards is a local insurance broker and as such was the agent and representative of the defendants, T. E. •Cloud and Newton E. Gambrell, and was likewise agent of plaintiffs, in the procurement and delivery of the contract of insurance from plaintiff.
“6. I find that the agent, P. H. Edwards, has been repeatedly instructed by T. E. Cloud and Newton E. Gambrell not to procure a policy of insurance which would cover risk on chauffeurs and laundry truck drivers; that on numerous occasions prior to the purchase- of the contract in question from plaintiff, defendants had refused similar contracts with other companies because same had covered chauffeurs and laundry truck drivers.
“7. I find that the agent, P. H. Edwards, requested the character and type of policy furnished by plaintiff without disclosing to plaintiff that he 'had been instructed by defendants not to include coverage for laundry drivers in said policy.
“Conclusions of Law.
“1. I conclude as a matter of law that P. H. Edwards was the agent of both plaintiff and defendants in procuring the insurance in question.
“2. I conclude as a matter of law that P. H. Edwards was acting within the apparent scope of his authority under both plaintiff and defendant in procuring the insurance in question.
“3. I conclude as a matter of law that the agent -P. H. Edwards had no authority to procure insurance on the chauffeurs apd truck drivers because he was specifically instructed not to procure insurance on such chauffeurs and truck drivers, and that therefore he could not bind the defendants T. E. Cloud and N. E. Gambrell by the purchase of the type of contract in question.
“4. I conclude as a matter of law that defendants T. E. Cloud and N. E. Gambrell are not liable to plaintiff for the sum of $299.58, which includes only claimed premiums on chauffeurs and laundry truck drivers.”

We have concluded that we cannot disturb the trial court’s findings of fact and conclusions of law. The evidence, we think, is sufficient to support the trial court’s findings that the broker Edwards was an intermediary agent of both parties, i. e., he was authorized as the agent of the insured to apply for the policy of insurance, and was given authority by the insurance company to deliver the policy and to collect and receive the initial premium due thereon and deliver it to the insurer. In the matter of receiving the premium and transmitting it to the insurer he was the agent of such insurer, and his knowledge, under well settled principles, must be imputed to the insurance company. The evidence, as we have stated, shows that the premiums due from and to be paid by the insured on its employees were not determinable from the face of the policy but only upon a determination and enumeration of the number of insured employees. So that, at all times of the collection of the premiums by Edwards, it. was necessary that appellant ascertain the number of insured’s employees. This was true not only upon the receipt of the initial premium but also upon the collection of the quarterly premiums thereafter demanded and received by Edwards and appellant’s auditors. Edwards, at all times prior to and during, and at all times subsequent to the application for and delivery of the insurance policy, knew that appellee’s drivers were not to be and in fact were not classified as employees covered by the policy. The ascertainment and determination of the character and number of employees to be covered by the policy was committed to Edwards and appellant’s auditors, and as to that' element of the contract, they, and each of them, were evidently the insurer’s agent and the insurer therefore was bound by its agent’s knowledge relating to that phase of the contract. In this connection we venture to insert the following quotation from the case of Overland Sales Co. v. American Indemnity Co. (Tex. Giv. App.) 256 S. W. 980, 982: “It is well settled, as both sides agree, that the acts of one procuring insurance as the agent of the insurer are imputable to it, while those of one who either acts as the agent of the assured or in the capacity of a broker are not; the broker being further held to- represent the assured for the purpose of procuring the policy and the insurer only in order to receive and transmit the premium. 22 Cyc. p. 1427; Cooley’s Briefs on Insurance, vol. 1, p. 68; vol. 3, p. 2532; [East Texas Fire] Ins. Co. v. Blum, 76 Tex. 653, 13 S. W. 572; [East Texas Fire] Ins. Co. v. Brown, 82 Tex. 631, 18 S. W. 713.”

It seems clear that to that particular element or phase of the contract there was no such meeting of minds as was necessary -to establish the contract upon which alone the insurer sued. It is also a familiar rule of law that where a contract is of doubtful meaning the court will give to it the construction the parties did, and evidently the continued demand for and receipts of premiums due other than upon the laundry drivers indicates that the insurance company and the laundry company both treated the policy as operative only upon subjects of the contract other than the wages of the drivers. At least such a course must be said to amount to a waiver on the part of the insurance company of its present demand. We might add that appellant company has, as a matter of fact, suffered no loss and its liability to compensate the drivers under the terms of its policy was suppositional only in view of the facts and that at no time has it ever been called upon to pay any sum on account of an injury of any kind to any of the laundry company’s drivers.

We conclude that the trial court’s findings of fact and conclusions of law should be adopted and the judgment affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    HOPE OIL CORPORATION et al. v. HUMBLE OIL & REFINING CO. et al.
    No. 2353.
    Court of Civil Appeals of Texas. Beaumont.
    March 30, 1933.
    See, also, 43 S.W.(2d) 272.
    Swearingen & Miller and Jas. A. Harley, all of San Antonio, for appellants.
    S. B. Dabney, of Houston, J. T. Vance, of Refugio, and IC. W. Gilmore, Vinson, Elkins, Sweeton & Weems and Williams, Lee, Hill, Sears & Kennerly, all of Houston, for appel-lees.
   O’QUINN, Justice.

This appeal was taken from a judgment of the district court of Bexar county to the Fourth Court of Civil Appeals at San Antonio, and was by the Supreme Court duly transferred from said Court of Civil Appeals to this, the Ninth Court of Civil Appeals, and duly filed on the docket of this court on August 1, 1932, and' was by this court, on December 20,1932, set for submission on February 20, 1933.

The case is before us without briefs by either party, and no excuse is shown why briefs have not been filed. The rule is well settled that the failure of the parties to an appeal, without good cause being shown, to file briefs, in accordance with the rules prescribed by the Supreme Court and the statute, authorizes the Court of Civil Appeals to dismiss the appeal without searching the record for fundamental error. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.(2d) 811; United States Fidelity & Guaranty Co. v. Hardy (Tex. Civ. App.) 24 S.W.(2d) 462 (writ dismissed); Ferguson v. Harris County (Tex. Civ. App.) 42 S.W.(2d) 297; Yuba Oil Co. v. Williams (Tex. Civ. App.) 50 S.W.(2d) 416.

Appeal dismissed.


author: DUNKLIN, Justice.

text:
    D. V. BROOKS CO. v. VERA et al.

    No. 12736.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1933.
    Rehearing Denied Feb. 25, 1933.
    George E. Miller, of Fort Worth, for appellant.
    Dawson H. Davis and Homer B. Green, both of Fort Worth, for appellees.

      Writ of error granted.

   DUNKLIN, Justice.

The D. V. Brooks Company has prosecuted this appeal from a judgment rendered against it for the sum of $257, with interest, in favor of Mrs. Joe A. Vera, joined by her husband, on a promissory note for the principal sum of $257, providing for interest and attorney’s fees, with foreclosure of a chattel mortgage on a certain automobile. In plaintiff’s first amended petition upon which the suit was tried the note was set out, together with allegations of the execution of the mortgage, with prayer for foreclosure of the mortgage lien, but there was no allegation as to the value of the automobile. It is well settled that in a suit in the county court to foreclose a lien on personal property the value of the property must be alleged in order to show jurisdiction of the court, gee Texas Jurisprudence, pp. 739 to 747, inclusive.

It is a further rule that the absence of such allegation of value’will render the petition subject to a general demurrer. Williams v. Givins (Tex. Civ. App.) 11 S.W.(2d) 224, and authorities there cited. And we have reached the conclusion that appellant’s assignment of error to the action of the court in overruling its general demurrer for lack of an allegation in that petition of the value of the automobile secured by the mortgage should be, and the same is hereby, sustained.

In this case the plaintiff sued out a writ of sequestration to impound the machine and in the affidavit for the writ the value of the property was alleged to be $257. That affidavit was filed on the same day plaintiffs’ first amended petition was filed, but there was no sequestration sued out on plaintiffs’ original petition theretofore filed. Ap-pellee insists that the lack of jurisdictional allegation of value of the machine in the amended petition was cured by the affidavit of value filed for the sequestration writ. The decision in Dubois v. Walters, 289 S. W. 751, by the Court of Civil Appeals at Waco, supports that contention, but we do not concur in that ruling, which, as stated in the opinion, was the first decision on that question in this state. It is a Universal rule that the jurisdiction of a court is determined by the allegations in the petition, which must be in writing and filed. The affidavit for sequestration is an ancillary process, and, if the plaintiff’s petition does not show jurisdiction of the court, we fail to understand how it can be said that there is a proper basis for the sequestration proceeding. For illustration, according to the statutes, if the defendant resides in a county other than that in which the suit is filed, he must be served with a copy of the petition as well as a copy of the citation. There is no provision for service of a copy of an application for sequestration. If the copy of the petition served on him shows that the court has no jurisdiction of the subject-matter, he could ignore it and take no steps to answer the suit, relying upon the rule that a judgment rendered on that petition would be a nullity and subject to collateral attack. It is undoubtedly true that the affidavit for sequestration is not an essential element of plaintiffs’ cause of action ■for debt and foreclosure.

Furthermore, the affidavit necessary to the issuance of a writ of sequestration is presented to the clerk of the court, whose duty it is, under the statutes and without action thereon by the court, to issue the writ if the application is in statutory form, accompanied by a bond to be approved by the clerk in the amount required by the statutes; and, if the allegation of value in the affidavit for sequestration can be looked to to show jurisdiction to determine the merits of plaintiff’s suit for foreclosure of a chattel mortgage when the petition fails, to embody an allegation of value, then such jurisdiction would be lost if the writ should be quashed for lack of a proper application therefor, or should be voluntarily released by the plaintiff before trial. 11 Texas Jurisprudence, pp. 741-745, and p. 761, par. 42.

Accordingly, the judgment of the trial court is reversed for lack of a showing of jurisdiction in plaintiff’s petition upon which the suit was tried, and the cause is remanded without the necessity of a determination of other assignments presented in appellant’s brief.


author: UATTIMORE, Justice.

text:
    D. V. BROOKS CO. v. KINNEY-SHOTTS INV. CO.

    No. 12735.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1933.
    Rehearing Denied March 4, 1933.
    George E. Miller, of Fort Worth, for appellant.
    Dawson H. Davis and Homer B. Green, both of Fort Worth, for appellee.

      Writ of error granted.

   UATTIMORE, Justice.

The motion for rehearing is granted, our former opinion is withdrawn, and the following substituted therefor:

Appellee filed three suits in the county court, each on a note which was secured by a mortgage on an automobile, three in all, the value of which were not alleged in the petition, but the value of each automobile was alleged in the three affidavits for sequestration filed in connection with the several 'suits. One note was signed iby Mrs. Jennie Peoples, one by C. L. Bewis, 'both indorsed by appellant. These two notes aggregated $472 principal. The third note was for $472 principal, signed by appellant. Each note carried provision for 10 per cent, attorneys’ fees.

On motion of appellee, the causes-were consolidated, and thereupon appellee filed an amended petition, alleging again the three notes and mortgages, and that the $472 note by appellant was given for the purpose of securing the payment of the other two notes, “value of the property covered by chattel mortgages securing the payment of said notes,” having “depreciated to such an extent that plaintiff was not amply secured in said notes,” and prayed for judgment on the Peoples and West notes, aggregating $472, and interest and attorneys’ fees and foreclosure of the liens on all three vehicles.

We feel that the consolidation of the three suits, which increased the total jurisdictional amount beyond the maximum jurisdiction of the county court, did not deprive the county judge of authority to permit an amendment to be filed which showed that the amount of the debt in fact never was more than $472 and 10 per cent, attorneys’ fees.

This is not a case where the plaintiff reduces arbitrarily his demand, but rather shows that he never did have, nor believed he had, a claim for more than $1,000. McDannell v. Cherry, 64 Tex. 177. These facts distinguish this from the case where a plaintiff shows a cause of action for more but merely prays for less. Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294.

It is now settled that, in case where the plaintiff seeks a foreclosure on the whole of the security, as distinguished from certain statutory liens whsfe the foreclosure is only on so much of the security as is necessary, the allegation of the value of the security is> jurisdictional. Whatever confusion may have resulted from Cantrell v. Cawyer (Tex. Civ. App.) 162 S. W. 919, and cases following it, by the third appellate district, is now obviated, for that court as now constituted has approved the above rule. Leifeste v. Stokes (Tex. Civ. App.) 45 S.W.(2d) 1006. Our further reasoning on this issue is fully set out in the opinion of Associate Justice Dunldin in D. V. Brooks Co. v. Mrs. Joe A. Vera et al., 58 S.W.(2d) 1061, this day decided.

The mortgage given by Brooks as additional security and pleaded by appellee was in writing and imports a consideration. Appellant filed a proper plea of want of consideration. The testimony on this subject is substantially the same as the pleading above set out; i. e., there is no express statement by any witness that an extension of time was or was not given. The burden of proof was on appellant to show that no extension of time was granted or other consideration. This we think he failed to do. The giving of the ninety-day note for $472 by appellant, its acceptance by appellee, is evidence that appellant sought and appellee gave such extension, and such evidence is not extinguished by the testimony or pleading of ICinney as to" additional security. If such extension was agreed to, either by word or conduct, it is valuable consideration for the mortgage.

Reversed and remanded.


text:
    PETERS v. BROWN et al.*
    No. 12763.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1933.
    Rehearing Denied Feb. 25,1933.
    M. Kleberg, of Fort Worth, for plaintiff in error.
    Tom McMurray and Arthur Lee Moore, both of Fort Worth, for defendants in error.
   DUNKLIN, Justice.

This suit was instituted by Mrs. C. B. Brown and Joe A Vera against C. O. Peters and the D. V. Brooks Company to recover a balance of $230 due on certain promissory notes and to foreclose a chattel mortgage lien on a certain automobile. But there was no allegation as to the value of the machine, which is necessary to invoke the jurisdiction of the court. By reason of that error, the general demurrer to the petition should have been sustained.

For the reasons given in the opinion in the case of D. V. Brooks Co. v. Mrs. Joe A. Vera et al. (Tex. Civ. App.) 58 S.W.(2d) 1061, this day filed, which is adopted as the opinion in this case, the judgment of the trial court is reversed and remanded.


author: DUNKDIN, Justice.

text:
    SMITH et al. v. SMITH et al.
    No. 12539.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1933.

      Worsham, Rollins, Burford, Ryburn & I-Iincks, of Dallas, F. D. Henderson, of Bryan, W. L. Scott, of Fort Worth, and' Barron & Ware, of Bryan, for appellants.
    Binkley & Binkley and Marshall & King, all of Graham, for appellees.
   DUNKDIN, Justice.

Allen Smith entered into a written contract with the state highway commission to build and construct 9.797 miles, highway No. 49, known as Federal Aid Project 441 — B, Unit 2, and to secure the faithful performance of his contract gave a bond and sublet a part of the work to Paul Schriewer, who executed a bond to secure the faithful performance of his contract with the National Surety Company as surety. After the work was finished and while there was still due Allen Smith a balance for the work, Allen Smith executed another bond with the American Surety Company of New York in order to withdraw the balance so due him to be used for, the payment of certain claims for the work done under the contract; the names of the parties who had filed claims, including E. D. Smith, plaintiff herein, were enumerated in that bond which was made for their benefit; it was recited in that bond that those claimants had attempted to fix a lien against any and all moneys that might still be due on Federal Aid Project 441 — B, Young county, for work performed by them.

E. D. Smith instituted this suit to recover on the last noted bond the amount claimed to be due for material and labor furnished by him to the subcontractor, Paul Schriewer. Upon the trial of the case he recovered a judgment against Allen Smith and the American Surety Company for the balance so claimed by him. There was a further judgment for the same amount in favor of Allen Smith and the American Surety Company on their cross-action against Paul Schriewer and the National Surety Company of New York on the bond executed by them and noted above; and in favor of the National Surety Company on its cross-action against Paul Schriewer.

From that judgment Allen Smith and the American Surety Company have prosecuted a writ of error and the National Surety Company has prosecuted an appeal; and all of those parties will hereinafter be referred to as appellants.

Several other suits by different parties holding like claims for labor and material against Allen Smith and the two surety companies on the same bonds have reached our appellate courts, among which were Allen Smith v. Jacksboro Stone Products Co. (Tex. Civ. App.) 41 S.W.(2d) 347, affirmed by Commission of Appeals 53 S.W.(2d) 780; Pierce Petroleum Corp. v. Smith, 42 S.W.(2d) 88, by the El Paso Court of Civil Appeals; Smith v. Texas Company, 53 S.W.(2d) 774; Allen Smith v. G. B. Johnson Hardware Co., 53 S. W.(2d) 779; the last two cases being by the Commission of Appeals.

The evidence in this case shows that the plaintiff gave notice to the highway commission of his claim as required by the statutes in such cases made and provided and that the debt claimed by him was just, due, and unpaid, and other questions presented by assignments of error challenging the right of plaintiff to recover on other grounds have all been determined adversely to appellants in the opinions above cited and it will therefore be unnecessary to further discuss them.

We overrule the further assignment of the National Surety Company to the judgment over against it in favor of Allen Smith and the American Surety Company. The basis of that assignment is the contention that the bond of the National Surety Company stipulates that the penalty is “to be paid to said State of Texas,” and. that therefore the state of Texas was a necessary party to the suit. The bond was in favor of Allen Smith and expressly agreed that the surety company would be liable thereon if Paul Schriewer, the principal, should fail to pay all claims for labor performed and material furnished or to perform all other services required of him under his contract.

It is clear therefore that the bond was made for the benefit of all such claimants and that the state was not a necessary party.

Nor was there error in overruling the plea of privilege filed by the National Surety Company. Its legal residence was in another county than the one in which the suit was instituted, to wit, Young county, yet there were other defendants against whom the suit was lawfully maintainable in the latter county. Article 1995, subd. 29a, as added by the 40th Leg. (1927) 1st Called Sess., p. 197, ch. 72 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a).

There was also a personal judgment against Paul Schriewer for $150 as the value of mules belonging to the plaintiff that were killed during the progress of Schriewer’s work. The testimony of the plaintiff was to the effect that he had furnished the mules to Schriewer for use on the work and that the latter had agreed to return them in as good condition as when furnished, and according to his further testimony the mules died as the result of a failure to properly care for them and not from any inherent vice, as insisted by Schriewer. Under such testimony we are unable to disturb a recovery for those animals.

Furthermore, the record here does not show that defendant Schriewer has prosecuted any appeal or writ of error from any portion of the judgment against him; nor has he filed any .cross-assignment of error challenging the same here.

And perhaps the assignments of error by plaintiffs in error to the judgment against Schriewer only for value of those mules have been urged through some misapprehension of that condition of the record. But lest we may be mistaken in our view of the record, we have considered those assignments and find them to be without merit for the reasons above shown.'

The judgment of the trial court Is in all things affirmed.


text:
    FIRST NAT. BANK OF GRAHAM v. WILLIS et ux.
    No. 12735.
    Court of Civil Appeals of Texas. Fort Worth.
    March 11, 1933.
    Fred T. Arnold, of Graham, for appellant.
    McFarlane & McFarlane, of Graham, for appellees.
   DUNKLIN, Justice.

This suit was-instituted by the First Na>-tional Bank of Graham against V. W. Willis and his wife, Lottie Willis, on two promissory notes, one for the sum of $943.30, and, another for the sum of $7,215.51 and to foreclose a mortgage given on 343.3 acres of land’ situated in Young county. The defendants-pleaded the homestead exemption, alleging, that before the execution of the mortgage liens the property had been occupied and! claimed by them as a homestead and later that 200 acres, described by metes and bounds, had' been segregated and designated as a homestead in accordance with the- provisions of the statutes.

Defendants’ testimony on the trial-was to the effect that in April, 1917, after they had' purchased the land, they moved upon it .and occupied it for eight years. About 1925 they moved part of their family to Graham — a town about 3 or 4 miles distant from the land — in order to send some of their children to school. They did not buy a home in Graham hut rented a house in which they resided and ran a restaurant, and V. W. Willis also engaged in hauling gravel, and he and his boys made a crop each year while they resided in Graham on the land in controversy ; they also kept their cows, poultry, hogs, cattle, work stock, part of the household goods, and feed for the stock at the farm and went back and forth to attend to it while they resided in Graham, and kept their children in school during all the time they resided there. They finally moved back to the farm in 1930 after they had lived in Graham some 6 or 7 years.

The case was tried before the court without a jury and the testimony was sufficient to sustain the finding made by the trial judge that the defendants established their homestead on the land in controversy in the year 1917, and that the same has continued as such ever since.

The proof showed that the note for $943.-30 was secured by a vendor’s lien on the tract of 343.3 acres and that the same has been duly extended from time to time by subsequent mortgages. The balance of the principal due at the time of the trial was $911.-45. The proof showed that the second note for the principal sum of $7,215.51 was se-. cured by a mortgage on the entire tract, but the same was executed long after the defendants had established their homestead on the land. The record also shows that V. W. Willis had been discharged in bankruptcy and for that reason no personal judgment for the debt was awarded against either of the defendants; plaintiff consenting thereto. The court awarded a foreclosure of the vendor’s lien for the $911.45 with interest, on the entire tract of 343.3 acres, but decreeing that resort be first had to the 143.3 acres be-, fore resort to the remaining 200 acres which the defendants had segregated from the entire tract as their homestead, and that the homestead tract be not sold except for the purpose of .satisfying any balance due after, the sale of the 143.3 acres. A foreclosure was denied for the note in the principal sum of s $7,215.51 on the 200-acre homestead, but the court awarded a foreclosure for that note on the excess 143.3 acres as a second lien on that tract, to be satisfied out of any excess remaining - after the sale thereof not necessary to satisfy the vendor’s lien note for--the $911.45.

From that judgment the plaintiff has prosecuted this appeal.

There is no merit in the objections made to the testimony of the two defendants to the effect that when they moved to Graham they intended to return to the farm as their home, on the ground that the same was a conclusion and self-serving. 22 Texas Jurisprudence, p. 88, par. 55.

The conclusion reached by thei trial judge that the homestead exemption was not lost by the removal of the defendants to the town of Graham and their living there for a period of nearly 7 years is supported by the following authorities: Kerens National Bank v. Stockton, 120 Tex. 546, 40 S.W.(2d) 7, 77 A. L. R. 362; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446; City Central Bank & Trust Co. v. Byrne (Tex. Civ. App.) 47 S.W.(2d) 432; articles 3832, 3833, 3839, Rev. Civ. Statutes; 22 Texas Jurisprudence, p. 11, § 2, pp. 71 to 88, inclusive, and numerous authorities there cited.

We overrule the further assignment to the effect that by an instrument in writing executed by the defendants in favor of the plaintiff there was a separation of the mineral in the land on which additional security was given to the plaintiff for the second note and which therefore was not subject to the homestead exemption, since that instrument merely gave security on “all the proceeds and moneys due and to accrue as an oil and gas royalty on the above described tract of land.” It thus appears that that instrument merely related to the money that might be collected from the royalties and gave a lien on the same. It further appeared from ithe evidence that the oil well had been plugged and all the money realized from the royalties thereon had been paid over to the plaintiff.

There is another assignment in the record presenting the contention that the two liens on the 143.3 acres should be satisfied in the inverse order of their execution. In other words, that proceeds of the safe of that land should be applied first to the payment of the second note and the excess remaining after satisfying the second note, be applied to the first note.

The doctrine so invoked is one in equity and to enforce it would be to cast a greater burden on the homestead than was created by the first note which was a vendor’s lien, which could not be done without impairing the exemption guaranteed by the Constitution (article 16, § 50) and statutes in that by indirection the homestead could thereby be subjected in part to the satisfaction of the second mortgage executed after the exemption attached. 38 Corpus Juris, p. 1375; Kerens National Bank v. Stockton, 120 Tex. 546, 40 S.W.(2d) 7, 77 A. L. R. 362, and authorities therein cited. Furthermore, in order for the plaintiff to invoke that equitable relief a pleading--therefor was necessary, which we do not find in the record. Rippetoe v. Dwyer, 49 Tex. 498.

Accordingly, all assignments of error are overruled and the judgment of the trial court is affirmed.


text:
    WILSON et ux. v. GUADALUPE COUNTY et al.
    No. 2331.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1933.
    Rehearing Denied April 19, 1933.
    Spencer, Rogers, Lewis & Slatton, of San Antonio, and C. L. Bell and F. E. Knetsch, both of Seguin, for appellants.
    Wirtz & Weinert and Alvin P. Mueller, all of Seguin, for appellees.
   O’QUINN, Justice.

Appellants, Yates Wilson and his wife, Lillie Wilson, sued Guadalupe county, and the county judge and the county commissioners of Said county, in trespass to try title to 40 acres of land described in their petition. Their prayer was “that they have judgment for and possession of said land, and that they be quieted in their title and possession, and for general relief.”

Appellees answered by general demurrer, general denial, plea of not guilty, and specially the two-year statute of limitation against the right of plaintiffs to recover for any trespass or damage. They .further answered specially that by deed of date July 14,1926, duly executed and recorded, Yates Wilson for a valuable consideration conveyed to Guadalupe county a strip of land 40 feet wide off of the west side of said 40 acres containing 4.44 acres for the purpose of establishing thereon and thereover a public road, and that said county did establish, and dedicate said strip of land as a public road since when it has maintained, same as such. That appellants then and ever since have recognized said public road and used same, and made no complaint as to same until the filing of this suit August 24, 1929. They further answered by several special pleas defensive matters, which, in view of the pleadings of appellants, admissions of both parties in their briefs, and the judgment rendered, we do not deem it necessary to state. Their prayer was that ap-pellee Guadalupe county recover judgment for a perpetual easement and right of way on and over said 4.44 acres of land.

At the close of the evidence, the court denied appellants’ request for an instructed verdict, but granted appellees’ request and! entered judgment vesting in Guadalupe county an easement and right of way for road purposes on and over the 4.44 acres of land' in controversy, and vested fee-simple title to said land in appellants, subject to the easement in favor of said county. From this judgment appellants bring this appeal.

Among the undisputed facts are these: Yates Wilson and Lillie Wilson, his wife, were the community owners of the 40 acres of land described in their petition. This land constituted their homestead. After living upon this land for several years, they left same and went to Fort Worth, not, however, with the intent to abandon same. This was in 1918. Later, about 1925, Yates Wilson not being in good health went to San Antonio to stay with his relatives, not having permanently separated from his wife, Lillie, but for his personal benefit in health. By deed of July 14, 1926, he, Tates Wilson, for a consideration of $66.60 deeded the 40-foot strip off of the west side of the 40-acre tract, amounting to 4.44 acres, to Guadalupe county for road purposes. The county had already taken possession and partly constructed a road on the land at the time he executed the conveyance. He, later, in the same year, told his wife, Lillie, about the road and his executing the deed and the amount he got for the easement. She made no objection, nor made any claim whatever against the county. Later, about 1929, oil was discovered near the land, and this suit was filed for the land. We shall not make further statement as to the facts, nor the various contentions or questions, because as this suit, as made by appellants in their petition, is one of simple trespass to try title with prayer for judgment to recover the title and possession of the land without any allegation of damages or prayer for same, and the appellees claiming only an easement for road purposes on and over the land by virtue of the deed from Tates Wilson for such purpose, and the judgment granting to each party that for which they prayed, namely, title to the land, the 4.44 acres, to appellants subject only to appellees’ easement for road purposes, and granting the county an easement for road purposes on and over said 4.44 acres, there was no other question to be determined, and, therefore, the judgment should be affirmed.

A further reason for the affirmance of the judgment is that appellants disclaimed all right to recover as to the south half of said 40-foot strip, and urged their right only as to the north half of same. Without going into detail as to the contentions and evidence relating to this portion of the 4.44 acres, we will say that the deed of Tates Wilson conveying for road purposes an easement on and over said land, vested for such purpose a full, complete, and valid right to said easement on and over the entire strip, and that the joinder of his wife, Lillie Wilson, was not necessary though the 40 acres at the date of the execution of the deed was their homestead: It is well settled that the husband may, without the joinder of his wife, grant an easement over community property which is the homestead of the parties, when such easement does not destroy or materially affect its use as such. Randall v. Railway Co., 63 Tex. 586; Chicago, T. & M. C. R. Co. v. Titterington, 84 Tex. 225, 19 S. W. 472, 31 Am. St. Rep. 39; Gates v. Pitts (Tex. Civ. App.) 2 S.W.(2d) 307; Denton County v. Sauls (Tex. Civ. App.) 265 S. W. 1091, 1093. It is nowhere shown, or even contended, that the use of the 40-foot strip as a public road would in any manner interfere, with the wife’s use or enjoyment of the home.

The insistence of appellants that the, .grant of the easement was void because there was no sufficient description of same in the deed to properly identify and locate same is overruled. The description in the deed is: “ * * * 40 ft. wide and off the west side of the 40 acres conveyed to Tates Wilson by Sallie Wilson by deed dated November 7, 1914, recorded in Vol. 48, pages 134-135, of the Deed Records of Guadalupe County, Texas, and containing 4.44 acres more or less.”

The deed from Tates Wilson to Guadalupe county described the entire Tates Wilson 40-acre tract by reference to a recorded deed from Sallie Wilson to Tates Wilson. The description in the deed referred to shows the 40 acres to be a long narrow strip of land approximately 1,734 varas long by 132 varas in width, the east and west sides forming the length thereof and having a bearing of S. 5 W. The deed from Tates Wilson conveying the easement reads: “All that certain strip of land a part of the Jacob Darst 24 Labors in Guadalupe County, Texas, and the piece of land here conveyed is 40 ft. wide and off of the west side of the 40 acres conveyed to Tates Wilson by Sallie Wilson by deed dated November 7, 1914, recorded in Vol. 48, pages 134^-135 of the Deed Records of Guadalup'e County, Texas.”

The description is amply sufficient.

The judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    SHIELD CO., Inc., v. CARTER et ux.
    No. 12762.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1933.
    Rehearing Denied March 4, 1933.

      Richard Owens, of Fort Worth, for appellant.
    W. H. Tolbert, of Fort Worth, for appellees.
   DUNKLIN, Justice.

The Shield Company, who was defendant in the court below, complains of a judgment rendered against it in favor of A. Carter and wife for the purchase price paid by plaintiffs for a radio. Plaintiffs purchased the radio from the defendant for the sum of $61.38 and paid that price in cash at the time of the delivery of the instrument. After its delivery plaintiffs, upon tests made, found that it was not of the quality and efficiency that defendant had guaranteed when it was sold. Upon making that discovery, plaintiffs returned the instrument to defendant and demanded reimbursement of the price paid. The defendant refused that demand, but sent to plaintiffs’ residence another instrument of a larger size, with a request that they accept the same in lieu of the first instrument, at a higher price, with a credit thereon for the amount paid for the first instrument. Plaintiffs declined that offer and refused to return the larger instrument until they should be reimbursed for the money already paid for the first. Defendant then by judicial process recovered possession of the larger instrument. Plaintiffs then instituted this suit in the justice court to recover the price they had paid for the first instrument and also for actual and exemplary damages.

Upon trial in the justice court plaintiffs were awarded a recovery for the purchase price and $25 damages additional. The defendant prosecuted an appeal from that judgment to the county court, and this appeal is from the judgment rendered in that court for $61.38 with legal interest from the date of plaintiffs’ demand for return of the money up to the date of the judgment; although the judgment was upon an instructed verdict for $61.38 with no award of interest.

The principal contention presented by different assignments of error is the alleged failure in plaintiffs’ pleadings and also an alleged failure of proof to show the proper measure of damages. It is insisted by appellant that plaintiffs had the right of election of one or the other of the following remedies, to wit, a suit to rescind the contract, or recover the difference between the market value of the radio purchased by them in the condition it was when purchased and of what would have been its market value had it been of the quality represented; and that there was no basis in the pleadings for a recovery on either of those theories.

The trial of the case was upon oral pleadings which were duly noted in the trial court and appear in the transcript here. The pleadings show allegations of the facts substantially as recited above, and also that the defendant has retaken and now holds the radio sold to the plaintiffs and also retains the purchase price paid by them therefor, while plaintiffs have nothing in return for the money paid. It is a well-established rule that oral pleadings in the justice court and in the county court, on an appeal from the justice court, are construed liberally, and not with the same strictness as in cases originating in the county or district courts. And we have reached the conclusion that there was a proper basis for a recovery of the purchase price paid for the instrument awarded by the court. Guaranty State Bank of Olden v. Greer (Tex. Civ. App.) 261 S. W. 484; McCaskill v. Clay (Tex. Civ. App.) 284 S. W. 643; Mueller v. Simon (Tex. Civ. App.) 183 S. W. 63. We quote the following from 50 Corpus Juris, p. 876, par. 858: “If the goods are worthless, or if they have been destroyed through the defects warranted against, or if the seller has retaken the property, the buyer can recover the amount paid, irrespective of a return or tender.”

If the plaintiffs still retained the radio purchased, there would be merit in appellant’s contention noted above, but-the authorities cited in support of that contention are not applicable under the facts and pleadings related.

There is no merit in the further assignment to the action of the court in allowing interest on -the purchase price from the date of its receipt by the defendant up until the date of the judgment, even though the verdict of the jury did not award interest. Rule 62a for the government of Courts of Civil Appeals; McCanless v. Devenport (Tev. Civ. App.) 40 S.W.(2d) 903; Watts v. Continental Casualty Co. (Tex. Com. App.) 18 S.W.(2d) 591. See, also, article 2211, Rev. Civ. Statutes, as amended by Acts of the 42d Legislature, p. 119, c. 77, § 1 (Vernon’s Ann. Civ. St. art. 2211), according to which the trial court was authorized to include interest in the judgment notwithstanding the absence of a finding by the jury therefor.

For money had and received there is an implied contract to pay interest as a legal incident to the debt, under provisions of article 5069, Rev. Civ. Statutes, and it is the duty of the trial court to instruct a jury to allow the same. H. & T. C. Ry. v. Jackson, 62 Tex. 209, 212 (local citation), citing and following the decision in Fowler v. Davenport, 21 Tex. 626, 635. If the trial court had refused to allow interest as a part of the recovery, then this court would have jurisdiction to so reform the judgment as to award that relief under provisions of article 1856, Rev. Civ. Statutes.

Accordingly, all assignments of error are overruled, and the judgment of the trial court is affirmed.


author: GALLAGHER, Chief Justice.

text:
    MANN et al. v. PACE.
    No. 1440.
    Court of Civil Appeals of Texas. Waco.
    March 16, 1933.
    Rehearing Denied April 20, 1933.
    Wynne & Wynne, of Wills Point, for appellants.
    J. S. Callicutt, of Corsicana, for appellee.
   GALLAGHER, Chief Justice.

This suit was instituted in the district court of Navarro county by appellee, H. E. Pace, against appellants, E. L. Mann and B. A. McPhail, to immediately and perpetually restrain them from prosecuting a certain suit filed by them in the district court of Van Zandt county. Appellee alleged that he resided in Navarro county; that appellant Mann resided in Kaufman county and appellant McPhail in Smith county. Appellee alleged that appellants, on February 16, 1931, instituted a suit against him in Van Zandt county to establish a trust in their favor in and to an undivided two-thirds interest in the mineral estate in a certain tract of land situated in said county; that he filed his plea of privilege in said cause, alleging his residence in Navarro county and asking that the same be transferred to said county for trial; that thereafter, on May 3, 1932, the court entered an order sustaining said plea and transferring the cause to said last-named county; that no appeal was prosecuted from said order, and that the same had become final. He further alleged that said cause was actually transferred to the district court of Navarro county; that on August 11, 1932, judgment was rendered and entered therein that'appel-lee recover said land of appellants, together with his costs, and that they take nothing therein; that no appeal was prosecuted from such judgment, and the same had become final.

Appellee further alleged that appellants thereafter filed another suit against him in Van Zandt county “involving the same subject matter as did the former suit”; that they did so for the purpose of vexing and harassing him; that jurisdiction of any controversy between him and them with reference to the title to said tract of land was, by virtue of the order of the district court of Van Zandt county on his plea of privilege, as aforesaid, vested exclusively in the district court of Navarro county. Appellee prayed for the immediate issuance of a temporary injunction restraining appellants from further prosecuting said suit and from instituting any other suit or suits against him with reference to said tract of land or any interest in the mineral estate therein, and that on final hearing the same he perpetuated. No other relief was asked.

The judge of the district court of Navarro •county being absent therefrom because of sickness, appellee presented his petition to the judge of an adjoining district, who granted a writ in terms'as prayed for. The right of such judge to act under the conditions existing is not questioned. The action of the court in granting said temporary injunction upon the allegations contained in appellee’s petition is presented to this court for review.

Opinion.

This action is predicated upon appel-lee’s contention that the order of the district court of Van Zandt county sustaining his plea of privilege in the original suit and transferring the same to Navarro county for trial fixed final and exclusive jurisdiction in the district court of the latter county of the cause of action asserted therein, and his further contention that appellants, in their second suit now pending in Van Zandt county, assert the same cause of action. Appellee did not attach to his petition in this cause a copy of appellants’ petition in their second suit. He merely alleged, in substance, as above recited, that such suit involved the .same subject-matter as the former one. Such allegation is a mere legal conclusion on the part of the pleader. Thomason v. Ham (Tex. Civ. App.) 210 S. W. 561, 563, par. 2, writ refused; Shook v. Shook (Tex. Civ. App.) 145 S. W. 699, 707, par. 8, writ refused; Anderson, Clayton & Co. v. Terry (Tex. Civ. App.) 167 S. W. 1, par. 2; Pye v. Wyatt (Tex. Civ. App.) 151 S. W. 1086, 1088, par. 2. The rule is settled in this state that a petition for injunction must clearly and distinctly state all the material and essential elements entitling the party to relief and negative every reasonable inference arising from the facts so stated that the party might not, under other pertinent supposable facts, he entitled to relief. Harding v. W. L. Pearson & Co. (Tex. Com. App.) 48 S.W.(2d) 964, 966, par. 7, and authorities there cited; Town of Refugio v. Strauch (Tex. Com. App.) 29 S.W.(2d) 1041, 1045, par. 14; Dunn v. City of Austin, 77 Tex. 139, 144, 11 S. W. 1125; Roaring Springs Townsite Co. v. Paducah Telephone Co. (Tex. Civ. App.) 164 S. W. 50, 53, par. 2. Measured by the rules announced in the authorities above cited, appellee’s petition' was insufficient to support the injunction issued thereon.

We deem it proper, however, to discuss other issues presented on the face of the record in this case. The transfer of the original suit to Navarro county vested the district court thereof with power and dominant jurisdiction of the subject-matter of the controversy of the parties over the rights asserted by them therein, and that court was thereafter entitled to proceed to judgment in the cause and had, during the pendency of such suit, power and authority in support of such jurisdiction to issue an ancillary injunction, returnable thereto, restraining the parties from instituting and prosecuting suits involving such controversy in any other court. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, 1072, par. 19, and authorities there cited. After that court had heard the cause, determined the rights of the respective parties, and entered its judgment declaring such rights and providing for their enforcement, it had continuing authority to prevent unlawful interference with such enforcement. 11 Tex. Jur. p. 728; Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 264, 163 S. W. 577. Appellee nowhere alleged any attempt on the part of appellants to interfere with the enforcement of the judgment which he obtained in. the original suit. For all that appears in his petition, he may have been at the time of the institution of such second suit and at the time of filing his petition herein, in actual, exclusive, and peaceable possession of the land involved and the mineral estate therein. The gravamen of his complaint is that appellants in such second suit seek to relitigate rights and issues which he claims were determined in his favor in the former suit. The institution and prosecution of such second suit does not constitute an interference with the enforcement of the judgment recovered by him in the former suit. We quote from Milam County Oil Mill Co. v. Bass, supra, page 264 of 106 Tex., 163 S. W. 577, 578, as follows:

“The power to enforce its judgments necessarily inheres in a court as an essential attribute of its jurisdiction, but there is a manifest difference between the enforcement of a judgment and the prevention of a suit which makes no attempt to obstruct its execution, but denies its conclusiveness upon what is alleged to be another cause of action. One is the exercise of the jurisdiction under which the court was empowered to render the judgment. The other involves the use of authority in excess of any power necessary to its enforcement, exerted not essentially in aid of the judgment, but to afford immunity from litigation. A valid judgment should be effective to secure the benefits that it decrees; and its active office therefore continues for the full accomplishment of that result. Any interference with its enforcement or the due exercise of rights which it establishes would amount to a violation of the jurisdiction of the court as a hindrance to its power to put the judgment into effect and preserve its operative force. But to disregard a judgment through the institution of a suit is not necessarily to obstruct its operation. True it may draw the judgment into question through the denial of its effect, and the judgment may be so conclusive, as to render the suit a groundless one; but the jurisdiction of the court is not invaded by the mere assertion of rights through such method, even in contravention of the judgment, so long as its operation is left unimpeded. If a court should entertain such a suit, and through want of jurisdiction or failure to accord to the judgment its legal effect render an erroneous decree, the remedy provided by our system for its revision and the readjudication, if needs be, of the conclusiveness of the judgment, is an appeal.”

While the case from the opinion in which the above excerpt is quoted involved an attempt to prohibit the trial court from proceeding to hear the cause, as well as an attempt to restrain the plaintiffs therein from prosecuting the same, the principles of law enunciated control in determining the right to injunctive relief in such cases, whether prohibitive relief is sought therein or not. See, also, Farrell v. Young (Tex. Civ. App.) 23 S.W.(2d) 468, 470, par. §.

The sole relief asked by appellee herein is that appellants be immediately, and on hearing, perpetually restrained from prosecuting said second suit, and also from instituting any other suit or suits against him with reference to the land involved, the mineral estate, or any other interest therein. Ap-pellee therefore invokes herein original and independent equitable relief, as distinguished from equitable relief incident or ancillary to the exercise of the jurisdiction of the district court of Navarro county over, the subject-matter of some litigation pending therein. The writ of injunction when issued in súch cases must, except under circumstances not involved in this ease, be granted by the judge of the court in which the suit in which pror ceedings are sought to be stayed is pending, and must be made returnable to and tried in such court. R. S. arts. 4643 and 4656. Such statutory requirements are jurisdictional. Seligson & Co. v. Collins, 64 Tex. 314, 315, and authorities there cited; Gohlman, Lester & Co. v. Whittle, 115 Tex. 9, 273 S. W. 806, 807, et seq.; Switzer v. Smith (Tex. Com. App.) 300 S. W. 31, 32, 68 A. L. R. 377, pars. 1 and 2; Friedrich v. Brand (Tex. Civ. App.) 28 S.W.(2d) 279, 282, par. 3, and authorities there cited; Box v. Oliver (Tex. Civ. App.) 43 S.W.(2d) 979, 980, par. 2, and authorities there cited.

The injunction granted herein is dissolved.


author: LATTIMORE, Justice.

text:
    JOHNSON v. FRASER.
    No. 12771.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 11, 1933.
    Rehearing Denied March 11, 1933.
    Bonner, Bonner & Childress, of Wichita Falls, for plaintiff in error.
    Bullington, Humphrey & King, of Wichita Falls, for defendant in error.
   LATTIMORE, Justice.

This case is before us without any statement of facts on writ of error from judgments of the trial court on a suit by a partner to dissolve and wind up the affairs of a partnership. The judgments of the trial court established the interests of the parties and that appellant had withdrawn from the partnership more than his share of the income; that the property was incapable of partition, named a receiver with instruction to take possession of and sell the partnership assets, pay the creditors, if sufficient was realized, repay the appellee his portion of the income which appellant had taken, and wind up the partnership under further order of the court.

The receiver reported to the court that ap-pellee offered to purchase the property for the mortgage liens against it and recommended the sale. The appellant was offered the property on the same basis but did not accept. Thereupon after some time had elapsed the court approved the sale. A part of the mortgages were for the personal debts of appellant.

We see no reversible error in the fact that the judgment provided for a receiver and also awarded an execution against appellant. No execution has issued and no interference with the receivership administration resulted. The property did not bring enough to pay the judgment of appellee and execution for same could issue properly after the receivership had been thus closed.

The record does not affirmatively show that the receiver’s administration was regular. There is no showing that the sale was the best obtainable, nor what efforts were made to find a purchaser or that the price obtained was fair .value, but the appellant made no contest on any of these, offered no evidence to show that the same was unjust or that any better sale could or should have been made.

We must presume, in absence of evidence to the contrary, that the trial court and his officer, the receiver, each did his duty; that the court found that each of these duties had been performed; that the receiver had been diligent to obtain the best purchaser; and that the sale made was the best obtainable.

The judgment is affirmed.


author: CONNER, Chief Justice.

text:
    OSBURN v. SMART et al.
    No. 12697.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 8, 1932.
    Rehearing Denied Nov. 19, 1932.
    Second Rehearing Denied Feb. 25, 1933.

      W. L. Ooley, of Port Worth, for appellant.
    T. W. Dunn and Hiner & Pannijl, all of Port Worth, for appellees.
   CONNER, Chief Justice.

Appellant instituted this suit against P. D. Turner and J. O. Smart and Aurelia Smart. The litigation grows out of an exchange of properties between appellant, Os-burn, and appellee Smart. It appears that on the 8th day of August, 1929, the parties entered into the following contract:

“The State of Texas, County of Tarrant:
“This agreement between J. O. Smart of Tarrant County, State of Texas, Pirst Party, and S. P. Osburn of Tarrant County, State of Texas, Second Party, is to witness:
“Pirst Party is the owner of the land and notes described as follows, towit: Lot Three in Block Fifteen, also Lot Twelve in Block Thirteen, both in Brooklyn. Heights Addition to the City of Port Worth, Tarrant County, Texas. Two monthly installment notes secured by second vendor’s lien against Lot One in Block Pour of Brooklyn Heights Addition to Port Worth, Texas, each dated July 12th, 1929, each payable to the order of J. O. Smart, each signed by P. E. Turner, each bearing interest from date at 8% per annum, payable semi-annually, Note No. 1 in the principal sum of $2,000.00, the first $25.00 monthly installment due 'September 1st, 1929, Note No. 2 in the principal sum of $1,668.28, the first $25.00 monthly installment due September .1,1981.
“The agreed value of said land and notes being $12,168.28. Said property is subject to the following liens and incumbrances; on Lot Three, monthly installment note payable to the order of Tarrant County Building & Loan Association, original principal sum of $3,-000.00, to have a value of $2,800.00 as of date of closing, if balance due on said note is more than $2,800.00 Smart is to pay the difference to Osburn, if balance is less than $2,800.00 then Osburn is to pay the difference to Smart.
“On Lot Twelve, monthly installment note payable to the order of Railroad Building & Loan Association of Dallas, Texas, original principal sum of $1,700.00, to have a value of $1,640.00, as of date of closing, if balance due on said note is more than $1,640.00 Smart is to pay the difference to Osburn, if balance is less than $1,640.00 then Osburn is to pay the difference to Smart.
„ “Second party is the owner of the land and premises described as follows, towit:
“(Here follows description of land by metes, and bounds.)
“Also all crops, growing and gathered, all tools and implements, all livestock, including hogs, cow, mules and chickens, in fact all chattels now on said land.
“The agreed value of same being $8,178.28. Said property is subject to the following liens and encumbrances: Olear.
“Pirst party hereby sells and agrees to convey to Second Party the land and notes above described as owned by Pirst Party.
“Second Party hereby sells and agrees to convey to Pirst Party the land and chattels above described as owned by Second Party.
“Each of the parties hereto shall assume the encumbrances and liens on the property conveyed to him. The party whose property to be conveyed and equity therein is of least value as fixed hereby shall pay to the other party such difference in cash and notes as follows:
“Osburn paying $450.00 Dollars to Smart. Seller to retain vendor’s lien and deed of trust to secure said notes; each party hereto agrees to furnish the other with a complete abstract of the property to be conveyed showing merchantable title to his property which shall be conveyed free and clear of all encumbrances except those herein named, and subject to all restrictions applicable to the plat or addition of which said land is a part.
“Within ten days from the receipt of abstract, the party receiving same shall accept or return abstract with written objections thereto. Failure to comply with this provision shall be construed as an acceptance of the title.
“In the event title is not good and cannot be made good within a reasonable time, the purchase money is to be returned to the party depositing same upon cancellation and return of this contract, but the right to enforce specific performance hereof is retained at ■the option of either party hereto.
“When title objections have been cured, each party agrees to deliver a good and sufficient warranty deed properly conveying his property to the other and to pay the balance of cash payment, if any, and to execute the notes and deeds of trust, if any herein provided for.
“Should either party fail to consummate this contract, as specified for any reason except title defects, the other party may retain the cash deposit as liquidated damages for said breach after paying the agent therefrom the usual commission, or may enforce specific performance. Taxes for the current year, current rents, insurance and interest, if any, are to be prorated at the date of closing.
“Pirst Party has deposited with Geo. Beggs, Agent, the sum of 2 above described monthly installment vendor’s lien notes, receipt of which is hereby acknowledged, and agrees to pay him a commission of $304.00.
“Second Party, has deposited with Geo. Beggs, Agent, the sum of $450.00, receipt of which is hereby acknowledged, and agrees to pay him a commission of $175.00.
“Both Parties hereto have been represented in this transaction by Geo. Beggs as Agent. They agree that said Agent shall represent both of them and each will pay him a commission for his services as follows:
“First Party $304.00 Second Party $175.00.
“No change or addition in this contract shall be made except in writing signed by both parties and their agents, and no representation as to value, condition or otherwise concerning this property shall be binding on either party or their agent or agents unless embodied herein in writing.
“Possession of above described farm to be had at date of closing.
“Witness our hands this 8th day of August, A. D. 1929.
“-- J. O. Smart Party of First Part.
“-- S. P. Osburn Party of Second ' Part.”

The plaintiff Osburn, the complaining party, alleged that on August 16, 1929, the contract was consummated by him conveying his property as described in the contract to Aurelia Smart, wife of defendant J. O. Smart; that the Smarts on that day executed and delivered deeds to plaintiff to lot 3, block 15, and lot 12, block 13, mentioned in the contract, and at the same time by written transfer assigned the two second vendor’s lien notes mentioned in the contract, representing to plaintiff that said notes were good and would be paid promptly as they became due; that, by reason of the accelerating clauses and the failure to pay the specified installments, plaintiff, on October 16, 1929, elected to and did declare said notes due and payable, and that: “By virtue of the terms of said contract, and by law, plaintiff is entitled to a vendor’s lien upon the property conveyed by plaintiff and described in said contract to defendant Aurelia Smart by reguest of defendant, J. O. Smart, and to a judgment foreclosing said vendor’s lien.”

Plaintiff further alleged that: “By mutual mistake of the parties to said contract, plaintiff paid to defendant J. O. Smart, Four Hundred and Fifty ($450.00) Dollars in cash, when, according to the terms of the contract, said J. O. Smart should have paid $450.00 to plaintiff, and therefore plaintiff is now entitled to recover from defendants J. O. Smart and Aurelia Smart Nine Hundred ($900) Dollars, together with interest at 6% since to wit, August 8th, 1929.” For which he prayed 'judgment with foreclosure of the vendor’s lien.

Smart and wife answered with a general demurrer and a general denial, and specially to the effect that the written contract set out in plaintiff’s petition had been duly executed and the properties delivered as therein provided, and that:

“Said contract represents and is the exact proposition and trade except as to values placed on the properties agreed upon by the plaintiff and the defendant J. O. Smart; that the trade and sale of the property set out in said contract and the terms of said contract were carried out by both the plaintiff and the defendant. * * * That the agreement to trade property or properties as above set out was the proposition upon which the minds of the plaintiff and these defendants met and was the identical trade and proposition intended by both the plaintiff and these defendants, and was the identical trade and proposition that was carried out and consummated by the plaintiff and these defendants on the 16th day of August, 1929. * * *
“The said defendants say that they did not at any time indorse said second lien notes and that they did not at any time guarantee the payment of said notes or any part of same to the plaintiff Osburn and that they did not at any time agree either directly or indirectly that the plaintiff should have a lien on the farm conveyed to the defendants by the plaintiff, to secure said two second vendor’s lien notes. And the said defendants deny specially that the plaintiff is entitled to a lien upon said farm to secure payment of said notes, either by terms of said contract or by law.”

The defendants further specially denied the other claims, aggregating $900, and alleged in substance that the property upon which the notes conveyed to Osburn rested had been examined prior to the trade by Osburn, and was well worth much more than the sums secured by the liens thereon.

The evidence indicates that the case was tried on the theory that by mutual mistake the contract was not as written. It is undisputed that the negotiations which culminated in the execution of the agreement was by a broker, one Borho, acting for both parties; that the parties themselves at no time met or conferred together, but the broker would submit to the respective parties the respective bids, and the contract and conveyances of the properties were signed by the principal parties without having met.

Among other things, it was the contention of the plaintiff that, at the time of the execution of the contract, the negotiating agent, acting for Smart, had declared the notes were good, and that they would be paid, and fur-' ther that he (Osburn) should have a lien upon the properties conveyed by him to Smart to secure the payments of those notes. This testimony was controverted by the defendants, and the case was submitted to a jury on two issues, which, together with the answers thereto, are as follows:

“Was the oral agreement made by Borho with Osburn that Osburn should 'have a lien on the farm to secure the two notes traded Osburn by Smart? Answer: No.
“Was the oral agreement made by Borho with Smart that Osburn should have a lien on the farm to secure the two notes traded Osburn by Smart? Answer: No.”

Upon the verdict so rendered, the court entered judgment that the plaintiff take nothing as against J. O. and Aurelia Smart, and that they go without day and recover their costs; and further entered judgment in favor of the plaintiff against F. D. Turner, who had executed the two second vendor’s lien notes transferred to the plaintiff, and who had been made a party defendant in the suit, but who failed to answer, for the sum of $4,615.90, principal, interest, and attorney’s fees, with interest thereon from the date of the judgment at the rate of 8 per cent, per annum and all costs of suit, etc. The plaintiff, Osburn, excepted to the judgment in favor of the Smarts, and gave due notice of appeal therefrom to this court.

On the submission of this cause, the argument proceeded, in part at least, upon the theory that there was a mutual mistake in the terms of the contract in more than one particular, but the only mistake alleged in the pleadings is that charged by the plaintiff, Osburn, that there was a mistake made in the payment of the $450 to Smart. The concluding clause of the contract is that: “No change or addition in this contract shall be made except in writing signed by both parties and their agents, and no representation as to value, condition or otherwise concerning this property shall be binding on either party or their agents unless embodied herein in writing.”

And we find no change of any kind in the contract embodied in writing and attached thereto. We think, therefore, that the rights of the parties are to be determined by the terms of the contract in the light of the evidence otherwise relevant, to which reference will be made. By a reading of the contract it will be observed that each of the parties was to assume the incumbrances and liens on the property conveyed to him. On lots 3 and 12, conveyed by Smart to Osburn, there was an indebtedness of $4,440, which, by the terms of the contract, Osburn assumed. If this be deducted from $12,168.2S, the agreed value of Smart’s property, it leaves $7,728.28 as the net dr actual value that Smart conveyed to Osburn. The agreed value of Osburn’s property was $8,178.28. Deducting the $7,728.28 conveyed by Smart leaves $450 as the excess value of Osburn’s property. It is clear from the contract as a whole that in the exchange of properties severally conveyed equality of values was intended, and hence it is apparent on the face of the contract that the $450 the contract recites Os-burn paid 'Smart is a patent mistake; that in truth this $450 was due from Smart to Os-burn. This must be held, we think, from the terms of the contract, regardless of the evidence, for the earlier provisions providing equality of values in the exchange of properties control the later recitation of Osburn’s payment to Smart — it being a rule in the construction of contracts that, where there is a conflict or ambiguity in the terms of a contract, the earlier provision will prevail over the latter. See 10 Tex. Tur. pp. 310, 311, § 179, and cases cited.

Proceeding then on the theory that Smart on the date of the execution of the contract was due Osburn $450, which he did not pay, to which must be added the $450 which the evidence shows without dispute Osburn in fact paid Smart upon the exchange of deeds, there is a total sum of $900 that Smart is actually indebted to Osburn in this particular.

In treating the subject of equitable liens, it is said in Story’s Equitable Jurisprudence (14 Ed.) p. 303, § 1163, that: “One of the most common cases in which a court of equity acts upon the ground of implied trusts, in invitum is where a party has received money which he cannot conscientiously withhold from another party. It has been well remarked that the receiving of money which consistently with conscience cannot be retained is in equity sufficient to raise a trust in favor of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore whenever any interest arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et' bono retain it. Illustrations of this doctrine are familiar in cases of money paid by accident, or mistake, or fraud. * * * ”

In the same volume, page 259, § 1622, it is said that: “But there are liens recognized in equity whose existence is not known or obligation enforced at law, and in respect to which Courts of Equity exercise a very large and salutary jurisdiction. In regard to these liens it may be generally stated that they arise from constructive trusts. They are therefore wholly-independent of the possession of the thing to which they are attached as a charge or incumbrance, and they can be enforced only in Courts of Equity. The usual course of enforcing a lien in equity, if not discharged, is by a sale of the property to which it is attached. Of this we have a strong illustration in the well-known doctrine of Courts of Equity, that the vendor of land has a lien on the land for the amount of the purchase-money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid. To the extent of the lien the vendee becomes a trustee for the vendor; and his heirs and all other persons claiming under them with such notice are treated as in the same predicament.”

In accord with the principles to be gleaned from the quotations made from Story, we conclude that Osburn is entitled to a personal judgment against J. O. Smart for the said $900, together with interest thereon at the rate of 6 per cent, per annum from the 8th day of August, 1929, to secure which Osburn should have the equitable and implied vendor's liens upon the real estate conveyed by him to Aurelia Smart.

By reference to the contract it will be seen that two second vendor’s lien notes, executed by F. D. Turner and payable to J. O. Smart, were conveyed by Smart as part of the consideration for Osburn’s property, one for $2,-000, and the other for $1,668.2S, the two notes aggregating $3,668.28. These notes were secured by a second vendor’s lien on lot 1 in block 4 of the Brooklyn Heights addition, this being upon a different lot and in a different block from the lots conveyed by Smart to Osburn. The undisputed proof shows that there was a first vendor’s lien upon said lot 1 in block 4 to secure some $9,000, and that prior to the institution of this suit the owner of the $9,000 indebtedness in form and manner not questioned sold to a person other than Osburn said lot 1 in block 4 for the amount due upon the principal indebtedness, thus rendering the second vendor’s lien notes in question wholly valueless, and plaintiff further seeks to recover in this suit the value as agreed upon in the contract of the said second vendor’s lien notes, aggregating $3,-668.28, with a foreclosure of a vendor’s lien upon the lands conveyed by Osburn to Smart. The undisputed proof shows that the second vendor’s lien notes in question were not indorsed by Smart, the transfer being by a written instrument not attached to the notes, and therefore, under our Negotiable Instruments Act, Smart is not personally liable thereon. However, by section 49 of that act (Rev. St. 1925, art. 5934, §. 49), it is stated that, where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. Moreover, we see no reason why, where the facts or law require it, a purchaser may not be relieved of a personal liability and at the same time consent to a lien upon the property received by him to secure his personal note. It is to be noted also that the contract, after specifying the notes described, including the two second vendor’s lien notes, contains the following: “Seller to retain vendor’s lien and deed of trust to secure said notes. * ' * * ”

The language is certainly broad enough to include the right in Smart to a vendor’s lien upon the real estate he conveyed to Osburn to secure the payment of the notes secured by a lien thereon which Osburn assumed, and likewise broad enough to include the right to Osburn to the vendor’s lien upon the property he conveyed to Smart to secure the payment of the two second vendor’s lien notes received as part consideration for his conveyance. Osburn, as to his property, was undoubtedly a seller. These two vendor’s lien -notes were taken as part consideration. That they are worthless and invalid is not questioned by any finding, and, while the oral evidence was to the effect that there was no specific agreement during the negotiations that Osburn should have a lien to secure the payment of these notes, or for a personal judgment against Smart, yet, in view of section 49 of tl\e Negotiable Instruments Act (Rev. St. 1925, art. 5934, § 49) and of the language of the contract, we have concluded that in equity Osburn is entitled, in addition to the $900 item hereinbefore referred to, to the vendor’s lien upon the real estate conveyed by him to Aurelia Smart to secure the payment of these two second vendor’s lien notes taken by him as part of the consideration for the property. The section of the Negotiable Instruments Act referred to reads as follows: “Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.”

It is accordingly ordered that the judgment below be reversed and here rendered in favor of appellant, Osburn, in accord with our conclusions as noted, with direction for the issuance of all necessary process for its indorsement.

There is no complaint either in behalf of or against tile defendant F. D. Turner or the appellee Mrs. Aurelia Smart, and the judgment as to them is therefore left undisturbed, except the liens hereinabove mentioned established in favor of appellant, Osburn, are enforceable against both J. O. and Aurelia Smart. We wish also to add that our conclusions and decree which shall be entered in accordance therewith are not to be construed so as to prevent ' J. O. Smart or Aurelia Smart from seeking a subrogation to Osburn’s right to thé judgment rendered against F. D. Turner for any and all moneys that may be collected by Osburn under the decree -enforcing the equitable liens herein granted in his favor. And it is further provided in this particular that, should it so happen that Os-burn at any time has been or shall be enabled to actually collect any sum or sums of money from or under.the said judgment against F. D. Turner, such sum or sums as shall be so collected, if any, or received under said judgment, shall operate as a credit pro tanto on the sums hereinabove specified as due Os-burn under this decree.

It is further ordered that all costs of this court and in the court below shall be taxed against appellee J. 0. Smart.

On Motion for Rehearing.

In behalf of appellees a vigorous effort for a rehearing has been presented. It is insisted that we erroneously awarded to appellant the $900 and a vendor’s lien to secure the payment of the second vendor’s lien notes Osburn received in the exchange. In deference to the earnestness and ability of the eminent counsel who now so insists, we will again review these questions. Recurring, therefore, to the contract, we find: (1) The value of appellant’s (Osburn’s) property, real and personal, unincumbered as fixed by the contract, is $8,178.28; (2) the value of appel-lee Smart’s property, including incumbrances, as fixed by the contract, is $12,168.28.

This property of Smart’s consisted of the two notes aggregating $3668.28, which being deducted leayes the value of the two lots conveyed by Smart to Osbum • as $8,500. These two lots were incumbered in the aggregate sum of $4,440. Therefore the value of Smart’s equity is $4,060.

Therefore the difference between the unin-cumbered value of Osburn’s property and the equity of Smart’s property is $4,118.28.

. The contract says: “The party whose property, to be conveyed and equity therein, is of the least value as fixed hereby, shall pay to the other party such difference in cash and notes.”

Therefore, by the very terms of the contract, Smart was obligated to pay to Osburn $4,118.28 in cash and notes. The notes be- • ing for $3,668.28, Smart was obligated by the contract to pay the balance, $450, in cash.

Again, the contract provides: “Seller to retain' vendor’s lien and deed of trust to secure said notes.”

There being no other notes involved by the terms of the contract except the two second lien notes, aggregating $3,668.28, which were transferred by Smart to Osburn as part of the purchase price of the Osburn farm, the expression “said notes” necessarily means these two notes. Therefore, by the terms of the contract, a vendor’s lien was specifically provided in favor of Osburn and against the land conveyed by Osburn to Smart.

Thé settled law"of this state is: Where there is a variance between clauses of a contract, the one which contributes most essentially to the contract is entitled to the most consideration.

If there is an irreconcilable conflict between clauses of the contract, by reason of which the meaning is obscured or rendered doubtful, the expression in the clause first appearing will control. 10 Tex. Jurisprudence, p. 311, § 179, and cases there cited.

Therefore the expression, “Osburn paying $450.00 to Smart,” following the positive provision in the contract, “The party whose property to be conveyed and equity therein, is of least value as fixed hereby, shall pay to the other such difference in cash and notes,” being absolutely at variance, and in irreconcilable conflict with the plain terms of the contract, is a self-evident error, and must be discarded. Any other interpretation would entirely destroy the plain terms of the contract considered as a whole, and would permit the establishment of- an entirely different contract by parol testimony, without any pleading to base it upon.

An examination of the evidence, which came up in question and answer form, discloses that appellant and appellee never talked with each other about the contract; that neither of them read it; that each of them trusted it entirely to Borho, the real estate agent. Appellant said: “I did not read the contract; I trusted it entirely to Borho; I just relied on what he said; I signed whatever papers Borho showed me and took whatever he handed me. I was sick in bed most of the time and I did not read. I had absolute confidence in the man.”

The witness Mrs.. Osburn said: “Mr. Bor-ho said Mr. Osburn was due Mr. Smart $450.00 difference, and Mr. Osburn said T will give you a check.’ He wrote out the check and said ‘Widow I am leaving it to Mr. Borho.’ ”

Appellee Smart said: “I did not read the contract.” The witness Borho said: “They both tried to put their property up so that they could get together on the trade; they both agreed that was the value of their property ; I put in- the contract what they both agreed to, when I finished the negotiations— I reduced it to writing.”

It is quite evident that Mr. Borho, representing both parties, made the mistake in writing into the contract the $450 statement and collecting from Osburn $450. It is therefore evident that Smart should repay this $450 and should pay to Osbum $450 'that he should have paid at the time of closing the contract, making a total due Osburn of $900, •with interest, as stated in the- original opinion in this case.

In his motion for rehearing, appellee for the first time raises the question and submits the propositions: First, where seller accepts notes of a’third party-as part of the consid-oration for the sale, he thereby waives the lien; second, a vendor’s lien does not arise in the case of a sale of real and personal property, for one entire consideration without any distinct price being set on the land.

We have examined the authorities submitted by counsel for appellees under these two propositions as carefully as time will permit, and we find:

First. That these authorities are based upon the theory that the vendor has waived the implied vendor’s lien by taking either the property or the responsibility of a third person.

In the case of Parker County v. Sewell, 24 Tex. 238, the court says: “At all events, it is prima facie evidence of a waiver, and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it ought not to have that effect.”

In the case of Faver v. Robinson, 46 Tex. 207, the court approves the Parker County v. Sewell Case and says : “He [vendor] will be considered to have waived the lien * * * unless it appears that he reposed as well upon the lien as upon such security.”

In the case of Cresap v. Manor, 63 Tex. 487, it is said: “[The law] did require, however, some affirmative action on his [seller] part to show that he should repose upon the lien, as well as the additional security, or something that amounted to an understanding between the parties that the lien was to be retained.”

In the ease of Archenhold v. Branch (Tex. Civ. App.) 193 S. W. 457, 459, the court says: “It is the general rule that the vendor of lands who takes independent and distinct security therefor waives the implied lien of the vendor, unless it appears that he relied as well upon such lien.”

In the case of Scharbauer v. Lampasas County (Tex. Civ. App.) 214 S. W. 468, the holding of the Cresap v. Manor Case, supra, is quoted and adopted.

In the case of Dyson v. Dysart (Tex. Civ. App.) 250 S. W. 716, 717, the cases cited above are quoted with approval, and then the court says: “The decision was clearly based on the .conclusion that the notes of third parties, indorsed by the purchaser and delivered to the vendor in payment for the land, constituted such ifidependent security as would preclude the ássertion of an implied vendor’s lien, in the absence of proof of other facts that would show an intention to retain the lien.”

Second. Under the second' proposition above mentioned, in the case of Wasson v. Davis, 34 Tex. 167, the court says: “The vendor has a lien upon the land sold only so long as he shows no purpose to release the land and take other security. But any act of the vendor which shows an intention to release the land will divest the lien., * * * The question is not whether the vendor relies upon his lien, but.whether he relies upon the particular estate sold, for his security. If he intends to rely on the estate, the law gives him the equitable lien, and it would not be fair to divest the lien, if he shows only a purpose to strengthen it and not to abandon it.”

In that case Wasson had given up the notes of the purchaser, one Williams, and had accepted in lieu of those notes the notes of Davis, and his action was brought against Davis, not Williams.

The court, on page 168 of 34 Tex., says: “It is argued by the appellant that it was incumbent upon Davis to show that Wasson had waived his vendor’s lien, and various authorities are cited. This would doubtless be the case in an action between vendor and vendee, or in any action brought directly to recover the purchase money.”

In that case Davis’ note had not only been given in lieu of the Williams’ note, but had been given also as part of the purchase price of personal property as well as the real estate.

The other cases cited by appellee upon this point, as well as upon the first proposition, are unquestionably the law. But they are not applicable to the facts in this case as appel-lees’ counsel desires us to construe them. They are, however, applicable when the point quoted above is eopsidered in connection with the language of this contract, for that language clearly shows that appellant, Osburn, did not intend to waive his vendor’s lien, the language being “seller to retain vendor’s lien * * * to secure said notes.” This language pleaded by plaintiff and admitted by the defendant clearly negatives any idea of appellant intending to waive his vendor’s -lien, but, on the contrary, it affirms his intention to retain such lien.

We believe, however, that our original opinion should be. modified to this extent: That the vendor’s lien shall attach to the land conveyed by Osburn to Smart only to the extent of said notes aggregating $3,668.-28, together with interest and attorneys’ fees as therein provided, and the $450, which by the terms of the contract Smart was to pay Osburn, with interest, thereon at 6 per cent, from the date of the final contract.

Appellees’ motion for rehearing will therefore be overruled, and a judgment will be here entered as follows:

In favor of S. P. Osburn and against J. O. Smart for $900, together with interest thereon since the' 16th day of August, 1929, at 6 per cent, per annum; to secure $450 of which the implied vendor’s lien upon- the land eon-veye'd by Osburn to Mrs. Smart is awarded. Also in favor of S. P. Osburn and against J. O. Smart for $3,66S.28, together with interest .thereon at 8 per cent, per annum since July 12, 1929, the date of said note, the interest on each of said notes to he calculated semiannually, and each unpaid amount of interest to bear interest from the "time it became due until paid at the rate of 10 per cent, per annum, together with 10 per cent, on the unpaid balance of said notes, as provided in each of them, as attorneys’ fees. Also in favor of S. P. Osburn and against J. O. Smart and Aurelia Smart, establishing the vendor’s liens hereinabove specified against the lands described, which was conveyed by Osburn to Aurelia Smart, and foreclosing said vendor’s lien, and awarding an order of sale of said real estate in the manner provided by law. Also granting to J. O. Smart and Aurelia Smart the right of subrogation as against the defendant Turner, as provided in the original opinion filed in this case. Executions shall issue against J. O. Smart for the payment of the $900 with accumulated interest and costs. And execution also shall issue against J. O. Smart for any balance that may remain due, if any, after the sale of the real estate under the vendor’s lien, as herein provided.

Defendant J. O. Smart will pay all costs of the trial court and of this court.

On Second Motion for Rehearing.

In the motion for rehearing last'filed in behalf of appellees, it is urged that we erred, among other things, in rendering a personal judgment against J. O. Smart upon the vendor’s lien notes transferred by him to Osburn as a part of the consideration for the Osburn lands. It is true that these notes were not indorsed by Smart, and hence not liable thereon if section 18 of article 5932 of our Negotiable Instruments Act alone be considered. This section reads, so far as now applicable, as follows: “Sec. 18. No person is liable on the instrument whose signature does not appear th.ereon, except as herein otherwise expressly provided.”

But section 49 of article 5934 (Rev. St.) reads in part as follows: “Where, the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor.”

It is undisputed that Smart conveyed' the notes in question to Osburn for value by a written assignment and Osburn, among other prayers, prayed for general relief, to wit, for all relief to which he was entitled in, either law or equity. Hence, construing the" two sections together, we concluded that under the evidence Osburn was equitably entitled to the personal judgment complained of.

Other questions presented in the motion now under consideration are, we think, sufficiently disposed of in our former opinions. The present motion, therefore, ⅛ also overruled.