author: Quinau, J.—

text:
    F. M. Cairrell et al. v. J. D. Higgs et al.
    (Case No. 865.)
    1. Deed—Subscribing witnesses — Affidavit of forgery—Secondary evidence.—When a deed is offered in evidence, the effect of an affidavit of forgery is to put the party claiming under it upon proof of its due execution, which must be by the production of the subscribing witnesses or one of them, if living, or if dead, incompetent to testify, or cannot be procured, then by proof of their handwriting. Proof of handwriting may be made by one who has seen "the party write, or, having received letters from him purporting to be in his handwriting, has afterwards communicated with him personally respecting them. 1 Greenleaf, 762-769.
    2. Husband and wife — Subscribing witness.—The husband is incompetent to be a subscribing witness to a deed in favor of his wife.
    8. Deed—Subscribing witness.— Where one of the subscribing witnesses to a deed is incompetent to be a subscribing witness, and incompetent to testify, its execution may be established by proof of the handwriting of the other subscribing witness, he being dead.
    4. Registration—Deed—Proof of execution.— The requirements of the law concerning the proof of a deed for registration have no application or reference to the proof necessary upon offering it in evidence on the trial of a cause.

      5. Husband and wife—Competency.—Husband and wife are not incompetent to testify for themselves and in the protection of their own interests.
    6. Practice—Incompetent evidence.— Where the case is tried by the judge without a jury, his having heard incompetent evidence will not require a- reversal of the judgment, if there was competent evidence sufficient to authorize its rendition. Millican v. Millican, 24 Tex., 453; Beaty v. Whitaker, 23 Tex., 529; Melton v. Cobb, 21 Tex., 543.
    Appeal from Husk. Tried below before the Hon. A. J. Booty.
    The appellants brought suit against the appellee J. D. Higgs for the recovery of a tract of four hundred acres of land, and for the rents and use and occupation of the same, alleged in an amended petition to be $1;000. The defendant J. D. Higgs answered, pleading not guilty, and alleging that James E. Higgs (the father of plaintiff Fran cess, under whom plaintiff and defendants both claim), on 7th May, 1858, sold and conveyed the land to M. L. Higgs, the defendant’s wife, by deed of that date, which he files, and that said M. L. Higgs is the owner of the land, and that he is only interested in the land as her husband to control and manage it for her.
    Then the plaintiffs made Mrs. Higgs a party defendant repeating the allegations of their original petition against her with her husband, and by an amended petition alleged that the deed under which defendants claim is a forgery; that Higgs was the tenant of James E. Higgs, and that defendants occupied the land as tenants, and claim rent, etc.
    Mrs. Higgs filed a general denial.
    By an amended answer defendants set up the defense of limitation, and claim compensation for improvements made in good faith to the value of $3,500.
    The case was tried by the judge, the parties waiving a jury.
    Upon the trial Mrs. Cairrell interposed her affidavit in proper form of the forgery of the deed filed from James E„ Higgs to M. L. Higgs. It was agreed that plaintiff and defendant claimed title from the same source, James E. Higgs, The court permitted defendant Jere Higgs, whose name appears as one of the subscribing witnesses to the deed, to make affidavit that Bichard B. Kelly, also a subscribing witness, was dead, to which the plaintiff excepted.
    Defendants then proved by Lawson that he knew Kelly well; had known him for several years; had seen him write but once, but that he had received several letters from him which he acknowledged that he had written to him, and “ that he believed the signature of Kelly to the deed to be his, but would not swear positively that it was.”
    Defendants also introduced Johnson, who testified that he "knew Kelly, had seen him write, and believed the signature to the deed to be his handwriting.
    Both witnesses, Lawson and Johnson, testified that Kelly died in Busk county in 1867 or 1868.
    The court upon this proof permitted the deed to be read. Plaintiffs introduced the testimony of Mrs. Prudence Bamsey, the plaintiff’s mother. She testified she had been the wife of James E. Higgs; was married to him in 1854, and that he died about 1st August, 1858; that Francess Oairrell was his daughter, born in 1855; that one other child of the marriage was about one year old when James E. Higgs died, and that child died at eighteen months old. That at the death of James E. Higgs, J. D. Higgs was living on the land in Busk county; that “ J. D. Higgs lived on the land to keep J. E. Higgs’ creditors from taking of it, he being in debt. He went into possession of the land as a tenant of James E. Higgs; never heard of any one claiming the land but her husband; said her husband, during his life-time, received rent for the land every year; did not know how much nor how many years; that since his death she had received rent for the land in controversy for the years 1857 and 1858, through her agent or attorney; near $70 these two years.”
    She further testified that her husband died in Bossier Parish, in the northern part of1 Louisiana, in 1858; “ that he was at home all the time for six months next preceding his death; had not visited his brother, J. D. Higgs, within or during the year, nor did J. D. Higgs visit James E. Higgs within six months next before his death; that all she knew as to where her husband was for six months next before his death is that he was farming that year; had hands employed; . . . that he was, during the six months referred to, busy at his farm. She said the land belonged to James E. Higgs, and now belongs to Francess Cairrell.”
    This is the material part of Mrs. Bamséy’s testimony, and it is all that was offered against the deed, except what may be considered as arising from an inspection of the deed itself, which was sent up with the record, as the statement of facts says, “for our inspection, to see that one man signed the name of both the Higgses.”
    Defendants then introduced Johnson, who, in addition to what has been stated as his testimony, said that, between the 5th and 10th of May, 1858, J. D. Higgs and James E. Higgs came to his house with a negro boy, which James Higgs offered to sell to him, stating that he had sold his land to J. D. Higgs, and wanting to sell him the negro, so as to get rid of his interest in Texas. Witness could not tell how he recollected that it was between the 5th and 10th of May, 1858, only that he had a blacksmith shop. He. kept books, but could not refer to any items of charge made on that day or in that month, but said he just knew the facts. This witness also stated that he was well acquainted with James E. Higgs before he went to Louisiana; that he, witness, lived about two or three miles from J. D. Higgs in 1858, when the brothers came to his house to sell the negro; that James Higgs at that time said he would take §50 less than the worth of the negro, because he had sold out all his interest in Texas except the negro. Witness said he knew the witness to the deed, Kelly, well, as he had been his overseer for several years, and kept his books; had seen him write often, and knew his handwriting, and was satisfied it was his signature to the deed.
    The court then permitted the defendant, J. D. Higgs, over the objection of plaintiff, to testify as follows: “ That they had been living on the land about thirty years; had made valuable improvements, worth §8,000; . . . that he had. never paid Mrs. Iiamsey, or any one else for her, any rent for the year 1857 or 1858; that Ms brother, James E. Higgs, was at his house on or about 7th May, 1858.”
    The court also permitted, over the objections of plaintiff, the following portions of the testimony of Mrs. M. L. Higgs, taken in answer to interrogatory, to be read: “ She saw James E. Higgs the last time at her house in Rusk county, about the 7th May, 1858, when her husband, J. D. Higgs, bought the land in controversy and paid him for it §500. The deed was made to me; I delivered the deed to my husband, J. D. Higgs, to have recorded after the suit was instituted. . . . My husband and self and family reside on the land.. We have had peaceable, uninterrupted possession for nineteen years under the deed, and have been living upon it, in all, about thirty years.”
    The court rendered judgment for the defendants, and the plaintiffs filed a motion for a new trial, which being overruled, they appealed.
    The assignments of error relied on in the appellants’ brief are:
    1. In overruling the motion for new trial,
    2. In permitting Higgs and wife to testify.
    3. In allowing Johnson and Lawson to testify.
    4. In admitting the deed.
    These several assignments are intended to raise the question of the sufficiency of the proof of the deed from James to Mrs. Higgs, and as to the admissibility of the testimony of Mr. J. D. and Mrs. Higgs in this suit.

      If. G. Bagley, for appellants.

      James U. Jones, for appellees.
   Quinau, J.—

1. As to the proof of the execution of the deed. The effect of the affidavit of Mr. Cairrell, that the deed was a forgery, was simply to put the defendants upon proof of its due execution. That proof must be made by the production of the subscribing witnesses, or one of them, if any, if he be living, but if the subscribing witnesses be dead or incompetent to testify, or cannot be procured, and in other like cases, then secondary evidence of its execution is admissible, and this proof is made by proving the handwriting of the subscribing witnesses. Hr. Greenleaf says there are two modes of acquiring knowledge of the handwriting of another, either of which is universally admitted to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write. It is held sufficient for his purpose that the witness has seen him write but once, and that only his name. The second mode is from having seen letters purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, etc. 1 Greenleaf, 769, 762.

Where the secondary evidence is offered because of the death of the witness, proof, of course, must be made of the identity of the witness and of his death. How in this case, although J. D. Higgs was permitted to prove the death of the witness Bailey, and this was irregular, yet his death was proven by the witnesses Johnson and Lawson, and their testimony to the due execution of the deed was a full compliance with the rule laid down, and in our opinion entitled the defendants to read it in evidence. It is true that J. D. Higgs appears as a subscribing witness to the deed, but he was incompetent to be a witness to its execution, incompetent to testify to its execution, and he was on that ground objected to by plaintiff. It is objected, also, that the proof adduced was not sufficient, as not in conformity to the rules prescribed for the registration of deeds. But it is to be observed that those rules assume to regulate only what shall be required to entitle a deed to be recorded, and have no reference to the proof necessary upon the introduction of a deed upon a-trial in open court. They are properly more rigid, because the proceeding is ex ¡xtrte, and the witnesses testifying are not subjected to a cross-examination.

The deed then being in our opinion properly admitted in evidence, the only evidence adduced to establish its invalidity was that of Mrs. Ramsey, the plaintiff’s mother. And weighing it carefully, we can find in it nothing in our judgment to overbalance the due proof of the execution of the deed. It is true, she says she received rent for the land for 1857 and 1858, through her agent or attorney, but that is not inconsistent with the fact that the deed was executed in May, 1858. There is no pretense that until 7th May, 1858, Mr. Higgs was the owner of the land. The most material fact to which she testifies is that her husband was at home for six months before his death, had not visited his brother that year, nor his brother visited him; that all she knew as to where her husband was for six months next before his death is that he was farming that year, had hands employed, and was busy at his farm. But we are left to speculate whether the farm and the home were at the same place; whether she herself might not have been absent during a brief portion of the time; whether Bossier Parish and Rusk are near or remote, and whether a trip might not have been made during the time from one to the other by James Higgs without leaving an impression upon her memory. Upon this point we think, however, the testimony of Mrs. Higgs, of J. D. Higgs and of the witness Johnson is entitled to greater weight. Higgs and wife both swear to the presence of James Higgs in Rusk county about the 7th May, 1858; Mrs. Higgs giving the incidents then of his execution of the deed, the payment to him of the money, and the delivery of the deed to her, and Johnson testifying to the fact of the offer to sell him the negro boy, his declaration that he had sold out his property in Texas, and other facts to identify the time and place.

There is another portion of Mrs. Ramsey’s testimony which, in our opinion, tends to prove the execution of the deed. She says that “J. D. Higgs lived on the land to keep James Higgs’ creditors from taking it.” How, it would occur to a very simple-minded'person that merely living on the land as James Higgs’ tenant would be a very ineffectual way of protecting it from his creditors, but that if such were the purpose, a conveyance of the land would offer better chances of effecting it, and would most probably be resorted to. In connection with.Mrs. Ramsey’s testimony, we may observe that it is not a little singular that if James Higgs had 'made no conveyance of this land that she, although the proof shows she was the owner of five-eighths of it, made no claim for it, or for the rents of it, from 1858 to the present time, so far as this record discloses.

The deed is sent up for our inspection that we may “see that one man signed the name of both the Higgses.” In relation to this it is sufficient to observe that we have no proof before us as to who wrote the body of the deed; that we cannot say, from an inspection of it, whether James of Jere wrote it; and that if it were "shown that in fact James wrote “ Jeremiah D. Higgs ” to it, as the name of the subscribing witness, that would not invalidate the deed. Ragsdale v. Robinson, 48 Tex., 379.

But it is assigned for .error that the court erred in permitting Mr. and Mrs. Higgs to testify, and we are referred to the case of Gee v. Scott, 48 Tex., 515, in support of this assignment. After a very careful consideration of the judgment of the court in that case, we are strongly inclined to the opinion that it does not support this assignment. The sole question decided in that case is that husband and wife cannot be witnesses for or against each other, and this only upon the ground of public policy; and the opinion does not say, nor do we think it is fairly deducible from the language of the court, that husband and wife are incompetent to testify for themselves and in the protection of their own interests. We are unable to perceive how to permit them so to do would be violative of that policy which has been invoked. Mr. Green leaf thus states the grounds of that public policy: “It is essential to the happiness of social life that the confidence subsisting between husband and wife shall be sacredly protected and cherished in its most limited extent, and to break down or impair the great principles which protect the sanctity of that relation would be to destroy the best solace of human existence.” How, doubtless, to permit husband and wife to testify for or against each other without restriction, to permit them to testify to communications made, or conversations had, or information acquired in the intimacy of connubial intercourse, would be subversive of this policy. And it may be that the bias of affection is more potent than the bias of self-interest to pervert the truth.

But it will be seen from the statement of the testimony of Mr. and Mrs. Higgs, which we have given, that they were each restricted by the judge to proof of such facts as were peculiarly applicable to their separate defenses. Mr. Higgs stated such only as tended to relieve him of the claim .made upon him for rents and damages, and Mrs. Higgs testified to those only which were necessary to support her title. Heither testified to communications made by the other, nor for the other, except incidentally. It is difficult for us to perceive how permitting them to so testify would break down or impair the great principles which protect the sanctity of the domestic relation, or destroy the best solace of human existence. But it is not difficult to see that to deprive them of the right extended to every other litigant, to testify for himself, would be a very effective means for the destruction of their rights of person and property.

But however that may be, we think that without resorting to the testimony of Mr. and Mrs. Higgs, and excluding that altogether from consideration, the judgment is well supported by the testimony of the witnesses adduced who were competent and uni'mpeached. If we admit, therefore, that Mr. and Mrs. Higgs were improperly permitted to testify, it does not follow that the judgment must be reversed.

In Millican v. Millican, 24 Tex., 453, it is said: “ Where a case has been decided by the court without a jury, it is not a ground for reversing a judgment, that the court may have heard evidence which was not legally admissible, if it has no influence on the result, and the case was rightly decided upon evidence which was competent and sufficient.”

In Beaty v. Whitaker, 23 Tex., 529, it is said: “The case was submitted to the decision of the court, and the . judgment having been rightly rendered upon evidence which was legal and proper, though the judge may have heard evidence which was not competent, as it can have no influence upon the judgment, it is not a ground of reversal.”

[Opinion delivered November 26, 1879.]

And in Melton v. Cobb, 21 Tex., 543, the court say: “As the judge sat to hear and decide the cause without a jury, his having heard incompetent evidence, if such was the case, would not require a reversal of the judgment where there was competent evidence sufficient to authorize its rendition. The court would discriminate between evidence which was legal and which was not, giving the former the weight to which it was entitled, and rejecting the latter.”

We conclude, then, that by the testimony of Lawson and Johnson, the execution of the deed from Higgs to Higgs was well proven, and that there is no error in this judgment which requires its reversal, and that it be affirmed.

Affirmed.


source: Caselaw Access Project

author: A. S. Walked, J.

license: Public Domain

text:
    W. T. McAfee, Adm’r, v. W. D. Wheelis et al.
    (Case No. 866.)
    1. Unrecorded lien—Execution sale—Notice.— At the sale of property levied on. under execution, the holder of a note purporting on its face to be for purchase, money for the land offered for sale, announced, in the hearing of bidders present, that such a lien existed. In a suit by the holder of the note to foreclose his lien upon the land sold, the burden of proof was upon him in asserting his equitable claim against the legal title of the purchaser at the execution sale. The levy of the execution being a lien upon the land, in the absence of anything indicating the existence of the purchase money lien, either on the face of the title papers or of record, or possession of property by tenant or otherwise, and it not being shown that the judgment creditor had actual notice of the purchase money lien at the time of the levy, the knowledge of the purchaser at the execution sale, of the lien held by the plaintiff, will not prevent his taking a good title to the land under the sheriff’s deed as against the lien of the note. 24 Tex., 36,5; 48 Tex., 469; 50 Tex., 315; id., 323; 23Tex„, 651; 45 Tex., 527; 46 Tex,, 401; id., 416; 47 Tex., 170.

      Appeal from Rusk. Tried below before the Hon. A. J. Booty.
    December 27, 1873, S. J. McAfee, and W. D. Wheelis purchased of the International Railroad Company, lot Ho. 6, in block Ho. 121, in Overton, Rusk county, Texas. The deed recited the “ consideration of $200 paid ” by the vendees. The deed was filed for record March 19,1874. March 20, 1874, Wheelis executed to McAfee an obligation as follows:
    “$457.95.
    “ One day after date I promise to pay S. J. McAfee the sum of $457.95, currency, being part of the purchase money for my interest in lot six (6), in block one hundred and twenty-one (121), in the town of Overton, Rusk county, Texas. My interest in said property being bound for the payment of this note, bearing interest at ten per cent, per annum until paid. March 20, 1874.
    (Signed) ' “W. D. Wheelis.”
    Hovember 9, 1874, J. S. Roberson et al. obtained a judgment in the district court of Rusk county against Isham Clark and W. T. McAfee. From this judgment the defendant McAfee appealed, the said W. D. Wheelis being surety on the appeal bond. " The case was affirmed October, 1875, and judgment rendered against McAfee and his surety, Wheeiis. The mandate was filed February 12, 1876, in the district court. ,
    April 27, 1876, execution was issued against the defendants and the sureties on the appeal bond. The execution was levied May 12th on an undivided half interest in the said lot Ho. 6, block 121, in Overton. June 6th the lot was sold. On the day of sale proclamation was made that “ there existed against the lot a note for the balance of the purchase money due the estate of S. J. McAfee.” At the sale Joseph H. Still became the purchaser for $100. Deed was executed to Still, and it was filed for record June 10, 1876.
    ■ July 24, 1876, W. T. McAfee, who had become the administrator of S. J: McAfee, brought suit in district court of Rusk county against W! D. Wheelis, on the obligation made by him above stated ;■ seeking, also, to subject the lot, or one-half interest therein, to the payment of the debt, alleging the vendor’s lien, etc.
    In the record there is no evidence that citation was ever issued or served upon defendant Wheelis; nor did he ever appear or plead.
    September 4, 1876, Still, the purchaser, intervened in the suit, setting up his purchase of the interest in the lot sought to be charged with the lien.
    Plaintiff resisted the intervention by Still, excepted to its sufficiency, and pleaded that the intervener was a purchaser with notice of the lien.
    Amendments were made to meet exceptions until the pleadings on the part of plaintiff contained a full and c^ear statement of the facts relied on, charging that Still was a mala fide purchaser, and that no lien attached to the lot by the judgment, levy or sale under which Still claimed.
    Still, in his amended petition, fully alleged the facts relied on by him; also denied the lien, and expressly denied notice of the lien, on the part of the plaintiffs, in the case of Robertson et al. v. Clark & McAfee et al Intervenor also prayed that Augustine McAfee, the widow, and Sarah and Ida, minor children, and who were the heirs of plaintiff’s intestate, be made parties, and that a special guardian of the minors be appointed, and that, the lot be partitioned, the remaining half interest in the lot being in the estate of S. J. McAfee.
    Bo citation to the widow and children of the intestate appears in the record.
    Application for continuance was made by plaintiff, supported by the affidavit of the attorney of record, for want of the testimony.of Wheelis. As the affidavit did not explain why it was made by the attorney, nor did it state that the testimony was expected by the next term, it was properly overruled.
    On the trial the plaintiff read the note in evidence, and showed that notice oí the claim had been given on the day of the sheriff’s sale, and that intervenor had actual notice at his purchase.
    Still, the intervenor, read in evidence the deed from the International Eailroad Company to McAfee and Wheelis; proved that Wheelis was surety on an appeal bond in case of Roberson et al. v. Clark et al.; the affirmance of the judgment below and judgment against Wheelis as surety; execution and levy May 12, 1876, of the execution on the lot -No. 6 in block 121; sheriff’s deed of date 6th June and recorded 10th June, 1876. Still acknowledged that notice had been given him the day of sale of plaintiff’s claim, and he testified that he had bought and paid $100 for the one-half lot at the sheriff’s sale.
    -Intervenor also called attorneys for plaintiffs in the suit of Roberson et al. v. Clark et al., who testified that they ■were .ignorant of the lien of the plaintiff at the time of the judgment, issuance and levy of. the execution. It was in evidence that plaintiffs resided in Utah. One Barton, of the plaintiffs, was not called as witness.
    On this state of the pleadings and evidence the court rendered judgment for plaintiff and against Wheelis for $229.0S and costs, and in favor of intervenor for an undivided half of the lot. Partition between intervenor and the widow and children of S. J. McAfee was awarded and commissioners appointed.
    Motion by plaintiff for new trial was overruled, and he appealed.
    The errors assigned are:
    1. Failure to render judgment for foreclosure, etc., against Wheelis; and
    2, 3 and 4. Complain of judgment in favor of the intervenor, insisting that he had notice, and that the judgment and levy under which he bought were not a lien.
    5.. .Overruling application for continuance; and
    6. That the amount of the judgment is less than that proved.

      Gould <& Bagley, for appellant.

      tTones c6 Wynne, for appellees.
   A. S. Walked, J.

The first error assigned is not well taken.- The defense interposed by the intervenor, if sustained, would prevent the court from ordering the sale of the lot. Still was a necessary party to the suit for foreclosure, and he had the right to make any defense he could against the enforcement of the lien. Wheelis by his default nor otherwise could affect Still’s right, to protect his title. Byler v. Johnson, 45 Tex., 509; Preston v. Breedlove, 45 Tex., 47.

The second, third and fourth assignments raise the inquiry whether, under the facts pleaded and in evidence, there passed to Still, by his purchase, a title free from the lien held by plaintiff. Still having actual notice of the lien, the title must, if at all, be maintained by the lien fixed by the levy of the execution upon the lot, in favor of the plaintiffs in the judgment and execution.

The want of notice, as an affirmative fact, was not established by testimony on the part of Barton, one of the plaintiffs. If such proof on the part of Still was necessary to his protection, then his title was not made out.

Referring to the transactions relied on as establishing the lien upon the lot claimed by plaintiff, it is manifest that the legal title to one-half interest in the lot vested in Wheelis, on December 27, 1873, by the deed to McAfee and Wheelis. The consideration — §200 — is acknowledged to have been paid. There remained no equity in the vendor. Both legal and equitable title passed in the sale and deed to the lot. What our courts term the “superior title,” remaining in the vendor until the purchase money shall be paid, is only recognized where the deed shows an express lien for the purchase money, or when at the time a mortgage has been executed by the vendee. Peters v. Clements, 46 Tex., 114; Davis v. Roosevelt, 49 Tex., 463; Burgess v. Millican, 50 Tex., 397; Baker v. Compton, Tyler term, 1879, opinion by Gould, Justice. This distinction has been often recognized betweencases where the relation between the vendor and vendee to the land is dependent upon the payment of the purchase money, and those where the relation is clearly established, and the right to enforce the payment of the purchase money, or the vendor’s lien, remains to the vendor — not as an estate in the land, but as a security for the debt. In the former cases limitation does not run as to the debt. In the latter the debt is barred, the lien is lost. In the former the right to enter by vendor, upon failure by the vendee to pay remains; in the latter only a right of action to subject the land. Whether in the former the holder could assign his estate so as to give the assignee the like power of revocation is not material, but in the latter case the assignee would take only the debt and its security.

It may be doubted whether the note declared on is in any sense a vendor’s „ lien note. It never was given to the vendor, nor executed to McAfee instead of to the vendor (as in Cushman v. Flanagan, 48 Tex., 241). It was not contemporaneous with the purchase. The title in the lot between its purchase and the date of this note is, from the evidence, presumed to have been vested in McAfee and Wheelis. The purchase money for the entire lot was only $200. The note was for $457.95. It is not explained, why or how this sum could form part of the purchase money when the whole lot only cost the smaller sum.

Whether the courts will ever raise an implied lien in the presence of an express contract; or, where the parties “ have carved out their own security,” they will' or not be left to that selected by them, need not be discussed — there being no evidence other than the note showing its connection with the purchase of the lot, or otherwise showing facts from which the vendor’s lien would be implied.

We regard the obligation sued on, in the absence of other testimony, as a lien only, and not evidencing any estate in the payee. ■

■ Being a lien from its terms, it is subject to the conditions attaching to a regular mortgage; as to creditors and purchasers without notice, it would be void, unless recorded. Pas. Dig., 4797. The levy on 12th May, 1876, was upon the half of the lot when the' legal title thereto was in Wheelis. The levy fixed a lien upon the interest of Wheelis, and free from McAfee’s lien, unless the plaintiffs in the execution were chargeable with notice of his lien or had notice.

There was nothing on the face of the title papers revealing its existence. There was no possession by tenant or otherwise suggesting inquiry — no neighborhood rumor directing to the facts. In short, there is no evidence affecting the judgment creditors with notice, unless the law presumes it, and throws the burden of proof upon the party specially denying notice to prove its non-existence as a fact.

In McAlpine v. Burnet, 23 Tex., 651, this question is discussed, Roberts, Justice, saying: “Thequestion is, Must the last vendees, Hamlet and Perry, assume the burden of proof, and allege and prove that they are hona fide purchasers for a valuable consideration paid before notice of the lien; or must McAlpine & Co., to follow their lien, allege and prove that they (Hamlet and Perry) had notice, or had not paid a valuable consideration for the lot? We are of opinion that the burden rests upon the party alleging the lien. They are. seeking to set up and enforce a tacit equity against persons standing on a legal title complete and fair on its face; and, therefore, they must assert and establish the facts which constitute their equity.” See, also, Barnes v. Jameson, 24 Tex., 365; Willis v. Gay, 48 Tex., 469; Robertson v. Guerin, 50 Tex., 323; Rawles v. Perkey, 50 Tex., 315.

The principle is only the elementary rule that the burden of proof is on the party alleging the fact. 1 Greenl. Ev., sec. 74.

Still having exhibited on the trial the legal title, plaintiff, to defeat it, was required to establish the prior equity.

The attorneys for the judgment creditors were called as witnesses by Still, and, to the extent of their knowledge, proved innocence or want of notice on the part of the plaintiffs in execution. This was unnecessary.

One of the plaintiffs, Barton, was not examined as a witness; and his absence is relied on to show a defect in Still’s evidence of want of notice. But holding, as we do, in the absence of any fact charging the execution creditors with notice of record or in the chain of title that the burden of proof is upon the plaintiff who is asserting an equity to defeat the legal title, we also hold that the failure to call Barton (one of the execution creditors) was not fatal to the title purchased at the execution sale.

The levy being a lien, the execution creditors not being chargeable with notice, there being no actual notice proved on them, Still’s knowledge of the lien did not prevent his taking a good title by his purchase. Grace v. Wade, 45 Tex., 527; Borden v. McRae, 46 Tex., 401; Grimes v. Hobson, 46 Tex., 416; Catlin v. Bennet, 47 Tex., 170.

There was no error in holding that Still took the title discharged from the lien.

The fifth assignment, relating to the action of the court in overruling the application for continuance, has already been disposed of.

The sixth assignment is fatal to the judgment.

The statement of facts shows that the note declared on was for $457.95, with ten per cent, interest from March 20, 1874”. The trial was July 23, 1879, and the judgment was only for $229.08 and costs.

We have had some trouble in being satisfied that we ought to notice this sixth assignment; It comes in a paper separate from the transcript — certified by the clerk below to have been filed before the transcript was taken from his. office. The clerk should have incorporated if in the transcript. But no objections were filed, as appear to be required, by rule 8 of rules for supreme court. The assignment was. discussed in appellant’s brief, filed under the rules in the office of the district clerk. We regard objections as in effect waived.

The condition of the transcript is such that we deem it necessary to notice this error as manifest in the record.

We call the attention to the want of citation and service on any parties. Plaintiff and intervenor, alone in court, litigated their rights, and the court adjudicated the rights of others not in court.

[Opinion delivered November 24, 1879.]

Special guardians should be appointed for the minors.

For the error in the amount of the judgment and the want of service upon parties whose rights were adjudicated, our opinion and award is that the case be reversed.

Reversed and remanded.


author: Quinan, J.

text:
    Thomas M. Attaway v. Hubbard Carter et al.
    (Case No. 860.)
    1. Pleadings—Petition.—While a petition maybe very loosely drawn, and might be much improved upon in definiteness and fullness of statements, yet if it contain averments which set out a good cause of action, with prayer for appropriate relief, it is error to sustain a demurrer thereto.
    2. Lis pendens—Vendor's lien.—If the holder of a purchase money note for land sue to foreclose before an adverse claimant had any legal title to the land of which the holder had notice, the purchaser at such foreclosure sale will be entitled to recover the land.
    8. Purchaser with notice.—Land in the hands of a purchaser, who buys with knowledge that the purchase money had not been paid, is subject to a lien for its payment.
    4. Purchaser subrogated to rights of plaintiff.—The purchaser "of land at a foreclosure sale is subrogated to all the rights the plaintiff in the foreclosure proceedings had at the institution of the suit.
    6. Vendor’s lien —Part of survey bound only in proportion.— Where a note is given for the purchase money of a survey of land, a subdivision thereof in the hands of a subsequent vendee is only bound for such proportion of unpaid purchase money as the value of the subdivision bears to the value of the entire survey.
    6. Waiver of vendor’s lien — Estoppel.— If- the payee of a vendor’s lien note agrees, for a valuable consideration, by parol or otherwise, with the purchaser of the land, to waive his lien, such purchaser will hold the land free from the lien, even if the note were held by one who knew nothing of the agreement, unless the lien was reserved specially in the deed, in which case knowledge must be brought home to the holder. But if the purchaser stood by and permitted his vendor to sell the note to the holder without disclosing the fact of the waiver, he would be estopped from setting up the release against the holder.

      Appeal from Busk. Tried below before the Hon. A. J. Booty.
    ' On the 14th of March, 1874, Attaway brought suit against Carter (trespass to try title) for the recovery qf a tract of one hundred and fifty-nine acres of land in Busk county.
    At the May term thereafter Garrison made himself party defendant as Carter’s landlord.
    Defendants filed a general denial, pleaded “ not guilty,” alleged title to the land, and that they had been in possession more than three years.
    Attaway, by amended petition filed 9 th January, 1878, set up how he had acquired title to the land, and alleged, in substance, that Mrs. Easley, the former owner of the land, sold it on 15th January, 1867, to one George C. Keys, who' gave her his note, payable 15th November, 1867, for nine bales of lint cotton, in part of the consideration for said land and other land of which this tract is a part; that Mrs. Easley assigned said note to B. 0. H. Johnson, who brought suit thereon against Keys, and on 12th December, 1871, recovered judgment for §495.82; that upon- said judgment, Keys having died, judgment was again rendered against Mrs.'Keys, his widow and sole heir, and that at a sale under said judgment he bought the land for §338.25 on the 4th November, 1873, and paid the money on it.
    He avers that the note was a lien upon the land, and that Carter and Garrison knew it, and that it néver had been paid, long before they acquired any interest in the land; that they combined with Geo. Keys to defraud Mrs. Easley and Johnson out of the purchase money of the land, and were not purchasers in good faith. He avers that the land claimed by defendants is “ the most valuable portion of the land, and that the remainder is insufficient to satisfy the plaintiff’s demand.” And he concludes with a prayer for general relief, and judgment as in his original petition, “and in the event this court shall decide that plaintiff is not entitled to recover the said land, that the land be sold to enforce his lien thereon which he may have acquired by said purchase of said land.” To this amended petition the defendants filed a general demurrer with special exceptions. Both parties filed repeated amendments, which in the view we take of the case it is not now necessary to notice.
    The case was submitted to the judge, both parties waiving a jury, and upon the trial the court sustained the general demurrer of the defendants to this amended petition, and the case proceeded upon the issues remaining, involving only the legal title to the land, and the defendants had judgment, from which Attaway has appealed.

      James R. Jones, for appellant.

      Morris & Gould and Drury Fields for appellees.
   Quinan, J.

The first error assigned is the action of the court in sustaining this demurrer.

The special exceptions relate to mere matter of form, and we do not think are well taken.

The amended petition is certainly very loosely drawn. It might be very much improved both in definiteness and fullness of statement; but it contains the averments of which we have given the substance, and these we think set out a good cause of action and pray the appropriate relief. Carter v. Attaway, 46 Tex., 109. We are of opinion that the court erred in sustaining the defendants’ demurrer, and for this error the judgment must be reversed.

As the case will be remanded for a new trial, and as it has already been twice here on appeal, and it is fit there should be some time an end of the controversy, we think it proper that we should indicate our opinion briefly upon the most material questions of law involved in it and which are likely to arise upon the trial. These questions have been exhibited in the voluminous pleadings in the case, and have been presented to us in the assignments of error, in the briefs of counsel and in the argument before us.

1. If, then, when Johnson instituted his suit against Keys upon the purchase money note and for the foreclosure of its lien, the defendants had no legal title to the land of which Johnson had any knowledge,.actual or constructive, and that the note had a lien, and Attaway purchased the land and paid for it, he would be entitled to a recovery of the land in this suit.

2. If the defendants purchased the land with knowledge that the purchase money had not been paid, the land in their hands would be subject to a lien for its payment.

3. If Attaway purchased the land under the Johnson judgment, he was thereby subrogated to whatever rights Johnson had at the institution of the suit, for the enforcement of his lien against it, and if in fact there was a lien for the unpaid purchase money, with knowledge of which defendants were chargeable, he would be entitled to enforce the same against the land claimed by defendants to thé extent of the money he had paid for the land and interest.

4. If the note upon which the Johnson judgment is based was given for this tract and a larger tract, Attaway would only be entitled to hold the land claimed by defendants bound for such proportion of the money as he had paid and interest, as the value of their land bore to the value of the whole tract. That proportion we think could be ascertained by the court or jury trying the cause, or a resale of the whole land might be decreed upon making proper parties. Peters v. Clements, decided at this term.

If, before the assignment of the purchase money note by Mr. Easley to Johnson, Mrs. Easley, for a valuable consideration, agreed with Garrison, by parol or otherwise, to waive the lien of the note upon the land claimed by Garrison, or Garrison and Carter, then the defendants would hold the land free of any lien, and this whether Johnson knew of said agreement or not, unless, indeed, the lien was reserved specially in the deed from Mrs. Easley to Keys, in which case knowledge of the release must be brought home to Johnson. Hood v. De Cordova, 17 Wall., 1.

But if, when Johnson traded with Mrs. Easley for the note, he did so under the belief that it had a valid subsisting lien upon the land, and that Garrison knew this and stood by, or encouraged him to trade for the note, without disclosing to him the fact of such release, Garrison would be estopped from setting up such release of the lien against Johnson or Attaway. Burleson v. Burleson, 28 Tex., 415.

[Opinion delivered November 29, 1879.]

5. We do not think the point made upon the certificate of the officer taking the acknowledgment of the deed from Keys to Garrison, in writing 1868 for 1867, where the mistake is corrected by the statement that the acknowledgment is of the above deed, appended to the deed itself, is worthy of serious consideration. Nor do we think that the mistake of “ Joseph Easley ” for “ Joseph English ” in that deed would render it void for uncertainty, when by many other calls in the deed the land conveyed can be identified. These questions seem to have been decided upon the former appeal. Kingston v. Pickins, 46 Tex., 101; Berry v. Wright, 14 Tex., 273.

It will of course be necessary to amend the pleadings in this case in accordance with the views we have expressed, and specifically asking the desired relief.

We conclude that the judgment be reversed and the case remanded.

Reversed and remanded.


author: A. S. Walker, J.

text:
    George White v. C. O. Affleck.
    (Case No. 3050.)
    1. Breach of contract to but and locate land certificates — ■ Measure of damages.— The defendant received from the plaintiff @1,000, with" which to buy land certificates, under a contract providing that two-thirds of the land so located shpuld belong to the plaintiff and one-third to the defendant. The defendant failed to locate the land certificates according to the terms of the contract, and the plaintiff repudiated the acts of the defendant altogether. In a suit for the breach of the contract, the money received by the defendant, with legal interest from the time he received it, is the measure of damages. Durst v. Swift, 11 Tex., 281; Sutton v. Page, 4 Tex., 147; Garrett v. Gaines, 6 Tex., 443; Hall v. York, 16 Tex,, 23; Mitchell v. McLemore, 9 Tex., 151; Murchison v. Payne, 37 Tex., 305; Eborn v. Zimpleman, 47 Tex., 503; Close v. Fields, 13 Tex., 626.
    2. Limitation.— Where the defendant has never repudiated his obligation to the plaintiff, there is no limitation to a suit on a contract made by the defendant to buy and locate land certificates for the plaintiff with money received from him for that purpose.
    Appeal from Collin. Tried below before the Hon. W. H. Andrews. The ‘Tacts are stated in the opinion.

      Richard Malibie, for the appellant.
    ThrocP.morton, Brown do Bro., for appellee.
   A. S. Walker, J.

The appellee instituted this suit to recover from the appellant damages for the breach of a contract set out in the petition, by which appellant undertook and agreed that he would, with $1,000 furnished to him' by appellee, buy certificates on the best terms and locate lands in the state of Texas, and, after procuring patents, convey to appellee' two-thirds of the land so acquired. The contract was dated May 3, I860. Suit in the district court-was filed March 9, 1874, the petition charging that defendant had failed to acquire the lands and convey to appellee as he had contracted to 'do, alleging a total failure to perform his part of the contract by the defendant, and asking judgment for $2,000 and interest, being amount of the bond executed by defendant, conditioned for his performance of the contract. The petition also further alleged purchase of the certificates, and failure to locate, etc.; damage at $10,000.

Defendant filed a special demurrer that the cause of action was barred by limitation, plea of ,general denial, and limitation of four years.

By amended answer defendant pleaded that he had furnished to plaintiff a report, "showing that he had purchased under his contract certain certificates amounting to two thousand four hundred and thirty-six acres for $960, and expended $30 in buying them, leaving in his hands $10. He pleaded that the frontier of Texas had been subject to Indian raids, and it was unsafe to locate said lands. That he had entered the Confederate army in 1861, and could not make the locations, and since the war had closed, the Indians had made constant raids on the frontier, so that it was unsafe to make the locations. He also set up acts claimed as a substantial compliance. The greater part of the lands were located subsequent to the institution of suit.

A jury gave a verdict for the plaintiff in the sum of $3,742, actual damages. The court rendered judgment, and defendant, upon the overruling of his motion for a new trial, appealed.

The assignment of errors relates to the rulings of the court in admitting and excluding testimony on the trial; to the instructions given by the court and the refusal of charges asked by the defendant; and that the verdict is excessive, not supported by-law or the evidence.

In noticing such of the assignments of error as are necessary to the disposition of the case a sufficient statement of the case will be given. The brief for appellant does not comply with the rules in indicating by statements the views urged in his brief as applied to the record.

The conduct of the case by plaintiff was upon the theory of a total abandonment of the contract by him, on the ground of an utter and entire failure on the part of defendant to comply with his obligations. His testimony was directed to the alleged breach and the damages sought to be recovered.

The defendant sought to excuse his delay, and, by a tardy or partial compliance with the substantial purpose of the contract, to reduce damages to a mere nominal or reduced amount.

The charges given by the court, and which were by the district judge selected from instructions asked by the parties, having been principally taken from those asked by the plaintiff, were exclusively directed to the questions of breach and measure of damages.

The charges refused related to the evidence and pleadings of the defendant, relied on to show a substantial compliance after a long delay, accounted for by the condition of the country during the period of the delay.

1. The charge defining the duty of White under the contract; delay, and due diligence in complying with the contract sued on, are not injurious to the defendant.

2. Considering the testimony sufficient to sustain the plaintiff on the issue as to breach of the contract, the instructions-asked by the defendant, being upon that branch of the case, become immaterial.

3. There is no evidence in the statement of facts of fraud on the part of the defendant, although the delay may have been held by the jury evidence of gross negligence, unless in fact they should find that the condition of the country excused it.

4. The court instructed the jury that “ The measure of. damages under the contract would be the reasonable and fair value of the land which defendant might have procured by the exercise of due diligence and sound judgment. If you believe that the defendant has broken his contract, under the rule laid down in the preceding charges, you will ascertain the whole number of acres of land that might have been acquired in the proper and faithful performance of the same, and ascertain the reasonable value of the land, if well selected, and find for the plaintiff two-thirds of the amount so found.”

In direct response to this charge the jury seem to have based their verdict for the value of two thousand four hundred and thirty-six acres, amount of certificates reported by White January 1,1861, to have been bought and valued at $2.25 per acre, two-thirds of which sum they found for plaintiff.

In support of this charge we are referred to several authorities.

McMullen v. Kelso, 4 Tex., 237. This was a suit for an attorney’s fee, which was by contract to be a certain league of land. The court apportioned the contract, and the value of one-fourth the league was found; that having been taken as a measure of the value of the services performed under the contract for the league.

Taylor v. Rowland, 26 Tex., 294. This opinion relates to the right to sue for, but gives no expression to the measure of damages in the case.

The other cases and authorities cited relate to cases of violation by agents of trusts, and duties affecting personal property.

The contract being for the conveyance of a quantity of acres measured by two-thirds of the acreage, in certificates which $1,000 would buy, was not probably <>ne which could have been enforced by suit for specific performance, unless aided by part performance on part of defendant, to the extent of identifying the lands to which the contract should apply. The purchase money advanced in such case, in the absence of an express stipulation, would be the measure of damages. Durst v. Swift, 11 Tex., 281, 283. This was a suit for damages for failure to comply with an obligation to convey five and' a half leagues of land in certain named counties at a stipulated price paid, but agreeing upon such sum as the measure of damages on breach of the contract. Held, that suit for specific performance could not be maintained, and that in the absence of an agreement as to the purchase money being the rule, such “ was the measure of damages which would have governed the jury.” It was not shown that the obligation named the penalty as liquidated damages.

If the case of Durst v. Swift, just cited, while indicating the rule, be not direct authority for the application to this case of the rule adopted in this state as the measure of damages for the breach of warranty of lands sold, and a failure to convey under contract for sale of lands specifically described, still the analogy is so clear that, in the absence of express authority, we would adopt the rule; the measure being the purchase money, or contract price, with eight per cent, as damages. Sutton v. Page, 4 Tex., 147; Garrett v. Gaines, 6 Tex., 443; Hall v. York, 16 Tex., 23.

The uncertainty or difficulty in applying the rule given by the court below is evident from the testimony from which the jury was expected to ascertain a value. Competent and intelligent witnesses estimated lands located within the territory in which the parties may naturally have anticipated that the lands would be selected at from fifty cents to $5 per acre.

The rule we have adopted seems to have been recognized in several cases akin to this. Mitchell v. McLemore, 9 Tex., 151; Murchison v. Payne, 37 Tex., 305; Eborn v. Zimpelman, 47 Tex., 503. In this last case the report does not show, as the pleadings and testimony did, that the money was placed in the hands of the intestate for the purchase of land.

5. Taking this rule the damages were excessive. On the total repudiation by plaintiff of the acts of defendant under the contract as an execution, the limit would be the money advanced and damages at statutory interest. Close v. Fields, 13 Tex., 626.

6. The testimony of the witnesses to the relative values of old and new locations, and as to reasonable time for defendant to have performed his work, were competent to show the effect of the delay as a circumstance from which the want of proper diligence could be inferred, on the’ issue as to whether defendant had broken the contract or could claim his recent acts as a substantial compliance with the contract.

[Opinion delivered April 19, 1880.]

7. The conversations detailed by plaintiff in his testimony as to the counties where the lands were to be located were not admissible to add such terms to the written contract executed at the time.

8. On a question of fraud, should plaintiff seek to adopt the acts of defendant and pursue the lands obtained, the testimony of the defendant explaining apparent conflicts of dates in transfers, in exchanging certificates, would be admissible; but not in the suit, as by plaintiff repudiating the acts in toto of the defendant.

9. There is no limitation in the case. Defendant at no time ever repudiated his obligation; at all times did he recognize his obligation to plaintiff under the contract.

For the error in the court in charging upon the measure of damages, and because the verdict is excessive, the judgment below should be reversed.

Reversed and remanded.


author: Walker, P. J.

text:
    John S. Heard v. Francis C. McKinney et al.
    (Case No. 3847.)
    1. Parties—Fraudulent conveyanpe.— The creditor and vendee are the only necessary parties to a suit to set aside, as fraudulent as to creditors, the deed of one who died without property, and on whose estate no administration has been taken out.
    2. Jurisdiction of district court — Fraudulent conveyance.— A vendor having died without property and on whose estate no administration has been granted, the district court alone has jurisdiction of a suit by a creditor against the decedent’s vendee, to set aside as fraudulent a deed from the deceased, and subject the property conveyed to the payment of his debts; and to sustain a demurrer to the petition for want of jurisdiction is erroneous. 7 Tex., 235; 22 Tex., 7; 46 Tex., 566; 13 Tex., 338.

      Appeal from Collin. Tried below before the Hon. Joseph Bledsoe.
    ’ This action was instituted in the district court of Collin county, by the appellant, against Francis E. McKinney and-Charles W. McKinney, filed 8th February, 1877, alleging in substance that James McKinney, the husband of Francis E. and the father of Charles W., on the 1st of January, 1874, made and delivered to plaintiff his promissory note for $590, due one day after date, with interest at twelve per cent, per annum. That sáid James McKinney afterwards, on the 31st day of August, 1874, conveyed by deed to the said Francis E. McKinney, on the sole consideration of love and affection, two hundred and ten acres of land in Denton county, and also all the land he, the said James McKinney, then owned in Collin, Cass and Archer counties. And that afterwards the said James McKinney and Francis E. McKinney, to wit, on the 2d day of January, A. D. 1875, conveyed by deed to the said Charles W. McKinney, upon the sole consideration of love and affection, eight acres of said land within the corporate limits of the town of McKinney, Collin county, Texas. That all of said deeds were duly delivered and recorded, and embraced all the land then owned by the said James McKinney, and that the said Francis E. and Charles W., by virtue thereof, entered immediately into possession of the same. That the said James McKinney, at the time of the execution of said deeds, owned the land embraced therein, and that he soon thereafter, to wit, on the-day of-, A. D. 1875, departed this life intestate; and that at the time of his death he owned no property whatever subject to administration under the constitution and laws of this state. That said note had been long due, and payment often demanded and refused, except as follows: Fifty dollars on the 2d day of February, A. D. 1874, sixty-two and ninety-five one-hundredths on 13th of February, 1874, and forty-five and sixty one-hundredths paid by Francis E. McKinney February 1, 1877. That appellant is the only creditor of the said James McKinney; that there has been no administration on his estate, and could not be if a necessity existed for administration; that said conveyances from James McKinney to Francis E. McKinney, and from the said James and Francis E. to Charles W. McKinney, were made without any consideration deemed valuable in law, and for the purpose of hindering, delaying and defrauding appellant in the collection of his said debt, and that the same were and are fraudulent and void as to him. Prayer that said conveyances be decreed to be fraudulent, null and void, and canceled and discharged of record, and that appellant have judgment for his debt, interest and costs, to be satisfied from the sale of lands conveyed by the said James McKinney as aforesaid, and that said land, or so much thereof as may be necessary, be decreed to be sold for the payment of the same.
    To which petition the appellees excepted because the same was insufficient in law; the defendants’ demurrer was sustained by the court, and a final judgment was rendered against the plaintiff, from which he has appealed and assigns the following grounds of error, to wit:
    . 1. The court erred in holding that it had no jurisdiction of the amount in controversy in this suit, it being a suit to cancel deeds and subject the land conveyed by them to the payment of a debt.
    2. The court erred in holding that it was necessary for plaintiff, in order to maintain his said action, that there be an administration on the estate of James McKinney, and the claim sued on in this action presented to the administrator.
    3. The court erred in dismissing the plaintiff’s suit because of the alleged insufficiency of the facts set forth in the petition as constituting plaintiff’s cause of action.

      Richard Maltbie, for appellant.

      ThrocJcmorton, Brown dk Bro., for appellees.
   Walker, P. J.

— The judgment of the court presents merely, in the ordinary form of similar entries, the action taken by the court in sustaining an exception to the petition, where the plaintiff, as he did in this case, declines to amend, viz.: to render a final judgment in the premises in favor of the defendant against the plaintiff. The views of the law as held by the court in rendering the judgment are not made otherwise apparent to us than as may be drawn from the general conclusion stated in the judgment; the specifications of objections in the assignment of errors relating to the legal views which appellant alleges were held by the court cannot otherwise be considered than as argumentative suggestions, under the third assignment, against the correctness of the judgment. The merits of the case brought before us are, however, sufficiently involved in the third assignment of errors. The questions may be conveniently considered in the order in which they are presented in the assignment of errors.

This proceeding was a suit, in effect, to subject the tracts of land described in the petition to.the payment of a debt; it was in the nature of a proceeding in rem. The character of the suit was to determine whether the defendants had, as against the rights of plaintiff as creditor, title to the land. The district court has original jurisdiction “of all suits for the trial of title to land.” Sec. 8, art. 5, Const. The county court “shall not have jurisdiction of suits for the recovery of land.” Sec. 16, art. 5, Const. The jurisdiction of justices of the peace is limited to cases where “ the amount in controversy is $200 or less, exclusive of interest, of which exclusive original jurisdiction is not given to the district or county courts, and such other jurisdiction as may be ' provided by law, under such regulations as may be prescribed by law.” Sec. 19, art. 6, Const. It is clear that the district court alone has jurisdiction to determine the question of title to the land; in no other forum, therefore, could the plaintiff seek to have determined the most essential branch of his cause of action, viz.: that the defendants’ title to the land is invalid as against him. His entire cause of action consists of the alleged existence of a debt to the payment of which the land is claimed to be subject, and the remedy sought by reason thereof, viz.: a decree for the sale of the land in satisfaction of such debt. The county court has jurisdiction over the amount of the plaintiff’s debt, and can render judgment thereon, upon which ordinary process may issue; but in respect to determining the issue required to be decided in this cause of action, it would be wholly incompetent to exercise jurisdiction. The cause of action of the plaintiff is not severable; he is not seeking to recover a personal judgment against the estate of James McKinney, nor to recover against his heirs on the ground of their having received, by descent, assets of the estate subject to the payment of debts; but he alleges a state of facts to show that he is not entitled to sue the heirs as such, nor to proceed against an administrator of the estate (there being no administration opened, nor any necessity therefor). But he proceeds against the property, alleging as a fact the existence of his debt, and that the property is subject to its payment, and states a case invoking the equitable jurisdiction of the district court. In Marshall v. Taylor, 7 Tex., 235, suit in district court to foreclose mortgage to secure payment of a note for an amount not within its jurisdiction, the court, in maintaining the jurisdiction of the district court, said: “ The matter in controversy was not only the debt, but the security given for its payment. The litigation comprehended as well the subject-matter of the mortgage as the debt.” See, also, Lane v. Howard, 22 Tex., 7. We are clearly of the opinion, therefore, that the suit was properly brought in the district court.

The proposition that the plaintiff, under the facts stated in the petition, could not maintain this action, but would be required to rely upon the remedies which nrght be afforded by proceeding against the estate of James McKinney, through an administration, and suit against the administrator, is not maintainable. The petition alleges that the deceased, at the time of his death, owned no property whatever subject to administration; the pursuit of a remedy through the probate court, or by action against an administrator of an estate without assets, would have been fruitless and vain; a mere formal and illusory ceremony. In Patterson v. Allen, 50 Tex., 26, Judge G-ould remarked that the policy or object of our probate laws, in requiring administration, is the protection of the estate and the rights and preferences of the widow, children, creditors and heirs or distributees, but not to force administration in all cases.” In that case ii was held that, where there is no administration on the estate, of a deceased person, and but one debt against the estate, and the heirs of such deceased person, by an agreement amongst themselves, partition and distribute the estate without satisfying the debt, the party in whose favor such debt is due, and which is a lien upon land sold to the ancestor of such heirs, may sue for the debt and to foreclose the lien, making the heirs defendants, without administration on the estate of their ancestor.” In the case before us, like the case of Patterson v. Allen, the plaintiff, according to the petition, was the sole creditor of the estate, but unlike it, in that the estate was wholly without assets of any kind; if there had been, and such assets had been received by the heirs, suit against them would, perhaps, have been maintainable without administration. The plaintiff, therefore, having no pretense of remedy against the heirs as such, nor ground for proceeding fruitlessly to cause administration to be had on the estate thus wholly without means of any kind, seeks a remedy by proceeding against property which was never subject to administration; it having been conveyed, as alleged in the petition, by voluntary conveyances by James McKinney before his death to defraud his creditors. These conveyances could only be impeached by the creditors of the grantor, and not by the administrator of the grantor. Cobb v. Norwood, 11 Tex., 561; Avery v. Avery, 12 Tex., 57. If the conveyance was fraudulent and void as to creditors, the fraudulent vendor, or assignor, could not take advantage of the fraud, or avoid his own deed on that ground, nor could his administrator. Seawell v. Lowery, 16 Tex., 50; Connell v. Chandler, 13 Tex., 5. A direct proceeding on the part of creditors or for their use would be required to reach the estate, conveyed by such deed, by having the deed annulled. Hart v. Rust, 46 Tex., 566.

From these authorities it is seen that in no possible event could the plaintiff have proceeded to enforce by legal remedy his rights as a creditor than to do so by a bill of the nature of that which he filed in this suit, to set aside conveyances alleged to be fraudulent, which related' to lands not belonging to the estate of James McKinney, the title to which in the defendants the administrator of said estate could not impeach, and thereby subject to administration.

The case of Birdwell v. Butler, 13 Tex., 338, recognizes, without question, the validity of the remedy sought to be enforced in this case, so far as relates to its purpose to obtain a decree declaring fraudulent and void as to creditors the aforesaid conveyances, and to subject the lands to the payment of the debt.

In that case the plaintiffs, having, before the institution of their action, recovered judgments against the alleged fraudulent grantor for the amounts of their respective debts, sought to subject the lands conveyed to the payment of the said judgments. In this suit the plaintiff asks for no personal judgment against the heirs of James McKinney, but alleges distinctly the existence of the debt claimed by him by apt and appropriate allegations; and it does not appear, from the facts alleged in the petition, that any other parties are necessary or can be affected by the decree which is asked than the defendants; nor does it appear that the plaintiff has any other remedy for his right than t.he one which he is pursuing. “Ho person should be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had.” Story’s Eq. Pleadings, sec. 231. And, indeed, it is apparent that there can be no other parties, who, in the nature of' things, under the allegations of the petition, could be brought before the court to respond to this suit, having any interest to be affected by the decree, except those who have been made defendants. As there is no person at law against whom a personal judgment can be obtained so as to affect the property, the demand is dependent on equity for its ascertainment and enforcement. A court of equity will therefore take jurisdiction though there is' no judgment. Bump on Fraud. Con., p. 517. “ A bill in such a case is not an application for the exercise of the auxiliary jurisdiction of the court, but is a part of its original jurisdiction in equity.” Id., p. 517, and authorities cited.

[Opinion delivered April 19, 1880.]

We are of opinion that the court below erred in sustaining the demurrer of the defendants to the plaintiff’s petition, and therefore award that the judgment be reversed and the cause remanded.

Reversed and remanded.


text:
    M. Goldsoll v. William Votaw.
    (Case No. 3603.)
    1. District clerks — Affidavit for attachment.— Clerks of the district court are not authorized by law to administer oaths generally, and an affidavit for attachment made before the district clerk of one county in an attachment suit instituted in the district court of another county is insufficient.
    2. Attachment—Affidavit.— The plaintiff is not required, in an attachment suit against a non-resident defendant, to make oath that he will probably lose his debt. 17 Tex., 597; 19 Tex., 298.
    Appeal from Grayson. Tried below before the Hon. J. M. Lindsay.
    The facts appear in the opinion of the court.

      Joseph Perry and Rare <& Read, for appellant.

      Throckmorton <& Brown, for appellee.
   Quinan, J.

This suit was instituted in Grayson district court by Votaw against Goldsoll for debt.

Yotaw sued out an attachment in the case. The affidavit upon which the attachment issued was made before the deputy district clerk of Bexar county on the 4th September, 1876.

The defendant moved to quash the attachment on two grounds:

1. The affidavit required by law was not made to obtain the attachment.

2. The affidavit was not made before an officer who had a right to administer it.

The defendant also pleaded the general denial and set-offs.

The court overruled the defendant’s motion to quash, to which he excepted. Upon the trial there was judgment for plaintiff and Goldsoll has appealed.

There is but one assignment of error — that the court erred in overruling appellant’s motion to quash the attachment.

The first objection to the affidavit is, that it does not state that plaintiff will thereby probably lose his debt. The ground of the attachment is that the defendant is a nonresident. In such case the' statute does not require the plaintiff to state that he will thereby probably lose his debt. P. D., art. 142; Wright v. Smith, 19 Tex., 298; Messner v. Hutchins, 17 Tex., 597.

The second objection is that the clerk of the district court of Bexar county had no power to administer oaths generally, nor to take affidavits to attachments except in his own court.

The provisions of our law in relation to this subject are as follows: Art. 503, P. D., provides that “the clerks of the district courts and other deputies shall have power to administer oaths in all cases required in the discharge of the duties of their office.” It has been held that this article did not confer upon them the power to administer oaths generally, but their authority is confined to the administration of oaths appertaining to their official duties in the courts whereof they are clerks. Carlee v. Smith, 8 Tex., 134; Smith v. Wilson, 15 Tex., 132.

Article 1251 confers upon the clerks of the county courts the authority to administer oaths and affirmations generally, and give certificates thereof.

Upon the adoption of the constitution of 1869, which consolidated the office of clerk of the county court with that of the district clerk, and provided that the district clerk should be ex officio clerk of the county court, the statute of 1870 (P. D., art. 5898) was enacted, which, in conformity with the constitution, using its very terms, declared that the district clerks shall be ex officio clerks of the county courts of their respective "counties, and by virtue of their offices shall have control of the records, papers and books of the county and district courts, and shall generally perform all the duties heretofore performed by county and district court clerks. It is not doubted that under this article the district clerks had authority to administer affidavits generally.

Being charged with the performance of the duties which then devolved upon the county clerks, they must be held impliedly invested with the power to discharge them.

But we are of opinion that this authority vested in them as ex officio clerks of the county court. It was never before incident or appertaining to the office of district clerk, and it is not in terms vested in the district clerks as such.

When again, by the constitution of 1876, the offices of district and county clerk were dissevered, it would seem to follow that the district clerk was remitted to the discharge of the duties, and vested only with the powers, which before the consolidation of the offices appertained to the office of district clerk. He was no longer recorder or clerk of the county court, or charged with the duties of county clerk, and retained none of the powers which, in his character of ex officio clerk of that court, had been vested in him to discharge its duties. This, we think, .is the fair and necessary construction of the law.

It is true that the constitution of 1876 provides for the continuance in force of all laws not repugnant to its pro visions, but we are inclined to the opinion, though there may be no incongruity in permitting the district clerk, as well as the county clerk or a justice of the peace, to administer oaths generally, that it was not contemplated by the constitution that the district clerk, no longer charged with the performance of the duties of county clerk, should continue to retain the functions which devolved upon him only as ex offieio county clerk, when a county clerk was, in fact, created as a separate and distinct officer, who undoubtedly,'by virtue of his office, possessed the power to administer oaths in all cases, and give certificates thereof. We conclude, therefore, that the district clerk of Bexar had no authority to admin-, ister the affidavit upon which the attachment in this.case issued, and that there was error in the refusal of the county court to quash the attachment.

[Opinion delivered April 19, 1880.]

The judgment of the district court, therefore, ought for this reason to be reversed and remanded, and we so award.

Reversed and remanded.


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    J. H. Owsley, Ex’r, v. Paris Exchange Bank.
    (Case No. 3414.)
    1. Citation —Judgment by default.—The statute (Pas. Dig., 1431) prescribes that the citation in the district court shall “state the names of the parties to the suit,” and a citation which fails to state the names of all of the defendants is defective and will not support a judgment by default. 43 Tex., 53; 8 Tex., 108; 16 Tex., 46; 35 Tex., 583.
    S. Service of citation.— A defendant sued as executor, and also individually, need not be served with more than one copy of the citation.
    Error from Lamar. Tried below before the Hon. R. R. Gaines.
    This suit was brought at the fall term, 1876, of the district court of Lamar county by J. E. Roberts, cashier of the Paris Exchange Bank, against J. H. Owsley, individually, and also as executor of Ann J. Owsley, deceased, and S. B. Maxey, upon a promissory note alleged to have been executed by J. H. Owsley, one E. K. Owsley (who is not sued), S. B. Maxey, and Ann J. Owsley, deceased. A copy of the note was filed with and made a part of the petition. Citation issued to the sheriff of Lamar county, commanding him to summon J. H. Owsley to be and appear before “ the district court of Lamar county on the first Monday in October, 1876, to answer the petition of J. E. Boberts, cashier of the Paris Exchange Bank, against him in his own proper person and as executor of Ann J. Owsley, deceased, and others.” ■
    The sheriff returned the citation, “Game to hand this, the 18th day of September, 1876, and executed the 21st day day of September, 1876, by delivering to J. II. Owsley, the within-named defendant, a true copy of this writ, with the accompanying certified copy of plaintiff’s petition. John A. Gose, Sheriff Lamar County, Tex. By T. T. Sanders, Deputy.” f

    There was a judgment by default against J. H. Owsley, individually and as executor of Ann J. Owsley, with a writ of inquiry. After the judgment by default was taken, the cause came on to be heard on the writ of inquiry and upon the cross-bill of the defendant Maxey, setting up his surety-ship, and that the note sued on was given for the benefit of the property of Ann J. Owsley. The court rendered judgment against J. H. Owsley, and charging the property of Ann J. Owsley, and against Maxey as surety, from which judgment J. H. Owsley, as executor of Ann J. Owsley, prosecuted this writ of error.
    The errors assigned are :
    1. The citation upon which the court below exercised jurisdiction is fatally defective, in that it does not set out the names of all the parties defendants in the suit; this being a judgment by default against plaintiff in error.
    2. The return of the officer on original citation is defective, as there is no allegation therein of service on plaintiff in error as executor, etc.
    Third, fourth, fifth and sixth relate to the proceedings resulting in judgment subjecting the estate of Ann Jane Owsley, deceased, to the judgment.

      John P. Graham and J. G. Dudley, for plaintiff in error.

      Walton, Green & Hill, for defendant in error.
   A. S. Walker, J.

Touching the matters relating to the merits, we only remark that the petition does not disclose that Ann Jane Owsley was a married woman, nor does the judgment so declare. There is no statement of facts. Such objection cannot be taken on appeal when not taken or apparent on the record below. Caldwell v. Brown, 43 Tex., 216.

The second assignment we do not deem material. The service of the two copies would have been useless.

The sufficiency of the citation raised by thé first assignment is the only question of importance in the record. The citation commanded the officer to summon J. H. Owsley to be and personally appear . . . “to answer the petition of J. E. Roberts, cashier Paris Exchange Bank, against him in his own proper person, "and as executor of Ann Jane Owsley and others, for debt, certified copy of which petition is herewith sent, which you will also deliver to defendant.” In other respects the citation was formal.

The statute (Pas. Dig., 1431) prescribes that the citation in the district court “ shall also state the names of the parties to the suit.”

In Burleson v. Henderson, 4 Tex., 52, a citation Jo one defendant, omitting two other defendants, held defective on appeal; the opinion of the court stating, “ it is sufficient to say that the statute requires the parties to be named in the writ; and this provision being disregarded, the citation cannot be sustained.”

In Crain v. Griffis, 14 Tex., 358, citation was issued ancj served on Sampson Christie, a defendant. The citation named the defendants “ Joel B. Crain, George H. Barney and Sampson.” Held, that objection for misdescription, etc., does not go to the validity of the process, and must have been taken by plea or exception, and cannot be assigned as error on appeal from judgment by default.

In Dikesv. Monroe, 15 Tex., 236, held, that a citation describing the plaintiffs as “ Monroe and brother,” in an action by II. W. Monroe and John Monroe, was not so defective as to require judgment by default to be reversed; the court holding that the copy of petition served at the same time would have given particular information of the nature of the cause of action; and that “ the petition in our system of procedure is the leading process.”

In Andrews v. Ennis, 16 Tex., 46, held, “the statement of the firm name ” (of plaintiffs in the citation) “is deemed a sufficient compliance with the statute. The petition, a copy of which accompanied the writ, fully discloséd the names of the plaintiffs.”

In Kirk v. Murphy, 16 Tex., 655, the opinion of the court says: “If the names of the plaintiffs were truly stated in the copy of the petition, that would sufficiently apprise the defendants who the plaintiffs really were, though there was a mistake in the Christian name of one of them in the copy of the citation.” This was on a motion to quash the citation for variance between the citation and petition in the names of the plaintiffs.

In Norvell v. Garthwaite, 25 Tex., 584, judgment reversed for defective citations — not naming the parties; citations were directed to each of several defendants, who appear alone to have been named as defendants.

In Battle v. Eddy, 31 Tex., 368, judgment reversed for defective citation in naming but one of two defendants.

In Guimond v. Nast, 44 Tex., 114, a citation naming the defendants as “ J. W. Guimond & Co.,” served on Guimond, held sufficient on his appeal to support a judgment by default against him individually," and against the firm assets, the court saying: “This is a sufficient description of the names of the parties to the suit as required by the statute, because we must presume that the accompanying copy of the petition corresponded with the petition on file, which did state more fully the names of the parties, by which the defendant served, was fully informed on that subject.” This appears to have been decided under the statute regulating suits against partnerships. Pas. Dig., 1514.

[Opinion delivered April 26, 1880.]

In Heath v. Fraley, 50 Tex., 209, in suit by John W. Fraley and his wife Mary Emma Fraley, plaintiffs, against Heath, the plaintiffs were named in the citation as “ John W. Fraley and wife.” On appeal from-judgment by default, held: The citation, however, upon which the judgment is based fails to state the names of the plaintiffs, to whose action appellant was required to answer, as is, in plain and direct terms, required by tfye statute.” Citing 4 Tex., 52; 8 Tex., 108; 16 Tex., 46; 25 Tex., 583.

From this digest of the cases, and taking the first and the last utterance of the supreme court, that the statute means what it says, and that the meaning is clear, we conclude that the citation in this record will not support the judgment by default. It does not state the names of the parties to the suit. For this error the case should be reversed.

Reversed and remanded.


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    C. & M. M. Pannill v. Geo. W. Smith.
    (Case No. 3450.)
    1. Vendor’s lien.— The vendor’s lien is not the creature of contract; it arises by operation of law, and exists only when the purchase money agreed to be paid remains unpaid, and the lien has not been waived. Malone v. Kaufman, 38 Tex., 457; Flanagan v. Wynn, 35 Tex., 778.
    Error from Ellis. Tried below before the Hon. Hat. M. Burford.
    This suit was instituted by Smith against C. Pannill upon a promissory note made by Pannill to Smith for §1,328 gold, payablé on demand, with interest at one and one-half per cent, a month until paid. It is dated June 18, 1875.
    Smith alleges the note was given in part payment of the purchase money of a tract of land, upon which he avers he has a lien, which he prays may be enforced.
    Pannill and his wife, who is made party, answer, denying that the note was given for the purchase money of the land, and aver that the land is the separate property of the wife; that in April, 1874, they conveyed the land to A. J. Smith, wife of G. W. Smith, for the consideration expressed of $2,500. That they agreed to accept in part payment a debt of about $800 which C. Pannill & Co. owed Smith. That afterwards, Smith, becoming dissatisfied with his purchase, desired to cancel the trade, which was done, and on 8th June, 1874, Smith and wife reconveyed the land to Mrs. M. M.'Pannill, without lien or reservation of any kind. 'That after this, on 18th June, 1875, C. Pannill executed the note sued on, which was not for the land, but which was given for Pannill & Co.’s debt to Smith, including the $800 owing to him at the time of the purchase of the land by Smith.
    The case was submitted on the law and facts to the judge, ■who rendered judgment for the plaintiff Smith, and a decree «establishing a vendor’s lien for the payment of the note sued on upon the land, and ordering a sale of it.
    From this judgment this writ of error is prosecuted, and ■the errors assigned are that the court erred in refusing them a new trial; in declaring the note sued on to be a lien upon the land, and rendering judgment for its foreclosure, and in (rejecting the proof offered to prove the land to be the separate property of Mrs. Pannill.

      A. A. Kemble, for plaintiffs in error.

      Amsi Bradshaw, for defendant in error.
   Quinan, J.

We have considered carefully the statement ■ of the facts proven upon the trial, and have arrived at the ■conclusion that the evidence does not support the judgment «of the court.

The proof conclusively establishes these facts: That upon the sale of the land by Pannill and wife to Mrs. Smith, no money whatever was paid. Pannill & Co. were then indebted to Smith for borrowed money, and he held their note for it, $500 currency, and bearing one and one-half per cent, a month interest, dated May 10,1873. They were also indebted to him at the same time in other sums, which at that time, with the note, amounted to about $800, but counting up the interest made up the note which is here sued on. That it was agreed that this debt should go into and bo received as part payment for the land, and the balance, about $1,700, was to be paid by Smith in a few days. Neither the $500 note nor the accounts were then delivered to ¡¡Pannill, nor was any part of the purchase money paid. In March, 1871, Smith wrote to Pannill, desiring him to sell his place to some one else, that he was in debt, and stating: “What you are owing me I will take property at Ennis, if it suits you, at reasonable price.” •

Cn the 19th May, 1871, he wrote again, explaining his embarrassments, and concluded : “I only loan you the money for an accommodation. I had rather you to keep the place. Give me a lien on it for what money I loaned you. I dill be willing to take it without any interest.”

On the 8th June, 1871, the transaction in relation to the land was canceled, and Smith and wife reconveyed the land to Mrs. Pannill.

Not till over a year thereafter was the note sued on given; then there was a settlement between Smith and Pannill. The $500 note and the accounts, adding the interest upon them, were given up to Pannill, and Pannill executed the note sued on to Smith for the amount of that indebtedness of Pannill & Co.

Although Smith says that he regarded this transaction as creating a lien upon the land for the payment of the nóte, it is manifest that his opinion upon the subject is erroneous. The proof is very positive that at the time of the reconveyance to Mrs. Pannill, there was no agreement or understanding that the Pannill debt should be a lien upon the land; that the transaction was simply a cancellation of the trade that had been made when the land was conveyed to Mrs. Smith, and the old indebtedness of Pannill & Co. was left standing just as it was before the first conveyance, and remaiued, in fact, unsettled till the execution of the note sued on. There was not only no agreement or understanding that this debt should be a lien upon the land, but if there had been it would have been ineffectual as making a mortgage by parol. The vendor’s lien is not the creature of contract; it arises by operation of law, and exists only where the purchase money agreed to be paid remains unpaid, and the lien has not been waived. Malone v. Kaufman, 38 Tex., 457; Flanagan v. Wynn, 25 Tex., 778.

[Opinion delivered April 26, 1880.]

It is unnecessary to notice the other errors assigned. The rejection of the testimony, in the view we take of the proof, was not a material error.

Because the judgment of the court is against the evidence, the judgment will be reversed and the case remanded, and we so award.

Reversed and remanded.