text:
    A. C. McCartney v. Wm. Martin.
    (Case No. 3443.)
    1. Pleadings.— A defense defectively set forth should be' specially excepted to if a more specific averment is needful for the maintenance of the plaintiff’s rights. 32 Tex., 349; 28 Tex., 611; 6 Tex., 90; 17 Tex., 658.
    2. Evidence.— New affirmative matter of avoidance or defense cannot be given in evidence under a general or special traverse, but must be specially pleaded.
    8. Practice.— Admission of irrelevant and immaterial testimony upon the part of the defense will not warrant the introduction in rebuttal of equally irrelevant and immaterial testimony on the part of the plaintiff, and its -exclusion by the court is not erroneous. 3 Tex., 93; 17 Tex., 318.
    4. Newly discovered evidence.— It is not error to refuse anew trial when applied for on the ground of newly discovered evidence which’ is merely cumulative.
    5. New trial.—To entitle one to a new trial on the ground of newly discovered evidence it must appear that the testimony is material and would probably change the result; that the evidence came to the party’s knowledge after the trial, and that it was not for want of diligence on his part that it was not sooner obtained. 30 Tex., 33; 3 Tex., 49.
    6. Conflict of testimony.— The judgment of the district court will not be reversed for mere conflict of testimony, even though the appellate court might, from the evidence, have arrived at a different conclusion. 33 Tex., 3S8; id., 641; 51 Tex., 389.
    Appeal from Ellis. Tried below before the Hon. Hat. M. Burford.
    McCartney sued Martin in the district court of Ellis county, in December, 1875, upon a note dated 15th January, 1875, for §150.14, payable to him and executed by Martin. He alleges that it was given for part of the purchase money of a tract of land sold by him to Martin, and as a renewal of a former note for the purchase money of the same land, ' dated 28th July, 1871, which Martin had executed to him. He prays for judgment for his debt and for foreclosure of the vendor’s lien on the land.
    The defendant answered, excepting generally to the plaintiff’s petition, and denying its allegations.
    In an amended answer, defendant avers that he signed the renewed note sued on, relying upon the fraudulent representations of McCartney, who made miscalculations of interest and credits; and that the original note was given for the purchase money of two tracts of land; one of eighty acres, and a small tract of timbered land; that McCartney, wishing to retain a half interest in the timbered tract, promised to credit the note with §20, which he had not done. He claims that a further credit for §25 should have been allowed thereon, which he paid McCartney in September, 1871.
    And further answering, “he denies that said note is the property of McCartney, but was sold "by him to Yalentine Martin on the 3d March, 1873, who, by firm contract made at that time between said Martin and McCartney, became the owner of said note under a promise of said McCartney to hand it to him or send it to him by the first opportunity. Defendant avers that he was notified by the parties to said contract of said transfer, to which he acquiesced, and subsequently satisfied said note in full, so that he is now the owner of the same.” Defendant annexed to his answer the bond from McCartney to him, to make title to the land mentioned, and prays that a decree may be made to make him a title to the land.
    To this answer the plaintiff filed a general exception, but there is no order of the cpurt thereon, nor anything in the record to show that it ever was called to the attention of the court, or that it was acted on.
    Valentine Martin asked leave to intervene in the suit, setting up his purchase of the note from McCartney, and adopting William Martin’s answer, but his petition was refused.
    The case was submitted to the judge (no jury being demanded) on 13th May, 1876. The defendant’s exceptions to the petition were overruled, and judgment was rendered for the defendant, and that he recover the land mentioned, divesting McCartney’s title and vesting the title to the same in defendant Martin.
    The defendant moved for a new trial on the following grounds:
    1. For the discovery of new and material testimony; that W. H. Getzendaner can prove that the original note was deposited with Ferris & Getzendaner for money loaned before the alleged purchase by Martin.
    2. He can prove he never received any consideration- on the purchase of the note by Valentine Martin, and can prove by Clark, Lacy & Lacy, that Valentine Martin, after the pretended sale of the horses to him, had gathered and sold horses of the stock; that he can prove by Ike Pratt and Hugh Huskins that the horses could not be found; that the witnesses are absent, and he cannot .procure their affidavits.
    3. That he was surprised by the ruling of the court in admitting proof of the purchase by Martin of a previous note which had been taken up and satisfied.
    4. Because the answer set out no contract for the sale of horses, and he had no notice that such would be relied on.
    5. That the court erred in giving judgment for defendant.

      The affidavit of McCartney, accompanying his motion for a new trial, states that he never assigned the note or the original note for which it was given to Yal. Martin; that at the time of the pretended purchase of it by Yal. Martin, it was deposited with Ferris & Getzendaner for loaned money, and remained with them till the new note was taken, and has re-
    mained under their control ever since. That it was not till about a year after the contract was made with Yal. Martin that Martin said he wanted the note, and then affiant told him he could not let him have it; that it was deposited with Ferris & Getzendaner; that he believes he can make the proof on the first and second grounds stated in his motion by the witnesses, and that he did not know the materiality of it on the trial.
    Three days after the rendition of the judgment, Ferris & Getzendaner filed a motion in the case, setting up that the suit was instituted for their benefit; that the note was deposited with them for money loaned; that the failure to indorse it to them was a mistake; that they are the beneficiaries of the note, and McCartney had no right to sell it. That they had no knowledge of McCartney’s horse trade with Yal. Martin; that McCartney is insolvent; and they ask that the ' case be reviewed, a new trial granted, and that they be permitted to set up their equitable title to the note.
    The court overruled this application of Ferris & Getzendaner, and refused to grant a new trial, and the plaintiffs appealed.
    . The assignments of error are as follows:
    1. The court erred in permitting the defendant to prove, over the objection of plaintiff, that Yal. Martin purchased the note executed by Wm. Martin to plaintiffs July 28,1871, for $140, which was the original note and the consideration of the note sued, and that Martin paid for said note by the sale and delivery of a stock of horses in March, 1873, and that since the.bringing of the suit Martin made full payment and satisfaction of the note sued on to said Yal. Martin, for the reasons set forth in plaintiff’s bill of exceptions.

      2. The court erred in permitting defendant to prove that the plaintiff authorized and directed defendant to pay the amount due on said note to Yal. Martin, for the reason assigned in plaintiff’s bill of exceptions.
    3. The court erred in not permitting plaintiff to introduce evidence in rebuttal that he did not receive the horses, nor any of them, and that Yal. Martin failed on his part in the horse contract.
    4. The court erred in overruling plaintiff’s motion for a new trial.
    5. The court erred in rendering judgment for defendant and against the plaintiff.
    6. The court erred in rendering judgment vesting title to the land in defendant.

      Ferris & Rainey, for appellant.

      F. P. Anderson & Bro., for appellee.
   Quinan, J.

I. Objection was made to the admissibility of the testimony complained of in the first assignment of error on three grounds: (1) That there was no allegation in the answer that the original note was sold and assigned to Yal. Martin; (2) nor averment that the sale to Martin was for a valuable consideration, or what the consideration was, and plaintiff had no notice of the horse trade relied on; (3) that there is no definite allegation of payment in defendant’s answer.

We do not think these objections tenable. The answer is certainly indefinite and vague, but it was not specially excepted to. It is true the plaintiff filed a general demurrer to it, but no action of the court was had upon it, and we must assume that it was waived. Sayles’ Pleading, 86, and the cases cited.

We think it sufficient to warrant the introduction of the proof offered. It alleged that the note was not the property of McCartney, but was sold by him to Yal. Martin on the 3d of March, 1873, who, by firm contract made at that time between said Martin and McCartney, became the owner of said note under a promise from McCartney to hand it to him the first opportunity. That he was notified by the parties to said contract ot' said transfer, to which he acquiesced, and subsequently satisfied said note in full.”

If a more specific averment of the defendant’s defense were needful for the maintenance of the plaintiff’s right, he should have excepted specially to this answer. A defense defectively set forth should be excepted to specially. May v. Taylor, 22 Tex., 349; Williams v. Warnell, 28 Tex., 611.

In Wells v. Fairbanks, 5 Tex., 583, where the plea was, in general terms, “ that the debt had been paid off and discharged,” and the evidence offered was that both parties had stated to witness that they had a settlement, and that Wells, the defendant’s intestate, owed the plaintiff $50, and this evidence being objected to by the plaintiff, was excluded by the court, on appeal, the rejection of this testimony was held to be error. Mr. Justice Wheeler says: “The plea is expressed in very general terms. Mo exception, however, was taken to its legal sufficiency. The subject-matter of it constituted a valid defense, to the action, and if the plaintiff would have taken advantage of any defectiveness in the form or manner of stating it he should have done so by exceptions.” Holliman v. Rogers, 6 Tex., 90; Marley v. McAnelly, 17 Tex., 658.

II. The ground of the second assignment of errors, as stated in the bill of exceptions, is that there was no allegation in the defendant’s answer that “plaintiff had authorized or directed such payment,” to warrant the introduction of proof of that fact.

What we have said in response to the first assignment of errors is sufficient answer to this objection.

Besides, we are of opinion that the allegation in the answer, that the parties notified-defendant of the transfer of the note to Yal. Martin; that William Martin acquiesced therein; that the note was not the property of McCartney, but of Yal. Martin, and that he had fully satisfied the note to Martin, was in effect equivalent to an averment that McCartney had ordered payment to be made of the note to Yal. Martin.

III. The third assignment of error, that the court excluded plaintiff’s testimony to prove “ that he did not receive the horses, nor any of them, and that Val. Martin failed on, his part in the horse contract,” is equally untenable.

1. There was no allegation under which that proof could have been admitted. “Repeated decisions of this court,” says Mr. Justice Wheeler, in Marley v. McAnelly, 17 Tex., 660, “have settled beyond question that new affirmative matter of avoidance or defense cannot be given in evidence under a general or special traverse, but must be specially pleaded.”

2. And the testimony offered was irrelevant and immaterial. As we have seen, the defendant pleaded “ that the note had been transferred by McCartney to Val. Martin by a firm contract; that the parties had notified him of the fact; that he had acquiesced in that transfer, and had discharged and satisfied the debt to Val. Martin.” He swore on the trial that McCartney directed him to pay the amount owing upon the note to Val. Martin, and that he had done so. It was, therefore, an immaterial issue whether Val. Martin had ever complied with his agreement with McCartney or not. It was not his affair whether McCartney had received full or any consideration for the transfer of the debt. He was notified of the transfer, acquiesced in it, was directed to pay the amount to Val. Martin, and did so. And as the facts which it was attempted to prove could have had no effect upon his legal rights, it was no error to reject the testimony offered to prove them. Nor did the admission of irrelevant unnecessary testimony upon the part of the defense in regard to the horse trade between McCartney and Val. Martin warrant the introduction in rebuttal of equally irrelevant and immaterial testimony on the plaintiff’s part of Val. Martin’s failure to deliver the horses. Love v. Barbour, 17 Tex., 318; Swenson v. Walker, 3 Tex., 93.

IV. The fourth assignment of error, that the court erred in overruling plaintiff’s motion for a new trial, so far as it related to the insufficiency of the answer, or is based upon alleged errors of the court in the reception or rejection of testimony, has already been considered.

So far as a new trial is sought on the ground of newly discovered testimony, the application is manifestly insufficient. The testimony was immaterial. Nothing is proposed to be proved, except in relation to the transfer of the note by McCartney, and the failure of Yal. Martin to perform his part of the horse trade. As to the transfer of the note the evidence would have been merely cumulative. McCartney was sworn on the trial, and testified to the transaction with Gfetzendaner, and Getzendaner could have testified to nothing: more. In relation to the failure of Yal. Martin to comply with his contract, the testimony proposed to be proved by the witnesses would, as we have said, been immaterial and simply cumulative.

And manifestly there was no sufficient diligence shown why the proof, had he thought it necessary to his case, was not produced upon the trial. There is no affidavit of surprise at the rulings of the court, nor, if there had been, is there any good cause perceived why the parties should have been surprised. The answer sufficiently -indicated the defense.

A new trial will not be granted upon the ground of newly discovered evidence, to admit merely cumulative evidence, nor unless it is shown that the evidence came to the party’s knowledge since the trial, and that it was not from want of diligence on his part that it was not sooner obtained (Frizzel v. Johnson, 30 Tex., 36), and it must appear that the testimony is material, and would probably change the result. Madden v. Shapard, 3 Tex., 49.

The fifth and sixth assignments of error go to the sufficiency of the testimony to sustain the judgment of the court.

This statement of facts presents the very frequently recurring case of a direct conflict of testimony. It was quite as positive for the defendant as for the plaintiff, and had the judgment of the court been for the plaintiff instead of for the defendant, we could not say that it would have been unsupported by the testimony.

[Opinion delivered May 3, 1880.]

It is unnecessary to recapitulate the evidence. It is sufficient to say that the defendant’s testimony fully substantiates the allegations of his answer. The judge trying the cause, and whose business it was'to weigh the testimony and judge of the credibility of the witnesses, was satisfied with it. And though we might have arrived ata different conclusion from that formed by him, yet we cannot say that his judgment is clearly wrong. And in such case the general rule is that his judgment will not be disturbed. Baldridge, v. Gordon, 24 Tex., 288; Anderson v. Anderson, 23 Tex., 641; Jordan v. Imthurn, 51 Tex., 289.

We are of opinion that there is no error in the judgment, and that it ought to be affirmed, and so award.

Affibmed.


source: Caselaw Access Project

author: Walked, P. J.

license: Public Domain

text:
    M. M. Fondren et al. v. Josiah Leake.
    (Case No. 3858.)
    1. Reconvention—Damages.— In a suit to foreclose the vendor’s lien by one holding purcliase money notes for a steam mill, and the land on which it is situated, damages to the property occasioned by the bursting of the mill boiler, caused by the plaintiff muddying the water supplying the mill, by maliciously building hog pens on his own land adjoining the mill, and keeping hogs on the stream supplying the mill with water, cannot be pleaded by the defendant in reconvention, even though the plaintiff be alleged to be insolvent, and unable to respond in damages for his wrongful or malicious acts.
    2. Failure of consideration.—The defendant cannot plead failure of consideration in suit for purchase money, on account of damage to the property occasioned by the malicious acts of the plaintiff committed after the sale; and such is the case where the plaintiff is insolvent.
    Appeal from Ellis. Tried below before the Hon. Zimri Hunt.
    The opinion states the facts.

      Amsi Bradshaw, for appellants.

      Ferris c& Rainey, for appellee.
   Walked, P. J.

Josiah Leake, the appellee, brought this

suit on several promissory notes given by the appellants for the purchase price of a certain mill and machinery and about two acres of land on which the same was situated. The suit was brought by said plaintiff, alleging that he is the legal holder and owner of ■ the notes; that he sues for the use and benefit of E. M. Hoge, Davney Lancaster and B. B. and J. B. Tyus; that said notes are secured by the vendor’s lien on the said premises, which the plaintiff and his wife sold and conveyed to defendant, reserving said lien to secure the payment of the notes aforesaid. Admitting certain credits, plaintiff claimed balance due amounting to $980, with interest thereon. The defendant filed a plea, termed in the pleadings and in the assignment of errors a plea in abatement, alleging in substance that B. B. and J. B. Tyus hold plaintiff’s note for the sum of $1,415.50, given for the purchase money of the tract of land on which said mill is situated; that said note is unpaid; that said plaintiff is insolvent; that said B. B. and J. B. Tyus made to the plaintiff their bond for title to said land upon the payment of said note of $1,415.50.

There are other allegations in said plea made, to the effect that the said usees, Hoge, Lancaster, B. B. and J. B. Tyus, have no interest in or right to bring this suit in their names, and that the defendants are informed and believe that E. M.. Hoge and D. Lancaster each have a note delivered to them by plaintiff which is barred by the statute of limitations. The entire plea consists of matters quite insufficient and irrelevant. The plea is not sworn to, and as a plea in abatement, for that reason alone, would be treated as a nullity; but it is not properly to be regarded as such a plea, but for whatever it is worth it is a plea in bar, but is plainly insufficient. The plea did not allege that B. B. and J. B. Tyus had not conveyed the land referred to to the plaintiff, nor whether the supposed lien, if any was retained, was superior to that of the plaintiffs, nor that the defendant purchased without notice and knowledge of the existence of such lien; nor doés he offer to return the possession of the premises, or otherwise to cancel the contract, or account for the use of the property. Lemon v. Hanley, 28 Tex., 222; Cooper v. Singleton, 19 Tex., 260; Brock v. Southwick, 10 Tex., 65; Demaret v. Bennett, 29 Tex., 267; Cook v. Jackson, 20 Tex., 211.

The appellant assigns as error the overruling of said plea in abatement. There was no error; the plea was substantially bad.

The defendant pleaded in reconvention damages against the plaintiff, claiming as such $600, and a reduction of $1,000 for partial failure of consideration in the notes. The facts on which the claim is based consist in the alleged malicious and fraudulent construction of a hog pen by the plaintiff on the plaintiff’s own land across the spring branch which is necessary to supply the mill and machinery with water, and without which the mill is worthless in that locality. That the plaintiff put bogs in the said pen against the protests of defendants, causing the water to be filthy and unsafe to be used for the purposes of the mill and machinery, and which resulted in and caused the bursting of the boiler, causing said damages. The defendants allege that, at the time of their purchase and the execution of said notes here sued on, the plaintiff and his partner had the intention thus to harass defendants, and by depriving them of the use of said water, and other malicious contrivances, and thus in the end compel them to sacrifice the payments made on the mill, and to resell to them (plaintiff and his partner) at a ruinous reduction of price. And that the injury now complained of was committed ill pursuance of said original malicious intention; and that plaintiff still retains said hog pen on the same place, rendering the water unfit for the purposes of the mill, and dangerous from liability to cause explosions.

The plaintiff excepted to. the answer for insufficiency, and, for special cause, that it claims unliquidated damages against plaintiff’s certain and liquidated demand.'

The plaintiff by supplemental petition alleged the execution and delivery to him by B. R. and J. B. Tyus of their deed of relinquishment in writing, of their claim, demand and lien upon said land, which he made an exhibit to said petition; alleged readiness to comply with his bond for title to the said two acres, mill and machinery, and tendered a deed duly executed by himself and his wife to defendants, on condition that they comply with the conditions stipulated in said bond.

A jury was waived and cause submitted to the court. Plaintiff’s exceptions to the defendants’ answer were sustained, and, on the hearing of the case, judgment was rendered for the plaintiff for the sum of $882.97, with decree for the enforcement of the vendor’s lien, from which the defendants appealed, and assign seven grounds of error, all which have been carefully considered, but we do not deem it necessary to refer specially to any other of them than the second, which is as follows, viz.: The court erred in sustaining plaintiff’s exceptions to that part of defendants’ .answer setting up damages in offset or reconvention.

The statute provides that “ if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages, founded on a tort or breach of covenant, on the part of the plaintiff. Pasch. Dig., art. 3447. It is clear that if the defense, cause or action consists of1 facts which constitute a plea of set-off, there was no error in the ruling of the court. But it is insisted that the matter pleaded is properly designated as a plea in reconvention. The distinctions between the one and the other are well defined in the many cases which discuss the rules of pleading governing both classes of defenses, and they need not be here fully presented. The limit Which the decisions of our courts have assigned to the right to plead in reconvention is, that the matter pleaded or the damages claimed must have grown out of, or be in some way connected with or incidental to, the main action; it is no objection, however, that the claim pleaded in reconvention is for unliquidated damages. Carothers v. Thorp, 21 Tex., 361; Egery v. Power, 5 Tex., 501; Walcott v. Hendrick, 6 id., 406; Cannon v. Hemphill, 7 id., 184.

In the case of Castro v. Gentiley, 11 Tex., 28, the opinion delivered by Justice Lipscomb reviews all the leading cases which had been hitherto decided by the supreme court, and the conclusion deduced from them seems to be that a plea in reconvention must set up a claim or matter connected with the cause of action of the plaintiff. In a still later case,

Duncan v. Magette, 25 Tex., 246, in which the limitations applicable to the plea in reconvention were carefully considered, and the cases again reviewed in a very lucid and satisfactory opinion by Chief Justice Roberts, it was held that the docrine of reconvention permits exceptions to the rule prescribed in the fifth section of the act concerning discount and set-off, and limits their application to matters necessarily connected with the main action, and incident to the same; and declares that these limitations cannot be abandoned without producing inextricable confusion.

If the matters set out in the plea or answer of the defendants had been sufficient to constitute a ground of action entitling them to recover damages, which perhaps may be very well doubted under the vague and general allegations contained in the answer, yet such claim does not appear to be one necessarily connected with the main action nor incident to it. The plaintiff’s cause of action rests upon the indebtedness of the defendants to him for the purchase of the land, mill and machinery, whereof they were possessed, and no question made, so far as relates to the answer under consideration, to any default, failure or non-performance on the part of the plaintiff in respect to the contract of sale whereby to impugn its validity, or whence to complain of an injury, damage or loss; the defendants’ complaint, however, attaches to acts done by the plaintiff having no connection with or reference to the complete performance of that contract, and consists in an alleged and consequential injury arising from acts for the redress of which they had. ample and distinct remedies by judicial process, as by injunction or an action for damages; and such proceedings would not in the most indirect manner affect the interests or rights of either party under the contract of sale by the plaintiff to the defendants, nor involve in'- any way the right of the one to demand the purchase money, and of the other to require a title on its payment; the damage for the trespass would have no relation to the original transaction between them; it would not affect the consideration of the purchase, nor entitle the defendants to an abatement of the price or its payment in consequence of the damage sustained by them. The claim, therefore, would be in set-off and not in reconvention; and, therefore, it being for unliquidated damages, could not be set up as a defense in this action.

The answer, however, alleges that the plaintiff is insolvent, and, in effect, that without the benefit of the defense which they make they are remediless at law. It was maintained in the case of Castro v. Gentiley, 11 Tex., 28, that, independent of our statutory plea of reconvention, it is competent for the courts to entertain any matter of defense which would be the proper subject of a cross-bill in equity; and where a claim is unliquidated, and therefore not pleadable in set-off, dissimilar to and unconnected with the plaintiff’s cause of action, and therefore not pleadable in reconvention simply, equitable grounds of relief may intervene (for example, insolvency of the plaintiff and a reasonable fear that the claim of the defendant will be lost unless he be permitted to interpose it), and entitle the claim to be entertained; and where the facts are properly alleged, the denomination of the plea is not important. In the application of this principle of pleading, however, to suits like this, in the later and what may be deemed the leading case on this subject in our reports (Duncan v. Magette, 25 Tex., 245), it was held that the insolvency of the plaintiff does not constitute a qualification or exception to the clause in the statute concerning discount and set-off, which provides that if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages, founded on a tort or breach of covenant on the part of the plaintiff.” “A court of equity will not grant such a remedy by extending it to a case positively prohibited by the law.”

The rule may be considered as having been distinctly settled by that case, that the plaintiff’s insolvency cannot be made to operate as a qualification to the absolute prohibition of the statute to a defendant’s setting up unliquidated damages against a certain demand, where they are founded on a tort on the part of the plaintiff, by a plea in set-off.

It is not necessary under this view of the question to consider the intrinsic sufficiency of the cause of action which the defendants set up in their plea in reconvention. If the facts alleged were not sufficient to entitle the defendants to have recovered in an action brought upon the facts which they allege in the plea, it would not have been sufficient. Woodward v. Rogers, 20 Tex., 178.

The appellants assign as error the overruling of their application for a continuance. There is no bill of exceptions showing the-action of the court on that subject; nor does it appear from the record that said application was presented to the court for its action. Harrison v. Cotton, 25 Tex., 53.

The appellants assign as error that the court admitted in evidence a deed from the plaintiff and his wife to themselves without the signature of R. L. Bell. The record shows that Leake & Bell were partners when they sold the property to the defendants, and they joined in the bond to defendants to make title on payment of the money; the condition in the bond stipulated that “said Leake binds himself that whenever the aforesaid notes are all canceled or paid off, that he will make or cause to be made a general warranty deed to the land, mill and machinery to said Johnson, Fondren and Fondren.” The deed conformed to the condition of the bond, and was clearly admissible. There was no error in the ruling. The appellants’ general assignment, that the judgment is contrary to the law and evidence, is too general to require notice. The judgment was, however, fully supported by the evidence. The error complained of in the overruling "of defendants’ exceptions to the plaintiff’s petition is not well founded. Josia-h Leake, the original payee of the notes, was an actual and not a nominal plaintiff. He alleged that he was the legal holder of the notes, although he sued for the use of others who wére named. The case presented here is unlike that of McFadin v. MacGreal, 25 Tex., 73, where the plaintiff distinctly alleged that he had assigned the judgment there referred to, and sued for the use of said assignee. The defendants cannot complain under any interpretation that may be placed upon the legal proposition; they were not denied the advantage of any defense whatever,which they could have claimed; the form of the petition, under the allegations made in it, opened to the defendants the right to present whatever defenses could have been urged in a suit on any chose in action not negotiable.

[Opinion delivered May 3, 1880.]

We conclude that there was no error in the judgment, ' and that it shall be affirmed.

Affirmed.


author: Walker, P. J.

text:
    J. Z. Linn et al. v. R. S. Willis.
    (Case No. 3661.)
    1. Pleading — Failure of consideration.—A plea of failure of consideration in a suit to foreclose the vendor’s lien on notes given for land, which alleges that defendant had been evicted from the land and repudiated the title “ on the ground that the land conveyed to him in consideration therefor was not conveyed by good and sufficient title, and he has thereby lost the same and been evicted,” without allegations as to the invalidity of the title or offer to surrender his deed, or make the adverse claimant a party to the suit, is insufficient. 28 Tex., 272; 19 Tex., 260; 10 Tex., 65; 29 Tex., 267; ‘ 20 Tex., 211.
    2. Parties.— The wife is a proper party to a suit on a note given by the husband and wife for the purchase money of property, and to the decree foreclosing the vendor’s lien thereon; but it is error to render judgment against her for the debt or costs, when there was nothing to create a liability on her separate estate.

      3. Presumption — Community property.— The presumption is that all property in the name or apparent possession and ownership of either husband or wife is community property, and the holder of a note payable to a married woman, transferred by the husband in due course of trade, without notice that it was in fact the wife’s separate property, takes a perfect title thereto.
    4. Same.— Property in the name or possession of either husband or wife is prima facie community property, and third persons, in ignorance of the separate interest of the wife in it, will be protected in acting upon that presumption., 2G Tex., 320; 15 Tex., 283; 7 Tex., 9.
    5. Same.— The purchaser from the husband of land, the deed to which is made to the wife, is not thereby put upon inquiry as to any equity she might have in respect to it, but is protected if he buys in ignorance of her claim to it as separate property. 49 Tex., 213; 27 Tex., 457.
    6. Promissory note — Presumption as to indorsement.— In the absence of proof to the contrary, the indorsement of a note, in presumption of law, is contemporaneous with the making of it, and the defendant must prove that it was indorsed after it was due, if he would set up defenses which he might make against the payee. 14 Tex., 355.
    Appeal from Ellis. Tried below before the Hon. Hat. M. Burford.
    The facts are stated in the opinion.

      A. A. Kemble, for appellants.

      Ferris d? Kainey, for appellee.
   Walker, P. J.

The appellee, surviving partner of P. J. Willis & Brother, brought suit against J. Z. Linn and Mary C. Linn as makers, and J. W. Kemble as indorser, of a certain instrument of writing as follows, viz.:

“ Ellis County, Texas, July 2, 1867.
“ For value received, I promise to pay J. W. and C. E. Kemble, or bearer, one thousand dollars, with interest from date, in ten annual instalments, this being the consideration of two tracts of land this day deeded to me by them.
(Signed) “ J. Z. Linn,
“ Mary 0. Linn.
(Indorsed on reverse side), “ J. W. Kemble.”

The petition alleges that J. W. Kemble and C. E. Kemble are husband and wife, and were such at the execution and the delivery of the note; alleges that said payees conveyed the land described in the petition to the defendants, J. Z. and Mary C. Linn, reserving the vendor’s lien, and that this note was given as the price for said land; that J. W. Kemble indorsed, transferred and delivered the note to the plaintiff for a valuable consideration, before the same became due, and in the due course of trade. Plaintiff prays for judgment for the amount due, with interest, and for a foreclosure of the vendor’s lien, with decree for sale of the land. The petition was filed August 25, 1875.

The defendants pleaded in their substituted answer, filed May 20, 1876, that C. E. Kemble, one of the payees of the note shed on, and who was the wife of J. W. Kemble, did not indorse the same, and claims the same as her separate-property, and has notified them not to pay it to plaintiff; that she was a married woman when the note was executed, and when it was passed to the plaintiff; that she never consented to said transfer, nor did she know of the same until the commencement of this suit; that they will be liable to pay the debt twice, if the plaintiff recovers in this action. They allege that the note was passed to plaintiff after the maturity of the several instalments sued on; and that the plaintiff took the same as collateral security to secure a claim against said J. W. Kemble’s estate. They also pfay that C. E. Kemble and J. U. Pierce, executors of the will of J. W. Kemble, be made parties to this suit, and that the legal rights of all parties interested be adjusted.

On the 11th of May, 1876, the defendants filed an amended answer. The defendants set up as a defense, in said amended answer, the failure of the consideration of the ti note, in this, “ that the land mentioned in the petition did not belong to J. W. and C. E. Kemble at the time of their conveyance to these defendants by good and perfect title; but that the title to the same, in the greater part, to wit, two-thirds conveyed to them by P. H. Stephens, long since the execution of the note sued upon, is repudiated by the said P. H. Stephens, on the ground that the land conveyed to him in consideration therefor was not conveyed by good and perfect title, and he has thereby lost the same, and has been evicted. They therefore say that they are liable to be evicted in their title,- and that said Stephens threatens to bring suit to recover said two-thirds interest in said land.” That in case of eviction the estates of J. W. Kemble and O. E. Kemble are unable to respond in damages on their said warranty. The answer alleges that they paid to said J. W. Kemble the full value of the same, and greatly more than it is worth, in case of eviction, as to two-thirds of the same.

The plaintiff filed on the 12th of May, 1876, a demurrer to the answer and amended answer. The record shows the existence at that date of no other answer than the answer filed May'll, 1876, setting up the defense of failure of consideration. The demurrer was sustained, and leave granted defendants to amend. The answer filed May 20, 1876, recites that it is a substitute for the an^ver which has been lost. There is some confusion in respect to the extent of the ruling of the court sustaining the demurrer, as the entry recites, and refers to the defendants’ “ amended answer,” and no such pleading of that date (May 12,.1876) appears in the record, nor can we determine that the answer filed as a substitute answer May 20,1876, was in substance the same paper as that referred to in the order of the court, nor does it appear whether said substituted answer, after its filing, was recognized as an answer in the case which had not been excepted to by the plaintiff, nor ruled on by the court. Evidence was admitted which would have application to the matters of defense set up in it, and the evidence would be alike, applicable to the plea of C. E. Kemble, intervenor, thereby causing even greater doubt in respect to the identity of .the answer thus ruled on by the court.

O. E. Kemble, under leave of court, filed" her plea of. intervention May 19, 1877, alleging that she had never transferred nor authorized such disposition to be made of i the note sued on; that the land for which the note was given was her separate property, and that she has received no benefit from^said transfer; that the said note is held by the plaintiff, not as owner, but only as collateral security for some claim upon which J. W. Iiemble was or was supposed to be liable to the plaintiff; that said obligation is unpaid, and one-half the amount and interest is due and owing to her from the defendants, and she prays judgment for the same.

The plaintiff replied that K. S. Willis and brother (the plaintiff sues as surviving partner) became the holders and owners of the note, not only by transfer of the same by J. W. Kemble, but also by delivery to them for a valuable consideration before the same became due, and in the due course of trade; and that, if the same was taken as collateral security, it was for a precedent debt and for a valuable consideration, and that they received the same in due course of trade before the same became due, and without notice of an opposing claim, and that the same is not subject to any equities in the hands of third parties. The cause was submitted to the court without a jury, and judgment was rendered for the plaintiff against the defendants J. Z. Linn and Mary C. Linn for $995.70, with ten per cent, interest thereon, decree of foreclosure and order of sale of the land, and in case proceeds of the sale are insufficient to pay the debt, interest and costs, that “ execution issue for the balance unpaid.”

From this judgment the defendants J. Z. Linn and Mary Linn appeal and assign as errors:

1. Sustaining plaintiff’s demurrer to defendants’ answer and amended answer.

2. That the court erred in rendering judgment in favor of plaintiff against these defendants for any amount.

3. In rendering judgment against these defendants and ordering sale of the land for the whole of the debt not ■barred, one-half of the same belonging to the intervenor.

I. In rendering judgment for $100 in excess of the amount due, and in rendering judgment to bear ten per cent, interest, the obligation sued on bearing but eight per cent, interest.

The intervener, C. E. Kemble, likewise appealed, and assigned as errors that the court erred:

1. In rendering judgment against the land in favor of the plaintiff for the whole of the debt not barred by limitations, and refusing to render judgment in favor of this intervenor for one-half of the same.

2. In refusing to render judgment in her favor for the amount of one-half the note sued upon.

In respect to the assignment of error which questions the ruling of the court upon the answer and amended answer of the defendants, if it is to be referred to the answer which set up a partial failure of. consideration, there was no error in the action of the court. That answer was as fatally wanting in allegations of substantive, essential, material facts, requisite to constitute such a defense, as it was defective in the vague, uncertain and indistinct manner in which it dimly shadowed forth those facts which were alleged. The defense, which was indicated by that answer, seemed to consist in the fact that Stephens’ title to lands, which he had received as the consideration for the tract which he had conveyed to J. W. Kemble and wife, had failed, and that therefore he was entitled to evict the defendants, the vendees of said Kemble and wife. The reverse result would be quite as compatible with the facts thus stated, as that he would be entitled to recover the land he had thus conveyed, especially so if the defendants acquired their title without notice of any equities of said Stephens, and had paid a valuable consideration. The answer did not allege that Stephens received said land in ignorance of defects in the title, nor did it state any fact, or allege any fraud, upon which he would be entitled, oh failure of the title he had obtained, to rescind the. contract under which he had conveyed the land which the defendants acquired by conveyance from Kemble and wife. The defendants do not directly aver that the title of Stephens to the lands from which he was evicted was invalid, but that he has been evicted, and now repudiates the title he has conveyed 11 on the ground that the land conveyed to him in consideration therefor was not conveyed by good and per-feet title, and he has thereby lost the same and has been evicted.” Such an allegation is not equivalent to, nor will it dispense with the necessitjr of the defendants, who assert by implication only its invalidity, to do so directly, and to maintain it by evidence. They do not offer to surrender the possession of the land, nor to make Stephens a party to the suit, in order that the rights and equities of all the parties may be adjusted.

The answer was manifestly insufficient. Lemon v. Hanley, 28 Tex., 222; Cooper v. Singleton, 19 Tex., 260; Brock v. Southwick, 10 Tex., 65; Demaret v. Bennett, 29 Tex., 267; Cook v. Jackson, 20 Tex., 211.

So far as concerns the remaining defense embraced by the answer, if the demurrer can be supposed to have operated upon it, that action ceased to have any significance after Mrs. C. E. Kemble intervened in the suit and pleaded thereto. She having voluntarily become a party to the litigation, a judgment which determined her rights and claim to the ownership of the note would be conclusive against her and those privy in estate with her, to protect the defendant against a second recovery.

The principal question in the case is whether the transfer of the note sued on, to the plaintiff, by the husband, in the due course of trade, without notice that it was in fact the wife’s separate property, would invest the plaintiff with a valid title to the note. The holder of such a note, though acquired from the husband, if with notice of the wife’s title to it, would acquire no title to it. Rose v. Houston, 11 Tex., 326; Hamilton v. Brooks, 51 Tex., 145.

But where the holder, who thus acquires the note from the husband in due course of trade, has no such notice, it seems to be settled that the ordinary presumption, that all property in the name or apparent possession and ownership of either of • the spouses is community property, will exist no less in the case of a note payable to the wife or bearer, or to the husband and-wife or bearer, than to other species of property. This is the doctrine laid down in the case of Hemmingway v. Matthews, 10 Tex., 207. It is prima, facie community property, and third persons, in ignorance of the separate rights of the wife in it, will be protected in acting upon that presumption. Mitchell v. Marr, 26 Tex., 329; Chapman v. Allen, 15 Tex., 283; Love v. Robertson, 7 Tex., 9.

The purchaser from the husband, of land acquired during marriage, the deed to which is made to the wife, is not thereby put upon inquiry as to, any equity she might have in respect to it, but is protected if he buys in ignorance of her claim to it as separate property. Kirk v. Navigation Co., 49 Tex., 213; Cooke v. Bremond, 27 Tex., 457.

The answer of defendants, nor that of the intervenor, alleged, nor was there evidence to prove, that the plaintiff obtained the note with notice of the equities of Mrs. C. E. Kemble, or that the firm of P. J. Willis & Brother obtained the same otherwise than in the due course of trade. The fióte was payable to “ bearer,” and was, besides, indorsed by J. W. Kemble, the husband of Mrs. C. E. Kemble. Under these facts, upon the authorities which we have cited, it must be held that the plaintiff has a right to sue on and recover upon the note. That the holder of a note, transferable by delivery, or, if payable to order, indorsed in blank, is prima fade its owner and holds it on valuable consideration, is a principle not to be questioned. Weathered v. Smith, 9 Tex., 625. If a note be indorsed in blank, the possession is prhaa fade evidence of a good title. Ross v. Smith, 19 Tex., 172. In the absence of proof to the contrary, the indorsement of a note, in presumption of law, is contemporaneous with the making of it; and the defendant must prove that it is indorsed after due if he would set up the defenses which he might make against the payee. Watson v. Flanagan, 14 Tex., 355. There is no evidence showing when the note was transferred to the plaintiff. Mrs. C. E. Kemble testified that she did not hear of its being transferred until shortly before her husband’s death in the summer or fall of the year 1875. If the intervenor were entitled to protection in recovering back the note from the plaintiff, under the qualification of the rule of law applicable to negotiable instruments, that to defeat her equities the plaintiff must have obtained the note previously to its being due, still, under the legal effect and presumption arising from the indorsement and possession of the note, establishing, until rebutted, the fact that it was transferred before maturity, under the evidence in the case, the plaintiff must be treated as having thus purchased or acquired it before, and not after, maturity. If the facts had been otherwise, it devolved upon the intervenor or upon the defendants to have repelled the inference that it was transferred contemporaneously with its execution, by evidence to the' contrary, and the record does not supply it. But the merits of the case do not require the application of this artificial rule which is peculiar to the law of negotiable instruments; the right of the plaintiff to recover rests securely, on broader ground,— that which entitled him, in the absence of notice that the note belonged to the wife as her separate property, to regard it, and deal with the husband in respect to it, as though it were property belonging to the community, which he. had a right to dispose of.

The note bore only the legal rate of interest, and the judgment was rendered on the basis that it bore ten per cent, interest, and the judgment was accordingly so rendered,. and to bear ten per cent, interest until paid; besides, the judgment is rendered for the amount thereof against the wife as well as the husband, and there is no basis laid in the petition as a proper predicate for the rendition of a judgment against her on the note. Such a judgment is erroneous. It is such an error as should properly be noticed, whether assigned or not. Lynch v. Elkes,. 21 Tex., 230. The note was simply one made and signed by the husband and wife, and there is no pretense that it was a contract which created a liability on her separate estate to discharge; and yet the effect of the judgment is thus to render it liable. Howard v. North, 5 Tex., 299, 300.

There is no sufficient ground for a reversal and remanding of the cause for further proceedings; there is such error, however, as to require that the judgment be reformed, and such judgment rendered by the supreme court as ought to have been rendered by the district court, and the same shall be awarded accordingly, to the effect that the judgment be rendered as of the day in which the same was entered in the district court for the amount due, and which was not barred by limitations at the institution of the suit, together with the amount which was declared on by amendment as falling due after the institution of the suit, at the rate of eight per cent, interest on the respective instalments payable annually from the date of the instrument, said judgment to bear the same rate of interest; and that the judgment be further reformed so as to be rendered against said J. Z. Linn alone for the said sum of money thus ascertained to be due and for costs of suit, and against both said J. Z. Linn and his wife, Mary 0. Linn, in respect to the foreclosure of said lien and the enforcement thereof by the order of sale, and that the costs of this appeal be adjudged against the appellee.

[Opinion delivered May 3, 1880.]

^Reformed and rendered.


author: Quinan, J.

text:
    J. E. Hawkins and wife v. Carr Forrest et als.
    (Case No. 3273.)
    1. Pleadings—Insufficient petition.—A petition in a suit for a legacy against one alleged to be an executrix, which fails to allege that the defendant had qualified as such executrix; or whether the estate was in due course of administration in the county court; or in what capacity the defendant took possession of the property of the estate, except by referring to articles in Paschal’s Digest; and where personal judgment against the executrix was claimed, failure to allege any fact or circumstance authorizing a personal judgment against her is insufficient, and overruling a demurrer filed thereto was error.

      2. Minors—Practice.— If minors have lawful guardians they should be made parties to suits in which minors are interested; if not, or the guardians are interested adversely to the minors, special guardians must be sworn and qualified. Pas. Dig., 6968, 6973; Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, id., 300.

      3. Pleading—Prayer for relief.— Factsnofc alleged, though proved, cannot form the basis of a decree; and where a plaintiff does not pray for judgment, or ask any relief, it is improper to render any judgment in his favor. Hall v. Jackson, 3 Tex., 305; Chrisman v. Miller, 15 Tex., 159; Hobby v. Campbell, 22 Tex., 582; Mann v. Falcon, 25 Tex., 276.
    4. Administration—Individual judgment against executrix.— It is error to render judgment against an executrix individually, where it is not shown that she has received and misapplied funds of the estate, or otherwise become liable in any way in her individual capacity for the payment of the money claimed.
    5. Interest—When it would begin in favor of legatee.— Inter- . est is the creature of the statute, and unknown to the common law, and the statute does not appear to embrace legacies. An executrix will be chargeable with interest from the time when, in the prudent management of the estate, and in view of its debts and condition, and after demand made upon her, she can pay it without risk. Interest cannot be demanded until it is clearly shown that the executrix is in default. Adriance v. Brooks, 13 Tex., 281; Davis v. Thorn, 6 Tex., 286; Roper on Legacies, 1245; Williams on Executors, 1153.
    Error from Ellis. Tried below before the Hon. H. Barksdale.
    This suit was instituted on 24th August, 1874, in the district court of Ellis county, by Carr Forrest, plaintiff, against J. E. Hawkins and Mary, his wife, Hellie Cobb, a minor daughter of Wade H. Cobb and Eleanor Cobb, Wade II. and Oliver Couch, minors and grandchildren of Wade H. Cobb and Eleanor Cobb, defendants.
    The petition alleges that on the 12th May,. 1854, E. H. Tarrant made his will, bequeathing to W. II. Cobb §2,000.
    2. That the will was conditioned as in article 1371, P. D.
    3. That Mary Hawkins (formerly Tarrant) and her husband took possession of the estate of Tarrant under article 1372, P. D., and a tract of land, part of said estate, which is described.
    4. That Cobb and his wife being indebted to plaintiff in a certain sum, all the\heirs of Cobb, except the minors, assigned to him, on the 30th August, 1872, their interest in the legacy aforesaid. (The transfer is annexed.)

      5. Wherefore the defendants are indebted to plaintiff in the sum of $900 and interest, and that the same is now due; and defendants, though often requested, have refused to pay it.
    The prayer of the petition is that Hawkins and his wife be cited; that a guardian acl litem be appointed to represent the minors, for judgment for his debt and costs, and the sale of the land, etc.
    The assignment of the legacy is as follows:
    “ The State oe Texas, County of Ellis.

    “ For a note due Carr Forrest by W. FI. Cobb, deceased, for $500, due 1st January, 1862, with interest at the rate of ten per cent, per annum from date, also an account for $169.41, due 1st January, 1872, now, therefore, for and in consideration of the above claims, we, the undersigned, heirs at law of the said W. H. Cobb, do hereby transfer to the said Carr Forrest, the balance due us as the heirs of W. H. Cobb, deceased, of the legacy left to said W. H. Cobb by E. H. Tarrant, deceased, said legacy consisting of $2,000, credited $1,100 this 30th day of August, A. D. 1872.
    (Signed) “ Eleanor Cobb,
    “ Eleanor Young,
    “ Jacob Young,
    [seal] “M. A. Henderson,
    “Eliiiu Henderson,
    “H. B. Cobb,
    “J. M. Cobb.”
    This assignment is acknowledged by Mrs. Eleanor Cobb, Jacob Young, Elihu Henderson, FT. B. Cobb and J. M. Cobb; also by Mrs. Eleanor Young, wife of Jacob Young, and Mrs. Henderson, wife of Elihu Henderson, with their' privy examination before the proper officer.
    Citations appear in the record to FTellio B. Cobb, Oliver Couch and W. H. Couch, which were served. Hawkins and wife accepted service.
    At the May term, 1875, an order was made by the court appointing “ FL J. Flash special guardian to represent minor defendants herein.”

      The defendants, Hawkins and wife, filed a' general demurrer to the plaintiff’s petition, and answered the general denial.
    They admit the death of Tarrant, as alleged, and that he made a will. i

    That by the terms of the will, Mary Hawkins was made the residuary legatee of all the property, after the payment of the debts and certain legacies, mentioned in the will, and sole executrix, and it was provided that no action should be had in the county court other than the probate of the will and the return of an inventory, and no bond was required.
    That she has never been required to give bond for the payment of the debts, nor has any heir or legatee given bond to pay the debts.
    That there are debts against the estate yet unpaid.
    They deny the legacy could draw interest, or that it is a lien upon the land.
    They aver that the land is in litigation; that a large amount of costs and attorneys’ fees have accumulated in the case, and become a lien upon the land.
    They pray to be dismissed with the costs, etc.
    H. J. Hash filed an answer as “ guardian ad litem ” for the minor defendants, Hellie B. Cobb, the child of W. H. Cobb, and Wade H. Couch and Oliver Couch, grandchildren of W. H. Cobb. He demurs generally to the petition, and pleads the general denial, and nothing more.
    Upon these pleadings (there is no statement of facts) the cause was submitted to the judge, and judgment was rendered, reciting that the plaintiff and Hawkins and wife appeared by their attorneys, and Hellie B. Cobb, Wade IT. Couch and Oliver Couch, who were minors, appeared by their guardian ad litem, H. J. Hash, Esq.”
    The exceptions were sustained, so far as plaintiff “attempted to recover the interest of said minors to said legacy is concerned, and overruled so far as the interest of the adult heirs to said legacy is concerned,” to which Hawkins and wife excepted. And, after hearing the evidence, it was decreed that J. M. Hawkins and Mary Hawkins, his wife, and the executrix of the last will and testament of E. H. Tar-rant, deceased, pay over to plaintiff “ all the right, title, interest and claim of Eleanor Cobb, wife of W. H. Cobb, and Eleanor Young, M. A. Henderson, IT. B. Cobb and J. M. Cobb, children and heirs at law of W. H. Cobb and Eleanor Cobb,” in the legacy of $2,000, less $1,100 paid — their interest being $700 principal, $840 interest; in all $1,540.
    2. That J. E. Hawkins and Mary Hawkins, his wife, and executrix, etc., pay over to Kellie B. Cobb, a minor heir of W. H. Cobb and Eleanor Cobb, and Wade H. Couch and Oliver Couch, who are minors and grandchildren of W. H. Cobb and Eleanor Cobb, all their interest in the legacy, being $200 principal and $240 interest; in all $440. And then judgment was rendered for costs against Hawkins and wife, in favor of plaintiff and the minors, for which let execution issue against the estate for all costs herein incurred.
    Hawkins and wife filed a motion for a new trial, but no action appears to have been taken thereon.
    The cause is brought here by Hawkins and wife by writ of error.
    It is assigned for error:
    1. That the court erred in overruling the demurrer.
    2. That the judgment is excessive.
    3. That the court erred in rendering judgment against defendants. ; ' .
    4. In apportioning the amounts, giving plaintiff too much and minors too little.
    5. In rendering judgment for plaintiff for the share of Kellie B. Cobb, and in favor of Kellie B. Cobb for the same interest.
    6. In rendering judgment for interest.
    7. In rendering judgment against Hawkins and wife in personam and for costs.
    8. In calculating the amounts in the judgment, adjudging as if Eleanor Cobb had' one-third interest and that there were six equal interests beside.
    9. In rendering judgment against the defendants for any sum in any form.

      A. A. Kenible, for plaintiffs in error.

      Amzi Bradshaw, for defendants in error.
   Quinan, J.

It will be unnecessary to notice these assignments specially. The full statement of the pleadings and proceedings in the case which we have given makes manifest the many and fundamental errors committed.

1. It was error to overrule the defendants’ demurrer. The petition did not set out a good cause of action against the defendants, Hawkins and wife, or show plaintiff’s right to sue. It did not allege that Mary Hawkins had ever qualified as his executrix, or whether his estate was in due course of administration in the county court or not, or in what capacity Mary Hawkins took possession of the property of the estate, otherwise than by the enigmatical reference to articles in Paschal’s Digest.

2. It is not alleged that the widow and children, the lawful heirs of W. H. Cobb, had the authority to recover or to transfer this legacy. It is not shown whether there is any administration upon his estate. So as respects the Couch children; whether there was any administration upon the estate of their mother is not alleged. In both cases if the heirs could sue or transfer a right to sue, the circumstances which authorize them to do so should be alleged. It is not shown that the minors have no legal guardian.

3. There is no allegation in the petition of any fact or circumstance which would authorize a judgment against Hawkins and wife individually. They could only be chargeable to the extent of the property of the estate which came to their hands and which had been appropritated wrongfully to their own use.

. The judgment of the court cannot be sustained. The record does not show, as the law required at the time of the institution of this suit and the rendition of the judgment, that a special guardian had been appointed by the court to represent the minors, and that he had taken the oath and given bond as the statute prescribes. If the minors had lawful guardians, they should have been made parties; if not, or the guardians were interested adversely to the minors, special guardians should have been appointed, sworn and qualified. And this not appearing to. have been done, the objection is fatal to the judgment. Pas. Dig., 6969, 6973; Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, 50 Tex., 302; Brooke v. Clark, Austin Term, 1880.

2. The allegations of the petition do not warrant a judgment in favor of the minor heirs. There is no averment in the petition nor in their answer showing their right to recover, how they have or acquired any interest in the legacy, or what their interest is. And there is no prayer for judgment or any relief asked for them. Facts which were not alleged, though proved, could not form the basis of a decree in their favor, and having asked for.no relief, it was improper to render any judgment for them. Hall v. Jackson, 3 Tex., 305; Chrisman v. Miller, 15 Tex., 159; Hubby v. Camplin, 22 Tex., 582; Mann v. Falcon, 25 Tex., 276.

3. It was error to render judgment in favor of the plaintiff, Carr Forrest, for the interest of Hellie B. Cobb, and in her favor for the same interest in the legacy.

4. It was error to order payment of the legacy by Hawkins and wife, and to render judgment against them individually, because there were no allegations in the pleadings to warrant it. It was nowhere shown that they had received and misapplied any funds^of the estate, or had become liable in any way in their individual capacity for its payment. If they could be made liable under the pleadings in the case, it could only be in their representative capacity, and the decree should have been against them as such, and execution to run against the property of the estate.

5. Ho basis wTas laid in the petition for the charge or computation of interest. The terms of the legacy are not set out in the petition, nor are we apprised whether it was payable specially at a fixed time, nor when it was demanded or could have been paid. The question as to when, as against the estate of the testator, a legacy should bear interest, is not free from difficulty. Interest is the creature of the statute, and unknown to the common law, and our statute does not seem to embrace.legacies. We have no decisions of our courts upon the subject in relation to legacies. • We do not care to state any general rule upon the subject. But in the present case, as we infer from the meager record and the briefs of counsel that Hary Hawkins is the executrix and also residuary legatee under the will of E. H. Tarrant, we incline to the opinion that she would be chargeable with interest from the time when, in the prudent management of the estate, and in view of its debts and condition, and the assets in her hands, and after demand made upon her, she could have paid it without risk. Under the law, before the 'court would compel her to pay the debts and legacies, she •would be allowed a reasonable time to ascertain the condition of the estate, and gather in it's 'assets and ascertain its liabilities. If- the legatees wished to obtain possession of the legacy, the statute suggests a mode wherebjr, on giving bonds for the payment of the debts to the amount of the legacy, or indemnifying the executrix, they could obtain it. Hot having done so, we are of opinion that interest cannot be demanded until it is clearly shown that the executrix was in default in not paying it. Adriance v. Brooks, 13 Tex., 281; Davis v. Thorn, 6 Tex., 486; Roper on Legacies, 1245; Williams on Executors, 1153.

6. If it be conceded that all the facts and parties were before the court to warrant a decree, yet the judgment cannot be correct. The principal of the legacy alleged. to be unpaid is $900. The apportionment made by the court is of $940 principal, and the interest is calculated upon this erroneous basis.

7. Since the institution of this suit and the rendition of the judgment in this case, the Bevised Statutes have been adopted, which furnish rules for procedure in all cases for the recovery of claims against the estates of deceased persons, whether in due course of administration, or where estates are being administered without the intervention of the county court. And this renders it unnecessary to discuss the questions further which are presented in this record and the briefs.

[Opinion delivered May 3, 1880.]

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

Reversed and remanded.


author: A. S. Walker, J.

text:
    G. M. Etter et al. v. Geo. C. Dugan.
    (Case No. 3048.)
    Pleadings —Failure of'.consideration.—A merchant gave his note for goods of one in failing circumstances, and at the time made a parol agreement that, if compelled to surrender the goods under legal process, the note should not be paid; in a suit on the note, an answer setting up that litigation concerning the goods was pending in a bankruptcy court did not show failure of consideration, and it was not error to sustain exceptions to it.
    3, Practice.—The ruling of the court in excluding an answer being correct, any irregularity in reaching the result is immaterial.
    3. Varying written contract by parol.—One purchasing goods and executing his note for their value may, at the time, contract by parol that he should not be liable on the note if compelled to surrender the goods under legal process, and if sued on the note he may plead the parol contract and failure of consideration as a defense to it; or if he had paid the note he may recover back the money on the parol contract, if compelled to surrender the goods.
    4. Claim against an estate —Jurat.—“Sworn to and subscribed before me, this December the 16th, 1873. Attest: L. Bostick, Clerk,” is a sufficient jurat to an affidavit, in proving up a claim against a decedent’s estate under the probate law of 1870.
    5. Same.— Mere irregularities in the form of a jurat to a claim against an estate should be objected to, if at all, by the administrator, when the claim is presented for allowance or rejection.
    6. Practice—Evidence.— An offer to prove that the signature of the clerk to a jurat is not the handwriting of the clerk is not equivalent to offer to prove the signature a forgery, and it is riot error to exclude the evidence.

      7. Judicial knowledge.—Courts take cognizance of their own subor- • dinate officers and of their signatures, and this knowledge extends to the acts of the former officers appearing to judicial proceedings in the proper office.
    8. Clerk’s certificate.— District clerks are not required by statute or practice to attach their seal of office to their official certificates to affidavits, file marks, etc., for use in the court where made.
    Appeal from Grayson. Tried below before the Hon. J. M. Lindsay.
    January 17,1874, Dugan brought' suit in the district court of Grayson county against H. A, Parrish (administrator of the estate of J. D. Fenet) and G. M. Etter and J. D. Fenet, upon a promissory note of date July 30, 1872, payable to the order of plaintiff thirty days after date, made by the deceased, J. ¡N. Fenet, and the defendants Etter & Fenet, for $1,691.28 gold, for value received, with interest at two and one-half per cent, per month after due. Several credits were acknowledged. Due presentation of the claim on the 8th day of June, 1872, to Parrish’s administrator was alleged, and its rejection indorsed on -the claim.
    The defendant pleaded general denial, and specially that one S. B. Hendricks had a judgment against Cummings & Fenet; levied an execution on goods of Cummings & Carter, which were sold at. public outcry, and bought by J. H. Fenet. That Dugan about same time sued out an attachment against Cummings & Carter, and levied same on the goods as of Cummings & Carter, who were in failing circumstances, and it was agreed between plaintiff and Fenet that Fenet should keep possession of the goods, and if he was not compelled to surrender the same to the United States marshal, nor other officer, then Fenet should pay plaintiff’s debt; but if he should be compelled to surrender said goods, then he should not paj’’ the note.
    That the note was made under these circumstances, and thát consideration failed, in this: that said Fenet was compelled to surrender said goods, and did surrender the same to the officer of the bankrupt court, under proceedings in bankruptcy against Cummings & Carter, and they aver that there is now pending in the United States circuit or district court, at Tyler, a suit by J. C. Easton, assignee in. bankruptcy of Cummings & Carter, against J. H. Fenet for the same goods, etc.
    Amended: that at date of Dugan’s attachment Cummings & Carter were in failing circumstances, all of which was known to plaintiff. That within four months from the levy of the said writ of attachment Cummings & Carter were adjudged bankrupts, whereby the levy became null and void, and plaintiffs had no lien or right in said goods which could constitute a consideration for said note.
    Exceptions were tiled to the special answer: (1) Because not sworn to; and (2) it seeks to vary a written contract by parol testimony and by contemporaneous parol agreement, and does not allege fraud, accident or mutual mistake.
    The exceptions were sustained, to which defendants excepted.
    On the trial the plaintiff offered in evidence the note sued upon, together with the affidavit and certificate of authentication.
    The affidavit was annexed to the note, and in proper form, and was signed by plaintiff. The jurat is as follows:
    “Sworn to and subscribed before me, this December the 16th, 1873.
    “ Attest: L. Bostick, Clerk.”
    Indorsed, “Presented and rejected, January 8,1874.
    “ H. A. Parrish,
    “Administrator of J. U. Fenet.”
    To which Parrish objected: (1) It does not appear from the certificate that L. Bostick was the clerk of any court. (2) The certificate is not attested by any seal. (This, on inspection, was true.) (3) The “ L. Bostick, Clerk,” to the certificate, was not signed by said Bostick, and defendant offered to prove by Chas. Walton that said signature was not the handwriting of said Bostick. (The court excluded the evidence.) The objections were overruled, and the note and affidavit and indorsement of rejection admitted.

      Judgment was rendered for plaintiff, from which defendants appealed.
    The errors assigned are:
    1. Sustaining exceptions to the answer.
    ‘ 2. Admitting the testimony, as against the estate, of the authentication, presentation and rejection of the claim.
    3. Refusal to allow defendant Parrish to prove that the name of “ L. Bostick ” was not his handwriting.

      Throckmorton <& Browns, for appellants.

      A. E. Wither son and Walton, Green & Hill, for appellee.
   A. S. Walker, J.

The answer was not required to be verified by affidavit. The note was not under seal.

2. It is evident that neither fraud, accident nor mutual mistake is alleged in the answer, nor is it in terms stated that the note was without consideration. In fact the answer shows there was a consideration, which it seeks to show had failed.

3. Eor was the contract, or any part of it, as alleged in the answer, illegal. While the attachment was subject to be discharged by the subsequent bankruptcy proceedings ..against Cummings & Carter, such contingency could not .attach to the levy of the attachment the taint of illegality, other or beyond its defect as a lien, if sought to be asserted against the assignee in bankruptcy. Until discharged by the bankruptcy proceedings, in fact, the attachment was valid. Eor does it appear that an adjudication, even to that extent, had been reached in the proceedings.

4. The failure of the consideration, or rather the happening of the alleged contingency upon which, by the contract set out in the answer, the obligation to pay the note should be defeated, as pleaded presents a question of some difficulty.

The failure is that Eenet was compelled to surrender said goods, and did surrender the same to the officer of the bankrupt court, under proceedings in bankruptcy against said ■Cummings & Carter. And they aver that there is now pending in the United States circuit or district court, at Tyler, a suit by J. C. Easton, assignee in bankruptcy of the estate of Cummings & Carter, against J. II. Eenet for the same goods. This plea was filed October 8, 1874. The note bore date July 30, 1872.

This statement places the goods in litigation in a suit brought by Easton. The probability as to the result of the suit is not stated. It may be presumed from the allegations that the United States marshal may have seized under se7 questration the goods pending the suit. But there is no allegation affecting the property rights of Eenet in the goods beyond the mere pendency of suit for them.

This allegation does not meet the condition that Eenet should have to “surrender” the goods. The alleged breach of the contract as given in the answer is not sufficient. The loss is not total, nor is any fact given from which a partial failure can be measured; and it does not appear but that he may recover against Easton, and so have the full consideration.

Dugan could have contracted with Eenet by parol, in a transaction of which the note was part, that he should not be liable for the debt except on his holding the goods. Thomas v. Hammond, 47 Tex., 52; Ins. Co. v. Lacroix, 45 Tex., 170; Wharton on Ev., §§ 927, 928; 1 Green 1. Ev., 284a. While the note was payable at a fixed day, still, had it been paid, Tenet’s rights, under such agreement, could have been enforced by suit against plaintiff. As the note was not paid, and this action is between the original parties, it does not appear why the whole subject, and the respective rights of the parties as growing out of their contract applied to the facts existing at the trial, could not have been litigated in one suit.

Being proper in matter, and as the mode of proof was not before the court on the exceptions to the pleadings of the defendant, it was not proper to hold the special answer bad because the contract set up was not alleged to be in writing. Thomas v. Hammond, 47 Tex., 52; Lewis v. Alexander, 51 Tex., 585; Gould on Pl., ch. 4, secs. 43 and 46.

But while the answer was not defective for the reasons given.in the exceptions, it was fatally defective in failure to show a defense on the merits. It acquired no aid from the insufficient attack upon it. ■ Presenting no defense, the court could disregard it without injury to the defendant. The ruling of the court being correct in excluding the answer, any irregularity in the mode of reaching the result would be immaterial.

5. The court below evidently assumed judicial knowledge of the genuineness of the signature, “L. Bostick, Clerk,” and also of his character as a clerk of his court.

There is no statute or practice of courts requiring that clerks of the district courts should attach their seals to their official certificates to affidavits, file marks, etc., for use in the court where made.

At the time the affidavit by Dugan purported to have been made the district courts had exclusive probate jurisdiction — much of judicial power in probate matters was vested in clerks of said courts. The affidavit to the claim, whether rejected or alloxved, became, under the law, a filed paper of the district clerk’s office. If allowed, it was filed xvith the clerk for approval by the court.' Pas. Dig., 5658. If rejected, then by suit thereon in the same court. Pas. Dig., 5659. That a clerk should go out of office did not render his signatures of less force than they were when made by him in the course of his duty. The office does not die; the official acts remain as facts in the courts, though incumbents may change. The court takes cognizance of its own subordinate officers, and necessarily of their signatures. This knowledge should extend to the acts of former officers approving judicial proceedings in the proper office. Wharton on Ev., 325; Norvell v. McHenry, 1 Mich., 227; Dyer v. Lost, 51 Ill., 179.

The offer to prove that the signature was not the handwriting of L. Bostick was not, as shown in the bill of exceptions, equivalent to an offer to prove the attestation a forgery,'or not the authorized act of Bostick. Defendants did not propose to show that L. Bostick was not clerk of the court where the suit was tried, at the date of the affidavit, or any fact showing the action of the judge to be a mistake.

[Opinion delivered May 3, 1880.]

6. The reason given by the district judge for refusing to entertain the objections is entitled to some force, being “ that the objections cannot now be made unless they had been specially made when the claim,, was presented to the administrator for allowance.”

The authority relied on by appellants (Walters v. Prestidge, 30 Tex., 71) holds that an affidavit wanting the essential statutory requisites is a nullity. It does not reach the matter involved here. The affidavit of Dugan to his claim, is perfect, if made before the proper officer. If, in fact, Bostick had not been a clerk of the court where the affidavit was exhibited, or if his signature had been forged to the paper, it certainly could have been shown.

Mere irregularities in the form of the jurat ought to have been noticed when the claim was presented, if at all. If the administrator knew that the affidavit was genuine and made before the proper officer, but imperfect in authentication, such defect ought to have been acted upon at the time. Keese v. Beckwith, 32 Tex., 736; Hansel v. Gregg, 7 Tex., 228.

Finding no error requiring a reversal, the judgment below should be affirmed.

Affirmed.


text:
    A. G. & J. R. Cummins v. J. F. Denton et als.
    (Case No. 3689.)
    1. Pleadings.— A plaintiff who pleads his title specially is confined to the title set out in his pleadings, and can only recover thereon. 11 Tex., 663; 39 Tex., 508; 47 Tex., 219.
    2. Homestead — Void sale of.—The homestead having been set apart to the family is no longer subject to administration; and a sale of it made under the order of the probate court for the support of the widow and minor children is a nullity, and confers no'title.1 40' Tex., 385 ; 21 Tex., 664.

      Appeal from Collin. Tried below before the Hon. E. E. (5-aines.
    This was an action brought in the district court of Collin county by A. (r. & J. E. Cummins, against defendants, J. F. Denton et al., to recover fifty-four acres of land in Collin county out of a survey of two-thirds of a league and labor, the head right of William Davis. The land in controversy was patented to William Davis/on the 6th of September, 1850, and was settled upon by William Davis and his wife, Sallie Davis, in 1858, and occupied and used by them and their children, who were all minors, until the death of Davis, which occurred about May 1, 1868, and by Sallie and her children afterwards, until it was set aside to them by the probate court of Collin county, on July 27, 1868, with other lands, in all less than two hundred acres, as a homestead; the estate of William Davis having proven to be insolvent. Afterwards, at the January term, 3869, of the county court of Collin county, upon the application of Sallie Davis, who was the administratrix of William Davis, due notice having been given according to law, the land in controversy was by the decree of the court ordered to be sold for the support and maintenance of Sallie and her minor children, who were in - destitute - circumstances. The land, after having been advertised according to law, was. sold on the first Tuesday in March, 1869, and purchased by appellants; the purchase money paid; the sale confirmed by the probate court of Collin county, and a deed executed for the same by Sallie Davis, the administratrix, on April 10, 1869.
    William Davis had, on April 25, 1841* made his bond for title to one J. B. Denton, Sr., appellees’ ancestor, conditioned to convey to him, his heirs or assigns, six hundred and forty acres of land out of his headright of two-thirds of a league and labor, so soon as the same should be located and patented, the land in controversy being a portion of the head right, and patented September 6, 1850. The bond for title was never recorded. Afterwards, on October 28, I860, appellees and other heirs-at-law of J. B. Denton instituted their suit in the district court of Collin county for the specific performance of" the bond.

      Wm. Davis having died intestate about May 1,1868, Sallie Davis was, by the probate court of Collin county, about June 1st thereafter, appointed administratrix of his estate. A scire facias was issued by the district court of Collin county on September 5th, to make her a party to the suit of the Heirs of J. B. Denton v. William Davis; Sallie appeared and answered on March 22, 1869.
    At the November term, 1870, of Collin district court, the cause came on to be heard, and, a jury having intervened, returned into court the.following verdict, viz.:
    “We, the jury, find for the plaintiffs three hundred and twenty (320) acres of land.”
    Whereupon commissioners were appointed by the court on the same day to lay off, set aside and assign the land to the plaintiffs and make report of their action, which was done accordingly, and their report confirmed on December. 2,1870, in open court.
    Appellants had actual notice of the pendency of the suit of the Heirs of J. tB. Denton v. Wm. Davis. The land so set aside by the commissioners for the heirs of J. B. Denton embraced the land in controversy in this suit. At the time of the institution of the suit by the heirs of J. B. Denton v. Wm. Davis, on October 28, 1860, in the district court of Collin county,- to enforce the specific performance of the bond, Davis owned of his headright about seven hundred acres of land; but on May 1, 1868, had sold off all but about four hundred acres of the land, including his homestead. Upon this state of facts this causé was submitted to the district court of Collin county, February 13, 1878, when it rendered judgment to the following effect:
    That plaintiffs take nothing by their suit, and that defendants have and recover of plaintiffs all costs in this behalf expended, appellees being already in possession of the land. To which appellants excepted and gave notice of appeal to the supreme court.

      Richard Maltbie, for appellants.

      Throckmorton do Brown, for appellees.
   Quinan, J.

The errors assigned are:

I. That the court erred in rendering judgment in-favor of the plaintiff and against the defendant.'

II. That the judgment of the court is contrary to the law and evidence.

We are of opinion that these assignments are not well taken.

I. The plaintiffs in their petition set out their title specially. They claim under a sale made by the administratrix of Davis by order of the probate court of Collin of the land in controversy, which formed a part of the tract which before then had been set apart to the widow and children of Davis as a homestead.

The probate court had no power to order the sale. The homestead having been set apart to the family was no longer subject to administration in the estate of Davis, and the sale made under its order was a nullity and could confer no title. Harrison v. Oberthier, 40 Tex., 389; Sossaman v. Powell, 21 Tex., 664.

II. The appellants insist that the title to the homestead vested in Mrs. Davis and the children, and that her deed as administratrix, as the sale was made by her procurement and she received the money, at least conveyed her interest in the land. This claim of title is not set out in the pleadings and is made for the first time in their brief. Having pleaded their title specially, they are confined to that title and could only recover thereon. Rivers v. Foote, 11 Tex., 662; Turner v. Ferguson, 39 Tex., 508; Custard v. Musgrove, 47 Tex., 219.

III. But the setting apart of the homestead did not dis-incumber it of the right of Denton’s heirs, who had acquired an undivided interest in the land prior to the acquisition of any homestead thereon by Davis or his family, to have partition of their interest out of the lands owned by Davis $t the institution of their suit by virtue of his title bond. It is true that the court, having regard to that favor with which the law regards the preservation of the homestead of the family, would require, had it. been asked, that the Denton claim should be satisfied out of the other portion of the land owned by Davis at the institution of Denton’s suit subject to it, without encroaching upon the homestead, if the partition could so equitably be made. But then suit had been instituted and was pending when the probate court set apart the homestead; the administratrix was a party to that suit when the decree was rendered therein; the plaintiffs herein had actual notice of it when they purchased, and the proof shows they “ were told before the purchase that there was not enough land left to satisfy the bond, and that the land they were about to purchase would be required to satisfy it.” It was incumbent on the administratrix, in that suit of Denton’s heirs.against her, if she apprehended that the homestead might be encroached upon in the partition, to show that there were other lands subject to the satisfaction of their claim which could equitably be apportioned to them without an infringement of the rights of the family to their homestead. Upon the coming in of the report of the commissioners it was her duty to make objection, if she was dissatisfied with their acts. And so the plaintiffs here might in that suit have made themselves parties for the protection of any right they had acquired by their purchase at the administration sale, or any equitable interest they might assert as purchasers of Mrs. Davis’ interest, and the payment of the money to her. Clements v. Lacy, 51 Tex., 159; Robinson v. McDonald, 11 Tex., 385; Williams v. Weathered, 37 Tex., 130; Harrison v. Oberthier, 40 Tex., 385.

[Opinion delivered May 3, 1880.]

IV. But the judgment in the case was regularly rendered, and bound Mrs. Davis and the heirs of William Davis, and all persons claiming under them. Pas. Dig., art. 5696; Briscoe v. Bronaugh, 1 Tex., 326; Wade on Notice, 150, § 346; Pas. Dig., art. 7.

We conclude that the judgment be affirmed, and so award.

Affirmed.


author: A. S. Walkee, J.

text:
    C. H. Dean v. L. B. Ingle.
    (Case No. 3079.)
    1. Land — Rescinding sale — Fraudulent representations.— A purchaser induced to buy land by the fraudulent representations of the vendor as to its quality, situation and value, which he at the time believed and acted upon, may have the sale rescinded.
    Appeal from Limestone. Tried, below before the Hon. D. M. Prendergast.
    L. B. Ingle tiled his petition in the district court of Limestone county on the 26th day of December, 1874, against C. H. Dean. The petition alleged, in substance, that on or about the 7th day of November, 1874, Dean sold Ingle a tract of land, situated in Hunt county, Texas, containing three hundred and twenty acres (describing it); that a deed to the same was duly made and authenticated; that the consideration for said transfer was houses and lots, described by number, etc., and as in the town of Groesbeeck, in Limestone county, which were deeded to defendant by plaintiff at the time the trade was made; that the property in the town of Groesbeeck referred to was of the value of $800; that the defendant falsely and fraudulently represented to plaintiff that the said land, situated in Hunt county, was splendid second bottom land, opening back into the upland; that there was a magnificent body of timber on the land, rendering it particularly valuable for cord wood; was conveniently situated to and within four miles of a railroad; that there were beautiful building sites on it; that there were some improvements, a field, an old house, a well; was valuable for tillage, and was worth fully the sum of $2 per acre; that having the utmost confidence in the representations of defendant, and believing them to be true, and being influenced thereby, plaintiff acted on said representations, being ignorant as to the falsehood of the same, and traded his property in the town of Groesbeeck to defendant for the land situated in Hunt county. That the representations of defendant that the land in Hunt county was valuable, convenient to a railroad, and had some improvements thereon, etc., were false within the knowledge of defendant, and were made with the intention and for the purpose of defrauding this plaintiff. That in consequence and pursuance of said trade, plaintiff moved his family and household goods from Limestone county to Hunt county, and then for the first time saw said land. That the land, instead of being as represented by defendant, was utterly worthless for agricultural purposes, it being overflowed land, and unfit for a homestead.' That the land had no improvements on it as represented by defendant. That it was not nearer than about eighteen or twenty miles to a railroad. That he was damaged $500. That he has offered, and is now ready, to return to defendant this land, and the difference received in the trade made between defendant and plaintiff. That defendant refuses to rescind this contract, although often requested so to do. Prayer for judgment rescinding the transaction, and the re-establishment of the title to the property in the town of Groesbeeck in himself, and for damages, and for general and special relief.
    At the February term, 1875, defendant answered with a general denial; and at the October term, 1875, filed an amended answer, setting up a ratification.
    On 13th March, 1875, plaintiff filed an amended petition, alleging that he was never on the land purchased from defendant, situated in Hunt county, until after the purchase, but trusted wholly to the representations of the defendant in making the trade, and praying for damages, for rent, etc.; and adopting all the allegations in his original petition.
    On the 16th October, 1875, plaintiff filed his second amended petition, alleging an offer to refund to defendant all money he had paid plaintiff, and to protect him from liability on the Cook note; and denying the alleged ratification in defendant’s amended answer, and charging the de-' fendant with additional fraud in obtaining the document pleaded'as a ratification.
    On the 20th day of October, 1875, the parties went to trial, and the jury returned the following verdict: “ We, the jury, find for the plaintiff and to rescind the trade, and place each party statu quo; and we further find for the plaintiff damages and rents to the amount of one hundred and twenty-six dollars ($126).”
    On the 22d October, 1875, the defendant moved the court for a new trial, for the reasons:
    1st. The charge of the court is contrary to the law.
    2d. The verdict of the jury is contrary to the law and the evidence.
    3d. For other good and sufficient reasons apparent on the face of the record.
    And also motion in arrest of judgment, because:'
    1st. The petition in said cause is not sufficient in law to entitle the said plaintiff to the remedy asked for.
    2d. (The judgment, as it appears of record, is wrong and fraudulent, and not in accordance with the verdict of the jury.
    3d. For other good and sufficient reasons apparent ón the record.
    These motions were, both overruled, and 'defendant appealed. The judgment rendered upon the verdict canceled the deeds constituting' the transaction, 'adjudged $126 to plaintiff, and costs.
    The testimony was conflicting. Ingle testified to the representations alleged in the petition as having been made to him by Dean; that he relied upon them, and made the trade in ignorance, etc. This was corroborated by other witnesses. It was proven that the land was overflowed bottom land, sixteen miles from a railway, unfit for a residence, had no improvements, unfit for tillage; was of very little value, and that Dean knew it.
    Witnesses testified to declarations by Dean' about the trade, sustaining the charge of fraud on'his part; there was testimony tending to show that Dean had the aid of others in producing upon Ingle the belief as to the value of the land. There was testimony, however, in behalf of defendant, tending to show facts that, ordinarily, would have' put a prudent man upon his guard.
    There was testimony as to the transaction after the suit pleaded by defendant; as to this, too, the testimony is conflicting; also testimony as to rents of the Groesbeeck houses. Plaintiff acknowledged receiving $100 on the trade, and $25 had been paid on the Cook note for plaintiff.
    The demurrer was not passed upon by the court.
    The assignments of error are:
    1. The court erred in refusing to grant a new trial.
    2. The court erred in refusing to arrest the judgment.

      F. W. Munce, for appellant.

      W. II. FrisMe, for appellee.
   A. S. Walkee, J.

The errors assigned only put in question: (1) the petition as on general demurrer; (2) the charge to the jury; (3) the sufficiency of the testimony to sustain the verdict; and (4) the sufficiency of the verdict to sustain the decree.

1. The petition alleges representations by defendant to material facts, constituting an inducement to the contract; relied on by the plaintiff; not within plaintiff’s knowledge; and owing to the remoteness of the situation of the land, plaintiff could not examine it, but was induced to rely upon the representations by defendant; that the representations were false; an offer at once on discovery of the facts by plaintiff to restore the land and money received; refusal, etc.

In the absence of special exceptions, these facts were sufficiently alleged, and they would be ground for equitable relief, by rescission. Adams on Eq., 176 and note, and authorities; Story’s Eq. Jur., §§ 192-200; Jackson v. Stockbridge, 29 Tex., 400; Mitchell v. Zimmerman, 4 Tex., 82; Wintz v. Morrison, 17 Tex., 372.

2. There were no objections taken to the charge of the court, nor were instructions asked by the defendant. While the charge is not as full as may have been desirable under the range of testimony under the pleadings, there is no error noticed in its terms or legal effect. For mere deficiency in the charge, not noticed by the party affected, or likely to be affected, by such omission, the appellate courts do not reverse. It is presumed that the charge was satisfactory when given, and that parties are at that time the best judges of what issues are material, and what form of instructions are best adapted to aid the jury in reaching correct results upon the testimony as actually before them.

[Opinion delivered May 10, 1880.]

3. The verdict has testimony to sustain it. The main allegations in the bill were well supported by evidence. There was conflict in some details; and testimony which, if believed, may have justified a verdict for the defendant. In cases of conflict the jury is made the tribunal whose act is conclusive except in clear cases of abuse. The greater part of the vigorous argument of appellant is directed to the sufficiency of the testimony. The answer is that there "was conflicting testimony and the jury could determine which witnesses to believe.

4. The verdict ascertaining “the damages and rents to the amount of $126” seems to have been made upon the testimony and without regard to the allowed offset of $125, recognized in the pleading, and clearly shown by the evidence as having been received by plaintiff on the contract from defendant. The plaintiff has offered to correct the error and -remit the excess of $125, so found. The rights of the parties will be attained under the facts found by the verdict by reversing and rendering the judgment so as to conform to this correction. Judgment will be rendered "as below, but for $1 damages; costs of appeal taxed to appellee.

Beversed and rendered.