author: DOYLE, Justice.

text:
    Patrick E. MATHIS et al., Appellant, v. WACHOVIA BANK AND TRUST COMPANY, N.A. et al., Appellee.
    No. 17327.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 12, 1979.
    Rehearing Denied May 24, 1979. Written Opinion June 21, 1979. Second Motion.

      Marvin Schulman, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellee.
   DOYLE, Justice.

This is an appeal from a judgment granting full faith and credit to a judgment from the State of North Carolina in favor of appellees, Wachovia Bank and Trust Company, N.A. et al. (Bank) in the amount of $30,737.78 plus interest and costs of court.

On February 25,1970, a default judgment was entered in the State of North Carolina against appellants, Patrick E. Mathis and Kathleen Schmidt Mathis (the Mathises), in the amount of $30,737.78, plus interest at the rate of six percent per annum after July 9, 1971.

In 1975 suit was filed by the Bank in Harris County, Texas. The Mathises’ attorney filed an answer for Patrick E. Mathis but not for Kathleen Schmidt Mathis. Consequently, on November 20, 1975, an interlocutory default judgment was entered against Mrs. Mathis by the Harris County court.

The Mathises’ attorney did not reply to this interlocutory judgment until after this case was called for trial in 1978, when he attempted to have the court set aside its judgment and his motion was overruled by the court.

At trial, the court granted full faith and credit to the North Carolina judgment, admitting it into evidence over the objection of the Mathises that said judgment was not properly signed or attested and therefore not entitled to full faith and credit.

Trial was to a jury and after evidence on whether Mr. Mathis had been served in North Carolina, the following one special issue was submitted:

Do you find from a preponderance of the evidence that H. J. JOYNER of the Forsyth County Sheriff’s Office served citation on Defendant Patrick E. Mathis on January 25, 1970?
Answer: “We do” or “We do not”

Mr. Mathis objected to this issue stating there was no evidence or insufficient evidence to support submission of the issue. The court overruled the objection and the jury answered the issue, “We do”.

After the verdict, the Mathises moved for an instructed verdict and for judgment N. O. V., which motions were denied. The Mathises further moved for a new trial which was also overruled resulting in this appeal.

Compositely, the Mathises’ first four points of error complain of the trial court’s errors in admitting to full faith and credit a North Carolina judgment which shows on its face that it is not in compliance with Texas laws, which are applicable since the bank failed to plead and prove North Carolina law in accordance with rule 184a, T.R. C.P.

The general rule is that where a judgment of a state appears to be a valid final and subsisting judgment by a court of general jurisdiction, its introduction makes a prima facie case for the party seeking to enforce it. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975); Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App.—Ft. Worth 1955, writ ref’d); Moody v. First Nat. Bank of Dona Ana County, 530 S.W.2d 879 (Tex.Civ. App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.). However, no such dignity has been extended by Texas courts where default judgments are involved, and “Thus jurisdiction of a court to render a default judgment may not be sustained by the judgment recitals but must appear affirmatively on the face of the record.” Country Clubs, Inc. v. U. Ward, 461 S.W.2d 651 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App.—Texarkana 1976, no writ). We cannot take judicial notice of the laws of another state in the absence of a request to do so. Absent proper proof of such laws, we must presume them to be the same as the laws of Texas touching upon the matter in controversy. Harris v. Harris, 403 S.W.2d 445 (Tex.Civ.App.—Houston 1966, no writ); Rule 184a, T.R.C.P. It is undisputed that the judgment here attacked is a default judgment and that the Bank has not requested, pled nor proved North Carolina law. Therefore we must test the North Carolina judgment by the laws of Texas. The judgment is here set forth as it appears in the record.

THIS CAUSE coming on to be heard before the undersigned Clerk of Superior Court of Forsyth County:
And it appearing to the Court from the duly verified complaint of the plaintiffs that the defendant, Twin City Wholesale Motors, Inc., on or about July 8, 1969, executed a NOTE AND SECURITY AGREEMENT payable in twenty-three monthly installments of $1,400.00 each and one final installment of $1,337.78; that the defendants have defaulted in the payment of their obligation under the contract; and that the sum of $30,737.78, with interest thereon at 6 per cent per annum after July 9, 1971, is now due and payable from the defendant, Twin City Wholesale Motors, Inc., to the plaintiffs.
And it further appearing to the Court that on or about July 8,1968, the individual defendants, Patrick E. Mathis and Kathleen Schmidt Mathis, executed a GUARANTEE guaranteeing prompt payment of the above-mentioned obligation of Twin City Wholesale Motors, Inc.; that demand has been made upon the individual defendants for the payment of the aforesaid amounts due from Twin City Wholesale Motors, Inc.; that upon such demand no payment has been forthcoming; and the plaintiffs are entitled to judgment against the individual defendants under their GUARANTEE for the payment of the sum of $30,737.78 together with interest thereon at 6 per cent per annum after July 9, 1971.
And it further appearing to the Court that pursuant to the provisions of the aforesaid NOTE AND SECURITY AGREEMENT and the provisions of the GUARANTEE that the plaintiffs are entitled to recover the sum of $30,737.78 from all of the defendants.
And it further appearing to the Court that the time for filing answer or other pleading has expired and that an ENTRY OF DEFAULT has been made by the Clerk of Superior Court of Forsyth County; and that the plaintiffs are entitled to a judgment against all of the defendants.
NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that the plaintiffs have and recover of the defendants, Twin City Wholesale Motors, Inc., Patrick E. Mathis, and Kathleen Schmidt Mathis, the sum of $30,-737.78 together with interest thereon at 6 per cent per annum after July 9, 1971. The costs of this action are taxed against the defendants.
The 25th day of February, 1970, 1:51 P.M.
/s/ Frances Storey, Assistant
Clerk of Superior Court

Then follows the certification by A. E. Blackburn, Clerk of the Superior Court, to the effect that the annexed copies of the judgment signed by Frances Storey, Assistant Clerk of the Superior Court, are true copies of the judgment, and also a certification by A. E. Blackburn that “Charles T. Kivett is the (Judge Presiding) over the Superior Court of said 21st Judicial District including Forsyth County (duly elected) and sworn, and that the signature of said Judge to the said certificate is genuine.” Set out in full is the certification of Judge Kivett:

State of North Carolina In The General Court of Justice County of Forsyth Superior Court Division
I Charles T. Kivett, (Resident-Judge) (Judge Presiding) of the 21st Judicial District of North Carolina, embracing the County of Forsyth, do hereby certify that A. E. Blackburn whose name is subscribed to the foregoing and annexed certificate is Clerk of the Superior Court of Forsyth County, North Carolina, (duly elected) (duly appointed) and sworn, and that full faith and credit are due to his/her official acts. I further certify that the seal affixed to said certificate is the seal of said Court and that the exemplification is authenticated in due form and by the proper officer and in his own handwriting, and in such a form and manner that it would be received in any court of this State.
IN TESTIMONY WHEREOF, I have hereunto set my hand at Winston-Salem, Forsyth County, North Carolina, this 3rd day of September, 1971.
SEAL
/s/ Charles Kivett_
Resident Judge or Judge Presiding
21st Judicial District of North Carolina

The opening phrase of the judgment: “THIS CAUSE coming on to be heard before the undersigned Clerk of the Superior Court of Forsyth County:” causes this court some concern. Did the Clerk of the Superior Court actually hear the evidence in such capacity? If so, why was the judgment signed by Frances Storey, Assistant, rather than the Clerk, A. E. Blackburn? The recitations in the body of the judgment seem to indicate that the facts were “appearing to the Court.” Nowhere in the judgment nor in the certifications attached thereto, can this court find any indication that the judgment was rendered, adopted, or signed by Judge Kivett. We are aware of the many authorities holding that the judge’s signature is not necessary to make the judgment a valid and final one. However, we have been unable to find any authority (nor has the Bank cited any) to the effect that the judge is not required to make the rendition or pronouncement of judgment, either oral or written or by memorandum filed with the clerk. Under the provisions of Article 1899, V.A.T.S., a Texas Clerk is required to “ . . . enter all judgments of the court, under direction of the judge . . . ” The Bank argues that “the exemplified judgment from North Carolina is therefore presumed to have been entered in accordance with the statutes and decisions.” This argument fails because this court cannot make such presumption since the Bank has not complied with Rule 184a, supra. The Mathises’ first four points of error are sustained.

The Mathises’ points of error complaining of the interlocutory default judgment against Kathleen Schmidt Mathis are sustained. At the trial of this cause the fact issue was whether Patrick E. Mathis had been properly served with citation in North Carolina. The jury found that he had been properly served. Introduced into evidence was the testimony of the sheriff’s deputy who effected the service of citation and return thereon. Here is the relevant portion of the return.

Both the testimony and the return show that the deputy did not serve Mrs. Mathis personally, but “by leaving a copy with Patrick E. Mathis, her husband.” Whatever the effect of such service was under North Carolina law, this was substituted service under the laws of Texas and not in compliance with Rule 106, T.R.C.P. The North Carolina judgment does not show on its face that Mrs. Mathis had been served personally with citation and under the authority of Jackson v. Randall, supra, we cannot presume that she was. Therefore, the granting of the interlocutory default judgment against Mrs. Mathis was improper.

In view of our ruling on the Mathises’ points of error already considered, we must reverse and remand the case, which has not been fully developed at the trial below. This disposition makes it unnecessary to consider the other points and counterpoints raised by the parties.

The judgment of the trial court is reversed and remanded.

COLEMAN, C. J., and PEDEN, J., sitting.

On Motion for Rehearing

We have decided that the original judgment in this case should be explained in answer to the points of error presented by appellants in their motion for rehearing.

After reviewing the entire record before us, we are not satisfied that the case was fully developed at the trial level. While the North Carolina judgment, when tested by Texas law, was not valid because of the method of service on Kathleen Schmidt Mathis, such judgment met every requirement for valid service of process on Patrick E. Mathis and was so determined by the jury. It was error for the trial court to render the judgment it did under the facts before it.

We have concluded that in the interest of justice this cause should be remanded to the trial court and the cause is so remanded. Morrow v. Shotwell (Tex.1972) 477 S.W.2d 538; Scott v. Liebman (Tex.1966) 404 S.W.2d 288; Still v. Liberty Leasing Co., Inc., 570 S.W.2d 93 (Tex.Civ.App.—Waco 1978, no writ).

The motion for rehearing is overruled.

COLEMAN, C. J., and PEDEN, J., also sitting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold N. COOPER, M. D., Appellant, v. A. E. BOWSER et ux., et al., Appellees.
    No. 16279.
    Court of Civil Appeals of Texas, San Antonio.
    April 25, 1979.

      Charles E. Sweetman, Allison & Plumb, San Antonio, for appellant.
    Lawrence J. Madigan, Richard L. Josephson, Houston, George H. Spencer, Clemens, Spencer, Welmaker & Finck, Joseph L. Seg-rato, San Antonio, for appellees.
   OPINION

PER CURIAM.

Appellant, Harold N. Cooper, appeals from a judgment entered against him on January 25, 1979, in the sum of $240,725.30, with interest from the date of judgment.

Appellant timely filed a supersedeas and cost bond in the principal amount of $241,-225.20. The bond recited that such sum was equal to “at least the amount of the Judgment, interest and cost.” The bond was conditioned “that Appellant shall prosecute his appeal with effect; and in case the Judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its Judgment, sentence or decree and pay all such damages as said Court may award against him.”

Rule 354(a), Tex.R.Civ.P., requires that the cost bond on appeal shall be in the sum of $500.00, unless a different amount is fixed by the court, and that it shall be conditioned that appellant shall prosecute his appeal with effect and “shall pay all the costs which have accrued in the trial court and the cost of the statement of facts and transcript.” In this case, no order to the contrary having been entered, appellant, in order to perfect his appeal, without superseding the judgment, was required to file a bond in the sum of $500.00. In order to suspend execution of the judgment, appellant was required by Rule 364(a) to file a bond “in a sum at least the amount of the judgment, interest and costs . . . .” In this case, it is clear that the bond filed by appellant, in the sum of $241,225.30, is sufficient to cover only the amount of the judgment ($240,725.30) plus $500.00 required in order to perfect the appeal without supersedeas. The supersedeas bond, therefore, is not in an amount which includes at least the amount of the judgment, costs and post judgment interest as required by Rule 364.

It is, of course, impossible for an appellant to determine accurately the amount of post judgment interest which will accrue while he pursues the appellate process. Nevertheless, Rule 364 is clear and unambiguous, and there can be no doubt that the intent is that, pending appeal, the supersedeas bond shall be in an amount sufficient to enable the appellee to collect the amount of the judgment against the appellant and his sureties if such judgment be affirmed. The bond is security, in addition to the personal liability of the appellant, for the payment of the judgment. Satisfaction of the judgment requires payment of both the amount awarded by the judgment plus interest on such amount from the date of judgment. If appellee is to be adequately protected it is necessary that the sureties be liable for the amount of the judgment plus interest, as explicitly required by Rule 364. The amount of the bond in this case is patently insufficient to furnish complete security to appellee for such injury as he may suffer due to delay in enforcement of the judgment.

The supersedeas bond should be in an amount equal to the amount of the judgment plus an estimated amount of interest which will probably accrue during the appeal at the rate prescribed in the judgment, in addition to the amount required to furnish security for costs. See Advisory Opinions of Subcommittee on Interpretation of the Texas Rules of Practice and Procedure in Civil Cases, reprinted in 8 Tex.B.J. 9, 21 (1945). We believe that an acceptable alternative, as applicable to the facts of this case, would be for the amount of the bond to be described as $241,225.30, plus interest at the rate of 9 per cent per annum on the sum of $240,725.30 from the date of the judgment until final disposition of the appeal.

Appellee urges that the bond filed in this case is insufficient as a cost bond because it is not conditioned in the manner required by Rule 354(a), since it imposes no obligation on appellant and his sureties to pay “all the costs which have accrued in the trial court and the cost of the statement of facts and transcript.” We believe the better practice, where a single bond is intended to perform the functions of both a cost bond and a supersedeas bond, is to prepare the instrument in such a way that it incorporates the condition prescribed in Rule 354(a). However, should the ultimate appellate court judgment be against appellant, such judgment would require appellant to pay all costs. Therefore, the assumption by appellant and his surety of the obligation to perform the judgment of the appellate court necessarily includes the obligation to pay such costs as are assessed against appellant by such appellant judgment, and the absence of an express undertaking to pay such costs in the bond is irrelevant.

Appellant is directed to file an amended supersedeas bond complying with the requirements of Rule 364(a) concerning the amount of the supersedeas bond. Unless such amended bond is filed with the Clerk of this Court no later than 5:00 P.M. on Monday, May 21, 1979, the supersedeas bond, insofar as it seeks to suspend enforcement of the judgment, will be stricken. The failure to file such amended bond within such time shall not affect the efficacy of the bond on file as a cost bond.


author: GUITTARD, Chief Justice.

text:
    Clyde Earnest HAMMONDS, Appellant, v. Violet G. HAMMONDS, Appellee.
    No. 19850.
    Court of Civil Appeals of Texas, Dallas.
    May 2, 1979.
    Rehearing Denied June 27, 1979.

      Wilson F. Walters, Denison, for appellant.
    Michael Thompson, Jarvis, Thompson, Grisham, Sanders, Smyre, Hagwood, Emerson & Fry, Denison, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

Appellant Clyde Hammond complains of the division of community property in the divorce decree terminating his marriage to appellee Violet Hammond. We find no abuse of the trial court’s discretion. Accordingly, we affirm.

Appellant’s primary complaint is that the trial court erred in ordering him, on pain of contempt, to sign a contract for the sale of a motel, which was the principal community asset. The evidence shows that the parties lived in the motel and operated it before the suit was filed and that appellant continued to live there and operate it during most of the time the suit was pending. Admittedly, the motel was not subject to division in kind. At a preliminary hearing on May 4, 1978, the court ordered it sold and the proceeds paid into court for division in the final decree. A purchaser was found, and the court ordered the parties to execute a contract of sale unless a better offer could be obtained within twenty days. After expiration of that time, appellant had failed to sign the contract and appellee filed a motion for contempt. At a hearing on the motion on July 6, appellant attempted to show that he had a better offer, but the court concluded that the evidence disclosed a flagrant violation of the previous order. The court found him in contempt and fixed his punishment at a fine of $100 and thirty days in jail, but suspended issuance of the commitment for thirty minutes so that appellant could purge himself of contempt by signing the contract. Under these circumstances he signed the contract, the motel was sold, the proceeds were paid into court, and the final decree directed a division.

Appellant insists that his human rights were violated by the court’s order to sign the contract or go to jail. He argues that he had a lawful right to seek a better price and a right not to sign the contract if he believed that the signing was not in his best interest. He suggests that other alternatives were available to the court, such as a judgment ordering the property to be sold by an officer of the court.

We do not determine whether the court properly held appellant in contempt for failure to comply with the order to sign the contract. The written order is not before us. All we have in this record is the judge’s pronouncement from the bench, which allows the parties twenty days to get a better offer, and failing that, orders appellant to execute the contract.

In view of the contingent nature of the order, we doubt that it would have been sufficiently definite to support a finding of contempt under the standard established by such cases as Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), and Ex parte Trick, 576 S.W.2d 437 (Tex.Civ.App.—San Antonio 1978, no writ). Nevertheless, we do not pass on the propriety of the order because, even if improper, we can grant no relief from it on this appeal. We cannot divest the title of the purchaser, who is not a party to this suit. Indeed, appellant does not ask us to set aside the sale, but argues only that this action by the trial court was so unfair as to demonstrate that the court abused its discretion in dividing the community property. This question, however, depends not on the circumstances of the sale, but on whether the division actually made by the court was so unequal as to show an abuse of discretion. Consequently, we turn our attention to appellant’s other points.

Appellant contends that the court erred in overruling his motion to sell certain other items of property rather than dividing them in kind because no value was established and a sale and division of the proceeds was the only way to insure a fair division. We conclude that this was a matter within the court’s discretion. The court is not required to order a sale of property because of failure to establish its exact value. In order to complain of the division, the burden is on appellant to show inequality in the division as a whole.

Appellant’s other points may be interpreted as raising the issue of inequality. They may be summarized as follows:

(1) Appellee was awarded two cemetery lots, an accompanying insurance policy, and a 1972 Dodge station wagon, whereas appellant was awarded only a 1965 Chevrolet van.

(2) The court ordered him to pay all community debts, including a debt of $1,000 to one Armstrong, but ordered an equal division of certain cash which he had accumulated to pay the Armstrong debt.

(3) The court ordered him. to pay all debts of the motel business before its sale, but allowed him no compensation for his services in operating the motel under the order of the court after the suit was filed.

(4) The court charged him with one-half of appellee’s counsel fee and permitted ap-pellee’s counsel to testify to an increase in the amount of his fee at a subsequent hearing.

After reviewing the record we conclude that no such inequality is shown as to establish an abuse of discretion. Appellant has provided no overall review of the property division, with values of the properties allotted to each, that would establish substantial inequality. Although appellant was allowed no compensation for operating the motel and was required to pay its debts, he also lived there until it was sold, and the court had reason to believe that he had not fully accounted for all the proceeds of the motel operation. After appellee’s counsel gave his original testimony concerning the value of his services, the court had other evidence to support a finding of additional counsel fees, and the court could also have properly concluded that unjustified delay and lack of co-operation by appellant added unnecessarily to the services required of appellee’s counsel. Consequently, appellant has failed to show such an inequality in the division as to require a new trial.

Affirmed.


author: HUMPHREYS, Justice.

text:
    William R. LAWLER, Jr., as Trustee of the Lawler Family Trust, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION et al., Appellees.
    No. 19820.
    Court of Civil Appeals of Texas, Dallas.
    May 3, 1979.
    Rehearing Denied June 27, 1979.

      C. Thomas Wesner, Jr., Wesner, Wylie & Pleasant, Dallas, for appellant.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

George Nicoladze, intervenor below, sued Lomas & Nettleton Financial Corporation and Ken Klaveness, trustee, appellees, to enjoin the foreclosure sale of land under a deed of trust and for damages. From a dissolution of a temporary restraining order, the denial of a permanent injunction prohibiting the foreclosure and a take nothing judgment, this appeal was perfected by William R. Lawler, Jr., who after judgment, replaced Nicoladze not only in this case but also as trustee of the Lawler Family Trusts. We affirm.

The subject land is owned by the Lawler Family Trusts which include several trusts incorporated into one trust instrument. Under this instrument, Nicoladze, its then trustee, executed this deed of trust covering 18.89 acres of land and reciting that it secures a loan made by Lomas & Nettleton to a corporation named “121 Preston Corporation,” owned by Roger Lawler and Horace Ainsworth. Subsequently, this loan was increased. Ainsworth brought the original suit for damages and an injunction restraining Lomas & Nettleton from foreclosure on different collateral securing the 121 Preston Corporation loan and Nicoladze intervened prior to Ainsworth’s non-suit.

Appellant attacks the trial court’s findings of fact as first being unsupported by the evidence and second, as being so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In considering the no evidence point we must view the record for all the evidence and legitimate inferences supporting the findings and disregard all evidence to the contrary. If there is any probative evidence to support the court’s findings we must overrule this point of error. In considering the second point, we must view the entire record for all the evidence and set aside the findings only if they are so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). After examining the evidence, we overrule such points of error.

We consider appellant’s thirty points of error in four segments: (1) does the instrument creating the Family Trusts authorize its trustee to execute this deed of trust; (2) was there valid consideration for the deed of trust obligation and liens; (3) was the interest rate usurious to the trustee; and, (4) was the modification and extension agreement of this loan admitted in evidence or even admissible.

In considering the trustee’s authority to execute the deed of trust, we examine the trust instrument itself and find several provisions granting the trustee authority to act for the trust. Under “POWERS, DUTIES, AND RIGHTS OF TRUSTEE” we find the following:

(6) Borrowing Money. To borrow money and to execute promissory notes therefor, and to secure such obligations by mortgages or other liens or pledges of any property of the trust estate.
(13) Desirable Powers Not Enumerated; Powers Under Changed Conditions. To exercise such other powers as may be necessary or desirable in the management and control of the trust estate, whether the same be of like kind or character to those herein enumerated or not, in particular to enable the Trustee to act under changed conditions, the exact nature of which cannot now be foreseen.

Paragraph (16) section (i) specifically provides:

No purchaser from or other person dealing with the Trustee shall be responsible for the application of any purchase money or other things of value paid or delivered to the Trustee, but the receipt of the trustee shall be a full discharge; and no purchaser from or other person dealing with the Trustee and no issuer or transfer agent or other agent of any issuer, of any securities to which any transaction with and Trustee shall relate, shall be under any obligation to ascertain or inquire into the power of the Trustee to purchase, sell, exchange, transfer, mortgage, pledge, lease, distribute, or otherwise in any manner dispose of or deal with any securities or other property held by any trustee or comprising part of the trust estate. [Emphasis added.]

We recognize the general rule of law in Texas that a power to sell trust property does not include the power to mortgage unless the terms of the trust expressly grant a mortgaging power or it can be implied from the terms of the trust. Jackson v. Templin, 66 S.W.2d 666, 670 (Tex.Comm’n App.1933, jdgmt. adopted). We hold, however, that the terms of the Lawler Family Trusts relieve a reasonably prudent lender from the duty of further inquiry as to the power of the trustee to execute this deed of trust. In Eisel v. Miller, 84 F.2d 174 (8th Cir. 1936), the court reached the same result in construing language in a trust instrument similar to paragraph 16 section (i) of the Lawler Trust instrument.

Appellant insists that because paragraph 16 is headed “Apportionment of Income and Expenses,” section (i) of this paragraph should not be considered as a general statement of the trustee’s authority. We disagree. We must construe the trust to uphold the settlor’s intent, Aberg v. First National Bank in Dallas, 450 S.W.2d 403 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.), and we find appellant’s construction unreasonable.

We next consider the question of valid consideration supporting this deed of trust. Appellant argues that both good faith and value paid to the trusts must be present to justify the encumbrance of the trust property. This question might be relevant in a suit by the beneficiaries against the trustee for breach of trust, but it can have no bearing in a suit such as this against a mortgagee who is entitled to rely on the Trustee’s authority, as stated in the trust instrument. Nowhere in this record has the appellant alleged, much less offered any proof, of breach of trust by Nicoladze, in any of these transactions or hinted of fraud on the part of Lomas & Nettleton. Thus, since it is well settled that a mortgage may be given to secure the debt of a third person, Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607, 608 (1960), and that contract law does not require both a benefit to the promisor and a detriment to the promisee, Jeter v. Citizens National Bank, 419 S.W.2d 916, 918 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.), we must only determine if there was a detriment to this mortgagee. Lomas & Nettleton’s payment of $2,500,000 meets that test. Thus, there was adequate and valid consideration and we resolve this issue against appellant. In his points of error concerning consideration, appellant also complains of evidence admitted to show a benefit moving to the trusts. We do not address these points because any error here would be harmless in view of our holding that no benefit to the trusts is required.

Appellant’s third argument is that the loan is usurious under Tex.Rev.Civ.Stat. Ann. art. 5069-1.02 (Vernon 1971), which pertains to loans to noncorporate borrowers. In overruling this contention we find evidence to support the trial court’s holding that the trustee is not, as appellant claims, a maker of the note, but a guarantor and therefore barred from invoking the penalties of usury under Tex.Rev.Civ.Stat.Ann. art. 1302-2.09 (Vernon Supp.1978). Our supreme court rejected a similar claim in Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (Tex.1976). In that case the Boharts, though primarily liable on the note, were held to be guarantors, and, therefore not entitled to assert a usury defense on a corporate loan. In the case before us, Nicoladze did not execute the note, but only executed the deed of trust which states it is “to secure and enforce payment of” the loan to 121 Preston Corporation. We agree with the trial court’s findings that the trusts are in the position of guarantors rather than makers.

In his usury points, appellant alleges error in the exclusion of his Exhibit 3, a demand letter from appellee on a totally different transaction and deed of trust. We overrule the point of error and hold it was properly excluded and not germane to any claim of usury in the case at bar. Nixon Construction Co. v. Rosales, 437 S.W.2d 52, 53, (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.).

Appellant’s last points all relate to a modification and extension agreement dated September 25, 1975. First, he claims that the agreement was not even admitted into evidence and therefore not properly before the trial court. The statement of facts reveals that appellee offered the agreement and appellant made several objections. Then, after the appellee asserted that the agreement was recorded in Dallas County, the trial judge stated, “Then I must admit it.” We hold the agreement was admitted into evidence.

Alternatively, appellant claims the agreement was not properly admitted into evidence because appellee did not follow the requirements of Tex.Rev.Civ.Stat.Ann. art. 3726 and art. 3731a (Vernon’s Supp.1978) and because no proper predicate was laid or proof of authentication made. We agree the evidence should not have been admitted. Appellee did not lay any predicate for the agreement other than contending that it was recorded. Moreover, by not filing the instrument with the court three days before trial, he did not follow the requirements of article 3726, which allows admission of recorded instruments without proof of authentication. We hold, however, any error in the admission of this agreement, which appellant even refers to in his petition in intervention, is harmless. Although the trial court made two findings of fact concerning the execution and provisions of the instrument, and Conclusion of Law “C” states the loan has been in default since July 1976, the date specified in the modification and extension agreement, the court’s judgment upholding the validity of the deed of trust and denying the injunctions and damages is fully supported by other evidence in the case. Therefore, as appellant does not contend that the loan was not in default, such error did not “cause the rendition of an improper judgment in the case . . .,” Tex.R.Civ.P. 434.

Affirmed.


author: KLINGEMAN, Justice.

text:
    Gregorio SALINAS, d/b/a Falfurrias Watermelon Sales, Appellant, v. Sigifredo FLORES, Appellee.
    No. 16067.
    Court of Civil Appeals of Texas, San Antonio.
    May 9, 1979.
    Rehearing Denied June 6, 1979.

      Terry A. Canales, Alice, for appellant.
    R. E. Lopez, Jr., Howard C. Berger, Alice, for appellee.
   OPINION

KLINGEMAN, Justice.

This suit was brought by appellees, Sigi-fredo Flores and Salvador Flores, against Gregorio Salinas, individually and doing business as Falfurrias Watermelon Sales, (and Clyde Schuchert, who did not appeal), in Brooks County, Texas, for the balance allegedly owed by appellant to appellees on a contract of sale of a patch of watermelons. Appellant answered by general denial and by pleas that there was failure of consideration and that the transaction involved was a “consignment” rather than a “sale.” Trial was to a jury, which in answer to the special issues submitted, found that the contract agreed upon between appellees and appellant was a sale; and that neither appellant nor appellees were entitled to attorney’s fees. Appellant’s motion for instructed verdict was overruled by the trial court, which then entered judgment on the verdict in favor of appellees against appellant in the amount of $11,000, with postjudgment interest and costs of court.

This suit arose out of the sale of an 80-acre patch of watermelons in 1975. Ap-pellees were the growers of the watermelons and in May 1975, after negotiations, appellant and appellees entered into a written contract of sale of such patch of watermelons for an agreed price of $14,000, of which $3,000 was paid as a down payment on May 23, 1975, with the remaining balance to be paid within 30 days of that date. On May 24, 1975, the watermelons were damaged or destroyed in a hailstorm.

Appellant’s sole point of error is that the trial court erred in denying his motion for instructed verdict because the contract required for its performance goods identified when the contract was made, and these goods were totally destroyed, without fault of either party, before risk of loss passed to the appellant. Although appellant asserted in the trial court that the transaction was a consignment rather than a sale, he does not in this appeal attack the jury finding that it was a sale. Instead, he contends that under the holding in Caudle v. Sherrard Motor Co., 525 S.W.2d 238 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.), and under the provisions of the Uniform Commercial Code, as adopted in Texas, particularly Section 2.613, he is entitled to a take-nothing judgment as a matter of law. We disagree.

Appellant contends that appellees’ case is founded on the assumption that risk of loss follows title. It is clear from appel-lees’ brief that while this may be one of his contentions, his primary contention is that the party who has care and control of the goods bears the loss. In this case it is undisputed that the absolute care and control of the watermelons passed to the buyer at the time that the contract was entered into which was prior to the time that the loss occurred.

Although appellant relies heavily on Caudle v. Sherrard Motor Co., his reliance on that case is misplaced. The factual situation of Caudle was entirely different from that before us. The court in Caudle discussed the provisions of the Uniform Commercial Code and pointed out that under the Code the risk of loss is no longer determined arbitrarily on the basis of which party has title at the time of the loss. The court there stated that the underlying theory of the Code sections on risk of loss is the adoption of the contractual approach. The court observed that

[sjubject to the placement of a contractual approach at the analytic center of the risk of loss problems is the policy that a party who had control over the handling of goods should bear their loss [and that] [t]he party [who is] in control is in the best position to handle properly the goods, to contract for shipment with a reliable carrier, and to insure the goods.

525 S.W.2d at 241-42. The key issue as to risk of loss in the case before us is which party had control over the goods at the time of loss.

There is ample evidence in the record that in the sale of a “patch” of watermelons the buyer takes full and absolute control of the watermelons when he contracts for them. There is evidence that after such a sale all further care which the watermelons require is the responsibility of the buyer, including watering, cultivating, harvesting and transporting, and that after the contract of sale is entered into the buyer has total control over the goods. The overwhelming evidence in the record is that in a sale of watermelons “by the patch,” the absolute control of the watermelons passes to the buyer at the time of execution of the contract; that a sale “by the patch” relieves the seller of any further responsibility for the care of the melons; and that this term was so understood by the parties.

It must be remembered that appellant’s sole point of error is that the trial court erred in denying his motion for instructed verdict. In such a situation, the party moving for an instructed verdict has a difficult burden. The basic rule is that, upon motion for instructed verdict, the trial court, without passing upon the credibility of the witnesses, accepts as true all evidence which, when liberally construed in favor of the adverse party, tends to support the adverse party’s contention. The court then indulges every reasonable inference which can properly be drawn from the evidence in favor of such opponent’s position, and discards all contradictory evidence favorable to the movant. When so viewed, if the evidence amounts to more than a scintilla, then an issue is at least raised for the jury to determine. 3 R. McDonald, Texas Civil Practice § 11.28.2 (rev. 1970). Under the evidence before us, we conclude that the trial court did not err in overruling appellant’s motion for instructed verdict.

By cross-point, appellees complain that they should additionally have been awarded prejudgment interest. Although prejudgment interest is recoverable as a matter of law in certain cases, there should be pleadings to support such an award. An examination of the record discloses that appellees did not in the petition on which they went to trial ask for recovery of any interest. The Supreme Court of Texas in Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex.1976) discussed extensively the matter of prejudgment interest, and in that opinion stated:

[T]his court has not dispensed with the requirement that the petition contain pleadings to support an award of prejudgment interest. International & G. N. Ry. Co. v. Lyon, 112 Tex. 30, 243 S.W. 973 (1922). By failing to plead for prejudgment interest a plaintiff may waive his right to it. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499 (1926). We do not approve the court of civil appeals’ statements that Union and MPD were entitled to prejudgment interest, ‘whether prayed for or not.’

Id. at 96. Appellee’s cross-point for recovery of prejudgment interest is overruled.

Finding no error, we affirm the judgment of the trial court.

On Motion for Rehearing.

Both appellant Gregorio Salinas, d/b/a Falfurrias Watermelon Sales, and appellees, Sigifredo Flores and Salvador Flores, have filed motions for rehearing. Appellees assert that we improperly denied their cross-point for prejudgment interest in that they are entitled to such interest since they plead and proved a written contract with a definite sum due on a definite date, and since they also plead for general relief. Appel-lees’ motion for rehearing is granted. We overrule appellant’s motion for rehearing.

Our opinion of May 9,1979, is changed by deleting the last two paragraphs of said opinion (on pages 815 and 816), including the footnote (on page 816), and substituting in place thereof the following:

By cross-point, appellees complain that they should have additionally been awarded prejudgment interest. We sustain this cross-point, which is controlled by the recent decision of the Supreme Court of Texas in Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 (1979), where on rehearing the Court held that

under article 5069-1.03, prejudgment interest may be awarded based on a prayer for general relief if the plaintiff pleads and proves a written contract ascertaining a sum payable on a date certain. In the present case Republic has plead and proved an enforceable letter of credit. The letter of credit and accompanying documents met the requirements of the statute in that no interest rate is stipulated, an ascertainable sum is stated, and a specific time for payment is provided. Northwest should therefore be required to pay the applicable prejudgment interest rate under the statute inasmuch as it had the extended use and benefit of the principal sum.

Appellees’ pleading on which they went to trial prayed that “[they] have judgment in the sum of $11,000.00 plus $2,500.00 as reasonable attorney’s fees, costs of suit, and for such other and further relief to which Plaintiffs may show themselves justly entitled.” The prayer for general relief before us is basically similar to that involved in Republic. Texas courts have repeatedly recognized that under Article 5069-1.03 an award of prejudgment interest may be predicated on a prayer for general relief if the plaintiff pleads and proves a written contract ascertaining a sum payable at a date certain prior to judgment. Republic National Bank of Dallas v. Northwest Bank of Fort Worth, 578 S.W.2d 109 (1979) (on motion for rehearing); Liberty Mutual Insurance Co. v. General Insurance Corp., 517 S.W.2d 791, 798 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.) (on motion for rehearing); Combined Insurance Co. of America v. Kennedy, 495 S.W.2d 306, 308 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Dunnam v. Dillingham, 345 S.W.2d 314, 319 (Tex.Civ.App.—Austin 1961, no writ).

In the present case appellees have plead and proved a written contract providing for a definite sum payable on a date certain. No interest rate is stipulated in the written contract and the transaction therefore meets the requirements of Article 5069-1.03. Appellees are entitled to the legal rate of interest provided for under such statute.

The judgment of the trial court is reformed so as to provide for prejudgment interest at the rate of six percent per an-num from June 23, 1975, until February 3, 1978, the date of the judgment, and thereafter postjudgment interest at the legal rate of nine per cent per annum until paid.

As so reformed, the judgment is affirmed.

      . The portion of Section 2.613 relied upon by appellant provides as follows:
      Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, . . then
      (1) if the loss is total the contract is avoided. Tex.Bus. & Com.Code Ann. § 2.613(1) (Vernon 1968).

      . The question presented in Black Lake was whether a prayer for “interest” without more, constituted sufficient pleadings to support an award of prejudgment interest. The court held this prayer sufficient but we do not have this situation before us. There is no prayer whatsoever for recovery of interest in the present case.


text:
    Jack HANNAN et al., Appellants, v. CITY OF COPPELL, Appellee.
    No. 19897.
    Court of Civil Appeals of Texas, Dallas.
    May 21, 1979.
    Rehearing Denied July 10, 1979.
    Morris I. Jaffe, Wynne & Jaffe, Dallas, for appellants.
    Lawrence W. Jackson, Saner, Jack, Sal-linger & Nichols, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

This appeal concerns the validity of a City of Coppell ordinance changing the zoning classification of a tract of land. Appellants argue the ordinance is invalid because the Coppell City Council was not duly constituted at the time the ordinance was passed and because the required three-fourths vote to pass the ordinance was not obtained. The issue is whether the required three-fourths vote was obtained with only four out of five councilmen present. The trial court held the ordinance valid and we affirm.

Coppell is a general laws city governed by Tex.Rev.Civ.Stat.Ann. arts. 961-1132 (Vernon 1963). Councilman Don Carter was not present on January 10, 1978, when the ordinance was passed. At an earlier regular meeting, Carter had announced that he was disqualified from voting on the proposed ordinance. Before the meeting on January 10th, he was severely injured. The first act of the council on January 10th was to pass a resolution which stated:

WHEREAS, Councilmember Don Carter was recently injured in a plane crash; and
WHEREAS, he is presently confined to the hospital and will be disabled and prevented from attending future council meetings for some period of time; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS:
SECTION 1. That because of Councilman Carter’s disability and the fact that he will be unable to attend future council meetings for sometime, his absence from such future meetings shall be considered as excused absences; however, for the purpose of voting and determination of quorum, his office shall be considered vacant until such time as his physical condition will permit him to return to his duties as City Councilman.
SECTION 2. The City Council further finds that Councilman Carter has heretofore publicly announced to the City Council at regular session that he is disqualified because of interest in any vote which might be taken upon the Fox & Jacobs’ zoning change application which is presently pending before the City Council.

The council then passed the ordinance in question by a vote of three to one.

The parties agree that under Tex.Rev. Civ.Stat.Ann. art. 977 (Vernon 1963) the City Council of Coppell is composed of a mayor and five councilmen and that under Tex.Rev.Civ.Stat.Ann. art. lOlle (Vernon Supp.1978-1979), the number of votes required to pass the ordinance is “three-fourths of all members of the legislative body.” Appellants contend, however, that three-fourths of five is the necessary vote to pass the ordinance. We disagree and affirm the trial court on the basis of City of Alamo Heights v. Gerety, 264 S.W.2d 778, 780 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). In that case an application for rezoning was denied by a three-fourths vote of four councilmen. All five councilmen were present but one disqualified himself. The court upheld the validity of the council’s action by holding first, that a disqualification is the same as a vacancy when determining the number of members of the council, and second, that “all the members of the legislative body” (art. lOlle before it was amended) means “all the members in esse and qualified to act.” Following City of Alamo Heights, we hold that only three votes out of four were needed to pass this ordinance.

Appellant argues State v. Etheridge, 32 S.W.2d 828 (Tex.Comm’n App.1930, judgm’t adopted) is contrary to City of Alamo Heights. We agree with appellee that Eth-eridge is consistent with the holding of City of Alamo Heights that all members of the legislative body means “all the members in esse and qualified to act.” In Etheridge a city ordinance passed by a two-thirds vote of only three of the five members present was declared invalid. Etheridge did not discuss the effect of a vacancy or disqualification on the required number of council members necessary to pass an ordinance.

Because we hold the Coppell City Council as it met on January 10, 1978, was a duly constituted city council and the ordinance in question was passed by three-fourths of the council, we affirm.


text:
    Elizabeth ROBERSON, Appellant, v. Dr. Dennis J. FACTOR, et al., Appellees.
    No. 19843.
    Court of Civil Appeals of Texas, Dallas.
    May 21, 1979.
    Rehearing Denied July 10, 1979.

      John H. Holloway, Houston, for appellant.
    C. A. Searcy Miller, Ray, Anderson, Shields, Trotti & Hemphill, Royal H. Brin, Jr., Strasburger & Price, James H. Holmes, III, Burford & Ryburn, Dallas, for appel-lees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellant, Elizabeth Roberson, was hospitalized in appellee Baylor Hospital in July 1975, and underwent surgery on an enlarged ovary by appellees Dr. Dennis Factor and Dr. Michael Putman on August 1. She sued both doctors and the hospital claiming negligence in this operation resulting in injury to her pubic bone. From an instructed verdict granted in favor of all appellees, appellant appeals on the grounds that the instructed verdict was error because there was evidence of negligence and proximate cause and that the doctrine of res ipsa loquitur should have been applied to the case. She also complains of the exclusion of certain medical testimony. We affirm on the grounds that res ipsa loquitur does not apply and, in the absence of that doctrine, there is no evidence of negligence in the record.

Although appellant has had several medical problems in the past, she asserts she never had any pain in the pubic area before this operation. She complained of pain in her stomach before seeing Dr. Factor. Immediately after the surgery, she began experiencing severe and incapacitating pubic pain and is still experiencing this pain. She does not remember any event in the hospital, such as being dropped, that could have caused the injury. The surgery itself was confined to an area at least two or three inches above the pubic bone.

In considering this appeal from an instructed verdict we must accept the evidence supporting appellant’s allegations as true. All inferences from the evidence must be drawn in favor of appellant’s cause of action and all conflicts drawn in favor of appellant. Williford v. Banowsky, 563 S.W.2d 702, 704 (Tex.Civ.App.-Eastland 1978, writ ref’d n.r.e.).

We first consider the applicability of res ipsa loquitur to this case. The doctrine of res ipsa loquitur will imply negligence in situations where (1) the character of the accident and the circumstances surrounding it lead to the conclusion that it would not occur in the absence of negligence, and (2) the injury is caused by some instrumentality or agency within defendant’s exclusive control. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 969 (1944). Texas courts, however, have allowed the doctrine in malpractice actions only in very limited circumstances, primarily because expert testimony is usually required to prove these cases. The doctrine has been allowed in Texas where the negligence is obvious to a layman. Hunter v. Robison, 488 S.W.2d 555, 560 (Tex.Civ.App.-Dallas 1972, writ ref’d n.r.e.). Examples include when the negligence alleged is in the use of mechanical instruments, operating on the wrong part of the body, or leaving surgical instruments or sponges within the body. Williford v. Banowsky, 563 S.W.2d 702, 705 (Tex.Civ.App.-Eastland 1978, writ ref’d n.r.e.).

Appellant contends the doctrine should apply because she was unconscious, the instrumentalities used were under the control of appellees during the alleged negligence, and part of the body not involved in the surgery was injured. We disagree because the testimony of the medical witnesses establishes that the cause of plaintiff’s condition is unknown. Possible causes include trauma, cutting off the blood supply to the bone, hormone imbalance, infection, or the condition could be a congenital or birth defect. One medical witness testified the condition had existed at least six months to a year before he examined x-rays taken approximately three months after the operation.

This is not the type of injury which is within the common knowledge of a layman. In fact, it is not certain if plaintiff’s condition is an injury or caused by an injury. Clearly, the record does not show that this condition would not have occurred in the absence of negligence. Consequently, we hold that res ipsa loquitur does not apply.

Appellant’s medical witnesses testified that the negligent use of the retractor, dropping objects on the plaintiff, or dropping the plaintiff herself, could cause the condition. This speculation does not give rise to res ipsa loquitur. An inference cannot rest upon an inferred fact, but facts upon which an inference rests must be raised by direct evidence. Pekar v. St. Luke’s Episcopal Hospital, 570 S.W.2d 147, 150 (Tex.Civ.App.-Waco 1978, writ ref’d n.r. e.). We have no such evidence. As in Pekar, “[i]n this case no act or failure to act has been proved as to any defendant or their employees. The evidence shows that plaintiff’s injuries could have occurred from causes other than defendant’s acts or omissions, and such have not been negated.”

Appellant’s next points relate to evidence on the negligence and proximate cause issues. We cannot find any evidence in the record that any negligent act or omission occurred during appellant’s surgery. Because we hold there is no evidence of any negligence on the part of any of the defendants, we do not reach the proximate cause point.

The last point of error concerns the exclusion of testimony by Dr. Robert Finks, the appellant’s grandfather. The testimony was objected to on the grounds that the witness was not qualified. Whether a witness qualifies as an expert is a matter of judicial discretion. Standard Motor Co. v. Blood, 380 S.W.2d 651, 653 (Tex.Civ.App.-Houston 1964, no writ). Dr. Finks was a retired physician who limited his practice to pediatrics. He admitted he knew little about gynecological matters and did not know “the incidence of injuries following this type of surgery.” We hold the exclusion of testimony by Dr. Finks was not an abuse of discretion. Wilson v. Scott, 412 S.W.2d 299, 303-304 (Tex.1967).

Affirmed.


author: OSBORN, Justice.

text:
    James W. JONES and Ronald R. Calhoun, Appellants, v. Virginia S. FORD, Appellee.
    No. 6826.
    Court of Civil Appeals of Texas, El Paso.
    May 23, 1979.
    Opinion on Motion for Rehearing Denied June 13, 1979.

      Calhoun, Morton, Deason & Preslar, Ronald R. Calhoun, Fred J. Morton, El Paso, for appellants.
    Long & Koehler, Ward L. Koehler, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a summary judgment in a trespass to try title case which involves the respective rights of one party claiming under a deed of trust lien and other parties claiming under a subsequent sheriff’s deed following an execution sale. The trial Court entered judgment foreclosing the lien for the party claiming under the deed of trust. We affirm.

On February 25, 1969, Philip Walizer gave a 180-day promissory note to Virginia Ford to evidence an existing debt on an open account. The note for $1,885.76 was secured by a deed of trust lien on two lots in El Paso County. The deed of trust was filed of record in the County Clerk’s office on February 12, 1970.

On June 19, 1970, El Paso Brick Company obtained a judgment against Mr. Walizer for $1,204.12. Execution was issued, a levy and sale was had, and a sheriff’s deed conveying the two lots was recorded on October 30,1970. The Brick Company conveyed the two lots to the Appellants, Jones and Calhoun, by warranty deed dated September 29, 1970, which deed was recorded on May 5, 1971.

Mr. Walizer, being unable to pay his note to Virginia Ford, executed a quitclaim deed on May 5, 1972 conveying to her the two lots. This deed was recorded on August 25, 1975. The quitclaim was accepted in satisfaction of the indebtedness evidenced by the 1969 promissory note.

The Appellants contend in their first two points of error that the trial Court erred in finding that the Appellee had a valid and subsisting lien on the property in question because there is a presumption that the debt was paid and because there had been no valid extension and renewal of the debt. Article 5520, Tex.Rev.Civ.Stat.Ann., provides that all actions for recovery of real estate by virtue of any deed of trust lien on real estate shall be instituted within four years after the cause of action shall have accrued, and not afterward. It further provides that after four years payment of such lien debts shall be conclusively presumed to have been made, and the lien for security of same and any power of sale for the enforcement thereof shall be void and cease to exist, unless such lien is extended by written agreement as provided by law. There has been no extension and renewal. Article 5539, Tex.Rev.Civ.Stat.Ann., requires that an acknowledgment of a debt barred by limitations be in writing and signed by the party. Appellee contends the quitclaim deed meets this requirement. It does not. The deed does not even mention, much less acknowledge or agree to pay, the debt owed by Walizer to Ford.

But, that is not a controlling issue because we conclude that the issue of limitations is not involved in a proper determination of this suit. At the time the Appellants received their title, the deed of trust was of record and limitations had not run on the note. They took title subject to the rights and the lien of the Appellee. At the time of the deed from Walizer to Appellee on May 5,1972, the note was not barred by limitations.

We hold that the deed had the same effect as a foreclosure of the deed of trust lien and perfected the lien rights in favor of Appellee. This issue was before the court in North Texas Building & Loan Ass’n. v. Overton, 126 Tex. 104, 86 S.W.2d 738 (1935), and in that case the court said:

It is often true, as no doubt it was in the instant case, that it is decidedly to the advantage of the mortgagor and mortgagee to avoid the necessity of a foreclosure suit by a conveyance of the premises to the mortgagee. A rule penalizing them for so doing would be contrary to our policy that litigation is not to be encouraged. The junior lienholder suffers no injury thereby, but is in the same position as if there had been a foreclosure without his having been made a party. His equity of redemption is not affected, neither is his lien thereby elevated to a first lien.

The court in that opinion noted that the conveyance does not operate as a merger of title where it is necessary to protect a first lien over a junior incumbrancer. In addition, the court also said:

It is immaterial, as between the senior and junior lienholders, whether the mortgagee retains the note and mortgage in his possession or surrenders them to the mortgagor. It is likewise immaterial whether or not the deed of conveyance from the mortgagor to the mortgagee recites, as did the one in the instant case, that the cancellation of the note and mortgage was a part of the consideration for the conveyance.

The Overton decision has been followed in First Nat. Bank in Wellington v. McClellan, 105 S.W.2d 394 (Tex.Civ.App.—Amarillo 1937, no writ); Baker v. Marable, 396 S.W.2d 222 (Tex.Civ.App.—El Paso 1965, writ ref’d n. r. e.); and Viking Enterprises, Inc. v. Boyd, 430 S.W.2d 944 (Tex.Civ.App.—Corpus Christi 1968, no writ).

Since the deed has the effect of foreclosure, the lien rights in favor of the Appellee were perfected prior to limitations having run on the note and Article 5520 has no application. Points of error 1 and 2 are overruled.

The next two points of error assert that the trial Court erred in holding that the Appellee was entitled to have her lien foreclosed on the two lots because the Appel-lee’s claim to an interest in the real estate was barred by the three and five year statutes of limitations. The summary judgment proof does establish that the Appellants claim their title under a duly recorded deed and that they have paid all taxes on the property since 1970. But both Article 5507, Tex.Rev.Civ.Stat.Ann., and Article 5509, Tex.Rev.Civ.Stat.Ann., require that a party asserting a claim of adverse possession establish that they have been in peaceable and adverse possession for the periods of time specified. In Vaughan v. Anderson, 495 S.W.2d 327 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.), the court discussed the obtaining of title by adverse possession and said:

To establish title by adverse possession it is essential that there be more than mere claim of title and lack of overt claim on the part of others. The claimant must establish continuous and uninterrupted cultivation, use or enjoyment of the land. * * *
Our courts have uniformly held that sporadic, irregular and occasional use of land does not satisfy the statutes. * *
Even the maintenance of fences around the land and the placing of other improvements on the land, unaccompanied by actual occupancy or open use, does not constitute such adverse possession as will satisfy the statutes. * * *
Even regular and consistent use every year for the statutory period in a manner peculiarly adapted to the nature of the land, is not sufficient if there are substantial periods of time when the land is not in actual use. * * *

In this case, the only statement in the summary judgment evidence which might be construed to show adverse possession is the statement “That during all of this time, we considered ourselves owners of the property in question as evidenced by the fact that each year, we paid all of the taxes on the property, and that on several occasions we did attempt to find buyers for the property, the property being unimproved real estate, and did on at least three separate occasions attempt to sell the property to builders.” Assuming such conduct occurred throughout the period from 1970 to 1976, we do not find that this conduct is sufficient to even raise a fact issue of such adverse possession as will satisfy the statutes relied upon.

It should also be noted that insofar as concerns the three-year statute of limitations, this statute cannot be imposed as a bar to a recorded lien. Moerbe v. Beckmann, 132 S.W.2d 616 (Tex.Civ.App.—Austin 1939, error dism’d jdgmt. correct). The Appellants’ points of error 3 and 4 are overruled.

The judgment of the trial Court is affirmed.

PRESLAR, C, J., not sitting.

ON MOTION FOR REHEARING

The Appellants urge in their motion for rehearing that the case has been decided on a new and different theory than the one presented by the parties and that our opinion “amounts to appeal by ambush.”

When we look at the issues presented to the trial Court, we find paragraph VII of the Plaintiff’s Original Petition alleges in part:

Plaintiff is the legal and equitable holder and owner of said note and indebtedness, and though action on said note would under normal circumstances be barred by the Statute of Limitations, said note and the Deed of Trust securing same remain in full force and effect as the result of the conveyance or attempted conveyance by the said PHILIP WALIZER to Plaintiff of the property described herein at a time before limitations had run, * * *.

In the Plaintiff’s Motion for Summary Judgment, the following is set forth:

When Mr. Walizer attempted to convey the property to Plaintiff by Quitclaim Deed at a time when the Deed of Trust previously given to her was of record and alive, he may have had no interest to convey because of the Sheriff’s sale, but the Deed nonetheless had the effect of keeping alive the Deed of Trust lien as against any intervening lienholder or purchaser for value. Silliman v. Gammage, 55 Tex. 365 (Tex.Sup.Ct., 1881); King, et al. v. Brown, [80 Tex. 276, 16 S.W. 39 (Tex.Sup.Ct., 1891); Willis v. Heath, 18 S.W. 801 (Tex.Sup.Ct., 1891); North Texas Building & Loan Ass’n. v. Overton, [126 Tex. 104], 86 S.W.2d 738 (Tex.Comm. App., 1935); First National Bank in Wellington v. McClellan, 105 S.W.2d 394 (Tex. Civ.App., Amarillo, 1937, no writ hist.).

The case which we relied most heavily upon, North Texas Building & Loan Ass’n. v. Overton, 126 Tex. 104, 86 S.W.2d 738 (1935), is a case cited to the trial Court in the above motion filed in January, 1978. First Nat. Bank in Wellington v. McClellan, 105 S.W.2d 394 (Tex.Civ.App.—Amarillo 1937, no writ), which we cited in our opinion was also cited to the trial Court. Since we reached the same results as the trial Court based upon the quoted allegations and cited cases, we cannot agree that the case has been decided on a new theory.

We recognize that Appellee did contend in this Court that the quitclaim deed had the effect of extending and renewing the deed of trust lien. We have rejected that theory. While Appellee may not have contended that the quitclaim deed had the same effect as a foreclosure, she did contend that the deed kept the lien alive and relied upon the cases which support that position.

We have considered the five assignments of error in the Motion for Rehearing and they are all overruled.

PRESLAR, C. J., not sitting.


author: MILLER, Justice.

text:
    Manual CARDENAS, Sr., Appellant, (1977 Dodge Van) v. The STATE of Texas, Appellee.
    No. A2042.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 23, 1979.
    Rehearing Denied June 13, 1979.
    Tom Lambright, Houston, for appellant.
    James F. Hury, Jr., Crim. Dist. Atty.,
    Michael J. Guarino, Asst. Dist. Atty., Galveston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a vehicle forfeiture proceeding. The trial court found in favor of the State and the vehicle owner appeals. We reverse and render.

Manual Cardenas, Sr. was arrested for violation of the Texas Controlled Substances Act, Tex.Rev.Civ.Stat.Ann. art. 4476-15 (Vernon 1976) (The Act). Pursuant to sections 5.03-5.10 of the Act, the State filed notice of seizure and intended forfeiture in the district court of Galveston County. Trial was to the court. For purposes of this appeal, it is uncontroverted that the sale of drugs was conducted from the appellant’s 1977 Dodge van, and that drugs were found therein. Whether the van was used in a manner which made it subject to statutory forfeiture is the contested issue.

At the trial the State introduced the testimony of the three narcotics officers who first observed the sale of the drugs and participated in appellant’s arrest and the search of the van. All three testified that they first noticed the van in a parked position on Galveston Beach and that it was not moved during their observation prior to appellant’s arrest. All three testified that they personally bought drugs from appellant. They observed many people doing business with appellant who was in the driver’s seat of the van but the officers were not always close enough to know whether others were buying or selling. In essence they testified that they had no first hand knowledge of where the vehicle or the drugs had come from. The trial court rendered judgment that the van be forfeited to the State.

Appellant appeals on one point of error which is that the State failed to prove beyond a reasonable doubt that the van in which the drugs were found was used to transport or in any manner facilitate the transportation for delivery of a controlled substance. Proceedings under Tex.Rev.Civ. Stat.Ann. art. 4476-15 § 5.03 through § 5.10 (Vernon 1976) are civil in rem in nature even though authorized under a criminal statute. McKee v. State, 318 S.W.2d 113 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.). The State, however, is expressly required to prove beyond a reasonable doubt that the property is subject to forfeiture. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 5.07(b) (Vernon 1976). Section 5.03(a) of the Act provides which property is subject to forfeiture and includes:

(5) any conveyance that is used or intended for use to transport for delivery or in any manner facilitate the transportation for delivery of any property described . . .. (Emphasis ours.)

Delivery is defined in section 1.02(8) of the Act as the actual or constructive transfer from one person to another of a controlled substance. Although this section expressly includes “an offer to sell a controlled substance”, section 5.03(a)(5) includes a proviso that . .no conveyance shall be subject to forfeiture if the delivery involved is an offer to sell.” By the clear wording of this statute as well as previous judicial construction of the forfeiture statutes in general, State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (1957), the legislature intended them to curb the illegal transportation of narcotics. The Act itself includes other provisions to punish sale or possession of a controlled substance.

Although the statement of facts is replete with evidence of sale, there is no direct evidence that the van was used or intended to be used for transportation for delivery. This being one of the statutory elements of the State’s cause of action, there must be evidence of it to support the judgment. Tex.R.Civ.P. 301. The State argues that the circumstantial evidence was sufficient on proof of this element. They point out that the only way the van could have been on a public beach was by being driven there. They also point out that certain of the drugs were of Mexican origin so that “transportation” was essential to their being in Galveston. The inference is then that it was the vehicle in question which transported the Mexican drugs for delivery to Galveston Beach. In the usual criminal case, however, a conviction on circumstantial evidence cannot be sustained if circumstances proven do not exclude every other reasonable hypothesis except that of guilt of the accused and proof which amounts only to strong suspicion or mere probability is insufficient. Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56 (1960); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). We think that the evidence and possible inferences therefrom, when considered in light most favorable to the judgment, do not produce the certainty which excludes every reasonable doubt as is required. U. S. v. Martinez, 555 F.2d 1269 (5th Cir. 1977); Dixon v. State, 541 S.W.2d 437 (Tex.Crim.App.1976). Another reasonable hypothesis raised by the evidence is that appellant bought the drugs after he arrived at the beach.

We reverse the judgment of the trial court and render judgment for appellant.


text:
    Kenneth R. CAUDLE et al., Appellants, v. CITY OF GARLAND, Texas et al., Appellees.
    No. 19937.
    Court of Civil Appeals of Texas, Dallas.
    May 23, 1979.
    Rehearing Denied June 27, 1979.

      George A. Preston, Bruder, Cooper, Mc-Coll, & Preston, Dallas, for appellants.
    Elbert M. Morrow, Dallas, for appellees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

Appellants are residents of the City of Garland and customers of the municipal electric power system of that city. They filed this suit against the city and the Texas Municipal Power Agency to declare void a certain contract between the city and the agency for the sale and delivery of electric power by the agency to the municipal system. Appellants also sought to restrain appellees from carrying out the terms of that contract. Appellees moved for summary judgment on various grounds, only one of which need be noticed here. The trial court granted the motions and denied recovery. We affirm on the ground that appellants’ suit is barred under the doctrines of virtual representation and res judi-cata by a judgment in a quo warranto action brought by the State of Texas and others concerning the validity of this particular contract.

The only allegation in appellant’s petition urged here as a basis for attacking the contract in question is the following:

That the Defendant, City of Garland, Texas, acting in its proprietary capacity, has constructed, operates and maintains a municipally owned electric power system; that the Defendant, City of Garland, Texas, purporting to act under its police powers, has established policies which effectively deny, deprive and preclude your Plaintiffs and the class of which they are members (i. e., consumers of electric power and customers of the municipally owned electric power system of the City of Garland, Texas) from procuring electric power from any other source, to the end that the City of Garland, Texas, shall be the exclusive furnisher and source of electric power to the Plaintiffs, and the class of which they are members.

Appellees pleaded and alleged in their motions for summary judgment that appellants’ attack on the contract is barred by the doctrines of res judicata and virtual representation because the constitutionality and validity of this contract, as well as similar contracts between the agency and other participating municipalities, was at issue and was decided by the District Court of Grimes County in cause number 22648, styled State of Texas v. TMPA, et al., which judgment was affirmed by the Court of Civil Appeals, First District, at Houston. Copies of the petition and the judgment in that case, and also the mandate of the court of civil appeals, were filed with the motion. The nature of that case appears also in the opinion of the court of civil appeals, styled State v. Texas Municipal Power Agency, 565 S.W.2d 258 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ dism’d). The plaintiffs in that suit asserted that any payment of funds by the cities to the agency under the contract in question was unlawful on various grounds under the state and federal constitutions. The trial court in that case denied relief by granting a summary judgment, which was affirmed on appeal.

We hold that the judgment in that case bars the present suit, regardless of the fact that, so far as appears, the invalidity of the contract in question was not urged on the exact ground appellants raise here. Appellants argue here that the contract is unlawful and void because in obligating the city to purchase power from the agency and limiting in certain respects its freedom to expand its own facilities and purchase power from other sources, the contract tends to restrict competition and, therefore, is a “monopoly” prohibited by article I, section 26, of the Texas Constitution. This question though not raised in the quo warranto case, could properly have been raised there because that case, like the present, involved the validity of the same contract and the legality of the city’s payments under it.

A similar application of the rules of virtual representation and res judicata was before us recently in Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 566 S.W.2d 315, 317-18 (Tex.Civ.App.—Dallas 1978, no writ). That case, like the present, involved the validity of a contract between two governmental agencies which was challenged in a subsequent suit by different parties and on different grounds than those presented in an earlier suit. We held that the parties attacking the contract were bound by the judgment in the earlier case because otherwise one citizen after another could extend indefinitely litigation challenging the same act of a public body by attacking it on one new theory after another. We adhere to these views. We also hold that this principle is not affected by the circumstance that the new ground of invalidity subsequently urged is based on the constitution. Gist v. Stamford Hospital District, 557 S.W.2d 556 (Tex.Civ.App.—Eastland 1977, writ ref’d n. r. e.), cert. denied, 439 U.S. 822, 99 S.Ct. 89, 58 L.Ed.2d 114 (1978).

Appellees also questioned in the trial court the standing of appellants to bring this suit, and they raise the same question here in support of the summary judgment. We are not sure that the summary judgment can properly be considered as based on lack of standing, since it does not dismiss the action, but finally disposes of all claims presented by appellants. In view of our disposition of the appeal on the ground above stated, we express no opinion on the standing question.

Affirmed.