text:
    John Vance v. John Saathoff.
    (No. 2864.)
    Verdict of jury.— The credibility of conflicting witnesses isa matter peculiarly within the province of the jury.
    Evidence — Practice.— Where the refusal of the court to admit in evidence an assessment roll is assigned as error, the bill of exceptions should state what, in fact, was contained in the assessment roll which was offered.
    Exceptions.—An exception is too vague and uncertain that does not show the evidence offered with sufficient certainty to enable this court to perceive that the testimony, if it had been allowed, was material.
    Appeal from Medina county. Opinion by Walker, J.
    Statement.— This suit was brought for rescission and. cancellation of a sale made by Saathoff to Vance, of two stocks of cattle as they run in the range, which were designated by brands “ J S” and “U L,” and not by specified enumeration, nor at a certain rate per head. The contract of sale was for the sale of the above-named brands or stocks of cattle, for sums of money agreed on, in gross, for each of the respective brands. The plaintiff claimed a rescission of the sale on the ground of false and fraudulent representations made by the defendant as to the number of the cattle in each of said brands, alleging that the misrepresentations in that respect were grossly false, and that the plaintiff relied upon the truth of them, and was induced thereby to make the purchase of said cattle.
   The facts alleged by the plaintiff showed a deficiency in numbers of the cattle so great, although the cattle were not sold per head, nor under a contract which implied that the stocks should contain any particular and exact number, as to constitute, evidently, if true, a substantial and material consideration in the proper construction of the contract. The issues between the parties were formed, and the case was submitted and determined in the court below, upon the theory that the facts stated in the plaintiff’s petition constituted a good cause of action, which entitled him, if sustained by sufficient evidence, to the-relief asked for. These allegations were denied by the defendant, and the cause was submitted to the jury under a charge from the court which submitted, in effect, as the controlling issue whereon to determine the cause, the truth or falsity of the allegations made in the petition; the substantial, main, leading issue being on the merits of the plaintiff’s case of imputed fraud and misrepresentation, as has been stated.

The evidence was as opposite and conflicting as to the number of the cattle belonging to those brands or stocks as can well be imagined.. The testimony, so far as may be judged from the record, was given on both sides by witnesses of good opportunities for knowledge of the facts detailed by them. Some of the witnesses in behalf of the defendant, from their previous relation to the cattle, it may be supposed, had better means of accurate information on the subject than any of the plaintiff’s witnesses. The defendant testified in respect to the terms of the contract and the cii’cumstances which attended the making of it, and he denied, in his .testimony, that be had made to the plaintiff the representations imputed to him as to the number of the cattle. The plaintiff’s testimony directly supported the allegations of the petition that the defendant represented that there were from six hundred to seven hundred head of cattle in the “ J S ” brand, and from seven hundred to eight hundred in the “ TJ L ” brand. A witness for plaintiff, Merritt, testified that he was present and heard the conversation about the trade, and he stated the facts identically as they were detailed by the plaintiff, in nearly every important particular. The defendant’s testimony denied the correctness of nearly or quite all of the statements just referred to, expressly negativing the idea that any representation was made by him, or fact stated, from which it would be fairly implied that he meant to lead the plaintiff to believe that the stocks of cattle contained any particular number. There was evidence by the defendant’s two sons, who professed to have an intimate knowledge of both stocks. One of them, Foke Saathoff, testified that' he attended to the “ J 8” stock until the sale to the plaintiff. He éstiraated them at five hundred or six hundred head, and the “U. L.” stock at six hundred or seven hundred head. Folke Saathoff, the other son, stated he had known the “ J S ” stock since he was a boy; has known the “ H L ” stock for seven or eight years; that in 1872 the former numbered five hundred or six hundred, the latter six hundred or seven hundred. One August Mummer testified that he estimated the “ J S ” stock at near six hundred in the year 1872, and the “U L” at a still larger number. It was proved that cattle (stock cattle) were worth $4 or $5 per head in 1872.

Verdict and judgment was rendered for the defendant, from which the plaintiff has appealed and assigns several grounds of error, among which is, in effect, that the verdict of the jury is contrary to the law and evidence. The brief before us for the appellant urges, with zeal and ability, that the evidence in this case does not warrant the verdict, and insists upon a reversal upon the facts. If anything can be said to be absolutely settled in law it is that it is beyond the province of the court to interfere wfith the fair exercise by the jury of its right and duty to judge and determine the credit which they see proper to attach to the statements of all the witnesses, to weigh all the evidence before them, and to find their verdict in accordance with their conclusions upon it. This is emphatically a case which involves the application of these indisputable principles. The rules which separate the respective provinces of court and jury in respect to the finding of the jury upon the facts are too well known, too thoroughly recognized by all lawyers and all courts, to render a reference to cases or authorities appropriate even. Their statement and acceptance go together. The jury were fully authorized to give credit to the witnesses of the defendant, and the right to do so is not qualified by the considerations urged against their conclusions, on account of the witnesses’ relationship to the defendant, nor their supposed personal feeling in his behalf, nor the mere conflict of their statements with those of other witnesses possessing no better means of information as to the facts than they had. Bor is it sufficient to authorize an interference with the peculiar province of the jury, that the judge before whom the cause was tried would even have found differently upon the evidence. The credibility of conflicting witnesses is a matter peculiarly within the province of the jury, and their verdict will not be disturbed merely because the weight of evidence may seem to preponderate against the verdict. Mitchell v. Matson, 7 Tex., 4. See 19 Tex., 101; Mason v. Russell, 8 Tex., 228; 23 Tex., 641; 11 Tex., 321; 24 Tex., 288; 5 Tex., 496; 2 Tex., 428; id., 323; id., 499.

These rules have application to the district court, but where that court has exercised its discretion over the subject, and refused to grant a new trial, the supreme court will not revise its action unless where it appears that that discretion has not been warrantably exercised. In order to justify this court in setting aside a verdict, where a new trial has been refused, it is not sufficient that it does not appear to be right; it must appear to be clearly wrong. Stroud v. Springfield, 28 Tex., 676; Tuttle v. Turner, id., 775, and cases cited. Also, Owens v. The State, 35 Tex., 362.

The supreme court has held that where there was evidence tending to the proof of the conclusion at which the jury arrived, and not a very great weight of evidence clearly proving the contrary, the verdict will not be disturbed. Latham v. Selkirk, 11 Tex., 321. This, however, is not the rule for the district court. Id.

On the trial the plaintiff offered to show by the tax-rolls of Medina county for the year 1871 the defendant’s assessment of stock then rendered by him for taxation, which was objected to and excluded because irrelevant and not showing the true number of cattle owned by defendant. This ruling is assigned as error. The bill of exceptions does not state what was contained in the assessment which was offered. An exception is too vague and uncertain that does not show the evidence offered with sufficient certainty to enable this court to perceive that the testimony, if it had been allowed, was material.. See Styles v. Gray, 10 Tex., 503.

The main charge given by the court is not complained of. It could not be objected to By the- plaintiff, as it presented the law as favorably for his cause of action as the plaintiff’s own legal propositions for a recovery required or allowed.

The evidence is conflicting, and we conclude, upon the whole case, justice has been attained in this case, so far as forms of legal proceedings are concerned.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    W. P. Langdon et al. v. David M’Canless.
    (No. 314.)
    Trespass to try title.
    Parties.
    Vendor’s lien.—In a suit to enforce the vendor’s lien a subsequent vendee in possession and claiming under a recorded deed is a necessary party; and the purchaser at a foreclosure sale to which suit such vendee was not a party cannot maintain an action of trespass to try title against such vendee.
    Writ of error from Navarro county. Opinion by Watts, J.
    Statement.— On the 2d of April, 1861, E. S. Tate and wife purchased from David McCanless, agent of the heirs of S. F. McCanless, six hundred acres of land, paying therefor $45 cash, and a promissory note executed by W. A. Lockart, payable to F. E. Tate, for $1,410.42, bearing ten per cent, interest, dated January 1, 1861, due on the day after its date, which note Tate and wife indorsed by written assignment, guarantying the payment thereof, and stating that it was for the purchase money for six hundred acres of land. The deed did not retain a lien for the unpaid purchase money. ■
    On the 2d of June, 1864, Tate and wife sold the six hundred acres of land to W. S. Langdon, father of plaintiffs in error, for a consideration paid of $2,400.
    David McCanless instituted suit for collection' of the note against W. A. liOckart and Tate and wife, but did not make Langdon nor his heirs parties thereto, praying in his petition for foreclosure of the vendor’s lien against the six hundred acres of land; recovered judgment decreeing the land to be sold to satisfy the debt at the October term, 1866, of the district court of Navarro county, whereupon venditioni exponas was issued April 4, 1868, and the land sold by the constable, acting as sheriff, April 5, 1868, David McCanless becoming the purchaser at his bid of $100, and at the July term, 1871, of the district court brings this suit of trespass to try title against the plaintiffs in error, who were in possession and claiming the land as the heirs of their deceased father, W. S. Langdon; the petition was in usual and ordinary form in such action. On the 20th .day of November, 1871, the defendant answered by plea of “ not guilty,1’ and general denial.
    The cause was tried at the November term, 1872, and resulted in a verdict and judgment for defendant in error, and against the plaintiffs in error for the land. The court charged the jury as follows:
    “That in all sales of real estate, if the vendor does not take personal security, then the law presumes the vendor’s lien to exist, and it requires no proof to establish the same, further than the claim sued on was for the purchase money. But when the vendor takes personal security the burden of proof rests on him to show that the vendor’s lien was retained, and in this case the jury will look to the evidence and determine whether or not this lien was so retained, and if they so believe they will find for the plaintiff. And the jury will also look to the evidence to see and determine whether or not Langdon, at the time of purchase, had knowledge of the existence of said lien.”
   Opinion.— The view we take of this case renders it unnecessary for us to notice the assignment of errors. It is evident that this case was tried in the court below upon the idea that if there was a vendor’s lien upon the land in controversy in favor of the McCanless heirs, by reason of the indorsement of the Lockart note by Tate, and that Langdon had notice of this lien at the time he purchased the land from Tate, that then McCanless acquired the superior title by reason of his purchase at the foreclosure sale, and wa,s entitled to a recovery.

Tate conveyed the land to Langdon by a warranty deed, acknowledging the payment of the purchase money, which was on record long before the institution of the suit by the McCanless heirs against Lockart and Tate, for the amount of the note and to foreclose the lien upon the land.

The repeated decisions of the supreme court has fully determined that a purchaser of the legal title from a vendor who has not paid the purchase money, when such purchaser’s deed is of record, w.ill not be affected by a foreclosure of the lien in a suit to which he was not a party, and which suit was instituted after the record of his deed. And especially is this true when the legal title was in the vendee, and, as in this case, passed from him to such purchaser. Bybee v. Johnson, 45 Tex., 509; Sample v. Irwin, 45 Tex., 567; Peters v. Clements, 46 Tex., 114; Pitman v. Henry, 50 Tex., 357.

The court, in the case of Carter v. Attoway, 46 Tex., 108, held that, “ In a suit to enforce the vendor’s lien, a subsequent vendee, in possession and claiming under a recorded deed, is a necessary party.” In the same case it was held, as against a purchaser of whose claim there was notice, a sale made under a decree of foreclosure against the original vendee, and to which suit such purchaser was not a party, is not sufficient to pass title to the land; and that this rule is not in any way affected by the fact that such purchaser had notice of the lien at the time of his purchase.

The title to the land in controversy passed from Tate and was vested in Langdon by the conveyance from the former to the latter,- and this title could not be divested by any proceeding or suit between the holder of the Lock-art note and Tate, to which neither Langdon nor his heirs were parties. As between McCanless and Langdon’s heirs, the latter held the title to the land, and in the absence of a proceeding to divest the same out of them he did not acquire, as against them, such title by reason of the purchase at the foreclosure sale as would sustain an action of trespass to try title.

In this case Langdon’s heirs having established their heirship, and having produced the deed from Tate to their father, were entitled to a judgment against McCanless, and the court erred in the charge with respect to the latter’s right to recover in the event there .was a lien on the land, and that Langdon had notice of the lien at the time of his purchase from Tate. This was a fundamental error going to the foundation of the plaintiff’s case, and is not waived because it is not assigned as error. Carter v. Attoway, supra.

Reversed and remanded.


text:
    R. P. Coryell v. Chas. D. Holmes et al.
    (March 9, 18—.)
    Conveyance of land, requisites of.
    Subscribing witnesses.— Subscribing witnesses not necessary to the validity of a conveyance of land in this state in 1843.
    Registration.— Conveyance proved by one subscribing witness was sufficiently proved to be entitled to registration.

      Appeal from Galveston county. Opinion by Quinan, J.
    Statement.— This was an action of trespass to try title by appellant to recover the southwest quarter of out-lot 13, in the city and county of Galveston, and the only question made by the record, and which is assigned as error by appellant, was the ruling of the court below in excluding the deed from Antonio Officers to J. Bump, because it was not entitled to record without being witnessed by two witnesses.
    On the trial below a jury was waived and the case submitted to the court. By agreement of counsel both parties deraigned title from a common source, to wit, The Galveston City Company. The appellants, the plaintiffs below, have made out a.perfect chain of title from the records of Galveston county to the appellant, Coryell, provided the deed from Officers to Bump was a valid deed, properly admitted to record, or the record has been validated by subsequent legislation, both of which propositions are maintained by appellant.
    The appellees claim title as heirs of Officers. The deed from Officers to Bump bears date 13th of July,' 1843, and is signed by P. Edmonds as subscribing witness. It was proved by him as witness before Oscar Parrish, clerk of the county court of Galveston county, and tiled for record and recorded on 14th of July, 1843.
   Opinion.—To determine the question presented it will be proper to review our statutes upon the subject of registration before and at the time when this instrument was recorded. The first act passed by the Bepublic of Texas, changing the rule in the conveyance of land, is found in the act of December 20, 1836, entitled “An act organizing the inferior courts and .defining the powers and jurisdiction of the same.” The thirty-fifth, thirty-eighth and fortieth sections of said act are as follows:

“ Sec. 35. The clerks of the county courts shall b.e the recorders for their respective counties, and it shall be their duty to record all deeds, conveyances, mortgages and other liens, and all other instruments of writing required by law to be recorded in their offices, which are presented to them; provided one of the witnesses of the number required by law shall swear to the signature of the signer or he himself shall acknowledge the same, which shall be certified by the recorder and form part of the record; and all deeds, conveyances, mortgages and other liens shall be recorded in the county where the property is situated.”

“Sec. 38. All titles, liens, mortgages or other color of title, before they can be admitted upon record, must be proven by at least two subscribing witnesses, if living in the county, and if not so living in the county, then the handwriting shall be proven, either before some county judge or before the clerk of the county court in whose office such record is proposed to be made; and in all cases the certificate of any county judge, that the said witness appeared before him and acknowledged his signature, or that the handwriting of the same was duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter, such title, lien, mortgage or other color of title upon record; and the said clerk for recording the same shall be entitled to charge and receive the sum of twenty cents for every hundred words.”

“ Sec. 40. Ho deed, conveyance, lien or other instrument of writing shall take effect as regards the interest and rights of third parties until the same shall have been duly proven and presented to the court, as required by this act, for the recording of land titles.”

The next statute we have upon the subject is that of January 19, 1839, which provides: “That it shall be the duty of the clerks of the county courts to record all deeds, conveyances, mortgages and other liens affecting the titles to land and immovable property situated within the same, which shall be presented to them for record; provided one of the subscribing witnesses shall swear to the signature of the signer, or he himself shall acknowledge the same, which proof or acknowledgment shall be made either before some county court or chief justice of the same, or before the clerk in whose office such instrument is proposed to be recorded, a certificate of which shall be made upon such instrument by the proper officer and become a part of the record. And all laws contrary to or conflicting with this act be and the same are hereby repealed so far as they conflict with or are contrary to the same.”

On the 16th of March, 1840, the act adopting the common law of England went into effect, and on the same day, also, went into effect the act concerning conveyances, “ That no estate of inheritance or freehold, or for a term of more than five years, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by writing sealed and delivered. And any instrument to which the person making the same shall affix a scroll, by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed; provided, the person making the same shall, in the body of the instrument, recognize such scroll as having been affixed by way of seal; nor shall such conveyance be good against a purchaser for valuable consideration not having notice thereof; nor any creditor, unless the same writing be acknowledged by the party or pártíes who shall have sealed and delivered it, or proved by two witnesses to be his, her or their act before the county court of the county in which the land conveyed, or some part thereof, lieth; or in the manner hereinafter directed, and be lodged with the clerk of the county court to be recorded.”

By the third section of this act it is provided: “ That in no case shall livery of seizin or the placing the purchaser in possession be necessary to pass any freehold estate in lands.” By the fourth section it is provided that all bargains, sales and other conveyances whatever of any lands, etc., shall be void as to creditors and subsequent purchasers for value without notice, unless acknowledged or proved for record and lodged with the cleric for record, but the same as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or without valuable consideration, shall, nevertheless, be binding.” In the sixteenth section of this act a form of release is given which should be valid to convey lands, “ if the same be subscribed by two or more credible witnesses,” but it is in express terms provided that “other forms not contravening the laws of the land shall not be invalidated.” At the next session of congress was passed the act of limitations, which has been styled a statute of repose, and which, by its twentieth section, was doubtless intended to obviate the difficulties which had sprung up under the conflicting provisions of the registration laws. It is provided by this act: Section 80. Be it further enacted that any grant, deed or instrument for the conveyance of real estate, or personal or both, or for the settlement thereof in marriage, or separate property or conveyance of the same in mortgage on trust to uses, or on conditions, as well as any and every other deed or instrument required or permitted by law to be registered, and which shall have been heretofore registered, shall, from the passage of this act, be held to have been duly registered with the full effects and consequences of the existing laws, provided the same shall have been acknowledged by the grantor or grantors, maker or makers, before any chief justice of the county court, or before any notary public, or before the clerk of the county court in whose office such record is proposed to be made, or proved before such officer by one or more of the subscribing witnesses, and certified by such officer; any obscurity or conflict in the existing laws to the contrary notwithstanding.

And the twenty-first section of the act provides: That every grant, deed or instrument, mentioned in the twentieth section of this act, hereafter to be made and recorded, shall be duly registered in the office of the proper county, upon the acknowledgment of the parties or party signing the same, before the register, or clerk of the county court of that county, or chief justice of the county, or a notary public thereof, or any associate, or the chief justice of the supreme court, or proved by a subscribing witness before any such officer, and certified by him for record; and if it be so acknowledged and certified there need be no subscribing witnesses.

These are all the provisions of our laws which were in force previous to and at the date of the execution of the deed from Officers to Bump and which affect the questions involved in this case.

From an examination of these provisions of the statutes we think these conclusions fairly deducible:

1. That at that date any instrument in writing purporting to convey lands, sealed and delivered, or using a scroll for a seal and recognizing it to be used as such in the body of the instrument, was a valid conveyance of lands, good against the grantor and his heirs, and against purchasers for valuable consideration who have notice thereof, whether registered or not.

2. That no witnesses were necessary to give validity to the same as a conveyance at common law7, and under the statutes of uses the common forms of conveyance were' feoffment, gift, grant, lease and release and bargain and sale.

"Witnesses were not necessary to any of these forms of conveyance. Rodgers v. Worthington, 11 Minn. 438; 1 Serg. & Rawle, 72; 1 Haywood, 205; 3 Washburn, 247, 358, 275; 2 Blackstone’s Com. 307; Comyn’s Dig., Fact, B. 4; Thatcher v. Finney, 7 Allen, 149; Fitzhugh v. Cochrane, 2 Wend. 429; Greenleaf’s Cruise on Real Property.

A feoffment conveyed the largest estate in lands; there were no subscribing witnesses to the deed, but it was accompanied with livery of seizin, and by the third section of our statute livery of seizin was abolished. By the first section of the same statute a deed signed, sealed and delivered is clearly recognized ats a good conveyance without witnesses, valid against the grantor and his heirs and those claiming under them with notice. ' And so by the fourth section of the act the deed of bargain and sale is expressly recognized as a-valid conveyance of lands, binding as between the parties and their heirs, and as to all subsequent purchasers with notice thereof or without valuable consideration.

It is true that by the same act “ a form or purport of a release55 is given which, if executed with two subscribing witnesses, should be a good conveyance in fee, but it is expressly provided, as we have seen, “that any other form, not contravening the laws of the land shall not be invalidated.” This provision is not imperative or exclusive in its terms. It must be read in connection with the system of laws adopted at the same instant which effected so radical a change in the jurisprudence of the country which recognized other modes of conveying lands, and it was doubtless designed simply to furnish, in the new state of things, a form of conveyance for ready reference and use which would certainly, in cases, be effective. While the first and other sections of the act were copied from the Virginia code, this section of our “act concerning convejmnces” ivas taken almost verbatim from the South Carolina act of 1796; with this significant change, that while the South Carolina act concludes: “This act shall not be so construed” as “to invalidate the forms heretofore in use in this state,” our statute uses the words quoted: “Any other form not contravening the laws of the land shall not be invalidated.”

In Craig v. Penson, 1 Cheves, 280, it was held b)r the court, O’Neal, J., dissenting, that a deed with only one subscribing witness was not a valid deed to convey land; but it will be seen that the decision “ turned upon the usage of the country.” The opinion says: “ It would seem that according to the laws of England subscribing witnesses are not essentially necessary to the validity of a deed;” but it continues: “I have examined many forms of deeds presented by conveyances, and all of them, without exception, have a clause of attestation in the presence of at least two subscribing witnesses. Such has been the universality of the practice in this country that all my brethren concur in saying that they never saw an effectual deed for the conveyance of land (unless this one be one) which was executed in the presence of subscribing witnesses. An instrument of this kind has been held good as an agreement in writing to authorize equity to direct a specific performance.”

It is to be noted that the South Carolina statute, so far as we have been able to find, contains no such provision as the first section of an “act concerning conveyances;” and without this wre cannot perceive that the decision of that courtis applicable here as of controlling wreight; and wTe think it will be found that in those states in which subscribing witnesses are held to be essential, it is because of some statute which, like our Revised Statutes, now prescribes it to be necessary.

But if wre admit that Officer’s deed to Rump is not in all respects a regular conveyance, it is certainly a contract respecting lands evidencing the equitable title to the same in Rump. It could be recorded and so have all the incidents and effects as notice of the most regular deed. Sec. 7. It was such an instrument as equity wrould decree a specific performance of. Under the statute of limitations it would constitute color of title and would avail as a link in a regular transfer under the sovereignty of the soil.

As said by Chief Justice Wheeler in Martin v. Parker “ An action of trespass to try title can be maintained in our courts upon an equitable as upon a legal title. And although, after a great lapse of time, a court of equity wdll not entertain a suit by the vendee against the vendor for specific performance of a contract to convey, yet it is not to be inferred from this that a good and valid title, sufficient in law to enable the holder thereof to maintain and defend an action for the property, if it be wanting in some formality essential to constitute it a legal as contradistingnished from an equitable title, will in eonsequénce by the lapse of time become inoperative and ineffectual as a title. The application of such a doctrine to a title which invests the holder with the legal ownership and absolute power of disposition of land we think inadmissible.” 26 Tex., 254.

If we are correct in these conclusions it would seem to follow that we must look upon the several provisions of our statutes respecting subscribing witnesses to deeds, not as affecting the "validity of the instrument, but simply as regulations prescribing the mode to be observed in their registration so as to charge third parties with notice. For this purpose at one time it was necessary to the valid registration of a conveyance of lands that it should be proved by two witnesses before the county court. At another it was required that it should be proved by one of the subscribing witnesses. And at the time of the execution of the deed from Officers to Rump it was sufficient that it be acknowledged by the grantor before some officer authorized by law to take acknowledgments, in which case there need be no subscribing witnesses, or proved by a subscribing witness before such officer and certified by him. The exact words of the act are, “ proved by a subscribing witness.” Officers’ conveyance was attested and proved by a subscribing witness, and we think, coming within the exact terms of the law, it was sufficiently proven to be entitled to registration.

But it is insisted by appellees that from the use of "the words “subscribing witness, and one of the subscribing witnesses,” in the same act in connection with the registration, xve must infer that there must be txvo witnesses. It may be said that this is the most natural construction of the language, and we may even concede that this was probably the common understanding, but we do not think we are driven of necessity to such an interpretation. The custom had, perhaps, been to secure the attestation of txvo witnesses; the form given in the statute seems to render it proper, if not indispensable, and the plural, in speaking of witnesses to deeds, xvould naturally enough have been used. But the phrase used, as we have seen, in the section is “ a subscribing witness.” The purpose is to prove . the instrument for registration. It could undoubtedly be proven upon a trial, and would be admissible upon the oath of one witness to its execution, though never registered. It could be proved for record by one witness. And we are at a loss to conceive why further proof should be required to register than to admit in evidence, or what additional efficacy it could jmpart to the notice which it was the purpose of registration to effect, that it bore upon its face the attestation of a dozen dumb subscribing witnesses. In view of the mischief which would unquestionably result from the construction contended for by appellee, the litigation which would inevitably ensue, the disturbance and unsettling of the land titles of the country, and the clouds it would cast upon many, and equitable and hitherto unquestioned, titles, we would hesitate long before yielding to it our assent. Menley v. Zoigler, 23 Tex., 88.

But, however this may be, we entertain no doubt that, proven as it was and recorded (if it was imperfectly proven and recorded), it was validated as a recorded deed, and properly admissible in evidence under the provisions of the act of 9th of February, I860, article 5022. That article reads as follows:

“Art. 5022. All such instruments which shall have been acknowledged or proven before any officer named in the foregoing section of this act, and which shall afterwards be recorded in the proper county, or certified copies thereof, shall be evidence in the courts of this state as full and sufficient as if such acknowdedgment had been taken, or proof made, in accordance with existing laws. This act shall not be so construed as to affect or bind in any manner any person or party with constructive notice of the existence of any deed, or other instrument of writing, as a recorded deed or instrument, except in the future and after, the taking effect of this act, unless such person or party would have been so affected or bound with such notice had this act never been passed.”

This article was designed to heal the imperfections in the registration of instruments recorded before that time. As is said by Wheeler, C. J., in Butler v. Dunagan, 19 Tex., 559; in speaking of a similar provision in the law of 1841, o which we ft ave cited, “ it was a healing and enabling statute and should be construed liberally.” And so construing this ■section with reference to the supposed imperfections in the registration of the Officer deed, we do not doubt it removes all difficulty in the decision of the question presented.

We conclude that the Officer deed was a valid convey- ' anee of the lands; that it was properly admitted in evidence as a recorded instrument.

The judgment of the court below was therefore erroneous, and will be reversed and the cause remanded.

       26 Tex., 254.


text:
    McCreary et al. v. Waco Lodge No. 70, I. O. O. F.
    (No. 337.)
    Mechanics’ and material-men's lien.—Statute should be com- " plied with.
    Service.— Service upon the chairman of a building committee of an Odd Fellows lodge, ivho possesses no other powers than those pertaining to that particular undertaking, is not such service as the statute requires.
    Jurisdiction.— Where the district court had jurisdiction of a suit at the time of its institution, but afterwards, by a new constitution, exclusive jurisdiction was conferred upon the county court during the pendency of the suit, the district court should not dismiss, but continue until the legislature makes necessary provisions for its transfer.
    Appeal from McLennan county. Opinion by Walker, P. J.
    Statement.— This suit was brought by the appellants against the defendant, appellee, on an account for lumber amounting to §435.79, furnished by them for the purpose of building a lodge room or hall for the defendant. The plaintiffs sued for the amount alleged to be due and to en= force their lien as material-men, under the statute giving a lien to mechanics, laborers, artisans, etc., upon the said building and the lot on which the same is situated. The petition was filed September 22, 1875, and judgment was rendered June 13, 1876. The defendant demurred to the plaintiffs’ petition. The demurrer was sustained and the cause was dismissed.
   Opimos.— Among other questions involved upon the demurrer, those two which are indicated by the recitals of the judgment itself, alone are conclusive of the merits of this appeal and decisive of it.

The petition as amended alleged that, to fix and secure the lien, the plaintiffs had served the duplicate of the bill of particulars, which had been duly recorded under the statute, upon the defendant “by handing it to M. 13, Herring, as chairman of the regularly appointed and fully authorized building committee of defendant, on the same day that the other duplicate was filed for record as set up in original petition.” The court held that such service was not such service upon the defendant as the law contemplated as being sufficient to fix and secure the lien. The constitution of 1869 made provision for liens of mechanics and artisans only. See sec. 49, art. XII, Const. 1869.

The constitution of 1876 extended the lien protection to material-men as well as to artisans and mechanics. See sec. 37, art. XYI, Const. 1876. The lien of a person who sold lumber for a building to another, under the constitution and laws in force in the year 1874, when the account sued on is alleged to have been contracted, had no possible legal' existence by virtue of the mere sale and delivery thereof, except it were obtained under the statute which gave it. To acquire it'thereby it is thoroughly settled by decisions of our own state, and quite as fully and with as much uniformity of construction in other states where similar laws exist, that the statutory requirements must be strictly complied with. See Wood v. Thomas, decided by us at present term and approved by the supreme court, and the authorities there cited. The plaintiffs rely upon a verbal contract; in such case the statute which gave a lien to any person or firm (art. 7112, P. D.) . . . who may furnish material . . . to erect any house, building, etc., provides in the third clause of the first section as follows: ei If the contract, order or agreement be verbal, a duplicate copy of the bill of particulars shall be made under oath, one to be delivered to the clerk to be filed and recorded as provided for written contracts, and the other to be served upon the party owing the debt.” The fourth clause provides thus: “Both the contract and the account, when filed and recorded as above provided, shall be accompanied by a description of the lands, lots, houses and improvements against which the lien is claimed.” The fifth clause is as follows: “When such contract or account is filed and recorded, it shall be deemed sufficient diligence to fix the same from the date it is filed for record and secure the lien provided for.”

It is manifest, from the terms of the statute, that the plaintiffs’ right to acquire a lien upon the building depends wholly upon their compliance with its exactions, whatever those requirements may consist in. Very certain it is, that, having no lien independent of the statute, they cannot acquire it under and by virtue of its provisions, otherwise than upon the conditions which it prescribes. See Phillips on Mechanics’ Liens, sec. 338; Lee v. Phelps, 64 Tex., 367, and approved by supreme court; Tremont Hotel Co. v. Rosamond et al., post, p. 682.

It became essential, therefore, in order to fix the lien, that plaintiffs claim, that they should have made the service contemplated by the statute on the corporation known and described by the petition as “ The Waco Lodge, Ho. 70, Independent Order of Odd Fellows.” The ordinary rule of law, in the absence of statutory designation to fix notice upon a corporation, is to give it to its principal executive official, its president or other like official. The statute regulating móchanics’ liens, etc., does not provide the mode of service otherwise than requiring “ the duplicate copy of the bill of particulars to be served upon the party owing the debt.” A corporation has no personal existence and identity ; it acts through, and is bound by, the acts of its officers and agents. Through them it contracts debts and obligations; it is represented by them. Through them it sues and defends actions. It is not, however, any officer who may be connected with the affairs or transactions of a corporation, or any agent or employee of a corporation, who is thus constituted the authoritative representative of that artificial personage. It may, however, like a natural person, become bound and liable for acts done and contracts made by its agents acting within the scope of their delegated authority, and may thus be bound, under similar circumstances and upon the same principle, for acts and contracts of certain of its inferior'officers or employees. The admission of this ■proposition does not, nevertheless, qualify the general maxim that none other than the principal officers through whom its corporate functions are controlled and directed, represent and stand for, as its representative, the corporation. Our statutes which regulate proceedings in courts contain full and specific provisions for making legal service of process on corporations, by the service of citation on the various officials or agents, as the case may be, who are designated in those acts. . The act in force at the accrual of the account sued on provided that, “in suits against any incorporated company or joint-stock association, the citation may‘be served on the president, secretary or treasurer of such company or association, or upon the local agent representing such company or association in the county in which suit is brought, or by leaving a copy, of the same at the principal office of the company during office hours.”

Whilst it may be true that the above-quoted statute is not a specific direction or authority for the service of a copy of an account to fix a lien, it may properly be referred to as furnishing a proper guide to a correct construction as to the true rule applicable to this case, especially so as the statute seems to be intended to extend rather than to limit the ordinary rule as to the necessity of serving the president or other principal essential officer of a corporation, etc., in order to render the corporation subject to the court’s jurisdiction. M. B. Herring, it is not pretended, was the local agent representing this corporation in the sense and meaning of the law above quoted; indeed the petition alleges that said corporation was “resident in the county of McLennan,” where suit was brought, and it is to be inferred had there its place of buisiness and residence of its principal officers, and the petition asks for process against its treasurer, naming him.

The capacity in which M. B. Herring is alleged to have acted does not correspond with that of any of the corporate officers who are recognized ordinarily as necessary to represent an incorporate association. Service on him as chairman of a building committee would constitute him at most only an agent to.bind the corporation for the purposes for which he was selected.

A corporation would at least have had but formal and constructive notice by the delivery of the claim of a professed creditor, which is to have the effect by delivery of a lien upon its property to other persons than the principal or corporate officers to whom the corporation has intrusted the control of its interests, and who alone, it may be supposed, are familiar with them, and who are directly responsible to the stockholders for the management of its concerns.

We are of the opinion, therefore, that the lien was not fixed and secured by the service 'had upon the chairman of the building committee, and but for the error of the court in dismissing the suit as to the entire cause of hction. we would award that the judgment was correct.. The district court had jurisdiction of the amount sued for when the petition was filed; but under the constitution of 1876, which had gone into effect at the date of the trial, the amount sued for was within the exclusive jurisdiction of the county court, so far as related to the sum of money claimed to be due. District courts, however, had under the jurisdictions of those courts, exclusive jurisdiction of liens upon real estate. Doubtless the court held that the petition was insufficient to enforce the lien, and the amount being less than $500, dismissed it for want of jurisdiction. See sec. 27, art. V, Const. 1876.

We award that the judgment below be reversed and reformed and that the cause be transferred from the district to the county court, and that the clerk of the district court duly certify the record in accordance with the statute law regulating the transfer of civil causes according to the laws of the fifteenth legislature for the transfer of civil causes to the county court.


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    Ryall v. Griffin.
    (No. 2946.)
    Continuance — Diligence.— After answer filed and no diligence shown, it is not error to overrule application for continuance for non-joinder of parties; at this stage of the case such a proceeding is too late.
    Opinion by Quinan, J.
    Statement.— Griffin sued Eyall upon several notes, among others one for $2,186, gold, with ten per cent, interest from March 1, 1871, which is credited with $950.
    This note, it is alleged, was given for the purchase money of a tract of land described in his petition, and he prays a foreclosure of the vendor’s lien and sale of the land in satisfaction thereof.
    The defendant answered the general denial. At the second term of the court after service of the writ, he amended his answer, pleading several payment and offsets, and set up that plaintiff was indebted to the heirs of Giltner, who lived in Alabama, $461.25, for which they had a lien upon the land;' that he had written to them to send the note to some reliable attorney to intervene in this suit or accept service on a cross-bill, so that the respective equities of the parties might be adjusted and the sum due plaintiff be applied to the satisfaction of their lien, but they replied refusing to intervene or become parties to this suit. He further avers that if he is forced to pay plaintiff he will be in imminent danger of being forced to pay for said land twice.
    The defendant filed an affidavit for a continuance, stating that the facts in his answer were substantially, if not literally, true; that it would be unjust to force him to trial without making the Meunshucers (Giltner’s heirs) parties to the suit; and that if plaintiff recover a judgment against him "foreclosing the lien on the land with the lien of the heirs of Jacob Giltner still outstanding, he will be placed in immediate danger of suffering irreparable injury. This application was overruled by the court.
    The case was tried by the court, a jury being waived, and judgment rendered for the plaintiff for §819.30, and that the note sued on was given for part of the purchase money, and retains a lien on the land (describing it), and condemning the land to be sold to satisfy the said sum of $819.30, the same being due the plaintiff ... as the purchase money of the land.
    From this judgment the defendant, liyall, sued out this writ of error. He assigns for error the action of the court in, 1. Overruling his motion for a continuance. 2. Refusing to make the heirs of Giltner parties. 3. Rendering judgment for the plaintiff. 4. Foreclosing the vendor’s lien; 5. Adjudging both the notes to constitute a lien. 6. Ordering the land to be sold to satisfy a note not given for the purchase money. 7. That the judgment is excessive.
    There is no statement of facts nor bills of exception except to refusal to continue the case, .which appears by the entry on the minutes.
    The defendant in error suggests that this appeal is taken for delay.
   Opinion.— 1. It was not error to refuse to continue the cause; the application was made too late, and no reason shown why proper diligence was not used. But the application had no merit. For aught that appears Ryall bought the land with the incumbrance and with a warranty deed, and it is not shown that he is in danger of eviction, or that his vendor is not able to make good any loss he may suffer in consequence. If he feared injury on account of the outstanding debt to the Giltner heirs and circumstances entitled him -to any larger relief than his warranty deed gave him, his remedy was to bring the money into court and perhaps demand further security. But he could not be permitted to delay the plaintiffs’ case until he made publication and brought into court parties who resided out of the state and were unwilling to participate in the suit. Terrell v. De Witt, 20 Tex., 206.

2. The other assignments of error are not supported by the record. The judgment shows that the amount for which it was rendered was part of the note for the purchase money of the land, and doubtless the facts proven on the trial established that fact, and whatever other facts were necessary to support the judgment. It may have been sjaown that the defendant was entitled to no offsets, that there were no outstanding liens on the property, and that plaintiff owed the Giltner heirs nothing. There is no error in the judgment, but we think this writ of error was manifestly prosecuted for delaj7.

The judgment affirmed with ten per cent, damages.


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    Tremont Hotel Co. et al. v. Rosamond, Milam & Co.
    (No. 1192.)
    Mechanic’s lien, how secured.— In order to fix and secure a mechanic’s lien, in addition to other statutory requirements, it is essentially necessary that a duplicate copy of the contract or bill of particulars be furnished to the party owing the debt.

      Appeal from Galveston county. Opinion by Quinan, J.
    Statement.— This suit was brought on the 27th day of April, 1878, by Samuel L. Rosamond, Collin "Milam and Robert A. Milam, copartners, composing firm of Rosamond, Milam & Co., plaintiffs below (appellees here), in the district court of Galveston county, againt the Tremont Hotel . Company, a private corporation, organized under the general laws of the state of Texas, under an act concerning private corporations, approved April 23,1874, whereof J. H. Burnett was president, a resident of Galveston, and having its principal office and property in the county and city of Galveston, to recover of said Hotel Company an account for brick, alleged to have been sold to the said Hotel Company between the 15th of September, 1877, and 1st of October, 1877, and due 1st of January, 1878, for §822.98, with interest at eight per cent, from 1st of January, 1878, furnished to" said Hotel Company by plaintiffs to build a cistern on the property of said Hotel Company, lots 9, 10 and 11, in block 443, in the city of Galveston, and to foreclose their lien as material-men on the cistern built of their bricks; the metes and bounds of which are set out in the amended original petition, filed by leave in lieu of original petition, filed April 27, 1878, and filed June 10,.1878, and on the lots contained in the boundaries; and alleging that in order to recover and fix said lien all the steps required by law to fix the samó, and the filing of the contract, sworn to (the same being verbal), in the office of the county clerk of Galveston county for record, on the 19th day of April, 1878, and the service of a copy on J. H. Burnett, president, on the same day; and that the contract was duly recorded by the clerk on the 23d day of April, 1878, praying citation and for judgment against the Hotel Company for the sum of §822.98, and eight per cent, interest from 1st of January, 1878; and for a decree foreclosing their lien on the cistern and the lots contained within the bounds occupied by the cistern, as set out; for an order of sale of said property and such other orders as the law directs. June 15, 1878, the defendant disclaimed and alleged the purchase of the property May 28, 1878, by Marx & Kempner, and the divesting of their title by the sale to them under trust deed set out.
    October 22, 1878, Marx & Kempner came in and filed answer, claiming the property as theirs, bought by them under trust deeds, and demurred to the plaintiffs’ petition, and claimed to have been innocent purchasers, in good faith, without notice of plaintiffs’ claim; admitted the existence and organization of the Hotel Company, adopted the statements in the answer of the Hotel Company, and admitted and set up their purchase on the 28th of May, 1878, under trust sales.
    October 28, 1878, plaintiff filed first supplemental petition and excepted to the answers of Marx & Kempner, and set up the filing and record of the claim, 19th of April, 1878, and the institution of their suit, 27th of April, 1878; and at that time the Hotel Company was the actual owner of the Tremont Hotel property; and if the title was ever divested, the same was divested thereafter on the 28th of May, 1878, more than a month after suit filed, and prayed that said answer be stricken out, and denied that, at the time of the filing of said claim, 19th of April, 1878, or the filing of the suit, 27th of April, 1878, the said Marx & Kempner had any right or title to the Tremont Hotel property, as owners, mortgagees or lien holders, and purchased the same on the 28th of May, 1878, with knowledge, actual and constructive, of plaintiffs’ lien, and allowed in their purchase price for the liquidation of said lien, alleging the value of the property at $100,000. That the lien of Ball, Hutchings & Co. was but $20,000, and that the pretended lien to secure $100,000 of bonds, dated May 1, 1877, was not an actual Iona, fide debt, and said bonds were not negotiated, and not due for five years, and only a small amount of interest, not exceeding $10,000, was due, and that the note to the Texas Banking & Insurance Company for $23,500 was at no time a lien on the property of the Hotel Company as against these plaintiffs’ claim, and prayed oyer of the deeds of trust under which defendants claimed said property; and if defendants purchased- they purchased at public auction, and were not innocent purchasers in good faith, and denied all the allegations of the answer, and prayed judgment enforcing their lien as claimed in their original amended petition, and for costs.
    November 2, 1878, the defendant, the Tremont Hotel Company, filed amended original answer, being a general denial of plaintiffs’ allegations. The case was tried by jury, asked for by plaintiffs, December 27, 1878, and the jury found a verdict for plaintiffs for $888.28 against the Tremont Hotel Company, and we further find said sum to be a lien on the cistern described in plaintiffs’ petition; and judgment was entered on the verdict in favor of plaintiffs as a firm for the sum so found by the jury against the Tremont Hotel Company, with interest thereon at eight per cent, from date of judgment, December 27,1878, and a decree foreclosing the lien on the cistern, describing it by metes and bounds, as in the petition, and against all defendants, and order of sale to issue, sheriff to put purchasers at sale in possession, and such purchaser to have right to remove the same thirty days from date of purchase, and execution against the Tremont Hotel Company for any balance unpaid.
    Marx & Kempner moved for new trial December 28, 1878, and amendment. The Tremont Hotel Company also moved for new trial December 28, 1878, and amendment; which motions were overruled, and the Tremont Hotel Company excepted and gave notice of appeal in open court, and the motion of Marx & Kempner was also overruled, and they excepted and gave notice of appeal in open court, and all defendants assigned errors, 14th of February, 1879, gave appeal bond in the sum of $1,900, 13th of February, 1879, and brought the case to this court and assign errors.
   Opinion.— The above is a very full statement of the case. The testimony is embodied in the opinion. The assignments of error are sixteen, relating chiefly to the judge’s charges, and the sufficiency of the. testimony, presenting questions whether a lien could he created on a hole in the ground and brick put in it; whether such a lien would be superior to the previous liens fixed upon the land.

This suit was brought by Rosamond & Milam Bros, against theJTremont Hotel Company and Marx & Kempner, for the recovery of a debt due by the Hotel' Company to them for brick furnished for building a cistern on their property, and to enforce a.“mechanic’s” lien thereon, Marx & Kempner being made parties as the present owners of the property. The mechanic’s lien law of 1876 declares that any firm who shall furnish material to erect any improvement shall have a lien thereon, and on the land necessarily connected therewith, to secure payment for the material.

If the contract, order or agreement be verbal (in order to secure thé lien), a bill of particulars of the material must be made under oath, one to be delivered^to the county clerk and recorded, and a duplicate to be furnished to the party owing the debt.”

To entitle the plaintiffs to a recovery it was necessary to establish the fact that the Trémont Hotel Company was the party owing the debt. The proof in the case shows that the brick were sold to Burnett & Kilpatrick. The testimony of Milam, one of the plaintiffs, is that the brick were furnished to Burnett & Kilpatrick in September, 1876, who were the ostensible owners of the Tremont Hotel; that he made out a copy of the account and delivered it to J. H. Burnett, who said it was correct, and he promised to pay it as soon as collected from the state penitentiary. He did not know who were the actual owners of the property when the brick were sold. What he meant by ostensible owners” was, that Burnett & Kilpatrick were in charge of and running the hotel. He did not contract with Burnett as president of the Hotel Company; did not know who constituted the company. When he first presented the bill after it became due, it was made out against Burnett & Kilpatrick. He had then been selling brick to Burnett & Kilpatrick for use on other property. When he made' out the bill to fix the lien, he made this bill out against the Hotel Company, under the advice of a lawyer.

Burns, a witness for the plaintiff, proved that the brick were brought into the cistern; that he counted them for Burnett & Kilpatrick. Look, for the plaintiff, also testified that he built the cistern for Burnett & Kilpatrick, and they paid him for the work. Kilpatrick, for the defense, testified that he was a member of the firm of Burnett & Kilpatrick ; that that firm engaged in building the Tremont Hotel, and were bound to construct the cistern; that his firm bought the brick from plaintiffs, and contracted to pay for them, and intended to do so; that Milam dealt with them for the brick, and had sold them other brick for the hotel, for which they had paid them. When the brick were bought, J. H. Burnett was president of the Tremont Hotel Company for the year 1877. The firm of Burnett & Kilpatrick had agreed with the Hotel Company to furnish the cistern at their own expense, as they had previously contracted to build it.

Burnett & Kilpatrick were the owners of the hotel property in April, 1877. . In April, 1877, they conveyed the property to the Tremont Hotel Company. It was then subject to a trust deed to secure a debt to Ball, Hutchings & Co., made by Burnett & Kilpatrick in August, 1876.

The Hotel Company executed a trust deed upon it in May, 1877, to secure a debt to the Texas Banking & Insurance Co. Under these trust deeds the property was sold in. May, 1878, and purchased by Marx & Kempner.

It is very clear from this testimony (and we have given all which bears upon the subject) that the plaintiffs did not establish their demand against the Tremont Hotel Company. The Tremont Hotel Company was not the party owing the debt. And unless the duplicate copy of the account for material bé delivered to “the party owing the debt,” no lien upon the property is fixed or secured under the law. The delivery of the copy of the account to J. H. Burnett as president of the Hotel Company in April, 1878, did not make the Hotel Company liable for Burnett & Kilpatrick’s debt, or fix any lien upon the property.

It is suggested by the plaintiffs that the Hotel Company became liable for the debt because Burnett & Kilpatrick bought the property from Runga, Sealy & Rosen burg, and contracted to build the cistern, and conveyed the property to the Tremont Hotel Company, and that Burnett & Kilpatrick were the Hotel Company. There is no proof of this fact (if it ivere material). It is said, too, that Mr. Willis told Milam his debt ivas perfectly safe to his firm on account of the statutory lien. But this was but his expression of opinion, and not as president of the Insurance Company. And so it is said that Burnett, when president of the company, acknoAvledged the debt, but he did not so acknowledge it as the debt of the company, nor could his acknowledgment so made bind the company to pajr Burnett & Kilpatrick’s debt.

There is not a scintilla of proof in the transcript to show that the Hotel Company, in any Avay, became bound to pay this debt of Burnett & Kilpatrick’s.

It was manifest error, therefore, for the judge to charge the jury that: “It would make no difference Avhether the company made the contract or not by authorized agents if the company knew at the time the bricks Avere bought that they were purchased for the use of the cistern, and were used by the company, and by subsequent action ratified the contract and recognized it as a Adalid obligation thereon,” in that the same was not justified by the evidence. Keither their knowledge of the purchase nor of their use in the cistern, nor the use of the cistern, could make them liable, and there is no proof of any ratification or recognition of the obligation as binding upon them. And for this cause the judgment should be reversed.

Whether a lien could be created upon the brick wrought into a cistern, built of brick in the ground, a permanent fixture if anything can be considered such, need not be L.itermined, but the question arises: If they can be removed , all under the state of case presented here, forming but a part of the whole work, we could see no objection to the enforcement of the lien upon them because of the liens or conveyances of the property previous to the time when they were-so wrought in. The conveyance of real property is a conveyance of it from the center to the zenith; but it is not perceived that "it would be a violation of any vested right acquired by Ball, Hutchings & Co., or the Texas Banking & Insurance Co., by their conveyances, that the builder of improvements upon the property subsequently should have a lien upon those improvements for the value of the material used in making them.

It does not lessen the security as it was conveyed to them, and would seem not objectionable if the material or the improvement can be removed without injury to the estate as originally conveyed.

It is not necessary to consider the other errors assigned. What we have said is applicable more or less to all of them, and is decisive of the case,

B.EVERSED AND BEMANDED,


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    Isaac Taylor, Adm’r, v. Travis Barron.
    (No. 3970.)
    Administrator — Community property.
    Judgment.— Omission of name in may be amended.
    Appeal from McLennan county. Opinion by Quinan, J.
    Statement.— We adopt the statement of this case as presented by the plaintiffs in error. It is sufficient to a proper understanding of the points presented in the briefs and argument, with some brief additional statements from the record.
    The defendants in error, who were plaintiffs below," brought their suit in the district court of McLennan county as heirs at law of their mother, Mary E. Barron, to recover her community interest in three hundred and twenty acres of land patented to their father, Thomas II. Barron, assignee of John Morrow. The plaintiff in error and Mary J. Barron (the latter being Thomas II. Barron’s second wife), as administrators of Thomas II., deceased, and the children of the second marriage, and a great number of other persons alleged to be holding by purchase from Thomas II., and as trespassers, were made parties defendant.
    The original petition alleged the seizin and death of plaintiffs’ ancestor, their heirship, the entry and claim of the defendants, and prayer for a partition. By amended petition filed October 7, 1876, plaintiffs, by amendment, alleged that their mother left surviving her other children, to wit: A son, John M. Barron, who died in 1849 without children or widow; Thomas J. Barron, who died in 1847, leaving a widow, now plaintiff; Mrs. Anderson and a child, now plaintiffs, Mrs. Robuck; a daughter, Raney, mother of the plaintiffs; Powers, a son, David S., and a son, Mi-lam, who died in 1863, leaving a widow and child, both of whom are dead. That the widow died last, leaving Stephen Lott her heir.
    The defendants D. T. and H. J. Chamberlin and B. F. Harris, purchasers from Barron, are the only defendants who answer separately by name.
    August 7, 1874, a number .of the defendants answer. The plea, after naming a number of the defendants, says: “such other of the defendants, if any, as were served with citation prior to the return day of the August term, 1874, of the district court of McLennan county.” In this plea they plead various matters in support of their rights as purchasers from Thomas H. Barron. D. T. Chamberlin pleads his purchase from Barron and various matters in support of it.
    The administrators of Thomas H., deceased, were served with citation March 26, 1875.

      June 3, 1876, there was a plea filed by Messrs. Herring, Anderson & Iielley, and Evans & Davis, “attorneys for all of the defendants who have been cited and are not represented by J. 0. Walker and Flint & Graham, and who have not answered for themselves,” without naming any of the defendants. This plea adopts D. T. Chamberlin’s special answer and the answer of the defendants filed August 7, 1874.
    There is no statement of facts.
    Judgment was rendered for the plaintiffs against the administrators of Barron’s estate and the children of his second marriage, and for the rest of the defendants, the-plaintiffs having dismissed as to some twenty-eight of them before verdict.
    Isaac Taylor, the now sole administrator, sues out and prosecutes this writ of error. There are numerous assignments of error, but we need notice only those upon which the plaintiff in error relies here in argument. These are embraced in two propositions, which he contends should work a reversal of this judgment: 1. That the verdict of the jury and the judgment are not responsive to the pleadings. 2. That the verdict and judgment- are uncertain in. description of the land recovered by the plaintiffs or defendants.
    As to the first proposition:
    The pleadings show that Thomas H. Barron was twice married. For the defendant, Taylor, his administrator, and the children of the second marriage, or their representatives, there is no special answer filed. They simply unite in the answer of their co-defendants theretofore filed. The other defendants in possession answered that they had purchased, in good faith and for value, the lots they held; denied that the land was community of the first marriage, but th at if it was, that Thomas Barron had sold the lots they held and applied the proceeds to the discharge of community debts of the first marriage, and that there remained of the land in any event enough unsold to satisfy the claim of the plaintiffs of an average value.
    An amended petition of plaintiffs sets out that in truth there were no debts of the first marriage; that Thomas Barron had disposed of large amounts of property of the first community after the death of his wife; that his estate was insolvent; that there remained unsold of this land not enough to satisfy their undivided half interest in it, but conceded the equity of defendants, the purchasers, to retain the lots purchased by them, if, in partition, the plaintiffs could otherwise receive their fair share of the land. The plaintiffs averred that they had never received anything from their father’s estate and would inherit nothing from it.
    Upon the issues raised by these pleadings the verdict was: “We, the jury, find for.the plaintiffs in this case as against the administrators of Thomas Barron, to wit (naming them), and against the children of Thoma.s BL Barron, who are defendants in this suit, to wit (naming them), and we find that Thomas H. Barron has sold more . of the land in controversy than his full interest in the land and what was necessary to pay all community debts; and that the plaintiffs are entitled to all the land in controversy which Thomas II. Barron has not sold to the defendants in this suit. We also find for all the defendants -who hold and claim title by deeds to parts of the land in controversy from and under Thomas H. Barron.”
   Opinion.— From this brief statement of the pleadings we think it is sufficiently obvious that the finding of the jury was not unwarranted by them. The facts found were fairly putin issue and they were proper subjects of consideration. The plaintiffs sued for their mother’s part of this land, and that it might be partitioned to them. Whether they were entitled to it. and how they were entitled to it in this land, who else were owners of the land and the equities they had, whether their father’s administrator or his heirs had any remaining interest in it, or whether the sales he had made exhausted his share of it, were questions necessary, to be determined to enable the court to grant the relief prayed for. And assuming, as we must assume in the absence of a statement of facts, that the testimony sustained the. findings, the judgment of the court upon it is not only unobjectionable, but the very judgment which should have been rendered. The judgment is for the defendants claiming under deeds from Thomas Barron, and for the plaintiffs against Taylor, administrator of Thomas Barron, and the heirs of his second wife for the land in controversy, excepting the unsold portions, and decreeing that “ all the right and title which the estate of Thomas H. Barron ever had in said land remaining unsold by him be divested out of him and invested in said plaintiffs.”

How the plaintiffs, as between themselves, do not ask partition of this land, and if they did it is not appellant’s business to complain that they did not get it. What they asked was that their mother’s share be set apart to them, and what the judgment effects is that it is so set apart to them. The facts developed upon the trial showed, and the verdict of the jury established, that partition had, in effect, been made of the interests of their father in the land by his conveyance to the defendants or their grantors; that the remainder belonged to the plaintiffs, whether much or little, valuable or otherwise, and it would have been an idle thing to have ordered a writ of partition to issue. The court had ample power to determine by its judgment and set apart to them their land.

The second objection urged, that the verdict and judgment are uncertain, admits of a very brief reply. The administrator of Barron only prosecutes this writ of error. Without doubt the verdict and judgment are certain as to the estate he represents. He has no interest in the land and is not concerned in any difficulties which may arise in executing the judgment between the other parties to it.

So far as Stephen Lott is concerned in the judgment, he is embraced in the general term plaintiffs; he recovers his costs; and if his name, in copying them into the judgment entry, by oversight has been omitted, he can have it amended. The plaintiff in error is in no way affected by this omission.

Affirmed.


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    J. C. Hamilton v. Richard Flume et al.
    (No. 330.)
    Partition — Parties.— In suits for partition all persons interested should be made parties.
    Guardians.— Guardians ad litem appointed by the court to represent minors should be sworn and bonded.
    Mortgage, when a sale.—If debt is not canceled it is held a mortgage, whether the grantee so regard ic or not.
    Errors.— Fundamental errors, whether excepted to or not, cause for reversal.
    Appeal from" Travis county. Opinion by Quinan, J.
    Statement.— This was a suit for partition of a lot in Austin, of which Hamilton claimed to be the owner of one-half, against Richard Flume and others, children of Mrs. Klenart, deceased, alleged to be owners of the other half.
    The defendants were minors, a guardian ad litem was appointed for them, and they answered, claiming that they owned seventeen-twentieths of the lot, and that the conveyance under which Hamilton claimed the lot from Klenart was only intended as a mortgage. On the trial the judge submitted special issues to the jury, to which they responded:
    1. That the deed from Klenart to Hamilton was a mortgage. 2. That the separate interest in the lot of Amelia Klenart was seventeen-twentieths and the interest of Henry Klenart three-twentieths. 3. That Hamilton had notice of the separate interest of Amelia Klenart when he received the deed from Klenart. 4. That the consideration of the deed was a pre-existing deed from Klenart to Hamilton.

      Upon this verdict judgment was rendered that Hamilton take nothing by his suit and that the defendants be forever quieted in their claim to seventeen-twentieths of the lot against Hamilton. From this judgment this appeal is prosecuted. There are several errors assigned: 1. That the court erred in permitting Henry Klenart to testify. 2. The remaining assignments question the sufficiency of the testimony to warrant the verdict and judgment.
   Opinion.— 1. It is to be observed that Henry Klenart was not made a party to the suit; that the minors were represented by a guardian ad litem, appointed by the court, not bonded or sworn. Ho exception, however, ivas made on this account in the court below, nor is it assigned for error. On either grounds we have concluded that the judgment ought to be reversed.

2. The judgment is manifestly erroneous. It is not easy to perceive what the question, whether Klonart’s deed to Hamilton was an absolute deed or intended as a mortgage, had to do with the case before the court, or what interest the minors defendant had in its determination. Still less can we perceive by what right they set up for Henry Klenart a claim which he did not set up for himself. He did not intervene in this suit. And so far as, in a legal way, the fact can be noticed, he is content that the deed to Hamilton shall rest, as it purports to be, absolute.

If it be admitted that the deed was a mortgage, then Klenart, being the owner of the fee, ivas a necessary party to an)T suit in which his interest or share in the lot was determined, and the adjudication of seventeen-twentieths to the minors in this case, in a suit to which he was not a party, was necessarily not merely erroneous but a nullity. If Klenart’s interest in the lot ivas three-twentieths, and he had conveyed that to Hamilton, and Klenart himself is not here impeaching that conveyance and praying that it be declared a mortgage, obviously Hamilton was entitled to recover that three-twentieths.

For the reasons given the judgment must be reversed. But it may be useful, in view of what may present itself on another trial, to say:

1. That there is no proof here that Hamilton had any notice of Mrs. Klenart’s separate interest in the property. The law presumes it to be common property, and the only presumption to be drawn from the fact that the deed to Klenart was also to his wife was that the property was community. Cooke v. Bremond, 27 Tex., 458; Kirk v. Navigation Co., 49 Tex., 213.

2. That the deed from Klenart to Hamilton may be shown, though absolute upon its face, to have been intended as a mortgage is unquestionable. But the proof to that effect ought to. be very clear, certain and explicit. Moreland v. Barnhart, 44 Tex., 282. The testimony of Klenart, the grantor, alone is not sufficient to establish that fact. He is, to be sure, a competent witness, but his testimony should be received with many grains of allowance. He should be corroborated by other witnesses, or strong and cogent circumstances. It is not necessary that we should express any opinion upon the sufficiency of the proof in this case. The testimony was conflicting, but that would not prevent the jury from finding one way or the other, as they might credit the witnesses. Had they inclined to credit the statements of Klenart rather than those of the opposing parties’ agent, it cannot be doubted that there were some circumstances of corroboration in the proof. The fact that Hamilton held a note of Klenart and wife, and a deed of trust to secure it upon the whole lot, and that he continued to hold them after the execution of this deed of Klenart, which, it was alleged, was the consideration for it and made to take up that debt; that Klenart remained in possession of the property, paying rent, $12.50 a month, w'hich seems to be about the interest at one per cent, a month on the debt, as Klenart says, and the further fact that when some time after the execution of the deed Hamilton and Klenart unite in a lease of the premises to Helton at $50 a month, the whole rent is made pajmble to Hamilton, are altogether consistent with the idea of a continuing subsisting debt. Indeed, we cannot well see how this last circumstance can be explained on any other hypothesis. If Hamilton owned, in good faith, but half the property, why should the whole rent be paid to him ?

Again, the note of Elen art and wife continued in the possession of Hamilton’s agent. When produced at the trial it is marked across the face canceled, but when that was done the party in whose possession it was was wholly unable to state. But the deed of trust is not canceled, nor is anything put on record to show that it was not still an incumbrance on the property.

It is said the test to determine whether the conveyance is a sale or a mortgage, in cases of this sort, is to be found in the question whether the debt was discharged by the conveyance. If the debt be not canceled equity will regard the conveyance as a mprtgage whether the grantee so regard it or not. Jones on Mortgages, 267, 273.

Bevebsed and bemanded.


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    Thomas M. Attoway v. J. N. Still et al.
    (November 1, 1879.)
    Injunction.— Judgment on bond could only embrace ten per cent, damages for delay, and the value of the property levied upon.
    Exemption.— Must be alleged that claimant is the head of a family.
    Appeal from Busk county. Opinion by Walker, J.
    Statement.— This suit was instituted by the appellant, Thomas M. Attoway, against the appellees to enjoin the sale under levies made by virtue of two executions against himself in favor of the appellees, on divers articles of property, viz.: One forty-four saw gin stand; two pulleys; one short belt; a grist mill, and one Wo. 3 Victor cane mill and evaporator. The ground upon which the injunction is sought rests solely upon the allegation in the bill that the property referred to was, at the time of levy, exempt from execution, claiming the several articles above described to be “implements of husbandry, used by him as such in carrying on his farm, and exempt from levy and seizure, under any legal process, when said levy was made and not subject to sale under the law for debts of any kind,” etc.
    The petition alleges actual damages in the sum of $300, and claims also vindictive damages in the sum of $500, and concludes with the prayer that the appellees be perpetually enjoined from selling said property, and for general and special relief in the premises.
    The answer to the bill traversed the plaintiff’s allegation that the property described were implements of husbandry used in carrying on a farm, and denied that they, from their nature and use, could be so regarded, and consequently that they are not embraced within the exemption claimed by plaintiff. The answer alleged further, that the gin stand, grist-mill, pulleys, etc., bad not been used by the plaintiff for more than two years preceding; that at the time of levy they were disconnected from any gin-house, mill-house,.or from any running gear whatever, but that they, at the time of levy, were together with the cane mill and elevator in. an out-house, which, alike with the other articles of property, had not been in use for two years or more. Wherefore the answer claims that all of said property is subject to execution' and sale under the laws of the state of Texas, and subject to such debts, etc. That this writ of injunction was sued out by plaintiff for no other purpose than to hinder and delay defendants in the lawful ■ collection of their just debts, to their great damage.
    The answer concludes by asking that the injunction be dissolved, and that the sheriff proceed to sell, etc., and that they recover ten per cent, damages on the amount enjoined, for the unlawful delay caused by plaintiff in suing out this writ of injunction, costs of suit, and for general relief in the premises.
    On the hearing of the cause the injunction xvas dissolved, and it xvas further adjudged that defendants recoxmr of plaintiff, and J. B. Fears and W. P. Fears, his sureties in his injunction bond, the sum of $500, xvith all costs of suit and usual order for execution to issue.
    The injunction bond xvas gixren in the sum of $1,000, and filed August 18, 1879. Writ of injunction issued same day. The executions xvere issued from the county court of Busk county on the 22d day of July, 1879, on judgments against plaintiff Attoxvay, in favor of defendants, xvhich had been rendered in said county court in June of the year last aforesaid.
    Plaintiff moxrnd for nexv trial, which was overruled, from which he and his sureties appeal because:
    1. That the court erred in dissolving the plaintiff’s injunction on the motion of defendants in the injunction.

      2. The court erred in giving judgment against the plaintiffs in injunction and his sureties on the injunction bond for the full amount of the bond; the only judgment to which defendants were entitled, if any, xvas that the injunction restraining the sale of the property be dissolved, and ordering the officer to proceed with the sale of the property levied upon, and to have axvarded judgment for the cost accruing from the issuance of the injunction, together with such damages as the defendants in injunction may have shown they had actually sustained.
    3. The court erred in giving judgment against plaintiffs in error for $500, the full amount of the injunction bond, contrary to law and evidence in the cause; this not being an injunction of the collection of a debt, but an injunction restraining the 'sale of the property alleged to have been taken in execution.
    4. In refusing to grant to the plaintiff a new trial.
   Opinion.— The errors complained of in the second and third assignments of error must be deemed sufficient to reverse the judgment. Whether tested by the relief asked for by the appellees in their answer; by the amount of the bond, viz., §1,000, and any supposed power of the court to render judgment upon a dissolution of the injunction against the principal and sureties for the amount specified in said bond, or whether measured by any evidence in the case tending to establish the value of the property levied on, or by any evidence tending to establish a breach of the conditions of said bond by showing damages sustained by the appellees by reason of the improper suing out of the writ of injunction, the invalidity of the judgment for the want of such support and basis for its rendition requires its reversal.

The case made by the plaintiff in this injunction suit sought not to restrain the enforcement of the judgment as against any other property than that which he maintained was exempt from enforced sale under execution, and he prays only that the appellees be enjoined from selling the same; the defendants’ answer, as has been seen, asks only in effect that said property shall be sold, and for ten per cent, damages on the amount enjoined, and for general relief. From a careful consideration of the cases decided by our supreme court, without deeming it essential in this case to enter upon a discussion or a review of them, we are satisfied that, under the issue as presented by the record, upon a dissolution of the injunction, the judgment to be rendered against the sureties on the plaintiff’s injunction bond, at the most, could only embrace ten per cent, damages for the delay and the value of the property thus levied upon. And, indeed, whether or not the sureties upon the bond would be even thus far liable, we do not mean to express an opinion, nor is it necessary that we should do so. Ferguson v. Herring, 49 Tex., 126.

We are not satisfied to follow without question the authority (with the implications arising) of the case of Turley v. Brewster, 33 Tex., 188, deciding that the injunction, relieved the property from levy and restored it to the defendant in .execution, substituting in its place the security of the injunction bond.

There was no evidence tending to show the value of the property levied upon, nor relating to an}7 damage sustained by the defendants arising from the suing out of the writ of injunction, notwithstanding which, on the dissolution of the injunction, the court adjudged against the plaintiff and his sureties $500. The statute provides that, “ upon the dissolution of the injunction in whole or in part, when the collection of money has been enjoined, if the court be satisfied that the injunction was obtained only for delay, damages shall be assessed by the court at ten per cent, on the amount released by the dissolution of the injunction, „ „ . and in all other cases the damages shall be assessed by .a jury sworn for that purpose; if neither party require a jury the damages may be assessed by the court.” If the court included in-the judgment the ten per cent, damages on the amount released (which expression, however, seems more accurately referable to the amount of the judgment enjoined than to the value of property released to execution and sale), whether applied to the one or the other, the judgment in the one instance xvould be largely too great, and in the other would be wanting the support of any testimony showing the value of the property thus released on which to base the percentage; thus, if applied to the amounts of the judgments which aggregated in June, 1879, $1,046.65, it is evident that ten per cent, thereon would, at the date of the trial, have but little exceeded one-fifth of the amount of the judgment rendered; and, if the basis of judgment referred to the value of the property released by the dissolution of the injunction, then there is furnished in the evidence no testimony relating to the value of the said property.

From what has been already stated respecting the evidence before the court, there was no testimony whereupon to base any further or other assessment of damages, as is contemplated by the last paragraph of the foregoing citation from the statute, even though the pleadings of the parties had warranted the assessment of such further damages.

The counsel for the appellants having, in his brief, waived the consideration of the first of his assignment of errors, it will not be noticed. The fourth and last error assigned is the overruling, by the court, of his motion for a new trial. The first ground of. said motion is that the judgment is contrary to the law and the evidence. The sixty-seventh rule of the supreme court for the government of the district courts directs that objections couched in such general terms as those above quoted shall not be considered by the court, and therefore they will not be noticed here on review. The remaining ground is because the judgment is not responsive to1 and in conformity with the issues made by the pleadings of plaintiff and defendant. In considering which, in view of the conclusion already reached as to the reversal of the judgment in this case, we need only to refer to it in connection with the subsequent proceedings to be had on another trial in the court below. Whatever may be the true rule to be applied in a case where the injunction operates upon the collection or enforcement of a judgment for money, in respect to the pleadings which would admit of a •judgment as of course upon the injunction bond, w.e are of opinion that in injunction cases of this character which do not seek to restrain the enforcement of the judgment generally, nor complain of its validity, but only to ascertain and determine the liability of particular property to levy and sale, that if the defendant in the injunction suit claims damages other than those given for delay, in order, to warrant a judgment therefor such damage should be alleged and proved with the appropriate prayer for the relief demanded. The modifications in the law relating to injunctions by the Revised Statutes of the state, probably now more certainly and clearly require the course we have suggested than might have seemed apparent under the statutes in force when this case was tried.

We think it proper in this connection to direct attention to the fact that the petition for injunction, whilst in general terms; and rather as a conclusion of law, alleges that the property levied upon is exempt from execution as implements of husbandry, etc., it does not allege that the plaintiff was either the head of"a-family, or a member of a family entitled to the benefits of the exemption given only to persons thus protected. The evidence in the case, too, fails to disclose any fact tending to confer on the plaintiff the benefit of the exemption. The exemption of implements of husbandry is restricted to “ every family in this State,” and the reservation to every citizen “ not a head of a family ” embraces certain enumerated property other than “ implements of husbandry.” See Acts 12th Leg. (called session), p. 127.

Under the evidence, therefore, the judgment of the court below was correct in dissolving the injunction on the hearing. Whether the articles of property described in plaintiff’s petition were or not implements of husbandry should have been developed by proper descriptive proof relating to their respective natures, uses, qualities, etc. The term implements is generic, and the species embraced within it are not the subject of judicial knowledge.

Whether non-user by the owner of implements of husbandry, or the ceasing to carry on the business of farming, would have the effect of discharging the exemption, we do not consider need be determined by us under the assignments of error before us. It will suffice to remark that such evidence would be competent and admissible as tending to show whether such property continued dedicated to’ either a present or prospective use for the purposes of husbandry; the exemption would not be lost by a mere temporary suspension of the occupation of farming.

We conclude for the reasons given, and award accordingly, that the judgment be reversed and the cause remanded.