text:
    A. A. Cassiday et al. v. Charles C. Frankland.
    (Case No. 4210.)
    1. "Vendor’s lien — Superior title—Limitation.— The superior title remains with the vendor, where he sells land, taking purchase money notes, with lien reserved in the deed to secure their payment ; and he may recover the land if the notes are not paid. If he transfers the notes, however, he no longer has any title in the land, superior or otherwise; nor does the superior title pass to the assignee or transferee, though the vendor’s lien does, and the statute of limitations of four years will apply. Baker v. Compton, 52 Tex., 252.
    (Note.— What becomes of the superior title? S. A. P.)
    . Appeal from McLennan. Tried below before the Hon. L. C. Alexander.
    This suit was brought by Frankland for the recovery from Cassiday of two tracts of land in McLennan county. The petition is in the ordinary form of trespass to try title.

      The defendants answered the general denial, and title acquired under the following circumstances: One R. P. Jones, of Brazoria county, being indebted to John Barnes, of London, in the sum of $100,000, and owning a large estate in lands, slaves and other property, conveyed this property to O. C. Frankland and Clinton Terry, as trustees, to secure the payment of this debt, with power to sell. The lands in controversy formed part of that estate. Jones dying soon after, John Barnes instituted suit against C. C. Frankland and Clinton Terry, the trustees, and Eleanor B. Frankland, the heir at law, and Ambrose Lanfear, in which a judgment was entered against C. 0. Frankland, as executor and gen. eral heir and legatee of R. P. Jones, for $100,000, and that this amount should be a first and privileged hen upon all the estate of Jones, divesting all title in the property out of Jones’ legal representatives and heirs, vesting it in Frank-land and Terry, as trustees. The decree then proceeded to direct how the trust should be executed. Frankland and Terry were confirmed as assignees under the original trust deed, which was declared to be in full force, subject to the provisions of the decree. It then directed that all the property (including the land in dispute here) should be sold at public auction, upon the terms of ten per cent, cash and the balance of the purchase money in three equal payments of one, two and three years, with eight per cent, interest; the purchasers to execute their notes, payable to A. Lanfear, at Galveston, secured by mortgage to be retained on the property. The power to act is vested in Frankland and Terry, jointly or severally; and they were directed to execute deeds to the purchasers, valid and effectual in law to convey all the right, title, interest and claim of Jones and the defendants to the lands and property sold, but without warranty. It was further provided that the cash proceeds of all sales should be at once paid to the plaintiff, deducting commissions, etc.; and “ that the plaintiff, or his attorneys of record or other agent for him, shall have the right to elect and take any of the notes and mortgages received as above on any of said sales, and credit the amount of the same ” on his deht, “in which case said assignees shall be released from all further attention to said notes, and accountability therefor.” “But the said notes and mortgages which the plaintiff shall not so elect to take and receive shall remain subject to the control of the assignees, who shall collect the same at maturity, and pay over the several amounts as received by them to the said Lanfear or his order, at Galveston; and the notes and mortgages shall not operate as any credit or payment of the amounts thereof to said plaintiff, and shall not in any manner impair his claim and lien against the estate of said Jones, until the collection and payment of the proceeds to said Lanfear, except in cases of purchases in election to take said notes as hereinbefore specified.”
    Under this power, at a sale by Franlcland and Terry, John A. Wharton purchased the land in controversy, paid the ten per cent, cash, and gave his notes for the balance of the purchase money, payable to A. Lanfear. In the deed to him is reserved a mortgage to said Lanfear to secure the payment of the notes, and the defendants derive their title by conveyances under John Wharton.
    The defendants aver:
    1. That plaintiff’s claim is a stale demand, and barred by limitation.
    2. That the notes of John Wharton to Lanfear were paid by services rendered by Wharton to the assignees as attorney.
    3. That Clinton Terry died in 1862, and that the debt to Barnes not having been paid, Frankland has no right to sue.
    4. That the Wharton notes were paid and delivered to and received by John Barnes or his agent, John B. Jones, as a credit upon his debt, and that plaintiff has no right of property therein, all the notes having been, in conformity with the decree, delivered to said Barnes or his agent.
    This embraces the chief points of defense to which it is necessary to refer.
    The plaintiff excepted to defendants’ answer upon many grounds, upon which, however, no action was taken by the court. The cause was submitted to a jury. Upon the trial it was admitted that both parties claimed title from a common source; that plaintiff held a deed to him and Clinton Terry, as assignees of Jones; that Terry died in 1862, and plaintiff is surviving trustee. The sale of the land and purchase by Wharton and deed to him were also admitted. The judgment of the district court of Brazoria, and the regularity of the proceedings there, were admitted. The deed of trust, assignment and the judgment of said court were introduced and read.
    The defendants then introduced the deed from Frankland and Terry to Wharton for the land, which contains a mortgage to A. Lanfear to secure the payment of the notes for the purchase money, and it was admitted that defendants had a regular chain of title thereunder.
    They further proved that John Wharton and Clinton Terry were law partners; that Wharton acted as attorney for the assignees, and that his services were worth §2,000; that John B. Jones was the agent and attorney of Barnes, and admissions made by him tending to prove that Wharton and Terry’s claim against the Jones estate had not been settled.
    The plaintiff Frankland’s deposition was then read for plaintiff. He testified, among other things, to the sale of the lands under the deed of assignment and judgment, and “that we, the trustees, paid over and delivered to John B. Jones, who was the agent and attorney of John Barnes, all cash and notes received for the lands and other property of said trust estate.” Appended to his deposition is a “ summary statement of account,” the last item in which is, “Amount of three notes of John A. Wharton in our hands, $576.” There are other papers showing large sales; in the aggregate, $40,957.99, and afterwards $8,832.
    He denies that Wharton was ever employed or rendered services to the trust estate, and all knowledge of any agreement that his notes for the land should be so discharged.
    Coryell, for the plaintiff, proved that all the cash and notes received at the sales “were paid over and delivered to John B. Jones as the agent and attorney of John Barnes; that the notes of Wharton were among the notes in the hands of Jones; that they were no evidences of payment, and were burnt up in a tire in his office.”
    This summary of the testimony is all that is material to an understanding of the case.
    The judge charged the jury at great length. It is not necessary to recite it at length. He instructed them:
    1st. Tnat the deeds and admissions of the parties show that the legal title to the land was in plaintiff after the death of Terry in 1862.
    2d. That the superior title to the land remained in plaintiff until payment of the notes, and unless the purchase money has been paid, or some fact equivalent thereto, as hereafter, in seventh charge mentioned, is proven, you will find for plaintiff.
    3d. In a proceeding like the present there is no legal presumption of payment arising from any lapse of time, and no plea of limitation is an available defense.
    Fourth, fifth and sixth charges relate to what might be considered evidences of payment.
    7th. “If said notes were not paid, but you believe from .the evidence that John Barnes, under the terms authorized by the deed and decree, took the notes as casli and credited Jones with so much as paid, thereby to that amount discharging the debt of Jones, the plaintiff cannot recover, and you will find for the defendants; but if you do not find for the defendants under this seventh charge, and do not find that the notes hive been paid, you will find for plaintiff. If the notes have been paid you will find for the defendants.” Among the charges asked by defendants, and refused, was the following: “If you believe from-the evidence that the notes executed by Wharton for said land were “delivered to and accepted by said John Barnes or his attorney, Jno. B. Jones, as a credit upon the judgment of said Barnes, then you will find lor defendant, Mrs. Mary Cassiday.”
    The jury found a verdict for the plaintiff, and there was judgment accordingly. Defendant moved for a new trial, which, being overruled, defendants appealed.

      The assignments of error are:
    1. The error in excluding testimony.
    2. In refusing to give the charges asked, by defendants. ■
    3. The court erred in overruling the motion of the defendants for a new trial, and the grounds therein specified are here specially assigned.
    4. The judgment of the court is not responsive to and supported by the pleadings.
    The grounds set out in the motion for a new trial are:
    1. The exclusion of testimony.
    2. Error in the charge to the jury, and especially in stating that the legal title was in plaintiff after Terry’s death, and also in the construction and legal effect of the deed from Frankland and Terry to Wharton.
    3. The court erred in its third charge.
    4. The court erred in its sixth1*charge.
    5. The court erred in refusing to give to the jury the charges asked by the defendant.
    6. The verdict of the jury is contrary to the law and the evidence.

      Herring cé Kelley, for appellants.

      Jennings & Dwyer, for appellee.
   Quinan, J.

It is unnecessary to discuss severally the different assignments, or attempt a reply in dotad to the multitude of propositions and counter propositions, divided and subdivided under the various assignments. It would serve only to give a prolix and perhaps confused statement of our views. We choose rather to notice the prominent points taken, and which tend directly to a decision of the case.

In the first place, we are of opinion that the charge of the judge complained of in the second assignment of error “is erroneous.” It is in the following words: “ It is also admitted that the facts recited in both of said deeds are true. The deed of assignment, the decree of the district court of Brazoria county, and the admissions of the parties, show that the legal title was in plaintiff after the death of Terry.” We find in the transcript no admission of the defendants which would warrant the giving of this charge, and we think it was calculated, in connection with the instructions otherwise given, to mislead the jury. 2d. They were instructed also that “the conveyance to Wharton by Frankland and Terry vested in him, and those claiming under him, only an equitable right to obtain the legal title on the payment of the notes, and till then the legal and superior title to the land remained in Frankland, unless John Barnes, under the terms authorized by the deed and decree, took the notes as cash, and credited Jones with so much as paid, thereby to that amount discharging the debt of Jones to plaintiff.” This instruction made essential to the divestiture of the superior title out of Frankland upon which he sought a recovery, “an absolute discharge of Jones’ debt to Barnes, and put upon the defendants the necessity of proving it. How we think this is manifestly an erroneous construction of the terms of the decree defining the powers of the trustee. It was the province of the court to construe it and to deliver its true meaning to the jury, and in our judgment there is no ambiguity about it upon this point. Conceding (because it is unnecessary to this discussion) that the deed to Wharton did not vest the legal title in Lanfear, to whom the notes of Wharton, and the mortgage to secure them, were made, and that as a consequence of the notes remaining in the hands of Frankland and Terry for collection, the superior title continued there also, it would seem to be very clear that when the notes were no longer in the hands of Frankland and Terry, when they had parted with the possession of them, and were released from “all further attention to said notes and accountability therefor,” that they no longer had any title, legal, equitable, superior or otherwise, in the land. The decree, by its terms, reserved the right to Barnés to take any purchase money notes he chose, and credit them upon his debt, and thereafter Frank-land and Terry should no longer be accountable for them; but it reserved the right, also, to Frankland and Terry, and it became their duty, to hold and control, and collect them, unless, they were so taken. There is nothing in the deed or decree to authorize the assignees to deliver to Barnes the notes and mortgages on any other terms, and nothing giving any right to Barnes to take them upon any other terms. By the stipulations of the deed it is wholly immaterial whether Barnes ever collects the notes he elects to take. If he takes and receives- them the assignees are entitled, of course, to a credit for them. They cannot be held accountable to him for what has passed out of their control and of which they have parted with the power to collect. The notes were payable, by Barnes’ appointment, to Lanfear, as Barnes’ trustee; and, while they remained in Barnes’ possession and control, Jones’ assignees had no power to collect them. And, on the other hand, passing into Barnes’ hands, payable to his agent, and he having the possession and the beneficial interest in them, the mortgage, the vendor’s lien, and every other incident belonging to them, went with them, and nothing remained in Frankland and Terry.

An examination of the decree will show that what is therein said as to the notes and mortgages not operating as a credit or payment of the amount thereof to said plaintiff, and not in any manner impairing his claim and lien against the estate of said Jones, until the collection and payment of the proceeds to said Lanfear, except in cases of purchases in election to take said notes as hereinbefore specified,” will show that this provision has reference, and can have reference, only to those notes and mortgages which remain in the possession and control of the assignees. It is absurd to suppose that Barnes could receive the notes and take possession and control of them, so depriving Frankland and Terry of the power to collect them, and, though the proceeds may never be collected and paid over to Lanfear, .hold them accountable for them, and that, nevertheless, his claim and lien against the estate of Jones should not be in any manner impaired. Obviously this is not the fair construction of the decree. It contemplated an arrangement for the security of both parties. Barnes sought to collect his- debt through the sale of the property, and Jones’ estate was interested in the sale of the property and that the proceeds should be faithfully collected and applied to the release of the incumbrance upon it. The duty and obligation of the assignees was to both parties. To the estate, that the notes and mortgages should not pass beyond their control, except in discharge of the debt, and to Barnes, that the property shall be speedily and advantageously sold and faithfully paid over. It would be a gross breach of trust, on the part of the assignees, to deliver the assets of their trust estate to the cestui que trust, without a corresponding release of the liability of the grantor.

We think, therefore, the court erred in the construction it put upon the terms of the conveyance and decree.

There was error also in overruling the motion for a new trial. The verdict was manifestly against the evidence.

From what we have said upon the proper construction of the conveyances and decree, it will be seen that if the superior title to the land remained in Frankland, and he could be entitled to recover the land in consequence, it could only be as the result of his retention of the notes given for the purchase money. To them attached the vendor’s lien, and with them it went into whatsoever hands they passed. The • owner of the notes owns the security. Frankland cannot have the superior title to the land, and Barnes the vendor’s lien upon it. if or can Frankland hold or set up any title to the land when he has parted with the legal title and the notes also given for the purchase money. And that Frank-land and Terry have long since transferred the notes, and have no longer any title or interest in them, barred or unbarred, is proven by the plaintiff himself and his witnesses.

Frankland swears: “We, the trustees, paid over and delivered to John B. Jones, who was the agent and attorney of John Barnes, all cash and notes received for the lands and other property of said trust estate.”

Holmes swears that all the cash and notes received at the sales were paid over and delivered to John B. Jones, as the agent and attorney in fact of John Barnes, and that the notes of Wharton were among them.

[Opinion delivered June 24, 1880.]

They were paid and delivered. Payment implies a corresponding credit. If they were paid to Barnes, his debt was reduced so much by payment, and the assignees must have credit for it. We must presume they did their duty; that they did not pay them to Barnes without a credit for them; and it is certain that Barnes, by receiving them as a payment, acquired the absolute title to them, and with them whatever right or interest attached to. them in the land for which they were given.

So that Frankland, by his own proof, established .the fact that he had no interest in this land when he sued for'it, and had no right to recover it. It was absolutely necessary to his recovery that he should have and own the notes, that the consequence should attach of retaining; if he had it, the superior title to the land in him; and the burden of proof was on him to show this when it had been disclosed that the notes had passed once into other hands, and to negative the presumptions arising therefrom.

The remaining assignments it is unnecessary to consider. The charge of the judge upon the subject of limitation was altogether irrelevant until the ownership of the notes by Frankland was shown. If sued on by Lanfear or Barnes, the statute of limitation of four years would apply, and the doctrine of superior title would not apply; for, in our judgment, the superior title does not pass to the assignee or transferee of a purchase money note, though the vendor’s lien does. See Baker v. Compton, 52 Tex., 252.

The owner of the notes, not the original payee, is not the owner of the land. A promissory note is not a sufficient conveyance of lands upon which it has a lien.

For the errors indicated in the charge of the judge, and that the verdict is against the evidence, we award that the case be reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Walkee, P. J.

license: Public Domain

text:
    Dunham, Buckley & Co. v. David Simon et al.
    (Case No. 3486.)
    1. Partnership—Notice of dissolution.— A retiring partner can only relieve himself from liability for debts thereafter incurred in the firm name by giving express notice to all persons dealing with the firm, and the world in general, of the dissolution of the partnership.
    2. Interrogatories to adverse party — 'When not taken for confessed.—A defendant caused interrogatories to be propounded to himself, which the plaintiff crossed. Instead of answering them he appeared before the officer receiving the commission and declined to answer, on the ground that he intended to attend the trial and testify on the stand. Having appeared at the trial and testified, failure to answer the cross-interrogatories of the plaintiff did not warrant their being taken as confessed.
    Appeal from Washington. Tried below before the Hon. E. B. Turner.
    The appellants Dunham, Buckley & Co., as plaintiffs below, brought suit in the district court of Washington county against David Simon, Louis Friedman, Isaac Simon and Sana Friedman as partners, under the firm name of David Simon & Friedman, on a promissory note for $1,147.58, dated September 28, 1875. By proper process Bassett & Bassett were summoned as garnishees. On the trial the court rendered judgment in favor of the plaintiffs against the defendants David Simon and Louis Friedman, and against the plaintiffs in favor of the defendants Isaac Simon and Sam Friedman, and discharged the garnishees. From this latter portion of the judgment denying them a recovery against the appellees, Isaac Simon and Sam Friedman, and the garnishees,.the plaintiffs appeal.
    The note sued on was dated September 28, 1875, and purported to have been executed to the plaintiffs by David Simon & Friedman. It was alleged in the original petition that the firm of David Simon & Friedman was composed of David Simon and Louis Friedman, and the appellees Isaac Simon and Sam Friedman, and that the same parties composed the firm of Isaac Simon Friedman. The defendants David Simon and Louis Friedman answered, admitting their liability on the note. The appellees Isaac Simon and Sam Friedman pleaded non est faetum, and denied, under oath, that they were at the date of the note, or at any time after September 1, 1875, partners of their co-defendants under any firm name; to which the plaintiffs, by an amended petition, replied that for a period of two years or more before the execution of the note all the defendants had been partners in business under the several firm names of Simon & Friedman, D. Simon & L. Friedman, David Simon & Friedman, and David Simon & Louis Friedman, and Isaac Simon & Friedman; and that in the prosecution of their partnership business, which was that of peddlers, they used said firm names indiscriminately in buying, selling,' giving and taking notes, making deposits, etc., etc., and that as such they had for a long period prior to the execution of the note dealt with the plaintiffs under said several firm names, and particularly under the name of David Simon & Friedman; that during said period they acknowledged and held themselves out to the world, and particularly to the plaintiffs, as such partners; and that the plaintiffs, believing them to be still partners under said firm name of David Simon & Friedman, and being induced so to believe by their representations and acts, sold and delivered to them a large bill of goods suitable for their partnership business, .and took the note sued on in liquidation thereof. To this amended petition there was no answer by the appellees, nor was any general denial filed by them, nor any special denial except as above stated.
    The plaintiffs then introduced a considerable amount of testimony (as is admitted by the statement of facts) showing joint dealings of all the defendants under the several firm names stated in the petition; they showed former dealings between the plaintiffs and the firm of David Simon & Friedman during the years 1874 and 1875, consisting of the purchase of goods of plaintiffs by defendants, the execution of notes and the payment of same.
    The evidence on behalf of the defendants consisted of their own testimony only. It was to the effect that they were all partners during the fall and winter of 1874 and 1875. Sam Friedman testified that he and Isaac Simon were partners in the fall and winter of 1874 and 1875 with David Simon and Louis Friedman in respect to the profits. Isaac Simon testified that they (Sam Friedman and himself) had been partners together with David Simon and Louis Friedman. There was evidence from said witnesses concerning the business transactions during the fall and winter of 1874 and 1875 in Washington county, tending to establish the existence of a partnership between them all as to the profits.
    The testimony of the defendants showed that the partnership which included all the defendants was dissolved in the spring of 1875, or possibly later, but before, at all events, the date of the note sued on; that after the dissolution the new firm of Isaac Simon & Friedman included only Isaac Simon and Sam Friedman, and the new firm of David Simon & Friedman included only David Simon, who was the brother of Isaac Simon, and Louis Friedman, who was the brother of Sam Friedman, and that the purchase of goods for which the note was given, and the note itself, were on account of the new firm of David Simon & Friedman, and bound only its members.
    There was neither allegation nor proof that the plaintiffs were ever notified of the dissolution of the firm of David Simon & Friedman, as originally constituted, or of the withdrawal therefrom of the appellee's, Isaac Simon and Sam Friedman.
    In March, 1876, Isaac Simon & Sam Friedman sold out their teams and wagons and remnant of goods, and deposited with Bassett & Bassett $696.40, intending, as stated, to withdraw it when they started home to Detroit. Bassett & Bassett refused to repay the deposit on account of the garnishment sued out in this suit. These last named defendants testified that the money belonged to them, and that no other person had any interest in it. '
    . The court awarded judgment against the plaintiffs in favor of the appellees, Isaac Simon and Sam Friedman, and discharged the garnishees, whose answers showed that they were indebted to said parties.
    The defendants, Isaac Simon and Sam Friedman, propounded to themselves, as witnesses, direct interrogatories, to which the plaintiffs filed cross-interrogatories, the answers to which, under a commission, were to be taken in the state of Michigan, where they resided. They appeared before the notary public to whom had been intrusted the commission and the duty of executing the same, and declined and refused to be sworn or to answer to said interrogatories, stating that they would be present at the trial and would give in their evidence orally.
    On the trial, the plaintiffs moved the court to take for confessed the cross-interrogatories propounded by them to the appellees who had thus refused to answer. They opposed the motion on the ground that the interrogatories had not been propounded in accordance with the statute; that the law did not authorize the prayer of the motion; and that the appellees were present in court, and could be exam: ined by the plaintiffs, if they desired to do so; whereupon, it appearing by the plaintiffs’ admission that the parties were present in court, the motion was overruled, and the court refused to permit the plaintiffs to read the interrogatories as confessed.
    They were both examined on the trial as witnesses, offering themselves as such in their own behalf, and were cross-examined by counsel for the plaintiffs. Plaintiffs excepted to the ruling which disallowed them to take the cross-interrogatories for confessed, and assign it as error.
    The cause was submitted to the court without a jury. The appellants assign as error on the merits of the case, “ that the court erred in holding that the law of the case was with the appellees Isaac Simon and Sam Friedman, and in awarding judgment in their favor and discharging the garnishees, Bassett & Bassett, who are made appellees.”

      Sayles <& Bassett, for appellants.

      Breedlove ds Ewinq, for appellees.
   Walkee, P. J.

The evidence establishes the fact beyond controversy, and to which no testimony is opposed, that all of the defendants had been partners together during the fall and winter of 1874-5, and also that during the years 1874 and 1875, they, under the firm name of David Simon & Friedman, had had, as mercantile customers of the plaintiffs, dealings with the plaintiffs, consisting in the purchase of goods by defendants of the plaintiffs, the execution of notes therefor and the payment of the same. It is not pretended that any notice to the plaintiffs was given, or that they knew of the dissolution of that firm before the execution and delivery of the note sued on.

.The rule of law in respect to the liability of all the members of the firm which had thus been dealing with the ■plaintiffs previous to the date of the note sued on is clearly stated in the case of Tudor v. White, 27 Tex., 585, as follows: “ That third parties cannot be affected by mere secret and private agreements between the members of a firm, by •which they dissolve their connection, is an elementary principle. When they have'held themselves out to the public as partners, and authorized others to contract and deal with them upon the faith of their joint liability, those who have dealt with them as partners are authorized to act upon the presumption that such relation continues, until notice is ■given of the dissolution of the partnership, or such facts are shown as authorize the presumption that it was known.”, See, also, Story on Partnership, sec. 334.

“ The partnership quoad third persons, or in other words the liability of partners quoad third persons, cannot be dissolved without express notice to them, and to the world in general, that the partnership no longer exists. There is an exception to this rule in the case of a dormant partner. If the fact of his being in partnership be unknown to all the creditors of the firm, notice of his retirement is unnecessary; if it be known to a few, notice to those few is sufficient.” Collyer on Partnership, sec. 120.

“A dormant partner is he whose name and transactions as a partner are professedly concealed from the world.” Id., sec. 4.

The evidence does not show that any of the members of the firm were dormant partners, nor does it appear that the plaintiffs were in ignorance, whilst they dealt with and gave them credit, as to who it was that composed the partnership. Upon the state of facts developed by the evidence on the trial, we are of the opinion that the judgment of the court was ' erroneous and is not supported by sufficient evidence, and therefore should be reversed.

In respect to the remaining assignment of errors, that the court erred in refusing to permit the plaintiffs to take as confessed the cross-interrogatories by them propounded to those defendants who filed interrogatories to themselves, it is to be said that their right to do so is predicated upon the statutes, and whether they bring themselves within the provisions of the same or not, so as to exact their demand upon the state of case which is made, need not be determined, because, it is our opinion, that if they were entitled to the same benefits from propounding cross-interrogatories as though they had taken the initiative by propounding to such defendants direct interrogatories, yet, if the latter were in court at the time of the trial, ready and willing to be examined, the purposes of the law would have been sufficiently fulfilled as not to warrant the taking of the interrogatories as confessed. Ratcliff v. Baird, 14 Tex., 47. The statutes which regulate this subject (arts. 3748, 3754-3756, Pas.’Dig.) were enacted before the privilege was conferred by law upon parties to testify in their own behalf, and were in the nature of statutory proceedings for discovery, where the party, interrogating his adversary, selected him as an involuntary witness. Under the law as it now exists, these defendants offered to testify in their own behalf, and, through their counsel, caused interrogatories to be propounded to themselves, which were crossed by the plaintiffs. We will not undertake to decide that they might not, if they had chosen to do so, recant their determination to offer their testimony in that shape. It may well be questioned whether the propounding of cross-interrogatories by the plaintiffs can be deemed such “ an examination of the opposite party as a witness ” as was contemplated by art. 3754, Pas. Dig., but that it had reference to the voluntary selection by a party of his adversary as a witness, at a time when the latter did not stand upon the same footing as to competency as other witnesses. The plaintiffs evidently had the right to obtain the benefits of that statute by making said defendants their witnesses, and propounding to them interrogatories-in-chief; but this course they did not pursue, nor in any wise voluntarily accept them as witnesses in the case, further than they were made such by the law which entitles all parties to testify.

[Opinion delivered October 19, 1880.]

For the error in the judgment, we award that the same shall be reversed and the cause remanded.

Bevebsed and demanded.


author: Quinan, J.

text:
    J. W. Franks v. R. D. Hancock.
    (Case No. 2752.)
    1. Citizenship — Naturalization.— A colonist who, in 1831, received a grant of land, in Texas, and took the oath of allegiance, became a naturalized citizen, with all the rights of property and of person which he could have were he “ native here and to the manor horn.”
    2. Alien.— The minor daughter of a colonist, though never in Texas, is not an alien, even if living in an alien country, but callable of inheriting from him, and entitled to share with his other children and his widow in the distribution of his estate.
    3. Domicile — Citizenship — Minor.— The citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen is concerned, and the domicile of the minor child is that of the father. He being in Texas, his minor children, no matter where they may be, are citizens of, and have their domicile in, Texas also. At the death of the father, his domicile remains that of the children. Minors cannot change their domicile or acquire another until they become persons sui juris.

    4. Foreign law -t- Evidence.— A foreign law must be proved as a fact, and in the absence of proof the presumption is that it is the same as in Texas.

      5. Partition.—In a suit for partition every one having an interest in the property must be made parties to the suit; and if all are not made parties, the decree rendered in such proceeding is not binding even on those before the court.
    6. Practice —Parties—Partition.—If, in the course of the trial of a suit for partition, it becomes apparent that there are necessary parties not before the court, the case should be stopped and the parties brought in before rendering a decree. A decree of partitioñ is not binding on the parties to it unless they represent the whole of the estate.
    7. Limitation — Possession.—The possession of a co-tenant or tenant in common will be presumed to be in right of the common title. The tenant cannot claim the protection of the statute of limitations unless it clearly appear that he repudiates the title of his co-tenant and is holding adversely to it. In such case his acts and declarations will be construed much more strongly against him than when there is no privity of title.
    8. Land —Purchaser with notice.—The purchaser who buys land by metes and bounds from an heir, with knowledge of a division between the heirs and their ancestor's widow, by which thé widow received as her community interest a particular half of the survey, has no right, in a partition suit by one of the heirs, to complain because the widow’s half is not included in the suit.
    9. Limitation.—Disabilities cannot be piled one upon another.
    Appeal from Guadalupe. Tried below before the Hon. J. A. Ware.
    This suit was instituted on the 25th Movember, 1871, by Hancock against Franks and others, alleging that he is the owner of an undivided interest of one-fourth of the lower half of the Darst league and two-fifths of one-fourth of the same half league on the Guadalupe river in Gonzales county, and that the defendants are tenants in common with him of said half league, and praying partition of the same.
    The plaintiff sets out his title as follows: That Jacob C. Darst, with his wife, Margaret, and two of his children, emigrated to Texas from Missouri in 1831, and obtained a grant from the government as a colonist, for one league of land; that he was killed at the fall of the Alamo on the 6th March, 1836; that he left surviving him his widow and four children, David A. Darst, the son of Jacob and Margaret, and Haney Darst, who came with him to Texas, and Eosetta Darst, born the 23d February, 1814, and Mary" Darst, a younger child (children of a former marriage), who remained in Missouri. On 22d November, 1838, Eosetta was married in Missouri to Steven Hancock. On the 10th September, 1844, Eosetta died leaving three children, the plaintiff Eoswell Hancock, who was born 18th January, 1841, and two other children, who died leaving no issue. Nancy Darst was married in November, 1838, to one Crosby," who disappeared in July, 1840, and has not been heard of; and Nancy was killed by the Indians on'ISth August, 1840, and left no children. Nancy Darst conveyed her interest to David.
    The widow of Jacob conveyed the upper half of the league as her community interest to David Darst, and David conveyed that half to one French Smith, in 1844, by metes and bounds, “ leaving thus the lower half for the children and heirs at law of Jacob Darst.”
    The plaintiff claimed that he was entitled to one-fourth of the lower half of the league as heir of his mother, Eosetta, and to two-fifths of that fourth which descended to Nancy, and that the defendants own the residue. It was -averred that David Darst, in 1853, sold all his interest in the lower half of the league to defendants, J. W. Franks and Susan, his wife, who are now in possession of the land.
    .The grant is annexed to the petition, and recites that Jacob Darst had a family consisting of his wife and four children, a son and three daughters; that he is a stock raiser. The grant is dated-1st July, 1831.
    To this petition the defendants filed a general demurrer, and pleaded “not guilty,” and the law of limitations of ten, five and three years, and suggested that they had made valuable improvements, etc.
    The cause was submitted to the judge, a jury being waived.
    Judgment was rendered for the plaintiff for seven twenty- • fourths of the land described in the petition, and for partition, appointing commissioners to divide the land, and directing them tó respect the improvements made by Franks and wife and their vendees so far as was practicable, and the costs apportioned according to the interest of the parties, and that plaintiff recover seven twenty-fourths of the costs of the suit.
    From this judgment defendants appealed.
    By a bill of exceptions it appears that the defendants’ demurrer was overruled and that the court refused to permit proof of the character and value of the defendants’ improvements.
    Upon the trial the facts as stated in plaintiff’s petition were substantially proven. The emigration of Jacob Darst to Texas in 1831 and the grant to him of the league of land. There came with him his wife, Margaret, and their son David, and Fancy Darst, the daughter of Jacob by a former marriage. Two other daughters, Bosetta and Mary, never came to Texas, but remained in Missouri. Fancy, in Fovember, 1839, was married to one Crosby, who left Texas for Illinois in the fall of 1840 and has never been heard of since. By him she had one child, which died 7th August, 1840.
    Mrs. Fretwell, whose statement was admitted without objection, states that she was taken prisoner by the Indians on the morning of the 8th August, 1840, when Linnville was sacked. Soon afterwards a woman rode up and accosted her, demanding to know “ why she had suffered herself to be taken prisoner.” She said her name was Crosby; that she had been taken prisoner the day previous when the Indians attacked ’Victoria; was only captured because she had a babe to save as well as herself; that she and her babe were placed on horseback; that on riding into Linnville on the morning of the 8th August, 1840, “ for want of nourishment, she having none to give it, and because of excessive fatigue, her babe fretted and cried greatly, for which an ■ Indian snatched the babe from her, cast it upon the ground and speared it before her eyes.” A few days afterward the dead body of Mrs. Crosby was found with an arrow through the heart. She was killed at the battle of Plum Creek. David Darst gave the ages of the children of Jacob Darst from the family bible. Bosetta was born February 23,1814. He says, “ they (speaking of Bosetta and Mary) refused to come to Texas with their father through the influence of their relations in Missouri, as 1 understood at the time.” There was a division of property between them and their father, leaving them some property and money, amounting to about $1,000, in the care of their uncles for the use of the children and their support. In 1855 David Darst brought his sister Mary to Texas. She remained here two years.
    Eosetta Darst was married to Steven Hancock in Missouri on the 22d November, 1838, and died in the fall of 1844. By him she had three children, Mary, Zerilda, and the plaintiff, Eoswell D. Hancock, who was born January 18, 1841»
    Mary Hancock was married to Patrick Garvin, and died 30th June, 1857, leaving no children; her husband survived her. Zerilda died in 1863, unmarried.
    It appears from the testimony of Mrs. Bryan that Eosetta left her father’s house about a year after his second marriage, for the reason that she could not get along with her stepmother. She went to her grandfather’s (she was then about eight years old) with the consent of her father, who always appeared to exercise a father’s control over her. Her sister Mary was taken care of by her uncle, Morgan Bryan.
    The agreement of parties forms part of the statement of facts, by which it appears that administration was taken out on the estate of Jacob Darst by his surviving wife; that all the debts were paid,and the estate closed; ánd that the surviving wife took the upper half of the headright league as her community share; that she conveyed it to her son David, who, 21st March, 1844, conveyed it to French Smi.th;, that afterwards, in 1851, said David sold the lower half of the league to defendants Franks and wife; that in 1855 or 1856, Mary Darst conveyed her interest in the land in this suit for a valuable consideration to David Darst; that defendants had been in possession ever since the date of their title bond, viz., 1st July, 1851.
    David Darst says: ■“ He and his mother settled upon it in 1841, and. remained till driven off by the Vasquez raid. Some time after he put another man in possession, and after he left another, who remained till the sale to Franks. The parties held under him, and the occupancy of the league has been about as continuous as the state of the country would permit since 1841.” There was no proof of the payment of taxes.
    In pursuance of Darst’s title bond to Franks, Darst conveyed the land involved in this suit by metes and bounds to James L. Gay, in trust for the use and benefit of Franks’ wife. The deed is dated 21st June, 1852.
    Jacob Darst, the grantee of the land, fell at the fall of the Alamo on the Gth of March, 1830.
    The assignments of error are in substance:
    1. That the court erred in overruling the defendants’ demurrer.
    2. That the court erred in excluding proof offered by defendants of permanent and valuable improvements.
    3. That the court erred in giving judgment for the plaintiff in manner and form as the same was rendered.
    4. That the court erred in overruling the defendants’ motion for a new trial.
    5. The judgment is erroneous in this:
    1. Plaintiff’s ancestors were aliens at the time of the descent cast.
    2. The plaintiff and his ancestor’s mother were barred by limitation.
    3. The mother of plaintiff, never having come to Texas, was never a citizen of Texas, and not entitled to share in the distribution.
    4. The plaintiff was not entitled to the interest of the child of the deceased daughter of Jacob Darst, who was killed at Plum Creek, nor of the other daughter.
    5. The presumption was that the land in controversy was partitioned and distributed at the time the administration was closed in Gonzales county, and herein plaintiff and ancestor were barred.
    6. On the whole testimony plaintiff was not entitled to judgment.

      7. The court decreed costs against defendants that had been expressly adjudged against plaintiff.

      John Ireland and Miller c& Sayers, for appellant.

      Harwood c& Winston, for appellee.
   Quinan, J.

It is not necessary for the determination o£ this case that we should consider these assignments in detail.

The important questions presented are, whether Bosetta Darst, the mother of the plaintiff, and under whom he claims, was an alien and incapable by the law of inheriting from her father the land in controversy; whether, if not, her right has been forfeited or lost by lapse of time; whether the plaintiff has made good his title to the land and the quantity for which he recovered judgment, or is barred by the laws of limitation; and whether the judgment of the court, in the disposition of the case- as respects improvements, partition and costs, is the judgment •which should have been rendered?

Jacob Darst, upon his emigration to Texas, ivas admitted a colonist of De Witt’s colony. He received upon his appli- ' cation (which by the proper authority was adjudged to be true) representing that he was a married man and had four childen, one of whom was of the male sex; that he was of good habits, a laborer, farmer and stock raiser,,— a grant of this league of land. The grant recites that he had taken the oath of allegiance to the republic of Mexico and to the state. He thus became a naturalized citizen of the republic of Mexico.

“Domiciliation,” says Chief Justice Hemphill, in Tates v. lams, “is in most respects equivalent to naturalization. The domiciliated foreigner is regarded as a subject, and as such he must take the oath of allegiance, renouncing foreign protection or any relation or civil subjection to his own country. His rights can be defined without difficulty. He is in the condition of a native citizen, and is, as a general rule, entitled to the same rights and to the like charges and obligations.” 10 Tex., 170.

The acquisition of land, attaching him to the soil, his reception as a colonist, is conclusive of his domiciliation or its equivalent, naturalization.

Besides, Darst continued until his death to reside in Texas, and fell fighting for the liberties of the land when the Alamo fell on the 6th of March, 1836.

By the constitution of the republic it was declared that all persons who resided in Texas on the day of the declaration of independence (the 2d of March, 1836) shall be considered citizens of the- republic and entitled to all the privileges of such.”

At his death, then, Jacob Darst was resident here, and had here his fixed domicile, with unqualified ownership of the land granted to him, and with all the rights of property and of person which he could have were he “native here and to the manor born.”

It follows, necessarily, that being himself a citizen resi-, dent here, his minor children, no matter where they might be, were citizens and had their domicile here also.

The authorities to sustain this proposition are in the reports and text books very numerous.

The domicile of the minor child is always that of the father. It is clear, says Judge Wheeler, that the domicile of the parent draws to it that of the children. Hardy v. De Leon, 5 Tex., 237. And again in Russell v. Randolph, 11 Tex., 465, referring to Republic v. Young, Dallam, 464, and State v. Skidmore, the same judge says: “ The principle of these cases is, that constructively their families were with them. ... If Bussell had acquired a residence in Texas animo manandi, constructively his wife and children were here too, because his residence by operation of law would also be their residence.” When the domicile of the parent shifts, that of the minor child .follows the change. Wharton’s Conf. of Laws, sec. 41; Story, Conflict of Laws, 546.

The domicile of the father or mother, being a widow, is that of the child, and a change by either of those parents would necessarily operate as a change of the child’s domicile. 1 Burge, Com. on Col. and For. Law, 38. At the death of the father his domicile remains that of his infant children. Trammell v. Trammell, 20 Tex., 417; Story, Conf. of Laws, sec. 46.

And the general rule is that minors cannot change their domicile. 3STo infant, says Story, J., who has a parent can, in the nature of things, have a separate domicile. The parent’s domicile is consequently and unavoidably the domicile of the child. Story on Conf. of Laws, 505; Wheeler v. Hollis, 19 Tex., 527; Russell v. Randolph, 11 Tex., 465; 13 Ind., 167; 18 Ind., 17.

So it was held in the leading case of Gruier v. O’Daniel, 1 Am. Leading Cases, 679.

“ A minor during pupilage cannot acquire a domicile of his own. His domicile, therefore, follows that of his father, and remains until he acquires another, which he cannot do until he becomes a person sui juris.” See, also, 2 Mass., 419; 5 Vesey, Jr., 750.

And in Ludlam v. Ludlam, 26 N. Y. Rep., 371, it is said that “this rule applies in regard to citizenship—the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, though the child, from the circumstance of his birth in a country where the father is not a citizen, may acquire rights and be subject to duties in regard to such country which do not attach to the father.”

And whether Rosetta Darst was an alien and a minor must be determined by the law of Texas at the time of her father’s death.

“ Who are to be viewed as aliens, and what restrictions their alienage imposes on them, is from the nature of things exclusively the subject of territorial legislation.” Wharton, Conf. of Laws, sec. 123.

And Judge Story says:' “That territorial limitations which prohibit aliens from holding lands either by succession or purchase take eifect according to the lex situs, and capacity is thus judged by this law and not by that of the alien’s domicile. There can be no question that, as to realty, capacity is determined by the lex rei sitae? Story, Conf. of Laws, 430, 434; Wharton, Conf. Law, sec. 296.

Rosetta Darst, by the law of Texas in force at the death of her father, being under twenty-five years of age, was a minor; her father’s domicile was her domicile in law, and remained so at his death, and our conclusion is, therefore, that she was not an alien; that she was capable of inheriting from him, and entitled to share with his other children and his widow in the distribution of his estate.

But it is insisted by the appellant that Rosetta having refused to remove with her father to Texas, and chosen to remain in Missouri, she retained her domicile in Missouri, and never in fact was otherwise than alien here.

This proposition is sufficiently answered by the authorities cited. At the time of her father’s removal she was but sixteen years of age, and even if .we admit the statement of David Darst as to what occurred when he was little more than four years old, to be unqualified by time (though the testimony of the other witnesses does not sustain it), and that she refused to come here, yet, being a minor, she was incapable of refusal or choice of domicile, and none the less “ by operation of law, when this country became her fathers residence it became also her residence.”

We have been referred by appellant’s counsel to numerous cases in our supreme court upon the subject of alienage, but upon examination it will be found that they but remotely touch the questions involved in this case. They only.affirm the general rule that an alien heir, at the time of the descent cast, could not inherit land in Texas. Mo case has been cited in which it has been held that minor children of citizens were alien here.

In Portis v. Hill, 14 Tex., 81, there was no question that the minor, Cummins, inherited.

In Blythe v. Easterling it did not appear that Baird ever was a citizen of Texas. He purchased the land in 1833, and died the same year. And it was admitted of record that at the time of his death the plaintiffs were citizens of the United States.

In Yates v. Iams, it does not appear that Ruth lams, the daughter of John lams, was a minor.

In Warnell v. Finch, 15 Tex., 166, the question was not considered whether Warnell was domiciliated here or was a citizen of Texas at the time of his death on 6th March, 1836. He had then acquired no land, nor does it appear that he was entitled to claim any under the colonization laws. The land in controversy was a third of a league granted to his heirs by virtue of a certificate issued to them in 1838, which was sustained, and his daughter’s right to it held good under the law of 24th May, 1838, providing for the issuing óf headrights to the heirs of those who fell with Travis, etc.

Another objection urged to the correctness of this conclusion is that, at the time of the death of her father, Rosetta was over twenty-one years old; that, by the laws of Missouri, where she then was, she was no longer a minor, but of full age and capable of choosing her domicile, and that her legal domicile was-in that state.

It would be sufficient answer to this proposition to say that there is no proof of the laws of Missouri in this record, that foreign laws must be proved as facts, and that in the absence of proof we must presume that the law of Missouri was the same as our own. Wharton on Ev., sec. 1292. But we have seen that, as this controversy concerns the realty situated here, the question of Rosetta Darst’s right to inherit, whether she were minor or alien, must be determined by our own laws. Indeed, to maintain the contrary doctrine would be to concede to foreign countries the right to prescribe for us the rules which should control the domestic relations and regulate the paternal authority of our own citizens, which should determine for us whom we should regard as aliens to our government, and to whom we should grant the right of inheritance in our own soil. It may be added that laws respecting aliens, in modern times, are more and more being relaxed; that the capacity of such persons to acquire receives now a much ip ore liberal and favorable construction than in former times. Wharton, 123 et seq.

We come now to consider the defense of the laws of lim- - itation. It is very manifest, from the proof, that, until the sale of the land to Franks, there was no possession of the land adverse to the claim of the children of Hosetta Darst in the lower half of the league. There is no act or fact, proven from which the deduction could be drawn that Darst, or those who occupied the land for him, held otherwise than for the benefit of David Darst and his co-heirs. Although examined as a witness, he does not attempt to say that his possession of the land was an exclusive possession, or that • he held it adversely to the other heirs or children of his father. “ The possession of a co-tenant or tenant in common will be presumed to be in right of the common title. He cannot claim the protection of the statute unless it clearly appear that he repudiated the title of his co-tenant and is holding adversely to it, and in such cases the acts and declarations of the parties in possession are to be con- ■ strued much more strongly against him than when there is no privity of title.” Baily v. Trammell, 27 Tex., 328; Angell on Lim., 423.

The fact that there was or was not a partition of the. league whereby Mrs. Darst “ took for her share the upper half of the league,” and conveyed that land by metes and bounds to David Darst, raises no presumption that there was any partition as between the heirs of the lower half among them. ^ Indeed, the agreement of the parties, made part of the statement of facts, strongly negatives the idea that any partition of the land was made by the probate court. It says the estate of Jacob Darst was closed, and “ that the said surviving wife took the upper half of the head right league as her community share.” Had there been any action of the court of probate decreeing a partition of the land, and allotting the lower half of the league to David Darst, to the exclusion of the other children of Darst, it could doubtless have been established, and there would then, it' would seem, have been but small occasion for the purchase by David Darst from his sister Mary at a full price, as late as 1855 or 1856, of all her interest in the land, of which he had been in possession fifteen years continuously and adversely.

The earliest period, then, when the defendants can be considered as holding adversely to the plaintiff, is the time when Darst conveyed to Franks, and he (as it is admitted) took possession under his title bond on 1st July, 1851, but at that time the plaintiff and his sisters, whose shares in his mother’s estate he claims, were under the disability of minority. And taking into consideration the time between 28th January, 1861, and 30th March, 1870, during which the statutes of limitation were suspended, there is no ground upon which to insist that the plaintiff’s action was barred by the limitation of ten years at the institution of this suit on the 25th November, 1871.

The plea of five years’ limitation must also fail. There is no sufficient proof of the payment of the taxes on the land by the defendant. And if the circumstance which, under the statute, renders that plea available, had been fully proven, the minority of the plaintiff would avoid it, at least so far as relates to his share of the estate of his mother in the land, and as to his right to inherit his sister Zerilda’s part of her mother’s estate.

Has then the plaintiff proved his title to the land and the quantity recovered by him?

At the death of his mother, it follows from what we have said, that she was entitled to one-fourth interest in the land in suit. She was also entitled, as an heir of the whole blood of her sister Nancy, to two-fifths of the one-fourth which Nancy inherited. At the death of Nancy, leaving no children, her husband did not inherit any part of her estate. Act of December 18, 1837.

Of his mother’s interest, ¡Roswell Hancock inherited in, his own right one-third. He also inherited from his sister Zerilda, who died a minor and unmarried, in 1863, her share of her mother’s interest. But he did not inherit the whole of the equal third of his sister Mary in her mother’s estate.

The proof is that Mary was married to Pat Garvin; that she died leaving no issue, and that her husband survived her. By the statute of 1848 he, therefore, inherited the one-half her interest in this land derived from her mother, and Boswell and Zerilda the other half; and upon the death of Zerilda, Boswell inherited with her third of her mother’s estate .in the land, this her fourth part of her sister’s estate. Thus, the interest in the half league to which the plaintiff upon, his proof was entitled was seven twenty-fourths, and for this interest the judgment of the court was rendered in his favor.

While, therefore, his petition was not obnoxious to the demurrer interposed, the proof shows that he was not entitled to the quantity of land that he claimed in his petition. It set out sufficiently his cause of action. It described fully, if not truly, the nature of his claim to the land for which he sued. It was not necessary that he should allege the several interests of the defendants in the land which they held in common with him,' but it devolved upon him to show in this suit, brought for the partition of the land, that the whole interest therein was in himself and the defendants, and this he failed to do. When, then, it appeared in proof that Pat Garvin had an undivided interest in the land as heir of his wife to one-half interest, it -was the duty of the court to suspend the trial of the cause and direct that he be made a party. • And as this course was not pursued, the judgment is fatally defective and must be reversed.

The rule, and the reason of the rule, which requires this, are well expressed by Mr. Justice Moore' in Ship Channel Co. v. Bruly, 45 Tex., 6: “ Where a bill is brought for partition, the plaintiff must not only state his own title, but also the title of the defendants. It must appear that the parties to the suit, among them, are entitled to the whole estate, otherwise no final and binding decree of partition can be made, even as between the parties before the court, for at any time the owner of the other interest may also sue for partition. And in such event the former partition would be of no effect. If not, he would have to take his purpart from one or more of the several parts into which the estate had been divided, instead of from the entirety. Tó give any effect to the suit, as against him, would be to change his estate from a tenancy in common with those owning the other interests in a single tract of land, into a like estate with each of the co-tenants, in as many tracts as the lands may have been divided. Evidently this cannot be done by a proceeding to which he is not a party. . . . Though no objection was, or could have been, made to the petition, when, in the course of the trial, it became apparent that there were necessary parties who were not before the court, it should have stopped the case and required them to be brought in before making a decree.”

We shall notice briefly the other grounds of objection to the judgment urged by the appellant, as they may be the subject of contention upon another trial.

It is insisted that, if the plaintiff is entitled to anything, ’ it is to an undivided interest in the whole league of land, and that he cannot elect to have his whole interest in the land set apart to him out of this half league sold to Franks. But this position is not tenable. That Mrs. Darst took the upper half of the league for her community share in the land is an admitted fact. Franks purchased from Darst, not an undivided interest in the land, but a tract by specified boundaries, abutting upon the land which he knew, or was bound to know, had been already appropriated as the separate share of Mrs. Darst, recognized and acquiesced in by the heirs of Jacob Darst. The information of these facts lay directly in the line of the derivation of his title. The plaintiff here does not assail that partition, nor can Franks, chargeable with knowledge of it, object to it. If the plaintiff is content with it, it does not concern the defendants. They have no equities which would entitle them to have the interest of the plaintiff in the league taken in whole or in part out of the other half, long in the rightful possession of bona fide purchasers, who have paid for it and improved it. Arnold v. Cauble, 49 Tex., 527; Willis v. Gay, 48 Tex., 463.

[Opinion delivered October 19, 1880.]

A bill of exceptions was taken to the exclusion of proof of the value of defendants’ improvements.

The interest claimed by plaintiff was an undivided interest. The decree of the court directed that the improvements of the defendants should be respected by the commissioners in making partition, and the necessity is not apparent for ascertaining in the decree the value of those improvements, which, in the division, may be allotted to the defendants.

Upon the subject of limitation, as possibly upon another trial the defendants may be able to make full proof of the facts required to sustain the prescription of five years, it may not be improper to observe that the general rule is, disabilities cannot be piled one upon another, for thus, as is said by Lord Eldon, disability might travel through minorities for centuries.” Angelí pn Lira., 2Í2. What portion, if any, of the estate of Mary Garvin fell to plaintiff, or his sister Zerilda, may depend upon the date of her marriage, which is not proven in this record. The statute of five years would begin to run from that time against all persons claiming under her, whether minors or not.

For the error indicated we conclude that the judgment should be reversed and remanded, and so award.

[Reversed and remanded.


author: A. S. Walkek, J.

text:
    R. S. Simpson, Adm’r, v. Thos. J. Knox, Adm’r.
    (Case No. 3197.)
    1. Non-resident — Jurisdiction of probate court.—The probate courts of Texas have jurisdiction over the assets of a non-resident, who, dying at his domicile, leaves credits in this state. Jones v. Jones, 15 Tex., 465; Green v. Hugely, 23 Tex., 539.
    2. Laws of the domicile — Distribution of personal property— Jurisdiction.—The laws of the domicile direct and control the distribution of the movable property of the intestate; but when the jurisdiction of a court other than that of the domicile has been in-yoked in the administration, such administration is governed in its proceedings, in its beginning, progress and close, by the laws of the country granting such letters; and administration in Texas cannot be controlled in its mode of collecting the assets of an estate by the courts of the domicile of the deceased. Wilkins v. Ellett, 9 Wallace, 740; Story’s Con. L„ 509-513, 514, 516, 518; Pas. Dig., 5490.
    8. Interest — Administrator chargeable with, when he resists.— In a suit against an administrator he may save interest by tendering into court the money remaining in his hands; but if he resists the proceedings of one entitled thereto, it is proper to charge him with interest from the time the money should have been paid over, or demand made.
    4. Classifying claim against an estate.— Where suit was pending at the date of the defendant’s death, and was continued by his administrator, the proceedings are such an exhibition of the claim as will warrant the grading of it in the judgment rendered thereon.
    6. Defense not good.— See this case for a defense to an action held not good.
    ■ Appeal from Burleson. Tried below before the Hon. A. 5. Broaddus.
    December 26, 1870, B. H. Knox sued in the court below, as the administrator of the estate of Sarah Knox, deceased, in the state of Texas, to recover of E. C. Knox, former administrator of the estate of Isaac J. Knox, and John Ewing and William F. Grant, sureties on his official bond as such administrator, for the sum of $7,424.75, with legal interest thereon from the 31st day of May, A. D. 1869. B. II. Knox having died, T. J. Knox was appointed administrator de bonis non. The letters of administration were issued by the probate court of Brazos county, Texas.
    The petition substantially alleged that, in an administration in Burleson county, Texas, the defendant, E. O. Knox, as administrator of I. J. Knox, in the final settlement, had admitted assets and funds on hand, going and belonging to the estate of Sarah Knox (plaintiff’s intestate), in the sum of $7,424.75, which sum, in the order discharging saidE. 0. Knox, was directed and ordered to be paid to one Thomas Lanier, who was administrator of the estate of said Sarah Knox in Pickens county, state of Alabama. That said money never had been paid to Lanier, but is. still owing the estate of Sarah Knox; that Lanier and his sureties are insolvent, and largely indebted to the heirs of said deceased. That five of seven of the heirs of said Sarah Knox reside in, Texas; that it is feared that the administrator, E. 0. Knox, may pay or make some settlement with said Lanier, to defeat this suit, and defraud the estate represented by plaintiff; that should defendant, E. 0. Knox, pay the fund to Lanier, the estate of Sarah Knox would lose the said money entirely ; prayer was for an injunction, which was granted and issued.
    The defendants answered by general demurrer and denial, and on August 12, 1871, filed a special plea setting up proceedings had in September, 1870, in the probate court of Pickens county, Alabama, as affecting this fund sued for. The substance of the answer, as set out in the brief of the counsel for appellant, is as follows:
    That Sarah Knox died in Pickens county, Alabama, the place of her residence, and that administration upon her estate was granted at the September term, 1858, of the probate court of that county, to Thos. 0. Lanier, and that the •administration granted in this state is ancillary only; that at the January term, 1870, Lanier was removed by the probate court of Pickens county, Alabama, and Stone appointed administrator in his stead; that at the September term, 1870, a final settlement and distribution of the estate of Sarah Knox was made among her heirs, after legal notice had been given, and the court in all things having jurisdiction of the parties and subject-matter; that among the property so distributed was the- fund of $7,424.75, in the hands of the defendant, and for the recovery of which this suit is brought; that said decree is a final settlement of said estate, there being no debts against it, either in Texas or Alabama.
    Attached to the answer is a transcript of the record of the probate court of Pickens county, Alabama, showing:
    1. The grant of letters of administration upon the estate of Sarah' Knox to Lanier, September 13, 1858.
    2. Various proceedings appertaining to the management of the estate, which it is not necessary to recite.

      3. On the 4th of December, 1869, certain creditors of the estate of Sarah Knox, deceased, filed their petition for the removal of Lanier from the administration of the estate. Various orders in reference to this application were made, until the February term, 1870, when an order was entered reciting that Lanier had been duly required by an order of the court, on or before the 14th of December, 1869, to give a new bond, which he had failed to do, and removing him from the administration, and Stone was therefore appointed administrator de bonis non, with bond of $1,000.
    4. On the 8th of March, 1869, Lanier filed his account current, asking for a final settlement of his administration, and it was ordered that the matter of such settlement be set for hearing on the second Monday of April, 1869, and that notice of such settlement be given by publication for three successive weeks in the West Alabamian, a weekly newspaper published in the county, notifying all persons in interest to appear and contest if they think proper. On the second Monday in April, 1869, an order was entered, continuing the application to the second Monday in December, 1869. And the settlement was again continued to the 26th of September, 1870.-
    At a term held on the 26th of September, 1870, the application for final settlement came on to be heard. The order recited the appearance by attorney of B. H. Knox and Thos. J. Knox, and further recites: “ And it appearing to the court that due and legal notice of the time, place and matter of this settlement has been given by publication in the West Alabamian, a weekly newspaper published in said county, for three successive weeks, according to the previous order of this court, by which publication all the parties in interest were brought before the courtand then proceeds to state, audit and determine the accounts of the administrator, Lanier.
    After ascertaining the amounts due and paid to each of the heirs, some of whom had received more than their-share .of the funds in Alabama, the order continues: “And it being shown to the court by proofs that there is a fund in the hands of Everard 0. Knox, as the administrator of I. J. Knox, deceased, late of the state of Texas, of Burleson county, amounting to the sum of $7,424.75, which fund the chief justice of the county court of Burleson county, state of Texas, which court has charge and jurisdiction of said fund of the estate of Isaac Knox, deceased, and was ordered and decreed heretofore that E. 0. Knox, administrator as aforesaid, do pay to T. 0. Lanier, as administrator of Sarah Knox, deceased, as aforesaid, in Pickens county, Alabama, said fund, to wit, $7,424.75, for the purpose of distribution and equalization of advancements among the heirs and distributees of Sarah Knox, deceased, and the said T. 0. Lanier, administrator, as aforesaid, and the said L. M. Stone, as the administrator de bonis non of said Sarah Knox, deceased, in Pickens county, Alabama, consent that there be equalization among said distributees of the said Knox, deceased, out of said funds and moneys in the hands of E. 0. Knox,” etc. It then decrees that there shall be paid out of the said sum in the hands of E. C. Knox, administrator, various sums to the heirs of Mrs. Sarah Knox, so as to make equal their distributive shares.
    Subsequently, on the 26th of November, 1874, the defendants amend their answer,"alleging the partition and distribution of the estate of Sarah Knox, by the same decree of the probate court of Alabama.
    On the 2d of December, 1875, the plaintiff demurs to the pleas filed on the 12th of April, 1871, and November 26, 1874, setting up the decree of the probate court of Alabama.
    On the 3d of December, 1875, the defendants again amend, alleging that there were and are no debts existing in the state of Texas against the estate of Sarah Knox; that no part of the sum of $7,424.75 is required for the payment of claims against her estate in Texas or elsewhere, and that her estate was ready for distribution long before letters were issued in Texas. That the fund ordered to be paid to Lanier had been distributed by the probate court of Alabama, and that the whole of the fund of right belongs to the defendant, E. C. Knox, and to Sarah Flowers, another of the heirs of Mrs. Knox.
    The plaintiff, by amended petition, set up matters in avoidance. But as the pleas were stricken out, such matters of replication need not be stated.
    Pending the suit W. F. Grant, one of the sureties of E. C. Knox, died, and his administrator, K. S. Simpson, was made a party defendant. December, 1875, demurrers to the special plea and amendments thereto were sustained, and the case was tried upon the plaintiff’s pleadings and the general denial.
    Judgment was rendered for plaintiff upon a verdict for $10,988.63, which was for the sum sued for, and eight per cent, interest.
    Simpson, administrator of Grant, one of the sureties, alone appeals.
    The errors assigned and relied on in the appeal relate, fourth and fifth, to the action of the court upon the exceptions of plaintiff to the special plea "of defendants and the several amendments.
    10. The verdict is excessive.
    11. Error in classifying the judgment as a claim of sixth class against estate of Grant.

      Sayles dé Bassett and Davis dé Beall, for appellant. '

      John JV. Henderson, for appellee.
   A. S. Walkek, J.

The principal question, as insisted by counsel for appellant, presented by the record is, “ Do the matters set up in the defendants’ several answers constitute a defense in this suit?”

This question involves the consideration of the rights and powers of Texas probate courts to control assets of a nonresident dying at his domicile and leaving credits in Texas.

An application for letters of administration was granted in December, 1869, by the probate court of Brazos county,

Texas, to the original plaintiff. The regularity, necessity or propriety of the action of the court in granting this administration is not in this record questioned. The existence in Texas of assets gave jurisdiction over them to the courts of this state." Pas. Dig., 1260; Jones v. Jones, 15 Tex., 465; Green v. Rugely, 23 Tex., 539. This jurisdiction is not dependent upon the existence or non-existence of any other administration at the place of domicile or elsewhere.

The administrator, so appointed had, under the law, the right to collect the debts owing the estate; to reduce to possession the assets subject to the authority appointing him.

His suit in the district court was properly brought. Francis v. Northcote, 6 Tex., 187. His right to recover on the merits upon the pleadings and the testimony is evident. From the final decree of partition in the estate of I. J. Knox, acknowledging that $7,424 was allotted to the estate of plaintiff’s intestate, Sarah Knox, nominally represented by Lanier, it is evident that the debt sued for was assets subject to the administration represented by the plaintiff.

It seems to have been conceded in the progress of the suit that Lanier, the foreign administrator, was not a safe, custodian of these funds. At least the allegation of his insolvency and that of his bondsmen contained in the bill seeking an injunction was not denied. From the answer and its exhibits it appears that Lanier in fact was largely indebted to the distributees of the estate on account of funds he had received.

As a mere suit to collect assets, the suit was legally brought, and it would seem to have been a necessary precaution for the safety of those interests in the estate that the injunction was granted.

The principal controversy, as stated before, arising in the case, and discussed in the brief of counsel, is upon the sufficiency of the special plea and the various amendments to it, and in the various forms the facts were pleaded, setting up the decree of the probate court of Alabama. The defense was held insufficient on exceptions.

It is not necessary to notice the details of the special plea or the merits of any of the items in it as independent facts in defense, for if the Alabama decree be a defense to any extent, it would be conclusive of the entire action.

The Alabama decree disposed of the fund sued for, and purported to have been made in an administration had on the estate at the domicile of the intestate.

If this decree acted directly upon the fund, having it within the jurisdiction of the court, then such adjudication would be final and the plea a bar in this suit.

An inspection of the copy of the decree made an exhibit to the answer (and forming the basis of all the excluded pleas) shows that this fund, at the date the decree was rendered, was in the state of Texas; that it had never been reduced to possession by Lanier, had not been charged against him in his administration; that neither Lanier nor the court appointing him had control of it, nor had attempted such control prior to that date.

As matter of fact, then, apparent on the face of the proceedings, the fund was not in possession of and subject to the disposition of that court. The jurisdiction of the court did not attach to the fund. Freeman on Judg., §§ 116, 608.

The direct control by the court of the property necessary to its disposition, or the jurisdiction over it, differs from the right conceded to the courts of the domicile to determine the course of descent and the final disposition of the residue left after payment of debts, etc.

It is not disputed that the laws of domicile direct and control the distribution of the movable property of the intestate; nor that ordinarily, by comity of nations, the final distribution of assets is conceded to the administration of the domicile rather than to ancillary administrations which may exist in other countries. Wilkins v. Ellett, 9 Wall, 740.

It is equally the rule that when the jurisdiction of a court other than that of the domicile has been invoked in administration, such administration is governed in its proceedings, in its beginning, progress and close, by the laws of the country granting such letters. Story, Con. Laws, 509, 513, 514, 516, 518, and cases cited; Jones v. Jones, 15 Tex., 465; Green v. Rugely, 23 Tex., 542; Pas. Dig., 5490.

The probate courts of Alabama have no extraterritorial authority. Though conclusive within their jurisdiction, acting under their own laws, they are confronted in Texas by her local laws and her courts of probate with equal powers.

In December, 1869, letters of administration on the estate of Sarah Knox, in Texas, wrere granted to the plaintiff. From that date, the estate in Texas was represented by plaintiff, and not by Lanier. Bjr the filing of this suit and the injunction against Lanier’s obtaining the funds, the authorities in Texas exercised a further control over this fund. It was in litigation; its disposition submitted to the courts of Texas. The fund being under control of the orders of the Texas courts, their jurisdiction over it was, under the laws, full and exclusive. The grant of administration determined the status of the assets as subject to the administrator. The fund was in this condition when, in September,. 1870, the Alabama court by its decree assumed, for it had no actual, control, and attempted to dispose of it.

Will it be contended that fthe Alabama court could oust the l local jurisdiction so exercised by the courts of Texas over the fund in its actual control, by the exercise of its legal grant of administration ?

We consider that the Texas court has the exclusive jurisdiction for the purposes of the grant of administration of this fund. It follows that the administration must proceed and be closed under the laws of the state.

This conclusion follows regardless of the validity or invalidity of the decree. In ascertaining the rights of those who were parties to it to the»estate, it may, or may not, be final. That question is not presented. It is not examined, nor its effect considered, 'further than to ascertain that it is ineffectual to control,the plaintiff in his collection of the assets within the jurisdiction of the court from which his authority is received.

We conclude, therefore, that there was no error in sustaining exceptions to the special answer of the defendants.

We hold:

1. That the administration in Texas cannot be-controlled in its mode of collecting the assets of the estate by the courts of Alabama.

Opinion delivered October 25, 1880.]

2. The effect of the decree as a partition rendered by the courts of Alabama in the administration of the domicile is in no way passed upon. If its adjudication be conclusive of the rights of the heirs, it may be used in evidence in the probate court, and will be respected. If not conclusive, its defects can then be met by those opposing its effect.

3. Aside from the deoree there are no sufficient equities set up in defense to require the allowance of the claims sought to be asserted in the answer as a defense. The defense to the action is not good. Atchison v. Smith, 25 Tex., 231, and cases cited.

i. That interest was allowed is not error. The defendants resisted payment by every possible means. Had they tendered the money and sought protection by the court in such payment, interest would have been saved.

5. Suit against Grant ivas filed in his life-time. Such proceedings, continued by the administrator becoming party to the suit, is an exhibition of the claim such as to warrant the grading of the claim as wras done in the judgment.

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

Affirmed.