author: HICKMAN, C. J. FUNDERBURK, J. HICKMAN, C. J.

text:
    JONES et ux. v. BEDFORD et al.
    No. 961.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 23, 1932.
    On Rehearing Dec. 23, 1932.
    Further Rehearing Denied Jan. 20, 1933.
    Owen & Owen, of Eastland, for appellants.
    Conner & McRae, of Eastland, for appel-lees.
   HICKMAN, C. J.

Appellees W. C. Bedford and daughter, Bettie B. Vestal, sued appellants N. H. Jones and wife, S. A. Jones, and Consolidated Gasoline Company, alleging a conveyance by appellants to them of ⅜4 of" the mineral production from certain described tracts of land in Eastland county, and seeking the adjudication of their rights in and title to the mineral interest claimed. In the alternative, they alleged that, if they were mistaken in their construction of the instrument, then a mutual mistake had been made in the drafting thereof and it should be reformed so as to conform to the real agreement of the parties. Their suit against Consolidated Gasoline Company was for conversion of the difference between the amount of oil for which it should have' paid them and the amount for which it actually paid them. Royalty payments had been made to appellees on the basis of ⅜4 of the ⅛ royalty, whereas they were claiming that the payments should have been made on the basis of ⅛ of the ⅛ royalty. The Consolidated Gasoline Company tendered into court $312.19, the difference in value between ⅛ of ⅛ and ⅜4 of ⅝ of the mineral production. In their answen appellants pleaded that the deed executed by them to appellees was without consideration; that the land involved was their homestead, and the acknowledgment of Mrs. Jones was defective, in that the instrument was not explained to her privily and apart from her husband. They alleged that the instrument by its terms conveyed only a ⅝⅜ of ⅛ of the minerals, and that, if they were mistaken in their construction thereof, same should be-reformed and made to conform to the real agreement of the parties. The case was tried before the court .without a jury and judgment was rendered in favor of appellees against Consolidated Gasoline Company for the amount tendered by it in court, and the deed was construed to convey ⅝4 of the minerals produced from the land and yei of the rentals to be paid under the existing lease or future leases. Findings of fact and conclusions of law appear in the transcript.

The first question for decision is the correct construction of the royalty deed. In the granting clause the interest conveyed is “an undivided ⅛- of ⅛ royalty interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land.” Then follows a description by metes and bounds of two tracts of land, after which is this recital: “This sale also covers a ⅛ of ⅛ royalty interest in the 80 acres out of the above section, which is now leased to the Texas Company, and the sale of this royalty in the said SO acres is made subject to the lease to the Texas Company,” etc.

The instrument provides: “It is understood and agreed that ⅛ of ⅛ of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said Grantees and in event that the above described lease for any reason becomes cancelled or forfeited, then and in that event an undivided ⅛ of ⅛ of the. lease interest and all future ren.tals on said land for oil, gas and oth‘er mineral privileges shall be owned by said Grantees, owning ⅛ of ⅛ of all oil, gas and other minerals in a,nd under said lands, together with ⅛ of ⅛ royalty interest in all future rents.”

We find no ambiguity whatever in the recitals above quoted. The language, to our minds, is clear. The land, at the time the royalty deed" was executed, was under an oil and gas lease, under the terms of which ⅜ royalty was to be paid to the lessors. This deed conveyed to the grantees ⅛ of this ⅛ royalty, and ⅛ of ⅜ or of any money rentals which might be paid to extend the terms of the lease. It definitely described the interest which grantees were to have in future rentals and royalties, in the event the then existing lease should be cancelled or forfeited The apparent ambiguity in the instrument results from the ¿following recital therein: “Said land being now under an oil and gas lease, -executed in favor of E. A. Clayton, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes ⅛ of royalty of all of the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.”

Appellants construe this recital as if it were ⅛' of ⅛ of the royalty. Thus construed, this recital is in conflict with other portions of the deed. It is our duty to construe the instrument as a whole, with the view of arriving at the real intention of the parties, and if the language of the provision last above quoted is itself ambiguous, it should be given that construction which will harmonize it with the other plain provisions thereof, rather than a construction which would set it in direct conflict therewith. Smith v. Westall, 76 Tex. 509, 13 S. W. 540; Associated Oil Co. v. Hart (Tex. Com. App.) 277 S. W. 1043. By order of the trial court the original deed has been sent to this court. It discloses that it. was prepared by filling in blanks in a printed form. The portion italicized above was inserted in a blank, and that fact accounts for the apparent ambiguity in this recital. The instrument as a whole is not ambiguous. At most, one provision thereof is ambiguous, and it is susceptible of a meaning which harmonizes the whole. It is plainly our duty to give it such meaning, and thereby avoid a conflict. The trial court did not err in his construction of the instrument, and in awarding judgment against the Consolidated Gasoline Company for the amount tendered by it into court.

The contention of appellants that a conveyance of ⅛ of ⅜ royalty interest, subject to the terms of an outstanding oil and gas lease, should be construed as a conveyance of ⅝4 of the ⅛ royalty, rather than ⅛- of the ⅛ royalty, is believed by us to be untenable, and is therefore rejected.

In appellees’ petition they incorrectly designated Bettie B. Yestal as the wife of W. C. Bedford, and it - is the contention of appellants that this error rendered the petition subject to a general demurrer. This contention is overruled. An error of this nature cannot properly be questioned by a general demurrer.

Appellants question the finding of fact ’ that the royalty deed was duly acknowledged and contend that the acknowledgment of Mrs. Jones was not taken privily and apart from her husband as required by the statute. The evidence on this issue is as follows:

N. H. Jones testified: “As to whether he told my wife in my presence- about what was in that deed; I was standing in the door in the office when she signed, but then I couldn’t hear it real good what this lady said to her. As to whether Bob Grisham was there talking to her; he was in the office, in the same room where my wife and I were. Of course, I was standing there. As to whether I heard that woman in there, I couldn’t understand what that woman said, I couldn’t understand just what she said. I think, as well as I remember, Judge Grisham read it oyer right there in the presence of me and my wife. That was before we signed it.”

Mrs. S. A. Jones testified:

“He read the instrument oyer to us and I said ‘this ⅝4 of it is that this ⅛ of ⅛?’ and he said ‘⅛ of ⅛ was ⅝4,’ and that is the way he explained it and when the woman taken my acknowledgment that is the way she explained it.
“We was in Judge Grisham’s office when we signed the instrument. Judge Grisham had walked out when I signed it and Mr. Jones had walked there to the door. Judge Grisham was in the other room and Mr. Jones was in the door that lead out to where Judge Grisham was, and the woman was in there with me. That door was not shut. He was about half way across the house from me, I don’t know how far in feet, I guess three or four feet, or two or three feet, I don’t know how far exactly. I could see him when I signed that deed, he was standing in the door.”

The attack is made on the basis that the acknowledgment of Mrs. Jones was not taken priyily and apart from her husband. Under the authorities this evidence is sufficient to support the court’s finding that the acknowledgment was taken in compliance with the requirements of the statute as against the attack made thereon. Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Richmond v. Hog Creek Oil Co. (Tex. Civ. App) 229 S. W. 563; Speer on Marital Rights (3d Ed.) § 244, p. 292.

There are many bills of exceptions in the record challenging the action of the trial court in admitting the testimony of certain witnesses. We have considered all of these bills, but no one of them presents any error. The testimony complained of was all admissible under the pleadings of the parties, in which each party was seeking, in the alternative, to have the instrument reformed. Such pleadings rendered admissible testimony that otherwise should, and doubtless. would, have been excluded by the trial court.

Appellants seriously insist that by the over- • whelming preponderance of the evidence the real intention of the parties was to convey a ⅜4 of the ⅜ royalty, and that the instrument, if construed to convey a greater interest, should be reformed. We have carefully read this testimony and find that there is in it support for appellants’ contention, but appellees’ testimony well supports the judgment rendered. It is a case of conflict in the evidence and the trial court has set the matter at rest by resolving the conflict in favor of the appellees.

Affirmed.

On Rehearing.

FUNDERBURK, J.

We are convinced that, in our original opinion, we wrongly construed the writ-, ten instrument in question. The interest conveyed by said instrument is one of two different things, namely: (a) It is a conveyance of ⅛ of the royalty provided to be paid by the lessee to the lessor in the leases by N. H. Jones and wife to Clayton, and by said lessors to the Texas company; (b) or it is a conveyance of a ⅜4 interest in and to all the oil, gas, and other minerals in and under the lands subject to the terms and provisions of said leases. If it can be determined, from the terms and provisions of the instrument alone, which of these two different characters of interests was intended to be conveyed, it is our duty to make such determination without reference to' any parol testimony designed .to show the intention of the parties. The only, difficulty in ascertaining the intention of the parties arises, from the employment of the figures ⅜ of ⅜ and the word “royalty” in connection therewith, throughout the instrument, but particularly in the granting clause, as follows: “⅛ of ⅛ royalty.” If we omit entirely this word “royalty” as here used, the instrument becomes clear and unambiguous and shows a conveyance of ⅜4 of the oil, gas, and other minerals in and under the land subject to the terms and provisions of a lease of 80 acres to the Texas company, and of the remainder of the land to E. A. Clayton. It is thus clearly shown that the effect of subjecting the conveyance to said leases is to give the grantee a ⅜4 of all of the oil’royalty and gas rental or royalty due, and to be paid under the terms of said leases. If a proper construction of the instrument required us to determine with certainty the sense or meaning which the word “royalty” was intended to have, it may be that the entire instrument could not be ■construed unless aided by extrinsic evidence. But it is not necessary, we think, to ascertain just what was meant by the use of the word, provided we can certainly determine that it was not used in the sense of referring exclusively to the royalty provided tó be paid under the terms of said leases. The instrument' itself, when read in the light of the well-known rules of construction, shows clearly that the word was employed in no such sense. The instrument conveyed more than a mere royalty interest. It precisely defined the interest of the grantee in' the oil, gas, and other minerals to exist after the lease's, for any reason, should become canceled or forfeited. In defining such interest the instrument did not purport to grant the same as something else, or in addition to the interest stated in the granting clause. On the contrary, it certainly appears, we think, that the granting clause included the full extent of the estate sought to be conveyed. The subsequent provisions were intended: (1) To subject the full estate granted to the terms of the existing leases; (2) to define the effect of subjecting same to said leases, namely, to limit the interest of the grantee to the same proportionate interest in the royalties and rentals as his interest in all the minerals; (S) to declare that, after cancellation or forfeiture of the leases, the interest should be the same as stated in the granting clause (with a certain reservation in the grantors to execute future leases); and (4) to make clear that under future leases the actual beneficial interest of the grantees was to be limited to the same proportionate interest in royalties and rentals as the interest in the entire mineral estate. It being clear from the instrument that the interest or estate granted included more than the particular royalty interest payable under the terms of the leases, it becomes unimportant just what was meant by the use of the word “royalty,” since whatever it was, other portions of the instrument show clearly that the conveyance was of a ⅛ of ⅛, or ⅝ 4, interest in and to all the oil, gas, and other minerals, subject to the leases, but carrying with it the same reversionary interest after the leases ceased to be enforced.

It is interesting to speculate why the parties said “⅛ of ⅛” rather than “⅝4.” This, as we see it, is the sole support of the contention that the last “⅛” referred to a ⅛ royalty provided to be paid under the terms of the leases. A most, effective answer to this argument is to be found in the subsequent provision of the lease to the effect that after the leases should become canceled or forfeited, “an undivided ⅛ of ⅛ of the lease interest and all future rentals,” etc., should be owned by the grantees “owning ⅜ of ⅛ of all oil, gas and other minerals,” etc. In these provisions the expressiqn “⅛ of ⅛”. can, mean nothing else than the exact equivalent of yai, and at any rate cannot have reference to the particular ⅛ royalty provided in the existing leases. It is- not reasonable that “⅛ of ⅛” appearing in the granting clause meant anything different from ⅛ of ⅛ in the provision just quoted, which is certainly used with reference to the estate to exist when there is no lease upon it, and when there is some future lease which, as we well know, may provide a different royalty than ⅛ of the production. Therefore, just as in the case of ascertaining the exact meaning of the word “royalty,” it becomes unnecessary for us to determine just why the parties said “⅛ of ⅛” instead of “⅝⅛” since whatever the reason it is made certain from a reading of the entire instrument that the factors, ⅛ of ⅛, were used as meaning the same thing as ⅛⅜.

From this interpretation of the instrument it clearly appears that the judgment o'f the trial court was erroneous. It correctly adjudges the interest conveyed to be a ⅝⅜ mineral interest, but incorrectly adjudges the plaintiffs to be entitled to ⅛ of the royalties or rentals. The judgment fails to subject the ⅜4 mineral interest to the terms of the leases and thereby limit the interest of the grantees in the accumulated royalty proceeds to ⅜4 thereof. The tendered fund being the difference between ⅜ of the royalty and ⅜4 of the royalty, should, under the terms of the instrument as we have interpreted it, have been adjudged to the appellants.

The motion for rehearing will therefore be granted, our former judgment set aside, and judgment will be rendered for the appellants for $312.19, with the order that same be paid over to them, and for costs, etc., all of which is accordingly so ordered.

HICKMAN, C. J.

(dissenting on rehearing).

A reconsideration of this case in the light of the motion for rehearing has convinced me that it should be tried again. I believe that appellants’ contention that the judgment of the trial court was contradictory should be sustained. The judgment decreed that the instrument in question conveyed to appel-lees in fee simple as of its date an undivided interest in and to all the oil, gas, and other minerals in and under the land described. It then awarded a recovery on a basis of ⅛ of the royalty. By the express provisions of the deed the interest conveyed thereby, whatever it might have been, was subject to the two mineral leases, one in favor of Clayton and the other in favor of the Texas company. If the trial court was right in concluding that the conveyance was of a ⅜ 4 mineral interest, then the very terms of the instrument itself require that we add to that conclusion that the conveyance was subject to the terms of the leases, and a conveyance of a ⅜4 mineral interest, subject to the terms of the outstanding leases, should not be construed as a conveyance of ⅜4 of the entire mineral production as a royalty. In our original opinion we stated: “The land, at the time the royalty deed was executed, was under an oil and gas lease under which ⅛ royalty was to be paid to the lessors.” The record is found upon review not to justify that statement of fact. Neither of the leases existing upon this land was introduced in evidence, and we are not advised as to their terms. If in fact these leases did provide for a ½ royalty on all the minerals, that would be a strong circumstance indicating that the intention of the parties to this conveyance was to convey a ⅛ of that royalty interest, regardless of the fact that the instrument conveyed a lesser interest under future leases. On the other hand, if the leases did not contain such provisions for royalty, an impossible situation might result when it was attempted to construe the instrument as a conveyance of ⅛ of the ⅛ royalty. Having decided that there was error in the judgment, we would not be authorized to reform and affirm where it is uncertain that the error could be cured by reformation.

It is my view that it is impossible for us properly to determine the rights of the parties in the absence of knowledge of the contents of these leases. I therefore think that the cause should be remanded for another trial generally, upon which trial the leases could be introduced in evidence and the oral testimony on the question of the intention of the parties be developed in view of the situation existing at the time the instrument was executed.

I cannot agree with my associates that the record before us warrants us to render judgment for appellants. The opinion of the majority on rehearing seems to me to be built upon an incorrect premise. It is assumed and asserted at the beginning of the opinion that the interest conveyed was either (a) a royalty interest of ⅛ of the royalty to be paid under the leases, or (b) a ⅛4 mineral interest subject to the terms of the leases. Of course, with that premise, no other conclusion could be arrived at except the one there announced, for it is evident that something more than a mere royalty interest was conveyed. I do not agree that, by demonstrating that something more than a mere royalty interest was conveyed, the conclusion' must follow that therefore the royalty interest conveyed was ⅝4 of ⅛ rather than ⅛ of ⅛, as expressly provided in the instrument. Generally, instruments of this character convey the same proportionate interest in the royalty which they do in the minerals as such. But it would not be contended that an instrument could not convey a different proportion in the royalty under an outstanding lease to that conveyed in the minerals in the event the lease expired. We have the original instrument before us for our inspection. The granting clause is all printed except this: “⅛ of ⅝ royalty.” The first instrument drawn conveyed of the royalty and the grantees refused to accept it on the ground that their contract was for ⅛ of the royalty. This court, by reversing and rendering this judgment, necessarily holds that the instrument is free of ambi•guity which would render inadmissible any evidence throwing light upon the intention of the parties.

I cannot construe the opinion in any other light. To my mind, no more ambiguous instrument has ever been presented to me for construction. Assuming that a retrial would disclose that a ⅛ royalty was provided by the leases, then to my mind the effect of rendering this cause would be to hold that the use of the word “royalty” in the written portion of the instrument must yield to the printed portion and be wholly disregarded, or, if not, then that we should change the term “⅛ of ⅛ royalty” to “⅜4 of ⅛ royalty.” This court held, in Curry v. Texas Co., 8 S.W.(2d) 206, 209, that the expression “½, of ⅛ of .08 cents” was ambiguous, and considered oral testimony that would change the word “cents” to “dollars.” Surely there is much more ambiguity apparent in the instrument under construction in this case than there was in the instrument there construed. Courts are concerned primarily with arriving at the intention of the parties, and a slight variation from a clear expression in an instrument is sufficient to create an ambiguity authorizing admission of oral testimony to determine the intent.

The instrument in this case was drawn by the grantors’ own attorney. It is, to my mind, certainly ambiguous. By well-known principles of law in such a situation it should receive that construction which would carry the greatest estate which said instrument might be construed to convey. I believe that, if by the terms of the leases outstanding upon this land at the time the instrument was drawn, Jones and wife were to receive a ⅛ royalty, then, in view of the fact that it was clearly the grantees’ understanding that they were to receive ⅛ of the royalty, and in view of the fact that the grantors’ attorney prepared the instrument, and giving effect to the rule that the written portion should control the printed portion, the instrument should be construed as conveying ⅛ of ⅝ royalty payable to the grantors under the terms of the outstanding leases, even though it conveyed a less interest in royalties under future leases, in the event the then existing leases should become canceled. Entertaining these views, I cannot agree with ■my associates that judgment should be here rendered in favor of appellants.


source: Caselaw Access Project

author: PELPHREX, C. J.

license: Public Domain

text:
    ELLIS COUNTY v. McKAY.
    No. 2752.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    Rehearing Denied Jan. 19, 1933.
    Archie D. Gray, of Waxahachie, and A. R. Stout, of Ennis, for appellant,
    Lem Wray and J. C. Lumpkins, both of Waxahachie, for appellee.
   PELPHREX, C. J.

Appellee, from December 1, 1920, until December 31, 1924, was the tax collector of Ellis county. On February 14, 1930, he filed this suit seeking to recover from appellee the sum of $4,420.76, alleged to be due him as commissions on delinquent taxes collected by him and for compiling certain delinquent tax records at the rate of 5 cents per line. '

The case was submitted to a jury on special issues, all of which were found by them against appellee.

Upon the motion of appellee, however, the court set aside the answer of the jury to issue No. 10, and rendered judgment in favor of appellee for $203.25, with interest thereon from December 1, 1922; this amount being fees for compiling the supplemental delinquent tax record for the ^éar of 1922.

From this judgment Ellis county has appealed.

Opinion.

Appellant present's eight propositions in its brief, which, in substance, are: (1) That, the interested testimony of appellee failing to show that the supplemental delinquent tax record of 1922 was made in the manner and at the time required by law, the jury’s answer to issue No. 10 was supported by the evidence, and the trial court erred in rendering judgment in favor of appellee, notwithstanding such finding; (2) that, appellee having failed to make out a prima facie case, the court should have instructed a verdict for appellant ; (3) that the cause of action was clearly barred by the four-year statute of limitations; (4) that, appellee’s testimony showing that he had voluntarily paid over the sums sought to be recovered, he was not entitled to recover them; (5) that, the evidence showing that the sums here sued for were commingled with other general tax accounts and not kept in a separate account as required by law, appellee was debarred from recovering any sum from appellant; and (6) that, appellant being a county, and there being no exception in this case which would entitle appellee to recover interest, the court’s judgment allowing appellee interest was erroneous.

It will be seen from .what has heretofore been stated that more than four years had elapsed between the time áppellee’s cause of action arose and the filing of this suit, and appellant excepted to appellee’s petition on the ground that the action was barred by the four-year statute of limitation. This exception was overruled by the court, and appellant now contends that such action was error. Appellee, on the other hand, asserts that the filing of his suit was timely by reason of the following provisions of an Act of the Forty-First Legislature (1929 [1st Called Sess.] c. 95):

■ “Section 1. That any person in the State of Texas who formerly served as a duly elected and qualified Tax Collector of any county of this State while subject in that capacity to the terms and provisions of the law known as the Maximum Fee Bill, and who, during such time, collected and paid over to the Treasurer of such county the fees and commissions set out and provided for in Section 3 of Chapter 147, Acts of the Regular Session of the 34th Legislature, 1915, or any part of such fees and commissions, is hereby authorized to bring suit in any competent court of this State against such county so served by him to collect and recover all such fees and commissions so paid over by him, provided such suit shall be brought in the county where such fees and commissions were collected and erroneously or wrongfully paid over as hereinabove set out.”
“Sec. 3. In case any such suit be brought against any county in this State for the purposes set out in Section 1 of this Act, no plea of limitation shall be available to such county as a defense to any such suit, and in any cross action filed by a county against the plaintiff in any suit authorized by this Act for money due the county by the Tax Collector, the plea of limitation to such cross action shall not be available to the plaintiff.”
“Sec. 5. The fact that the Supreme Court of Texas in the case of Bitter v. Bexar County, 11 S.W.(2d) 163, haa held that Section 2, Chapter 64, of the Acts of the Second Called Session of the 36th Legislature, 1919, is unconstitutional, and the further fact that many Tax Collectors, acting under said Act, have erroneously paid money to some of the counties of this State, create an emergency, and a public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and that this Bill be put on its third reading and final passage, and it is so enacted.”

This act, it appears, was repealed (Acts 1930 [4th Called Sess.] c. 3) on the same day appellee’s suit was filed, and' appellant makes the further contention that appellee, not having filed his suit before the repeal of the statute, lost his right thereunder, and was relegated to and had only such rights as he might have had prior to its enactment.

The above act and its effect was before the Court of Civil Appeals of the Tenth Supreme Judicial District in the case of Limestone County v. Robbins. That court certified the controlling questions, among which was the one of limitations, to the Supreme Court. The certified questions were referred to section A of the Commission of Appeals and in 120 Tex. 341, 38 S.W.(2d) 580, 584, the commission, after quoting that . portion of the act above quoted, had the following to say: “The conditional right of action which was conferred on the respective tax collectors by the 1929 act became vested when that act became effective. The Legislature, because of the constitutional restriction against retroactive laws, had no authority afterwards to take away this right of action altogether, even though no action had been instituted. Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249; Cathey v. Weaver, 111 Tex. 515, 242 S. W. 447. The repealing act had net other effect on this conditional right of action than to bring it under the operation of the general statutes of limitation, which, prior to that time, had not begun to run against it.”

This opinion of the commission was adopted by the Supreme Court. While it is true that the suit in that case had been instituted before the act was repealed, still we fail to see under the holding as just quoted how the statute would apply here and not there. If, as the court said, the repealing act merely put into operation the general statutes of limitation, then a tax collector, seeking to recover the moneys contemplated by the act, might bring his suit at any time within the statutory period from that date.

Among others, the following issue was submitted: “Special Issue No. 10. Do you find from a preponderance of the evidence that Barney McKay, when there were as many as two years back taxes due and unpaid from delinquent tax payers, prepared or caused to be prepared in duplicate, a delinquent tax record supplement showing the amount of delinquent taxes appearing against all such lands and lots, separately shown for each item of tax, interest, penalty and costs, for each of said years so delinquent, and not theretofore appearing on other such records?”

The jury answered this question in the negative, and appellee in his motion to set aside the verdict attacked that finding on the ground that the unco-ntradicted evidence demanded an answer in the affirmative thereon.

The trial court sustained that part of ap-pellee’s motion and awarded him a judgment for the making of the supplemental delinquent tax record of 1922.

Appellant now questions the correctness of such action by the court, and contends that it was error because appellee failed to plead and prove that he had prepared the record in a legal manner, and that the only evidence tending to show that the record had been prepared according to law came from interested witnesses, upon whose testimony suspicion had been cast, thereby making the question whether he had performed all the .acts required by law one for the jury.

Section 2 of chapter 147, of the Thirty-Fourth legislature (1915), contained the following provision as to the making of supplemental delinquent tax records, such as appel-lee here seeks to collect for: “And it shall be the duty of the tax collector, whenever there shall be as many as two years of back taxes that have hot been included in such delinquent tax records to prepare or cause to be prepared a supplement to such records which shall be prepared in duplicate, one copy to be filed in the office of the county clerk and one copy thereof to be furnished to the Comptroller of Tublic Accounts subject to his approval ; and whenever said supplement shall have been approved by the commissioners’ court and by the State Comptroller, then the tax collector shall rely thereon for the data covering delinquent taxes for said years in making out the notices or statements provided for in Section 1 of this Act; provided, said tax collector in making up said delinquent tax record and supplement, shall examine the records of the district court and the county clerk’s office of his county and no tract of land shall be shown delinquent on said delinquent tax record for any year where the records of the district court or the county clerk’s office show that the taxes for said year have been paid,’’

Upon the failure of the evidence to show that appellee, in making up the supplement for which he here recovered judgment, examined the records in the district court or county clerk’s office, appellant now contends that he has not shown himself entitled to recover therefor. We think the position is well taken. It is apparent that the Legislature intended that no taxpayer’s property should be listed upon the delinquent tax record until a check had been made to ascertain if in truth and in fact the taxes had not been paid; the purpose, of course, being to prevent confusion to make the record reveal the truth, and to save the taxpayer from embarrassment. And we further think that a tax collector, before he would be entitled to recover for ■the making up of such delinquent record, would be called upon to show that he had made the check called for by the act, and that the records of the district court and county clerk’s office did not show that the taxes for either of the years in question had been paid.

Without such a check having been made, we fail to see how any substantial compliance with the law and its purposes could be had, and a substantial performance of the duties is required before a tax. collector can recover such fees. Limestone County v. Robbins, supra; Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444.

If we be correct in this holding, then it becomes unnecessary to consider the remaining question raised.

Appellant further contends that its general demurrer to appellee’s petition should have been sustained by the trial court because it failed to allege specifically that the claim sued upon had been presented to the commissioners’ court and by it refused.

Appellee refers us to paragraph VI of his second amended petition, which' reads: “Plaintiff says that the aforesaid additional commissions were in fact collected by him and paid over by him wrongfully and erroneously to the defendant, its officers and agents, on its request and demand, all as alleged herein, and that by reason of the acceptance and retention thereof by the defendant and the appropriation of said sums of money to its own use and benefit, the defendant became liable, and bound to pay, and became obligated to pay to plaintiff said sum of money, and, though plaintiff has often demanded the repayment of said sums of money to the defendant, as provided by statute, it has wholly failed and refused to pay the same or any part thereof, and still refuses to do so, and because thereof, plaintiff brings this suit.”

Under the rule that every reasonable in-tendment must be given pleadings as against a general demurrer, we think the allegation, “though plaintiff has often demanded the repayment of said sums of money to the defendant, as provided by statute, it has wholly failed and refused to pay the same or any part 'thereof,” is sufficient to justify the trial court in overruling appellant’s general demurrer. Appellee by cross-assignment contends that he was entitled to a judgment, non obstante veredicto, for commissions on delinquent taxes collected by him for the years 1921 and 1923. In view of the fact that the judgment must be reversed and the cause remanded, we shall not attempt a discussion of the evidence on that feature of appellee’s claim. To entitle a party to a judgment notwithstanding the findings of the jury, it must appear that under no view of the pleadings and evidence would the opposite party be entitled to prevail. Vogel v. Allen, 118 Tex. 196, 13 S.W.(2d) 340, and cases cited.

Suffice it to say that the record here does not iall within that category.

The proposition that appellee should not recover because of his voluntarily having paid over the money to appellant is, in our opinion, without merit. The very act which allowed' tax collectors to maintain suits of this character appears to have contemplated-that moneys paid over to the counties under facts as here shown could be recovered. The cases cited by appellant therefore do not apply.

Appellant also complains of that portion of the court’s judgment allowing interest from December 1, 1922, asserting that it, being a county, would not be liable therefor.

We are inclined to agree with appellant that, the money not having been paid over under protest, the claim not arising out of a contract, and the act of the Legislature which gave him the right to recover after his cause of action, was barred by limitation having not conferred' the right to recover interest, he would not be entitled thereto.

As has been before said, the act prevented the county from defending on either the ground of limitation or voluntary payment, therefore it was necessary for appellee to rely upon the act in order to recover, and we are of the opinion that under such a state of facts he would be entitled to recover only that which the act authorized, to wit: “All such fees and commissions so paid over by him.”

. For the reasons heretofore stated, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

Appellee has filed a motion for rehearing in which he asserts that we were in error in holding that he had failed to prove that he had substantially performed his duty in making up the delinquent tax record supplement. He cites us to the testimony of ap-pellee to the effect that he had made up the delinquent tax supplement roll for the years 1920 and 1921; had certified to it; had had it approved; and had checked and verified it.

If that had been the only testimony from appellee on this subject, the position of appel-lee .would be well taken, but we also fihd the following testimony from him as to what he did in making up the delinquent roll: “I made two copies of the delinquent tax rolls. I would first get from our block book what we called a skeleton sheet, and arrange the property according to the abstract numbers, that is the land, for the yeai-s it was delinquent; and if it was city property, we would arrange it according to towns, alphabetically I believe ' it was; and 'then we would divide the taxes into State ad valorem, State school, State pension, and- then the County ad valorem, the school, county road, and when we got this skeleton completed we would check it against our block books of all delinquent stuff; and then made two copies of this on our permanent record, dividing the taxes in a similar manner, giving each piece of property a line to itself, and showing the years the property was delinquent; and after we got this compiled we got it approved by the Commissioners’ Court, and then mailed it to the State Comptroller at Austin; and he would check and approve them, and return one copy to me for my office pennanent record, and keep the other one. Upon this copy in our office I would isstfe notices to the delinquent tax payers and mail them out, as I have already explained.”

The above testimony shows what was done by appellee in making up the delinquent tax roll, and certainly fails to show that he ever made any check of the records of district court or the county clerk’s office.

If appellee’s testimony that he had checked and verified the delinquent tax supplement roll had the effect contended for now by ap-pellee, then this evidence certainly contradicts and casts suspicion upon it.

With this further explanation of the facts, the- motion will be overruled.


author: O’QUINN, J.

text:
    FLETCHER et al. v. BORDELON et al.
    No. 2414.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1933.
    Rehearing Denied Jan. 18, 1933.

      Orgain, Carroll & Bell, S. M. King, and J. D. Rienstra, all of Beaumont, for appellants.
    Jones & Linseome, of Beaumont, for appel-lees.
   O’QUINN, J.

. This is an appeal by E. A. Fletcher, mayor of the city of Beaumont, and other city officers, from a judgment of the district court of Jefferson county, Tex., perpetuating and mating permanent an injunction against them from enforcing or attempting to enforce the provisions of a certain ordinance passed by the city of Beaumont in regard to the operation of automobiles in the transportation of persons for hire on and over the streets of said city, known as the “Hack and Carriage Ordinance.” The enacting clause of said ordinance is as follows: “An Ordinance entitled an ordinance defining hacks and carriages, providing that it shall be necessary to procure a special permit for the operation of same, and the provisions under which a permit may be issued, regulating the operation thereof in the city limits of the City of Beaumont, prohibiting their operation under various conditions, declaring the unrestricted .operation of said hacks and carriages to be a nuisance and unlawful, repealing all ordinances and parts of ordinances in conflict herewith insofar as in conflict and no further, and providing a penalty for the unlawful operation thereof.”

Appellees, R. J. Bordelon, J. Rizzo, Bennie Salach, E. T. Hyde, and O. B. Payne, Jr., alleged that they had associated themselves together for the purpose of operating a business of carrying passengers for hire in the city of Beaumon,t, and that their association was known as the “Blue Bird Taxi Association.” That in carrying on said business they were using, and would continue to use, vehicles known as automobiles, and that they had expended a large sum of money in equipping said automobiles for the transportation of passengers for hire and had also arranged and equipped a depot or headquarters for the transaction of said business. They further alleged that Carl E. Kennedy, chief of police of the city of Beaumont, was threatening to arrest sai*d appellees for operating their said business in violation of said Hack and Carriage Ordinance, and would do so unless restrained, and prayed for a writ of injunction against the mayor, E. A. Fletcher, Carl E. Kennedy, chief of police, Paul Millard, city manager, Steve King, city attorney, Sam Z. Powell, and George A. Wells, city commissioners, which was granted, and, as above stated, made permanent.

The ordinance is quite lengthy, consisting of some twenty-three sections and covering many pages of the record. We shall not set same out at length, but will refer to such portions as are necessary to be discussed. The city of Beaumont is now, and has been, since prior to September 11, 1928, operating, under the Home Rule Amendment to the Texas Constitution (art. 11, § 5) and the Enabling Act thereto. September 11, 1928, it. passed what is termed a Hack and Carriage Ordinance. .June 17, 1932, the ordinance was: amended in certain particulars. That is the ordinance in question.

Section 1 of said ordinance reads:

“Section 1. Unless it appears from the context that a different meaning is intended, the following words shall have the meaning attached to them by this Section:
“a. The word street shall mean and include any street, alley, avenue, lane, public place or highway within the city limits of the City of Beaumont. ¡
“b. The word hack is hereby defined to' mean, cover and embrace any vehicle for hire for the purpose of transporting passengers' upon or over the streets of the City bf Beaumont, whether operated- wholly within the city or between points outside of the city and points within the city, except vehicles operated upon rails or tracks.
“c. The term carriage is hereby defined to mean, cover,' and embrace any vehicle operated for hire for the purpose of transporting goods, wares, merchandise, baggage -or freight upon or over the streets of the City of Beaumont, except vehicles operated upon rails or tracks.
“d. The word person includes both singular and plural and shall mean and embrace any .person, firm, corporation, association; partnership or society.”

■ Section 2 relates to obtaining a certificate of public convenience and necessity authorizing the operation of vehicles.. Subdivision (a) is: “Certificate of Public. Convenience and Necessity: No hack or carriage shall hereafter operate within the corporate limits of the City of Beaumont, Texas, without first having obtained from the City Commission of the City of Beaumont, Texas, under the provisions of this Ordinance, a certificate declaring that the public convenience and necessity requiring such operation exists, and without having a license as herein provided.” Subdivision (b) provides that such application shall be made to the city commission, and shall furnish certain information to be considered by said commission on hearing. Subdivision (c) provides that the city commission shall determine whether the public convenience and necessity requires the operation of such vehicles and authorized said commission to investigate the fitness of the applicant to operate such vehicles, and in doing so, among other things, to give weight and due regard to (1) the probable permanence and quality of the services offered by the applicant; (2) the financial ability and responsibility of the applicant; (3) the character of vehicles, and character and location of depots and terminals to be used; (4) the experience of the applicant in the transportation of passengers for hire in automobiles; and (5) the adequacy of the hack service and other forms of transportation for passengers already existing in the city.

Section 3 provides: “(a) Issuance or refusal of certificates. The Oity Commission shall have the authority to either grant an application for which an application is made, or to grant a certificate to the applicant for a lesser number of vehicles than specified in said application, provided, the City Commission first finds that public convenience and necessity demands the granting of said certificate ; if the City Commission finds that public convenience and necessity do not require the operation of any such hack or hacks, or carriages, as is specified in the application, or that the applicant is not fit to conduct such business, it shall forthwith refuse such application and no certificate of convenience and necessity shall be issued to such applicant. The burden shall be upon the applicant to establish the existence of a public convenience and necessity for the operation of hacks or carriages designated in the application.”

Subdivision (b) provides for the issuance of the certificate of convenience and necessity, if the necessity therefor is found to exist and the applicant has furnished the information required, and same supports the application.

Subdivision (c) makes the certificate nontransferable without the consent and approval of the city commission, and prescribes the manner of transfer.

Subdivision (d) provides that license to the applicant shall be issued within thirty days after the certificate of convenience and necessity is granted and proof of payment of required license fees. It further provides that no license or renewal of license shall be issued until the holder of the certificate shall show that all taxes levied and assessed by the city against the vehicle, if due, have been paid, and that said vehicle has been rendered to the city assessor and collector for taxation for the current year for which the said license is sought. That any certificate issued shall be effective until canceled, and no additional certificate of public convenience and necessity shall be required for obtaining a license or the renewal of a license so long as the original certificate is in effect, but the owner of the certificate shall be limited strictly to the character and type of operation evidenced by the application and specified in the certificate and license.

Subdivision (e). The license, when issued, shall be good for the reimainder of the calendar year and shall be renewed by the holder of the certificate if he desires to operate under same on the 1st day of January, of each succeeding year.

Sudivision (f) provides that no license for the operation of a hack or carriage shall be issued, nor shall any hack or carriage be operated within the limits of the city of Beaumont, until the city commission has issued a certificate of public convenience and necessity for the operation of same, and that no parts of the original ordinance passed September 11,1928, or as amended June 17, 1932, shall apply to or affect specially chartered busses, sight-seeing busses, driverless cars, or motorbusses owned and operated by any street railway company under authority of the General Laws of the State of Texas.

Subdivision (g) provides that no certificate of -public convenience and necessity, as provided for in the ordinance, shall be necessary for the licensing of the same number of hacks or carriages licensed for operation and operated by an application under the same name on June 1, 1932, or for the renewal of licenses for such applicant annually thereafter.

Subdivision (h) provides that the provisions of the ordinance shall apply to all applications for permits to operate hacks and carriages pending at the time of the enactment of the ordinance, as well as to all applications made thereafter..

Section 6 provides: “It shall be unlawful: Subdivision (a). To drive or operate or cause to be driven or operated any hack or carriage upon or along any street in the Oity of Beaumont unless there is in force and effect a valid permit as prescribed in this ordinance for the operation of such vehicles.”

Subdivisions (b), (c), and (d), regulate the manner of operating hacks and carriages.

Under subdivision (e), it is unlawful to operate any hack within the city limits unless and until the owner or operator, or the person to whom the certificate and permit is issued, shall have procured and deposited with the city clerk of the city of Beaumont a good and sufficient bond or public liability an insurance policy such 'as may be approved by the city manager as to form and efficiency, payable to the city, for the use and benefit of any person or persons entitled thereto, etc.

Appellees alleged, and here contend, that the ordinance in question is unenforceable and void because it undertakes to grant to the city of Beaumont the arbitrary right and authority to refuse applications for permits to operate hacks within the city limits. We do not think this contention can be sustained. The ordinance certainly did not in terms grant such authority, nor do -we think it did so in effect. The ordinance plainly provides for the issuance of permits and licenses for the operation of vehicles for the transportation of passengers for hire on and over its streets under certain conditions and upon the performance of certain requirements. .The streets of cities are public highways, and under the primary control of the Legislature. The Home Rule Amendment to the State .Constitution, article 11, § 5, and article 1165 (1096a), R. S. 1925, which is .the amended Constitution enacted into statutory form, together with article 1175 (1096d), R. S. 1925, a portion of what is known as its Enabling Act, confer upon cities full power of self-government, and delegate to cities operating under the Home Rule Amendment all power the Legislature had to control their streets, and to regulate traffic thereon. In addition to the provisions in the charter, the city could exercise all such authority in the control of its streets and the regulation of-the use thereof as is granted by General Law. Article 1175, Vernon’s Annotated Statutes, subdivisions 16, 20, and 21, empower the city to do everything it attempted to do by its ordinance.

• Subdivision 16 grants the city exclusive dominion, control, and jurisdiction over its streets, and to provide for the improvement thereof.

Subdivision 20 authorizes the city: “To license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or light vehicles, and to prescribe the speed of the same, the qualification of the operator of the same, and the lighting of the same by night and to provide for the giving bond or other security for the operation of the same.”

Subdivision 21 gives the city the authority: “To regulate, license and fix the charges * * * made by any person owning,- operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the city.”

It is thus seen that under these provisions of General Law, the city was and is empowered to do the very thing and everything it undertook to do by its ordinance here attacked. No one has the inherent right to carry on his private business upon the public streets. It is not only the right, but the imperative duty, of the city to make and enforce such regulations covering the use of its streets, improved at large cost for the benefit of the public, as will be for the convenience and protection of the public. Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6 (writ refused); City of San Antonio v. Fetzer (Tex. Civ. App.) 241 S. W. 1034 (writ refused); Waid v. City of Fort Worth (Tex. Civ. App.) 258 S. W. 1114 (writ refused); West v. City of Waco, 116 Tex. 472, 294 S. W. 832; Peters v. City of San Antonio (Tex. Civ. App.) 195 S. W. 989; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Ex parte Bogle, 78 Tex. Cr. R. 1, 179 S. W. 1193; Ex parte Schutte, 118 Tex. Cr. R. 182, 42 S.W.(2d) 252; Hadfield v. Lundin, 98 Wash. 657, 168 P. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942; Capitol Taxicab Co. v. Cermak, Mayor, City of Chicago (D. C.) 60 F.(2d) 608. The provisions of the ordinance relative to securing a certificate of convenience and necessity, and the information required to accompany the application therefor, are reasonable and wholesome, required for the intelligent and proper consideration of the commission in determining whether the convenience and necessity of the public required or justified the granting or refusing the certificate, and the discretion lodged in the commission in passing upon same is a proper, wholesome, and constitutional power given for the benefit and safety of the public, and its exercise a duty owed to the public.

Appellees cite us to the cases of City of Arlington v. Lillard, 116 Tex. 446, 294 S. W. 829, and City of Fort Worth v. Lillard, 116 Tex. 509, 294 S. W. 831, as sustaining their contention that the ordinance in question is void and unenforceable because it confers upon the city of Beaumont the arbitrary right and authority to refuse applications for permits to operate.automobiles for hire in the transportation of passengers within the city limits. We think each of the cited cases are easily distinguishable on the facts from the instant case. In City of Arlington v. Lillard, the facts were: The city of Arlington is situated between the city of Fort Worth and the city of Dallas. It passed an ordinance prohibiting the use of Abrams and Division streets through the city by those engáged in the operation of motorbusses or motor vehicles for hire, and provided a penalty for its violation. Lillard operated a motorbus line for the carrying of passengers for hire from the city of Fort Worth, through the city of Arlington, to the city of Dallas. Abrams and Division streets were the only streets in- the city of Arlington that could be used in going from Fort Worth and other points west of Arlington through to the city of Dallas. Division street was also a portion of the Bank-head state highway. The effect of the ordinance was to prohibit complainants from passing through the city of Arlington, and to prohibit them from using that portion of the state highway. Lillard and others sought and obtained a temporary injunction against the enforcement of the ordinance. The city of Arlington appealed the judgment to the Fort Worth Court of Civil Appeals, which certified questions to the Supreme Court, to which it answered that the city did not have the power, in the exercise of its dominion otter its streets, to affect and interfere with the use of a state highway outside of and beyond the city limits by prohibiting the use of two certain streets in the city, one of which was a part of a state highway, and that the city did not have the power to prohibit the use of all of its streets to those carrying passengers for hire. The facts of the instant case are wholly different from' those in the cited case, and neither of the questions involved in that case is involved in the instant case.

In City of Fort Worth v. Lillard, the complainants were carriers of passengers for hire between the cities of Port Worth and Dallas, an.d intermediate points, and upon and over the streets of the city of Port Worth, and sought an injunction against the city of Fort Worth to prevent it from enforcing against them an ordinance purporting to regulate their use, as such carriers, upon the streets of the city. In petitioning for injunction, complainants alleged, among other things, that the city of Port Worth, at the time it enacted.the ordinance, was without power to “enáct ordinances” ; that the ordinance challenged was not enacted in accordance with charter provisions, and hence void; and that: “Under the guise of enacting a regulatory measure, regulating the character of business therein dealt with, an ordinance and regulation was passed having for its real object and purpose the prohibiting of motor busses operating upon the streets of the City of Fort Worth, and transporting therein passengers, for hire, and thence to, from and between the points hereinabove mentioned; and especially prohibiting the operation of such vehicles between the City of Fort Worth and the City of Dallas; and its purposes and intentions were wholly prohibitory and not Regulatory.” The district court granted the injunction, and upon appeal to the Fort Worth Court of Civil Appeals (272 S. W. 577) the judgment was affirmed on the ground that the ordinance was not passed in accordance with the city' charter provisions. The Supreme Court (294 S. W. 831) granted a writ of error and affirmed the judgment of the Court of Civil Appeals on the ground that the “purpose and effect” of the ordinance was to prohibit' the use of the streets of the city for the purpose of carrying passengers for hire. The body of the ordinance is not set out, so we must conclude that the “effect” ascribed to it by the Supreme Court was plainly to be found in its provisions. Not so here. The ordinance heré only seeks to regulate the traffic of the nhtUfre involved on and over its streets for the convenience, necessity, and protection of the public, making and providing to all who wish to engage in the carrying business a full opportunity and method of procuring the' right to do so. The ordinance is in its provisions and effect wholly' regulatory. On the same day that the Supreme Court handed dqwn its decisions in the Lillard Cases cited, it also handed down its decision in the case of West v. City of Waco, cited by us supra, written by the same judge, which upholds and is authority for the enactment and enforcement of the ordinance challenged in the instant case.

But appellees insist that the ordinance in question does not and cannot apply to them because the ordinance undertakes to regulate the operation of hacks upon the streets of the city, while they are engaged in the operation of automobiles, which are entirely different vehicles from hacks, and that the. word “backs,” when given its usual and ordinary meaning, does not include or mean automobiles. This contention is overruled. Subdivision (b),- of section 1 of the ordinance, set out supra, specifically declares the word “hack” used therein to “mean, cover and embrace any vehicle for hire for the purpose of transporting passengers upon or over the streets of the city * * * except vehicles operated upon rails or tracks.” As a general rule, in construing statutes words are to be ■ given their usual and ordinary meaning unless it clearly appears that a different meaning was intended. Here the ordinance specifically declares the word “hack” to include “any vehicle” used for the purpose of transporting for hire passengers upon and over the streets of the city. This use of the word “hack” as a general term to include all vehicles used for certain named purposes was authorized and is not ambiguous. Moreover, the ordinance having the effect of a legislative act must be so construed as to effectuate its intent, which was to apply to the very kind of vehicles used by appellees. Furthermore, the ordinance is in consonance with the authority granted the city by subdivisions 20 and 21 of article. 1175, Yernon’s. Annotated Civil Statutes, which specifically authorize the city to license and control the operation of all character of vehicles using the public streets, including automobiles or like vehicles, and to regulate,' license, and fix the charges made by any person owning, operating, or controlling “any vehicle of any character used for the carrying of passengers for hire on the public streets.of the city.” The insistence of appellees that th.e word “hack” being used, its meaning cannot be' extended to include automobiles, is not sound. The rule “expressio untas est exclusio alterius” urged has no application, the ordinance plainly defining it to mean.any vehicle used for hire for transporting passengers upon and over the streets of the city, which undoubtedly includes aiitomobiles.

Appellees’ contention that the ordinance is void and unenforceable as against them because it operates and is an unjust discrimination against them, in that it excludes vehicles operated upon rails or tracks, is not well taken. There is a marked distinction between vehicles operated upon rails or tracks — street cars and the like — and automobiles as ordinarily used. - The first are confined to one specific line of travel and operate on regular schedules, while the second —automobiles—pass upon and over any portion of the street at irregular intervals and to all different points in the city, and at the same time. They do not belong to the same class of vehicles, and are entirely different in their method and place of operations. In Supreme Lodge United Benev. Ass’n v. Johnson, 98 Tex. 1, 5, 81 S. W. 18, 19, it is said: “It is well settled by the decisions of this court, as well as by the decisions of the Supreme Court of the United States, that the Legislature may classify persons, organizations, and corporations according to their business, and may apply different rules to those which belong, to different classes.” This rule obtains in the enactment by the city of the ordinance in question. All persons or corporations in the class with appel-lees are treated alike under like conditions, and the ordinance is not open to the objection that it denies to appellees the equal protection of the law. Union Central Life Insurance Co. v. Chowning, 86 Tex. 654, 657, 26 S. W. 982, 24 L. R. A. 504; Auto Transit Co. v. City of Fort Worth (Tex. Civ. App.) 182 S. W. 685; Nolan v. Riechman (D. C.) 225 F. 812; Bradford v. City of Houston (Tex. Civ. App.) 4 S.W.(2d) 592; Waid v. City of Fort Worth (Tex. Civ. App.) 258 S. W. 1114, 1117 (writ refused); Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Ex parte Bogle, 78 Tex. Cr. R. 1, 179 S. W. 1193, 1194.

The ordinance provides: “No certificate of public convenience and necessity, as described in this ordinance, shall be necessary for the licensing of the same number of hacks and/or carriages licensed for operation and operated by an applicant under the same name on the first day of June, A. D: 1932, or for the renewal of licenses for the same number of hacks or carriages for such applicant annually ■ thereafter; however, the persons, firms and corporations now operating licensed hacks or carriages in the City of Beaumont shall comply 'and be .governed by all other provisions of this ordinance.”

Appellees say that this provision renders the ordinance void and unenforceable because it is an unjust and unlawful discrimination against them in favor of those who on June 1, 1932, were operating hacks within the city 'by excepting them from the procuring of license or the renewal of license already held by them. This contention is overruled. The holders of certificates and licéns-es on June 1,1932, had already complied with the requirements of procurement of certificate and license, and so had met the requirements and conditions resting upon appellees to operate their automobiles. This provision of the ordinance, was but the exercise and application of the well-known principle of proper and reasonable classification, and should not be deemed objectionable as petr-'mitting unjust discrimination in violation of the rule against class legislation. The very language of the ordinance shows that the ones excepted had already, under the original ordinance of 1928 and prior to June 1, 1932, applied for and obtained license for operating hacks, and were on said last-named date operating hacks under the license so obtained. Their applications for license had been passed upon and granted. They were in a different class from appellees, in that ap-pellees were for the first time proposing to and were operating hacks or automobiles without a permit, and so not in the same class as the others, nor affected by the same conditions. Ex parte Sepulveda, 108 Tex. Cr. R. 533, 2 S.W.(2d), 445; Railroad Commission of Texas v. Rau (Tex. Civ. App.) 45 S.W.(2d) 413, 416; Gruber v. Commonwealth, 140 Va. 312, 125 S. E. 427. See, also, 6 R. C. L. p. 373, § 369.

Nor can the contention that the ordinance is invalid and not enforceable because it exempted from requirements of securing a certificate of public convenience and necessity, and a permit, specially chartered busses and sight-seeing busses, be sustained, as the exemption was ‘based upon an obvious and reasonable classification. Specially chartered busses and sight-seeing busses are véry similar ip purpose and effect. Their use,is very infrequent, covers only particular sections of the vicinity, and the number of bust ses so used very small, and most, frequently are used to visit out of the city places which have some peculiar interest, while appellees’ vehicles require constant and unusual use of all the streets in the operation of their business. Alward v. Johnson, 282 U. S. 509, 51 S. Ct. 273, 75 L. Ed. 498, 75 A. L. R. 9.

Likewise, the contention that the ordinance was unenforceable and void because it exempted from • its- provisions ■ motor busses owned and operated by any ■ street railway company under authority of - the General Laws of the state is overruled. The exclusion and classification were reasonable under the law and the facts. Moreover, article 6548, R. S. 1925, provides: “Any corporation-operating a street or suburban railway or interurban railway, and carrying passengers for hire, is hereby authorized to maintain and operate motor trucks or jitney lines ⅛ connection with their said business for ⅞⅛ purpose of carrying passengers for hire' on the public roads, streets, squares, alleys, and highways within'the corporate limits'Hf any-incorporated city or town under such regulations as may be prescribed by any such city or town, and oh the public roads and highways within five miles of the corporate lim-j its of any such incorporated city or town, under such regulations as the commissioners court of such county may prescribe.” •'■

It is seen that -a street railway company, operating busses in connection with its carrying business, does so under the General Laws of the state. The Legislature having granted permission to operate such busses, the city was not authorized to require a certificate of public convenience and necessity for their operation, although the city could reasonably regulate the operation of same. Besides, mo-torbusses so operated have a regular line of travel, fixed charges, and regular schedules. Not so with appellees. These facts clearly distinguish and divide them into different classes, and so their said exemption does not render the ordinance subject to the objection raised.

Appellees insist that the ordinance is unenforceable and void because in its caption it declared the unrestricted operation of hacks and carriages to be a nuisance and unlawful, for in that the city was not authorized to declare a thing a nuisance which was not so in fact, and that such operation of automobiles was not a nuisance per se. A sufficient answer to this contention is that no such provision appears in the body of the ordinance, but only in the caption. The office of a caption is to declare the purpose of the act, and if the matter mentioned in the caption is not contained in the body of the act, it is merely surplusage and does not affect the matters set forth in the act itself.

Appellees insist that the ordinance is void and unenforceable because subdivision (e) of section 5 declares it to be unlawful to drive or operate any hack on any .street in the city unless and until the Owner or operator of such hack, or the person in whose name the permit is issued, shall have procured and deposited with the city clerk of the city, for each such hack for which permit is sought, a good and sufficient bond or public liability and insurance policy such as might be approved by the city manager as to form and sufficiency, payable to the city for the use and benefit of any person or persons entitled thereto, etc., because said provision is inconsistent with and in contravention of the Common Law of England, and cites us to the case of Genusa v. City of Houston (Tex. Civ. App.) 10 S.W.(2d) 772, 775, as supporting their contention.

We do not believe the cited case is applicable on the facts. In that case the appellants were engaged in the business of renting driv-erless automobiles to the public for temporary use on and over the streets of the city. The appellants did not contest the right of the city to regulate their business operations under subdivision 20 of article 1175, R. S. The specific complaint against the city ordinance was that it required them to execute a bond creating a liability against them contrary to the provisions of the Constitution, and a general law enacted by the State Legislature, and for that reason void and unenforceable. The general law mentioned was article 1, R. S. 1925, which reads: “The common law of England, so far as it is not inconsistent, with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature.” As was said by Judge Lane in that case: “No rule, perhaps, is better settled than that, under the common law of England, except as liability may be imposed by statute or the owner may have been guilty of personal negligence, as, where he has knowingly intrusted his vehicle to an incompetent driver, such owner is not liable for the damage caused by negligence of one to whom he may hire or loan his vehicle, and to whom he has relinquished control over the vehicle, and who uses it for his own purposes. Under the common-law rule, to impose liability upon the owner for the acts of the hirer or borrower, he must have been acting as the agent or servant of the owner.”

Neither the question nor the facts above discussed by Judge Lane is in the instant case. Here the owners were operating their own automobiles — they did not propose to hire the automobiles without drivers, but to the contrary themselves operated their own cars in carrying passengers for hire. The facts do not raise the issue urged. The ordinance in question did not seek to impose upon appellees liabilities in contravention of the common law, but only to regulate their duties under said law. But if it could be said that said ordinance conflicted with said law, the Legislature having given the city of Beaumont the power to control its streets and to license persons doing business thereon for profit, article 1175, subdivision 20, R. S. 1925, it, in effect, repealed the common law as such action is inconsistent with the common law. City of Dallas v. Gill (Tex. Civ. App.) 199 S. W. 1144 (writ refused); Dallas Ry. & Terminal Co. v. Bankston (Tex. Civ. App.) 33 S.W.(2d) 500. A writ of error was granted by the Supreme Court in the last-cited case and the judgment was reversed because of improper argument of counsel. The holding of the Court of Civil Appeals as to the question discussed was approved. (Tex. Com. App.) 51 S.W.(2d) 304.

The city having authority to enact the ordinance, and its provisions and requirements being reasonable and proper, the judgment of the lower court granting and making permanent the injunction should be reversed and the injunction here dissolved, and judgment rendered that said ordinance is in all things valid and enforceable, and it is so ordered.


author: ALEXANDER, J.

text:
    WILLIAMS et al. v. NETTLES.
    No. 1298.
    Court of Civil Appeals of Texas. Waco.
    Dec. 15, 1932.
    Rehearing Denied Jan. 26, 1933.
    S. M. Kerr and J. S, Callieutt, both of Cor-sicana, for appellants.
    Richard & A. P. Mays, of Corsicana, for appellees.
   ALEXANDER, J.

This action was brought by John Williams and four others as the surviving children of E. V. and Nellie Killgore Williams, both deceased, against E. E. Nettles, as the administrator of the estates of the said E. Y. and Nellie Killgore Williams, to recover the title and possession of ten acres of land and to remove cloud therefrom. Briefly stated, the controversy is between the heirs of Nellie Killgore Williams, deceased, who inherited her separate estate, and the representative of the community estate of said Nellie Kill-gore Williams and husband E. V. Williams, deceased, and arose in this manner: In 1890 Mary Ford was the owner of a 20-acre tract of land in Navarro county. On January 7th of that year she gave to her only child, Nellie Killgore, who afterwards married E. V. Williams, 10 acres of said land, and executed and delivered to her a deed thereto for a recited consideration of $1 and love and affection. The deed as delivered conveyed the east 10 acres of said 20-acre tract, but did not describe it by metes and bounds.

The plaintiffs, as the heirs of Nellie Kill-gore Williams, alleged that “through inadvertence and mistake’’ the said deed described the east 10 acres of said 20-acre tract, whereas it was intended to convey the west 10 acres of said tract; that the mistake in said deed was not discovered until the year 1931, about three months prior to the filing of this suit. In 1901 Mary Ford, after the marriage of her daughter, Nellie Killgore, to E. V. Williams, executed and 'delivered to E. Y. Williams, for a recited consideration of $50, a deed to the entire 20-aere tract, describing it by metes and bounds. The administrator of the estates of E. V. and Nellie Killgore Williams sold the east 10 acres of said 20-acre tract to pay community debts. The west 10 acres of said tract is still on hand, and is in possession of the administrator. Nellie Kill-gore Williams left no separate debts. If it was intended by said deed from Mary Ford to Nellie Killgore to convey the west 10 acres, said land thereby became the separate property of Nellie Killgore Williams, and the plaintiffs, as her heirs, are entitled to recover same from the administrator. The plaintiffs prayed thqt the deed from Mary Ford to Nellie Killgore be reformed and corrected so as to make it convey the west 10 acres; that they have title and possession of said 10 acres of land and for the removal of the cloud on their title. They pleaded in support of their title the three, five, ten, and twenty-five year statutes of limitation. The defendant, in addition to filing a géneral demurrer and certain special exceptions, entered a plea of not guilty, a general denial, and pleaded the various statutes of limitation in bar of plaintiffs’ cause of action. A trial before the court without a jury resulted in a judgment in favor of the defendant. The plaintiffs appealed.

The appellants present the proposition that the judgment is unsupported by, and is contrary to, the undisputed evidence. It is their contention that the undisputed evidence showed that at the time the deed was executed by Mary Ford to Nellie Killgore it was intended to convey the west 10 acres instead of the east 10 acres of said 20-acre tract.

The deed in question was executed in 1890 and described the east 10 acres of the 20-acre tract. It was duly acknowledged, and was recorded in 1895. Mary Ford was an illiterate colored woman, and signed the deed by her mark. The record does not show When Mary Ford died, -but apparently she died long prior to the filing of this suit. Nellie Killgore Williams died in 1923 and E. V. Williams in 1925. Consequently none of those whp."tbok part in the transaction by which the 10 acres of land was conveyed by the deed in question testified in the case. The only evidence tending to show that either of the parties to that transaction intended that the deed should convey the west 10 acres instead of the east 10 acres was circumstantial in its nature, and consisted of statements by the witnesses that Nellie Kill-gore, after her marriage to E. V. Williams, claimed title to the west 10 acres, and at times asserted the right to lease the land and to collect the rents therefrom and otherwise exercised dominion over it. There was some evidence tending to show that E. V. Williams at times recognized her right to control and manage the same. There was also some evidence that the administrator of the estates of E. V. and Nellie Killgore Williams had claimed the east 10 acres, as a part of the community estate of said Nellie Killgore and E. V. Williams, and that he had not asserted title to the west 10 acres. On the contrary, there was some evidence 'that E. Y. Williams exercised ownership 'over the property. The evidence pro and con is too voluminous to recite in the opinion.

The general rule is that, in order to justify a reformation or correction of a deed for mistake, the mistake must be mutual, that is, common to all the parties to the contract, and even then the evidence of such mutual mistake must be clear and convincing. Tunnell v. Neill (Tex. Civ. App.) 33 S.W.(2d) 530, and authorities there cited; Dickey v. Forrester (Tex. Civ. App.) 148 S. W. 1181. While there was some evidence tending to show that Nellie Killgore Williams, the grantee in said deed, believed that by such conveyance she became the owner of the west 10 acres instead of the east 10< acres of said 20-aere tract, there was no evidence that the grantor, Mary Ford, intended to convey any land other or different from that actually described in the deed. At the time of said conveyance, she resided on the west half of said tract where her home was situated, and continued to reside thereon with her daughter until the marriage of her daughter to E. V. Williams. After the deed was delivered to Nellie Killgore, she apparently retained it in her possession until it was recorded in 1895. This suit to reform the deed was not filed until more than forty years after the' execution and delivery of the deed. The long lapse of time between the date when the deed' was executed and delivered and the date of the discovery of the alleged mistake, and the fact that the mistake, if any, in the deed was not asserted by the parties thereto while they were living, were circumstances to be taken into consideration by the trial court, in determining whether or not there was a mutual mistake of the parties. The evidence is not sufficient to establish as a matter of law that Nellie Killgore was mistaken in the contents of the deed, and there is no evidence that Mary Ford,- the grantor,-was mistaken. The burden was on the appellants to prove a mutual mistake; that is, a mistake on the part of both the grantor and the grantee. It was not sufficient to merely prove that the grantee was mistaken. The yyeight to be given to the evidence and the inferences to be drawn from the eireumstanc: es were primarily for the trial court. Since the trial, court, by rendering judgment for the defendant, impliedly found that the evidence was insufficient to establish the appellant’s claim, we do not feel justified in disturbing its judgment.

Furthermore, there was no evidence to show that Nellie Killgore Williams did no£ discover the mistake, if any, long prior to her death. If she did so discover it; limitation began to run against her claim, and the appellants as her hqirs were barred thereby. Moreover, the deed in question shows that the conveyance was a voluntary one or a ¿ift, and the general rule is that a grantee in a voluntary or gratuitous conveyance has' no-right in equity to have the conveyance ‘ reformed. Browne v. Gorman (Tex. Civ. App.) 208 S. W. 385 (writ denied).

The evidence was not sufficient to establish that the separate estate of Nellie. Killgore Williams acquired title to the land by limitation. In 1890, at the time the deed was executed, Mary Ford, the grantor, was residing on the land. She continued to live thereon with her daughter, Nellie Killgore, until the latter left the home to live with her husband, E. Y. Williams, about 1891, Since Mary Ford, the' owner of the land, was in possession thereof at all times prior to the marriage of Nellie Killgore, title by limitation, as the result of adverse possession, could not have begun in favor of Nellie Killgore prior to her marriage. If, after her marriage, Nellie Killgore Williams assumed adverse possession of the land and started the running of limitation which afterwards ripened into a limitation title, any title so acquired inured to the benefit of the community estate of herself and husband and not to her separate estate. Hurley v. Lockett, 72 Tex. 262, 12 S. W. 212; Burrell v. Adams, 104 Tex. 183, 135 S. W. 1156; Cervantes v. Cervantes (Tex. Civ. App.) 76 S. W. 790.

■ The judgment of the trial court is affirmed.


author: SELLERS, J.

text:
    PARKS v. POWELL et al.

    No. 4236.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 7, 1932.
    Rehearing Denied Nov. 3, 1932.
    George Prendergast, of Marshall, Lacy & Molhusen, of Longview, and R. E. Allday and Boyles, Brown & Scott, all of Houston, for appellant.
    Wynne & Wynne, of Longview, for appel- - lees.

       Writ of error granted.

   SELLERS, J.

J. C. Parks brought this suit in the district court of Gregg county against N. P. Powell to recover an.undivided one-half interest in certain oil and gas leases on twenty acres of land located in Gregg county, a part of the G. W. Hooper survey, and, in the alternative, alleged that in the event the court should determine that he was not entitled to an undivided one-half interest in the leases, then that he have judgment for a two-ninths interest. One W. E. McKinney was permitted to intervene in the suit, and he and N. P. Powell filed a joint answer in which it was alleged-that in-tervener McKinney was the owner of all the lease interest on the twenty acres of land, and that the defendant Powell had purchased all the leases on the land involved for the intervener, and, by. way' of cross-action in trespass to try .title, sought to recover title to all the lease interest in the land involved and to cancel the leases in the name of Parks as a cloud upon the intervener’s title. The land was owned by nine Wilhite heirs. This appeal involves a one-ninth interest owned by Sam Wilhite and a-'one-ninth interest owned by Alberta Christain Ervin and' Hobart Christain jointly. The two last-named parties are children of one of. the Wilhite heirs, deceased. Alberta Christain Ervin and Hobart Christain were made parties defendant at the instance of the defendant Powell and intervener McKinney, and they filed an answer denying the title of intervener McKinney.

The case was tried before the court without the aid of a jury, and resulted in judgment in favor of intervener McKinney for title to all the lease interest, and dénying to the plaintiff Parks any interest whatever, and he has duly prosecuted this appeal.

The facts, so far as they are material to the errors assigned on this appeal, may be briefly stated as follows: J. C. Parks in person, or by his agent, secured from Sam Wil-hite a producer’s 88 form oil and gas lease covering Ms interest in the land, which was a one-ninth interest, reciting a cash consideration of $10 paid, and a like lease from Alberta Christain Ervin and Hobart Chris-tain, who owned a one-ninth interest together. The evidence is sufficient to show that the cash consideration of $10 recited as paid was, in fact, never paid. These leases were made to J. I . Wilhite and J. C. Parká. However, J. E. Wilhite knew nothing about the leases being taken in his name, and Parks admits that J. P¿ Wilhite was a mere nominal party. These leases were duly recorded, and, so far as the instruments themselves are concerned, they are regular in all respects as a conveyance under the statute. The parol evidence shows that Parks secured these, leases upon the understanding that he would sell them for the lessors so as to net the lessors $65 per acre, and that he was to receive for his services one-half of whatever the leases sold for above the $65 per acre. Some time after these leases were delivered and recorded, N. P. Powell purchased from the same parties for intervener similar leases on the same land for a cash recited consideration of $50 per acre, which was paid; the intervener being at the time the owner of leases on the other seven-ninths interest in the land.

The appellant contends on this appeal that the court was not authorized under the pleadings and evidence to cancel the leases executed to J. P. Wilhite and appellant by Sam Wilhite and Alberta Christain Ervin and Hobart Christain. f

The appellees in their counter proposition asserted that (1) the leases from Sam Wil-hite, Alberta Christain Ervin, and Hobart Christain to J. O. Parks and J. P. Wilhite, having been executed to such lessees as the agent of the lessors, the sale to McKinney was a revocation of the leases and the agency and the cancellation of any interest of the agent; and (2) it is claimed that the leases were without consideration and void, and therefore the judgment of the court was authorized.

We have reached the conclusion that the trial court’s judgment cannot be supported by either of the counter propositions asserted by appellees. It must be remembered that the pleadings of appellees do not seek to cancel the leases by any allegation of fraud, accident, or mutual mistake; nor is there any question of innocent purchaser presented by the record. The appellees purchased their leases with full knowledge of appellant’s leases, and are therefore in no better position than the lessors. Witherspoon v. Staley (Tex. Civ. App.) 138 S. W. 1191.

As we understand the law, an oil and gas lease conveys an interest in the land and is subject to all the rules 'applicable to conveyances by deed. If we are correct in this view, then the leases held by appellant were executed conveyances for they had been executed, delivered, and recorded, and as between the parties such a conveyance cannot be changed by parol evidence so as to give the instruments a different meaning than the language used imports, in the absence of allegation and proof of fraud, accident, or mistake. Rogers et al. v. Rogers (Tex. Com. App.) 15 S.W.(2d) 1037. This being true, it follows that the evidence in this case is insufficient to show that J. C. Parks ever became the agent of his lessors, for to hold otherwise would be to nullify the leases which import a regular conveyance under the statute by parol evidence, and constitute such leases a mere power of attorney.

The case of Rogers v. Rogers, supra, is also authority for the holding that as between the parties no avoidance of a voluntary conveyance may be had merely for lack of consideration when the instrument recites a cash consideration paid as in this case.

The conclusion reached is that appellee has failed to allege and prove a cause of action that will support a judgment of the court for the two-ninths interest claimed by appellant ; but, on the contrary, appellant was entitled under the pleadings and evidence to recover a two-ninths lease interest in the land involved, and the judgment will accordingly be reversed and here rendered for appellant, as to such interest, and in all other respects the judgment will be affirmed.

On Motion for Rehearing.

We wish first to correct an error in our original opinion wherein we stated that appellant Parks was to sell the leases so as to net the lessors $65 an acre, and that he was to receive one-half of whatever the leases sold for above $65 an acre; the correct amount being $60 per acre.

The appellees in their motion for a rehearing insist that the facts of this case, although by parol, are sufficient to establish a conveyance in trust of the property to the appellant Parks for the purpose of permitting Parks as trustee to sell the property .for them at the price of $60 per acre, and, if Parks should sell the property for more than $60 per acre, the lessors were to receive one-half of such excess.

We are inclined to the view that appellees’ contention under the uniform holdings of the courts of this state must be sustained. Hickernell v. Gregory (Tex. Civ. App.) 224 S. W. 691, 694. Such a trust is known as an active trust, and, under the authorities, passes to the trustee both the legal and equitable title to the property conveyed. Montgomery v. Truehart (Tex. Civ. App.) 146 S. W. 284; Fidelity Lbr. Co. v. Bendy et al. (Tex. Civ. App.) 245 S. W. 981. Such a trust may not be terminated at the will of the cestui que trust. Easton et al. v. Demuth et al., 179 Mo. App. 722, 162 S. W. 294.

No time was specified in the trust agreement in which Parks was to sell the leases; therefore it devolved upon appellees to allege and prove that a reasonable time, which the law contemplates in the absence of an agreement, in which Parks had to perform had expired, and the record reflects that appellees have made no such case.

It having been concluded that the property was conveyed under a trust agreement* and not a sale, to Parks, the questions raised' by appellees with reference to their rights as holders of a vendor’s lien will not be discussed, since such rights only arise where there is a sale of the property.

The motion for rehearing is overruled.


author: FLY, C. J.

text:
    CORBETT et al. v. RAYMONDVILLE INDEPENDENT SCHOOL DIST. et al.
    No. 8928.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearings Denied Jan. 18, 1933.
    Jesse G. Foster and B. S. Wright, both of Raymondville, for appellants.
    S. L. Gill, A. B. Crane, and R. F. Robinson, all of Raymondville, and Seabury, George &' Taylor and Graham, Graham & Graham, all of Brownsville, for appellees.
   FLY, C. J.

This suit was instituted by the Raymond-ville Independent school district against Hays Scisson, tax collector, C. M. Corbett, Mrs. F. A. Douthit, Harry Douthit, sole heirs of F. A. Douthit, deceased, Mrs. Mary B. Bradley, personally and as sole legatee and executrix of the estate of E. R. Bradley, deceased, First National Bank in Brownsville, and the Merchants’ National Bank of Brownsville, to recover the sum of $11,000 from Scisson, as assessor and collector of taxes in Willacy county, and his sureties on his official bond or their heirs or legatees, and against the banks for the trust funds deposited with them. Two of the sureties, F. A. Douthit and E. R. Bradley, had died. Scisson collected the taxes and misappropriated them. It was alleged that Scisson had deposited checks in favor of the Independent school district in his own name, and had then drawn out the funds and appropriated them to his own benefit, with the knowledge of the banks. The court instructed a verdict in favor of the school district as against Hays Scisson, in the sum of $11,261.-09, and against the defendant sureties, C. M. Corbett and Mary B. Bradley, personally, in the same sum, $11,261.09, as against Mrs. F. A. Douthit and Harry Douthit, in the sum of $5,000, and it was adjudged that the district take nothing as against the three banks. The judgment limited the amount adjudged against the Douthits to the amount received from the estate of F. A. Douthit, deceased, one of the sureties. This appeal is prosecuted by the representatives of the sureties.

The statement of facts and certain copies of documents used in the court below were stricken from the record at a former day, and an opinion written in the case by Associate Justice Smith, which is hereby reaffirmed, is on file herein. 52 S.W.(2d) 1116.

Mrs. Bradley, tlie Douthits, and Corbett have filed separate briefs; that of Mrs. Bradley containing sixteen propositions, that of the Douthits 58 propositions, and Cor-bett’s 42 propositions.

We consider first the propositions of Mrs. Bradley. The first proposition assails the action of the court in admitting a copy of the record of the bond purporting to have been executed by Scisson and his sureties, on the ground that the law does not grant permission to record such a bond in the county clerk’s office, and therefore there is no provision in the law authorizing the copy of such attempted record in evidence. As before stated, there is no statement of facts, and in the absence of such statement the presumption will prevail that there was other evidence Of the existence of the bond used on the trial, and we are fortified in this presumption by certain testimony of witnesses copied into the bill of' exceptions taken by appellant, and which conclusively, shows that there was other proof of the execution and existence of the bond. .The bill of exceptions, being contained in the transcript of the record, was not stricken out with the statement of facts, and will be considered by this court. We overrule the second and third propositions of Mrs. Bradley, as well as the first, which relates to the inadmissibility of the bond as being proscribed by article 3716, R. S., as to evidence of transactions with a deceased person. It has no applicability.

The fourth proposition assails the admission in evidence of Hays Scisson that he had collected certain taxes and had given no receipt therefor, “no knowledge having been proven of such a statement being brought to the deceased E. L. Bradley or this defendant Mrs. Mary B. Bradley.” Scis-son was the assessor and collector and E. L. Bradley was one of the sureties on his bond, and we know of no law requiring the collector to inform his bondsmen every time he makes a collection, and it was not necessary to show that the bondsmen knew about collections. The admission of the collector was permitted, to show that the collector had made certain collections for which he had not accounted, and it was properly admitted in evidence. The proposition is overruled.

The evidence of W. A. Irwin that he had audited the books of Scisson and found therefrom that Scisson had collected $11,-261.09 more taxes than he had accounted for to the district was admissible. It was not a conclusion of the witness, .but the statement of a fact. The fifth proposition is overruled.

All the propositions of Mrs. Bradley, from the sixth to the fifteenth, both inclusive, are based on questions of fact; and, there being no statement of facts, there is no basis upon which to rest them. The propositions are overruled.

Mrs. Bradley was the survivor, the sole legatee and executrix of the estate of E. L. Bradley, deceased, and, no administration being alleged, it was unnecessary to have an administration of the estate; and, the suit being for an amount within tbe jurisdiction of the district court, that court had jurisdiction of the cause as to her.

The county court did not have jurisdiction of this suit, and it was clearly within the jurisdiction of the district court. That court alone could determine the issues arising between the parties. We must presume that there were no debts against the estate of F. A. Douthit, deceased. All reasonable presumptions must be indulged in favor of the judgment being sustained by the facts. AVe must presume that the estate of F. A. Douthit had been fully administered and that his heirs had received their shares of the estate, and it devolved on Mrs. Douthit and Harry Douthit to show what they had received from the estate. Their first, second, third, fourth, and fifth propositions are overruled.

The bond is written and conditioned as the law provides, as shown by an exhibit attached to the petition. The bond, of course, bound the sureties as well as the principal for the term served by the principal. We overrule the sixth and seventh and eighth propositions.

The exceptions to the petition were properly overruled. The petition was not subject to any of them. Most of them were too technical and filmy for serious consideration. The ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth propositions are overruled.

All of the propositions from the nineteenth to the thirty-fifth, inclusive, as well as the thirty-seventh to the thirty-ninth, inclusive, are based on facts, and the Douthits having neither bills of exception nor statement of facts, they are overruled. The thirty-sixth proposition assails the supplemental petition, and is without merit.

Under the terms of article 2791, Rev. Stats. Scisson was given authority to collect taxes for the school district. The fortieth, forty-first, and forty-second propositions are overruled.

All the propositions from the forty-third to the fifty-eighth, inclusive, are based on facts to which this court has no access, and they are overruled.

The first, second, and third propositions of O. M. Corbett are overruled. The petition was sufficient to show that Corbett was liable on a valid bond executed by Scisson, the assessor and collector of the school district.

The fourth, fifth, sixth, seventh, eighth; ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, ' twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, • thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-first, and forty-second proposi* tions have been adversely passed on, in connection with the propositions of the other appellants, and are overruled. Most of them are based on facts not in the record, and others attack'the bond on grounds without merit.

The judgment is affirmed.