text:
    Michael English v. J. V. Hutchins.
    (No. 3608.)
    Trespass to try title—Action of.— An action involving the determination of the title to land is, in effect, an action of trespass to try title, whatever be its form.
    Evidence — Trust sale — Notice.— Parol evidence admissible to prove length of time notices were up.
    Appeal from. Hays county. Opinion by Walker, J.
    Statement.— This suit was brought by Hutchins against English to recover possession of a tract of land, in form of an action of trespass to try title. The plaintiff’s title was derived under a sale made to one Herndon, trustee, in a deed of trust made to secure the payment to said Hutchins of two promissory notes given by said English, Isaac Mar-chant and Austin A. Carnin, as joint purchasers and co-partners, to said Hutchins for the purchase money of the land in controversy.
    One of the notes was given for $400, due at thirty days, and the other for $1,200, due at two years. The notess deed of conveyance of the land from Hutchins to the makers of the notes, and the deed of trust, were all of even date, viz., August 31,1876. On the 23d of February, 1877, the plaintiff became the purchaser at the sale of the property, made by the trustee named in the deed of trust; to satisfy the alleged unpaid portion of the $400 note the trustee conveyed to him by deed the said property, and he claims through the same. The defendant defends against the plaintiff’s title on two grounds, viz.; that the note of $400 was all paid except the sum of $25, which balance was tendered by defendant to plaintiff on the day and before sale of the property, which tender was refused; and that the sale was made without the required notice of thirty days stipulated to be given in the deed of trust in case a sale of the property should be made by virtue of it. The cause was submitted to the jury; verdict for plaintiff; motion for new trial overruled and case appealed.
   Opinion.— The appellant assigns as error the overruling of defendant’s demurrer and special exceptions to the , plaintiff’s amended petition. The plaintiff’s action was plainly a suit to try the title to the land, and where that is the case it is in effect an action of “trespass to try title,” and it is not essential to constitute it such that the technical allegations of actual trespass and ouster, as urged in the defendant’s special exceptions, shall be made in conformity to the rules applicable to actions of ejectment at common law. The plaintiff in his petition alleged ownership and set out the title under which he claimed; he alleged possession by the defendant, and prayed for restitution of possession and for general relief. These elements were sufficient to constitute it an action of trespass to try title. See Grimes v. Hobson, 46 Tex., 416; Dangerfield v. Paschal, 20 Tex., 537; Sheppard v. Cummings, 44 Tex., 503.

Appellant’s third ground of assigned error is that the court erred in admitting in evidence, over defendant’s objec-' tion, an agreement signed by the San Marcos Milling & Manufacturing Company. The objection urged was on the ground in effect that it did not purport to be the authorized act of the defendant or a company of persons under the name affixed or signed to it. Under the issues in the case there was no error in admitting it. The only remaining question is as to whether there was evidence of the required notice of the sale under the deed of trust. According to dates written on notices there were only twenty-nine days, but Hutchins testified that .they were issued on the day preceding that date, thus making thirty days. Parol evidence was admissible for- that purpose. The charge of the court was correct. From a due consideration of all the questions presented by the assignment of errors there is no such error for which the judgment ought to be reversed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    W. A. H. Miller v. S. W. Wybrants, Jr.
    (No. 287.)
    Evidence, must be objected to when offered.
    Appeal from Bell county. Opinion by Delaney, J.
    Statement.— This suit was brought by appellant against appellee to recover a half interest in a tract of land of one hundred and thirty-three acres in Bell county, and for partition. The petition was filed August 29, 1877. October 5, 1877, defendant answered by a general denial and plea of not guilty. March 26,1878, W. J. McDowell intervened, claiming a half interest in the land. April 14, 1878, the defendant amended, setting out his title and pleading limitation of three and five years and valuable improvements made in good faith. He also set up that those under whom he claimed had many years ago purchased the certificate by virtue of which the land was located, and had held it adversely more than two years before its location; that they had procured the issuance of the certificate and patent. There was no replication by plaintiff. April 6, 1878, there was a trial by the court and a judgment for the defendant; same day motion for a new trial by the plaintiff on the ground that “the judgment is contrary to. the law and the evidence,” which was overruled; and plaintiff appealed, and the following errors assigned: 1st. Overruling motion for new trial. 2d. Judgment contrary to the law and evidence and is without evidence. 3d. Judgment is illegal, unxvarranted and not responsive to the issues.
    Plaintiff then sets out his title. Defendant also exhibits his chain of title, beginning with deed from J. B. Daniel and wife to Anthony B. Flowery for all the right, title and interest in and to the bounty claims of James Hannum, deceased, for three hundred and twenty acres of land, and to a donation claim for six hundred and forty acres to which Hannum’s heirs were entitled, and with a regular chain of title down to himself, all the deeds having been recorded more than five years before the beginning of this suit. Defendant bought the land in 1871 while it was unimproved, took possession in March, 1872, and has resided upon it ever since, cultivating, using, and paying taxes upon it.
   Opinion.— Our opinion is that there is no error in the judgment of the court below.

The assignments of error are so vague as not to indicate very definitely the grounds of this appeal.

Counsel for appellant suggest in their brief that the deed from Daniels and wife to Flowery did not pass title to the certificate by virtue of which the land was located. It should have been objected to when it was offered in evidence. Mrs. Daniels denied executing the deed, but this amounts to nothing. See Williams v. Powers, 48 Tex., 141; Hartley v. Frosh, 6 Tex., 108.

In our opinion the judgment should be affirmed, and it. is so ordered.

Affirmed.


text:
    H. L. Malloy v. Richard Callahan.
    (No. 4392.)
    Charge.— Ground for reversal, when. Where the charge misled the jury to the injury of the party complaining, judgment will be reversed..
    Appeal from Navarro county. Opinion by Watts, J.
    Statement.— On May 6, 1879, appellee brought this action of trespass to try title against appellant. The property sought to be recovered was described as lot No. 4, in block 241, situated in Corsicana. Appellee claimed the same by and through a conveyance from- Mooney and wife: Appellant claimed that he had previously purchased the lot from Brennan as the agent of Mooney and had paid the purchase money therefor, and that Mooney had ratified the same and executed a deed, but that the same had not been delivered; that he had long been in possession of the property, and had placed valuable improvements upon it; that his possession gave notice to Callahan of his rights, etc,, and in the alternative prayed to recover of Mooney the money paid and that he be served with a copy of the answer.
    Appellee replied denying that appellant had paid money for the property, alleging that Mooney had made a deed and delivered it to his attorney with instructions not to deliver it to appellant until he paid the purchase money, which he failed to do, and that Mooney thereupon withdrew the deed and sold and conveyed to appellee the land, etc. Trial, verdict and judgment for appellee, from which this appeal was taken. The material error is in the charge of the court and is indicated by the opinion.
   Opinion.— If either Brennan or Mooney were parties to this suit, the fact is not shown by the record.

The court did not err in answer to the question of the jury as to finding a verdict against them in favor of Mooney for any money paid by him on the lot. As they were not parties to the suit no verdict "could be returned against them, and the answer of the court was correct. As the case was presented there was no question raised as to the lot having been the separate property of Mrs. Mooney. Ho such claim is asserted by the pleadings. The property was presumptively the common property of Mooney and wife, and that Mooney under the law had the right to sell and convey it without being joined by the wife. However, throughout the charge the court treats Mrs. Mooney as a necessary party to the trade.

The jury are in effect informed that the sale and conveyance of the lot to Malloy must have been made by Mooney and wife, or their dulj7 authorized agent. But if the trade was made by Brennan without authority, then if Mooney and wife ratified and confirmed it, that would be sufficient. It is well settled that an erroneous instruction is not ground for reversal of the judgment, unless shown to have produced actual or possible injury to party complaining. See Loper v. Robinson, 54 Tex., 516, and authorities cited; also Carter v. Eames, 44 Tex., 548.

However, from an examination of the record, it does not appear but that the jury were misled to the injury of the appellant by reason of the errors in the instructions of the court. Judgment beveesed and oause bemanded.


text:
    C. H. McCormic & Bro. v. M. G. Bush.
    (No. 3889.)
    Agency.— When the constituting act creating -the agency is in writing, the nature a.nd extent of the powers must be ascertained by the writing.
    Sub-agents—Ratification of acts — Evidence.—The question of the ratification by the principal of the acts of a sub-agent is a mattter of fact for the jury, as was also the question as to whether letters written to the sub-agent in the principal’s name, by a clerk, were authorized by the principal.
    . Appeal from Grayson county. Opinion by Watts, J.
   As the business was suspended by the war, the appellant was not entitled to interest on whatever commissions the jury might allow him, from the 1st of January, 1862, and in this particular the court erred in the charge tt> the jury.

If, as claimed, appellee was the agent of appellants, then under the asserted contract, if the latter assumed control over the “ orders, contracts, notes, accounts and assets accruing and growing” out.of the agency, they were to allow him compensation in proportion to the services rendered previous to their assuming such control. .

Under the contract appellee’s commissions, for selling and delivering the reapers and mowers and collecting the money therefor, was to be ten per cent. It was not pretended that appellants interfered with appellee in reference to the matter, or that they resumed control of the matter until sometime after the close of the war. Then appellee would not be entitled to interest on commissions until his right to such commissions had accrued. Up to the time appellants .assumed control and created other .agencies through which they sought to realize upon the claims, appellee had not complied with the terms of the supposed contract in this, that he had not collected the claims for appellants.

As he had not made the collections at the time they assumed control over the matter, then if his compensation is to be regulated by the contract, he would be entitled to a proportionate commission on the claims, including principal and interest, that were then collectible, and interest on that sum from that time until the rendition of judgment. It is stipulated in the asserted contract under which appellee claims that 65 Bush agrees to do all business pertaining to selling reapers or reapers and mowers combined, collecting and remitting all dues upon sales, etc., as hereinafter prescribed, for and in consideration of the sum of ten per cent, upon each Reaper and upon each reaper and mower combined, to be due and paid said Bush out of actual collections, and in proportion to the amount of collections made from time to time; provided, however, that upon final settlement no commissions shall be allowed in case where the party, purchasing fails to pay more than $65. The compensation only accrues to him on actual collections, and where more than $65 is paid upon each machine. And the compensation stipulated for in the event appellants resumed control of the matter before the business was completed was a proportionate commission according to the work done under the agency, dependent upon the claims being collectible at the time.

This rule would also be subject to the qualification that more than $65 of the claim for each machine was collectible at the time appellants assumed- control, to entitle him. to a proportionate commission upon the claim.

So far.as appellee claims to have been the agent of appellants, by reason of contract between him and McKay, the question would depend upon the extent of McKay’s power to bind appellants in the matter; and if his authority was in writing at the time such an agreement was made, appellee would be required to look to the writing for the purpose of ascertaining the extent of McKay’s power to bind the applications in that particular matter. Reese v. Medlock, 27 Tex., 125; Parsons on Contracts, vol. 1, p. 44. Even if McKay, without authority, constituted Bush the agent of appellants, and appellants afterwards acknowledged and treated him as their agent, then he would be considered as their agent. Story on Agency, sec. 249.


text:
    The Life Association of America and John F. Williams, Superintendent, v. F. M. Goode.
    (No. 1238.)
    Corporation — Dissolution of — Same created by another state.— In suit against dissolved non-resident corporation, the petition should show facts under the laws of the other state, the judicial decree, the receiver and his authority, joining him in the suit.
    Appeal from Grayson county. Opinion by Walker, J.
    Statement.— Plaintiff, F. M. Goode, is a resident of Grayson county, Texas. Defendant, the Life Association of America, was a corporation, organized under the laws of the state of Missouri, for the purpose of carrying on a life insurance business, and having its domicile in the city of St. Louis, in said state. Plaintiff’s amended original petition, filed February 25, 1881, alleges, in substance, that his original petition was filed on the 1st day of March, 1879; that, at various times between September 80, 1872, and April, 1875, he had paid the association, sums of money aggregating the sum of §1,630; that, in consideration of such payments, the association, on the 30th of September, 1872, issued and delivered to plaintiff its policy of insurance, insuring his life in the sum of §10,000; that prior to and at the time of entering into said contract of insurance, and at the time of the several payments made thereon by plaintiff, the agents of the association falsely represented to plaintiff that the association was solvent and responsible, was making money and had a large capital and surplus, when in fact, as said agent well knew, the association was insolvent, was doing a losing business and had no such capital as represented; that plaintiff vras induced by said representations to take said insurance and pay said money; that on December 31, 1877, the association represented to plaintiff that it was about to discontinue its business and wind up its affairs in 1878, and demanded of plaintiff that he surrender his policy and accept in lieu thereof a paid-up policy for the sum of $1,250; that plaintiff surrendered his old policy and received instead a paid-up policy on his life for $1,250, on the fortition plan, payable to his wife, for the benefit of herself and the children of plaintiff according to its terms.
    That the consideration for which the fortition policy was issued was the money paid by plaintiff on the $10,000 policy.
    That the agents of the association at the time they issued the fortition policy knew that the association was insolvent, and that on the 10th of November the association was adjudged insolvent and its officers enjoined from conducting said business, and prays for a judgment for said money and for a foreclosure of an attachment lien on certain attached real estate in Grayson county formerly owned by the association, and upon which an attachment issued in the case was levied on 25th of February, 1881.
    An agreement was filed to the effect that by the appearance of the corporation its existence should not be held to be admitted, and that it might make any defense it could have made if regularly served with citation.
    Finley & Pasco appeared for the association, and after general and special demurrer pleaded the dissolution of the corporation, filed a general denial and a special plea alleging that on the 10th of November, 1879, the said corporation was dissolved by a decree of the circuit court of the city of St. Louis, state of Missouri, and all property, whether in the state of Missouri or elsewhere, including property attached in this suit, was conveyed to and vested in Wm. S. Eelfe as superintendent of insurance of state of Missouri and his successors in office, to hold and dispose of for the use and benefit of the creditors and policy-holders of the association as provided by the laws of Missouri, and that said transfer of all property was made long before the suing out of the attachment in this suit.
    Plaintiff excepted to this plea in abatement and special answer, which was sustained.
    On April 20, 1881, John F. Williams made himself a party and filed an answer alleging that he was the successor of Wm. S. Iielfe as superintendent of insurance; was vested with legal powers, etc.; demurred generally and specially, which was sustained by the court, when plaintiff filed a trial amendment; trial was had, resulting in a verdict for plaintiff for $2,425.97. Plaintiff remitted all in excess of 82,000, for which judgment was rendered, with a foreclosure of attachment lien. Motion for a new trial overruled and defendants appealed.
    First assignment of error: The court erred in sustaining the demurrer to defendants’ answer. The defendants’ corporation having been dissolved, no judgment could be rendered against it. . First proposition, first assignment of error: The dissolution of the corporation abated the suit,
   Opinión.— The effect of the dissolution of a private corporation by decree of a court of competent authority, having jurisdiction over the same, is to extinguish and annul thenceforth its corporate powers; and the sovereign power which had brought it into existence by giving it an artificial personality,, thereby, through its judicial mandates, terminates that existence by the withdrawal of all its franchises. See 2 Wait’s Act. & Def., 350; Ang. & Ames on Corp., secs. 638, 799; National Bank v. Colby, 21 Wall. (U. S.), 615.

Our statutes regulating the dissolution of corporations refer alone to such corporations as are or shall be “ created bv or under the laws of this state.” B. S., arts. 606-608. Under the legislation in our state as it exists it seems to follow from the application of the rules of law governing the subject of the right of a resident citizen of Texas to sue in this state a corporation which owes its existence to the laws of another state, and has been legally dissolved with a forfeiture of its rights and franchises, that after such dissolution a suit could not be brought against such extinct corporation, or, if pending, could no longer be maintained in the courts of this state.

It was admitted by the parties on the trial that the decree of the St. Louis circuit court was authorized by the laws of the state of Missouri.

The plaintiff clearly could no further proceed in his suit ■ after the circuit court decree unless by making the receiver a party; and when the plea in abatement was interposed it became necessary that the plaintiff should proceed to lay the basis for a continuation of his suit by a recognition of the altered status of his rights since he began his suit, by making the receiver á defendant. He not having done so, Williams’ plea in abatement of the suit ought to have been sustained.

Reversed and remanded.


text:
    J. R. Johnson and Milton Park v. Bruno Durst.
    (No. 4160.)
    Title — Legal notice.— A patent to the heirs of the grantee of a land certificate vests in such heirs the legal title to the land unappropriated by the location upon which patent issues, and a purchaser from such heirs without notice takes title free from equities arising before location.
    Appeal from Limestone county. Opinion by Delaney, J.
    Statement.— Appellee, as plaintiff below, instituted this suit May 29, 1879, against appellant, J. R. Johnson, and Melvin Herring to remove a cloud from the title to six hundred and forty acres of land situated in Donley county, Texas; to quiet appellee in his title to said land; to cancel and annul certain conveyances thereto; to enjoin defendants below from using said conveyances as muniments of title to the land, and from attempting to dispose of or sell or otherwise incumber the land under or by virtue of the same, and “ to vest the land by a decree of the court ” in him.
    On June 10, 1879, appellee as plaintiff below filed an amendment making appellant Park a party on the ground that a previous conveyance by him to Melvin Herring of three hundred and twenty acres of the land had been canceled, and the title thereto reconveyed to Park before the institution of the suit, and the same relief was asked against the original defendants. At the October term, 1879, defendants Johnson and Park by an amended original answer presented, among others, the following material issues, to wit: 1st. A general denial. 2d. Statute of limitations of two years, as applicable to the certificate located on the Donley county land. 3d. Statute of limitations of three years as to the land in controversy. 4th. That each of them were Iona fide purchasers of their respective interests in the land, and had the better right and title thereto. 5th. Defendant Park submitted the issue that his vendor, S. G. McLendon, had located the land' under contract with William Middleton, sole heir at law of John Middleton, deceased, who owned the original one thousand two hundred and eighty acre head-right certificate of which the six hundred and forty acres of land located in Donley county was the unlocated balance, and that said Middleton had conveyed three hundred and twenty acres of land to McLendon as the latter’s locative interest, and that he (Park) was a bona fide purchaser from McLendon of said three hundred and twenty acres. On the same day plaintiff below filed his first supplemental petition by way of replication to defendants’ amended original petition, presenting among others the following material issues, to wit: 1. A general denial. 2. That the six hundred and forty acre certificate was filed on the Donley county land on the 2d day of December, 1874, and was not, in fact, issued from the general land office until December 28,1874; and that neither of the defendants nor any of their vendors had possession of said certificates before the same were filed on the land in Donley county.
    October 24, 1879, case‘came up for trial, and the plaintiff below dismissed his suit as to Melvin Herring; same was submitted to the court upon the facts and law, without the intervention of a jury. Judgment was rendered for appellee, who was plaintiff below, canceling and annulling the following conveyances, to wit: 1st. A deed from W. Middleton to S, G-. McLendon for three hundred and twenty acres of the six hundred and forty acre tract in Donley county, dated June 11,1877. 2d. Deed from S. G-. McLendon to appellant Park to same three hundred and twenty acres, dated July 11,1877. Sd. Deed from W. Middleton and wife to J. R. Johnson, dated June 21, 1877, conveying the other three hundred and twenty acres of the six hundred and forty acre tract in Donley county, and enjoining appellants from using said deeds as muniments of title, ' or from disposing of said lands, and for all costs of suit. Appellants gave notice of appeal, filed their appeal bond, and bring said cause to this court.
   Opinion.— The judgment upon which appellant relies vested in his vendor, W. B. Middleton, title to a tract of land in Leon county, describing it by metes and bounds. It makes no mention of the certificate by virtue of which the land was located. It could have been no more effectual to vest such title than would a conveyance of the same land to W. B. Middleton by the grantee of the certificate. The most that can be said is that the judgment passed to W. B. Middleton the right to procure a patent to the land, or if that could not be done on account of the conflict, then it gave him the right to raise the certificate and locate it elsewhere.

But he did not do this. He did not file in the land office a copy of the judgment or notice that he had any interest in the certificate. The record óf his judgment in Leon county was for this purpose wholly ineffectual. Love v. Berry, 22 Tex., 371; Baggett v. McKenzie, 28 Tex., 581.

In 1874 a certificate for this unlocated. balance was issued to the heirs of the grantee, and in 1877 a patent issued to these heirs for the land upon which the certificate had been located. The legal title thus vested in the heirs. Nothing but an equity remained in appellee as the vendee of W. B. Middleton. William Middleton was the sole heir of tile grantee of the certificate. The patent vested in him the legal title. The title passed to appellants as innocent purchasers for value and without notice of appellee’s equities. Love v. Berry, supra. For it is admitted that they had no actual notice, and there is nothing in the' record to affect them with constructive notice. Their equities are equal to his, and they have the legal title. Baggett v. McKenzie, 28 Tex., 582..

Judgment reversed and rendered for defendants.


text:
    J. H. Hubbard v. S. W. Bigham.
    (No. 3759.)
    Vendor's lien— Title bond.—Plaintiff in seeking to enforce vendor’s lien need not allege validity of title he gave bond for upon the payment of the notes; it would be sufficient to aver willingness and readiness to convey title to defendant in accordance with the terms of the bond.
    Appeal from Coryell county. Opinion by Walker, J.
    Statement.— This suit was brought by S. W. Bigham against J. H. Hubbard to recover the amount of two promissory notes of $400 each, with ten per cent, interest from 31st of March, 1875, which plaintiff alleges were given by defendant as part payment of' three hundred acres of land sold by plaintiff to defendant, which land is described in notes accordingly, and as being a part of the J. P. Irvine surve°y in Coryell count}7, on Brown’s Creek. The petition alleges that, in consideration of the notes aforesaid, the plaintiff executed and delivered to the defendant his bond for title, obligating himself to make the defendant a title to the land on payment of the notes, and prayed for judgment on the notes and to enforce his vendor’s lien on the land.
    The defendant pleaded that the plaintiff was unable to make him a good title, alleging that one Benjamin F. Gass owned the land by a valid title superior to the plaintiff’s claim or title thereto; that Gass claims the land under his aforesaid title, and he prays that the collection and payment of the notes shall be stayed until plaintiff shall be in a condition to make "him a good title. The cause was submitted to the court. Judgment was rendered for the plaintiff for the amount sued for, and decree for the foreclosure of the plaintiff’s lien as the vendor of the land. From this judgment the defendant appeals and assigns errors.
    The plaintiff, on trial, introduced the notes sued on, and the defendant proved the following facts by appropriate-documentary evidence, viz.: Deed to land in question from James Beiley to J. W. Webb, dated 28th of August, 1857; deed of trust conveying said land to Hancock & West as trustees to secure a debt to said Ben. F. Gass, dated May 17, 1850; and also deed of conveyance from Hancock & West to said Gass, dated September 3, 1851.
    1. That the court erred in rendering judgment for the plaintiff because plaintiff failed to allege and prove that his title was superior to the title of B. F. Gass, as alleged in defendant’s answer.
    2. Because the defendant alleges in his answer and proved a valid title to the land to be in B. F. Gass, and therefore, the contract being executory, the plaintiff was not entitled under bond for title, which guarantied a good and sufficient title to defendant to recover in this action.
    3. Because the facts proved showed that the plaintiff was not able to make title as required by this bond, and that he neither alleged nor proved that he had any title to the land.
    4. Court erred in rendering judgment for plaintiff because he failed to show-any valid title in himself, the defendant having alleged and proved a valid title in B. F. Gass.
   Opinion.— All of the assignments of error are successfully answered against the appellant, if it is a true proposition that he failed to show by his evidence.concerning the supposed title of Gass, a state of case that did not establish prima facie that Gass had a title superior to that of the plaintiff. If the defendant failed to show that there existed a better title outstanding in Ben. F. .Gass than the plaintiff had, the plaintiff’s evidence would, in that case, have entitled him to recover; and in order to enable him to do so, the plaintiff would not have been subjected to the nécessity of introducing rebutting evidence to establish his title to the land.

The burden of proof being upon the defendant, if he failed to maintain by evidence his allegation in respect to the plaintiff’s want of title, the plaintiff clearly must recover. A vendee who resists the payment of the purchase money on the ground of a defect of title must allege and prove by competent and sufficient evidence the existence ' and validity of the outstanding title; and this, too, although the contract be executory, not executed. Perry v. Rice, 10 Tex., 367; Cook v. Jackson, 20 Tex., 209.

The evidence failed to establish a valid title in Gass. The deed of conveyance to him from the trustee invested him with the interest which they had derived through Beiley’s conveyances to Webb and through Webb-’s deed of trust before mentioned; but without additional evidence as to-the character and validity of Beiley’s title, it is not made to appear that it was such as upon which any right to the land could be maintained by virtue of the links of title which were thus produced. The immediate deed to Glass from Hancock & West, of itself imports no right or title in the grantors to the land, and it is not strengthened by the links which connect it with the title of Beiley; for unless Beiley is shown to have had title when he convejmd to Webb, the whole chain of transfers or deeds is inconclusive and insufficient as evidence of title to the land, nor can its strength be increased by protecting its length by means of successive links of conveyance.

There is no evidence that the title produced in evidence was ever derived from the sovereignty of the soil, or that any rights had ever been derived under any of the deeds by virtue of possession and claim under them, so as to perfect title by limitation or prescription.

Under such a contract as existed between the parties for the purchase of the land it was not required of the plaintiff, to enable him to recover on his notes, that he should aver and prove that he has a valid title to the land as a precedent condition to his right to thus enforce his contract; it was sufficient for the plaintiff seeking to enforce the collection of the notes and to foreclose his lien on the land, to aver a readiness and willingness to convey title to defendant in accordance with the terms of the bond whenever the purchase money shall have been paid. Sharp v. Baker, 22 Tex., 306; Perry v. Rice, 10 Tex., 367. And if the defendant resists the payment under a defense that the plaintiff is not able to make to him a valid title, he assumes the burden of proving that fact; and until he succeeds in making a prima facie case under that defense against the plaintiff, the basis on which the plaintiff rests his right to recover is not altered, and he need not make his proof as to his title, nor offer evidence concerning it to rebut evidence which possesses no legal force to establish a title superior to his own.

Judgment affirmed.


text:
    J. J. Wallace v. City of Dallas.
    (No. 1731.)
    Municipal corporation — Damages.— In the exercise of the power to grade its streets and to provide drainage or sewerage, a municipal corporation does not become liable for the damage caused by the overflow of surface water.
    City officers liable when they performed their duty unskil-" fully or negligently, and not the city.
    Error from Dallas county. Opinion by Watts, J.
    Statement.— Plaintiff in error brought this suit against defendant in error to recover damages for alleged injuries to his lot and store-house thereon, situated in the city pf Dallas, by reason of the action of the city council in having caused the grade of the street in front of his property to be raised, and also by reason of having caused to be filled up a natural outlet or channel for the flow of water, which channel was adjacent to plaintiff’s lot, and causing to be constructed in'place thereof an insufficient sewer or outlet for the flow of water, which formerly had found its passage through the said natural channel, the result of these changes being that in ^November, 1883, on the occasion of a heavy rainfall, plaintiff’s lot and store-house were overflowed with water and he was thereby damaged, as alleged, in the sum of $1,500.
    Defendant answered by general demurrer, general denial and special pleas. A trial upon the merits before a jury resulted in a verdict and judgment thereon for the defendant.
   Opinion.— From an examination of the statement of facts we believe the following to be the case as made by the preponderance of evidence:

1. Plaintiff owned a lot upon which was situated a storehouse within the corporate limits of the city of Dallas, and which store-house was at the time of the alleged injury occupied and used for the business of merchandising by tenants of plaintiff under a lease for one year, at the price of $40 per month rent.

2. By action of the city council of Dallas, the grade of the street upon which this lot abutted was ordered to be raised. Also, a natural ditch or gully which was adjacent to the lot, and which conveyed away water, which; without said ditch or gully, would have flowed upon said lot, was ordered by the council to be filled up, and another ditch or sewer was ordered to be constructed in its stead; and these orders of the city authorities were executed.

3. When the street was graded, the grade was higher in front of plaintiff’s house than the floor of said house — at least twelve inches higher.

4. The new ditch was not as large as the old one and was not straight, but had an angle in it, and did not have as much capacity for carrying off the water, from the lands which it drained as did the old ditch.

5. On ¡¡November 4,1873, a very heavy rain fell in Dallas, and this new ditch was insufficient to carry off the water from the grounds which it drained, the consequence being that the water backed up upon plaintiff’s lot and overflowed his store-house, and caused him to sustain damage.

G. Plaintiff’s store-house would not have been overflowed, and he would not have sustained damage, if he had raised said house to the grade of the street.

1. The old ditch or gully only carried off surface or rainwater. At the head of this ditch or gully were two springs, the water from which flowed through it for a little distance, but was- absorbed in some swampy ground before it reached plaintiff’s premises.

Our conclusions of the law, as applicable to the foregoing statement of the case, are as follows: 0

1. The city of Dallas, through its corporate authorities, unquestionably had the power to raise the grade of the street. 2 Dillon on Corp„, G89 et seq.,

2. It likewise had the power to establish and change a system of drainage for the city, so as to carry off the surface water which might accumulate within the city limits, 2 Dillon on Corp., 578, n.

3. If the officers of the city, who "were charged with the duty of grading the street and constructing a new ditch or sewer, performed their duty unskilfully or negligently, they, and not the city, would be liable for injuries caused by such unskilful or negligent construction. Keller v. Corpus Christi, 50 Tex., 614; Navasota v. Pearce, 46 Tex., 525.

4. In exercising the lawful powers of causing the street grade to be raised, and a new channel to be constructed for draining the surface water, the city did not become liable for the consequential damages caused by surface water to plaintiff’s premises. 2 Dillon on Corp., p. 1040.

5. The doctrine of contributory negligence on the part of plaintiff applies in this as in other cases when the action is for damages caused by negligence. In this case plaintiff contributed to the injury sustained by him, by not raising his house to the level with the street, which, if he had done, would have prevented the damage for which he seeks a recovery. 2 Dillon on Corp., p. 1926; Thompson on Negligence, pp. 1146-1148.

No error has been committed and therefore judgment is affirmed.


text:
    W. G. Wilson v. W. R. Hampton et al.
    (No. 941.)
    Lien, vendor’s.— Two' parties holding notes secured by vendor’s lien on the same land may join in an action to recover the amount due upon tlieir respective notes and to foreclose the lien.
    Pleading — Action — Joinder.— Where the- suit is brought by the payee of a note, and it is alleged that the note was executed and delivered to him, it is not necessary to allege that he is still the owner of and holder of the same. All parties having an interest in the subject-matter may join in the same suit, although they may claim different interests.
    School land — Sale— Lien.— The purchaser of school land may sell and convey the same upon credit and foreclose his lien thereon while the title remains in the state. Such foreclosure only affects the interest of the defaulting purchaser.
    Appeal from Stephens county. Opinion by Watts, J.
   Here the two notes sued on were executed by appellant to the appellee for the purchase money of the land described in the petition, and Hampton assigned one of the notes to Ledbetter; and they join in the suit to recover the amount upon their respective notes and to foreclose the lien upon the land, as a right in common between them.

The first proposition is that there was a misjoinder of parties plaintiff, and that the court erred in overruling the exception to the petition presenting that question. In this state the rule is the same as in equity; that is, all parties having an interest in the subject-matter may join in the same suit. And there is no objection to the joinder of plaintiffs because they claim different interests, provided the subject-matter is the same. Faulk v. Faulk, 23 Tex., 655. Any person having an interest in the subject-matter which can be affected by the decree may join in the suit. Garrett v. Gaines, 6 Tex., 435. So far as regards the amount sought to be recovered upon their respective notes, neither party is interested in the claim or debt of the other. But each had a common interest in the foreclosure of the lien, to secure the payment of their respective claims. Wooters v. Hollingsworth, 58 Tex., 374; Salmon v. Downs, 55 Tex., 243. Then, so far as the foreclosure of the lien formed the subject-matter of the suit, they were both interested; and under our liberal system, where the primary rule is to adjust all matters in the same controversy where that may be reasonably accomplished, there is no valid objection to their joining as plaintiffs in the suit.

By the allegations- in the petition it is shown that the notes were executed and delivered to Hampton, who was the payee therein, and that he assigned one of the notes to Ledbetter,-and that he is the legal owner and holder of the same.

The objection urged is that it is not alleged that Hampton was the owner and holder of the other note. It is well settled that the title to the land upon which the lien was foreclosed was still in the state for the benefit of the school fund; that no vendor’s lien would arise out of the assignment or sale of the same upon credit. In support of that proposition appellant cites and relies upon Palmer v. Chandler, 47 Tex., 333. In that case a pre-emptor, who had not resided upon or occupied public land for the time prescribed by law to enable him to obtain title, sold the same on a credit, and afterwards undertook to foreclose a vendor’s lien, and the court said: “It would be simply absurd to say that there is a vendor’s lien to secure the payment of the purchase money, when the vendor has no such title or interest in the land sold as served as a consideration for a promise to pay the purchase money, and when the vendee may recover it back if paid.” But in the case of Bybee v. Wadlington (this volume), where a pre-emptor had occupied the land for three years, it was held that the suit could be maintained on a note given to the pre-emptor for his right to the same. This was upon the ground that, having occupied the land for the time prescribed by law, this vested in him such interest or equity in the land as would support the promise. However, this was school land which Hampton had by executory contract purchased from the state under and by virtue of the provisions of the act of July 8, 1879 (R. S. App., 39).

He had so far complied with the terms of that act as to make the first payment and deposit with the proper authorities his obligation for the deferred payment, and the land had become subject to taxation, etc. Hampton was by the terms of the act authorized to sell and assign his right to it. Therefore there is no similarity between the case and those cited by appellant. Here Hampton undoubtedly had. such an interest in the land as would support the promise made by appellant to pay for it ™ a right clearly recognized by the state and made the subject of sale and conveyance by law. However, it is claimed that as the title still remained in the state, for the benefit of the school fund, that no lien could be foreclosed upon the land. The pur-, chaser of school land, after complying with the law in making the first payment and depositing his obligations for the deferred payment, occupied toward the state very much the position of one who has purchased from another land upon credit and taken a bond for title. When he complies with the statute in the one case, and with the terms of the bond in the other, he places himself in a position that entitles him to a conveyance of the fee. In other words, his purchase is executory and the title contingent. But while in fieri the purchaser under the bond for title may sell and convey upon credit, and may sue upon the note or notes and. foreclose his lien. But that would not affect or in any manner divert the superior title out of the obligor in the bond. A purchaser at such sale would simply take the place of the obligee in the bond, and by performing its conditions would entitle himself to a conveyance of the fee. In either case the foreclosure only affects the interest of the defaulting purchaser. There is nothing in the argument that to allow such foreclosure and sales would be against public policy, creating confusion and inconvenience, in the department. Such lands may be sold and conveyed by contract, and why would not a sale by operation of law be equally as efficacious.

Judgment affirmed.


text:
    Texas & Pacific R’y v. John J. Howard.
    (No. 823.)
    Negligence.“A question of fact in each case.
    Damages.—A father cannot recover for mental and physical suffering of his infant child.

      Appeal from Tarrant county. Opinion by Watts, J.
    Statement.— On the 19th of April, 1882, the plaintiff, John J. Howard, brought this suit against appellant, alleging, in substance, that on the-day of December, 1881, while he was driving his carriage, containing himself, his wife, Rosa Howard, and his infant daughter across one of the public streets in the city of Fort Worth, one of appellant’s trains of cars negligently ran or backed into and against his carriage, whereby he and his wife and daughter were thrown from said carriage and severely injured, causing great pain of body and mind; that his carriage was greatly damaged, and in consequence of said injuries he had been put to much expense for medicines and physicians, and had lost time from his business. His wife’s health had been greatly impaired, whereby he had lost the benefit of her services for a long space of time, all to his great damage of 810,000. On same day his wife, the said Rosa, joined by her said husband, brought her suit TSTo. 2408 in said court against appellant, alleging substantially that she had been injured as before stated; that she had suffered great pain of body and mind therefrom, and claimed damages to herself of §10,000. To each of said petitions appellant pleaded the general denial, and a special plea averring that if plaintiffs were injured as stated it was by reason of their own contributory negligence.
    At the January term, 1883, of said court,'on motion of appellant, said suits were consolidated and by said court ordered to be tried as one suit under the style of John J. Howard and wife v. The Texas & Pacific R’y Co., No. 4207. Cause tried January 26, 1883, and verdict of jury in favor of appellees for $20,000. Motion for new trial overruled aud cause appealed.
    Upon the trial below the court instructed the jury as follows: “The ringing of the bell, or the blowing of the whistle only, upon a locomotive attached to a long.freight train which is standing with the rear truck just on the west edge of the street crossing defendant’s railroad track, is not such notice to those passing upon the street of an intended backward movement of the train as will absolve the railroad company from the charge of negligence.”
   Opinion.— In passing public crossings the statute requires that the bell shall be rung or the whistle sounded. A failure to comply with this requirement is, as a matter of law, negligence, and may be so declared by the court in the charge to the jury. T. & P. R’y v. Murphey, 56 Tex., 356; H. & T. C. R’y v. Wilson, 60 Tex., 142. There may be cases where the company’s employees might, as a matter of fact, be guilty of culpable negligence at public crossings, notwithstanding they may comply with the statute in reference to ringing the bell or sounding the whistle; but whether or not such negligence exists is a question of fact to be determined from a consideration of the evidence. At these crossings the exercise of prudence is reciprocal—those operating trains must exercise reasonable care in avoiding collision with those passing the track, and so those who cross the track at such places are required to exercise reasonable care to avoid being injured by moving trains. The degree of care required of each is that which a reasonably prudent person would exercise under like circumstances.

While the legislature deemed it necessary for the protection of the public that the signals mentioned should be given, it by no means follows that the employees of the company, in passing public streets and highways, are not required to use other precautionary measures so as to avoid inflicting injury upon others.

Whether, under the circumstances mentioned in the charge, the ringing of the bell or blowing the whistle was or was not sufficient to absolve the company from the charge of negligence, was a question to be determined by the jury upon a consideration of all the evidence directed to that issue.

If, under the same conditions, a reasonably prudent and cautious person would have used other precautionary measures, then it was incumbent upon those operating the train to have done likewise, and a failure in this particular would constitute negligence. When considered with reference to that which precedes as well as that which follows, it clearly appears that the effect of this charge was to withdraw from the consideration of the jury that question of fact; that is, the court in effect declares, as a matter of law, that a compliance with the statute in this case was not sufficient diligence on the part of those operating the train. This is made more evident by other portions of the charge, in ■which it is said that in such cases “ordinary care would suggest to the defendant to use all available signals and warnings to avoid collision at said crossing.” The case of Eaton v. Erie R’y Co., 51 N. Y., 544, cited in support of the charge, supports the converse of the proposition insisted on by appellees. Bessie Howard, the infant, was not a party to the suit; and while the father in his own right might recover compensation for a loss of her services until her majority, and for expenses incurred on account of the injuries, such a recovery would not preclude her from maintaining an action in her own name for such elements of damage. See G., C. & S. F. R’y Co. v. Styron, ante, p. 275; Cooley on Torts, 135, 228.

Reversed and remanded.


text:
    T. J. Wall v. Texas & Pacific R’y.
    (No. 938.)
    Master and servant.— An agent considered as master to another employee, when.
    Appeal from Callahan county. Opinion by Watts, J.
    Statement.—Appellant brought this suit against the company to recover damages for injuries received while in the employment of the company as car repairer at Baird, It is in effect alleged that Baird is the end of a division on the company’s line, and that it has there a department for the repair of cars. That in October, 1881, James Monahan was foreman of that department, with full power and authority to employ and discharge such servants as were engaged therein.
    That appellant was employed as a servant in that department and was subject to the immediate control and discretion of Monahan. That there was a switch at the place upon which cars were placed for repair; that at the time he was injured one car was standing upon that track for repair, and he was directed by Monahan to go to work upon it, but at the time the switch was being used in moving other cars thereon, and he pointed out the danger attending the service to Monahan, as he would be compelled to get under the car to do the work, Monahan then assured him that a guard would be so placed as to give him timely warning of approaching danger and directed him to proceed with the work. That relying upon this assurance he undertook to perform the service, and while under the car making the repairs, other cars, without any notice whatever to him, were run against that upon which he was engaged, and that he was thereby seriously and permanently injured. That Monahan failed to comply with his assurances and did not place any guard in position to warn him of approaching danger. To the petition the court sustained general demurrer and rendered judgment against appellant for costs, etc.
   Opinion.— Under the allegations in the petition Monahan had full and complete power to employ and discharge operators under him, and in sustaining the general demurrer to the petition the court must have regarded appellant and Monahan fellow-servants. An agent having such authority has been generally considered, as far as the servants under his control are concerned, as in legal effect occupying the position of the master. Kan. Pacific R. Co. v. Lit-tie, 19 Kan., 267; Louisville & N. R. Co. v. Bowler, 19 Heisk., 866; Cook v. Hannibal & St. J. R. Co., 63 Mo., 397; Deppe v. Chicago, R. I. & P. R. Co., 38 Iowa, 592. See Wait’s A. & D., vol. 4, 416; also Pierce on Railroads, p. 369, n. 3; 58 Tex., 287. Judge Cooley, in his work on Torts, p. 563, says: It is also, as has been shown, the duty of the master not to send the servant upon dangerous service for which he has not undertaken, and if he places the servant under the orders of another, who requires him to perform such dangerous service, whereby he is injured, the wrongful act is properly attributable to the master himself.” Marr v. Oriental Print Works, 11 R. I., 152; Chicago, etc., R. R. Co. v. Bayfield, 37 Mich., 205; Frandsen v. Chicago, etc., R. R. Co., 36 Iowa, 372.

Where there is no particular danger in the service itself, but the peril arises from extrinsic causes or circumstances which cannot be discovered bv reasonable care, the employer is liable if the servant is injured by reason of neglect or want of exercise of reasonable care upon the part of the employer. Perry v. Marsh, 25 Ala., 659; Gibson v. Pacific R. R. Co., 46 Mo., 163; Cumberland, etc., R. R. Co. v. State, 44 Md., 283; Baxter v. Roberts, 44 Cal., 187.

Again, the servant has the right to rely upon the prudence and caution of the master, and that he will be provided with a suitable place where, with due care upon his own part, he may safely perform the duty assigned to him, except as to the dangers necessarily attending it. The master is liable for injuries to the servant resulting from an exposure to dangers which do not come within the scope- of his employment. Coombs v. New Bedford Cordage Co., 102 Mass., 572. If the servant is employed in a dangerous service, it is the duty of the master to use all reasonable means to protect him against any increased or unnecessary danger that may occur from extrinsic causes. And the greater the peril arising from the service, the more care and prudence is required of the master in protecting him against an increase of danger arising from extrinsic causes. Hayden v. Smithville, etc., Co., 29 Conn., 548; Clark v. Holmes, 7 Hurlst. & N., 937.

Applying these principles to the cause under consideration, and taking as true the allegations in the petition, which are admitted for the purpose of the demurrer, and it seems to us that a good cause of action was therein asserted against the appellee. Under all the circumstances, can it be said that the increased risk was assumed by appellant as incident to the employment? Certainly not.

_ Our conclusion is that the judgment ought to be reversed and the causa remanded.


text:
    Jeremiah Jones v. A. M. Lasater.
    (No. 4963.)
    Judgment voidable when petition alleges residence in one county and citation issues to another.
    Appeal from Parker county. Opinion by Watts, J
    Statement.— November 21, 1882, Lasater brought this suit of trespass to try title against Jones to recover the land described in the petition, deriving .title as follows: Bond for title from himself to Jones, dated January 18, 1881. Judgment in his favor and against Jones on purchase-money notes and foreclosure of vendor’s lien. Sale by virtue thereof and purchase by Lasater, etc. Jones claimed that the judgment on the note was void because there was no service on him; also asserted defenses which might have been applicable in that suit. He averred that the petition in that case alleged that he was a resident citizen of Parker county, which xvas true; that no citation ■ issued to that county, but was issued to Jack county, where he was temporarily attending court, and was there served by the sheriff of that county. An exception xvas sustained to the answer, and the trial, which was had August 10,1883, resulted in a judgment for Lasater.
   Opinion.— It is necessary to ■ determine but one question, and that is as to whether or not the judgment through which appellee derives title to the land is subject to attack in a collateral proceeding. Such a judgment as that under consideration is only subject to collateral attack when it is void, or when its invalidity is apparent of record. Murchison v. White, 54 Tex., 78.

Appellant asserts that the judgment is void because the court had no jurisdiction over his person at the time it was-rendered and that fact was shown by the records in the . cause. The petition alleged that the defendant therein resided in Parker county, and prayed for judgment, and general relief, etc. Citation ivas issued directed to the sheriff or any constable of Jack county, which was accompanied by a certified copy of the petition, and was served by the sheriff of Jack county. The suit was brought in the district court of Parker county, and judgment was rendered by default upon the service had in Jack county.

This is a collateral attack upon the judgment, and the general rule is correctly stated in Freeman on Judgments, sec. 126.

The only defect was in the issuance of the writ to Jack county, whereas the petition alleged that Jones was a resident citizen of Parker county. The defect is not such as to render the judgment a nullity, but voidable only, and subject to be set aside or vacated, by the means and within the time provided by law; but as he failed to appear and assert his defenses in that suit he will not now be heard in this proceeding.

Affirmed.


text:
    Houston & Texas Central R. R. Co. v. Eliza Hicks.
    (No. 810.)
    Evidence.— In suit for damages against railway, statement of engineer inadmissible, when.
    Appeal from Dallas county. Opinion by Walker, J.
   It is assigned as error that the court “ erred in permitting evidence of the declarations of the engineer as to the condition of the locomotive on the trip before the explosion; said declarations made after the explosion, over the objection of the defendant.” Said evidence, given by Dr. Momaud for plaintiff, was that the engineer stated that “he had stopped twice since be left Houston to come to Dallas on that trip to plug the engine to prevent explosion, and said he was d—d glad it was exploded.” Said further that “ he got off of the engine as soon as it stopped; he was looking for it to explode.” The rule of evidence applicable to the question here presented is stated in 2 Wharton on. Evidence, see. 1174. The declarations of the engineer sought to be used to establish the fact of unsoundness, and consequently the unfitness and dangerous condition of the defendant’s engine when the explosion occurred, as admissions made by the defendant’s servant, were not admissible to bind said defendant. Hearsay evidence is admissible when it is part of a transaction, but not where it is merely narrative of it. A narrative of past events cannot be introduced as part of the res gestae. See Felt v. Amidon, 43 Wis., 476. The declarations made by the engineer, although made almost immediately after the explosion, related to facts that were not otherwise connected with the transaction under investigation than as narrative of the preceding facts occurring before the explosion, which, if true, would serve to explain its cause, viz., the dangerous Condition and unsoundness of the engine. Such declarations would be hearsay, and we think the court erred in admitting them; and for this error the judgment is reversed and the cause remanded.


text:
    The Hamburg-Bremen Fire Insurance Co. v. E. J. Moses.
    (No. 939.)
    Service upon corporations must be made in conformity with the statute.
    Appeal from Lampasas county. Opinion by Watts, J.
    Statement.— FTovember 24,1883, Moses instituted this suit against the company'on a fire insurance policy, alleging the execution of the policy in the sum of $750, and the total destruction of the property while the policy was in force; also, that Thos. W. Griffin was the local agent of the company in Lampasas county at the time this insurance was procured and also when the loss occurred, but for the purpose of defeating the jurisdiction of the court he had been removed and his authority as agent withdrawn; that the principal office of the company was located in Austin, Travis county, Texas; that FT. O. Lanve, who resided in' said city and county, was general agent of the company in the state and had charge of the principal .offices.
    Process was served both upon Griffin and Lauve, commanding them “ to be and appear ” before the court and answer the petition, etc. On December 7, 1883, judgment by default was rendered against the company for $750 and costs of suit. The question made and relied upon amounts to this: that there was no service upon the company.
   Opinion.— That the pretended service upon Griffin was ineffectual to bind plaintiff in error admits of no question. As Griffin was not the local agent at the time of the pretended service, it did not bind the company. Revised Statutes, article 1228, provides the manner of obtaining service in this class of cases. It appears from the allegations in the petition that plaintiff in error is a domestic corporation, with its principal office at the city of Austin, in Travis county, and it had no local agent in Lampasas county when this suit ivas brought. To authorize a judgment by default against a corporation or joint-stock company, the process must be served in the manner prescribed by the statute.

It is not made to appear that Lauve occupied the position of either president, secretary or treasurer of the corporation; and it is affirmatively shown that he was not the local agent in Lampasas county. There is no provision of statute that authorizes service to be made upon a general agent. And it cannot be held that service on such agent is equivalent to leaving a copy of the process at the principal office of the corporation during office hours.

We hold the corporation was not served, and therefore the judgment by default was unwarranted.

Beveesed and eemanded.


text:
    Jacob Haby v. Jacob Koenig and wife.
    (No. 922.)
    Injunction—Equity practice.—Equity will interpose by injunction to restrain the violation of a right to an easement, when.
    Jurisdiction; district court has, when.
    Charge ; presume no injury has been done when there is no statement of facts.
    Appeal from Medina county. Opinion by Watts, J..
    Statement.— January 2,1882, appellees brought this suit against appellant to establish their right to an easement or private way over certain lands, to compel him to remove obstructions therefrom, and to recover damages for obstructing the same, claiming that Joseph Haby, deceased, had on the 21st day of November, 1854, divided among his six children his third of a .league of land; that the uplands were divided into six house-lots, and the valley lands into six farm-lots, and had by deed of that date conveyed to each of his children, including appellant and appellee, Mrs. Koenig, a house-lot and farm-lot, and by the deed reserved a right of way or easement along the northern boundary line of the survey, ten varas wide, for the use and benefit of his children, so as to enable them to have access to their farms, and that said way had been in constant use for more than twenty-five years, when appellant wantonly and maliciously obstructed the same by fencing across the way for the purpose and with the intent to injure them; that all access to their farm was thereby prevented, to their injurjq etc. They sought and obtained a preliminary injunction. ■ Appellant moved to dissolve the injunction, which was refused, and answered by general demurrer and general denial. The demurrer was overruled. April 18,1883, the cause was tried and verdict returned and judgment rendered against appellant, establishing the way, perpetuating the injunction, and commanding him to remove all obstructions placed in the way by him or under his direction.
    The statement of facts, on motion of appellee, was stricken from the record.
   Opinion.— But two grounds were assigned in the motion for dissolving the injunction, and these were: 1. For want of equity in the bill. 2. The parties to the suit were not properly described in the bond. The first ground is not well taken, and in the second the bond fully describes the parties to the suit.

It is claimed that the district court had no jurisdiction of the subject-matter of the suit, and for that reason the court should have sustained the general demurrer to the petition. Damages to the amount of $500 were alleged to have accrued to appellees from the wrongful, wanton and malicious acts of the appellant in obstructing their way. There was nothing on the face of the petition to indicate that the claim for damages was made for the purpose of imposing upon the jurisdiction of the courts. And again the title in the land was so far involved in the suit as to confer jurisdiction upon the district court independently of damages claimed. See Dauenhauer v. Devine, 51 Tex., 480; Scripture v. Kent, Condensed Reports White & Willson, secs. 1056, 1057. It has long been the practice in equity to interpose by injunction to restrain the violation of a right to an easement, where it was made to appear that the injury would be irreparable. High on Injunctions, vol. 1, sec. 848.

As there is no statement of facts in the record which can be considered, this court will presume that no injury resulted from any erroi’s complained of in the charge of the court. See Frost v. Frost, 45 Tex., 325; Cannovan v. Thompson, 12 Tex., 247; Hutchins v. Wade, 20 Tex., 7. No objection as to the sufficiency of the evidence to support the' verdict can be considered in the absence of a statement of facts. The rule in such case is that everything will be presumed to have been proved which could have been legally established under the issues made by the pleadings. Bond v. Mallow, 17 Tex., 636; Collins v. Autry, 4 Tex., 371.

Judgment affirmed.


text:
    John P. Sedwick v. T. J. Carlew.
    (No. 930.)
    Lien, mechanic’s.— A material-man’s lien based on open account, and filed subsequent to a deed of trust, creates no lien where property is sold under deed of trust.
    Appeal from McLennan county. Opinion by Walker, J.
    Statement.— The plaintiff’s claim of lien as a material-man is based on an open account and affidavit to the same recorded January 4, 1875. The deed of trust under which Oarlew claims was recorded April 28,1871. The defense set up by Oarlew was that he purchased the premises in controversy, which are sought by plaintiff to be subjected to the lieri of the plaintiff, at a sale made March 7,1876, under the abovenamecl deed of trust; that he paid $1,230 cash, gold coin, for the property, and received a deed from the trustee, and went into possession of the property; that the lien created by said deed of trust was prior to any pretended lien of plaintiff. The assignments of error do not otherwise call in question the correctness of the judgment than in respect to the supposed exclusiveness and superiority of the plaintiff’s lien for material furnished in making the improvements, over a valid, subsisting anterior lien on the property, which had been repaired or improved with such materials.
   Opinion.— The appellant maintains that such is the character of his lien by virtue of the second proviso of the first section of the statute of 1839. Paschal’s Digest, article 4592. This gives a lien only to master-builders and mechanics whose contracts for service or material shall be reduced to writing, and its benefits are not extended to open ac-. counts for such service or material, and it cannot be invoked to render it equally applicable to the act of November 17, 1871, regulating mechanics’, contractors’, builders’ and other liens. Articles 7112 and 7116, Paschal’s Digest, subsequently enacted, provides for liens of this character in respect to verbal and written contracts. Phillips on Mechanics’ Liens, secs. 11, 20; McKim v. Mason, 3 Md. Ch. Rep., 186; Rees v. Ludington, 13 Wis., 276; Jessup v. Stone, id., 466. We conclude that there is no error and that the judgment ought to be a-ffirmecl.


text:
    G., C. & S. F. R’y Co. v. Doran & Anderson.
    (No. 5034.)
    _____ Pleading — Amendment.—Where the suit was originally brought to recover the land and for damages thereto, and the plaintiff by trial amendment pretermits the question of title, and relies upon the allegations of damages, such change in the pleading is not the assertion of a new cause of action.
    Principal and agent —Liability.—A railway company is liable •for injuries resulting from the negligence of contractors and their servants.

      Appeal from Tarrant county. Opinion by Watts, J.
    Statement.— December 22, 1882, appellees brought this suit against appellant to recover the land described in the petition, and for damages resulting to the land and grow», ing wheat by reason of the trespass. By second or original petition they pretermitted the question of title and set up and sought to recover for the same items of damage first asserted, to wit: Damage to wheat, $150; time and labor in repairing fence, $30; damage to land by putting stone upon it, $100. Appellees, by trial amendment, also set up and claimed $500 as exemplary damages, etc. Appellant excepted to the amendment on the ground that a new cause of action was set up by it, and because the court had no jurisdiction; and, among other pleas, that the appellant had secured by deed from appellees the right of way across their land, and that the road was constructed by contractors over which the company bad no control. This plea was stricken out on exception, and appellant’s exceptions to the trial amendment were overruled.
    Cause tried May 3,1883, without jury, and judgment rendered against appellant for $1Y0.
   Opinion.— By the amended petition, this suit had for its object the trial of the title to the land described in the same, and also to recover damages for injuries to appellant’s crop, as well as the land, resulting from the trespass. In a subsequent amendment, appellees pretermitted the question of title, but relied upon the allegations of damages resulting from the trespass, and sought a recovery therefor. This change in the pleading was not the assertion of a new cause. of action, which would have authorized the court to adjudge the costs to that date against the appellees.

In the trial amendment it was alleged that appellant, through its servants and agents, wilfully and maliciously and in utter disregard of appellee’s rights, and against their protests, pulled down and removed their fence, and in divers ways harassed and vexed appellees, to their damage in the sum of §500 exemplary damages in addition to actual damages. The effect of the demurrer was to admit the truth of these allegations; that is, for the purpose of testing the sufficiency of the pleading to which the demurrer Avas directed. Thus tested, the allegations Avere sufficient to authorize a recovery for exemplary damages; and in cases where such recovery may be had, the amount to be awarded must be determined from the facts and circumstances of the case. Court did not err in overruling the demurrer to appellant’s trial amendment. As appellees had conveyed the right of Avay to appellant, they thereby consented to a proper construction of the road-bed, and will be held to have waived all damages resulting from such construction. In fact, no claim is asserted by them for any other damages than for an improper construction and destruction of their fence, etc.

Appellant’s ansAver, to Avhich the demurrer was sustained, sought to avoid.liability for the damages claimed, because the road was constructed across appellees’ land by Roach & Tearney, independent contractors, for whose negligence, it is claimed, the appellants Avere not liable. In H. & G. N. R’y Co. v. Header, 50 Tex., 77, the converse of this prop osition is held to be the law.

In our opinion the court did not err in sustaining the demurrer to that part of appellant’s answer.

Another objection urged to the judgment is that it is not supported b^y the evidence. This objection is not sustained by the record. There was no motion made to dismiss the case after the evidence was in, on the ground of improper allegations for the purpose of imposing upon the jurisdic1 tion of the court; nor Avas that question otherAvise made in the loAver court, so as to require its consideration here.

Judgment affirmed.


text:
    Carter Bros. v. Younger Bros.
    (No. 906.)
    Attachment.— Affidavit for two distinct causes in one, fatal.
    Appeal from Montague county. Opinion by Delaney, J.
    Statement.— This suit was upon a mercantile account. Plaintiffs, Carter Bros., by their agent made affidavit reciting that the defendants “have disposed of their property, in whole or in part, with the intent to defraud their creditors, and that they are about to convert their property into money for the purpose of placing it beyond the reach of their creditors,” They gave bond, and attachment issued and was levied on property of defendants. At the return term, on motion, the court quashed the attachment and rendered judgment against defendants in personam. Plaintiffs appeal, assigning this ruling as error.
   Opinion.— Plaintiffs set forth in their affidavit two causes for attachment, which are not only distinct, but inconsistent; both cannot be true.

If the defendants had disposed of their property it was beyond their reach; hence they could not convert it into money in order to defraud their creditors. This affidavit is similar to the one in Dunnenbaum v. Schram, 59 Tex., 281.

Judgment affirmed.


text:
    Leopold Loeb v. Leon & H. Blum.
    (No. 4677.)
    Action.— The mere fact that goods are In the custody of the law is not sufficient to sustain an action for damages for the levy upon and sale of such goods under execution.
    Debtor and creditor.— Assignment law of 1879 permits debtor in good faith to make a valid transfer of his property to one creditor in payment of a debt to the exclusion of other creditors.

      Appeal from Limestone county. Opinion by Delaney, J.
    Statement.— This suit was brought January 28, 1880 (pleading amended November 1,1881), by appellant against appellees to recover damages for the seizure of a stock of. goods by the latter, which were claimed by the former. It appears that in November, 1879, one J. H. Loeb (brother of plaintiff) transferred to plaintiff his entire stock of goods in the town of Mexia. The transfer was made to pay an old debt. Plaintiff, who lived in New Orleans, left the goods in the hands of a former clerk of J. H. Loeb, and directed the clerk to let J. H. Loeb have whatever he needed out of the store. Soon after this H. B. Claflin & Go. 'levied an attachment upon the entire stock for a claim which they had against J. H. Loeb for the sum of $3,770. Appellant entered into an agreement with Claflin & Co. that he would hold the goods as receiver to abide the result of the 'suit. Attachment was dismissed and goods replaced in the store-house, but suit proceeded. January 19, 1880, an attachment issued from the county court of Limestone county in favor of appellant upon the goods in suit of Greenleve, Block & Co. v. J. H. Loeb. Appellant filed his bond and affidavit and retained the goods. On January 27,1880, Leon & H. Blum levied an execution upon a portion of the goods valued at $1,700, which were sold under execution and proceeds appropriated by L. & H. Blum.
    This suit was brought to recover for the appropriation of the goods; damages laid at $5,000. Tried March 8, 1882; verdict and judgment for defendants. The defense set up was fraud in the transfer of the goods.
   Opinion.— The first question presented by counsel arises upon the facts as follows: Greenleve, Block & Co. levied a writ of attachment upon the goods, and appellant filed his affidavit and bond and retained the property. Shortly afterwards appellees seized the goods, sold them under execution against J. H. Loeb and appropriated the proceeds. These facts were alleged by the plaintiff as one of the grounds of his claim for damages against defendants. The court sustained a special exception to this part of the petition and appellant presents that ruling as error.

The court did not err in the ruling complained of. If the goods, while in his possession, were in the custody of the law, it was his duty to maintain that custody and keep the goods. Roberts v. Dunn, 71 Ill., 46. It is a mistake to suppose that appellant could lawfully claim damages of L. & H. Blum merely because the latter may have wrongfully taken goods which were in the custody of the law. If L. & H. Blum wrongfully took plaintiff’s goods the latter had his remedy, because the goods were his, but not because they were in the custody of the law. Appellant could easily have retained the goods; and the mere fact, therefore, that they were taken out of his possession is not one of which he can complain. But we think there was error- in the charge given by the court in this; That an insolvent debtor cannot make a valid transfer of his property to one creditor, in payment of a debt, to the exclusion of other creditors, though it be done in entire good faith. Wagon Works v. Tidball, 59 Tex., 291; Greenleve, Block & Co. v. Blum, id., 124. We think the evidence in the record is sufficient to sustain the verdict and judgment; but whether the jury rendered their verdict on the evidence or charge we cannot say; therefore the judgment should be reversed and the cause remanded.


text:
    W. A. Glenn et al. v. A. H. Ashcroft.
    (No. 910.)
    Practice—Evidence — Minority.— It is not error to refuse to admit evidence of the minority of a party, to defeat the defense of limitation, when not asserted by the pleadings.
    Evidence — Records, how proved.— By original minute book or certified copy.
    Notary public.—Abbreviation of “N. P,” sufficient when appended to the signature of one who appears to be acting in an official capacity.

      Appeal from Cooke county. Opinion by Watts, J.
    Statement.— This action of trespass to try title was brought by appellants, tp which appellee, in addition to the plea of “not guilty,” interposed the defense of five and ten years’ limitation. The only reply to this defense was a special denial, which had no other effect than if the reply had been by general denial. It is claimed that the court erred in refusing to admit evidence as-to the minority of appellants, so as to defeat the defense of limitation. This evidence was excluded because the appellants had not set up their non-age as a reply to the defense of limitation, and there was no error in this ruling. The disability should have been asserted by them. It is like a plea of confession and avoidance. Unless asserted by the pleadings it cannot be proved. Childress v. Grim, 57 Tex., 59.
   Opinion.— It is objected that the court admitted as evidence the minute book of the county court in which the judgment in the case of J. A. Chuck v. J. J. Glenn ivas entered. The point made is that the judgment could only be established by a certified copy, and that the original minute book was not admissible. The statute which authorizes such certified copies to be used in evidence provides that they can only be used where the records themselves would be admissible. -The error here complained of is not well assigned. Evitts v. Roth, 61 Tex., 81. The several objections made to the admission of the execution, venditioni exponas and sheriff’s deed are not well taken. It appears with sufficient certainty that the execution was levied upon the land and returned for the want of time to make the sale; that the venditioni exponas wTas issued, and the sale made by virtue of it. These facts are shown by the return indorsed upon the execution, as well as that indorsed upon the venditioni exponas.

It was also objected that the court erred in admitting as evidence the certified copy of 'the deed from Weaver to appellee. But the parties had agreed that copies might be used, subject to the same objections as might be made to the originals. Also that the certificate of acknowledgment was defective, as it did not disclose the official character of the officer who made the same. The certificate was signed W. W. Foreman, K". P., Cooke county. This deed was filed and recorded in Cooke county, and it is supposed that the clerk was acquainted with the official character of the officer or he would not have accepted, filed and recorded the deed. By standard authors the abbreviation would be construed to mean notary public, when used in that connection. See Webster’s Dictionary; Bouvier’s Law ' Dictionary; McDonald v. Morgan, 27 Tex., 503. Among other officers authorized to take acknowledgments of deeds, etc., are notaries public, and in this case the words 61W. W. Foreman, M. P., Cooke county,” are sufficient. Our conclusion is that there is no error in the judgment.

Affirmed.^


text:
    John Bouvet v. Pearce Woodward.
    (No. 940.)
    Vendee, sued for purchase money, cannot object to deed to him as evidence, bec-ause made by an attorney in fact and no power shown. Principal ratifies the deed by suing for purchase money.
    Appeal from Wise county. Opinion by Walker, J.
   The plaintiff’s petition alleged that the defendant, “for a valuable consideration, made, executed and delivered” to him the two promissory notes sued on; that they are each made payable to him “or order; ” and alleges defendant’s liability to pay him the amounts specified in them bjr reason of defendant’s promises recited in said notes, and alleges defendant’s default to make such payment, with a prayer for judgment on the notes and for the foreclosure of the vendor’s lien on the land described in the petition. This petition conforms sufficiently to the rule of pleading in suits on promissory notes laid down in Jennings v. Moss, 4 Tex., 452, “ that to show a right of action the plaintiff must .allege title in himself and some act of the defendant creating a legal liability on his part,” and “that the-defendant’s liability must be shown by averments.” It is urged by the appellant that the failure to allege that the plaintiff was the legal holder and owner of the notes sued on is fatal to the sufficiency of the petition ; and the brief of counsel cites several cases decided by our supreme court to support the proposition. But the cases referred to do not maintain the proposition contended for, as applied to the facts alleged in this petition. The allegations made by plaintiff show that for a valuable consideration defendant made, executed and delivered to him said notes, and made them payable on their face to himself or their order. The second assignment of error is not well taken. Objection was made as to the admissibility in evidence of a deed of conveyance to land to John Bouvet, signed Pearce Woodward, by Granger Salmon, attorney in fact, without proof first being made of any written power ■ of attorney under which said attorney in fact acted in making said deed. See Neil v. Reese, 5 Tex., 33.

Ratification by the principal, Pearce Woodward, of the act of Salmon would have the effect to validate the deed as a conveyance of title, though the latter may have acted without authoritj; and if the principal makes the contract his own by availing himself of the benefits of it, he is liable in like manner as if he had personally made the contract. Henderson v. R. R. Co., 17 Tex., 560. The plaintiff in this case ratified the deed by the adoption thereof and suing on the notes to foreclose vendor’s lien, and then tendering the deed in evidence to establish the sale and conveyance made by Salmon, and thereby he is estopped from denying the authority of Salmon.

There being no error, the judgment is affirmed.


text:
    W. A. Roberson v. A. C. Roberson.
    Divorce — Evidence.— Evidence that does not show that the abandonment was not caused, procured or consented to by husband is insufficient,
    Appeal from Brown county. Opinion bji Delaney, J.
    Statement.— This suit was brought by appellant against appellee, March 1, 1881. lie alleged that he and defendant, Amanda C. Roberson, were married in Kentucky in 1844; that they lived together in that state until the year 1868, when she wilfully, voluntarily and without any cause or provocation abandoned his bed and board, and had never returned. He also avers that she left him with the intention of perpetual abandonment.
    A general denial was filed by defendant March 27,1882. On same day trial was had by the court without a jury and judgment rendered for defendant. Plaintiff appealed.
    On the trial plaintiff introduced John H. Roberson, the only witness. He testified that plaintiff and defendant were married in Kentucky, thirty years ago, and lived together until 1869, when defendant left and went to Memphis, Tennessee, where she remained until 1872, when she went to the house of witness in the state of Missouri, where she remained a short time. She then went to" California, where she has been ever since. Witness states that plaintiff had a comfortable home, and he does not know why defendant left plaintiff.
    Plaintiff had resided in Brown.• county several years before the filing of the suit. This is all the evidence. Plaintiff assigns as error the judgment of the court.
   Opinion.— In our opinion there is no error in the judgment of the court below. Every fact attested by the witness in this case might be true, and yet the defendant might have been driven from her home by the plaintiff, or at least she might have left it with his consent. In accordance with the rule announced in McGowan v. McGowan, 52 Tex., 567, the plaintiff should have produced at least some reasonable measure of proof that he “ neither caused nor procured nor consented to the separation.” Plaintiff’s evidence falls far short of this.

Judgment affirmed.


text:
    H. & T. C. R. R. Co. v. John Henry Boozer.
    (No. 850.)
    Damages -r-Negligence." It is a general rule that between stations and public crossings, and upon the yards, the track or tracks belong exclusively to the company, and all persons who walk, ride or drive thereon are, strictly speaking, trespassers; and if they go there at the sufferance of or by permission of the company, it will be considered that they are there subject to the risks incident to the place; and if while there they are injured by the company’s trains, no recovery can be had for such injury unless it resulted from gross negligence upon the part of the agents or servants of the company.
    Measure of damages.— To authorize a recovery in such case as that stated, the negligence on the part of the company must be shown to be so gross that, had death ensued, the company would have been liable for exemplary damages.
    Inclosure of roads and railways.— The statutes which impose upon railway companies the duty of fencing their roads does not require them to inclose the grounds about their freight and passenger depots. '
    Trespassers.—-Trespassers upon the yards of a railway company are charged with the knowledge of present and continuous danger, and are required to exercise the greatest care and prudence to protect themselves from injury.
    Negligence—Evidence.— While age or physical condition of the injured party does not, ordinarily, affect the degree of care required of those operating locomotives, contributory negligence not entering into the question, still in the case of a child, or person deprived of sight or hearing, which was known to those operating the engine, and known by them to be on, or about to go on, the track, a greater degree of care is required than in the case of ordinary persons.

      Appeal from Grayson county. Opinion by Watts, J.
    Statement.—Appellee, by next friend, brought this suit against appellant, March 2, 1880, to recover §20,000 damages for injuries received by him while crossing appellant’s railroad track at the city of Denison, November 7,1879, by which he lost a leg and received other injuries. Appellee answered September 16, 1880, by general denial, and also • that the injuries were directly caused by the negligence of the appellee. The cause was tried April 28, 1883, and a verdict returned and judgment rendered against the appellant for the sum of §6,125. The errors deemed essential are stated in the opinion.
   Opinion.-—■ At the time of the accident appellee was about ten jrears old, and a bright, intelligent boy for his age. He was well acquainted with the company’s yards and sa3Ts be knew that it was dangerous to go there; that in crossing the yard he had theretofore been on his guard and watched for moving trains, but at the time he was injured that he was looking down the path and thinking about getting home. That he heard the moving train but supposed that it was on the Missouri Pacific track, and therefore he did not look up to ascertain its whereabouts. It seems his mother had cautioned him about the danger of going on the 37ard or across the tracks.

At the point where the accident occurred there is an embankment of considerable height, and it is stated bj7 some of the witnesses that there was a path leading across the track, and that those living on the east side of the company’s road had for years been in the habit of crossing there in going to the business portion of the city of Denison. In the direction from which he approached the embankment the road and yard were unobstructed, and trains moving or standing upon the same could easily have been seen. Neither the bell was being rung nor the whistle sounded, and the engineer and fireman were watching the rear for signals. The engineer states that he was watching the front for obstructions as well as the rear for signals, but neither the engineer nor fireman saw the boy.

The general rule is that between stations and public crossings, and upon the yards or 'tracks 'belonging exclusively to the companjq all persons who are found therein are, strictly speaking, trespassers, and if they go there at the sufferance or by the permission of the company, it will be considered that they are there subject to the risks incident to the place; and if injured by the company’s trains, no recovery can be had for such injury, unless it resulted from gross negligence upon the part of the agents or servants of the company. The degree of negligence which would authorize a recovery in such case is not easily defined, however; it must.be so gross that, if death had ensued, the company would be liable for exemplary damages under section 26, article 16, of the constitution. H. & T. C. R’y Co. v. Richards, 59 Tex., 375, and authorities there cited.

It has been frequently held in those states where, as with us, the statute imposes upon railroad companies the duty of fencing their roads, that this does not require them to inclose the grounds about their freight and passenger depots, as these grounds are required to be kept open for the convenience of the public, and also that the space used for switches and side tracks is not required to be inclosed. Pierce on Eailroads, page 421 and notes.

Therefore, those who trespass upon such yards must be held to do so with the knowledge that they thereby .place themselves in a position of great danger, where they are required to exercise the greatest care and prudence to protect themselves from injury, and where they are not in a position that entitles them to any special or particular care upon the part of the company’s servants. Baltimore & Ohio R. R. Co. v. Depew, Am. & Eng. Railroad Cases, vol. 12, part 1.

The degree of care and prudence required of those operating locomotive engines is ordinarily not affected by the age or physical condition of the party injured, when not involving the question of contributory negligence. When, however, a child, or a person deprived of sight or hearing, which was known to those operating the engine, is by them seen upon the track, or known to be there or about going upon the same, then a greater degree of prudence would be required than if it was a person of full age and possessed of all the human senses. In the latter case it might be assumed that such person would leave the track and avoid the danger, while that assumption might not be justified in the former case.

The evidence disclosed by the record does not show such gross negligence upon the part of the servants of the company as would authorize the recovery.

To entitle the appellee to a recovery the burden was upon him to establish, by competent evidence, such gross negligence upon the part of those in charge of and operating the engine, and having failed to do this it follows that the verdict is not supported by the evidence.

Proceeding, then, to the consideration of the objection that, upon the issue of contributory negligence, the verdict is not supported by, but is against the evidence. As to those who have "not reached maturity, the rule as to the degree of prudence and care required of them, so as to avoid the effect of contributing to the injury by their own negligence, is dependent upon the age, intelligence and experience of the party7, and the circumstances attending the evidence. Dowling v. N. Y. C. & H. R. R. Co., Am. & Eng. Railroad Cases, vol. 12, page 83; R. R. Co. v. Street, 17 Wall., 664; Thompson on Negligence, secs. 1181-82.

Appellee was, at the time of the injury, about ten yrnars of age, and unusually intelligent for his age; and while he knew it was dangerous to cross the yard, ymt he says ho made his way up the embankment and upon the track with his eyes fixed upon the ground and his thoughts upon home, and failed to use his senses in detecting the approaching train, notwithstanding he heard it moving. Obviously, one of sufficient intelligence and experience to understand the danger, who thus exposes himself to it, without making any use of his senses to avoid the injury, must be considered as having contributed directly to it, and hence cannot recover. G., H. & S. A. R. Co. v. Bracken, 59 Tex., 74.

Our conclusion is that the judgment ought to be reversed and the cause remanded.


text:
    R. K. Chatham v. S. D. May.
    (No. 4042.)
    Practice.— Objection to a judgment should be specific enough to point out the particular error complained of.
    Appeal from Coryell county. Opinion by Walker, J.
    Statement.— This was a suit to try the right of property to a certain gin-house, instituted by R. K. Chatham against S. D. May. The parties, with the approval of the judge, submit an agreed statement of the record, from which it appears that the plaintiff, S. D. May, brought this suit against one J. Lynn for the possession of the following described property, viz.: “ One certain frame building, twenty-six feet by fifty-six feet, two stories high, and known as Lynn’s ‘gin-house,’ situated in Coryell county, Texas, and about two hundred yards west of south of Weston’s mill.”
    The plaintiff caused the property to be levied on by writ of sequestration on the 28th of July, 1880. The sheriff valued the same at S300. On the 8th of November, 1880, R. K. Chatham also filed oath and claim-bond as claimant of the property, and received the property and still holds the same.
    The claimant tendered as the issue, which was accepted and acted upon by the court, whether he was entitled to recover by virtue of a certain deed of trust from J. Lynn to E. K. Chatham & Co., and a deed made to E. IT. Chat-ham under the same. The cause was tried by the court without a jury. Judgment was rendered for the plaintiff, S. D. Majr, and the claimant appealed and assigned as error: 1st. That the court erred in holding the deed of trust from Jose Lynn to E. K. Chatham & Co. void for want of a sufficient description of the property in controversy in this suit. 2d. The court erred in rendering judgment for the plaintiff for the property in controversy „in this suit.
   Opinion.— The first ground assigned as error is not supported by the record, as it does not appear from the judgment of the court or otherwise upon what special or particular ground the court rendered its judgment.

The only question, therefore, presented is whether the evidence sustains the judgment.

The burden of proof was on the claimant to show that he was entitled to the right and possession of the gin-house, as against the plaintiff’s claim of ownership which he asserted by virtue of a decree of the district court in favor of Eoss & Co. against said Lynn, foreclosing a lien on said building, order of sale under said judgment, sale made under that order, and purchase by the plaintiff, S. D. Ma}T, February 17, 1880. Also a judgment which said plaintiff introduced in evidence, rendered by the district court of Coryell county, in cause Flo. 817, which gives May his writ of possession of said gin-house against Lynn. It does not appear from the statement of facts that Barrett was ever authorized to act as agent by E. IT. Chatham, trustee, or that he ever sold said property according to the terms and conditions prescribed by the deed of trust. Upon these facts it is clear that no other judgment could properly have been rendered than one for the plaintiff, May. The judgment ought to be affirmed.

Affirmed.