text:
    Harriet E. Smith et als. v. D. H. Redden.
    (Case No. 2823.)
    1. Charge of the court.— It is error to charge the jury upon a hypothesis which has no foundation in the evidence adduced in a cause.
    2. Minors — Special guardian.— Minors could not, under the statute (Pas. Dig., arts. 6969, 6973), sue or defend by next friend. Where there was no regular guardian, the law required the appointment of a special guardian for them. 45 Tex., 550; 50 Tex., 511; id., 302.
    3. Evidence.— Statements of the husband concerning the wife’s separate property, made when she was not present,, are not admissible in evidence against her, in a suit brought by the wife for the property. 8 Tex., 178; 14 Tex., 583.
    4. Tenant — Purchaser in good faith.— A tenant is chargeable with notice of all equities of his lessor in the property leased. He cannot repudiate his tenancy and become an innocent purchaser in good faith, as against his lessor, of property held by him as tenant.
    Appeal from Havarro. Tried below before the Hon. F. P. Wood.
    This suit was instituted on 8th July, 1873, by Harriet E. Smith, surviving widow of John E. Smith, deceased, with her husband, David B. Smith, and Rena A. Smith and Anthony FT. Smith, minors, children of said John and Harriet, suing by their “prochein ami” David B. Smith, against D. H. Redden, for the recovery of a tract of land of four ten-acre lots in FTavarro county.
    The plaintiffs alleged that Harriet, Rena and Anthony were the lawful heirs of John E. Smith, the lawful owner of the land. That'in 1859 John purchased from Wm. M. Love, then the owner of the land, for the price of $440, of which $40 was paid down, and upon the payment of the balance Love agreed to make him a title to the land, and under this agreement John went into possession of the land in good faith and made valuable improvements; that on 25th March, 1863, he made a further payment to Love of $100 on the land, for which Love receipted, expressing therein its purpose. That John and his family resided upon the land until the death of John in 1864. That in 1868 the land was sold under an execution upon a judgment against Wm. M., Love as his property, and purchased by G-. H. Love, the plaintiffs. being then in possession of the land. That plaintiffs rented the land to defendant Redden for the year 1869, and he went into possession of .it as their tenant. That afterwards, with full knowledge of their rights and claim, Redden purchased the land from Wm. H. Love, who, as attorney in fact for G-. H. Love, executed to him a conveyance of it, and then Redden repudiated his tenancy, and held and still holds the land adversely to plaintiffs. They pray for a writ of possession, and tendering $340 and interest, which they allege is the balance due on „the land, ask that they have judgment for the land and specific performance.
    The defendant answered, denying the allegations of. the petition, pleading the limitation of three years, suggesting valuable improvements made by him, to the value of $1,000, and praying judgment.
    The cause was submitted to a jury, who returned a verdict for the defendant, and judgment was rendered in accordance therewith.
    The plaintiffs moved for a new trial, which being overruled, they appealed.
    Upon the trial, the facts as set out in the plaintiffs’ petition were supported substantially by the plaintiffs’ witnesses. The agreement with Love for the purchase of the land, the possession of it by Smith and his family, and the improvements made by him, and the payment to Love of $40 in a yoke of oxen, were proved. Smith joined the army in 1862, taking his wife and children to her father, and renting out the land. In 1863 Smith sent $100 to a witness, to be paid to Love on the land, for which Love receipted; the receipt was lost, but its contents were proven as follows: “Received of John Smith $100, a part payment on forty acres of land.” Signed by Love. Smith was killed in battle in 1864. In 1865 Harriet and the children moved back on the land, and continued in possession of the premises till 1868, when it was rented to Redden. Harriet Smith married D. B. Smith in 1867. The improvements put on the land by John Smith were worth $500. The plaintiffs proved by three witnesses that they had seen and examined the receipt given by Love to Smith, and Love’s signature to it to be genuine; and that it recited it was in part payment for the land. It was also proved that Redden had been informed, xvhen he rented the land, of John Smith’s purchase. Plaintiffs then tendered in court the balance due on the purchase money.
    Defendant then gave in evidence a judgment in ffavor of Sorley, Smith & Co. against Wm. ¡M. Love, recorded in ¡Navarro county in 1867, and a deed from the constable to Gr. H. Love, for land sold under the judgment and execution, which embraces the land in controversy, dated 15th December, 1868; also a deed to himself from G-. H. Love, by his attorney in fact, Wm. M. Love, for fifty acres of land, including this land, dated 14th April, 1869.
    Redden testified that Wm. M. Love told him plaintiffs had no title to the land, and that he must pay rents to him; that Smith had never paid anything for the land, and that D. B. Smith had referred him to Wm. M. Love for information respecting the title to the land.
    Williamson, a xvitness for the defendant, testified that in the spring of 1862 he heard John E. Smith tell William M. Love, as he was about leaving for the army, that he was not able to pay him for the land, and that he would let him have it back with the improvements, xvhich xvould pay him for the rent; that William Love agreed to take the land back, stating that he could have it xvhen he came back, and should be able to pay for it. This xvitness also testified that the yoke of oxen was not a payment on the land.
    It was also proven thát D. B. Smith bid for the land at the constable’s sale.
    D. B. Smith testified that he never referred Redden to William ¡M. Love for information in regard to the title to the land. William ¡M. Love died in 1873.
    These are the material facts developed in the testimony.
    It is shoxvn by bills of exceptions that plaintiffs objected to the introduction of proof of the statements of William M. Love, about the title to the land, not made in presence of the plaintiffs, and also excepted to the proof that D. B. Smith referred Eedden to Love for information; but these objections were overruled.

      Sam, B. Frost, for appellants.

      William, Croft, for appellee.
   Quinan, J.

The charges'given by the judge are voluminous, and it is not necessary to recite them all.

Among others, he gave the following, which are excepted to:

No. 2. If the jury believe from the evidence that the defendant was a purchaser in good faith, and paid his money for the land after being informed by the person or persons to whom he was referred, that William M. Love was the one to buy from, and who could tell him about the title, then the jury will find for the defendant.

No. 4. A receipt for a part payment on land in Confederate money is not notice to other parties knowing nothing of its contents, unless the same has been duly recorded; and if the jury should believe from the evidence that there was no other payment made, then such payment could effect no one having no notice of it, and the jury will find for the defendant, if he had no notice of it proved upon him.

There are nine assignments of error, of which, however, it will only be necessary to notice the second, fourth, fifth and sixth.

The second assignment of error is that the court erred in its second charge to the jury.

The fourth, that the court erred in its fourth charge to the jury.

The fifth and sixth relate to the admission of the testimony, over the objections of the plaintiffs, that David B. Smith referred Eedden to Love for information in respect to the title, and to the statements of William M. Love.

The second assignment of error is well taken. It was manifestly erroneous to instruct the jury, as in effect they are instructed, that David B. Smith, by referring Eedden to Love for information, and by Love’s statement to Redden, “ that he was the one to buy from,” warranted the jury in finding a verdict for the defendants if they believed Redden bought in good faith and paid his money for the land. It is quite too clear for comment that what David Smith did, or what Love said, not in the presence or hearing of Harriet or her children, could not in the least degree affect their title to the land.

The fourth charge is equally erroneous — that the jury should find for the defendant if he had no notice proved upon him of the receipt for a part payment on the land in Confederate money,' and that no other payment had been made. It is not proper to charge upon a hypothesis which has no foundation in the evidence. Earle v. Thomas, 14 Tex., 583. Indeed, it is not easy to discover upon what ground these charges were given. Redden could not possibly be a purchaser of the land without notice. Hndeniably it had been in the undisputed possession of the plaintiffs for years. They had rented it to him and put him in possession. He was chargeable with notice of every fact he might have discovered by applying to the parties in possession. And the testimony, uncontradicted, of the witness Petty is, that before Redden rented the place he was informed that “John E. Smith in his life-time had purchased the land from Love, had paid part of the purchase money, and that the land had been occupied by Smith and tenants under him since his purchase, to the time of Redden’s renting. Wade on Notice, p. 116, and cases cited, note 1.

The admission of the testimony of what David Smith said or did, or as to the statements of Love in respect to the title, not made in the presence of the plaintiffs, Harriet or her children, was error. These were clearly “res inter alios aetaP David Smith could say or do nothing to impair the title of Mrs. Smith or her children. Nor could the information in disparagement of it by Love, communicated to Redden, have the slightest weight. It was of itself worthless, and Redden had already been better informed, and had better means of knowledge.

[Opinion delivered May 31, 1880.]

For these errors of the judge in his charge, and the admission of incompetent testimony, the judgment must be reversed.

But there is also another fundamental error which, though not assigned, will require -a reversal of the judgment.

The minors plaintiff are not represented by their guardian, either regular or special.

When this suit was instituted, minors could only sue, or defend, by their guardian. If there were no regular guardian the law required the appointment of a special guardian for them. Pas. Dig., arts. 6969, 6973.

And so it has been repeatedly decided. Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, 50 Tex., 302.

At the present term of the supreme court, in Brooke v. Clark, it is again so held, in a case where judgment was rendered in favor of a minor suing by a next friend. In this case the court says: “ This determination has not been reached without due regard to the fact that in this particular case it may materially affect the rights of the plaintiff. That the law should be thus held, however, would perhaps not be severely questioned had the minor plaintiff failed in the action.”

The judgment is reversed and the cause remanded. <

Beversed and remanded.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    J. L. Dean, Ex’r, v. Thos. M. Hudson et al.
    (Case No. 3033.)
    1. Vendor’s lien.— Where a note is given for part of the purchase price for land, it has a valid lien thereon to secure its payment. It is said to be a natural equity that the land shall stand charged with so much of the purchase money as remains unpaid. Flanagan v. Cushman, 48 Tex., 344.

      2. Notice — Becitals in deed.—Where the note is recited in the deed all persons claiming under the vendee are chargeable with notice . of it. They are bound to know whatever facts are recited in the conveyances which form apart of their chain of" title. Willis v. Gay, 48 Tex., 463.
    8. Vendor’s lien—Waiver — Burden of proof.— It is not evidence of a waiver of the vendor’s lien that the conveyance recites that the note was received as cash, especially if it is described in the deed as due one day after date. The burden of proof is upon the party asserting a waiver, to show that the vendor’s lien has been waived. Irvin v. Garner, 50 Tex., 54.

      4. Taking new note — Additional security — Not waiver of vendor’s lien.—Where the purchase money is unpaid, giving a new note by the debtor to the vendor in renewal of the purchase money note, or giving a note to a third party, including therein interest on- the old note, and commissions for advancing the money to take it up, or additional security taken subsequently, or a mortgage, or a mere change in the form of the security to secure it, will not of itself divest the lien unless so intended. Ellis v. Singletary, 45 Tex., 27.
    5. Purchase money note only evidence of the debt—Vendor’s lien THE security for its payment.—The vendor’s lien is a security for the debt of which a purchase money note is the evidence, and it subsists until the debt is paid, or the lien discharged by a valid agreement therefor. Robertson v. Guerin, 50 Tex., 317.
    6. Different holders of purchase money notes on same land have equal rights.—Where several notes given for the purchase • money of the same land are in the hands of different parties, they have equal rights to satisfaction out of the land, and the holder of y the last note due is not precluded from enforcing his lien against ■ the land by a foreclosure and sale in a proceeding to which he was not a party, brought by the holder of the note which was the first to mature. McDonough v. Cross, 40 Tex., 251; Delespine v. Campbell, 45 Tex., 628.
    Appeal from Burleson. • Tried below before the Hon. A.' S. Broaddus.
    This suit was instituted by B. W. Dean against the widow and children, as sole heirs, of one Parnell, deceased, representing that he held a note made by Parnell to one Matthews for part of the purchase money of a tract of one hundred and fifty-six acres of land sold by Matthews to Parnell; that the said Parnell left no property but exempt property; that Matthews indorsed the note to him, and praying a foreclosure of the vendor’s lien upon the land for the payment of the note. Ho personal judgment against the defendants is asked. The defendants answered the general denial and pleading payment. The plaintiff dying, his executor, James L. Dean, was made party plaintiff.
    Special guardians were duly appointed for the minor defendants.
    The widow Parnell marryitig again, her husband, Sylvan Morris, was made party defendant with her. In an amended petition plaintiff set up that, for the purchase money of the land, Parnell executed two notes to Matthews, both of which were secured by a lien on the land; that Thomas F. Hudson is the owner of the second note, and sued upon it, and recovered judgment upon it and a decree for the foreclosure of the vendor’s lien; that Hudson had notice of plaintiff’s note, and that it is entitled to a priority of payment.
    Hudson being made party answered that the note sued on was paid; that Dean had waived his lien upon the land; that he had advanced to Matthews the money for Parnell to pay the note, and charged it in his account with Parnell, and on settlement took a new note from Parnell for a large amount in full of his debt, and that this last note was paid ; that the money advanced to Matthews was an advance on Parnell’s cotton crop, and was p$id out of the sale of it; that he, Hudson, at a sale under the judgment and foreclosure in his suit, had purchased the land, was now the owner of it, and denied that he had any notice of plaintiff’s lien.
    The cause was submitted to the judge for trial, a jury being'waived, and judgment was rendered for the defendants, from which the plaintiff appealed.
    A bill of exceptions was taken to the action of the court in rendering judgment for the defendants, and is signed by the judge.
    It recites: “.It appearing to the court, after hearing all the evidence, that the note sued on is a valid outstanding claim and vendor’s lien against the land; that the same was never paid except as to the credits indorsed on it, and that plaintiff would be entitled to a foreclosure of his vendor’s lien but for the judgment in favor of Hudson and the sale thereunder, in the opinion of the court the plaintiff is concluded by that judgment and sale in favor of Hudson, notwithstanding plaintiff nor his intestate was party to said suit.”
    The plaintiff assigns for error that the court rendered judgment against plaintiff after finding the facts in his favor.
    Upon the trial the material facts proven were as follows:
    The plaintiff read the note sued on as follows:
    “$500.
    “ One day after date I promise to pay William Matthews five hundred dollars in American gold coin for value received, it being for a tract of one hundred and fifty-six acres of land out of the Francisco Ruiz league of land, on Davidson’s creek, in Burleson county, this the 27th September, 1869. J. H. Parnell.
    “Indorsed on the back: Interest paid to March 3, 1870. Or. by cash, March 20, ’72, $189.19. R. W. Dean.
    “ Wm. Matthews.”
    The plaintiff read in evidence the deed from Matthews to Parnell for the land dated 27th September, 1869. The consideration recited in it is $1,000 “ to me paid, the receipt of which is acknowledged in the following way and manner: by his promissory note for $500 as cash down, bearing even date xvith this deed of conveyance, and due one day after date, and his other promissory note,for the further sum of $5, bearing even date with this deed of conveyance, due and payable on the 25th day of December, 1870, drawing ten per cent, interest from date per annum until paid.”
    The defendant read in evidence the judgment, in the suit of Hudson v. Parnell, by default rendered December 8,1873, for the sum of $388.01, and decree of foreclosure of the vend- or’s lien upon the land in controversy upon the note dated 27th December, 1869.
    Under this judgment Hudson purchased the land on the -March, 1874.
    Rust, a witness for the defendant, testified that he was present when Dean paid Matthews for the note sued on, and that it was understood by Dean and Parnell that Dean should hold the note as a lien on the homestead.
    In Dean’s mercantile books, kept by witness, in the account of Parnell, is debited “Cash paid Matthews, $500. Two and one-half per cent, for advancing, entered 23d December, 1869,” and a credit “By note in full, $684.56, March 3, 1870.”
    Dean’s account with Parnell was also shown, which showed this balance, closed by note of March 3, B. W. Dean. The note for $684.56 was introduced, upon which is indorsed “Cr., by your note $500 executed to Wm. Matthews, 27th September, 1869.”
    Paid from proceeds of cotton sold March 20, 1872.
    Mclver, for the plaintiff, testified to statements of Parnell in the fall of 1871 that he owed Dean upon his land •more than he could pay that year, besides an account.
    The above is the substance of the proof.

      Sayles dk Bassett and Be Wit G. Booth, for appellant.

      J. B. Thomas, for appellees.
   Quinan, J.

Upon the statement already given, which embraces the material facts developed by the trial, in a condensed form, we are of opinion— ■

1. That the note upon which the suit was brought having been given for part of the purchase money of the land mentioned in it, had a valid vendor’s lien thereon to secure its payment. “ It is said to be a natural equity that the land shall stand charged with so much of the purchase money as remains unpaid.” Flanagan v. Cushman, 48 Tex., 244.

2. This note being recited in the deed for the land from: Matthews to Parnell, all persons claiming under Parnell are-' chargeable with notice of it. They are bound to know, whatever facts are recited in the conveyances which form .a part of their chain of title. Wood on Notice, 134; Willis v. Gay, 48 Tex., 463.

3. It was not evidence of a waiver of the lien that .the conveyance recited that the note was received as cash down. It described the nóte particularly as due one day after date, and conveyed direct information that in point of fact the payment then had not been made. And the note itself recites the consideration. These facts show that it was not intended that the lien should be released. It attached to the note as a matter of course, and the burden of proof was upon the defendants to show that it had been expressly or impliedly waived. Irvin v. Garner, 50 Tex., 54.

4. The transfer of this note by Matthews to Dean carried with it the security for its payment. Flanagan v. Cushman, 48 Tex., 244; Cordova v. Hood, 17 Wall., 1. There is nothing in the circumstances of that transaction to support the appellee’s proposition, that the payment by Dean to Matthews of the $500 was intended as a payment of the note and discharge of the lien. On the contrary, the fa'cts are all the other way. The note was indorsed and delivered-to Dean by Matthews. It was the money of Dean which was paid to Matthews, and the note did not pass into the possession of Parnell at any time, but was retained by Dean as a lien upon the land, and so understood by Dean and Parnell at the time. Mor does it prove that the hen of the note was waived or intended to be waived; that Dean took it up at Parnell’s request, or that Parnell was to pay commission for Dean’s advancing the money to Matthews, or that Dean in his mercantile books charged up the amount in Parnell’s account, or that he ever took a new note, including the amount with interest and commission, upon which this note is indorsed as a credit.

The manner in which Dean kept his books, showing the state of his account with Parnell — his charging this note in that account with other items, or taking a larger note, in which the amount of money paid Matthews is included with other sums—are circumstances of little significance tó prove an agreement to release so large a benefit as this lien for the purchase money on the land. The controlling fact still remains, that Matthews indorsed the note to Dean, who continued to hold it; that Parnell continued to recognize it as a debt and lien upon his land; that both parties so understood it; that the purchase money remained unpaid.

So it has often been held that a new note given in renewal of the purchase money note, or additional security taken subsequently, or a mortgage or a mere change of the form of the security to secure it, will not, of itself, divest the lien unless so intended. Irwin v. Garner, 50 Tex., 54; Ellis v. Singletary, 45 Tex., 27. The lien is a security for the purchase money. It is not merely a security for the note, but for the debt, of which the note is merely the evidence. Cushman v. Flanagan, 48 Tex., 245. And it subsists until the debt is paid, or the lien discharged by a valid agreement therefor. Robertson v. Guerin, 50 Tex., 317.

Hor was the right of the plaintiff to enforce the lien periled; nor was he precluded from asserting it by the judgment and sale had in the proceedings by Hudson in his suit upon the second note given for the purchase money of the same land. Hot being a party to that suit, it is very clear he was in no way affected by it. McDonough v. Cross, 40 Tex., 251; Delespine v. Campbell, 45 Tex., 628; Robertson v. Guerin, 50 Tex., 324.

The judgment of the district court was therefore erroneous. We concur in the findings of the judge as to the facts, but in his views of the law we do not concur. Both parties seem to have formed erroneous views of their rights, the plaintiff insisting that as the note upon which he sues first became due he has the prior right, and Hudson, that by liis diligence in first obtaining judgment and enforcing his lien he has acquired a priority. The law is now settled otherwise. The several notes given for the purchase money of the same land in the hands of different parties have equal rights to satisfaction out of the land. Robertson v. Guerin, 50 Tex., 324; Delespine v. Campbell, 45 Tex., 628; Ellis v. Singletary, 45 Tex., 27.

Dean and Hudson are entitled to share pro rata in the proceeds of the sale of it on foreclosure.

As this suit has been pending for so great a length of time, and it is fit there should be an end of litigation, and as the cause was submitted to the judge below upon the law and facts, and as all the necessary proofs and the proper parties are made in the case, there is no propriety in sending the case back for another trial, but such judgment should be rendered here as ought to have been rendered in the court below.

We conclude, therefore, that the judgment be reversed, and rendered in accordance with this opinion.

That the note upon which this suit is brought is a valid lien upon the land described in the petition, and that the plaintiff is entitled to have satisfaction of the same out of the said land.

The amount due upon said note is the sum of $391.36, with interest at the rate of eight per cent, per annum from March 20,1872. 0

There is also due upon the second note for the purchase money of the same land held by the defendant Hudson, and upon which he recovered judgment, and an order of sale, under which he purchased the land, and holds the legal title to the same, the sum of $388.01, with interest at the rate of ten per cent, per annum from the date of the rendition of the judgment, December 8,1873, and this also is' a valid lien upon the land, and Hudson entitled to have satisfaction of the same out of said land. ,

Hudson having purchased the land, and the legal title to the same being in him, is entitled to redeem the same, and time will be given him until the 1st day of Uovembernext to pay to plaintiff the full amount of his note and interest as aforesaid, and the costs of this suit.

If Hudson fails so to do, then that the lien upon the said land be foreclosed, and that he be forever barred of any equity of redemption therein; and an order of sale will issue to the sheriff of-county to sell the land as under execution, and out of the proceeds of the sale to satisfy and pay off the debt to plaintiff, if the same shall be enough to satisfy the debt of plaintiff and Hudson both, and if not, to divide the proceeds pro rata between them. If the proceeds should be more than sufficient to satisfy the claims of plaintiff and Hudson, the excess, after the payment of plaintiff’s claim, to be paid to Hudson. The costs to be paid by Hudson.

[Opinion delivered May 31, 1880.]

And we so award.

.Reversed and rendered.


author: A. S. Walker, J.

text:
    R. A. Brown v. Jno. A. Mitchell et al.
    (Case No. 3332.)
    1. Intervenor—Practice.—An intervenor, by making himself a party to secure his interest in property involved in litigation between a plaintiff and defendant, in making defense of his own right can plead and prove anything which can or will be a defense to the plaintiff’s case, so far as it might affect his (mtervenor’s) own claim. He does not, however, become the protec-tor of the defendant, nor can the defendant derive any aid in his own case beyond what may be brought into it supported by his own defense, as made in his answer.
    2. Pleadings — Intervenor.— If the defendant’s pleadings do -not admit of evidence of payment or satisfaction of the note sued on, ho cannot defend or receive the benefit of such defense made by the intervenor, but the intervenor’s rights cannot be injured by the defendant’s conduct of his own defense; and a plea by the intervenor that the defendant had, “on November 1, 1874, fully accounted with the plaintiff, and settled and fully discharged the note on which plaintiff brings this suit to the full satisfaction of plaintiff, and any cause of action or right or lien that may ever have existed between plaintiff and defendant, by and under said note,” was sufficient to admit evidence of satisfaction, and sustaining exceptions thereto was erroneous.
    8. Practice in supreme court.—An error corrected by the judge below will not on appeal be presumed to have been injurious and cannot be revised, unless injury is shown to have resulted therefrom.
    4. Error as to one defendant reverses as to all.—Error in the judgment as to one- defendant is ground for reversing the entire judgment.
    Appeal from Robertson. Tried below before the Hon. John B. Rector.

      This suit was brought on the 11th of May, 1874, by B. A. Brown, against John A. Mitchell, on a note secured by a mortgage upon certain mules and other property described' in the petition. On the 9th of June, 1874, L. K. Preston intervened in the suit, alleging in his petition of intervention that he held a valid and subsisting mortgage lien upon the same property, executed to him by Mitchell subsequent to the execution of the mortgage of plaintiff; that, on the 1st of [November, 1874, subsequent to the accrual of plaintiff’s cause of action, the defendant Mitchell fully accounted with plaintiff, and fully discharged the note sued on, and the mortgage lien thereon; that, in the institution of this suit, plaintiff and defendant had combined, in fraud, covin and collusion, to deprive intervenor of his lien upon the property, by asserting, under plaintiff’s mortgage, a false, fraudulent and pretended lien on said property, well knowing that plaintiff had no lien thereon; thereby attempting to deprive and defraud intervenor of his lien.
    Previous to the institution of. this suit, the intervenor, Preston, had, on the 23d of April, 1874, brought suit in the district court of Bobertson county against the defendant John A. Mitchell, in cause No. 2126, upon his note, and to foreclose his mortgage lien upon the property.
    Afterwards, on the 24th of July, 1874, Preston recovered a judgment against Mitchell in cause No. 2126, foreclosing his lien on the property in suit.
    On the 22d of August, 1874, B. A. Brown instituted a suit for, and obtained an injunction against Mitchell, Preston and the sheriff, in cause No. 2186, in the district court of Bobertson county, restraining the sheriff and Preston from further proceeding under an order of sale which had been issued under the judgment in cause No. 2126.
    On the 28th of July, 1875, this cause and the injunction suit, No. 2186, were consolidated, and the parties went to trial.
    The court instructed the jury:
    1st. That they would find for the plaintiff the amount of the note sued on and interest, and that the same was secured by a mortgage lien on all of the property mentioned in plaintiff’s mortgage dated December 20, 1871, except the crops to be raised, unless said note has been paid or discharged by defendant Mitchell.

    2d. If the jury believe that Col. Herndon was the general agent of plaintiff Brown, and, acting within the scope of his authority from Brown, made an arrangement with Mitchell, by which Mitchell surrendered to Herndon, as the agent of Brown, a two years’ lease on Brown’s plantation, in consideration of which Herndon agreed that Mitchell should be held harmless on the note on which he is now sued, the plaintiff’s note is extinguished and the jury will find for the defendant.
    And you will further find that intervener Preston has a lien upon the property in controversy, being the same described in his judgment introduced in evidence and in plaintiff’s petition. If, however, Herndon made no agreement with Mitchell, as the agent of and for Brown, that Mitchell should be held harmless on the note sued on; if, in fact, Herndon’s proposition to Mitchell was that the excess of the note sued on that might not be covered and discharged by the .property mortgaged to secure said note should be released to Mitchell, then you will find for plaintiff as indicated in instruction Ho. 1.
    3d. And, again, though you should find that Herndon was a general agent of Brown to transact his business in Robertson county, yet you are still called on to say whether it was within the scope of Herndon’s authority to extinguish the note sued on in consideration of a surrender to him for Brown of the latter’s plantation two years before the expiration of Mitchell’s lease of said land, if he, Herndon, made such an arrangement with Mitchell.
    4th. Was an instruction as to agency, etc.
    5th. Application to the facts in evidence.
    The plaintiff read in evidence note of defendant, Mitchell, of date December 20, 1871, and' due twelve months, for $1,523.20 gold, with ten per cent, interest from date, the note reciting “ the same being for the purchase money of corn and farming implements, for which the said Brown now holds a crop lien. But in the event of failure of crop, the said $1,523.20, gold, is to be extended another twelve months, at the same rate of interest (say ten per cent, interest),” 'with credits indorsed.
    Also another of same date, by same to same, for $1,600 gold,- with ten per cent, interest, reciting “ the same being the purchase money of sixteen mules, which the said Brown now holds a lien upon.”
    There was also in evidence mortgage of same date, December 20, 1871, by Mitchell, reciting indebtedness of $3,123.20 gold, evidenced by two notes, reciting as consideration that in both notes were for sixteen mules, two wagons, two thousand four hundred bushels corn, all farming implements on plantation, and also making a preferred lien or claim on his crop. Beoorded February 2, 1872.
    The intervenor proved his mortgage upon the sixteen mules and the wagons, by Mitchell to him, Preston, of date February 23, 1S73, and recorded 8th March, 1873, to secure advances for supplies, not to exceed $1,200, and a note for $257.
    It was in evidence that Herndon, the father-in-law and agent of Brown, prior to the execution of Mitchell’s mortgage to Preston, had proposed to Mitchell to keep him harmless on the first note, $1,523.20, on his surrendering a, two years’ lease on Brown’s plantation, by a fixed time. There was conflict between Herndon and Brown, in their testimony as to the compliance with the offer. Brown testified that he had surrendered the lease and delivered a flatboat to Herndon, in satisfaction of, or on Herndon’s assurance of protection from the “ provisions ” note — that sued on. There was testimony that Preston, before making advancements and taking his mortgage, had consulted with Herndon and had become satisfied that the Brown mortgage has been satisfied or surrendered. Mitchell, on the trial, produced the $1,600 note which had been paid. Herndon’s declarations, as testified to by himself, by Mitchell and others, after having been admitted, were by the court withdrawn. The proceedings in the injunction suit were read in evidence, and Preston’s prior" judgment on his mortgage.
    After the close of the testimony of the intervener, plaintiff proposed to testify to matters connected with Preston’s mortgage, and his testimony was excluded because not in rebuttal. The power of attorney from Brown to Herndon was not produced, and the testimony to its extent was conflicting.
    The jury found a verdict for the defendant, Mitchell, and for Preston, on his intervention." Judgment was rendered accordingly.
    Motion for new trial, based upon the rulings of the court, its charge and on the verdict, was overruled, and Brown appealed.
    He assigned errors as follows:
    Judgment against plaintiff in favor of Mitchell, contrary to law and evidence.
    1. The court erred in excluding the testimony of E. A. Brown, as shown by bill of exceptions.
    2. In admitting evidence objected to by counsel for plaintiff, as shown by bill of exceptions.
    3. In the second division" and part of the charge to the jury.
    4. In the third division and part of the charge to the jury-
    5. In the fourth division of the instructions to the jury.
    6. In the fifth part and division of the charge.
    7 and 8. Verdict contrary to evidence and the law.

      Wm. U. Hammam,, for appellant.

      Mavis, Beall c& Kemp, for appellee.
   A. S. Walker, J.

The errors are discussed in groups as follows, by counsel for appellants, which are sufficiently indicated by the assignment of errors:

1. That the defendant Mitchell, having filed only a general denial, no evidence was admissible in his favor to defeat a recovery .against him.

2. That there was no evidence under the intervenor’s allegation of fraud to warrant the verdict and judgment.

3. That intervenor’s plea of account, settlement and discharge of the note is a nullity, and interposes no defense.

4. That great injustice was done plaintiff by first admitting in evidence the declarations of Herndon against the plaintiff and then withdrawing them from the jury.

In the proceedings no very distinct separation was made between the rights of the defendant Mitchell, and the intervenor Preston.

The object of Preston in making himself a party was to secure his own rights in the property involved in the litigation between the original parties. To make defense of his own rights he could plead and prove anything which he could, which wpuld be a defense to the plaintiff’s case, so far as it might affect his (intervenor’s) own claims. He did not become the protector of Mitchell. Nor could Mitchell derive any aid in his own case beyond what might be brought into it, and supporting his own defense as made in his answer.

If Mitchell for any reason could not,- or would not, defend the action of the plaintiff, then plaintiff became entitled to all the consequences of Mitchell’s action or non-action. If Mitchell’s pleadings did not admit of evidence of payment or satisfaction of. the note, he could not defend nor receive the benefit of such defense, based on payment made by intervenor. Brown, on producing his note and mortgage declared on, in the condition of Mitchell’s pleadings, was as against him as much entitled to judgment as if Mitchell had confessed judgment.

But while such would result as to Mitchell’s case, the rights of Preston could not be injured by Mitchell’s conduct of his own defense.

The pleadings of Preston, as originally filed, and the general amendment, not excepted to, that “Mitchell had, November 1, 1874, fully accounted with plaintiff, and settled and fully discharged the note on which plaintiff brings this suit, to the full satisfaction of plaintiff, and any cause of action, or right or lien that may ever have existed between plaintiff and defendant, by and under said note,” were sufficient to admit the testimony offered by him, showing the satisfaction as to the note and lien to which his testimony was directed. Much o£ the testimony was in the nature of facts in estoppel from Herndon’s acts and declarations. The declarations, which were subsequently withdrawn, were particularly damaging to the plaintiff’s case, had they not been withdrawn.

[Opinion delivered January 25, 1881.]

There was evidence on which the jury may have found for Preston as against the enforcement of Brown’s lien against the property mortgaged to him.

The court, on appeal, cannot ordinarily revise the act of the court below, in admitting improper testimony, when the court below withdrew the evidence from the jury. If injury were shown to have resulted, it might be considered. But an error, corrected by the judge below, will not be presumed to have been injurious.

Inasmuch as an error in the judgment as to one defendant is ground of reversal as to the entire judgment, and the more so when the error is in favor of the principal or only proper defendant, the erroneous finding against plaintiff on his note on Mitchell will require a reversal. Robinson v. Schmidt, 48 Tex., 19; Acklin v. Paschal, 48 Tex., 177.

We hold:

1. That intervenor’s plea was sufficient to maintain his • action against Brown.

2. That there is not sufficient error in the finding of the jury, as between Brown and Preston, to require a reversal.

3. That there is not shown any damage resulting to the plaintiff from the erroneous admission of Herndon’s declarations, afterwards withdrawn, to require a reversal. But

4. Because of the erroneous verdict and judgment against Brown, as to Mitchell, the principal defendant, the case should be reversed.

Reversed and Remanded.


text:
    R. S. Simpson, Adm’r, v. Fannie Gregg et als.
    (Case No. 3232.)
    1. Community property — Partnership.— The death of the wife vests in her heirs, at once, her interest in community property, but does not dissolve a partnership of which her husband is a member, in a business in which the community property is invested; and if the firm continue to hold arid use the community property, they are liable to the wife’s heirs for the hire and rents of the property to the extent of the interest of such heirs therein; but the firm being called to account to the heirs for the use of the property, they are entitled to all legal and equitable offsets and credits.

      2. Homestead — Partnership — Parent - and child — Account.— Where a father, who is a member of a firm, has no estate or income outside of partnership property, the firm cannot be charged with the maintenance or education of his children, and the firm, as trustees of the children’s property, would be justified in making an allowance sufficient for their proper support and education, and to be credited with such allowance on a settlement of the trust estate. The father, if he so elects, may hold and claim his homestead interest in the firm property, and the firm would not be chargeable with rents to that extent in a settlement with the heirs of the mother, but in such event the father would be bound to support his children, and the firm could not claim a credit for money spent for such children’s education and support.
    Appeal from Burleson. Tried below before the Hon. A. S. Broaddus. 0
    Appellees, as children and heirs of Amanda Grant, sued the administrators of W. F. & J. F. Grant, alleging that their mother was the wife of J. F. Grant. That she died October 25, 1855; that no administration was had on her estate. At her death, and for a long time before, W. F. & J. F. Grant were partners in farming and stock-raising under the firm name of W. F. & J. F. Grant. As such partners thejr owned and cultivated three hundred and afterward four hundred and sixty acres of land, and owned and used in jSuch cultivation five slaves, all acquired during 'the subsistence of the marriage between J. F. and Amanda; and appellees, in right of their mother, became the owners of one-half of J. F.’s interest, or one-fourth of such land and slaves, upon the death of their mother. That their mother had •three slaves, her separate property, which descended to appellees, subject to their father’s life estate to one-third in them. Appellees further allege that said firm cultivated said.land and appropriated the profits thereof, from the death of said Amanda, October 25, 1855, till the death of W. F. Grant, November, 1871, and likewise the hire of the slaves. And J. F. Grant, as surviving partner, did the same till his death, July 13, 1872. In exhibit to petition, the rent is charged to October 25, 1871, and hire of slaves to 25th of October, 18G5, with annual interest added to both at eight per cent., making the sum claimed §19,760. Appellees say their claim was presented to the representative of each estate February 12, 1873, and rejected by W. F.’s administrator, and not accepted by J. F.’s. The}7 sue April 12, 1873.
    There was no defense for the estate of J. F. Grant. Simpson, administrator of W. F. Grant, demurred generally to the petition, and specially excepted the statute of limitatiotis. The statute was also pleaded. To which -plea it- is replied that plaintiff W. F. Grant, Jr., was born April 1, 1848, and plaintiff Fannie Gregg February 14, 1850, and married in 1866; marriage still subsisting.
    Simpson also pleaded that J. F. Grant was a joint owner with appellees of the land and slaves, and lawfully in possession in that character, with the right to use and collect rents and hire as against W. F. Grant. That he placed the interest he so controlled as joint owner or coparcener, in the firm, against similar amounts so placed by W. F. Grant, and in that manner he was paid by W. F. Grant for both the rents and hire, as far as the same were a charge against W. F. So W. F., having once paid such charge to one entitled to collect it, is no more chargeable with it. And further, that all the property in which Amanda had a community interest was partnership property at the time of her death; had been purchased with funds of the firm for firm purposes. So whatever interest she took was subject to the rights of the firm. That the firm debts must be extinguished before Amanda or her children could have any rights in the assets of the firm. But the assets were insufficient to pay the firm liabilities, and appellees could take nothing. Simpson also pleaded that J. F. Grant was to the time of his death the head of a family, occupying the land in question as a homestead, having no other, and using it for the benefit of appellees, his minor children, and was not, therefore, answerable to- his children for the rents. He also pleaded amounts spent by the firm in education and maintenance of appellees. Value of improvements on land, of which appellees have their part in the partition of lands, and to all of which W. F. Grant contributed.
    The court, after stating the plaintiffs’ case as to the defenses, charged the general law of limitation of two years, and that in absence of testimony showing when letters of administration were gran ted, twelve months additional would be allowed, and if claim was presented within three years after March 30,1870, and rejected, and that suit thereon had been brought, the claim would not be barred.
    The constitutional provisions in constitution of 1869 were, given.
    ■ As to defense of expenses of maintenance, etc., “ a father is bound to educate and support his minor children, and cannot tax the cost thereof against the proceeds of their property in his hands.”
    ' “Where a parent or an uncle, or both, bestow an education or support upon children, or nephews and nieces, the law will not raise a presumption, as it would between strangers, that such expenses are to be reimbursed. And where -the children, or nephews and nieces, are minors, the law conclusively presumes that such expenses were a gratuity bestowed upon them, and will not permit a recovery therefor, nor permit it to be set off against a debt due the minors from such parent and uncle.”
    “ So that, even, if you should believe from the evidence that the plaintiffs were educated and supported while they were minors by their father and uncle, these last could not charge up the expense of such education and maintenance against them, nor set it off against any indebtedness on their part to the plaintiffs.”

      . . . “ That it was no defense to the estate of W. F. Grant against such claim that he considered or dealt with the property as if it belonged to J. F. Grant (father of plaintiffs). He was bound to account to the real owners for the rents and hire.”
    “ In reference to the. defense against rents, based on the ground of J. F. Grant’s alleged right to a homestead of two hundred acres, including improvements, you are instructed that under the pleadings and proof the defendant Simpson is not entitled to set up such defense.”
    . . . “ In reference to the claim for value of improvements put by the said W. F. and J. F. Grant upon the common lands of the plaintiffs and themselves, by which it is said that the lands subsequently decreed to plaintiffs were enhanced in value, you are instructed: (1) If such improvements were made with money or property, or its proceeds, in which the plaintiffs had an interest, and that their interest in such money and property, unaccounted for by the Grants and not sued for in this suit, equaled or exceeded the enhanced value of their share of the lands by reason of such improvements, then the defendants are not entitled to any deduction on that account. (2) A trustee is held to the strictest liability in his dealings with the parties for whom he holds, and the burden of proving all the facts on which his right depends, and of excluding every reasonable hypothesis to the contrary, is thrown upon him and those claiming under him.”
    (3) “ So that, if, under the rules already laid down, W. F. and J. F. Grant were trustees for the plaintiffs, the presumptions will be against them in their dealings with the trust property, and they, and those who represent them in this suit, are put to the burden of proving beyond any reasonable doubt that the property was improved with their own money, and that the plaintiffs had no interest in it; and, in the absence of such convincing proof, you will find, as to this issue, against the defendants.”
    The jury were allowed to find a parol purchase, during the life-time of their mother, of thirty acres of the land, rents of which were claimed, defendants having exhibited a deed therefor bearing date to the firm in 1859.
    There was a verdict against both the estate of J. F. Grant, father of plaintiffs, and against Simpson, administrator of the estate of W. F. Grant, uncle of plaintiffs, for $11,063.33 and costs. Judgment was rendered establishing the claim against both estates, to be paid by the administrator thereof in due course of administration.
    Motion for new trial was overruled, and Simpson appealed. The plaintiffs, by motion, asked that the claim be ranked as of sixth class, which being refused, they also appeal.
    The father of plaintiffs was married to their mother in 1846. From that time to the death of W. F. Grant, in 1871, W. F. and J. F. Grant were universal partners, engaged principally in planting and stock-raising. Neither of them owned anything outside the firm. Negroes' and land were all purchased and owned in common. Each partner put into the partnership the interest he controlled in the lands and slaves, and they shared the proceeds between them. Everything that either had, no matter how acquired or held, was transferred to the firm, and was always treated by them as the property, not of the individual members of the firm, but as the property of the firm. All lands and slaves owned by them were purchased with partnership funds, and held for partnership purposes in their firm name. The mother of plaintiffs died in 1855, the owner of three negroes, her separate property, and of a community interest in lands acquired by the Grants as before stated. After her death the negroes and lands were used in the firm as before. There were fifteen to twenty riegroes, a cotton and corn crop, twenty mules,- and some farming implements, when she died. Subsequent to her death, the Grants placed from $4,000 to $6,000 of improvements on the land, which remain there. Plaintiffs were reared and educated out of the means of the firm, at great expense. J. F. Grant, being the head of a family, made his home on the land in question, and had no other homestead. There was not sufficient assets to pay the liabilities of the firm.

      J. D. Thomas, for appellant.

      Sayles c§ Bassett, for appellees.,
   A. S. Walker, J.

The assignments of error are sufficient to raise the correctness of the rulings and charges of the judge below (1) upon the extent of the liability of the estate of W. F. Grant to plaintiffs; (2) the right of the defendants to offset the expenses of maintenance and education of the plaintiffs, so far as paid from the property of the estate; (3) the effect of the homestead rights of the father (J. F. Grant) of plaintiffs upon the land as affecting a suit for the rents of the same land, and against W. F. Grant’s estate; (4) the right to compensation for improvements made during the term for which rents, etc., were claimed, and upon the lands received in partition by plaintiffs; (5) limitation; (6) admitting parol evidence of date of purchase of lands, etc.

It will not be attempted to do more than announce the points held in deciding the case.

1. It is admitted in the pleadings, and in the testimony, that the property of the plaintiffs was in fact held by the firm, or partnership, composed of W. F. & J. F. Grant. While the effect of the wife’s death upon the community property is to vest at once in her heirs the legal estate to the extent of her interest, such death, as between the original partners, would not dissolve the partnership. If the firm did, as alleged and proved, take and hold the property, the liability for hire and rents would follow. This liability would arise independent of the rights as between the members of the firm upon a settlement of the partnership.

2. If the firm by their acts in using the property became chargeable as trustees, then as such, when called to account, as in this suit, they should be allowed all legal and equitable offsets and credits. It appears that aside from the firm business, the father of the plaintiffs had no property whatever; no capital nor income. The firm as such cannot be chargeable with the maintenance or education of children. There can be no relationship imposing such duty upon the firm. A court would, however, enforce from the income, or the property used by the firm as trustees, an allowance sufficient for their proper support and education. As by the facts alleged and proven in this case, an allowance could come from no other source, the firm could apply the income to that purpose.

“What the court will allow upon suit may be done by the trustee without suit.” Perry on Trusts, sec. 715. “So, also, any disbursements which the court would order the trustee to make will be allowed to the trustee if he makes them ■without an order.” . . . “So trustees may expend moneys for the support of an infant, if the court shall subsequently approve of the expenditure” (as reasonable, etc.).

We therefore consider the court in error in refusing the right to defendants to offset the necessary expenses, etc., of the plaintiffs while minors. They had drawn such support from the firm; they should not be allowed to take it in their education and have judgment for it. Spending it once, upon the court being satisfied that such expenditure was reasonable in amount, and proper in kind, it should be approved.

3. So also of the improvements. In civil cases there is no rule of law imposing such burdens upon litigants, as are by the charges upon this subject, as given by the court, imposed upon the defendants, to establish the facts alleged with reference to the improvements.

4. As to the homestead rights, the case is so presented that it is not clear that any error could result from the rule given by the court in the charge.

While it may result that actual homestead rights would be created and protected by the acts of the parties as given, still the pleadings make the case for decision, and we cannot look beyond them. While the constitution and laws apply to the residence of a family upon lands in which the head of the family has an estate in fee, whether as tenant in common dr in severalty, the character of homestead, and afford it protection when attacked by creditors, still the head of the family may, in his dealing with others under the homestead laws, disregard that quality in his residence.

So, in this case, if the identity of the parties as owners of property, as heads of families, as fathers of children, has been lost, and such loss of identity recognized by all parties litigating, as shown by their pleadings, then it would follow that, in determining the rights of the parties, as minors, calling a partnership firm, occupying the enforced position of trustees, to account, the rights of each would be ascertained by allowing to each only what the law gives to parties occupying the characters and conditions so assumed and acknowledged. As a firm, the individuals could have no homestead rights, and the occupation by J. F. Grant of a part of the firm lands could not be charged in this suit against plaintiffs.

5. Under the facts as developed on the trial of the case, the two years’ limitation had not run at the filing of the suit. It is held that, it not appearing when letters were granted, that one year additional was added to the time of the statute after the death of W. F. Grant, and that the presentation within that time, and suit followed within ninety days, would be within the limitation.

It is not, therefore, necessary to notice the effect of the constitutional exemptions in favor of minors and married women.

6. There was no error in allowing parol evidence of the date of the acquisition of the thirty acres, Benner tract. The subsequently executed deed would relate to the equitable acquisition, if such equity was shown.

7. We are inclined to think that the law, applied to the facts, would fix a homestead of two hundred acres on the firm lands, rent of which ought not to have been allowed as against W. F. Grant’s estate. In such event, however, the obligation of the" father for the support of his children would become active, and no offset should be allowed against any just claim of the plaintiffs for such support.

[Opinion delivered June 7, 1880.]

8. It is not necessary to act upon the question of classifying the claim.

For the errors indicated, the judgment should be reversed.

Eevebsed and eemanded.


author: Walkeb, P. J.

text:
    R. S. Simpson et als. v. Elizabeth Mullen, Adm’x.
    (Case No. 3231.)
    1. CONFÉDEBATE BONDS — CONTBACT PAYABLE IN, MAY BE ENFOBCED.— A contract as follows: “$13,000. Due Peter Mullen or order twelve thousand dollars, bearing seven per cent, per annum interest until paid, in Confederate States seven per cent, bonds, which we or either of us do promise to pay to Peter Mullen, or order, on or before the 1st day of August next, with seven per cent, interest from date, it being for his stock of cattle which we have purchased . from him this day in the following marks and brands ” (describing the cattle). “ In testimony whereof,” etc. Signed and dated June 17,1863; being between parties who resided within the Confederate States, made on a sale of property in the usual course of business, and not for the purpose of giving currency to the bonds or otherwise aiding the rebellion, is not illegal and may be enforced, Thorington v. Smith, 8 Wall., 1; Hanauer v, Woodruff,'15 Wall., 439; Lumpkin v. Smith, 46 Tex., 53.
    Appeal from Burleson. Tried below before the Hon. A. S. Broaddus.
    This suit was brought by Peter Mullen, the appellee’s intestate, against Joseph F. Grant and Peter W. Dudley, in their life-times, and is since prosecuted against the appellants’ administrators of their estates, respectively. The action is based upon a contract made and delivered by the original defendants to the original plaintiff, as follows: ‘•$12,000. Due Peter Mullen or order twelve thousand dolíais, bearing seven per cent, per annum interest until paid, in Confederate States seven per cent, bonds, which we or either of us do promise to pay to Peter Mullen, or order, on or before the 1st day of August next, with seven per cent. interest from'date, it being for his stock of cattle which we have purchased from him this day in the following marks and brands ” (the contract proceeds with a description of the cattle which are embraced in the sale). “ In testimony whereof,” etc. Signed and dated the 17th day of June, A. D. 1863. Jury, and verdict for the plaintiffs for the sum of $1,500, and judgment accordingly.
    There are several assignments of error; they present under the record before us, however, but one single proposition of law, and that is whether the verdict and judgment is warranted by the evidence and the law applicable to it. The judge who tried the case instructed the jury to find their verdict for the plaintiffs for the sum of $1,500, the parties having agreed that in case the court should hold that the plaintiff is entitled to recover anything on the contract sued on, that there is due on it a balance of $1,500 in United States currency.
    The plaintiff introduced the contract sued on .in evidence, and the sale of cattle as mentioned in the contract was admitted; that there were delivered by the plaintiff Peter Mullen to the defendants’ intestates, not less than one thousand head of cattle of the average value of not less than $3 gold, per head. The other evidence of facts which were also admitted, that are pertinent to the issue, are sufficiently stated in the opinion.

      J. D. Thomas, for appellants.

      Sayles db Bassett, for appellee.
   Walkeb, P. J.

The legal views which took the shape of judicial decisions, in many of the states, after the war, concerning the effect of Confederate money as a consideration in contracts, were discordant and irreconcilable. Many of them long since have been quite exploded ; others, being ill supported in principle, failed to command professional respect or other acquiescence than that which was enforced by the power and sanction of .judicial authority. It would be tedious and unprofitable to attempt to collect, revise or to criticise them. Many of them afforded nothing of further interest or significance than the exhibition of gross injustice or ignorance — sometimes of both — promoted by the political passions or interests of the hour, and exhibiting intrinsic evidence of a disregard or else ignorance of the elementary principles which controlled the subject and the rights of the parties.

It is at least known now, and the fact is recognized throughout the land, that not only in the courts of the states which once formed an integral part of the Confederate States, but in'the courts of the United States, a contract for the payment of Confederate States treasury notes, made between parties who resided within the Confederacy, can be enforced, the contract having been made on a sale of property in the usual course of trade or business, and not for the purpose of giving currency to the notes or otherwise aiding the'rebellion. Thus much, at least, has been decided by the supreme court of the United States. Thorington v. Smith, 8 Wall., 1.

Decisions on this question, previously made in many of the states, seemed to have proceeded upon the fanciful idea that the association of Confederate money, issued to carry on the government at war and in rebellion against the United States, per se tainted the contract with illegality and rendered it therefore invalid. Such a perversion of correct legal distinctions is corrected in the opinion of Chief Justice Chase (Thorington v. Smith); the true criterion for determining the question of illegality being whether the contract was entered into with the actual intent to further insurrection. The illegality does not spring from any contagious property possessed by Confederate money, which infects with disease and taint the contract with which it may be associated, but the contract becomes illegal when its purpose in connection with such a consideration is directed to maintaining the insurrection and accomplishing its objects. i

It is indicated in the opinion referred to that the countenance given to such a currency under the circumstances existing during the war, by the flie of it as a medium of exchange in the current affairs of business, whilst it might thereby indirectly and remotely promote the ends of the unlawful government, has no necessary relation to the essential feature of illegality in a contract of that kind, unless it is proved that the contract was “entered into with the actual intent of further insurrection.”

The decision in Thorington v. Smith was made upon a promissory note payable in Confederate notes; the contract here sued on is payable “ in Confederate States seven per cent, bonds,” dated 17th day of June, 1863, and given in consideration of a purchase by the makers of a stock of cattle. It was admitted to be true “ that the late war or rebellion wras flagrant at the time, and that the portion of the state of Texas in which the parties resided, and where the contract was made, to wit, Burleson county, was in the exclusive possession and occupation of the Confederate States, and their forces and adherents; and that the United States government, its forces and adherents, had no possession or occupation thereof, and extended no protection to those sympathizing with them, or adhering to them. That there was no gold or silver coin, or United States notes or currency, in general circulation in that portion of the state at the time, though gold and silver were occasionally used.”' The courts will take notice, as a matter of notoriety, of the absence of money, other than Confederate bills or notes, during the war. Lumpkin v. Murrell, 46 Tex., 52.

There is no evidence in the record to explain more fully the nature of “ the Confederate States seven per cent, bonds,” contracted to be paid, than is contained in their bare designation as such in the «note itself. It is, how'ever, no less a matter of notoriety connected with the history of the times referred to, that there existed Confederate States bonds ’ of that character, in domestic use, and which to a greater or less extent were employed in some of the Confederate States as a currency, and as a representative of values in large financial transactions,— in the purchase and sales of valuable property where large amounts were concerned,— than that Confederate treasury notes or bills constituted the staple of the currency used by the whole people of the Confederate States as a basis for ordinary transactions.

It is a matter of notoriety that there were during the progress of the war different grades or classifications of Confederate notes, known respectively as the “ old ” and the “new” issues, with different comparative valuations attached to them. The fluctuations in the value of these different kinds of government securities, and the great volume of Confederate notes in circulation, together with their rapid depreciation as the war progressed, caused discriminations to be made between them where it was practicable to do so, by those who had occasion from choice or necessity to sell property, especially where the amounts were considerable, and to provide in their contracts that payment should be made in that class or grade of Confederate note or bond, as the case might be, which appeared to them to offer the greater advantage against depreciation, or to afford the surer hope of ultimate payment. None of them possessed any other than a contingent value; they all rested alike upon the final event of success or defeat of the revolution. Under these circumstances, it seems but a fair interpretation of the facts to consider dealings and transactions between citizens of the Confederate States in respect to their ordinary and current business affairs, where they bought and sold property for Confederate States bonds, and where that selection appears to have been made with reference merely to a preference given to them as a currency over Confederate notes, as coming entirely within the reason, and spirit of the decision made in the case of Thorington v. Smith. In that case, Chief Justice Chase rested his conclusion in respect to the validity of a contract to pay in Confederate notes upon reasoning which may, in this connection, be quoted with advantage, to show its application to Confederate States” bonds as well as to Confederate notes. He said: “ It was by this government, exercising its power through an immense territory, that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent states. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable only ‘after the ratification of a treaty of peace between the Confederate States and the United States of America.’ While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency imposed on the community by irresistible force.

“ It seems to follow, as a necessary consequence from this actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this' currency cannot be ■ regarded, for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the'United States, after the restoration of peace, to the extent of their just obligation.”

For the explicit reasons thus furnished in that case, we find as little room for doubt in this, that contracts for the payment of Confederate bonds, made under circumstances so analogous to those existing in Thorington v. Smith, should be enforced in the courts of the country to the extent of their just obligation. In both cases the same political and military supremacy existed; the same dearth and want of a normal standard currency existed in the one case as the other; and in both, the transactions had no necessary relation to the existing and then pending hostility to the United States government, but were transactions “ in the ordinary course of civil society,” and, as expressed by Chief Justice Chase, “are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection.” The nature of these government securities is precisely the same; they were all war obligations, payable only, as the whole world knew, and as they purported on their face, in the event only of a successful termination of the war. The inherent and obnoxious qualities were the sáme identically in each. The elements which render them available as the subjects of contract consist of two main facts: 1st, that they are in fact placed upon communities as a circulating medium or currency by the dominant government; and 2d, that they are used simply as such by those contracting for them in current trade, and not with an actual intent to further insurrection.

Under such conditions, it is laid down that the contract does not draw after it the illegality which attached to their issuance for an unlawful purpose.

Will it result differently when these same conditions are applied to obligations of like character issued by the government, though differing in form, when such obligations become also the media of exchange and serve the purposes of, and are in fact, a species of currency, provided that contracts made in relation to them are entered into with an intent alike foreign to, and disconnected with, the' pending hostilities, but in the ordinary course of trade? We think such a contract is not less “ without blame,” than that which was so characterized by Chief Justice Chase.

Appellants’ counsel in his brief cites the cases of Thorington v. Smith and Hanauer v. Woodruff, 15 Wall., 439, to support the proposition that the principle laid down in the former case, applicable to Confederate notes, does not apply to Confederate States seven per cent, bonds. The latter case decided that bonds issued by authority of the convention of Arkansas, which attempted to carry that state out of the Union, for the purpose of supporting the war levied by the insurrectionary bodies then controlling that state against, the federal government, do not constitute a valid consideration for a promissory note, although bonds, of that character were used as a circulating medium in Arkansas and about Memphis in the common and ordinary business transactions of the people. The several states which composed the Confederate States did not undertake in their capacity as such to establish a currency for the people of the Confederate States, nor to control nor direct the affairs of the Confederate States. The congress of the Confederate States and its president directed national affairs under a constitution similar to that of the United States; section 8 of article 1 provided that congress shall have the power “ to coin money, and regulate the value thereof and of foreign coin; ” section 1, article 1, provided that “ no state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal ; coin money; make anything but gold and silver coin a tender in payment of debts,” etc. With limitations like these upon the powers of the states, in respect to providing a currency for the wants of the "people, and where that currency, in the shape of Confederate money, or Confederate treasury bills or" notes, was actually issued and freely circulated throughout the limits of the Confederacy, the presentation of the facts in the case of Hanauer v. Woodruff admitted perhaps of a discrimination — at any rate, such was in fact made — between the validity of one and the other class of securities — state and Confederate. In Thorington v. Smith, the Confederate notes were sustained as currency; in, the case of Hanauer v. Woodruff, state bonds were repudiated. as not coming properly within the designation of a forced currency; the court holding that the mere use of them as currency did not constitute them an enforced currency. The court held that the use of such bonds as a circulating medium did not constitute it any more a currency which had been devolved upon the people by the national power, than though they had been personal obligations of individuals, which may have circulated and derived their negotiability from the confidence reposed in the responsibility of those who had issued them.

In the case of Hanauer v. Woodruff, Justice Fields thus concludes his discussion of the question: “In the "case at bar, the war bonds issued by the secession ordinance of Arkansas, though used asa circulating medium in that state and about Memphis, did not constitute any forced currency which the people in that state and city were obliged to use. They were only a circulating medium in the sense that any negotiable money instruments, in the payment of which the community has confidence, constitute a circulating medium. The difference between the two cases is the difference between submitting to a force which could not be controlled, and voluntarily aiding to create that force.” It deserves to be noticed that in the case from which this quotation is made, Mr. Justice Miller, one of the judges of the same court, took occasion to dissent from the foregoing result, so far as concerned making a discrimination adverse to the contract sued on in the case of Hanauer v. Woodruff. He said that,” in his opinion, that case came within the principle upon which he had given his assent to the opinion delivered by Chief Justice Chase in the case of Thorington v. Smith. He used this language: “But I did assent to it '(Thorington v. Smith) on the ground that while it was unsupported by, and, in some degree, at variance with the general doctrine of the turpitude of consideration as affecting the validity of contracts, it was necessary to be established as a principle to prevent the grossest injustice in reference to transactions of millions of people for several years in duration. I think the present case comes within that principle.”

Justice Miller’s opinion in the matter of the Arkansas bonds applies with increased force to the validity of Confederate States seven per cent, bonds. s

The Arkansas bonds are stated, in the report of the case, to have been “ issued by the authority of the convention which attempted to carry the state of Arkansas out of the Union by an ordinance of secession; that they were issued for the purpose of supporting the war levied by the insurrectionary bodies then controlling that state against the federal government, and were styled ‘ war bonds ’ on their face,. and that the purpose of their issue was well known to both plaintiff and defendant; that the bonds received by the defendant were not used, nor intended to be used, by him in direct support of the 'war, but in the ordinary course of his business; and that bonds of this character were at that time used as a circulating medium in Arkansas and about Memphis, in the common and ordinary business transactions of the people.”

Certainly, the Confederate States seven per cent, bonds could not possibly have been more-flagrantly obnoxious for illegality than these appear to be on their face; and yet Justice Miller brings contracts founded on these latter within the principle of Thorington v. Smith. In the case before us the evidence does not disclose what was the form or nature or inducement to the issuance of the seven per cent, bonds referred to; and it does not necessarily result that they were more obnoxious than the Confederate notes, nor but that they may have been issued to serve the purpose of a currency for the people in their ordinary transactions of business.

From this review of the two leading cases decided by the supreme court of the United States, we conclude that the consideration of the note sued upon was not an illegal one upon the facts of this case, and that they fully support our conclusion.

It may be questioned, I think, whether the test applied to the subject in Thorington v. Smith is not a more stringent exaction than is warranted on true and correct principle. It would seem to be sufficient, in order to relieve such contracts from having attached to them the consequences of the illegality or vice existing in the obnoxious paper resulting from its illegal origin, that such instruments were bought and sold as commodities in the market in the usual course of trade, without regard being had by those dealing in them to the existing state of hostilities, and without an intent thereby to promote or advance the overthrow of the government. The illegality does not consist in the mere acquisition, or in the agreement to acquire property or securities of an insurrectionary or revolutionary government; the essence of the illegality consists in an act and an intention connected with such a transaction, to advance and aid the illegal object. But it is deemed altogether sufficient that the consideration in this case is a valid one, tested even by the strictest rule, and one announced by the highest federal authority.

It may even be a question whether the notes and bonds issued by the Confederate States were in fact tainted by the illegality which the current of judicial decision assumes as a starting point. The constitutional and political history of the United States illustrates the fact that- none could say, ex cathedra, what was the limit of right of a state or states to withdraw from the federal compact; the right to do so peaceably under the constitution was claimed by great deliberative political assemblages, by great statesmen, and by constitutionally organized legislative bodies, running back to very early days of our history, down to the acts of secession. Uothing was more certain than the doubt with which the rights of the states were invested, and that it culminated into extreme partisan advocacy, setting up theories exactly opposite. There was no ultimate arbitrator of the question, and that it was an unascertained problem of political power, an undefined line which separated state from federal sovereignty, was an existing fact, and that insoluble fact was itself part and parcel of our form of government. Whether the one theory or the other was right is not the point. If, however, it were thus an undefined and doubtful right of the states to withdraw, and the people and the states acted upon their convictions of a right to peaceably withdraw, and to form and did form a separate nationality, will such transactions be properly identified and classed with an insur rection or rebellion against a government whose form is such that no question is to be made concerning the treasonable character of such acts of rebellion ?

[Opinion delivered June 20, 1880.]

If not, then, however false in fact may have been the assumption by the states as to their rights to secede, nevertheless, the sovereign acts of said states, as component parts of a common union, would, under those circumstances, present a case not of rebellion against acknowledged authority in the face of a constitution which defined their duty, but would be the exercise, perhaps wrongfully and erroneously, of a power under a constitution which doubtfully interpreted the limits of that power. The act of secession would not be the act of attempting to overthrow established and acknowledged power and authority — it would not be treasonable nor rebellious. It might be civil war — revolution; but the element of treason and insurrection against constituted authority would be wanting. And, if so, the acts of the government thus organized would not be tainted with treason ; its notes and bonds would not be those of mere insurgents.

This view may be suggested in contrast with the extreme views in a precisely opposite direction which have generally assumed, as if not to be questioned, that the paper money and bonds issued by the Confederate States were utterly illegal and founded and based in treason. If they were not thus illegal when issued, they do not become so retroactively by means of the defeat of the Confederate cause. To so hold would be to create an offense ex post facto by a species of judicial confiscation.

We conclude that the judgment of the court was correct; we conceive it to be well supported on elementary principles applicable to the question, as well as by the authority of the. cases to which we have referred, and to some extent discussed in this opinion. We determine, therefore, that the judgment should be in all things affirmed.

Affirmed.


text:
    Mary Morgan v. Estate of A. P. Morgan.
    (Case No. 2649.)
    1. Homestead — Tenant in common.—The head of a family residing on a tract of fifty acres of land, situated a mile distant from another tract of two hundred and forty-six acres, which also belongs to him, a part of which is in cultivation, may claim as homestead the land on which he resides, and as much of the other as will make up the two hundred acres exempted by law. That the two hundred and forty-six acre survey is held as tenant in common does not prevent the homestead from being established upon it, subject, however, to the rights of the co-tenant. Clements v. Lacy, 51 Tex., 150.
    Appeal from Washington. Tried below before the Hon. I. B. McFarland.
    The plaintiff below, appellant in this court, filed her petition May 13, 1874, for partition, to designate for her one-half of the land described therein. The petition alleged “ that although the deed of conveyance for said land from said H. P. and Elouisa C. Harris to Abiah P. Morgan (the deceased) is in the individual name of said A. P. Morgan, one-half of said land belonged to. and was held by said A. P. Morgan in trust for her.”
    To this petition the defendant Angelina Morgan, administratrix of the estate of A. P. Morgan, answered May 28, 1874, with a general demurrer and a general denial of the allegations in plaintiff’s petition.
    On the 28th of October, A. D. 1874, the cause was called for trial, J. E. Marsh, a mortgage creditor of the estate of A. P. Morgan, was permitted to'intervene, and by consent of parties the case was transferred to the probate side of the court, and the issues of law and of fact submitted to the court.
    The issue presented between the plaintiff and the estate of A. P. Morgan, deceased, was whether or not A. P. Morgan held the absolute fee to the entire two hundred and forty-six acres, as appeared from the deed of Harris, and wife, or whether he held one-half of the same under the Harris deedin trust for Mary Morgan. On the trial, Mrs. Angelina Morgan, administratrix and surviving widow, admitted for herself “ the facts as alleged by Mrs. Mary Morgan, in her petition.” The material fact alleged in said petition, and so admitted, was, “ that although the deed of conveyance for said land from H. P. and Elou'isa 0. Harris to Abiah P. Morgan is in the individual name of said A. P. Morgan, one-half of said land belonged to and was held by said A. P. Morgan in trust for” the plaintiff. It appeared that the deceased recognized the right claimed by plaintiff to one hundred and twenty-three acres interest in the land. The land in controversy was a different tract from the tract upon which the deceased resided at the date of his death, and upon which the family continued to reside after his death, and is about one mile distant from the family homestead, and had from sixty to eighty acres in cultivation.
    Judgment was rendered, setting apart one hundred and fifty acres as homestead, to be selected by defendant; the remainder, ninety-six acres, to be sold to satisfy the trust deed; excess, if any, to be paid to plaintiff.
    The plaintiff appealed, assigning as error:
    “ The court erred in setting apart for homestead purposes land admitted to have been held in trust for plaintiff at the date of decedent’s death, and not disincumbered since the death of said decedent.”

      P. H. db J. 8. Swearingen, for appellant.

      Breedlove db Ewing, for appellee.
   A. S. Walker, J.

The facts show a residence of defendant, as head of a family, on fifty acres of land, about one mile distant from the tract of two hundred and forty-six acres, the subject of litigation.

That, as between the estate and the plaintiff, the two hundred and forty-six acres is held in common.

That the mortgagee, who is intervenor, had no notice of the equity to one-half owned by the plaintiff.

The court adjudicated that the two hundred and forty-six acre tract was subject to homestead rights to extent of one hundred and fifty acres in favor of the estate, represented by the defendant below.

[Opinion delivered June 14, 1880.]

There should'result from these facts and such adjudication : t

1. That the one hundred and fifty acres homestead belongs in common to the plaintiff and the estate, subject to partition. Lacy v. Clements, 51 Tex., 162.

2. That as to the remainder, the ninety-six acres, it is subject to partition between the plaintiff and the eptate; the-half set apart to the estate to be sold first, and, if not sufficient, then the other forty-eight acres to be sold; after satisfying the debt of intervenor, the excess to be paid to the plaintiff.

Reversed and reformed in accordance with this opinion.

Reversed and reformed.


author: Walker, P. J.

text:
    S. A. Pace v. T. P. Sparks.
    (Case No. 4034.)
    1. Landlord and tenant—Trial of the right of property.— Where a tenant’s cotton has been levied on under execution, his landlord cannot recover under his lien for rent, in the statutory, proceeding of trial of right of property. While his lien is superior to all. other creditors, it does not give him title to the property, but only the right to have it subjected to the payment of his debt. Perkins v. Sterne, 23 Tex., 532; Duty v. Graham, 12 Tex., 432; Buchanan v. Monroe, 22 Tex., 541; Wright v. Henderson, 12 Tex., 44; Blacks., book 2, p. 317; Acts 14th Leg., p. 55; Ewing v. Perry, 35 Tex., 778; Matthews v. Burke, 32 Tex., 432; Townsend v. Isenberger, 45 Ia., 670; Alwood v. Ruckman, 21 Ill., 200; Woodruff v. Adams, 5 Blackf., 318; Dixon v. Niccols, 39 Ill., 372; Cloud v. State, 53 Miss., 664; Westmoreland v. Wooten, 51 Miss., 825.
    Appeal from Navarro. Tried below before the Hon. D. M. Prendergast.
    The facts are stated in the opinion.

      Beaton (ft Damon, for appellant.

      Frost (ft Barry, for appellee.
   Walker, P. J.

This was a case of trial of the right of property. S. A. Pace caused to be levied an execution, which was issued on his judgment for $85 and costs, against Pi M. Halbrook, the judgment debtor, on two bales of cotton, as the property of Halbrook. T. P. Sparks made claim to it, filed the bond required by law, and took possession of the cotton. The issues on which the parties finally tried the case were these, viz.: The plaintiff, Pace, alleged that the cotton was the property of Halbrook, and subject to execution and the levy. The claimant claimed one-fourth of the cotton as his absolute property.

The evidence established that Sparks, who resides at Waco, had rented his farm in Havarro county, during the year 1879, to Halbrook, and was to receive as rent one-third of the corn and one-fourth of the cotton raised on the farm by said tenant. Halbrook resided on the farm with his family during said year; had complete management and control of the farm, and he hired hands to gather the crop. Sparks had a mortgage on the entire crop' to secure a debt of $279.09, only $130 of which had been paid. The mortgage was duly registered before the levy. He gave Halbrook permission to sell enough of the mortgaged cotton to pay his hands for picking the crop. Halbrook brought the two bales in controversy to Corsicana, left them in the cotton yard of J. 1L Scales, and gave him authority to sell them for him. Then plaintiff made the levy. Sparks admitted that if the cotton had been sold he would not have claimed it from the purchaser. The cotton was proved to be worth $106.30. The judgment of the court was, that the plaintiff recover three-fourths of the cotton, defendant one-fourth, and that plaintiff pay costs.

Hon. D. M. Prendergast, before whom the case was determined in the district court, on appeal, appends to the agreed statement of the case, the legal point which controlled his judgment, as follows: “ The cotton being prepared for market by the terms of the rent contract, the claimant, I took it, was entitled to the immediate possession of one-fourth of the amount, and was the absolute owner thereof. Upon this view of the case the judgment complained of was rendered.” Pace appealed. The assignments of error present the question whether the rights of Pace as landlord and as mortgagee gave him absolute title to the cotton, or to any part of it.

In equity the mortgage is but an incident to the debt; and the mortgagee can never acquire an absolute title to the thing mortgaged, as against the mortgagor, without the aid of the court. Perkins v. Sterne, 23 Tex., 532; Duty v. Graham, 12 Tex., 432. It is but the security for the debt, and only a chattel interest. Buchanan v. Monroe, 22 Tex., 541; Wright v. Henderson, 12 Tex., 44. We presume that, no question was or can be made that Sparks acquired a right of property in and to the cotton by virtue of his mortgage. His rights as a landlord are given to him by the statute, in contracts for the lease of lands. # The contract between Sparks and Halbrook was the renting of the farm of the former to the latter for the period of the year 1879, for which Sparks was to receive as rent one-third of the corn and one-fourth of the cotton raised on the farm. A lease cannot more accurately and clearly be indicated by the expressions used in the terms of a contract, than it is by the languagd employed in this contract.

“A lease is properly a conveyance of lands or tenements (usually in consideration of rent or other annual recompense), made for life, for years, or at will.” Blacks., book 2, p. 317. “Bent is defined to be a certain profit issuing yearly out of lands and tenements corporeal.” Id., p. 41.

The contract being a verbal lease, and which made no other stipulation than for the lease of the land for a year, on the one hand, and for the payment of the rent therefor in the produce raised upon it, on the other, whatever remedies or rights are given under it to the landlord are derived from the law which prescribes, the legal effect of such a contract. It is enacted in the laws of the fourteenth legislature, “ that all persons-leasing or renting lands or tenements, at will or for a term, shall have a preference lien upon the property of the tenant hereinafter indicated, upon such premises, for any rent that may become due and for all money, and the value of all animals, tools, provisions and supplies furnished by the landlord to the tenant to enable the tenant to make a crop on such premises, and to gather, secure, house and put the same in a condition for market; . . . and this lien shall apply only to . . . the crop raised on such rented premises; . . . and such preference lien shall continue as to, etc.; . . . and such lien * as to agricultural products, etc., . . . shall be superior to all laws exempting such property from forced sales, provided that such lien shall not attach to the goods, wares and merchandise of a merchant, etc.; . . „ and provided further, that the removal of agricultural products for the purpose of being prepared for market shall not be considered a waiver of such lien, but such lien shall continue and attach to the products so removed, the same as if they had remained on such rented premises.” Acts 14th Leg., pp. 55 and 56.

Thus it is seen in this section of the act just quoted that the law gives to the landlord a lien as the security for his debt, but does not vest in him the property; other provisions of the law provide for its enforcement. He has no absolute right to the property — he has no title to it; it. belongs to the tenant subject to the lien of the landlord. The landlord may even lose that lien. Ewing v. Perry, 35 Tex., 778; Matthews v. Burke, 32 Tex., 432.

“ Where land is leased upon condition that a third of the crop shall be given to the owner in payment of rent, the owner acquires no title to the part of the crop reserved for rent until it is set apart to him by the tenant.” Townsend v. Isenberger, 45 Iowa, 670. Citing Rees v. Baker, id.; Alwood v. Ruckman, 21 Ill., 200; Woodruff v. Adams, 5 Blackf., 318. The same proposition is distinctly decided in Dixon v. Niccols, 39 Ill., 372.

The contract in this case seems to be a contract of mere teasing for a stipulated rent payable in the products raised on the land. Our statute makes provision for a lien in favor of the landlord, where, in addition to the lease of the land, he has contributed otherwise to make the crop. Statutes similar in their general purport and objects exist likewise in other states, e. g., in the state of Mississippi, where, in construing and determining the respective interests and rights under such contracts, in Cloud v. State, the court held that “The intendment is that it (the landlord’s lien) shall have preference over other incumbrances on the products of the soil. But this lien for the creditor, who has contributed means to make the crop, must be enforced within six months after the debt became due, or it expires. The statute gives a special remedy. Detinue or replevin xvould not lie at the suit of the creditor, because he has no property in the products. His right is to have satisfaction out of the cotton. A lien is a privilege to pursue the thing, and subject it to the debt. It adheres to the thing, and the creditor may pursue it in the hands of a remote vendee, and his lien will be paramount to any title the debtor could transfer. But the purchaser does not thereby make himself personally liable to the creditor.” Cloud v. State, 53 Miss., 664. A purchaser of cotton from a tenant was held not to be liable to the landlord for the value of the cotton, because the landlord had a lien for his rent. Westmoreland v. Wooten, 51 Miss., 825.

From an examination made of numerous cases decided in different states, xve have seen no variation from the general principle laid down in the cases xve have referred to, and to which many others to a like effect might be added. But there are cases which decide that where, by the terms of the contract betxveen the parties, they each would have a right to the crop xvhen it should mature or be gathered, that the relation of landlord and tenant would not necessarily exist, but that the parties to it may be tenants in common of the crop. Alwood v. Buckman, 21 Ill., 201. It is needless in this case to be diverted to the examination or discussion of this class of oases and contracts. The contract between the claimant and his tenant was not in any wise analogous to the contracts referred to; it was a lease—nothing more—of the land for a stipulated rent, and it is governed by the ordinary rule applicable to such contracts. The remedies furnished. by the law to the landlord for his protection are as ample and various as are the just necessities which may invoke their application; we need not point them out; it is .sufficient now to say that the right to claim possession and ownership of the produce raised by the tenant, unaided by the law decreeing it to him, is not one of those remedies.

[Opinion delivered June 12, 1880.]

■ The right of the appellee, Sparks, was one superior to that of all other creditors; but as against the levy of an execution in favor of a judgment creditor of Hal brook, if he sought to protect himself against apprehended loss, he cannot do so in this statutory proceeding of trial of the right of property, without being able to show that the property is not subject to execution at all, or else that it is not liable to the levy which the plaintiff has made upon the property. Having failed to show that he is the owner of any part of the cotton, and the plaintiff showing a right of property in Halbrook, it was error to render judgment in his favor for any portion of the cotton.

We conclude, therefore, that the judgment shall be reversed, and the cause remanded for further proceedings in accordance with the rules and principles applicable to the case as indicated in this opinion.

Reversed and remanded.