author: BOYCE, J.

text:
    McCORMICK v. STONEHEART.
    (No. 1174.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1917.
    Rehearing Denied June 6, 1917.)
    1. Party Walls @=»8(2) — Contract — Construction.
    A contract between adjoining owners, whereby the party desiring to erect a house was to erect a party wall one-half upon the property of each at his own expense, and whereby the other party, his heirs and assigns, were to pay one-half the cost when used by them, created easements in favor of the owner of each lot on the other’s lot for the support of the wall; the cross-easement being created for the benefit of both lots.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 29, 30.]
    2. Party Walls <§^9(4) — Agreement—Use-Payment.
    Under such agreement, the assignee of the party whose lot remained vacant, who used the wall as a party wall and enjoyed the benefit of the contract, was liable for his share of the cost of the party wall.
    [Ed. Note. — For other cases, see Party Wills, Cent. Dig. § 48.]
    3. Party Walls <@=^9(4) — Agreement—Liability oí? Assignee.
    Irrespective of the question of privity of estate or of running covenants, a subsequent grantee with notice of a party wall agreement who thereafter used the wall was liable to pay his part of the cost, the whole of which had been borne by the adjoining owner when he built it, on the theory that the builder was the absolute owner of the wall until the owner of the other lot paid for his part of its cost.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. § 48.]
    4. Party Walls <@=^9(5) — Contract—Rights of Assignee — Burden.
    Where a party wall contract provided that it should bind the assigns of the respective parties, the benefits as well as the burdens ran with each lot, and the subsequent grantee of the owner who had built and paid the whole cost would be entitled to recover a proportional part of its cost on its use by the adjoining owner’s grantee.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. § 49.]

      5. Party Walls <@=39(4) — Agreement—Right to Compensation.
    Under a party wall agreement, whereby one owner built the party wall at bis own cost, providing that the other owner or his assigns should pay a proportional share of the cost when they used it, and in view of the first owner’s conveyance of all right in the part of the wall located on the adjoining lot, a recovery against the as-signee of the other owner subsequently using the wall might be had on the theory of compensation.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. § 48.]
    6. Limitation oe Actions <@=46(1) — Agreement-Right to Compensation.
    Under such agreement, the use of the wall referred to an actual use by building, and not to a sale of the adjoining lot, and hence limitation against an action for compensation ran only from the time of its actual use.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240, 251, 253.]
    7. Party Walls <@==>8(2)- — Right to Compensation-Lien.
    In an action for compensation under a party wall agreement, where the plaintiff pleaded a lien and sought a foreclosure, and where the amount to become due was in the nature of the purchase price of an undivided interest in the wall defendant’s liability would create an equitable lien on his property.
    [Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 29, 30.]
    ' Appeal from District Court, Dallas County1 ; Kenneth Foree, Judge.
    Suit by Lena M. Stoneheart against Robert McCormick. ' Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Gordon B. McGuire, of Lamesa, and W. N. Coombes, of, Dallas, for appellant. Read, Lowrance & Bates, of Dallas, for appellee.
   BOYCE, J.

The parties to this suit are owners of adjoining lots in the city of Dallas. Barnett Gibbs, the remote grantor of appellee, had erected a partition wall across the division line of these lots in pursuance to a written contract with H. C. Penniman, the remote grantee of appellant, which contract was duly signed, and acknowledged by the said respective parties and their wives, and placed of record, and is in substance as follows:

“Know all men by these presents, that we, Barnett Gibbs and wife, S. A. Gibbs, parties of the first part, and H. C. Penniman and wife Mary L. Penniman, parties of the second part, all of Dallas county, Texas, have this day, and-do hereby enter into the following agreement, to-wit: Whereas the parties hereto own property adjoining on the south side of Elm street, in the city and county of Dallas, Texas, out of block No. 95; and whereas, the west line of said Penniman- and the east line of said Gibbs is a common line; * * * and, wherqas, said parties of the first part are desirous of erecting a two-story brick business house upon their property, and it is desired that the eastern wall shall be a partition wall one-half to be erected upon the property of the parties of the first part and one-half to be erectel upon the property of the parties of the second part: Now, therefore, it is hereby mutually agreed by and between the parties hereto that said eastern wall shall be a partition wall the same to be erected as that one-half of said wall shall be upon the property of the parties of the first part and one-half upon the property of the second part [here follow specifications as to dimensions, etc.]. Said party of the first part are to erect said wall at once, and to leave joist walls in the proper place for the resting of the joists on the side of the wall to be used by the parties of the second part. Said wall is to be erected by the parties of the first part at their cost. Said parties of the second part, their heirs or assigns, are to pay to the parties of the first part, when they use said wall, one-half of the value of said partition wall, to be estimated at the time the same is used by the parties of the second part, their heirs or assigns. Said estimate is to be made by two disinterested architects, one to be selected by .each of the parties hereto, and if they cannot agree they are to select a third architect whose decision shall be final. This contract is to be binding upon the parties hereto, their heirs and assigns. Signed in duplicate this 28th day of Sept., 1889.”

The appellant, McCormick,, by regular chain of transfers, acquired the Penniman lot; the conveyances themselves do not appear to- have referred to the party wall agreement, though it appeared in the abstract of title in appellant’s possession. The appellee, by regular chain of transfer, by general warranty deeds, acquired the Barnett Gibbs lot, and after the death of Barpett Gibbs, his wife being independent executrix of the estate, conveyed to appellee the undivided one-half interest in the party wall on the Pen-niman lot. The Penniman lot remained vacant until April, 1914, at which time appellant erected a building thereon, cutting holes in the said wall to secure support for his joists, and fastening, his building onto said wall, using the same as one of the walls of his building. He refused to submit the question of the value of the wall to arbitration, as provided by said contract, and attached his building to the same over appellee’s protest, refusing to pay anything for such privilege.

Appellee, in the court below, recovered judgment against appellant for $600, which the court below found to- be the value of oner-half of the partition wall, and also the value of the use of said wall and the amount of damage sustained by appellee on account of the use thereof, without her consent.

The contract referred to created easements in favor of the owner of each lot on the other’s lot for support of the wall, and therefore imposed the burden of such easement on each lot. This cross-easement was created for the benefit of both lots, in that a saving of space, as well as the expense of erection of one wall, was thereby made.

As the owner of the vacant lot was not, at that time, ready to improve his property and thereby make .use of the wall, yet, realizing the benefit that the lot would receive by reason of the erection of a party wall on one of its lines, postponed the payment of his part of the expense of erecting such wall until such time as use thereof should be made, but bound himself, his heirs or assigns, to pay sai'd part, of such expense at such time. When appellant, having constructive notice of the agreement by reason of its record, and some sort of actual notice, at least by reason of the fact that the wall stood across the division line of said property, acquired the property from the said owner, thus being an assign within the terms of the contract, and sought to use the wall and enjoy the benefit of the contract, there should be no difficulty in arriving at the conclusion that he ought to pay therefor. But when we come to examine the authorities on the subject, we find that this question has been involved in a bewildering maze of discussion of what constitutes “a covenant running with the land,” “privity of estate,” and “privity of contract,” and that, while a majority of the courts have arrived at this conclusion, it has been reached by several different legal routes, and some of the , courts have arrived at different conclusions. The decision in the case of Cole v. Hughes, 54 N. Y. 444, 14 Am. Rep. 611, seems to be chiefly responsible for this confusion. In that case Yoorhees and Dean, being owners of adjacent lots, and Dean being desirous of building on his lot, entered into a written contract, which provided that Dean should, in building, erect one of the walls of his building over the division line of the two lots, and that it should constitute a party wall; and Yoorhees covenanted “that whenever he, his heirs or assigns should use the wall” he or they would pay Dean or his assigns for such use. A remote vendee of Voorhees used the wall, and, being sued by the remote vendee of Dean, the court said, as to his liability:

“The next important question to be considered is whether the agreement of Voorhees to compensate Dean run with the Voorhees lot so as to bind his subsequent grantees. I do not think it did. At the time Voorhees made the covenant he received no interest in the land and granted none. He simply assented that Dean might build one-half of the wall upon his land, and then he agreed in a certain contingency, which might or might not happen, that he would compensate him. * * * There was therefore no privity of estate between Voorhees and Dean; there was simply privity of contract between them, and upon tljat relation alone could Dean enforce the covenant. * * * There is a wide difference between the transfer of the burden of a covenant running with the land and of the benefit of the covenant, or in other words, of the liability to fulfill the covenant and of the right to exact its fulfillment. The benefit will pass with the land to which it is incident, but the burden or liability will be confined to the original covenantor, unless the relation of privity of estate or tenure existed or is created between the covenantor and covenantee at the time when the covenant is made.”

This conclusion evidently shocked the instinct for right as well as the dommon sense of other courts subsequently considering the question, and it would be an interesting study, if we bad the time to devote to it, to follow the development of the law subsequent to this decision. The great majority of the courts have .reached a different conclusion. Even in New, York the decision has not been accepted without fine distinctions being drawn to evade its effect. Mott v. Oppenheimer, 135 N. Y. 312, 31 N. E. 1097, 17 L. R. A. 409; Morris v. Burr, 59 Misc. Rep. 259, 112 N. Y. Supp, 243. Some of tbe courts flatly denied the announcement that such a (Covenant, imposing the burden as well as the privilege, did not run with the land. This contrary view of the law is expressed by tbe Supreme Court of Massachusetts in tbe case of King v. Wight, 155 Mass. 444, 29 N. E. 644, in the following language:

“Where one party covenants with another in respect of land, and at the same time, with and as a part of making the covenant, neither parts with or receives any title or interest in the land, nor creates an easement, or k right in the nature of an easement for the benefit of the land, such a covenant is, at best, but a mere personal contract. * * * In the present case the agreement created an easement of use and support in favor of each lot owner and their successors in title in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land became entitled, therefore, to the benefits and subject to the burdens arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. They inhered in and belonged to it. The burdens and the benefits were inseparably connected, and the, defendant could no more avoid paying to the successors in title of Mrs. Burt for one-half of the wall when ho sought to use it than he could prevent the wall from -standing when it had been built, assuming that it was built one-half on each lot.”

The contract in that case did not expressly state that the covenants ran with the land, but did state that it should bind the heirs and assigns of each party; and the court further held that the Contract created—

“mutual covenants running with each lot.' The form of the instrument is plainly sufficient. It is under seal, binds the heirs and assigns of the respective parties, and is duly acknowledged and recorded. The fact that it does not purport in terms to create covenants running -with the land is not of much moment. The effect of the instrument is to be gathered from it as a whole.”

The great weight of the authorities have adopted this view of the law. Note to Cook v. Paul, 66 L. R. A. 673-711; Southworth v. Perring, 71 Kan. 755, 81 Pac. 481, 82 Pac. 785, 2 L. R. A. (N. S.) 87, 114 Am. St. Rep. 527; note to Dunscomb v. Randolph, 89 Am. St. Rep. 941; Rugg v. Lemley, 78 Ark. 65, 93 S. W. 570, 115 Am. St. Rep. 17, 8 Ann. Cas. 291; Ferguson v. Worrall, 125 Ky. 618, 101 S. W. 966, 9 L. R. A. (N. S.) 1261; Sandberg v. Rowland, 51 Wash. 7, 97 Pac. 1087, 130 Am. St. Rep. 1077; 30 Cyc. 792; Roche v. Ullman, 104 Ill. 11.

Other courts have held that, irrespective of the question of privity of estate or running covenants, a subsequent grantee, with notice of the agreement, should be held liable to pay for the use of the wall on the theory that the builder 'of the wall is the absolute. owner of it until the owner of the other lot pays for his part of the expense qf its erection, with an easement for support on the vacant lot, and the owner of the other lot cannot appropriate the use of the wall without paying for it. The Court of Appeals of this state, in the case of Mahoney & Evans v. Lapowski Bros., 3 Willson, Civ. Cas. Ct. of Apps. §§ 307, 308, applied this principle in a case where a subsequent vendee bought the vacant lot with notice of an oral contract as to a party wall, quoting with approval the dissenting opinion of one of the judges in a New York decision, in part as follows:

“The builder owns the wall absolutely until the other elects to use the same with a permanent right in him and his grantee to have one-half the wall stand on the lot of the other, not only while the latter retains the title, but after it has passed to an assignee with notice of the rights of the owner of the wall. If the owner of the land burdened with this easement elect to use the wall and pay half its value, he thereby becomes owner, not only of the one half upon his own land, hut has an easement in the other half. Whether a covenant to pay for the wall when used runs with the land or not, in view of a court of law, a grantee of the covenantor having notice is bound in equity, and the benefit of the covenant inures to the grantee of the building, to whom the property wall passes as an incident to the grant, and the former cannot avail himself of this agreement without being equitably bound to pay him who is the owner of the wall at the time he appropriates it.”

And Judge Wilson, who wrote the opinion, observed that:

“Although these views are those of only a single judge, they commend themselves to us as eminently reasonable and just.”

The following cases announce similar holdings: Conner v. Joy, 150 S. W. 485; Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Spaulding v. Grundy, 126 Ky. 510, 104 S. W. 293, 13 L. R. A. (N. S.) 149, 128 Am. St. Rep. 328, 15 Ann. Cas. 1105; Richardson v. Tohey, 121 Mass. 457, 23 Am. Rep. 283; 30 Cyc. 788, 792. It might not be so clear under these authorities as to whether the recovery would be determined by the terms of the contract or the value of the use of the wall appropriated, independent of the terms of the contract. That is not material here, however, as the court found that the value of the one half interest in the wall, the value of the use of the wall, and the damage sustained on account of the use of the wall without plaintiff’s consent were'each $600. So that, in either view of the decisions, the defendant would be liable unless we are to follow the case of Cole v. Hughes, supra, which we are not inclined to do.

The question as to whether the grantee of the Barnett Gibbs lot, at the time of the use of the wall by the adjoining lot owner, or Barnett Gibbs himself, would be entitled to recover under the contract would, on the face of the matter, seem to present more difficulties, and there has been more conflict of decision in arriving at a conclusion of this question. The conclusion of the later authorities in which the determination of the question is controlled by the application of the doctrine of “running covenants” is that, when the contract provides that it shall bind the assigns of the respective parties, the benefits, as well as the burden, will run with each lot, and the subsequent grantee of the owner of the builder lot, at the time of the use of the wall, will be entitled to the Recovery. Southworth v. Perring, 71 Kan. 755, 81 Pac. 481, 82 Pac. 785, 2 L. R. A. (N. S.) 87, 114 Am. St. Rep. 527; Loyal Mystic Legion v. Jones, 73 Neb. 342, 102 N. W. 621, as well as other authorities above cited.

The facts of this case are more favorable to the support of the conclusion that the recovery should be had in behalf of the owner of the lot at the time of the use of the wall than in any of the cases cited; it is said that the determination of this question is largely one of intention, and the intention to convey the right to receive the compensation is made doubly manifest in this case by the conveyance to plaintiff subsequently made by the executrix of the Barney Gibbs estate of all right in that part of the wall located on the Penniman lot. If the recovery is not on the running covenant theory, but on the independent right to compensation on the use of the wall, there is no obstacle to plaintiff’s right to recover. We conclude that under any theory of the law plaintiff is entitled to the recovery.

An exhaustive collection and discussion of the authorities will be found in the note to the case of Cook v. Paul, 66 L. R. A. 673, 711, supplemented at 2 L. R. A. (N. S.) 87. We would not have thought it necessary to have extended the opinion to this length but for the fact that while the eases of Nalle v. Paggi (Tex.) 9 S. W. 205, 1 L. R. A. 33, Id., 81 Tex. 201, 16 S. W. 932, 13 L. R. A. 50, Knowles v. Ott, 34 S. W. 295, and Arnold v. Chamberlain, 14 Tex. Civ. App. 634, 39 S. W. 201, are not in conflict in their holdings with the conclusions we have announced, it cannot be denied that the courts in at least some of those cases, proceeded on the theory that the case of Cole v. Hughes, supra, announced the law correctly. In the first case cited, Nalle and Paggi owned adjacent lots in the city of Austin. Paggi built a party wall on the division line, with a verbal understanding wi£h Nalle that when he, Nalle, used the wall, he would do what was right about it. Nalle sold his lot to Shuwirth, who was informed of the agreement about the wall by Paggi at a time when he still owed $1,500 on the lot, and who built on it and used the wall. Paggi sued Nalle and Shuwirth to recover one-half of the value of the wall. Recovery against Shu-wirth was denied on the agreement by Nalle that he would do what was right about paying for a part of the wall, because, as the court said, the agreement was “a personal promise, nothing more. It created no lien upon the wall or lot, or any interest in it of any kind,” and was not a “covenant affecting the land.” In reaching this conclusion the court quotes with approval from sai'd case of Cole v. Hughes. The same case came up on a later appeal when recovery was allowed by Paggi against Nalle, and the later decision has no bearing on this case, except on another question referred to later. In the cases of Knowles v. Ott, 34 S. W. 295, and Arnold v. Chamberlain, 39 S. W. 201, the owners of the respective lots agreed that when the owner of the vacant lot should use the wall that the other owner might erect, under the agreement, he would pay one-half the value thereof. In the Knowles v. Ott Case, the contract undertook to bind the respective parties, their heirs and assigns, and agreed that the mutual covenants might run with said lots. The contract in both cases granted a lien on the property to secure the payment of any sums of money that might become due upon the use of the wall erected by one of the parties and used by the other. In each case the vacant lot was conveyed to others under warranty deeds, without reference to the party wall agreement, and the subsequent grantee used the wall, whereupon the owner of the builder lot sued the original party to the contract, making the subsequent grantee a party, and obtained judgment against the original maker of the contract with foreclosure of the lien on the lot, but without personal judgment against the subsequent grantee, who used the wall. In each case the subsequent grantee sought to recover of his vendor on a breach of the warranty in the respective deeds in the event the lien against the lot was enforced. In the case of Knowles v. Ott, recovery w'as allowed on the breach of warranty, and in the case of Arnold v. Chamberlain, such recovery was denied; the holdings on this issue being in apparent conflict. It will thus be seen that the questions decided by these cases are not identical with the question in this case, and there is not necessarily any conflict with those cases in the conclusions we have reached. The reasoning of the court in the Arnold v. Chamberlain Case is in accord, to a certain extent, with our own holding. While the court in that case states that ordinarily a naked promise to share the cost and expense of a party wall is a personal covenant which does not run with the land, it concludes that:

“When the two owners enter into such a contract by which one agrees to pay a certain amount, one-half the cost of the party wall, we can perceive no valid reason, why this obligation may not be secured by a contract lien on the property as may be done in any other case where the owner obligates himself to another to pay a certain amount.”

We extend this holding somewhat further, and conclude that as the contract is made for the benefit of the lot and expressly binds the parties and their assigns, it is clear that it was the intention of the parties to charge the land and subsequent grantees with the payment of one-half of the expense of the wall when it should be used, throwing the burden of payment upon the party who reaps the benefit of the contract, and that, such intention being apparent, it is not necessary for the contract to grant an express lien on the land. In said case the court denied a recovery on the warranty because, as the court states, the benefits of the contract ripened into existence after the original owner of the lot had parted with his title, and at the instance of the party using the wall. “He alone elected to use and enjoy the partition wall, and if a liability and a charge upon the land result therefrom, it was his act and conduct that brought it into existence.” We extend this holding a little further, and hold that as the contract expressly bound “the assign” to pay for one-half the wall when he used it, such assign, when he voluntarily accepted the benefits of the contract, should be personally bound for the payment of the price.

While the case of Cole v. Hughes, 54 N. Y. 445, 14 Am. Rep. 611, was quoted with approval by the Oommission of Appeals in deciding the case of Nalle v. Paggi, 9 S. W. 205, 1 R. R. A. 33, that case has not been generally followed elsewhere; as we have shown by reference to the authorities, its application appears to us to lead neither to a just result, nor one that affects the intention of the parties to the party wall agreement; and, under the circumstances, we do not feel bound to follow it.

The appellant pleaded the four-year statute of limitations to the suit, and assigns error to the action of the court in not sustaining this plea. The Pennimans conveyed the lot more than four years before the institution of the suit: and, while the lot remained vacant until 1914, the appellant contends under the authority of Nalle v. Paggi, 81 Tex. 201, 16 S. W. 932, 13 L. R. A. 50, that the sale of the lot constituted a use of the wall within the terms of the contract, and that limitations began to run at such time. We think it clear that the use of the wall referred to in the contract under consideration had reference to an actual use by building thereto, since the contract provided for leaving of joist walls on the side of the vacant lot to be used by the other party, and provided for payment at the time the wall was “used by the parties of the second part, their heirs or assigns.” Berry v. Godfrey, 198 Mass. 228, 84 N. E. 304, 16 L. R. A. (N. S.) 435; 30 Cyc. 789.

The appellee presents a cross-assignment to the -action of the court in refusing to establish and enforce a lien against appellant’s lot to secure the payment of the judgment, having pleaded that the facts, as stated, made said indebtedness a lien on said land, and having prayed for foreclosure of same. The contract being for the benefit of the property it seems that it ought to be charged with its performance; the amount to become due was In the nature of the purchase price of an undivided interest in the wall. These facts we think are sufficient to create an equitable lien on the property to carry out the provision of the contract. It has been so decided in a number of cases. First National Bank v. Security Bank, 61 Minn. 25, 63 N. W. 264; Parsons v. Baltimore Building & Loan Association, 44 W. Va. 335, 29 S. E. 999, 67 Am. St. Rep. 769; Stehr v. Raben, 33 Neb. 437, 50 N. W. 327; Roche v. Ullman, 104 Ill. 11; Garmine v. Wily, 36 Neb. 340, 54 N. W. 562; Sharpe v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433.

The judgment will be reformed so as to foreclose the lien on appellant’s lot, and, thus reformed, will be affirmed.
      ^nmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=»Eoy other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    HANDLY v. ADAMS.
    (No. 5862.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 23, 1917.)
    1. Bills and Notes <&wkey; 103(1), 106 — Validity —Bonuses to Railroads.
    Plaintiff loaned defendant’s intestate $1,000, taking bis note therefor, and intestate thereupon gave the money voluntarily to a railroad company in which plaintiff was financially interested and which was securing bonuses and donations from owners of land contiguous to the prospected route of its road. From the money received from defendant’s intestate the railroad company paid plaintiff a debt of $52.80. Meld, that there was nothing illegal in the transaction; the fact that plaintiff was financially interested in the railroad not rendering the transaction fraudulent and voidable.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 219, 225-23S.]
    2. Bills and Notes <&wkey;527(2) — Paymeni^-SUFEICIENCY or EVIDENCE.
    A finding that shares of stock in a railway company had not been issued to plaintiff in payment of the note was supported by evidence showing that the only stock ever issued to plaintiff was to secure a different note, and that he never owned such stock, though it was issued in his name.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 184S, 1849.]
    3. Btlls and Notes <&wkey;519 — Actions—Sufficiency oe Evidence.
    Evidence held to support a finding that defendant’s intestate was not induced to execute such note by a promise of plaintiff or others interested in the railway company that stock would be issued to indemnify him against its payment.
    . [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. § 1802.]
    4. Bills and Notes <&wkey;494, 520 — 'Validity-Presumptions— Sufficiency oe Evidence.
    Good" faith on the part of plaintiff in his dealings with defendant’s intestate would be presumed in the absence of proof to the contrary, and where the evidence showed that plaintiff, defendant’s intestate, and others were all interested in having the railroad built, bad faith was not shown, though the enterprise failed.,
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836. 1837.]
    5. Appeal and Error <&wkey;544(l) — Review-Necessity oe Bill oe Exceptions.
    Rulings upon special instructions cannot be reviewed, where the exceptions thereto are not supported by a formal bill of exceptions, as required by the statute in force at the time of the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2412.]
    Appeal from District Court, Bee County; James R. Dougherty, Special Judge.
    Action by W. W. Adams against A. M„ Handly, administrator of J. D. Love, deceased. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    L. D. Stroud, of Beeville, for appellant. J. O. Crisp and Beasley & Beasley, all of' Beeville, for appellee.
   SWEARINGEN, J.

This is a suit by W. W. Adams, appellee, against the appellant, A. M. Handly, administrator of the estate of J. D. Love, to recover upon a promissory note and foreclose a deed of trust lien securing the payment of the note. Upon the verdict of a jury to special issues, judgment was rendered by the court in favor of appellee against appellant for the amount of the note, attorney’s fees, costs, and for foreclosure of the lien.

Appellant admitted the cause of action pleaded by appellee, but in defense averred: (1) Payment; (2) failure of consideration; (3) fraud in procuring the note.

As the errors assigned relate chiefly to the defense of fraud, we omit further reference to defense of payment an'd failure of consideration.

The facts alleged to indicate fraud are-substantially these: That appellee, together with associates, secured a charter for a railroad, projected from Beeville to Eagle Pass, and advertised that an abundance of: capital was available for the construction-of the railroad. By this scheme the conspirators intended to issue and sell to the innocent, covetous, and unwary great, amounts of the capital stock of the railroad corporation an'd, in some way, not clearly alleged, absorb the purchase price paid for the stock; to secure large bonuses and donations from owners of lands contiguous to-the prospected route of the road. Then, enriched by this fleece from the lambs, it was the intent, motive, and plan of the said high financiers to abandon the railroad and leave the fleeced with their worthless certificates, experience, and shattered hopes; never from beginning to end ever intending to construct the road, and knowing that there was no capital available and chance to build the prom--ised road. Still another allegation of fraud is that Love was induced to execute the said note by a promise from appellee that, as an indemnity against loss by reason of the execution of the note, certificates of stock of' the Nueces River Valley Railroad- Company would be issued to Love. - The facts are sufficiently stated in the discussion of the assignments.

Under the first and second assignments, appellant contends that it was error ■of the court to render the judgment herein for the reason that the jury found, in answer to special issues, that J. D. Love signed and delivered to the appellee • the $1,000 note which is the basis of this suit; that appellee paid Love $1,000 on receipt of the note; that Love, on receipt of the $1,000, gave it to R. M. Buck, the secretary of the Nueces River Valley Railway Company; that R. M. Buck of the said railroad company paid appellee $52.80, which the railroad company had promised to pay him; and that appellee, W. A. and Lee Frisby, R. M. Buck, and others were engaged in a common enterprise of promoting the railway for their mutual benefit and profit at the time of the execution of the note by Love. The second proposition submitted under the first two assignments contends that the note was voidable because the officials paid the debt of $52.80 due by the railway company to appellee out of this $1,000 given by Love to the company to be used for the railroad enterprise.

The findings show that appellee loaned the $1,000 to Love; that Love promised to pay it back to him as per the terms of the note; that Love thereupon owned the $1,000 which he voluntarily gave to the railroad company, who thereupon became the owners ■of the $1,000; that out of their own money the railroad company paid its honest debt of $52.80 to appellee. No legal or moral exception can be taken to any of the aforementioned acts of any of the participants. The fact that appellee, not an officer, was financially interested in the railroad corporation, could not, of itself, taint any of these mentioned transactions and render them' fraudulent and voidable.

The assignments are overruled.

In the next assignment, it is insisted that there was no evidence to support the jury’s answer, “No,” to the eighth special issue, which is as follows :

“Did said Buck and said Frisbys, or the said Nueces River Valley Railway Company or any of them issue to said Adams shares of stock in said railway company in payment of the note sued on?”

The evidence shows that there was issued to appellee on the 4th day of October, 1910, certificate No. 2, for 298 shares of the capital stock of the Nueces River Valley Railroad Company; that this certificate was issued to him as security for the payment of a $1,000 note executed by Mrs. M. P. Boyd, joined by R. M. Buck, Lee Frisby, and W. A. Frisby. The Boyd note mentioned, like the Love note, was secured by real estate. While the certificate was issued in the name of ap-pellee, he never owned it. No other certificate of stock of the said railroad company was ever issued to appellee. The evidence here recited is sufficient to sustain the finding of the jury in answer to the eighth special issue.

This assignment, numbered sixth in appellant’s brief, is overruled.

The seventh assignment asserts that the evidence is insufficient to support the jury’s answer, “No,” to the ninth special issue, which is as follows:

“Did said W. W. Adams, the plaintiff, either by himself or with said Frisbys and Buck, induce said Love to execute said note by promising to the said Love that they or either of them would procure the issuance of certificates of stock in said railway company sufficient to indemnify him against the payment of said note?”

The record reveals that R. M. Buck, witness for appellant, testified:

“J. D. Love was not promised anything for the execution of said note. He was interested in seeming the railroad.”

Appellee denied that he promised to procure the issuance of stock to Love to indemnify him against the payment of the note executed by Love. W. A. and Lee Frisby both testified that Love was promised certificates of stock of the railroad if he had to pay the said $1,000 note. From their testimony, no stock was to be issued until the note was paid by Love. Their testimony shows that Love was bound to pay the note. The note has never been paid, and there is no prayer for recovery of stock in the event of judgment requiring payment.

The fair inferences from the evidence fare that Love promised to convey to the railroad company 25 acres of land as a bonus to help construct the road over his land; that he borrowed the money on the said 25 acres and advanced it to the railroad company; that his profits would flow from city subdivisions on his farm.

The evidence fully sustains the jury’s answer to the ninth special issue. The seventh assignment is overruled. For the reasons above stated, the twelfth assignment is overruled.

The eighth assignment is that the jury’s finding that the appellee, in his dealings with Love in regard to the note, acted in good faith, is not supported by the evidence.

Good faith will be presumed, in the absence of proof to the contrary. There is no evidence of bad faith. On the contrary, there is positive evidence from the witnesses of appellant that appellee loaned the money in good faith to Love upon a bona fide promise from Love to repay it, all evidenced by Love’s promissory note, afterwards recognized in a letter from Love to appellee. Adams, Reese, Love, Buck, and the Frisbys, all in good faith believed the railroad could he built, and seem to have devoted their time, skill, abstract business, law and general library, and real estate to an earnest effort to build it. No one reaped the alleged illegal profits from the enterprise. All lost. Why it failed does not appear. It certainly cannot be said that an honest effort to build a railroad is fraudulent. The fraud alleged, as stated at the outset, is that appellee, to-getlier with Buck, the Frisbys, and others, never intended to have the road built, but merely conspired to induce the public to believe they so intended, thereby inducing the innocent and the credulous to buy worthless stock and donate bonuses. The evidence fails to sustain such allegations, and the jury’s verdict thereon is fully supported.

The eighth assignment is overruled for the reasons given, which also dispose of the ninth assignment, complaining of the insufficiency of tlie evidence to sustain the verdict in answer to the nineteenth special issue.

Assignment numbered 13a cannot be reviewed by us, because no ruling of the trial court upon special instructions can be reviewed by an appellate court unless the exceptions to such ruling are supported by a formal bill of exceptions, as required by the statute in force at the time of the trial of this cause. Gulf, T. & W. Ry. Co. v. Dickey (Sup.) 187 S. W. 184.

The judgment is affirmed.
      ©s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    JONES v. WICHITA VALLEY RY. CO.
    (No. 703.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.)
    1. New Trial <&wkey; 104(3) — Newly Discovered Evidence — Cumulative Evidence.
    In action for injuries from derailment of train, newly discovered evidence for which new trial was sought held to bo merely cumulative, and motion was properly denied.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 220.]
    2. New Trial <&wkey; 108(2) — Newly Discovered Evidence — Probable Effect.
    In action for injuries from derailment of train, newly discovered evidence for which new trial was sought held to show no probability that a new trial would change the result, and motion was properly denied.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 227.]
    3. New Trial <&wkey;143(2) — Misconduct of Jury — Proof—Juror’s Affidavit.
    Misconduct of jury as ground for new trial could not be proved by juror’s affidavit in view of Rev. St. art. 2021, requiring testimony of jurors to be taken in open court.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 292, 293.]
    4. New Trial i&wkey;44(3) — Misconduct of Jury —Comment on Witness — Abuse of Discretion.
    Refusal of motion for new trial on ground of juror’s comment while considering verdict on character of a witness held not an abuse of discretion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84.]
    5. Appeal and Error <&wkey;843(2) — Review-Misconduct of Jury.
    Where party seeking new trial on ground of jury’s misconduct assigns as error court’s failure to hear evidence thereof, the assignment will not be considered when court states none was offered
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331.]
    6. Appeal and Error &wkey;>215(l) — Instructions — Necessity of Objection at Trial.
    Where no objection was made to giving of a special charge or exception taken as required by Acts 33d Leg. c. 59, assignment of error relating thereto will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Trial, Cent. Dig. § 683.]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    Action by F'elix R. Jones against the Wichita Valley Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Cunningham & Oliver and Ben L. Cox, all of Abilene, for appellant. Kirby & King, of Abilene, and Thompson, Barwise & Wharton, of Ft. Worth, for appellee.
   HIGGINS, J.

Appellant, Jones, was a passenger upon a train of appellee going from Abilene to Anson. The train was derailed at about 7 a. m., December 14, 1915, and in consequence thereof appellee was injured, on account of which he brought this action for damages.

It was alleged that defendant was negligent in permitting the ties in the track to become rotten and soft, causing the spikes holding the rails in place to give, thereby permitting the rails to spread and derail the train; that defendant was further negligent in this:

“That on two and more occasions a short while prior to the derailment aforesaid, trespassers had removed some of the spikes from the cross-ties in a section of defendant’s road near where the injury occurred. That this had been called to the attention of the defendant and its employSs, and they were put upon notice of the-additional dangers in operating trains upon said road by reason of the meddlesome acts of trespassers, and plaintiff says that if it is a fact, which he does not admit but expressly denies, that some of the spikes had been removed by trespassers at the place where the injury occurred, then plaintiff says that the defendant was negligent in not properly inspecting its roadbed and track before operating its train upon which plaintiff was riding at the time of the accident. Plaintiff says that the last train that passed over said track was about 9 o’clock at night on the day before the injury. That about nine hours had passed, all of which was in the nighttime, before defendant ran its said train over the track at the time of the accident. That during said time there was no inspection of its said track by the defendant. That it became and was the duty of the defendant, which had knowledge of the meddlesome acts of trespassers theretofore on that section of the track, and knowing the liability of the recurrence of said meddlesome acts of said trespassers; to inspect said road before operating its train over the same.”

Defendant pleaded:

“That the wreck of defendant’s train alleged by plaintiff was the result of and was caused by wrongful acts of wrongdoers and trespassers, in no way connected with nor employed by defendant, and for which defendant was in no way responsible, in removing from the cross-ties of the track of defendant, at the place where' said wreck occurred, the spikes which secured and fastened the rail to the cross-ties, and in removing from the joints of the rail of defendant’s track the angle bars and bolts which held said rails in line, and in leaving said rail, from which said spikes, angle bars, and bolts had been removed, without any fastening to hold same in place, by reason of which said rail was thrown from its place and a part of defendant’s train ■was thrown from the rails and onto the cross-ties of said track.
“That said wrongful acts -were done in the nighttime without the knowledge of defendant, between the time defendant’s said train from Wichita Falls to Abilene passed safely over said track about 9:30 o’clock on the night of December 13, 1915, and the time when said train reached said place, which said wreck occurred about 6:45 o’clock a. m. on the morning of December 14, 1315, when defendant’s said train was on its return trip from Abilene to Wichita Falls, and said wrongful acts were not discovered by defendant’s employes and were unknown to defendant, although defendant exercised due and proper care to discover any defect in its said track.”

Verdict was returned and judgment in favor of the defendant.

One of the grounds of the motion for new trial was based upon the newly discovered evidence of witnesses Beeman and Olark, whose .affidavits were attached to the motion. The substance of Beeman’s affidavit was:

That on the morning of December 13th, at about 9 or 10 o’clock, he passed along appel-lee’s track at the point of derailment and “noticed one tap or nut off of one bolt that goes through the pieces that fasten the rails together on the west rail and on the inside of the track. About 8 or 10 rail lengths further north I saw another coupling of the rails where one bolt was entirely out and gone. These nuts and bolts mentioned were on the west rail as one goes north. I also noticed a number of rotten ties, and some of the spikes were partially projecting above the ties. A few days after that, I was over there and saw them cleaning .up the track where the wreck was and know that where the wreck occuiTcd is the portion of the track I have described above.”

The substance of Clark’s affidavit was:

That he passed along the track of appellee at point of derailment on afternoon of December 13th, and “noticed several spikes partially out of the ties. Some of them were one inch above the ties, and others were as much as two inches, and he also noticed that two nuts were off of two bolts that go through the iron pieces that fasten the rails together at the ends, and which he thinks are called angle bars- or fish plates, were off of the bolts and lying on the road track just under the bolts. This was somewhere between 3 and 4 o’clock in the afternoon of December 13, 1915. That the north end of said rail on the west side of the track at the place where said nuts were off of the bolts was 1% or 2 inches higher than the south end of the rail adjoining it. That he noticed several rotten ties in the roadbed. That on the next morning, which was December 14, 1915, affiant went to his place in North Park and saw the train off the track on said roadbed, and he further states the nuts were off the bolts that run through the angle bars heretofore testified about at or near the north end of the last coach that was off the track as near as he could tell by a general observation ; that he is quite certain that at least a portion of the wrecked train was over the track above described.”

It is assigned that the court erred in refusing a new trial on account of this newly discovered evidence. The testimony of the two witnesses would have tended to establish the allegations of negligence in plaintiff’s petition in two' particulars, viz.:

First. That there were rotten ties in the track causing the spikes to give and permitting the rails to spread. We find that plaintiff’s witnesses Heard and Harris on direct examination testified that they were at the point of derailment shortly thereafter and found rotten ties in the track. Therefore this phase of the testimony of Beeman and Clark was simply cumulative of evidence offered by plaintiff upon the trial in support of the first ground of negligence alleged.

Second. The affidavits tended to show that nuts and bolts joining the rails together had been removed by some one and had been so removed as early as 9 or 10 o’clock on the morning of December 13th. This evidence was therefore material upon the issue of negligence upon defendant’s part in failing to inspect and discover that the track had been so tampered with. It may be further conceded that in this particular it was not cumulative. But there was an abundance of evidence introduced upon the trial from which it is quite apparent that the derailment was caused by wrongdoers and trespassers, who— in the time intervening between the derailment at 7 a.m., and the passage of the same train over the same point on the preceding night at about 9:30 — maliciously removed all the spikes from one rail and the fish plates connecting such rail at either end to the other rails, thus leaving the same wholly unsecured; and that they also removed many of the spikes from the rails beyond and adjacent to the one left entirely unsecured. The evidence upon this phase of the case is quite overwhelming. It could hardly be contended that appellee was guilty of negligence in failing, during the night to discover the act of these wrongdoers prior to the passage over the spot of the train in question. Therefore it is not probable that upon new trial the newly discovered evidence would change the result. In such a case, it is not error to overrule a motion for new trial based upon ground of newly discovered evidence. Railway Oo. v. Scarborough, 101 Tex. 439, 108 S. W. 804.

Another ground of the motion for new trial is based upon alleged misconduct of the jury as shown by the affidavit of the juror Nesbitt, attached to the motion. ' This affidavit was to the effect:

“That while considering of their verdict, he, Nesbitt, stated to the jury that defendant’s attorneys in their argument seemed to intimate that the plaintiff, Jones, wrecked the train and hurt himself. That one of the other jurors spoke up and said, ‘You do not think Jones is too good to do that, do you?’ To which affiant replied that ‘we (meaning the jury) were not allowed to discuss his character.’ ”

Indorsed upon the affidavit was the signed statement of another juror that he had read the same and found it correct.

The language of article 2021, R. S., pre-eludes the idea that such a matter as this can be established by the ex parte affidavits of the jurors. Railway Co. v. Kelley, 142 S. W. 1005; Fox v. Railway Co., 186 S. W. 852; Railway Co. v. Tucker, 183 S. W. 1188.

Furthermore, if the alleged misconduct had been properly established, the granting of a new trial on account thereof was within the discretion of the trial court, and in this case we are of opinion that the court’s action in refusing the motion would not be an abuse of such discretion. Insurance Co. v. Railway Co., 173 S. W. 487; City of Ft. Worth v. Lopp, 134 S. W. 824; Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889.

The fifth assignment complains of the refusal of the court to hear testimony in support of the alleged misconduct of the jury. The court’s qualification to the bill of exception supporting this assignment shows that n'o testimony was offered and that the motion was passed upon as filed and presented. It may be conceded that the statute makes it mandatory for the court to hear evidence on a motion for new trial based on the ground ’of misconduct of the jury. But certainly the court will not undertake to compel a party to offer evidence in support of his motion. No evidence having been offered by appellant, the court’s failure to hear any is chargeable to him. The assignment is without merit.

The next assignment complains of the giving of a special charge requested by defendant. No objection thereto was presented or exception taken as required by Acts of 1913, c. 59, for which reason the assignment is overruled. Railway Co. v. Dickey (Sup.) 187 S. W. 184.

Affirmed.

       Forother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PEPPER v. WALLING.
    (No. 1162.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1917.
    Rehearing Denied May 30, 1917.)
    1. Executors and Administrators <&wkey;7 — Independent Executor — Necessity of Taking Oath — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3362, providing' that any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of the inventory, appraisement, and list of claims of the estate, and in view of the fact that no other articles relating to independent executorships require an independent executor to take an oath, such oath is not necessary, and designation in the will and probate of the will is sufficient to perfect the appointment of an independent executor.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20.]
    2. Executors and Administrators &wkey;>7 — Independent Executor — Waiver of Right to Office.
    Failure of a succeeding independent executor designated by the will to file an oath previous to the application of a' third person for appointment of administrator was not a waiver of his right to be appointed as executor, but, if necessary, he may take the oath after such application.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20'.]
    3. Trusts <&wkey;38 — Acceptance—Necessity of Formal Acceptance.
    A trustee appointed in a will need not formally accept the duties of his office, but if he acts in the performance of the trust, he will be held to have accepted.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 54-56.]
    4. Executors and Administrators &wkey;>7 — Independent Executor — Appointment — Discretion of Court.
    Under the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3281, 3293, providing that letters testamentary must bo granted to the persons named in the will, and before granting such letters it must appear to the court that the person to whom the letters are to bo granted is named as executor of the will, the fitness of the executor is determined by the testator, and the court is left without discretion in the matter, so that it was the duty of the court to accept the oath of an independent executor whenever tendered, and order the issuance of letters testamentary upon his request.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20.]
    5. Executors and Administrators c&wkey;7 — Administration With Will Annexed — Statute — Independent Executor.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art 3279, providing for administration with will annexed when necessary, where the executor does not accept and qualify within 20 days, if applicable to independent executors, had no application where- the independent administrator accepted the appointment by taking charge of the estate and administering its affairs, although the word “qualify” means taking oath.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20.
    For other definitions, see Words and Phrases, First and Second Series, Qualify.]
    Appeal from District Court, Wichita County ; E. W. Nicholson, Judge.
    Application by C. A. Walling for appointment as administrator of the estate of A. J. Van Cleave, deceased, opposed by J. C. Pepper, the succeeding independent executor appointed in the will. From a judgment of the court appointing C. A. Walling as administrator, J. C. Pepper appeals.
    Judgment set aside and ordered in favor of J. C. Pepper.
    R. E. 1-Iuff, Kay .& Akin, and Ralph P. Mathis, all of Wichita Falls, for appellant. Martin & Oneal, of Wichita Falls, for ap-pellee.
   HALL, J.

A. J. Van Cleave, who owned a large estate in Wichita county, Tex., and elsewhere, died in February, 1913, leaving a will, naming his only son, John Van Cleave, a minor, as sole legatee. The will contained, among others, this paragraph:

“Third. I hereby appoint my friend, Edmund Newell, of Browington, I-Ionry county, Missouri, executor of this will, without bond, and desire that no other action be taken in reference to this -will except that it be probated, and admitted to record, and that my - said executor shall have full power to manage and control said estate until my son, John Van Cleave, arrives at the age of twenty-one (21). In case of the death of said Edmund Newell, before John Van Cleave arrives at the age of twenty-one, I will that J. C. Pepper of Henry county, Mo., shall succeed him as executor, with like rights and duties.”

The will was admitted to probate in Wichita county on April 10,1913. Edmund' Newell duly qualified as independent executor of the estate. He died in December, 1914. This suit originated in the county court of Wichita county, after application made to said court by C. A. Walling, the father-in-law of John Van Cleave, for appointment as administrator of the estate of A. J. Van Cleave, deceased. Appellant, Pepper, resisted the appointment of Walling, but the county court appointed appellee permanent administrator. Appellant Pepper, appealed to the district court of Wichita county. On the day of the trial in the district court Mrs. Commie Z. Meyer, the sister of A. J. Van Cleave, deceased, and the nearest of kin to John Van Cleave, intervened and filed her application in said court, praying that she be appointed adminis-tratrix of said estate. Upon final hearing in the district court appellee was again appointed permanent administrator of the estate. From that judgment Pepper and Mrs. Myer have both appealed. Edmund Newell was the father-in-law of A. J. Van Cleave, deceased, and appellant, Pepper, was his nephew. After the death of Newell, Pepper, who had been managing the estate, under power of attorney from Newell, took charge of the property and proceeded to manage the affairs and business as executor. In the meanwhile John Van Cleave,' at the age of 17, married the daughter of appellee, Walling. The pleadings of Walling in both courts charged mismanagement and fraud against Pepper, but neither the county nor the district judge made any such findings against him, and no question with reference to his conduct of the affairs of the estate was submitted to the jury. No question of fact is involved in the appeal, and the material evidence is all uncontroverted. On October 14, 1915, as part of this proceeding, appellant, Pepper, filed in the probate court of Wichita county his application to be appointed executor of the will of A. J. Van Cleave. By his answer appellee, Walling, resisted the application of both Pepper and Mrs. Myer, upon the grounds that they had waived and forfeited their rights, one to be appointed executor and the other administratrix. • Upon issues submitted to the jury it was found that appellant had forfeited his right to be appointed executor, and that Mrs. Myer was not a suitable and proper person to be appointed administratrix, and that C. A. Walling was a proper and suitable person to be appointed administrator of said estate.

The first proposition under the first assignment urged by appellant, Pepper, is as follows:

“The will of Van Cleave having created a personal trust in appellant, Pepper, and placed the estate in his hands in trust, until the heir reached his majority, and having made him independent executor, he was not subject to the orders or jurisdiction of the county court, and neither the county coux’t nor the district court on appeal had jurisdiction to remove him or to declare his office vacant or to appoint an administrator.”

It is urged under the second assignment that neither the county court nor the district court on appeal in the same case has jurisdiction to determine whether an independent executor had waived his office because such executor was not subject to the orders of the county court. When Newell qualified as executor, he took the oath prescribe* by the statute for executors generally, and filed an inventory and appraisement of the estate. Appellant, Pepper, has never taken any oath as an executor, nor has he filed an inventory and appraisement, although the evidence shows that the estate increased in value under his administration of its affairs. It is held in Connellee v. Roberts, 1 Tex. Civ. App. 363, 23 S. W. 187, and in Patten v. Cox, 9 Tex. Civ. App. 299, 29 S. W. 184, 185, that an independent executor’s qualification is complete upon probate of the will, and his acceptance with the return of an inventory, where required by law, and it is not essential that he take an oath. It seems to-be intimated in the case of Journeay v. Shock, 105 Tex. 551, 152 S. W. 809, that an independent executor qualifies by taking the oath, but it is not held that he waives the right by delay in doing so. Vernon’s Sayles’ Civil Statutes, art. 3362, is as follows:

“Any person capable of making a will may so provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, a-ppraisoment and list of claims of his estate.”

It is shown by the record that at the time of the death of A. J. Van Cleave he owed no debts. Neither in V. S. Civ. St. art. 3362, nor in any of the following articles, relating to the matter of independent executorships, is there any requirement that an independent executor should take the oath. Unless made so by statute an oath is not necessary. Leahy v. Haworth, 141 Fed. 850, 73 C. C. A. 84, 4 L. R. A. (N. S.) 657. As stated by Judge Brown in the cast of Roy v. Whittaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367:

“All executorships are personal. trusts "in the sense that they are based upon the confidence of the testator reposed in the person named”

—and since independent executorships must necessarily arise under a will, and the testator has relieved the appointee of the duty of filing a bond, unless there is something in the instrument to indicate a contrary intention upon the part of the testator, we can see no reason why an oath should be required. The oath of executors and administrators generally, as provided by the statute, is, in substance, that the appointee will well and truly perform all the duties of executor or administrator of the estate of the deceased, and the testator has shown by his act in naming such appointee that he believes the one so named will faithfully perform such duties. The trial court held that the failure of Pepper to file the oath before the application of Walling for appointment was tantamount to a waiver 'of his right to be appointed executor. We think this holding is error. Pepper was appointed executor by the testator. IIis designation as executor to succeed Newell by the terms of the will, and the probation of the will, was, we think, sufficient to perfect his appointment. But if we are mistaken in this we know of no rule which forbids his taking the oath now. While he did not take the oath, he took charge of the pr'operty of the estate and performed all the duties inoumbent upon him as executor in a manner satisfactory to the judges of both lower courts. Occupying the place of a trustee named in the will, it was not necessary for him to formally accept the duties of the office to which the will appointed him. As said in Perry on Trusts (6th Ed.) § 260:

“Where trusts are by will vested in the executors as such, accepting and qualifying as executor accepts the trust. Acceptance may be presumed by acts of the trustee at or subsequent to the grant. If the trustee acts under the deed in the performance of the trust, he will be held to have accepted, though he has not executed the deed, and he may be liable for a breach of the trust.”

Section 262:

“At common law an executor was said to derive his authority from the will; that a trustee under a will had accepted such trust and had assumed its responsibilities was admissible to show that a trustee under a deed had accepted the office.” 29 Cyc. 252.

In this case, in the trial below, the idea prevailed that the court bad the right to inquire into the fitness of Pepper to execute the will. As said in Journeay v. Shock, supra:

“It [the granting of letters testamentary] was purely a ministerial act to be performed by the clerk independently of the judge, who exhausted his authority in that connection when he probated the will. The plain terms of the statute determine what should be done thereafter, and by whom. * * * To illustrate the difference between the granting of letters to an administrator and granting letters testamentary to an executor, we invite attention to article 1914 (Rev. St. 1895), which provides that letters of administration may be granted to any one of a number of persons mentioned, or to any person of good character residing in the county. Discretion in selecting such person is confided to the judge, which is a discretionary power, but letters testamentary must be granted to ‘the person named in the will,’ in which there is no discretion. It is purely ministerial. * * * ‘Before granting letters testamentary, it must appear to the court * * * (5) that the person to whom the letters are to be granted is named as executor in the will.’ Vernon’s Sayles’ Tex. Civ. Stats, art. 3293. This excludes the selection of an executor by the judge, and commands the issuing of letters to the person named. * * * We repeat, when the will has been probated, it becomes the duty of the judge to direct the clerk to issue letters to ‘the person named in the will,’ when ho shall qualify. There is not a suggestion that the judge may refuse to issue letters ‘to the person named in the will.’ ”

Pepper having been appointed independent executor as a successor to Newell, the question of bis fitness was determined by the testator, and we think it is the duty of the trial court to accept the oath of Pepper whenever tendered, and order the issuance of letters upon his request. He had never repudiated the appointment, nor resigned, as did the executor in the case of Roy v. Whittaker, supra. In that case Arch Murphy, Jr., had been appointed independent executor of his father’s estate, and later tendered his resignation to the county court and refused to act further, whereupon the court appointed H. M. Whit-taker administrator.

In this case Pepper has never refused to act, but has diligently and faithfully performed the duties devolving upon him as such executor. The only particular in which he has failed, if indeed it can be counted a failure, is in not taking the oath and filing an inventory and appraisement. There were no claims against the estate. Since he was diligently and carefully administering the estate, and there were no creditors, it is clear that the court was not authorized to appoint an administrator. If the conditions existed which demanded the appointment of an administrator, under the statute Mrs. Myer had the prior right. While the jury found that she was not qualified to act as administratrix, this finding is not sustained by a syllable of testimony. A discussion of this phase of the case, however, is not necessary.

Article 3279, Vernon’s Sayles’ Civil Statutes, provides that where the executor named in a will renounces, dies, becomes of unsound mind, or is removed or is disqualified, or shall neglect to accept and qualify within 20 days after the probate of the will, then administration with the will annexed shall be granted should such administration appear to be necessary. If this article was intended to apply to independent executors, it has no application in this particular case, because the record shows that appellant Pepper accepted the appointment by taking charge of the estate, performing the duties of an executor, and administering its affairs. If we construe the word “qualify,” as used in the article, to mean taking the oath, then he hasi not heretofore qualified, but administration is not authorized unless he failed to qualify, and also to accept. The right to administer the estate is further limited by the article to the necessity 'of such administration. As disclosed by this record, the estate was not indebted in any sum, and. no necessity for an administration under the statute was shown.

Without considering the assignments in detail, we think the judgment of the district court should be reversed, and the judgment of this court is that the order’appointing ap-pellee, Walling, administrator be set aside, and that the estate be delivered to appellant, Pepper, as executor for management in accordance with the terms of the will.

Reversed and rendered.
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text:
    ARMSTRONG v. MISSION INDEPENDENT SCHOOL DIST. et al.
    (No. 5856.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 9, 1917.
    Rehearing Denied June 6, 1917.)
    1. Taxation <&wkey;145 — Personal Property.
    Property consisting of improvements placed on the land of a railroad by a lessee with an agreement that it was for the use of the lessee and could be removed was .personal property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 252, 253.]
    2. Taxation <&wkey;145 — Taxation of Realty-Fixtures.
    Where improvements placed on a railroad’s right of way became realty, it could only be taxed as the property of the railroad not as the property of the railroad’s lessee, which placed it.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 252, 253.]
    3. Municipal Corporations <@=^975 — Taxation of Personalty — Lien—Statute.
    By Yernon’s Sayles’ Ann. Civ. St. 1914, art. 958, providing that all taxes shall be a lien on the property on which they are assessed, the Legislature made taxes assessed by the proper officers of towns and cities, a lien upon personalty within the town or city, similar to the lien for taxes on realty given by Const, art. 8, § 15.
    [Ed. Note. — For other cases, see Blunicipal Corporations, Cent. Dig. §§ 2022, 2087-2091.]
    4. Schools and School Districts <&wkey;104 — Lien on Personalty — Independent School District — Statutes.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2853 and 2S61, did not make applicable to independent school districts that part of article 958 making taxes levied and assessed by cities and towns a lien on the personal property against which the tax is assessed.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 246.]
    5. Taxation <i&wkey;576 — Nonpayment—Seizure of Property — Statute.
    Yernon’s Sayles’ Ann. Civ. St. 1914, art. 7627, conferring power to seize personal property, subject to a lien for unpaid taxes, in the hands of an assignee for the benefit of creditors, etc., does not authorize seizure of personalty sold to a bona fide purchaser after a delivery to him.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1155-1163.]
    6. Taxation <&wkey;507, 573% — Lien on Personalty — Personal Obligation of Purchaser.
    Taxes assessed against a cotton oil company on its personalty by an independent school district were not a lien on the personalty and not a personal obligation against the purchaser of the personalty in good faith at sale under a trust deed.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. '§§ 937-941,'1145, 1146.]
    7. Taxation <&wkey;541 — Payment Under' Protest-Recovery.
    Involuntary payment of an independent school district’s taxes on personalty, by the purchaser thereof in good faith at sale under a deed of trust, after the property had been seized by the district, did not prevent the purchaser from recovering the taxes before the money paid by him under protest and duress was disbursed by the collector.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1002.]
    Appeal from Hidalgo County Court; W. H. Gossage, Judge.
    Suit by George W. Armstrong against the Mission Independent School District , and another. From a judgment for defendants in plaintiff’s suit and their cross-action, plaintiff appeals.
    Reversed and rendered.
    Geo. P. Brown, of Laredo, for appellant. H. F. Bishop, of Blission, for appellees.
   SWEARINGEN, J.

George W. Armstrong, the appellant, sued the Mission independent school district and P. W. Barron, tax collector, appellees, to recover $405.60, paid' under protest by appellant for taxes for the years 1912 and 1913, due by the Mission Cotton Oil Company, a corporation. Appellees, by cross-action, sued for $150 for taxes for 1914, for which amount appellant gave a statutory bond. The cause was submitted as an agreed ease, authorized by article 1949, V. S. C. St., in the form approved by the Supreme Court in Scott v. Slaughter, 97 Tex. 244, 77 S. W. 950. Judgment was rendered by the court against appellant that he take nothing by his suit for the $405.60 and in favor of appellees on their cross-action for the $150.

The agreed facts are as follows:

“First. During the years 1912, and 1913, and up to January 6, 1914, the Mission Cotton Oil Company was a Texas corporation, located at Mission, Hidalgo county, Tex., and was the owner of certain houses, buildings, machinery consisting of a cotton oil mill, machinery, warehouse, and gin situated on the land belonging to the St Louis, Brownsville & Mexico Railway Company, which land was leased by the Mission Cotton Oil Company from said railway company, and that said property was located in the Blission independent school district.
“Second. That during the years aforesaid, the Mission independent school district was and still is a de jure school district under the laws of the state of Texas, having for its officers Charles W. Volz as president, and P. W. Barron as tax assessor and tax collector.
“Third. That said property was assessed for taxes on account of the said Mission independent school district during the years 1912 and 1913 and 1914 in the name of the Mission Cotton Oil Company, and that the levy and assessment of said taxes for the said years was in all things regular, legal, and valid.
“Fourth. That the amount of taxes so levied and assessed against the Mission Cotton Oil Company for the years 1912 and 1913, including interests and penalties, and paid under protest by the plaintiff, George W. Armstrong, is $405.-60.
“Fifth. That the amount of the taxes levied and assessed against the Mission Cotton Oil Company for the year 1914 and for the security and payment of which George W. Armstrong gave his bond hereinafter admitted as evidence, .and impleaded m defendant’s cross-petition, is the sum of $150. That on the 6th day of January, A. D. 1914, the -First National Bank of Brownsville offered for sale and sold all the aforesaid property at a trustee’s sale under the provisions and terms of a trust deed, which had been executed and delivered to it by the Mission Oottoh Oil Company; and the plaintiff herein, Geo. W. Armstrong, who was a stockholder in the Mission Cotton Oil Company, purchased all of said above-described property at said trustee’s sale, and by so doing became the owner and holder of all the assets of the Mission Cotton Oil Company.
“Sixth. That after the purchase of said buildings at said sale, by Geo. W. Armstrong, and after said taxes for 1912 and 1913 wore due and became delinquent and remained unpaid, after demand for payment, P. W. Barron, tax -collector for the said Mission independent school district, levied upon the two east buildings of said property, one being a warehouse and the other being the oil mill proper, for the due and delinquent taxes so assessed against the Mission Cotton Oil Company for the years 1912 and 1913, and to secure the statutory security and bond for the payment of assessed taxes for the year 1914, and advertised the same to he sold for said delinquent taxes in accordance with law.
. “Seventh. That the said Geo. W. Armstrong being then the owner of said property, and at the time engaged in dismantling said mill, preparatory to moving the same out of the district and county, and being anxious-to continue with the work thus begun, and before the sale of said property under the tax levy paid under protest the aforesaid delinquent taxes amounting to the sum of $405.60 and gave bond for the payment when due of the 1914 assessed taxes, if the same should be a charge upon plaintiff, and due notice of said payment under protest was given to P. W. Barron, tax collector as aforesaid. That the land on which said property is situated has been at all times and still is the property of the St. Louis, Brownsville & Mexico Railway Company, and was not included in the deed of trust above referred to, nor in the sale to Geo. W. Armstrong, nor in the assessment of taxes above referred to, further than the rights and privileges of the Mission Cotton Oil Company in and to said land by reason of its lease with the said St. Louis, Brownsville & Mexico Railway Company before mentioned.
“Eighth. That the amount of the taxes for the years of 1912 and 1913 in the sum of $405.60 so paid under protest is still held by P. W. Barron, as tax collector for said Mission independent school district, or he has paid the same over to said district, and no part of the same has been returned to Geo. W. Armstrong. That, at the time of said levy and advertisement for sale, plaintiff owned other property in said district sufficient to pay all of said tax.
“Ninth. That the amount of the taxes for the year 1914 assessed against the Mission Cotton Oil Company and in favor of the Mission independent school district and not due at the time of the' levy, and for the security and payment of which when due the said bond of Geo. W. Armstrong and his sureties was taken in favor of the tax collector, P. W. Barron, is the sum •of $150, and that no part of said tax has been paid, and the tax it secured is delinquent, and the said bond is hereby admitted as a part of the evidence in this cause, and a copy of same is hereto attached.”

Tile first assignment of error is as follows:

“The court erred in rendering judgment -against the plaintiff both on his cause of action -and on defendants’ cross-action, for said judgment is contrary to the law and the evidence for the following reasons, and in the following particulars:
“(1) The evidence shows that the property on which'the taxes are sought to be collected in the suit is personal property, and the general law does not create a lien on personal property for taxes.
“(2) The evidence shows that plaintiff purchased said personal property after taxes on the same had been assessed, and a part of said tax had become delinquent, and before said property was levied upon by the tax collector of said district to be sold for taxes. That therefore in law plaintiff purchased said property without notice of any tax lien and is an innocent purchaser for value without notice.
“(3) That all taxes in this suit were assessed in the name of the Mission Cotton Oil Company, and are the personal obligation of said company, which was the owner of said property at the time of assessment and which alone is responsible for the payment of said taxes.
“(4) That, though the law may provide for a lien on personal property to secure the payment of taxes, none of the facts of this case bring said property under such rule of law, and such a lien could not exist as against a purchaser of said property after the assessment of such tax, for the reason that personal property is not necessarily transferred by an intrument of record, and the purchaser could not determine by the record whether taxes on specific personal property had been paid or not, so that, while a lien might exist against the person in whose name said tax was assessed, it would not exist as against a subsequent purchaser without notice.
“(5) By this judgment Geo. W. Armstrong is bound to pay the debt or tax of another, which he in no manner has obligated himself to pay nor assumed to pay.
“(6) The levy and advertisement for sale of plaintiff’s property could not and did not create any lien thereon in favor of defendants for the taxes claimed to be due and owing or to become due and owing to defendants by the Mission Cotton Oil Company.
“(7) If it should be held that the plaintiff, Geo. W. Armstrong, owes said taxes, then the tax collector had no right to levy on said property about to be removed, for the facts show that the said Armstrong still had sufficient property in said district to pay all such tax.
“(8) The law nowhere gives independent school districts a lien on personal property to secure the payment of taxes assessed thereon, though it may provide a method of fixing such a lien; but the facts of this case show no condition arising where such a lien could be fixed apd that no lien was in fact ever fixed on said property to secure said tax.”

The property seized for the taxes of the Mission Oil Company was personal property and not real estate, because it consisted of improvements placed upon the land of a railroad company by a lessee with an agreement that it was for the use of the lessee and with the further agreement that it could be removed. V. S. C. S. 7505; Wright v. Macdonnell, 88 Tex. 140, 30 S. W. 907; Harkey v. Cain, 69 Tex. 146, 6 S. W. 637; Moody v. Aiken, 50 Tex. 65.

If it were not personal property and were real estate, it could not have been taxed as the property of the Mission Cotton Oil Company, but as the property of the railroad company that owned the land to which the improvements were affixed.

Article 958, Y. S. C. St., provides that “all taxes shall be a lien upon the property upon which they are assessed,” and by this statute the Legislature made taxes, levied and. assessed by the proper officers of towns and cities incorporated under the general law, a lien upon personal property within the town or city so incorporated similar to the lien for taxes on landed property given by the Constitution, art. 8, § 15. The Constitution creates the lien for taxes on landed property. Article 958 creates a lien on personal property in favor of cities and towns. There is no statute that expressly makes the taxes levied and assessed by independent school districts a lien on personal property within the school district, and there is no statute which makes article 958 include independent school districts. To make the taxes levied and assessed by independent school districts a lien upon personal property, -there must be a clear, definite legislative act, for there is no constitutional or general statute to that effect.

Articles 2853 and 2861 do not, directly or inferentially, make applicable to independent school districts that part of article 958 which makes the taxes levied and assessed by cities and towns a lien on personal property against which the tax is assessed.

The statute, article 7627, treating of taxation in general, may possibly be applicable to independent school districts; but that statute, if available, cannot authorize the seizure of the personal property under the facts of the ease at bar. That article (7627) confers power to seize the personal property in the hands of an assignee for the benefit of creditors, in the hands of a sheriff who holds it by virtue of an attachment or other writ, or in the bands of an administrator or other representative of a decedent. Under such circumstances, the claim for unpaid taxes is declared to be a first lien, and, if not paid, the personal property can be seized and sold. In each of the cases enumerated in the last-mentioned article 7627, the legal title is in the assignee, sheriff, or representative for the purpose of paying debts, after which the remainder is to be delivered to the taxpayer or his estate. In the case at bar, the personal property was sold to a bona fide purchaser and had been delivered to him. When seized for taxes due by the Mission Cotton Oil Company, the personal property was not in the hands of an assignee for the benefit of creditors, nor in the hands of a sheriff, nor in the hands of an administrator or other legal representative of a decedent. It was in the possession of a bona fide purchaser who owned it. Hence the facts here do not bring this case within the purview of that statute (7627), even if it were available to independent school districts.

Associate Justice Bookhout, in the case of People’s National Bank v. City of Ennis, 50 S. W. 632, held that article 7627 was not made to apply to cities and towns, conse-quently independent school districts by article, then numbered 5198, under chapter 4, tit. 104, upon the subject of taxation. But since that opinion the article 5198 has been slightly changed and has been transposed to the present chapter 7, tit. 22, subject, Cities and Towns, and is numbered now 961. It may be that the change in and the transposition of the article destroys the force of the opinion mentioned. However, the determination of that question is not necessary to our decision in the case at bar.

The taxes assessed against the Mission Cotton Oil Company on the personal property involved- herein, by the Mission independent school district, was not a lien upon that personal property and was not a personal obligation against the appellant. Neither did the involuntary payment of the taxes by appellant after the property had been seized by the appellees prevent appellant recovering same before the money so paid under protest and duress was disbursed by the collector. Galveston County v. Gorham, 49 Tex. 279.

We conclude that the agreed facts of this case show that appellees had no lawful authority to seize the property involved, and have no right to hold the money paid under protest and duress by appellant, and have no authority to enforce the payment of the bond required of appellant for the 1914 taxes assessed against the Mission Cotton Oil Company.

The assignment is sustained.

The judgment upon the cause of action and the cross-action is reversed, and here rendered in favor of appellant.

Reversed and rendered.
      (S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes