author: GREENHILL, Chief Justice. SAM D. JOHNSON, Justice

text:
    GULF COAST STATE BANK, Petitioner, v. Elmo NELMS et al., Respondents.
    No. B-5037.
    Supreme Court of Texas.
    July 16, 1975.

      McCall & McCall, Leroy McCall, Ham-shire, Shannon, Gracey, Ratcliff & Miller, Charles N. Curry, Fort Worth, for petitioner.
    Dearman, Myers & Brown, W. Dan Myers, Claude B. Masters, Houston, for respondents.
   GREENHILL, Chief Justice.

The bank has a perfected security interest in an automobile, and a mechanic later performs substantial repairs on the car. Neither the bank nor the mechanic has been paid. The sole question presented is whether an artisan, claiming a lien on an automobile in his possession under Articles 5503 and 5506, is entitled to priority over a prior secured party who has perfected his security interest on the vehicle’s certificate of title. We hold that under the Texas Business and Commerce Code the mechanic’s lien is entitled to priority.

On April 29, 1971, Elmo Nelms purchased a 1971 Chevrolet from the Beaumont Motor Company. As part of the purchase price, Nelms signed an installment contract and security agreement, which was assigned to our petitioner, Gulf Coast State Bank. It had the security interest properly noted on the car’s certificate of title. The car was later damaged and Nelms took it to a body shop owned by M. R. Buchanan who agreed to make repairs for $1,160.63. Nelms failed to pay the debt for the repairs or to reclaim his ear when the repairs were completed. The car payments were in arrears; so Gulf Coast State Bank sought possession of the car from Buchanan. Upon Buchanan’s refusal to release the car, Gulf Coast State Bank brought suit against Nelms and Buchanan for judgment on the installment contract and foreclosure of the security interest. Buchanan asserted a cross-action against Nelms and the bank seeking to recover the value of the repairs and storage charges. Both parties sought a declaration that their respective liens were superior. Nelms has evidenced no interest in the matter.

After a trial before the court, judgment was entered for both the bank and Buchanan against Nelms for the respective amounts owed. The judgment also declared the bank’s lien to be superior to Buchanan’s and ordered the car sold and the proceeds of the sale applied to the amounts due the bank and Buchanan, in the order of their determined priority. The Court of Civil Appeals reversed. It held that Buchanan’s lien was superior to the security interest of Gulf Coast State Bank and that the trial court erred in determining that the bank’s lien was entitled to priority. 516 S.W.2d 421. We affirm the judgment of the Court of Civil Appeals.

Prior to the adoption of the Certificate of Title Act in 1939, the holder of a recorded chattel mortgage was entitled to priority over a mechanic’s lien. Commercial Credit Co. v. Brown, 284 S.W. 911 (Tex.Com.App.1926). The Certificate of Title Act, Acts 1939, 46th Leg., p. 602, ch. 4, provided in part:

Sec. 43. All liens on motor vehicles shall take priority according to the order of time the same are recorded on the receipt or certificate of title of all such recordings to be made by the Department.
******
Sec. 46. Only liens noted on a receipt or certificate of title shall be valid as against creditors of the mortgagor in so far as concerns the motor vehicle.

After passage of this Act, a lien noted on the certificate of title was held to be superi- or to a mechanic’s lien by virtue of the above Sections. Motor Truck Sales Co. v. Hauck, 388 S.W.2d 214 (Tex.Civ.App.1965, writ ref’d n. r. e.); Perkins v. Martel, 277 S.W.2d 741 (Tex.Civ.App.1955, no writ). However, these sections were repealed by Acts 1971, 62nd Leg., p. 896, ch. 123, effective May 10, 1971.

With its effective date in 1966, the Texas Business and Commerce Code preserved the certificate of title system for perfecting security interests in motor vehicles except for vehicles held as inventory. Tex.Bus. & Comm. Code § 9.302(c) & (d), V.T.C.A.; Ruud, Amendment of the Texas Certificate of Title Act to conform it to the Uniform Commercial Code, 33 Tex.B.J. 968 (1970). The subject of priority of mechanic’s and artisan’s liens is specifically covered by the Texas Business and Commerce Code in § 9.310, which provides:

When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

The intent of § 9.310 is to give a lien arising from work enhancing or preserving the value of property priority over a prior perfected security interest, except in jurisdictions where the mechanic’s lien statutes expressly declare the lien to be subordinate. Tex.Bus. & Comm. Code Ann. § 9.310, comments 1 & 2; Manufacturers Acceptance Corporation v. Gibson, 220 Tenn. 654, 422 S.W.2d 435 (1967); e. g., 2 G. Gilmore, Security Interests in Personal Property § 33.5 (1965).

This section establishes priority for the artisan “. . . unless the lien is statutory and the statute expressly provides otherwise.” From this alone it would seem that one need go only to the lien statute and determine if it provides that the artisan shall not have priority. The comments to § 9.310 support this view. Comment 2 provides that “. . . [s]ome of the statutes creating such liens expressly make the lien subordinate . . . .” However, where a state has adopted a certificate of title act, some courts have decided it to be necessary to go beyond the lien statutes. They have brought in the title laws. G. M. C. Superior Trucks, Inc. v. Irving Bank and Trust, 463 S.W.2d 274 (Tex.Civ.App.1971, no writ); Commonwealth Loan Co. v. Berry, 2 Ohio St.2d 169, 31 Ohio Op.2d 321, 207 N.E.2d 545 (1965). The Court of Civil Appeals, in the case at bar, has based its decision, in part, on the repeal of Sections 43-46 of the Certificate of Title Act, holding that the Act no longer provides that the perfected security interest be given priority. The practice of referring to a certificate of title act to determine priorities has drawn criticism. Murphey, Cars, Creditors, and The Code: The Diverse Interpretations of Section 9-310, 1970 Wash.U.L.Q. 135, 139; Note, Security Interests in Motor Vehicles under the UCC: A New Chassis for Certificate of Title Legislation, 70 Yale L.J. 995, 1013 (1961). The Editor’s Note at 2 UCC Reporter 750 criticized the Commonwealth Loan Co. v. Berry, supra, decision for referring to the Certificate of Title Act by stating:

The effect of the court’s decision is to write an additional exception into § 9.310 . “or unless some other statute expressly provides otherwise.” It does this by holding that since [the Certificate of Title Act] makes a security agreement conveying a security interest in an automobile valid against other lienholders if proper notation has been made on the certificate of title, it prevails over the contrary but more general language of § 9.310.

We agree with this rationale, and we hold that § 9.310 requires that we refer to Articles 5503 and 5506 which are the statutes creating the mechanic’s and artisan’s lien, to determine whether they “expressly provide otherwise.” See generally Ruud, The Texas Legislative History of the Uniform Commercial Code, 44 Texas L.Rev. 597, 621 (1966); Note, The Automobile Mechanic and The UCC, 21 Baylor L.Rev. 512 (1969).

Article 5506 provides:

Nothing in this title shall be construed or considered as in any manner impairing or affecting the right of parties to create liens by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law or in equity, or by any statute of this State, or any other lien not treated of under this title.

There is no question as to the power of the Legislature to give a statutory lien priority over an existing lien where its object is to secure a charge necessary for the preservation of property. Texas Bank & Trust v. Smith, 108 Tex. 265, 192 S.W. 533 (1917).

Although Article 5506 has been interpreted as preserving “the general rule of sanctity of contract” that subsequently acquired liens are inferior to prior existing liens (Commercial Credit Co. v. Brown, supra), to hold that the phrase, “nor shall it in any manner affect or impair other liens,” expressly provides that artisan’s and mechanic’s liens are inferior, would defeat the clear intent of § 9.310. The comments to this section provide, in part:

If the statute creating the lien is silent, even though it has been construed by decision to make the lien subordinate to the security interest, this Section provides a rule of interpretation that the lien should take priority over the security interest. Tex.Bus. & Comm. Code Ann. § 9.310, comment 2.

In First National Bank at Dallas v. Whirlpool Corporation, 517 S.W.2d 262 (Tex.1975), this Court was met with the contention that the portion of Article 5459, “provided, any lien ... on the land or improvement at the time of the inception of the lien . . . shall not be affected thereby,” gave a prior recorded deed of trust priority over a mechanic’s and materi-alman’s lien. In disagreeing with this contention, we wrote:

Petitioners’ argument is that Whirlpool’s preference lien would adversely “affect” the bank’s . prior lien. We cannot agree with petitioners’ contention.
******
The effect of the bank’s interpretation . would attribute to the legislature an intent to nullify the preference which it had just given in clear and unambiguous terms to mechanic’s and mate-rialman’s liens.

The rationale of Whirlpool is equally applicable to the case at bar, and we hold that Articles 5503 & 5506 do not “expressly provide” that an artisan’s or mechanic’s lien is subordinate to a prior perfected security interest. Therefore, by the express terms of § 9.310, Buchanan’s possessory mechanic’s lien is entitled to priority over Gulf Coast State Bank’s security interest.

The Court of Civil Appeals correctly reversed the judgment of the trial court and remanded the cause to that court. The judgment of the Court of Civil Appeals is affirmed.

Dissenting opinion by SAM D. JOHNSON, J.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted.

The sole question presented is whether an artisan, claiming a lien on an automobile in his possession under Texas Revised Civil Statutes, Articles 5503 and 5506, is entitled to priority over a prior secured party who has perfected his security interest on the vehicle’s certificate of title. This writer would answer such question in the negative.

      . Statutory references herein are to Vernon’s Texas Civil Statutes and Codes Annotated unless otherwise indicated.

      . This Act was formerly Tex. Penal Code art. 1436-1, and may now be found as Tex. Rev.Civ.Stat. art. 6687-1 (Pamphlet Supp. 1975).

      . Although the clause “unless the lien is statutory” could be read to permit only Article 5503 to expressly subordinate the mechanic’s lien, we do not think the UCC should be interpreted so narrowly and we interpret “statute” to include Article 5506. Note, Nonconsensual Liens Under Article 9, 76 Yale L.J. 1649, 1663 (1967). See Gables Lincoln-Mercury, Inc. v. First Bank & Trust Co., 219 So.2d 90 (Fla.1969); Westiake Finance Co. v. Spearmon, 64 Ill.App.2d 342, 213 N.E.2d 80 (1965).

      . See Hubbell v. Texas Southern Ry. Co. et al., 59 Tex.Civ.App. 185, 126 S.W. 313 (1910, writ refd) where railroad laborer’s liens under Article 5480 [then Tex.Rev.Civ. Stat. art. 3312 (1895)] were given preference over a prior recorded vendor’s lien without mention of Article 5506 [then Tex.Rev.Civ. Stat. art. 3326 (1895)].


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TEXAS INDUSTRIES, INC., Petitioner, v. Henry SANCHEZ, Respondent.
    No. B-5293.
    Supreme Court of Texas.
    July 16, 1975.

      Bagby, McGahey, Ross & DeVore, Phillip C. McGahey and Stewart DeVore, Jr., Arlington, for petitioner.
    Bean, Francis, Ford, Francis & Wills, Judson Francis, Jr., Dallas, Joe W. Walsh & Associates, Lee Arnett, Brownsville, for respondent.
   PER CURIAM.

This is an appeal from a Bill of Review judgment setting aside a default judgment against the defendant and rendering a judgment that plaintiff take nothing. The court of civil appeals affirmed. 521 S.W.2d 133. In denying the application for writ of error, no reversible error, we specifically approve the holding of the court of civil appeals that proof of defendant not having been served with citation obviates the necessity of pleading and proving the second Hagedorn requirement: that the defendant was “prevented from making [his meritorious defense] by fraud, accident, or wrongful act of the opposite party . . . .” See Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 243-244 (Tex.1974) and Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964).

      . Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).


author: BISSETT, Justice.

text:
    In the Matter of R. A. B., a minor.
    No. 988.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 17, 1975.
    See also Tex.Civ.App., 525 S.W.2d 892.

      Phil Harris, Weslaco, for appellant.
    Gordon Young, Edinburg, for appellee.
   OPINION

BISSETT, Justice.

R. A. B., a male juvenile who will be 17 years of age in August, 1975, hereinafter called “applicant”, has applied to this Court for a personal bond, pending appeal from an order signed on March 27, 1975, which committed him to the care, custody and control of the Texas Youth Council. Notice of appeal from that order to this Court was duly given, and motion was made in the juvenile court that the court “set bail for him to remain free until his appeal is heard”. The motion was denied on March 31, 1975. Applicant filed an application for bond in this Court on April 3, 1975, and a hearing was had thereon on April 10, 1975.

A statement of facts had not been filed at the time of the hearing. According to the transcript, which had been filed in this Court prior to the hearing, applicant, by order of the juvenile court rendered on July 30, 1974, was found to have engaged in delinquent conduct in that he: 1) committed two offenses of burglary in November, 1973; 2) committed theft on each of those occasions; and 3) was in possession of more than two ounces but less than four ounces of usable marijuana on March 24,1974. He was put on probation for a period of one year, contingent upon his proper and lawful comportment, and subject to certain terms and conditions set out in the order.

The State, on December 9, 1974, filed a motion in the juvenile court denominated “Motion to Modify Disposition”. It was alleged therein that on or about November 17, 1974, applicant “violated a penal law of the State of Texas punishable by imprisonment, namely, Section 4.05 of the Texas Controlled Substance Act, in that he did then and there knowingly possess a usable quantity of marijuana of more than four ounces”. The juvenile court was asked to modify the disposition theretofore made of applicant, and to commit him “to the care and custody of the Texas Youth Council”.

The court, following a hearing on the State’s motion, found that applicant did, on or about November 17,1974, violate a penal law of the State of Texas, as alleged. Probation which had been granted on July 30, 1974 was revoked, and applicant was committed to the care, custody and control of the Texas Youth Council, where he is presently detained. That order, signed on March 27, 1974, is now on appeal to this Court.

Applicant, at the hearing in this Court on his application, contended that under Article I, § 11 of our State Constitution, Vernon’s Ann.St., he has a constitutionally guaranteed right to remain free on bond pending disposition of his appeal, because: 1) he was not accused during the period of his probation of any crime of violence; 2) a juvenile, who is no menace to society or to himself, should be allowed to remain at liberty on bond, pending an appeal. We disagree.

The Tex.Family Code Ann. Art. 56.01(g), V.T.C.A. (1974) provides:

“(g) An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond.”

With the exception of the substitution of a “personal” bond for a “recognizance” bond, the above quoted statute is, in substance, identical with the provisions contained in the former statute on the subject, Article 2338-1, Sec. 21, V.A.C.S.

The current statute vests in the juvenile court, and cumulatively in an appellate court, the discretion of allowing a juvenile to be released on bond pending an appeal, provided the juvenile court, or the appellate court, as the case may be, deems it wise to permit the juvenile to remain free of detention until final action is had on the appeal. Espinosa v. Price, 144 Tex. 121,188 S.W.2d 576 (1945).

Where a juvenile has appealed from the order which committed him (or her) to the Texas Youth Council, a Court of Civil Appeals, upon the filing therein of an application for personal bond, acquires original jurisdiction to provide for such bond, pending disposition of the appeal of the order of commitment, even though the applicant did not apply first to the juvenile court. The appellate court’s jurisdiction to grant bond exists independently of the denial of bond by the juvenile court. An appellate court is not limited to a review of discretion exercised by the juvenile court, but its discretion is cumulative of that of the juvenile court.

The burden was on the applicant to show this Court why he should be released on bond. He did not meet that burden. It is our opinion, based on the contents of the application, the transcript, and the statements made by counsel during oral argument, that bond should be denied. It is undisputed that applicant, less than four months after he was put on probation, allegedly committed a third degree felony. The transcript shows that applicant allegedly was in possession of 18 ounces of marijuana when he was apprehended on November 14, 1974. The juvenile court, after a hearing on the State’s motion, found that applicant did commit a third degree felony during the term of his probationary period. The question of whether the evidence upon which applicant’s probation was revoked was legally admissible is not before this Court at this time, and we express no opinion thereon. There has been no showing that anyone is now in a position to control applicant during the pendency of his appeal. It is evident that his mother and father could not do so.

The reasons set out in the application to the effect that applicant is entitled to bond simply because he is not charged with the commission of a crime of violence and is not a menace to society or to himself are not, in themselves, sufficient to justify this Court in providing for the requested bond.

The application is denied.


author: OSBORN, Justice. PRESLAR, Chief Justice STEPHEN F. PRESLAR, Chief Justice. WILLIAM E. WARD, Associate Justice.

text:
    Mary Beth Smith MORRIS et vir, et al., Appellants, v. TEXAS ELKS CRIPPLED CHILDREN’S HOSPITAL, INC., Appellee.
    No. 6415.
    Court of Civil Appeals of Texas, El Paso.
    April 30, 1975.
    Rehearing Granted, original opinion and dissent withdrawn and original dissenting opinion made majority opinion, June 4, 1975.
    Second Rehearing Motion Denied June 25, 1975.

      Brite, Drought, Bobbitt & Halter, Robert Lee Bobbitt, Jr., and Ralph W. Brite, San Antonio, for appellants.
    Carter & Ellis, Joel William Ellis, Harlin-gen, Hart Johnson, Fort Stockton, for ap-pellee.
   OPINION

OSBORN, Justice.

This case arises from a suit in trespass to try title to eight sections of land in Terrell County. The Appellee claimed a record title and also pled the three, five and ten-year statutes of limitation. ' After a non-jury trial, the Court entered judgment for Appellee. We reverse and remand to the trial court with directions to enter judgment for the Appellants for title to the eight sections of land involved in this suit and in the interest of justice remand to the trial court for a proper determination of certain claims of the Appellee as subsequently set forth in this opinion.

The basic dispute between the parties arises from the effect and meaning to be given to a joint will executed by Minnie Gay Denny and her husband, W. Denny, on March 17, 1941. The first numbered paragraph of that will provides:

“It is our will and desire that the Survivor of us, W. Denny or Minnie Gay Denny as the case may be shall with the rights and authority below given have and claim in fee simple all the estate of every description real, personal or mixed which either or both of us may own to be occupied, used, enjoyed, conveyed and expended as such Survivor may desire and in the event that we should die simultaneously by accident or otherwise, or upon the death of the Survivor, should there be any estate of our joint estate remaining it is our joint will and desire in event of our joint death, or any estate remaining in the survivor at such Survivor’s death, that such estate shall pass to and vest in Mrs. Dorothy Ogle Smith who shall in event of our simultaneous or instant joint death be and is hereby named Executrix and as such and also as Trustee to receive any and all estate, real and personal that may be unexpended or undivided upon our deaths or the death of the Survivor in Trust, however, for the maintenance, rearing and education of our Nieces and Nephews named as follows:
1. Mary Beth Roberts
2. James Roberts
3. Thos. A. Roberts
4. Claudelle Roberts
and direct that the said Dorothy Ogle Smith as such Trustee shall manage the real or personal properties that may come to her under the provisions of this Trust and use the rents and revenues arising from the same for the purposes herein-above stated, and when the last of the children above named shall have attained 21 years of age the corpus of our estate, if any, then remaining shall pass to and vest in in said children share and share alike.”

The second paragraph directs the surviv- or to pay the just and lawful debts of the first to die. The third paragraph appoints the survivor as Executor or Executrix without bond and also provides for an independent administration.

Minnie Gay Denny died on September 24, 1950, and said will was filed for probate in Yal Verde County where she resided on October 11, 1950, and was subsequently admitted to probate with W. Denny qualified, as Executor. On February 9,1961, W. Denny executed a new will leaving his estate to his nephew, except for his ranch in Terrell County, which includes the land here in dispute, which he left to Appellee as an endowment. This 1961 will was admitted to probate in Val Verde County where Mr. Denny resided and a copy was filed of record in Terrell County and the Executor in 1962 and 1963 executed deeds conveying the eight sections to Appellee. The beneficiaries named in the 1941 will, who are Appellants, took the name of Smith after the death of their father and the remarriage of their mother. All of the Appellants testified that they never knew about the 1941 joint will until about a year before this suit was filed in 1973. Neither the 1941 will nor the Minnie Gay Denny probate proceedings was recorded in Terrell County where the land is located. After the Appellee paid the balance due to the State on the original purchase price of six of these sections, patents were issued in the name of Mrs. Minnie Gay Denny in July, 1971.

The basic dispute between the parties concerns whether the joint will is also a mutual or contractual will. “A joint will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or severally by them. A mutual will is one executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties.” Vaughn, “The Joint and Mutual Will,” 16 Baylor L.Rev. 167 (1964). If in this case the wills are mutual, and the parties contracted as to how their property was to pass upon their deaths, W. Denny as the survivor could not avoid his contractual obligation by changing the provisions of the joint will in a new will executed after receiving the benefits under the joint will he and his wife executed in 1941.

The problem usually lies in determining whether a joint will is in fact mutual. This may clearly be determined where the parties expressly so provide in the will itself. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948); McFarland v. Campbell, 213 F.2d 855 (5th Cir. 1954). It may also be clearly determined where the extraneous proof establishes an intent or lack of intent to make a contract. Magids v. American Title Insurance Company, 473 S.W.2d 460 (Tex.1971); Atkinson v. Schmidt, 482 S.W.2d 687 (Tex.Civ.App. — Austin 1972, no writ); Nesbett v. Nesbett, 422 S.W.2d 746 (Tex.Civ.App.- — Dallas 1967), writ dism’d, 428 S.W.2d 663 (Tex.1968). The most difficult determination, as in this case, is where there is no extraneous proof and there are no express recitations in the will that the parties did or did not have a contractual understanding.

In making that determination, the following rules must be applied:

1. The burden of establishing such a contract is upon the party asserting its existence.
2. No presumptions or inferences will be indulged in favor of a contract.
3. Putting the will in joint form with reciprocal provisions does not alone establish a contract.
4. Use of such words as “we,” “us,” and “ours” alone does not establish a contract.
5. Execution of the will simultaneously before the same witnesses does not alone establish a contract.

Nevertheless, the will may, by its terms or in its recitals, conclusively prove that it is based upon or was executed in furtherance of an agreement. This is particularly true where the joint will speaks in all of its paragraphs as the joint act of the testators and where it treats the property of the testators as one, with joint gifts being made to the devisees. Nye v. Bradford, 144 Tex. 618,193 S.W.2d 165 (1946). In that case the testators in a joint will provided that “we do hereby will, bequeath, and devise to the survivor of us” all of the property of which either of the testators shall be seized and possessed, “to be owned and held by said survivor during his or her lifetime, with remainder over to our beloved children, to-wit: Mrs. Florrie May Bradford Nye and Robert Roy Bradford, as is hereinafter more fully set out.” The will then proceeded to describe certain particular properties which were to pass to the daughter and to the son. In that case, the Court concluded that such a will could not have been made without an agreement between the testators that it should be so made; thus the joint will was held to also be mutual.

Since the decision in the Nye case, the Supreme Court has had occasion to consider several other cases where the issue turned on the question of whether a joint will was mutual and contractual where no extrinsic evidence influenced the Court’s conclusion.

In Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), the Court construed the joint will of T. M. and Maggie Harrell executed in 1936. In that will the parties provided in the second paragraph that “We give, bequeath and devise to the survivor of us, T. M. Harrell or Maggie Harrell, as the case may be, all our property, real, personal and mixed for the sole use and benefit of the survivor of us.” In subsequent provisions specific bequests were made to various parties. By the sixth paragraph they provided: “We give, bequeath and devise to Mrs. Ara M. Hickman all the remainder of our lands in Nueces County, Texas, * After the death of Maggie Harrell her will was admitted to probate. Subsequently T. M. Harrell married Mrs. Vira A. Harrell and deeded to her the approximately 400 acres of land in Nueces County. This case raised the issue whether the 1936 joint will was also a mutual will under the terms of which the bequest of land to Mrs. Hickman could not be defeated by a deed of the same land to Mr. Harrell’s second wife. In construing the will, the Court held that by the second paragraph of the will Maggie Harrell bequeathed and devised to her husband the absolute fee simple title to all of her property. That estate was limited, however, in the fourth paragraph by language which had the effect of converting it into a conditional fee or, as is sometimes called, a defeasible fee, the condition of defeasance being that in the event T. M. Harrell should die seized and possessed of any of the property, then such property should pass to and vest in the various institutions and individuals named in the will. The Court concluded that the survivor in such a case may dispose of the property as he sees fit during his lifetime, but that the survivor cannot make a disposition thereof by will contrary to that made in the joint will. Thus, the deed was upheld even though the Court concluded that the will was contractual since it set forth a comprehensive plan for the disposition of the entire estate of the testators.

In Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954), the Court construed a 1928 joint will in which the husband and wife provided that it was their will and desire that the survivor should have all the estate “which either or both of us may own at our death, to be used, enjoyed, occupied and conveyed by such survivor for and during his or her life time, as the case may be, and that upon the death of such survivor any of such estate then remaining shall be divided among the persons following and in the following manner, * * Then followed eight separate paragraphs bequesting a half section of - land for life to each of the eight children of the testators with remainder to any surviving grandchildren. The Court concluded that the will as a whole, set forth a comprehensive plan for disposing of the whole estate of either or both parties and that the will was contractual.

A similar result was reached in Dougherty v. Humphrey, 424 S.W.2d 617 (Tex.1968). In that case the will provided:

“ ‘It is our will and desire that the survivor of us, J. W. Dougherty or Callie Dougherty, as the case may be, shall, with the rights and authority below given, have all the estate of every description, real, personal, or mixed, which either or both of us may own, to be used, occupied, enjoyed, conveyed and expended by and during the life of such surviv- or, as such survivor shall desire, and that upon the death of such survivor any of such estate then remaining shall be divided equally among the persons following:’ ” (Thereafter follows the names of the testators’ six children).

The Court pointed out that under the first paragraph of the will J. W. Dougherty was empowered to use the property in any way he chose while he lived. He Was given the power to manage the property as he saw fit and could have sold it under the provisions of the will, but he was still bound to leave the property remaining at his death to the six named children. In concluding that the will was contractual, the Court said:

“* * * If the 1939 will is to be found as being contractual in nature, such finding must be drawn from the provisions of the will itself, as the will is the only evidence of the intent of J. W. and Callie Dougherty. Our holding on this point is controlled by Murphy v. Sla-ton, supra. In Murphy v. Slaton, this Court stated that a will viewed as a whole can be sufficient evidence to prove that the will was executed pursuant to an agreement. In the case before us now, as in Murphy v. Slaton, the will as a whole sets forth a comprehensive plan for disposing of the entire estate of the testator and testatrix. The will not only provides for the disposition of the property upon the death of the first to die, it provides for the disposition of the property remaining at the death of the survivor. It is clear from reading the will as a whole that it was executed by the parties to carry out a planned disposition of all of the property then owned by both parties. J. W. Dougherty caused the 1939 will to be probated and accepted benefits under it. He was bound by the provisions of the 1939 will as to any property covered by the will and remaining at his death.”

Following the rules set forth in these and other opinions, the Courts of Civil Appeals have on numerous instances concluded that wills similar to the one in this case show on their face without any extrinsic evidence that such joint wills are mutual and contractual. Leopold v. Sochat, 303 S.W.2d 840 (Tex.Civ.App. — Fort Worth 1957, writ ref’d n. r. e.); Odell v. Odell, 306 S.W.2d 914 (Tex.Civ.App. — Fort Worth 1957, writ ref’d n. r. e.); Holmes v. Holmes, 447 S.W.2d 423 (Tex.Civ.App. — Waco 1969, no writ); Riedel v. Kerlick, 474 S.W.2d 508 (Tex.Civ.App.— Corpus Christi 1971, writ ref’d n. r. e.).

The Appellee relies primarily upon Nesbett v. Nesbett, supra, and Crain v. Mitchell, 479 S.W.2d 956 (Tex.Civ.App.— Fort Worth 1972, writ dism’d). First, in the Nesbett case there .was extrinsic evidence from the attorney who had prepared the will, and he testified that the parties wanted a joint will and that they wanted it where they could leave it to whoever they wanted to after one had died. In affirming the trial court’s decision that the joint will was not contractual, the Appellate Court said:

“But it is not necessary to rest this conclusion solely on an interpretation of the will itself. We have the benefit of the testimony of the attorney who drafted it according to the instructions and wishes of Mr. and Mrs. Nesbett and who says that they ‘wanted a joint will, wanted it where they could leave it to whoever they wanted to after one had died.’ This, in our opinion, is sufficient to support the judgment of the trial court.”

In the Crain case, the language used in the will is very similar to that used in the 1941 will of Mr. and Mrs. Denny. But in the Crain ease, the Court pointed out that the extrinsic evidence showed that the sole purpose of the joint will was to effect a saving in attorney’s fees. In the case before this Court, there is no extrinsic evidence. Thus both the Nesbett case and the Crain case can be distinguished on the basis that there was extrinsic evidence in each case to support the conclusion that those wills were not mutual.

While the survivor of a joint and mutual will may technically revoke the earlier will by a subsequent will, the beneficiaries under such mutual will have a cause of action and may come into Court and enforce their rights. Tips v. Yancey, 431 S.W.2d 763 (Tex.1968). In such a situation the law imposes a constructive trust upon the properties of the estate which are held by the devisees under the subsequent will as trustee for the benefit of the beneficiaries under the prior will. Wyche v. Clapp, 43 Tex. 543 (1875); Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (1930).

We sustain the Appellants’ first and second points of error and hold that the 1941 will of Mr. and Mrs. Denny was a joint, mutual and contractual will and that Mr. Denny by a subsequent will could not effectively devise and bequeath the land here in dispute to the Appellee.

We next turn to the question of whether or not the Appellee established title under the statutes of limitations. We conclude that it did not. In this case the Appellee held legal title as trustee for the use and benefit of the Appellants. The Appellants did not know of their rights under the 1941 will until approximately one year before this suit was filed, and prior to the filing of suit there had been no conduct upon the part of the Appellee which gave Appellants notice that they were beneficiaries under their aunt’s will, or which put them upon notice or inquiry as to their rights under that will.

In Cole v. Noble, 63 Tex. 432 (1885), the Court pointed out a distinction as to when a statute of limitations will commence to run in a resulting trust and in a constructive trust and said:

“It is common learning that in cases of resulting trusts, so long as the trust relation is admitted, and there is no adverse holding by the trustee or any one claiming under him, no lapse of time will bar the cestui que trust. Id., 141; Dow v. Jewell, 18 N.H., 340.
“In case of a constructive trust, which is born of fraud, and which presupposes from its beginning an adverse claim of right on the part of the trustee by implication, the statute will commence to run from the period at which the cestui que trust could have indicated his right by action or otherwise. Hunter v. Hubbard, 26 Tex., 537; Anderson v. Stewart, 15 Tex., 285; Carlisle v. Hart, 27 Tex., 350.
“But even in such cases the trustee must bring himself clearly within the position of a continued and consistent adverse claimant (Grumbles v. Grumbles, 17 Tex., 472), and the cestui que trust must have no reasonable excuse for failing to prosecute his claim within the proper time. McKin v. Williams, 48 Tex., 89.”

In Rice v. Ward, 92 Tex. 704, 51 S.W. 844 (1899), the Court noted the necessity for some conduct upon the part of the trustee which gives notice to the beneficiary of a repudiation of the trust, and the reason for such requirement. The reasoning of the Court is set forth in clear and concise language as follows:

“The reason that the statute of limitations begins to run against a cestui que trust when the trustee repudiates the trust, and the act of repudiation is known to the beneficiary, is that the latter is thereby notified that the trustee no longer holds the property for him, and, if he claims the existence of the trust relation, it becomes his duty to assert his right with reasonable diligence; that is, within the time prescribed by law for prosecuting such suits, otherwise his claim would be barred by the statute of limitations. If, however, the act of the trustee is not inconsistent with any right of the beneficiary which is known to the latter, then there is no cause for his bringing his suit, there being no violation of any known right. If the heirs of Ward knew that Rice held the property as mortgagee, and Rice so used it as to show to them that he claimed it as his own, then it became their duty to assert their right within the time prescribed by the statute. If, however, the heirs did not know of the existence of the trust, how could it be possible that they would sue Rice for using property as his own which appeared to them to belong to him? * *

On at least two occasions Justice Walker, writing for the Texas Supreme Court, has noted that limitations do not begin to run in favor of a trustee and against the cestui unless there is no reasonable excuse for failing to prosecute the claim within the proper time, and that there is no duty to investigate a repudiation of a trust until the cestui has knowledge of facts sufficient to excite inquiry. Courseview, Incorporated v. Phillips Petroleum Company, 158 Tex. 397, 312 S.W.2d 197 (1957); Andretta v. West, 415 S.W.2d 638 (Tex.1967).

One leading authority in the field of trust points out that if a cause of action to obtain a constructive trust exists the statute of limitations does not run against it until the injured person knew of the wrong, or had notice of facts which should have brought to him knowledge of the illegality, and that the rights of the cestui are not affected where the trustee conceals the unlawful act, or for other reason not involving neglect on the part of the beneficiary notice of it does not come to him. Bogert, Trusts and Trustees, 2nd Ed., § 953, at 493-496.

In Bom v. Bluestein, 220 S.W.2d 345 (Tex.Civ.App. — Beaumont 1949, no writ), it was claimed that the devisees under a will were barred by the four, five and ten-year statutes of limitations. In rejecting the plea of limitations, the Court said:

“ * * * The present suit was filed within a short time after the appellee E. Bluestein learned of the existence of his mother’s will and of the facts surrounding his ownership of a portion of her property. We believe the rule is well established that limitation did not begin to run against the sons as beneficiaries under their mother’s will until they learned of the existence of the will and the surrounding facts of ownership in 1945. * * * ”

This entire question is discussed at some length in an annotation in 55 A.L.R.2d 220, which notes many of the Texas cases.

On the record before us the evidence is without dispute that the Appellants did not know that they were named as devisees in the 1941 joint will until approximately one year before the present suit was filed in District Court. We find no facts in the record in this case which would charge them with constructive notice or put them upon inquiry prior to their obtaining actual knowledge of the existence of that will.

We do not hold that the statutes of limitations could not begin to run just because the Appellants did not know of their rights under the 1941 will, but because the Appel-lee as trustee had a duty to disclose its position and was required to repudiate its position of trust, or otherwise give notice to Appellants of their rights. Otherwise, one reaches the results which the Court condemned in Rice v. Ward, supra, when it said:

“ * * * If the doctrine contended for by the appellant be maintained, then every minor whose parent creates such a trust, and dies without communicating the fact to his heir, can be defrauded of the right by the trustee using the property as his own, and thus setting the statute of limitations in motion against his cestui que trust, who was ignorant of the relation and of his rights. * * * ”

The Appellants’ third point of error is sustained, and we hold that Appellee did not obtain title to the land in question by limitations. The judgment of the trial Court declaring title to the eight sections of land to be in the Appellee is reversed and judgment rendered divesting Appellee of its title and declaring title to such land to be in the Appellants.

The Appellants by their fourth and fifth points of error contend alternatively that the trial court erred in not granting to them at least the interest in the land owned by Minnie Gay Denny which vested in them under the joint will at the time of her death and the probate of such will, and that they thereby became co-tenants with the Appel-lee upon the death of Mr. Denny and that Appellee has failed to prove sufficient notice to Appellants to establish any limitation title by one co-tenant against another co-tenant. In view of our holding in this case we do not reach or pass upon the last two points of error which have been presented in the alternative.

This brings us to an issue which was raised by the evidence and a trial amendment in the trial court but which has not been properly presented to this Court by a cross-point of error. The Appellee offered proof in the trial court that it paid to the State as the balance of the purchase price on the land involved the sum of $4,332.04. Proof was also offered that the Appellee paid interest in the amount of $207.98 for five years prior to the time the unpaid balance was paid to the State. In addition, evidence was offered that every three years major repairs were made on the windmills on the ranch and that these ran about $1,000.00 each time, although the last time the repairs were only $390.00.

After all of the evidence had been presented, the Appellee obtained leave of Court to dictate a trial amendment in which it alleged that it had paid to the State of Texas $4,322.04 as the unpaid purchase price, together with interest for five years of approximately $207.00 per year, plus improvements to the windmills of approximately $3,000.00 and sought recovery of such sums in the event of an adverse judgment as to the title to the property in question. In view of the favorable judgment as to title, the judgment was silent as to the amounts sought in the trial amendment and there are no findings of fact or conclusions of law as to those particular items of expense. The Appellee has not filed in this Court any cross-point seeking in the alternative to recover such sums in the event the judgment of this Court be adverse on the title question.

Since we have concluded that the judgment of the trial court is erroneous on the title question, we conclude that in the interest of justice this particular phase of the case should be remanded to the trial court for proper findings and judgment.

We therefore reverse and remand the entire ease to the trial court with directions to forthwith enter judgment for the Appellants for title to the eight sections of land here involved and to enter such judgment as is proper under the evidence previously presented concerning the items of recovery sought by the Appellee in its trial amendment.

PRESLAR, Chief Justice

(dissenting).

I respectfully dissent and would affirm the judgment of the trial Court granting title to Appellee.

This is a trespass to try title case and Appellee as plaintiff pled the five and ten-year statutes of limitations. The trial court granted judgment for Appellee. Findings of fact and conclusions of law were neither requested nor filed and it must be presumed on appeal that the trial court made such implied findings as were necessary to support the judgment. Texas Van Lines, Inc. v. Godfrey, 313 S.W.2d 922 (Tex.Civ.App. — Dallas 1958, writ ref’d n. r. e.). The proof is clear that Appellee met all of the requirements of the five and ten-year statutes of limitations, and, in fact, Appellants do not present points of error questioning the sufficiency of the evidence to sustain such findings. Under this state of the record I see no escape from an outright affirmance of the trial court judgment.

In solving the intriguing question of the construction of the will it seems to me that the majority overlooks the significance of the limitations statutes. Assuming they are correct in the construction of the will, Appellee must still prevail under its limitations claims. Art. 5513, Vernon’s Tex.Rev. Civ.Stat.Ann., provides: “Whenever an action for the recovery of real estate is barred by any provision of this title, the person having such peaceable and adverse possession shall be held to have full title, precluding all claims.” The various statutes of limitations as to the titles to land are statutes of repose intended for the purpose of quieting title in land and differ from the ordinary limitations statutes in that under them one may acquire an absolute title to land. This, even though he be a naked trespasser. We need only to look at the early decisions to see the construction that the Courts of Texas have placed on these statutes to carry out this purpose of quieting title. In the early case of Burton’s Heirs v. Carroll, 96 Tex. 320, 72 S.W. 581, decided by the Supreme Court of Texas in 1903, certain quotations are pertinent:

“A title by limitation constitutes a chain of title from the sovereignty of the soil; * * *. It being true that a title by limitation may be used as outstanding title for defense of possession merely, and will defeat a regular paper title, it follows that title by limitation is superior to all other claims to that land.”
“ * * * Full title embraces legal and equitable title to the property, and comprehends that which passed from the government by patent; consequently, if limitation confers full title upon the possessor, then it must divest title out of all other claimants, and vest the same in the possessor under the claim of limitation. ‡ * ‡ !)

Similar expressions may be found in the many decided cases under the limitations statutes. In the case of Cox v. Elerson, 437 S.W.2d 312 (Tex.Civ.App. — Amarillo 1968, writ ref’d n. r. e.), the Court quoted from the Supreme Court case of Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420 (1960), as follows:

“ ‘As indicated by the ten-year statute, it is the policy of this state to give effect to an adverse holding, even by a naked possessor, when the adverse holding measures up to the statutory requirements so that title by limitation may be acquired by one who had neither title, color of title, nor muniment of title duly registered. The claimant is required only to have had the exclusive, peaceful and adverse possession of the land under a claim of right for not less than ten years. 2 Tex.Jur.2d, Sec. 116, at p. 227. When the statutory requirements are complied with, title is vested in the adverse claimant as completely as by a deed or patent, and the title that is created constitutes a chain of title from the sovereignty of the soil. Burton’s Heirs v. Carroll, 96 Tex. 320, 72 S.W. 581.’ ”

The majority is concerned that the Appellants had no knowledge of the fact that they had inherited this land. Possibly that is true of the many decided cases because many of them involve heirs, but the law makes no exception from the limitations statutes for lack of knowledge. Art. 5518, Tex.Rev.Civ.Stat.Ann., lists the disabilities of persons that suspend limitation. They are: A person, including a married person, under twenty-one years of age, or a person in the military or naval service in time of war, or a person of unsound mind, or a person imprisoned. These are the only statutory disabilities. No case can be found which shows that one’s ignorance of his cause of action will not prevent the statute of limitations from running, in the absence of some form of fraud. In fact the decided cases hold to the contrary. State v. Jones, 315 S.W.2d 435 (Tex.Civ.App. — Dallas 1958, writ ref’d n. r. e.). And it has been held that the statutes of limitations, barring an action for the recovery of land, run against those who inherit an interest in property whether they are aware of such inheritance or not. Krause v. Hardin, 222 S.W. 310 (Tex.Civ.App. — San Antonio 1920, writ dism’d); McCook v. Amarada Petroleum Corporation, 93 S.W.2d 482 (Tex.Civ.App.— Texarkana 1936, writ dism’d); 37 C.J. § 350, p. 969; 2 Tex.Jur.2d Adverse Possession § 53, p. 118. In the McCook case, the Court said:

“The appellants contend that the statutes of limitation against their action for the recovery of the land could not run against them for the reason that they did not know until 1931 that they inherited an interest in the land in controversy. The trial court found it to be a fact that appellants did not know of their title to the land until about this time. Such fact alone, it seems, will not toll the statutes of limitation in this state. * * * ”

In the same case, it was held that to prevent the running of the statute of limitations there must be proof that the claimant fraudulently concealed from the other party knowledge of such party’s interest in the land. On this question, our Supreme Court has held that the concealment of the right to a cause of action must be fraudulent to prevent the running'of the statute of limitations. Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 114 A.L.R. 859 (1938); City of Vernon v. Low, 158 S.W.2d 857 (Tex.Civ. App. — Amarillo 1942, no writ). Mere silence does not constitute concealment. Hickok Producing & Development Co. v. Texas Co., 128 F.2d 183 (5th Cir. Tex.1942). The gist of the majority holding is in their paragraph: “We do not hold that the statutes of limitations could not begin to run just because the Appellants did not know of their rights under the 1941 will, but because the Appellee as trustee had a duty to disclose its position and was required to repudiate its position of trust, or otherwise give notice to Appellants of their rights.” They then cite Bice v. Ward, 92 Tex. 704, 51 S.W. 844 (1899), which was a case entirely different from this one in that it was a suit against the fraudulent trustee. Fraud was the basis of the decision. There is absolutely no hint of fraud in this case before us. Fraud is also in the case of Born v. Blue-stein, 220 S.W.2d 345 (Tex.Civ.App. — Beaumont 1949, no writ), cited by the majority. In this regard it should be noted that not only did the Appellee not engage in fraudulent conduct, but that it was entirely without knowledge of the existence of the Appellants, or their claim. It was stipulated by the parties that the probate proceedings of the 1941 will of Minnie Gay Denny were never placed of record in Terrell County where the land is located, so there was no constructive notice to Appellee. It is undisputed that the Appellee did not know of the Appellants or their claim. Yet, the majority decides this case on the basis that the Appellee had a duty to disclose its position, was required to repudiate its position of trust, or otherwise give notice to Appellants of their rights. Appellee is found at fault for not disclosing what it did not know to people it did not know existed. In Owen v. King, supra, the Court said:

“Generally, the question of tolling a statute of limitation arises in cases founded upon fraud, but the rule is not limited in its application to such cases. The fraudulent concealment of a cause of action by the defendant, even though that cause of action may not have arisen in fraud, will avoid the bar of the statute of limitation, where the plaintiff, after exercising ordinary diligence, fails to discover the existence of a cause of action. But the concealment must be fraudulent. Mere failure to disclose a cause of action or mere concealment of a cause of action, when the defendant owes no duty to disclose, is not fraudulent concealment. A defendant has the right to rely upon the statutes of limitation the same as upon any other statutes, and will be denied that right only when his own fraudulent conduct has prevented the other party from discoyering his rights. McFaddin, Wiess & Kyle Land Co. v. Texas Bice Land Co., Tex.Civ.App., 253 S.W. 916, affirmed, Tex.Com.App., 265 S.W. 888.”

Even if we hold Appellee to the standard of conduct required by the majority, it must prevail, for it has made a clear repudiation of any trust by acceptance of the deeds giving it full title, placing them of record, and entering into possession. A similar case is Ewalt v. Luna, 316 S.W.2d 804 (Tex.Civ.App. — Dallas 1958, writ ref’d n. r. e.). There the widowed mother gave a deed to one son and years later the heirs of her other children sued seeking to impose a constructive trust for their share of the property. Citing the recording statute, Art. 6646, Tex.Rev.Civ.Stat.Ann., which provides that a deed duly recorded shall be taken and held as notice to all persons of the existence of such deed, the Court held:

“By the provisions of Art. 6646, Vernon’s Ann.Civ.St., appellants were on notice that the warranty deed from Mrs. Sara Luna to her son Emmett carried full title to the property therein conveyed and constituted an absolute repudiation of any theory of trust. In consequence, appellants here ought not be permitted to assert claim to the property as against the various pleas of limitations, they having delayed for more than twenty-five years to institute action for its recovery. Owens v. Owens, Tex.Civ.App., 294 S.W.2d 305.”

Appellee placed its deed of record, entered into possession, paid the taxes, did other acts asserting its ownership for a period of ten years prior to suit. It should prevail under both the five and ten-year statutes of limitations. Arts. 5509 and 5510, Tex.Rev. Civ.Stat.Ann.

For the reasons stated, I would affirm the judgment of the trial court.

April 30, 1975.

STEPHEN F. PRESLAR, Chief Justice.

ON MOTION FOR REHEARING

The Appellee’s Motion for Rehearing is granted.

Upon further consideration, the dissenting opinion authored by Chief Justice Pres-lar, filed April 30,1975, is substituted as the opinion of this Court controlling the disposition of this case. For the reasons stated in such dissenting opinion, the judgment of the trial court is affirmed.

June 4, 1975.

WILLIAM E. WARD, Associate Justice.

DISSENT

That which was written in the original majority opinion now becomes my dissent. Further, it appears that what Justice Walker said in Andretta v. West, 415 S.W.2d 638 (Tex.1967), concerning the question of limitations, should also be applicable in this case.

I cannot agree that Appellee “was entirely without knowledge of the existence of the Appellants, or their claim.” Since the Appellee claims record title to the entire ranch under deeds from the Executor of W. Denny’s Estate, Appellee must necessarily be on notice of the provisions of the will of Minnie Gay Denny which passed her interest in the ranch upon her death to W. Denny, and which is a part of the Appellee’s chain of title.

Neither can I agree that under the circumstances in this case placing the deeds of record gave Appellants notice of the repudiation of the constructive trust. Such act gave no notice to Appellants of their rights under the 1941 will and did not start the running of limitations. Davis v. Davis, 49 S.W. 726 (Tex.Civ.App.1899, writ ref’d).

The plea of not guilty would raise the issue of notice, but in any event, under the record in this case, the issue of notice or lack of knowledge was tried by consent. And while all would agree that limitations would normally begin to run from the time a constructive trust is created, there are exceptions to the rule. Briggs v. McBride, 190 S.W. 1123 (Tex.Civ.App.- — Amarillo 1916, no writ). Such an exception occurs where the cestui que trust has a reasonable excuse for failing to prosecute his claim within a reasonable time. Cole v. Noble, 63 Tex. 432 (1885). Such excuse can occur where the trustee lulls the cestui into a belief that the trust continues, and where the cestui has no knowledge of the rights created for his benefit and there is no neglect in discovering such rights. Landram v. Robertson, 195 S.W.2d 170 (Tex.Civ.App. —San Antonio 1946, writ ref’d n. r. e.); Briggs v. McBride, supra; Bogert, Trusts and Trustees, 2d ed., § 953.

While the trial court may not have been compelled to accept as true the Appellants’ testimony concerning their first notice of their rights under the 1941 will, the trial court could not find from such testimony notice or knowledge at some earlier time. And until it was established that Appellants did have notice of their rights under the will or knowledge of facts sufficient to excite inquiry, then the statute of limitations would not be applicable.

For the reasons previously stated, I would reverse and remand the case to the trial court with directions to enter judgment as set forth in this Court’s original majority opinion in this cause.

June 4, 1975.

MAX N. OSBORN, Associate Justice.


author: McDONALD, Chief Justice.

text:
    D. H. LEWTER, d/b/a Westwood Day School, Appellant, v. DALLAS COUNTY, Appellee.
    No. 5459.
    Court of Civil Appeals of Texas, Waco.
    June 5, 1975.
    Rehearing Denied July 10, 1975.

      Firm of Larry S. Parnass by H. Frank Tripp, Irving, for appellant.
    Henry Wade, Dist. Atty., Edward R.' Blackstone, Asst. Dist. Atty., Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Lewter from summary judgment he take nothing in a suit for damage against Dallas County for 1) trespass, and for 2) taking of plaintiff’s private property for public use.

Plaintiff sued Dallas County (and the City of Irving) alleging defendants did construction work on West Shady Grove Road adjacent to and abutting plaintiff’s property; that defendants “have taken for public use and constructed a concrete and asphalt sidewalk along the south 7.5 feet of plaintiff’s property 120.5 feet in length; that such sidewalk is for the use and benefit of the general public; located entirely on plaintiff’s property, that plaintiff has never been compensated for such property; that such taking of property for public use without compensation is in violation of law; and that plaintiff is entitled to damages for trespass as well as reasonable compensation for the taking”.

Defendant Dallas County answered among other matters that “County claims no interest in the property and plaintiff is free to use his property in any way he wishes and may even remove any concrete or asphalt he wishes to remove”.

Dallas County filed motion for Summary Judgment and Amended Motion for summary judgment that plaintiff take nothing asserting that under the undisputed facts there had been no taking of plaintiff’s property as a matter of law, and that plaintiff had not given defendant required notice of his claim.

The trial court rendered summary judgment plaintiff take nothing.

Plaintiff appeals on one point. “The trial court erred in granting summary judgment for the defendant County of Dallas”.

The record on summary judgment consists of the pleadings, the motions for summary judgment, plaintiff’s answer to motions for summary judgment, plaintiff’s wife’s affidavit that Dallas County or its agents caused to be placed a concrete and asphalt sidewalk 7.5 feet along plaintiff’s property 120.5 feet in length; that such has been used by the general public and plaintiff has been deprived of the use of his strip of property; and that plaintiff did not authorize Dallas County or anyone else to construct the sidewalk, nor has plaintiff ever dedicated such land to public use.

Defendant Dallas County filed no affidavit or other summary judgment evidence.

Defendant asserts in its brief that plaintiff has not stated a cause of action because his petition 1) did not allege compliance with Article 1573 Vernon’s Ann.Tex.Civ.St., and 2) did not‘allege that the Commissioners’ Court of Dallas County intended to or claimed to exercise the power of the County to take plaintiff’s property for public use. Defendant further asserts it disclaimed any interest in the property in its answer.

Rule 90 Texas Rules of Civil Procedure provides that every defect, omission or fault in a pleading either of form or substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the trial court ⅜ * * shall be deemed as waived * ⅜ ⅜. Rule 91 provides that a special exception shall point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality or other insufficiency in the pleading excepted to.

Defendant filed no exceptions to plaintiff’s pleading pointing up plaintiff’s omission in not alleging compliance with Article 1573 V.A.T.S., and in not alleging the Commissioners’ Court of Dallas County intended to or claimed to exercise the power of the County to take plaintiff’s property for public use.

Defendant thus waived the right to have plaintiff so plead and such deficiencies may not be raised for the first time on appeal. Tolson v. Carroll, Tex.Civ.App., NWH, 313 S.W.2d 131.

In the absence of special exceptions plaintiff’s pleading is sufficient to plead both a cause of action for damages for trespass, and for the taking of plaintiff’s property for public use.

Defendant’s answer disclaiming any present interest in the property does in no way negate plaintiff’s cause of action for trespass.

Defendant’s motion for summary judgment did not meet plaintiff’s case as plead. Torres v. Western Casualty & Surety Co., Tex.S.Ct., 457 S.W.2d 50; Mechthilde Hebert & Earl D. Hebert, v. Continental Land Corp., et ah, Tex.Civ.App., NWH, 513 S.W.2d 948; and the reasons to affirm advanced by defendant in its brief have been waived by its failure to except to plaintiff’s pleading as required by Rules 90 and 91 T.R.C.P.

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex.S.Ct., 450 S.W.2d 827. All burdens are on the movant. Swilley v. Hughes, Tex.S.Ct., 488 S.W.2d 64. The party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, Tex.S.Ct., 456 S.W.2d 901.

Defendant did not establish its entitlement to summary judgment that plaintiff take nothing.

Plaintiff’s point is sustained.

Reversed and remanded.

ON REHEARING

Appellee, defendant County of Dallas on Motion for Rehearing contends this court erred in applying Rule 90 T.R.C.P.; that Rule 90 applies only to a party seeking a reversal, and not to a party seeking to uphold a judgment which presumably held that pleadings were insufficient; and cites Ward v. Clark, Tex.Civ.App., NWH, 435 S.W.2d 621; Butler, Williams & Jones v. Goodrich, Tex.Civ.App., NRE, 306 S.W.2d 798; Lincoln v. King, Tex.Civ.App., NWH, 193 S.W.2d 437, and Goodman v. Art Reproduction Corp., Tex.Civ.App., NRE, 502 S.W.2d 592; as controlling.

We reject such contention. Insufficiency of pleading cannot be raised for the first time on appeal. Sherman v. Provident American Ins. Co., Tex.S.Ct., 421 S.W.2d 652; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Texas Dept, of Corrections v. Herring, Tex.S.Ct., 513 S.W.2d 6.

Herring, supra, is directly in point to the factual situation in the case at bar, and expressly holds that the protective features .of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings, and that to do so would revive the general demurrer discarded by Rule 90, T.R.C.P. Swilley v. Hughes, Tex.S.Ct., 488 S.W.2d 64, cited in original opinion is to the same effect.

Motion for rehearing overruled.

      . The City of Irving is not involved on this appeal.

      . Article 1573 provides no county shall be sued unless the claim on which suit is brought is first presented to the Commissioners’ Court, and such Court neglects or refuses to allow same.


author: CHADICK, Chief Justice.

text:
    Jarvis L. SMOAK, Appellant, v. Wanda SMOAK, Appellee.
    No. 8293.
    Court of Civil Appeals of Texas, Texarkana.
    June 24, 1975.
    Rehearing Denied July 29, 1975.

      Joe A. Hughey, Marshall, Sharp, Ward & Ross, Longview, for appellant.
    Ronald Ned Dennis, Kirkpatrick, Grant, Dennis & Reed, Marshall, for appellee.
   CHADICK, Chief Justice.

This is a divorce case. Except for a procedural question, the issues in this appeal arise out of a division of property. The judgment of the trial court is affirmed.

The record shows that a nonjury trial was commenced on June 7, 1974. After the introduction of considerable testimony the trial was adjourned until September 12, 1974, when additional testimony was adduced. Ten days thereafter on September 23, 1974, the husband, Jarvis L. Smoak, defendant in the trial court and appellant here, filed a motion for new trial. The trial court judgment dissolving the bonds of matrimony theretofore existing is dated October 22, 1974. The appellee, Wanda Smoak, plaintiff below, calls attention to the fact, that the transcript and statement of facts herein were not filed until January 3, 1975, a period of seventy-two days after the October 22 judgment was entered in the trial court.

In perfecting an appeal, Texas Rules of Civil Procedure, rule 386 requires an appellant to file the transcript and statement of facts within sixty days from the rendition of final judgment or order overruling a motion for new trial, unless filing time is extended in accordance with the provisions of the rule. Prematurely filed motions for new trial, as in this instance, are effective and will be deemed to have been filed on the date of but subsequent to the date of the judgment. Tex.R.Civ.P. 306c. As no order to the contrary was entered, the motion for new trial herein was overruled by operation of law forty-five days after the date it was filed. Tex. R.Civ.P. 329b; 4 McDonald Tex.Civ. Practice, Sec. 18.06.04 (1971). Computation shows the appeal record was timely filed. The procedural consequence of the prematurely filed motion for new trial is discussed in 4 McDonald Tex.Civ. Practice, Sec. 18.-04.3 (1971).

Appellant has briefed five points of error. For convenience, appellant’s fourth point will be first discussed, it is:

“POINT OF ERROR FOUR. The Court erred in making fifty-one (51) head of mixed cattle a part of the community estate when they were respondent’s separate property.”

The evidence shows that Mr. and Mrs. Smoak were divorced prior to 1948 and remarried in 1950 or 1951. At the time of remarriage Mr. Smoak owned, as separate property, fifty head of cattle, bought in 1948. Mrs. Wanda Smoak helped manage this herd and at the time of trial the couple had approximately seventy-five head of cattle; twenty-five admittedly community property. The record does not show that any of the original cattle were still on hand at trial time or the time any of the present herd was acquired. The operation of the cattle business during the marriage is shown by this extract from the record:

“Q. During the period of time since you all were married the last time and you had the fifty head, the money that you sold off of those fifty head, did you use that money to replace the cattle back with?
“A. Yes, I bought and sold cattle all the time and kept a record of each year. My old income tax states that, how much I would buy and how much I would sell.”

The joint income tax returns of Mr. and Mrs. Smoak for 1970, 1971 and 1972 were introduced. The returns do not classify separate and community income, nor otherwise aid in solution of issue here.

There is no contention that the Smoaks had the identical cattle bought more than twenty-five years prior to the trial, or offspring therefrom. Neither does Mr. Smoak trace the proceeds of sale of his separate cattle to reinvestment in any specific cattle in possession. The evidence supports a conclusion that production and sale of cattle was on a commercial basis and that the original fifty head of cattle and proceeds from the sale thereof were commingled with community assets of like nature. Under the circumstances the cattle on hand at the time of the trial are presumed to be community property. Moss v. Gibbs, 370 S.W.2d 452 (Tex.1963).* See also William 0. Huie, Commentary — Texas Community Property Law, 13, Tex.Rev.Civ. Stat.Ann. 1, l. c. 32, Sec. 10, Problems Involved In Separating Income from Principal; 28 Tex.L.Rev. 576; 29 Tex.L.Rev. 339; 12 Tex.Jur.2d Community Property, Sec. 31, 34.

Appellant’s first, second and third points of error will be discussed as a group, they are:

“POINT OF ERROR ONE: The Court erred in the manner in which the community property was divided in that the evidence clearly shows that the property was more valuable if sold in its entirety.
“POINT OF ERROR TWO: The Court erred in not granting the respondent at least fifty (50) percent (%) of the community property accumulated during the marriage of Wanda Smoak and Jarvis L. Smoak.
“POINT OF ERROR THREE: The Court erred and abused its judicial discretion in awarding the petitioner the bulk of the estate when the evidence shows the respondent to be disabled and the petitioner in good health.”

An appraiser was appointed by the court and his valuation of community assets was received without objection. Except in the particular to be mentioned, the court evenly divided the assets, on the basis of appraised value. The exception was that the value of Mrs. Smoak’s retirement fund with her employer, her shares in an employee credit union and several U. S. Saving Bonds, the items together having a value of $6,300.00, were awarded to her in addition to her share of other property. Her advantage in the division was the value of these items.

Courts are required to give due regard to the rights of the parties and make a division of property in a manner deemed just and right. Tex. Family Code Sec. 3.63. Similar language in earlier enactments has consistently been construed as not requiring the shares of property awarded in making a division to be of equal monetary value. The health, capacities and abilities of the parties, disparity in earning power and business experience and many other factors may be considered in making a division, including the nature and potential of the property itself. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Becknell v. D’Angelo, 506 S.W.2d 688 (Tex.Civ.App. Fort Worth 1974, writ dism’d); Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App. Eastland 1964, no writ); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App. Texarkana 1970, no writ). In this instance the trial court judgment is supported by the record, and abuse of discretion is not shown. Compare In Re: In the Matter of the Marriage of Harvey K. Jackson and Lera C. Jackson, 506 S.W.2d 261 (Tex.Civ.App. Amarillo 1974, writ dism’d); Reaney v. Reaney, 505 S.W.2d 338 (Tex.Civ.App. Dallas 1974, no writ); Berdoll v. Berdoll, 398 S.W.2d 397 (Tex.Civ.App. Austin 1966, no writ); Dorfman v. Dorfman, supra. It is the duty of an appellate court to indulge every reasonable presumption in favor of the proper exercise of discretion by the trial court when reviewing a division of property. Dorfman v. Dorfman, supra.

Initially, the appraiser appointed by the court testified that the several separate tracts of land in the community estate would be more valuable if sold separately but on cross-examination agreed that a sale as a unit might produce a better price. Mr. Smoak cites no authority but argues that the real estate should have been sold and proceeds divided. No harm is perceived in the trial court’s action. In Dorfman v. Dorfman, supra, this court said that a division may be accomplished by any legal device or equitable means that does not compel divestiture of a party’s title to separate real property. It was pointed out in that case that a sale was a technique available to a trial court under certain circumstances but that such course was beset with difficulties and hazards. It was not an abuse of discretion to order a division in kind under the circumstances shown.

Appellant’s fifth point of error and appellee’s single cross-point will be discussed together, they are:

“POINT OF ERROR FIVE: The Court erred in awarding petitioner attorney fees in the amount of $750.00 to be paid by respondent when in fact the petitioner contracted in her own right for such indebtedness.”
“Cross Point of Error No. 1 The trial court erred in failing to award the Petitioner a reasonable amount of attorneys fees, to-wit: at least $3,000.00.”

The parties have been twice divorced and remarried before the current action. The wife’s recovery of attorney fees in a divorce action is founded upon the husband’s liability to furnish ‘necessaries.’ 20 Tex.Jur.2d Divorce and Separation, Sec. 298. Impliedly, the court found a divorce was necessary in this instance. Allowance of an attorney fee of $750.00 in this case, a net estate of approximately $80,000.00 is involved, does not show a disposition on the part of the trial judge to be lavish in fixing attorney fees. However, there is testimony that the wife contracted to pay her legal counsel a fee of $5,000.00. Also counsel for Mrs. Smoak was the only witness to the work performed and its value. When the record as a whole is considered along with the discretion vested in the trial judge, the evidence does not show an abuse of discretion produced the order entered. See Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App. Corpus Christi 1964, writ dism’d).

In the absence of reversible error, it becomes the duty of this court to affirm the judgment of the trial court. It is so ordered.

       The increase of separate property cattle was held to be community property in Wagnon v. Wagnon, 16 S.W.2d 366 (Tex.Civ.App. Austin 1929, writ refd).

      '* The managerial powers of the spouses over community property has had comprehensive legislative treatment since this case was decided. See Tex. Family Code Sec. 5.22, V.T.C.A. The authority of the case in that respect may be considered as legislatively overruled. William O. Huie, Divided Management of Community Property in Texas, 5 Tex.Tech.L.Rev. 623. The pronouncements of the case on commingling of separate and community assets are still valid.