On Motion for Rehearing.
Appellant contends earnestly that the judgment affirmed is void on its face, and therefore cannot be affirmed by this court. If this were conceded to be correct, then it might become the duty of this court, after arriving at the conclusion that appellees are entitled to judgment, to reverse the judgment of the lower .court, and here render judgment that appellants, who were plaintiffs below, take nothing by their suit.
[10] But we take it that the mere fact that the judgment itself recites that the court rendered same notwithstanding the verdict would not render such judgment void. We see no useful purpose to be subserved by sending the case back for a new trial on account of the shadowy objection that the judgment below recites that it was rendered on a motion for judgment notwithstanding the verdict. Nor do we deem it necessary, merely on account of such recital, to reverse the judgment, and here render judgment to the same effect. Appellants also insist that the decision in this case cannot be reconciled with that of our Supreme Court in the case of Ablowich v. Bank, 95 Tex. 431, 67 S. W. 79. It should be borne in mind that the Ab-lowich Case was not submitted upon special Issues, but upon a charge specifically submitting the issues both of debt and mortgage, and the jury found only upon the debt, which was held by the Supreme Court to constitute a finding against the mortgage. The trial court rendered judgment for foreclosure of the mortgage in the face of an express finding by the jury against it, which was held to constitute error. In this case, as‘expressly stated in our opinion, the judgment that appellants take nothing by their suit can be based upon undisputed evidence upon an issue not submitted to the jury and upon which the jury made no finding.
[11] Appellants urge that we are setting a precedent by reason of which judgments non obstante veredicto will become a matter of frequent occurrence, and trial courts will contradict verdicts. We consider this fear groundless. A perusal of our opinion will show that we do not hold that the trial court can contradict the verdict, and that it. is only when the court should have instructed a verdict upon an issue not submitted far the jury that we feel authorized to ignore the verdict upon issues which, by reason of the undisputed evidence on the other issue, become immaterial.
[12] Appellants now contend that the evidence shows that the Coyote ranch was te be excepted from the Sullivans’ claim under *525tlie deeds-of trust, and that it was really to be freed from debt for D. It. Fant, out of the proceeds of the property transferred to Mrs. Fant under the trust agreement. The petition in cause No. 19,375, which undertakes to describe the trust agreement, certainly contains no express provision to that effect, nor does it contain any language from which any such intention can be inferred. The petition alleges that Sullivan & Co. should sell “all of the property covered by their deeds of trust and chattel mortgages, and buy the same in at such sales thus vesting title in them.” It further alleges that it was agreed “that they would return all of the excess and equity in said property to said Mrs. Lucie A. Fant, wife of the said D. R. Fant, for her sole use and benefit, especially agreeing and declaring that the same was not to, and would not be, paid or turned over and delivered to D. R. Fant, and would carry the indebtedness for them until a sufficient amount of property could be sold with which to fully pay off and discharge the same, thus giving them all the time that would be necessary in which to pay off said indebtedness.” It was further alleged “that they would pay off the indebtedness and incum-brance against the Coyote ranch, which consisted of about 42,000 acres, in favor of J. C. and Mary Russell, and likewise carry said indebtedness until a sufficient amount of the property belonging to plaintiffs could and would be by them sold with which to pay off said entire indebtedness, including said indebtedness which they might and would take up with and to the said J. C. and Mary Russell.” We find not a word which can be construed as a provision enuring to the special benefit of D. R. Fant, and the fact that mention was made of the Coyote ranch is accounted for by the evidence showing that the Russell indebtedness was due and pressing, suit had been instituted, and some arrangement had to be made at once, so, after providing for the extension of all the indebtedness due the Sullivans until sufficient property should be sold, it was natural to make special mention of the large indebtedness to others which they were called upon to pay and carry. This construction is supported ¡by the fact that Fant was to get none of the surplus, by the evidence which shows that Mrs. Fant interested herself to the extent of procuring an opinion from Ogden & Brooks with respect to the advisability of investing the money required to pay off the Russell indebtedness pending the determination of the suit instituted by the state for the land, by the fact that Fant executed to the Sullivans a confirmatory deed conveying other lands than those embraced in the deed of trust, by the fact that no money was to be turned over to Fant, but a stipulated amount per month was to be delivered to Mrs. Fant. There is no evidence that Fant interested himself in any way in the Coyote ranch after such trust agreement was made until he undertook to buy it back from the Russells in 1905. In fact, the evidence strongly indicates that Fant, with his consent, was retired from all participation in the ownership and management of the estate at that time owned as the community property of himself and wife. Appellants say the trust agreement was violated when Sullivan permitted the Russell foreclosure suit to go to judgment. If so, recovery for such breach should have been obtained in the other suit.
Appellants request us to correct that portion of paragraph 8 of our statement of the contents of the petition in this case which reads, “And that defendants would take up the debt on the Coyote ranch and carry that in the same way,” so as to read as follows: “Would take up the Fant debt on the Coyote ranch and carry that in the same way.” This request must be granted. In view of the allegation in the petition in cause No. 19,-375, hereinbefore set out, we must confess that we fail to see wherein the difference is vital as contended by appellants.
Appellants also object to our finding that the Coyote ranch was included in the confirmatory deed. This is stated in appellee’s brief, and not denied in appellant’s reply to same, and we must have taken it for granted, as we fail to find it in the record. The statement of facts contains the notation “confirmatory deed omitted.” We withdraw the finding.
Objection is also made to another portion of the opinion, concluding with the sentence, “Taking these matters into consideration, we fail to see how the assertion of their claim constituted a claim of ownership by the Sulli-vans as against Mrs. Fant,” which sentence was particularly objected to: We still say the assertion of such claim is in itself no evidence that the Sullivans were claiming adversely to Mrs. Fant, even though such act was contrary to the interests of Fant himself; that this fact alone would not prove a repudiation of the trust because in line with the trust agreement. We see no merit in the objections made to this portion of the opinion, nor do we think it conflicts with the findings of the jury.
The first finding of the jury relating to the intent with which Sullivan tendered the money to the Russells and brought suit against them related to events occurring subsequent to the time when J. G. Sullivan made the statement, and the other finding was that the statement was maliciously made. The allegation of the petition is that it was malicious, in that it was intended to prevent Fant from redeeming the ranch. Such a finding would not conflict with the statements objected to. The portion of the opinion objected to was in answer to appellants’ contention made in their printed reply to appellees’ brief “that the Fants did not owe defendants a cent, for the reason that the Sullivans then had in their posses*526sion .and claimed ás their own (having repudiated the Pant trust) property belonging to the Pants to the value of several hundred thousand dollars over and above the Pant debt.” -This contention is virtually an admission that, .to show the falsity of the alleged slanderous statement, appellants were required to show, first,' that the Sullivans had at the time of the statement repudiated the trust agreement; 'second, that they had property in .their hands belonging to the Pants of .such value as equalled or exceeded the debt due the Sullivans by the Pants. There is no evidence to show the value of .the property then in the hands of the Sulli-vans, nor any evidence that sufficient property had been sold at that time to pay off .such debt. As pointed out in our opinion, the alleged slanderous statement was literally true, and its falsity, in fact, was not shown by any testimony showing the satisfaction of the deed of trust. Had the evidence shown that sufficient property had been sold to pay the Sullivan indebtedness, or that the Sullivans held property of the Pants of the value at that time equal to the indebtedness, then the question of repudiation would be of great importance, because, if the trust was repudiated and the indebtedness paid, there would be no further ground for asserting the lien created by the deed of trust.
We deem it unnecessary to go into the question of repudiation further than to say that we did not overlook the testimony of D. Sullivan taken in the suit against the Rus-sells, wherein he stated there was no trust agreement and had been none. The date of this testimony is not given in the record, nor the date when said case was dismissed. Therefore we do not know whether this testimony was given before or after the date when the Pants in the other case alleged the trust to have first been repudiated, viz., about April 1, 1906. It would seem that said allegation in the other petition would have much weight, but appellants virtually contend that the finding of the jury that, when the money was tendered to the Russells and suit brought, the Sullivans intended to acquire the land for themselves is inconsistent with the admission made in the former pleading by the Pants, and, further, that it is sufficient to establish that the repudiation had taken place at the time the statement was made by J. C. Sullivan, even though such statement was made prior to the tendering of said money and bringing of said suit.
[13] We are requested to make and file as a finding of fact a couple of pages of the petition in cause No. 19,375, which include the allegations of the creation of the trust agreement and a number of allegations of matters leading up to said agreement. We consider that the material portions of said pleading have been stated by us, and we decline this request for that reason, and also because we do not, consider that the mere fact of a judgment being rendered upon a petition establishes the truth of every fact stated in said petition, whether it be a fact necessary to be found or only a fact subsidiary to or leading up to the essential facts.
Objection is also made to our statement that in the petition in cause No. 19,375 it was-alleged “that they failed to redeem said ranch, and permitted the Russells to obtain judgment and buy in the land.” This objection is well taken, and the statement withdrawn. We doubtless made the mistake by reading allegation No. 10 of the petition in this case, as set out in our opinion, and got the idea it was in the other petition.
The motion is overruled.