text:
    A. H. Rippetoe v. Thomas Dwyer.
    (Case No. 4040.)
    1. Pleadings — Amendment — Limitation.— Where a mistake in the mode of pleading the plaintiff's case, as to the form in which the allegations shall appear of record, is susceptible of amendment, the amendment relates back to the filing of the original petition, and is not a setting up of a new cause of action against which the statute of limitation would run to the time of filing such amendment. Connolly v. Hammond, 51 Tex., 647; Killebrew v. Stockdale, 51 Tex., 531; Tarkinton v. Broussard, id., 554; Scoby v. Sweat, 28 Tex., 529; Becton v. Alexander, 27 Tex., 659; Thouvenin v. Lea, 26 Tex., 614; Wells v. Fairbanks, 5 Tex., 582.
    2. Sheriff’s deed—Recitals in.— The recitals in a sheriff’s deed that a particular interest in land had been levied on and sold will not conclude the purchaser at the sheriff’s sale from showing, by the process under which the sale was made and the decree of foreclosure, that a sale of an interest other than that recited in the deed was actually offered for sale and sold, and that the purchaser became entitled to what he actually bought, although additional to that described in the deed as having been levied on.
    3. Evidence—Recitals in sheriff’s deed—Pendente lite.—The recitals in a sheriff’s deed are evidence of what was sold, but they are not conclusive. The sheriff’s sale conveys to the purchaser whatever of title was subject to the sale as indicated in the decree of foreclosure, and in the order of sale. It is a doctrine as old as our jurisprudence, that a purchaser pendente lite takes only such title as his vendor could give; takes subject to the result of the pending legal proceedings. Briscoe v. Bronaugh, 1 Tex., 333; Lee v. Salinas, 15 Tex., 497; Tuttle v. Turner, 28 Tex., 773; Baird v. Trice, 51 Tex., 555.
    Appeal from Washington. Tried below before the Hon. A. S. Broaddus.
    This was an action of trespass to try title brought in the usual form by appellee, Thomas Dwyer, in the district court of Washington county, on the 22d of February, 1873, against appellant, A. H. Rippetoe, and his tenant, Julius Tainschusky, to try title to part of lot 43, in the city of Brenham, in Washington county, and for rents and damages, setting up the particular title under which plaintiff claimed the lot.
    The defendant pleaded not guilty. On a former trial judgment was rendered for plaintiff. The case was appealed. It is reported in 49 Tex., 498. In the opinion is given a statement of the principal facts (pp. 503, 504).
    January 13, 1879, the plaintiff amended his petition in the nature of a supplemental petition, alleging that the judgments under which the defendant held the lots were obtained by fraud, and that the sale by the sheriff under the said judgments, and Rippetoe’s purchase, was fraudulent. The amended petition alleged specifically the facts which had been introduced in evidence in rebuttal to the defense on the former trial.
    September 3, 1879, the defendant excepted to the petition as amended, because setting up a new cause of action which wTas barred by limitation, and because attempting to destroy a judgment by collateral attack, etc.
    The defendant, further amending, pleaded specially his defense. The foreclosure suit began Fe bruary 29,1860, by Testard y. W. B. Presley, to foreclose a vendor’s lien upon certain town lots (among them the lot in controversy), judgment, appeal and reversal. On return of mandate 18th February, 1867, making Perryman a party defendant, final judgment for $326.91, and decree ordering sale of the lots, rendered October 17, 1870. Also another suit by Harris, executor of Key, March 11, 1868, against Presley and Perryman on another purchase money note, part of same purchase, asking decree for foreclosure. Decree October 24, 1870.
    ■ That pending the first said foreclosure suit,"February 19, 1861, Presley sold apart of the lots included in s.aid proceedings, and that defendant became purchaser and subsequently sold it, giving warranty deed, said property subsequently coming into the hands of Phlugart and Perryman. That for the purpose of protecting himself, the said Phlugart on April 16, 1870, bought said notes sued on, with the understanding that the suits should be prosecuted in names of the original plaintiffs, he to control them. Subsequently defendant bought a two-thirds interest in said notes for purpose of protecting himself; that the owners of the other parts of the lots secured by said vendor’s lien refused to aid defendant in discharging said lien. That November 28 and 29, 1870, the district clerk issued executions and orders of sale respectively on said judgments, under which, and at sheriff’s sale regularly made, defendant bought said lots at $100, which, from the condition of title and of adverse claims, was as much as their value.
    And further, as to the acts relied on by the plaintiff as fraudulent, the defendant pleaded the statute of limitation of two years; also limitation of the lot for three and five years uúder the conditions of statute of limitations before the amended petition was filed.
    September 4, 1879, plaintiff by supplemental petition alleged that under his original purchase he had had possession of the lot sued for down to the time of his eviction by Eippetoe, and in good faith had erected there'on valuable improvements worth $5,000; that said entry by defendant was obtained partly by force and partly by fraud and collusion with plaintiff’s tenants. . . That at the time of said illegal entry plaintiff was not aware of the claim of right under which defendant afterwards claimed. The defense in the suit was only the plea of not guilty, and that plaintiff did not learn nor have opportunity to learn, the same until the former trial, had September 16, 1874, when the defendant’s said title appeared in evidence; that on said trial a verdict and judgment were rendered for plaintiff for the premises, besides a money judgment for rents; that defendant took an appeal, which remained undecided until May 14, 1878, when the judgment was reversed and the cause remanded for further proceedings. Mandate issued December 24, 1878; that upon said trial September 16, 1874, it appeared that the defendant claimed under a purchase by him made January 3, 1871, under the said decrees, orders and executions. . . “And plaintiff now here having an opportunity for the first time since the defendant’s said title and claim first came to his knowledge, shows unto the court,” etc.; alleging that the judgment in the case of Harris, Administratrix of Key, v. Presley et al., was not conclusive as to the rights of plaintiff, suit having been brought in 1868, long after plaintiff’s purchase, and after he had possession, and to which plaintiff was not made a party, etc.; that plaintiff had had possession from March 16. 1861, until after said sale, and had no notice of the suit by Testard, Plaintiff, v. Presley. . . . That the said sheriff’s sale and the purchase by Eippetoe, and all anterior proceedings thereto, were fictitious, fraudulent and void as against plaintiff. . . That the purchase was made in furtherance of a conspiracy between defendant and others to use said proceedings for the purpose of sacrificing the rights of plaintiff and others under the forms of law, by using the note actually paid off as a bribe for selling, etc. . . . That both of said debts had been paid off before the rendition, which Eippetoe well lchow, while he, with others named, fraudulently obtained and used the judgment, etc.
    That the doctrine of Us pendens and of privity ought not to apply, because of the gross laches of the plaintiff in said suit in not prosecuting it to judgment, to all of which Eippetoe was party and privy, etc.
    The exceptions of the defendant to the amended petition were overruled.

      A synopsis of the material facts in the case, extracted from the brief of appellant, is as follows:
    1. Deed from Presley to Jennings, dated February 19, 1861, for that part of lot 43 in controversy in this suit.
    2. Deed from Jennings to Dwyer, dated March 16, 1861, for the same lot.
    3. Deed from the sheriff to Rippetoe, dated January 5, 1871, for lot 43 and part of lot 90.
    4. Parol testimony that Dwyer and those under whom he claims had possession of the lot in controversy from the time of their purchase of Presley till January 6, 1871, when Rippetoe took possession.
    5. That Rippetoe at one time owned the northeast corner of lot 43, under mesne conveyances from Presley, and was a remote vendor and warrantor of Perryman.
    6. That prior to the 17th and 24th days of October, 1870, Presley had sold all parts of lots 43 and 90 purchased by him of Browning, and that Perryman had no interest in either, except said northeast corner of lot 43 claimed through Rippetoe, as his remote warrantor.
    7. That pending said two suits, and before the rendition of said judgments, Rippetoe purchased the notes in said suits, paying the plaintiffs the full amounts of their respective demands, with the understanding and agreement that the suits might be prosecuted to judgment in name of the original plaintiffs for the use and benefit of Rippetoe, who assumed all liability for costs in said suits.
    In thi§ connection it was made to appear, on the part of defendant Rippetoe, that his principal object in purchasing said notes and in making said stipulations was to protect himself and his vendee from loss by reason of said suits.
    The defendant Rippetoe’s evidence of title as shown by the record was:
    1. Deed from Browning to Presley for lot 43 and part of 90, dated February 19, 1859, recorded June 18, 1859, and reciting that the notes sued on were given for balance of unpaid purchase money.
    2. On the 29th February, 1860, A. Testard, as assignee of one of saicl notes for the use of Lowery, instituted suit thereon in the district court of Washington county, praying for judgment and foreclosure of the vendor’s lien on said lots 43 and 90.
    3. On the 21st April, 1860, judgment with foreclosure of the vendor’s lien on said lots was rendered in said suit against said Presley, who, on the 29th September, 1860, removed the cause by writ of error to the supreme court, where, on the 18th February, 1868, the cause was reversed and remanded to the district court, where, on the 17th day of October, 1870, judgment, with decree of foreclosure of the vendor’s lien on said lots, was again rendered against • said Presley and Perryman.
    4. On the 28th November, 1870, an order of sale was issued on said judgment, and decree of foreclosure directing the sheriff to sell said lots to satisfy said judgment.
    5. A similar suit was commenced on the 18th of March, 1868, by E. D. Harris, on one of said notes, against Presley and Perryman, for a like purpose as the Testard suit; proceedings and sale thereunder are precisely similar to those in the Testard suit.
    6. Under the orders of sale issued on said decrees of foreclosure, the said lots were advertised for sale in accordance with law, and on the 3d day of January, 1871, as appears by the sheriff’s returns on said orders of sale, said sheriff sold said lots at public auction, as required by law, when appellant Eippetoe bid the sum of $50 at the sale under each of said executions, which were struck off to him by the sheriff for that price, which Eippetoe paid to the sheriff.
    7. Eippetoe, in his own behalf, stated that the lots were sold by the sheriff under said orders of sale in the usual way such sales are made; that he bid $50 for the lots under each of said orders of sale; that the lots were struck off to him for that price, under each sale, which amount he paid to the sheriff.
    8. It further appears from the record, as shown by Eippetoe, that the Testard suit to foreclose the vendor’s lien on .said lots 43 and 90 was filed 29th February, 1860, and was pending from that time till the decree of foreclosure was rendered 17th October, 1870; and that during the pending of this suit, to wit. on the 19th February, 1861, about a year after the suit was filed, Presley sold the lot in controversy to said Jennings, who, on the 16th March, 1861, thereafter sold and conveyed the same to appellee Dwyer.
    Verdict and judgment were rendered for the plaintiffs for the lot and for $2,083 rents.
    Motion for new trial was overruled, and defendant appealed.
    The errors relied upon and discussed relate to the overruling of the exceptions to the amended and supplemental petitions; chiefly because a new cause was set up therein, barred by limitation.
    Refusing instructions asked by the defendant; chiefly refusal to charge that Dwyer, the plaintiff, was bound by the foreclosure decree if a purchaser pendente lite.

    And in its charge given to the jury in instructing them substantially:

      “ That it appeared from record evidence that on the 17th and 24th days of October, 1871 (the dates of the rendition of the judgments), the said Presley and Perryman had no interest in the lot in controversy, and that the sheriff’s deed purporting to convey only such interest as they then had in said lot, defendant Rippetoe took no title, by his purchase, to said lot.”
    In the disposition of the assignments which may be noticed, such additional facts will be given as are deemed necessary to'their proper explanation.

      Breedlove & Ewing and T. W. Morris, for appellant.

      Sayles & Bassett, for appellee.
   A. S. Walker, J.

The second and third errors relate to the law of limitations as applied to the plaintiff’s case as made in his pleadings.

It is insisted (1) the attack upon the title of appellant, Rippetoe, on the ground of fraud, presented a- new and distinct cause from that set up in the original petition, which appeared to be barred when the amendment was filed; and (2) in cases of fraud, limitation begins to run from the discovery of the fraud, or from such time as it might, by due diligence, have been discovered; and that these principles apply to and avoid the effect of the facts as a replication, against the title pleaded by the defendant.

The object of the suit was the recovery of the lot. The cause of action is the alleged unlawful taking and holding possession of it. The original petition sufficiently indicated this cause of action. The defendant only pleaded not guilty, but he introduced as a defense the sheriff’s deed and foreclosure pi'oceedings, orders of sale, etc.; to this the plaintiff, on the former trial, replied by introducing testimony to facts constituting, as was insisted, fraud, such as would avoid the sale. This right on appeal the court held was only to be allowed as pleading the facts. By amendment they were pleaded. They were not in fact or intent a new cause of action, but a practical replication to the defendant’s case as made by his testimony. The amendment was to correct an error in omitting to plead in detail the plaintiff’s case. The facts were alleged and offered to show fraud in the foreclosure proceedings on part of Bippetoe and his associates, culminating in the taking possession of the lot under the fictitious decree, order of sale,” etc. There was no laches in asserting his rights by Dwyer. He promptly sued, is still suing for the same thing; and has only perfected the petition so as to avail himself of his case. It would be a harsh rule to require of the plaintiff perfect pleadings, under the penalty of losing the benefit of his facts upon a mistake as to the form in which the allegations shall appear of record. In short, that the plaintiff was on appeal held to a specific pleading of the facts avoiding the title developed in the defense under the plea of not guilty, will not attach to such pleading, when promptly amended so as to conform to the rule imposed by the supreme court, the taint of laches such as would result from an acquiescence in Bippetoe’s taking the property up to the time of the. filing of such amendment.

While the party injured by the fraud is held, at the peril of a seeming acquiescence, to an assertion of his rights within a reasonable time, such assertion in this case is present. The suit for the property is promptly brought and vigorously prosecuted. The omission regarded as evidencing laches is at most but a mistake in the mode of pleading the plaintiff’s case, in asserting the illegality of the sale from the alleged fraudulent acts of the defendant. This was susceptible of amendment, and the amendment would relate to the filing of the original petition. Connolly v. Hammond, 51 Tex., 647; Killebrew v. Stockdale, 51 Tex., 531, 532; Tarkinton v. Broussard, 51 Tex., 554, 555; Scoby v. Sweatt, 28 Tex., 713; Becton v. Alexander, 27 Tex., 659; Thouvenin v. Lea, 26 Tex., 614; Wells v. Fairbanks, 5 Tex., 582. We understand the rule of pleading to be that the statement of evidence by which an allegation is supported is not a new cause of action; the rule would not be changed upon such statement being necessary in practice to its introduction.

The seventh and eighth assignments of error relate tp the one subject. A charge refused being “ to the effect that a party purchasing property during the pendency of a suit, in which it is the subject of litigation, will be bound and concluded by the judgment therein, the refusal to give which is one of .the grounds in the seventh assignment.”

The court on same subject gave the following: “That Presley and Perryman having sold all their interest in the lot in controversy prior to the rendition of the judgment of foreclosure on the 17th day of October, 1870, and the sheriff’s deed reciting that he conveyed all the interest Presley and Perryman then had in the lots sold by him, Rippetoe took no title by his purchase under the order of sale.”

The facts to which the charge was intended directly to apply are substantially as follows: The sheriff’s deed recites that by virtue of orders of sale issued on the decree of foreclosure rendered on the 17th and 21th days of October, 1870 (specifying the suits), directing him to sell the lots, describing them, he levied upon “all the interest Presley and Perryman had in the lots on the 17th and 21th days of October, 1870,” and on the first Tuesday in January, 1871, sold said premises, and at said sale said premises were struck off to Bippetoe for S50, under each execution, in consideration of which, and the payment of the purchase price, he conveyed to Bippetoe “all the estate, right, title and interest Presley and Perryman had in said lots on the 17th and 24th days of October, 1870, or at any time afterwards.”

“ To have and to hold the above deeribed premises unto the said Bippetoe, as f ully and absolutely as he, as sheriff,\ could convey by virtue of the said writ and orders of sale.”

In this connection the appellee submits as counter-propositions sustaining the instructions given by the court, the following:

First. The recitals in a deed of a sheriff as to the manner in which he executed a judgment directing the sale of property, and of the interest conveyed, are evidence against the grantee and parties claiming under him.

Second. The deed executed by the sheriff is the primary evidence of the contract of purchase, and of the extent of the interest acquired by the purchaser; and the legal effect of the deed cannot be changed by parol evidence of the intent of the parties thereto.

Whatever may be the general rule as to recitals, we do not see that the recital by the sheriff, that he levied on and sold a particular interest in the land, would conclude the purchaser from showing, by the process under which the sale was made and the decree of foreclosure, that a sale of an interest other than that recited in the deed was actually offered for sale and sold; and that the purchaser became entitled to what he actually bought, although additional to that as described in the recitals in the deed as having been levied upon, etc. While these recitals may be evidence, they are not conclusive. The foreclosure proceedings, the decree, order of sale and sheriff’s return, were also competent evideuce of what was sold by the sheriff; who, in the execution of the order, was but a ministerial officer, authorized and directed to make the sale. Actual levy was unnecessary, and a mistake in it, or a misrecital as to it, could not affect any rights of the parties.

[Opinion delivered June 21, 1880.]

The sheriff’s sale conveyed to the purchaser whatever of title was subject to the sale as indicated in the decree of foreclosure and in the order of sale. Its effect was .not destroyed by the recital in the deed, or in his return as to the mode of making his levy. The decree of the court and the order of sale directed the sale of the lot; the sheriff sold it. His deed evidenced the sale as having been made. It is a doctrine old as our jurisprudence, that a purchaser pendente lite takes only such title as his vendor could give; takes subject to the result of the pending legal proceedings. Briscoe v. Bronaugh, 1 Tex., 335; Lee v. Salinas, 15 Tex., 497; Tuttle v. Turner, 28 Tex., 773; Baird v. Trice, 51 Tex., 555.

The charge of the court limiting the effect of the sale to the interest had by the defendants in the foreclosure suit at the time the decree was rendered was error. The defendant, by appropriate charge, asked its correction, and it "was refused.

For this error in the charge of the court, the judgment should be reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    J. W. Nance v. Wash. Warren.
    (Case No. 3623.)
    1. Specific performance—Payment of purchase money under garnishment proceedings.— Payment by a vendee of the amount due his vendor under a contrast for the purchase of land, on a judgment against him as garnishee, in a suit against his vendor, is a sufficient payment of the purchase money to entitle him to specific performance. Scarborough v. Arrant, 35 Tex,, 139.

      2. Verdict — Proof conflicting.— Where the proof is conflicting, the jury are the judges of the weight of the testimony and the credibility of the witnesses; though the verdict may fail to satisfy the court on appeal, it cannot be disturbed.
    Appeal from Brazos. Tried below before the Hon. Spencer Ford.
    This suit was instituted by Warren against Nance to enforce the specific performance of an agreement for the sale of a tract of land.
    The allegations of the petition as amended are, substantially, that on the 10th February, 1872, Warren purchased from Nance thirty-five acres of land, paying him cash $75, and delivering to him> his note for $170, due 1st January, 1873, with interest; that Nance made him a bond to make title to him when the note should be paid; that he went into possession of the land; that one Gottschalk recovered a judgment against Nance for $275", and a writ of garnishment was issued thereon against Warren, and judgment rendered against him for that amount in August, 1874, which Warren has fully paid off and discharged. He prayed that Nance be decreed to make title to him for the land.
    The defendant demurred, and answered, setting up a rescission of the contract.
    There was a verdict and judgment for the plaintiff, vesting the title in Warren, and from this judgment Nance has appealed.
    The assignments of error upon which the appellant relies are:
    1. That the court erred in refusing to sustain the exceptions to the plaintiff’s petition and amended petition.
    2. That the court erred in the giving and refusal of charges.
    3. In refusing a new trial.

      J. D. Thomas, for appellant.

      P. D. Page, for appellee.
   Quinan, J.

The exception to the petition is based upon the idea that there is no allegation of the payment of the balance of the purchase money; but this is evidently a mistake. The amended petition avers the payment of the whole of the Gottschalk judgment.

The third assignment of errors, that the court erred in its second instruction to the jury, that the payment of the amount due on the land to a judgment creditor of Nance would be equivalent to a payment to Nance, is fiot, we think, well taken. Warren was served with a writ of garnishment; he was indebted to Nance upon the land, and therefore subject to the writ-, and could not have avoided payment of the money. It was in no sense a voluntary payment of his debt to a third person; nor was he obliged to abandon his purchase, because the service of the garnishment upon him prevented bis payment of the money to Nance himself, to whom it was past due. The payment of the judgment against him xvas a substantial compliance xvitk his agreement. The failure of Warren to answer the garnishment xvorked injury only to himself, in that he suffered judgment to go against him for a larger amount than he owed Nance, and of this Nance cannot complain. Warren xvas guilty of no such inexcusable negligence as would deprive him of the right to have a specific performance of the agreement. Scarborough v. Arrant, 25 Tex., 129.

It is objected that the court erred in refusing to give the sixth instruction asked by the defendant. This objection assumes that the court charged the jury that a rescission of the contract between Nance and Warren could not be proven by parol, but this is not supported by the record. In fact the third and fourth charges of the court assert the contrary, and embraced fully the law of the case as applicable to the proof. The court charged the jury, “that if Warren and Nance agreed to rescind the contract for the sale of the land, and Nance was to destroy and did destroy the note of War- ° ren, and Warren was to destroy the bond, and that Nance paid back to Warren the $75 paid, and Warren surrendered the possession of the land as owner and took a lease from Nance and held possession of the land as tenant of .Nance, you will find for the defendant. If Warren has been in possession of the land since the time of the execution of the bond, claiming and holding it as his own land, you cannot find that the contract of sale has been rescinded.” And this, we think, was no more than to instruct the jury, as they should have been instructed, that the rescission of the contract must be proven unequivocally, by the facts and circumstances, when it is sought to be established by parol. Story, Eq., 770, n.

[Opinion delivered June 21, 1880.]

We are of opinion there was no error in the refusal to give the other instructions asked by defendant. They embodied the proposition that a payment of the Gottschalk judgment was not a compliance with Warren’s agreement, which, as we have seen, is not a correct view of the law.

There was no error in the refusal to grant a new trial. The proof was conflicting, but there certainly was sufficient testimony to warrant the finding of the jury, and it was for them to judge of the weight of the testimony and the credibility of the witnesses. In such case their verdict, though it may fail to satisfy us, cannot be disturbed.

On the whole, there is no error for which the judgment should be reversed, and it will be affirmed.

Affibmed. ■


text:
    Robert Walton, Adm’r, v. Romanus Talbot et al.
    (Case No. 3536.)
    1. Pleading — Limitation.—Where the petition does not show on its face that the right of recovery is barred, the defense of limitation cannot be set up by demurrer against it.
    2. Pbactioe — Pleading.— However inconsistent or repugnant the allegations may be in the pleadings of heirs who have been made parties in a suit by the administrator of their ancestor, they will not have the effect of annulling what the administrator has sufficiently alleged. Smith v. McGaughey, 13 Tex., 464.
    3. -Stale demand.— General allegations of absence, fraud, concealment, minority and coverture are too indefinite to avoid the defense of stale demand.

      Ebbob from Bobertson. Tried below before the Hon. John B. Bector.
    This suit was instituted by Walton, administrator of Hughes, against the defendants, for the recovery of an undivided interest in one-third of a league of land on Walnut creek, in Navarro county, the headright of Nathaniel Mudd. The petition is in the ordinary form of an action of trespass to try title.
    The defendants excepted to the petition of plaintiff because the heirs were not made parties and joined in the suit, and pleaded “ not guilty.”
    The heirs of Hughes were then made parties plaintiff by leave of the court, and they filed a petition alleging that they- were the owners of the land “subject to the purposes of administration;” that on 2d January, 1837, their ancestor, James Hughes, contracted with Nathaniel Mudd for the consideration of $1,000, and Mudd obligated himself to make Hughes a title to one-half his headright when he should obtain title to it; that Hughes was to locate it and did so (though this did not appear in the agreement), and paid all the charges except the bare fee for the issuance-of the patent; that Mudd took out the patent in 1845. Hughes died in 1846, and then Mudd, intending to defraud his heirs, claimed the whole of the land; and, in 1848, sold it to Swenson, who knew the facts of Hughes’ right to one-half if it, but who has sold more than half of the land; they aver that the administration of the estate has been prolonged by litigation; that they were unacquainted with the condition of the estate; they pray for a partition of the land, and that Swenson may be compelled to make good the excess in value beyond his half of the land which he has sold.
    To this petition of the heirs the defendants demurred, alleging that the plaintiffs’ claim was a stale demand and barred by limitation.
    They also pleaded the statutes of limitation of three, five and ten years. That the contract set up by the heirs was an executory contract, and that the right to recover upon it or have performance thereof was barred.

      To these pleas the heirs replied, that Hughes had fully complied with his agreement and performed his contract for the location of the land; that Mudd held the title in trust for him for his half; that they had no notice of any disavowal by Mudd of the trust; that they knew-nothing about the sale of the land till just before the institution of the suit; that they have been scattered far from Navarro county; that Swenson and Mudd combined to defraud their ancestor and them by the sale, and kept it unknown to them; and that the said heirs have been under the disability of minority and coverture since and before the sale to said Swenson.
    The cause was submitted to the court, who sustained the demurrer of the defendants, and the plaintiffs declining further to amend, judgment was rendered “ that the defendants go hence without day, and that the costs be paid by E. W. Walton, administrator of Hughes, in due course of administration.” From this judgment Walton, administrator of Hughes, has appealed. ,
    It is assigned for error that the court erred in sustaining exceptions to plaintiffs’ petition and amended petition.

      William H. Hamman and Champe Garter, for plaintiffs ia error.

      H D. Prendergast, for defendants in error.
   Quinan, J.

We are of opinion that this assignment is well taken.

Whatever may be said of the imperfection of the pleadings of the heirs of Hughes, who were called in and made parties by the defendants, it cannot be doubted that the petition of Walton, administrator of Hughes, set up a good cause of action, entitling him to recover, if the averments were sustained by the proof. It certainly did not show on its face that the right of recovery was barred by limitation, and consequently the defense of limitation could not be set up by demurrer against it.

Nor did the pleadings of the heirs vitiate that of the administrator. However inconsistent or repugnant their alie*gations may be, they could not have the effect of annulling what he had sufficiently alleged. Smith v. McGaughey, 13 Tex., 464.

[Opinion delivered June 21, 1880.]

For this cause the judgment must be reversed. It is unnecessary to comment upon the sufficiency of the allegations of the heirs in their petition, or to determine whether the claim, as stated by them, is subject to demurrer as a stale demand. The agreement or contract between Hughes and Mudd is not before us, and we can express no opinion whether it was executory or substantially executed. The facts in connection with it can be developed on the trial. Bell v. Warren, 39 Tex., 106. We need only say that if it should become necessary to avoid the defense of stale demand by proof, general allegations of absence, fraud, concealment, minority and coverture, are altogether too loose and indefinite. Story’s Equity Pleadings, sec. 814.

The judgment will be reversed and the cause remanded.

Bevbrsed and remanded.


author: A. S. Walker, J.

text:
    Mathew Graham v. J. E. Hawkins et als.
    (Case No. 2793.)
    1. Notice — Becitals in deed.— A purchaser holding under a conveyance which recites that a bond to convey the land to another had been made, that the party in whose favor it was made had failed to comply with its conditions, was dead, and the bond lost, is not, in the absence of actual notice, bound by such recitals to take notice of a prior unrecorded deed to the land.
    8. Same.—In the absence of evidence charging a purchaser with notice beyond the recitals of his deed, he has only notice of the facts which its contents import.
    8. Same.— A subsequent purchaser is bound by facts appearing as recognized by the recitals in the deed by his vendors, but he is not required to dispute their correctness; and if charged with notice of what does appear, he is authorized to assume the proposition contradictory to'such recitals to be untrue. Notice by recitals in a deed" is not notice of a state of facts contradictory to such recitals.

      4. Presumption.—Probate courts are courts of general jurisdiction over the estates of deceased persons, and all presumptions are in favor of the regularity of their proceedings. In the absence of proof, after a long lapse of time, the law presumes the proceedings were all regular, and supplies the absence of any necessary fact to sustain the proceedings by the presumption that it existed at the time the proceedings were had, and it is not error to admit in evidence an administrator’s deed over thirty years old, though no report of the sale is shown to have been made by the administrator.
    5. Charge of the court.— It is error to charge the jury to take into consideration the recitals in a deed, in connection with other proof, when it does not appear that other evidence on that point was adduced on the trial.
    Appeal from Ellis. Tried below before the Hon. H. Barksdale.
    This case was before the supreme court on a former appeal. Graham v. Hawkins, 38 Tex., 628. The report in that case gives a history of the facts upon which the controversy exists.
    On a second trial, and in which the defendant Graham alone is interested in a tract purchased, the plaintiffs again recovered judgment.
    On the trial the grant by-probate court of Bowie county of letters of administration on estate of Y. M. Sublett to Martin Glover was shown; bond and oath of office; inventory and sale of personal property; application for “ permission to sell so much of the surveyed lands belonging to said estate, lying in Robertson county, west of the Trinity river, in Texas, as will pay said liabilities, say $1,500 more or less,” and order of court for such sale, made July, 1844.
    Ho return of the sale could be found in the office, though the amount of the sale of two leagues of land is carried into the final settlement. Depositions of the administrator were taken to the fact that such return of account sale had been made by him. A deed from Glover as administrator to the plaintiffs was read over objection.
    The.defendant showed patent to P. A. Sublett, assignee, his deed to Geo. A. Sublett, his deed to M. Smith, and Smith to defendant. A copy of the deed from P. A. to G. A. Sublett is given, as also the dates of the several deeds, in the report in 38 Texas. Defendant also proved payment in cash of the purchase money by him to Smith, and payment by Smith to G. A. Sublett.
    The court instructed the jury: “That probate courts are courts of general jurisdiction over the estates of deceased persons, and that all presumptions are in favor of the regularity of their proceedings. But such presumptions can be indulged only in the absence of proof and not against proof. You are further instructed that mere irregularities in the proceedings of the probate court do not affect the title of a iona fide purchaser at the administrator’s sale, and the order of court cannot be impeached collaterally for such irregu-' Iarities. When the orders and proceedings of probate courts are not only irregular but are null and void, their nullity may be shown in any collateral proceeding where they are relied on in support of a claim of right.”
    “The question to be determined in this cause is whether the proceedings of the probate court, and the sale and the deed thereunder by the administrator of Y. M. Sublett’s estate, are merely irregular, or whether they are null and void.”
    “ It is insisted by defendant’s counsel that the order of sale is too vague and indefinite, in that it does not describe or point out any particular land to be sold, and that the sale of land by the administrator was not reported under oath to the probate court, nor approved by said court; and for these reasons it is argued that the proceedings of the probate court and sale thereunder by said administrator are null and void.”
    ' “In the absence of proof, after a long lapse of time the law presumes that the proceedings were all regular, and supplies the absence of any necessary fact to sustain the proceedings by the presumption that it existed at the time such proceedings were had. This presumption, as before stated, cannot be indulged against the record itself nor against proof.”
    “ You are instructed that, at the time of the sale of the land by said administrator, the law required him to report the sale in a given time under oath to the probate court. How, if the proof satisfies you that the order of sale did not direct the administrator to sell any particular tract or parcel of land, and that a sale was made by him under such order and never reported under oath to the probate court, nor approved by the court, then the proceedings are not only irregular, but null and void. The approval by the probate court of the final account of the administrator is not such an approval of the sale as will cure the omission to report the sale under oath under such circumstances.”
    After defining notice, and the facts necessary to support the plea of bona fide purchaser, the court further charged;
    “You are further instructed that a party is bound to take notice of the recitals in his own .deeds, and the recitals of others through whom he derives title, and if such recitals give notice to the party purchasing that there is an adverse claim to the land, he is bound to inquire into the same, and he is affected with notice thereof, and cannot under such circumstances be an innocent purchaser.” . . .
    “ The question of notice is a question of fact, and from the recitals in defendant’s chain of title, together with any other proof, you will determine whether he had notice, or not, sufficient to require him to make inquiry,” etc. . . „
    There was no registration so as to charge defendant with constructive notice. A further statement of the case is unnecessary.
    The appellant, Graham, assigns errors as follows :
    1. The court erred in permitting the deed from Martin Glover, administrator, etc., to plaintiffs, to be read in evidence,

      2. The court erred in its charge on subject of notice (that above set out).
    3. Error in refusing motion for new trial. (The motion urged: (1) the verdict was unsupported by the testimony; (2) not in accordance with the charge and with law; and (3) it was against law and evidence.)

      J. W. Ferris, for appellant.

      A. A. Kemble, for appellee.
   A. S. Walker, J.

1. We are not prepared to say that there was error in the action of the court touching the admission of the administration deed. The lapse of time from its date certainly adds weight to the presumption against irregularity in the proceedings. The order of sale was made in July, 1844; the trial below was had October, 1874; an interval of over thirty years existing between the act and the adjudication upon its effect. Besides, we do not see that the order was necessarily void for uncertainty. The two leagues may have been all the surveyed lands of the estate included in the order west of the Trinity and in Robertson county/ and, if so, the order would be specific as to its objects. Taking the admission of the deed with the charge of the court upon the probate proceedings, the evidence, and the presumptions to be indulged in as explaining the conditions upon which the deed xvould pass title, xve do not believe there was error, and the first assignment is not well taken.

2. The general charge on subject of notice is without fault. Nor is the rule as to recitals improperly given, as to what recitals were notice and their effect.

A careful examination of the statement of facts fails to shoxv us any other testimony than the recitals in the deed from P. A. to G. A. Sublett affecting Graham, or tending to show any such fact within his- knowledge charging him xvith notice. The court was, therefore, not xvarranted in telling the jury to act upon the recitals in his deed (and in the deeds in the line of his title), “ together xvith any other proof.” There was no other proof to this point; at least we find none in the statement of facts.

The jury probably considered this instruction as authorizing them to weigh the other testimony (irrelevant to this issue), as adding force to the recitals as evidence of notice.

. If the recitals were sufficient to charge the defendant with notice, the jury should have been so instructed, as xvas done on the former trial of the case. If not sufficient, as there was no other testimony to the point, it would have been proper to have so informed the jury in construing the effect of the de !d.

On the first trial the court instructed the jury that the recitals charged defendant with notice of plaintiff’s title, and that defendant could not be a bona fide purchaser.

But on appeal (38 Tex., 635), Justice Walker held otherwise, as follows: “As to the recitals in Graham’s deed they only refer to a conditional sale, and it does not appear that the conditions had been performed. The recitals are very vague and uncertain, and we do not think them sufficient to put Graham upon inquiry.” Wethered v. Boon, 17 Tex., 150.

The recitals are as follows: “ Whereas, Philip A. Sublett sold to Valentine M. Sublett two certificates for one league and labor of land each, to wit, the headright of Lyttleton White and L. Dixon, and gave to the said Sublett my bond for an amount not recollected, conditioned that patent would issue upon said certificates; and, whereas, the said V. M.Sublett died before the patents issued to said certificates; and, whereas, said bond is now lost; and, whereas, also, Geo. A. Sublett, brother of said V. M. Sublett, having caused said land to be surveyed and patented since the death of said Valentine; and the said Geo. A. Sublett appearing to be entitled to the benefits of said bond from me to the said Valentine, I do convey unto the said Geo. A. Sublett,” etc.

As there is no evidence of the purchaser being chargeable beyond the recitals in the deed, he had only “ notice of the facts which its contents import.” Cooke v. Bremond, 27 Tex., 460; McLouth v. Hurt, 51 Tex., 120. But it will be sufficient ... if the recitals lead to the fact of which he is to be charged.” Wade on Notice, § 313. See, also, 50 Tex., 323; 49 Tex., 62; 49 Tex., 463; 48 Tex., 411; 46 Tex., 123.

If the recitals are true, obscure as they are, they claim an equitable interest to have existed in the grantee, and the deed conveys to him the legal title, and shows want of equity and loss of paper evidence of title in the deceased, V. M. Sublett, at his death.

•The subsequent purchaser, while bound by facts appearing - as recognized, from the recitals in the deeds, by his vendors, certainly is not required to dispute their correctness. If charged with notice of what does appear as facts, he would be necessarily authorized to assume the proposition contradictory to such recitals to be untrue; and if so authorized, notice in a deed by recitals is not notice of a contradictory allegation to such recitals. Do the recitals lead to the deed? The conveyance is called a bond, and it is stated to have been lost. Why search for it ? The onus of the consideration of the bond had been borne by G. A. Sublett. If so, he is the equitable owner, and becomes the legal owner by the deed executed to him by the patentee.

[Opinion delivered June 24, 1880.]

Trom the charge by the court below it is evident the’ court regarded this matter of notice as one of fact, and that, in his opinion, the recitals, “ with other proof,” should be passed upon by the jury. It would not appear from this that the judge below considered the defendant, as matter of law, chargeable with notice; nor is there evidence that, as a fact, the court held the recitals sufficient evidence, or that such question was ever passed upon by the jury. The trial below does not, therefore, appear to have been upon the facts in evidence, and with the issues really made submitted to the jury.

We do not deem it best to give our opinion as authoritative upon the recitals. It is possible that, on a new trial, other testimony may be introduced really additional to the documentary evidence, or explaining the equities of Geo. A. Sublett in the land, inducing the conveyance to him.

In our opinion there was error in the proceedings below, for which the judgment should be reversed.

RbVEKSED AND EEHANDED..


author: Walkeb, P. J.

text:
    Page McDannell v. Martha E. Horrell.
    (Case No. 3842.)
    1. Practice—Objection to testimony.—The ruling of the court on an objection to the introduction of testimony, where the ground of objection is not stated, will not be revised by the appellate court unless it relates to the relevancy or competency of the evidence offered. 21 Tex., 783.
    2. Pleading—Special matter of defense. —A defendant having pleaded special matter of defense, which is recited, will he confined to evidence which goes to support that defense, and evidence of other special defenses will be excluded. 21 Tex., 154.
    8. Evidence — Objections to testimony.—Courts do not look with favor on objections to testimony during the trial of a case taken upon the ground that the pleadings are insufficient, where no exceptions have been filed by the party objecting; and it is only when pleadings are wholly defective, showing no cause of action, or no defense, that objections to testimony because of insufficiency of the pleadings ought to be entertained. 27 Tex., 271.
    4. Deed—Married woman cannot avoid for husband’s fraud in obtaining signature. — The fraud of the husband in obtaining his wife’s signature to a deed, or the failure of the officer taking her acknowledgment to explain it to her, will not avoid the deed of a married woman, which appears to be properly executed and acknowledged, in the absence of testimony connecting the purchaser with the wrongs complained of, or privity with the parties who may have committed them. 46 Tex., 207; 48 Tex., 141; 21 Tex., 640; 18 Tex., 644; 6 Tex., 208.
    5. Acknowledgment—Validating officer’s certificate.—The certificate of an officer taking a married woman’s acknowledgment, which stated that she had been examined “ separate ” instead of “privily,” was cured by the act of July 28, 1876, validating defective certificates of acknowledgment.
    Error from Lampasas. Tried below before the Hon. W. A. Blackburn.
    This was an action of trespass to try title brought in district court of Lampasas county on September 15, 1877, by plaintiff in error against the defendant in error, to recover lot 1 in block 3 of East Lampasas. The petition was in the ordinary form used in such suits. On September 27, 1877, defendant answered by a general denial, and specially that on and since February 19, 1876, she and her husband, M. Horrell, now deceased, were residing on said lot, occupying it as a homestead, and continued to reside thereon until the death of her said husband in February, 1877, and that she and her children still resided thereon; that plaintiff claimed the land by virtue of a deed dated February 19, 1876, signed by M. Horrell, husband of defendant, who also wrote defendant’s name thereto and required her to make her mark thereto; that said deed was never read or explained to her;that she did not know the said instrument was a deed; that the consideration expressed therein was inadequate, and she prays that said deed be canceled. The answer was not sworn to. Plaintiff filed exceptions to the answer, which do not appear to have been passed on by the court. The case was tried by the court without a jury, and judgment rendered for defendant on September 29, 1877. Motion for new trial filed by plaintiff on September 29, 1877, which was overruled on same day, and plaintiff gave notice of appeal to the supreme court. The petition for writ of error, bond and assignment of errors were filed December 21,1878. Citation in error was issued on January 6, 1879, and served on January 10, 1879.
    The first assignment of error is that the court erred in overruling plaintiff’s objections to the testimony of W. L. Bradley, Mrs. Bowen, Mrs. Dixon and Martha E. Horrell(the defendant), the said testimony being offered to contradict the certificate of acknowledgment to the deed from the defendant and her husband to plaintiff, and which had been introduced in evidence by plaintiff.
    The second assignment of error is that - the court erred in rendering judgment for defendant and not rendering judgment for plaintiff, in this': plaintiff having introduced in evidence the deed from the defendant and her husband to the plaintiff, the evidence offered by defendant was insufficient to destroy the legal effect of the deed, it not being shown that the plaintiff, the grantee in the deed, knew that the requirements of the law in regard to the separate examination of -married women had not been complied with.

      J. C. Mathews, A. G. Walker and J. W. Robertson, for plaintiff in error.

      Walter Acker, for defendant in error.
   Walkeb, P. J.

The plaintiff relied upon a deed of conveyance from M. Horrell and his wife, the defendant, Martha E. Horrell, to him of the land in dispute, dated the 19th day of February, 1876, which, together with the certificate of acknowledgment, was by him read in evidence to the jury. The certificate of acknowledgment reads as follows, to wit:

The State op Texas, Lampasas County.

“ Before me, A. P. Anderson, district clerk of said county, personally appeared M. Horrell and his wife, M. E. Horrell, both to me well known, and acknowledged that they signed the foregoing deed (the said M. E. by making her cross-mark) for all the uses, purposes and considerations therein contained; and the said M. E. Horrell being examined by me separate from her husband, said deed being fully explained to her, she acknowledged that she signed the same without any fear or compulsion on the part of her husband, that the same was her act and deed, and that she wished not to retract it.”

It was admitted by counsel that defendant is, and was at the institution of the suit, in possession of the land.

It was in evidence that the defendant and her husband occupied the land as a homestead from January 1, 1876, until the death of her husband in January, 1877, and that she has continued ever since to occupy it as such.

The defendant then offered to prove by Mrs. Bowen, Mrs. Dixon and her own testimony that her husband was in the same room with defendant when she signed the deed, and that the deed was never read to her, to which plaintiff objected. The objection was overruled by the court, and the testimony was admitted, which was substantially the same as that given by W. L. Bradley, who testified that he was at the house of the defendant and her husband on the occasion in question; that whilst he was there, A. P. Anderson, the district clerk of Lampasas county, was present, and had with him a paper of some kind; that Merit Horrell, the defendant’s husband, told his wife he wanted her to sign the paper, and she went to the table where the paper was, and witness did not know whether she signed it or not. Merit Horrell was in the room at the time. Witness heard all the conversation between the parties, and there was no paper read or explained. Witness stated that he was there during all the time that Anderson remained, and that Merit Horrell was in the room all the time; and that said Anderson, Horrell and wife, Mrs. Dixon, Mrs. Bowen and himself were the only persons present.

The defendant answered by a plea of “hot guilty;” and a special answer, alleging the facts heretofore stated as being in evidence in respect to the land being her homestead, and continued residence upon it as such; that the "deed was signed by her husband, now deceased, who required her to make her mark thereto; and that said deed was never read nor explained to her, and that she did not know that said instrument was a deed. Defendant further answered that the consideration expressed in said deed is wholly inadequate, and prays for cancellation of the deed.

The objection made to the introduction of the evidence stated no reason therefor, and no ground will be entertained in revising the ruling of the court below, in such case, unless it relates to the relevancy or competency of the testimony offered. Stiles v. Giddens, 21 Tex., 783. The question, therefore, under the first assignment is whether the testimony under the pleadings was relevant. The defendant having pleaded the special matter of defense which has been recited, she will be confined to evidence which goes to support that defense, and evidence of other special defenses will be excluded. Mills v. Alexander, 21 Tex., 154. If the defense had charged fraud or imposition practiced upon her in obtaining the deed, in which the plaintiff participated, or to. which he was privy, the testimony which was offered would have been admissible, as tending to establish a material fact in the claim necessary to be proved, and the objection would have been ill founded; but there was no such plea. The special plea set forth no defense whatever; it was not merely a defective plea, it was wholly insufficient; it showed no defense. Courts do not look with favor on objections to testimony during the trial of a case, taken upon the ground that the pleadings are insufficient, when the party objecting had filed no exception to a pleading. It is only when pleadings are wholly defective, showing no cause of action, or no defense, that objections to testimony, because of the insufficiency of the pleadings, ought to be entertained. Pyron v. Butler, 27 Tex., 271. Therefore, here, the objection might well have been sustained; the testimony, although it went directly to support the allegations of the answer, nevertheless, when admitted, did not form a basis for any defense. The foundation of the error lies in the answer itself; the plaintiff ought to have excepted to it before the trial; the court, in admitting the evidence, but followed the plain rule which allows of evidence to support the allegations contained in the pleadings. The merits of the entire question are embraced in the second assignment of errors. The action of the court throughout indicated the opinion that the plea was a valid one, and if it was so, the evidence fully supported it, and warranted the judgment. But we are of the opinion that there is a fundamental error in the judgment, which has been sufficiently indicated in what has been already remarked. The sufficiency of the acknowledgment as to its form is not called in question by the defendant, in any manner, so far the record shows us, and the only defense which is relied upon is that which has been established by the evidence, and those facts do not in any wise connect the plaintiff with any imputed wrong in the acts complained of, nor of any knowledge on his part of, or privity with, the parties who may have committed them. The rule of law which governs this case is now well settled by repdhted decisions of our supreme court. A married woman cannot avoid a deed to which her separate acknowledgment appears to have been taken by a competent officer, in the terms of the law,' on account of the deception and fraud practiced on her by her husband in procuring her signature, or the failure of the officer to acquaint her with the contents of the instrument, in the absence of evidence tending to charge those claiming under the deed with notice. Pool v. Chase, 46 Tex., 207. A married woman, in the absence of fraud, or of knowledge thereof on the part of the beneficiaries, in a trust deed, given on a bona fide consideration, cannot impeach the certificate of the officer taking her privy acknowledgment. Pouns v. Williams, 48 Tex., 141. The same principle is decided in Wiley v. Prince, 21 Tex., 640; Shelby v. Burtis, 18 Tex., 644; Hartley v. Frosh, 6 Tex., 208. The remark may be quoted here that was made by the court in Pouns v. Williams, supra, to the effect that this question is no longer an open one in the supreme court.

The deed from M. Horrell and his wife was acknowledged before a competent officer; the certificate of the officer to the examination of the defendant shows a substantial compliance with the terms of the statute. Belcher v. Weaver, 46 Tex., 294. The certificate does not show that she was examined “privily ” and apart from her husband, as is contemplated by the statute of 1848. An act was passed by the legislature, approved July 28, 1876, p. 61, validating defective certificates of acknowledgment of married women, where the same were wanting in any word or words necessary to be contained in such certificate by the requirement of the existing statute and those previously enacted, “ provided that said certificate shall show on its face that the married woman was examined by the officer taking the acknowledgment separate and apart from her husband, and, having the same explained to her, she declared that she had willingly signed the same, and that she wished not to retract it, or words to that effect.” This law cured whatever defect may have existed for the want of the statement in it that the defendant was examined “ privily ” and apart from her husband.

The certificate does not, in every respect, follow the precise language of the statutes;' but in all respects wherein it fails to do so (except that relating to the privity of the examination), and wherever the words in the statutes are omitted, those which are substituted for them possess the same meaning, or represent the same fact. Belcher v. Weaver, 46 Tex., 294. The deed, therefore, being executed and acknowledged by both husband and wife in substantial compliance with the law, it passed the title to the grantee named in the deed; and the plaintiff, upon the evidence before the court, was entitled to recover, the defendant having offered no evidence to countervail the legal effect of the same.

[Opinion delivered June 24, 1880.]

We are of the opinion, therefore, that there is error in the judgment rendered in favor of the defendant, and that it should be reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    James Maynard v. L. J. and C. C. Lockett.
    (Case No. 3453.)
    1. Rents—Tenant holding over.—A tenant holding over leased premises after the expiration of his written lease, which fixed the amount of rent, is only bound to pay reasonable value for the premises for the time he holds over, without regard to the rent fixed in the lease contract; and on the trial of a suit for rents it is error to exclude evidence Offered by the defendant to show a rescission or setting aside of the written lease.
    2. Petition — Variance.— In a suit for rent, where the complaint claimed rent due without stating the character of the contract under which it was claimed, a petition setting up a written lease at an agreed rent, and a holding over after the expiration of the written lease, is not such á departure from the cause of action indicated in. the affidavit as will vitiate the proceedings.
    3. Rents — Filing petition.—Filing the petition at the return term of the distress warrant, before motion to dismiss or action taken by the court, is, in a suit for rents, a sufficient appearance to give the court jurisdiction.

      Appeal from Washington. Tried below before the Hon. • E. B. Turner.
    This suit was commenced on the 11th day of November, A. D. 1874, by the issuance of citation and distress warrant upon affidavit made before S. A. Hackworth, justice of the peace, by C. 0. Lockett, stating:
    1st. That James Maynard is justly indebted to L. J. and C. C. Lockett in the sum of six hundred and fifty coin dollars, “ as more fully appears by an account hereto attached, marked exhibit ‘ A,’ for rent of certain premises situated in said county, and now occupied by said Maynard.”
    2d. The said rent is now due and unpaid.
    3d. The distress warrant now applied for (November 11, 1874) is not sued out for the purpose of vexing and harassing the defendant.
    4th. Exhibit “A:”
    “ James Maynard, Dr., to L. J. and G. G. Lockett, coin:

    “ To rent of livery stable lot and improvements situate in city of Brenham from October 1, 1873, to November 1, 1874, at $50 coin per month, $650.”
    The distress warrant was returnable to the district court of Washington county on the first Monday in February, A. D. 1875.
    The citation issued November 11, 1874, from S. A. Hack-worth, requiring the defendant Maynard to appear before the district court on the first Monday in February, A. D. 1875, to answer a petition to be filed by L. J. and C. 0. Lockett, was executed in due time.
    By virtue of this warrant, the Sheriff levied upon $855 worth of horses, buggies, hacks, of the defendant upon the premises, and retained possession thereof for several days and until replevied.
    Plaintiffs filed a petition alleging “ that defendant had held the leased premises by a written contract for one year from October 1, 1872, at a monthly rent of $50. That after said year defendant still held over on his said lease, and continued to use and occupy his livery stable (the leased premises) with the tacit understanding that he should continue to occupy the same upon the same terms as stipulated in said written contract.” . . . “ That by reason of such holding over of said premises under said written. contract by said defendant, during said period of time, from October 1,1873, until November 1,1874, said defendant undertook and promised to pay to plaintiffs monthly the sum of $50 coin;” failure to pay, distress warrant, etc.
    It seems that the term of court to which the writ was returnable began February 1, 1875. The petition does not appear to have been filed until February 9, 1875.
    February 12, 1875, defendant filed a plea to the jurisdiction of the court, and a separate motion to dismiss “ because the petition was not filed as the law requires.”
    March 27, 1875, the motion to dismiss was overruled, and defendant excepted.
    June term, 1875 (marked on margin January 9), defendant filed a general demurrer and special exceptions; and in bar: (1) general denial; (2) admitting the written contract for one year from October 1, 1872, and “ that the said contract expired by its terms on the 1st day of October, 1873; that thereafter defendant, with consent of the plaintiffs, continued to occupy the said rented premises until the 10th day of November, 1874.” . , . “ He expressly denies that any contract for rent of said premises was ever afterwards entered into by and between this defendant and said plaintiffs.” (3) A suit for the premises against plaintiffs and defendant; (4) and damages in reconvention for wrongfully suing out distress'warrant (alleging that plaintiffs’ demand is unjust, extortionate and oppressive, in this, that without cause, and in the absence of a contract for rent, etc., etc.), the warrant had been sued out, his stock seized, his feelings injured, etc.
    January 31,1877, defendant, amending his answer of June 9, 1875, denied all plaintiffs’ allegations save as in said answer admitted; alleged that the reasonable rental value of the leased premises for the time he held them was $15 per month; alleging payments, and withdrawing so much of his pleading as seeks to recover damages for wrongful and malicious suing out and levying the distress warrant.

      January 31,1877, plaintiff amended, praying specifically for judgment for his rent and for order of sale, etc.; and further, “that when said defendant held over under said written lease he then and there undertook and promised plaintiffs to pay'them so much rent for said premises as (they) were reasonably worth; and that they were reasonably worth the sum of $50 coin per month in advance.”
    On the trial the plaintiff proved the distress warrant proceedings, levy, replevy, etc.; proved the written contract for lease from October 1, 1872, for one year.
    L. J. Lockett, one of the plaintiffs, testified: Plaintiffs leased the livery stable and premises described , in the written contract, to the defendant, and the contract was by them, executed. That defendant took possession and occupied' them until after November 1, 1875. That suit for the first year’s rent under the contract was instituted in fall of 1874. That that year’s rent was afterwards paid and suit dismissed, defendant paying costs. -'i
    The account (now) sued on is just, and the rent money unpaid. Defendant, at the institution of this suit, owed on said contract $050 in coin, rent for said premises for thirteen months, beginning October 1, 1874. Tnat defendant occupied said premises prior to the execution of the léase contract. . . . That about October 1, 1874, defendant said something to witness about reducing rents; did not remember what was said between them, but it was not done. No other contract was made after the written contract was executed, The premises were worth $50 per month, the price agreed to be paid, as set out in the written lease. That the written lease secured the value. Defendant was entitled to some credits, allowed at $91.
    Defendant Maynard testified that he had leased and occupied the livery stable premises before the written contract; had forgotten the terms. That a year after the written lease was executed, and after defendant had occupied the premises about a year under the lease, defendant spoke to the plaintiff, L. J. Lockett, about reducing the rent of the premises. (Here plaintiff, with alleged view of showing a paro! surrender of the written lease, and after its termination he was to pay only so much as the premises were reasonably worth, asked the witness the following questions:) “ State whether or not, on the expiration of the written lease, you staled to the plaintiff, L. J. Lockett, that you would not continue to occupy the rented premises on the same terms, and what was the said Lockett’s reply?” To which the plaintiffs objected, (1) because the defendant "had no allegation in his pleadings under which the question and answer were admissible; (2) that defendant had set up no new contract; and (3) he could not, by saying that he would not pay the same rent, relieve himself of his legal liability, but must either make a new contract or leave the premises. '
    - The court sustained the objections and excluded the questions and answers.
    The witness continued: The premises, during the timé from October, 1874, till ¡November, 1875, were not worth the price set out in the written lease; in fact not more than $15 per month. The property levied upon was in the custody of the sheriff seven days before the replevy bond was approved; meanwhile, the sheriff left it in hands of defendant, wnh his promise not to use it. During that time the property would have been worth to the defendant $15 per ■ day clear profit, but defendant could not use it on account of instructions from the sheriff.
    Leonard Gee, for defendant, testified that the rental value of the property from October 1,1874, to November 1,1875, .was not more than $20 per month, in his opinion.
    The court rendered judgment for the account sued on and' ordering sale of the property seized. Motion for new trial was overruled and defendant appealed, assigning errors:
    1. In overruling defendant’s motion to dismiss, for reason" given.
    2. Overruling motion to quash, for reasons in motion, which were departure in the petition, etc.
    3. Overruling demurrer and exceptions.
    4. Excluding the testimony of James Maynard, as shown •in bill of exceptions.

      5. The judgment is excessive and not sustained by the testimony.
    6. The judgment is not suchas is authorized by statute in such cases.

      P. Id (& J. T Swearingen, for appellant.

      Breedlove de Ewing, for appejlees.
   A. S. Walker, J.

1. In analogy to the effect of an appearance entered by a defendant after default day, and before judgment by default taken, it is considered that the filing f the petition at the return term of the distress warrant md before motion to dismiss or action taken by the cou , will be a sufficient appearance to give the court jurisdic on. There was no error in overruling the motion to dismiss.

2, The petition, as amended; was sufficient in itself; nor Was it a material departure from the cause of action indicated in the affidavit for the distress warrant. The written contract from October 1, 1872, for one year, was set up as ■giving its terms, with the allegation that defendant held over for another year under it and was liable for rent at same terms. In amendment it was alleged that the reasonable rental value of the premises was $50 per month, as stated in the affidavit. The motion to quash was therefore properly overruled.

3. The petition alleged a lease for one year by written contract; a holding over by tacit consent; liability from such holding over for same rent — alleged to be the reasonable value, etc.

Defendant denies the tacit consent; alleged, however, a holding over by consent, but without agreement as to amount of rent to be paid; reasonable value alleged tobe but $15 per month.

Thus it was in issue, and material to the rights of the parties, whether the holding over was or not under the former contract as to the price; the new contract alleged by defendant being a rescission or setting aside of the written lease; a holding over without a stipulated rent. This was not a tenancy from year to year. The former term expired by the written contract October 1, 1873. It required the consent of botli parties to the continued possession to attach the terms of the expired contract to the next year. Plaintiffs alleged such consent; the defendant denied the consent to the continued rate. Secor v. Pestana, 37 Ill., 522; Right v. Dorby, 1 Term, 162; Logan v. Heron, 8 Serg. & R., 459, cited in Taylor’s L. & T., sec. 467.

[Opinion delivered June 24, 1880.]

Lockett had testified that about the expiration of the written lease, Maynard had approached him and asked a reduction of the rent; that it was refused, etc. Maynard, when on the stand, was asked touching the same conversation, “Whether or not, on the expiration of the written lease, you stated to the plaintiff, L. J. Lockett, that you would not continue to occupy the rented premises on the same terms? And what was the. said Lockett’s reply?” To this it was objected, (1) because defendant had no allegation in his pleadings authorizing it; (2) defendanthad set up no new contract; and (3) in effect that it was immaterial. The court sustained the exceptions.

It is manifest that these objections were not well taken. The testimony was competent material, and relevant to the issues. There was error in its rejection.

4. The judgment was, under the testimony, not excessive in amount. There is gross carelessness in the copy of the statement of facts in the record as to the dates to which the witnesses testified as to the value of the rent. The testimony appears directed to the year from October, 1874, to October, 1875, instead of from October 1, 1873, to October 1, 1874.

It is not necessary to notice other assignments.

Por the error in excluding the testimony of the witness Maynard, the judgment below should be reversed.

Reversed and remanded.


text:
    Merchants’ Insurance Co. v. Whitfield Scott.
    (Case No. 3538.)
    '1. Insurance — Pleadings.— In a suit on a fire insurance policy by the administrator of the party taking out the insurance, the additional allegation, where the petition sets out a good cause of action, that the plaintiff had, after the loss, transferred the policy to another, and submitting to the court “that if it shall be decided your petitioner did not have authority, as administrator of said estate, to make such sale and transfer of said policy, that judgment shall be rendered for plaintiff as administrator; but that, if judgment can. be rendered for Carothers, that it may be rendered for , him,” did not render invalid the otherwise sufficient allegation of the plaintiff’s cause of action.
    2. Assigning policy of insurance.— An assignment of a fire insurance policy after a loss has occurred will not vitiate the policy. Wood on Ins., 559. 575; Carter v. Humboldt Ins. Co., 13 Iowa, 287.
    3. Sale of insured property. — The sale of the property insured will not invalidate the policy thereon, if the insured at the time of the loss still had an insurable interest therein as a lien for unpaid purchase money, or otherwise holds such relation to the property that its destruction by the peril insured against involves pecuniary loss : to him. West v. The Citizens’ Ins. Co., 27 Ohio St., 1; Jackson v. Palmer, 52 Tex., 427; Jackson v. Æ na Ins. Co., 16 B. Mon. (Ky.), 242; Wood on Ins., 481; Oliver v. Green, 3 Mass., 133; May on Ins., 76.
    Error from McLennan. Tried below before the Hon. X. B. Sanders.
    The defendant in error brought suit, as administrator of the estate of Salina H. Gill, deceased, to the December term, McLennan county, 1875, by petition filed November, 26, 1875, based on a policy of fire insurance written by plaintiff in error. After averring the terms of the contract, defendant alleges the total destruction of the property covered by the policy, by fire, on or about May 18, 1875. That subsequent to said loss, and after failure of plaintiff to pay said loss, he transferred said policy of insurance to A. J. Carothers. The prayer of the petition is for judgment to A. J. Carothers, his vendee, if proper, for the amount of the policy, he having sold the property to Carothers before the loss, but if not, then for himself, as administrator.

      Plaintiff in error answered by general demurrer, general denial, and specially “that the policy was void because the property insured had been sold to Carothers before the loss, and without the consent of the plaintiff in error.”
    Defendant in error demurred generally to plaintiff’s special answer.
    The court below overruled the general demurrer of plaintiff in error to the petition of defendant in error, except as to the ability of Carothers to take judgment, but sustained general demurrer of defendant in error to plaintiff’s special answer, and gave judgment for Scott, defendant in error, in the full amount of the policy. Plaintiff in error excepted and gave notice of appeal.
    The errors assigned are:
    1. The court erred in not sustaining the general de\nurrer of defendant.
    2. In excluding as evidence the deed from plaintiff to A. J. Carothers.
    3. In not allowing defendant to prove by A. J. Carothers that the policy of insurance upon which this suit is based was transferred to him by plaintiff before the loss of the premises.
    4. In rendering judgment for the plaintiff.

      Herring, Anderson de Kelley, for plaintiff in error.

      MeKenney, Bucle & Carothers, for defendant in error.
   Quinan, J.

1. There was no error in the ruling of the court upon the plaintiff’s general demurrer. The petition set out a good cause of action in Scott, administrator. It averred the making of the policy, the loss by fire, the insurable interest of plaintiff in the property, presentation of the proper proofs to the insurance company, and the refusal to pay. The additional averments that the suit was brought for the use of Carothers, and that after the loss the plaintiff had transferred the policy to him, and submitting to the court “ that if it should be decided your petitioner did not have authority as aumiuistrator of said estate to make such sale and transfer of said policy, that judgment shall be rendered for plaintiff as administrator; but that if judgment could be rendered for Carothers, that" it might be rendered for him,” did not render invalid the otherwise sufficient allegation of the plaintiff’s cause of action. But if they had that effect the plaintiff would have been permitted to amend his pleadings. The demurrer of the defendant applied to whatever was defective or contradictory in the allegations of the petition, and the defendant cannot complain that in ruling upon his demurrer the objectionable averments of the petition were stricken out, and his demurrer so far sustained. The petition then remained as the suit of the administrator, for the benefit of the estate, and without any allegation whatever of transfer. The action of the court was certainly correct in holding that the transfer by the administrator without its authority was invalid.

The second and third assignments to the rejection of the testimony to prove the transfer of the policy and the property are alike untenable.

The defendant had filed a special answer, averring that the policy contained a stipulation as follows: “This policy is not assignable unless by consent of this corporation, manifested in writing; and in case of any transfer, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect.” And alleging that plaintiff had sold the property insured to A. J. Carothers; that all the insurable interest of Scott, administrator, had passed out of him, and that therefore the policy became void because the sale was not by defendant’s consent, nor the policy assigned in writing by defendant’s consent to A. J. Carothers.

To this special answer the plaintiff demurred, and his demurrer was sustained, and to this defendant excepted, but whether his exceptions were good in law or not we cannot inquire, as no error is assigned thereon.

The effect then of the judgment of the court on the pleadings of the defendant was that his only answer to the plaintiff’s petition was the general denial.

And it is quite clear that in the absence of an allegation that the policy had been transferred, or that the property had been sold, there was no error in the refusal of the court to permit proof of these facts to be introduced.

But we need not rest our decision of the case upon this ground alone, for in our opinion the testimony, if admitted, could not have altered the result.

1. An assignment after a loss (and there is no allegation of any or attempt to assign before then), even had it been effectual, would not vitiate the policy. Wood on Ins., 559, 575; Carter v. Humboldt Ins. Co., 12 Iowa, 287.

2. The sale of the property, as shown by the proof offered, would not invalidate the policy, because it showed upon its face that the plaintiff still, at the time of the loss, had an insurable interest in the policy to some extent. The stipulation in the policy against sale or transfer refers to the policy only; it does not apply to a transfer of the property. West, Morris & Gorrill v. The Citizens’ Ins. Co., 27 Ohio St., 71. So long as the insured retains some insurable interest in the property he would be entitled to recover in case of loss.

On the sale of the property insured, Scott took the notes of Carothers for the purchase money, which at the time of the loss were not due and were unpaid, and to secure the payment of the purchase money retained in the conveyance to Carothers the vendor’s lien. It is well settled that the legal effect of this transaction was to make the contract executory, and that the superior title to the property remained in Scott, administrator, entitling him to recover possession upon the non-payment of the purchase money, even if the notes were barred. Jackson v. Palmer, 52 Tex., 427.

Where a lien for the price is retained upon the sale of the property the policy is not avoided, though, by its terms, “ any change of title is prohibited.” Jackson v. Ætna Ins. Co., 16 B. Mon. (Ky.), 242. The sale to have that effect must be one which terminates all interest of the vendor in the property. It is quite clear that Scott still retained an insurable interest in the lots, and one which he had no power to divest the estate of, until payment of the money and by order of the court. Wood on Ins., 481,

[Opinion delivered June 24, 1880.]

So it has been held that an equitable interest in property is a valid insurable interest. Oliver v. Green, 3 Mass., 133. A mortgagee may insure the property. Wood on Ins., 483. And the general rule is stated-to be: “It is not necessary that the assured should have either a legal or equitable interest, or indeed any property interest, in the subject-matter insured. It is enough if he holds such a relation to the property that its destruction by the peril insured against involves pecuniary ioss to him or those for whom he acts.” May on Ins., 70; Wood on Ins., 495.

The remaining assignment of error, it follows from what we have said, is not well taken.

There being no error in the judgment it will be affirmed.

Affirmed.