author: McCLENDON, Chief Justice.

text:
    FERGUSON et al. v. JOHNSON et al.
    No. 7933.
    Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1933.
    Rehearing Denied Feb. 4, 1933.

      James E. Ferguson, of Austin, Judge Ocie Speer, and Judge Ike D. White, both' of Austin, for appellants.
    James V. Allred, Atty. Gen., and R. G. Waters, A. R. Stout, and Neal Powers, Asst. Attys. Gen., for appellees.
   McCLENDON, Chief Justice.

Appeal from a final judgment, upon a directed verdict, denying appellants an injunction restraining appellee members and chief engineer of the state highway commission from making further road construction contracts, and appellee state comptroller from issuing warrants in payment thereof. The case was lately before us upon appeal from a temporary injunction. 55 S.W.(2d) 153.

The puestions presented in the present appeal arise upon the following points urged by appellants:

1. Chapter 13, Gen. L., 3d Called Sess., 42d Leg. (H. B. No. 2, p. 15), repealed that portion of the appropriation providing for future road construction by the commission. Chapter 286, Gen. Laws, Reg. Sess. 42d Leg. This was one of the two controlling propositions urged and had our mature consideration upon the former appeal. No grounds additional to those then advanced are now presented, and further elaboration of our views in overruling the contention would servé no practical end.

2. Under the enabling statutes, the commission’s power to contract for highway construction is limited to the amount of funds actually deposited in the treasury to the credit of the highway fund, and cannot be extended to anticipated revenues coming into that fund during the fiscal year from gasoline tax or any other source.

3. Federal aid appropriations, being mere gratuities on the part of the national government, c-annot be included in estimating “funds available” for highway construction until actually deposited in the state treasury.

4. In any event, it was a jury question whether the commission had adopted a reasonable basis of estimating the amount coming into the treasury to the credit of the highway fund during the remainder of the fiscal year ending August 31,1933.

Based upon records of the highway, comptroller’s, and treasury departments, and estimates of probable revenues and expenditures, the resources and liabilities of the highway department for the fiscal year ending August 31, 1933, were on October 31, 1932, as follows (the several items are actual or estimated as indicated in the statement):

Statement of Estimated Resources and Expenditures of the State Highway Fund
For the Period from November 1, 1932, to August 31, 1933, Including Only Highway Construction Contracts Outstanding At October 31, 1932.

This statement was compiled by tbe state auditor. The “actual” items were taten from records of one or more of the above departments ; those “estimated” under the heading “Resources” are calculations from actual record figures of the previous two-year period' with deductions of 12 per cent, based upon' trend and other probable factors. Tbe highway department’s estimates allow 6 per cent, decrease. While the “estimated” state revenues cover tbe ten months’ period (November 1932 to August 1933), the November 1932 receipts had been paid into the treasury at the time of trial, and showed an increase ovér estimate of $32,000. This item, therefore, is “estimated” only for the remaining nine-months’ period (December 1932 to August 1933). The statement shows a net surplus of $4,670,737.73 (exclusive of federal aid not contracted against), which is approximately 24 per cent, of the total (actual and estimated) expenditures of the department, less the treasury balance, and 32 per cent, of such expenditures less treasury balance plus actual (not estimated) available resources. .The contracts sought to be enjoined amount to $4,183,245.37, of which $986,814.20 is to be paid out of “regular” and $2,670,804.43 out of .“emergency” available federal aid fund of $5,217,718.04 not otherwise contracted against. The remaining $525,626.74 is to be paid ont of state funds. If this latter be deducted from the $4,670,737.73, the surplus percentage would be reduced a shade over 2 per cent. In other words, after these contracts are let, there will still be a surplus of resources over liabilities (actual and estimated) amounting to approximately 30 per cent, of the total “estimated” items of revenue.

Appellants’ second point is predicated primarily upon that portion of Vernon’s Ann. Giv. St. art. 6674?, which inhibits the commission from entering into any contract “which will create a liability on the part of the State in excess of funds available for expenditure under the terms of this Act.” The point made is that “funds available” means only funds actually deposited in the treasury to the credit of the state highway fund. Other statutory provisions cited as bearing upon the question are: “Art. C674d [6674q — 4]. All further improvement of said State Highway System with Federal aid shall be made under the exclusive and direct control of the State Highway Department and with appropriations made by the Legislature out of the State Highway Fund.” And: “Art. 6674e [6674q— 5]. All moneys now or hereafter deposited in the State Treasury to credit of the ‘State Highway Fund’, including all Federal aid moneys deposited to the credit of said fund under the terms of the Federal Highway Act * * * shall be subject to appropriation [by the legislature] for the specific purpose of the improvement of said system of State Highways by the State Highway Department.”

“Funds available,” as marking the bounds of the commission’s contractual liability creating authority for “highway improvement” (article 6674?, above), can, we think, mean but one thing, namely, funds made available for that purpose by the Legislature through appropriation. The appropriation covering the biennium ending August 31, 1933, is set forth on pages 706-712, Gen. Laws Reg. Sess. 42d Leg. (1931); all of the items of which are expressly required to be paid “out of the State Highway Fund.” The first five pages list specific items for each of the fiscal years 1931-1932 and 1932-1933, aggregating $579,-370 and $584,870, respectively. Additionally there is a lump-sum appropriation of $500,000 for the highway building and various other items, some of which are for definite amounts, others general. The item of appropriation here in question reads: “All funds coming into the State Highway funds on hand September 1, 1931, and all funds coming into the State Highway funds, and derived from registration fees or from other sources, after deducting the specific appropriations herein made, are hereby appropriated to the State Highway Department for the establishment of a system of state highways and the construction and maintenance thereof, as contemplated and set forth in Chapter No. 190, Acts of 1917, and all Acts or Amendments thereto.” (Acts 1931, c. 286, p. 711.)

“Funds derived from registration fees, and other sources,” clearly embraces every species of pecuniary resource allocated to the highway fund; and “coming into the State Highway Fund” manifestly applies to the future and embraces the entire biennium ending August 31, 1933. “Funds,” while a broader term than “money,” which it includes, has no absolutely fixed definition, but includes a variety of meanings according to the context. As used in article 6674?, it means all resources allocated to the highway fund, and the modification “available” means made available (that is made capable of being used; given potentiality for use) by legislative appropriation.

As supporting their contention, appellants rely upon Harlingen I. S. Dist. v. C. H. Page & Bro., 48 S.W.(2d) 983 (an unadopted opinion of the Commission of Appeals), and Rice v. Milwaukee, 100 Wis. 516, 76 N. W. 341, 342.

In the former it was held that the proceeds of bonds which had not yet been authorized by vote of the electorate, although the election for that purpose had been called, were not “available funds” to be contracted against —a manifestly inescapable conclusion. Bone v. Black, 174 S. W. 971, 973 (by the Amarillo Court of Civil Appeals) is quoted from with apparent approval. The holding there was that proceeds of such bonds were not “available funds” for contractual purposes, until the bonds had been sold. This holding is predicated upon the following: “Article 2842 indicates that until the bonds are sold the taxes levied to pay them may be discontinued by vote. If before they are sold the tax should be discontinued, the bond will be valueless. Hence a contract before they are sold does not ■bind the fund.”

The fact situations in the Harlingen and Bone Cases present no analogy which would make the decisions there controlling here. There the contracting agency acquired no control over the fund to be derived from the bonds until they were sold. The situation here is entirely different. The funds have been made “available” to the contracting agency (the highway commission) by the authorized body (the Legislature) through appropriation.

There is an essential difference between “funds available” when applied to proceeds of a bond issue voted for a specific purpose, and “funds available” when applied to current revenues allocated to the support of a governmental department engaged continuously in the. improvement and maintenance of an entire “correlated” system of state highways. The language of .those opinions must f>e construed, with reference to the issues for decision.' The authority of a judicial opinion is limited to the judicial decision. It is what the court decides and not what the court says in so deciding which gives authority to the opinion. It is not a safe practice (but often an unfair one to the author) to isolate general expressions of view, and attempt to give to their apparent meaning in the abstract, a universal application.

Appellants, argue that the Legislature has the continuing power to repeal the) appropriation or allocate the fund to other uses. This power is conceded, but it does not militate against the availability of the appropriated fund so long as the power is not exercised. Furthermore, this power is not limited 'to that portion of the fund which has not yet been actually deposited in the treasury, but exists in like manner and to a like extent over that portion of the fund which has been actually deposited in the treasury. We are not here concerned with the effect or validity of a legislative repeal of an appropriation after it has been contracted against. The impotence of private individuals to enforce through the courts their contractual rights against the state, by reason of inability to sue the state without its consent, inheres in every such contract. This impotence, however, does not affect the binding force of state obligations; nor does it deprive the Legislature of the power to delegate to an appropriate agency authority to create binding contractual obligations against the state. It is not to be presumed that the Legislature will withdraw appropriations already contracted against under its own direction (conceding its power 'to do so), without making adequate provision to meet the valid obligations its authorized agency has created at its behest To do so would amount to repudiation. Rut even should the Legislature see fit to repudiate valid state obligations, its act in so doing would, not have the retroactive effect of destroying the previously exercised contractual power of its agency. If such act of withdrawal rendered unavailable the previously available fund, the excess of liability over available fund would not be1 • created by the highway commission but by the Legislature; which body by such act would be creating a liability which it has expressly denied to its constituted agency the power to create. If it should be held that this continuing power of withdrawal is a limitation upon the contractual power of the commission, then, ás above shown, it extends to funds in the treasury as well as to those coming into the treasury. From which it would follow that the entire contractual power attempted to be conferred would be a nullity and the commission would be impotent to perform the functions for which it was created.

In the Wisconsin case a bond issue of Milwaukee was sought to be enjoined on the ground that when added to existing city indebtedness it “was in excess of the constitutional limit of 5 per cent, of the assessed valuation of the city.” It was held that in estimating the net outstanding city indebtedness, prospective “available” city revenues were proper deductions from the gross indebtedness; but that estimated revenues from liquor licenses could not be included in “available” prospective revenues. This for the asserted reason that: “The moneys to be derived from these sources are entirely indefinite and uncertain. They were not in the process of collection, and could be collected only at the will of parties who sought privileges for which license charges were made, and for that reason could not be considered as available assets or resources.”

In Premier Const. Co. v. Kimmell, 230 Ky. 439, 20 S.W.(2d) 77, 81 (1929), the Court of Appeals of Kentucky reached the opposite conclusion in a virtually all fours case. It held: “Now the principle underlying this Bil-leter & Wiley Case [203 Ky. 15, 261 S. W. 855] is plainly 'that, if a license or occupational tax is levied upon the use of a thing or occupations which have become over a period of years stabilized and where, judging the future by the past, it is reasonable to anticipate that the number will probably increase or at least not appreciably decrease, such! tax may properly be considered in estimating the revenues. It is entirely proper that it should be so considered. Those who have to deal with governmental affairs, or who have made .any study of them, know that experience has demonstrated that a sure and stabilized source of income are the license and occupational taxes.”

The following is from the cited Billeter Case: “It is next claimed' that the tax on gasoline and the license tax on automobiles are uncertain, and that the amount of revenue to be derived therefrom canno't be anticipated or approximated. We cannot concur in this. Automobiles have been in general use for many years, and the number in use shows an annual increase. Indeed, they have become indispensable, both for business and pleasure. From last year’s report the number now in use can be ascertained with reasonable accuracy, and there is nothing to indicate a falling off during the biennial period. The act requires a license to be taken out on all that are so used, and, judging the future by the past, it is reasonable to anticipate the number will increase rather than diminish, and, as the use of gasoline is largely incidental to that of motors, the same may be said of it.” 203 Ky. 15, 261 S. W. 855, 861.

Stability as a factor in estimating future revenues from whatever source is only a relative term. The downward trend in gasoline tax receipts, estimated at 6 per cent, by the commission and 12 per cent, by the state auditor, is not peculiar to this tax. The situation producing this trend operates also upon every other source of revenue. However, the relative stability of the gasoline tax as contrasted with the ad valorem tax on real estate (cited by appellants and universally regarded as possessing in the highest degree the certainty requisite 'to “availability” for contractual and debt creating purposes) tends to increase as economic conditions recede below the normal. The underlying causes do not concern us here;. but the fact is apparent from mounting deficits in receipts below previously estimated ad valorem revenue sources. Reasonable prudence in the administration of governmental fiscal affairs would require that probable contingencies be provided, against. A sudden crisis, a disaster of cataclysmic proportions, even a complete debacle, is always within the realm of possibility. But to guard against such possible contingencies would virtually pu't an end to all governmental functioning. We are unable to grasp the force of appellants’ contention that prospective revenues from the gasoline tax and motor license fees cannot be classed as “available” by reason of their uncertainty or instability.

If the meaning appellants ascribe to the legislative pronouncements under consideration were so plain as not to admit of doubt or question, the general rule of statutory construction usually applied in such ease would not permit us to look beyond the language employed to discover the legislative intent. But even this rule is not an altogether inflexible one; and where the literal, grammatical, or. dictionary interpretation of the language would defeat or substantially impair effectuation of the legislative objective, the wording in. which the Legislature has clothed its mandate will not be given controlling effect. Many illustrations might be cited. A comparatively recent one is found in Lottman v. Cuilla (Tex. Com. App.) 288 S. W. 123, later approved in Gattegno v. The Parisian (Tex. Com. App.) 53 S.W.(2d) 1005, wherein it was held that the common-law doctrine of noncontribution among joint tort-feasors was abrogated in its entirety, although the abrogating act expressly limited its application- to cases in judgment. The presumed legislative purpose was held to control, as against the words employed to give expression to that purpose. Even did we concur in appellants’ view of the literal meaning of the statutory language here involved, wa might with propriety paraphrase from an opinion of the Supreme Court of the United States: “The purpose of the statute to develop and maintain an adequate” highway “system for 'the people of” Texas “requires a broader and more liberal interpretation than that to be drawn from mere dictionary definitions of the words employed by” the Legislature. Piedmont & N. O. R. Co. v. Interstate Commerce Com., 286 U. S. 299, 52 S. Ct. 541, 76 L. Ed. 1115, at page 1123.

But the language we are now considering, if in fact susceptible of appellants’ construction, is not so plainly, unambiguously, and unequivocally so, as to preclude inquiry into the legislative purpose, or resort to canons of construction.

While we do not sustain appellees’ contention that, under the theory of the case doctrine, appellants are estopped from urging a statutory construction contrary to that upon which the suit was pleaded in the lower court, such prior construction is we think highly persuasive in the instant case. The original petition, upon which the temporary injunction was obtained, manifests meticulous care in its drawing, and bears the signature of counsel distinguished for legal ability at the bar, upon the civil appellate bench, and as a writer of standard legal texts. This petition, and the amended one upon which the case was tried, set out expressly and explicitly the grounds upon which appellants contend that the proposed contracts are illegal and in excess of the commission’s powers. Nowhere in these pleadings is therei intimation that “available funds” does not include prospective gasoline tax and registration fees for the remaining period of the current fiscal year. On the contrary, we read from the verified original petition:

“For the purpose of being as specific as possible, this plaintiff would show that the funds available to the Commission for all purposes under the law, for the fiscal year, ending August 31,19SS, are approximately as follows:

“Estimated receipts from all state sources upon the basis of actual receipts for previous years to August 31,1933, $21,126,000.00.

“Federal Aid Available, $1,300,000.00.

“Amount cash in State Treasury, $8,123,-432.35.

“Total Available Funds for fiscal year, ending August 31, 1933, $30,549,432.35.

“The foregoing estimate of available funds is predicated upon the comparative value of previous receipts as a basis for estimate and the same is believed and alleged to be a fust, fair, and reasonable statement of the available funds in controversy.

“As against said above estimated total of available contract funds for the fiscal year, ending August 31, 1933, plaintiff would show that there should be charged and held against the same,” etc. (Italics ours.)

Appellants’ present contention appears to have been first urged after the introduction of evidence in the trial court. If the meaning of the statutes was so plainly and unequivocally to the effect now claimed, the probability of its failure of earlier discovery by appellants’ able counsel is remote. If tbe contention now urged bas substantial merit, its outstanding importance as sustaining tbe temporary injunction is manifest, and to withhold it until the trial on the merits would have been purposeless. Appellants now insist that we accept as ineluctable a construction which has all the earmarks of an afterthought on their part.

That “funds available” for contractual purposes embraces prospective revenues from all state sources during, the fiscal year, as well as available federal aid, has been the uniform departmental construction from the beginning. It is not necessary to cite authority upon the proposition that such construction is given great weight by the courts, where the language of the statute does not plainly exclude it. A recent extensive case note upon the subject will be found in U. S. v. Missouri Pacific R. Co., 278 U. S. 269, 49 S. Ct. 133, 73 L. Ed. 322, at page 325, et seq., where the general rule is thus stated: “The practical interpretation of. an ambiguous or uncertain statute by the executive department charged with its administration or enforcement is entitled to the highest respect, and, though not controlling, if acted upon for a number of years, will not be disturbed except for very cogent and persuasive reasons.”

That this doctrine is peculiarly applicable to statutes affecting the fiscal affairs of the state was held in Franklin Fire Ins. Co. v. Hall, 112 Tex. 332, 247 S. W. 822, 823 (Mr. Chief Justice Cureton writing), from the opinion in which we quote: “The acquiescence of the Legislature in the departmental construction has not been merely a passive one, for the reason that the fees authorized by the act are a source of revenue, the consideration of which is one of the primary duties of the Legislature.”

This departmental construction likewise accords with general practice in vogue in this and other jurisdictions. All general legislative appropriations for the support of the state government and its various departments and activities are made for a future biennium, the revenues to meet which are prospective and possess an element of uncertainty equally as great .¿s that incident to those we are considering. We know of no instance in which the accumulation of such revenues in the treasury is a prerequisite to incurring governmental liability. The Legislature itself creates such liability in advance of covering treasury receipts in cases of specific appropriations, and authorizes creation of such liability by its contracting agencies.

Appellants urged both in the brief and argument that the intention of the Legislature, that the highway department be conducted upon a cash basis is manifest from the fact that ample means- to that end are provided in treasury receipts amounting to some two million dollars per month. This is an assumption without basis for its support. The amount of monthly revenues coming into the treasury can be regarded as large or small only as it relates to the purpose to which it is devoted. The limitations which this assumption would impose upon the department, would seriously hamper, if not entirely preclude, efficient and economic execution of its imposed duties on a scale commensurate with the magnitude of construction and operation essential to a “highway system” for this state.

The maintenance and construction of state highways is not only authorized but enjoined as a duty of the highway department. Article 6674q — 4 provides:

“All further improvement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appropriations made by the Legislature out of the State Highway Fund. * * * In the development of the System of State Highways and the maintenance thereof, the State Highway Commission shall, from funds available to the State Highway Department, provide:

“(a) For the efficient maintenance of all highways comprising the State System. ■

“(b) For the construction, in cooperation with the Federal Government to the extent of Federal Aid to the State, of highways of durable type of the greatest public necessity.

“(c) For the construction of highways, perfecting and extending a correlated system of State Highways, independently from State-Funds.”

As already noted, the appropriation for maintenance and construction is of the balance of the funds coming into the treasury “after deducting the specific appropriations herein made.” The latter cover the entire period of each of the-two fiscal years, and are-in very large measure payable monthly. If we take each fiscal year as a separate unit (which is more favorable to appellants than including in a single unit the entire biennium), it w’ould be necessary for the commission to defer all contracts for construction and maintenance until after there had accumulated in the treasury a sum sufficient to cover the entire specific appropriations for the fiscal year, plus the sum to be contracted against. It is readily apparent that this would seriously hamper the department in carrying out the legislative mandate, and inevitably result in substantial detriment to the state. Federal aid presents another serious complication. If this item cannot be contracted against until paid into the treasury, it would be necessary to accumulate an additional sum equal to the entire available federal aid fund before that fund could be contracted against. The available federal aid already appropriated by Congress and allocated to this state is $5,217,718.04. The department must complete construction con-traeted against this fund prior to the end of the federal fiscal year (June 30, 1933), otherwise the appropriation lapses. It is hardly probable that any substantial portion of this Appropriation can be salvaged, if contracts against it have to be delayed until funds equal to the appropriation have accumulated in the treasury over and above a sum sufficient to meet the department’s outstanding obligations. And this, although the surplus of conservatively estimated resources over liabilities (actual and estimated), equals about 30 per cent, of the estimated resources. It is hardly necessary to further elaborate upon the deleterious consequences which would inevitably flow from confining the contracting powers of the department within the narrow limitations for which appellants contend. The record conclusively shows that the department has incurred these liabilities in pursuance of a uniform practice, and without any previous question having been raised as to their legality or propriety, and without any apprehension that it might thereby impair its ability to employ in the interest of the state the full amount of appropriated federal aid. .

Furthermore, the record shows that no part of the estimated $8,204,716.88 requisite maintenance for the balance of the fiscal year has been contracted. If appellants’ position is sound, the department is precluded from contracting for further maintenance until' the treasury balance is sufficient to cover all un-expended specific appropriations and outstanding liabilities, plus the amount to be contracted for such maintenance.

The departmental construction evidenced by the uniform practice of contracting against anticipated revenues stands unchallenged in the record. It relates to disbursement of the largest fund allocated to any state department — a matter of the widest public interest which addresses itself peculiarly to legislative and executive scrutiny. The rules of each House of the Legislature provide for a standing committee on “State Highways and Motor Traffic.” A departmental practice so vital to its functioning must necessarily from its inception have had legislative cognizance and therefore implied affirmative legislative sanction. Allocation to -the “County Road District Highway Fund” of one-third of the department’s prospective gasoline tax revenues necessitated minute inquiry into the status of the department’s fiscal affairs, and its ability to carry on for the then (September 17,' 1932) remainder of the current fiscal year, and presupposes an intimate knowledge of the practices of the department as they related to the very matter now in controversy.

Federal aid appropriations cannot be classified as mere “gratuities” in any proper sense of that word. One of the original expressly conferred powers of the Congress is “to establish * * * post roads.” U. S. Const, art. 1, § 8, el. 7. The acts under which federal aid is appropriated merely prescribe the method which the Congress has adopted for performing this important delegated function. The fact that the dual sovereignties operate within the same territory gives to each an interest in and consequent power of control over the same instrumentality — the public highways. Co-operation in the construe^ tion of such highways is not only permissible, but manifestly highly desirable. The particular method by which such co-operation is attained is a mere matter of detail. The Texas highway commission statutes are expressly designed to conform to the requirements of the federal aid acts. The procedure prescribed under the latter require designation of federal highways, and approval of projects and the performance of contracts thereunder, by federal agencies and officials. Payments are made as the work progresses upon estimates approved by federal engineers, as in other classes of large construction. The fact that these appropriations are deposited in the state treasury, and contractors paid by warrants drawn against the state highway fund to which they are allocated, is but a detail of administration (adopted no doubt for convenience in a joint enterprise), which does not affect the character or substance of the transaction. To the extent of federal aid funds the state highway department is in practical effect made the disbursing agency of the federal government. Contracts against these appropriations, though made in the name of the state, must have the approval of the federal authorities before they become binding obligations of the state, and in like manner federal approval of their performance is had before state warrants are issued to the contractors. These appropriations (of revenues derived from federal taxation) are no more gratuities than any other authorized federal appropriation, and when allocated to a particular state are as “available” as any other] “fund” for appropriate contractual purposes. This is the unquestioned intent and purpose of the state and federal statutes upon the subject, and accords with the uniform departmental construction given to these statutes.

Appellants’ fourth point, that the evidence presented a fact question for jury determination, is wholly without merit. The burden rested upon appellants to establish, prima facie, contemplated acts on the part of the commission in excess of their delegated powers. This burden was not met. No evidence was offered by appellants tending to show the amount of the “available fund” for contractual purposes other than the treasury balance on October 31, 1932. Without questioning the propriety of according to the individual taxpayer in a proper case the power to restrain the functioning of a governmental department, it would be a novel doctrine that would require tte department to make an affirmative' showing justifying its acts whenever a taxpayer might feel disposed to interfere through resort to the courts. Such doctrine would be a denial of the generally recognized prima facie presumption of the honesty, integrity, and efficiency of public officials in performing the duties imposed upon them by law and by the obligations of their official oaths.

But even if such burden rested upon the department, it was met in- the instant case by conclusive proof of the validity of its proposed acts in question. All of the facts bearing upon the issues presented are taken from'public records of unassailed verity. The only discretionary power of the commission which is brought in question, has relation to the estimates of those prospective revenues which possess an element of uncertainty. As held in our former opinion, the commission’s discretion in this regard is not subject to review except for palpable abuse. As already shown, a 30 per cent, margin of safety surplus, in addition to the auditor’s allowed deduction of 12 per cent, exists in these funds, after they have been charged with all legislative appropriations and obligations of the department including those sought to be enjoined. This margin of safety is further increased by the commission’s discretionary power of control over the amount of uncontracted future maintenance (estimated in the above statement at $S,204,7Í6.88), which power may be exercised when ’necessary to meet any appreciable falling off of the monthly estimated treasury receipts. Under no reasonable standard of prudence could the proposed acts of the commission be classed as arbitrary or unreasonable. To hold that the propriety of this action is a fact issue would in effect be the substitution of a jury’s judgment for that of the commission, and transfer to the courts the administrative functions reposed in the commission. The invoked doctrine that the uncontradicted testimony of interested witnesses is not conclusive has no application here. That doctrine has its limitations [Luling Oil & Gas Co. v. Edwards (Tex. Civ. App.) 32 S.W.(2d) 921], but their discussion would serve no useful purpose.

The trial court’s judgment is affirmed.

Affirmed.

On Appellants’ Motion for Rehearing.

It is urged that we were in error in considering for any purpose the quoted allegations of the original petition, for the reasons (a) that this pleading had been superseded by the amendment, and (b) that it is not embodied in the present record and not now before us “for any purpose whatsoever.” The quotation alluded to is copied in our opinion in the former appeal [55 S.W.(2d) 153,155], which is a permanent record of this court. However, the quotation was not employed in any sense as a matter of record which would have binding effect upon appellants’ rights or contentions. It was merely alluded to as lending additional force to the view that the statutory construction for which appellants now contend was not so conclusive as to admit of no substantial doubt, thereby excluding inquiry into the legislative purpose and resort to canons of construction; Our conclusions would be no different had appellants contended originally as they do now, although the added force of their original position would, in that event, be wanting.

The motion is overruled.

Overruled.


source: Caselaw Access Project

author: LEVY, Justice

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS et al. v. WILLIAMS et al.
    No. 4361½.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1933.
    Rehearing Denied Feb. 9, 1933.

      Williams, Lee, Hill, Sears & Kennerly, of Houston, and Bramlette & Meredith, of Long-view, for appellants.
    Wynne & Wynne, of Longview, for appel-lees.
   LEVY, Justice

(after stating the ease as above).

This court is called upon, in order to determine the leasehold estate and rights of the parties to this appeal in the respective particular tracts of land involved in the suit, firstly, to define the limits of the portion of land designated in the excepting clause; and, secondly, to declare the character of the estate and right, if any, which has passed to each party in such particular excepted portion of land. Stated in other words, it becomes necessary in this appeal to determine the area of the graveyard excepted and to define its boundaries, and to declare the character of the estate and right, if any, that each party to the appeal has in such graveyard. In the lease to appellant, and in the prior deeds in evidence, appears following the description designating the 220-aere tract of land the clause reading: “Save and except about ½ acre of land in the south end of this tract, known as the McCutcheon Graveyard.” The clause refers to property excepted in terms sufficiently explicit to enable it to be identified, and the exception may not be considered void for uncertainty. The description is such that not only reasonably defines the excepted land, but is such that, aided by extrinsic evidence, the premises referred to can be ascertained with certainty. The words of description, though, of “about ½ acre in the south end of this tract” are not words of themselves of certainty as to quantity and form, and may not be so regarded in the light of the other words immediately following of “known as the McCutcheon Graveyard.” The words “known as the McCutcheon Graveyard” were evidently used as a method for ascertaining and identifying the “about ½ acre” referred to as located in the south end of the tract. Ordinarily a description of a definite quantity in the particularly described larger tract may be held to mean such quantity lying in square form in the corner named. But, under a conceded rule, although quantity may be an aid in locating granted or excepted premises, yet it does not control where there are other features in the description which go plainly to show an intention to describe a particular tract or lot rather than a particular quantity of land. 14 Tex. Jur. § 228, p. 1022; 18 C. J. p. 293; 2 Devlin on Deeds (3d Ed.) § 1013b, pp. 1029-1033. Where this is true, mere quantity will not prevail. In this condition the excepting clause intended to describe a lot or parcel, in quantity and form, particularly “known as the McCutch-eon Graveyard.” Looking to the facts relating to the plot “known as the McCutcheon Graveyard,” it visibly appeared on the ground, as conclusively established, at the time of the execution of deeds, and of the leases in evidence, that the burial ground had been fenced in by a wire fence in the purpose of segregating the graveyard from the 220-aere farm, and to protect it against depredation of cattle running upon the surrounding land. All the heirs and the owner of the fee of the farm tract recognized the particular fenced plot of ground as segregating and constituting the McCutcheon Graveyard and assented to its being actually used as a repository of the dead. It had established and well-known boundaries on the ground marked out by the fence which inclosed it and contained room enough for double the number of the graves then in it, and for avenues and walks between the graves. It is believed the excepting clause should be deemed as covering the part fenced with the barbed wire fence, and not be deemed to cover the full square one-half acre. The area excepted would be the ground actually fenced and segregated by the barbed wire fence, and no more than that, as constituting the McCutcheon Graveyard, although that plot of ground so fenced was short of half an acre,

In determining the second point mentioned above, the established factual elements must be kept in view, that the Mc-Cutcheon Graveyard had long been dedicated or set aside and actually used exclusively as a private family burial ground, and had been segregated from the 220-acre farm by a fence surrounding it. The land of James McCutcheon, on which the burial ground was located and was being actually used as a repository of the dead, went by descent to his children and grandchildren. The grandchildren afterwards conveyed by deed their undivided interest in the land, without reservation of the graveyard, to W. E. Alexander, whose wife had inherited the remaining undivided portion of the land in virtue of being the daughter of James McCutcheon. At the time of his purchase, Mr. Alexander knew of the established graveyard and both he and his wife at all times recognized and assented to its use as a family burial ground. Mrs. Alexander was later buried there in the fenced plot. And when it happened in the years after purchase that Mr. Alexander, joined by his sons, conveyed the entire farm tract to Jones and Fuller, he entered in the deed, following the description of the 220-acre tract, the express provision, namely, “save and except about ½ acre of land, known as the McCutcheon Graveyard.” The words “save” from and “except” out of have the force of meaning and plainly reflect the intention to exclude from the deed, and to be retained by the grantor, some part of the tract of land which has been specifically described as granted. The effect of this language used is to create, as we think, an exception, and the fee-simple title to the graveyard with the annexed right of use was held and reserved by W. E. Alexander. 14 Tex. Jur. p. 958, §§ 175-179; 19 C. J. p. 937, § 145; 18 C. J. §§ 339-344, p. 340; Johnson v. Elkhorn Gas Coal Mining Co., 176 Ky. 676, 197 S. W. 409. Mr. Alexander was not intending to be precluded from exercising his power of title and the right of the use in the burial ground. It follows as a consequence of the exception made in the deed that none of the subsequent grantors and lessors did or could legally pass fee-simple title or right of use to the appellants in the portion of the ground within the boundaries marked out by the barbed wire fence as constituting the McCutcheon Graveyard.

It is deemed fit to further conclude that Mr. Alexander intended by deed to Jones and Fuller to make the exception of the fee-simple title to the graveyard as a provision of the discharge of a duty due from James McCutcheon to the members of the family interred in the ground. In effect James McCutcheon who as owner dedicated and established the graveyard consented to abandon the use for any other purpose, unlimited as to time of duration. The fee-simple title of James McCutcheon passed to Mr. Alexander partly by purchase and partly by inheritance, subject to and burdened with the uses and purposes of a family burial ground, which was unlimited as to time of duration, to which it had been previously devoted by James McCutcheon. It appears to be the rule that, where property has been actually appropriated either as a pri-yate family burying ground or as a public cemetery, it cannot in either instance be inherited or conveyed as other property is done so as to interfere with the use and purposes to which it has been devoted. Peterson v. Stolz (Tex. Civ. App.) 269 S. W. 113; Stewart v. Garrett, 119 Ga. 386, 46 S. E. 427, 64 L. R. A. 99, 100 Am. St. Rep. 179; Hines v. State, 126 Tenn. 1, 149 S. W. 1068, 1059, 42 L. R. A. (N. S.) 1138, and other cases. Quoting, as very aptly stated, from the Hines Case, supra: “When once dedicated to burial purposes, and interments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust.”

- The exception made in the deed by Alexander sufficiently indicates an intention on his part to reserve and hold the graveyard in trust by him for the purpose of beneficial interest and use therein of the descendants of those buried in the graveyard. The beneficial interest would not be alone in the surface of the ground, but below the surface of the ground where the graves are situated. He could not pass a leasehold estate or right in the graveyard lot inconsistent with, or intrusion upon, the right of use as a graveyard. As held in the companion case of Mary White v. Herbert Williams (Tex. Civ. App.) 67 S.W.(2d) 385, this day decided by this court by Associate Justice Sellers, the descendants of those buried in the graveyard have the equitable right to restrain inconsistent uses of the graveyard, as the drilling of an oil well on the burial ground.

It is concluded that the court did not err in refusing the injunction to appellants because the appellants have shown no estate or interest in the graveyard as bounded by the barbed wire fence and the appellees are threatening to drill an oil well “only within the original fenced portion of the graveyard.”

The judgment is accordingly affirmed.


author: SELLERS, Justice.

text:
    WHITE v. WILLIAMS et al.
    No. 4372.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1933.
    Rehearing Denied Feb. 9, 1933.
    Bramlette & Meredith, of Longview, for appellant.
    Young & Wynne, of Henderson, for appel-lees.
   SELLERS, Justice.

About forty years ago James McCutcheon was the owner of 220 acres of land located in Gregg county upon which he resided with his family. About- this time James McCutcheon set apart a portion of ground on this farm as a family graveyard. At least the evidence does not show that any one but relatives and descendants of James McCutcheon was ever buried there. There are now about twenty graves in this cemetery. The evidence is not clear when the first fence was placed around this graveyard nor as to who put it there, but it does show that two grandsons of James McCutcheon have rebuilt the fence twice and they are now more than 50 years of age and they do not undertake to say when the first fence was built. These grandsons testify that they had no other intention in fencing the graveyard but to rebuild the old fence, although they may have taken in a few feet more land on one corner in order to get a good place to tie the wire. James McCutcheon died still possessed of the 220 acres of land, and was buried in this cemetery, but before his death there had been a number of his descendants buried there. After his death the 220 acres was conveyed to W. E. Alexander, who married a daughter of James MeCutche-on, by the other heirs of James McCutcheon, among whom was Mrs. White, the appellant herein, whose father and brother and several aunts were buried there, and in the deed by the heirs to Alexander there was no mention of the graveyard whatever. W. E. Alexander’s wife died after he purchased the property and was buried in about the center of the Mc-Cutcheon Graveyard. After his wife’s death, Alexander conveyed the 220 acres of land to parties not related to the MeCutcheon family, and inserted this clause in the deed: “Save and except about ½ acre known as the Mc-Outcheon Graveyard.” The evidence shows that at no time did the graveyard as fenced contain as much as a half acre. At the time Alexander sold the land he moved to'North Carolina, where he still lives. On February 8, 1932, Alexander executed to John C. Robbins, Jr., an oil and gas lease upon this one-half acre of land known as the MeCutcheon Graveyard. Robbins assigned this lease to Herbert E. Williams, one of the appellees herein. Williams went on the one-half acre, cleared it up; the graveyard being at the time in bad repair and very much neglected. He built an iron fence around the portion containing the graves, and put each of the graves in nice order and proceeded to erect a derrick on the portion of the graveyard not occupied by the graves, with a view of drilling for oil on this part of the cemetery. Then appellant applied to the court below for and received a temporary restraining order restraining appellee Williams and his associates from drilling on this plot of ground. The trial court upon a hearing dissolved the temporary restraining order, and the appellant has dhly prosecuted this appeal.

We have concluded that the court erred in dissolving the temporary restraining order under the facts as disclosed by the record. That James MeCutcheon set apart the one-half acre of land involved as a family graveyard during his lifetime is not denied in the evidence of any witness. When Alexander conveyed the 220 acres on which the Mc-Cutcheon Graveyard was located, he reserved nothing except the graveyard; therefore the only question to be determined on this appeal is whether under the facts in this case Mrs. White was entitled to apply to a court of equity for a restraining order to prevent the drilling of an oil well on this plot of ground. We think she had such right. This was the effect of the holding in the case of Barker et al. v. Hazel-Fain Oil Co. et al. (Tex. Civ. App.) 219 S. W. 874, 876, and that this right extends to the whole plot of ground and not just to that portion of the same where interments had already been made. Cochran et al. v. Hill et al. (Tex. Civ. App.) 255 S. W. 768.

Appellees insist that Mrs. White lost her right to seek the relief here sought because she joined in the conveyance of the 220 acres of land to Alexander without any reservation with reference to the graveyard. We do not concur in this contention. In the case of Hines v. State, 126 Tenn. 1, 149 S. W. 1058, 1059, 42 L. R. A. (N. S.) 1138, the Tennessee Supreme Court on facts very similar to this case held:

“When land has been definitely appropriated to burial purposes, it cannot be conveyed or devised as other property, so as to interfere with the use and purposes to which it has been devoted. When once dedicated to burial purposes, and interments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust. The right of burial extends to all the descendants of the owner who devoted the property to burial purposes, and they may exercise it when the necessity arises. * * *

“Those who purchase the property after it has been appropriated to burial purposes take it subject to the rights we have stated, without any express reservation in the will or deed under which they take. Such reservation is implied. The graves are there to be seen, and the purchaser is charged with notice of the fact that the particular lot has been dedicated to burial purposes, and of the rights of descendants and relatives of those there buried. Burial lots, whether public or private, are not the subject of trade and commerce, and it is always presumed that they are not included in the sale of property which surrounds them.”

The Hines Case has been cited with approval by the courts of several states, including Texas, and we know of no reason why the rule therein announced should not be applied here.

The judgment of the trial court dissolving the temporary injunction is reversed, and judgment here rendered for appellant, Mrs. White, restraining the appellees from drilling a well for oil in the MeCutcheon Graveyard as prayed for.


author: JOHNSON, Chief Justice

text:
    BARRETT et al. v. CRAFT et al.
    No. 4283.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 9, 1933.
    Rehearing Denied Feb. 16, 1933.

      S. F. Leslie, of Bonham, for appellant Barrett.
    Cunningham & Lipscomb, of Bonham,, for appellant Craft.
    Couch & Couch, of Bonham, for appellees Mitchell and Ferguson.
   JOHNSON, Chief Justice

(after stating the case as above).

Ira Barrett, by twelve assignments of error, complains of the findings and the judgment of the court against him and in favor of J. A. Craft andi H. A. Craft to tha J. A. Craft one-third interest in the Leonard Platform -Company partnership property. In support of his claim to this property, Ira Barrett introduced in evidence the following bill of sale:

“State of Texas, County of Fannin.

“Know All Men by These Presents:

“That, whereas, by virtue of a certain execution issued out of the district court of Fannin county at Bonham, No. - for the county of Fannin, state of Texas, in favor of the Guaranty State Bank, Trenton, Texas, and against J. A. Craft, on a certain judgment rendered in said court on the 12th day of September, 1923, and directed and delivered to me as constable of precinct 3, Fan-nin county, commanding me, I, J. D. Al-bright, constable as aforesaid, did on tha 11th day of October, 1930, levy upon and take in my possession, the property hereinafter described and after advertising the same as required by law, I did on the 29th day of October, 3930, within the hours prescribed by law, at public sale to the highest bidder, sell said property at public ven-due, when the same was struck off to Ira Barrett for the sum of $500.00, the receipt of which is hereby acknowledged, I, J. D-. Albright, constable as aforesaid, have sold, and by these presents do bargain, sell and deliver unto the said Ira Barrett all the right, title and interest, which the said J. A. Craft had on the 29th day of October, 1930, in and to the following described property, to-wit: One-third interest in cotton platform owned by E. D. Mitchell, O. S. Ferguson and J. A. Craft at Leonard, Texas, this for the one-third interest in said cotton platform of J. A. Craft at Leonard, Texas, on railroad property, to have and to hold unto the said Ira Barrett, his" heirs and assigns forever, as fully as I as constable aforesaid, can sell, transfer and dispose of it by virtue of said sale.

“In testimony I have hereunto set my hand this 30th day of October, 1930.

“J. D. Albright, Constable, Precinct 3, Fan-nin County, Texas.”

No judgment or execution was offered in evidence in supp.ort of this bill of sale.-

“A sheriff’s deed [or bill of sale, though] reciting that it was made by virtue of an execution issued on a judgment is insufficient to support title without evidence of the judgment or execution.” Atkinson v. Citizens’ State Bank of Giddings (Tex. Civ. App.) 221 S. W. 998; Richards v. Rule (Tex. Com. App.) 207 S. W. 912; Flenniken v. Foote (Tex. Civ. App.) 270 S. W. 903.

It further appears in evidence that no levy was made, by giving notice to one or more of the partners or clerk of the partnership of the Leonard Platform Company, required by article 3796, R. S., for levying an execution upon the interest of a partner in partnership property. Middlebrook v. Zapp, 79 Tex. 321, 15 S. W. 258; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. The trial court correctly held that Ira Barrett showed no interest in the property, and his assignments are overruled.

As to the $345.25 paid by E. D. Mitchell to Ira Barrett out of the Leonard Platform Company partnership funds under and by virtue of the garnishment judgment, it appears that the judgment, referred to in the writ and a judgment in garnishment, was the individual debt of J. A. Craft, and E. D. Mitchell’s possession of the funds was as member and treasurer of the Leonard Platform Company partnership. J. A. Craft was not entitled to possession, or payment, of any of such funds at the time. They were partnership funds in possession of the partnership, subject to the operating expenses and other obligations of the partnership, and not the subject of garnishment proceedings for the individual debt of J. A. Craft.

“The funds and effects of a partnership are not liable to garnishment for the debt of an individual member. This principle is based upon the theory that the assets of the partnership constitute a trust fund for the satisfaction of partnership creditors, and until the settlement of the partnership business a member of the firm has no specific interest that may be appropriated to the satisfaction of his debt.” 20 Tex. Jur. § 19, p. 720; Brown v. Cassidy-Southwestern Commission Co. (Tex. Civ. App.) 225 S. W. 833; Belva Oil Co. v. Lowe (Tex. Civ. App.) 27 S.W.(2d) 599.

Payment out of the partnership funds by E. D. Mitchell to Ira Barrett by reason of the illegal garnishment judgment against E. D. Mitchell as garnishee would not be a defense to the claim of J. A. Craft, the judgment debtor. Shoemaker v. Pace (Tex. Civ. App.) 41 S. W. 498; Johnson v. Hall (Tex. Civ. App.) 163 S. W. 399. Should E. D. Mitchell’s answer to the garnishment writ be treated as answering for the partnership as well as fori himself, it would be a voluntary answer as respects the partnership, and the court would not thereby acquire any jurisdiction over the partnership funds. Insurance Co. of North America v. Friedman, 74 Tex. 56, 11 S. W. 1046. The assignment by J. A. Craft to H. A. Craft of his interest in the partnership funds, though placed in the mortgage and thereby placed- of record, was by the court correctly held not to be such an instrument as is by statute authorized or required to be placed of record, and its registration in this manner was not constructive notice to any one. However, the assignment not being such as is required to be recorded, constructive or actual notice of the assignment was not necessary.

“The service of a writ of garnishment impounds only such debt- or debts as the garnishee in fact owes to the defendant in garnishment at the time. It does not impound debts owed by the garnishee, which, prior to the service of the writ, have passed by valid assignment from the defendant to another. This is true whether the garnishing creditor has any notice * * * or not.” Adams v. Williams, 112 Tex. 469, 248 S. W. 673, 676; South Texas Lbr. Co. v. Nicoletti (Tex. Civ. App.) 54 S.W.(2d) 893.

Judgment of the trial court denying H. A. Craft and J. A. Craft judgment against E.D. Mitchell, and in denying J. A. Craft judgment against E. IX Mitchell and Ira Barrett," and in denying _ E. I). Mitchell judgment against Ira Barrett, for the $345.25, is reversed and here rendered in favor of H. A. Craft and J. A. Craft against E. I>. Mitchell and in favor of J. A. Craft against E. D. Mitchell and Ira Barrett for $345.25 and for a like amount in favor of E. D. Mitchell, on his cross-action against Ira Barrett. The judgment of the trial court in all other respects is affirmed. The costs of this appeal and of the trial court are taxed against E. D. Mitchell and Ira Barrett, except the cost of the foreclosure proceedings incurred by H. A. Craft, which is taxed against J. A. Craft.


text:
    GRIGGS et al. v. JEFFERSON BANK & TRUST CO. et al (MOSELEY, Intervener).
    No. 4285.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1933.
    Rehearing Denied Feb. 23, 1933.
    Wm. Neff, of Tulsa, Old., and Jas. T. Casey, of Longview, for appellants.
    W. H. Sanford, of Longview, Geo. Prender-gast, of Marshall, and J. A. R. Moseley, Jr., of Texarkana, for appellees.
   SELLERS, Justice.

This suit was brought by Camps Normal Industrial Institute, a Texas corporation, and several individuals as plaintiffs against the Jefferson Bank & Trust Company and several individuals as defendants to recover title and possession of-fifty acres of land, a part of the J. Ruddle Survey in Gregg county. The plaintiffs alleged the statutory action in trespass to try title only. The defendants and intervener J. A. R. Moseley each answered by a general denial, plea of not guilty, and specifically alleged the interest each owned in the land, and asked to have their title quieted.

Camps Normal Industrial Institute received its charter from the state of Texas on February 12, 1918. The purpose for which the corporation was formed was the support of an industrial educational undertaking for the scientific normal and industrial training of the colored youth of Texas. It has no capital stock, and is governed by a board of directors to be composed of not less than eight nor more than twenty-five members. The charter names twelve directors to serve during the first year, and provides for the selection of new directors annually. Seven of the original directors are plaintiffs in this suit.

On April 15, 1918, Camps Normal Industrial Institute purchased fifty acres of land involved in this suit from H. H. Hopkins and wife, II. A. Hopkins, the deed of conveyance being as follows:

“Know all men by these presents, that we, H. II. Hopkins and wife, II. A. Hopkins, of the county of Gregg, state of Texas, for and in consideration of the sum of two thousand, two hundred and fifty dollars to us secured to be paid by Camps Normal Industrial Institute, by and through its duly elected president and secretary, as follows:

“One thousand four hundred and eighteen dollars, cash in hand paid, the receipt of which is hereby acknowledged, and three certain notes of even date .herewith the first two for the sum of. three hundred dollars each, and the third for two hundred and thirty-two dollars, executed by J. E. Boyd as president, and A. Harris, as assistant secretary of said Oamps Normal Industrial Institute, said notes bearing 10% interest per annum from date until paid, and due and payable to H. II. Hopkins on or before one, two and three years from date, respectively, and providing for the usual ten per cent attorney’s fees in certain contingencies; have granted, sold and conveyed, and by these presents do grant, sell and convey, unto J. E. Boyd, R. B. White, O. T. Womack, S. G. Jones, H. H. Hopkins, Wiley Thomas, Taylor-Anderson, J. M. Christian, L. R. Jones, A. 1\ Cooksey, W. E. King and E. M. Griggs, the directors of said Camps Normal Industrial Institute, a corporation, duly incorporated under the laws of the state of Texas, and their duly elected successors in office for the use and benefit of said Camps Normal Industrial Institute, all of Gregg county, Texas, all that certain lot, tract or parcel of land situated in Gregg county, Texas, a part of the John Ruddle H. R. survey, and described as follows: [Here follows description.]

“To have and to hold the above described property, together with all and singular the rights and appurtenances thereunto belonging, unto the said above named directors of said Camps Normal Institute, for the use and benefit of said institute, their successors in office, and their assigns, forever. And we do hereby bind ourselves, our heirs, executors, and administrators to warrant and forever defend, all and singular the said premises, unto the said directors, for the use and bene-, fit of said Camps Normal Industrial Institute, and their successors in office and their assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.

“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above described property, premises and improvements, until the above described notes and all interest thereon, are fully paid, according to their face and tenor, effect and reading, when this deed shall become absolute.

“Witness our hands at Longview, Texas, this 5th day of April, A. D. 1918.”

The vendor’s lien notes were paid off by and released to Camps Normal Industrial Institute.

On September 9, 1919, pursuant to authority from the directors of Camps Normal Industrial Institute, there was created a mechanic’s lien against the property involved to secure the payment of $2,700. This lien and indebtedness was renewed and extended on July 16, 1923, by the giving of a deed of trust on the property. This debt and the deed of trust securing the same were duly transferred to the Jefferson State Bank & Trust Company. The defendant Jefferson State Bank & Trust Company brought suit against Camps Normal Industrial Institute for its debt and foreclosure of the deed of trust lien, and on October 11, 1930, recovered judgment by default against the corporation for its debt and for foreclosure of its lien. An order of sale was issued on this judgment, and the property was sold by the sheriff to P. G. Henderson for a consideration of $1,000. Henderson in turn conveyed the land to the Jefferson State Bank & Trust Company under whom all the defendants in this suit claim.

The case was tried to a jury, and at the close of the evidence the court instructed a verdict for the defendants and entered judgment thereon in favor of defendants for the title to the land involved, from which judgment the plaintiff have duly prosecuted this appeal.

Appellants’ first proposition asserts that the court erred in directing- a verdict for appellees, for the reason that the.title to the land was in the trustees named in the deed, and that they were not parties to the judgment under which the appellees claimed, and have never conveyed their title, and therefore the title to the land is still in these appellants. The only evidence of the trust agreement by which the legal title to the land involved was conveyed to appellants other than Camps Normal Industrial Institute as trustee is that to be found in the deed itself. It is clear to us from the deed that the consideration for the land was paid by Camps Normal Industrial Institute, and that the title was taken in the name of the other appellants as trustees for the use and benefit of the appellant Camps Normal Industrial Institute. No other duty is required of the trustees except to hold the title for the use and benefit of the corporation. Such a trust agreement creates only a dry, passive, and naked trust in which the corporation is the real owner of the land with power to dispose of it whenever it may deem it advisable to do so. The title held by the corporation was divested out of it by the foreclosure proceedings and was held by appellees at the time this suit was brought. The effect of the judgment in this suit was to merge the naked legal title held by the trustees with the equitable or real beneficial title owned by the appel-lees, and thereby quieting the complete fee-simple title to the land in appellees so far as the parties to this suit are concerned.

But appellants insist.the court erred in allowing the appellees to introduce over their objection the judgment of foreclosure for two reasons: First, because they failed to show service of citation or a proper waiver thereof by the appellant Camps Normal Industrial Institute, the defendant in that suit; and, second, because the recitals in the judgment do not show that the court ever acquired jurisdiction over the person of the defendant. Neither of these contentions is entitled to be sustained. As heretofore shown, appellants’ suit is an action in trespass to try title only, and therefore no direct attack is made upon the judgment introduced, hut the attack is a collateral one. The contentions here made were before the Dallas Court of Civil Appeals in the recent ease of Simms Oil Co. v. Butcher, 55 S.W.(2d) 192, 194, in which Judge Jones, in overruling them, said: “However, not every judgment that is in fact void can he impeached by means of a collateral attack. The general rule is that, the infirmity of the judgment, in the respect that renders it void, must appear on the face of the record, and cannot be shown by evidence aliunde, except in a proceeding that constitutes a direct attack on the validity of the judgment. It is the settled rule of law in this state that, on any matter upon which the court must have passed in the rendition of the judgment against a party to' the proceedings, such judgment, on a collateral attack, is immune from evidence aliunde the record. Crawford v. McDonald [88 Tex. 626, 33 S. W. 325], supra, and cases therein cited. The jurisdiction over the person of a defendant litigant in a court of general jurisdiction rests either upon the due service of process on such litigant, or some act of his which amounts to voluntary submission to the jurisdiction of the court. Before judgment can be entered against such litigant, the court is bound to inquire into the regularity and sufficiency of the service, and the fact that a judgment is rendered in the suit constitutes a conclusive presumption that the court did investigate the service and pronounced it valid, even though there is no recital of such fact in the judgment. The question of service vel non thus becomes an issue adjudicated by the court. In such a case, the record is held by our courts to import absolute verity, and cannot be contradicted by evidence in a collateral attack, to show that the defendant was not in fact served. Stapleton v. Wilcox et al., 2 Tex. Civ. App. 542, 21 S. W. 972.”

Neither do we concur in the proposition of appellants that the court erred in refusing their request for permission to file a trial amendment to make a direct attack upon the judgment. The request came after both parties had introduced their evidence in chief and while the appellants were introducing their evidence in rebuttal. Such an amendment would have set up an entirely new cause of action; therefore we are of the opinion that the court did not abuse its discretion in denying permission to file the trial amendment. Bender v. Bender (Tex. Oiv. App.) 187 S.W. 735.

Finding no error in the record, the judgment of the trial court is affirmed.


author: FUNDERBURK, Justice.

text:
    DARNELL v. WALDROP.
    No. 1048.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 20, 1933.
    Rehearing Denied Feb. 17, 1933.

      T. R. Odell, of Haskell, for appellant.
    L. H. Welch, of Breekenridge, for appel-lee.
   FUNDERBURK, Justice.

This suit involves two written contracts, as follows:

“State of Texas, County of Throckmorton “This contract made and entered into this the 30th day of'January, 1929, between E. N. Waldrop of Throckmorton County, Texas, known as party of the first part and R. B. Darnell of Throckmorton County, Texas, known as party of thei second part, witness-eth: That consideration of the covenants herein contained on the part of the said R. B. Darnell of the second part and his representatives to be kept and performed he the said E. N. Waldrop of the first part doth hereby grant, demise and lease unto the said R. B. Darnell of the second part with its improvements thereon, situated in the County of Throckmorton, Throckmorton County, the State of Texas, to-wit: the land herein leased is all the land that I now own in Texan Emigration and Land Company, Survey No. 2235, also on Blk. 14 and Lots 3, 4, 6 and 7 in said block goes with said house to have and hold the said land and premises hereby demised unto the said R. B. Darnell and his representatives from this date until the 1st day of January A. D. Nineteen Hundred and Thirty Five (1935) yielding and paying with his services as follows: The services herein rendered is my board and washing and to live with said R. B. Darnell. I, N. Waldrop, party of the first part, are to bear my own expenses other than mentioned above, and the said R. B. Darnell is to have the exclusive use of said lands for above services rendered, for farming, grazing purposes. And further agreed that if there should be! an oil well or wells drilled on said land above mentioned the said R. B. D'arnell is to receive one eighth (1/8) of my one eight (1/8) of oil that is produced from said land abovet mentioned. Signed at Lusk, Texas, this the 30th day of January, A. D., 1929.

“E. N. Waldrop

“R. B. Darnell

“Witnesses:

“M. S. Hughes

“Mrs. R. B. Darnell.”

“State of Texas, County of Throckmorton “Lot No. 1, Blk. 22, Town of New Town

“Know all men by these presents that I, E. N. Waldrop, this day, November 10th, 1930, do lease to R. B. Darnell for my room and board and washing, one certain garage and tools, known as Sullivan Brothers Garage, Lease to expire January 1st, 1936.

“[Signed] E. N. Waldrop

“Witnesses:

“C. L. Sullivan

“Mrs. Audie Sullivan.”

Waldrop sued Darnell to cancel said leases or to recover damages for the breach thereof, or both, depending upon the proper construction of plaintiff’s petition. The petition contained a count in trespass to try title, as to which the effect of the judgment is to show a waiver. The second count alleged said contracts (setting them out in full), and alleged compliance with same by both parties until about January 18, 1931. As to the lease of the garage it was alleged, aS we understand it, that same was given in exchange for a release of the lease of January 30, 1929, in so far as the latter (covered a particular 32 acres out of an 80-acre tract therein described. The obligations of Darnell as expressed in the written contracts wei’e alleged, and in addition thereto were alleged other obligations not expressed in the contracts, that Darnell and his wife were “to care for plaintiff’s room which he was to retain in the house and to look after the plaintiff in event of his illness and feebleness.”

The petition next alleged that a few months prior to January 18, 1931, defendant began to abuse and threaten the plaintiff, “and after continued abuse, cursing and threats of violence by the defendant toward plaintiff, plaintiff through fear ofi bodily injury and from fear of his life at the hands of the defendant, was forced and compelled to leave his home and to find board and lodging and care elsewhere,” etc. It was averred that thereafter, beginning February 1, 1931, plaintiff was compelled to pay $22.50 per month, aggregating $250, for board and washing; that same was the result of plain- ' tiff’s being forced to leave his home, “and that the defendant, though requested, has failed and refused to furnish plaintiff said board, laundry and care in such manner that the plaintiff could remain .in his home and receive same, and has failed and refused to pay for the same, and has failed and refused to pay the plaintiff rents from his farm, filling station and garage and household goods and kitchen'furniture, but continues to use, occupy and enjoy all) of the same to the exclusion of this plaintiff, and to his damage in the sum of $250.00. That the defendant is insolvent and a judgment against him cannot be collected.” The prayer was for cancellation of the lease contracts for rents for the year 1931, in the sum of $250, “or the reasonable amount of his board and lodging since February 1st, 1931, which is said sum. of $250.00, for possession of the premises hereinabove described,” etc.

Two issues were submitted to the jury. In answer to one it was found that “plaintiff was compelled to leave his home and obtain room, board, and laundry services elsewhere by reason of defendant’s conduct towards plaintiff.” In answer to the other the jury found “that the defendant R. B.- Darnell is insolvent.” The appeal by defendant is from a judgment canceling the leases and ordering writ of possession, but expressly denying any other relief to either party.

The nature of the judgment shows that the court below construed the second cotint of plaintiff’s petition to state a cause of action for rescission and cancellation of the leases. Averments in the pleading carry some indication of an intention to allege such a.. cause of action, but the pleading is wholly insufficient to do so. The executory obligations of the defendant, as provided in the leases, do not purport to be, nor are they alleged to be, conditions or limitations effecting liability to forfeiture or termination. They do purport to be, and should be construed to be, covenants which are at the same time the consideration for the leases. They are governed by the principles declared in Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and Johnson v. Gurley, 52 Tex. 222, There is no contract provision in the leases for a forfeiture for breach thereof. If, therefore, it be-granted that the pleading sufficiently charged a breach of such obligations, the right to cancellation would not follow. (Same authorities.) There are no allegations of fraud, accident, or mistake. It is well settled that, in order to predicate fraud upon promises to be performed in the future, it is necessary to allege, in effect, that there was no intention at the time they were made on the part of the promissor to perform. Chicago, T. & M. C. Ry. Co. v. Titterington, supra.

Another reason why the pleading is insufficient to state a cause of action for rescission and cancellation is, it shows that a substantial part of the 'Consideration (in the way of board and washing furnished) was received by the plaintiff. There is no, offer to do equity by restoring the original status of the parties, nor are there any allegations of facts to excuse the plaintiff from the obligation to do so.

Still another reason is that, in the same count and not in the alternative, plaintiff seeks recovery of damages for the alleged breach of defendant’s obligations under the leases. With full knowledge of the facts upon which rescission is claimed, as plaintiff necessarily had when his suit was filed, he could not claim, damages for the breach of defendant’s obligation and at the same time have rescission and cancellation. While the mere claim for rescission will not waive a right to damages (unless it amount to an election), a claim for damages will waive any right of rescission. As said in Black on Rescission and Cancellation: “One who brings suit upon a contract necessarily asserts that it is valid and enforceable, else he could not derive a cause of action from it. Hence, if one is aware of facts which would justify him in rescinding a contract or other transaction into which he has entered, but nevertheless institutes an action upon it, this is an election to affirm it and a waiver of any right of rescission and the election so. made is final. Thus, for example, if the seller of goods discovers that he has been defrauded or that the purchaser’s representations as to his financial ability’ were false, ho has thereupon a right to rescind the sale and reclaim the goods; but if, knowing the facts, he brings an action for the price of the goods (with or without attachment) he waives the fraud and affirms the sale and cannot resort to proceedings for rescission if pnable to collect the price by such suit.” Section 612. As supporting the latter part of the. text are cited Allyn v. Willis, 65 Tex. 65; Wachsmuth v. Sims (Tex. Civ. App.) 32 S. W. 821.

• We therefore conclude that the pleadings do not authorize the judgment rendered. It is doubtful, however, if the pleading was subject to a general demurrer. We are inclined to the view, although under the circumstances it is not necessary for us to decide the question, that, as against a general demurrer, - the pleading was sufficient to state a cayse of action for damages. But, if so, the judgment was against the defendant upon that cause 'of action, and no assignment of error brings in question the correctness of such action.

• For the reasons discussed, it is our opinion that the judgment of the court below should be reversed, and judgment here rendered for the defendant, which is accordingly so ordered.

On Rehearing.

Appellee, in his motion for rehearing, presents no argument to convince us that we erred in our former opinion, except that, upon a reconsideration of the matter, we have concluded that the record justifies us in holding that the trial court rendered its judgment upon an incorrect theory under the pleadings and the evidence. Such being the case, it is our opinion that we should have remanded the case instead of rendering judgment for appellant, and that therefore the motion for rehearing should be granted, our former judgment set aside, and that our judgment be that the judgment of the court below be reversed and the cause remanded.


author: JOHNSON, Chief Justice.

text:
    WELLS et al. v. LAIRD et al.
    No. 4249.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1933.
    Rehearing Denied Feb. 9, 1933.
    Massingill & Belew, Jerome P. Kearby, Me-Entire, James & Clower, and Ramey, Calhoun, Marsh & Higgins, all of Tyler, for plaintiffs in error.
    Thompson, Mitchell, Thompson & Young and Truman P. Young, all of St. Louis, Mo., R. H. Whilden, of. Houston, Prendergast & Prendergast, of Marshall, and Edwin Lacy, of Longview, for defendants in error.
   JOHNSON, Chief Justice.

Viola Wells and husband, Sidney Wells, and A. M. (Maceo) Johns sued B. F. Laird, J. M. Crim, and Shell Petroleum Corporation, in an action of trespass to try title, for five tracts of land situated in Gregg county, Tex., and for $1,000,000 damages. The five tracts of land consisted of 22½, 27, 103, 27, and 103 acres, respectively, out of the John Wilkerson and L. B. Outlaw surveys. Plaintiffs filed a trial amendment in which they, in substance, alleged that on or about November 3, 1920, Maceo Johns procured her (Viola’s) signature to an instrument of record in Book 42, p. 160, Deed Records of Gregg County, Tex., and that Laird procured her signature to an instrument dated October 5, 1925, recorded in Book 52, p. 263, of said Deed Records, which she has since learned is a deed to the land involved herein; that if she signed said deeds, they were intended as mortgages; and that' the officer taking her acknowledgments did' not comply with any of the statutory requirements for the acknowledgment of a married woman; and prayed that these deeds be declared void, and that she be awarded title and possession of the land, and for removal of cloud from the title, and for general relief. In addition to pleas of not guilty, and the several statutes of limitation, each of the defendants separately pleaded they were innocent. purchasers for value and without notice of any of the claims of the plaintiffs, a.nd prayed for affirmative relief.

Viola Wells had received the first three tracts of land, and her brother, A. M. (Maceo) Johns, the fourth and fifth tracts, by inheritance from and in the division of the estate of their grandfather, John Hilburn, deceased, by judgment of partition recorded in Book K, p. 304, of Minutes of the District Court of Gregg County, which is the common source of title agreed upon and stipulated in the record by and between the plaintiffs and defendants upon the trial of this suit. The deed dated November 3, 1920,- sought to be canceled by plaintiffs’ trial amendment, was executed by Viola Wells and husband, Sidney Wells, conveying the first three tracts to Maceo Johns for a recited consideration of $6,862.50. Viola Wells and husband were living on the land at the time as their homestead. They testified that this conveyance was for the purpose of Maceo Johns’ procuring a loan on the land, and with the understanding that when the loan was made Johns would reconvey the land to Viola. The evidence shows that on March 5, 1921, Maceo Johns and his wife executed to Mrs. Della Crim, mother of the defendant, J. M. Crim, a deed of trust covering the five tracts of land, securing the payment of indebtedness'totaling $3,000 to Mrs. Della Crim. It further appears that this $3,000 indebtedness, at least a greater portion of it, originated by store accounts due by Maceo Johns and Sidney Wells in 'about equal amounts to the Crim Mercantile Company, a corporation, of which Mrs. Della Crim and J. M. Crim were the principal stockholders. The deed dated October 5, 1925, sought to be' canceled by plaintiffs’ trial amendment, was executed by Maceo Johns and wife, joined by Viola Wells and husband, Sidney Wells, conveying the five tracts of land to B. F. Laird and J. M. Crim for a recited consideration of $5,200 paid. It appears that this consideration of $5,200 was paid by Laird and Crim by paying off the deed of trust to Mrs. Della Grim, paying up back taxes an tbe land, and the remainder divided in two equal parts, and paid to Maceo Johns, and to Yiola Wells and husband.

Viola testified that at the time she signed the deed to Laird and Crim she thought it was a mortgage. That she signed it under duress of her husband. That her husband told her unless she did sign it he would quit her. She was corroborated in this testimony to some extent by the witness Calvert Flour-ney, and by her husband, Sidney Wells, who testified that Mr. Crim and Mr. Laird employed him and agreed to give him $200 to get his wife to sign this deed. Viola further testified, in substance, that the officers taking her acknowledgments to the 1920 and to the 1925 deeds, sought to be canceled, did not comply with any of the statutory requirements for the taking of a married woman’s acknowledgment. At the time of the trial the notary to the 1920 deed was dead. The notary to the 1925 deed testified that he had no personal recollection of having taken this acknowledgment, and that he did not personally know Viola Wells.

The jury, in answer to special issues, found that Laird and Crim did not employ Sidney Wells to obtain the signature of his wife, Apio-la Wells, to the 1925 deed, and the jury further found against the plaintiffs and in favor of the defendants on all other special issues submitted to them, except that they found the land was the homestead of Viola Wells and her husband at the time of the execution of the 1920 deed to her brother, Maceo Johns. Shell Petroleum Corporation held title under an oil and gas lease executed to them by Crim and Laird covering tracts 3 and 5, for a consideration of $1,050 paid. Judgment was entered against plaintiffs, and in favor of the defendants that they recover, and be quieted in their title to the land in controversy, describing it.

Plaintiffs in error, Viola Wells and husband, Sidney Wells, assigned as fundamental error that the 22%-aere tract is not described in the judgment as it is described in plaintiffs’ original petition. This tract is described in plaintiffs’ original petition as: “Beginning at the N. W. corner of the Susie Hilburn 81-acre tract; thence iS. 34 chs. 86 links; thence E. 6 chs. 45 links; thence N. 34 chs. 86 links'; thence W. 6 chs. 45 links to beginning.” In the judgment the beginning point and the calls for distance are the same as in plaintiffs’ original petition, but the calls for course run south, west, north, and east to place of beginning. However, the deeds sought to be canceled by plaintiffs’ trial amendment describe the land as described in the partition judgment of .the estate of John Hilburn and make reference to its record. This partition judgment, which was introduced, and agreed upon as' the common source of title, describes the 22%-acre tract as: “Beginning at the N. W. corner of the 81 acres herein given to Susie Hilburn; thence S. 34 chs. 86 links; thence with the homestead line 6 chs. 45 links; thence N. 34 chs. 86 links to corner in the Longview and Tyler road; thence E. 6 chs. 45 links to place of beginning.” It will be noted that no course is given for the second call in this description, but by reversing the calls the course of the second call is ascertained to be west. It will be further noted that to give the second call an east course would place the land in the 81 acres set aside to Susie Hilburn in the same judgment' partitioning the land. We find that the land in controversy is properly described in the judgment, and the assignment is overruled. Bundick v. Moore-Cortes Land Co. (Tex. Civ. App.) 177 S. W. 1030; Moore v. Unknown Heirs of Gilchrist (Tex. Civ. App.) 273 S. W. 308; Leavell v. Seale (Tex. Civ. App.) 45 S. W. 171; Wm. Carlisle & Co. v. King, 103 Tex. 620, 133 S. W. 241; Pearson v. Lloyd (Tex. Civ. App.) 214 S. W. 759.

Plaintiffs in error’s remaining assignments of error complain, in substance, that the evidence is insufficient to support the verdict; that the court erred in permitting the notary who took the acknowledgment of Viola Wells to the 1925 deed to testify that he had never taken the acknowledgment of a married woman when she was crying, or without explaining it to her, or in the presence of her husband ; that the certificate which he made to the 1925 deed was not a false one ; that the 1925 deed was void because the notary testified he did not personally know Viola Wells; and because the court did not ignore the findings of the jury, in answer to the several special issues relative thereto, that in taking the acknowledgment of Viola Wells to the 1925 deed, the notary complied with the statutory requirements, because Viola Wells was unknown to the notary.

It appears that Crim and Laird, and Shell Petroleum Corporation, each were purchasers for value and without notice of the claims of the plaintiffs. Therefore, had the court ignored the findings of the jury, and ruled out the testimony complained of, which we do not find he should have done, plaintiffs would not then be entitled to a judgment, not having discharged the burden on them of showing that the defendants, purchasers for value, under certificates of acknowledgments regular in form, had notice of the irregularities complained of hy plaintiffs, if any existed.

The certificate of a notary to the acknowledgment of a married woman, though regular in form, may be avoided if it does not speak the truth or the deed or the acknowledgment were obtained by fraud or force, provided the purchaser has notice of either of these facts before payment of the purchase money. However, when she actually appears before the officer for the purpose ,of taking her acknowledgment, and the-officer attaches a certificate regular in form, a purchaser, not present at the time, is not bound to see that the officer did his duty. The burden is on the attacking party to plead and prove, not only the defects complained of, but also that the purchaser had notice thereof before parting with the purchase money. Webb v. Burney, 70 Tex. 322, 7 S. W. 841; Pool v. Chase, 46 Tex. 207, 210; Haskins v. Henderson (Tex. Civ. App.) 2 S.W.(2d) 864; Adkins-Polk Co. v. Rhodes (Tex. Com. App.) 24 S.W.(2d) 351; Cockerell v. Callaham (Tex. Civ. App.) 257 S. W. 316; Cockrell v. Griffith (Tex. Civ. App.) 255 S. W. 490.

Each of plaintiffs in error’s assignments have been carefully considered and are respectfully overruled.

The evidence being sufficient, and finding no error, the judgment of the trial court is affirmed.


author: GALLAGHER, Chief Justice.

text:
    O’QUINN v. O’QUINN.
    No. 1323.
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1933.
    Rehearing Denied March 2, 1933.
    Cunningham, Moursund, Johnson, Rogers & Slatton, of San Antonio, for appellant.
    J. J. Collins and Tom P. Coleman, both of Lufkin, and Ingrum, Smith & Morris, of San Antonio, for appellee.
   GALLAGHER, Chief Justice.

This appeal is from a judgment rendered by the district court of Bexar county sustaining a plea of privilege. Mary Booth O’Quinn sued W. L. O’Quinn for the temporary and permanent custody and control of Bolen Booth O’Quinn, a minor. The parti'es will be designated as in the trial court. Plaintiff alleged that she resided in Bexar county and defendant in Angelina county, Tex.; that she and defendant were formerly husband and wife, but that they were divorced by the district court of Angelina county in December, 1929; that they had one child, Bolen Booth O’Quinn; and that no order concerning his custody was made in said suit. She alleged that said cbild was about 12 years old. She prayed for an order awarding the custody of said child to her during the pendency of the suit, for a temporary injunction restraining the defendant from interfering with such possession, and on final hearing for a decree awarding her the permanent custody of said child, requiring defendant to contribute to his support and maintenance, and perpetuating such injunction. Defendant filed a plea of privilege in statutory form, with supplemental allegations not necessary to recite. Plaintiff filed a controverting affidavit. She alleged therein that the principal relief sought by her was the temporary and permanent custody of her said child; that he was then and had been for approximately two years prior thereto in her exclusive custody in said county and had been maintained by her at her sole expense. She further alleged that her custody and control of said child had been in pursuance of an agreement between, her and defendant therefor and that said agreement was to be performed in said county. She did not allege that such agreement was in writing. She also alleged that the defendant had committed trespasses upon her and had threatened and undertaken to remove said child from her possession, and that, because of such action, the court had jurisdiction. Defendant replied to the .plaintiff’s controverting affidavit by general and special exceptions assailing the sufficiency of plaintiff’s allegations to sustain jurisdiction of the cause in said county. The court heard and sustained said exceptions, and plaintiff de-dined to amend. Tlie court thereupon entered an order transferring the cause to 'Angelina county for trial.

Opinion.

Appellant predicates her contention that the court erred in holding her controverting affidavit insufficient to raise an issue of lawful venue in Bexar county and in transferring the cause to Angelina county for trial, on the theory that her suit was based on an alleged trespass committed in said county, and on the further theory that such suit was for the enforcement of an agreement that she should have and exercise continued custody and control of said child in said county. Venue is ordinarily determined by the nature of the principal right asserted and the relief sought for the breach thereof. Nunnally v. Holt (Tex. Civ. App.) 1 S.W.(2d) 933, 934; par. 1; Bateman v. McGee (Tex. Civ. App.) 50 S.W.(2d) 374. Plaintiff, in her controverting affidavit, based her claim to the custody of said child on an agreement with defendant, and stated specifically that such custody was the principal relief sought. The venue of a suit between divorced parties for the custody and control of their child, whether brought in the form of habeas corpus or otherwise, is, in the absence of some special statutory ground, in the county of the defendant’s residence. Black v. Black (Tex. Civ. App.) 2 S.W.(2d) 331, 332, par. 5; Keith v. Keith (Tex. Civ. App.) 286 S. W. 534, 536, par. 5; Lucid v. McDowell, Dist. Judge (Tex. Civ. App.) 206 S. W. 203, 205, par. 3; Finney v. Walker (Tex. Civ. App.) 144 S. W. 679, 681, par. 3. Such a suit invokes consideration of the rights of the respective parties and the welfare of the child, regardless of whether an issue of trespass is involved or not.

Plaintiff alleged in general terms that defendant had committed a trespass on her possession of the child. She did not, however, allege that she had been actually deprived of the possession of said child by defendant by force or otherwise. On the contrary, she alleged affirmatively that she was then in possession of him. The circumstances attending and constituting the alleged trespass were not recited in her petition, and such allegation was therefore a mere conclusion. Cook v. Guzman (Tex. Civ. App.) 19 S.W.(2d) 855, 856, pars. 2 and 3, and authorities cited; Paxton v. First State Bank of Tatum (Tex. Civ. App.) 42 S.W.(2d) 837, 838, pars. 1 and 2, and authorities there cited. But, if defendant’s alleged attempt to deprive her of the possession of the child had been stated with sufficient particularity to show a technical trespass, same was only an incident to plaintiff’s cause of action and not the basis thereof, and therefore insufficient to fix venue in Bexar county.

Plaintiff alleged that defendant had agreed that she should have the custody of said child and exercise control over him in Bexar county. Such allegation was insufficient to fix venue because she did not further allege that such agreement was in writing.

The judgment of the trial court is therefore affirmed.