author: HUGHES, Justice.

text:
    Randy M. GRIFFIN and Tom Griffin d/b/a Griffin Limousin Ranch, Appellants, v. CITIZENS NATIONAL BANK IN WAXAHACHIE, Appellee.
    No. 17887.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 20, 1977.
    Rehearing Denied Nov. 17, 1977.
    Boyd, Veigel & Gay, Inc., and William M. Boyd, McKinney, for appellants.
    Jenkins & Jenkins, Warick H. Jenkins, Waxahachie, for appellee.
   OPINION

HUGHES, Justice.

Citizens National Bank in Waxahachie sued Randy M. Griffin and Tom Griffin on a promissory note. Trial court granted a summary judgment on Bank’s motion. Griffins appeal.

We affirm.

Bank alleged that: Griffins made a promissory note to Dorcell Young for $15,-000.00 on June 9, 1975;

Young endorsed and delivered same to Bank;

Bank is still the lawful owner and holder of note;

First installment matured June 9,1976 in the principal amount of $5,000.00 still unpaid, plus interest at 9% per annum from June 9, 1975.

Bank attached to Exhibit A of its original petition (sworn) a photocopy of a note.

Griffins filed a sworn original answer in the form of a general denial plus an allegation that Young misrepresented the paternity potential of the bull for which the note was given; that Bank, prior to the sale and purchase of said bull, was aware of the misrepresentation; and “at all times material hereto” Bank was aware of the failure of consideration.

By defendant’s answers to “Plaintiffs’ Requests for Admissions” filed in the papers of the cause Griffins admitted:

“1. Reference is made to Exhibit A of Plaintiff’s Original Petition on file herein, and in connection therewith:
“(a) That such exhibit is a true and correct copy of an original instrument signed by Randy M. Griffin and Tom Griffin.
“(b) That the signatures of Randy M. Griffin and Tom Griffin appear on the original instrument of which such exhibit is a copy.
“(c) That the signatures on such exhibit are true and correct copies of the signatures of Randy M. Griffin and Tom Griffin.
“(d) That Randy M. Griffin and Tom Griffin signed the original instrument of which such exhibit is a copy.
“(e) That the original of such instrument was signed by the individuals noted therein.
“(f) That the original of such instrument was signed by Randy M. Griffin and Tom Griffin in Denton County.
“2. That on the 9th day of June, 1975, in Denton County, Texas, Defendants Randy M. Griffin and Tom Griffin executed and delivered a promissory note made payable to Dorcell Young, promising to pay to the order of Dorcell Young at Denton, Texas $15,000.00 with interest thereon from June 9, 1975 and on all past due interest from its maturity at the rate of 9% per annum until paid, interest payable annually, and principal payable $5,000.00 due on June
9, 1976, and $10,000.00 due on June 9, 1977.
“3. That the Defendants Randy M. Griffin and Tom Griffin, nor either of them, have made no payment of either principal or interest on the above described note, either to Dor-cell Young or to the Citizens National Bank in Waxahachie, Plaintiff herein.”

Bank filed a motion for summary judgment which had an affidavit by the president of Bank attached which recited in part:

“On the 9th day of June, 1975, in the City of Denton, County of Denton, Texas, the Defendants Randy M. Griffin and Tom Griffin, for a valuable consideration, executed and delivered to Dorcell Young a promissory note promising to pay Dor-cell Young, or order, at Denton, Texas, the sum of $15,000.00, in two (2) installments of $5,000.00 on June 9, 1976, and the balance of $10,000.00 on June 9,1977, in each case with interest at nine (9%) percent per annum. On the 30th day of June, 1975, for value received, Dorcell Young endorsed and delivered said promissory note to Citizens National Bank in Waxahachie, which Bank is still the lawful owner and holder of said promissory note.
“Said note payment of $5,000.00 was not paid as provided, and after June 9, 1976, demand was made by the Citizens National Bank in Waxahachie on the said Randy M. Griffin and Tom Griffin for such payment, but to the date of this affidavit no payment of any kind has been received by the Citizens National Bank in Waxahachie from Randy M. Griffin or Tom Griffin, the makers thereof.”

Griffins filed two affidavits in contravention of motion for summary judgment executed by each of them, both of which alleged as total grounds of contravention as follows:

“Prior to the 9th day of June, 1975, on which day this Defendant has admitted executing and delivering a Promissory Note to Dorcell Young, and at the time of the endorsement and delivery by Dorcell Young of said Promissory Note to the Plaintiff, Citizens National Bank of Wax-ahachie, said Plaintiff had actual knowledge of this Defendant’s defense to the underlying contractual obligation, by virtue of its President’s knowledge of the transaction, and therefore takes such instrument subject to the defenses raised by this Defendant.
All of the facts set forth herein are within my personal knowledge, and such allegations are true and correct.”

Trial court granted a summary judgment as prayed by Bank reciting as its basis therefor:

“[T]he Court having considered the Plaintiff’s Motion, together with the pleadings, admissions and affidavits on file herein, as well as the argument of counsel, the Court finds that there is no genuine issue of any material fact, that the Claim of Plaintiff against Defendants is liquidated and founded upon an instrument in writing, and that Plaintiff is entitled to judgment as a matter of law.”

Griffins’ point of error no. 1 states that Bank failed to establish, as a matter of law, that it was currently the owner and holder of the subject note. Griffins say that Bank’s failure to produce for the trial court the original, sworn, or certified copy of the note defeats its summary judgment motion and cites Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162 (Tex.1963); Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970).

Chief Justice Greenhill, in Perkins, supra, laid down the rule, adopting the dissenting opinion in Larue, supra, requiring in summary judgment proceedings that the original note (or sworn or certified copy thereof) be attached, stating: “[T]he general denial of the defendant places the burden on the plaintiff to prove that he is the owner or holder of the note.”

In this case, we hold that Bank discharged the burden in the sworn affidavit of its president (uncontroverted) declaring Bank to be the lawful owner and holder of the note on September 15, 1976. We overrule Griffins’ point of error no. 1.

In point of error no. 2, Griffins urge that they raised lawful affirmative defenses which placed in issue Bank’s status as a holder in due course, and no competent evidence of Bank’s status as such was before the court. As pleader of the affirmative defense, the burden, even in a summary judgment proceeding, is upon the pleader. P. T. Poultry Growers v. Darr Equipment Co., 537 S.W.2d 773 (Tex.Civ.App.—Tyler, 1976, no writ).

In this case, Griffins pleaded:

“[T]hat the note in question was given for the sole consideration of a bull ‘proven to be a [sic] easy-calving bull, who consistently throws good calves with great performance that are highly accepted across the land.’ Such a bull was not received by the Defendants.
“Ill
“Defendants would show that Plaintiff was aware of the misrepresentation made to Defendants prior to the sale and purchase of the above named bull and that Plaintiff was at all times material hereto aware of the failure of consideration in the giving and making of the note in question as part payment for a percentage ownership of said bull.”

The two identical affidavits executed by each of the Griffins in contravention of Bank’s motion for summary judgment each state in the only “contravening” paragraph:

“Prior to the 9th day of June, 1975, on which day this Defendant has admitted executing and delivering a Promissory Note to Dorcell Young, and at the time of the endorsement and delivery by Dorcell Young of said Promissory Note to the Plaintiff, Citizens National Bank of Wax-ahachie, said Plaintiff had actual knowledge of this Defendant’s defense to the underlying contractual obligation, by virtue of its President’s knowledge of the transaction, and therefore takes such instrument subject to the defenses raised by this Defendant.”

This is all of summary judgment evidentiary offer of Griffins. We hold that these affidavits fall short of summary judgment proof as they do not reveal any facts on which the affirmative defense could be based. Pleadings alone although sworn, are not competent summary judgment proof. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971). We overrule point of error no. 2.

Affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Frederick Gene SHEPPARD et al., Appellants, v. John BECK et al., Appellees.
    No. 17895.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 20, 1977.
    Rehearing Denied Nov. 17, 1977.

      Mock & Pleniken, and William J. Fleniken, Jr., Fort Worth, for appellants.
    Heard L. Floore, and W. Wallace Brady, Fort Worth, for appellee John Beck.
    Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellee Leonard Boyd.
   OPINION

MASSEY, Chief Justice.

Suit was for common law damages by the Sheppards because of personal injury and property damage sustained as a result of nighttime vehicular collision with a horse loose on a State Highway. The horse was the property of defendant John Beck and was being stabled on the premises of defendant Leonard Boyd.

At the conclusion of the trial the case was withdrawn from the jury with take nothing judgment rendered by the court in favor of both defendants. The Sheppards appealed.

The take nothing judgment in favor of defendant Boyd is affirmed. Judgment in favor of the defendant Beck is reversed and remanded for a new trial.

Location where the collision of the Sheppard’s automobile with Beck’s horse occurred is on U.S. Highway 377 immediately south of the City of Denton. Nearby is the 30 acres of land belonging to defendant Boyd, adjacent to the highway on its west side. There is property adjoining the 30 acres which is under lease to Boyd, but the amount is not stated in the evidence. There is absence of description of Boyd’s premises, i. e., whether wooded or cleared (save for some trees which are shown by a partial photograph), and whether generally flat or otherwise.

Boyd provided stables for some six or seven horses belonging to others on his property, including the horse “Duke”, which he had earlier sold to Beck prior to the collision. While charging some other owners of horses, Boyd did not charge Beck for stabling “Duke”. He was accustomed to expect and receive Beck’s aid in maintenance of his premises.

It is undisputed that Duke escaped therefrom on the day of the collision. Beck, who daily went to the premises to feed his horse, and perhaps ride, went to feed Duke in the late afternoon. Duke was not at the stables, and was thought to be in one of the connecting pastures in which horses grazed. Some other horse owners were present and Beck asked one who was his friend to “run him up” out of the pasture to the stables so that he could be fed. Beck waited while the friend rode out and until he returned with several animals he had “run up” on the return trip. Beck was informed by the friend that he had not seen Duke. Clearly there was the incorrect assumption that somehow the friend had “missed” Duke, plus the assumption that he was still in the pasture. Beck, not desiring to remain, obtained the friend’s assurance that he would “chase him on up” to the stables and feed him. Beck left without making any search.

Shortly before 8:00 P.M. (October 17, 1972) at a point near the Boyd premises, Mrs. Sheppard collided with Duke on Highway 377. Incident to the collision she sustained personal injuries. Her daughter was also injured. The Sheppard automobile was wrecked and Duke was killed.

Boyd, having within the hour been informed that there had been an accident, went to the site and observed what had occurred. Immediately he conducted an inspection of the condition of his gates and fences, finding nothing broken and no defect. The following day he made a daylight inspection, finding no defect in the facilities to which there was usual resort in confining the horses upon his premises. These were facts to which Boyd gave his testimony.

With presumptions proper to be made, we have concluded that under the Sheppards’ pleadings and proof they made out a prima facie case at common law entitling them to have their case against Beck submitted to the jury. To do this is to sustain their Point of Error No. 10 based upon the contention that “there was evidence to go to the jury concerning the Appellees’ failure to keep a proper lookout with regard to the horse in question”. There would not be the same right as applied to their case against Boyd, who had no knowledge that Duke was missing from his premises until after the collision had occurred.

The presumptions aforementioned would be that the premises from which Beck’s friend had attempted to “run up” Duke were of open character and on generally level land; i. e., premises of a nature where if the horse was still safely contained thereon he should have been observed. The record was substantially silent upon the nature of Boyd’s premises. The friend informed Beck that despite his search he did not find Duke. Because of the foregoing, it would be a jury question as to whether an ordinarily prudent person in the same or similar circumstances as Beck would be negligent in failing to make further search for Duke, and whether there should have been the discovery that Duke had either escaped or been let out of the enclosure. Furthermore, with the proximity of Highway 377 shown, it would be a jury question as to whether an ordinarily prudent person should have anticipated that Duke was upon the highway or might go upon the highway and cause a collision.

As applied to Boyd, the Sheppards could not be held to have made out the same character of prima facie case. He had no notice or knowledge that Duke was escaped. He was, if anything, an independent contractor as applied to Beck; certainly not Beck’s principal or agent.

The logical initial presumption that Boyd was negligent in respect to proper maintenance of the enclosure intended to confine Duke to his premises could be properly said to have “vanished” when he went forward with evidence to establish that there was no defect in the enclosure at any time material to the occurrence.

It has never been the law in civil cases that the burden of proof is upon the defendant whose animal is loose upon the highway and causes injury as result of collision to prove that he is not negligent. In instances where such a defendant has offered no evidence in explanation or in defense of the charge against him that he is responsible for permitting his animal to be on the highway, there obtains the presumption that the animal’s presence was due to his negligence so as to qualify the plaintiff’s case as one in which he has made out a prima facie case of liability of the defendant.

The presumption under discussion is like unto that where the vehicle involved in a collision bears the name of a person or firm, and where the presumption allowable thereupon to be made that it was owned or in any event operated by such person or firm’s agent in the scope and course of his employment. As applied thereto it is settled law in Texas that such presumption is not evidence but rather a rule of procedure or an “administrative assumption” which “vanishes” or is “put to flight” when positive evidence to the contrary is introduced. Empire Gas & Fuel Co. v. Meugge, 135 Tex. 520, 143 S.W.2d 763, 767 (1940); 23 Tex. Jur.2d, p. 112 “Evidence”, § 70, “Rebuttal of disputable presumptions.” The burden of proof never becomes that of the defendant, though the burden to go forward with rebuttal evidence is shifted to the defendant if the plaintiffs’ proof — as of a prima facie case by presumption — is to be destroyed.

Directed to this principle of law as applied to application of V.A.T.S. Art. 6971a, “Animals running at large on State Highways; . . ”, and affirming that highway presence of livestock presents no more than the rebuttable presumption that such presence was due to negligence of the owner or custodian are the following: Adamcik v. Knight, 170 S.W.2d 521 (Tex.Civ.App.— Austin 1943, no writ history); Dorman v. Cook, 262 S.W.2d 744 (Tex.Civ.App.—Beaumont 1953, writ dism’d). Ramey v. Richardson, 397 S.W.2d 288 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.), cited by appellees, is one which seemingly is in conflict with Adamcik and Dorman. However, the holding in Ramey would not necessarily make our decision in the instant case one which would be in conflict.

In view of Boyd’s evidence, the Shep-pards, having thereby lost benefit of any presumption, were in position of having no evidence to establish the requisite prima facie case against him.

The Texas Stock Laws have a somewhat interesting history, inappropriate to our discussion. Sufficient is it to say that the question above discussed falls within the provisions of present day (since 1973) Art. 6971a, supra, formerly V.Ann.Pen.Code Art. 1370a.

While the Article was a penal statute for imposition of a penalty, as distinguished from the imposition of liability, there may have been good reason for the contention that the State should prove actual knowledge of the escape of an animal upon the highway before the owner or custodian should be held guilty and fined. However, in a civil case of injury or damage resultant therefrom, the same contention would not be justified. It is only common sense to apply the rule above discussed upon the rebuttable presumption of negligence in a civil suit for damages.

As applied to defendant Boyd the judgment is affirmed. The judgment in the case as against defendant John Beck is reversed and remanded to the trial court for another trial.

Costs of appeal are assessed against defendant John Beck.


author: SPURLOCK, Justice.

text:
    Barbara Matthews HOUTCHENS, Appellant, v. Harley O. MATTHEWS, Appellee.
    No. 17925.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 20, 1977.
    Rehearing Denied Nov. 17, 1977.

      Clayton Kramer, Wichita Falls, for appellant.
    Sparkman & Brian and Roy T. Sparkman, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

This case involves a motion to reduce unpaid child support to judgment under Section 14.09(c) of the Texas Family Code. The statute does not set forth any applicable statute of limitations. At the time of the hearing on the motion, the father was in arrears on the court-ordered child support payments in excess of eight years; however, the trial court decreed judgment to the mother for unpaid child support for only four years. The trial judge applied the four-year statute of limitations, as set forth in art. 5529 h The appellant contends that the ten-year statute of limitations, as set forth in art. 5532, was the applicable statute of limitations and that the trial court erred in not rendering judgment for her for the entire time period in which the appellee had not paid the child support as ordered by the original divorce decree.

We reverse and render.

The parties were divorced in 1965. There were two children of the marriage. When the divorce was granted, the father was ordered to pay child support for each of the two children, commencing December 31, 1965. The amount of such child support was to be $60.00 per month per child. None of the installments due after June 1, 1968, had been paid.

Tex. Family Code Ann. § 14.09(c) (1974) became effective on January 1, 1974. It read as follows:

“On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.” (Emphasis added.)

Pursuant to this statute, the appellant on October 5, 1976, filed a motion to reduce unpaid child support to judgment. The motion was heard by the trial court on December 23, 1976. After a hearing on the motion, the trial court granted the appellant a judgment in the amount of $5,460.00, from which she has taken this appeal.

No findings of fact and conclusions of law were filed in this case. (Each party assumes that the proceeding on the motion under Tex. Family Code Ann. § 14.09(c) (1974) constituted a “trial by the court” within the meaning of Tex.R.Civ.P. 296. Since that question is not before us for decision, we shall assume, without deciding, its correctness.) In such a situation, the appellant must convince this court that the trial court could not have properly based its judgment upon any of the defenses raised by the appellee. The appellee pleaded or raised the statute of limitations, laches, es-toppel, loss of jurisdiction after age eighteen, an agreement between the parties modifying the divorce decree as to child support and visitation, and credit for payments made directly to Douglas. Where no findings of fact and conclusions of law are filed nor timely requested, the rule by which this court is normally bound is as follows:

“In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ ” (Emphasis added.) Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

We recognize the above quoted rule; however, in this case, the fact that the father is in arrears in his child support payments in excess of eight years is undisputed. The appellant in her brief states that at the hearing, the father admitted that “he had paid none of the installments due for either child on and after June 30, 1968.” The appellee has not challenged this statement in any manner; therefore, we apply Tex.R.Civ.P. 419 which provides that “[a]ny statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.”

Since the father was in arrears for over eight years, the amount of his arrearage was $11,700.00, but the trial court’s judgment was for only $5,460.00. The only possible explanation for the amount of the judgment rendered in the appellant’s favor is that the court gave her judgment for all child support installments falling due from and including October 31,1972, through and including September 30, 1976. Forty-eight (48) months at $60.00 per month for Douglas (who had not turned eighteen) is $2,880.00. Royce had reached eighteen years of age five months before September 30, 1976, so forty-three (43) months at $60.00 per month is $2,580.00. These two figures total $5,460.00, which is the amount of the judgment that the trial court rendered. The arithmetic does not support any conclusion other than that the trial court rendered judgment in this case on the basis of a four-year statute of limitations. Whether the trial court applied the proper statute of limitations is a law question for this court to decide.

Each spouse in Texas has the duty to support his or her minor children. Tex. Family Code Ann. § 4.02 (1974). This was also the law before the adoption of the Family Code. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Morgan v. Drescher, 219 S.W.2d 488 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.).

Prior to the enactment of the Family Code, the only remedy available to the parent who had received custody of the child was to have the party owing the child support held in contempt of court. Contempt is still an available remedy under § 14.09(a) and (b) of the Family Code. Section 14.-09(c) now provides an additional remedy, which is to file a motion to reduce unpaid child support to judgment. In Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.), Justice Brewster, speaking for this court, wrote:

“We are convinced that the purpose of Art. 14.09 was to provide courts with efficient means of enforcing the payment of child support obligations and that the Legislature intended the different remedies provided by that Statute for the collection of child support to operate independently of each other as well as concurrently. . . .” Id. at 392. (Emphasis added.)

Tex. Family Code Ann. § 14.09 (1974) is a remedial statute. It does not give an additional right, but only an additional remedy. “Remedial law or procedural law is the law that pertains to practice and procedure. It is the legal machinery by which the substantive law is made effective.” Harrison v. Cox, supra, at 391. The statute, however, does not set forth a specific statute of limitations that will be applicable to motions to reduce unpaid child support to judgment.

In her first two points of error, the appellant contends that the trial court erred in holding the four-year statute of limitations (as set forth in art. 5529 ) applicable and in failing to hold the ten-year statute (as set forth in art. 5532) applicable.

The appellee urges that the proper statute of limitations in this case is the four-year statute of limitations as set forth in art. 5529 .

In Texas, once the installment for child support has accrued, it is not subject to modification. An order providing for the support of a child may be modified only as to obligations that accrue subsequent to the motion to modify. Tex. Family Code Ann. § 14.08(c)(2) (1975).

The divorce in this case became final in 1965. Each installment became final and unmodifiable as it accrued, and the amount of each accrued installment is liquidated. Prior to the enactment of the Family Code, it was impossible for a person entitled to such accrued child support payments to record an abstract of judgment or to take advantage of other enforcement methods normally available to one who has secured a final judgment. Tex. Family Code Ann. § 14.09(c) (1974) has remedied this situation. It provides a procedure whereby the party entitled to receive payments for the benefit of a child may make a motion for the court to render judgment against a defaulting party for the accrued child support arrear-age that has become final and unmodifiable. Tex. Family Code Ann. § 14.09(c) (1974). In enacting that section, the Legislature added the caption “Enforcement of Order.” While the caption is not controlling, it does indicate to this court an intention on the part of the Legislature that this section was only intended to be an enforcement section; it does not create a new cause of action.

In several other states where one spouse has sought to collect alimony or child support awarded under a prior divorce decree, the courts have applied the statute of limitations applicable to judgments. Wadler v. Wadler, 325 Ill.App. 83, 59 N.E.2d 505 (1945); Carpenter v. Metropolitan Trust Co., 327 Ill.App. 220, 63 N.E.2d 658 (1945); Marte v. Marte, 45 N.Y.S.2d 174 (1943). Also, see 70 A.L.R.2d 1250, 1255, Annot. (1960).

There is an excellent note, entitled “Delinquent Child Support: Remedies, Limitations, and Laches,” in 28 Baylor L.Rev. 197 (1976), written by James Richmond-Hawkins. In considering whether the four or ten year statute of limitation should apply to motions under Tex. Family Code Ann. § 14.09(c) (1974), he wrote: “The policy involved in the support relationship ought to afford the supporting party a longer time in which to press a claim which was fruitless at the time it first arose.” We agree with this public policy.

The case of Turinsky v. Turinsky, 359 S.W.2d 114 (Tex.Civ.App.—Dallas 1962, no writ) deserves special mention. In that case, the father had been ordered by an Oklahoma divorce decree to pay $150.00 per month as child support for two children. He later moved to Texas where his wife sued him for the unpaid child support. The Dallas court of civil appeals applied art. 5530, which is the ten-year statute of limitations for foreign judgments, and affirmed a judgment of $15,540.00 for the accrued child support. In Turinsky, supra, the court obviously viewed the Oklahoma divorce decree ordering child support payments to be a final judgment within the meaning of art. 5530 .

We sustain the appellant’s first two points of error and hold that upon a motion to reduce unpaid child support to judgment under Tex. Family Code Ann. § 14.09(c) (1974), the applicable statute of limitations is the ten-year statute as applicable to judgments, as set forth in art. 5532 .

Since no findings of fact and conclusions of law were filed, we reiterate that the appellant must convince this court that the trial court could not have properly based its judgment upon any of the defenses raised by the appellee.

In her third and fourth points of error, appellant basically contends that the trial court erred in holding (if it did) that appellant’s right to child support payments was barred by laches.

At the outset, we note that laches, where applicable, is a complete bar. 35 Tex.Jur.2d Laches and Stale Demands § 2 at 459 (1962). Since the trial court rendered judgment for the appellant for $5,460.00, it is clear to us that the trial court did not find the defense of laches to be applicable. We sustain the appellant’s third and fourth points of error.

In her fifth and sixth points of error, the appellant contends that the trial court erred in holding (if it did) that the appellant was estopped to seek recovery of accrued child support. In general, the concept of estoppel is that one who has induced another to act in a particular way should not be permitted to adopt an inconsistent position, attitude, or course of conduct and thereby cause loss or injury to the other person. First State Bank of Riesel v. Dyer, 248 S.W.2d 785 (Tex.Civ.App.—Waco 1952), aff’d, 151 Tex. 650, 254 S.W.2d 92 (1953).

There are five distinct elements of estoppel: (1) there must have been a false representation or concealment of material fact[s]; (2) it must have been made with knowledge, actual or constructive of those fact[s]; (3) the party to whom it was made must have been without knowledge or the means of acquiring knowledge of those faet[s]; (4) it must have been made with the intention that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

Appellee contends that the facts support a finding of estoppel, if the judge made his decision on that basis. Due to the absence of findings of fact and conclusions of law, we have considered the evidence most favorable to the appellee on the issue and disregarded the evidence which is opposed to it.

On the issue of estoppel, appellee’s attorney has directed us to a statement by the appellee that he was told by appellant that if he did not pay child support, he could not see the children. In that situation, the ap-pellee could have gone to court to enforce his visitation rights.

Appellee is concerned that the appellant is going to secure the accrued child support from him in a lump sum. He could have avoided this by paying the child support as it was due, and if he truly did not know where to send the monthly payments, he could have paid the payments into the registry of the court, or he could have deposited the payment each month in a savings account for each of the children. This would have prevented the accruing of this lump sum. During a period in excess of eight years, the appellant had to support these two children without the financial help of the children’s father. During this period, appellant fulfilled both her and ap-pellee’s support obligation to the children. We can not see where the appellant is going to receive any windfall.

Having carefully considered the evidence most favorable to appellee on the issue of estoppel, we hold that the essential elements of estoppel are not to be found in this case. We sustain appellant’s fifth and sixth points of error and hold that the trial court erred in holding (if it did) that the appellant was estopped to seek recovery of accrued child support.

Appellant’s seventh point of error is basically that the trial court erred in holding (if it did) that it did not have jurisdiction to award child support that had accrued before Royce had reached age eighteen, since the motion under Tex. Family Code Ann. § 14.09(c) (1974) was not filed until Royce had reached his majority. Appellee contends that once a child reaches eighteen years of age, a parent is no longer entitled to receive payments for the benefit of that child. Obviously, appellee’s argument would be correct if the appellant were trying to collect unpaid child support for a period after Royce had reached eighteen, but that is not the case here. Instead, the appellant is only trying to collect child support that had accrued and become a final judgment before Royce had attained his majority.

The parties have cited the cases of Ex Parte Hooks, 415 S.W.2d 166 (Tex.1967) and McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.—Tyler 1972, no writ). We do not believe that either of these two cases is in point, since both of these cases involved a trial court’s application of the contempt power under Tex.Rev.Civ.Stat.Ann. art. 4639(a). That article was repealed, effective January 1, 1974, which is the date that the new Family Code became effective. Tex. Family Code Ann. § 14.09 (1974) is the new enforcement section; this new section includes the remedy of contempt, but not in the same terms as found in the repealed Tex.Rev.Civ.Stat.Ann. art. 4639(a). Accordingly, we find cases dealing with the application of a now repealed statute on contempt to be of no use in the present litigation.

An action under Tex. Family Code Ann. § 14.09(c) (1974) is retroactive, in that it applies to child support payments accruing under orders made prior to its effective date. Harrison v. Cox, supra.

An action under Tex. Family Code Ann. § 14.09(c) (1974) is authorized only upon “the motion of any party entitled to receive payments for the benefit of a child.” The statute does not indicate any intention on the part of the Legislature to extinguish the remedy of a “party entitled to receive payments” upon the child’s attaining majority to the extent of payments already accrued. We hold that a party’s remedies under this section do not end when the child attains majority as to installments that have accrued and become final judgments prior to the child’s attaining his majority.

We sustain the appellant’s seventh point of error and hold that the trial court erred in holding (if it did) that it did not have jurisdiction to award child support that had accrued prior to Royce’s attaining age eighteen.

In her eighth point of error, appellant contends that the trial court erred in holding (if it did) that appellee and appellant ever made a binding agreement that appel-lee would not be required to pay any part of the child support due from 1968 forward.

The law in Texas is clear that the parents of minor children do not have the power, without court approval, to effect modification of a decree and orally agree to a reduction of child support payments. McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App.—Tyler 1975, no writ); In Re McLemore, 515 S.W.2d 356 (Tex.Civ.App.—Dallas 1974, no writ). We sustain appellant’s eighth point of error.

Appellant’s ninth point of error is that the trial court erred in holding (if it did) that appellee was entitled to credit for payments that he had made directly to Douglas. Appellee has conceded that the trial court erred if it gave credit for any such payments made directly to Douglas.

Even though no findings of fact and conclusions of law were filed, appellant has convinced us that the trial court erred in making its judgment upon any defensive theory raised by the appellee.

Tex.R.Civ.P. 434 authorizes us to render the judgment or decree that the trial court should have rendered, unless it is necessary that some matter of fact be ascertained or the damages to be assessed or the matter to be decreed is uncertain.

The trial court should have rendered judgment against appellee for $11,700.00, which is $6,000.00 for accrued child support for Douglas (100 months at $60.00 per month from June 30, 1968, through and including September 30,1976) and $5,700.00 for accrued child support for Royce (95 months at $60.00 per month from June 30, 1968, through and including April 30,1976).

The judgment of the trial court is reversed; judgment is rendered against ap-pellee in favor of appellant for $11,700.00, plus legal interest from February 10, 1977.

      . Tex.Rev.Civ.Stat.Ann.

      . Tex.Rev.Civ.Stat.Ann.

      . Tex.Rev.Civ.Stat.Ann.

      . Tex.Rev.Civ.Stat.Ann.


author: HALL, Justice.

text:
    William John EICHELBERGER, Appellant, v. Helen Beatrice EICHELBERGER, Appellee.
    No. 5760.
    Court of Civil Appeals of Texas, Waco.
    Oct. 20, 1977.
    Rehearing Denied Nov. 17, 1977.

      Philip R. Segrest, Segrest, Mills & Cameron, Waco, for appellant.
    Bedford D. Edwards, Waco, for appellee.
   HALL, Justice.

As part of the property division between the parties when they were divorced, the court awarded appellee wife a 40% interest in disability benefits and pension benefits due appellant husband under the Railroad Retirement Act (Railroad Retirement Act of 1937, 45 U.S.C. § 228a et seq.; now Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq.) which were earned both before and during their marriage. Husband appeals, questioning only those awards. We affirm.

The case was heard by the court without a jury. The findings of fact made by the trial judge are not questioned. They show that appellant began working for the railroad in 1946. He and appellee were married in June, 1957. He was placed on disability retirement in 1973. The divorce judgment in question was rendered in May, 1977. At that time, appellant was 55 years of age. Appellee was living in rented quarters, and had approximately $50.00 in cash and three $25.00 U.S. Savings Bonds. She was without education or skill to qualify her for any particular employment. Her income was from babysitting jobs at $5.00 per day, but she had no children to sit with at the time of hearing. Appellant was employed by a motel at a salary of $50.00 per week. He paid $10.00 per week for his room. He received $419.95 per month Railroad Disability Benefits. The parties’ agreement dividing all their property except appellant’s railroad retirement benefits and disability benefits was fair and was approved by the court. A fair, just, and equitable division of the parties’ property required an award to appellee of 40% of the disability benefits appellant was receiving as well as 40% of the anticipated regular retirement benefits he will receive pursuant to the Railroad Retirement Act upon attaining age 65.

V.T.C.A., Family Code § 3.63, requires the court to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage,” in a judgment of divorce.

In Texas, retirement benefits and vested disability benefits resulting from employment during marriage are community property subject to division between the husband and wife in the event of dissolution of the marriage. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.Sup.1970); Herring v. Blakeley, 385 S.W.2d 843, 846 (Tex.Sup.1965). Such retirement benefits are subject to division even though they may not have matured or vested at the time of divorce. Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.Sup.1976). Additionally, to effect an equitable division of the spouses’ properties, it has long been the law that the court may award all or a part of either’s separate personal property to the other. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 22 (1923). Appellant says this rule was abolished in the recent case of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.Sup.1977). We disagree. The opening sentence in the opinion in Eggemeyer points up that the question before the Court was whether a trial court is now authorized by Texas Family Code § 3.63 to divest one spouse of his or her separate realty and transfer title to the other spouse in a divorce decree. The court answered that question in the negative, but it did not change the rule permitting divestiture of separate personalty upon divorce. To the contrary, at 554 S.W.2d 142, the Court expressly agreed with the decision in Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ), which restated the Hedtke rule, supra, relating to the parties’ separate personal property.

Appellant asserts that the trial court’s award of future railroad retirement benefits to appellee conflicts with and is prohibited by 45 U.S.C. § 231m, Railroad Retirement Act, which provides as follows:

Notwithstanding any other law of the United States, or any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated

This contention is overruled. § 231m is substantially similar to other congressional and legislative enactments designed to place federal and state retirement benefits beyond the reach and anticipation of creditors. E. g., 10 U.S.C. § 1440 (military annuities); 38 U.S.C. § 3101 (veteran’s benefits); Vernon’s Ann.Civ.St., Art. 6228a, § 9 (state and county pensions); Vernon’s Ann.Civ. St., Art. 6243e.2, § 12 (firemen’s relief and retirement fund); Vernon’s Ann.Civ.St., Art. 6243J, § 20 (policemen’s pensions). It was not intended to remove such benefits from the application of the property laws of the several States, including the marital property laws of a community property State. See, Hisquierdo v. Hisquierdo, 19 Cal.3d 613, 139 Cal.Rptr. 590, 566 P.2d 224 (Calif.Sup.1977).

Appellant’s remaining points and contentions are also without merit. They are overruled.

The judgment is affirmed.


author: NYE, Chief Justice.

text:
    Clarence KENNEY, Appellant, v. John PORTER, Appellee.
    No. 1201.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 20, 1977.

      Ballard Bennett, Weslaco, Adams, Graham, Lewis, Jenkins, Jones & Graham, Har-lingen, for appellant.
    Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellee.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. Clarence Kenney brought suit against John Porter for specific performance of an alleged contract to purchase some 3355 shares of stock in a closely held corporation. Defendant Porter answered Kenney’s petition and filed a motion for summary judgment. After reviewing Porter’s motion for summary judgment, Kenney’s answer to the motion, the accompanying affidavits and briefs, the trial court granted the motion. Plaintiff Kenney has perfected his appeal to this Court.

Kenney and Porter are the sole stockholders of the Valley Plumbing Supply Company, a Texas corporation. On April 16, 1971 they entered into an agreement of purchase and sale which provided that if either stockholder should become dissatisfied he could set in motion a buy-sell arrangement. This agreement provided for the buying out of either by the other or the sale of stock by either to the other. The agreement also provided for the purchase of the stock by the surviving party should the other die. The buy out/sell out portion of the agreement provided that in the event either of the stockholders should become dissatisfied with their position in the Company, he could give sixty (60) days notice in writing to such effect to the other stockholder. Such notice would contain a statement that the party giving the notice (Offeror) desires to sell his stock or purchase the other party’s stock and that he has estimated the value of his stock in said company to be a set certain sum, which is to be stated in the notice. The agreement provided that the other party would have a period of sixty (60) days in which to accept or reject the offer.

On July 7, 1976, Kenney sent Porter a letter exercising the above quoted portion of the agreement. In his letter, Kenney offered to sell to Porter his 3,355 shares for $25 per share for a total of $83,875.00. Kenney also offered in the alternative to buy Porter’s 4,830 shares for $25 per share for a total of $120,750.00. At this point the facts are in dispute. Kenney claims that Porter accepted the offer orally on September 7,1976, and after a couple of scheduled meetings to close, the transaction failed to develop; and Porter then informed Kenney he would not carry out his acceptance. Porter claims he never accepted Kenney’s offer; that he never agreed to buy Ken-ney’s stock or sell his stock to Kenney; and that he never signed any written agreement which obligated him to buy or sell his stock.

The only pertinent fact which is uncon-troverted is that Porter did not accept Ken-ney’s written offer in writing. Porter’s argument, with which the trial court evidently accepted, was that Section 8.319, Tex. Bus. & Com.Code Ann. (1968), requires that there be a written contract for the sale of stock and since there was no written acceptance, there was no written contract for the purchase of the stock. Kenney presents seven points of error to this Court. The major question raised in this appeal is presented in Kenney’s points of error 1 through 3. These points allege that the trial court erred in granting the motion for summary judgment on the grounds that Porter’s acceptance of Kenney’s offer had to be in writing, and even if this were true there was a fact question whether or not the stock in question was in fact a security under Section 8.319.

The pertinent portion of Section 8.319 states:

“A contract for the sale of securities is not enforceable by way of action or defense unless
(1) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or . .

The fact question allegedly raised is whether or not the stock in Valley Plumbing Supply Company constituted a “security” as that term is defined by the code.

Because of the language of Section 8.102(a) defining security, Section 8.319 would not apply unless “the securities”: were issued in bearer or registered form; were of the type commonly dealt in upon securities exchanges or markets commonly recognized in the area in which it is issued or dealt in as a medium for investment; and was either one of a class or series or by its terms was divisible into a class or series of instruments; and evidences a share, participation or other interest in property or evidences an obligation of the issuer. From this definition above it is apparent to us that a question of fact is raised by the requirements set out in definition itself. Before Porter can make any claim to the benefits of the statute of frauds contained in Section 8.319, he would have had to produce evidence at least sufficient to satisfy the limiting requirements of Section 8.102(a). The summary judgment evidence did not meet this criteria.

Under rule 166-A, Tex.R.Civ.P., when a defendant moves for summary judgment on the basis of an affirmative defense, such as the statute of frauds, he must conclusively prove all the essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972). The essential elements of defendant’s defense under Section 8.319 are: 1) that the subject matter of this sale is a “security” as that term is defined in the code; and 2) that there was no written contract to purchase the security. Porter has clearly failed to prove as a matter of law, that the stock in Valley Plumbing Supply Company was a security. He probably could not have established such as a matter of law since the question itself is one of fact.

The question for the trial court as well as for us on appeal is not whether the summary judgment proof raises fact issues with reference to the elements of the plaintiff’s cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the movant/defendant’s affirmative defense. Odom v. Insurance Company of State of Penn., 455 S.W.2d 195 (Tex. Sup.1970); State v. Superior Oil Company, 526 S.W.2d 581 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Moore v. Mohon, 514 S.W.2d 508 (Tex.Civ.App.—Waco 1974, no writ).

The fact that this specific point was not raised in the trial court does not aid Porter. Porter had the burden of establishing his right to a judgment as a matter of law and there is no penalty of waiver on the non-moving party for his failure to point out that the evidence was only sufficient to raise a fact issue. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972); Hungate v. Hungate, 531 S.W.2d 650 (Tex.Civ.App.—El Paso 1975, no writ). We cannot presume that there was sufficient summary judgment evidence to establish the fact. In a summary judgment case where all matters considered by the trial court are in the record, the appellate court will not indulge any presumptions in favor of the judgment. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961); Hungate v. Hungate, supra. The most fundamental concept in summary judgment cases is that all doubts as to the existence of a genuine issue of material fact will be resolved in favor of the non-movant. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.Sup.1965); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); appellant’s first three points of error are sustained. In light of our holding it is unnecessary for us to decide the remaining points of error raised by appellant Kenney. The judgment of the trial court is REVERSED and the cause is REMANDED for trial.

      . Section 8.102(a) of the code defines security as an instrument which:
      “(A) is issued in bearer or registered form; and
      (B)is of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment; and
      (C) is either one of a class or series or by its terms is divisible into a class or series of instruments; and
      (D) evidences a share, participation or other interest in property or in an enterprise or evidences an obligation of the issuer.”


author: DUNAGAN, Chief Justice.

text:
    Lonnie B. EDWARDS, Appellant, v. George TACKETT d/b/a George Tackett Pulpwood Company, Appellee.
    No. 892.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 20, 1977.
    Greg W. Thrower, Vern J. Thrower & Assoc., Houston, for appellant.
    Clayton E. Dark, Jr., Ralph M. Zeleskey, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought by appellant Lonnie B. Edwards, plaintiff below, for personal injuries he sustained when a portion of a load of pulpwood logs fell onto him from a passing pulpwood truck while he was working beside a logging road on private property in Panola County. Appellant worked for appellee. Appellee was cutting pulpwood for International Paper Company pursuant to contract. The truck in question (truck No. 29) was owned by appellee and operated on the occasion in question by one of appel-lee’s employees, Eugene Edwards.

Appellant’s basic contention at trial was that truck No. 29 had been overloaded in excess of the recommended carrying capacity on the occasion in question and on numerous occasions prior to the accident; that this overloading caused the truck’s left front tire to blow out and the left front steering knuckle or spindle on the truck to break.

The case was submitted to the jury on special issues. The jury found in favor of the appellee on two vital issues:

“SPECIAL ISSUE NO. 1:
Do you find from a preponderance of the evidence that Defendant George Tackett required that truck 29 be continuously loaded with a weight of pulpwood logs which was in excess of the recommended carrying capacity of said truck?
Answer: We do not
“SPECIAL ISSUE NO. 4:
Do you find from a preponderance of the evidence Eugene Edwards loaded truck 29 with a weight of pulpwood logs which was in excess of the recommended carrying capacity of said truck?
Answer: We do not”

Having answered Special Issue No. 1 in the negative, the jury did not answer the negligence and proximate cause issues conditionally submitted thereon, nor did the jury answer the negligence and proximate cause issues submitted conditionally on the jury’s answer to Special Issue No. 4.

The jury found that a third party, International Harvester Company, was negligent but answered that such negligence was not a proximate cause of the occurrence in question.

The jury found appellant’s damages to be a total of $64,350.00.

Appellant made his motion to disregard the jury’s answers to Special Issues Nos. 1 and 4 and also asked judgment n. o. v. in the amount of $29,350. Both motions were overruled.

Appellant asked for this amount because he had previously made a settlement with International Harvester Co. and Goodyear Tire and Rubber Co. for $35,000.00. Thus, the damage finding of $64,350.00 less $35,-000.00 equals $29,350.00.

Thereafter the court entered judgment on the verdict, holding that appellant take nothing by his suit. Appellant made his motion for new trial which was overruled by operation of law.

Appellant presents two points of error, alleging that the trial court erred in overruling his motion for new trial for the reasons that the jury’s answers to Special Issues 1 and 4 were manifestly unjust and contrary to the great weight and preponderance of the evidence.

We do not agree.

The issues submitted to the jury concerned whether the weight of pulpwood logs exceeded the “recommended carrying' capacity” of the truck. No definition of recommended carrying capacity was requested and none was submitted. Such a term could possibly be subject to varying meanings, but we find that such term under these circumstances must reasonably be construed to mean what carrying capacity the manufacturer recommended. The testimony adduced at trial establishes the manufacturer’s recommended carrying capacity was 22,500 pounds.

The testimony established that as a matter of course and also on this occasion approximately four cords of pulpwood were carried on a truck. Eugene Edwards testified that a cord of pulpwood logs weighed approximately 4,000 pounds. J. C. Wilson set the weight at about 5,200 pounds per cord and George Tackett set the weight at about 5,800 pounds per cord. We believe that based on this evidence a jury could reasonably find that the appellant had not proved by a preponderance of the evidence that the pulpwood truck was continuously overloaded nor that truck 29 was overloaded on the day in question.

We have reviewed the entire record and have concluded that the verdict was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.Sup.1973); C & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960).

Judgment affirmed.


author: WARD, Justice.

text:
    Wayne MOORE and Wilson Smith, Appellants, v. Sam DODGE, Appellee.
    No. 6636.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 26, 1977.

      Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Richard E. Booth, Midland, Paul H. Dionne, Fort Stockton, for appellants.
    Grambling, Mounce, Sims, Hardie, Galat-zan & Harris, Michael F. Ainsa, William J. Mounce, S. Anthony Safi, El Paso, for ap-pellee.
   OPINION

WARD, Justice.

This is a venue case controlled by Subdivision 14 of Article 1995, Tex.Rev.Civ.Stat. Ann. The Plaintiff, Sam Dodge, filed suit in Hudspeth County against three Defendants, Gladys Young Fields, Wilson Smith and Wayne Moore. Wilson Smith and Wayne Moore filed their pleas of privilege to be sued in the counties of their respective residences, Smith in Pecos County and Moore in Midland County. The Plaintiff controverted the two pleas claiming venue under Subdivision 14. After a hearing before the Court without a jury, the two pleas of privilege were overruled and both Smith and Moore appeal. We affirm.

The first four appellate points present procedural matters to be later considered. The fifth point complains of the weakness of the evidence and that it failed to defeat the pleas of privilege under Subdivision 14. Subdivision 14 provides as follows:

“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

The facts necessary to establish venue in Hudspeth County and on which the Plaintiff had the burden of proof were: (1) that the nature of the suit concerned land as contemplated by Subdivision 14; and (2) that the land involved was located in Hudspeth County. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945). Plaintiff alleged and the evidence showed that the land is situated in Hudspeth County, a fact conceded by the Defendants. The remaining dispute involves the nature of the suit brought by the Plaintiffs and in this regard it has been settled that where venue depends upon the nature of the suit, the venue will be determined by the nature of the principal right asserted in the plaintiff’s petition and the relief sought therein. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957). It remains for this Court to determine the nature of the suit solely from the facts alleged in the Plaintiff’s petition, the rights asserted, and the relief sought. Renwar Oil Corporation v. Lancaster, 154 Tex. 811, 276 S.W.2d 774 (1955); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d). It is the ultimate or dominant purpose of the suit which determines whether or not the suit falls under Subdivision 14. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App.—Dallas 1969, no writ); Texaco, Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ. App.—Austin 1963, no writ). The rule is also established that due to the mandatory nature of Subdivision 14, Courts have generally given this Subdivision a strict construction and have refused to apply the exception unless a suit is clearly within one or more of the four categories set out by the Subdivision. Bennett v. Langdeau, 362 S.W.2d 952 (Tex.1962); Brown v. Gulf Television Company, supra; Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949).

We will now consider the Plaintiff’s trial pleadings. Plaintiff alleged that on January 30, 1974, he leased from Gladys Young Fields 11,820 acres of land in Hud-speth County for a period of five years according to the terms of a written lease which was filed for record December 29, 1975, in Volume 118, Page 754, of the Deed Records of Hudspeth County. The lease is attached to the petition as an exhibit and as a part thereof. Paragraph 9 of the lease is to the following effect:

“This lease is expressly made subject to Lessor’s right to sell said property during the term of this lease in which event Lessor shall offer this property above to Lessee to purchase said property. Lessee will exercise his right to accept or reject the offer. Should Lessee accept the offer, he will have one hundred and twenty (120) days to make all the necessary arrangements for closing of this sale. The Lessor shall refund to the Lessee the prorata portion of the lease money herein receipted for, for the unexpired portion of such lease year. The date of expiring this lease if within this term will be the date the sale is closed.”

Plaintiff further alleged that on January 11, 1976, Gladys Young Fields entered into a contract to sell the leased premises in addition to other real property to the Defendants, Wilson Smith and Wayne Moore, for a total consideration of $225,000.00, with $200,000.00 thereof to be in the form of a note on a 15-year plan at 7%. The Plaintiff further alleged that he was and is ready, able and willing to comply with any obligation resting upon him insofar as the sale of the land was concerned, and that had he been notified of the proposal involved, he would have exercised his preference right to purchase the same on the identical terms of sale; that thereafter on March 25, 1976, Fields sold the leased premises and other property to Smith and Moore for a recited consideration of $200,000.00, payable by ten promissory notes that are reflected by attached deeds; that Smith and Moore had acted with full knowledge of the preference right of the Plaintiff to purchase the property; that because of the deed they now claim the right, title and interest in and to the land which the Plaintiff seeks to recover and to quiet the title thereof; and that the Plaintiff’s preference right to purchase the leased premises was a duly recorded right in favor of the Plaintiff which ran with the land in controversy. Plaintiff has exercised his preference right to purchase the leased premises in accordance with the terms of the lease and alleged that he tendered into the registry of the Court the amount of the purchase price Smith and Moore paid to the Defendant Fields, and that thereby the Plaintiff had acquired an absolute vested equitable interest and title in and to the lands, prior in right and superior in equity to any right, title and interest held by Smith and Moore, whereby the Plaintiff sued for title and possession of the lands in controversy.

Plaintiff, in the alternative, alleged damages from all three Defendants in the sum in excess of $10,000.00 as well as a declaratory judgment that he was entitled to a preference right to purchase the leased premises upon the lessor’s election to sell the same during the term of the lease. He alleged that upon the exercise of his preference right and the tender he acquired a vested equitable interest and title to the lands superior to that held by Smith and Moore. The prayer was for recovery of the title to the lands and possession thereof from the Defendants, Smith and Moore, for declaratory judgment praying the same relief, and in the alternative and only in the event that the Plaintiff should not be entitled to recover the land, then for damages against all three Defendants jointly.

Nowhere by the pleadings does the Plaintiff seek to compel any specific performance of the contract to convey the ranch to him by Gladys Young Fields. Such an action is not within the meaning of Subdivision 14, the cases so holding adhering to the fiction that specific performance is a personal action and not an in rem proceeding and hence not governed by the Subdivision. Smith v. Hall, supra; O’Quinn v. Dunagan, 227 S.W.2d 366 (Tex.Civ.App.—El Paso 1949, no writ). Gladys Young Fields has not been sued for specific performance. Regardless, she has not filed any plea of privilege.

What the Plaintiff has done in this case is to track the allegations and the prayer of Mecom v. Gallagher, 192 S.W.2d 804 (Tex. Civ.App.—Waco 1946, writ ref’d n.r.e.). According to that decision, the Plaintiff has alleged that he has an absolute vested equitable interest in and to the lands which was and is prior in right and superior in equity to any right, title and interest acquired or held by the Defendants, Smith and Moore. That case further holds that those Defendants could be sued directly and, if at a trial on the merits the Plaintiff makes proper proof of those allegations, he will there become entitled prima facie to recover the lands sued for without the necessity of any deed of conveyance to him, and that his petition unmistakably evidences a suit for the recovery of lands and to quiet title thereto and is within the mandatory provisions of Subdivision 14. See Woodworth v. Rogers, 367 S.W.2d 412 (Tex.Civ.App.—San Antonio 1963, no writ); 3 Sw.L.J. 384 (1949). Neither pleadings nor proof challenge the Plaintiff’s good faith in making his allegations to hold venue in Hudspeth County. The Defendants’ fifth point is overruled.

At the hearing, a considerable amount of unnecessary testimony was introduced which was foreign to a Subdivision 14 hearing. Thereafter, difficulties were encountered in the preparation of the statement of facts which, after various motions and hearings before the Court, resulted in the certification of a “Partial Statement of Facts.” In addition, there was a tender made by the Plaintiff to the Court occurring after the entry of the order appealed from and certain complaints are made of that. Since we have all the pleadings before us and the location of the property was established, then all material matters that pertain to the pleas of privilege hearing are fairly before us. With that, we overrule the balance of the Defendants’ points on the grounds that the matters presented therein are neither material nor harmful to the appealing Defendants at this stage.

The judgment of the trial Court in overruling the two pleas of privilege is affirmed.


author: JAMES, Justice.

text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellant, v. The ESTATE of Rachel BASNIGHT et al., Appellees.
    No. 5773.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.
    Rehearing Denied Nov. 17, 1977.

      Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.
    Richard W. Ewing, Schleider & Ewing, Houston, for appellees.
   OPINION

JAMES, Justice.

This is a suit against a liability insurance carrier concerning primarily the question of coverage. After nonjury trial, the trial court awarded judgment in favor of Appel-lees against the Appellant Insurance Company in the net amount of $21,600.00 plus certain interest, said amount being composed of $20,000.00 as policy limits plus $1600.00 for cost of defending the suit wherein the deceased insured’s estate suffered judgment. We affirm.

The insured is one Rachel Basnight, who died on July 20,1972. For a period of time prior to her death, she had been issued a number of monthly policies of automobile liability insurance by Appellant Dairyland County Mutual Insurance Company of Texas, hereinafter called “Dairyland.” These policies were issued through the agency of a Mr. J. L. Moak, of Beaumont, Texas, normally referred to as “Moak the Broker.” The insurance policy in question was No. 41-0260391, was issued by Dairyland to Rachel Basnight for the policy period from June 14, 1972, through July 14, 1972. J. L. Moak died May 19, 1972, whereupon a Mrs. Sarah Young (Moak’s ex-wife) was made Independent Executrix of his estate, and she undertook the task of winding up Mr. Moak’s business affairs. In doing so she found a communication concerning endorsements to Rachel Basnight’s policies and wrote Dairyland concerning the matter. The body of the letter (dated July 17,1972) from Mrs. Young to Dairyland concerning the Basnight policies reads as follows:

“Mr. J. L. Moak, Moak the Broker, expired May 19, 1972, and I found the above policies and a request for Mr. Moak to have Rachel Basnight sign an endorsement. Kindly let me know how to proceed and the status of this and his account with you. Thank you.”

The Defendant Dairyland responded to this letter by a written memorandum bearing date of July 19, 1972, addressed to Mrs. Young as executrix of J. L. Moak, reference the Rachel Basnight policies, the body of which letter reads as follows:

“Yours of 7-17-72.
“Mr. Moak was the agent for the two policies for the above captioned. He has already returned the endorsements to be signed by the insured.
“At the present time, the two policies come up for renewal on 7-14-72 and the premium as of this date has not been paid. If the insured does not remit soon the policies will lapse for non payment.
“Underwriting Department.”

Louis Davis, a former employee of Mr. Moak, was assisting Mrs. Sarah Young in winding up Mr. Moak’s business affairs. In doing so, he discovered the letter from Dairyland of July 19, 1972, as hereinabove quoted.

Mr. Davis was acquainted with Rachel Basnight, since he had been a customer at times at the Gusher Room in Beaumont where Mrs. Basnight was employed as a bartender. Thereupon on Thursday, July 20,1972, Mr. Davis went to the place where Mrs. Basnight worked and talked to her. The following is the excerpt from Mr. Louis Davis’s testimony concerning this conversation he had with Mrs. Basnight only a few hours before her death:

“Q. Now what was your purpose in going to see Mrs. Basnight?
“A. Well, I stopped to talk to her about that letter there, because knowing that Mr. Moak had passed away and the office was closed, I wanted to remind her by all means to send her premium up to Dairyland, to keep her insurance.
“Q. Do you recall whether or not you felt that there was some urgency in her sending the premium?
“A. Yes sir, I think the urgency was I was afraid possibly it might run out if she didn’t do something about it real fast.
“Q. What was her response to that?
“A. She asked me if I would contact her again Monday evening, when she was paid.
“Q. Let me ask you about what you recall your impression was at that time. Did you have any discussion with her or did you feel that it would be satisfactory to collect the premium on Monday evening?
“A. What is was, I would had she been alive on Monday evening, and had the necessary funds, and that had she survived to Monday, which would have been her normal pay day. I, myself, could not have accepted the money, I could only act as advisor and put it in an envelope and mail it to the people and get it postmarked prior to midnight, so it would be postmarked that day.
“Q. When you concluded that conversation with Mrs. Basnight, can you tell us whether or not it was your intention to return Monday to collect the premium?
“A. It would have been my intention to have returned to see her Monday evening, to assist her, if I could, in any way. ....."

During the evening of July 20, 1972, on the same day that Louis Davis contacted her as above referred to, Rachel Basnight was involved in an automobile collision with another vehicle containing the family of a Mr. James Smith. Rachel Basnight suffered fatal injuries as a result of the accident, as did Donna Smith, one of the passengers in the other vehicle. The other four members of the Smith family received serious personal injuries. They were James Smith and his wife Jean Smith, and their two daughters Patricia Lynn Smith and Shirley Ann Smith. Donna Smith, the one who died as a result of the accident, was another daughter of James and Jean Smith.

After Mrs. Basnight’s death, a Mr. Her-bin T. Molbert, a practicing attorney in Beaumont, Texas, was appointed and qualified as Administrator of the Estate of Rachel Basnight, Deceased.

The Smiths filed suit against the “Estate of Rachel Basnight and her heirs and survivors” in Cause No. E-97682 in a District Court of Jefferson County, Texas, hereinafter referred to as “the Jefferson County suit.” In their First Amended Original Petition, the Smiths alleged in paragraph I thereof: “That the Estate of Rachel Bas-night is being represented by the Administrator, Herbin T. Molbert and that the said Estate may be served with service of citation by serving the Administrator, Herbin T. Molbert, 915 Goodhue Building, Beaumont, Jefferson County, Texas.” Pursuant thereto, a citation was issued to “The Estate of Rachel Basnight, by serving Herbin T. Molbert, 915 Goodhue Building, Beaumont, Texas,” and thereupon said citation was served upon the said Herbin T. Mol-bert. After Mr. Molbert was served with citation in the Smith suit, he mailed the suit papers to Dairyland with a letter requesting Dairyland to defend the suit; however, Dairyland took the position there was no policy coverage, refused to defend the suit, and returned the suit papers to Mr. Mol-bert. Thereafter Mr. Molbert appeared and filed pleadings in said cause as Administrator of the Estate of Rachel Basnight, and as attorney for said Estate, and in his capacities as both Administrator and as attorney representing the Estate he participated in the pre-trial discovery, moved for summary judgment, conducted the defense in the trial, filed a motion for new trial, and performed legal services for the Estate which have been stipulated in the case at bar to be of the value of $1600.00. That is to say, Mr. Molbert participated in the Jefferson County case in a real and substantial manner, both as Administrator and as attorney for the Estate.

This Jefferson County case was tried without a jury, after which the trial court therein on May 7, 1974, entered judgment in favor of the Smiths against “The Estate of Rachel Basnight and her heirs and survivors” in the total amount of $64,869.50. This judgment was not appealed.

This suit which is now before this court was filed in Travis County, Texas, by Her-bin T. Molbert, Administrator of the Estate of Rachel Basnight, Deceased, and the Smiths against Defendant-Appellant Dairy-land seeking to recover the full amount of the judgment rendered in favor of the Smiths against “The Estate of Rachel Bas-night” in the Jefferson County suit, to wit, $64,869.50.

After non-jury trial the trial court awarded judgment in favor of Molbert as Administrator of the Estate of Rachel Bas-night, Deceased, and the Smiths against Dairyland in the amount of $20,000.00, same being the policy limits of the policy in question, plus $1600.00 to Molbert for attorney’s fees incurred in defense of the Jefferson County case, plus certain interest.

The trial court filed findings of fact which are substantially in harmony with the facts hereinabove outlined, and made conclusions of law, pertinent of which may be paraphrased as follows:

(1) That the letter from Dairyland to Sarah E. Young, Executrix of the Estate of J. L. Moak, of July 19, 1972, constituted a waiver of Dairyland’s legal position that the policy had expired.

(2) That said letter of July 19, 1972, constituted a premise which was relied upon by Louis Davis, and by reason of his communication of such promise to Rachel Basnight, relied upon by her, so that Dairyland is precluded from denial of coverage by promissory estoppel.

(3) That said Dairyland’s letter of July 19, 1972, constituted a contractual offer to Rachel Basnight which was accepted by her on July 20, 1972, prior to her death by her promise to pay.

(4) That the policy in question was in full force and effect on July 20, 1972.

(5) That Molbert made two written demands upon Dairyland to take over and defend the Jefferson County suit.

(6) That Dairyland in writing denied and refused to defend under the policy.

(7) and (8) That by reason of Dairyland’s denial of coverage and refusal to defend, Plaintiffs are entitled to recover the $20,-000.00 bodily injury limits under the Bas-night policy, plus interest from the date of the Jefferson County judgment; and Mr. Molbert, Administrator, is entitled to recover $1600.00 as value of legal services in defense of the Jefferson County suit.

(9) That the District Court which entered the Jefferson County judgment has subject matter jurisdiction of said cause in question, and the final judgment rendered therein was not void and is not subject to collateral attack.

(10) That the extensive participation of Herbin T. Molbert, both as Administrator of the Estate of Rachel Basnight, Deceased, and as attorney for said Estate in the preparation and trial of the Jefferson County suit, made him in his capacity as such Administrator an effective party to the litigation and he is bound in that capacity by the final judgment in the Jefferson County suit.

(11) That Dairyland’s refusals to accept the defense of the Jefferson County suit and the return of the suit papers to Administrator Molbert made Dairyland a party to that suit by operation of law and precludes a collateral attack on the Final Judgment therein by Dairyland.

(12) Dairyland is not liable for any of the judgment in the Jefferson County case in excess of its bodily injury limits of $20,-000.00 (plus the $1600.00 cost of defending the Jefferson County suit).

Appellant’s points of error raise two critical questions which must be resolved in order to make a determination of this case, and they are as follows:

(1) Was the policy in force at the time of the accident on July 20, 1972, in which Mrs. Basnight was killed; in other words, was there coverage?

(2) If there was coverage, then is the Jefferson County Judgment, recited on its face to be against “The Estate of Rachel Basnight Deceased,” void and subject to collateral attack by Dairyland?

We are of the opinion and hold that there was coverage, that the Jefferson County Judgment is not void and not subject to collateral attack, and thereby affirm the trial court’s judgment.

We revert to the coverage problem: Appellant says there is no evidence, and insufficient evidence that Dairyland waived the lapse of the policy. We do not agree, and hold that the evidence is legally and factually sufficient to support the trial court’s findings of waiver.

The policy in question ran from June 14, 1972 until July 14, 1972. By Dairyland’s letter of July 19, 1972, to Sarah E. Young, Executrix of the Estate of J. L. Moak, in response to her inquiry, Dairyland pointed out that the policy in question comes up for renewal on July 14, 1972 and the premium had not been paid, and then goes on to say: “If the insured does not remit soon the policies will lapse for non payment.” Under the rules laid down by our Supreme Court in such cases we believe and hold that said letter constituted a waiver of the lapse or forfeiture of the policy for a reasonable time after said letter of July 19, 1972, in order to give Rachel Basnight an opportunity to pay the premium owed. Of course she died a few hours after the contents of the letter were made known to her by Louis Davis, and was thereby rendered unable to pay the premium owed. Equitable Life Assurance Society of the U. S. v. Ellis (1912) 105 Tex. 526, 147 S.W. 1152, 1156, 1157, and 1158; National Life and Accident Ins. Co. v. Harris (1937) 130 Tex. 168, 107 S.W.2d 361, 363; Massachusetts Bonding and Ins. Co. v. Orkin Exterminating Co. (Tex.1967) 416 S.W.2d 396, 401, 402; United States Fidelity and Guaranty Co. v. Bimco Iron and Metal Corp. (Tex.1971) 464 S.W.2d 353, 357, 358. Also see United Fidelity Life Ins. Co. v. Murph (Beaumont CA 1936) 94 S.W.2d 809, writ dismissed.

Appellant further asserts there is no evidence and insufficient evidence to support the trial court’s findings concerning the elements of promissory estoppel, to wit, a promise made by Dairyland intended by Dairyland 'to be communicated to Mrs. Bas-night, and reliance upon such promise by Rachel Basnight to her detriment. We do not agree, and hold that the evidence is legally and factually sufficient to support the trial court’s findings concerning the elements of promissory estoppel. Our Supreme Court in Wheeler v. White (Tex.1965) 398 S.W.2d 93, at p. 96 has enunciated the rule of promissory estoppel as follows:

“A promise which the promisor should reasonably expect to induce action or fore-bearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.” At another place on page 96, the Court says: “Where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise cannot afterward be allowed to revert to the previous relationship as if no such promise had been made. This does not create a contract where none existed before, but only prevents a party from insisting upon his strict legal rights when it would be unjust to allow him to enforce them.” Also see Green v. Helmcamp Ins. Agency (Houston 1st CA 1973) 499 S.W.2d 730, NRE; Travelers Indemnity Co. v. Holman (5th Cir. 1964) 330 F.2d 142, 150, 151.

Appellant further contends there is no evidence, and insufficient evidence of a contract between Dairyland and Rachel Bas-night, wherein the trial court found that Dairyland made her an offer to give her a reasonable time in which to pay her premium which was accepted by her prior to her death, by her promise to pay on Monday July 24,1972. We do not agree, but on the contrary hold that the evidence is legally and factually sufficient to support the trial court’s findings of the offer by Dairyland and the acceptance by Mrs. Basnight. See Liverpool and London and Globe Ins. Co. v. Swann (Beaumont CA 1964) 382 S.W.2d 521, no writ.

With the assumption and holding made that coverage existed at the time of the fatal accident on July 20, 1972, we now pass to the problem of whether the Jefferson County Judgment sued upon by Appel-lees is void and thereby subject to collateral attack by Dairyland. We hold that such judgment is not void and therefore not subject to collateral attack by Dairyland.

The Jefferson County Judgment, being against the “Estate of Rachel Basnight, Deceased” is manifestly erroneous, because the “estate” of a decedent is not a legal entity and may not sue or be sued as such. A suit to establish the liability of a decedent should be brought against the personal representative of the estate, or, under appropriate circumstances, against the heirs or beneficiaries of the estate. Price v. Estate of Anderson (Tex.1975) 522 S.W.2d 690, 691.

However, the Jefferson County Judgment, even though erroneous, is not void for this reason: Although the judgment did not recite that it was against “Herbin T. Molbert, Administrator of the Estate of Rachel Basnight, Deceased”; nevertheless said judgment was binding upon him as such by virtue of his active participation in the case as hereinabove described. Since the judgment was binding on him as Administrator, it was not void and not subject to collateral attack.

Ordinarily, res judicata is applicable only between those who are parties or privies to the judgment, and it gives no rights to, or against third parties. An exception, however, exists in those situations wherein it is held that persons though not parties to the lawsuit may, by active or open participation in the trial of the cause, so connect themselves with that litigation that the resulting judgment is res judicata for or against them. American Indemnity Co. v. Fellbaum (1924) 114 Tex. 127, 263 S.W. 908 (rule enunciated on p. 910); Cavers v. Sioux Oil and Refining Co. (Comm.App.1931) 39 S.W.2d 862 opinion approved, rehearing denied 43 S.W.2d 578; Ex Parte Foster (1945) 144 Tex. 65, 188 S.W.2d 382. Also see Miller v. Dyess (1941) 137 Tex. 135, 151 S.W.2d 186.

Under the rules enunciated by our Supreme Court in Fellbaum and Cavers, above cited, we are of the opinion and hold that “Herbin T. Molbert, Administrator” was a real party to the Jefferson County Judgment although not a named party therein.

There is another rule concerning collateral attacks upon a judgment that applies to the case at bar, as stated in Austin Indepen dent School District v. Sierra Club (Tex.1973) 495 S.W.2d 878 at p. 881:

“The judgment of a court of general jurisdiction is not subject to collateral attack except on the ground that it had no jurisdiction of the person of a party or his property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” This rule was further discussed and applied in Deen v. Kirk (Tex.1974) 508 S.W.2d 70. Moreover, in Cooper v. Texas Gulf Industries, Inc. (Tex.1974) 513 S.W.2d 200 at p. 204, our Supreme Court states that “failure to join a party under Rule 19 is not really a jurisdictional matter inasmuch as the court does have subject matter jurisdiction over the action before it; what is involved is a question of whether the court should decline to adjudicate the dispute because certain persons are absent.” Also see Wycough v. Bennett (Dallas CA 1974) 510 S.W.2d 112, NRE.

Dairyland did not raise the defect of non-joinder of Herbin T. Molbert as Administrator of the Estate of Rachel Basnight until the case at bar. As stated before, Dairy-land was timely tendered the defense of the Jefferson County suit and refused same. Under these circumstances, Dairyland is not a stranger to the Jefferson County suit and judgment, and not having timely raised this defect by special exception in the Jefferson County suit has waived this defect. Rule 90; Ranger Insurance Co. v. Rogers (Austin CA 1975) 530 S.W.2d 162, NRE.

Appellant has other points and contentions. We have carefully considered same, and overrule them as being without merit.

Appellees have asserted cross-assignments of error contending that they are entitled to a judgment against Dairyland for the full amount of the Jefferson County Judgment, to wit, $64,869.50. We have carefully considered these cross-points and contentions and overrule them as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.