This action was instituted by J. M. Darr, W. S. Barnes, H. A. Borcherding, and E. P. Jones, as trustees, for the fraternal beneficiary organization known as Woodmen of the World, against W. T. Johnson, J. W. Gage, C. L. Blandin, and E. A. Mueller to establish a trust, to remove doud upon the title to certain lands, and to enjoin the foreclosure of an attachment lien thereon.
The cause was submitted to the court upon an agreed statement of facts as provided by article 1949, Vernon's Sayles' Ann.Civ.St. 1914, which is as follows:
"Agreed Case. — The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, and filed with the clerk, upon which judgment shall be rendered as in other cases; and, in such case, the statement so agreed to and signed and certified by the court to be correct, and the judgment rendered thereon, shall constitute the record of the cause."
Judgment was entered as prayed for in favor of plaintiffs for one parcel of the lands involved, from which plaintiff has by appeal brought it here for review, and defendants, below, have filed cross-assignments. All raise the question: Did the court render the proper judgment upon the statement?
First, the writer is of the opinion that the case should be affirmed for the following reason: The parties failed to comply with the provision of this statute requiring the court to certify that the agreed statement is correct, nor is it approved as an agreed statement of facts. It is therefore not sufficient to constitute either. Chickasha Mill Co. v. Crutcher (Tex.Civ.App.) 141 S.W. 355; Scott v. Slaughter, 97 Tex. 244,77 S.W. 950.
Being without an agreed statement and without statement of facts by which to test the correctness of the court's judgment attempted to be appealed from, this court must presume that it is correct. McDowell v. Fowler, 80 Tex. 587, 16 S.W. 431.
The majority are of the opinion that the agreed facts appearing in the record signed by counsel for the respective parties should be considered and the appeal disposed of upon the facts therein shown for the following reasons:
The judgment in this case recites: "All matters of law and of fact, as set out in the agreed case, were heard by the court." The trial court's findings of fact recites that "the facts are found in strict accordance with the agreed case." While the statute requires that the agreed statement should be signed and certified by the court, it has been held that such is not necessary where it otherwise appears from the record that the case was tried upon the agreed facts. State v. Connor,86 Tex. 133, 23 S.W. 1103; Bomar v. West, 87 Tex. 299, 28 S.W. 519.
The recitals in the judgment and findings of fact cure the failure to strictly comply with the statute, especially so since no point
in this respect is made by the appellee and no motion to strike out the agreed facts.
If the document is sufficiently authenticated to require the court to consider the case upon its merits, then the majority are of the opinion that the following is the law of the case:
Agreement:
"J. M. Darr, W. S. Barnes, H. A. Borcherding F. P. Jones, Trustees, v. W. T. Johnson, J. D. Gage, C. L. Blandin and E. A. Mueller. No. 22425. In the above styled and numbered cause it is agreed between the parties that the following are the facts upon which judgment may be rendered herein:
"(1) Tornillo Camp No. 42, Woodmen of the World, is a local unincorporated camp or lodge of a fraternal beneficiary order known as the Woodmen of the World, the supreme camp thereof being located at Omaha, Neb., and said Tornillo Camp No. 42, Woodmen of the World, being located at El Paso, Tex. Its property was held by trustees, and for some years previous to the 24th day of August, 1921, said trustees had held for said organization the following described tracts or parcels of land in the city and county of El Paso, Tex., in fee-simple title absolute:
"The east 16 feet 8 inches of lot 30, all of lot 31 and the west 8 feet 4 inches of lot 32 in block B of Stevens' addition to the city of El Paso, Tex., according to the map of said addition, having a total frontage of 50 feet on West Franklin street.
"Also the north 1/2 of lot 5, all of lot 6, and the south 1/2 of lot 7, in block 253 of Campbell's addition to El Paso, Tex., having a total frontage of 50 feet on North Ochoa street, the latter tract being subject to an incumbrance of approximately $800 for part of the purchase money; and on said 24th day of August, 1921, S. A. Vaughan, W. S. Barnes, and H. A. Borcherding were managers, auditors, and trustees of said Tornillo Camp No. 42, Woodmen of the World, and as such were vested with the title to the said property.
"(2) That on the 24th day of August, 1921, the said managers, as auditors and trustees, joined by E. C. Gessler as consul commander of the said camp, he being the presiding officer thereof, corresponding to president, executed a deed in general warranty form conveying the said property to F. P. Jones, said original being presented with this agreed statement of facts and submitted to the court, said deed being filed for record at El Paso county, Tex., on the 26th day of August, 1921, and recorded in Volume 375, at page 530, of the deed records of El Paso county, Tex.
"(3) That contemporaneously with the execution of the said deed, the said F. P. Jones, grantee therein, executed and delivered to the said managers and trustees an instrument, the original of which is submitted to the court with this agreed statement of facts. This instrument covered the land described in the deed hereinbefore mentioned and was filed for record in the deed records of El Paso county, Tex., on the 24th day of October, 1922, and is recorded in Volume 400 at page 137 of the deed records.
"(4) On the 22d day of June, 1922, the defendants in this suit filed a suit in the Forty-First judicial district court of El Paso county, Tex., No. 22300, against F. P. Jones and others upon individual liability for debts of the said F. P. Jones, being the same person who was grantee in the deed mentioned in paragraph 2, above. And on the same date the plaintiffs in said cause (who are defendants in this cause) caused a writ of attachment to issue out of the Forty-First judicial district court of El Paso county, Tex., and to be levied by the sheriff of El Paso county, Tex., upon the property hereinbefore described, as the property of F. P. Jones, defendant in said cause, he being one of the plaintiffs herein, and thereafter said writ of attachment was recorded in the records of attachment liens in El Paso county, Tex., in volume 2. and at said time, and all times prior thereto, defendants had no notice of the instrument mentioned in paragraph 3, above, executed by F. P. Jones, or of any trust estate therein.
"(5) Thereafter, on the 18th day of December, 1922, in this court, the defendants herein (plaintiffs in cause No. 22300) obtained a judgment against the said F. P. Jones, and one of his codefendants therein, for a large sum of money, and reference may be had to the minutes of this court for a copy of the said judgment in which the attachment lien mentioned, which was levied as hereinbefore described, was foreclosed and an order of sale was directed to be issued out of the office of the clerk of this court for the sale of the said land as under execution to satisfy the said judgment.
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This action was instituted by J. M. Darr, W. S. Barnes, H. A. Borcherding, and E. P. Jones, as trustees, for the fraternal beneficiary organization known as Woodmen of the World, against W. T. Johnson, J. W. Gage, C. L. Blandin, and E. A. Mueller to establish a trust, to remove doud upon the title to certain lands, and to enjoin the foreclosure of an attachment lien thereon.
The cause was submitted to the court upon an agreed statement of facts as provided by article 1949, Vernon's Sayles' Ann.Civ.St. 1914, which is as follows:
"Agreed Case. — The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, and filed with the clerk, upon which judgment shall be rendered as in other cases; and, in such case, the statement so agreed to and signed and certified by the court to be correct, and the judgment rendered thereon, shall constitute the record of the cause."
Judgment was entered as prayed for in favor of plaintiffs for one parcel of the lands involved, from which plaintiff has by appeal brought it here for review, and defendants, below, have filed cross-assignments. All raise the question: Did the court render the proper judgment upon the statement?
First, the writer is of the opinion that the case should be affirmed for the following reason: The parties failed to comply with the provision of this statute requiring the court to certify that the agreed statement is correct, nor is it approved as an agreed statement of facts. It is therefore not sufficient to constitute either. Chickasha Mill Co. v. Crutcher (Tex.Civ.App.) 141 S.W. 355; Scott v. Slaughter, 97 Tex. 244,77 S.W. 950.
Being without an agreed statement and without statement of facts by which to test the correctness of the court's judgment attempted to be appealed from, this court must presume that it is correct. McDowell v. Fowler, 80 Tex. 587, 16 S.W. 431.
The majority are of the opinion that the agreed facts appearing in the record signed by counsel for the respective parties should be considered and the appeal disposed of upon the facts therein shown for the following reasons:
The judgment in this case recites: "All matters of law and of fact, as set out in the agreed case, were heard by the court." The trial court's findings of fact recites that "the facts are found in strict accordance with the agreed case." While the statute requires that the agreed statement should be signed and certified by the court, it has been held that such is not necessary where it otherwise appears from the record that the case was tried upon the agreed facts. State v. Connor,86 Tex. 133, 23 S.W. 1103; Bomar v. West, 87 Tex. 299, 28 S.W. 519.
The recitals in the judgment and findings of fact cure the failure to strictly comply with the statute, especially so since no point
in this respect is made by the appellee and no motion to strike out the agreed facts.
If the document is sufficiently authenticated to require the court to consider the case upon its merits, then the majority are of the opinion that the following is the law of the case:
Agreement:
"J. M. Darr, W. S. Barnes, H. A. Borcherding F. P. Jones, Trustees, v. W. T. Johnson, J. D. Gage, C. L. Blandin and E. A. Mueller. No. 22425. In the above styled and numbered cause it is agreed between the parties that the following are the facts upon which judgment may be rendered herein:
"(1) Tornillo Camp No. 42, Woodmen of the World, is a local unincorporated camp or lodge of a fraternal beneficiary order known as the Woodmen of the World, the supreme camp thereof being located at Omaha, Neb., and said Tornillo Camp No. 42, Woodmen of the World, being located at El Paso, Tex. Its property was held by trustees, and for some years previous to the 24th day of August, 1921, said trustees had held for said organization the following described tracts or parcels of land in the city and county of El Paso, Tex., in fee-simple title absolute:
"The east 16 feet 8 inches of lot 30, all of lot 31 and the west 8 feet 4 inches of lot 32 in block B of Stevens' addition to the city of El Paso, Tex., according to the map of said addition, having a total frontage of 50 feet on West Franklin street.
"Also the north 1/2 of lot 5, all of lot 6, and the south 1/2 of lot 7, in block 253 of Campbell's addition to El Paso, Tex., having a total frontage of 50 feet on North Ochoa street, the latter tract being subject to an incumbrance of approximately $800 for part of the purchase money; and on said 24th day of August, 1921, S. A. Vaughan, W. S. Barnes, and H. A. Borcherding were managers, auditors, and trustees of said Tornillo Camp No. 42, Woodmen of the World, and as such were vested with the title to the said property.
"(2) That on the 24th day of August, 1921, the said managers, as auditors and trustees, joined by E. C. Gessler as consul commander of the said camp, he being the presiding officer thereof, corresponding to president, executed a deed in general warranty form conveying the said property to F. P. Jones, said original being presented with this agreed statement of facts and submitted to the court, said deed being filed for record at El Paso county, Tex., on the 26th day of August, 1921, and recorded in Volume 375, at page 530, of the deed records of El Paso county, Tex.
"(3) That contemporaneously with the execution of the said deed, the said F. P. Jones, grantee therein, executed and delivered to the said managers and trustees an instrument, the original of which is submitted to the court with this agreed statement of facts. This instrument covered the land described in the deed hereinbefore mentioned and was filed for record in the deed records of El Paso county, Tex., on the 24th day of October, 1922, and is recorded in Volume 400 at page 137 of the deed records.
"(4) On the 22d day of June, 1922, the defendants in this suit filed a suit in the Forty-First judicial district court of El Paso county, Tex., No. 22300, against F. P. Jones and others upon individual liability for debts of the said F. P. Jones, being the same person who was grantee in the deed mentioned in paragraph 2, above. And on the same date the plaintiffs in said cause (who are defendants in this cause) caused a writ of attachment to issue out of the Forty-First judicial district court of El Paso county, Tex., and to be levied by the sheriff of El Paso county, Tex., upon the property hereinbefore described, as the property of F. P. Jones, defendant in said cause, he being one of the plaintiffs herein, and thereafter said writ of attachment was recorded in the records of attachment liens in El Paso county, Tex., in volume 2. and at said time, and all times prior thereto, defendants had no notice of the instrument mentioned in paragraph 3, above, executed by F. P. Jones, or of any trust estate therein.
"(5) Thereafter, on the 18th day of December, 1922, in this court, the defendants herein (plaintiffs in cause No. 22300) obtained a judgment against the said F. P. Jones, and one of his codefendants therein, for a large sum of money, and reference may be had to the minutes of this court for a copy of the said judgment in which the attachment lien mentioned, which was levied as hereinbefore described, was foreclosed and an order of sale was directed to be issued out of the office of the clerk of this court for the sale of the said land as under execution to satisfy the said judgment.
"(6) Previous to the execution of the instrument mentioned in paragraph 2 above, the North Ochoa street property, on which was located a dwelling, was occupied by and in the possession of tenants of the Woodmen of the World, Tornillo Camp No. 42, of El Paso, Tex., who continued in possession thereof and are still in possession of the said premises and have at all times since, as well as previous to the execution of the said instrument mentioned in paragraph 2 above, paid their rentals to the agents and officers of Tornillo Camp No. 42, Woodmen of the World, and are still paying rentals to them.
"(7) On the 6th day of December, 1922, a lis pendens notice in all respects regular was filed by the plaintiffs in this cause in the office of the county clerk of El Paso county, Tex., setting out and fully describing the allegations of the plaintiffs' original petition herein.
"(8) At the time of the filing of this suit, and at the present time, J. M. Darr, W. S. Barnes, and H. A. Borcherding are managers, trustees, and auditors of Tornillo Camp No. 42, Woodmen of the World, of El Paso, Tex., and as such, under the constitution and bylaws of said organization, are entitled to hold and are vested with the legal title to all of the property of the said organization.
"In witness whereof, we have hereunto set our hands in El Paso, Tex., this 19th day of January, A.D. 1923.
"Goggin, Hunter Brown, Attorneys for the Plaintiffs.
"Armstrong Morrow, Attorneys for the Defendants."
The instrumnt referred to in paragraph 3 as pertinent is as follows:
"The State of Texas, County of El Paso. Whereas, Tornillo Camp No. 42, Woodmen of
the World, * * * in regular session ordered the managers as auditors and trustees * * * to sell, tranfer and convey to the undersigned the following real estate (then follows description), and, whereas, said officers have executed and delivered said deed thereby, transferring and conveying said property to the undersigned: this is to acknowledge that I have received said conveyance in trust and agree to reconvey the same to such person as said officers shall direct at any time they may request said conveyance dated, signed and acknowledged, August 24, 1921. Filed for record Oct. 24, 1922."
This cause was submitted to the trial court upon agreed statement of facts, and the court found and entered judgment for the trustees of the Woodmen of the World:
"That the judgment against F. P. Jones foreclosing the attachment lien be * * * hereby removed and declared to be of no force and effect, null and void, and the title quieted in the trustees, to that parcel of property containing the improvement and occupied by tenant described above. And held the lien to be in force upon the unimproved lots."
From which the Woodmen Lodge has appealed.
It is apparent that the trial court considered and determined the question of law upon the theory of notice under our registration statutes; but when a case is tried upon an agreed statement as was this one, it is presented to the trial court and likewise to this court in the nature of a special verdict as to the facts, and the court is to declare the law which necessarily arises from the facts agreed upon. Hutchorson v. W. O. W., 112 Tex. 551, 251 S.W. 491, and cases there cited.
The portion of the article invoked which appellees rely on is:
"All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; * * * shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the Clerk, to be recorded as required by law." Article 6824, R.S.
The instrument signed by Jones does not purport to be a conveyance of any interest or estate in the property, but is simply a written acknowledgment that he holds the naked title as trustee for the Lodge, and as it appears in the agreed statement is proof of that fact so it is not an instrument to which the statute may be applied.
The question of law upon these facts is: The deed being absolute upon its face but in fact conveying only the naked legal title to Jones, are the lands subject to the attaching creditor's lien? The majority have concluded that they are not.
The deed to Jones having conveyed the naked legal title and the equitable title remaining in the Woodmen of the World, the attaching creditors, appellees, acquired no more interest in the lands than Jones had. Blankenship v. Douglas, 26 Tex. 226, 82 Am.Dec. 608; Grace v. Wade,45 Tex. 522; Long v. Fields, 31 Tex. Civ. App. 241, 71 S.W. 774; Cetti v. Wilson (Tex.Civ.App.) 168 S.W. 996; Reyes v. Kingman, Tex. Imp. Co. (Tex.Civ.App.) 188 S.W. 450; First State Bank of Amarillo v. Jones,107 Tex. 623, 183 S.W. 874.
Reversed and rendered for appellant, Woodmen of the World.