*1 аny moot just other disposed moot, be it should become will accruing us all courts in the case before All costs case. plaintiffs were who against taxed in the court. trial intervenor is dismissed. case Supreme June 1939. adopted Court
Opinion Rehearing 11, 1939. October overruled et Jones, Administrator, P. al. B. v. J.
J. 1939. July No. 7281. Decided Rehearing overruled October (130 957.) Series, 265; W., Series, 2d 2d W., *2 Houston, plain- Bracewell, Leddy J. both A. C. in error. tiff might ex- time provided that deed the timber Since year per acre fifteen cents upon the
tended by depositing grantors, that amount advance imposed credit, and the instrument obli- to their the bank *3 accept grantees payment or gation to make said part of on the by lapsed extension, option purely an аnd was said same stipulated in grantees payments as to make the failure of the 597; Portwood, 89 Texas 34 S. W. v. the deed. Jonhson Stewart, 926; Arnold, (2d) v. Temple S. W. Grier Lbr. Co. 1176. 136 S. W. Walne, H.
Baker, Botts, Andrews & and Walter Wharton Houston, in error. for defendants all of Presiding Judge Smedley opinion delivered
Mr. Appeals, B. Section
Commission Helen M. the estate of administrator of Plaintiff Jones, wife, Broth- defendants error Gibbs his deceased sued decreeing judgment a Company a deed to obtain ers & conveyed Brothers' & Com- to Gibbs and his wife Jones survey pine a of land pany timber on the merchantable removing longer County operative and from to be Walker in error the claim defendants the cloud cast the title under deed. remove the timber said to cut and Judgment in favor the trial court
following was affirmed the Court an verdict instructed (2d) Aрpeals. 103 S. W. Civil being survey land, A. Mills con- survey the Seaborn property M. acres, separate of Helen taining 1981.2 her executed and husband a Jones, April she and on (cid:127) Company for recited conveying Brothers & to Gibbs deed paid considerations and other valuable of $5.00 consideration eight pine inches and over timber merchantable all stump granting survey the to on the said of land and agreed all cut of said and timber on said land. It was stipulated grantees the deed that reimburse should grantors eighty per the the for cent of all taxes assessed removed, land until the timber should cut and and that grantors should render the land and taxes year year pay grantees and all taxes accrued and thereon eighty per render for the deed bill cent. The gave granted Company, and to Gibbs Brothers & their heirs assigns years period and “a full of ten from the date thereof within which to cut remove said timber from and off important question said land.” The to be determined here is grantees complied following para- whether graph have with the giving privilege contained in the deed them the of ex- tending year cutting removing period provided the ten the timber: agreed stipulated grantees, “It is further their assigns may years heirs, hereof, successors and have five ad- they may ditional time or such thereof as desire after granted expiration years of the ten hereinbefore within conveyed, by pay- to cut and remove which ment to the fifteen cents part the timber herein grantors, assigns, their heirs or of the sum of per per year acre for the additional time or such grantees, assigns may desire, thereof as their heirs or per year which for as much as one of fifteen cents acre shall be year payment may advance, and the said deposit
be made thereof in the First National Bank of grantors, grantees, Huntsville, to the credit of the their may assigns, any part heirs or have of said additional five *4 years portions conveyed on which of the timber herein has years making by time, not at the end of the ten been cut free deposits per per year of the fifteen cents acre in advance in year year; the said grantee, but in no bank event shall the assigns, their heirs have hereunder more than yeаrs in all within which fifteen to cut and remove said timber.” undisputed parties The evidence shows to the sale 6,130,000 that there were of the timber estimated feet tim- survey by paid and that the ber on consideration in fact grantees grantor for the at timber the time of the price $26,520.00, execution of the deed was a of $4.33 per feet. thousand Wynne of the After the execution timber deed A.G. made aggregating principal to Mr. and Mrs. Jones three loans amount by notes secured $11,563.66,evidenced the deed of against land, on by Mr. and Mrs. Jones trust said executed February 1, 1929, providing in the event of trust the deed grantors the land pay taxes on failure of the obliga- might pay and that the same owners of the notes grantors payments should be of such tions of the on аccount secured the deed of trust lien. leaving 7, 1930, sev-
Mrs. Jones died intestate November surviving husband, eral children. Plaintiff appointed her qualified of her estate. Jones and as administrator years pay 1923 to and wife failed to taxes on the land for 1931, Wynne, acting pro- inclusive. A. under orders G. against paid court in estate accumulated taxes bate Mrs. Jones’ crediting payments the land in a net amount of after $841.53 Company, received him from Gibbs Brothers & who agreed portion a taxes. reimburse Jones wife for agreement performance In the of that Brothers & Com- Gibbs pany paid $3,799.26 the total sum of for taxes from 1923 duly Wynne inclusive: The verified claim amount due on the notes and on account of taxes him $16,386.15 by plaintiff in the total sum of was allowed in error 29, 1932, April approved by pro- as administrator on bate court on June Wynne 1932. No other claim than that of was filed Mrs. Jones’ estate. At the time of her death owned an interest in the home at Mrs. Jones Hunts- ville, community interest in a tract of 437 acres land in- by plaintiff in at ventoried error a one-third in- $1005.00- in a 320 acre tract of land terest which valued per acre. $25.00 granted cutting primary period years of ten removing April ended on and at the end timber 1,891,000 period in error had cut and removed leaving 4,231,000 uncut, feet, feet the area from containing February 610 acres. On had been cut 1933, plaintiff B. error J. Jones wrote and delivered to following Wynne the order: A.G.
“Huntsville, Texas, 2-16-1933. Co., “Messrs. Bros. &
Huntsville, Texas. Wynne pay A. the rental on the Mr. 1371.2 acres
Please G. acre, survey at 15 cеnts total A. Mills $205.68 *5 April 30th 1933. due Jones, B. Admr. Est. of
J. Jones, Mrs. Helen M. deed. “April 30-1933.
1981.2 @ 1371.2 acre $205.68. 15/ “Deed J. B. Jones to Bros. & Co.” foregoing Pursuant to the order Gibbs Brothers & Com- 29, 1933, $205.68, pany April paid Wynne on to said sum against by Wynne his which was credited on account estate of 1934, Jones for taxes him. On March Mrs. made a like Gibbs Brothers $205.68 by Wynne upon Wynne, tax which was also credited his Plaintiff in error did account the estate of Mrs. Jones. directing Company not execute a written order Gibbs Brothers Wynne, pursuant last it was made to make this Wynne, plaintiff to a in error and which conversation between repeat, Oliphint, Wynne repeated, to J. or undertook W. Company. representative of Gibbs Brothers learning plaintiff in Upon thereafter error declined to recognize Wynne, payment made to Gibbs Brothers & the last 7, 1934, deposited Company, in the First on June National to the credit in еrror Bank Huntsville $207.68 April 15, Defendants in on de- administrator. credit of posited in the the estate same bank $205.68 any Plaintiff in error did not withdraw Mrs. Jones. money accept deposited and when notified of it refused to so money deposited on June was withdrawn it. The Gibbs, on 1934. Dr. P. in error November J. partnership, Gibbs Brothers & Com- one of members purpose partnership pany, it was the testified rights due, pay preserve their timber and to the amounts willing they had both that at all times been able pay the same. by plaintiff in position taken error is that defendants remaining longer to cut the timber have original (1) effective term
on the land because: provision years, for an ten with extension deed was option; (2) year, was a mere year to such ex- being option, striсtly a mere had to provision, com- tension grantees grantees; strictly (3) did not plied with provision in that failed comply with the extension payments in in 1933 and annual advance 1934 as make the required. Company of Houston Oil Texas court is
This committed *6 a Boykin, the rule that to 109 Texas W. standing conveying with the on a tract of land deed timber stipulated presently right time does not it to remove within standing timber, grantees title to the with invest the only passes much as is removed within to him title to so timber right stipulated. It follows that the defendants the time at end remove the timber terminated the in error to cut and deed, years April the date of the ten they from things necessary to did those under the deed unless right keep to and remove the or alive the cut timber. extend paragraph quoted, of the deed above substance The giving grantees additional time for removal of the tim to the years granted, expiration the ten years first is that after the ber time, grantees may five additional or such the have desire, grantors by payment they may as to the thereof year per per year acre in advance from sum of fifteen cents payment may year. provided that the to It is be made either assigns, grantors, by deposit or or their their heirs to (cid:127) National Bank at Huntsville. the credit long the First While gives grantees right the the sentence which to additional involved, time for removal of the timber is somewhat we be clearly appears from use of it the words “on which lieve conveyed portions of the timber herein has nоt been cut at years parties of the ten free time” that the end intended computing land in to exclude cut-over the total amount per paid per annum at fifteen cents acre for ad ditional time. small, payment for
The to be made the extension is fifteen annum, suggests per per it cents acre is intended compensate nature of a rental the land for owner of the land while the uncut timber stands on it. the use We however, cannot, stipulation payment treat merely per acre annum as a covenant for fifteen cents rental, payment required an annual for such is grantees’ rights under the extension of the the deed which years end of the ten in the at the absence of the terminate payment. right the additional time for the removal of the grantees option, may of an for the is in the nature obligated but are not exercise is of this nature that It is because do so. grantees must be held to all the literal
error insists usually required performance of one who has the strictness ordinary option buy acquired land. Defendants in error differing privilege important under the deed a in two respects ordinary buy. option of the or- The holder dinary option usually paid pays has a consideration for it and purchase price greater part it, only property, for the or the option. if and when he elects to exercise the Here full the consideration for the timber buy ordinary option time the deed was executed. The real *7 conveying contemplates prop- estate the execution of a deed the exercised, erty option in the event the is and the title and right through property acquired pass are and under and timber, But, conveyance by the deed. the terms of the of the cutting removing the for and is time the timber extended years making beyond primary period merely by the of ten grantee payment the of fifteen cents acre. the has When option by pay- exercised his the extension for itself, ment, ordinary then the deed as in the case of an lease' giving option of land lessee an for extension of the the term, operates to extend the term and a becomes contract both original deed, upon for the and for thе extended term. The exercising option extend, the present grant, of the becomes in effect a date, right of its of a the use of the land including period, extension, the for entire and it serves as the Brown, required the evidence the statute of frauds. Hill v. 780, 784; Jonakin, Ky. 277, Khoure Bros. v. 222 225 S. W. 612; p. 885, L. 16 R. C. Sec. W. privilege Since the to extend the time for removal of the given supported by in and is the deed itself is the agreed deed, consideration the execution the the timber, treated, upon of the and as the deed value inasmuch is exercising grant privilege, present the of the. as a for the full term, including extension, period judgment the of the a de creeing longer operative deed that such became no at the end grantees’ primary cоmply of the term the failure to strictly extension, provision with the terms for while grant technically adjudication an terminated terms, would, considered, certainly practically its own grantees,' viewpoint of the amount a from forfeiture property fully paid. for of a valuable option In of these view differences between extension granted by ordinary in the deed to defendants error and the buy land, opinion that, determining option to it is our things necessary did error those under whether timber, exactly to cut the the deed to extend too compliance option the terms of the with should strict not be equities in favor of required and that defendants in 635 having price purchase for all paid of their on account it, having should removеd less than one-third the timber disregarded. not be Company Brothers &
Plaintiff in error contends comply terms paying with the failed to renewal rentals pay- following (1) option because reasons: not made to the heirs ments of the renewal rentals were Jones; measured (2) have been Mrs. the amount should because acreage acreage survey rather than of the entire cut; (3) be- the timber had not been of the area from which authorizing the probate no order of court was obtained cause Wynne; because (4) rental Wynne an order was made both without probate and without an order court error. contention, is to be observed
As to the first privilege paragraph deed in which the of ex- of the timber given grantеes, heirs, provides that their suc- tension is assigns may by payment have the additional time cessors *8 assigns grantors, per or of fifteen cents their heirs to the indicating annum, pay- per the intention that the acre thus grantors, land, or other owners of the or made to the ment be who, person persons or on account of the death of the to the owners, by assignment, grantors or reason of are law- other arising fully to the rentals from the land. entitled receive We language general of an intention to in evidence find pass such than rentals to heirs rather to the ad- the renewal the beyond put them the reach of of or to creditors ministrator the estate. Article 3314 of the Revised Civil The of Statutes substance estate, persоn dies intestate all of his is that whenever of heirs, immediately personal, in shall vest his
both real may exempted by law, that, except it be vests but subject payment of the of to the debts the intestate. them gives right expressly to the administrator to the The article the estate as it existed the death of the possession of the aforesaid, exception intestate, estate to with the the be held disposition in accordance with the law. this Under in trust for the title to the land the the renewal statute both intestate, property rentals, of the whether real or as all other subject heirs to the in the of the personal, vested renewal rentals that became due intestate. debts the death and when paid after Mrs. Jones’ the estatе was and were arose from and were a process of administration estate, although her heirs, the title to them vested the they were, under the terms Article estate assets her subject to her payable debts and to the administrator to be disposed of in accordance with the law. error,
Plaintiff support position that re- the newal paid rentals should have been to the heirs of Mrs. Jones him, rather than states, relies authorities from other an examination they merely of which shows that hold that renewal rentals should be the heirs because have title to the land from which the rentals arise. The rule express announced such authorities cannot override provisions of property Article 3314 make which all of the intestate, except exempted, subject intestate, notwithstanding debts fact heirs, give title is vested the administrator possession to take property all of such and to administer it. stated,
As paragraph giving has hereinbefore been privilege extending cutting timber, the time for in our opinion, clearly indicates parties the intention of the amount of the acreage renewal be measured the uncut survey. If, rather than the number of acres in the entire how- ever, ambiguity expression can be said that there is in the paid, meaning amount doubt as to its is removed practical given the by portion construction to this of the deed error, plaintiff in in his execution of the order to defendants quoted above, pay Wynne been has April 30, 1933, aсres, rental due area, on 1371.2 the uncut acre, amounting at fifteen cents to $205.68. To payments sustain the contention that made Wynne Company
Brothers & in 1933 and 1934 were insuffi- *9 cient to extend the time for removal of the timber because they by .court, were not an probate authorized order of the holding in error cites a number of decisions may not, court, accept an administrator anything without an order of money payment than other of a debt due the estate, property, and that a of personal, sale whether real oí supported must be an order of court. Some of such cases Swan, 474; Trammell are: v. 25 Texas v. Fidelity Browne & Deposit Company Maryland, 55, of 98 593; Texas 80 S. W. Reynolds (Com. App.) 914; Loving v. 207 S. Webb W. Clark, 590; Harper 228 S. W. v. Merchants’ & Planters’ Nationаl Bank, (2d) 351. These decisions W. are based and 3553 of Articles 3430 the Revised Civil Statutes of
637 of court an order to obtain requiring an administrator one due payment of a debt taking property or claims before any property forbidding of the sale estate, other and the the belonging authorizing an order of court without the estate to the same. rentals renewal payments of of the In order, direc- at the Wynne on the Company to Brothers & tion, acceptance neither there was plaintiff in error of payment property in of a claim or of administrator belonging to the estate. property sale of a debt nor the merely partial payment way made in this administrator estate, against Wynne’s account claim on money of a claim paid by Mrs. paid by should have been him which of taxes by plaintiff error had been allowed This claim Jones. no other approved the court. There were
administrator property against other the estate there claims evidently pay in value to the ex- was sufficient estate which penses administration. Chapters of Title 54 of the Revised find in 18 19
We presentment which relate Statutes Civil claims, requirement administrator payment paying claims which an order from the court before obtain approved, allowed and when he has funds have been contrary, payment. estate sufficient for their On the Article duty Chapter expressly 19 makes it the of executors 3533 of administrators, belonging and estate, when have funds statutory pay priority and claims in the order of their chapter authorize articles of the same classification. Other claim, unpaid owner of an when the executor or adminis- thereof, claim, pay or a trator has funds sufficient payment, an order from the court and fails to make obtain directing payment to made. payment of a debt the estate with
An administrator’s not and without verification the claim is out order of court may void; have credit in his final account and the administrator that the was in fact payment if it is shown debt owed for such by White, time of death. Lockhart v. at the his the deceased Blackburn, 102, 108; 116 Texas Trammell v. Texas in error had rentals If renewal W. by plaintiff directly plaintiff in error received, Wynne’s money partial settlement Wynne so constituted, estate, have under would claim stated, though a lawful probate even have been facts authorizing court an order made without *10 made, plaintiff be in error would have been entitled to payment being true, credit for such on his final account. This it payment follows that Wynne of the rental to on plaintiff error, order of applied in or at his direction to be upon Wynne’s claim, legal practically was both and in effect payment plaintiff of the rental opinion to in It error. is our payment that in this manner and without an authorizing order of the court it was effectual to extend time for removal of the timber. gave Wynne
Plaintiff in directing error no written order Company pay Gibbs Brothers & to him the renewal rental due April testimony, including plaintiff that of in clearly carefully examined, opinion we have in our plaintiff gave
shows that his consent that this paid Wynne intended, rental be at least until after its payment, paid. that it should so in Defendants error acted upon plaintiff expression willingless in error’s of his paid rental be in the same preceding manner as in year payment Wynne and made on March 1934. The amount was, paid paid so like that by Wynne credited against his account the estate for taxes. slight testimony conflict between the plaintiff Wynne
error and that of as to what was said with reference making payment Wynne of the rental raised no ultimate jury’s issue of fact for the undisputed determination. If the establish, evidence does not doеs, as we believe it the fact plaintiff in error authorized or payment directed the Wynne, conclusively proves the 1934 rental at least that making payment defendant in error in Wynne acted under justifiable, mistaken, the honest if plaintiff belief that had error consented directed be made manner. briefly supporting state some We evidence the fore- going Company conclusions. Gibbs Brothers & had. agreed price for all of the timber at the time the deed was executed. More than two-thirds of the conveyed by required the deed was still uncut. The for the ex- small, tension was On his own initiative $205.68. given Wynne an order
error to Gibbs Brothers & Com- directing pany pay them to him the 1933 rental in like amount. paid Wynne It and credited on his account estate for taxes advanсed him. still remained a bal- There Wynne on that account ance due excess of the amount of rental for 1934.
639 with in a conversation Plaintiff in error testified that Wynne for the he him he wanted an order asked whether rent, money 1934, Wynne not option and that did 1934 Wynne question. He testified further that he asked answer help paying question he wanted him in because Wynne plaintiff in taxes. testified that this conversation give rental, promised for the 1934 error he would him an order representing Oliphint, that a short time thereafter Gibbs he, Wynne, Company, Brothers & asked him whether was to 1934, payment Oliphint plaintiff have the that he told days error had told he could have it and that a few there- him Company payment after & made the him. Gibbs Brothers Wynne further testified that when he learned from Gibbs Company plaintiff repudiated Brothers & payment in error had plaintiff why he asked error he had refused to recognize payment having give promised after an him plaintiff having deny order for and that error did not promise, you made the answered: “That was before sued testimony Oliphint’s respect given me.” with to the information by Wynne and the action of him defendants in error in payment substantially in reliance information is testimony Wynne. the same as the 7, 1934, immediately learning June plain-
On after declining recognize payment tiff in error was made to Wynne, Company deposited Brothers & in the $207.68 First National Bank of plaintiff Huntsville the credit of in error as administrator.
It follows from what has said that if been rental Wynne the renewal on March was made at thе compliance direction there was on provisions with the timber, deed for extension of the time for removal of the plaintiff in did that if error not direct the to be made Wynne, compliance there was not such and the time was extended, peculiar not unless reason spe- facts and grant may equity cial circumstances relief from a literal en- prescribed by the conditions forcement of the deed. applied decisions, announced and in a
The rule number of construing provisions for extension similar to those con case, grantee tained in the deed the instant is that must strictly comply agree with the terms conditions of the given equitable and will not ment for the extension relief agreement compliance, bеcause the in the absence is option, of an and unilateral option, or in the nature in its an 640
obligation. Temple Arnold, (Tex. App.) Lumber Co. v. Civ. 14 926; Co., (2d) S. M. Ritter 167 Va. W. Hall v. W. Lumber 95, Co., 503; Murphy Springs 187 E.S. v. Schuster Lumber 412, 427; Wallace, 215 Ala. 111 T. Co. v. So. W. Smith Lumber 170, 546, 663; Forehand, 218 Ala. 119 So. Allison v. 219 Ala. 532; 248, 121 Bateman Kramer 154 N. So. v. Lumber Co. C. 474, (N. S.) 70 S. E. 34 L. R. A. 615. also Johnson See Portwood, 596, 787; Texas Williston on Con- W. (1920 Ed.) 1634; Options, p. tracts Vol. Sec. James on 848, p. Sec. foregoing
That rule is announced authorities *12 absolutely not an one is evidenced the authorities inflexible hereinafter cited and discussed. optionee comply strictly
It is failure of the held option with the terms or of the will be excused conditions brought when such failure is about the conduct of the Montague optionor. Corporation v. E. P. Burton Lumber Com 40, Virginia pany, 147; E. 136 S. C. 134 S. Cromartie v. Company, 712, 945; 173 E. Carolina Lumber N. C. Wil Herbert, 489, 685; Options, Md. 25 son v. 76 Atl. James on Sec. 863, p. 403. optionor than fault of the will a
Other facts furnish basis prevent equitable interference termination the Errors, right. Supreme optionee’s The Connecticut Court of carefully opinion, reversed and a in a considered rendered trial, judgment in favor of the landlord' and ordered a new might present tenant to the end that detail the extent hardship suffer from the he would enforcement of a give days thirty requirement of the lease that he notice before expiration of the term of his desire to extend the lease. Stein, 619, 50, 97 118 F. B. Fountain Co. v. Conn. Atl. 27 thirty-days construed the A. R. 976. The court clause a L. precedent performed must be before the ex- condition which begin lessee, renewed tеrm could and held that tended or given having stipulated time, the notice within not it could a to relief unless establish waiver or such bring power equity it within the would to relieve. facts as granting prescribing upon equit- of relief In conditions that, grounds, the court said substance while relief able give if the failure to notive afforded has been due cannot be neglect, relieve, gross equity will or to willful absence neglect, fraud, surprise, failure when the results of such It said further: or mistake. accident fulfilling neglect precedent a mere condition “In cases mistake, lease, equity- fall within do not accident slight, delay will relieve when the loss to the has been small, grant lessor when not relief would result hardship to the tenant as to make it unconscionable to litеrally precedent enforce the condition of the lease.” Xanthakey Hayes, In 140 Atl. Conn. holding carefully
Connecticut court reviewed followed its cited, giving in the case last additional reasons and authori- gave privilege ties for its decision. The lease the lessee the term, expressly provided of extension after the end of the the lease would terminate and extension would given gave not be unless the lessee written notice at least sixty days before the end of the term. im- The lessee erected provements $4,000.00 upon premises value in ex- pectation enjoying during occupancy its term extended profitable thereon a established business. Due to for- mere getfulness gross negligence, and not to willful or the lessee give required failed to within the time notice of his desire judgment to extend The the term. court affirmed the mandatory injunction requiring trial court for a the lessor to restraining interfering renew the lease her from with the enjoyment premises. gist in his lessee the leased literally is that decision would be unconscionable to enforce condition for the extension when to do so would cause the *13 lessee, grossly negligent, who had not been to lose the value good improvements of the and the will of the established business. Supreme Carolina, Pope Goethe,
The in Court South v. 394, E. C. 179 99 A. L. R refused grantee equitable gave to the relief a timber deed which option an for an extension the term to exercised be writ- ninety days prior notice to the end of ten the term. Relief given the notice not was denied because was and there was grantee that proof of waiver or the failure of the to exercise misleading required any option in the manner was due to grantor. representation or conduct of the In its statement controlling decision, court, however, its of the rule recognized thus qualification to the rule as announced in B. F. Stein, supra: Company v. Fountain renewal, gives provided has a he a lessee
“Where specified a time to the lessor of his intention at or notice before renewal, waiver, privilege of the absence of to exercise giving precedent notice is a condition of the which must stipulated time; and, in complied with within absence warranting equity grant- a special court circumstances 642
ing relief, if the notice is not to a renewal is lost given provisions of the lease. F. B. in accordance with the 47; Stein, R. 118 A. 27 A. L. Fountain Co. v. 97 Conn. Italics). (Our and annotation.” Refining (2d) Company, Fed. Gloyd In Midwest Appeals Dis- for the Tenth the United States Circuit Court judgment of the lessee trial in favor trict affirmed the court’s gas for an “unless” oil and lease suit to cancel the lessor’s pay on or the renewal rental before failure of the lessee requested had the lessee named in the lease. The lessor the date making payment pay the rental to him instead designated day depository in the lease. A week the last before deposited postoffice lеt- payment in the at Denver a for lessee containing properly for rental addressed ter check City. lost in mail. The letter was the lessee Oklahoma discovery Immediately upon letter had of the fact that the been rental, lost, another check for the lessee transmitted lessor payment passed. refused the time which was because relief, equitable that the lessee was entitled to It was held to reach the lessor due failure because the resulting from causes over which the to an accident lessee had because, further, promptly upon the lessee acted no control being the letter had not reached the advised recognized lessor. general grant equity rule will not court optiоnee option to an who has lost his failure to make relief citing stipulated, held, the time authori- within given ties, option “the rule is different where the is grounds equitable juris- and other a valuable consideration exist, as accident diction mistake.” Option Contracts, summary after a The text of James on rules, general optionee to the effect that an who desires binding option promise into a on the to turn his unconditionally and optioner make his election within the must expressed manner and on the exact terms time and requirements contract, failure to meet and that his these rights, option following: an end to his contains works *14 necessary present to now the view that these “It becomes rules, of which enforcement was so muсh insisted the strict decisions, are, nevertheless, early subject to, by upon the overruling equitable rules, by, other in ac- qualified certain grant equity of relief courts in in- with which cases cordance volving likewise, special mistake and under fraud or circum- prevented by accident, performance is stances, where and also estoppel optionor where the conduct of rule of the the enforce 863, pp. applicable.” has been such as to make that rule Sec. 402-403.
If plaintiff it is that in did assumed error not direct the Wynne, of the rental for 1934 to made to then proven by undisputed the facts and the circumstances evi dence have hereinbefore set out been are such in opinion, bring qualification our as to the within case the estab by foregoing generally lished the authorities to the strict rule applied options. application The case is one for the of “overruling equitable rules.” The action of defendants in error making payment Wynne error, plaintiff in instead of to caused, part by if not least, seems to have at been in plaintiff error, gross conduct of was not due to willful negligence on the of defendants rather was justifiable result of an honest and mistake. The termination to take the timber would cause defendants error to lose the value of more than two-thirds of the timber they paid for which those, transfer value or the those, heirs of whom full once been made. We unwilling are equity to hold a court of is without au thority prеvent hardship. such unconscionable judgment
The trial court’s is attacked as erroneous be- necessary parties, cause of propostion want of presented being that, plaintiff while in error as administrator adjudica- Mrs. estate Jones authorized to file suit for rights timber, tion defendants in error cut were hot defendants error authorized seek or obtain affirmative relief without parties of Mrs. heirs Jones to the suit. agree expressed
We with the conclusion Court Appeals opinion in its Civil wherein it said: “As we view appellees’ pleadings, present trial do not an affirmative of Helen M. the estate Jones nor action broaden the petition.” appellant’s tendered issues suit, purpose
The in error’s as shown allegаtions prayer petition, and the contained in of fact his declaring judgment is to obtain under timber deed have terminated
in error ing and remov- title the claim cloud cast under the deed. error of defendants contains no answer action cross The many paragraphs against plaintiff composed in error. The are allegations prayer in defense of suit. of facts the answer is as follows: conclusion *15 644 herein, pray having fully defendants answered “wherefore alleged cloud plaintiff’s prayer for the removal
that petition plaintiff’s the described from the title to timber estab- denied, of the Court defendants have decrees that be lishing right in and adjudicating their continued relief they and further have such other said timber may themselves en- show the law facts as under to.” titled judgment prayer for a affirmative
This is not an nothing more it asks for plaintiff title. In for substance petition. plaintiff his of what he seeks than a denial to the (2d) Sherrill, 687. The Texas 10 S. W. Thomason plaintiff take is that judgment rendered the trial court recover of and nothing by and that the defendants suit his right to the timber under the plaintiff the continued light pleadings, in the construed deed. When judgment which awards part of the negation plain- mere the deed is a under continued words, claim, adjudication an or in other tiff’s asserted deed has not terminated. the timber under application assignments writ have of error All presents them carefully and none of reversible considered been error. and the judgments of the district court Court Civil
Appeals are affirmed. July 5, Supreme Court adopted
Opinion DISMISS, ETC. MOTION TO ON PER CURIAM : filed, defendants'in error have after causes In of these each rehearing filing of and the motion for cause
decision disposition of the motion for in error but before rehearing, praying for dismissal the case on ac motion plaintiff in error to file a bond the failure count of alternative, and, entry in the granting of error writ plaintiff in error to file such requiring bond. oMer of an granted of error were the court inad- writs When requiring plaintiffs make orders vertently failed specify the amounts thereof accordance to file bonds Article 1747 of the requirments of Revised Civil with in 1930. While Article amended 2276 of Statutes executors, provides administra- the Revised Civil Statutes *16 give any guardians required on tors and shall not be bond fiduciary appeal or writ оf error taken them ca- their article, pacity, it not intended said has been held relating exclusively chapter found in a which is the statutes appeals of error from the trial court to the writs Court Appeals, lay down a rule as to writs of error from Civil Supreme Court, provision the latter courts to the and that governing Supreme in cases of writs of error to the Court is 1747, exempt executors, found in Article which does not. ad- guardians compliance require- ministrators from with its Mason, ments. Daniel v. 90 Texas 1061. W. However, are motions to dismiss overruled. an order day requiring entered in each of these causes
will this days plaintiff in error within ten this date to file in the trial court a in the sum of and to a certi- bond cause $100.00 copy fied of the same within said time to be transmitted to court, provided the clerk of this Article said 1747.
Delivered 1939. October
Rehearing 25, 1939. overruled October B. v. J. P.
J. Jones, Administrator, et al. July 5, Decided 1939. No. 7282.
Rehearing overruled October (130 W., Series, 274.) 2d