*1 with the is “It well settled STATE FARMERS ux. v. COCKRELL et plea, proper challenged, under venue IN MEXIA. BANK County, the burden his one sued without No. 3065. the case prove that only allege but to not stat exceptions is within one of Appeals Texas. of Civil * * *' to de plaintiff ute rests Waco. plead plea privilege, he must both feat the 5, 1953. Feb. bring the relied on prove the facts Rehearing March 1953. Denied “The exceptions.” one of the within case ordinary way, is tried issue in is facts issue and the truth as the introduction be ascertained sides. both offered evidence

weighing of maintain short, seeking plaintiff In by a county must prove in another

venue facts the evidence

preponderance excep within one-of bring cause his fact “Proof of .of 1995.”

tions to Article offense, crime, or the commission proof of trespass essential as is as The com committed.

place where offense, trespass crime, or mission of part exception a of this the terms is under Elliott, Compton v. facts.” of the venue Hannah

Tex.Com.App., 88 S.W.2d Tex.Civ.App., 101 S.W.2d Stephens, venue in seeking maintain plaintiff

A county prove practically

another must trial, not and it is would on final prima facie make out a that he sufficient Maples, Stockyards Bank v. Nat. case. (Com.App.). must venue facts at hand the In the case 1) That acts be

therefore two-fold: trespass, actually constituted which occur fraud; 2) that .occurred conversion County. Hamilton court determined from

The trial hearing that the adduced

evidence money,— converted the Appellee had trespass a fraud not committed Statute. exceptions to the Venue

within court sus- the trial believe evidence.

tained judgment sustaining or appeal from a privilege the action of plea of

overruling a Appeals reviewing of Civil the Court by the trial is the findings made case, Comp- appealed other inas same Elliott, Tex.Com.App., 88 S.W.2d 91.

ton v. judgment is affirmed. *2 contract,

mechanic’s lien and that re- she representations lied on the truth of the made to her signing of the con- tract, material; and that it was that at the signed time Mrs. Cockrell the mechanic’s lien contract and note for that her; Notary explain did not contract present, that her husband .was and that she Notary did not acknowledge to the that deed, such instrument and nor act signed that she had same for willingly therein and consideration expressed, nor she not wish to that it; July, retract that -on the 22nd of of, Cockrell tendered to the the sum payment in full amount he improvements; claimed was due for the unpaid that the amount due and note for was the sum of $2847.94.

After the verdict was rendered the .court appellants’ denied motion judgment for and granted the judgment bank’s for veredicto, non obstante decreed and bank recover from the defendant Welton princi- sum being R. Cockrell the pal, attorney’s fees, interest and with in- judgment terest date rate annum, per per of six cent and for costs suit, provided and the decree further that bank have foreclosure of its against mechanic’s and lien materialman’s appellant. Bond, Teague, for Bowlen wife, defendants Welton R. Cockrell and Mason, appellee. Mexia, Cockrell, for Ruby W. W. Willbanks, Edna and Craig except save sum of at- $381.10 fees, TIREY, torney’s leaving subject the amount Justice. collection . through lien foreclosure as brought The this suit to recover $3811, with accruing interest thereon and promissory on a advanced court, costs of and foreclosed the lien on lien, of a foreclosure mechanic’s property. duly Cockrell and his having note and executed excepted to the decree entered wife, appellants Cockrell and his Welton R. appeal court, notice of to this conclusion of here. At the evidence the case is here for review. its motion for in- the bank tendered an verdict, which the court overruled. structed question Appellants personal jury substantially judgment against in its verdict found rendered defendant Cock- prior the execution of the challenge only portion mechanic’s rell and wife, holding contract of the decree Will- mechanic’s and contractor, banks, represented to Mrs. materialman’s lien valid as bank and provided foreclosing .appellants’ the contract (cid:127)Cockrell that it on homestead. improve- keeping position they full for with their In assail ments, representation substantially judgment was the follows: (1) false and was court erred in decreeing of The. trial fore inducing Mrs. Cockrell to execute the closure of mechanic’s- and materialman’s , - con-. favor of appellants’ .and homestead

lien on signed hank, lien contract tractor. (a) because reading by- parties before original rescinded knowledge of bank, (b) was- them and she had no actual a lien *3 signed Cockrell, - she padded married amounts at the a the time procured from Mrs. and she woman, papers, fraud and the representa her on homestead relied that and with separate acknowledgment, -(c) understanding tion Willbanks her without lien price to was The the mechanic’s $4740. -remained invalid when the lien' signed by Mrs. Cockrell spite that the contract was fact appellee bank of the bona, office, ask Notary note and of the not purchaser bank was a fide the Hitt’s the invalidity Cockrell whether executed of the Mrs. she the notice of deed, act whether contract, appellants her or (d) contract as and and mechanic’s signed deny validity willingly estopped the she the to the are not -by and consideration therein 1-ien affirmative act mechanic’s appellee expressed, bank wished to retract misleading or whether she representation her; same, Notary purchase nor did the examine to ..the inducing n ; apart separately husband. lien. invalid Rer home, driying was Cockrell While his wife the effect that Testimony was tendered to office, papers signing after in Hitt’s 1951, negotiated March appellants, on told, he note that noticed-the contractor, Willbanks, to Craig with first padded to This was. home on the house for a four-room build a padded figure knew suit'; orally they agreed on that lot in lien; on the note that'-after Cockrell' n ' the con $4740; that 'and price‘o'f Cockrell de wife home' -he returned and took his Hitt, agent of with’ 'Monroe tractor talked Hitt,' note of -in-the manded the who was Association, Savings 'Loan & the Pioneer' delivering the but act- note' to money did not have and since Cockrell' ‘and he thé mote was: to Cockrell delivered house, payment'on Hitt the down A Willbanks took it home. week later the''applied-' Cockrell'that- suggested to advising called Cockrell "him he-had drawn1 ‘ house loan the cost of the tiori for the' up agreed another contractin' $550í);' padded of'this- be to him amount of and asked to come $4740 frofn the to loan padding was increase'the sign it. told over Willbanks Cockrell & to Savings Loan Association Pioneer bripg the to -with $5500 him.: only paid' during! $3850, be leaving to place 21, 1951, on March took at.which construction; reluctant was that Cockrell signed time Cockrell his wife a new manner 'of house in this' pad the cost contract, neither acknowledged but themof assurances óf do so 'agreed but on brother, Craig Willbanks it. and his Law was and Hitt that rence, signed the new contract as cases; Mr's. Cock- customary in contract, The new among builders. other particular knowledge (at this rell had no specifically provided: things, “This con pad price scheme O'fthe time) of this supersedes tract all other contracts.” After' house increase the loan amount.of signed thé Cockrélls Willbanks liad n price understood the house' contract, and she Craig new Willbanks' asked for $4740; 14, 1951, be that on March was to return note and Cockrell the' Hitt called to his office and Cockrells returned the note to him. Willbanks told advised that the loan were had been Cockrell the time of this transaction not tentatively approved by Pioneer Savings & new to record the contract because it was Association, and the Cockrells Loan exe necessary to do so. 'The first con necesary note and mechanic’s cuted and tract was not returned to ‘Cockrell and re-' lien contract sent possession materialman’s be mained Craig Will- - Savings ; Pioneer & Loan Association. -Craig banks Willbanks without of the note executed knowledge The amount Cock- Cockrells, filed the first $5500, and the rell and County contract with the Clerk Lime n prepared ‘County, lien contract executed Texas, stone for record on March in; 15, 1951, the Shortly and it was recorded thereafter the bank notified Cock- Lien rell Records on March for the first time' that held contractor construction of the house started and lien to secure its- advance- ‘ day. 'two after the second contract ments to Thereafter, Willbanks. n April 22; 1951, March was executed. Cockrell tendered in cash paid Willbanks, amount of which the bank refused. bank, the sum check drawn on the After the 'contract was abandoned Cockrell n appellants’ contention spent and it completion. $1002.06 in accord with Much has been questions written on contract, time and at the same second lien' involving the foreclosure of mechanic’s -and Cockrell a issued - liens, but we *4 general the ap believe rule receipt payment the the and for for $890 plicable and controlling here wfis announced $760, the 'difference of which was in the early Cavitt, case'of Wheelock v. 91 ' and the contract "between the $5500 679, Tex. 796, 45 797, S.W. Am.St.Rep. 66 (The no notice of the for bank had $47401 920. The statement there madfe is: “In receipt transaction.) -This stated foregoing this state the rule is firmly established that payment, in that it a down effect was1 women, where a has, married who with her receipt further stated- that the amount the husband, signed a deed conveying sepa Savings from & Loan due Pioneer Associa estate,' rate real appears an before officer 12, April the , tion 1951 n law'; authorised1 purpose the ac of hank advanced to Willbanks the sum. of knowledging conveyance, and the officer endorsed the and Willbanks $5500 $1200 to -his duty taking in such(cid:127) acknowl 'fails over to the hank and edgment, but makes 'a which certificate' hank the mechanic’s and materialman’s ' compliance shows a law, voith the full , property Will- securing on the such note.. is conclusive the' married certificate date, had, prior two to this weeks hanks in am innocent .worntm vendee who favor of deposited the note and first con -value, paid it notice. that(cid:127) -without for. . tract with the hank. perform, to his 'duty, .as-re officer failed law,”. quired by (Italics ours.) ,in brief fol- Appellants their make the . Ap Amarillo Court of lowing (a) admissions: that the had Civil hank (cid:127) peals in the case Equitable of notice the first contract as- v. no Jones Building Association, & Loan prior them had to signed to Willbanks 45 S.W.2 (1931 438 writ applied d ref.) the foregoing been rescinded the Will- assignment rule foreclosure the Cockrells in what of banks and has'been' mechanic’s lien to a‘ (h) designated contract”; very the “second factual-situation similar to the one note; here. We do not notice of the of the no find $5500 Supreme departed -Court has had from the (c) no notice that 'the first contract fore going rule. believe a by fraud, .careful procured reading from of adversely appellants’ answers properly acknowledged had not and that she Jones contentions and that contract; comment thereon (d) knowledge first no would ' be of on avail. See Stone, also Hickman v. of the second contract. Cockrell execution 255, 833; Tex. S.W. Adkins depositor 69 5 Polk Co. bank but" one was a no Rhodes., 351; Tex.Com.App., v. 24 S.W.2d him or his the bank advised Sanger Calloway, v. Tex.Com.App., 61 S. Willbanks had transaction .with Rhodes, 988; Sun W.2d Oil Co. bank, did the bank at that time in- nor v. (cid:127) Tex.Civ.App., (writ 71 S.W.2d ref.); 413 Loden v. spect the house construction. On' under Carothers, Tex.Civ.App., 85 S.W.2d 18, 1951 the bank April advanced a second Savings United Bank of Detroit v. May 28, and on 1951 $1200 Frazier , Tex.Civ.App., dis.; 933, 116 S.W.2d er. Gulf $1200, third totalling it advanced a $3600 v. Co., Production Co. Continental Oil to Willbanks. Cockrell no it advanced had 488, point page S.W.2d knowledge of these advancements. About 1951 Willbanks con- carefully abandoned the We have opinion considered the completion. Cosgrove struction of the house before of this in Nelson, court Tex. opinion County an'd been filed Clerk Civ.App., and the with 269 S.W. protect dealing in no effort to with Supreme same case those our of this without notice of the inval opinion 277 S.W. the mechanic’s lien contract Engel, idity Court in' Hill v. important it ref.1935), conflict note. We think see no (writ we state that the Cockrells with the here kn'ew foregoing decisions rule here padding of the note was applied by the Amarillo Court stated and larger loan on cáse, supra. getting to aid them in the Jones Moreover, property. the record shows authority under the view that It is our April 11, dispute that on case, supra, and the undis- of the Jones paid by check the sum Cockrells evidence, duty trial of the puted it was construction house appellee’s for an in- motion grant the same time Willbanks so, and, verdict, having to do failed structed receipt appellee’s grant duty receipt on the contract and a for the veredicto, and judgment non obstante further amount of which was the things in all af- doing his action so difference between the note- firmed. price of contract- which was *5 Rehearing. of For amount the debt and Motion is,obvious to create. intended It that when rehearing, Appellants, in their receipt gave his for the $890 opinion that our hereto- in effect contend receipt payment, which further acknowl this is in conflict with handed down fore of-$760, edged of Engel, S.W.2d opinion in Hill v. 89 court’s of n'ote was satisfied 1936, ref.). 219, (opinion writ We 221 equitable practical for all opinion. understand not so perpetrated fraud on Mrs. Cockrell was Alexander- said: “In In that Justice important We it satisfied. think is also appellant invoke the interven order money state here that all the advanced behalf, principles equitable in his tion of the bank on the note and allege him to at least on the burden was April'11, 1951, advanced after was and at that, fault on prove the time the made its advancements result to him if injustice would part, an perpetrated against on the note the fraud right to enforce the be denied he should longer Mrs. Cockrell no existed. necessarily included pretended lien. prove part on his obligation Since the bank had no knowledge in reliance va purchased the lien on its foregoing transactions, or notice it any notice of its in lidity and without that the is our view factual situation validity.” clearly applied case is within the rule this supra, pertinent Engel, to- court in Hill state here that v. be We think think dealing was 'a we that under this with factu cause record Alexander Justice al equitable estoppel mechanic’s lien con doctrine where the tendered situation “ absolutely ‘The against void. We think it is the Cockrells. tract here, point estoppels prevent inconsistency out did is to pertinent to we also * * * opinion, resulting injustice’. Cockrells fraud ‘Es- original in our toppel prevention to remain for the is a doctrine permitted injustice. protection after It is Mrs. those hands padded n’otewas to the ex have been' misled that which that such who knew fair, It is true that face was and whose character its tent parties represented deception Willbanks to Cock- as will delivered request not, justice, interest of but on Willbanks’ 'Cockrells be heard to rells ” deny.’ Denson, note to Willbanks and See Kuehne v. 148 Tex. returned 1006, 54, 1009,point surrender of note and later demand 219 S.W.2d See any investigation Co., to ascertain 861, make Dobbins v. Martin-Buick Ark. did not 216 620, or not the mechanic’s and cases cited in Texas 227 S.W.2d whether con ISA, Estoppel. In this Digest, Vol. that we say should think we we nection pleading bank’s re-examined

have the issue tender it is sufficient think

we Gard Scott v. estoppel. equitable See 513, points 628, ner, 156 S.W.2d (Com.App. op. 141 A.L.R. 1 and Smith, 146 Tex. v. adopted); Wisdom Gribbs, 164; 147 Tex. Rick v.

209 S.W.2d Tex.Dig., Vol. ^34(6). think likewise

Pleading, so ten undisputed the issue

proof appellants’ mo

dered, for that reason See Points rehearing is overruled.

tion for supra. Engel, Hill v. GRISHAM.

GRISHAM No. 3074. *6 McMillan, Stephenville, C. Truman O. Appeals of Texas. Roberts, Hico, appellant. of Civil E. Waco. Allen, Haniilton, appellee. H. W. 26, 1953. Feb.

HALE, Justice. appeal nonjury is an from a trial of grounded which was a- divorce suit After allegations of cruel treatment. hear- pleadings the court ing the and evidence be- appellee granting decree rendered a low him awarding the title and divorce possession Studebaker automobile. of a points upon ap- two which her Under the based, says appellant the .court erred peal is (2) granting divorce (1) awarding the because him automobile evidence, insufficient to show cruel show that the or to automobile treatment appellee. property of separate was the Art. 4629 of Vernon’s Tex.Civ. Stats, a decree of divorce where authorizes party marriage guilty either n treatment,' excesses; outrages cruel other, “if such ill treatment is toward their living as to render a nature of such treatment, insupportable.” Cruel together- statute, meaning of within may degrees. It variable term of relative innumerable acts combinations consist