On Motion for Rehearing
On motion for rehearing appellants assert that it was not their intention to waive their Points I and II. In view of this statement we will consider these points.
Point I presents appellants’ contention that the court erred in proceeding to trial without first acting on special exceptions to appellees’ petition. The record *761■does not reflect that the special exception was called to the attention of the trial ■court prior to rendition of judgment, in which event it was waived. Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212; Tarkington v. Continental Casualty Co., Tex.Civ.App., 341 S.W.2d 490; Kaherl v. Kaherl, Tex.Civ.App., 357 S.W.2d 622; Rule 90, Texas Rules of Civil Procedure.
Appellants’ second Point complains that appellees’ petition and amendments thereto were subject to appellants’ special exception because it failed to allege a cause of action for partition or trespass to try title. Rule 90, supra, specifically provides that every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the judge in the trial court, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived. Where a party files exceptions complaining of defects in pleadings pertaining to matters of substance, it is necessary that he call them to the attention of the trial court before the rendition of judgment, in a non-jury trial, and that he secure an order disposing of the exceptions, if the action taken by the court on the exceptions is not otherwise shown by the record. Polk v. Grogan’s Wholesale & Retail Lumber Co., Tex.Civ.App., 325 S.W.2d 201; Talbert v. Herrera, Tex. Civ.App., 353 S.W.2d 948.
Appellants request that we find as a fact that appellees had no agreement concerning any conditions under which the deed would be delivered prior to the dates that each of appellees signed the deed, and that such conditions were never made known to appellants. As the testimony quoted in our opinion shows, there was testimony of an agreement that the deed would not be delivered unless all children signed and acknowledged it. We are unable to make the requested findings for another reason. No findings of fact or conclusions of law were requested of the trial court, although certain findings are included in the judgment. No findings were made concerning delivery of the deed or agreements relating thereto.
The Court of Civil Appeals has no power to find facts in the first instance. The Leader, Inc. v. Elder Mfg. Co., Tex. Com.App., 39 S.W.2d 880. In Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958, the Supreme Court stated:
“No request was made of the trial court to make and file findings of fact and conclusions of law, under Rules 296-299, Texas Rules of Civil Procedure, and no separate findings and conclusions were filed. In the absence of findings of fact in a case tried without a jury, it is settled that we must test the validity of the judgment on the assumption that the trial court found every disputed fact in such a way as to support the judgment he rendered. Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74; International Union of Operating Engineers v. Cox, Tex.Sup., 219 S.W.2d 787; North East Texas Motor Lines v. Dickson, Tex. Sup., 219 S.W.2d 795. Petitioners point out that the judgment in this case recites certain findings of fact and, after granting an injunction against picketing, provides that all other relief not specifically granted is denied. However, this denial of other relief does not constitute a finding of the nonexistence of facts not recited in the judgment; and in this situation omitted findings necessary to support the judgment will be supplied by a presumption in support of the judgment, if there is evidence in the record to sustain such omitted findings. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562. Moreover, it is established that this court will not reverse a judgment of the trial court affirmed by the Court of Civil Appeals if the judgment is correct in view of the *762entire record, even though in our opinion one or both of the lower courts have given erroneous reasons for rendering or upholding the judgment. Walker v. Garland, Tex.Com.App., 235 S.W. 1078; Bordelon v. Philbrick, 125 Tex. 460, 84 S.W.2d 710; Payne v, Bracken, 131 Tex. 394, 115 S.W. 2d 903. * * *”
There is no evidence that appellees specifically authorized Mrs. Mitchell to deliver the deed to appellants unless it was properly signed. We remain of the opinion that under such circumstances the fact that Mrs. Mitchell gave appellant Leland O. Webb the deed under the impression that it was not effective as a deed, since her husband had not signed it and she had not acknowledged it, would not constitute a delivery of the deed.
The motion for rehearing is denied.