text:
    M. F. Mott v. J. W. Riddell et al.
    (March 19, 1880.)
    Administration, application for letters of — Limitation.—A creditor whose claim is barred by limitation cannot force an administration of an estate. When an administrator is removed the sureties on his bond cannot compel a second administration to determine the extent of their i ility. The value of each act of service rendered by an attorm i an administrator in conducting the administration of an est. becomes due on its performance, and when such an account is sought to be enforced by legal proceedings, only such items as are within two years from the commencement of such proceedings will he allowed; all others are barred by the statute of limitations of two years.
    Appeal from Galveston county. Opinion by Walker, J.
    Statement.— ¡November 11, 1875, M„ F. Mott filed an application for letters of administration de lonis own on the estate of James McCulloch, representing that the former administrator had been removed; that the estate had never been closed; that there was a large amount of property in Galveston county belonging to the estate; that there are unpaid debts due from the estate which render an administration necessary, and that he was a creditor.
    J, W. Biddell, as an heir and owner of the property, resisted the appointment, alleging that there was no necessity for further administration, and that the property had passed into the hands of the heirs; that there were no valid debts; there was also an application that Mrs. McCulloch be appointed if an appointment should be made.

      The statement of facts shows: “M. F. Mott made application for letters of administration on the ground of being a creditor of the estate. It was shown, upon a hearing of the application, that the claim was for legal services rendered jointly with J. W. Harris, Esq., as attorneys of the estate from the time of opening the same until the removal of the administrator, John W. Biddell; that said Mott and Harris were attorneys of the estate continually until said removal. The justice of the claim of Harris & Mott was denied, but no proof was heard, either as to the value or nature of the services, or the time when rendered; that the claim for legal services had never been adjusted or paid, and that no claim or account for such services had ever been presented to the administrator for allowance or rejection. Ho claim or account or other evidence of indebtedness was shown to the court on a hearing of the application, but it was admitted that the claim was an account for legal services rendered the estate.
    It was also shown that Harris & Mott had a claim against John W. Biddell, the administrator, based upon the following contract:

    I, John W. Biddell, administrator of the estate of James McCulloch, deceased, agree that Messrs. Harris & Mott shall be the sole attorneys of the administrator in the management of said estate; that they shall have the usual fees, such as shall be allowed by the court, as attorneys of said estate, and, in addition, that they shall have ten per cent, on all that part of said estate which they shall obtain for all the heirs of the same, except John McCulloch.
    The said John McCulloch claiming the whole of said estate, and it being the object of the said administrator to get for the other heirs of the said James McCulloch what portion of said estate they shall be entitled to, and to pay the said Harris & Mott one-tenth of what they may be enabled to secure for the said other heirs, in addition to their fees as attorneys of said estate. Hereby binding as fully as I can do in the premises.
    Witness my hand, January 8, 1867.
    [Signed] Johit W. Riddell.
    It was claimed by applicant that this was a claim against John W. Riddell individual!}7; also as administrator, in addition to the account for services rendered the estate. It was shown that Riddell qualified as administrator of the estate in January, 1867; that J. W. Harris and M. F. Mott became his bondsmen; that on June 17, 1873, by reason of the withdrawal of said Harris & Mott from his bond, he was cited to give new bond, which failing to do, he was removed November, 1873. It was shown that Riddell had never filed any account or exhibit as administrator. It was shown that Riddell had made payment to the'heirs of the estate of their respective portions and held their receipts, or to parties claiming to be heirs, though the heirship of no party or parties had been established or any legal steps taken to establish the same. It was also shown that Mrs. M. J. McCulloch, widow of John McCulloch, was of no kin, by blood, to the deceased, James McCulloch; that Riddell had had the.control and management of the property ever since his removal, and that there were no claims against the estate except that of Harris & Mott; that there were parties in and out of the state, some of whom-were minoi's, who claimed to be heirs of the deceased, James McCulloch, but that no steps had ever been taken to establish their heirship, and no proof upon the point was heard upon a hearing of this cause. .
    Upon hearing, December 20, 1875, the application was refused, the order reciting that it appeared to the court' that no necessity exists for administration upon said estate further than that already had. The applicant appealed, assigning error: 1. Error in refusing the application. 2. Error in decreeing that no further administration upon the estate was necessary.
   Opinion.— It is our opinion;

1. That the written contract executed by the administrator extended only to a general retainer for the administrator; and, under the authority of Jones v. Lewis, 11 Tex., 366, the money value of each act of service became due on its performance, aiid the whole became an account against the estate, and which, when sought to be collected by legal proceedings against the estate, only items within two years from the commencement of such proceedings would be allowed.

2. The filing of the application of Harris & Mott to be released as sureties of Riddell on June 17, 1873, and the citation to give a new bond had the effect of suspending his power to act as administrator beyond the mere protection of the estate. From the citation in June, 1873, Rid-dell was only nominally the administrator and could not bind it by any act. Probate Act of 1870, § 114. This suspension was two years and nearly five months before the application by Mott.

3. It is doubtful whether the application for letters of administration de bonis non could have the effect, of itself, of stopping the statute of limitations from running even against the applicant. He is required by law to prove his account in proceedings had before the judge of the court of probate. Probate Act of 1870, §§ 186, 207.

4. Under the probate law in force at the institution of these proceedings (Act of 1870), it was the law that solvent estates be closed in the probate court; and that the partition had not been made was, ordinarily, a cause for the grant of a second administrator. The administrator de bonis non was required to account for the inventory of the original administrator. This compelled an exacting settlement with the former. Secs. 46, 271, 275. Parties interested in the administration could compel a settlement with the former administrator. Sec. 46. Those “ interested in the administration” include only “distributees, creditors and the executor or administrator.” See. 38.

5. The appellant’s right to be heard in demanding a settlement of the estate would depend upon whether he was a, creditor; he is not claiming otherwise»

6. If the claim of Harris & Mott appeared in the proceedings to have been barred by limitation, then Mott, by virtue of his interest in the claim, would not be a creditor . in the meaning of the term when used in the administration of estates. Chandler v. Hudson, 11 Tex., 37.

7. It was not improper in the district judge to consider the statute of limitation as if pleaded to the account. The law required the court to disapprove all items apparently barred. P. D., art. 4614; Chandler v. Hudson, 11 Tex., 37.

8. If, as insisted in argument, there may be a liability upon Riddell’s sureties which should be settled, such fact, it would seem, would prevent the appointment of the applicant. He is not a disinterested party. Sec. 103, Probate Act of 1870.

9. The supreme court, in Tyson v. Britton, 11 Tex., 224, in construing the repealed section 3 of the act of limitation of 1841, enunciated the proposition, which seems to have been regarded as a principle of construction, that “the . legislature has prescribed a general rule with special disabilities or privileges, and these cannot be enlarged or extended to objects not embraced in the exception by mere implication or from parity of reason.” We regard this as meaning that the exceptions to the running of the statute of limitations will not be extended by the courts. The court has held in certain conditions of facts and by reason of fraud the case will be taken out of the statute. Munson v. Hollowell, 26 Tex., 475. See, also, Cole v. Runnells, 11 Tex., 272. The claim held by Mott being an account and over two years before the application, within none of the statutory exceptions, was, on its face, barred.

10. The administration of the McCulloch estate had been opened in January, 1867, and for the apparent purpose of obtaining possession of the property from one JohnMcCulloch, who held it and claimed as an heir. (See agreement.) Riddell made no exhibit or report of his acts during the six and one-half years of his administration. The purpose of the administration seems to have been accomplished by obtaining possession of the estate. The proceedings, so far as shown, consisted of qualifying, returning an inventory and reducing into possession the property. The removal was caused by his own attorneys, who were sureties on his bond. Subsequent to his removal, if not before, Riddell divided the rents of the property among parties claiming and recognized as heirs. He holds receipts therefor. The heirs, or parties claiming to be such, and whose.claims are not disputed, so far as shown, have been taking and enjoying the proceeds of the property of the estate. ■

These facts in evidence may have been considered by the court sufficient to show an actual closing of the administration by the property passing into the hands of the heirs. In such event it was not necessary to grant a second administration (Fisk v. Norvell, 9 Tex., 13; Chandler v. Hudson, 11 Tex., 32), unless there were debts. It was, therefore, not an error of which appellant can complain, if it be an error, that the court, at his instance, refused to re-open the administration merely for the purpose of having a settlement made with the former administrator and a partition of the estate among the heirs who were already in possession.

11. We hold that while an heir or distributee or a creditor could have forced an administration de bonis non, and while the court could, in his discretion, and without error, have granted the application, yet the refusal was not an injury or deprivation of a right of which appellant can complain. His debt being barred, his voice in the administration could be disregarded. The adjudication that the estate needed no further administration was not without the support of testimony, and it was within the jurisdiction of the court, and was no injury to applicant.

The sureties on the bond of the former administrator have not the right, as such, to compel a second administration to determine the extent of their liability (sec. 46, Probate Act of 1870), even if not disqualified thereby from appointment to such second administration.

Finding no error in the judgment, it should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Houston City R. R. Co. v. Jackson Martin.
    (February 12, 1880.)
    Trespass upon realty—Evidence—Decree- op court, how proven.— The proper evidence of a decree of court is a copy from the records of that court duly authenticated. Articles 4710 and 5023, Paschal’s Digest, simply require that a copy of the decree of a court, affecting the title to land, shall be recorded in the county in which the land lies, before it can be admitted in evidence; but they do not provide that a copy of that record shall he evidence.
    Appeal from Harris county. Opinion by Quinan, J.
    Statement.—Martin sued the railway company for damages sustained by the building of their road on his property, fractional lot 267, in the city of Houston. The railway company pleaded not guilty; that the ground occupied by their road had been a -public street or highway for forty years; that the. city of Houston had granted the company the right to build its road thereon.
    The cause was submitted to the judge, who rendered judgment for the plaintiff for §500 damages, and that upon payment of said sum the title to the fractional block 267 be vested in the defendant. The motion for a new trial was overruled and defendant has brought this writ of error.
    The errors assigned upon which the railway company rely are as follows; E That the court erred in overruling defendant’s objections to the introduction, by plaintiff, of the proceedings of the- probate court of Brazoria county, decreeing Mrs. E. E. Parrot to be the sole heir of John Austin; 2, that the court erred in rendering the judgment that was rendered, there being no such issue in the pleadings; 3, that there was not sufficient evidence to establish the judgment of Henderson v. Allen, to support the sheriff’s deed to Johnson; 4, the insufficiency of the evidence to support the judgment.
    The chain of title to the property sought to be established by the plaintiff below was as follows: 1. The grant from the government to John Austin. 2. The heirship of Mrs. E. E. Parrot, his widow. 3. Mrs. Parrot’s deed, with her husband, to A. C. and J. K. Allen. 4. Heirship of Rowland and Sallie Allen to J. K. Allen. 5„ Their deed to A. C. Allen. 6. Deed from sheriff of Harris county to Johnston upon sale" of the property under execution upon judgments against M. C. Allen. 7. Deed from Johnston to Martin, the plaintiff.
    There was an agreement between the attorneys of the parties respecting the introduction of testimony in these words: “It is agreed in this case that each party may introduce, on the trial, the books of record of such deeds as they may desire, to deraign title to the property in controversy, and that notice of the filing of any deeds or muniments of title is hereby waived, subject to such legal exceptions as the originals or certified copies would be subject to if introduced.”
    The statement of facts recites: “Under the agreement on file in said case, made by the attorneys of the parties, the plaintiff read in evidence from the records of Harris countjr the following instrument, in writing, to wit: Oertified copy of petition of T. E. L. and Elizabeth Parrot and decree of the probate court of Brazoria county, Texas, dedaring Elizabeth Parrot the only heir of John Austin, with all the certificates thereto,” etc.
    It is shown by a bill of exceptions that when this record was offered in evidence the defendant excepted upon the ground: “ Because the proceedings of said court, so offered, only purported to be a copy of a copy of the proceedings had in the probate court of Brazoria county, and was not a certified copy of the original judgment and proceedings as by law required.”
    The objection was overruled and the document read. The judge appended to the bill of exceptions, signed by him, this statement: 66 The plaintiff having introduced proof, the city of Houston, by ordinances, established the Ban Phillippe street and license to defendant to run its line over the same, and plaintiff also introduced, maps of the city of Houston, ■ whereby it appears that the only right the city has is by dedication from A. 0. and J. 3L Allen, the founders of the city of Houston; it is wholly unnecessary to go back of the title to said Allens. James Mastebson, Judge.”
   Opinion.— We are of opinion that the court erred in overruling the exception of the defendant to the reading of the record of the copy of the decree of the probate court of Brazoria. It is certainly not within the terms of the agreement made between the parties. It is not a deed; it is but the copy in the record of the copy of the records of Brazoria county probate court. The decree, of the probate court constituting Mrs. Parrot heir of John Austin was a necessary link in the plaintiff’s chain of title, and the proper evidence of that decree was a copy from the records of that court duly authenticated. We cannot extend the terms of the agreement between the counsel of the parties beyond the plain meaning of language which they have adopted to express them, for that would be, in fact, to make a new agreement for them. Hor do vve find that the statement made by the judge, giving his reasons for' admitting the instrument, is sustained by the record. There was no proof, so far as the pleadings or the statement of facts discloses, that the Allens were the founders of the city of Houston, nor was the original map of the city in evidence. There is in the record simply a sketch of a survey made in 1858 of a few blocks of ground, including the fractional block 2G7, but nothing whatever to indicate the dedication of any streets or ways to the city by the Allens or any one else.

It is insisted that under articles 4710 and 5023, Paschal’s Digest, a copy of the record was admissible. These sections simply require that a copy of the decree of the court affecting the title tó land shall be recorded in the county in which the land lies before it can be admitted in evidence, but they do not provide that a copy of that record shall be evidence.

The plaintiff also insists that without proof of the decree of the probate court of Brazoria “there is still a chain of title under the sovereignty of the soil,” by virtue of the deed from Parrot and wife to A. C. and J. It. Allen, because “in August, 1836, Mrs. Parrot applied to-the judge of the district of Brazos in a written petition in which she represents that she was seized and possessed, by inheritance, of a certain half league of land . . . granted to John Austin, and she prayed permission to sell it.” She sets out what she had been offered for it, the terms of payment,' and the necessity she was under to sell it, as she had plenty of land but no servants to work it. Upon this the judge makes an order, that having read and examined the foregoing petition, and being satisfied of the facts therein contained, authorizes her to sell and convey the land.

The answer to this proposition is:

1. That the order of the judge does not profess to determine the question whether Mrs. Parrot was the heir of John Austin. 5

2. That he had no authority in this matter to do so.

8. That it only proposes to approve her sale of the land, for which purpose the authorization. of a judge seems to have been thought proper, as she was a married woman. Gonst. of the Republic, art. 4; Acts of the Consultation, 136.

The appellant has assigned for error that there was not sufficient evidence to establish the judgments of Henderson and Allen to support the sheriff’s deed to Johnston. This was a question for the court to determine upon the testimony, and we cannot say that it erred in concluding the proof to be sufficient. There was an affidavit filed of the-destruction or loss of the dockets of Anders, the justice of the peace before whom, in 1857, the judgments were allegecl to be rendered, and of the fact that the judgments and executions had existed, and that diligent search had been made for them without success. It was proven that "William Anders was a justice of the peace in Houston in the year 1857, and in October, 1857; that Henderson during that year recovered judgments before said justice of the peace against A. C. Allen; that executions issued upon said judgments and were levied upon the property in question by the sheriff of Harris comity as the property of Allen; that it was sold under said executions, and that John Johnston became the purchaser; that the sheriff executed to Johnston a deed for the property which recites particularly the judgments and executions; that the property has been claimed, under. said sale for twenty years without question. How, although the recitals in the sheriff’s deed may not establish the existence of the judgments and executions, yet his conveyance, with the other facts in the case, taken all together, may well66 be considered as raising a natural presumption, not at all remote,” of the existence of the judgments and executions, their contents and character, sufficient to support the title to the property in the minds of the court or jury to which the facts aré submitted.

In Walker v. Emerson, where the the court instructed the jury that, “ unless the judgment by virtue of which the executions issued is shown in evidence, the executions and the sheriff’s deed amount to nothing in a chain of title,” Roberts, C. J„, says: “ This charge is correct as a general rule. But with reference to the facts of this case it was erroneous in this, that it precluded the jury from inferring the existence of a justice’s judgment, shown by several executions to have been rendered over ten years before the trial,- it being shown that the justice’s docket had been lost, and that the land claimed had been used, and claimed for ten years under the execution sale,” etc. Under these circumstances it was a natural presumption, not at all remote, that such a judgment as that recited in the execution did really exist, and therefore it should have been left to the jury as a fact to be determined by them whether it did or not. 20 Tex., 710.

And in Leland v. Wilson, 34 Tex., 91, the court say: “ Following the authority of Watrous v. McGrew, 16 Tex., 506, and Stroud v. Springfield, 28 Tex., 649, we might presume much in favor of this deed on account of its antiquity (a sheriff’s deed); perhaps we are bound to presume the judgments and the executions recited in the deed.”

The present case was much stronger than those cited. Here we have direct testimony that the judgments and executions did exist, and to the sale of the property levied on under them."

The objection to the judgment as not responsive to the issues made in the pleadings, though certainly true in fact, is not one whereof the plaintiff in error here can complain. It cannot be heard to object that the judgment vests in it the title to the land for the trespass whereon it is sued.

The remaining assignment of error relied on it is not necessary to discuss. The questions presented are purely questions as to the sufficiency of the evidence, which may or may not arise upon another trial.

For the error in admitting the record of a copy of a decree of the probate court of Brazoria county the cause will be reversed and remanded.


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    Brooks, Knox & Co. v. Joseph T. Price.
    (February 13, 1880.)
    Practice»— Assignments of error % damages; attorney’s fees»
    Appeal from Gonzales county. Opinion by Walkeb, J.
    Statement.— April 10,1874, Brooks, Knox & Co. brought suit against J. T. Price for $1,430, alleged to be a balance due them on the settlement of a partnership adventure in a drove of cattle driven by them, in 1871, from Texas to Kansas, which resulted in a loss.

      The defendant pleaded a settlement and adjustment of the accounts between them, and. set up an obligation of date ¡November 26, 1872, executed by plaintiffs, in which it was recited that such settlement had been made, and that Price had been paid in full, obliging themselves to take up a note to one Beall against the partnership, guarantying Price against the claim, and that, in violation of their agreement, the plaintiffs had permitted suit and judgment on said claim, and had caused execution to be levied on one thousand nine hundred a.nd twenty acres of defendant’s land; that plaintiffs had, through an agent, bought in the property. Prayer in reconvention for cancellation of sheriff’s deed, damages, etc.
    The plaintiffs, in reply, pleaded that the settlement made December 26,1872, was erroneous in many particulars, and had been made in mutual mistake as to the true condition of the partnership losses, asked that the account be opened, etc. An auditor was appointed, who reported a sum from §606 to §914as due from Price on the partnership matter; the larger sum arising from a computation of traveling expenses, insisted on by plaintiffs but resisted by defendant. There was a general verdict for defendant for §250 damages for attorney’s fees. Judgment was rendered for Price, annulling the sheriff’s deed and for the damages found and costs.
    Plaintiffs filed a motion for new trial for the following reasons: 1. The court erred in instructing the jury to allow the defendant damages by way of attorney fees. 2. The verdict is contrary to the law and the evidence. 3. That the court erred in the admission of evidence as shown by plaintiffs’ bill of exceptions.
    This motion was overruled and plaintiffs appealed."
    The errors assigned are: 1. The court erred in the instructions to the jury. 2. The court erred in admitting evidence of, and instructing the jury to find, attorney’s fees for defendant, as shown by plaintiffs’ bill of exceptions. 3. The verdict of the jury was contrary to the evidence and the charge of the court. 4. The judgment was contrary to law and the evidence in the case. 5. The court erred in overruling plaintiffs’ motion for a new trial for reasons therein stated.
   Opinion.— The motion for new trial and assignment of errors are set out in full as showing a reason, on our part, for not attempting to digest and give the result of such investigations as to the state of accounts between the parties.

The only specific error in the assignment, designated in the motion for new trial, is the admission of evidence as to ■amount of attorney’s „fees for defending the suit and rendering judgment therefor. Since the trial of this case below this subject has been discussed in several cases and the rule more clearly and strictly defined than in the earlier cases.

In Landa v. Obert, 45 Tex., 545, Moore, J., it is said: “ There is unquestionably some conflict in the decisions, and we readily admit that some of the earlier decisions of this court, that tend, in some degree, to maintain the proposition when fraud or malice are of the gist of plaintiff’s action, he may recover his counsel fees in prosecuting the suit, as part of his damages. But while we do not mean to intimate that there are no cases in which the plaintiff may be entitled to his recovery, he is only entitled to do so, as we think, where they are a part of the damages resulting as the natural and proximate consequence of the act complained of.”

In Salado College v. Davis, 47 Tex., 131 (Gould, J.), the rule is given: “Inordinary cases, where no further wrongful act is complained of than the institution of a groundless suit, though done knowingly and with intent to harass, the award of costs is, in contemplation of law, full compensation for the unjust vexation.”

Tested by these decisions the allowance of attorney’s fees in the case was error.

The errors assigned as to the charge of the court are too indefinite. The instructions cover eight pages of the transcript and consist of a clear statement of the main issues submitted, together with a careful explanation of the law applicable to the pleadings and the evidence. «Counsel for appellants, in their brief, criticise a paragraph which, if isolated or not corrected by other instructions (as it is), would be likely to injure the plaintiffs. ¡No charge was . asked calling the' attention of the court to it. The only instruction asked, and which was given, was as to the terms of the settlement made December 26, 1772. This charge, as given, was fully as favorable as could have been ex.pected on the main issue.

The charge, as a whole, fairly submitted plaintiffs5 case to the jury.

For want of specific assignment we do not give the subject further discussion. Howard v. Colquhoun, 28 Tex., 143; Trammell v. McDade, 29 Tex., 362; Flanagan v. Boggess, 46 Tex., 334; Tompkins v. Toland, 46 Tex., 588.

The testimony is voluminous and directed to a great number of details. The auditor’s report was excepted to by both parties, and apparently most of its items made the subject of litigation anew. We do not give our opinion upon the testimony as to the state of the account between, the parties. The testimony did show that the accounts were kept by the plaintiffs; that Price settled on their figures; that the accounts1 were in a confused condition. It does not appear but that plaintiffs could have known the condition of their accounts at the settlement as well as subsequently. 1 Story, Eq. Jur., § 140.

There was testimony supporting the verdict; though it may not be conclusive to us, yet it should not be disturbed unless clearly wrong.

The defendant having remitted the damages found, the case will be reversed and the judgment reformed. Judgment for the defendant as below, save for the $250 damages; appellants to recover costs of the appeal.


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    Henry Stude v. C. B. Saunders.
    (February 10, 1880.)
    Charge. — Where the charge of the court in effect excluded material conclusions to be deduced from the evidence, it is error, without counter-instructions having been presented.
    Same — Damage to person.— In a suit for damages caused to the person by an assault and battery, held, that it was error to so instruct the jury' as to exclude from their consideration all the circumstances explanatory of the motives and intent of the defendant in striking the blow, or explanatory of the provocation given, notwithstanding the jury might have been satisfied that the defendant wrongfully began the difficulty.
    Appeal from Harris county. Opinion by Walker, P. J.
    Statement.— This was an action by the appellee against . the appellant for damages, based upon an assault and battery committed upon him by the defendant. The petition claimed §5,000 as damages, actual and punitory, alleging the actual damages, by itemized statement thereof, to be §512.80.
    The evidence on the trial showed that the parties, at the time of the alleged personal trespass, were partners, keeping, together, a coffee saloon in the market-house in the city of Houston ; that, on the occasion referred to, Saunders coming to their place of business, his partner, who was at the time waiting on a customer and holding a gallon milk-can in his hand,— which was described as an utensil made of tin, with a handle five inches in length,— commenced complaining to him for his lateness in coming to their place of business. The tone or temper or degree of violence of the defendant’s remarks, in the beginning of the conversation betweep them, are variously indicated by the several witnesses. All accounts concur that it soon warmed into a quarrel in the German language, resulting in at least one severe blow directed by the defendant against the plaintiff, inflicting a wound requiring medical aid and attention, and an injury, the particulars of which need not be further stated. The plaintiff neither struck nor attempted to strike the defendant, nor did he offer resistance when stricken.
    The conversation, as all the witnesses testified, was begun by the defendant. The plaintiff stated, as a witness, that when he came in the defendant commenced .abusing him for coming so late, and was very angry; that he tried to pacify him; and after the further recital of unimportant particulars relating to the progress of the verbal controversy, stated that as he was turning around to leave the saloon the defendant struck him with the milk-can.
    John Jianes testified that when Saunders came in the defendant said something to him in German which he did not understand, in which language they continued to talk, and which he did not understand; that they talked loudly, and both seemed to be angry; and that when the blow was stricken Saunders was standing facing Stude and had his right hand extended.
    George Pritchard, a witness, testified that he heard them, talking loudly; they seemed to be quarreling; heard a blow struck; he did not understand them, as they used the German language, liicka Luck, who understood the language, testified that “ Stude commenced at Saunders about coming so late, and they went on talking and both seemed mad.” Witness Trepagnier stated that they talked loudly in German, and seemed to be angry, when Saunders threw his right hand down, when Stude struck him.
    The defendant testified that the plaintiff came unusually late; he complained to him about it, and we got to quarreling; we both got mad, and both abused each other in. our language; we quarreled a good while; and stated that whilst he was waiting on a customer Saunders came to him with his closed hand extended, and said “ I will shoot you,” when he instantly struck him; I struck him because he said he “ would shoot me.” He stated, also, that he knew there was a pistol in the saloon. Another witness, Ella Dale, also testified that Saunders walked up to him (Stude), and said, “ I will shoot you.”

      The jury returned a verdict for 0583.55 actual damages, and 0500 exemplary damages, in favor of the plaintiff.
   Opinion.— The only error assigned by the appellant which need be noticed is the third, viz.: “The court erred in its fifth instruction to the jury, as follows: ‘ But if Stude himself began the quarrel, you are to disregard what plaintiff may have said, so far as mitigation goes.’ ” There were no counter-instructions asked by the defendant, nor exception taken to the charge. It is submitted in the brief of the appellee that, the appellant having failed to either except * to the charge given, or to ask a counter-charge, that an objection urged now to the correctness of the instruction given to the jury will not here be considered. The cases cited and relied on to support this position, as applied to the record before us, fail to maintain it. “ Where the charge in effect excluded material conclusions to be deduced from the evidence, it is error, without counter-instructions having been presented.” Chamblee v. Tarbox, 27 Tex., 146.

The instruction complained of presented to the jury a proposition which subjects it to the operation of the rule just quoted. On the question of exemplary or punitive damages, “ circumstances which do not amount to a justification, but merely palliate the character of the offense and mitigate the wrong, are admissible in evidence in reduction of the damages under the general issue; . . „ circumstances cannot be given in evidence in mitigation of damages where they would amount to a complete justification and might have been pleaded as such; but where they fall short of a complete justification, and do not amount to a defense to the action, they may be given in evidence in mitigation of damages as establishing a less aggravated case against the defendant.” Addison on Torts, 993-4; Wood’s Mayne on Damages, 591 (note).

■ Provocation so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the feelings and passions excited by it is admissible evidence in mitigation of damages. Sedgwick on Measure of Damages, p. 644.

The consideration that the defendant may have begun the quarrel constituted only a part of the facts of the transaction; and, whilst it was one proper for the consideration of the jury in estimating the amount of damages, it was the right of the defendant to have had the benefit of all the other circumstances attending and immediately connected with the alleged trespass which might modify or qualify the weight to be given by the jury to the fact that he may have in fact begun the quarrel; and it was error to so instruct the jury as to exclude from their consideration all the circumstances explanatory of the motives and intent of the defendant in striking the blow, or explanatory of the provocation given, notwithstanding the jury might have been satisfied that the defendant wrongfu’ly began the difficulty.

The effect of the instruction given was to deprive the defendant of the benefit of all the evidence before the jury tending materially to mitigate the otherwise seeming wantonness of the assault,and battery committed on the person, of the plaintiff. This evidence consisted in the testimony of two witnesses that the plaintiff threatened to shoot the defendant; and it was in evidence further that his hand was extended and closed; that defendant struck plaintiff at that time and because he was incensed at the threat. The evidence was material to the defendant; and under the instruction given to the jury not to consider the words used by the plaintiff in mitigation of damages, we cannot say that the finding of the jury would not have been more favorable to the defendant but for the erroneous charge given by the court, and that he may therefore have suffered injury from the error complained of. For this error the judgment must be reversed.

The appellant assigns as error the following paragraph of the second instruction contained in the general charge, viz.: ie If Stude began the quarrel, then if-(there was) a continuance therein, he must be regarded as the aggressor.” This paragraph is the concluding one in an otherwise correcfc instruction on the law of self-defense, as applied to this case; and it is a qualification in the terms, as above given, of the defendant’s right, from actual or apparent danger of immediate violence from the plaintiff, to defend himself properly under the law. The qualification was not exactly correct. If Stude provoked the difficulty with the intention of engaging in a combat, or by his words and acts provoked the plaintiff to strike him, with the intention of inducing a breach of the peace, he would not, in thus voluntarily seeking and provoking the necessity of defending himself in a fight upon which he voluntarily entered, be permitted to invoke the application of the doctrine of necessary self-defense, unless the plaintiff had resorted to means or used a degree of violence beyond that which he himself was offering to use in the proposed combat. The beginning and continuance, by the defendant, of a mere quarrel of words, without the intent and purpose above indicated, would not be sufficient to qualify the absolute right of self-defense against offered violence.

In view of the reversal of the judgment and of another trial of the cause, we have deemed it proper to make the foregoing comments upon the instruction of the court last referred to, in order that the charge of the court on the question of self-defense may be made to conform to the views of the law which we have expressed.

It is the opinion of the court that the judgment be reversed and the cause remanded.


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    W. T. Stanley v. A. H. Samples et al.
    (February 23, 1880.)
    Construction of written instruments — Will or deed —Evidence of probate.—It is the duty of the court to determine whether an instrument has legal effect and what such legal effect is. And where the terms of an instrument showed it to be a will the court should have so instructed the jury; and it was error to submit to them the question whether it was a will or a deed,

      Appeal from Gonzales county. Opinion by Walkeb, J.
   Upon the questions involved in this case we hold:

1. A devise of “ my own headright for one-third of a league of land, or the land that may be acquired thereby, or the money that may be obtained for either the certificate or the land,55 is sufficiently certain to pass to the dexdsees the land patented at the time the will xvas written under the certificate described as the headright of the testator. In this will the writer seems to have adopted the form of description to meet every transformation of interest an un- „ settled condition of land titles might produce.

2. The copy of the will and of the affidavit annexed to it, made by one of the subscribing witnesses, to the facts necessary to its probate, certified by the clerk of the court having custody of such will, and such transcript showing affirmatively that it xvas taken from probate records, was not proof of its probate sufficient of itself. The testimony, however, further showed the destruction of the court-house and of the probate records of the county, including the minútesbook, which would exddence the decree of probate if it existed. A subscribing witness, the one whose affidavit is annexed to the will, testified on the trial that the will had been a probated^ and that “ it was proved up by me.55 The court admitted the will in evidence and submitted it asa fact to the jury, and the jury found against the party exhibiting the will on other grounds. In such a case the court will not affirm the judgment on account of insufficiency of the preliminary evidence of the probate. There was some evidence to all the requisites to the admission. Had the court below demanded more testimony to the existence and contents of the order of the court admitting the will to probate, it may have been furnished. To affirm for such defect might destroy a right on the erroneous ruling of the court made in its favor. It would seem a safer course, before a second trial, to have the order substituted in the probate court, or entered nuno pro tunc, or even a new probate, there appearing no delay in presenting it for probate action.

3. It is not necessary that we decide whether the original testimony proving the will was properly admitted. There was ample proof of its preparation, signature, due execution, testamentary capacity, and subsequent death of the testator. There is great conflict in decisions whether the existence of courts of exclusive probate jurisdiction, to be exercised within general statutory modes of procedure, would or not exclude the right to the exercise of partial probate powers by other courts, whenever a will shall be drawn into litigation or form a link in the title of property in litigation.

Refusing to affirm on defects in plaintiff’s case, we proceed to the assignments of error.

4. The record books of deeds kept in the several counties are but copies. P. D., art. 3715. They are not evidence under the statute; copies may be taken and used under statutory regulations. The memorandum of the date of filing of the several deeds in the books are original entries, and it would seem, on principle, might be evidenced by certified copies. The copy of the document from Montgomery county, certified by the district clerk in 1873, having custody of the land records, was not admissible under art. 3715, P. D., as insisted. Original books would not be, and copies under this section can only be used where the originals . would be admissible.

5. But the document purports to relate to lands, to be designed to effect a conveyance of real estate described as in Montgomery and other counties. It was duly acknowledged for record by the maker, and under the registration laws it was properly recorded, whatever may be the legal effect of the instrument. P. D., art. 4977; Peterson v. Lowry, 48 Tex., 411.

. The statute prescribes the use to be made of these records. P. D., art. 3716. The clerk shall give copies, which may be used as evidence under prescribed rules.

The facts authorizing the record may be presumed when they appear on the face of the paper. When copies are tendered in evidence upon an examination, the proper record can be manifest if they exist. The three days3 notice required by the statute may allow investigation, among other things, as to whether there may be fraud in the registration.

The theory of the plaintiffs is that the paper was actually destroyed by the maker several years before his death. The effect of said destruction would not limit rights under it to Montgomery county alone.

We see no necessary, if any, limitation in the statute to the use of copies only in courts held within the county from whose records they are taken. The transcript from Montgomery county was property admitted in evidence.

6. This brings us to the controlling fact in this controversy: The effect of the instrument made August 26,1813, bjr W. C. Jones to Simon Jones.

It is elementary that construction is not needed when an instrument, by its words, clearly expresses itself as to parties, things, and the change made, or to be made, by the writing upon the things with relation to the parties. It is also the duty of the court to determine whether an instrument has legal effect, and what such effect is. This is done by submitting it to the jury and giving to them the meaning or legal effect of the paper.

In the paper under investigation there is no ambiguity as to the parties nor things. Is there any as to what is affirmed? W. G. Jones wills and bequeaths certain things to Simon Jones. Expressed logically, as a proposition, it is that Wm. 0. is willing and bequeathing to Simon Jones. The act of whiling and bequeathing has, in technical and common language, the same signification. Wigram on Construction of Wills, p. 126.

Written out at length, the equivalent in expression is, disposing of property in the mode required in making a will; making, in writing, a legal expression of my wish, and a disposition of the property in a way that it shall take effect at my death.

The words “ to have and to hold to him, the said Simon Jones, as his own right and property, against myself, my heirs, executors and administrators forever,” should not be allowed to change the character of estate, for the habendum is “ void if it be repugnant to the estate granted ” (4 Kent, 468; 2 Black, 298); nor do these words necessariW or reasonably negative the main proposition.

7. The court evidently had the case of Ferguson v. Ferguson, 27 Tex., 345, in view, and was governed by it in framing the general charge. Had the instrument been a deed by its operative words, but rendered uncertain by other clauses, as in that case, the charge would not be objectionable. The jury are told, as to the words “ will and bequeath,” that, if used in their legal or technical signification, the word “ will ” means the disposition of one’s property to take effect after death. The word “ bequeath ” means to give personal property by will to another ; but this word has been.construed to mean devise, so as.to pass title to real estate. The court fails to tell the jury that the presumption is that such is the meaning intended; and it fails to tell what is the untechnical or common meaning of the terms. It leaves an uncertainty that does not exist on the face of paper. Wigram on Construction of Wills, p. 426.

There having been no counter or explanatory charge asked, we would not reverse alone for this; but the jury were fui'ther charged: “ That bad grammar, or the use of inappropriate words or expressions in the granting part of the deed, will not have the effect of changing the instrument from a deed to a will.”

This informed the jury that the paper was, in form, a deed, and required evidence to alter it to a will; or it maj^ have conveyed to the jury the idea that the terms “ will and bequeath ” were inappropriate terms to convey some other meaning. This was error.

The jury are told, further, that “the instrument must be construed by you most strongly against the maker; that is, if the paper under examination may be equally regarded as a deed or will, then it will be your duty to consider it a deed.”

This, in effect, assumed it to be a deed. This rule appears not to be “applied to wills, nor to statutes, verdicts, judgments, etc., which are not words of parties.” 2 Pars. Con., 506, note; Bac. Max. Reg., 3.

It is held in Ferguson v. Ferguson, 27 Tex., 345, that where, from the face of the paper, it is left doubtful whether it was intended to operate as a deed or will, the fact of delivery, if it be a fact, and the intention and purpose of its execution, should be submitted as questions of fact to the jury, “ to be guided by the construction given to the terms of the instrument by the court, together with such extrinsic 'testimony as may be furnished by the parties to aid in their elucidation.”

An examination of the testimony fails to show any facts throwing light upon the intent and purpose of the maker, other than appears on the face of the instrument. He was a bachelor; his nephew, Simon Jones, was a minor and residing with him. A league of land, the one-third league now in controversy, five hundred and fifty «acres, and a town lot in Montgomery county, all his stock, consisting of horses, cattle and hogs, were all included in the instrument. Ho possession of any of this property was ever given by the maker or claimed by the nephew. The paper, after its record, seems to have been retained by the maker, who afterwards and continuously claimed the property, and who destroyed it several years before his death in the presence of the nephew, then of age. Ho claim was ever asserted, under the instrument until 1860, three years after the death of the maker.

If these facts indicate an intent on the part of Wm. G. Jones as between the paper being a deed or will, his acts largely preponderate in favor of the testamentary intent. Its record stands alone as a recognition of its present effect, but whatever conclusion may be drawn from the record is overborne by the proof of the actual retention and nondelivery as a fact.

Again, the first instruction submitted to the jury as an independent issue, “if you believe, from the evidence, that the instrument . . . is a deed, and conveys the land in controversy, then you will find for the defendant,” To this the verdict is a direct response.

In the next proposition the jury are directed, “ if the instrument ... is not a deed, but a will, then, and in that-event, you will be governed in your findings by the rules and instructions hereinafter given you,”

Then follows elaborate definitions suitable, had there been operative words making the document a deed, but rendered uncertain by other contradictory clauses of equal importance, as in the Ferguson Case.

It was but natural that the jury should act upon the proposition first submitted; they were not directed to investigate further unless they should believe it “ not a deed but a will.”

We do not consider that the charge, as to the meaning of the terms of the will, was in accordance with the law applied to the words of the document. Kor do we think that the extrinsic testimony evidenced an intention to make a deed.

The jury should have been told that the paper was a will in its terms; the only other matters which could have been submitted as to intent were, whether the parties had, in fact, acted upon it as if a deed by possession or otherwise.

For the misdirection, by the court, to the jury, and because the verdict is not sustained by the testimony, the cause should be reversed.


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    Julius Kaufman v. W. L. Edwards.
    (March 25, 1880.)
    Principal and factor.—Duties, powers and liabilities of cotton factors; usage of trade; parties dealing with factor are chargeable with notice of the limits fixed by law to his power.

      Appeal from Galveston county. Opinion by Walker, J.
    Statement.— March 14, 18Y4, “the plaintiff sued Kaufman to recover twelve bales of cotton or their value, alleging that the same was, December 31," 18Y3, in the hands of Dublé & Wooters as his, plaintiff’s, cotton factors at Galveston, for sale in the market at Galveston, in accordance with the known usage of trade in said market, and without any authority to ship the same to any other market, or to pledge or dispose of the same in any other way than by sale, for cash, at its fair market price in Galveston; that the defendant wrongfully took possession of said cotton and converted it.” The defendant pleaded general denial and several special defenses.
    The court, in ruling upon exceptions to the answer, held; 1. That “ the defendant’s answer, in so far as it alleged that the cotton was shipped by the plaintiff to Dublé & Wooters for the purpose of either sale in Galveston or reshipment by them to Liverpool at their discretion, and advancements made by defendant to Dublé «fe Wooters on such discretionary reshipment, presents a proper defense, and in that respect the exceptions of plaintiff are overruled.” 2. That “so much of the answer as alleges that Dublé & Wooters were permitted, by the plaintiff, to hold themselves out as the owners of the cotton, and to deal with the cotton as their own, with the knowledge of plaintiff, and advances made by defendant'to Dublé & Wooters, who were thus held out as the owners of the cotton, present good defenses.” 3. All the other special pleas were held insufficient, and the court specifically ruled that so much of the answer as sets up an usage of trade at the city of Galveston that a commission merchant exercises a discretion to reship his consignee’s cotton to a foreign port furnishes no defense.
    There was a trial before the court without a jury. Judgment for plaintiff for $998.65 and costs, from which defendant appealed. The errors assigned are the sustaining of the exceptions to the special pleas of defendant and the general assignment that the judgment was improperly rendered.
    There is no statement of facts. The presumptions in favor of the judgment are: 1. That the allegations in the petition were proven. 2. That the special defenses allowed were not sustained by the testimony. The absence of a statement of facts leaves, as the only matter before us for revision, the rulings of the court on the special defenses held insufficient.
    The special defenses are: 1. That Dublé & Wooters, as owners of the cotton, delivered it to defendant to be shipped to Melly, Ferget & Co., Liverpool; that defendant, as shipping merchant, only shipped the cotton to M. F. & Co., and delivered it to them without notice of plaintiff's claim. • 2. That plaintiff had consigned the cotton to Dublé & Wooters for sale or reshipment; and, as was the custom and usage of the trade at Galveston, had been shipped to H. F. & Co. at Liverpool, to be sold on account of Dublé & Wooters; advances were so made of $1,200 upon the cotton. 3. That plaintiff permitted Dublé & Wooters to hold themselves out as owners; their shipment through defendant to H. F. & Co., Liverpool, and advances. 4. Set out charges paid by Dublé & Wooters on the cotton, asking that the amount be recouped against plaintiff's claim. 5. That the cotton was held by Dable & Wooters as factors of plaintiff, and that they had advanced necessary expenses, $100, and that defendant, on the reshipment made in the usual course of trade, had advanced Dublé & Wooters for M. F. & Co., $800, all of which was a lien on the cotton and its proceeds. 6. That the cotton was shipped to M. F. & Go. before defendant had notice of plaintiff’s claim, and that at the institution of the suit defendant had not the possession of it.
    The answers not covered by the pleas held good are: I. That the reshipment to Liverpool was in accordance with the usage of trade at Galveston and, therefore, lawful. 2. That Dublé & Wooters shipped the cotton as their own to Helly, Ferget & Co., at Liverpool. 3. That defendant did not have possession of the cotton or its proceeds when the suit was filed.
   Opinion.—We have given this statement of the case because, upon an examination of the record, we do not find a necessity for passing upon all of the points submitted in the agreed statement furnished by counsel. The case has been argued on both sides with unusual care and ability. To attempt even a slight review of the authorities cited, or to indulge in a discussion of the points involved, we regard as not likely to be useful. We give the points decided, and necessary to the disposition of the case as presented, giving to the judgment its necessary effect, in the absence of a statement of facts.

1. We hold that a usage of trade at Galveston does not authorize a cotton factor, in the exercise of his discretion, to re-ship his principal’s cotton to a foreign market for sale.

2. Such usage is inconsistent with the common law as to the duties and powers of factors; it is also in conflict wfith the relations of principal and factor prescribed by statute. P. D., arts. 3803, 3804, 3805.

3. Dublé & Wooters were factors and as such had possession of the cotton. The law fixed limits to their power; all are chargeable with notice of such limits.

4. Dublé & Wooters, by any representations they could make, were unable to create a power over the cotton not conferred by Edwards in his consignment of it to them.

5. Melly, Ferget & Co., except as purchasers, could, through Dublé & Wooters, acquire no other or greater authority over the cotton than Dublé & Wooters, as cotton factors, could confer; therefore they, Helly, Ferget & Co., could not authorize Kaufman to ship the cotton to Liverpool for sale.

6. The three parties, Dublé & Wooters, Helly, Ferget Co., and Kaufman, by no act jointly or severally acting, by express or implied contract, or by any other mode, innocent or tortious, could give legality as against Edwards, and without his consent (which is negatived), to the removal of his cotton from Galveston to a foreign market for sale.

Y. Hor could said three parties, by their acts or contracts among themselves, advance money from one to the other so as to create a lien upon the cotton otherwise than for the necessary expenses in its preservation and sale at Galveston, as contemplated in the consignment of the cotton by the plaintiff.

8. If the taking was unauthorized and wrongful, liability for the act would not be discharged by the further conveying and delivery of the cotton out of the country to the parties at Liverpool before suit.

We hold that the court, therefore, did not err in its rulings upon the special defenses held to be insufficient, as above stated.

There being no error in the record, the judgment should be affirmed.


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    J. H. Simpson & Co. v. Grinnan & Duval.
    (March 16, 1880.)
    Draft.— Maker of may be charged as garnishee of payee, when; bill of interpleader; pendency of another suit for same cause of action.
    Error from Colorado county. Opinion by Walker, J.
    Statement.— March 10,1876, J. L. Harris & Co. brought suit in the district court of Colorado county against S. W. Patchen, a resident of Hew York, and J. H. Simpson & Co., bankers, and residing in Colorado county, claiming that defendants owed one Moses Winter eight hundred dollars; that the debt had been assigned by Winter to one D. D. Chandler,'and by Chandler to plaintiffs; that the said Patchen and one W. B. Coit were in collusion to defraud Harris & Co. and Winter, and prevent their getting the money sued for; specifically charging that the draft was obtained by using money belonging to Winter and taken from his safe by Coit, and that the draft had been drawn in Patchen’s name and sent to him for collection in fraud of Winter, etc.
    Simpson & Co. accepted service, and answered on September 14, 1876, admitting that W. B. Coit, on December 2, 1875, purchased of defendants, then doing an exchange business, a check or draft on the city of New York for 8800, payable to the order of S. W. Patchen, and drawn on S. M. Swenson, for which he, Coit, paid defendants 8800 in cash; that within a few days thereafter Winter came to their office, in Columbus, and told them that the money which Coit had used in the purchase of the draft was not his, Coit’s, money, but belonged to and was the private property of him, the said Winter, and had been illegally and fraudulently appropriated by him, Coit, without the knowledge or consent of Winter, and that Winter then and there insisted and earnestly requested defendants to stop the payment of said check until the matter could be inquired into.
    Defendants being willing to prevent any wrong a and to protect Winter, did at once telegraph to Swenson to refuse payment when the draft should be presented. This was done and Patchen immediately brought suit upon the draft in the supreme court of the county and city of New York against the defendants, which suit is now pending there; and they have been cited to appear and answer in due form of law; and Swenson, Avho had funds of defendants in his hands, has been served with a writ of garnishment in said cause at the instance and request of said Patchen, the plaintiff.”
    “ Furthermore, it is shown to the court that in suit No. 3,369, styled Grinnan & Duval v. Moses Winter et ah, now pending in this court, these defendants have been summoned to answer as garnishees what they owe defendants. or what moneys or effects thej7 have in their hands belonging to said defendants. And these defendants have already filed their answer in said cause, setting up, in substance, the matters and things herein alleged, and praying the court, for their own protection, that all parties concerned be compelled to come into court and interplead, and that it be determined by the court to whom the said §800 rightfully belongs.”
    “How, it is affirmed by these defendants, that said transaction had with the aforesaid W. B. Ooit, at the day and date alleged, was in the usual course of their exchange business, and was bona fide on their part; that they had no reason to doubt but that the funds used by Coit properly belonged to him; that there was nothing in the transaction calculated to excite suspicion that the funds used was the money of Winter; that they acted immediately for the protection of Winter on being informed by him that the money was his and had been fraudulently used by Coit; that they set up no adverse claim to the money, but hold it in trust for its rightful owner.”
    Defendants “ask for the protection of the court so that no second recovery can be had against them.”
    “ That the parties who are claiming the money, to wit, the said 8. W. Patehen and the said J. L. Harris & Co., plaintiffs in this suit, and the aforesaid Grinnan & Duval, plaintiffs in Ho. 3,369, now pending in this court, be compelled to interplead, and that it be determined, by judicial investigation, to whom said funds properly belong, for the protection of these defendants who have acted in good faith and without taint of fraud or wrong;” also asking costs and attorney’s fees out of the fund.
    The defendant, Patehen, was personally served with citation and copy of petition in Hew York, July 6, 1876, shown by affidavit of the party making the service.
    March 5, 1877, Grinnan & Duval intervened in this suit, Ho. 3.364. and set up in detail their claim in alleging the debt of Winter & Coit, suit against them, garnishment against J. II. Simpson & Co. in the suit No. 3,309; the answer of the garnishees.
    March 9, 1877, by amended petition in intervention, Grinnan & Duval alleged that they had, on the same day, obtained judgment against Winter & Coit for $1,603, and setting up facts showing their right to the $800, and asking judgment for it.
    March 9,1877, judgment by defendants was taken against Patchen and trial had before the judge, when the follow- ■ ing judgment was rendered:

      "This day this cause coming on to be heard, the plaintiffs, J. L. Harris & Co., appeared by their attorneys and announced themselves ready for trial. Came, also, the defendants, J. H. Simpson & Co., and announced themselves ready for trial, but the defendant, S. W. Patchen, though duly cited in terms of the law, came not, but wholly made default; came also, by attorney, J. S. Grinnan and 33. G. Duval," . . . and the parties having waived a jury and submitted the matters in controversy, as well of fact as of law, to the court,” etc. ... It appearing to the court that the fund of $800, now in the hands of defendants, J. H. Simpson & Co., is the property of Moses Winter, and that the defendant, S. W. Patchen, has no interest therein or claim thereto; . . . that Harris & Co. have no claim to it. . . . The recitals showed the proceedings in No. 3,369 in detail, and proceeded:
    “ It is ordered, adjudged and decreed by the court, that the plaintiffs, J.' L. Harris & Co., take nothing by their suit, and that defendants, Patchen and J. H. Simpson & Co., go hence and recover of plaintiffs their costs; further adjudged that J. H. Simpson & Go. pay over to the interveners, Grinnan & Duval, the sum of $800, in their hands, and that intervenors recover costs of plaintiffs; that Simpson & Co. retain $25 for their compensation for answering as garnishees in No. 3,369; costs for benefit of officers of court.”
    The defendants, Simpson & Co., took no exceptions; made no motion for new trial.
   Opinion.— The testimony was sufficient to support the judgment as to the ownership of the funds, and the garnishee proceedings. The allegations in the answer of J. H. Simpson & Co. were also sustained by testimony, except that the proceedings in the New York suit were only proved by parol, over objections of plaintiffs, and no details of its proceedings given. Simpson & Co. bring the case by' writ of error to the supreme court, assigning many errors, but substantially that-the judgment does not protect the defendants against a second judgment for the same money; and that the facts did not show funds in their hands subject to the judgment, and that proper proceedings ivere not taken to reach the fund.

The second and fifth assignments resist the right of Grinnan & Duval to recover, because the funds were not reached by the writ of garnishment. The facts seem to have been fully stated in the pleadings. It was shown that Simpson & Co. had been garnished in suit No. 3,369, of Grinnan & Duval v. Winter & Coit; that in the answer to the garnishment, and in their answer in this suit, No. 3,364, of Harris & Co. v. Patchen and Simpson & Co., they, Simpson & Co., had set up the facts and had asked that the several parties, naming them, should be required to interplead and settle the question of ownership. This request was substantially met by Grinnan & Duval intervening; and it was adjudicated that (1) Simpson &Co. had the fund; (2) that Patehen and Ilarris & Co. and Grinnan & Duval were each claiming it; (3) that Grinnan & Duval were entitled to the fund.

This settled all disputes and afforded Simpson & Co. the protection they asked. Iglehart Moore, 21 Tex,, 504, and cases cited.

The third assignment insists that the draft in Patchen’s hands could not be reached by garnishment of Simpson & Co, The rule as to garnishment of the maker of a promissory note is given by Mr. Sayles: “The maker of a negotiable note cannot be charged as garnishee of the payee of a note before its maturity; and he cannot be charged as such after its maturity unless it be affirmatively shown that at the time of serving the writ the note was the property of the payee.” Sayles' Prac. (2d ed.), sec. 396; Barrett v. Goldthwaite, 22 Tex., 234,

Here it was affirmatively shown that Patehen, the payee, was still the holder of the draft; also that Winter’s money was taken without his consent from his safe and used in the purchase of the draft; Coit, who obtained it and sent it to Patehen, was also party and concluded in the suit. The draft had been dishonored and the funds retained for investigation. Under the most stringent rule the pleadings set up facts authorizing the condemnation of the funds to the judgment of Grinnan & Duval,

3, The sixth assignment is: That “the pleadings and evidence show that previous to the institution of this suit Patehen had sued Simpson & Co. in Hew York and had stopped funds in Swenson’s hands; that they were parties to the suit, duly served with citation; that it was a proceeding in rem, and that the courts of Texas could take no jurisdiction over the funds sued for in Hew York. They contend that either this suit should be delayed until the result of the Hew York suit was known, or a conditional judgment rendered depending upon the result of that suit.” The answer to this is, that no such relief was asked in the court below.

The full prayer of Simpson & Co. is: “And these defendants ask for the protection of the court so that no second recovery can be had against them; that the parties who are claiming the money, to wit, the said S. W. Patchen, and the said J. L. Harris & Co., plaintiffs in this suit, and the aforesaid Grinnan & Duval, plaintiffs in Ho. 3,369, now pending in this court, be compelled to interplead, and that it be determined, by judicial investigations, to whom said funds properly belong, for the protection of these defendants, who have acted in good faith and without taint of fraud or wrong. And these defendants ask that they also recover all costs; and as they are in no wise to blame, and are in court without just cause, that they be allowed to recover against the fund in their hands suitable attorney’s fees for payment of counsel, whom they have been compelled to employ in this cause and in the Grinnan & Duval Case above named.”

While there was no formal interpleading, yet Grinnan & Duval, by leave of the court, intervened, setting out the facts relied on by them. This has been held equivalent to interpleading where law and equity are administered in separate courts. Iglehart v. Moore, 21 Tex., 504, and cases cited; Taylor v. Gillean, 23 Tex., 517.

Appropriate pleadings were on hie. It was determined, by judicial investigation, to whom the funds belonged.” As requested, out of the funds said by them to be “in their hands,” they were allowed to retain their expenses and attorney fee. They contemplated on such adjudication that the fund would be taken from their hands. They asked no postponement or action protecting against the suit in Hew York.

Had there been appropriate averments, sustained by testimony, showing a necessity of protection against the proceedings in Hew York, and it had been refused, there might be grounds of complaint if exceptions had been taken below. The case below seems to have been disposed of to the satisfaction of Simpson & Co. at the time.

4. The seventh assignment urges that the court did not extend proper protection to Simpson & Co., who were innocent stockholders. They had all they asked.

5. The fourth and eighth assignments question the sufficiency of the pleadings and evidence to show that any funds were in the hands of Simpson & Co. In this their prayer is a sufficient answer. It requested that they be allowed to retain expenses out of the fund in their hands.

6. The first and ninth assignments are general, pointing out no error, and will not be noticed. The parties may be in danger from the proceedings in the Hew York courts, but the pleadings do not present this question for revision.

Finding no error in the record, the judgment should be affirmed.


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    Charles Broches v. Mary A. Carroll et al.
    (March 19, 1880.)
    Homestead.— Single man not entitled to; attachment lien.
    Appeal from Gonzales county. Opinion by Quinan, J.
    Statement.— This was an action of trespass to try title, brought by appellant against C. C. Carroll and J. J. Humphries, for a tract of land containing seven hundred and sixteen acres. Pending the suit C. C. Carroll died, and Mary A. Carroll, claiming to be his widow, made herself party defendant to the suit. Humphries, in his answer, disclaims title and alleges that he ivas tenant for Carroll. Mrs, Carroll disclaims as to all the land except turn hundred acres, which she sets out by metes and bounds, and claims as a homestead.
    It appears from the evidence that on the 13th day of Hovember, 1871, appellant filed a suit for debt against C. C. Carroll and sued out at the same time an attachment, which was on the "same day levied on the land in controversy in this suit. That on the 14th day of May, 1872, a judgment was rendered in his favor against Carroll for §1,231.42, and a decree ordering the tract of land to be sold to satisfy the judgment; that on the 3d day of December, 1872, the land was sold by the sheriff and bought in by appellant for $1,246.70, and sheriff’s deed made to him. There was no controversy as to the regularity of any of these proceedings. It was also shown that C. C. Carroll left no children surviving him, and that be was insolvent. It was also shown that C. C. Carroll, who was then a single man, residing with his father, Jacob Carroll, left Texas in the spring of 1871 with a drove of four thousand five hundred beeves which he intended to sell in Kansas and return to Texas; that he had no other business in Kansas; that he sold his beeves in July, 1871, and received payment in money and bank checks payable about September 1, 1871, and that he received the money on them at that time; that he did not return to Texas; that in March, 1872, he married at Salt Lake City, in Utah, and returned to Kansas City in 1873, and he and his wife were floating between Denison, Sherman and other places until the spring of 1874, when they came to Gonzales county, where this land was situated, and moved a small tenement house on it and went into it, where they remained a month or two and then left it and remained away from it until Carroll died, after which Mrs. Carroll again moved upon the land. The only evidence offered to show that the land was a homestead was the testimony of Jacob Carroll that C. 0. Carroll, before he went to Kansas, being then a single man, had contracted with him to build a house on the land, and had declared it to be his intention to make his homestead on it; that he heard 0. C. Carroll was broke and took no steps to carry out the contract to build the house; that he received several letters from C. C. Carroll in relation to building the house, but never took any steps towards building the house. And also the evidence of Mrs. Mary A. Carroll that C. C. Carroll (her husband), in conversation with her, had declared it be his intention to return to Texas and make his homestead on this land as soon as he could settle up his business in Kansas City; that it was his and her intention to move to Texas and make their homestead upon this land. A jury was waived and the cause submitted to the court, who gave a judgment for appellant for five hundred and sixteen acres of the land, and in favor of the appellee, Mary A. Carroll, for two hundred acres claimed as a homestead. There was a motion for a new trial, several exceptions to introduction of evidence by plaintiff, and plaintiff appealed to this court.
   Opinion.— The errors assigned and relied on by the appellant in this case are that the judgment and findings are contrary to the law and evidence and that a new trial should have been granted.

The assignments are certainly indefinite, but they were filed before the adoption of the present rules, and we think there is such manifest error in the record as requires a reversal of the judgment.

1. On the 13th day of November, 1871, when the attachment on the land was levied, C. C. Carroll was a single map, had never been married, never had a family, and never lived upon this land. He therefore had no homestead upon the land sued for, and was not entitled to claim a homestead exemption thereon. Howard v. Marshall, 48 Tex., 481.

2. Appellant’s title to the land dates back to the date of the levy of the attachment. His right to a judgment ordering the sale of the land which he recovered, and under which he purchased, was fixed by the seizure. He could not be divested of the right so acquired by any subsequent acts of Carroll and wife. It is unnecessary, therefore, to inquire whether they ever acquired a homestead upon the land, though we should have no hesitation in holding that under the proof they had acquired none at the time of appellant’s purchase of the land. Baird v. Trice, 51 Tex., 557.

The judgment will be reversed and rendered for appellant for the land.


text:
    C. P. McCormick v. C. H. Cheveral.
    (March 19, 1880.)
    Trustee, appointment of substitute.— See this case for an instrument in writing held insufficient to constitute a valid appointment of a substitute trustee under a power contained in a deed of trust.
    Evidence, validity of.— Where-the power is given in a deed of trust to appoint a substitute trustee and such appointment is to be made by a written instrument, the construction of a written instrument relied on as being or not the document contemplated and provided for in the deed of trust devolves upon the court, and it is not competent for the jury to pass upon that question.
    Appeal from Harris county. Opinion by Walker, P. J.
    Statement.— This was a suit brought by the appellee against the appellant, of trespass to try title for the recovery of a certain tract of fifty acres of land; both parties claiming through Michael McCormick. The plaintiff claimed, through a deed from Michael McCormick dated 16th of January, 1868. The defendant claimed through a deed made by John Brashear, by virtue of a sale made by him, claiming to act as substituted trustee in the execution of a certain deed of trust made by Michael McCormick on the 23d day of April, 1866, conveying to Valentine Pool, trustee, his interest in said land, to secure a note made on the same day to Midiólas Murphy for §875, due twelve months thereafter. That instrument provided that if Michael McCormick failed to pay said note, Pool should sell the land after giving ten days’ notice by publication in a newspaper published in Galveston county. The deed of trust did not specify the county or place where the sale should take place. The land is situated in Harris county, where the sale under the trust deed was made.
    Among other provisions of the deed of trust was the following, viz.: “Should said Valentine Pool fail, refuse or neglect to act, then the said Micholas Murphy, or his administrator or assigns, shall have the power, and such power is hereby conferred upon him or them to appoint a substitute trustee, in writing, under his or their hand and seal.”
    The authority of Brashear to act as substitute trustee is contained in a letter from said Murphy, dated Galveston, December 6, 1870, to said Brashear, addressed to him at Houston, as follows:
    “ Capt. Boyce informed me that you wanted to know what I wanted done with the McCormick place. In answer I would say that I do not think that McCormick will ever be able to redeem it. So }tou will take the proper steps to close it out, and I hereby appoint you my attorney to settle the same; the papers are recorded here and in. Houston; any information 3rou ma}r want write me. I would like to be present when sold; you will please inform, me the day of sale, or send the papers that it is advertised in.
    “Tours respectfully,
    “ K". Mubphy.”
    The notice of sale was published by Brashear in a newspaper in Galveston, as required by the terms of the deed of trust, giving due notice of time and place, reciting in the body of it that he acted in the premises as substitute trustee duly appointed according to the terms of the deed of trust, and was signed by him in such capacity.
   Opinion.— If to render the appointment of a substituted trustee valid a written document for that purpose is essential, and also that the power and authority of such substituted trustee must be derived from that source, it unquestionably, when executed, is a document which must- depend, in respect to its validity to confer the power, upon the legal construction to be placed upon it. It is a question of law whether the instrument of writing thus made is, or is not, an appointment of the substitute trustee; as much so as it is a question of law whether the appointment contained in the deed of trust itself of the original trustee confers upon him authoritjr to do the acts which he may undertake to exercise.

“ The construction of a written document is matter of pure law, as it seems, in all cases where the meaning and intention of the framers is by law to be collected from the document itself. But where the meaning is to be judged of by the aid of extraneous circumstances, the construction is usually a question of fact for the jury. The construction of all deeds and other express contracts ..is matter of law for the decision of the court.” 1 Stark, on Ev., 525.

The construction of the letter, relied on as being, or not, the document contemplated and provided, for in the deed of trust, devolved upon the court, and it was not competent for the jury to pass upon that question. The deed of trust required, in order to constitute a substitute trustee, the execution of an instrument in writing under hand and seal; a document which should evidence and constitute the authority; and, without a writing, the authority to sell and pass title to land could not have existed under the statute of frauds. The instrument thus exacted was a dispositive document, as distinguished from a “casual” one. It contemplated formality and completeness for the purpose designed. Its grade or dignity as a document was not inferior to that of other formal instruments of writing, such as deeds and express contracts.

The defendant objected to the introduction of the letter referred to, in evidence offered by the plaintiff, because, among other things, it does not purport to be a power to sell; and also objected to the introduction in evidence of the deed from Brashear to Murphy, because said Brashear was not appointed substitute trustee in the manner and upon the condition provided for in said deed of trust; and the defendant asked the court to instruct the jury that the appointment of John Brashear as substitute trustee is not in compliance with the terms of the deed of trust, and that the sale made by said Brashear is void, and that the jury will find for defendant. The evidence objected to was admitted, and the charge which was asked was refused.

The court submitted as its charge nine special issues or inquiries requiring specific answers. The jury were not required to determine in any of them, however, whether the letter contained sufficient authority to constitute Bra-shear a substitute trustee. The jury responded categorically to the questions, which, in effect, amounted to finding that the parties to the deed of trust contemplated the trust sale to take place in Harris county; that the object of advertising in Galveston was because the deed of trust called for that action; that the parties to the deed of trust expected the bidders would attend the sale at Houston; they responded that, from the proof, no better price would have been bid in Galveston than at Houston (on which subject there was no evidence); that the land brought a fair price; was worth at the time of sale 01 per acre (no evidence on-the subject); that the sale was a fair one; was not advertised in Harris county; might have brought more if it had been; that G. B. McCormick paid M. McCormick nothing for the land in controversy; there was no consideration; that Pool refused to act as trustee. The defendant moved for judgment in his favor, notwithstanding the verdict, but judgment xvas rendered for the plaintiff.

The court, it seems, submitted issues to the jury, whereby to be enabled from their findings to construe the objects, meaning and intention of the parties to both the deed of trust and the letter from. Murphy, and being thus aided by the ascertainment of such facts through the special findings, it" gave full effect to the letter as a valid appointment, and like validity to the sale under it.

The court, not having submitted the case to the jury for a general verdict, but having required them to find upon issues, submitted a special verdict; neither the evidence admitted under objections, nor the refusal of the charge xvhich was asked,-had any injurious effect. The special issues did not relate to those matters. Consequently, the rulings referred to did not injure the defendant in so far as the actual findings of the jury were concerned.

The course which the case took placed the evidence before the judge without prejudice to the rights of the defendant, both in respect to the evidence and to the question of law embraced in the instructions refused, the court having rendered the judgment for the plaintiff on the whole case. We are of opinion that the letter allows of no other construction in law than that it did not by its terms make an appointment of a substitute trustee; it did not purport to do so; none other than an extravagant expansion of the meaning of plain words and sentences, aided by implications, can give the letter the effect contended for by the counsel for the appellee, or even to cause it to resemble that which is exacted by the requirement of the deed of trust, viz., a writing under hand and seal appointing a substitute trustee for the original one named in that instrument. The words used are: “You will take proper steps to close it out, and I hereby appoint you my attorney te settle the same.” The letter purports to be in response to an inquiry made through Capt. Boyce by Brashear as to what Murphy wanted to have done with the McCormick land or place; implying either some relation of agency already existing or expected to exist between himself and Murphy, relative in some way to Murphy’s claim against the land; thereupon he in effect constitutes Brashear his (Murphy’s) attorney to “ settle the same,” directing him as such attorney for him (Murphy), not the mutual trustee of both himself and McCormick, but his attorney to take the proper steps to “ close it out.” The duties and powers conferred authorized Brashear to act for Murphy as his attorney/ such attorneyship may have been that of an attorney in fact or an attorney at law, and the authority given empowered him to require the trustee to sell, and thus “ close out” the business in hand. It did not profess to do more; and if more was intended, its expression -was withheld from the writing. It certainly did not appoint Brashear a substitute trustee. The selection and appointment of an attorney for such purposes would have been consistent with Murphy’s situation, and the terms of the letter were appropriate to give effect to such an appointment. But, on the other hand, the intention to designate by writing a substitute trustee to execute a deed of trust would not suggest the appointment of an attorney. The office of an attorney, whether in fact or at law, is not that of a trustee, but the ordinary province of their duties, when requested, is, as is well enough described in the letter, “ to take proper steps33 to iS close out33 and 6C settle33 claims secured by deeds of trust. They are not trustees, nor has trusteeship any relation to any species or class of agencies, nor is it so understood in the common use of language.

In view of the construction we place upon the pretended power to appoint, we deem it unnecessary to pursue the discussion contained in the briefs of the counsel on the subject of the aid which equity affords in cases of a power defectively executed; here there was the total absence of any power even purported to have been given. Equity has no power to make agreements for parties or to substitute one agreement for another. It will aid a defectively-executed power, but will not create a power not attempted to be conferred. Besides,i6 courts of equity do not in all cases interfere and grant relief in cases of defective execution of powers, but grant it only in favor of persons in a moral sense entitled to the same, and viewed with peculiar favor, and where there are no opposing equities on the other side. 1 Story, Eq. Jur., § 95. Belief is granted ordinarily in favor of purchasers, creditors, a wife, a child and a charity; but not, as in this case, in favor of the donee of the power. Id.

Murphy, the donee of the power, it appears from the evidence, was the sole bidder at the trust sale. Pool testified that he never did fail or refuse to execute the sale under the deed of trust; was never requested to do so, nor was he at and about the time of the sale absent from his home at Galveston. Murphy’s testimony conflicts with this statement on cross-examination in different sets of depositions. In one he says he made the request of Pool to make the sale; in the other he says he has forgotten all about having done so; “ judges ” that he did so, because it was necessary. Murphy paid no money; his bid was credited on the note he held.

These facts do not recommend the transaction strongly to the interposition of equitable relief to support a power alleged to be defectively executed, and serve to illustrate the practical importance to Michael McCormick, the maker of the deed of trust, that bidders should have been furnished with far more satisfactory evidence of authority to sell than Brashear on that occasion was able to exhibit. There was no assurance afforded, had the instrument of writing been sufficient in form and substance, that the contingency of failure or refusal of the trustee had transpired to thereby warrant the appointment of a substitute. Prudent persons might well have declined to risk their money on such a precarious title, on such doubts and chances. The donee of the power and the sole bidder and beneficiary cannot hope for aid from equity.

¡Remarking upon the subject of the appointment of new or substitute trustees, it is said that ‘‘ no person interested could be advised to rest satisfied with the appointment of a new trustee under a power, unless the terms of the power clearly and distinctly authorize the appointment in the par-, ticular event which may have occurred. If there be the slightest doubt as to the validity or the application of the power to the case in question, the appointment, for the security of ail parties, should be made only under sanction of the court.” Hill on Trustees, 213.

The existence of the contingency which authorized tin-appointment at all, even by a, court, of a substitute trustee-it' seems, was at least questionable and doubtful, and the pretended appointment was even more so. The entire proceeding ought to be held void as to M. McCormick.

In regard to objections made that the sale was made in Harris county, and that the instrument which assumed to create the new trustee was not under seal, we do not deem it necessary to decide upon them; they do not present serious difficulty to the protection of a bona fide purchaser for value, nor, perhaps, any to the validity of the sale at all, if m other respects regular. Minuse v. Cox, 3 Johns. Ch., 446.

The deed of trust gave power to the trustee to sell, without designating the. place of sale; it was left to a sound discretion ; a purchaser for value would be protected; remedy for injuries from abuse of its exercise would lie against the trustee and also in remedial preventive judicial process. The sale at the court-house door in the county where the land is situated would prima faaie seem to be of all others the most proper plan.

The trustee in a deed of trust occupies the relation of agent of both parties to the instrument, and he should perform his duties with the strictest impartiality; he is clothed with the legal estate only for this purpose. Jones on Mortgages, 1770-1788. An attorney for the beneficiary appointed by the latter to “ close out ” and settle the debt is not an equivalent position, but one wholly inconsistent with the fiduciary character of such trust.

The plaintiff prays in the alternative by an amended petition for the enforcement of the lien to satisfy the indebtedness, evidenced by the note which he alleges that he owns;. otherwise the judgment would be rendered on this appeal definitively in favor of the defendant. The case will therefore be reversed and remanded for further proceedings.