author: KLINGEMAN, Justice.

text:
    DUVAL COUNTY RANCH COMPANY and Clinton Manges, Appellant, v. STATE of Texas et al., Appellees.
    No. 16085.
    Court of Civil Appeals of Texas, San Antonio.
    July 11, 1979.
    Rehearing Denied Sept. 5, 1979.

      Jack L. Hart, Midland, for appellant.
    G. Rudolph Garza, Jr., Corpus Christi, for appellees.
   OPINION

KLINGEMAN, Justice.

This is a delinquent tax suit. The State of Texas, County of Duval, Duval County Vocational School District, and Duval County Conservation and Reclamation District, as plaintiffs, and Benavides Independent School District, and Freer Independent School District, as intervenors, sued Duval County Ranch Company and Clinton Mang-es, as defendants, for personal judgment for the amount of tax indebtedness alleged to be due and for foreclosure on all the property involved, including surface lands and mineral and royalty interests. Connecticut General Life Insurance Company and Bank of the Southwest, as lienholders, were made parties to the action by other pleadings. Duval County Ranch Company and Clinton Manges answered that the taxes sought to be collected were not legally listed, assessed, or levied, and that at the time of the suit Duval County Ranch Company did not own the minerals under the lands involved in the suit. Trial was to the court without a jury. The trial court held that Duval County Ranch Company was indebted for delinquent property taxes in the amount of $482,684.94, and that Clinton Manges was indebted for delinquent property taxes in the amount of $721,325.39. The trial court ordered a foreclosure of the tax lien on all the properties and a tax sale. The defendants have duly perfected their appeal. For the purpose of brevity three of the taxing agencies (the State of Texas, County of Duval, and Duval County Vocational School District) will at times hereinafter be referred to collectively as “Duval County.” Benavides Independent School District and Freer Independent School District will be referred to as “School District,” and Duval County Conservation and Reclamation District will be referred to as “Water District.” Clinton Manges will be referred to as “Manges,” and Duval County Ranch Company will be cited as “Ranch Company.”

The trial court made extensive findings of fact and conclusions of law. Such findings accurately set forth much of the pertinent factual background and may be summarized as follows:

(a)The delinquent tax rolls of Duval County were offered and identified by Amoldo Cuellar, County Tax Assessor-Collector, covering taxes collected by the Duval County taxing authorities. It was stipulated by all the parties that the delinquent tax rolls offered in evidence were properly authenticated and were the official delinquent tax records. Such tax records, the stipulation as to their authenticity, and various exhibits reflecting delinquent tax rolls for several years (commencing in 1971) were received in evidence, including the delinquent tax rolls with respect to the mineral interests;
(b) The Ranch Company introduced into evidence copies of the tax rolls and delinquent tax rolls, both as to the surface and oil and gas interests;
(c) The County Tax Assessor-Collector testified that delinquent taxes as shown upon the delinquent tax lists were unpaid;
(d) By agreement of the parties certified copies of the tax records of the Bena-vides Independent School District were received in evidence without requirement of further authentication, were identified by the school district’s tax assessor-collector and were stipulated to be the “official Delinquent Tax Record of Benavides School District” and official tax rolls reflecting delinquent taxes as to the property involved. The school district tax assessor-collector testified that except for a partial payment which was reflected in intervenor’s exhibits on taxes for the years 1973 and 1974, no other payments for taxes assessed against the property of the Ranch Company have been paid.
(e) The defendants introduced into evidence the purported minutes of the Commissioners Court of Duval County, which as offered and received do not reflect any action of the Commissioners Court regarding the levy of ad valorem taxes for the years 1971 through 1975. The minutes reflect that at a meeting on July 31, 1975, there was a motion that “a total rate of $2.20 be approved and adopted for the year 1976 [sic], . . . ” The minutes as introduced do not reflect any action of the Commissioners Court to levy ad valorem taxes in 1976. (Except to the extent that the exhibit speaks for itself, the trial court was unable to find as a fact that this exhibit reflects whether there were other meetings and/or actions by the Commissioners Court not shown by these minutes.) Neither party offered the testimony of any member of the Commissioners Court, County Clerk, or any other person with knowledge of the facts in connection with the listing, assessing and levying of the taxes in question.
(f) Minutes of a meeting of the Directors of the Water District for the period prior to July 10, 1972, had “disappeared.” The defendants introduced the subsequent minutes of meetings of the Water District. The minutes do not reflect any action of the Board of Directors as to the levy of ad valorem taxes for the years 1971, 1972, 1973 and 1974. A motion was made at a meeting on July 29, 1976, according to these minutes, to set the ad valorem tax rate for the Water District. (Except to the extent that this exhibit speaks for itself, and aside from the statutory presumption and prima fa-cie case created by introduction into evidence of the delinquent tax records, the trial court was unable to find as a fact whether the Directors of the Water District did or did not act during the years in question to levy the taxes.)
(g) There was testimony that all minutes of the meetings of the Board of Trustees of the Benavides Independent School District were “missing” for all times prior to January 7, 1974. Subsequent minutes of the school district were introduced by defendants. The minutes offered by defendant do not reflect any action to levy ad valorem taxes for the year 1974. There was a “motion” to levy ad valorem taxes for the year 1975 in the minutes dated August 14, 1975. No further evidence was offered by any party as to other minutes or to other action that may have been taken by the Board of Trustees of the school district in connection with the listing, assessing and levying taxes, except that the tax assessor-collector for the school district testified that tax rates were set for each year and in general testified as to action of the Board of Trustees levying taxes. (These exhibits were received with no assurance by any party that they constituted all of the minutes for the school district meetings for the period purported to be covered, and therefore, aside from the statutory presumption and prima facie case created by introduction into evidence of the delinquent tax records, the trial court was unable to find as a fact whether the Board of Trustees of the school district did or did not levy the taxes for the years in question.)
(h) Over objection, the intervenors introduced into evidence the budgets of the Benavides Independent School District as submitted to the Texas Education Agency [regarding] levies and tax rates. Some evidence as to a Board of Equalization hearing in 1975 was also offered.
(i) Secondary evidence tending to indicate tax levies by the plaintiffs for the several years were received over objection, namely, the stipulated testimony of the County Auditor, as to tax rates being set for the years in question and County budgets as filed with the State Comptroller, alluding to the several tax rates.
(j) The defendants offered into, evidence a tax certificate from the Bena-vides Independent School District reflecting payment of all taxes through the year 1974, but withdrew such exhibits after evidence was offered that such certificate was fraudulent; that the Ranch Company had paid less than twenty-five per cent of the taxes owing; and that a false tax certificate has been issued by Tax Assessor-Collector Rodolfo Couling on the orders of George Parr.

Other findings of fact made by the trial court are restated, as follows:

(1) The Delinquent Tax Rolls of Duval County received in evidence under a stipulation of all parties that they were the official Delinquent Tax Rolls for such County are sufficient to and do constitute the list of lands and lots and/or property on which taxes . . . are delinquent within the purview of Article 7336 Y.A. C.S. and Article 7326 V.A.C.S. Such Delinquent Tax Rolls also substantially comply with the requirements of Article 7321 V.A.C.S.
(2) Defendant [Duval County] Ranch [Company’s] Exhibits 9 through 12 were the Delinquent Tax Records submitted by Duval County to the State Comptroller in accordance with Article 7321 V.A.C.S.
(3) The Delinquent Tax Records of the Benavides Independent School District received in evidence under a stipulation of all parties that they were the official tax records of such School District are sufficient and do constitute the records constituting the prima facie evidence under Article 7336 V.A.C.S., 7326 V.A.C.S. (by virtue of Article 7343 V.A.C.S.).
(4) The Delinquent Tax Lists of the Duval County Conservation & Reclamation District received under the stipulation of the parties as to their authenticity, were sufficient to and did constitute the records constituting prima facie evidence under Article 7326 & 7336 V.A.C.S.
(5) Except for the partial payment of approximately $30,000.00 by the Duval County Ranch Co., Inc., on February 12, 1975, to the Benavides Independent School District in connection with the issuance of the false Tax Certificate and the credits reflected on the Delinquent Tax Lists of the Plaintiff, none of the taxes in question, penalty, or interest have been paid.
(6) The defensive evidence offered by Defendants was insufficient to prevail as against the presumptions and the prima facie provisions of Article 7326 and 7336 V.A.C.S.
(7) All the taxes in question were assessed against the Duval County Ranch Co., Inc.
(8) Clinton Manges was conveyed a severed interest in oil, gas and minerals by the Ranch Company February 1, 1974.

The trial court also made conclusions of law, which are set forth as follows:

(1) By virtue of Article 7336 V.A.C.S. the Delinquent Tax Lists of Duval County in evidence constituted prima facie evidence that all the requirements of law were complied with as to the regularity of listing, assessing and levying all taxes. By virtue of Article 7326 V.A.C.S. such Delinquent Tax Records constituted pri-ma facie evidence of the true and correct amount of taxes and costs due from the Defendant Ranch Company. Under Article 7321 V.A.C.S. there was also prima facie evidence that all requirements of law had been complied with by Plaintiffs. Accordingly, the Plaintiff Duval County and those taxing agencies for which it is the Tax Assessor-Collector are entitled to recover as against the Duval County Ranch Co. for an [sic] in the amounts shown by the Delinquent Tax Lists.
(2) Defendant Ranch Co., Inc. is bound by its Exhibits 9 through 12 which were the Delinquent Tax Records submitted to the State Comptroller in accordance with [Article] 7321 and Defendant’s own Exhibits constituted prima facie evidence that all of the requirements had been complied with in the regularity of listing, assessing and levying the taxes in question of the Plaintiffs.
(3) By virtue of Article 7336 V.A.C.S. the Delinquent Tax Lists of the Bena-vides Independent School District in evidence constituted prima facie evidence that all the requirements of law were complied with as to the regularity of listing, assessing and levying all taxes. By virtue of Article 7326 V.A.C.S. such Delinquent Tax Records constituted prima facie evidence of the true and correct amount of taxes and costs due from the Defendant Ranch Company. Under Article 7321 V.A.C.S. there was also prima facie evidence that all requirements of law had been complied with by Plaintiffs. Accordingly, the Plaintiff Benavides Independent School District and those taxing agencies for which it is the Tax Assessor-Collector are entitled to recover as against the Duval County Ranch Co. for and in the amounts shown by the Delinquent Tax Lists.
(4) By virtue of Article 7336 V.A.C.S. the Delinquent Tax Lists of the Duval County Conservation & Reclamation District in evidence constituted prima facie evidence that all the requirements of law were complied with as to the regularity of listing, assessing and levying all taxes. By virtue of Article 7326 V.A.C.S. such Delinquent Tax Records constituted pri-ma facie evidence of the true and correct amount of taxes and costs due from the Defendant Ranch Company. Under Article 7321 V.A.C.S. there was also prima facie evidence that all requirements of law had been complied with by Plaintiffs. Accordingly, the Plaintiff Duval County Conservation & Reclamation District and those taxing agencies for which it is the Tax Assessor-Collector are entitled to recover as against the Duval County Ranch Co. for and in the amounts shown by the Delinquent Tax Lists.
(5) Defendant Clinton Manges took conveyance of the mineral interest with the taxes delinquent thereon February 1, 1974. Plaintiffs and Intervenor are entitled to recover as against Clinton Manges with an Order of Sale as to the delinquent taxes shown upon their Delinquent Tax Lists on the oil and gas in place.
(6) The Plaintiffs and Intervenor are entitled to judgment and relief as set out in the Judgment heretofore signed by the Court.

Defendants assert twenty-eight points of error in which they complain that (1) the trial court erroneously held that the defensive evidence was insufficient to prevail as against the presumptions and prima facie provisions of Articles 7326 and 7336, Texas Revised Civil Statutes; (2) the evidence supporting the trial court’s findings as to the regularity of listing, assessing and levying was either legally or factually insufficient; (3) there was double assessment and taxation of the subject mineral interest; (4) the trial court erred in decreeing a foreclosure of a lien against the real estate and mineral properties involved in bulk, or in groups of more than one tract, because such a foreclosure is contrary to law; and (5) the trial court incorrectly held that the lien-holders, Connecticut General Life Insurance Company and Bank of the Southwest, were duly served with process, and in holding that a lien exists against the real estate and mineral interests involved superior to all other liens, charges and encumbrances of any character.

Statutory Presumptions

The procedural posture of the taxpayer who challenges a property taxation scheme is vital in determining what he must do in order to prevail. Typically, he only has three alternatives. First, he may bring an action to enjoin the collection of taxes before the taxing jurisdiction has formally approved the tax rolls and begun the actual process of collecting taxes. Second, he may seek an injunction after the tax rolls have been approved and the collection process has begun. Third, he may allow a taxing scheme to go into effect and then challenge the assessment as a defense to a suit brought by the taxing unit for delinquent taxes. Here, the taxpayers chose the third alternative and as a result assumed a much more onerous burden. Defenses in a suit brought by taxing agencies for delinquent taxes are limited. One taxing authority has stated that if a taxpayer delays his challenge until the board of equalization has approved the tax roll and the process of •tax collecting has begun, his challenge has only a slim chance of success. In a delinquent tax suit the taxpayer labors under a heavy burden of proof due to failure to litigate his objections sooner. See Yudof, The Property Tax in Texas Under State and Federal Law, 51 Texas L.Rev. 885 (1973).

Under the record before us, defendants at no time prior to the filing of this suit ever made any official objection to the listing, assessing and levying of any of the taxes here involved, nor did they bring any action seeking to stop or enjoin any of such tax proceedings. Instead, they made no challenge until each of the plaintiff taxing authorities sought by judicial proceedings to collect the taxes which had been assessed by each respective authority and which remained unpaid.

Numerous statutes provide that the taxing jurisdiction can establish a prima facie case for the tax claim by the introduction of its official tax record. By introducing into" evidence delinquent tax rolls, the taxing entity makes out a prima facie case and is entitled to judgment in the absence of any proven defense in opposition thereto. In Stratton v. Del Valle Independent School District, 547 S.W.2d 727 (Tex.Civ.App.—Austin 1977, no writ), the Court stated that “[b]y the admission of the certified copy of appellee’s delinquent tax record, a presumption was raised that there was a valid levy and assessment of the taxes in issue made by a legally constituted taxing authority and that all conditions precedent to such assessment and levy had been performed.” See Newton v. Highland Park Independent School District, 361 S.W.2d 916 (Tex.Civ.App.—Austin 1962, no writ); Whaley v. Nocona Independent School District, 339 S.W.2d 265 (Tex.Civ.App.—Fort Worth 1960, writ ref’d).

In Keystone Operating Co. v. Runge Independent School District, 558 S.W.2d 82 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.), this Court was confronted with a situation wherein the taxing agencies introduced into evidence the pertinent delinquent tax records and evidence to the effect that such taxes had not been paid. Under the provisions of Article 7326, we held that

the introduction of such evidence constitutes ‘prima facie evidence of the true and correct amount of taxes and costs due by’ defendant. At the very least, the statutory provisions assigning prima facie value to the official tax records has the effect of casting upon the taxpayer the burden of producing evidence of the existence of recognized grounds for avoiding the tax. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572 (1954). The language of the cases indicates that the statutory provision goes further and places on the taxpayer the burden of persuading the trier of fact that the assessment is invalid.

See also Kirkman v. City of Amarillo, 508 S.W.2d 933 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Campbell v. City of Houston, 464 S.W.2d 372 (Tex.Civ.App.— Houston [14th Dist.] 1971, no writ); Stone v. City of Dallas, 244 S.W.2d 937 (Tex.Civ.App.—Waco 1951, writ dism’d); Adams v. Royse City, 61 S.W.2d 853 (Tex.Civ.App.— Dallas 1933, writ ref’d); 21 J. Howell, Property Taxes §§ 391 — 411 (Texas Practice 1975). The truth and weight of the evidence offered by a defendant tending to meet and overcome the prima facie evidence offered by a taxing agency are questions to be resolved by the trier of fact.

A question presented in this appeal is whether the mere introduction into evidence of the taxing agency’s silent minutes is sufficient positive evidence as a matter of law to rebut the statutory presumption in favor of a valid tax listing, assessment and levy. Defendants contend that the introduction of these minutes conclusively rebutted the prima facie proof and presumptions of Articles 7326 and 7336. We disagree.

It has previously been held that where an order of the Commissioners Court was never duly recorded in the minutes of the Court, one may prove by parol evidence that such order was in fact duly made and passed by said Court, over the objection of the opposing taxpayer that such an order can be shown only by the minutes thereof and that proof thereof cannot be made by parol. Mecom v. Ford, 113 Tex. 109, 252 S.W. 491 (1923).

This Court in Keystone Operating Co. v. Runge Independent School District, 558 S.W.2d 82 (Tex.Civ.App. —San Antonio 1977, writ ref’d n. r. e.), after thoroughly discussing the prima facie case established by the introduction of the taxing agency’s delinquent tax rolls, stated that the burden of persuading the trier of the fact that the assessment is invalid is placed on the challenging taxpayer. “Prima facie evidence” is evidence upon which a finding may rest. Article 7326 permits an inference to be drawn from the existence of certain facts, and this inference may be drawn even though evidence indicating the non-existence of the inferred fact has been introduced.

Defensively, neither Manges nor the Ranch Company offered any testimony or explanation with respect to their non-payment of the taxes sought. We have concluded that the mere introduction of the silent minutes was not sufficient positive evidence to rebut the statutory presumptions created by Articles 7326 and 7336. Moreover, there was other evidence introduced before the trial court as to the regularity of the tax proceedings in question.

Waiver and Estoppel

The evidence shows that on at least three occasions the Ranch Company made partial payment of taxes on the properties involved. Plaintiff asserts that by such partial payment defendants either waived any irregularities in the listing, assessing and levying of taxes, or that defendants are now estopped from attacking such listing, assessing and levying. Plaintiffs urge that a voluntary and unconditional tender of payment by defendant dispenses with the need for proof of facts that would otherwise be necessary in order for plaintiffs to recover upon their cause of action and that having made a tender of a part of the amount sued for, the defendant taxpayer is precluded from now denying the legality of all of it. See Murchison v. Post Independent School District, 258 S.W.2d 229 (Tex.Civ.App.—Amarillo 1953, writ ref’d n. r. e.); Doneghy v. State, 240 S.W.2d 331 (Tex.Civ. App.—Amarillo 1951, no writ); Bell v. Turkey Independent School District, 214 S.W.2d 834 (Tex.Civ.App.—Amarillo 1948, writ ref’d n. r. e.); State Fair of Texas v. Seay, 98 S.W.2d 232 (Tex.Civ.App.—Fort Worth 1936, writ dism’d); City of Rising Star v. Dill, 259 S.W. 652 (Tex.Civ.App.— Fort Worth 1923) aff’d, 269 S.W. 769 (Tex. 1925). These cases stand for the general proposition that by tendering part of the taxes claimed the taxpayer admits the justness of the tax to the extent of the amount tendered and is estopped from disputing his liability to that extent. There is language in some of these decisions indicating that, since the same proceedings produced the amount of taxes tendered as partial payment by the taxpayer as well as the amount denied to be owing by him, this is tantamount to a waiver and estoppel as to all the taxes listed, assessed and levied in such proceeding. While we do not regard these cases alone as determinative of the case before us, these authorities provide an additional ground for upholding the judgment as to those portions of the delinquent taxes involved, and, particularly so, in view of the fact that the payments or tenders were unconditional and without limitation.

Assessment of Mineral Interests

Defendants contend that in some instances there was double assessment of minerals for tax purposes; that Manges was not the owner of the minerals for some of the years in which the mineral taxes were adjudged against him; and that the Ranch Company did not own the minerals at the time the tax suits were instituted.

Under the record, we do not find any such double assessments on the subject mineral interests. It is a common practice when there has been a severance of the minerals, particularly where production is involved, to have separate tax assessments of the mineral estate and the surface estate. It is a well-recognized principle of law that after the mineral estate has been severed by the owner from the land, the same is assessed for taxes and the owner of the mineral estate is liable for taxes to the same extent that property owners are liable for any other tax. See Humble Oil & Refining Co. v. State, 3 S.W.2d 559 (Tex.Civ.App.—Waco 1927, writ ref’d). It is undisputed that for the tax years 1971, 1972, 1973 and 1974, the Ranch Company was assessed as the owner of the surface lands involved and was at the same time assessed separately as to the oil, gas and mineral interest. There was a severance as to a portion of the minerals in 1965 as shown by a deed from the Ranch Company to Humble Oil & Refining Company, wherein Humble was conveyed a 30.93 per cent interest in certain minerals. An examination of the oil properties involved, as shown in the delinquent tax records, indicates percentage ownerships in the oil and gas properties, with each mineral interest being designated in percentage points. The records show that the Ranch Company was assessed a percentage ownership interest either as to royalty interest or as to other mineral interests. This is a proper method of assessment. There is no evidence that defendants ever questioned the separate valuation of the mineral interests or complained of any double taxation in advance of the original tax levy in the present action. There was an additional severance in 1974 when Clinton Manges was conveyed certain mineral interests by the Ranch Company. The trial court assessed taxes against Manges for the mineral interests involved for the years 1971 through 1976. Manges did not own these mineral interests until 1974 when he received a conveyance of such mineral interests from the Ranch Company. The trial court found that Manges assumed the taxes. Apparently on this basis, and on the additional fact that there were delinquent mineral taxes on such property at the time of such conveyance, the trial court rendered judgment against Manges for all of the years involved. The record contains a copy of the deed which provides only that Mang-es assumed the taxes for 1974 on the properties therein conveyed.

The taxes on the mineral interests for the years involved remain unpaid. They are either the responsibility of Clinton Manges or the Ranch Company, or both. Under the circumstances, we have concluded that the portion of the judgment awarding plaintiffs and intervenors the sum of $721,325.39, assessed solely against Manges, should be reformed to provide that the judgment as to such amount is assessed against Clinton Manges and Duval County Ranch Company, Inc., jointly.

Bulk Assessment

Defendants also complain that the trial court erred in decreeing a foreclosure of the tax lien against the real estate and mineral property in bulk, or in groups of more than one tract, because such a foreclosure is contrary to law.

The property here involved is comprised of approximately 75,000 acres of land, which has been owned in fee by the Ranch Company for many years and was so owned in 1971, the first year for which delinquent taxes were sought in the present tax suits.

Three tracts of property are involved in these suits. Tract One contains some 72 parcels totaling 49,715.97 acres; Tract Two contains some 40 parcels totaling 25,710.25 acres; and there are also some 172 separate oil and gas interests. Effective on February 1, 1974, the Ranch Company conveyed to Clinton Manges all of the oil, gas and mineral rights it owned in and under the ranch.

Judicial foreclosure of tax liens on real property is provided for in Article 7326. This statute sets forth in detail the provisions as to such foreclosure proceedings. It has been held that the lien provided for by Article VIII, Section 15, of the Texas Constitution (and the declaratory statute enacted pursuant thereto) attaches only to each separate tract of land for the taxes assessed against it. Richey v. Moor, 112 Tex. 493, 249 S.W. 172 (1923). If, however, the owner uses several tracts of land together or if he renders several tracts of land together, an in solido (or bulk) assessment is valid and the lien securing the tax extends over the entire parcel. See Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); 21 J. Howell, Property Taxes § 480 (Texas Practice 1975). If the consolidation of the tracts here involved constituted an erroneous assessment, that assessment was in effect validated by Article 7351, which has been held to validate an assessment wherein the assessor failed to give a separate value on each lot, block or tract of land, or stated in other terms, where the assessor made a “bulk assessment.” Stratton v. Del Valle Independent School District, 547 S.W.2d 727 (Tex.Civ.App.—Austin 1977, no writ). Defendants’ points of error complaining of the bulk assessment are overruled.

Lienholders

By a number of points of error defendants complain that the trial court erred in holding that the lienholders were served with process and were properly before the court, and that the plaintiffs’ and intervenors’ tax liens were superior to all other liens, charges or encumbrances. It must be remembered that none of the lien-holders perfected an appeal. Defendants in their brief acknowledge that both defendants were at one time served with process; that Connecticut General Life Insurance Company filed an original answer and that Bank of the Southwest also filed an original answer. The judgment recites that such lienholders were duly served with process and answered herein, but failed to appear on their behalf. In view of these findings, and the additional fact that neither of such lienholders has perfected an appeal, we do not deem it necessary to further discuss defendants’ contentions in this regard. All of defendants’ points of error pertaining to such lienholders are overruled.

We have concluded that (1) the trial court correctly held that the defenses and evidence offered by the defendants was insufficient to prevail as against the presumption and provisions of Articles 7326 and 7336; (2) there was legally and factually sufficient evidence to support the trial court’s findings as to the regularity of the listing, assessing and levying of taxes as to all taxing authorities involved; (3) the trial court correctly decreed a foreclosure against the real estate and mineral properties; and (4) the trial court correctly held that the lienholders were properly served with process and that the plaintiffs’ and intervenors’ tax liens were superior to all other liens, charges or encumbrances of any character. We have also concluded that the taxes for the mineral interests adjudged against Manges should be assessed jointly against Manges and Duval County Ranch Company, Inc.

All of defendants’ points of error not herein specifically discussed have been considered, and all are overruled.

The judgment is reformed to provide that the portion of the judgment adjudging taxes against Clinton Manges in the sum of $721,325.39, which covers mineral taxes on the properties here involved, is changed so as to provide that such taxes are assessed jointly against Clinton Manges and Duval County Ranch Company, Inc. As reformed, the judgment is affirmed.

      . The appeal before us is from a trial consolidation of four separate actions against defendants for delinquent taxes.

      . During the years for which the delinquent taxes are sought, portions of the Benavides Independent School District were to an extent taken over by, or included within the bounds of, the Freer Independent School District.

      . The Duval County Ranch Company, a Texas corporation, consists of approximately 75,000 acres of land in Duval and Webb Counties, owned in fee. In February, 1974, the Duval County Ranch Company gave a deed to the mineral interest to Clinton Manges.

      . There is evidence in the record that some officials of the Ranch Company were on some of the boards of the various tax authorities involved in this case; Rodolfo Couling, a former tax assessor-collector for the Benavides Independent School District, testified in some detail regarding questionable procedures in his office.

      . Article 7329 [Defense to tax suits] provides:
      There shall be no defense to a suit for collection of delinquent taxes, as provided for in this chapter except:
      1.That the defendant was not the owner of the land at the time the suit was filed.
      2. That the taxes sued for have been paid, or
      3. That the taxes sued for are in excess of the limit allowed by law, but this defense shall apply only to such excess.
      Tex.Rev.Civ.Stat.Ann. art. 7329 (Vernon 1960).

      . If the defendant shall, at any time before the sale, file with the officer in whose hands the order of sale shall be placed, a written request that the property be divided and sold in smaller tracts than the whole, together with a description of such smaller tracts, the request shall be granted and the officer shall sell only as many subdivisions as are necessary to satisfy the amount due. 21 X Howell, Property Taxes § 493 (Texas Practice 1975).


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Frances Vaughan ADAMSON, Appellant, v. William “Bill” DOORNBOS and Richard E. Doornbos, Trustees of the C. Doornbos Trusts, Appellees.
    No. 8323.
    Court of Civil Appeals of Texas, Beaumont.
    July 12, 1979.
    Rehearing Denied Aug. 16, 1979.

      Tom Moore Featherston, Port Arthur, for appellant.
    David E. Bernsen, George A. Weller, Beaumont, for appellees.
   KEITH, Justice.

Plaintiff below appeals from a judgment granted in the bench trial of a trespass to try title suit to recover an undivided one-half interest in certain lots in Jefferson County, Texas. The court rendered judgment granting plaintiff an undivided one-half interest in and to nine and one-half lots and denied her recovery as to thirteen lots. This appeal involves these thirteen lots only.

At trial plaintiff contended that her title to the thirteen lots in question and defendants’ title emanated from a common source. First, she introduced into evidence her alleged chain of title. Edward Randall, et al., conveyed by quitclaim deed dated May 20, 1938, to W. A. Vaughan, his interest in several lots in Sabine Pass, including the lots in question. W. A. Vaughan died leaving a will in which he left all his property to his wife, Laura Alma Vaughan, who deeded by warranty deed a one-half interest in the property to her son, Harry Allan Vaughan. Harry died leaving a will in which he left all his property to his mother. Then, Laura Vaughan died leaving a will in which she left all her property to her daughter, plaintiff.

Plaintiff, then, contended that defendants’ chain of title emanated from her parents. W. A. and Laura A. Vaughan conveyed a one-half undivided interest in the lots in question by quitclaim deed dated June 29, 1938, to Louis and Fannie Welch. The Welches, in turn, conveyed their one-half interest on October 24, 1952, by quitclaim deed to C. Doornbos.

Defendants offered a different chain of title for their interest in the property. Testimony at trial was that several lots in Sabine Pass, including the lots in question, were fenced in 1936 by defendants to graze their cattle. In 1939, C. Doornbos leased the property from four groups of people with different undivided interests in the property and he or his successors continued to lease it or parts of it until he or defendants eventually bought the property. By deed dated October 31, 1953, C. Doornbos bought a one-eighth undivided interest from B. Cecil Moore, et al. He bought another one-eighth undivided interest from Emma Violette Joesting by deed dated October 28, 1953. Then, Benett Easterling, et al., conveyed to defendants what was probably a one-half undivided interest by quitclaim deed dated November 19, 1971. Finally, the First Church of Christ, Scientist, in Boston, Massachusetts, et al., conveyed a one-fourth undivided interest to defendants by deed dated December 23, 1975, and a correction deed dated June 2, 1976. From November 1972 through May 1977, defendants leased the property to various tenants.

The trial court found, inter alia, that (1) plaintiff failed to prove superior title to the thirteen lots in question; (2) plaintiff failed to prove that plaintiff and defendants were claiming under a common source; (3) defendants proved that they or those through whom they claim were in possession of the land and used the land more than ten years prior to the date of any alleged title emanating from any alleged common source in defendants; (4) plaintiff was never in possession of the property during that time period; and (5) defendants and those under whom they claim acquired title to the lots under the ten-year statute of limitation as they were in continuous exclusive adverse possession for thirty-eight years.

Plaintiff appeals contending that the trial court erred in holding (1) that plaintiff did not have superior title to the subject property from the common source and (2) that defendants acquired title to the subject property under the ten-year statute of limitations. We disagree.

In a trespass to try title suit the plaintiff has the burden of proving that he has title to land by one of four methods: (1) record title from the sovereignty of the soil down to himself; (2) title from a common source, /. e., a source from which the defendant also claims title; (3) title by limitation; or (4) a presumptive title arising from possession of the property at a time antedating the defendant’s possession. Land v. Turner, 377 S.W.2d 181, 183 (Tex.1964); Walters v. Pete, 546 S.W.2d 871, 875 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.); 56 Tex.Jur.2d, Trespass to Try Title § 7, at 67-68 (1964).

Our plaintiff sought to prove that she had superior title from a common source. To prove a prima facie case of common source, plaintiff must connect her title by a complete chain of title with the title of the common source, connect defendants’ title by complete chain of title to the same source, and prove that plaintiff’s title is superior to the one defendants derived from the common source. Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923, 924 (1962); Best Inv. Co. v. Hernandez, 479 S.W.2d 759, 762 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.). She must recover on the strength of her own title and not the weakness of her adversaries’ title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961); Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, 853 (1950); Gillum v. Temple, 546 S.W.2d 361, 363 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

The originating deed in plaintiff’s chain of title is a quitclaim deed as are all four deeds in defendants’ so-called common-source chain of title. The law is established that a quitclaim deed is not a conveyance or muniment of title. The court in McMahon v. Fender, 350 S.W.2d 239, 240 (Tex.Civ.App.—Waco 1961, writ ref’d n. r. e.), so held:

“A quitclaim deed does not of itself establish any title in those holding under it. The quitclaim passes the interest of the grantor in the property, and for the quitclaim to be a conveyance, title in the grantor must be shown. See: 41A Tex. Jur., p. 551, par. 34; Watkins v. Smith, 91 Tex. 589, 45 S.W. 560; Richardson v. Levi, 67 Tex. 359, 3 S.W. 444; Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67; 19 Tex.Jur.2d par. 11, p. 256.”

Plaintiff failed to prove title in W. A. Vaughan, the so-called common source of title for plaintiff and defendants. Therefore, plaintiff failed to establish a superior title in herself. Defendants, on the other hand, proved that they or their predecessor in interest acquired good title from their grantors, who acquired title by adverse possession. Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420, 422 (1960); H. L. Brown & Assocs. v. McMahon, 525 S.W.2d 553, 557 (Tex.Civ.App.—Tyler 1975, no writ); Winchester v. Porretto, 432 S.W.2d 170, 175 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.); Tex.Rev.Civ.Stat.Ann. art. 5510 (1958).

Finding plaintiff failed in her proof, the judgment of the trial court is affirmed.

AFFIRMED.

DIES, J., not participating.

      . The trial court also denied her recovery of four lots in which plaintiff disclaimed any interest at trial, and therefore the title to these lots is not a part of this appeal.

      . The annual rental was divided as follows:
      one-eighth - Julia C. Moore, et al.
      one-eighth - Violette C. Joesting
      one-fourth - Daisy M. Roche, who later deeded her interest to First Church of Christ, Scientist, in Boston, Massachusetts
      one-half - E. E. Easterling, et al.


author: HUMPHREYS, Justice.

text:
    Glen A. HINCKLEY, Trustee, Appellant, v. James A. EGGERS et al., Appellees.
    No. 19740.
    Court of Civil Appeals of Texas, Dallas.
    July 20, 1979.
    Rehearing Denied Sept. 5, 1979.

      W. Mike Baggett, Wmstead, McGuire, Se-chrest & Trimble, Dallas, for appellant.
    William D. Sims, Jr., Jenkens & Gilchrest, Dallas, for appellees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellant, plaintiff below, appeals from a summary judgment denying appellees’ liability on a deed of trust note which does not name any appellee and which none of the appellees has signed. We reverse on the ground that parol evidence is admissible to show that appellees are liable as principals because the note is not negotiable in view of its provision that the amount payable should be credited with payments made on a prior note.

Appellant sued James A. Eggers and eighteen other investors, who had signed a joint venture agreement calling themselves The Frisco Joint Venture, to enforce the obligations contained in a deed of trust and a deed of trust note, both of the same date, and each signed “Sam Wright, Trustee.” Wright’s liability is not disputed and is no part of this appeal, since his case was severed and judgment entered against him. Appellant’s petition alleged that the deed of trust and the deed of trust note were delivered to appellant, who at all times has been the owner and holder thereof. He alleged that even though the deed of trust and the deed of trust note fail to name any of the appellees or to bear the signature of any of them, nevertheless, Wright acted on his own behalf and on behalf of all appellees with “actual, apparent or implied authority” to bind each. He also pled ratification by appellees of his execution of the deed of trust note. The breach of obligation in the deed of trust and the deed of trust note is undisputed.

Appellees’ motion for summary judgment states one ground:

The specific ground upon which this Motion is based is that the Defendant Investors did not execute the Note (attached as Exhibit “A” to Plaintiff’s Petition which is the subject of this suit) nor are Defendant Investors named in the Note. The Note was merely signed “Sam Wright, Trustee”. Whether or not Defendant Sam Wright is liable on the Note, it is the universal rule that, as a matter of law, the Defendant Investors are not liable, and cannot be liable, on the Note because they neither signed the Note, nor do their names appear on the Note, nor does the signature of Sam Wright state that he executed the Note on behalf of any or all the Defendant Investors. Furthermore, parol evidence, as a matter of law, is inadmissible to vary the signature appearing on the Note.

This was the only ground for the summary judgment, and the only issue argued in the briefs in support of the summary judgment, and in the briefs on this appeal. Consequently, the sole issue is whether pa-rol evidence is admissible to show the principal's liability, if any, when the note is signed by an agent who does not name a principal but does show representative capacity. Appellant contends the court erred in granting summary judgment because as a matter of law, the note is non-negotiable and consequently parol evidence is admissible to show that appellees are individually liable under the terms of the note and deed of trust.

The test of negotiability is prescribed by Tex.Bus. & Comm.Code Ann. § 3.104(a)(2) (Tex. UCC) (Vernon 1968) which provides that the instrument must “contain an unconditional promise or order to pay a sum certain in money.” Appellant argues that the note in question is not negotiable because it is not an unconditional promise in that it is to be paid only out of a particular fund. In this connection, appellant cites section 3.105(b)(2), which provides that a promise is not unconditional if it “states that it is to be paid out of a particular fund or source,” with certain exceptions not applicable here.

We agree that the note does not contain an unconditional promise to pay the principal sum. It provides:

Except as stated herein and in the Deed of Trust, there shall be no personal or corporate liability hereunder or under the Deed of Trust and nothing contained herein or in the Deed of Trust shall obligate Maker, or its successors or assigns, or the grantor of the Deed of Trust, or its successors or assigns, further than to bind its right, title and interest in the property covered by the Deed of Trust, and in the event of a default hereunder or under the Deed of Trust, the sole remedy of the legal holder hereof or Payee and of the Trustee or the beneficiary under the Deed of Trust, shall be foreclosure of the property covered by the Deed of Trust, and neither Payee nor the legal holder hereof and neither the beneficiary nor the Trustee of the Deed of Trust shall be entitled to a personal or deficiency judgment, and none shall be sought or entered; provided, however, in the event Maker fails to perform any of the terms and conditions hereof or of the Deed of Trust and Payee or any subsequent holder hereof has the right to accelerate the indebtedness represented hereby or to foreclose the lien of the Deed of Trust, nothing herein shall be deemed to relive [sic] Maker from Maker’s personal liability and responsibility to pay to Payee or the subsequent holder hereof on demand that dollar amount equal to all taxes which are or shall become due and payable on the property covered by the Deed of Trust for the then current year plus all interest which has accrued hereon pursuant to the terms hereof but remains unpaid as of the date of such acceleration or foreclosure, whichever last occurs. [Emphasis added.]

These provisions have the effect of making the note payable out of a particular fund or source, namely, the proceeds of a sale of the property covered by the deed of trust. That is the only fund to which the holder may look for payment, although, of course, the maker may pay with any funds available. It would be contradictory to characterize as unconditional a promise that can be completely enforced only if a sale of the collateral produces sufficient funds. Under the clear provisions of the Code, such a note is not negotiable.

We recognize that the note provides personal liability for an amount equal to the taxes due on the property and the interest accrued on the note at the time of acceleration or foreclosure, and that the present suit is brought to enforce the personal liability. This provision does not establish negotiability. In the first place, this amount is not a “sum certain” within section 3.104(a)(2) because the amount of the taxes can be determined only from sources outside the instrument. Second, even if we disregard the taxes, we find no authority supporting the view that a note may be negotiable with respect to the interest when it is not negotiable with respect to the principal. We interpret the phrase “a sum certain in money” in section 3.104(a)(2) to mean the principal sum, which, of course, may be payable “with stated interest,” under section 3.106(a)(1). Consequently, we hold that a note is not negotiable if it provides that the maker has no personal liability for the principal sum and that the holder’s only remedy on default is foreclosure on the collateral, even though the note also contains an unconditional promise to pay a determinable amount of interest.

Having determined the note to be non-negotiable, and as Wright’s agency was alleged, we further hold that parol evidence is admissible here to show the principal’s liability on this non-negotiable instrument signed only by the agent. Diacomis v. Wright, 34 S.W.2d 806 (Tex.Comm’n App. 1931, holding approved); Steinberger Petroleum Corp. v. Whitley, 105 S.W.2d 727 (Tex.Civ.App.—Beaumont 1937, writ dism’d). While Wright’s authority to bind appellees personally must be established before appellant can recover from appellees, on this appeal we hold only that the trial court erred in rendering summary judgment on the sole ground stated in the motion, that appellees as a matter of law were not liable because they neither signed nor were named in the note. We do not pass on whether the joint venture agreement precludes appellant from recovery against ap-pellees individually nor do we pass on other theories not presented by the motion.

Appellee’s motion for rehearing is granted to the extent that our former opinion is withdrawn and the foregoing opinion is substituted. Otherwise, appellees’ motion is overruled, the summary judgment is reversed, and the cause is remanded for trial.

On Second Motion for Rehearing

Appellee has filed second motion for rehearing, contending that § 3.105(a)(8) is the exception which prevents this note from being unconditional because the instrument “is limited to payment out of the entire assets of a partnership, unincorporated association, trust or estate by or on behalf of which the instrument is issued.” He argues the property securing payment of this note is the entire asset of the trust property, and therefore, the terms of the note are unconditional.

We disagree. We read Section 3.105(a)(8) to mean that a note may be negotiable even though payment is limited to the assets of a particular partnership or trust estate if the entire assets of the partnership or trust estate, both presently owned and subsequently acquired, are subject to execution for its payment. This view is supported by the authorities cited by appellee. Kitzer v. Kitzer, 20 Ill.App.3d 54, 312 N.E.2d 699 (1974); Charles Nelson Co. v. Morton, 106 Cal.App. 144, 288 P. 845, 850-851 (1930).

Under this interpretation, the note in question does not qualify for several reasons. First, even if the evidence should establish that the property described in the deed of trust is now the only asset of the venture, or was at the time the note was signed, no property subsequently acquired by the venture, whether by sale of this property or otherwise, could be subjected to payment of the debt, according to the terms of the note. The joint venturers are entirely free to amend their agreement and acquire other property without subjecting it to execution, whether or not the property described is sufficient to satisfy the debt.

Second, the note does not show on its face that the property described in the deed of trust is the only property owned by the venture. That fact could only be established by extrinsic proof, which would not affect negotiability, since the unconditional character of the obligation must be determined from the terms of the note itself. See Tex.Bus. & Comm.Code Ann. § 3.105 (Tex. UCC), Purposes of Changes, (Vernon 1968). See generally Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928, 931 (1948).

Appellee’s second motion for rehearing is overruled.


author: STOREY, Justice.

text:
    Joette Smotherman GILLISPIE and the State National Bank of Denison, Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Bobbie Lee Jezek, Appellees.
    No. 19851.
    Court of Civil Appeals of Texas, Dallas.
    July 26, 1979.
    Rehearing Denied Aug. 29, 1979.
    Michael Thompson, Jarvis, Thompson, Grisham, Sanders, Smyre, Hagood, Emerson & Fry, Denison, for appellants.
    Mark R. Bamburg, Weisberg, Shirley, Bamburg & Weisberg, Denison, for appel-lees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

Joette Smotherman Gillispie for herself and for her minor daughter, sued the Prudential Insurance Company of America to recover the proceeds of a veteran’s group life insurance policy insuring the life of her deceased husband, James M. Gillispie. Prudential joined Bobbie Lee Jezek, the mother of the deceased and the State National Bank of Denison, Trustee of the James M. Gillispie Family Trust as parties to the suit. Prudential was discharged after payment of the policy proceeds into the registry of the court. This appeal is brought by the wife and the trustee bank urging reversal of the trial court’s judgment which awarded the policy proceeds to the deceased’s mother.

The primary questions presented by the appeal is whether decedent made an effective designation of the bank as beneficiary under 38 U.S.C.A. section 770(a) (Supp.1979) of the Servicemen’s Group Life Insurance Act (the Act). Section 770(a) provides:

Any amount of insurance under this sub-chapter in force on any member or former member on the date of his death shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date of his death, in the following order of precedence: First, to the beneficiary or beneficiaries as the member or former member may have designated by a writing received prior to death (1) in the uniformed services if insured under Servicemen’s Group Life Insurance, or (2) in the administrative office established under section 766(b) of this title if separated or released from service, or if assigned to the Retired Reserve, and insured under Servicemen’s Group Life Insurance, or if insured under Veterans’ Group Life Insurance; Second, if there be no such beneficiary, to the widow or widower of such member or former member; . . . . [emphasis added].

All parties agree that the decedent signed a written designation of the bank as beneficiary but that this designation was not received in the administrative office prior to death. Appellants contend that the Act should be liberally construed to give effect to the intent of the insured; while appellee contends that this construction would defeat the legislative intent. Despite the obvious intent of the insured to the contrary, as revealed by the record in this case, and the apparent inequity resulting, we conclude that the Act must be construed as written, and therefore affirm.

The record reflects that on August 1, 1975, James M. Gillispie executed an application form for Veteran’s Group Life Insurance in the amount of $20,000 naming his mother, Mrs. Vernon Jezek, as the primary beneficiary. On November 21, 1975, he married Joette Smotherman Gillispie. At or near the date of his marriage, Gillispie became aware that he was suffering from terminal cancer; and in late 1975, or early January 1976, he learned that his wife was pregnant. About this time also, Gillispie employed counsel to assist in the planning of his estate. On January 27, 1976, he executed the family trust, his will, and a document designed to revoke all previous beneficiary designations to the policy here in question and to appoint the trustee bank as beneficiary.

The trust agreement is an insurance trust designating the wife and children as beneficiaries with specific reference to the unborn child. It contains a “pour-over” provision to receive the residue of the decedent’s estate as contingent beneficiary in the event of the prior death of his wife who was named sole beneficiary in the will. These documents, the will, trust and beneficiary revocation-designation were left with the decedent’s attorney. On February 24, the Bank acknowledged acceptance of the trust and the decedent died on February 26. The beneficiary designation was received by the administrative office on March 1, 1976.

Appellants argue that the statute should be construed liberally so that a change of beneficiary could be established upon proof of two conditions: First, that the insured intended to change the beneficiary; and second that he performed some overt act directed toward accomplishing that end. This policy of liberal construction found favor in the federal courts’ construction of section 770(a) prior to the 1967 amendment of the Federal Employees’ Group Life Insurance Act, 5 U.S.C.A. section 8705(a) (1967); Behrens v. United States, 299 F.2d 622 (9th Cir. 1962); Aguilar v. United States, 226 F.2d 414 (9th Cir. 1955). Texas courts have followed a similar construction of change-of-beneficiary provisions in insurance contracts by applying the “substantial compliance” rule. See Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520 (1952).

After 1967, a transition occurred in the construction of the Act by the federal courts. The reason for this transition is discussed at length in Stribling v. U. S., 419 F.2d 1350 (8th Cir. 1969). Upon facts identical to those before us, the court concluded that the Congress had mandated a strict construction of section 770(a) and held that a designation in writing received prior to death in the administrative office was essential to effect a change of beneficiary. The court reached its conclusion by analogizing the Act here in question with the Federal Employees’ Group Life Insurance Act which had been amended in 1967 to contain essentially the same provisions regarding beneficiary designation. Before that amendment, the latter Act had been interpreted by the courts under the liberal policy here urged by appellants. The court in Stribling referred to the legislative history of the 1967 amendment. This history revealed the express purpose of the amendment was to correct the courts’ erroneous interpretation and to clarify Congress’ intent that the Act should be strictly construed to require receipt of beneficiary designations prior to death. According to the Senate report, this was necessary in order to avoid “administrative difficulties for the Civil Service Commission and the insurance companies and, more important, seriously delay paying insurance benefits to the survivors of federal employees.” S.Rep.No. 1064, 89th Cong., 2nd Sess., reprinted in [1966] U.S.Code Cong. & Ádmin.News, pp. 2070, 2071. While we are not bound by the holdings of intermediate federal courts, we cannot escape the rationale of the court in Stribling, nor, of course, can we ignore the clear mandate of the legislative body.

But, appellant urges, even if effect cannot be given to the beneficiary designation contained in the instrument dated January 27,1976, it may nevertheless be given effect as a revocation of the existing beneficiary designation because the statute does not expressly provide that a revocation must be received in the administrative office prior to death. We cannot agree because such a construction would indirectly accomplish that which is directly prohibited by the Act. In the event of revocation, the Act supplies the next beneficiaries in succession. To give effect to a revocation not received prior to death would serve to designate the next beneficiary supplied by the Act and would result in the same administrative difficulties which Congress sought to avoid by its mandate of strict construction.

Appellants also urge that there is no evidence the original application designating appellee as beneficiary was ever received in the appropriate office; and further, that there is no evidence the designated beneficiary, Mrs. Vernon Jezek, is one and the same person as the appellee Bobbie Lee Jezek. The application dated August 1, 1975 was introduced into evidence and shows on its face to be received by a Servicemen’s Group Life Insurance representative on August 13, 1975. We find ample evidence in the record to establish that ap-pellee is one and the same as Mrs. Vernon Jezek. These points are therefore overruled.

Affirmed.


author: GUITTARD, Chief Justice.

text:
    Robert G. KAISER, Appellant, v. NORTHWEST SHOPPING CENTER, INC., Appellee.
    No. 19970.
    Court of Civil Appeals of Texas, Dallas.
    July 27, 1979.
    Rehearing Denied Aug. 28, 1979.

      Johnny W. Mims, Adams, Mims, and Vor-pahl, Dallas, for appellant.
    John C. Biggers, Rick W. Hightower, Big-gers, Beasley, Amerine & Earle, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

In this suit by a lessee for breach of the lessor’s obligations under a commercial lease, the trial court rendered summary judgment based on a plea of res judicata. On this appeal lessee contends that the present suit is not barred because his present claim is not one that he was required to assert as a counterclaim in the earlier suit against him by lessor. We hold that insofar as lessee’s petition in the present case can be interpreted to claim damages from breaches of lessor’s obligation that occurred since lessee answered in the earlier suit, this suit is not barred, and, consequently, that the summary judgment was improper.

The question must be determined from the pleadings in the two suits. The earlier suit was brought by lessor to recover on several checks delivered by lessee as payment for the rent due under the lease and for termination of the lease for nonpayment of the rent. Lessee alleged in his answer in that suit that he had made a timely tender of all rentals due and performed all his obligations under the lease, but that lessor had—

engaged in a course of continuing harassment, in a course of leaving the parking lot adjacent to the Defendant’s store in darkness, and in a course of leaving the shopping center in a general state of disrepair — notwithstanding the fact that the Defendant was paying for maintenance thereof — all of which was designed for the sole purpose of requiring this Defendant to either vacate the premises or voluntarily delete from his lease that language which gave him the exclusive right to maintain a pharmacy in the shopping center.

Lessee’s prayer was that the lessor take nothing and that lessee “go hence without day and recover his costs.”

The judgment in the earlier suit awarded plaintiff a recovery for the rent claimed and an attorney’s fee, but denied all other relief. This court affirmed the judgment to the extent of the recovery of rent, but reversed and remanded on the issue of the attorney’s fee. Kaiser v. Northwest Shopping Center, Inc., 544 S.W.2d 785 (Tex.Civ.App.—Dallas 1976, no writ). That issue was subsequently settled and an agreed judgment was entered.

The present suit was filed while the earlier case was still pending. In his amended petition, lessee alleges that lessor breached the lease by engaging in a “course of harassment” of the lessee and “studied neglect of the property” and thus failed to afford lessee “a reasonable environment from which to draw his customers.” Specifically, lessee alleges that lessor failed to repair the lighting fixtures in the parking lot in the immediate vicinity of his drug store, though frequently requested to do so, and that lessor failed to keep the parking surface in good repair. Lessee further alleges that as a result of these breaches of the lease he has suffered special damages in the amount of $400,000 from loss of business and from “robberies on virtually a monthly basis” commencing at approximately the same time lessor began the course of conduct complained of. The petition alleges no date on which any of the breaches or damages occurred.

Lessor answered by a plea of res judicata and filed a motion for summary judgment. Attached to this motion is an affidavit stating: “The alleged breaches of Northwest Shopping Center as enumerated in Robert G. Kaiser’s Answer are the same alleged breaches that Robert G. Kaiser is now alleging in the present suit.”

Lessee attacks the summary judgment on the ground that lessor’s motion and affidavit fail to establish that the former judgment is res judicata of the present suit because they fail to show that any of the damages now alleged had been suffered by plaintiff when the earlier suit was pending. Alternatively, lessee contends that since lessee continued in possession of the leased premises during and after the other suit, fact issues are raised as to whether any or all of the damages sued for were caused by lessee’s conduct after that trial.

Lessor contends that the summary judgment was proper because the present petition shows on its face that the breaches of its obligations alleged in the present suit are the same breaches alleged in lessee’s answer in the former suit, and that if lessee had any damage resulting from such breaches, he was required by Rule 97 of the Texas Rules of Civil Procedure to assert his claim by a counterclaim in that suit. Lessor argues that the measure of plaintiff’s damages for the breaches alleged in the present case and also in the earlier suit is the reduction in value of the leasehold for the remainder of the term. The damage was done, lessor asserts, when the breach occurred, and, therefore, lessee was required to make his claim at that time for all his damages, past and prospective, just as if he had sustained a personal injury and the full extent of his damages had not yet been determined.

We conclude that the claim asserted in this suit is not so clearly one for damages that accrued before the former trial as to be one that lessee was required to assert in that suit. In the first place, the time of accrual of the present cause of action is not conclusively established by the similarity of the allegations of the present petition to those in lessee’s answer in the earlier suit, even when taken together with the affidavit accompanying lessor's motion for summary judgment. The statement in that affidavit that the breaches are the same adds nothing because it is only the affiant’s interpretation of the pleading. The affidavit does not state that no breach occurred after lessee answered the first suit or that no additional damages were sustained after that time. The present petition does not allege the date of any breach by lessor or when any damage occurred. Evidence would be admissible to establish a breach after that time. Consequently, the summary-judgment proof does not support the plea of res judicata.

In the second place, the present petition alleges continued breaches of lessor’s obligations under the lease rather than a single breach at a particular time. It avers that lessor commenced and continued for an indefinite period of time a course of conduct in breach of its obligation to keep the outside lights and parking area in good repair. So far as appears from the summary-judgment proof, that breach, if begun before issue was joined in the earlier suit, has continued since that time. The question is raised, therefore, as to whether damages resulting from a breach beginning before lessee answered in the earlier case, but continuing after that time, are within the compulsory counterclaim requirement of Rule 97.

This question depends on whether lessee was bound to treat lessor’s breach of its obligations to repair as a total breach of the lease at the time of the former suit, or whether he could treat it as partial and claim at that time only such damages as might result from failure to repair the lights and parking lot up to that time, leaving for future litigation any damages resulting from subsequent failure to repair. The general rule is that in the event of a material breach of contract, the promisee may treat the breach as total and sue for all foreseeable future damages, or, if the prom-isor has not repudiated the contract, the promisee may elect to treat the breach as partial and bring successive suits for continued or successive breaches. Restatement of Contracts § 317(2) (1932); 4 A. Corbin, Contracts, §§ 946, 954, 956 (1951). This rule does not transgress the principle forbidding “splitting a cause of action,” so long as the successive suits do not become so unreasonable as to be vexatious. Corbin, supra, § 955. With respect to successive breaches of a “continuing contract,” Professor Corbin states the rule as follows:

These contracts too are capable of a series of “partial” breaches, as well as of a single total breach by repudiation or by such a material failure of performance when due as to go “to the essence” and to frustrate substantially the purpose for which the contract was agreed to by the injured party. For each “partial” breach a separate action is maintainable, just as in the case of an “instalment” contract; and for a series of “partial” breaches occurring before any action is brought only one action is maintainable. Corbin, supra, § 946 at 841.

This rule, in our opinion, governs the present case. Although lessee did not file a counterclaim in the earlier suit for the damages then accrued, we assume that his claim was, to that limited extent, a compulsory counterclaim under Rule 97. Therefore, the posture of the present suit is the same as if such a limited counterclaim had been filed. According to the allegations of his present petition, lessee treated lessor’s failure to repair as a partial rather than a total breach by continuing to occupy the premises and repeatedly requesting lessor to make the repairs it was obligated to make. The ultimate amount of lessee’s damages could not have been determined at the trial of the earlier suit, since the outside lights and parking area were within an area reserved to lessor rather than on the leased premises, and lessor could have eliminated further damages at any time by making the repairs requested. Under these circumstances the present suit cannot be considered unreasonable or vexatious. Consequently, we hold that under the facts alleged in the present petition, any damage claimed from breach of lessor’s obligation to repair after lessee filed his answer in the earlier suit is not barred by failure to assert a counterclaim in that suit.

We have found no Texas authority on this exact point, but our holding is consistent with decisions to the effect that a claim for breach of a continuing contract is not barred by a judgment in an earlier suit on the same contract if other breaches of the contract occurred after the claimant in the later suit filed his pleading in the earlier suit. Ben C. Jones & Co. v. Gammel Statesman Publishing Co., 100 Tex. 320, 99 S.W. 701, 703 (1907); Schumann v. Abernathy, 442 S.W.2d 455 (Tex.Civ.App.—Waco 1969, no writ). Under Ben C. Jones, the date of filing the pleading rather than the date of trial or judgment is controlling. Accord: Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866, 874 (Tex.1968); Reserve Life Ins. Co. v. Shelton, 415 S.W.2d 281, 285 (Tex.Civ.App.—Austin 1967, writ dism’d).

We do not determine on this appeal the proper measure of the damages alleged in the present petition or whether the special damages alleged are recoverable because these questions have not been fully briefed and we cannot anticipate what proof will be offered or what amendments to the pleadings will be allowed. The only question presented to us is whether this record shows conclusively that the present claim was one that had accrued at the time of the earlier suit and should have been pleaded in that suit. We hold that the record is not conclusive on that point. Consequently, the trial court erred in rendering summary judgment for lessor.

Reversed and remanded.


author: AKIN, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY and Ralph W. Currie, Appellants, v. Millard L. DRAKE, Executor of the Estate of Eugene Dixon Duncan, Deceased, Appellee.
    No. 19695.
    Court of Civil Appeals of Texas, Dallas.
    July 31, 1979.
    Rehearing Denied Sept. 10, 1979.

      Ralph W. Currie, Dallas, pro se.
    Gary W. Maxfield, Elliott, Churchill, Hansen, Dyess & Maxfield, Dallas, for appellants.
    Roy J. True, Stephen R. Bishop, True & Zable, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

This is a sequel to a dispute concerning the payment of attorney’s fees from the Estate of Eugene Duncan. This is the fourth appeal concerning this estate and a brief background is necessary to fully understand the issues presented by this appeal. In 1968, Elizabeth Holt was appointed administratrix of the Duncan estate in Texas. In New Hampshire, appellee, Millard Drake, was appointed executor of the Duncan estate under Duncan’s will which was probated in New Hampshire. Appellee attempted to have the New Hampshire will admitted to probate in Texas as a foreign will and to have Holt removed as adminis-tratrix, but Holt resisted appellee’s efforts. Holt hired Currie, an attorney in Texas, to resist the application to probate the New Hampshire will in Texas. The trial court admitted the will to probate, but Holt appealed, and the Eastland Court of Civil Appeals reversed and remanded the cause on the ground that evidence was admitted in contravention of the Dead Man’s Statute. Holt v. Drake, 505 S.W.2d 650 (Tex.Civ.App.—Eastland 1973, no writ). On remand in 1976, Duncan’s will was admitted to probate in Texas, and Holt was removed as administratrix.

Before Holt was removed as administra-trix, she sought and obtained approval from the probate court to pay her attorney, Cur-rie, $12,000 from estate funds for services rendered in resisting probate of the New Hampshire will. The executor of the Duncan estate appealed this order. On appeal, we held that since administratrix Holt did not have a legal duty to contest the foreign will, the attorney’s fees paid to Currie were not chargeable to the Duncan estate. Accordingly, we reversed the order authorizing payment. Drake v. Muse, Currie & Kohen, 532 S.W.2d 369 (Tex.Civ.App.—Dallas 1975), writ ref’d n. r. e. per curiam, 535 S.W.2d 343 (Tex.1976).

After further proceedings in the probate court and on yet another appeal, we held in Currie v. Drake, 550 S.W.2d 736 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.), that administratrix Holt was liable to the estate for the $12,000 she paid to Currie and that the indebtedness was the personal debt of Holt. We did not render a final judgment, but remanded the case to the probate court to allow Holt and Currie to present evidence on the amount of legal fees that Currie was rightfully entitled to receive from the Duncan estate for services rendered to the estate, exclusive of the $12,000 for resisting the New Hampshire will. On remand, the probate court found that Cur-rie had rendered legal services to the estate in the sum of $5,000 for which he had not been paid.

In the order now before us, the probate court determined that Holt and appellant Trinity Universal Insurance Company, Holt’s surety, and appellant Currie were jointly and severally liable for the $12,000 in attorney’s fees paid to Currie for services rendered to Holt in contesting the New Hampshire will. The probate court then allowed Holt, Currie, and Trinity Universal an offset for the $5,000 of legal services Currie rendered the estate prior to the application of the New Hampshire will. The court in its order added interest to the $12,000 and held Currie, Holt, and Trinity Universal jointly and severally liable for the resulting total of $8,671 ($7,000 plus $1,671 in interest). The probate judge also held that Holt and Trinity Universal were jointly and severally liable under Tex. Probate Code Ann. § 245 (Vernon Supp. 1978-1979) for appellee’s attorney’s fees in prosecuting this action to recover these funds.

Points on Appeal

On this appeal, appellants Trinity Universal and Currie both complain of several errors committed by the probate court. Holt did not appeal. Trinity Universal argues that the probate court erred for the following reasons: (1) in failing to file findings of facts and conclusions of law after proper requests; (2) in holding it liable as surety for administratrix Holt; and (3) in holding it and Holt jointly and severally liable for appellee’s attorney’s fees. Currie complains of the probate court’s action in holding him jointly and severally liable, along with Holt and Trinity Universal, to the estate for the $12,000 of attorney’s fees Holt paid to Currie. He also asserts that Holt and Trinity Universal should not receive a credit for the $5,000 due him for services rendered to the estate. He next contends that the probate court erred in calculating interest on the $12,000 instead of on $7,000.

We reverse the judgment of the probate court in six respects: (1) in holding Trinity Universal and Holt liable for appellee’s attorney’s fees under section 245 of the Probate Code; (2) in holding Holt and Trinity Universal jointly and severally liable, as opposed to primarily and secondarily liable, for the $12,000 of attorney’s fees paid to Currie for Holt’s individual debt; (3) in holding Currie jointly and severally liable for reimbursement of the $12,000 of attorney’s fees; (4) in giving Holt and Trinity Universal a credit for the $5,000 due Currie; (5) in failing to grant judgment for Currie for $5,000; and (6) in calculating interest.

Failure to Make Findings of Fact and Conclusions of Law

We address Trinity Universal’s contentions first. Trinity Universal first argues that the probate judge committed reversible error by failing to file findings of fact and conclusions of law after Trinity Universal made timely requests for such findings. Appellant Currie also raises this same argument. We overrule this contention because Trinity Universal and Currie have failed to show that they have suffered injury by the failure of the probate judge to prepare findings of fact and conclusions of law. Beneficial Finance Co. of Austin v. Williams, 539 S.W.2d 90, 91 (Tex.Civ.App.—Beaumont 1976, writ dism’d). Indeed, the only questions presented to the probate judge and to us concern questions of law rather than questions of fact. Thus, the record affirmatively reflects that appellants have suffered no prejudice by the failure of the trial judge to file findings of fact and conclusions of law because we can determine the questions of law presented and render judgment accordingly. See Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 120 (1944). Although the better practice is for the judge to file his findings and conclusions, it is not reversible error here.

Assessment of Attorney’s Fees

Trinity Universal next contends that the probate court erred in assessing appellee’s attorney’s fees against it and Holt under Tex.Probate Code Ann. § 245 (Vernon Supp. 1978 — 1979). Section 245 reads as follows:

When the personal representative of an estate or person neglects the performance of any duty required of him, and any costs are incurred thereby, or if he is removed for cause, he and the sureties on his bond shall be liable for costs of removal and other additional costs incurred that are not authorized expenditures, as defined by this code. [Emphasis added]

Although the judgment recites that the attorney’s fees were awarded solely under section 245 of the Probate Code, appellee argues that the award of attorney’s fees should be affirmed on the basis of both section 245 and Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp. 1978-1979), which provides generally when attorney’s fees are recoverable. Appellee asserts that because the surety bond is a contract, this suit is a suit on a contract, and, therefore, article 2226 permits the recovery of attorney’s fees. We disagree for the following reasons.

First, section 245 of the Probate Code does not authorize the assessment of attorney’s fees against Holt and Trinity Universal because that section only provides for the recovery of “costs”. Tex. Probate Code Ann. § 12(a) (Vernon 1956) states that “[t]he provisions of law regulating costs in ordinary civil cases shall apply to all matters in probate when not expressly provided for in this Code.” The term “costs” in civil proceedings does not include attorney’s fees, unless otherwise provided for by contract or statute. Johnson v. Universal Life & Accident Insurance Co., 127 Tex. 435, 94 S.W.2d 1145, 1146 (1936). Consequently, attorney’s fees are not costs recoverable under section 245. Had the legislature intended that attorney’s fees be recoverable as costs under section 245, it would have expressly so provided. In this respect, we note that Tex. Probate Code Ann. § 242 (Vernon 1956) expressly provides for attorney’s fees under expenses allowed a personal representative. Because there is no mention of attorney’s fees in section 245, we hold that they are not recoverable as costs under section 245.

Second, article 2226 does not permit appellee to recover attorney’s fees because the surety bond is not a contract between appellee and Trinity Universal. The bond is a contract only between admin-istratrix Holt and Trinity Universal. Article 2226 provides:

Any person . . . having a valid claim ... or suits founded on oral or written contracts, may present the same to such persons . . . and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. [Emphasis added]

In construing article 2226, we apply the rule that article 2226 must be strictly construed because it is penal in nature. Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 818 (Tex.1970). Although we agree that appellee’s suit against Trinity Universal is predicated upon the bond covering defalcation by the administratrix, Trinity Universal’s liability is dependent upon the primary liability of Holt, its principal. Holt cannot be held liable for attorney’s fees under article 2226 because there is no contract between appellee and Holt upon which attorney’s fees may be predicated. Consequently, it follows that if Holt is not liable for attorney’s fees, neither is Trinity Universal liable because its liability as surety cannot extend beyond the liability of its principal, Holt. Accordingly, we hold that Trinity Universal cannot be assessed attorney’s fees under article 2226. See Janak v. Security Lumber Co., 513 S.W.2d 300, 302 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

Liability of Surety for Defalcation by Principal

We next address Trinity Universal’s contention that the probate court erred in holding it liable on Holt’s bond for the $12,000 of attorney’s fees Holt paid to Cur-rie for resisting the probate of the New Hampshire will. Trinity Universal asserts that no evidence or, alternatively, insufficient evidence exists of any act by adminis-tratrix Holt, in her capacity as administra-trix, to constitute a breach of the surety bond. Trinity Universal’s bond guaranteed that the administratrix “shall well and truly, faithfully perform all the duties required of her” as administratrix. Trinity Universal contends that before liability attaches to it as surety, there must be evidence that the administratrix has breached her fiduciary duty so as to fall within the ambit of the bond. According to Trinity Universal, the administratrix did not breach her fiduciary duty because she did not pay the attorney’s fees fees to Currie fraudulently or in bad faith. It is undisputed that Holt paid the legal fees to Currie pursuant to an order of the probate judge which was later reversed on appeal by this court. Currie v. Drake, 550 S.W.2d 736 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.).

Furthermore, Trinity Universal contends that the prior opinion of this court in Currie v. Drake established liability of the admin-istratrix in her individual capacity, as distinguished from liability in her fiduciary capacity. In Currie v. Drake, we stated:

[A]ny sum charged by her attorneys for contesting the probate of the foreign will was her debt and not chargeable to the estate. Since her debt is personal and not in the capacity as administratrix, the probate court was correct in holding her individually liable for reimbursement.
When the estate paid Holt’s attorneys’ fees, she directly benefited and, therefore, is personally liable for the restitution to the estate.

550 S.W.2d at 739. Trinity Universal stresses that the above language establishes that Holt acted wrongfully in her individual capacity as distinguished from her capacity as administratrix and, therefore, it is not liable on her bond. Additionally, Trinity Universal cites American Surety Co. of New York v. Norton, 238 S.W. 1111 (Tex. Comm’n App.1922, holding approved), for the proposition that before a surety can be held liable on its bond, there must be pleading and proof that the administratrix breached her fiduciary duty. Essentially, Trinity Universal asserts that there is no pleading or proof to support a finding that Holt breached her fiduciary duty, and that our prior opinion establishes that the ad-ministratrix incurred the liability for $12,-000 in attorney’s fees in her individual capacity, rather than in her fiduciary capacity. We cannot agree with these contentions.

Although in Currie v. Drake we held ad-ministratrix Holt personally liable for repayment of the attorney’s fees for contesting the application for probate of the New Hampshire will, this does not mean that the surety is discharged from its liability on its bond. It has been judicially determined by this court that Holt wrongfully paid attorney’s fees out of the monies of the estate to Currie for her personal benefit. Consequently, she breached her fiduciary duty to the estate for which breach the surety is liable on its bond. See Ward v. Maryland Casualty Co., 140 Tex. 124, 166 S.W.2d 117 (1942); Smith v. Paschal, 1 S.W.2d 1086 (Tex.Comm’n App.1928, judgmt. adopted). The very purpose of the bond was to protect the estate from any defalcation committed by the administratrix, including using estate funds to pay her personal obligations. Thus, the probate judge correctly held Trinity Universal liable on its bond because Holt breached her fiduciary duty by paying her personal debt with monies from the estate.

Fraud

Furthermore, fraud on the part of the administratrix, as argued by Trinity Universal, is not a condition precedent to Trinity Universal’s liability on its bond. In Mills v. Baird, 147 S.W.2d 312, 316 (Tex.Civ.App.—Austin 1941, writ ref’d), the court stated:

The undertaking of the surety is to make good any breach of official duty of its principal, whether or not tainted with fraud —-not because of anything the surety may have done or failed to do, but because the surety has so bound itself by its undertaking. [Emphasis added]

Neither does American Surety Co. of New York v. Norton, 238 S.W. 1111 (Tex.Comm’n App.1922, holding approved), support Trinity Universal’s position. The requirements of that case, i. e., pleading and proof of a breach of duty by the representative before a surety can be held liable on its bond, have been met by our opinion in Currie v. Drake. When the representative’s breach of her fiduciary duty has been established as a matter of law, no necessity exists to plead and to prove the representative’s breach. Here, the probate court followed our holding in Currie v. Drake and correctly imposed derivative liability on Trinity Universal as surety for Holt’s defalcation.

Liability of Currie

We now turn to appellant Currie’s points of error. We first address his argument that the probate court erred in holding him jointly and severally liable with Holt and Trinity Universal to the estate for the $12,-000 in legal fees he received for contesting the probate of the New Hampshire will. Currie contends that he cannot be ordered to return these funds to the estate because, as between Holt and him, he has earned this money for services rendered. We agree.

Currie has no liability to the estate merely because Holt paid her obligation to him with estate funds in breach of her fiduciary duty. Although we determined that administratrix Holt had no legal duty to contest the New Hampshire will, she nevertheless had paid her personal indebtedness to Currie with estate funds. No question exists with respect to Holt’s indebtedness to Currie for these fees. Absent some allegation of wrongdoing or conspiracy between Holt and Currie, no legal theory supports holding Currie liable to the estate for reimbursement because as between Holt and Currie the fees were earned by Currie.

In holding Currie liable, the probate court apparently relied on the rule in Peticolas v. Carpenter, 53 Tex. 23, 29 (1880), which we cited in our prior opinion, Currie v. Drake, 550 S.W.2d at 739. Peticolas held that a party obtaining any benefit or advantage through a judgment that is later reversed must return what he received to the other party. Insofar as we know, the rule in Peticolas has never been applied, and should not be applied, to a situation where a third party renders legitimate services, apparently for an estate, and receives payment for those services, but where it is later determined that those services were for the benefit of the personal representative rather than the estate. If a third party could be ordered to reimburse an estate for fees earned because an appellate court determined that the representative wrongfully paid them, then third parties would be reluctant to render services to estates. This would be untenable because it would hamper the orderly administration of estates. Here, administratrix Holt acted wrongfully in using estate funds to pay her individual debt to Currie, and absent some allegation that Currie breached a duty to the estate, Currie cannot, as a matter of law, be held liable to the estate for Holt’s malfeasance. Accordingly, we hold that the probate court erred in rendering judgment against Currie for return of these funds.

Res Judicata

Appellee argues, however, that Currie’s liability to the estate is res judicata because Currie’s liability was established by our opinion in Currie v. Drake, 550 S.W.2d 736 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). We cannot agree that res judicata applies here because no final judgment was rendered with respect to Currie’s liability in our former opinion. Indeed, that question was not addressed by this court. Instead, we reversed and remanded for further proceedings the order of the probate court which had held Holt and Currie liable for reimbursement to the estate. Before the doctrine of res judicata is applicable, a final judgment must exist. See Stafford v. Powell, 148 S.W.2d 965, 966 (Tex.Civ.App.—Eastland 1941, no writ). Because no such final judgment has been rendered, that doctrine is not applicable. See Kidd v. Presswood, 266 S.W.2d 191, 193 (Tex.Civ.App.— Waco 1954, writ ref’d n. r. e.). Neither is the doctrine of estoppel applicable, as urged by appellee, because estoppel depends upon detrimental reliance by the other party. Because no detrimental reliance exists with respect to appellee, that doctrine is also inapplicable.

Joint and Several Liability

Currie’s argument that the probate judge erred in holding him jointly and severally liable with Trinity and Holt for repayment of the $12,000 compels us to correct the probate judgment in one further respect. Generally, joint and several liability arises when two or more persons jointly engage in the commission of a tort or cosign a note or contract. No joint and several liability exists for reimbursement of the $12,000 because Holt is primarily liable and Trinity Universal, as surety for Holt, is secondarily liable, as a matter of law. Demand has been made on Holt to reimburse the estate; she has not done so and judgment has been rendered against her. The surety must now bear that responsibility under its bond. See Arceneaux v. Price, 468 S.W.2d 473, 474 (Tex.Civ.App.—Austin 1971, no writ). No theory of law has been presented to us to impose this liability jointly and severally among the principal, her surety, and her attorney.

Interest and Legal Fees

Currie next asserts that the probate court erred in calculating interest on the $12,000. We agree. Although we have held that Currie is not liable for reimbursement of the $12,000, we address this point so that a final and correct judgment may be rendered. The $12,000 wrongfully paid out of the estate was paid on March 27, 1975. Consequently, prejudgment interest at six percent (6%) is recoverable against Holt, as primary obligor, and Trinity Universal, as secondary obligor, from March 27, 1975, until August 23, 1976, the date of the probate court’s original order finding Holt liable. See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978); Larcon Petroleum, Inc. v. Autotronic Systems, Inc., 576 S.W. 873, 879 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ); D. C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257, 260 (Tex.Civ.App.—Fort Worth), writ ref’d n. r. e. per curiam, 163 Tex. 504, 358 S.W.2d 117 (1962). Post-judgment interest is recoverable at the rate of nine percent (9%) until such time as this sum is restored to the estate. Tex.Rev.Civ.Stat.Ann. art. 5069-1.-05 (Vernon Supp. 1978-1979).

Finally, Currie argues that he is entitled to judgment against the estate for the $5,000 in legal fees for which he has not been paid. We agree. The probate court in its order of April 20, 1978, found that Cur-rie had rendered this amount of legal services to the estate separate and apart from contesting the New Hampshire will of Duncan. The probate judge failed, however, to render judgment for Currie in this sum, plus interest at nine percent (9%) per an-num on this sum from April 20, 1978, until paid. See Thornal v. Cargill, Inc., 587 S.W.2d 884 (Tex.1979) (per curiam). In this respect, the judge erred. No reason exists for denying Currie the fee he had earned from the estate and for applying this sum as a credit to the $12,000 liability of Holt and her surety, Trinity Universal.

Judgment

Accordingly, we render the following judgment pursuant to Tex.R.Civ.P. 434. The appellee, executor for the estate of Duncan, shall recover judgment against Holt and her surety, Trinity Universal, for the sum of $12,000 with interest at the rate of 6% per annum from March 27, 1975 (the date of wrongful payment), to August 23, 1976 (the date of the probate judge’s original order) and thereafter at nine percent (9%) per annum until paid. Judgment is rendered against Holt and for Trinity for all sums paid by Trinity as Holt’s surety on her bond. Currie shall recover judgment against appellee for $5,000 plus statutory interest of nine percent (9%) from April 20, 1978, until paid. In accordance with the probate order, judgment is also rendered against Holt, primarily, and Trinity Universal on its bond for six hundred dollars plus interest at the rate of nine percent (9%) per annum from August 31, 1976, until paid. Costs of this appeal shall be taxed one half to Trinity Universal and one half to appel-lee.

Reversed and rendered.