*1 Notwithstanding Judgment in their Motion stated above Jury.” stated consideration the reasons above of the For Verdict justified Appeals was not of Civil of Point Four the Court by the record. by points and sustained considered
In each the error respondents-appellants referred to Appeals the of Civil opinion of the Court error.” The as “fundamental court points Appeals The mere fact noted fact. of Civil as “fundamental error” errors of error referred various course, points not, prevent consideration would the proper predicate points Appeals if such had of Civil Court judgment non trial or in the motion for the motion for new in obstante for predicate However, as there was no veredicto. inasmuch motions, no any points there was in either of those they and sustained could have considered basis by been Appeals they were considered unless words, present In other that court to fundamental error. sustaining points Appeals” “decision of the Court Civil upon the error. It is thus that rest fundamental must that decision is basis opinions of this court in the conflict with the points questions raised above cited. cases None opinions falls within narrow field which our have error only as field delineated of fundamental error. judgment of the is reversed of such
the case points remanded to- that court consideration appellants’ may predicated of error brief assignments upon proper of error in their motion for new trial veredicto, may motion for non or as or their obstante of this constitute fundamental error under the decisions court herein cited.
Opinion delivered December Bank v. al. John R. Eidson et No. A-7562. Decided October
Rehearing 21, 1960. December Overruled (340 483) Series *2 H. W. Allen Roberts, and Truman Hamilton, Abney, both of Lynch Hammett & Hammett, J. N. Lampassas, peti- tioners. Rawlings, Sayers, Eidson, Scurlock & Worth, of Fort J. P.
Rice, Dallas, Moore, Waco, Magus Tom Jr. of F. Smith, of McAllen, respondents. opinion delivered the of the Court.
Mr. Justice Norvell findings jury upon special judgment rendered The trial court against R. Edison John Bank and in favor Eidson, a A. heirs James who were the collateral and others and the Eidson judgment as between bank bachelor. possession recovery title and for the heirs was 443/500ths Hamilton of land located in in 600 acres interest undivided judgment portion was reversed County, This Texas. relating Appeals. That remaining undisturbed was left interest 57/500ths noticed. 327 need not further litigation A. transactions between James arose from This Perry, deceased. of whom now and E. A. both dealings National Bank’s resulted in such Whether acquiring mortgagee’s merely interest outright ownership or *3 corporate of The Eidson stock land and 443 shares in the organized by Eidson, is one of the Lake, corporation a Club case. disputed issues asserting granted points three writ error
This Court that: in substance any estopped to to assert claim Eidson heirs 1. The July boundary agreement dated of a 600-acre tract because Perry A. National James Eidson 1940 and between
Bank. title to the land under and The bank had secured Perry to Lake a The Eidson Club deed executed virtue A. Eidson E A. Bank and deed executed James to National by Perry in Perry subsequent quitclaim executed favor and a the bank. becoming title had secured virtue 3. The bank capital stock in The Eidson Club of 453 shares of owner dissenting opinion filed in thesis is set forth This Lake. Appeals. Perry A. Eidson and the between James The transactions as follows: Bank were National conveyed 18, 1924, acres of an April out On County, by him and located in Hamilton tract owned 1190-acre Texas, Lake, corporation, a Texas ex- The Eidson Club to outstanding
change 500 shares the cor- shares of for 443 poration’s capital stock. Lake The Eidson Club executed On November Perry convey purporting tract to National
deed to 600-acre Also, date, a deed which Bank. purported on this James A. Eidson executed convey Perry, E. A. the same tract of land to who president Perry was then the National Bank. Eidson likewise capital delivered 443 of the. stock in The Eidson shares Club promissory $7,660.44 Lake to the payable note for bank and executed 5, 1932, May presumably to the bank on to evidence monies advanced him. The deed from The Eidson Club Lake shortly execution, to the bank filed for after was record its but Perry the deed from Eidson to filed for until record April 4, Perry puit- at E. 1940 which time A. also executed a Perry ap- claim of the 600 acres National Bank. In the plication for writ of error it is stated that “Petitioner never it, 30, 1940, bank, denied that from 1931 to March was a mortgagee.” April gas
On 1940 the bank executed an oil and lease on subsequently gas the 600 acres executed other oil and leases. July 5, On National Bank and James A. Eidson agreement purporting executed an to fix boundary and settle the line between the agree- 600-acre tract and the 590-acre tract. The ment was made in refinancing connection with Edison’s a loan through on the 590-acre tract the Federal Bank. Land records of the Bank show the note *4 by executed on Eidson November 1931 was renewed and ex- tended from time to time. The last of this series of notes was by April 1, executed $5,488.50, Eidson on principal 1945 for the sum year Perry and due one after date. E. A. died on February 10, 1950 and January James A. Eidson died on 13, 1954.
By point, petitioner its first asserts that as a matter of law boundary the agreement recitals in the July 5, line 1940 absolutely estopped respondents above mentioned denying from petitioner’s ownership controversy. of the land in principle The by estoppel asserted Havard that petitioner deed and upon relies Smith, App., v. Texas Civ. hist., wr. no However, and the therein authorities cited. the instrument here involved was not a deed but a contract and such contract is not subject litigation. the rounding matter of this The circumstances sur- agreement the execution of the were as follows: The record title to the 600-acre tract Perry was in the National conveyance Bank virtue of a from The Eidson Club Lake Eidson the deed from Perry Bank. At that time also to National Perry from bank had Perry quitclaim A. and E. title to the 590 acres was The record filed for record.
been securing property the Fed- from loan on Eidson who was upon acres a fence the 590 Land Bank. There eral dividing as fence between might possibly considered Land Bank The Federal the 590-acre tract. tract and 600-acre there were no claims it made clear as a lender wanted extending would cloud fence which Eidson adverse to its title as agreement way. boundary mortgagee any a result As land It tracts of was executed. describes both boundary line a definite be- and and sets forth metes bounds fence hereto- them. The instrument also recites tween upon and that tract fore is located 590-acre mentioned claimed, part claim, any neved and has bank “does not now boundry line lying and the true said fence the land between the lands, A. dividing National Bank and J. and our said agree part strip land is a expressly that said S-13722-S, the Land security in favor of Loan Number security for Loan and also Bank Commissioner Houston, Land Bank in favor of the Federal Number 36112-S and that both the Land Bank of Houston have and the Federal
Land Bank Commissioner strip lying land liens said boundary separating said true line between the fence lands.” Bank as the owner This instrument refers to A. Edison as the owner of of the 600-acre tract and James upon primarily tract. It is this recitation that is relied 590-acre as constituting “estoppel an deed.” agreement purposes boundary was effective asserting any preclude claim from intended. It would against the bank any portion 590 acres Bank to the Federal Land however, not, specifically It was metes bounds. described conveyance acres a deed or from Eidson to the bank of purport It to be a foreclosure of therein. did described mortgage against property. It did not which the held bank showing operate estoppel against an Eidson’s given actually him to the deeds to secure a debt owed were *5 agree mortgage arrangements. bank and hence constituted We example:, Appeals point. with of on this For Civil Court agreements, partition estoppel apply to doctrine of does not 588, Hamilton, a Hamilton v. 154 Texas 2d binding simple a is not contract is not which recital suit upon Estoppel, See Sec. 58. based contract. C.J.S. may be 603, Estoppel, 6. Whatever Sec. also 19 Am. Jur. evidentiary other agreement reference with of this value estoppel would operate which case, as an it not issues in the preclude does of law. a matter the Eidson heirs as the claim of set propositions out and third above The second findings of the urged upon three petitioner are based jury1, viz: Perry a deed executed March 1940 E. A. a. That on foreclosing a lien in Perry the intention of
to the with bank Perry of the National Bank. behalf ap- during Perry prior to 1946 Bank or b. That National Lake, (assigned corporation,
plied stock in The Eidson Club extinguishment 1931) to the to the James A. Eidson bank debt owed Eidson to bank. have known of c. That A. Eidson knew or should James extinguishment application of his debt. of such stock to the granted, application this for writ of error was Court When Appeals its held the tentative view that judgment purpose Court limited remanded this cause to the trial court for the owing by ascertaining the Eidson the amount due Perry judgment estate in favor of to the National Bank so that recovery premises the Eidson heirs for could ren be Smith, payment dered of such sum to the Justices bank. opinion this Culver and the writer are of the tentative Appeals’ judgment construction of the The is correct. Civil majority Court, however, judgment of the construe the as general might providing expected, for a remand.2 As there cross-points are no filed.3 given majority as to the nature
When effect is view necessarily judgment Appeals it fol- of the and the lows that as the Eidson heirs cause between jury. relating possession was 1.—Six issues were submitted to One adverse unfavorably Two other related issues were not answered. answered These issues are not to the Eidsons. disposition now to a of the case. material judgment it the cause 2.—The of the Court of Civil remanded insofar heirs, controversy Bank and the between the related proceedings with “further inconsistent the views to the district court expressed opinion.” is therefore in the The nature of determined inspection opinion reported an in 327 S.W. Calvert, procedural problems involved, see 3.—For discussion some “ Error,” Texas Law Evidence’ and ‘Insufficient Evidence’ Points ‘No Review 361. *6 346 gen- a trial court under Bank must returned to the upon holding Appeals that of eral remand the of the Court Civil overwhelming findings against preponderance jury’s
the the “ Calvert, Evi- the and ‘Insufficient of evidence. ‘No Evidence’ 361, Error,” dence’ Points of 38 Texas Law Review l.c. granted, least, improvidently To some extent the at writ peti us, briefly the but as the case is now we will notice before Ap majority of the tioner’s contention that the Court resolving peals adopted the an test in erroneous formula or “overwhelming pre preponderance problem of the evidence” findings. King King, jury’s sented in In v. connection with the 662, appeared of 150 Texas 2d it the Court S.W. Appeals adopted wholly passing had a rule in Civil erroneous “overwhelming upon preponderance” points. This Court held that: holding assigned as error here.
“The
of the court below is
ruling
It is in effect an
‘any
of
erroneous
of law that
the existence
probative
support
de-
evidence of
force’ in
of
verdict
overwhelming
‘contrary
termines that
verdict
is not
to
weight of the
It is
cited
evidence.’
in conflict with
above
holding
to a re-
decisions of this court. The
also is tantamount
pass upon
assignment
question
to
violation
fusal
Rules 451 et
seq., supra.”
testing
problems
The rule
“no evidence”
is not
same
applicable
“overwhelming preponderance”
as that
to
situations.
hand,
“overwhelming preponderance”
issue
On
one of fact
other
Appeals
exclusive
over which the Court of Civil
has
jurisdiction.
long
wholly
adopt
as that
a
So
does
Court
approach
erroneous
tantamount
to a refusal
which would be
pass upon
“overwhelming preponderance” issue,
to
this Court
authority
is without
to
remand
cause to the Court
Civil
Appeals
determination
issue.
Ennis
of such
Hubacek v.
Bank,
State
Hubacek v.
Texas
Further is deemed discussion That affirming Appeals judg- in the 600-acre interest ment of the trial court 57/500ths judgment is affirmed. That tract involved remaining relating Court of Civil 443/500ths *7 judgment of the trial interest in the land which reverses existing controversy court as to the between generally the same
Bank and the Eidson heirs and remands trial, affirmed. new is likewise
Opinion delivered October dissenting. Smith,
Mr. Justice opinion ordering respectfully I dissent to that general judgment remand of case. The nature of the en- this tered can determined best be controlling expressed opinion, view in is the court’s findings. supporting jury that there was no evidence It is height general folly to order a remand in this case. The merely remand has ordered been because the Court of Civil Appeals, writing pages holding evidence,” after several “no complete evidence, etc., controlling absence of on all of the issues added: “Moreover, jury's we think the answer to Issue No. 5 so
contrary overwhelming weight to the of all the evidence as to under the doctrine announced in clearly wrong unjust and King’s Estate, In Re 150 Texas 2d S.W. we What just applies have equal said we think jury’s with force to the Special answer to Issue No. 6.” [327 691.] holding In view of the points, court’s on the no evidence there can be no doubt as to what court meant when it said jury wrong clearly the wrong verdict unjust. clearly was and It was unjust
and support because there was no evidence to verdict, King and not because of the doctrine in the Estate opinion case. There prior is not one word to the declara- regard King tion in to the Estate case which can be construed general to mean that the writer intended a remand of this case. purpose only The remand was for one and was trial legal court to determine amount of the indebtedness and the interest due thereon. petitioner necessarily view, had to take this otherwise petition granted.
his for writ of error would have never been Why say do I Appeals, effect, and reversed opinion groups questions
remanded with instructions? The presented court said: Eidson. The “* * * following: (1) grouped them into the have Since We dispute question the deeds in the evidence shows without given and the in one transaction Eidson to the stock were securing bank, purpose for the his indebtedness bank that such transaction created the mortgagee, mortgagor relationship of and proven that such continued until it situation otherwise; (2) was no Since evidence shows there mortgagor foreclosure on the land or stock relation of mortgagee all continued to exist at times Eidson and between bank, relationship appellants and such existed when filed suit; (3) jury’s their That the I and 4 do not answer issues support bank; (4) That favor of the the answers jury evidence, issues 5 and 6 are not sustained *8 contrary and that the answer to each said issues is so to the overwhelming weight wrong clearly of all the evidence as to be unjust and will not sustain the of the court.” proceeds group
Then the court to sustain each of no evidence points. Now, if the court had held there was some evidence support jury’s answers, jury that the but answers of the contrary overwhelming weight were so of all the evidence wrong clearly unjust King as to be under the Estate doc- trine, general would, doubt, remand no order. The beyond question record this case shows Law Review by my distinguished Article Associatiate and the Per Curiam King application. opinion doctrine in Estate has no in this completely ground case cuts the from under the bank and leaves retrial, no ultimate except issue for a the amount of indebted- ness and I interest. would only reverse and remand for a de- question. termination of this latter
Opinion delivered October
Rehearing overruled December