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(248 S.W.) A. W. Surtees and his wife, Dora A Surtees, (cerned, is to be considered like iron, coal, lead, knew that the land was the separate property or other solid mineral substances.” of the first wife of A. W. Surtees, Ethel Surtees, who was dead, and that the title to

See the rule laid down in the law of Oil the land had passed under the statute to her and Gas (3d Ed.), volume 1, by Thornton, $$

298, 299: children, who were the appellees, subject to a life estate in one-third use of the land by “The rule concerning the right of a life tenher surviving husband, A. W. Surtees. The apt to open new mines or work old ones aplease to appellants cast a cloud upon appel-plies to oil or gas wells upon the life estate. lees' title, authorizing a suit to remove same Thus, where oil wells had been sunk, in the

testator's life, under a lease, and one was being and to cancel the lease.

[1] Since the splendid and able opinion sunk when he died, it was held that the life tenwritten by the late David Bryant of the then lease. But if no well has been sunk in the

ant was entitled to the royalties under the United States Circuit Court of Appeals in landowner's lifetime, his life tenant cannot sink Higgins Oil & Fuel Co. v. Snow, 113 Fed. an oil well, nor lease the land; and if he does 433, 51 C. C. A. 267, the rule seems establish- lease it, he cannot recover the rent under the ed firmly that a life tenant cannot bore for lease. The life tenant cannot justify his conand take minerals out of the remaindermen's duct in boring oil or gas wells by claiming that lands to the injury of the remaindermen, and if he did not take out the oil or gas, the neighis clearly announcing a doctrine that is boring landowners will drain the land; for the universally followed in this state and other the owner of land, after leasing it for mining of

oil or gas belongs to the remainderman. Where tribunals. In the case of Lone Acre Oil Co. v. oil and gas, conveyed it to his children, reservSwayne, 78 S. W. 383, the Court of Civil Ap- ing to himself a life estate in it, it was held peals for the First District, sitting at Galves- that he was entitled to the royalties under the ton, followed that case with approval. It | lease. And where a lessee in an oil lease was carried to the Supreme Court on a writ from a life tenant continues to take oil after of error and affirmed, opinion by the late the death of the life tenant, he is liable to the Chief Justice Gaines. Swayne v. Lone Acre remainderman. Oil Co., 98 Tex. 605, 86 S. W. 740, 69 L. R, A.

"A life tenant may not open new mines upon 986, 8 Ann. Cas. 1117.

the life estate; for him to do so is waste, even In discussing the statute of this state in though, as in case of oil, it be necessary to se

cure it, where adjoining landowners have openregard to the rule of descent and distribution, ed wells on their own lands, and the effect is providing, “The surviving husband or wife to draw the oil from the land in which the life shall also be entitled to an estate for life, estate exists, "The fact that possibly, by opin one third of the land of the intestate, with erations upon neighboring lands, all the gas will remainder to the child or children of the in- be taken before the remainderman came into testate and their descendants" (Vernon's possession, cannot affect the right of the reSayles' Ann. Civ. St. 1914, art. 2462), Judge mainderman to prevent the taking by the lessee Gaines propounded the question:

or grantee of the life tenant. That such lessee

or grantee will not derive any benefit from a "What, under this provision, are the rights grant or lease wbich the life tenant had no of the life tenant in the oil underlying the land, right to make cannot be regarded as a hardwhen no attempt had been made to extract it ship to any person.' If a stranger dig and at the time of the descent cast?"

carry away coal from land in possession of a

life tenant, upon which no mine has been openJudge Gaines then proceeds to answer the ed, the remainderman must bring the action to

recover damages." question, after discussing the common-law doctrine and dower estates, dividing the es The same holding has been made in all the tates into two classes of life estates: '"First, I states, with practical unanimity. See two recontentional life estates, or those which are cent Kentucky cases: Crain v. West, 191 created by contract; and, second, those Ky. 1, 229 S. W. 51, and Meredith v. Mere which came into existence by operation of dith, 193 Ky. 192, 235 S. W. 757. lay"_proceeds to say:

[2] Appellants acquired no rights whatever "We conclude, therefore, that it was the in- by virtue of the lease to mine and operate tention of the Legislature in enacting the stat- for oil and gas only on the land of the reute in question to make the estate therein pro- mainderman, and to lay pipe lines and build vided for subject to impeachment for waste. tanks, towers, stations, and structures on It is too well settled to require a citation of said land, to produce, save, and take care authority that, while it is not waste for a ten- of said products on land never before devoted ant by the curtesy or a tenant in dower to to producing oil. A. W. Surtees, as shown, work an open mine, it is waste to open a new could not himself open mines on this land mine. In other words, the tenant of a life es

to the detriment of the remaindermen, the tate, punishable for waste, has no right to remove the minerals, when the land had not been appellees herein. And the existence of this devoted to mining purposes before the creation lease was a menace, a cloud upon appellees of his estate. Oil before its extraction is a title. Minerals being real estate, a prima famineral

, and is a part of the land, and, in so cie case for relief under the common source far as the question under discussion is con- of title was shown. Word v. Houston Oil

248 S.W.-28

Co. (Tex. Civ. App.) 144 S. W. 334. Besides, ! The appellant testified concerning the conunder all of the authorities, appellees would 1.tract as follows: be entitled to equitable relief by injunction

"John W. O'Neal during the summer of 1920 or otherwise to preserve their rights.

was manager of the defendant's oil mill and If such were not the law, the life tenant business at Clarksville. On the last of July might be permitted to make such leases, and or August 1, 1920, I saw Mr. O'Neal in the operation of new mines would in the Clarksville in regard to a position as night course of time enable the life tenant to take superintendent of the oil mill. He made me out all the gas and oil in the land, and there- an offer of $150 per month, to begin work by render it valueless, for that purpose. He when I got ready (that is, moved), and to conis not himself allowed to so impeach the life tinue for 12 months from the time that I estate; then it follows he is not empowered went back to New Boston, my home.

went to work. This occurred on Monday. I

The to pass that right to another.

following Thursday (August 5th) I called Mr. We have examined all the assignments, O'Neal over the telephone and told him that I and, finding them without merit, they are accepted his proposition and would be ready to overruled, and the judgment of the trial go to work as soon as I could get moved. court is affirmed.

My time was to begin when I went to work, and was to end 12 months from the time that I went to work. Thereafter, on August 23, 1920, I reported for duty and went to work under my

contract.” REASE v. CLARKSVILLE COTTON OIL CO. (No. 2692.)

Cross-examination. (Court of Civil Appeals of Texas. Texarkana.

"I made only one contract with Mr. O'Neal. Feb. 23, 1923. Rehearing Denied March

It was made about three weeks before I went 1, 1923.)

to work. He made me a proposition to work

for $150 a month as night superintendent of Frauds, statute of Ow53—A verbal contract of the Clarksville Oil Mill. The following Thurs

employment for one year to begin in the day I telephoned him that I accepted his propfuture held not to be performed within a osition to work for $150 per month for one year from the making of it as required by year, my time to begin as soon as I could arthe statute.

range to go to work, and that it was to conA verbal contract of employment for a

tinue for 12 months from the date I went to year, to begin when the party employed goes

work. That was the only contract I ever to work thereunder, several weeks after the made. It was not varied or altered at any contract is made, is not to be performed with time, and I am relying solely on that contract in "one year from the making of it," as re

for recovery in this case." quired by Rev. St. art. 3965, and is not enforceable.

There is no dispute about the contract, nor

about the breach of it. The plaintiff in error Error from Red River County Court; R. worked under the contract, it appears, from J. Williams, Judge.

August 23, 1920, to May 1, 1921. On May 1,

1921, the oil company, desirous of reducing Action by Alfred Rease against the Clarks

expenses, discharged some of its employees, ville Cotton Oil Company. There was a judg- including the plaintiff in error. ment for defendant, and plaintiff brings error. Affirmed.

Chambers & Dodd, of Clarksville, for plain

tiff in error. The suit is by the plaintiff in error for

A. L. Robbins, of Clarksville, for defendant damages for breach of a parol contract of

in error. employment. The defense is that the contract was unenforceable under the statute of

LEVY, J. (after stating the facts as above). frauds because it was an agreement not ca- The court did not err, we conclude, in expable of complete execution within a year cluding the evidence concerning the parol from the making of it. The court sustained the agreement and in directing a verdict for the motion of the defendant in error to strike defendant in error. The statute of frauds out the evidence testitied to pertaining to the is for the purpose of preventing the recepcontract, upon the ground that the statute of tion of testimony which would otherwise be frauds was applicable thereto, and then per competent, and the fifth clause of article emptorily instructed the jury as follows:

3965, Revised Statutes, is applicable to the "You are instructed that, as a matter of law, parol contract pleaded and testified to by the the plaintiff is not entitled to recover upon plaintiff in error. “Any agreement,” accordthe evidence of a verbal contract alleged to ing to the fifth clause of the above article,

been made on August 1, 192 for the reason that the contract as testified to is con- space of one year from the making of it.” is

"which is not to be performed within the trary to the statute of frauds."

unenforceable if it be not reduced to writing Error is predicated upon the ruling of the by the parties thereto. The language of the court.

clause has the effect of expressly "limiting,”

( 248 S.W.) as stated in Bateman v. Maddox, 86 Tex.., 2. Bonds 32-if bond contains substantial 546, 26 S. W. 51, "both the time of commence requirements of statute, it is valid. ment and continuance" of the agreement such Except where the statute declares all bonds as it prohibits the enforcement of. The "one void which do not strictly comply with the reFear” begins and is to be computed "fromquirements therein prescribed, a bond need not the making of it,” the agreement. Conse- be in the exact words of the statute, provided quently, such a contract as the one here in it includes substantially all that the statute re

quires. suit is within the terms of the statute. 2 Elliott on Contracts, $ 1179; Moody v. Jones 3. Depositaries 7-Stipulation in bond, pro(Ter. Cir. App.) 37 S. W. 379; Publishing Co. viding for interest on average daily balances v. Moore, 46 Tex. Civ. App. 259, 101 S. W. on school district funds, held not to render 867. According to the evidence, on Thursday,

bond more burdensome than statute contemAugust 5, 1920, the plaintiff in error acceded

plated. to the proposition of the manager of the oil

While Vernon's Sayles' Ann. Civ. St. 1914, company. In legal effect the contract on

art. 2771, as amended by Act March 20, 1917 that date became instantly binding on the (Gen. Laws 1917, c. 160 [Vernon's Ann. Civ. parties, and neither party could subsequently bank selected as treasurer of school district

St. Supp. 1918, art. 2771]), provides that a recede from the contract without the con- funds shall give a bond "to safely keep and sent of the other. This contract was, by its faithfully disburse same," and to "pay over to terms, for a year's service; performance to his successor all balances remaining in his begin at a future time appearing in the facts hands," a provision in a bond requiring the to be on August 23, 1920. The contract, as bank to "faithfully keep said funds and acseen, by its terms is not capable of entire and count for them," with interest on the average complete execution within a year from the daily balances, held not to render such bond

more onerous than authorized by the statute, date of “the making of it,” because the period which declares that the person making the best of service agreed upon was to extend one

bid of interest on the average daily balances year from the time “performance commenc- shall be chosen treasurer; a stipulation that ed.” “Performance commenced" on August the bank pay interest being no more than a 23, 1920. Therefore there would not be an particular undertaking covered by the stipula-entire and complete execution of the contract, tion that it would "faithfully discharge the if its terms were followed, before and until treasurer's duties." August 23, 1921, showing an excess of 18 days abore one year from the date of the making 4. Depositaries @ma 7-What must and must not of the contract on August 5, 1920. The ex

be read in statutory bond. cess of 18 days from August 5th to August

Where a bond is given under the authority 23d was just as efficient as a longer period of a statute in force when it is executed, it will

be presumed, in the absence of a contrary inrender the agreement void under the stat-tention, that the intention of the parties was ute. Indeed, an excess of the period of “one to execute a bond as required by the statute, year," however short, is sufficient to satisfy which becomes a part of the bond as if inthe terms of the statute and make such corporated in it; whatever is included in the agreement unenforceable.

bond and not required by statute must be read Affirmed.

out of it and whatever is not expressed in the boud, but required by statute, must be inserted in the bond.

5. Depositaries Om7-That statutory bond ex. AMERICAN SURETY CO. OF NEW YORK

ecuted by bank acting as treasurer of school

district funds was not in exact words of stat. V. TARBUTTON. (No. 2677.)

ute held not to invalidate it. (Court of Civil Appeals of Texas. Texarkana. That the statutory bond executed by a Feb. 28, 1923. Rehearing Denied bank as treasurer of school district funds and March 8, 1923.)

containing a provision that the bank should

account “to the school board of the district and 1. Depositaries m7-Recital in bond that bank to the state superintendent of public instrucchosen depository for “scholastic year" held tion, according to law,” did not in terms renot part of conditional bond limiting term of quire it to pay over balances remaining in its appointment.

hands to its successors, as provided in VerThe recital in a statutory bond executed by non's Sayles' Ann. Civ. St. 1914, art. 2771, as a bank, as depository of school district funds, amended by Act March 20, 1917 (Gen. Laws that the bank was chosen depository for the 1917, c. 160 [Vernon's Ann. Civ. St. Supp. "scholastic year beginning September 1, 1920, 1918, art. 2771]), held not

to affect its validity and ending August 31, 1921," held not a part of as a statutory bond, the provision that the bank the condition of the bond operating to limit the account to the school board and state superterms of appointment of the bank as depository intendent to be treated as surplusage if such in a way not authorized by Vernon's Sayles' accounting is not required by law, and the reAnn. Civ. St. 1914, art. 2771, as amended by Act quirement of the law that it should pay over March 20, 1917 (Gen. Laws' 1917, c. 160 (Ver- balances in its hands to its successors to be Don's Aon. Civ. St. Supp. 1918, art. 2771]). read into the bond.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Depositaries w 14-What evidence held suf-, dent of the board of trustees of said district,

ficient to show breach of statutory bond ex. and his successors in office. It was otherecuted by bank as treasurer of school dis- wise as follows: trict funds. Breach of a statutory bond executed by a that whereas the above-bounded Guaranty State

"The condition of the above obligation is such bank as treasurer of school district funds and Bank of Troup, Tex., offered the best bid of by a surety company held sufficiently shown by evidence that, after the bank ceased to do busi. interest on average daily balances of school ness and closed its doors, the board of the trus- funds, and was on August 31, 1920, chosen by tees of the school district drew on it for the board of trustees as depository of the Troup amount on deposit, that the draft was not paid, independent school district for the scholastic and that no part of the deposit was ever paid. year beginning September 1, 1920, and ending

August 31, 1921: 7. Depositaries Om 13-Undertaking of surety "Now, therefore, if the said Guaranty State

on bond executed by bank as depository of Bank of Troup, Tex., shall faithfully discharge school district funds held to continue until its duties and pay the said funds received by it bank's successor qualified and selected. upon draft of the president, drawn upon order,

Under Vernon's Sayles' Ann. Civ. St. 1914, duly entered by the board of trustees, and shali art. 2771, as amended by Act March 20, 1917 faithfully keep said funds and account for them, (Gen. Laws 1917, c. 160 (Vernon's Ann. Civ. together with the interest thereon, at the rate St. Supp. 1918, art. 2771]), a bank selected as of five per cent. per annum, calculated on averdepository of school district funds held required age daily balances, to the school board of said to serve as such until its successor is "duly district and to the state superintendent of pubselected and qualified," and hence, where a lic instruction according to law, tben this obbank, after executing the statutory bond, was ligation shall be void, but otherwise it shall rechosen depository "for the scholastic year be- main in full force and effect.” ginning September 1, 1920, and ending August 31, 1921," and had been selected as its own

At the end of the scholastic year mentionsuccessor on August 31, 1921, but not qualify- ed in the bond, to wit, August 31, 1921, the ing as such by giving another bond, it was, school district had $5,489.85 on deposit with by the terms of the statute, at the time depos- said bank as treasurer. On the day last its after August 31, 1921, were made, serving mentioned the bank was reappointed treasuras depository under its appointment on Sep- er, but did not then or thereafter make a tember 1, 1920, and the undertaking of the bond as such. October 21, 1921, the bank was surety on the bank's bond continued until the closed by order of the Commissioner of Inbank's successor was selected and qualified, and as such the surety was liable for the

surance and Banking, who took charge of amount deposited after August 31, 1921. same for the purpose of winding up its af

fairs as provided by law. At that time, to 8. Depositaries Car 13–Surety on bank's bond wit, October 21, 1921, the school district had

held not relieved from paying interest after $7,559.15 on deposit with the bank as treasurbank closed its doors.

At some time not stated in the record, A surety on a statutory bond executed by a bank under Vernon's Sayles' Ann. Civ. st. but after said October 21, 1921, the board of 1914, art. 2771, as amended by Act March 20, trustees of the district "drew a draft or 1917 (Gen. Laws 1917, c. 160 [Vernon's Ann. voucher” on the bank for said $7,559.15, Civ. St. Supp. 1918, art. 2771]), as depository which was not paid. This suit was by said of school district funds, who undertook that district and appellee as the president of said the bank would pay interest on deposits, such board of trustees against the bank as the surety held not released from paying interest principal and appellant as the surety on the from the time the bank was ordered to close its bond referred to, and was to recover said doors by the Commissioner of Insurance and $7,559,15 and interest thereon. The trial Banking.

was to the court without a jury, and reAppeal from District Court, Smith County : against the bank and appellant jointly for

sulted in a judgment in appellee's favor J. R. Warren, Judge.

$7.607.05, and against appellant alone for Action by A. B. Tarbutton, President of the further sum of $300 as the interest at the Board of Trustees of the Troup Inde- 5 per cent. per annum on said $7,607.05 from pendent School District, against the Ameri- October 20, 1921, to June 29, 1922, the date of can Surety Company of New York and an- said judgment. The appeal is by the surety other. Judgment for plaintiff, and defend

company alone. ant named appeals. Affirmed.

T. N. Jones, of Tyler, and Fiset & Shelley, The Troup Guaranty State Bank was duly of Austin, for appellant. selected as treasurer of the Troup independ Simpson, Lasseter & Simpson, of Tyler, for ent school district for the scholastic year appellee. beginning September 1, 1920, and ending August 31, 1921, and on August 31, 1920, WILLSON, C. J. (after stating the facts made a bond (which was duly approved) as as above). The contentions presented in apsuch treasurer, with appellant (a corpora- pellant's brief are: (1) That the obligation tion) as surety. The bond was for $35,000 sued on was not valid as a statutory bond and was payable to appellee, then the presi- / because it was not conditioned as required


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(248 S.W.) by the statute; and, therefore, that appel- 1 tially all that the statute requires, that is such lant's liability was determinable with ref- obligations as are imposed by the statute, and erence alone to rules applicable to common allows every defense given by law, as where law bonds. (2) That it did not appear from it is more specific than the statute requires, the testimony that there had been a breach 24; and see 4 R. C. L. 54; Johnson v. Erskine,

but imposes no additional obligation." 9 C. J. of the condition of the bond. (3) That appel- 19 Tex. 1; Ward v. Hubbard, 62 Tex. 559; iant was not in any event liable for money King v. Frazer, 2 Willson, Civ. Cas. Ct. App. deposited with the bank after August 31, $ 788; Bank v. Parrish (Tex. Civ. App.) 207 1921, nor for interest which accrued after S. W. 939; State v. Harper, 99 Tex. 19, 86 October 21, 1921, the date when the banks. W. 920. was closed by order of the Commissioner of Insurance and Banking.

We think the bond is within the rule stat[1] The first one of the contentions is pred-ed, unless it should be said that the provi. icated upon the view that the condition of sion requiring the bank to account for inthe bond was materially different from the terest on average daily balances rendered it condition prescribed by the statute applica- more onerous than was authorized by the ble, to wit, article 2771, Vernon's Statutes, statute; and in that event that it would be as amended by Act March 30, 1917, Gen- invalid in that respect only, and would be eral Laws, c. 160 (Vernon's Ann. Civ. St. enforceable in the respects it conformed to Supp. 1918, art. 2771). The statute referred the requirement of the statute, within a rule to required the bank, when it was selected stated in 9 C. J. 25, as follows: as treasurer of the school district; to give a "Where a bond contains the conditions prebond "conditioned for the faithful discharge scribed by the statute, and also contains condiof the treasurer's duties and the payment of tions in excess of those required, if the exthe funds received by him upon the draft of cess can be separated from the authorized por. the president of the school board drawn upon rejected as surplusage and the rest of the

tion without destroying the latter it may be order duly entered of the board of trustees. bond held valid, in the absence of a statutory Said bond shall be further conditioned that provision expressly or by implication making the treasurer shall safely keep and faith it void, unless the language of the bond prefully disburse all funds coming into his cludes a construction giving it validity." hands as treasurer, and shall faithfully pay over to his successor all balances remaining Did the provision in the bond referred to in his hands."

render it more onerous than was authorized [2, 3] It will be seen on reference to the by the statute? We think not. The statute statement above that the bond contained a declared that "the treasurer of the school recital that the bank had been chosen depos- fund (quoting) shall be that person or corpoitory for “the scholastic year beginning Sep-ration who offers satisfactory bond and the tember 1, 1920, and ending August 31, 1921.” best bid of interest on the average daily balAppellant insists that the recital was a part ances for the privilege of acting as such of the condition of the bond and operated to treasurer," and that the bond given should limit “the term of the appointment” in a way be conditioned, among other things specificalnot authorized by the statute: But plainly, ly mentioned. "for the faithful discharge of He think, the recital was not a part of the the treasurer's duties.” One of the duties condition of the bond and is of no importance of the treasurer was to pay interest it agreed in determining the contention.

The differ- to pay on funds intrusted to it, and the ence between the condition in the bond and stipulation that it should pay interest on the condition prescribed by the statute lies the average daily balances was no more than alone in the fact that that in the statute re

a particular specification, or definition, of quired the treasurer, or depository of such

an undertaking covered in a general way by funds "to safely keep and faithfully dis- the stipulation that it should "faithfully disburse same," and to "faithfully pay over to charge the treasurer's duties.” his successor all balances remaining in his [4, 5] We do not think the fact that the hands," while that in the bond required the bond contained a provision that the bank bank to "faithfully keep said funds and ac should account “to the school board of the count for them," with interest on the aver- district and to the state superintendent of age daily balances, "to the school board of public instruction according to law," and said district and to the state superintendent did not in terms require it to pay over balof public instruction according to law."

ances remaining in its hands to its succesThe rule applicable has been stated as fol

sor affected its validity as a statutory bond. The provision that the bank should account

to the school board and state superintendent "Except where the statute, either expressly should be treated as surplusage if such acor impliedly, declares all bonds void which do het strictly comply with the requirements there counting was not required by law, and the

requirement of the law that it should pay a bond need not be in the exact words of the statute, and the fact that it

over balances in its hands to its successor slightly varies from the form prescribed will should be read into the bond.

The rule is not invalidate it, provided it includes substan- | “that the law” quoting further from g c.


in prescribed,

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