text:
    ARMSTRONG et al. v. W. T. RAWLEIGH MEDICAL CO.
    (No. 8209.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 5, 1915.
    Rehearing Denied July 3, 1915.)
    1. Monopolies <S=»17 — “Trust”—Restraint op Trade.
    A contract for sale of goods by a manufacturer to a retailer, he agreeing to sell none other than its products, and to have no other business, is invalid as creating a trust, defined by Vernon’s Sayles’ Ann. Civ. St.' 1914, art. 7796, as a combination of capital, skill, or acts by two or more to prevent competition.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <@=»17.
    For other definitions, see Words and Phrases, First and Second Series, Trust.]
    2. Commerce @=o40 — Anti-Trust Act-Interstate Commerce.
    A contract for the sale of goods to be retailed in the state, the buyer to sell only the seller’s products, is not saved from invalidity as creating a trust in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, because of its providing for interstate shipment thereof.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. <§=>40.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    Action by the W. T. Rawleigh Medical Company against W. F. Armstrong and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Dean & Zweifel, of Granbury, and W. E. Myres, of Cleburne, for appellants. Estes & Estes, of Granbury, for appellee.
   BUCK, J.

The W. T. Rawleigh Medical Company filed suit in the district court of Hood county against W. F. Armstrong, as principal, and three named parties, as sureties or guarantors, for debt, in the sum of $600, arising under the contract hereinafter set out. The court having sustained defendants’ plea of privilege to be sued in the county of their residence, the case was transferred to the district court of Somervell county. From a judgment in, favor of the plaintiff, in a trial before the court without the aid of a jury, the defendants appealed.

Plaintiff alleged that it was a private corporation, incorporated under the laws of Illinois, having its principal office and place of business at Freeport, Ill. and that on or about July 21,1911, the defendants entered into the contract, a copy of which was alleged to be on file with the lrapers in the case, and under said contract it agreed to sell and deliver to defendant Armstrong, f. o. b. Memphis, Tenn., on credit and at wholesale prices, certain extracts, toilet articles, perfumes, etc., and that by the terms of said contract with Armstrong as principal, and the three named parties as sureties or guarantors, they promised to pay therefor and remit to plaintiff at such times and in such amounts as specified.

Defendants in their answer alleged that the written contract pleaded by plaintiff was in violation of the anti-trust laws of the state, to wit, chapter 1, tit. 130, arts. 7796, 7798, Vernon’s Sayles’ Texas Civil Statutes, and that, therefore, said contract was null and void, and that plaintiff could not recover thereunder.

In its supplemental petition plaintiff alleged that said shipment of goods was and came under the terms of interstate commerce, because plaintiff was a nonresident of the state of Texas and the defendants residents of said state, and that, therefore, the said laws of Texas did not apply to nor prohibit said contract.

In their three assignments of error appellants urge: First, that the court erred in overruling the defendants’ general demurrer to plaintiff’s petition, because the same stated no cause of action, in that the contract shows on its face that it undertakes to prevent competition in business, and shows that one of the parties to said contract should have no other business, occupation, or employment other than that specified in the contract, and that he was not permitted thereunder to purchase articles of merchandise from any person other than the other contracting party; second, that the court erred in overruling the defendants’ special exception to the plaintiff’s petition, 'because the contract as set out in said petition is in violation of the anti-trust laws of the state of Texas ;■ and, third, that the court erred in rendering judgment in this case for plaintiff, inasmuch as the uncontradicted evidence shows that the contract between the plaintiff and defendant Armstrong, when construed in its entirety and taken in connection with the letters of instruction admitted in evidence, and with the booklet of instructions admitted in evidence, and the agreement limiting the said Armstrong to certain territory is a violation of the anti-trust laws of the state of Texas, and should not be upheld.

But in discussing the ease we will confine ourselves to a consideration of the original contract as pleaded by plaintiff, and to which reference is made in its petition. This contract reads as follows:

“Whereas, W. F. Armstrong of Georges Creek, Tex., desires to purchase of the W. T. Raleigh Medical Company, of Freeport, Ill., on credit and at wholesale prices, to sell again on his own account to consumers, medicines, extracts, spices, soaps, toilet articles, perfumes, stock and poultry preparations, and other products furnished by it, paying his account for such goods in installments as hereafter provided :
“Therefore he hereby agrees to sell no other products than those sold him by said company, and to have no other business or employment.
“He further agrees to pay said company for all products purchased under this contract the current wholesale prices of such products, by remitting in cash each week to said company an amount equal to at least one-half the receipts from his business until his account is balanced, and, for that purpose, as evidence of good faith, he shall submit to said company weekly reports of his business; provided, however, if he pays his account in full on or before the 10th day of each month, he is to be allowed a discount of S per cent. (3%) from current wholesale prices. When the sale or purchase of products under this contract shall be permanently discontinued for any reason or upon notice given by either party, he further agrees to settle in cash, within a reasonable time, the balance due said company on account. Unless prevented by strikes, fires, accidents, or causes beyond its control, said company agrees to fill and deliver on board ears at place of shipment his reasonable orders, provided his account is in satisfactory condition, and to charge all products sold him under this contract to his account at current wholesale prices; also to notify him promptly of any change in wholesale prices.
“Said company further agrees to furnish him free of charge on board ears at place of shipment a reasonable amount of first-class advertising matter, report and order blanks, and printed return envelopes for his use; also to furnish him, free of charge, after he has ordered goods, suggestions and advice, through letters, bulletins, and booklets, as to the best methods of selling products purchased by him to consumers ; but it is expressly agreed that nothing contained in such suggestions and advice shall be construed as in any way modifying the terms of this contract.
“This contract is subject to acceptance at the home office of the company, and is to continue in force only so long as his account and the amount of his purchases are satisfactory to said company: Provided, however, that said W. F. Armstrong or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account.
“The W. T. Raleigh Medical Go.,
“[Seal.] By W. T. Rawleigh, President.
“W. F. Armstrong.
"[Salesman sign here in ink or indelible pencil.]
“Accepted July 21, 1911, at Freeport, Illinois.
“In consideration of the W. T. Raleigh Medical Company extending credit to the above-named person, we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time shall not release us from liability under this guaranty.
“Responsible men sign below in ink or indelible pencil. •
Names. Occupation. P. O. Addresses. John C. Thomas. Farmer. Georges Greek. W. R. Murphy. Farmer. Georges Greek.
B. F. Parker. Farmer. Georges Greek.
“The above guarantors are entitled, upon request at any time, to a statement of principal’s account.
“To insure prompt consideration of contract, names, occupations, and full addresses must appear plainly in above spaces.”

It will be noted that in paragraph’ 2 of said contract W. F. Armstrong “agrees to sell no other product than those sold him by said company and to have no other business or employment.” By this provision it was evidently intended to prohibit the defendant Armstrong, during the life of the contract in question, either to buy for sale or sell any other goods, wares, and merchandise except those handled and sold by the plaintiff company. And in the succeeding paragraph the defendant Armstrong further “agrees to pay said company for all products purchased under this contract the current wholesale price of such products.”

In Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27, the Supreme Court, speaking through Chief Justice Gaines, and in discussing the contract between the brewing company and W. M. Norwood & Go., as principals, and R. B. and Ward Templeman, as sureties, held that, where the brewing company agreed to-furnish beer and ice at certain stipulated prices, and where Norwood & Co. bound themselves to handle no other beer than that of the Texas Brewing Company, except with the express written permission of said brewing company, and to pay for the merchandise purchased under said contract with acceptances of each and every invoice, that such contract was in violation of the act of March 30, 1889 (Act 20th Leg. c. 117), entitled:

“An act to define trusts, and to provide for penalties and punishment of corporations, persons, firms, and associations of persons connected with them, and to promote free competition in the state of Texas.”

This act was virtually the same as is now found in chapter 1, tit. 130, art. 7796, Vernon’s Sayles’ Tex. Civ. Stat., with certain amendments made thereto which do not affect the application of the law to the case herein presented to us for consideration. It was held in the cited case that:

The contract provided for “a union of the capital of both parties and a union of the skill of one of them. The contract itself and what was done under it are acts of combination. ■* * * By the agreement the brewing company bound itself to give to Norwood & Co. the sole representation and sale of its products in and near the town of Navasota and the latter placed themselves under the reciprocal obligation to sell no other beer than that of the company. The effect of the contract is evidently to create and ‘carry out restrictions in trade’ and ‘to prevent competition’ in the ‘sale and purchase’ of ‘commodities’ — namely, beer and ice. Clearly the act in question forbids such agreements. The statute denounces penalties for the violation of its provisions, and expressly declares ‘that any contract or agreement in violation of the provisions of this act shall be absolutely void and not enforceable' either in law or equity.’ ”

It was held, in that case that no question of interstate commerce was involved, and hence the court did not discuss the effect that such phase would have upon the contract. But in the case of Fuqua v. Brewing Co. 90 Tex. 298, 35 S. W. 29, 750, 35 L. R. A. 241, this latter contingency is discussed. In the last-cited" case the court held that an agreement between the brewing company and a dealer in this state, whereby the company bound itself not to sell any beer of its manufacture to any other party in the city of the dealer’s residence or its vicinity, and that the dealer would not sell any beer not manufactured by the company, was a combination of capital and acts, the tendency and purpose of which was to “create and carry out restrictions in trade” and “to prevent competition in sale' or purchase of commodities,” which created a trust as is prohibited by the act of 1889 to which reference is made above, and, further, that the beer being manufactured in another state, such transaction, so far as it provided for the sale and purchase of beer to be transported from Wisconsin to Texas, and there delivered to the dealer, was interstate commerce, and not subject to state regulations without the consent of Congress, nor was the regulation prohibited by the statute; but, so far as the contract so dealt with the subject after it had ceased to be an article of interstate commerce as to create a trust as above shown, it was in violation of the statute, and, a portion of the contract being void, the taint of illegality affected and destroyed the whole. In the discussion of the ease Justice Denman, speaking for the court, says:

“In the celebrated ‘Original Package Case’ of Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. 681, 34 L. Ed. 128], the Supreme Court of the United States held that beer imported by a resident of one state into another for sale retained its character as an article of interstate commerce, exempt from regulation by the statutes of such other state, until disposed of by such nonresident importer in such other state in the original packages in which it was imported. As we understand this and other decisions of that learned court, such articles lose such character and exemption, and so ‘become part of the common mass of property within a state as to be subject to its unimpeded control,’ when so disposed of by such nonresident importer, or when offered for sale by him in broken packages or by retail. It is clear, then, that when any shipment of beer was delivered under the contract by the company to Kingsbury at Amarillo, the title thereby vesting in him as we have seen above, the same ceased to be an article of interstate commerce, and in so far as the contract dealt with it thereafter it was not a contract with reference to an article of interstate commerce, and the clause of the Constitution above quoted does not prevent said statute from invalidating same. The case then comes to this: The parties contracted for the sale and purchase of beer to be transported from Milwaukee to Amarillo, to be there delivered to Kingsbury and become his property. So far the transaction was interstate commerce, and not subject to state regulations without the consent of Congress, nor did the statute undertake in any way to regulate or prohibit same. But the parties by the same contract voluntarily went further, and so dealt with the subject after it had ceased to be an article of interstate commerce as to create a ‘trust,’ as above shown, in violation of the statute. A portion of the stipulations of the contract being lawful and the others unlawful, the taint of illegality affects and destroys the whole. Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053. The commerce clause of the Constitution was not designed to protect the contractual rights of a person who thus voluntarily intermingles an otherwise legal interstate commerce transaction with an entirely local and unlawful one. We are therefore of the opinion that, independent of congressional action, the contract sued upon was void.”

By the terms of the contract in the instant case the plaintiff attempted to exercise a control of its products after they had become the property of the defendant Armstrong, and to prescribe limitations and restrictions with reference to the sale thereof, and we, or at least a majority of the court, think that, in this respect, the contract cannot be distinguished from that held in the Fuqua Case to be inhibited by law. The writer has some doubt about this case not being distinguishable from the Fuqua Case. In the case of J. R. Watkins Medical Co. v. Johnson, 162 S. W. 394, it was held by the Court of Civil Appeals for the Fourth District, opinion by Justice Taliaferro, that a contract very similar in character was violative of articles 7796 and 7798, Revised Statutes 1911, and was not protected by virtue of the interstate commerce character of the original transaction. In Wood v. Ice & Coal Storage Co., 171 S. W. 497, the Court of Appeals for the Fifth District, opinion by Justice Rasbury, held in a case that did not involve the interstate commerce feature that a contract whereby a retail ice dealer agreed to purchase all his ice from a certain manufacturer and wholesaler so long as the latter could supply his demands, and the wholesaler agreed to sell a certain quantity and as much more as possible to a retailer at a fixed price unless the market price should go below that when the market price should prevail, was contrary to Revised Statutes 1911, art. 7798, subd. 1.

We are cited by appellee to a number of authorities contended to be in support of the validity of a contract similar to the one under consideration, but, except as to the case of McCall v. Stiff Dry Goods Co., 142 S. W. 659, we do not think they are in conflict with the holding in the leading case of Fuqua v. Brewing Co., supra, and, as tliese cases are rather fully discussed by Judge Taliaferro in Watkins Medical Co. v. Johnson, supra, no good purpose could be subserved by a fuller discussion here. We are not able to harmonize the case of McCall v. Stiff Dry Goods Co. with the holding of the Supreme Court in Brewing Co. v. Templeman, and Fuqua v. Brewing Co., heretofore cited, and we concede that the McCall Case is in conflict with these authorities and with this opinion. See T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919, and Welch v. Wind Mill Co., 89 Tex. 653, 36 S. W. 71, the last-cited case distinguishing between a contract of agency and one between vendor and vendee.

Being of the opinion that the contract upon which plaintiff bases his right of recovery is in violation of article 7796, and perhaps also article 779S, c. 1, tit. 130, Vernon’s Sayles’ Texas Civil Statutes, it is the order and judgment of this court that the judgment of the trial court be reversed, and judgment be here rendered for appellant.

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


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    COLEMAN et al. v. CROWDUS et al.

    (No. 8201.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 22, 1915.
    Rehearing Denied July 3, 1915.)
    1. Taxation <©=>734 — Tax Sale — Defenses —Assessment.
    Where the state secured a judgment for delinquent taxes on land for a series of years, in one of which the land was not assessed, such judgment, and a sale of the land thereunder, were invalid, since an assessment, as -provided by law, is a condition precedent to a lawful foreclosure of a state’s lien for taxes and a sale thereunder, irrespective of the provisions of particular statutes, regulating the forced collection of delinquent taxes.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470-1473; Dec. Dig. <©= 734.]
    2. Taxation <@==647 — Tax Sale — Judgment —Docket Entry.
    Where, in the s'tate’s suit to foreclose its lien on land for delinquent taxes, the judgment and sale thereunder were invalid because such judgment included taxes for a year in which-the land had not been assessed, and for which the petition did not pray, the sale could not be sustained by regarding as the judgment an entry-on the trial court’s docket of “Judgment for the plaintiff for foreclosure as prayed,” thus treating the inclusion of the unassessed year in the formal judgment as a clerical mistake of substituting it for another specified in the petition, no motion to correct having been made below, since the formal judgment entered by the clerk on the minutes, and subsequently approved, was to be accepted on appeal as conclusive.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1312-1315; Dee. Dig. @=>647.]
    3. Taxation <©=o667 — Tax Sale — Excessive Judgment Foreclosing State’s Lien.
    Judgment in state’s suit to foreclose lien for delinquent taxes for a series of years, including 1885, for an amount covering the tax for such year, for which no tax was claimed by the petition to be unpaid, was excessive.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1350; Dec. Dig. <©=>667.]
    4. Taxation <©=>417 — Assessment—Unknown Owner — Statute.
    Under Rev. St. 1911, art. 7563, cl. 1, providing that in assessing unrendered property it shall be listed and assessed “in the name of the owner; if unknown, say ‘unknown,’ ”— where the former owner of land was dead, and it appeared that the assessor knew the fact, his assessment to such former owner by name was invalid.
    [Ed. Note. — For other cases, see Taxation. Cent. Dig. § 699; Dec. Dig. <©¿>417.]
    5. Taxation <©=>439 — Assessment—Unknown Owner — Statutes.
    Rev. St. 1911, art. 7527, providing that no assessment of real property shall be illegal by reason of its' not being assessed in the name of the owner, did not validate the assessment of unrendered property formerly owned by a decedent, known to the assessor to be dead, to such decedent by name, invalid under article 7563, providing that unrendered property shall be assessed “in the name of the owner; if unknown, say ‘unknown’ ”; since article 7527 applies only to assessments' of land rendered for taxation by the owner. .
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 770, 771; Dec. Dig. <©=>439,]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Suit by John Roy Coleman and Clyde Sea-brook, by next friend, against R. L. Crowdus and others. Judgment for defendant Crowd-us, and plaintiffs appeal.
    Reversed, and rendered for plaintiffs.
    McCart, Bowlin, Terrell & McCart, of Ft. Worth,.for appellants. W. R. Booth, of Ft. Worth, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

John Roy Coleman and Clyde Seabrook, by next friend, sued to recover title and possession of lot 15, “Land 500,” in the city of Ft. Worth. Later they instituted a suit to'set aside a judgment and tax sale under which the defendant R. L. Crowdus, through mesne conveyances, claimed the lot in question. The two suits were consolidated and in a trial before the court without a jury judgment was rendered for the defendant Crowdus.

No conclusions of fact or of law were filed by the court, but the evidence on the controlling issues in the case is substantially undisputed. Omitting evidence which relates to questions presented to us that we deem it unnecessary to notice, the following are the undisputed facts; Prior to the month of March, 1892, John Coleman was the owner of the lot in controversy. During that month he intermarried with Beulah Donahue, after which he built upon the premises in controversy a dwelling which was occupied by himself and wife as their home, and upon which, on the 15th day of December, 1892, the plaintiff John Roy Coleman was born. After-wards during the month of December, 1893, John Coleman died. The widow, by proper proceedings in title probate court, caused the premises to be set apart to her as homestead and continued to occupy it with her said son for some time, after which she removed to Seattle, Wash. Thereafter, in the year 1896, Mrs. Beulah Coleman was married to G. W. Seabrook, and of this union was born one child, Clyde Seabrook, one of the plaintiffs in this suit. All of the parties named continued to reside at Washington and in the state of California until and after the death of G. W. Seabrook and of Mrs. Beulah Seabrook, who died in March, 1915, and left as her only surviving heirs the plaintiffs John R. Coleman and Clyde Seabrook. The facts further show that on the 20th day of November, 1915, the state of Texas filed suit in the district court of Tarrant county to recover alleged unpaid and delinquent taxes on the lot in controversy, due to the state, in the sum of $16.10, county taxes $21.24, fees allowed by law amounting to $20.25, including a penalty amounting to 10 per cent, of the taxes for the years including and since the year 1897, with interest on said taxes from the 1st day of January next succeeding the years for which it was alleged the taxes were delinquent and unpaid. The state alleged that for the charges named it was entitled to a lien and sought its foreclosure. The citation directed the officer to summon “Unknown Owner, Beulah Coleman, John Coleman, and John S. Coleman, whose residence is alleged to be unknown.” The record shows that Ike Wynn, Esq., was appointed by the judge of the district court to answer for the defendant unknown 'owner and others. He filed a general demurrer and general denial, and judgment was rendered—

“in favor of the plaintiff state of Texas for unpaid and delinquent taxes for the years 1893, 1895, 1899, 1900 to 1904, inclusive, and that said taxes, together with interest, penalties, amount to the sum of $82.29, and judgment is rendered for said sum and costs and for foreclosure of tax lien upon said property.”

As shown in both the petition and in the citation, the years for which it was alleged the taxes were due and delinquent were the years 1885,18S6, 1893, 1899 to 1904, inclusive. It thus appears that in neither petition nor citation was it charged that the taxes were due and unpaid on the lot in controversy for the year 1895, one of the years included in the judgment of foreclosure, as above recited. Nor does it appear that there was in fact any assessment made for the taxes of this year, or that any delinquency for taxes existed for the year 1895. It was alleged, as shown by the schedule of assessments attached as an exhibit to the state’s petition, that for the years 1885, 1886, and 1893 the property was unrendered, but assessed against John S. Coleman. Eor the years 1899 and 1900 it was assessed against Beulah Coleman; for the years 1901 and 1902 against unknown owner; for the years 1903 and 1904 against John Coleman. The undisputed evidence shows that while the assessments for the years 1903 and 1904 were entered as against John Coleman, the fact was that the assessor did not know who the owner was, and that the assessment had been made against John Coleman as the owner “because he had at. one time owned the property, the real ownership being unknown.”

On this state of facts we fail to see how it can be seriously contended that the state’s judgment for taxes can be upheld. We need not refer to the terms of the particular statutes authorizing the forced collection of delinquent taxes, for under every tax law we think it may be truly said that an assessment, as provided by law, is a condition precedent to a lawful foreclosure of the state’s lien and a sale under the proceedings. See Clegg v. State, 42 Tex. 605. In the case before us there was no assessment at all for the year 1895. In answer to this manifest defect in the judgment appellee has caused to be made part of the record an entry on the trial court’s docket in the following words: “Judgment for plaintiff for foreclosure as prayed for $82.24 and costs” — and insists that this entry should be regarded as the true judgment in the case, and that the entry of the year 1895 in the judgment was' evidently a clerical mistake of substituting 1S95 for the year 1885, but no motion in the court below was made to correct the mistake, if any such there was, arid authority need scarcely he cited for the proposition that the note upon the trial court’s docket cannot be accepted here as the judgment of the court. The judgment as entered by the clerk upon the minutes of the court, and which has been subsequently approved by the court, is the final and authentic declaration of the law as to the court’s action, and must be accepted by us as conclusive. In this connection it may be further observed that the record makes it evident that the amount of the taxes for the year 1885 alleged to have been due was included in the judgment, and there not having been any taxes due for the year 1895, and the judgment not having foreclosed a lien for the year 1885, it is manifest that the judgment to the extent of the alleged delinquent taxes for the year 1885 is excessive, for which cause alone it may be said that the tax sale in question was void.. See Eustis v. City of Henrietta, 91 Tex. 325, 43 S. W. 259; Lufkin v. Galveston, 73 Tex. 343, 11 S. W. 340.

Again, the law specifically provides that in the assessment of unrendered property the assessor shall list and assess such property in “the name of the owner; if unknown, say ‘unknown.’ ” See R. S. 1911, art. 7563, cl. 1. And it is manifest from the statement of facts already given that in the instance before us the assessor for more than one of the years for which the tax lieu was foreclosed assessed the property against John Coleman, when in truth the owner of the property was unknown to him, such assessment being in direct contravention of the express direction of the law. In Yenda v. Wheeler, 9 Tex. 408, a tax sale was held to be invalid where it appeared that an assessment purported to be made in the name of the owner, but where in fact it was not that of the owner and did not appear to be so except from the county map. In the case of Wren v. Scales, 55 Tex. Civ. App. 62, 119 S. W. 879, this court held that a judgment for delinquent taxes and , sale -thereunder was void where it appeared that the assessment was against an unknown owner when in fact, by the exercise of proper diligence, the name of the owner could have been ascertained. The converse of the proposition, it seems to us, is also true; that is, that in cases where the name of the owner of property assessed for taxation is unknown, and the assessor lists and assesses it as against a named individual not the owner, the assessment cannot be upheld. See, also, Pfeuffer v. Bondies, 42 Tex. Civ. App. 52, 93 S. W. 221; Mote v. Thompson, 156 S. W. 1105. In the ease before us it is clear that John Coleman had been dead for years prior to the assessment of 1903 and 1904, and was known to have been so, for not only did the probate records show the death of John Coleman, and hence conveyed the information that the title to the property in question descended to his legal heirs, but the records of the tax assessor himself showed that the property had been assessed for the four years preceding 1903, first, to Beulah Coleman, and then as against an unknown owner.

In this connection we should perhaps notice article 7527 of our statutes, which appellee urges in opposition to the cases herein-above last cited. The article referred to reads:

“All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided; but no assessment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof.”

This article, however, constitutes a part of chapter 11 of the title on taxation, which, among other things, relates to the “mode of rendering” property for taxation. In this chapter the assessor is required to list and assess real property rendered for taxation by the owner in the name of the “owner.” See articles 7517 et 7518. Article 7563, however, which requires the property to be listed and assessed in “the name of the owner; if unknown, say ‘unknown’ ”■ — is part of chapter 12, and is made to specifically apply to un-rendered property. We think, therefore, that article 7527 should be limited in its application to cases where the owner has made rendition of his lands for taxation, to the end that all of the articles may be harmonized and given appropriate effect as far as possible. There is good reason, as it seems to us, for the distinction, for where the owner lists or renders his lands for taxation, he has full notice of the assessment in whatever name the property is listed, and there is, hence, reason for special provision that an error or mistake in entering the name of the owner shall not invalidate the assessment. But the case is different where the owner has not listed his property and it is assessed against an unknown owner. In this class of cases the notice of assessment is wholly constructive, and the owner may justly insist that before his property is taken it should be made to appear that all of the requirements of the law have been strictly followed. \

On the whole we conclude that the judgment and tax sale and deeds under which the defendant claims should be set aside, and that the judgment as rendered below should be reversed and here rendered for appellant, removing the cloud from the title and granting unto them possession of the premises in controversy, without prejudice, however, to their relative rights as between themselves.

BUCK, J., not sitting.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    BURKE-SIMMONS CO. v. KONZ.
    (No. 8199.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 29, 1915.
    Rehearing Denied July 3, 1915.)
    Bis Pendens <@=313 — Notice oe Pendency oe Action — Statutobx Peovisions.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6837-6839, authorizing notice of pendency of any suit involving title to real estate, and providing that the pendency of a suit shall not prevent effective transfers to a third person, unless notice shall have been properly filed, supersede the common-law rule, and a judgment canceling vendor’s lien notes is not binding on a transferee of the notes not a party to the action and not appearing therein, where the transfer was made prior to the action, though the transfer was not filed for record until thereafter but before judgment, and where plaintiff therein did not file notice of lis pendens.
    [Ed. Note. — For other cases, see Bis Pendens, Cent. Dig. § 23; Dec. Dig. <@=3l3.]
    Appeal from -District Court, Comanche County; J. H. Arnold, Judge.
    Action by Paul Konz against the Burke-Simmons Company and others. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Kearby & Kearby, of Comanche, for appellant. W. T. McPherson, of Comanche, for ap-pellee.
   BUCK, J.

The appellee, Paul Konz, filed this suit against the BUrke-Simmons Company, a corporation, and W. H. Everidge, and J. J. Pitts. The petition contained two counts, the first in trespass to try title for the lot in controversy, and the second alleging that plaintiff was the owner of three certain vendor’s lien notes executed by one G. B. Moore to H. B. Cox, and due, respectively, January 1, 1907, 1908, and 1909, with interest and attorney’s fees, which notes were given as a part of the purchase money for a certain lot located in the town of Comanche, and were duly transferred by an instrument in writing to appellee by said Cox. Said count further alleged that the Burke-Simmons Company and J. J. Pitts were in possession of said property claiming same under mesne conveyances from G. B. Moore, and that W. H. Everidge was asserting some sort of claim thereunder, which was inferior to the claim of the plaintiff. The Burke-Simmons Company answered, denying the plaintiff’s count in trespass to try title, and, as to the second count, admitting that H. B. Cox conveyed the land in controversy to G. B. Moore, and that defendant Pitts acquired the land by mesne conveyance from G. B. Moore, and that the defendant Burke-Simmons Company acquired the same from Pitts for a valuable consideration on June 3, 1913. It further alleged that said defendant Burke-Simmons Company was the legal and equitable holder and owner of said property. It further pleaded, in the way of a special answer, that on April 8, 1913, defendant Pitts sued H. B. Cox in the district court of Comanche county in trespass to try title for the property in controversy and to cancel said notes and the lien declared on by plaintiff and to remove the same as a cloud on his title; that Cox was duly served with citation, and on April 19th filed his disclaimer therein, and on April 23d the court rendered its judgment for the said Pitts, sustaining the plea of limitation, the said Pitts having alleged that said notes were more than four years past due, and having specially pleaded the statute of limitations of four years; and the court finding that said Cox was the record holder and owner of said notes and lien, and that said Pitts was the owner and holder in fee simple, it rendered judgment canceling said notes and awarding recovery of said property to the said Pitts, and divesting said Cox of all title therein; and further pleaded that said judgment was a valid and subsisting judgment; that at the time of the filing of said suit, and up to the filing of the disclaimer therein of said Cox, said Pitts had no notice that the plaintiff in this suit, Paul Konz, had purchased or claimed any of said vendor’s lien notes executed to said Cox, and that the transfer thereof was not recorded until after the filing of said suit by said Pitts; and alleging that said Konz had actual notice of the pendency of said suit to cancel said notes and lien against said Cox, and that said Konz was a purchaser pendente lite, and defendant Burke-Simmons Company pleaded such facts and judgment as an estoppel and res adjudicata of the plaintiff’s right to recover in this case. The defendant Pitts adopted the pleadings of the defendant (Burke-Simmons Company) in so far as same applied to him, and the defendant (Everidge) filed his plea tendering the question of boundary only as to himself.

Trial was before the court without the aid of a jury, and resulted in a judgment for the plaintiff as prayed for, and correcting the boundary as to W. H. Everidge as prayed for by him. The defendant (Burke-Simmons Company) alone appeals. '

' No statement of facts appears in the record, but the court filed his findings of fact and conclusions of law, which, for the sake of brevity, we will give, in substance, as follows:

(1) That H. B. Cox is the common source of title.
(2) That on February 20, 1906, said Cox, by a deed of that date, sold to G. B. Moore the lot described in plaintiff’s petition, and that said Moore executed to said Cox three certain vendor’s lien notes of even date therewith, each for the sum of $116.66, and bearing 10 % interest from date until paid, etc., it being provided in said notes and said deed that the vendor’s lien was expressly retained to secure the payment of said notes.
(3) That on October 23, 1910, for a valuable consideration, said Cox, by an instrument in writing of said date duly acknowledged, transferred to Paul Konz said three notes mentioned above, and all the interest that said Cox had in said land and premises by virtue of his being the original vendor in said deed to Moore, and the payee and legal holder and owner of said vendor’s lien notes at the time of said conveyance, and that said Konz is the legal holder and owner of said notes under said conveyance recorded in the deed records of Comanche county.
(4) That G. B. Moore by mesne conveyances transferred said property above described to defendant Pitts, who was the owner of the legal title to said property on April 8, 1913, subject to the payment of the vendor’s hen notes heretofore mentioned, which he (Pitts) assumed to pay.
(5) That on said April 8th said Pitts instituted a suit in the district court of Comanche county aycainst said Cox as defendant, alleging substantially as pleaded by defendant Burke-Simmons Company in its answer; that on said April 8th citation was issued in said cause and served on said Cox on April 9th, the regular term of coulrt convening on April 21st, and due return was made of said citation, and on April 19th the said Cox filed his answer and disclaimer in said cause, disclaiming any right, title, or interest in said cause of action, and alleging the sale and transfer of said vendor’s lien notes to Paul Konz, of Martin county, Tex.; that on April 23d judgment was rendered in favor of said Pitts and against said Cox, whom the court found to be the record owner of said three notes, and that said notes were barred by the statute of limitation of four years, and that said Pitts was the owner in fee simple of said land, and that said notes constituted a cloud on plaintiff Pitts’ title, and judgment was rendered for said plaintiff and against said Cox, canceling and holding for naught said vendor’s lien notes, and the lien retained in said notes, quieting the .title of said Pitts, and divesting all the right, title, and interest and lien of said Cox by virtue of being the owner of said three notes and the payee thereof, and the holder of the legal superior title of said land, out of the said Cox, and vesting the same in said Pitts.
(6) That said judgment has never been appealed from, set aside, annulled, or vacated in any manner, but remains a valid and subsisting judgment of said court.
(7) That the property in controversy in'that suit is the same property in controversy in this; and that J. J. Pitts mentioned in that suit is the same as the J. J. Pitts mentioned in this; and that the defendant H. B. Cox mentioned in that suit is the same as the H. B. Cox mentioned in this.
(8) That the transfer of said vendor’s lien notes and superior title from Cox to Konz, heretofore mentioned, was not filed for record in Comanche county until April 18, 1913; and that the said Pitts at the time of the institution of his suit against Cox had no notice of such transfer of said notes from or by Cox, and did not know thereof until such instrument was filed for record as aforesaid, and brought said suit believing said Cox was the owner of said notes.
(9) That, at the time of the filing of said suit by Pitts against Cox, said Pitts had contracted to sell the lot in controversy to the Burke-Simmons Company, if the cloud could be removed from his said title; and that after the rendition of said judgment, to wit, on June 23, 1913, in order to settle an indebtedness owing by said Pitts to the said Burke-Simmons Company, the said Pitts, joined by his wife, by deed of that date, duly acknowledged, conveyed the property in controversy to said Burke-Simmons Company, which went into possession of the same under said deed and has since continued therein.
(10) That Paul Konz was not a party to the suit between Pitts and Cox, and was not served with process therein, and did not appear in said cause, either in person or by attorney, and that the only notice that said Konz had of said suit was a letter written by H. B. Cox to Paul Konz subsequent to the service of citation therein on H. B. Cox and prior to the filing- of said instrument for record on April 18, 1913, notifying said Konz of the institution of said suit.
Therefore the court concluded, as a matter of law, that the defendant (Burke-Simmons Company) could not be an innocent purchaser of the property in controversy for the reason-
fa) That it did not pay value in the sense that term is known in the law in connection with the term “innocent purchaser,” having credited the purchase price in the deal with Pitts on his indebtedness to it then existing.
(b) That defendant knew from the record when the deal was made with Pitts that these notes were outstanding, and it knew and Pitts knew on April -18th, when the transfer of the notes from Cox to Konz was recorded, five days before the judgment was rendered in Pitts’ favor, that Cox did not own the notes in question, b-uit that plaintiff did, and that both Pitts and defendant knew from the record and from Cox’s pleadings in the case that he did not own the notes at the time of judgment, but that Konz did.
(c) That Konz; not having been made a party to the case of Pitts v. Cox, is in no way bound by the judgment rendered therein, and that as a matter of law said judgment as to him was a nullity; and that, therefore, the only title defendant (Burke-Simmons Company) obtained from Pitts was subsequent (subject) to the notes of plaintiff which Pitts had assumed to pay in his deed, and, defendant not having elected to pay off these notes, plaintiff is entitled to recover the land in this suit.

We atlopt the court’s findings of fact as our ownj. Appellant makes no objections to the findings of fact by the trial court, but says thslt the same require a ju Ignient in its favor, a/nd that the failure of the plaintiff to file for ¡record his transfer of the notes from Cox prk'or to the institution of' the suit by Pitts ygainst Cox, and the fact as found by the ecMrt that Pitts at the time of the insti-tuí iorg'of his suit against Cox had no knowledge of Cox’s having transferred said notes and lien, constituted plaintiff a purchaser pendente lite, and that, therefore, he is bound by the judgment rendered in the Pitts v. Cox Case, and that said judgment is res adjudi-cata of all questions therein involved and the question of title to the land involved in this suit.

We do not think that plaintiff was a purchaser of said notes pendente lite, he having purchased the same long prior to the institution of the suit of Pitts v. Cox, and the plaintiff in said suit having notice, at least five days before the rendition of the judgment therein, that Cox was not the owner of said notes or the superior title retained, but that Konz was the owner thereof.

Even if the holding in the case of Bryson & Hartgrove v. Boyce, 41 Tex. Civ. App. 415, 92 S. W. 820, cited by appellant, and which, upon the pertinent point, is to the effect that “where plaintiff, in a suit involving the title to certain land contracted to be conveyed by the defendant in such action to another by an unrecorded contract, had no notice thereof at the time suit was brought, the purchaser under such contract would be regarded as a purchaser pendente lite,” be conceded to be expressive of the common-law doctrine of lis pendens, and perhaps applicable to an unrecorded executory contract to convey land, we think that the question presented to us in the instant case is answered by statutory provision..

In 1905 the Legislature assumed to prescribe what steps should be taken by one seeking to bring into operation the protection of lis pendens, and provided that:

“During the pendency of any suit or action, legal or equitable, involving the title to real estate, or seeking to establish any legal or equitable estate, interest or right, present or future, vested or contingent, therein, or to enforce any lien, charge or encumbrance against the same, any party plaintiff, as also any party defendant, seeking affirmative relief therein, may file with the county clerk of each county, where such real estate, or any part thereof, is situated, a notice of the pendency of such suit, to be signed by the party filing the same, or his agent or attorney, setting forth the number and style of the cause, the court in which pending, the names of the party thereto, the kind of suit, and a description of the land affected.” (Vernon’s Sayles’ Tex. Civ. Stat. art. 6837).

Article 6838 directs how such “lis pendens record” shall be kept by the county clerk. Article 6839 is as follows:

“The pendency of such suit or action shall not prevent effective transfers or encumbrances to a third party for a valuable consideration, and without other notice, 'actual or constructive, by a party to the suit of any such real estate as against a subsequent decree for the adverse party, unless such notice shall have been properly filed under the name of the party attempting to transfer or encumber in the county or counties, in which said land is situated.”

The Legislature having assumed to legislate upon the question of lis pendens, and to prescribe steps to be taken and rules to be observed, in order that a litigant, in a suit involving title to land, may invoke its protecting segis, so far as the statutory regulation extends, in our opinion it supersedes and limits the common-law rules theretofore prevailing with reference thereto. Therefore we think that, in order for the question of lis pendens to become an issue in this case and before this court, it would have to affirmatively appear that, in the suit of Pitts v. Cox, the notice of lis pendens was filed prior to the registration of the transfer of the vendor’s lien notes from Cox to Konz. No presumption will be indulged in favor of the doctrine of lis pendens, and hence a person claiming the benefit of the rule has the burden of clearly bringing his case within the rule. Cyc. vol. 25, 1486, and authorities cited.

There is nothing in the court’s findings of fact, or even in the pleadings of the defendants, to suggest that the statutory requirements had been complied with by Pitts in that suit.

Finding no error, the trial court’s judgment is affirmed.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    JOY v. CITIZENS’ LIFE INS. CO. et al.
    (No. 7352.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.
    Rehearing Denied July 3, 1915.)
    1. Venue <&wkey;22 — Several Parties — Statute.
    Under Rev. St. 1911, art. 1830, cl. 4, providing that where the defendants reside in different counties, suit may be brought in the county of the residence of any one of them, an interpleader by an insurance company to determine the right to a fund due on a policy, as between the widow of the insured, residing in D. county, and a creditor residing in K. county, was properly brought in K. county; and the fact that the widow was subsequently appointed administratrix in D. county did not give her the right to have the case transferred to D. county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. i&wkey;>22.]
    2. Executors and Administrators <&wkey;436— Suit against Administratrix — Venue — “Money Demand against the Estate.”
    Under Rev. St. 1911, art. 1830, § 6, providing that suit against an administrator to establish a money demand against the estate must be brought in the county in which such estate is administered, the claim of a creditor of the insured, asserted against the widow and admin-istratrix of the insured, in an amount in excess of the fund that the interpleading insurer had paid into court, was not a “money demand against the estate,” since if it was established the policy was never payable to the administra-trix, and the fund due was not property of the estate, so that the widow and administratrix was not entitled to have the cause transferred from the county of the creditor’s residence to her own county.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1726^-1728; Dec. Dig. <®=»436.)
    3. Appeal and Error &wkey;>74-2 — Assignments op Error — Sufficiency.
    An assignment of error, in sustaining the plea of privilege filed in the cause and transferring it to the district court of D. county after the district court of K. county had acquired jurisdiction of the cause and of the persons of the defendants, with the proposition that Rev. St. 1911, art. 1830, § 6, providing that suit against an administrator to establish a money demand against the estate must be brought in the county in which such estate is administered, does not apply where such issue is only incidental to the main issue, was not too general for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3006; Dec. Dig. c&wkey;>742.]
    4. Venue &wkey;?77 — Change op Venue — Waiver — Submission to Jurisdiction.
    A defendant by filing in the district court of K. county a motion to quash the citation and a plea in abatement, in effect a plea of nonjoin-der, was not thereby deprived of any privilege he may have had of being sued in D. county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 59, 134, 138; Dec. Dig. &wkey;77.]
    Appeal from District Court, Kaufman. County; F. L. Hawkins, Judge.
    Interpleader by the Citizens’ Life Insurance Company against Martin A. Joy and another. Cause transferred to Dallas County for trial, and defendant Joy appeals.
    Reversed and remanded.
    Robt. L. Warren and Bond & Bond, all of Terrell, for appellant. W. I-I. Clark and Jno. 5. Fannin, both of Dallas, Bumpass & Crum-baugh, of Terrell, and Solon Goode, of Dallas, for appellees.
   TALBOT, J.

The appellee Citizens’ Life Insurance Company of Louisville, Ky., instituted this suit in the district court of Kaufman county, Tex., on the 8th day of May, 1914, against appellant, M. A. Joy, a resident of said county, and Mrs. John Williams, the widow of John Williams, deceased, a. resident of Dallas county, Tex. The petition alleged that on the 12th day of March, 1907, it insured the life of the said John Williams for the sum of $5,000; that said Williams died on the 6th day of February, 1914; that there was due and owing on said policy the sum of $4,153, being the full amount' of said policy, less the amount of a loan made to said John Williams on said policy; that the said John Williams left surviving him his widow, the said “Mrs. John Williams”; that by the terms of said policy “the proceeds thereof, upon the death of the insured, were made payable to Martin A. Joy, creditor, as his interest may appear, the balance, if any, to his estate [meaning the estate of the said John Williams]”; that both said Martin A. Joy and the said Mrs. John Williams claimed and had demanded of it the entire amount due on said policy; that both were threatening to sue and would sue it to recover the proceeds due upon said policy; that it did not know to whom said money was due; and that it was a matter of doubt to which of said mentioned defendants said money was due. The petition further averred that the plaintiff, insurance company, had no interest in said fund, save and except that same be paid to the person or persons legally entitled thereto, and to save itself from beii£ compelled to pay the same twice, and from being harassed by a multiplicity of suits J that plaintiff tenders into the registry of the court said sum of $4,153, the amount due oh said policy, and prayed that both of said defendants “be required to interplead between themselves and settle and adjust their demands as between themselves, to the end that the plaintiff may pay over said sum of money deposited in court to whomsoever the court may decree the same,” and further prayed that it be discharged and allowed its cost, together with the sum of $250 attorney’s fees, and for general relief. On August 6, 1914, the plaintiff insurance company filed an amended petition, alleging that since the .institution of the suit the defendant Mrs. John Williams had been appointed administratrix of the estate of her deceased husband, John Williams, by the probate or county court of Dallas county, Tex., and made her a party defendant to the suit as such administratrix. This amended petition contained, in substance, the same allegations as the original petition, with the additional charge that Mrs. John Williams claimed the proceeds of the insurance policy alleged to have been issued on the life of John Williams, deceased, as administratrix of her said husband’s estate, as well as individually. The defendant M. A. Joy answered, admitting, the facts alleged in plaintiff’s petition, except he denied that the plaintiff made the loan charged to have been made to John Williams, and alleged that if any sum was loaned thereon, it was loaned to him as the owner and holder of the insurance policy, and denied that plaintiff was entitled to said $250 attorney’s fee, or any part thereof, and denied that Mrs. John Williams was entitled to any part of, or interested in, said policy of insurance, either as the administratrix or individually, and alleged that this fact was well known to the. Citizens’ Eife Insurance Company as well as to her. He alleged that John Williams, “the insured, was then (at the time of his death) and is now indebted to this defendant (M. A. Joy) in the sum of $25,824.40, evidenced by a contract executed by him and payable to defendant, together with the amount of the annual premiums on said policy of insurance,” none of which had been paid. He alleged:

“That on account of said indebtedness due this defendant by the said John Williams, he is a creditor of said John Williams in an amount in excess of the said insurance, and is entitled to the proceeds thereof.”

He further alleged that he made demand on the Citizens’ Life Insurance Company for the amount due on the policy more than 30 days prior to the institution of this suit, that payment thereof was refused, and that by its refusal to pay him the amount due on said policy the plaintiff became obligated and bound to pay him, in addition to the amount due on said policy, 12 per cent, damages on said amount, together with reasonable attorney’s fees,. to wit, the sum of $1,000, as provided for by statute, and prayed for judgment against the plaintiff in accordance with his answer. The defendant, Mrs. John Williams, filed a motion to quash the citation served upon her, alleging, among other things, that her proper name was Cynthia A. Williams, and not “John” Williams, and that letters of administration had been granted and issued to her in her name of Cynthia A. Williams. This motion was sustained. On September 8, 1914, the defendant Mrs. Cynthia A. Williams, as admin-istratrix of the estate of John Williams, deceased, filed a plea of privilege to be sued in Dallas county, Tex. She alleged that she resided in Dallas county, Tex.; that the estate of John Williams, who died February 6, 1914, was being administered in said Dallas county, Tex.; that she, Mrs. Cynthia A. Williams, was duly appointed and qualified as the ad-ministratrix of the estate of John Williams, deceased, on the 28th day of July, 1914, and, as authorized, directed, and required to do, she took charge of the property of said estate as such administratrix and has ever since been administering said estate, as provided for by law, and so notified the plaintiff, the Citizens’ Life Insurance Company, on July 29,1914, and demanded payment of said company of said insurance money to her as such administratrix, but it failed and refused to pay same to her, or any part thereof; that on the same day she notified the defendant M. A. Joy of her appointment and qualification as said administratrix, and requested him to advise her of any indebtedness or claim he had against the said John Williams at the time of his death, but that he had failed and refused to reply thereto; that, as is apparent from the pleadings in this case, the suit is against her as administratrix of the estate of said John Williams, deceased, to establish a money demand against said estate in favor of the defendant M. A. Joy, and to apply to the payment thereof the sum of $4,153, which amount the plaintiff insurance company admits it owes upon its policy of $5,000, insuring the life of the said John Williams, and that until said money demand be judicially established, the defendant Joy has no claim whatsoever to said $4,153, or any part thereof; that as provided by section 6, art. 1194, of the Revised Statutes of Texas, this suit against her as administratrix of the estate of John Williams, deceased, involving the establishment of a money demand against said estate, must be and should have been brought in the county in which said estate is being administered, namely, in Dallas county, Tex. On September 8,1914, the district court of Kaufman county heard and sustained said plea of privilege, and duly transferred the case by a proper order to the district court of Dallas county, Tex., for trial. To this action of the court the plaintiff and' defendant M. A. Joy excepted. The defendant Joy filed a motion for a rehearing, which being overruled, he perfected an appeal to this court.

Appellant’s first assignment of error is as follows:

“The court erred in sustaining the plea of privilege filed in this cause by Mrs. Cynthia A. Williams, temporary administratrix of the estate of John Williams, deceased, and in transferring the cause to the district court of Dallas county, Tex., because the district court of Kaufman county had acquired jurisdiction of this cause and the persons of defendants.”

The propositions advanced are, in substance: First, that where there are two or more defendants residing in different counties, the suit may be brought in the county of the residence of either defendant; (2) that where the court has once obtained jurisdiction of a cause of-action, the appointment of an administrator during the pendency of the suit does not deprive that court of its jurisdiction ; (3) that where a party voluntarily submits herself to the jurisdiction of the court, filing plea in abatement, motion to quash citation and plea of privilege, she cannot complain of the venue of the suit; and (4) that section 6, art. 1830, of the Revised Statutes of 1911, providing that suit against an administrator to establish a money demand against the estate he represents, must be brought in the county in which such estate is administered, “does not apply where such issue is only incidental and concomitant to the main issue.” *

We think the assignment should be sustained. The object of the suit was not, in the sense contemplated-by the statute invoked by appellee Mrs. Williams, in support of her plea of privilege to be sued as administratrix of the estate of John Williams, deceased, in Dallas county, one to establish a money demand against said estate. At the time of its institution no administration was pending on the estate of John Williams, deceased. The record discloses, as hereinbefore stated, that the suit was instituted May 8, 1914, and that letters of administration were not granted to Mrs. Williams until the latter part of July of that year. She, as the surviving widow of John Williams, deceased, setting up a claim to the proceeds of the insurance policy issued on his life, was made a party to the suit by-the original petition, and at the time appointed administratrix of the estate of her deceased husband, and for some time prior thereto the district court of Kaufman county had acquired jurisdiction of her person. The fact that she was made a party to the suit in the name of Mrs. John Williams, instead of Oynthia A. Williams, was and is of no consequence. It appears from the pleading, and is an undisputed fact, that Mrs. John Williams and Mrs. Oynthia A. Williams is one and the same person. The purpose of the suit was to have the conflicting claims asserted by her and the defendant Joy to the proceeds of the insurance policy adjudicated and the party legally entitled thereto determined by a judgment of the court, so that appellant would know to whom to pay the money due on the policy, and save itself from a multiplicity Of suits and the possibility of being compelled to pay the same twice. The defendant Joy at the time of the institution of the suit resided in Kaufman county. That fact gave- to appellant the right to institute and maintain the suit in that county, notwithstanding the defendant Mrs. Williams resided in Dallas county, and, the nature and purpose of the suit being, as above stated, the subsequent appointment of Mrs. Williams administratrix of the estate of her deceased husband, John Williams, did not confer upon her the right or privilege to have the suit transferred to and prosecuted in Dallas county. It is essential to defendant Joy’s right of recovery in this suit that he show himself to be a creditor of John Williams, deceased, and the amount of his demand, but if under the terms of the policy of insurance involved-he was a creditor of John Williams at the date of the latter’s death, then to the extent of that indebtedness, which defendant Joy claims to be largely in excess of the amount due on the policy, the policy never became payable to the ad-ministratrix of the said Williams, and the fund arising from it was not and is not the property of his estate. Andrews, Adm’r, v. Union Central Life Ins. Co., 92 Tex. 584, 50 S. W. 572. The claim of Joy, if established, is not therefore one against the estate of John Williams, deceased, which is required to be paid by his administratrix in due course of administration, and neither the pleadings of the insurance company nor the pleadings of the defendant M. A. Joy make this a suit, within the contemplation of clause 6, -art. 1830, of the statute, to establish a money demand against the estate of the said Williams. This being true, and the defendant Joy being a resident of Kaufman county, the suit, under clause 4 of said article 1830 of the statute, which provides that where the defendants reside in different counties suit may be brought in the county of the residence of any one of them, could be brought and maintained in Kaufman county, and hence the trial court erred in sustaining Mrs. Williams* plea as administratrix and in transferring the case to Dallas county. As in effect stated, the purpose of plaintiff’s suit was to have judicially determined to which one of the claimants the proceeds of the insurance policy belonged, to the end that it might know to whom it could safely pay the same and avoid a multiplicity of suits; and the purpose of the defendant Joy’s appearance in that suit, and the pleadings filed by him was to assert and show that, as the policy was payable to him as his interest might appear, he in fact had an interest therein, and the extent of that interest, and to ask and obtain a judgment therefor against the plaintiff, the insurance company. No judgment establishing such claim as he might show against the estate of John Williams, deceased, was sought or was necessary to his right to collect the fund involved from the insurance company. That in developing his right to a judgment against the insurance company for the amount due on the policy of insurance it became necessary to show that he was a creditor of John Williams, deceased, and the fact that such a judgment might have the effect to incidentally establish his right to the fund as against the estate of the said Williams, does not, in our opinion, alter, the ease. Such was not the primary purpose of the suit, and such á result was, at most, but incidental to that sought to be obtained by the suit.

The contention of appellee to the effect that the assignment under consideration is too general, violates the rules, and should not be considered is not, in our opinion, well taken. The court had, by reason of the residence of the defendant Joy in Kaufman county and service of citation, acquired jurisdiction of the case and of the persons of the defendants, and for the reasons given in this opinion, and in the main urged by appellant, the subsequent appointment of Mrs. Williams as administratrix of the estate of John Williams, deceased, did not give her the right to have the cause transferred, upon plea of privilege to be sued in the county where the administration of said estate was pending to Dallas county. The assignment involves and requires or authorizes a consideration of the propositions and contentions made unden it.

There is no merit in the proposition to the effect that appellee submitted herself to the jurisdiction of the district court of Kaufman county by filing motion to quash citation, plea in abatement, etc. The plea denominated a plea in abatement was simply a plea of nonjoinder of parties, and neither it nor the motion to quash the citation had the effect of depriving her of any privilege she may have had of being sued in Dallas county.

The second and only remaining assignment of error need not be considered. What we have said disposes of the appeal, and requires a reversal of the lower court’s judgment. .

It is therefore ordered that the judgment and order of the district court of Kaufman county, transferring this cause to Dallas county, Tex., be set aside and vacated, and that said cause remain upon the docket of said court to be tried in regular order.

Reversed and remanded.
      «gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    DAVIS et al. v. WATERTOWN NAT. BANK et al.
    (No. 7349.)
    (Court of Civil Appeals of Texas. Dallas.
    June 12, 1915.
    Rehearing Denied July 3, 1915.)
    1. Appeal and Error <@=>671 — Record — Briefs — Statements oe Fact — Rules of Court.
    _ Under rules 40 and 41 for the Courts of Civil Appeals (142 S. W. xiv); providing that, when the rules for the submission of a case have been fully complied with by the appellant, the court may regard the brief as a proper presentation of the case, without an examination of the record, and may found its decision thereon, unless the appellee shall file copies of his brief containing objections to the grounds of error as presented by appellant, etc., and that whatever statement of the appellant in his brief is not contested will be considered as acquiesced in, where the record contained no statement of facts and no evidence, nor any briefs on behalf of appellees, the court could decide the case on the issues presented by appellants’ brief, assuming the appellees’ acquiescence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. <@=> 671.],
    2. Railroads <@=3150 — Indebtedness — Approval of Railroad Commission — Statute —Constitutionality.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, invalidates every evidence of debt operating as a lien upon the property of a railroad company, when unaccompanied by a certificate of the secretary of state showing the approval of the railroad commission of such indebtedness. Const, art. 12, § 6, declares that no corporation shall issue stocks or bonds except for money paid, labor done, or property actually received. In a suit on notes executed by a railroad and negotiated without the certificate of approval required by the act, the plaintiffs contended that the statute was unconstitutional. Meld, that the act was in harmony with the constitutional provision and a supplement to it, rendering it effective, for, while the provision directs that corporations shall not do the prohibited things, it contains no regulations or formalities relating to the issuance of stocks and bonds, which effect notice and protect the prospective stockholder or creditor if the corporation has not observed the constitutional injunction, a matter that the act provides for in the case of railroad corporations.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 461, 462; Dee. Dig. <@=>150.]
    3. Railroads <@=>152 — Indebtedness — Approval of Railroad Commission — Invalidity of Obligation — Notice—Statute.
    Whoever purchases the bond of a railroad company not properly certified by the secretary of state to the effect that the railroad commission has approved its issuance, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, has constructive notice of the invalidity of the obligation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 465, 466; Dec. Dig. <@=>152.]
    4. Railroads <@=>148 — Unapproved Indebtedness — Note—Liability of Accommodation Makers — Statute.
    Where notes issued by a railroad company were invalid because the railroad commission had not approved the indebtedness, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, indorsers were not liable thereon as accommodation makers, since their liability was no greater than that of the road, while as to the latter the notes were void ab initio by the statute.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 460; Dec. Dig. <@=>148.]
    5. Constitutional Law <@=>297 — Due Process — Approval of Railroad Obligation by Commission — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, invalidates every evidence of debt operating as a lien upon the property of a railroad company, when unaccompanied by the certificate of the secretary of state showing the approval of the railroad commission of such indebtedness. Const, art. 1, § 19, provides that no citizen of the state shall be deprived of life, liberty, property, privileges, or immunities, except by due course of the law of the land. Held that, since the Legislature’ has all legislative power not forbidden it by the state Constitution, and since the statute operated on all alike, was impartial, did not subject the individual citizen to any arbitrary exercise of the powers of government, and affected the remedy rather than the right, it did not deny due process of law to the payee of a railroad’s note, unapproved by the railroad commission.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent Dig. §§ 832-834; Dec. Dig. <§=> 297.] ■ '
    6. Railroads <§=>148 — Indebtedness — Statute Requiring Approval op Railroad Commission — Optional Character.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulates the issuance of stocks and bonds by railroads. Article 6719 provides that the railroad commission shall make a report to the secretary of state of the value of the franchises, appurtenances, and property, of each road in the state, which shall be a limitation on the incurrence of indebtedness by railroads under the rules prescribed by the succeeding provisions of the act. Article 6722 provides that should any road desire to issue bonds or other indebtedness, to be secured by lien or other mortgage on its franchises and property, in advance of the completion of the road, it shall first secure the consent of the railroad commission. Article 6727 provides that failure to comply with preceding articles shall wholly invalidate any indebtedness incurred by a road. Held, that the act was not of an optional character, requiring the railroad commission to .first assume control of a railroad, as a condition precedent to the invalidity of a note of such road unapproved by the commission, since the statute placed the regulation and approval of railroad indebtedness exclusively within the control of the commission, with definitely prescribed duties, while any option on the part of the commission was excluded by the article requiring it to value the property of each road in the state, and report the same for the precise purpose of regulating and controlling indebtedness.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 460; Dec. Dig. <@=>148.]
    7. Railroads <@=1 179— Demurrer — Control of Fact Pleaded.
    Where, in an action against a railroad company on notes not approved by the railroad commission, as required by Vernon’s Sayles’ Ann. Civ. Ct. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, a supplemental plea averred that the road was local and suburban, expressly excepted from the control of the railroad commission by article 6731, the issue of fact so raised could not be controlled by demurrer.
    [Ed. Note. — For., other cases, see Railroads, Cent. Dig. §§ 601-604; Dec. Dig. <§=>179.]
    8. Railroads <@=>179 — Indebtedness — Approval op Commission — Statute—Exception op Suburban Line — Burden op Proof.
    In an action against a railroad on notes claimed to be invalid because not approved by the railroad commission, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, the burden of proof is on the plaintiff to show that the railroad commission decided that the road was local and suburban, and so possibly exempt from the operation of the act by article 6731, since the commission has an option to decide whether to assume control over such a railroad after it has decided it is suburban in character.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 601-604; Dec. Dig. <@=>179J
    9.Railroads <@=>148 — Series op Notes — Waiver op Defenses as to One — Effect.
    Where a railroad issued a series of notes invalid for noncompliance with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6717-6732, regulating the issuance of stocks and bonds by railroads, and such road and its directors waived their defenses on one note as to the holder, in consideration that it extend the time of payment, such waiver did not waive the defense of the statute as to the other notes in the hands of other holders.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 460; Dec. Dig. <§=>148.]
    Appeal from District Court, Dallas County; J. O. Roberts, Judge.
    Action by the Watertown National Bank against Glen Rose & Walnut Springs Railway Company and others, in which Sara Ida Davis and others were joined as plaintiffs. Judgment for defendants, and plaintiff Davis and others appeal.
    Reversed and remanded.
    N. J. Wade, of Ft. Worth, for appellants.
   RASBURY, J.

The record in this cause contains no statement of facts, in fact appellants state that no evidence, other than an agreement between certain of the parties which will be hereafter referred to, was introduced. Nor does the record contain briefs on behalf of appellees. Accordingly, we will found our decision of the case upon the issues presented in appellants’ brief and assume appellees’ acquiescence in all statements contained therein, as we are authorized to do by rules 40 .and 41 prescribed for the guidance of this court by the Supreme Court (142 S. W. xiv).

From appellants’ brief it appears that the pleadings in the court below disclosed the' following facts: Appellee Glen Rose & Walnut Springs Railway Company issued a series of four notes, each for $2,500. Three of the notes were acquired by appellants, Sara Ida Davis, Woodford M. Davis, and Dr. Francis M. Johnson, and one was acquired by appellee Watertown National Bank. Payment of the four notes was secured by trust deed and trust agreement, without preference to either note, upon the right of way and other property of the railway company. The notes were all indorsed by J. H. Farr and W. D. Morton. When issued the notes did not in fact represent a present consideration, but were negotiated with appellants and appellee Wa-tertown National Bank before maturity, and for valuable consideration. The notes were in the usual form of negotiable promissory notes and recited that their payment was secured by pledge of all the personal and real property described in the trust deed and should be invalid unless a certificate attached to the notes was signed by the Guaranty State Bank & Trust Company, trustee. The certificate was so signed. The notes were not paid at maturity. Thereupon appellee! Watertown National Bank sued on the note acquired by it, asking appropriate relief against the Glen Rose & Walnut Springs Railway Company, as maker, and Farr and Morton, as indorsers, and joining appellants therein on the ground that they were the owners of the remaining three notes and entitled to participate in the proceeds of the sale of the security. Others were made formal parties to the suit, but it-it not necessary to detail them, nor the disposition made of them by the final judgment. Appellants adopted the pleadings of the Wa-tertown National Bank, and declared, as well, independently upon their notes against the maker and asked also for appropriate relief against the indorsers. Appellees Glen Rose & Walnut Springs Railway Company and Farr and Morton, among other pleadings, demurred to appellants’ plea for affirmative relief on the notes, upon the ground that it appeared that the notes were secured by lien on the property of a proposed railroad, the issuance of which was not shown to have been approved by the state railroad commission failing in which they were, by law, void. In avoidance of the plea so urged appellants, by supplemental plea, averred that the Glen Rose & Walnut Springs Railway Company was a suburban short line of about 10 miles and, by law, exempted from the control and regulation of the railroad commission. The same defenses that were urged against appellants’ notes were also urged by appellees Glen Rose & Walnut Springs Railway Company and Farr and Morton to the note and lien of the appellee Watertown National Bank, but were subsequently withdrawn, as will immediately appear. At trial the district judge sustained the demurrer to appellants’ cause of action and dismissed same. Judgment was rendered for appellee Watertown National Bank against appellees Glen Rose & Walnut Springs Railway Company and Farr and Morton, for the amount due on its note, together with foreclosure of lien upon the securities named in the deed of trust. This judgment was based upon an agreement between said appellees that the defenses on the one side would be withdrawn in consideration that the parties on the other side would extend the time of payment.

The first assignment of error is that the court erred in sustaining appellees’ special exception to appellants’ petition, because those provisions of the statute (chapter 10, arts. 6717-6732, vol. 4, Vernon’s Sayles’ Stats. 1914, popularly known as the stock and bond law), which invalidate every evidence of debt operating as a lien upon the property of railroad companies when unaccompanied by the certificate of the secretary of state showing the approval of the railroad commission of such indebtedness, are unconstitutional, because in conflict with section 19 of the Bill of Rights, declaring that no person shall be deprived of his property without due course of law, and are unconstitutional for the further reason that they are in conflict with article 12, section 6, of the state Constitution, declaring that “no corporation shall issue stocks or bonds except for money paid, labor done, or property actually received,” etc. Discussing the issues in inverse -order, we fail to see any conflict between that portion of the Constitution just quoted and the provisions of chapter 16 of the statutes. It was said in O’Bear-Nester Glass Co. v. Antiexplo Company et al., 101 Tex. 431, 108 S. W. 967, 109 S. W. 931:

That the purpose of the constitutional convention in enacting section 6 of article 12 “was to secure creditors, as well as stockholders, of corporations against the practice, which was too common, of corporations issuing fictitious stock and stock upon an insufficient consideration, whereby the actual capital was much less than the amount represented by the shares issued and sold by the corporation. The terms in which this section of the Constitution is expressed indicate the purpose that the assets of the corporation, should be something substantial and of such a character that they could be subjected to the payment of claims against the corporation as well as to secure the shareholders in their rights in the capital stock.”

The word “bonds,” it will be observed, appears in the provision in the same relation as does “stocks,” discussed in the foregoing case by the Supreme Court. Consequently the purpose of the section as construed by the Supreme Court as applied to stocks is necessarily the same as applied to bonds, that is, that they be not fictitious, but represent something substantial, i. e. “money paid, labor done, or property actually received.” Such being the purpose of the constitutional provision, it occurs to us that the provisions of chapter 16 are not only not in contravention thereof, but in entire harmony therewith, and are an almost necessary supplement to the constitutional provision in order to make it effective. While the constitutional provision directs that corporations, which include railroad corporations, shall not do the things therein prohibited, it contains no regulations or formalities relating to the issuance of stocks and bonds which will put upon notice and protect the prospective stockholder or creditor in ease the corporation has not in fact observed the constitutional injunction. That is precisely what the provisions of chapter 16 do when they direct that stocks and bonds (notes) of railroad corporations not approved by the railroad commission and certified to in that respect by the secretary of state upon the bond shall be void. And whoever purchases the bond of a railroad company not properly certified has constructive notice of its invalidity. The effect of the rule is not dissimilar to the statutory rule with reference to one who purchases a negotiable note after maturity, or of one who purchases before maturity with actual notice. Accordingly no railroad corporation being permitted to issue bonds without observing the provisions of chapter 16, and the bonds acquired by appellants showing upon their face to be the bonds of a railroad company without such certificate, such fact was notice to appellants that they were void, even though acquired before maturity. In connection with what we have just said it is urged by appellants that even though the notes sued on were void and unenforceable as to the Glen Rose & Walnut Springs Railway Company, yet appellees Parr and Morton would be liable thereon as accommodation makers. We conclude not. Their liability was no greater than that of the makers, and is determined by the same rule. Being void ab initio, a subsequent indorsement could not impart vitality to them.

On the issue that the stock and bond law is invalid because in contravention of the guaranty in section 10 of the Bill of Rights that appellants shall not be deprived of their life, liberty, property, etc., except by the due course of the law of the land, appellants do not specify in what particular that guaranty has been denied them. It does not appear to have been denied them at trial, since no complaint is made that the formalities of notice and a hearing were denied by the trial court. Hence we take it that the claim must relate to the enactment of the law itself. Our Legislature, except where restrained by the Constitution of the United States, may exercise all legislative power not forbidden, expressly or by implication, by the provisions of our state Constitution. The enactment of the stock and bond law comes obviously within none of the limitations noted, and since it operates upon all alike, is impartial, and does not subject the individual citizen to arbitrary exercise of the powers of government, and affects the remedy rather than the right, the law in our opinion does not deny appellant the due process of law. March v. State, 44 Tex. 64; Armstrong v. Traylor et al., 87 Tex. 598, 30 S. W. 440; Nash Hardware Co. v. Morris, 105 Tex. 217, 146 S. W. 874.

By the third assignment of error it is urged that the court erred in sustaining the exception noted, for the reason that no evidence was offered by appellees showing that the commission had assumed control of the Glen Rose & Walnut Springs Railway Company, and in such connection it is asserted as a proposition that such control is optional with the commission. We think it quite clear that the railroad commission is without option in such matters, save in the respect hereinafter mentioned. Article 6719, Vernon’s Sayles’ Stats., which is a part of the act creating the railroad commission, makes it the duty of the commission to ascertain the value of the franchises, appurtenances, and property of each railroad in this state and make written report thereof to the secretary of state, the report of the commission to remain in the office of the secretary of state as a public record, and as a limitation upon the issuance of indebtedness by the railroads of the state under the rules prescribed by succeeding provisions of the act. By article 6685, it is provided, among other matters, that the railroad commission is authorized and empowered “to approve liens or mortgages that may be given by such railroad companies and common carriers,” etc. Article 6722 provides that should any such company “desire to issue bonds or other indebtedness, to be secured by lien or other mortgage on its franchises and property, in advance of the completion of the said railroad, it shall make application to and first procure the consent of the railroad commission thereto.” Article 6727 provides that failure to comply with the preceding articles shall wholly invalidate any such indebtedness, etc. It thus appears that the matter in controversy in this suit is placed squarely and exclusively within the control of the railroad commission, with its duties definitely prescribed, and no presumption exists that the commission will exercise any option in the discharge of the powers and duties so conferred, particularly when such option is excluded by the article requiring it to value the property of the roads and report same to the secretary for the precise purpose of regulating and controlling the indebtedness thereof. Rather the presumption arises that they will carefully and consistently preserve all powers expressly or by implication conferred, among which are those enumerated in the articles cited.

At this point, and in connection with what has just been said, we will consider the fourth assignment of error, which complains of the action of the trial judge in sustaining the special exception noted on the ground that appellants alleged in avoidance 'of said exception that the Glen Rose & Walnut Springs Railway Company was a proposed suburban railway about 10 miles in length, and one expressly excepted by law from the control of the railroad commission. This assignment should be sustained. Article 6731 of the act under discussion, in effect, permits the railroad commission to exclude from the operation of the several provisions of the act already quoted local suburban railways constructed for any distance less than 10 miles from the corporate limits of any city or town, etc., and, when so excluded, said article 6731 provides that such suburban railway company shall have the right to issue its bonds, etc., free from the control of the railroad commission and without complying with the other provisions of the act, and when so issued such bonds, etc., shall be valid. This is the exception referred to in the paragraph of this opinion next above. Appellants, by their pleading as stated, averred , that the Glen Rose & Walnut Springs Railway Company was such a suburban road as contemplated by the article quoted, and hence exempt from the control of the commission. The pleading standing as indicated, a question of fact was raised that could not be controlled by the demurrer. We do not, however, construe article 6731 to mean, as contended by appellants, that the railroad commission was without control whatever of the character of road indicated. Rather we construe it to mean that it may decide it will not assume control of such railroad after it has decided that such railroad is of the character claimed, and that, as a consequence, the litigant claiming the exemption would have the duty of showing, not that it was a suburban railway, but that the railroad commission had so decided. Denison & S. Ry. Co. v. Railroad Commission, 95 Tex. 671, 69 S. W. 62.

It is also urged by the fifth and eighth assignments that the effect of the agreement between the appellees, Glen Rose & Walnut' Springs Railway Company, Farr and Morton, and Watertown National Bank, by which the former waived their defenses to the note and confessed judgment therein in consideration of the latter granting an extension of time for payment, was to in like manner waive such defenses to the notes sued upon by appellants. Such, in our opinion, was not the effect of the agreement. Legal remedies or defenses available to litigants are matters that may or may not be asserted, and a failure to exercise such remedy or defense in a given case or an agreement to waive it for reasons sufficient to the one to be affected, would not, clearly, prevent the assertion of such right against another, even in the same transaction.

All other assignments not specifically discussed have been considered carefully, and, because we are of opinion that they show no reversible error, same are overruled.

For the reason indicated the judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views expressed herein.

Reversed and remanded.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes