controversy is situate in the S. M. Harrising appellant's contention is that the plat grant. In 1852 Sarah Noble became the own- of the addition shows that it adjoins the er of a 100-acre tract in the southwest corner northern tier of blocks in the Noble addition. of the grant. Its north line ran east and This was a manifest and evident error on the west 260 varas. Its east line ran north and part of the draftsman who drew the map of south 2,237 varas, and its west line was the Foster addition. It is quite apparent parallel thereto, and coincident with the that after preparing the plat he simply west line of the grant. Upon the south it undertook to indicate surrounding additions, was bounded by Buffalo bayou. In 1867 and in referring to the Noble addition failed all of the tract was platted and laid off into to indicate the unplatted portion in the north lots, blocks, and streets, except 7 or 8 acres end of the tract. A number of similar misof the north end; this unplatted portion be- takes were made with reference to other ading 260 varas east and west by 450 feet north jacent additions. Considering all the facts and south. On February 28, 1874, James E. and surrounding circumstances as reflected Foster became the owner of a 100-acre tract by the record, we have no doubt that the lying immediately north of and adjoining plat of the Foster addition was intended to the Noble tract. It was rectangular in shape, cover only the 100-acre tract which he owned, 260 varas wide and 2,759 varas in length; and that the south line thereof did not exits east and west lines being coincident with tend further south than the north line of prolongations of the corresponding lines of the Noble tract. the Noble tract. In November, 1874, there was filed for record the map of said Foster's Second North addition. There is no statement thereon to indicate what particular tract of land was intended to be platted, but it undoubtedly referred to the 100-acre tract which he had acquired lying north of the Noble addition. From the distances indicated on the map, it will be seen that the tract platted by said map was 6,030 feet in length by 7222/10 feet in width, or 2,1708/10 varas in length by 260 varas in width, which comprises exactly 100 acres in area. [2] If we correctly interpret the remaining propositions of appellant, they are to the effect that he is entitled to recover the land in controversy as a purchaser without notice. We cannot see how any such question can be involved in this case. The issue is one of boundary alone, and, in the absence of recognition of line, or estoppel otherwise arising, it is not apparent to us how the bona fides of appellant's purchase, or his want of notice, can in any wise arise or be material. Affirmed. The draftsman who prepared the plat of Foster's addition attempted to indicate there- MOORE et al. v. TOYAH VALLEY IRR. CO. on other additions which adjoin the same on the south and west, and in such manner indicated that the north tier of blocks of the Noble addition, as platted, lay immediately south of the Foster addition. The draftsman made no indication on the plat of the unplatted strip of the Noble tract lying between the Foster 100 acres and the Noble addition as platted, but indicated that the Foster addition came as far south as the Noble addition, which would place the Noble unplatted acreage within the land covered by the Foster addition plat. The controlling question in the case thus reduces itself: Was the Foster addition, as shown by the recorded map, located immediately north of the Noble addition and covering the unplatted 7 or 8 acres in the northern part of the Noble tract, as is claimed by appellant, or was it located wholly upon and within the 100-acre tract then owned by Foster immediately north of the Noble 100acre tract? [1] In the court below the issue was resolved against appellant, and the sufficiency of the evidence to support this finding is raised by the first three propositions subjoined to the only assignment of error presented in this court. An examination of the evidence bearing upon the issue abundantly supports the finding. The only fact support et al. (No. 492.) (Court of Civil Appeals of Texas. El Paso. Where a judgment did not dispose of cerfor by them, and there was no order of dismissal tain interveners, nor of the subject-matter sued as to them, the judgment was not such a "final judgment" as would support an appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 426-428, 430, 431, 435443; Dec. Dig. 76. For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judg ment.] 2. PARTIES 40-PROPER PARTIES. Where, in a suit for an injunction, certain parties filed a petition in intervention setting up that they were jointly interested with plaintiff in the lands and waters in controversy, they were under the allegations of their petition proper parties to the action. [Ed. Note.-For other cases, see Parties, Cent. Dig. § 60-63, 65-67; Dec. Dig. 40.] the court had authority to correct its minutes [1] The decree entered by the trial court so as to show the judgment actually rendered. after hearing is not such a final judgment as [Ed. Note. For other cases, see Judgment, is required by law to confer jurisdiction upCent. Dig. §§ 581, 584-586; Dec. Dig. 297.] 4. JUDGMENT 1-"RENDITION" AND "ENTRY" OF JUDGMENT. The "judgment" of a court is what the court pronounces; its "rendition" is the judicial act by which the court settles and declares the decision of the law upon the matters at issue: and its "entry" is the ministerial act by which the enduring evidence of the judicial act is afforded. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1, 3, 4; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Entry; Judgment; Rendition of Judgment.] 5. JUDGMENT 299-AMENDMENT OR COR RECTION-TIME FOR AMENDMENT. Under Rev. St. 1911, art. 2015, providing that, where there shall be a mistake in the record of any judgment, the judge may in open court, and after notice of the application therefor to the parties interested, amend the same, and article 2016, providing that, where in the record of any judgment or decree there shall be a mistake, miscalculation, or misrecital of any sum or sums of money, or any names, and there shall be among the records any verdict or instrument of writing whereby the judgment may be safely amended, it shall be the duty of the court and the judge thereof in vacation on application of either party, to amend the judgment, where the judgment actually rendered disposed of the rights of all of the parties, but the judgment, as entered, did not dispose of the rights of certain parties, the correction of the judgment entry to conform to the judgment rendered could only be made at a subsequent term, and not in vacation; as article 2016 is 'limited to the particular errors in the record of the judgment therein indicated. [Ed. Note.-For_other_cases, see Judgment, Cent. Dig. §§ 583-586; Dec. Dig. 299.] Appeal from District Court, Reeves County; S. J. Isaacks, Judge. Action by Mrs. J. L. Moore against the Toyah Valley Irrigation Company and another in which J. T. Moore and others intervened as plaintiffs. Judgment for defendants, and plaintiffs appeal. Appeal dismissed. Hefner & Cooke and J. W. Parker, all of Pecos, for appellants. Ross & Hubbard, W. A. Hudson, E. C. Canon, J. A. Buck, and J. E. Starley, all of Pecos, Capps, Cantey, Hanger & Short, of Ft. Worth, and J. A. Drane and Harry MacTier, both of Pecos, for appellees. HARPER, J. This suit for injunction was instituted by Mrs. J. L. Moore, originally, against the Toyah Valley Irrigation Company and A. J. Carpenter. Afterwards J. T., W. E., and E. A. Moore intervened in the case, in person or through Mrs. J. L. Moore, who is alleged to be their guardian (the petition does not exactly reveal which), setting up that they were jointly interested with plaintiff Moore in the lands and waters in controversy, and they filed pleadings and adopted those filed by Mrs. J. L. Moore. on this court, in that it does not dispose of the parties (intervener) nor the subject-matter sued for by such parties. The parties J. T., W. E., and E. A. Moore have not been disposed of by the decree, nor by any order of dismissal; nor has the subject-matter of their suit been disposed of as to them by the judgment. [2] Under the allegations in their petition in intervention, the said J. T., W. E., and E. (Foster v. G., C. & S. F. Ry. Co., 91 Tex. A. Moore were proper parties to this action 631, 45 S. W. 376), and, to make the decree final, there must be an order entered of record disposing of them as parties (Mendoza v. A., T. & S. F. Ry. Co., 62 S. W. 4181), and likewise the decree of the court, in order to be such final judgment as will give this court jurisdiction to consider and determine the questions involved, must disPose of the pleas and issues of law and fact (Railway Co. v. Weld & Neville, 95 Tex. 278, 66 S. W. 1095). It is therefore ordered that this cause be dismissed at the cost of appellants. On Motion to Reinstate. By motion appellants ask that their appeal, dismissed for want of a final judgment, be reinstated, for the reason that since the order of dismissal was entered a final judgment has been entered nunc pro tunc in the trial court, and further asks for a writ of certiorari to the clerk of the district court of Reeves county, Tex., to certify the record of the judgment as corrected. The record filed in support of the motion shows that since the order of dismissal the appellants filed a motion in the district court containing the following: "That * * at the November term, 1914, * * * said cause was tried, and final judgment rendered, as appears from the docket entries and papers filed in said cause, disposing of the parties to said cause and the issues of law and fact raised by the parties thereto, that thereafter, and during the same term of said court, said judgment was duly recorded, but there was a clerical error in the record of said judgment, as so made, in this, that the said judgment does not dispose of the interveners, Mrs. J. L. Moore, as guardian, and the said J. T., W. E., and E. A. Moore, and does not dispose of the issues made by the pleading of said interveners, in that the record of said judgment omits the names of said interveners and omits reference to the issues made by their pleadings." And by prayer they asked the court to amend or correct the judgment as indicated. Thereafter the judge in vacation, October 15, 1915, caused the judgment to be corrected as indicated. [3, 4] It appears from the record that the reported as a memorandum decision without opin1 Reported in full in the Southwestern Reporter; ion in 94 Tex. 650. judgment originally rendered actually disposed of the rights of the interveners, and as a matter of fact, a final judgment was rendered. But the judgment, as entered, does not correctly reflect and evidence the judgment actually rendered. The distinction between the rendition of a judgment, and the entry thereof is stated by Judge Phillips in Coleman v. Zapp, 105 Tex. 491, at page 494, 151 S. W. 1040, at page 1041, as follows: "The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which the enduring evidence of the judicial act is afforded." Taylor v. Doom, 43 Tex. Civ. App. 59, at page 63, 95 S. W. 4. The statute which controls is article 2015, which reads that, where there is a mistake in the record of any judgment or decree, the judge may, in open court, and after notice of the application therefor has been given to the parties interested in such judgment or decree, amend the same according to the truth and justice of the case, and thereafter the execution shall conform to the judgment as rendered. This statute is a very much broader one than article 2016, and gives the trial judge unlimited authority to correct any mistake in the record of any judgment or decree, but it must be made in open court. As has been indicated, article 2016 has reference to corrections which may be made in vacation, and is limited to the particular er In the same case, 105 Tex. on page 496, 151 S. W. on page 1042, it is said by Judge Phillips: "To correct in the trial court, after adjourn-rors in the record of the judgment therein ment of the term, a judgment as rendered, an indicated. So it is plain that the remedy of independent action is necessary, as its jurisdic- the parties in this case is to have the judgtion of the case is at an end. In the latter in- ment entry corrected by an order made in stance [i. e., a proceeding to correct or supply the minutes of the court so as to have them open court nunc pro tune at a subsequent truly recite a judgment actually rendered] the term, under article 2015. court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry, because the inherent power that it possesses as a court over its own records endures for the sake of their verity.' It appears from the motion in this case that all parties would prefer to have this case disposed of upon the present appeal. We at this time see no reason why it should It is thus seen that the trouble in this not be done after a nunc pro tunc entry is case is not that the court did not render a the entry of the judgment, so as to dispose made in the trial court, properly correcting final judgment, but that it failed to enter a the entry of the judgment, so as to dispose final judgment. The latter being the case, The latter being the case, of all issues and parties, upon a motion it is clear, under numerous authorities, that which may be thereafter seasonably presentthe court has authority to correct its minutes ed to reinstate the appeal. The motion is in all things overruled. so as to show the judgment actually rendered. Hamilton v. Joachim, 160 S. W. 645, at page 647, and authorities there cited, and also Yarbrough v. Etheredge, 163 S. W. at page 999. [5] It remains therefore only to be determined whether the correction of the minutes can be made in vacation, or must it be made by a nunc pro tunc order entered during term time. The only authority to amend a judgment entered in vacation is contained in articles 2016 and 2017, where it is provided that: "Where in the record of any judgment or decree of any court there shall be any mistake, miscalculation, or misrecital of any sum or sums of money, or of any name or names, * * * it shall be the duty of the court in which such judgment or decree shall be rendered" to amend same. Plainly, this cause does not fall within the terms of that article, because it is not any mistake, miscalculation, or misrecital of any name or names; but it is a plain case of failure to incorporate in the judgment entry a disposition of the rights of interveners. Construing article 2016, our courts in several cases have, in effect, held that only clerical errors may be corrected in vacation by virtue of this statute. See Mansel v. Castles, 54 S. W. 299; Railway Co. v. Haynes, 82 Tex. 448, 18 S. W. 605; Hinzie v. Kempner, 82 Tex. 617, at page 621, 18 S. W. 659; and LOCKNEY STATE BANK v. DAMRON. (Court of Civil Appeals of Texas. Amarillo. 1. PRINCIPAL AND AGENT 171 — UNAU THORIZED ACTS-ACCEPTANCE OF BENEFITS. A person or corporation cannot retain an advantage secured by fraud of one of its agents and accept the benefits of his act, without also adopting the means by which the advantage was procured, though the principal had no knowledge at the time what those means were. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. 171.] 2. CANCELLATION OF INSTRUMENTS 47 - A woman suing for the cancellation of a note for $3,300 given to a bank, who at the time it was signed was about 70 years old, ignorant, uneducated, and practically unable to read and write, testified that the cashier of the bank, who accompanied her grandson to her home to obtain her signature to the note, represented that it was for $1,700; that he had also signed the note; that if she would sign it he would stand between her and all danger; that she had confidence in him, knew his position as cashier, and thought he was reliable and possessed property; that she understood he was representing the bank; and that she told them when she signed the note that she would not pay it, and they took it with the understand ing that she was not to pay it. Held that, assuming that an agreement that she would not be legally bound as a maker of the note would be fraudulent as to the bank and preclude equitable relief, the testimony was open to the construction that she understood that she was not to pay the note because of the cashier's agreement and representations that he would stand between her and all danger, in connection with her belief in his solvency, and, if such was the understanding, the contract was not fraudulent as to the bank, especially as, had it not been for the cashier's fraudulent representations, her obligation to the bank would not have been affected by this agreement, and the bank could not have been injured thereby. it he would stand between her and all danger, and that if such representations had not been made by Mr. Garrison she would not have executed the paper, that they (evidently meaning Jones and Garrison) represented to her that this was an extension of another note, and that they simply wanted a little longer time upon the obligation and had plenty of cattle to settle the same. She said that she had confidence in Mr. Garrison, knew the position that he held in the bank at Lockney as cashier, and thought he was reliable and possessed of some property, that she understood that Mr. Garrison was repre [Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec.senting the bank, and that she signed the Dig. 47.] HENDRICKS, J. The appellee, Mrs. S. A. Damron, instituted this suit against the appellant, the Lockney State Bank, for the purpose of canceling a note on its face for the sum of $3,300, which at the time of the institution of the suit had not matured. Mrs. Damron, who signed the note, with her mark as signature, at the time was about 70 years of age, ignorant, uneducated, and practically unable to read and write. At the time of the execution of the note D. F. Jones, the grandson of Mrs. Damron, was indebted to the Lockney State Bank, and, with Garrison, cashier of the bank, visited the home of Mrs. Damron, several miles in the country, for the purpose of obtaining the signature of his grandmother upon the particular note. Mrs. Damron testified that antecedent to the execution of the note Mr. Garrison, the cashier of the bank, represented to her that the note was for $1,700, and that he had also signed the note, and that if she would sign note in order that Mr. Garrison could get the amount of money represented by the note from the bank, and further testified: I would not pay it at all, and they took it "I told them when I signed it [the note] that with that understanding-that I was not to pay for it." The trial court, without the assistance of a jury, canceled the note, and the assignment which we will discuss is one, in effect, that, Mrs. Damron having testified that she had an understanding that she was not to pay the note when they took it, and knowing that said note was being executed for the purpose of securing money from the bank for Garrison, she was guilty of such fraud as to preclude a recovery. The authorities principally cited to sustain this view are Jines v. Astle, 170 S. W. 1081, Rushing v. Bank, 162 S. W. 469, and Hawkins v. Bank, 175 S. W. 166, with the additional case of Cotton v. Rand, 93 Tex. 7, 51 S. W. 842, 53 S. W. 343, decided by the Supreme Court; the first three cases having been decided by this court. Appellant also, as a subsidiary proposition under the above assignment, contends that Garrison having an interest in the appellant bank, that no representations or fraud of Garrison could be imputed to the bank. [1] There may be a phase of this case that Garrison, reckoning it upon the representations he made to Mrs. Damron, if he informed her, and she so believed, that this was his note to the bank, and he was individually obtaining the money, such antagonism of interest, if it were true, might exist. However, in passing upon appellant's secondary proposition, there exists the applicable principle that a person or a corporation cannot retain an advantage secured by fraud of one of its agents and accept the benefits of his act without also adopting the means by which the advantage was procured, although the principal may have had no knowledge at the time what those means were. American Nat. Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Allen v. Garrison, 92 Tex. 546, 50 S. W. 335; Cowboy State Bank & Trust Co. v. Guinn, 160 S. W. 1105; Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1063. [2] Assuming argumentatively only that been injured in law. If the representations had not been made, the mere agreement, if it existed as the appellant construes it, that she was not to be bound upon the note, would rights whatever in law. If so, how could such contract have a tendency to operate as a fraud in law upon the bank? Without deciding it upon the consideration last suggested, we think, upon an interpretation of the record, susceptible of two meanings, and resolving it presumably as the trial court construed it, the assignment should be overruled. Other assignments we think unnecessary to discuss and are overruled. an agreement, as construed by appellant to have been made in this case, is one the tendency of which is to permit the perpetration of a fraud as to preclude equitable consideration of rights by a participant, how-be unavailing as to deprive the bank of any ever, we think, resolving the testimony presumptively as the trial court resolved it, and the transaction, considering the evidence as a whole, that the authorities cited and the principle attempted to be held applicable are not pertinent. Appellant's construction and theory is, as we view it, that Mrs. Damron agreed with Garrison, and Garrison with her, that she would not be bound, in so far as any legal obligation is concerned, as a maker of the note. Such a construction is deducible from the testimony. However, there is another construction that Mrs. Damron understood that she was not to pay said note on account of the agreement and representations by Garrison with her belief in his solvency that he would stand between her and all danger upon the obligation, and for that reason she would not pay it. "It is a well-established rule of construction that language in a contract which is susceptible of two constructions, one of which would render the contract illegal, and the other would make it lawful, that contract which would conform the contract to the law must be adopted." Foard County v. Sandifer, 105 Tex. 424, 151 S. W. 524. Chief Justice Brown also said in that case, quoting from Clark on Contracts: "Where a particular word, or the contract as a whole, is susceptible of two meanings, one of which will render the contract valid, and the other of which will render it invalid, the former will be adopted so as to uphold the contract." It is clear to us that, if Garrison agreed with Mrs. Damron that she would not have to pay the note, on account of the assumption by him, as between them, of the whole liability for the paper, such contract had not a fraudulent tendency, nor, as far as this record suggests, would violate any rule of public policy to the extent that the same would be void, and constitute fraud upon the bank. [3] Again, as presented in this record, could such a contract operate as a fraud upon the Lockney State Bank? The terms of a promissory note are conclusive of the contract and cannot be changed by parol evidence that the note was executed with an understanding between the parties that it was never to be paid. Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Roundtree v. Gilroy, 57 Tex. 176, 180; Self v. King, 28 Tex. 552, 553; Bailey v. Rockwall County Nat. Bank (Civ. App.) 61 S. W. 530, 531. If it were not for fraudulent representations Mrs. Damron could not impeach this note upon the character of agreement which appellant claims was made. Her obligation to the bank would be unequivocal, and stripped of the fraud that permits the woman to cancel the note, the bank could not have [4] The trial court resolved the testimony as to representations of Garrison against the bank which constitute sufficient grounds for the cancellation. Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604. Affirmed. MORRIS v. MCSPADDEN et al. (No. 825.)* Oct. 16, 1915. On Motion for Re- 1. JUDGMENT 256-CONFORMITY TO SPECIAL FINDINGS-IMMATERIAL FINDINGS. The issue found by the jury must or should respond to the issues presented by the pleadings, and, if they do not so respond, the issues so found should be regarded as immaterial, and not be considered in rendering the judgment. [Ed. Note. For other cases, see Judgment, Cent. Dig. 88 446-454; Dec. Dig. 256.] 2. TRIAL 366-SPECIAL ISSUES-REQUESTS -EXCEPTIONS BAD IN PART. Where five special issues were requested on one paper, and refused as a whole, and an exception taken to the refusal of all five, and three of such issues were given substantially as re fusal of the other two would not be considered. quested, an assignment complaining of the re[Ed. Note. For other cases, see Trial, Cent. Dig. 88 875-878; Dec. Dig. 366.] 3. TRIAL 366-SPECIAL ISSUES-REQUESTS -EXCEPTIONS BAD IN PART. A general exception to the refusal to give special charges en masse will be overruled, where part of them were embraced in the main charge as given. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 875-878; Dec. Dig. 366.] On Motion for Rehearing. 4. JUDGMENT 256-SUIT FOR ACCOUNTINGCONFORMITY TO FINDINGS. Where, in a suit for an accounting between partners, the jury found the expenses paid out, who paid them, and what each paid, the losses sustained, the amounts received by each partner, and that defendant had received $11,196.83%, which had not been accounted for, and further found that there was $6,820.98 belonging to the partnership that had not been divided by agreement of the parties, though it had not been specifically pleaded that the partners had by agreement divided part of the funds, thereby requiring a division only of the remainder, the issue as to the amount not divided by agreement was immaterial, and the finding thereon could not defeat a verdict or recovery upon the amount found by a true accounting, and a judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |