author: HALL, Chief Justice.

text:
    EVANS v. WHICKER et al.
    No. 3988.
    Court of Civil Appeals of Texas. Amarillo.
    April 5, 1933.
    Rehearing Denied April 26, 1933.

      White, Taylor & Gardner, of Austin, for appellant.
    Robt. A. Sowder, of Lubbock, and E. A. Bills and T. Wade Potter, both of Littlefield, for appellees.
   HALL, Chief Justice.

The appellant, Mrs. Evans, a feme sole, as assignee of Dozier Construction Company, brought this suit against J. C. Whicker and the Lubbock National Bank to recover the amount due upon five paving certificates which had been issued by the city of Little-field to the construction company to cover the pro rata cost of paving in front of five lots of land in said city and further to foreclose the assessment lien upon the real estate.

The first paving certificate is dated December 21,1928, and certifies that by virtue of an ordinance and other proceedings of the city of Littlefield, passed and had on the 14th day of July, 1928, an assessment was levied in the sum of $206.40 against certain property mentioned therein and against the true owner thereof, who it is recited is J. C. Whicker. The other four certificates dated January 4, 1929, each certify that by virtue of an ordinance and other proceedings passed and had on the 7th of September, 1928, there was levied an assessment in the sum of $137.48 against the property described therein and against the true owner, who is stated to be J. O. Whicker. Each certificate contains" this recital: “That all proceedings with reference to making such improvements have been regularly had in compliance with the law, the charter of said city and the terms of this certificate and that all prerequisites to the fixing of the lien and claim of personal liability evidenced by this certificate have been performed.”

Plaintiff further alleged that the city of Littlefield was authorized to order the improvements of its streets and to assess a part of the cost against abutting property and the owners thereof under article 1105b, Vernon’s Annotated Civil Statutes. That the issuance by said city of said certificates under the law and the order for the improvements, the completion of the contract by the construction company, and the acceptance of the work by the city, together with the assignment of the five installments of said certificates to plaintiff, gave her a lien on the property from April 10, 1928, the date said improvements were ordered, and fixed the personal liability of Whicker from said date. That the assessment evidenced by said certificates constituted special taxes upon said property. That the Lubbock National Bank was claiming some character of interest in said property, but that whatever its nature may be, same was inferior to plaintiff’s liens. The prayer is for judgment against Whicker for the amount of her certificates, principal, interest, attorney’s fees, and costs, and for foreclosure of her liens as against both defendants.

Whicker answered, pleading his discharge in bankruptcy.

The Lubbock National Bank answered, pleading the bankruptcy of Whicker; that the bankruptcy court had appointed a trustee for Whicker’s estate; that by virtue of a deed from said trustee purporting to convey to it the real, estate involved, free and clear of all liens and incumbrances, save and except taxes, it held title to said property free of plaintiff’s alleged liens thereon. The bank also attacked the sufficiency of the certificates held by. plaintiff upon the ground that no assessment ordinance was ever passed by the city, that no levy was ever made against the property, that no testimony was heard at the hearing, and that the assessments were made on the front-foot plan and void. The bank prayed that the cloud on its title to said real estate east by said certificates be removed.

By her first supplemental petition plaintiff alleged that the assessments made by the city, were taxes and denied that the bankruptcy court had attempted or intended to cut off plaintiff’s prior, valid liens on the property, and if such was the real intention of the bankruptcy court, such action was void as to plaintiff’s liens, because she was not a party to the bankruptcy proceedings, had no notice of the proposed sale or of the tíme and place thereof, and she further alleged that the defendants or those under whom they claimed did not, within fifteen days from the time of the levy of said assessment, appeal therefrom to a court having jurisdiction as provided by law.

It appears that the city of Littlefield is a city of about 3,000 inhabitants and as such wás authorized to improve its streets under the Acts of 1927 (1st Called Sess.) c. 106, Vernon’s Ann. Civ. St. art. 1105b, and to levy the assessments involved in this action. On August 2, 1928, when Whicker filed his petition in bankruptcy, he listed all of the lots here involved as assets of his estate, but did not schedule any debt due to Dozier Construction Company or appellant, Nella T. Evans. On August 14th thereafter Elkins was appointed trustee in bankruptcy of said estate and the next day made application for the sale of the property involved herein “at public sale, for cash, to the highest bidder,” listing the Lubbock National Bank and others as lien claimants, but making no reference whatever to the Dozier Construction Company or Mrs. Evans, and praying “that notice by registered mail be sent to each of the above alleged lien claimants and that they and each of them he required to file their claim before this Court on a day to be fixed by the Court and show cause if any they have why an order should not be made to sell said property free and clear of all liens, interest and •encumbrances and in default of answer to said claimant, that an order be entered by the Court debarring said claimants and each of them from hereafter asserting any right, interest or claim in and to the property here-inabove described.” On August 30th thereafter, the referee ordered the property involved herein, together with other property, “sold free and clear of all liens, save and except taxes ⅜ ⅜ * at public or private sale for cash to the highest bidder, the said trustee to keep an accurate account of the property sold, the price received therefor, and to whom sold, which account he shall file with the referee within ten days from this date.”

On June 23, 1931, the claim of the Lubbock National Bank was approved as a secured claim on the property involved “subject to liens.” On July 20th thereafter the trustee reported to the referee that on said date he had sold certain property, including the lots here involved, pursuant to the order of sale made the 30th day of August, 1928, to the defendant Lubbock National Bank, “for the sum of $1775.55 cash, to be credited upon the secured claim of the Lubbock National Bank,” and that said property was “sold free from all liens and encumbrances save and except taxes,” and that “it is understood that the purchaser takes property subject to all taxes due or to become due thereon to the various taxing powers.” On the same day the referee confirmed the sale by an order which recites, “said property being sold free from all liens and encumbrances, save and except taxes, it being understood that the purchaser takes property subject to all taxes due or to become due thereon to the various taxing powers,” and on the same day the trustee executed his deed conveying said property to said Bank “free from all liens and encumbrances, save and except taxes due and to become due thereon to the various taxing powers.”

The case was tried to the court without a jury, resulting in a judgment that Mrs. Evans take nothing against either of the defendants and that the cloud cast by the assessments be removed from the title of the Lubbock National Bank to the property involved.

The appellee contends that because, under the decisions of this state, a claim for street paving arising under the statutes of this state, article 1105b, has been held not to be a tax within the meaning of the Constitution, art. 16, § 50, that the bank, in purchasing the property from the trustee, is not liable for the several amounts assessed against the lots by the city.

In determining this question we are governed by the decisions of the Supreme Court of the United States, especially when that court construes the various provisions of the Bankruptcy Act, 11 USCA; Edrington v. Gee (Tex. Civ. App.) 30 S.W.(2d) 360; 11 Tex. Jur. 855, § 106. While the Texas courts hold that special assessments, such as those involved in this proceeding, are not “taxes” within the meaning of the Texas Constitution, nevertheless, a federal question is presented, arising under the Bankruptcy Act, and we must be governed by the holding of the Supreme Court of the United States upon that issue. That court, in New Jersey v. Anderson, 203 U. S. 483, 27 S. Ct. 137, 140, 51 L. Ed. 284, has held otherwise. In that case, the amount due as an annual license fee or franchise tax was involved. The court said: “The bankruptcy act is a Federal statute, the ultimate interpretation of which is in the Federal courts * * * still a state court, while entitled to great consideration, cannot conclusively decide that to be a tax within the meaning of a Federal law providing for the payment of taxes, which is not so in fact. The section (64a) [11 USCA § 104 (a)] itself declares that, in case of disputes as to the amount or legality of any such tax, they shall be heard and determined by the court. The state court may construe a statute and define its meaning, but whether its construction creates a tax within the meaning of a Federal statute, giving a preference to taxes, is a Federal question, of ultimate decision in this court. We are of opinion that this claim was for a tax. The language of the act, as we have said, is very broad, and includes all taxes.” ,,

The section of the Bankruptcy Act just mentioned provides: “Debts which have priority, (a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such' payment, he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court.”

See, also, Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; In re Lange Co. (D. C.) 159 F. 586; In re F. G. Borden Co. (C. C. A.) 275 F. 782; Remington on Bankruptcy, § 2800; McDowell v. City of Barberton (C. C., A.) 38 F.(2d) 786.

The case of In re Gerry (D. C.) 112 F. 958, seems to be decisive of the rights of the parties herein, without regard to the construction placed by the Supreme Court of the United States upon the Bankruptcy Act. In that case certain real estate belonging to the bankrupt, upon which there were mortgage liens, ground rents, municipal claims, and taxes unpaid, was sold under an order by the referee which specified that the purchaser should take the property “under and subject to the incumbrances, respectively, hereinbefore mentioned.” The purchaser had to pay some of the liens for municipal claims and was insisting that the bankrupt’s estate should reimburse him. The trustee’s petition asking for an order of sale recited, in part, “that there are also unpaid taxes and water rents for a year or more on said properties and that some of the above mentioned properties are further subject to municipal claims.” The referee ordered the sale to be made under and subject to the ineumbrances mentioned. The trustee’s deed contained the same recital. The court held that the word “ ‘incumbrances? * * * includes a lien for a municipal claim or for a tax. * * * If, therefore, as I think, the purchaser agreed to take the land subject to all the liens, he should be held to his contract. Section 64 of the bankrupt act [section 104, 11 USCA], making it the duty of the trustee to pay all taxes legally due and owing by the bankrupt, did not prevent the purchaser, as between himself and the trustee, from taking this duty upon his own shoulders. Neither, in view of his agreement to pay the liens, is he in any position to insist that the liens were discharged by the sale,, and could have been claimed by the lienhold-ers out of the fund.” In re Reading Hat Mfg. Co. (D. C.) 224 F. 786.

If it be admitted that the claims involved in this action were not to be preferred under the Bankruptcy Act, in view of the decisions of this state construing paving liens not to be taxes within the Constitution, nevertheless, we are convinced that when the bank purchased the property from the trustee under a deed which recites that it took the lots free from all liens and incum-brances “save and except taxes due and to become due thereon to the various taxing powers,” under the Gerry Case and the well-recognized rule of waiver of rights it must be held to have taken the lots incumbered by the paving liens asserted by the appellant. It is fundamental law that statutory provisions designed solely for the benefit of individuals may be waived by the persons for whose benefit they are designed. 6 R. C. L. 707, § 113.

As said in 27 R. C. L. 906, § 3: “The doctrine of waiver, from its nature, is applicable generally speaking, to all rights or privileges to which a' person is legally entitled, whether such rights or privileges rest in the individual and are intended for his sole bpnefit. A right or privilege given by statute maybe waived or'surrendered, in whole or in part, by the party to whom or for whose benefit it is given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from said statute or other legal or equitable source.”

The record fails to show that the bank made any protest in the federal court to tne order of the referee directing the trustee to sell the property subject to taxes and should now be estopped from denying its liability under the express terms of the trustee’s deed: "We think it is clear that the bank has waived any rights it may have had. Fidelity & Deposit Company of Maryland v. Pence (Tex. Civ. App.) 272 S. W. 234; 17 Tex. Jur. 135, §7.

When incumbered property is sold by the trustee subject to liens, the lienor may enforce his lien by appropriate proceedings. First Trust Co. v. Baylor (C. C. A.) 1 F.(2d) 24, 27; In re North Star Ice & Coal Co. (D. C.) 252 F. 301, 303.

The appellee insists that the trial court's judgment is correct for the further reason that the duty rests upon the governing body of the city to have a hearing and to actually receive evidence as to the proposed cost and enhanced value of the property by reason of the proposed improvement, and that if no such evidence is received, the ordinance is void, and may be collaterally attacked.

The ordinance enacted on the 7th day of September, 1928, signed by the mayor and attested by the city secretary, recites that no one appeared to protest or object at the hearing and orders that the hearing be closed and the assessments made as therein ordained. W. G. Street, city secretary, testified with reference to the passage of this ordinance that no person was sworn at any meeting to give any evidence nor did any person ever testify that the paving would enhance the value of the property. It seems that the court sustained the objection to Street’s testimony, but later found in accordance with the witness’s statement: In any event, the recital in the ordinance is sufficient.

Pierson, Justice, in Anderson v. Brandon (Tex. Sup.) 47 S.W.(2d) 261, 262, said: “In order that said liens may be valid, it is, of course, necessary that a proper hearing as to benefits be given the owners of property. » ⅝ ⅜ Plaintiffs in error also contend that the fixing of the lien at a date prior to the hearing of the assessment for benefits results in the taking of their property without due process of law, in .contravention of both the State and Federal Constitutions. We think this does not follow, as no lien can be fixed or become effective at all until it has been determined at a proper heáring that the property of plaintiffs in error has been benefited at least to the extent of the amount of the proposed assessment.”

The, fact that there was no hearing will require a reversal of the judgment.

By several propositions the bank attacks the sufficiency of the city’s ordinances and the certificates upon which the suit is based. The general rule is that improvement ordinances shall prescribe the number and amount of payments to be made for the improvements and the time of each payment. 5 McQuillin, Municipal Corporations (2d Ed.) §§ 2012, 2036. Another requirement is that the property assessed should be so described that it may be readily identified and located. Id., § 2017. It is held in City of Waco v. Chamberlain, 92 Tex. 207, 47 S. W. 527, that the property described as “E Street between north line of M Street and the north of K Avenue” was sufficient.

The property in the ordinances is described substantially as follows: “On Fourth Street from its intersection with the East property line of Farwell Avenue to its intersection with the east property line of X I T Drive designated as District No. 2 in paving contract of May 3, 1923.”

The descriptions in the other certificates are equally specific and we think comply with the requirements of the statute. Neither the order for the improvements nor the ordinances making the assessment need necessarily declare that there is a necessity or public necessity for the proposed improvements. City of Ranger v. Southern Ice & Utilities Co. (Tex. Civ. App.) 262 S. W. 839; Connor v. City of Paris, 87 Tex. 32, 27 S. W. 88.

The proceedings of the council show that an estimate was prepared prior to the time fixed for the hearing. One estimate may be made against several parcels when they are owned by the same party, firm, or corporation. The certificates introduced in evidence specify the particular lot or lots, giving the front-foot measurement of each upon which such assessment has been made, and apportions the cost among the several parcels. This we think is a sufficient compliance with the terms of the statute. The city engineer’s estimate of the cost of each division was never introduced in evidence. The record shows that he made an estimate. Whether sufficient or not does not appear and that as to each street or district it had been detached from the ordinance before the latter was introduced in evidence. There is therefore no sufficient showing that an estimate as required by law had ever been prepared before the time fixed for the hearing.

The bank challenges the sufficiency of the several certificates because they do not show that the several lots abutted upon the improvements.

The recital of the certificates is practically the same in each certificate. Certificate No. 210 recites: “There was levied an assessment in the sum of One Hundred Thirty-Seven and 48/100 Dollars, against property situated in said City, fronting 25 feet on the East side of X. I. T. Drive Street, and being Lot or Lots No. W. 45' of 15 in Block No. 30,” etc.

The statement that the property fronted 25 feet on the east side of the street is sufficient to show that the lot abutted upon the street and that the street and property were adjacent one to the other.

For the reasons stated, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: FLX, Chief Justice.

license: Public Domain

text:
    SANCHEZ v. DIXON.
    No. 9034.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1933.
    Rehearing Denied April 19, 1933.
    Douglas & Black, of San Antonio, for appellant.
    David C. Brown, D. A. McAskill, and H. G. Williams, all of San Antonio, for appellee.
   FLX, Chief Justice.

This is a suit instituted by appellee for commissions alleged to have been earned by appellee for procuring the sale of certain land in Mexico, belonging to appellant, on which the fees for selling the land were $5,500, of which appellee claimed one-third, amounting to $1,833.33. It was answered that appellant owed a commission to a partnership consisting of A. M. Wormser, W. P. Wickline, and appellee, and was ready to pay the commission agreed upon, of 2½ per cent., and tendered into court an order upon G. C. Walker, to whom appellant had been instructed to pay it. One L. E. Warner intervened in the suit and sought to recover from appellant one-half of Wickline’s share of the commission. Wick-line disclaimed any interest in the commission. Wormser filed a plea claiming $3,610, about two-thirds of the agreed commission of $4,975.

The cause was tried by jury on twenty-one special issues, some of which were quite multifarious and tended to produce confusion in the mind of the jury. After overruling a motion for judgment by appellant, despite the answers, the court filed probably the strongest argument in favor of Dixon that was made. That argument has been copied into the record and made a part thereof. It covers over four pages of the transcript. The judgment covers over thirteen pages of the record, the object and aim of which was to give appellee a recovery against appellant of $1,975.42. Warner and Wormser and Wick-line were denied a recovery of any sum.

Although t£e question of the existence of a partnership consisting of Wormser, Wickline, and Dixon was of vital importance in solving the problems of this case, it was not submitted to the jury. It was admitted by appellee that the sale of the property involved in this case was a joint venture. The judge, while not submitting the question of partnership to the jury, found that a partnership existed as' charged by appellant. The court seemed to think the Walkers were partners with the others named as partners, and put emphasis on their being charged with notice that Dixon was a partner. The Walkers were not parties to the suit, and were only known through the testimony.

In the case of partners each partner is considered the agent of each and the other partners. Each partner can bind the partnership and the other partners in all matters within the scope of the partnership. A joint adventure is deemed a partnership for a single venture, which partnership may and does apply to any number of ventures. The same rules apply with equal force and applicability to both partnerships and joint adventures. Sabine Tram Co. v. Bancroft, 16 Tex. Civ. App. 170, 40 S. W. 837 (writ refused); McFaddin, Wiess & Kyle Land Co. v. Texas Rice Land Co. (Tex. Civ. App.) 253 S. W. 916, affirmed by Supreme Court in 205 S. W. 888; Thompson v. Duncan (Tex. Com. App.) 44 S. W.(2d) 904, 907.

The court held in the last-cited case: “Courts do not treat a joint venture as identical with a partnership, yet it is universally held that such relation is so similar in its nature to a partnership and in the contractual relation created thereby that the rights as to the members are governed by substantially the same rules that govern partnerships. R. C. L. vol. 15, p. 500; Senneff v. Healy, 155 Iowa, 82, 135 N. W. 27, 39 L. R. A. (N. S.) 219; Irvine v. Campbell, 121 Minn. 192, 141 N. W. 108, Ann. Cas. 1914C, 689.”

It was admitted by appellee in his pleading that “the Leopoldo Sanchez deal with the Walker Bros, was a joint venture entered into by the plaintiff and A. M. Worm-ser and W. P. Wickline.” Appellee admitted in his testimony that the deal was made with the Walkers. The pleadings and evidence of appellee were practical admissions that the partners or joint adventurers had the right to bind him in the negotiations with Walker Bros. If the court was right in deciding that the partnership existed, then the judgment is necessarily wrong.

It is unnecessary to discuss the numerous propositions, and we hold that the case was not properly presented to the jury, and that the verdict and judgment were contrary to law and the evidence.

The judgment is reversed, and the cause remanded.


author: MURRAY, Justice.

text:
    PRICE v. AMERICAN SURETY CO. OF NEW YORK.
    No. 9008.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Rehearing Granted March 29, 1933.
    Motion for Rehearing Overruled April 26, 1933.
    David E. Hume, of Eagle Pass, for plaintiff in error.
    Jackson & Crawford, of Crystal City, and A. W. Penn, of Austin, for defendant in error.
   MURRAY, Justice.

American Surety Company of New York, defendant in error, sued J. L. Price, plaintiff in error, alleging that it was a New York corporation with a permit to do business in Texas; that it was assignee of a judgment taken in North Dakota against J. L. Price and E. D. Smith, copartner's. Such judgment did not recite that service was issued and served on J. L. Price, nor that he appeared in person or by attorney.

J. L. Price, plaintiff in error, complains in his first proposition that the surety company, defendant in error, did not prove that it had a permit to do business in Texas. This was not necessary. Article 1538 exempts corporations which are required to secure certificates of authority to do business from tbe commissioner of insurance from tbe necessity of proving its permit to do business in Texas. Tbis question is fully discussed in tbe case of American Nat. Ins. Co. v. U. S. Fidelity & Guaranty Co. (Tex. Civ. App.) 24 S.W.(2d) 474. We will not repeat tbe discussion bere.

Price contends, in bis second proposition, that tbe surety company, having alleged that be bad been duly served with process and bad appeared thereto by his duly authorized attorney, having filed an answer therein, should have been required to establish same by proof, and by his third proposition be contends that, being sued upon a foreign judgment, silent as to service, be was entitled to contradict tbe allegations of tbe petition as to service and jurisdiction. AVe will discuss these two propositions together, as they are very closely related.

Tbe disposition we make of tbe third proposition renders any discussion of the second unnecessary.

There can be no question but that Price would have had a right to raise the issue of service under a proper plea. Easley v. McClinton, 33 Tex. 288; Mallory v. Russell (Tex. Civ. App.) 242 S. W. 1112; Norwood v. Cobb, 15 Tex. 500; Redus v. Burnett, 59 Tex. 576; Chunn v. Gray, 51 Tex. 112.

The only remaining question is, Was there a proper plea? Price made a plea to the jurisdiction which was excepted to by the surety company, but we find no order sustaining or overruling this exception. It will therefore be presumed it was not presented to the court, not acted upon by the court, and thereby waived by the surety company. However, in the absence of this plea we feel that Price should have been permitted to raise this issue. The surety company in their petition alleged “that the North Dakota Court had jurisdiction over the person of the defendant * * * and that the defendant was duly served with process in said action and appeared thereto by his duly authorized attorney, having filed an answer therein.” To these allegations Price entered a general denial, thus putting in issue these very questions, and certainly, if it did not become the duty of the surety company to prove these allegations, Price should have been permitted to offer evidence to disprove them. This was refused him. However, Price was called to the witness stand by attorneys for the surety company, and, in answer to questions by them, denied that he had been served with process in the case in North Dakota; that he had ever entered his appearance there or authorized anybody else to do so for him.

At the close of the testimony, both sides requested an instructed verdict. The trial court refused the request of Price, but granted the request of the surety company. As all of the evidence in the case was to the effect that the North Dakota court did not have jurisdiction of the person of Price, the trial court should have given an instructed verdict for Price.

The judgment of the court below is reversed, and judgment here rendered for the plaintiff in error, J. L. Price.-

On Motion for Rehearing.

Defendant in error has called our attention to the fact that, while there is no order striking out plaintiff in error’s plea to the jurisdiction of the court of North Dakota, there is a notation that the trial court did not permit such plea to be read to the jury, and that he excluded testimony on this subject; that for this reason defendant in error did not develop his testimony on the question of jurisdiction of the North Dakota court. Under such circumstances we were probably in error in here rendering this cause.

Defendant in error contends that we should not have considered Price’s assignments of error, as the record does not show that a motion for a new trial was filed or acted upon by the trial court. This contention is made for the first time in its motion for a rehearing.

Where the trial court withdraws the case from the consideration-of the jury and gives- an instructed verdict, the loser in the trial court need not file a motion for a new trial. The purpose of a motion for a- new trial is to ¿ive the trial court an opportunity to pass upon questions that he has not theretofore had an opportunity to pass upon.. Where the court instructs a verdict, the case stands on the same footing as cases tried before the court without a jury, so far as the necessity for filing a motion for a new trial is concerned. Article 1844, R. C. S. 1925, as amended by Acts 1931, 42d Leg. p. 117, c. 75, § 1 (Vernon’s Ann. Civ. St. art. 1844); Egan v. Lockney Farmers’ Co-op. Soc. (Tex. Com. App.) 284 S. W. 937; Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667.

The motion for a rehearing is granted to the extent that judgment will not be here rendered, but the judgment of the trial court will be reversed and the cause remanded.


text:
    HECHT et al. v. ALTON.
    No. 9048.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    Jesse G. Foster and A. B. Crane, both of Raymondville, for appellants.
    R. F. Robinson, S. L. Gill, O. N. McNeil, and Jno. W. Hill, all of Raymondville, for appellee.
   MURRAY, Justice.

Eugene Alton, appellee herein, sued W. G. Hecht, appellant, upon a judgment rendered in the district court of Martin county, Minn. Appellant answered, setting up in substance the following: (1) That the Minnesota court was without jurisdiction to render ‘judgment because of false issues and want of parties; (2) that fraud was committed in the Minnesota court; (3) that the judgment was obtained on perjured testimony; (4) that there was a joint venture and a cross-action.

The trial court sustained exceptions and struck out the entire answer. In this action the trial court committed no error.

Article 4, § 1, of the Constitution of the United 'States, provides, in effect, that fuli faith and credit shall be given in each state to the judicial proceedings of every other state. Under this provision of our Federal Constitution none of the defenses set up by appellant was available to him, and the trial court properly struck out his answer. Fauntleroy v. Lum, 210 U. S. 230, 28 S. Ct. 641, 52 L. Ed. 1039; Bray v. Union Natl. Bank (Tex. Civ. App.) 194 S. W. 1165; U. S. Const, art. 4, § 1; Hall v. Mackay, 78 Tex. 248, 14 S. W. 615; American Express Co. v. North Fort Worth Undertaking Co. (Tex. Civ. App.) 179 S. W. 908.

The appellant Tom Coleman intervened in the suit, praying “that- the court declare the judgment a nullity and that the court further declare that the claim sued upon by the plaintiff in this suit to be the property of the intervener, and that he have judgment for the proceeds of any claim should there ever be one, or should ib prove to be of any value.” The trial court properly dismissed this plea of intervention.

The judgment is affirmed.


author: LESLIE, Justice.

text:
    PEURIFOY et al. v. HOOD RUBBER PRODUCTS CO.
    No. 1089.
    Court of Civil Appeals of Texas. Eastland.
    April 14, 1933.

      Davidson, Doss & McMahon, of Abilene, •for appellants.
    Kirby, King & Overshiner, of Abilene, for appellee.
   LESLIE, Justice.

The plaintiff, Hood Rubber Products Company, a Delaware corporation, instituted this .suit against J. M. Peurifoy, R. D. Morris, and J. M. Cook and the Peurifoy-Morris Tire Company, a partnership composed of said individuals, for the balance due on certain alleged accounts. The defendants answered by exceptions, verified denial, and set up counterclaims. Trial was before the court without a jury, and at the conclusion thereof judgment was rendered in favor of the plaintiff, and the defendants were denied recovery ■on their cross-action. The defendants appeal. The court has filed findings of fact and conclusions of law.

The appeal is predicated upon three propositions of law, which will be considered in their order.

The first, is to the effect that a foreign corporation plaintiff, when duly challenged, must not only plead but prove its permit to do business in the state as a condition precedent to its right to maintain the suit, and that, where it fails to do so, as in this case, a judgment of dismissal alone is authorized. The pleadings are sufficient, in fact, comprehensive on the point. On the facts the record presents two reasons why ’this contention must be overruled: First, when testimony on the point was being presented by the plaintiff, the defendants’ attorney stated,- “We will agree to this, that the Hood Rubber Products Company, Inc., a Delaware corporation, was granted a permit to do business in Texas,” to which, by acquiescence of said attorney, the plaintiff’s attorney added, “August 31st, 1929, and franchise tax paid to May 1st, 1932.” Second, the plaintiff acquired the subject-matter of the suit from a Massachusetts corporation, plaintiff’s predecessor, which, according to the undisputed testimony, had a permit in Texas at the time the business transactions wore had which are involved in this suit, and the plaintiff therefore had a right, in any event, to litigate its lawfully acquired property rights. Security Co. v. Panhandle Nat. Bank, 93 Tex. 575, 57 S. W. 22; Kingman Tex. Implement Co. v. Borders (Tex. Civ. App.) 156 S. W. 614; Lee v. Galena-Signal Oil Co. (Tex. Civ. App.) 8 S.W.(2d) 1051; 11 Tex. Jur. p. 174, § 498; Farm & Home Savings & Loan Ass’n v. Muhl (Tex. Civ. App.) 37 S. W.(2d) 316, par. 11-15.

The court’s first finding of fact that the plaintiff had-such permit is warranted.

The second proposition is that, “A claim for money owing does not come within the rule of a ‘stated account’ until there is assent by the party owing as to the correctness of the amount claimed to be due, and a further agreement as to the time of payment.” The petition declared first on a stated account and in the alternative on an open account. Fundamentally the suit was based on a written agreement whereby the plaintiff sold defendants automobile tires, tubes, etc., and the indebtedness sued on originated in the sale of such products to the defendants under the terms of the agreement. Pursuant to such agreement, numerous sales and shipments of such products were made to the defendants, and statements and invoices thereof rendered promptly to the defendants. The basic written agreement stipulated that the defendants were to make payments for same on the 10th of each month. The statements rendered showed each item of the account, price of same,' balance due, and a demand for payment. The court has, upon sufficient testimony, found that such statements and invoices were retained without objections an unreasonable- length of time. The testimony supports the conclusion of the trial court that the defendants assented to the correctness of the accounts as submitted. Express or implied assent is sufficient. Scofield v. Lilienthal (Tex. Civ. App.) 268 S. W. 1047. Where the parties agree upon the amount due, or where their conduct justifies the inference that they have so agreed, the law implies a promise to pay such amount. 1 C. .T. p. 697, § 301. Hence the judgment being generally supported by the testimony this court is not authorized to disturb the same. Further, if we be mistaken in the conclusion that the evidence warrants the judgment upon the theory of stated account, it occurs to us that the judgment is correct under the evidence and pleadings on the theory of open account. Evidence of the former will support a judgment on the latter. Theus v. Jipson, 3 Willson; Civ. Cas. Ct. App. § 189;. Morrison v. Few, 3 Willson, Civ. Cas. Ct. App. § 384.

The chief attack on the plaintiff’s judgment is that certain claims made by them in their cross-action against the plaintiff prevented the account sued on becoming a stated account in that such claims themselves conclusively evidence a lack of agreement on either the amount or the date of payment, which elements are esséntial to constitute an account stated. The claims forming the basis of the defendants’ cross-action were for (1) alleged commissions on goods shipped from plaintiff’s Dallas warehouse into the agency territory assigned to defendants; and (2) for rent on the Abilene warehouse maintained by defendants. Both of these claims grew out of a “warehouse agreement” between the parties, and the same was independent of the “tire sales agreement” first above mentioned as constituting the basis of the sales and the indebtedness on which the plaintiffs’ suit is based. These two independent claims urged by way of set-off and originating in the warehouse agreement did not prevent plaintiff’s account becoming a stated account. Plaintiff’s suit was for balances on accounts after allowance of due credits. The accuracy of the same seems not to be questioned by the defendants, except they make claims for the alleged offsets. This would not prevent the accounts becoming stated.

In 1 C. J. p. 683, under the subject of partial adjustment of accounts, it is said: “It is not necessary, however, that the adjustment should cover all dealings between the parties. Thus an account rendered by one party to the other may become a stated account by the admission of the latter that it is correct, although he may have an independent set-off or counter-claim which is not taken into consideration.”

Further, defendants in their brief state: “These agreements covered warehousing transactions only, and had nothing to do with the matters at issue which arose from the relations of the defendants with plaintiff as dealers in and retailers of tires and tubes.”

This extract from plaintiff’s brief is in harmony with our interpretation of the suit that the matters constituting a counterclaim are distinct from and independent of the subject-matter of the account.

The case of Segelke Mfg. Oo. v. Vincent, 135 Wis. 237, 115 N. W. 806, 807, is in point. In disposing of a like contention, after citing Pierce v. Delamater, 3 How. Prac. (N. Y.) 162, it is said: “The case last cited is directly in point. There the defendant admitted the correctness of an account that was shown him, but at the same time said he had an offset. The court held that there was sufficient admission to establish the correctness of the plaintiff’s claim, and the defendant was bound to prove a set-off on the trial. To the same effect is White v. Whiting, 8 Daly (N. Y.) 23. Nor does the existence of an alleged counterclaim prevent the admitted statement from becoming an account stated. Filer v. Peebles, 8 N. H. 226; Ware v. Manning, 86 Ala. 238, 5 So. 682. Wharton v. Anderson, 28 Minn. 301, 9 N. W. 860, gives a clear statement of the effect to be given to an account stated.”

From Ware v. Manning, 86 Ala. 238, 5 So. 682, we take the following: “Where an account against a party is stated, showing the amount due, and is acknowledged to be correct, it is sufficient to constitute an account stated, though such party has counter-claims which are not deducted.” See, also, Harrison v. Birrell, 58 Or. 410, 115 P. 141; Crawford v. Hutchinson, 38 Or. 578, 65 P. 84.

Further, the trial court has found the cross-"action to be without support in the evidence, and the defendant makes no complaint against the judgment on that ground. No proposition here briefed specifically questions either the sufficiency of the evidence or the pleadings to sustain the judgment relating to the cross-action.

Plaintiff’s judgment rests upon testimony adduced upon the trial and to the effect that the defendants had admitted plaintiff’s account to be correct. In 1 O. J. p. 662, § 187, it is said: “An account may be supported without proof as to the particular items by proving that defendant had admitted the account to be correct. In other words, evidence of a stated account is sufficient proof to support plaintiff’s cause of action on open account and therefore it may be supported by an implied, as well as an express, admission, as by tbe assent which is presumed from acquiescence in an account rendered.”

The text cites Theus v. Jipson, 3 Willson, Civ. Cas. Ct. App. § 189, to which we add Lonsdale v. Schlegel, 68 Okl. 31, 171 P. 330.

The court has here found such acquiescence to be for an unreasonable length of time.

In 1 C. J. p. 691, § 276, it is said: ‘Where an account is rendered by one person to another, the retention of the same by the latter beyond a reasonable time without objection is evidence of his assent to the correctness of the account, and, accordingly, is evidence of an account stated.”

A careful consideration of the record discloses that the plaintiff, in accordance with the trial court’s findings, made a prima facie showing of defendants’ obligation to pay the alleged indebtedness or account, and that the defendants failed to discharge the burden of proof thereby cast upon them to show any incorrectness in the balance of the account claimed. Dodson v. Watson, 110 Tex. 355, 220 S. W. 771, 11 A. L. R. 583; 1 Tex. Jur. p. 381, § 87. Proposition 2 is overruled.

Therefore the third proposition, to the effect that “no liability on the defendant under an ‘account stated’ was created in this cause by estoppel,” becomes immaterial. A correct judgment rests on other grounds.

For the reasons assigned, the judgment of the trial court is affirmed.


author: SMITH, Justice. .

text:
    MOODY-SEAGRAVES RANCH, Inc., et al. v. BROWN et al.
    No. 11281.
    Court of Civil Appeals of Texas. San Antonio.
    April 12, 1933.
    Coke R. Stevenson, of Junction, and McDonald & Wayman, of Galveston, for plaintiffs in error.
    H. W. Green, of San Antonio, R. L. Cole, of Houston, Robt. H. Rice, of San Antonio, Ira J. Allc-n, Phil D. Woodruff, W. P. Hamblen, Ewing Werlein, and Holland Bradley, all of Houston, and Katherine Stephenson, of Junction, for defendants in error.
   SMITH, Justice. .

The judgment complained of was rendered August 18, 1932, and no motion for new trial was filed. Petition for writ of error and bond therein were filed on September 2S, 1932.

Waivers of service of citation in error were executed on various days in September and October, 1932; under the purported signatures of all the numerous defendants in error, by their respective attorneys of record, the last such waiver having been executed on October 24, 1932. A waiver purportedly in behalf of defendants in error W. O. 'Rigs-by and wife, Mimmie S. Rigsby, “by Ohas. A. Schreiner, Jr.,” was dated September 26, 1932. Subsequently, on January 9, 1933, the Rigsbys in person executed a like waiver, which was filed among the papers in the case on January 11th. Two days later, on January 13th, defendants in error filed their motion to affirm on certificate upon the contentions (1) that the sixty days allowed plaintiffs in error in which to file the record in this court must be computed from the date of the “perfection of the writ of error,” and (2) that writ of error was “perfected” by the filing of petition and bond for writ of error.

We overrule the latter contention of defendants in error, that the writ was perfected by the filing of the petition and bond, and hold that under article 1839, as amended (Vernon’s Ann. Oiv. St. art. 1839), writ of error is deemed to be perfected, within the contemplation of that statute, not by the filing of petition and bond, but by service or waiver of citation in error. Article 1839, as amended, reads as follows: “In * * * Writ of Error the * * * plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the ** * perfection of the Writ of Error. * * * ”

The procedure in appeals and writs of error is prescribed in detail in chapter 12, art. 2249 et seq., R. S. 1925. In those articles provision is made for filing .petition and bond in error, and for service of citation in error, and those provisions are followed by article 2267, as follows: “When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have Seen complied with, the appeal or writ of error, as the case may he, shaM he held to he perfected.” (Italics ours.)

That language is too plain to warrant speculation. It provides in simple terms that-writ of error shall be held to-be perfected when, and only when, the bond for costs “has been filed and the previous requirements of this chapter [filing petition and supersedeas bond, and issuance and service of citation] have been complied with.”

It is settled that under this provision writ of error is not perfected, and the appellate court does not acquire jurisdiction, even to affirm on certificate, until all defendants have been served. 3 Tex. Jur. § 253; Loftin v. Nalley, 28 Tex. 127; McGuire v. Newbill, 54 Tex. 317; Vineyard v. McCombs, 100 Tex. 318, 99 S. W. 544; Felton v. Seeligson (Tex. Com. App.) 265 S. W. 140.

And so is it equally well settled that the time allowed for filing the record in the appellate courts in writ of error cases must be computed from the date of service or waiver of citation in error, without regard to the date of filing petition or bond in error. 3 Tex. Jur. § 189; Felton v. Seeligson, supra; J. M. Radford Gro. Co. v. Lawson (Tex. Civ. App.) 53 S.W.(2d) 843.

So, defendants in error’s right to affirm on certificate must be determined according to the time of the completion of service or waiver thereof. The last waiver of service (other than that executed in person by the Rigsbys on January 9, 1933) was executed on October 24, 1932, and .plaintiffs in error were required under the plain terms of article 1S39, as amended, to file the record in this court, or motion for extension of time therefor, within sixty days from said October 24, 1932, unless such time may be properly computed from the time of the execution of the substituted waiver executed by the Rigsbys in person on January 9, 1933.

We have concluded that plaintiffs in error were justified in postponing perfection of the writ of error until they procured personal service upon the Rigsbys or their attorneys of record, or properly authorized waiver thereof.

It appears from the record that the Rigsbys were absent from the state when the application for writ of error was filed, and did not return for some time thereafter; that in their absence, and without the procurement of plaintiff's in error, waiver of service in behalf of the Rigsbys was executed by a third party other than an attorney of record, to wit, L. A. Schreiner, Jr., who had no apparent authority therefor; that upon their return to the state the 'Rigsbys in person, upon the request of plaintiffs in error, executed a proper waiver, thus legally perfecting the, writ of error. Plaintiffs in error thereafter, on January 25, 1933, tendered the record in the case to this court, with motion for leave to file, this court in the meantime having granted defendants in error’s motion to affirm on certificate. The whole transaction is now before this court on plaintiffs in error’s motion for rehearing and for leave to file.

We have concluded that the motion should be granted. The waiver executed by Schreiner in behalf of the Rigsbys was not binding upon them, since he was not their attorney, of record or otherwise, and had no apparent authority to act for them. The fact, but just now disclosed, that Schreiner, who is a brother of Mrs. Rigsby, was in fact (although not expressly) authorized to act for them, was not apparent of-record or known to plaintiffs in error, and is therefore unimportant in this-inquiry.

Plaintiffs in error were justified in postponing the filing of the record in this court until they secured legal service upon the Rigsbys, for, had they proceeded upon the assumption that the waiver executed by Schreiner for the Rigsbys was sufficient, and had completed the writ of error upon that assumption, the same would have been subject to dismissal had that waiver been repudiated by the Rigsbys, who undoubtedly could have repudiated it, had they been so minded. Plaintiffs in error were therefore justified in waiting for a legal waiver from the Rigsbys before proceeding with the writ. The effect of these conclusions is to hold that the writ of error was not perfected until January 9, 1933.

Plaintiffs in error therefore were under the duty of filing the record in this court, or in the alternative a motion to enlarge the time therefor, within sixty days of said date, January 9, 1933. They did tender said record for filing within said period, to wit, on January 25,1933, and the same is hereby ordered filed.

Plaintiffs in error’s motion for rehearing and for leave to file record will be granted, the order to affirm on certificate will be set aside, and the motion therefor overruled, and the transcripts of the record and of the evidence tendered by plaintiffs in error will be filed as of January 25, 1933.


author: ALEXANDER, Justice.

text:
    BAADE v. CITY OF WACO.
    No. 1369.
    Court of Civil Appeals of Texas. Waco.
    April 20, 1933.
    Sanford & Sanford, of Waco, for plaintiff in error.
    Hubert D. Dunham, of Waco, for defendant in error.
   ALEXANDER, Justice.

This action was brought by the city of Waco against Mrs. Mary Baade, a widow, to recover a personal judgment, with foreclosure of a paving assessment lien on certain real property in the city of Waco. Judgment was entered for the plaintiff by default for its debt, with foreclosure of lien as prayed. The defendant sued out a writ of error to this- court.

The sole question to -be determined is whether or not the plaintiff’s petition was subject to a general demurrer. The petition alleged that the plaintiff was a municipal corporation, duly incorporated under the laws of Texas, and that the defendant owned the property in question abutting on Jefferson avenue in said city; that on December 16, 1930, the city entered into a contract with J. E. Johnson Construction Company for the paving of Jefferson avenue in sajd city, and particularly that part on which said property abutted; that as authorized by the laws of the state of Texas and the charter of said city, one-third of the cost of laying the pavement and gutter and all of the cost of constructing the curb was to be paid by the abutting property owners; that the contract provided that the owner of such property should be personally liable for said proportionate share of the cost of such improvements and a lien therefor assessed against said property. The petition alleged the amount of the cost of such improvements. It further alleged that said paving was laid - and gutter and curb constructed in strict compliance with the terms of said contract and was accepted by the city, and that on June 16, 1931, the city of Waco, through its board of commissioners, passed an ordinance making the cost of said improvements a personal obligation against the owner of said property and assessing a lien therefor against the property, and that said paving assessment had been duly assigned to the city of Waco by said contractor. The petition prayed for a personal judgment for the amount of said paving certificate and for foreclosure of a lien on the property.

The general and well-established rule is that a petition to foreclose or otherwise enforce an assessment or paving lien for public improvements claimed to have been created without the consent of the property owner, by a compliance with the provisions of the statutes and the city charter, must allege, at least in a general way, the existence of all of the facts and the taking of all of the steps necessary to the creation of such lien, as provided in the statutes and city charter. 23 Tex. Jur. 482 ; 44 C. J. 846; Blair v. City of Houston (Tex. Civ. App.) 252 S. W. 882; Wooten v. Texas Bitulithic Co. (Tex. Civ. App.) 196 S. W. 601; Power v. City of Breckenridge (Tex. Civ. App.) 290 S. W. 872.

The city of Waco operates under the “home rule” bill. Its charter provides for a petition by those owning property abutting on the street sought to be improved, and for notice to property owners and a hearing as to benefits in substantially the same manner as is provided in Revised Statutes 1925, article 1093, and for numerous other preliminary steps as a prerequisite to the fixing of a paving lien. The petition does not attempt to allege compliance with any of such provisions. The city concedes that it did not allege specifically that all preliminary steps necessary to the creation of such lien had been complied with, but calls attention to the fact that it did allege that the board of commissioners accepted the improvements when completed and passed an ordinance making t-he costs of said improvements a personal obligation against the owner of said property and assessing a lien therefor against said property, and it here asserts the generdl proposition as laid down in 19 R. C. L. 80S, that all presumptions are in favor of the validity of an ordinance relating to matters within the legislative power of a municipality and that when the validity of an ordinance depends upon the existence of one or more facts at the time of its enactment, the existence, and not the nonexistence, of such facts will be presumed. It contends that since it alleged that the commissioners enacted the ordinance assessing the lien, this was equivalent to an allegation that all prior necessary steps had been complied with. It is probably true that where a city council, in the exercise of its broad, inherent powers to enact legislation generally for the public welfare, passes an ordinance, the courts, in an action to enforce such ordinance, will, in support of the evidence, presume the existence of the facts making such ordinance necessary for the protection of the public and justifying the exercise of such discretion by the council, until the contrary is shown; but we do not think this presumption can be indulged to supply an omission from the pleadings in an action to enforce a right claimed to have been created by a special proceeding of this kind where the council has very limited and not general powers. Here the performance of certain preliminary acts was a condition precedent to the enactment of such ordinance and without such acts the ordinance was void. Connor v. City of Paris, 87 Tex. 32, 27 S. W. 88, 92; Ardrey v. City of Dallas, 13 Tex. Civ. App. 442, 35 S. W. 726. The fixing of an involuntary lien upon private property for public improvements is a harsh proceeding requiring a strict compliance with the statutes. The passing of the ordinance assessing the lien is only one of the many steps required to be taken by the city council. We cannot, in the absence of legislative authority, presume in support of the pleadings that because the council took one of the necessary steps to fix the lien, it necessarily took all other required steps. Even in those cases where the recitations in the paving certificate are made prima facie evidence of the regularity of the proceedings, it has been held that it is not sufficient to merely allege that the council issued a certificate containing such recitations. The petition must go further and allege that all preliminary steps have been complied with. Wooten v. Texas Bitulithic Co., supra.

In the case of Wood v. City of Galveston, 76 Tex. 126, 13 S. W. 227, the court had before it a case iu which the city charter required that before a paving lien could be fixed on abutting property for local improvements, the city engineer should make an estimate of the probable cost of such improvements and the city council should, by a two-thirds vote, authorize such improvements. In the petition to foreclose such a lien, it was allegefd that the city council adopted a resolution authorizing such improvements, but it was not alleged that the engineer had previously estimated the probable cost of the improvements nor that such resolution had been adopted by a two-thirds vote of the council. The court held that the petition was subject to a general demurrer and would not support a judgment by default.

We are of the opinion that the petition in this case is insufficient.

The judgment of the trial court is reversed, arid the cause remanded for a new trial.


author: FLY, Chief Justice.

text:
    KAUFFMANN v. HAHN.
    No. 9049.
    Court of Civil Appeals of Texas. San Antonio.
    April 5, 1933.
    Rehearing Denied May 3, 1933.
    Putney & Green, of Victoria, for appellant.
    'J. W. Ragsdale and Edw. C. Thomas, both of Victoria, for appellee.
   FLY, Chief Justice.

This suit was instituted by appellee against Elinora Kauffmann, individually and as survivor of the community estate of E. C. Kauff-mann, deceased, and herself, on two promissory notes, one for $3,500 and the other for $175, each secured by liens on the same real property, situated in the city of Victoria, county of Victoria, Tex.

There is really no statement of facts, but a paper 'on which are references to certain exhibits is attached to pleadings in the case. The paper is signed by the attorneys and approved by the trial judge in language as follows: “I approve the above as the statement of facts in the above cause.” There was not one word of oral testimony in the record. The note for $3,500 is as follows:

“ $3500.00 Victoria, Texas, Feb. 21, 1927.
“On or before three years after date, for value received, I, individually and as surviv- or of the community estate of myself and E. C. Kauffmann, my deceased. husband, promise to pay. to A. C. Hahn, or order, at Victoria, in Victoria County, Texas, Three Thousand Five Hundred Dollars, with interest thereon from date until paid at the rate of seven per centum per annum, interest payable annually.
“All past due interest hereon shall bear interest from the maturity thereof until paid at the same rate as the principal.
“This note is secured by a deed of trust to J. T. Linebaugh, trustee, on Lot No. 3, in Block No. 169, in- the City of Victoria, in no-toria County, Texas.
“Should default be made in the payment of any annual installment of interest on this note when due, then this note may, at the election of the holder, be declared due and payable.
“I hereby bind myself to insure and keep insured at my own expense the dwelling house situated on the above described land against loss by Are in a sum not less than Four Thousand Dollars, with loss payable to the holder of this note, as his interest may appear and by whom the policies shall be kept, and should I fail to effect and maintain said insurance, then this note may, at the election of the holder, be declared due and payable.
“And it is hereby specially agreed that if this note is placed in the hands of an attorney for collection, is collected by suit or through the probate court, then I agree and promise to pay ten per centum additional on the principal and interest then owing on this note, as attorney’s fees.
“The consideration expressed in this note represents community debts owing by me and the said E. C. Kauffmann, deceased, and by the community estate of myself and the said E. C. Kauffmann, deceased, in this:
“ $1000.00 thereof is represented by the balance due on a vendor’s lien, deed of trust and judgment, all for purchase money, as shown by the vendor’s lien reserved in the deed from T. D. Wood to E. C. Kauffmann, recorded in Vol. 59, page 352, of the deed records of Victoria County, Texas, by the judgment of foreclosure, recorded in Vol. 16, page 473, of the Civil Minutes of the District Court of Victoria County, Texas, by the deed of trust from E. C. Kauffmann to John W. Thames, recorded in Vol. 80, page 438, of the deed of trust records of Victoria County, Texas, by the extension thereof recorded in Vol. 93, page 564, of the deed records of Victoria County, Texas, and the transfer of said note and lien by the said E. C. Kauffmann to A. C. Hahn, and there is owing on said extended note and judgment the sum of $1000.00, which was a community debt of myself and the said E. O. Kauffmann, and this note to that extent is given in extension of said $1,000.00 and said vendor’s lien, judgment lien and deed of trust lien is here extended to secure so much of this note, and the sum of $1496.04 of this note is given to pay off state, county, district and school taxes, and $740.23 is given to pay off City taxes on said property, such amounts being now owing thereon, and being valid liens and claims on said property, and most of same being a valid personal obligation against the said E. O. Kauffmann and the latter accruing taxes being a personal obligation against me, and all of said taxes being community debts owing by the community estate of myself and the said E. O. Kauffmann, deceased, and so much of this note as above set forth is given for money advanced to pay off said taxes, tax lien and such community obligation to pay same, only on the express agreement and understanding that, suits being about to be brought to foreclose said tax liens and sell said property, which is community - property of me and said E. O. Kauffmann, deceased, and the community estate aforesaid and I individually being unable to pay same, the said A. O. Hahn or other holder of this note, should and would in all things be subrogated to all liens of the State, County, districts and City, I having requested the said A. C. Hahn to advance said money to pay said taxes and prevent foreclosure of said liens and sale of said property and loss of said property to said community estate, and the said A. C. Hahn, shall be and is hereby in all- things subrogated to all of such tax liens of the State, County, districts' and City.
“[Signed] Elinora M. Kauffmann, Individually and as survivor of the community estate of E. C. Kauffmann, deceased, and myself.”

Said note has the following indorsement on the back thereof: “March 1, 1927. This note is credited with the sum of $105.99.”

The second note is for $175 and a plain note of hand, dated February 24, 1928. Each of the notes was secured by a lien on lot 3, block 169, city of Victoria.

The briefs have ignored all rules, past or present, on the subject of briefing, and in addition difficulty was encountered in reading the pale, indistinct typewritten copies. We do not attempt to follow the briefs in their presentation, but we gain the impression that appellant contends that the debts indicated in the note herein copied were barred by limitation and that the surviving widow could not by contract revive such barred debts. The notes were original obligations of appellant to evidence sums of money borrowed from appellee to be used in the payment of community debts; but even if it be admitted that the instruments were given to revive and secure debts already barred, appellant, as survivor, representing the community estate, had full power and authority to revive such debts and give liens to secure them. This is held by the Supreme Court in the case of Stone v. Jackson, 109 Tex. 385, 210 S. W. 953, 955, wherein other cases are reviewed sustaining the decision. It is also insisted that the survivor, not legally qualified, could not act in settling debts due -by the community. The Supreme Court in the cited case is directly opposed to the contention. The court said: “It is well settled that all the power to sell property belonging to the community estate, to pay community claims, which may be exercised by the regularly qualified survivor vests in the survivor who fails to qualify under our statutes; for failure to qualify in no wise restricts or limits a survivor’s power to apply community assets to the discharge of community debts. Dawson v. Holt, 44 Tex. 178; Sanger Bros. v. Heirs of Moody, 60 Tex. 98; Pierce v. Gibson, 108 Tex. 66, 184 S. W. 502 [1 A. L. R. 1675].”

Although children figured in the case cited, there is no proof that there were any children interested in the estate which appellant represented, and it must be presumed that there were no children, and that the surviving wife owned the whole estate.

The contract expressed in the note gave full authority to appellee to -pay off the taxes and she would be subrogated to all rights under the liens.

There is no merit whatever in this appeal, and all the contentions of appellant are overruled.

The judgment is aflirmed.


author: MARTIN, Justice.

text:
    HARDEN v. COFFEE et al.
    No. 3978.
    Court of Civil Appeals of Texas. Amarillo.
    March 8, 1933.
    Rehearing Denied April 19, 1933.

      S. E. Fish, of Amarillo, for appellant.
    Norman Coffee, of Stinnett, for appellees.
   MARTIN, Justice.

The only law question presented by this appeal is whether the abstract furnished by appellant to appellee showed a merchantable title to certain property in East Amarillo.

Appellee, in writing, raised, in substance, the following objections thereto: (1) An unreleased trust deed appeared therein dated April 30, 1894, to A. H. Woods, trustee, given to secure a note for $1,500 due 90 days after date, executed by J. A. Holland, payable to the order of J. W. Link, and covering the entire east half of section No. 125, block 2, of which the property in controversy was a part; (2) that H. B. Sanborn was shown to have acquired this property and owned same at his death. Thereafter a judgment in heir-ship was rendered by the district court of Potter county, and was shown in the abstract, which judgment purported to establish the fact that Ellen M. Sanborn, wife of H. B. Sanborn, was his only heir.

Appellant deraigned title through Ellen M. Sanborn. The above judgment is here attacked because: (a) The abstract did not show that an attorney was appointed to represent the unknown heirs who were named as defendants in said proceeding to establish heirship; (b) there is no showing , that a statement of facts was filed in said cause as required by law. .

Appellant declined' to remedy the defects pointed out, and appellee brought suit for the recovery of purchase money already paid on her contract. The trial court rendered judgment for appellee, the effect of which was to hold that the title tendered was not merchantable because of the defects herein-before mentioned.

The deed of trust is set out in the statement of facts. It is from J. A. Holland to A. H. Wood, trustee, -for J. A. Link, beneficiary, is dated April 30, 1894, and was filed for record the same day, covers the half section of land already described, and recites further:

“This conveyance, however, is intended as a trust for the better securing of J. W. Link of the County of Potter and State aforesaid, in the payment of one certain promissory note made by me, the said J. A. Holland, dated the 30th day of April, 1894, payable to the order of J. W. Link, and in the sum of Fifteen Hundred Dollars, and providing for 10% attorneys fees in ease same is placed in attorneys hands for collection or suit is brought on same, and bearing interest at the rate of 10% per cent, per annum from maturity upon the payment of which said promissory note, according to its face and tenor, being well and truly made then in such case this conveyance is to become null and of no further force or effect.
“[Signed] J. A. Holland.”

This trust deed did not contain any power of sale to the trustee. There was no contract entered into between the parties for the enforcement of payment of the debt by the ordinary summary proceeding of sale by the trustee. It is therefore distinguishable from the instrument before the court in Womble v. Shirley (Tex. Civ. App.) 193 S. W. 719, and cases of like character. The holder of-this note had a cause of action controlled by the four-year statute of limitation which appears to have been a part of our statutory law since the days of the Republic.

Article 5521, R. S., is as follows: “Purchase money or mortgage lien notes relating to real estate shall conclusively be presumed to have been paid after four years from the date of maturity of such notes unless extended as provided by law.”

This particular note does not appear to have been extended, nor is there any evidence here that any claim has been asserted under it since its execution. The note on its face is more than 35 years past due. Of a like statute it has been said: “Now, it is apparent this is more than an ordinary limitation statute. * * * Rather it establishes a definite rule of evidence, the effect of which is to make final and conclusive the presumption of payment by reason of 'lapse of time.” McKinney v. Freestone County (Tex. Com. App.) 291 S. W. 529, 532.

A conclusive presumption of payment is certainly as effective as a release could be.

This makes it unnecessary to pass upon the contention of appellant that there is a presumption of payment of this note due to the lapse of time independent of statute. See 48 C. J. 691, 693, 698; 39 Cyc. 1491 (2); Foot v. Silliman, 77 Tex. 268, 13 S. W. 1032. See, also, McKinney v. Freestone County, supra.

This case seems to have been presented in the lower court and here upon the assumption that the instrument in question contained a power ,of sale. Since it did not, much discussion of the effects of the statutes of 1905 and 1913 upon deeds of trust executed prior to 1905 is eliminated.

Regarding the judgment of heirship, without consuming space in reproducing said judgment in its entirety, we make note of the fact that it established:

“That the said H. B. Sanborn left surviving him his wife, the plaintiff herein, to whom he married on the 20th day of February, 1868, but no child or children, or the descendants of any child or children were left surviving the said IT. B. Sanborn.
“That the said H. B. Sanborn died intestate and no administration has been granted upon his estate within the State of Texas, and none is necessary.
“That the said H. B. Sanborn, at the time of his death, was in possession of, entitled to, and was the owner in fee simple of a community estate with the plaintiff, consisting of the lands and property hereinafter described.
“That the plaintiff who resides in Amarillo, Potter County, Texas, is the heir and only heir at law to the estate and declaring her heirship to said estate.”

In support of such a judgment, if it be necessary, it will be presumed that the law was complied with and that the court did its duty. We are of the opinion that the mere absence of a showing in the abstract of the appointment of an attorney for unknown heirs and the filing of a statement of facts would not justify us in holding this title bad, particularly where there were not any unknown heirs and the facts established by the evidence are set out in the judgment, among whicli is the sole heirship of Sanborn’s wife.

It follows that we believe the abstra'ct furnished, as against the objections noted, showed a marketable title. We quote: “The well-established rule that a vendee contracting for a good title is entitled to demand and receive a marketable title, has been adopted by the courts to protect him from such defects only as would cause a prudent and cautious purchaser to entertain a just apprehension of future trouble. It was not adopted to arm and equip the vendee with a sword of defense.” Summy v. Ramsey, 53 Wash. 93, 96, 101 P. 506, 507. See, also, 39 Cyc. 1454.

Nearly 40 years have gone by since the debt described in the above trust deed became due. It covered what is now a part of a populous city. No assertion of claim is shown to have arisen since said time. H. B. Sanborn was a resident of Amarillo, as shown by the instruments exhibited in the record. In our opinion, a prudent person, willing and anxious to perform his contract, would have no just cause for apprehending future trouble, either with the holder of this note or with any heir of H. ¾. Sanborn. This is all the law requires. Titles, in the very nature of things, cannot be made mathematically perfect. We can hardly imagine a title that it is possible to put together that would completely escape a fine-tooth combing for objections which might be given it by highly technical attorneys.

The evidence being uncontradicted, the judgment of the trial court will be reversed and here rendered for the appellant.


author: PLY, Chief Justice.

text:
    WILLIAMS v. HAVERLAH.
    No. 9033.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1933.
    Rehearing Denied April 26, 1933.

      Mason Maney, of Pearsall, and E. E. Smith, of Jourdanton, for appellant.
    Cunningham, Moursund, Johnson, Eogers & Slatton and C. S. Slatton, all of San Antonio, for appellee.
   PLY, Chief Justice.

■This is a suit instituted by appellant against appellee for two narrow strips of land out of the north side of tracts 29 and 32, respectively, in Frio county, granted to the International-Great Northern Eailroad Company. The suit is really a boundary suit as to lines between lands belonging to the parties. The cause was tried without a jury and judgment rendered that appellant take nothing by ⅛⅛ suit. The court upon request filed his findings of fact and conclusions of law.

The findings of fact of the trial judge are supported by the statement of facts and are approved and adopted as the conclusions of fact of this court, as follows:

“Prank E. Williams acquired tracts Nos. 7, 8, 9, 10, 11, and 12 of the Eichland Farms subdivision, containing 663 acres of land, more or less, on the 18th day of May, 1926, according to the map and plat of said Eich-land Farms subdivision, which is of record in the deed records of Zavalla county and Frio county, Tex.
“The subdivision of Eichland Farms was made by T. W. Masterson on the 5th day' of January, 1912, and a map and plat of said subdivision was filed for record in Frio and Zavalla counties immediately thereafter’, and was introduced in evidence by plaintiff.
“Defendant L. W. Haverlah acquired title on the 9th day of July, 1926, to tracts Nos. 1, 2, 3, 4, 5, and 6, containing 816.1 acres of land, more or less, of the Eichland Farms subdivision, according -to map and plat. of said subdivision recorded in the deed records of Frio and Zavalla counties, Tex.
“During the month of January, 1928, defendant L. W. Haverlah employed Mr. Will Hickey, county surveyor of Frio county, Tex., and the county in which his land was located, to survey land owned by the defendant and to establish the boundary between the land owned by plaintiff and defendant, and which survey was made about said date, and said boundary was established by said surveyor where it is now located according to the contentions of defendant L. W. Haver-lah.
“Shortly after such survey was made, a controversy arose as to the true location of said boundary, by and between plaintiff and defendant, and thereupon defendant L. W. Haverlah employed Mr. A. Conrads, county surveyor of Karnes county, Tex., to make a resurvey and establish said boundary between the land owned by defendant and the land owned by plaintiff, which was done by Mr. A. Conrads on or about February 24 and 25, 1928, and said boundary was located on the ground as the same was located by county surveyor of Frio county, Tex., and is the true division line between the land -owned by plaintiff and the land owned by defendant.
“After both surveys were made, defendant L. W. Haverlah, with surveyor, Mr. A. Con-rads, informed plaintiff about the work and the details of the survey and showed plaintiff the result of said survey and the boundaries as located and established by said survey. Plaintiff Frank E. Williams agreed that if he was not satisfied with the survey and the boundaries as established by said survey, he would within two weeks send a surveyor of his own choosing to go over the survey and the boundaries as established. No surveyor was sent by plaintiff to go over the said survey and boundaries within such two weeks, nor prior to the construction of improvements as hereinafter found.
“After two or three months defendant L. W. Haverlah constructed a fence on the boundary lines as established, at considerable expense, and commenced the construction of his residence and other valuable improvements at and near his southern boundary line; the value of said improvements being in excess of $6,000.
“During the construction of said improvements the plaintiff Frank _E. Williams was on the ground where the said improvements were being constructed, and complimented the defendant Haverlah upon the building of such valuable improvements, and did not during the construction thereof claim that such residence and other improvements were being constructed on land owned by him, or protest against the construction thereof.
“All of the valuable improvements constructed by defendant L. W. Haverlah were within 15 to 60 varas of the defendant L. W. Haverlah’s southern boundary line, as was established by Mr. A. Conrads’ survey.
“The boundaries as established gave plaintiff Frank E. Williams 5 acres more land than is called for in his deed.”

The cause of action was in form one of trespass to try title, and the burden of establishing his title rested upon appellant, and his recovery depended upon the strength of his own title and not upon any weakness in the title of appellee. French v. Olive, 67 Tex. 400, 3 S. W. 568; Peterson v. Kilgore, 58 Tex. 88. The evidence offered by appellant did not establish his claim to the land in controversy, and, on the other hand, the testimony tended to show title in appellee. This disposes of the first proposition which as an abstract proposition of law is correct, but which is not supported by the facts.

There is no merit in the second proposition, which is a mere abstraction, with no facts to support it. The evidence clearly established the line which is called the south line of appellee’s land, near which he built his house and other improvements. Appellant was present at one time when the improvements were being erected, and not only did not claim that they were on his land, but commended the improvements being made by appellee. There had been a dispute between the parties as to the location of the west line but none as to the south line. Appellant made no claim to the land on which the improvements were situated until this suit was instituted. This was admitted by appellant. However, independent of the question of es-toppel, appellant failed to show any title to himself in the land for which the action was prosecuted. Appellant admitted that he did not know where appellee’s south line was situated, and yet his title to the land with the improvements depended on the true location. He failed to establish the true location of the south line by any competent testimony. The evidence showed that appellant has in his tract of land 5 acres more than he paid for.

There is no merit in the claims of appellant, and the judgment is affirmed.

MURRAY, J., not sitting.


author: SMITH, Justice.

text:
    SHOEMAKER et al. v. McELWAINE.
    No. 9056.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    H. B. Galbraith, of Brownsville, for appellants.
    Seabury, George & Taylor, of Brownsville, for appellee.
   SMITH, Justice.

This action was brought by W. L. McEl-waine, appellee, against appellants, Benj. H. Shoemaker and associates, who are directors of or landowners in Cameron County Water Improvement District No. 15. The action was to recover damages claimed by appellee on account of alleged malicious prosecution instituted against him by appellants. Ap-pellee recovered judgment, upon a jury verdict, for $5,000 actual and $2,500 exemplary damages. No briefs for appellee are on file in the case.

It appears from the record that ap-pellee was a director in and general manager of said wáter district from the time of its organization in 1929 until late in the fall of 1931, when -he resigned. He was also a stockholder and director and secretary of the Ewing Securities Company. According to statements in .appellants’ brief, which ate assumed to he true in the absence of any brief for appellee, the Ewing Securities Company and its officials, including appellee, entered into various unlawful contracts and business transactions with the water district, •whereby the latter was defrauded. It is further charged that, when these unlawful transactions were disclosed by an audit of the district’s affairs, appellants went before proper officials and filed a number of felony and misdemeanor charges against appellee and his fellow officials of the district, all of whom •had resigned upon the disclosure of their alleged wrongdoings. It is further charged .that none of these complaints or charges have been tried on their merits; that appel-lee procured dismissal of the misdemeanor charges upon purely technical grounds; that the felony charges are still pending; that appellants intend by due process to renew the misdemeanor charges on proper complaints and prosecute them as well as the pending felony charges to a conclusion. •

It was upon all these charges that appel-lee filed this damage suit based upon malicious prosecution. The trial judge appears to have submitted the case without reference to the status, or rather in disregard of the status, of those complaints, and has rendered judgment against appellants for damages as if appellee had been acquitted of the several criminal charges, whereas, appellee has in truth been acquitted of none of them, since none of them have been tried on the merits. Most of them are still pending, although a small part of them have been dismissed upon technical grounds urged by appellee.

It seems that no rule of law is more firmly established or universally applied than the rule that before one may recover in an action for damages for malicious prosecution of criminal charges instituted against him, he must allege and prove not only the fact of the prosecution, but that such prosecution has finally terminated in his favor. 38 C. J. pp. 444, 466, §§ 96, 97, 129; 18 R. C. L. p. 21, § 11; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; McManus v. Wallis, 52 Tex. 534; Glasgow v. Owen, 69 Tex. 168, 6 S. W. 527; Hurlbut v. Boaz, 4 Tex. Civ. App. 371, 23 S. W. 446; American Motors Finance Co. v. Cleckler (Tex. Civ. App.) 28 S.W.(2d) 274. Appellee wholly failed to meet this requirement and therefore was not entitled to recover. On the contrary, the trial court should have directed a verdict for appellants, in response to their timely request therefor.

The judgment is reversed, and judgment will be here rendered that appellee take nothing by reason of his suit.


text:
    WOOD et al. v. B. F. DITTMAR CO.
    No. 9060.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    J. M. Mothershead, of Harlingen, for appellants.
    Leo Brewer, A. N. Moursund, Olind H. Pit-man, and I. M. Wilford, all of San Antonio, and Baseom Cox, of Brownsville, for appel-lee.
   MURRAY, Justice.

C. B. Wood and wife, L. Bernice Wood, were the defendants in cause No. 10677, styled Jefferson Standard Life Insurance Company v. C. B. Wood et ux., filed in the 103d district court of Cameron county, Tex.

On August 26, 1931, C. B. Wood and wife .filed in that cause a cross-action against B. F. Dittmar Company. Upon a plea of mis-joinder, this cross-action was, on the 18th day of January, 1932, dismissed. The order of dismissal contained the following provision:

“It is further ordered that such dismissal is without prejudice to the said C. B. Wood and L. Bernice Wood instituting a new suit against B. F. Dittmar Company upon said cause of action, so alleged in said cross-action, under the provisions of chapter 81, § 1, of the Acts of the Regular Session of the 42d Legislature of Texas, or under any other provisions of the law.”

On January'25, 1932, appellants did file a. new and independent suit based upon the same cause of action set out in the cross-action, which had been dismissed. This new suit was No. 11066, and is the suit in which this appeal is taken.

Chapter 81, § 1. Acts 42nd Legislature, 1931 (Vernon's Ann. Civ. St. art. 5539a), provides as follows: Section 1. “When an action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of. a want of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal or other disposition becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation unless the opposite party shall in abatement show the first filing to have been in intentional disregard of jurisdiction.”

A plea of limitation was sustained in cause No. 11066, and this suit dismissed by the trial court. C. B. Wood and wife, L. Bernice Wood, have appealed, assigning the action of the trial court as error.

At the time of filing of the cross-action in cause No. 10677, limitation had not run against appellants’ cause of action, but at the time of the filing of cause No. 11066 more than two years had elapsed since the accrual of appellants’ cause of action, and same was barred by the two-yeaf statute of limitation, and the plea of limitation should have been sustained, unless the provisions of the original order of dismissal and the provisions of chapter 81, § 1, supra, are sufficient to prevent the running of such statute.

Appellants’ cause of action was not barred by the two-year statute of limitation.

The stipulations in the order of dismissal of the original cross-action, together with the provision of chapter 81, § 1, supra, were sufficient to toll the running of limitation, "and the trial court erred in dismissing appellants’ cause of action herein.

For the error pointed out, the judgment is reversed, and the cause remanded.