*1 “equal within and uniform” Taxes person class when no the Constitution taxed, territory persons at a is taxed higher district than same rate others thing when the the same values objects of taxes are the same whomsoever City v. be. Norris or whatever owned Robinson, Waco, v. of Tex. Civ. Tex. Adair App. 275, denied. W. writ 25 S. uniformity prescribed “The standard prop the value of Constitution propor erty, cannot be in the same taxation property, unless the value of the tion to value of same is ascertained Ry. etc., Co., Mo., Lively v. standard.” supra. the acts intention “The consequence. delib is. Such were done of no charged part of officers erate action held law must be enforcement of the with the appellee state, act of the to be the was entitled enforce to relief Id. the excessive assessment.” ment of shall be that taxes rule laid down municipal applies equal and uniform City v. Austin of Austin state taxes.
well as etc., Co., Gas-Light, S.7 W. 69 Tex.
200. opinion Being sus- evidence trial court’s tains the plain- ground tiffs, of discrimination the trial affirm the we court. J., sitting.
HALL, et al. et al. v. TEXAS CO.
BEARDEN
No. 12453. Appeals Texas. Civil
Court May 30, 1931.
Rehearing July 11, Denied
DUNKLIN, J.
appeal
dis-
This
is from a
Young
in three
trict court of
rendered
separate
were consolidated
one,
nu-
tried as
merous interventions and cross-actions
in which there wore
*3
parties.
of
multitude
by
One of those suits
0.
interest
Lee Bearden to recover title to
in 525 acres of
land devised to
the last
father,
will and
A. L.
testament of his
Bear-
den, deceased, as hereinafter
or-
shown. In
recovery,
der to establish his
of
and as.a
part
sought by
title,
of his suit for
he
an ac-
equity,
tion
in the nature of a
re-
bill of
view,
judgments
to set aside three
which had
court;
been rendered
him in the same
being
one
in cause No.
Ima
which
Raby
Jean
and two others of his
had
children
recovеred title from him as his heirs
that,
allegation
judgment
dead;
being
he was
another
par-
7494H3,
rendered in
No.
cause
rights
titioning the mineral
of
525 .acres
land devised under the will of
tween the devisees and their heirs and
father be-
as-
signees ;
another
and
ren-
7473-B, purporting
dered
fix
cause No.
the
and
of all the devisees and their heirs
assignees,
Bearden,
Mrs.
and
surviving
min-
wife A. L.
tract,
decreeing
erals in the 525-acre
and
among
thereof
them.
Another one
the consolidated
suits
Ritchie,
E. B.
the estate
compos
mentis,
Mrs. Annie E.
a non
Bearden, deceased,
widow of A. L.
to recover
portions
title to
same tract and like-
seeking
judgments
wise
ed in said
vacate
render-
Nos. 7494-B and 7473-B.
causes
Another of the consolidated suits was
Griffin, formerly
Bessie Lee
Mor-
Bessie Lee
gan, granddaughter of one of the devisees of
Bearden, deceased, joined by
A. L.
band,
her hus-
designated
T.
J.
who will be
plaintiffs,
sought
she,
cross-action,
in which
also
judgments
last
to set aside the two
above mentioned
recover title to the
to.
tract,
the same
been de-
L. Bearden.
vised to her A.
Sayers,
Worth,
McLean,
&
Scott
Fort
Falls,
Kay- Akin,
Zively,
Bouldin &
&
Wichita
each
the three
Wells,
appellants.
of Mineral
sought
gas
oil
cancel
vacate
leases
tract,
portions of
on
the 525-acre
one of which
Wilson,
H. R.
H. Garrett and
both of Fort
S.
E..Myers,
made R.
was
estate of
Arnold,
Worth,
King
Marshall &
and Fred T.
Mrs. Annie
Graham,
Carrigan,
A. H.
of Wichita
all of
mentis, and R. E. Bearden and Pleasant Bear-
Falls,
Graham,
McFarlane,
&
McFarlane
den, as executors of the estate
L.
of A. Bear-
Bullington, Boone,Humphrey King&
Kil-
den, deceased,
Nancy McChesney.
to Miss
B.
gore
Falls,
Rogers,
&
all of Wichita
W. B.
Another was a lease to the Panhandle Refin-
Pate,
Hamilton,
Dallas,
G. R.
of Fort
Harry
Company
ing
Hines,
executеd
Olney, Seay,
Worth,
Thornton,
Seay,
T. G.
Tidwell,
appointed
Y.
receiver
R.
7473-B,
Lipscomb
Worsham, Rollins,
&
Malone
acquired
and which lease was later
Ryburn
Burford,
Hincks,
Dallas,
&
all of
Can-
Company,
Texas
one of
defendants in
tey, Hanger
¡McMahon,
Ray-
Worth,
&
Fort
suit.
Myers,
Falls,
Penix,
M.
mond
of Wichita
S. A.
Graham,
Creighton,
and J. R.
of
Wells,
of Mineral
Prior
rendition of
appellees.
judi-
were numerous transactions and
quest
such;
qualify
be recited be-
four of them
which will
cial
cause
plead-
living
but
should all four not be
involved
numerous
par-
disqualified
ings
legal propositions
them
time
different
reason
.at
my
probated,
qualified
will is
the ones
then
fohr
ties to
the suits.
living
qualify
shall
as executors
land,
here-
Title
the 525 acres
carry
will;
out the terms of this
in con-
as the land
inafter
be referred to
will
acquired by
troversy,
A.
Bearden
L.
my
“It is
will that no other
action shall
convey-
time
At the
December
ance
was his
vested
spouses.
1906.
my
had in the court in the administration of
him,
Annie E. Bearden
was made
prove
estate other than
to
inventory
record
this
acquired
wife,
became
appraisemént
and to return an
community
of the two
my
claims;
of
bond
estate and
list
occupied
held
security
required my
ex-
family
until
date
A. L.
and his
ecutors.
July 24,
death,
of
He left a
which occurred
*4
“Codicil.
which was
will and testament
la^t
“Whereas, I,
Bearden,
County
A. L.
of the
Young
duly probated
county
in the
court of
Young
Texas,
and
heretofore
State
have
county
county,
the
at
in which
he resided
my
bearing
day
last will
date
12th
part
in which
was
and
time of
tract
death
his
February,
1917; Now,
A. D.
I do
writ-
this
By
controversy
located.
ing,
my
I
which declare to be a codicil to
said
inter-
one-half
the undivided
terms of will
part thereof,
will
rect
be
to
taken as a
will and di-
was devised to
land
testator
est
that when sale and distribution оf the
Bearden,
wife,
her use
E.
proceeds
any part my property
thereof of
life,
during
remain-
with the
and benefit
der
my
is made
interest or
executors that the one-tenth
grandchildren in the
and
to
children
part thereof,
di-
said will
proportions:
following
one-
An undivided
paid my granddaughter
rected to be
to
Bessie
children,
eight
in each of his
tenth interest
Morgan,
paid my daughter
Lee
fin,
be
to
Grif-
Lou
Hill,
Hill,
namely,
B.
Pleas-
wife N.
Pariso
Morgan,
in trust for the said Bessie Lee
to
Bearden,
Griffin,
Bearden,
wife
E.
Lora
R.
ant
be held and invested
said
Trustee
Claiborne,
Bear-
Griffin,Hattie
Lee O.
L.T.of
Morgan,
use and benefit of the said Bessie Lee
McSpad-
McSpadden,
den,
of Carl
wife
Willie
paid
use,
and to be
maintenance
Lee
oiit
said
for the
Trustee
Claiborne,
den,
wife of G. C. Clai-
Lucille
and
education of the said Bessie
borne;
one-tenth interest
an undivided
and
Morgan,
require
as her
as
needs
and
Morgan,
granddaughter, Bessie Lee
to his
may appear to
the interest
Bessie
said
deceased,
Morgan,
daughter
and an un-
of Ola
Morgan by
Trustee;
said
and when
grand-
ten other
interest to
divided one-tenth
children,
Morgan
marry
the said Bessie Lee
shall
alike,
and share
who were
share
twenty
years
shall
when she
age,
become
one
Cleopatra Wilson, the deceased
children of
remaining
the balance
with the said trus-
Following
daughter
testator.
are other
paid
tee of said trust
shall
estate
to
provisions
the will:
Morgan.”
said Bessie Lee
my
“And
named are
executors hereinafter
7, 1918,
On
October
admitted
was
hereby
my
and instructed to sell all of
authorized
probate,
application
to
of Pleasant Bearden
probate
live
as soon
of this
stock
after
Bearden,
they
appointed
and R. E.
and
were
my
they may think
will as
the interest
to
administrators
estate with
an-
the will
estate,
pay
prd-
distribute and
out the
and to
they duly qualified
nexed. Thereafter
as
my
of such sale
heirs and devisees
ceeds
by taking
statutory
such administrators
oath
named, according
to their
above
giving
court,
fixed
and
the bond
will;
and, my
ex
same
ecutors
as soon after the death
the terms
this
duly
McSpad-
approved.
which was
Carswell
hereby
empowered,
and
authorized
Claiborne,
ex-
den
P. S.
also named as
and
wife,
my
said
will,
apply
ap-
failed to
ecutors
they may
Bearden, as
deem to the
join
applica-
pointment
such,
as
or to
estate,
my
sell all the real
estate
interest of
and all
to
probate
of the will.
tion for
property
remaining,
personal
then
same,
execute,
appointed
and to
ac
make title
filed an
administrators so
proper
estate,
appraisement
knowledge,
inventory
deliver
deed or deeds
purchaser,
property
conveyance
duly approved
of
to be sold
to
my estate;
and which
which
listed
by parcel may appear
controversy
community
in bulk or
tract
my
best
to be
interest of
executors
of A.
and Annie E. Bearden.
L.
proceeds
they proceeded
sale to
ad-
serve as
Thereafter
my
among
paid
throughout
subsequent pro-
said above
divided
ministrators
grandchildren
pro ceedings
in the
named
estate.
children
relative to the
my property
portion
is hereinabove will
Bearden,
time of the death A. L.
Mrs. Annie
theAt
$ n
*
to them
ed
insane,
wife,
E.
appoint
sons,
hereby
my
since;
hopelessly
“I
constitute
insane
and
and at the
has been
ever
she
my
approxi-
Pleasant Bearden
sons-in-law,
Claiborne,
R.
McSpadden
she
date of the trial
years
age.
mately
and P. S.
Carswell
have been
There
joint
will,
estate;
separate guardianships
this
executors of
re-
of her
three
appointed,
executors,
having
application
guardians
filed an
three
appoint-
Myers,
Young county,
first,
who was
court of
R. E.
No. 655
wit: The
court,
and who served
that
en,
ed October
which the
of A. L. Beard-
deceased,
being administered,
Frank H. Wilson
when
until October
was
him,
lat-
appointed
to succeed
mineral
the land
until the in
continued to act as
ter
between herself and all other
July 16, parties
Ritchie,
tract,
of E. B.
interested
the 525-acre
apart
order to set
to her the interest- which
acquired
Upon
she had
under her lease.
quali-
appointed
guardians
Each of the
filing
application,
by pub-
of that
a citation
giving
by taking
the oath
fied as such
the bond
approved. During
duly
provid-
lication was
issued
served as
duly
court, which was
fixed
statutes, requiring
ed
in-
respec-
of their
the terms
estate,
specifically
terested in the
nam-
appointments,
Wilson
tive
ing
devisees, including
all the
Lee O.
required
reports
stat-
their annual
Myers,
also
guardian,
Annie Bearden and R. E.
They
duly approved.
utes, all which were
Morgan
Bessie Lee
and Lou
granted
of her
trustee
and the two executors
including
many things,
the ex-
to do
appointed by
court,
who had been
support, mainte-
penditure
for the
of funds
pear
Monday
July, 1924,
on the first
then
Bearden;
nance,
Mrs. Annie
and care
application
and there to answer the
so made.
Nancy E.
Miss
lease to
the execution
application by
An answer was filed to said
R.
above;
McChesney,
the invest-
referred
Myers,
of the estate Ahnie
*5
belonging
in Lib-
ward
to the
funds
ment of
erty
Bearden,
compos mentis,
E.
non
and R. E.
Bonds;
оrders
division
to execute
Loan
Bearden,
executors of
one
the
the estate
controversy;
produced
in
land
of oil
Bearden,
sep-
of A. L.
deceased. Later a
oil;
gauger
make con-
employing
for
by
arate answer was filed
both the executors
money
connections;
pipe
lend
line
for
tracts
alone,
jurisdiction
county
in which the
of the
ward;
belonging
con-
of the
the estate
to
court
to determine the issues was chal-
estate,
fences, pay
ward’s
on the
taxes
struct
lenged,
ground
on the
that such
etc.
county
was in
in
the district court and not
the
by
applications
respective
made
Prior
court,
Nancy McChesney
that
appointment
Myers
guardians,
as such
and Wilson
participate
entitled to
in said
as a
dev-
proceedings
had been taken
heir,
isee or
but
her claim was
that
adverse
E. Bearden for
Mrs. Annie
trial of
the
parties
the estate and
all
entitled to
.to
chapter
lunacy,
beginning
provisions of
under the
will;
share therein under the
and her title
4267 of
Rev.
with article
challenged also on
to the lease was
ground
applica-
Nor did
of 1925.
those
Civ. Statutes
prior
ap-
that
order
court
Annie
any allega-
guardianship contain
tions
pointing Myers
guardian, Mrs.
proceedings had been taken
tion that such
therefor.
those
Bearden was
no
Bearden had never been
appointing
And while the orders
by
county
upon complaint
mentis
court
findings
guardians
Mrs.
recited
that
by
provided
statutes,
made and trial as
mind,
of unsound
of conviction
contained
Myers
appointment
and that therefore the
lunacy prior
findings
guardian
preliminary
as her
without
foregoing
statutes. But be-
thereto under
step being
void,
taken was
as was also the
appointmеnt of E. B.
fore the
Ritchie
by him thereafter.
lease executed
There
arrested, tried,
guardian, Mrs. Bearden was
opposing
par-
grounds alleged other
tition,
July 24, 1924,
mind,
person unsound
and found to be
On
to be now noted.
application
provisions of those
all in accordance with
statutes,
parti-
appoint-
application
for the
and the
duly
granted;
heard and
the order
tion was
granting
allegations of those
contained
ment of Ritchie
preliminary
containing
same
recitals
ap-
proceedings,
order
argument of
and
counsel were
evidence
proceedings
pointing him recited
duly considered. The order con-
and
heard
been taken.
appointment
further recital
tains the
commissioners
qualified as such
Ritchie had
After
partition
divide
so
the
the
day,
county
ap-
on the same
court
and
apart
McChesney
set
to Miss
land as to
authorizing
pointing
to institute
by
lease;
him made
order
conveyed
her
her
and
interest
herein, which was one
his suit
commissioners,
partition
made
the
required
above,
suits referred to
and
reported-to
the consolidated
to
involved
that order and
represent
his ward
all the
duly approved.
parties
court,
All the
in the other two
consolidated
application duly excepted
resisting the
suits;
employ
action,
counsel for that
and also to
gave
ap-
and
of the court
notice of
steps
purpose.
taken
Ritchie
All
Young county,
peal
to the district court
suits were under
virtue of au-
three
as cause
7494HB.
where it was docketed
In that court
granted
thority
him.
so
who resisted
Nancy
county
11, 1924,
pleadings
partition
On
Miss
McChes-
in the
court
June
substantially
presenting
gas
ney,
the same defenses as
oil and
lease had
tо whom the
urged
county
by Myers,
guardian,
court. The case
and the those
executed
judg-
August
On
was tried
court and a
tbe district
entered an
court
reciting
appearance
granting
through
Bearden,
order
ment was rendered
Frank
Annie
friend,
Wilson
of
the
all the
under
the executors and
devisees
as next
to intervene
leave
per-
Bearden,
suit;
day
plea
Mrs. Annie
and' on the same
in-
guardian,
Myers,
Bessie
tervention
ing
son
Lee
was filed
act-
Annie
Wilson,
Morgan, minor, by
through
friend,
Frank
Frank Wilson
as her next
friend,
adopting
next
Mrs. Lou
trustee
also
suit,
prayer
oppos-
praying
denying
and likewise
for a cancella-
ing parties
McChesney
tion of
of the
held
for cancellation of
lease
lease
and cf the orders
parti-
McChesney,
decreeing
appointing Myers guard-
Miss
rights
ian of
tion of the
between the
in the entire tract
the estate of Mrs.
mineral
Annie Bearden
the
awarding
ordering
approving
parties;
Mc-
to Miss
lease
McChesney.
Chesney
rights
him to
Miss
one half
the mineral
royalties
tract, subject
reserved
entire
Myers,
individually,
R. E.
for himself
also
in her lease in favor of
alleging
plaintiffs’ petition,
filed an answer to
rights in
half
such mineral
and the other
appointment
qualification
entirety
and Pleasant
R. E.
their
as executors
and his actions
knowl-
thereunder all with the
devisees
and all the
named
edge
plaintiffs;
and consent of
subject
Bearden, deceased,
the will of A. L.
Al-
he had no individual
in the lease.
Mrs. Annie Bearden
to the life estate of
so that
"had
he as
va-
contested the
half;
finding
also
lidity
McChesney
proceed-
lease
susceptible
partition
kind
ings in the
court and district
to
partition
init
accordance
commissioners to
McChesney
Miss
mineral
The commissioners
with
pointed
decree.
rights
сontroversy,
referred
the land
sepa-
six
tract into
divided the entire
above,
fa-
in which
was'rendered
made,
by plat
awarded
rate lots shown
Miss
Nos.
named in the
McChesney.
vor of Miss
McChesney
mineral
to lots
McChesney
Miss
answer
filed an
1, 4,
to the other claimants
plaintiffs’ petition
pleaded
in which she
2, 3,
On
lots
validity
guardian
proving
tion,
*6
July 26, 1924,
an
court
the district
entered
authorizing
ap-
and
orders
and
decreeing
report
approving
a
and
order
by
way
her lease. And
of cross-ac-
ap-
partition
therewith. No
in accordance
alleged
validity
and
she
of her lease
judgment
prosecuted
peal
from that
plaintiffs’
sued
of
claims as^a
for removal
parties.
of
against
title,
all
and
cloud
the
Mrs. Annie
as her
as
each
her
1924, discovery
June,
During
a
the month of
plaintiffs, naming them,
against
and also
1,000
brought
feet
in about
north
well was
Myers,
against
E.
and
R.
Bearden
controversy, and
of land
the tract
east of
soon
oil
boundaries
guardian.
/
producing
of other
a line
thereafter
suit, and
Prior to the institution of
near the north and east
was drilled
wells
year 1915,
deserted
Lee O. Bearden
about the
his wife and
producing
tract, all
oil
of that
family
state and
and left the
quantities
paying
distant
about
feet
in
from
avoid
until
never
about the month of
thereto to reside
returned
therein
In order to
the Bearden boundaries.
August,
time
1928. At the
drainage
of oil
the tract
suit,
more
and for
institution
necessity
urgent
controversy,
arose
an
prior thereto,
years
where-
than seven
his
development
of that tract
the immediate
family
of
unknown to
abouts were
thereon,
drilling
and in
of
order to
wells
the
meet that
ity
suit,
plaintiffs
al-
named in
other
emergency, and to insure the valid
they
diligent
though
in order
had made
search
might
oil leases whiсh
of
join
him
him
with
have
to communicate
as
The last
and
end,
accomplish
suit in
No.
cause
suit,
plaintiff
success.
in the
without
but
was instituted
the district court
7473-B
tidings
him
written
of
was a letter
July
county
23, 1924,
Young
on
in the
sister,
Claiborne,
by him his
Mrs..Hattie
all
and
names of the executors
the deviseees
September 1,1918,
government hos-
while in a
Bearden, deceased,
A. L.
will of
under
including
assigns,
Arkansas, concerning
pital
es-
father’s
Bearden,
and their heirs and
Lee
reading
I
tate,
“You ask me if
as follows:
against Nancy
plaintiffs,
E. Mc-
as
Kennedy
willing
ad-
as
Will
to act
were
ministrator.
Myers,
defendants, pray
Chesney
as
R. E.
and
get
suppose you all could
I don't
ing
of a receiver
with
vested
for-
you
all
will be
what
all do
man and
a better
leases
oil
on the land
to execute
bet-
I think would be
me. Tho
seeking
controversy,
a
and
cancellation
family
get
one
outside
ter
make them
outsider.”
sortie
lease,
McChesney
ground
bond,
give
were
as tho
Myers guardian
and the
order
by him were void for lack of
lease executed
him,
Having
unable to
locate
been
county
appoint
court
also,
parties plaintiffs
included
as one
guardian
until
Annie E. Bearden
him as
as well as their own.
his benefit
adjudged
first been
insane under
had
Myers,
of the estate
R. E.
referred to above.
statutes
behalf,'also
Young county
in-
court
her
E. Bearden and
Annie
filed, plication
Nancy McChesney in
ad-
E.
After the
the suit.
tervened
B.earden,
appointed V.
F.
L.
separate
ministration of the
estate of A.
order
the
Hinson
represent
friend,
deceased,
made
the dis-
friend
next
upon appeal
suit,
he,
next
her
trict court in cause
No. 7494-B
and
her in the
judgment,
be-
all
plea
in her
from the
things
were
intervention
filed
Nancy
legal,
McChesney
valid and
cross-ac-
and that
Mc-
E.
And Miss
half.
Chesney
lease,
entitled'upon
addition
have
her cross-bill
her
for a validation
tion
peti-
plaintiffs’
gas rights
general
her title to oil and
under
leas-
plea
her
denial of
ato
es,
ip
apart
and
judgment
to the lands set
her in
said
was rendered
A final
tion.
prose- partition
quieted
proceeding,
appeal
case,
was ever
from which no
parties
including
suit, naming them,
to the
recites
so renderd
cuted.
suit,
Bearden,
parties
Lee O.
appearance
this
and
all those
of all the
nothing
Bearden,
them, including
and take
her.
naming
Lee
attorneys,
person
parties,
all other
(g) Following
foregoing findings,
Myers,
appearance
individ-
R. E.
and. the
description
specific
embodies a
Annie
ually
of the estate
and as
lands,
rights
mineral
mind, person of unsound
E.
by McChesney
covered
lease
thereto-
person
Bearden, in
of Annie
apart
parti-
foregoing
fore set
Wilson,
friend,
through
Frank
her next
proceedings;
apart
tion
being
so set
minor, by
Griffin,
friend
her next
Bessie
4,1,
to as
ac-
referred
lots Nos.
also Mrs. Lou
Frank Wilson and
plat
cording to the
the commissioners
attorneys;
of her
trustee
partition,
description
lots
also a like
appearance
Annie
defendant
2, 3,
rights
the mineral
in which had
Bearden, by
duly appointed
ad
apart
plaintiffs in
been set
7494r-Bin
litem,
Following
recitals
F. V. Hinson.
prior-partition proceedings;
judg-
parties,
appearances
of such
plain-
gas rights
apart
oil and
so set
to those
including
findings,
numerous
ment embodies
subject
Annie
tiffs
estate of
to the life
following, in
substance:
conveyed
which had been
duly
(a)
le-
R.
McChesney.
That
had been
guardian Nancy E.
gally appointed guardian
(h)
findings
follow
Then
further
compos mentis, by
Annie E.
county
suit,
speedily
purpose
duly
county,
Yоung
had
court of
settling all
be-
controverted issues of title
qualified as such.
finally ending
tween them and
those contro-
(b)
had
theretofore
E. Bearden
That
versies,
partition
agreed
a further
.division
duly
legally
person
un-
of the mineral
set
theretofore
sound mind
same court.
*7
the
apart
them,
Nancy
by
to
terms whidh
the
(c)
Myers,
guardian,
McChesney
been
relinquished
plain-
That
had
R. E.
had
to the
Nancy
duly
make and
rights
authorized
execute to
to
tiffs all
tofore allotted to
mineral
in No.
there-
her
lot
McChesney
by
and
E.
for which she had
lease
partition,
the oil
claimed
her in
also
the
and
paid
rights, title,
consid-
reasonable
in
the
all her
and interest
and to the
eration.
Annie E.
in
minerals
estate of
in
Bearden
2, 3,
and
had
lots
which
theretofore
(d)
plain-
That Annie E. Bearden and the
plaintiffs
pro-
apart
partition
the
in
set
to
the
adju-
acquiesced
tiffs consented
and
in
to
the
ceedings;
agreement
which
and settle-
said
insanity
and
dication of
of Annie Bearden
duly approved
the
was then
ment
fair and reasonable
Myers
appointment
the
of R.
as guardian
concerned;
all
estate,
Myers
of her
such
and
held out
judgment
fixing
was
and
rendered
the titles
public
Nancy
to the
and to
E. Mc-
respective parties
with
the
accordance
Chesney, who relied thereon.
agreement.
that
(e)
money paid by Nancy
That the
E. Mc-
(i)
partition in
Then
a decree of
follows
Chesney
by Myers,
for said lease was
agreement
with
accordance
and in which
that
guardian,
plain-
turned
over to
apart
set
the mineral
which were
thereof,
tiffs received
six
benefits
and for
including
plaintiffs,
de-
Lee O.
were
years Myers
acted as such
with
proportions
in them in the
creed to be vested
fixed
knowledge and consent of
Annie E.
Bearden.
will A. L.
plaintiffs
case,
and all
in the
whom are
all of
estopped
denying
validity
finding
par-
now
judgments
(j)
from
was a
There
further
that
proper-
E.
E.
partition
and decrees
which Annie
to a
ties were entitled
susceptible
Bearden was
ty,
and R.
insane
that the same
but
was
appointed
guardian;
partition
kind,
was
as her
in order
and that
make
validity
estopped
denying
necessary.
same,
ar.e also
from
a sale of
the whole
by Myers
of the leases executed
as such
appointment
(k) Then follows
R. V.
guardian.'
receiver
sell the
set
Tidwell as
interest so
(f)
gas apart
report
That
plaintiffs
the oil
his
and make
rights'
court,
pro-
in the land in
that
action
to the end
plain-
among
ceeds
divided
tbe
of such sale be
Pleasant Bearden also
as execu-
executed it
according
respective
pur-
interest.
to their
tiffs
tors of the estate.
instrument
That
(However,
ported
pectant
re-
signers
no sale was .ever made
on its face to bind the
as ex-
ceiver.)
heirs and
Bear-
devisees of Annie E.
den, mother,
apparently
was intend-
(l)
denying
provision
There was a further
warranty
might
covering rights
as a
ed
open
apart
oil
to Annie E. Bearden the
acquired
be thereafter
from their mother
gas
property
to the
on
so set
wells
devise;
descent or
re-
and it also included
plaintiffs
possession
plaintiffs’
or to interfere with the
signers
validity
recognized
citals that the
“the
es-
life
of the same
reason of her
guardianship proceedings
on the es-
tate therein.
tate of said Annie
non
necessity
(m)
findings
Then
follows
mentis,
validity
judgment
proper-
development
for
ty
immediate
7494-B,
mentioned, upon
cause No.
above
apart
so set
for oil
said Annie E. Bearden
law.”
hеirs at
gas,
drainage
therefrom
order to' avoid
adjacent
through
property
wells
on
drilled
O. Bearden instituted his
pur-
thereto;
accomplish
February 15, 1929,
and in
order to
pose
sought
appoint
to he
it was
a receiver
to set aside the
charge
explore
take
of said tracts and
wherein
children
recovered
oil,
appoint-
royalties
up-
belonging
same for
ed
and for
on
and R. V. Tidwell was
the oil
himto
by
by
allegations
receiver,
duly qualified
dead,
of a
he
he was
because
taking
giving
lack of
the oath and
fixed
the bond
court to render the
court,
same;
power
being
with further
to execute oil
he then
alive and the
gas
property
appear-
any
leases on
and to col-
rendered
in the absence of
arising
knowledge
lect the rents and
ance
revenues
therefrom.
him and without his
prayed
consent. And in that connection he
(n)
finding
There was a
further
recovery against
for a
children
years
E. Bearden was 84
old and' was entitled
had recovered
him.
gas
from
$500
receive
oil and
leases to'be
so made
grounds
receiver.
The
of attack
7473-B,
September
rendered in
and
ments
20, 1924,
causes Nos. 7494-B
On
court,
the district
alleged
judg-
reason
of which he
-approved
cause No.
a lease
Tid-
void,
well,
(a)
were
receiver,
substance:
That
Refining
to the Panhandle
acquired jurisdiction
the court never
over
Harry Hines,
Company and
acres of
262½
him or his
involved
controversy.
land
out of the tract
The con-
by any
law,
method known to the
he
payment
sideration for said lease was a
of a
appear
did not
nor
one-eighth royalty
produced
case
was he served
of all the oil
any citation,
nothing
and knew
of those
$68,500
vhe land
cash,
additiоn
thereto
proceedings,
and did
$51,375
not authorize
one
out
lessees’ fourteen-
appear
way
and never in
produced
land,
rati-
sixteenths of
oil
from
same, (b)
Myers,
ap-
fied the
peared
portion
That R. E.
who
lessees’
after deduct-
one-eighth
ing
royalty.
Annie E.
total
composmentis,
rep-
duly
authorized to
so taken
lease
filed for record on
her,
resent
and that
September 20,
the order
assigned
of court
1924. The lessees
pointing
prior
him was
Company,
corpora-
void because
to such
the lease to the Texas
tion,
prior
application
iswho
one of the
defendants
therefor,
us,
company pro-
now
Bearden had never
before
*8
lunatic,
develop
a
ceeded at once to
in
taken
accordance with
the lease so
provisions
chapter
produced
large quantities
and
oil. On
Tidwell
therefrom
Rev. Oiv.
Statutes, beginning
.day
executed,
with
the same
article 4267
sub-
lease
and
was
articles,
sequent
(c)
resignation
receiver,
in
tendered
as
That
land
con-
troversy
Bearden,
accepted,
which was
was the homestead of
forthwith
and immedi-
E.
Annie
ately
appointed
qualified
partitions
and the
Prank H. Wilson was
and
receiv-
divisions
judgments
in
it shown
was
er to
him. Wilson
in
succeed
as
those two
cases
contrary
by
by
filing
court,
the bond fixed
which
Constitution and statutes
homestead,
duly approved
September
protect
of the state
was
on
which
1924.
(d)
partitions
money
over from
That said
He took
Tidwell the
also in
and
were
violation
Bearden,
contract which he
terms of the will
had received from the les-
of A. L.
lease,
gave
as
which
in
consideration for
sees
after
royalties
Annie E. Bearden a
and there-
life
Company
cоntroversy
one-half of(cid:127)
in
collected
Texas
the tract
the
for
and
provided
provided
the additional
and
oil
no action
should be had
produced.
in
as the
the lease
same was
in the administration of
On
the estate other than
day
September, 1924,
inventory
appraisement
the 22d
sees named in
the return of
all the devi-
and
Bearden,
belonging
a
of A. L.
thereof and
list of claims
there-
(e)
appearance
other than Annie E. Bearden and
to.
The unauthorized
Lee O.
for him
Bearden,
ratify- by
plaintiffs
a
executed written contract
other
in cause No. 7473-B was
ing
confirming
by
(f)
by
so
and
lease made
a fraud
him.
Tid-
That
reason of the
well,
receiver,
proceedings
as
and
causes,
R. E. Bearden and
in said
taken
two
unless
riage relation, by leading
aside,
in'
deprived of his title
believe
has been
lie
set
the
duced therefrom which has
pro-
man,
he was
he
of the oil
then an
when in fact
unmarried
tract
and
wife,
living
Bearden,
had a
been converted
Hattie
then
defendants,
in Texas
tenth of
and from
of one
whom he had never been
in the sum
divorced;
$115,000.
de- divorced and
(g)
meritorious
a
was never
That he had
daughter
intervener, Myra
minor
action
and to the
Eliza-
of said
fense
both
county
authorizing
putative
beth
Me-
was the
court
child
marriage;
Chesney
supposed
lease,
all
that soon
have defeated
after the
mar-
and would
riage,
Bee O.
if
had known of
Bearden
taken therein
he
deserted the intervener
pendency;
chargeable
making
provision
child without
their
and he was not
support,
negligence
present
failing
such de-
and that ever
with
fenses
since he left
them he has failed
refused
he
notice thereof.
and
because
no
contribute
had
anything
support;
to thеir
that the child is
Ritchie,
guardi-
as
suit
B.
years
now eleven
old and without
means
non
the estate of Mrs. Annie
support and that
the intervener has been
compos mentis,
August
was
on
instituted
compelled
support
doing
her from her own earn-
Bee
of Mrs. Bessie
and
cross-action
ings,
expenses
and
so has incurred
husband,
joined
an-
aggregating $3,000. The mother of
child
suits, the three consolidated
sought
recovery against
a
Bee O. Bearden for
September
both
on
instituted
expended
the amount which she
for the
judgments
mentioned,
the-
the suits last
causes
support
child;
and maintenance
sought
Nos.
7473-B
at-
749-1-B and
judgment fixing
she also
the amount
grounds substantially
on
the same
tacked
those relied on Bee
above,
maintenance,
support,
recited
O.
during
education
minority
of the child
Bessie Bee
attack was
Griffin’s
charge
property
and lien on the
or
jurisdic-
First,
grounds:
these further
lack of
rights
be awarded to Bee O. Bearden
court
tion
district
to vacate
in- the trial of the suit.
probate court; second,
suit
Upon
purpose
trial a
of a receiver-
was for
7473-B
sole
rendered
granting
jurisdic-
prayed
ship ; third,
the relief
exclusive
that inter-
vention,
lease,
consent of
tion to
since
the inter-
Bearden;
vener
mentis,
Bee
accordingly
Bee Griffin
Bessie
and oth-
minors,
therein;
fourth,
intervention will not be further
er
she
Frank
were interested
noticed.
was a minor without
parties,
As to all of the other
there was a
disqualified
Wilson
for her as
to act
jury,
parties
trial
attorneys,
before
appearing
were inter-
next
ested
fin to
was
petition
because his children
friend
McBean,
attorney,
W. P.
property,
also Mrs. Bou Grif- pearing
as was
ad litem for Mrs. Annie
represent
trustee,
her as
she
because
E. Bearden
court;
; fifth,
showing
likеwise
interested
evidence,
after the conclusion of the
the court
pending
administration
lack
defendants;
instructed a
for the
verdict
necessity
sixth,
such;
lease sold
returned,
accordance
the verdict
inadequate price.
grossly
Tidwell for a
And
instruction, judgment
obedience to that
Ritchie,
ground
a further
B.
of attack
rendered as follows:
guardian,
plaintiffs,
part
was fraud on
.(a)
plaintiffs
Denying
in all three of the
shown.
hereinafter
parties
eases as
all other
consolidated
to the
say
judg
deem
We
it sufficient to
to set aside the
adversely
suits who were
interested
ments rendered
causes
7494-B
Nos.
by'the plaintiffs
7473-B;
expressly decreeing
asserted
those
the
suits filed
as valid
joined
issue was
both
and also the orders
plain-
allegations
all the
relied
R.
E.
of
sought by
guardians
relief
them. Further-
MeChesney
and Frank
tiffs
H.1 Wilson as
es
more,
Nancy
denying
defendants
and tate of Annie E. Bearden. Also
Company
pleaded
recovery money
each
the two and
Texas
the
four
pel
other re
estop-
years’
except
recovery
limitation and
statutes of
lief
in favor of
O. Bear-
Bee
judgments,
special
Company
por
former
*9
based on the
the
den
Texas
royalties
accruing
of the
hereafter
defenses.
tion
lease
on the
company
royalties
held
and the
plea
in
of intervention
the suit
was a
There
have been
which
withheld
the
Com
Texas
by Mrs. Jennie Es-
of Bee
awaiting
pany
dispo
the final
for his benefit
Bearden, in
of herself
as
behalf
and
tella
next
of this case.
sition
daughter, Myra
of her minor
friend
(b)
According
allegations
prayers
Granting
the
of the
Bearden.
Texas Com-
Elizabeth
upon
Nancy MeChesney,
pany,
par-
plea
E.
all
were sustained
the
and
in
trial
1917,
—which
against
proof
12,
plain-
June
ties on their cross-actions
uncontroverted
the
—on
California,
tiffs, including
under
in
inter-
the
will of
the state of
the
devisees
the
’
vener,
Bearden, deceased,
time
and
E. Bear-
whose name at that
was Jennie A. B.
Annie
assignees
Cook,
good
in
and the
and
faith
den and their
heirs
Estella
induced
a'supposed
died,
into
who have
O. Bearden to enter
mar-
those
removal
Bee
devisees
plaintiffs
of the claims asserted
the
dition of the
the
not within
suits,
upon
powers granted by
titles of
as
those three
clouds
law to the
render
court
respective complainants
ing
fraud,
it,
accident,
in those cross-ac-
or
mistake.
Judgments
Ed.)
(5th
par. 325,
tions.
Freeman on
p.
par.
649;
333,
667;
pp. 666,
United
(c) Awarding recovery
Lee
in favor of
Walker,
States Use of Wilson v.
109 U. S.
Raby
his other
Bearden
two children
Jean
and
Ima
3 S. Ct.
457 gen- invoking reme- to latter county sorted without have the court stall “The tion: they dy.” court; prohate jurisdiction aof eral shall guardians wills, appoint probate Chapter 12, just to, of the same ti- referred compos lunatics, persons minors, idiots, non tle, provides proсeedings necessary for drunkards; grant mentis, let- common adjudication persons, the trial and and the of insane administration; testamentary ters following are articles ‘contained in executors; transact accounts settle business chapter: persons, appertaining 'to deceased “Upon any 4267: information Article lunatics, persons minors, idiots, person mind, county is of unsound or including drunkards, mentis, settlement, partition and common drunkard, is an habitual without a is distribution es- guardian, good if satisfied that is a apprentice persons; to tates minors, deceased jurisdiction, cause for the exercise of his provided law.” as county judge shall, either in term time Title 69 Rev. as amended Statutes vacation, proper inor a warrant issue (Vernon’s seq.), 4102 et Ann. Civ. St. art. person commanding officer brought such be many relating guard- provisions to contains place before him at time a chapter ianships, first article of and the 1 named warrant.” such county jurisdiction in of that title vests county “Any may Article 4268: who officer courts al court is made that constitution- the same terms as any person copn- discover ty who resides in the county provision. articles the mind, to be unsound and without a by requiring record court of a guardian, shall information file thereof with in the be entered therein to county judge, proper shall issue a who -proceedings court; minutes for ' warrant.” appointment guardian shall be a begun by application prescribes in the written 4269 Article what shall be shown presented county filed; be court which in the information so article re- although gives preference right person, quires empanel judge jury it to a to deter- person person kin nearest of un- mine whether is such of unsound mind drunkard, sound mind оr habitual and the anor habitual drunkard. application jurisdiction allege must such facts show as 4271: case be Article shall docketed “The court; requiring county plaintiff, in the name of n publication filing citation to be issued person against is whom information the filed as application. By of such article 4111 defendant, proceedings and appointment guardian a venue governed same shall be trial rules that therein person a unsound is fixed mind the coun- ordinary govern ty person court where such resides. And county court.” . provided is article it that: jury Article 4272: “If be found regular court, “At a term of after no- is of that the defendant unsound or is mind required by law, may pro- tice as the court drunkard, charged, an habitual shall ther son the court appointment guardian. ceed of a Be- proceed, immediately fur- per- and without appointing guardian, fore a the court must be notice, appoint a satisfied: such defendant same person “1. That a whom a manner as in the case of minor.” sought appointed minor, is be either a is procedure It person noted that the whole is be mind an unsound or habitual chapter above, under referred seems to drunkard. contemplate that actions thereunder shall jurisdiction “2. That the court has only be taken the event that theretofore no case. appointed guardian has been insane person appointed guard- “3. That to be drunkard, habitual or since in article disqualified ian is not is to act such and jurisdiction given is to is- * * * entitled thereto. step preliminary sue a warrant as a for ad- persons “4. That the person judging a to be insane or habitual protected. are be determined a requisite All issues herein shall person “is drunkard whenevеr such without hearing, the court on unless guardian,” same limitation is con- jury demanded, pre- is but it shall not be conferring tained in article to such that there has county officer to file information jury trial, and’judgment been the verdict that against person county judge before the person mind, is of unsound is an habit- a basis for the of a issuance drunkard, person required ual nor is such limitations in warrant. Those those stat- at the trial. plainly imply utes court has remedy provided appoint “The herein cumula- provided Chapter hereof, preliminary proceedings, tive of that absence of guardianship persons expressly provided quoted provi- for the mind unsound is drunkards, mjiy habitual sions be re- of article 4123. *11 458 action, providing of it sets App.) state a cause (Tex. not Civ. Furr Greenwood v. * * * powers. Compton (Tex. a the court’s case within forth 332; Civ. v. 251 S. W. Ward 129; App.) County (Tex. Moore adequate bring v. pleading and Warrick 203 S. W. “A is which 950, App.) faulty subject S. it was 291 W. Civ. matter before the court be person many has been first tried respects, a held that unless even in averments of its in material tain the upon cause, yet mind to be unsound and verdict elements of the sus- guard jury, judgment against impeachment. of a of a The absolutely person void. judgment, therefore, open or estate is ian of not be an would However, merely deci that it noted is be character attack of that because there appeals involving upon pleadings, direct at sions were tacks, or else are averments concerning averments, attacks made not collateral such matters defective therefore, appointment; and, precedent performance the orders or as the the suit, of conditions distinguishable necessary steps taking preliminary are difference, suing well as other that reason of a as where stockholder on be- corporation decisions. differences facts recited an half effort tion.” fails to set forth of the used, “void,” evidently corpora- the word procure And was action him to only. meaning It fur voidable used as appears reached the conclusion ther 368, Robinson, W. 3 In Martin v. 67 Tex. S. principally upon the was based those cases Stayton, 550,552, opinion Justice guaranty Consti of the State constitutional tution following said: 19), (Article 1, “no citi Section county “That the court for Nueces life, deprived of zen of this liberty, be State shall jurisdiction general awas court of record of immunities, property, privileges or relating to the administra- over matters except by any
'or in manner disfranchised persons, not of the of deceased is tion an estates land,” and the due course of the further of the law open question. [Citing cases.] right guaranty trial 15). jury (Article 1, Section having record, juris- a “When court of such diction, given guaranty has assumed to it in a However, exercise constitutional case, presumptions procedure are favor the va- jury of trial relates to lidity proceedings; acquired, its and if the the record has can after been steps jurisdic a court shows that such such not be looked tion not v. United to determine power given it act in the ease especially to clothe with ; if this true case does is taken, if prosecution were subject, or the record silent this a for crime. Patton involve judgment, order, 253, then its States, 270, or decree 281 U. S. 50 S. Ct. must be held conclusive other court L. 74 L. Ed. 70 R. White A. v. R, collaterally sovereignty when White, same Tex. 196 W. U. A. S. question.” (Citing cases.) called 1918A, 339. (cid:127) quoted following Woods, is from 1 S.W.(2d) 309, 310, Ereeman it In Sloan v. Ed.) (5th p. seq.: Judgments Appeals, § et held the Commission of approval Supreme Court, previous a sale “In a section it was observed that belonging guard- jurisdic- estate to a minor real bear a direct relation to They present controversy ian order tion. court and Regarded und.er attack, empower proceed void a collateral even (as it the cause. though “require did light, juris- the order of sale in that' is’a office good bond, to file through a and sufficient and it them and dictional one is subject approval court, in an put is virtue of them that the court of the powers in control equal general to twice the amount subject amount such real estate is ticle over its matter sold”; though even ar- the law. The extend under authorizing specifically such sale brought by appropriate the court before provides subject order sale of real presented process, is matter embody belonging quirement ; beyond bill, complaint, minor shall petition, re- declara- form of some tion or other then, quirement in that ease showed application. apparent, facts It is that no such bond had pleading if the satisfies this re- given by required subject before or matter and discloses showing far- powers made. And sale was over which court’s within extend, class general reaching scope of the rule this when made the basis suffice objection, state, irrespective decision reversed a collateral case, allegations quality re- tflis court the same completeness or or S.W.(2d) court, justify sought, ported this adequacy in 9 wherein relief or their of imperfections pre- defects, irregularities recognizing general or rule of while validity sumption in favor of It sufficient of form substance. attack, judicial challenge inquiry. a collateral further held allegations jurisdiction Por as depend upon article 4201 Statutes mandato- does not suffi- character, power ry ciency therein in its statement fullness only tq any importance given pleaded, could exercised it of nor is of action pleading collaterally under the manner and circumstances does or does in whether *12 authority excep- ful do specified, unless the same was therefore constituted prohibited by rule, general the stat- Constitution some in accordance tion many the jurisdic- appellants, ute. But it is insisted in sub- cited in authorities there stance, though Appeals probate However, that of even the court Commission tions. the acquired general jurisdiction par- be- provision statute of decree that the construed ing directory mandatory. Bearden, deceased, tition of the estate A. of L. and not authority parti- it lacked lawful to make the applications filing Upon of the the of (1) tion that was decreed cause 7494-B: guardianship Myers Mrs. of and Wilson Because the same was in violation section of Bearden, alleging un was of Annie that she Constitution, prohibits art. of our necessity existed sound the mind that partition the of a homestead after the death estate, appointment of of spouses during of one of the the of life the jurisdiction county court to deter of the mine the survivor, long may or so as he or she elect v. Hoffman issues attached. occupy homestead; because, to the McChesney’s (2) as a Association, Building Tex. & Loan partition, for that title Miss generаl, jurisdiction was S. W. 154. And that challenged lease was the Constitution, under the strict letter the pleadings probate of the other abrogated or modi could and the same fied jurisdiction court was without to determine Legislature. since act of the And issue, juris- that since the Constitution that affirmatively appear either in it did not orders applications exclusively diction was court; vested the district guardians or in (3) partition because the had ef- appointments that for such made abrogate provision fect to oí Mrs. Annie Bearden had not theretofore devising A. L. Bearden Mrs. person tried and mind, to be unsound Bearden his undivided half provisions chapter 12, title under the tract for her use and benefit 69, sary that fact neces of our statutes —if during her life. jurisdiction confer follows —it respect objection, With to the first we will any subsequent or orders nor neither those say that- since Mrs. Bearden was including county court, orders ders hopelessly insane, impossible it was for her authorizing empowering occupy to elect as a property to continue to McChesney ap Miss the lease to execute proving homestead, and whether or not she should same, a col were void as sodo 'or should be cared for at some other lo- assign attach; and, accordingly, all lateral cation, done, as was had to be determined contrary propositions ments overruled. probate court, duty the such whose it was to take respect opinion action as in the of the court would be for her best interest. We shall next discuss the attach Furthermore, provision Constitution judgment in ren cause No. on dered express by implication did not in pro- terms or county. Young the district contrary, hibit ity On such aсtion. pleadings author- The implied grant general so to do was before us involved direct attacks now jurisdiction taining apper- to “transact all partitioning business order persons, minors, idiots, to deceased controversy made in the administration of in the estate of lunatics, persons Bearden, mentis and com- A. L.. deceased. It drunkards, including settlement, par- mon that in the-rendition of said tition and distribution of jurisdiction estates of deceased district same the as that of case case court’s persons apprentice minors, provided and to county court, which the - iaw.” brought by appeal.' had been the court jurisdiction acquired provisions chapter 24, And title persons (articles Mrs. Annie E. and estates of 3598-3633), Bev. Statutes 1925 ex- through pleadings press authority given her behalf partition filed ft. the es- Myers; decedents, of all devisees of A. L. tates limitation without restriction or including deceased, publication through prohibiting partition Lee of a home- required .by citation as stat stead. by pleadings utes, in their followed behalf respect objection, With to the second executors; and also of Bessie filed MeChesney’s the title Miss lease through minor, Wilson, Morgan, Frank only, amade direct issue—it was incidental friend, through Grif Mrs. Lou next question Myers whether or not had been pf fin, of her both whom as trustee guardian. legally 'appointed pleadings The trial; appeared McChesney, and of Miss case, contesting filed through her. It McChesney, of title Miss lack were based provisions that under the is also true solely on the contention that the statutes, acquired the court Constitution Bearden’s was void subject-matter. general prior it was made because adjudication absence of а lunacy, question provisions then arises as whether under chapter 12, par- Statutes; not it lawful to decree the Rev. judgment. adjudication preliminary in that shown" It without such had law- tition *13 jurisdic common, lunacy in none with of whom tenants was without as tlie court him; ap antagonistic appointment. suit to the It thus were to make the tion simply the pears of all an attack instituted for the benefit that the contest guardian plaintiffs Myers' neces alike and all whom of were the order on sary hy power parties. in to consequent not lie his did execution of the lease It and the virtue thereof made prevent eoplaintiffs protecting his their from same court the by property leaving during the state A. interests the estate of the administration of the away parts remáining Clearly, probate for for unknown and had the court L. Bearden. jurisdiction years, concealing his whereabouts several or whether to determine knowledge parties in other of the vacated to should be orders thereby depriving authority terest, their them as it would have the same extent to vacate rights protect any during suit their interests adminis other order Especially is true that was instituted. since sister, be noted further tration. And it is to wrote to McChesney’s it seems from the he letter under her of title Miss claim above, it exclusively validity set out on the lease was based that devisees order, by was his desire that the other of the lease execution represent his A. will of L. Bearden should acting the title thereunder. Her claim generally as their own grew proceed as well out of administration probate proceedings pertaining land in ings and was not a claim controversy. (10th Story’s Equity Pleadings testator or estate reason Ed.) ; 669; p. L. 2 15 R. 142 R. C. L. C. §§ Hence, fаcts dehors the administration. thorities Mahan v. McMahan au p. ; Corpus Juris, pp. 45, The 1024 46. 42 by appellants, Mc cited such as jurisdiction acquired all court also other (Tex. App.) Civ. 175 S. W. persons judgment in that to be affected noted, 160, and decisions therein other them, pleadings suit reason of filed general administration, pending effect that Myers, including pleadings by R. as E. filed jurisdiction the adjudicate court is without of Mrs. Annie estate disputed realty, issues of title to compos mentis, Frank proper application have no decisions it of administration of from which was separate here. In all those Wilson, E. Bear- of Mrs. Annie as next friend appeared disputed that the claims appointed by den, court theretofore foreign title arose from transactions to the friend;' pleadings filed Mrs. such next estates, such as transfers right, signed E. Bearden in her own another, validity heir to one her, attorneys who were attor likewise challenged; were nor those cases neys plaintiff; pleadings judgments, suits to set aside former Frank as next Lee Wilson friend of Bessie here. true Morgan, now Griffin. Bessie Lee And respect objection, it With third ap respect pearing authority next friend is clear that to Mrs. the life devised by permission of another behalf was, any Bearden by like other owned court, Rev. Oiv. Statutes see article her, subject partition, provi under 1925. authorizing partitions sions the statutes appears It that in both causes thus estates of decedents. acquired 7494-B and court Nos. partition Nor could be annulled subject-matters jurisdiction involved present instituted to set aside therein, interested and of any erroneous conclusions of law or lack authority probate lawful court had evidence, being contrary or as undis partition 7494-B; to decree the cause No. facts, puted parties laboring consent, by reason of consent of' the events, at all and that the district disability give under confirm lawful cause byor reason of the homestead char No. 7473-B its and decree another property partitioned, acter of the of for lack stead. Article subd. Rev. 1925. St. necessity Judg therefor. Freeman on appeal prosecuted And from either of Ed.) 221, 222, pp. (5th 434-437, §§ ments in judgments. those pp. clusive; R. L. 15 O. 835 to and 875 only possible It follows then that the. 879. judg- vacating grounds left either of those fraud, accident, ,or ments would be for mis- It cannot be doubted that in cause take. acquired juris the district No. 7473-B subject-matter plaintiffs pres- pleadings all the and of diction issues absent institution present involved. Bearden was the issue of accident While did not ent suits preventing appearing state and did not know from the them from or mistake yet suit, properly asserting he was in pleaded cases and. plaintiffs cases, party therein the other fault made a these without representation, equity judgments, part, of virtual rule since such as would furnish under the that vacating essentially grounds rem action in Judg- explained necessary protection proceeding Freeman on defined ; Ed.) 1246,p. 1247,p. (5th all the § § well as that of ments nor his interests as of other jointly plaintiffs mistake or the court inadvertence who interested causing just to, rendition of different referred with addi- plaintiffs,, intended, in 1 Free- ones defined tional court reasons for the contention that Judgments (5th Ed.) 220,p. judg- man § was without to render ment in cause No. fur- 7473-B. There were do believe that Nor we allegations by ther Lee O. legally suffi wa.s Ritchie, guardian, E. B. and Bessie Lee Grif- ground as a issue of frаud cient to for fin, of meritorious defenses to the suits judg vacating former either of those those two causes. ments, elements .of *14 readily It will be observed al- that those Judg explained Freeman on defined and in leged misrepresentations facts, were not of Ed.) 1238,p. ments, (5th § § vol. 3 law; merely but consisted of conclusions of 25S6, p. deception consisting character of some only proof to sustain them consisted by complainants upon practiced the pleadings interpre- cases, in filed those agree parties, of some adverse or violation was, solely question tation of which law a advantage ment of some other unconscionable for the court. plain them, by by which taken reason prevented presenting tiffs which would have from defenses were support allegations In of the of fraud judg the rendition of led to showing and as that have that should issue ments favorable them. more jury, appellants been submitted to the have already, grounds al- As noted of fraud cited evidence as introduced the trial substance, leged by were, in O. Bearden follows: neys 749-t-B, & McFarlane McFarlane were attor judgments he means of former that for Mrs. Annie E. Bearden in cause deprived validity challenged had been property ency of substantial in which she pend- knowledge Myers guard of ian E. without his the order R. E. as suits, Nancy in of those absence of of the lease executed him to jurisdiction acquired by McChesney, courts over judgments ground on the that or property; were or and which ders were void because she had never been procured present adjudged prior appointment the defendant's a lunatic to that knowledge Myers. already, with suit full facts. of those The оf As noted alleged by plaintiff partition dated'August 22, fraud guardian E. B. as Ritchie that suit was of Mrs. Annie Bearden consisted 1924. In cause No. attor the same allegations neys represented peti plaintiffs, that defend- effect in their procured July 23, 1924; ants rendi- tion filed suit and that suit judgments prosecuted against Nancy McChesney tion Nos. 7494-B causes E. by representations and 7473-B them later On who intervened. August 25, 1924, attorneys to the court that Mrs. Bearden was Annie a the same filed Myers plea and that E. had mentis R. of intervention for Mrs. Annie E. Bear- duly legally appointed guardian den, adopting pleadings been plaintiffs of the represent suit, coupled allegations and was authorized suits; her in those in that with further by Nancy Myers guard and that lease claimed of R. E. McChesney E. been made to her had McChesney a valid lease which ian and the lease executed to Miss Myers guardian as Mrs. Annie him and all other orders in that legally appointed guardian ship, adjudication Bearden’s thereby were void for lack of an judg- insanity prior appointment Myers induced rendition of the to the suit; representa- plea ment tions were all of which Another of intervention was on alleged August 25, 1924, be untrue in that. E for suit Annie legally Bearden, Wilson, friend, Annie If. Bearden had judicated ad- never been Frank as her next adopting plaintiffs’ E. to be of unsound mind R. before likewise and at Myers appointed tacking guardian, appointment Myers, guardian, grounds alleged by plaintiffs, therefore R. E. had been on never the same duly legally appointed pleading signed by and that was also Mc- such, attorneys estate with act as Farlane & for McFarlane as said' n Nancy McChesney reason of that Septem E. had attorneys, fact next friend. The same acquired legal nеver a .title to the claim- lease ber filed a trial amendment in the Coupled allegations, ed her. with those names of the executors behalf allegations were further effect devisees A. L. will of Bearden as re- misrepresentations that as a result of such maindermen and interested in one-half of the partition the court in had land' after the termina erroneously a Nancy McChesney awarded to E. tion of Mrs. Annie E. Bearden’s life seven-eighths alleged leasehold interest in of the in which it was that Annie Bear- controversy, leaving land person E. Bearden den “has been a of unsound one-eighth royalty “an praying undivided in less than mind and be entered leaving royalty defining respective half of the land and interests of the re- n * n subject seven-eighths maindermen, mineral interest and that de it be working Nancy McChesney.” interest of creed said tenant life have to ex grounds above, by plore As shown Bessie -pleading, of attack said minerals.” urged by partition alleged Lee Griffin included those the the former decree of allegation did tijat same borne mind that of entitled a in the cause it is not fraud further action, management heirs partition but which between fraud in it® decree not and agree party could who The fraud for to relief. devisees A. among judgment may partition themselves vacated en- be that, alleging minors; joined equity procurement ,whom were must be some for settling finally purpose judgment.' all controver- If the cause action Nancy claimants, by fraud, the different sies between vitiated is a defense which this assigned McChesney certain interposed, interposi- must be unless its her. prevented decreed fraud, 'by interests theretofore mineral tion is serted it cannot as- be an- prayеr for pleading judgment; concludes with The other ‘for property. Those only impeachable entire those frauds bring employed attorneys imposed has or misled cent, per contingent whatever impeach- judgment. They a might fee of 25 into áre not a false executed from to be be realized leases relating able frauds the merits between appointed, by pointed, should one parties. the receiver All and errors must mistakes proceeds and was allowed motion new corrected within Tidwell, lease executed trial, reopen judgment, sale by appeal.’ toor *15 receiver, $29,316.41 their for the sum of The fraud must be ‘in some matter other than friend, ” nex,t Wilson, as Frank H. services. controversy in the issue in the action.’ $10,980.94, R. E. sum allowed the was opinion To same effect in was Reed al- Pleasant were each Bearden and lowed Bryant (Tex. App.) 605, v. authorities 473-478; Civ. S. W. although amount; allow- same See, also, cited. J.C. repre- minors he Wilson was for the to ance sented ceeds true of the pp. 15 R. C. L. 471-478. pro- distributive shares as their will, It is as was also to further sale under noted that a suit equity judgment, and Pleasant to to R. E. vacate a such as the allowances us, ones now before not the court does Bearden. act revisory appellate character; or and in the judg- that the further shows The evidence justifying relief, absence of extrinsic facts cause, was in that No. rendered ment by fraud,, accident, mistake, or if the through parties, agreement their all the jurisdiction authority court had to render conclusive, and lawful them, legal representatives appearing for it, judgment must be taken as to that in the the evidence tended show new though appear even it should to be partition judgment made that there was clearly facts, erroneous established or suits, especially apart plaintiffs in those set Mrs. value than what had been awarded to resulted erroneous admissions or exclu rights property Annie E. of less testimony, sions or erroneous conclusions of to them facts, law drawn from the or from partition No. former decree cause judgment. are the which man vol. basis of the Free 7494-B. Judgments, 2, 727,p. Id., vol. § filed & McFarlane have briefs McFarlane 1214, p. § appellees, in of several here in behalf I-Iowever, judg- if the to set aside the allegations explained that the in the trial isit jurisdiction fraud, ments for lack of dent, or by them, acci- above, referred to amendment that person mistake, established, or had been then Bearden had been recited be considered the termining facts could mind, de- reason of unsound was plaintiffs or not whether adjudication' had a prior that fact the No. any por- 7494^-B, meritorious defense to substantial final. which had become judgment. tion of And the court could any pleadings charging the absence not have taken the determination of that is- judgment in cause No. 7473-B was jury by sue from the an instructed verdict. wrongful result of collusion between necessary jury it have for Nor would been agreement basis there- have-ap- find that Lee O. to Bearden would plaintiffs, them, deprive of, to some prosecuted peared and such defense had he rights, property or else a willful valuable pendency known of the suit. plaintiffs purpose wrongful to defraud the just rights, property the facts recited application The for of re purpose except looked to no other could be ceiver 7473-B was not sоle .cause judgments erroneous, to show as suit, ancillary purpose only of that but was contrary to the merits con- develop troversy—a question which cannot be raised gas that those oil the end minerals judgments—since impeach do not to tend judgment away by adjoin might not be drained wells on rendering court to show land, ing quired having district court ac ,or misled deceived and but for jurisdiction purpose, and as an any judgment favorable to more which the thereto, ju had lawful incident risdiction herein would have ren- appoint Tidwell receiver and to dered. empower him to sell the lease the Pan Refining Company Harry Judgments, in Freeman on vol. handle Hines. said As binding upon judgment Ed.) p. (5th must 2567: “It be And that Bessie § ly by tiffs, legally represented representation coplain- Morgan she virtual since Lee next Wilson as her Drank never cited had no in that snit notice Griffin, friend, only the trus- Mrs. Lou until a few months prior though us, minor was a to his suit of her she now we shall tee even before citation, personally with determine served because not and no view of repre- appointed already expressed. the ut$ litem was conclusions ad That stat- disqualified equita- Frank Wilson sent her. Nor was limitation would exclude merely urged inter- ble children were also defense of because his laches and stale demand land, Company McChesney. did not but whose interest the Texas ested in the and Miss Bessie with manner conflict Furthermore, from that decision it fol Morgan. of Mrs. same true Lee And the is lows that neither the homestead Bessie made trustee Lou who was Mrs. nor fact that a Morgan’s A. L. will of life one-half the land - art. Statutes Revised Bearden. 1994. Civil had been devised to her A. L. revise And the Jurisdiction would in Bearden event be available Lee O. in cause No. decree or vacate the Bessie Lee GTiffin as a provisions of article 7494-B under ground canceling the former Indeed, 18, Rev. Statutes 1925. subdivision against them. plaintiffs’ to set here given solely following proposi aside that is the eleventh presented statute. tion briefs of Lee O. Bearden: refusing “The judgment erred in set aside though be said that could Even Raby in cause No. Jean Ima et foregoing respect we reached have conclusions Wilson, Receiver, being al. Frank versus H. the or attack the collateral *16 judgment Young in the district court of Coun Myers ders ty, in Lee O. Bearden had been ad guardians attack and Wilson the direct judged having be dead and the court failed judgment 7494-B, cause No. made give judgment him for his one-tenth inter erroneous, judgment in nevertheless the land; est in the fee title to the the court conclusively establishes cause No. 7473-B their given judgment against should have all of validity judgments renders and in defendants favor of Lee O'.Bearden involved, adjudicata the issues res since for one tenth interest the land.” decrees merits orders already, judgment As said cause No. spe thereunder 1926,during 8025 was rendered in term of the March adjudicated approved cifically as valid nearly year, that which was in cause No. 7473-B. years subsequent two to the final We further that defense conclude in causes No. 7494r-Band and hence estoppel against of Bessie Lee née Bessie Lee Raby Ima the title awarded to Jean and the Morgan, conclusively estab other two children cause No. 8025was nec- receiving from R. E. Bear- lished den, guardianship, her act only essarily such title as Lee on final settlement giving prior then had after col thousand dollars several full force and And leases tle wаs decreed effect. the same ti- royalties leases from the lected judgment him in the from royalties assailed, and further which are here appeal prosecuted; which validity and the this aggregating than more $1000 close after the that award has not been chal- guardianship monthly of the covering ceipts installments lenged appeal any Hence, on this one. it year; more than re of.which proposition presents quoted is clear that the marriage, occurred after her and with And no it is to error. be noted further that pleading inducing or evidence of fraud Lee O. Bearden also chil- recovered such action her. judgment royalties dren for the oil collected by them, under and Furthermore, virtue of their recov- in the absence of an im ery 8025; they in cause No. judgment have peachment fraud, the de appealed judgment. not from that years’ (Rev. fense of four art. Texas as of limitation St. 5529) urged by McChesney Miss and the And we add that the record discloses conclusively Company established that Mrs. Annie E. Bearden has been well against Ritchie, guardian throughout pendency of E. B. cared guardianships Wilson; estate of Mrs. Annie E. husband, during portion of Mrs. Bessie Griffin a considerable of that time appearances through legally made daughter, since she has been in the home of her representatives Dunkle; guardians in both authorized causes Nos. Mrs. that her have col- Levy Roper, royalties v. 7494-B and 7473-B. 113 Tex. her benefit from lected for the oil not, case, question aggregating W. 251. But 256 S. whether or un leases in large this cited, last the decision der likewise established suit 7473-B, defense was out sums of which all her necessities against supplied; Lee O. Bearden’s have been and that there is now judgmеnt $80,000 vacate cause No. balance hand a of some care and on more appeared plaintiff support during he in which sole- for her to be used conclusively $1,000, any bound life, such acts since revenues the rest of her exclusive lease and the her to a ratification of the may from probably her accrue to judicial proceedings in its which culminated other same or sources. mo her execution. The contention appears now she is It further estoppel rehearing could tion for age, years in- proximately ninety successfully against reason invoked sanity throughout rest of her will continue merit, of her established without as is well coverture is passage life, insuring thus state. the decisions of this to her death own at date of she heirs, Guaranty 285; Crayton Munger, 9 Tex. v. according of descent statutes Kelley (Tex. App.) Com. Bond Bank v. distribution, can- she thereof reason 69; par. S.W.(2d) Speer Rights, Marital discriminate which would a will leave Searcy, 155; App. v. 10 Tex. Civ. Simkins of those heirs favor Barley, Bingham W. 32 S. v. persons. any. others, in favor other Rep. 801; Am. Daimwood v. Tex. conclusions, foregoing In view of the (Tex. App.) 621; and Driscoll Civ. 151 S. W. unnecessary or determine- discuss becomes other decisions therein noted. ably presented questions many rehearing, Lee O. Bearden’s motion appellants, mer counsel briefs of complaint that he is made of our conclusion by the is all which are controlled its of judgment waived his to set aside the above'; opinion haying sues this discussed his three chil- .8025 favor of already'to extent, an unusual been extended but dren, being void, by reason his elec- unavoidably-so,'by redson of exceed accept restor- rendered tion ingly in different suits.’ records voluminous ing to him decreed to those title theretofore And same reason the merits of other for'the children, recovery with a further presented appellees1 defenses will not be determined. the different royalties they had oil received Company, held and also lease Texas .the did not We the trial court conclude recovery Company the Texas returned, instructing erf in the verdict royalties accruing the in the future under presented assignments of, should that all error judgment lease the one-tenth same land in him ing overruled, ’of the trial was devised entirety; its and’ should be .affirmed in court it is so Bearden; father A. L. thus treat- ordered. the former as valid restor- until appeal re- are taxed Costs title, of. *17 profits therefrom, ation with the spective plaintiffs in the three consolidated provisions made to him under the of article suits, appellants here, share whom 5541, 1925, all.of reading: Rev. Civ. Statutes of n share alike." “Any person absenting himself for seven years successively presumed shall be to be Rehearing. On Motion for dead, proof unless be made that' he alive was Upon a further examination time; within that but an estate recovered (née record, Morgan) gust, Griffin find Bessie Lee we presumption, subsequent on such if in a ac- during the month of Au married person presumed tion or suit the to be dead 1927, awas and when married she she proved living, shall be to be shall be restored alleged Hence, while her of ac minor. profits to him with the rents and with of the estate any, tion, if set aside the during -legal such time he some accrued causes Nos. 7494-B 7473-B deprived shall be thereof.” filing years prior to the date of five the. judgment so rendered his favor was suit, yet limitation did be not provisions accord with of that statute. оnly gin marriage, run which was until any testimony Nor have we been cited pres years, institution of her before the two prove record offered to the market value judgments. set aside those former ent Therefore, 'to royalties the oil collected those chil- of dren, opin the conclusion reached in our support a order to for dam- original, hearing sustaining de ion on wrongful alleged ages conversion years’ 1925, (Rev. of four limitation St. fense petition. was Lee Bearden’s And it our O. 5529) erroneous, as' her suit was art. alleged right to claim that conclusion that his the lease ' hereby and the 'same is withdrawn. judgment in cause No. 7473- void, B under which it was executed to recover waived; waiver, involving toppel, former But adhere to our conclu we damages conversion has been estoppel sion that the defense of words, that the doctrine of conclusively Griffin was estab BeSsie of es- receiving some of the elements her act in from her lished for here, irrespective applicable guard guardian is on final settlement of mer ianship marriage, been not the other have whether after her several thousand injury. royalties As said the Su- misled to preme him as dollars collected (cid:127) Trapp Off, her; 194 Illinois v. Court of assailed and fur lease ther marriage (cid:127) 615, party royalties 287, receipts “Where a 62 N. E. 621: Ill. her after decree, accepts monthly aft- covering he cannot the benefit of installments prosecute year, amounting error reverse it. Such erwards more to more than than
465 estoppel, Pipe Co., operates Ky. acceptance Bannon v. Sewer as an 136 119 Also, 1170, 1173, ap see S. W. of errors.” a release 124 S. W. is be treated as not plicаble- Morgan, controlling principle Morgan W. Ark. 288 S. here. r. is .The waiver, County 979; Ditch Co. v. Weld involves Boulder & some Co., estoppel desig 43 elements of Ditch Colo. and is often Lower Boulder nated, which, respect effect authorities to like P. and other issues above,'involves of waiver discussed noted. hereinafter doctrine of election between two inconsistent original true, appears in our It is remedies; and it is not pass upon opinion, the con we did party invoking it must show that he has been Company, to here made Texas tention the effect his and of injury by party. misled to his reliance the act has waived that Lee Cyc. p. seq.; of the other et validity question its'lease pp. 20 C. J. 4 to 40. judgment in cause No. 7473-B Appeals The decision of the Court of Civil executed, by' authority of which the lease was Rankin, of Eastland in Damron v. 34 S.W. record, fact, shown in the reason of the (2d) 360, by appellants support is stressed consent, entered that with his the court appointment their contention that of a judgment against providing decree of Mrs. Annie E. an in- putative wife, him in Mrs. Jen favor of sane, preliminary in the absence aof ad- minor and her and his nie Estella child, Myra judication insanity, absolutely void, Elizabeth should subject to the attack made thereon royalties hereafter accrue satisfied out of on appellants; but the made in attack the case in con one-tenth interest the land by separate cited was aside the suit instituted to set troversy under the lease held the Texas of a for an treating Company, thus lease and the person; attack, insane the case is a direct in cause No. under which it clearly distinguishable executed, subsisting. as valid and That present Appellants suit. alsо cite the recent was one mined, we left undeter contentions Ap- decision of the Amarillo' Court of Civil unnecessary as we deemed the same peals (2d) Martin, reported in Dial v. in 37 S.W. How other conclusions reached. in view of 166. That was a suit instituted Mrs. ever, seeming avoid the inference order to Gertrude Dial as executrix of the estate of motion for rehear from what is said ing Dial, deceased, J. C. friend and as and next contention, overruled that that we we her minor children to recover title it, already the same now sustain reasons to certain recover, lands. In order to it was discussing expressed in a like waiver noted necessary to annul a former consent decree above. probate guardianship of the the estate of the court in the children, wherein Mrs. & Dial In Texas Pacific Coal Oil Co. v. Kirt appointed guardian estates, ley (Tex. App.) pointed of their Civ. 288 S. W. is. and which necessary, decree was later confirmed in an- out that it order for one other suit in same sustained successfully the district court between the invoke the doctrine of ratifi parties. Appeals Court *18 The of Civil of an unauthorized act cation or the rule of remedies, a collateral attack prej on the former between two election udice to the Morgan Morgan, show judgment because no complaining party. ad litem was As said in appointed represent minors, 173, and fur- v. Ark. 171 283 S. W. ther 979, 980, accept because the was in violation “One cannot and derive a of the terms of the will necessarily under which Mrs. benefit from decree without ad acting Dial was as executor. mitting legality.” Many It is therefore its other decisions apparent distinguishable might that case is cited, to likе effect such as Arthur Israel, 147, suit. 81, v. 693, 15 Colo. 25 P. 10 L. A.R. Rep. 381; Trapp Off, 22 Am. St. v. 194 compliance request appel- In with the 615; Holbrook, Ill. 62 N. Creamer v. findings, lants for additional we add to 830; Hill, 99 Ala. 11 So. Warner v. 153 original opinion those recited in the the fol- 478; Sage Finney, Ga. E.S. v. 156 lowing; App. 996; Ashley Riser, 135 S. W. Mo. 26 v. The devise favor Mrs. Annie E. Bear- 711; Cox, La. Ann. Matlow v. 25 Tex. L. den A. Bearden reads as follows: “All 578; (Tex. App.) v. Johnson Lowe Civ. my property I of which seized die . S. W. 1004 possessed, and stock, with the exception of the live- used, shall be held and controlled general plea estop- The rule my wife, Bearden, during Annie E. own use pel cannot be sustained the absence of a profit for and her life.” showing party invoking that the has been it injury, misled to his in cause No. which is discussed in The 7473-B does not many appel appeared authorities cited in Mrs. Annie briefs recite that lants, she, County, person, such as Gunn v. Mahaska but does recite that a non 155 in com- Iowa, 527, mentis, appeared by Myers, guard- Mullen, pos 136 N. W. R. E. McKain v. (N. S.) 30; attorneys; 1207, 1208; 29 L. R. A. and his C. J. ian and also attorneys; as her F. Hinson V. duly guard- appointed next friend and as her ian (cid:127) attorneys. litem, by his ad appel- this case their equity. lants offered do (cid:127) findings requested There are other immaterial, or else suf- are either we believe ficiently opinion. original in our shown above, for rehear- As the motion indicated the, ing by de- Griffin as Mrs. Bessie Lee urged against years’ limitation of four fense her respepts granted; in all other suit is but rehearing motions for motion her rehearing appellants, Lee 0. the other Ritchie, guardian of the E. B. Bearden and Bartlett, Thornton, Dallas, & Brown motion estate Annie appellant. guard- rehearing H. Frank Wilson Bearden, are estate ian all pellants’ Simpson, Moore, Worth, Collins & of Fort abovе, Except as shown overruled. appellees. findings is additional motion for overruled. BUCK, likewise J. appellants O. Bearden motion of Bobbitt, pe- D. T. who his first amended Ritchie, B. joined by and E. Annie wife, tition was Mueller for Fred sued is overruled. retax costs injuries to Mrs. Bobbitt automobile, alleged Essex their to have oc- being- curred struck on White reason the Bobbitt car April 7, 1929, Mueller car on road, Settlement west of Fort alleged that, they Worth. Plaintiffs while coming were from Lake Worth to Fort Worth early morning, they pass- et ux. one BOBBITT and soon after v. MUELLER home, ed Mueller car driven No. 12439. up them, Mueller came tempting sideswiped behind at- Appeals of Fort Texas. Worth. Court Civil pass their car the Mueller car car, turning March and hit their their around, practically demolishing car stroying and de- April Rehearing 18, 1961. Denied car, the market value of their reason of the collision Mrs. Bobbitt was seat, thrown the front where she had riding husband, been seat; with her to the back aware approach of defendant’s until ear hit car; defendant; signal given by heard striking plaintiffs’ that the car negligence was due defendant’s in various injuries respects; plaintiff Ruth damage Bobbitt and the to their car were directly proximately caused one or *19 negligence, sepa- acting acts of either more rately provisions concurrently in violation of certain statutes, wit, criminal driving defendant in excess of hour, in 35 miles an violation of article Penal as revised in Code occasion, negligent defendant in- volved, plain- that at time he struck driving car he was his car tiffs’ rate of at such a speed endanger the life and any person safety or the limb of property; adequate he did not have good working order, in brakes violation statute; attempting criminal plaintiffs’ his car around to drive car he again before turned road