author: CURTISS BROWN, Chief Justice. CIRE, Justice

text:
    Walter M. EDWARDS et al., Appellants, v. SOUTHAMPTON EXTENSION CIVIC CLUB et al., Appellees.
    No. 1324.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 28, 1976.
    Rehearing Denied Sept. 8, 1976.
    Larry D. Knippa, Heath & Knippa, Houston, Bowen L. Florsheim, Smith, Smith, Dunlap & Cantebury, Dallas, Elliot W. Jones, Mays, Houston, for appellants.
    Carlyle W. Urban, Urban, Coolidge, Pennington & Scott, Houston, for appellees.
   CURTISS BROWN, Chief Justice.

The Southampton Extension Civic Club and twenty-eight individuals (plaintiffs or appellees), representing homeowners within Southampton Place Extension subdivision, filed a suit in the district court of Harris County against eleven individuals and one corporation who had failed or refused, as owners in the subdivision, to execute a document purporting to renew the restrictions in Southampton Place Extension. The plaintiffs sought a judgment declaring that certain deed restrictions had been validly renewed so as to cover all lots facing on eight named streets. After a non-jury trial, the trial court rendered judgment for the plaintiffs. Only three of the several defendants (defendants or appellants) have perfected this appeal. Appellants present eleven points of error. They basically claim that the extension clause of the instrument in question limits the extension of the deed restrictions to a single period of not more than twenty-five years.

Southampton Place Extension subdivision is an addition located in Harris County. By a general warranty deed dated July 1,1925, the tract constituting the subdivision was conveyed by Hermann Hospital Estate to E. H. Fleming, Trustee. This conveyance was made subject to certain restrictions the main thrust of which was to prevent use of the property for business purposes. The parties press different constructions of paragraph 7 of the provisions relating to restrictions:

“(7) The foregoing Restrictions shall apply with respect to each or every lot or tract sold in the said addition for a period of twenty-five (25) years from and after the date hereof and after the expiration of said twenty-five (25) years if the majority of the owners of lots fronting on any street in the said addition shall by written instrument duly acknowledged, and filed for record, signify their desire and purpose to extend the Restrictions for a further period the same may be in such manner extended for a period of twenty-five (25) years or less as may be desired and by a majority of the owners of lots fronting on such street is meant a majority of individuals owning lots in the addition without reference to the amount owned by each.”

In June of 1950 the restrictions were validly renewed for eight streets for a period of twenty-five years. Appellants argue that paragraph 7 should be interpreted to mean that after the expiration of the initial twenty-five year period, the restrictions could be extended for only one further period of •twenty-five years or less, after which they would expire. Appellees argue that this provision should be interpreted to mean that although the restrictions can only be extended for one twenty-five year period at a time, such extensions may continue indefinitely, so long as a majority of the owners on each street agree to do so.

In construing the instrument we think that the following rules of construction should be applied: (1) A deed should be construed so as to ascertain the intention of the parties and give effect thereto. Newsom v. Newsom, 378 S.W.2d 842 (Tex.Sup.1964). (2) This intention should be gathered from the entire instrument construed as a whole. Dallas Joint Stock Land Bank v. Harris, 138 Tex. 84, 156 S.W.2d 963 (1941). (3) Restrictions are generally construed strictly in favor of the grantee and against the grantor, and in favor of the free use of property. MacDonald v. Painter, 441 S.W.2d 179 (Tex.Sup.1969).

The language in the restriction clause (paragraph 7), . . signify their desire and purpose to extend the Restrictions for a further period the same may be in such manner extended for a period of twenty-five (25) years or less,” clearly contemplates a single extension. This single period having been exhausted by the extension of June 30, 1950, the restrictions are not in effect with respect to the appellant Edward’s property on Dunstan Street nor with respect of the property of appellants Mr. and Mrs. Davis on Bolsover.

Paragraphs 1 and 2 of the deed restrictions read as follows:

“(1) The [afc] shall never be erected, permitted, maintained, or carried on upon any of the said property any saloon or place for the sale or manufacture of malt, vinous or spiritous liquors, any foundry, brick yard, cemetery, crematory, or any establishment for the care or cure of persons afflicted with tuberculosis or any institution for the cure or restraint of the mentally impaired or any detention home, reform school, asylum or any institution of like or kindred nature or any slaughter house or tannery or any noxious interest, trade or business;
“(2) That no part of the said property shall ever be used for the purpose of wholesale or retail business of any kind.” (Emphasis added.)

It could be contended, although appellees do not, that the above provisions fall within the rule announced by Chief Justice Calvert in Moore v. Smith, 443 S.W.2d 552 (Tex.Sup.1969) as follows:

“The intention of the grantor-trustor, Cullinan, to restrict the lots against use for business or commercial purposes in perpetuity or indefinitely is clearly evidenced by the language of paragraph 17. He said, in effect, that the lots in Shady-side should never be used for business or commercial purposes, and that no utility poles or lines should ‘ever be erected on any part of said property’ except in a particular space, five feet in width. How he could have expressed an intention to prohibit use of the lots for business or commercial purposes in perpetuity or indefinitely in language which was plainer, less ambiguous, or more positive, can hardly be imagined.” Id. at 555 (emphasis that of the supreme court).

Unfortunately for appellees such contention would strain these specific provisions out of context. In the first place paragraph 7 specifically deals with the duration and extension of the restrictions including paragraphs 1 and 2. Equally important, paragraph 7 expressly provides: “The foregoing restrictions. . . .” The use of this language includes paragraphs 1 and 2 and makes them subject to the provisions of paragraph 7, the extension clause.

Appellants’ points 1 and 2 are sustained. Therefore, with respect to appellants W. A. and Martha Davis on Bolsover Street and appellant Walter M. Edwards on Dunstan Street the judgment is reversed and rendered and the restrictions in question are declared ineffective as to them. With respect to the nonappealing defendants and the streets of Albans Road, Wrox-ton, Sunset, Quenby, Robinhood and Tang-ley the cause is severed and, as severed, the judgment of the trial court is affirmed. Costs are taxed against appellees.

Reversed and rendered in part and affirmed in part.

CIRE, Justice

(dissenting).

I respectfully dissent.

My brethren interpret paragraph (7) as meaning as a matter of law, that the restrictions were to expire after one twenty-five year renewal. If paragraph (7) were the only relevant provision in the deed, I might be inclined to agree with the majority opinion. In examining the deed in question, however, I find paragraphs (1) and (2) of the restrictions (quoted in the majority opinion) are also material to the question of the grantor’s intention concerning the ultimate duration of the restrictions.

While recognizing the rule stated by the majority that restrictions are generally construed strictly in favor of the grantee and against the grantor, and in favor of the free use of property, I feel there are other, equally well-settled rules of construction that require viewing the provision in question from a different perspective. See generally, Annot., 175 A.L.R. 1191 (1948). First and foremost is the rule that the ultimate purpose in construing a deed is to ascertain the intention of the parties, to the end that their purpose may be effectuated. Newsom v. Newsom, 378 S.W.2d 842 (Tex.Sup.1964); Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442 (1935); Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Comm’n App.1928, jdgmt. adopted); Wald v. West MacGregor Protective Association, 332 S.W.2d 338 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.). The intention of the parties must be gathered from the entire instrument construed as a whole, and not from some isolated clause or paragraph. Dallas Joint Stock Land Bank v. Harrison, 138 Tex. 84, 156 S.W.2d 963 (Tex.Sup.1941); Bumpass v. Bond, 131 Tex. 266, 114 S. W.2d 1172 (1938); Williams v. Rabb, 161 S.W.2d 121 (Tex.Civ.App.—Texarkana 1942, writ ref’d). Courts should seek to harmonize and give effect to all provisions of a contract so that none will be rendered meaningless. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Parker v. Delcoure, 455 S.W.2d 339 (Tex.Civ.App.— Port Worth 1970, writ ref’d n. r. e.).

The majority’s construction renders meaningless the deed’s provisions indicating the grantor’s wish that the restrictions should be permitted to continue indefinitely. I cannot agree with this. In order to harmonize all provisions of the deed, the trial court interpreted paragraph (7) in conjunction with paragraphs (1) and (2) to allow indefinite extensions of the restrictions for periods of twenty-five years or less, so long as a majority of the owners on each street agree to do so. Considering the instrument in its entirety, I do not agree with the majority that this interpretation is incorrect as a matter of law. I think the ambiguity in the deed created an issue of fact to be resolved by the trial court. Appellant has attacked the trial court’s resolution of that fact issue only by “no evidence” points. I would, therefore, hold that we are bound by the well-settled rule that the judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). In determining this question the evidence must be viewed in the light most favorable to appellees, rejecting all evidence favorable to appellants. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). With these rules in mind, I believe that the language contained in paragraphs (1) and (2) is sufficient evidence to support the trial court’s finding as to the intention of the original subdivider. See Moore v. Smith, 443 S.W.2d 552 (Tex.Sup.1969).

I would affirm the trial court’s judgment.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    Louis ROMANO, Appellant, v. DEMPSEY-TEGELER & CO., INC., Appellee.
    No. 1213.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 28, 1976.
    Rehearings Denied Sept. 8, 1976.

      William Emerson Wright, Wright & Ton-dre, Houston, for appellant.
    J. Eugene Clements, Sewell, Junell & Riggs, Houston, for appellee.
   COULSON, Justice.

Louis Romano brought suit against Dempsey-Tegeler & Co., Inc., a securities broker, for conversion of bonds in his margin account. Dempsey-Tegeler filed a counterclaim against Romano on the margin account for the debt accruing thereunder. After a jury trial, the court entered judgment non obstante veredicto that Romano take nothing from Dempsey-Tegeler and that Dempsey-Tegeler recover on its counter-claim against Romano. We reverse and remand.

Romano filed suit against Dempsey-Te-geler on August 8,1969 for failing to transfer his margin account and the bonds therein to Eastman-Dillon, another securities broker. Romano pled that Dempsey-Tegeler breached its agreement to transfer his margin account and that Dempsey-Tegeler converted the securities in his margin account. Dempsey-Tegeler filed its counterclaim against Romano on March 24, 1972 for debt accruing on Romano’s margin account transactions.

On August 26, 1974 trial commenced before a jury which returned a verdict on September 5, 1974. The jury found that Dempsey-Tegeler wilfully converted the L.T.V. bonds of Romano on January 9, 1970; that the fair market value of the bonds on the date of the conversion was $163,000.00; and, that on the date of conversion Romano’s debt owing on the bonds was $146,423.96. Furthermore, the jury found that Romano’s transactions with Dempsey-Tegeler did not give rise to an indebtedness owed by Romano to Dempsey-Tegeler. On January 10, 1975 judgment non obstante veredicto was entered that Romano take nothing from Dempsey-Tegeler and that Dempsey-Tegeler recover $68,-155.13, together with interest, and $9,200.00 for attorney’s fees from Romano.

To sustain a judgment non obstan-te veredicto there must be no evidence of probative force upon which the jury could have made its findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). A judgment non obstante veredicto may be entered if a directed verdict would have been proper. Tex.R.Civ.P. 301.

The evidence adduced at trial was sufficient to support the jury’s finding of conversion, which is defined as an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. Restatement (Second) of Torts § 222A.(1) (1965). Because Romano was having problems with Dempsey-Tegeler’s handling of his account, Romano obtained an agreement, evidenced by letter dated April 3, 1969, from Dempsey-Tegeler to transfer his margin account. There was evidence adduced that in 1969 such transfers were customarily accomplished by securities brokers within five to ten days. The account was never transferred. The evidence showed that Dempsey-Tegeler had rehypothecated Romano’s bonds and that their policy was to stall the transfer of margin accounts by making it “extremely difficult to transfer” them. This is some evidence of intentional acts of dominion over Romano’s bonds that seriously interfered with his right of control over them.

However, there is no evidence to support the jury finding that the conversion occurred on January 9, 1970. The proper measure of damages for conversion of chattels which fluctuate widely in value is the highest intermediate value (with interest accruing therewith) between the date of the conversion and the filing of the plaintiff’s suit, or the trial where the suit is promptly tried after filing. Security State Bank of Tahoka v. Spinnler, 78 S.W.2d 275 (Tex.Civ.App.-Amarillo 1935, no writ). Here, trial was not had until over five years after the filing of the suit, therefore the proper measure of damages must be determined as of some date between the date of conversion and the filing of plaintiff’s suit. Romano’s suit was filed on August 8,1969 and the jury found conversion on January 9, 1970. This finding is not supported by any evidence and will not support a proper measure of damages because the date found by the jury does not fall within the time from the date of the conversion to the filing of plaintiff’s suit. Nonetheless, there was evidence of a conversion and an instructed verdict would not have been proper, therefore entry of the judgment non obstante veredicto was-error.

Furthermore, the theory of breach of contract was pled and evidence introduced in support thereof. The trial court refused to submit proper special issues prepared, tendered and requested by Romano on the theory of breach of contract to transfer his margin account. This constitutes reversible error. Tex.R.Civ.P. 279.

Turning to Dempsey-Tegeler’s counterclaim for debts arising by reason of Romano’s margin account, we are faced with consideration of this counterclaim as a sworn account under Rule 185 of the Texas Rules of Civil Procedure. It is apparent that Dempsey-Tegeler’s counterclaim is based on a written margin account with Romano and that the four year statute of limitations applies. Moreover, a margin account will support suit on a sworn account. Guay v. Schneider, Bernay & Hickman, Inc., 341 S.W.2d 461 (Tex.Civ.App.-Waco 1960, writ ref’d n.r.e.).

If Romano’s account was converted by Dempsey-Tegeler, then Dempsey-Tegeler could not sue for debts arising after the date of the conversion and arising out of the converted securities.

We have considered all points of error and reply points. Those not granted herein are overruled.

Reversed and remanded.


author: J. CURTISS BROWN, Chief Justice.

text:
    HARRIS COUNTY, Appellant, v. E. Paul WILKINSON et ux., Appellees.
    No. 1368.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 28, 1976.
    Rehearing Denied Sept. 8, 1976.

      Billy E. Lee, Asst. County Atty., Joe Re-sweber, County Atty., Houston, for appellant.
    Jack E. Urquhart, David J. Beck, Fulbright & Jaworski, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

E. Paul Wilkinson and his wife, Susan Wilkinson (the Wilkinsons or appellees), filed suit against Harris County (the County or appellant) and others to recover interest on a sum of money awarded to the Wilkinsons some two years after it had been paid into the registry of the court pursuant to an interpleader suit. Prior to trial the defendants other than the County were severed from the case. Based on the jury’s answers to four special issues, the trial court awarded the Wilkinsons interest on the sum of $22,485.00 at the interest rate of 6.25% per annum from July 30, 1970 through and including July 3, 1972. Harris County has perfected this appeal, thus continuing its efforts to avoid the thrust of Sellers v. Harris County, 483 S.W.2d 242 (Tex.Sup.1972).

This case has been before us previously, on appeal from the granting of a summary judgment. See Harris County v. Wilkinson, 507 S.W.2d 848 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref d n. r. e.). The history of this litigation is concisely set out in that opinion:

“On July 28, 1970, American General Life Insurance Company filed an inter-pleader in the district court of Harris County. With the filing of such inter-pleader the life insurance company paid into court the sum of $29,979.49. On July 3,1972, the parties to that suit announced an agreement to settle it, whereupon the court entered an agreed judgment dividing the money paid into court by the interpleader. Included in that judgment was the following paragraph:
‘It is further ORDERED, ADJUDGED and DECREED that Ray Hardy, District Clerk, pay to the defendants, E. Paul Wilkinson and wife, Susan Wilkinson, all interest accruing on the sum of Twenty Nine Thousand Nine Hundred Seventy Nine and 49/ioo Dollars ($29,979.49) from the date said sum was paid into the registry of this Court to the present date, after the District Clerk has deducted the necessary and reasonable expenses incurred in administering said sum.’
“The District Clerk, relying on Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1656a and sec. 4a of art. 2558a, declined to pay to the Wilkinsons any sum of money as representing the interest that had accrued. Harris County, the District Clerk, and the District Clerk’s surety, Fidelity and Deposit Company of Maryland, were named as defendants. The plaintiffs and the defendants, Harris County and the District Clerk, filed motions for summary judgment. Pursuant to those motions the trial court rendered judgment that the Wilkinsons recover from Harris County the sum of $3,745.15, less the sum of $25 as representing the expense of the District Clerk in administering the fund. The trial court also granted the motion for summary judgment of the District Clerk. Harris County has appealed from the judgment against it, and the Wilkin-sons have appealed from the judgment in favor of the District Clerk.” Id. at 849-50.

That portion of the summary judgment that the Wilkinsons take nothing against the District Clerk was severed and affirmed. Finding that the Wilkinsons had not shown, as a matter of law, the amount of the judgment to which they were entitled, we reversed that portion of the summary judgment against Harris County and remanded the cause for a trial on the merits. The present appeal is from the judgment rendered pursuant to the verdict in that trial.

Appellant contends that there was no evidence to support the answers to any of the four special issues submitted to the jury. We will consider the first three issues together.

Special Issue No. 1 inquired as to the amount of the “Wilkinson Trust Fund” money that had been placed in an interest-bearing account; the jury answered “$22,-485,” or approximately 75% of the total Wilkinson Trust Fund. Special Issue No. 2 inquired as to the dates between which such money was in an interest-bearing account; the jury answered “7/30/70-7/3/72.” Special Issue No. 3 inquired as to the rate of interest during such period of deposit; the jury answered “6.25%”.

In answer to an interrogatory posed by appellees, appellant furnished a list showing all deposits it made between July 30, 1970 and July 13, 1972 transferring funds from its demand (non-interest-bearing) account to a time (interest-bearing) account. Also shown was the rate of interest at which each time deposit earned interest, as well as the amount left in the demand account after completion of each transfer.

The list showed that on July 30,1970, two days after payment into court of the funds involved, appellant deposited $100,000.00 in a time deposit which produced interest at the rate of 7¾%. The list further showed that each deposit into the time account generally represented at least 75% of the total funds in the demand account at the time of that deposit. At one point less than three months after the Wilkinson Trust Fund money was paid into the registry of the court, the total book amount on hand in appellant’s demand account dropped to under $3,000. The list also showed that during the period in question the rates of interest at which money was deposited in the time account averaged higher than 6.25%. Finally, the judgment awarding the fund and interest thereon to the Wilkinsons was signed on July 3, 1972. The evidence supports the findings of the jury that between July 30, 1970 and July 3, 1972, $22,485 of the Wilkinson Trust Fund was on deposit in a time account earning interest at the rate of 6.25%.

Special Issue No. 4 inquired as to the reasonable value of the County’s services in safeguarding the Wilkinson Trust Fund; the jury answered $140. In our first Wilkinson opinion, we concluded that

“[t]he plaintiffs will not have the burden of proof on the issue of the reasonable value of the County’s services on regular trial of this case. The County argues that this amount can not be established because it has not kept separate records as to each of the many trust funds which it holds. That fact will not relieve the County of its burden.” 507 S.W.2d at 851.

See Restatement (Second) of Trusts § 172, comment b (1959).

Since appellant had the burden of proof on the issue of the reasonable value of its services, a “no evidence” point of error is improper and does not invoke our authority to review. See Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App. — Houston [14th Dist.] 1973, writ ref’d n. r. e.).

Appellant continues to argue (as it did in the first Wilkinson case) that the amount of the reasonable value of the County’s services in handling these funds could not be ascertained. We expressly held: “That fact will not relieve the County of its burden.” Therefore, if there was “no evidence” to sustain the jury’s answer of $140 to Special Issue No. 4, the County has failed to discharge its burden of proof and would not be entitled to any allowance for the reasonable value of its services. All of appellant’s points of error have been considered and are overruled. The judgment of the trial court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    CLABORN CORPORATION et al., Appellants, v. WAXAHACHIE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 5573.
    Court of Civil Appeals of Texas, Waco.
    July 29, 1976.
    Rehearing Denied Aug. 26, 1976.
    J. Richard Eakins, Dallas, for appellants.
    C. David Fielder, Ft. Worth, for appel-lees.
   OPINION

McDONALD, Chief Justice.

Appellants Claborn Corporation, et al., appeal from judgment against them for taxes on rental automobiles rendered by the trial court for appellees Waxahachie Independent School District, City of Waxaha-chie, and the State of Texas and Ellis County-

Waxahachie Independent School District and the City of Waxahachie sued appellants for personal property taxes for the years 1973 and 1974 on some 15 to 23 motor vehicles alleged to have tax situs within the School and Cities taxing jurisdiction; and the State of Texas and Ellis County intervened claiming taxes owing to them.

Appellants answered denying any tax liability.

Trial was before the court which rendered judgment for Waxahachie Independent School District for $1544.78 plus attorneys’ fees; for City of Waxahachie for $1541.50 plus attorneys’ fees; and for the State of Texas and Ellis County for $1306.52 plus attorneys’ fees.

Appellants Claborn appeal on 8 points contending the trial court erred in rendering judgment for appellees because:

1) There was no evidence and/or factually insufficient evidence to show appellants’ vehicles were situated in Ellis County.
2) There was no evidence and/or factually insufficient evidence to show appellants’ residence, principal office or principal place of business was situated in Ellis County.

Claborn Corporation was incorporated in Texas in 1969. The charter reflects its registered office was 109 Elm Street, Waxaha-chie, Ellis County, Texas; and that Joe Carlat at that address was one of the initial directors and registered agent. The Corporations charter was forfeited on February 26, 1973 for failure to file franchise tax report, and consequently this tax suit was brought against the Corporation, Morris N. Claborn, Keith Claborn and Janis R. Cla-born individually as officers and directors of the Corporation.

The business of Claborn Corporation was automobile rentals.

During the tax years involved Claborn Corporation registered the automobiles on which taxes are sought in Ellis County, giving 109 Elm Street, Waxahachie, Texas as the address of the registering Corporation.

Appellees introduced their delinquent tax rolls and records, and their tax collectors testified the taxes sued for were due and unpaid. Thus a prima facie case was made against appellants for taxes. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, Article 7326 V.A.T.S.

It then fell on appellants to rebut appel-lees’ prima facie case.

Mrs. Susan Jackson, secretary in the Dallas office of Claborn Corporation testified appellant has about 106 cars rented in Dallas; that no cars that she knows of were rented in Waxahachie; that appellant has 2 rental offices in Dallas; that she doesn’t know “what if anything goes on at 109 Elm Street, Waxahachie”.

Morris Claborn, president of appellant testified that appellants’ principal place of business was Dallas County; that the office in Waxahachie was a registered office only; that he and an employee had registered automobiles of appellant in Waxahachie, Ellis County; that the Corporation has not ever had any office outside Dallas where vehicles were rented.

The place of a corporation’s designated registered office and agent is the domicile of such corporation, although it might not.be its principal place of business. Ward v. Fairway Operating Company, Tex., 364 S.W.2d 194.

Personal property is taxable at the domicile of its owner, unless the property is tangible and has acquired an actual situs of its own in a place other than where the owner is domiciled, in which case it is taxable at the place of its situs. City of Bryan v. Texas Services, Inc., CCA (Waco) NRE, Tex.Civ.App., 499 S.W.2d 750; State v. Crown Central Petroleum Corp., CCA (San Antonio) Er.Ref., Tex.Civ.App., 242 S.W.2d 457.

Applying the foregoing rules of law to the evidence in this case, we think the trial court authorized to believe and impliedly find that the vehicles upon which appellees sued for taxes, had not acquired an actual tax situs of their own in a place other than where the owner was domiciled. Dennis v. City of Waco, CCA (Waco) NWH, Tex.Civ.App., 445 S.W.2d 56.

All appellants’ points and contentions are overruled.

AFFIRMED.


author: MOORE, Justice. DUNAGAN, Chief Justice

text:
    Harry S. PHILLIPS, Appellant, v. INEXCO OIL COMPANY, INC., Appellee.
    No. 954.
    Court of Civil Appeals of Texas, Tyler.
    July 29, 1976.
    Rehearing Denied Sept. 2, 1976.
    Willis Jarrel, Goodwin & Jarrel, Tyler, for appellant.
    Edmund P. Benchoff, Benchoff & Guidry, Nacogdoches, John L. McConn, Butler, Bin-ion, Rice, Cook & Knapp, Dillon J. Ferguson, Houston, for appellee.
   MOORE, Justice.

Appellant, Harry S. Phillips, plaintiff below, brings this appeal from a summary judgment rendered in favor of appellee-de-fendant, Inexco Oil Company.

In 1970, Inexco, being interested in drilling an oil well on a tract known as the Douglas Prospect in Nacogdoches County, Texas, entered into a farmout agreement with Humble Oil & Refining Company whereby certain leases around the Douglas Prospect area were assigned to Inexco. Prior to drilling the well Inexco also entered into a written assignment agreement dated October 21, 1970, whereby appellant, Harry S. Phillips, assigned to Inexco 11 oil and gas leases in the area of the Douglas Prospect tract for a period of 15 months, for and in consideration of the sum of $50 per acre, together with an overriding royalty interest on the leases. The assignment of the leases was made subject to a letter agreement executed by Inexco and Phillips at the time of the assignment of the leases. Omitting its formal parts and other parts not material to this appeal, the letter agreement written by Inexco and addressed to Phillips reads as follows:

“By assignment dated 21 October, 1970, you have transferred and assigned to this Company (Inexco) 11 mineral leases in the above captioned area. In addition, Inexco owns the 44 mineral leases more particularly described in Exhibit ‘A’ hereto. The leases described in said assignment and the leases in Exhibit ‘A’ hereto are collectively referred to as ‘Inexco Leases.’
“In connection with the Inexco Leases, you and Inexco have agreed as follows:
1. “Pursuant to the provisions of a Farm-out Agreement between Inexco and Humble Oil and Refining Company, Inex-co is soon to drill a well in the Douglass area in Nacogdoches County. If said well is plugged and abandoned as a dry hole, Inexco agrees that, prior to its dropping any of the Inexco Leases, you shall have the right and option to purchase all, or any one or more, of them for a consideration of $50.00 per net mineral acre. If said well is plugged and abandoned, Inex-co shall give you written notice at least 30 days prior to dropping any of Inexco’s Leases; you shall then have a period of 30 days from receipt of such notice within which to exercise your option to purchase all, or any one or more, of the leases described in such notice. If you do not exercise your option and consummate the purchase within such 30 day period, your right and option shall terminate and you shall thereafter have no claim of any kind upon any of the Inexco Leases described in said notice.
2.
“In the assignment mentioned above to Inexco, you have reserved certain overriding royalties. As to the Inexco Leases described in Exhibit ‘A’ hereto, which you may acquire pursuant to your option, Inexco shall retain overriding royalties identical to those which you have retained in your assignment to Inexco.
3.
“Upon proper exercise of your option pursuant to the foregoing provisions hereof, Inexco shall tender to you an assignment; * * *
“If the above correctly sets forth the agreement and understanding reached between you and Inexco, please so signify by execution of two copies hereof in the space provided and returning said executed copies to Inexco, whereupon this shall be a valid and binding contract and agreement.”

Prior to the execution of the foregoing letter agreement, the parties, after some discussion, agreed to add the following as a part of their agreement, causing the same to be typed immediately below their respective signatures:

“Subject, however, to the following: Should Harry S. Phillips desire to drill a well in the area prior to either Inexco’s notification to Phillips of its intent to drop any of Inexco leases or prior to the expiration of the 15-month assignment from Phillips to Inexco, Phillips may notify Inexco of his intent and be entitled to reassignment within 30 days of notice of all of Inexco’s leases or any part thereof. He shall pay $50 per net mineral acre for any or a part of the 44 mineral leases described in Exhibit ‘A’ and the 11 mineral leases conveyed by assignment from Phillips to Inexco. No override is to be retained by Inexco as to the 11 mineral leases transferred to Inexco by Phillips. It is further agreed that Inexco will have the option in lieu of reassignment as provided hereinabove to advise Phillips that Inexco will do one of the following: (1) Drill a 100% test well, or (2) drill a joint well with Phillips on terms- mutually agreed upon.”

The assignment, whereby Phillips assigned his 11 mineral leases to Inexco, was made subject to the letter agreement. Under the terms of the assignment, Phillips had the right to reacquire the 11 leases he sold to Inexco upon the expiration of 15 months, provided they were not by that time included in a producing unit. Specifically the assignment provided: “Upon expiration of fifteen (15) months from the date hereof, this assignment, and all rights and interests transferred and assigned hereby, shall lapse and terminate as to each lease described in Exhibit ‘A’ hereto, which is not productive. In this context a ‘productive’ lease is either one upon which a commercially producing well, or a well capable of producing commercially is located, or a lease which is included within a productive pool or unit formed by Assignee.”

It is without dispute that Inexco drilled the well and brought in a gas well and that the well has continued to produce gas in paying quantities. Shortly after the well was brought in, Phillips, by letter dated May 31, 1971, notified Inexco of his intent to drill a well and requested the assignment and re-assignment of fifteen of the leases comprising approximately 640 acres, offering to pay the $50.00 per acre stipulated in the agreement, and offering to drill a well thereon to a specified depth. Not having heard from Inexco within 30 days, Phillips made written demand on Inexco for the assignment and reassignment of the fifteen leases.

When Inexco refused to reassign any of the leases, Phillips instituted the present suit against Inexco alleging that under the “subject however” clause of the contract he was entitled to a reassignment of his 11 leases, together with the 44 leases owned by Inexco, except those which had become subject to unitization agreements by reason of the production of oil or gas thereon. Appellant sought specific performance of the letter agreement, and alternatively for title ¡.⅛ the leases, and for an accounting for oil and gas produced therefrom, or in the alternative for damages for breach of contract. Inexco answered with a general denial and affirmatively alleged that no duty rested on it to assign or reassign the leases because the well contemplated by the agreement had not been “plugged and abandoned as a dry hole” but was completed as a producing well and, therefore, since the contract was predicated upon a contingency which never occurred, Phillips had no right to the leases. Both parties moved for a summary judgment contending they were entitled to a judgment as a matter of law under the terms of the above quoted letter agreement. After a hearing, the trial court denied Phillips’ motion, but granted the motion of defendant, Inexco, and rendered a take nothing judgment against Phillips, from which he perfected this appeal.

We affirm.

In his first supplemental petition appellant alleged that “the agreement of October 21, 1970, consisting of the assignment and the letter with the special contract provisions that were added after the original letter and assignment had been prepared, are not ambiguous and same is not susceptible to more than one interpretation.” Thus, appellant elected to stand on the contract as it was written.

In the absence of allegations raising an issue of ambiguity, the agreement will be enforced as written. Ayers v. Hodges, 517 S.W.2d 589 (Tex.Civ.App.-Tyler 1974, no writ); Sale v. Contran Corporation, 486 S.W.2d 161 (Tex.Civ.App.-Dallas 1972, writ ref’d n.r.e.). The primary concern of the courts is to ascertain and give effect to the true intention of the parties. To achieve this object the courts will examine and consider the entire writing, seeking as best they can to harmonize and give effect to all of the provisions of the contract so that none will be rendered meaningless. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Citizens National Bank in Abilene v. Texas & Pacific Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941). Bearing in mind the foregoing rules of interpretation, we will now examine the agreement as written by the parties.

Under the provisions of paragraph 1 of the letter agreement, it is clear that the parties intend that Phillips was to have an option to repurchase the leases upon the happening of two conditions, to-wit: (1) on the condition that the well to be drilled by Inexco was “plugged and abandoned as a dry hole” and (2) upon Inexco determining to drop the leases. The parties agree that such an interpretation is to be accorded in Paragraph 1. The controversy arises as to the proper interpretation to be accorded the “subject to” clause which the parties added to the letter agreement. Appellant takes the position that the latter clause is a “special provision” and confers on him a right to the assignment and reassignment of the leases under the circumstances delineated therein irrespective of whether the well was “plugged and abandoned as a dry hole.” In other words, appellant takes the position that paragraph 1 and the “subject to” paragraph are divisible parts of the agreement with the latter paragraph defining the rights of appellant without regard to the success or failure of the initial well. Inex-co, on the other hand, takes the position that any right Phillips might have to assignment or reassignment of the leases was conditioned on the well being plugged and abandoned as a dry hole as provided in paragraph 1 and since such contingency never occurred, the summary judgment in its favor must be sustained. We agree with this contention.

In Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823, 824 (1951), the court said:

“Agreements must receive a reasonable interpretation, according to the intention of the parties at the time of executing them, if that intention can be ascertained from their language. In the transactions of business life, sanity of end and aim is at least a presumption, though a rebut-table one. A reasonable interpretation will be preferred to one which is unreasonable.”

Upon considering the letter agreement from its four corners, it is apparent to us that what the parties intended to do was to define their respective rights and obligations in the event the prospective well was plugged and abandoned as a dry hole and Inexco decided to drop the leases. There is nothing in the agreement defining the obligations or rights of the parties in the event the well produced oil or gas although both parties, being experts in the field of oil and gas production, knew of such possibility. The reason why they failed to define their right and obligations in the event of production was no doubt due to the fact that both parties knew that Inexco owned the leases and would continue to own them so long as the leases produced oil or gas in commercial quantities and as a result appellant would have no right to re-acquire them.

Contrary to appellant’s contention, we do not believe the “subject to” clause had the effect of conferring on Phillips a right to re-acquire the leases even though the well was brought in as a producer.

While the term “subject to,” as used in instruments of conveyance, has a well recognized meaning, as used here it is merely an agreement to contract on terms different from that which Inexco originally offered. Originally Inexco offered, in the event the well was plugged and abandoned as a dry hole and the leases were to be dropped, that it would notify Phillips thirty days before dropping the leases and he was to be given a thirty-day option to re-acquire all 55 leases. Under the “subject to” clause, in the event the well was abandoned as a dry hole and Phillips desired to drill a well on the leases, he was not required to wait until Inexco notified him that it intended to drop the leases or until the 15 month assignment expired but instead could speed up his reacquisition of the leases as well as the acquisition of Inexco’s leases by giving the notice provided for therein. Further, the parties agreed that upon Inexco’s receipt of such notice from Phillips, Inexco had the option to drill another “test” well either alone or jointly with Phillips or to assign all the leases to Phillips. Apparently, the purpose of the “subject to” clause was to prevent Inexco, after abandonment of the original well, from keeping Phillips’ leases in effect for the 15 month assignment period without further development by Inexco.

The fact that the “subject to” clause refers to the drilling of another well as being a “test” well is at least some indication that they intended the “subject to” clause to become operative only in the event the first well proved to be nonproductive. Moreover, the fact that the “subject to” clause provided that no notification on the part of Inexco would be necessary is significant. This provision could only have reference to the thirty day notice Inexco was required to give Phillips prior to dropping the leases in the event the well was abandoned as a dry hole. As we view the agreement the parties did not intend the “subject to” clause to become operative unless the contingencies stipulated in paragraph 1 occurred.

Appellant’s interpretation of the “subject to” clause as being operative despite the conditions precedent provided for in paragraph 1 is simply not reasonable. According to appellant’s interpretation, he would have the right to reacquire not only his leases but also those owned by Inexco within minutes after the execution of the agreement, unless Inexco exercised its option to drill another well. Moreover such an interpretation would require Inexco not only to transfer the very lease on which the producing well was situated for the sum of $50 per acre, but would also require Inexco to transfer all other leases in a proven area for $50 per acre. In addition to this, appellant would be in a position to demand that Inex-co continue to drill wells, unless Inexco exercised its option to transfer the Inexco leases to appellant. Such result would be unreasonable and not in accordance with the intent of the parties.

The agreement of the parties was specifically conditioned on the abandonment of the well as a dry hole and on Inexco’s determination to drop the leases.

Where a promise is conditional, the condition precedent must be fulfilled before such promise can be enforced. Where a contract is conditioned on a specified event, the happening thereof is essential to the duty to perform. 17A C.J.S. Contracts § 456a and c; Harris v. Wheeler, 267 S.W. 465 (Tex.Com.App.1924, holding approved); Courreges v. System Freight Service, Inc., 152 S.W.2d 841, 844 (Tex.Civ.App.-El Paso 1941, no writ); Young & Pratt v. Southwest Insulation & Packing Co., 94 S.W.2d 276 (Tex.Civ.App.-Austin 1936, writ dism’d). Since the event or contingency contemplated by the parties never occurred, it follows that Inexco was under no obligation to transfer the leases to appellant.

By his final point of error appellant contends that the trial court erred in rendering a summary judgment because the letter agreement was ambiguous, thus creating a fact question as to the intent of the parties. The point is overruled.

It is well settled that upon appeal a case will not be reviewed on a theory different from that on which it was tried in the court below. American Mutual Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844 (1945); Askey v. Power, 36 S.W.2d 446 (Tex.Com.App.1931, holding approved); Ayers v. Hodges, 517 S.W.2d 589, 592, (Tex.Civ.App.-Tyler 1974, no writ). Appellant alleged in his pleading in the trial court that the letter agreement was not ambiguous and was not susceptible to more than one interpretation. In these circumstances appellant is not in a position to urge that a fact issue was raised because of an ambiguity in the agreement.

The judgment of the trial court is affirmed.

DUNAGAN, Chief Justice

(dissenting).

I respectfully dissent.

In my opinion the letter of agreement which is the basis of this lawsuit is ambiguous and can be resolved only by reference to inconclusive extrinsic evidence. I agree with the majority that where the pleadings do not raise the issue of ambiguity the agreement will be enforced as written. “However, where facts appear in the summary judgment evidence which would justify an amendment of the pleadings, such amendment should not be prevented by entry of final judgment, and summary judgment in such event should be denied regardless of defects which exist in the pleadings of the opposite party.” Edmunds v. Houston Lighting & Power Co., 472 S.W.2d 797, 800 (Tex.Civ.App.-Houston [14th Dist.] 1971, writ ref’d n. r. e.), and the cases cited therein. It has also been held that, “[i]n the event of ambiguity in an instrument which can be resolved only by reference to inconclusive extrinsic evidence, or if there is doubt as to the true meaning of an instrument, if ambiguous, the granting of a summary judgment is improper.” Martin v. First State Bank, Memphis, 490 S.W.2d 208, 213 (Tex.Civ.App.-Amarillo 1973, n. w. h.), and cases therein cited. See Massey v. Aztec Life Ins. Co., 532 S.W.2d 702, 706 (Tex.Civ.App.-Ft. Worth 1976, n. w. h.).

I would reverse and remand this case to the trial court for a determination of intent of the parties.


author: CORNELIUS, Justice.

text:
    Betty (Minyard) STEIN, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 8384.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 3, 1976.
    Rehearing Denied Aug. 31, 1976.

      Betty (Minyard) Stein, pro se.
    Richard E. Gray, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   OPINION

CORNELIUS, Justice.

Appellant, Betty (Minyard) Stein, filed suit against the Highland Park Independent School District and its trustees individually for the abatement of, and to recover damages resulting from, a nuisance. Appellant pleaded that the nuisance arose from the improper construction and maintenance of an addition to a high school building directly across the street from an apartment complex she owned and operated. She alleged that the addition was constructed so its main entrance was located only thirty-nine (39') feet from her property, although the applicable zoning ordinances prescribed that a distance of at least fifty (50') feet should be maintained; that a parking area was maintained in front of the entrance utilizing all available parking space; that the close proximity and nature of the building’s design resulted in continuing and repeated trespasses by students and others upon her property; J;hat she and her property were subject to constant harassment by students, noise, the scattering of debris, and other repeated interferences with her use and enjoyment and her tenants’ use and enjoyment of the property; and that such acts constituted a continuing nuisance which had substantially damaged her property.

Appellees filed a motion for summary judgment which contended they were entitled to judgment as a matter of law. The motion was based upon assertions that ap-pellees were protected from the alleged liability by the doctrine of governmental immunity, that appellant’s action was barred by limitations, and that appellees owed no duty to appellant. The trial court sustained the motion and rendered judgment that appellant take nothing.

The appeal presents thirteen points of error. They are not prepared in conformity with the rules, but in the interest of justice have been considered. The most significant complaint is that summary judgment was not proper.

Appellees’ motion for summary judgment was not supported by affidavits, but was directed solely to the sufficiency of appellant’s pleadings to state an enforceable claim. In ruling upon such a motion, the court must take as true every allegation of the pleadings against which the motion is directed. If the pleadings, when liberally construed, allege material facts sufficient to entitle the pleader to the judgment sought, the motion for summary judgment should be denied. 4 McDonald’s, Texas Civil Practice, Sec. 17.26.8.

Independent school districts are of the same general character as municipal corporations — that is, they are quasi-municipal corporations. Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931); 51 Tex. Jur.2d, Schools, Sec. 6, p. 283. As such they are protected by the doctrine of governmental immunity from liability for torts arising from their performance of governmental functions, except in certain limited instances, not applicable here, where that immunity has been waived by the provisions of the Texas Tort Claims Act. See Braun v. Trustees of Victoria Independent School Dist, 114 S.W.2d 947 (Tex.Civ.App. San Antonio 1938, writ ref’d). But there is a recognized exception to the rule of governmental immunity for municipal and quasi-municipal corporations. It does not shield such entities from liability arising out of the creation or maintenance of a nuisance. Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 (1941); City of Corsicana v. Albritton, 20 S.W.2d 363 (Tex.Civ.App. Waco 1929, writ ref’d); Wiggins v. City of Fort Worth, 299 S.W. 468 (Tex.Civ.App. Port Worth 1927, no writ); City of Haskell v. Webb, 140 S.W. 127 (Tex.Civ.App. Fort Worth 1911, no writ); Donovan v. Royall, 63 S.W. 1054 (Tex.Civ.App.1901, writ ref’d); 40 Tex.Jur.2d, Municipal Corp., Sec. 630, p. 316. A municipal corporation has no more right to create or maintain a nuisance than does a private person. City of Ennis v. Gilder, 74 S.W. 585 (Tex.Civ.App.1903, writ ref’d); 40 Tex.Jur.2d, Municipal Corp., Sec. 630, p. 317. To constitute a nuisance coming within the exception, however, the condition must in some way constitute an unlawful invasion of the property or the rights of others. Gotcher v. City of Farmersville, supra; Braun v. Trustees of Victoria Independent School Dist., supra. And, it has been said that the invasion of those rights must be inherent in the thing or condition itself, beyond that arising merely from its negligent or improper use. Jones v. City of Dallas, 451 S.W.2d 271 (Tex.Civ.App. Dallas 1970, no writ); Steele v. City of El Paso, 417 S.W.2d 923 (Tex.Civ.App. El Paso 1967, writ ref’d n. r. e.); Parson v. Texas City, 259 S.W.2d 333 (Tex.Civ.App. Fort Worth 1953, writ ref’d).

Texas cases have applied the nuisance concept of liability to municipal corporations in the maintenance of dumping grounds and in the construction and maintenance of a sewer. We have found no Texas case imposing such liability on a school district, but the decision in Braun v. Trustees of Victoria Independent School Dist., supra, and the authorities there cited indicate that liability may be imposed when the requisite type of nuisance is alleged and proven. The majority rule in the United States also supports that view. See Annotation, 33 A.L.R.3rd, p. 759. The cases of Kriener v. Turkey Valley Community School Dist., 212 N.W.2d 526 (S.Ct. Iowa 1973), Waymon v. Board of Education, 5 Ohio St.2d 248, 215 N.E.2d 394 (1966) and Ness v. Independent School Dist. of Sioux City, 298 N.W. 855 (S.Ct. Iowa 1941), applied the rule of liability to school districts in the maintenance of a sewage disposal facility, a school parking lot, and a school playground, respectively. The conditions alleged to have constituted a nuisance in Ness, supra, are remarkably similar to those alleged by appellant in this suit.

It will not be easy at the trial for appellant to make proof sufficient to bring her case within the exception to the rule of immunity. But she has pleaded facts sufficient to constitute a cause of action for the type of nuisance coming within the exception, and we cannot say as a matter of law that she will not be able to support such allegations. A material issue of fact was therefore made concerning the applicability of the rule of governmental immunity, and summary judgment was improper unless appellant’s claim is defeated by some other overriding defense. In that respect, appel-lees also asserted the defense of limitations, based upon the fact that the school building was constructed more than two years prior to the filing of appellant’s suit. A suit for nuisance is governed by the two year statute of limitations. 41 Tex.Jur.2d, Nuisances, Sec. 78, p. 656. But here appellant alleged a continuing nuisance, praying for abatement as well as for damages. Limitations is not a defense to an action to abate a continuing nuisance. City of Dallas v. Early, 281 S.W. 883 (Tex.Civ.App. Dallas 1926, writ dism’d); International & G. N. Ry. Co. v. Davis, 29 S.W. 483 (Tex.Civ.App.1895, writ ref’d); 41 Tex.Jur.2d, Nuisances, Sec. 69, p. 640. Nor would appellant be barred from recovery of damages for injuries suffered during the two years immediately prior to the filing of her suit. Appellees’ other defense was that it owed no duty to appellant or, in the alternative, that appellant’s pleadings showed there had been no breach of any duty. As has already been noted, even municipal corporations and school districts owe the duty to use and occupy their property so as not to unlawfully invade the rights or property of others. This is a duty recognized by law, and for the breach of which the law will afford a remedy. Whether or not such duty has been breached in this case was not a matter for determination by summary judgment. For the reasons stated, it was error to grant the motion for summary judgment as to the school district.

Appellant also sued the school trustees in their individual capacity. It is settled that such persons are not liable for acts done within the scope of their duty unless they acted maliciously or from corrupt motives. 51 Tex.Jur.2d, Schools, Sec. 6, p. 283. A careful examination of appellant’s pleadings convinces us that no facts are alleged which would support a conclusion that the trustees acted in such a manner. Summary judgment that appellant take nothing against the trustees in their individual capacities was therefore proper.

The judgment, insofar as it decrees that appellant take nothing against the trustees individually, is affirmed. Insofar as it decrees that appellant take nothing against the school district, it is reversed and appellant’s suit against such district is remanded for trial. Tex.R.Civ.P. 434. Appellant’s other points have been carefully considered, and as it is concluded that they reveal no reversible error, they are respectfully overruled.

      . The School District obtained a zoning permit as a variance from the usual zoning requirements.

      . Tex.Rev.Civ.Stat.Ann., art. 6252-19.

      . See City of Fort Worth v. Crawford, 74 Tex. 404, 12 S.W. 52 (1889); City of Hillsboro v. Ivey, 20 S.W. 1012 (Tex.Civ.App.1892, no writ); and City of Bowie v. Hill, 258 S.W. 568 (Tex.Civ.App. Fort Worth 1923, writ dism’d).

      .See Lindsay v. City of Sherman, 36 S.W. 1019 (Tex.Civ.App.1896, no writ).


text:
    TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Appellant, v. LIBERTY BANK, Appellee.
    No. 1382.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 4, 1976.
    Rehearing Denied Sept. 8, 1976.

      John C. Nabors, J. Michael Dorman, Lid-dell, Sapp, Zivley & Brown, Houston, for appellant.
    Eugene J. Pitman, Charles E. Fitch, De-Lange, Hudspeth, Pitman & Katz, Sam W. Mintz, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Liberty Bank (Liberty Bank or appellee) filed suit against Texas Commerce Bank National Association (Texas Commerce Bank or appellant) and others not material here in trespass to try title, for possession of certain real property, and to remove a cloud on the title to such property. The trial court granted summary judgment for Liberty Bank. Texas Commerce Bank has appealed.

In 1973, Michael J. Kalil purchased certain real property from Cyril J. Smith. Kalil took the property subject to two existing liens in favor of creditors of Smith. The first of such liens was security for a promissory note in the amount of $35,000. The second lien was security for a note in the amount of $81,000. After purchasing the property, Kalil executed a deed of trust to Lloyd L. Bolton, Trustee for Texas Commerce Bank, as a portion of the security for promissory notes in excess of $140,000 executed by Kalil to appellant. This deed of trust represented a third lien on the property in question.

In June of 1974 Kalil conveyed the property to Day-Landon Interests (Day-Landon). Day-Landon financed the purchase with a loan from Liberty Bank in the amount of $187,500. As security for the loan, Day-Landon executed a deed of trust to the property to J. D. Westmoreland, Trustee for Liberty Bank. This deed of trust provided that

“in the event the proceeds of the indebtedness secured hereby as set forth herein are used to pay off and satisfy any liens heretofore existing on said property, then Beneficiary is, and shall be, subrogated to all of the rights, liens, and remedies of the holders of the indebtedness so paid.”

When the Liberty Bank loan transaction was closed, the proceeds of the loan were used to pay off the balance on the $35,000 first-lien note and on the $81,000 second-lien note. However, through clerical error Texas Commerce Bank advised the title company that the amount due on the third lien was $1,319.80. As a result, $64,571.03 of the proceeds of the loan were forwarded to and kept by Kalil, and Texas Commerce was tendered only $1,319.80. Appellant alleges that the erroneous determination of the pay-off figure for its lien was due to the negligence of Liberty Bank and its agent. Liberty Bank asserts that Texas Commerce Bank’s negligence caused the error. The holders of the two senior liens executed releases of their liens. Texas Commerce Bank refused to execute such a release.

Shortly after the loan transaction between Liberty Bank and Day-Landon, Texas Commerce Bank started foreclosure proceedings on its deed of trust lien on the property in question. It is not disputed that Kalil was in default on his indebtedness to Texas Commerce Bank. Liberty Bank’s application for a temporary injunction to prevent Texas Commerce Bank from foreclosing was denied. Texas Commerce Bank proceeded with foreclosure and purchased the property at the Trustee’s sale on October 1, 1974. Subsequently, Day-Landon defaulted on its loan to Liberty Bank, and Liberty Bank proceeded to foreclose on its own deed of trust lien. At its Trustee’s sale, Liberty Bank purchased the property in question for an amount less than the total of the original first and second liens. All of the above facts stand undisputed in the record except for the controversy concerning fault in determining the pay-off amount for the third lien.

In a summary judgment proceeding, it was Liberty Bank’s burden to show that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970); Tex.R.Civ.P. 166-A. Liberty Bank’s position is that as a matter of law it was subrogated to the rights of the holders of the senior liens, and that it therefore purchased the property at its Trustee’s sale free of all encumbrances. Texas Commerce Bank’s position is that Liberty Bank’s negligence in failing to ascertain the correct pay-off amount of Kalil’s indebtedness to appellant precludes the subrogation of Liberty Bank to the rights of the holders of the senior liens.

In our opinion this appeal is controlled by Providence Institution for Savings v. Sims, 441 S.W.2d 516 (Tex.Sup.1969). In that case the proceeds of a loan secured by a deed of trust on real estate were used, pursuant to an express subrogation agreement, to retire part of the indebtedness secured by a first lien on the property. There was an intervening mechanic’s lien. The remainder of the indebtedness secured by the first lien was later subordinated to the deed of trust, which was subsequently foreclosed. The question was whether the purchaser at the foreclosure sale took the property free of or subject to the mechanic’s lien. The court stated:

“By subordinating the lien securing the remainder of its indebtedness to the Hughes Investment [lender’s] deed of trust, it [Republic Bank, original holder of the first lien] agreed that the latter would become a first lien on property. Respondent [holder of the intervening mechanic’s lien] and Nortex [debtor] were not prejudiced in any way by this transaction, and neither could object to the subrogation of Hughes Investment to the lien of the bank." Id. at 519 (emphasis added).

See also Whiteselle v. Texas Loan Agency, 27 S.W. 309 (Tex.Civ.App.1894, writ ref’d); Wilkins v. Gibson, 113 Ga. 31, 38 S.E. 374 (1901).

Appellant’s basic position is that summary judgment should not have been granted because of the fact issues raised relating to negligence and the alleged harm and prejudice to it. Texas Commerce finds prejudice in its contention that $64,571.03 should have been paid to it rather than the debtor. Appellant’s position is untenable. Following the Day-Landon transaction, appellant stood in exactly the same position as before the transaction. Its third lien was subject to the first lien in the amount of approximately $35,000.00 and the second lien in the amount of approximately $81,000.00. Its lien was inferior to these prior and superior liens, but remained in force after the Day-Landon transaction. Upon foreclosure of the two prior and superior liens, the third lien of appellant would have been effective to secure it for any amount bid at the foreclosure sale in excess of the superior liens. No such excess bid was made. The Day-Landon transaction was one in which the Liberty Bank was a lender. It did not involve foreclosure of the prior liens. Instead, Liberty Bank was expressly subro-gated to the prior and superior liens.

Liberty was under no duty to discharge Kalil’s existing indebtedness before lending money to him. Appellant was not placed in a less favorable position by the express subrogation nor by the discharge of the indebtedness secured by the first and second liens. At all material times appellant could have paid the amounts secured by the prior and superior liens and thus become the senior lienholder. This it elected not to do.

The Supreme Court in Sims held that neither actual nor constructive knowledge of an intervening lien would defeat the right of subrogation where a senior lien had been discharged pursuant to an express agreement by the debtor that the lender would be entitled to subrogation. Whatever importance the issue of the lender’s negligence may yet have, it has been relegated by Sims to cases in which the right of subrogation is wholly dependent on equitable principles.

Since in the present case the deed of trust from Kalil to appellee contained an express subrogation clause, similar to the one in Sims, appellee’s right is not wholly dependent on equitable principles. This conclusion is not altered by the fact that appellee obtained releases of the first and second liens rather than taking formal assignments of them. Glasscock v. Travelers Ins. Co., 113 S.W.2d 1005 (Tex.Civ.App.-Austin 1938, writ ref’d). Any alleged negligence on the part of appellee is therefore immaterial. The judgment of the trial court is affirmed.

Affirmed.


author: WARD, Justice.

text:
    Frieda WATTS et al., Appellants-Appellees, v. ALCO OIL & GAS CORPORATION et al., Appellees-Appellants.
    No. 6432.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 4, 1976.
    Rehearing Denied Sept. 1, 1976.

      Hart Johnson, Fort Stockton, I. M. Wilford, Houston, John L. Hill, Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Austen H. Furse, Asst. Atty. Gen., Austin, for appellants-appellees.
    Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Turpin, Smith & Dyer, Irby L. Dyer, Midland, Walter B. Morgan, Jim K. Wilson, Houston, Joe V. Peacock, Odessa, Alexander R. Gonzalez, Fort Stockton, Roy L. Merrill, Houston, for appellees-appellants.
   OPINION

WARD, Justice.

This is a vacancy case brought pursuant to Article 5421c, Tex.Rev.Civ.Stat.Ann., involving land in Pecos County. The tract contains 309.05 acres of land, is rectangular in shape, and is alleged to be between the East lines of Surveys 3, 5, and 6 of Block OW and the West line of Survey 1, Block 203¾⅛, at its Northern end. The tract has its North and South boundary lines 272.1 varas and 224.1 varas in length, respectively, and its East and West boundary lines are some 7,032 varas in length. Trial was before a jury which, in answer to two special issues, determined that certain adjoin-der calls made by O. W. Williams referable to the East line of Block OW and to the West line of Survey 1, Block 203½, were not mistaken calls. The trial Court then entered judgment for the defendants, decreeing no vacancy, and with the claimed vacancy being within Survey 1, Block 203½. This result was achieved in the judgment by disregarding the jury finding to Special Issue No. 1, and by accepting the jury finding to Special Issue No. 2, and honoring the call for adjoinder in Williams’ corrected field notes of Survey 1, Block 203½, dated July 20, 1887, to the East line of Sections 3, 5, and 6, Block OW. The questions presented on appeal are whether adjoinder calls in the corrected field notes of Survey 1, Block 203½, are to be honored over calls for course and distance, and whether the original field notes of Survey 1, Block 203½, could be cancelled and changed by the corrected field notes of 0. W. Williams, dated July 20, 1887. We hold that the adjoinder calls in the corrected field notes of Survey 1, Block 203½, are to be honored over calls for course and distance, that the original field notes of Survey 1, Block 203½, were validly changed and corrected by O. W. Williams, and we affirm the judgment of the trial Court.

Suit was instituted by Ed E. Watts after his vacancy application was denied by the Commissioner of the General Land Office. Frieda Watts was substituted as party plaintiff for Ed E. Watts, who had died. The Attorney General intervened for the State on behalf of the Permanent Free School Fund by a trespass to try title suit for title and possession of the 309.05 acres. The defendants, Marjorie Price Crawford and Mildred Price Simmons, are the owners of the North 1425 acres of Survey 1, Block 203½, and they claim under a 1906 award of Survey 1 to E. Gomez. Survey 1, Block 203½, had been awarded under a “mineral” classification, with the result that the State is the owner of the mineral estate subject to outstanding oil and gas leases, unitization agreements, and the rights of the owners of the soil under the Relinquishment Act. These defendants are known as the Survey 1, Block 203½, defendants. Aleo Oil & Gas Corporation, et al., are a separate group of defendants, and hold interest in Surveys 3, 5, and 6, Block OW, which were patented without mineral reservation by the State. They will be referred to herein as the Block OW defendants.

In the Appellate Court, the State of Texas appears both as Appellant and as Appel-lee, as the judgment decrees no vacancy, but places the 309.05 acre tract within Survey 1, Block 203½. Survey 1, Block 203V2, was classified as mineral land by the Commissioner of the General Land Office before it was awarded to E. Gomez in 1906. Because of the later Relinquishment Act, the awardee or his assigns became the agent of the State of Texas for the execution of ordinary oil and gas leases. As the land is now under an oil and gas lease as a part of Survey 1, Block 203½, the State is receiving a royalty of 3/32nds. The owners of the soil are receiving a like royalty of 3/s2nds. To protect that interest, the State is Appellee, but a very weak one at best. If the 309.05 acre tract of land is vacant land, and is land which the State of Texas is entitled to recover from the Appellees, subject only to the rights of the Appellant Watts as an applicant under Article 5421c, Sec. 6, and the rights of any possible good faith claimants under said Act, the land would then be subject to sale and for lease under the provisions of Article 5421c, Sec. 6, whereby, since the land is within five miles of a producing oil and gas well, the State of Texas would retain a ⅛⅛ or 4/s2nds free royalty in the mineral estate of the tract. The awardee or his assigns, if a good faith claimant, would acquire 13/i6ths of the mineral estate under the tract, as well as the surface estate, by paying the State for the value of the surface estate only, without taking into consideration the value of the mineral estate, or without taking into consideration the value of improvements upon the land. (Article 5421c, Sec. 6(g)). To gain that advantage, the State is Appellant. If the tract in question is determined to be a part of Sections 3, 5, and 6 of Block OW, the State would have absolutely no interest, as those sections were sold by the State without a reservation of any minerals. To defend from that event, the State is again Appellee, and, obviously, a strong one.

Block OW defendants likewise have doubts as to their ultimate appellate position. The Block OW defendants and the Survey 1, Block 203½, defendants entered a written stipulation of record and approved by the trial Judge that since none of the defendants were asserting claims among themselves, and were jointly asserting that there was no vacancy as claimed by the plaintiff and the intervenor State, that as to these two groups of defendants any answers made by the jury to the two special issues submitted, and any judgment thereafter rendered, would be without prejudice to the claim or title of any defendant as against any other defendant.

Special Issue No. 1 inquired if Surveyor O. W. Williams was mistaken in his calls for adjoinder of Block OW and Survey 1, Block 203½, when he wrote his corrected field notes of Block OW on January 11, 1887. The jury answered he was not mistaken. Special Issue No. 2 inquired if Surveyor O. W. Williams was mistaken in his calls for adjoinder of Survey 1, Block 203V2, and Block OW when he wrote his corrected field notes of Survey 1, Block 203½, in July, 1887, and to this issue the jury also answered that he was not mistaken. The trial Court ignored the jury finding on Issue No. 1 on the basis that the matter was settled by the case of Frost v. Socony Mobil Oil Company, 433 S.W.2d 387 (Tex.1968). There, it was held that a vacancy did exist between Surveys 49 and 50 located at the Northern end of the tier of Block OW and the senior L. W. Durrell Surveys to the East. It held that calls for course and distance of the junior OW Surveys prevailed over adjoinder calls where Williams’, the junior surveyor, corrected field notes were based on office surveys and adjoinder calls were the result of his mistake in locating the West line of the senior survey of L. W. Durrell. Because the same tier of OW Surveys was again involved, the jury finding to Special Issue No. 1 was disregarded, and the East line of Sections 3, 5, and 6, Block OW, was held to distance calls of 1618 varas East of the monumented West line of Williams’ East tier of Block OW. That was the same result as was ordered by the Frost judgment. While the Block OW defendants are not contesting the position taken by the Survey 1, Block 203½, defendants, the Block OW defendants do attack the District Court judgment in favor of the State as being erroneous. They do this in two ways: first, that the 309.05 acre tract is a part of Block OW which would result in the State having no interest in the minerals. While this is contra to the position taken by the Survey 1, Block 203V2, defendants, those defendants are protected by the written stipulation made during the trial. Second, since the State sued in trespass to try title and the jury answers were both against the position taken by the State, it had failed to make its case, it had failed to prove title, and judgment should have been entered against the State that it take nothing; that the trial Court was in error in determining the common boundary line in the westerly location, placing the 309.05 acre tract in Survey 1, Block 203½, decreeing to the State title to the mineral estate subject to the rights of the other defendants under the terms of the Relinquishment Act. The prayer of the Block OW defendants is then that the judgment of the trial Court should be affirmed that there is no vacancy, and reversed and rendered to the extent that the State take nothing by its suit.

The case of Frost v. Soeony Mobil Oil Company, supra, is again referred to as the history of the surveys is therein described beginning at page 388 continuing to the second paragraph at page 396. The description and maps in that opinion are applicable, except that senior Section 242, adjoining Sections 255 and 254 shown particularly on Plats No. 1, No. 2 and No. 3 of the Frost opinion, is referred to in the present ease and maps as being called Section 542. Of course, the Frost case was concerned with the vacancy located some 19 miles North from the first section of the Block OW tier, and was only concerned with whether or not the Williams adjoinder calls going East should be honored. Here, the claimed vacancy adjoins Sections 3, 5, and 6 of the Block OW tier, and the problem is over honoring the adjoinder calls going West in the corrected field notes of Durrell’s original field notes for Survey 1, Block 203V2.

Survey 1, Block 203½, is a long, narrow, North-South survey lying between DurrelPs senior surveys Blocks 106,115 and 203 to its East and Williams’ Block OW to its West. It extends 7.5 miles North and South, and to the North of it Survey 2, Block 203½, extends another 6 miles, occupying the land located between Durrell’s senior Blocks 115, 142 and 203 on the East and Williams’ Block OW on the West. The area is shown by Appellee’s plat attached at this point, with the claimed vacancy shown as the darkened area.

To supplement the above, and to point out the problems of the present case, when Williams, after July, 1885, had concluded that Survey 1, Block 203½, was not North of, but in conflict with, senior Survey 255, he prepared and filed in the General Land Office corrected field notes for his own surveys in the East tier of Block OW and for certain of Durrell’s work. His first corrections were his corrected field notes, dated November 13 and 15, 1886, respectively, for Durrell’s Surveys 2 and 3, Block 203, whereby the conflict by Durrell of his Surveys 2 and 3 with senior Survey 255 was eliminated, as shown by Plats Nos. 2 and 3, page 391, of the Frost opinion.

Next, Williams prepared his corrected field notes in January, 1887, for Surveys 1, 2, 3, 5, and 6 in his East tier of Block OW. In the corrected field notes for Survey 1, the original 316 vara call along the North line of Survey 255 was reduced by 282 varas and shown in the corrected field notes as 34 varas. The North line of corrected Survey 1 was given a called distance of 1618 varas, 282 varas less than the original 1900, and each of the significant surveys in the East tier of Block OW, including 3, 5, and 6, was called by the corrected field notes to begin at the Northwest corner of the Survey immediately to the South of it on the monu-mented line, and called to have a West-East distance of 1618 varas and called for adjoin-der with the West line of Durrell’s Survey 1, Block 203V2. As pointed out in the Frost opinion at page 395, the East tier was thus tied to its monumented West line. The negative answer of the jury to Special Issue No. 1 concerned itself with these calls, and was disregarded by the trial Court in accordance with its interpretation of the Frost decision.

Williams then made his corrected field notes of Survey 1, Block 203½, dated, July 20, 1887. The descriptive portion of these corrected field notes, with the new adjoin-der calls underlined, are as follows:

“BEGINNING at a stk. & md. at S.W. corner of Survey No. 10, Block No. 106,
T.S.L. Ry. Co.
THENCE North 6,929.7 varas to S.E. corner Survey No. 2 of this block—
THENCE West 500 varas to a stk. & md. 101.8 varas South of N.E. corner of corrected Survey No. 6. Block OW—
THENCE South 14,517.2 varas to a S.E. corner of Survey No. 1, Block OW in the north line of Survey No. 255—
THENCE S. 86 E. 501 varas to a stake in mound—
THENCE N. 4,577.7 varas to stk. & md.—
THENCE W. 200 varas to S.W. corner Survey No. 4, Block 203—
THENCE N. 3,044.8 varas to N.W. corner said Survey No. 4—
THENCE E. 200 varas to the place of beginning.”

At that time, Survey 1, Block 203½, was State owned land. At that time, too, Williams knew that there had been no award of Survey 1, Block 203V2, and that all land East of his Block OW and West of the East line of Block 203V2 belonged to the State of Texas. These corrected field notes were filed in the General Land Office, and the original field notes of said Survey 1 were marked “cancelled by corrected field notes.” These corrected field notes were then the only approved field notes of record for Survey 1. Thereafter, on November 23, 1906, E. Gomez signed his application to purchase Survey 1, 1179½ acres at a price of $1.50 per acre, and signed his obligation to pay for it if his application was approved. On December 15,1906, the Commissioner of the General Land Office signed the Notice of Award using the same corrected field notes as the description of the land. It is under this award that all Appellees are claiming.

It was the adjoinder calls in these corrected field notes that were in Special Issue No. 2, which inquired if O. W. Williams was mistaken in his call for adjoinder. The jury answer that he was not mistaken became the basis of the judgment which placed the claimed vacancy in Survey 1, Block 203½.

Appellant Frieda Watts has points attacking this finding and the resulting judgment, which in a combined form assert error that the undisputed evidence showed conclusively and as a matter of boundary law that said line should be constructed by and in accordance with the course and distance calls of the corrected field notes, and that the adjoinder calls for Block OW should not be applied. The point, contrary to the order of presentation in the briefs of all parties, will be discussed first because of its close relation to the facts and the resulting law of the Frost case.

The general rules and the general exceptions are settled, and are discussed in both the Frost opinion and in the dissent. In summary, calls for adjoinder will ordinarily prevail over calls for distance. Where the adjoinder call is ascertainable, such calls have the same dignity or rank as a call for a natural or artificial object. The call for adjoinder is like a call for a natural or artificial object, and any conflicting call for course, distance or acreage and the like must yield. This is so, even where the call is for adjoinder with the unmarked but ascertainable lines of an adjacent survey.

“ * * * There is, however, an important exception to the general rule, and petitioners insist that the present case is governed by the exception. When it appears that the call for adjoinder was made through mistake, it may be disregarded and the matter is set at large with the court left free to construct the survey in such manner; as will best give effect to the intention of the parties as determined from the entire description when read in the light of the surrounding circumstances. Stanolind Oil & Gas Co. v. State [129 Tex. 547, 101 S.W.2d 801], supra; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Boon v. Hunter, 62 Tex. 582; State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228.”

See Frost case, page 396. Finally, it is recognized in the case that a mistaken or conjectural adjoinder call is not necessarily shown by a mere variance in distance. Justice Walker then considered the variances in distance and the other matters which were before the trial Court in the Frost case, which enabled the trial Court to conclude that Williams was mistaken as to the location of the West lines of Blocks 142 and 143 of the Durrell Surveys, and that his calls for adjoinder with such blocks in the corrected field notes of Surveys 49 and 50 were made through mistake. Justice Walker then stated that that result was the only reasonable conclusion that could have been made by the trial Court. Two of the factors considered in the Frost opinion which caused the gap are in evidence in this case: first, the West line of Block 203½ is a substantial distance East of where Williams thought it was when he wrote his corrected field notes for the East tier of Block OW; second, the mechanical errors of the two surveyors in departing from their called courses as they worked Northward.

Two other matters should be noted at this time, as they are similar to the facts developed in the Frost case. Williams, in January, 1887, corrected his field notes for the first surveys in his Block OW after he had corrected Durrell’s field notes for Survey 3, Block 203, for the purpose of removing its conflict with senior Survey 255. The corrected field notes of Survey 1, Block 203V2, dated July 20, 1887, also eliminated the conflict at the South between Durrell’s original field notes of this survey and senior Survey 255. At the same time in the correction, Williams reduced the acreage called for in Durrell’s work on Survey 1, Block 203½, from 1280 acres to an acreage of 1179.5. Because of the matters noted, the Appellant argues for a reversal.

On the other side of the coin, other factors are present here which were not in the Frost case, and which enabled the jury in the present case to conclude that Williams was not mistaken in his calls for adjoinder of Survey 1, Block 2031/2, with Block OW when he wrote his corrected field notes of Survey 1, Block 203½ in July, 1887. In the first place, the corrected field notes themselves speak overwhelmingly of the intent of the surveyor to accomplish an adjoinder. An adjoinder is called for on all four sides. The original field notes of Survey 1 had called for adjoinder on the East side to Durrell’s work, but the corrected field notes added additional adjoinder calls for the surrounding surveys to the North, to the West, and to the South. The declaration of intent on' the face of these field notes would have been the same if Williams had concluded his description with the statement that his field notes described all of the land delineated by these surrounding surveys; that Survey 1 was to be bounded by the then existing surveys surrounding it. In the second place, Williams had been on the ground and had constructed the mounds on the West line of his East tier of OW sections. Williams certainly knew the location of the East line of his Block OW, as that was his own line that he had corrected six months earlier. He knew his East line of his East tier of Block OW was 1618 varas East of his own rock mounds which he had set along the West line of that tier of sections. He knew it was located 34 varas South 86° East from the Northwest corner of Survey 255, and he knew that the Northwest corner of Survey 255 was only 788 varas North 4° East from the stone monuments he set at the lower Southeast corner of Survey 1, Block OW. That this monument was situated on the West line of survey 255 is conceded by the Appellants, though they state that he either set or found this monument. So long as the location of the line being called for is ascertainable, the call for adjoinder to the unmarked line has the same dignity or weight as would a call for a natural or artificial object. Kirby Lumber Co. v. Gibbs Bros. & Co., 14 S.W.2d 1013 (Tex.Com.App. B 1929) jdgmt. adopted; Maddox v. Turner, 79 Tex. 279, 15 S.W. 237 (1891); and Phillips Petroleum Co. v. State, 63 S.W.2d 737 (Tex.Civ.App.-Austin 1933, writ ref’d).

Because of the connection between this case and the Frost case, some of the evidence favorable to the position of the Appellant has been discussed. That aside, the Appellant’s point which is presented for determination is that as a matter of law the line should be determined by the course and distance calls of the corrected field notes, and this point requires a finding that the undisputed evidence showed conclusively, and as a matter of law, that Williams was mistaken in his calls for adjoinder with Block OW when he wrote his corrected field notes of Survey 1, Block 203½, in July, 1887. This is a legal sufficiency point, and after having considered only the evidence and inferences tending to support the finding, and disregarding all the evidence and inferences to the contrary which might have been discussed, we find that the evidence is legally sufficient and the point is overruled. Giles v. Kretzmeier, 239 S.W.2d 706 (Tex.Civ.App.-Waco 1951, writ ref’d n. r. e.). The evidence was legally sufficient to justify the finding since the mistake in the field notes was not in the call for ad-joinder, but in the estimated distance to effect that adjoinder. The trial Court then was correct in its determination that the call for adjoinder prevailed over that for distance. Gulf Production Co. v. Camp, Tex.Civ.App., 32 S.W.2d 881, aff’d 122 Tex. 383, 61 S.W.2d 773 (1933).

The Appellant’s next complaints, which were consolidated as Point of Error No. 1, were to the effect that the District Court erred in finding and decreeing that the tract of land claimed to be a vacancy was validly included in Survey 1, Block 203½, under the corrected field notes of O. W. Williams for said Survey 1, since that tract had not been included in said Survey 1 by its original field notes. This point is that under Texas Public Land Law, the 309.05 acre tract could not be included in Survey 1, Block 203V2, by means of the corrected field notes. Certain additional facts will be noted. Survey 1, Block 203½, was awarded to Gomez under Williams’ corrected field notes which called for it to contain 1179.5 acres. Durrell’s Survey 1, Block 203½, was for a tract which had been appropriated under the Confederate Certificate for the School Fund. Those original field notes had shown on their face that they were made for the school portion of Confederate Certificate No. 386 issued to S. A. Hopson by the Commissioner of the General Land Office on the 13th day of August, 1881. The Act of April 9,1881, Chapter CVI, had provided for the grant to permanently disabled Confederate veterans of a land certificate for 1280 acres of land, and had also required that the locator should also locate on the public domain a like amount of land for the benefit of the permanent school fund. Thus, Survey 1 was created. That land was for the benefit of the State school fund and not, on the respective dates of either of the two surveys, for any individual to whom the land was then awarded.

The first award of the land was to E. Gomez in 1906. E. Gomez then conveyed all of Survey 1 to Herman Butz in 1910, who in turn conveyed the South 320 acres to J. A. Poindexter by deed dated December 30, 1913. This deed contained the same metes and bounds description of the tract as in the corrected field notes. Corrected field notes for the South 320 acres of Survey 1 were prepared by A. N. Lee under date December 4,1911, but appeared to have been filed in the General Land Office January 2,1914. The A. N. Lee corrected field notes for the South 320 acres go to adjoinder with Block OW. The State approved these field notes and, upon receipt of payment for the 320 acre tract, the General Land Office issued a patent using the same description.

A. N. Lee filed corrected field notes of the remainder of Survey 1, and these show the remaining North part to contain 1425 acres. These field notes are endorsed to show they were filed in the General Land Office August 2, 1929, and are further endorsed “correct on map for 1425 acres.” At the same time, A. N. Lee also filed in the General Land Office a copy of his plat, dated July 20, 1929, on which he shows his survey of all of Survey 1 and the adjoining Surveys on all sides. This plat shows that his construction has held the surveys in the East tier of Block OW to their called distance of 1618 varas from their West line, and that he fulfilled O. W. Williams’ adjoin-der calls in the corrected field notes of Survey 1, Block 203⅛⅛, by going to adjoinder with Block OW. Lee’s plat recites that the North part of Survey 1 contains 1417 acres, but on the filed field notes, the acreage was recalculated and shown as 1425 acres. Lee’s plat and field notes show the East-West dimensions for this North part as 692 varas at its South end and 790 varas at its North end, as compared to the questioned calls of 500 varas in Williams’ corrected notes. Mr. Draper, testifying for the Appellant Watts, admitted that every acre of the 309.05 acres sought by the Appellant and the State was included within the aforesaid 1929 field notes by A. N. Lee. The 309.05 acres are therefore shown as “surveyed land” in the field notes, maps and records of the General Land Office.

Thereafter, the Price Estate applied for a patent of the South part of the North part of Survey 1, containing 479 acres. The County Surveyor, Jack Silliman, prepared field notes of the 479 acres, and filed a plat showing the acreage. Mr. Silliman testified that his construction followed the work of A. N. Lee as shown on Lee’s 1929 plat and has Survey 1 in adjoinder position with Block OW. His survey of the 479 acres was accepted by the State, which accepted payment and patent issued for the 479 acres.

The remaining North 946 acres of the North 1425 acres has not yet been patented, but the purchase price and all interest due thereon since 1906 is being paid for by Appellees, Marjorie Price Crawford and Mildred Price Simmons, under the 1906 award to E. Gomez. In summation, as to Survey 1, the South 320 acres was patented February 10, 1914. The South 479 acres of the North 1425 acres was patented July 3, 1957. The remaining 946 acres of the North 1425 acres is being paid for by the Price Ranch now. Thus, the State is being paid by the Appellees for the land which the Appellant now claims is a vacancy. At least since 1929, the General Land Office has had the detailed information as to the reasons for, and the amount of, the additional acreage in Survey 1.

Since the calls for adjoinder control under Williams’ corrected field notes of Survey 1, Block 203½, there was thus present in the 1906 award of Survey 1 to E. Gomez excess acreage over the 1179.5 acres recited in the Survey. The Appellant Watts contends that corrected notes of a survey may not include land which was not included in the original survey, and as applied here, that means that Williams could not by his corrected field notes of July 20, 1887, have included as a part of Survey 1 that land to the West of the West line of that Survey as constructed under the field notes of Durrell. Appellants rely on Atlantic Refining Company v. Noel, 443 S.W.2d 35 (Tex. 1968). There, it was stated that: “In any event, a Land Commissioner is not possessed of power to divest title nor to enlarge titles to lands by the ordering and acceptance of resurveys. It has been the consistent holdings of this court that the acceptance of a resurvey can not authorize the inclusion of lands not included in the original survey.” To the same effect, see Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792 at 801 (1933); State v. Post, 106 Tex. 468 at 500, 169 S.W. 407 at 408 (1914); Ashby v. Ringstaff, 464 S.W.2d 891, 893 (Tex.Civ.App.-Austin 1971, writ ref’d n. r. e.).

Those cases have no application to the facts of the present case. Those cases apply where patents had been granted, or where there were valid locations which had been made, all of which had vested legal rights before the resurvey had been made. There, under the meaning used, the survey had marked some right to acquire a title. In the present case, the State owned all of the land involved at the time of the original survey, at the time of the resurvey, and at the time of the filing of the corrected field notes. It was not until some nineteen years later that the land, as redescribed, was sold after full compliance with the then applicable sales act. At that time, in redescribing Survey 1 to include all of the land situated between the surrounding surveys, the State simply described the land to suit its purpose. So long as the State was dealing with its own land and the rights or title of other parties were not involved, it could resurvey it and redescribe it at its pleasure; the Land Commissioner could thereafter sell those lands he was authorized to sell according to the lines of the original survey, the second survey, or a portion of each. Under this situation, the date of survey had no significance. Allen v. Draper, 254 S.W. 783, modified 256 S.W. 255 (Tex.Com.App. Section A. 1923).

The Appellant Watts’ contention that the State of Texas, before the resurvey, owned the unappropriated public domain, which included the strip in question, that the school fund owned the land which had been appropriated by Durrell by his 1883 original field notes, and that the titles could not be changed by the resurveys is rejected. The State only could complain in the name of the funds involved, and that course it has not chosen to follow. Theisen v. Stanolind Oil & Gas Co., 210 S.W.2d 417 (Tex.Civ.App.-El Paso 1946, writ ref’d n. r. e.). Point of Error No. 1 is overruled.

Any claim that the State might be making that the excess acreage had not been divested from the State is overruled. The State, when the excess was discovered, merely asserted its right to be paid for that acreage. Those demands have been met, and the sale stands as originally made. Willoughby v. Long, 96 Tex. 194, 71 S.W. 545 (1903); Foster v. Duval County Ranch Co., 260 S.W.2d 103 (Tex.Civ.App.-San Antonio 1953, writ ref’d n. r. e.).

Having held that the 309.05 acre tract is a part of Survey 1, Block 203½, the points urged by the Block OW defendants that the acreage is within the Block OW Surveys are all overruled. As to the points of the Block OW defendants urging that a take nothing judgment should have been rendered against the State in its trespass to try title suit, all of those points are also overruled. The evidence was undisputed that Survey 1, Block 203V2, was classified as mineral land by the Commissioner of the General Land Office before the award to E. Gomez in 1906. The interests of the State were proven by the evidence and were correctly protected by the judgment of the trial Court.

All points of all parties appearing as Appellants have been considered, and they are all overruled. The judgment of the trial Court is affirmed.

OSBORN, J., not sitting.