Barker v. Coastal Builders, Inc.

^[00] o not provide rule does

Since Master in which District subpoenas ordering witnesses sitting issue feder- does the the Master

appear before himself the Master rule, hold al we subpoenas. Oth- issue power to has quoted above the rule portion of erwise meaningless. absolutely any undue place holding does

This a resident of He is Relator.

burden on was to be County, hearing Bexar subpoena County command- Bexar county. In ac- appear in that him to ed expressed opinion herein cordance re- above mentioned the order entered custody manding Relator County Sheriff.

Travis et ux.

BARKER BUILDERS, Inc.

COASTAL

No. A-4324.

Supreme of Texas.

June 1954. Rehearing Oct.

On Smith, trespass title, count in Angleton, try and other Mastersón, & Williams pleadings Upon necessary mention. and wife. for Barker jury, judg the trial of the case before Houston, Croom, for Coastal G. Sam respondent, ment against was rendered and Builders, Inc. petitioners in favor of their cross-action possession strip.

for title and On re hearing GRIFFIN, has been reversed Justice. by and remanded the Court of Civil in Dis- suit respondent brought The upon at ground Galveston that the mis Texas, County, Brazoria trict proved law, take was as a matter re- sought wherein petitioners against that the action was not barred. Tex.Civ. strip to a of land its title move a cloud App., 259 S.W.2d 591. cor- in the northeast x 40 ft. 30 ft. located Barkers, application Block half of Lot east in their ner of the error, say of Free- to the town writ of that the Court of Civil Addition Dow’s First (hereinafter Appeals County, holding Texas erred that the evidence port, Brazoria al- 8). was established a matter of law that there of Lot designated the E. If ½ strip description a mutual mistake in the through mistake was mutual leged premises deed from the to Mar- warranty in a contained in the deed been included had Builders, (hereinafter assignment. called tin and wife. We sustain this Inc. Coastal wife, convey- Coastal) to K. Martin W. having Petitioners secured a that Coastal had of Lot ing the E. ½ Special in answer to Issue No. One finding strip at all possession of such remained oral was made between no delivery of the execution and since times Coastal and the to reserve the Martins deed, using enjoying the same and question, it follows there no mis strip; improvements situated on such whereby warranty take deed Coastal grantees their had ac- that the Martins and conveyed the E. of Lot 8 to the Martins quiesced by use and claim of title ½ any exceptions without or reservations. strip, parties and all Coastal to such considering the evidence to determine Coastal, the title claimed notice of whether there is evidence to purchaser. an innocent grantee no Special jury’s One, answer Issue No. grantees under a war- were Petitioners must consider that evidence most favorable exceptions containing or res- ranty deed Barkers, party pre to the were the Grisham, ervations, by one S. B. executed in the trial court. South vailing Blanks v. Grishams were the Martins’ et ux. Hotel, land warranty containing deed grantees under Hickman, Hickman v. exceptions. Respondent no reservations Lewis, Drug Renfro Co. removing the cloud prayed for A.L.R.2d filing title con- cast deeds Elick, Schiller v. strip, reservation of the taining prayed judgment correcting further The record shows Coastal at all from the reforming the deed Grishams to wholly PI. owned Mr. F. times legal full petitioners give so as to effect Freeport, resided Texas and who Mr. original agreement alleged between Houston, Dickey, resided in who W. M. respondent adjudi- and the Martins and to Twombly handled Texas. Mr. the trans- equitable legal and title to the cate ft. property for the sale of the action respondent. strip in ft. x40 Martins, Dickey and Mr. testified that he answer containing filed an never had conversations the Mar- Petitioners denial, plea concerning the guilty”, of “not reservation in general tins the con- tract, correspondence he have any of action nor the cause reformation was did this, four-year of them about matter prior statute of with either barred limita- Ann.Civ.St., fact, tion, deed. In art. to the execution Vernon’s pur- approval FHA’s used to secure the Martins. personal dealings with liad no place of in- chaser as the borrower in Coastal. present when were The Martins application, Kerr, send Gibraltar would official Mr. given structions were as soon FHA notified it would as Gibraltar Building & Associ- Savings of Gibraltar purchaser accept proposed the as re- its debtor Gibraltar), to called (hereinafter ation completion agreed improve- the- the conveyance of plat the from serve the n ments, purchaser the move FHA Dickey would in. could Mr. of Lot E.' ½ inspection prior made final to the had to reserve the instructions swear purchaser improve- moving in. the subsequent When prior given the were to tract completed purchaser ments were purchase with contract signing of the paid moved a certain amount in cash Twombly that testified the Martins. Mr. (in $675.00), our case Coastal was released agreement had any he written never loan, liability reservation; purchaser the that the regarding the Martins became this liable. the Martins about negotiations with all some or three weeks and were were oral two first approval given In our case the Martins; the lot to the prior the sale of to prior July to 1942. On that date Coast- Mar- th,e dealings last he had with the that necessary papers al executed loan to application they signed when tins was $3,650 Gibraltar for the E. on Lot 8. ½ se- to-be used to Gibraltar to.Gibraltar exceptions There were no deed acceptance by FHA of the Martins cure the any papers. securing trust the loan or $3,650 se- payee as Coastal on had loan On that date Kerr of Gibraltar wrote FHA the FHA on the E. of Lot 8. cured from ½ a letter as follows: FHA re- He testified had further on this Martin the amount loaned duced appears that ap- “It at the time the strip. tract reserved because plication on this loan was filed there correspondence with FHA loan shows the was a tool house situated on the -back $3,650 for was made and covered the whole thirty applica- feet of this lot. This any Lot without of-the E. reserva- ½ a great tion was filed with many others He further oral tions. testified his applica- in rush here and in filing with, the Martins could have been tion we made same cover the full prior to the execution of con- changed exception lot, making area of the sale fur- tract of deed. record The. thirty However, back feet. prior July that sometime ther shows plan at time lot submitted did show application made for Coastal this situation. the E. Lot 8 Gibraltar loan ½ any Dickey Company “The reservation. Mr. testi- Avalon Construction without financing agent (of requesting you for the these fied are we write “our houses) Savings & Building was Gibraltar with this connection matter and ascer- tain,if Houston”, the values as shown per- Association would H- James you the official present of Gibraltar with mit to substitute for the Kerr was commitment, they practically the financing. whom did all which covers the area full lot, Generally the business was handled a commitment of like amount following apply excepting thirty manner: Coastal would therefrom the back particular for on a tract feet of said lot. this a loan of land cannot be done If apply Gibraltar. Gibraltar through would without a reduction in commitment please advise us. Also advise us for insurance on the loan. to FHA After' if left FHA, as is and the loan commitment approval of the loan- Coastal name of Avalon purchaser closed Con- for after' land would secure Company improvements for agreed had been struction the amount of erected on present proceed commitment and sold. Coastal would the land improvements. property prospective some this desired sell 'At build secured, purchaser, what effect would it have purchaser sign time a purchaser of- later substitution this aon application to Gibraltár which was to be Company 8 without ex- E. Lot conveying Construction Avalon ½ ception thirty (save lien the back or reservation a vendor’s they should exclude payment purchaser $375). ? secure to said of a note from their deed feet done, payment This also us if deed recited the cash advise this cannot be If assumption them remove note and the possible $300 $375 will be $3,650 note, property with- in the deed of described tool house from same, securing trust identifying the commitment affecting out deed July of trust as the one 1942 re- (Emphasis added.) manner.” corpo- ferred to above. and other Coastal re- Company Avalon Construction rations owned Dickey letter was another the above ferred use continued to garage claimed and by Dickey corporation wholly owned space. reserved However there evidence corporation Twombly through which and approach garage to the Martins’ Dow’s sold houses they also built and improved by was Coastal and that it ran Freeport, town of First Addition to the strip. disputed across one end of the This identification number on Texas. driveway has been used by owners of and the show the corres- reply letter below the dwelling on the E. of Lot 8 at all ½ pondent E. to the loan on the reference times since Martins had their moved-into FHA, 13, 1942, by July of Lot 8. On ½ premises. signed appli- W. K. Martin Director, Ford, C. wrote Gibral- A. District cation to Gibraltar for a loan on the E. tar: any of excep- Lot without or reservations application tions. The date of this is not your of “Reference letter is made record, shown evidently but it was July the existence of concerning 10, 1942, July shortly about thereafter— property. house the rear this tool at approved the date FHA applica- Coastal’s strip “The a 30-foot at exclusion of $3,650 tion for the loan and the date Coast- property rear of be this would not papers al the closing executed on that loan. valuation desirable. The ascribed page application On the last this typical on a lot this was made some signature inch below Martin’s strip integral part this anis 30-foot application is a Twombly’s notation in Mr. typical lot. handwriting “This is a short lot—Block 161”. Coastal never rendered land for “In answer to the in the sec- paid taxation any taxes thereon after your letter, paragraph of ond the sale to Martin. builder should exclude 30-foot property a sale the proposal part Mr. testified as a substitution borrower would not each transaction when there was side note acceptable. necessary It will be herein) note he (the attached $375 made this tool house be removed from this in a mimeographed out and filled memoran- property.” (Emphasis added.) which went dum Gibraltar and which Coastal, July acting On stated the terms of the by W. contract be made Dickey, purchaser; Martins M. a between executed Coastal and (which contract of sale he evidence shows sent in such written memorandum in the working drawn someone Martin for Gi- transaction and that this memoran- braltar) property to the E. of Lot dum containing showed to be the E. ½ ½ exceptions. description no reservations and Lot gave The Mar- and that $3,650 agreed loan, property. September them tins assume On pay 1944, Coastal, some acting cash and execute a small Harry note. Twombly, F. August 1942, Coastal, by vice-president, secretary, On Dick- and its W. M. executed ey, president, corporate Martin, its and under seal a K.W. ux. release to et of the $375 signature secretary, in the warranty its assistant note described deed to the made executed to W. K. This release prop- Martin and Martins. described the Elizabeth, wife, general E. erty as the Lot 8 and warranty deed contains no ½ was located garage land on which the exceptions. the time At reservations not shown he was to be reserved was evidence the cause there the trial plat to be showing any reservation Free- removed from that the Martins had made, (Martin's) deed when his 27, 1946, they deed- and that date port July about delivered policy were and title insurance There property B. ed the to S. Grisham. that no he believed reservation the whereabouts as to no evidence made, meant to and that reservation was testify, either in Martins, did price. reduction was made was dead by deposition.

person or Grisham not intro- trial, of these letters were originals intro- but Coastal at the time of testimony duced in objection) evidence. his (without duced brought by suit given in a forcible detainer oral testimony regarding All repro- Twombly. By this against Barker plat agreement to comes from reserve the testified that he Grisham testimony duced Twombly, testimony as to Mr. as does the garage or not asked if he owned Martin price. The purchase the reduction in the purported reservation) (the garage on the reservation is contra- as to the yes, “he he had deed to it”. every instrument dicted each and written that Martin did not Also Grisham testified affecting transaction. record claiming tell him Coastal someone dispute There is in the record all that Martin garage, told the title to concerning the title written instruments it,” using and that Martin “they were him a than were entered into at later date Twombly claiming an error in Twombly Mr. is an inter- oral discussions. deed. testimony party. ested rule as to the The in Flack of an interested witness is stated evidence, There was introduced with- Dalhart, v. First Bank of 148 National quoted par- objection both out from 628, 495, 633, quote wherein S.W.2d briefs, a in their letter from an attor- ties Employers’ case of Ins. from the Texas ney been Mr. Grisham who had consulted Roberts, Ass’n v. 139 S.W.2d property in dis- his title to the regarding 80 as follows: stated, pute. among In this letter it is “ testimony of interested fur- ‘As things, Twombly that Mr. had witnesses, that, general attorney copies rule is photostatic nished the with right arbitrarily has no correspondence between Martin while Mr. positive testimony of attorney. disregard the through Coastal first of unimpeached and uncontradicted wit Martin was from addressed to these letters witness February 1, 1945, nesses, mere fact that the re- dated Coastal and strip in the result the suit is interested questing garage that the is require the credi stating sufficient to that Avalon Construc- deemed vacated testimony bility his to be submitted Company garage had this using been form, past. jury. Stated another reply storage for some time uncontradicted, attorney is that to Mr. the rule Coastal's Martin party was to uncorroborated garage stated that this have been reserved, excepted will not authorize and that was suit Simmonds v. St. pure oversight the deed verdict.’ did not con- instructed Co., 23, 27, Ry. & letter B. M. such reservation. This further Louis tain Pope v. Beau garage 91 S.W.2d stated Coastal owned 271, 280, thereon, champ, 110 Tex. 219 S.W. that it not covered Moerlein of sale between v. Christian “the contract Martin and Sonnentheil Company, company” Brewing and that was not U.S. entitled 492, 495; garage reply, 43 L.Ed. Mills v. to have removed. S.Ct. Mills, Tex.Com.App., 228 stating Coastal that in dis- S.W. Martin wrote Tinnin, Tex.Civ.App., purchase property v. cussing Burleson 350, application of er- was mentioned for writ Mr. S.W. WILSON, refused; In- & General Traders (concurring). ror Justice Milliken, Tex.Civ.App., Co. v. surance I not do believe there is fact issue here. S.W.2d To controlling me the “ testimony, action reform and deed is plaintiff’s the sub correct ‘The four-year barred limita- statute which has hereinbefore stance of been clear, tion. stated, positive and so unequivocal at issue and por- The mutual mistake is that the rear given under such of such' nature and city (upon developer tion of a lot which the bring it within the circumstances as to of the addition sheds) work was not had his quoted exception rule to the above description excluded from the lot give authorize the trial con developer at time sold the front effect to Great Southern clusive it. portion. This suit was not filed more until Company Dorough, Life Insurance v. than four discovery after the

Tex.Civ.App., 100 S.W.2d mistake. 776; Springfield & In Fire Marine Company & surance Cameron Appeals recognized Wm. The Court of Civil Company, Tex.Civ.App., as„an equitable re- cause action to 788; Simonds v. Oil & Gas Stanolind form but four-year held the statute of 332, 114 Company, 134 Tex. limitation1 applicable because the 226, Id., grantee “acquiesced in the claim” [259 & General Insurance grantor Traders Co. S.W .2d “at all 596] Milliken, Tex.Civ.App., times possession” remained in and used 503, Employers’ Ins. Texas tract. 505. Grantor seeks to sustain this Roberts, 123, ruling Ass’n 135 Tex. 139 ground superior v. also on the 80, equitable 85.” title remained him he and that is the beneficiary of a trust. constructive We believe do not exception grantor parted Mr. within the If the comes with title under mistake, to City rules. above McGuire v. of mutual then all that had left Dallas, 170, 722, 141 Tex. 728. a cause of action to reform. reformation, absence of he would have no title of kind long because as as the deed being There no mistake in the deed operated stood pass unreformed it Martins, to all respondent with met Green, his title. Hamilton v. Tex.Civ well-known and universal rule that App., 166 S.W. agreements To hold prior merged oral otherwise are in later equitable would be to raise rights various Selby written instruments. Woods v. Oil dignity of unwritten land titles con- 895; Co., 2 affirmed, & Gas S.W .2d Tex. trary policy of our 994; law. Com.App., Tate, Tate v. 159, Tex.Civ.App., 15 (6, 8), re wording Does the “Every Art. 5529— independent a different holding, versed on action other than the recovery for of real 137; Tex.Com.App., 27 S.W.2d v. Jones bring forward the old distinction estate” — Risley, Tex. 32 91 S.W. 1027. personal between real and actions? the Court of Civil Formerly equity when and law were ad peals is reversed and the trial court separate plaintiff ministered courts a affirmed. possession- this situation not could file a ary at law action until he good title. GARWOOD, J., Johnston, dissenting. 18 How. v. 59 U.S. Jones “Every years right bring 1. Art. R.C.S. 1925. action next after recovery than real es same shall have accrued and not after- tate, for which limitation otherwise ward.” brought prescribed, shall be within four 804 operation of of the bar the Reformation mistake should C.J.S., 15 76 L.Ed. policy is that He would the statute. The of the law Instruments, -and 67. 7§§ equity reasonable mistakes be corrected with separate suit first to file have promptness while the are fresh and have facts in this would deed and to reform the parties still original the transaction plea of laches. overcome a had to meet and Instruments, years available.3 is not an unrea- Four C.J.S., § Reformation period sonable take action to com in which long since Although 69c. we have grant- court, correct diligent a known mistake. A equity law and in one bined immediately request some or a correction many purposes adhered refused, deed. If that he were he knows rigidity what to distinctions between put actions,2 expense must either be of a suit formerly legal equitable part forget Acquiescence upon it. law in Texas on that basis is settled grantee mis is not a factor since he has to reform and correct deed suit estate”, neither nor recovery burden incentive to correct of real take is “for Durst, 15 mistake. personal. McCampbell but v. 315; Id., 522; Id., Tex.Civ.App. S.W. grantor here some relies Id., S.W. language Strong Garrett, Bank v. S.W. Cleveland State 265, 224 S.W.2d 471. In that case the Gardner, Tex.Com.App., 286 S.W. grantor put grantee possession Company Ross, Pure Oil agreed upon lot both had but the deed con- S.W.2d 1076. wrong tained the tract number. Where the grantee pos- is in suffering mistake possession by grant- Should continued session, knowledge of the mistake will change “for the re- such a suit to one presumed be brought must to his covery of estate” ? Under the old real attention an adverse claim or disturbance , jurisdiction, possession lack divided possession. Strong In the ad- of would have made difference verse claim was asserted four within equity right bring suit in to correct preceding filing next of the suit. In the course, Of to law to ob- deed. a resort case at bar suit was not until more filed possession would have been tain unneces- discovery than four after of the mis- case since sary the facts of this under take and assertion of adverse claim. already I no reason had that. see

(cid:127)grantor upon certainty need for This rests the why system a continued blended- .under titles. The undesirable situation in land discovery by. grantor the after possession 2. land, terms, of perior cordance ceeding and signification, land may dor, tle for performance, to recover object of lands ejectment; Hearst’s “ legal sale, * ordinary very but for convenience itself, desire and that ^[*] * of a suit the for and the title has' often Heirs every respect trespass described but to enforce the land land. this An is not Hemphill: and conveyance a well known the remaining with, by is, delivery legal action by vendee, purpose means an action contract; in The vendee Kuykendall’s the itself; as n equitable acceptation try possession for the recovery of a contract title, could suit a whereas form, and definite for security deed ven- the or a suit title su- recovery may be, not, shadow specific of the of the of the in ac- Heirs, or ti- pro- the for of verse cases ties such within the statute mand. is land itself the ance is suit recovery eration deeds to land is McCampbell « apparent generally * courts recovery to this 40 S.W. by of a only be to * * possession, * * of which is restricted vendee of as this of the contract for the sale- of are is scope to the doctrine kind limitations hold that iji0 of the land.” and another, ”* still for the one the action does Durst, 15 mainly are of a land. To secure title to have or else 322 — Williams: a thing; suit, only there and as the.former provision, specific perform- does not the nn and that barred resort to recover Tex.Civ.App. of stale de- is no limita- object four say not come suits the in such land, it by ad- years’ apply equi- aof that, the op- for-

-gOo later, expressly weeks corre- long failure to reserve the arising from continued n sponding 'strip, including half of the cause known mistakes has been correct garage building, ad- in the sale of the constant effort of the law to avoid quite joining long-standing Be- lot? In the latter sale is unwritten land claims. contract, significant policy, like -that the written proved cause has be a wise this Martins, the written contract omit- we should classi- with the adhere to the traditional reservation, deed, ted mu- whereas the a suit to unlike fication of reform a deed Martins, deed included the reser- being personal tual mistake there- Martins, why And by vation. would the fore barred Art. 5529. years, some four and until were selling the residence to Grisham in mid- GARWOOD, (dissenting). Justice question, raise not even a much less complaint, upon openly After granting the about continued writ error plaintiff-re- occupancy exclusive use and garage action of spondent respondent-plaintiff, four-year barred which the limitation, by way “acquiescence,” statute of itself being the found to be first primary petitioner-defendant, being explanation there one of the lease such as a dispose incorrectly, I license? case— secondary point that the believe— testimony The statement that “the as to findings against (a) existence an agree- the reservation is contradicted each and ment to (and exclude the half of a every written instrument in the record garage building) dispute (b) the affecting the transaction” sounds con- including mistake of the latter in the deed naturally, every vincing. But case of a mis- supported evidence, contrary were involves, sense, ain take contradiction holding Appeals. of the Court of Civil between the' instrument mistake, surface, argument On the and if that sort opinion against court’s unimpressive, contradiction’ is evidence existence actually mistake, prevent one can so as to have little doubt the latter being law, mistake from established as a matter occurred. fact able counsel then, indeed, petitioner for the obviously mistake is the one instance rather refrains denying jurisprudence, all our wherein the the oral be- existence original purchaser, Martin, tween the of facts can never established as a matter respondent-plaintiff appro- But in the sense which is vendor was law. actually says situation, He priate made. “Undoubtedly, the actual there matter 'any was discussed between (the with Martin” contradiction instrument in Twombly, testified, witness who so the record and erstwhile thus at the uncontradicted least to of admittedly simply that extent the mistake. The fact- told the evidence truth). And certainly, the mistake when we same was made not consider strip question unnaturally the in was all instruments exe- contin- uation a corresponding sale, of at or the time of the strip reserved cuted about all contemporaneously more or less them having by most of been drawn adjoining which, single lot quite and that Gibraltar the lender the trans- garage action, naturally substantial building tool more concerned with (ante- dating garages forming part anyone the of own interests than the those of else new respective perhaps lots) residences on the occupied save the F.H.A.' The release greater part strips, by respondent-plaintiff the of both the the reserva- second Martins, tion would more than its being natural lien “side-note” the absence. Why should the ga- vendor sell executed of a mere release some two after half rage building sale, naturally at the extreme rear of the not be studied a lot already which party executing had a new whole garage? the it with reference to why, if And the reservation or not in- it mentioned a small not reser- tended, vendor, would the less than two vation intended have been made in the modify commitment so to F.H.A. the on for Certainly went Martin deed. strip, refusal July 13th as to exclude the the release, acquiescing in years after two F.H.A., 16th con- July written garage use possession and sale the lot without ques- (describing tract of never releaser building justify as to any reservation) are such until his reservation tioning the oral refusal the F.H.A. inference that Grisham. negotiations with respondent- by the an abandonment caused (if not “instru- documents And there are any arrangement plaintiff oral itself of the mistake. clearly point to ments”) which consequent execution strip reserve the covering both of drawings, What of of such a without mention the contract improvements, question lots two evidence light of all the reservation. In the the reser- Gibraltar which were sent case, circum- to me that the seems pages re- clearly on the first shown vation adjoining lot to sale of the stances of the agree- shortly oral prior to the spectively, conclusively the infer- refute Walkers Twombly? the Martins ment between The written sales-contract suggested. ence bottom at the And of the notation what (it was signed the Walkers form sent to Gibral- report Martin the credit 25, 1942, July vendor) by the on signed stating, “This is the same time tar about days Martin con- nine after some Surely Twombly told short lot?” tract, (of the made no reservation likewise reservation was extent truth to the strip which the east half corresponding Martins, as he ad- with the “discussed” located). building garage did, his also believe .mittedly we should the evidence that clear from It seems made notation was commitment in that of the F.H.A. terms presence knowledge with the him too, reser- instance, to mention failed that, only Martin. Not but we have Presumably trust from the deed of vation. the above-mentioned fact also on the Walker respondent-plaintiff Martin and his negotiations between yet mention And failed to it. lot also Grisham, vendee, first raised the Walkers, 13th deed to the August strip whether Martin owned only days the deed twelve after executed the interested litigation or and caused Martins, the reservation. contained parties go to the deed. view of the why a vendor suggested, should before As deed, why any ques- have been there garage half of a build- mere thus reserve a matter, about the unless Martin had strip, if corresponding he had ing and the which swore made the already parted with the other consciously did? I recall not a word of evidence

.he corresponding strip on the Martin half and respondent- anyone connected with the lot? anything rights plaintiff about its case, point in doubtless As to the main period between the execution fully, now to discuss it is little reason there negotiations the deed in 1942 and importance although both Martin and Grisham in 1946. between four-year whether the The test of interest. is, moreover, no is, There contradiction of respondent-plaintiff bars statute testimony Dickey of course, seeking it is to enforce of price in the decree, sale to Martin and wife or, by equitable title an higher been but for would have equitable right $150 mere of reforma- convert a strip question; to reserve the in equitable title. What into tion nor is there contradiction of their by pleader may denominated action corresponding regards as the sale cloud, reformation, of removal —whether very shortly to the Walkers thereafter. trespass try title or otherwise is not ques- right of in The nature material. argues princi- petitioner-defendant The is what counts. tion pally of the admitted that the dates “discus- quite Martin, clear from long-standing This is the reservation with sion” of court, of both those 10, request holding our (written Gibraltar) 1942 decisions 'Jüly

807.1 McCampbell analogous validity of applicable, to that wherein the g. the statute e. 522, parol -by Durst, Tex.Civ.App. v. 40 S.W. transfer of land is influenced 15 dism., 315, possession juris., wr. of error for want matters .such as transfer of 955; making improvements. 147, 91 Cleveland Hooks 40 State See S.W. Gardner, 122, Tex.Com.App., Bridgewater, v. Bank v. 286 S.W. 111 Tex. 229 S.W. 173, g. 1114, equit inapplicable (e. A.L.R. The matter of holding those it 18, O’Neil, four-year as 107 Tex. S.W. able title related to the statute Gilmore v. Davis, Company 113 Tex. is also v. dealt with in cases as Texas trust such 321, McIntyre, Snyder, 134, v. Binford v. Thomason 144Tex. S.W. 220, 254 Follett, Mortgage State 113Tex. S.W. McDonald v. specific Corp. Ludwig, per as in v. as well Wood, 955). formance cases as such v. Johnson . 157 S.W.2d 146 difficulty aspect in this of the case misinterpretation slight has arisen from a case, posses- But in the instant while the of the such language decisions as the respondent-plaintiff sion alone would Corp. case, State in which Mortgage it was protect statute, bar from the of the that, “Defendants in error and their mistake, plus the fact that no con- in effect having posses ancestor continued in actual paid, sideration was the Martins lots, sion of the their suit was not barred question, plus in the retention and years’ the four statute limitations”. possession, maintenance does raise a Ross, Payne See Tex.Civ.App. also v. equitable question serious title v. Young, 30 S.W. Howard Tex. respondent-plaintiff distinguished as Civ.App., wr. of er. refused equitable right a mere of reformation. The error,” Garrett, Strong “no one, and, v. course, reversible is a close 148Tex. S.W.2d 471. Court of improve- lacking there is the element of Appeals evidently, my opinion- Civil ments, important so statute of frauds erroneously, considered these However, decisions cases. I think the afford facts authority proposition that, for the where sufficient basis to the claim of party seeking reformation cancella equitable appli- title and otherwise happens tion possession to be in four-year of the land does cable statute not control. involved, applica that fact alone will defeat I would affirm the of the Court four-year statute, though of the even Appeals. possessor equitable legal title, equitable merely right. Rehearing. Motion for On appears unjustified

Such a view in the light of the first decisions above cited. PER CURIAM. opinion Greenwood wrote the Justice Corp. In its Mortgage rehearing State motion for well re as that Davis, points Company spondent that in its in Texas which out brief cites . presented immediately by sep the former Civil Court of following the language quoted. assignments point above He both the also arate wrote there McIntyre, supra, Thomason warranting no evidence which he was submission carefully explained Special Company jury Texas Issue 1 to the No. requiring title, finding case as legal equitable, in answer against in order “owner” to that issue was land overwhelm might four-year preponderance ing barred statute in evidence. Since (cid:127) apparently point presents question, involving fact, his action latter reformation (cid:127) equitable remedy. jurisdiction or some other is As without shown this court to decide ; O’Neil, supra, finding by Ap- Gilmore v. the it. The the Court of matter Civil ,- possession important of is peals in such that there was no cases evidence warrant- only bearing Special as a ques- ing circumstance on the the submission of No. -. Issue the.,- of The finding title. situation is includes the somewhat answer of unnecessary delay in termination of overwhelming the the against thereto

jiiry evidence, or, litigation. fre preponderance in stated, the evidence that quently usually question The in this fact arises es finding. The support the sufficient Appeals sus- A’ of Civil situation: Court cases, practice in such of rule tablished point tains no evi- of error that there is of the that Court court decides when this jury probative support a dence of force to reversing and ren Appeals erred Civil and, judgment hav- verdict or trial court evi ground of dering the case so, ing point of er- done does not rule on that dence, of judgment to reverse is is judgment ror or con- verdict court the trial the .case to court and remand trary great preponder- weight Lowry Anderson-Ber trial. v. a new This then ance the evidence. court of Co., Tex. ney Building upon analyzing grants a writ of error and 357, Birdette, State v. holds, contrary evidence concludes and Gray, 141 Tex. State of holding the Court of Civil Puckett, Bowman v. 175 S.W.2d sup- is peals, judgment the verdict or 571; Najera Great 188 S.W.2d probative The ported by evidence of force. Co., 146 Tex. Pacific Tea & Atlantic question then arises: should we remand Corp., Hopson v. Gulf Oil Appeals for to the Court of Civil the case consideration and decision of sufficiency of the evidence Appeals challenging the reversed and 'The Civil Court of point. we remand to the trial court for or should on another Its this case remanded therefore, should, affirmed. It retrial? be júdgment judgment accordingly ordered that is V, 6 of the Article Section Constitution set be rendered this Court heretofore Ann.St., Texas, ju- makes the Vernon’s judgment of the Court aside and of Civil risdiction of Courts reversing Appeals, the trial court’s Civil question and final on the exclusive remanding a new sufficiency insufficiency of the evidence trial, be affirmed. jury support a verdict or trial court judgment. Under the it is Constitution opinion Dissenting Associate Justice duty prerogative and exclusive solemn CALVERT, in which Associate Justices Appeals to of Civil exercise the Courts join. and WILSON GRIFFIN situations we jurisdiction. scru-

pulously jurisdic- observe that exclusive per But in the cases cited cu- tion. CALVERT, Justice. opinion riam this court has invaded that from the rendered on dissent I through jurisdiction the use a so-called respectfully rehearing and enter motion for “assumption” “presumption” or lately developed protest against my Appeals either had decided practice by this and-developing court of re- question particular (when in a manner type case to the manding trial court opinion nothing there was to show giving retrial without Courts of had), that it would it have so de- opportunity Appeals an Civil to decide if it it. By cided it had reached whatever the verdict the judg- procedure may name the be called and contrary trial is ment may reached, device result whatever .preponderance weight and great can nothing is and more than as- practice indirect in- evidence. exercise, sumption, this court of ju- the exclusive vasion of constitutional júrisdiction pass on a oi which Appeals, the Courts of risdiction of Civil jurisdiction under the it has Constitu- ' ’ by, contrary to, but is commanded tion. spirit wording Rules Civil n Procedure, cited led us is a decisions into disservice ad- positions- wholly inconsistent and anomalous justice in that ministration tends-to ' We have their provides: law. conclusions.” procedural Rule 453 field of error consistently, a that “Conclusions of held, that fact and law each point- support assigned material as to in the “no evidence” error

there is Appeals does not Court of judgment -Civil shall or trial court made verdict thirty days that the filed within a contention after the “include” decision and cannot support case, the of the to if case be one in. is “insufficient” which the evidence Supreme ap- jurisdiction Hall Music Co. v. Court has judgment: or verdict of an ” * * * 857; plication Robinson, 261, writ 117 Tex. S.W.2d Rule error. Co., provides: 127 454 “In judg- Motor Sales cases where Ochoa v. Winerich Liberty 542, 416; Film ment of the trial court shall be reversed and Porter, 49, remanded, the cause Ap- S.W.2d 136 Tex. the Court of Lines Civil peals Smith, 982; judg- shall state its reasons for Wisdom ment.” Petroleum Co. v. S.W.2d Parker 164; and

Laws, 430, 242 150 Tex. Appeals may, and While a Court -Civil cases, yet, that cited we have held does, question often decide both law Of point can and ruling a “no evidence” on question “no fact evidence” and the ruling does “include” a on “insufficient opin- original “insufficient evidence” in its Moreover, point. well es evidence” it is case, compulsion ion in a it is under no to question that a “no evidence” tablished held, question decide the fact if it has on a question is a of “insuf law question, the law is no there evidence question; ficient fact evidence” is a Choate support judgment. to the verdict or Co., Ry. v. San & A. 91 Tex. Antonio P. may fact ques- that it have decided the law Ry. G. S.W. International & N. erroneously, however, deny should not Vallejo, Co. v. 102 Tex. 113 S.W. it right to or it relieve of its solemn Express Baggage Electric S.W. & duty to decide the fact issue and announce Ablon, Co. v. 218 S.W. required by in writing conclusion Porter, supra; Liberty Film Lines v. Rule or to if determine the trial Casstevens, court’s Childre v. judgment should be reversed and the cause the effect of cited remanded because it deems the verdict Ap cases is when Court of Civil contrary to be the weight peals only has question, decided law preponderance evidence, and there- presume will or assume that it decided also upon to “state its judg- reasons for the question. a fact required ment” Rule 454. It has been Procedure, Rule Texas Rules of Civil suggested having ruled there was no optional makes it with this court whether evidence Courts Appeals, of Civil on remand, cause remanded Court Civil undoubtedly hold evi- Appeals provides: or to the trial court. It dence insufficient. I do not deem it so “If light of Court of Civil fact that cases hereinafter peals reversed, Supreme shall be Court to be cited will show that in numerous such may held, remand the they case either Court situations remand Appeals of Civil from which came question, or to them the fact that the evidence ” * * * the district court for another trial. was sufficient to jury’s verdict When read in gov- connection with judgment. rules or the court’s But be that as it erning Appeals, however, may, Courts of Civil it is no sufficient reason for denying they brought the-right obvious are excusing into them them from the greater harmony by a remand duty enjoined conferred and on them by the Appeals fact instant situa- Constitution and the Rules of Civil Proce- tion. Moreover, Rule 451 directs that “The Courts if of dure. the Courts of Civil present- Appeals Civil shall decide all issues to avoid wish they situation both, by proper assignments may ed them by deciding error do so questions in party, either whether such issues be the first instance. .On the hand, they law, fact writing permitted, and announce in prefer, id de-

810 docket, wending'their tortu- in- ed trial in first :-citíe--only-the 'question the law Ap- way of Civil ous back to the Court the fact on judgment stance reserve n question- will procedure This peals a second on time. acted this court has after until ' more require year a two or question. the law disposed of. No finally get the case are say that we no reason There is Appeals’ of Civil matter what the Court the follow decisions to the cited bound by appeal, could have ruling on the second opinion. It is per curiam course of the year or more earlier ruling made the same procedure. Neither purely matter of opportunity. only it an if we had afforded in property rights nor are rights vested practical What has been said about the Moreover, our deci not all of volved. procedure effect of two courses of procedure those the the followed sions have theory speculation. Its sound- pure 125 S.W. Long Long, cases. ness, fact, the decided in in are is demonstrated conflict, and others direct 2d 1034 is in in the results spirit. cases. Let us first notice part least conflict at have been remanded Co., those cases which Kirby Henry v. Lbr. See Appeals. the Courts of Civil rehearing S.W. on 218 S.W. Tex. Ferguson, 137 Harris v. Kirby Henry, 178 S.W. In Co. v. Lbr. Baker, Baker v. Appeals held that the Court of Civil appears thus that even 724. It contributory negli established evidence disposed be governed we are gence as law and reversed a matter of purely proce rule of stare decisis plaintiff and judgment trial court for the matter, we have choice which dural defendant. This judgment rendered for the will follow. line of decisions we ruling court held the Court Civil erroneous, and, Appeals original on to be thought given reasons Lest it be submission, judgment majority reversed are of differing above Appeals character, and affirmed let us now purely technical judgment court. of the trial pro- would better which course consider rehearing, judgment On S.W. 451. justice finally mote administration affirming judgment the trial court’s litigation. disposing of and the withdrawn case remanded the Courts of Civil -remand to If we . Appeals might Civil so that it Court of directly pass on courts will peals -those pass questions exclusively ju within its they If hold -.sufficiency the evidence. risdiction, principally that the evidence was sufficient, the trial court’s evidence support jury finding insufficient to i litigation 'will affirmed / contributory negligence. there was no If hold the evidence end. at an .will-.be 363. Within ten months S.W. thereafter party know insufficient, losing will : litigation was terminated a holding -. new different evi- obtain unless can Appeals of the -Court of Civil (contrary to ,- case, retry his be futile to. dence would presumption are indulge) wont to - and usual litigation, normal and .the that the evidence was sufficient to n By situation, be at an end. remand- will 224 S.W. 814. verdict. Courts, Appeals the Civil liti- ing to the : Harris, Ferguson normally ended within will thus gation Appeals the Court of Civil held that a vital this court’s after six months issue was established hand, fact if we remand evidence the other On entered. - lawof "pre- as a matter reversed a our trial the trial court on case to judgment, but because Appeals court Civil errors sumption” the -Court of charge remanded insufficiency retrial. reversed disagreed with This court point, if it had ruled on Court of the evidence Appeals’ holding (cid:127) the fact way knowing Civil wheth- parties have as a matter of established one law remand- is a sound without presumption er .the n seeking newa case to the ed the Court of Civil retrial on a place for crowd- examine, of Lowry history assignment Now permit pass attack it to on an to let.us the, Co., sup cited Anderson-Berney Bldg. sufficiency evidence to ing the of the Ap Civil majority opinion. 156 The Court port Tex. finding. the fact 137 sup to peals liti was no evidence held there three months Within S.W.2d 135. was, plaintiff port jury finding a a that finally terminated gation had been employment and injured in his Appeals (con the course of holding the Court of Civil 401. frequently in reversed and rendered. 143 S.W.2d trary presumption so to holding and disagreed was This court with that the evidence dulged court) judgment of the 'Court 159 S.W. reversed sufficient to sustain the verdict. presump but, Appeals, indulging the Civil 2d 950. Appeals would tion that the of Civil Court Baker, In Baker v. insufficient to also have held the evidence Appeals was no held there Court of Civil support the trial finding, remanded to findings certain evidence to sustain 459. The 161 court. S.W.2d This court and reversed and rendered. case was reached the Court retried and but in- holding held be erroneous to years Appeals nearly two after again Civil upon remanding trial court stead of the trial court.. had to this court remanded Ap- presumption Court of Civil appeal of Civil' the Court On second insufficient, peals the evidence had also held Appeals attack- assignment overruled the case to the Court Civil remanded sufficiency even of the evidence ing the Appeals pass on the to instructions on,this “testimony trial: though it found insufficiency 143 Tex. assignment. on the substantially the same as it was Ap- 724. This the Court Civil S.W.2d S.W.2d 985. former trial.” 177 peals and sustained- did within six months presump- exactly contrary to the ruling was assignment. The case 188 S.W.2d 733. ap- first indulged had this court a somewhat dif- relitigated Moreover, peal. if the of Civil Court Tex.Civ.App., theory. S.W.2d ferent ex- peals permitted exercise its to been 244. appeal the jurisdiction on the first clusive 236, the Long Long, 98 S.W.2d two been terminated litigation would have Appeals appeal, there was no held of Civil trial and years Court earlier and a second support jury’s verdict of expense litigants, to evidence with their added pass an as It did not on unnecessary. influence. undue would been have insufficient evidence was signment that the Hallibur Indemnity Ins. Co. v. This court Texas support jury’s verdict. history. In that casé the Court of ton has similar reversed Appeals there was no held that court Court of Civil Appeals but Civil remanded support jury finding that the' insufficiency assignment. evidence to pass on employee plaintiff 96, 125 injured Court 775. This court'ruled held the evidence insured. 209 S.W.2d Appeals then erroneous, but, indulging holding the1 jury’s verdict

was sufficient presumption Ap the Court of Civil of the trial court. affirmed the dismissed, peals also have held the evidence writ of error insufficient, remanded the case to the trial 798. Thus the. ended, S.W.2d 677. The pur intents court. to all litigation was after this retried and reached the four months court case was Court of poses, within question. again Appeals more than two on the no evidence Civil had ruled more, then ruling assign That court overruled an later. isWhat sufficiency question attacking sufficiency ment evi Civil contrary contrary (directly what we to what exactly would dence this court presumed be if we had followed had theretofore it would it to presumed do) and have majority judgment. the trial court’s adopted by the in this affirmed course years, But it took two .2d 499. S.W sec- case. evalu- Civil..Appeals’’ par- Court of own proper for' the appeal a second ond trial fact of the evidence on the might well ation holding ties to obtain within n two because that the of “insufficient evidence” months been made' the final ar- arid that court alone is made Court of remanded had been question. biter of that first instance. Appeals in the Civil specific prayer, respondent case, in this the record Turning now to rehearing its motion for is that this case right to re- respondent’s appears that it Appeals be remanded to the Court of Civil based mistake was -mutual form for may pass so that court on its of error disputed agreement that the alleged challenging sufficiency of the evidence. .jury found conveyed. The not to be was prayer ought That granted. to be The re- was made no such spondent put should not be to the time and Court petitioner. The rendered was expense trying again its with the and remanded Appeals reversed of Civil possibility jury again will make the parties. In the course necessary for lack of finding same and the Court of Civil had occasion opinion that court peals uphold will finding having sufficient say “the evidence sufficient in the In the evidence. mu- that such of law as a matter establish absence of new rights evidence the occurred”. tual mistake parties question on the involved can be however, main obviously, Quite 595. determined now a remand to the -Court by the court dealt with question law Appeals. of Civil opinion, In my for the respondent’s suit nature of reasons given, the case should be so re- question or the deed to reform was one manded. equitable and enforce establish one to regarded the issue of title. This controlling issue- mistake as the mutual case, opinion of the court in the analysis made an exhaustive Griffin

Justice demonstrate the .evidence to mutual mistake not establish

evidence did question of the of law. The a matter evidence, sufficiency of. the sustain RAINES, Appellant, C. L. alleged agreement finding that by the Court been decided made has not n Texas, Appellee. The STATE of and, Appeals the Consti- under of CiH-1 It tution, this court. decided cannot be No. 27047. my opinion that we should therefore Appeals (cid:127) Court Criminal of Texas. question by- indirection decide Civ-, to the remand the case Court should June 1954. may its exclu- it exercise Appeals that il Rehearing Denied Oct. If in the decide it. jurisdiction sive analysis evidence and light of our thereof consideration its mature conclude should weight contrary great verdict evidence, preponderance hesitancy reversing the have no should remanding the case re- opposite con- reach the it should If trial. event affirm. either clusion, should n what law impediment, evidence”

“no embarrassment source (cid:127)and

Case Details

Case Name: Barker v. Coastal Builders, Inc.

Court Name: Texas Supreme Court

Date Published: Oct 20, 1954

Citation: 271 S.W.2d 798

Docket Number: A-4324

Court Abbreviation: Tex.