text:
    L. C. Jury v. Susan B. Shearman et al.
    (February 7, 1880.)
    Substituting lost papers in a suit — Depositions — Statute ■construed.— When depositions on file in a cause pending are lost or destroyed, they may be substituted under the provisions of the statute. P, D., arts. 4969 and 4970.
    Appeal from McLennan county. Opinion bv Walker, J.
    Statement.— December 11, 1873, Jury brought suit in the district court of McLennan county to subject certain lands described in the petition to the vendor’s lien.
    The facts relied on are, that in 1856 one Ben. Cage sold the lands to one A. E. Handley, who executed his obligation for the purchase money. That Handley died leaving a widow, Susan, who subsequently married Shearman, and a daughter, Eliza, who married Cooper, all of whom were made defendants in the suit. That the administration on Handley’s estate wTas closed and the property distributed; that September 28, 1862, after the marriage of the widow Susan, and in her husband’s absence in the Confederate States army, she had executed to Cage her separate note for $821, the balance then due on the lands; that during the continued absence of her husband in the army she had acted as a feme sole, and had managed her property as such; and that the lands had been the homestead of the deceased, Handley, of his widow, and of the family formed by her second marriage; and that but for her renewal of the note Cage would have enforced collection, etc.
    The defendants excepted to the petition and pleaded the coverture of Susan Shearman, September 28, 1862, when she made the note to Cage; denied that the note was for balance of purchase money, and alleging payment of the purchase, etc.
    It seems that all the papers in the cause were, destroyed by fire. The pleadings were supplied by copies by consent.
    May 7, 1875, the cause was tried. On the day of trial counsel for plaintiffs filed a motion to substitute the depositions of Ben. Cage taken in the case and lost or destroyed by fire. The motion was supported by the oath of counsel and accompanied by an affidavit as to the substance of his depositions by witness, bearing date February 1, 1875, and made in De Witt county, Texas.
    On same day the defendants filed a motion to exclude and strike from the file the paper “¡mi-porting to be the substance of the depositions of Ben. Cage,” because, 1. There is no authority of law for the use of &x parte affidavits as evidence in the trial of causes. 2. Because the statement is not substantially the same as the deposition'. 3. Because it shows that there was ample time to have retaken the depositions of the witness.

      On same day another motion was filed by defendants, in which they asked the court to refuse and to overrule the motion of plaintiff to substitute Cage’s depositions, because, 1. There was no sufficient reason given for granting it. 2. There is no law providing a mode for the substitution in manner and form as asked by plaintiff.
    These objections were filed but a few minutes before the trial, and plaintiff’s counsel had no notice until he had announced ready for trial. Bo formal action appears to have been taken upon any of these motions.
    On the trial plaintiff read in evidence the note made by Mrs. Susan Shearman September 28,1862. It "was admitted that at the date of the note she was a married woman. The plaintiff “ offered as evidence to the jury the substituted depositions of the witness, Ben. Cage;” the paper offered being Cage’s sworn statement of the substance of his depositions which accompanied the motion to substitute. Which being objected to by defendant’s counsel (as stated in the statement of facts), IS was excluded by the court upon the ground that the deposition of said witness could not be substituted.”
    There was no other testimony. The court instructed the jury that as the note sued on was executed by a married woman, and there was no evidence as to its consideration,' they should find for the defendants.
    Plaintiff asked a new trial because of the erroneous exclusion of the substituted depositions of Cage, and because of surprise in such action of the court, alleging a former practice in the district courts to substitute depositions in the mode attempted in this case, and that plaintiff’s counsel had no notice of objections until he had announced ready for trial. The motion was overruled and plaintiff appealed.
    The questions arising upon the record, assigned as error and discussed by counsel, are, 1. The exclusion of proof of the depositions in evidence. 2. Overruling the motion for new trial for same reason and on ground of surprise.

      The testimony of Cage was material in connecting the note made September 28, 1862, with the sale of the land to the husband of the defendant in 1856, and her subsequent occupation of the land as a homestead while a widow and after her second marriage.
    It is not insisted that the lost depositions of the witness, Cage, were substituted under the general power of courts at common law to supply lost records. It is, however, insisted that the statute (P. D., arts. 4969 and 4970) gives the power to substitute such papers, and that it was literally complied with, so that plaintiff was entitled, as of right, to use the affidavit as substituted for the original depositions.
   Opinion.— The statute (art. 4969) provides that when “ the records and papers or any part thereof appertaining to the proceedings in any court in this state may have been or may hereafter be lost or destroyed,” . . . “ when (such) copies cannot be procured, then the contents of the records or papers so lost or destroyed may be- established by other proof at the trial of the cause, so that such loss or destruction shall work no injury or alteration in the rights of the parties concerned.”

Article 4970 provides the mode of proceeding: “Whenever any such loss . . . may occur, any party to the proceedings may file a motion in the cause, which shall be verified by oath, setting forth the loss or destruction, and, when certified copies cannot "be produced, the substance of the contents of the writings lost or destroyed, and the cause shall then proceed in the ordinary way.”

The term “ papers ” used in the caption and in the body of the act, and the more general term “ writings,” are extensive enough to include depositions on file in a cause pending. In this case certified copies of the depositions did not exist. Counsel, proceeding under the directions of the law, filed a motion in the cause, verified by his oath, setting forth the loss and destruction of the depositions and the substance of the contents of the writings lost. This being done, the statute directs that the cause “shall then proceed in the ordinary way.”

Upon the trial, plaintiff, having satisfied the conditions prescribed, was entitled to establish by proof the contents of the depositions so that the loss should work no injury.

We do not understand the statute to confer upon “substance of the lost document^ accompanying the motion to substitute, the dignity and force of the original by force of the mere- filing the same. The right is secured to proceed to prove, by parol, examined copy, or by any competent proof, the contents as evidence.

But the affidavit and accompanying substance of the depositions was not offered as a predicate for the proof by other testimony of the original, but as the substituted, depositions, and it was rejected by -the court because or “ upon' the ground that the depositions of - said witness could not be substituted,”

The ruling of the court excluding the documents offered as, or instead of, and supplying the lost original, was not in itself erroneous; but the further ruling at the time made, that the depositions could not be substituted, may have, and doubtless did, prevent further effort to prove the contents or produce evidence supplying the loss. .We do not think that counsel for- plaintiff, upon such announcement by the court, endangered the rights of his client by a failure again to formally tender the rejected papers as a predicate, when it bad been,already announced that it would be unavailing to secure the testimony. We may suppose that plaintiff could have produced evidence as to contents, etc,, had further investigation been allowed.

The result of the exclusion was to deprive the plaintiff of the testimony of the witness. Injury was suffered by the loss or destruction of the original in-that, though the statute may have been complied with, the right to prove the lost testimony of Cage was denied.

The second ground in'the assignment of error — the surprise at the ruling of the court; ignorance of the exceptions before his announcement, etc,,— we do not think adds materially to the strength of the appellant’s case.

It does not appear but that counsel for plaintiff knew of defendant’s objections to the proceedings to substitute the depositions before the trial was entered, having notice by the time he had.announced ready.

We think action upon the defendant’s exceptions to the testimony should have been invoked before going into the trial, and upon an adverse ruling plaintiff should have applied for a continuance to again obtain the depositions.

But as the plaintiff, by the ruling of the court, was deprived of a statutory right to the testimony upon which his case rested, we regard the ruling causing the injury an error such as to require a reversal of the case. The ruling held error was the decision.against the right to substitute, the effect of which was to deprive plaintiff of his testimony.


source: Caselaw Access Project

license: Public Domain

text:
    F. Schultz v. F. F. Spreeain.
    (Austin Term, 1880.)
    Landlord and tenant —Sale or rented land pending the lease.—In sales for partition, and made in partition proceedings, • the purchaser takes all the interest of all the co-tenants in the land, the subject of such proceedings, and becomes entitled to the full ownership in the lands and of all future payments of rents thereon, as against all the parties to the partition suit.
    Appeal from Washington county. Opinion by Walker, J.
    Statement.— This cause came up in an agreed statement of the case, under article 1516, Paschal’s Digest, from which it appears:
    1. That on the 12th day of November, 1873, the appellee applied to and obtained from a justice of the peace of Washington county a distress warrant, regular in form, and caused the same to be levied on three bales of cotton of the value of $175, the property of the appellant, upon a claim for the rent of thirty acres of land, of which the appellee was the owner, and which were occupied by the appellant for the year 1873; that the distress warrant proceedings were regular and in due form, and that the cotton was replevied by the appellant with 0. A. Kieke and B. H. King as sureties.
    2. That on the 5th day of January, 1874, the appellant filed his petition in the district court of Washington county, the court then having jurisdiction of the amount claimed, setting up his claim for $150 for the rent of said land, and alleging the issuance and lev}7 of the distress warrant on the cotton of appellant, and the replevy thereof; the cause was regularly continued in the district court until the year 1876. . . .
    3. That afterwards the cause was, by an order of the district court, duly transferred to justice’s court for trial, where the same was tried, and a judgment was duly rendered for the appellee for $150 and interest thereon from January 1, 1874, with a foreclosure of the landlord’s lien on the cotton levied on and costs of suit.
    4. That by proper proceedings the case was removed to the county court of Washington county for trial on the merits, and that on the 20th day of September, 1877, the case was tried, and, a jury being waived, judgment was rendered for the appellee against the appellant and his sureties.
    5. That the appellant moved for a new trial, which was refused, and gave notice of appeal and duly executed his appeal bond.
    6. That this agreed statement of the case, together with the statement of facts, the judgment, appeal bond, assignment of errors, and cost bill, shall constitute the record in the cause, and none of the other proceedings, all of which were regular, need be copied.
    The facts agreed upon are as follows: The thirty acres of land, the rent of which is the subject of controversy in this suit, were originally the property of C. A. Kieke and his wife, Anna Kieke. Anna Kieke died in the year 1862, and in April, 1871, Louis Tesch and others, her children and heirs, brought suit in the district court of Washington county, where the land was situated, against her surviving husband, 0. A. Kieke, to recover her community estate and to have partition thereof, including the aforesaid thirty acres. The judgment of the court fixing the rights to the parties to said suit was rendered October 30, 1872, which was amended November 22, 1872, when commissioners in partition were appointed, who, in January, 1873, set apart to 0. A. Kieke in severalty the portion of the estate decreed to him, and reported that that portion allotted to the heirs of Anna Kieke, deceased, which included the above thirty acres, wrns not susceptible of partition, and they recommended a sale to effect a partition between them.
    The report of the commissioners was confirmed by the court March 4, 1873, decreeing to O. A. Kieke the portion of the estate allotted to him, and ordering sale by the sheriff of the portion allotted to the plaintiffs, Louis Tesch and others, for the purpose of making a partition among them.
    Kieke had the use, enjoyment and rent of the portion allotted to him for and during the year 1873. The sale of thé portion allotted to Tesch and others was duly made by the sheriff in obedience to said orders on June 3, 1873, and at such sale the plaintiff became the purchaser of said thirty acres, and received the sheriff’s deed therefor June 10, 1873. The defendant was, at the time, in possession of the premises, and was duly notified by the plaintiff of the purchase and of his claim to the rents. By the custom of the country rents of farming lands, which these were, are payable annually at the end of the year or on the gathering of the crop, whether payable in money or in a portion of the crop. The amount claimed and recovered by the plaintiff by the judgment is the reasonable rental value of ■ the premises for the year.
    ■ The defendant had rented sixty-five acres of ground, in-eluding these thirty acres, from O. A. Kieke in September, .1872, for the year 1873, by a verbal contract, agreeing to pay him a part of the crop to be raised thereon, to wit: One-fourth the cotton and one-third the corn and fodder, payable out of the crop when gathered. Kieke was, at the date of said contract, in possession of the premises, claiming ■ them as his own separate property. The suit of Tesch and others against him was, however, pending at the time. In the judgment in that suit Kieke was charged with the rents of the community estate, including these thirty acres, down to the close of the year 1872, but not for any part of the year 1873. The defendant refused to pay the rent of the thirty acres to the plaintiff, and subsequently did pay the rent to Kieke in corn and cotton in accordance with their contract.
    The distress proceedings were all regular and correctly stated in the petition, and it is admitted that the judgment of the court below was correct and should be affirmed, unless, upon the foregoing facts, the defendant is protected by this payment of the rent to Kieke.
    Judgment was rendered September 20, 1877, for plaintiff for §196, and the further sum of §18.70, being ten per cent, damages on the judgment in the justice’s court, and costs, etc.
    The defendant appealed, assigning errors: 1. In rendering judgment for plaintiff on the evidence in the case, because the defendant rented the land upon which the rent was claimed three months prior to plaintiff’s purchase, under a valid contract with the owner of the land, and to whom the defendant owed and paid the same. 2. In its view of the law of the case, giving judgment for rents in arrears which did not run. with the land and in which plaintiff purchased no interest. 3. In its view of the evidence; the evidence does not support the judgment. 4. In not granting a new trial when if was shown that an erroneous view of the law and the evidence had been taken; and 5. In rendering judgment for ten per cent, damages on the amount adjudged by the justice of the peace.
   Ophtioh.— The first four assignments of error, in connection with the summary statement of the question in dispute, as agreed upon by the parties, that the judgment was correct and should be affirmed, unless upon the foregoing “ facts the defendant is protected by his payment of the rent to Kieke,” present for our consideration the effect of judicial proceedings authorizing the sale for partition, the sale and deed for the land to the plaintiff, as affecting the rents of the land for the year 1873.

The principles controlling the case we regard as elementary and without argument. We hold:

1. The partition proceedings affected all contracts for lease made pendente lite by the defendant Kieke; lessees under him took subject to the rights of the parties to the suit. Schultz’s lease (if valid for over twelve months by parol) was subordinate to the rights of the plaintiff in the partition suit. Lee v. Salinas, 15 Tex., 497, and authorities cited.

2. Kent is a yearly profit on money, etc., issuing out of the lands for the use (3 Kent, 460), and is owing to the owner of the reversion (Id., 463), usually termed the landlord ; this rule obtains as well when a part of the leased lands are sold pending the term as when the whole is disposed of. 3 Kent, 469.

3. The sale of a part of the premises severs, as to that sold, the relation of landlord and tenant as between the original lessor and the tenant. An apportionment follows as a result of the sale without further stipulation. As to that sold the tenant owes rents (or fealty) to the new landlord for that part owned by him (this rule is an exception to that urged by appellant that contracts are not generally divisible). 3 Kent, 469, 470; Greenl. Cruise, title 28, ch. 3, sec. 32; Bank of Pennsylvania v. Wise, 3 Watts, 395, and cases cited.

4. Rents not due at the sale go to the owner of the reversion. A parol contract otherwise has been held inadmissible to control this as the legal effect of a sale of the land. Greenl. Cruise, title 28, ch. 3, sec. 32, and cases cited.

5. In sales for partition, and made in partition proceedings, the purchaser takes all the interest of all the co-tenants in the land, the subject of such proceedings. Plaintiff, by his purchase, became entitled to the full ownership in the lands, and of all future payments of rents thereon, as against all the parties to the partition suit, against Kieke and the plaintiff. Freeman on Co-tenancy and Partition, sec. 548, and cases cited.

6. Whatever may have been Schultz’s rights, had he claimed as against plaintiff the right of paying him. the rent in kind, he did not assert such right. He has placed his defense upon his payment to Kieke, repudiating his fealty to the landlord. 3 Kent, 469, 470; Brown v. Adams, 35 Tex., 450.

7. Schultz was notified promptly by plaintiff of his claim as landlord, and he remained a tenant on the land, not as a trespasser, owing rent to the owner of the reversion; distress by statute is allowed to the landlord against the tenant for rent. P. XX, art. 5028; Mathews v. Burke, 32 Tex., 433. Proceedings for the rent were properly taken against Schultz; Kieke was not a necessary or proper party. He was not liable, either by contract or from actual tenancy.

8. The rents for farm lands being due, as in this case, at the end of the year, or at the gathering of the crop, there were no back rents claimed or adjudged to plaintiff. The rents claimed were not past due at plaintiff’s purchase.

9. But on the theory of apportionment suggested, the evidence shows that Kieke had the rents up to" January 1, 1873; that in that month the land was allowed the heirs of C. A. Kieke, whose rights were conveyed to the plaintiff June 10 of the same year; so that Kieke’s interest could not have extended into the year to any appreciable extent, and plaintiff’s recovery was proper.

10. The record recites that by proper proceedings the case was removed to the county court of Washington county for trial on its merits. From this it will not be assumed that it was by certiorari/ the authority cited is, therefore, in point. The error affects only the irregularity in the judgment to that extent.

For the error imposing ten per cent, damages, the judgment below should be reversed, and the judgment should be entered as below, save as to such damages. Appellee to pay costs of appeal.


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    Judith E. Wintz and husband v. John F. Gordon et al.
    (November 22, 1880.)
    Negotiable note—Bona eide purchases.—No equity can be set up against a bona fide purchaser of a negotiable note.
    Appeal from Guadalupe county. Opinion by Walker, J.
    Statement.— June 13, 1871, Mrs. Wintz, joined by her husband, filed her suit in the district court of Guadalupe county, having obtained a fiat ordering a temporary injunction against John 0. Gordon, sheriff of Guadalupe county, and Mrs. Oliver and Sheffield. The object of the suit was to enjoin, in the hands of Gordon, the sheriff, and to recover the proceeds of an execution then in his hands, issued under a judgment of the district court of the said county, rendered November 20, 1860, in a suit wherein P„ R. Oliver, deceased, was plaintiff, and one C. A. Stuart was defendant. The case had been appealed by Stuart and affirmed with damages. It was alleged that plaintiff was the equitable owner of the judgment; that the note on which the judgment was rendered was her separate property, in Oliver’s hands for collection only; that his executrix and the said Sheffield were claiming ownership, etc.
    June 26, 1871, Gordon, the sheriff, answered that he had made the sale, and had satisfied the execution before the filing of plaintiff’s bill, and without notice of her claim. That upon sale the funds passed to those claiming the judgmeat, and who were its owners, as he was informed and believed, only his own costs having come to his hands. He disclosed that W. E. Goodrich owned a part of the judgment. The injunction was dissolved as to Gordon.
    Plaintiffs amended, making Goodrich a party; seeking recovery of the funds from. Goodrich and Sheffield, Jr. Sheffield answered denying plaintiffs’ title to the judgment, alleging Oliver’s transfer of part of it to J. 0. Sheffield, Sr., and his sale to defendant. Attached to this answer was the affidavit of Sheffield, Sr., also denying plaintiffs’ title, and alleging his own purchase from Oliver, and his sale to the defendant, J. 0. Sheffield, Jr. Sheffield also claimed to have received satisfaction in good faith before the institution of the suit. Goodrich filed a general denial.
    A jury was waived; judgment was rendered for the defendants. The plaintiffs appealed, and assign errors as follows: 1» The judgment of the court was contrary to' the law and the evidence. 2. That there is error upon the face of the record.
   Opinion.— This assignment cannot, without great liberality, be regarded as a compliance with the statute (Paschal’s Digest, article 1591) requiring, on appeal, the appellant to file “ an assignment of errors, distinctly specifying the grounds upon which he relies.” Taking the first assignment as good, and as questioning the sufficiency of the testimony to support the judgment, or rather as inviting attention to the testimony and challenging the judgment of the court upon its insufficiency to grant the relief asked, the record has been carefully examined.

The testimony of the plaintiff herself and of Stuart,, the defendant in the execution, was distinctly to the ownership of the note upon which the Oliver judgment was rendered. The testimony of defendants, however, showed a transfer of the note by the plaintiff, Mrs. Wintz, with assent of her husband, before maturity, to Oliver. The testimony also tended to disclose that such transfer was intended to be only for collection.

The title of the defendants Sheffield and Goodrich, by their purchase in good faith, is unaffected by any fact in .evidence; Goodrich, as a witness, distinctly denies such notice on the trial. Sheffield, in his answer to the bill, denied the title of plaintiffs, and asserted his Iona fide purchase. As there is no testimony affecting Sheffield or Goodrich with notice, the only remaining question is whether their purchase would conclude the plaintiff.

A judgment being the conclusion of the law upon the facts, as between Oliver and Stuart, the proper tribunal had passed upon their relations as creditor and debtor. The process of the court, authorized by the laws of the state, becomes subject to the call of Oliver to enforce this claim. This claim and its incidents resulting from becoming a judgment are subject to sale by Oliver.

In discussing the rights of assignees of a judgment, Baldwin, J., in Wright v. Levy, 12 Cal., 262, argues: “It is conceded that the assignor of the judgment is only the holder of an equity, with the right to use the judgment and the name of the plaintiff to enforce it, and stands in the shoes of the assignor as to all defenses which existed against the judgment between the parties to it. It is like a note assigned after due. Citing Story on Bills, § 220. The judgment is property, which may be purchased like any other property. The purchaser is bound to inquire into the defenses of the debtor. He has the means to do this, but he could not be held to inquire into latent equities existing in the hands of third parties. The law, when it made this sort of property subject to sale, gave it the protection it extends to all other property.”

This rule is said to be recognized except by the courts of Vermont. Freeman on Judgments, sec. 428. The assignees become the owners of the judgment. McFaddin v. McGreal, 25 Tex., 79. The case of Dodd & Co. v. Arnold, 28 Tex., 101, cited by appellant, does not apply to the case where the possession and legal title are parted with by the former owner.

The purchaser of real estate from the holder of the legal title, and without notice of a trust, is protected, although the beneficiary be a married woman; an equal or greater reason would protect the defendants in buying from the apparent and legal holder. Cooke v. Bremond, 27 Tex., 460; Flanagan v. Pearson, 50 Tex., 383.

The appellant, in argument, insists that at least judgment should have been rendered against defendant Mrs. Oliver. The pleadings were not framed for any such judgment. The original petition sought to intercept the funds in the hands of the sheriff. The amendment upon the sheriff’s answer made Goodrich a party, and sought to recover from him and Sheffield, Jr., the sums by each respectively received. The record does not show an appearance by Mrs. Oliver, nor any default against her. Ho attention or importance was attached to her as more than a necessary party' to the bill for injunction. The appeal, evidently, was not taken to reach Mrs. Oliver.

The judgment should be affirmed.


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    Jasper Gibbs and Joseph Halliday v. P. A. E. Mayes et al.
    (March 17, 1880.)
    Homestead — Sufficient description of in pleading.— When the homestead is situated upon a larger tract than two hundred acres and has not been laid off and surveyed, it is sufficient description in the pleadings to use the term “ homestead.” Charges given and refused, in the absence of a statement of facts or bill of exceptions, are not ordinarily the subject of revision upon appeal.
    Same —Sale without consent of wife.—The sale of the homestead without the consent of the wife, and against her will, does not exclude her from asserting her right thereto, although her husband may acquire another domicile and homestead, to the acquisition of which she does not assent, and to the acceptance of which, as her homestead, she persistently protests. Intimation of McAdoo, J„, in Holliman v. Smith, 39 Tex., 361, to the contrary is dictum.

      Ebbob from Freestone county. Opinion by Quinan, J.
   The first objection urged by appellants in their brief is that the general demurrer should have been sustained as against Mrs. Manning’s claim of homestead, and the reasons assigned are: 1. It was too vague. 2. It does not aver what sale was made without her consent and against her will, nor by or to whom the homestead was sold, nor whether it was a homestead in the city or the country. 3. Whether she claimed land or money. 4. It does not identify the land in any way. 5. That while alleging that the deed includes the homestead, and that it was sold without her consent and against her will, she does not aver that she did not sign the deed or that she did not acknowledge it.

A statement of what Mrs. Manning did allege will show that these objections are untenable. -

1. She, with her co-plaintiffs, avers the conveyance to Gibbs, in July, 1863, by Eeuben Manning, of about one thousand six hundred and ninety-three acres of land in one body, and the land is fully described in the deed and the boundaries of it set out by defendants.

2. She alleges “that the homestead of -herself and the said Eeuben Manning, Sr., was and is included in the said deed of conveyance from said Manning to said Gibbs, it being part of the land described in said deed, and that said homestead was sold without her consent and against her will,” and she prays that her homstead right in and to the said premises may be restored and set apart to her, and for other relief, etc.. We think this a sufficient statement of her claim, and we confess we do not perceive how, -without incommendable prolixity, it could be made more ample. That it was necessary for her to allege more specifically what sale was made, or that she did not sign the deed, or that the land was not a town lot, or money, we do not think can be seriously urged.

There can be no more specific description of the homestead, when it is situated upon a larger tract of land than two hundred acres, than that embraced in the term homestead, unless indeed it has been actually laid off and surveyed. The law defines what it is. It is the residence of a family, and includes the house which shelters them, and in the country embraces, if the head of the family has it, two hundred acres of land, and no more.

The case of Anderson v. McKay is cited as an instance of defective allegation in showing “ how and when the property was destined for a homestead.” In that case there had been no actual residence upon the land, and it has, manifestly, no application to the present case.

The second objection is that the special demurrer should have been sustained. It went to the misjoinder of parties and actions or multifarious character of suit. The suit, when brought, was to set aside a conveyance made by Keuben Manning to Jasper Gibbs of land and other property on the alleged ground of fraud, undue influence, old age and imposition.

Manifestly his widow and heirs were necessary parties to that suit. But the appellant’s counsel insist that, a whether their objection would have been good as the pleadings stood previous to sustaining his special demurrer, and striking out the prayer for a rescission of the contract, it was certainly good after that ruling was made.” This is as much as to say that while the pleadings might not, as they first stood, have been obnoxious to the objection of multifariousness, yet they were clearly so when the greater part of the charges and allegations and causes of action stated in them were stricken out.

The result of the ruling of the court upon the demurrers was that the case then stood for trial as one of the Manning’s heirs against Gibbs and Halliday for the recovery of the community interest of Manning’s first wife in the property conveyed by Manning to Gibbs, and of Mrs. Elizabeth Manning for the recovery and setting apart to her of the homestead in the land in controversy. That she had a right in some form to assert her claim in this suit will not be denied. Therfe is no exception to the misjoinder of parties plaintiff. If it should be the consequence of the appellant’s demurrer that she was no longer a proper party plaintiff, yet surely she would have the right to intervene in the suit for the assertion of her homestead rights, and we can see no necessity, and less propriety, in dismissing her at one door when she has an unquestionable right to demand admittance at another. In Clegg v. Varnell, Chief Justice Hemphill says that “ there is not an inflexible rule as to what constitutes multifariousness. Each case must be governed by its own circumstances, and whether multifarious or not must be left to the sound discretion of the court.” In this case the result shows that no injury has resulted to the appellant from the action of the court upon his exceptions, and he has, therefore, no just cause of complaint.

The third objection of appellant is that the verdict is not warranted by the pleadings. What we have said upon appellant’s exceptions to the allegations of- Mrs. Manning is applicable to this objection. Her allegations were, we think, sufficiently specific; and if they were not, if is one.of the properties of the verdict that “ it cures all defects, imperfections or omissions in the petition or statement of the cause of action, -whether of substance or of form, if the issues joined be such as require proof of the facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective cause of action.” Dewitt v. Miller, 9 Tex., 246; 1 Chit. Plead., 712, 722 ; 22 Tex., 409; 2 Tex., 209.

If there were not in her petition a sufficient description of the homestead place she claimed, it is not an objection to the verdict that it supplies the omission. We concur in the statement of appellant’s counsel, “ a plaintiff can get all he claims in his pleadings, and he can get no more.” He can get what he claims, and nothing else. Here she claims a homestead out of some of the lands in controversy, and all that the jury could respond was, “We give you a homestead out of the lands.” And this we think is precisely what the jury have done, and no more. The verdict awards her the Heuben Manning homestead, which the law says is the place of his domicile, and contains two hundred acres of land; and, for further identification, the jury says that Jasper Gibbs now resides on it. This verdict is not only correct, but the only verdict which the jury could render, if satisfied that Mrs. Manning and her deceased husband had a homestead upon the place to which she was now entitled.

It is almost a contradiction in terms to say that the jury could have given her two hundred acres of land anywhere — they could only award her the homestead.

The remaining objections to be considered go to the charges of the court. The charges given and refused, in the absence of a statement of facts or bill of exceptions, are not ordinarily the subject of revision upon appeal, as said by Judge Bell in Bast v. Alford, 22 Tex., 399. The charge of the court appears to be correct, and if it did not so appear, it is the well-established rule of this court that the charge of the judge below will not be revised unless there be a statement of facts in the record; except in the case where the pleadings contain matter which shows that the charge is necessarily erroneous.

And in McMullen v. Kelso, 4 Tex., 237, Hemphill, C. J., says: “ There being no facts sent up wfith the record, it will be unnecessary to examine further the above instruction or the one which was asked and refused. They stand upon the record as abstract propositions; and whether the giving the one or refusal of the other operated injuriously to the defendant cannot be ascertained from the record, and can form no ground for revision or reversal of the judgment.” And again, in Cannovan v. Thompson, 12 Tex., 247, the same judge says: “ As no statement of facts has been sent up with the record, the judgment must be presumed to be correct, and must be sustained.” Some of the charges of the court, it is true, are utterly erroneous and subversive of the law of the land, as repeatedly declared by this court; but there were substantial grounds of defense as pleaded, and if these, or any of them, were supported by evidence, the jury were authorized to find their verdict.

So, in McGaughey v. Bendy, 27 Tex., 534, it is held by Moore, J., that, there being no statement of facts or bill of exceptions, the court will not revise the judgment unless the error in the charge is so glaringly apparent, when taken in connection with the pleadings and verdict, as to leave no doubt that the finding of the jury must have been controlled by the improper instruction which they received from the court.

Testing the force of the appellant’s objections to the charge of the court in the light of these decisions, we are of opinion that they are not well taken. We must assume,in favor of the verdict, that every fact was proven which it was necessary to prove to sustain it, and that no fact was in evidence which would vitiate it. If we admit that, as abstract legal propositions, the charges of the court are subject to criticism, yet we must presume, in support of the verdict, that they were mere abstractions; that there was no proof offered which required they should be given, and it is not clearly made to appear that the giving or the refusal of them operated to the injury of the appellants, even if a statement of facts had been sent up, if that statement failed to show an abandonment by the wife of her homestead, or her acquiescence, in the mode the law prescribes, in the sale of her homestead; if upon these subjects there was no proof, surely the judgment could not be reversed on the complaint of the appellant.

But we are not prepared to admit that the action of the court in giving or refusing charges was necessarily or glaringly erroneous. If it were required for the disposition of this case, we should be inclined to hold that the charges state fairly the law applicable to it. They maintain substantially the proposition that a sale of a homestead without the consent of the wife, and against her will, does not exclude her from asserting her right thereto, although the husband may acquire another domicile and homestead, to the acquisition of which she does not assent, and to the acceptance of which, as her homestead, she persistently protests.

In support of the contrary doctrine we are referred to the case of Holliman v. Smith, 39 Tex., 361, in which Judge McAdoo says: “ The husband is the head of the family. He, not the wife, chooses and establishes the homestead, and when he establishes it as his homestead, whether she be willing or unwilling, it becomes her homestead. . . . When he sees fit to change the homestead and dedicates another, eo instanti his homestead becomes that of his wife and family also.” How, if this be good law, we aslc with becoming deference what becomes of that provision of the constitution which commands that the owner of the homestead, if a married man, shall not be “ at liberty to alienate the same, unless by consent of the wife, in such a manner as the legislature may hereafter point out?” And what effect shall we give to the law made in pursuance of it, which provides that, when the husband and wife have exe cuted a conveyance of the homestead of a family, her privy examination shall be had to the free and voluntary execution of it before the officers authorized by law to take such acknowledgments, and without which her deed is a nullity? It is to be observed, however, that this observation of Judge McAdoo is the merest dictum, and unnecessary to the decision of the case, which was doubtless rightly decided upon the facts. There are some observations of Judge Moore in Woolfolk v. Rickets, 48 Tex., 28, which intimate that the mere declaration of the wife that she did not intend to abandon the old place as her homestead, and had never subsequently consented to it, should not be permitted to outweigh the contrary evidence furnished by the acts and conduct of herself and husband for a long series of years, or regarded as sufficient to disprove the fact that in truth the old place had been abandoned as a homestead of the family, or warrant its recovery by her and her husband when he had sold and been fully paid for it.

But that is, as is said, “ when there is an open and palpable abandonment of one home and a removal to another, and when every action of both the husband and the wife for a series of years indicates that- their removal from their old home was intended to be final and permanent.” But in this case, also, the proof was that the homestead had been abandoned before the sale, openly and notorious!}'.

We understand that a married woman cannot bé permitted to perpetuate a fraud; that, as in. Holliman v. Smith, she cannot be permitted, while in the actual possession to all appearances of a permanent home, to encourage .the sale of a former homestead, and afterwards be allowed to claim it as never intentionally abandoned; but in the present case we assume that, at the time of the sale to Gibbs, Manning and wife were in possession of the homestead; that she refused to join in the sale; that she never in any manner, then or at any time afterwards, whether in the mode prescribed by law or otherwise, assented to the sale; there is no proof of the acquisition, with her consent, of a new homestead. Gibbs must be presumed to have known that Manning’s deed, without her acknowledgment, was insufficient to preclude her from asserting her right to the homestead when she could; he must be presumed to ■ have notice of her intention so to do; and, as applicable to this state of facts, we do not hesitate to express our conviction that the charge of the judge was, to say the least of it, not “glaringly erroneous.”

It only remains to add the judgment is supported by the pleadings, the verdict and the law; that there is no error in it, and it ought to be affirmed.


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    Houston City R’y Co. v. J. J. Dawson.
    (March 23, 1880.)
    Street railway—Damages.— Where a city grants to a corporation the right to use its streets for street railways, and provides in the grant of such franchise that the crossings of streets over those upon which the railway is constructed shall be kept in good order, the company is liable for an injury sustained by a person falling through a defective culvert at such crossings, and is the proper party to be sued. This liability attaches to such company, although under its charter the city may not be liable for injuries resulting from defective streets.
    Appeal from Harris county. Opinion by Walker, J.
    Statement.— March 18, 1875, Dawson sued the Houston City Street Bailway Company for damages for injuries received by plaintiff from falling into a hole left in a culvert in the line of the railway, at the crossing of Milam street with Commerce street, in the city of Houston, January 2, 1875; the defect in the culvert being from the neglect of the defendant, whose duty as common carrier, and using the highway, and under its obligations imposed by city ordinances, it was to keep in good repair. Appropriate averments as to the incorporation, designation of streets, construction and using the railway by the defendant; injury, damages for loss of time, expenses for board, nurse, medical bill, etc., were alleged, etc.
    The company demurred generally, and specially excepted on the ground that, if any cause of action existed, it was against the city of Houston, and not against the said company.
    The court sustained the demurrer in so far as the petition set up a general liability, but held the petition good in so far as it set up a failure in said company to comply with the above provision in the city ordinance, and overruled the special exceptions. There was a verdict and judgment for Dawson for special damages in the sum of $440.
    The charter of the appellant, offered in evidence, provides, in section 3, “That the company is authorized to build such roads on any street within the corporate limits of the city of Houston as may be hereafter agreed upon by the mayor and aldermen of the city of Houston and the said Houston City Railway Company, with the right to use such motive power as may be agreed upon between the company and the city council; ” and in section 8 of said charter it is provided “ That all contracts made and entered into by and between the mayor and aldermen of said city and the said company, or any privileges or rights granted by the said mayor and aldermen of the city of Houston to the said company, shall be, in all respects, binding on the aforesaid contracting parties.” And it is further provided in section 10 of said charter “ that nothing contained in said charter shall annul or. set aside any ordinance or laws of the city council of the city of Houston.”
    The plaintiff read also, in evidence, from the city ordinances enacted by the proper authorities of the city of Houston, June 24, 1871, an ordinance entitled “An ordinance granting the right of way and other privileges on certain streets of the city of Houston to the Houston City Street Railway Company.”
    1. “That the exclusive right of way is hereby granted to the Houston City Street Railway Company, organized under a charter passed by the legislature of the state of Texas on the 6th day of August, 1870, and of which company J. H. Scanlan is president and J. W. McDonald is secretary, with the privilege of laying down, using and maintaining and operating a single or double track railway, and necessary side tracks, turn-outs, turn-tables, etc., for the purposes and uses for which this grant is made, through and over any of the streets, and bridges situated upon the same, in the city of Houston, herein designated, to wit, Commerce street,” etc.
    2. “The said Houston City Street Railway Company shall be required to use said grant in such manner as not to unnecessarily impede travel on the streets named, and construct their road or roads upon grades established, or to be established, by the officers of the city of Houston, and shall, at all times, keep and maintain, in good order, all crossings at the intersection of other streets named, over which their street railway may be constructed.”
    The testimony showed that a, culvert across Commerce street, at the intersection of Milam street with it, was out of repair between the rails of the railway operated by the defendant company, the defect being a broken plank, leaving a hole one foot wide, two or three feet in length, and one and a half feet in depth; that the defect remained for several days, and on Saturday morning, January 2, 1875, about 2 o’clock, plaintiff stepped into said hole and fell, falling upon one of the rails, dislocating his shoulder and bruising one hip, from which injury plaintiff was disabled from his labor at his trade of printer for over two months; was put to expense in board bills, medical attention, nursing, etc. The testimony was, to some extent, conflicting as to the length of time the defect had remained. Two witnesses testified to its having remained several days prior to the injury.
    The court instructed the jury:
    1. = o „ “If satisfied that defendant company undertook to maintain and keep in repair the crossings over the streets run over by its cars, and if it failed and neglected to do so, and plaintiff, without fault or negligence va his part, was injured by falling into a defective culvert on a street crossing, over which defendant’s track was laid, then find for plaintiff such damages as the proof shows he has sustained, such as,” etc.
    2. Was as to contributory negligence.
    3. “ If the proof shows that the crossing was kept in repair, but that suddenly a plank was broken, and defendant, in the exercise of due care and attention, could not have discovered the same, then it may be considered a case of inevitable accident, for which defendant cannot be held liable; on the other hand, if defendant could have discovered the defect by the use of due and proper care, then it does not fall under the head of inevitable accident.” Defendant filed a motion for new trial: 1. Because the court erred in overruling the exceptions to the petition. 2. Error in the charge; and 3. Verdict is contrary to law and the evidence.
    The motion was overruled, and on appeal errors are assigned: 1 and 2. Error in not sustaining the demurrer and exceptions to the petition. 3. Court erred, in the first section and in the last paragraph of the third section of the charge to the jury, in overruling motion for new trial.
    The questions discussed in argument, as raised by the assignment of error, and insisted upon, are:
    1. There is no privity between Dawson and the said company; Dawson’s remedy, if any he had, was against the city of Houston, and not against the company.
    3. The petition does not show a cause of action against the city of Houston, and if said company is liable at all it is by virtue of the above-recited provision in the city ordinance; the company stands in the place of the city, is entitled to the same defenses the city has, and can only be held liable where the city of Houston would be liable.
    The petition, in addition to a careful statement of the facts relied on, and which are given in the statement of testimony above, further alleged “that said injury was caused by the gross negligence and carelessness of defendant in failing to keep said crossing in repair; . . . that said defendant was not only bound by the agreement and ordinance to keep said street crossings in repair, but it was and is bound, as a matter of common right and duty, as a common carrier, using and enjoying, as a franchise, the streets of the city of Houston, and its failure to keep said street crossing in good repair is, and ivas, gross negligence, without regard to its said agreement and the said ordinance, and that thereby plaintiff was damaged as aforesaid.”
   Opinion.—Since the preparation of the briefs by the counsel in this case, the principles controverted by appellant have been discussed, and, in part, recognized. It would seem, however, that to the extent the demurrer was sustained below it was well taken. The duty to keep the section of the streets in repair grew out of the city ordinance conferring privileges and imposing duties upon the exercise of the franchise granted.

In the case of the City of Navasota v. Pierce, 46 Tex., 530, Moore, J., the general rule is recognized “ that where, for a consideration from the sovereign, a corporation or individual has become bound, either by expressed or implied covenant or agreement, to do certain things, such corporation or individual is liable, in case of neglect to perform such undertaking, not only to a public prosecution by indictment at common law, but to a private action at the suit of any person injured by such neglect.”

This rule, under the conditions indicated, would affect, with the duty and consequent liability for neglect of it, a town or city. Id., 531. “ It cannot be controverted, and has probably never been denied, . . . when the charter (of a town or city) confers some franchise or privilege from which profits may be made, apart from its governmental powers, and which might have been granted to a private corporation or to an individual, as well as to the municipality, an individual action may be maintained for damage sustained from a breach of such condition, or through the negligent or improper exercise of the rights conferred by such franchise.” Id., 537.

Under the authority of the case cited, if the charter of the city of Houston, as we suppose it is, in the absence of proof, is “limited merely to the delegation of governmental powers to the corporation, the city would not, under the pleadings, be liable, had it been sued by plaintiff for the injuries for which he has sued the appellant.” But does this immunity extend to the street railway company, or does the city ordinanc'e protect the appellant from liability ?

The city authorities, as contemplated by the charter granted to the “ Houston City Street Railway Company,” had the power to impose, by ordinance, upon the appellant the duty that it “ shall, at all times, keep and maintain, in good order, all crossings at the intersection of other streets with the streets named, over which the street railway may be constructed.” The ordinance so authorized had “the force, as to persons bound thereby, of laws passed by the legislature of the. state.” 1 Dillon on Municipal Corporations, sec. 246, and authorities cited.

The railway company being directly affected by the ordinance, it was, by law, required to keep the street crossings in good order. The city, by its ordinance, added to its contract with the street railway company the sanction of legislation with its consequences. The neglect to observe this ordinance was a violation of law, and the violation in the case made by the plaintiff was the cause of the injury; or, at least, the injury was occasioned by the defect in the crossing as alleged. The city imposed upon the appellant, in connection with privileges granted, a duty which it did not itself owe, other than from its proper exercise of the governmental functions committed to it by the state in granting its charter. To the violation of a duty so arising, the principle as given in the extract above from the opinion in City of Navasota v. Pierce, attaches responsibility. That the city is not liable does not prevent its passing the ordinance with conditions which include, as construed by the courts, liability for non-compliance with the ordinance, or neglect of duty to the public, inv'olved in the undertaking. Directly, and with the force of legislative authority, the city imposed duties and liabilities upon the appellant beyond those resting upon the city. The action arises not from a breach of the contract with the city, but from a violation of law, and damage caused to plaintiff by the unlawful neglect.

We hold, therefore: 1. That the charter and city ordinance, under which the appellant operated, imposed the duty upon it, upon granting it valuable franchises; and that the appellant was bound thereby as to its conduct and duties in operating its railway. 2. That the ordinance, which was a law to appellant, required it “at all times to keep and maintain in good order all crossings,” etc., in which was included the crossing of Commerce street by Milam street, in the city of Houston; and that instead of protecting from liability, the city ordinance imposed a duty and consequent liability upon the appellant. 3. That from the breach from neglect to keep such crossings in good order, an action would lie in favor of any one injured thereby. And that there may be no remedy against the city is not a defense by the appellant to the action brought against it for the same injury, and for which it was liable.

It follows that the petition, so far as sustained, was good, it having alleged facts showing such conditions, breach of duty and damages.

Second. The first section of the instruction, and which is assigned as error, embraced the substantial allegations in. the petition as a ground of recovery. Having reached the conclusion that the petition was good, the charge embodying it was also proper.

Third. The last paragraph of third section objected to is, in its proper construction, as follows: “ If the proof shows that the crossing was kept in repair, but that suddenly a plank was broken, and defendant, in the exercise of due care and attention, could not have discovered the same, then it may be considered a case of inevitable accident, for which defendant cannot be held liable; on the other hand, if the defendant could have discovered the defect by the use of due and proper care, then it does not fall under the head of inevitable accidents.”

In the discussion by counsel this charge and the petition are both criticised for not containing, as a fact or allegation, notice of the defect by the defendant. Had a charge been asked, the court may have given additional instructions as to notice, due and proper care, its absence, etc. The petition does more than allege notice in alleging that “ there was left by the defendant, and unknown at the time to the plaintiff, a hole or opening,” etc.; “ the failure to keep the crossing in repair,” was gross negligence, etc. The testimony showed that the defect was at a public crossing, and tended to show that it had existed for several days before the injury.

The testimony sufficiently sustained the finding upon the want of due and proper care; and such care not having been used, would be equivalent to notice in fixing blame upon the defendant. The testimony supported a finding of negligence and its consequent liability. 2 Dillon on Municipal Corporations, secs. 785, 790, and notes.

Finding no error in the record, the judgment below should be affirmed.


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    J. M. Henderson v. J. J. Jones.
    (No. 3838.)
    Evidence — Fraud.— When evidence is by depositions, and in cases of fraud, the stringency of the rule relating to verdicts is relaxed.
    Appeal from Tarrant county. Opinion by "Watts, J.
    Statement.—The record in this case shows that Kempinskey and Jones are brothers-in-law. The former engaged in selling drygoods at Willsville, Mo., the latter selling groceries, queens ware and fancy goods at Moberly, Mo. These towns are about fifty miles apart. Kempinskey, at the time of the pretended sale, was largely indebted ; in fact was hopelessly insolvent. Several judgments had been rendered against him, and he was being pressed by other creditors. Suddenly he arrived in Moberly with the remnant of his stock, which he pretended he had brought there for the purpose of opening business; but immediately, and without unboxing the goods, Jones pretended to have bought them, and it was so arranged that disinterested persons witnessed the payment of the money by Jones to Kempinskey. The goods were' immediately shipped to Ft. Worth, Texas, in the name of Jones. Kempinskey arrived with a most extraordinary power of attorney from Jones, and, accompanied by his former auctioneer, immediately followed the goods and took charge of them at Ft. Worth.
    This power of attorney authorized Kempinskey to select the place in Texas for the sale of the goods, and to sell the same, either at retail or in bulk, at private sale or auction, and to employ counsel, etc. Kempinskey had been in Ft. Worth in possession of the goods, selling them as best he could, by retail and in lots, for over one month at the time they were seized by the sheriff. Previous to the pretended sale, Jones had been at Willsville and says he examined the stock. After this suit was instituted Jones transferred this claim for damages to a neighbor and friend of Kempinskey. Other badges of fraud" appear in the transcript which it is unnecessary to enumerate.
   Opinion.—■ When the record shows that the evidence passed upon by the court below consisted of the depositions of witnesses residing elsewhere, and that the witnesses were not before the court, then, considering the manner in which these depositions are usually taken, the loose examination and the indifference of the officer in transferring the statements of the witnesses to paper, and the substitution of words by him which he may deem requisite or synonymous with those used by the witnesses, it would seem that the court or jury trying the case would not have any other means for determining the credibility of the witnesses and the 'weight to be given to their statements than those manifested by the record to the revising court. In this class of cases the revising courts ought to relax the stringent rule' applied in other cases, and with greater liberality look to and analyze the evidence upon which the finding of the court below is based.

From a careful examination of the records the conclusion is irresistible that the pretended sale to Jones of the goods by Iiempinskey was colorable and made to hinder, delay and defraud creditors, and that Jones knew the intent with which it was made.

We conclude, and so report, that the judgment ought to be reversed, and judgment ought to be rendered by the supreme court that appellee take nothing by his suit and appellants go hence. •

TLevebsed and bendebed.


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    J. W. Booth et al. v. J. M. Holmes.
    (No. 3597.)
    Citation — Return.—Issued to J. W. Booth and returned served on W. Booth, insufficient.
    Variance.— Petition, citation and service on John R. Favers will not support a judgment by default against John R. Faver.

    Appeal from Wise county. Opinion by Walker, P. J.
    Statement.— This was a suit brought by J. M. Holmes against J. W. Booth, M. W. Shoemaker, FT. M. Crenshaw and Samuel Woody, on a joint and several promissory note. Defendant Shoemaker only answered that Booth was principal in the note, and the other defendants were his sureties, and prayed that the fact as to that allegation be inquired into by the jury, and judgment be rendered according to facts. Cause submitted to a jury; verdict and judgment for plaintiff against all parties. The jury found that Shoemaker was surety, and the judgment was rendered by default as to all others and against them all in accordance with the above verdict.
    The return on citation to J. W. Booth is as follows: “Executed December 6, 1875, by delivering a true copy of the within process to the within named defendant, W. Booth, in person, with accompanying copy of plaintiff’s petition, December 6, 1875.”
   Opinion.— Said service against Booth must be held insufficient under decisions made by the supreme court in Henderson v. Pugh, 46 Tex., 211; Brown v. Robertson, 28 Tex., 555, and Brown v. Marquez, 30 Tex., 77. Also Graves v. Robertson, 22 Tex., 132, and Willie v. Thomas, 22 Tex., 175. It is held in Faver v. Robinson, 46 Tex., 204, that a petition, citation and service on John B. Pavers will not support a judgment by default against John B. Paver. The mere misspelling of a defendant’s name by the sheriff in his return, where the misspelt name is idem sonans with the true name, does not conflict with the rule of certainty. Townsend v. Ratcliff, 50 Tex., 148. The defect in the service being apparent upon the record, the objection may be raised in the supreme court by writ of error. 4 Tex., 49; 2 Tex., 422; 25 Tex., 583, and 28 Tex., 368. The reversal as to one of the defendants has the effect to reverse a judgment wdiieh is entire as to all defendants, although rendered by default, when one or more parties has not appealed. Burleson v. Henderson, 4 Tex., 49; Neil v. Baker, 28 Tex., 345.

Beversed and remanded.


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    John Garner et al. v. Elizabeth Thompson et al.
    (No. 4095.)
    Husband and wife—Community property.— When legal title in land is vested in the community estate of husband and wife, purchasers from survivor after death of wife are chargeable with notice of the community rights of the heirs of deceased wife.
    Separate property.—If husband receive land by reason of his immigration, settlement and residence on his own part such as would, under the law, entitle him to it, independent of his right as a married man, it is his separate property.
    Appeal from Grayson county. Opinion bj’’ Watts, J.
   The certifícate by virtue of which the land was patented to Aaron Henning was issued to him prior to his marriage, as a single man, and an immigrant to and settler in Peters’ colony. In Hodge v. Donald, 55 Tex., 350, the court in effect said that if the husband received the grant by reason of his immigration, settlement, residence, etc., on his own part as would, under the law, entitle him to it independently of the right based upon his status as a married man, then it would be his separate property. Here Aaron Henning was entitled to the quantum of land received in his own right as a single man, and the fact that he married after the issuance of the certificate to him did not enlarge or otherwise affect that right. Appellants also asserted a right to or interest in the land as heirs of Mrs. Henning, based on the fact that after the marriage the office fees and other expenses incurred in procuring the patent were paid with community funds, and also that improvements of considerable value were placed on the land by the common labor of the husband and wife6*. How for the purpose of this appeal it may be conceded that such facts would constitute an equitable charge upon the land in favor of the wife to reimburse her to the amount of one-half of the value of such improvements and one-half of the expenditures. Still the court found that the appellees were purchasers for value and without notice of any such equitable charges. This finding is a complete defense to the assertion of such a claim.

It is the settled doctrine in this state that when the legal title to land is vested in the community estate of husband and wife that the purchasers from the survivor after the death of the wife are chargeable with notice of the community rights of the heirs of the deceased; such notice is thrust upon purchasers by operation of law. He must take notice of the title papers of the land he purchases, our marital rights laws, the existence of the vendor’s family and their rights to the land which he contemplates purchasing. Johnson v. Harrison, 48 Tex., 261.

Equity.— But as to the equitable charges asserted against the land by the appellants, that doctrine has no application; for the purchase for value and without notice of these equitable charges is a complete answer to that part of the case as presented by the petition. Burleson v. Burleson, 28 Tex., 418; Johnson v. Harrison, 48 Tex., 266.

Judgment affirmed.


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    Ford v. Wright et al.
    (No. 1139.)
    Evidence in trespass to try title; presumption in favor of officers.
    Appeal from Guadalupe county. Opinion by Delaney, J.
    Statement.— This is a case of trespass to try title, brought ■ in Williamson county and afterwards transferred to Guada- - lupe county. In the court below, on trial, when the defendant offered in evidence the certified copy of the deed from the sheriff of Bexar county, the plaintiff objected, because the land was in Guadalupe county at the date of the sale, and the sheriff had no authority to sell.
    2. The deed was not properly recorded in Bexar county, and a cop)r from that county was not admissible.
    Objections overruled. It seems the land was originally in Bexar county, but that Guadalupe county was organized in 1846, and the land was in that county.
    When the suit was filed, the land was in Wilson county. Held, the land at the date of the sheriff’s sale was, in all probability, in Guadalupe county; but it seems that it was equally probable that it was claimed by the officers to be ifi Bexar county.
   Opinion.— Every presumption will be indulged in favor of the acts of the officers; and after a lapse of years, when the boundaries have been accurately ascertained, these sales cannot be collaterally attacked. 28 Tex., 105; 11 Tex., 749,

Affirmed.


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    Akinson et al. v. Ward et al.
    Trespass to try title.— Variance between verdict and judgment held fatal. ■
    Appeal from Gonzales county. Opinion by Walker, P. J.
    Statement.— Ward alone sued; the amended petition showed that certain heirs owned jointly with himself the land in controversy, he owning one-third only. He prayed for judgment quieting his title to the undivided one-third interest, and for a writ of possession evicting defendants from the premises. The verdict was rendered in favor of Ward alone, and upon the verdict judgment was rendered in 'favor of Ward and the heirs and joint owners with Ward.
   Opinion.— Held, a judgment of this character was not warranted by the verdict. It was not authorized under either the petition or the verdict.

The plaintiff Ward only was entitled to recover. The trial was had under the Ee vised Statutes, and under the allegations of the petition Ward alone could recover his own individual one-third. It was held in Stovall v. Carmichael, 52 Tex., 390, that before the Ee vised Statutes, if the tenant in common instituted a suit for trespass to try title for recovery in his own behalf of an undivided interest, he wrould be entitled by a judgment in his favor to no more than to be placed in possession with defendant. Since the Eevised Statutes, however, one can only recover his portion as sued for and distinctly stated in the petition and pleadings. See Grothaus v. De Lopez, 57 Tex., 670.

Ee VERSED AND REMANDED.


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    Joseph Peters Furniture Co. v. H. M. Dickey.
    (No. 403.)
    Subsequent attaching creditors, rights of; intei-venor must cite ail parties interested.
    Appeal from Wise county. Opinion by Delaney, J.
    Statement. — Appellee originally instituted this suit against J. W. Young on a promissory note, and made affidavit and executed bond for an attachment, which was levied on a stock of furniture as the property of Young. Afterwards the Joseph Peters Furniture Company filed a plea in reconvention in the above suit and had Young cited. Upon a trial in the original suit the court rendered an interlocutory judgment, foreclosing the attachment lien on the property levied on, and ordering the proceeds of the attachment sale, in the hands of the clerk, to be paid over to appellee, the judgment, however, not to be made final until the rights of appellants and other intervenors in the suit were determined.
    Appellants amended their plea, setting up substantially Young’s indebtedness to themselves and- other parties; that said Young was hopelessly insolvent; that appellee was well aware of this fact; that the note sued on was without consideration; that the note was executed, the attachment sued out and levied for the purpose of hindering, delaying and defrauding the appellants and other creditors; that this appellant had a judgment against said Young with an order foreclosing an attachment on the property levied on next after that of appellee, etc. Exceptions were sustained to this answer, and, appellants declining to amend, the suit was dismissed.
    When this case was called in the court below, appellee Dickey, who was the plaintiff in the suit of Dickey ?>. Young, presented a general demurrer and several special exceptions. The general demurrer and two of the special exceptions, second and fifth, were sustained. The point made in both of these exceptions was that at the date of the filing of the plaintiff’s suit against Young the intervenor had no interest in, or lien upon, the goods attached in that suit.
   Opinion.— This raises the question whether a subsequent attaching creditor can intervene in the suit of a previous attaching creditor against the same defendant, and impeach the validity of the previous attachment on the ground of fraud. It seem to be well settled that he cannot intervene and avail himself of mere irregularities in the proceedings. .Drake on Attach., 5th ed., sec. 262. See, also, sec. 273, same author. The case of Peiser & Co. v. Peticolas, 50 Tex., 636, is somewhat in point. This case was affirmed by supreme court, 53 Texas, 24. Mr. Drake, in section 285, cites authorities from many of the states to the same effect.

The petition of second intervenor, Bryan, is like the first; both pray for an injunction to restrain clerk from paying the money to plaintiff, and offer to give any bond the court might require. In addition to the exceptions which the plaintiff had urged against the first intervention, he excepted to that of Bryan because the latter had not caused the defendant Young to be cited. As a general rule an intervenor must give notice to all the parties to the cause, because they are generally interested in whatever claim he may set up. Sayles & B., Pl. & Pr. (3d ed.), sec. 281. But defendant Young had no interest. Ho relief ivas asked against him and no judgment which might be rendered could affect him. All three of the contesting creditors had levied attachments upon his property, and all obtained judgment against him. The property had been sold, and the money was now in the hands of the court. The only question was about the disposition of the fund. I'n that question Young had no interest whatever.

He was not complaining, and we do not think that plaintiff should be heard to object in his name. The judgment is reversed and the cause remanded.

Reveesed and behanded.


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    T. & P. R’y Co. v. Mary Burnes.
    (No. 822.)
    Evidence.—Depositions when on file for more than one entire day before trial commences, no objection to the form or manner of taking can be heard unless in writing, with notice before trial begins ; motions, when disposed of.
    Negligence, gross, defined.
    Appeal from Tarrant county. Opinion by "Watts, J.
    Statement.— On August 12, 1881, appellee brought this suit against appellant, alleging in substance that she is a feme sole and resides in the state of Ohio, and that appellant owned and operated a railroad from Ft. Worth to Baird; was running a great many trains over its road daily transporting heavy machinery and construction material, all of which required great skill and care on the part of appellant for the protection of its servants; and that Frank P. Burnes was a locomotive engineer employed by appellant, and- that on June 17, 1881, he was required to draw a train of freight cars from Ft. Worth to Baird, and while so engaged, and under the orders^ and control of defendant, and while filling the tank with water according to requirements of appellant, three miles east of Baird, at 3 o’clock in the morning, and while very dark, the said Frank P. Burnes was cruelly, wantonly, recklessly and negligently killed by appellant as set forth.
    Appellee alleged that there was a very heavy grade from the water-tank to Baird, and that the road curved within three or four hundred feet of the tank, so approaching objects could not be seen until very close; that the appellant’s yard and side-track at Baird is on a steep hillside, inclining eastward towards the tank; that the appellant negligently and wantonly placed its side-track upon such steep hillside and without proper regard for the safety of its employees; also that the appellant used a dangerous switch known as the split switch, so that any car escaping from the sidetrack could run through the switch on to the main track; that appellant had a number of cars on the side-track lacking brakes and appliances to make them safe; that eleven cars loaded with railroad iron, aggregating one hundred and thirty-two tons on wheels, so placed on the side-track by appellant, which by reason of the want of the proper appliances to make them safe and keep them on the side-track, escaped therefrom and by their own specific gravity ran through the split switch and with accelerating speed down the steep hill ran into the locomotive on which Frank P. Burnes was employed, with such great force as to drive the rails full length through the boiler, thus smashing and scalding him to death — scalding the flesh from his bones.
    Appellee alleged she was a poor woman, not able to support herself; that Frank P. supported her; was advanced in years; claiming §25,000 actual damages, and §30,000 exemplary damages.
    Appellant filed a plea to the jurisdiction (which was after-wards waived), special demurrer to claim for exemplary damages, a general denial, and plea of contributory negligence. Court overruled appellant’s special exceptions, and the cause was called regularly for trial September 11,1882. Jury returned a verdict for plaintiff for §5,000 actual damages and §2,500 exemplary damages. ■ Defendant filed a motion for new trial, which was overruled; but before the court acted on the motion, plaintiff entered a remittitur of §1,500 actual and $1,000 exemplary damages.
    It is urged that the court erred in refusing to suppress the depositions of appellee and her son George Burnes. This motion was filed after appellee had announced ready for trial. The depositions had been on file six months. E. S., art. 2235; also art. 4541, E. S., and art. 1454, E. S.
   Opinion.— When the several provisions of the statute quoted above are considered in connection with rule 23, 47 Tex., 621, it appears with sufficient certainty that, when the depositions have -been on file for more than one entire day before the trial, the motion to suppress the same must be filed and notice given before the case is called for trial, and the motions disposed of before either party has announced ready for trial on the merits. Before announcing upon the merits, the party has a right to have such motions disposed of, so that if sustained, and his evidence suppressed, he can act advisedly in making his announcement. Appellee having announced ready upon the evidence, to which no objection had then been made, and without any notice that any such objections would be urged, could not therefore be deprived of the benefit of that evidence on account of the form or manner of taking.

We believe the court erred in admitting, over the objection of defendant, evidence as to the improvement made at that point after the injury.

As to the charge of66 gross negligence,” the most approved definition of the térra, is that given by Judge Story in his work on Bailments, section 17, and which is generally adopted: “ G-ross negligence is the want of slight care and diligence.”

Upon the evidence as disclosed by the record, the court erred in submitting the question of exemplary damages to the jury.

The correct rule for measuring the damages in this class of cases is the probable amount that the deceased would have contributed to the appellee had he not lost his life by reason of the accident. In determining the amount, the age and probable length of time the mother would live, as well as that of the son had he not been killed in the wreck, and the probability of his continuing to make such contribution had he lived, should be taken into consideration. In respect to the rule for the measure of damages, the charge of the court is such as probably to mislead the jury.

Beveeseb ato eematoeb. •


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    E. W. Morton v. Ft. Worth Express Co.
    (No. 901.)
    Notice.— Where the trial amendment sets up facts showing notice to A,, pending the suit, of the lien of M., the issue should be submitted to the jury, n
    Appeal from Tarrant county. Opinion by Watts, J.
    Statement.— Morton brought this suit against appellee to recover an undivided one-third interest in the land described in the petition and buildings thereon, claiming title by and through a judgment rendered in his favor against Sturgeon, foreclosing the vendor’s lien, and purchase by him thereunder. Appellee claims by deed from Sturgeon dated May 11, 1881, and that Sturgeon obtained title by and from Morton, dated October, 1880, and delivered May 10, 1881.
    Appellant based his right to recover upon the ground that appellee was a purchaser pendente lite and therefore not a necessary party to the foreclosure suit.
    This was denied by appellee, and it was claimed that there was. no pending suit seeking a foreclosure of the vendor’s lien at the time it was purchased from Sturgeon.
    Appellant, by trial amendment, asserted his vendor’s lien against appellee, and sought a foreclosure thereof in this suit, claiming that the president and other officers of appellee had notice of the existence of the lien at the time appellee purchased from Sturgeon.
    November 29, 1883, a trial was had which resulted in a verdict and judgment against appellant. The errors relied upon for a reversal are as to charges given and refused.
    At the time appellee purchased the property from Sturgeon the suit of Morton v. Sturgeon was then pending in the district court of Tarrant county. As then being prosecuted that suit had for its object the dissolution of the partnership, an accounting with reference to the business operations, and to compel a specific performance by Sturgeon of his contract to purchase Morton’s one-third interest in the property. There was no lien asserted by the pleadings and none sought to be foreclosed upon the property in controversy, and no lien was retained upon the property in the deed from Morton to Sturgeon. That deed was made and delivered pending the suit, and this was done in performance of the contract, a specific performance of which was sought by the suit then pending.
   Opinion.—The amended petition by which Morton first asserted a lien upon the property and sought its foreclosure was filed subsequent to the registration of the deed from Sturgeon to appellee, and it was certainly necessary for him. to have made appellee a party to the suit to have affected its rights by the foreclosure decree. As to third parties, the assertion of the lien by the amended petition, and a prayer for a decree of foreclosure, had the same and. no other effect than if the suit for that purpose had been instituted, Peters v. Clements, 46 Tex., 125. Hence, as appellee was no party to that proceeding, the decree of foreclosure against Sturgeon in no way affected its rights to the property.

Considering the recitals in the deed from Horton to Sturgeon, with notice of which appellee is chargeable in law, in connection with the other evidence adduced to that issue, tending to establish notice of the existence of the lien at the time appellee purchased from Sturgeon, the court should have submitted that issue to the jury. And for this error the judgment is

¡Reversed and remanded.


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    Arnold v. Leatherwood.
    (No. 933.)
    Land, sale of for costs while case pending on appeal, void.
    Appeal from Johnson county. Opinion by Delaney, J.
    Statement.— The present case grew out of the case of Arnold v. Caudle, 49 Tex., 527. Mrs. Campbell, nee Mrs. Caudle, the vendor of appellee, was a plaintiff in that case, and appellant was a defendant therein, and appealed the case. Pending the appeal a certified copy of bill of costs was issued by the clerk of the court below against plaintiff in that suit, under which the land in controversy in that suit, and now in question in this suit, was sold by the sheriff and purchased by appellant’s vendee. The question presented is whether the sale of the land made under these circumstances was valid. The court below, in effect, charged the jury that the sale of land, by virtue of the certified bill of costs issued by the clerk pending the cause in which the costs accrued, and under which sale appellant claimed, was void, and this charge is held to be correct. Pasch. Dig., 6012, 6016; 42 Tex., 508; 54 Tex., 374; 56 Tex., 282.
    Subsequently to the above sale, Mrs. Oaudle, joined by her husband, conveyed her interest in the land to appellee. He forthwith filed his deed for record in the proper office, and permitted it to remain therein for some time, when he withdrew it. After about twelve months he discovered his mistake about the record of the deed, when he then had it properly recorded. During this time the case of Arnold v, Caudle was reversed by the supreme court, and all costs of both the lower and the supreme court adjudged against plaintiffs. A final judgment had also been rendered in the court below, upon which an execution issued, and the land was again sold, and again purchased by appellant, who relied, on this title also for a recovery. Judgment was rendered for appellant for one-fourth of the land.
   Opinion.— Held, the court below properly held that there could be no constructive notice, as the deed was not recorded, and also gave a fair and proper charge as to actual notice by appellant of the deed from Mrs. Caudle and husband to appellee. The jury having found against appellant, and their verdict having evidence to sustain it, it will not be disturbed.

Affirmed.


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    I. & G. N. R. R. Co. v. Chas. E. Roth.
    (No. 918.)
    Master and servant.— In case of an injury to an employee of a railroad by the negligence of another employee, defendant’s plea of negligence of a fellow-servant in the course of his respective duties, good, unless the plaintiff could show that the defendant had been guilty of negligence, either in employing or retaining one who was incompetent for the service in which he was engaged.
    Appeal from Travis county. Opinion by Walker, P. J.
    Statement.— This suit was brought by Chas. E. Both against the I. & G-. H. B. B. Co., to recover damages for injuries alleged to have been sustained by him while in the employ of the defendant as a member of the bridge gang, through the negligence, carelessness, recklessness and incompetency of its servants and employees, and while he was engaged in attempting, in obedience to the commands of the duly authorized agents, servants and employees of the defendant, to perform a service not within the line of his employment, in which he was inexperienced, and of the dangers of which he was not advised. Plaintiff filed a trial amendment as follows: “ It is further alleged that the said defendant company was present and acting at the time and place aforesaid, by and through its vice-principals, M. C. Hugent and J. M. Shattuck, who were then and there, to all intents and purposes, principals, and actually representing said defendant company, and duly and fully authorized to exercise all powers and duties incumbent upon defendant.”
    Defenses were general demurrer and special answer setting up the defense of fellow-servant and contributory negligence. ■ Tried by jury; verdict and judgment for plaintiff for $1,000 and costs.
   Opinion.— One of the most controlling questions presented on this appeal arises on. the fifth section or paragraph of the court’s charge, and its correctness or otherwise is distinctly presented by counter-charges which-were asked by defendant but refused. The charge complained of is as follows: “ 5. If the plaintiff was in the discharge of his ordinary duties under his employment by the defendant, and the injury was occasioned by the negligence of one of his co-employees, then if the said employee, from whose act such damage was caused, is shown to have been as careful as ordinary persons would be in such work, then the jury will find for the defendant.” As counter-proposition to this charge the defendant asked instructions, the purport of which was that the burden of proving the facts necessary to charge the defendant is on the plaintiff; said instructions were refused. The instructions asked to be given on this point, we think, are the law of the case. It is a well-established principle of law that for an injury resulting entirely from the negligence of a co-servant, no fault being imputable to the master- in his employment or retention, no liability exists on. his part. See Wood on Master and Servant, sec. 419, and authorities cited. Liability only attaches ■when the master is at fault, and in all cases the burden is upon the servant to show want of care on the part of the master in selecting the negligent or unskilful servant, as well as unskilfulness in the servant; and if it appears that the servant had, or ought to have had, the same knowledge of the servant’s incompetency that the master had, he cannot recover. Id.; H. & T. C. R’y Co. v. Willie, 53 Tex., 327; Price v. Navigation Co., 46 Tex., 535; Robinson v. Railway Co., id., 540; R. R. Co. v. Miller, 51 Tex., 274.

We conclude that the judgment ought to be reversed and the cause remanded.

Beveksed and eemanded.


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    G., C. & S. F. R'y v. W. L. Dorsey.
    (No. 902.)
    Master and servant, does not apply, when..
    Appeal from. Tarrant county. Opinion by Watts, J„
    Statement.— This is an action by the father for damages for loss of services of his minor son, rendered incapable of performing labor or service by reason of personal injuries received while in the defendant’s employ without the father’s consent, and also for moneys expended by the father in his efforts to effect a cure of said son. W. L: Dorsey brought this suit in his own behalf against the defendant at the spring term, 1883, of the Tarrant county district court, and claims $3¿6Ó0 for loss of his minor son’s services and the further sum of $500 expended by him in his efforts to effect a cure of his said son’s injuries.
    The grounds of action are that the plaintiff’s son, A. ¡3. Dorsey, a'minor between seventeen and eighteen years of age, was, without plaintiff’s knowledge or consent, on the 29th day of November, 1882, taken into the employ of the defendant, as night switchman at Bosenburg Junction, a point on the defendant’s line of road; that it was the special duty of plaintiff’s son, as such switchman, to couple and uncouple cars of the defendant, then being run upon its lines of railway, at and through said Bosenburg Junction, and that said plaintiff’s son, while coupling two cars, was caught between them and his shoulder and hand were crushed and maimed between the drawheads and the coupling apparatus belonging to said cars. That said cars and all apparatus used were old, out of repair and of a dangerous pattern, and the defendant was guilty of gross negligence and a total disregard of the life and safety of plaintiff’s son and its other employees, and it was by reason of defendant’s negligence that plaintiff’s said son received the injuries complained of, and that plaintiff’s son was wholly ignorant of the dangerous and defective machinery used by defendant in operating its road; that the couplings and drawheads bad long before gone out of use. That plaintiff’s son had not nor would he ever recover; that plaintiff was entitled to service and hire of his son, worth §75, until his majority, etc. The defendant pleaded: 1. General and special demurrers. 2. The general issue. 3. Emancipation of the son by the father. 4. That the injuries to the said A. S. Dorsey were caused by his own negligence and improper conduct, and not otherwise. At the fall term, 1883, the court heard and overruled the defendant’s demurrers, general (and special) denial, to which ruling the defendant excepted. Cause tried by a jury and a verdict of $1,580 for plaintiff, on which court gave judgment. Defendant moved for new trial, which was overruled.
    The evidence shows that A. S. Dorsey (injured party) was employed by Mr. McGee, defendant’s yard-master, at Bosenburg Junction, on the evening of 29th of Hovember, 1882. About 2:30 A. M., Hovember 30th, A. S. Dorsey (injured party) went out on the Galveston, Harrisburg & San Antonio Bail way Company’s track to pull out some cars to put on Ho. 3 going west on G., H. & S. A. Boad. The first part of the night A. S. Dorsey worked on the track of S. F. B’y Co. There are three railroads at Bosenburg where the accident occurred: G., C. & S. F., G., H. & S. A., and H. Y., T. & M. At the time of the accident he was working on the Galveston, Harrisburg & San Antonio Company’s track and with its train pulling out cars.
    McGee testified that he hired Dorsey, and that as agent for defendant had authority to do so; that he hired him to couple cars on the three roads. The arrangement was that defendant company paid the crew, the Galveston, Harrisburg & San Antonio paid the engineer and fireman, and the Hew York, Texas & Mexican paid one-third of the expenses ; and that it was a part of Dorsey’s duty to go over and couple the Galveston, Harrisburg & San Antonio’s cars, as well as the others on all the tracks. He was hired for that purpose.
   Opinion.— But one question presented by the record will • be considered, and that is: “ The verdict of the jury is contrary to law and is not supported by the evidence in this, that the evidence shows that the plaintiff’s son was injured while serving the Galveston, Harrisburg & San Antonio Bailway Company, and while upon the grounds and while nandling the cars and apparatus of that company. The allegations of the petition are to the effect that the son of the appellee was injured while in the service of appellant,” etc.

From the evidence as given in the statement of facts it will be seen that the injury neither occurred upon appel- . lant’s road nor yard, but on the yard of the Galveston, Harrisburg & San Antonio Railway Company, and that the (kind of) cars he was attempting to couple were not even used by appellant’s road. The court below evidently proceeded upon the theory that the relation of master and servant existed between appellant and young Dorsey, with all its attendant liabilities, whether he was operating upon the one or another of the three different and distinct yards for which he had engaged to serve. McGee, the yardmaster, was in the employ of the three corporations. True, he was paid by appellant, but under the circumstances he was no less the employee of the other companies. In our opinion young Dorsey, while engaged upon the yard of the Galveston, Harrisburg & San Antonio Railway Company, could not be considered as the servant of appellant, and could only look to the Galveston, Harrisburg & San Antonio Railway Company for protection against defective tracks, cars and machinery. Under these facts as presented by the record, neither of these corporations can be held as guarantors of the tracks, cars and machinery of the other. Our conclusion is that under allegations of the petition and the evidence disclosed by the record the judgment has no legal foundation or support, and therefore ought to be reversed and remanded, and it is so ordered.

Reversed and remanded.