text:
    Tacitus Clay v. Heirs of Nestor Clay.

    (No. 184 or 243.)
    Trespass to try title — Colonization laws —Illegal sale.— Upon the two former appeals of this case the court negatives the first proposition in this appeal “that the sale by Nestor Clay in 1830 was prohibited by the laws then in force, was a nullity, passed no title to the vendee, and is no bar to a recovery by the heirs of the vendor.”
    Same — Sale — Conditions precedent — Evidence.—Proof of a proposal to make a conditional gift, when the latter is wholly unconnected with the contract, does not support the allegation of a conditional contract of sale.
    Same — Alienage.— Held, that it must be ruled negatively “ that at the time of the sale Tacitus Clay was, and for years afterwards continued to be, an alien, incapable of taking land by purchase, and that for that reason he could not hold against the heirs of the vendor.”
    Appeal from. Washington county. Opinion by Delaney, J.
    Statement.— This is an action of trespass to try title, filed by appellees as heirs of Bestor Olay, to recover of appellant a quarter of a league of land in Washington county, known as the Hickory Point place. The case has already been twice before the supreme court, and its previous history will, so far as reported, be found in 26 Tex., 24-31, and 35 Tex., 509-34.
    After the reversal of the judgment on the first appeal, the defendant amended his pleadings, and alleged that at the date of his purchase of the land he was a citizen of Texas; that he was received and recognized as a colonist by the properly constituted authorities in 1831, and again in 1833, and that he received from the colonial government a grant of land as a colonist of Austin colony, and he annexed to his answer a copy of his application, dated June 6, 1831, and of the grant, dated March 25, 1833. That he took possession of the land purchased from Bestor Olay, and made large improvements upon it; that, at great expense, he had introduced and established upon the land in controversy a blacksmith and a physician, besides locating upon it a store to supply the settlement with goods, drugs, medicines, arms and ammunition to defend themselves against the Indians. Upon the second appeal the supreme court took no notice of the question of alienage which had been raised by the defendant’s exceptions and passed upon in the first opinion.
    Upon the last trial the same questions were again litigated— the illegality of the sale of Bestor Clay, and the alienage of the defendant; but there was also brought in another issue, viz.: that the sale of Bestor to Tacitus Clay was made upon the condition that he should settle upon the land and bring to Texas the mother and sister of Bestor Clay.
    Plaintiffs averred that these were conditions precedent, and had not been performed.
    The trial was had at the March term, 1874, and judgment rendered for the plaintiffs for the land and for the sum of $15,658 for use and occupation.
    Motion for new trial overruled, and plaintiff appealed.
    The charge of the court related to the three issues above set forth, to wit: the illegality of the sale by Bestor Clay to the defendant by reason of the prohibitions contained in the colonization laws, and the capacity of Bestor Clay to ratify the sale after the 26th of March, 1834; the alien-age of the defendant, and the conditions upon which the sale was alleged to have been made. There were also charges upon the statute of limitations, which, however, is not made a question on this appeal.
    Upon the subject of alienage the court charged as follows:

      “ By the law then in force an alien was incapable of taking land by purchase, and a sale of land to an alien and non-resident was a nullity. Upon this question you are instructed that the recitals contained in the grant to Tacitus Clay may be read in evidence, but are not conclusive proof of the facts therein recited, in any controversy not in relation to the particular tract of land embraced in the grant; and the jury must determine, from all the facts and circumstances given in evidence before them, whether the defendant, Tacitus Clay, was or was not an alien and non-resident of Texas.”
    The last paragraph of the charge was as follows: “The payment of §80, mentioned in the bond signed by Nestor Clay, is acknowledged by the plaintiffs to have been made as stated. But if you should believe from the evidence that there were other conditions annexed to the contract, and that they were conditions precedent, to be performed before the title should pass, then the defendant must prove a performance of the conditions before he can demand a title.”
    Thirty-one charges were asked by the plaintiffs, all of which were given, four of them relating to the conditions supposed to have existed in the sale. The last two were as follows: “ 80. If it was a sale upon conditions to be performed before the title vested, it does not matter how hard or impossible to perform the conditions might be, the defendant took no right under it until he had performed the conditions.
    “31. If the evidence shows that the sale was made upon precedent conditions it is not necessary for the plaintiffs to prove that they were not performed; the defendant must show that they were performed in order to maintain his title under such sale.”
    The twenty-ninth charge asked and given was to the effect that if the jury believed from the evidence that Nestor Clay made a valid sale upon conditions, “ the defendant can acquire no right under such a contract unless he has shown that he complied with all the conditions of it.”
    Twelve of the charges asked by the plaintiffs, and given, related to the alienage of the defendant and his domiciliation abroad. Two of these charges were as follows:
    “4. If the plaintiffs have shown that the defendant was born in the state of Kentucky, and was a citizen thereof, then the burden of showing that he afterwards removed to Texas, and became domiciliated there, before the death of Nestor Clay in 1835, is upon the defendant; and in the absence of proof you should find for the plaintiffs on that issue.
    “ 5. The grant from the government to the defendant in 1833 of lands on the Navidad does not establish his citizenship in this controversy.”
    The defendant asked twenty-eight charges, all of which were refused but three, and two of the three were given with qualifications.
    The second charge asked by defendant, and given with a qualification, was as follows:
    “ If the jury believe from the evidence that Nestor Clay sold the land to defendant and put him in possession of the same before the 26th of March, 1834, and that "after that date the said Nestor recognized and acknowledged defendant’s title tp the land, and consented to a survey of the same for defendant, and permitted defendant to remain in possession, and by himself or his agents to make valuable improvements, claiming' it as his own, then such acts on the part of said Nestor ratified and confirmed the title of defendant, and rendered said sale valid and binding on said Nestor, and on his heirs, the plaintiffs in this suit.”
    This charge was given with this qualification:' “ But if the evidence shows the contract to have been executory, and on conditions, then the defendant must show that the conditions were complied with, before that result would follow, and he must also prove that he was a citizen of Texas prior to the death of Nestor Clay.”
    Two of the charges asked by the defendant, and refused by the court, were as follows:
    “26. If the jury shall believe that there were conditions coupled with the sale of the land, at and before the date of the title bond, in 1830, still, if the jury shall further believe that afterwards Nestor Clay, on and after March 26, 1834, and up to the date of his death, put Tacitus Clay in possession of the land, had it surveyed, and allowed defendant to expend his labor and money in putting valuable improvements on the land, then the jury have a right to presume that all such conditions had been waived or complied with, and the heirs of the said Nestor cannot now take advantage of what their father had waived; and if the jury should believe that Nestor Clay sold the land to Tacitus and put him in possession, . . . and after March 26, 1834, allowed Tacitus to remain in possession, . . . and up to the time of his death stood by and allowed defendant to expend his labor and his money in making valuable improvements on the land, under the belief that his title was good, then the heirs of Nestor Clay are estopped from attacking defendant’s title.
    “ 27. When a contract is reduced to writing, it is presumed in law that all the stipulations of the contract were included in the writing; and if the jury believe that Nestor Clay sold the . . . land to . . . defendant, and that the title bond in evidence was executed in pursuance of the contract, then the law presumes that all of the contract was included in the writing, and the jury will look alone to the title bond to ascertain what the contract was.”
    Tacitus Clay married in Kentucky, in 1839, and the proof of his alienage consisted of his acts and declarations at various times, from about the year 1835 up to 1846, when he brought his family to Texas and settled them upon the land. In two deeds, made by him in 1845 and 1846 to lands in Kentucky, he styles himself a resident of the county of Davis, state of Kentucky. Defendant objected to the introduction of the recitals in the deeds; the objection was overruled, and he excepted.
    The defendant asked charges to the effect that if he were a citizen of Texas in 1833 or 1834 it must be presumed that he remained a citizen until his abandonment was proved by clear and satisfactory evidence.
    And further, that if defendant had purchased the land prior to March 26, 1831, and this purchase was ratified by ¡Nestor Clay after that time, no subsequent abandonment of the country by defendant could vest title in plaintiffs.
    These charges were refused:
    The assignments of error, nineteen in number, present somewhat vaguely all the issues above mentioned, and some others which we have not thought it worth while to state.
    The following is a copy of the title bond. The defendant alleged that his name was omitted by mistake:
    “For and in consideration of §80 in hand paid, the receipt whereof I hereby acknowledge, I bind myself, my heirs, executors and administrators to convey, and at any time when demanded to give possession, to a quarter of a league of land, on league on which I now live, beginning on the southeast line, which runs entirely in the prairie; thence to the back line, which runs northwest, running in the timber.
    “The plat of it is below. May 15, 1830.
    [Signed] “Nestob Clay.
    “ Attest: John Cole.”
    This instrument was proven by the subscribing witness and recorded in 1839.

       This case has already been twice before the supreme court and was reported in 26 Tex., pp. 24-31, and 35 Tex., pp. 509-34.

   Opinion.— Three distinct propositions were asserted by appellees in the court below, and appear to have been maintained by the judgment which is before us for review:

1. That the sale by Nestor Clay to Tacitus, in 1830, was prohibited by the laws then in force. It was therefore a nullity; it passed no title to the vendee, and is no bar to a recovery by the heirs of the vendor.

2. That the sale was made upon conditions precedent, and in the absence of affirmative proof by the defendant that he had performed those conditions he could not hold the land against the claims of plaintiffs.

3. That at the time of the sale Tacitus Clay was, and for years afterwards continued to be, an alien, incapable of taking lands by purchase, and for that reason also he could not hold against plaintiffs.

We consider the question involved in the first of these propositions as effectually settled against appellees by the supreme court upon the two former appeals.

The court assigns a different reason for its ruling in each case, but the substantial result is the same.

We remark, further, that the decision of this question upon the two former appeals can be fully sustained upon another ground, not mentioned in either of the opinions, but we will only allude to it, as we consider this issue fully settled. Tacitus Clay is not a plaintiff seeking to enforce an illegal contract. He is a defendant in possession under a written agreement executed many years ago, the possession having been delivered by the vendor pursuant to the contract. Plaintiffs, as heirs of the vendor, are, in effect, seeking to rescind that contract and oust the defendant from his long-continued possession, upon no other ground whatever than the illegality of the sale. They aver that their ancestor, in selling the land, violated a positive provision of the colonial law; that the sale was void and passed no title to the vendee; that the title remaining in their ancestor after the sale descended to them, and hence they ought to recover. They do not pretend that Hestor Clay was a man of weak mind, or that he was overreached or defrauded by his brother. They present nothing to excuse or palliate his violation of the laws of his country; but they rest their right to recover solely upon the wrongfulness of his act. Counsel for appellées refer us to a number of cases

in which our supreme court has refused to enforce these contracts, but to none in which they have been rescinded. Were these contracts absolutely null and void? We incline to think not. It is certain that our supreme court has always treated them as susceptible of ratification, and even of being specifically enforced upon equitable grounds.

In Soye v. McCallister, 18 Tex., 98, Justice Wheeler, in speaking of these contracts, says: “It is unnecessary now to discuss the question whether this agreement was, to all intents and purposes, null, or was only so far inoperative and ineffectual as that it could not be enforced unless it was validated by the grantor after the removal of the legal impediment; or unless there were supervening equities which had the effect to make good the title in the purchaser. Whatever theoretical opinion may be entertained of the question, it cannot be denied that practically the latter view of it has been maintained.” Citing 1 Tex., 748; 9 Tex., 385; 14 Tex., 545.

But appellees also maintain that the sale was made upon conditions precedent. We can see no merit in this part of the case, but it is seriously urged by counsel. It was made a part of the general charge by the court below, and after-wards repeated in such a variety of forms, in the shape of charges asked by plaintiffs, that the jury must have thought it a matter of importance. We will, therefore, consider the evidence upon which it is based.

Upon the same paper which contains the written contract, but below the signatures of Bestor Clay and the subscribing witness, occur the following words. We give them as they are written:

“ All my grand-maws two must come out and all my aunts two put that down all what mother says.”

There is no signature to this latter writing, but counsel insists that these words form a part of the contract of sale. If so, they must be taken as the words of the contracting parties, and as written by Bestor Clay. The words “ grand-maws ” must, we suppose, be taken to mean grandmothers, yet the record does not show that they had, at that time, or afterwards, either an aunt or a grandmother living.

This is the written testimonjL In addition, two witnesses testify that they once heard Bestor Clay tell his brother, Tacitus, that he would give him a quarter of a league at Hickory Point if he would bring their mother to Texas, and live there.

Bo time is mentioned when this proffer was made, nor any circumstances to connect it with the sale; in fact, the witnesses state that they heard nothing said about the sale. Why this testimony was not objected to we do not know; but it amounts to nothing, and a verdict found upon it must have been set aside as being without evidence to support it. For if we take the written words at all, we must take them in their appropriate meaning. And so taking them, we cannot see how the declaration that an indefinite number of grandmothers and aunts must come out can be construed into an objection upon the part of Tacitus Clay to bring to Texas the mother and sisters of Nestor; nor can we see how the allegation of a conditional contract of sale is supported by proof of a proposal to make a conditional gift, when the latter is wholly unconnected with the contract. We think, therefore, that the court erred in giving the charge in chief upon the subject, and also in giving those asked by the plaintiffs as well as in refusing those asked by the defendant. And we cannot know what influence this action of the court may have had upon the jury.

We come now to the question of the alienage and non-residence of Tacitus Clay, and upon the threshold of this inquiry we are confronted by the appellees with the following propositions: . “The decision of this court in this case upon the question of title, as affected by the ■ alienage and non-residence of Tacitus Clay at the time of his pretended purchase, and of the subsequent ratification of the same, is the law of this case, binding alike on the parties, the court below and the appellate court.”

The general rule asserted in this proposition is doubtless founded in wisdom and sound policy; but it has not been implicitly followed, by the courts of this state, gee Meyers v. Dittman, 47 Tex., 378; Layton v. Hall, 25 Tex., 204; Reeves v. Petty, 44 Tex., 254-5. But supposing the rule to be correct, it applies only when there is substantially the same state of facts upon the last as upon the first appeal. American Law Review, vol. 1, p. 612, cited by counsel.

Upon, the first appeal the question was decided upon a demurrer which admitted the alienage and non-residence of Tacitus Olay. The question which seems to have been-decided by the court upon the first appeal was, Could a nonresident alien take land by purchase under the colonization law of 1825?

The question now is, Was Tacitus Olay in 1830, and at the death of Hestor Clay, such an alien and non-resident as to incapacitate him to take by purchase the land in dispute; and the further question, Can the plaintiff, in view of all the facts and circumstances proven in the case, be heard to assert such incapacity? Whatever might be our views upon the question decided upon the first appeal, we do not feel called upon to review that decision. We do not propose to discuss the laws and policy of Spain concerning foreigners; for in the cases of Holliman v. Peebles, 1 Tex., 673, and Yates v. Iams, 10 Tex., 168, the learned Chief Justice Hemp-hill, after endeavoring in vain to explain the subject, abandoned the fruitless search and rested his decision in both cases upon the colonial laws of 1823.

But in the case of Yates v. Iams, 10 Tex., 169-70, he says that one of the methods by which a foreigner might acquire domiciliation was “ that of attaching himself to the soil by purchasing and acquiring real property and possessions. Domiciliation is in most respects equivalent to naturalization.”

And after quoting a number of authorities he again says, page 170: From a review of the above, it appears that the acquisition of real property and possession is a badge, or rather a conclusive evidence, of domiciliation, or its equivalent, naturalization.” There were many reasons why Mexico, after her revolt from Spain, should abate much of the rigor with 'which the mother country had formerly treated foreigners. We need not delay to mention those reasons; but her liberal policy clearly appears in her colonization laws. In response to the invitation contained in the law of 1825 (Pasch. Dig., art. 563), Tacitus Clay came to the country as a colonist. He was received as such, and obtained from, the government a grant of land* as a colonist, very near the time at which he bought from his brother the land now in litigation. He brought to the country what must have been regarded, at that time, as a large amount of property — consisting of slaves, live stock, merchandise, drugs, medicines, arms, ammunition, etc. He introduced, and settled upon this tract of land, a number of immigrants, among them a physician and a blacksmith — quite an accession, we may be sure, to this feeble, primitive settlement.

"We take it that these facts are proof conclusive of his citizenship. How, if he afterwards abandoned the country, the colonial authorities might declare vacant the lands which he had received from the state; but could his brother, or his brother’s heirs, assert that, by reason of his abandonment, this tract of land reverted to them? If there be anything in the laws of Spain or Mexico which would sanction such pretensions on their part, it has not been pointed out.

In the case of Bowmer v. Hicks, 22 Tex., 161, Justice "Wheeler uses this language:

“ That the grantee possessed all the requisite legal qualifications to entitle him to the grant, and that the grant itself concludes all after-inquiry upon that subject, has been repeatedly decided.”

Counsel admit that, in a contest with the colonist about the title to the land granted to him, the grant is conclusive; but they insist that in contests about other matters the grant would be only prima facie evidence, even if it amounted to so much as that.

But we know of no cases in which such inquiries have been allowed, nor can we conceive of any cases in which they should ever be allowed, except in a contest about the title to the very land granted.

In our earlier judicial history, an opposing claimant was permitted to question the validity of a colonial grant, upon allegation of fraud upon the part of the grantee in obtaining it.

The evidence was required to be brought forward within a reasonable time. But it would be strange, indeed, that a naturalized citizen should be compelled'to prove his citizenship, by parol evidence, as well as by writing, against all challengers, in all sorts of contests, and this, too, after an indefinite lapse of time.

If a foreigner was naturalized in this country to-day, surely no court would require him twenty years hence to produce any other than the written evidence of the fact.

After so long a lapse of time, every reasonable — almost every possible — presumption would be indulged in favor of the capacity of the defendant to take the land.

To show how our courts have treated the acts and adjudications of the'former governments, we refer to the case of Holliman v. Peebles, 1 Tex., 673. Holliman’s title was vacated in 1830. The land was granted to Peebles in 1831. Holliman died in 1833, and his heirs brought the suit in 1840. In that suit they questioned the authority of the ayuntamiento to declare the land vacant, and Chief Justice Hemphill said: “ This presumption will not, in this case, be adduced in support of the action of the ayuntamiento, but a strong one arises in favor of their authority, from the long acquiescence of all the' parties whose titles were annulled or affected by the proceedings.

“ That redress could have been obtained under the former government against the illegal and unwarrantable proceedings of the inferior authorities cannot be doubted. Why this was not attempted has been left wholly unexplained.”

In that case there was a delay of only seven years.

Here Tacitus Clay bought in 1830, ¡Nestor died in 1835, and this suit was brought in 1851. But it is alleged that the plaintiffs were minors. Their ancestor, -however, was not. But even minority itself is not a perfect protection against that unalterable rule, inherent in all systems of jurisprudence, that long lapse of time fortifies possession by lending to it every wholesome and healing presumption that it had a legal beginning.

In treating of a similar subject in a case where heirs sought to set aside a judgment of manr years’ standing, and alleged their minority, Chief Justice Robertson used this language: “It does not appear how long the heirs labored under disabilities; but no disabilities which can be presumed to have existed should materially affect the point we are now considering, for the chief efficacy of the long lapse of time does, not arise from actual or presumed acquiescence merely, but results principally from an inflexible rule of law, established for securing ■ the repose of society, and founded on the presumption, sustained by the experience of mankind, that, considering the nature of the fact attempted to be proved, the kind of evidence offered to prove it, and the obliterating influence of a lapse of more than twenty years, it is safer and more reasonable that the judgment should stand and long possession under it remain undisturbed than that both should be assailed bjT testimony which, however false, the defendant could not be expected to repel.” 4 Dana (Ky.) Reports, 422. Under the circumstances of this case nothing but the clearest light and the most imperative duty could justify the court in overturning a title and ousting a possession older than the Republic itself. And certainly we cannot grope our way through the dim twilight which has been shed upon the laws of Spain and Mexico to such a result. In our opinion the plaintiffs should not be heard to question the capacity of the defendant to take, by purchase, the title to the land.

We therefore recommend that the judgment be reversed and the cause remanded.

Without intending to adopt fully all that is said in the • opinion, we do concur in and adopt the conclusions reached in the opinion on each of the questions discussed. The judgment is accordingly reversed and the cause remanded.

ReVBBSED A5D BEMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    Falls County Turnpike Road & Bridge Co. v. J. D. Jordan.
    (No. 5474.)

    Damages.— Injury to person; pleading.
    Demurrer, general, -will not reach a merely informal or defective averment if a cause of action be shown.
    Appeal from Falls county. Opinion by Walker, J.
    Statement.— This was a suit brought by the appellee against the Falls County Turnpike Road & Bridge Company. Petition alleged that they owned a toll-bridge built across the Brazos river, under an act of the legislature entitled “An act to incorporate the Falls County Turnpike Road & Bridge Company.”
    Plaintiff sues for $3,000- for an injury inflicted upon him whilst crossing the bridge, occasioned by a spike nail having passed through his foot, the nail having been improperly exposed to the surface of the bridge, through the negligent act of the defendant. The petition further alleged defendant had laid and scattered upon the floor loose planks and timbers in which were nails and spikes turned upward.
    Petition also alleged that plaintiff had paid the toll or fare for crossing said bridge with his wagon and team.
    He alleged that he was an agriculturist, dependent on his labor to support himself and family; that he leased land for cultivation in 1875; by reason of said -wound, inflicted the last of January, 1875, he lost his crop and labor for that year, worth to him $1,500; medical aid at cost of $-; and by reason of the premises was damaged $3,000. Defendant answered by general demurrer, etc., with plea of contributory negligence on the part of the plaintiff in driving upon said bridge a team of unruly oxen.
    The court overruled the demurrer; verdict and judgment for the plaintiff for $75. ■ Motion for new trial by defendant overruled.
   Opinion.—The petition sets forth a good cause of action. The only, objection urged against its sufficiency,in the brief of the appellant’s counsel, relates to the want of certainty in the averments which are descriptive of the defendant in this suit. It is urged that it is not alleged that the Falls County Turnpike Road & Bridge Company was a corporate body, having and exercising corporate powers, capable of being sued, of contracting, etc., and responsible for its contracts or torts. The averments in the petition imply sufficiently, under a general demurrer, the reverse of the appellant’s assumption under the proposition referred to. A general demurrer will not reach a merely informal or defective averment; if a cause of action be shown, but be informally or defectively stated, the objection must be taken by a special demurrer. Frost v. Sweet, 2 Tex., 485; Dobbin v. Bryan, 5 Tex., 276; Wells v. Fairbanks, 5 Tex., 582; Warner v. Bailey, 7 Tex., 517.

Nor did the court err in admitting evidence to establish amount of physician’s bill incurred by plaintiff, objection being that allegations in the plaintiff’s petition would not admit proof. But the petition did not allege the amount of said bill; and the defendant having gone to trial without excepting to the petition specially by pointing out such indefiniteness, objection to evidence to establish the amount will not be heard. Frost v. Sweet, 2 Tex., 485.

The admission of evidence as to time lost by plaintiff was proper under the allegations.

The court properly held that the damage claimed by reason of loss of crop which he expected to raise was too remote to afford a ground for recovery.

There was testimony tending to support the ‘plaintiff’s action, and upon the issues submitted to the jury their verdict is not contrary to the evidence.

Affirmed.


text:
    J. R. Green v. Bear Bros. & Hirsch et al.
    (No. 1174.)
    Landlord's lien.—Statute construed; injunction.
    Appeal from McLennan county. Opinion by Watts, J.
    Statement.— Marx & Kempner and Locke & Wilkins had instituted suits in the district court of Galveston county against Bear Bros. & Hirsch, residents of McLennan county, and caused writs of attachment to issue to McLennan county, by which the property in question had been seized, after which Boot & Dow 'and Milly & Porter instituted suits against the same defendants, and also obtained attachments which were levied upon the property. After which, on October 30, 1880, appellant applied to a justice of the peace of McLennan county for a distress warrant against Bear Bros. & Hirsch, on a claim for rent for $3,262, of which $116,50 was then due, and it was claimed was to become due. This distress warrant was issued and levied upon the property in controversy and returned into the district court of McLennan county.
    Appellant, on the first day of the next term of said district court, November 1st, filed his petition, setting out his cause of action, and on the 3d day of November, 1880, filed, under leave, his first amended original petition, in which he sets out the written contract of lease between plaintiff and defendants, Bear Bros. & Hirsch, which was executed and delivered December 16,1879, being a lease of a certain store-house, in said lease described, for a term of three years from January 1, 1880, for which said lessees were to pay rent monthly at the rate of $116.50 per month, first instalment on the 1st day of February after, and the same amount to'be paid on the 1st of each succeeding month, with the usual covenants to pay rent and to surrender at the end of the term and not to alter premises without consent.

      Plaintiff alleged the issuance and levy of said distress warrant, but that said levy was not sufficient to satisfy his demand, because Marx & Kempner and others mentioned had levied writs of attachment on the property of Bear Bros. & Kirsch, and claiming that plaintiff’s landlord lien is superior to.said attachment liens, and that he fears said attaching parties will waste said property, etc. Plaintiff asks that said attaching plaintiffs be made parties defendant and enjoined from the further prosecution of said attachments upon said property until the final adjudication of plaintiff’s lien; asked that said lien be declared superior ,to said attachment liens, and that a "writ of sequestration issue to seize said property on said premises not levied upon by said distress warrant, a list of which is given, and that the same be subjected to plaintiff’s lien. Plaintiff alleges his debt past due and prays for judgment, and that said property be condemned and sold, that a receiver be appointed to appropriate the proceeds of said property to the payment of his debt as it becomes due, etc.
    Writs of injunction and sequestration were accordingly-issued and returned into district court of McLennan county. On May 10, Bear Bros. & IIirsoh, defendants, filed a general denial. The other attaching defendants also filed a general demurrer and special answer, and also a motion to dissolve the injunction because of insufficiency of petition and want of jurisdiction. On the 29th of June, 1881, came on to be heard the motions to dissolve the injunction and their demurrers, and it was adjudged that the injunction be dissolved, that the demurrers to the amended original petition of plaintiff be sustained, and that said petition be dismissed and plaintiff take nothing, and defendant go hence and recover costs, etc., from which judgment plaintiff appealed.
   Opinion.— In disposing of this appeal it becomes necessary to construe that section of our statute giving to landlords a lien on the property of the tenant for rents due and to become clue, for any residence or store-house or other buildings, in conjunction with the contract of lease upon which the appellant predicates his rights. See art. 3122, K. S.

The point presented bj?- appellant and urged as ground for reversal is this: That under the provisions of this contract of lease, and by virtue of the above article, he had a preference lien upon all the property of the tenant in the rented house for the payment of the rent due, accruing and to become due under contract. We do not so construe the statute. Such a construction would apply to a lease of fifty years as well as three years. As to writs of injunction, see K. S., art. 28S0. We are of the opinion that the court did not err in quashing the writ of sequestration and in dissolving the writ of injunction, and, as the court had no jurisdiction of appellant’s claim, it correctly sustained the demurrer and dismissed the petition.

Judgment affirmed.


text:
    Kelso v. Adams.
    (No. 3017.)
    Jurisdiction — Plea of privilege.— Requisites of plea. Continuance ; consent of, a waiver.
    Appeal from Uvalde county. Opinion by Delaney, J.
    Statement.— This suit was brought in the district court of Uvalde countjq -by appellant against appellee, to recover the sum of §763. The petition ivas filed August 6, 1875, alleging a verbal contract between the parties bxr which appellant was to deliver to the appellee at Steel’s ranch, in said county, on the 2d day of April, a number of cattle at $1, coin, per head; that the contract was made March 10, 1873; that appellant gathered the cattle to the number of seven hundred and sixty and had them ready at the time and place of delivery, but that appellee refused to claim the cattle or pay for the gathering; and prayed for judgment for the sum of §760, coin, with legal interest from 2d day of April, 1873. January 8, 1875, the case was continued for service. Citation issued January 23, 1875. May 17, 1875, the cause was continued by consent. September 22, 1875, being the first day of the term of the court, the" parties filed in the cause an agreement to submit the matter in controversy to arbitration at the same term of court; September 25, 1875, cause was. continued by consent. On January 17, 1876, appellee filed, under oath, a plea to the jurisdiction to the effect “that before and at the time of the commencement of this suit he resided in the unorganized county of Zavala, which is attached to the county of Frio for judicial purposes, and not in the county of Uvalde." On the same day appellant moved the court to strike out the plea, upon the ground that appellee had waived his privilege and submitted to the jurisdiction by consenting to the continuances and by filing papers in the case.
    The court impaneled a jury and instructed them to find in which of the two counties the appellee resided on the 6th of August, 1875, the day suit was filed. The jury returned that he resided in Zavala, and the court rendered its judgment dismissing the suit. From a bill of exceptions it appears that appellant offered to prove by the record that the appellee had filed in the cause the agreement to arbitrate, but the court excluded the evidence. The testimony shows that appellee, at the commencement of the suit, lived within a mile or two from the Uvalde county line and that he resided there until February 25, 1875. Appellant offered to prove that since the filing of the suit appellee had removed into Uvalde county, and was residing in said county at the date of the trial; but the court refused to admit the evidence, to which appellant excepted.
   Opinion.— Our opinion is that the court erred in overruling appellant’s exceptions to the plea to the jurisdiction. Appellee had been duly served with process, and we think that his consent to a general continuance, and especially his agreement to refer the matter in dispute to arbitration, was a submission to the jurisdiction of the court. Our statute requires pleadings to be filed in the due order of pleading. By the old order of pleadings a plea to the jurisdiction could not be filed after a general imparlance. 3 Bl. Com., 301. See, also, Gould’s Pleadings. Where the parties to a cause consent to a continuance, they by that act agree to try the cause before that court, but not at that term; otherwise a defendant might have a case continued until the plaintiff’s cause of action was barred by limitation, and then by interposing mere dilatory pleas dismiss the suit. Appellant also complains that the court imposed upon him the burden of disproving the special plea of appellee. The rule is the reverse. See Robertson v. Ephriam, 18 Tex., 118; also H. & T. C. R. R. Co. v. Gram, 50 Tex., 181, 44 Tex., 304, and Gould’s Pleadings, ch. 3, secs. 57, 58.

We conclude that the judgment should be reversed and cause remanded.

Reversed and remanded.


text:
    A. V. Sewell v. J. P. Laurance.
    (No. 3675.)
    Appeal. — Affidavit in lieu of bond.
    Land certificates, personal property; change to realty.
    Appeal from Dallas county. Opinion by Delaney, J.
    Statement.-— This suit was filed May 4,1871, by appellee againts appellants, Alexander Y. Sewell, Thos. Ritter and his wife, Sarah Yienna Wilson and Rebecca Cleveland, heirs at law of Thos. Sewell and Frances Sewell, his wife. The object of the suit was to remove a cloud from the title to certain lands held in Dallas county by plaintiff. The petition alleged that in 1850 a Mercer colony certificate for three hundred and twenty acres of land issued to James M, Sewell; that on the same day a similar certificate for three hundred and twenty acres of land was issued to Thomas J. Sewell; that said James M. and Thomas J. Sew-ell were sons of Thomas and Frances Sewell; that soon after receiving the certificates said James M. and Thomas J. Sewell died intestate and unmarried, leaving their parents and brothers and sisters surviving them; that the parents inherited the certificates and sold and delivered them to plaintiff, who located them upon the land described in the petition, and obtained the patents, which issued in 1870; that plaintiff paid all expense of surveying and procuring the patents which issued to the heirs of James M. and Thomas J. Sewell;' that defendants are setting up some claim to said land which casts a cloud upon plaintiff’s title?.
    October 6th defendants answered by special demurrer and general denial. January 22, 1875, plaintiff amended, making new parties defendant, averring that Thomas and Frances Sewell died intestate, leaving the following named children: Alexander V. Sewell, Andrew J. Sewell, Sarah Bitter, wife of Thomas Bitter, Vienna Wilson and Bebecca develan l; that Andrew J. Sewell died, leaving a widow, Adaline Sewell, and the following named minor children, to wit: Andrew J. Sewell, Jr., George W. Sewell, John Sewell and James Sewell; that Vienna intermarried with one Heard; that Bebecca first married Butherford and afterwards Cleveland, and died leaving two minor daughters, viz., Susan Butherford and P. A. Butherford, all of whom are made parties defendant.
    September 3, 1875, defendants excepted to plaintiff’s pleadings, because he did not allege the time of .the deaths of James W. and Thomas W. Sewell nor the date when he bought the certificates.
    July 8, 1876, plaintiff amended, stating his purchase of the certificates on the 17th of March, 1855; that Thomas J. and James M. Sewell died about the year 1851; that Frances Sewell died between January, 1861, and 1864, and that Thomas Sewell died between January, 1867, and January, 1869.
    February 8, 1876, defendants pleaded limitation of two, three, four, five and ten years. July 17,1876, the guardian' ad litem of the minors answered by general exception, general denial and the statutes of limitation of two, three, five and ten years. September 16,1876, plaintiff again amended, averring that he bought the certificates from Thomas and Frances Sewell; that the said Frances delivered them to him with her own hands, and that she and her husband named the consideration; that said Frances by her own acts and representations induced him to buy them; that she acted freely, voluntarily arid without constraint of her husband, and that both she and her husband throughout their -whole lives expressed themselves satisfied with the sale, and wished not to retract it, wherefore plaintiff says defendants are estopped to deny the sale.
    The cause was tried July-5, 1877, with verdict and judgment for plaintiff. The testimony showed that the certificates were finally delivered to plaintiff by Thomas Sewell and wife on March 17, 1855, but that before this time plaintiff had been negotiating with them for the purchase; had paid a part of the price; had had the certificates in his possession, and on the 8th of that month he had located part of the land, and had bargained a part of it to a third party, to whom Sewell and wife made a deed on the 17th, the same day the certificates were delivered; that Sewell and wife were willing to make a deed to plaintiff, but he preferred to wait until he could get patents; that Mrs. Sewell herself delivered the certificates, was entirely satisfied with the trade, and so continued ever afterwards until her death; that it was upon her persuasion that her husband finally consented to the sale. Plaintiff had paid a yoke of oxen as part of the price, and on day pf final trade he let them have a.horse worth seventy or seventy-five dollars, some money and executed note. There was some dispute as to whether the note bad been paid. The ¡reason why patents were not issued sooner was that their surveys conflicted with another survey, and plaintiff finally bought out opposing claim, obtained the land, paid taxes on it and had a large part of it inclosed.
    Defendants never claimed the land after salé, nor did they ever pay taxes or have possession of the land at any time. The court among other things charged that land certificates were personal property and that parol sale and delivery would pass title, the certificates and the land upon which they were located, and whether located or not.
    The judge also charged that the husband had no power to sell the wife’s interest in the certificates, but that if Frances Sewell freely and voluntarily sold her interest in certificates, delivered them and received payment for them without undue influence on the part of the husband, she would be estopped to deny the title of plaintiff.
    Verdict and judgment for plaintiff, and defendants appealed.
    The assignments of error relate to the charge of the court and the refusal of charges asked. Transcript filed in supreme court April 1, 1878. At the present term appellee has filed a motion to dismiss the appeal upon two grounds: 1st. Because the affidavit filed in lieu of an appeal bond does not describe the judgment. 2d. Because record does not show that affiants were parties to the suit.
   Opinion.—As to first objection the record contains enough to give the supreme court jurisdiction, and that is sufficient. In the affidavits the affiants state they are parties defendant to above-entitled cause. Motion to dismiss should be overruled. The first assignment of error questions that part of the charge to the effect that land certificates are personal property, and pass by delivery. This is certainly correct. See Stone v. Brown, 54 Tex., 330; Johnson v. Newman, 43 Tex., 640; Cox v. Bray, 28 Tex., 247; Randon v. Barton, 4 Tex., 292. These cases, however, refer as a general rule to unlocated certificates.' As to that part of the charge which says it is immaterial whether the certificate was located on land or not we think is not correct. As soon as certificates are located the right of the owner attaches to the land, and all subsequent transfers must be in writing.

The appellants insist that Mrs. Sewell was a married woman, that it was her separate property, and whether real or personal, the conveyance must have been in writing and acknowledged by her upon privy examination. Pasch. Dig., 1003. Also see Womack v. Womack, 8 Tex., 307. Admitting the contract was not binding upon Mrs. Sewell, and that she might within a reasonable time have had it set aside upon restoration of the purchase money, still it does not follow that the right would survive to her descendants for an indefinite period of time.

The case may be summed up thus: The plaintiff made this purchase in March, 1857. The verdict establishes the fact that he paid the consideration, and for more than twenty years he was occupied with his endeavor to perfect the title, which he finally accomplished bi' buying out and thus quieting some opposing claims. A quarter of a century after the original purchase the heirs of the vendors, who have done nothing, come forward and ask-that the land, with its accumulated value from expense and labor of plaintiff, be decreed to them because their grandmother did not sign a deed and acknowledge it properly; and they do not propose to make the slightest return to plaintiff. To state such a proposition is to answer it. Hart v. Turner, 9 Tex., 385; Mills v. Alexander, 21 Tex., 154.

Affirmed.


text:
    Le Gierse & Co. v. Getzendaner & Ferris et al.
    (No. 4564.)
    Lien, judgment—Requisites of record.— Interest in land under verbal agreement not subject to seizure and sale.

      Appeal from Ellis county. Qpinioii by Watts, J.
    Statejient.—- Appellants, Le Gierse & Go., as plaintiffs below, brought this suit on August 25, 1881, in the form of an action of trespass to try title, divest and vest title, etc., against Getzendaner & Ferris and others, defendants be low, to recover title to certain town lots in the town of Waxahatchie, Ellis county, Texas, setting out a full description of said lots, and claiming title to same by virtue of a sale under an execution issued out of the county court of Collin county, Texas, on a judgment in favor of Le Gierse & Co. v. Ingram & Co., on the —— day of January, 1881, an abstract of said judgment having been tiled in the clerk’s office of Ellis county, and recorded in judgment record book thereof, November 10, 1881, thereby creating a judgment lien on said property as the property of S. K. Ingram, defendant in execution, said Ingram having contracted, bought and paid II. II. Dunn for said property. That, by collusion and fraud of defendants, H. II. Dunn was induced to make deed to Getzendaner & Ferris on or about March 23,1881, thereby defrauding plaintiffs of their ■just and equitable rights, acquired by virtue of their judgment and execution lien.
    At the first regular court defendants Getzendaner c% Ferris filed their original answer, September 9,1881, pleading by general denial and general demurrer. At same term of court, on the 28th of September, 1881, said Getzendaner „ & Ferris filed their amended answer, pleading general demurrer and claiming all of said property in controversy except lot No. 25, in block No. 9; also general denial and plea of not guilty; and on said last date defendant II. H. Dunn filed his a,nswer, presenting issues of general demurrer, general denial and disclaimer of ail the lots in controversy except lot 25, block 9, and plea of not guilty. By agreement cause tried by the court, and judgment for defendant, from which plaintiffs, Le Gierse & Co., have appealed.

      The first assignment of error is as follows; “The court erred in excluding and refusing to hear and consider as evidence the original abstract of judgment rendered in the county court of Collin' county, in favor of plaintiffs and against S. K. Ingram and Thomas Gray, as shown by plaintiff’s bill of exceptions Ho. 1, the same being a judgment properly placed on the abstract records in Ellis county, and thereby becoming a lien upon.the lots in controversy.”
   Opinion.— One of the questions in this case is as to the effect of an omission to state in the abstract the amount still due upon the judgment. But if the abstract had been recorded in all respects as required by law, the judgment would not be reversed on account of the erroneous exclusion of the same.

Ingram, defendant in that judgment, never had any such interest in the land in controversy as would be the subject of seizure and sale, or to which a judgment lien would attach. He could not have maintained an action against Dunn for specific performance, or recovered of him the land. At most, it was a verbal agreement between Ingram and Dunn to convey land in consideration of labor to be performed.

In the case of Stevens v. Lee, it was held such an agreement could not be enforced.

Judgment affirmed.


text:
    Lichtenstein Bros. & Co. v. Loewnstein & Elias.
    (No. 911.)
    Composition with creditors.— Avoidance of agreement; representations of debtor.
    New trial, not granted when.
    Appeal from Galveston county. Opinion by Walker; J.
    Statement.— This suit was brought by appellants, who reside in Hew York city, against appellees, who reside in Galveston, Texas, June 22, 1875, on four promissory notes aggregating 82,634.55, subject to a 'credit of §790.36, and an attachment was run on nine casks of merchandise alleged to have been secreted in Houston, Texas, by appellee. Appellees answer that on the 18th of June, 1875, they had fully paid and satisfied the notes sued on, and had obtained from appellants a receipt in full of said notes, and they plead in reconvention for damages, $20,000.
    Plaintiffs amend their petition, and replying to the plea of defendants allege that they did compromise with defendants on the day mentioned in said plea, at thirty cents on the dollar, and gave defendants a receipt in full for the debt, and an order for the notes, but that they were induced to’do so by false and fraudulent representations of defendants at the time the settlement was made, and which they found out after the settlement; and allege in said amendment the details of the settlement and of the fraud practiced upon them by appellees.
    The appellees’ motion to quash the attachment and their demurrer being overruled, the parties went to trial on the issue made by the pleading, and the verdict and judgment were for the appellees. Plaintiffs appeal and assign as error, verdict contrary to evidence, and that court erred in not granting a new trial on their motion for one.
   Opinion.— It is clear that the verdict of the jury is not contrary to the evidence, if the statements of the witnesses are to be credited, and besides, to entitle the plaintiffs to avoid their agreement of compromise at thirty cents on the dollar, it was necessary to show that their agent should have relied on the truth of the defendants’ representations concerning the facts on which the compromise was based, and that his action in accepting the offer of thirty cents was induced by such reliance, and the credibility of said agent’s testimony on the whole subject was the proper subject of the jury’s consideration, and we are unable to say, if they did not believe his evidence, that the verdict is wrong. It is not sufficient that the judgment does not clearly appear to be right; it must clearly appear to be wrong to authorize the appellate court to set it aside. 51 Tex., 289; 1 Tex., 340; 8 Tex., 331. In cases of disputed facts, and particularly where the issue is one of alleged fraud, the judgment will not be disturbed unless for some manifest error of law. Mathis v. Oberthier, 50 Tex., 330.

The court has repeatedly held that a judgment will not be interfered with on appeal unless the court is able to say that the evidence does not support it. Jordan v. Brophy, 41 Tex., 284; Bailey v. White, 13 Tex., 118; Gilliard v. Chessney, 13 Tex., 337; McFarland v. Hall, 17 Tex., 690. Where there is evidence sufficient to support the verdict, a new trial, in case of conflicting testimony, will not be granted. Russell v. Mason, 8 Tex., 226, and Davidson v. Edgar, 5 Tex., 492.

The supreme court will not grant a new trial mereH because the weight of evidence preponderates against the verdict. Mitchell v. Matson, 7 Tex., 3. That the evidence is not satisfactory to the court is not sufficient, but it must clearly appear that it is wrong to authorize a reversal on that ground. Wells v. Barnett, 7 Tex., 584; Long v. Steiger, 8 Tex., 460; Briscoe v. Bronaugh, 1 Tex., 326; Gamage v. Trawick, 19 Tex., 64. See, also, George v. Lemon, 19 Tex., 152; Cummins v. Rice, 19 Tex., 226. When a question of fact has been fairly submitted to a jury on conflicting evidence, the supreme court will not disturb a judgment rendered in accordance with the verdict, although the evidence would have warranted a verdict on either side. Montgomery v. Culton, 23 Tex., 156. Also, Anderson v. Anderson, 23 Tex., 639.

A careful consideration of all the evidence in the case refutes the assumption of the appellants’ first assignment of error, and which is urged in brief of their counsel, to the effect that the evidence adduced by the plaintiff does not materially conflict with the defendants’ evidence in respect to the question of alleged fraudulent representation. Judgment is affirmed.


text:
    A. E. Morris v. L. M. Montgomery et al.
    (No. 3426.)
    Lien, mechanic’s — Pleading.— Where there are no pleadings to support the judgment it will he reversed, although there is no statement of facts or bills of exception. „
    Same.— Mere knowledge and acquiescence are not sufficient to bind the estate of a stranger for the debts of another for material furnished to build a house upon his (stranger’s) land.
    Appeal from Washington county. Opinion by Walker, J.
    Statement.—William J. and Thomas A. Montgomery brought suit on the 27th of June, 1876, against A. E. Morris on a note for §248, payable to the plaintiffs, made by the defendant, dated February 26, 1875, due on the 1st day of ¡November, 1875, which note recited on its face that the consideration was a bill for lumber purchased of plaintiffs’ a-gent to build a house occupied by him as a homestead.
    Petition prayed for a judgment for the amount of the note and to foreclose their alleged builder’s lien upon thirty-one and sixty-nine one-hundredths acres of land, including the house occupied as a homestead by the defendant. •
    The plaintiffs, by an amended petition, alleged that the legal title to the land was in L. W. Morris, and do not show what relation said Morris sustains to defendant, nor does the petition make L. W. Morris a party defendant, and allege that the note was given for a bill of lumber bought of the plaintiff and used in- constructing improvements on the land, with full knowledge and consent of said L. W. Morris. The petition alleged that the defendant purchased the lumber and used it in the construction of the house occupied by the defendant as a homestead.
    The petition alleged no other facts than these to create or to fix and secure a lien for material furnished under the statute which provides for such liens. The defendant filed a general demurrer and general denial. The cause being submitted to the court without a jury, the court rendered judgment for the plaintiffs for the amount of the note, and decreed the foreclosure of the lien claimed by the plaintiffs, with an order of sale and execution, from which judgment the defendant appealed, and assigns as grounds of error:
    1. That the court erred in rendering'judgment of fore- . closure of the lien claimed by the plaintiffs on the premises described in the petition, upon the evidence and case made out by the pleadings.
    2. That the judgment of foreclosure is contrary to law and the evidence.
    3. That the court erred in holding that the plaintiffs had a lien on the premises described in their petition, and in giving judgment of foreclosure therefor on the evidence in the case.
    That which purports in the record to be a statement of facts is not signed by counsel for either of the parties nor the judge who presided. On the margin is indorsed, “Approved January 22,1877,” which is not signed by any one.
   Opinion.— There being no statement of facts in the record, the presumption is that the evidence was sufficient to warrant the judgment (see 2 Tex., 292, 447; 5 Tex., 512; 1 Tex., 93, 192); and in the absence of a statement of facts, everything will be presumed to have been proved by the successful party which could have legally been proved under the issues to entitle him to recover. Peel v. Schofield. The plaintiff’s petition, as amended, in terms excludes the idea of defendant’s right to the property in question, for it alleged that it belonged to L. W. Morris, and no authority is alleged to have been given by the owner' to the defendant to bind the house and land, or either of them, by a contract which should create a builder’s lien upon them.

If L. W. Morris was the wife of defendant (which, however, is not alleged), the property being her separate property, her rights will not be affected by her husband’s contract. See Warren v. Smith, 44 Tex., 247; McGee v. White, 23 Tex., 180. Neither would the alleged knowledge and acquiescence of the wife bind her separate estate. Thomas v. Williams, 50 Tex., 270; Parke v. Willard, 1 Tex., 350. If there was no relationship as between L. W. Morris and defendant, said Morris being a stranger and exclusive owner of the property in question, and there being no other privity between him and the parties contracting for the lumber than his mere knowledge and acquiescence in the sale of lumber, you cannot charge him with liability, nor subject his estate to a lien for the payment of the debt of another.

Upon the record, as presented, there could have been no evidence before the court to warrant the judgment.

Reveesed and eemanded.


text:
    Jesse R. Bond and wife v. A. A. Ellison et al.
    (No. 3213.)
    Exemption from forced sale; hotel furniture not exempt.
    Appeal from Caldwell county. Opinion by Delaney, J,
    Statement.— This suit was brought by appellants, Jesse R. Bond and Elizabeth, his wife, against appellees, A. A. Ellison, sheriff, S. A. Bruce, his deputy,- and A. Lichen-stein, to recover damages for an alleged wrongful levy and sale by the sheriff, under an execution in favor of Lichen-stein, of certain household and kitchen furniture belonging to plaintiffs. The petition was filed August 12, 1875. laying the damages at $1,000. Bond was keeping a hotel in Luling with wife and one child. Lichenstein recovered a judgment against him in justice’s court for $110.33, and upon affidavit made by Lichenstein, execution was issued before the expiration.of ten days from the date of the judgment. Execution was immediately levied upon the furniture in the hotel, consisting of bedding and beds, tables and table furniture, cooking stoves, etc.
    Property was worth $100, though plaintiff said in his testimony it was worth $500. It brought at sheriff’s sale §67.05. Hotel building was separate from the private dwelling of the family, but connected with it by a platform. Ho furniture was taken from the private apartments of the family, and the officers left for them all such articles as were pointed out by Bond, for the use of the family. On January 6,1875, plaintiffs amended, alleging that the household and kitchen furniture levied on and sold was not over the value of §500, was exempt from execution, and was necessary for the use of the family. September 5, 1875, defendants answered by demurrer and set up that property was liable, and that plaintiff was about to remove the property out of the county. Trial was had January 6, 1876. Verdict and judgment for defendants; and motion for new trial being overruled, plaintiffs appealed. The assignments of error are so vague that we will not notice them.
   Opinion.— Counsel for appellants, in his brief, construed the charge of the court as instructing the jury that to exempt household and kitchen furniture from execution it must be used as such at the time of the levy. I am not certain that I understand the exact meaning of this part of the charge, and counsel in their briefs have thrown no light upon it.

We construe the statute (Pasch. Dig., 6834) as exempting from forced sale the household and kitchen furniture of a family, used by them as a family, and that it does not protect the furniture of a hotel which is used for the accommodation of guests and boarders.

From the evidence it appears that the family did not live in the hotel, and-none of the furniture which was used by the family was touched by the officer. Doubtless the furniture of a private family would not be rendered subject to execution by the fact that boarders were received into the family, but our opinion is that the furniture kept in hotels is not exempted from forced sale by reason of the fact that the hotel-keeper is the head of a family. We think, therefore, that the judgment should be affirmed.

Affirmed.


text:
    Munzenberger v. Boehme.
    (No. 1163.)
    Homestead.— Constituent of family; son not considered as the head of a family.
    Appeal from Comal county. Opinion by Watts, J.
    Statement.— Mrs. Boehme, the appellee (who was the administrator of her son, Victor Boehme, deceased), brought this suit against the appellants, July, 1876, for the purpose of establishing her right to lot No. 91, in New Braunsfels, which she claims was purchased by her son Victor with her money, who had taken the deed in his name. Also claiming the same as her homestead on the ground that she was a surviving constituent of Victor’s family at his death. The appellants, who were creditors of Victor’s estate, claimed the lot as assets of the estate; Mrs. Strempel claiming the first lien upon the same under deed of trust; Mrs. Schadwiz claiming the second lien under deed of trust. Mrs. Strempel’s claim, had been allowed and approved by the clerk, and she had filed an application praying for an order directing said lot to be sold, and proceeds to be applied to the payment of her claim.
    To this Mrs. Boehme filed her opposition, asserting that this claim had been approved by mistake and through inadvertence. This application and opposition was consolidated with the other suit. The lot was conveyed by Gabriel Sachern to Victor Boehme November 22, 1870. He was a single man, and with his mother and widowed sister moved upon the lot about January 1, 1873, and continued to occupy it until his death in March, 1875. As early as November, 1872, they had sent down from Victor’s place in the upper portion of the county, where they had been living together for some years, some household and other goods, and stored them in the house on the lot; the house was then undergoing repairs. Victor executed to George Pfeuffer, as trustee, his trust deed upon the lot to secure Mrs. Strempel in the sum of $2,000, December 5, 1872; the other deeds of trust in 1874.
    September 21, 1876, the case was tried without a jury, and a judgment was rendered in favor of Mrs. Boehme, adjudging the lot to be her homestead and not subject to administration; that the claim of Mrs. Schadwiz stood approved as a simple claim without lien; vacating the approval of Mrs! Strempel’s claim so far as it fixed a lien upon the homestead as claimed by Mrs. Boehme, but approving the same in all other respects; vesting the legal title in lot number 91 in Mrs. Boehme. Prom .that judgment this appeal was taken.
   Opinion.— The late decisions of this court have had a tendency not to give too extended a scope to the term “ family.” See Whithed v. Nickelson, 48 Tex., 517; Howard v. Marshall, id., 471; Roco v. Green, 50 Tex., 483; Horn v. Arnold, 52 Tex., 161; Andrews v. Hagadon, 54 Tex., 577.

By the statute in force at the death of Victor Boehme it was provided: “ The property reserved from forced sale by’ the constitution and laws, of this state, or its value if there be no such property, does not form any part of the estate of a deceased person where a constituent- of the family survives.” P. D., art. 5487. The question here for determina: ti on is, Was there such a constituent of the family surviv- ' ing him as could take exempted property upon his death to the exclusion of his creditors under the provisions of the Bevised Statutes of August 15,1870, section 26? It is contended that under the circumstances the mother constituted a constituent of his family within the true sense and meaning of the statute, and would take exempted property of deceased under same. While love for parent and filial duty might impose an obligation to support the mother, still there exists no legal duty iipon his part. Appellee claims the lot in controversy was her property, purchased for her and paid for with her money. Appellants reply that they loaned their money to Victor Boehme upon the faith of his being the owner of the lot, and took their deeds of trust in good faith without any notice of the rights of Mrs. Boehme. The fact that Victor and .his mother and sister, occupied the lot together was not notice of any right or claim of Mrs. Boehme to the same. The testimony shows that at the time the appellants advanced their money and took their deeds of trust they had no notice whatever that Mrs. Boehme had any claim or interest in the lot. Victor Boehme' was riot inhibited by the constitution and laws of the state from incumbering the lot by deeds of trust, notwithstanding he occupied it as a homestead, and appellants, without notice, would occupy the position of bona, fide purchasers for value.

Reversed and remanded.


text:
    J. M. Wilson v. S. J. Galbraith et al.
    (No. 3421.)
    Attachment.;—Writ issued to county not named in petition may not be fatal if the allegations show property in that county subject to attachment.
    Principal and agent.— Agent’s deposit of principal’s funds; application of such deposits made by depositee.
    Appeal from Fannin county. Opinion by Delaney, J.
    Statement.— The original petition in this case -was filed June 7, 1872, by appellant, against appellee, Galbraith, alleging that defendant, as plaintiff’s agent, had sold for him a tract of one thousand one hundred and seven acres of land in Fannin county for about $6,000; that he had collected a large amount of money and appropriated it to his own use, except the sum of $100, gold, which had been received by plaintiff, and prays for a judgment against him for $2,174.81, the amount collected and used by defendant, and for $3,000 as exemplary damages.
    On September 6, 1872, defendant answered by a general demurrer and general denial. October 19, 1872, plaintiff amended, alleging that since the institution of this suit he had learned that defendant Galbraith had, for the purpose of hindering and defrauding petitioner, assigned to one John B. Abernathy a large number of claims which he held against other parties, and had, on the 1st day of April, 1871, conveyed to said Abernathy certain tracts of land lying in Den-ton and Ellis counties; that these conveyances, though, ostensibly made for a valuable consideration, were in fact without consideration, and were made for the purpose of defrauding plaintiff, and that the equitable title is still in Galbraith; that there are numerous judgments against said Galbraith, rendered in Fannin county, rendered by courts of record in said county before the 1st day of April, 1872, which are a lien upon his lands in that county; and that his property in said county of Fannin is not sufficient to pay said debts.
    Prayer for process against Abernathy; prayer also for attachment against Galbraith, to be directed to the sheriff of Fannin county, directing him to attach said lands and other property of Galbraith, etc. Bond and affidavit for attachment made in Guadalupe county (plaintiff being a citizen of that county), dated July 8, 1872, and filed same day as petition; same day attachments issue to Ellis and Denton counties, which are returned, levied on lands of Galbraith. October 6, 1873, attachments were, on motion of Galbraith, quashed, and plaintiff excepted. June 23, 1874, plaintiff again amended, making David Bhine, of Fannin, a party. September, 1874, Bhine answered general demurrer and general denial and the statute of limitations of two years. September 26, 1876, Galbraith put in a plea that he had filed his petition in bankruptcy in the United States bankruptcy court, and the attached lands were returned by him in his schedule of assets, but he had not yet been discharged. Trial was had by the court September 28, 1876; judgment rendered for plaintiff against Galbraith for §1,759.23, gold, with eight per cent, interest and costs, but as against Rhine plaintiff takes nothing. Plaintiff appealed, assigning for error the quashing of the attachment and the judgment in favor of Rhine. The affidavit was made and bond executed on the 8th of July, and the attachment was not issued until the 19th of the following October.
   Opinion.— The attachment being issued nearly fifteen months after the affidavit was made and bond given, we conclude there was no error in quashing the attachment.

The second assignment is that the court erred in rendering judgment in favor of Rhine.

Defendant Rhine pleads the statute of limitations. Plaintiff, to avoid the bar, alleges fraudulent concealment. The money was deposited with Rhine in 1871, and appropriated by him in December of that year. Suit was brought against G-albraith June 7, 1872. The amended petition making Rhine a party was filed June 23, 1874. We find in the record no evidence of fraudulent concealment on the part of Rhine. On the contrary, it appears from the evidence that plaintiff’s counsel knew "as much about Rhine’s connection with the case when he filed his original petition as when he filed his last amendment making him a party.

Finding no error in the judgment, our opinion is that the judgment should be affirmed.

Affirmed.


text:
    E. B. Smyth et al. v. W. G. Veal.
    (No. 3766.)
    Title — Land certificate.— A purchaser of a land certificate without notice would take good title.
    Appeal from Limestone county. Opinion by Delaney, J.
    Statement.— Appellants, E. B. Smith, J. W. Townsend, Joe H. McCain and Elizabeth Wood, plaintiffs below, brought this suit in the district court of Limestone county, on- October 5, 1875. and on the 7th- day of March, 1878, tiled their “ amended original petition,” which, under rule 14 of the district. court, supersedes the original petition, against W. G-. Veal, appellee, for the possession of the head-right certificate, 27o. 155, of one-third of a league of land, issued to William Anglin by the board of land commissioners for "Robertson county, Texas, on 3d of May, 1838, and to have a fraudulent transfer to said certificate made .by said William Anglin to appellee, Veal,on June 19,1871, declared to be null and void and of no effect; and setting out in said “amended original petition” that said William Anglin had said certificate located upon a certain tract of land lying in' Limestone county, Texas, giving the field-notes of said land.
    That the proper returns of said location were made to the general land office of the state of Texas, and filed therein. That after said location, as aforesaid, and on the 27th of September, 1845, said William Anglin conveyed one thousand and eighty-eight acres of. said land to Samuel Andrews, and on June 3, 1851, conveyed the balance of said land, three hundred and ninety-eight and two-thirds acres, to Abram Anglin, reciting in each of said conveyances that the said tracts of one thousand and eighty-eight acres and three hundred and ninety-eight and two-thirds acres were parts of the said William Anglin’s head-right of one-third of a league. That plaintiffs are, and were at and before the institution of this suit, the owners of said land and said certificate, by virtue of regular and valid conveyances thereto, and that said Veal had full notice, both actual and constructive, that they were the owners thereof, at and before June 19,1871. Appellee, defendant below, filed an amended original answer of: 1st, a general denial; 2d, special denial that the transaction was tainted with fraud in any manner whatever, and the statute of limitations of two years.
    Plaintiffs, by way of replication, amended their original petition: 1st. General denial. 3d. That said defendant did not obtain possession of said certificate until January 15, 1872, and then obtained it from the general land office where plaintiffs had filed it. Plaintiffs prayed that defendant be required to deliver transfer of certificate in open court, and that it be decreed null and void. Judgment for value thereof, costs and general relief. Verdict for defendant March 9, 1878. Motion for new trial overruled, and plaintiffs appeal.
    Plaintiffs proved the following facts: 1st. Issuance of the certificate to William Anglin May 3, 1838, location on the land described in their petition on June 10, 1839, and proper returns to general land office as alleged by him. 2d. That said William Anglin on September 27, 1815, sold to Samuel Andrews by warranty deed one thousand and eighty-eight acres, describing same by metes and bounds, and to be taken from south part of William Anglin’s one-third league. 3d. And on June 3, 1851, said William Anglin sold by warranty deed to Abram Anglin the balance of the one-third league, three hundred and ninety-eight and two-thirds acres. See Kent, p. 517, 9th ed. They also proved that the chain of title was properly recorded before defendant bought certificate. Defendant also proved that after the location of said certificate by Anglin on the land it was in conflict in toto with an older and a xmlid location, and that in consequence thereof no patent xvas issued to Anglin or his assignees, and the said certificate had no file mark on it until relocated in Wichita county. Defendant also proved that after the location of said certificate by Anglin on the land described in plaintiff’s petition, and after Anglin had conveyed the land to Andrews and Abram Anglin, he made a compromise xvith Chas. A. Jacobs and William Christy (who, plaintiffs admitted, were the owners of said older grant), and accepted a conxreyance from them to said land. And plaintiffs admitted that said conveyance to Anglin from Jacobs and Christy vested the title of said older grant to said land in Anglin.
   Opinion.— The plaintiffs in this suit are the present holders and owners of the land under title described as above set forth, and all duly recorded in Limestone county. But in 1871 Win. Anglin, the original grantor of the certificate, sold it to the defendant, who located it upon lands in Wichita county. How plaintiffs claim they are the owners, not only of the land in Limestone county, but also of the certificate; and that, as the owners of the certificate, they are entitled to the land in Wichita county upon which it has been located by defendant. Plaintiffs urge this proposition : “ When the owner of a land certificate has it located upon land and sells the land so located, referring to the land so sold as located under such certificate, he thereby parts with his title to the certificate and cannot afterwards abandon such location, or sell the certificate in prejudice of the rights of his former vendee; ” and refer to Paschal’s Digest, articles 4301, 4302. Johns v. Pace, 26 Tex., 270; Smith v. Tucker, 25 Tex., 594; Baggett v. McKenzie, 28 Tex., 581.

A majority of the commissioners hold that when Anglin, for the benefit of his vendees, bought in the superior title, he was discharged from all the obligations of his contract, and might dispose of the certificate as he chose. Also the legal title to the certificate was in Anglin ivhen he sold to appellee. There is no evidence in the record that appellee had any knowledge of the claim of appellants. If the plaintiffs or their vendors had desired to give notice of their claim to their certificate they should have filed it in the land office. Baggett v. McKenzie, 28 Tex., 581. A purchaser of the certificate from Anglin without notice would take good title. Law v. Berry, 22 Tex., 372.

Affibmed.


text:
    W. G. Randall v. J. W. Smith.
    (No. 4020.)
    Surety.— Sureties on the bond of a building contractor are discharged if there is an alteration in the contract or specifications, without their consent.
    CHARGE.— It is error by the charge to leave it to the jury in such a case to say what does or does not constitute a material change.
    Appeal from Dallas county. Opinion by Watts, J.
    Statement.— One of the contested issues in the case as presented in the court below was as to whether or not there bad been such alteration or change in the original contract made by appellee and J. A. Leonard as would release appellant, who was surety on the bond upon which this suit is based, and upon that issue the court charged the jury as follows; “ If you believe from the evidence that after the execution of said contract and said agreement to said specifications, plaintiff and said J. A. Leonard made a material alteration in said contract or specifications without the consent of said W. G. Randall, then you will find for defendant Randall.” This charge was excepted to by appellant, and he asked the court to further charge upon that issue as follows: “ 1st. A surety is only bound by the terms of the contract which he executes, and if after the execution of the contract a material change or variation is made in the contract between the principal parties to the same, without the consent of the surety, this releases the surety from his obligation. 2d. By material change ór variation as above used is meant any change enlarging or changing the time of the performance of the contract or manner of performing it, or in the material used in performing it.”
    These charges were refused by the court, and the refusal was excepted to and assigned as error by the appellant.
   Opinion.— The objection to the charge quoted above and given by the court is because the court therein left it to the jury to determine unaided by any explanation as to what did or did not constitute a material change. See Albright v. Corly, 40 Tex., 112. Here the appellant sought to correct the error. by additional charges upon the same issue, which were refused by the court; and while it may be admitted that the charges asked and refused are not literally correct in the exposition of the law applicable to the issue, still they were sufficient to'call the court’s attention t.o the omission in the charge, and require its correction.. If, as claimed, there was such change made in the original plans and specifications by appellee and Leonard, without the consent of appellant, which would in its nature require a greater length of time to complete the buildings than it would require to have completed them under the original plans and specifications, and Leonard adopted and worked upon the plans and specifications-so changed and altered by him and appellee, then under the circumstances of this case appellant would have been discharged from further liability upon the bond. See Lane, Saylor & Robinson v. Scott & Culver, 57 Tex., 367.

The increased value of the material to be used, and the consequent increase in the value of the buildings on the one hand, the increased labor and expense, and consequent injury upon the other, is a sufficient consideration to sustain an agreement, such as is asserted by appellant in the answer, changing the original contract. See Bason v. Hughart, 2 Tex., 476.

Reversed and remanded.


text:
    Parker County v. J. R. Courts & Co.
    (No. 3606.)
    County scrip.— Want of seal does not invalidate same; registration no bar to defense of invalidity. Purchasers take risk of genuineness of signature and also of official character of him .who issues same.
    Appeal from Parker county. Opinion by Walker, J.
    Statement.— The appellant’s first ground of assigned error is that “the court erred in sustaining appellees’ démurrer to appellant’s -special plea, denying the validity of the purported obligations sued upon, because the same were not sealed with the seal of the county court, pursuant to the act of August 13, 1870, and charging that the same were void ab initio, and in striking out said plea.” The purport of the special plea referred to above is, in effect, that county paper or scrip sued on by the plaintiff required, in order to give' them any validity, the affixing officially to them, by the county clerk issuing them, the seal of the county court of Parker county; that said instruments were issued without it, and were * co n seq u ent ly void. The plea alleged further that the registration of them, if made as alleged, was as against the county fraudulent, and that it could not create any obligation against it.
   Opinion.— The act of August 13, 1870, did not alter in any respect the law as it had before existed, so far as it related to the jurisdiction of the county courts over the settlement of county accounts, or as to the manner in which their payment should be made. The act of 1848, and that of 1870, both used the following language, viz.: “The said courts shall have power to lay off and divide their respective counties into convenient precincts for the election of justices of the peace; . . . to allow and settle all county accounts and direct their payment in such manner and at such times as may meet the public interest.” See § 33, Acts of 12thLeg. (1870), p. 108; Pasch.Dig., arts. 6111,1229. Each of said acts provides specially that the county court maj7 issue writs and process through the clerk of the court, and that the seal of the court shall be affixed to all such writs,. but in express terms dispenses with the necessity of the seal as to writs of subpoena.

The scrip which is sued on is neither a writ nor process, but it is county indebtedness; and the account which is merged in it belongs to that class of county accounts which the statute contemplates the county court shall have power to settle and to direct the payment of in such manner as may meet the public interest.” See arts. 3388, 3395, P. D.

The defense set up in the plea under consideration is that the want of the seal of the county court on the instruments sued on rendered them invalid, and that their invalidity was not cured by the due registration of them. We are of a different opinion. We think, however, that such claims should be duly certified under the seal of said court, in order to assure the treasurer of their genuineness. The mere irregularity in form would not necessarily avoid the instruments if they were otherwise valid.

As has been stated, the statute not only does not prescribe a rule for the manner in which the county court shall pay county claims, but it confers a discretion on it on that subject which is limited only by what it deems to be “the public interest.” See Code of Grim. Proc., art. 3395, P. D, In this case the draft was signed by the clerk and not by the presiding justice. We do not find any authority given to the clerk to issue instruments of this character. However, that point is not raised by the assignments of error. Where duly appointed officers 'or agents, acting within the scope of their authority, execute an instrument on behalf of a corporation, signing their own names and affixing their own seals, such seals are merely nugatory, and the instrument is to be regarded as a simple contract, and, if otherwise valid, binding on the corporation as such. Regents v. Detroit Young Men’s Society, 12 Mich., 138; Blanchard v. Blackstone, 102 Mass., 343; Burrell v. Boston, 2 Cliff. C. C., 590; Heidelberg School District v. Horst, 62 Penn. St., 301.

Counties, although they are constituted by law public corporations, áre integral political divisions of the state government, created by law with corporate endowments, as well as for local interests of the counties, and are regulated and governed by the laws of the state enacted from time to time by the legislature. It is apparent, therefore, that they do not act subject to the conditions in such public corporations,— often require them to contract and perform many of the functions through a common corporate seal. Counties do not exercise their corporate rights and duties exclusively through a single tribunal, nor are they exercised through a common seal of their public political corporations; but they perform, them under the general laws of the state, administered through such courts, commissioners, statutory tribunals of various kinds, agents, officers, committees and other agencies, each independent, but acting in concert with the other.

If the action of the county court was authorized by the statute it is not material to inquire whether the act in question was under,a corporate or other seal, or whether it was evidenced by writing or was merely verbal.

Appellant’s second assignment of error is that ee the court erred in sustaining appellees’ general demurrer to appellant’s plea of non est factum^ denying the* execution of said scrip in toto by the county or any of her legally authorized agents, and alleging that the same did not purport to be sealed and delivered as the legal act of said county; and that it was a forgery against said county, and in striking out the same upon demurrer, and denying appellant a new trial upon the issues raised.” The plea was held insufficient by the court on demurrer, and as it fully met all the requirements of a plea of non est factum., so far as former allegations are concerned, the demurrer to it was ■evidently sustained upon the ground that the imputed forgery did not constitute an answer to the petition, which alleged that the claims sued on were duly registered under the act of May 1, 1874 (14th Leg., 189), providing for the registration of county claims. The plaintiffs alleged in their petition the due registration of the drafts on 21st of July, 1874, by the then holder of them, and that they afterwards, on the 24th of September, 1874, became owners by purchase and for a valuable consideration paid. It is urged by the appellees’ counsel that the registration was . in legal effect an adoption and approval of the claims by the county, and that the defendant is concluded by the ac.tion of the county court from questioning their validity in the hands of an innocent purchaser for value. We do not think that a county, by registering its indebtedness and by the approval of the claims thus registered by the county court, is estopped from setting up a defense that a claim thus registered is void. See Burroughs on Securities, pp. 632, 638, 639.

Purchasers of municipal securities must always take the risk of the genuineness of the official signature of those who execute the paper they bu)”-. This includes not only the genuineness of the signature itself, but the official character of him who makes it.

These rules clearly allow the right of the county of Parker to show the invalidity of the draft sued on, by permitting it .to establish the facts set forth in the plea of non est factum, notwithstanding the drafts were originally issued and subsequently duly registered and approved by the county court, and that the holders of them are innocent purchasers for value.

Reversed and remanded.


text:
    S. A. Cooke v. J. R. Washington et al.
    (No. 3040.)
    Practice.— Assignment of errors; charge of the court; presumption in favor of court below.
    Appeal from Collin county. Opinion by Watts, J.
    Statement.— On ¡November 9, 1882, Cooke filed his petition in trespass to try title against the appellees in the district court of Cooke county, claiming under grant made to Marcelline Lazarine, dated March 26,1834. The defendant claimed under the republic and state of Texas by patents issued at different times. The case was removed by change of venue to Collin county. The real contest was as to the true location and identification of the Lazarine league, and whether or not it included the patented lands claimed by appellees. The case was tried September 11, 1875, and verdict was returned and judgment rendered for appellees. Appellant brings the case before the court on an assignment of errors copied into the opinion. The material facts will also be found in the opinion.
   Opinion.— The following with other errors are relied upon by appellant for a reversal of the judgment: 1. The court erred in overruling the motion for a new trial. Points 2, 3, 4 and 6 refer to giving and refusing charges to the jury. 5. In refusing to admit testimony of Aldrich and also certified copy of deed from C. E„ Allen to M. E. Converse, and certified copy of deed from B. & S. Allen to A. G. Allen. 7. Admitting patents offered by defendants. 8. In admitting the certified copies of deeds offered by defendants.

In considering the questions presented by this appeal the first error assigned will be reserved, and appellees claim that the second assignment of error is so indefinite that the errors sought to be presented by it must be considered as waived. This appeal was perfected before the adoption of the new rules, and the question thus raised must be determined by decisions construing the statute then in force. This assignment is in effect that the court erred in fourteen charges given to the jury. As to what particular rule of law has been infringed by the court in any or all of these charges is in no way indicated by the assignment.

These several charges, however, have been examined in connection with all the other charges given, and there is no such error shown as readily attracts the attention of the court. But on the contrary, construing all the instructions given by the court together, and we think that by them the law applicable to the case made by the evidence is clearly given.

It is claimed that the court erred in refusing to give the charge asked for by appellant when the jury returned into court and asked fpr an explanation of charges, and also in the charge given by the court at that time. As shown by the bill of exceptions, the jury returned into court and asked for additional instructions, whereupon the appellant asked the court-to give the following instruction, viz.: “ That in this cause absolute certainty as to the location of the grant'or its' lines and. corners is not required, but that they must be governed by the preponderance of the testimony.” This charge was refused, and the record shows that the court did give the jury at the time an instruction which is not in the record. The proposition that, as the court refused the above charge, which is claimed to be correct in law, We must presume that the charge that the. court did give Avas erroneous, cannot be maintained. When there is nothing in the record to the contrary, the presumption will be indulged that the court charged the law. Under no state of the case Avill the presumption arise that the court failed to do its duty or committed an error. It is also urged that the court erred in excluding a certified copy of the evidence of Geo. Aldrich, who was dead. This evidence Avas 'taken in an ex parte proceeding to which the appellees Avere not parties and had no opportunity of cross-examination, and was no more admissible in evidence in this’ case than would have been the naked affidavit of the Avitness made before some officer authorized to administer oaths.

The deed from O. E. Allen to IT. E. Converse did not describe the land in controversy, and was therefore properly excluded. There remains but one other question relied upon, and that is the verdict is not supported by but is against the evidence.

Throughout, the evidence is conflicting and doubtful. The verdict of the jury determined the credibility of the witnesses in favor of appellees, and upon their evidence based their finding; and a careful examination of the record fails to show that the verdict is not sustained by the evidence. We conclude the judgment ought to be affirmed.


text:
    John Conner v. John and Eliza Holland.
    (No. 2198.)
    Husband and wife.—Buie of evidence.
    Appeal from Travis county. Opinion by Watts, J„
    Statement.— This case was decided by the supreme court in 1877. The judgment was then reversed because the court below excluded the evidence of the wife of appellant offered in his behalf. At the same term a rehearing ivas granted, and the case is now before the court for disposition.
   Opinion.'—• In the case of Gee v. Scott, 48 Tex., 510, it was held that the statute then in force removing the disabilities of parties as witnesses did not render the husband and wife competent as witnesses for or against each other. The ground for the exclusion of such evidence is not alone that of interest in the subject-matter of the litigation, but that public policy required its exclusion. - We conclude that there was no error in excluding the evidence of the wife of appellant offered in his behalf. Of course, since the adoption of the Revised Statutes the rule is otherwise. Appellant claims the verdict of the jury is against the evidence. In support of that assertion it is urged that the evidence as to the payment of the notes by appellant in 1862 is so conclusive as to authorize this court in holding that the judgment is clearly wrong. This assumption is predicated upon the hypothesis that there-is no evidence tending to repel that adduced by appellant as to his having paid the notes sued on to Bird Holland prior to his death. These notes were in the possession of Holland for more than two years after it is claimed that they had been paid. At his death they went into the possession of his executors and from thence to appellees.

The production of the notes and their introduction in evidence by the appellees, prima facie established appellant’s liability, and the burden was upon him to establisZa to the satisfaction of the jury the truth of his plea of payment.

From this it will be seen that the production of the notes by appellees entitled them to a verdict unless appellant established his defense of payment to the satisfaction of the jury by such evidence as they might deem credible and worthy of belief.

The circumstances developed by the evidence are not in harmony with the truth of the defense. It is claimed that payment was made in the spring of 1862, and was evidenced by a deed from Holland, then executed and delivered to appellant, and that a very short time thereafter, and before the deed could be proved up and recorded, it is claimed that this' deed, among other papers, was stolen from appellant and that he never thereafter recovered it. Holland lived two years after this time, but no effort was made to get another deed or other writing that these notes had been paid. Holland, and his executors since his death, have held the notes and exercised such rights of ownership totally inconsistent with' appellant’s claim of right to the land or possession of the notes. Again, his declaration to the executor that he intended to sue to recover the land because the notes were usurious does not harmonize with the subsequent assertion that he had long before paid the notes and secured a conveyance of the land. As to the objection to the introduction of the notes sued on in evidence, it is a sufficient answer that the executors were acting under an independent will, and as such assigned or transferred the notes to appellees. This assignment vested in the appellees the legal title to the notes and authorized suit thereon in their names.

Besides, appellant was not thereby deprived of making any valid defense he might have against the notes and which he could have asserted had they remained in the hands of the executors.

Judgment affirmed.