author: WALTHALL, J.

text:
    EPPENAUER et al. v. SCRUGGS et al.
    No. 2747.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    W. H. Lipscomb and G. O’Neal Dendy, both of San Angelo, for appellants.
    Henry Russell and Hubbard & Kerr, all of Pecos, for appellees.
   WALTHALL, J.

The sole question presented in this appeal is one of venue.

On February 3, 1931, plaintiffs Bob Scruggs and Leonard Proctor filed their original petition in the district court of Reeves county against defendants A. R. Eppenauer and C. G. Nelson, which petition, omitting the formal heading, reads as follows:

“Comes now Bob Scruggs, a resident of Midland County, Texas, and Leonard Proctor, a resident of Midland County, Texas, doing business as co-partners under the name of Scruggs-Proctor Buick Company, and complaining of A. R. Eppenauer, a resident of Reeves County, Texas, and of C. G. Nelson, a resident of Loving County, Texas; and for cause of action plaintiffs represent:

“First. That the defendant A. R. Eppen-auer about the 3rd day of December, 1930, entered into an agreement with the plaintiffs, by the terms of which the plaintiffs conveyed to the defendant Eppenauer a 1931 model Buick Coupe, for which the defendant paid the plaintiffs the sum of Sixteen Hundred and Twenty-five ($1,625.00) Dollars in cash, and sold and agreed to convey and deliver to the plaintiffs one (1) second-handed Cadillac Roadster, with a Tool Pusher body. That said bargain, and sale, was so made in Reeves County, Texas, on the 3rd day of December, 1930, and said bargain was verbal.
“Second: After said agreement, bargain and sale was made and in keeping with.the terms thereof the plaintiffs executed a conveyance of said Buick Coupe, and delivered said conveyance and said Buick Coupe to said defendant Eppenauer, and said defendant Eppenauer paid to the plaintiffs the sum of Sixteen Hundred and Twenty Five ($1625.00) Dollars, and told plaintiffs that said Cadillac Roadster was located in the possession of the defendant Nelson near Porterville, in Loving County, Texas, and directed them to take possession thereof, and agreed to execute a conveyance of said car.
“Third: That the said defendant Eppenauer took possession of said Buick Coupe and converted same to his own use and benefit, but when the .plaintiffs attempted to take possession of said Cadillac Roadster, which said defendant Eppenauer had sold to the plaintiffs and agreed to convey to them, that said defendant Nelson refused to convey the same, and the defendant Nelson refused to permit plaintiffs to take possession thereof, and same is in the possession of the defendant Nelson in Loving County, Texas, and said defendant Nelson refused to deliver possession thereof to the plaintiffs.
“Fourth: That said car is the property of the defendant Eppenauer, and said defendant alleges that said Nelson is refusing to deliver same to plaintiffs on account of the directions so to do by said defendant Eppenauer. That said car is of the value of Five Hundred ($500.00) Dollars in Loving County, Texas, and was of such value at the time and place of such sale. That the rental value of said Cadillac Roadster is the reasonable sum of One ($1.00) Dollar per day.
“Wherefore, premises considered, plaintiff prays that the defendants, and each of them be cited to appear and answer this petition, and upon final trial plaintiff have judgment for the title and possession of said car, and further have judgment for the sum of One ($1.00) Dollar per day from the 3rd day of December, 1930, to the date of the filing of this suit; and further have judgment for the sum of One ($1.00) Dollar per day from this date until the trial of this cause, which plaintiff represents is the reasonable rental value of said car, and the actual cash market value of the use thereof during said period. Plaintiffs further pray for cost of suit, and all other and further relief in law or equity, to which they may be entitled in the premises.
“Should it develop upon the trial of this cause that for any reason the defendants cannot deliver said ear to the plaintiffs, or it has been lost or injured, then in the alternative plaintiffs pray that they have judgment for the sum of Five Hundred ($500.00) Dollars, with interest from the 3rd day of December, 1930, and all cost of this suit, and all other and further relief in law or equity to which they may be entitled in the premises.”

To which petition each of defendants filed his plea of privilege. Each of said pleas is in the same verbiage, and for brevity we copy only one. It is as follows:

“Bob Scruggs et al. v. A. R. Eppenauer et al. No.' 3017.
“In the District Court of Reeves County, Texas.
“Now comes A. R. Eppenauer, one of the defendants in the above entitled and numbered cause and says, that this Court ought not to have or take further action or cognizance of this suit, than to have the same transferred to the Court having jurisdiction of the person of this defendant, because he says that he is not now and was not at the institution of this suit, nor at the time of service of such process on him herein, nor at the time of the filing of this plea, a resident of the .County of Reeves, the County in which this suit was filed and is now pending, but he is now and was at the time of the institution of this suit and at the time of the service of process on him, and at the time of the execution and filing of this plea, a resident of the County of Tom Green, State of Texas, where he then and now resides, and that no exception to exclusive venue in the County of ones residence, provided for by law, exists in said cause; That this suit does not come within any of the exceptions provided by law in such cases, authorizing this suit to be brought or maintained in the County of Reeves, State of Texas, or elsewhere outside of the Comity of Tom Green, State of Texas.
“Wherefore, premises considered, defendant prays the Court that the above suit be transferred to the District Court of Tom Green County, Texas, and for such orders herein that may be necessary and proper.
“A. R. Eppenauer, Defendant.”

Each of the said pleas was duly verified. Plaintiffs filed a verified controverting plea which the court set down for hearing on a day specified and ordered that service of said plea be made. On the hearing defendants filed a plea of amicus curias suggesting in effect that plaintiffs had waived their right of a hearing on said controverting plea, stating the ground on which said waiver was based. No evidence was offered or action seems to have been taken by the court on the controverting plea except as stated in the judgment that defendants’ amicus curise plea was overruled.

We refer to the controverting plea for the purpose only of ascertaining the exception under article 1995, Rev. Civ. Statutes, under which plaintiffs sought to fix the venue of the suit in Reeves county. The plea refers to plaintiff’s petition, and makes it a part of the controverting plea; the plea briefly states that the nature of the suit was to recover as against defendants an automobile located in Loving county, which county was attached to Reeves county for judicial purposes, and “that under the provisions of subdivision 10 of article 1995, of the Revised Civil Statutes of Texas, 1925, this court has jurisdiction of this controversy, in that said automobile was at said time, and is now in the possession of the defendant.” The gist of the controverting plea, stated briefly, was: That the suit was for the recovery of an automobile, personal property; that the automobile at the time of the filing of the suit was in Loving county, a county attached to Reeves county for judicial purposes.

Apparently without action of the court on the controverting plea, other than to overrule the amicus curise plea, plaintiffs presented to the court a general demurrer to defendants’ pleas of privilege which demurrer the court heard and ordered that plaintiffs’ general demurrer to the plea of privilege be sustained and the pleas of privilege be overruled, to all of which rulings of the court defendants duly excepted and in open court gave notice of appeal and have perfected said appeal to this court.

Opinion.

We will designate the parties as plaintiffs and defendants as in the trial court.

Defendants assigned error, and ger-main thereto submit that, defendants having in due time and in due order and in statutory form filed their respective pleas of privilege, in literal compliance with the requirements of article 2007," of the 1925 Revised Civil Statutes of this state, such pleas were not subject to a general demurrer. Plaintiffs have not filed briefs in this case.

Article 2007 of our present statutes provides: “A plea of privilege to be sued in the county of one’s residence shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that ‘no exception to exclusive venue in the county of one’s residence provided by law exists in said cause’; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue. If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.”

It might be observed that each of defendant’s pleas of privilege is, in its verbiage, a literal compliance with article 2007 of our statutes. The pleas do not traverse and specifically deny the existence of the facts pleaded by plaintiffs fixing the venue of the suit in Reeves county; that is, the pleas do not specifically but inf erentially deny the domicile of each of defendants to be in Reeves county, and do not deny the nature of the plaintiffs’ suit as indicated in the petition, nor do the pleas specifically deny that plaintiffs’ suit is for the recovery of personal property, nor deny that the automobile, for the recovery of which the suit was brought, was in Loving or Reeves county as alleged in plaintiff’s petition.

We understand the Dallas Court of Civil Appeals in Barnum et al. v. Lancaster Hardware Company, 40 S.W.(2d) 1103, as holding that, where the plaintiff’s petition states facts which bring his case under one of the exceptions to the general venue statute, and the defendant merely files a statutory plea of privilege to be sued in the county of his domicile, and does not specifically deny the facts pleaded by plaintiff fixing the venue of the suit in the county where the suit is filed, such plea of privilege is subject to a general demurrer. The attorneys for plaintiffs and the trial court in this case evidently so construed the Barnum v. Lancaster Hardware Company Case, and apparently followed it in presenting and sustaining the general demurrer.

We do not think such holding is a proper construction of the law, and in harmony with other holdings of our courts, and it has been so held in several cases.

As said by the Waco court in Eckert-Burton Const. Co. v. Board of School Trustees (Tex. Civ. App.) 51 S.W.(2d) 642, and in Johnson v. First National Bank (Tex. Civ. App.) 42 S.W.(2d) 870, the Legislature has prescribed the facts necessary to a plea of privilege, and has declared that, when the plea is in the form provided by the statute, it shall be sufficient, and the courts have no authority to hold otherwise.

A plea of privilege in conformity to the requirements of the statute cannot be reached by demurrer. American Fruit Growers, Inc., v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898. To the same effect is Weatherly et al. v. White House Lumber Company (Tex. Civ. App.) 49 S.W.(2d) 522, by the Amarillo court. In the last-cited case Judge Hall cites many cases to which we refer without copying them here.

For reasons stated, the case is reversed, and it is ordered that the case be transferred to the district court of Tom Green county, Tex., for trial on the merits.


source: Caselaw Access Project

author: ORITZ, J. OURETON, O. J.

license: Public Domain

text:
    HERMANN HOSPITAL ESTATE v. NACHANT et al.
    No. 1598-5982.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    J. W. Lockett, of Houston, for plaintiff in error.
    ■ Ward & Ward, of Houston, for defendants in error.
   ORITZ, J.

This suit was originally filed in the district court of Harris county, Tex., on July 28,1914, by G. H. Hermann, against J. R. Nachant et al., in form of trespass to'try title to about 22 acres of land in Harris county, Tex. G. H. Hermann died -prior to the trial, and the trustees of Hermann Hospital Estate were properly substituted as parties plaintiffs.

Wg shall hereafter refer to the trustees as plaintiffs and to Nachant et al. as defendants.

On November 8, 1926, more than twelve years after the suit was instituted, it was dismissed by final judgment duly entered, for want of prosecution.

On January 12, 1927, at a subsequent term, of court, plaintiffs filed what they termed a bill of review, but the prayer thereto merely prays for the setting aside of the order of dismissal and the reinstatement of the cause on the docket with the same force as though it had never been dismissed.

On February 3, 1927, defendants answered the above motion contesting the same.

Ón June 10, 1927, plaintiffs filed what they denominate “Plaintiffs’ Amended Bill of Rer-view and Second Amended Original Petition.” The prayer thereto in effect prays for the setting aside of the order of dismissal and the trial of the cause on its merits and for general and equitable relief.

On January 18, 1928, the defendants filed their amended answer to the above-amended bill of review. This instrument pleaded to the effort to set aside the judgment of dismissal, and also defended the main cause of action set up by the plaintiffs’ bill. Among other defenses, the defendants pleaded not guilty, and also pleaded title to the land in controversy under the three, five, and ten year statutes of limitation.

On July 1, 1927, the district court entered an order, the effect of which is to do nothing more than grant a new trial and reinstate the canse on the trial docket for disposition on its merits as to the main action. This order was entered after the term of court wherein the order of dismissal was entered had expired. On October 26, 1929, more than two years after the order of July 1, 1927, setting aside the order of dismissal was entered, the district court proceeded to try the bill on its merits, as to meritorious cause of action only, but no further trial and no further order or judgment was had as to the part of the bill which sought to set aside the order of dismissal. In other words, the trial court treated the order_ of July 1, 1927, as having accomplished the setting aside of the order of dismissal, and reinstating the case just as though it had never been dismissed.

We here copy the following statement from the opinion of the Court of Civil Appeals (35 S.W.(2d) 1097, 1098):

“On the 26th day of October, 1929, the court overruled the general'and special demurrers of defendants and proceeded to the trial of the cause on its merits, and, before submitting any issue to the jury selected to try the cause, the court announced the following findings: ‘It appears to the court and the court finds that the plaintiffs sued for a tract of land 177 varas wide from North to South by 708 varas long from East to West containing approximately 22.18 acres in the P. W. Rose ■Survey, and that as a matter of law the plaintiffs have the record title to the Northern 144 varas wide from North to South by 70S varas long from East to West containing approximately 17.66 acres off of the North part of the 22.18 acres sued for, which approximately 17.66 acres plaintiffs are entitled to recover unless defendants have acquired title by five years limitation to that part thereof within defendants’ enclosure, which enclosure includes approximately 14.96 acres of the South part of said 17.66 acres, and the court further finds as a matter of law that the defendants have the record title to 36 var-as wide from North to South by 708 varas long from East to West, and including approximately 4.51 acres of the South part of the approximately 22.18 acres sued for, which approximately 4.51 acres defendants are entitled to recover, and the court finds that there is an issue of fact as to whether the defendants are entitled to recover by limitation the approximately 14.96 acres, being 708 varas long from East to West by 116 va-ras wide from North to South at its East end, and 122 varas wide from North to South at its West end, and being off of the South side of the 17.6 acres aforesaid, and North of and adjoining the 4.51 acres aforesaid, and the court decided to submit such issue of fact to the jury.’
“Having so found, the court submitted to the jury the sole and only question as to whether or not defendants had acquired title to the 14.96 acres mentioned by the statute of limitation of five years.
“In answer to the question submitted, the jury found that defendants and those under whom they claim had been in peaceable, adverse, and continuous possession of said 14.96 acres of land; that they had cultivated, used, and enjoyed the same, paying taxes thereon and claiming under deeds duly registered, for a period of five consecutive years prior to the 28th day of July, 1914.
“Upon such findings of -the court and the verdict of the jury, judgment was rendered in ■ favor of defendants for the 4.51 acres mentioned in the court’s findings and the 14.96 acres involved in the findings of the jury, aggregating 19.47 acres, which were described in the decree by metes and bounds, and in favor of plaintiffs for the 2.71 acres mentioned in the court’s findings, which is also described by metes and bounds in the decree.”

The plaintiffs appealed from the above judgment to the Oourt of Civil Appeals, which court in all things affirmed the judgment of the district court. 35 S.W.(2d) 1097. The trustees bring error.

We refer to the opinion of the Court of Civil Appeals for further statement of the case.

A judgment of a trial court which finally and completely dismisses a case pending therein finally disposes of it, and is therefore a final judgment. Green v. Green (Tex. Com. App.) 288 S. W. 406.

A trial court is without power to grant a new trial, as such, after the expiration of the term at which a final judgment has been entered. This is so because the law provides only for the granting of new trials at the same term of court at which the final judgment was entered. It follows that a litigant loses this right if he fails to avail himself of his statutory remedy to obtain a new trial at the same term of court at which the judgment was rendered. Humphrey v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963.

The remedy by bill of review has been provided to review judgments after the expiration of the term at which they were rendered only in cases where litigants, through no fault of their own, have been deprived of valid defenses or meritorious causes, of action by fraud, accident, or mistake. By this proceeding a trial court may exercise its discretionary equity powers and grant relief by trying the entire bill in one proceeding or trial, wherein the right to set aside the former judgment and the issues of meritorious cause of action or defense are disposed of in one final judgment. In other words, a bill of review is an independent suit filed in a court of competent jurisdiction, and cannot be disposed of in sections by trying the issue of setting aside the original judgment in one proceeding or trial and the issue of meritorious cause of action or defense in another such proceeding or trial. There must be but one trial and one judgment. Humphrey y. Harrell, supra. We here refer to Judge Sharp’s opinion in the Humphrey Case, supra, for full discussion and citation of authorities regarding the question above discussed.

It is clear that the order of July 1, 1927, setting aside the final judgment of dismissal theretofore entered on November 8, 1926, was nothing but an order attempting to grant a new trial entered without authority of law, and in violation of the rules we have above announced. It follows that the order of dismissal entered on November 8, 1926, still stands undisturbed.

The defendants have not presented the above matters by any application for a writ or assignment of error in this court. They did present the same to the Court of Civil Appeals. We think it proper to refer to it in view of another trial of this cause.

We now come to consider the assignments of error contained in the plaintiffs’ application for the writ.

The trial court submitted but one issue to the jury, which was whether defendants had acquired title to 14.96 acres of the 22 acres sued for under the five-year statute of limitation. The acquisition of title to land under the five-year statute of limitation is' defined by article 5509, R. C. S. 1925. That article reads as follows: “Every suit to recover real estate as against a person having peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a; deed or deeds duly registered, shall be instituted within five years next after cause of action shall have accrued, and not afterward. This article shall not apply to one in possession of land, who deraigns title through a forged deed. And no one claiming under a forged deed, or deed executed under a forged power of attorney shall be allowed the benefits of this article.”

A reading of the above statute shows that the payment of taxes is an absolute prerequisite to the acquisition of title to land thereunder. Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026.

Where the taxpayer pays taxes on one survey, he cannot apply such payments to land on another survey for the purpose of sustaining title under the five-year statute of limitation, and this even though such payments were made by mistake. Dutton’v. Thompson, supra; Conn v. Houston Oil Co. (Tex. Civ. App.) 218 S. W. 137.

The record before us shows that defendants paid taxes on land on lots 22 and 21, Blount subdivision of the P. W. Rose survey. In this connection the tax receipts show that for one year in question the defendants paid on land on lots 22 and 21, and the tax receipts for the other years show that the defendants paid taxes on land on lot 22 and the north one-half of lot 21.

As we understand this record, the trial court found that the 14.96 acres in dispute was no part of lots 22 and 21, supra. We further understand that the trial court, in effect, found that the plaintiffs are the record owners of the 14.96-acre tract. It follows that one of the absolute essentials of a title under the five-year statute of limitation is lacking as to defendants. Such essential is the payment of taxes.

The Court of Civil Appeals holds (35 S.W. (2d) 1097, 1101):

“It is shown that appellants were the record owners of lot 14, which lies just north of and contiguous to lots 21 and 22. It is shown that said lots' are wholly within the P. W. Rose survey. It is shown that, in a controversy between one Mclver, who owned land bordering on the north boundary of the Freeling survey, same being the south line of the Rose survey, as to where such boundary was located, it was agreed that such division line was some 136 or more varas north of where appellants contend the south boundaries of lots 21 and 22 are located, and that such agreed boundary was established in a suit between Hermann and Mclver as an agreed line. It is shown that, beginning on such agreed line, the calls in the deeds under which appellees, hold, for 620 varas north as the length of the east and west lines of lots 21 and 22, and thence 708 varas east the width of the two lots, would include the 14.98 acres involved in this suit.
“The witness W. H. Parker testified that under the direction of Hermann he built for Hermann a fence along the agreed line above mentioned; that Hermann then recognized the agreed line as the south line of the Rose survey.
“In view of the facts stated, we think the description of the land as made in the deeds under which appellees hold, which were duly recorded, was amply sufficient to .give notice to Hermann that appellees, and those under whom they claim, were claiming and occupying the land involved adversely to Hermann.
“We also think that the description of the Idnd as given in the assessment of taxes made by appellees was sufficient to give notice to the world what land was being assessed.”

We disagree with the above holding as applied to the payment of taxes. It is true that this record is sufficient to show that defendants had had adverse possession of this land for more than five years preceding the institution of this suit. In fact, plaintiffs do not controvert this. The Court of Civil Appeals holds and finds, in effect, that defendants so held possession of such land under a duly registered deed which described it with sufficient certainty to identify it and put O. I-I. Hermann on constructive notice of the fact that such deed purported to convey this land. We do not disturb such holding or finding. In spite of this all the requirements of the statute to perfect limitation title were toot met because defendants did not pay taxes on the land in question during such time. In this connection we hold that payment of taxes by the defendants on land on lots 22 and 21 of the Rose subdivision could not operate to perfect title by five-year limitation to land not on such lots, and this even though it be admitted that Hermann, who held the record title to this land, made the boundary agreements with Mclver above shown, and built a fence on the boundary lines so agreed on. In this connection we wish to say that, as we understand this record, the Mclver tract is not any part of the land here involved.

We recommend that the judgments of the Court of Civil Appeals and district court be in all things reversed, and the cause remanded to the district court.

OURETON, O. J.

The judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: RYAN, J. CURETON, C. J.

text:
    PARKER ROOFING CO. v. ÆTNA CASUALTY & SURETY CO.
    No. 1411-6172.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    R. F. Spencer, A. J. Lewis, Spencer, Rogers, Lewis & Slatton, Jack R. Locke, Terrell, Davis, McMillan & Hall, and Hal Browne, all of San Antonio, for plaintiff in error.
    Cunningham, Moursund & Johnson, of San. Antonio, for defendant in error.
   RYAN, J.

This suit was brought in the district court of Bexar county by plaintiff in error against the defendant in error to recover from the-latter as surety on a -bond given by Guy C. Holder, Inc., as contractor, to secure the-proper construction of a residence for E. R. Holland, Jr.

The trial court rendered judgment for plaintiff below, which was reversed by the Court of Civil Appeals and judgment there rendered for the surety company. 43 S.W. (2d) 1102.

The contract between the owner and contractor gave the owner the right to require a bond covering faithful performance of the-contract and payment of all obligations arising thereunder in such form as the owner may prescribe and with such sureties as he may approve. Accordingly, bond was on January 11, 1930, given, worded as follows:

“Know all men by these presents, That whereas, on the 11th day of January A. D.. 1930, Guy C. Holder, Incorporated, as Contractor, and B. R. Holland, Jr., of Bexar County, Texas, as Owner, did make and entered into -the contract in writing whereby the-said Contractor, for and in consideration of the sum of fifty-nine thousand eight hundred and twenty-seven ($59,827.00) dollars to be-paid to it according to the terms and conditions -set forth in said contract, obligated itself to make, erect and build for E. R. Holland, Jr., a certain two-story residence and' garage on Lot 12 in block 12, Contour Drive, Olmos Park, San Antonio, Texas, and to complete and finish said buildings and improvements in a good, substantial and workmanlike manner by the 15th day of August A. D., 1930, strictly according to the terms of said contract and to the plans and specifications-attached to and made a part of said contract, said contract and plans and specifications having been prepared by H. B. Thomas and Fred Gaubatz, Architects:
“Now, therefore, for the purpose of securing the said E. R. Holland, Jr., and his heirs or assigns in the true and faithful performance of said contract, together with all of the covenants and obligations of the said Guy C. Holder, Incorporated, therein set forth, and to guarantee the true and faithful performance of said contract and thé'payment of all claims of each and every subcontractor, workman, laborer, mechanic and: furnisher of material against the said Guy C. Holder, Incorporated, Contractor, arising or growing out of said contract, as their interests may appear:
“We, the said Guy C. Holder, Incorporated, as Principal, and The ¿Etna Casualty and Surety Company, as Surety, acknowledge ourselves indebted to and bound to pay to the said E. R. Holland, Jr., Owner, his heirs, executors, administrators or assigns the sum of Fifty-nine Thousand ($59,000.00) Dollars in United States Gold Coin of the present standard of weight and fineness,, at San Antonio, Texas.
“The conditions of this bond, however, are such that if the said Guy C. Holder, Incorporated, Contractor, shall truly and faithfully do and perform all and every the covenants and conditions of said contract and herein promised by it to be done, kept and performed, and shall truly and faithfully pay all claims of each and every subcontractor, workman, laborer, mechanic and furnisher of material against it, growing or- arising out of said contract, then in such event this obligation is to be and become null and void and of no further force and effect, otherwise to remain in full force and effect.”

Thereafter; the contractor entered into contract with plaintiff in error, whereby the latter agreed, for a consideration of $6,391, to furnish and lay in place the roof on the Holland residence, of designated materials. Plaintiff in error complied with its contract but was paid only the sum of $3,564, leaving a balance due of $2,827, for which this suit was brought, in three alternative counts: (1) To recover as subcontractor on the bond as written; (2) to reform the bond so as to contain a provision, omitted by mutual mistake, to the effect that the same should inure to the benefit of every subcontractor, workman, laborer, mechanic, and furnisher of material and recover thereon as reformed; and (3) .to declare the wording of the bond ambiguous as written, that evidence be heard to show its real intention and meaning, and recovery be allowed in the light of the intention and meaning as thus shown.

The case was tried by the court without the aid of a jury, and judgment rendered generally for plaintiff in the above sum of balance due; the court found, as to the second count, that the bond be reformed so as to read that it shall inure to and be for the benefit of each and every subcontractor, workman, laborer, mechanic, and furnisher of material, as though their names were actually written therein.

The trial court found as facts that the original building contract was entered into between Guy O. Holder, Inc., contractor, and E. R. Holland, Jr., owner, on the standard form of agreement promulgated by the American Institute of Architects, and provided that, before issuance of final certificate, the contractor shall submit evidence satisfactory to the architect; that all pay rolls, material bills, and other indebtedness connected with the work, have been paid; that nothing contained in the contract documents (consisting of the agreement, the general conditions of the contract, and the drawings and specifications, including all modifications thereof incorporated in the documents before their execution) shall create any contractual relation between any subcontractor and the owner ; he further found that the owner demanded a bond which would protect every subcontractor, workman, laborer, mechanic, and furnisher of material, and tbe surety company’s representative agreed'thereto and the owner was informed and understood that such a bond would be written, but through mistake of the owner’s attorney in drawing the bond, he omitted to insert therein a specific provision to the effect that it would inure to the benefit of subcontractors, workmen, mechanics, laborers, and furnishers of material as though their names were so written in the bond; he further found that, prior to the completion of its contract with Holland, Guy O. Holder, Inc., contractor, was adjudged a bankrupt and abandoned the contract ; that the lot whereon said residence is located is the separate property of Holland’s wife; that she did not sign or acknowledge said contract, and it was her purpose and that of her husband to erect a home thereon and the same, since the completion of said residence, has been used and occupied by them as their homestead.

The trial court concluded that therefore no lien could attach to the property by- reason of material furnished and work done under said building contract, or by any subcontractor, materialman, laborer, mechanic, or fur-nisher of material.

The trial court concluded also, as a matter of law, that, if the question of mutual mistake be wholly disregarded, and the contract remain unreformed, under the wording of the bond as actually written (viewed in the light of the circumstances surrounding its execution, i. e., the property being the wife’s separate estate, as well as the family homestead, no valid lien could be fixed against it by any subcontractor, workman, laborer, mechanic, or furnisher of material), it is susceptible of no other construction than that it was intended to secure subcontractors, workmen, laborers, mechanics, and furnishers of material.

Opinion.

It is contended by defendant in error that the bond in question is for the benefit of E. R. Holland, Jr., only, and contains no provision showing an intention that the same secured subcontractors, workmen, laborers, mechanics, and furnishers of material or inured to their benefit, and contained no provision authorizing any person other than the said E. R. Holland to sue thereon.

The bond was made, according to its recitals, for the purpose of securing E. R. Holland, Jr., his heirs or assigns, in the faithful performance of the contract by the contractor and in guaranty thereof, which was for the benefit of Holland.

The bond also, according to its recitals, guaranteed the payment of all claims of each and every subcontractor, workman, laborer, mechanic, and furnisher of material, against the contractor arising or growing out of the contract, as their interest may appear. This was intended to protect that class of creditors and inured to their benefit.

It was said by Presiding Judge Harvey in American Employers’ Insurance Co. v. Roddy (Tex. Com. App.) 51 S.W.(2d) 280, 283 (approved by the Supreme Court):

“The insurance company contends that the bond in question was made for the benefit of the Roddys, exclusively. It is to be observed that among the conditions contained in the defeasance clause of this bond is the payment of ‘all claims of each and every subcontractor, workman, laborer, mechanic and furnish-er of material, growing or arising out of said contract.’ With reference to a builder’s bond which does not relate to the construction of public improvements, the rule seems to be established in this state that, standing alone, a defeasance clause such as this is not to be regarded as implying any obligation on the part of the contractor and surety, except to indemnify the property owner against loss on account of the claims comprehended by said clause. National Bank v. Railway Co., 95 Tex. 176, 66 S. W. 203; General Bonding, etc., Co. v. Waples Humber Co. (Tex. Civ. App.) 176 S. W. 651 (writ refused); Oak Cliff Humber Co. v. American Indemnity Co. (Tex. Civ. App.) 266 S. W. 429. However this may be, if other language contained in the instrument disclose a promise, on the part of the contractor and his surety, to pay the claims of laborers and materialmen, and nothing to the contrary appears, the bond will be deemed to have been made for the benefit of laborers and materialmen as well as of the obligee in the bond. Fox v. Christopher & Simpson Iron Works Co. (Tex. Civ. App.) 199 S. W. 833 (writ refused). On the face of the bond in question here, there appears an express declaration of the purposes for which the bond was made. Among those declared purposes is the purpose ‘to guarantee ⅜ * * the payment of all claims of each and every subcontractor, workman, laborer, mechanic, and furnisher of material unto the said Ray Phillips, as contractor, arising or growing out of said contract, their heirs and assigns, as their interest may appear.’ That this language necessarily implies an undertaking, on the part of the contractor and his surety to ‘guarantee' payment of all claims of the sort specified is hardly susceptible of doubt. It is equally clear that an undertaking to guarantee payment embraces a promise to pay. If there were any doubt as to the intention of the parties to extend the benefits of this obligation to the holders of claims of the sort described, that doubt would be expelled by the words, ‘as their interest may appear.’ It is thus definitely shown that the interest of such claimholders themselves was distinctly in contemplation of the parties to the bond. Clearly 'the bond was intended to inure to the benefit of such claimholders. The contention of the insurance company, in this respect, is overruled.”

We think the rule announced by Judge Harvey controls the disposition of the instant case, and the obligation to pay all claims of subcontractors, workmen, laborers, mechanics, and furnishers of material, inured to their benefit, and they could recover by reason thereof.

That rule is in harmony with the doctrine announced in United States Eid. & G. Co. v. Thomas (Tex. Civ. App.) 156 S. W. 573; Austin Bros. Bridge Co. v. Love (Tex. Com. App.) 34 S.W.(2d) 574; and cases cited in note 17, 7 Tex. Jur. p. 98.

The bond having been made for the benefit of subcontractors, workmen, laborers, mechanics, and materialmen, they may sue thereon in their own names. It is not necessary that they be named or even known when the obligation is made. Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621; McCown v. Schrimpf, 21 Tex. 27, 73 Am. Dec. 221; 10 Tex. Jur. p. 483.

We are of opinion that plaintiff in error is entitled to recover, and, therefore, recommend that the judgment of the Court of Civil Appeals be reversed and that of the district court be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed,' as recommended by the Commission of Appeals.


author: HARYEX, P. J: CURETON, C. J.

text:
    ESTELLE et al. v. HART et al.
    No. 1575—5929.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.

      W. A. Morrison, of Cameron, and J. W. Thomas, of Belton, for plaintiffs in error.
    J3. A. Wallace and Henderson, Kidd & Henderson, all of Cameron, and J. P. Alexander, of Waco, for defendants in error.
   HARYEX, P. J:

This suit involves the foreclosure of two judgment liens on two éeparate tracts of land in Milam county. One of the judgment liens is held by Mrs. G. Hart and the other by Mrs. Jack O. Allen. The respective money judgments secured by said judgment liens were duly recovered against L. C. Estelle by Mrs. Hart and Mrs. Allen, respectively, in the year 1928, and both are' still subsisting. Each of said judgments against L. C. Estelle was duly abstracted, and, on May 12, 1928, such abstract was duly recorded in the office of the county clerk of Milam county. No question going to the regularity of such abstracting and recording is involved in the case. The controversy herein, in respect of said judgment liens, relates exclusively to the rights of Mrs. Hart and Mrs. Allen, as holders of said liens, in respect of two separate tracts of land in Milam county — one of which is known as the “Mitchell tract” and the other as the “Atkinson tract.” With respect to the Mitchell tract, Mrs. Hart and Mrs. Allen, sought foreclosure of said judgment liens as against said L. C. Estelle and the First National Bank of Cameron, Tex., which will be hereinafter called the bank. Qn this branch of the case the trial court peremptorily instructed the jury to return a verdict for the bank, and judgment was entered in favor of the bank denying Mrs. Hart and Mrs. Allen a foreclosure of their judgment liens. . .

With respect to the Atkinson tract, Mrs. Hart and Mrs. Allen sought foreclosure of their said liens as against said B. C. Estelle, and the latter’s two sons, L. O. Estelle, Jr., and John R. Estelle. In this respect, special issues were tried to a jury, resulting in a judgment in favor of the two last named, denying Mrs. Hart and Mrs. Allen a foreclosure as sought by them. It is unnecessary, for present purposes, to state the disposition of the case by the trial court, with reference to other parties to the suit. On appeal, the Court of Civil -Appeals affirmed the judgment of the trial court, in part, and reversed and remanded, in part, as will be hereinafter more specifically stated. 34 S.W.(2d) 665. The application for writ of error made by the First National Bank of Cameron, and that made by L. C. and John R. Estelle, and that made by Mrs. Hart and Mrs. Allen, have been granted by the Supreme Court. The two applications last mentioned were granted because of the granting of the bank’s application.

We shall first take up the questions which involve the Mitchell tract. The facts relating to this branch of the case, so far as need ■be stated here, are substantially as follows: On October 28, 1926, L. C. Estelle, being the owner of the Mitchell tract, executed a deed ■of trust, covering said tract, to Gillis, as trustee, to secure said Estelle’s note for $3,-000, which note was held by a Mrs. A. F. Mitchell. In said deed of trust it was provided as follows:

“But, in case of failure or default in the payment of said promissory note together with the interest thpreon accrued, according to its terms and face, at the maturity of the same, then, in such event, said Mrs. A. F. Mitchell is by these presents fully authorized and' empowered, and it is made his special duty, at the request of the said W. G. Gillis, Trustee, at any time made after the maturity of said promissory note, to sell the said above described property to the highest bidder, for cash, at public outcry, in front of the Court House door of said Milam County, on the first Tuesday of any month, between the hours of 10 o’clock a. m. and 4 o’clock p. m. first giving notice of the time, place and terms of sale for at least twenty days successively next before the day of sale, by posting up written or printed notices of such sale at three public places in the County of Milam, State of Texas, one of which shall be at the court house door of said County, and by giving such other notice as is or may be required by law, and after said sale, as aforesaid, to make to the purchaser or purchasers thereof a good and sufficient deed in law to the property so sold, with the usual covenants and warrants, and to receive the proceeds of said sale, and the same to apply to the payment of said note, the interest thereof accrued, and the expense of executing said trust, including five per cent.' commission to. said Trustee, holding the remainder thereof subject to the order of them the said L. C. Estelle and Fannie Estelle.

“It is expressly agreed that the recitals in tlie conveyance to the purchaser shall be full evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed; and it is hereby specially provided that should the said W. G. Gillis, Trustee, from any cause whatever, fail or refuse to act, or become disqualified from acting as such Trustee, then the said Mrs. A. F. Mitchell shall have full power to appoint a substitute, in writing, who shall have the same powers as are hereby delegated to the said W. G. Gillis, Trustee, and does by these presents fully and absolutely ratify and confirm any and all acts which the said W. G. Gillis, Trustee, or his substitute as herein provided, may do in the premises by virtue hereof.”

As already shown, the abstracts of the Hart and Allen judgments against L. C. Estelle were duly filed and recorded on May 12, 1928. After this, the bank brought suit against Estelle, and, on January 3, 1929, had an attachment levied on the Mitchell tract. That suit resulted in a judgment in favor of the bank against Estelle for about $1,400, and foreclosure of the attachment lien. On July 2, 1929, one McIntosh, one of the directors of the bank, and who, at the instance of the ■bank, had purchased the Mitchell note and lien for the bank, and still held same for the bank, obtained a refusal of Gillis to act as trustee under the above deed of trust, and appointed Wallace as substitute trustee. On the same day, McIntosh, in writing, requested Wallace, as substitute trustee, to sell the land for the purpose of satisfying said note. Wallace proceeded to advertise the land for sale on August 6, 1929, under said deed of trust. At said sale McIntosh, the only bidder, bought in the land, for the bank, for the sum of $3,-750, and credited the amount of his bid on the debt and expenses of sale. Wallace, as substitute trustee, conducted said sale and executed to McIntosh a deed to the land, and the latter thereupon deeded the land to the bank. A few days after said sale was made and said deeds were executed, L. O. Estelle, for a valuable consideration moving from the bank, executed to the bank a written instrument in which he ratified and confirmed the sale and deed which had been made by Wallace, as substitute trustee.

Keeping in mind the foregoing facts, questions going to the validity 'of the sale by Wallace, as substitute trustee, will now be considered. The power of sale which was created by L. O. Estelle in and by deed of trust of October 28, 1926, under which Wallace assumed to act, was by the terms of that •instrument conferred on Mrs. Mitchell alone. The language of the instrument, in this respect, is not susceptible of any other meaning. Regardless, therefore, of other alleged irregularities in the sale conducted by Wallace, no valid sale was effected under said power, for the simple reason that said power was not exercised by Mrs. Mitchell, the person to whom same was intrusted. Fuller v. O’Neil, 69 Tex. 349, 6 S. W. 181, 6 Am. St. Rep. 59; Boone v. Miller, 86 Tex. 74, 23 S. W. 574; Michael v. Crawford, 108 Tex. 352, 193 S. W. 1070. The bank contends, however, that an inquiry as to the proper exercise of a power of sale which has been granted by á mortgagor is not available to any one except the mortgagor and his privies in estate. The case of Buvens v. Brown, 118 Tex. 551, 18 S.W.(2d) 1057, is relied on as sustaining this contention on principle. This may be true, perhaps, so far as the inquiry relates to divestiture of the title of the mortgagor and the investing of same in the purchaser at such a sale. But a sale of the mortgaged property under such a power, if the power be regularly exercised in conformity with the terms prescribed, imports something more than a mere transfer of the title to the property. It also has effect to cut off all the rights of junior lienholders respecting the property sold. Hampshire v. Greeves, 104 Tex. 620, 143 S. W. 147. It is perfectly plain, therefore, that a junior lienholder has an interest in the subject-matter of such a sale to the extent, at least of his rights in the property sold, and, to say the least, is entitled to show the improper exercise of the power of sale, and thus show the invalidity of the sale to cut off his rights. This Mrs. Hart and Mrs. Allen have done.

We now pass to a consideration of the situation, respecting the Mitchell tract, as it exists between Mrs. 1-Iart and Mrs. Allen, on one hand, and the bank on the other. Nobody contends that the bank does not now hold the title to the land which was formerly held by L. O. Estelle. The ratification, by the latter, of the sale by Wallace, as substitute trustee, had effect to validate such sale as to Estelle. This aspect of the case is governed, therefore, by the principles laid down by our Supreme Court in McDonald v. Miller, 90 Tex. 309, 39 S. W. 89. In legal effect the situation is the same as if Estelle himself had deeded the land to the bank, as holder of the senior mortgage debt, in satisfaction of that debt. The bank is invested with the entire equitable title, shielded by the prior mortgage lien of the bank, which equity keeps alive for that purpose. The bank also holds the equity of redemption from that lien, and that equity stands charged with the judgment liens of Mrs. Hart and Mrs. Allen. In -a word, the only property right, in respect of the Mitchell tract, which is subject to these judgment liens, is the equitable right to redeem the land from the bank’s senior mortgage lien by paying the senior mortgage debt, •and thus acquire full title to the land. The bank, however, has, in turn, the right to defeat a foreclosure sale under said judgment liens by paying, prior to such sale, the indebtedness secured by the judgment liens. In this connection, it is noted that there is no testimony to show that the value of the land did not exceed the senior mortgage debt. On the contrary, the converse of this was shown by the undisputed testimony. This being the state of the case, in this respect, the trial court erred in refusing a foreclosure of the judgment liens of Mrs. Hart and Mrs. Allen. In order to have defeated such foreclosure, without paying the judgment lien debts, it was incumbent on the bank to prove, as a fact, that the value of the land did not exceed the senior mortgage debt for which the land was taken. With that fact proved, the trial court would have been justified in refusing to foreclose said judgment liens, for the reason the right of redemption, against which the latter liens exist, would have been shown to be bu,t an empty one. Silliman v. Gammage, 55 Tex. 365; Fidelity & Deposit Co. of Maryland v. Albrecht (Tex. Civ. App.) 171 S. W. 819 (writ refused); Citizen’s Nat. Bank v. Strauss, 29 Tex. Civ. App. 407, 69 S. W. 86 (writ refused).

The contention of the bank, to the effect that a tender to the bank, of the amount of the senior mortgage debt held by it, is a prerequisite to a foreclosure of the judgment liens in question, is overruled. Had such a tender been made by Mrs. Hart and Mrs. Allen, the bank would not have been required to accept it. McDonald v. Miller, supra.

With reference to the branch of the case involving the Mitchell tract, the Court of Civil Appeals, in reversing and remanding the cause, instructed the trial court, among other instructions, to foreclose the bank’s senior mortgage lien on the Mitchell tract, and also the judgment liens of Mrs. Hart and Mrs. Allen as against the land itself. Such instructions are not in keeping with the rights of the respective parties, as hereinabove set out. The bank does not seek, in this suit, a foreclosure of its senior mortgage lien which equity treats as still subsisting for the protection of the bank, and it cannot be compelled to submit to such foreclosure at the instance of the junior lienholders, Mrs. Hart and Mrs. Allen. McDonald v. Miller, supra.

We now turn to the branch of the case which involves the Atkinson tract. The controversy here, relative to this branch of the ease, is between Mrs. 1-Iart and Mrs. Allen on the one hand, and L. O. Estelle, Jr., and John R. Estelle, on the other. Mrs. 1-Iart and Mrs. Allen, in pleading- their cause -of action with reference to said judgment liens, alleged facts showing the regularity and subsistence of their judgment liens, and, in addition, alleged facts which, if taken as true, would establish the ownership of the Atkinson tract in D. C. Estelle, both at the time of trial and the time said abstracts of judgments were recorded; and further that any right or claim of L. O. Estelle, Jr., and John R. Estelle, if any they had, was subordinate to the said judgment liens.. The two last named, while in effect conceding that L. O. Estelle held the legal title to the land, pleaded an equitable title in themselves. The nature and basis of this equitable title, as pleaded by the Estelle sons, will appear further on. Eurther details are not necessary for a discussion of the particular question which will be now taken up. Mrs. 1-Iart and Mrs. Allen contend that the trial court erred in refusing their request for a peremptory instruction to the jury to return a verdict in their favor against L. C. Estelle, Jr., and John R. Estelle. As furnishing ground for such contention, Mrs. Hart and Mrs. Allen say that the two last named defendants, for the purpose of securing the right, under district court rule 31, to open and conclude the argument to the jury, and the introduction of evidence, in due season admitted, in conformity to the provisions of said court rule, the cause of action alleged by Mrs. Hart and Mrs. Allen with reference to the Atkinson tract. The record before us does not, however, disclose such a situation. It is quite true that there appears in the transcript a paper which purports to be an admission by the Estelle sons, as prescribed by said court rule, and which bears the file mark of the clerk; but there is nothing in the entire record to show that such paper, or such purported admission, was ever presented to the trial court or the jury, or that the trial court took any action at all with reference thereto. It does not appear, even, that said defendants opened and concluded the argument and the introduction of evidence in the case. Regardless, therefore, of other considerations, the contention of Mrs. Hart and Mrs. Allen in this respect is overruled, for the reasons shown.

This brings us to the question as to the operation of the judgment liens of Mrs. Hart and Mrs. Allen as applied to the equitable title which the Estelle sons claim to the Atkinson tract. The relevant facts are substantially as follows: In the year 1911, one Atkinson, the owner of said tract, deeded same to L. O. Estelle. The consideration therefor was paid by Estell'e from the separate funds of his wife, who was then living. Mrs. Estelle subsequently died intestate, leaving her husband, and their two sons, D. O. Estelle, Jr., and John R. Estelle, surviving. In 1925, after Mrs. Estelle died, L. O. Estelle executed to his two sons the following instrument relating to the Atkinson tract:

“Belton 9-2-25
“To John R. & L. C. Estelle, Jr. This is to show that the Home place in Cameron, Gardner Addition to Cameron, bought of B. P. Atkinson, was bought by your mother with her own money for you boys as a home & I do not hold any of my money in to this property & I want you to know I drew $500-.-00 out of courts at Milam Co. Cameron, Texas, which belong to you Boys & Give to you Boys all my rights & Interest in this property.
“D. C. Estelle.
“This to be put away in event anything should happen to me. This will show your rights & title to this property.”

The above instrument was never put of record, and no notice of the instrument or of the rights of L. C. Estelle, Jr., and John R. Estelle has been brought home to Mrs. Hart and Mrs. Allen, prior to the recording of the abstracts of judgment against L. C. Estelle. Upon the foregoing- facts, some of which are undisputed, and others established by the verdict of the jury on special issues, the trial court entered judgment in favor of L. O. Estelle, Jr., and John R. Estelle, denying a foreclosure of the judgment liens of Mrs. Hart and Mrs. Allen. The Court of Civil Appeals held in effect (1) that, since the consideration paid to Atkinson for said tract of land was the separate funds of Mrs. Estelle, the latter’s husband, L. C. Estelle, took the title to the land under the deed from Atkinson, charged with a resulting trust in favor of her (Mrs. Estelle); (2) that this resulting trust in favor of Mrs. Estelle, constituting as it did the equitable title to the land, descended, under the statutes of descent and distribution, to her said two sons, at her death, charged with a life estate in one-third of the land in favor of her husband, L. C. Estelle; (3) that neither the accrual of the equitable title to Mrs. Estelle as beneficiary of said resulting trust, nor its transmission, at her death, to her two sons by virtue of the inheritance statutes, falls under contemplation of those provisions of article 6627, which provide that: “All bargains, sales ¿nd other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance- or for a term of years * shall be void as to all creditors, * * * unless they shall be acknowledged or proved and filed with the [county] clerk, to be recorded as required by law”; consequently the judgment liens of Mrs. Hart and Mrs. Allen did not attach to the interest in the land which the Estelle sons inherited from their mother, regardless of the fact that the above-quoted instrument, which shows a written acknowledgment by L. C. Estelle of their said interest, has never been put of record; (4) that the gift by L. C. Estelle to his two sons, of his life estate in one-third of said land, which is purported, by said instrument, constitutes a conveyance of said life estate, within the meaning of the terms of the above statute, and, since same has not been recorded as there provided, is void as to Mrs. Hart and Mrs. Allen, who had no notice thereof at the time their judgment liens arose by virtue of Article 5449 of the Statutes.

Each of these holdings of the Court of Civil Appeals is correct. A discussion of them would be but to repeat, in substance, what has been so well said by Chief Justice Mc-Clendon, speaking for said'court. Abundant authority for the above holdings of that court may be found in the following decisions of our Supreme Court; Johnson v. Darr, 114 Tex. 516, 272 S. W. 1098; McKamey v. Thorp, 61 Tex. 648; Parker v. Coop, 60 Tex. 111; Grace v. Wade, 45 Tex. 522.; Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854; Central City Trust Co. v. Waco Building Ass’n, 95 Tex. 48, 64 S. W. 998; Paris Grocery Co. v. Burks, 101 Tex. 106, 105 S. W. 174; McKeen v. Sultenfuss, 61 Tex. 325; Blankenship v. Douglas, 26 Tex. 227, 82 Am. Dec. 608.

The Court of Civil Appeals affirmed the judgment of the trial court, in favor of L. C. Estelle, Jr., and John R. Estelle, except as to the life estate in one-third of the Atkinson tract which they acquired from their father; but in all other respects the judgment of the trial court was reversed and the cause remanded, with instructions. In the respect that the judgment of the Court of Civil Appeals affirms the judgment of the trial court, as stated, and in all the respects that the trial court’s judgment is reversed, and the cause remanded, the judgment of the Court of Civil Appeals should be affirmed, and we so recommend. We further recommend that all instructions of the last-named court be set aside, and that the trial court be instructed to enter judgment in accordance with this opinion; and, further, that said court determine the amount of the hereinabove mentioned senior mortgage lien debt of the bank, and state same in said judgment.

CURETON, C. J.

Judgment of the Court of Civil Appeals is affirmed, with instructions, as recommended by the Commission of Appeals.


author: SHORT, P. J. CURETON, Q J.

text:
    POSEY v. COMMERCIAL NAT. BANK et al.
    No. 1345—5893.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    E. A. Wallace, of Cameron, for plaintiff in error.
    Cunningham, Moursund & Johnson, of San Antonio, for defendants in error.
   SHORT, P. J.

The following brief yet comprehensive statement of the nature and result of this case is made by the plaintiff in error, in her application for the writ of error:

“This case was brought by the plaintiff in error, Mrs. Mary Y. Posey, against the defendants in error, The Commercial National Bank, et als., in the District Court of Milam County, primarily to remove cloud cast upon her title to her homestead, by the defendants in error having recorded in that county (the homestead being in the City of Cameron) abstracts of judgment in their favor against U. H. Posey, the divorced husband of the plaintiff in error, and, in the alternative, to charge against one-half of the property one-half the amounts expended by her in the support of the minor children of herself and said husband prior to and subsequent to the divorce, and for one-half of the payments made by her in discharging pavement liens fixed against the property subsequent to the divorce.
“The defense was (defendant in error Neely having disclaimed) that the said L. H. Posey had conveyed to his wife, while the divorce suit was pending, one-half interest in the homestead, together with the right to the use thereof during life, and, the divorce haying thereafter been granted, thereby his homestead estate in the property was terminated as a matter of law because, thereafter, his estate in the property was one in remainder which would not support the homestead estate ; therefore, the abstracts of judgment attached as liens, which they sought to have foreclosed by cross action.
“The case was tried to. the court December 5, 1029, and judgment was given plaintiff in error upon her primary cause of action removing the cloud upon, and quieting her title to the property, and denying the cross relief sought by defendants in error. Upon appeal to the Honorable Court of Civil Appeals for the Third Supreme Judicial District by defendants in error, the judgment of the trial court was in part reversed and remanded to that court with instructions to foreclose the judgment liens upon one-half of the property, and to order sale thereof, but to withhold writ of restitution until the life estate conveyed to plaintiffs in error by said deed was terminated.”

The opinion of the Court of Civil Appeals is reported in 34 S.W.(2d) 678.

The application for the writ of error asserts that the opinion of the Court of Civil Appeals in this case is in conflict with the opinions in several cases mentioned, and the writ of error was granted on account of the conflicts alleged. We think the Court of Civil Appeals was correct in every one of its holdings, except that which is assigned in the following statement as error, and we will not discuss these correct holdings as they are immaterial to the decision of the case. The following assignment of error pertinently presents the matter, which we think necessary to discuss: “The court erred in sustaining the first proposition contained in the brief of the appellants, and their assignments of errors Nos. 1, 2, 11, 13, 16, 17, and 18, upon which such proposition is based, by holding in its opinion that the conveyance to appellee by L. H. Posey, her former husband, of a right to the use of the homestead of the family during life, constituted, as a matter of law, an abandonment of his homestead estate in the property in question, notwithstanding the undisputed facts of the record that such property was dedicated as the homestead of the family of said L. H. 'Posey by actual and continuous usage by his family since February 25, 1910, and! that at the time of the making of the conveyance in question said property was still used by him as the homestead of the family; and regardless of the fact that at the time the conveyance was made a suit was pending against said L. I-I. Posey by appel-lee for a divorce, and that such conveyance, by the recitals thereof, and by the undisputed evidence in the record, showed that the consideration therefor, and the purpose and intention of the maker, L. H. Posey, was to avoid the necessity of the court in which the divorce case was pending, making an adjudication to appellee of the usage of the homestead for herself and minor, children; and that the consideration for said conveyance accruing to L. H. Posey, and his purpose and intention in making it, was to secure, and to preserve his homestead; and regardless of the fact that the decree of divorce made no award of the custody of the children, and no disposition of the property, and of the further fact that his said minor children continued to occupy the property as his homestead up to the time he conveyed to appellee his entire estate in the property, and that she and her minor son were still using it at the time of the trial below, and that never for a moment since 1910, when the homestead was purchased and dedicated, to the time of the trial, had the family of D. I-I. Posey ceased to occupy and use the property as their homestead.”

The proposition presented under this assignment, which we think is the correct statement of the law of the case, is as follows: “First Proposition. Posey’s conveyance to his wife of her one-half interest in the home with the right to use the whole, under the attending circumstances, and for the consideration and purposes shown in the assignment, was not such an alienation of the property as destroyed his homestead estate therein.”

The effect of the particular holding of the Court of Civil Appeals, in its opinion, is that so long as the marital relations continued between the parties, the homestead character of the property remained, but that Posey’s act in conveying to his wife one-half of the property, with the right to use his half during life, constituted an abandonment of the homestead as a matter of law, and thereafter Posey had only an interest in the remainder of the property, which could not support a homestead right therein, regardless of the undisputed fact that the conveyance in question expressly stated that it was made for the consideration and purpose of avoiding an adjudication in the divorce case brought by his wife agaipst him, of the identical rights conveyed to her by Posey, to which right the conveyance recognized she was entitled, and that the court should adjudicate to her, and notwithstanding the undisputed evidence that the property had been the homestead of the parties for many years prior thereto, actually occupied and used by Posey’s wife and minor children at the time of the divorce, and which use and occupancy by his children was continued to the very moment of trial, and notwithstanding Posey’s undisputed evidence that he made the conveyance in the form it was, for the purpose of preserving the homestead which he never intended to give up.

The Court of Civil Appeals cites several cases in support of its holding, but we have examined all of these cases and find the facts radically different from the facts in this case in every one of them, and therefore we have concluded that the cases cited by the Court of Civil Appeals are not applicable to the facts in this case. In the case of Massillon Engine & Thresher Co. v. Barrow et al., 231 S. W. 368, Section A of the Commission of Appeals said in effect, among other things, that a son living with his widowed mother upon land which she claimed as her homestead was precluded from asserting a homestead interest in the same land which she claimed as her homestead, for the reason that one claiming a mere interest in the remainder is without any right to possession necessary to found a claim of homestead. The Court of Civil Appeals concluded that Posey had only an interest in the remainder of the property involved, and therefore this interest in the remainder, without any right of possession, was insufficient upon which to found a claim of homestead. That is a correct principle of law, in the case cited, for the reason that the son never had fixed any homestead interest in the property, and only had an interest in the remainder as the heir of his mother.

A recorded lien, such as the defendants in error have, attaches to land as soon as it has lost its homestead character by abandonment, and hence the Court Of Civil Appeals having concluded from the testimony that L. ■H. Posey had abandoned his homestead when he executed the deed conveying to his wife a life estate in one-half of the property, it necessarily determined that the defendants in error were entitled to the judgment which was rendered by the Court in their favor. Marks v. Bell, 10 Tex. Civ. App. 587, 31 S. W. 699; Glasscock v. Stringer (Tex. Civ. App.) 33 S. W. 677.

There can be no question but that the property involved in this case had been dedicated as a homestead of L. H. Posey from 1910 up to 1926. The only way, after a property has been designated as a homestead, for it to lose its homestead character, is by death, abandonment, or alienation. All are questions of fact, and so in this case the abandonment by L. H. Posey of his homestead must be ascertained from the testimony, and in determining whether he had in fact abandoned the property, it becomes necessary to ascertain his intentions with reference to the act of abandonment. If L. H. Posey intended to abandon the property as a homestead, then he abandoned it. If he did not intend to abandon it, he did not abandon it.

There was no testimony introduced by the defendants in error on this subject. All the testimony on this subject was introduced by the plaintiffs in error. They introduced the deed of L. H. Posey conveying to Mary Viola Posey the right to use the property,- and to appropriate all rents and revenues therefor during the term of her natural life, but no further, and the preamble to this deed indicates why it was made. This preamble is as follows: “Whereas, L. H. Posey and his wife, Mary Viola Posey are permanently separated and divorce proceeding is now pending between them in the District Court of Milam County, Texas, And Whereas the homestead rights, of Mary Viola Posey could be adjudicated in said proceeding, but said parties prefer to adjudicate them themselves, since, L. H. Posey wishes his wife’s interest in said homestead property which is community property to be fully protected.” Then follows the language conveying the life estate. The date of this instrument is December 8, 1926. On January 17, 1929, L. H. Posey executed another instrument which is decreed to be in compliance with the agreement between himself and his wife at the time of their divorce, and therefore in settlement of all claims by the wife upon the husband for a contribution in supporting the minor children of the parties. This instrument of L. Hu Posey conveys to Mary Viola Posey the property involved in fee simple. The divorce was granted on the 31st day of December, 19-26. L. H. Posey testified, among other things, as follows:

“Prior to the divorce I had deeded a life estate in my one-half of said property to Mrs. Posey, and up to that time I had never abandoned my homestead in said property. At the time this deed was made the youngest boy was a minor. * * I made this deed so that the minor children would have a home and deeded it to Mrs. Posey for lifetime so it could be saved and could not be sold while they were minors and in case anything happened to her I could come back home and raise my children until they got grown and self supporting. * * * I did not have any intention at any time of giving up my homestead rights in this place. I have not acquired a homestead any other place nor any real property anywhere else. * ⅜ * I have never disputed my legal and moral obligation to help pay the expenses of supporting and maintaining the children, and Mr. Wallace, in his letter, proposed a method of settlement and stated that Mrs. Posey was in financial straits, and that I was obligated morally and financially to help her, and that I could deed her my interest in the place as payment, which was gladly accepted, there being nothing else to give. * * * I was trying to protect my home for my children, and if anything happened I could come back to them at that home and take care of the children. * * ⅜ I was interested at that time in establishing a home for the minor cbild-dren. * * ⅜ I deeded the place like I did so as to have ‘a home for my children,’ and I wanted their mother to live in the home with the phildren. I did not do it so that I could live in it myself unless something-should happen to her, then I would have the home for myself and the children, and I intended at the time I executed the deed to come back if Mrs. Posey died. * ⅜ * I paid $3,000.00 for the property at the time I bought it, and it had one small cottage on it; $3,000.00 being the total consideration. I had intended to execute the first deed to Mrs. Posey to occupy it as my homestead in the event of her death and that with reference to the following provision in said deed:
“ ‘That whereas, the homestead rights of Mary V. Posey could be adjudicated in^ said proceeding, but said parties prefer to adjudicate them themselves since L. H. Posey wants his wife’s homestead interest in said property, which is community, to be fully protected.’ I did not draw the deed, hut I signed it as my deed to her. * '* What I wanted to do, I wanted the property to be so it could nob be sold, and it would be a home to my children.”

We think this testimony is sufficient to show that the property involved has been dedicated as the homestead of D. H. Posey, and that it continued to be such homestead after the instrument, dated December 8, 1926.

In the case of Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896, it is in effect held that, “though a man be divorced from his wife and she entrusted, by the decree with the custody of the children and possession of the home, his status as the head of the family is not lost nor his obligations to his children terminated, and his right'to a homestead remains.” In that case the wife obtained the decree of divorce .against her husband, awarding her custody of their minor children, title to one-half the homestead, which was community property, and possession of the entire homestead, with a judgment for damages against him for an assault committed on her. Under this decree she was placed in possession of the homestead, and under the judgment for damages the husband’s interest therein was sold and bought by her. He retained and supported the children, she making no effort to obtain their custody; and with them, on her selling the entire homestead to third parties, he moved upon it, claiming one-half of ■ his homestead. It was held “that his homestead rights were not terminated by the decree of divorce, nor by the order permitting her to occupy it with the children, which merely suspended them, nor by the sale of his interest under execution; and that when she sold it and abandoned possession, he had a right to resume occupancy of his half thereof, with the children.”

There being no testimony contradicting the testimony of L. I-I. Posey, as to the fact that he had never intended to abandon his homestead rights in the property, and explaining his deed to his wife, dated December 8, 1926, and the trial court having found this testimony to be true, and its sufficiency, except as a matter of law, not being assailed or called in question by the Court of Civil Appeals, the latter court had no authority nor legal right to set aside this finding of fact by the trial court. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Tweed v. Western Union Tel. Co., 107 Tex. 247, 166 S. W. 696, 177 S. W. 957; Beck v. Texas Company, 105 Tex. 303, 148 S. W. 295; Tunnell et ux. v. Reeves et ux. (Tex. Com. App.) 35 S.W.(2d) 707.

As we understand the Court of Civil Appeals, it did not intend to set aside this finding of fact by the trial court, but merely held that the testimony, as a whole, demonstrated as a matter of law that D. H. Posey had abandoned his homestead rights in the property, and that the only interest he had in the property was that of a remainderman, after the death of his wife, with no right of possession of the property, except by virtue of his interest in the remainder. Accepting this proposition as a correct one, the liens of the defendant in error were necessarily attached because the homestead character of D. H. Posey in the property has ceased to exist. We are of the opinion the deed of T)e-cember 8, 1926, in connection with the testimony of D. I-I. Posey, conclusively establishes the fact, which the trial court found to be a fact, that D. I-I. Posey had never intended to abandon his homestead rights in the property, and that said homestead rights remained, notwithstanding the execution of the deed of December 8, 1926, which had only the legal effect to give to the wife what the court in the divorce suit would have had the right to have given her, and under the authority of Speer & Goodnight v. Sykes, supra, such a judgment did not have the effect to deprive the husband of his homestead rights. We are also of the opinion that the deed of December 8, 1926, was not the voluntary act of D. H. Posey, but that it was coerced by the influence of the knowledge of the fact that the court could and probably would give to the wife the use of the entire property during her lifetime.

We think a proper construction of article 16, § 50, of the Constitution protects from forceé sale the homestead for the payment of all debts, except the purchase money thereof, or a part of the purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and that no mortgage, trust deed, or other lien on the homestead shall ever he valid except for the purchase money therefor, and improvements made thereon. The policy of the law even goes further in the protection of the family by providing in article 16, § 52, among other things, that even after the death of the husband and wife, the guardian of the minor children of the deceased father and mother may be permitted, by the order of the court having jurisdiction, to use and occupy the homestead. We are unwilling to disrupt this policy of the state, as exemplified in its Constitution and laws, by .giving our sanction to that portion of the opinion of the Court of Civil Appeals which holds that, as a matter of law, the record in this ease shows that L. IT. Posey had abandoned his homestead rights in the property involved.

We think the judgment of the trial court was in accordance with the law, and the facts as to the matter discussed, and we recommend that the judgment of the Court of Civil Appeals be reversed, and that of the district court affirmed.

CURETON, Q J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


author: ORITZ, J. CURETON, C. J.

text:
    GREER v. THAMAN et al.
    No. 1602—5991.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    King, Wood .& Morrow and W. S. Jacobs, Jr., all of Houston, for plaintiff in error.
    Robert L. Sonfield, of Houston, for defendants in error.
   ORITZ, J.

This suit was instituted in the district court of Harris county, Tex., by Mrs. Wilheli mina Thaman and her husband, against Webb Greer, owner of Red Star Bus Line, to recover damages on account of personal injuries alleged to have been suffered by Mrs. Thaman while a passenger on a bus belonging to Greer. The case was submitted to a jury in the district court on numerous special issues, and, based on the jury’s answers thereto, judgment was rendered for the Tlia-mans for $4,604.85. ' This judgment was affirmed by the Court of Civil Appeals. 38 S.W.(2d) 378. Greer brings error.

The undisputed evidence shows that any Injuries Mrs. Thaman may have received resulted on account of the bus in which she was riding as a passenger for hire turning on its side in a ditch alongside the public road on which it was traveling. It is undisputed that Greer owned the bus and was operating it by his employee on the occasion in question.

The jury, in' response to appropriate questions, found the driver of the bus negligent in failing to keep a proper lookout ahead of him, and found Greer negligent in failing to have the bus equipped with an adequate windshield wiper. The jury also found that the above acts of negligence directly and proximately produced the injuries complained of. Greer’s answer contains, among other things, a general denial, and an allegation that Mrs. Thaman’s injuries, if any, were caused by an unavoidable accident. Of course, it was not necessary to specially plead unavoidable accident as a defense. That defense is always available under a general denial, if the evidence raises it.

Greer seasonably requested the trial court to submit to the jury the issue as to whether Mrs. Thaman’s injuries were the result of an unavoidable accident. The issue was refused. The Court of Civil Appeals holds that such refusal does not constitute reversible error. Greer presents this ruling to the Supreme Court by proper assignments.

For the purpose of deciding the question as to whether the trial court committed reversible error in refusing to submit the issue of unavoidable accident, we take it for granted that the jury’s findings that Greer and his driver were guilty of negligence which produced Mrs. Thaman’s injuries are supported by the evidence. Notwithstanding such finding, however, we think the evidence also raises the issue of unavoidable accident. This being true, Greer was entitled to have such issue directly submitted to the jury for a finding. Of course, if Greer and his driver were guilty of negligence which proximately caused Mrs. Thaman’s injuries, and she was not guilty of contributory negligence, her injuries could not have been the result of an unavoidable accident; but Greer had the right to demand the direct submission of his defense as raised by the evidence according to the state thereof before, and not after, it was interpreted by the jury. In other words, in order to accord each party a fair trial, our rules require that the theories of each party be directly submitted where raised by the evidence; and this right cannot be lost or defeated by jury findings on other issues, which, in effect, indirectly negative a favorable finding on an issue not submitted, but raised by the evidence. Dallas Railway & Ter. Co. v. Garrison (Tex. Com. App.) 45 S.W.(2d) 183; Northern Texas Traction Co. v. Woodall (Tex. Com. App.) 299 S. W. 220; Montrief & Mon-trief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276; Galveston, H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534: Missouri, K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058.

We now come to consider the question as to whether the evidence raises the issue of unavoidable accident.

It is undisputed that Mrs. Thaman’s injuries resulted because the bus in which she was riding as a passenger for hire turned on its side in a ditch by the side of the public road on which it was traveling. It was the contention of the Thamans that the bus was caused to turn over by the negligence of Greer and his driver. On the other hand, it was Greer’s contention that the bus turned over solely on account of conditions and circumstances which existed at the time, and which neither he nor his driver could have foreseen or prevented by the use of that very high degree of care and prudence required of carriers of passengers for hire.

The evidence further tends to show that on the occasion of this event it was raining, and the road narrow and the' shoulders thereof soft and easy to cave. The evidence further fends to show that neither Mrs. Thaman, Greer, nor the driver were guilty of any act of negligence. The evidence then tends to show that just before the accident the bus was traveling along the right-hand side of the road, barely moving; that three cars were approaching on the same road coming from an opposite direction; that the first of such cars was coming around a bend in the road, and was running pretty fast; that it was night, and the lights of the three approaching cars bright and blinding; that, on account of such conditions, the driver of the bus pulled over on the side of the road, and stopped, or almost stopped, with his right front wheel near the edge thereof; and that at this instant the ground under such wheel gave way, and thereby caused the right wheels of the bus to slip or roll into the ditch, causing such bus to turn on its side in the ditch.

We think the other evidence above stated, together with the evidence as to the caving of the ground under the wheel of the bus, raises the issue of unavoidable accident. This being true, the trial court committed reversible error in refusing to submit it. Dallas Railway & Ter. Co. v. Garrison, supra; 39 Cyc. 666.

In submitting the issues of negligence, the trial court defined the term “proximate cause” as follows:

“Proximate cause of an injury, as the term is used in this charge, in its legal signification, is a cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which the event would not have occurred. '
“But, in order to warrant a finding that negligence is a proximate cause of an injury, it must appear from the evidence that the injury was the natural and probable consequence of the negligence and ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of attending circumstances.”

Counsel for Greer excepted to the above charge on the ground that it failed to define the term “new and independent cause,” used therein, and at the same time tendered and requested a correct charge defining the latter term. The trial court overruled the exception and refused the charge requested. This was error. “New and independent cause” is a term or phrase of technical meaning, and a court cannot presume that ordinary jurors can comprehend and apply it. Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570.

The Court of Civil Appeals holds that no error was committed in refusing to define the term “new and independent cause,” because no such issue was in the case. Our ruling that unavoidable accident is in the case adversely disposes of this holding.

Further discussing the failure of the .trial court to define the term “new and independent cause,” used in his definition of “proximate cause,” we wish to say that all negligence cases do not involve the issue of “new and independent cause,” and such cases do not require a charge defining the latter term, but from a standpoint of pure logic it must be held that, where it is necessary to use the term “new and independent cause,” in defining “proximate cause,” it is also necessary to define the term “new and independent cause.” This is. because article 218&, R. C. S. 1925, requires the court to “submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” In other words, in a case where it is necessary to define a term, it is also equally as necessary that the jury understand the terms used in the definition. Of course, it is never necessary to define terms of such simple meaning that they are presumed to be understood by the average men who compose our juries.

We recommend that the judgment of the Court of 'Civil Appeals and district court be both reversed and the cause remanded to the district court for á new trial.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

.We approve, the holdings.of the Oommission °i Appeals on the questions discussed in its opinion,


author: CRITZ, J. CURETON, C. J.

text:
    HUMBLE OIL & REFINING CO. v. JEFFREY et al.
    No. 1606—6006.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    Webb & Felts and Edwin G. Moorhead, all of Austin, and R. E. Seagler, of Houston, for plaintiff in error.
    Maynard & Maynard and Page & Powell, all of Bastrop, and Black & Graves, of Austin, for defendants in error.
   CRITZ, J.

The question presented by this appeal in this court is very simple. Humble Oil & Refining Company sued Wm. F. Jeffrey and a number of other persons in the district court of Bastrop county, Tex., in trespass to try title to 32.23 acres of land in that county, it is not necessary to state in detail the facts alleged by the defendants who answered; it is sufficient to say that the defendant Jeffrey’s answer pleads a general denial, plea of not guilty, pleas of three and five year statutes of limitation, and pleas of res adjudica-ta and estoppel. At the close of the oil company’s testimony, and after it had rested, and before any of the defendants had offered any testimony whatever, both the oil company and Jeffrey moved for an instructed verdict. The motion nf Jeffrey was granted, and the jury so instructed. The verdict was returned as directed, and judgment entered accordingly.. The oil company appealed to the Oouyt of Civil Appeals at Austin, and that court, in an opinion by Judge Blair, reversed the judgment of the district court as regards the oil company and remanded the cause for another trial. 38 S.W.(2d) 374. The oil company brings error.

The opinion of the Court of Civil Appeals, in effect, holds that the evidence offered by the oil company was sufficient in law to sustain a verdict in its favor. The Court of Civil Appeals also further holds that the trial court erred in excluding certain other evidence offered by the oil company tending to support its title to the property in litigation.

The- oil company here contends that, since its evidence as offered proves its right to recover, and since the defendant Jeffrey offered no evidence whatever to dispute or controvert the same, the Court of Civil Appeals' should have reversed and rendered the judgment of-the trial court in its favor, instead of reversing and remanding the cause as it did. We overrule this contention.

The record shows that Jeffrey pleaded certain defenses to the oil company’s petition. We do not know whether he can prove such defenses or not, as he was relieved of any necessity to do so by the ruling of the trial court on his motion for a peremptory charge. Such a record did not call for a rendered judgment for the oil company in the Court of Civil.Appeals, and does not call for such a judgment here.

An appellate court is slow to render judgment after it has reversed the judgment of a trial court, and will not do so if the ends of justice will be better subserved by a remand. Saner-Whiteman Lumber Co. v. T. & N. O. R. Co. (Tex. Com. App.) 288 S. W. 127; Dominguez v. Garcia (Tex. Com. App.) 53 S.W.(2d) 459; 3 Tex. Jur. p. 1215, § 852 et seq. and notes.

In the case at bar we are unable to say what defenses the defendant Jeffrey will be able to prove at another trial, and therefore we are not able to say that the facts of this case are fully developed.

The oil company seems to contend that rendition should follow a reversal of the trial court’s judgment, unless the record affirmatively shows that the evidence has not been fully developed. We think the converse is the rule; that is, that a case will not be rendered following a reversal unless it clearly and affirmatively appears from the record that the evidence has been fully developed.

Finally, we wish to say that the instant case does not involve the effect of a demurrer to the evidence, and we expressly pretermit any discussion of that question.

We recommend that the judgment of the Court of Civil Appeals, which reverses the judgment of the district court and remands the cause for a new trial be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.