text:
    John C. McDonald v. The Texas & Pacific Railroad.
    (Case No. 3009.)
    1. Practice — Opening and concluding.— Refusing the defendant permission to open and conclude tlxe argument in proceedings by a railroad to condemn right of way through his land is not error for which the case will be reversed, unless it is evident from the record that injustice has resulted therefrom. 27 Tex., 481.
    2. Railroad — Actual and consequential damages for right of way.—The rule for assessing damages for right of way for a railroad is the actual value of the land condemned for the use of the road, and such consequential damages as may result from the particular manner in which the road is constructed, or shape in which the land may be taken, against which consequential damages may be set off the increased value of the land remaining, by reason of the building of the road, and if the damage is greater than the benefit, the difference may be recovered by the owner, in addition to the value of the land condemned. 26 Tex., 603.
    Appeal from Lamar. Tried below before the Hon. John 0. Easton.
    This suit was instituted by the T. & P. R. R. Co., in the district court of Lamar, against! appellant, in accordance with the provisions of article 4922, to revise the decision of commissioners who had assessed the damages on the condemnation of the appellant’s land, for the construction over it of appellee’s railway.
    The petition alleges that the land condemned embraced fourteen and seven thousand one hundred and twenty-nine twenty-one thousand seven hundred and eightieths acres; that the sum of $350 was a fall and fair compensation for it, and that they tendered that amount to appellant, but he refused to accept it; that thereupon they filed in the district court of Lamar county their application for the appointment of commissioners; that commissioners were appointed, who assessed the damages of the appellant at $1,100, which appellee alleged was exorbitant, excessive, unjust, and four or five times as much as the just sum. The prayer is that the facts of the case be inquired into, and such judgment rendered as will be just, and for general relief. The company also filed the bond required under article 4992, to abide the decision of the case.
    To this petition McDonald demurred.
    He filed also the general issue, and pleaded specially:
    1. That the award made by the commissioners was not
    the true amount of damages due him, but as a compromise with a view to quiet controversy. ®
    2. That the company have illegally appropriated his land, entering at the northeast corner of his farm, running their line diagonally across it, cutting his farm into triangles, rendering it almost valueless as a farm.
    3. That it has dug through the whole length of it a deep cut and ravine, and thrown out on each side a large embankment of rocks and clay subsoil, which they have scattered and spread over his farm for a great distance on each side. And, in consequence, that the actual damage done to the lands of the defendant by reason of the running of the line as aforesaid through it was $2,000.
    5. That he has been vexed, harassed and annoyed in body and in mind by reason of the tortious acts of plaintiff in wrongfully entering upon his land, injuring his farm and overthrowing his plans, to his damage $2,000.
    6. That he has been annoyed, harassed and vexed and kept from his business by this suit, and forced to employ counsel and pay witnesses, etc., to his damage the further sum of $1,000.
    He pleads these several sums of money in reconvention and prays judgment for his damages.
    The plaintiff filed an amended petition denying the allegations of defendant’s answer, and allegingthat the defendant’s land has been greatly enhanced in value by the construction of the road, to the amount of $2,000, which they plead in offset to the defendant’s claim for damages beyond the actual value of the land appropriated.
    To this amendment defendant excepted on the ground that it attempts to set up advantages by construction of said road against damages sustained by defendant.
    The demurrers and special exceptions filed by the defendant were overruled, for the reason, as stated in the bill of exceptions, “that where the defendant claims special damages to his land not taken by the road, then the benefits accruing, if any, may be set off against the damages so claimed.”
    The case was submitted to a jury, who returned a verdict for the defendant for the land condemned, $200, and for damages $150; and judgment was rendered condemning the right of way over the land (four and one thousand and fifty-four one thousand and eighty-fourths acres in the field of defendant, in all fourteen and seven thousand one hundred and twenty-four twenty-one thousand seven hundred and eightieths acres), and for McDonald for $350, and against him for costs, it appearing that the amount had been tendered him.
    The defendant moved for a new trial and in arrest of judgment, which being overruled he appealed.
    Maxey, Lightfoot do Gill, for appellant.

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

There are fifteen errors assigned, but many of them are not noticed in the appellant’s brief, and they embrace but a few propositions, which may be considered without specially noticing each assignment.

1. It is insisted that the court erred in permitting the plaintiff’s counsel to open and conclude the case before the jury.

While it may be conceded that in a particular case, where the defendant had the affirmative of the issues involved, and the case was one of contested facts, to deny the defendant the right of opening and conclusion might be an error sufficient to require the reversal of the judgment, a mere error of practice on a question of this kind, unless it is evident from the record that injustice has resulted, would not afford grounds for reversal. Belt v. Raguet, 27 Tex., 481.

Besides, it is not clear that the burden of proof or the affirmative of the issues was on the defendant. -It was a suit by the railroad company to procure the condemnation of the land and to have the damages assessed.' It was necessary for the company to establish that it was authorized to institute this proceeding and to have condemna- . tion of the land, and to prove its plea of tender, and other allegations. The defendant had pleaded the general issue, and that he had pleaded in addition special defenses did not relieve the plaintiff of the necessity of proving its case or deprive it of the right to open and conclude.

It is objected that the court erred in overruling the demurrers and exceptions of defendant to plaintiff’s petition; in refusing to sustain defendant’s exceptions to testimony offered; in its charge to the jury; in refusing to grant a new trial.

These objections are all pointed at what is alleged to be an erroneous view of the law of the case, in respect to the assessment of damages upon the condemnation of the right of way, by which the judge was governed in his several rulings and charges in the case. It is assumed that he permitted the plaintiff to prove by witnesses the speculative benefits of the construction of the railroad as an offset against the defendant’s damages, and that by his charge to the jury he permitted them to offset, in assessing the damages, the speculative and imaginary benefits done to defendant’s land by reason of the Construction of the railroad through it against the damages he had sustained by the taking of it for the purposes of the road.

But these objections are not sustained in point of fact by the record. We can find in the transcript no ruling of the court from which it could be inferred that speculative or imaginary benefits to the defendant’s land were, in his opinion, a proper subject for the consideration of the jury in the assessment of damages. What he did hold on this subject can be best understood from his instruction to the jury. He instructed them:

“ The criterion by which you will assess the damages in this case is: 1. What was the actual value of the land taken or condemned for the use of the road? This amount you must return a verdict for in favor of the defendant against the railroad company.

“ 2. Then, if there is any consequential damage claimed by reason of running the road in a particular way across the lands and premises of the defendant, or by throwing the rocks or dirt on his land not taken by the road, you may estimate these damages as the testimony shows you they, really are, and if the balance of the tract of land has been increased in value equal to these damages, then you will offset the one against the other; and if the value of the tract of land has not been by the building of the road enhanced as much as it has been damaged by reason of the construction of the road through it, whatever the difference is, you will award to the defendant in addition to the actual value of the land taken, but if they are equal you will only award the actual value of the land.”

These charges of the judge do not countenance the idea advanced by appellant’s counsel, that in the opinion of the court speculative and imaginary benefits could be set off against the value of the land taken or the damages to other land, caused by the construction of the company’s road.

The instructions are believed to be strictly in accordance with the statute and what may be now regarded as the settled law of this state upon the subject.

The rule prescribed in the statute is very brief and general in its terms,—“ taking as the rule of assessment the damages so done the real estate and property of said owner by the construction of said railroad and by the condemning of said real estate and property for the use aforesaid.”

In B. B., B. & C. R. R. Co. v. Ferris, 26 Tex., 603, the supreme court, Moore, J., delivering the opinion, citing many cases, deduces the following as the correct rules for the assessment of damages, and these rules have been followed ever since in this state. It would be a “ very unnecessary labor tin our part to review the multiplied and conflicting cases upon the subject in other states, though it is believed that the great current of decisions in other states is as it is held here.

“The owner of land taken for public use is entitled to the intrinsic value of the land so taken, without reference to the profit or advantage he may derive from the construction of the improvement for which it is taken. He is also entitled to such damages, if any, as are occasioned to the remainder of the tract of which the land taken was a part, by reason of its appropriation for the purpose for which it was taken. In estimating these damages the benefits and advantages that the remainder of the tract will derive from the improvement are legitimate subjects of consideration, and are to be estimated in determining the true amount of damages that have accrued to the owner- by the appropriation of his property for the purpose for which it has been taken. But this does not affect the claim for the intrinsic value of the land taken.”

The charge of the court in this case was doubtless framed upon this opinion and is in substantial accord with it. We can perceive no error in it. And if it could be objected that there were other aspects of the law appropriate to the facts not embraced in it, it was the duty of the appellant to have presented them to the court and invited its action upon them.” Peeler v. Guilkey, 27 Tex., 358.

The only charge asked by defendant was refused, no doubt, because already in effect given in the general charge. It suggested nothing upon the subject of speculative damages. In this view of the law of the case, then, there was no error in overruling the exceptions of the defendant to plaintiff’s petition, nor in permitting the witnesses to testify for the plaintiff, “ whether (not considering the actual value of the latid appropriated as right of way) the tract of land and farm was enhanced in value by the construction of the road in a sum equal to the damages done said land and farm by the building through it of the road.” This was a legitimate subject of inquiry, proper for the consideration of the jury. Indeed it is not easy to perceive hów they could otherwise estimate the defendant’s damage, or whether he was in fact damaged at all; or that the expression “ the enhanced value of the land ” could be construed to mean “ a speculative or imaginary benefit,” or that -they misunderstood its application. Eor have we any reason to believe that the verdict rendered was the result of any consideration of prospective or imaginary benefits to accrue to the defendant, but rather that they assessed the damages as they were in effect instructed to do, by estimating the actual enhanced value of the land, and the damage actually done. Bast v. Alford, 20 Tex., 227.

It is assigned for error, and the point is saved by a bill of exceptions, that the court refused to permit defendant to prove “ that the cuts or embankments made by the railroad company through or on the lands in controversy had caused any damage to said lands by overrunning the same with water.” This testimony was objected to on the ground that the defendant had not specially alleged damage done by water or overflow.

We think the testimony was properly excluded. There was certainly no allegation in the defendant’s answer under which it would have been admissible. He had alleged no general damages. He had specially charged the injury done him and laid his damages therefor; that by the construction of the road across his farm it was cut into triangles, and so destroyed its value as a farm; that plaintiff had dug a deep cut through his farm in its whole length, and had thrown out on each side an embankment of rocks and clay subsoil ■which they had scattered over his land, ou each side of the railway; that they had vexed and harassed him with this litigation; but there is nothing in his pleadings to suggest that he had suffered any injury from water or overflow. Whether, under a general allegation of damage, he might,be permitted to make this proof, it is not necessary to say; but having set out in his answer with minuteness, his claim, it would seém to be unfair to permit him to go into other matters of which he had given no notice. Eor, indeed, can we say with certainty, from the bill of exceptions, whether the proof offered would have been relevant and material; whether the overrunning with water was merely a casual occurrence which happened during the construction of the road, and not to happen again, or whether it amounted to a permanent appropriation of the defendant’s land, other than that embraced in the right of way.

[Opinion delivered May 10, 1880.]

The motion for a new trial was properly overruled. There was testimony to support the verdict of the jury. Six or seven witnesses testified “ that outside of • the land actually taken, that the increased value of the defendant’s land, by reason of the railroad being made, was equal to the damages ; that the clay subsoil and rock had not been thrown beyond the line of the land condemned.” There was other testimony, especially that of the defendant, conflicting with this, but it was the business of the jury to weigh it and judge of its credibility. And we cannot undertake to say that this verdict was clearly wrong. Jordan v. Imthurn, 51 Tex., 276.

This disposes of all the questions material for the decision of the case presented in the briefs or assignments of error.

There is no error presented which, in our opinion, would require a reversal of the judgment, and it will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    S. Schiffer et als. v. J. C. Fort et al.
    (Case No. 3883.)
    1. Practice — Leave to sheriff to amend return. — Leave to a sheriff to amend his return on an execution is not a matter of right, but within the discretion of the court, and in the absence of a statement of facts it cannot be presumed that the court erred in the exercise of a sound discretion in refusing to permit a return to be amended. Freeman on Executions, 358-860.
    8. Motion to quash sheriff’s return — Notice.— An objection for want of service of notice of motion to quash the levy of an execution and the sheriff’s return thereon comes too late, where the parties at the time of the hearing argued it, and made no written exception on that ground to its being entertained.

      3. Practice — Quashing levy of execution.— Where there is no statement of facts in the record, and substantial grounds are assigned in a motion to quash a levy under an execution, it will be presumed that the action of the court was fully sustained by the testimony. Bryan v. Bridge, 6 Tex., 137; Freeman on Ex., 361.

      4. Injunction—Costs.—The defendant cannot complain that an injunction suit against him has been dismissed. In equity costs are subject to the discretion of the court to award as the justice of the case may indicate, and it is not improper to make the party procuring the levy, and occasioning the proceedings to set it aside, pay the costs. Anderson v. McKinney, 22 Tex., 654; Payne v. Benham, 16 Tex., 368; Cannon v. Hemphill, 7 Tex., 207; Lacoste v. Duffy, 49 Tex., 768.
    Appeal from Ellis. Tried below before the Hon. Zimra Hunt.
    J. C. Fort, for himself and as next friend of his minor son, sued out an injunction to restrain the appellants from selling certain property levied on by the sheriff of Ellis county to satisfy an execution issued from the district court of that county on a judgment rendered against Fort and one Smith for $524.45.
    The petition alleged that the property was not the property of plaintiff, but of his son apd others; that some of it was exempt from execution; that the levy was too indefinite; that the land levied on was the property of his deceased wife and belonged to her estate, which was, not administered upon, por the debts against it settled up.
    The defendants answered, denying all the allegations of the petition, alleging the validity of the levy and that the property was subject to sale, and they asked, if the sheriff’s return was insufficient, that he be permitted to amend it.
    They also moved to dissolve the injunction for want of equity.
    At the return term in the district court, the plaintiff, on this injunction suit, filed a motion to quash the levy and return of the sheriff of the execution in this case for several causes set out in his motion: irregularity in making the levy; that the property is not in the custody pf the sheriff nor bonded by any one; that the property is not sufficiently described; that the levy was excessive and oppressive, being upon property of the value of $20,000.
    Upon the hearing of the cause,- which was submitted to the judge, a judgment was rendered reciting, “ at this day came on to be heard the motion of the plaintiffs J. C. Fort and Earle Fort to quash the levy and return upon the execution,” describing it particularly, and ordering that the levy be quashed and the property released.
    Then the entry proceeds: “ Also on the same day came on to be heard the defendants’ motion to dissolve the injunction,” which is overruled, and it is ordered and adjudged that the case be dismissed and that the plaintiffs recover their costs.
    There is no statement of facts in the transcript.
    - By bills of exceptions it appears that on the hearing of the motion to quash the levy on the execution, the defendants asked leave of the court for the sheriff to amend his return according to the facts; “ that he applied to Fort to point out property and he refused; that at the instance of plaintiff he levied upon the mules and cotton, and upon an undivided interest of one-third in the land, as the property of Fort, in presence of witnesses, and to state the value,” etc. The court refused to permit the amendment to be made and signed the bill of exceptions with a statement “ that all the property was left in the possession of the said Fort, he promising to hold the same subject to said levy.”
    By bill of exceptions No. 2, it appears that the defendants objected to the hearing the motion to quash the levy and return, on the ground that the levy and return was upon an execution issued in another case and not in this case, and that no notice of it was given as required by law.
    This. bill of exceptions is signed by the judge with the statement, “ When the injunction case was called, the plaintiff in that case called up his motion to quash the sheriff’s levy and return made in case No. 978, and there being no written exception at the time as to the notice of the motion, but being argued by counsel on both sides, the court entertained the motion.”

      The order of the court quashing the levy and return on the execution, and refusing to dissolve the injunction, is also excepted to.
    The defendants appeal to the supreme court, and have assigned for error:
    I. The refusal to permit the sheriff to amend his return, and in assuming that the property was left in the possession of Fort.
    II. That the court erred in entertaining the motion to quash the levy and return.
    III. In sustaining that motion on the grounds stated in the motion and not in the petition.
    IY. In overruling the motion to dissolve the injunction.
    Y. In dismissing plaintiff’s petition, and rendering judgment for costs against the defendants. "

      F. P. Powell and Ferris & Rainey, for appellants.

      Amzi Bradshaw, for appellees.
   Quinan, J.

To the assignments we respond:

1. The permission to amend the return of the sheriff on the execution was not a matter of right. It is within the discretion of the court, and subject to its direction. But it should only be granted in furtherance of justice. And this discretion cannot be properly exercised without a full knowledge of all the facts. Freeman on Executions, 358, 360.

In the absence of a statement of the facts we cannot assume that the judge erred in the exercise of a sound discretion in refusing to permit the return to be amended.

. 2. The court did not err in entertaining the motion to quash the return and levy. The injunction had that for its object, and was merely ancillary thereto. Its purpose was to suspend proceedings under the levy until the regularity and validity of it should be inquired into, and that, upon hearing of the proofs, the same might be vacated. The defendants were duly served with process therein. But if more formal notice of the motion to quash could have been required, the objection to entertaining the motion came too late, for the judge certifies that, on the hearing of it, the parties, at the time, argued the motion and made no written exception for want of notice, and therefore he entertained it.

The entry of the judgment seems to support the conclusion that the motion to quash was regularly made in the suit No. 978; but, whether so or not, it was a mere irregularity, at most, which could work no injury. The injunction and the motion to quash were, in effect, directed to the same end, and may properly be considered as part of the same proceedings.

3. We cannot say that the motion to quash was improperly sustained. There being no statement of the facts proved on the hearing, the presumption is that the action of the court was fully warranted by the testimony. Substantial causes were assigned for it in the motion. If in truth no valid levy had been made, or if the levy, as is alleged, hád been made oppressively upon $20,000 worth of property to satisfy a debt of $500 or $600, or upon property exempt from execution, we do not doubt that in this proceeding the levy could and ought to have been vacated. Bryan v. Bridge, 6 Tex., 137; Freeman on Ex., 361.

4. The fourth assignment, that the court erred in refusing to dissolve the injunction, may be true, but it is not now materia], for the court dismissed the petition.

5. The fifth assignment, that it was error to dismiss the petition and render judgment against the defendant for costs, is not well taken.

In equity, costs are subject to the discretion of the court to award as the justice of the case may indicate; and as the levy was quashed, it would seem to be equity that the party who procured the levy, and occasioned this proceeding to set it aside, should pay the costs. The defendants cannot complain of the dismissal of the injunction suit against themselves. Anderson v. McKinney, 22 Tex., 654; Payne v. Benham, 16 Tex., 368; Cannon v. Hemphill, 7 Tex., 207; Lacoste v. Duffy, 49 Tex., 768.

Upon the whole we can discover no error in the proceedings to the injury of the defendants, or which would require a reversal of the judgment nor any good to be attained thereby. The quashal of the levy and the return left the parties free to take out another execution. The lien of their judgment upon the land is not affected by it, and to send this case back for another trial because of errors, if such there be, which have worked no injury, would be a useless and profitless prolongation of litigation.

[Opinion delivered May 10, 1880.]

We conclude that the judgment should be affirmed.

A WTT^TVrqD


author: A. S. Walkeb, J.

text:
    W. C. Whitsett et al. v. W. C. Miller et al.
    (Case No. 2994.)
    1. Parol purchase of land — Possession — Notice.— The purchaser of land by parol, who pays a portion of the purchase money, goes into possession and makes improvements thereon, acquires an equitable title thereto, and such possession is notice of whatever right he may have to, or interest in, the land.
    3. Tenant may dispute lessor’s title.—A tenant induced to take ■ land by mistake, fraud or misrepresentations on the part of the lessor may dispute his title.
    3. Estoppel—Notice.— Possession by one claiming an equitable title to land is notice of the claim, and he is not estopped from asserting it by an acknowledgment of tenancy obtained by misrepresentations on the part of the lessor; such possession is also notice to all who, by their relations to the lessor as principal and agent, community in interest or common design against the tenant, are chargeable with the effect of notice to the lessor.
    4, Charge of the court.—Failure of the court to instruct the jury as to the defense of a party who has interposed a proper plea, and adduced evidence in support of it, is error, as is also a charge upon the plaintiffs’ case, which communicates to the jury an additional weight to the evidence.
    Appeal from Fannin. Tried below before the Hon. John C. Easton.
    December 21, 1871, Miller brought suit in the district court of Fannin county for specific performance, and to remove clouds from his title to a tract of land; against Whit-sett, E. H. Smith and her husband, J. L. Smith.
    The petition alleged substantially that in February, 1868, Miller, by parol contract with one J. M. Collins, then the owner of the land, bought it at an agreed price of $1,500; one thousand of which was at the time settled by that sum owing Miller from Collins upon a settlement, and five hundred to be paid in stock horses on demand; that in October, 1868, under the contract, Miller had entered upon the land, had resided there ever since, and had made valuable improvements thereon in clearing about one hundred acres and building cabins, etc. Payment of $300 in cattle and labor was alleged in 1867; readiness to pay the balance, and $400 tendered in court, so much of which as may be necessary to be applied to the discharge of the remainder. It was also alleged that on November 27, 1868, Collins had conveyed the land to defendant Whitsett with notice, and he to defendant Mrs. Smith, she also having notice. Conspiracy among defendants and with Collins to defraud plaintiff was alleged.
    The defendants demurred; pleaded general denial; sale and conveyance in good faith by Collins to Whitsett, November 27, 1868, and by Whitsett to Mrs. Smith November 10, 1871; that in January, 1870, defendant Whitsett had leased the land to Miller, who became his tenant for the year and who paid rent therefor; lease for 1871 to Smith and wife by Miller, who attorned to them; and that from such tenancy existing at the time of purchase by defendant Smith, plaintiff was estopped, etc. Smith and wife alleged the value of rents on the place for 1871, and asked judgment, etc.; also set up indebtedness by Miller to Collins, giving items, notes and judgments.
    The plaintiff in replication alleged that in 1870 he had heard of Whitsett’s claim to the land, and had consulted an attorney, who had advised him that his claim to the land could not be maintained, and advised settlement with Whit-sett. Acting in ignorance of his legal rights he had made the agreement with Whitsett, who at the time had assured plaintiff that the- purchase money he had paid to Collins should be repaid; that he had renewed the lease under same conditions of ignorance, etc.; that he took counsel of other attorneys, and had repudiated the tenancy promptly, etc.; and the defendant Whitsett not having secured the return of the purchase money.
    Exceptions to the defendants’ plea of estoppel from the attornment of plaintiff to Smith were sustained also to the claim for rents and money claims set up as existing in Collins’ favor and against Miller.
    On the trial plaintiff testified, “ my understanding was that I was to have the Tacket place,” and that in February, 1865, he and Collins had a general settlement in the town of Brenham, Collins making “ the settlement, and said that he owed me (Miller) $1,000, and started to give me his note, and I told him I would rather have the land, and he then sold me the land for $1,500. The $1,000 he owed me went in part payment for the land, and I was to pay him $500 more in good gentle horse property whenever he demanded it. Foster was in possession of the land at the time I bought it. I did not move on the land until October, 1865; have been in possession ever since. I did some xyork on the place in March, 1865; broke and fenced ten acres of the land; have paid Collins $300 on the place since I bought it. About eighty acres had been broken when I bought it, and a house was on it.
    “ I broke and fenced one hundred acres of land, built four cabins, and dug a well. All the improvements I put on the place worth $630 to $670. Collins was at my house in 1866.”
    R. H. Taylor, for plaintiff: That he was acquainted with J. M. Collins and the Tacket place; knew them in 1861 and 1865. Miller lived on the Tacket place in 1865; had a conversation with Collins and Miller in 1865 about the Tacket place. Collins said he had let Miller have the Tacket place.”
    Joseph Bryant testified: “Collins told witness he had sold Miller the Tacket place ” in 1865. “ Saw Miller in nos-session of the place in spring of I860.” Galbraith “had a conversation with Collins at witness’ house in July, 1866, when Collins stated to witness that the Tacket place belonged to Bill Miller.” Plaintiff read in evidence a deed from Tacket and wife to Collins for the lands described in the petition.
    The defendants read in1 evidence a deed from Collins to Whitsett for the land, of date November 27,1868, and deed from Whitsett to defendant Mrs. E. H. Smith, of date November 10, 1871.
    Collins by depositions denied in detail the circumstances detailed by Miller; denied ever selling the land to Miller; said he had let Miller remain on the place for keeping up the improvements and paying taxes until he could sell. He was owing Whitsett a large, amount, and let him have this and other lands on the indebtedness.
    Whitsett testified to his purchase of Collins; also, that in 1870 he had sent Miller word of his claim; Miller came to see witness and they settled, detailing a conversation; he agreeing that Miller should keep the place for 1870, make some new fencing and pay $25; Miller gave his note for the sum and paid it. That in January, 1871, he told Miller he had sold the place to his daughter, the defendant E. H. Smith, and that on 2d January, 1871, Miller had leased the place for that year, to give up the place in November, 1871. The written lease signed by Miller and to J. L. Smith was read. Whitsett wrote the document; rent was for one-third the corn and one-fourth the cotton. Witness detailed a conversation had'in June, 1870, with Miller, in which witness told Miller he must look to Collins to pay him (Miller) his advances on the land, etc.
    Defendant Mrs. Smith testified that she did not know, when she bought the place, of Miller setting up any claim to the land; knew him only as tenant of her father and husband.
    It was in evidence that Collins and Smith were sons-in-law of Whitsett; that Collins was an army contractor during the war, and that Miller had been in his employ much of the time, part of time as a detailed conscript; at the time Collins deeded the land to Whitsett he also conveyed his other lands to Whitsett, and at the time a number of suits were pending against Collins. ,

    In explanation, Miller explained that in 1868 he had asked Collins for a deed at Fort Smith, Ark., and Collins said there was difficulty in making deed there, and that he would come to Texas and there make a deed. Miller also testified that he had been ready and willing to pay Collins the balance of the purchase money, etc. That he heard in 1870 of Whitsett claiming the land; consulted a lawyer, who told him he could not-hold the land, and advised him to settle with Whitsett; that he went to see Whitsett, who assured him that Collins would be here in the spring, and would pay him (Miller) back the money advanced. In these circumstances he made the agreement with Whitsett for lease; that the next year he renewed the lease with Whitsett; did not read the paper he signed, and thought it was a lease to Whitsett. About- a year after his first consultation he consulted the law partner of the attorney he first consulted, who on a second interview told him that his father was “ the regularly retained counsel for Whit-sett ” and that they could not take his case, etc.
    There was much and contradictory testimony as to the business dealings and state of accounts between Collins and Miller before, at the time, and after the date of the alleged sale.

    There was no testimony as to the date that Miller repudiated his tenancy, or that he did so before the institution, of the suit, December 21, 1871.
    The court instructed the jury as to the facts necessary to be proved to entitle plaintiff to recover. The defendants excepted to a number of the charges and asked a large number of instructions, all of which were refused.
    The jury found a verdict for the plaintiff for the land, allowing defendants $200 balance of purchase money, upon which a decree was rendered.
    Motion for new trial was overruled and defendant’s appealed.

      Bichará B. Semple and B. W. Campbell, for appellants.

      Throckmorton do Brown, for' appellees.
   A. S. Walkeb, J.

The fourth and fifth assignments of error alone need to be particularly considered.

The first assignment relates to sustaining the exceptions of plaintiff to the pleas of estoppel from the lease, etc. As defendants had the benefit of the facts on the trial in support of other defenses, no injury resulted.

The second assignment questions the sufficiency of the petition. This is not well taken. The petition was good.

The third, sixth and eighth are too indefinite.

The seventh, to the overruling motion for new trial, has nothing additional to the assignment of errors. •

The fourth and fifth assignments complain of certain instructions which were given-and refused.

The fourth instruction given, ... so far as objectionable, is: “If you believe from the testimony that the plaintiff purchased the land in controversy from Collins by a verbal contract, paying part of the purchase money (either in property, money, or the indebtedness of Collins to him), and that Miller went into actual possession of the land with the knowledge and consent of Collins, and made valuable improvements thereon, then said purchase so made vested in Miller an equitable title to the land superior to the legal title which remained in Collins, or which defendants now hold.”

5. “If you believe from the evidence that the plaintiff was in the actual possession of the said land, then such possession was notice not only to the defendants but to all the world of his claim of title, and when Whitsett purchased of Collins he took whatever title he got by his deed with full notice of Miller’s claim of title to the land, and hence the defendants cannot claim to be innocent purchasers.”

7. “ In order for the acts of a party to operate as an estop- • pel, the acts must have been done with the intent to influence the other party in his conduct.” . . . The court then charged that if Miller’s attornment was from mistake of his rights, or on Whitsett’s unperformed assurance that he would be repaid, he could assert his title, etc.

The ninth instruction informed the jury, if,' at the date of the deed from Whitsett to Mrs. Smith, this alleged tenancy (made January 2d, ending in November) had expired, and if Miller at that date was in possession of the land, holding the same adversely to her, and if she knew, or could have been informed by a reasonable inquiry, that Miller was in-possession of and setting upa claim of title to the land, then she is not an innocent purchaser, and cannot be protected as such.”

The. defendants asked the court to charge the jury, if they believe from the evidence that Mrs. E. H. Smith purchased said ¿and from Whitsett and gave a fair price therefor, in good faith, and that at the date of their purchase Miller held said premises as the tenant of said defendants or either of them, and that she had no knowledge that said Miller was at that date setting up any other claim to the premises in controversy, they will find for the defendants.” This was refused.

It may be remarked that, however perfect the equitable title of Miller may have been upon the facts as alleged, and as made by him in his testimony, still the very ground-works of his equity were attacked in the testimony for the defendants.

Collins denied the contract and denied the payment of anything on the contract; and there was at least a confused, condition of their money matters, shown by other testimony adduced, to have existed at or soon after the alleged parol purchase.

The defendant, Mrs. E. H. Smith, by plea, and by testimony to the support of the plea, set up affirmative equities in the land, to support the legal title which had been, conveyed to her before the suit was brought.

It was in evidence, that, in addition to the legal title, she had given therefor a valuable consideration, perfected-at the delivery of the deed to her.

To attack her legal title by destroying her equity, it de- . volved upon Miller to show potice to her, or facts charging her with such notice of his claim. She had testified that she only knew Miller as her father’s and husband’s tenant. There was no evidence of actual knowledge brought home to her.

Thus the effect of Miller’s possession, and of its character, become of vital importance.

It may be that the judge below looked upon Whitsett’s act in taking the second lease from Miller as destructive of any idea of good faith in his daughter, for whom he acted in taking Miller’s obligation for rent; charging Mrs. Smith with knowledge of all the facts known to her agent. But even this agency -was a fact for the jury.

The closing paragraph of the fourth charge concluded the rights of Mrs. Smith by the notice of which her grantor was charged at his purchase. At least her claim is there limited to the bare legal title, as was Whitsett’s.

So of the fifth instruction, by which it is stated that Miller’s possession is conclusive, not only against Whitsett, but as against all his vendees. This could only be true as to the state of the title at the date of thafleed to"Whitsett; it could not be true as limiting the natural effect of Miller’s actions and relations to the property, which may have induced action on the part of others, based upon an altered state of the title evidenced by MilleBs acts.

The seventh instruction contains the proposition that to create an estoppel in pais the acts must have been done with the particular intent “ to influence the other party in his conduct.” To this should have been added the further extension of the right to result from the effect of the act as one that hie had reason to believe, as a man of ordinary prudence, would influence the conduct of others (Big. on Estoppel, 600), or “ if the act and circumstances were such as to justify defendant in acting upon it.” Mayer v. Ramsey, 46 Tex., 375.

The doctrine “ that the act of the party against whom the estoppel is claimed must be wilful has been overruled or limited.” Big. on Estoppel, 398. It extends as well to acts of carelessness and negligence, inducing or resulting in changing the conduct of others, as acting upon a condition of facts presumed from such acts, and as to which it would be fraudulent should such presumptions be denied. Page v. Arnim, 29 Tex., 72. Or to any act inducing a change of condition which cannot be replaced without injury to the party acting. Beardsly v. Foote, 14 Ohio St., 416.

The ninth instruction is upon a hypothetical state of facts. At least the facts which would authorize it do not appear in the statement of facts. It nowhere appears in evidence that at the date of Whitsett’s deed to defendant, Mrs. Smith, that Miller’s second lease had expired, or that he was at the time setting up a claim to the land.

While the instruction asked by the defendants and set out above is perhaps not entirely free from objection so as to render its rejection error in itself, still it was sufficient to call the attention of the court to the deficiency in the general charge as to the rights of Mrs. Smith under her plea of bona fide purchase.

The court in many ways had avoided the legal effect of the estoppel as pleaded; every part of the plaintiff’s case had been carefully protected. The defendant had a right to have her ease explained to the jury. She had a plea, and evidence under it sufficient to sustain it in absence of contradictory testimony. It was error not to give it to the jury.

Assuming the plaintiff’s testimony to be true, he had an equitable title to the land at the time of Whitsett’s purchase. His possession charged Whitsett with notice of his title, and Whitsett took only the bare legal title, subordinate to the equity in Miller.

The mistake in the law under which Miller appears to have acted, with knowledge of the facts, was accompanied with such assurances from Whitsett at the time of his “ settlement” in 1870, when the first lease was made, that it vitiated the contract, at least against Whitsett and his vendees with notice. Moreland v. Atchison, 19 Tex., 310; Mayer v. Ramsey, 46 Tex., 375.

As a question of fact from the testimony, there is little ground for belief that Mrs. Smith acted upon Miller’s conduct, independent of and so as to avoid the taint of Whit-sett’s contract with Miller. The parol agreement for exchange was made before Miller’s second lease to J. L. Smith, so that could not have influenced the sale. The lease was taken by Whitsett, who wrote it for his daughter. The ordinary doctrine of agency would charge her with her agent’s knowledge in the transaction.

But as against Whitsett, Miller could disavow his tenancy. “ It is agreed in all the cases that if a tenant was induced to take the land by mistake, fraud, or misrepresentation on the part of the lessor, he may dispute his title.” Big. on Estoppel, 389, and cases cited.

It would be an oppressive application of the rules of law to give such effect to the acts of Miller in acknowledging his tenancy, paying money to Whitsett and promising to pay to Smith, as to operate as a conveyance of Miller’s equitable title to these lands to Mrs. Smith, without her payment of any consideration to Miller for. his property.

The instructions given as to Miller’s right to repudiate the tenancy were substantially correct in law.

The possession of Miller was notice to Whitsett and to all ■who, by their relations to Whitsett as principal and agent, community in interest, or common design against Miller, are chargeable with the effect of notice to him. The relations of Miller and Whitsett to the land; the representations and assurances made to Miller inducing the acknowledged tenancy ; the want of consideration to Miller; his ignorance of his title; Whitsett’s perfect knowledge of the transactions, all may be chargeable to the parties, if any, with whom and for whom he was acting. Wade on Notice, §§ 671, 681, 688.

• The intimate relationship by blood, action, interest and intent, shown by the testimony as possibly existing between the parties, will necessarily have an effect in determining the actual extent of notice to one of the parties as affecting the others.

[Opinion delivered May 10, 1880.]

In claiming as a Iona fide purchaser under her plea, it devolved upon Mrs. Smith to exhibit a deed to herself and to prove payment of the consideration, without notice at .the time of the delivery of the deed and payment. Story’s Eq. Jur., 1502; Watkins v. Edwards, 23 Tex., 447; Huyler v. Dahoney, 48 Tex., 238; 47 Tex., 459; Mitford & Tyler’s Pl. & Pr. in Eq., pp. 362, 363. Her equity would be defeated by notice of Miller’s claim (if indeed his be the superior equity) at any time before November 10, 1871, the date of the deed to her for the land, and of her deed to her father for the land given in consideration. Her estate in the latter could not be divested by any parol agreement for the exchange of lands. The certificate of privy acknowlment to her deed only evidenced her parting with any consideration for the land, as payment to satisfy the requisites of the defense of bona fide purchaser.

For the error of the court in failing to instruct the jury as to the defense of defendant Smith in the .form or construction of the charges upon plaintiff’s case so as to communicate to the jury an additional weight to the evidence; and in the defective charge as to the estoppel pleaded, and to which there was some evidence, the judgment will be reversed.

Bevebsed and bemanded.


author: Walker, P. J.

text:
    R. B. Whitemore & Co. v. J. W. Wilson.
    (Case No. 3052.)
    1. Attachment — Affidavit.—An affidavit for attachment, in form as follows:
    “R. B. Whitemobe & Co. > In the District Court of Collin No. 1436-J. v. t County, in ' the State of J. W. Wilson. ) Texas.
    “ C. H. White, agent for R. B. Whitemore & Co. in the above entitled cause, being duly sworn, says: that the defendant J. W. Wilson is justly indebted to the plaintiffs in the sum of ($685.66) six hundred and twenty-five dollars and sixty-six cents, and this affiant states that said defendant is about to remove his property beyond the limits of the county in which this suit has been commenced and that thereby the plaintiffs will probably lose their debt; and he further says that the writ of attachment is not sued out for the purpose of injuring the defendant,” sufficiently describes the county “in which suit has been commenced.” 5 Tex., 388; 15 Tex., 568; 85 Tex., 343; 31 Tex., 807.
    8. Same.—In an affidavit for attachment the facts required to be sworn to must be so direct and unequivocal as that if the oath is falsely and corruptly made, an indictment for perjury would lie.
    3. Same,— The requirements of the statute concerning affidavits for attachment are satisfied if a sufficient .affidavit is made, whether it is in the form of an affidavit made separate from the petition, or on the same paper as that which contains the petition, or whether no separate affidavit of the facts upon which the attachment is prayed for is made at all, but simply alleging and swearing to the necessary facts in the petition, with appropriate prayer for attachment. 46 Tex., 26; 13 Tex., 370; 16 Tex., 51; 14 Tex., 3; 15 Tex., 569; 18 Tex., 292; 24 Tex., 226.
    Error from Collin. Tried below before the Hon. W. H. Andrews.
    The opinion states the case.

      ■J. L. Doggett and Richard Maltbie, for plaintiffs in error.
    Throckmorton, Brown c& Bro., for defendant in error.
   Walker, P. J.

Suit by the plaintiffs in error against the defendant in error on a promissory note for the sum of $625.66 as principal, bearing ten per cent, interest after maturity. The petition referred to the note as an exhibit filed therewith; the exhibit referred to corresponded with the foregoing designation of amount and rate of interest, and was in the ordinary form of a promissory noté, made payable to the order of E. B. Whitemore & Co., four months after date, and signed by the defendant in error, J. W. Wilson. The petition was filed in the district court of Collin county on the 8th day of August, A. D. 18Í3, and was in the usual form. The caption thereof was thus entitled:

The commencement of the petition, or address thereof, is as follows: “To the district court of said county.” The names of the plaintiffs, and the character in which they sued, was set forth as follows: “R. B. Whitemore and Simon Boogher, doing business under the firm style of E. B. Whitemore & Co., complaining of J. W. Wilson, represent,” etc. On the same day, viz., August 8, 1873, C. H. White, agent for the plaintiffs', as is stated in the affidavit, filed in the said district court, in the record of the said suit, an affidavit for attachment, which is entitled in its caption:

The body of the affidavit is as follows, to wit: “ C. IT. White, agent for plaintiffs, E. B. Whitemore & Co., in the above entitled cause, being duly sworn, says that the defendant, J. W. Wilson, is justly indebted to the plaintiffs in the sum of ($625.66) six hundred and twenty-five dollars and sixty-six cents, and this affiant states that said defendant is about to remove his property beyond the limits of the county in which this suit has been commenced, and that thereby the plaintiffs will probably lose their debt, and he further says that the writ of attachment is not sued out for the purpose of injuring this defendant.”

Attachment bond was filed in the said cause on same day, which, like the affidavit, is headed with the title of this cause and statement of venue, thus: “In the district, court of Collin county, in the state of Texas. Suit pending in the district court of Collin county.”

The writ of attachment issued in said suit on said 8th day of August, 1873, and was executed on the same day by levying on merchandise of the defendant amounting to $2,369.64. The defendant on the succeeding day replevied the goods. The defendant’s replevy bond contained the following caption and premises, viz.:

“ R. B. Whitemore & Simon Boogher v. J. W. Wilson.

“ Whereas, by virtue of a writ of attachment issued from ■the district court of Collin county, in the state of Texas, at the suit of R. B. Whitemore and Simon Boogher, composing the firm of R. B. Whitemore & Co., against J. W. Wilson, bearing date the 8th day of August, 1875,” etc.

The defendant moved to quash the attachment: 1st. Because the affidavit for ■ attachment does not allege that the defendant is about to remove his property beyond the limits of Collin county. 2d. Because the affidavit does not allege that defendant is about to remove his property from the limits of any county; which motion was sustained, and the writ of attachment quashed and held for naught. Judgment for plaintiff for the amount of the note sued on. The plaintiffs appealed and assign as errors the ruling of the court on the said motion.

The statute under which the attachment proceedings were •had provides tliat original attachments may be issued by the clerics of the district courts, returnable to that court, upon the party applying for the same, his agent or attorney, making an affidavit in writing stating (among the several grounds therefor enumerated in the statute) that the defendant “is about to remove his property beyond the county in which the suit is to be or has been commenced.” Pas. Dig., art. 142. It is further provided by the same statute, “ that no attachment shall be issued by any judge or clerk of the district court, unless the plaintiff in the suit shall first file his petition in the same, as in other suits.” Pas. Dig., art. 165. The construction which has been placed upon our statutes which authorize the issuance of attachments, from the earliest period of our judicial history, and previous to the enactment of the direct prohibition just now quoted against the issuance of attachments before the filing of the petition, has always exacted the necessity of a petition being first filed before such a writ could issue. Fowler v. Poor, Dallam, 401; Wooster v. McGee, 1 Tex., 20; Cordova v. Priestley, 5 Tex., 250.

The expressions and terms used in the affidavit, to render them intelligible, and to construe its meaning fairly, must be considered in their relations to the subject-matter concerning which they are employed. Plainly, the plaintiffs sought to obtain an attachment against the defendant by making application therefor before the district clerk of Collin county; •it must be supposed that they knew that such a proceeding could only be based upon a suit which had either been already instituted in that court, or which was about being instituted by petition to be filed concurrently with the affidavit. The affidavit, when it was made, was deposited, as it must be fairly concluded from the record before us, with the petition, at the time or before the latter was filed; both are marked as having been filed on the same day, and they are parts of the same record and proceedings, and are identified by docket number, title- of the case, and the appropriate captions; indicating that they were filed in connection with and in relation to each, other; and a comparison of the contents of each renders it conclusive that the affidavit related to and pertained to the suit of the appellants against the appellee, and that it was true, as stated in the affidavit, that suit had been commenced. The conclusions thus nat- ■ urally arising from the record are not attempted to be qualified by the suggestion, on the part of the defendant, of any circumstance, or by any averment or allegation, which questions the fact that the petition and the affidavit were thus associated together at the time they were filed, and that they both belonged to the same identical suit which their face, captions and numberings indicated.

If this be true, the deduction must follow that the record thus made was one which incontrovertibly and conclusively showed the fact which the law required to appear by affidavit, viz., that the county from which the defendant was about to remove his property was the county of Collin. There is not the least possible uncertainty in respect to the identity of the county which is meant and referred to in the affidavit. The affiant declares that the defendant is about to remove his property beyond the limits of the county in which “ this suit has been commenced; ” the affidavit itself and the petition are patent exhibitions of the suit referred to that “ has been commenced; ” they are parts of the same record and cannot be dissevered.

If the affidavit be untrue in fact, because such" suit had not then been commenced by reason of the petition, though bearing the same date, not having been filed when the affidavit was made, that would present a different question from the one before us. The true inquiry, however, is whether the petition and the affidavit taken and read together furnish a certain indication of the county from which the affiant alleges the defendant is about to remove his property. The record shows that the suit was commenced or was then being brought in Collin county, and the affidavit, following literally the language of the statute, describes the county, or rather seeks to identify and specify it, by the descriptive averment “ that the defendant is about to remove his property beyond the limits of the county in which this suit has been commenced,” etc. What suit? and commenced where and when ? Both questions are answered conclusively by the affidavit itself, which entitles the case, as has been already copied from the record, with its docket number, and the caption whereof recites that a suit of that title is pending “in the district court of Collin county, in the state of Texas.”

The statute does not require an affidavit to be made by a specified formula; it does not require that it shall state in express terms the name of the county which is referred to; it does intend, however, that the plaintiff shall make affidavit that the removal of the property is about to be made from the county in which the suit is to be or has been commenced. The affidavit followed the very language of the law; the affidavit specified the county, not by name, but attempted to do so by stating that it is the same county as that in which this suit has been commenced; the relative pronoun “this ” having reference to the suit whereof the affidavit itself was a part and parcel, and the evidence of its pendency being conclusively verified by the petition to which it properly belonged' as a part of the record. The county, therefore, to which the affirmation of the affidavit had relation is demonstrably shown by the record to be Collin county.

The statute requires that the affidavit should state “ that the defendant is justly indebted to the plaintiff and the amount of the demand ;” yet it has been construed not necessarily to require that such material fact must b.e manifested exclusively through the intrinsic contents of the affidavit, but that the allegations of such facts contained in the petition will be sufficient if the truth of the petition is sworn to. Watts v. Harding, 5 Tex., 388; Morgan v. Johnson, 15 Tex., 568; Marshall v. Alley, 25 Tex., 342; Kennedy v. Morrison, 31 Tex., 207.

In like manner, if the plaintiffs’ affidavit, which undertakes to describe the county, or to identify it as the county from which the defendant is about to remove his property, should do so by describing it as that in which the defendant is alleged to reside according to the allegations of the petition filed herewith, in such case the petition might properly be referred to for the purpose of ascertaining the county to which reference was made, and the affirmation by the affiant in respect to the identity of the county would be no less certain than though it had been designated by its name and its boundaries.

An affidavit of the facts required to be sworn to must be so direct and unequivocal as that if the oath is falsely and corruptly made an indictment for perjury would lie. Ho objection is apparent in respect to this affidavit that could be urged against a properly drawn indictment based upon its falsity.

' It is urged in the brief of the appellee’s counsel, “ that the affidavit, in order to be sufficient to base a writ of attachment upon and sustain it, must be good upon its face — it must stand upon its own. allegations, unaided by any other paper filed in the case;” . . . that “where the petition and affidavit are separate and distinct, as in this case, each must be complete and sufficient within itself.” And under the application of such a test they insist that the affiant did not swear that the suit was pending in the district court of Collin county. We regret that the counsel have not cited us to authority in support of their proposition. ,

Cases that have been already cited illustrate a contrary doctrine, and show that the petition will be considered in connection with the affidavit.

If the affidavit for an attachment is a part of the record, as it certainly is (Drake on Attachments, sec. 90, and authorities there cited), whether it shall be made as an attached part of the petition and on the same sheets which are filed as the petition, or are separate therefrom, cannot materially affect the question as to its being a part of the record- and relevant to and connected with the petition. It will be remembered that the act regulating proceedings in the district court (art. 138, Pas. Dig.) requires the party applying for an attachment to make affidavit in writing of the truth of the matter set forth in the petition, and that the attachment law also requires the affidavit which is therein prescribed. The court has repeatedly so construed these statutes as to determine that the requirements of both statutes are satisfied if a sufficient affidavit is made, whether it be in the form of an affidavit made separately from the petition (Wright v. Ragland, 18 Tex., 289), or filed with and on the same paper as that which contains the petition (Pinson v. Kirsh, 46 Tex., 26), or whether no separate affidavit of the facts upon which the attachment is prayed for is made at all, 'but simply alleging and swearing to the necessary facts in the petition with the appropriate prayer for the attachment. Watts v. Harding, 5 Tex., 386. Numerous adjudicated cases show that no such test as that which is contended for by counsel for the appellee has ever been accepted as correct, but, on the contrary, it will be seen in the cases of Schrimpf v. McArdle, 13 Tex., 370; Seawell v. Lowery, 16 Tex., 51; Primrose v. Roden, 14 Tex., 3; Morgan v. Johnson, 15 Tex., 569; Wright v. Ragland, 18 Tex., 292; Barbee v. Holder, 24 Tex., 226, that the petition and the affidavit together may be considered together as an entire record, and that there is no requirement that the affidavit must be construed irrespective of and separately from the petition. The caption of the affidavit is a part of the instrument; it identified and described this identical suit, and recited that it was pending in the district court of Collin county; the petition itself constituting also a part of the record, together with the affidavit, fully and certainly showed that the word “this” had reference to this suit, which was - commenced in Collin county, and therefore Collin county was sufficiently designated in the affidavit.

[Opinion delivered May 10, 1880.]

We conclude that there was error in the ruling complained of, and we award that the judgment shall be reversed and the cause remanded.

Reversed and remanded.


author: A. S. Walker, J.

text:
    Wm. H. Mayfield v. Heirs of Ramon Musquez.
    (Case No. 3172.)

      1. Removing cloud from title.— In suits to remove cloud from title the plaintiff must allege and show title to the land, or that he is in possession. Story; Eq. Jur., § 703; Mitford & Tyler’s PI. and Pr. in Eq., p. 249.
    2. Confiscation — Confederate States.— Upon the fall of the Confederate States as a government the proceedings had by its officers in its name and in its courts for the “sequestration of the estates and property and effects of alien enemies,” became invalid for any purpose as against the owner, and one claiming land thereunder cannot be injured by the assertion of a lien against land still belonging to another.
    3. Confederate records — Quaire.— While the act of the eleventh legislature, page 255, styled “ An act providing for the custody and authentication of the records of the Confederate courts,” may be in force to the extent of providing a mode of proving such records, could it impose that duty upon the United States courts ? No force was added to the proceedings in the Confederate States courts by the act. They were invalid as affecting the owners’ rights to property.
    Appeal from Karnes. Tried below before the Hon. David D. Claiborne.
    October 8, 1874, Mayfield filed his suit in the district court of Karnes county against Francesca Musquez and others, alleged to be the heirs of Bamon Musquez, deceased, alleging that plaintiff owned, by “ a good legal, valid and equitable title,” certain- lands described in the petition; that the defendants “ set up some kind of pretended claim to said land, and claim that they have some kind of a vendor’s or other equitable lien on said land; ” that the claim of said defendants “is a slander and a cloud upon his title;” with prayer for judgment canceling their claim, “ that the same as a cloud upon his title be removed;” and for costs and general relief.
    Service was had by publication November 8, 1875. No appearance having been made by defendants, a trial was had, and a jury returned a verdict for the defendants, upon which judgment was rendered. A motion for new trial was overruled and plaintiff appealed.
    On the trial the plaintiff offered in evidence a document certified by' Mathew Hopkins, clerk of the United States district court for western district of Texas, “custodian of the records of the late Confederate States district court for said district,” to be a copy of proceedings in the Confederate States court in the matter of the Confederate States v. Charles and W. W. Leland, a proceeding to confiscate, etc. In the proceedings the land was ordered to be sold, was sold, and return of sale made by McGampbell, a receiver, and sale approved.
    In connection with the transcript, and without proof of execution or of filing and notice under the statute, was offered a deed of date August 13, 1863, by Jno. S. McCampbell, Confederate States receiver, etc., to the plaintiff for the land.

      The transcript and deed were excluded by the court, no reason for the act appearing, to which exceptions were taken.
    The only other evidence offered was the testimony of McCampbell, by depositions, in which he testified that he knew of a tract of land bought by Leland & Leland (or one of them) of Eamon Musquez, March 5, 1860, for which purchase four promissory notes were given (described). That witness, as Confederate States receiver, January 24, 1863, paid G-. W. Paschal $2,082.78, he signing a receipt therefor, “ I. A. & G-. W. Paschal, agents for I. H. Stribling and E. Musquez.” Witness also referred to proceedings in the Confederate States court, where it will be found that Eamon Musquez intervened (in certain cases) and recovered judgment for the purchase money of the land. Witness was ordered to pay the same, and did so, giving a memorandum copy of the settlement with Paschal, and his receipt.
    ¡No instructions to the jury are given in the record.
    The errors assigned are:
    1. The exclusion of the transcript' from the Confederate States court for western district of Texas, offered by plaintiff. . 2. Exclusion of the deed from McCampbell to the plaintiff.
    3. Overruling motion for new trial (only additional grounds being as to charge of court, which are not in the transcript).
    4. The verdict and judgment are contrary to the law and the evidence.

      L. S. lawhon, for appellant.

      Coopwood & Stewart, for appellees.
   A. S. Walker, J.

In suits to remove clouds from title the plaintiff should allege and show a title to the land or that he is in possession. Story’s Eq. Jur., § 703; Mitford & Tyler’s Pl. & Pr. in Eq., p. 249.

In this case the title offered, as well as the evidence of the act of the ancestor of the defendants relied upon as authorizing the decree, both depend upon the admissibility and effect of the document offered and excluded from the jury.

It is believed to be universally held that, upon the fall of the Confederate States as a government, the proceedings had by its officers in its name and in its courts, for the sequestration of the estates, property and effects of “ alien enemies,” became invalid for any purpose as against the owner. They presented no obstacle to the re-occupation by the owner on his return to the state at the close of the war. It is admitted in appellant’s brief that these proceedings would have no effect against Leland. The court itself has been held invalid. Hickman v. Jones, 9 Wall., 197. And such decrees. Spratt v. U. S., 8 Ct. of Cl., 499.

If not good against Leland, then plaintiff has no title and he cannot be injured by the assertion of a lien by defendants against land still belonging to Leland.

But the documents are not duly authenticated. We have been referred to no statute making the clerk of the United States court the custodian of the records and archives of the late Confederate States court.

The mere manual possession of the books and papers of the extinct court gives him no authority to certify copies as of his own office. His certificate gives no authenticity to papers shown in the certificate not to be in his official-custody.

It has been held that the act of congress óf May 26, 1790, and act of March 27, .1804, “ do not extend to judgments of the courts of the late Confederate States.” Wharton on Ev., sec. 99, and cases cited.

Of such collections of the archives of the Confederate States government, it has been held, when copies were offered, that “ the originals must be in some sense records,” and the copies excluded. ' Wharton on Ev., sec. 114, and cases cited; Schaben v. U. S. C. Court of Claims Rep., 230.

The document offered was not competent testimony and not improperly rejected.

The deed from McCampbell to plaintiff does not appear to have been proved or filed under the statute. Its rejection is not shown to have been erroneous.

But taking all the testimony offered, added to that admitted, the absence of any interest in the land in the plaintiff would prevent a decree in his favor.

[Opinion delivered May 10, 1880.]

No error appearing in the record, the judgment below should be affirmed.

Note.— Since writing the opinion, we have noticed chapter 188, Laws of 11th Leg., p. 255, styled, “An act providing for the custody and authentication of the records of the Confederate courts.”

This act authorized the “ district courts of the United States ” to take charge of and preserve the records and papers of the late Confederate district courts, held within the limits of the state; to make copies; such copies to be “received in evidence in all the courts of this state, subject to the general laws of evidence.”

This act may still be in force, to the extent of providing a mode of proving such records. It could not impose the duty upon the United States district courts; nor have they, so far as we know, by any order or act of the court, assumed the authorized custody.

But if, by a free construction of the act, the copy certified by M. Hopkins, clerk, certifying that he is the custodian, be regarded as complying with the law, still, as held above, in the absence of any interest in plaintiff in the land, as shown, taking all the testimony offered and admitted, the exclusion did not injure the plaintiff. No force was added to the proceedings in the Confederate States courts by the act . cited above; they were invalid as affecting Leland’s rights to the land.

Affirmed.


text:
    Adam Bradford v. Felix Mann.
    (Case No. 3584.)
    1. Petition— Cured by verdict.—That the sale of a stock of cattle was for a valuable consideration, without stating the price in dollars, is a sufficient allegation to admit proof; if the defendant needs a more specific allegation of the amount, he should except to the sufficiency of the petition, and ;f he fails to do so, his objection, if the petition could be held defective on that account, will be considered waived, and is cured by verdict. De Witt v. Miller, 9 Tex., 245; Ch. Pl., 712.
    2. Statement of facts — Charge of the court.— Where there is no statement of facts in the record, or bill of exceptions, it will, on appeal, be presumed such a state of facts was proven as justified the charge. Cannovan v. Thompson, 12 Tex., 248.

      3. Verdict—Interest — Damages.— In the absence of a statement of facts, where damages are alleged for fraudulent representations, entitling plaintiff to recover, though no interest is claimed in the petition, it will be presumed that the necessary proof was made, and the verdict of the jury calling for interest-, when damages is meant, or when interest is given as damages, is not cause for the reversal of the judgment. Close v. Fields, 13 Tex., 637; Calvit v. McFadden, id., 335; Fowler v. Davenport, 21 Tex., 634; Anderson v. Duffield, 8 Tex., 237.
    • Error from Menard. Trial below before the Hon. W. A. Blackburn.
    This suit was instituted by Mann against Bradford for recovery of damages alleged to have been sustained by him by reason of the wilful misrepresentations of Bradford in relation to a,stock of cattle sold to Mann by Bradford. The damages are laid at $1,896. The petition alleges that on the 7th day of May, 1874, for a valuable consideration, namely, for the sum of-dollars in coin, defendant sold to plaintiff all the stock of cattle and all claims arising therefrom as specified in the bill of sale, known as the “Bradford stock.” That Bradford represented to him that the “ stock had very valuable claims against responsible persons for cattle to be .accounted for (especially against one G-hoison), amounting ,to more than one hundred bead and more than seventy beeves, worth $L4 per head, who was still indebted therefor; that he believed those representations to be true, and ivas influenced thereby to pay defendant a large price for the .claims and cattle; that' these representations were untrue, and that Bradford knew it. That the claim against Gfholson for cattle was in truth but for seven bead of beeves, and •seventeen head of other cattle of said stock, and that thereby he sustained an actual loss of $896, and other damage $1,000, for which he prays judgment.
    Defendant answered, admitting that he sold the plaintiff the Bradford stock and delivered him a bill of the sale, but •denying that he made any representations to him respecting the claims, alleging that plaintiff knew the value of the •.claims as well as he did, etc.
    The cause was submitted to a jury, who returned a verdict for plaintiff for $896 in coin, and $131.47 interest and costs, and judgment was accordingly rendered for $1,027.41.
    The case is brought here by writ of error, and it is assigned for error:
    1. That the court erred in permitting judgment to be en-
    tered in this case, because the petition sets up a nudum pactum;-dollars being no consideration for any contract.
    2. The court erred in overruling defendant’s motion for a new trial for reasons set forth in the motion, viz., the written agreement of the attorneys to continue the case.
    3. The court erred in instructing the jury that they could find for the plaintiff upon a certain supposed conjunction of circumstances, because the pleadings do not warrant such a supposition.
    4. There is nothing in the record to support the verdict or the judgment of the court.

      Partis & Robinson and Bethel Ooopwood, for plaintiff in error.

      Jas. HI. Burts and A. 0. Cooley, for defendant in error.
   Quinan, J.

I. The plaintiff in error insists that in consequence of the omission to state the sum of money paid by Mann to Bradford for the stock of cattle, in the petition, it does not disclose a consideration for the sale; that it was therefore a nudum pactum, “ which cannot inflict an injury capable of legal redress.”

The petition does allege that the sale was for a valuable consideration in coin, and this, we think, was sufficient. If the defendant needed a more specific allegation of the amount, he should have excepted to the sufficiency of the petition, and not having done so, this objection, if the petition could be held defective on that account, must be considered waived, and is cured by verdict. DeWitt v. Miller, 9 Tex., 245; Ch. Pl., 712.

II. The second assignment of error is not sustained by the record. It does not appear that there was any application for a continuance made, and there is no order overruling a motion for a new trial.

[Opinion delivered May 10, 1880.]

III. The third assignment cannot be sustained. There is in the record no statement of facts or bill of exceptions. We must presume that such a state of facts was proven as justified the charge given. Cannovan v. Thompson, 12 Tex., 248. And the assignment is altogether vague and indefinite.

IY. The fourth assignment, so far as it relates to the supposed defective statement of the consideration in the petition, need not be further noticed. And the allegations of the petition we think were sufficient to support the verdict and judgment of the court. The petition set up a transfer for a valuable consideration of the Bradford stock and the claims belonging to it with it, and especially one for over one hun. dred head of cattle and seventy beeves, worth $14 a head, against Gholson; that Bradford so wilfully misrepresented the fact to be; that relying upon this representation Mann purchased, and paid a large price for the stock; that the claim against Gholson turned out to be one for only seven beeves and seventeen head of cattle, and that he suffered a loss of sixty-four head of beeves of the value of $896, and damages $1,000.

The verdict of the jury was for $896 and $131.41 interest. The judgment rendered is for $1,027.41.

The plaintiff alleged damages, and would upon proof of the delinquency or fraudulent representations of defendant be entitled to recover them, and we must assume that the necessary proof was made. Though there was no claim for interest eo nomine in the petition, yet the verdict of the jury calling for interest, when damages was meant, or when interest was given as damages, is no cause for the reversal of the judgment. And the allowance of interest does not seem to have been an improper mode of computing damages in the circumstances of this case. Close v. Fields, 13 Tex., 627; Fowler v. Davenport, 21 Tex., 634; Anderson v. Duffield, 8 Tex., 237; Calvit v. McFadden, 13 Tex., 325.

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

Affiemed.