author: BLAIR, Justice.

text:
    RIO BRAVO OIL CO. v. McENTIRE et al.

    No. 7736.
    Court of Civil Appeals of Texas. Austin.
    March 29, 1933.
    Rehearing Denied May 3, 1933.

      W. A. Wright, Chas. G. Russell, and C. H. Tupper, Jr., all of San Angelo, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
    Kerr & Gayer and Smith & Neill, all of San Angelo, and P. O. Settle and Wm. L. Wise, both of Port Worth, for appellees.

      writ of error granted.

   BLAIR, Justice.

Appellee George MeEntire sued appellant, Rio Bravo Oil Company, in trespass to try title to recover sections 13, 23, and 25 in block 23, Houston & Texas Central Railway Company lands in Sterling county (formerly a part of Tom Green county). Appellant filed a general denial and general demurrer, and a plea of not guilty; but on the trial claimed only the minerals in the land with certain surface rights for the development and production of minerals. The Gulf Production Company intervened, claiming the oil and gas in sections 13 and 23, under a lease executed by appellee MeEntire, which lease MeEntire admitted to be valid. A trial to the court without a jury resulted in a judgment for appellee as prayed, and a judgment for the Gulf Production Company establishing the validity of its oil and gas lease; hence this appeal.

Appellant attacks the judgment in favor of appellee MeEntire as not being supported by the evidence adduced; and the appeal therefore involves an analysis of the evidence and the construction of certain instruments in the light of the facts and circumstances surrounding their execution, as links in the chain of McEntire’s title. We have reached the conclusion that the evidence sufficiently supports the judgments rendered.

The Houston & Texas Central Railway Company, hereinafter designated railway company, is the admitted common source of titlej the 3 sections of land having been duly patented to it by the state of Texas in 187T, by virtue of surveys made under land scrip issued to it in 1867. In 1872 the railway company mortgaged- these lands to the Farmers’ Loan & Trust Company, trustee, the mortgage providing that said trustee shall sell the lands “at public or private sale,” in default of the payment of the indebtedness secured; and that said trustee “shall execute a deed in fee simple” to purchaser, which “shall be a bar against * * * all claims * * * and all right of redemption” of the mortgagor and its successors and assigns; and that the deed “shall convey full and absolute title therein to the purchaser free and clear of all encumbrance.” Thereafter, on June 24, 1882, the -railway company' contracted to sell section 23 to Jos. M. Kelley; and on August 12, 1882, it contracted to sell Kelley sections 13 and 25, the contracts reciti'ng that the. consideration was paid partly in cash and partly by notes secured by a lien upon the lands; and both of the contracts contained the following stipulations and reservations;

“In case the party of the second part, his legal representatives or assigns shall pay the said notes according to their tenor and effect, then the said railway company will make or cause to be made and executed unto the said party of the second part, his heirs or assigns (upon request at the general office of the party of the first part and the surrender of this contract) a deed conveying said premises with special warranty, but made subject to the' following rights of the said railway company, each and all of which rights are hereby reserved and are not to pass by the deed to be made by said railway company. * * *
“The Houston and Texas Central Railway Company reserves the right at all times hereafter to enter upon the land hereby conveyed and prospect for and make surveys at will, and any part of it, for coal, mineral, stone, or any other valuable deposits, and to open upon said land and operate with all machinery, appliances and attachments which it may deem necessary, mines, borings and quarries, and the coal, mineral, stone, or other .valuable deposits found in and taken from all such mines, borings and quarries shall be the property of said Houston and Texas Central Railway Company, and it shall have the right to remove the same, and for the purpose of ingress and egress to and from such mines, borings and quarries a further right of way over the land hereby conveyed sixty feet in width to and from such mines, borings and quarries is hereby reserved.
“The said Joseph M. Kelley, hy accepting this deed, agrees to the reservation aforesaid and to the entire contract hereinbefore specified, and covenants to and with the said railway company and its assigns that it and they shall have and enjoy all the reservations, rights and privileges contained and contracted for in this deed, and further agrees that this covenant shall run with the land hereby sold, and it is stipulated in this agreement that no assignment of the premises shall he valid unless the same shall he endorsed hereon.”

It may here he noted that appellee contended, and the trial court found, that these contracts of sale did not include in the reservations petroleum or natural gas.

The June 24, 1882, contract was filed for record December 17, 1886; hut the August, 1882, contract was not filed for record until October 4, 1929. On the June, 1882, contract there was indorsed: “Duplicate No. 12,781, Contract No. 31½0. Houston & Texas Central Ry. Co. With.Joseph M. Kelley. For Sale of whole Sec. 23, Block 23, Tom Green County, 640 acres.”

The notes referred to in tlie June, 1882, contract each recited:

“This note is given in part payment for 640 acres of land, being the whole of Section No. 23, Block No. 23, in the County of Tom Green, sold and conveyed to me by the said Houston & Texas Central Railway Company, by Contract No. 31⅛0, bearing date the. 24th day of June, 1882, and is secured by a vendor’s lien on said property as retained in said contract. No. D106, Due June 24, 1883.”

Note No. 1 of this series of notes was paid June 25, 1883. The August, 1882, contract bears the following indorsement: “No. 12,-781, Contract No. 58C, Houston & Texas Central Ry. Co. With Joseph M. Kelley. Eor sale of Whole Sect. 13 and 25, Block 23, Tom Green County, 1280 Acres.”

The notes referred to in the August, 1882, contract each recite: “This note is given in part payment for 1280 acres of land, being the whole of Section Nos. 13 and 25, Block No. 23, in the County of Tom Green, sold and conveyed to me by said Houston & Texas Central Railway Company, by contract No. 58.C, bearing date the 12 day of August, 1882, and is secured by a Vendor’s Lien on said property, as retained in said contract. No. L203, due Aug. 12, 1883.”

The first of these notes was paid on August 16, 1883.

In 1885 several suits were filed in the federal court, seeking to foreclose mortgages executed by the railway company, one of which was filed by the Farmers’ Loan & Trust Company, trustee; and these suits were all consolidated by order of the court and a- receiver appointed.

On May 7, 1885, the court ordered the Farmers’ Loan & Trust Company, trustee, to sell the lands in controversy, and to report to the receiver of the railway company all such sales. The said trustee was further ordered to execute deeds for lands theretofore sold by the railway company in all instances where the purchase-money notes had been paid; and that, in instances where contracts of sale had been made by the railway company and approved by the trustee, he should execute deeds to the respective purchasers ; and that .such deeds were to be held in escrow by the receiver for delivery to the purchasers whenever they had paid for the lands in full. On August 20, 1885, in pursuance of this order, the Farmers’ Loan & Trust Company, trustee, acting under the deed of trust of October 1, 1872, executed to J. M. Kelley two instruments, each of which read in part as follows: “Now, Therefore, This Indenture Witnesseth, that the party hereto of the first part, in consideration of the premises and of the payment made to it by the said Receivers in pursuance of the above order, and of the sum of one dollar to it in hand paid by the party hereto of the second part, the receipt whereof is hereby acknowledged, hath granted, demised, released and quitclaimed, and, by these presents, doth grant, demise, release and quitclaim unto the party of the second part, and to his heirs and assigns forever, all that certain lot, piece or parcel of land and property situate, lying and being in the County of Tom Green in the State of Texas, known and described as follows, namely.”

The instrument relating to the June, 1882, contract described, the land conveyed as follows: “All of Section 23, Block 23, Certificate 1012, containing 640 acres, deeded to party of second part by the Houston and Texas Central Railway Company on the 24th day of June, 1882, by deed No. 31½0, at the price of Two dollars and fifty cents per acre, together with all and singular the rights, members, heredita-ments and appurtenances to the same belonging or in anywise incident or appertaining.”

The instrument relating to the August, 1882, contract described the land conveyed as follows: “All of Sections 13 and 25, Block 23, Certificates 1007 and 1013 containing 1280 acres, deeded to party of the second part by the Houston and Texas Central Railway Company on the 12th day of August, 1882, by deed No. 58C at the price of two dollars and twenty-five cents per acre, together with all and singular the rights, members, hereditaments, and appurtenances to the same belonging or in anywise incident or appertaining.”

These two instruments were placed in escrow with the receiver of the railway company. The evidence is undisputed that the railway company had defaulted in the payment of the 1872 mortgage to the Farmers' Loan & Trust Company, trustee.

It may here be noted that appellee contended that the above-quoted. trustee’s quitclaim deeds conveyed to Kelley “all that certain * * * land” described without any reservation of the minerals; and appellee further contended, and the evidence sustains the contention, that he was and is owner of the title to the surface of the lands in suit by virtue of recorded mesne conveyances as follows: Deed, J. M. Kelley to William Henry, 1883; deed, William Henry to J. A. Peacock & Bro., 1884; deed of trust, Peacock Bros, to E. C. Kellog, 1887; appointment of trustee, E. C. Kellog to A. W. Hudson, 1887; trustee’s deed, A. W. Hudson to E. C. Kellog, 1887; quitclaim deed, E. C. Kellog to MeEntire & Barnett, 1887; deed, MeEntire & Barnett to W. H. Thomas, 1889; deed, W. H. Thomas to Wilson Live Stock Company, 1890; quitclaim deed, Wilson Live Stock Company to W. R. MeEntire, 1898; deed, W. R. MeEntire to George H. MeEntire (undivided one-half in-, terest), 1918; will, W. R. MeEntire to Missie C. MeEntire, 1920; deed, Missie C. MeEntire to George H. MeEntire, 1920.

Appellant contended that, when the aforementioned trustee’s releases or quitclaim deeds are construed in the light of the court’s order authorizing their execution, the placing of them in escrow with the receiver until the payment of the Kelley notes, and other proceedings concerning the Kelley notes, such instruments amounted to nothing more than a release of the Kelley notes. Appellant also contended that the Kelley contracts reserving the minerals in grantor severed dominion over them from that over the surface soil; and that, while it was true the mortgage covered the minerals, the trustee’s release or quitclaim deeds referred to the Kelley 1882 contracts from the railway company, for description of the land intended to be conveyed ; and that appellee was therefore bound and tied to the contracts reserving the title to the minerals, unless perchance something has intervened to destroy these reservations of minerals. In this connection appellee offered proof of a lost deed or deeds from the railway company conveying the lands to Kelley, and contended that the references in the trustee’s quitclaim deeds were to the lost deed or deeds from the railway company to Kelley, instead of the Kelley 1882 contracts to purchase the lands from the railway company. And, as to the lands' conveyed by the lost deeds, the evidence sustains the finding of the trial court that they conveyed “all of sections 13 and 25, in Block 23,” and “all of section 23, in Block 23,” without any reservation of the minerals. Other transactions concerning the Kelley notes and the claims of equitable title of appellee are as follows:

On May 4, 1888, Charles Dillingham was appointed special master commissioner in the aforementioned consolidated suit, to make sale of all the property of the railway company covered by what were known as the consolidated main line and western division mortgage, executed in 1872, and th,e main line and western division first mortgage, executed in 1873 ; and the evidence is undisputed that the lands in controversy, including the minerals, were covered by the first mentioned mortgage. In pursuance of this order, on September 8, 1888, the property covered by the two mortgages was sold by Charles Dillingham as special master commissioner to Frederick P. Ol-cott, without particular description of the property, but with the following exceptions: “Saving and excepting such portions of said land which have already been sold and including all notes given to secure the credit portion of the price of land sales.” On December 4, 1888, the court approved the report of sale, and ordered deeds of conveyance to be made to Olcott; and on January 18, 1889, Charles Dillingham, as special master commissioner, the Farmers’ Loan & Trust Company, trustee, and the other mortgage holders, executed a deed to Frederick P. Olcott, in accordance with the report of sale conveying the lands covered by the two mortgages, “saving and excepting such portions of said land as may have been heretofore and prior to May 4, 1888, sold to other purchasers, and including all notes given to secure the credit portion of the price of land sales.” The lands were conveyed to Olcott without particular description, and the deed to Olcott was recorded August 24, 1905. Although this deed was executed in 1889, it was not delivered to Olcott for a long period of time, because, as shown by the evidence, the delivery of the possession was delayed by order of the court for reasons not material here. After Olcott purchased the property in 1888, the court ordered upon the application of Olcott that Charles Dillingham, receiver, continue to sell any of the lands and to execute deeds therefor upon the approval of Olcott and the mortgage holders. On February 1, 1891, by an unrecorded contract with Charles Dillingham, 'receiver, the Wilson Live Stock Company agreed to purchase the Kelley notes, together with all of the receiver’s interest in the land in controversy, without reservation of title of any kind in said 1891 contract. This contract recited that the lands in controversy had been sold on June 24, 1882, and August 12, 1882, by written contracts to J. M. Kelley by -the railway company; and that said contracts were “recorded in - records of Tom Green County.” This reference to the records was incorrect, because only the June 24, 1882, contract was recorded at that time. The 1891 contract further recited that there was a balance then due on the Kelley notes of $4,304.15, and provided that one-fifth of that amount should be paid in cash, and the balance to be evidenced by four notes of the same date, payable to the said receiver, 1, 2, 3, and 4 years after date. The contract further provided that, if these notes were paid, then the receiver was obligated to transfer and assign the Kelley notes without recourse; and further as follows: “It is further understood that the party of the first part, his successors or assigns are to deliver said notes (Kelley notes) to the party of the second part, its successors or assigns, when the consideration hereinabove mentioned has been paid in full. AVlien the Wilson Live Stock Co. shall have paid off in full the notes herein described, then the party of the first part, his successors or assigns shall assign and transfer to the party of the second part, its successors or assigns all of his interest in said lands.”

The record shows that Olcott, who purchased the entire railroad properties from the receiver, acquiesced in and received payment from the Wilson Live Stock Company under the 1891 contract. The Wilson Live Stock Company fully performed the 1891 contract by paying all the notes it has executed,- which’ together with all of the Kelley notes were de-' livered to the Wilson Live Stock Company in 1898.

On February 17, 1891, Dillingham, receiver, reported that Olcott had assigned the property sold to him to the newly organized Houston & Texas Central Railroad Company, a corporation; and the orders of the court show delay in the delivery of these properties to the newly organized railroad company upon grounds not material here. By correspondence between appellee McEntire’s father and the officials of the new Houston & Texas Central Railroad Company in 189S, the parties conceded that the aforementioned transactions fully released all notes executed by Kelley to the old Houston & Texas Central Railway Company, and all notes executed by the Wilson Live Stock Company to Charles Dillingham, receiver; and that the new Houston & Texas Central Railroad Company had no further claim in so far as the aforementioned notes were concerned. No deed or conveyance was executed by the receiver conveying the lands as he agreed to do under this contract.

It was contended by appellee that this 1891 contract superseded the 1882 Kelley contracts, and that appellee, having fully performed the 1891 contract, was entitled to a superior equitable title to the lands, including the minerals. Appellant contends that the 1891 contract amounted to nothing more than a renewal and extension of the Kelley notes; and that the performance of the contract and delivery of the notes constituted a release of them. By trial amendment appellant further contended that it was an innocent purchaser for value of the legal title to the minerals without notice of the 1891 Wilson Live Stock Company contract. And appellant claimed title to the minerals from the railway company through such of the above mesne conveyances as are applicable and as follows:

On August 21, 1918, the Houston & Texas Central Railroad Company, with the approval of the trustee of the Southern Pacific Company and of Dudley Olcott II, and Janies N. AVallace, who had acquired an interest from Frederick P. Olcott, purchaser of the old Houston & Texas Central Railway Company property, executed an instrument, deeding the minerals in the land in controversy, together with the minerals in some 80 or 90 other sections of land, to appellant Rio Bravo Oil Company. This deed was lost, and another executed in lieu of it, which was not recorded until 1929. The consideration recited for this conveyance of the minerals in the 80 or 90 sections of land was “the sum of Three Thousand Six Hundred and Seventy-seven and 00/100 ($3,677.00) Dollars in cash.” The trial court found that the evidence was insufficient to show that this consideration was actually paid as applied to the issue of innocent purchaser for value.

From the facts adduced, the trial court concluded:

(1) That, if the 1882 Kelley contracts were valid, the reservation of minerals therein did not include petroleum or natural gas; (2) that the 1882 Kelley contracts were never carried out, but were superseded by the 1891 Wilson Live Stock Company contract, which was fully performed; (3) that the appellant Rio Bravo Oil Company was not an innocent purchaser for value of any legal title of the minerals without notice of the 1891 Wilson Live Stock Company contract; (4) that ap-pellees MeEntire and the Gulf Production Company hold the superior record title through the Farmers’ Loan & Trust Company’s deeds to all the lands in controversy; (5) that the Rio Bravo Oil Company failed to show any outstanding title to the minerals involved.

We do not sustain the conclusion of the trial court that the 1882 Kelley contracts did not reserve or include in the reservations the petroleum or natural gas. The language, “all coal, mineral, stone or any other valuable deposits,” has a fixed and definite legal meaning, and under the well-settled rule in this state includes now and at the tune the language was used the oil and gas in the land's, as a matter of law. States Oil Corporation v. Ward (Tex. Com. App.) 236 S. W. 446; Warner v. Patton (Tex. Civ. App.) 19 S.W.(2d) 1111; Graham’s Estate v. Stewart (Tex. Civ. App.) 15 S.W.(2d) 72; Luse v. Boatman (Tex. Civ. App.) 217 S. W. 1096; Elliott v. Nelson, 113 Tex. 62, 251 S. W. 501; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607.

The evidence sustains the findings and conclusion's of the trial court that appellee MeEntire acquired the legal title to the minerals as well as to the surface soil through the deeds from the trustee of the Farmers’ Loan & Trust Company to Kelley, and the lost deed or deeds from the railway company to Kelley, referred to in the trustee’s deeds a's conveying “all of Section 23, Block 23,” and “all of Sections 13 and 25, Block 23 * * * deeded” by said railway company to Kelley ; and that appellee McEntire acquired the equitable title to the lands, including the minerals through the performance by his predecessors in title of the 1891 Wilson Live Stock Company contract. It is manifest that the trustee’s deeds amounted to more than a mere release of the Kelley notes, when they are construed in the light of the facts and circumstances surrounding their execution. They were executed under order of the court with instruction to the railway company to list all “sales and contracts of sales” it had made of lands, together with all notes taken in part payment therefor. The list of sales filed by the railway company pursuant to this order showed that the lands in suit had been sold by the railway company to Kelley by “deed No. 3iy2C,” dated June 24, 1882, for $320 cash and four notes for $320 each; and “deed No. 58-C,” dated August 12, 1882, for $576 cash, and four notes for $576 each. The court approved these sales and ordered the trustee to execute "deeds,” not releases or quitclaim deeds, and to place them in- the hands of the receiver in escrow, to be delivered to Kelley when the purchase-money notes were paid. The trustee then executed the deeds above quoted, which use the terms “granted” and “grant” in the conveyance clauses, and which under the provisions of article 1291, R. S. 1925, and our court decisions, are capable of conveying, the largest possible estate in the lands. Neither the 'report of the railway company of sales nor the trustee’s deeds made any reservation of the minerals from the conveyances. The trial court found that the trustee’s deeds referred to the lost deed or deeds from the railway company to Kelley; and under the facts above detailed we are not prepared or authorized to say that no such' deeds existed, and that as a matter of law the references in the railway company’s lists and trustee’s deeds were to the Kelley 1882 contracts of the same date, which required the execution of deeds when the notes were paid 'and the contracts were surrendered. The contracts with Kelley and introduced in evidence were introduced by appellant, and were shown to have been in the possession of the railway company 'and its successors, although one of them is marked “duplicate.” These contracts bore no mark as having been introduced in the consolidated suit proceedings. Since neither the trustee’s deeds nor the lost deed or deeds from the railway company to Kelley reserved the minerals, the trial court was justified in concluding that the parties did not intend to reserve the minerals.

It is also manifest in this connection that neither Kelley nor his successors in title were parties to the aforementioned federal court proceedings, and of course were not bound by the trustee’s deeds, unless by subsequent act or transactions they ratified or ac-. eepted them. Subsequent proceedings in the federal court and transactions between the parties at interest show that the deeds alone did not close the transactions, but that the execution and performance of the 1891 Wilson Live Stock Company contract terminated all transactions. Briefly, the record shows that in 1888, under order of the court, the title to all lands of the railway company, including the minerals in the lands in suit, if title thereto had not already passed to Kelley under the trustee’s deeds and the lost deed or deeds, was conveyed to Olcott by the deed of the receiver and the mortgage holders. Possession was not delivered to Olcott for many years, but on application of Olcott the court ordered the receiver to continue to sell the lands of Olcott, to collect notes given for lands sold, and to execute deeds therefor. The record shows that in 1891 nothing had been paid on the last three of each series of the Kelley notes; and that appellee’s father and predecessor in title, as president of the Wilson Live Stock Company, began negotiations with the railway company’s land commissioner, who held the same position for the receiver, Olcott, and the newly organized railroad company, for a settlement of the Kelley notes and lands, and other sections of lands in the same block 23, sold by the railway company to one Curry, but then owned by said live stock company. The Curry lands had been deeded by the railway company with reservation of lien to secure the purchase-money notes, but with no reservation of minerals. The negotiations led to the execution, on February 1,1891, of the Wilson Live Stock Company contract to purchase the Kelley notes, and for conveyance of all of the receiver’s interest in the Kelley lands when the live stock company’s notes had been paid. On the same date the Wilson Live Stock Company contracted to purchase the Curry notes by contract identical with the Kelley notes and land contract, except no provision was made to convey all the receiver’s interest in the land upon payment of the Curry notes. This difference is significant in the contemporaneous contracts as showing the intention of the parties to convey any remaining interest that might be reserved by the Kelley contracts when the Wilson Live Stock Company paid the notes it had executed as consideration for the 1891 contract. The record shows that the receivership wag closed before the last payment was due or made on the 1891 Wilson Live Stock Company contract, and it is probable that for that reason the conveyance provided for was not made. The record shows that Olcott and the new railroad company acquiesced in the perform-anee of the 1891 contract, and that the last note was paid in 1898, whereupon the Kelley, notes, the Wilson Live Stock Company notes, and the trustee’s deeds were delivered to Mc-Entire. Correspondence between the aforementioned land commissioner for the receiver and all owners of the railroad properties, arid the attorney for the newly organized railroad company, shows the efforts of McEntire to obtain at that time, 1898, a deed for the Kelley lands; and there is nothing in these letters to indicate that any one claimed a reserved interest in the minerals. And, since the Wilson Live Stock Company fully 'performed its contract, equity will regard the conveyance contracted for as having been made.

But appellant contends that it was a subsequent purchaser from Olcott, the mortgage holder, and the newly organized railroad, for value and without notice of the unrecorded 1891 Wilson Live Stock Company contract.

We doubt if the question of innocent purchaser is involved, but, if so, then the tidal court found against the plea of innocent purchaser for value, and the evidence sustains the finding upon the ground that appellant’s evidence was insufficient to show that the recited consideration of some $3,600 for the minerals in 80 or 90 sections of land was actually paid. A junior purchaser, to postpone a prior unregistered conveyance, must prove actual payment of the purchase money; recitals in his deed to that effect not being sufficient. Watkins v. Edwards, 23 Tex. 443; Ackers v. Frazier (Tex. Civ. App.) 220 S. W. 426; But, if we are correct in our view that the evidence sustains the conclusion of the trial court that the trustee’s deeds to Kelley and the 1891 Wilson Live Stock Company contract conveyed both the legal and equitable title to the surface soil without any reservation of the minerals in the lands, then the question of innocent purchaser is not in the ease, because the instrument or deed relied upon by appellant as conveying the minerals in question to it did not convey the minerals in any particular lands, but described them as follows: “The minerals, rights, privileges and easements herein contracted to be sold and conveyed to the party of the third part are those reserved in the sales of any and all tracts or parcels of land granted by the State of Texas to the Houston & Texas Central Railway Company and heretofore sold by the said Railway Company, the Receiver or Receivers thereof, in any and all counties of the State of Texas wheresoever the said lands may be situated.”

It is manifest that from the form and language of this instrument or deed the burden was upon appellant to show what lands had been sold and conveyed by the railway company, or receiver thereof, with reservation of minerals before it could recover such reserved minerals. The trial court found upon sufficient evidence as aforementioned that the instruments relied upon by appellee conveyed the minerals in question, to appellee’s predecessors in title some 35 or 40 years prior to the execution of the instrument relied upon by appellant, and that appellant therefore failed to show any outstanding title to the minerals.

The trial court erroneously found and concluded that appellee McEntire had title to the minerals involved by virtue of the statutes of limitation pleaded. The possession of the lands by appellee and his predecessors in title was shown to be merely the ordinary possession of the surface to which they were entitled under their deeds and contracts to purchase; and this possession alone would not defeat by limitation the title to the minerals which were reserved by the reservation in the 1882 Kelley contracts. Elliott v. Nelson, 113 Tex. 62, 251 S. W. 501; Wallace v. Hoyt (Tex. Civ. App.) 225 S. W. 425; Green v. West Tex. Coal Co. (Tex. Civ. App.) 225 S. W. 548; Houston Oil Co. v. Pullen (Tex. Com. App.) 272 S. W. 439; Luse v. Boatman (Tex. Civ. App.) 217 S. W. 1096; Luse v. Parmer (Tex. Civ. App.) 221 S. W. 1031.

The judgments of the trial court are affirmed.

Affirmed. .

On Appellant’s Motion for Rehearing.

Appellant contends on its motion for rehearing that we erred in finding that on August 20, 1885, the trustee, in pursuance of an order of sale by the court, and acting under the terms of the deed of trust, executed the two deeds of that date to Kelley. A careful review of the record sustains our finding. Appellant correctly complains that we erred in finding that the trial court specifically found that there were lost deeds from the railway company to Kelley. No specific finding as to lost deeds was made. But whether the trustee’s deeds referred to lost deeds or to the 1882 Kelley contracts is not decisive of the case, because in either event the contract was executory, and was so considered by the parties to the 1891 Wilson live stock contract. This contract, as pointed out in the original opinion, was sufficient to, and was intended to, convey, upon its being performed, all interest in the land, including the minerals. The case presents purely a question of fact, and we hold that the judgment of the trial court is sufficiently supported by the evidence as pointed out in the original opinion.

Motion overruled.

Overruled.


source: Caselaw Access Project

author: SHARP, Judge. CUBETON, Chief Justice.

license: Public Domain

text:
    JONES et al. v. ALEXANDER et al.
    No. 1627-6234.
    Commission of Appeals of Texas, Section A.
    May 3, 1933.
    E. G. Senter and Claud C. Westerfeld, both of Dallas, for plaintiffs in error.
    William McCraw, Tom C. Clark, and Guy Mann, all of Dallas, for defendants in error.
    O. W. Starling, of Dallas, amicus eurise.
   SHARP, Judge.

This cause is before the Supreme Court on certified questions from the Honorable Court of Civil Appeals for the Fifth Supreme Judicial District. The certificate reads as follows:

“D. M. Jones (plaintiff in error) as citizen taxpayer for himself and others similarly situated, and in his capacity as an officer and director of the Tax-Payers Protective League of Texas, an unincorporated association of taxpayers of the State, brought this suit against F. H. Alexander, county judge, and other members of the County Commissioners Court of Dallas County, to enjoin them from ordering payment, from the general funds of said county, of $1,500 per a.n-num additional salaries to each of the district judges of said county as members of the Juvenile Board; Dallas County having a population in excess of 100,000 according to the preceding Federal census, has a Juvenile Board and is acting under the provisions of title 82 R. S. 1925.
“Plaintiff alleged in substance: That since about the year 1917, the district judges of Dallas County have been paid, on orders of the Commissioners Court, out of the general funds of the county, an annual salary of $1,-500 in addition to the regular salary of district judges; that such payments are now being made monthly by order of said Court and that payments will continue to be made unless defendants are restrained from authorizing same. It is alleged ■ that defendants justify their action in ordering payment of said additional salaries, under articles 5139, 5140 and 5141 et seq., title 82 R. S. 1925, the constitutional validity of which is attacked by plaintiff as basis for his contentions; wherefore, he sought injunctive relief to prohibit defendants, and each of them, from ordering further payments of said additional salaries, etc. Defendants, answering the suit, urged general demurrers to plaintiff’s petition, which were sustained by the court and the cause dismissed, from which plaintiff appealed.
“As the case is now under submission, we deem it advisable to present to the Honorable Supreme Court for adjudication the issues of law necessary to a decision of the cause, as follows:
“(1) Is membership on the Juvenile Board a public .office in the sense that the exercise of the duties of such position by a district judge violates the provision of article 16, § 40 of the Constitution, that prohibits (with exceptions) the same person to hold or exercise at the same time more than one civil office of emolument, etc.’
“(2) Was the Legislature constitutionally authorized to provide for the payment, annually, to certain district judges, members of county Juvenile Board, $1,500 in addition to the salary authorized by law to be paid other district judges of the State?
“(3) Would the payment, on orders of the Commissioners Court, of such additional salaries violate section 51 of article 3 of the Constitution, as being unauthorized grants of public .money?
“(4) Do these statutes (articles 5139, 5140 and 5141 et seq.) require the performance, by said district judges, as members of the Juvenile Board, of non-judicial functions in violation of article 2, § 1 of the Constitution that divides the powers of the State government into three distinct departments, Legislative, Executive and Judicial?”

Since questions 1 and 4 are closely related, we will consider them together. These questions involve the construction of articles 5139 to 5143, inclusive, R. S. 1925, commonly known as the County Juvenile Board Act; section 40 of article 16; section 1 of article 2, and section 8 of article 5, of the Constitution.

Our Constitution, statutes, and decisions of the courts clearly demonstrate that the district court is a popular tribunal in which jurisdiction of many matters is lodged. As early as 1857, in the case of Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309, the Supreme Court, in discussing the jurisdiction of the district courts, held: “* * * Our Courts, possessing the powers of Courts of Chancery, may proceed to administer relief upon the principles of equity, as fully and completely as a Court of Chancery in England could do, without the aid of the Statute.”

In section 8 of article 5 of the Constitution is described the original and appellate jurisdiction of the district court. This section, among other things provides for “original jurisdiction -and general control over * * * minors under such regulations as may be prescribed by law.” That the framers of the Constitution intended to confer broad jurisdictional powers upon the district court is clearly 'shown in the following language: “and [the district court] shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.” Section 40 of article 16 of the Constitution, in part, reads as follows: “No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of peace, county commissioner, notary public and postmaster, officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States, and enlisted men of the National Guard, the National Guard Reserve, and the organized Reserves of the United States, unless otherwise specially provided herein.” This is followed with a proviso containing certain exceptions which are not pertinent to the questions under consideration.

The welfare of minors has always been a matter of deep concern to the state. In England it was one of the most important branches of equity jurisdiction and frequently exercised by the courts of chancery. Pomeroy’s Equity Jurisprudence, vol. 3 (4th Ed.) § 1303 et seq., pp. 3139, 3140, etc.

In addition to the constitutional provisions above cited, the statutes confer, among many other duties, jurisdiction over the affairs of minors in the district courts of certain counties to be exercised in connection with other persons. For this purpose the Legislature enacted article 5139 et seq.

Article 5139 provides that in any county having a population of one hundred thousand or over, the judges of the several district and criminal district courts of such county, together with the county judge of such county, are constituted a juvenile board, and fixes the annual salary of each of such district judges as members of said board at $1,500 in addition to that paid the other district judges of the state, said additional salary to be paid monthly out of the general funds of such county, upon the order of the commissioners’ court. Article 5140 provides that “such Board shall neither have nor exercise judicial power or function.” It further provides what steps may be taken when “any child should be adjudged either dependent, neglected or delinquent.” The other articles of this act describe in detail the methods of carrying into effect the provisions of this statute.

The foregoing act assigned to the district judges the following duties to be exercised by them, either together or separately: (1) To exercise a supervision over minors residing or found in the county who may be either dependent, neglected, or delinquent; (2) to obtain information concerning the welfare of such minors; and (3) to direct such action by probation officers to be appointed by the judges and such action by courts and persons having custody of such minors as may be deemed proper.

Many instances can be cited where the Legislature has imposed upon district judges additional duties not strictly judicial. To illustrate: They shall appoint county auditors (article 1647, R. S. 1925); at the instance of the grand jury may appoint a committee of accountants to examine the finances of the county (article 1638); are required to fill vacancies in the office of the district clerk (article 1895); appoint official court reporters (article 2321); shall remove disabilities of minors (articles 5921 to 5923); shall appoint jury commissioners (article 2104.); and to perform certain duties imposed hy the Administrative Judicial Districts Act (article 200a, Vernon’s Ann. Civ. St.).

Likewise, the Governor is prohibited by the Constitution from holding any other office (section 6 of article 4). Vet he is a member of several boards as provided for by the statutes, .viz.: Board appointing commissioner of markets and warehouses (article 5562); board of equalization in unorganized counties (article 7231); board of trustees for school of blind (article 3206); state board of canvassers (article 3068); state board of education (article 2664); state bureau of child and animal protection (article 4597); state naval board (article 5891); tax board (article 7041); text-book commission (article 2839).

Many decisions could be cited on this question, but we will refer only to a few of them. In the case of Arnold v. State, 71 Tex. 239, 9 S. W. 120, our Supreme Court held that such appointments of the Governor were not prohibited by the Constitution, because he was the chief executive officer of the state. In the case of Legate v. Legate, 87 Tex. 248, 28 S. W. 281, it was held that under the present Constitution the district courts have jurisdiction to issue the writ of habeas corpus and decide to whom the custody of a child rightfully belongs. In Brown v. Wheelock, 75 Tex. 385, 12 S. W. 111, 841, it was held that the act of the district judge in removing the disabilities of a minor was not a judicial act. See, also, Cunningham v. Robinson, 104 Tex. 227, 136 S. W. 441; State v. DeSilva, 105 Tex. 95, 145 S. W. 330. In the case of Binford v. Robinson, 112 Tex. 84, 244 S. W. 807, the Supreme Court, speaking through Judge Pier-son, held that a district judge refusing to approve the sheriff’s account would be required to do so by- mandamus. In the recent case of Rogers v. Lynn (Tex. Com. App.) 49 S.W.(2d) 709, was involved the question whether the acts of the district judge in approving or refusing to approve the accounts of a county attorney were judicial or nonjudicial, and Judge Critz, in an opinion expressly approved by the Supreme Court, held that his acts were nonjúdicial.

The Constitution of 1845, of 1861, and of 1866 contained a provision identical in the •three documents as follows: “No person shall hold or exercise at the same time more than one civil office of emolument, except that of justice of the peace.” Article 7, § 26. This provision is the same as in the present Constitution, save that the exception in the Constitution of 1876 adds other offices to that of justice of the peace. The Constitution of 1869 (article 3, § 30) extended the prohibition of holding more than one civil office of emolument to “agencies, or appointments of trust or profit under this State.”' A comparison of the language in the Constitution of 1869 and our present Constitution will show that the broad language used in the Constitution of 1869 was omitted in the present Constitution. Under a provision of the Constitution then existing, substantially identical with that provision we now have under consideration, the Supreme Court in the case of Powell v. Wilson, 16 Tex. 59, said: “But does it follow that the same, or at least some of the same duties may not be attached to two offices, to be exercised by the incumbents concurrently? or that the duties of an office may not be to act as substitute for another? We think not. * * * It does not constitute them incumbents of more offices than one; or subject them to the charge of holding or exercising two or more offices at the same time.” See, also, Kirk v. Murphy, 16 Tex. 654, 67 Am. Dec. 640; Gaal v. Townsend, 77 Tex. 464, 14 S. W. 365.

Unless the duties placed upon the district judges by virtue of this act create more offices than one, or subject them to the rule that they cannot hold two or more offices at the same time, or that the additional duties imposed are incompatible with their other duties conferred upon them by law, then the act cannot be condemned. Tire duties assigned by this act partake of the same general characteristics of other duties imposed by law. The duties assigned are made coterminous, in that the district judge ceases to sit, as a member of the juvenile board when his t term of office expires.

Using the plain language of the Constitution, which provides that the district court shall have “original jurisdiction and general control over * * * minors under such regulations as may be prescribed by law,” as a basis upon which to plant the validity of article 5139 et seq., which imposes additional duties upon district judges in certain counties for which extra compensation will be allowed, and when considered in connection with the many legislative acts imposing many other duties not strictly judicial upon district judges and the decisions of our courts bearing upon this question, we are unable to find any sound reason for holding that this act contravenes section 40 of article 16 of the Constitution or of any other provision of the Constitution.

We answer questions 1 and 4: “No.”

Question No. 2 should be answered in the affirmative. The Supreme Court of this state has repeatedly held that courts have no right to declare an act of the Legislature void, unless able to point to some provision of the Constitution which prohibits the act or from which the prohibition necessarily arises. Lytle v. Halff, 75 Tex. 128, 12 S. W. 610; Harris County v. Stewart, 91 Tex. 333, 41 S. W. 650; Smisson v. State, 71 Tex. 222, 233, 9 S. W. 112; San Antonio, etc., v. State, 79 Tex. 264, 14 S. W. 1063.

Tiie Constitution has placed no limitation upon the Legislature as to the amount of salaries to be paid district judges. Therefore, the Legislature has a right to pass an act lowering or raising the salaries of district judges. In fixing the amount of such salaries, the Legislature may take into consideration the population and size of the county, its taxable values, and the general conditions existing therein. The Legislature in this instance has seen fit to place certain additional duties upon the district judges in certain counties and has allowed extra compensation for such service. In doing this, the Legislature acted clearly within its .constitutional powers. Clark v. Finley, 93 Tex. 171, 54 S. W. 343, 346.

The case just cited involved the construction of the act of 1897 (Laws 1897, p. 5, c, 5) passed at the First Special Session of the "25th Legislature for the purpose of limiting the compensation of certain officers and reducing the fees of office. The act specially reduced certain fees of sheriffs and constables in certain counties of the state. It was contended that the act was discriminatory, that the classification was unreasonable and was enacted for the purpose of evading the Constitution. Chief Justice Gaines, in the opinion, squarely met the issue and declared the law in the following words: “A legislature may reach the conclusion that the compensation of certain officers in certain counties of the state is excessive, while in others it is not more than enough. By the reduetion of the fees of office throughout the state they may correct the evil in those in' which the compensation is too great, but they would probably inflict a greater evil by making the compensation too small in all the others. In such a case it becomes necessary to make the law applicable to some, and not to all. There must be a classification. That classification may be either by population or by taxable values. One legislature might do, as the legislature of Texas did, make the classification by population; another, as was done by the legislature of Arizona, might make the taxable values of the respective counties the basis of the classification. Shall the courts inquire which is correct? Can they say that the work of an officer is not, in some degree, proportionate to the population of his county? On the other hand, can they say that, the more the property of a county, the more the crime? To ask these questions is to make it apparent that they are questions of policy, determinable by the political department of the government, and not questions the determination of which by the legislature is subject to review by the courts:”

Question No. 3 involves the construction of section 51 of article 3 of the Constitution. The pertinent part of that section reads as follows: “The Legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporations whatsoever.”

It is contended that the act involved here violates the foregoing provision of the Constitution, in that it authorizes the payment of $1,500 to certain district judges as additional compensation, to be paid monthly out of the general funds of such county, upon the order of the commissioners court. The language of this act plainly shows that it was the outstanding purpose of the Legislature .to place the care and control of minors in such county or under the jurisdiction of any of its courts under a more direct supervision of the district judges of those,counties. To that end, this law was enacted. In addition to the many duties conferred upon district judges, the Constitution provides that they shall “be conservators of the peace” (section 12, art. 5). The Legislature evidently thought that by placing the minors under a more direct supervision of the district judges of those counties, it would be helpful to the minors and beneficial to the public welfare. It is quite plain that if the powers conferred upon the district judges over minors are properly exercised, it will have a tendency to lessen crime and reduce the expenses of the courts. Considering our form of government, a more direct, efficient, and responsible method could not be designed. The law is wholesome and, if properly executed, its purposes should be accomplished.

The Constitution prohibits the Legislature from appropriating the public money to other than strict governmental purposes. If the amount designated to be paid the district judges in addition to their regular salary for the duties imposed is not for services of a governmental nature, then, of course, the law in that respect is void. The authorities hold that the county is an arm of the state, a political subdivision thereof, and in view of the relations of the counties to the state, their functions and uses, the state government must of necessity function through the counties as its agents. That the state may use the counties for this purpose is now well established. The use of counties as agents of the state in the discharge of the state’s duty is not prohibited by section 51 of article 3 of the Constitution. Aransas Pass v. Keeling, 112 Tex. 339, 345, 247 S. W. 818; Bexar County v. Linden, 110 Tex. 339, 344 to 348, 220 S. W. 761; City of Galveston v. Posnainsky, 62 Tex. 118, 127, 50 Am. Rep. 517; Weaver v. Scurry County (Tex. Civ. App.) 28 S. W. 836.

Question No. 3 should be answered: “No.”

We recommend that the questions be answered as above indicated.

CUBETON, Chief Justice.

The opinion of the Commission of Appeals answering certified questions is adopted and ordered certified.


author: LATTIMORE, Judge.

text:
    TALAMENTEZ v. STATE.
    No. 15919.
    Court of Criminal Appeals of Texas.
    May 3, 1933.
    L. J. Brucks, of Hondo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, four years in the penitentiary.

The indictment in this case contained four counts; three charging burglary and one charging theft. At the request of appellant, the state elected to try upon the count charging theft. Our attention is attracted by the fact that said count fails to allege the ownership of the property said to be stolen. Such allegation is uniformly held to be necessary. The conviction cannot stand in the absence of a good indictment.

The judgment will be reversed, and the cause remanded.


author: MORROW, Presiding Judge.

text:
    PARSONS v. STATE.
    No. 15921.
    Court of Criminal Appeals of Texas.
    May 3, 1933.
    Reynolds & I-Ieare, of Shamrock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft, a misdemeanor, is the offense; penalty assessed at a fine of $100 and confinement in the county jail for sixty days.

The complaint is defective in failing to state that the appellant fraudulently took the property. The information contains the word .“fraudulently,” but in that respect is Aot supported by the complaint. The case of McNeely v. State (Tex. Cr. App.) 54 S.W.(2d) 512, is cited in support of the appellant’s contention. State’s counsel before this court concedes the invalidity of the conviction.

The judgment is reversed, and the prosecution is ordered dismissed.


text:
    CARTER v. STATE.
    No. 15714.
    Court of Criminal Appeals of Texas.
    May 3, 1933.
    R. C. Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The unlawful sale of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

From the testimony of J. P. Yoes, a youth 15 years of age, who had resided in Tuscola all his life, it appears that on or about November 14, 1931, he bought a pint of whisky from the appellant. The sale took place between the feed store and Dickenson Motor Company. Toes paid the appellant $1 for the whisky. The witness drank part of the whisky and others drank the rest of it. He did not see the appellant at the party, which was held at the home of John Graham, that night. On cross-examination Toes said that he was unable to give the day of the week, hut was able to identify the appellant as the person from whom the whisky was purchased. From the testimony of the witness we quote: “You ask me how I identify that he sold me a pint of whisky on the 14th of November, and I answer I don’t remember when it was. I don’t remember telling anybody about me buying this whisky. Nobody was with me when he is supposed to have sold me this whisky. It was just a transaction between him and myself.”

The. witness went to the party the night of the same day on which the transaction o'c-eurred. He was later examined before the grand jury. He had never bought any whisky before or since. No one was present except the purchaser and the seller. From the witness we quote further: “I cannot identify that date. I do not know whether it was the 14th of January or the 14th of November— I can’t remember. It is not all guess work on my part.”

The witness appeared before the grand jury at the November term, 1931. He did not remember whether or not he was before the grand jury on the 19th of January, 1931.

Appellant testified in his own behalf that he had heard the testimony of Toes about purchasing whisky from him on the 14th of November. From the appellant’s testimony we quote: “I did not sell him (Toes) any whisky on that date. I did not sell him any whisky on any date. I never sold any whisky in my life. I did not deliver any whisky. I heard him testify as to a party at John Graham’s that night of the day this is supposed to have taken place. I was not at that party. * * * I don’t remember whether it was the 7th or the 15th that I left and went to Corpus Christi. * * * I don’t remember whether I was there in Tuscola on that date or not. I have been in Corpus Christi since then. I went to Corpus Christi and stayed until some time in January.”

On cross-examination the appellant testified: “I was arrested in Corpus Christi in this case. I don’t remember the date that I was arrested, but it was this year. I was indicted in November, 1931. I don’t remember exact- ■ ly what month this year it was that I was arrested; I think, though, it was in February.”

Appellant testified that he had been convicted of driving a ear while intoxicated. The indictment was filed on the 20th of November, 1931. On the 7th day of July, 1932, the appellant filed his motion for new trial, to which is attached the affidavits of several witnesses.

In his affidavit, H. W. Carter (appellant’s father) states that the appellant left home about the 1st day of November, 1931. The witness swears' positively that the appellant was not in Taylor county on the 14th of November, 1931. The witness stated no facts other than those based upon his conclusion.

Amos Walden testified by affidavit that he /was in the employ of the Dickenson Motor Company on November 14, 1931, on which day neither the appellant nor Toes came into the building, nor was the appellant in Tus-cola on that day; the witness was a brother-in-law of the appellant; the witness had given a party for his daughter on her birthday on November 12, 1931; that the appellant did not attend the party for the reason that he had left Tuscola for Corpus Christi, having left Tuscola on or about the first of November, 1931.

Another witness, B. E. Gladden, testified that appellant had left about the 8th of November, 1932. The witness did not hear of him again until he heard that appellant had been brought from Corpus Christi and placed in the jail of Taylor county.

Jno. Pearson, T. A. Newby, and Joe Kin-nison made affidavit to the effect that they knew the appellant, Buck Carter, and saw him at various times in the city of Corpus Christi, where they found him staying around the terminal of the Red Arrow Freight Dines. They knew that appellant had been in West Texas and came to Corpus Christi approximately between the 1st and 5th of November, 1931. The affidavit of T. A. Newby was to the effect that while driving back from Sin-ton he picked up the appellant at Taft and brought him to Corpus Christi; that appellant was on his way from West Texas at that time. From the affidavit we quote: “We all feel reasonably certain that he was not in West Texas on the 14th day of November^ 1931.”

■No bills of exception are found in the record ; nor does it appear that the evidence in. the affidavit was newly discovered. We have found in the record no brief for the appellant.

The evidence is deemed sufficient to support the conviction.

The judgment is affirmed.


author: CALHOUN, Judge.

text:
    Ex parte READHIMER.
    No. 16026.
    Court of Criminal Appeals of Texas.
    April 26, 1933.
    L. G. Mathews, of Floydada, and Dan M. Cook and R. C. Joiner, both of Plainview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Relators J. R. Readhimer and V. A. Read-himer are under complaint charging them with the offense of murder of one Stokes Campbell.

Upon the habeas corpus hearing before the Judge of the 110th judicial district bail was denied each of said relators, from which order this appeal' is prosecuted by relators.

The state’s testimony coming from two eyewitnesses was to the effect that relators sought the deceased on a street in Floydada, and relator Y. A. Readhimer held deceased while relator J. R. Readhimer shot him to death, two shots taking effect in his back. The testimony of the state was to the further effect that, after deceased had fallen, mortally wounded, relator J. R. Readhimer. fired two other shots into his head. During the entire transaction deceased was calling for help. Appellants sought by the testimony of two witnesses, one of whom was the son-in-law of relator J. R. Readhimer and the other a son of the relator J. R. Readhimer, to show circumstances in mitigation of the homicide.

The decision of the trial court denying bail, while not conclusive on this court,, is entitled to and is accorded great weight. Ex parte Hanks, 97 Tex. Cr. R. 387, 261 S. W. 1027; Ex parte Lebo, 88 Tex. Cr. R. 435, 227 S. W. 187; Ex parte Sparks, 81 Tex. Cr. R. 618, 197 S. W. 873.

Because there is evidence in the record of mitigating circumstances does not necessarily require a reversal of the decision of the trial judge denying bail. The source of the evidence will be considered in determining whether the denial of bail was erroneous. See Ex parte Polk, 99 Tex. Cr. R. 106, 268 S. W. 464; Ex parte Wallace, 108 Tex. Cr. R. 400, 1 S.W.(2d) 886.

The learned trial judge had the witnesses before him and heard all of their testimony. He was in a better position to determine as to the credibility of said witnesses and of the weight to be given to their testimony than we are. We .deem it unnecessary to enter into a full discussion of the evidence in a proceeding such as this, but we have carefully examined the statement of facts before us and we are unable to reach the conclusion that the trial judge abused his discretion in denying bail.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


text:
    BLACK v. STATE.
    No. 15699.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Appeal Reinstated May 3, 1933.

      Max Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State..
   MORROW, Presiding Judge.

Adultery is the offense; penalty assessed at a fine of $150.

This court is unable to consider the appeal on its merits because of the failure of the appeal bond to comply with article 831, C. C. P. 1925, prescribing the requisites of an appeal bond in a misdemeanor case, declaring that it must appear from the bond that the accused has been convicted of a misdemeanor. The omission of such a recital in the bond deprives this court of jurisdiction of the appeal. However, the appellant is privileged to correct the bond by amendment. Twenty days from this date will be allowed within which to perfect the appeal. See article 835, C. C. P., also Berry v. State, 83 Tex. Cr. R. 210, 203 S. W. 901; Joiner v. State, 89 Tex. Cr. R. 408, 232 S. W. 333.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The appeal was dismissed o’n March 15, 1933, for want of a sufficient appeal bond. Since the bond now before the court complies with the statute, the appeal will be reinstated.

The indictment contains the following averment: “* * * W. E. Elroy and Etta Black * * * in Lubbock County, and State of Texas, did then and there unlawfully and wilfully live together, and have carnal intercourse with each other, the said W. E. Elroy then and there being lawfully married to another person then living.”

From the witness Myrtis Maynard it is made to appear 'that the appellant and Elroy, a married man, came to Lubbock in company with each other and claimed to be “Holiness Preachers.” They stayed at the home of the witness, but slept in different rooms. The appellant slept with the mother of the witness. On one occasion they went into a room together and spent the night therein.

The state introduced circumstances going to show that the appellant and Elroy occupied the same room and same bed upon one occasion in Llano county.

Appellant testified, and denied any sexual relations with Elroy, and claimed that the incriminating testimony was fabricated.

The witness R. D. Maynard testified that on one occasion he saw Elroy pull the appellant down in his lap and kiss her; that he had seen that more than once. He saw them go to bed in his own house one night. He did not see them together in the house, but saw them go into the room in which they had previously stayed one night.

The witness L. W. Maynard testified as follows: “Elroy and Mrs. Black used the same bed those nights. I seen them over here, in the City Dump Ground in a tent. One of us always slept out there with them. * * * Me and my wife just had one bed up in that house. Elroy would sleep in the house one night with Etta Black and outside the next.”

Reiger, a deputy sheriff, testified that he crawled in a window, slipped to the back door, and let a companion into a mission. They went to the front part of the building, where they saw. the appellant tucking the covers around a man. He was sick, and was lying on something that looked like a davenport. The bed in the back room did not show that it had been used that night, but the bed in the front room had two pillows which had the appearance of having been used by two people. The testimony of the officer was denied by the appellant.

The testimony of Claude Knee is in conflict with that of the officer mentioned above. The witness claimed that appellant and his wife slept together in the living quarters and that Elroy stayed in the room with Knee. On cross-examination the witness admitted that during one night Elroy and appellant occupied the mission, but as to what they did the evidence is' entirely silent.

Mrs. Knee testified corroborating the testimony of her husband to the effect that dur-tag the sojourn of the appellant and Elroy in the mission the appellant slept with the witness while Elroy slept with Mr. Knee.

Appellant sought to have the jury instructed that the testimony tending to show illicit relations between the appellant and Elroy outside the county of Lubbock could be used as bearing upon the character and credibility of the appellant, but that she could not be convicted on account of acts done in another county. Apparently the instruction should have been given.

Prom .the opinion of Judge hurt in the case of Funderburg v. State, 23 Tex. App. 392, 5 S. W. 244, the following quotation is taken:

“Bearing directly upon these acts and conduct of appellant and Jackson, the court was requested to instruct the jury that .‘the venue in this case is laid in Bosque county, and you will not consider the evidence before you of acts in other counties for the purpose of determining the defendant’s guilt in Bosque county.’
“While this charge is not strictly correct, it clearly called to the attention of the court the proper rule of law applicable to that portion of the evidence. In corroboration of the witnesses for the state, these subsequent act's, though occurring in other counties, may be considered. But, certainly, appellant should not be convicted in Bosque county for adulterous acts committed in another county; and the jury should have been so in■structed.”

Appellant presented several bills of exception. Bill No. 1 is quite lengthy, and involves an objection to the introduction of several items of evidence, and in that particular the procedure followed by the appellant in preparing the bill is objectionable. However, the court qualified the bill. Appellant asserts in an affidavit that her bills of exception were qualified without her consent and filed without her knowledge. The bills, as qualified, appear to have been filed on September 30, 1932. An extension order allowed by the trial judge, as understood, would have permitted the bills to be filed on October 15, 1932. Appellant claims in her affidavit that bills Nos. 1, 2, 3, and 4 were qualified without her knowledge or consent and filed within the time required by law. The affidavit of the appellant containing what she calls her exception to the action of the court in qualifying her bills was also filed within the time allowed by law for filing the bills of exception and statement of facts. Primarily, the trial court is without authority to qualify a bill of exception. It can legally be done alone with the consent of the accused or his attorney. When the bill appears with the qualification in the record, the consent of the appellant or his counsel will be presumed upon appeal, in the absence of an affirmative act upon his part, verified by the trial judge or bystanders, asserting his right to have the bill filed as prepared. When, as in the present case, it is claimed by the appellant that her bills of exception were qualified without her consent, he should have proceeded as though there had been an absolute refusal to approve her bills; that is to say, she should have prepared and filed a bystanders’ bill, setting up the matters contained in his bill, omitting the objectionable statement. That the trial judge has no right to qualify a bill of exception filed without the consent or acquiescence of the appellant had been declared not only in the statutory provisions governing the subject but in many decisions of this court. Some of them will be found in the following sections of Tex. Jur. vol. 4, namely, sections 190, 191, 192, 194. 195, 196. Because of the situation in which the appellant found herself in the present instance, her remedy was to prepare and file a bystanders’ bill of exception, setting up the complaints that were contained in his original bill of exception and proving the bill by bystanders. See Kilpatrick v. State, 85 Tex. cr. R. 172, 211 S. W. 230; McCarty v. State, 107 Tex. Cr. R. 589, 298 S. W. 575; Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; also Tex. Jur. vol. 4, § 198.

Prom what has been said, it is manifest that this court can only consider the bills of exception in the present instance with the qualification. So considered, we think the bills present no error. In the light of the evidence, however, from which it definitely appears that some of the acts of intercourse relied upon took place in a county other than that in which the prosecution is laid, and that other acts were proven which were not shown to have taken place in Lubbock eoun.ty, the failure of the court to amend his charge so as to place proper restriction upon such acts as the jury found did not take place in Lubbock county, we think was error which requires a reversal of the judgment, which is accordingly ordered.


text:
    FARMERS’ STATE BANK OF GEORGETOWN et al. v. ROBERTS et ux.
    No. 7832.
    Court of Civil Appeals of Texas. Austin.
    April 26, 1933.
    Rehearing Denied May 17, 1933.
    Sam Burnap and Wilcox & Graves, all of Georgetown, for appellants.
    W. C. Wofford, of Taylor, and Hal Browne and David Weintraub, both’of San Antonio, for appellees.
   BLAIR, Justice.

Suit by appellees, P. E. Roberts and his wife, against appellant Farmers’ State Bank of Georgetown and the sheriff of Williamson county, to restrain the sale of certain land under writ of attachment to satisfy a judgment in favor of appellant bank against P. E. Roberts, and to remove as cloud on title the asserted attachment lien, because the land was the homestead of appellees on the date of the levy of the writ of attachment.

The sole issue submitted to the jury and the answer thereto are as follows;

“Had the plaintiff prior to the levying of the writ of attachment, to-wit, April 25th, 1929, abandoned as his homestead the land described in his petition?
“The word ‘abandon’ as used in this charge, means the leaving of a homestead with the fixed intention never to return to it for the purpose of using it as a home. Answer yes or no.” Answer: “No.”

Judgment was accordingly rendered for appellees as prayed; hence this appeal.

We do not sustain the contention of appellant bank that the evidence showed as a matter of law that P. E. Roberts had abandoned the land as his homestead prior to the levy of the writ of. .attachment. The issue of abandonment was clearly one for the jury, and the evidence supporting the jury’s finding may be briefly stated as follows:

Roberts bought the 62<½, acres of land in 1921, and he, his wife and daughter, moved on the land in 1925, making a crop on the place for that year. Mrs. Roberts lost her health, and they went “to San Antonio temporarily, thinking she might gain her health back.” Roberts obtained employment and his employer furnished him a house to live in, but shortly thereafter Mrs. Roberts went to- Carlsbad- to the tuberculosis sanitarium, where she remained a short time. She notified her husband that she was returning to San Antonio. Roberts notified his employer of the expected return of his w.ife, and the employer told him that, since Mrs. Roberts had been in the tubercular sanitorium, he did not want her to live in the house he had been furnishing Roberts. Roberts told him he did not have time to rent a house, or that there were no rent houses; and his employer sold him a small house next door to where Roberts had been living, with no down payment, but to be paid for at $25 per month, like rent. This property was deeded to Roberts in February, 1927, and from this time Roberts and his wife and their married daughter and her husband lived in the house until September, 1928, when Roberts deeded the property to his daughter, since which time he has lived at another place; he being separated from his wife. Mrs. Roberts lived on the farm a little while in 1928, but returned to and is now living with her daughter in the San Antonio house. The writ was levied in April, 1929. When Roberts left his farm he left his tools, implements, and practically all his household furniture', not knowing how long he would be gone, but that due to the continued illness of Mrs. Roberts these were later sold. Since Roberts left the farm, both he and his wife have been back, and both testified that they have at all times and still claim it as a homestead, and that it is all the land owned by them in Texas. Mrs. Roberts testified that she tried last year to make arrangements to farm the place herself, but was unable to do so, and that the only reason she was not living on the farm now is because she is not physically able to do so.

Appellant offered testimony of declarations of Roberts, to the effect that he claimed the San Antonio property as his home; that he offered to execute a deed of trust on the 62½ acres in suit to secure a loan; that, after he purchased the San Antonio property, he tried to sell the 62½. acres; and that he voted in San Antonio. It is the contention of appellant that this evidence brings this case within the rule announced in the case of First Nat. Bank v. Wallace (Tex. Civ. App.) 13 S.W.(2d) 176, 183, “That the best evidence of homestead abandonment is that, a new and permanent home has been acquired”; and in which case the court instructed a verdict that the homestead had been abandoned. The Commission of Appeals, in an- opinion adopted by the Supreme Court [Wallace v. First Nat. Bank, 120 Tex. 92, 35 S.W.(2d) 1036], reversed the judgment based upon the instructed verdict, and held that the issue of homestead abandonment was for the jury. The facts in that case are much stronger in favor of abandonment than are the facts in this case. See, also, the recent case of Blanks v. First Nat. Bank of Seymour (Tex. Civ. App.) 44 S.W.(2d) 393, where it was held under much stronger facts of abandonment than are the facts in this ease, that the question of abandonment .was for the jury.

Nor do we sustain the contention of appellant that the charge on abandonment was erroneous, “because the same did not inform the jury that, even though at the time the plaintiffs left and moved away from the land in controversy, they might have at that time had a fixed intention to return and occupy same as a homestead, still the intention not to return and occupy said land as a homestead could have been formed at any time after leaving the land in controversy, and before the levy of the attachment.”

When the issue and-the definition of abandonment above quoted are construed together, they simply asked the jury to find whether or not appellees, prior to the time the writ of attachment was levied, left their homestead with the intention never to return to it as a homestead. A similar definition was approved in the case of Cline v. Upton, 56 Tex. 319: “Abandonment is a question of fact to be determined like any other fact, and considering the beneficent purpose of the exempt tion, ought never to be found to exist unless the removal and accompanying facts clearly show that the party in removing never intended to return to the homestead and use it as a home. * * * The fact of removal, coupled with an intention never to return to the homestead, constitutes an abandonment, and nothing less does.” See, also, Armstrong v. Neville (Tex. Civ. App.) 117 S.W. 1010; and Wharton v. Mtg. Bond Co. (Tex. Civ. App.) 48 S.W.(2d) 519.

The judgment of the trial court will be affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    DALLAS TRUST & SAVINGS BANK v. PICKETT et al.
    No. 1294.
    Court of Civil Appeals of Texas. Waco.
    April 6, 1933.
    Rehearing Denied May 11, 1933.

      McBride, O’Donnell & Hamilton, of Dallas, for appellant.
    W. L. Eason, of Waco, for appellees.
   ALEXANDER, Justice.

This action was brought by Mildred Pickett and her son, Ray Pickett, in trespass to try title to recover from the loan company a house and lot in the city of Waco. In the alternative the plaintiffs sought to cancel certain notes and a deed of trust on the property executed by W. A. Wilkerson to the loan company. The real purpose of the suit was to cancel the notes and deed of trust. The plaintiffs alleged that in July, 1925, Mildred Pickett and Edward Pickett, the latter now deceased, were husband and wife and used and occupied the property as a homestead; that Edward Pickett desired to borrow money and that he and his wife executed and delivered to W. A. Wilkerson a deed to said property and retained a vendor’s lien note in the sum of $3,000 payable to Edward Pickett; that they afterwards assigned said note to the loan company; that Wilkerson executed and delivered to the loan company new notes and a deed of trust, on said property to secure the payment of the money so advanced by the loan company to take up said notes. They alleged that the transaction was a fictitious or simulated one for the purpose of placing a lien upon the homestead and that the loan company had notice thereof and that by reason thereof the purported lien was void. The loan company answered by general demurrer and general denial and pleaded that it was a good-faith purchaser for value of said note and lien, without notice, and that the plaintiffs were estopped to plead that said transaction was a simulated one.

Briefly stated, the facts are as follows; On July 15, 1925, Edward Pickett and W. A. Wilkerson went to the office of M. L. Fan-nin, appellant’s agent in the city of Waco, and stated to him that Pickett and wife had sold the property in question to Wilkerson and that Wilkerson desired to secure a loan on the property for the purpose of paying the balance of the purchase price to the Picketts. They exhibited to said agent a deed to the property from Pickett and wife to Wilkerson, but as the deed was not in the form desired by the agent, a new deed was prepared by which Pickett and wife conveyed the property to Wilkerson for a recited consideration of $4,500 cash and one vendor’s lien note in the sum of $3,000 payable to Edward Pickett sixty days after date. Said agent, M. L. Fannin, took the acknowledgment of Pickett and wife to the deed. At that time Mr. Pickett stated to the agent that he had bought a place at Laferria, Tex., and was going to move to it. Wilkerson immediately made written application to the loan company for a loan of $3,000 with which to take up the Pickett note. Shortly thereafter Wilkerson executed and delivered to Pickett a deed reconveying the property to him and agreed that he had accepted title to the property merely for the purpose of aiding Pickett in putting a loan on the property. The deed of reconveyance, however, was not recorded until long after the loan was closed. The loan was accepted by the loan company at its home office in Dallas, and on August 13, 1925, Wilkerson and wife executed and delivered to the loan company a deed of trust on the'property to secure new notes given for money advanced by the loan company to take up the Pickett note. On August 18,1925, Pickett and wife by written assignment duly acknowledged, sold, and assigned to the loan company the $3,000 note executed to them by Wilkerson, and on August 28, 1925, the loan company paid to Pickett the face value of said $3,000 note. At the time the loan company paid the mon-ley to Pickett, he and his wife had moved to Laferria and were living on the property which they had contracted to purchase at that place. At that time the Waco property was being occupied by a Mr. Russell as a tenant of the Picketts. Wilkerson in his application repx’esented that the property was occupied by his tenant. Fannin, the agent of the loan company, visited the premises for the purpose of interviewing the tenant, but finding him away from home, reported to the loan company that the tenant was occupying the property as a tenant of Wilkerson. Pickett was unable to pay for the Laferria property and was compelled to give it up. Pie and his wife later moved to Dallas, where he died. Mrs. Pickett, joined by her son, brought this suit. Mrs. Pickett testified that at the time they moved to Lafer-ria they went there on account of the health of their son and that they never intended to abandon their homestead in the property in question at Waco. A more complete statement of the facts will be found in the report of the case on a former appeal. See (Tex. Civ. App.) 13 S.W.(2d) 195; Id. (Tex. Com. App.) 24 S.W.(2d) 354.

The case was tried before a jury, and upon the verdict of the jury, the trial court entered judgment for plaintiffs canceling the notes and deed of trust. The loan company appealed.

The jury found that the property in question was the homestead of Pickett and wife; that the sale from Pickett and wife to Wilkerson was a pretended one for the purpose of placing a loan on the homestead; that M. L. Fannin, who negotiated the loan, was the agent of the loan company, but that he did not have notice that the deed from Pickett and wife to Wilkerson and the note given in consideration therefor were executed for the purpose of fixing a lien on Pickett’s .homestead; and that the loan company was caused to make the loan on the faith of the deed from Pickett and wife to Wilkerson. The jury further found that at the time the loan was consummated the property was occupied by a tenant of Edward Pickett. Special issue No. 9, and the answer of the jury thereto, were as follows; “Did the defendant Dallas Bank & Trust Co. purchase from Edward Pickett the $3000.00 vendor’s lien note retained in the deed from Edward Pickett and wife, Mildred Pickett, to W. A. Wilkerson, dated July 15, 1925, before maturity and without any notice or knowledge that the conveyance to Wilkerson was a pre.tended one and not an actual sale?” To which the jury answered: “No.”

The appellant contends: First, that there •is no evidence to support the answer of the jury to special issue No. 9 and that we should reverse and render the judgment in favor of the appellant; and, second, if it be mistaken in this, it contends that the evidence was insufficient to support the verdict of the jury and that we should reverse and remand the case for a new trial. The evidence is undisputed that the loan company purchased the $3,000 note executed by Wilkerson to Pickett before maturity and for a full face value. The only question to be determined, therefore, is whether the loan company purchased the note without notice or knowledge that the conveyance from Pickett and wife to Wilkerson was a simulated one. The only representative of the company that participated in the transaction at Waco was M. L. Fannin. The jury found that he did not know .or have notice that the sale was a simulated one. Therefore, the loan company could not have received notice through him. The only representatives of the loan company at the home office who handled the transaction for the company were L. S. Brindley, assistant secretary of the company and manager of the loan department, and A. A. Long, the attorney who examined the loan papers. Each of these witnesses denied any knowledge whatever that the sale was a fictitious one or that it was an attempt to place a loan upon the homestead. They testified that at the time the loan was closed they had before them and had examined the abstract of title, including the application for the loan, and the deed from Pickett and wife to Wilkerson, and that they would not have made the loan had they known that there was anything irregular about the transaction. Wilkerson in his application for the loan stated that he had purchased the property from Pickett and wife. Pickett was present when the application was signed and was familiar with its contents. 1-Ie informed Mr. Fannin that he had sold the property to Wilkerson and that it was not his homestead. Wilkerson testified that Pickett came to him and requested him to assist him in securing a loan on the property and stated that he- was not living on the property and that it was not his homestead. Wilkerson further testified that he did not inform the company that the transaction was anything other than an outright sale. There was evidence showing that Pickett knew that he could not borrow money on his homestead and that it was necessary for him to simulate a sale in order to borrow the money and that he knew that the loan company would not make the loan if it discovered that the sale to Wilkerson was a fictitious one. He undertook to do, in a secret and circuitous manner, that which he could not do directly. No witness testified to any fact or circumstance showing that the company could have had notice that the transaction was a simulated one other than the information received by Mr. Fannin and the further fact that the property, at the time the loan was closed, was in the possession of Pickett’s tenant. In the face of this evidence the jury found that the company had notice that the sale was a pretended one and not an actual sale.

We are not prepared to hold that the evidence establishes as a matter of law that the company purchased the note without any notice that the sale was a fictitious one, and therefore do not feel at liberty to reverse the case and render judgment in the face of the verdict of-the jury. It is true that the only employees of the company who handled the transaction at the home office testified positively that they had no notice or knowledge that the transaction was a simulated one; but it must be remembered that the^ were interested witnesses, one of them being an officer in the company. There are cases which hold that when the evidence of an interested witness is direct and positive on the point at issue and where there are no circumstances in the record tending to discredit or impeach his testimony, such testimony will justify the appellate court in reversing and rendering judgment. These cases are collated and referred to in Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276, par. 6. However, the general rule as followed by the Supreme Court is that where the witness is interested, his credibility and the weight to be given to his testimony is for the jury and that an appellate court cannot reverse and render judgment on his testimony alone. Goodrich v. Pandem Oil Corp. (Tex. Com. App.) 48 S.W.(2d) 606; Thraves v. Hooser (Tex. Com. App.) 44 S.W.(2d) 916, par. 4; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447, par. 5; Houston E. & W. T. Ry. Co. v. Runnels, 92 Tex. 305, 307, 47 S. W. 971; Sigmond Rothchild Co. v. Moore (Tex. Com. App.) 37 S.W.(2d) 121; Stone v. City of Wylie (Tex. Com. App.) 34 S.W.(2d) 842, par. 6; Farm & Home Savings & Loan Ass’n v. Muhl (Tex. Civ. App.) 37 S.W.(2d) 316 (writ refused); Mitchell v. Federal Mortgage Company (Tex. Civ. App.) 45 S.W.(2d) 649; Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276, 279, and cases there cited. The evidence established, and the jury found, that the property was Pickett’s homestead and that the sale was a fictitious one, made for the express purpose of putting a lien on the homestead. The lien, therefore, under our Constitution, article 16, § 50, was not merely voidable, but was absolutely void, unless the appellant, succeeded in establishing its plea of estop-pel under the rule as laid down in the case of Heidenheimer Bros. v. Stewart, 65 Tex. 321, or in proving that it purchased the note and lien without notice of the vice, as held in the case of Graves v. Kinney, 95 Tex. 210, 66 S. W. 293. See Texas Loan Agency v. Hunter, 13 Tex. Civ. App. 402, 35 S. W. 399, 402; Davis v. National Bond & Mortgage Corp. (Tex. Civ. App.) 45 S.W.(2d) 272, par. 12; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923.

We are of the opinion, however, that the verdict of the jury in answer to special issue No. 9 is so contrary to the great preponderance of the evidence as to require a reversal of the case. We recognize the right of the jury to weigh the testimony, to pass on the credibility of the witnesses, and to determine such inferences as may legitimately be drawn therefrom and that an appellate court ought not to set aside a verdict where there is reasonable support therefor in the evidence ; but where the evidence so clearly and overwhelmingly preponderates against the verdict of the jury as to make it clear that the verdict is wrong, we feel it our duty to set aside the verdict and grant a new trial, Toole v. Moore (Tex. Civ. App.) 203 S. W. 429, par. 4. The evidence in this case shows that the Picketts entered into a deliberate scheme with Wilkerson to so mislead the loan company as to cause it to place a loan upon the property. The loan company exercised great precaution to see that the title was regular in every respect and that the lien was valid. The only witnesses who attempted to testify with reference to the notice or knowledge possessed by the loan company, with the exception of the information given to Fan-nin, testified positively and unequivocally that they had no notice or knowledge that the sale from Pickett to Wilkerson was a simulated one.

The jury found that at the time the loan was consummated the property was occupied by a tenant of Mr. Pickett, and the appellees here contend that their possession through said tenant, as a matter of law, put the loan company upon notice of the homestead claim of the Picketts. The well-established rule is that a purchaser or mortgagee from a vendee whose vendor remains in possession is not, merely by virtue of such possession alone, charged with notice of a secret claim in such property by such prior vendor where the purchaser or mortgagee relies on a deed duly executed and delivered by such prior vendor. It is said that such purchaser or mortgagee has a right to rely upon such deed as a complete divestiture of title. Eylar v. Eylar, 60 Tex. 315; Guaranty Bond State Bank v. Kelley (Tex. Com. App.) 13 S.W.(2d) 69. The appellees concede the rule as laid down in the Eylar Case, but contend that the rule does not apply where such prior vendor is not in possession in person, but is in possession through a tenant. We are unwilling to hold that a prospective purchaser or mortgagee is charged, as a matter of law, with notice of a secret claim in the property by a prior vendor merely because such vendor’s tenant is in possession thereof. The fact that the property was in the possession of Pickett’s tenant could hffve no greater effect than to put the loan company upon inquiry, and charge it with notice of such facts as would have been discovered by a reasonably prudent person under the circumstances. Brooker v. Wright (Tex. Civ. App.) 216 S. W. 196, par. 7. Whether or not a reasonable inquiry by the loan company would have disclosed that the Pick-etts were asserting a secret claim to the property is a question of fact and not a question of law. Gibson v. Morris (Tex. Civ. App.) 47 S.W.(2d) 648, par. 3 (writ refused). In the former opinion of this court, appel-lees’ contention as here made was overruled. See Pickett v. Dallas Trust & Savings Bank (Tex. Civ. App.) 13 S.W.(2d) 193. The Supreme Court reversed the decision of this court, but apparently approved the holding of this court on the point here under consideration, by using the following language: “The other assignments of error, which do not relate to, or embrace, the question of notice, or want of notice, .by the defendant in error, growing out of the acts of the witness Fan-nin, with relation to the conveyance by Pickett and wife to Wilkerson, the execution of the note by Wilkerson, and the application of Wilkerson to the defendant in error for a loan to take up the note and kindred matters, having been properly disposed of in the opinion of the Court of Civil Appeals they should be overruled.” Pickett v. Dallas Trust & Savings Bank (Tex. Com. App.) 24 S.W.(2d) 354, 359.

The appellees cite in support- of their contention Moore v. Chamberlain, 109 Tex. 64, 195 S. W. 1135, and Pondrum v. Gray (Tex. Com. App.) 1 S.W.(2d) 278. These cases do apparently support the contention here made by appellees, but when the facts of these cases are carefully analyzed it will be seen that they do not come within the rule as laid down in Eylar v. Eylar, and that the holding therein would have been the same had the prior vendor been in possession of the property in person and hot by tenant. In Moore v. Chamberlain, supra, the Chamberlains," who were claiming a secret interest, in the land, were remote grantors who had apparently parted with their title to the land approximately ten years prior to the purchase thereof by Moore, who claimed to have purchased without notice, yet the Chamberlains’ tenants were still in possession of the land. In Pondrum v. Gray, supra, H. Lawson Gray, whose tenant was in possession of the land at the time McFadden acquired title thereto, was a remote grantor who had parted with his title approximately three years prior to the time when McFadden, who claimed to have purchased without notice, acquired his title thereto. Moreover, H. Lawson Gray was not claiming the property -by virtue of a secret title retained at the time of his prior conveyance to Sam Lee Gray, but was claiming title by virtue of”a subsequent unrecorded reconveyance to him by Sam Lee Gray. His claim of interest was not one' inconsistent with, nor which should have been retained in, his prior conveyance. His interest was not such as could have been shown in his prior conveyance. See Bumpas v. Zachary (Tex. Civ. App.) 34 S. W. 672: The rule as laid down in the Eylar Case was applied in a case where the one claiming to be a purchaser without notice had purchased directly from the immediate vendee of the vendor who was in possession of the property, and was based on the theory that a subsequent purchaser has a right to presume that his vendor has allowed the prior vendor to remain in possession of the property for such a reasonable time as would be sufficient to enable him to remove from the premises. Cameron v. Romele, 53 Tex. 238, 243. Such presumption ought not to be indulged where a prior vendor or his tenant has remained in possession for a number of years, as was contended for in the cases relied on by appellees. Therefore, we are of the opinion that the rule laid down in those cases does not apply to the facts of this case.

In the case at bar, the deed from Pickett and wife to Wilkerson was dated July 15, 1925. The deed of trust from Wilkerson to the loan company was dated August 13, 1925. The loan company paid the proceeds of the loan to Pickett on August 28, 1925. It will be seen, therefore, that only a short interval of time elapsed from the time of the execution of the deed to the time the loan was closed. Moreover, after Pickett and wife had placed their tenant in possession, they appeared before appellant’s agent and -signed, acknowledged, and delivered to the loan company an assignment of the vendor’s lien note which they had received from Wilkerson as a part of the purchase price of the land. In this assignment they acknowledged that they had conveyed the property to Wilkerson and recited a conveyance of the note and lien and all their right, title, and interest in the land to the loan company. This acknowledgment on their part amounted to a declaration to the loan company that the note represented a genuine indebtedness due by Wilkerson to them, as a part of the purchase price of the land, under a conveyance executed by them for a valuable consideration in a bona fide transaction. Pickett v. Dallas Trust & Savings Bank (Tex. Com. App.) 24 S.W.(2d) 354, at bottom page 357. There may be some difference in the effect to be given to the possession of property through a tenant by a prior vendor where the tenant was in possession at the time of the conveyance and simply remained in possession, and where the tenant has been placed in possession thereof after the execution and delivery of the deed; but in this case the Pick-etts executed the assignment of the vendor’s lien note and thereby ratified their sale to Wilkerson after they had placed their tenant in possession. Their possession therefore through such tenant did not outweigh their solemn declaration contained in the assignment. Furthermore, at the time of the execution and delivery of the assignment, the Picketts were living at Laferria on other property owned by them and their mere possession of the Waco property through a tenant was not sufficient to put the loan company upon notice as a matter of law that they were still claiming the Waco property on which they did not then reside as their homestead. Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209.

Believing as we do that the verdict of the jury was contrary to the great weight of the evidence, we reverse the judgment of the trial court and- remand the ease for another trial.