author: DIES, Chief Justice.

text:
    Noble Price PARKER, Appellant, v. John KILGORE et al., Appellees.
    No. 8052.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 26, 1978.

      Homer L. Cox, Houston, for appellant.
    0. N. Baker, Houston, for appellees.
   DIES, Chief Justice.

In November 1971 the Alief Church of Christ acquired property in Harris County by general warranty deed. A church was built on this property. A majority of the members of the church approved certain restrictions which specify in great detail the doctrinal teachings that may and may not be advanced on the property, including the following:

“This property is restricted against false teachers, preachers, pastors of any and every kind. Those who advocate the theories of denominationalism, compromise, pre-millennialism, post-millenialism, liberalism or any other speculative or divisive theory, namely anti-ism of any kind, those opposing orphan homes, cooperation with other congregations or those opposing any scriptural work the scriptural elders or servants of the church shall lead in doing for the advancement of the Cause of Christ, which are causing divisions among Christians, disturbing the peace of the churches of Christ, shall be debarred from preaching or teaching on these premises, except in the event of a public discussions of these matters by faithful Gospel Proclaimers contending for the faith against error.”

This suit was brought by plaintiff Noble Price Parker against John Kilgore and other members of the church contending these doctrinal restrictions were not being observed by the church. Plaintiff prayed for an injunction against defendants “enjoining them from violating the restrictions . for judgment ordering the Defendants to give to Plaintiff . . all keys, books of records, check book, bank account, book of minutes of business meetings, all records and/or cards received from any and all persons who have visited the services. .

The trial court found that these doctrinal restrictions were void because of Tex.Rev. Civ.Stat.Ann, art. 1293a (Supp.1977).

The trial court lacked jurisdiction to entertain the suit because the pleadings of the plaintiff tendered the “departure from-doctrine” issue in contravention of the First Amendment to the Constitution of the United States. This is made abundantly clear by this sentence found in plaintiff’s statement under his first point in his brief:

“The restrictions made the basis of this cause of action only defines and determines the teachings and type of worship to be permitted on the subject property while it is owned by the Alief Church of Christ.”

Since the United States Supreme Court decision in Presbyterian Church v. Hull Church, 393 U.S. 440, 449-51, 89 S.Ct. 601, 606-607, 21 L.Ed.2d 658, 665-667 (1969), it is clear that the First Amendment forbids civil courts from undertaking to resolve controversies over religious doctrine and practice. As stated by Mr. Justice Brennan:

“[T]he departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.” (393 U.S. at 450, 89 S.Ct. at 607)

Plaintiff could prevail in his litigation only by securing a decree establishing his major premise: that the defendants had failed to follow the particular doctrines and dogma which he asserts support his sole ground of recovery. The trial court did not have jurisdiction to grant or to deny the relief sought, and its only proper action would have been a dismissal thereof.

If at any time .during its progress it becomes apparent that a court has no authority under the law to adjudicate the issues presented, it becomes the duty of the court to dismiss the cause. City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex.Civ.App. — Beaumont 1972, writ ref’d n. r. e.). The judgment of the trial court is reversed, and the cause is dismissed. All costs are taxed against the plaintiff.

REVERSED and CAUSE DISMISSED.

      . That statute follows:
      “Invalidity of deed restrictions based on race, color, religion or national origin
      Section 1. A provision in any deed conveying real property or any interest in real property, or any restrictions affecting real property, whether stated expressly in the deed or restrictions, or incorporated by reference, which provides that the property may not be sold, leased, or transferred to, or used by, any person because of race, color, religion, or national origin, is void and unenforceable.
      Section 2. The courts of this State shall dismiss any suit or part of any suit in which a provision, restriction, or covenant declared void by the provisions of Section 1 of this Act is sought to be enforced.” (Effective June 10, 1969)


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Nancy Mae TRESSELT, Appellant, v. Ernest Frederick TRESSELT, Appellee.
    No. 1226.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 31, 1978.
    Rehearing Denied Feb. 23, 1978.

      Daniel E. Hayes, Bay City, for appellant.
    Robin D. Orr, Orr & Hamlin, Bay City, for appellee.
   OPINION

YOUNG, Justice.

This appeal arose from a suit originally filed on August 22, 1975, by Nancy Mae Tresselt seeking, among other things, a divorce from Ernest Frederick Tresselt. Thereafter, Mr. Tresselt filed a cross-petition, also seeking a divorce. Each party answered the other party’s petition. On October 22, 1976, the matter came on for trial before the court without a jury. Mrs. Tresselt did not appear personally or by attorney, and the case was tried in her absence. On January 24, 1977, the trial court signed the judgment granting Mr. Tresselt a divorce, dividing the property, deciding conservatorship of the children, and providing for child support payments.

Mrs. Tresselt thereafter timely filed her motion for new trial. After a hearing the trial court overruled the motion. Alleging that she was not given adequate notice of the trial held on October 22, 1976, Mrs. Tresselt appeals. We affirm.

In her motion to set aside the trial court’s default judgment and secure a new trial, we note that Mrs. Tresselt has not complied with the applicable rule stated in Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup.1966), as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

In Ivy, the Supreme Court said that the rule is also applicable to default judgments entered on failure of the defendant (cross-respondent here) or his counsel to appear for trial (after answer). Here the appellant failed to “set up” a meritorious defense in her motion for new trial by factual allegations as required in Ivy. For this reason alone it would have been proper for the trial court to have overruled appellant’s motion for new trial.

The appellant here proceeded, however, on her motion for new trial more like the appellants did in Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App. — Corpus Christi 1965, writ ref’d. n. r. e., writ den., 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132). Here, as in Sandoval, the appellant sought and the trial court conducted a complete and thorough evidentiary hearing on appellant’s motion for new trial.

Another applicable rule by which we will be guided here was pointed out in Sandoval and is as follows:

“On appeal from an order overruling the motion for new trial the appellate court will take the most favorable view of the evidence that the trial court was authorized to take. The order overruling the motion for new trial amounts to an implied finding adverse to the allegations in the motion and the reviewing court will assume that the trial court found adversely as to all material facts alleged by the complainant . . . ”

In that regard, the following is a fair summary of the evidence adduced at the hearing on the motion for new. trial. Trial was originally set for February 17, 1976. The trial was postponed, however, and the parties thereafter reconciled.

On June 3, 1976, the parties again separated and began negotiations for a divorce. Several meetings were held in the Matagor-da County courthouse during July and August of 1976, but no agreement was reached. The evidence also indicates that there were several trial dates set, but that appellant sought and received a postponement of each trial setting. At a meeting of the parties and their attorneys near the end of August, 1976, a trial date for the week of September 27, 1976, was agreed to. The record further indicates that appellant was instructing her attorney, Ms. Lucille Clayb-ourne, to delay the trial as long as possible; that Ms. Claybourne could not obtain reasonable cooperation from appellant; and that therefore Ms. Claybourne was permitted to withdraw from the case by order dated September 20, 1976. On September 21, 1976, Mr. Oren Hamlin, attorney for appellee, wrote to appellant and to Ms. Claybourne reminding them of the trial setting for the week of September 27.

Ms. Claybourne continued to represent appellant as evidenced, by her appearance with the appellant in the district court on September 27, 1976. On this day, the parties met with the trial judge. In appellant’s presence, Ms. Claybourne sought a postponement from the trial judge, who agreed to “put off the case until the next time.” The parties agreed in open court that divorce day fell on the fourth Friday of each month, which in the instant case would have been the 22nd of the next month, October. Mr. Hamlin then informed appellant and Ms. Claybourne that the case would be set for the week of October 18, 1976. Ms. Claybourne then fully withdrew from the case after advising appellant to retain counsel.

Whereupon appellant contacted another attorney, Mr. Perry Young, in connection with the matter. But she did not retain him as counsel. Sometime between October 4 and October 8, Mr. Hamlin talked on the phone with Mr. Young about the divorce while appellant was in Mr. Young’s office. Hamlin told Young that he expected to go to trial on the divorce. On or about October 18, 1976, appellee, Mr. Tresselt, talked with appellant and told her that the trial would be on October 22. Furthermore, Mr. Hamlin wrote a letter to Mr. Young, to appellant and to the District Clerk informing them that the trial would be held on October 22.

At approximately 4:00 a. m., October 22, appellant, who had yet failed to retain new counsel, first saw the letter to her from Hamlin concerning the setting for that day. After reading it, instead of making an appearance, she boarded a bus for Wharton, Texas. As we have mentioned, the matter proceeded to trial that day in her absence.

All of which brings us back to the appellant’s specific complaint in her point of error; i. e., that she was not given adequate notice of the trial conducted on October 22, 1976.

In Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.Sup.1974), the Court stated at page 643:

“Where . . . there is no statute or rule to the contrary, parties over whom the court has properly obtained jurisdiction are expected to keep themselves informed of the time a case is set for trial and are not entitled to notice of the trial other than the setting of the case on the docket.”

Here, the jurisdiction of the trial court is undisputed and there is ample evidence to support the trial judge’s implied finding that appellant had notice of the case being set on the docket for the week of October 18, 1976. Thus, the appellant had the duty to keep herself informed of the trial setting unless there was an applicable “statute or rule to the contrary”.

In this regard, appellant contends that two procedural rules shifted the burden of notification of the trial setting to appellee. First, the district courts of Matagorda County have promulgated a local rule which provides in pertinent part:

“The attorney requesting a setting shall give not less than 30 days notice of such setting to opposing Counsel, unless such notice is by written agreement waived.”

Though it is not clear from appellant’s brief, she appears to be asserting that because there was no written waiver, and because the earliest possible time she could have known about the October 22, 1976, setting was at the September 27, 1976, meeting, only 25 days prior, then the local rule has been violated.

Second, appellant cites Rule 245, T.R.C.P., which provides in pertinent part:

“The court may set contested cases on motion of any party, or on the court’s own motion, with reasonable notice of not less than 10 days to the parties, or by agreement of the parties.”

Appellant apparently concedes that she received 10 days notice but argues that the notice provided for by this rule must be written because of the way in which Rule 21a, T.R.C.P., refers to delivering notice; i. e., copies, by mail, among other things. It is not necessary for us to reach the merits of these contentions as we will hereinafter demonstrate.

We find that any application of the above two rules to the instant case was waived by appellant’s postponing a trial setting for which she had been properly notified. It can hardly be disputed that appellant received adequate notice under both local and state rules for the trial originally set for the week of September 27, 1976. The evidence shows, and the trial judge impliedly found, that appellant was properly notified of this trial setting at the meeting of the parties in late August, 1976. Moreover, the record indicates that appellant made no objection to the trial setting for the week of September 27, 1976, at the meeting held on that day. Furthermore, appellant’s participation in the September 27 meeting constituted a waiver of any irregularity in notification for the trial setting. See Bellah v. First National Bank of Hereford, 474 S.W.2d 785, 786 (Tex.Civ.App. — Eastland 1971, writ ref’d n. r. e.) and Hill v. W. E. Brittain, Inc., 405 S.W.2d 803 (Tex.Civ.App. — Fort Worth 1966, no writ).

During the September 27 meeting, appellant did not object to her former attorney’s making an agreement, in appellant’s presence and on her behalf, to postpone the trial until the next divorce time. Thus, although Ms. Claybourne had withdrawn from the case seven days before this meeting, appellant ratified the agreement entered on her behalf by her acceptance of the benefits of the agreement (postponement of the trial), Rogers v. B & R Development, Inc., 523 S.W.2d 15 (Tex.Civ.App.— Fort Worth 1975, no writ), 7 Tex.Jur.2d, Part 1, Attorneys at Law § 89 (1975).

Finally, the notice given for the week of September 27 trial was sufficient for the October 22 trial in that appellant’s postponement did not nullify the previous notice. 88 C.J.S. Trial § 15 (1955). As a result, we find appellant waived her right to any further notification of a trial setting under both the local and state rules, and had a duty to keep herself informed of the new trial setting. Plains Growers v. Jordan, supra; Oldham v. Heatherly, 17 S.W.2d 113 (Tex.Civ.App. — Austin 1929, no writ); Bray v. First National Bank of Mertzon, 10 S.W.2d 235 (Tex.Civ.App. — Austin 1928, writ dism’d).

The judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Ruby Faye HARPER, Appellee.
    No. 17929.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 2, 1978.

      Don Gladden and Charles Padorr, Fort Worth, for appellant.
    George C. Thompson & Associates, Inc., and Lynne Loeffler and Steve Sucsy, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This suit was brought by United States Fidelity and Guaranty Company (USF&G) against Ruby Faye Harper (Harper) to recover the sum of $4000.00 paid by USF&G as surety on a guardian’s bond whereon Harper was the principal. Both parties moved for summary judgment. The trial court granted Harper’s motion for summary judgment on the basis that USF&G’s cause of action was barred by the two-year statute of limitation as provided by art. 5526.

We REVERSE the judgment of the trial court and RENDER judgment that United States Fidelity and Guaranty Company recover from Ruby Faye Harper the sum of $4000.00 plus interest at the judgment rate of 9% per annum from March 10,1977, until paid. (In its petition, USF&G only sought interest on the $4000.00 from the date of judgment. Accordingly, its relief shall be limited by its prayer.)

On July 9, 1970, USF&G as surety executed a guardian’s bond, which was filed in the Superior Court of the State of California for the County of Alameda in Cause No. 186943 in the Matter of the Guardianship of the Person and Estate of Leola Hewitt, an incompetent person. In that proceeding, Harper was appointed guardian and USF&G was surety on the guardian’s bond. At a hearing on May 6, 1971, Harper was removed as guardian and a successor guardian was appointed. At an August 30, 1971 hearing, the court found that Harper had wasted and mismanaged the ward’s estate and ordered that the guardian’s bond be forfeited with the bond’s proceeds to be paid to the successor guardian. This order was signed on October 21, 1971. On December 21, 1971, pursuant to the court’s order, USF&G paid the sum of $4000.00 to the successor guardian. On January 16, 1975, USF&G filed suit against Harper in the district court of Tarrant County, seeking judgment in the amount of $4000.00.

By its sole point of error, USF&G contends that the trial court erred in applying the two-year statute of limitations as provided by art. 5526 to its cause of action.

Art. 5528 provides:

“All suits on the bond of any executor, administrator or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal or discharge of such executor, administrator or guardian, and not thereafter.”

A surety on a guardianship bond who has been compelled to fulfill a principal’s obligation is entitled to be subrogated to all the rights of the ward or his estate. United States Fidelity & Guaranty Co. v. Adoue & Lobit, 104 Tex. 379, 137 S.W. 648 at 652 (1911), motion for rehearing overruled at 104 Tex. 379, 138 S.W. 383 (1911); 53 Tex.Jur.2d Subrogation § 18 (1964); 73 Am.Jur.2d Subrogation § 58 (1974).

Here, the ward’s cause of action is governed by the four-year statute of limitations as provided by art. 5528; therefore, since the surety stands in the position of the ward, art. 5528 is likewise applicable to the surety’s cause of action. We hold that art. 5528 is the applicable statute of limitations governing USF&G’s cause of action. By its original petition, USF&G has alleged sufficient facts to entitle it to relief by way of subrogation, even though it did not include the term “subrogation.”

We sustain USF&G’s sole point of error.

At the trial below, both parties moved for summary judgment. None of the facts in this case are disputed. In the procedural situation before us, it is the obligation of this court to render the judgment that the trial court should have rendered. Gulf, Colorado & Santa Fe Railway v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). Accordingly, we REVERSE the judgment of the trial court and RENDER judgment that United States Fidelity and Guaranty Company recover from Ruby Faye Harper the sum of $4000.00 plus interest at the judgment rate of 9% per annum from March 10, 1977, until paid. All costs are taxed against Harper.

      . All statutory references are to Tex.Rev.Civ.Stat.Ann.


author: MASSEY, Chief Justice.

text:
    Kenneth Wayne VARNON, Appellant, v. Wanda Leih Monroe ATCHISON, Appellee.
    No. 17942.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 2, 1978.
    Rogers & Hammond and Kenneth W. Boyd, Cleburne, for appellant.

      Blais & Broome, Fort Worth, for appel-lee.
   OPINION

MASSEY, Chief Justice.

Kenneth Wayne Varnon, Petitioner, brought suit against his divorced wife, Wanda Leih Atchison, Respondent, for a change of custody of their minor child, Gary Wayne. After having appeared and filed answer consisting of a general denial, at a date subsequent Respondent filed a motion to dismiss the Petitioner’s suit.

Following a hearing by the court a decree dismissing the suit was entered and Petitioner appealed.

We reverse the judgment and remand the case to be reinstated on the docket of the trial court.

This case poses a situation where, after filing his suit in the proper court, and where, after jurisdiction over the Respondent as well as the subject matter involved was fully vested in the trial court, there was initiated action in a Louisiana court by relatives named Atchison. The Atchisons (step-grandparents of the parties’ minor child, Gary Wayne) sued to obtain a decree awarding custody of such minor as a “neglected” child. The Atchisons, with cooperation of the Respondent, did obtain the decree sought and which purported to award to them custody of Gary Wayne.

After more than thirty days from entry of the Louisiana judgment, Respondent, armed with her authenticated copy of that judgment, moved that the trial court dismiss the Petitioner’s suit for a change of custody. On the strength thereof Respondent persuaded the trial court to enter an order dismissing the Petitioner’s suit.

According to Petitioner’s allegations in his “Answer to Respondent’s Motion to Dismiss” he filed his suit for change of custody on April 28, 1976 (and the transcript record shows that Respondent, Wanda Leih Atchi-son, filed her answer, consisting of a general denial, on June 8, 1976) and that it was after she was served with process in said case that the Louisiana suit was instituted; that, furthermore, he was not notified of the day on which he should appear or answer in the Louisiana case; and that the action in Louisiana by the Respondent and John Henry Atchison was fraudulently taken by them for the sole purpose of depriving him of his right to litigate his suit in Texas.

Furthermore from the allegations of Petitioner we may take as true his averments that it was in 1969, and prior to the enactment of Texas Family Code, that there was the adjudication by a Harrison County, Texas district court of a divorcement of the parties, and that as applied to their minor child, Gary Wayne Varnon, the Respondent was invested as “managing conservator” and Petitioner invested as “possessory conservator”.

From the face of the record, and in view of the Supreme Court opinion in Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.Sup. 1974), we must recognize that upon the filing, on April 28, 1976, of the suit now before us on the appeal for change of custody of the minor child involved the trial court became invested with the duty and obligation to exercise the exclusive “continuing jurisdiction” in the interest of the child. This is by the Supreme Court’s interpretation of Texas Family Code, Title 2, “Parent and Child”, Sub-Title A, “The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship”, Chapter 11, “General Provisions”, § 11.05, “Continuing Jurisdiction”, effective in 1973 and amended in respect immaterial to our consideration in 1975.

It is therefore apparent that as of the time of the hearing upon the Respondent’s motion to dismiss the suit for change of custody that the trial court was invested, under the Texas law, with the exclusive jurisdiction to hear and determine all matters relative to the welfare of the child as pertaining to Petitioner and Respondent. Under this state of affairs the court was presented with the accomplished fact that a Louisiana Court (presumably a court which could have had jurisdiction but for the provisions of Texas Family Code — there having never been in the Texas court any request for notice to be taken that pertinent Louisiana law differs from the law in Texas) had entered at a time more than thirty days antecedent to the date of the hearing its judgment decree that (1) the minor, Gary Wayne Varnon, was a “neglected” child; (2) Petitioner and Respondent in this case, named in the decree, are deprived of custody of the child, with all parental rights terminated; and (3) legal custody and guardianship of the person of the minor child be granted to John Henry Atchison and Lillian Davidson Atchison, with the child committed to their permanent care, custody and control.

At the hearing of the motion to dismiss the suit, the court allowed entry into evidence on behalf of the Respondent the authenticated Louisiana judgment decree over Petitioner’s objection that Respondent had not plead that the Louisiana Court was a court having general jurisdiction or having particular jurisdiction in the premises and had never requested that any notice be taken of Louisiana law that the particular court was a court of general jurisdiction.

The foregoing was proved by the Bill of Exception allowed by the court. Such Bill of Exception further states that upon having admitted the judgment of the Louisiana court “Respondent then requested that he be allowed to call witnesses to show that the Louisiana judgment was void. Respondent’s request was denied and the Court entered Judgment . . .No Court Reporter was present. No witnesses were called to testify.”

We have no doubt and here hold that the trial court erred in denying the Respondent’s request that he be allowed to call witnesses to show that the Louisiana judgment was void. That such judgment was void would have been established by duly authenticated copies of the Louisiana petition of the Atchisons showing date the same was filed, if in fact it was filed after April 28, 1976 when Petitioner filed his suit in Texas, and thereby lodged in the trial court the exclusive jurisdiction to act. That would have been the best evidence, but there was nothing to foreclose using the Respondent herself to perhaps prove the same matter, she being present, or it might have been proved by testimony of some other witness or witnesses. We need consider no other aspect of proof by which Petitioner might have proved the Louisiana judgment void.

We also hold, as by inference we have already stated, that the jurisdiction of the trial court continued to pertain whereby it was error to dismiss the suit of Petitioner. The court, in the absence of proof to the contrary, should have proceeded on the premise that there had been no suit concerning the Parent-Child Relationship involved filed between the effective date of the Texas Family Code and April 28, 1976 when Petitioner filed suit for change of custody. Here there was absence of proof to the contrary, as, for example, would have been proof by the Respondent in support of her motion to dismiss that the Louisiana suit was filed before April 28,1976. As we view the burden incumbent upon the Respondent in this particular case, if she should establish her right to have the suit dismissed, it would have included the obligation to establish such as a fact as a requisite to proving that the Texas court had been deprived of jurisdiction.

Furthermore, it would not be necessary that the Petitioner join the Atchisons as parties to the Texas suit; recognizing, of course, that the Atchisons would be privileged to intervene in such suit should they so desire. The adjudication of the Petitioner’s suit on the merits should proceed, and, there is no doubt that power lies in the trial court — in the event he should prevail — to make such a judgment effective. If it should be necessary earlier, or thereafter, to go into the Louisiana court which rendered judgment and seek a hearing for the purpose of any attempt to have its judgment set aside there is no doubt that by proper procedure there would be availability of hearing.

The judgment is reversed and caused remanded to the trial court for reinstatement on the docket of that court.


author: CORNELIUS, Chief Justice.

text:
    Kenneth RAULSTON et al., Appellants, v. James M. EVERETT et al., Appellees.
    No. 8531.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 7, 1978.

      Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellants.
    Hardy Moore, Paris, Austin Guest, Clarksville, for appellees.
   CORNELIUS, Chief Justice.

In 1967 the plaintiffs O. L. Ford, Thomas Welch, Tinnie Garrison and Conde Rod-riques, together with several other persons, formed the Dimple Grazing Association and incorporated it as a Texas non-profit corporation. It was created under the supervision of and in cooperation with the Farmers Home Administration of the U. S. Department of Agriculture for the purposes of purchasing and holding grazing lands for the joint use of its members. The organization was a membership corporation, as distinguished from a stock corporation, each member being issued a “membership certificate” to evidence his status as a member. The corporation began its existence with some thirteen members. A $411,550.00 loan was obtained from the Farmers Home Administration and was used to purchase approximately 2600 acres of grazing lands. A set of by-laws was adopted which provided, inter alia, that each member would be obligated to graze a specified number of cattle on the land each year and pay the sum of $40.27 per animal grazing unit (being one cow with calf or one bull) per year as grazing fees. The fees were to be used to pay the expenses of the organization and to retire the land purchase note. The by-laws further provided that other assessments could be imposed upon the members by a vote of the directors. According to the by-laws a member’s status could be terminated by a voluntary surrender of his membership certificate or by forfeiture of the same by vote of the directors for failure to pay assessments (as distinguished from grazing fees). The number of members fluctuated through the years, with several members surrendering their certificates and others failing or refusing to graze cattle on the corporation’s land and to participate in the affairs of the organization. The corporation experienced increasing financial difficulties and loss of member participation, and by 1971 only four members, the defendants Kenneth Bishop, Richard Boggess, Jack Pollock and Kenneth Raulston, were grazing cattle on the land, attending meetings and actively participating in the management. At the January 12,1972, meeting a resolution was adopted asserting that those four persons were the only remaining members of the association, and a sale of the corporation’s land was discussed. On February 14, 1973, the sale was effected. The sale of the land produced a net profit of $130,408.20, which was divided equally among the four defendants. On March 16, 1973, a resolution ratifying the sale of the land and purporting to dissolve the corporation was adopted. Thereafter, the plaintiffs Ford, Welch, Garrison and Rodriques, contending that they were still members of the organization on March 16, 1973, filed suit against the defendants individually to recover their pro rata share of the profits from the land sale. Trial was to a jury which found that each of the plaintiffs had waived his membership in the corporation prior to January 1, 1973. The trial court, however, disregarded the jury’s verdict and rendered judgment non obstante veredicto, awarding each plaintiff the sum of $19,-561.23, allegedly being one-eighth of the profits realized from the land sale.

The defendants have appealed from the judgment below contending that the membership rights of the plaintiffs were subject to loss by waiver, and that inasmuch as the jury found that such rights had been waived, the trial court should have entered a take-nothing judgment. The plaintiffs contend that, as a matter of law, they were still lawful members of the corporation at the time the land was sold, and there was no waiver. It was undisputed that plaintiffs’ membership certificates had not been physically surrendered or forfeited or can-celled in accordance with the applicable provisions of the by-laws.

To sustain the trial court’s action in disregarding the jury verdict and rendering judgment non obstante veredicto, we must find either (1) that, as a matter of law, the plaintiffs could not waive or abandon their membership in the Dimple Grazing Association, Inc. short of a surrender or legal cancellation of their membership certificates, or (2) that, if such membership were subject to loss by waiver or abandonment, there is no evidence that such a waiver or abandonment was in fact accomplished.

There are two types of corporations — stock corporations and non-stock or membership corporations. 18 C.J.S. Corporations § 19, p. 399; Schroeder v. Meridian Improvement Club, 36 Wash.2d 925, 221 P.2d 544 (1950). The entity involved here is of the latter type. A non-profit membership corporation, although a corporate entity, is in other respects similar to an unincorporated association, and generally speaking, the same rules concerning members and their rights apply to both. See for example Order of St. Benedict v. Steinhauser, 234 U.S. 640, 34 S.Ct. 932, 58 L.Ed. 1512 (1914); Liggett v. Koivunen, 229 Minn. 114, 34 N.W.2d 345 (1948); Schroeder v. Meridian Improvement Club, supra; Flanagan v. Benvie, 58 N.M. 525, 273 P.2d 381 (1954); Clearwater Citrus Growers’ Ass’n v. Andrews, 81 Fla. 299, 87 So. 903 (1921); Wall v. Bureau of Lathing & Plaster. of Dade County, 117 So.2d 767 (Fla.Dist.Ct.App.— 3rd Dist.1960); Perata v. Oakland Scavenger Co., 111 Cal.App.2d 378, 244 P.2d 940 (1st Dist.1952); Arizona Rangers, Inc. v. Bisbee Company, 11 Ariz.App. 252, 463 P.2d 836 (1970). A member of such an organization acquires not a severable right to any of its property or funds, but merely a right to the joint use and enjoyment thereof so long as he continues to be a member. 7 C.J.S. Associations § 27b, p. 70; Liggett v. Koivunen, supra. Usually, if a member withdraws from or abandons the organization, his membership is terminated, his right to share in the association’s property upon dissolution is lost, and those who remain and succeed him are entitled to his interest. Flanagan v. Benvie, supra; Liggett v. Koivunen, supra; 7 C.J.S. Associations § 27b, p. 70; 6 Am.Jur.2d, Associations and Clubs, Sec. 24, p. 450. The rule has likewise been applied to incorporated non-profit membership organizations. See Clearwater Citrus Growers’ Ass’n. v. Andrews, supra; Schroeder v. Meridian Improvement Club, supra; Arizona Rangers, Inc. v. Bisbee Company, supra. Generally speaking, the termination of one’s membership must be by voluntary act of the member or by act of the organization pursuant to authority granted by the charter or the by-laws. 6 Am.Jur.2d, Associations and Clubs, Sec. 26, p. 453. But it may also be terminated by waiver or abandonment, provided there is sufficient proof thereof. Schroeder v. Meridian Improvement Club, supra; Clearwater Citrus Growers’ Ass’n. v. Andrews, supra. In general, every right may be lost by waiver or abandonment, whether such right is secured by contract, conferred by statute or guaranteed by the Constitution. 1 C.J.S. Abandonment § 5, p. 13; 60 Tex.Jur.2d, Waiver, Sec. 2, p. 183. An abandonment or waiver must be voluntary and intentional, but it need not be proved by express declaration, but may be inferred from the surrounding circumstances. 1 C.J.S. Abandonment § 4, p. 12.

With the foregoing principles in mind, we note the following evidence presented by the defendants: O. L. Ford ceased to participate in the corporation’s affairs after 1969. He grazed no cattle after 1969, neither paid nor offered to pay any grazing fees since 1969, attended no meetings since 1969, and “just left it up to the fellows that were left there to run it . . .”. Thomas Welch grazed no cattle after 1968, neither paid nor offered to pay any grazing fees after 1968 and attended only one meeting after 1968, which was in the spring of 1969. Tinnie Garrison removed his cattle from the corporation’s lands in 1970, never thereafter grazed any cattle or paid or offered to pay any grazing fees, and never attended any meeting after 1970. Conde Rodriques grazed no cattle after 1970, never attended any meeting after 1970, neither paid nor offered to pay any grazing or other fees after 1970, told Jack Pollock that he was quitting the organization, and “just left it up to someone else” to take care of the corporation and its obligations. All of the plaintiffs acknowledged that they knew the corporation was required to make the payments on the FHA mortgage or lose the land, and that the grazing fees which each member was obligated to pay were depended upon for that purpose. On the other hand, the evidence showed that each of the defendants remained active in the organization from the time he became a member, participated in the meetings, served as a director and/or officer, was active in managing the corporation and maintaining its property, and faithfully grazed his cattle on the corporation’s lands each year and paid the applicable grazing fees. The jury, upon such evidence, found that each of the plaintiffs had waived his membership rights in the association.

The authorities speak of losing one’s membership rights by abandoning the organization and its purposes, whereas the jury issues here inquired if plaintiffs “waived” their membership rights, but in a case of this type, waiver and abandonment are almost identical. See 60 Tex.Jur.2d, Waiver, Sec. 2, p. 183. In fact, waiver is a species of abandonment. Jordan Drilling Co. v. Starr, 232 S.W.2d 149 (Tex.Civ.App.El Paso 1950, writ ref’d n.r.e.). Indeed, the definition of waiver which the trial court gave to the jury was the same as that for abandonment, i. e., “. . . the intentional relinquishment of a known right.” That definition has been approved in Texas for both waiver and abandonment. See The Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Com.App.1933, judgmt. adopted); Lashbrook v. Altum, 391 S.W.2d 549 (Tex.Civ.App.Austin 1965, no writ); 60 Tex.Jur.2d, Waiver, Sec. 1, p. 181; 1 Tex. Jur.2d, Abandonment, Sec. 1, p. 2. Thus, the jury’s findings of waiver can be deemed the equivalent of findings that the plaintiffs abandoned the organization and their membership rights therein.

We recognize that the by-laws of the corporation provided for the termination of a member’s status by voluntary surrender of his certificate of membership or by the forfeiture of that certificate by act of the directors for failure to pay lawful assessments, and that neither was literally done in this case, unless it can be said that by abandoning the organization and its purposes, a member has, in effect, voluntarily surrendered his certificate. But the physical surrender of the certificate itself is not absolutely necessary for a termination of one’s membership. The certificate does not constitute the membership relation; it is but the evidence of that relation. See 18 C.J.S. Corporations § 258, pp. 721, 722. Obviously, in a proper case, that relation may be terminated without a physical surrender of the certificate. For example, can it be doubted that a letter of resignation delivered by a member to the corporation, although unaccompanied by a physical delivery of the certificate, would be an effective termination of a member’s status? We think not. Compare Wall v. Bureau of Lathing & Plaster. of Dade County, supra.

Plaintiffs’ membership rights being subject to loss by waiver or abandonment, and the jury having found such waiver upon sufficient evidence, the trial court should have rendered a judgment that the plaintiffs take nothing. For the reasons stated, the judgment of the trial court is reversed and judgment is here rendered that the plaintiffs take nothing.

Reversed and rendered.

      . Originally included as plaintiffs were Charles Martin and James Everett, both of whom thereafter filed disclaimers.

      . The resolution of March 16, 1973, recited that a net profit of $130,408.20 was realized, with $32,602.05 being distributed to each defendant. In response to interrogatories, however, each defendant answered that he received $39,-122.46 from the land sale.

      . There were also several other persons who, although not active in the organization, still held uncancelled and unsurrendered membership certificates. They were not joined in the suit either as plaintiffs or defendants.

      . In Texas title to real property may not be lost by abandonment. City of Corpus Christi v. McCarver, 275 S.W.2d 194 (Tex.Civ.App.San Antonio 1955), rev’d on other grounds, 155 Tex. 153, 284 S.W.2d 142 (1955); 1 Tex.Jur.2d, Abandonment, Sec. 5, p. 5.


text:
    B & R DEVELOPMENT, INC., Appellant, v. Yandell ROGERS, Jr., Appellee.
    No. 8487.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 6, 1978.
    Rehearing Denied Jan. 31, 1978.

      Marion L. Massey, King & Massey, Inc., Fort Worth, for appellant.
    Franklin H. Perry, Thompson, Coe, Cousins & Irons, Dallas, for appellee.
   CORNELIUS, Chief Justice.

B & R Development, Inc., brought suit against Yandell Rogers, Jr., to recover $20,-070.00 which allegedly represented an overpayment for land which B & R and its associate Whitmire had purchased from Rogers. The petition alleged that B & R and Whitmire agreed to purchase the land, by the acre, for a consideration of $3,000.00 per acre, and that upon Rogers’ fraudulent and false representations that the land contained 90 acres, they paid $270,000.00 therefor, whereas in fact the land contained only 83.31 acres. The prayer sought actual damages of $20,070.00 representing the acreage deficiency at $3,000.00 per acre, plus exemplary damages of $20,000.00. Trial was to a jury which found, inter alia, that Rogers’ agent represented to B & R that the tract contained 90 acres and that it fronted 3628.8 feet on Union Church Road; both representations were false; B & R did not know the representations were false but relied upon them in agreeing to purchase and pay for the land; the sale was a sale by the acre rather than a sale in gross; and by reason of the misrepresentations, B & R was damaged in the sum of $20,070.00. Nevertheless, the district court allowed a recovery of only $8,685.00 because, based on the documentary evidence produced at the trial, B & R owned only a fractional interest in the land, the remaining interest still being owned by B & R’s associate Whit-mire. B & R moved to reopen the trial for the purpose of proving that it had purchased Whitmire’s interest, but the district court denied the motion.

On appeal B & R complains of the trial court’s action in awarding it a judgment for only $8,685.00 rather than for the full $20,-070.00; in refusing to allow a reopening of the trial to permit proof of the assignment from Whitmire to B & R; in allowing Rogers an offset for some 9/ioths of an acre which was encumbered by a road easement; and in refusing to award interest on the recovery. We find it unnecessary to pass upon these contentions, however, as we have concluded that we must sustain Rogers’ cross-point which urges that B & R’s cause of action was barred or waived as a matter of law because after B & R discovered the acreage deficiency and had full knowledge thereof, it renegotiated the transaction and executed renewal notes for the balance of the full amount of the purchase price.

The original purchase was consummated for an agreed price of $270,000.00 with $40,-000.00 being paid down and the balance of $230,000.00 being financed by the execution of a promissory note payable to Rogers in three annual installments and secured by a deed of trust on the property. In May of 1973, several months after the original sale, B & R purchased Whitmire’s undivided interest in the land. James Rust, the President of B & R and its agent in all of the transactions in question, testified that at the time of the purchase of Whitmire’s interest he was aware that the land contained less than the 90 acres it was represented to contain. His knowledge was based primarily upon a surveyor’s report which revealed that the frontage on Union Church Road was only 2640.32 feet rather than 3628.8 feet as Rust testified had been represented by Rogers. Thereafter, in June of 1973, at the request of B & R, the financing was renegotiated with Rogers. As a result, Whitmire was omitted as an obligor, an additional $30,000.00 was paid toward the $270,000.00 purchase price, and the balance of $200,000.00 was financed by a note payable to Rogers in two annual installments and secured by the pledge of certain certificates of deposit. Rogers’ deed of trust lien was released. At about the same time, B & R executed a deed of trust to the Fort Worth National Bank covering the 90 acres, to secure a new loan it had obtained for $383,000.00. The same land description and acreage figures were used in that deed of trust as were used in the original papers. Concerning his knowledge of the acreage deficiency at the time the new financing papers were executed, Mr. Rust testified as follows:

“Q Just a minute, Mr. Rust. If my memory serves me, Mr. Thompson said that he completed this survey in June of 1973.
A Yes.
Q Would that have been the time that you knew that you had less than 90 acres?
A I believe we knew we had less than 90 acres prior to that when his men were working on the topo.
Q But at any rate the day that the survey was completed you would have known?
A Well, the day the survey was completed I knew exactly how much land there was.
Q All right, sir. I guess the next thing* that happened in this matter was that Mr. Thompson got out, or his people went out there, and didn’t they tell you that, sometime shortly before you bought Mr. Whitmire’s interest in the land, they told you all the acreage wasn’t there and all of the frontage wasn’t there?
A They didn’t say all the acreage is not there. They just said the frontage is short. That’s as far as they had gotten with their survey.
But you did say at that time, did you not, ‘Well, we had bought this property and after we found out that the acreage was short, why, he — ’ And so forth and so on?
A Yes, if you want to put it that way, that the acreage was short. We knew that it was short, the frontage. I didn’t have the exact acreage at that time, but I had, I had anticipated it being short, the footage not being there. Yes, I will go ahead and say yes to that question, we knew that — or I knew — I’ll put it I knew that it was short at that time.
Q Well, you discussed it with Mr. Whitmire, too, didn’t you?
A I told Mr. Whitmire that the footage that Mr. Williams had told us was on Union Church Road was short.
Q All right. And on Page 71, Line 22, you said:
‘Question: Did you and Mr. Brinkley have some discussions about the shortage, about how that would affect your ability to buy him out and still come out on the development?
Answer: Well, yeah, we discussed it. We discussed it.
Question: Did you feel like you could still develop it and still make enough money to justify buying out Mr. Whitmire?
Answer: Well, I’m sure we did or we wouldn’t have bought him out.’
A I didn’t have a complete survey at that time, as Tommy testified earlier, but that frontage was short and I will concede that I assumed and called it acreage short from the frontage being short. Yes, we will call it acreage short.
Q Well, it’s not a question of what we are calling it now, Mr. Rust. It’s a question of what you said under oath at the time. Now, you did say—
A Well, I am saying that the acreage was short, yes, and that I said under oath that it was short, yes.”

Where one with knowledge of a fraud perpetrated on him in a prior transaction executes a renewal of his obligation, he thereby ratifies the original transaction and will not be permitted to plead the fraud. Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201 (1892); Gaylord Container Division v. H. Rouw Company, 392 S.W.2d 118 (Tex.1965); Anderson v. Pioneer Bldg. & Loan Ass’n., 163 S.W.2d 421 (Tex.Civ.App. Waco 1942, writ ref’d w.o.m.); Vick v. Downing, 120 S.W.2d 279 (Tex.Civ.App. Eastland 1938, no writ); Braxton v. Haney, 82 S.W.2d 984 (Tex.Civ.App. Waco 1935, writ ref’d). The rule is usually applied in actions to enforce or to rescind the transaction, but it applies as well to actions for damages or to recover the consideration paid for property purchased as a result of fraudulent misrepresentations. See Shaw Equipment Co. v. Hoople Jordan Const. Co., 428 S.W.2d 835 (Tex.Civ.App. Dallas 1968, no writ); Rawdon v. Garvie, 227 S.W.2d 261 (Tex.Civ.App. Dallas 1950, no writ); Fryar v. Forrest, 155 S.W.2d 679 (Tex.Civ.App. San Antonio (1941), no writ); Santa Ana Citrus Groves v. First Nat. Bank, 149 S.W.2d 310 (Tex.Civ.App. San Antonio 1941, writ ref’d). See also Dallas Farm Machinery Co. v. Minneapolis-Moline, 324 S.W.2d 578 (Tex.Civ.App. Dallas 1959, no writ).

The undisputed evidence in this ease shows that after discovery of the falsity of Rogers’ representations as to the amount of acreage, B & R paid an additional $30,-000.00 of the original purchase price and executed renewals and extensions of the notes for the remaining balance thereof, in effect again agreeing to pay $270,000.00 for the tract, though it contained less than the 90 acres represented. The legal effect of such renewal was to free the transaction from the fraud and to affirm and acknowledge the legality and enforceability of the obligation to pay the consideration agreed upon. Anderson v. Pioneer Bldg. & Loan Ass’n., supra; Santa Ana Citrus Groves v. First Nat. Bank, supra.

B & R attempts to escape the rule announced by the authorities cited, contending that because its action was simply one for money had and received, rather than an action for recision or as a defense to an action on the obligation, those authorities do not apply.

When a deficiency in a sale by the acre is discovered, an abatement may be allowed as a defense pro tanto to an action by the vendor for the purchase price; or, if the price has been paid, the vendee can recover damages. See Comment, Excesses And Deficiencies In Texas Land Sales, 20 Texas L.Rev. 446 (1942), and cases there cited. Some cases have recognized that the vendee’s action to recover a portion of the purchase price may be in the form of one for money had and received, but the remedy, whatever the form of the action, is governed by equitable principles of fraud or mutual mistake. 20 Texas L.Rev. 446 (1942). In this case, B & R made no allegation of mutual mistake, nor was there evidence of such. B & R’s case was grounded upon fraud. The basis of its claim was misrepresentation. To have shown that Rogers had money which in equity and good conscience he should not retain, as is required in an action for money had and received, B & R must have established that Rogers misrepresented that the tract contained 90 acres, and that it paid $270,000.00 for the land upon that understanding. If B & R paid $270,000.00 for the land knowing that it contained less than 90 acres, it has not been misled and its cause of action, as pleaded, for money had and received necessarily fails. Although the jury found that the sale was by the acre, the confirmation of the bargain after discovery of the acreage shortage removed the elements of mistake or deception from the transaction, and effectively transformed it into a sale of the tract in gross.

As a defense to an action for money had and received, the defendant may show any facts which will entitle him to retain the money on either legal or equitable grounds. Thus, he may interpose any defense which shows that in equity and good conscience the plaintiff is not entitled to recover. Red Ball Motor Freight, Inc. v. Bailey, 332 S.W.2d 411 (Tex.Civ.App. Amarillo 1960, writ ref’d n.r.e.). As Rogers established that B & R executed new notes for the remaining balance of the full purchase price at a time when it knew it was getting less than 90 acres, there was no misrepresentation or deception and B & R had no right, in equity and good conscience, to recover money which it knowingly and voluntarily paid to Rogers.

B & R sought to avoid this result by obtaining a jury finding that, by renegotiating the terms of payment of its debt it did not waive its claim for damages for the deficiency, but such finding cannot be deemed decisive. The jury issue was based upon the traditional concept of waiver, defined as “the intentional relinquishment of a known right.” But the issue of intent to waive is not material. Vick v. Downing, supra. Strictly and accurately speaking, it is not waiver which has barred B & R’s cause of action. It is simply that fraud has been eliminated from the transaction. See Vick v. Downing, supra; see also Dibrell v. Central Nat. Bank, 293 S.W. 874 (Tex.Civ.App. Austin 1927, writ dism’d). B & R received the bargain for which it contracted. There was no deception. If there was no deception, the basis of B & R’s claim disappears.

For the reason stated, appellee’s cross-point is sustained. The judgment of the district court is reversed and judgment is here rendered that appellant take nothing.

Reversed and rendered.

ON MOTION FOR REHEARING

In its motion for rehearing, B & R insists that a recovery in its behalf could be sustained upon the theory of mutual mistake if not upon the theory of fraud. Assuming for the purposes of argument that B & R’s pleadings could be construed as alleging mutual mistake, the case was submitted to the jury and determined by it on the basis of intentional fraud. In any event, we remain convinced of the soundness of our ruling. As stated in our original opinion,

“If B & R paid $270,000.00 for the land knowing that it contained less than 90 acres, it has not been misled and its cause of action, as pleaded, for money had and received necessarily fails. . . . the confirmation of the bargain after discovery of the acreage shortage removed the elements of mistake or deception from the transaction, . . (Emphasis added.)

Whether based on fraud or mutual mistake, the basis of a cause of action in B & R’s behalf must have been that it was misled— that it paid the agreed price for the land believing it was getting more than it received. The confirmation of the bargain with full knowledge of the facts removed any such basis.

The motion for rehearing is respectfully overruled.

      . B & R had paid the entire $270,000.00 purchase price before trial.


author: CLAYTON, Justice.

text:
    Robin W. WALKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    As Modified On Denial of Rehearing Jan. 31, 1978.

      Jack Emory Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Appellant was convicted of murder, first-degree burglary and taking by theft. (KRS 507.020, KRS 511.020 and KRS 514.030, respectively.) His punishment was fixed at life imprisonment on the murder charge, 20 years’ imprisonment for first-degree burglary, and 5 years’ imprisonment for theft by taking. The first count of the indictment charged the appellant with having murdered Clarence Perciful by shooting him with a gun or by participating in a conspiracy pursuant to which he was shot and killed by John L. Arnold or Peter L. Tribbett, or both. The foregoing sentences were to be served concurrently. The appellant now brings this appeal, alleging six separate grounds for the reversal of his conviction.

John Arnold was living in Indianapolis, Indiana. At one time he lived with the deceased, Clarence Perciful, in Mount Vernon, Kentucky. Arnold told his friend, the appellant, that he knew of a place to rob in Mount Vernon. Arnold and the appellant, joined by Pete Tribbett, left Indianapolis and drove to Mount Vernon, Kentucky, in Tribbett’s truck. The three had discussed robbing the deceased after Arnold had told the appellant and Tribbett that the deceased had money and guns in his home. The appellant and the other two men made the trip from Indianapolis to Mount Vernon with the appellant driving the pickup truck and supplying the money for gasoline since the other two had no funds.

When the three men arrived in Mount Vernon, they went to the home of Perciful. Arnold got out of the car and went to the door. Perciful, apparently recognizing Arnold, let the three men into his home.

The four men talked for a period of time and Arnold, Tribbett and the appellant left temporarily for the purpose of getting something to eat. Thereafter, the three men discussed the possibility of robbing Perciful. Arnold pointed out that they could not rob him and leave him alive to tell the authorities. They discussed briefly the possibility of forgetting about the whole thing, but it occurred to them that they didn’t have any money. In fact, the appellant told Arnold and Tribbett that he didn’t want to go back to Indianapolis empty-handed. Thus, the three men returned to the home of the deceased with the understanding that Pete Tribbett would do the killing. Tribbett was armed with a .32-eali-ber pistol. The three men again entered Perciful’s home and talked with him for a short while. They then went downstairs into the basement, where the deceased, a gun collector, had a shooting range, apparently to fire the .32-caliber pistol which Tribbett had. When they reached the basement, Arnold indicated to Tribbett to shoot the deceased. When he did not, Arnold took the pistol and shot the deceased in the chest twice, killing him. The three men returned to the first floor of the house, stealing a .45-caliber Satin Commander Colt pistol, several other firearms, $450 cash, an electric guitar and amplifier, an automobile radio, 24 eight-track tapes, two auto tape players, and a CB radio. The men placed the stolen merchandise in the pickup truck and returned to Indianapolis.

Several months later a police investigation traced the .45-caliber Satin Commander Colt pistol to the appellant in Indianapolis where he was under arrest for unrelated charges. Kentucky State Police officials went to Indianapolis and while there obtained a statement given by the appellant whereby he admitted his complicity in the murder and robbery of the deceased. It might be noted here that John Arnold testified for the prosecution and that no testimony was offered on behalf of the defense.

The first assignment of error is that the court erred to appellant’s substantial prejudice and deprived appellant of due process of law by overruling appellant’s motion for a directed verdict of acquittal as to Count 1 of the indictment. The evidence for the prosecution established that the appellant not only drove appellant and Trib-bett to Mount Vernon, Kentucky, but he also supplied the funding for the trip as the other two men did not have any money. Also, after having visited with the deceased for a short while, the three men left to get something to eat at a nearby restaurant and to discuss the possibility of going through with the robbery. It was at this time that Arnold pointed out to the appellant and Tribbett that they could not rob Perciful and let him live to tell the authorities. It was at this point that the appellant stated in the discussion that ensued that he didn’t want to return to Indianapolis empty-handed. This court concludes that the trial court did not abuse its discretion in overruling the appellant’s motion for a directed verdict on Count 1 of the indictment.

The appellant also urges in the alternative that even if the evidence is sufficient to overcome a motion for directed verdict of acquittal, he was still entitled to a directed verdict upon the ground that he voluntarily and completely renounced his criminal purpose in the alleged conspiracy.

KRS 502.040(2) provides an exemption from criminal liability for the conduct of another only when the renunciation is “voluntary and complete” as defined in KRS 506.060(2), and then only if (a) it deprives the defendant’s prior participation of its effectiveness in the commission of the crime, or (b) the defendant gives timely warning to the proper law enforcement authorities or otherwise “makes proper effort to prevent commission of the offense.” Quite aside from the question of whether Walker’s so-called “renunciation” could reasonably be found to have been “voluntary and complete,” we see no possible way in which it could be said to have eradicated the effect of his previous contribution to the commission of the crime. According to the only evidence bearing on the point, it was he who drove the truck from Indianapolis to Mount Vernon and provided the gasoline to make the trip possible, and later on he resisted a suggestion that the conspirators abandon their criminal purpose and return to Indianapolis. Had he not done these things Arnold would not have been present with a gun in his hand at the time and place of the murder. By no gymnastics of the imagination could it be maintained that his sudden loss of fortitude at the final moment of truth somehow resurrected conditions as they would have been had he never participated in the undertaking. Regrettable as it may be, it was simply too late for him to undo the effect of what had been done. With respect to the other possible method of meeting the alternative requirements of KRS 502.040(2) there was, of course, no evidence that Walker gave any warning to the authorities or made any effort whatever to prevent the commission of the offense.

The appellant next contends that the trial court erred to his substantial prejudice and deprived him of due process of law by ruling that his uncounseled confession was admissible since the confession was improperly obtained by promises of a more lenient sentence coupled with a fear of the death penalty. During the course of the trial an in-chambers hearing was held by the trial court upon the voluntariness of the confession that the appellant gave in Indianapolis to Detective Sam King of the Kentucky State Police. Detective King advised the appellant of his rights and further testified that the appellant said he understood his rights but agreed to waive them and talk to Detective King. Thereafter, the appellant voluntarily gave Detective King a statement, which was signed by the appellant. He further maintains that his confession was improperly induced by this promise of a more lenient sentence which was coupled with a fear of the death penalty. Detective King, however, testified at trial that he made no threats or promises of any kind whatsoever to the appellant to induce the confession. Under these circumstances the issue here is one of credibility, and absent any extenuating circumstances the decision of the trial court should not be disturbed. Edwards v. Commonwealth, Ky., 500 S.W.2d 783 (1973). Since there was no evidence offered on behalf of the defense, we do not have the benefit of appellant’s testimony.

The appellant next contends that the trial court erred to his substantial prejudice by admitting into evidence his confession which was obtained in violation of Miranda v. Arizona. The testimony taken at the evidentiary hearing establishes that Detective King advised the appellant of his rights and the appellant told Detective King that he understood his rights. Here the trial court’s ruling that the confession was voluntary was not clearly erroneous and should not be disturbed on appeal. Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970). When examining the issue of volun-tariness the “totality of the circumstances” surrounding the taking of the confession must be considered. These factors are age, education, intelligence, linguistic ability, sanity, etc.

The appellant’s next contention is that he was denied his constitutional right to a speedy trial by the 15-month delay between the indictment and trial. There was no attempt, however, by the appellant to secure a speedy trial. In Byrd v. Commonwealth, Ky., 509 S.W.2d 261 (1974), there was a 21-month interval between the reversal of the defendant’s conviction and his retrial. But this court affirmed the conviction in spite of the fact that the defendant claimed prejudice. A 10-month delay was held not to have denied the defendant his right to a speedy trial in Johnson v. Commonwealth, Ky., 514 S.W.2d 115 (1974). Thus, we cannot say that the appellant here was denied his constitutional right to a speedy trial.

The appellant next contends that he was substantially prejudiced and denied his constitutional right to a fair trial by the prosecution in introducing evidence that an alleged coconspirator had pleaded guilty to the charged offense and accepted the maximum penalty of life imprisonment. Evidence was introduced that the appellant’s coconspirator, John Arnold, had pleaded guilty to the murder of the deceased and had been sentenced to life imprisonment. The prosecutor commented on this fact during his closing argument. At no time did appellant’s trial counsel make any objection to this evidence. It is well settled in this Commonwealth that without a timely and proper objection at trial alleged errors are not properly preserved for appellate review. Newell v. Commonwealth, Ky., 549 S.W.2d 89 (1977).

Finally, the appellant alleges that the court below erred to his substantial prejudice by admitting into evidence, over defense objection, photographs of the deceased which were inflammatory and without significant probative value. The prosecution introduced seven photographs of the deceased. These photographs showed the deceased in the condition in which he was found by his friends. The photographs that were introduced were neither inflammatory nor gory in detail, but simply depicted the scene of the crime and the condition in which the body was found. Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976); Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968).

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    Cleveland STEWART, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Rehearing Denied March 14, 1978.
    Jack E. Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

Appellant Cleveland Stewart was indicted by the Hopkins County Grand Jury on September 10,1976, for the shotgun murder of Raymond Stone (KRS 507.020). The killing occurred late in the night of June 6 or early in the morning of June 7, 1976, in Nortonville, Kentucky. On November 19, 1976, following a two-day trial, the jury returned a verdict of guilty and fixed appellant’s punishment at life imprisonment.

On this appeal appellant attempts to present eight issues, only one of which merits our consideration. The other seven issues are presented for the first time on this appeal. We have uniformly held, and we reiterate, that the question has not been properly preserved for appellate review when it is presented for the first time on appeal. Lee v. Commonwealth, Ky., 547 S.W.2d 792 (1977).

In Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), we said, “If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.” The trial judge, in measuring the evidence by this yardstick in order to determine whether a directed verdict of acquittal should be given, heard conflicting testimony. The evidence discloses, and the jury was entitled to believe, that appellant and his 17-year-old friend, Mike Lewis, on Friday evening, June 4, 1976, went to the home of Raymond Stone to buy some beer. Mr. Stone lived in a remote section of South Hopkins County, Kentucky. He had only two neighbors; one lived about 100 yards from him and the other about 250 yards from him. “Stoney” refused to sell any beer to appellant and Lewis, but he did give them several cans to drink while they were visiting with him. Neither of the men had any money, except for a small amount of change. After their visit appellant and Lewis returned to the car and, with appellant driving, killed the evening just riding around. While doing so, Lewis noticed a single-barrel, 12-gauge shotgun in the car, and he asked appellant to stop the car and let him shoot the gun a couple of times, which appellant did. The shells are a Smith and Wesson brand, with a silver-colored metallic butt end, a type not generally used or found in the vicinity. Appellant started talking about how Stoney had a lot of money and that he thought he would rob him. Appellant stopped the car about 100 yards from Stoney’s, got out of the car and loaded the shotgun. Taking a few extra shells with him, he started walking toward Stoney’s. Lewis remained in the car. After a short while Lewis, having reconsidered their plight, moved into the driver’s seat, turned the car around, and went after the appellant. After driving only a short distance, he overtook appellant, who got back into the car. They continued their carousing. Later in the evening appellant took Lewis home.

On the following day, Saturday, at about 5:00 or 6:00 p. m., the appellant, Lewis and Lewis’ girlfriend drove back over to Stoney’s for the ostensible purpose of getting some more beer, where appellant could buy it on credit, and in an effort to sell Lewis’ 22-caliber rifle and appellant’s 12-guage shotgun. The sales were not made, but again appellant started talking about how easy it would be to rob Stoney. The trio drove to Mushy’s Tavern, in Mannington, Kentucky, where Lewis sold his rifle, but appellant was unable to sell his shotgun. Upon leaving Mannington, they all rode around together trying to find someone to buy appellant’s shotgun until about midnight, when the parties disbanded.

An hour or two later appellant drove by Andy Vandiver’s home and persuaded Andy to go with him to Evansville, Indiana, in another effort to sell his shotgun. While enroute to Evansville, appellant remarked that he had just shot a man, but he did not say who it was. It is well to mention at this point that three or four days later the appellant, Vandiver and Chuck McGregor were drinking together and in the course of their conversation appellant again said that he had shot a man. The appellant and Vandiver were arrested. While being held in jail, in August, 1976, the appellant told Vandiver that Raymond Stone was always talking about his mother and that he had shot Stoney and he wasn’t sorry for it. Also, a week or so after the killing the appellant told his sister-in-law, Kathy Robertson, that he had shot a man but that the authorities thought someone else, Andy Vandiver, had done it.

The killing was investigated by several members of the Kentucky State Police and the sheriff of Hopkins County. They were unable to locate the shotgun, although, according to appellant, it had been sold while he was in Evansville. They were able, however, to locate four 12-gauge shotgun shells of the same make and description as the ones which Lewis fired from appellant’s shotgun in his target practice. Two of the shells were recovered from the spot where Lewis had taken his target practice; one had been fired and the other had not. One shell was found about five miles from Stoney’s residence and another, unfired, was found about thirty feet from his house at the edge of the driveway.

The victim, Raymond Stone, was shot from outside his home, at a distance of about twenty-five feet. The shot went through the front screen door and into Stoney’s chest, heart and head. He was found lying in the front of the house between the bedroom and the living room. His wallet was empty and protruding from his hip pocket. No money was found in the house, and no beer or other intoxicants were found in the house. There were 208 cans of beer found outside the house, but close to it.

The measure of the adequacy of the evidence to overcome a motion for a directed verdict of acquittal is predicated on its quality. Appellant attacks his statements as if they were confessions, thereby requiring proof other than that the murder was committed. RCr 9.60. The Attorney General argues the statements are not confessions but merely admissions. A distinction between the two is set out in Hawk v. Commonwealth, 284 Ky. 217, 144 S.W.2d 496 (1940). We said:

“A confession is a voluntary statement made by a person in which he acknowledges himself to be guilty of an offense or discloses the existence of the act and the share or participation which he had in it. The distinction between a confession and an admission is that the latter is only a self-incriminating statement short of an acknowledgment of guilt, or a statement of an isolated or independent act tending only to show guilt or criminal intent.”

In the instant case, the trial judge treated the statements as confessions. We concur. Even though we consider the statements to be confessions, it does not follow that they cannot suffice to establish appellant’s guilt. The confessions may be sufficient where there is separate and corroborative evidence which will establish the corpus delicti. In Wilson v. Commonwealth, Ky., 476 S.W.2d 622 (1971), we said:

“The appellant contends that his confession was not sufficiently corroborated to sustain the conviction. RCr 9.60 provides:
‘Corroboration of Confession. A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.’
The only corroboration required for a confession not made in open court is proof, independent of the confession, that the offense was actually committed. Once the commission of the offense is established, the confession alone is sufficient proof that the confessor committed the crime.”

Although there is testimony that appellant confessed to the killing of Raymond Stone, the prosecution was required to show (1) a death and (2) that the death resulted from the criminal agency of another.” In addition to the confession, the evidence, which clearly establishes the corpus delicti, demonstrates that, (1) Raymond Stone is dead as a result of a shotgun wound which caused massive hemorrhage of the muscle walls around the heart, chest and head; (2) the weapon which caused his death was fired from outside his residence from a distance of about twenty-five feet; (3) the pellets from the shotgun shell not only went through the closed screen door but through a partially opened main door and a glass window; (4) one unexpended shell was found on the edge of the driveway of the victim’s home; (5) two shells, one of which had been fired by Mike Lewis, were found about two-thirds mile away; (6) one unex-pended shell was found about five miles from the Stone residence; (7) all of these shells are of the same make (Smith and Wesson) and gauge (12); (8) all of these shells are of the same type and gauge as those fired from appellant’s shotgun while he and Lewis were target practicing; (9) all of these shells are of a type of construction not usually found in that vicinity; and (10) death was caused by a person other than the victim. It can hardly be argued that the victim took his own life.

We are of the opinion that there is adequate evidence corroborating appellant’s confessions to justify the submission to the jury.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Peter L. TRIBBETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1978.
    Rehearing Denied March 14, 1978.

      Henry E. Hughes, Lexington, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Tribbett was convicted of the murder of Clarence Perciful, KRS 507.020, burglary in the first degree, KRS 511.020, and theft by unlawful taking, KRS 514.030, and sentenced by the Rockcastle Circuit Court to consecutive terms of imprisonment for life, ten and five years. He appeals.

The convictions are based on a completed conspiracy to murder Perciful and make off with his property. Although Tribbett did not fire the weapon, he was an active participant in the entire episode which resulted in Perciful’s death.

Tribbett assigns four points of error. Two of these contentions reflect a misunderstanding of the nature of the charges. He relies on the defense of renunciation of a criminal attempt set forth in KRS 506.020. Such reliance is totally misplaced. Tribbett was charged with and convicted of murder, not attempt to murder. Tribbett also claims that his convictions run afoul of the restrictions of KRS 506.050(2). Because he was neither charged with nor convicted of the substantive offense of conspiracy, this statute is irrelevant. The conspiracy merely constitutes the factual basis supporting the agency relationship which imposes criminal liability upon Tribbett for the conduct of his partners in crime. KRS 502.020(l)(a).

Tribbett further contends that he could not be convicted of burglary as a matter of law because his entrance was not unlawful. Again his aim is faulty. The jury was not instructed on the “unlawful entry” aspect of burglary. It was instructed to find him guilty only if he remained in Perciful’s dwelling without permission. Tribbett and his two companions were invited by Perciful into his home. As such they were mere licensees. Upon the death of the licensor, the license ceased and the privilege to be upon the premises lapsed. 3, Tiffany, Real Property, Sec. 836 (3rd ed. 1939); 53 C.J.S. Licenses § 87 (1948); 25 Am.Jur. 2d, Easements and Licenses, Sec. 131 (1966). Therefore, when they failed to leave, they remained unlawfully upon the premises within the meaning of the burglary statute. KRS 511.020, Commentary (iii) (1974).

Tribbett finally contends that convicting and sentencing him on the two offenses of burglary and theft which arose from the same transaction put him in double jeopardy. No such problem exists. The elements of these two crimes are different. Each of these crimes requires proof of facts that the other does not. See, e. g., Easley v. Commonwealth, Ky., 320 S.W.2d 778 (1958). Therefore the state and federal constitutional bars against double jeopardy are not violated. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); e. g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed. 187 (1977); Brock v. Commonwealth, Ky., 479 S.W.2d 644 (1972).

The judgment is affirmed.

All concur.

      . For a more complete recitation of the facts surrounding the episode see Walker v. Commonwealth, Ky., 561 S.W.2d 656 (1977).