author: JAMES, Justice.

text:
    L. D. MOORE, Appellant, v. Walter H. ALLEN et al., Executors and the First United Methodist Church of Marlin, Texas, Appellees.
    No. 5614.
    Court of Civil Appeals of Texas, Waco.
    Oct. 21, 1976.
    Rehearing Granted Nov. 18, 1976.

      Robert G. Carter, Marlin, for appellant.
    John B. Henderson, Jr., Cameron, Jack Welch, Marlin, Wiley Stem, Danny C. Wash, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a suit for declaratory judgment to construe three holographic codicils. The primary question before us is whether the latest codicil, that dated October 19,1974, is mandatory or precatory. The trial court held such codicil to be precatory. We hold the codicil to be mandatory and testamentary in nature, and therefore reverse and render the trial court’s judgment in this regard.

The plaintiffs in this suit were Walter H. Allen and Mary Jane Reagan, Independent Executors of the Estate of Lalla Branson, Deceased. The defendants were L. D. Moore (Appellant herein), Ruby Henson and seven other individuals (who were devisees and legatees in the will and codicils of the testatrix, and whose rights are not in question in this appeal) and The First United Methodist Church of Marlin, Texas (hereinafter referred to as “the Church”). The above-named Executors and the Church are Appellees herein.

Lalla Branson, the deceased testatrix, died on April 5,1975, and thereafter, to wit, on May 6, 1975, her will and three holographic codicils were duly probated in the County Court of Falls County, Texas. The record does not reflect that any appeal was taken from said order of probate.

The testatrix had never married, had lived most if not all of her life in Marlin, Texas, was advanced in years and probably in her eighties at the time of her death, and had no family that was known of. She was a very active member of the First United Methodist Church of Marlin, Texas, and was for a long period of time until her death treasurer and secretary of the Official Board as well as organist at said Church.

Her will was a typewritten instrument dated January 4, 1973, shown to be signed by her and attested by two witnesses. In said instrument after appointing her executor and executrix, in paragraph 2 she used the following language:

“2. To the First United Methodist Church of Marlin, Texas, I give and bequeath my home, located at the comer of Houghton and Carter Streets and being a part of Lot No. 15 of the Curry Addition to the town of Marlin.” Thereafter followed a number of special bequests not necessary to be particularized herein, and a disposition of the rest and residue of her estate.

As stated, after the date of her will here-inabove described, the testatrix made three holographic codicils. The codicil dated “August 1974” began as follows: “What I want done with several things in my home. To Ruby Hynson: Everything in Mabel’s room (n. east bedroom) except the clothes in the closet. Give them to someone who needs them. Also the marble top coffee table in the library downstairs southeast room. Also the Seth Thomas clock in the back room downstairs on mantel.”

Thereafter followed this language: “L. D. Moore wants a chance to buy the home. Give him first chance. I am leaving him the clock at the foot of stairs.” Then follows a number of specific bequests to various individuals of pictures, furniture, silver, china, and other household and personal effects. Near the end of this codicil she named eleven men as “pallbearers”, the second man named being “L. D. Moore.”

Her codicil bearing date of August 28, 1974, makes a number of specific bequests to various individuals of furniture and household items and personal effects which have no bearing upon the controversy at hand.

The third and last codicil bearing date of October 19, 1974, reads as follows:

“I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00. The various things in my house that have not been assigned to a special person will go with the house.

“The house is 62 years old and at the present time needs lots of repairs, so we decided on the $10,000.00 price.

“Lalla Branson — October 19, 1974.”

Trial was to the court without a jury after which the trial court held that the codicils of “August 1974” and of August 28, 1974 were testamentary in nature whereas the codicil of October 19, 1974 was precato-ry only and held to be of no legal effect. The essence of said judgment was to give testamentary effect to the specific bequests set out by the testatrix in the first two codicils and to give no legal effect to the codicil of October 19, 1974, wherein the testatrix said she had willed her home to the Church but “wanted them to let L. D. Moore buy it for $10,000.00.” The trial court’s judgment provided “the only obligation of the defendant church is to give L. D. Moore the first chance to purchase same at a fair value of same as determined by the defendant church, as authorized by the codicil dated August 1974.”

Appellant L. D. Moore appeals from said judgment asserting error of the trial court in holding that the codicil of October 19, 1974 is precatory. Appellant contends that said codicil was mandatory and testamentary in nature and that he is legally entitled to buy the testatrix’s home place from the Church for $10,000.00. We sustain Appellant’s contention and hereby reverse and render the trial court’s judgment so as to provide that Appellant L. D. Moore is entitled to purchase the testatrix’s home place from the Church upon payment to said Church the amount of $10,000.00.

One of the cardinal rules in the construction of a will (or in this case a codicil) is to ascertain and declare the intent of the testator, and, if legal, to enforce that intent. Bergin v. Bergin (1958) 159 Tex. 83, 315 S.W.2d 943. When such intention can legally be ascertained with reasonable certainty it becomes the positive duty of the courts to effectuate and enforce the same, if it is not unlawful to do so. Welch v. Rawls (Waco, Tex.Civ.App., 1945) 186 S.W.2d 103, error refused, want of merit; 61 Tex.Jur.2d “Wills”, par. 146, p. 268.

In the case at bar, the words used by the testatrix that “I Want them (the Church) to let L. D. Moore buy it for $10,000.00” is clear and unambiguous, and requires the application of no rules of construction in order to ascertain the intent of the testatrix. As this court said in Welch v. Rawls, supra: “In arriving at the intention of the testator, it is also the duty of the courts to look alone to the language actually employed in the will if that is legally possible or practicable.” The term' “I want” or “wanted” is often construed as mandatory when used in a will (or codicil) when it appears from the context or from the entire document that they are the expression of the testator’s intention in making disposition of his property. Bergin v. Bergin (1958) 159 Tex. 83, 315 S.W.2d 943; Welch v. Rawls (Waco, Tex.Civ.App., 1945) 186 S.W.2d 103, err. refused want of merit; 61 Tex.Jur.2d “Wills,” pars. 156,157, pp. 282 et seq.

Lalla Branson had no known family or relatives at times material to this controversy. In times past she had a brother and sister who died many years ago. L. D. Moore was a member of Appellee Church, had lived in Marlin, Texas, about forty years and was at the time of trial and had been sales and service manager for a hardware firm in Marlin for thirty years. He and the testatrix were friends, by virtue of being fellow members in the Church and in addition thereto, Moore “kept her appliances going for years.” Moore testified: “And a lot of times she would call me and I would be tied up maybe and I would go by after I got off and make the call and get her appliance going, whatever it might have been.” On several of such occasions the testatrix talked to Moore about the house. Moore testified that she would always refer to it as “your house.” Moore said, “and I would say, ‘well, just what do you mean by my house’? She says, ‘well, I have got it fixed where you have the first chance to buy it.’ I said, ‘well that’s great and I appreciate it but whatever you put down I will have to borrow the money to buy it.’ And that’s about the extent of that.”

After the testatrix had prepared the codicil of October 19, 1974, she put it in an envelope which had her return address in the upper left hand corner thereof, and wrote “L. D. Moore” on the front of the envelope. On a Sunday morning after church services, she walked over to Moore in church and handed to Moore this envelope containing the codicil and said, “Here, L. D. I want you to have this.” After this occasion, the codicil remained in the possession of Moore or his attorney until after the testatrix’s death, when Moore turned it over to the lawyer who probated the will and codicils.

Where, as here, there are three codicils to be taken into consideration in a ease requiring will construction, and the codicil of October 19, 1974, in question is the last one made, it is to be presumed that the testatrix has reexamined the testamentary disposition in the original will and the two previous codicils before executing the last codicil; the will and the codicils are to be regarded as one instrument speaking from the date of the last codicil. And it naturally follows that insofar as the last codicil makes changes deviating from previous testamentary dispositions, the provisions of the last codicil will control. Boyd v. Frost National Bank (1946) 145 Tex. 206, 196 S.W.2d 497, 508; Wattenburger v. Morris (Fort Worth, Tex.Civ.App., 1968) 436 S.W.2d 234, NRE.

Appellee Church takes the position that the codicil of October 19, 1974 is merely expressive of a desire or wish of the testatrix and is therefore merely precatory in nature and should be given no testamentary effect. We do not agree with this contention. From the language used by the testatrix as contained within the four corners of the codicil and as further enlightened and explained by the surrounding circumstances, hereinabove stated, we believe it is beyond question that the testatrix intended the codicil of October 19,1974, to be mandatory and testamentary in nature. We therefore hold that the trial court erred in holding the codicil in question to be precato-ry only, and reverse and render the trial court’s judgment so as to provide that Appellant L. D. Moore is legally entitled to purchase the testatrix’s home place from the Church by his payment to the Church of $10,000.00.

REVERSED AND RENDERED.

ORDER GRANTING MOTION FOR REHEARING

Appellee, the First Methodist Church of Marlin, Texas, bases its motion for rehearing upon the ground of nonjoinder of the Attorney General of Texas, asserting that the Attorney General is a necessary and indispensable party to this cause under the provisions of Article 4412a, Vernon’s Texas Civil Statutes. Appellee contends that since the Attorney General was never served with process as prescribed by Section 3 of Article 4412a, nor in any other manner joined as a party herein, that the judgment of the trial court is void and unenforceable, and should be set aside.

Moreover, the Attorney General has filed a motion in this court reciting that he has not been joined as a party either in the trial court or on appeal, and requests that the judgment of the trial court be vacated and set aside.

We sustain and grant both motions. This was and is a suit for declaratory judgment to construe the provisions of testamentary instruments creating and affecting a “charitable trust”, as that term is defined in Art. 4412a, and as such falls squarely within the provisions of said Article. Section 2 of the Article makes the Attorney General of Texas a necessary party to an action to construe any instrument, testamentary or otherwise, affecting a charitable trust. Section 4 declares that a judgment rendered in a suit of this nature is void and unenforceable “without service or process upon the Attorney General”, and further provides that “any such judgment shall be set aside upon motion of the Attorney General filed at any time thereafter.”

In the case at bar, failure to join the Attorney General is fundamental error and thereby renders void the trial court’s judgment. See Akin Foundation v. Trustees for the Preston Road Church of Christ (Texarkana, Tex.Civ.App., 1963) 367 S.W.2d 351, no writ; In Re Estate of Bourland v. Hanes (Corpus Christi, Tex.Civ.App., 1975) 526 S.W.2d 156, NRE.

Under these circumstances, this court has jurisdiction to declare the invalidity of the trial court’s judgment and to set it aside. Williams v. Steele (1908) 101 Tex. 382, 108 S.W. 155, 157; Henn v. City of Amarillo (1957) 157 Tex. 129, 301 S.W.2d 71, 73.

Moreover, as we understand the pronouncements of our Supreme Court, the proper disposition of this matter in this state of the record is to reverse and remand the cause to the trial court with direction that the original plaintiffs have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. See Adams v. Bankers Life Co. (Comm.App. 1931) 36 S.W.2d 182, opinion approved; Sharpe v. Landowners Oil Assn. (1936) 127 Tex. 147, 92 S.W.2d 435, opinion adopted; Mason v. Mason (Tex.1963) 366 S.W.2d 552. In this connection also see Akin Foundation v. Trustees for Preston Road Church of Christ (Texarkana, Tex.Civ.App., 1963) 367 S.W.2d 351, no writ. It is so ordered.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    Mason Don PAGE, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 19015.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 21, 1976.
    Rehearing Denied Nov. 18, 1976.
    Albert E. Andres, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Mason Don Page brought this action in the district court seeking to recover workmen’s compensation benefits from Texas Employers Insurance Association, the insurance carrier for his employer, Preston State Bank. At the conclusion of plaintiff’s evidence in the case tried before a jury the trial court sustained the defendant’s motion for an instructed verdict and rendered judgment denying plaintiff any relief. From this judgment Page appeals contending that the trial court erred in granting an instructed verdict because (1) there was evidence of probative force that he had sustained an injury within the course of his employment and (2) there was evidence of probative force that the injury sustained was a producing cause of the loss of use of his right leg, and that each of these issues should have been submitted to the jury. We agree with appellant Page and reverse and remand the cause.

The facts are undisputed that appellant Page had been employed as a security guard at Preston State Bank in Dallas for sixteen years prior to December 2, 1974. Among other duties he was required each morning to walk from the main bank building, across its parking lot and driveway, to open the motor bank teller windows. On December 2, 1974, he arrived at the bank about 6:30 o’clock a. m., proceeded to the teller windows, opened the same and then started walking back to the main bank building. At that time he felt his right knee “buckle," and he fell striking his right knee, wrist and arm on the parking lot surface. He testified that he suffered pain as a result of this fall and immediately made his way to the bank building and reported what had happened to another security guard who made an entry in the log book and called Mr. Page’s wife. Two fellow employees observed Page’s knee when his pants leg was rolled up. The knee appeared bruised, swollen and skinned. Page was taken to see Dr. Gibbons by his wife on the same day of the accident and after an unsuccessful course of conservative treatment another doctor performed a total knee implant operation on August 12, 1975. Page testified that he had been unable to return to work since his action on December 2,1974, because he was no longer able to do his normal duties.

Three and one-half years before the incident in question, Page had injured the same knee while working as a security guard for a different employer, during his vacation from Preston State Bank. As a result of that accident he missed work for four and one-half months. Upon his return to work he performed his normal duties as a security guard for Preston State Bank for the next three years. Although he received periodic medical treatment during this time, he missed only ten days sick leave from work. In November 1974 his doctor suggested that he take some time off work and stay of his feet. There had been some swelling in his knee, but this had receded, and he returned to work on December 2, 1974, the date he alleges he suffered the injury which is the basis of this case.

It is uncontroverted that the parking lot was an instrumentality essential to the business of the bank. The evidence is also uncontradicted that Page was in the course of his employment as he walked from the main bank building to the motor bank and back across the parking lot and driveway at the time he fell to his knee on the surface of the driveway. There was no evidence of anything unusual about the surface of the driveway. It was a flat hard surface.

In support of its motion for instructed verdict appellee Texas Employers Insurance Association contended that Page had failed to introduce any evidence of an accidental injury in the course of employment within the meaning of Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967), in that the sole evidence is of the knee buckling which was caused by degenerative joint disease which did not originate or connect it with the employment with Preston State Bank.

Our review of the action of the trial court in directing a verdict is governed by well-established principles of law. Our supreme court has repeatedly held that it is error to instruct a verdict where the evi-denee raises any material issue. In passing upon the question of the authority of the trial court to instruct the verdict, as was done in this case, we must consider evidence favorable to appellant Page and discard other evidence and inferences. A peremptory instruction is warranted only when the evidence is such that no other verdict should be rendered. Thus, where there is any conflicting evidence in the record of probative nature, a determination of the issue is for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930); Allison v. Harrison, 137 Tex. 582, 156 S.W.2d 137 (1941); Hoover v. General Crude Oil Co., 147 Tex. 89, 212 S.W.2d 140 (1948).

Appellee Texas Employers Insurance Association does not question the validity of these well-established rules but attempts to justify the trial court’s action in granting a peremptory instruction on the ground that the injury sustained by appellant Page when he fell to the pavement after his knee “buckled” was not such an accidental injury as contemplated by Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967), which provides that the term “injury sustained in the course of employment” shall include

. injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.'

It argues that the injuries sustained by Page were the results of an idiopathic fall to the level ground which did not rise out of the employment of the employee. The basic question, therefore, is whether appellant Page presented sufficient evidence to raise an issue of fact that his fall and resulting injuries were connected with and grew out of the conditions of his employment so as to bring himself within the provisions of the statute.

The supreme court in Garcia v. Texas Indemnity Insurance Co., 146 Tex. 413, 209 S.W.2d 333 (1948) was confronted with a similar situation. There, the employee, a dock hand, fell on the dock during an epileptic seizure and struck his head against a sharp corner of a concrete post upon which steel edgings had been set to protect it from vehicles. The jury found that the injury sustained from the fall was the producing cause of the employee’s death and also that the injury arose out of his employment. The supreme court stated the question to be: “Was there a causal connection between the conditions under which his work was required to be performed and his resulting injury, under article 8309, Vernon’s Ann.Civ.St., . . . ?” In answer to the question, after reviewing decisions from other jurisdictions, the court said:

Under the great weight of authority as represented by the above-cited cases as well as the better reasoning, we hold that Garcia’s injuries arose out of his employment, because it had “causal connection with” his injuries, “either through its activities, its conditions, or its environments.”

Applying this test, the supreme court held that there was sufficient evidence to justify the jury’s findings that the injury did arise out of the employment of the employee because they were causally connected with conditions of his employment. Thus, the supreme court affirmed the judgment in favor of the employee.

Since the decision in Garcia, there have been three cases decided by courts of civil appeals, involving similar situations, and in each of the cases decided, the courts have upheld either jury findings or trial court findings supporting the employee’s right to recover compensation. These cases are General Insurance Corp. v. Wickersham, 235 S.W.2d 215 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n.r.e.); American General Insurance Co. v. Barrett, 300 S.W.2d 358 (Tex.Civ.App.—Texarkana 1957, writ ref’d n.r.e.) and the Northern Assurance Co. v. Taylor, 540 S.W.2d 832 (Tex.Civ.App.—Texarkana 1976), 1 Tex.Ct.Rep. 531.

In Wickersham, the employee fell to a hard tile floor, apparently as a result of a dizzy spell. Chief Justice McDonald of the Fort Worth Court of Civil Appeals reviewed the conflicting views of courts from other jurisdictions which had discussed the question and concluded that the injury was com-pensable not because of the extent or particular character of the hazard faced by the employee, but because such hazard did exist as one of the conditions of the employment. The court concluded that the trial court correctly decided the issue of fact in favor of the employee.

In Barrett, the factual situation presented in the trial court was strikingly similar to the facts in this case. There, the employee Barrett was leaving the premises of his employer when he felt that he was going to “black out” and then fell backwards, striking his head on the hard surface road which was on the company premises. Chief Justice Chadick of the Texarkana Court of Civil Appeals, in an exhaustive opinion, set forth in the margin a compilation of the divergent theories of the law from other jurisdictions. He concluded that the Wickersham opinion expressed the sound view of the law and should be adhered to in Texas although it is considered to be the minority view in the United States. The court then stated the rule which goes to the heart of this case:

In the instant case it can be said that the hard-surface road was an instrumentality essential to the work of the employer and falling against it was a hazard to which Barrett was exposed because of his employment and injury and death came to him because he was then working in the course of his employment.

In Taylor, the employee, who had sustained a hernia which had been surgically repaired, returned to his duties driving a company pickup truck. He had returned to the company parking lot and as he attempted to dismount from the truck, put his left foot down on the pavement and sustained a sharp pain in his groin. He sustained a hernia which had to be surgically repaired. In a jury trial, judgment was rendered based upon the finding that he has sustained the injury within the course and scope of his employment. The court of civil appeals upheld this finding.

Appellee Texas Employers Insurance Association recognizes these cases as reflecting the law of Texas but argues that we should overrule these cases and follow cases from other jurisdictions cited by Larson in his work “The Law of Workmen’s Compensation,” Volume 1, §§ 12.00-12.14, pp. 3-209-231 (1976). We cannot agree with appellee. We think that the authorities cited express a sound and correct view of the law dealing with the factual situation presented to us.

The evidence presented by appellant Page clearly raises an issue of fact as to whether the injury sustained by him on the occasion in question grew out of and arose in his employment with his employer Preston State Bank. Consequently, the trial court erred in removing the case from the jury and holding, as a matter of law, that the employee could not recover. We sustain appellant’s first point of error.

In his second point of error, appellant contends that the trial court erred sustaining defendant’s motion for instructed verdict because there was evidence of probative force that the injury sustained by the appellant Page was the producing cause of the loss of use of his right leg which raised a fact issue for the jury.

Appellee seeks to defend the trial court’s action by pointing to the fact that appellant’s contention that the injury was the producing cause of his disability depends upon the testimony of appellant, his wife, and other lay witnesses as well as certain medical records introduced by the custodian of the records of the medical clinic. It argues that there was no direct expert medical testimony and, therefore, the trial court was justified in granting the motion for instructed verdict. We disagree.

The supreme court has held that the producing cause of the injury may be established by lay witnesses. Griffin v. Texas Employers’ Insurance Ass’n, 450 S.W.2d 59 (1969). This rule is well-established in Texas that permanent disability, or any type of disability, may reasonably be inferred from circumstantial evidence produced by lay witnesses and this is true even though such evidence is contradicted by the testimony of medical experts. Travelers Insurance Co. v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.); Travelers Insurance Co. v. Arnold, 378 S.W.2d 78 (Tex.Civ.App. — Dallas 1964, no writ); Texas Employers Insurance Ass’n v. Hoover, 382 S.W.2d 174 (Tex.Civ.App.—Dallas 1964, writ ref’d n.r.e.); Texas Employers’ Insurance Ass’n v. Washington, 437 S.W.2d 340 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r. e.); Hartford Accident & Indemnity Co. v. Williams, 516 S.W.2d 425 (Tex.Civ.App.— Amarillo 1974, writ ref’d n.r.e.).

The testimony of the lay witnesses in this case was sufficient to present the issues of causation and extent of disability to the trier of fact and again the trial court erred in sustaining the motion for instructed verdict.

The judgment of the trial court is reversed and the cause is remanded for new trial.


author: KEITH, Justice.

text:
    RYAN MORTGAGE INVESTORS, Appellant, v. G. E. LEHMANN and Gordon H. Monroe, Appellees.
    No. 7866.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 28, 1976.
    Rehearing Denied Dec. 9, 1976.

      Stanford Harrell, Sam J. Day, Fort Worth, for appellant.
    Jon Mercer, Houston, for appellees.
   KEITH, Justice.

Defendant below appeals from two orders which (a) overrule its plea of privilege to be sued in Tarrant County and (b) granted a temporary injunction restraining it from foreclosing a deed of trust covering certain lands situated in Montgomery County. We will speak of the parties as they appeared in the trial court.

The record in voluminous and the fact structure is somewhat complicated; consequently, while we must make a lengthy statement, many facets of the case will escape mention.

This suit was instituted by the plaintiffs who were individual guarantors of a promissory note secured by a deed of trust upon certain land situated in Montgomery County. On December, 1,1972, Associated Mortgage Investors, a Massachusetts business trust (“AMI”), issued its commitment letter to Lake Conroe Equities, Inc., predecessor in title to Berton Land Development Corporation, a Texas corporation (“Berton”), whereby AMI committed itself to make a land acquisition loan in the amount of $7,300,000. Thereafter, on December 28, 1972, Berton executed its promissory note in such amount payable to AMI. On the same day, plaintiffs (Lehmann and Monroe), along with seven other individuals not parties hereto, executed a separate instrument entitled “Guarantee” under the terms of which they guaranteed payment of the loan made by AMI to Berton.

On January 5, 1973, Berton executed a deed of trust upon the land to secure the payment of the note mentioned. It was shown upon the trial that, although AMI was named as payee of the note, it was actually a joint participation of three real estate investment trusts with the appellant Ryan acting as the “lead” lender. Subsequently, the indebtedness was assigned to Ryan.

It is contended by the plaintiffs that Ber-ton and the other interested purchasers of the land were planning to create a recreational community around Lake Conroe with Berton being the vehicle whereby the land would be acquired and developed subsequently. Plaintiffs contended that Ryan’s agents made representations that a development loan would be made to Berton for which reason they signed the guarantee of the purchase money note now in dispute.

After the execution of the note, efforts to secure the development loan were unsuccessful and, when the land acquisition note became due one year from the date of its making, it was not paid by its maker, Ber-ton; and, under the undisputed record, the note remains unpaid and in default.

Plaintiffs, although owning no record title to the land covered by the deed of trust, and notwithstanding that they were only guarantors of payment of the note, brought suit against Ryan alleging that fraudulent misrepresentations were made which induced the execution of the note and that the note was usurious. They sought, according to the statement of the nature of the suit in the preamble of their brief:

“. . . Appellees asserted their cause of action in Usury seeking statutory damages and forfeiture of the principal balance alleged to be due on the loan contract with Appellant, and therefore, cancellation of the Deed of Trust lien securing that loan. Ancillary to the cause of action alleged, Appellees sought Temporary Injunction preventing a Trustee’s Foreclosure Sale of the Deed of Trust so as to preserve the ‘status quo’ between the parties pending resolution of this dispute in final trial.”

Plaintiff’s original controverting affidavit filed on January 28, 1976, sought to maintain venue by invoking only subdivision 14 of Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964). However, on the second day of the trial (February 20, 1976), plaintiffs filed what is styled “Plaintiffs’ Trial Amendment to Controverting Affidavit to Defendant’s Plea of Privilege” invoking subdivisions 7 and 23 as well as 14 of the venue statute.

At the conclusion of the hearing, the trial court entered orders overruling the plea of privilege and granting the temporary injunction. Further statements will be made in connection with the several points of error which we will discuss.

At the outset of our discussion, we recognize the rule enunciated in Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951):

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.”

See also, B & C Construction Co. v. Grain Handling Corp., 521 S.W.2d 98, 101 (Tex.Civ.App.—Amarillo 1975, no writ), where the continuing validity of the Goodrich rule is recognized.

Plaintiffs’ reliance upon subdivision 14 is misplaced. Under this subdivision, the venue facts are two: that his suit is for the recovery of land or for damages thereto and that a part of the land lay in the county of suit. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945); Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954). Ordinarily, except as to proof of the location of the land, the applicability of subdivision 14 depends wholly upon the allegations of the petition. See Harwood v. Hunt, 473 S.W.2d 287, 293 (Tex.Civ.App.—Beaumont 1971, no writ); Edgar v. Bartek, 507 S.W.2d 831, 835 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d).

It is clear that plaintiffs executed only one instrument, a “Guarantee” wherein they guaranteed payment of the loan made by defendant to Berton. Their petition does not contain an allegation that they owned or claimed any interest in the lands described in the deed of trust given to secure the promissory note. It was only during the course of the trial that plaintiffs sought to introduce a deed dated February 20, 1976 (the second day of the hearing), from Berton to plaintiffs purporting to convey an undivided one-fifteenth interest in the property covered by the deed of trust.

Not having alleged title or legal interest in and to land lying in Montgomery County, plaintiffs may not maintain venue under subdivision 14 of the statute. Harwood v. Hunt, supra.

We next consider plaintiffs’ reliance upon subdivision 23 of the venue statute, noting it is now the generally accepted rule that, in order to maintain venue under this subdivision, a plaintiff must prove a cause of action at the venue hearing. Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694, 698 (Tex.Civ.App.—Tyler 1965, no writ). See also, 1 McDonald, Texas Civil Practice § 4.30.2 — (I), p. 518 (1965 Rev. Vol.), and authorities cited in the bound volume as well as in the 1976 Cum. Supp. at p. 48. In our discussion of this subdivision, we will consider plaintiffs’ alleged claim of usury as supporting venue.

The note forming the basis of the litigation was executed only by “Berton Land Development Corporation" acting through its president and attested by its secretary. Neither signatures nor the names of the plaintiffs appear at any place on this note.

Each of the plaintiffs executed a “Guarantee” — a separate instrument consisting of three and one-half printed pages obviously prepared by the lender’s counsel. We reproduce in the margin a portion of the first paragraph of this instrument.

Plaintiffs were, in the language of the Supreme Court in Universal Metals and Machinery, Inc. v. Bohart, 539 S.W.2d 874 (1976), “ . . the kind of ‘guarantors’ which the instrument details; that is, guarantors who are primarily liable, who are jointly, severally and unconditionally liable for the prompt payment of principal and interest, when due and whether any action is taken against the maker or not.”

Under the authority of Bohart, supra, we are of the opinion that the plaintiffs, being guarantors only, may not avail themselves of the claim of usury under the facts shown by this record. As said in Hartnett v. Adams & Holmes Mortgage Co., Inc., 539 S.W.2d 181, 184 (Tex.Civ.App.—Texarkana 1976, no writ):

“In his status as an absolute guarantor, Jackson ... is prohibited from prosecuting an action to recover a usury penalty by Tex.Rev.Civ.Stat.Ann. art. 1302-2.09. The article denies a guarantor of a corporate note, such as this in suit, the right to claim the note is usurious or defend upon that ground. Universal Metals & Machinery, Inc. v. James T. Bohart, et ux., supra.”

See also, Micrea, Inc. v. Eureka Life Ins. Co. of Amer., 534 S.W.2d 348, 354-355 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n.r. e.). Plaintiffs’ reliance upon subdivision 23 based upon the contention of a usurious note is misplaced, and their contentions with reference to usury supporting venue are overruled.

We are likewise of the opinion that the plaintiffs may not maintain venue under subdivision 7 of the venue statute, the fraud section. As stated in 1 McDonald, Texas Civil Practice § 4.13, pp. 465-466 (1965 Rev. Vol.), three venue facts must be established, each by a preponderance of the evidence:

“(I) That the fraud or defalcation did in fact occur. The evidence must establish all elements of an actionable fraud or defalcation, including the fact that the plaintiff sustained some actual damage as a result of such wrong. .
“(II) That the fraud or defalcation was committed by the defendant or by one for whose acts he is legally responsible. .
“(Ill) That the fraud or defalcation occurred in the county of suit. . . .”

In our voluminous record we find no written commitment by anyone to lend funds for the development of the project. Only on page three of the commitment to make the land acquisition loan do we find any written reference to the development loan:

“AMI is hereby given the option to make the contemplated Development and Construction loans for future site improvements at the following rates and terms: [followed by a proposed interest rate for a term of three years].”

We have not been pointed to any document wherein there is an absolute commitment to make a development loan.

In the recent case of Edward Scharf Associates, Inc. v. Skiba, 538 S.W.2d 501, 502 (Tex.Civ.App.—Waco 1976, no writ), the court cites several cases supporting the holding that where a contract contemplates the creation of a lien or mortgage, such contract is within the Statute of Frauds, and must be in writing to be enforceable. See Tex.Bus. & Comm.Code Ann. § 26.01 (1968).

There is yet another reason why the plaintiffs may not prevail under this subdivision of the venue statute: each testified unequivocally that he had only one meeting with any representative of Ryan wherein the proposed development loan was mentioned; and, each was certain that such meeting was held at the Warwick Hotel in Houston, Harris County. There is no evidence that either of the plaintiffs met with any representative of Ryan in Montgomery County or any representations were made to them by Ryan’s agents in that county.

As Justice Cadena held in Covington v. Eskridge, 430 S.W.2d 589, 590 (Tex.Civ.App.—San Antonio 1968, no writ):

“Since there is no evidence even tending to show that either defendant committed any act of fraud in Wilson County, appellant cannot claim the protection of this exception.”

Accord: McGough v. Massey-Ferguson, Inc., 384 S.W.2d 154, 156 (Tex.Civ.App.— Eastland 1964, writ dism’d); Fambrough v. Schooler, 307 S.W.2d 590, 591-592 (Tex.Civ.App.—Eastland 1957, writ dism’d).

Moreover, we note that plaintiff’s reliance upon this subdivision is predicated upon statements said to have been fraudulent which were in the nature of a promise to act in the future—i. e., make the developmental loan. Under these circumstances, “such statement cannot be legally said to be a fraudulent misrepresentation unless it is alleged and proved that at the time the statement or promise was made the person making same did not intend to perform it.” Morgan v. Box, 449 S.W.2d 499, 504 (Tex.Civ.App.—Dallas 1969, no writ). Accord: Acoustical Scrs. in Color, Inc. v. T. C. Lordon Co., Inc., 524 S.W.2d 346, 349 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.); Citizens Standard Life Insurance Co. v. Gilley, 521 S.W.2d 354, 356 (Tex.Civ.App.—Dallas 1975, no writ); Precision Motors, Inc. v. English, 517 S.W.2d 371, 372 (Tex.Civ.App.—Beaumont 1974, no writ); Brooks v. Parr, 507 S.W.2d 818, 819-820 (Tex.Civ.App.— Amarillo 1974, no writ).

It necessarily follows from what has been said earlier that we are of the opinion that the trial court erred in overruling Ryan’s plea of privilege to be sued in Tarrant County; consequently, we reverse that portion of the judgment and now render judgment transferring the entire cause to one of the district courts of Tarrant County, Texas.

The temporary injunction granted by the trial court was in the nature of an ancillary injunction. See Winslow v. Duval County Ranch Company, 519 S.W.2d 217, 220 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.), and cases therein cited. And, as stated in 6 Texas Practice, Remedies § 93, p. 143 (2d Ed.1973): “Injunctions which are ancillary to suits involving other causes of action are governed by the venue statutes applicable to the main suit.”

We have already determined that venue for the main suit is in Tarrant County; thus we are of the opinion that the temporary injunction was improperly granted in the trial court. The temporary injunction is vacated, dissolved, and set aside.

Reversed and rendered; the temporary injunction is dissolved, and the cause is ordered transferred to a district court in Tarrant County.

STEPHENSON, J., not participating.

On Motion for Rehearing

Plaintiffs’ counsel has now presented us with a lengthy motion for rehearing wherein he includes eleven assignments of error. Such is the duty of an attorney at the bar; but, counsel has also included in this same instrument statements which coincide with those mentioned in Rust v. Rust, 88 S.W.2d 787, 794 (Tex.Civ.App.—Fort Worth 1935), modified, 131 Tex. 532, 117 S.W.2d 59 (1938). In so doing, it is apparent that counsel has failed to heed the admonitions of Honorable Garland F. Smith of the Wes-laco Bar as found in Appellate Procedure in Texas, § 19.10 (State Bar of Texas, 1964).

We say, as was said in City of San Antonio v. Santa Rosa Infirmary, 249 S.W. 498, 510 (Tex.Civ.App.—San Antonio 1923), reversed on other grounds, 259 S.W. 926 (Tex.Com.App.1924, jdgmt. adopted):

“This court is not supersensitive, and gentlemen of the bar know that we invite their vigorous argument and forceful criticism, so long as such arguments and criticisms are respectful in language and intent. We ask no more than this; but all of it will be required.
“However, out of consideration for the rights of appellees, who, of course, are not responsible for the conduct of their counsel, we have concluded not to strike the objectionable documents from the files of the court, as first intended.”

Notwithstanding counsel’s approach to the questions presented, we have again reviewed the voluminous record and again will place a few of his present complaints against the record; and, having done so, the motion for rehearing is overruled for the reasons now to be stated.

Counsel cites to us the opinion in Dorfman Development Co. v. American Commonwealth Development Co., 523 S.W.2d 268, 270 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ), stating:

“It is undisputed that this is a suit to cancel a Deed of Trust Lien. A suit to cancel a Deed of Trust Lien is one to remove an encumbrance within the mandatory application of subdivision 14.”

A text was relied upon in Dorfman and it is clear that in order to maintain venue under the subdivision, the moving party (plaintiff) must be an owner. Dorfman, being a limited partner had standing to maintain the suit. Plaintiffs below, in the case at bar, were not owners.

Next, citing five no-writ cases holding that suits to cancel liens securing usurious notes may be maintained under subdivision 14, counsel contends that we erred in failing to retain venue in the county of suit. Again, he assumes his major premise; but, in our case, the plaintiffs have never owned the land; they were neither owners nor mortgagors; they were not parties to the liens; they were not authorized to maintain the suit to set aside the liens.

Counsel argues at considerable length what he conceives to be the holding in Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (1976) concluding that our “contrary reasoning ... is grotesquely fallacious.”

We did, at least, submit two late cases supporting our views, neither of which is even mentioned by plaintiffs’ counsel. One of the cases which we cited, Micrea, Inc. v. Eureka Life Ins. Co. of Amer., 534 S.W.2d 348 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n.r.e.), was interesting in that plaintiffs’ present counsel is shown to be the only attorney for the losing party, Micrea, Inc. His failure to mention this decision, under the circumstances, may be understandable, but is inexcusable. Although not of counsel in Hartnett v. Adams & Holmes Mortgage Co., Inc., 539 S.W.2d 181 (Tex.Civ.App.—Texarkana 1976, no writ), plaintiffs’ counsel in this ease again fails to mention the decision which is squarely in point in the case at the bar.

Counsel takes us to task for having noted that the plaintiffs testified that they each had only one meeting with any representative of Ryan and that was in the Warwick Hotel in Houston. We have checked the record and find that our statement so made was true.

Plaintiff Lehmann testified:

“Q. You met with Mr. Thorne [Ryan’s representative] one time, is that right?
“A. Right.
“Q. And I believe you all had dinner in the Warwick Hotel in Houston?
“A. Right.”

Plaintiff Monroe, mentioning his conversation with Thorne at the Warwick Hotel meeting attended by Lehmann, did not testify as to any meetings with or representations made to him by any representative of Ryan in Montgomery County. Instead, the testimony upon which plaintiffs’ counsel relies is that of the erstwhile president of Berton Land — not from either of the plaintiffs in this case.

Neither of our plaintiffs was interrogated as to whether he relied upon representations made to other people in Montgomery County and communicated by these people to the plaintiffs.

Finding no merit in any of the contentions advanced in the motion for rehearing, it is overruled.

STEPHENSON, J., not participating.

      . Defendants have now made it known to the Court that the Bankruptcy Court having jurisdiction of Berton did, by an order dated March 25, 1976, set aside said deed and decreed that plaintiffs “acquired no interest either legal or equitable” in such land. As to our authority to consider such evidence, see and compare Board of Trustees of Georgetown Independent School District v. Kreger, 369 S.W.2d 916 (Tex.1963).

      . “In consideration of certain financial accommodations given or to be given by AMI INVESTMENTS, INC., hereinafter referred to as ‘Lender’, to BERTON LAND DEVELOPMENT CORPORATION, hereinafter referred to as ‘Borrower’, each of the undersigned (1) hereby unconditionally guarantees (a) the prompt payment of all indebtedness, as hereinafter defined, of Borrower to Lender, including, specifically the indebtedness evidenced by that certain Promissory Note dated December 28, 1972, in the principal amount of SEVEN MILLION THREE HUNDRED THOUSAND and No/100 Dollars ($7,300,000.00), with interest at the rate specified in said note, executed by Borrower, .
      It- is undisputed in our record-that Ryan has not made any demand-upon the guarantors for payment of either principal or interest due upon the noto executed by Berton which they guaranteed; and, it ⅛-equally well- established that no one — Berton, plaintiffs, or tho other guarantors — has paid as much as a thin dime on principal--or interest- on the monoy ad vancedi-

      . Art. 1995, § 7: “Fraud and defalcation. — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”