author: HUGHES, Justice.

text:
    Philip C. McGAHEY, Trustee and Summers Electric, Inc., Appellants, v. Bruce M. FORD et ux., and Southwest Savings Association, Appellees.
    No. 17934.
    Court of Civil Appeals of Texas, Fort Worth.
    March 9, 1978.
    Rehearing Denied April 6, 1978.

      Nelson & Lewis, Denton, Bagby, McGa-hey, Ross & DeVore, and Philip C. McGa-hey, Arlington, for appellants.
    Jack Gray, Denton, Biggers, Lloyd, Big-gers, Beasley & Amerine, and Arch A. Beasley and Rick W. Hightower, Dallas, for appellees.
   OPINION

HUGHES, Justice.

Philip McGahey, Trustee, and Summers Electric, Inc., appeal from a judgment granting a permanent injunction against their foreclosing a deed of trust lien taken to secure pre-existing debts and covering certain real estate which was alleged to be homestead property. Appellants contend that the property was not homestead because record title was in a corporation when they took their deed of trust. Appellees are the subsequent purchasers of the property and their mortgagee. The trial court held that the deed of trust was a void attempt to mortgage homestead property under Tex. Const, art. 16, § 50 because the transfer to the corporation was a pretended sale of the homestead and also void under Article 16, § 50.

We affirm.

Bruce M. Ford and his wife are the owners of a- home purchased under a warranty deed executed by Tim P. West, Inc. and Tim P. West and his wife, Carolyn Snow West. The Fords and their mortgagee, Southwest Savings Association, alleged that the Wests had executed an earlier warranty deed on their homestead property to the corporation for the purpose of mortgaging it for debts other than purchase money and improvements on the homestead. Later, both the corporation and West, individually, executed another deed of trust covering the property in favor of Philip C. McGahey, Trustee, for the benefit of Mayfield Building Supply Co., Inc. (a wholly-owned subsidiary of Summers Electric, Inc.). The Fords allege that this deed of trust is a void attempt to mortgage homestead property prohibited by Tex.Const. art. 16, § 50.

The trustee alleged that at the time May-field Building Supply received its note and deed of trust the property was not the homestead of the Wests because the legal title was shown by the deed records to be vested in fee simple in the corporation.

The trustee filed a cross-action against Southwest Savings and the Fords, alleging their lien is inferior to Mayfield Building Supply’s deed of trust lien and seeking to foreclose. He also joined the Wests and the corporation as third-party defendants, seeking a judgment for $39,718.52 plus interest and attorney’s fees.

The trial court granted judgment for the Fords and Southwest Savings, declaring the deed of trust of October 31, 1975, from the corporation and Tim P. West to Mayfield Building Supply invalid. The court removed the deed of trust lien from the record as a cloud on the Fords’ title and enjoined the trustee from foreclosing on the property. The court also awarded Mayfield Building Supply a judgment against Mr. West and the corporation for $33,715.38.

The record reflects the following series of events:

1. July 18, 1973 — Tim P. West, Inc. purchased the property and became its record owner.

2. March 27, 1974 — A warranty deed from the corporation to Mr. and Mrs. West was filed for record, as well as a deed of trust from the Wests to the Irving Savings and Loan Association to finance the building of the house.

3. January 13, 1975 — By warranty deed the Wests deeded the property to the corporation, which assumed the $55,000.00 first lien obligation to Irving Savings. The corporation, through Mr. West, as its president executed a second lien deed of trust on the property to Irving Savings, to secure a $25,-000.00 loan from Irving Savings to the corporation.

4. March 10, 1975 — The warranty deed of January 13, 1975, was filed for record.

5. October 31, 1975 — Mr. West, on behalf of himself individually and the corporation, executed a note and deed of trust in favor of Mayfield Building Supply, with Philip C. McGahey as trustee. The note and deed of trust were filed for record on November 12, 1975.

6. May 1976 — The Fords purchased the property by warranty deed from the Wests and the corporation. Southwest Savings Association took a note and deed of trust to secure its loan to the Fords.

WARRANTY DEED FROM WESTS TO CORPORATION — JANUARY 13, 1975

The court found that the warranty deed contained an assumption of the original $55,000.00 lien and stated further consideration of an additional loan by West, Inc. of $25,000.00. The court further found that contemporaneously with the warranty deed, the corporation executed a note and deed of trust to Irving Savings Association for the additional loan of $25,000.00 to the corporation and that both the warranty deed and deed of trust were filed in the deed records of Denton County, Texas on March 10,1975. The court also found that the deed was a pretended sale of homestead property for the purpose of mortgaging the homestead for the debts of the corporation.

The court further found that the corporation was in the home building and land development business and that it was wholly-owned by Mr. and Mrs. West, with Mr. West acting as its chief executive officer. There was evidence that after the transfer of the home to the corporation the Wests continued to occupy it as their home but paid no rent. The corporation never demanded possession of the home. West testified the reason he and his wife transferred it to the corporation was to borrow an additional sum of money. The $25,000.00 was used in the business. West also testified that although the corporation assumed the payments on Irving Savings’ first lien, both he and the corporation made the monthly payments to Irving Savings. He further testified that Irving Savings let him borrow the money only to enable him to generate the cash to pay off some things and it probably would have been advantageous from a tax point of view because of tax losses in the corporation. But there was also testimony by West that the reason he deeded the property to the corporation was to borrow money on his homestead, and that any tax benefit was only an incidental one.

NOTE AND DEED OF TRUST IN FAVOR OF MAYFIELD BUILDING SUPPLY EXECUTED BY WEST AND THE CORPORATION — OCTOBER 31, 1975

Cecil W. Mayfield, Mayfield Building Supply’s president, testified that West gave them a note representing amounts past due on the corporate account which had accrued prior to the date of the note. They sought security for the note and West suggested his personal home in which he and his family were living at the time although the record title was in the corporation. Mr. West told Mayfield he had put title in the corporation to avoid paying capital gains in the event he sold it because he had a loss carried forward in his operations. Mr. Fed-dock, Mayfield’s credit manager, also testified to this effect. The trial court found that Mayfield Building Supply had knowledge that the Wests were occupying the property as their homestead when it took its deed of trust.

The trial court found that this deed of trust was not given to secure purchase money indebtedness or for improvements to the homestead. The court also found that the consideration for the deed of trust was preexisting debts owed by the corporation and West, individually, to Mayfield Building Supply. There was also a finding- that Mayfield’s attorney searched the title records before the financing arrangements were made between it and the corporation.

West also testified that he gave Mayfield Building Supply the deed of trust to better secure them on the indebtedness he owed them and that Mayfield advanced no money to the corporation or to him personally.

PURCHASE OF THE PROPERTY BY THE FORDS

The trial court found that the Wests continuously occupied the property as their homestead from March 20, 1974, to May 11, 1976. At the time of the sale to the Fords the first and second liens were paid off from the proceeds of the sale. Releases of those liens were obtained and filed for record. Mayfield Building Supply received no payments on its note and deed of trust.

In point of error no. 1 the trustee contends that the trial court erroneously permitted the Fords and Southwest Savings to make a homestead claim on behalf of the Wests because homestead rights are personal.

The Fords and Southwest argue that they were properly permitted to raise the homestead issue because of the prohibition contained in Tex.Const. art. 16 § 50 which states in part:

No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbe-fore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.

We conclude that the Fords were properly permitted to raise the homestead issue. A void instrument has no effect, even as to persons not parties to it, and its invalidity may be asserted by anyone whose rights are affected. J. P. Wooten Motor Co. v. First Bank of Swenson, 281 S.W. 196 (Tex.Comm’n App.1926, jdgmt adopted). Similarly, a purchaser has standing to assert that a judgment lien never attached to homestead property where the homestead had not been abandoned by his vendor. Hoffman v. Love, 494 S.W .2d 591 (Tex.Civ.App.-Dallas) aff’d on other grounds, 499 S.W.2d 295 (1973).

The cases cited by the trustee are inapplicable. In Maxey v. Patterson, 82 S.W.2d 386 (Tex.Civ.App.-Waco 1935, writ dism’d) the court states only that the privilege of occupancy of one who owns no fee interest is personal and does not pass to others by inheritance nor can it be conveyed. In Walters v. Thompson, 189 S.W.2d 766 (Tex.Civ. App.-Texarkana 1945, writ ref’d w. o. m.) the original owners permitted a default judgment against them without pleading their homestead rights. Their assignee under an assignment of their share in the proceeds of the sale of the homestead was not permitted to raise the homestead issue. Plough v. Moore, 56 S.W.2d 681 (Tex.Civ.App.-Waco 1933 no writ) stands only for the general proposition that the homestead exemption was then for the benefit of families. Purdin v. Jenkins, 337 S.W.2d 418 (Tex.Civ.App.-Dallas 1960, no writ) states that mere occupancy does not make property a homestead. None of the cases cited involve a question of transactions which were alleged to be pretended sales and void under Tex.Const. art. 16 § 50.

Greene v. White, 137 Tex. 361, 153 S.W.2d 575 (1941) stands only for the proposition that one can have no homestead interest in property in which title has not yet been perfected. The issue before us is whether the Wests had title — and a homestead right — when Mayfield Building Supply took its deed of trust or, as the trustee contends, whether the Wests abandoned any homestead rights they had by the transfer to the corporation. If the transfer to the corporation was void, as the Fords contend, it could not constitute an abandonment.

We will next consider whether the transfer of the home by the Wests to the corporation was void under Tex.Const. art. 16, § 50 thereby rendering the Mayfield deed of trust invalid as well.

Point of error no. 4 is that the trial court “erred in making a finding of fact that the deed from (the Wests) to Tim P. West, Inc. dated January 13, 1975 was a pretended sale of the property in question, the purpose of which was to mortgage the property in question for the debts of Tim P. West, Inc.” Point of error no. 5 attacks the court’s conclusion of law that this conveyance was a pretended sale of homestead, with the result that Mayfield Building Supply’s deed of trust was also invalid under Tex.Const. art. 16, § 50.

The wording of point no. 4 does not indicate whether it is intended to attack the trial court’s finding on the ground of factual or legal insufficiency of the evidence to support the finding. Because their argument is framed in terms of a “no evidence” theory and their prayer for relief is that we reverse and render judgment in their behalf, we must deem the point as one of legal insufficiency. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 372 (1960). The test used in considering a “no evidence” challenge to the trial court’s finding of fact is the same as that for a jury finding, Mitchell’s, Inc. v. Nelms, 454 S.W.2d 809 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). We must view all the evidence in the light most favorable to the finding and disregard all evidence to the contrary. If there is any evidence to support the finding, we are bound by it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

There was testimony that the Wests continued to live in the home without paying rent and that the reason the Wests deeded the property to the corporation was to borrow money on the homestead. The deed from the Wests to the corporation recited as consideration the corporation’s assumption of the $55,000.00 note and the execution and delivery by the corporation of its note for $25,000.00 to Irving Savings. But West testified that after the transfer both he and the corporation made the monthly payments to Irving Savings.

In Hardie & Co. v. Campbell, 63 Tex. 292 (1885) the supreme court emphasized that it is the intention of the parties as to whether or not title is to vest which is important in determining whether a sale is real or pretended. In Nowlin v. Wm. Cameron & Co., 54 S.W.2d 1035 (Tex.Civ.App.—Fort Worth 1932, writ ref’d) it was undisputed that the transfer was intended to be bona fide. Likewise, in Mayfield v. First State Bank, 19 S.W.2d 454 (Tex.Civ.App.—Austin 1924, no writ) there was no showing that the transaction was not bona fide and the sale was held to constitute an abandonment of the business homestead. The question of intention is an issue of fact. Mansfield v. Orange Inv. Co., 260 S.W. 307 (Tex.Civ.App.—Beaumont 1924, no writ). We conclude that there was evidence to support the court’s finding that the sale was pretended.

The trial court made no finding as to a “condition of defeasance.” But the evidence is such that the trial court could have found from the circumstances that the parties intended that the house would be deeded back to the Wests if and when the $25,000.00 second lien was paid off. Under Tex.R.Civ.P. 299 this omitted finding is to be supplied by presumption in support of the judgment.

Because the transfer of the property to the corporation was in violation of Tex. Const, art. 16, § 50, the property retained its homestead character and could not be properly mortgaged for any purpose other than purchase money or improvements. We overrule points 4 and 5.

As with point of error no. 4, the wording of point no. 3 does not indicate whether its challenge to the finding of fact is one of factual or legal insufficiency. For the reasons already discussed, we must treat it as one of legal sufficiency, or a “no evidence” point of error.

Having already held that the transfer to the corporation did not change the homestead character of the property, we also conclude that the record contains evidence to support the finding of the court that the property was still the homestead of the Wests on October 31, 1975, when Mayfield Building Supply took its deed of trust. The trial court found that the Wests used the property as their homestead from March 20, 1974, through May 11,1976. The Wests were occupying the property as their homestead on October 31, 1975, and later claimed it in a homestead affidavit executed at the time of the sale to the Fords. We overrule point 3.

In points nos. 2 and 6 the trustee attacks the trial court’s conclusion of law that the property was exempt from foreclosure under Mayfield Building Supply’s deed of trust and that Mayfield Building Supply was not entitled to the protection of a bona fide mortgagee because it had knowledge or notice of facts giving rise to a homestead claim “and/or” that there was no consideration for the Mayfield deed of trust.

Mayfield correctly states that the Wests’ continued possession of the home is not in itself sufficient to charge a mortgagee with notice of secret equities in the property. Union Cent. Life Ins. Co. v. Roach, 106 S.W.2d 374 (Tex.Civ.App.—Waco 1937, writ dism’d). We need not address the question whether there are any additional circumstances in this case which should have put the trustee on notice.

We do not think that Mayfield was entitled to the protection afforded a bona fide mortgagee because the trial court found that there was no consideration for the Mayfield deed of trust except the preexisting debts. The trustee argues that Mayfield Building Supply is entitled to such protection because the record title was in the corporation. The cases cited by the trustee, however, involve purchasers or mortgagees who gave valuable consideration in reliance on the title records: Eylar v. Eylar, 60 Tex. 315 (1883) (purchaser); National Bond & Mortgage Corporation v. Davis, 60 S.W.2d 429 (Tex.Comm’n App. 1933, jdgmt adopted) (acquired note and deed of trust for valuable consideration); First S. & L. Ass'n of El Paso v. Avila, 538 S.W.2d 846 (Tex.Civ.App.-El Paso 1976, writ ref’d n. r. e.) (deed of trust to secure promissory note); Still v. Moffett, 93 S.W.2d 756 (Tex.Civ.App.- Galveston 1936, no writ) (purchaser); Barron v. Theophilakos, 13 S.W.2d 739 (Tex.Civ.App.-Beaumont 1929, no writ) (purchaser).

The trustee argues in his brief that the Mayfield deed of trust did have consideration as recited on its face, and that May-field gave up causes of action when it took the note and deed of trust. But the trustee has not attacked by point of error the trial court’s finding of fact that the consideration for the deed of trust was pre-existing debts, and he is bound by that finding.

Cancellation of a pre-existing debt is not such consideration as will support a claim of bona fide purchaser for value without notice as against a claim that the property conveyed is homestead. Swann v. Rotan State Bank, 115 Tex. 425, 282 S.W. 789 (1926). Nor does a mortgage taken to secure a pre-existing debt entitle one to the position of a bona fide purchaser for value. “There being no new consideration, should the grantee or mortgagee lose the land or his lien upon it, he still has his debt; and for that reason is held to have parted with nothing of value.” Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823 at 824 (1888). Points nos. 2 and 6 are overruled.

All points having been considered and overruled, the judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    EMPLOYERS NATIONAL LIFE INSURANCE COMPANY, Appellant, v. William P. BREWER and wife, Alice Brewer, Appellees.
    No. 5786.
    Court of Civil Appeals of Texas, Waco.
    March 9, 1978.
    Rehearing Denied April 13, 1978.

      Logan Ford, Robert S. Molina and Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellant.
    Vance Dunnam and Gregory N. Combs, Dunnam, Dunnam & Dunnam, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Insurance Company from judgment against it on a life insurance policy, rendered on a jury verdict.

Plaintiffs sued defendant Insurance Company to recover death benefits on a life insurance policy issued by defendant on the life of the insured Jack Van Brewer. Defendant plead that the death of Jack Van Brewer was caused by suicide; that the policy contained an exclusion which provided that if the insured committed suicide within two years from date of issue of the policy that liability was limited to the amount of premiums paid; and that such suicide was within two years of the issuance of the policy.

Trial was to a jury which found:

1) The death of Jack Brewer was not the result of suicide.
2) Plaintiffs made demand on defendant to pay the policy in January 1976.
3) $2,000. is a reasonable attorney’s fee.
4) Defendant denied liability on the policy in January 1976.

The trial court rendered judgment on the verdict for plaintiffs for $13,200. ($10,000. amount of the policy plus $1,200. penalty plus $2,000. attorney’s fee).

Defendant appeals on 13 points, the main contentions of which we summarize as follows:

1) The evidence establishes as a matter of law Jack Van Brewer committed suicide; there is no evidence to support the jury’s answer to Issue 1; or such answer is against the great weight and preponderance of the evidence.
2) The trial court erred in permitting pláintiffs to introduce into evidence testimony of Sharon Nichols and Mary Holstead regarding the appearance of apparent bruises on Jack Van Brewer’s face.
3) Special Issue 1 erroneously places the burden of proof on defendant to establish that the death of Jack Van Brewer was the result of suicide.

Contention 1 asserts the evidence establishes as a matter of law Jack Van Brewer committed suicide; there is no evidence to support the jury’s answer to issue 1; or such answer is against the great weight and preponderance of the evidence.

Jack Brewer was found dead in the house where he lived alone on Sunday December 21,1975 by his brother Bill who came to the house to invite him to dinner. The house was locked by a knob set; the slide bolt lock on the inside was open and not locked; Bill broke a window to get into the bedroom and found Jack lying on his back in the middle of the bed; over his head was a light brown plastic bag which was secured by a rubber band around his neck; nothing in the house was in disorder; there were no signs of a scuffle or fight; attempts to revive Jack were unsuccessful and he was pronounced dead on arrival at Hillcrest Hospital in Waco; an autopsy was performed by Dr. McTaggert who testified Jack died of asphyxiation and suffocation by reason of the plastic bag over his head; that everything about Jack’s body was unremarkable except the condition brought about by suffocation; Dr. Montgomery, a pathologist confirmed Dr. McTaggert’s conclusions as to the cause of Jack’s death; witnesses Nichols, Holstead and William P. Brewer testified they saw discoloration on Jack’s left cheek which appeared to be a bruise; others observed no discoloration; there was evidence blue discoloration may come from a lack of oxygen or just be an effect of death. There was evidence Jack planned to go hunting with his brother and friends the next day; that he was working on his automobile; that he had $750. in savings and a good job; that he seemed in good spirits and appeared to be a normal happy young man to his friends and family; that there was no evidence of drugs or alcohol in Jack’s body; no evidence of foul play or accident was developed by an investigation conducted by Ranger Wright. The death certificate signed by Joe Johnson, J. P. cites “cause of death suicide due to self inflicted asphyxiation placing plastic bag over head”. The bag over Jack’s head contained no moisture; there was evidence that a bag over a person’s head with such person breathing for several minutes causes moisture to accumulate in the bag.

The jury found that the death of Jack Brewer was not the result of suicide.

To overturn a jury verdict in a case of this character, we must be convinced that all of the evidence, viewed in the light most favorable to the insured, proves suicide so conclusively that reasonable minds could not, from the evidence reach any other conclusion. Langlotz v. Citizens Fidelity Ins. Co., Tex., 505 S.W.2d 249; Prudential Ins. Co. v. Krayer, Tex., 366 S.W.2d 779; United Fidelity Life Ins. Co. v. Adair, Tex.Comm. Appeals Judgment Adopted, 29 S.W.2d 944.

In Adair supra the court stated: “In the case at bar we have no statement, written or spoken, from the deceased which even in the remotest indicates an intention to commit suicide, but on the other hand every statement made by him shows, if it shows anything, an opposite intention”.

The evidence here viewed in the light most favorable to the insured, reflects a normal happy young man, who had a good job, who was saving his money, making plans for the future, and appeared to be enjoying life. He was planning to go hunting the next day and was in process of overhauling his automobile; he was not a loner, was outgoing and happy. He did not smoke, drink or take drugs. He was found inside his house dead from asphyxiation with a plastic bag over his head. The door to his home was locked by a knob set lock, but the sliding bolt on the inside was not locked. There was evidence he had bruises on his face. The bag over his head contained no moisture although there was evidence that one breathing into a plastic bag over the head causes an abundance of moisture to accumulate. There was no evidence he had an intention to commit suicide.

We think the jury authorized to find as they did, and that such finding is not against the great weight and preponderance of the evidence.

Contention 2 asserts the trial court erred in permitting plaintiffs to introduce into evidence testimony of Sharon Nichols and Mary Holstead regarding the appearance of apparent bruises on Jack Brewer’s face.

Sharon Nichols, a registered nurse and friend of the family testified that she viewed Jack’s body after his death; that he had a discoloration on his left cheek which appeared to be a bruise. Mrs. Holstead gave similar testimony. Objection was made to Nichols’ testimony that she was not a medical doctor and expert and that she should not be permitted to testify. Objection was made to Mrs. Holstead’s testimony that the question to her was leading and suggestive.

The testimony was admissible.

Contention 3 asserts Issue 1 erroneously places the burden of proof on defendant to establish that the death of Jack Brewer was the result of suicide.

Issue 1 was: “Do you find from a preponderance of the evidence that the death of Jack Brewer was the result of suicide?

Answer: We do not.”

The trial court’s submission of Issue 1 was not error. United Fidelity Ins. Co. v. Adair, supra; Combined American Ins. Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847; Prudential Ins. Co. of America v. Krayer, supra, Geraldine Stevens, Ind. and as Adm. v. The Travelers Ins. Co., Vol. 21 Tex. Sup.Ct. Journal p. 211.

All defendant’s points have been considered and are overruled.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    Gayle CRAFT, Appellant, v. FREEPORT OIL COMPANY, a Division of Freeport Minerals Company, Appellee.
    No. 8866.
    Court of Civil Appeals of Texas, Amarillo.
    March 13, 1978.

      Lynch, Chappell, Allday & Aldridge, Randall Lundy and Tom C. McCall, Midland, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Rodney W. Satterwhite, Richard E. Booth, Midland, for appellee.
   REYNOLDS, Justice.

Gayle Craft, owner of the surface of a tract of Yoakum County land covered by an oil, gas and mineral lease owned by Free-port Oil Company, a division of Freeport Minerals Company, appeals from an order granting a temporary injunction restraining him from interfering with Freeport’s right of ingress and egress and operations on the land. We affirm.

Freeport’s lease covers the W/2 of Section 649, Block D, John H. Gibson Survey, Yoakum County, Texas. Craft owns the surface of the portion of the NW/4 of that section lying north of Staté Highway No. 337 (formerly F. M. Road No. 1077). Alleging Craft’s interference with its operations under its lease, Freeport initiated this action for a permanent injunction, preliminarily seeking and obtaining a temporary restraining order and the temporary injunction.

The temporary injunction issued upon findings that Freeport had a probable right to injunctive relief and would suffer immediate and irreparable injury unless the temporary injunctive relief was granted. Craft charges the trial court with an abuse of discretion in granting the temporary injunction, asserting that Freeport failed to demonstrate either a right to injunctive relief or an irreparable injury in the absence of the injunction.

The ultimate question of whether the court clearly abused its discretion is answered by the state of the evidence. There is no abuse of discretion if Freeport presented evidence tending to prove a probable right to a permanent injunction on a final hearing and a probable injury in the interim. Oil Field Haulers Association, Inc. v. Railroad Commission of Texas, 381 S.W.2d 183, 191-92 (Tex.1964).

Freeport documented, and Craft does not challenge, its oil, gas and mineral lease. Freeport contracted with a driller to go upon the land whose surface was owned by Craft and engage in a secondary recovery program. Charles H. Jeanfrau, Freeport’s land manager, testified that Craft refused entry onto the land, saying, “[N]o, you will just have to get your Temporary Restraining order, because I am not going to let you move in.” After the temporary restraining order was issued, Craft would not permit entry until he had been served.

A grant of minerals carries with it, as a necessary appurtenance thereto, the right to use so much of the surface as may be necessary to enforce and enjoy the mineral estate; otherwise, the mineral estate would be wholly worthless if grantee could not enter upon the land in order to explore for and extract the minerals granted. Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302, 305 (1943). The lease evinces Freeport’s right to go upon the land to perform its operations without interference from Craft, Garcia v. Sun Oil Company, 300 S.W.2d 724, 736 (Tex.Civ.App.-Beaumont 1957, writ ref’d n. r. e.), and the right will be protected by injunction. Stanolind Oil & Gas Co. v. Wimberly, 181 S.W.2d 942, 944 (Tex.Civ.App.-El Paso 1944, no writ).

Additionally, there is testimony that time was critical to Freeport’s operations. Jean-frau assumed that Craft could have responded in damages for the day rate of approximately $1,800 Freeport was contractually obligated to pay its driller for downtime; but, he further testified that Free-port incurred a penalty if the drilling contract were cancelled and that, because the pressure was declining, the longer the wait to commence operations, the less recovery, the measurement of which Jeanfrau did not know.

An injury which cannot be measured by any certain pecuniary standard may be prevented by injunctive relief. 6 L. Lowe, Remedies § 114, at 159 (2d ed. 1973). Moreover, serious interference with the free exercise of the unchallenged right to the use of one’s property destroys, to the extent of the interference, the property itself. Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex.Civ.App.- Dallas 1925, no writ). And conduct which results in the destruction of property causes an irreparable injury which justifies interlocutory in-junctive relief. Speedman Oil Co. v. Duval County Ranch Co., Inc., 504 S.W.2d 923, 929 (Tex.Civ.App.-San Antonio 1973, writ ref’d n. r. e.). Cf. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389, 398 (1950), where conduct causing the immediate destruction of minerals was held to constitute an irreparable injury and was quickly enjoined.

The order granting the temporary injunction may be reversed only if the trial court clearly abused its discretion. Sun Oil Company v. Whitaker, 424 S.W .2d 216, 218 (Tex.1968). Because the trial court was entitled to credit the evidence tending to prove a probable right to a permanent injunction on a final hearing and a probable injury in the interim, there was no clear abuse of discretion in granting the temporary injunction. Accordingly, all of Craft’s points of error are overruled.

The judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    Agnes THIGPEN, Appellant, v. George R. THIGPEN et al., Appellees.
    No. 15895.
    Court of Civil Appeals of Texas, San Antonio.
    March 15, 1978.
    Rehearing Denied April 12, 1978.

      James H. Pearl, Casseb, Leon, Rodgers, Strong & Pearl, San Antonio, for appellant.
    Joseph Y. Stateson, San Antonio, for ap-pellees.
   KLINGEMAN, Justice.

This is a suit on a promissory note by Agnes Thigpen against the independent executors of the estate of Conley M. Thigpen, deceased. The parties will be herein referred to as they were in the trial court. Defendants filed an answer in which they asserted: (1) the statute of limitations bars the action; (2) there was no consideration given for the note in question; (3) a general denial. Trial was to the court without a jury and the trial court entered a judgment that plaintiff take nothing.

The trial court made findings of fact which may be summarized as follows: (a) Conley M. Thigpen died on November 20, 1976, and George R. Thigpen and Perry Metheny qualified as joint independent executors of the estate on December 29, 1976; (b) the deceased, Conley M. Thigpen, signed a note admitted into evidence as Movant’s Exhibit No. 1; (c) such note is dated October 29, 1952, is in the principal sum of $2,500.00, and is a printed form of note; (d) in addition to the printed clauses, the following words were added in a separate paragraph: “THIS NOTE PAYABLE AT CONVENIENCE, DUE ON DEMAND FROM ESTATE AT DEATH OF CONLEY M. THIGPEN. THIS NOTE NULL AND VOID AT DEATH OF AGNES THIG-PEN.”; (e) proof was offered as to the maker’s signature on the note; however, the court did not hear sufficient independent evidence to establish consideration upon the part of Agnes Thigpen. Due to such lack of evidence and because of the additional words added to the note, “. . . PAYABLE AT CONVENIENCE, DUE ON DEMAND FROM ESTATE AT DEATH OF CONLEY M. THIG-PEN. THIS NOTE NULL AND VOID AT DEATH OF AGNES THIGPEN,” the note lacked mutual consideration.

The court, in its conclusions of law, concluded that there was insufficient evidence to establish and prove that the note was in fact an enforceable note with consideration which could be honored as such, that would create an obligation against the estate of Conley M. Thigpen approximately 25 years after the making of said note.

Plaintiff is the divorced wife of Conley M. Thigpen. Mr. Thigpen died on November 20, 1976 and suit was filed on the note on March 2, 1977. Plaintiff’s petition recited due demand for payment of the note and that a proper claim was filed in the probate court with the executors, which claim was neither approved nor rejected. Plaintiff sought recovery in the amount of the debt, which is alleged to be $10,223.50, and attorney’s fees in at least the amount of $1,022.35.

The note is in the principal sum of $2,500.00 and is in a printed form of an installment note, with all payment dates left blank. The note contains a provision for payment of interest, but the applicable blanks, including the rate of interest and date of payment, are all left blank. The note contains the usual and customary provision with regard to default and acceleration of maturity; provides for reasonable attorney’s fees; and is payable in San Antonio, Bexar County, Texas. In this printed form has been added this additional writing, “THIS NOTE PAYABLE AT CONVENIENCE, DUE ON DEMAND FROM ESTATE AT DEATH OF CONLEY M. THIG-PEN. THIS NOTE NULL AND VOID AT DEATH OF AGNES THIGPEN.” The note is signed by Conley M. Thigpen.

By a number of points of error, plaintiff urges that the trial court erred in holding that (a) the note was unenforceable because of lack of consideration; (b) there was not sufficient independent evidence to establish consideration for the note; (c) the burden of proof of consideration was on plaintiff; (d) the note was rendered unenforceable by the passage of 25 years from the date of making of the note. Plaintiff also urges that the trial court erred (a) in excluding certain testimony of Agnes Thigpen as to consideration; and (b) in granting a take nothing judgment against plaintiff because under the evidence the plaintiff was entitled to a judgment in the amount of $2,500.00 principal, interest in the amount of $7,925.98, and attorney’s fees.

We will first consider plaintiff’s point of error pertaining to want of consideration. During the trial defendants moved that it was plaintiff’s burden to prove consideration for the note, and the court granted such motion and held that the burden of proving consideration was on plaintiff. Plaintiff contends that this holding is error. She asserts that she made out a prima facie case by introducing the note in question, which contained a recitation, “FOR VALUE RECEIVED,” and by proof: (a) that she was the holder of the note; (b) that Conley M. Thigpen owed the note; (c) that the note was due and payable; (d) that demand for payment had been made, and (e) that the note had not been paid.

Our Supreme Court, in Winters v. Langdeau, 360 S.W.2d 515 (Tex.1962), said:

Of course the burden of proving failure of consideration is upon the pleader. Vol. 1 McCormick & Ray, on Evidence, § 113; Tolbert v. McBride, 75 Tex. 95, 12 S.W. 752; Newton v. Newton, 77 Tex. 508, 14 S.W. 157; Kothmann v. Southwestern Co., Tex.Civ.App., 1935, 92 S.W.2d 272.

The rule is set forth in Lemon v. Walker, 482 S.W.2d 713 (Tex.Civ.App.-Amarillo 1927, no writ), thusly:

Appellee introduced in evidence the note sued upon, which recited that it was given ‘for value received,’ and testified that the note was due and unpaid, thereby establishing a prima facie entitlement to judgment, unless recovery could be defeated by proof of want or failure of consideration. Appellant’s sworn denial of consideration read to the jury did not shift the burden of proof from him, but merely put the matter in issue upon which he had the burden of proof. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67 (1933).

In 2 McDonald, Texas Civil Practice § 7.35 (1970), it is said:

When the plaintiff’s claim is founded upon a written contract, defendant must plead under oath that such instrument ‘is without consideration, or that the consideration of the same has failed in whole or in part.’ The written contract imports consideration, and even after a sworn plea the plaintiff may offer the instrument in evidence to show prima facie his right. The burden is on the defendant to show the alleged lack or failure of consideration. The sworn plea, therefore, merely opens the way for evidence to be offered by the defendant, rather than imposing upon the plaintiff an additional burden.

See also Decor Dimensionals, Inc. v. Smith, 494 S.W.2d 266 (Tex.Civ.App.-Dallas 1973, no writ); Preston v. Williams, 427 S.W.2d 157 (Tex.Civ.App.-Eastland 1968, no writ); Lewis v. Ada Employees Credit Union, 383 S.W.2d 864 (Tex.Civ.App.-Houston 1964, writ ref’d n. r. e.); Chastain v. Texas Christian Missionary Soc., 78 S.W.2d 728 (Tex.Civ.App.-El Paso 1935, writ ref’d); Shaw v. McShane, 50 S.W.2d 278 (Tex.Comm.App. 1932, opinion adopted); Newton v. Newton, 77 Tex. 508, 14 S.W. 157, 158 (1890).

It is clear from an examination of the entire record that the defendants wholly failed to prove a lack of consideration. After the note had been introduced into evidence, plaintiff identified Conley M. Thig-pen’s signature thereon and testified that the note was due and payable; that no payments had been made; that she made a demand for payment; and that she timely filed the claim in the probate court. She further testified as to the amounts due on such note. The only other testimony in this regard was by one of the independent executors, who testified that the note was presented to him for payment but that the payment was refused; that he felt a moral obligation to pay the note because he recognized the signature on the note as that of his brother, Conley; that he knew of no obligations of Conley’s to Agnes which could be evidenced by the note, but that as far as he knew, the recitation “FOR VALUE RECEIVED,” is correct.

It is apparent that the defendants and the court relied on the erroneous assumption that the burden to prove consideration was on plaintiff, and the court so held. The trial court erred in holding (a) that the burden of proof was on plaintiff to prove consideration; and (b) that there was not sufficient proof of consideration under the record.

The only other basis upon which the judgment might be upheld is the plea of limitations. While the court made no direct holding with regard to limitations, the court stated in its conclusions of law that there was insufficient evidence to establish and prove that the alleged note was in fact an enforceable note with consideration which could be honored as such, which would create an obligation against the estate approximately 25 years after a making of such note. This conclusion seems to be predicated on lack of consideration and we know of no rule of law that the mere fact that a note is 25 years old makes it an unenforceable note. The applicable statute of limitations, Art. 5527, Tex.Rev.Civ.Stat.Ann. (1958), provides that an action for debt, where the indebtedness is evidenced by or founded upon a contract of writing, shall be commenced and prosecuted within four years after the cause of action shall have accrued.

Art. 3.122, Tex.Bus. & Comm.Code Ann. (1968), provides that a cause of action against a maker accrues (a) in the case of a time instrument, on the day after maturity; and (b) in the case of a demand instrument, upon its date, or if no date is stated, on the date of issue.

Plaintiff here contends that the note in question is not a demand note and defendants agree. Defendants, however, assert that since plaintiff seeks to collect interest on the note from its date, and since no interest was ever paid on the note, limitation began to run on the failure of the maker to pay interest one year after the date of the note. We do not agree with this contention.

The herein note was due on demand from the estate at the death of the maker. It did not mature, and was not payable until this event happened and the statute of limitations did not begin to run until that date. The herein suit was brought shortly after the death of Conley M. Thigpen and well within four years.

Our Supreme Court, in Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894 (1924), said:

It is quite elementary that an instrument payable upon a condition which does not import an absolute liability is not payable until that condition has happened. [Citations omitted.]

Washington v. Martin, 503 S.W.2d 330 (Tex.Civ.App.—Amarillo 1973, no writ), was a suit where the note in question was a demand instrument on its face, but there was evidence of an intent by the parties that the note was not effective until the death of the makers. The court said:

If entitled to consideration, the evidence establishes that the parties did not intend the note to have any effect until the occurrence of the deaths of both R. M. Martin and Myrtle Martin. Where a condition precedent to a right of action on a note exists, the cause of action does not accrue and the statute of limitations does not begin to operate until the condition is performed. Dunn v. Reliance Life & Accident Ins. Co. of America, 405 S.W.2d 389 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.).

While we do not construe the court’s conclusion of law as a holding that the suit was barred by limitations, if the court so held, its holding was in error.

Because of the errors hereinbefore discussed, this case must be reversed.

It is clear under the record that plaintiff is entitled to a rendition of the amount of principal. She is also entitled to a rendition of whatever interest which may be due, but a more difficult question is as to the amount. Plaintiff asserts primarily that she is entitled to interest from the date of the note, citing in support of this contention, the cases of Stahl Petroleum Corp. v. Phillips Petroleum Co., 550 S.W.2d 360 (Tex.Civ.App.—Amarillo 1977, no writ) and Orbeck v. Alfei, 276 S.W. 947 (Tex.Civ.App.-Waco 1925, no writ). We do not consider these cases as controlling. As a general rule, unless otherwise contracted, interest is payable upon a debt when the debt upon which it accrues becomes due, and cannot be collected and does not begin to run before such maturity. Charles Netherson Co. v. Oklahoma Waste Material Co., 258 S.W.2d 369 (Tex.Civ.App.—Eastland 1953, no writ); Hurley v. Knox, 244 S.W.2d 557 (Tex.Civ.App.—Fort Worth 1951, writ ref’d n. r. e.); Parsons v. Parsons, 284 S.W. 933 (Tex.Comm.App.1926, opinion adopted); Trevathan v. Hall & Son, 209 S.W. 447 (Tex.Civ.App.—San Antonio 1919, no writ); Askew v. Bruner, 205 S.W. 152 (Tex.Civ.App.—Amarillo 1918, no writ). There are some exceptions to this rule, but such exceptions are not here applicable.

It is to be remembered the note does not set forth the rate of interest. Plaintiff relies on Art. 5069-1.03, Tex.Rev.Civ.Stat. Ann. (1971), which reads:

When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; .

By the very terms of this article, interest is allowed on the principal only after the principal is due and payable.

We have held that the herein note was payable on demand upon the death of Conley M. Thigpen. Conley M. Thigpen died on November 20,1976, and demand for payment was made on January 7, 1977. Under the record, plaintiff is entitled to recover principal in the sum of $2,500.00, and interest on said sum from January 7, 1977 to the date of judgment. That portion of the judgment denying plaintiff any recovery for principal and interest on the note is reversed, and judgment is here rendered that plaintiff recover from defendants the amount above set forth.

Under the record, plaintiff is also entitled to. attorney’s fees. The note involved provides that in the event of the maturity of the note from any cause, and default is made in the payment thereof, or if suit is brought or same is collected through the probate court or bankruptcy courts, then, in that event, the maker shall pay reasonable attorney’s fees in addition to principal and interest due thereon. All parties agree that the amount and reasonableness of the attorney’s fees have not been fully developed. Under authority of Rule 434, Tex.R.Civ.P. (1978), the issue of attorney’s fees is severed and reversed and remanded to the trial court for determination of the amount of attorney’s fees.


author: JAMES, Justice.

text:
    TEACHER RETIREMENT SYSTEM OF TEXAS, Appellant, v. Frankie Joanne NEILL, Appellee.
    No. 5887.
    Court of Civil Appeals of Texas, Waco.
    March 16, 1978.
    Rehearing Denied April 6, 1978.

      John L. Hill, Atty. Gen., Harry C. Green, John Reeves, Asst. Attys. Gen., Austin, for appellant.
    Robert J. Wilson, Burleson, for appellee.
   OPINION

JAMES, Justice.

This is a case concerning funds in a member savings account under the Teacher Retirement System of Texas.

Plain tiff-Appellee Frankie Joanne Neill (the former wife of James E. Neill) brought this suit against the Teacher Retirement System of Texas (hereinafter called “the System”), asking for recovery of funds held by the System on deposit in a member savings account in the name of James E. Neill. The trial court after nonjury trial awarded to Mrs. Neill such funds in the amount of $2268.35 plus accrued interest, and gave her judgment for same against the System, from which judgment the System appeals. We affirm.

The facts are virtually undisputed. James E. Neill was a member of the Teacher Retirement System of Texas, but terminated his employment with the System on May 31, 1976. On June 11, 1976, pursuant to the provisions of Section 3.52(b) of the Teacher Retirement Act, Mr. Neill made application in writing for all accumulated contributions in his individual account in the Member’s Savings Account of the System. Pursuant to his application, a refund warrant in the amount of $2268.35 was mailed to him by the System, however, this warrant was returned to the System by the postal officials marked, “moved, left no address.” The sum of $2268.35 plus accrued interest remains on deposit with the Defendant-Appellant System in the member savings account of James E. Neill.

On October 13, 1976, Frankie Joanne Neill and James E. Neill were divorced by a judgment of a District Court of Johnson County, Texas, in which judgment Frankie Joanne Neill was awarded in full all monies held in the account of James E. Neill by the System. The System was not a party to this divorce action.

James E. Neill has not withdrawn any money from funds held in account by the System nor has he made any application for retirement, although he did make application for the refund of his accumulated contributions on June 11,1976, as above stated.

Prior to trial, the System filed a plea to the jurisdiction based upon the asserted reason that Plaintiff-Appellee Mrs. Neill had not obtained legislative permission prior to bringing her suit against the System, an agency of the State of Texas. The trial court overruled this plea to the jurisdiction for which the Appellant System asserts its first point of error. We overrule this point of error.

We agree with the Appellant that it is well-settled that a party cannot recover a judgment which will operate to control State action, or to subject the State to liability, or which would affect the State’s property rights and interests. Walsh v. University of Texas (El Paso CA 1942) 169 S.W.2d 993, writ refused; Texas Technological College v. Fry (Amarillo CA 1954) 278 S.W.2d 480, no writ. Also see Haden v. Dodgen (Tex.1958) 158 Tex. 74, 308 S.W.2d 838; State v. Isbell (Comm.App.1936) 127 Tex. 399, 94 S.W.2d 423, opinion adopted; Hosner v. De Young (Tex.1846) 1 Tex. 764.

In our opinion, the case at bar is not one wherein the judgment will operate to control State action, or to subject the State to liability, or to affect the State’s property rights. Prior to the Neills’ divorce judgment, this money was owned by James E. Neill (as opposed to the State of Texas), and was on deposit with the System as trustee in his name in his individual member savings account. This money represented accumulations of his contributions from his salary while a member of the Teacher Retirement System. By virtue of the divorce judgment hereinabove referred to, Mrs. Neill was awarded this money standing on deposit in the name of Mr. _ Neill, and thereafter she was the sole owner of said money. Here the State is not subjected to liability, nor are the State’s property rights affected. We therefore hold that Mrs. Neill was not required to obtain legislative consent to bring the suit in question. Appellant’s first point is overruled.

Appellant’s second point of error contends the trial court lacked jurisdiction for the further reason that Appellee Mrs. Neill had not first exhausted her administrative remedies pursuant to the provisions of Article 6252-13a, Vernon’s Civil Statutes. We overrule this contention.

We are unable to see how Mrs. Neill was required to apply for administrative relief. She was not a member of the Teacher Retirement System (see Section 3.02(a)(8), Texas Education Code), nor was this case one calling for an administrative ruling or decision. Mr. Neill had withdrawn as a member of the System, Section 3.04(a)(2) Texas Education Code, and had applied to withdraw his accumulated contributions. Under Section 3.52(b), Texas Education Code, where he had ceased to be a member of the system other than by death or retirement, it is provided that he shall be paid “all accumulated contributions in his individual account in the member savings account; his account shall be closed, and his membership (if not previously ended) shall be terminated.”

Mrs. Neill’s ownership of this money was established in the divorce judgment. The Teacher Retirement System certainly had no right or jurisdiction to set aside by administrative ruling the judgment of a district court. In short, Mrs. Neill had no administrative remedy to pursue. Appellant’s second point of error is overruled.

Appellant’s third point of error asserts the trial court’s judgment violates the provisions of Article 16, Section 67, of the Texas Constitution. We do not agree.

Article 16, Section 67(a)(1) provides:

“The legislature may enact general laws establishing systems and programs of retirement and related disability and death benefits for public employees and officers. Financing of benefits must be based on sound actuarial principles. The assets of a system are held in trust for the benefit of members and may not be diverted.”

Appellant is contending, as we understand it, that the trial court’s judgment constitutes a “diverting” of the funds in question, and thereby runs afoul of the State Constitution. We do not agree. Before the Neill divorce judgment, the System was holding the funds in trust for the benefit of James E. Neill. After the divorce judgment, the System was holding the funds in trust for Plaintiff-Appellee Mrs. Neill. In our opinion there has been no “diverting” of the funds within the meaning of this constitutional provision.

Appellant has other points and contentions, all of which we have carefully considered, and have overruled all of same as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: WALTER, Justice.

text:
    Harold BURRIS, Appellant, v. Eva KROOSS, Appellee.
    No. 5099.
    Court of Civil Appeals of Texas, Eastland.
    March 16, 1978.

      James D. Coffee, San Antonio, for appellant.
    Joseph R. Krier, Groce, Locke & Hebdon, San Antonio, for appellee.
   WALTER, Justice.

Harold Burris filed suit against Eva Krooss seeking damages for the cutting of certain shade trees on his property. Burris alleged Krooss negligently failed to ascertain the location of the boundary line dividing her property from Burris’ property. After the jury’s verdict favoring Burris, the court granted Krooss’ motion for judgment non obstante veredicto and Burris has appealed. We reverse and render.

In October, 1975, John Lerette asked Krooss for permission to cut down some trees on her property. Lerette planned to sell the trees as firewood. Krooss authorized Lerette to cut down “a load or two” of trees. The property was heavily wooded and there was no evidence of a fence or other landmarks indicating where the boundary line was other than the surveyor’s “cuts” and “marks”. Lerette’s brother, Henry Lerette, drove Lerette and Krooss’ minor daughter to the property where the daughter showed Lerette the boundary stakes. Krooss did not accompany Lerette to the property.

In answer to Special Issues, the jury found: (1) trees were cut from Burris’ property on or about October 18, 1975; (2) the trees were cut by an employee of Krooss; (3) Krooss failed to ascertain the location of the property line dividing the property owned by Burris and Krooss for said employee; (4) such failure on the part of Krooss was negligence; (5) such negligence was a proximate cause of the occurrence in question; (6) the market value of Burris’ property immediately before the occurrence was $4,000; and, (7) the market value of Burris’ property immediately after the occurrence was $1,000.

Burris contends Krooss had a duty to ascertain the location of the dividing property line; there was some evidence Krooss failed to ascertain the location of the dividing property line; and, there was some evidence that the negligent failure to ascertain the location of the dividing property line was a proximate cause of the occurrence in question. We agree.

A landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care. A failure to discharge this duty may subject the landowner to damages, resulting from such failure. Kirby Lumber Corporation v. Karpel, 233 F.2d 373 (5th Cir. 1956); Ripy v. Less, 55 Tex.Civ.App. 492, 118 S.W. 1084 (1909, no writ). When Krooss authorized Lerette to cut trees on her property, she assumed the duty to ascertain for Lerette the boundary lines of her property with diligence and care.

In considering Burris’ evidential points of error, we must apply the following rule stated in Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974):

“ . . .To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor ...”

Henry Lerette testified Krooss did not go to the property with him and his brother. He stated Krooss’ daughter went with them and pointed out the boundary stakes to his brother.

Krooss testified as follows:

“Q Roughly. Approximately, where did you authorize Mr. Lerette to cut down trees?
A On my property.
Q All right, did you give him specific instructions as to where?
A Well, the property, you know, more or less, in the front, the property towards the street, towards Loma View. Simply for the reason the rest of the property is very brushy, a very brushy area.
Q Okay. Did you have any opportunity to supervise him?
A No, sir.
Q Did you — you just gave him kind of a Carte Blanche authority?
A No, sir. I did send my daughter out to the lot with him to show him where the lot is.
Q Did you notice after you gave him authority to take these particular trees off, or whatever, type of authority you gave him, did you notice, subsequent to that, where he took the trees off?
A Not immediately, no.
Q You didn’t—in other words, you didn’t go out and immediately see that he was to take the trees only off of one particular area?
A Right. No, I did not.
Q When did you discover or did you ever check to see?
A I didn’t go out there, no not after the, you know, after he was out there to cut wood.”

The testimony by Krooss and Henry Lerette is some evidence of probative force that Krooss failed to discharge her duty with diligence and care. The jury could properly conclude from the evidence that a person of ordinary prudence in the exercise of ordinary care could have reasonably foreseen the probable consequence of failing to ascertain the location of the boundary line. The issue on proximate cause is, therefore, supported by some evidence.

Burris also contends the proper measure of damages is the difference between the fair market value of the land before and after the occurrence in question, and there is some evidence to support the jury’s findings on damages. We agree.

The proper measure of damages for fallen trees was explained in Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956):

“The rule generally is, we think, as stated in Grell v. Lumsden, 206 Iowa 166, 220 N.W. 123, 125:
‘ * * * If the thing destroyed or removed from real property, although a part thereof, has a value which can be accurately measured or ascertained without reference to the soil on which it stands, the recovery is the value of the thing thus destroyed or removed, and not the difference in the value of the land. * * *.’
On the other hand if the trees have only a value with reference to the land such as for the purpose of shade or ornamentation or if they be fruit trees or young growth which has no market value, then the proper measure of damage would be the difference in the value of the land before and after . . . ”

In Cummer-Graham Co., a timber deed to soft wood timber was conveyed to Cummer-Graham Co. who subsequently cut certain elm and gum timber not included in the timber deed. The Supreme Court held the proper measure of damages to be the stumpage value of the timber. The court recognized that under some circumstances a landowner’s damages in a tree-cutting case would be measured by depreciation in market value of the land.

In Hamilton v. Fant, 422 S.W.2d 495 (Tex.Civ.App.—Austin 1967, no writ), plaintiffs owned lakefront property on which defendants’ employees had cut certain cedar trees. Defendants were found negligent in failing to instruct the cedar cutters as to the location of the boundary lines. The court stated:

“ . . . While it may be presumed the cedars cut down had some timber or detached value, to hold appellees’ recovery to this value, and deny recovery for the real and substantial injury to the land for its highest and best use, would be to refuse reimbursement to the extent of the injury to the property . . . ”

The court held the proper measure of damages to be the diminution in the fair market value of the land.

Burris was attracted to the property adjoining Krooss’ property because of the “nice view” and “beautiful trees”. Burris and his wife often visited the lot and planned to build a home there which would “complement” the rocks and trees. As in Hamilton, the trees only had an ornamental value. Burris would be denied recovery for the real and substantial injury to the land if the detached value of the trees applied. The trial court properly determined the measure of damages to be the depreciation in the fair market value of the land.

The jury found the fair market value of Burris’ property to be $4,000 before the trees were cut and $1,000 after the trees were cut. Burris contends there is some evidence to support these findings.

William H. Kemble, the realtor who handled the sale of the property to Burris, testified Burris bought the lot in 1974. Burris testified as follows:

“Q What did you pay for it?
A In the four thousand dollar — forty some odd—
Q Plus interest?
A Oh, yes.”

Evidence of the purchase price of real and personal property has been held to be some evidence of value. In Houston & T. C. R. Co. v. Westbury, 208 S.W. 383 (Tex.Civ.App.-Texarkana 1919, no writ), the court stated:

“ . . . The evidence of market value is derived from the observation of sales made in the due course of trade. One sale furnishes some evidence, and where there is no proof to the contrary it is not improper to assume that a sale proven without objection is one which occurred in the normal and usual course of business and at the prevailing market price. We are therefore of the opinion that under the circumstances the court had a right to conclude that the goods were sold at their market value . . . ”

The Texarkana Court of Civil Appeals later stated in American Indemnity Co. v. Jamison, 42 S.W.2d 801 (Tex.Civ.App.-Texarkana 1931, no writ):

“ . . . Though the price paid by the appellee was not conclusive of the market value, yet was some evidence of that value at the place where the purchase was made, and might be taken into account with other evidence . . . ”

In First National Bank of Rockport v. Brown, 15 S.W.2d 563 (Tex.Comm’n App.1929), Commissioner Nickels stated, “If it were true, then, that ‘price’ is not of itself ‘value’, the circumstances of agreement on ‘price’ nevertheless is (at least) some evidence of ‘value’ . . . ”

The fact that Burris purchased the lot for $4,000 one year before the property was damaged does not conclusively establish the fair market value at the time of the injury, but it is some evidence of such value. The jury’s finding of $4,000 is, therefore, supported by some evidence.

The jury’s finding of $1,000 is supported by Burris’ testimony of the purchase price and the testimony of Kemble, which is as follows:

“Q Okay. Are you familiar with a subdivision called Northwood Hills Subdivision?
A Yes.
Q Okay. Approximately, how many transactions have you handled out there?
A About forty-five or fifty.
Q Forty-five or fifty. Are you familiar with the fair market value?
A Yes, sir.
Q Okay. Are you familiar with the lot in controversy here, which purports to be Lot 204, County Block 4919-A, Northwood Hills Subdivision, owned by Mr. Harold Burris?
A Yes.
Q Observing the property as you knew it when it — the condition it was in when it was sold, and observing the property now with the trees that you say have been chopped down, do you have an opinion as to whether there is an increase or decrease, in light of the fact that those trees are gone, as to the value of the property?
A I would say the removal of any trees on a residential property like that would tend to decrease the property value.
Q Okay. As to this particular piece of property, do you have an opinion as to what the value, increase or decrease would be, as to the removal of the trees that you saw, personally observed?
A I would say—
Q Would you tell me that value as to this particular piece of property?
A I would estimate it to be, approximately, two to three thousand dollars.”

In a cross-point, Krooss contends the jury’s finding that the trees were cut by her employee should be disregarded because there is no competent evidence and no issue submitted on whether the employee was acting in the course and scope of his employment at the time the negligent act was committed. This cause was submitted to the jury on the theory that Krooss negligently failed to ascertain the boundary line dividing her property from Burris’ property; it was not submitted on the theory that Krooss’ employee committed a negligent act. The issue whether the trees were cut by an employee of Krooss and consequently whether said employee was acting in the course and scope of his employment is immaterial. Kirby Lumber Corporation v. Karpel, 233 F.2d 373 (5th Cir. 1956); Hamilton v. Fant, 422 S.W.2d 495 (Tex.Civ.App.—Austin 1967, no writ).

We have carefully reviewed Krooss’ cross-points and find no merit in them. They are overruled.

Judgment of the trial court is reversed and remanded in favor of Burris for $3,000.


text:
    Mrs. Jessie JAY, a widow, Appellant, v. L. E. DEVERS et al., Appellees.
    No. 5129.
    Court of Civil Appeals of Texas, Eastland.
    March 16, 1978.
    Rehearing Denied April 13, 1978.

      John F. Boyle, Jr., Hutchinson, Price & Boyle, Dallas, for appellant.
    C. David Fielder, Perdue, Brandon, Blair, Shiever, & Fielder, Fort Worth, for appel-lees.
   WALTER, Justice.

Mrs. Jessie Jay sued L. E. Devers, Tax Assessor-Collector for the Duncanville Independent School District, and the Duncan-ville Independent School District to recover payment of her 1974 ad valorem taxes. The case was submitted to the court without a jury on agreed facts pursuant to Rule 263, T.R.C.P. The trial court ordered Jay take nothing. Jay has appealed. We affirm.

Jay contended her 1974 ad valorem taxes were an overpayment resulting from Dev-ers’ failure to assess her property under Tex.Const. art. VIII, § 1-d, which, in general, establishes a standard of assessment, other than fair market value, for land designated for agricultural use. Taxes were assessed at $23,112.72. On January 31, 1975, Jay tendered the full amount by check with a notation on the check “paid under protest”. By agreement, Devers was to hold the check for 30 days. On February 28, 1975, Jay’s attorney instructed Devers to deposit the check. Devers did so and issued tax receipts on the same day. The check cleared Jay’s bank on March 3, 1975.

By an unsworn application dated December 31,1974, Jay sought to have her property assessed pursuant to Tex.Const. art. VIII, § 1-d. Devers denied this application on January 6,1975. Jay filed a subsequent application on February 27, 1975, which Devers denied on March 20, 1975.

Jay alleges the evidence conclusively establishes that she paid her taxes involuntarily under duress and compulsion. Alternatively, Jay argues the trial court’s finding that her taxes were paid voluntarily is against the great weight and preponderance of the evidence. We do not agree.

Jay further argues the payment of the ad valorem taxes by check with words “paid under protest”, written on the face of the check to avoid risk of penalty and interest, conclusively establishes payment was made involuntarily. Additionally, Jay urges the trial court’s finding that such manner of payment was voluntarily made is against the great weight and preponderance of the evidence. We do not agree with this argument. We note that the agreed statement of facts filed pursuant to Rule 263, T.R.C.P., does not include an agreed statement that payment was made to avoid the risk of incurring statutory penalty and interest. Under Rule 263, the trial court and reviewing court are limited to the agreed facts and cannot make any findings of fact not conforming to the agreed facts. Shoppers World, Inc. v. State, 373 S.W.2d 374 (Tex.Civ.App.—San Antonio 1963), aff’d, State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964); Parsons v. Watley, 492 S.W.2d 61 (Tex.Civ.App.—Eastland 1973, no writ).

The issue of whether taxes were paid voluntarily or involuntarily is a question of fact to be determined by the trier of the facts. Rainey v. City of Tyler, 213 S.W.2d 57 (Tex.Civ.App.—Texarkana 1948, writ ref. n.r.e.); Slaughter v. Sundown Independent School District, 41 S.W.2d 478 (Tex.Civ.App.—Amarillo 1931, writ dism’d).

It is well recognized in Texas that there is no claim for recovery of taxes paid voluntarily and a mere showing that ad valorem taxes were paid “under protest” will not support the taxpayer’s claim for recovery. Howell v. City of Dallas, 549 S.W.2d 36 (Tex.Civ.App.—Waco 1977, writ ref. n.r.e.); National Biscuit Co. v. State, 134 Tex. 293,135 S.W.2d 687 (1940); Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (1934).

The trial court found Jay had “voluntarily” paid her 1974 ad valorem taxes and denied Jay’s suit to recover the alleged overpayment. We have carefully examined the record and find the evidence does not conclusively establish that Jay paid her ad valorem taxes involuntarily. After reviewing and weighing all the evidence in the case, we hold the trial court’s findings not to be so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Furthermore, we hold that Jay’s “unsworn” application filed on December 31, 1974, was not timely filed. Gragg v. Cayuga Independent School District, 539 S.W.2d 861 (Tex.1976); Tex.Att’y Gen.Op. No. H-988 (1977).

We have carefully considered all of Jay’s points of error and find no merit in them. They are overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    Keith D. LEMONS, Appellant, v. Oscar WYLIE, Appellee, v. Jimmy F. DAVIS, Intervenor.
    No. 8943.
    Court of Civil Appeals of Texas, Amarillo.
    March 22, 1978.
    Intervenor’s and Appellee’s Rehearing Denied April 10, 1978.
    Ochsner & Baughman, Frank J. Baugh-man, Amarillo, for appellant.
    Moran & Miller, Jack R. Miller, Dimmitt, for appellee.
    Brown & Harding, Clifford W. Brown and Ralph H. Brock, Lubbock, for interve-nor.
   PER CURIAM.

Plaintiff Keith D. Lemons brought suit under Tex.Election Code Ann. art. 1.07 (1967) against Oscar Wylie, Castro County Democratic Chairman, to enjoin Wylie from certifying and placing on the primary ballot the name of Jimmy F. Davis as a candidate for County Attorney. Plaintiff alleged that Davis was ineligible to be a candidate because he did not meet the residence requirements under art. 1.05 of the Election Code. The trial court dismissed for lack of jurisdiction. Reversed and rendered.

Article 1.05 provides that no person shall be eligible to be a candidate in a general primary election for county office unless he has resided in the county for six months next preceding the last day for filing an application for a place on the ballot. It further provides that, in the absence of exceptions not pertinent here, no ineligible candidate shall ever have his name placed on the ballot at any primary election.

Article 1.07 provides that the district court shall have authority to issue writs of injunction at the suit of any interested party or of any voter to enforce the provisions of art. 1.05 and to protect the rights of all parties and the public. It provides that for such purpose jurisdiction and authority is conferred upon all district courts of this state and that all cases filed thereunder shall have first right of precedence upon trial and appeal.

The relevant facts in the case before us are established as a matter of law. On November 7, 1977, Jimmy F. Davis was appointed to fill a vacancy in the office of County Attorney of Castro County until the next general election. At the time of his appointment Davis was a resident of Lubbock County, Texas. No question regarding the propriety of the appointment is before us. Davis moved to Castro County as soon as the appointment was made. It is undisputed that at the time of the filing deadline for the general primary election he had not been a resident of Castro County for the six month period required to permit his name to be placed on the ballot. Nevertheless on February 6, 1978, Davis filed an application for a place on the primary ballot as a candidate for nomination to the office of County Attorney of Castro County. The application showed on its face that he had not been a resident of Castro County for six months. The County Democratic Chairman stated that he intends to present this application to the County Committee for certification.

Plaintiff Keith D. Lemons has also filed an application for a place on the ballot as a candidate for nomination to the office of County Attorney of Castro County. His right to a place on the ballot has not been contested. Lemons brought this suit under art. 1.07 against Oscar Wylie, Castro County Democratic Chairman, seeking to enjoin Wylie from certifying Jimmy F. Davis or placing the name of Jimmy F. Davis on the Democratic Primary Ballot for election to the unexpired term of County Attorney of Castro County, Texas. Jimmy F. Davis filed a plea in intervention. Plaintiff Lemons filed an amended petition moving to join Davis as a voluntary or an involuntary plaintiff. After hearing evidence the trial court granted the motion to join Jimmy F. Davis as involuntary plaintiff but finding that, since Jimmy F. Davis had declined to become a voluntary plaintiff, the court had no authority to order him to file suit in the matter. The court dismissed plaintiff’s suit for lack of jurisdiction.

On appeal defendant Wylie contends that the trial court was correct in refusing to take jurisdiction when the State did not prosecute the matter through its public officers. In this connection we note that Tex.Rev.Civ.Stat.Ann. art. 332b-2 (1977) provides that the County Attorney of Castro County shall represent the State of Texas in all matters pending before the district court in Castro County and the duties of the district attorney in Castro County are invested in the county attorney. Davis has declined to prosecute the suit to keep himself off the ballot. As intervenor, Davis asserts that plaintiff’s interest in seeing that an unqualified candidate is not on the ballot is not particular to him, but shared with the general public.

Our courts have held that, regardless of statutory language, a voter having no special interest cannot alone maintain suit in district court to enjoin the placing of the name of an ineligible candidate on the ballot. Such a provision would be unconstitutional. Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928); Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922). For the same reason a defeated candidate who cannot benefit personally from the suit does not have standing to enjoin the certification of a nominee on the basis of the nominee’s ineligibility. Sadler v. Newton, 541 S.W.2d 194 (Tex.Civ.App.-Austin 1976, mand. overr.); Allen v. Fisher, supra. This rationale does not apply to a candidate who has an interest in not being opposed by an ineligible candidate. That interest is separate and apart from that of the general public. See Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (Tex.1916); Adkins v. Rawls, 182 S.W.2d 509, 512 (Tex.Civ.App.-Waco 1944, no writ).

We conclude that plaintiff had standing to bring the injunction suit under art. 1.07 and that the trial court erred in dismissing the cause for lack of jurisdiction. We accordingly reverse the judgment of the trial court and here render judgment enjoining defendant from certifying Jimmy F. Davis and placing the name of Jimmy F. Davis on the Democratic Primary Ballot for election on May 6, 1978, for the unexpired term of County Attorney of Castro County, Texas. Tex.R.Civ.P. 434.


text:
    Russell HAYES, Relator, v. HARRIS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE et al., Respondents.
    No. 1860.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 22, 1978.
    Russell Hayes, pro se.
    David F. Webb, Leonard, Kohen, Rose, Webb & Hurt, Houston, for respondents.
   PER CURIAM.

This is a petition for writ of mandamus by which the relator, Russell Hayes, seeks to compel the respondents, the Harris County Democratic Executive Committee and its Chairman, George Q. Buch, to place Hayes’ name on the ballot for the Democratic primary election to be held in Harris County, Texas on May 6, 1978.

The relator filed an application for placement of his name on the ballot on February 3,1978. He was certified by the respondent Bueh to the County Clerk of Harris County, Texas on February 13, 1978 as a candidate whose application had been timely filed and accompanied by an appropriate filing fee. The relator subsequently learned that his name had been removed from the ballot for the reason that he is a convicted felon and is therefore an ineligible candidate for public office according to article 1.05 of the Texas Election Code. This court granted him leave to file a petition for writ of mandamus, by which he seeks to compel his reinstatement on the ballot, and arguments were heard thereon.

The relator correctly states the general rule that when an application appears regular on its face, election officials charged with certifying the applicant’s name for placement on the ballot have no authority to .inquire into facts outside the application. Parker v. Brown, 425 S.W.2d 379, 381 (Tex.Civ.App.-Tyler 1968, no writ). Where facts which would disqualify the applicant are conclusively established by public records, however, election officials may not ignore those facts. Garcia v. Carpenter, 525 S.W.2d 160, 161 (Tex.Sup.1975); McClelland v. Sharp, 430 S.W.2d 518, 522 (Tex.Civ.App.-Houston [14th Dist.], 1968, no writ); see Tex.Election Code Ann. art. 1.05, § 4 (Supp.1978).

The relator contends that his 1957 felony conviction is not final so as to disqualify him from running for public office because there is currently pending in federal court a collateral attack on that conviction. The relator’s argument that the present collateral attack tolls the finality of his conviction for election qualification purposes, however, is without merit. This matter has been previously litigated and decided adversely to the relator. Hayes v. Williams, 341 F.Supp. 182, 187-88 (S.D.Tex.1972).

Although we are of the general philosophy that the qualifications of a candidate for public office are better judged by the people through the election process than by members of a political committee, the relator is barred by the Texas Constitution and the Texas Election Code from holding public office.

The petition for writ of mandamus is therefore denied. No motion for rehearing will be entertained.


author: ODEN, Justice.

text:
    H. B. JONES, Elmer Lee Jones and Johnny J. Jones, Appellants, v. Betty CHAMBERLAIN and Juliette Fowler Home, Appellees.
    No. 8536.
    Court of Civil Appeals of Texas, Texarkana.
    March 28, 1978.

      Leighton R. Cornett, Cornett, Echols & Biard, Paris, for appellants.
    James Chapman, Sulphur Springs, for ap-pellees.
   ODEN, Justice.

On April 25, 1962, R. L. Lindley and his wife, Pearl Lindley, executed a joint will. In 1969, R. L. Lindley died and, on application by Pearl Lindley, the instrument was admitted to probate as the last will of R. L. Lindley. On June 3, 1975, Pearl Lindley executed a new will under the expressed terms of which all former wills executed by her were revoked. Pearl Lindley died on November 29, 1975. Appellants, H. B. Jones, Elmer Lee Jones and Johnny J. Jones, as beneficiaries, filed an application in the County Court of Hopkins County to probate the 1975 will. Betty Chamberlain filed an application in the County Court of Hopkins County to probate the 1962 will. Betty Chamberlain and Juliette Fowler Home were beneficiaries under the 1962 joint will. Each contested the other’s application. Betty Chamberlain and Juliette Fowler Home alleged that the 1975 will should not be admitted to probate because the 1962 joint will was mutual and contractual. H. B. Jones, Elmer Lee Jones and Johnny J. Jones denied the existence of a contract which resulted in the execution of the 1962 joint will and alleged that the 1962 will was revoked by the 1975 will. Both cases were transferred to the Hopkins County District Court and were therein consolidated for trial. The District Court admitted the 1962 will to probate as the last will of Pearl Lindley. Based on its finding that the 1962 joint will was mutual and contractual, the District Court refused to admit the 1975 will to probate as the last will of Pearl Lindley. The only point of error presented for our consideration is whether or not the District Court erred in admitting the 1962 will to probate and refusing to admit the 1975 will to probate as the last will of Pearl Lindley. We think it did.

There was no question as to competency, execution, witnessing and proof of the 1975 will. There was no question but that the 1975 will provided for revocation of the 1962 will. The District Court had no alternative but to admit the 1975 will to probate rather than the 1962 will. Nesbett v. Nesbett, 428 S.W.2d 663 (Tex.1968). The finding that the 1962 joint will was mutual and contractual will not defeat the probate of the 1975 will as Pearl Lindley’s last will. Tips v. Yancey, 431 S.W.2d 763 (Tex.1968). Such a finding is not only immaterial but in a proceeding such as this neither this Court nor the court below has jurisdiction to determine whether or not the 1962 joint will was mutual and contractual. Nesbett v. Nesbett, supra. When a will is offered for probate, the court’s jurisdiction with respect to the application is limited to a determination of whether or not the will should be admitted to probate as the last will of the decedent. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942). The determination of whether or not a will is mutual and contractual is not a matter incident to an estate as that term is used in Section 5, Tex.Probate Code Ann. It is a suit on a contract.

Our disposition of the case is without prejudice to the rights of appellees, Betty Chamberlain and Juliette Fowler Home, to file suit in a court of competent jurisdiction to determine their rights, if any, under the alleged contract which gave rise to the execution of the 1962 joint will by R. L. Lindley and his wife, Pearl Lindley. Nesbett v. Nesbett, supra.

The judgment of the trial court is reversed and judgment is here rendered that the 1975 will be admitted to probate as the last will of Pearl Lindley.


author: FONES, Justice.

text:
    The CITY OF LEWISBURG, the County of Marshall and the Attorney General of the State of Tennessee, Appellants, v. The FIRST NATIONAL BANK OF LEWISBURG and the Peoples & Union Bank of Lewisburg, Appellees.
    Supreme Court of Tennessee.
    April 3, 1978.
    Stephen S. Bowden, William N. Lloyd, Lewisburg, Brooks McLemore, Jr., Atty. Gen., Everett H. Falk, Deputy Atty. Gen., Nashville, for appellants.
    James M. Jones, Jr., Knox Bigham, Lew-isburg, for appellees.
   OPINION

FONES, Justice.

Two Lewisburg banks brought this suit to recover taxes paid under protest to the City of Lewisburg and to Marshall County. The taxes in question were assessed for the year 1975. The tax is upon the shares of stock of stockholders of the banks pursuant to T.C.A. §§ 67-715 — 67-728 inclusive, but is assessed to and collected from banks.

The learned Chancellor agreed with the contention of the banks that Article II, Section 28, Constitution of Tennessee, ratified by the people in August, 1972, effective January 1, 1973, rendered unconstitutional taxation of the shares of stock of stockholders of banks and he awarded a judgment in favor of the banks for the taxes paid the city and county based upon the assessment of the total value of the outstanding shares of capital stock of each bank, respectively.

It was the Chancellor’s opinion that “the only reasonable meaning of the language used is the Legislature cannot tax such property.”

The only issue in this case is whether or not the constitutional amendment to Article II, Section 28, rendered unconstitutional the taxation of shares of bank stock with the result that the method of assessment and taxation in effect at the time of the amendment was abrogated.

The Attorney General was made a party defendant in compliance with Rule 24.04, T.R.C.P.

This case turns upon the interpretation of the intangible personal property paragraph of Article II, Section 28, Constitution of Tennessee. That paragraph is as follows:

“The Legislature shall have power to classify Intangible Personal Property into subclassifications and to establish a ratio of assessment to value in each class or subclass, and shall provide fair and equitable methods of apportionment of the value of same to this State for purposes of taxation. Banks, Insurance Companies, Loan and Investment Companies, Savings and Loan Associations, and all similar financial institutions, shall be assessed and taxed in such manner as the Legislature shall direct; provided that for the year 1973, or until such time as the Legislature may provide otherwise, the ratio of assessment to value óf property presently taxed shall remain the same as provided by law for the year 1972; provided further that the taxes imposed upon such financial institutions, and paid by them, shall be in lieu of all taxes on the redeemable or cash value of all of their outstanding shares of capital stock, policies of insurance, customer savings and checking accounts, certificates of deposit, and certificates of investment, by whatever name called, including other intangible corporate property of such financial institutions.”

The banks rely upon what they assert to be the “plain language” of the second and last proviso in the paragraph as prohibiting the taxing of the “outstanding shares of capital stock” of banks and other corporations referred to in the paragraph.

Defendants insist that the first proviso retained in force and effect the only scheme of taxation of intangible personal property of banks, to wit: that provided in T.C.A. §§ 67-715 — 67-728.

The tax statutes involved, which for convenience we shall refer to as the bank stock tax, originated as Section 24, Chapter 602, Public Acts 1907. The tax is imposed upon the shares of stock of stockholders of banks, etc., doing business in this state, for state, county and municipal purposes, as their personal property, and contains the proviso that “the assessment of such shares of stock as the property of the stockholders shall be in lieu of any assessment or taxation of the capital stock or corporate property of such corporation, or association.” T.C.A. § 67-715 (1976). Such shares of stock are directed to be assessed at the “actual cash value of same less the assessed value of realty and value of personal property otherwise assessed or returned for taxation, and all such property on which the corporation pays the taxes so assessed.” T.C.A. § 67-716 (1976).

It is relevant to observe here a principle of taxation announced in Bank v. Memphis, 101 Tenn. 154, 46 S.W. 557 (1898). The bank sought to enjoin the collection of taxes on its capital stock by the city. One of the grounds relied upon was that the Legislature had made no provision for the assessment of a tax on the capital stock of banks and that Section 10, Public Acts 1895 expressly provided that:

“ ‘[N]o tax shall hereafter be assessed upon the capital stock of any bank, banking association, or loan, trust, insurance, or investment companies, but the shareholders in such bank or other associations shall be assessed and taxed upon the market value of their shares of stock therein.’ ” 101 Tenn. at 156, 46 S.W. at 558.

Commenting upon that act, the Court said:

“It is true that, under well-settled decisions of this Court, the capital stock belonging to the corporation and the shares of stock owned by the stockholder, are separate and distinct subjects of taxation, and the taxation of one is not the taxation of the other, nor is the assessment of both subjects duplicate taxation. Street R. R. Co. v. Morrow, 87 Tenn. 406, 417,11 S.W. 348; State v. Bank of Commerce, 95 Tenn. 221, 226, 31 S.W. 993.” 101 Tenn. at 159, 46 S.W. at 559.

This Court made reference to that same principle with respect to Chapter 602, Public Acts 1907, in the case of Tennessee Fertilizer Co. v. McFall, 128 Tenn. 645, 163 S.W. 806 (1913), as follows:

“It is within the power of the legislature to assess corporations upon their corporate property and capital stock excluding the shares of stock, or it is within the power of the legislature to assess shares of stock in lieu of corporate property and capital stock. The latter method of assessment was adopted in section 24 of the act of 1907, respecting banking associations and other corporations therein named. Either mode of assessment is valid, and neither can be regarded as unlawfully exempting corporate property from taxation. The two plans are merely different methods of assessment of corporate property. Bank v. Memphis, 101 Tenn. 154, 46 S.W. 557; Carroll v. Alsup, 107 Tenn. 257, 64 S.W. 193.” 128 Tenn. at 660-661, 163 S.W. at 810.

All of the litigants in this case construe the bank stock tax as one “imposed” upon the stockholders, but seek to draw different conclusions therefrom. We are unable to see that that factor has any significance in this case. The tax in question is a tax in lieu of any tax upon the banks’ property and it is immaterial to the taxing authority, or the legality thereof, whether the tax ultimately falls upon the bank or the stockholder. It is only significant to note as did the Court in McFall that the method of assessment selected by the Legislature was to assess the shares of stock of stockholders in lieu of the capital stock or corporate property of the corporations.

We interpret the intangible personal property paragraph of Article II, Section 28, insofar as it is relevant to the issue in this case, as authorizing the Legislature to do the following:

1. Classify intangible personal property into subclassifications and establish a ratio of assessment to value in each classification or subclassification;
2. With express reference to banks, insurance companies, loan and investment companies, savings and loan associations and similar institutions, assess and tax their intangible personal property in such manner as the Legislature may direct, consistent with whatever legislative action may be taken pursuant to the authorization contained in the first sentence of the paragraph;
(a) provided, that for the year 1973, or until otherwise provided by the General Assembly, the same method of assessment that presently prevails (1972) for determining the value of presently taxed (1972) intangible personal property of banks, etc., shall remain the same as provided by law for the year 1972;
(b) also provided, that whatever intangible personal property taxes the Legislature may hereinafter (January 1, 1973) enact to be imposed upon and paid by banks, etc., when and if that is done, stockholders may not be taxed upon their shares of stock, or depositors upon their savings and checking accounts, certificates of deposits, certificates of investment, or similar intangible personal property.

The first proviso was obviously designed to prevent institutions from enjoying the possibility of a hiatus in intangible personal property taxation from January 1, 1973, until such time as the Legislature elected to classify intangible personal property and establish a ratio of assessment to value. With respect to real property and tangible personal property, Article II, Section 28, establishes the sub-classifications and the ratio of assessment to value for each of the classifications, thus avoiding a possible hiatus. As a necessary and inescapable incident of the first proviso, the relevant tax law in effect in 1972 was retained in full force and effect until Legislative action directly repealing, altering, or amending same. The relevant tax law was T.C.A. §§ 67-715 — 67-728. It was still in force and effect in 1975, the taxable year involved in this ease.

The second proviso does not exempt outstanding shares of capital stock, policies of insurance, customer savings and checking accounts, certificates of deposit, etc., from taxation. They may be the subject of assessment and taxation to financial institutions, at the discretion of the Legislature. If the convention had intended, by the language used, to exempt the types of intangible personal property specified in the second proviso, that action would be in violation of an express limitation of the call, and void.

Chapter 421, Acts of 1968, as amended, provided in part:

“Exemption of Intangible Personal Property. The Convention shall further provide that money deposited in an individual’s personal or family checking or savings account shall be exempt from taxes, in an amount to be determined by the convention.
“No exemptions other than those specified herein shall be authorized by the Convention . . ..” 1968 Tenn.Pub. Acts, ch. 597.

The restriction of exemptions of intangible personal property to money deposited in an individual’s personal or family checking or savings account is a valid limitation on the call. See Illustration Design Group, Inc. v. McCanless, 224 Tenn. 284, 454 S.W.2d 115 (1970); Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949). It does not involve dictation by the Legislature to the convention of mandatory constitutional language, condemned in Snow v. City of Memphis, 527 S.W.2d 55 (Tenn.1975).

The convention provided in the first paragraph of Article II, Section 28, that the entire amount of money deposited in an individual’s personal or family checking or savings accounts shall be exempt from taxation.

Thus the customer checking and savings accounts referred to in the intangible personal property paragraph of Article II, Section 28, embraces only accounts other than individual and family accounts.

The second proviso is patently ambiguous. If interpreted as exempting bank stock from taxation either in the hands of stockholders or as capital stock of the banks, it is beyond the call of the convention and void. On the other hand, if interpreted to mean that any tax hereafter imposed upon the intangible personal property of banks, etc., shall be in lieu and instead of taxation of stockholders, depositors, etc., as owners of the specified types of intangible personal property, it is valid. That limitation would merely restrict taxation of the specified types of intangible personal property to one source, avoiding a form of duplicate taxation, a valid constitutional objective within the limitation of the call.

We think that by analogy, the same rule applicable to legislative acts should be applicable to constitutional amendments, to wit, where two interpretations are possible, one of which would invalidate and the other validate, the presumption is that the valid interpretation was intended. See White v. Davidson County, 210 Tenn. 456, 360 S.W.2d 15 (1962); Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1956); see also Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963). Also, as we said in Snow, supra, the courts must indulge every reasonable presumption of law and fact in favor of the validity of a constitutional amendment after it has been ratified by the people.

For these reasons we hold that Article II, Section 28, as amended effective January 1, 1973, did not affect the validity of the method of taxation in T.C.A. §§ 67-715— 67-728. No legislative change was made until after 1975, and the assessments for that year upon the two Lewisburg banks were valid.

The decree of the Chancery Court of Marshall County is reversed and this suit is dismissed. The costs are adjudged against the banks.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . In 1977, banks were removed from the application of these statutes by amendments to T.C.A. §§ 67-715, 67-721, and 67-726, and by repeal of T.C.A. § 67-719. 1977 Tenn.Pub. Acts, ch. 140, §§ 2, 5, 6, 7.