author: CARL, J.

text:
    CARLA LAND & IRRIGATION CO. v. ASHERTON STATE BANK et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.)
    1. Frauds, Statute of (§ 17) — Promise to Answer fob Debt of Another.
    An oral agreement by defendant that, if plaintiff bank would let a third’ person have some money, defendant would guarantee payment, in pursuance of which the bank let the third person have the money and took his note therefor, was unenforceable, under the statute of frauds.
    [Ed. Note. — For other'cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dec. Dig. § 17.]
    2. Corporations (§ 484) — Corporate Powers — Contract of Suretyship.
    Under Rev. St. 1911, art. 1164, providing that no corporation shall use its property or assets for any purpose other than to accomplish the objects of its creation, a land and irrigation company was without authority to agree to guarantee and secure the debt of a third person.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1815; Dec. Dig. § 484.]
    Appeal from Dimmit County Court; J. O. Rouse, Judge.
    Action by the Asherton State Bank and others against G. W. Vaughn and the Carla Land & Irrigation Company. From a judgment for plaintiff, defendants appeal.
    Judgment as to defendant Vaughn affirmed, but as to Carla Land & Irrigation Company judgment reversed and rendered in its favor.
    A. L. Matlock and Butler L. Knight, both, of San Antonio, for appellants. W. A. H. Miller, of Asherton, for appellee.

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

The Asherton State Bank sued G. W. Vaughn and Carla Land & Irrigation Company, a corporation, and alleged that on or about April 20, 1912, said Carla Land & Irrigation Company, verbally acting through Carl Albrecht, treasurer of said company, instructed or requested plaintiff (bank) to let defendant G. W. Vaughn have some money, stating that said Carla Land & Irrigation Company would guarantee the payment of any sum of money said plaintiff loaned or let said defendant Vaughn have; that thereafter, on or about April 25, 1912, the plaintiff furnished said Vaughn with $165, for which said Vaughn executed his note; and on or about May 14, 1912, relying on the guaranty of said Carla Land & Irrigation Company, plaintiff advanced Vaughn $100. The first note matured May 25, 1912, and the second 30 days after its date. Sixty-five dollars were paid on the first note, and nothing further. By exception and special pleas, the Carla Land & Irrigation Company raised the issue that same was in contravention of the statute of frauds requiring a promise to answer for debt or default of another to be in writing and signed by the party to be charged, and further that the corporation did not authorize the same. The cause was tried by the court, and judgment rendered for the plaintiff against both defendants, and Carla Land & Irrigation Company has appealed.

There are two reasons why this judgment cannot stand as rendered:

1. It is clearly within the statute of frauds, and the Carla Land & Irrigation Company’s pleas should have been sustained. We have recently been called upon to review a similar ease in this court where a full discussion will appear. Henry Hein, Sr., v. John Finnigan Co. from Webb county, 163 S. W. 124. The Supreme Court has passed upon this question in a way such as to remove any doubt in the case of Brown v. Farmers' & Merchants' National Bank, 88 Tex. 265, 31 S. W. 285, 33 L. R. A. 359.

2. Even if Carl Albrecht did guarantee the debt, it was not authorized by the corporation. This corporation was not authorized to go security, and the directors did not authorize Albrecht to make the debt. Article 1164 of the Revised Civil Statutes of 1911 is as follows: “No corporation, domestic or foreign, doing business in this state, shall employ or use its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation or those permitted-by law.” The law defines and limits the manner in which a corporation can.bind itself, and restricts the manner in which moneyed obligations may be incurred. The matter of going security was not within the scope of Albrecht’s authority. Fidelity & Deposit Co. v. Bank, 48 Tex. Civ. App. 301, 106 S. W. 784; Deaton v. Harvester Co., 47 Tex. Civ. App. 267, 105 S. W. 556; Bowman v. Lumber Co., 139 S. W. 618; Railroad Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 53 Am. St. Rep. 778; Franco-Texan Land Co. v. McCormick, 85 Tex. 421, 23 S. W. 123, 34 Am. St. Rep. 815.

In view of what has been said, the judgment of the lower court will be reversed, and judgment here rendered that the plaintiff take nothing as to Carla Land & Irrigation Co.; but as to Vaughn the judgment will be affirmed, the costs of the appeal being adjudged against appellee Asherton State Bank.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    MUTUAL LIFE INS. ASS'N OF DONLEY COUNTY v. RHODERICK.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.)
    1.Appeal and Error (§ 699) — Review—Assignments op Ekrob.
    Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 1971, requires the charge to be in writing and signed by the judge, and provides that, after the evidence has been concluded, the charge shall .be submitted to the parties for exception, and a reasonable time given to examine and present objections to it, which objections shall, “in every instance,” be presented to the court before the charge is read to the jury, and all objections not so presented shall be waived. Held that recitals in the record showing that appellant in open court, “prior to the reading of the main charge herein, excepts thereto as follows,” stating the objections to the charge, and “each and all of the above exceptions to said charge being overruled, defendant in open court excepts,” followed by a recital, “Refused,” signed by the judge, were insufficient to authorize a review of álleged errors in the main charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. § 699.]
    2. Appeal and Error (§ 907) — Exceptions— Refusal of Instructions — Presumptions.
    Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 1974, provides that, when instructions requested are refused, the judge shall note distinctly which are given and which are refused, and such instructions shall be filed with the clerk, and be a part of the record, and article 2061 provides that a ruling in refusing instructions shall be regarded as approved, unless excepted to as provided herein. Held that, in absence of exceptions in the record to the refusal of instructions, the court’s action thereon is deemed approved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    3. Insurance (§ 761) — Mutual Benefit Insurance-Reinstatement. '
    Where a mutual benefit certificate or the by-laws of the association do not require the insured to be in good health as a condition to reinstatement upon the payment of arrears, it is not necessary that he be in good health in order to be so reinstated.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1924; Dec. Dig. § 761.]
    4. Appeal and Error (§ 1002) — Findings— Gonclusiveness.
    The Court of Civil Appeals is bound by the jury’s finding on a disputed question of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    Appeal from District Court, Donley County; Cecil Storey, Special Judge.
    Action by Mrs. S. F. Rhoderick against the Mutual Life Insurance Association of Donley County and others. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    H. B. White and E. A. Simpson, both of Clarendon, for appellant. E. T. Miller, J. Marvin Jones, and L. G. Barrett, all of Amarillo, for appellee.

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’f Indexes

   HENDRICKS, J.

This suit was instituted by the appellee, Mrs. S. F. Rhoderick, plaintiff, in the court below, against the Mutual Life Insurance Association of Texas, the Mutual Life Insurance Association of Don-ley County, Tex., and W. J. Pars.ons, to recover the sum of $1,000, alleged to be due her as the beneficiary under a certain benefit certificate insuring the life of her husband, B. J. Rho derich.

Explanatory of the particular question involved upon the merits of this action, it will be sufficient to state that the Mutual Life Insurance Association of Donley county, against which judgment was finally rendered, assessed, at the death of a member of the association, each remaining member a stated amount for the purpose of paying the death claim; and during the progress of the business of the association there was" a call upon all the members to pay a certain assessment on the death of a member, one J. O. Finger, of Hall county, Tex., amounting to the sum of $1 for each member. The association caused written notices to be mailed to Rhoderick, the insured, calling on him to pay said assessment within 15 days, or before November 19, A. D. 1912, or stand suspended. We gather from the record in this cause that, according to the by-laws, constituting a part of the contract of insurance, if a member failed to pay such assessment within 15 days after the notice, he stands suspended. It thereupon became the duty of the secretary of the association to notify such suspended member of the fact of his suspension, and, if the delinquent again failed to pay said assessment within 15 days after notice of such suspension, with a fine of 50 cents (which latter was a contribution to the local expense fund), the delinquent forfeited all rights as a member of the association. B. J. Rhoderick, after having received the first notice of assessment, and within the interim of this 30 days, was severely injured, dying within a short time after an accident suffered by him,, and the assessment against Rhoderick to pay the death claim of Finger’s beneficiaries was paid upon the twenty-sixth day by Mrs. Rhoder-iek, the beneficiary, and her son, at the home of the secretary. There was an unconditional tender and acceptance of the amount of the assessment, but the amount of the 50 cents, the penalty which became a part of the local expense fund, was not tendered. The secretary of the association had authority to write policies of insurance, to accept and receive premiums and, as we gather it from the record, practically had the active management of the business ostensibly under the direction of the board of directors. However; he did not consult them when he wrote policies or receipts for premiums or collected overdue assessments, and had the authority to do so without consulting them. We conclude that it was not the custom to collect the 50 cents fee, but the association reinstated the delinquent members of the association upon the payment of the amount due, otherwise than this 50' cents, and this was the universal rule, unless the secretary was put to the trouble of sending a registered notice, which was not done in this par-, ticular case.

The secretary testified: “I always received the money when it was offered me after the 15 days was up. That custom had prevailed since the organization of the company. As a rule, when the 15 days were up, I gave them a registered notice, but in some instances I did not, and, in those instances when I did not, I would accept the $1 when it was paid.”' When the secretary accepted the assessment tendered to him in this case, he issued an unconditional receipt therefor. When the-money was tendered, the insured was in a precarious condition of health as the direct, result of the serious accident mentioned, and there was nothing said to the secretary by Mrs. Rhoderick or her .son as to the condition of the health of the insured, neither was-there .any inquiry made by the secretary in this respect.

The appellant contends, and so pleaded, that the beneficiary, in paying the death assessment which had been assessed against the insured, after the latter had received the fatal injury, and was in a dying condition, concealed the, condition of Rhoderick from the defendant’s secretary, W. J. Parsons, and the same constituted a fraud on the association; and, although there had been an acceptance of the arrearages, it was done so without knowledge of the real condition of the insured, and the latter was not reinstated.

Preliminary to the discussion of this-cause upon its merits, we are met with this-condition in the record: The pleading containing the exceptions and objections of appellant, the Mutual Life Insurance Association of Donley County, Tex., to the court’s charge recites, “Now comes defendant Mutu5 al Life Association of Donley County, Tex., in open court and prior to the reading of the main charge herein, and excepts there:to as follows;” and, omitting the four objections to the charge, which are unnecessary to-set out as an aid in the discussion of the proposition, the pleading embodying the exceptions concludes as follows: “Each and all of the above exceptions to said charge being overruled, defendant in open court excepts. Refused. Cecil Storey, Special Judge, presiding.”

Article 1971 of Rev. St. 1911, as amended by the act of the 33d Legislature (Session Laws, p. 113), reads as follows: “The charge-shall be in writing and signed by the judge; after the evidence has been concluded the-charge shall be submitted to the respective-parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so-made and presented shall be considered as waived.” It is, of course, necessary that the record, in a proper manner, shall exhibit the action of the court in refusing the objections to the general charge, when objections are made; and, when refused or overruled by the trial judge, the exceptions of the litigant shall be preserved and incorporated into the record in an appropriate manner. We conclude that the method pursued here is inapplicable for the purpose of exhibiting to the appellate court exceptions to the action of the trial judge in refusing the objections made. It is noted that the statute requires the objections to the charge “in every instance” to be presented to the court before the charge is read to the jury, and all objections not so made jand presented are waived. The statute prescribes the incorporation into the record of an extraneous fact — the presentation of objections before the charge is read to the jury — which is a precedent condition to the validity of the objections, and upon which the propriety of an appellate court’s consideration necessarily must ■depend. It is true in this instance the paper embodying the objections stated that the appellant presented the same prior to the reading of the main charge to the jury, and fully stated that the objections were overruled, and that the defendant excepted thereto in open court. The only action, however, manifested by the trial judge is the refusal of the objections, and it is clear that this could not be construed as a bill of exceptions, and, for aught this court may know, the refusal may be predicated upon the fact that the objections were tendered after the charge was read to the jury. The assignments based upon the alleged errors of the main charge of the trial court to the jury, on account of the improper presentation of the exceptions, are overruled.

The brief of the appellant assigns error upon the refusal of the trial court to give several specially requested instructions. “When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and shall subscribe his name thereto, and such instructions shall be filed with the clerk, and shall constitute a part of the record of the cause, subject .to revision for error.” Rev. St. 1911, art. 1974, as amended by Act 33d Legislature (Session Laws, p. 114).

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.” Rev. St. 1911, art. 2061, as amended by Act 33d Legislature (Session Laws, p. 114). There are. no exceptions whatever in this record shown to have been made by the appellant on account of the refusal by the trial court of any special instructions, and hence such action of the trial court, under the statute, is regarded as approved, on account of the failure of such exceptions. All assignments, based upon such requested instructions are consequently overruled.

On account of the contention, however, of appellants that, upon the undisputed facts of this case, only one verdict could have been rendered, which should have been in their favor, as applicable to this case, we shall discuss the question as upon fundamental error. The facts do show that the 50 cents was not paid when the death assessment was paid, but we think the record unequivocally suggests that this association, except when registered letters were mailed to delinquents, in all other instances waived the payment of said money.

The record does show that the insured was in a precarious condition as to health when the money was paid. The certificate of insurance, nor any law of the company, construed as a part of the contract, does not prescribe, as a condition of reinstatement upon the payment of arrearages, that the insured shall be in good health. In the case of Dennis v. Massachusetts Benefit Ass’n, 120 N. Y. 496, 24 N. E. 843, 9 L. R. A. 189, 17 Am. St. Rep. 660, the opinion discloses that Dennis, during his delinquency, was stricken with apoplexy. The by-laws of the association, as in this case, provided for assessment against each member, for the purpose of paying policies of insurance upon the death of any other member, and the bylaws further provided that, “if the assessment is not received within thirty days from-the mailing of said notice, it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party’s contract with the association shall lapse and be void.” The contract in the Dennis Case, supra, did not provide, as a condition, that the delinquent should be in good health at the time of the payment of arrearages, and we quote that part of the opinion of the Court of Appeals of New York applicable to the particular question: “Although the greater number of assessments were paid by Dennis promptly, still three assessments were not paid until after the due date. No other act was required or thing done to continue the policy in force, except to pay the overdue assessments. And after he was in default on account of the assessment in question, and on March 19th, the defendant mailed to him a notice that he could be- reinstated, ‘if in good health.’ By this act the defendant indicated that it understood the policy to have conditional life remaining, because no new contract was required or suggested; the mere payment of the overdue assessment, said the defendant, in effect, will support its vitality until another assessment shall be due and payable. Such .notice cannot be treated as a waiver, because it must be considered in its entirety, and thus regarded; waiver was conditioned on the good health of Dennis — a condition that the defendant could not impose, if reinstatement, under the circumstances, was a matter of right, because it was not so written in the contract” — that court clearly holding that the officers of the association had no right to attach such a condition. The suggestion follows: Would the secretary of the association in this particular case have had the right to have refused the tender of the past-due assessment if he had known and been informed of the precarious condition of health of the insured at the time the money was tendered? Under the logic of the decision in the New York case, the refusal of the secretary would have been nugatory. The policy had “conditional life remaining,” and the managing officer of the insurance company would not have had the right to have imposed a condition of reinstatement based upon good health. The contract of insurance had “conditional life,” and extended to the expiration of that time when the right of reinstatement ceased, whatever the condition of the health of the insured. To make the condition of the insured, even during the period when he was in arrears, a condition of forfeiture of his policy of insurance would be the remaking of a contract by the courts, which was not made by the parties. Such a condition is not annexed to the right of reinstatement, which is a part of the insurance contract. We believe that, under the undisputed facts, viewing it as fundamental error, the trial court was correct in withdrawing the issue of fraud from the jury.

As to the issue presented to the jury whether, at the time the assessment was tendered by the beneficiary and received by the secretary of the association, the assured was' dead or alive, the same was a disputed question of fact resolved by the jury, by which this court is, of course, bound.

The ease is affirmed.


author: HIGGINS, J.

text:
    GAAL v. CAMP.
    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.)
    1. Appeal and Error (§ 499) — Presenting Questions in Lower Court — Objections to Evidence.
    Where the bills of exception fail to disclose an objection to the introduction of evidence, the action of the trial court in relation thereto cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Adverse Possession (§ 90) — Payment oe Taxes — Property Assessed.
    The five-year statute of limitations does not apply where it appears that the land which has been rendered for taxation, and upon which the taxes have been paid, is not the particular land for which the suit was brought.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 517-519; Dec. Dig. § 90.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by I. G. Gaal against H. D. Camp. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Stanton & Weeks, of El Paso, for appellant. McBroom & Scott, of El Paso, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This was a suit in trespass to try title, instituted by the appellant to recover 1.7 acres of land situated in the San Elizario grant in El Paso county. The premises in controversy are part of a subdivision of the San Elizario grant known as survey No. 122. The description contained in appellant’s deeds embraces the land in controversy.

The first two assignments relate to the exclusion of evidence. The bills of exception fail to disclose the objection made to its introduction, and for this reason the action of the trial court in regard thereto cannot be reviewed. Railway Co. v. Jarrell, 38 Tex. Civ. App. 425, 86 S. W. 632 (writ of error refused); Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781 (writ of error refused); Bank v. Smith, 160 S. W. 311; Railway Co. v. Holzer, 127 S. W. 1062 (writ of error refused); Bank v. Pearce, 126 S. W. 285; Porter v. Langley, 155 S. W. 1042; Railway Co. v. Wishert, 89 S. W. 460; McBane v. Angle, 29 Tex. Civ. App. 595, 69 S. W. 433; Browne v. Brick, 56 S. W. 995; Railway Co. v. Dodson, 97 S. W. 523; Linn v. Waller, 98 S. W. 430; Railway Co. v. Blocker, 138 S. W. 156; Armstrong v. Burt, 138 S. W. 172; Howard v. McBee, 138 S. W. 450.

The remaining assignments of error complain that the court erred in rendering judgment for the defendant, because the undisputed evidence discloses that plaintiff had title thereto by virtue of the five and ten year statutes of limitation. ■ The evidence in the case has been carefully reviewed, and it. clearly establishes the fact that there has not been such continuous and adverse possession as is necessary to support the statutes of limitation.

As to the claim under the five-year statute, it may be further remarked that this is not well taken, because the premises sued for are situate in subdivision No. 122, whereas the land which appellant has been rendering for taxation and paying taxes upon, according to the assessment rolls and tax receipts which he offered in evidence, is situated in survey No. 121. It therefore appears that he has not been assessing and paying taxes upon the particular land for which he sues.

Finding no error, the judgment is affirmed.


author: CONNER, C. J.

text:
    WOOD v. J. M. RADFORD GROCERY CO. et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.)
    1. Courts (§ 122) — Jurisdiction.
    Where the petition, in a suit on notes in the district court for an amount below its jurisdiction, expressly declared on and sought foreclosure of a vendor’s lien of which it had jurisdiction, under Rev. St. 1911, art. 1705, cl. 4, and an amended petition alleged, in substance, as before, except that the lien had been rendered worthless, demurrer to the latter, based on the ground that it showed want of jurisdiction, was properly overruled.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.*]
    2. Appeal-and Error (§ 1062) — Special Issue — Right to Aegue — Submission to Jury.
    Where, in a suit in the district court on notes, it was only by virtue of an allegation that. there was a lien on land to secure the same, and a prayer for foreclosure, that the court had jurisdiction, and the defeated defendant, in a special plea, alleged that such allegation and prayer was fraudulently made to confer jurisdiction, and offered evidence tending to support it, whereon a juror would have found in his favor if his attention had been called to a certain communication therein, it was reversible error to refuse to submit in open court, pursuant to Rev. St. 1911, art. 1970, a special issue as to the fraud, and to refuse to permit counsel to argue the question, stating in the hearing of the jury that the court would not submit it, but thereafter sending such issue to the jury after they had retired.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212 — 4218; Dec. Dig. § 1062.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Suit by the J. M. Radford Grocery Company against A. E. Hudson and others. From a judgment for plaintiff, defendant Eugene Wood appeals.
    Reversed.
    Ben L. Cox, of Abilene, for appellant. Eugene De Bogory and B. A. Cox, both of Abilene, for appellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This suit was filed by the J. M. Radford Grocery Company, a corporation, against A. L. Hudson, the maker, and Eugene Wood, J. M. Porter, W. T. White, and John B. Girand, as indorsers, upon two promissory notes dated July 9, 1910, and payable to Eugene Wood, bearing 8 per cent, interest from their date, with the usual stipulation of attorney’s fees. Said notes reserved the vendor’s lien on certain lands situated in Jack county, which are described in the petition. The plaintiff later filed its first amended original petition, in which it was alleged, in substance, as before, except that it was averred that the vendor’s lien set up in its original petition and therein sought to be foreclosed had been rendered worthless by a forfeiture of the state’s previous sale of the land for nonpayment of purchase money.

The defendant Wood answered by a general denial, and, among other things, specially that the fact that the vendor’s lien sought to be foreclosed in the original petition was worthless was known to the plaintiff prior to the filing of such original petition, and that the allegation of such lien and the prayer to .foreclose the same had been fraudulently made for the purpose of conferring jurisdiction upon the district court

The court, upon the trial, submitted the case upon special issues, over the protest of the defendant Wood, upon its own initiative, to which the defendant Wood excepted, and now assigns error. The following further action was taken by the court as appears, in substance, from appellant Wood’s bill of exception, viz.:

After the court had overruled the defendant Wood’s general and special exceptions to the plaintiff’s first amended original petition on the ground that the same showed a want of jurisdiction on the part of the court, the defendant offered evidence tending to show, as alleged in his second supplemental answer, that the plaintiff knew that the land in question had been forfeited to the state of Texas when this suit was originally filed in the court, and that defendant’s counsel then attempted to argue to the jury the plaintiff’s attempt to perpetrate a fraud upon the jurisdiction of the court by setting up the purported vendor’s lien in its original petition, when it knew that it had no such lien; that, when the counsel for defendant attempted to argue said question to the jury, the court stopped him, and declined to further permit him to argue the issue of jurisdiction, stating, in the hearing of the jury, that he would not submit the question. Counsel for appellant thereupon prepared a special issue on the question, and requested the court to submit the same to the jury. The special issue so prepared is as follows: “At the time plaintiff filed this suit in this court, was plaintiff aware of the fact that the land described in the notes in controversy in this case had been forfeited to the state of Texas for any purpose? The burden is upon the defendant Wood on this question.”

The court- at the time of the request refused to submit the special issue, but later, and after the jury had retired to its consultation room, altered the special issue so as to read as follows, viz.: “At the time plaintiff, J. M. Radford, filed this suit in this court, was plaintiff aware of the fact that the land described in the notes in controversy in this case had been forfeited to the state of Texas for any purpose? The burden is upon defendant Wood to establish the affirmative of this question” — and sent the same to the jury by the sheriff, who delivered the same to the jury in its consultation room. The court refused to have the jury brought back into the courtroom and to read said special issue to the jury in open court, or to permit counsel for defendant to argue the issue thus submitted, all of which was requested by counsel for the defendant, and to which action of the court exception was duly taken as stated.

In the case of Nashville, C. & St. L. Ry. Co. v. Grayson County Nat. Bank, 100 Tex. 17, 93 S. W. 431, which has been followed in other cases, our Supreme Court held that, where a plaintiff sues for an amount sufficient to give the district court jurisdic■tion, the court’s power to finally dispose of the case, in the absence of a plea averring that the sum is claimed fraudulently for the purpose of giving jurisdiction, continues to the end, notwithstanding the filing of an amended petition reducing the amount sought to be recovered below the jurisdiction of the court. The defendant’s demurrer to the plaintiff’s amended petition was therefore properly overruled, in view of the fact that the plaintiff in its original petition expressly declared upon, and sought the foreclosure of a lien upon land.

But the court’s action in refusing to submit the tendered special issue in open court and to permit counsel to argue the ■question was erroneous, we think, under the circumstances, and will require a reversal ■of the judgment. In any view of the case, the amount involved in the recovery sought was below the jurisdiction of the district court, and it was by virtue only of the allegation that there was a lien upon land to secure the payment of the notes sued upon and the plaintiff’s prayer for the foreclosure •of said lien that the district court had jurisdiction. See fourth clause of article 1705, Revised Statutes. If, in fact, therefore, the lien originally declared upon was worthless, and was so known to be by the plaintiff at the time of the filing of the original petition, and the allegation of the existence of the lien and the prayer for its foreclosure was fraudulently made for the purpose of giving the district court jurisdiction, as alleged in the defendant’s special plea, the •case should be dismissed. The defendant presented the issue in his pleading, and he had the undoubted right to present it in his evidence and in his argument -to the jury. The bill of exception shows that evidence tending to support the issue was offered by the defendants, and it appears by the affidavit of one of the jurors that had his attention ■been called to a certain communication, appearing in the evidence, from the defendant’s counsel to that of the plaintiff prior to the institution of the suit, that the juror would have been in favor of answering the special issue in the affirmative instead of in the negative, as the jury did answer it. The statute expressly provides (Revised Statutes, art. 1970) that: “After the argument of a cause, the judge shall, in open court, unless the same be expressly waived by the parties to the suit, prepare and deliver a written charge to the jury on the law of the case, subject to the restrictions hereinafter provided.” In view of the remarks of the court at the time of the refusal to permit counsel to argue the issue under consideration, we think the court’s action in violation of the terms of the article of the statute quoted was prejudicial, particularly in view of the state of the evidence relating to the special issue.

It seems that, at the time of the trial, article 1992 of the statute expressly forbade the submission of a cause to the jury on special issues by the court, unless one or all the parties to the suit requested such submission. But, inasmuch as the law has since been amended in this respect (see General Raws 1913, p. 113), we need not discuss this action, which is also assigned as error.

Several other questions are presented that also are not likely to arise on another trial, and that, hence, we need not notice. We therefore conclude that the judgment should be reversed, and the cause remanded for the error discussed.

Reversed and remanded.


author: HALL, J.

text:
    HURST v. KNIGHT et al.

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1914.
    Rehearing Denied March 28, 1914.)
    1. Cancellation of Instruments (§ 35)— Actions — Parties.
    Where the life tenant and remaindermen jointly conveyed certain property to another, part of the consideration being represented by vendor’s lien notes payable to the life tenant, the remaindermen are necessary parties, without whom the court cannot decree a rescission in favor of the purchasers for misrepresentation of title on cross-petition filed by them in an action by the life tenant to foreclose the vendor’s lien.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 55-64; Dec. Dig. § 35.]
    2. Cancellation oe Instruments (§ 8) — Sale of Land — Misrepresentation as to Title — Necessity of Eviction.
    The purchasers of land are entitled to a cancellation of the deed and rescission of the contract on account of misrepresentations as to the title of the vendor, even though they have received a warranty deed and there has been no eviction by paramount title.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 2; Dec. Dig. § 8.]
    3. Cancellation of Instruments (§ 38) — Rescission by Purchaser — Pleading — Cross-Complaint — Exceptions.
    In an’ action against the purchaser and a subsequent purchaser to foreclose a vendor’s lien note, where the defendants filed a cross-petition asking for a rescission because of misrepresentation as to the vendor’s title, exceptions to allegations of the answer that the representations were repeated to the subsequent purchaser, on the ground that such allegations did not constitute a defense, were properly overruled, where they were set up as a basis for the relief sought by the defendants and not by way of defense.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 84-87; Dec. Dig. § 38.]
    4. Cancellation of Instruments (§ 37)— Rescission by Purchaser — Pleading—Offer to do Equity.
    A purchaser seeking to rescind need not show by his pleading the value of the rents and profits and offer restitution, but it is sufficient if he offer generally to do equity.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. § 37.]

      5. Vendor and Purchaser (§ 341) — Rescission by Purchaser — Liability for Consideration.
    Where a deed given by several grantors is rescinded for misrepresentation, the grantors are jointly and severally liable for any sums paid by the purchasers.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dee. Dig. § 341.]
    6. Cancellation of Instruments (§ 35)— Parties — Rescission by Purchaser — Conveyance to Subsequent Purchaser.
    Where a purchaser transferred his interest in the property, which was subject to a vendor’s lien note, to a subsequent purchaser, who assumed and agreed to pay the note, the original purchaser, as a correlative to his liability for the debt and his right to pay it at maturity, can maintain a cross-action for rescission on the ground of misrepresentation in an action to foreclose the lien, and in such cross-action the subsequent purchaser can join in order to enable the original purchaser to make complete restitution to the vendors.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 55-64; Dec. Dig. § 35.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by Mary Hurst against L. A. Knight and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    R. A. Sowder, of Lubbock, and A. H. Mount, of Royse City, for appellant. Randolph & Randolph, of Plainview, and Syn-nott & Underwood, of Amarillo, for appel-lees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

The appellant, Mary Hurst, filed this suit in the district court of Lubbock county, to recover a judgment against defendants, L. A. Knight, J. R. De Lay, and R. E. Burch, for the amount of three vendor’s lien notes for $1,000 each and sought to foreclose the vendor’s lien on a certain section of land in ILubbock county, patented to N. H. Mill. The petition alleges the execution and delivery of the deed by appellant, Mary Hurst, and by Anist Hurst and Guy Hurst, to R. E. Burch, who executed the three notes sued upon. It is further alleged that Burch had conveyed the land to the defendants Knight and De Lay, who .assumed the payment of said notes. The defendants allege that in the original transaction Mary Hurst, Anist Hurst, and Guy Hurst were represented by G. E. Mayes as their duly authorized agent; that James R. De Lay represented himself and the defendant Burch and closed the deal in Burch’s name, purchasing the land for both; that Mayes, the agent of plaintiff, and Guy Hurst, represented to De Lay that the land belonged to Mary Hurst and that she had a good and perfect title thereto, and that De Lay communicated these statements to Burch and also to Knight when he purchased Burch’s undivided interest in the land; that defendants were not lawyers and did not examine the title, but had great confidence in Mayes and accepted in full faith the representations of Guy Hurst and Mayes that the title was perfect, and, relying thereon, paid part of the purchase price in cash and, still relying thereon, paid the first three notes as they became due; that after the payment of the first note they applied for a loan on the land, which was refused because the title to the property was not good; that after discovering these defects they called upon the plaintiff, Mary Hurst, to correct the defects in the title and offered to pay the remaining notes if she would remove the defects, and even proposed to pay two of the notes if she would agree to extend the third to a time when the defects could be remedied; that she refused to make any attempt to do so and refused to extend the notes.

The defects in the title are set out, in substance, as follows: (1) A deed of trust executed by Paris Cox to A. Pruitt, trustee, to secure Burns-Walker & Co. in the payment of a note for $286.68, dated August 13, 1886, due December 1, 1886, and recorded in Lubbock county, August 13, 1886; that no release of the lien is shown by the records of Lubbock county or has been made. (2) Deed from Paris Cox and wife to E. Z. Der-byshire, and a deed from Edmund Derby-shire and wife to Willets M. and Gurney G. Derbyshire, dated January 7, 1898. This instrument is signed “Derbyshire” and in the certificate of acknowledgment the name appears as “Derbyshire.” (3) Deed from Gurney and Willets M. Derbyshire to C. E. Spath, dated January 16, 1902, conveying the premises in question and reserving the vendor’s lien to secure the payment of five notes for $100 each, and a release executed by G. G. and W. M. Derbyshire to C. E. Spath, dated March 21, 1905, reciting the payment of four of the notes described in the deed and the release of the vendor’s lien securing the payment of said notes. (4) Deed from Dude Hurst to Mary Hurst, Guy Hurst, and Anist Hurst, conveying a life interest to Mary Hurst, with remainder to Guy Hurst and' Anist Hurst, for a consideration of $1,000 paid and the assumption of all debts of the grantor by Mary Hurst.

Deeds were introduced in evidence tending to show the defects complained of. The judgment of the court decreed the cancellation of the deeds and notes, and judgment is rendered in favor of James R. De Lay and L. A. Knight, against Mary Hurst, in the sum of $5,160, the amount paid upon the purchase price of the land, with 6 per cent, thereon from date of judgment, with a lien against the land to secure its payment. For some reason unexplained in the record, a nonsuit was taken by plaintiff as to the defendant Burch. The court has filed findings of fact and conclusions of law as follows:

“First. I find as a fact that the defendant R. E. Burch executed the notes herein sued on as a part consideration for the land described in plaintiff’s petition, on June 24, A. D. 1909.
“Second. I find as a iaet tliat Mary Hurst, Guy Hurst, and Anist Hurst, by deed dated June 24, 1909, conveyed the land described in plaintiff’s petition, to R. E. Burch, and received as a part consideration therefor from said Burch the notes included in the first finding herein.
“Third. I find as a fact that James R. De Lay was in truth and in fact a joint owner with said R. E. Burch of an undivided one-half interest in said land described in plaintiff’s petition, and that the said James R. De Lay paid one-half of the cash consideration named in said deed and has paid one-half of the amount of the three first notes and interest as set forth in plaintiff’s petition.
“Fourth. I find as a fact that said notes last described in. plaintiff’s petition have not been paid.
“Fifth. I further find that the said R. E. Burch conveyed his one-half interest in said land to L. A. Knight, and that said Knight assumed the payment of the indebtedness due on the land, including the three notes herein sued on. •
“Sixth. I find that the plaintiff employed A. H. Mount, who is a practicing attorney at law, to bring this suit against the defendants.
“Seventh. I find that George E. Mayes was the agent of the vendors, acting in the sale of the land of plaintiff, Anist Hurst, and Guy Hurst1 to R. E. Burch and James R. De Lay.
“Eighth. I find that the said George E. Mayes represented to James R. De Lay, one of the purchasers of the land here in controversy, that the plaintiff, Anist Hurst, and Guy Hurst had good title to said land in controversy.
“Ninth. 1 find that James R. De Lay was acting for himself and the said R. E. Burch in the purchase of said land in the transaction in which the notes sued on were given.
' “Tenth. I find that the said James R. De Lay relied upon the representations made by said Mayes as the agent of plaintiff, Anist Hurst, and Guy Hurst, that they had good title to said land, and that said De Lay would not have closed the deal for same if he had not relied upon said representations.
“Eleventh. I find that said James R. De Lay repeated said representations to said R. E. Burch, prior to the closing of said deal, and that the said Burch acted on said representations, relying upon said De Lay as joint purchaser to close said deal.
“Twelfth. I find that James R. De Lay, prior to the purchase of the undivided interest of R. E. Burch by L. A. Knight, informed said L. A. Knight,of the representations made by said Mayes as such agent, and that said Knight relied upon said representations being true and purchased said undivided interest.'
' “Thirteenth. T find that one of the then owners,of.said land, Guy,Hurst, met the said James R. De Lay personally prior to the closing of said deal and represented that the title was absolutely good, and that the said Burch and said De Lay, also relying upon the representations made for himself and his co-owners, closed said deal and purchased said land and signed the notes herein sued upon.
“Fourteenth. I find that the said defendants, De Lay and Knight, had no actual notice of the defect in title to the land here in controversy until said notes were made known to them by Mr. Heard, the agent of G. W. Post, when he turned the said defendants’ title down and refused to make a loan "on the same.
“Fifteenth. I find that the deed of trust given by Paris Cox to A. Pruitt, trustee, to secure Burns-Walker & Co. in the payment of a note for $286.68, has not been released.
“Sixteenth. I find that ,the land was deeded to Edmund Z. Derbyshire, and that said Edmund Z. Derbyshire never conveyed the same as shown by the records; but I find on the record a deed from Edmund Z. Derby-shire to Willets M. Derbyshire and. Gurney G. Derbyshire.
“Seventeenth. I find that only four of the five notes mentioned in the deed from G. G. Derbyshire and W. M. Derbyshire to C. E. Spath have been released, leaving five notes unreleased.
“Nineteenth. X find that the consideration in the deed from Dude Hurst to Mary Hurst is $1,000, cash, and the further consideration that the said Mary Hurst shall assume and pay the outstanding indebtedness of the said Dude Hurst of every kind and character whatever, which deed is dated September 25, 1907, and duly recorded in Lubbock county.
“Twentieth. I find that said outstanding indebtedness of the said Dude Hurst has never been paid.”

As heretofore stated, Guy Hurst and Anist Hurst are not parties to this suit, and the final judgment dismisses the right of action by plaintiff, Mary Hurst, as against R. E. Burch. It seems to be well settled by the weight of authority that in a suit to cancel conveyances, instituted by the vendee, the grantors are necessary parties. 6 Cyc. 322; Malone v. Kelley, 101 Ga. 194, 28 S. E. 689; Hannibal, etc., R. R. v. Nortoni, 154 Mo. 142, 55 S. W. 220; Fairchild v. Fairchild (N. J.) 44 Atl. 944; Harding v. Handy, 11 Wheat. 103, 6 L. Ed. 429; 18 Enc. Pl. & Pr. 799; Douglas County v. Walbridge, 38 Wis. 179; Constant v. Lehman, 52 Kan. 227, 34 Pac. 745; Freeman's Bank v. Vose, 23 Me. 98; Hill v. Lewis, 45 Kan. 162, 25 Pac. 589; Monday v. Vance, 11 Tex. Civ. App. 374, 32 S. W. 559; McNeill v. Cage, 38 Tex. Civ. App. 45, 85 S. W. 57. Guy Hurst was not only part owner of the premises and a grantor in the deed sought to be canceled, but the action is founded in part upon representations alleged to have been made by him to De Lay with reference to the condition of the title. On the-face of the record both Guy and Anist Hurst were entitled to a portion of the consideration paid for the land. As remaindermen and grantors in the deed, reserving the vendor's lien upon the property, Guy and Anist Hurst, together with their mother, held the superior title to the section of land, and therefore had such an interest in the subject-matter of the contract as made them necessary parties. 8 Stand. Proc. 456, 457; Brinker v. Haydon, 33 Ky. (3 Dana) 156. The contract is entire and must therefore be rescinded in whole, both as to parties and subject-matter. De Perez v. Everitt, 73 Tex. 431, 11 S. W. 388; Culberson v. Blanchard, 79 Tex. 486, 15 S. W. 700. One condition upon which the remedy of rescission is granted, if at all, is that the parties must be restored to their original status. This cannot be done in this case unless all parties to the deed and interested in the subject-matter have been made parties to the action. The court could cancel the notes in the hands of the plaintiff, Mary Hurst, because she is the sole payee named in them, but could not properly enter a judgment canceling the deed, without the appearance of all the parties thereto in the suit.

It is insisted by appellant that the appellees cannot remain on the land and defeat recovery thereon without establishing beyond a doubt that the title is a failure; that there is danger of eviction, and also such circumstances as will prima facie repel the presumption that at the time of the purchase the vendees knew of and intended to run the risk of the defects in the title. We do not so understand this suit. The appellees are not endeavoring to defeat recovery and hold the land, but have filed a cross-complaint, praying for cancellation of the deeds and rescission of the contract because of the fraudulent representations made by the vendors as to the title. Misrepresentation as to the title of a vendor to the property contracted for is material and avoids the contract and entitles the purchaser to rescind, even though he has received a deed with covenants of warranty, and although there has been no eviction by paramount title. So the rule announced in Haralson v. Langford, 66 Tex. 113, 18 S. W. 339, and similar cases, does not apply. The rights of the appellees in so far as they seek to cancel the deeds, rescind the contract, and recover the consideration paid, are governed by the rules announced in Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Brown v. Montgomery, 89 Tex. 250, 34 S. W. 443; Altgelt v. Merwitz, 37 Tex. Civ. App. 397, 83 S. W. 891; Rancho Bonito L. & L. S. Co. v. North, 92 Tex. 72, 45 S. W. 994; Moreland v. Atchison, 19 Tex. 303. Appellant’s first and second assignments are therefore overruled.

We think the court did not err in overruling the1 general demurrer to the defendants’ cross-petition, in so far as defendants’ pleadings allege the facts showing the condition of the title to the land. We think the allegations are sufficient, and the evidence sustains the court’s findings that the title was not as it had been represented by Mayes and Guy Hurst. ■ >

Under the fourth assignment, appellant contends' that a vendor is not liable to a subvendee on account of statements as to the condition of the title made by a third party purporting to act as the seller’s agent, and insists that the court erred in overruling her exceptions to the answer of appellees alleging that Mayes, as the agent of plaintiff, had represented to them that the title sold was;a good legal title, without defects or flaws, because the petition did not further allege that such statements were made by the authority and with the 'knowledge of plaintiff. These allegations were not made as a defense to the notes, but were set up as a basis for tbe relief sought by the appellees, and the exception of the appellant that the facts alleged did not constitute a defense was properly overruled.

The fifth assignment is without merit, and is overruled by what we have heretofore said.

Appellant urges the proposition that in a suit on purchase-money notes, where defendant seeks affirmative relief before a right to rescind is shown, the cross-complaint must show the value of the rents and profits as well as the value of the improvements, and must offer to do equity by refunding the value of the rents. The rule as announced in Cecil v. Henry, 93 S. W. 216, and authorities there cited, is that a vendee seeking to - rescind is required to do nothing more by his pleadings than to offer generally to do equity, and it is then the province of the court to enter such a specific decree as will adjust the rights of the parties.

Appellant’s tenth assignment asserts that in the absence of an allegation of fraud, inducing the execution of a written contract for the sale of land, parol evidence is inadmissible to prove verbal statements and representations made by either party .before its execution. Reference to the pleadings shows that the allegation of fraud was duly made.

By the twelfth assignment of error appellant insists that the court erred in rendering a judgment rescinding the sale ,to Burch and requiring the plaintiff to repay áll consideration paid for said land, for the undisputed evidence showed that Guy Hurst and Anist Hurst received part of the cash consideration from said Burch,' and that the judgment requires the plaintiff to repay more than she received. We have searched the record in an effort to find some evidence sustaining this proposition. The statement 'of facts fails to show to whom the consideration was actually paid; but, as between the . Appellees and the grantors in the deed, the latter would be jointly and severally.'liable for any sums paid by appellees.

It is further contended by appellant that Knight, being a subvendee, cannot insist upon a rescission of the contract because of fraudulent representations made tó his vendor or to De Lay. There are authorities sustaining the proposition that the original ven-dee only is entitled to cancellation and rescission upon-the ground of fraud and that such right does not descend to subsequent purchasers. We think, however, the rule is not applicable in this case. Knight having assumed to pay the outstanding notes as part consideration for the transfer from Burch to him of an undivided interest in the premises-is with De Lay primarily, jointly, and severally liable for the unpaid purchase money. De Lay, being one of the original vendees, is liable to the grantors for the .whole debt and has the right to pay it off at its maturity, and we. think as the correlative of this right he can maintain an action for the rescission of the contract as a whole. It is true that hjs right to rescind might be defeated by the refusal of Knight to join in the action, since such refusal would deprive De Lay of the power of placing the grantors in status quo; but Knight having joined in the action and placed it within the power of De Lay to make complete restitution, we think, gives a court of. equity full authority to apply the remedies sought.

The remaining assignments of error are either without merit or present questions not presented in the trial court in the motion for new trial, and will therefore not be considered.

Reversed and remanded.


author: HUFF, C. J.

text:
    DOLLAR v. LOCKNEY SUPPLY CO. et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.)
    1. Action (§ 50) —Joinder—MultifaeiousNESS.
    The petition alleged that- defendant corporation was conducting a mercantile business, and that the individual defendants were stockholders and directors, except one who became trustee for the benefit of the corporate creditors, and that the directors knew or should have known, by the use of ordinary care, all of the matters alleged herein; that the directors held out to the public that the corporation was of undoubted financial ability, with assets valued at $25,000, when it did not have that sum and was practically in a failing condition; that it received cotton from plaintiff for shipment with the understanding that when it was sold, if there was any money in excess of the sum then advanced to plaintiff remaining from the proceeds of the cotton, it would pay such sum to plaintiff, and that plaintiff would make up any loss to the corporation, and that the corporation shipped the cotton to commission merchants and embezzled the ' proceeds from its sale over and above the amount advanced to plaintiff and used such proceeds in its- business, so that the particular sum due plaintiff thereafter could not be identified; that the directors knew of the misappropriations of such sums or were' charged with knowledge thereof; and that the trustee for the creditors did not take title to the assets as against plaintiff’s demand, and has in his possession sufficient funds to satisfy plaintiff’s claim. Held, that the petition was not subject to exception for multifariousness; the cause of action alleged being the misapplication of funds belonging to plaintiff to increase the assets of the corporation.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.]
    2. Equity (§ 51) — Joinder.
    A multiplicity of suits is not favored.
    [Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 167-171; Dec. Dig. § 51.]
    3. Equity (§ 147) — Pleading—“Multipart-' OUSNESS.”
    “Multifariousness” is the improper joining in one bill of distinct and independent matters, as the union of several distinct and unconnected matters against one defendant, or a demand with respect to several distinct matters against several defendants.
    [Ed. Note. — For other cases, see Equity, Cent. Dig. § 340; Dec. Dig. § 147.

    For other definitions, see Words and Phrases, vol. 5, pp. 4616-4618.]
    4. Corporations (§ 306) — Liability op Directors.
    Anomalous to the rule that corporate directors are personally liable for false representations made by them while acting for the corporation, whether they know of their falsity or not, directors are liable for the misapplication of funds held in trust by the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.]
    5. Corporations (§ 306) — Liability op Directors.
    Corporate directors or trustees, who commingle money collected for another with the corporate funds, contrary to the instructions of the owner, or knowingly permit their em-ployés to do so, resulting in the loss of such funds, are personally liable therefor.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.]
    6. Corporations (§ 325) — Directors—Relation to Third Persons.
    While, as to the stockholders of a corporation, directors are trustees, as to corporate creditors or third persons they are agents of the corporation.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1442,1457, 1458; Dec. Dig. § 325.]
    7. Corporations (§ 343) — Liability op Directors — Personal Liability.
    Corporate directors, who knowingly appropriated to the use of the corporation the proceeds of cotton held by the corporation and belonging to another, or knowingly permitted the corporation to do so, are jointly and severally liable with the corporation therefor.
    [Ed. Note. — For other cases, see Corporations, Dee. Dig. § 343.]
    8. Trusts (§ 356) — Preference.
    In order to recover against a trustee of a corporation for the benefit of creditors for funds belonging to plaintiff and wrongfully appropriated by the corporate officers or assert an equitable lien thereon so as to obtain a preference over other creditors, the proceeds must be traced into the hands of the corporation and conveyed to the trustee.
    TEd. Note. — For other cases, see Trusts, Cent. Dig. §§ 529-538; Dec. Dig. § 356.]
    Appeal from District Court, Floyd County; R. C. Joiner, Special Judge.
    Suit by J. F. Dollar against the Lockney Supply Company and others. From a judgment for plaintiff against the defendant named only, plaintiff appeals.
    Reversed in part, and affirmed in part.
    A. P. McKinnon, of Floydada, for appellant. Turner & Wharton, of Amarillo, Chas. H. Yeale, of Floydada, E. T. Miller and R. E. Underwood, both of Amarillo, and- Mathis & Williams, of Plainview, for appellee.

      For other cases see same topic V t section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This suit was instituted by appellant, J. F. Dollar, against the Lockney Supply Company, C. R. McCollum, H. Z. Pennington, A. R. Merriwether, R. E. Hadley, O. R. McCollum, and R. I. Wallingford. In his petition appellant alleges the Lockney Supply Company was duly incorporated as a private corporation, under the laws of Texas, on the 26th day of March, A. D. 1912, the purpose of said corporation being to conduct a general mercantile business in buying and selling goods, wares, and merchandise of all descriptions, with a capital stock of $25,000; that all of the named appellees were stockholders and directors in the corporation, except the appellee R. I. Wallingford; that the» corporation opened up a large stock of merchandise at Lockney, in Floyd county, and that on the 12th day of February, 1913, the corporation executed its deed of trust to R. I. Wallingford, trustee, for the benefit of its creditors, conveying all its personal property, real estate, chose in action, etc.; that the said directors were actively directing and controlling the affairs of said corporation and well knew, and ought to have known, and with the use of ordinary care and of such as it was their duty to have exercised might have known, all and singular the particulars and conditions of said corporation in respect to the matters set out in the petition; that the directors held out to this public that the corporation was of undoubted financial ability and deserving public confidence, advertising in various ways the value and character of its business, which was estimated at the value of $25,000. In fact, while the corporation purported to have a capital stock of $25,000 and its reputation of solvency, it did not have that sum, and long before the transactions mentioned it owed more money than the value of its assets and was to all intents and purposes in an insolvent and failing condition. It is alleged that the corporation, through its acting manager; A. W. Tanner, received from appellant seven bales of cotton October 8, 1912, for shipment on account of appellant with the understanding and agreement that the appellant would draw on said cotton the sum of $350, which he did, and it was further agreed that when said cotton was sold, if there was any money in excess of said sum from the proceeds of said cotton, it would pay the sum to appellant, and, if there was any loss when the cotton was sold, the appellant would make the loss to the company, meaning thereby that if said cotton sold for a less amount than the sum of money advanced to him, together with the commissions and costs of handling 'the same, appellant should pay the difference to the Lockney Supply Company. Under a like agreement the appellant, on December 25, 1912, delivered to the company nine bales of cotton, and on that day the company received from J. F. Gilly two bales; November 7, 1912, it received from C. É. Wells two bales, December 13, 1912, one bale, and October 16, 1912, eight bales. On November 8, 1912, R. C. Covington delivered one bale, and on October 10, 1912, S. J. Yerden delivered three bales; on October 10, 1912, W. H. Pope delivered five bales. J. W. Underwood delivered to the company during the fall of 1912, and up to February 12, 1913, eleven bales. The parties delivering cotton to the company, other than appellant, are alleged to have assigned to appellant their claim for the money due them by the company. The appellant sets out the number on the respective bales, the weight, the amount advanced, and the amount for which they sold. It is alleged in the petition that the Lockney Supply Company shipped all of said cotton to W. D. Cleveland & Son, commission merchants, at Houston, Tex., which said firm sold, and the proceeds of which they accounted for to the Lockney Supply Company. That, after deducting all charges and money advanced on the cotton, there was a difference due on all the cotton, which was itemized in the pleadings separately, aggregating the sum of $942.28. It is alleged the proceeds from the sale of the cotton were received by the supply company before the deed of trust was executed, and that demand for the amount due had been made of the company both before and after the deed of trust, and also from the trustee, R. I. Wallingford. It is alleged that the relation of debtor and creditor did not exist between appellant and his assignors and the supply company, but in receiving said cotton for shipment the supply company acted as commission merchant and agents for appellant and his assignors and bound itself to account to them for the proceeds of the sale of the cotton, but, instead of doing so, embezzled the proceeds from the sale of said cotton over and above the amount advanced. It is alleged the money was used by the Lockney Supply Company in its business and so intermingled with the assets of the corporation that the particular sum and sums due appellant and others on account of the cotton that the same could not be identified. It is further averred that the appellees, except Wallingford, who are denominated trustees in the charter incorporating the Lockney Supply Company, had knowledge of the facts of the misapplication and appropriation by said company of the said sums of money, or, if they did not have actual knowledge of said facts by reason of their office, they were chargeable with the knowledge of the embezzlement and misapplication of tlie several sums of money which the cotton owners were entitled to receive, and that each are jointly and severally liable to appellant therefor. That R. I. Wallingford, by virtue of the deed of trust, did not take title to said assets as against appellant’s demand,, and that the money derived from the sale of the cotton belonging to appellant having been merged and intermingled with the assets of the skid Lockney Supply Company, and a large portion of which is now in the possession of the said trustee Wallingford, appellant in equity is entitled to have his demand paid and satisfied out of said assets so in the hands of said trustee. It is also alleged that the supply company used the proceeds from the sale of the cotton to increase the assets of the company in connection with the mercantile business to the amount, of appellant’s demands, and that Wallingford, its trustee, has in his possession enough to cover the trust fund claimed by appellant, and that appellant is entitled to be preferred and should have priority of payment as against the general creditors.

. The appellees, the directors, answered by general and special exceptions and general and special answer, and appellee R. I. Wal-lingford answered by general and special exceptions and general and special answer. The court sustained the directors’ general and first special exception to the plaintiff’s petition, and, the appellant declining further to amend such, appellees were discharged by the judgment of the court rendered in their favor. Judgment was . taken against the Lockney Supply Company by default, and, upon issues joined between the appellant and R. I. Wallingford, the court .rendered judgment that appellant was not entitled to a preference lien in payment out of the proceeds, but had established a right to recover from the supply company the sum of $1,-008.12; that Wallingford go hence without day, .but that appellant recover said sum against the supply company. Appellant dismissed A. R. Merriwether from the suit. Appeal is prosecuted from this judgment. The case was tried before the court without a jury, and the case is in this court on the pleadings and findings of the trial court and without a statement of facts.

. The first assignments Of error complain at the action of the court in sustaining the general and first special exception of C. R. McCollum, H. Z. Pennington, R. E. Haldey, and O. ,R. McCollum, and in rendering judgment in their favor. The special exception to the petition is in effect that it is insufficient as to the appellee directors because it is multifarious and because appellant seeks to recover from various and different defendants upon different causes of action. From the brief of appellant and appellees on this branch of the case, we gather from the proposition that the general exception was as sustained on the ground that the directors and trustees are not shown by the petition to be personally liable for a conversion of the proceeds from the sale of the cotton.

First, we think the trial court was in error in sustaining the first special exception to the petition, because it was multifarious as to parties and cause of action. We think it was not such as to either. The cause of action in this case was the misapplication of the proceeds belonging to appellant to swell the assets of the supply company, and that its directors, as trustees, knew of such misapplication, or should have known of such acts. Wallingford was in possession of the assets under a deed of trust into which the proceeds had been merged. We see no reason why all the parties in any way connected with the proceeds and the merger should not be joined in the same suit, and in fact, we think they should be.

Multiplicity of suits is not favored in this state. The fact that there is an allegation of misrepresentation as to the solvency of the corporation does not appear to have been alleged as the cause' of action against the directors personally, but is more in the nature of inducement and a recitation of the facts under which the corporation was transacting its business under the direction of its officers. The cotton and the proceeds were therefore intrusted to it, but the gravamen of the complaint is the corporation appropriated the proceeds to its own use and benefit. All parties who acted together in the unlawful appropriation of the funds are liable to the appellant, whether as individual, corporation, or trustee. If the proceeds could be traced into the hands of the trustee under the rules of law and equity, then appellant was entitled to recover thereon.

“Multifariousness in equity pleading is the improperly joining in one bill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill.” Bank v. Texas Investment Co., 74 Tex. 421, 12 S. W. 101. “The suit here, in the main, is for the recovery of one debt only, and a judgment is sought against several parties, who have, as is alleged, made themselves successively liable for its payment.” Id.; Townes on Pleading (2d Ed.) 428-432; Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St Rep. 592. This is a suit against several wrongdoers in misappropriating the proceeds of cotton held in trust. It is not a suit for misrepresentation and consequent damages joined with that cause, but for the proceeds or the value of cotton against all the parties wrongfully withholding or converting it. It is one and the same transaction. We quote from the syllabus of Sweet v. Montpelier Savings Bank, 69 Kan. 641, 77 Pac. 538, which we find supported by the opinion: “Where money has been wrongfully converted to the use of a corporation, and the assets of the corporation, by its insolvency, have come into the hands of a receiver, * * * as a trust fund, does not preclude the maintaining of an action to recover against the parties by whose wrongful act the funds were converted; the two remedies not being inconsistent.” The above case was a suit against the managing officers of the bank, in which a personal judgment was sought against them for conversion of the funds. The suit was instituted after the plaintiff therein had intervened in the federal court, where the estate of the insolvent bank was being administered, asking by his intervention to have his claim declared a first lien. If the two remedies were not inconsistent, they in this state could be joined in one suit and all the issues settled therein. Of course there could be but one satisfaction, but that does not militate against their being joined. The trial court should have overruled the first special exception, and erred in sustaining it.

We think it is clearly held in this state that the directors of a corporation are personally liable for false representations made by them to an injured party, whether they know they are false or not. Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592; Giddings v. Baker, 80 Tex. 308, 16 S. W. 33; Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359; College Park Electric Line v. Ide, 15 Tex. Civ. App. 273, 40 S. W. 64. We are not cited to any cases in this state in which it is held that directors are liable for the misapplication of funds held in trust by the corporation, nor have we found any directly in point, but we see no distinction in principle from the cases above cited. It is alleged the corporation in -this ease was intrusted with funds which it appropriated to its own use, and that the directors knew or ought to have known thereof. It is usual to sue'the corporation direct for loss by the corporation, and a suit against the directors or managing officers is somewhat out of the ordinary.. There are two lines of authorities in America on this question; one holding that such officers are liable for ordinary negligence, and the other that such officers are not liable for mere acts of negligence.

It may, we think, be stated as the rule that managing agents of a corporation, whether they be directors or trustees, mingling money collected for another with the funds of that institution, in violation of the instruction of the owner, or who knowingly permit their subordinates to do so, and the fund is thereby lost, such managing officer will be personally liable therefor.

The- relation of a director to stockholders or to the corporation, we think, is one of trustee, as held by the weight of authorities (2d Thompson on Corporation, §§ 1268-1269); but as to creditors - or strangers they are agents of the corporation. “A director, even under the doctrine that he is an agent, is liable to his principal for breach of duties he has assumed. This is denominated a liability for nonfeasance. So a liability exists for a trespass, fraud, or other wrongs which he may commit against third persons while discharging the duties of such agency. This is usually, denominated a liability for misfeasance. In the latter class, when the wrong was. done or committed in the course of agency, or where it was directly authorized by the principal, both principal and agent are liable, either jointly or severally. Directors stand toward strangers in the same relation in which any other agent stands towards third persons. * * * The agent is personally liable to third persons for his own misfeasance and positive wrong, but he is not in general liable to third persons for his own nonfeasance or omission of duty in the course of his employment. His liability in these latter cases is solely to his principal; there being no privity between him and such third-persons, and the privity exists only between him and his principal.” Id. 1295. “Directors and officers of private corporations are personally liable for trespasses and other acts of malfeasance or misfeasance committed as to strangers to the corporation. The fact that the corporation itself is liable does not relieve the trespassing officer either from joint or several liability, and in such cases a trespassing officer or director cannot relieve himself on the ground that he acted of-, ficially.” Id. 1300. It is expressly held in Sweet v. Montpelier Savings Bank, 73 Kan. 52, 84 Pac. 544: “When the managing agents of a trust company mingle money collected for another with the current funds of the company for use in its business, in violation of the express directions of the owner to remit, or knowingly permit their subordinates to do so, and the fund is thereby lost, such agents will be personally liable to the owner therefor, although, at the time of such misappropriation, it was the intent of such managing agents to account for and return the money to the owner upon demand.” It is also held in that case that a fraudulent intent is not necessarily an essential element in the case. See, also, the same case, 69 Kan. 641, 77 Pac. 538; 2d Cook on Corporations, § 682, and note beginning on page 2079. We cite the case of Fidelity, etc., v. Wiseman, 103 Tex. 286, 124 S. W. 621, 126 S. W. 1109, on the liability of an acting officer of a corporation where the officer was guilty of culpable negligence.

We think from the authorities in. this state, as well as others cited, that if the directors knowingly appropriated the proceeds of the cotton to the use of the corporation, or knowingly permitted the corporation to do so, or if the facts and circumstances were such as to charge them with knowledge of such appropriation, they and the corporation would be jointly and severally liable for the loss. The situation of the directors and their connection with the corporation and with the particular fund in question will, under the circumstances surrounding them, determine their liability. Under this rule they may all be liable or only a part. The facts must determine who, if either of them, are liable. We believe the court was in error in sustaining the general exception and in dismissing the appellees directors and in rendering judgment in their favor.

The appellant also seeks to reverse the judgment of the trial court as to R. I. Walling-ford. The trial court finds substantially that the Lockney Supply Company was incorporated under the laws of Texas the 30th day of March, 1912, to carry on a general mercantile business, with a capital stock of $25,000. The assets of the company consisted of two stocks of goods. The corporation began business in the town of Lockney, Floyd county, and continued in business until the 12th day of February, 1913, during which time it became insolvent, and on the date last mentioned conveyed to R. I. Walling-ford, by deed of trust, all the property belonging to the corporation for the benefit of all of its creditors, to share equally in the trust. R. I. Wallingford took charge of the assets and proceeded to administer under the deed of trust. The court finds as follows:

“I find that on August 26, 1912, the Lock-ney Supply Company made its note to W. D. Cleveland and son, cotton commission merchants at Houston, Tex., in the sum of $5,-000, and obtained a loan of that sum for the purpose of paying its past due indebtedness, and that said money was so used by it.
“(5) I find that during the fall and winter of 1912 and 1913, and prior to its failure, as aforesaid, the Lockney Supply Company engaged in the purchase of large quantities of cotton from farmers in the vicinity of Lock-ney, which cotton was shipped to W. D. Cleveland & Sons, in the name of the Lock-ney Supply Company. A portion of said cotton, the amount not being shown by the evidence, was brought by said supply company on its own account, and some of it was received from the farmers who raised it to be shipped by the Lockney Supply Company to W. D. Cleveland & Sons, receipt being given the farmers in each instance showing the number of bales and the weight thereof, and stating the amount of money that was advanced to the owner in each instance, with the further agreement that when sold, if there should be any profit, it should go to the owners of the cotton, and, if there was any loss, the owners would pay the same to the Lockney Supply Company when the cotton should be sold. That under such agreement there was delivered to the Lockney Supply Company, on divers dates during the months of September, October, November, and December, 1912, the cotton set forth in the exhibit to plaintiff’s petition. The owners of same being respectively J. V. Gilley, J. F. Dollar, C. E. Wells, W. H. Rope, R. C. Coving-ton, S. J. Verden, and J. W. Underwood.. The number of bales so delivered by said farmers being 52, which was only a small portion of the total amount of cotton handled by the Lockney Supply Company during the season of 1912-13, during which time said Lockney Supply Company from time to time drew on W. D. Cleveland & Sons against the cotton shipped to said firm. The said Cleveland Company holding said cotton as security for the money so drawn until a few days before the deed of trust was given, at which time Cleveland & Sons sold all of the cotton on hand shipped by Lockney Supply Company during the whole season of 1912-13, amounting to nearly 800 bales, and gave the Lockney Supply Company credit on its indebtedness for the amount of such cotton, after deducting what had already been advanced to said company, leaving a balance still due Cleveland & Sons of $4,606.07, and I find that the balance due by Lockney Supply Company on said 52 bales in controversy, after deducting amounts previously advanced to the farmers who owned same, totals $962.38 at the time the deed of trust was given. I find that the money received from Cleveland & Sons on the cotton shipped during the season of 1912-13 was used in the business of the Lockney Supply Company in the purchase of property of various kinds, but just how much was used in the purchase of real estate is not shown, nor has it been shown how much was used in the business at Lockney and how much at Quitaque, nor was it shown how much was used in the purchase of cotton shipped by said Lockney Supply Company on its own account during the season of 1912-13, nor was it shown how any of the money owing by Lockney Supply Company to said cotton farmers or either of them was used, except in a general way. None of said money being traced either separately or collectively into the purchase of any specific property.”

The court finds also as a conclusion of law:

“That the proceeds of the cotton belonging to the plaintiff and his assignors have not been traced into any specific property into the hands of the trustees, and that it would be inequitable to apply any of the property in his hands or the proceeds thereof to the payment of any preference claim on the part of the plaintiff or his assignors.”

The appellant rests his right of recovery against the trustee on the rule that when property has been wrongfully appropriated by another and can be found or its substantial equivalent, if the form has been changed, will be impressed with the trust in favor of the owner, and if the trustee has mingled the trust funds with his own, he will be deemed to have used his own. From an examination of the court’s findings, we think it clear that the proceeds of the cotton was. not traced into the hands of the corporation and conveyed by the deed of trust. This the appellant was required to do in order to-establish his equitable lien and thereby obtain a preference over other creditors. “Now, then, the question is: Has the appellant a lien upon the general assets in the hands of the receiver for the proceeds so appropriated? We think not. To hold the affirmative on this proposition would be to declare that every one who receives the money of another in a fiduciary capacity and expends it in the payment of his own debts thereby creates a lien upon his entire estate in favor of the owner of the money so expended, but this is clearly contrary to the doctrine of constructive trusts. The true rule is that the trust estate must be clearly traced into other specific property in order that the cestui que trust may claim either the property or the lien upon it.” Bank v. Weems, 69 Tex. 489, 6 S. W. 802, 5 Am. St. Rep. 85. The finding of the trial court, we think, clearly brings this case within the rule stated by our Supreme Court, and this rule is supported by a great number of cases, among which may be noted those cited by both appellee' and appellant: Mills v. Swearingen, 67 Tex. 269, 3 S. W. 268; Bank v. Wheeler, 12 Tex. Civ. App. 489, 33 S. W. 1093; Peters Shoe Co. v. Murray, 31 Tex. Civ. App. 259, 71 S. W. 977; Spokane v. Bank, 68 Fed. 979, 16 C. C. A. 81; Little v. Chadwick, 151 Mass. 109, 23 N. E. 1005, 7 L. R. A. 570; In re Marsh et al. (D. C.) 116 Fed. 396; Slater v. Oriental Mills, 18 R. I. 352, 27 Atl. 443; Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696.

We think the trial court’s refusal to declare a lien and preference out of the assets held by the trustee in favor of appellant, under the facts found by him, was correct, and the judgment in that particular should be affirmed. We deem it unnecessary to discuss other questions presented by appellant and appellees. The judgment as to C. R. and O. R. McCollum, H. C. Pennington, and R. E. Hadley will be reversed for the reasons given by us in this opinion. The judgment dismissing A. R. Merriwether and refusing to establish a lien on the property in the hands of Wallingford as trustee, and to require him to pay the appellant’s claim as a preferred debt over other creditors, is affirmed.

Reversed in part, and affirmed in part.


text:
    KILGORE et al. v. SAVAGE et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1914.
    Rehearing Denied March 14, 1914.)
    1. Appeal and Error (§ 722) — Assignments' OF ERROR.
    Though an assignment of error in a motion for new trial, directing the court’s attention to the error complained of, may be multifarious and raise distinct and separate questions, and so be technically unobservant of rules 24 and 25 of the Court of Civil Appeals (142 S. W. xii), it should not be disregarded, and, in the court’s discretion, should be permitted, in view of the recent statute constituting the assignments of error as the specifications of error on which the cause is to be briefed, and making an assignment sufficient which directs the court’s attention to the error complained of.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    2. Execution (§ 203) — Claim by Third Person — Judgment Against Claimant — Satisfaction.
    Payment of costs of suit is required by Rev. St. 1911, art. 7793, providing that, if, within ten days from judgment against a claimant of property seized under execution, he shall return the property and pay for its use, together with damages and costs, such payment shall satisfy the judgment.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 584; Dec. Dig. § 203.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Suit by Z. Z. Savage and others against C. L. Kilgore and others for an injunction. From a judgment for plaintiffs, defendants appeal.
    Reversed and rendered.
    J. N. Haney and C. A. Wright, both of Amarillo, for appellants. Cooper, Merrill & Lumpkin, of Amarillo, for appellees.

      For other caaes see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   HENDRICKS, J.

For the disposition of this appeal from the county court of Potter county, Tex., it is sufficient to say that in another and different proceeding the appellants obtained a judgment against the appel-lees in conformity with the statute with reference to a trial of the right of property upon a claimant’s bond, wherein it was provided that, in the event the defendant in that particular suit should, within ten days from the date of the judgment in that suit, return the property in as good condition as he received it, and pay for the use of it, together with the damages and costs, such delivery and payment would operate as a satisfaction of said judgment The judgment in the other cause, in the trial of right of property, was attempted to be superseded by an appeal to this court, which, however, we judge from the record in this particular cause, was never in reality perfected, and, upon certificate from this court to the county court in said proceeding, the clerk of the county court issued an execution upon the judgment in that cause. The levy of the execution was enjoined in this cause, on the ground of a return of the property by one of the sureties upon the claimant’s bond in conformity with the following statute (article 7793, Revised Statutes 1911): “If within ten days from the rendition of said judgment, the claimant shall return such property in as good condition as he received it, and pay for the use of the same, together with the damages and costs, such delivery and payment shall operate as a satisfaction of such judgment.” The trial court perpetuated the temporary writ of injunction upon final hearing, ostensibly holding that the return of said property was made in conformity with said stat-■utej and such' judgment of the trial court is ■challenged in this court.

The appellant in this cause filed a motion ■ for new trial in the trial court, and the only assignment in said motion carried forward into the brief upon appeal, questioning the judgment of the trial court upon the matter of the return of the property, is strenuously objected to in this court by the appellees, on grounds that it is multifarious and raises distinct and separate questions as specifications of error, and is in direct violation of rules 24 and 25 for the Courts of Civil Appeals of this state (142 S. W. xii). Under the present statute, passed by the last Legislature, constituting the assignments of error in the motion for new trial, as the specifications of error upon which the cause is to be briefed, and under rule 101 — a (159 S. W. xi), promulgated by the Supreme Court in pursuance of said statute, both prescribing that an assignment shall be sufficient which directs the attention of the court to the error complained of — we are not prepared to say that this particular assignment, brought forward in the brief from the motion for a new trial, although multifarious in a sense, would now be condemned under said statute and rule— that question we do not decide. We think, however, that at present, on account of the recent passage of the statute, compared to the time in which this motion for new trial was made, that an assignment of this character, when reproduced from the motion, although technically unobservant of the directions prescribed by the old rules, when it contains a specification of error directing the attention of the court to the error complained of, should not be disregarded, and in our discretion should be permitted, challenging the judgment of the trial court. Assignments in motions for new trial have rarely been as rounded and as specific as afterwards reproduced and condensed following the old rules as to briefing. This assignment seems to raise every conceivable question challenging the judgment of the court upon the matter of the sufficiency of the evidence.

It is agreed in this case by the appellee that the costs of the other proceeding, wherein judgment was rendered upon the claimant’s bond, were not paid by the appellee surety even within the ten days after the certificate issued by this court had been filed with the clerk of the county court in lieu of a mandate authorizing the issuance of execution. At least we so construe the record on account of testimony preceding this admission that the costs of that proceeding were referred to as not having been paid. Justice Brown said, in the case of Willis & Bro. v. Chowning, 90 Tex. 625, 40 S. W. 398, 59 Am. St. Rep. 842: “The claimant and his sureties have the right, under this article 'of the statute, tó return the property within ten days and discharge the . judgment by paying the dámages, if any, and the value of the use of the property and costs of suit.” It is true in that case the direct question of the failure to pay the costs of the suit as a precedent condition to a discharge of the judgment, in connection with the other conditions to be performed, was not involved; but the imperative language of the statute is such that it requires the payment of the costs as one of the prerequisites, in order that the return of the property “shall operate as a satisfaction of such judgment.” The statute, in effect, says' that, if the delivery and payment is made within the time prescribed, the judgment is satisfied. The converse of that proposition is that if not done the judgment is unsatisfied. Without discussing whether there was an abandonment of the appeal from the county court in the other proceeding to this court, and that the time had already expired when the certificate was issued from this court to the county clerk, or whether the property was returned, or only a portion, we think that if the time should be computed from the latter event that the appellees did not comply with the statute, and that the same is affirmatively shown in this record, and that, on account of such noncompliance, the judgment was not satisfied, and that the trial court erred in perpetuating said injunction, restraining the levy of the execution.

The cause is reversed and rendered, and it is ordered that the judgment of the trial court perpetuating said injunction be set aside, and that said injunction be in all things dissolved.

Reversed and rendered.