text:
    SELIGER v. STATE.
    No. 20973.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    E. T. Miller and Simpson, Dorenfield & Fullingim, all of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for four years.

No statement of facts is brought forward. A certificate of the trial judge, in approving appellant’s bill of exception No. 2, conclusively shows that the failure to secure a statement of facts can not be charged to appellant. It is shown in the bill of exception that after appellant had been convicted he promptly made satisfactory arrangements with the court reporter for á statement of facts. Thereafter the court reporter was accidentally killed. He had not prepared a statement of facts in the case, and it is certified in the bill of exception that no other person was able to prepare such statement from the notes that he had taken during the trial. Neither the district attorney nor appellant’s counsel would undertake ■ to prepare a statement of facts from memory. The trial judge certifies that he did not keep any notes during the trial and could not and would not attempt to make up a statement of facts in the case. We quote in part from the court’s certificate, as follows: “The court certifies that without any fault or negligence on, the part of the defendant and his counsel, but due solely to the untimely and accidental death of J. Henry Cross, the official court reporter, the defendant and his counsel have been deprived of the statement of facts necessary to perfect their appeal, and have been deprived of data from which they could prepare bills of exception preserved by the defendant during his trial.”

It is apparent that appellant has been unable to obtain a statement of facts after using due diligence and that there has been no fault or negligence either on his part or on the part of his counsel. It follows that we are constrained to order a reversal of the judgment. See Brannan v. State, 137 Tex.Cr.R. 611, 132 S.W.2d 594, and Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    VILLAREAL v. STATE.
    No. 20968.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    'Gus C. Garcia, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of sheep; the punishment, confinement in the penitentiary for two years.

Ricardo Real was employed on the ranch of J. B. Biedler. Real testified that on the 24th of June, 1939, he saw appellant in one of Mr. Biedler’s pastures with a lamb or sheep in his hands. The witness testified: “He (appellant) was carrying the animal by the two hind feet and the two front feet in each hand and he was carrying the animal in front of him. He was carrying the animal just like this (witness demonstrating by holding his hands out in'front of him) and while he was carrying it that way the head was hanging on the side of the animal. He was about ten feet from the fence when I first saw him with that animal, and he was nearing the fence, and I saw him get to the fence, and his wife took it and she laid it down; she took hold of the sheep and put it on the ground near the car, and Villareal then crossed the fence and then he lifted the animal and put it inside the car.” The witness testified further that the animal appeared to be dead. ⅞ Again, he testified that after appellant entered the car he and his wife drove away.

Mr. Biedler testified that he did not give appellant permission to take the sheep.

Shortly after the theft, the sheriff, Mr. Biedler and Real went to the place from which the sheep had been removed and found a pool of blood and some entrails. There were footprints leading from the pool of blood to the fence. Outside of the fence there were automobile tracks. The sheriff testified, in part, as follows: “The tires I found on Sergeant Villareal’s (referring to appellant) car had the same type of marks with the tracks we saw on_ the Macie Road out there. I don’t know what that tread is commonly called, but I think it is called a rib tread. It had four marks and we had found four marks on the ground out there.”

Appellant did not testify and introduced no witnesses.

The court instructed the jury in substance to acquit appellant if they believed the sheep was dead at the time of the alleged taking. We think the jury were warranted in concluding that appellant butchered the sheep and carried it away. Hence we deem the evidence sufficient to support the conviction.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    HART v. STATE.
    No. 20860.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.

      E. T. Miller and Cleo G. Clayton, both of Amarillo, and Jos. H. Aynesworth and H. M. Hood, both of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for an assault with intent to rape; the punishment assessed is confinement in the state penitentiary for a term of four years.

The indictment, which contained two counts, charged rape and assault with intent to rape. Both counts were submitted to the jury and they returned a verdict finding appellant guilty of an assault with intent to' rape. The prosecutrix, as disclosed by the record, was a married woman. She had come to Borger in Hutchinson County to visit her brother. While there, she -went with some relatives and children, one of which was her own, to a night club located a very short distance from Borger. There she was invited to come inside and dance. She met the appellant at the dance and they danced for about an hour and a half, leaving about one-thirty in the morning. Accompanied by appellant and another young couple, the prosecutrix went into Borger to a restaurant to get some coffee. Then they took the other couple home, but instead of taking her back to the night club, appellant took her out on a lonely road where he assaulted her. We quote from her testimony concerning the occurrence: “He turned off to the side of the road and went down there. * * * Then he tried to kiss me and I wouldn’t let him. * * * He started fighting me then and I started fighting back and he throwed me down in the seat a number of times, and threw me.back against the car door and struck my head, and I kept fighting him, and he throwed me up against the steering wheel several times and I tried to reason with him. * * * He then drug me out of the car and tore my clothes off and drug me over the ground * * * and began beating me again, beat me in my sides and my stomach and I lost consciousness. * * * I resisted his advances with all the strength and power at my command. * * * After I lost consciousness, when I came to again, the condition and position that I found myself in was that I had on my shoes and my hose and that was all I had on, and I was laying across the seat of the car; half of my body was in and the other half of my body was out. The defendant was fixing his pants, arranging his clothes.” ,

After this, appellant took her back to the night club. She made her escape and caught a ride back to town, where she immediately made a report of the matter to her brother. A physician who made an examination of the prosecutrix described her bruised and battered condition and testified that in his opinion her privates had been penetrated. Appellant did not testify or offer any affirmative defense. In our opinion the evidence is clearly sufficient to sup-, port his conviction for assault with intent to rape.

All of appellant’s exceptions to the court’s charge, as well as his special requested charges relating to the .offense of rape, pass out of the case since he was only convicted of an assault with intent to rape. His complaint that no - charge on aggravated assault was given is without merit. The facts did not raise such an issue. He did not testify. The uncontra-dicted testimony of the prosecutrix cleai'ly showed that his intention was to then and there have sexual intercourse with her regardless of any and all resistance on her part. Under these circumstances we do not think the issue of aggravated assault was raised. A similar question as the one here presented was discussed in the case of Rettig v. State, 90 Tex.Cr.R. 142, 233 S.W. 839. This also disposes of appellant’s contention that the-charge should have instructed the jury on the theory of indecent exposure of his person. We have carefully considered all of the other objections lev-elled at the court’s charge, .and reached the conclusion that it is not subject to the criticisms addressed- thereto.

Appellant insists that the trial court erred in overruling his application for a continuance based on the absence of one, Roland Smith. The indictment in the case seems to have been returned on June 6, 1939. Appellant’s attorneys were told that June 26, July 10, and July 17 would be set aside for the trial of criminal cases. It further appears that appellant had been informed on June 30 to bé ready for trial on July 10. The first application for a subpoena for this witness seems to have been made on July 5, at which time his name was listed among those of other witnesses which the defendant desired to have called. The residence of said witness was not given; it merely being alleged that he was a resident of Borger in Hutchinson County, Texas, and stating in general terms that he was an employee of some oil company. No subsequent application for any other process seems to have been made. Appellant failed to attach an affidavit by the alleged absent witness to his motion showing what the testimony of said witness would have been. He merely alleged that the witness was temporarily out of the city, and was now out of the state. The fact that appellant waited nearly 30 days after his indictment until S days before his trial to apply for process for such witnesses as he desired tends to show that the defendant did not use that degree of diligence which the law requires. Authorities somewhat analogous are Boaz v. State, 89 Tex.Cr.R. 515, 231 S.W. 790; Estep v. State, 107 Tex.Cr.R. 538, 298 S.W. 283; Payton v. State, 35 Tex.Cr.R. 508, 34 S.W. 615; Griffith v. State, 62 Tex.Cr.R. 642, 138 S.W. 1016; Howell v. State, 95 Tex.Cr.R. 583, 255 S.W. 171; Johnson v. State, 86 Tex.Cr.R. 276, 216 S.W. 192, 193; 9 Tex. Juris. §§ 99-103, p. 781-794, § 105, p. 795; Barton v. State, 114 Tex.Cr.R. 404, 23 S.W.2d 377; Reynolds v. State, 92 Tex.Cr.R. 481, 244 S.W. 1001.

Appellant also complains of misconduct of the jury in discussing his failure to testify. Appellant contended on the hearing of his motion for a new trial that some juror made the following remark in the jury room: “It is a hell of a guy who won’t testify in his own case.”

Eleven of the jurors were introduced. Not one of this number unequivocally admitted that such a statement was made. Seven of them testified that they heard no . remark at all concerning the defendant’s failure to testify. Three of the jurors testified that someone made the following remark: “Wonder why he didn’t testify”, but that the foreman immediately admonished the jury that this was a matter which they could not consider. The other juror stated that if such a remark as “It’s a hell of a guy who won’t testify in his own case” was in fact made, the foreman immediately called him down. He would not state positively that any such remark was made. Not one of the jurors testified that they discussed the matter. An analysis of all the evidence heard on the motion shows that while probably some one remarked “Wonder why he didn’t testify” the matter ended there, and no further reference to the matter was made. In other words, the reference to the defendant’s failure to testify was at most a casual one, and no discussion thereof was had. This court has held many times that in such cases, no reversible error is presented. The trial court was justified in his conclusion that no discussion was had by the jury of the defendant’s failure to testify, and that any reference made of such failure amounted at the most to an allusion. See the case of Freeman v. State, 118 Tex.Cr.R. 67, 39 S.W.2d 895, 896, where the authorities are collated; Patton v. State, 133 Tex.Cr.R. 3, 106 S.W.2d 319; Polanco v. State, 135 Tex.Cr.R. 265, 117 S.W.2d 792.

All of appellant’s bills of excep tions can be treated together as they complain of certain testimony of Mr. Whitehead, the brother of the prosecutrix. After having testified to her hysterical condition upon her arrival at his home, Mr. Whitehead was asked by the District Attorney about how long it took to get his sister calmed down, to which he replied that it took about 15 minutes before the prosecu-trix could go to the police station. Appellant claims that he objected thereto on the ground that such questioning was highly prejudicial; that trying to calm,the prose-cutrix down was an independent act on the part of the witness- — -not the act of the prosecutrix and not a part of the res gestae. The court qualifies the bill and states that the only objection urged to this testimony was that such questioning was improper. Two other bills show that while the same witness was being examined, the district attorney asked him the following question: “Did she or not tell you that she had been raped?” The witness replied: “She told me that she had been half-killed by a beast and she had been raped.” One of these bills shows that appellant made no objection to such, questioning. In the other bill, it is shown that appellant objected on the ground that such questioning was prejudicial, irrelevant, not part of the res gestae, and did not tend to prove any issue in the case. We think that under the facts of this case, such testimony was admissible as a part of the res gestae. Just as soon as the prosecutrix escaped from the appellant, she caught a ride with a Mr. Coons who testified to her hysterical condition and torn clothing. She was carried almost immediately to her brother’s home. When she arrived there she was highly excited and hysterical. It took her brother some fifteen minutes to get her sufficiently calm to tell him what had happened and report the matter to the police. It is always relevant in rape cases to show an outcry on the part of the assaulted female, her state •of mind, her physical. condition, and the condition of her wearing apparel soon after the alleged offense, as it tends to sustain her version of the assault, the intent with which it was made, and tends to exclude the idea of consent. See Reid v. State, 105 Tex.Cr.R. 147, 287 S.W. 269; Tights v. State, 21 Tex.App. 308, 17 S.W. 428; Sentell v. State, 34 Tex.Cr.R. 260, 30 S.W. 226; Ulmer v. State, 71 Tex.Cr.R. 579, 160 S.W. 1188; Hickman v. State, 137 Tex.Cr.R. 616, 132 S.W.2d 598; Burge v. State, 73 Tex.Cr.R. 505, 167 S.W. 63; Garcia v. State, 128 Tex.Cr.R. 6, 79 S.W.2d 133; Castillo v. State, 31 Tex.Cf.R. 145, 19 S.W. 892, 37 Am.St.Rep. 794. Moreover the testimony of the doctor who later examined her on the same night, and that of Mr. ■Coons was introduced without objection .and is to the same effect. See Gurganus v. State, 134 Tex.Cr.R. 34, 113 S.W.2d 1237; Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972.

All other matters complained of by appellant have been examined by us and are deemed to be without merit.

No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Appéllant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant reiterates his contention that the jury in their retirement discussed his failure to testify to the extent that the mandatory provisions of Article 710, C.C. P., were violated. After carefully re-examining the record, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


text:
    CRIDDLE v. STATE.
    No. 20956.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    T. R. Florey, Jr., of Ml. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., oí Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    FORTSON v. STATE.
    No. 21017.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 22, 1940.
    Hardin, Hardin & Hardin and Fred W. Hofstetter, all of Edinburg, and Gus L. Kowalski, of Kingsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This case originated in the Justice Court of Kleberg County, where the appellant was convicted under the complaint hereinafter set out and given a fine of five dollars. On appeal to the County Court, a fine of $110 was assessed, from which this appeal is taken.

A number of questions are raised in the case, but we find it necessary to consider only one.

The following is a copy of the complaint so far as it is essential to a decision of this case. The affidavit alleges that: “Leo W. Fortson * * * did then and there unlawfully operate a commercial motor vehicle, to-wit: a truck & semi-trailer, upon a public highway of the State of Texas, to-wit: State Highway number 16, outside the city limits of an incorporated city or town, in the County of Kleberg, Precinct number 1, State of Texas, with a net load weight on said vehicle, said load thereon weighing in excess of seven thousand pounds; and said vehicle and load thereon not coming within any of the exemptions to the seven thousand pound limit laws as provided by the laws of the State of Texas.”

The prosecution is under the provisions of Art. 827a, Vernon’s Ann. Penal Code. It will be observed that one of the essential allegations in this complaint is that the vehicle and load do not come within one of the exemptions to the 7,000 pound limit laws. For the period of time involved, the appellant drove from Premont, Jim Wells County, to Kingsville in Kleberg County, Texas. He was arrested outside of the city limits of Kingsville. There is nothing in the stipulation of facts to show what road the appellant traveled or that he passed any shipping point as designated in the exemptions. Neither is there any other evidence attempting to show that he did not come within one of the exceptions set out in Art. 827a, sec. 5, of the Vernon’s Ann. Penal Code of Texas. It was incumbent upon the State to allege and prove these facts. Having failed to do so, the conviction cannot stand. Kitchens v. State, 133 Tex.Cr.R. 245, 109 S.W.2d 1071.

The case is reversed and remanded.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

The State presents a request for leave to file a delayed motion for rehearing based on the contention that we were in error in holding the complaint bad because it failed to negative certain exceptions. The request for leave to file this motion comes long after the time has expired in which motions for rehearing may ordinarily be filed, but is predicated on the ground that the court has control over its judgments during the term at which rendered. We recognize the rule, but doubt the expediency of its application in the present instance. The mandate from this court has long since issued, and perhaps many complaints of like character have been disposed of under that opinion in this case. We therefore think it proper to deny the request for leave to file the motion. However, we wish it understood that such ■denial is not to be taken as in any way expressing an opinion on the merits of the State’s contention regarding the State’s pleadings.

The request for leave to file motion is denied.


author: LOONEY, Justice.

text:
    McMULLEN v. BURTON AUTO SPRING CORPORATION.
    No. 12854.
    Court of Civil Appeals of Texas. Dallas.
    March 2, 1940.
    Shirley W. Peters and F. B. Davenport, both of Dallas, for appellant.
    Samuels, Foster, Brown & McGee, of Fort Worth, for appellee.
   LOONEY, Justice.

This appeal is from an order sustaining a plea of privilege. The parties will be referred to as in the court below. J. L. Mc-Mullen, a resident citizen of Dallas County, Texas, sued Burton Auto Spring Corporation, a foreign corporation chartered under the laws of the State of Illinois, seeking damages for the breach of a personal service contract.

The defendant filed a plea of privilege to be sued in Tarrant County, alleging that its office and place of business, also the residence of its officers and -agents, at all times involved here, were in the City of Fort Worth, Tarrant County, Texas, and not in the County of Dallas. Controverting the plea of .privilege, plaintiff contended that the defendant, being a foreign corporation transacting business in the State without a permit, could not assert the privilege of being sued in any particular county.

The facts are undisputed. Defendant is a-foreign corporation, chartered under the laws of the State of Illinois, and, in good faith, had attempted to obtain a permit to do business in Texas, but its application was refused after being on file with the Secretary of State for more than a year. It maintained a principal office and place of business in the City of Fort Worth, Tar-rant County, Texas, and has never maintained an office, place of business, agent or representative in any county of the State, other than in Tarrant County; nor did the cause of action sued upon arise in whole or in part in Dallas County, Texas. The court overruled plaintiff’s motion to strike, the demurrers urged, and, on hearing, sustained the plea, and changed venue of the case to a court of proper jurisdiction in Tarrant County.

The sole question presented is, whether or not a foreign corporation, transacting business at a definite location in a particular county of the State, although without a permit, is precluded from urging a plea of privilege to be sued in the county where it maintained an office and conducted its business ?

As an approach to the question, we think it may be correctly said that, the terms “inhabitant” and “resident”, as employed in the venue statute, are synonymous; also that the terms “domicile” and “residence” are used interchangeably. See Pittsburg Water Heater Co. v. Sullivan, 115 Tex. 417, 282 S.W. 576; Russell Grader, etc., Co. v. McMillin, Tex.Civ.App., 271 S.W. 124.

The precise question presented, apparently, is one of first impression in this State. The only case cited by plaintiff in support of his contention is, Aviation Credit Corporation v. University Aerial Service Corporation, Tex.Civ.App., 59 S.W.2d 870, 871, which, in our opinion, is not in point. The court merely held that, a plea of privilege urged by a foreign corporation was insufficient, in the absence of allegations as to its domicile or residence in the State, saying: “The.trial court did not err in sustaining exceptions to appellant’s plea of privilege. It alleged therein that it was domiciled in, and a resident of, New York State. Nowhere did it allege that it also had a domicile in, or was a resident of, the state of Texas.”

The case of Atchison, T. & S. F. Ry. Co. v. Stevens, 109 Tex. 262, 206 S.W. 921, 922, is analogous. The defendant, a foreign railway corporation, was sued in El Paso County, Texas, and filed a plea of privilege, alleging that' it was not conducting business where sued, but did conduct business in the,counties of Potter, Hemp-hill, Galveston, Johnson and Cooke, contending that it was suable, if at all, in one of the counties named. Disposing of the question, Chief Justice Phillips, speaking for the Supreme Court, said: “The real question in the case is one of venue. For the Railway Company to have been properly suable in El Paso County it was necessary that-it have an agency or representative in that county. Under its plea it was shown not to have had an agency or representative there * * * ”; holding that venue of the case should be changed “to the District Court of one of the counties named in the defendant’s plea of privilege, as the plaintiff may elect.” To properly appraise this holding, it is important to understand that, a foreign corporation is without authority to either construct,, build, operate, acquire, own or maintain a. railroad within the State (Art. 6260, R.C. S.) ; so, if the company was conducting a. railroad business in either of the counties of the state named, it did so without legal authority; but, notwithstanding that fact, the Supreme Court held that it had the right, as a litigant on the defensive, to plead its privilege to be sued in a county where it conducted its business.

The case of Tucker v. Ingram, 187 S. C. 525, 198 S.E. 25, by the Supreme Court of South Carolina, if decided by a Texas court, would be precisely in point. It seems that the South Carolina statutes on the subject are similar to our own, and the factual set-up is very similar. The court held, regardless of whether or not the North Carolina company had been domesticated under the laws of South Carolina, that, by the establishment of an office and agent in Richland County, S. C., the defendant corporation became a resident of that county, and that the question of its domestication, whether or not, was irrelevant.

The legislative history of the subjects involved, is substantially this: The Legislature, at its 20th Session in 1887, for the first time, enacted a statute requiring foreign corporations desiring to transact business in this State, to secure a permit (see Ch. 128, Laws 20th Leg., Approved April 2, 1887). The penalty imposed upon a foreign corporation transacting business in the-State without a permit, was the deprivation of the right to exercise the power of eminent domain, or the rights and privileges conferred generally upon corporations. This act was declared unconstitutional, because it contained a provision prohibiting foreign corporations, holding permits, from removing suits from a state court to a federal court. Texas, etc., Co. v. Worsham, 76 Tex. 556, 13 S.W. 384. Thereafter, the 21st Legislature, at its regular session in 1889 (Ch. 79) repealed the Act of April 2,, 1887, and enacted in lieu, a measure, the penalty provisions of which forbade a foreign corporation, without a permit, to maintain any suit or action, legal or equitable,, in any of the courts of the State, upon any demand either ex contractu or ex delicto, unless, at the time the contract was entered into or the tort committed, the corporation held a permit to transact business in the State. Thus the law on the subject stood until 1931, when the 42nd Legislature amended the penal provisions of the statute to read: “No such corporation can maintain any suit or action, either legal or ■equitable, in any Court of this State upon any demand, whether arising out of contract or tort, unless at the time such contract was made, or tort committed, the corporation had filed its articles of incorporation under the provisions of this Chapter. If any corporation shall transact intrastate business in Texas without first having obtained a permit under the provisions of this ■Chapter such corporation shall forfeit to the State of Texas not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars for each month or fraction thereof it shall transact such business without a permit as required hereunder, to be recovered in a suit to be ■brought by the Attorney General in Travis County, Texas, and the State shall have a lien on all properties of the corporation for said penalties and any corporation may be enjoined by the Attorney General when transacting such business without a permit as required hereunder.” See Art. 1536, R. ■C.S., Vernon’s Ann.Civ.St. art. 1536.

Although the law regulating venue •of suits against foreign corporations doing business in the State has been amended and codified a number of times (see Ch. 34, Gen.Laws, 14th Leg., Approved March 21, 1874; also Ch. 87, Gen.Laws, same session; Subd. 21 of Art. 1198, Codification of 1879; Ch. 83, Gen.Laws, 19th Leg., Approved March 31, 1885; Amended by 20th Leg., Act Approved April 4, 1887, appearing as Subd. 25 of Art. 1194, Codification of 1895; as Subd. 28 of Art. 1830, Codification of 1911, and in the present statute, •as Subd. 27 of Art. 1995), we think it significant that, throughout the legislative history of the two subjects mentioned, no purpose has been manifested to deprive a foreign corporation, doing business in the State without a permit, of the right to urge a plea of privilege to be sued in the county where it transacted business, or of any other available defense. As the Legislature has not seen fit to do so, clearly a court is not authorized to add to the penalties prescribed by the Legislature for failure to comply with the permit law, the additional penalty of depriving a foreign corporation of this valuable defensive right.

For the reasons stated, we do not think the court erred in sustaining the plea of privilege and in changing the venue of the cause, therefore its judgment is affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    STONUM et ux. v. SCHULTZ et al.
    No. 10976.
    Court of Civil Appeals of Texas. Galveston.
    March 21, 1940.

      Edward S. Boyles, Bruce Billingsley, and Willard L. Russell, all of Houston, for appellants.
    Moore & Daugherty, of Houston, for ap-pellees.
   GRAVES, Justice.

This appeal by H. P. Stonum and wife, Helen T. Stonum, only, out of several parties defendant who made common cause below, as appellants, is from a judgment of the 80th District Court of Harris County, sitting without a jury, denying appellants any right, title, or interest in Lot 11, Block 111, of the. City of South Houston in Harris County, Texas, as against the claims of ownership of such land by Bertha Anna Schultz and Mrs. Frances Heiman, ap-pellees herein, and vesting title to and possession of such land in the appellees as against appellants’ declared-upon claims of title thereto in themselves.

In support of its decree, the court originally filed findings of fact and conclusions of law, in so far as deemed now material, as follows:

“Findings of Fact.
“(1) That in consideration of $90, on September 14, 1909, Western Land Corporation executed and delivered to Fritz H. Schultz a deed conveying Lot 11, Block 111, City of South Houston, Harris County, Texas.
“(2) That Fritz Schultz was married to plaintiff, Bertha Anna Schultz, prior to September 14, 1909.
“(3) Fritz H. Schultz died intestate on December 11, 1921, and was survived by his widow, Bertha Anna Schultz, and his only child, Mrs. Frances Heiman.
“(4) Fritz H. Schultz left no debts and there was no administration on his estate, and no necessity therefor.
“(5) That the deed of Western Land Corporation to Fritz H. Schultz covering Lot 11, Block 111, City of South Houston, Harris County, Texas, was lost by Mrs. Bertha Anna Schultz during the year 1923, or shortly thereafter.
“(6) That, after loss of the aforesaid deed in 1923, plaintiffs have searched for the deed with diligence and have been unable to find same.
“(7) That on April 1, 1937, Bertha Anna Schultz, Mrs. Frances Heiman,; joined by her husband, George W. Heiman, executed and delivered to W. Blair Scott an oil, gas and mining lease covering Lot 11, Block 111, City of South Houston, Harris County, Texas, which is recorded in Volume 294, Page 336, of the Deed Records of Harris County, Texas.
“(8) That on February 15, 1911, Western Land Corporation executed and delivered to South Texas Mortgage Company a deed specifically describing certain lots in City of South Houston, but such deed did not include by its specific description Lot 11, Block 111, the land in controversy; although the' deed did recite: ‘Any and all lands and interest in lands belonging to Western Land Corporation in Harris County, Texas.’
“(9) That on December 19, 1913, South Texas Mortgage Company conveyed to Dumont Realty Company ‘all and singular all of the real property and real estate of any and all kinds now owned, held or claimed by the South Texas Mortgage Company in Harris County, Texas.’
“(10) That on September 16, 1919, Dumont Realty Company executed a deed in favor of Texas Oil Producers Company describing therein, among other lands, Lot 11, Block 111, City of South Houston.
“(11) That thereafter there is a regular chain of conveyances out of Texas Oil Producers Company into Helen T. Stonum, each deed describing Lot 11, Block 111, City of South Houston, Harris County, Texas, or referring to some instrument that describes same.
“(12) That on September 2, 1934, H. P. Stonum and wife, Helen T. Stonum, executed and delivered to Ralph A. Johnston an oil, gas and mining lease describing therein Lot 11, Block 111, City of South Houston, Harris County, Texas, which lease was later assigned to Stanolind Oil & Gas Company.
“(13) That on October 1, 1935, H. P. Stonum and wife, Helen T. Stonum, executed and delivered to Inter-State Royalty Corporation, Ltd., a deed purporting to convey one-half (⅛) mineral interest in various tracts, including Lot 11, Block 111, City of South Houston, Harris County, Texas; and the consideration as to Lot 11, Block 111, the land in controversy, was Eighty Dollars.
“Conclusions of Law.
“(1) The common source of title of both plaintiffs and defendants, was by agreement of the parties Western Land Corporation.
“(2) That the deed of Western Land Corporation to Fritz H. Schultz, dated September 14, 1909, passed title to Lot 11, Block 111, City of South Houston, Harris County, Texas.
“(3) That Bertha Anna Schultz, widow of Fritz H. Schultz, and Mrs. Frances Heiman, the only child of Fritz H. Schultz, inherited from Fritz H. Schultz the aforesaid property.
“(4) That the deed of Western Land Corporation to South Texas Mortgage Company, dated February 15, 1911, purporting to convey ‘any and all lands and interest in lands belonging to Western Land Corporation in Harris County, Texas’, did not convey Lot 11, Block 111, City of South Houston, Harris County, Texas.
“(5) That the deed of South Texas Mortgage Company to Dumont Realty Company conveying ‘all and singular all of the real property and real estate of any and all kinds now owned, held or claimed by South Texas Mortgage Company in Harris County, Texas’, did not convey Lot 11, Block 111, City of South Houston, Harris County, Texas.
“(6) Since the defendants predicate their title on the above mentioned deed of Western Land Corporation to South Texas Mortgage Company and the deed of South Texas Mortgage Company to Dumont Realty Company, which did not pass title to the property in controversy on account of the previous conveyance by Western Land Corporation to Fritz H. Schultz, de-1 fendants therefore failed to show any title to the land in controversy.”

The quoted findings of fact were not only made at appellants’ request, but additional ones were likewise added thereto ás Nos. 14 to 37, inclusive; since, in the main, these go largely into evidentiary details, such as specifying the whole course of appellants’ chain of title, with copies of some of the instruments themselves, it is deemed unnecessary .to either quote or make a résumé of them here; their tenor and purport, as well as the objective thereof, evidently was to lay a full factual-basis for appellants’ attack by way of this appeal upon the determinative conclusions of law of the learned trial court, to-wit, Nos. (2), (4), and (5), especially.

After careful consideration of the very able presentment by appellants of that attack, it is this court’s conclusion that it must fail — that, indeed, the dominating question of law therein argued has been foreclosed against appellants in this court’s holding as to the legal effect of the same instruments, on analogous facts to those involved here, in Miller v. Pullman, Tex.Civ.App., 72 S.W.2d 379, writ refused.

With much courtesy and earnestness appellants thus invite this court to now overrule that former adverse determination: “We recognize that this Honorable Court has, in Miller v. Pullman, 72 S.W.2d 379, held that the general warranty deeds from Western Land Corporation to South Texas Mortgage Company and from South Texas Mortgage Company to Dumont Realty Company are quit-claim deeds, in spite of their covenants of general warranty. We. can only urge this Court that it reconsider on the authorities herein presented ; that to excise from the deed whose description is sufficient to pass title the warranties specifically written therein cannot fail to unsettle, throughout the entire State of Texas, the titles of bona fide purchasers for value, without notice, who, as in the case at bar, relied upon such warranties as constituting a chain of title sufficient to protect them against the secret claims of those who, many years later, might attempt to nullify their vested right.”

The vice in this suggestion is thought to be two-fold: (1) As indicated in the citation, the Supreme Court refused a writ ¡of error in that cause at a time when that action constituted an approval of this court’s opinion; (2) the rule therein declared had already been established by other authorities this court would likewise have no power to nullify. Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Houston Oil Company v. Niles, Tex.Com.App., 255 S.W. 604.

In other words, the appellants’ efforts to overturn that holding rest upon their view that the covenants of general warranty in the deeds down under which they held relieve those deeds from being quitclaims, with the consequent legal effect given them by this court in the Miller case, and that such a definite credit should now be' given them here, notwithstanding that prior classification of them. But it is not perceived how that may be done, when the law is equally well settled with us to the effect that such mere covenants of warranty amount at most to collateral contracts or undertakings between the parties thereto, and their privies, and neither constitute a part of the conveyance itself, nor strengthen .or enlarge the title thereby conveyed; Richardson v. Levi, 67 Tex. 359, 366, 3 S.W. 444; 12 Tex.Jur., pp. 22, 23.

It would serve no useful purpose to restate the evidence upon which this judgment was rendered, since the essential facts forming its basis are reflected in the quoted findings, which have not been in any material respect successfully attacked.

Nor to reconsider the rationale, upon which the cited holdings of our Supreme Court, on essentially the same situations, have been rested; if the resulting rules of property, which appellants are pleased to term “grievous and widespread wrongs which will result from the court-made law that covenants of general warranty made in deeds of general description be ruthlessly shorn therefrom”, should be changed or abrogated, the appeal is obviously properly addressable to the Legislature, and not to the courts—at any rate, not to those of intermediate jurisdiction.

It seems to this court an easy and( natural, deduction from facts of quite simple character for the learned trial court to, have declared—following its own like de-( termination originally in Miller v. Pullman, supra—that, the Western Land Corporation, having in fact, in September of 1909, conveyed this land itself to Schultz, whether the deed thereto was recorded or not, it no longer belonged to that corporation, hence its subsequent instrument in 1911 merely conveying “any and all lands and interest in lands belonging to Western Land Corporation in Harris County, Texas”, did not in effect convey this particular tract, or anything else, except a chance at the title to whatever land the Western Land Corporation might still own.

Nor are appellants’ claims to have been innocent purchasers of this property, under their declared-upon instruments, any better founded; the statute they appealed to, R.S. Article 6627, is inapplicable, because, in the first place, there is in this record neither finding nor proof that they bought or purported to buy without notice of this prior deed to Schultz of 1909; but if there had been, under this court’s holding in the Miller v. Pullman case, they still would not have been entitled to protection as innocent purchasers, for the reason that the residuum-like instruments under which they sought to claim this property amounted to merely a quit-claim of something that had already been conveyed away out of their chains of title; so that, even though they did pay value for those instruments, and despite the fact that they carried such warranty, they still could not qualify under them, as subsequent bona fide purchasers of this particular property for value.

Neither is it thought the trial court erred in allowing the appellees to prove by parol testimony the execution and delivery of the deed from Western Land Corporation to Schultz; this, for the reason that they had sued in trespass to try title, declaring themselves to be the owners in fee simple of this particular land, which the appellants answered only by general demurrer, general denial, and plea of not guilty. Brownfield v. Brabson, Tex.Civ.App., 231 S.W. 491, 493; Edwards v. Barwise, 69 Tex. 84, 6 S.W. 677; Houston Oil Co. v. Reese Corriher, Tex.Civ.App. 181 S.W. 745; Ford v. Thompkins, Tex.Civ.App., 8 S.W.2d 782; Masterson v. Harris County Ship Channel, Tex.Com.App., 15 S.W.2d 1011, 67 A.L.R. 1324; Meade v. Logan, Tex.Civ.App., 110 S.W. 188; Parks v. Caudle, 58 Tex. 216; Pierce v. Texas Rice Co., 52 Tex.Civ.App. 205, 114 S.W. 857; Simpson v. Edens, 14 Tex.Civ.App. 235, 38 S.W. 474.

N Since the supporting facts for this conclusion are likewise ■ presented in the quoted findings, it is deemed unnecessary to repeat them; suffice it to say that the testimony of C. S. Wood and J. F. Minton, President and Secretary, respectively, pf that corporation, was to the effect that its records, which were kept under their supervision, fully and competently supported the finding that such deed was in fact both executed and delivered by that corporation to Schultz, in all respects as declared upon by the appellees.

Upon like considerations, the deed-book of that corporation, showing such execution and delivery of that deed to Schultz for the land here involved, was admissible upon the testimony of President Wood that such entries therein had been made under his supervision, that he had kept the book in his custody, and that these entries had been made therein in the regular course of the corporation’s business, concurrently with the transactions the deed reflected. Heid Bros. v. Commercial Nat’l. Bank, Tex.Com.App., 240 S.W. 908, 24 A.L.R. 904; Flynn v. Citizens’ Nat. Bank, Tex.Civ.App., 31 S.W.2d 485; Indemnity Ins. Co. v. Jago, Tex.Civ.App., 49 S.W.2d 943; Joy v. Fakes Furniture Co., Tex.Civ.App, 286 S.W. 611.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.


author: McClendon, chief justice.

text:
    FISHER v. RAILROAD COMMISSION et al.
    No. 8942.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1940.
    Rehearing Denied April 10, 1940.
    A. M. Felts, of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Glenn R. Lewis and Geo, W. Barcus, Asst. Attys. Gen, for appellees.
   McClendon, chief justice.

Fisher brought suit against the Railroad Commission, its members, and other state officials and employees, to enjoin interference with his operation of a fleet of ten trucks over the highways of Texas, “in the transportation of merchandise for hire exclusively in interstate commerce by motor vehicle.” The defendants admitted the issuance to Fisher by the Commission of a common carrier certificate, authorizing the use of certain state highways (noted below) ; but alleged that Fisher was exceeding his schedule allowance under his certificate and was also operating over other highways than those therein authorized. Defendants thereupon sought to enjoin Fisher from operating in the named respects in excess of his certificate authorization. In a trial to the court without a jury, Fisher was denied the injunctive relief he sought, and was perpetually enjoined from operating over Highways 2 and 6 south of Dallas; subject, however, to his right to apply to the Commission for a certificate authorizing operation over said portions of said highways.

The facts are without dispute. The only authority which Fisher had from the Commission to operate over Texas highways was under certificate No. 2787, originally issued March 20, 1936. The highways over which he was authorized to operate were thus designated in the certificate; “State Highway No. 3 from San Antonio to Van Horn, and from Van Horn West to the Texas-New Mexico State Line; and from San Antonio North over any highway or route lying entirely West of State Highways No. 2 and 6 and all portions thereof, and over either State Highways Nos. 6, 40 and 10' lying North of Fort Worth and Dallas to the State Line.”

Fisher urges two contentions in this •court:

1. Under the “grandfather” clause •of the Federal Motor Carrier Act 1935, 49 U.S.C. § 306, 49 U.S.C.A. § 306, he was not required to obtain a certificate or other authorization from the Texas Commission in order to operate over the Texas highways in exclusively interstate commerce. This question has been determined adversely to appellant’s contention in McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164; Winton v. Thompson, Tex.Civ.App., 123 S.W.2d 951, error refused; Railroad Com. v. Tips, Tex.Civ.App., 130 S.W.2d 1078.

2. Under the above wording of his certificate, either (1) he is expressly authorized to operate over State Highways 2 and 6 south of Dallas, or (2) such wording is at least ambiguous in that regard and he is entitled to the benefit of any doubtful meaning in the language employed by the Commission. This contention is manifestly without merit. There is no ambiguity whatever in the language employed; which clearly excludes operation on Highways 2 and 6 south of Dallas.

The trial court’s judgment is affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    FARIS et al. v. FARIS.
    No. 12837.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1940.
    Rehearing Denied March 30, 1940.
    Cedric G. Hamlin, of Dallas, for appellants.
    George Ledbetter, of Ennis, for appel-lee,
   YOUNG, Justice.

This appeal is from an order of a district court of Dallas County, denying probate of the will of George Alexander Fa-ris as a muniment of title; the county court having previously admitted said will to probate for such purpose.

The parties hereto are, Ellsworth Eugene Faris, Mrs. Cressie Lake Card and Cecil Faris, children of George Alexander Faris, who died March 1, 1918, and Mrs. Sophia Jane Faris, who in turn departed this life January 25, 1937. The father, George A. Faris, left a will dated September 21, 1916, leaving his entire estate to his wife (Mrs. Sophia Faris), naming her as sole executrix without bond. This will, the mother and sole legatee placed in her lock box, where it remained until after her death, being withdrawn shortly thereafter by proponent, Ellsworth Eugene Fa-ris, and offered for probate as a muniment of title, in connection with application for probate of the will of Mrs. Sophia Faris, in which latter document, proponent was named as executor and chief beneficiary.

Shortly after the above instruments were probated by the county court, a contest was filed by Cecil Faris, on various grounds, which, upon hearing, was denied. An appeal was taken to the district court where the contest as to the will of Mrs. Sophia Faris was abandoned; the proceedings thereby narrowing to the probate, vel non, of the father’s will as a muniment of title. Said issue was tried to a jury in the district court, and, at the close of the testimony, all parties moved for instructed verdict. At this juncture, the court concluded that no issues of fact were presented and, accordingly, withdrew the cause from the jury, discharging the panel, and disposing of same as a non-jury case, no objection being taken to this procedure. The contest of Cecil Faris was upheld and the will of George Alexander Faris was denied probate as a muniment of title, from which order this appeal was taken.

The record embraces only findings of fact and conclusions of law by the trial court, which, in material part, are: (Findings of Fact) “The will of Mrs. Sophia Jane Faris, among other devises and bequests, passed the community homestead to her son, Ellsworth Eugene Faris and he was appointed sole and Independent Executor thereunder without bond. A copy of such will is attached to these Findings and Conclusions as an Exhibit. After the death of her husband, Mrs. Sophia Jane Faris took the will of the said George Alexander Faris and placed it in her lock box at the Bank, where it remained until it was withdrawn by her Executor, Ells-worth Eugene Faris, a few days after her death, and offered for probate as a muniment of title. This, for convenience, being done in the same application in which the will of the mother, Mrs. Sophia Jane Fa-ris, was offered for probate. Mrs. Cressie Lake Card admitted that she knew of the existence of her father’s will. That it was shown to her by her mother shortly after her father’s death. George Alexander Faris, before his death, told his son Ellsworth Etigene Faris that he had made a will leaving all his property to his wife, Sophia Jane Faris. Ellsworth Eugene Fa-ris knew that his father left a will and he testified that he assumed that his mother had taken care of the matter. He admitted that his brother Cecil Faris, might have told him of the existence of his father’s will shortly after the death of his father. Ellsworth Eugene Faris testified that the first time he actually saw his father’s will was when he opened his mother’s lock box after her death. Cecil Fa-ris disclaimed any right that he might have to claim as an heir or as a devisee under his mother, Mrs. Sophia Jane Faris and claimed only as an heir of George Alexander Faris, his father. Over the objection of the contestants, the court struck out all of the testimony relating to an agreement not to probate the father’s will and hence the facts relating thereto are not included in this Finding of Fact as under the ruling of the court, it would serve no useful purpose. (Conclusions of Law) I conclude as a matter of law that Mrs. Sophia Jane Faris during her lifetime, abandoned any right that she might have under the will of her deceased husband because she did not offer it for probate, although having possession thereof for a period of almost twenty years before her death. I further conclude as a matter of law that it would be against the public policy of this State to allow a will to be probated some nineteen years after the death of the testator, especially when it is shown that the party having the right to probate the same had it in possession at such time. I further conclude as a matter of law that since Mrs. Sophia Jane Faris had, at her death, abandoned any right she might have to claim any property under the will of George Alexander Faris, that she could not will or devise any property which she would have been entitled to if she had probated the will of George Alexander Faris. I further conclude as a matter of law that since Mrs. Sophia Jane Faris had abandoned her right to acquire any property through the will of George Alexander Faris, that she would not give Ellsworth Eugene Faris nor Mrs. Cressie Lake Card any of the property of George Alexander Faris as she had no right or title to said property at the time of her death by reason of the abandonment of her rights under his said will. I further conclude as a matter of law that Ellsworth Eugene Faris and Mrs. Cressie Lake Card could not claim any rights under the will of George Alexander Faris as said will had been abandoned by their testatrix and they could acquire .no greater interest than she had at the time of her death. I further conclude as a matter of law that the will of George Alex-mder Faris should not be probated.”

Cecil Faris, contestant, claimed nothing through his mother’s will, it being undisputed that he already owned the burial lot left to him therein; hence, appellants were the only beneficiaries under said instrument, the proponent (Ellsworth Eugene Faris) claiming title to the community home by virtue of clause 2 thereof,' providing: “I give, devise and bequeath to my son, Ellsworth Eugene Faris, our old family Bible and my home, 4323 San Ja-cinto Street.”

It is the contention of said proponent generally, that having offered his father’s will for probate almost immediately upon his mother’s death, and having no interest therein prior to such time, he was not in default under the terms of Art. 3326, R.S., in not sooner applying for its probate as a muniment of title to the community interest bequeathed thereby to his mother, and thence to him as de-visee under the latter’s will. It is ^apparent from the record that Mrs. Sophia Fa-ris was conclusively in default in failing to propound for probate the will of her deceased husband, within the four-year period. Art. 3326. Vestiture of title in the surviving widow of the estate bequeathed by George Alexander Faris was contingent upon the lawful probate of his will, in the absence of which, the devised property cannot be said to have passed to the legatee mentioned therein during her lifetime. To Mrs. Sophia Faris, the situation was the same as though her husband had died intestate, his estate immediately vesting in his heirs at law. Art. 3314. In other words, as found by the trial court, by reason of the abandonment by Mrs. Sophia Faris of her right to probate the will of said George Alexander Faris, she had no right, title, or interest in his estate to bequeath, except such as accrued to her in the absence of a will. Appellants can claim no greater interest under the earlier, or 1918, will than the testatrix herself possessed, and acquired by the later will, no more than was owned by the mother at the time of her death. The findings and conclusions of the trial court to this effect, as a consequence of the conclusive abandonment by Mrs. Sophia Faris of all right to probate the will in question, are, we think, sustained by the record and, therefore, binding on the parties to this appeal.

Appellants vigorously contend that they are not chargeable with the laches of their ancestor, as heirs would be in a similar case, but should properly be classified as legatees, grantees, or others taking by purchase, as illustrated by Ryan v. Texas & Pacific R. Co., 64 Tex. 239; St. Mary’s Orphan Asylum of Texas v. Masterson, 57 Tex.Civ.App. 646, 122 S.W. 587; Eubanks v. Jackson, Tex.Civ.App., 280 S.W. 243; Armstrong v. Carter, Tex.Civ.App., 291 S.W. 626, and similar decisions, all uniformly holding that, under Art. 3326, only the “default” of the party applying for the will’s probate is in issue. In the cited cases, the applicant was either a de-visee under the will sought to be probated, or a purchaser (i. e., a grantee or vendee) of such devisee. Here, appellants were neither devisees, legatees, grantees, nor purchasers, as contemplated by the adjudicated cases, but are merely devisees of a devisee. Appellants may be considered as taking by purchase under the standard rules of construction relative to wills and succession of title thereunder, but, in the case at hand, they occupy no better position than next of kin, or heirs of the mother, a proper disposition of whose rights being more appropriately controlled by Matt v. Ward, Tex.Civ.App., 255 S.W. 794, writ refused. The publisher’s headnote to this opinion fully states the holding of the Fort Worth court: “Within Vernon’s Sayles’ Ann.Civ.St.1914, art. 3248 [now 3326], prohibiting admission of will to probate more than four years after testator’s death, unless the party applying therefor was not in default in failing to present it earlier, a devisee knowing for months before her death of the existence of the will, and failing to present it for probate, her heir may not have it probated after lapse of the four years, though presenting it soon after learning of it.”

The judgment of the lower court must be affirmed.

Affirmed.


author: DUNKLIN, Chief Justice.

text:
    HESTER et ux. v. KEMPER MILITARY SCHOOL.
    No. 14061.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1940.
    J. R. Wilson, of Wichita Falls, for plaintiffs in error.
    Ewing Clagett, of Wichita Falls, for defendant in error.
   DUNKLIN, Chief Justice.

B. M. Hester and wife, Mrs. Mollie M. Hester, while residing in Wichita Falls, Texas, put their son, B. M. Hester, Jr., in the Kemper Military School, in Booneville, Missouri. At the close of the school year of 1931-1932, which was the boy’s second year in the school, there was a balance owing to the school of $339.18.

On August 28th, 1932, B. M. Hester addressed a letter to Major A. B. Bates, vice president and superintendent of the school, at Booneville, telling him that he was very anxious for his son to finish another term in the school, and that he would make a sacrifice rather than have him miss another year. In that letter, he said that he was trading off a piece of residence property that cost him $9,125, and was taking, in consideration therefor, two notes, each in the sum of $1,250, due in one and two years after date, bearing interest at the rate of 10 per cent per annum; that the notes were well secured, and the title to the property was good; that the notes would stand the closest inspection, both as to value of .the property and to validity of the title; and offering to sell the notes, in order to realize the money necessary to continue the boy in school. Major Bates then wrote Hester, calling his attention to the balance then due of $339.18, for the previous year, and that a charge for another year for the schooling would be $950, making a total of $1,289.18. He then offered to accept Hester’s note for $1,289.18, with the two $1,250 vendor’s lien notes mentioned in Hester’s letter as collateral security, provided those collateral notes were secured by first mortgage on the property mentioned in Hester’s letter.

That proposal was accepted by B. M. Hester, and pursuant thereto, he, joined by his wife, Mrs. Mollie M. Hester, executed to E. Cardwell, a resident citizen of Wichita Falls, a deed of conveyance, of date September 1st, 1932, with general warranty of title, to Lot 10, Block 78, Flo.ral Heights Addition to the City of Wichita Falls. The consideration recited in that deed was $10 and other good and valuable considerations paid by E. Cardwell, and the execution and delivery by E. Cardwell of his two promissory vendor’s lien notes, of even date with the deed, each in the sum of $1,250, payable to B. M. Hester, or order, at Wichita Falls; note No. 1 being payable one year after date, and note No. 2 payable two years after date, each note bearing 10 per cent interest from date, and containing the customary 10 per cent attorney’s fee collection clause. That deed was duly acknowledged by the grantors, in statutory form. At the same time, and as a part of the same transaction, E. Cardwell executed and delivered to B. M. Hester the two vendor’s lien notes recited in the deed, and also a deed of trust securing their payment. That deed was filed for record in the Deed Records of Wichita County, on October 11th, 1934.

B. M. Hester then executed his promissory note, of date September 6th, 1932, payable to the order of the Kemper Military School, Booneville, Missouri, for the sum of $1,289.18, payable June 1st, 1933, with interest from date at the rate of eight per cent per annum, reciting the hypothecation of Cardwell’s two vendor’s lien notes as collateral security therefor. That note, together with Cardwell’s two vendor’s lien notes, and the deed of trust executed to secure the same, were all mailed to Major Bates on September 9th, 1932, and on September 12th, Major Bates, in a letter to Hester, acknowledged receipt of those instruments, saying that they were received in payment of the balance due of $339.18, for the preceding school year, and a charge of $950 for the next succeeding school year.

The boy then finished his third year in the school.

Nothing was paid on either the principal or the collateral notes.

On September 1st, 1934, E. Cardwell executed his note, payable to B. M. Hester or order, in the sum of $3,000, reciting that it was in renewal of his two original vendor’s lien notes for $1,250. each, and secured by a vendor’s lien reserved in said deed to him by B. M. Hester and wife, and that the $3,000 renewal note was to cover the principal and interest then owing on those two notes. That note was due and payable September 1st, 1935; and on the back thereof was thi's endorsement:

“Vendor’s Lien Note. For Value Received I hereby sell, transfer an¿ assign to Kemper Military School as Collateral the within note, together with the vendor’s lien and deed of trust lien on the property securing same, and as endorser, I guarantee the payment of the within note at maturity, or on demand at any time after maturity, waiving demand, protest and notice of non-payment thereof.
“(Signed) B. M. Hester.”

On the same date E. Cardwell executed a renewal of the former deed of trust theretofore given to secure the two original vendor’s lien notes. Those renewals were then delivered to B. M. Hester, who, on September 6th, 1934, executed a renewal of his. original note, in the sum of $1,503.66, payable September 6th, 1935, and reciting the hypothecation of the renewal note and deed of trust of E. Cardwell, as collateral security therefor. All those renewals were then mailed to Major Bates.

All of the negotiations heretofore related were by correspondence between B. M. Hester, at his home in Wichita Falls,. Texas, and Major Bates, in Booneville, Missouri; the latter having never inspected the property covered by the lien and having no representative in Wichita Falls to act for the school in those negotiations.

Nothing having been paid on any of the renewal notes, the Kemper Military School, a foreign corporation, instituted this suit, on February 17th, 1937, against B. M. Hester and wife, Mollie M. Hester, and E„ Cardwell, for personal judgment against B. M. Hester and E. Cardwell, for the amount due on those renewal notes, according to their legal tenor and effect, and against all of the defendants for foreclosure of the vendor’s lien and deed of trust lien on the above described property.

Neither B. M. Hester nor E. Cardwell filed any answer to plaintiff’s petition, but Mrs. Mollie M. Hester filed her answer, alleging that the property covered by the deed to E. Cardwell has been the 'homestead and used and occupied as such by her "and her husband, B. M. Hester, for approximately 17 years; that said deed was intended as a mortgage, and so understood between all the parties thereto, and that she had never received any consideration therefor, and that said deed was therefore void. And further, that she had never represented to any one that she was making an absolute deed. The answer concluded with a prayer that the purported liens on her said homestead be removed as a cloud upon her title.

In reply thereto, plaintiff filed a first supplemental petition, reciting the negotiations noted above, which culminated in the execution and delivery to it of the original notes and deeds of trust above referred to, and the renewal thereof, all of which were accepted by plaintiff in good faith and without knowledge or notice of the facts relied on by Mrs. Hester to defeat the lien; that plaintiff is an innocent holder of said note and lien securing it, and became the legal and equitable owner and holder thereof for value, without notice of any infirmity in said transaction. It was further alleged' that all the defendants knew at the time of' said transaction that plaintiff was an out of the state concern and would rely upon the representations of Hester, which induced the acceptance of said instrument; and that if, as alleged by Mrs. Hester, the property was, at the time, the homestead of her-, self and family and the deed intended merely as a mortgage, then all of said transactions were false and fraudulently made for the purpose of defrauding the plaintiff out of the said sum of $1,289.18, and defendant Mollie M. Hester' is estopped from now asserting that the deed was intended only as a mortgage. Plaintiff further alleged that the renewal notes were executed and delivered to plaintiff after the renewal deed of trust had been duly filed in the Deed of Trust Records of Wichita County, Texas.

The trial of the case was to a jury, and upon a hearing it was agreed between the parties that the property in question was used and occupied as and was the homestead of B. M. Hester and wife at the time of their execution of the deed to Cardwell, and that said property is still used and occupied by them as their homestead.

The undisputed testimony of Major A. B. Bates, as shown in his depositions, was that he was vice president and treasurer of the Kemper Military School and,, in behalf of that school, conducted all of the ¡negotiakions re’cited above, culminating in the acceptance of the notes; that he, in good faith, believed and relied upon the truth of all the representations made by B. M. Hester, and by E. Cardwell in the instruments they executed; that the collateral notes, both original and renewal, were secured by valid liens upon the property, and he was induced thereby to extend credit for the balance owing by B. M. Hester for the boyis second school year, and to give him the schooling for the third year; that he had accepted the collateral notes before their maturity, without any notice of any vice or infirmity therein. Witness further stated that since the maturity of the original notes, he had written B. M. Hester some eighteen letters, and until Mrs. Hester filed her answer to the suit, on March 2nd, 1937, he had never heard of any claim made that the property was the homestead of herself and husband, or that the deed given by her and her husband was merely a simulated transaction and intended Only as a mortgage.

Mrs. Hester testified that she signed the deed to Cardwell under the belief that it was a kind of a mortgage, and just depended on her husband, and thought that her husband would take care'of it, but knew that it was for the purpose of raising money fo pay for her son’s schooling, but she did not claim that she notified any one, even the notary who took her. acknowledgment to the deed, that that was her understanding.

The case was tried to a jury, and the following are issues submitted and the jury’s findings thereon:

“No. 1. Do you find from a preponderance of the evidence that plaintiff, Kemper Military School, was an innocent holder of the two collateral notes for $1250.00 each dated September 1st, 1932, against Lot 1Ó, Block 78, Floral Heights Addition to the City of' Wichita Falls, Texas? Answer 'yes’ or 'no’. Answer: Yes.
“No. 2. Do you find from a preponderance of the evidence' that • Mrs. Hester knew at the time she joined her husband in the execution of the deed to E. Card-well that the vendor’s lien notes named in the deed were to be used to finance another year’s schooling for B. M. Hester, Jr. at Kemper Military School? Answer ‘yes’ or ‘no’. Answer: Yes.
“No. 3. Do you find from a preponderance of the evidence that Mrs. B. M. Hester represented to the plaintiff that said notes executed by E. Cardwell were valid liens on the property in question? Answer ‘yes’ or ‘no’. Answer: Yes.
“No. 4. If you have answered ‘no’ to the above issue, you need not answer this; but if you have answered same ‘yes’, then,
“Do you find from a preponderance of the evidence that Kemper Military School relied upon such representations, if any, in accepting the collateral notes ? Answer ‘yes’ or ‘no’. Answer: Yes.”

Judgment was rendered in favor of the plaintiff against defendant B. M. Hester for the sum of $2,338.90, with ’ interest from date at the rate of eight per cent per annum, and costs of suit, with a foreclosure of the vendor’s lien as it existed on September 1st, 1932, and now exists, on lot 10, block 78, Floral Heights Addition to the City of Wichita Falls, as against all the defendants, and that said property be sold under execution and the amount realized from said sale be applied to the satisfaction of said judgment, and if there be an excess amount more than sufficient for that purpose, that the same be paid over to the defendants B. M. Hester and Mollie M. Hester. The judgment further recites that the defendants B. M. Hester and E. Cardwell, though duly cited, had failed to answer, and that as to them the judgment was by default

From that judgment Mrs. B. M. Hester has prosecuted this writ of error.

The three propositions presented in briefs of plaintiffs in error are as follows:

“1. Where the husband and wife reside in a home at the time of the execution of the mortgage, and where they continue to reside in it as their homestead, no representations by the husband and wife that the purported lien executed on the premises is valid, and therefore the wife is not estopped from pleading the invalidity of the lien.
“2. The wife is not estopped to plead the invalidity of the lien on the homestead unless she, knowingly, by act or deed, induced the holder of the purported lien .to take such lien and .represented that such lien was valid.
“3. In order for the defendant in error to establish innocent purchaser of the two $1,250.00 purported vendor’s lien notes, it is necessary that a valid consideration be then paid for said notes, and not a future nor past consideration be paid.”

Article 16, section 50, Constitution of Texas, Vernon’s Ann.St., reads: “The homestead of a family shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, * * * nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law. No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, .shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.”

Eylar v. Eylar, 60 Tex. 315, was a suit by J. F. Eylar and wife to cancel a deed made by them to O. A. Eylar, on the ground that same was intended as a mortgage to secure payment of a debt then owing by the grantors. After he had acquired that deed, O. A. Eylar conveyed the property to Mrs. Ann A. Eylar, who paid a valuable consideration therefor, without actual notice that the deed to O. A. Eylar was a simulated sale, intended to operate only as a mortgage, and it was held that she was entitled to protection as an innocent purchaser, notwithstanding >the fact that when J. F. Eylar and wife executed the deed to O. A. Eylar, he was in open possession of the property as his business homestead, and therefore within the protection of Article 16, section 50, of the Constitution of Texas. In the opinion this was said:

“It would seem that the sole office which possession performs, in the matter of notice, is to put -a person desiring to purchase upon inquiry, and that it has no effect in determining what the inquiry shall be, or of whom it shall be made.
“The policy of the law, as evidenced by our statutes, requires all conveyances of land or interests therein for a term longer than one year to be evidenced by writing, and when parties place, in this the most certain and enduring form, the evidence of their right, they ought to be held, so far as third persons are concerned, to have therein spoken truly in respect to the title to the land to which the conveyance relates.
“That all persons who may deal with persons claiming land may have the means of knowing in whom titles to land rest, and that no one may buy what appears to be a good title, when another person may have better right not made public, the law requires all persons, for the protection of innocent purchasers and creditors, to register their titles to land.
“Such being the case, can it be said, even if possession is sufficient in all cases to put purchasers upon inquiry, that such inquiry is not prosecuted sufficiently far, when the person who desires to buy examines the records of the county and finds on record a deed from the person in possession to the person who offers to sell, and who under that deed asserts title.
“If the inquiry is prosecuted to the highest source which the law of the land declares shall exist for the determination of title, and to the source which the parties have created as the highest evidence of their respective rights, can it be true that it is further necessary to examine sources inferior and make inquiry as to whether or not there are claims, or even rights, in others not evidenced as the law requires, or otherwise the purchaser be charged with constructive notice of secret vices in the title which he buys.
* * *
“By the deed in question, the parties who now assert claim through a secret agreement declared in the most solemn form that the land in controversy was the property of O. A. Eylar; they permitted that declaration to be placed on record for the very purpose of giving information to all person's as to the true ownership.
“Such being true, can the simple fact that they remained -in possession of the land which they had declared belonged to another, which they might lawfully do as the tenants at sufferance or otherwise of such other person, make it requisite for any person who may desire to buy from the person whom they have so declared to be the owner, to inquire of themselves whether or not they had uttered the truth in their deed, whether or not their own declaration was false?
“We are of the opinion, under the facts in this case, that a purchaser from O. A. Eylar was not bound to inquire of the appellees what right they had in the land; that the inquiry was sufficiently prosecuted ; prosecuted as far as a prudent man, having a due regard to the rights of others, and to his own protection, would be bound to prosecute it, when he looked to the record and there found that O. A. Eylar was declared by the very persons in possesion to be the true and absolute owner of the land.”

Many subsequent decisions have followed that announcement in the Eylar case, among which are: Love v. Breedlove, 75 Tex. 649, 13 S.W. 222; Graves v. Kinney, 95 Tex. 210, 66 S.W. 293; Still v. Moffett, Tex.Civ.App., 93 S.W.2d 756; Strauss v. Friedman, Tex.Civ.App., 109 S.W.2d 553; Ramirez v. Smith, 94 Tex. 184, 59 S.W. 258; Guaranty Bond State Bank v. Kelley, Tex.Com.App., 13 S.W.2d 69; Little v. Shields, Tex.Com.App., 63 S.W.2d 363; Noel v. Clark, 25 Tex.Civ.App. 136, 60 S.W. 356, writ refused; National Bond & Mortgage Corp. v. Davis, Tex.Com.App., 60 S.W.2d 429. And in the case last cited it was said that the decision in Eylar v. Eylar, supra, had become a rule of .property.

Texas Land § Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12, 13 was a suit to foreclose a mortgage given by a husband and wife on property they were then occupying and using as their homestead. To defeat the homestead defense, the lender "relied upon the declaration of the borrowers contained in the mortgage they gave, that the property was not claimed by them as their homestead. In the opinion, written by Judge Stayton, who was also author of the opinion in the Eylar case, this was said:

“The fact of actual possession and use, as the home of the family, was one against which the lender could not shut its eyes; and this fact, coupled with the interest held by the borrower in the land, made the property homestead in fact and in law, on which the constitution declares no lien, such as claimed in this case, can exist.
“Every person dealing with land must take notice of an actual, open, and exclusive possession; and where this, concurring with interest in the possessor, makes it homestead, the' lender stands charged with notice of that fact, it matters not what declarations to the contrary the borrower may make.
“It has been held that one remaining in possession of land, after having executed and permitted to be placed on record an absolute conveyance, could not rely upon his possession as notice of a secret agreement that the absolute conveyance, as between the parties to it, was only intended as a mortgage, and thus defeat the right of a subsequent innocent purchaser.
“That, however, is not this case. Here nothing was hidden; possession was open, certain, and in character in no respect ambiguous. It was such as gave homestead right, and the lender cannot be heard to say that it did not know it.
“The constitution forbidding the fixing on the homestead of liens other than such as are thereby expressly permitted, no es-toppel can arise in favor of a lender, who has attempted to secure a lien on homestead in actual use and possession of the family, based on declarations of the husband and wife, made orally or in writing, contrary to • the • fact. To hold otherwise would practically abrogate the constitution.
“If property be homestead in fact and law, lenders' must understand that liens cannot be fixed'upon it, and that declarations of husband and wife to the contrary, however máde, must not be relied upon. They must further understand that no designation of homestead, contrary to the fact, will enable parties to evade the law, and incumber'homesteads with liens forbidden by the constitution. Mortgage Co. v. Norton, 71 Tex. 683, 10 S.W. 301; Pellat v. Decker, 72 Tex. [578], 581, 10 S.W. 696; Kempner v. Comer, 73 Tex. [196], 203, 11 S.W. 194.”

Those authorities clearly distinguish the rights of a subsequent innocent purchaser of the lien or property from the rights of the lender who takes a mortgage to secure his loan, , while the-borrowers are openly occupying the property as their homestead, and against which actual possession and use the lender cannot close his eyes.

The following decisions are cited by plaintiff in error: Bayless v. Guthrie, Tex.Com.App., 235 S.W. 843; Hutchenrider v. Smith, Tex.Com.App., 242 S.W. 204; Llewellyn v. First Natl. Bank, Tex.Civ.App., 265 S.W. 222; Mosher Steel & Machinery Co. v. Nash, Tex.Civ.App., 6 S.W.2d 158. Those decisions, like the Blalock case, are distinguishable from the Eylar case and the case - at bar on the facts involved.

The findings of the jury, which are supported by competent' evidence, that plaintiff was an -'innocent purchaser of the two collateral notes in controversy before maturity for a valuable consideration paid, support the judgment rendered. And it makes no difference that B. M. Hester’s original principal note for $1,289.18 and the renewal thereof included the amount due for the preceding school year, as well as the amount to become due fo.r the next. succeeding year; since a past due indebtedness is - a sufficient consideration for a negotiable -instrument. Arts 5933 and 5935, Vernon’s Tex.Civ.St. And the notes given by E. Cardwell to B. M. Hester and acquired by plaintiff as a holder in due course, were hypothecated for that indebtedness.

Nor did Mrs. Hester file a plea of lack of consideration - for those principal notes.

For the reasons noted, all assignments of error are overruled, and the judgment of the trial court is affirmed as to all parties to the suit.