text:
    James Cox et al. v. E. J. Harvey.
    (Case No. 4097.)
    1. Charge of the court.—It is error to charge the jury even hypothetically upon a state of case the evidence did not present, and which might induce them to conclude they were at liberty to find according to the assumed hypothesis. Where the court, in its instructions to the jury, submits issues upon which there has been no evidence, and it is not clear that the jury have not been misled, the judgment must be reversed. Austin v. Talk, 30 Tex., 167; ' Yarborough v. Tate, 14 Tex., 483; Earle v. Thomas, id., 583.
    3. Homestead — Abandonment — Charge of the court.—In a suit involving the homestead and the question of its abandonment, an instruction to the jury that, “if it was the fixed intention of Ritz to abandon his homestead at the date of the levy of the attachment, it would not be necessary to prove that such was the intention of his wife also, to entitle the plaintiff to recover,” was erroneous. Gouhenant v. Cockrell, 30 Tex., 97; Woolfolk v. Ricketts, 48 Tex., 37; Cross v. Everts, 38 Tex., 533.
    3. Charge of the court — Abandonment of homestead.— On the question of abandonment of the homestead, refusal of the court to instruct the jury, when asked, that “though Ritz and wife left the premises with the intention of abandonment, if they could sell, that that would not necessarily constitute an abandonment which would forfeit their right of exemption. It must be undeniably clear, and beyond all reasonable ground of dispute, that there has been a total abandonment with intention not to return and claim the exemption, in order to render the property liable for bis debts,” was error. Shepherd v. Cassiday, 30 Tex., 39.
    4. Homestead — Fact case.— See this case for evidence held insufficient to prove abandonment of the homestead.
    Appeal from. Grayson. Tried below before the Hon. Joseph Bledsoe.
    This suit was instituted by Harvey to recover of Cox and Martin Bitz and wife lots 3 and á, in block 9, in the town of Whitesboro’. The petition sets out how the plaintiff acquired title. McLain & Bro. sued out an attachment against Wm. Bitz in 1875, which was levied on the lots as Bitz’s property, and on 13th March, 1875, a judgment and foreclosure was recovered by McLain & Bro. against Bitz for §81.65 and costs. That in August, 1875, the lots were sold under the judgment and order of sale, and purchased by plaintiff for §112.65.
    Cox answered, disclaiming title.
    Bitz and wife answered the general denial and set up that the property was their homestead.
    The case was submitted to a jury, who returned a verdict for the plaintiff, and there was judgment accordingly. The defendants moved for a new trial, which being overruled-the defendants appealed.
    The defendants assign for error the third and fourth charges given by the judge, the refusal of the charge asked by the defendants, and the overruling the motion for a new trial, for that the verdict was contrary to the law and evidence.
    The testimony for the plaintiff was in substance as follows:
    It was admitted that McLain & Bro. attached the lots as the property of Ritz and recovered judgment and a decree of foreclosure of the attachment lien in March, 1875, as alleged in the petition; that a sale was had under that judgment and order of sale in August, 1875, at which plaintiff be- ” came the purchaser, and that these proceedings were regular; that the title to the property was in Ritz at the time of the levy of the attachment; that Ritz had appeared in the suit and moved to quash the attachment on the ground that the lots were his homestead, but his motion was overruled; that he gave notice at the sale that the property was his homestead. That Ritz was a married man and resided on the property until the spring of 1874, and that it was till then his homestead, when he moved with his family across the river into the Indian territory, and has resided there hitherto; that he has acquired no other homestead; that the property has been controlled by him and rented out, except part of the time, for the last year or two, it has been occupied by Ritz and wife.
    Charles McLain, plaintiff in the judgment in the justice’s court, a witness for the plaintiff, testified: Ritz moved from Whitesboro’ to the Indian territory in the early part of 1874. In the spring of 1874 he went to see Ritz and collect his debt from him. He staid all night at his house. Ritz told him he had left Texas for good, never expected to return; abused almost everybody in and around' Whitesboro’; “all the time expressing himself in the most positive terms that he had left Texas for all time to come, ánd expressed a desire to sell his property in Whitesboro’. This witness never heard Ritz’s wife say anything about it. All that she said “ went to confirm him in the belief that she was of the same mind with her husband.”
    Gordon, for plaintiff, testified: That in the summer of 1875 he heard Martin Eitz say he expected to live and die in the territory. 'He had all his personal property with him, leased some land, built some cabins and set up a blacksmith’s shop., He often mentioned his having left Texas.
    Overton Love, for the plaintiff, testified: Eitz moved to my place from Whitesboro’ in 1873. He is on a place he calls his home. I have frequently heard him say he would not live in Texas another day, and if he could not sell his property he would-burn it up; that he had moved the yard gate from his place at Whitesboro’; that his father-in-law had offered him a home in Texas and he would not have it; had never heard him claim his property at Whitesboro’ as his homestead until he was sued.
    Wilson, for the plaintiff, testified that Mrs. Eitz made a few visits back to Whitesboro’, staying a short time, but not till after the suit was commenced.
    Defendants then introduced the following testimony: Martin Eitz swore: “We first occupied the property in 1866, and from that time to 1874, when I left and went on a farm. I was broke and desired to recruit, in order that I might run a shop in Whitesboro’. I have not acquired any other homestead. I expected to return to the property in twelve months when I left it. I instructed my attorney, when I left, to pay the taxes and keep the place in repair until my return. Lorena Eitz and I have been married twenty-four years. I never expressed any intention not to return to my home in Whitesboro’ as my homestead. I have lived on the property of Judge Love and Jack Florence under a permit; have built some log cabins and fenced one hundred acres.
    Lorena Eitz testified to the same facts.
    Dr. Kelly testified: “When Martin Eitz was talking of going to the Indian Nation, I urged him not to go — he was indebted to me. He remarked that he was going to the Nation to try to make a raise, and when he got money sufficient he expected to come back and make his home in Texas or Whitesboro’; am not sure which, but my impression was he did not expect to make his home in the ¡Nation longer than he could succeed in getting money enough to pay off his debts.
    This is all the material testimony in the case.

      Fears A Wilherson, for appellants.

      Brock A Goodrich and J. It. Cowles, for appellee.
   Quinan, J.

The charges of the judge to which the defendants except are these:

I. If you believe from the evidence that the defendants had another homestead elsewhere, at the date of the levy of the attachment mentioned, they could not claim the old one.”

While it may be admitted that abstractly this is a correct proposition of law, yet we are of opinion that in reference to the testimony in the case it was calculated to mislead the jury. There was no testimony whatever that Eitz had acquired another homestead; it was admitted that he had not, and the only effect that this instruction could have had was to direct the attention of the jury to the facts of the residence of Eitz on Love’s land under a permit, his putting up a blacksmith shop, and building some cabins there and fencing some land, and to permit them from these circumstances to infer the acquisition of a new homestead.

“ Where the court in its instructions to the jury submits issues upon wdiich there has been no evidence, and it is not clear that the jury have not been misled, the judgment must be reversed.” Austin v. Talk, 20 Tex., 167. So, it is error to charge the jury even hypothetically upon a state of case the evidence did hot present, and which might induce them to conclude they were at liberty to find according to the assumed hypothesis. Yarborough v. Tate, 14 Tex., 483; Earle v. Thomas, 14 Tex., 583.

The second assignment of errors is that the court erred in holding that an intention to abandon the homestead by the wife was not necessary in order to subject the same to the husband’s debts. The language of the judge’s charge is, “ if it was the fixed intention of Ritz to abandon his homestead at the date of the levy of the attachment, it would not be necessary to prove that such was the intention of his wife also, to entitle the plaintiff to recover.”

We have no adjudications in this state directly upon the point presented in this assignment. It is true, it is said, in Holliman v. Smith, by McAdoo, J.: “ The husband is the head of the family; he, not the wife, chooses and establishes the homestead, and when he establishes it, his homestead becomes her homestead whether she be willing or unwilling; . . . when he sees fit to change the homestead and dedicates another, eo instanti the new homestead becomes that of the wife and the family also.” Holliman v. Smith, 39 Tex., 362.

But this rule would have no application in the present case, for there is no new homestead acquired or dedicated. And what is said of the husband’s right in that case to change the homestead, whether the wife were willing or unwilling, was a mere dictum not necessary to the disposition of the case.

To the same effect also is the case of Allison v. Shilling, 27 Tex., 454. That when the wife has left the former homestead and accepted a new one, she cannot insist upon homestead rights in the abandoned homestead.

But we concur in what is said by Chief Justice Hemphill in Gouhenant v. Cockrell, 20 Tex., 97:

“ The husband cannot alienate the homestead without the consent of the wife. Can he deprive her of its benefits by abandoning his residence and wandering from post to pillar, or by the acquisition of casual residences for temporary purposes? This would make- the guaranties of the constitution mere form, not substance.”

And while we might concede that the homestead might be abandoned and the rights which the wife has in it might be lost even without the acquisition of a new homestead (Woolfolk v. Rickets, 41 Tex., 359), by a clear and unequivocal, voluntary act on her part, evidenced by her conduct and declarations and assent to removal from it, freely and willingly, and especially so where third persons are induced thereby to give credit or incur liability on the faith of her acts and declarations, that her claim to the homestead no longer exists, we cannot yield our assent to the proposition that without her consent, signified in some mode, to the abandonment of the homestead, the husband has the power to deprive her of its benefits, and subject it to his debts and uses, by simply causing her to remove from it. The constitution prescribes how the homestead shall be alienated. This would be to put in its place a new mode of conveyance and authorize alienation by abandonment. If it cannot be conveyed by deed without her privy examination in solemn form, we confess our inability to understand why in effect it can be alienated by abandonment without her consent. See Woolfolk v. Ricketts, 48 Tex., 37; Dunn v. Tozer, 10 Cal., 171; Cross v. Everts, 28 Tex., 533.

Without undertaking, however, to express any rule absolute upon this subject, we think the charge objectionable (and in this respect it is not supplied by other charges) in not sufficiently instructing the jury upon what would constitute an abandonment of the homestead under the circumstances of this case. Unquestionably, as said by Mr. Justice Moore in Woolfolk v. Rickets (and, indeed, as is said in all the cases in our reports in which the question is discussed), the contemporaneous acts and declarations of the wife to explain the object and purpose of removal from the homestead would be .entitled to great weight. We have not the least hesitation in saying, whatever may be the effect of the ab"senoe of proof, yet that if proof were made indicating that the removal from the homestead was procured by undue influence, or misrepresentation and false promises of return, or assurances that no permanent abandonment was designed, and that with this understanding her removal was effected, that she would not lose her rights in the homestead thereby, nor would that be a sufficient abandonment in contemplation of law, whatever may have been the intention of her husband, and especially when, as in this case, no injury to third, persons resulted therefrom.

The question of abandonment is always a question of intention chiefly. Mrs. Eitz’s testimony went directly to the conclusion that the removal from Whitesboro’ was not intended as a permanent abandonment:- that the family left with the intention of returning; and the effect of the judge’s charge must have been to induce the jury to put out of consideration her statements, and to disregard her acts and intentions in connection with the abandonment of her homestead, as throwing no light upon the subject, and to give undue prominence to the acts and statements of Eitz, and to look to them only in the decision of the question.

The third assignment of error is the refusal of the judge to give the instruction' asked by the defendant’s counsel, to the effect that “though Eitz and wife left the premises with the intention of abandonment if they could sell, that that -would not necessarily constitute an abandonment which, would forfeit their right of exemption. It must be undeniably clear and beyond all reasonable ground of dispute that there has been a total abandonment, with intention not to return and claim the exemption, in order to render the property liable for his debts.”

We think the refusal to give this charge was error. There was some proof about Eitz wishing to sell the property, and without this, the concluding portion of the charge asked, at least, should have been given. It is in the terms repeatedly used by our supreme court in reference to the subject, and was eminently proper to be given in a controversy where the rights of homestead, to which our laws have so tender a regard, were involved. If we are constrained to hold that the old homestead may be lost, without the acquisition of another, by mere abandonment, it ought to be impressed upon the jury that the proof of abandonment must be, to use the language of Chief Justice Hemphill, “ undeniably clear and beyond almost the shadow, at least all reasonable ground, of dispute, that there has been a total abandonment with an intention not to return and claim the exemption.” Gouhenant v. Cockrell, 20 Tex., 96; Shepherd v. Cassiday, 20 Tex., 29.

The remaining assignments relate to the refusal of the Court to grant a new trial and the insufficiency of the evidence.

Without undertaking to discuss at length the testimony, it is sufficient to say that in our judgment it was insufficient ■So Avarrant the finding of the jury. It is unquestioned that the lots sued for were the homestead of Eitz and wife in the spring of 1874, Avhen Eitz went across the river into the Indian Territory. The levy upon them under McLain’s attachment was made in less than a year thereafter. The. only testimony tending to show an abandonment of the homestead, beyond the fact of the mere removal, consists of McLain’s, Cordon’s and Love’s.

McLain testifies to a conversation with Eitz but upon one occasion, Avhen he called to see about his debt, and he ' stayed all night with Eitz in the Nation. What Eitz said then was evidently said in a bad humor, and was a mere loose declaration, perhaps thoughtlessly made, and eagerly caught up by a creditor anxious to make his money and willing to find foundation for an attachment.

Eitz’s remarks to Cordon were made after the levy of the attachment, and his testimony as to his affairs relates also to a period subsequent to the attachment.

Lovm testified to petulant remarks of Eitz that he never intended to return to Texas, but we have no means of knowing. when, or under what circumstances, they were made; whether before or after the levy.

And. on the other side, we have the positive testimony of Eitz, of ..his. wife and of Dr. Kelly, to the object and purpose at .the time of the removal of Eitz from Whitesboro’, showing very conclusively, at least to our minds, that there was no. intention of a permanent abandonment. And there is no testimony which in the least degree tends to establish that Mrs. Eitz bad such intention. McMillan v. Warner, 38 Tex., 410.

We think the court erred in refusing a new trial.

[Opinion delivered May 24, 1880.]

We conclude that there is error in the judgment for which it should be reversed and remanded, and we so award.

Reversed and remanded.


source: Caselaw Access Project

author: Walker, P. J.

license: Public Domain

text:
    Morgan Bagley v. G. J. Spruill.
    (Case No. 3373.)
    1. Judgment bt default — Teem of court changed.— Wheré a defendant was served on the 24th of June, 1876, with citation to appear at a term'of the district court of San Saba county to be held on the fourth Monday after the first Monday in September, 1876, and on the 29th day of July, 1876, the time of holding court in that county was changed, by act of the legislature, to the second Monday in Sepl ember, 1876, to render judgment against him by default September 11, 1876, at a term of court held under the law as changed, was erroneous. Gen. Laws 15th Leg., ch. 67, page 73; Pas. Dig,, art. 1513; id., 1413; Neill v. Brown, 11 Tex., 17.
    Error from San Saba. Tried below before the Hon. W. A. Elaclcburn.
    The opinion sufficiently states the facts.
    Malcemson, Fisher <& Price, for plaintiff in error.

      Abney dk Matthews, for defendant in error.
   Walker, P. J.

Suit by defendant in error against plaints iff in error on promissory notes; petition filed June 19,1876, in the district court of San Saba county, in the seventeenth judicial district. Citation issued same day, and executed by service thereof on defendant on the 24th day of same month, 1876. ■ ‘

Judgment final, by default, was rendered in favor of the plaintiff against the defendant, on the notes sued on, for the sum of $4,518.64, with ten-per cent, interest, and costs of suit. Defendant prosecutes his writ of error, and assigns as error:

L That the court had no jurisdiction over his person in said case.

■2. That the judgment is void, and is a nullity upon its face, for the reason that he was cited to appear at the term of the district court to be held on the fourth Monday after the first Monday in September, 1876, and the judgment was rendered at a term of ttie court which was begun and was holden on the first Monday after the first Monday in September, 1876.

The record shows that the citation served on the defendant notified him to appear on the fourth Monday after the first Monday in September, 1876, and that the term of the district court for said county, at which this judgment was rendered, was begun and held on the 11th day of September, A. D. 1876.

The citation was issued and executed at a time when, according to law, the terms of the district court in the county of San Saba were required to be holden on the fourth Mondays after the first Mondays in March and September. Sec. 17 of ordinance fixing the terms of the district courts of the state of Texas, constitution of 1876.

The time for holding the terms of said court in the county of San Saba was altered by an act of the legislature, which passed and took effect from its enactment on the 29th day of July, 1876, which required said terms to be held on the second Monday in March and September, and might continue in session two weeks. General Laws "of the 16th Leg., civ 67, p. 73.

.The statute which authorizes the rendition of judgments by default (art. 1513, Pascb. Dig.) provides that, . “if the defendant has. been personalty served according to law, ., . and shall fail to answer before the fourth day of the ierra of the court to which he has been cited, the plaintiff . . may have judgment by default.” The authority to render the judgment, therefore, requires that the service of process shall be made according to law, and the failure to answer must occur at the term of the court at which the defendant has been died to appear. In this case he was personally served according to law; for at the time the process issued it was valid, and cited the defendant to appear at the time which the laws then existing, and in full force, required the term of the district court to be held in San Saba county. But before the time arrived for holding said term under that law, a change was made in the times for holding said terms for said county, according to which variation the approaching term was made to begin and to terminate before the day on which the defendant had been cited under the previous law to appear and answer.

The defendant had not been cited to appear and answer at the term which was thus holden.

If the change which was made as to the time of beginning the term had been such as to have included also in the sessions of the court the day specified in the citation for the appearance of the defendant, and to have embraced also the four days succeeding thereto, allowed defendants for filing their pleadings, it might be that judgment by default could properly be rendered on such fourth day for want of an answer, notwithstanding the change in the time for beginning the terms of the court. Where, however, as in this case, the judgment was rendered during a term of the court which had begun and was concluded previous to the day to which the defendant was cited to appear, evidently the judgment was rendered at a term of court to which the defendant had not been dted to appear. The defendant was not served according to law in respect to the term of court which was actually held; he was regularly and legally served, however, at the date at which process issued and was executed in respect to the terms of court under the law as it existed at that date.

To render the citation valid and legal as to the term which was actually held, it must have stated the time of holding the court.” Art. 1431, Pasch. Dig.

In Neill v. Brown, 11 Tex., 17, where an act was passed on the 7th of February, A. D. 1853, to take effect from its passage, by which the time for holding the district court for a certain county was changed from the seventh to the sixth Monday after the first Monday in March, and the citation was issued on the 15th of February, returnable to the seventh Monday after the first Monday- in March, the judgment, which was rendered by default, was reversed, on error. In that case the citation having been issued after the law took effect which made it returnable to a time different to that named in it for holding the court, was held to be itself a nullity; there was no authority at the date of its issuance to cite a party to appear on “ the seventh Monday after,” etc. In that case it was said by the court, as it may also be stated in this, that the defendant had not had a day in court.

[Opinion delivered May 24, 1880.]

The other assignments of error need not be noticed, as we regard the assignments which we have already considered as decisive, and the other points which are made relate merely to the sufficiency of the petition. There was no appearance, answer, nor motion in arrest of judgment, and we will not consider alleged defects in the petition, where facts are alleged which may, by proper amendments hereafter made, render the cause of action complete and unexceptionable. It is sufficient that the plaintiff’s petition affords a sufficient basis upon which to render a judgment upon facts on which a cause of action may be predicated.

We conclude that there "was error in .the judgment, for which it must be reversed and the cause remanded, and shall award accordingly.

Reversed and remanded.


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    Mattie Brown et. al. v. O. J. Meador et al.
    (Case No. 3835.)
    1. Assignment of errors.— An assignment of errors which does not specify the ground of error relied on is insufficient, and a ground of error not specified at all will be considered as waived unless it be so fundamental as that the court would act on it without an assignment of errors. Steen v. The State, 27 Tex., 88; Pendarvis v. ■ Gray, 41 Tex., 330; Carter v. Eames, 44 Tex., 548; Rules of Supreme Court, rule 24.
    2. Limitation — Married woman.— The plaintiff’s mother died in 1862 when the plaintiff was eleven years old. Her father conveyed land belonging to the community estate in 1863. In 1869 the plaintiff married at the age of oyer nineteen years, and in 1878 brought suit for her mother’s interest in the land sold by her father. The land was adversely occupied under her father’s deed for over twelve years before suit was filed. The statute of limitation became operative March 31, 1870, at which time the plaintiff was a married woman and remained under coverture up to the time of filing suit:
    Quaere.— Could she claim the advantage of tacking her disability of coverture to that of minority ? 24 Tex., 599; 18 Tex., 376; 30 Tex., 591; 13 Tex., 597; Demarest v, Winkoop, 3 Johns. Ch., 129; White v. Latimer, 12 Tex., 62.
    Appeal from Navarro. Tried below before the Hon. D. M. Prendergast.
    The opinion states the case.

      Wm. Croft and Hice da McKie, for appellants.

      SimpJdns do SimpJdns, for appellees.
   Walker, P. J.

The. appellants, Mattie Brown and her husband, instituted this suit in the district court of Navarro count}' against the appellees for the recovery of an undivided one-half of a tract of land containing four hundred and eighty-eight and one-fourth acres; which interest in said land Mattie Brown claims to own, in right of inheritance from her mother, who died in August, 1862; alleging that said land was acquired during the marriage of her father and mother; was community property; that her father survived her mother; that defendants hold under conveyances through her father made after the death of her mother; the petition admits that defendants may be entitled to one-half of said land, and plaintiffs pray to be restored to the possession of the other one-half. The defendants pleaded in their answer a general demurrer, general denial, statutes of limitation of three and five years; and answering to the facts, they set up the defense that Mrs. Brown had received from her father’s estate property exceeding in value the community interest of her mother in the lands sold.

The plaintiffs filed a supplemental petition which gave a detailed statement of the property owned by the community estate of her father and mother at the time of the death of the latter, together with an account of her father’s two subsequent marriages, his death, and an account of divers ‘ financial transactions during his life, to show that at the death of the mother there was property belonging to the community, unincumbered xvith debts, amounting to several thousand dollars. That afterxvards he converted said property into other property—became inx'olved, and died oxving $5,000; the petition also alleges in detail many transactions of the deceased father in the acquisition and sales of property from a period before the date of the death of plaintiff’s mother, up to the death of her father, showing the acquisition of property by him, during his marriages xvith his second and third wives; alleges the making of his will, giving to his thiid xvife (Laura E. Brown) all his property for life, with remainder over to plaintiff Mattie Brown; that said Laura E. died afterwards; that the land sued for xvas sold to one Autrey for two slaves, xvho xvere lost to the estate by death or else by the results of the xvar; that at her mother’s death the community owned four grown negroes and two children, xvhich she alleges xvere sold by her father before emancipation took place. It is further alleged that she paid, after his death, several debts of considerable amount. The supplemental petition does not set forth what amounts of money or property she realized from her father’s estate, nor does it deny the specific allegations of the answer, which charge her xvith having received much valuable, enumerated property and sums of money, greatly exceeding in val ue her interest in her mother’s estate. The supplemental petition alleges that said plaintiff has never received any of the community property of her mother or anything in lieu of the same, and says “that what little she has received by virtue of her said father’s will, she would have received any how, if said land sued for had never been sold or had never belonged to her father and mother.” The plaintiff admits that her mother left surviving her as co-heir with her, an infant child, plaintiff’s brother, who died in 1864.

The value of the land at the date of the mother’s death in 1862 was variously estimated in the testimony from $1 per acre, upwards as high as $2 per acre. It was admitted that the will of plaintiff’s father gave her, as a specific bequest, $500, besides her general residuary interest; and the estate never went into the bands of the surviving widow, she dying soon after her husband; the administrator turned the property over to the plaintiff, Mrs. Brown. The evidence shows beyond question that she received from the administrator a considerable amount of property, as is shown by the testimony of the plaintiffs themselves, and also by that of Parish, the administrator; the latter states it in substance, thus: Thirty head of horses worth $450; one stallion worth $250; one hundred and fifty-six acres in Ellis county, which he estimated at $6 per acre, say $936; cows and calves, $50; wagon and horses, $200; bouse and lot in Corsicana, $400, and $280 in cash; aggregate $2,366. Against which,-it is claimed by the appellant, that she and her husband paid certain debts against the estate.

The inheritable interest of the plaintiff was one-half of the mother’s interest in the land, her infant brother inheriting with her the other half thereof. At her brother’s death she inherited, jointly with her father, his interest, thus giving to her three-eighths interest in the whole tract, which being estimated at $1 per acre would amount to about $183; estimating it at $1.50 per acre would amount to about $274, without calculating interest in her favor.

In view of the whole evidence, which we will not state, nor even attempt to consider with any view to the ascertainment of exact results as to the balances on either side, it is sufficient to say that the evidence before the court was of that character which warranted it in determining the merits of the case under the issue presented by the answer, which set up the equitable defense that the plaintiff had obtained from her father’s estate a full equivalent for the' interest which she had inherited from her mother. The judgment of the court, to whom the case -was submitted ■ without a jury, was general upon a hearing of all the evidence. There was no motion for new trial, and the only assignment of error which the record enables us to notice isas follows, viz.: The court erred in rendering judgment for the defendants, in this, that the court found for the defendants under their plea of the statute of limitations of- five years.”

It does not by any means appear, in any shape whatever, from the record, that the judgment of the court was necessarily in any wise influenced by the plea referred to. There was no bill of exceptions taken to show any fact connected with the rendition of the judgment beyond that which is disclosed by a judgment which was entered quite in the-usual form, reciting the appearance of the parties, the waiver of a jury, the submission to the court of the cause “upon the evidence and law, and the-court having fully considered the same, and it appearing to the court that the defendants ought to recover,” etc., and thereupon proceeding to render a formal and final judgment in the premises in accordance with the conclusion' stated. ° There was evidence before the court upon the equitable defense which has been stated, as well as evidence in support of-the plea of the statute of limitations, upon both or either of which defenses the judgment might well-have been based; and, therefore, if, under the evidence and the law applicable to the latter defense, we would determine that the judgment could not be supported, and that a judgment in favor of defendants, based upon that plea, was erroneous, we could not, nevertheless, affirm, from the record before -us, that this judgment was rendered, by-the court upon said plea, and was founded upon it. To enable us to do so, it must appear directly from the record as a fact that the court did thus render its judgment upon said plea, or else the evidence must be of such a character as to lead to the conclusion that the court must, necessarily, have disregarded all other issues than that which was presented by the plea of the statute.

This assignment, standing alone as the only objection which is made to the judgment, contains the implication that, under said plea, a judgment for the defendants would have been, under the law and evidence, erroneous, and that, if it was not based upon that defense, the judgment is not otherwise complained of, nor objected to. For the reasons given, we conclude that the assignment is not supported by the record, and that it does not appear “ that the court found for the defendants, under their plea of the statute of limitations of five years,” and we are not, therefore, referred by the appellant’s assignment of errors, to any alleged specific error of which he complains; he certainly complains in no respect of the judgment, according to the terms of the assignment, unless the court found against them on the plea of the statute.

“The assignment of errors must distinctly specify the grounds of error relied on, and a ground of error not distinctly specified, in reference to that which is shown in the record, or not specified at all, shall be considered as waived unless it be so fundamental as that the court would act upon it without an assignment of errors, as mentioned in rule 23.” Rules of Supreme Court, rule 24; Steen v. The State, 27 Tex., 88; Pendarvis v. Gray, 41 Tex., 330; Carter v. Eames, 44 Tex., 548.

It is not necessary to determine whether the plea of the statute of limitations was or was not maintainable under the facts of this case; all of which that bore upon the issue were plain and uncontroverted; my own view of the subject inclines me to the opinion that the plaintiffs were barred of their action at the date of its institution. The defendant, Meador, has been in possession, using, cultivating, enjoying and paying taxes on the land since August, 1865, under a deed duly recorded, up to the date of bringing the suit on March 20, 1878. The plaintiff’s mother died in August, 1862, at which time she, Mrs. Brown, was eleven years old; her father conveyed the land in 1863 to one Autrey, through whom, by mesne conveyances, the defendants possess and claim under deeds made during the year last named. Mrs. Brown married on the 28th day of March, I860, at the age of over nineteen years. The defendants proved adverse possession, under deeds duly recorded, during a period of more than twelve years. The right of action existed in 1863, and it was not at any time suspended nor abridged under the law; but the operation of the statutes of limitations were suspended until March 31, 1870. During all, or nearly all, that period of time, Mrs. Brown was a minor in years, but by marriage, when that event transpired, thenceforth became, in law, an adult for all purposes, as has been decided again and again. 24 Tex., 599; 18 Tex., 376.

If the statute of limitations began to run against her at any time up to the date of the institution of the suit, it was necessarily at the date of her marriage; clearly it could not have begun earlier, for she was a minor, and it is insisted in argument that it could not have begun later, for afterwards she was under the disability of coverture. But did it begin to-run at the time of her marriage? If disabilities of minority and marriage can be tacked to each other, by reason of the suspension of the operation of the laws of limitations, during the happening of the merger of such disabilities, in such case it must result that the statute has not yet begun to run against the plaintiff; otherwise, however, the statute would start into force and apply to the plaintiff on the 31st of March, 1870, when it went into general effect upon the rights of all citizens alike. My own opinion is, that the statute then began to run against the plaintiff, Mrs. Brown; that as soon as she married she became subject to the rules and principles governing the statutes of limitation, and as soon as they became operative by law, that she would be subject to them, and that, therefore, she could not claim-the advantage of tacking her disability of coverture to that of her minority. 30 Tex., 591; 13 Tex., 597; 12 Tex., 61.

[Opinion delivered May 24, 1880.]

The rule that disabilities cannot be tacked is rested by all the authorities upon the reason that the protection given by the statute is only meant to be extended to such disabilities as exist when the right of action first accrued. Demarest v. Winkoop, 3 Johns. Ch., 129. “ That successive or cumulative disabilities are not within the policy or sound construction "of the statute,” see White v. Latimer, 12 Tex., 62, and the authorities cited.

From the date of marriage of the plaintiffs, more than nine years had elapsed before the institution of suit, and eight years had elapsed after the statute of limitations had resumed their normal action.

We rest our determination, however, of this ease, upon the grounds discussed under the assignment of error, and not upon our views of the proper application of the rules of law to the defense of the statute of limitations. I have taken occasion thus, incidentally, and perhaps unnecessarily, to express merely my own individual opinion on the question concerning which the appellant suggests that the district judge erred in his judgment. If he construed the facts as being decisive against the right of plaintiffs to recover against the defense of the statute, I think he was right.

We are of opinion that there is no error in the judgment of the district court, and that it ought to be affirmed.

Aeeibmed.


author: A. S. Walkeb, J.

text:
    W. H. Lee v. W. G. & J. B. Wilkins.
    (Case No. 3497.)
    1. Reconvention.—In a suit on a promissory note, the defendant may plead in reoonvention matters of which the note formed a part, and by which damages are alleged to have been inflicted upon him by the plaintiff.

      3. Pleadings — Amendment — Limitation.— An amendment to a plea in reconvention, which begins: “And now come the defendants, and by leave of the court, amending their pleadings, withdraw their answer and plea in. re-convention, heretofore by them pleaded.” . . . “And defendants, now answering plaintiff’s petition, say that they admit the execution of the note, to recover which this suit is brought,” followed by a restatement of the plea withdrawn, with the addition of some facts, is not a new plea, and limitation does not apply as if the pleading had been first filed as of the date of filing the amendment.
    3 Evidence — Partial transcript.— A partial transcript of proceedings in a suit is admissible in evidence where the entire transcript would be admitted. 39 Tex., 737; 9 Tex., 300.
    4. Practice — Inadmissible evidence.—Permitting a party to read in evidence, over objection, questions and answers in the depositions of a witness, as follows: “ Can you give an estimate of the pecuniary damage which the defendants sustained by reason of the said attachment proceedings?” Ans. “That is rather a difficult question to answer. Merely as a matter of opinion as a business man, I should say that their pecuniary injury up to this time, as a result of the said proceedings, was not less than §25,000 currency,” was erroneous. 50 Tex., 104.
    5. Charge of the court — Set-off and reconvention.—A charge of . the court in a suit on a note where damages for suing out an attachment are pleaded in reconvention, which instructs the jury that “ The plaintiff is entitled to recover the amount of the note sued on, and interest, which is to be offset by such damages (if any) as maybe awarded by the jury to the defendants under their plea in reconvention,” is erroneous, because confounding the right of set-off-with the plea in reconvention.
    6. Charge on weight of evidence,— Instructing the jury that “ Any settlement or compromise between the parties after the levy of attachment would be binding to the extent of such settlement and compromise, but the giving the note sued on and the payment of the §600 by the defendants would not release the damages claimed by them in this suit, unless they were expressly and unequivocally released by the defendants, and the burden of showing such release is on the plaintiff,” is improper, because a charge upon the weight of evidence, and for the reason that no such degree of certainty is required by law in civil cases.
    7. Attachment — Damages for wrongful issuance.— Damages for the wrongful suing out of an attachment are limited to the natural and proximate result or consequence of the attachment.
    S. Attachment, when wrongful,—An attachment is wrongfully sued out when issued against a partnership for an individual debt of one of the members, instead of the interest of the partner in the firm property.
    9. Damages — Principal liable for acts of the agent.—A principal is not liable for his agent’s malice, but is liable for actual . damages for the acts of his agent in wrongfully suing out an attachment.
    10. Damages fob attorney’s mistake.—The mistake of an attorney in instituting attachment proceedings will subject his client to damages for wrongfully suing out the attachment, but will not form a basis for exemplary damages.
    11. Paying note to Confederate States’ receiver.—Payments made during the war to Confederate States receivers under the Confederate States sequestration laws were only voluntarily made and not enforced beyond current interest, and could not affect the rights of the owner of a note so paid to any extent be- • yond such interest.
    Error from Washington. Tried below before the Hon. I. B. McFarland.
    May 12, 1873, Lee brought suit on a promissory note executed by defendants for $800, September 26, 1872, and due six months thereafter.
    May 24, 1873, defendants answered, pleading payment; want of consideration; in reconvention that they in August, 1872, were merchants in good standing and credit, doing a good business in Washington county, Texas, and that they had bought in Hew York city a large stock, $30,000 worth, of goods; that said goods, or about $10,000 worth thereof, were seized under attachment proceedings instigated and begun by Lee; the seizure being wrongful, and the proceedings malicious; damages, $50,000special damages also alleged— attorney fees, costs, depreciation of goods in value, or that the note sued on was made to relieve said goods from seizure, and that to obtain the release of said goods from .such seizure, defendants had paid to Lee $600; and had made the note sued on; prayer to cancel the note, recovery of the $600 paid, and for damages, etc.
    March 13, 1874, plaintiff amended, giving a history of the transactions pleaded in reconvention; that in 1860 James A. Wilkins, W. G-. Wilkins and J. B. W ilkins were partners in business in Bren ham under the name “ Wilkins & Bro.,” and as such being indebted for merchandise purchased of Emerson, Brewster & Co., of Mew York, executed to them February 7, 1860, their promissory note for $1,200.65, and due twelve months thereafter'; that at commencement of the war the note was left with McMahon & Gilbert, and by them delivered to W. P. Ballinger, a Confederate States receiver, and was confiscated, etc.; that Movember 3, 1863, Emerson, Brewster & Co. having failed, their assets were sold by their assignee, and in such sale the said note on “ Wilkins & Bro.” was bought by plaintiff; that plaintiff had made many efforts to collect it — non-payment; that since the war the makers had proposed to plaintiff a compromise of twenty-five cents on the face thereof, which he refused, asking fifty cents per dollar. That in 1872 plaintiff brought an attachment suit in one of the courts in Mew York city, and caused seizure of property of W. G. & J. B. Wilkins; that while said property was in custody plaintiff received a letter, of date September 11,1872, from W. G. Wilkins, asking a compromise to this; and September 20th plaintiff telegraphed in answer: “Face of claim and costs; half cash, half indorsed note, approved, six months.” To which September 24th plaintiff received reply by telegram—an acceptance. That through Bassett & Éassett, bankers, the cash was paid, and the note sued on executed; and that plaintiff accepted the same, thinking the note secured, and at once released the levy upon the goods; and on receiving the money and note plaintiff dismissed his suit and canceled his debt against Wilkins & Bro., all of which was done in good faith; arid that this was agreed to be and was a settlement of all matters growing out of the note on Wilkins & Bro., the attachment suit and the levy of the attachment. . . . That relying on the good faith of defendants, he compromised; said compromise was intended to and did include all matters of difference between plaintiff and defendants. That the note was executed as part of said compromise; . . . plaintiff specially denied malice in bringing the attachment suit, or in levying on the property of defendant as aforesaid, or that he had any other motive than a desire to collect what was honestly due him, etc.

      September 28, 1874, defendants amended — the amendment beginning as follows: “And now come the defendants, and by leave of the court amending their pleadings, withdraw their answer and plea in reconvention heretofore by them pleaded.”
    “ And defendants now answering plaintiff’s petition, say that they admit the execution of the note, to recover which this suit is brought.”
    Then follows a restatement of the plea in reconvention, with addition of some facts pleaded in aggravation; damages at §100,000. (The details in some parts of the plea will be noted.)
    October 6, 1874, plaintiff excepted to the plea in reconvention ; replied by general denial and plea of limitation of two years.
    October 6th defendants amended, alleging that Lee, the plaintiff, is a resident of the state of Hew York, and had not been in the state of Texas within two years.
    Same day plaintiff applied for a continuance. The defendants withdrew parts of their allegations in plea filed September 28th, and the application was thereupon overruled.
    The court allowed to defendants the right to open and conclude.
    The facts as contained in eighty-six pages of the transcript, in substance, show: Affidavit for attachment by Jas. Holliday, agent, on account, $1,160.05, and interest from August 7, I860, for goods, etc., sold by Emerson, Brewster & Co. to Wilkins Bros., February 7, 1860; that said claim had been sold October 8, 1863, to plaintiff, in suit by W. H. Lee v, W. G. & J. B. Wilkins; attachment bond and writ in said suit are of date August 23, 1873. It was shown that, under the attachment, twelve cases of goods of W. G. & J. B. Will-kins had been seized, in value estimated from $3,000 to $10,000.
    Witness Dulaney, for defendants, testified that previous to the attachment Wilkins & Wilkins were in good standing in Hew York — had good credit; that the stock purchased and seized was paints, oils,'hardware, dry goods and general merchandise; that effect of the seizure was to ruin their credit. Over objection was asked, “ Can you give an estimate of the pecuniary injury which the defendants sustained by reason of the said attachment proceedings?” Ans. (over objection). “That is rather a difficult question to answer. Merely as a matter of opinion, as a business man, I should say that their pecuniary injury up to this time, as a result of the said proceedings, was not less than $25,000 currency.”
    Hugh Haynie testified to great injury likely to result from such proceedings. He was a drummer for a Hew York house, engaged in Texas trade.
    Jas. Haynie, drummer for Hew Orleans house, in Texas, testified to internal workings of mercantile agencies in disseminating news of failures, etc.
    Jas. A. Wilkins testified that defendant, Jno. B. Wilkins, was not a member of Wilkins & Bro. in 1859-1861; at latter date was seventeen years old. Witness, Jas. A. Wilkins, and W. G. Wilkins composed that firm, and gave a note to Emerson, Brewster & Co. for $1,200.05 in 18.59, for goods. That the note was confiscated by the Confederate States; in 1864 he paid the notes in Confederate money to J. D. Giddings, Confederate States receiver, and took up the note and still has it. In 1866 he" was in Hew York and requested J. M. Ward well to see plaintiff Lee and offer him a compromise on said note, which Mr. Lee declined. After the war W. G. & J. B. Wilkins went into business on their own account, and witness on his account.

      Cross-examination: In 1872 witness failed, and made an assignment for benefit of creditors with W. H. Thacker, assignee.
    Defendant W. G. Wilkins testified as to old firm “Wilkins Bros.,” same as J. A. Wilkins, and continued: We (witness and J. B. Wilkins) were in business together in 1872; were in habit of buying from $30,000 to $50,000 worth of goods per year. Profits were about twenty-five per cent. I was in Hew York in August, 1872; had just bought about $30,000 worth of goods for firm and come home.
    After I left for home, about $10,000 worth of the goods were attached and detained about sixty days. When they reached Brenham, the season was far advanced; goods unsalable and depreciated in value not less than $5,000. Our business was broken up by the attachment in Yew York. Prior to that time we could buy all the goods we desired at Yew York. Our credit was good. We bad to quit business, and did quit in fall of 1872, after the levy. Other creditors came down on us in consequence. One began proceedings in bankruptcy against us and we were compelled to pay the debt and costs in full, but also his attorneys’ fees, $300, for filing the petition. Both witness and J. B. Wilkins were bred as merchants; . . . paid Sayles & Bassett’s $1,000 fee; paid $400 costs to Lee-; spent $350 telegraphing and traveling expenses.

      Gross-examination: I suppose our credit was ruined in Yew York. I was told by merchants with whom we had dealt that it would be useless to apply for credit, and we have not tried, to get anything on credit since the levy. (Witness gave list of his debts secured by mortgages, and of debts and of assets.) “ Think we could have worked out; could not say we were solvent August 1, 1872. Yobody else pressed us till after the levy of the attachment. We afterwards sold out at cost in store in Brenham less ten per cent., on six, twelve and eighteen months’ time. We compromised with our creditors at sixty cents per dollar, and paid them in the paper received for the goods, and they released us. Have not gone into business since. . .
    J. D. G-iddings testified: “Am an attorney; testified as to attorney fees, that $250 would be reasonable in releasing the attachment. . . . The defendants had an open account at my bank prior to 1872. In August, I believe we had a deed of trust to secure us; but their credit was not limited to the value of the property covered by it.”
    J efferson Bassett, banker: “ Knew defendants did a large business; often had their commercial paper for collection. They generally paid promptly; had good credit with witness ; let them have money when they wanted it; considered their credit good prior to the levy in 1872. The levy injured their credit as merchants and business men.”

      Gross-examination: Sometimes their paper was not paid; in such cases it was renewed and extended. Heard their solvency talked about prior to the levy as other business men’s solvency was talked about.
    The plaintiff, Lee, testified: Witness on October 8, 1863, bought of assignee of Emerson, Brewster & Co., a promissory note for $1,200.05, of date February 7,1860, due twelve months, signed “Wilkins & Bro.” The note, copy of which was produced, was in hands of McMahon & Gilbert, Galveston, Texas. In winter of 1866, J. M. Ward well called on me and stated he was authorized .to settle the claim at twenty-five per cent.; I declined, asking fifty per cent.; had made no settlement of the claim before the attachment. „ . . I placed it in the hands of an attorney here, who commenced an action about August 1,1872, against Wilkins, to secure the amount of said note, and caused an attachment to issue against the goods of W. G. & J. B. Wilkins. Witness exhibited to his testimony a letter wrij^en to him by W. G. Wilkins, about September 20, 1872, relating to the matter of the attachment and the debt, and his efforts to settle old debts, closing as follows: “ I ask you to be generous with me, and let me know by telegraph the best offer you can or are willing to make.”
    Witness answered by telegram: “Face of claim and costs; half cash, half indorsed note, approved, six months.”
    There was correspondence between Bassett & Bassett touching the money. The goods, twelve cases, were released 27th September, and reached Brenham 7th October, 1872.
    The note sued on, executed September 26, 1872, with the cash, was then forwarded to plaintiff.
    On cross-examination, plaintiff substantially stated he placed the note for $1,200 in the hands of an attorney, authorized to collect the debt any way he could. The goods were kept until 26th or 27th September. The marshal who seized them valued them at $3,000. The goods were released upon being notified of payment of $600 and making note, etc.
    M. Bunker, for plaintiff, testified: Am of firm of Benedict, Hall & Go.; knew W. G. and J. B. Wilkins; our firm used to sell goods to them; did not do so in August, 1872. “My firm refused to sell them, as they were not prompt in paying their bills, and on referring to other merchants they gave some reports that they were behind in their payment ; ” would not have sold them on credit; refused to sell to them, because they had not paid promptly, and it was reported that they were behind with other houses; their credit was not affected by the attachment, as they were behind in payments and not considered prompt. An attachment of itself would not impair their credit, if in good standing and credit; would not affect credit unless house was behind and not in good credit; the attachment was not the cause of failure; judge that they were not in sound condition. ...
    James Holladay, book-keeper, testified that he made the affidavit for attachment, at request of attorney. The copy of note is from books of Emerson, Brewster & Co., which note had not been paid; information from the books, etc.
    J. ÍL Ward well, witness, was asked to call on Lee to settle a note for $1,200 to Emerson, Brewster & Co., and then owned by Lee; offered in behalf of Wilkins & Bro. twenty-five per cent., being so authorized by James A. Wilkins. Lee would not take less than fifty per cent.

      Cross-examination: Witness stated that in 1872 W. G. & J. B. Wilkins did not stand very high in credit; their credit was fair; they were not considered prompt; it was considered they speculated too much; think they could have bought goods on credit after the attachment, etc.; Lee is a man of wealth and character; James A. Wilkins authorized me to call on Lee, but I acted for Wilkins & Bro., and so stated to Lee; J. A. Wilkins requested me at Merchants’ Hotel in winter of 1866; he was sick and asked me to attend to their claims; J. A. Wilkins did not tell me the note had been paid, and was in his hands; on the contrary, he told me Wilkins & Bro. owed the debt and wanted me to settle it with William H. Lee.
    In the statement of facts was inserted letter of Lee to defendants, of date September 3, 1872, notifying them of the. attachment, etc., as follows:

      “Dear Sir: I presume by this time you have heard that I have attached your interest in all the goods you lately purchased here. As I wish to deal fairly and openly with you, I think it as well to explain to you the position you are now in.

      “ If the debt is not settled, of course we shall be compelled to sell your goods; by doing which, I shall be compelled to put you to unnecessary trouble and expense, for the marshal and attorney fees must first come out of the proceeds of the sale before one cent can be applied to liquidate the debt. These charges will amount to $300 or $400, which will be a dead loss to you and no gain to me; it simply goes to enrich the lawyer and the sheriff. Now, all I want is to have my debt paid. By your not paying it, you see you lose from $200 to $400, and the debt remains as large as ever. I am advised you are well able to pay it, and am surprised I have not heard from you in reference to it before this. You must not think I have attached these goods for the purpose of giving you trouble. I have been ten years trying to collect this debt, and have pursued this course as the only one left to me.
    “I have now acted fairly and openly with you; do you look at this matter in the same light, and we may yet come to a settlement. Let me hear from you at your early convenience» as I do not wish to sacrifice your goods for nothing.
    “Tours respectfully,
    “W. H. Lee,
    “Per W. H. Walker.
    “Mr. W. G-. Wilkins, Brenham, Texas.”
    (To this letter Wilkins replied, noticed above, resulting in the transactions releasing the goods.)
    W. H. Thacker testified: On September 14, 1872, J. A. Wilkins made an assignment to witness for the benefit of his creditors; that one of the claims provided for in such assignment is a claim for $2,313.72, as follows: “W. Gr. Wilkins, Brenham, on assumpsit, to Emerson, Brewster & Co., $2,313.72; ” which claim is owned and held by W. Gr. Wilkins. Witness has paid on this claim a pro rata of sixteen per cent., and holds assets probably sufficient to increase the payment to twenty per cent. Witness was cashier of Breedlove & Chadwick’s bank in 1872. Knew a good deal of the financial standing of W. G. & J. B. Wilkins in 1871 and 1872. In summer of 1872 heard their solvency discussed. Monied men considered them shaky.
    Geo. Seward testified: Was formerly a merchant in Brenham; heard the solvency of W. G. & J. B. Wilkins discussed in 1872. Heard several persons from the country around, and some in town, doubt, their being able to continue in business much longer.
    0. 0. Herring testified: Is cashier of Giddings & Giddings’ bank. Knew a good deal of the condition of the business of W. G. & J. B. Wilkins in 1872. . . . Knew they were hard up and borrowing all the money they could get at two and one-half per cent, per month. Heard their solvency discussed, and heard it doubted by several persons.
    The charge of the court is noticed, so far as necessary, in the opinion. Many instructions were asked by the plaintiff and refused.
    The jury returned a verdict as follows:
    “We, the jury, find that the attachment was wrongfully sued out, and that the defendants were actually damaged in the sum of $5,250 less the note, with interest, $898.66, leaving $4,351.34. And that, in addition to it being wrongfully done, that it was maliciously done, without a due regard for the rights of others, and assess the damages at $10,000.”
    Upon which verdict judgment was entered for the defendants for $14,351.34, and costs of suit.
    A motion for a new trial was made, for the rulings of the court, and because verdict was unsupported, etc. By amended motion, supported by affidavit, new testimony was shown as material, being additional transcript in the suit in Hew York of W. H. Lee v. Wilkins & Bro., in which it was " shown that, by proceedings had in the suit, the mistake in the name of the defendant, J. B. Wilkins, had been corrected throughout the proceedings, thus making the suit by Lee v. W. G. & J. A. Wilkins, who really formed that firm; that affiant did not know it at the trial.

      The motion was overruled. An appeal was dismissed and the plaintiff brought the case for revision by writ of error, assigning as errors:
    1. The court erred in its ruling (1) upon plaintiff’s exceptions to the plea of reconvention and (2) upon "the plea of limitations.
    2. Error in admitting illegal testimony. (1) The partial transcript of the attachment proceedings. (2) The testimony (as to opinion) of witness Dulaney.
    3. In the charge to the jury, especially clauses 2, 3, 5, 10, 11, 12 and 13.
    4. In refusing all the charges asked by plaintiff.
    5 and 6. Verdict was contrary to the law and evidence.
    7. Error in giving the opening and conclusion of the argument to defendants.
    8. Overruling motion for new trial.
    9. Overruling motion in arrest of judgment; upon alleged insufficiency of the verdict.

      Breedlove & Ewing, for plaintiff in error.

      Sayles <6 Bassett, for defendants in error.
   A. S. Walkeb, J.

1. The plea in reconvention set up matters, of which the note sued on formed a part, and by which damages are alleged to have been inflicted by plaintiff upon defendants. The acts so pleaded are necessarily connected with the note sued on. The exceptions to the plea were properly overruled.

2. The amendment of 28th September, 1874, cannot be regarded as interposing in fact a new plea. It is an amendment omitting a part of the former answer, repeating the substance of other parts, adding circumstances and details. The main facts are the same in the plea of reconvention as amended as in the original. There was no point of time since its original filing when the plea was not on file. That the words prefacing the statements in it admit of a construction different from the actual facts should not give to the amendment the effect, as we think, of affording the benefit of limitation against the plea as if filed on that day.

3. That only a partial transcript of the attachment proceedings in case of W. H. Lee v. Wilkins & Bro., or W. G. & J. B. Wilkins, was produced, was not a reason for its rejection as evidence. The use of duly certified transcripts of parts of proceedings had in the same estate in the probate courts has been sanctioned. Guilford v. Love, 49 Tex., 727; Townsend v. Munger, 9 Tex., 300. The reasoning, in these cases is general, and applies with equal force to the testimony offered and admitted in this case.

4. The bill of exceptions shows that objections were made to questions and answers in the depositions of the witness Dulaney; the more important is the tenth: “Oan you give an estimate of the pecuniary injury which the defendants sustained by reason of the said attachment proceedings?” Ans. “That is rather a difficult question to answer. Merely as a matter of opinion as a business man, I should say that their pecuniary injury up to this time as a result of the said proceedings was not less than $25,000 currency.” It appears that objections to the question were overruled and the answer was then read. “ The court then remarked that‘the answer was not proper testimony.’ Ho further notice of the matter was taken by the parties, and the evidence was not withdrawn from the jury further than was implied in the remark of the court.”

This is the condition most favorable to the defendants. The evidence was not admissible. The objections to the question should have been sustained. The answer was read as evidence, and no caution was given to the jury by the court to correct its effect, nor does it appear that the remark by the judge was made in hearing of the jury. The admission of the answer was error and its effect was nob corrected. Clardy v. Callicoate, 24 Tex., 170, and cases cited; Hunt v. Riley, 50 Tex., 104; Wharton on Evidence, sec. 509.

5. Several of the instructions given by the court are subject to criticism.

The third paragraph shows a confusion of ideas — confounding the right of set-off with the plea in reconvention. “The plaintiff is entitled to recover the amount of the note sued on and interest, which is to be offset by such damages (if any) as may be awarded by the jury to the defendants under their plea in reconvention.” Had such been the legal effect of the plea it should have been set aside on the demurrer of the plaintiff to it. The plea in reconvention extended to and explained the consideration of the note; and while in reaching results the jury may have taken some such process in their labor, it was not a matter of law upon which they should have been instructed. Pas. Dig., 3447.

6. The fifth charge of the court we think was properly given, unless, perhaps, the damages should have been limited to the “ natural and proximate result or consequence ” of the attachment. Drake on Att., § 175. The charge was: “ If the attachment complained of was wrongfully sued out, the defendants are entitled to recover such actual damages as the proof shows they suffered in consequence thereof.” The unlimited consequences as constituting the matters upon "which damages should be computed may have injured the plaintiff.

7. The tenth charge, and which is assigned as error, is as follows: “If you believe from the evidence that the attachment was issued against W. G-. & John B. Wilkins, on a debt due by James A. Wilkins & W. G. Wilkins, then the attachment was wrongfully sued out.”

This charge is warranted by the pleadings and the evidence, and we think it correct and the law in such case. The other hypothesis, that the suit was properly brought and the attachment ran against the interest of W. G. Wilkins, may have been given. The testimony actually before the jury was not sufficiently explicit to render the failure to submit this erroneous.

8. The eleventh charge is: “A party is bound by the acts of his agent, and more especially so if, after full information, he approves or ratifies the acts of his agent or fails to repudiate.” This, as a general proposition, is law. In this case it was liable to be applied to the injury of plaintiff, unless it had been modified by the explanation; and that the natural result of such liability ivas only for the wrongful act and not for malice of the agent. Wallace v. Finberg, 46 Tex., 50, and cases cited. The evidence as to the agency is that the claim was placed in the hands of the attorney for collection, with authority to collect. There is no evidence ofW.H. Lee’s actual knowledge of the errors and mistakes of the attorney.

9. The twelfth charge asked, relating to the existence, etc., of a settlement, is as follows:

“ Any settlement or compromise between the parties after the levy of attachment would be binding to the extent of such settlement and compromise; but the giving the note sued on, and the payment of the $600 by the defendants, would not release the damages claimed by them in this suit, unless they were expressly and unequivocally released by the defendants; and the burden of showing such release is on the plaintiff.”

The statute requires that the judge “ shall frame his charge so as to submit questions of fact solely to the decision of the jury.” “ He shall not in any case charge or comment on the weight of evidence.” Pas. Dig., 1465. It was a question of fact whether there had been a settlement or compromise. It was proper that that fact should be submitted to the jury. That the note on its face was not a release of damages was properly enough told the jury, if it had been so given. But that the giving of the note sued on and the payment of the $600 by the defendants, under the facts in evidence, was or not a release, or whether the transaction was a settlement, was a question of fact, and a most material issue. The court therefore encroached upon the work of the jury when they were told that they “ would not release the damages claimed.” Besides the jury were instructed that the burden of showing" a release of the damages, expressly or unequivocally made, was upon the plaintiff. Whether the emphatic words, “expressly and unequivocally,” be applied to the quantity of proof, or the mode of showing the release, or to the terms of a contract for release (for they may apply to either), they apply to the work of the jury a degree of certainty not required by the law in civil cases. The release could be proven, as any other fact, with reasonable certainty and with preponderance in testimony. This instruction was erroneous, and likely to injure the plaintiff.

10. The thirteenth charge is only subject to the criticism urged against the third. It cannot be regarded as having been injurious to plaintiff.

11. The fourth assignment of errors is the general one that the court erred in refusing the charges asked by the plaintiff. The instructions were numerous. The third and Eighth ought to have been given as explanatory of the corresponding charges given. It may have been proper to have given the ninth, relating to payments made during the war to Confederate States receivers. Such payments under the Confederate States sequestration law were only voluntarily made, not enforced beyond current interest, and could not affect the right of the owner to any extent beyond such interest, even allowing to the Confederate States sequestration proceedings all the validity that could be claimed for them. Simpson v. Foster, 46 Tex., 623.

12. The fifth, sixth and eighth errors question the propriety of the verdict under the law and evidence.

The statement of facts shows that Lee was the holder and recognized owner of a debt on Wilkins & Bro.; that one of the members of the firm had sought to compromise it with him since the war; that the same member of the firm, in his assignment for the benefit of his own creditors, provided for the payment of this debt in the hands of W. G-. Wilkins, one of the defendants in this suit. This must either have recognized W. G. Wilkins’ ownership in the Emerson, Brewster & Co. debt or was an attempt to provide funds in his hands for its settlement. (This repudiated any ownership through the Confederate States receiver proceedings, as J. A. Wilkins himself had paid (biddings and had taken up the note.)

The claim had been placed in the hands of an attorney by plaintiff at Hew York for collection; there was property in Hew York of W. G-. Wilkins subject to attachment; the attorney took proceedings for the purpose, but by some carelessness did not set out the full amount in his suit, nor obtain the full names of the firm of Wilkins & Bro.; attachment was issued and levied upon property, one-half interest in which was subject to the attachment if regularly sued out. The amount in value of the goods seized are stated by one at $3,000 and by another at about $10,000. On the seizure plaintiff wrote to the defendant W. G-. Wilkins of the attachment, the costs likely to be incurred, and suggesting settlement; to this defendant replied stating his efforts to settle the old debts of the firm of Wilkins & Bro. and asking a reduction, etc. To this the plaintiff responded, making a reduction of about fifty per cent, of the amount actually due, half cash, balance on time. This was accepted, and the release of the goods was to follow; the money and note did not leave Brenham until the goods reached the de-,. fendants. They had been seized the 23d of August, 1872, and were released September 27, and actually reached defendants October 7, 1872. The defendant W. Gr. Wilkins, who-had advanced the money, was at once or had already been provided for by J. A. Wilkins among his creditors, and from which twenty per cent, appear to have been realized.

The plaintiff in his letter expressed his intent as not to injure defendant but to obtain his debt; his settlement does not contradict his statement. The mistake of his attorney in the attachment proceedings, while subjecting defendants to damages for the wrongful suing out the attachment, should not form the basis of exemplary damages. For the payment and note, defendant W. Gr. Wilkins had his goods released, and his old debt, for about double the amount paid, canceled.

To the extent of exemplary damages we think the verdict not sustained by testimony.

13. The motion for new trial, while showing material testimony, does not excuse want of diligence. The testimony of the complete record in the attachment proceedings might not correct the effect of the seizure as wrongful, yet it would show that the purpose was to pursue the real parties and to subject such property only as would be liable to seizure under the amended proceedings and writ. It might be of importance on questions of exemplary damages.

[Opinion delivered May 24, 1880.]

14. The subject of practice in regard to the right to open and close has been discussed in cases from the same district court, and reference is made to the case of Franklin v. Smith et al.

For the error in the admission of the testimony in allowing witness Dulaney to give his opinion as to the amount of damages, the errors in the charges of the court noticed above, and because the verdict as to vindictive damages is not supported by the testimony, the judgment below should be reversed.

Beversed and remanded.


author: A. S. Walker, J.

text:
    P. J. Willis & Bro. v. D. V. Kirbie.
    (Case No. 3037.)
    1. Evidence — Practice.— When offered on other issues, it is not error to exclude testimony as to facts relied on in a special plea, to which exceptions have been sustained.
    2. Charge of the court.—Where erroneous charges have been given the judgment will be reversed, though the testimony may have been sufficient to support the verdict had the issues been properly submitted.
    3. Homestead — Judgment creditor. — The holder of a mortgage has a right to release, in exchange for the homestead of the mortgagor, his lien on property covered by his mortgage, and will take, as against a judgment creditor of the mortgagor, a perfect title to the homestead.
    Appeal from Parker. Tried below before the Hon. A. J. Hood.
    September 11, 1874, Kirbie sued W. H. Graves in trespass to try title for several improved town lots in the town of Weatherford. The petition set' out that plaintiff had obtained a judgment February 6, 1874, in the district court of Parker county against A. S. Fain; that the minutes book of the court had been destroyed by fire; and that June 5, 1874, at a regular term of the court, the judgment had been regularly substituted; that execution had issued thereon July 9th, thereafter, and sale by the sheriff under the judgment and execution, August 4, 1874, and purchase of said lots and deed therefor by the sheriff to plaintiff; and that said lots were the property of Fain and subject to execution. Value of rents alleged; prayer for possession, damages and costs. -
    P. J. Willis & Bro., at their own instance, became defendants as the landlords of Graves, and conducted the suit.
    They pleaded not guilty; specially a defense (hereafter set out) setting up a parol agreement for an exchange of securities between Fain and the defendants, whereby they claimed to have a prior lien on the lots; and that the lots were the homestead of Fain and wife from 1867, and up to June 3, 1874, when they had conveyed the same by warranty deed to defendants. The defendants had Fain and wife made parties.
    The testimony was, on part of the plaintiff, the transcript of the judgment and execution as alleged, and the sheriff’s deed for the property; that defendants claimed through Fain, the judgment debtor; that Willis & Bro. had taken control of the lots about September 1, 1874, and had let the same to Graves, the original defendant; and¿ that the rent was worth $20 per month.
    The defendants, Willis & Bro., read their deed from Fain and wife of date 3d June, 1874. Fain, as witness, testified “ that he had lived from 1867 upon the property in controversy until the middle of October, 1873, at which time he-left and moved to the place where he now lives; that he had' built there a good house, and fully improved the place where he now lives before he moved, and prepared it for a home; . . . that October, 1873, he moved from the property in controversy to his present place of residence, carrying his family and everything he had; . . • . that he had expended $1,500 to $2,000 before moving. That the new place was much more valuable than the oldthat “ he went then to live on the place; that he ate, slept, kept his family at the new place; had his stock, provisions and everything there; . . . that when he moved from the place in controversy to the place where he now resides, he did so with the intention of making the new place his home if he could.”
    “ That before moving he had given Willis & Bro. a deed of trust on a large amount of property, including the place he moved to and where he still resides. That he, when he moved, intended, if he could, to free the place of that incumbrance and make it his home; and he then, also, intended, if he failed to pay off the deed of trust and hold the new place as a homestead, to hold as a homestead the house and lots in controversy in this suit. That since he moved he had paid off the deed of trust and freed the place where he now lives of the trust deed, and he now claimed the place as his homestead, but that he had also claimed the place in controversy after leaving it as his homestead, conditionally; that is, he was intending to come back to it if he lost the title and possession of the place where he moved to and still lives.” . . . That he owned both the place in controversy and the place on which he now lives, when he moved in October, 1873, but before that time he had given Willis & Bro. a deed of trust on the place; that he had also given E. A. Hutchison a deed of trust on the place in controversy to secure about $1,000; that his (witness’s) wife did not sign said deed of trust on the property in controversy; . . . that Willis & Bro. had a deed of trust upon the property on which witness now lives, at the time he moved upon the same; that he and his wife deeded the premises in controversy to Willis & Bro. in June, 1874, and raised the first deed of trust upon the new residence, and the same day gave another upon it to secure $1,250, etc. There were no acts or declarations of Fain’s wife in evidence.'
    The deed from Fain and wife, duly authenticated,' was read, conveying the lots in controversy to Willis & Bro. June 4, 1874.
    In rebuttal it was shown that Fain, when building and before moving to the new residence, spoke of making it his home, etc.; that the place was outside the town limits, etc.
    The court charged the jury with unusual care on the subject of homestead rights. That part specially objected to appears in the opinion of the court. The defendants asked charges, among other things, as to abandonment, the rule in Gouhenant v. Cockerell and Shepperd v. Cassiday.
    The jury found for plaintiff and §100 rent; also as against Fain as warrantor in favor of Willis & Bro.
    Judgment was rendered upon the verdict. A motion for new trial having been overruled, the defendants, Willis & Bro., appealed.
    Errors assigned were:
    1. Sustaining plaintiff’s exceptions to special answer of defendants, filed October 9, 1874.
    2. Sustaining objections to deed of trust from Fain and wife to Willis & Bro., of date May 10, 1873.
    3. Excluding the two deeds from Fain to defendants for " the store and for the one hundred and sixty acres, offered by defendants.
    4. In excluding all evidence in régard to the lien on the property occupied at time of the trial by Fain and wife.
    5. Refusing the instructions asked by defendants.
    6. In instructions given by the court, and especially seventh, eighth and ninth (“in which the rule of law in regard to the acquisition and abandonment of homestead is reversed and the burden of proof thrown on the opposite party”).
    7. The jury found contrary to the law and evidence.
    8. In giving judgment for §100 rents against defendants when not asked.
    9. The instructions given did not comprise the law as applicable to the facts and evidence of this cause.
    10. The overruling the motion of Willis & Bro. for a new trial.

      McCall & McCall and Peeler, Montgomery & Fisher, for appellants.

      Watts & Lanham and Jackson <& Jackson, for appellees.
   A. S. Walker, J.

The first four assignments will be disposed of by considering whether the plea wTas good; the ■testimony excluded became irrelevant unless the facts were a defense.

The substance of the special answer-to which exceptions were sustained is: The appellants, who interplead as the landlords of. Graves, answer that in October, 1873, Fain then occupying the property in controversy as a homestead, and being then the head of a family, wished to exchange the property for certain other property, the same upon which Fain now lives, upon which last named property appellants had a deed of trust from Fain and wife to secure the payment of a debt due by Fain to appellants; that at that time, October, 1873, appellants agreed with Fain to lift the deed of trust from the one piece of property and place it upon the other; that this contract was verbal; that Fain, relying on appellants’ promise, left the property now in controversy, and, going upon the property where he now lives, made valuable improvements, of the value of $2,000; that appellants, in June, 1874, in accordance with their agreement made in the fail ed 1873, released the deed of trust which they had upon the property where Fain now lives, and took a deed from Fain and wife to the property in suit; that this agreement, although verbal, was and is an exception to the statute of frauds; that appellants, by virtue of the agreement pleaded, acquired a right or equity in the land in suit, prior in point of time to plaintiff’s, and superior to it.

Giving to this plea the fullest consideration, it would not allege that prior to June, 1874, the date of the deed from Fain and wife to Willis & Bro., the latter had more than an equitable lien upon the property. Such verbal- contract cannot have greater force than it would had it been reduced to writing and signed by all the parties and duly acknowledged. If so written it would be only a mortgage or trust deed (which is a species of mortgage). Such mortgage takes no effect as a lien upon property as to third parties unless recorded. Pas. Dig., 4985.

This contract, as pleaded, could not defeat the alleged title of the plaintiff under the judgment lien. The plea was therefore bad, and there was no error in sustaining exceptions to it, nor in excluding the testimony offered with reference to the facts relied on in it as a defense when offered on other issues.

The fifth error assigned relates to the charges asked by the defendants. The charges asked are numerous, and no special complaint having been made, they will not be particularly noticed.

The sixth assignment questions the correctness of the seventh, eighth and ninth charges given by the court. They are as follows, so far as necessary to be stated: . . . The law is, that where a man, the “ head of a family, owns a tract of land on which he has created an incumbrance (a deed of trust or mortgage, for instance), and moves with his family on to and makes his home on the land, intending to remove the incumbrance and make it his home, and he does in fact, in any way, afterwards, remove such incumbrance and continue to reside there and make it his home, then the date of his accrual of such homestead would be, in law, the date of his settlement on the land, and not the date of the removal of the incumbrance.”

8. “Therefore, if you find'from the evidence that Fain, with his family, removed from the lots in controversy, and settled where he now lives, intending to remove the incumbrance on the land (if any existed), and make his home there, and that he now owns, as a homestead, the place where he now. lives, and has continually resided there, and that such removal from the lots in controversy by Fain and wife occurred before the rendition of Kirbie’s judgment, February G, 1874, it will be your duty in the case to return a verdict in favor of plaintiff, Kirbie.” "

9. “ But on the contrary, if you find from the evidence that Fain, at the time he removed with his family from the lots in controversy (if he did so remove), did so intending certainly to return and make his home there, and that he, Fain, up to the 3d day of June, 1874, had neither acquired a new home, nor changed that intention, then and in that case, it will be your duty to return a verdict in favor of defendants.”

Calling attention to the testimony that Fain* was indebted and had mortgaged all his property but his homestead to Willis & Bro. lie desired to change his homestead to a ten-acre lot adjoining the town of Weatherford. By consent of Willis & Bro., and with an agreement that they should, for their release to that, have the homestead. On this agreement Fain moved, intending to make the new residence his homestead if he could; that is, if he could exchange the old for the lien upon the new. The intent to abandon the old seems to have existed only in the intent to use it in acquiring the new.

Looking to the protection alone of the present rights of Fain, the charge was not error. But in relation to the property in controversy, Willis & Bro. stand in the same condition that Fain and wife did on June 4, 1874. If the old homestead was in fact and intent abandoned, evidenced by the removal to the new, with intent to remain, then Willis & Bro. took subject to Kirbie’s judgment lien. If, however, the disposition of the old as a means of settling the incumbrance on the new, was a prerequisite to the existence of the fixed intent to make the new the homestead, then Willis & Bro. took the property as exempt.

As against Iiirbie, Fain could not change his homestead; Iiirbie had a lien either upon one or the other of these places of residence., The charge of the court floated back the date of acquisition of 'the new to a time anterior to Kirbie’s judgment as an effect of the transaction of Fain and ■wife with Willis & Bro. June 4,1874, which was subsequent to Kirbie’s lien.

The homestead exemption is designed to secure to the family of the debtor a real benefit. The wife has a veto upon the disposition of' it by the husband, in fact as in theory. It would be as much an infringement of her right to allow a husband to dispose of the homestead by designating another, as by his deed. In this case there is no testimony of any act or declaration of the wife prior to her deed to Willis & Bro. The acts of the husband alone could not change it.

The status of the property at the date of Kirbie’s judgmenfc is the real subject of inquiry; and if at that date Mrs. Fain had homestead rights therein, the homestead would pass to Willis & Bro.

[Opinion delivered March 24, 1880.]

Its homestead quality having been proved, to divest the property of that quality it devolved upon plaintiff, with the burden of proof upon him, to prove either that in fact and intent a new one had been acquired, thereby effecting an abandonment; or that, with clear intent not to return, it had been left. These issues should have been submitted to the jury. Meither was given in terms recognized as expressing the law.

The defendants asked instructions expressed in legal phraseology pertinent, to a case of mere abandonment, and they were refused. The court, in its charge as given, attached to the acquisition of a new home, unexplained save by the discussion in the seventh and eighth charges, the consequence of conclusive evidence of abandonment of the old.

Besides the court had, in effect, by the charge, attached to the unformed intention, added to the transaction between Fain and wife with Willis & Bro. on June 4,18Y4, in which Willis & Bro. had taken a deed to the old as homestead, in discharge of the lien upon the new, so great effect as to retroact and deprive the property so conveyed to Willis & Bro. of the only quality which gave it value to them. This was charge upon the weight of testimony, and left but little to the jury.

In addition the court imposed upon defendants the burden of proving that the intent to return certainly existed, and that it was not changed, as necessary in order to negative abandonment, as the result of the removal. This was error. We cannot know but that these charges influenced the jury. They were upon the real issue. Although the testimony may have been sufficient to sustain the verdict had the issues been clearly submitted, still for such error the judgment should be reversed.

Reversed and remanded.