text:
    JONES et al. v. TEAT et al.
    No. 4287.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 10, 1933.
    Rehearing Denied Feb. 23, 1933.

      W. H. Sanford and Conan Cantwell, both of Longview, for appellants.
    C. F. Richards, of Lockhart, Banks & Mc-Lemore, of Longview, and E. A. Camp, of Rockdale, for appellees.
   LEVY, Justice

(after stating the case as above).

The contention of the appellants Dean and Adkisson should, it is believed, be sustained that the agreement of sale and absolute deed to an interest in the oil royalty made to them by Lafayette Jones after the removal by judicial decree of the contractual disabilities which nonage entails constitutes disaffirmance of the deed to the interest in the oil- royalty made by Lafayette Jones during his infancy to A. H. Teat.

It affirmatively appears from the. evidence that A. H. Teat made acceptance of the title to the oil royalty conveyed to him by Lafayette Jones by the deed of date March 9, 1931, through the act of filing the deed on March 11, 1931, for registration in the office of the county clerk. As a legal consequence of the acceptance of the title to the oil- royalty conveyed, the draft which had been delivered to and accepted by Lafayette Jones “payable on the approval and acceptance of title” became immediately payable and negotiable and a binding obligation upon A. H. Teat. A. H. Teat could not thereafter demand the return of nor recall the draft.-signed and delivered by him, although it was not actually paid on the date of March 12, 1931. Lafayette Jones, when the draft was returned unpaid on March 12, 1931, did not himself return or offer to return such draft to A. H. Teat nor direct the First National Bank of Fort Worth; his collecting agent, to do so. On the contrary, it affirmatively appears that Lafayette Jones retained and continued to hold the draft after March 12, 1931, with the collecting bank, and directed its return for another effort at its collection from A. H. Teat through the First National Bank of Longview. All these acts stated above occurred during the period of time that Lafayette Jones was a minor, as affirmatively appeared he was, and before the date of the judicial decree of removal of his disabilities as a minor. Lafayette Jones, however, on March 25, 1931, and after the date of the entry of the final decree of the removal of his disabilities as a minor, made, in point of undisputed fact, a formal executory agreement as to lease of the land for oil production and of absolute sale of a portion of the oil royalty to Dean and Adkisson. There was deposited in escrow-an absolute deed to an undivided one-half of his interest in the one-eighth of the oil royalty executed and acknowledged by Lafayette Jones and his wife and dated March 25, 1931. This deed was delivered to appellant Adkisson and by him filed for record in the office of the county clerk on April 30, 1931. The purchase money provided for in escrow was on April 29, 1931, paid over to and received and kept by Lafayette Jones. Dean and Adkisson had full actual notice at the time of the execution of the agreement and of the deed of the sale and conveyance to A. H. Teat.

The removal on March 24,1931, by judicial decree of the contractual disabilities which nonage entails fully invested Lafayette Jones with the power and capacity and subjected him to all the obligations which he would have or be subjected to if he had actually reached the age of 21 years. Article 5921, R. S.; Brown v. Wheelock, 75 Tex. 385, 12 S. W. 111, 841. Immediately upon being placed in the status of a person of full age and with legal capacity to act as a free agent, as is the legal effect of the judicial decree, Lafayette Jones made a sale and deed of absolute conveyance of a portion of the oil royalty interest to Dean and Adkisson, who were third persons not in privity of relation in any wise of the first grantee, A. H. Teat. The instrument conveying the fixed interest of one-sixteenth of the oil royalty interest is inconsistent with the former instrument conveying a fixed interest of one-eighth in the same royalty interest. If the conveyance of the entire one-eighth interest must stand, the conveyance of the one-sixteenth interest could not stand. The last conveyance of necessity destroys the force and effect of the first con-. veyance so far as to make it not possible for the two to stand together and both be given effect according to their terms. The absolute sale and conveyance of the same land or interest in land to a third person, not within privity of relation with the first-grantee, is a well-recognized method, and the settled doctrine in this state, of giving expression to an unequivocal intent of disaffirmance of an infant’s conveyance. Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837; 1 Elliott on Contracts, § 345, p. 560; 31 C. J. § 70, p. 1020, § 80, p. 1026. The effect and result of the disaffirmance of a conveyance of land entered into during infancy annuls and renders it thereafter void on both sides ab initio. 23 Tex. Jur. § 48, p. 742; 1 Elliott on Contracts, § 352, p. 569; 31 C. J. § 167, p. 1071; Gage v. Menczer (Tex. Civ. App.) 144 S. W. 717. The parties are in the same status in which they would have been if the contract had not been made. As a valid disaffirmance cannot be retracted without the assent of the other party, it follows that the deed to Dean and Adkis-son is effectual and must prevail in this case. As noted by the cases above cited, and declared in other cases, whether the deed amounts to a disaffirmance becomes a question, not for determination by the jury, but, of pure law for the determination of the court. Peterson v. Laik, 24 Mo. 541, 69 Am. Dec. 441, and other cases.

The appellees urge that it should be deemed conclusively established in this record that Lafayette Jones was over 21 years old at and before March 9, 1931, the beginning of this controversy. That contention is based upon the recitals in a certain judgment of the district court rendered on October 22, 1931, in an action in trespass to try title to mineral interests in a certain tract of land. Neither the parties nor the mineral interest was the same as now in controversy. The judgment in that case adjudged title to the property in suit to the plaintiff against Lafayette Jones and another defendant claiming under Lafayette Jones. It appears in that case that Lafayette Jones pleaded minority at the date the deed was made. The judgment sets out the answer of the jury upon the only special issue submitted in that case, which answer was that “Lafayette Jones was twenty-one years old at the date of the deed to the plaintiff.” Under the well-settled rules, that judgment cannot be introduced in evidence to establish the facts on which it was rendered. Neither can that judgment, it is concluded, be made to constitute an estoppel in the present suit. The judgment in legal effect was purely a judgment in personam and not in rem. A judgment in personam differs from a judgment in rem in that a judgment in rem is a solemn declaration of the status of some person or thing. As by way of analogy, a judgment of naturalization is a judgment in rem establishing the status of the person naturalized to be that of a citizen of the United States. Such judgment in rem may be offered in evidence as establishing the status of a person. Some of the cases cited by the ap-pellees involves judgment in rem. It is further claimed by the appellees that estoppel may be predicated by A. H. Teat upon misstatement by Lafayette Jones as to his age at the time the agreement of the sale was entered into. Although there may be some evidence to show that Lafayette Jones stated to A. H. Teat that he was 21 years old, and that A. H. Teat relied upon such statement, yet it is beyond question in the record that A. H. Teat had knowledge that Lafayette Jones was in fact a minor and was so claiming and had his disabilities removed by judicial decree before A. H. Teat paid the draft given for the purchase money and before A. H. Teat conveyed the property to W. W. Hawkins.

It is further urged by the appellees that, although the disaffirmance might be deemed valid and effectual to vest in Dean and Adkisson title to the one-sixteenth portion of the oil royalty interest conveyed to them, yet, in view of the attending circumstances, the appellee A. H. Teat and his ven-dee, H. H. Coffield, have remedy and rights that may consistently stand and be urged in and to the remaining undivided one-half of the one-eighth oil royalty against Lafayette Jones. After the decree removing the disabilities of minority of Lafayette Jones -and after the agreement of sale to Dean and Adkisson, the following transaction- occurred: That A. H. Teat paid the draft signed by him and the money so collected was remitted to the Fort Worth bank. That the Fort Worth bank promptly issued its cashier’s check for the amount of the remittance and delivered that cashier’s check to Lafayette Jones, who indorsed his name on the back of the check and deposited it with the Fort Worth bank. Lafayette Jones admits his indorsement of the cashier’s check and does not deny that he knew that A. H. Teat had remitted that sum of money to the bank on the returned draft on the Longview bank and that the money was to be paid to him. The only reasonable conclusion in the evidence, and it hardly admits of doubt, is that the money represented by the cashier’s cheek was received and placed by Lafayette Jones to his credit in his regular checking account in the Fort Worth bank; that Lafayette Jones knew at the time that the money was remitted by A. H. Teat in payment of the purchase price of the royalty interest previously deeded to him. If Lafayette Jones did not so know, he was culpably negligent in failing to acquire the knowledge. In ' receiving and appropriating the delayed remittance for the payment of the purchase price of the royalty interest, Lafayette Jones evidently intended to ratify and to acquiesce and to withdraw avoidance of the transaction in part and at least as far as concerns the .interest in the royalty remaining vested in him at the time after deducting the one-sixteenth interest passed by conveyance to Dean and Adkisson. If such was not the reasonable import of the act of accepting the delayed payment, then for what purpose did Lafayette Jones take and appropriate the purchase price of the oil royalty? Certainly, in the circumstances, an intention to commit a fraud upon A. H. Teat by taking and accepting the delayed payment could not be imputed to Lafayette Jones. In the circumstances, estoppel, it is concluded, would operate and be applicable against Lafayette Jones from asserting avoidance or invalidity of right and interest of A. H. Teat, and his vendee, H. H. Coffield, in so far and to the extent of the one-sixteenth interest in the oil royalty remaining .in excess of the one-sixteenth interest passed to Dean and Adkisson.

The judgment of the district court is reversed and here rendered in favor of Dean and Adkisson against H. H. Coffield for the one-sixteenth interest in the oil royalty conveyed to them by Lafayette Jones, and in favor of H. H. Coffield against Lafayette Jones as to one-sixteenth interest in the oil royalty; that judgment be rendered in favor of H. H. Coffield against A. H. Teat as his warrantor in title in the sum of $650, being one-half the price of the oil royalty conveyed; that the judgment of the trial court as to Lafayette Jones be in all things affirmed. All the costs of the trial court incurred by Dean and Adkisson and one-half the costs of appeal will be taxed against H. H. Coffield, and all the remaining costs of the trial court and one-half the costs of the appeal will be taxed jointly and severally against A. H. Teat and Lafayette Jones.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    DAVIS et al. v. MECKEL.
    No. 8992.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Kerr & Gayer, of San Angelo, and Brian Montague, of Del Rio, for appellánts.
    Morriss & Morriss, of San Antonio, James Cornell, of San Angelo, D. W. Elliott, of Sonora, R. G. Hughes, of San Angelo, and George Wynn, of Sonora, for appellee.
   MURRAY, Justice.

This is a suit for an injunction to prevent the closing of a road claimed as a public road by prescription. This is the second appeal of this case, the first appeal being styled Meckel v. Davis, and reported in (Tex. Civ. App.) 39 S.W.(2d) 1106, 1107, also (Tex. Sup.) 42 S.W. (2d) 417. At the close of the evidence by appellants the trial court instructed a verdict for appellee, thereby holding that the testimony was insufficient to show the establishment of a public road by prescription.

On the former appeal of this case this court reversed and remanded the judgment of the trial court, holding that the evidence was insufficient to show an establishment of a public road by prescription. ' In the former opinion is found the following language: “The road in controversy was nothing more than a section of a neighborhood ranch road, maintained by neighboring ranchmen primarily for their own and each other’s convenience, although it is true, incidentally, that other members of the general public have occasionally traveled over it. ⅜ * * Such use was in no sense adverse to appellant, since it was with his open and obvious permission, and subject to the restraints imposed by him and the dominion asserted by him in retaining and exercising the exclusive control of the maintenance of the road. * * ⅜ The finding of the jury, that the public use of the roadway was adverse to appellant, is without any evidence, either direct or circumstantial, to support it; but, on the other hand, it is in my opinion contrary to all the evidence in the case.”

We have examined the record of the former appeal and feel that these statements of facts are justified from the record. However, in the present appeal we have a very different record. Appellants have presented a much stronger ease this time. Many witnesses testified in this case who did not testify on the former trial. Neither R. Walter Davis, R. K. James, Mansfield Haggett, E. O. Saunders, nor R. A. Halbert testified on the former trial. They are very important witnesses in the present case.

In the former trial it was not shown that the county had ever worked the road. In the present trial it is shown by the witness R. K. James that the county did work this road. In the former trial it was not shown that the county ever regarded this road as a public road. In the present trial it is shown that this was the only road from Sonora, county seat of Sutton county, to Sherwood, county seat of Irion county, and was formerly the only road between Sonora and San Angelo, county seat of Tom Green county. That it is the only road to Mertzon, the nearest shipping point on the railroad. That it has been used openly and continuously since prior to 1890.

It is further shown that appellee and his predecessors in title have lived near this road and have known of its open, notorious, and continuous’ use as a public road during all of these years.

It is contended by appellee that there is no evidence to show that this use was adverse and under claim of right, but on the other hand, that there were gates on this road, and that when herds of live stock were brought through he was always notified, and that this showed a permissive use of the road, which could never ripen into a prescriptive right. We agree with the proposition that a permissive use of a road can never ripen into a prescriptive right, but the question here presented is: Do the facts in this case raise the issue of adverse use of this road?

That the road has been used for more than forty years is not disputed. In fact, there is no evidence introduced by appellees, but all the facts above stated were positively testified to by witnesses for appellant. They are ;undenied in any way, and in view of the conduct of the trial court in instructing a verdict for appellee, are to be taken by us as true and construed in the most favorable light to appellant.

Appellee insists that there is no evidence that the use of this road was adverse to appellee and under claim of right. There is no question but what it is necessary to prove that the “user” was adverse, but this does not have to be established by direct evidence. It may be inferred from all the circumstances in the case, or it may be inferred from the nature of the “user” of the road. In this connection the evidence shows that -the road had been in use for more than forty years, being traveled by the public generally; that originally it was the only road from the county seat of Sutton county to the county seat of Tom Green county; that it is now the only road from Sonora to the county seat of Irion county. That it is now the only road from Sonora to Mertzon, the nearest shipping point on the railroad. That this road was used by the public, openly, notoriously, and with the knowledge of the various owners of the land now held by appellee. That this road was used by freight wagons, stagecoaches, to move cattle, goats, and sheep over, and was used by anybody and everybody who had an occasion to use it, without let or hindrance. These facts it would seem would be sufficient to show that the “user” was adverse. It has been expressly so held in the case of Boone v. City of Stephenville (Tex. Civ. App.) 37 S.W.(2d) 842. See, also, Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Id., 93 Tex. 591, 57 S. W. 563; Galveston, H. & S. A. Ry. Co. v. Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874; City of Ft. Worth v. Cetti, 38 Tex. Civ. App. 117, 85 S. W. 826; Weber v. Chaney (Tex. Civ. App.) 5 S.W.(2d) 213.

Appelleé insists the case of Weber v. Chaney, supra, is favorable to his contention, but a careful reading of that case is against the action taken by the trial court in the present case. In the Weber Case the question of “adverse user” was submitted to the jury as a question of fact and the jury found that the “user” was not adverse. We are not holding in the present case that the jury could not have found in this case that the “user” was not adverse, but we do hold that it was a question of fact which should have been submitted to the jury.

As stated before, appellee contends that there were a number of gates on this road which the public opened and shut as they passed through and that when live stock were driven through the owner of the land was always notified, thus showing a permissive “user” of the road. In our opinion the fact that gates were on the road can be of no great consequence. Article 837, Penal Code, contemplates and, in effect, authorizes landowners to place gates on public roads, and only provides punishment where such landowners do not keep such gates in such condition as to ¡not unduly interfere with the traveling public. Koads may be established notwithstanding the fact that they are closed in hy gates. The effect on the running of prescription by the placing of gates would be a question of fact for the jury to pass upon. They might consider the placing of gates as a denial of the road or as an admission of the road. Boone v. City of Stephenville (Tex. Civ. App.) 37 S.W.(2d) 842; Weber v. Chaney (Tex. Civ. App.) 5 S.W.(2d) 213; Alexander v. Schlei-cher County (Tex. Com. App.) 3 S.W.(2d) 75; Vidaurri v. Martinez (Tex. Civ. App.) 260 S. W. 651; Id. (Tex. Com. App.) 275 S. W. 999; 19 C. J. 893, 987.

The fact that ranchmen always telephoned ahead when they were coming through with live stock was explained by the statement that this was a universal custom in that section of the state and was done, not to secure permission to pass through, but as a courtesy to the landowner to enable him to take such means as he might see fit to prevent his own stock from becoming .commingled with the stock being driven through. Whether or not this was a sufficient explanation constituted a question of fact which was for the jury.

The court should not have given the instructed verdict for appellee, but should have submitted the facts to the jury.

' The judgment of the trial court is reversed, and the cause remanded for a new trial.


text:
    TEXAS EMPLOYERS’ INS. ASS’N v. SUTTLES et al.
    No. 8994.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1933.
    Rehearing Denied March 1, 1933.
    Wood & Wood and Dan Moody, all of Austin, for appellant.
    Morriss & Morriss, of San Antonio, C. H. Gilmer, of Rock Springs, and C. J. Andrews, of San Antonio, for appellees.
   MURRAY, Justice.

Maida Suttles, Nell Suttles, Bob Suttles, Billy Suttles, and Irvin Mamie Suttles, hereinafter called claimants, are the widow and four minor children of deceased, G. M. Sut-tles, commonly called Mamie Suttles, who was killed July 9, 1930, in Kerr county by an accidental explosion of dynamite.

They sue under the Workmen’s Compensation Act. Appellant was the insurance carrier at the time of the accident for Brown & Root, Inc., a corporation engaged in road and general construction contract work, and deceased was for eleven months and four days before his death in the employ of Brown & Root, as one of its foremen on sundry construction work which Brown & Root had been doing for a corporation known as Moody-Sea-graves Ranch Properties, Inc. (which we shall refer to as Moody-Seagraves), in Kerr county. Moody-Seagraves had bought a large body of land in Kerr county, and Mr. Seagraves of that concern was improving that portion in question of this land, known as his home place, as a pleasure and recreation resort. Moody-Seagraves had been doing considerable other improvement on the land, other than that done by Brown & Root, the latter concern not being engaged in building construction, that is, constructing houses; therefore Moody-Seagraves also carried compensation insurance, their insurer being appellee Lloyds Insurance Company. So the two concerns which had been engaged in construction work on the land, one corporation, the owner, building a large number of houses and such like construction, carried insurance with one insurer, the appellee Lloyd’s Casualty Company of New York, and the other, which was doing a general contracting and construction work on the land for Moody-Seagraves, carried its compensation insurance with appellant. In the course of about eleven months during which Brown & Eoot, Inc., had been doing construction work on this ranch for Moody-Seagraves they had constructed on the land, a rough and broken country, some nine miles of roadway, an airport, a golf course, a “Tom Thumb” golf course, or sunken garden, a target range, bridle paths, etc., and were engaged in constructing and had about completed a fish pond. In starting to put in a blast near this fish pond deceased met his death by premature, or accidental explosion. The total construction work which Brown & Eoot had thus done for Moody-Seagraves on the Seagraves home place amounted to “approximately $60,000.00,” according to their superintendent, Mr. O. L. Neyland; $60,000 or $80,-000, according to Wilson, foreman for the ranch company. In all its construction, deceased and his brother Homer Suttles were respectively foremen over respective gangs, and in charge of the work under Superintendent Neyland. Brown & Eoot maintained offices and camp and commissary and bookkeeper, and all tools, materials, and supplies, on the ground.

Part of Brown & Boot’s work on this land was being done by contract with any extras on what they termed “force account,” that is account was kept for all time and materials expended or used on these extras, and Moody-Seagraves charged up by Brown & Eoot at cost plus 10 per cent. Both deceased and his brother Homer, as foremen continuously on their work, had instructions at all times from Brown & Eoot, through the superintendent, to undertake and do at any time any extra job which Moody-Seagraves, through its representatives, might request. In this way the bridle paths, target range, and several of these smaller improvements were constructed, and charged to force account. The particular job on which deceased was killed was the construction of a fish pond across Bear creek, a dry stream except for a seep spring in the basin, the work on which project included construction of a rock and masonry dam across the creek, and cleaning out the basin. The agreement, which was oral, made on the ground when the representatives of both «concerns went over to look at the site, was that Brown & Eoot should receive between twenty-three and twenty-four hundred dollars for building the dam, and any extra work was to be paid for on cost plus. A few days before Suttles was killed, Mr. Neyland, the superintendent, went away to be gone several weeks, before he left, however, having taken Homer Suttles, the other foreman, brother of deceased, away from that job and sent him over into the Kimble county end of the place, to build a dam there for Mr. Moody, leaving deceased in charge to complete the fish pond job, and again, as usual, instructing deceased to do any extra work called for by Moody-Seagraves, keeping usual account for time and materials to be charged up on force account, or cost plus. About July 4th, Mr. Seagraves came out to the resort, and went with his foreman over to see this fish pond, which was between two and three miles from his residence, and while there, in conversation with deceased, who had his men at work on the project, requested deceased to have some large rocks and trees placed in the basin, as a shade for fish, and to blast out the seep spring back a distance of fifteen, eighteen, or twenty feet into the bank; which work deceased told him he would do. Mr. Sea-graves also at the same time wanted an additional three or four feet of height added to the dam.

A few days later, on July 9th, while some of his men were still working on the project, the deceased foreman started to put in a blast to blast out the spring. At that time the foreman for Moody-Seagraves, Mr. Wilson, was near by, engaged with two of his men in digging a ditch from a nearby well, to drain water into the pond, and, in passing to put in the blast, deceased remarked to Wilson that he, deceased, was then going to set off the blast, and Wilson walked down to the spot with him. While deceased was preparing his caps and dynamite, the explosion occurred from which he died later in the day. Wilson was so near that he, too, was shocked and somewhat injured by the blast.

Deceased, who had been working constantly for more than eleven months in the employ of Brown & Eoot, as their foreman in charge of his- gang of workmen, and who was receiving $5 a day straight time, or $150 per month, payable on the 5th and 20th of each month, was later paid, that is, his widow was paid, by Brown & Eoot for the nine days in July, including the day of his death; and Brown & Eoot were also later paid by Moody-Sea-graves, according to the deposition of Superintendent Neyland “$40.00 or $50.00 for building fish traps out of rock in the bottom of the fish pond,” but were not paid for blasting out the seep, as that work was never done. The premature explosion which killed deceased prevented that.

After claimants, the widow and children, presented their compensation claim to the board, and appellant disputed their liability, asserting liability of the Moody-Seagraves’ insurer, claimants thereupon made both insurers parties; and after the board awarded compensation against appellant, discharging the Moody-Seagraves’ insurer, and appellant having given notice and appealed, claimants, bringing both insurers in, likewise appealed and filed their suit; and, on trial, the two suits were consolidated. Likewise appellant having appealed from judgment of the trial court, claimants, the widow and children, perfected their appeal as against the insurer for Moody-Seagraves, in order that no possibility might exist as to their right to recover compensation against one or the other of the insurers.

The case was tried before the court without a jury and judgment entered against appellant, Texas Employers’ Insurance Association, in favor of claimants, for compensation for $20 per week for a period of 360 weeks, to be paid in a lump sum, amounting to $6,530.-98. An appeal was taken by employers’ insurance association.

No findings of fact and conclusions of law were filed, and none were requested, it, therefore, becomes our duty to presume that all issues of fact raised by the evidence were decided against the appellant and- to uphold the judgment of the trial court, if there is sufficient evidence in the record to support it. Pennington v. Fleming (Tex. Civ. App.) 212 S. W. 303; Blewett v. Richardson Independent School Dist. (Tex. Civ. App.) 230 S. W. 255; Cooks’, Waiters’ & Waitresses’ Union, No. 399 v. Theoharis (Tex. Civ. App.) 228 S. W. 984.

The evidence clearly shows that Mamie Suttles, the deceased, at the time of the fatal accident was on the payroll of Brown & Root, Inc.; that he was their vice principal in charge of a gang of workmen, engaged in completing a fish pond that Brown & Root had contracted to build; that at the time of the making of the contract extras were contemplated and the manner in which they were to be paid for was provided, that is on a cost plus basis; that deceased had been instructed to perform all extras requested by Moody-Seagraves or their representatives; that the blasting out of the spring was requested by Mr. Seagraves; that while preparing for this blasting deceased lost his life from an accidental explosion; that Brown & Root paid deceased wages for nine days in July, which included the day Mamie Suttles was killed; that Mr. Seagraves had been gone from the premises some four or five days when the explosion occurred; that the equipment and material used, or attempted to be used in this blasting was furnished by Brown & Root.

We feel that, under these facts and circumstances, no other conclusion can be reached other than that Mamie Suttles received his fatal injuries while in the course and scope of his employment by Brown & Root, Inc.

Appellant contends that Mamie Suttles, at the time of the injury, was engaged in the live stock industry and therefore cannot recover under the Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended). We cannot agree with this contention. There is no evidence in the record that the water from the spring was to be used for any other purpose than for the fish pond, and it is shown that the building of the fish pond was a part of the general scheme to develop this ranch as a summer home, pleasure resort, and hunting and fishing lodge. This was construction work and not ranch work. Vol. 28 R. C. L. p. 718.

Appellant also contends that either Mamie Suttles had been lent to Mr. Seagraves or had left his duties and gone off at the request of a third person. We are unable to agree with this contention. We feel that the evidence in the case does not justify such a conclusion.

Appellant further contends that Mr. Sea-graves had assumed control of Suttles and had undertaken to supervise the details of his work and that Suttles had thereby become the employee of Moody-Seagraves. We do not feel that the facts as above stated will bear out this contention.

Appellant further complains that the average weekly wage of the deceased should have been calculated under the provisions of subdivisions 1 and 2, § 1, art. 8309, R. S. We do not agree with this contention, but feel that the facts in this case justify the determining of the average weekly wage under the provision of subdivision 3, § 1, art. 8309, R. S., which provides, in effect, that for good and sufficient reasons the average weekly wages may be computed in any manner just and fair to both parties. Howard v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 292 S. W. 529; Petroleum Cas. Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553; Texas Employers’ Ins. Ass’n v. Storey (Tex. Com. App.) 17 S.W.(2d) 458; Norwich Union Ind. Co. v. Wilson (Tex. Civ. App.) 17 S.W.(2d) 68; Tex. Ind. Ins. Co. v. Wingo (Tex. Civ. App.) 47 S. W.(2d) 397; Bankers Lloyds v. Pollard (Tex. Civ. App.) 40 S.W.(2d) 859; Ind. Ins. Co. v. Jago (Tex. Civ. App.) 49 S.W.(2d) 943.

Appellant further complains that the trial court erred in allowing interest prior to the date of the judgment on past due and unpaid installments. This question has been definitely decided against the contention of appellant in the following casds. Employers’ Ind. Corp. v. Felter (Tex. Civ. App.) 264 S. W. 137; Consolidated Underwriters v. Saxon (Tex. Com. App.) 265 S. W. 143; Home Life & Accident Co. v. Orchard (Tex. Civ. App.) 227 S. W; 705.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

. Texás Employers’ Insurance Association, appellant herein, insists in its motion for a rehearing that the cases of Maryland Casualty Company v. Donnelly (Tex. Civ. App.) 50 S.W.(2d) 388, and Denton v. Yazoo & Mississippi Valley R. Co., 284 U. S. 305, 52 S. Ct. 141, 76 L. Ed. 310, support its contention, and, if followed by us, would require a reversal of tbis ease on the theory that Mamie Suttles at the time of his fatal injury had left his employment by Brown & Root and had been lent to Moody-Seagraves. We do not agree with appellant’s contention.

These two cases hold, and we believe it to be the law, that though a person may be in the general employ of one person, if he is lent to another person who assumes control over him and authority to direct and control both the manner and method of doing the work, such a servant becomes the special employee of such third person and ceases to be the employee of his general master.

We held in our original opinion and we reaffirm here that the facts in this case do not warrant the conclusion that Mamie Sut-tles had become the special employee of Moody-Seagraves.

In the case of Maryland Casualty Co. v. Donnelly, supra, Donnelly was working for Busby, who was engaged in the transfer business. Busby had a contract to haul material and deliver it to the south end of the plant. This he did and thereby completed his contract. After the material arrived at the end of the plant, the builder’s foreman directed that the material be carried inside the plant. Donnelly undertook this work under the direct control of such foreman, who directed both the manner and method, of doing such work. We have pointed out that the facts in the present case are very different. It was Brown & Root’s work to build the fish pond. The blasting of the spring was a part of this work. Suttles was therefore pursuing his master’s business when he was injured.1

The fact that the work had been pointed out by Mr. Seagraves does not justify the conclusion that he had assumed to dictate the manner and method of doing same, and especially when Mr. Seagraves had been gone from the ranch for some five days when the injury occurred.

In the case of Denton v. Yazoo & Mississippi Valley R. Co., supra, the ease was decided largely on the ground that a regulation of the Postmaster General, adopted by authority of a federal statute placed the control of loading mail in a mail car exclusively under the mail clerk and no one else. This controlling fact is not involved in the present case. However, the' Denton v. Yazoo & M. V. R. Co. Case, supra, cites with approval the eases of Standard Oil Co. v. Anderson, 212 U. S. 215, 29 S. Ct. 252, 53 L. Ed. 480, and Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922, which two decisions we feel uphold the decision we have made herein.

The motion for a rehearing will be overruled.


author: HIGGINS, Justice.

text:
    REPUBLIC INS. CO. v. HIGHLAND PARK INDEPENDENT SCHOOL DIST. OF DALLAS COUNTY.
    No. 2766.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied March 9, 1933.

      Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant.
    • J. Harold Goode and Bell & Clark, all of Dallas, for appellee.
    James Y. Allred, Atty. Gen., and Sidney Benbow, Asst. Atty. Gen., amicus curias for the state.
    Worsham, Rollins, Burford, Ryburn & Hincks and Allen Charlton, all of Dallas, •ámieus curiae for Gulf Ins. Co.
   HIGGINS, Justice.

This is a suit by the Highland Park Independent School District of Dallas County, Texas, against the Republic Insurance Company, a Texas' fire insurance corporation, domiciled in Dallas county, to recover balances alleged to be due by said company for taxes levied against it for the years 1926 and 1927.

The parties will be designated as they were in the court below.

It was alleged the tax for 1926 amounted to $18,978, and a payment thereon of $10,523:20 was made January 31,1927, leaving a balance of $8,454.80, due and unpaid.

For the year 1927 it was alleged the tax amounted to $12,237, upon which a payment of $4,887.90 was made January 31, 1928, leaving a balance of $7,349.10 due and unpaid. ■

The suit is to recover the said balances with statutory penalty, costs, and interest.

Judgment was rendered in plaintiff’s favor for $10,984.23, taxes, etc., for the year 1926, and $8,675.15, taxes, etc., for the year 1927.

It was alleged plaintiff’s board of trustees for the years in question levied a tax of $1 per hundred valuation against all property in the district for the benefit of the public schools within the district, and “thereafter the tax assessor of Dallas county, as the duly and legally selected and designated assessor of said District, after the defendant had failed and refused to do so, duly and legally listed, inventoried and assessed said property along with other property in said district, in the manner and at the valuation shown in said exhibits, and included same in his regular tax rolls for said years.”

While-it is alleged by plaintiff in its original petition that defendant failed and refused to list, inventory, and assess its property, it nevertheless appears from the evidence that defendant prepared and tendered upon the official forms a list, inventory, and assessment of its property to the tax assessor of Dallas county for each of the years in question, with certain deductions noted thereon, which it claimed it had the right to deduct from its assets as nontaxable.

With reference to the alleged failure of defendant to render its property for taxation, plaintiff, in a supplemental petition, alleged: “Plaintiff specially denies that any valid assessment at any time was tendered or offered to the assessor by the Defendant for either'of said years 1926 and 1927, or that any assessment whatever was accepted from Defendant by the Assessor for either of said years or that any assessment was at any time made or equalized except the assessment herein sued on, and the Plaintiff specially alleges that after Defendant failed and refused to make a correct and legal assessment for said years, the same was made by the tax assessor, that the Defendant and its agents and representatives had full knowledge of the amount of said assessments, the items it contained, and the separate amounts of such items and knew that the tax assessor would not and did not accept, approve or execute any other assessments suggested or offered by it and that after the making and execution of said assessment by the tax assessor, it was finally and judicially approved by the duly existing Board of Equalization.”

The only two issues submitted read:
“Special Issue No. 1.
“Do you find from a preponderance of the evidence that the Tax Assessor of Dallas County prior to October 2nd, 1926, rejected as the rendition of the Defendant’s property for taxation for the year 1926, the proposed rendition tendered to him for that year by the Defendant? Answer Wes’ or ‘No.’
“Special Issue No. 2.
“Do you find from a preponderance of tlie evidence that the Tax Assessor of Dallas County prior to October 4th, 1927, rejected as the rendition of the Defendant’s property for taxation for the year 1927, the proposed rendition tendered to him for that year by the Defendant? Answer ‘Yes’ or ‘No.’ ”

Both of these issues were answered in the affirmative.

It will be noted both of these issues assume a rendition was tendered by defendant for both years.

Upon the inventory sheet for the year 1926, tendered by defendant to the assessor, it listed “Assets $4,844,596.” and then deducted the following items:

Premium Reserve.$1,364,364.00

Conflagration Fund. 500,000.00

Losses . 116,537.00

Reinsurance balances due. 46,344.00

Other deductions were claimed, the correctness of which is not questioned by plaintiff.

The inventory tendered by defendant was kept by the assessor, and from the data therein given, and other sources, the assessor made up a new inventory and assessment. Upon this he omitted the deductions listed above, thereby increasing the value of the taxable assets of defendant in the amount of such deductions.

For 1927 the procedure was the same as in 1926, except that in the inventory made up by the assessor in 1927 he deducted the premium reserve.

Prior to and subsequent to the action of the assessor in making such inventories and assessments, defendant’s agent attempted to secure from the assessor the acceptance of the inventories and assessments tendered by it, with the deductions claimed, and was unsuccessful in its efforts so to do.

The inventories and assessments made by the assessor were by him submitted to the commissioners’ court, sitting as a board of equalization, and by it approved.

Opinion.

An assessment, as provided by law, is an indispensable prerequisite to the validity of a tax against an individual. Cooley on Taxation (4th Ed.) 596; 37 Cyc. 987; Clegg v. State, 42 Tex. 605; Sullivan v. Bitter, 51 Tex. Civ. App. 604, 113 S. W. 193; Richardson v. State (Tex. Civ. App.) 53 S.W.(2d) 508; Cook v. Ry. Co., 5 Tex. Civ. App. 644, 24 S. W. 544.

In Federal Royalty Co. v. State (Tex. Civ. App.) 42 S.W.(2d) 670, 674, Justice Walthall, speaking for this court, said: “It is the law that all tax assessments, to be valid, must be made as provided by the statute.”

And in Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457, 459, Justice Smith, in referring to what is now article 7329, Rev. St. 1925, said: “Nor can the injured property owner be cut off by statute from showing, in such suit, that the taxable value of his property has not been ascertained by the authority or in the manner provided by law, because this right also is vouchsafed to him in the Constitution, in section 1 of article 8, which provides that the taxable value of property ‘shall be ascertained as may be provided by law.’ It was in obedience to this provision that the Legislature provided the present method, embraced in title 22, of the Revised Statutes, for ascertaining the taxable values of property, and the constitutional guaranty follows the method thus prescribed. It is the duty of the oonstituted authorities to pursue that method in ascertaining the taxable value of property, and the owner may invoke these statutory provisions to defeat a suit to force him to pay taxes not ascertained as thus provided, notwithstanding a subsequent statute which would deny him such defense. We have stated rules which we think are obvious and elemental.”

In the same case (277 S. W. 89, 90), Judge Bishop, of the Commission of Appeal, said: “Our Constitution also provides that ‘taxation shall be equal and uniform,’ and that ‘all property in this state * ⅜ * shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.’ Article 8, § 1. In a suit to recover taxes the owner of the property assessed has the right under this provision to show in defense of the action that the taxes assessed were not ‘equal and uniform’; that the value of his property was not ascertained as provided by law; and that the value assessed is in excess of its real value.”

An assessment involves, first, the preparation of a list of the property subject to the tax; and, second, the valuation of such property in the manner prescribed by law, and by the constituted authority. 26 R. C. L. Title Taxation, § 311; 37 Cyc. 987, and footnote 84.

The defendant questions the validity of the assessment against it made by the tax assessor in the manner stated above. It contends the assessor had no right to reject the inventory and valuation tendered by it and substitute therefor his own inventory and appraisement.

There was no issue between the defendant and the assessor as to the gross value of the former’s assets. For both years they estimate the gross values at the same amounts. The controversy arose over the claim of the defendant that it had the right to deduct from the value of its gross assets the items indicated above and the refusal of the assessor to allow such deductions.

The law requires the taxpayer to render his property for taxation by listing the same, making oath thereto, and delivering the same to the assessor, whose duty it is to “enter the said property on his tax rolls.” Articles 7185-7189, R. S.

Article 7192 provides that if the taxpayer refuses or neglects to list his property when called upon so to do by the assessor, such assessor shall enter the name of such person in a book. Subdivision 6 of article 7206 requires the assessor to furnish the names of such persons to the board of equalization, “ * ⅜ ⅜ together with the assessment of said person’s property made by him through other information; and said board shall examine, equalize and correct assessments so made by the assessor, and when so revised, equalized and corrected, the same shall be approved.”

Article 7193 provides: “In all eases of failure to obtain a statement of real and personal property from any cause, the assessor of taxes shall ascertain the amount and value of such property and assess the same as he believes to be the true and full value thereof; and such assessment shall be as valid and binding as if such property had been rendered by the proper owner thereof.”

The quoted article has no present application, for the facts did not exist which would authorize the assessor to inventory and value defendant’s property. This is true because the defendant had tendered its inventory and valuation upon the official form.

The quoted article (7193), and articles 7205 and 7218, give to the assessor the authority to list and value property not rendered by the owner and place the same upon the un-rendered roll.

In the event the list tendered by a taxpayer omits property which he owns, the assessor is by these articles authorized to list and value the omitted property and place the same upon the unrendered roll.

But we know of no statute conferring upon an assessor .authority to reject a list and valuation tendered by a taxpayer and substitute one of his own and place upon the rendered roll the assessment so made by him. The plaintiff seems to have recognized this, for in apparent justification of the action of the assessor it alleged the defendant had failed and refused to list, inventory, and assess its property.

The law affords a remedy for the adjustment of differences between the taxpayer and the assessor such as here arose.

Article 7185 provides that if the assessor is not satisfied with the valuation as rendered by the owner, he shall refer the same to the board of equalization for its action, and notify the person from whom he received the list that he has referred said valuation to the board.

A portion of the assessor’s oath prescribed by article 7214, reads: “ * * * That I will make up and attach to each assessment sheet made up and sworn to by the said property owners, their agents or representatives, a true assessment and valuation of said property, together with a memoranda of all facts which I may learn bearing upon the value of said taxable property, * * * the true value of such property; and that I will attach said memoranda and statement of facts that I may ascertain as aforesaid to the said assessment sheets of the respective property owners.”

Article 7211, in substance, provides, in case of difference between the person rendering and the assessor as to the value of property listed, that the matter shall be referred to the commissioners’ court, which shall hear evidence and determine the true value.

Article 7212 provides: “The boards of equalization shall have power, and it is made their official duty, to supervise the assessment of their respective counties, and, if satisfied that the valuation of any property is not in accordance with the laws of the State, to increase or diminish the same and to affix a proper valuation thereto, as provided for in the preceding article; and, when any assessor in this State shall have furnished said court with the rendition as provided for in the preceding article, it shall be the duty of such court to call before it such persons as in its judgment may know the market value or true value of such property, as the case may be, by proper process, who shall testify under oath the character, quality and quantity of such property, as well as the value thereof. Said court, after hearing the evidence, shall fix the value of such property in accordance with the evidence so introduced and as provided for in the preceding article; and their action in such case or cases shall be final.”

. Article 7213 provides: “If any tax assessor in this State shall fail, refuse or neglect to place upon any rendition as provided in Article 7211 of this chapter, the true value or market value in accordance with the method of fixing such value as provided for herein, or shall fail, refuse or neglect to return to the commissioners court such rendition, together with the oath of the owner or person listing such property for taxes when such oath has been made, as provided for in this chapter, or if the assessor accepts the rendition from any person rendering property for taxation without reading to such person the oath and having it signed and sworn to as provided by law, such failure, refusal or neglect shall be deemed malfeasance on the part of such officer, and shall be cause for his removal from office.”

Article 7206 provides:

“Each commissioners court shall convene and sit as a board of equalization on the second Monday in May of each year, or as soon thereafter as practicable before the first day of June, to receive all the assessment lists or boohs of the assessors of their counties for inspection, correction or equalization and approval.
“1. They shall cause the assessor to bring before them at such meeting all said assessment lists, books, etc., for inspection, and see that every person has rendered his property at a fair market value, and shall have power to send for persons, books and papers, swear and qualify persons, to ascertain the value of such property, and to lower or raise the value on the same.
“2. They shall have power to correct errors in assessments. * * *
“5. Whenever said board shall find it their duty to raise the assessment of any person’s property, they shall order the county clerk to give the person who rendered the same written, notice that they desire to raise the value of same. They shall cause the county clerk to give ten days written notice before their meeting by publication in some newspaper, but, if none is published in the county, then by posting a written or printed notice in each justice’s precinct, one of which must be at the court house door.”

The plain import and meaning of these statutory provisions is, that when an owner tenders to the assessor a listing and valuation of his property for taxation it is the duty of the assessor to receive the same, and in case of difference of opinion between them as to the valuations placed upon the property by the owner, the assessor’s duty then is to refer the matter to the commissioners’ court as a board of equalization, and the court, after notice to the owner, is to hear evidence, settle and fix the disputed valuation.

This is the procedure which should have been followed by the assessor and commissioners’ court in the present instance, for the real difference between the assessor and defendant was as to the true value of defendant’s assets. If the deductions claimed by defendant on its listing were not properly deductible, the commissioners’ court had the authority to correct the defendant’s listing (articles 7206 and 7218) by eliminating same and thereby increase the valuation of its taxable assets. Ferguson v. Steen (Tex. Civ. App.) 293 S. W. 318.

It follows the assessment in this case was not made in a lawful manner, was invalid, and the collection of a tax based thereon cannot be enforced.

What has'been said disposes of all contentions of plaintiff respecting the necessity of an assessment and the validity of the ones in .question, but it is further insisted by it: First, that defendant, by tendering and paying a portion of the taxes due for each of the years, thereby eliminated all defenses except that of excessive valuation, and there was neither plea nor proof of excessive valuation; second, the defense discussed is not such as is permitted by article 7329, R. S.; third, the action of the board of equalization in approving the assessment made by the assessor is final, and cannot be disturbed.

In support of its first position plaintiff cites the cases of City of Rising Star v. Dill (Tex. Civ. App.) 259 S. W. 652; Id. (Tex. Com. App.) 269 S. W. 769, and Zachry v. City of Uvalde (Tex. Civ. App.) 24 S.W.(2d) 517, 518; Id. (Tex. Com. App.) 42 S.W.(2d) 417.

In each of these cases there was a valid assessment.

In the City of Rising Star Case, the Court of Civil Appeals held that by tendering to the tax collector and also tendering in open court the amount admitted to be due, the defendant waived the ninety days’ notice required by article 7687a, Vernon’s Ann. Civil Statutes, 1918 Supp., as amended by Act of 1919, 36th Leg. (Vernon’s Ann. Civil St. Supp. 1922, art. 7687a).

In the Zachry Case, in the opinic/n rendered by the Court of Civil Appeals, it was broadly stated that “appellants had, by admitting a large portion of the debt, admitted everything had been properly performed, except the equalization,” but such ruling was not necessary to the decision as is apparent from the whole opinion of that court as well as the opinion of the Commission of Appeals.

Writs of error were granted in both of these cases, and the judgments of the'Courts of Civil Appeals affirmed upon recommendation of the Commission of Appeals. It will be noted from the opinions of the Commission of Appeals that affirmance was based upon grounds other than the doctrine of waiver announced in the opinions of the Courts of Civil Appeals. It may be that upon the facts in those cases the doctrine of waiver was px*operly applied, but we think it has no application to the present facts.

The assessment here was not made in the manner prescribed by law; for that reason was invalid, and we do not think it should be considered that by paying the amount it admitted to be just, the defendant should be held to have waived the invalidity of the manner in which the assessment was made ’•against the disputed items and which it claimed were deductible. By the payment made defendant waived the irregular assessment of the property which it conceded to be taxable; but its waiver extended no farther. State v. Hoffman, 109 Tex. 133, 201 S. W. 653.

Nor is article 7329, R. S., to be construed as precluding defendant from interposing the defense of an invalid assessment.

It was necessary for the plaintiff to plead and prove a valid assessment. Under its general denial defendant had the right to disprove such allegation and rebut the evidence offered by plaintiff in support thereof.

To hold that the statute applies to a defense of such a nature would render the statute unconstitutional. Vance v. Town of Pleasanton (Tex. Civ. App.) 261 S. W. 457; Id. (Tex. Com. App.) 277 S. W. 89; Geffert v. Yorktown, etc. (Tex. Com. App.) 290 S. W. 1083; Masterson v. Town of Hedley (Tex. Civ. App.) 265 S. W. 406.

That article 7329 has no application to the defense under consideration is foreclosed against plaintiff by these cases.

Nor is there any merit in the contention that the action of the board of equalization in approving the assessment has any controlling effect upon the question at issue. The invalid assessment made by the assessor was not validated by the board’s action in approving same. Such action is not within the scope of the authority conferred by the statutes upon commissioners’ courts sitting as boards of equalization.

Eor want of a valid assessment, collection of taxes sued for cannot be enforced, and, the case having been fully developed, the judgment is reversed and here rendered in defendant’s favor.

Reversed and rendered.

On Rehearing.

Counsel for appellee, in their motion for rehearing, in some respects seem to misapprehend the effect of our opinion. They assume we hold that when a taxpayer omits property from the inventory tendered to the assessor, the assessment of such omitted property must be made by the board of equalization. It is further assumed we hold the taxpayer has the right to determine the taxable status of his assets, and what portion of his property shall be assessed. No such rulings have been made, and there is nothing in the opinion to support such a view.

Counsel complain of our failure to discuss some of the cases cited by them in support of the validity of the assessment here involved. They particularly rely upon Moody v. City of Galveston, 21 Tex. Civ. App. 16, 50 8. W. 481, 482; Blewett v. Richardson Independent School District (Tex. Com. App.) 240 S. W. 529; and Haynes v. State, 44 Tex. Civ. App. 492, 99 S. W. 405.

These eases were considered and not regarded as in point. For that reason it was not considered necessary to comment upon them.

We will now briefly discuss same. In the Moody Case, the taxpayer, upon the inventory tendered by him, listed “Credits, cash, office furniture, etc., $20,000.” This valuation the assessor refused to accept, and listed and valued the same at $200,000, and placed the same upon the unrendered roll, and submitted the same to the board of equalization which gave the required notice to the public.

We regard the Moody Case as one where the taxpayer omitted to inventory and list a portion of his taxable property, and in such case it was the duty of the assessor to inventory same and place such omitted property upon the unrendered roll. In that case the procedure prescribed by the statutes in the case of unrendered property was observed.

Blewett v. Richardson, etc., is a case where certain taxpayers refused to render their property. The facts are not very fully stated, but it seems the assessments were made as in cases of unrendered property.

Haynes v. State was another case of un-rendered property which was placed upon the unrendered roll by the assessor. It was held that the statute imposing upon the assessor, in such cases, the duty of first listing the property, is directory, and the failure to so list the same did not invalidate the assessment in the absence of a showing by the taxpayer that he suffered by the omission.

The distinguishing feature of these three cases is that they involved assessments of property which the taxpayer had omitted to render;. which property was rendered and assessed by the assessor and placed upon the unrendered roll as the law requires shall be done when property is not rendered by the taxpayer.

In the present case the assessor did not follow the procedure prescribed in such cases. He rejected the lists and inventories tendered by appellant, made lists and inventories of his own, and carried the same forward upon the rendered rolls.

In the original opinion it was held that the real difference between the assessor and the appellant was as to the true value of the latter’s assets, and if the deductions claimed on the listings were not properly deductible the commissioners’ court, functioning as the board of equalization, had the authority to correct defendant’s listings by eliminating the deductions and thereby increase the valuation of the taxable assets. Ferguson v. Steen (Tex. Civ. App.) 293 S. W. 318, supports the view that such a correction may be made by the board of equalization.

If the true issue between the assessor and defendant was not over the proper valuation, then .the case is one of failure on the part of appellant to inventory all of its taxable assets. It is then a case of assets omitted, and the assessor should have proceeded as in the case of unrenderéd property and placed the omitted assets upon the unrendered roll in the name of the defendant.

It is perhaps advisable for us here to consider more fully the right of the taxpayer to insist that the statutory provisions governing assessments against his property be substantially observed. In Cooley on Taxation (2d) pp. 352, 353, it is said:

“Necessity for Assessment. An assessment, wben taxes are to be levied upon a valuation, is obviously indispensable. It is required as tbe first step in tbe proceedings against individual subjects of taxation, and is tbe foundation of all which follow it. Without an assessment they have no support, and are nullities. Tbe assessment is, therefore, tbe most important of all the proceedings in taxation, and the provisions to insure its accomplishing its office are commonly very full and particular.
“Mandatory Requirements. The assessment being so important, the statutory provisions respecting its preparation and contents ought to be observed with particularity. They are prescribed in order to secure equality and uniformity in the contributions which are demanded for the public service, and if officers, instead of observing them, may substitute a discretion of their own, the most important security which has been devised for the protection of the citizens in tax eases might be rendered valueless.”

In 26 R. C. L. p. 355, it is said: “All those provisions which are intended for the security of the citizens, for insuring an equality of taxation and to enable everyone to know with reasonable certainty for what real and personal estate he is taxed and for what all those who are liable with him are taxed are conditions precedent and if they are not observed he is not legally taxed.”

Section 1, art. 8, of the Constitution of this state, provides that all property “shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”

In the Vance Case ([Tex. Civ. App.] 261 S. W. 457, and [Tex. Com. App.] 277 S. W. 89), from which we quote in the main opinion, this constitutional provision is referred to, and it was held that in obedience thereto taxable values must be ascertained in the manner provided by law.

In the case at bar, if the difference between the assessor and defendant was one of valuation, then the statutory method of adjusting such difference was not observed.

On the other hand, if it is a case of property omitted by the taxpayer from his inventory, then it was unrendered property, and the statutes governing the assessment of unren-dered property were not observed.

The inventory for the year 1926 tendered by appellant’s agent, Jaloniek, was not verified by his oath, and the one for 1927 not signed by him. We attach no importance to this defect because it had nothing to do with the assessor’s rejection thereof. Jaloniek made every effort to secure acceptance thereof by the assessor, and he was evidently willing to sign and verify same. The assessor’s refusal to accept same was due solely to the deductions which Jaloniek claimed were properly deductible.

If Jaloniek had refused to sign and verify the inventories it would have authorized the assessor to treat it as a refusal to render the appellant’s property and to assess the same as unrendered property, as was done in the Moody Case, supra.

In its motion appellee presents the point that no costs should be taxed against it, and we think this is well taken. Articles 7337, 7343, 7333 and 7297, R. S.; Duclos v. Harris County (Tex. Com. App.) 298 S. W. 417; Grant v. Ellis (Tex. Com. App.) 50 S. W.(2d) 1093.

The motion for rehearing is overruled. No costs will be taxed against the appellee, but it is ordered, in behalf of the court officers, that all costs incurred by appellant in the court below and upon appeal be taxed and adjudged against it. Articles 2051-2052, R. S.


author: GRAVES, Justice. LANE, Justice..

text:
    PIERSON v. PIERSON et al.
    No. 9807.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1933.
    Rehearing Denied Feb. 16, 1933.

      Morris D. Meyer, of Houston, and Lock-hart, Hughes & Lockhar't, of Galveston, for appellant.
    D. J. Wilson, of Galveston, and W. J. Walden, Chas. W. Bell, and Rodman S. Cosby, all of Houston (Bryan, Cosby, Suhr & Bering, of Houston, of counsel), for appellees.
   GRAVES, Justice.

This appeal is from a judgment refusing the probate of the will of Andrew L. Pierson, Sr., dated December 6, 1923, as well as the codicil thereto of date May 24, 1928, entered upon a jury’s findings to 'the effect that, while these two documents were legally executed and witnessed and no subsequent nor different will was ever made by Andrew L. Pierson, Sr., both this will and its codicil were the result of undue influence exercised upon Andrew L. Pierson, Sr., by Andrew L. Pierson, Jr.

Appellant challenges such determination below upon the ground that the evidence was not even sufficient to raise an issue for the jury over whether or not this will and codicil had been the result of any such alleged undue influence, wherefore his request for a peremptory instruction in his favor on that account should have been granted, and since that was not done, for the same reason the verdict so returned should have been set aside and a new trial granted him.

In this court, sufficient support for SO' much of the verdict as found that the will and codicil in issue had been duly executed with the formalities and solemnities required by law is in effect conceded by both sides, hence the controversy here is reduced to one solely of whether or not there was enough evidence to sustain the contest thereof.

After a painstaking consideration of the statement of facts, this court 'sustains appellant’s contention that the evidence was insufficient to raise an issue for the jury over whether or not any such influence had been exercised, and that in consequence the trial court should have so withdrawn the cause from the jury and entered judgment in appellant’s favor requiring the probate of the will.

This conclusion, in the main, is based upon these considerations: When once the right in law of a testator when in sound mind and acting of his own free will and accord to dispose of his property as he chooses is recognized, there appears upon the face of this will at least nothing inherently unnatural nor unjust. Its provisions in substance were these:

After a recitation to the effect that he had made a settlement with his sons, Henry, Walter, and Randolph Pierson with reference to their interests in the estate of their mother, and directing that, if all of them had not sooner received in full the amounts thereof, they should be first so paid out of the proceeds of the sale of the real estate standing in his name at the time of his death, bequests were made out of the proceeds to arise from the sale of his own remaining 7/10 interest therein as follows:

To the Masonic Orphans’ Home at Fort Worth 67 shares of Masonic stock; to his oldest son, Andrew L. Pierson, Jr., appellant, all stock the father owned in the A. L. Pierson Manufacturing Company; to Josephine Mur-ney and John Earls, $3,000 each; to Ruth Vautrin, afterwards Mrs. J. J. Stirling, his niece, $5,000; to Lueile Pierson, $100; to his three sons, Marcus, Henry, and Randolph Pierson, the appellees, or contestants of the will, each $10; $8,000 to the First National Bank of Galveston in trust for his grandson, Marcus A. Pierson, the son of appellee Marcus; then one-half the residue of the property to his son, A. L. Pierson, Jr., in trust for the latter’s sons and his own grandsons, A. L. Pierson, 3d, and Lionel Pierson, and the other one-half of the residue to his son, Walter Pierson, with proviso that, if Walter died before the testator did, then the entire residue should go to the two grandsons last mentioned.

The codicil merely changes the will in the respect that it reduces the bequests to Josephine Murney and Ruth Vautrin to $1,001) and $2,000, respectively.

Appellant, A. L. Pierson, Jr., was made independent executor of this will without bond, nor was any bond required of him as administrator of the trust created therein for the benefit of his two minor children.

It thus appears that Mr. Pierson, iSr., had five sons, one of whom, Walter, did not participate in this litigation — he, the testimony indicated, considering that he was not entitled to anything more than the father had just provided for him in the settlements affecting his mother’s estate — the contest of the will, therefore, having been prosecuted by the three who only received $10 under its terms against the remaining one, Andrew, Jr., so named as the larger beneficiary and independent executor thereof.

While, unexplained, the cutting down of the three appellee sons to nominal bequests of $10 each might import not only inequality but possibly even injustice on the father’s part, there appears undisputedly in the evidence a probable cause for this, in that prior to the time of the execution of the first of these documents, one of these three, Randolph, had filed a suit in the courts against his father ■to require him to then pay what Randolph claimed was due him from the estate of his deceased mother; another one of them, Henry, then made a demand on the father for a like settlement for himself, with a threat to also file a suit, if it was not made; during the same time, a strained relationship, brought about .by unexplained reasons, was testified to as having existed between the third of these sons, Marcus, and his father.

Witnesses testified that these conditions at that time greatly grieved and worried the elder Pierson; that he was required to raise $8,GOO in money to dispose of this suit Randolph had filed; and that, apparently because of it, he also made similar settlements with Henry and Walter of their claimed interests in their mother’s estate, by notes or otherwise, which settlements were all three consummated just shortly before the will here involved was executed. One of these witnesses said that .the old gentleman, in referring to Randolph’s action, was crying about it, and said: “He has knocked the easy chair from under his old Daddy’s feet.”

Another incident the appellees lay much stress upon is the testimony of Mrs. J. J. Stirling (nee Ruth Yautrin) that, just prior to September 15th of 1929, the elder Pierson said to her: “Ruth, I asked Andrew for my will and he wouldn’t give it to me. He said his wife had the key to the strong box in Kerrville, I think, where she was visiting. I said Well, Uncle Pierson, that seems strange that she should have such an important key up there with her,’ and he said ‘That is whát I thought, but I wanted my will.’ ”

She added that the old gentleman had thereafter mentioned that incident again to her on several occasions saying about the same thing, and expressing regret at his inability to get the will, but never telling her why he wanted it.

This is the only mention of or suggestion about a will that could have applied to this "one from witnesses for the contestants in the entire record, and even it seems to have been denuded of any possible significance in their favor by this testimony of Mrs. Stirling’s father, Mr. P. J. Yautrin, who was old Mr. Pier-son’s closest friend:

“Q. Did Father Pierson ever discuss with you the fact that he went to Houston to get his will? A. He never said he went to Houston. He said he wanted to get the will, as he was thinking of making the City National Bank executors, as he figured that possibly there, would be a controversy, and it would relieve Andrew of some of the trouble that is before this court now. That was his expression.
“Q. Did he indicate that he did or did not get the will? A. He said that he was unable to get it, as it was in the safe deposit box in Houston, the key to which Mrs. Rosina Pier-son, the wife of Andrew, had, and she was in a hospital in Kerrville, where she met with an accident, turned over in her car, and he couldn’t get it
“Q. Did Father Pierson indicate to you that he ever made any other efforts to get the will? A. He never did. That was the last of it I never heard of it any more.”

So much upon the specific features referred to.

As concern's the case for the contestants as a whole, despite diligent search, this court finds nothing anywhere in the record that tends with any probative force to show that the appellant had anything at all to do with, or that he in any manner brought about, either the preparation or the execution of this will or of its subsequent codicil. There is not even made out a clear case of an opportunity in him of exercising an undue influence with ’reference to the making of either instrument. In this instance, unlike many of the cases cited and relied upon by the appellees, the circumstances surrounding this testator and the execution of both these challenged instruments .by him are affirmatively and undisput-edly shown; they so strongly rebut any legitimate inference that the appellant did exert such an influence at the time as to be controlling; they show that the appellant had permanently moved to Houston from Galveston some ten years before the will was executed, that he was not present then nor at the making of the codicil some six years later, and that he had nothing whatever to do with the preparation or signing of either; the testimony of the attorney who drew both papers for the senior Pierson and who had been his personal attorney for some time prior thereto, makes indisputable and entirely free from any suspicion of their being the result of any other volition than that of old Mr. Pierson himself the fact that the will was prepared in the attorney’s office in Houston from information the testator had given him; that the attorney then took it to Galveston for execution by Mr. Pierson and that the latter, fully understanding its contents and approving it a's drawn, then went before two of his old friends there, Messrs. Joseph Bonart and Sam Schornstein, and executed it; like procedure also attended the preparation and execution of the later codicil, Mr. Pierson having called upon the same attorney and advised him of his desire to make a change in the will and that it was accordingly drawn up and mailed to Mr. Pierson in Galveston, who received it there and took it before two other friends, Messrs. H. J. Strickhausen and G. H. Scheel, and likewise executed it.

While thus failing to show that appellant had anything to do with the procurement or preparation of either the will itself or the codicil, tlie appellees- yet contend that the testimony shows an almost complete domination by appellant o'f his father oyer a period of many years, including the very time of execution of both the will and the codicil, to the extent that a jury might reasonably infer therefrom that ’such control did or must have so operated upon his father in the acts of making the will and codicil as to have substituted the volition of the son for that of the father in them; but this at best seems to, amount to a claim for the exercise of undue influence at very long range; indeed, the evidence as to the surroundings of the parties during this period, as well as of the character, mentality, and disposition of the father, so strongly rebutted it as to leave it, in our opinion, nothing more than a mere surmise; it was indisputably shown that all of this time the elder Pierson was a man not only of unimpaired mental power but of very strong character and determination; that he was of firm disposition, with definite, fixed opinions of his own, to the extent that he could" not be controlled by anything except his own ideas of what was right or wrong; that these qualities of body and mind continued unchanged throughout the six years of his life following the execution of the will, and that during all the period from before the execution of the will until his death he handled all of his real estate business personally, and that during those final years he even conducted a retail-clothing business of his own in Galveston, where he had always resided, not connected with the A. L. Pierson Manufacturing Company of Houston, attending individually also to all details of his banking business, including the personal giving of notes and issuance of cheeks, thus continuing to the end of his life generally to be, as he had always uninterruptedly before been, the self-reliant, self-opinionated master of all his own affairs.

While, as already indicated, there was not a 'scintilla of evidence produced tending to indicate any domination of appellant over his father, with relation to the making of this will or codicil, nor that he ever advised or suggested anything about the making of either, or even knew of the contents or existence of them until after they were made, the contestants do adduce a mass of testimony relating to wholly remote and disassociated matters which they claim tended to show the general domination they relied 'solely upon; hut when all these are appraised, it will be found that thej' had to do, almost exclusively, with proposals to old Mr. Pierson with reference to the expenditure or investment of money, and to all such things he was reported to invariably demur, with the statement that they would have to go to Andrew, or that Andrew would not permit him to do it, or that he would have to see Andrew first.

While on the face of it this showing still leave's a great gulf fixed between it and the kind of control the law requires to overturn a legally executed will, a complete accounting for it, consistent with entirely natural and proper relationships between the two, is otherwise afforded in the evidence, since it uncontrovertedly appeared that Andrew being' the oldest son had been trained up by the father through a period of about thirty years in all the details of the major business of his long life — the Pierson Manufacturing Company — with the result that he had come to look to this son for counsel and advice as to all matters pertaining to his business and financial affairs, to the extent that he had put him in charge of that business at Houston, making him vice president and general manager thereof, with the duty of taking care of and handling practically all matters pertaining to it; since the record shows that that son had proven himself worthy of such confidence by the 'successful management of the business throughout many years, it is difficult to see how it could reasonably be thought unnatural for the father to lean upon and desire his counsel in matters of business generally.

Whatever the refinements it may have otherwise gone through, the phrase “undue influence” has acquired in our jurisprudence, as •applicable to the simple question here involved, a well defined legal meaning in these two respects: First, as to what it is; second, as to the quantum of proof required to establish it.

Under the first of these, it has thus been acceptably defined: “To be classed as undue, influence must place the testator in the attitude of saying: ‘It is not my will, but I must do it.’ He must act under such coercion, compulsion or constraint, that his own free agency is destroyed.” Ginter v. Ginter, 79 Kan. 721, 101 P. 634, 22 L. R. A. (N. S.) 1024; Re Shell’s Estate, 28 Colo. 167, 63 P. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181; Morrison v. Thoman (Tex. Civ. App.) 86 S. W. 1069; Decker v. Koenig (Tex. Civ. App.) 37 S.W.(2d) 378; Idar v. Uehlinger et al. (Tex. Civ. App.) 49 S.W.(2d) 998; Ap-plehans v. Jurgenson, 336 Ill. 427, 168 N. E. 327, 67 A. L. R. 851, 856.

Under the second, it has been quite generally held as follows: “Undue influence cannot be presumed or inferred from opportunity or interest, but must be proved to have been exercised, and exercised in relation to the will itself, and not merely to other transactions.” Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98; Morris v. Bailey (Tex. Civ. App.) 16 S.W.(2d) 311; Barry v. Graciette (Tex. Civ. App.) 71 S. W. 309; 28 R. C. L. Par. 106, page 151; 40 Cyc. 1164 ; In re Pittock’s Will, 102 Or. 159, 199 P. 633, 202 P. 216, 17 A. L. R. 218, 227; In re Swartz’s Will, 79 Okl. 191, 192 P. 203, 16 A. L. R. 450.

Tested by those rules of law, it seems plain that the showing here made was insufficient to take to the jury the issue as to the overthrow of this will.

There was no error, we think, in the admission of Mrs. Stirling’s testimony as to the financial condition of appellant. Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138.

The judgment of the trial court has therefore been reversed, and the cause has been here rendered in appellant’s favor.

Reversed and rendered.

On Motions for Rehearing.

LANE, Justice..

We reiterate that after a careful examination of the statement of facts including the will of Pierson, Sr., we have found no evidence that tends, with any probative force, to show that A. L. Pierson, Jr., in any manner unduly influenced Pierson, Sr., in the making of the will offered for probate or the codicil thereto. There was no evidence .upon which it could be reasonably found that A. L. Pierson, Jr., knew that his father contemplated making a will or that he had made one, until it was made, but to the contrary, as stated in our opinion, there was evidence tending strongly to show that he knew nothing of his father’s intention to make the will. Contestants, however, in their motions for new trial strenuously insist that we erred in the conclusions above expressed. The trend of our appellate courts is to hold that the tendency to assail last wills of the aged upon the grounds of undue influence and frivolous and inconclusive evidence, chiefly of a speculative character, has grown to such an alarming extent in -the late years that it should be checked. To such trend we add o,ur approval. It is no uncommon thing to see testamentary dispositions questioned, and it sometimes happens that they are successfully questioned though testator had been considered a man of strong convictions and purposes and there had never been a suspicion, during his lifetime nor after his death, that the testator was one who could be influenced to do that which he conceived to be wrong or inconsistent with his moral obligation's until the contents of his will became known and the expectations of collateral kindred were defeated by its provisions. These kindred frequently think they ought to have been more abundantly provided for in his will, and, because he thought differently, they conclude that some one who was more favorably considered than themselves unduly influenced the making of the will. Because what testator did does not comport with what they believed he should have done, they assume that he must have been unduly influenced to do as he did and upon such assumption they attack his will, though they neither questioned nor doubted his ability to make a will, or to transact his affairs without hindrance by any one, until they discovered that he had made a will with which they were dissatisfied. It is true, we think, that such groundless assaults should cease, and we think it is the plain duty of the courts to give them no encouragement or cognizance.

In re Bartels’ Estate (Tex. Civ. App.) 164 S. W. 859, 866, Chief Justice Pleasants, speaking for this court, said: “It is not improbable that, because of the apparent unfairness in the will in the proportion of the estate bequeathed to Mrs. Milam, the jury concluded that they were authorized to do what they conceived to be justice between the parties. However praiseworthy such motive may have been, the law does not authorize a jury to hold a will invalid merely because it does not appear to be a fair and just distribution of the estate of the testator.”

Believing the motions for rehearing are without merit, they are overruled.


author: JACKSON, Justice.

text:
    J. C. WHALEY LUMBER CO. v. CITIZENS’ NAT. BANK OF LUBBOCK.
    No. 3970.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    G. G. Hazel, of Sudan, for appellant.
    Bean & Klett, of Lubbock, for appellee.
   JACKSON, Justice.

On April 16, 1932, the J. C. Whaley Lumber Company instituted. suit in the county court of Lubbock county against I>. C. Beebe on an open account for the sum of $296.26, and on May 26th had a writ of garnishment issued and served against R. Q. Stubbs to impound $205 alleged to be due by Stubbs to D. C. Beebe for the purchase price of certain cane seed.

R. Q. Stubbs, the garnishee, filed a motion to quash the garnishment, and pleaded that, prior to the time the writ of garnishment was served upon him, he had purchased from D. 0. Beebe 41,000 pounds of cane seed, agreeing to pay therefor the sum of 50 cents per 100 pounds, or $205; that he had been informed prior to the time of the service of the writ that D. O. Beebe had assigned to the Citizens’ National Bank of Lubbock the amount he was due Beebe for the cane seed, and that Beebé had advised such bank to collect the $205 from the garnishee;. that he had retained the money for the cane seed, which he tendered into court, and asked that it be determined to whom said money should be paid, and asked for $25 as a reasonable fee for the services of his attorney.

The Citizens’ National Bank, with permission of the court, intervened and alleged that D. C. Beebe was indebted to it in the sum of $230, which amount was a balance on a promissory note executed by D. C. Beebe to it; that default had been made in the payment thereof; that it had a mortgage on the cane seed that was sold by D. O. Beebe to R. Q. Stubbs, who had notice of the mortgage lien. The bank did not seek to foreclose its mortgage, but alleged that it was agreed by D. C. Beebe, R. Q. Stubbs, and the bank that, after the seed was threshed and weighed, the proceeds thereof should be paid to said bank; that such agreement was made prior to May 26, 1932, the date that the J. C. Whaley Lumber Company secured and had served upon R. Q. Stubbs the writ of garnishment.

The cases were consolidated, and, D. C. Beebe having defaulted, all matters of fact as well as of law were submitted to the court, and judgment rendered in behalf of the .1. C. Whaley Lumber Company against D. O. Beebe for the sum of $269.26, with interest thereon, and against D. C. Beebe in favor of the Citizens’ National Bank for the sum of $232.73, with interest thereon. The court found that the proceeds of the seed wore $205, and that such proceeds had been assigned to the Citizens’ National Bank before the service of the writ of garnishment, and decreed that the bank recover said sum from the garnishee, from which judgment the J. C. Whaley Lumber Company prosecutes this appeal, assigning numerous errors in the action of the trial court.

Without considering the various assignments urged, we deem it sufficient for a disposition of this appeal to say that, in our view, the evidence is sufficient to support the finding of the court that the proceeds of the cane seed sold by D. C. Beebe to R. Q. Stubbs had been assigned to the appellee bank before the issuance and service of the writ of garnishment.

“An equitable assignment may be either in writing or by parol, and since equity disregards mere form, no particular words or kind of instrument is necessary to effect the assignment; any language, however informal, that shows an intention to transfer the chose, so that it will be the property of the transferee, will act as an equitable assignment.” 5 Tex. Jur. p. 23.

See, also, Brown et al. v. Fore et al. (Tex. Com. App.) 12 S.W.(2d) 114, 115, 63 A. L. R. 435; Craig et al. v. Dunlap (Tex. Civ. App.) 267 S. W. 1007.

The general demurrer and so-called special exceptions which were, in effect, but general demurrers, were not passed on by the trial court, and were therefore waived. Southern Casualty Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533. The assignments attacking the sufficiency of the pleadings are overruled.

The judgment does not allow recovery of double damages, as contended by appellant, as it provides that whatever amount may be collected from R. Q. Stubbs by the Citizens’ National Bank shall be credited upon its judgment against D. C. Beebe. Labor Bank' 6 Trust Co. v. Adams et al. (Tex. Civ. App.) 23 S.W.(2d) 814.

The action of the court in quashing the writ of garnishment was immaterial. The bank did not seek a foreclosure of its mortgage, and the judgment of the court is not based upon the mortgage lien.

The judgment is affirmed.


author: HICKMAN, Chief Justice.

text:
    BRITISH GENERAL INS. CO., LIMITED, OF LONDON, ENGLAND, v. STAMPS et al.
    No. 1063.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 17, 1933.
    Rehearing Denied March 10, 1933.

      T. M. West and Nat L. Hardy, both of San Antonio, for appellant.
    J. D. Barker, of Cisco, for appellees.
   HICKMAN, Chief Justice.

This suit was filed by appellee Clara Rose Stamps, joined pro forma by her husband, J. T. Stamps, for the sum of $925, being one-half of the face of a certain policy of fire insurance issued by appellant to Harry P. Schaef-fer, the former husband of Mrs. Stamps. No jury was demanded, and the court, after hearing all of the testimony, rendered judgment for the full amount sued for, with interest thereon from sixty days after proof of loss was filed. No request w<as made for separate findings of fact and conclusions of law, and none are contained in the transcript.

The material facts are undisputed, and' are as follows: The policy insured a certain house to the amount of $1,009 and certain personal property contained in the house to the amount of $250; the total face value of the policy being $1,250. It was issued to Harry P. Schaeffer. The land upon which the house was situated was, when the policy was issued, the community property of Harry P. Schaeffer and his wife, now Mrs. Clara Rose Stamps, and the premium was paid out of community funds. On November 26, 1930, Schaeffer filed a suit for divorce, which was granted on December 26, 1930. The policy of insurance was issued during the pendency of the divorce proceedings, and bore date of December 3, 1930. On May 14, 1931, while the l>olicy was still in force, both the building and the personal property situated therein were destroyed by fire. Immediately following the destruction of the property, appellee gave appellant written notice that one-half of the funds to be paid under the terms of the pol-. icy belonged to her, and requested that, when settlement was made, the check be made payable to Harry P. Schaeffer and Clara Rose Stamps jointly. Thereafter appellant paid Schaeffer $625, being one-half of the total liability under the policy, and being the total amount claimed by him as his interest thereunder.

The only provision of the decree of divorce concerning the property rights of the parties was as follows: “And it further appearing to the court that plaintiff and defendant have partitioned all of their common property, excepting the property hereinafter described, it is ordered, adjudged and decreed that henceforth the plaintiff, Harry P. Schaeffer, and the defendant, Clara Rosa Schaeffer, shall have, hold and own in sev-eralty in the proportion of an undivided one-half each, all that timet or parcel of land. * * * [Here follows a description of the tract of land upon which the building covered by the insurance policy was situated.]”

Appellant presents that the entire policy was void because the interest of Harry P. Schaeffer in the property covered thereby was not correctly stated therein; that said Seh'aeffer was not the sole and unconditional owner thereof, his then wife, now Clara Rose Stamps, being the owner of an undivided one-half interest therein. The policy contains this provision: “This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if the interest of the insured in the property be other than unconditional or sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple. * * * ”

The question presented under this assignment is: May a husband procure a policy of fire insurance on community property in his own name without violating the above-quoted provision? We hold that he may. East Tex. Fire Ins. Co. v. Crawford (Tex. Sup.) 16 S. W. 1068; Warren v. Springfield Fire & Marine Ins. Co., 13 Tex. Civ. App. 466, 35 S. W. 810; Sun Ins. Office v. Beneke (Tex. Civ. App.) 53 S. W. 98; Hoyle v. Rep. Ins. Co. (Tex. Com. App.) 14 S.W.(2d) 816.

Another provision of forfeiture contained in the policy was in this language: “Or if any change, other than by the death' of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

It is the contention of appellant that the above clause of the policy was violated ini this: When the policy was issued, the property was the community property of Schaef-fer and wife. Prior to its destruction, a decree of divorce was rendered, placing the title in the real estate in Schaeffer and his divorced wife as tenants in common, the effect of which was to work a change in the title of the insured. We recognize that a slight change was wrought by the decree of divorce, but do not regard that change to be of such a material and substantial nature as to work a forfeiture of the policy. The property belonged to the same owners at the time of its destruction as of the date of the issuance of the policy, and the „ proportionate interests of each were the same. The changing of those interests from community interests tot undivided interests in severalty cannot be held so to increase the hazard as to avoid the, policy. We can cite no Texas authorities on this exact point, but the general principles governing the disposition of the question are illustrated by the following decisions: Insurance Co. of North America v. O’Bannon, 109 Tex. 281, 206 S. W. 814,1 A. L. R. 1407; Texas Banking & Ins. Co. v. Cohen, 47 Tex. 406, 26 Am. Rep. 298; Delaware Ins.. Co. of Philadelphia v. Hill (Tex. Civ. App.) 127 S. W. 283; Merchants’ & Bankers’ Fire Underwriters v. Brooks (Tex. Civ. App.) 188 S. W. 243; Philadelphia Underwriters’ Agency v. Moore (Tex. Com. App.) 229 S. W. 490; St. Paul Fire & Marine Ins. Co. v. Culwell (Tex. Civ. App.) 45 S.W.(2d) 347.

As a further ground for overruling appellant’s contentions above discussed, we sustain one of the pleas of waiver interposed by appellee. The substance of this plea was that appellant had recognized its liability under the policy by accepting proof of loss and paying Harry P. Schaeffer one-half of the face thereof upon a claim of one-half interest in the proceeds. This settlement was not a compromise, but was a settlement in full for the entire amount owing to him. If the policy was void because of a change in the title of the property insured thereby, it was void as to Harry P. Schaeffer, and by its act of paying Schaeffer in full appellant waived the forfeiture clause.

Appellee pleaded waiver based upon the retention by appellant of the premium and its failure to cancel the policy after it obtained full knowledge of the divorce decree, but the evidence does not disclose knowledge on the part of appellant of the divorce proceedings, and this plea of waiver was not therefore established.

It is recognized that appellant’s contention, that the contract of insurance was personal and did not run with the land, is valid, but we do not agree with its conclusion that appellee was not entitled to maintain a suit on the policy. The, subject of the insurance being community property, the contract of insurance was made for her benefit the same as for the benefit of her husband.

The conclusions above announced apply to the personal property the same as to the building. The decree .of divorce did recite that the parties had partitioned all their common property, except the tract of land upon which the insured building was situated, bub there was no further evidence thereof than this recital, which did not amount to an adjudication. The testimony of Schaeffer discloses that this personal property was still in the same building when destroyed as when insured, and that it was owned by him and his former wife, Mrs. Stamps. Under these facts the appellant could not pay one-half of the face of the policy without waiving the conditions of forfeiture in the policy. It could hot affirm it as to him and forfeit it as to her.

On the question of the value of the personal property destroyed, the fact that the insurance company paid Schaeffer $125 for his interest, the same being one-half of the face value of the policy, upon a proof of loss furnished by him, showing the value thereof to be in excess of the amount of insurance thereon, is sufficient evidence, in the absence of any evidence to the contrary, to support the finding of a value of $125 for Mrs. Stamps’ interest. St. Paul Fire & Marine Ins. Co. v. Culwell (Tex. Civ. App.) 45 S.W.(2d) 347.

The questions presented of alleged errors of the trial court in the admission of testimony, in view of the fact that the trial was before the court, need not be discussed separately. No law questions of importance are presented. To sustain the assignments presenting these questions would not result in the reversal of the judgment. A different result might have followed had the trial been before a jury. Ferguson v. Ferguson (Tex. Civ. App.) 11 S.W.(2d) 214.

The judgment of the trial court is affirmed.