text:
    CLEM v. FULGHUM.
    No. 1382—5979.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    George T. Burgess, of Dallas, for plaintiff in error.
    Crate Dalton and Earl E. Miller, both of Dallas, for defendant in error.
   SHORT, Presiding Judge.

This ease reached the Court of Civil Appeals twice, and is before the Supreme Court the second time. There are two applications for the writ of .error. The controversy involves the right of W. W. Fulghum to rescind the sale of a parcel of land in the city ofl Dallas apparently made by O. E. Clem to him; also to cancel a note for $2,300 given as a part of the consideration, and to recover $200 in cash paid on the trade, and also to recover certain damages alleged to have arisen from special circumstances surrounding the alleged transaction. Upon the original trial, before a jury, Fulghum was given an instructed verdict in his favor, granting him all the relief he sought. The Court of Civil Appeals at Amarillo affirmed the judgment rendered by the district court upon that trial. 4 S.W.(2d) 280. A writ of error Was granted by the Supreme Court, and this Section of the Commission rendered an opinion reversing the judgment of the Court of Civil Appeals at Amarillo, and remanded the case for another trial, upon the ground that Ful-ghum was not entitled, under the testimony, to an instructed verdict. 14 S.W.(2d) 812. Upon the second trial of the case, Fulghum again recovered a judgment based upon certain facts ascertained by a jury, which granted him substantial relief, and which, in effect, canceled the sale to the parcel of land, and gave him a judgment for the $200 purchase money, and also a judgment for $790 special damages. The Court of Civil Appeals at Dallas reversed the judgment of the district court, and remanded the case substantially upon the ground that the testimony, under the pleadings, was wholly insufficient to support the judgment for special damages, and that the testimony was conflicting as to the right of Fulghum to cancel the sale, and recover the $200. In other words, the judgment of the Court of Civil Appeals at Dallas was based upon the insufficiency of the testimony to support the judgment of the trial court. 37 S.W.(2d) 201, 203.

The theory of Clem is to the effect that Fulghum had agreed in writing with one Park to buy a tract of land 50 feet by 2O0i feet on Montreal street, being the first vacant lot 50 feet by 200 feet facing on Montreal street south of Tenth street, and that the allegations of Fulghum’s petition are based on this written contract, whereas the uncontradicted testimony is that Fulghum accepted a deed from Clem to a lot described as 70.4 feet wide by 179 feet deep, which deed was not in accordance with the written contract, and which, having been accepted by Fulghum, showed that he had no right to rely on the written contract, and therefore no right to rescind, by reason of which the Court of Civil Appeals erred in remanding the case for another trial.

The theory of Fulghum, upon .which he apparently must have based his right to sustain the two judgments rendered in his favor by the trial court, is to the effect that while he made a written contract to purchase the lot described as 50 feet by 200 feet on Montreal street, yet he was afterwards informed by the duly authorized agent of Clem, that Clem’s lot, to which the written contract with Park referred, was 70.4 feet wide and 179 feet deep, in place of 50 feet wide and 200 feet deep, and that the written contract, by agreement, was canceled, and the deed was executed by Clem in pursuance of an oral agreement on the part of Fulghum to purchase a lot 70.4 feet wide and 179 feet deep, whereás as a matter of fact Clem only had the right to convey a lot 49.4 feet wide and 16S feet deep, and that Clem had knowledge of the fact that Fulghum intended to build a certain kind of house on this property, and after Fulghum had received the deed, which Clem had executed, he incurred certain expenses preparatory to building this house, in consequence of which he sustained special damages by reason of the fact that he afterwards discovered that Clem did not own the property conveyed to the extent of about 21 feet wide fronting on Montreal street.

Tlie Court of Civil Appeals 'finds that there is no testimony under the allegations of Fulghum’s petition, as a basis for this theory, and no testimony in support of it. We have reached the conclusion that the Court of Civil Appeals was correct in this contention, as well as in the contention that the testimony is conflicting as to the right of Fulghum to rescind. These being questions of fact, the Supreme Court has no authority to set aside the judgment of the Court of Civil Appeals, which remands a case on this ground, especially since we have concluded that a holding by the Court of Civil Appeals of no testimony is tantamount to a holding that the testimony is insufficient to sustain the judgment of the trial court. Fifth National Bank v. Iron City National Bank, 92 Tex. 436, 49 S. W. 368; Tweed v. Western Union Tel. Co., 107 Tex. 265, 166 S. W. 696, 177 S. W. 957; Marshburn v. Stewart, 113 Tex. 607, 254 S. W. 942, 260 S. W. 565; Gray v. Kaliski (Tex. Com. App.) 45 S.W.(2d) 157; Wilson v. Hagins, 116 Tex. 546, 295 S. W. 922; Electric Express and Baggage Company v. Ablon, 110 Tex. 235, 218 S. W. 1030; Wilson v. Freeman, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203; Pollock v. Houston & T. C. Ry. Co., 103 Tex. 69, 123 S. W. 408; Wallace v. Southern Cotton Oil Company, 91 Tex. 18, 40 S. W. 399; Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Choate v. San Antonio & A. P. R. Co., 91 Tex. 406, 44 S. W. 69; Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63.

Fulghum, in his application for the writ of error, contends that the opinion of the Court of Civil Appeals holds differently upon the law of agency and the denial of agency under oath to the opinion of the Supreme Court in Thomason v. Berry (Tex. Com. App.) 276 S. W. 185; and also to the opinion of the Supreme Court in Bradford v. Taylor, 61 Tex. 508, and in San Antonio, etc., Ry. Co. v. Harrison, 72 Tex. 478, 10 S. W. 556, and in International & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545, as well as the opinions of several other Courts of Civil Appeals in certain cases; and also that the opinion ofl the Court of Civil Appeals is contrary to the opinion of the Commission of Appeals upon a former appeal of this case under the identical pleadings and facts.

A reference to( the opinion of the Commission of Appeals in this case, 14 S.W.(2d) 812, supra, discloses that it discussed only one assignment of error. This assignment merely challenged the correctness of the holding of the Court of Civil Appeals that the action of the trial court in peremptorily instructing the jury was correct, and sustained that assignment. That opinion assumed that Ful-ghum’s cause of action was based upon constructive fraud perpetrated by Clem in executing and delivering to him a deed to land, a portion of which he did not own, with knowledge of the circumstances surrounding the transaction. Neither the sufficiency nor insufficiency of the pleadings was involved in the opinion rendered by the Commission of xlppeals. Only the sufficiency of the testimony introduced by Fulghum to support the allegations in his petition was involved, and we held that Fulghum’s own testimony was insufficient to support the allegations of his petition, in view of the fact that there were some circumstances in the case indirectly tending to contradict the truth of some of the material statements made by Fulghum. The Court of Civil Appeals at Dallas, in its opinion, says, among other things: “A' discussion of the situation presented is, in our opinion, unnecessary, as it is obvious the case proven is so materially variant from the case pleaded, it cannot be reasonably contended that an issue was raised as to Clem’s liability for special damages.” This language of the Court of Civil Appeals is evidently based upon the conclusion reached that upon the second trial of the case there was no testimony whatever even tending to show that the written contract, executed between Fulghum and Snow, as the agent of Park, the real owner of the property described in the written contract, to the extent of 49.4 feet wide and 168 feet deep, had been canceled, and'a new contract made, orally, between Snow as the agent of Clem, and Fulghum, by the terms of which Fulghum agreed to buy, and Clem agreed to sell, the lot of land described in the deed, afterwards delivered by Snow, as Clem’s agent, to Ful-ghum, and, further, that even if there had been such testimony, there were no allegations in the petition of Fulghum to the effect that while he had agreed in writing to pxir-chase a parcel of land 50 feet wide and 200 feet deep, yet this contract was afterwards by mutual agreement canceled, and he agreed to buy, and did buy from Clem, through his authorized agent Snow, a parcel of land 70 feet wide and 179 feet deep.

Upon the first trial of the case, it apparently was assumed by the trial court, and by the Court of Civil Appeals, as well as the Commission of Appeals, as reflected by the record, that the pleadings and the testimony were in harmony. At least, if they were not, the point was not discussed. Again it seems to have been assumed upon the first trial and the first appeal that Fulghum was entitled to recover his damages against Clem upon the idea that the written contract was canceled, and a written contract was made orally between Snow, as Clem’s agent, and Fulghum, and that the deed made by- Clem to Fulghum Was in pursuance of this new oral contract, with knowledge on the part of Clem that Ful-ghum intended to use the property for the purpose of building an apartment bouse upon it, and therefore was responsible to Eulghum for the damages resulting from the acceptance by Fulghum as true the recitations in the deed made by Clem to him. The Court of Civil Appeals at Dallas, upon the second appeal, finds as a fact that no such agreement was made between Eulghum and Snow, and of course necessarily finds as a fact that Snow was not Clem’s agent, and the latter was not bound to respond in damages for the mistake which Fulghum made in assuming that the deed represented the true boundaries of the lot. Moreover, the record shows beyond dispute that Eulghum could not recover damages against Clem for the transaction evidenced by contract in writing between Ful-ghum and Park, the true owner of a part of the property described in the contract. So the question of the law of agency under the facts found by the Court of Civil Appeals is not involved. There can be no doubt that when a suit is founded on an instrument in writing, charged to have been executed by the authority of the defendant, evidence showing that the instrument was not executed by the defendant is not admissible unless verified by affidavit. But in this case Clem does not deny that he made the deed, which the testimony shows was in fact made, but upon neither theory heretofore outlined is this principle of law of agency involved. Clem says in his theory that he knew nothing about the mistake made in conveying to Eulghum more land than Park really owned, and therefore was not responsible in damages to Eulghum. Upon the other hand, Eul-ghum says that, while he agreed in writing to purchase from Park a certain described lot, he afterwards rescinded this agreement, and made another, changing the boundary of the lot, all of which was done through Snow, who acted as the agent of Clem. But the Court of Civil Appeals finds that Eulghum sued upon the written contract, and that he offered no testimony to show that the damage he sought was the result of the cancellation of the written contract and the making of a new contract orally. The burden of proof being upon Fulghum with this' finding of the Court of Civil Appeals, he could not recover against Clem. The first assignment of error presented by Eulghum in his application, upon which it was granted, is that the Court of Civil Appeals, upon the second appeal, held contrary to the opinion of the Commission of Appeals upon the first appeal; but it appears that the Court of Civil Appeals finds an utter absence of testimony upon a vital point, upon the second trial, the presence of which testimony at least was assumed to exist upon the first trial. . In other words, the Court of Civil Appeals is not bound by the opinion of the Commission of Appeals, for the reason that the testimony upon the second trial was materially different from what it was assumed to be on the first trial, as to a material matter.

In his application for a writ of error, Clem asserts that Fulghum has no right to rescind the contract evidenced by the deed made by Clem to him, claiming that the Court of Civil Appeals erred in not rendering the case in his favor, denying to Fulghum the right of rescission. On this point the Court of Civil Appeals says, after holding that the ease does not show that Eulghum was entitled to recover special damages against Clem: “But, as the evidence is conflicting on the issue as to the right of plaintiff to rescind, the case will be reversed and remanded for further proceedings. If on retrial facts are found that justify rescission, plaintiff will be entitled to have the purchase-money note for $2,300 canceled, and to recover the $200 paid upon the trade, with legal interest from the date of payment.”

We have examined the statement of facts, and agree with the Court of Civil Appeals as to the fact that the evidence is conflicting on the issue as to the right of Eulghum to rescind. Believing that the opinion of the Court of Civil Appeals states the law of the case,t as presented by the pleadings and the testimony upon the second trial, we recommend that its judgment be affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals affirmed.


source: Caselaw Access Project

author: LEDDY, Judge. CÜRETON, Chief Justice.

license: Public Domain

text:
    CAPLES v. WALKER, Land Com’r, et al.
    Motion No. 10623; No. 1419—6177.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.

      W. H. Flipped and John T. Gano, both of Dallas, and Bon H. Powell, of Austin, for relator.
    James V. Allred, Atty. Gen., for respondents.
   LEDDY, Judge.

On April 21,1932, the relator, W. J. Oaples, was granted leave to file petition for mandamus to compel J. H. Walker, land commissioner, respondent, to award him a mineral lease upon certain land situated in Gregg county, Tex.

The respondent land commissioner has filed a motion herein asking this court to withdraw leave granted relator to file said petition and to dismiss the petition therefor upon the ground that the issuance of a patent covering the land involved to M. T. Cole prior to the filing of relator’s petition constitutes an effective bar to the relief sought by him.

It appears from the record in this proceeding that on August 18, 1931, M. T. Cole, one of the respondents herein, made application to purchase the tract Of land upon which relator seeks a mineral lease, and thereafter on the 16th day of December, 1931, a patent to this land was issued by the land commissioner to the said Cole.

It has been repeatedly held by the Supreme Court that the prior issuance of a patent is an effective bar to the issuance of a writ of mandamus by said court to compel the land commissioner to award to another the land covered by the patent. Fitzgerald v. Robison, 110 Tex. 468, 220 S. W. 768; O’Keefe v. Robison, 116 Tex. 398, 292 S. W. 854; Ray v. Robison, 118 Tex. 331, 15 S.W.2d) 541; Marshburn v. Walker et al. (Tex. Sup.) 42 S.W.(2d) 417; Brown v. Robison, 118 Tex. 484, 17 S.W.(2d) 766; Guenther v. Robison, 118 Tex. 485, 17 S.W.(2d) 765, 32 S.W.(2d) 640.

Relator recognizes the rule laid down in the above cases, but asserts that it is not ap-idieable in the proceeding filed by him, for the reason that there was filed in the Supreme Court on the 13th day of August, 1931, an application for petition to file mandamus in the case of R. R. James, Relator, v. J. H. Walker, Land Commissioner, et al., Respondents, which application was granted by the court on the 10th day of October, 1931; that said proceeding involved an interpretation of the 1931 Mineral Act as applied to an area of land growing out of the correction of the.A. Parke survey, which is the identical proposition advanced by relator in this case.

It is shown, however, that before final hearing James made some character of settlement and abandoned the further prosecution of his claim against M. T. Cole, and that on his motion said mandamus case was dismissed from the docket of the Supreme Court in December, 1931.

Relator contends the Supreme Court acquired jurisdiction over the subject-matter of this controversy in the proceeding instituted by James, and therefore the land commissioner was without authority to issue a patent to this land to Cole until that case had been finally disposed of. To sustain this proposition, he relies upon the case of Jones v. Robison, 104 Tex. 70, 133 S. W. 879. In that case it appears that, after Jones had filed his motion in the Supreme Court for leave to file petition for mandamus, the land commissioner issued a patent for the land to one Coleman. Upon final hearing, the Supreme Court determined that Jones was legally entitled to the land involved, and directed the land commissioner to reinstate his purchase upon the records of the land office and to cancel the patent issued to C.oleman during the penden-cy of said proceeding.

If James had prosecuted his mandamus suit to final judgment arid the Supreme Court had reached the conclusion that he was legally entitled to the land involved, undoubtedly it would have entered an order similar to that made in Jones v. Robison; that is, it would have given direction to the land commissioner to cancel the patent issued to Cole. The reason for the rule announced by the court in the Jones Case is plain. When Jones’ petition was filed in the Supreme Court, that court acquired jurisdiction to decide the validity of the claim therein asserted. The land commissioner could take ño action before Jones’ claim was finally disposed of, which would tend to render ineffective a judgment which might be subsequently rendered by the Supreme Court. The action of that court in compelling the land commissioner to cancel the patent, issued before the final determination of the pending mandamus suit, was the mere exercise of its constitutional authority to protect and preserve its jurisdiction.

Such rule, however, can properly have no application in this case. At the time the land commissioner issued the patent to Cole, there was no proceeding by relator pending in the Supreme Court; hence at that time the court had acquired no jurisdiction over the claim now asserted by him. The land commissioner has taken no action during the pendency of this proceeding which operates to prevent the Supreme Court rendering an effective judgment in this case, as the motion for leave to file petition for mandamus was filed by relator in this court long after the patent had been issued to Cole. The Supreme Court could not consistently order the land commissioner to cancel the Cole patent because of' an interference with its jurisdiction in this ease, as such jurisdiction was not existent at the time said patent was issued.

Relator’s rights are not based upon any assignment from James, nor do they in any way emanate from his claim. The claim set forth in relator’s petition is not one based upon any action taken by James. It is founded upon an alleged compliance by relator with the laws regulating the leasing of mineral lands owned by the state of Texas. Under no theory can it be held that the pendency of James’, mandamus proceeding, which was dismissed before the filing of the petition in this ease, in any way interferes with the jurisdiction of the Supreme Court to render an effective judgment on a claim based upon a different state of facts asserted by another and different party, in an altogether separate and independent proceeding.

We therefore recommend that respondent’s motion be sustained, and that the leave heretofore granted to relator to file petition for mandamus be withdrawn, and that his motion for leave to file petition for mandamus be dismissed.

CÜRETON, Chief Justice.

Leave to file petition for mandamus is withdrawn, and petition is dismissed.


author: LEDDY, Judge. CURETON, Chief Justice.

text:
    W. J. CAPLES v. J. H. WALKER, Land Commissioner, et al.
    Motion No. 10622; No. 1418—6176.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    W. H. Elippen and John T. Gano, both of Dallas, and Ben H. Powell, of Austin, for relators.
    James V. Allred, Attorney General, for respondents.
   LEDDY, Judge.

Respondent J. H. Walker, land commissioner, has filed a motion in this ease asking that the leave heretofore granted relator to file petition for mandamus be withdrawn and the application dismissed, upon the ground that the land‘upon which relator seeks a mandamus to compel him to issue a mineral lease was patented to M. T. Cole prior to the filing of relator’s petition in the Supreme Court.

The question raised by this motion has been determined in favor of respondent’s contention in W. J. Caples, Relator, v. J. H. Walker, et al., Respondents (Tex. Com. App.) 57 S.W.(2d) 17, this day decided. For the reasons there assigned, the motion must be sustained.

We therefore recommend that respondent’s motion be granted, and that leave to file petition for mandamus heretofore granted relator be withdrawn and the application dismissed.

CURETON, Chief Justice.

Leave to file petition for mandamus is withdrawn, and petition is dismissed.


author:
SHARP, Judge.
      CURETON, Chief Justice.

text:
    LONE STAR GAS CO. v. HUTTON et ux.
    No. 1646—6085.
    Commission of Appeals of Texas, Section A.
    March 22, 1933.

      Ben H. Powell, of Austin, and Karl F. Griffith, Roy C. Coffee; and Marshall Newcomb, ail of Dallas, for plaintiff in error.
    A. P. Dohoney, of Paris, for defendants in error.
   SHARP, Judge.

J. R. Hutton and wife filed suit against the Done Star Gas Company for damages which they alleged accrued to their lands, levees, ditches, and matured crops by reason of the construction of the pipe line during the year 1928, and further sought to recover damages for a crop for the year 1929, which they alleged that they did not and could not plant on the land ; that the Lone Star Gas Company, in constructing its pipe line, diverted the natural flow of the waters of certain streams, which caused damages to their lands, crops, ditches, etc. The Lone Star Gas Company answered that the injury was not caused by its negligence but by means beyond its control. It also pleaded a conveyance to it by Hutton and wife of the right of way and easement in the land, with stipulations of liability for damages from construction, operation, and maintenance of the pipe line. The cause was tried before the co'urt without a jury, and judgment was rendered in favor of Hutton and wife against the Lone Star Gas Company for permanent injuries to about thirty acres of land in the amount of $600; to loss of crops for the year 1929, $500; damages to 2.18 acres of land, $75; destruction of matured cotton, $40; damages to levees and ditches, $75, mak-, ing a total of $1,290. The trial court filed findings of fact and conclusions of law. The Court of Civil Appeals at Texarkana affirmed the judgment of the trial court. 37 S.W.(2d) 329.

The gas company contends that the Court of' Civil Appeals erred in affirming the judgment of the trial court because it permitted Hutton and wife a double recovery. This is based upon the ground that the trial court having found, as a matter of fact, that the gas company was liable to Hutton and wife for permanent injury to thirty acres of land, and, having rendered judgment in favor of them against the company for $600, permitted a double recovery in entering judgment in favor of Hutton and wife for loss of crops on the same thirty acres for the subsequent year, 1929. The trial court, among other things, found as follows:

“I find that as a result of the diversion of waters by defendant and causing the same to flow across plaintiffs’ lands plaintiffs suffered damages as follows:
“ ‘Permanent injury to the 30 acres of land above referred to, $600.00.
“ ‘Loss of crop on said 30 acres for the year 1929, $500.00.
“ ‘Injury to the 2.18 acres of land west of the pipe line above referred to, $75.00.
“ ‘Destruction of matured cotton in the field during construction of its pipe line by defendant’s employees, $40.00.
“ ‘Cost of restoring levees and ditches where pipe line crossed same, $75.00, making a total of $1290.00.’ ”

The rule is well settled that all damages resulting to land from permanent injury caused from overflow waters may be recovered in one action. It is equally well established that the measure of damages for permanent injury to land is the difference between its reasonable market value immediately before and immediately after injury. For permanent injury to land, the owner is entitled to recover damages therefor; the award being made to include all injury, prospective as well as present. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.(2d) 57, and cases cited; 13 Tex. Juris, pp. 160,161, and 162.

In addition to the damages sustained to land, the owner is entitled to recover as a measure oí damages to Ms then growing crops thereon the difference between the value of the crop" just before and just after the damage. City of Amarillo v. "Ware, supra, and cases cited therein. But, if the land is not permanently injured, a different rule applies where the land, is caused to overflow by the negligent acts of another, and, if the owner, by reason thereof, is unable to plant and cultivate a crop thereon during that season, he is entitled only to a reasonable rental value of the land, and not the probable value of the crops, less the cost of cultivation. Ft. Worth & D. C. Ry. Co. v. Speer (Tex. Civ. App.) 212 S. W. 762.

In an action, for permanent damages to land, the measure of damages is the decreased value of the land, and, where a recovery for permanent injury is had, no recovery for its rental value is permitted. A recovery for permanent injury would include also the rental value. To permit a recovery of the market and rental value in one case would permit a double recovery for the same damages. Full compensation is given by the recovery of the loss in the value of the land. City of Amarillo v. Ware, supra; City of San Antonio v. Mackey’s Estate, 22 Tex. Civ. App. 145, 54 S. W. 83; San Antonio & A. P. Ry. Co. v. Carpenter (Tex. Civ. App.) 13 S.W.(2d) 929; T. & P. Ry. Co. v. Ford, 54 Tex. Civ. App. 312, 117 S. W. 201; 17 C. J. 74. On the other hand, if the injury is shown to be temporary in its character, the recovery in such case is not the difference between the market value immediately before and immediately after the injury, but the damages which have accrued during the continuance of the injury covered by the period for which the action is brought will be allowed. Any other rule would permit a recovery of prospective damages, which is allowed only where the injury is permanent. Rosenthal v. T., B. & H. Ry. Co., 79 Tex. 325, 15 S. W. 268; 13 Texas Juris, p. 163 ; 8 R. C. B. pp. 483, 484, § 45.

The decisions also definitely settle the rule that there is a difference between a permanent injury and one that is perpetual, and that a recovery can be had where an injury is permanent without it being perpetual. Williams et al. v. Henderson County Levee Improvement District No. 3 (Tex. Com. App.) 36 S.W.(2d) 204. The foregoing contention must be sustained.

It is also contended by the gas company that the Court of Civil Appeals erred in affirming the judgment of the trial court allowing a recovery for damages to lands, crops, ditches, levees, etc., because it is shown that Hutton and wife executed an easement to the gas company for the purpose of constructing, maintaining, and operating pipe, telegraph, and telephone lines and appurtenances thereto over and across their land, and because the Huttons neither alleged nor proved that the gas company could have prevented the damages by the exercise of due care or that the damages were a result of the negligence of the gas company in constructing, operating, and maintaining its pipe, telegraph, and telephone lines across their land, or in doing things attributed to it.

The trial court found that Hutton and wife did on September 21, 1928, for a consideration of $43.75, execute, grant, and convey a right of way and easement to the Lone Star Gas Company for the purpose of constructing, maintaining, and operating pipe lines and appurtenances thereto, including telegraph and telephone lines, over and across 300 acres of land, more or less, and that the gas company buried its pipe line to a sufficient depth so as not to interfere with the cultivation of the soil, and that the gas company 'obligated itself to pay any damages that might arise to growing crops and fences on the land by reason of the construction, operation, and maintenance of its pipe lines; that the consideration recited in the deed was in full satisfaction of every right thereby granted.

The conveyance to the gas company expressly provided that it should have certain rights in and upon certain lands belonging to Hutton and his wife, and the gas company had the right of ingress and egress over and upon the lands for the purpose of exercising the rights given therein. The gas company, under the terms of the conveyance, had a legal right to locate, construct, maintain, and operate such lines across the land, and it is to be presumed that the grantors assented to bear all loss and take all profits which incidentally resulted from the exercise of those rights in a proper manner. If grantee exercised the rights conferred in the conveyance with due care and without negligence, then no damages were recoverable. Houston & E. T. Railway Co. v. Adams, 58 Tex. 476; Mexican National Construction Co. v. Meddlegge, 75 Tex. 634, 13 S. W. 257; Gulf Pipe Line Co. v. Watson (Tex. Civ. App.) 8 S.W.(2d) 957; Texas Pipe Line Co. v. Higgs (Tex. Civ. App.) 243 S. W. 633.

To hold in the face of the provisions contained in the deed that the gas company was not permitted to enjoy those privileges free from damages necessarily incident to the enjoyment' of those rights, and’ permit the assessment of damages not due to the result of negligence or care on its part, would be a violation of its legal rights. The burden rested upon Hutton and wife to allege and prove that the gas company was guilty of negligence in this respect.

This contention will be sustained.

We recommend that both the judgments of the Court of Civil Appeals and the trial court be reversed and this case be remanded to the district court for another trial.

CURETON, Chief Justice.

Judgments of the Court of Civil Appeals and the, district court are both reversed, and cause remanded to the district court.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: I-IARYEX, Presiding Judge. CURETON, Chief Justice.

text:
    BYRNE v. TAYLOR.
    No. 1619—6037.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    R. G. Storey and Thomas, Storey & Grady, all of Dallas, for plaintiff in error.
    Renfro, Dedbetter & McCombs, of Dallas, for defendant' in error.
   I-IARYEX, Presiding Judge.

This suit was brought by Frank F. Taylor against Oran Terry Thompson, H. E. Byrne, and others on a promissory note held by Taylor foi- the use and benefit of the Continental-Illinois Bank & Trust Company of Chicago, for the principal sum of $9,400, and to foreclose a mortgage lien on a certain tract of land in Johnson county. The note was executed January 1, 1920, by Thompson to the Federal Mortgage Company of Dallas, Tex., and was made payable February 1,1930; and attached to the $9,400 note were several interest notes executed by Thompson to the Federal Mortgage Company to cover the annual installments of interest on the main note. These interest notes were negotiable in form, and as above indicated, were payable successively on February 1st, at yearly intervals. On March 18, 1920, the Federal Mortgage Company transferred the main note and the interest notes, by indorsement in blank, to the Merchants’ Trust Company, and also executed an instrument transferring to the latter company the notes and the mortgage lien. The Merchants’ Trust Company, by subsequent mergers, became known successively as the Illinois Merchants’ Trust Company of Chicago, and Continental Illinois Bank & Trust Company of Chicago ; but for the sake of convenience the institution will be hereinafter designated by its original name, Merchants’ Trust Company. The above-mentioned instrument by which the Federal Trust Company transferred said notes and lien to the Merchants’ Trust Company was promptly put of record in Johnson county. On April 11, 1921, Byrne bought the land from Thompson, and assumed payment of the notes which Thompson had executed to the Federal Mortgage Company. Eater Byrne sold the land to others who are'parties to this suit. The case was tried without a jury, and the trial court gave judgment in favor of Taylor against Thompson for the amount sued for, and against all defendants for the foreclosure of the mortgage lien. Enforcement of personal liability for the debt, on the part of Byrne, was denied. The Court of Civil Appeals reversed the judgment in the last-named respect and rendered judgment for Taylor. This action of the Court of Civil Appeals is duly before us for review.

The single question in the case is whether or not Byrne has been released fx-om the note sued on, by his discharge in bankruptcy. The material facts respecting this; so far as need be stated, are substantially as follows:

On July 31, 1925, Byrne filed a voluntary petition in bankruptcy, and was, on that date, duly adjudged a bankrupt; and on February 6, 1926, obtained his discharge in bankruptcy. He listed, among other liabilities, the $9,400 note here involved. Same was listed as follows: “Federal Mortgage Company note secured by Johnson County farm, interest from February 1,1925, $9400.00.” The name of the Merchants’ Trust Company was not listed at all, and said company at no time, during the pendency of the bankruptcy proceeding, had any knowledge, or notice of any character, of said proceeding. Byrne had no notice or knowledge of the fact that the Federal Mortgage Company had transferred the $9,400 note, or that the Merchants’ Trust Company held said note, except such notice or knowledge as may he chargeable against him by reason of the following facts and circumstances, namely:

Prior to the filing of his petition in bankruptcy, Byrne had paid as they fell due, respectively, several of the interest notes. He paid at least one of said notes after the filing of his petition in bankruptcy. Bach one of these interest notes was paid by him to the Federal -Mortgage .Company to whom same had been sent by the Merchants’ Trust Company for collection. Bach of said notes, when paid by Byrne, bore the following indorse-ments: “Pay to the order of-, without recourse,” signed “Federal Mortgage Company by Fred Locher, Treasurer.” “Pay Federal Mortgage Company, Dallas, Texas, or order, for collection only,” signed “Illinois-Merchants Trust Company of Chicago, F. B. Loomis, Cashier.” Byrne admitted that he acquired knowledge of these indorsements on each note, as each of said notes was paid by him, or at least soon after same was paid.

Section 35, chapter 3, of the Bankruptcy ■Law, title 11 TJSCA, provides in part as follows: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as ⅜ * * (third) have not been duly scheduled in time for prooij and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.”

The question in the case is whether or not, in view of the undisputed fact that the Merchants’ Trust Company had no notice or knowledge of said bankruptcy proceedings, and that Byrne failed to list said company as the creditor to whom the debt for $9,400 was due, prevented the discharge of Byrne in bankruptcy from effecting his release from the debt, under the provisions of -the above statute. A solution of this question depends on whether or not the fact that Byrne, at the time the bankruptcy proceedings were begun, and while they were pefading, knew of the in-dorsements which appeared on each of the interest notes which he had paid, establishes as a matter of law that, within the meaning of the above statute, he knew that the Merchants’ Trust Company held the $9,400 note here sued on. We have concluded that this question should be resolved in the negative. The interest notes were themselves in the form of negotiable instruments, and were capable of being negotiated as such, 'separately from the main note for $9,400. 9 C. J. p. 49. Such of them as'were paid by Byrne were, at the time he paid them, detached from the main note, and the indorsements thereon indicated that they had been transferred by th© Federal Mortgage Company. There was nothing on any of said interest notes, and nothing appeared in connection therewith, which was sufficient to bring home knowledge to Byrne that the $9,400 note had been transferred by the payee, the Federal Mortgage Company. To say that because Byrne learned, when he paid the interest note's, that the latter notes belonged to the Merchants’ Trust Company, he became chargeable with knowledge that the !$9,400 note belonged to that company, would be equivalent to saying that the term “if known to the bankrupt,” as used in the above statute, means that where the payor of a series of negotiable notes acquires knowledge that one or more of the series are held by an indorsee, said payor thereby becomes charger able with knowledge that said indorsee holds, also, the rest of the series. The terms of the statute were never intended to bear such a comprehensive meaning. The circumstance that one or more of the series is held by an indorsee is perfectly consistent, in law and in fact, with the ownership of the rest of the series remaining in the payee. In our judgment, the circumstance mentioned cannot be said, as a matter of law, to be sufficient to excite inquiry in respect of the transfer of the rest of the series by the payee, much less to charge the payor with knowledge in that respect.

The constructive notice of the transfer of the notes and mortgage lien, with which Byrne was charged, by virtue of the due recording of such transfer in the lien records of Johnson county, does not come within the meaning of the statute. The bankrupt is not “bound to search the records to ascertain if any assignment has been made. The duty of giving notice rests on the assignee.” 7 Remington on Bankruptcy, § 3567.

From what has been said it follows that the ruling of the trial court to the effect that Byrne was released from the debt herein sued on, by his discharge in bankruptcy, is correct. We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the trial court be in all things affirmed.

CURETON, Chief Justice.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is^ affirmed, as recommended by the Commission of Appeals.


author: SHARP, Judge. CURETON, Chief Justice.

text:
    LYNN COUNTY et al. v. GARZA COUNTY et al.
    No. 1626—6136.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Tickers & Campbell and Lockhart, Gar-rard & Brown, all of Lubbock, for plaintiffs in error.
    Bean & Klett, of Lubbock, N. C. Outlaw, of Post, George Neill and W. W. Price, both of Brownfield, Loyd R. Kennedy and J. L. Winder, both of Morton, Carl E. Ratliff, of Levelland, and Green Harrison, of Crosbyton, for defendants in error.
   SHARP, Judge.

This suit was originally filed to determine the common boundary line between Lynn and Garza counties. Because of the effect of the establishment of such line upon other interested counties, the counties of Lubbock, Yoakum, Cochran, Crosby, Hockley, Terry, and Kent became parties. The cause was tried before the court without a jury. The judge filed findings of fact and conclusions of law, and based upon these findings the boundary line between the various counties was determined. Erom the judgment of the trial court, an appeal was taken to the Court of Civil Appeals at Eastland, and that court reversed and remanded the judgment of the trial court, with instructions. 42 S.W.(2d) 627. The Supreme Court having jurisdiction of this cause by virtue of article 1821, Revised Civil Statutes, as amended in 1929 by the 41st Legislature, chapter 33, section 1 (Vernon’s Ann. Civ. St. art. 1821), granted a writ of error to review the opinion of the Court of Civil Appeals.

The pertinent and controlling parts of the findings of fact and conclusions of law made by the trial court read as follows:

“Findings of Pact
“1. I find that the Counties of Throckmor-ton, Haskell, Stonewall, Kent, Garza, Lynn and Terry, by the Acts creating them, were each made thirty miles square; that the North lines of each of said Counties were, by the Acts creating them, made thirty miles long.
“2. That in said tier of Counties, Kent, Garza, Lynn and Terry, and in addition to those named, Yoakum, are the Counties in the said tier, that are parties to this suit.
“3. That the beginning corner for the North line of said tier of Counties is the North-west corner of Young County.
“4. That the North-west comer of Young County is well qstablished and located on the ground, and was definitely located by the proof in this case.
“5. That the South boundary line, as well as the other boundary lines of Lubbock County, were established, located and marked on the ground, by one J. B. Jones, in 1892; that the Jones South-east corner of Lubbock County is an easily recognized corner on the ground; that the said South boundary line of Lubbock County, as established by J. B. Jones in 1892, is thirty miles long.
“6. That from the North-west corner of Young County to the J. B. Jones South-east corner of Lubbock County, is more than one hundred'and fifty miles.
“7. That the Surveyor appointed by the Court to locate the various boundary lines of the counties involved in this suit, found the South boundary line of Lubbock County to be further South than the said South Boundary Line located by J. B. Jones in 1S92.
“8. That Lubbock County is not asking that their South boundary line be moved any further south than the Jones South boundary line of said County.
“9. That Lubbock County and Crosby County have, for many years, recognized the East boundary line of Lubbock County, as established by J. B. Jones in 1S92, as the dividing line between said Lubbock County and Crosby County.
“10. That Stonewall, Haskell and Throck-morton Counties are not parties to this suit.
“11. That by beginning at the J. B. Jones South-east corner of Lubbock County, and running East thirty miles for the North-east Corner of Garza County, and from the Northeast Corner of Garza County thirty miles east to the North-east Comer of Kent County, there is still left between the North-east Corner of Kent County, and the North-west Corner of Young County, more than ninety miles for the North boundary lines of Stonewall, Throckmorton and Haskell Counties.
“12. I find that the South boundary lines of Baylor, Lamb, Terry, Floyd and Motley Counties, is a well established line upon the ground, and has been for many years recognized as an established line. * * *
“Conclusions of Law
“From the above Findings of Fact, I conclude as a matter of law, that the common corner of Lubbock, Crosby, Garza and Lynn Counties, should be established as the J. B. Jones South-east Corner of Lubbock County, and that the common corner of Garza, Kent, Dickens and Crosby Counties, should be established thirty miles eastward from said J. B. Jones South-east Comer of Lubbock County ; that the common corner of Kent, Stonewall, King and Dickens Counties should be located thirty miles eastward from the common corner of Dickens, Crosby, Garza and Kent Counties, and I conclude that the common corner of Lubbock,' Lynn, Terry and Hockley Counties should be located at the J. B. Jones South-west Corner of Lubbock County, and that the common corner of Terry, Hockley, Cochran and Yoakum Counties, should be located at a point thirty miles westward from the J. B. Jones South-west Corner of Lubbock County, and that the South-west Corner of Cochran County, and the North-west Corner of Yoakum County, should be located on the Texas-New Mexico boundary line, at the point where a line extended westward from the common corner of Cochran, Hockley, Terry and Yoakum Counties, crosses said boundary line of Texas and New Mexico.”

The trial court entered judgment in accordance with the above findings of fact and conclusions of law.

The Court of Civil Appeals disagreed with the judgment of the trial court and held that the trial court should have decreed that:

“ * * * The N.W. corner of Garza county, being also the S.E. corner of Lynn county, should be located at the point of intersection of the parallel of latitude passing through the NW. corner of Young county, and the meridian passing through the N.W. corner of Floyd county. The N.W. corner of Floyd county should, we think, be located for the purpose of determining the meridian by running the agreed courses and distances from the Statutory N.W. corner of Young county rather than from Swindell’s N.W. comer. * * * Under this view the N.W. corner of Garza county and the S.E. comer of Lynn county should be located 758.4 varas south and 846.S varas west of the J. B. Jones S.E. corner of Lubbock county, as marked upon the ground; the said point being also 956.3 varas south and 101.6 varas east of the concrete monument.
“ * * * The judgment of the trial court should have decreed the common corner of Garza, Lynn, Lubbock, and Orosby counties to be as hereinbefore stated; that consistently therewith it should have directed the location of the S.E. corner of Orosby, the N.E. corner of Garza,'and the N.W. comer of Kent counties at the point where the parallel of latitude passing through the N.W. comer of Garza is intersected by the meridian of longitude passing through the Statutory N.E. corner of Floyd county. The S.W. comer of Lubbock, the N.W. corner of Lynn, the N.E. corner of Terry, and the S.W.-corner of Hock-ley counties should be located at the point where the meridian passing through the Statutory N.W. comer of Hale county intersects said parallel of latitude, and that the N.W. corner of Terry, the N.E. comer of Yoakum, the S.E. comer of Ooehran, and S.W. .corner of Hockley counties should be located at the point of intersection of the meridian passing through the Statutory N.W. corner of Lamb county and said parallel of latitude; that the east and west lines of said counties should be located along meridians passing through said corners as located. Since it may be advisable to provide by final judgment for the location of said lines on the ground, the judgment will be reversed and remanded with directions to the trial court to adjudge the location of the boundaries involved in accordance herewith and, if deemed advisable, have an actual survey made and incorporate the result thereof in the final judgment.”

It is contended that, the trial court having found “that Lubbock county and Orosby county have, for many years, recognized the east boundary line of Lubbock county, as established by J. B. Jones in 1892, as the dividing line between said Lubbock county and Orosby county,” which finding is unchallenged, the honorable Court of Civil Appeals erred in adjudging- that the common boundary line between Lubbock and Crosby counties should be fixed along the meridian of longitude extending south from the northwest corner of Floyd county, and that the southeast comer of Lubbock county and the southwest corner of Orosby county should bo fixed on the ground at the point where the meridian of longitude extended south through the northwest corner of Floyd county intersects the parallel of latitude extended west through the northwest corner of Young county, since the line between Lubbock and Crosby counties so fixed by the Court of Civil Appeals would ignore the fact that Lubbock and Crosby counties had recognized the line established by J. B. Jones in 1892 as the dividing line between those two counties.

In 1856 the Legislature created Young county, defining its boundaries (Acts of 1856, 4 Gammel’s Laws, pp. 252, 459). Section 1 of article 9 of the Constitution of this state provides that in creating new counties “no new counties shall be created with a less area than nine hundred square miles, in a square form, unless prevented by pre-existing boundary lines.” In 1876 the Legislature created certain counties out of Young and Bexar territories, 'including those involved in this suit, and defined their boundaries, which fixed the location of the northwest corner of Eloyd county at a point which can be definitely located with reference to the northwest corner of Young county. Acts of 1876, 8 Gammel’s Laws, p. 1070. Thus it will be seen that the northwest comer of Young county is well established and located on the ground. The counties created under that act, lying to the west of Young county, except those touching New Mexico, were to include not less than 900 square miles. At that time this great stretch of public domain was unsurveyed and unsettled, and it was inevitable that there would he irregularities in the establishment of boundary lines between the counties created. As early as 1892 the boundary line between Lubbock and Crosby counties was settled by agreement. That line has been respected, not only by the counties involved, but also by the commissioner of the general land office of this state.

The rule is well settled that counties m,ay settle their boundary dispute®, and, where the line is established “in accordance with the law,” their acts will be approved. In fact, it is the public policy of this state to look with favor upon peaceable boundary agreements between interested counties. It has long been the policy of this state, as reflected in our statutes, to recognize established boundaries agreed upon between counties. Article 1606, R. O. S. 1925, which was first enacted substantially in this form in 1S95, reads as follows: “The county boundaries of the counties in this State as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.” Article 1591, R. S. 1925, provides for suit, if necessary, to establish boundary lines between counties. The Legislature has not only recognized the binding agreements made by counties in accordance with the law fixing their boundary lines, but has also provided in case of a dispute for a settlement of this question.

The foregoing articles of the statute have been repeatedly construed and sustained by the courts of this state. The rule is now well settled that, in case of a disputed boundary line between two or more counties where the line had been established and recognized by the counties interested, and by the commissioner of the general land office of Texas, the law requires that same shall he declared the true line, though not mathematically correct, provided no provision of the Constitution is violated. Stephens County v. Palo Pinto County (Tex. Civ. App.) 155 S. W. 1006; Hale County v. Lubbock County (Tex. Civ. App.) 194 S. W. 678; Pecos County v. Brewster County (Tex. Civ. App.) 250 S. W. 310; Hunt County v. Rains County, 116 Tex. 277, 288 S. W. 805; Hunt County v. Rains County (Tex. Civ. App.) 7 S.W.(2d) 648; Travis County v. Williamson County (Tex. Civ. App.) 4 S.W.(2d) 610.

It will be observed that the Legislature, in creating these counties under the Act of 1876 and defining their boundaries, fixed the northwest corner of Eloyd county at a point which can be definitely located with reference to the northwest corner of Young county. The counties created under that act have functioned for many years. The trial court used and recognized the statutory northwest corner of Young county for the beginning corner of the north line of. Throckmorton, Haskell, Stonewall, Kent, Garza, Lynn, Terry, and Yoakum counties. The court also found that the south boundaries of. Baylor, Lamb, Terry, Eloyd, and Motley counties is a well established line upon the ground, and has been for many years recognized as an established line. The court also recognized the Jones line established in 1892 as the true line between Lubbock and Orosby counties, and concluded that the common corner of Lubbock, Orosby, Garza, and Lynn counties should be established on the Jones southeast comer of Lubbock county. Lubbock county is not asking that its south boundary line be moved any further south than the Jones south boundary line of that county, as it would be authorized to do under the opinion of the Court of Civil Appeals. The trial judge used, in connection with other testimony, the above well-established facts as a basis for the judgment rendered. Each county involved will receive the amount of land required by the Constitution.

The testimony introduced is very voluminous. The trial court had under consideration much evidence touching the boundary lines of many counties not involved here and rendered the judgment above indicated. We have carefully read the record and think that the judgment of the trial court is fully sustained by the testimony.

We recommend that the judgment of the Court of Civil Appeals he reversed, and that the judgment of the trial court be in all respects affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.


author: RYAN, Judge. CÜRETON, Chief Justice.

text:
    THE PRÆTORIANS v. KRUSZ.
    No. 1388—5992.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    T. W. Davidson, of Dallas, for plaintiff in error.
    Leake, Henry, Wozencraft & Frank, of Dallas, for defendant in error.
   RYAN, Judge.

This suit was brought in the district court of Dallas county by defendant in error to recover upon an insurance policy, dated January 15,1929, issued to her deceased husband, William J. Krusz, by plaintiff in error, in the sum of $5,000.

The defense was that the insurance had lapsed because of nonpayment of monthly dues as required, and therefore was not in effect.

Judgment in the trial court for Mrs. Mae Krusz, defendant in error, was affirmed by the Court of Civil Appeals. 36 S.W.(2d) 1043.

The Prsetorians is a fraternal society with a lodge system operating in fourteen southern states; the headquarters or home office is in the city of Dallas and its governing authority is called the “Supreme Senate.” Council No. 1, of which deceased was a member, is a local or subordinate branch, operating under the supreme body. The Worthy Recorder of a local council is required to give an approved bond to the Supreme Senate, conditioned upon the faithful discharge of his duties and proper accounting for all funds coming into his hands; he collects all dues, keeps a record, of the proceedings of the council, and must elosé his collections not later than noon of the twentieth day of each month,' and send in his report to the Supreme Secretary, without delay, with draft, money order, or cashier’s check to cover.

The insured had the privilege of paying premiums or rates, designated in the policy as “dues,” either monthly, quarterly, semiannually, or annually.

Krusz elected to pay dues monthly at the rate of $5 each month.

The policy provides: “If the insured elects to pay monthly, such payments shall be due on the first day of each and every calendar month and must be paid by the twentieth of said month; failure to make any such payment as so provided, shall automatically lapse the policy.” The policy also provides that upon its lapse by failure to pay dues, it may be reinstated by submitting satisfactory evidence of good health and insurability and upon payment of all arrears, together with dues for the. current month. It is also provided in said policy: “(1) No change, modification or' alteration of this certificate shall be made unless endorsed hereon by the President, Vice-President or the Secretary of the Prsetori-ans. The Prsetorians shall not be bound by any promise or representation made by any person unless made in writing by one of said officials. (2) It is agreed by the insured holding this certificate that the certificate, the Charter or Articles of Incorporation, the Constitution and Laws of the Prsetorians, and the application herefor, and the medical examination signed by the applicant, with a.11 amendments to each thereof, shall constitute' the agreement between The Prsetorians and the insured.”

The constitution and by-laws provide:

“Article XX, See. 2. All dues shall be payable for eacli month on or before the first day thereof, and must be paid not later than the 20th. See. 3. It shall be the duty of every member to see that his dues are paid in time to his Worthy Recorder. * * * Members failing to pay dues on time in accordance herewith shall lapse immediately without notice, and all rights, privileges and benefits shall cease at once, except as to any paid up and extended values to which they may be entitled, as hereinafter provided. Notice of lapse may be thereafter sent out by the Secretary, but shall be in the nature of a reminder only, and not a requisite either before or after suspension takes effect.
“Article XXVI, Sec. 1. Recorders have no authority to reinstate members who have lapsed. Sec. 2. Any member whose dues shall not be paid as herein provided shall immediately lapse. To effect reinstatement when lapsed for less than thirty days, a member, while in good health, may deposit with his Worthy Recorder all unpaid dues including those for the current month, and when the Worthy Recorder has satisfied himself that the member has been in continuous good health since the date of lapse, and when the Supreme Senate has received and accepted such duos the reinstatement shall be effective but not otherwise. Sec. 3. To effect reinstatement when lapsed for more than thirty days and less than six months, a member shall furnish a certificate of health signed by him and a like certificate of a Medical Examiner on form prescribed by the Supreme Senate, and shall pay to his Recorder all dues, including those for the current month. Reinstatement shall not be effective until such statements have been approved by the President or Secretary, and notice thereon mailed to the member.”

Such provisions are in pursuance of article 4840, Rev. Stat. 1925, applicable to the Prae-torians, as follows: “The Constitution and laws of the society may provide that no subordinate body nor any of its subordinate officers or members shall have the power or authority to waive any provision of the laws and Constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiaries of members.”

The Recorder might therefore have received the unpaid dues including those for the current month, provided the lapse was for less than thirty days, if he has satisfied himself that the member has been in continuous good health since the date of lapse —no certificate of health or of a medical examiner being required — but no reinstatement would be effected until the Supreme Senate lias received and accepted such dues. Without such receipt and acceptance of said dues by the Supreme Senate, the member is not reinstated.

Whore the lapse has continued for more than thirty days and less than six months, the member can be reinstated only when he has paid to the Recorder all dues, including those for the current month, and furnished a certificate of health signed by him and a like certificate of a medical examiner, on forms prescribed by the Supreme Senate, and when approved by the President or Secretary of the society and notice thereon mailed to the member.

The undisputed record shows that the insured did not pay dues for November, 1929, and the policy therefore automatically lapsed on November 20,1929. Pie was not reinstated during December nor did he pay dues during that month. The insured became ill with appendicitis on January 7,1930, and a physician sent for; on January 14,1930, he was operated upon, and died on January 18, 1930.

As testified by the widow, at her request her brother James G. Munsford “carried the dues” for November and December to the Praetori-ans’ office “at about eight-thirty o’clock or a quarter until nine and her husband was operated on about ten-thirty” ; this occurred on the day the operation was performed.

No reference was made to the condition of the insured’s health 'by Munsford or the Recorder’s clerk, who received the money, but a receipt was given Munsford reading: “Dallas Council No, 1, The Praetorians. Dallas, Texas, January 14, 1939. Received of W. J. Krusz, dues for Nov. and Dec. $10.09 Cert. No. 176550. I. W. Rogers, Recorder, By A.” “Official Receipt to be used only in accordance with the Constitution.” The reverse side reads as follows: “If payment, for which this receipt is issued, was made after the 20th of month for which member is due, it is received upon member’s warranty and declaration that he or she is, and has been, in continuous good health since date payment was due according to constitution of the Order. If any part of payment for which this receipt is issued, is for dues more than thirty days past due, it is received upon the condition and agreement that he or she has no claim whatever upon the Order .until said member’s application for reinstatement is accepted by the Supreme Senate. If not accepted, then the amount of this receipt is to be refunded to said member.”

On January 16, 1930, the following notice was received at the insured’s residence, viz.: “Dallas, Texas, Jan. 15, 1930. Worthy Praetorian : Please send Praetorian Dues for Month of-Jan. 1930 and oblige. Payments are due on 1st and should be paid before 20th of each month. Phone 2-7023, 307-8 Praetorian Bldg. I. W. Rodgers, Recorder, Praetorian Council No. One. If you have paid above dues, disregard this notice.” It was postmarked: “Dallas, Texas, January 15, 1:30 P. M., 1930, Young iStr. Stat. 2.” After receipt thereof, Mrs. Krusz “sent the January dues down” by her brother, the same Mr. J. T. Mnnsford who acted for her in the payment .of the November and December dues. To quote from her testimony: “I do not know what time of day he carried them down, hut it was in the morning sometime, X expect about nine o’clock. Mr. Krusz died at twelve-twenty o’clock on the same day I sent the dues. I sent the January dues on the morning of the ISth, and I sent the November and December dues on the 14th, that was the day he was operated on. That was the day after Mr. Krusz had gone to the hospital.”

Munsford received the following receipt: “Dallas Council No. 1, The Praetorians. Dallas, Texas, Jan. 18, 1930: Received of W. J. Krusz, dues for Jan. $5.00. Cert. No. 176550. I. W. Rodgers, Recorder, By A.” It was the same form of receipt, bore the same indorse-ments, and printed on the reverse side were the same stipulations and conditions as the receipt he had previously received for the November and December payment.

All collections by the Recorder are closed on the 20th day of each month, and he is required to then send in his reports to the Supreme Secretary without delay, accompanied toy draft or money order representing the amount of such collections. Here, the Recorder closed such collections accordingly and by the 25th of the month of January, 1930, had his report in the hands of the iSupreme Secretary with the amounts collected.

The Recorder is not required to report each collection, as received, but these all go in with his general monthly report, made once a month. The report for January, therefore, included the three items for November, December, and January, was made in regular routine, and gave the first notice the supreme officers had for such payments. They placed the amount of such three items in a “Suspense Account” and have deposited it in the registry of court as a tender. Mrs. Krusz testified: “I never have been willing to accept back these dues and if they had been offered to me I would not have accepted them.”

I’roofs of death were made and filed with the Prretorians on January 28, 1930. The claim was rejected and suit was filed on February 18, 1930.

Opinion.

The question in this case is whether, after the policy was forfeited because of nonpayment of dues within thirty days after the November payment became delinquent, the policy was unequivocally recognized by the society and therefore the forfeiture was waived, or, to phrase it differently, whether the society is estopped from asserting such forfeiture, and this suggests the further question whether such a conditional receiving of dues by the Recorder, as is shown in this case, becomes an unequivocal receipt thereof .by the supreme body, even before the latter has knowledge thereof, merely because the Recorder has accepted the same and regardless of the fact that such acceptance was conditional.

Authorities holding that acceptance of premiums, after delinquency in their due payment, is either a waiver or an estoppel or operates as a new contract of insurance, are unanimous in the holding that such acceptance m,ust be unconditional. That is the pivot upon which such cases must turn and the character of such acceptance — whether unconditional or otherwise — depends upon the facts in each case. It is only where 'the acceptance is unqualified or unconditional, that it can he said, as a matter of law, there is an effective waiver.

Thus, in Bailey v. Sovereign Camp, 116 Tex. 160, 286 S. W. 456, 288 S. W. 115, 47 A. L. R. 876, the premium was accepted unconditionally by the local clerk and receipt accordingly issued. The special Supreme Court held that this was an unequivocal act done after the forfeiture had become absolute, was inconsistent with a forfeiture, and constituted a waiver thereof, and “when the company accepted his premium unconditionally, they in effect entered into a new contract of insurance with him.”

In Calhoun v. The Maccabees (Tex. Com. App.) 241 S. W. 101, it was shown that the subordinate “record keeper,” who collected the assessments, forwarded them (with the exception of the last) to the Supreme Tent; it was assumed in the opinion that neither the local tent nor its record keeper had authority to effect a waiver of any forfeiture of the certificate, either past or prospective, so as to bind the Supreme Tent, but the court said that when such collected assessments went to the proper officer of the Supreme Tent and was credited to the insured’s account, such act on the part of the supreme officer was the act of the association itself and constituted a waiver of any forfeiture that had then accrued by reason of a past delinquency, under the rule that any unequivocal act done after the forfeiture has become absolute, which recognizes a continued exercise of the certificate or policy, or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof.

The difference between those cases and the one at bar is that there the payments were received unconditionally, whereas, here the payments' were not received unconditionally, but more in the nature of a deposit subject to approval of the supreme authority, for it is expressly stated in the very receipts which evidence the payments and conditioned on which such payments were received by the recprder, that such payments were received “upon the condition and agreement that he or she,” meaning the insured member, “has no claim whatever upon the order, until said member’s application for reinstatement is accepted by the Supreme Senate. If not accepted, then the amount of the receipt is to be refunded to said member.”

There is nothing equivocal -about that clause in the receipt, and, if it is to be given any effect at all, precludes any support to the contention of defendant in error that the payments of ¿rrearages were accepted unconditionally and operated in law as a waiver.

In Sovereign Camp v. Putnam (Tex. Civ. App.) 206 S. W. 970, the facts were: Putnam became a member of Woodmen of the World in 1899, and there was issued to him a beneficiary certificate in the sum of $8,000, payable to his wife, at his death. At that time he was a railroad clerk or cashier at Beaumont. Under the order’s by-laws, a member entering certain “prohibited occupations” is required to notify the clerk -of the local camp of the fact, whereupon such member’s assessment is increased, failure to pay which forfeited the certificate. In. 1907 Putnam entered the saloon or retail liquor business, one of the “prohibited occupations,” and remained in such business .until his death in June, 1916.

No additional payments or increased assessments were demanded -of Putnam by reason of his being in the saloon business, nor were any such ever paid by him. The clerk of the local camp, from time to time and in the usual way, called at Putnam’s saloon and collected from him, or from his employees, the ordinary or customary dues and assessments; from the time Putnam originally became a member, until his death, the records and minutes of the order show him as a member in good standing of the local camp and that his certificate was in full force and effect and in good standing with the Sovereign Camp-.

The special Court of Civil Appeals held the association liable, not on the ground of waiver but of estoppel, in that the local clerk had notice of all facts relating to, affecting, and controlling the amounts payable by Putnam and demanded and accepted certain sums as being sufficient; that Putnam relied upon this as being correct and all parties for many years acted upon that assumption.

Clearly a different condition of affairs than those in the instant case. .

In Equitable Life Assurance Society v. Ellis, 105 Tex. 527, 147 S. W. 1152, 152 S. W. 625, 627, the facts were that Ellis and the society corresponded and negotiated with a view to keeping the insurance in force by means of a loan on the value of the policy; the question of waiver was submitted to a jury trial and the court held that this was proper. The society wrote Ellis “the society is willing to lend you $1159.00 on the policies to apply toward the payment of the premiums due a short time ago.” Judge Phillips said: “In the estimate of the company they were then either forfeited or in force. They had no middle status. As the company itself regarded them up to the time of Ellis’ death so the law -ought to regard them, and as these letters furnish evidence that down to May 9th the company recognized them a-s existing policies and so dealt with them in the negotiation with Ellis respecting the loan, it was but proper, that the jury should determine the issue.”

Here, there were no such negotiations; here, his brother-in-law, when the insured was uninsurable and ill, a short time — (some two hours) before a major operation was performed on .him, paid to a clerk at the recorder’s office the dues for November and December, and four days thereafter (some three hours before and on the day of his death) paid the dues for January. These payments, as stated above, were received conditionally and in no sense can it be said that such receipt was an unconditional recognition of the continued validity of the policy.

In Mutual Reserve Fund Life Ass’n v. Lovenberg, 24 Tex. Civ. App. 355, 59 S. W. 314, 317, on payment of overdue premiums the insured received a receipt, containing certain conditions to the effect that the insured is in good health and that the receipt of future assessments by the insurer shall not be considered a waiver of the conditions of such receipt. Judge Pleasants, of the Court of Civil Appeals, in disposing of the contention that the association had waived its rights by the acceptance of subsequent dues and mortuary calls upon the policies there involved, said: “The deceased having accepted the conditional receipt for the payment made by him on the 8th day of January, 1897, and -having had an opportunity to know its conditions, his assent to the same will be conclusively presumed, and such receipt beqame a -binding contract between him and the association, and, being a contract in writing, its terms cannot be contradicted or waived, except upon proper allegations and proof of fraud, accident, or mistake. Abram v. Railway Co., 83 Tex. 61, 18 S. W. 321; Griffin v. Bristle, 39 Minn. 456, 40 N. W. 523; Association v. Bozeman, 21 Tex. Civ. App. 490, 52 S. W. 94,” and held that therefore “the issue of waiver is not raised by the evidence in this case,” citing Joyce, I-ns., § 1367; Merchants’ Mut. Insurance Co. v. Lacroix, 45 Tex. 169; Globe Mut. L. Insurance Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387, because under the terms of said receipt “no waiver can be presumed from the payment of said subsequent dues and premiums, in the absence of any evidence showing, or tending to show, that the appellant had any notice, at or before the time such payments were made, that the conditions stated in said receipt ⅜ ⅞ ⅞ ¿pj not esist, or that deceased was not a perfectly healthy man.”

In Travelers’ Protective Ass’n v. Ziegler (Tex. Civ. App.) 250 S. W. 1115, 1117, the insured .on January 15, 1921, paid for a six months’ period and received a receipt or new card stating that he was entitled “to all benefits and privileges of the association until .Tune 30, 1921, and said certificate shall he in force from the date of the payment of the dues until that date.” The insured was killed in an automobile collision on July 2,1921, and it was contended by the beneficiary that the deceased was reinstated on January 15, 1921, and the six months’ payment period commenced then, so that he was not in arrears for dues when he was killed on July 2, but the court said: “That card was accepted without protest or dissent of the insured, and no effort was made in any way to have it corrected. It was admissible as evidencing a subsequent agreement between the parties. Ins. Co. v. Tabor, 111 Tex. 155, 230 S. W. 397; Ins. Co. v. Rosenberry (Tex. Com. App.) 213 S. W. 242; Southland Ins. Co. v. Hopkins (Tex. Com. App.) 244 S. W. 989. * * * The parties recognized that the payment made on January 15, 1921, was only for dues to June 30, 1921, and acted thereon, for deceased received and retained without objection the new card stating that the dues were only to the date named. * * * The insured, the insurer, and the beneficiary so construed the contract, and 'so intended to be bound. That intention and construction qf the contract must be made effective. Mortgage Co. v. Massie, 94 Tex. 339, 60 S. W. 544.”

In N. Y. Life Ins. Co. v. Scott, 23 Tex. Civ. App. 541, 57 S. W. 677, the facts were that a premium due in June was not paid, but a premium due in September was received and placed to the insured’s credit by the 'company’s agent, who notified him that the policy had lapsed for nonpayment of the June premium and its payment and a health certificate were necessary to reinstatement. In October two weeks before his death, while sick, insured sent the amount of premium to the agent, but no health certificate, and was notified that it could not be repoi*ted until the certificate was furnished. The court held that the forfeiture by such nonpayment was not waived by such receipt of premiums.

That case is analogous to this; there the acknowledgment of payment was by letter, hei’e by written receipt containing the conditions upon which i-einstatement would be had, compliance with which became of the very essence of the contract of reinstatement.

The general rule is that where the acceptance or retention of premiums on a life policy is on condition, there is no waiver where the condition is not fulfilled, unless the condition itself is waived. 37 C. J. 537.

We have reached the conclusion that there was no such waiver on the part of the association and that Mrs. Krusz is not entitled to recover on the policy; however, she is entitled to recover the sum of $15 so conditionally paid on account of premiums for said months, November, December, and January, and deposited by plaintiff in error in the registry of the trial court, as a tender.

We therefore recommend that the judgments of the trial court and Court of Civil Appeals be reversed and judgment be rendered in favor of plaintiff in error, except that defendant in error recover the amount of said deposit, to wit, $15, and the clerk of the trial court be directed to pay same to her.

CÜRETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for plaintiff in error.


author: CRITZ, Judge. CURETON, Chief Justice.

text:
    WILLIAMS v. PERRY.
    No. 1638—6064.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Sid Crumpton and Travers Crumpton, both of Texarkana, for plaintiff in error.

      L. 0. Boswell and N. L. Dalby, botli of Texarkana, for defendant in error.
   CRITZ, Judge.

Tbe plaintiff in error, Dee Williams, filed this suit in form of a babeas corpus proceeding in tbe district court of Bowie county, Tex., for the custody of his two minor children, Majorie, a girl about nine, and Bobbie, a boy about seven. Williams alleges that be is the father of these children, and that Mrs. A. A. Perry, defendant in error, is unlawfully detaining them from bis custody and control. Trial in the district court resulted in a judgment awarding the two children to the custody of Mrs. Perry, but giving Williams the right to visit them and have them visit him. This judgment was affirmed by the Court of Civil Appeals. 40 S.W.(2d) 929. Williams brings error.

The trial court heard the evidence and filed the following conclusions of fact:

“1. I find that Majorie! Williams, nine years of age and Bobbie Williams, seven years of age are the children of D. Williams and his former wife, Lucile Williams, who is a daughter of the defendant, Mrs. A. A. Perry. 2. That more than a year before this suit was instituted, the plaintiff abandoned his said wife, and that she with said children went to live with, and lived continuously from that time until some time in the month of February, 1931, with the defendant, and that since said time, said children have been living as before with defehdant. 3. That during the married lifetime of the plaintiff and his wife, Lucile, said children spent a great deal of their time with their Grandmother, the defendant in this suit, and that at all times a great love and affection has existed on the part of the children for their Grandmother, Mrs. A. A. Perry, and that a great love and affection has existed and still exists on her part for them. 4. That after the separation of the plaintiff and his wife, Lucile, that he neglected said children and their support a great deal of the time; that a short time after said separation he filed a petition for a divorce from his wife, and afterwards in the month of March, 1930, a divorce was granted on a cross bill filed by his wife in said divorce proceedings on the accusation of statutory grounds of adultery between the plaintiff and some other woman. 5. That the plaintiff agreed with his said wife that she might have the care and custody of said children but that no' disposition of them was made in the divorce decree. 6. That after a divorce was granted to the plaintiff’s wife that within a few months he married again and married a woman with an unsavory reputation, but that they are not living together at this time. 7. That the plaintiff has no home but lives with his father at Eldorado, Arkansas, and that if the custody of the children was awarded to him he would be compelled to confide their care to his sister who lives at Smackover, Arkansas, and who has a boy of her own who is now seven years of age, and though the plaintiff’s sister would be able to furnish them with a reasonably comfortable place to live that the surroundings would not be as good as at their present location. I further find that the plaintiff’s sister and her family have been associated but casually with these two minor children and are almost strangers to them as far as association is concerned, and that no particular ties of affection exist between said children and the plaintiff’s sister and her family, and that there is no way of knowing whether the relation between these two families of children would be pleasant. 8. That in the month of February 1931, the mother of said minors, Lucile Williams, was adjudged insane and is now in the insane asylum at Austin, Texas. 9. That Mrs. A. A. Perry, the Grandmother, owns her home in the City of Texarkana, Texas, and that while she is in poor financial circumstances she is willing to give said children a home with her, and give them the proper care and training and that she is altogether a proper and suitable person to have their custody, and that her home is altogether a suitable place for said children to live; that it is situated in a good neighborhood, convenient to Church and School, and that there is no other small children in the home and that they would be surrounded there with proper and wholesome influence. I further find that while said children have lived with their Grandmother which has been for considerably more than a year, that they have been regularly sent to school and are well advanced, have been regularly carried to Sunday School and Church by their Grandmother, and that this situation will be continued if said children are left in her care and custody. 10. That said children have reached the age of sufficient discretion to, in a large measure, appreciate their situation and that they very much desire to remain in the home of their Grandmother, and will be much happier if they are left in her custody than if they should be placed in the family of the plaintiff’s sister. 11. That the plaintiff’s conduct in abandoning his wife and his lack of care and concern for the welfare of his children, his association with another man’s wife and his hasty action for divorce and his subsequent marriage to a woman of low character and unsavory reputation, render him subject to severe criticism and call for much reformation on his part, but situated as he is, I feel constrained to find as a fact that he is unable to furnish to his children surroundings as good for their benefit as their present surroundings, and that it is decidedly to the best interest of said children that they be continued in the custody of their Grandmother, at least until the plaintiff has shown some evidence of reformation and has surrounded himself with a situation that will afford said children as good opportunities as they will enjoy in the custody of their Grandmother.”

We have carefully read the entire statement of facts, and in our opinion the ahoye conclusions are fully supported thereby.

In addition to the facts found by the trial court, we think the record further justifies the conclusions in favor of the judgment, that Williams now has a job and is financially able to care for these children, but judging the future by the past, it is very doubtful whether he will do so. We are further justified in concluding that Williams can visit his children and be visited by them as conveniently if they are left with Mrs. Perry as he can if they are placed with his sister out of the jurisdiction of the courts of this state. We further conclude that there is nothing in the way of Williams supporting his children if they are left with Mrs. Perry. Einally, we are justified in concluding from the record, as a whole, that Williams has grossly wronged the mother of these children and by his own outrageous conduct compelled his wife to take the children and leave him and return to her mother’s home. We further conclude in favor of the judgment of the trial court and the facts that Williams is a man of bad moral character, who has abandoned and neglected his wife and children without just cause or lawful excuse, and from the record, as a whole, we think the trial court was justified in concluding that he is a man morally unfit to be intrusted with the training- of these children for citizenship, and the molding of their characters. In connection with this matter we call attention to the fact that' his wife obtained a divorce from him on the ground!? of adultery. This was an adjudication that he “abandoned her and lived in adultery with another woman.” Article 4629, subd. 3, R. G. S-. 1925.

Under the above record, the case is presented to the Supreme Court by two assignments of error. We shall discuss such assignments in the order in which they appear in the application.

The first assignment is as follows: “The court erred in not sustaining plaintiff’s general demurrer to the appellee’s answer because it shows the relation to the minors only as maternal grandmother and not as their legal guardian. Neither do they allege any legal rights by gift or consent to her possession of the children and neither are there allegations or facts showing a disqualification of the father to the custody of his minor children.”

This is a habeas corpus proceeding conducted by a district judge sitting as a court of chancery for the purpose of determining the care and custody of two children of tender years. In such a ease, pleading is of little importance and the judge exercising the jurisdiction of a chancellor has broad equitable powers. In other words, the rule is that the powers of the judge are liberally construed. Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707, 710. As said by Judge Sharp speaking fox this section of the commission in the Tunnell Case, supra, “in our judgment it is more a matter of evidence than a matter of pleading.” Under this rule, the district judge is not bound by any technical rules of pleading, but has a right to hear the full facts and act in the light thereof.

Williams’ second assignment of error is as follows: “Conceding that the defendant in error has legal standing in court and that her control or custody was legal and by reason thereof she would have the right in the district court to invoke the equitable remedy to determine the .best interest of the minors, in such trial the burden of proof would be on the defendant in error to establish such fact by a preponderance of the evidence, and being of such nature as to show the disqualification and incompetency of the parent in order to overcome the presumption of law in favor of the parent that in as much as he has the legal right to his children their best interest would be in his custody.”

A careful reading of the above assignment demonstrates that at best it is only sufficient to raise in the Supreme Court the bare question as to whether there is any probative evidence in the record to sustain a fact finding that Williams is an improper person to have the custody of these two children. The Supreme Court is a' court of law and has no jurisdiction to disturb the fact findings of 'the two lower courts, unless there is no evidence in -the record of probative force to sustain such findings. When we come to examine the findings of the trial court and the record on which it is based, we are driven to the conclusion that there is considerable evidence in the record of probative force supporting the conclusion that Williams is an improper person to have the custody of these children. This being the case, we are not authorized to disturb this judgment on account of the question raised by this assignment.

We recommend that the judgment of the Court of Civil Appeals, which affirms the judgment of the trial court, be affirmed.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals affirmed.


author: HARVEY, Presiding Judge. CURETON, Chief Justice.

text:
    CITY OF ODESSA v. ELLIOTT.
    No. 1631—6257.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Paul Moss, of Odessa, for plaintiff in error.
    J. W. Stovall and Chas. Gibbs, both of San Angelo, for defendant in error.
   HARVEY, Presiding Judge.

This is a suit by the city of Odessa against the defendant in error, George D. Elliott, to recover city taxes for the years 1927, 1928, 1929, and 1930, and to foreclose the statutory lien. The trial court rendered judgment in favor of the city for the taxes claimed for the year 1927, and for a portion of the taxes claimed for the years 1928 and 1929, and denied recovery for the taxes claimed for the year 1930. The Court of Civil Appeals affirmed that judgment.

The trial court and the Court of Civil Appeals correctly held that the city was entitled to recover the taxes for the year 1927, and what follows herein has reference to taxes for the other years. The controversy in this respect goes entirely to the manner in which: the tax levies for those years were made. The defendant in error contends that such levies mostly are invalid because not made by ordinance.

The city is incorporated, under the general statutes, as a city of less than five thousand inhabitants. In December, 1927, the city, by ordinance, duly issued refunding bonds, known as water and sewer bonds, in the sum of $157,000, bearing interest at the rate of 6 per cent, per annum, payable annually. Thei bonds wore for $1,000 each, and were in groups maturing at different dates. The first group consisting of three of the bonds, matured in 1929, and other groups, varying from four to fourteen bonds, were to mature at two-year intervals up to the year 1967. In the ordinance, it was expressly provided, in substance and effect, that a tax be, and “same is hereby,” levied for each year from 1927 to 1967, inclusive, sufficient to pay the bonds and interest as same fell due.

In 1928 the city, by ordinance, duly issued bonds in the sum of $55,000 for street paving. The bonds were for $1,000 each, and were to mature, some singly and others in groups, on. May 1st of each year beginning with the year 1930 and ending in 1968. Interest at the rate of 5½ per cent, per annum, on all the bonds, was payable annually as it accrued. In the ordinance providing for the issuance of the bonds, it was provided: “That to pay the interest on said bonds and create a sinking fund sufficient to redeem them at maturity, a tax of thirty cents (30<f) on each one hundred dollars valuation of all taxable property in the City of Odessa, Texas, shall be annually levied and collected, or so much thereof as shall be necessary, or in addition thereto as may be required, until said bonds with interest thereon have been fully paid; and said tax of thirty cents is here now levied for the current year, and so much thereof as shall be necessary, or in addition thereto as may be required, is hereby levied for each succeeding year while said bonds, or any of them are outstanding,” etc.

In the year 1929, the city, by ordinance, duly issued funding warrants (refunding outstanding city warrants) in the sum of $29,-821.84. The funding warrants were to bear interest at the rate of 6 per cent, per annum, payable annually, and were to mature serially each year from 1931 to 1944, inclusive. The ordinance providing for the issuance of these warrants contains a provision for future tax levies which is in all respects the same as that contained in the above-mentioned ordinance providing for the street paving bonds, except that the named rate is 18 cents instead of 36 cents as there provided.

Except as shown above, there was no tax levy made, by • ordinance, for the year 1928, .1929, or 1930. However, in each of the years 1929 and 1930, by simple motion which was adopted and entered in the minutes, the city council provided that the tax levy for the year then current “be $1.50 on the one hundred dollars valuation, and that it be divided: 95 cents to Water and Sewer Bonds, 30 cents to Paving Bonds; 18 cents Funding Warrants, and 7 cents to General Fund.” In the year 1928, the city council adopted and entered in the minutes a simple motion of similar import as that just stated above, except that the tax of $1.50 was apportioned 95 cents to the water and sewer bonds, 30 cents to tbe paving bonds, and 25 cents to tbe general fund.

Tbe contention of tbe defendant in error is to tbe effect that, inasmncb as article 1026 of the statutes prescribes that a tax, as- there authorized, shall be levied “by ordinance,” that mode must be followed in order to make a valid levy. The contention has reference to all taxes sought to be recovered for tbe years 1928, 1929, and .1930, except tbe 30 cents levied for 1928 by the paving bonds ordinance, and the 18 cents levied for 1929 by the funding warrants ordinance.

As already shown, each of the three ordinances which have been mentioned provided, in effect, that each succeeding year a tax sufficient to pay, as same matured, the principal debt and accrued interest, be levied. With those respective ordinances passed, the determination, each succeeding year, of the tax rate necessary to satisfy the requirements prescribed in the respective ordinances, became a ministerial duty' of the city council. Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 S. W. 880; City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S. W. 818. There is no reason to say that, as occasion arose for the performance of this ministerial duty, the city council could not act except by ordinance. It occurs to us that, where a debt payable in' the future is created by ordinance, and the ordinance provides for the levy, each year, of a tax of sufficient amount to meet payment requirements as prescribed in the ordinance, the discretion involved in the passage of the ordinance satisfies the statute. The Legislature never intended to require that ministerial acts of the city council, which are necessary to carry the provisions of the ordinance into effect, be performed by ordinance. It was perfectly consistent with the terms of the statute for the city council in the present instance to determine and fix, by simple motion as it did, the tax rate that was necessary to meet the requirements of the respective ordinances mentioned.

However, a different situation prevails with regard to the several levies for current expenses (general fund), which were undertaken to be made by simple motion. As to those, the performance, by the city council, of a duty involving discretion in respects contemplated by the statute was involved; which duty was required by the statute to be performed by ordinance. The attempt, therefore, to levy such tax for current expenses, by means of a simple motion, was ineffectual. Earle v. City of Henrietta, 91 Tex. 301, 43 S. W. 15; American Construction Company v. Seelig, 104 Tex. 16, 133 S. W. 429; Town of Pleasanton v. Vance (Tex. Com. App.) 277 S. W. 89; People’s Nat. Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals be reversed, and that the cause be remanded, with instructions to the trial court to enter judgment for the city in accordance with this opinion.

CURETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, with instructions, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.