author: DODSON, Justice.

text:
    Katharine Harman ZINT et al., as natural guardian and next friend of Kenneth Edward Harman, a minor, Appellants, v. Edward Farrar CROFTON, Jr., Appellee.
    No. 8838.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 27, 1977.
    Rehearing Denied Feb. 27, 1978, With Opinion and Amended Motion for Rehearing Denied.

      Chitwood, Riley & Snyder, Inc., Dallas, Stokes, Carnahan & Fields, O. P. Fields, Amarillo, for appellants.
    Culton, Morgan, Britain & White, L. A. White, Amarillo, for appellee.
   DODSON, Justice.

Plaintiffs Katharine Harman Zint, Carolyn Harman, Cecilia Harman and Kenneth B. Harman, as guardian of the person and estate of Kenneth Edward Harman, a minor, brought this action in the trial court against the defendant, Edward Farrar Crofton, Jr., individually and as executor of the estate of Luline S. Crofton, deceased, for construction of the decedent’s last will and testament. The trial court, without a jury, determined that certain “personal instructions” in the will were precatory and entered a take-nothing judgment against the plaintiffs and thereby denied any further requested relief. From this judgment, plaintiffs appeal to this court. We affirm the judgment of the trial court.

The pertinent facts are these:

(1) Luline S. Crofton died in Amarillo, Potter County, Texas on August 1, 1970, leaving a written will dated May 18, 1966.

(2) Two children were born to Luline S. Crofton during her lifetime. They were Edward Farrar Crofton, Jr., the defendant in this action, and Margaret C. Harman, who predeceased Luline S. Crofton, and left surviving her four children, who are the plaintiffs herein.

(3) This will was admitted to probate on August 24, 1970 and Edward Farrar Crof-ton, Jr., was appointed executor of the estate. He qualified and letters testamentary were issued.

(4) On December 1, 1971 the plaintiffs filed a will contest to set aside such will and such probate upon the grounds of undue influence and mental incapacity. This contest of the will ended by an order entered December 11,1972, wherein all of the plaintiffs’ allegations were overruled and the probate confirmed.

(5) The estate of Luline S. Crofton consists of both real, personal and mixed properties.

(6) The pertinent paragraphs of the will are as follows:

SECOND:

After the payments of my just debts, I hereby will, bequeath and devise all of the residue of my property and estate, real, personal or mixed, wherever found or located, that I may die seized of or to which I may be entitled at my demise, to my beloved son, Edward Farrar Crofton, Jr., with personal instructions to him for my four grandchildren. In the event, however, that my son Edward Farrar Crofton, Jr., predeceases me or passes away before the final distribution of my estate, then in that event, I will one-half of said residue to my beloved daughter-in-law, Mrs. Bettie Crofton, wife of Edward Farrar Crofton, Jr., and the remaining one-half to my four grandchildren, Katharine Harman, Carolyn Harman, Cecilia Ann Harman and Kenneth Edward Harman, share and share alike. (Emphasis added.)

and

THIRD:

My beloved daughter, Margaret C. Harman, departed this life leaving four children, namely, Katharine Harman, Carolyn Harman, Cecilia Ann Harman and Kenneth Edward Harman, all minors, and instead of creating a trust herein for my four grandchildren, I have given instructions to my beloved son and heir, Edward Farrar Crofton, Jr. as to the inheritance that my grandchildren are to receive and I know full well that he will carry out my instructions and that he will see that my grandchildren are well provided for and are given every opportunity to secure the greatest advantages in higher education.

This case was submitted to the trial court on a document entitled “Agreed Testimony and Statement of Facts.” The trial court made no additional finding of facts nor conclusions of law other than those stated in the judgment and no others were requested by the parties.

The plaintiffs bring four points of error complaining of the judgment entered in the trial court. These points are as follows:

Point One — The trial court erroneously construed the will of Luline S. Crofton in holding that the provisions of the third paragraph of said will, where Luline S. Crofton described an oral trust outside the terms of her will, were purely preca-tory and could be disregarded.
Point Two — The trial court erred in failing to render declaratory judgment as to the effect that the will of Luline S. Crof-ton was inoperative to pass the title of her property and that plaintiffs who are children of her deceased daughter were entitled to one-half of her estate under the laws of descent and distribution.
Point Three — The trial court erred in construing the will of Luline S. Crofton so as to disinherit her grandchildren by a deceased daughter, where the terms of her will plainly show a clear attempt to provide for said grandchildren by an unenforceable oral trust outside the terms of the will.
Point Four — The trial court erred in holding that Edward Farrar Crofton, Jr., was entitled to the entire estate of Luline S. Crofton under her will in fee simple, because Edward Farrar Crofton, Jr., expressly recognizes in the agreed statement of facts that he is bound by an oral trust for the benefit of the grandchildren of the testatrix.

Thus, we must determine whether Luline S. Crofton, deceased, intended to die testate by her last will and testament and thereby devise all of the residue of her property to her son Edward Farrar Crofton, Jr., in fee simple absolute, without legal limitations or whether by making reference to “personal instructions” to her son in regard to her named grandchildren, she destroyed her testamentary intent to die testate as to her property.

The plaintiffs contend, among other things, under these points and in their supporting briefs, that reference to “personal instructions” in the second and third paragraphs of the will show an intent to create an oral trust outside the will for the use and benefit of her four named grandchildren; that the such oral trust fails in the absence of proper written instructions incorporated by reference or otherwise into the will; that such attempt to create an oral trust outside the will and its resulting failure destroys Luline S. Crofton’s testamentary intent to die testate, causing the failure of the will. This would result in the testatrix dying intestate and the plaintiffs would take one-half of the residue property of the decedent. We do not agree.

The proper function of the court, in construing wills, is stated in 80 Am.Jur.2d, Wills, § 1128 as follows:

It is the primary function and duty of the courts, with, respect to the construction of wills, to ascertain the intention of the testator as to the disposition of his property, and, if legal, to carry it into effect. The duty of the court is to interpret the will, not to construct it or make a new one, and if the testator has clearly expressed one intention, the court cannot impute to him another. Where there is no ambiguity in the will, judicial construction is not required. Consequently, the court has no power to piece out, take from, or modify the instrument before it in order to make it conform to the opinion of the individual judge as to an equitable distribution of the testator’s property. In other words, courts may not make a mere conjecture as to the testator’s intention, substitute their discretion for his, or build up a scheme for the purpose of carrying out what might be thought was or would be in accordance with his wishes. A will cannot be changed by the court against its true intent and meaning, even though the interested parties are agreeable to the change. Courts may and should, however, where the intention of the testator is plain, go to the uttermost limits of construction in order to discover such intention, as expressed in the language used. (Emphasis added.)

With these general principles in mind we turn to the established rules of construction to determine the issues presented in this case.

In construing wills, there is a positive presumption against intestacy and the mere fact that the testatrix made a will is evidence of an intent not to die intestate. In Wenzel v. Menchaca, 354 S.W.2d 635 (Tex.Civ.App.—El Paso 1962, writ ref’d n. r. e.) the court stated:

There is a positive presumption against intestacy. Where a will is ambiguous or is open to two reasonable constructions, it will be given that construction which will prevent intestacy. The mere fact that the testatrix made a will at all is evidence of an intent not to die intestate. Urban v. Fossati, 266 S.W.2d 397 (Civ.App.); Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163. (Emphasis added.)

Also, to the same effect are Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.—Waco 1939, writ ref’d) and Kostroun v. Plsek, 15 S.W.2d 220 (Tex.Comm’n App.1929, jdgmt adopted).

Also, in Pritchett v. Badgett, 257 S.W.2d 776 (Tex.Civ.App. —El Paso 1953, writ ref’d) the court said:

In the construction of a will the intent of the testator should be declared, and if legal, enforced. Bell County v. Alexander, 22 Tex. 350, 351; Laval v. Staffel, 64 Tex. 370, 372; Haring v. Shelton, 103 Tex. 10, 11, 122 S.W. 13.

Unquestionably, Luline S. Crofton intended to die testate and dispose of all her residue property; otherwise she had no reason to make a written will.

The second paragraph of this will as quoted above indicates a clear intent by Luline S. Crofton, deceased, to devise all of the residue property in fee simple absolute to her son Edward Farrar Crofton, Jr., if he survives her. The second sentence of this paragraph supports this conclusion, because Mrs. Crofton specified a different disposition of all of the residue property in the event that Edward Farrar Crofton, Jr., should predecease her. Had her intent been otherwise, then there is no logical or reasonable explanation for such second sentence of the second paragraph.

This conclusion is further supported by the rule stated in Roberts v. Drake, 380 S.W.2d 657, 660 (Tex.Civ.App.— Dallas 1964, writ ref’d n. r. e.) as follows:

If it does not clearly appear from the language of the will that a less estate was intended to be created the devise will be deemed to be a fee simple. Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, wr. ref. In this connection the rule that every part of a will must be given effect, if possible, is subordinate to the rule that a devise shall be deemed a fee simple, unless limited by express words. Winfree v. Winfree, Tex.Civ.App., 139 S.W. 36, wr. ref.
It is the duty of a court not only to construe the will as creating a vested estate, if possible, but also to adopt the construction which will permit the earliest vesting of title in the first taker. In the event of repugnancy, that construction is favored which admits of immediate vesting of the entire estate; and when the will, fairly construed, leaves the question in doubt, the doubt will be resolved in favor of the vesting of the title at ,the earliest possible moment, so as to . uphold the will. 44 Tex.Jur. 737-738, § 172; Jones’ Unknown Heirs v. Dorchester, Tex.Civ.App., 224 S.W. 596; Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, err. ref.; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, err. ref. (Emphasis added.)

Under this so-called “first taker” rule the law favors the construction of the will which provides the vesting of the greatest or largest estate possible in the first taker. The presumption prevails that testator intended to make a full disposition of all of his property, and the will should be construed to prevent full or partial intestacy. Rogers v. Nixon, 275 S.W.2d 197 (Tex.Civ.App.—San Antonio 1955, writ ref’d). To the same effect is McDowell v. Harris, 107 S.W.2d 647 (Tex.Civ.App.—Dallas 1937, writ dism’d).

Also, the court in Wenzel v. Menchaca, supra, further stated:

The law favors the vesting of estates, and it is the duty of a court to so construe a will where the language of the will is susceptible to such construction. Under the statute (Article 1291, Vernon’s Annotated Texas Civil Statutes), every estate in lands granted, conveyed or devised to one “ * * * shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” (Emphasis added.) ■

and the court further stated:

Language which does not clearly limit or reduce the fee estate deemed to have been devised, and which at best is uncertain and ambiguous in its meaning, cannot serve to disturb, cut down or diminish a fee simple estate otherwise clearly devised. (Emphasis added.)

These court adopted rules of construction apply with equal importance to devisees of both real' and personal properties. Moody v. Moody National Bank of Galveston, 522 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

We conclude that the reference to “personal instructions” at the end of the first sentence in the second paragraph and the third paragraph of the will of Luline S. Crofton, deceased, does not clearly limit or reduce the fee simple estate devised to Edward Farrar Crofton, Jr., in the first part of the first sentence of the second paragraph. At best such language is uncertain and ambiguous in its meaning and cannot legally serve to disturb, cut down, or diminish the fee simple estate devised to the defendant. See 57 Tex.Jur.2d Trusts §§ 27, 28; Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363 (1944) and Rich v. Witherspoon, 208 S.W.2d 674 (Tex.Civ.App.—Waco 1948, no writ) in addition to the above cited authorities. Likewise, such language does not destroy the testamentary intent of Luline S. Crofton, deceased, to die testate and to dispose of all of her property by the will. Had she intended to limit the estate to her son to less than a fee simple estate by creating an express trust, or even by attempting to express an oral trust outside the will, it would have been a very simple matter to so state explicitly. Instead, the language of the will specifically disavows an intent to create a trust.

Plaintiffs in their briefs rely on Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382 (1892) and Ray v. Fowler, 144 S.W.2d 665 (Tex.Civ.App.—El Paso 1940, writ dism’d jdgmt cor.). In each of these cases the testator expressed a specific intent to create a trust; however, the language used in each instance was held ineffective to accomplish the trust. As we said above, in the case before us, Luline S. Crofton, deceased, by express terms of the will disavows an intent to create a trust for her grandchildren. Thus, we do not consider plaintiffs’ cited authorities controlling on the issues before the court in this ease.

Plaintiffs complain in their fourth point of error that the trial court erred in holding that the defendant was entitled to the entire estate in fee simple because the defendant expressly recognizes in the agreed statement of facts that he is bound by an oral trust for the benefit of the grandchildren of the testatrix. The complaint is made in reliance on the defendant’s statement in the document entitled “Agreed Testimony and Statement of Facts” presented to the trial court as follows:

EDWARD FARRAR CROFTON, JR., the surviving son of LULINE S. CROF-TON, claims that the will of LULINE S. CROFTON passes the legal title to him to all of the property in the estate, individually and as Trustee, being charged as Trustee to carry out the instructions given to him by LULINE S. CROFTON and referred to in Paragraph Third of such will.

We consider this statement of opinion to be no more than an indication of intent on the part of the defendant to morally follow the personal and precatory wishes contained in the will with regard to the grandchildren. We do not construe the statement as an agreement to attempt to destroy the testamentary intent of the testatrix or as an agreement to effectuate a different disposition of the property of the estate. The assertion or claim is not followed by overt actions such as disclaimer or renunciation to take all or any part of the property of the estate in compliance with section 37A of the Texas Probate Code. Indeed, by brief and oral argument in this court, the defendant contends for an affirmation of the trial court judgment.

Even a legatee’s contention for a construction of a will against his interest does not warrant its adoption by the court. Union & New Haven Trust Company v. Sellek, 128 Conn. 566, 24 A.2d 485, 140 A.L.R. 837. As stated in In re Harries’ Wili, 206 N.Y.S.2d 15, “[performance of precatory language occurs as a matter of conscience only, and the testator accepts all risk of compliance or non-compliance.” We determine that the claim and assertion of the defendant legally amounts to no more than an expression of his conscience and intent to morally comply with the precatory language in the will.

We have reviewed the record in this case, the briefs, the respective contentions of the parties and particularly all of the provisions of the will. We conclude that the plaintiffs’ four points of error should be overruled. The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

By Amended Motion for Rehearing, we are again asked to declare the last will and testament of Luline S. Crofton insufficient to pass fee simple title to her property to her son Edward Farrar Crofton. The appellants contend the language used in Mrs. Crofton’s will clearly establishes that she intended to create a trust outside the will for her grandchildren, that the trust fails for imperfection and therefore Mrs. Crof-ton’s property passes by the law of descent and distribution rather than by the will.

In support of the position, they rely on Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382 (1892) and Ray v. Fowler, 144 S.W.2d 665 (Tex.Civ.App.—El Paso 1940, writ dism’d judgmt cor.). In contrast to Mrs. Crofton’s will, the wills in Heiden-heimer and Ray clearly indicated each testator’s desire to create a trust. The Heid-enheimer will stated that a trust was being established while Ray named a trustee. On the other hand, Mrs. Crofton’s will declared that it did not create a trust.

Therefore, we conclude the personal instructions and other language with reference to the grandchildren were no more than words of expectation, which were not intended to impose a mandatory or preemp-tory obligation on Edward Farrar Crofton, the devisee of the property. Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363 (1944). Thus, we remain convinced that the language of Mrs. Crofton’s will granted and devised to her son the fee simple title to her property. Byars v. Byars, supra; Williams v. Nichols, 257 S.W.2d 136 (Tex.Civ.App.—San Antonio 1953, writ ref’d); Rich v. Witherspoon, 208 S.W.2d 674 (Tex.Civ.App.—Dallas 1948, no writ). See also Tex.Rev.Civ.Stat.Ann. art. 1291 (1962).

After considering all matters set out in Appellant’s Motion for Rehearing and Appellant’s Amended Motion for Rehearing, we adhere to our former disposition of the case. Appellant’s Motions for Rehearing are overruled.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    MISSION MUNICIPAL HOSPITAL, Appellant, v. Edward BRYANT et ux., Appellees.
    No. 1243.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1977.
    Ronald B. Layer, Rankin & Kern, Inc., McAllen, for appellant.
    Oscar Alvarez, Texas Rural Legal Aid, Inc., Weslaco, for appellees.
   OPINION

BISSETT, Justice.

This is a statute of limitations case. The sole question presented is whether the plaintiff’s petition shows on its face that the action brought against defendants was barred by Tex.Rev.Civ.Stat.Ann. art. 5526(5) (1958).

The action is in sworn account. Mission Municipal Hospital filed its sworn petition in the County Court at Law of Hidalgo County, Texas, on March 1, 1976. Defendants, among other defenses, by a plea in bar, pled that plaintiff’s action was barred by art. 5526(5) because the petition shows on its face that none of the medical goods and services described therein were furnished defendants “within two years previous to the commencement of this action”. The trial court sustained the plea and dismissed plaintiff’s action with prejudice. Plaintiff has appealed. We reverse and remand.

The judgment, insofar as this appeal is concerned, recites:

“On this the 6th day of January, 1977 . . . came the PLAINTIFF by and through its attorney of record and announced ready for Pre-Trial, and came the DEFENDANTS by and through their attorney of record and announced ready for a Pre-Trial, and the Court, after hearing the argument of counsel and examining the pleadings, the Defendants’ affidavit on file in support of their Plea in Bar, and the Memorandums of Law submitted by the Parties concerning the tolling of the statute of limitations, without hearing any oral testimony or receiving exhibits, is of the opinion that Paragraph 1 of DEFENDANTS’ PLEA IN BAR raising limitations is well taken and that the same should be sustained .
* * * * * *
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that Paragraph 1 of DEFENDANTS’ PLEA IN BAR be and it is hereby in all things sustained to which action PLAINTIFF in open Court excepted.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the above entitled and numbered cause be and the same is hereby dismissed with prejudice . . . ”

The judgment was signed on April 1, 1977. There is nothing in the record which indicates that the trial judge made any pronouncement from the bench in open court before April 1, 1977.

There is no showing in the record that defendant’s plea in bar that raised limitations as an affirmative defense to plaintiff’s action was ever set down for hearing by the trial court, or that a hearing was had thereon. The record does reveal that a pre-trial conference was held on January 6, 1977. On that date, plaintiff’s first amended petition, which was filed on November 3, 1976, constituted its live petition. With respect to the issue here presented, it was alleged therein that “medical goods and services” were furnished defendants “on or before the 19th day of December, 1973” in the total amount of $1,194.70; that there is due and unpaid thereon, after allowing all credits to which defendants are entitled, the sum of $425.77, which is past due and unpaid “and has been since March 10, 1974”. Also defendants, on the date of the pre-trial conference, filed an affidavit among the papers of this cause, entitled “AFFIDAVIT IN SUPPORT OF DEFENDANTS’ PLEA IN BAR”, the pertinent parts of which read:

“That on January 9, 1974, Defendant Edward Bryant was released from Plaintiff hospital, and we then and there informed Plaintiff of our inability to retire the balance due on our account.”

Plaintiff filed its second amended original petition on January 21, 1977, and alleged that “medical goods and services to-talling $1,194.70” were furnished defendants “on or before the 19th day of December, 1973”; that after allowance of all credits there is still due the sum of $425.77, which is past due and unpaid “and has been since May 5,1974”. It was further alleged:

“The account was covered by Medicare and the agreement and understanding of the parties was that the account was and could not be due until Medicare paid and it was therefore known Medicare would pay any of the bill, if so the amount it would pay, and whether it would pay all. Medicare paid on May 5, 1974, which was when plaintiff learned whether it would pay and the amount paid. Until this point it was not known what was due

In view of our decision to reverse the judgment of the trial court and to remand the cause under plaintiff’s second point of error, it is not necessary that we consider any of the remaining points. Plaintiff, in its second point, complains that the trial court erred in sustaining defendants’ plea in bar because there was no evidence to support the implied finding that limitations had run against plaintiff’s cause of action as a matter of law. We agree. We can only conclude from the record before us, that the plea in bar was sustained solely on what the file revealed as of the date of the pre-trial conference on January 6, 1977. Each party to this appeal has made statements in their briefs which are disputed by the other and which are not substantiated by the record. We do not consider any of the statements which are not borne out by the record. We dispose of this appeal solely on one of the points brought forward, the contents of the transcript, and the recitals in the judgment.

The purpose of a pre-trial hearing is to aid the trial court in narrowing the issues and in disposing of other matters which may aid in the final disposition of the action. The trial court may, in a pre-trial conference, among other things, consider all dilatory pleas and all motions and exceptions relating to a suit pending; the necessity or desirability of amendments to the pleadings; the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; and such other matters as may aid in the disposition of the action. “The court shall make an order which recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice”. Rule 166, T.R.C.P. Such an order was not made in the instant case.

The Supreme Court of Texas, in Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214 (1958), said:

“. . . defenses ‘in bar’ are not the proper subject matter of disposition on mere preliminary hearing before the court like pleas in abatement, although a speedy and final judgment may be obtained on the basis of matters in bar and without the formality of a trial on the merits, if the parties so agree or if recourse is had to the process of summary judgment where contested fact issues are not present . . . ”

We have examined the transcript carefully and conclude from our perusal of the contents therein that defendants’ “Plea in Bar” cannot be interpreted or considered as a motion for summary judgment. Neither it nor the “Affidavit” filed in support thereof meet the requirements of Rule 166-A, T.R.C.P. The record is silent as to any agreement between the parties to the effect that the trial court could consider the plea in bar at the pre-trial conference.

The trial court, following the conclusion of the pre-trial conference, did not make any ruling with respect to the amendment of pleadings. Therefore, plaintiff was at liberty to amend. It did so on January 21,1977. The trial judge had that pleading, plaintiff’s second amended original petition, before him at the time judgment was signed. Under the circumstances, the trial judge could not ignore the allegations therein contained with respect to the asserted “agreement” between the parties. The allegations created a fact issue.

There is no warrant for the summary disposition of the plea in bar which was made in this case. No evidence was introduced to support the claim made by defendant in their plea in bar. The “Affidavit” of the defendants cannot be considered as evidence which establishes, as a matter of law, that the two-year statute of limitations had run on plaintiff’s asserted cause of action when plaintiff filed this suit. The “arguments of counsel” and “memorandums of law” do not furnish a basis which will support the judgment. Plaintiff’s second amended original petition does not show on its face that the asserted action is barred as a matter of law under the invoked statute of limitation. Plaintiff’s second point is sustained.

We reverse the judgment of the trial court and remand the case to the trial court with instructions to reinstate the case on its docket.

REVERSED and REMANDED with instructions.


author: GUITTARD, Chief Justice.

text:
    R. E. CROWLEY, Appellant, v. Thomas F. LARKIN et al., Appellees.
    No. 19275.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 19, 1978.
    Rehearing Denied March 2, 1978.
    James G. Clement, Irving, for appellant.
    F. Ward Steinbach, Dallas, for appellees.
   GUITTARD, Chief Justice.

This trespass to try title suit involves a strip of land 43.7 feet wide between the land of plaintiffs Thomas F. Larkin, Jr. and others on the east and a tract owned by the defendant R. E. Crowley on the west. Plaintiffs claim record title to the strip under a deed dated March 18, 1917, which conveyed to Thomas F. Larkin, Sr. two tracts of land aggregating 140 acres, and plaintiffs also claim title by adverse possession. Defendant Crowley answered only by a general denial. The jury’s answers to special issues were favorable to plaintiffs, and defendant appeals from a judgment on this verdict, contending that there is no evidence to support the jury’s finding either on the issues concerning record title or those concerning adverse possession. We affirm on the ground that the evidence supports the jury’s finding of adverse possession for ten years or more under the ten-year statute of limitation, Tex.Rev.Civ. Stat. art. 5510 (Vernon 1958).

In our view,the crucial finding of fact is the jury’s answer to the third special issue, which inquired whether the plaintiffs and those under whom they claim, in person or through tenants, have had peaceable and adverse possession of the land in question, cultivating, using or enjoying the same, for any period of ten years or more prior to March 12, 1974. The jury answered this issue “yes.” The only attack defendant makes on this finding is that “prior to the filing of this cause, plaintiffs made no claim to the land in question sufficient to support a claim of title by adverse possession.” We hold that the evidence is sufficient, at least circumstantially, to show that plaintiffs and their predecessor did openly and notoriously claim title to the disputed strip as a part of their land.

The record shows that two adjacent tracts of land, aggregating 140 acres, were conveyed to Thomas F. Larkin, Sr. by deed dated May 18,1917. The present controversy arises from the fact that a fence along the west side of this land was not exactly on the boundary described in the deed, but was a short distance further west. The evidence tends to show, however, that the senior Larkin, and after him the plaintiffs, all of whom we shall refer to as “the Lar-kins,” have always treated this fence line as their west boundary. There is also evidence that until recently the owners of the land adjoining on the west likewise recognized the fence line as the boundary.

The principal witness for plaintiffs was Thomas F. Larkin, Jr. He testified that he was fifteen years old in 1917 when his father bought the land and that it was then completely enclosed by fences, including a fence along the west boundary. There is evidence that this fence was continuously maintained until some time in the 1950’s, and that remnants of it were in place at the time of the trial. Larkin testified that he had the duty of maintaining the fence from the time his father first acquired the land, and that he did so for a number of years. About the year 1930 the land within the fences was leased for grazing purposes to one McCoy, and remained under lease continuously to McCoy and his son until 1952, when the Larkins began gravel removal operations on a part of their land. The McCoys maintained the fences as part of their lease obligation. The land to the west of the Larkin land was acquired by Gifford-Hill Company in 1928, and in 1938 Gifford-Hill conveyed the north ten acres of their land to Charles Bounds. In 1971 defendant Crowley acquired a narrow tract along the east side of the Bounds ten acres. He had occupied this tract for several years previously as a tenant. The strip now in dispute lies to the east of, and adjacent to, Crowley’s tract.

Although Thomas F. Larkin, Jr. testified that there was a fence along the west boundary of the land purchased by his father in 1917, he was apparently mistaken with respect to the exact location of the boundary, since the land described in the deed did not actually extend as far west as the fence. The evidence shows, rather, that no fence was ever erected on the true boundary until the present controversy arose. There is also evidence from which the jury could draw the inference that for many years the only visible evidence of occupancy between the Larkin land and the land to the west was the fence line in question, and that at least until the middle 1960’s, the acts of all the owners on both sides were consistent with recognition of the old fence line as the boundary. Aerial photographs, one as early as 1959, bear evidence of this occupancy line. The 1938 deed from Gifford-Hill to Bounds describes the ten acres of land conveyed as extending east from the center of Belt Line Road 781.3 feet to the northeast corner of the Gifford-Hill 33⅛ acre tract, although the distance called for in the earlier deed to Gifford-Hill was 825 feet. This discrepancy can be explained only on the hypothesis that the measurement was taken to the fence line, which, according to the evidence, was located 781.3 feet east of the center line of Belt Line Road.

This fence line, as well as the true boundary a short distance to the east, is shown on an old map used by Gifford-Hill in its gravel mining operations. A former Gifford-Hill employee testified, however, that Gif-ford-Hill was careful to manage its gravel operations so as not to interfere with the fence. In 1934 Gifford-Hill employed county surveyor Robert West to make a survey of the boundary. West found the old fence as it existed to the south of the disputed strip, and showed it on a map which he prepared and which is in evidence. This survey, according to West, was made for the purpose of determining the “agreed” line between the Gifford-Hill property and the Larkin property, clear of any encumbrances and conflicts. There is no evidence, however, of any express agreement between Gifford-Hill and the Larkins concerning the boundary.

There is a conflict in the evidence as to whether the fence in question was maintained throughout the period from 1930 to 1952, when the Larkin land was under lease to the McCoys. The jury apparently accepted Larkin’s testimony that the fence was maintained in good repair throughout this period and that it was sufficient to hold cattle. He testified that the McCoys operated a dairy farm on the west side of Belt Line Road and brought their cows daily across Belt Line and allowed them to graze both on the Larkin land and on the Gifford-Hill land to the south and west. He testified that there was a gate in the fence that could be kept closed and that the McCoys’ cows came through this gate as well as through a gate at Belt Line Road. Although it is clear that the McCoys’ cows grazed on the Gifford-Hill land as well as on the Larkin land, the jury could have drawn the inference that after Gifford-Hill conveyed the ten-acre tract to Bounds in 1938, the fence in question served to keep McCoys’ cows from entering the ten-acre tract from the east. Thus there is evidence that during this period the McCoys were occupying the disputed strip under lease from plaintiffs, along with the rest of the Larkin land, and that this occupancy was sufficiently open and notorious to give notice of the Larkins’ claim of title.

Further evidence of the open and notorious nature of the Larkins’ claim is provided by the testimony of plaintiffs witness Downs, who lived directly across the road from the north end of the strip in question. He testified that he was familiar with the location of the old fence line and that before defendant Crowley’s time, his predecessor had put some junk cars on the property immediately east of the old fence line. .Downs said that he complained to Larkin about these junk cars because it was community knowledge that the property was Larkins’.

Defendant argues that there is no evidence of a claim by plaintiffs to the strip in question because the record shows that the Larkins were occupying the strip by agreement with Gifford-Hill. Our review of the record, however, fails to show that the Lar-kins ever obtained or sought permission of Gifford-Hill or anyone else to use the disputed strip. Rather, the evidence tends to show that they continuously assumed, though mistakenly, that the land conveyed in the 1917 deed extended as far west as the fence line in question. Any evidence in the record of an “agreement” concerning the line rather tends to show that Gifford-Hill had acquiesced in this claim and treated the fence line as the boundary, although Gifford-Hill’s records show that the true boundary was further east.

Neither do we think that lack of an adverse claim is shown by Larkin’s testimony that he never had any disagreement with Gifford-Hill concerning the boundary. This testimony does not negate the Larkins’ claim of title in view of Gifford-Hill’s apparent acquiescence in the fence line as the boundary. The jury would have been justified in finding that there was no occasion for the Larkins to make any verbal claim so long as no one else was occupying or asserting any claim to the land east of the old fence line.

Acquiescence in the Larkins’ claim by adjacent owners is further shown by Lar-kin’s testimony that before this suit was filed, defendant Crowley visited him in his home in Corsicana and asked his permission to put a road along the disputed strip. According to Larkin, he did not want to “give anybody a free ride,” but advised Crowley that he would be willing to lease a little property adjacent to Crowley’s building on a yearly basis. Although Crowley’s version of this conversation is somewhat different, Larkin’s testimony indicates that at this time he was claiming title to the strip and that his claim was acknowledged by Crowley.

In short, there is evidence that the Lar-kins and their tenants maintained the fence in question for forty years, more or less, as the only visible demarcation between their 140-acre tract and the lands of Gifford-Hill, Bounds, and others on the west, that the McCoys as tenants of the Larkins used the land inside the fence for more than twenty years for grazing their dairy cattle, that there was general knowledge in the community of the Larkins’ claim to own the property to the fence line, and that the adjacent owners acquiesced in the fence line as the boundary until shortly before the filing of this suit. We conclude that this is sufficient evidence of a claim of right to support the jury’s finding of adverse possession for more than ten years. Butler v. Hanson, 455 S.W.2d 942, 945 (Tex.1970); Mixon v. Clark, 518 S.W.2d 402, 406 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). In view of this holding, we need not discuss the other contentions presented in appellant’s brief.

Affirmed.

ROBERTSON, J., not sitting.


text:
    R. L. WARREN and wife, Leta Warren, Appellants, v. H. G. DENISON, dba Denison Contractors, Appellee.
    No. 8825.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 23, 1978.
    Rehearing Denied Feb. 27, 1978.

      Garner, Vickers & Purdom, Robert E. Garner, Lubbock, for appellants.
    Bowers, Cotten & Harland, Claude W. Harland, Lubbock, for appellee.
   DODSON, Justice.

In this case the appellants are R. L. Warren and wife Leta Warren. The appellee is H. G. Denison d/b/a Denison Contractors. In the trial court Denison recovered judgment against the Warrens in the amount of $71,540.96. We reform the judgment and as reformed the same is affirmed.

The dispute arose out of a transaction, wherein the Warrens contracted with Deni-son, a building contractor, for the construction of a house on the Warrens’ property in Tahoka, Lynn County, Texas. The transaction was initiated by the parties executing written instruments. They made and entered into a contract for the construction of the house, and signed a note in payment for the construction in the original principal sum of $73,400 with interest at the rate of ten per cent per annum from maturity. The note further provided for a reasonable attorney’s fee “if this note is placed in the hands of an attorney for collection, or collected by suit.” The promissory note was secured by a mechanics and materialmans lien and a deed of trust lien on the property on which the house was to be constructed.

After Denison constructed the house, the parties were unable to consummate the transaction. The matters in controversy were unresolved by negotiation between the parties, and Denison initiated foreclosure proceedings by exercising the power of sale provided for in the deed of trust.

The Warrens brought suit against Deni-son for a declaratory judgment, seeking in part an adjudication of no “further obligation to perform any condition contained” in the construction contract, alleging that Denison had not substantially performed the same. Also, the Warrens sought various items of damages for loss of use of the property, loss of loan commitment at a more favorable interest rate, diminished market value of the property for poor workmanship, and attorney’s fees all in the total amount of $31,588.25. Further, the Warrens sought an injunction to restrain J. B. Cotten, Jr., the substitute trustee, from proceeding with foreclosure under the deed of trust.

Denison answered and filed his cross-action alleging substantial performance under the construction contract, and sought to recover from the Warrens the unpaid balance of $48,400 due on the construction contract and the promissory note, interest on that sum at the rate of ten per cent per annum from December 22, 1974, a reasonable attorney’s fee of $12,100, and an unpaid balance of $9,643.57 alleged due and owing for the reasonable value of “additions and modifications not set forth in the plans and specifications.” In his cross-action, Denison further sought damages for additional interest paid by him on his interim financing arrangement in the amount of $8,740 as of July 22, 1976, plus $14.84 per day for said interest since July 22,1976. He also sought to recover for insurance he carried on said residence from December 17, 1974, in the amount of $1,423 as of July 22, 1976, plus $2.42 per day for such insurance since July 22, 1976, utilities in the amount of $793.26, and $75,000 for “embarrassment, harrassment [sic ], loss of business opportunity and unfounded claims of structural damage and poor workmanship, which has damaged his business reputation,” and the further claim of $75,000 for exemplary or punitive damages. Denison’s prayer was for a total of “$231,099.83, plus the additional interest and insurance which has accrued since July 22, 1976 . . .his costs of court herein expended, and such other and further relief as he may show himself justly entitled, either at law or in equity.”

The case was tried before a jury. At the close of the testimony, the court submitted 31 special issues. After the jury returned its answers to the special issues, the court entered judgment in favor of Denison, for, among other things, the amount of $71,-540.96, together with ten per cent per an-num interest thereon until paid. From this judgment the Warrens appeal to this court and bring nine points of error.

In the Warrens’ first point of error they claim a fatal conflict in the jury’s answers to Special Issues Nos. 23 and 2. These special issues and their respective answers are as follows: •

SPECIAL ISSUE NO. 23
Do you find from a preponderance of the evidence that on or about February 17, 1975, H. G. Denison had made substantial compliance with the terms of the contract between the parties hereto of May 17, 1974?
Answer: “He had made substantial compliance,” or “He had not made substantial compliance.”
The jury answered: “He had made substantial compliance.”
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that the dwelling in question was not built and completed by Denison in a good and workmanlike manner, and/or of good substantial materials, and in accordance with the plans and specifications, the mechanic’s and materialman’s lien contract, and/or the construction contract agreed upon between the parties, at the time it was retaken by the Warrens?
Answer “It was” or “It was not,” as you may find.
The jury answered: “It was not.”

In Special Issue No. 23, the jury found Denison had “made substantial compliance” with the contract between the parties and, in Special Issue No. 2, the Warrens contend that the jury found: (a) that Deni-son did not build and complete the house in a “workmanlike” manner; (b) that he did not complete the house of “good substantial material”; and (c) that he did not build and complete the house “in accordance with the construction contracts.” The Warrens contend that the terms “substantial performance,” “workmanlike manner,” “good substantial material” and “in accordance with the construction contracts” as used in the charge are legally synonymous and result in a fatal conflict in the jury’s findings on such issue, which is sufficient to prevent Denison from recovering in this case under any theory alleged by him. We do not agree. We conclude there is no fatal conflict between the jury’s findings on the two issues.

The Texas courts have applied the doctrine of “substantial performance” to construction contracts since 1891. Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208 (1891). This doctrine recognizes that literal performance of each and every particular of such contracts is virtually impossible. Rather than require perfect performance of every particular, substantial performance is regarded as full performance in allowing the builder to recover on the contract. However, in such instances, the measure of recovery is the contract price less the cost of completing or repairing the building to contract specifications. Atkinson v. Jackson Bros., 270 S.W. 848 (Tex.Com.App.1925, holding approved); Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869 (1912); Perryman v. Sims, 506 S.W.2d 753 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.).

The court noted in Perryman v. Sims, supra, at page 756 as follows:

Where the jury finds substantial performance, a further finding that the work was not performed in a good and workmanlike manner does not, in our opinion, prevent a recovery on the contract. In these circumstances, the measure of damages is the contract price less the amount necessary to compensate for the deficiency.

See also, Loggins v. Gates, 301 S.W.2d 525, 528 (Tex.Civ.App.—Waco 1957, writ ref’d n. r. e.).

It is apparent that a finding that the builder did not complete the contract in a good workmanlike manner does not necessarily mean that he has not substantially performed the contract. The instances of failure to perform in a workmanlike manner are often no more than deviations from perfect compliance, which reduce the recovery on a contract otherwise substantially performed. Perryman v. Sims, supra.

The Warrens rely on Blevins v. Baker, 511 S.W.2d 375 (Tex.Civ.App.—Austin 1974, no writ) for the proposition that “substantial performance” and “good workmanlike construction” are synonymous. The case will not support such assertion. There was no issue concerning substantial performance by the contractor to the owner. That case concerned performance by a subcontractor to the general contractor. The language relied upon by the Warrens is at most dictum, not controlling here. At most, the Blevins dictum means that if a contract has not been substantially performed it cannot be workmanlike. Our case is just the opposite. As noted in Perryman v. Sims, supra, a job can be substantially performed with some breaches of workmanlike construction preventing full or perfect performance.

In this case the trial judge reconciled the jury’s findings in a reasonable manner. In reviewing his decision we are required to examine the entire verdict and to indulge every reasonable presumption in favor of the judgment that was rendered on the verdict. Godde v. Wood, 509 S.W.2d 435, 442 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

The jury found against the Warrens and in favor of Denison on Special Issues Nos. 3, 11, 13 and 17. In Special Issue No. 11, the jury answered “we do not” to the following inquiry:

Do you find from a preponderance of the evidence that the dwelling in question was not constructed in a good and workmanlike manner, or that inferior materials and/or equipment were used, in such a manner which because of their nature cannot be reasonably repaired or altered, and which results in a diminishment of the market value of the dwelling in question, exclusive of any defects which are capable of being repaired?

In Special Issue No. 13 the jury found that Denison had not

. engaged in false, misleading, or deceptive acts or practices in his conduct in the construction of the residence in question in any one of the following particulars
(a) Refuse to complete the contract timely;
(b) Refuse to deliver possession;
(c) Made excessive claims or demands;
(d) Installed inferior or substandard equipment or materials;
(e) Permitted inferior and poor workmanship to be used in the residence in question;
(f) Refused to correct, replace and/or repair obvious known defects and failures;
(g) Unreasonably threatened foreclosure;
(h) Unreasonably attempted foreclosure;
(i) Unreasonably withheld execution of necessary instruments to accomplish closing for the purpose of causing fear, anxiety, and/or apprehension to the Warrens;
(j)Has unreasonably conducted a course of criticism, abusiveness, and harshness towards the Plaintiffs or either of them, so as to embarrass, coerce and induce Plaintiffs to comply with any unreasonable demands of Denison, if any.

In Special Issue No. 3 the jury found that at the time the Warrens took possession of the dwelling in question it was fit for the ordinary purposes for which such dwelling was to be used. And in Special Issue No. 17 the jury found that the dwelling as constructed had a market value of $5,718.50 greater than it would have had if it had been built according to the plans and specifications.

The jury found in Special Issue No. 7 that the dwelling in question was not free from defects in workmanship at the time the Warrens took possession. However, the jury did find that any defects in the dwelling could be reasonably repaired and made to conform to either the express or implied warranties for $1,961.50 and that $200 was a reasonable and necessary cost for the Warrens to obtain inspections and estimates for repairs of the defects. Thus, the Warrens were entitled to have this total of $2,161.50 deducted from the note and contract balance.

The Warrens’ contention under this point of error cannot be sustained for yet another reason.

Special Issue No. 2 was an erroneous submission of the matters therein inquired of in the conjunctive and disjunctive (and/or). In Parker v. Keyser, 540 S.W.2d 827, 831 (Tex.Civ.App.—Corpus Christi 1976, no writ) the court held that such a submission violates Rule 277, T.R.C.P. In essence, the rule only authorizes disjunctive submission “this or that” when the two issues are mutually exclusive. Rule 277, T.R.C.P. provides in part:

The court may submit an issue disjunc-tively where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exist. For example, the court may, in a workman’s compensation ease, submit in one question whether the injured employee was permanently or only temporarily disabled.

(Emphasis added). Here, as in Parker, the choices are not mutually exclusive. The very use of and/or shows that the choices do not exclude each other because the jury is given the opportunity to find that both occurred, not just that one or the other occurred. As the court in Parker noted: “The specific authorization by Rule 277, T.R.C.P. of disjunctive submission extends only to the presentation of true opposites, that is, to inferential-rebuttal situations and to alternative grounds of recovery which are factually inconsistent.” Id. at 831.

Denison properly and timely objected to the erroneous submission in the trial court and brings such objection forward to this court. The Warrens cannot now be heard to complain of an alleged fatal conflict supposedly created by their erroneous issue. The Warrens’ first point of error is overruled.

In Point of Error No. 2 the Warrens say that interest, attorney’s fees, and insurance cannot be awarded because Denison did not perform a condition precedent to receiving payment, i. e., he did not build according to plans and specifications. Appellants cite two cases, Ryan v. Thurmond, 481 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.) and El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922 (Tex.Civ.App.—1910, writ ref’d), saying that stated conditions must be performed prior to recovery of payment.

This argument is contra to the doctrine of substantial performance. As previously discussed, substantial performance was created precisely to satisfy conditions precedent by stating that substantial equals full performance of the contract and all conditions. See 10 Tex.Jur.2d Building Contracts § 21 (1959) at 25; Linch v. Paris Lumber & Grain Elevator Co., supra; Perryman v. Sims, supra; Hou-Tex Construction Co. v. Williams, 417 S.W.2d 597 (Tex. Civ.App.—Waco 1967, writ ref’d n. r. e.).

Also, as pointed out above, Special Issue No. 2 was an erroneous submission, properly objected to by Denison. Therefore, any claimed error thereunder is waived and the issue and the answer thereto should be disregarded. The Warrens’ second point of error is overruled.

In Point of Error No. 3, the Warrens contend that the trial court erred in awarding attorney’s fees of $9,000 and interest damages of $12,816 because Denison failed to minimize these damages by refusing their offer to settle matters not in the controversy in May of 1975. We do not agree. The Warrens have the burden of showing a valid, legal and sufficient unconditional tender. Rozelle v. First National Bank in Dallas, 535 S.W.2d 768 (Tex.Civ.App.— Waco 1976, writ ref’d n. r. e.). In Baucum v. Great American Insurance Company of New York, 370 S.W.2d 863, 866 (Tex.1963) our Supreme Court set forth the elements of a valid tender as follows:

A tender is an unconditional offer by a debtor or obligor to pay another, in current coin of the realm, a sum not less in amount than that due on a specified debt or obligation. ... A valid and legal tender of money consists of the actual production of the funds and offer to pay the debt involved. The tenderer must relinquish possession of it for a sufficient time and under such circumstances as to enable the person to whom it is tendered, without special effort on his part, to acquire its possession.

The Warrens failed to discharge this burden. Under the procedural circumstances in this case, we must conclude that any issue on tender and failure to minimize damage was waived by the Warrens since they failed to request and obtain a favorable finding by the jury on these matters. Rule 279, T.R.C.P. The third point of error is overruled.

In Point of Error No. 4, the Warrens contend, among other things, that the court erred in awarding $12,816 as interest damages because “(b) there is insufficient evidence to support an award in such an amount” and “(f) the amount claimed by the Builder as extras was unliquidated and unascertained until the verdict was returned by the jury.” The Warrens assume that the judgment entered by the trial court included the $12,816 figure found by the jury in response to Special Issue No. 25 determining the amount of interest paid by Denison on his interim financing arrangement since February 17, 1975. Denison asserts the judgment includes only the amount of $11,349.36 as interest, but confesses his inability to determine how the trial court arrived at such figure. We do not agree that either figure is correct and further conclude that this court has authority to reform the judgment entered by the trial court to properly reflect the correct amount of interest which should have been included in the same. Rule 434, T.R.C.P.

It is undisputed by the parties and the record reflects that the Warrens executed and delivered to Denison a promissory note in the original principal sum of $73,400 bearing no interest from date (May 22, 1974) to maturity thereof (on or before seven months after date); that such note was given “in payment for the construction of certain improvements upon that certain lot or parcel of land situated in Lynn County, Texas . . . ” and that such note further provided that “[a]ll past due principal on this note shall bear interest at the rate of ten per cent per annum.” It is further undisputed that the Warrens paid Denison the sum of $25,000 on the note and contract during the course of the construction of the house.

The jury found that Denison had substantially complied with the construction contract on or about February 17, 1975, that repairs in the amount of $1,961.50 were required to conform the dwelling to any express or implied warranties made by Den-ison, and that the sum of $200 was a reasonable inspection fee to ascertain the necessary repairs.

The finding of substantial performance is sufficient to predicate a recovery by Denison for the unpaid principal balance on the note, plus interest and a reasonable attorney’s fee as provided therein. However, such finding will not support award of $12,816 or a lesser amount paid by Denison for interest on his interim financing arrangement from February 17,1975. By the express terms of the promissory note, the parties specifically contemplated and agreed only on interest at the rate of ten per cent per annum on the unpaid balance on the note from maturity until paid. Den-ison’s right to recover any amount of so-called prejudgment interest is limited to the interest provided for in the note. Under the substantial performance doctrine the note did not mature until Denison had substantially complied with the construction agreement. Special Issue No. 23 and the jury’s answer determined this date to be February 17, 1975. Thus, as a matter of law, Denison is entitled to recover interest only on the unpaid note balance of $46,-238.50 from February 17, 1975, until paid. The Warrens’ Point of Error 4(b) is sustained.

By any apparent method of calculation, the judgment amount of $71,540.96 contains interest in excess of ten per cent per annum on $46,238.50 from February 17, 1975, to November 8, 1976 (the date of the judgment in the trial court).

Likewise, the promissory note does not provide for interest on the so-called extras or “additions or modifications not set forth in the plans and specifications” which are mentioned in the construction contract dated May 17, 1974. In regard to such matters, the contract only provides as follows:

It is understood and agreed that any additions or modifications not set forth in the plans and specifications as agreed upon between the parties shall be paid for by Owners upon completion of the construction, thereby increasing the consideration accordingly.

(Emphasis added) This provision is no more than an agreement to pay for such items over and above the $73,400 amount set forth in the contract and promissory note. The contract does not set forth any method for “ascertaining the sum payable” for these items. See Article 5069-1.03 Y.A. C.S.

In response to Special Issue No. 22, the jury determined that Denison was entitled to $5,718.70 for the additions and modifications. The undisputed evidence shows that the Warrens had paid during the course of construction of the dwelling the amount of $2,500 to Denison on such items. The unpaid balance of $3,218.70 is and should have been included in the total judgment amount; however, the amount should bear interest at the rate of nine per cent per annum from the date of judgment (November 8, 1976) until paid. See Article 5069-1.05 V.A.C.S. (Supp.1976-77). The judgment of the trial court provided that the total amount of $71,540.96 bear interest at the rate of ten per cent per annum until paid. We sustain the Warrens’ contention in subpart (f) of Point of Error No. 4 and the judgment is corrected and reformed to reflect interest on the $3,218.70 amount for extras at the rate of nine per cent per annum from November 8, 1976, until paid.

The Warrens in Point of Error No. 5 complain that “[t]he District Court erred in awarding Builder $9,000.00 in attorney’s fees because (a) Builder’s claims are for breach of contract and not within the scope of article 2226; (b) Builder’s claims are for breach of contract and not for collection of a note; and (c) there is no evidence or insufficient evidence to support the award of $9,000.00.”

As pointed out previously, Denison’s cross action sought to recover the unpaid balance on the promissory note, plus interest and a reasonable attorney’s fee as therein provided. The promissory note was given in payment of the construction contract. Denison had to show that the dwelling substantially complied with the plans and specifications of the construction contract. The thrust of Denison’s action evolved from his showing substantial performance and defeating the Warrens’ allegations of non-performance on the matters inquired into in Special Issues Nos. 11, 13, and 17 and other related matters concerning the house construction inquired into in Special Issues Nos. 1, 3, 4, 5, 7, 8, 9, 10, 12, 14, 16, and 18. The jury answered all of these issues favorable to Denison.

The trial of the case consumed approximately nine days in the trial court. The controversy covered approximately 20 months up to the time of the trial. In this time, three different court hearings were held, the trial court’s ruling on a plea of privilege was taken on appeal to this court, and seventeen days were devoted to preparation for trial. All of these matters were conducted by Denison’s same attorney, Mr. Harland, who appeared herein, and who also testified at the trial as follows:

It is my testimony, and I will hereby attest that I have spent just as much time on this case, in the eighteen months, or since February of 1975, as I have spent in the last twenty-one days in preparation for this trial.

Mr. Charles Galey, an experienced attorney and partner in Brock, Waters and Galey, Attorneys, of Lubbock, Texas testified that a reasonable attorney’s fee based on time and effort was $50 per hour and that such per hour rate applied to 272 hours worked constituted $13,600. Mr. Harland’s testimony justified a greater number of hours than used by Mr. Galey in his computation.

All of these facts were before the jury, who had an opportunity to review the full matter in court and hear all of the testimony concerning activities between the parties leading up to the lawsuit. We conclude that the jury’s finding of a reasonable fee in the amount of $9,000 is amply supported by more than sufficient evidence.

The Warrens contend that the award of $9,000 attorney’s fees should be reversed because Denison’s claims are for a breach of contract and not for collection under the promissory note. We do not agree. As previously stated, Denison’s claims and recovery for the unpaid balance on the note and the so-called extras grew out of the written contract between the parties. The promissory note was given “in payment for the construction” of the dwelling. The Warrens’ failure to pay the balance due and owing on the note does not convert Deni-son’s cross-action into a breach of contract case. As previously stated, Denison’s substantial performance of the contract satisfied the conditions precedent to recovery thereunder. Denison pleaded and proved the note.

Also, the Warrens assert in their brief under this point that a “reasonable attorney’s fee” as provided in the note is limited to “ten per cent on the amount of principal and interest then due” as set forth in the mechanics and materialmans lien securing the note. We do not agree. It is undisputed and the parties agreed in oral argument before this court that the written instruments, in this matter, formed parts of a single transaction.

In general, where there is difference between the terms of the note and of the mortgage or lien given to secure it, the terms of the note control on matters such as attorney’s fees. 39 Tex.Jur.2d Mortgages and Trust Deeds § 24 (1976). Here the language employed in the lien is no more than an inaccurate description of the note to which it makes reference.

We conclude that Denison’s recovery was under the note and the evidence is more than sufficient to support the award by the jury of $9,000 as attorney’s fees. The Warrens’ fifth point of error is overruled.

In Point of Error No. 8, the Warrens contend that “[t]he District Court erred in awarding interest damages on attorney’s fees prior to judgment.” Denison is not entitled to recover prejudgment interest on the amount of attorney’s fees. The note does not provide for interest at the ten per cent rate either before or after judgment. The judgment is reformed to correctly reflect interest on such amount from the date of judgment (November 8, 1976) until paid. To this extent the eighth point of error is sustained.

In Point of Error No. 6, the Warrens challenge the sufficiency of the evidence to support the award of $1,534.40 to Denison for the cost of insurance premiums paid by him. The insurance on the dwelling contemplated and agreed to by the parties is expressed in the mechanics and material-mans lien contract. This agreement provided that the Warrens were to insure the house for $73,400 with an insurance company approved by Denison. Denison was to be named as loss-payee and was entitled to keep the policy. Denison had the burden of establishing a breach, if any, of these provisions of the agreement and his damages, if any, sustained thereby. Blackstock v. Gribble, 312 S.W.2d 289 (Tex.Civ.App.— Eastland 1958, writ ref’d n. r. e.). The jury’s finding of substantial compliance under the construction contract dated May 17, 1974, does not establish a breach of the insurance provisions in the mechanics and material-mans lien contract, and Denison directs us to no evidence to establish such a breach.

Also, there is no evidence that Den-ison was required to insure the house as natural consequence of any breach by the Warrens. By the terms of the insurance provisions in the lien above set forth, Deni-son was in a position to know the status of insurance policies on the house. Yet he now argues that it was reasonable to assume that the house policy did not carry him as loss-payee after July 24, 1975 when the Warrens moved in. We cannot support a finding with such speculation. First, Denison was in a position to know whether or not the Warrens complied with this part of the mechanics and materialmans lien. If they breached, then he should have shown it. Second, Special Issue No. 26 inquired of Denison’s obligation to insure the house in February, not the following July. In short, there is no evidence to support this finding.

The Warrens’ sixth point of error is sustained and the judgment is reformed to exclude the award of $1,534.40 as damages for the payment of insurance premiums on the dwelling by Denison since February 17, 1975.

In Point of Error No. 7, the Warrens complain that:

The District Court erred in failing to award plaintiff Owners $4,320.00 for additional interest expense found by the jury in Special Issue No. 19, because the expense was a direct result of the defendant Builder’s breach of contract as found by the jury in Special Issue No. 2.

We do not agree. As previously stated, Special Issue No. 2 was an erroneous submission and the jury’s answer thereto must be disregarded. Also, the jury answered Special Issues Nos. 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, and 18 against the Warrens and favorable to Denison. The seventh point of error is overruled.

In Point of Error No. 9, the Warrens complain that “[t]he trial court erred in allowing pre-judgment interest on damages recovered on quantum meruit or on substantial performance of the contract because where a judgment is based on quantum meruit or on substantial performance of a contract, interest is allowed only from the date of judgment.”

It is the settled law of this state that the right to recover in quantum meruit is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965). If a valid express contract covering the subject matter exists, then there can be no recovery upon a contract implied by law. Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex.1964).

Here the construction of the dwelling was provided for by a contract between the parties; the note was given in payment of the construction of the dwelling described in the contract. Denison’s recovery was under the note. His interest recovery is conformed to the provision of the note. The ninth point of error is otherwise overruled.

In summary, for the reasons herein stated, we sustain the Warrens’ Sub-points of Error No. 4(b) and 4(f) and Point of Error No. 8; however, all other points of error and sub-points of error are hereby overruled. Accordingly, the judgment of the trial court is corrected and reformed to provide, in lieu of the monetary recovery stated therein, that H. G. Denison, d/b/a Denison Contractors, have and recover of and from R. L. Warren and wife, Leta Warren, the sum of $46,238.50 with interest thereon at the rate of ten per cent per annum from February 17, 1975, until paid and the further sum of $12,218.70 with interest thereon at the rate of nine per cent per annum from November 8, 1976, until paid, and as reformed the judgment is in all other things affirmed.

ON MOTION FOR REHEARING

After reviewing Appellant’s Motion for Rehearing and accompanying brief, we have determined that our opinion, as previously issued, correctly states the applicable law concerning appellant’s first point of error. However, the Warrens also complain that costs were improperly taxed against them under Rule 435, Texas Rules of Civil Procedure. The judgment against the Warrens was reduced approximately 6 percent. Accordingly, costs are to be taxed 94 percent to the Warrens and 6 percent to appel-lee Denison. To this extent, appellant’s second point of error is sustained; otherwise, it is overruled. Except to this extent, we adhere to our former disposition of the case and Appellant’s Motion for Rehearing is overruled.


author: EVANS, Justice.

text:
    Annie M. KING et al., Appellants, v. INWOOD NORTH ASSOCIATES, Appellee.
    No. 17010.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.

      Clark G. Thompson, Houston, for appellants.
    Bracewell & Patterson, Ronald R. Scott, Houston, for appellee.
   EVANS, Justice.

In this trespass to try title action, the sole issue was whether the plaintiffs held a limitation title to the land in controversy under the 10 year statute of limitation. Article 5510, Tex.Rev.Civ.Stat.Ann. Upon the jury’s finding that the plaintiff had acquired title by peaceable and adverse possession for the requisite period of time, the trial court entered judgment for the plaintiff.

The land in controversy is a tract of 13.014 acres of land located as shown below. The defendants own the record title to the land indicated as the MeHard-King 123 acre tract, which includes the 13.014 acres in dispute. The plaintiff owns the record title to the Broh 672.467 acre tract, which is located immediately east of the land in controversy. The west fenceline of the Broh Estate enclosure, which contains the land in controversy, is shown between the points D and F.

In response to the one special issue submitted, the jury found that the Broh Estate, under which the plaintiff claims title, in person or through its tenants, “held peaceable and adverse possession of the 13.-014 acres in controversy, cultivating, using, or enjoying the same” for a period of 10 consecutive years prior to October 4, 1974.

In their first four points of error, the appellants contend that the trial court erred in admitting the testimony of Ford Hubbard, Sr. and Herman Liere, who held leases from the Broh Estate, because the lease agreements did not include the land in controversy.

In 1944, Mr. Ford Hubbard, Sr. was employed as the agent of the Broh Estate to look after the Broh tract and to arrange for the leasing of the land. Mr. Hubbard testified that when he first became familiar with the land, there were fences on all lines and on both sides of West Montgomery Road where it crossed the property. The fences formed a complete enclosure and included the 13 acre tract in controversy. It was Mr. Hubbard’s belief that these fences marked the boundaries of the Broh tract, and as agent for the Broh Estate, he claimed all lands within the fenced enclosure, including the 13 acre tract in dispute. From 1944 until 1953, the property was leased by the Broh Estate to a Mr. War.-necke for grazing purposes. In 1953, the Broh Estate was leased to Mr. Ford Hubbard, Jr., for agricultural purposes, and he subleased the land to Mr. Herman Liere for rice farming. The Hubbard lease agreement describes the leased premises by metes and bounds, locating the west line of the leasehold by a call for distance and a call for adjoinder with a tract off the west end of the survey. The parties are in agreement that the legal description in the plaintiff’s deeds and leases do not include the 13 acre tract within their boundaries and that the dotted line (A-E) constitutes the western boundary of the premises described in the written instruments.

Mr. Liere testified that at the time he leased the land from the Broh Estate, he was told that the leased premises included everything to the west fence line, and he, therefore, made use of the 13.014 acres in dispute because he understood that it was included in his lease. Mr. Liere used the enclosure for rice farming and cattle grazing until 1964, and from then until 1968, he and his son-in-law, Alvin Rollins, operated the land together. Thereafter, Rollins leased the land from the Brohs until 1973.

It is the appellant’s contention that the possession, occupancy and use of the tenants of the Broh Estate cannot be used as basis for the plaintiff’s limitation claim because the lease descriptions do not include within their boundaries the tract of land in controversy. Arguing the applicability of the rule that a landowner in possession through a tenant is deemed to have possession only to the extent of the tenant’s right of possession under the terms of the lease agreement, appellant cites as controlling authority: Williams v. Fuerstenberg, 23 S.W.2d 305, 306 (Tex.Com.App.1930, holding approved); Niendorff v. Wood, 149 S.W.2d 161, 164 (Tex.Civ.App.—Amarillo 1941, writ ref’d), and Brownlee v. Landers, 166 S.W.2d 734, 737 (Tex.Civ.App.—Amarillo 1942, no writ).

Each of the authorities relied upon by the appellant is a case where the evidence either indicated that the landlord had not authorized the tenant to occupy lands other than those described in the lease or where proof of such authority was lacking. In the case at bar, there is affirmative evidence that the parties believed and claimed the west boundary line of the leased premises to be the fence line running along the west line of the tract in controversy. Where an understanding exists between the landlord and tenant that the tenant will hold certain premises under the lease arrangement, the tenant’s occupancy of such premises will constitute the landlord’s possession, even though such premises are not covered by the legal description in the written lease. Sanders v. Worthington, 382 S.W.2d 910 (Tex.1964). The testimony of Mr. Ford Hubbard, Sr., as the agent and as a tenant of the Brohs, and the testimony of the Brohs’ tenant, Mr. Liere, was admissible to establish the extent of the parties’ understanding as to the boundaries of the lands which were leased. The appellant’s first three points of error are overruled.

The appellant’s fourth, fifth and sixth points of error contend that the trial court erred in not submitting special issues with respect to the plaintiff’s intent to claim the land in controversy and regarding the defendant’s notice of such claim. Although appellant’s brief contains no argument with respect to these points, there does appear in the transcript a refused special issue concerning the question of notice.

The trial court’s submitted issue contained all of the elements necessary to the establishment of title by peaceable and adverse possession under the 10 year statute of limitations, together with adequate explanatory instructions. Viduarri v. Bruni, 179 S.W.2d 818 (Tex.Civ.App.—San Antonio 1944, writ ref’d w. o. m.). The court did not err in refusing to submit the special issue requested by the defendants because the requested issue was merely a different shade or phase of the issue submitted. Beauchamp v. Beauchamp, 239 S.W.2d 191 (Tex.Civ.App.—Eastland 1951, writ ref’d n. r. e.); Sterling v. Tarvin, 456 S.W.2d 529 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.).

In their remaining points of error, seven through eleven, the appellants raise “no evidence” questions, arguing that the jury’s finding is without evidentiary support.

The record shows that from the year 1944 through 1973, the Broh Estate, through its agent and tenants, made continuous use of the land in controversy for agricultural and grazing purposes, using the land in dispute as a unit with the other land within its fenced enclosure. Although the evidence does not indicate who first constructed the west fence of the Broh enclosure, it is undisputed that tenants of the Broh Estate furnished the materials necessary to the repair of the fence to the lessee of the adjoining land who provided the labor. Mr. Liere testified that he grew rice on the enclosed land, including the tract in dispute, every other year for 8 years, and that during the alternate years, he grazed cattle on the land. He maintained a road and an irrigation ditch along the west line of the property and grew rice within 4 feet of the west fence line. In 1953, Liere drilled an irrigation well on the 13 acre tract and used the well to water his rice crops. There was testimony that the fences around the Broh tract were kept in good repair during the period of time in question and that the property was used each and every year for raising crops or grazing cattle. The owners of the land to the west of the Broh fence never made any claim to the land east of the fence, and Mr. Liere, acting upon the Brohs’ instructions, placed “No Trespassing” signs around the perimeters of the Broh property, especially up in the northwest corner. Mrs. Broh made inspections of the land just about every year, and if she noticed that any of the “No Trespassing” signs were missing, she would call the matter to the attention of her tenant.

It was for the jury to determine whether the plaintiffs proved the factual elements of a limitation title under the 10 year statute. Nelson v. Morris, 227 S.W.2d 586 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.). The fact that the Brohs were unaware of the exact location of their boundary lines and mistakenly believed their boundaries to include the land in controversy did not defeat their claim of having acquired title to the land by peaceable and adverse possession. Calfee v. Duke, 544 S.W.2d 640 (Tex.1976). There is evidence that the land within the Brohs’ fenced enclosure was used by the Brohs and their tenants as a unit for 10 or more consecutive years. The fence along the west line of the Brohs’ enclosure was not merely a “casual” fence under the holding of Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954), even though the evidence did not show who had constructed the fence. Butler v. Hanson, 455 S.W.2d 942, 945 (Tex.1970). The evidence supports the jury’s finding that the Brohs held peaceable and adverse possession of the land in dispute under a claim of right for the requisite period of time.

The trial court’s judgment is affirmed.


author: AKIN, Justice.

text:
    Virginia Bonita WATTS, Appellant, v. Richard George WATTS, Appellee.
    No. 19390.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 31, 1978.
    Rehearing Denied March 15, 1978.

      J. Kent Newsom, Pelletier, Dickens & Newsom, Dallas, for appellant.
    Claude R. Wilson, Jr., Golden, Potts, Boeckman & Wilson, Dallas, for appellee.
   AKIN, Justice.

This appeal by Virginia Watts is from an order granting Richard Watts’ motion to change custody of their two children from the mother to the father. The trial court granted the mother visitation rights with the children on alternative weekends provided, however, that she (1) marry the man with whom she had been living or severing her relationship with him, and (2) take the children to Sunday school and to a church of her choice when she had them. The principal question is whether there was sufficient evidence to support the trial court’s finding of a material and substantial change of circumstances between the prior order granting the divorce and the order changing custody with respect to the mother and the children as pleaded by Mr. Watts. We hold that the evidence is insufficient to support a finding of a material change of circumstances. Accordingly, we reverse and remand. Additionally, we hold that the condition precedent to visitation requiring the mother to take the children to church is a violation of Art. I, § 6 of the Texas Constitution.

Essentially, the facts are undisputed. The parties were divorced in March of 1975. In that decree, the mother was named managing conservator of the children. Two years later, the father filed this motion requesting that he be named managing conservator. In support of his motion, he alleged that the circumstances of the mother and the children had materially and substantially changed since the divorce decree and that the best interest of the children would be served by changing custody.

A suit for modification of a prior order is authorized by Tex.Fam.Code Ann. § 14.08 (Vernon Supp.1976) which provides in part:

(c) After a hearing, the court may modify an order or portion of a decree that:
(1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child . [Emphasis added.]

Another criterion required for a change of custody is set forth in the Tex.Fam.Code Ann. § 14.07 (Vernon 1975) which provides that the best interest of the child shall be a primary consideration. The threshold inquiry is, however, whether there is evidence of a material change of circumstances with respect to the mother and the children between the time of the prior order and the institution of this action. To show such a change, evidence must be tendered showing the circumstances at the time of the prior order and the circumstances existing at the time of the hearing on the motion to modify. Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.1966); Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex.1969); Labowitz v. Labowitz, 542 S.W.2d 922 (Tex.Civ.App.—Dallas 1976, no writ); In the Interest of Anglin, 542 S.W.2d 927, 932 (Tex.Civ.App.—Dallas 1976, no writ). Absent evidence of such a change of circumstances, the court does not reach the question of what is in the best interest of the children.

The requirement of a change of circumstances is predicated upon the doctrine of res judicata. The policy behind this requirement is to prevent constant litigation with respect to the children, which, of course, would not be in the children’s best interest. The burden of pleading and proving a material change of circumstances is on the non-custodial parent. Wilkinson v. Evans, 515 S.W.2d 734, 738 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.); Becerra v. Garibaldo, 526 S.W.2d 780 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

The evidence shows that three months prior to the divorce, Tom Black moved in with Mrs. Watts. The father knew that this situation existed when he agreed that the mother be appointed managing conservator, but testified that he only did so because she promised to marry Black as soon as possible after the divorce. Although the fact that the mother was living with a man to whom she was not married is likely against the best interest of the children, this circumstance existed at the time of the divorce as well as at the time of the hearing on the motion to modify. Thus, there was no change with respect to the circumstances of the mother. Essentially, they were bad then and are no worse now, insofar as the present record shows.

With respect to a change of circumstances of the children, the only evidence introduced pertained to the circumstances at the time of the hearing. No evidence was introduced showing the circumstances of the children at the time of divorce. Consequently, without such evidence, a court cannot find that there had been a material change of circumstances with respect to the children so as to justify changing custody. Bergerac v. Maloney, 556 S.W.2d 586 (Tex.Civ.App.—Dallas 1977, writ dism’d w.o.j.). Consequently, we hold that the trial court abused its discretion in ordering the change of custody.

We remand, rather than render, in the interest of justice. Tex.R.Civ.P. 434; Meador v. Carnes, 533 S.W.2d 365, 371 (Tex. Civ.App.—Dallas 1976, writ ref’d n. r. e.). In the first place, if the circumstances of the children at the time of the divorce are shown, it may, indeed, appear that their circumstances have changed for the worse. Moreover, the evidence shows a substantial change in circumstances of the father which was not pleaded, but which may be sufficient to comply with § 14.08(c)(1) of the Family Code. Prior to its amendment in 1975, this section required only a substantial change in circumstances of the child. However, in construing this section, our courts considered a change of circumstances as to the custodial parent as well as the child, but refused to consider a change with respect to the non-custodial parent. E. g., In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). In our view the legislature when it amended this section to read “child or parent” intended some change and that change was to include the non-custodial, as well as the custodial parent, since the word “parent” is not qualified by an adjective. See Thompson v. Uzzell, 541 S.W.2d 499, 501 (Tex.Civ.App.—Tyler 1976, no writ).

The question of whether there had been a material change in the father’s circumstances was not tried by implied consent because the mother’s attorney moved, at the close of the father’s case that the father’s motion be denied on the ground that the father had not shown, as pleaded, a change of circumstances as to either the mother or the children. Furthermore, we cannot say that this issue was tried by implied consent by lack of objection to the evidence of the father’s circumstances since this evidence went also to the issue of the best interest of the children. The doctrine of implied consent applies only where it appears from the record that the issue was actually tried, although not pleaded. Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919, 922 (1948).

Since we are remanding, it is necessary to address appellant’s point of error attacking that portion of the court’s order which conditioned the mother’s right0 of weekend visitation on taking the children to Sunday school and to church. Appellant argues that in this respect, the trial court abused its discretion. We agree. Such an order by the trial court violates Art. I, § 6 of the Texas Constitution with respect to separation of church and state. Article I, § 6 provides:

“No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.”

In Salvaggio v. Barnett, 248 S.W.2d 244. (Tex.Civ.App.— Galveston 1952, writ ref’d n. r. e.), cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952), the court stated, in awarding custody of a child, that a trial court exceeds its power when it prefers the religious view or teachings of either parent. The father argues that the trial court’s decision does not deny nor infringe on any constitutional right of the mother since she is permitted to take them to any church of her choice and she is not herself required to attend. Although this contention may be correct, we are concerned also with the constitutional rights of the children. It is commendable that the trial court wishes to insure proper religious training for the children, but it is conceivable that the children may decide they do not wish to receive religious training. This is a matter which the court should not attempt to control other than by its award of managing and possessory conservatorship. Any order specifically requiring religious observance or religious instruction is contrary to the basic principle embodied in Art. I, § 6, that religion is a matter of private conscience with which the state, by its courts or otherwise, is forbidden to interfere.

Reversed and remanded.

      . On oral argument counsel advised this cor that Mrs. Watts and Black are now


author: MURRAY, Justice.

text:
    Ex parte Susan MINKS, Relator.
    No. 16012.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 1, 1978.
    J. C. Grossenbacher, Jr., San Antonio, for relator.
    Cynthia Day King, San Antonio, for respondent.
   MURRAY, Justice.

This is an original habeas corpus proceeding. Relator, Edith P. Minks, had been adjudged in contempt by the 166th District Court of Bexar County for failure to deliver her two children, Susan Minks and Troy Minks, into the possession of James F. Minks, father of the two children and the ex-husband of relator.

Edith P. Minks and James F. Minks were divorced in the State of Kentucky, and Edith P. Minks was granted custody of their two children. On December 6, 1977, an order was entered by the Court in Kentucky changing the custody of the two children from Edith P. Minks and granting the custody to James F. Minks. On January 16, 1978, James F. Minks filed his application for writ of habeas corpus alleging the children were illegally restrained by the said Edith P. Minks and prayed that the children be returned to James F. Minks. On January 17, 1978, a hearing was held on the application of James F. Minks on the writ of habeas corpus. At this hearing the relator, Edith P. Minks, was ordered by the court to deliver such children to applicant forthwith. Although no written affidavit of contempt was filed, the court held a contempt hearing on the afternoon of the same day, January 17, 1978, and adjudged relator, Edith P. Minks, in contempt of court for violation of court order and the court found that:

Respondent, Edith P. Minks, has failed and refused to obey the Order of this Court in that Respondent refused to deliver or cause to be delivered the children, Susan Minks and Troy Minks, to the 150th Judicial District Court in Bexar County Texas into the possession of James F. Minks.

The contempt order provided that relator, Edith P. Minks, be committed to jail until such time as she delivers or causes to be delivered the children, Susan Minks and Troy Minks, into the possession of James F. Minks. Relator has filed a writ of habeas corpus in this Court and was released on bail by order of this Court, and we are now concerned only with the power of the trial court to order the indefinite commitment of relator on January 17, 1978, until she delivers the children to the possession of James F. Minks.

An original habeas corpus proceeding in this Court is a collateral attack on the contempt decree. However, we treat the contempt order as void if the evidence offered at the hearing conclusively establishes that at the time of the contempt hearing relator did not have the power to deliver the children forthwith. Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956). She must be able to perform the order of the Court, for if her inability is conclusively shown, the trial court has no power to order the coercive imprisonment. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948).

The undisputed testimony of the relator at the hearing was to the effect that two days before the writ of habeas corpus was filed she had sent the two children to Florida to visit relatives. She stated in open court that she was willing to turn the children over to the father as soon as possible.

At the close of the hearing on the morning of January 17, 1978, relator testified in part as follows:

THE COURT: Ms. Minks do you understand that I am ordering you to deliver those two children to the father?
MS. MINKS: Yes, I do.
THE COURT: And is there any doubt in your mind about obeying this Court’s order?
MS. MINKS: No there is no doubt.
THE COURT: And it is not going to be necessary for a Deputy Sheriff to come for you, I hope?
MS. MINKS: No it won’t be necessary. * * * * *
THE COURT: We will stand in recess.
* sjc * ⅜ ⅜: ⅜

On the orders of the court relator was in the custody of the bailiff during the recess. When the hearing was resumed in the afternoon the testimony followed in part:

THE COURT: Ms. Minks, do you desire to tell this Court where these children are?
MS. MINKS: I do not have the children.
THE COURT: My question is: Where are they?
Ms. Minks: They are in Fort Myers.
THE COURT: And they are there in whose custody and under what circumstances?
MS. MINKS: They are with my Aunt.
THE COURT: When did you send them there?
MS. MINKS: Three days ago. . .
THE COURT: How long is it going to take you, if you are inclined to do it, to get those children back here to San Antonio?
MS. MINKS: It depends on when I can get them back here, as far as schedule— plane schedules and so on. I would certainly say not before Friday.
THE COURT: I think it can be done either some time tonight or tomorrow. Now, if you are willing to do that, I will give you the opportunity right now to make whatever contacts are necessary in order to make those arrangements.
(Whereupon, at the conclusion of a recess, the following proceedings were had before the Court:)
THE COURT: Ms. Minks, I think, or Ms. Heren as the case may be, I have given you an opportunity — you indicated that the children were in Florida — to make contact with their Aunt to whom you sent—
MS. MINKS: (Interjecting) Yes.
THE COURT: (Continuing) — the children. You haven’t been able to make contact; is that right?
MS. MINKS: No, sir.
THE COURT: So I presume then that your mother or someone else in your behalf is going to make contact and get those children on the plane as soon as possible.
MS. MINKS: Yes. . . .
THE COURT: This Court is of the opinion that those children were sent to Florida in an attempt to defeat the jurisdiction of this Court.
MS. MINKS: I didn’t know this was coming up.
THE COURT: You told me they were sent there when — two or three days ago?
MS. MINKS: Three days ago.
THE COURT: And under the existing circumstances, this Court adjudges you in contempt and orders you committed to the Bexar County Jail until you purge yourself of the contempt by either delivering the children, Troy and Susan, or causing the children to be delivered to their father, James F. Minks, here at this Courtroom.

We hold that the above testimony of relator is clear and positive and there are no circumstances in evidence tending to discredit or impeach it. The record conclusively establishes that at the time of the contempt hearing relator did not have the power to deliver the children forthwith.

Relator is ordered discharged.