text:
    IDS LEASING CORPORATION, Appellant, v. LEASING ASSOCIATES, INC., Appellee.
    No. 17500.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 25, 1979.
    Rehearing Denied Nov. 21, 1979.
    Woodburn & Sullivan, G. Dennis Sullivan, Richard R. Hayslett, William C. Woodburn, Dallas, for appellant.
    Hicks, Hirsch, Glover & Cochran, Arthur M. Glover, Jr., John H. Glover, Houston, for appellee.
   DOYLE, Justice.

IDS Leasing Corporation (IDS) brings this appeal from a judgment determining that as between two secured creditors, Leasing Associates, Inc. (Associates) held a superior interest in and to a third party’s trucking equipment and was entitled to the $17,500 proceeds from its sale. The trial court found that the affixing of refrigerator units to truck trailers constituted an accession under Sec. 9.314 of the Texas Uniform Commercial Code (UCC) and that Associates’ security interests was paramount to that of IDS by virtue of Sec. 9.314(c)(1) of the UCC and the Texas Certificate of Title Act. We reverse and render.

IDS and Associates were in the business of financing equipment purchases and taking as collateral a security interest in equipment owned by their customers. In this suit they dealt with a mutual third party named J. W. Allen. Mr. Allen and his two sons owned several trucking companies known as J. W. Allen Properties, J. W. A., Ltd. and J. W. Allen Properties, Inc.

In 1971, Associates and J. W. Allen Properties, Inc. entered into a master agreement for the lease-purchase of various trucks to be acquired over a period of time. In 1972, J. W. A., Ltd. entered into a contract with Convoy Service Company to purchase nine refrigerator units designed for installation on truck trailers. As part of this transaction, Convoy took a purchase money security interest in the refrigerator units and subsequently assigned this interest to IDS, which arranged the financing for the purchase. IDS perfected its security interest by timely filing the financing statement in the Office of the Secretary of State of Texas. Thereafter, the Allens installed these refrigerator units on various truck trailers belonging to them and others.

In 1974, J. W. Allen Properties, Inc. defaulted on some of the terms of the master-lease agreement executed in 1971. In an effort to avoid a complete default, appellee reworked its contract and advanced additional funds to the corporation. As consideration for the reworking of its contract and the additional funds, J. W. Allen Properties, Inc. gave two promissory notes to appellee. Both notes were secured by an interest in certain tractor trailers together with all additions and accessions thereto. Only five trailers are involved in this suit. They are registered in the name of J. W. Allen.

Prior to offering the reworked contract, appellee did a UCC check and found that there were no liens against J. W. Allen Properties, Inc. or J. W. Allen. Appellee procured the titles to the tractor trailers so they could be certain there were no liens against them and so they could register their liens in accordance with the Texas Certificate of Title Act, art. 6687-1, V.A. C.S. Signing of the reworked contract took place in Fort Worth, at which time appel-lee’s representative was tendered title to the trucks. Upon tender, appellee’s representative noted that none of the truck titles were in the name of J. W. Allen Properties, Inc., but that five were in the . name of J. W. Allen and one was in J. W. A., Ltd. Before closing the deal appellee did not run another UCC check on the names of the owners of the trailers to ascertain if there were liens. Appellee’s witness, Mr. French, testified that he knew at the closing that he had a problem with the titles to the trailers before he disbursed the funds. Nevertheless, in order to save the refinancing deal, appellee closed the transaction, taking a security agreement purporting to give a security interest in the trailers. The security agreement was signed only by J. W. Allen Properties, Inc., which was not the owner of the trailers. The promissory notes were signed by J. W. Allen Properties, Inc., J. W. Allen and his two sons, individually. None of the documents was signed by J. W. A., Ltd.

The Allens subsequently defaulted on the reworked contract and both parties claimed title to the refrigerator units. Appellant instituted this suit asserting that under the terms of the security agreement and the note, it has acquired title to the trailers and all accessions thereto. Before suit was filed, the parties agreed to sell the trailers with refrigerators attached and to put the agreed value of the refrigerator units in a Houston bank pending the outcome of this suit.

Trial was to the court without a jury and appellee was awarded the proceeds in escrow. Findings of fact and conclusions of law were requested and filed. Additional and amended findings of fact were also requested but were refused by the court. Appellant alleges 22 points of error.

In points of error 1, 8 and 10, appellant argues the trial court erred in conclusions of law number 1 and number 6 which are as follows:

1. That the affixing of the Thermo King refrigerator units to the trailers constituted an accession to the trailers as defined by Section 9.314 of the Texas Uniform Commercial Code.
6. That under section 9.312(c)(1) Leasing Associates, Inc., is the subsequent purchaser for value as defined in Section 1.201(33) and Section 1.201(32) of the Texas Uniform Commercial Code and therefore Section 9.314(a) of the Texas Uniform Commercial Code does not grant IDS Leasing Corporation a priority security interest to the refrigeration units.

As a term of legal classification, accession is generally employed to signify acquisition of title to personal property by its conversion into an entirely different thing by labor bestowed on it or by its incorporation into a union with other property. 1 Am.Jur.2d Accession § 2 (1962); 1 Tex.Jur.2d Accession § 1 (1959). As a general rule where accessories are sold or furnished without effort on the part of the vendor to retain title, the accessories are permitted to pass with the chattel. 43 A.L. R.2d 819; 1 Am.Jur.2d Accession § 7 (1962); Texas Hydraulic & Equipment Company, Inc. v. Associates Discount Corporation, 414 S.W.2d 199 (Tex.Civ.App. — Austin 1967, no writ). Where accessories and attachments that have been placed on an automobile can be easily identified and removed, they do not become a part of the automobile by accession. . 1 Tex.Jur.2d Accession § 1 (1959); Firestone Service Stores v. Darden, 96 S.W.2d 316 (Tex.Civ.App. — San Antonio 1936, no writ).

At the time of the sale of the refrigerator units in this suit, a purchase money security interest in them was retained. It was subsequently assigned to appellant, who duly perfected his interest by timely filing his financing statement. Appellant never intended that these units be acceded to anyone’s trucks or trailers. The evidence showed these units had individual serial numbers and a name different from that of the trailer manufacturer. Further, there was testimony that while holes had been cut in these trucks to install the refrigerators and that extra iron supports had to be installed in the trucks to accommodate the refrigerators, one could be removed from a truck in approximately 3 hours, and that the holes in the trucks actually increased the value in that it would be more expensive to have the hole cut out than to close the hole. We find that the refrigerator units were not accessions and sustain appellant’s point of error number 1.

However, even if these units were considered as accessions, appellant’s perfected security interest would prevail pursuant to section 9.314, Tex.Bus. & Com.Code Ann. (Vernon 1973).

Appellee argues that his lien priority arises by virtue of article 9.314, subsection (c)(1) of the UCC, which is an exception to article 9.314(a). Appellee does not dispute that article 9.314(a) would give appellant a priority interest in the units in question but for the exception in 9.314(c)(1). Appellee claims, in effect, that all it needs to show is that it is “(1) a subsequent purchaser for value of any interest in the whole . .”

Texas adopted verbatim UCC article 9.314 as it was drafted under the sponsorship of the American Law Institute and National Conference of Commissioners on Uniform State Laws, but Texas uses a point (.) rather than a dash (-) between numbers and interchanges letters with numbers in the sections and subsections. While the wording is identical, the organizing of the National Code and Texas Code are different in the relevant portions, Sections 1-3 and a-c. The National Code Sec. 9-314 reads:

UCC § 9-314. Accessions.
(1) A security interest in goods which attaches before they are installed in or affixed to other goods takes priority as to the goods installed or affixed (called in this section “accessions”) over the claims of all persons to the whole except as stated in subsection (3) and subject to Section 9-314(1).
(2) A security interest which attaches to goods after they become part of a whole is valid against all persons subsequently acquiring interest in the whole except as stated in subsection (3) but is invalid against any person with an interest in the whole at the time the security interest attaches to the goods who has not in writing consented to the security interest or disclaimed an interest in the goods as part of the whole.
(3) The security interests described in subsections (1) and (2) do not take priority over
(a) a subsequent purchaser for value of any interest in the whole; or
(b) a creditor with a lien on the whole subsequently obtained by judicial proceedings; or
(c) a creditor with a prior perfected security interest in the whole to the extent that he makes subsequent advances
if the subsequent purchase is made, the lien by judicial proceedings obtained or the subsequent advance under the prior perfected security interest is made or contracted for without knowledge of the security interest and before it is perfected. A purchaser of the whole at a foreclosure sale other than the holder of a perfected security interest purchasing at his own foreclosure sale is a subsequent purchaser within this section. (Emphasis supplied).

The Texas Code Sec. 9.314 reads:

§ 9.314. Accessions
(a)A security interest in goods which attaches before they are installed in or affixed to other goods takes priority as to the goods installed or affixed (called in this section “accessions”) over the claims of all persons to the whole except as stated in Subsection (c) and subject to Section 9.315(a).
(b) A security interest which attaches to goods after they become part of a whole is valid against all persons subsequently acquiring interests in the whole except as stated in Subsection (c) but is invalid against any person with an interest in the whole at the time the security interest attaches to the goods who has hot in writing consented to the security interest or disclaimed in interest in the goods as part of the whole.
(c) The security interests described in Subsections (a) and (b) do not take priority over
(1) a subsequent purchaser for value of any interest in the whole; or
(2) a creditor with a lien on the whole subsequently obtained by judicial proceedings; or
(3) a creditor with a prior perfected security interest in the whole to the extent that he makes subsequent advances if the subsequent purchase is made, the lien by judicial proceedings obtained or the subsequent advance under the prior perfected security interest is made or contracted for without knowledge of the security interest and before it is perfected. A purchaser of the whole at a foreclosure sale other than the holder of a perfected security interest purchasing at his own foreclosure sale is a subsequent purchaser within this section.

The paragraph in question in the Texas UCC is at Sec. (c)(3) where (3) ends with “advances”. In the National Code the next wording, “if the subsequent . . . ” begins another paragraph. (Emphasis supplied) In the Texas Code the wording, “if the subsequent . . . ” follows “advances” in the subsection (3) and thus appears to be a continuing part of (3). A reading of the paragraph beginning with “if the subsequent . . . ” clearly shows that it has reference to the preceding subsection, (1), (2) and (3) of Sec. (c). We interpret “if the subsequent purchase is made,” to refer directly to (1); “the lien by judicial proceeding obtained,” to refer to (2); and “the subsequent advance under the prior perfected security interest,” to refer to (3). The remainder of the questioned paragraph fixes the requirements for qualifying for an exception under subsections (1), (2) and (3). It is clear that appellee must not only prove that it is a subsequent purchaser for value of any interest in the whole, but that it perfected its security interest without knowledge of appellant’s security interest and before it was perfected. The record before us shows that appellant filed its UCC-1 with the Secretary of State on January 5, 1973, within ten days from the date of purchase of the refrigerator units, thus perfecting its lien. The purchase by appellee was not made until March 21, 1974. The very purpose of drafting article 9.314 as stated in the code comment was

1. To state when a secured party claiming an interest in goods installed in or affixed to other goods is entitled to priority over a party with a security interest in the whole.
2. This section changes prior law in that the secured party claiming an interest in a part (e. g., a new motor in an old car) is entitled to priority and has a right to remove even though under other rules of law the part now belongs to the whole

Appellee contends that under article 9.314(c)(1) it has to show only that it is “a subsequent purchaser for value of any interest in the whole,” unaffected by any of the restrictions imposed by the paragraph following (c)(3). If this contention were valid, no prior perfected interest could ever prevail against a subsequent purchaser for value of any interest in the whole, and the declared purpose of article 9.314 would be defeated. We have been unable to find any Texas case interpreting Sec. 9.314, nor has either party cited any such case. However, the Tennessee case of Mills-Morris Automotive v. Baskin, 224 Tenn. 697, 462 S.W.2d 486 (1971), is in point in every particular. In that case the plaintiff installed a wrecker bed on a truck chassis owned by a third party. On the same date, plaintiff recorded his financing statement showing its security interest with the Secretary of State, but no lien notation was made with the title division upon the title certificate of the truck on which the equipment was installed. Later the third party sold the truck with wrecker attached to the defendant, delivering to him a certificate of title which contained no notation of plaintiff’s lien. The defendant had no notice that plaintiff was claiming any interest in the wrecker attached to the truck. The Tennessee Supreme Court, citing its Sec. 47-9-314, Tenn. Code Ann., which carries the identical wording as our UCC 9.314, stated that:

In the case before us the wrecker body, though acquired by an innocent purchaser, was acquired after the date on which the financing statement was filed in the office of the Secretary of State. . ******
The wrecker did not become an accession to or an integral part of the truck and it was not necessary for the plaintiff to file a notice of the lien with the Title Division of the Department of Revenue in order to protect its lien. It is our opinion, therefore, that since the lien of the plaintiff was perfected before the sale of the truck to the defendant the lien has priority over the title that the defendant acquired by his purchase.

We sustain appellant’s points of error 8 and 10.

Having found that the refrigerator units were not accessions, we do not deem it necessary to discuss appellant’s points of error 3 and 13 except to point out that the Texas Supreme Court has held that the UCC and Certificate of Title Act are in pari materia and must be construed together. Associates Discount Corp. v. Rattan Chevrolet, Inc., 462 S.W.2d 546, 549 (Tex.1970). When the personal property is not a motor vehicle subject to the Certificate of Title Act, the UCC must be complied with and will control in case of any conflicts with the Title Act. UCC Sec. 9.302(a); Article 6687-1, Sec. 65, Certificate of Title Act. We do not find it necessary to rule on appellants’ other points of error.

The judgment of the trial court is reversed and judgment is rendered-for appellant, IDS Leasing Corporation, along with the award of all funds on deposit at Southern National Bank in account no. 034-380 in the amount of $17,500, together with any interest that may have accrued thereon.

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


source: Caselaw Access Project

author: WARREN, Justice.

license: Public Domain

text:
    Mary Ellen WALSH et al., Appellants, v. C. W. AUSTIN, Trustee, Appellee.
    No. 17457.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 25, 1979.
    Rehearing Denied Nov. 29, 1979.

      Baggett, Kirk, Gordon & Hodge, George D. Gordon, Houston, for appellants.
    Fred A. Lange, Houston, for appellee.
    Before EVANS, WALLACE and WARREN, JJ.
   WARREN, Justice.

Mary Ellen Walsh and Bridget O’Maho-ney appeal from a summary judgment awarding title and possession of certain lands to C. W. Austin, Trustee.

The primary issue is whether appellee proved his title by competent summary judgment proof.

Appellee filed a suit in trespass to try title to 395.1148 acres of land in Harris County, alleging in his first amended original petition that two five-acre tracts encompassed by his tract were being claimed by appellants, that the deed to appellants’ predecessor in title was void, and that he was entitled to title and possession under the 3, 5,10 and 25 year limitation statutes.

In September of 1978, appellee filed a motion for summary judgment, claiming limitations, prior possession and that the deed into appellants’ predecessor was void. In January 1979, the trial court granted the summary judgment.

Appellants claim that the trial court erred because (1) genuine fact issues existed; (2) plaintiff failed to foreclose all defenses appellant is entitled to under a plea of “not guilty”; (3) there were fact issues concerning whether appellants’ land was entirely surrounded by the land of appellee; (4) appellee failed to show that at least Vio of the land in question was cultivated; (5) appellee failed to show appellants’ deed was insufficient to locate the property on the ground; (6) appellee failed to show that appellants’ tract was located within the metes and bounds description of the land claimed by appellee; (7) the possession was not adverse for the required period; (8) appellee did not prove his title by a preponderance of the evidence; and (9) the court erred in considering a surveyor’s affidavit as conclusive evidence of the facts.

Since the judgment does not reveal the theory on which it was sustained, the judgment must be affirmed if any one of the grounds asserted was established as a matter of law. Rodgers v. Insurance Co. of the State of Pennsylvania, 513 S.W.2d 113 (Tex.Civ.App.-Ft. Worth 1974, writ ref’d n. r. e.).

After reviewing the record, it appears that if appellee is entitled to recover, it must be under the doctrine of prior possession. There was no proof of chain of title to support a claim under the 3 year statute, there was no proof of payment of taxes before they became delinquent, as reqliired by the 5 year statute, there was no proof of a holding under a deed or memorandum for the required time to satisfy the 25 year statute, and proof was insufficient to prove title under the 10 year statute. In support of his claim under the 10 year statute, ap-pellee presented his affidavit and the affidavit of Marvin Traweek, one of the appel-lee’s grantors.

The affidavit of Marvin Traweek asserts uninterrupted use and possession of fenced property by his grandfather and himself. He refers to an attached plat to show the location of the property and fences. The plat contained in the transcript (and the one filed in the trial court) are illegible. Even with a magnifying glass it is not possible to locate the objects referred to in the affidavit such as the location of the fences, the Schuck’s house, the Nacol Tract and Jackrabbit Road. Because of this, the affidavit is insufficient to establish the extent of possession, or fencing of a specific tract of land.

The affidavit of appellee specifically states that it is made on his own personal knowledge, but there are facts contained in it, such as the land being enclosed by a fence and subjected to continuous use by M. B. and Marvin Traweek as part of a dairy farm and for cattle grazing from 1939 until 1970, which would require a special knowledge and would require him to show the circumstances under which he learned or knew of these facts. Murfee v. Oquin, 423 S.W.2d 172 (Tex.Civ.App.-Amarillo 1967, writ ref’d n. r. e.). Other parts of appellee!s affidavit show that he would have been a small boy when the alleged possession by his predecessor commenced and that his schooling in preparation for his career as a lawyer would have removed him from the proximity of the land during his later teens and early twenties. Under these circumstances, the underlying facts should have been stated concerning his personal knowledge of these matters. The affidavit is insufficient to show fencing or possession by the Traweeks.

Summary judgment proof was insufficient to support a claim under the ten year statute. There are other defenses urged by appellants to the ten year statute which we need not consider.

PRIOR POSSESSION

Prior possession is a rule of evidence creating a presumption that one first in possession of land is presumed to be the owner unless the disturber proves a superi- or right.

A plaintiff in a trespass to try title action shows prima facie title when he shows possession prior to that under which defendant claims, with a regular chain of title connecting himself with such possession. Dean v. Grogan-Cochran Lumber Co., 58 S.W.2d 552 (Tex.Civ.App.-Beaumont 1933, no writ). To invoke the rule of prior possession, there must appear prior possession, exclusive dominion and the absence of a superior title in the opposing party. Massey v. Lewis, 281 S.W.2d 471 (Tex.Civ.App.-Texarkana 1955, writ ref’d n. r. e.).

Where a party has pled title by limitation, but fails to establish that claim, he may, nevertheless, in a proper case have judgment rendered in his favor by reason of prior possession of the property where his opponent has failed to establish a paper title to the land. 56 Tex.Jur.2d Trespass to Try Title, § 18 (1964). It is not necessary to plead prior possession. Whited v. Mullins, 515 S.W.2d 159 (Tex.Civ.App-Houston [1st Dist.] 1974, no writ). Prior possession carries with it a presumption of ownership interest against one having no title. Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243 (Tex.1964)

Appellee, in his affidavit, alleges that he bought the 395.1148 acres tract in 1970 and since that time it has been fenced and occupied by him through tenants. Actual possession to satisfy requirements of prior possession may be through agents or tenants. Corder v. Foster, 505 S.W.2d 645 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n. r. e.).

Appellants neither alleged not proved any possession, at any time, by themselves or their predecessors in title. The only basis of appellants’ claim of title is a deed to the two five-acre tracts is from C. W. Hall Co. to Catherine O’Leary, purporting to convey “Block 115 and 116 of Hahl’s Surburban Farms Subdivision D, according to the plat of same in Volume 5, page 8 of the Map Records of said County” (Harris) and is dated January 21, 1921. The plat recorded April 29, 1914, recites that the property is located in Section 13, H. & T.C. R.R. Co. Survey, Block 3, Harris County, Texas. The property shown by the plat is divided into blocks, roads are shown, named, and dedicated, and the amount of acreage in each block is shown. However, there are no directions, measurements, dimensions, or references to any survey, objects or monuments which would enable one to locate a block within the subdivision. To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land may be identified with a reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972). As a matter of law, the deed and original plat are insufficient to identify the land. Reference cannot be made to the corrected plat because it did not come into existence until approximately 20 years after the conveyance. See Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App.-Tyler 1969, no writ). Appellants have neither alleged nor suggested, either in the trial court or in this court, that their claim to title was based upon anything other than this void deed.

Appellee has shown by competent summary judgment evidence, peaceful and exclusive possession of the 395 acres for over five years. Indirectly, he has excluded the possibility of any possession by appellants or their predecessors in title for over thirty five years.

Appellee, having proved the deed to appellants’ predecessor in title void and having proved peaceful and exclusive possession under a deed regular on its face, is presumed to have superior right and title to the land as against appellants. Appellee proved a prima facie case entitling him to judgment by reason of prior possession. The only question remaining is whether ap-pellee had a duty to go further and foreclose all defenses appellants would be entitled to raise under their plea of “not guilty.”

The authorities are conflicting. In the case of Briggs v. Freeway Park Development Co., 366 S.W.2d 270 (Tex.Civ.App.-Ft. Worth 1963, writ ref’d n. r. e.) the court held, in part, that in ordinary trespass to try title suits where a defendant pleads “not guilty”, he is entitled to prove any defense available, legal or equitable, except that of limitation. Where the defendant pleads “not guilty” the burden is on the plaintiff, movant for summary judgment in a trespass to try title case, to show that the defendant has no such defense. Although the supreme court refused a writ of error, n. r. e., the same result would have been reached in the case premised upon another dispositive holding of the appellate court pertaining to the absence of necessary parties. The Briggs case was followed in Gage v. Owen, 396 S.W.2d 189 (Tex.Civ.App.-Ft. Worth 1965, no writ).

In Snider v. Forrest Lumber Co., 448 S.W.2d 130 (Tex.Civ.App.-Tyler 1969, no writ) the court held that where a plaintiff, movant for summary judgment in a trespass to try title case, establishes a prima facie case, the mere filing of a “not guilty” plea will not relieve the opponent of the obligation to produce evidence, nor does it create a burden on the movant to negate every conceivable defense which could be urged. We agree with and follow the Snider case.

The import of a not guilty plea is to give the defendant the right to introduce evidence of any defensive matter without the necessity of specifically or affirmatively pleading it. The defendant has this right both at a summary judgment hearing and at a full trial on the merits. Where, however, the plaintiff has established a prima facie case, whether it be at a summary judgment hearing or upon a full trial, the defendant then has the burden of introducing some defensive evidence to raise an issue of material fact in order to prevent the rendition of a summary judgment or an instructed verdict. See Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 at 500 (1958). In a trespass to try title summary judgment hearing, there is no valid reason for relieving the defendant of this burden and placing the burden on the plaintiff to prove the negative — i. e. the non-existence of' a meritorious defense.

One of the objects of summary judgment practice is to eliminate patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Hersh v. H. E. Butt Grocery Co., 338 S.W.2d 174 (Tex.Civ.App.-San Antonio 1960, writ ref’d n. r. e.). In 1977, subsection C of rule 166A was amend ed providing that issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. In City of Houston v. Clear Creek Basin Authority, 23 Tex.S.Ct.J. 7 at 12 (October 6, 1969), the supreme court stated that “the non-movant must now, in a written answer or response to the motion, expressly present to the trial court these issues that would defeat the movant’s right to summary judgment and failing to do so, may not later assign them as error on appeal.” A non-movant defendant waives a properly pled affirmative defense if he does not introduce evidence creating a fact issue. Gulf, Colorado & Santa Fe Ry. Co. v. McBride, supra.

We believe the rule promulgated in Snider is the better reasoned view because it comports with customary summary judgment practice while still affording the defendant the right to prove up any defense under the not guilty plea. If the Snider rule is not followed then a summary judgment will be rarely, if ever, granted in trespass to try title cases.

Appellants’ points of error regarding ap-pellee’s failure to show that appellants’ claimed tracts were within the larger tract claimed by appellee is overruled since this fact was pled by appellants and shown by an affidavit of Birch Kirk submitted as summary judgment proof by appellants.

The judgment is affirmed.


author: EVANS, Justice.

text:
    JACK CRISWELL LINCOLN-MERCURY INC., Appellant, v. William Preston HAITH et ux., Appellees.
    No. 17476.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1979.
    Rehearing Denied Dec. 13, 1979.

      Glenn Vickery, Houston, for appellant.
    Jefferson & Maley, Carnegie H. Mims, Jr., Houston, for appellees.
   EVANS, Justice.

This is a consumer fraud action involving the sale of an automobile. After a non-jury trial, judgment was entered for the plaintiffs. The defendant, an automobile dealer, brings this appeal.

In October, 1977, the plaintiffs purchased a 1977 Mark V Lincoln Continental from the defendant, believing the automobile to be new. During their test drive of the automobile, the plaintiffs noticed that the odometer read 669 miles, but upon making inquiry of the defendant’s salesman, they were advised that the true reading was 66.9 miles. The plaintiffs were furnished an odometer mileage statement, prepared by the defendant under federal regulations, which showed the odometer mileage to be 0066 miles. Several days following the sale, the plaintiffs noticed that the last digit on the odometer was not moving with each one-tenth of a mile. After an unsatisfactory telephone conversation with the defendant’s salesman, the plaintiffs contacted the fraud division of the police department and subsequently filed this suit.

The trial court found that the defendant had misrepresented the automobile’s mileage in violation of the Federal Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq., and the Texas Consumer Fraud & Deceptive Trade Practices Act, § 17.41 et seq., Tex.Bus. & Com.Code Ann., and that the defendant had also violated the Texas Motor Vehicle Installment Sales Act, Article 5069-7.01 et seq., Tex. Rev.Civ.Stat.Ann., by requiring the plaintiffs to purchase credit life and credit health insurance and including the cost of such policies in the retail, installment contract without specifying the terms and coverage of the insurance to be provided.

The trial court entered judgment for the plaintiff in the total sum of $13,014.00, such sum representing the amount of $1500.00 awarded as damages for the defendant’s violation of the Federal Motor Vehicle Information and Cost Savings Act, the amount of $10,539.00 ($3513.00 trebled) awarded as damages for the defendant’s violation of the Texas Consumer Fraud and Deceptive Trade Practices Act, and the amount of $975.00 awarded as attorneys fees. The trial court also found that the plaintiffs were entitled to recover the maximum amount of damages, attorneys fees and court costs for the defendant’s violation of the Texas Motor Vehicle Installment Sales Act, but it concluded that a recovery was not authorized under that statute because of the award of damages under 15 U.S.C. § 1981, et seq., and § 17.41 et seq., Tex.Bus. & Com.Code Ann.

•The defendant’s first three points question the legal and factual sufficiency of the evidence to support the trial court’s finding of an intent to defraud under the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq. This statute, in pertinent part, provides:

§1981. Congressional findings and declaration of purpose
The Congress hereby finds that purchasers, when buying motor vehicles, rely heavily on the odometer reading as an index of the condition and value of such vehicle; that purchasers are entitled to rely on the odometer reading as an accurate reflection of the mileage actually traveled by the vehicle; that an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability; and that motor vehicles moved in the current of interstate and foreign commerce or affect such commerce. It is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers.
§1983. Unlawful devices causing odometer to register mileage other than true mileage driven
It is unlawful for any person to advertise for sale, to sell, to use, or to install or to have installed, any device which causes an odometer to register any mileage other than the true mileage driven. For purposes of this section, the true mileage driven is that mileage driven by the vehicle as registered by the odometer within the manufacturer’s designed tolerance.
§1984. Unlawful change of mileage indicated on odometer
It is unlawful for any person or his agent to disconnect reset, or alter the odometer of any motor vehicle with the intent to change the number of miles indicated thereon.
§1988. Disclosure requirements upon transfer of ownership of motor vehicle; promulgation of rules; violations
. (a) Not later than 90 days after October 20, 1972, the Secretary shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:
(1) Disclosure of the cumulative mileage registered on the odometer.
(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled. Such rules shall prescribe the manner in which information shall be disclosed under this section and in which such information shall be retained.
(b) It shall be a violation of this section for any transferor to violate any rules under this section or to knowingly give a false statement to a transferee in making any disclosure required by such rules.
§1989. Sets forth the extent of civil liability for a violation of the statute:
(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in any amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.

In enacting § 1981, et seq., it was obviously the intent of Congress to prohibit fraud in the sale of automobiles by altering or tampering with a vehicle’s odometer to show other than the actual amount of mileage traveled or by failing to reveal that the odometer did not reflect the actual mileage. In the case at bar it is not contended that the odometer registered other than the actual mileage, and the plaintiffs contend only that the defendant misrepresented the meaning of figures shown on the odometer. Thus, the provisions of § 1981 et seq. do not apply to the facts of this case, and the evidence is insufficient to support a finding of intent to defraud within the contemplation of the statute.

In its remaining points of error the defendant contends that the evidence is legally and factually insufficient to support the trial court’s finding of damages in the amount of $3315.00 under the Texas Consumer Fraud and Deceptive Trade Practices Act. Under these points the defendant argues that the testimony regarding the automobile’s value was improperly premised upon the car being valued as a “used” vehicle.

The defendant contends that the automobile must be considered a “new motor vehicle” under the provisions of the Texas Motor Vehicle Commission Code, which defines a new motor vehicle as one which has not been the subject of a retail sale. Article 44i3(36) § 1.03(2) Tex.Rev.Civ.Stat.Ann. The defendant’s new car sales manager testified that there would be no difference in value between a 1977 Lincoln Continental Mark V automobile with 66 miles and a similar vehicle with 666 miles if both vehicles were owned by a dealer and were sold on a manufacturer’s certificate and covered by a 12,000 mile warranty. He testified that the automobile in question was sold on such a certificate and warranty as a new vehicle.

The trial court was not bound to accept the testimony of the defendant’s employee with respect to the value of the automobile in question. The plaintiff’s witness testified that he considered an automobile with 660 to be a used vehicle and stated that, in his opinion, a 1977 Lincoln Continental Mark V, equipped with the same options as the subject automobile, had a retail value of $11,050. Thus, there is testimony from which the trier of facts could have determined that such sum represented the automobile’s market value at the time of sale.

The correct measure of damages in a case of this nature is the difference between the amount actually paid by the defrauded party and the actual market value of the item bargained for at the time of purchase. SobeI v. Jenkins, 477 S.W.2d 863 (Tex.1972). The plaintiffs’ actual damage in the case at bar was subject to determination by taking the difference between the cash price paid by the plaintiffs for the automobile ($12,517.27) and the cash market value at the time of sale ($11,050.00), resulting in the sum of $1467.27. Under the statute the plaintiffs were entitled to have such amount trebled, so that judgment should have been rendered for the sum of $4,401.81. Under § 17.41 et seq., Tex.Bus. & Com.Code Ann. The trial court’s judgment under § 17.41 et seq., in the amount of $10,539.00 is therefore, excessive in the amount of $6,137.19, and its judgment will be modified to provide for a recovery of the sum of $4401.81.

The plaintiffs by cross-point complain that the trial court erred in refusing to grant a recovery of damages based upon its finding of a violation of the Texas Motor Vehicle Installment Sales Act, Article 5069-, '7.01 et seq., Tex.Rev.Civ.Stat.Ann. Section 8.01(b) of this statute provides:

(b) Any person who violates this Subtitle or Chapter 14 of this Title by (i) failing to perform any duty or requirement specifically imposed on him by any provision of this Subtitle or Chapter 14 of this Title, or by (ii) committing any act or practice prohibited by this Subtitle or Chapter 14 of this Title, shall be liable to the obligor for a penalty in an amount equal to twice, the time price differential or interest contracted for, charged, or received but not to exceed $2,000 in a transaction in which the amount financed is $5,000 or less, and not to exceed $4,000 in a transaction in which the amount financed is in excess of $5,000 and reasonable attorney’s fees fixed by the court.

The defendant has not challenged the trial court’s findings of violations under this statute, and the plaintiffs are entitled to the statutory recovery unless precluded by reason of the award of damages under the Deceptive Trade Practices — Consumer Protection Act. That statute specifically provides:

“The provisions of this subchapter are not exclusive. The remedies provided in this subchapter are in addition to any other procedures or remedies provided for in any other law . . . ” § 17.43, Tex. Bus. & Com.Code Ann.

The statutory remedies set forth in the two statutes are not inconsistent or in conflict with one another, and the plaintiffs are entitled to recover under each of the two statutes for the separate violations found by the court. The defendant’s cross-point complaining of the trial court’s denial of its recovery under the Texas Motor Vehicle Installment Sales Act is therefore granted.

The trial court’s judgment is reversed and judgment is here rendered that the plaintiff take nothing with respect to their action based upon the Federal Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981, et seq. The trial court’s judgment is modified with respect to the plaintiff’s recovery under the Deceptive Trade Practices Consumer Protection Act, § 17.41 et seq., Tex.Bus. & Com.Code Ann., and the Texas Motor Vehicle Installment Sales Act, Article 5069-7.01 et seq., Tex. Rev.Civ.Stat.Ann., so that the plaintiffs are awarded judgment against the defendant in the total sum of $9376.81, such sum representing the award of damages in the amount of $4401.81, under § 17.41 et seq., Tex.Bus. & Com.Code Ann., the award of damages in the amount of $4000.00 under 5069-7.01 et seq., Tex.Rev.Civ.Stat.Ann., and attorneys fees in the amount of $975.00, such total sum to bear interest at the rate of 9% per annum from and after the date of the trial court’s judgment.

WARREN and WALLACE, JJ., also sitting.


author: MOORE, Justice.

text:
    James Rickey LITTLE, Appellant, v. Patsy Ann LITTLE, Appellee.
    No. 1280.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 8, 1979.

      Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.

      John Robert Adamson, Jacksonville, for appellee.
   MOORE, Justice.

This is an appeal from an order of the trial court modifying visitation rights of appellant. Appellee brought this suit to modify the divorced husband’s access to his minor child, whose managing conservator-ship is vested in appellee. Testimony was presented before the court without a jury. The trial court entered a judgment modifying the visitation rights of appellant, from which judgment appellant duly perfected this appeal.

We affirm.

The Littles were divorced on August 19, 1976. In that decree, the court appointed Patsy Ann Little, appellee in this case, to be managing conservator of the child, Stacy Ray Little. Appellant, James Rickey Little, was appointed as the possessory conservator of the child. The decree outlined the father’s right to visitation as follows: (1) possession on the third weekend of each month; and (2) possession of the child from June 1 through August 15, except that the mother of the child would have possession of him during this period of time on the third weekend of each month. The present action was filed February 10, 1978. The mother-appellee sought to have the father-appellant’s summer visitation rights reduced from ten weeks to two weeks, leaving the one monthly weekend possession by the father the same. In support of her motion, the mother testified that at the time of the previous decree, the boy, age eight, was too young to participate in various summer activities. She testified that the boy, age ten at the time of trial, was now old enough to participate in the activities, and that the long, summer possession by the father disrupted the latter part of the child’s little league baseball activities and caused him to miss the first part of the fall football program. She further testified that he was prevented from attending church camp. In response, the father testified that he was able to get his son into the baseball program where he lived and that much of the problems stated by the mother were self-made.

The trial judge modified the father’s visitation rights and allowed him access to the child as follows: (1) possession of the child one weekend each month with not less than ten days prior notice to the mother; (2) possession from June 23 through August 7 of each year; (3) possession from December 25 until December 30 of each year; (4) possession every other Easter holiday period from the Thursday preceding Easter until Easter Sunday; (5) possession during every other Thanksgiving holiday from the Wednesday preceding Thanksgiving until the following Sunday; and (6) possession at all other reasonable times and places as the parties may agree upon.

The trial judge stated in the findings of fact that: (1) it would be detrimental to the well-being of the child if he were not permitted to participate in the educational, recreational, and religious activities at his place of residence with his mother; and (2) it would be a positive improvement in the recreational, educational, and religious program of the child, and in the best interest of the child to modify the conditions of access of the father. The court, in its conclusions of law, stated that: (1) the circumstances of the child, his mother, and his father have substantially and materially changed since the prior divorce decree; (2) it would be in the best interest of the child and a positive improvement to the program of visitation and access to modify the conditions and terms of the father’s access to the child; (3) it would be a positive improvement to the physical, educational, and emotional well-being of the child to modify the terms and conditions of the access of the father; and (4) it would be detrimental to the well-being and not in the best interest of the child if the conditions of access of the father were to remain as set forth in the original decree.

Appellant, by his first point of error, contends that the trial court erred in finding that there was a material and substantial change in conditions since the entry of the divorce decree because there is no evidence to support such findings. Alternatively, appellant contends by his second and third points that such findings are against the great weight and preponderance of the evidence, and that the evidence is factually insufficient to support the court’s findings.

In determining the “no evidence” point, we are required to consider only that evidence and those inferences that will support the court’s findings in a light most favorable to such findings, and must reject all evidence and inferences contrary to the findings of the trial court. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). On the other hand, appellant’s alternative points require this court to consider all the evidence in the record, including that which is contrary to the verdict. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

Appellant argues that the trial court erred in changing his visitation privileges because the evidence fails to establish the statutory requisites necessary before the court is authorized to modify visitation rights. Section 14.08(c) of the Texas Family Code provides:

“After a hearing, the court may modify an order or portion of a decree that:
(2) . . . sets the terms and conditions for access to or possession of a child . .' . if the circumstances
of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree . . . .”

Tex.Fam.Code Ann. section 14.08(c) (Vernon Supp.1978-79) (Emphasis ours). The court must also consider section 14.07(a), which provides: Tex.Fam.Code Ann. section 14.07(a) (Vernon 1975) (Emphasis ours). Thus, the code requires that there must be a showing of a material and substantial change of circumstances as to either the child or any person affected by the order, and second, that a change or modification of the prior order would be in the best interests of the child. Files v. Thomasson, 578 S.W.2d 883, 884 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ).

“The best interest of the child shall always be the primary consideration of the court in determining questions and managing conservatorship, possession, and support of and access to the child. . . ”

We are of the opinion that the change of age of the child, when taken together with other circumstances shown in the record, warranted a modification of the former decree. As the court found, the child was only eight years old at the time of the original decree and was too young to participate in any summer activities. Now, there are many activities available to him. It is important to a child of his age to be able to fully participate in sport activities with his classmates and friends in the town in which he attends school. In order to become a part of the team, it would be necessary for him to participate in all of the training activities. Under the former decree this would not have been possible. The trial judge modified the previous summer visitation period so that he could participate more fully in the sport activities at the school he attended. To compensate for the four week loss in visitation rights of the father, the trial judge repudiated the mother’s right of access to the child during the summer period in which the father had the child, created a set schedule of visitation rights for the holiday periods of Easter, Thanksgiving, and Christmas, and allowed for possession by the father at all other times that the parties might agree upon. In light of these facts, we have concluded that there is some evidence of probative force to support the trial court’s finding. After a review of the entire record, we find that we cannot agree with appellant’s contention that the court’s findings are against the overwhelming weight and preponderance of the evidence or that the evidence is factually insufficient to support such findings. Points one through three are overruled.

Appellant’s last three points of error state that the trial court erred in finding the visitation rights as originally decreed would at the present time be injurious to the welfare of the child and that the reduction of the visitation rights would be á positive improvement for the child because there is no evidence to support such findings. Appellant claims alternatively that such findings are against the great weight and preponderance of the evidence, or that the evidence is factually insufficient to support the court’s findings.

As stated earlier, before the trial court can modify an existing decree, the court must find that the circumstances of the child or a person affected by the prior order have materially and substantially changed, and that a change or modification of the prior order would be in the best interests of the child. Once the trial court makes these findings, however, the question of the extent of the access or visitation privileges is a matter that is left to the sound discretion of the trial court. The trier of fact is in a better position than the appellate court to determine the extent and duration of access privileges that will be in the best interest of the child since the trial judge faces the parties and their witnesses, observes their demeanor, and has the opportunity to evaluate the claims made by the parties, all of which are difficult to accurately weigh and determine by the mere reading of the statement of facts. The trial court determined that it would be in the best interest of the child to reduce the length of appellant’s summer visitation privileges from ten weeks to six weeks. Appellant does not complain of the remaining visitation privileges set by the court.

The determination of access privileges being within the discretion of the court, the court’s ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. In our view, no abuse of discretion is shown.

We have concluded that there is some evidence of probative force to support the finding that the visitation rights as they existed would be injurious to the child and that a reduction in those rights would be a positive improvement. Further, after weighing and balancing all of the evidence, we find that we cannot agree with appellant’s contention that the judgment is against the overwhelming weight and preponderance of the evidence or that the evidence is factually insufficient to support the judgment.

The judgment of the trial court is affirmed.

SUMMERS, C. J., not sitting.


text:
    Morris FUSELIER, Jr., Appellant, v. DOW CHEMICAL COMPANY and Buzzini Drilling Company, Appellees.
    No. 17485.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 8, 1979.
    Rehearing Denied Dec. 13, 1979.

      Jamail & Kolius, Richard Warren Mi-thoff, Jr., Houston, for appellant.
    Vinson & Elkins, John T. Golden, Fulbright & Jaworski, Frank G. Jones, Martin, Sperry & LeBoeuf, Jack R. Martin, Houston, for appellees.
   WARREN, Justice.

This is an appeal from a take-nothing judgment in a personal injury case. The question to be decided is whether the court erred in refusing to admit into evidence as an admission portions of a brief submitted by appellee’s counsel on a previous appeal of the venue determination in this case.

Appellant, an employee of Joe’s Rental Tools, was injured while working on a drilling rig in DeWitt County. He sued Dow Chemical and appellee in Harris County, and sought to maintain venue in Harris County under Subdivision 4, Article 1995. Under this subdivision, a plaintiff must show that the residence of one of the defendants is in the county where suit is filed, that he has a cause of action against the resident defendant, and that the other defendant is a proper party to the suit. The trial judge found that Dow Chemical Company was a resident of Harris County, and that its negligence was a proximate cause of the injuries to appellant, which proof entitled it to maintain venue in Harris County against Dow and appellee.

On the venue appeal, appellee’s (Buzzini) counsel argued in its brief that the evidence at the hearing did not prove negligence against Dow Chemical and stated:

“In point of fact, all of the testimony indicated that the reason for the occurrence of the accident was due to the lowering of the casing by the draw works operator (a Buzzini employee) at too rapid a rate, and there is no testimony to support any finding or conclusion as to lack of visibility contributing to this incident, nor is there any evidence that a warning to the stabber (the plaintiff, Mr. Fuselier) by Mr. Munger (a Dow employee) or anyone else would have prevented the accident as Mr. Fuselier indicated that he observed the swinging, had moved back as far away as he could but not far enough away to avoid the injury.”

The gist of the statement was that the evidence at the hearing on the plea of privilege showed no negligence against Dow (or appellant), but instead indicated negligence against Buzzini, the non-resident defendant. Appellant urges that the statement should have been admitted as an admission of the defendant, as a judicial admission, or as a prior inconsistent statement.

An admission has been defined as “any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not now as he claims.” Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963).

As evidence, admissions by a party are a two-pronged assault on the admitter’s case. As a true exception to the hearsay rule, they prove the truth of the facts admitted, and since by definition they are inconsistent with the admitter’s testimony at trial, they tend to impeach his credibility. Hartford Accident and Indemnity Co. v. McCardell, supra, citing Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958) and 2 McCormick and Ray, Texas Law of Evidence, § 1121.

In civil cases, the admissions by an attorney in regard to matters as to which he is authorized to represent his client are receivable against the client. Porter v. Thalman, 516 S.W.2d 755 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.).

The prior statement made , by appel-lee’s counsel concerned the quantity and quality of the evidence admitted at the venue hearing; it did not admit either that it was negligent or that its adversary was not negligent. Whether appellant sought to introduce the prior statement as an admission to be used as probative evidence or as a prior inconsistent statement for impeachment, it was not admissible.

The trial court did not err in refusing to admit the prior statement.

The judgment is affirmed.

PEDEN and EVANS, JJ., also sitting.


author: MURRAY, Justice.

text:
    In the Matter of M. L. S., Appellant.
    No. 16376.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 14, 1979.
    R. H. Wester, Jr., Lippe, Klingemann & Wester, P. C., Seguin, for appellant.
   OPINION

MURRAY, Justice.

This is an appeal from an order of the 25th Judicial District Court of Guadalupe County, sitting as a juvenile court, revoking the probation previously granted to the child, M.L.S., in this cause, making a final finding of delinquent conduct, and committing the child to the care, custody, and control of the Texas Youth Council. The judgment of the trial court is challenged on the ground that the trial court erred in failing to provide appellant’s counsel with ten days in which to prepare for a hearing on the State’s petition to revoke probation. We sustain appellant’s point of error.

The State filed no brief in this case; therefore, the statements made by appellant in his brief concerning the facts and the record are accepted by this court as correct. See Tex.R.Civ.P. 419.

On March 27, 1978, M.L.S. was declared a delinquent child and was placed on probation and ordered to pay restitution in the amount of $335. At a subsequent hearing held on July 26,1978, the court ordered that the child’s probation be extended for a period of one year, that the previously ordered restitution of $335 was to be payable in the amount of $20 per month, and that the child be required to attend counseling sessions as directed by the probation officer at the expense of the family. On May 14, 1979, the State filed a petition for hearing to modify disposition alleging that the child had violated certain conditions of his probation. An order was entered by the court setting a hearing on the petition for revocation of probation to be held on May 24, 1979. This order was served on the child and his mother on May 18,1979. The attorney for M.L.S. appeared on May 24, 1979, and filed an original’ answer to the State’s petition for hearing to modify disposition and a motion for ten days to prepare for adjudication hearing as provided in Section 51.10(h), Texas Family Code. No action was taken on the motion for ten days to prepare for adjudication hearing. On May 24, 1979, the court entered an order revoking probation and committing the child to the custody of the Texas Youth Council. One week later, appellant’s attorney timely filed a motion for new trial alleging that the court erred in failing to afford him ten days’ notice in which to prepare for the adjudication hearing. Subsequently, the court overruled the motion for new trial and M.L.S. has perfected an appeal to this Court.

Section 51.10(h) provides: “[a]ny attorney representing a child in proceedings under this title is entitled to ten days to prepare for any adjudication or transfer hearing under this title.” Tex.Fam.Code Ann. § 51.10(h) (Vernon 1975). Section 51.09(a) provides a procedure by which certain rights given to a child can be waived. See Tex.Fam.Code Ann. § 51.09(a) (Vernon Supp.1978 — 1979).

It is undisputed that the right to a ten-day preparation period was not waived in the manner prescribed by Section 51.09(a). This time period has been held to apply when the State seeks to revoke the probation of a juvenile delinquent. See Franks v. State, 498 S.W.2d 516, 518 (Tex.Civ.App.-Texarkana 1973, no writ); cf. In re Faubus, 498 S.W.2d 21, 23 (Tex.Civ.App.— Amarillo 1973, no writ) (counsel entitled to ten days to prepare for hearing to determine whether minor is a delinquent child).

The judgment of the trial court is reversed and the cause is remanded to the trial court and M.L.S. is ordered released from the custody of the Texas Youth Council.


text:
    W. Douglas STINE and First City National Bank of Houston, Independent Co-Executors of the Estate of Joe C. Stine, Deceased, Appellants, v. Dana Sue STINE, Appellee.
    No. 17469.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1979.

      Dohoney, Collier, Cartwright & Wandel, N. Wyatt Collier, Houston, for appellants.
    Able & Coleman, Tom F. Coleman, Jr., Houston, for appellee.
   EVANS, Justice.

This action was originally brought by Joe C. Stine, one of 20 employee participants in a group annuity contract issued by California Western State Life Insurance Company under a contract between Joe C. Stine, Inc. and The Rucker Company. In his original petition Stine named California Western and The Rucker Company as defendants and sought a declaratory judgment with respect to the benefits due him under the annuity contract, injunctive relief incidental thereto, and, alternatively, a money judgment for paid-in premiums held in the pension plan fund.

Stine died during the pendency of this action, and his independent executors were substituted as parties plaintiff. His former wife, Dana Sue Stine, then intervened, filing a cross-action against The Rucker Company and California Western. At the time of trial, the original defendants, California Western and The Rucker Company, paid into the registry of the court the sum of $97,291.64, representing Stine’s retirement benefits under the contract. Dana Sue Stine was then designated as plaintiff and the co-executors of Stine’s estate as defendants for determination of the remaining issues in dispute: (1) whether the beneficiary card designating Dana Sue Stine as the beneficiary of Stine’s death benefits was a forgery; (2) whether Joe C. Stine, prior to his death, became vested with ownership of the contract proceeds, thereby extinguishing the rights of Dana Sue Stine under the beneficiary designation.

The jury found that the signature of Joe C. Stine on the beneficiary card was not a forgery, and the trial court entered judgment in favor of the plaintiff, Dana Sue Stine, for the amount on deposit in the court’s registry. The defendants, co-executors of the estate of Joe C. Stine, deceased, bring this appeal.

In their first four points of error the defendants challenge the sufficiency of the evidence to support the jury’s findings on the forgery issue, contending that the trial court erred in overruling their motion for judgment notwithstanding the verdict.

A point of error complaining that the trial court erred in denying a motion for judgment n. o. v. challenges only the legal sufficiency of the evidence even though the point may contain terms complaining that the evidence is insufficient to support the jury’s finding or is against the great weight and preponderance of the evidence. Chemical Cleaning, Inc. v. Chemical Cleaning Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970); Schad v. Williams, 398 S.W.2d 603 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). Similarly, a point of error com plaining that the trial court erred in denying a motion for judgment n. o. v. because an ultimate fact was established by the undisputed evidence, asserts that there is no evidence to the contrary. Royal Indemnity Company v. Hume, 477 S.W.2d 683 (Tex. Civ.App.—San Antonio 1972, no writ). The defendants first four points of error will therefore be treated as “no evidence” points, challenging only the legal sufficiency of the evidence.

In considering points challenging the legal sufficiency of the evidence, this court will consider only that evidence which, when viewed in its most favorable light, tends to support the jury’s finding, and it will disregard all evidence leading to a contrary conclusion. Lee v. Lee, 424 S.W.2d 609 (Tex.1968). Thus, if there is probative evidence supporting the finding of the jury, the defendant’s points of error must be overruled.

There is testimony in support of the jury’s finding that the signature of Joe C. Stine on the beneficiary card was not a forgery. Several witnesses testified that the signature appeared to be in the handwriting of the decedent, and although there was some testimony to the contrary, the jury was entitled to believe that the signature on the beneficiary card was that of Joe C. Stine. It was for the jury to resolve any contradictions or inconsistencies in the testimony and to judge the credibility of the witnesses and the weight to be given their testimony. Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.) This court may not pass upon the credibility of witnesses or substitute its findings for those of the trier of fact. Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681 (1944). The defendants first four points of error are overruled.

In their fifth point of error, the defendants contend that the trial court erred in overruling their motion for judgment notwithstanding the verdict because the evidence conclusively establishes that Joe C. Stine, prior to his death, became vested with the proceeds of the group annuity contract.

Under this point the defendants first argue that Stine’s employment by Joe C. Stine, Inc. was terminated on April 30, 1970, when its assets were acquired by a successor company, Houston Systems Manufacturing Company, and that when Joe C. Stine brought this action on December 14, 1973, against California Western and The Rucker Company, his action constituted an unqualified demand for return of premiums paid in under the contract. The defendants contend that this action gave Joe C. Stine the right, under the contract, to compel payment of the paid-in premiums and that such right belonged to Stine at the time of his death.

The group annuity contract provides that employment terminates upon the “cessation of active service with the employer”. The word “employer” is defined as “Joe Stine, Inc., or its successor.” Upon the termination of a participant’s employment for some reason other than death or retirement, he was entitled under the terms of the contract to demand return of the paid-in premiums, but so long as his employment continued, he was not entitled to terminate the contract or to demand the return of the paid-in premiums. It is undisputed that Joe Stine, Inc. was succeeded by Houston Systems Manufacturing Company and that Joe C. Stine continued his employment with the latter company, acting as its President until his death. Therefore, there was no cessation of Stine’s active service with his employer prior to his death.

The defendants rely upon the case of Pan American Life Ins. Co. v. Garrett, 199 S.W.2d 819 (Tex.Civ.App.—El Paso 1946 no writ), in support of their position that the transfer of assets from the J.V.C. Corp. to Houston Systems Manufacturing Company constituted a termination of the employment relationship. In that case the terms of an insurance policy issued on lives of the employees of a certain company provided for the termination of the policy coverage with respect to any employee whose employment with the company was terminated. The court in that case held that the employees’ employment status was terminated under the terms of the insurance policy upon the sale of the employer’s assets to another company. The facts in Pan American Life are distinguishable from the circumstances in the case at bar. In the case before this court, the group annuity plan designated each employee participant by name, and the terms of the plan continued in effect as to each employee notwithstanding a succession in ownership of the corporate assets.

The defendants also contend that the original group annuity contract was terminated on January 27,1972, by reason of a transfer of all the contract funds from California Western to The Rucker Company and the delivery of a release from Rucker to California Western. The defendants argue that the rights of the plaintiff under the beneficiary card were those of a contingent beneficiary and that such rights were extinguished by this transaction because it effectively nullified the annuity contract.

The record reflects that in August 1967, Joe C. Stine, Inc. was succeeded by J.V.C. Corp., a subsidiary of The Rucker Company, and that about three years later J.V.C. Corp. contracted to sell the assets of Joe C. Stine, Inc. to Houston Systems Manufacturing Corp. In connection with this transaction, a group retirement annuity contract, bearing the same contract number as the earlier contract, was issued by California Western to J.V.C. Corp. effective May 1, 1970. All of the funds that had accrued under the initial contract were transferred to the subsequent contract fund, and Joe C. Stine was listed as one of the participants in such fund. Subsequently, the administration of the group annuity contract was transferred from California Western to the Bank of America, and all of the initial funds deposited, plus accrued interest, and less payments made to beneficiaries, were transferred to the new administrator.

The release agreement executed by the J.V.C. Corp. (formerly Joe C. Stine, Inc.) and The Rucker Company in favor of California Western expressly states that the annuity fund was transferred to the Bank of America, as trustee of the Joe Stine, Inc. pension plan, “for the benefit of participants or their beneficiaries” participating under the terms of the group annuity contract. Thus, it is evident from the face of document itself that the transaction merely effected a change in the administrator of the contract fund and that the transfer of such funds to the new administrator did not, under the amended plan, constitute a termination of the contract between the administrator and the participants.

The trial court’s judgment is affirmed.

PEDEN and WARREN, JJ., also participating.


author: PEDEN, Justice.

text:
    STAR HOUSTON, INC., Appellant, v. Gordon L. BLOOMFIELD et al., Appellees.
    No. 17517.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1979.

      Hagerman, Seureau & Nuffer, Inc., John D. Hagerman, Margaret L. Brittain, Houston, for appellant.
    Ragan, Russell & Rorschach, John L. Russell, Richard Rorschach, Houston, for appel-lees.
    Before PEDEN, EVANS and WARREN, JJ.
   PEDEN, Justice.

Star Houston, Inc., plaintiff below, appeals from an order sustaining Gordon L. Bloomfield’s plea of privilege and transferring the cause of action against Bloomfield to Hidalgo County, where he resides. Star relies on Subdivisions 4,'5(a), 7, and 9 of Article 1995, Vernon’s Tex.Civ.Stat., to hold venue in Harris County and challenges the verification of the affidavit attached to Bloomfield’s plea of privilege. We find that the appellant met the requirements of Subdivision 4, so we reverse and render.

Star is an automobile dealership operating in Houston, Harris County. Bloomfield and William 0. Wells twice went together to Star’s showroom to look for a car for Bloomfield; after the second visit Bloomfield returned to his home in McAllen, Hi-dalgo County. A few days later, Wells returned to Star, where he purchased one of the automobiles the two men had looked at earlier. Wells signed Bloomfield’s name to the sales agreement and title application, but in payment for the car he executed a draft for $10,750 in his own name on the Industrial State Bank of Houston. Before delivering the car to Wells, Star’s sales representative telephoned Bloomfield in McAl-len and verified that Wells was authorized to pick up the car. Wells delivered the car to Bloomfield in McAllen for $6,250 in cash, telling him that was the full price.

Star subsequently presented the draft to Industrial State Bank, but it was dishonored. At the request of Wells, the draft was presented a second time and was again dishonored. Wells then offered by telephone to give Star money or a cashier’s check to cover the purchase price, but Star refused to accept either, demanding instead the return of the car. At the time of the hearing on Bloomfield’s plea of privilege, Star had regained possession of the automobile, but Bloomfield apparently still had title in his name.

Star filed suit in Harris County against Bloomfield, Wells, Industrial State Bank, and the Texas Highway Department. After sustaining Bloomfield’s plea of privilege to be sued in Hidalgo County, the trial judge made findings of fact and conclusions of law.

In its first point of error, Star attacks the trial court’s conclusion that the case does not come within the exception of Subdivision 4 of Article 1995, which provides that if two or more defendants reside in different counties venue is proper in any county where one of the defendants resides. Star contends that it has proven all the necessary venue facts in order to come within the exception and that the trial court’s findings to the contrary are against the great weight of the evidence or, alternatively, were based on no evidence at all.

The three venue facts which Star must establish in order to invoke Subdivision 4 are:

(1) proof that one defendant resides in the county of suit;
(2) proof by a preponderance of the evidence that the plaintiff has a cause of action against the resident defendant; and
(3) an allegation of a joint cause of action against the resident and non-resident defendants or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits. This third element is often stated: “the party asserting his privilege is at least a proper party to the claim against the resident defendant.”

Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956); 1 McDonald, Texas Civil Practice 434, Venue § 4.10.2.

It is undisputed that Wells is a resident of Harris County, and the trial court found that Star has “a cause of action” against him. However, the trial judge found that that cause of action was not a joint one against Bloomfield, and he found that such cause and the one against Bloomfield were not so intimately connected as to satisfy the requirements of Subdivision 4 and hold venue in Harris County.

As the appellee has pointed out, each element of the cause of action against Wells must be pleaded and proven. Although the court did not indicate the nature of the cause of action proven against Wells, Star apparently assumes that the trial judge was referring to the cause of action for fraud alleged by Star against Bloomfield and Wells in its second amended original petition, the pleading which was current at the venue hearing. Star’s complaints are directed to the finding that the two claims were not properly joinable.

The Supreme Court of Texas stated in Stone v. Lawyers Title Insurance Corporation, 554 S.W.2d 183, 185 (1977), the essential elements of actionable fraud:

(1) that a material misrepresentation was made;
(2) that is was false;
(3) that when the speaker made it he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion;
(4) that he made it with the intention that it should be acted upon by the party;
(5) that the party acted in reliance upon it;
(6) that he thereby suffered injury.

As was noted above, Star must prove by a preponderance of the evidence each of these elements in order to satisfy the requirements of Subdivision 4.

The basis of Star’s claim of fraud is that Wells and Bloomfield induced it to part with the automobile by falsely representing that they would pay for it. Star does not allege that anyone ever stated in so many words that the draft was good when executed, but it is clear that the effect of the words and actions of Wells implied that the draft would be honored and that Star would receive payment in return for surrendering the car.

The record reflects—and Bloomfield does not here dispute—that Wells made an implied representation that Star would be paid, a representation which was undoubtedly material under the circumstances; that the representation was false because Star was not paid; that Star acted in reliance on that representation in surrendering the car to Wells; and that Star suffered injury thereby, namely loss of its property. Moreover, one may assume for these purposes, without deciding, that when Wells offered Star the draft he intended by so doing to induce Star to part with the car. The remaining element is: Star must show that Wells knew when he offered the draft that it would not be honored and that Star would not be paid.

Wells admits that when he executed the draft he knew that he did not have sufficient funds on deposit to cover it. He has also testified three times that he believed he had the funds available to him through other sources and once that he in fact had them. Wells’s assertions that he initially believed he would be able to cover the draft, while uncontradicted, are those of a party, and they are not so clear, positive and direct that they must be accepted.

Wells has offered no explanation of his operation: he gave Star a $10,750 draft for the car, then delivered it to Bloomfield for $6,250, telling Bloomfield that was the full price. There was evidence indicating that Wells was simply engaging in a fraudulent scheme by which he obtained $6,250. He spent the $6,250 and has not reimbursed Bloomfield or covered any part of the draft. The trial judge was entitled to conclude, despite the denials of Wells, that when he gave the draft to Star he knew it would never be honored.

Even if the evidence did not support the trial court’s finding that the plaintiff has a cause of action against Wells, the matter has not been preserved for appellate review by a point of error. We find that Star did not prove any other cause of action against Wells that Star had alleged in its current pleading.

We next consider the appellant’s point that the trial court erred in finding that the cause of action against Wells is not a joint cause of action against Wells and Bloomfield and that the cause against Wells is not so intimately connected with the cause of action against Bloomfield that they are properly joinable to prevent a multiplicity of suits.

The plaintiff’s second amended petition, its current pleading at the venue hearing, alleged that Wells and Bloomfield negotiated the purchase of the car together, that they acted and represented themselves as principal (Bloomfield) and agent (Wells) or, alternatively, as partners in the purchase, and that both of them caused the draft to be executed. Further, that Bloomfield ratified, the execution of the sales agreement, the tender of the draft and all forms necessary to transfer title to the car, by accepting the car and attempting to exercise ownership and control over it. The plaintiff further alleged:

. the actions of Bloomfield and Wells indicate fraud and malicious conduct on their part in an effort to wrongfully secure this vehicle without paying for the vehicle and that constitutes conversion and fraud on Star .

Mr. Bloomfield points out that the trial court’s finding of fact (No.8) states only that the plaintiff has a cause of action against Wells and does not specify which one it is. It is Bloomfield’s position that the cause of action found by the trial judge may well be the one set out in Star’s allegations that Wells gave it an uncollectible draft. In that event, he says, the trial court would be correct in its finding (No.9) that the cause of action against Wells is not a joint cause against Bloomfield and that the causes against Wells and Bloomfield are not properly joinable to prevent a multiplicity of suits. We do not agree with this argument; Star’s allegations about an un-collectible draft were made only in its original petition, a pleading that had been superseded when the venue hearing was held. To establish a cause of action against a resident defendant under Subdivision 4, the plaintiff must plead and prove that cause of action (emphasis added). Stockyards National Bank v. Maples, supra. The trial court’s finding of a cause of action against Wells could only have encompassed one that was pleaded.

We sustain this point of error. We find no merit in any of the appellant’s other points.

We reverse the order of the trial court and render judgment that venue be maintained in Harris County.


author: McKAY, Justice.

text:
    Ester Faye TOLMAN, Appellant, v. Sammy OVERSTREET et ux., Appellees.
    No. 1277.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 15, 1979.

      J. Thomas Sullivan, Preston DeShazo, De-Shazo, DeShazo & Sullivan, Dallas, for appellant.
    Harry R. Heard, Gilmer, for appellees.
   McKAY, Justice.

This is a trespass to try title case.

In 1953 Hiram and Lorene Fannin acquired by deed a 7.9 acre tract of land in Upshur County, Texas. Hiram Fannin was the father of appellant, Ester Faye Tolman, and the grandfather of appellee, Darla Ov-erstreet, the wife of appellee Sammy Over-street. In January of 1968, Sammy and Darla Overstreet moved into a house located on a portion of Hiram and Lorene Fan-nin’s property and have resided there since that date.

Lorene Fannin died on December 18, 1974. On February 5, 1975, Ester Faye Tolman, as the only surviving heir with the exception of Hiram Fannin, conveyed her interest in the property to Hiram Fannin. On March 12, 1975, Hiram Fannin died.

After Hiram Fannin’s death, appellant sought an heirship proceeding in the District Court of Upshur County seeking a determination of the lawful heirs of Hiram Fannin. The court found appellant to be the sole heir of Hiram Fannin and found she was entitled to all of the interest in the estate. Pursuant to that determination, appellant sought to have appellees removed from the property.

Appellant brought suit to recover 2.46 acres of land on which appellees have resided, damages for the unauthorized use of the land, and exemplary damages. Appellant further alleged that appellees converted the following personal property which belonged-to Hiram Fannin’s estate: (1) seven cattle worth $700:00; (2) a washer and dryer worth $700.00; and (3) $543.62 worth of cash which was a refund for a set of wedding rings that Hiram Fannin ordered for his fiancee Lola Machen.

Appellees answered’ by a general denial and a plea of not guilty. Appellees filed a Second Supplemental Answer which further alleged that they entered upon the land in dispute relying on an oral gift of the land from Hiram Fannin and, with his consent, made valuable improvements upon said land.

The jury answered nineteen special issues summarized as follows: (1) that Hiram Fannin intended to and did give a house and land to Sammy and Darla Overstreet during his lifetime; (2) that the gift was made before December 18, 1974; (3) that Hiram Fannin gave to Sammy and Darla Overstreet a gift of land therein described; (4) and (5) that Sammy and Darla Over-street possessed the house and land and made permanent and valuable improvements therein with the consent of Hiram Fannin; (6) and (7) that Sammy Overstreet did not convert seven head of cattle owned by Ester Faye Tolman; (8) and (9) that Sammy Overstreet converted a washer and dryer owned by Ester Faye Tolman worth $100.00; (10), (11), and (12) that Hiram Fannin ordered a set of rings and died before they were received and that Sammy and Darla Overstreet did not convert $543.62 which belonged to the estate as a refund for said rings; (13) and (14) that Sammy and Darla Overstreet were not occupying property owned by Ester Faye Tol-man without her consent; (15) and (16) that Sammy and Darla Overstreet made improvements on the property in dispute in the amount of $3500.00; (17), (18), and (19) that it was necessary for Sammy and Darla Overstréet to care and feed seven cattle owned by Hiram Fannin at the time of his death and that they incurred expenses in the amount of $325.00 for the care and feeding of such cattle.

The trial court rendered judgment awarding to appellees the property claimed under the gift, $325.00 spent on the care and feeding of the cattle, and the wedding rings. The appellant was awarded the cattle and $100.00 for the conversion of the washer and dryer. At the close of the evidence, appellant moved for instructed verdict which was granted in part and overruled in part. In partially granting the motion, the court ruled that Lorene Fannin did not make a gift of the disputed property prior to her death. Additionally, appellant filed a motion styled “Plaintiff’s First Motion for Judgment Non Obstante Veredicto and for Judgment on Finding of the Jury” which was overruled by the trial court. Appellant duly perfected her appeal, bringing nine points of error.

Although some of appellant’s points are multifarious, appellate courts have given a liberal interpretation of the rules which will permit us to consider these points. Kroger Co. v. Cellan, 560 S.W.2d 505, 507 (Tex.Civ. App.-Tyler 1977, writ refused n. r. e.).

Appellant’s first point of error complains that the trial court erred in overruling her Motion for Judgment Non Obstante Vere-dicto and entering judgment for appellee because the findings of the jury established that the parol gift of the property was void as a matter of law. Appellant argues that the disputed property was the homestead of Hiram and Lorene Fannin and, since both Hiram and Lorene Fannin did not join in the conveyance of the property, under Section 5.81 of the Texas Family Code, the conveyance is void. We sustain this point.

A homestead is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith. Gann v. Montgomery, 210 S.W.2d 255, 258 (Tex. Civ.App.-Fort Worth 1948, writ ref’d n. r. e.). The possession and use of real estate by one who owns it, and who, with his family, resides upon it makes it the homestead of the family in law and in fact. Garrard v. Henderson, 209 S.W.2d 225, 230 (Tex.Civ.App.-Dallas 1948, no writ); See Art. 3833, Tex.Rev.Civ.Stat.Ann., and Art. 16, Sec. 51, Constitution of Texas. Moreover, the courts have always given a liberal construction to the Constitution and Statutes to protect homestead rights. Woods v. Alvarado State Bank, 19 S.W.2d 35 (Tex. 1929).

Under the record we conclude that the property in question was the homestead of Hiram and Lorene Fannin. Counsel to both parties stipulated to a common source of title and the record reflects that Hiram and Lorene Fannin lived on the tract of land from 1953 until their respective deaths. Moreover, no evidence was presented that the homestead was ever abandoned, and .appellee had the burden to show abandonment. Canales v. Oliver, 322 S.W.2d 411, 413 (Tex.Civ.App.-San Antonio 1959, writ ref’d, n. r. e.).

Appellee argues the fact that two separate houses existed on the same tract of land defeats characterization of the property as homestead. Appellee offers no authority in support for this proposition. It is well established that the purchase of a lot on which two houses have been constructed, followed by the occupancy of one, may support a finding that both structures are homestead. Scottish American Mortgage Co. v. Milner, 30 S.W.2d 582 (Tex.Civ.App.-Texarkana 1930, writ ref’d); Weidemeyer v. Bryan, 21 Tex.Civ.App. 428, 53 S.W. 353 (Tex.Civ.App.1899, no writ); 28 Tex.Jur.2d Homesteads § 71 at 458 (1961). Accordingly, we reject this argument.

The Texas Constitution art. 16, sec. 50 specifies that the husband shall not sell the homestead without the consent of his wife given in such manner as may be prescribed by law. Section 5.81 of the Texas Family Code, which was in effect on the date of this transaction, provides:

Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber it without joinder of the other spouse except as provided in Section 5.82, 5.83, 5.84, or 5.85 of this code or by other rules of law.

Lorene Fannin did not join in the conveyance of the disputed property. In response to Special Issue No. 2, the jury found there was no gift made after December 18, 1974, the date of Lorene Fannin’s death. The trial court, by partially granting appellant’s motion for instructed verdict, specifically found there was no gift by Lorene Fannin prior to her death. Accordingly, it follows that Lorene Fannin did not join in the conveyance of the homestead property. Moreover, the Defendant’s (appellees) Second Supplemental Answer pled an oral gift of the property from only Hiram Fan-nin, and all of the special issues submitted to the jury inquired about a gift from Hiram Fannin — not one inquired about the joinder of Lorene Fannin.

Because we have found that the conveyance of the property in question without the joinder of Lorene Fannin violates Section 5.81 of the Texas Family Code, the legal effect of the conveyance must be examined. Since Grissom v. Anderson, 79 S.W.2d 619 (Tex.1935), the prevailing view has been that an attempted conveyance of homestead property by the husband without consent of his wife is merely inoperative so long as the property continues to be homestead, or until the homestead is abandoned or until the conveyance is ratified. Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Civ.App.-Amarillo 1974, writ ref’d n. r. e.). Such a conveyance is void as to the wife’s interest and she will not be bound by the husband’s parol gift of land on which the family has resided. Morris v. Wells, 27 Tex.Civ.App. 363, 66 S.W. 248 (Tex.Civ.App.-1901, writ ref’d); Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2 (Tex.1896); 28 Tex.Jur.2d Homesteads § 118 at p. 522 (1961). We find no evidence in the record of ratification of the conveyance by Lorene Fannin nor do we fi^d evidence of abandonment of the homestead. Therefore, we hold that the purported oral gift of the disputed property by Hiram Fannin to appellees is void.

Appellant’s second through sixth points of error attack the sufficiency of the evidence in support of the jury’s finding that Hiram Fannin made a valid oral gift to appellees, the sufficiency of appellee’s pleadings with respect to the oral gift, and the failure of appellee’s pleadings to support the special issues which were submitted with respect to said gift. In view of our disposition of appellant’s first point of error, it is unnecessary to address these points.

Appellant’s seventh point of error complains that the trial court erred in awarding $325.00 to appellee because the jury’s finding in Special Issue No. 19 was not supported by the evidence or the pleadings. In response to Special Issue No. 19, the jury found that appellees had expended $325.00 for the feed and care of seven cattle and the trial court entered judgment for that amount. This issue was not supported by the pleadings and therefore, it was error to submit it to the jury.

2 McDonald Texas Civil Practice Section 7.55 at p. 305 (1970 rvd. ed.) provides:

In a trespass to try title action, the Defendant may assert freely counterclaims setting up any interest which he may have in the disputed property . Defendant must allege factual propositions sufficient, when construed with the unequivocal allegations of the Plaintiff’s petition, to establish a right to affirmative relief and pray for the relief he seeks. An answer which sets forth merely defensive pleas is not transformed into a counterclaim by the addition of a prayer asking that Defendant’s title be quieted or that the cloud cast thereon by Plaintiff’s claim be removed.

Also see: Crosby v. Di Palma, 141 S.W. 321 (Tex.Civ.App.-El Paso 1911, writ ref’d).

In their original Answer and Second Supplemental Answer, appellees pled not guilty, a general denial, an oral gift of the disputed property, and valuable improvements in reliance upon such gift. There was an alternative plea for the value of improvements made. Appellees did not assert a counterclaim for reimbursement for amounts expended for the care and feeding of cattle nor did they set forth any factual allegations to support a right to affirmative relief; appellees’ pleadings merely reflect a defensive position with respect to the title of the disputed property. We sustain appellant’s seventh point of error.

Appellant’s eighth point of error contends that the trial court erred in rendering judgment based upon the jury’s answers to Special Issues No. 10, 11, and 12 because the relief granted by the trial court was not supported by appellees’ pleadings and was contrary to the evidence. In response to Special Issues No. 10, 11 and 12, the jury found that Hiram Fannin, before his death, ordered a set of rings worth $543.62 and paid for said rings, that Hiram Fannin died before the rings were received by him, and that Sammy and Darla Overstreet did not convert the refund which was due the estate for the rings.

After an examination of the record we find sufficient evidence to sustain the jury’s findings that a gift of the refund for the rings was made to appellees. The record reflects that Hiram Fannin planned to remarry, that he gave to his future wife, Lola Machen, a receipt for the rings before his death, and that Lola Machen gave the receipt for the rings to appellees. However, we find that the trial court erred in awarding the rings to appellees, but such error was harmless.

A careful examination of the evidence reveals that the order for the rings was cancelled after the death of Hiram Fannin and the payment refunded; the appellees never obtained possession of the rings. Therefore, since none of the parties had physical possession of the rings, it was error to attempt to award them to appellees.

In view of our disposition of the appeal we find it unnecessary to discuss appellant’s ninth point of error.

The judgment of the trial court insofar as it awarded title and possession of the 2.46 acres and the house thereon to appellees, and insofar as said judgment awarded $325.00 to appellees for feeding and care of cattle is reversed, and judgment is here rendered for appellant; the judgment is reversed and remanded for trial of questions of rental value and improvements of the property.