text:
    S. Heidenheimer et al. v. The City of Galveston et al.
    (March 13, 1880.)
    Municipal corporation.— Provisions of city charter as to mode of incurring liabilities and as to amount of indebtedness allowed; dedication, of property to public use.

      Appeal from Galveston county. Opinion by Quinan, J.
    Statement.— The grounds alleged of illegality in the action of the city council may be stated succinctly as follows: 1. That the city did not and does not own or possess the right of way on the streets mentioned in Dren nan and Sullivan’s petition, and has not accepted any deed of dedication to such streets. 2. That the work of filling up the ponds and low places was not done by or on account of the city. 3. That before the work was performed no estimate of the probable cost thereof was made by the city engineer or other officer; that no contract was made by the city and none of the prerequisites provided in such cases in the city charter and ordinances were complied with. 4. That the city owes more than $1,200,000, and by its charter it is provided that its debts shall not exceed $1,200,000. 5. That the city debt already exceeded the amount limited" by its charter.
   Opinion.— We will consider these propositions in the order stated, and in connection with them the fourteen. assignments of error and the several propositions made under them, so far as we deem it necessary to the proper disposition of the case. They involve the whole contention; and the determination of them, in our judgment, determines the controversy.

1st. As to what is alleged respecting the right of way. We do not think the proposition is supported by the facts or the law. The proof shows that the owners of the property united in making deeds of dedication to the city of the streets so far as they were extended; that they were opened according to the plots attached to the deeds under the superintendence of the city engineer, who laid them off, measured them, and approved the work. The city, by its committee on streets and alleys, inspected the work, accepted the deeds of dedication, and recommended the payment for the work done. The recommendation was adopted by the city council, “ who agreed to secure the streets by paying the cost of filling the same, and the council acted accordingly.”

It is urged that upon the trial there was no regular proof of the execution of the deeds mentioned; there is no proof of a valid dedication. But this is a mistake. The deeds were not essential to a valid dedication of the land. It may be established by parol. The act of throwing open the property to the public use without any other formality is sufficient to establish the fact of a dedication to the public. The deeds were in the custody of the city, described the extension of the streets, were properly acknowledged, were proven to be the deeds in which the property owners “ united and executed and delivered as a valid dedication of the land,” were produced by the city. If, in this suit, it could avail the plaintiff anything that there had been no valid dedication of the streets, in the position which they occupied, it devolved upon them to prove it. The city was in possession, satisfied of its right, and the plaintiffs do not show that there is any adverse claim. Oswold v. Grenet, 22 Tex., 101; Ayers v. Hewett, 19 Maine, 281; 2 Billon on Mun. Corp., 598; 1 Wharton, Ev., 689; Supples v. Lewis, 37 Conn., 568.

2. As to the second proposition, that thé work was not done by or on account of the city.

The proof is that it was done by order of the board of health, the owners of the property refusing to do it; that the health officer thereupon told the contractors to proceed with the work and look to the city. In this way the ponds were redeemed and the nuisance abated.” And the board of health were charged with the maintenance of the sanitary condition of the city, and by the charter had power to so order, at the expense of the city, though the owners of the property, it is true, might be compelled to reimburse the city for the expense, if there were otherwise no agreed compensation. Charter, secs. 117, 122.

The third proposition is, in substance, that none of the prerequisites of the charter were complied with, and therefore that the claim is not a legal claim which the city can pay.

As pertinent to this the appellants, under their fifth assignment, say: “ A municipal corporation can only act in the cases and in the mode prescribed by its charter; and for street improvements of a local nature, express contracts authorized by ordinance are necessary to create a liability.” This is the language of Judge Field in Argenti v. City of San Francisco, 16 Cal., 282, and may be received as sound law, but it has no application to the present case. That was a suit against the city, which denied its liability. In this case the city has recognized its obligation and proposes to pay it. And the act of the city council is not in violation of any rule prescribed by its charter. Section 128, of which the act of the city council is supposed to be a violation, has no application in the case. That section prescribes the rule to be observed by the city council whenever it shall determine to make the improvements mentioned in the previous section, under the power granted them. Id., sec. 127. The city council shall be invested with full power and authority, upon the consent of the resident owners of a majority of the frontage of property on the street to be improved, to grade, shell, repair, or otherwise improve any avenue, street, alley or any portion thereof, within the limits of the city, whenever, by a vote of two-thirds of the aider-men elected, they may deem such improvement for the public good, etc. And both these sections prescribe the preliminary steps to be taken and provide for the payment of the cost, one-third by the city and two-thirds by assessment upon the property fronting on the streets or thoroughfares to be improved. But these sections have no reference whatever to the work of extending streets. They apply only to the improvement, the grading and shelling of the street already opened and used. The power in the one case is given in the amplest way in section 34 of the charter, “to open, alter, widen, extend, establish, and regulate the same.” And we are referred to no section of the charter which prescribes any rule limiting or defining the manner in which they shall exercise this power. The power to open and extend the streets of the city implies, of necessity, the power to acquire the right of way and pay for it. So, also, as we have seen, the power conferred upon the board of health to abate nuisances and to have filled the ponds which might endanger the public health is given without limitation or restriction as to the manner in which it shall be exercised.

In the absence, then, of any rule prescribing any preliminary proceedings as necessary, or the previous making of any contract with parties for the acquisition of right of way, or the extension of the streets, or the abatement of the nuisance condemned by the board of health, inasmuch as the work ivas done with the assent of the city under the superintendence of its officers and by their direction, the dedication of the right of way accepted and enjoyed by-the city, and the streets opened, we concur with the common council in saying, “ the work having been done and the citizens benefited thereby, those who did the Avork should be compensated.” If a prior contract Avas necessary, the act of the city council in accepting thó dedication and approving the claim of Drennan and Sullivan, and ordering payment of it, supplied its place and was a satisfaction of Avhat had been done.

Under this same fifth assignment the appellant has stated another proposition: “ That the improvements in this case being local, and though, to some extent, of general benefit, yet the advantages resulting from them do not constitute that kind of advantage to the city from the existence of Avhich any liability to pay for the same can be inferred.”

It is sufficient answer to this proposition to say the abatement of the nuisance and the filling of the ponds, by order of the board of health, was not a local improvement. It eoncerned, in the most vital way, the whole city, and the extension of its streets was in the interest of all its people.

It is very evident that, although no special contract was made by the city by any ordinance in respect to these outlays, yet the labor was expended with the knowledge of the city council and its acquiescence, under the superintendence of its officers. They have received all the benefit to be derived from it and are in the full enjoyment of it; they have agreed to make compensation for it; they do not question its validity, and it would be unjust toward the defendant to permit this now to be done, and interpose to prevent the city from carrying out the settlement it has made. Argenti v. City of San Francisco, 16 Cal., 274.

The fourth proposition is that the city owes more than $1,200,000, and that by the charter it is provided that its debt shall not exceed that amount.

The language of section 132 is: “The indebtedness of said city for all purposes, general as well as special, shall not exceed twelve hundred thousand dollars for five years after the passage of this act, . . . and prescribes a penalty against any member of the city council who shall knowingly vote for, or in any manner aid or promote the passage of any ordinance, resolution or act increasing the city debt beyond that amount.” The penalty is that he thereby vacates his office and “ be punished to the extent provided in section 30 of this act.” Section 30 provides for removal from office. If, however, section 31 was intended, the penalty would be any sum not exceeding $5,000 and imprisonment not exceeding six months.

Provisions of like character are now frequently inserted in city charters, and their proper construction has undergone some discussion, but the decisions upon them have been by no means uniform. In McCracken v. City of San Francisco, it was held by Chief Justice Field that the provision was merely directory, while in other cases it has been looked upon as a definite restriction of power. Cumberland v. McGunlan, 34 Md., 381; 1 Dillon, 207.

But it is unnecessary to discuss this question or intimate any opinion upon the subject. Whether the city debt of Galveston exceeded the amount of §1,200,000 was a question of fact to be ascertained by the jury. It was submitted to them by the judge with instructions, if they so found, to find for the plaintiffs. By their verdict they have, in effect, said that the valid debt did not exceed the amount prohibited by law. It was incumbent on the plaintiffs to establish the facts clearly and conclusively to the satisfaction of the jury, and in this they failed. Taking into consideration the inherent difficulty of ascertaining the exact debt of the city, depending upon a settlement of its accounts with all its creditors, involving, perhaps, the adjustment of offsets, counter-claims, and unliquidated and disputed demands generally, and the presumption arising from the fact that the city council, acting under oath and the penalties of the law, and with their better means of information, approved the payment of this debt by a vote of eight to three, we are not prepared to say that the verdict is without evidence to support it. Certainly we cannot undertake to determine, from the information afforded by the record, that the city council erroneously computed the valid debt of the city, and that the error was made clearly to appear.

The motion for a new trial, we think, was properly overruled. So far as objection is made to the verdict because the deeds of dedication were insufficiently proven, we have already intimated an opinion that the introduction of them was not necessary, and if error was committed the error is immaterial. But for the purpose, and under the circumstances in which they were offered, in connection with other facts, we do not think they required further proof. 1 Wharton on Evidence, § 689.

We are of opinion that there is no error in the judgment and that it be affirmed.


source: Caselaw Access Project

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text:
    The Texas Mutual Life Ins. Co. v. R. A. Brown & Co. and Geo. T. Bordies, Administrator.
    (March 26, 1880.)
    Competency of jurors.— It was error in the court to refuse to allow defendant’s counsel to ask each of the jurors the question: “ Do you believe that, if a person commit suicide, it is conclusive evidence that he was insane at the time of committing the act.”
    Impaneling jury.— The defendant is not entitled to have the list of the jurors remaining after the striking by plaintiff called before he passes upon the jury.
    Oral evidence.—When a written assignment is lost and that fact shown, its contents may he shown by oral testimony. That question could not be properly raised by defendant.
    Proof of death of insured.— The record of the coroner’s inquest was not admissible to establish the death of the insured.
    Insurance—Proof of loss.— A denial of liability, and refusal to pay on that ground, dispenses with the necessity of proof of loss. When the policy is payable ninety days after notice of death, and notice is given immediately after death, and there is a refusal to pay, suit may be brought at once. Suicide is no proof of insanity, prima facie or otherwise. It is error for the court to inferentially state that there was evidence of insanity.
    Appeal from Galveston county. Opinion by Quinan, J.
   The first error assigned is: The court erred in sustaining the objection of plaintiffs to defendant’s question pro. posed to each of the jurors: “Do you believe that, if a person commit suicide, it is conclusive evidence that he was insane at the time of committing the act?”

The act of 1876, regulating juries, in section 26 specifies several causes which shall be good causes of challenge, but it does not, by its terms, exclude the consideration of other causes than those enumerated. Among those named are, that the juror “ is biased or prejudiced in favor of or against either party.” To give this a literal construction, it would appear to mean a personal prejudice against or favor towards the parties as individuals; but in view of the controlling purpose of our laws, that the trial by jury shall be pure and impartial, we think that construction would be too narrow. A prejnclgment of his case, a conviction formed upon the subject of contention, must be quite as potent to deprive the party of the benefit' of a fair trial as a merely personal prejudice against him. We think the question should have been permitted. Pierce v. The State, 13 N. H., 536; Hiatt v. Mutual Life Ins. Co., 2 Dillon, 572.

The second assigned error is: The court erred in sustaining the objection of plaintiffs to defendant’s motion made after the plaintiff and intervenor had struck the names of jurors1 to whom they excepted and returned the list to the clerk, viz.: “ That the jurors should be called so as to show the names remaining after the striking by the plaintiff and intervenor,” so as to apprise defendant as to who were on the jury before defendant should be required to make his challenges. We do not think this well taken. The statute prescribes the form to be observed in impaneling thejury, and it seems to have been observed in this respect.

The third and fourth assignments may be considered together. They relate to the proof made of the assignment of the policy of insurance; of its delivery to B. A. Brown & Co. by Estelle. It is a sufficient reply to these objections that the question, whether there was a verbal assignment of the policy, was one which concerned chiefly the assignee and the administrator, Brown. The company were interested only “ that it might not be compelled to pay the assignee and the legal representatives of the insured.” All parties who could claim an interest in the policy were before the court, and its judgment would full\r protect the company against that possibility. Bliss on Ins., p. 551.

We think, however, that the proof offered of the assignment was in accordance with the rules of evidence in such cases. Andrews proved the loss and diligent search for what purported to be an assignment of the policy from Estelle to Brown, and a copy of that instrument. And Goodwin proved the execution, by Estelle, of the assignment, of which the Exhibit X, attached to his deposition, he ■swears is a copy. His language is: “I was present when the original assignment (of which Exhibit X is a copy) ivas executed, and saw William C. Estelle sign said paper as assignee, on the 13th day of October, 1874.” Greenleaf, § 558; Bateman v. Bateman, 16 Tex., 544. There can be no reasonable doubt of the existence, loss, contents and execution of the original assignment.

The sixth assignment of error is: The court erred in sustaining the objection of the plaintiff’s offer {defendant's offer as shown by bill of exception) to introduce the record of the inquisition by the coroner on the body of W. C. Estelle, deceased, as also defendant’s offer to introduce the testimony of G. W. Williams, a witness at the coroner’s inquest, and who had died before the trial of the cause, as shown by bill of exceptions Ho. 4. We are of opinion that there was no error in this ruling. It was incumbent upon the plaintiff to make proof of the death of Estelle, and the proof might be made without the introduction of the coroner’s inquest. The inquest, as offered to prove what a deceased witness testified before the coroner, was clearly inadmissible in this suit, as plaintiffs were not parties to that proceeding. Greenleaf, § 125.

The eighth error assigned is: That the court erred in instructing the jury that denial of liability by the insurers waives proof of loss. This is distinctly laid down in May on Insurance, page 573, citing 9 Howard, 390, and other cases; 30 Vermont, 659: “A distinct denial of liability and refusal to pay on the ground that there is no liability is a waiver of the condition requiring proof of the loss.”

The seventh assignment is: " That the court erred in charging the jury that the defendant was liable for the amount of the policy, with interest, less three quarterly payments, from ninety days after proof of death, when no denial of payment was made until the filing of the suit, etc. The proposition under this assignment is, that where a life policy contains a promise to pay “ in ninety days after due notice and satisfactory proof of death,” interest does not accrue until the date of legal demand.

Flint testified “ that he called upon Bichardson, the agent of the company, and that he refused to recognize either the policy or the assignment, and maintained that neither constituted anj7 claim against his company.” Andrews testified, “ the proof of death was made out and delivered to the defendant company, within a few days after Estelle’s death.” Bichardson testified: “I refused to recognize either the policy or assignment as constituting any ground of claim against this company. K. A. Brown & Co. informed me by letter that they held the policy by virtue of an assignment from Estelle, w'hich they found with the policy after his death, and that Estelle was indebted to them, etc.; the notice was sent to me the 19th of October.’’

This denial of liability on the part of the company was, as we have seen, a waiver of the condition requiring proof of loss. “ And, of course, the waiver of the proof is a waiver of the condition that payment is not to be made till a limited time after the proof, so that in such cases suit may be brought at once upon the denial of the liability, although the time within which, after the proof of loss, the payment would be demandable, may not have expired.” May on Insurance, sec. 574.

The eleventh error assigned is: The court erred in refusing to instruct the jury “that an assignment of a policy of insurance, to be a valid one, must be made in the lifetime of the assured, and it must be accepted by the assignee. If you believe, from the evidence, that Estelle and B. A. Brown & Co. never had any understanding during the life-time of said Estelle that the said assignment should be made, and that the said assignment was not delivered to B. A. Brown & Co. during the life-time of Estelle, you will find for the defendant.” The objections under this assignment are to the validity of the assignment, and to the notice to the company. We have considered these questions under the previous assignments, and do not think the objections are tenable.

The remaining assignments of error (except the fourteenth) are taken to the charges of the court given and refused, and the sufficiency of the testimony to support the verdict of the jury, and may well be considered together. They involve the questions whether Estelle committed suicide, whether the act was the act of an insane man, and the correctness of the instructions to the jury upon these subjects. The testimony of the witnesses bearing upon the condition of Estelle’s mind has reference to two periods of his life; the first during his residence at Columbus from 1865 to 1872, and the second during his residence at Galveston.

Dr. Bowers was a practicing physician of thirty-five years’ standing. He became acquainted with Estelle in 1860, and1 knew him till he died. Estelle left Columbus in 1871. The doctor states: “I had every opportunity to learn his habits, disposition and character from the intimacy existing between us; he considered himself a member of my family; he wras a quiet, orderly gentleman; he was, at times, of a melancholy mood, particularly since the death of his wife, which occurred in 1867, and from the fact of being out of business for a good while and in great poverty; I never looked upon his mind as being unsound; the occasional despondency he at times experienced was always, in my opinion, caused by the circumstances surrounding him; I never heard any one express the least doubt as to his sanity; his mind always remained clear amd unclouded; after the death of his wife he was in a very despondent and unhappy mood; . . . his business did not prosper; ... he took to drinking for a week or twTo, a regular spree; this was before he lived at my house; at the end of the spree I was called to see him and was told he had poisoned himself with laudanum; on examination I could find no evidence of opium or any other poisoning except the toxic effect of spirituous liquors; he soon recovered, and from that time, or as long as I knew him, he never drank another drop; at no time did I consider him insane or liable to become so; adverse circumstances would render him unhappy and despondent, but not more so than many other people whom I have known and who never became insane.” On his cross-examination Dr. Bowers repeats that he never saw any symptoms of insanity in Estelle, and never knew him drunk but one time, when he acted like most drunken men but showed no sign of insanity.

Mrs. Barnard knew Estelle in I860; he and his wife boarded at her house; she never saw him under the influence of liquor. She states: Mr. Estelle was of a melancholy disposition, and was what I would call an eccentric man in his disposition; he has told me often that he felt as though he would commit suicide; talked as if be had it to do, and could not beep from it if he wished; in May, 1868, in Columbus, he attempted suicide; he told me of it, and that he could not help it; he promised me that he would not attempt it again; I cannot say what wras the cause of his rash act; he told me that he was under the influence of liquor at the time; after promising me that he would not attempt suicide again, he made the second attempt about two or three days afterwards; I last saw Mr. Estelle in February, 1874; I at that time thought him perfectly sane.”

This is all the testimony in reference to Estelle and the condition of his mind previous to his residence at Galveston. During his residence here all the witnesses concur in saying that his habits were regular and temperate. He was book-keeper, and a very competent one, for B. A. Brown & Co., and cashier from 1872 to the time of his death. There is no testimony in the slightest degree tending to show other than a perfectly sane condition of mind from the time of his taking up his residence in Galveston to the day wdien he took out his policy of insurance. Captain Roberdeen states that be never saw him under the influence of liquor but three times in his life—once at Columbus, once at Galveston in 1873, and last on the day of his death. He says he wras somewhat eccentric towards his friends while under the influence of spirits; his cheerfulness was increased while his gloom was intensified. It seemed to heighten his admiration for his friends and intensified his sorrow.

On the 12th of October, 1874, he applied to Dr. Richardson, the agent of the insurance company, for a policy on his life for $5,000. His answers to the questions which form part of the contract of insurance deny that he had ever been afflicted with insanity, delirium tremens, fits or any disease of any vital part, or that he was then afflicted with any disease of any kind. The physician of the company, wrho examined him upon his application, testified that he wTas apparently in most excellent health, a most desirable risk, the action of bis heart regular, the condition of his pulse regular and uniform — no physical or mental disturbance of any kind. He seemed anxious to get the policy as soon as possible.

Mr. Estelle impressed the officers of the company with the business-like manner in which he made inquiries in regard to the different plans of insurance. He was calm, cool, deliberate, showing neither excitement nor mental disturbance of any kind.” Dr. Richardson says: I read over to him carefully all the questions, to w'hich he made answer as in his application; he discussed with me the several modes of payment of premium, informed me that he preferred a policy on the quarter-yearly payment plan because he received a monthly salary; . . . discussed with me the possible assignment of his policy for the ben- ■ efit of his wife in the event of his marriage, saying that he contemplated marriage, and asked how this could be done; on the 13th the policy issued; on the^ldth Mr. Estelle got the policy.”

Mr. Shannon, who represented the Life Association of America, testified “ that a few days before his death Estelle informed him that he contemplated effecting some insurance upon his life, and inquired as to the rates and terms of insurance; he was minute in his inquiries, and impressed me with the business-like manner in which he discussed the subject of insurance; on the following day, about 7 o’clock-in the evening, he came to my office; ... he desired me to write out his application for a policy of $8,000 on his life; his examination was made by Br. ¡Randall the following day, after which Estelle informed Mr. Shannon that if the policy could be issued then he was prepared to pay for it; I told him that policies were issued at the home office of the company at St. Louis, and that if he desired it I would give him a binding receipt; he thereupon paid me one-quarter of the amount of premium upon his policy, and I delivered him a binding receipt; I was impressed by the calm, cool, deliberate, business-like manner of Mr. Estelle; . . . the next day Estelle called at my office and stated that he desired to assign bis interest in the binding receipt which I had given him, giving me the name of a young lady whom he proposed to make the beneficiary; the assignment was written out, and signed by Estelle, with the request not to give it publicity; there was nothing in his appearance indicating nervous or mental disturbance of any kind; I discovered nothing insane or irrational about him; that night Estelle died.”

Mr. Heblet testified that on the evening of Estelle’s death, after business hours, just as he was shutting up, Estelle came to the office of the Texas Mutual Life Insurance Company ; asked if his policy was ready; he remarked, in a peculiar way, that he was anxious to get possession of the policy as he might die before morning; I thought nothing of this at the time, for such conversations are frequent in relation to the delivery of policies. Mr. Sylvester was present at this conversation and remembers that something was said by Estelle, in a peculiar way, about suicide, to which Beblet replied that suicide would not do; that there was a provision in the policy exempting the company from liability''. LTeither of these witnesses discovered anything like insanity or irrational about him.

Mr. BeForest says that on the same day a Estelle called in at the office in which he was employed and asked me to go with him and take a drink, at which I was surprised, as I had never knoxvn him to take a drink in my life; he said he felt like he would like to get on a drunk, and asked me to get on one with him; said that if he did get on a drunk he Avould never get sober; I never seav signs of insanity about Estelle.”

On the 13th, Estelle, in presence of Godwin, executed, an assignment of the policy to Brown & Co., asking him to sign it as witness. On the evening before his death, the testimony of Capt. Roberdeen is: “I was 'standing on the sideAvalk in front of the ‘Tavo Brothers Saloon,’ about 9 o’clock P. M., when Mr. Estelle and another gentleman approached us from the east; Mr. Estelle recognized me and called me to him; xve entered the saloon; Estelle exhibited great nervous excitement, and from some cause drew a pistol, which Ave took from him, and some money and checks xvhich xve deposited xvith the bar-keeper; he expressed a determination to see some particular person that night, and I, xvith others, assisted him into a carriage in xvaiting, xvhich was the last time I ever saw him. dead or alive; I considered him greatly under the influence of liquor and oppressed by some sorroxv, to me unknown, or by him expressed to me.”

Manast says that that night at half-past eleven, as he was standing on Market street, Williams, the hack driver, rode up and informed them Estelle xvas dead; he accompanied Williams to the room; Williams stooped doxvn and picked up a vial labeled Prussic acid;” Estelle lay on his bed dead about txventy-five or thirty feet from where the vial xvas picked up; Estelle’s face xvas sxvollen, and there xvas a glaziness of expression about his eyes.

Williams, the hack driver, went for Dr. Rogers, who accompanied him to Estelle’s room. Dr. Rogers says: “ When he reached the house, and as he xvas in the act of alighting from the carriage, Williams stooped doxvn and picked up a vial from the sidexvalk and handed it to me; it was labeled prussic acid and contained two or three drops of this poison ; Estelle’s face was sxvollen, and his eyes had a set and glazed expression,, which arc the usual symptoms of death from prussic acid; 1 did not observe any odor of prussic acid, either about the body of Estelle nor in the room; he was very neatly dressed; the acid in nearly all of the drug stores is more or less diluted; a man could walk twenty feet after taking a dose of diluted acid.

Upon the succeeding day the policy of insurance was found with the assignment among Estelle’s papers, in Brown & Co.’s safe, and on examination of Brown & Co.’s books, it was discovered that Estelle had made false entries in their books against them to the amount of $2,514, and that this embezzlement had been going on from July, 1874, up to the time of his death. The physician, Dr. Welsh, testified “ that the smell emanating from the corpse of a man who dies from the effects of prussic acid is very perceptible.”

This is a very full statement of all the testimony in the record, giving the history of Estelle’s life, his habits, his mental condition and his death. And we have been thus particular because we think it will relieve us, in a great measure, from any very critical analysis of the charges of the judge, and from the necessity of deciding, among the conflicting and, indeed, bewildering decisions of the various courts, English and American, upon this vexed subject, involved in this contention, of suicidal insanity which is the better rule if any can be deduced therefrom. Indeed, the best authorities inform us that i£ there are no certain legal or medical tests by which this species of insanity can be demonstrated to exist. Each case must be determined by the circumstances attending it.” And to judge correctly of the propriety of the charge of the judge in any given case, it must be looked at in the light of the testimony and facts to which it is to be applied. Even instructions which, considered by themselves, may contain correct legal propositions, may be erroneous and tend to mislead when viewed in connection with their bearing upon the circumstances of the case in which they are delivered.

The charges of the court in this- case aré? as follows, so far as they relate to this question:

6. Should the jury believe that satisfactory proof that Estelle committed suicide has been adduced, they will inquire as to the condition of his mind at the time he did the act; and if he was then insane the policy is not void.

7. In order to establish such insanity as will entitle the plaintiffs and intervenor to a verdict, it is sufficient if the jury believe that he was impelled to commit the act by an insane impulse, while he had not the power to resist, and this although his death was caused by his voluntary act and though he knew and intended that his death should be the result of the act.

8. The act of suicide itself may be taken into consideration with the previous demeanor and conduct of the. party, and all the facts and circumstances, as items of testimony, to be considered as to the question of insanity.

9. The jury are the judges of the evidence and are to determine whether Estelle, if he committed suicide at all, did so while in the full possession of his ordinary reasoning faculties or under an insane impulse which he could not resist. The weight of the evidence is for the jury to pass upon, and the court cannot take from you any testimony which tends to show that Estelle uras or was not insane when the alleged suicide was committed.

4. Every man is presumed to be sane until the contrary is proved, and suicide by itself is no evidence of insanity, and if you believe that Estelle committed suicide within one year after effecting insurance with the defendant, he is presumed to have been sane at the time of his death; and unless it is proved, by the evidence in the cáse, that he was insanp at the time of his death, you will find for defendant.

5. In determining the question of insanity you will inquire whether Estelle had reason sufficient to distinguish right from wrong. If you find that he had sufficient understanding to know whether the physical consequence of taking poison was death, and if his death was caused thereby, and if he knew the difference between right and wrong at the time of his death, and at the time could have resisted the impulse to suicide, he was not insane in contemplation of law.

If the jury believe the testimony that Estelle, the insured, was affected with insanity previous to his making the application for insurance, or that he concealed or denied the fact, the plaintiff cannot recover. There is no presumption, prima facia or otherwise, that self-destruction arises from insanity, and if you believe, from the evidence, that the deceased, excited or disturbed in mind from fear of exposure or loss of reputation, formed a determination and executed such intention by taking his life, because he preferred death to life, and that such excitement or fear did not produce insanity, then the defendant is not liable; „ . . but if the deceased committed suicide while insane it would not render the policy void no matter what caused the insanity.

Ilecurring now to the testimony as to the character and condition of mind of Estelle while resident at Columbus, we think the conclusion from the proof is irresistible, that while there lie was neither of unsound mind nor did he exhibit any indications of, or tendency to, insanity. This is made clear by the testimony of Dr. Bowers.

If, however, we give any weight to the evidence of Mr. Barnard, or rather to the declarations of Estelle to him, of his attempted suicide and that he felt as if he must kill himself, this result must follow, that his declarations to the insurance company, which formed a part of the contract of insurance, were untrue; that in fact he had then been afflicted with the suicidal monomania, and this would avoid the policy.

And now, as to his condition at Galveston: The law, as stated by the judge, is supported by all the cases, “ that suicide is no proof of insanity, prima facia or otherwise.” What, then, are the facts or circumstances developed respecting his life and habits and condition of mind there, which indicate, in the slightest degree, a disordered intellect? Does any indication of it result from the fact stated by Roberdeen, that when under the influence of liquor “his admiration for his friends was increased, while his gloom was intensified?” Is this an unusual result from the use of ardent spirits ? Is this the test of an insane mind ? Life is not all sunshine. Moments of gloom and despondency will overtake the best balanced intellects, and if a conclusion of insanity is to be formed from these indicium, who among us could be pronounced sane?

Again, is it shown by the calmness, the deliberation, the business tact he showed in obtaining the policy of insurance upon his life? These are rather the indications of a perfectly sound mind. His perfect state of health, the regular action of his heart and the beat of his pulse, in sobriety, amd attention to the business in which he was employed, does, to the very evening of the day on which he died, repel all just conclusions of disease of body or of mind.

But it is said that the fact of his having embezzled the money of his employers, the feeling of remorse or shame, and the fear of detection and exposure soon to overtake him, may be supposed to have affected his mind and dethroned his reason. To our thinking this conclusion is completely negatived by the circumstances in proof. His conduct about the obtaining the insurance upon his life, the urgency with which he sought it, and the eagerness he displayed to have the policy in hand, the jocular remark that he might die before morning, the assignment of it but a little while before his death, the intoxication induced evidently of purpose “ to screw his courage to the striking point,” the declaration, “ that if he got drunk he would never get sober,” the' means prepared, a pistol in his pocket and, as we think, the proof indicates the poison at hand, the return to his room and the immediate act then of self-slaughter. These circumstances evince a predetermination and deliberation, a foregone conclusion, which excludes the idea of insanity, or insane impulse, or a diseased condition of mind.

We have little hesitation in saying that the testimony does not develop a single fact tending to show that Estelle was of unsound mind at the time of his death. There are no circumstances to add to the fact of suicide from which it can be inferred.

The declarations which he made to Mrs. Barnard, so many years before his tendency then to suicide, besides being proved false by the testimony of Dr. Bowers, cannot be referred to in connection with the act of suicide, for the reason we have given, that if true they proved that he then was affected with the suicidal mania, and this would vitiate the policy.

Let us now consider the charge of the judge. The chief objection to it, which impresses ns, is the small foundation for it in the proof. We look in vain to the testimony to discover anything therein which would require the discussion of the subject of insane impulses, which he had not the power to resist, or of the existence of a diseased or disordered state of intellect in Estelle, or of such excitement or fear which might produce insanity.

The oft-repeated instructions upon these subjects were, we think, calculated, unduly, to impress the jury with the idea that there was proof of Estelle’s insanity.

But again. When the judge charged that the jury might, with the fact of suicide, take into consideration the previous demeanor and conduct of the party and all the facts and circumstances, he should have instructed them as to the effect upon the validity of the contract of insurance of the declarations of Estelle to Mrs. Barnard, tending to prove the existence previously of the suicidal monomania, for the reasons which we have already given.

So, we think, the ninth charge was calculated to mislead them in this, that in instructing them “ that the weight of evidence was for them to pass upon, and the court cannot take from you any testimony which tends to show that Estelle was or was not insane when the alleged suicide was committed,— it was, in effect, to tell them that testimony had been admitted which tended to prove that fact, and to point their attention, in connection with the other charges in which he dwelt upon the subject of insane impulses not to to be resisted, directly to the testimony of Mrs. Barnard disclosing Estelle’s previous recitals of attempted suicide, and his talk of how he had to do it, and could not keep from it if he wished.”

Again: Although the phrase “insane impulse” is used in medical and legal works, in connection with the indications of insanity, we do not think, as addressed to the average juror, it is likely to convey the exact sense in which it is properly used. In a legal or medical sense it means the impulse of an insane mind, whereas to the common comprehension it rather conveys the idea of a rash, sudden, thoughtless, unreasonable and crazy notion, necessarily springing from diseased mental faculties.

It remains to be considered what is the proof of suicide. The testimony, of which we have given a pretty full statement, in our judgment establishes that fact beyond a reasonable doubt. The death of Estelle with appearance after death of one who had died by prussic acid; the-findingof the vial so close to the scene of death with drops of that poison remaining in it; the declaration that, getting drunk, he would never get sober; the dread of exposure which was upon him; the eagerness to complete the business of insurance of his life,— these facts point inevitably to an act of self-destruction.

We conclude, because of the reasons indicated in this opinion : 1. The error of the court in not permitting the question to be asked of the juror. 2. The tendency of the charge to mislead the jury. 3. But especially because the verdict óf the jury is not simply against the preponderance of testimony, but because it is against the evidence,— that the judgment should be reversed and the cause remanded, and it is so ordered.


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    Geo. F. Alford et al. v. Thales McDonald et al.
    (March 19, 1880.)
    Trespass to try title — Land patented by mistake to party not its owner — Trust.— Where a surveyor made a survey for A. by virtue of a land certificate once owned by B., but in making his return of the field-notes to the general land office he, by mistake, applied to them another certificate, the property of B.’s estate, and, by like mistake, applied his certificate to a survey made for the estate of B., said certificate differing one from the other only in their numbers, and said surveys both having been patented to the heirs of B., and A. having taken immediate possession of the land surveyed for him and held it for years as his own without adverse claim on the part of B.’s heirs, held, that under the facts A. and his vendees, as against said heirs, were entitled to the land surveyed for A.
    Appeal from McLennan county. Opinion by Quinan, J.
    Statement.— This is an action of trespass to try title instituted 13th of July, 1870, by plaintiff (appellant), administrator of G. G. Alford, deceased, and the heirs of deceased, to recover of McDonald nine hundred and sixty acres of land in McLennan county, patented to the heirs of G. G. Alford, deceased. The case substantially set out in the pleadings of the defendants, and very clearly established upon the trial, ivas, so far as it is material to the controversy, as follows:
    In the year 1852 Joseph Inman was the owner of two certificates for land of six hundred and forty acres each, of what is known as the Tob}*- scrip. These certificates were numbered 353 and 358. These had at one time belonged to G. G. Alford. At the same time Inman, who ivas then administrator of the estate of G. G. Alford, had in possession, as belonging to said estate, another certificate of the Toby scrip for six hundred and forty acres, numbered 354. These certificates were distinguishable one from the other only by their numbers.
    Inman placed these three certificates in the hands of the locators and surveyors Bice and Lewis, who were the deputy surveyors .for Robertson land district, for location and survey, with instructions to survey the lands separately, that is, the one thousand two hundred and eighty acres belonging to Inman by itself, and that of the estate separately ; “ that the surveyor did locate and survey for Inman one thousand two hundred and eighty acres of land in a square form as one survey, and intended to put his certificate upon it and thought he had done it; ” that the surveyor did locate and survey the tract of six hundred and forty acres (called the upper tract) for the estate of Alford, and intended to place the certificate belonging to the estate upon it and thought he bad done so; that he, the surveyor, always after that regarded the lower tract (the one thousand two hundred and eighty acres) as Inman’s, and the upper (the six hundred and forty acres) as the estate’s, and never heard any one claim otherwise until lateljL
    J. H. Roberts, a witness, testified that he assisted in making the surveys; that the understanding at the time was that the lower survey was made for Inman, and the upper for the estate of Gf. Gr. Alford; that Inman always claimed and controlled the lower tract as his own from the time of location, and never heard it claimed by any one but him and those claiming under, until this litigation commenced. He stated that he lived near the land, was Inman’s agent for the land, and sold it for him to McDonald, the defendant. The two certificates were surveyed together as one survey.
    It conclusively appears, however, that the surveyor, on returning the field-notes of the surveys to the land office, by mistake applied the certificate Ho. 354, which belonged to the estate of Alford, together with the certificate Ho. 358, which belonged to Inman individually, to the one thousand two hundred and eighty acres which he had located and surveyed for Inman, and also, by mistake, applied the certificate Ho. 353, belonging to Inman, to the upper tract of six hundred and forty acres, located and surveyed for the estate of Alford.

      In March, 1857, Inman sold to McDonald nine hundred and sixty of this one thousand two hundred and eighty acre tract (three hundred and twenty acres of which appears to have been conveyed to the locator), and executed his bond to make him a title, describing the land as nine hundred and sixty acres, part of the tract of one thousand two hundred and eighty acres located by B. B„ Lewis, etc., by virtue of two Toby land scrip certificates, title to the same having been decreed to me, etc. McDonald paid $1,920 for the land. After this sale the patents issued.
    The patent for the six hundred and forty acre tract is dated the 5th of December, 1857, and described the land as located by virtue of Toby land scrip Mo. 353.
    The patent for the one thousand two hundred and eighty acres is dated the same day and describes the land as located by virtue of Toby land scrip Mos. 354 and 358 in one survey.
    Both patents issued to the heirs of Gf. G-. Alford. It is not shown when they were taken from the land office. McDonald, immediately upon his purchase of the land, took possession and has lived upon it ever since, paying the taxes, and has made valuable improvements. The heirs of Alford appear to have rendered the six hundred and forty acre tract for taxes for some years. It is still uncultivated land. It has always been known as the Alford tract.
    There is no difference in value in the upper and the lower tracts. The six hundred and forty acre tract is perhaps the best "land, the other way now, but not when located, being in a better locality. The one thousand two hundred and eighty acre tract is incapable of a fair division into two equal tracts. The defendant filed with his answer a release to the heirs of Alford for all claim to the upper six hundred and forty acre tract. They prayed to be quieted in this title ánd for general relief.
    The cause was submitted to the judge, a jury being waived, and judgment was rendered for the defendant that the equitable title to the land was in him and vesting in him the legal title to the same. The plaintiffs appealed. The assignments of error are: 1. That the court erred in overruling plaintiffs’ exceptions to defendants’ answers. 2. In rendering judgment for defendants. on the law and evidence in the case.
   Opinion.—From this statement of the. case it appears manifest to us that these assignments are not well taken, and that there is no error in the judgment. By the delivery of the two certificates, Wos. 353 and 358, to the surveyor for location, and the actual survey under them, for him, by the surveyor of the one thousand two hundred and eighty acres in one body, Inman acquired an inchoate right to the land. It was a valid appropriation of it, capable of being carried into a patent. So, also, by the location and survey of the other six hundred and forty acres for the estate of Alford, that land was appropriated to them. Howard v. Perry, 7 Tex., 275; Hamilton v. Avery, 20 Tex., 635; Hollingsworth v. Holshousen, 17 Tex., 43; Word v. Conner, 33 Tex., 568.

The mistake of the surveyor, in the application of his field-notes upon the return to the general land office, should not have the effect of divesting or changing the rights of the parties. Mor do we think could Alford’s heirs by reason of this mistake acquire any right to hold Inman’s land. It was a mistake which could have been rectified at the land office before the issuance of the patents, had it been discerned in time. Or even after the issuance of the patents the commissioner of the general land office could upon proper proof cancel the patents and correct the error. The issuance of the patent to them under the circumstances of the case, though it vested in them the apparent legal title, surely they cannot be permitted to enjoy the beneficial interests in the land without violating the plainest principles of equity. Doswell v. De La Lanza, 20 How., 29; Urquhart v. Burleson, 6 Tex., 511; Coleman v. Worley and wife, 3 Dana, 486.

It is such a case in which, as is said in Hill on Trustees, 144, “The court will raise a constructive trust and fasten it upon the conscience of the legal owner so as to convert him. into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment.” So in Perry on Trusts, page 159, and the cases cited, it is recognized as a settled rule in equity that where a deed is drawn by accident or mistake to embrace property not intended by the parties, equity will construe the grantee to be a trustee, and will execute the trust by reforming the deed or ordering a reconveyance. It would be against natural right to allow a person to hold property which he never intended to buy, and which has come to him by such mistake. See references above.

Here the defendant, McDonald, in perfect good faith bought and paid for this land, without knowledge or suspicion of any flaw in his title, before the issuance of the patent, and perhaps before the mistake in the change of the certificates or field-notes had occurred; he had lived upon, the land for thirteen years before the institution of this suit without the least reason to think his title defective, rendering it for assessment year by year and paying taxes thereon; he has made permanent and valuable improvements; his possession has been public, open and continuous, and it is the very land which his grantor in 1872 had located, surveyed and become equitably entitled to hold. The form of the survey, the location of his improvements, is such as to preclude a division of the land. To divest him of his possession, would work to him irreparable injury. On the other hand the plaintiffs have and hold in undisputed enjoyment the very land which was located and surveyed for the estate of the ancestor. It is proven to be at least as reliable as that located for Inman. They have suffered no injury. It would be manifestly unconscionable to permit them to take advantage of the mere mistake of a ministerial officer, whereby the legal title became vested in them, to deprive the defendant of the land he had purchased from the equitable owner of it, paid for and improved, and now to acquire it for themselves. Ho court having respect to equity and regard to fair dealing, and clothed with jurisdiction to relieve in cases of fraud, accident or mistake, would suffer the perpetration of so manifest an injustice.

The'judgment rendered was the proper judgment to ren- ■ der in the court below, and it must be affirmed.


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    J. P. McKenzie and wife v. C. J. Harris.
    (February 13, 1880.)
    Dkaft — Liability of payee'as indobseb.—The liability which the payee of a draft, by writing his name on the back of the instrument and transferring it, Incurs is that of indorser, and parol testimony is inadmissible to show that his liability is not that of an indorser, but of an original promisor or guarantor.
    Same — Due diligence.— Parol evidence is inadmissible to prove that the indorser of a draft released the holder thereof from his obligation to use due diligence to collect it.
    Same — Release of indobseb.— The failure of the holder of a draft to use due diligence to collect it releases the indorser from liability to pay it.
    Appeal from Ellis county. Opinion by Quinan, J.
    Statement.— This suit was instituted on the 5th of August, 1873, by Harris against the president and treasurer of Marion College and McKenzie and wife, upon a draft drawn by F. P. Fry, president of the board of trustees ■ of Marion College, on B. F. Hawkins, treasurer of the board, in favor of J. P. McKenzie, for S596, accepted on July 10, 1872, and who, on July 15, 1872, transferred it to J. L. Stroop. The petition alleges that at the same time McKenzie and wife executed a mortgage to secure the payment of the draft; that afterwards, on the 2d of August, 1873, Stroop transferred the order and mortgage and delivered them to petitioner. He prays judgment for the amount of the draft and a decree foreclosing the mortgage.

      The draft is in these words:
    $596 specie. B. F. Hawkins, treasurer board of trustees Marion College: Pay J. W. McKenzie, president of Marion College, the sum. of five hundred and ninety-six specie dollars, in full of the balance of his salary as president for the term ending June 14, 1872. Waxahachie, July 10, 1872.
    (Signed) R P. Fry,
    President Board of Trustees, Marion College.
    Accepted July 10, 1872.
    (Signed) B. F. Hawkins,
    Treasurer Marion College.
    Indorsed: Pay J. L. Stroop or order.
    (Signed) J. W. P. McKenzie,
    Received on the within, $34 coin.
    (Signed) G. J. Harris.
    The mortgage is in form a deed from McKenzie and wife to J. L. Stroop, with this condition: “ That in case B. F. Hawkins shall pay or cause to be paid to the said J. L. Stroop five hundred and ninety-six dollars specie, which is evidenced by an order on said Hawkins by F. P. Fry in favor of J. W. P. McKenzie for said amount, dated July 10, 1872, and accepted same day by said Hawkins, this instrument is to be null and void, otherwise to remain in full force and effect.” The-date is July 15, 1872.
    With the mortgage there is a transfer of it from Stroop to Harris on'the 2d of August, 1873, and “the claim upon which it is founded.”
    By an amendment the members of the board of trustees of Marion College were made parties, who pleaded they were not liable personally, and thereafter the suit proceeded as against “ Marion College.”
    On the 8fch of May, 1874, defendant McKenzie demurred generally and excepted specially to the plaintiff’s petition and amended petition, that plaintiff not having sued at the first term of the district court, nor at the second term with good cause shown for not suing at the first term after his cause of action arose, and the draft not having been protested, that by the gross laches of plaintiff he is released from his liability. He also repeated the general denial.
    On the 25th of May, 1874, plaintiff, by an amended petition, set np that defendants (Marion College), through their authorized agent, B. F. Bay, contracted with Stroop to pay interest on said order from the date at two and one-half per cent, per month, for which he prays judgment. On the 11th of September, 1874, the court sustained the defendant McKenzie’s demurrer. The demurrer of Marion College was overruled.
    On .the 12th of September, 1875, plaintiff amended, alleging in substance that about the 15th of July, 1872, McKenzie applied to Stroop for a loan of money to the amount of the draft, and offered him the draft upon which to raise the money; that Stroop refuséd to let him have it unless he would become personally responsible and secure the payment of the same by mortgage on real estate; that these terms were accepted by McKenzie, and in pursuance of the same he procured the money and made himself responsible by signing his name to the draft and executing with his wife the mortgage described in plaintiff’s original petition.
    He further alleges “ that said McKenzie was party to the agreement, evidenced by the memorandas written on said draft with regard to the payment of interest, which said' memoranda is here referred to and made part of this amendment, whereby he became liable for the payment of interest at the rate specified in said memoranda, and that this agreement to pay interest as aforesaid entered into and formed a part of the terms proposed by said Stroop and accepted by said McKenzie, and upon which agreement McKenzie received the sum of money aforesaid.”
    That after this agreement McKenzie, from time to time, requested that suit should not be instituted for the payment of said money and the foreclosure of said mortgage, and that, in pursuance of this, suit was delayed until the filing of plaintiff’s petition; that immediately before- the institution of the suit McKenzie told Stroop the time had arrived for the institution of the suit, “ and therefore plaintiff immediately sued, by reason of all which McKenzie became liable to pay plaintiff the sum of money in said draft mentioned, together with the interest at the rate in the memoranda before specified; that the mortgage was executed the better to secure the payment of the same,” etc.
    The defendant McKenzie demurred to this amended petition and his demurrer was overruled.
    The cause came on for trial on the 9th of January, 1875, and was submitted to the judge. The plaintiff read in evidence the draft sued on, the memorandum and mortgage. The memorandum is in these words: This memorandum is intended to show that the undersigned, as president of the board of trustees of Marion College, agreed to pay J. L. Stroop two and one-half per cent, interest per month on the above claim against the college from the 1st day of September, 1872, until paid.
    (Signed) F. P. Fbv,
    President Board Trustees, Marion College.
    Stroop testified that the money loaned to McKenzie was Harris’ money, which he had given him to lend out at two and one-half per cent, interest per month, with security upon real property.
    That about the 15th of July, 1872, McKenzie applied to him for the loan of the amount of money mentioned in the draft, and offered the draft to raise the money on; that Stroop refused to let him have it unless he became personally responsible and secure the payment of the same by mortgage on real estate; that these terms were accepted by McKenzie, who, in pursuance of the same, procured the money and made himself responsible by indorsing his name on the back of the draft and executing the mortgage described in the petition.
    Stroop further stated that it was on the faith of the mortgage he let McKenzie have the money; that frequently after this transaction he asked McKenzie whether he should sue; McKenzie told him not to sue until he told him, and he did sue as as soon as McKenzie told him.
    He further stated that McKenzie paid interest on the money to 1st September, 1873, at two and one-half per cent, per month, and promised to pay that rate of interest from and after that date in case the draft should not be paid in full by the said board of trustees by or before that date; and that it was partly upon the faith of said promise to pay said interest that he let McKenzie have the money, and McKenzie repeatedly afterwards promised to pay said interest.
    He further stated that the interest memorandum on the draft was not there when he got the draft from McKenzie, but that the same was made and attached to the draft afterwards in the absence of McKenzie, in accordance with an agreement with McKenzie to that effect.
    To the testimony of Stroop, as it was offered, the defendants excepted, on the ground that the contract of McKenzie was that of an indorser, and that parol testimony was inadmissible to vary or alter its terms; that parol testimony is inadmissible to prove that McKenzie released the holder of the draft from his obligation to bring suit at the first term of the court after the cause of action accrued; that the testimony as to the agreement to pay interest varies the terms and the legal effect of the original contract, etc.; but the defendant’s exceptions were overruled and the witness permitted to testify as stated.
    The court rendered judgment against Marion College and J. P. McKenzie for $1,031.76, and that the judgment bear interest at that rate until paid, and costs, and decreed a foreclosure of the mortgage to pay the judgment,—execution first to be issued against Marion College. The defendant, McKenzie, has prosecuted this writ of error from the judgment and assigns for error: 1. Overruling his exceptions to petition of 12th of September, 1874. 2. Admitting parol evidence to prove that McKenzie released plaintiff from his obligation to sue. 4. In admitting parol evidence that McKenzie verbally agreed to pay the interest in the memorandum. 5. That the judgment of the court is contrary to the evidence.
   Opinion.— The liability which McKenzie, the payee of the draft sued on, by writing his name on the back of the instrument, incurred, was that of indorser. The contract of indorsement is as fully expressed by his signature as if it were written out in full above it. There is no ambiguity about it. He contracts to pay the draft himself if Hawkins, the treasurer of Marion College, does not pay it, and suit is instituted thereon at the first term of the court after the right of action against Hawkins accrues, or at the second term if good cause is shown wiry suit was not instituted before the first term after the right of action accrued, or if he will have the draft duly honored for payment. Daniels on Neg. Inst., 498; Story on Bills, 103.

“ The receipt of a bill implies an undertaking on the part of the indorsee or other holder to every party on the bill who would be bound to pay it ... to allow no extra time and grant no indulgence for payment, and to take all the proper steps and do all the proper acts required by law upon its dishonor to verify and establish the same. A default in any of these respects will discharge the party who would otherwise be bound to pay the same from all responsibility on account of its non-payment, and will operate as a satisfaction of anydebt or demand for which it was given.” Story on Bills, 135.

There was nothing, then, ambiguous in the character of McKenzie’s undertaking, as expressed by his indorsement; and where there is no ambiguity to explain, parol testimony is not admissible to vary or to contradict the agreement. It is inadmissible for the purpose of qualifying or modifying the contract. Wharton on Evidence, 1058; Daniels on Keg. Inst., 533.

The court erred, therefore, in permitting Stroop to testify’', so far as his testimony went to establish that McKenzie’s liability was not that of an indorser but of an original promisor or grantor.

We think, also, that the court erred in permitting parol testimony to show that McKenzie had requested Stroop not to sue upon the draft, and of his subsequent promise to pay it.

The statute of 20th January, 1840, “An act to dispense with the necessity of protesting negotiable instruments for dishonor, and of giving notice thereof, and to regulate assignments of all written instruments,” by the first section provided “ that it shall not be necessary for the owner, as holder of a - bill of exchange, promissory note, check, or draft, or other mercantile negotiable instrument, to have any of these instruments protested for non-acceptance or non-payment, nor shall it be necessary to give notice of such dishonor to any drawer, indorser or assignor of the same, and every such party shall, without any protest or notice whatever, be held responsible or security for the final payment of every such instrument; provided, however, that in all cases in which either a protest or a notice was hitherto necessarj7, the partythat would have been released from responsibility by a failure to make such protest, or to give such notice, shall hereafter be released from all responsibility unless the owner or holder of such instrument shall use due diligence to collect the same; and every holder or owner shall be adjudged not to have used due diligence who shall not have instituted suit against the drawer or maker of such instrument before the first term of the district court after the right of action accrued, or shall not institute such suit before the second term of said court, and also show good cause why he did not institute his suit before the first term.”

The third section of this act applies to the assignment of bonds or other .written instruments, and provides that “ to hold the assignor as security for the payment of the instrument, the assignee shall use due diligence to collect the same.”

Here, then, we 'have a legislative construction of what due diligence means. It is the institution of suit before the first term of the court after the right of action accrued, or at furthest before the second term, if good cause be shown, why it was not instituted at the first term.

And although this first section of the act of 1840 was repealed in 1848, and a provision made by the act of 1848 permitting the liability of indorsees to be fixed as well by protest as by suit, in certain cases, yet it has been held that the term due diligence ” meant the same thing in both instances, viz., by suit or by protest.

Chief Justice Hemphill says, in Thompson v. Payne: The statute changed the acts, which would fix the liability of the drawer or indorser of negotiable instruments, and substituted suit, styling such suit diligence. We think it plain that the legislature intended to give the same meaning to the term due diligence in this connection that was applied to it in the first section of the act (of 1840), viz., the bringing suit at the first term, and if not at the first, at the second term after the accrual of the cause of action, with good cause shown.” 21 Tex., 625.

By the seventh section of the act of 1840 (article 206, Paschal’s Digest), it is provided that parol testimony shall be inadmissible to prove that the assignor, drawer or indorser released the holder of any of the aforesaid instruments from his obligation to use due diligence to collect the same.”

And this embraces every class of instruments negotiable or assignable by law. It would seem very clear, then, that the testimony of Stroop was inadmissible to prove that McKenzie had released Stroop from his obligation to sue at the first or second term of the court after the assignment of the draft to him, and consequently that, suit not having-been brought, McKenzie’s liability upon "the draft ceased. He was no longer bound upon it, nor was it his debt; it remained the debt of Marion College only.

It is insisted, however, that, by McKenzie’s promise to pay after his liability had been, discharged by the failure to sue the college and by his subsequent payment of interest, he is estopped from availing himself of that as a defense.

Without doubt these circumstances have been almost universally held in other states, where no such provision exists in regard to the admissibility of parol evidence of release, as admissible to excuse the want of diligence and to prove a waiver of the necessary diligence, or rather as an acknowledgment that the necessary steps had been taken to hold the indorser liable. Daniels on Neg. Inst., 2d vol., 167; Story on Notes, 274. And it is said that where he promises to pay the bill or note such promise imports an unconditional assumption of it and a dispensation with whatever preliminary evidence might be necessary to charge him with its payment. Daniels on Beg. Inst., 171.

But citations from the adjudications of other states, where no similar statute regulates the admissibility of evidence, are altogether inapplicable here. To permit the introduction of such proof by parol would violate the plain meaning of the statute (art. 206), and would be opposed to the policy of the law, which was doubtless designed to relieve the courts of the embarrassing questions and controversies which, without stint, would necessarily spring up in-determining what acts or expressions would or would not amount to a waiver of diligence, and to provide a fixed rule upon that subject, adapted to our people, our times and our system of laws.

Again, if the liability of McKenzie was wholly discharged, as we think it was, and the debt, remained as the debt of Marion College, his parol promise to pay it was a promise " to pay the debt of another, and therefore invalid. If we look at the provision of the statute requiring diligence, and limiting the period within which suit may be brought, as a law of limitation, as was the view taken of it by the supreme court in Locke v. Huling, 24 Tex., 312, and that the debt as against McKenzie was wholly barred, then it could not be revived except by a written acknowledgment. P. D., art. 4617a.

But it is urged that the mortgage made by McKenzie and wife bound him to pay the debt to Stroop, and is a continuing acknowledgment in writing of his liability on the draft. How, the mortgage speaks for itself, and it seems to be carefully worded to convey the very opposite idea. It is certainly not a security for McKenzie’s indorsement, but it binds the land only on the condition 66 that B. F. Hawkins shall pay or cause to be paid to the said J. L. Stroop $596, which is evidenced by an order on said Hawkins in favor of J. W. P. McKenzie for said amount, dated July 10, 1872, and accepted the same dajr by said Hawkins.” The mortgage stands unaffected by McKenzie’s release as indorser. It still remains effectual as security for the payment, by Hawkins, of the amount specified according to its terms.

That McKenzie is not liable upon the memorandum signed by Bay for the payment1' of interest at two and one-half per cent, per month scarcely needs serious discussion. It is not signed by him, he is in no sense party to it or liable upon it, it forms no part of his contract of indorsement; nor is the allegation of his connection with it so as to make him liable upon it (in itself wholly insufficient to .charge Mm with any liability) supported by any proof whatever. It seems an obligation for the benefit of Stroop, made by Fry, possibly at the request of McKenzie, and had he designed it as obligatory upon himself he doubtless would have signed it; but it is executed in Ms absence, long after ■ the transfer of the draft.

We do not doubt that if, for the loan of money from Stroop, McKenzie had, at the date of this transaction, undertaken to pay interest at two and one-half per cent, thereon, even by parol, such a contract" could be enforced against him, but it cannot be tacked on to his obligation as indorser. It would constitute a separate and independent cause of action against Mm.

1. We conclude, therefore, that the court erred, for the reasons indicated, in overruling defendant’s exceptions to the plaintiff’s amended answer.

2. That the court erred in permitting the introduction of the parol testimony.

3. That it erred in the judgment rendered, and therefore this cause should be reversed.


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    W. J. Craig, Adm’r, v. Q. Davidson, Adm’r.
    (January 16, 1880.)
    Estates of deceased persons.— Claims against; commissions due former administrator; plea of limitations by administrator de bonis non.

    Appeal from Victoria county. Opinion by Walker, J.
    Statement.— April, 1867, Mitchell qualified as the executor of the will of J. 0. Wheeler. In September following he died. In 1868 Davidson was appointed administrator de loonis non.

    It seems that Mitchell, who had been Wheeler’s chief clerk, had so kept his accounts and the funds of the estate that Davidson, from.an inspection of the books and counting the moneys left, ivas able to ascertain, to his satisfaction, what money Mitchell had collected of the estate and what he had disbursed. The result thus ascertained, in 1868, was, by Davidson, reported to the probate court.
    Craig, the appellant, was appointed administrator of the estate of Mitchell July 17, 1875, and after Davidson had filed his final account and had asked to be discharged; Craig filed opposition to the discharge, asking an order for the payment of the statutory commissions upon the money collected and paid out by his intestate while executor of Wheeler’s estate, with interest from January 1, 1868. Davidson pleaded limitation of five years.

      The above facts were passed upon as evidence and submitted to the court. The claim for commissions was not recognized by Davidson in his report to the court; it had never been approved by Davidson or established by suit; had never, in any way, been urged until July 17, 1875, in the resistance to Davidson’s discharge. Judgment was rendered for the defendant on the statute of limitations, and Craig appealed.
   Opinion.— The appellant insists that the claim was not barred by limitation, and cites the cases of Haggerty v. Scott, 10 Tex., 531, and Hefflefinger v. George, 14 Tex., 581, in support of his position. An examination of these cases does not satisfy ns that the court below was in error. In Haggerty v„ Scott, a minor plaintiff was held not to be concluded by limitation in a suit against the securities of a former guardian, who had been displaced by the appointment of his wife, at the selection of the plaintiff, the wife being under disability also to sue, and suit having been brought before any complete limitation had been reached, either as against the guardian or the minor plaintiff. The case in 14 Texas only held that while the final account had been passed, the orders from time to time made in the progress of one administration were, in their nature, interlocutory, and that limitation only ran from the final order.

On the death of Mitchell in September, 1867, the estate of Wheeler was vacant. Davidson succeeding in the administration in 1868, was charged with the duty, as against Mitchell’s estate, of taking charge of the assets of Wheeler’s estate. If not impeded in the work of reducing the assets to his possession, suit was unnecessary against the estate of Mitchell. If, in collecting the assets of Wheeler’s estate, Davidson encroached upon the estate of Mitchell, and if he appropriated, as funds of Wheeler’s estate, money which should properly have been allowed to the estate of Mitchell, then an action would lie therefor. Miller v. Wingate, 11 Tex., 434. The cause of action was the appropriation of the funds by Davidson. Suit could have been at once instituted. The statute of limitations would therefore run in favor of Davidson’s duty to make the plea.

There is no trust relation between Davidson and the Mitchell estate other than would arise from the relation of debtor and creditor. Davidson is trustee for the creditors and heirs of Wheeler. Craig, as administrator of Mitchell’s estate, is not a beneficiary except in the event he establish his claim as creditor. Davidson did not recognize the claim for commissions to Mitchell’s estate in his report to the probate court; it therefore devolved on Craig to establish the claim. This was never done; when the proceedings for that purpose were taken the claim was barred and the plea of limitation was a defense.

There is no error, and the judgment below should be affirmed.


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    L. McKellar and wife v. W. D. W. Peck.
    (March 16, 1880.)
    Conveyance of homestead.— Requisites of; privy examination of wife; admissibility of parol evidence to show; notary’s certificate must be under seal.
    Appeal from Gonzales county. Opinion by Walkeb, J.
    Statement.— On the former appeal in this case, on substantially the same facts, the supreme court held the trust deed inadmissible as against the homestead rights of Mrs. McKellar. An examination of the authorities cited by counsel, and such additional investigation as we have been able to give, leads us to the same conclusion. The act defining the mode of conveying property in which the wife has an interest, being the law for the sale of the homestead, prescribes that “ the judge or notary shall certify such privy examination, acknowledgment and declaration, under his hand and seal, by a certificate annexed to said writing,” giving a form which may be followed. The act also prescribes that “ any certificate showing the requisites of the law shall be as valid as the form here prescribed, and such deed or conveyance so certified shall pass all the rights,” etc. This, as to lands, is the exclusive mode of conveying the wife’s separate property or the homestead. Berry v. Donley, 26 Tex., 745. To deeds so certified, the certificate 'of privy acknowledgment being under the hand and seal of the officer, is given the effect of passing title.
   By statute “ no notarial act shall be valid unless the seal of office of such notary be appended.” Pasch. Dig., 4684. Under a statute similar in terms in Illinois the supreme court of that state held: “ We cannot say that the seal is a mere formality that adds nothing to the dignity or solemnity of the instrument. It is enough that the law positively requires it. The propriety of the requisition rests with the legislature. A notary is empowered to take the acknowledgment of a deed and certify the same under his official seal. He has no power to do it in any other manner.” Mason v. Brock, 12 Ill., 277; Booth v. Cook, 20 Ill., 130; Holbrook v. Nichol, 36 Ill., 163; Harding v. Curtis, 45 Ill., 252; Elliott v. Peirsol, 1 Pet., 338. See, also, King v. Russell, 40 Tex., 430.

If it is the deed so certified that passes the title, can the certificate or an essential part of it be supplied by parol testimony? “A certificate of acknowledgment is something more than a written instrument. It is the evidence required by law of the execution and acknowledgment of a written instrument of the highest order. Can the requirements of the law be thus qualified or corrected even in a court of equity?” O’Farrell v. Simplot, 4 Iowa, 164, 165; Berry v. Donley, 26 Tex., 745.

“If there is a defect in the wife’s conveyance rendering it void at law, it is equally so in equity.” 1 Bishop on the Law of Married Women, § 599. The court below evidently regarded the privy acknowledgment as passing the wife’s title, regarding the notarial certificate only as evidence of the examination. The notary was permitted to prove the privy examination, and on this testimony the deed of trust was admitted.

It is believed that our statute, as construed by our court, means, so far as applied to this case:

1. That the statute enabling married women to convey (P. D., art. 1003) by deed is, as to the mode of conveying their separate property in land and their homestead rights, exclusive, negativing the validity of any other. Berry v. Donley, 26 Tex., 144; Belcher v. Weaver, 46 Tex., 296.

2. That it is the authenticated certificate of privy acknowledgment to the deed that gives it the effect of passing title; it being only deeds so certified that pass title. Statute and cases above; Elliott v. Peirsol, 1 Pet., 338.

3. The certificate concludes the wife’s interest, and cannot be attacked save for fraud; on same principle it should not be aided by parol. Williams v. Powers, 48 Tex., 141; Hartley v. Frosh, 6 Tex., 208.

4. The official seal, under the original statute prescribing the form, and under the statute governing the duties and powers of notaries, is necessary to the validity of the notarial certificate of privy acknowledgment. The absence of the seal renders the certificate invalid.

5. The notarial certificate being the evidence required for the fact of privy examination, it was error to admit parol testimony to such examination.

For the error in the court below in giving to the trust deed so proven the effect of conveying the homestead, the judgment must be reversed. There being no testimony sufficiently identifying the homestead, the cause will be remanded for the purpose of ascertaining the boundaries of the homestead of two hundred acres; the plaintiff to recover the excess over the "two hundred acre homestead.


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    Kauffman & Runge v. R. A. Dean.
    (February 24, 1880.)
    Venue.—Contract to pay debt in county other than the county in which the promisor resides.
    Appeal from Galveston county. Opinion by Walker, P. J„
    Statement. — This was a suit brought in the district court of Galveston county by the appellants, against the appellee, on an open account for $724.95, the same being, as is admitted in the statement of facts, for advances made and supplies delivered tty plaintiffs to the defendant upon a certain letter from defendant to them, written before the advances were made and the supplies furnished, which letter, it is further admitted, was the basis of the business relations between the parties. The defendant is shown by the petition to be a resident citizen of Van Zandt county, in this state; he filed, as answer to the petition, a plea in abatement setting forth the fact of his aforenamed residence in abatement of this suit, and denying, specially, the allegations of the petition, which averred that, by the terms of the contract between them and the defendant, he undertook and promised to pay plaintiffs the debt aforesaid in the city and county of Galveston. The plea in abatement does not state any further or other ground, nor does the record develop any other pleadings in the case. The record seems to be intended to present an agreed statement of the case under article 1516, Paschal’s Bigest. • It is fairly to be inferred that the issue was tried before the judge and without a jury; on the hearing of the evidence judgment was rendered sustaining the plea and dismissing the case.
    The appellants assign as error two grounds, as follows; 1. The judgment of the court on the defendant’s plea in abatement, alleging residence in Van Zandt county and denying promise to pay in Galveston county, is contrary to law and the evidence, in this, that no express promise or undertaking to pay in Galveston county is necessary, and the promise of defendant to ship cotton to plaintiffs at Galveston to cover said account for advances and supplies, made to him by them as cotton factors and commission merchants, and for which this suit is brought, such promise being made before said advances and supplies were furnished* is sufficient, and because said defendant’s knowledge of the custom and understanding at the time that such accounts are payable in Galveston is sufficient. 2. The judgment of the court is contrary to, and unsupported by, the evidence, in that the promise of defendant to, pay in Galveston was fully and sufficiently shown, and there was no evidence to the contrary.
    The suit was instituted in Galveston county, evidently under the fourth exception to the general rule that “ no person who is an inhabitant of this state shall be sued out of the county where he has his domicile ” (Paschal’s Digest, article 1423), as follows: “Except in eases where a person has contracted to perform an obligation in any particular county, in which case suit may be instituted in that county or where the defendant has his domicile.”
    The letter from the defendant to the plaintiffs contained the following proposal, which, as is admitted, was acted on by the plaintiffs in furnishing the supplies and making the advances, the value of which is sued for in this action, and was the basis of the business relations between the parties, viz.: “ I make the following statement of my commercial standing with a view of obtaining $2,000 as advance from you, for which I promise to make you liberal shipments of cotton this coming season, and to reduce and settle off my account at your office in Galveston, Texas, as follows: To reduce to $1,500 by 1st of December, and to reduce to $1,000 by 1st of January, 1879, and to reduce to $500 by 1st of February, 1879, and to settle in full by 15th of March, 1879, and to have an interest account at ten per cent, per annum.”
    • This letter was introduced in evidence by-the plaintiffs; the defendant testified that he never undertook to pay the account in any particular place, the agreement with appellants as to the payment of the money being that it was to be covered by shipments of cotton to be made by him to appellants.
   Opinion.— The determination of this question of venue depends upon what construction shall be placed upon the terms of the contract contained in the letter. The appel- • lant contends that its effect is to oblige the defendant to pay the account that shall be contracted under his proposition to obtain advances and supplies at Galveston. If that construction be the true one it follows that the suit was properly brought in the district court of Galveston county.■ It is insisted upon by the counsel for the appellee that by the defendant’s proposal, contained.in the letter, his agreement was to ship cotton to cover his account and to reduce and settle off his account at Galveston according to the specific terms designated in the letter; and that there could only become an obligation to pay the account through the occurrence of defendant’s failure to ship cotton to reduce his account in the manner indicated in the letter, and that the plaintiffs not relying, by-their pleadings, on such cause" of action based on that state of case, that their action did not lie elsewhere than in the county of the defendant’s domicile.

• The sentence of the defendant’s letter requiring interpretation contains, first, the premises on which is based the promise; which consist, first, in his expressed wish to obtain from the plaintiffs §2,000 as advances; and secondly, to make an exhibit of his affairs as a basis for credit and confidence, viz. : 6b I make the following statements of my commercial standing with a view of obtaining $2,000 as advance from you..” The promise itself, in case the exhibit shall prove satisfactory in effecting his purpose, contains an inducement and a valuable consideration offered, as follows; “ for which I promise to make you liberal shipments of cotton this coming season.” He also promises to pay for the adVances made, not under the vague indeterminate promise to make liberal shipments of cotton to satisfy the anticipated indebtedness, but, on the contrary, specially restricts his liability as to amounts and period of maturity of indebtedness by the designated limitations whereby he obligates himself to reduce the same to certain amounts from time to time, until full payment shall be made, on the 15th day of March, 1879, which is eight months after the date of the letter, and is subsequent to the “season” of the year during which the shipments of cotton were to have been made. The further promise contained in the same sentence, and connected with that part of it which has been just quoted by the word “and,” is as follows: “and to reduce and settle off my account at your office in Galveston, Texas, as follows,” proceeding, as heretofore has been quoted, to state the limitations of his obligation to pay, both as to amounts and time.

Under this interpretation of the contract, whenever there should accrue a right to sue for the price or value of the advances, it is manifest that the plaintiffs would be entitled to elect to sue at “Galveston, Texas.” The reasonable construction of the letter, consistently with that urged by counsel for the appellee, can scarcely otherwise be given, unless by discarding the copulative conjunction “and,” which connects the sentences, but which at the same time divides and distinguishes the proposition made in the sentence. By making such a change the meaning and sense of the sentence will be substantially and materially varied; unless however, such change shall be made, no other than a forced construction can give the sentence a different meaning than that which we place upon it.; especially when the entire letter is read in all its parts, and keeping in view the relative situations and occupations of the contracting parties and the prominent and paramount object intended to be accomplished in making the proposal.

Among the most useful, practical and elementary rules for the construction of contracts is this, stated by Judge Parsons in his treatise on contracts: “So, too, the situation of the parties at the time, and of the property which is the subject-matter of the contract, and the intention and purpose of the parties in making the contract, will often be of great service in guiding the construction, because, as has been said, this intention will be carried into effect so far as the rules of language and the rules of law will permit,” 2 Parsons, Con., 499.

When the writer of the letter employed the terms and expressions used by him, it must be inferred that he must have contemplated their acceptance by the promisee in the sense and with the meaning which our construction has placed upon them; in such case the ethical and the legal rule coincide and are to the effect that a party will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties. Id.

“ Where the terms of the promise admit of more senses than one, and are fairly susceptible of the meaning in which the promisor believed they were understood, and in which they were actually understood by the promisee, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it.” Id., p. 497, note (P). ,

If the language employed in the letter allows of more senses than one, accordingly as it may be punctuated and emphasized (and in the record, it may be remarked, that the sentence contains no punctuation marks whatever), and under one reading may have the meaning given to it which is claimed by the appellee, to the effect that he promised to make liberal shipments of cotton, and through its proceeds, when sold, he would reduce and settle off his account at their office at Galveston, etc.; and under the other, the obligation to pay is construed to have been made separately from that to make shipments of cotton,— if the words used are, and as we think they are, fairly susceptible of conveying to the minds of the plaintiffs the impression, and the defendant believed they must have been so understood, that he proposed to make them liberal advances of cotton in their business as cotton factors and commission merchants, and also to pay for said advances at their office at G-alveston, and that such interpretation must have been given and understood by the plaintiffs, and the defendant must have believed it would be so understood — a belief superinduced not solely from the apparent and natural meaning to be attached to the words of the sentence itself, but alike from their connection and relation to what preceded them, as also to the subsequent limitations made in his, the defendant’s, favor,— then it must be enforced accordingly. By those limitations he impliedly reserved the right to control the proceeds of the shipments of the cotton, at all events, to a qualified extent, by force of the express limitation which he placed upon the time when and the amounts to be paid by him, and the absence of any obligation designating the ratio w’hich the shipments should bear to his expected indebtedness;- and besides, his undertaking to pay (i. <?., “ reduce and settle off ”) was a general one, as distinguished from a promise to pay in specific articles, or out of the proceeds of a designated fund, as, for instance, shipments of cotton.

To obtain accommodation by advances, to be returned or paid on an extension of time to be given to the promisor, was the manifest purpose of the defendant, and his promise “ to reduce and settle off his account ” in the mode and _ manner which was designated was equivalent to negativing an undertaking, in case §2,000 should be advanced to him, to pay more than §1,500 by the 1st of December, and to go on reducing the debt as further stipulated. But we • are not called upon to construe nor do we mean to be understood as authoritatively construing the contract for any other purposes of the litigation than as appears necessary to determine the question of venue. It is therefore sufficient to say on this head that according to the rules of interpretation which we applied to this letter, and upon the concession by the parties in the statement of the case that its terms formed the basis of the transaction between the parties, the plaintiffs rightly brought the suit in Galveston county.

The contract contained in the letter, under the construction we have placed upon it, is at variance with the defendant’s testimony, who testified that he never undertook to pay the account in any particular place; that the agreement with the appellants as to the payment of the money was that it was to be covered by shipments of cotton to be made by him to the appellants. This evidence contradicts the written instrument which it is admitted was the basis of the transaction between the parties, which must prevail over his oral statements construing it. It is not intimated by the witness that any other or different contract was entered into than that which we have "been considering. The construction which the witness .may give as to the legal effect of the writing cannot, of course, properly be confounded with facts in the case.

We conclude, therefore, that the judgment below shall be reversed.