*1 re- property prior institution of possession to the of the comply court’s ceivership proceedings with and was unable prop- though disposition of the true even order. This would be erty In case purpose. our for some fraudulent had been made comply relators unable to were was not shown I am circumstances court and from all the facts and order of the impliedly court warranted the firm that the trial was compliance impossible. Ex drawing the conclusion Klugsberg, parte 2d 465. 126 Texas 87 S.W. Relator, Morris, argues must that under this order she least, life, for her or at for the remain in confinement balance argument period. is not founded. Undoubt- an indefinite This well she edly province of the court to conclude that it was within the her produce property the reason for or disclose could either inability she can obtain relief. to do so and in the latter event they guilty criminal act in
Relators assert that if mortgaged property disposition is an ade- there or concealment of remedy by prosecuting under criminal statutes. quate them setting contempt aside the order. But that affords basis for fact enjoined that if commits an act which is It is well settled one penal committing act laws from he Looper, and if that violation and the may contempt. parte punished for the crime Ex both Rep. 129, 345; State, Sparks Cr. Rep. Cr. 246. custody to the of the sheriff. I would remand the relators February 1,1961. Opinion delivered 1,1961. Rehearing March overruled Harry Louis Pollard v. Mrs. C. Steffens. S. February 1, 1961.
No. A-7170. Decided Rehearing March 1961. Overruled 234) (343 S.W. 2d Series *2 Cofer, & Austin, and John D. petitioners. for Cofer Cofer McCracken, Dallas, Harold W. respondent. for Court. opinion Culver delivered Mr. Justice follow- and the case is withdrawn former Our ing in lieu thereof. substituted Steffens, against respondent, peti- By filed bill of review Pollard, petitioner, September, 1956, the stepmother,
tioner’s July, probate sought court rendered judgment set aside ground of law. of mutual mistake sought, appeal to the district having the relief court court, denied petitioner. The Court rendered in favor of judgment for Mrs. Appeals and rendered Stef- reversed of Civil fens. 319 447. respect to *3 petitioner asserts is with of law that The mistake agreement by Mrs. validity survivorship executed Stef- of
the fens ing husband, petitioner, pertain- of and the father her deceased building and loan and Federal Credit Union to certain shares community The deposits Building purchased their funds. that were agreement provided Loan that: & agreed hereby shares subscribed “It is understood and the association, as as all accumulations and the well for thereon, issued account, joint for to be association our are held law, right survivorship, joint as at common tenants with the of as common; represented by funds said and not as tenants in may party after either hereto or shares be withdrawn before either, Texas, subject and of death to the laws of State the to the association, by-laws party to and either is authorized the as may security pledge the same collateral loan either thereon.” draw dividends
The Credit Union similar form. Federal omitting any Appeals, discussion The Court Civil petitioner review, directly passed maintain the bill agreement holding vesting upon survivorship it to be valid and building title to all of the and loan shares Mrs. The Steffens. Smith, recent court considered our decision in Ricks v. controlling. 2d to be granted petitioner’s application for We writ of error with the upon question passing resolving view the conflict be- holding decision of the Dallas court and its tween this former upon Reed, Reed but further consideration we conceding that even are of decision in Reed v. here, correct, the mis- petitioner nevertheless Reed is take, contends grant Therefore, any, equity which will relief. if is not one for well-recognized judicial appellate procedure reach we do not under question under the above-men- or decide the as whether not Steffens, agreement, survivorship as a matter tioned of law community only her half of the was entitled to or to and loan shares. by petitioner approving an “order attacked is administratrix, ordering report temporary
final distribution of terminating estate, temporary administration.” order This duty statutory enjoined was entered in accordance with Stats, court Article Vernon’s Ann. Texas (now Code)1 provides Section 408 of the Probate which that: “Upon estate, a settlement anof if there be of the estate remaining administrator, in the hands of the executor and and the heirs, legatees estate, assignee, devisees or or their or either them, present court, represented county judge shall partition among order a them.” and distribution estate be made face, sought On its the order set does aside purport agreed judgment. to be an or consent It recited therein that: appearing further to the court ad-
“[I]t from evidence *4 duced chargeable that all debts owed and the the to estate of herein, discharged decedent fully paid have been and Tem- the porary necessity Administratrix that there is no further for ad- ministration surviving herein and that the heirs of the decedent entitled to receive the remainder of the estate herein Mrs. Steffens, Edith T. Harry Pollard, the widow and S. the son of * * * Steffens, C. Louis remaining deceased and that the in estate Temporary the hands of the subject Administratrix parti- tion and distribution in accordance with the laws of descent and Texas, distribution of express as modified the written direc- * * tions of *. said decedent Ordered, Adjudged “It Decreed, is therefore and the Court Steffens, surviving widow, Mrs. Edith T. the Harry and S. 408(b) 1.—Section of the 1955 Probate Code reads as follows: Remaining Property. Upon estate, “Distribution final settlement if remaining personal there be of such estate in representative, the hands delivered, ward, court shall order that it be in case of a to such ward or other person legally thereto; decedent, partition entitled case of a dis- and among persons tribution be made entitled to receive such estate.” Steffens, deceased, surviving and Pollard, of C. Louis son following property of said hereby with title to each is vested remaining Temporary Administratrix: in the hands of the
estate “To Mrs. Edith T. Steffens:
“* * * Savings Bonds, payable to E. All United States Series Steffens, payable to Mrs. T. and Louis or Mrs. Edith C. Steffens beneficiary; T. Edith Steffens Building Loan “All and Shares: Steffens, with Deposit Louis name C.
“The TEC CO amount of T. survivorship to Mrs. Edith Steffens * * * . $1102.24 Harry “To Pollard: S. Pollard).” description property
(Here awarded follows him practicing attorney. relations between Petitioner is Upon pleasant. his father’s stepmother normal and and his were her in intestate, petitioner with and assisted counseled death papers settling prepared the inci- up of the estate. He the affairs temporary and her appointment as administratrix dent to her purporting report up decree He drew final and account. ordering distribution to Steffens vest title deposits Union shares and the Federal Credit loan It likewise dis- entered court. and caused to be remaining estate, specifically property all of the tributed mentioning setting other items of aside Mrs. Steffens 17 property petitioner-son. to the That awarded and 16 items drawing Petitioner, up and to him was of consenting value. before substantial decree, entry deci- was familiar with the Kountz, ref., sions in the cases of and wr. Chandler S.W. says Deaton, 2d 489. He that it was not Shroff years mis- until three later 1956 that he became aware of this filing take, shortly bill, the Dallas handed before when court Reed, supra, declining its in Reed down decision to follow Shroff *5 agreement holding survivorship we v. Deaton and that such a as community operate to all does not vest title to of the have here Therefore, interest in the survivor. he contends that the decree aside, corrected, that should be set the mistake and he be awarded community his interest in these shares. father’s following facts, among others, by were found trial The awarded to and were That loan shares court: mistake; has that Mrs. Steffens as a of a mutual Steffen result entry probate judgment injury by the mistaken suffered and has intact; petitioner was not mis- property of the by or through negligence limitation and relief is not barred taken laches; by judgment and that that the was entered parties was the estate be distributed accord- intention of the ing laws descent and distribution. Judgments, Ed., 5th Vol. rule as in Freeman on stated 1246, thus:
section misconduct or “But the absence some element fraud party, interpose equity on the of the adverse will never ground ignor- enjoin vacate or on the of mistake or law, opinions ance of or nor of a law because mistake of cause suggestions judge before whom the cause was tried.” C.J.S., Similarly, Judgments, in 49 section and the same effect: ground equity party pre-
“It is not for relief in making law, vented from his at a mistake of not defense law party, induced the fraud or misconduct of the other or mistaking misunderstanding rights prem- reason of or his in the ises.” In this suggest case does fraud was practiced upon him or that he relied respondent, that he superior knowledge
was misled her or that she had as to the law. disagree, think, foregoing
Petitioner does not we rule, with the says but he that he was mistaken with to his reference own ante existing legal rights distinguished private cedent from generally, mistake of law and that therein exception lies an Jurisprudence, Pomeroy’s the rule. He relies on the statement Equity (5th Ed.), 849a, p. 311, l. section as follows: Vo person ignorant respect “Wherever or mistaken with existing private legal rights, own antecedent and interests, estates, liabilities, duties, relations, or other either of property or status, personal contract or and enters into some transaction the legal scope operation correctly apprehends which he understands, purpose affecting for the such rights, assumed in- terests, relations, carrying out such assumed duties and
600
affirmative,
relief,
liabilities,
grant
equity will
its
defensive
analogous to,
treating
if
a mis-
not identical with
the mistake as
* * *”
of fact.
take
the
the
petitioner,
an examination of
decisions
from
The
statutes,
from
claim
that he was barred
must
determined
have
shares.
effect of
ownership in
loan
the
of
contention
satisfying
himself as to the status
now is that after
agreed
probate
impliedly
the condi-
the law he
to the
decree
subsequent
appellate
the
courts deter-
if a
decision of
tion that
mined
pro-
otherwise he would not be bound
law to be
subject
are of the
and it would be
to avoidance. We
bate decree
position
is untenable.
that
interpretation
applicable
change
or view of the
judicial
A
a
a bill
judgment, does not furnish
basis for
after a final
law
relief,
equity
in
equitable
nor
can
review and
bestowal
in reliance
the law
a contract consummated
to set aside
voked
account of a
con
a court decision on
as announced
subseauent
ruling.
72,
3, Pomeroy’s
Jur., Equity,
trary
Am.
section
Vol.
19
Welty,
850a; Kenyon
Ed.,
Jurisprudence.
v.
Equity
section
5th
637,
312,
137;
Krueger,
81
Dec.
Nilsson v.
69 S.D.
Am.
Cal.
Superior
783;
Court,
Sontag
v.
2d
Chain Stores
Cal.
9 N.W.
2d
92,
letter ing shares, of cer- but insisted that title to one-half loan payable “E” Louis tain co-owner series bonds to C. United States vested in him under statutes Steffens or Steffens holdings In that letter discusses the descent and distribution. Kountz, Mitchell, and Edds Shroff Deaton Chandler 307, 823, Fowler, 199 2d as Decker v. well as 254, A.L.R. certain 92 Pac. and refers to Wash. United regulations. Treasury explained States He that case, savings the court held shares in and loan Shroff survivorship agreement association under similar the one here, irrespective pro- we have were owned survivor Stat., visions of Art. Ann. Civ. now Vernon’s section Code, saying: V.A.T.S. Petitioner concluded his Probate letter “In instance in which it that each desired the entire owner- explicit joint you survivor, ship pro- funds be vested accomplish purpose. Specifically, has vision made to been deposit providing you had had written TECCO the Building right survivorship; and Loan Association savings specifically provided you of sur- had the shares savings vivorship; ($1,000.00) bonds one dollars thousand *7 you. provided death specifically payable on to that the were bonds “Therefore, that of the my I in conclusion remain confirmed Savings (2400.00) two thousand hundred dollars of War four Steffens, payable Bonds Mrs. Edith T. Louis C. Steffens belongs you title to one-half and title the other one-half vests according to the Texas laws of descent and distribution.” says testimony he
Petitioner in his that at all times believed building belonged that the and loan shares to Mrs. Steffens agreement survivorship virtue the execution of the and that the cases Shroff Deaton and v. Kountz Chandler were cited only respect him with ownership United States bonds and up ownership were “not looked” in the matter of the building implication Only by loan at shares all. do either any bearing these cases ownership have on the of United States bonds. The entirely Shroff question case deals with the we have here, namely, savings ownership and loan shares under agreement, similar survivorship while Edds Mitchell and Decker were ownership Fowler concerned with the of United States co- owner bonds. petitioner, think it We cannot be said that the thorough knowledge understanding holding of the in the case, Shroff disregard arriving could have or did init at the con- clusion that Mrs. Steffens was entitled declared owner building of only of the shares, and loan and that he considered forming opinion, his that the United States bonds were owned one-half him and one-half Mrs. Steffens. The follow- ing testimony given by petitioner on cross-examination. “Q. You, course, were familiar with the case of—those cases, two the Shroff case and the Kountz case— Yes,
“A. sir. “Q. You you cited those in the letter wrote to me and were rulings, familiar with the you were not? “A. I mentioned them in the letter I wrote as well. to her “Q. you And controlling time, felt those cases were at that you did not?
“A. Those were cases cited relation to the matter bonds; up the matter of they not cited or looked were
OR at all.” and loan stock rely Shroff did not Petitioner nowhere testifies drawing owned no build- case in the conclusion that he ing think we and from all of evidence and loan shares legal opinion contrary for his He had no other basis shown. survivorship and enforceable. was valid litigated course, if, in a concedes: “Of Petitioner in brief decision, at, case, judgment are arrived a decision and change case, wrong, subsequent and no the law of becomes judgment.” If affect that in decisions of the court can is, conclusion, question then the we think he is correct against judgment has him a consent is foreclosed because *8 by binding degree rendered finality force as does one same of Harding adversary proceeding. an the court at conclusion of Co., App.). (Comm. In L. Pearson & 48 2d 964 v. W. recently S.W. 334, Wagner Warnasch, decided case v. of 890, by judgment is contractual 2d we said: “A consent construed, a than in its nature and it is more should be so but agree parties. ex mere contract pressed with the views between We dissenting particular opinion.”2 question on in the this Jur., Judgments, quoted approval further with from 31 Am. We “ judgment a as ‘The fact that is rendered section follows: gives greater consent it neither nor effect than less force or litigation, protracted would had it rendered after ex have been cept operates that the consent error and to to extent excuses ” controversy parties.’ on end all between the Freeman See also Judgments, 3,Vol. Section 1350. Ramsey McKamey,
The case
137 Texas
v.
judgment
was
bill
partition
review to set aside
theretofore
rendered in a
suit.
in that case
one
The mistake
acreage
simple fact, namely,
as
the extent of the
that was
to
partitioned.
elementary
partition
to be
It
is
operate
conveyance
suit does not
as a
or
transfer of title.
partition
possession
is of the
and not of the title.
decision
This
granted
represent
seems to
a narrow doctrine. The relief
in that
generally
may
equitable
suit
an
be based on
to contribution
accruing
part
as a result of the failure
to some
of title
Armstrong,
property partition,
Supl.
or
Ross v.
arising
implied warranty
statutory provision
virtue of the
Wagner,
2.—Warnasch
applicable partition property. decision should real That to to here. extended control in the situation be Pomeroy, Reverting relied to the statement of the rule by petitioner, clearly applicable rela- is to contractual rule Restitution, section To the same is Restatement tions. effect person another “A entitled restitution from follows: is gratuitously whom thereto a mistake law and induced given things has or surrendered a claim if land other or has misrepresentation, (a) was material mistake caused fraud or (b) identity relationship donee was or was as to or of the or * * mistake, granting this some other But even basic may generally applied doctrine cases we think bill review it record. disclosed in available under facts It is admitted in on the this case that there was misleading fraud, deceit, overreaching, Mrs. Steffens no no any conduct. Pollard was not mistaken sense as true existing legal rights” private “per- “antecedent or sonal as to his property. status.” He the full knew extent of Mr. Steffens’ He knew exact amount of He and loan shares. knew purchased community the shares were with funds. knew He that he community property. was entitled to one-half He wording agreement signed knew the exact Mr. and Mrs. purchased. acquainted Steffens when the shares were He was the decisions in He Chandler Kountz and Shroff Deaton. knew that he was not entitled interest in the shares if *9 agreement right legally tenancy joint was effective create a a with survivorship. of He knew that if the so was not effective he was to a entitled one-half interest in the shares. weight Petitioner cites and attaches v. considerable to Mortiz
Horsman,
627,
868,
Mich.
305
9 N.W. 2d
604 regardless by Now, Michi parties. of this entertained take both granting gan in the modern trend decision what is said to be mistake fact as asserted relief whether the be one of law or writers,3 petitioner cannot in some and law other court decisions equitable circumstances principles relief under the voke us. before in case. Pollard comparable made No mistake of law was tenancy mistakenly joint that a with
did not survivorship believe It was set- written instrument. could be created familiar, Kountz, was tled in with which he Chandler v. all, believing he at it was in could be. If mistake made signing particular agreement Mrs. him Mr. and before separate community property into had transmuted funds Steifens in under the laws descent Steifens which heir final have interest. There had been no and distribution would question in this state as he knew or should determination of that reading in v. from a Shroff Deaton have known pure question was dicta in which which the discussion litigated applied case no for. He should have writ error was having question join at the time rather than en- against deciding litigate tered him to become final before byit bill of review. Ramsey by petitioner other than
The Texas decisions relied on setting- McKamey judgments, but are aside v. not concerned sought only overpayment from caused mistake deal with relief Empire arising fact of these matters of contract. Some 138, State, 376, v. 21 2d affirmed 121 Texas Gas Fuel Co. S.W. & 533, 265; Robison, 516, Texas 8 S.W. 47 S.W. 2d 2d v. 117 Greene dism.; Algelt 655; Parmer, Lusk v. 114 2d er. S.W. ig- Gerbic, ref., granting 233, er. relief on account of 149 S.W. legal concerning misapprehension of a trans- norance effect rights induced, legal procured, aided or accom- action where Ferguson panied by inequitable parties. conduct of other Mountz, dism., Pomeroy quoted rule is er. where the S.W. granted relief induced but from mistake is because it was Beaumont, City party. counsel for the other 46, Moore v. 292; Miller, 448; Wardlow v. S.W. West, App. 475, where relief West 9 Texas Civ. granted on account of mistake of law which was due *10 defendant; Allison, Ramey inequitable conduct of the mistake; inducing 697, 64 Texas fraud where there was also Peter, 493, 846, 890; First 3.—Peter Nat’l. 343 Ill. 175 N.E. 75 A.L.R. Peterson v. Bank, 1185; 162 Minn. 42 9 Law 309. 203 N.W. A.L.R. Review
605 Co-Op al Mail Order Ins. v. Dixie National Fire Co. et Columbian App.). House, (Comm. S.W. applicable of is stated United States
The rule to bills review 61, L. (1878) ed. v. Throckmorton 98 U.S. 94: firmly “There are maxims of the law more established or no justice of more than the two which value in the administration of designed litigation prevent repeated par- same between the regard namely: subject controvrsy, ties in Inter- to the same ipublicae, litium, pro est re sit una ut finis and Nemo bis vexari ** * et eadam causa. general rule, exception “But there is admitted to this thing cases party where reason of some done the successful suit, was, fact, adversary to a there trial decision of the ** issue in the case. party legal proceeding Our is conclusion that a to a should permitted not judicial judgment, to set aside in the absence fraud, possession when he was in of all vital facts acquainted entry with the judg law as time ment, permitted against only its rendition him because legal misconstrued a rights written instrument that controlled his or misapprehended operative legal rights its effect on his forego litigate chose to question posed thereby. the law judgment Appeals Court Civil affirmed. Steakley sitting.
Associate Justice Opinion February 1, delivered 1961.
Rehearing overruled March 1961.
Mr. Norvell, concurring. Justice I think Appeals While Court Civil placed upon proper basis, correct and I feel am that I bound by the Hilley Hilley, Court’s decision in 565, despite my However, fully dissent thereto. I concur opinion prepared by in the Mr. join Justice Culver and in the overruling rehearing. action for motion Opinion February 1,1961. delivered
Rehearing 8,1961. overruled March