author: CONNER, O. J.

text:
    SEEDIG v. FIRST NAT. BANK OF CLIFTON et al.
    (No. 7958.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.
    Rehearing Denied May 16, 1914.)
    1. Exemptions (§ 149) — Enforcement — Damages — Interest.
    Where exempt property of a debtor was wrongfully levied upon and sold by a creditor, the debtor was entitled to interest on the value of such property from the date of the conversion, and not merely from the date of a judgment against the creditor.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 179; Dec. Dig. § 149.]
    2. Bankruptcy (§ 400) — Setting Apart and Report of Exempt Property.
    The mere act of a trustee in bankruptcy in setting apart exempt property to a bankrupt as required by Bankr. Act July 1, 1898, c. 541, § 47, par. 11, 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), requiring him to set apart such property and report the items and estimated value thereof to the court, etc., is not an adjudication, but does not become final and conclusive as between a creditor and bankrupt until the cpurt shall have acted thereon.
    [Ed. Note — For other cases, see Bankruptcy, Cent. Dig. §§ 670-675; Dee. Dig. § 400.]
    3. Judgment (§ 949) — Res Judicata — Plea —Admissions—Failure to Deny.
    Though facts set up in a plea of res ad-judicata, not being specially denied, were confessed as provided by Acts 33d Leg. c. 127, yet the confession did not extend beyond the facts alleged so as to 'render the plea good as res ad-judicata, where the facts themselves were not sufficient.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1794-1803; Dec. Dig. § 949.]
    4. Appeal and Error (§ 265) — Reservation of Grounds of Review — Exceptions.
    Under Rev. St. 1911, art. 1990, providing that, where conclusions of fact of the trial judge are separately stated, the court shall, unless they be set aside and a new trial granted, render judgment thereon, where there was no exception to findings of fact, no request for additional findings, the judgment will not be disturbed because the evidence did not support the findings or because the evidence supported an issue not included within the findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1461,1536-1551; Dec. Dig. § 265.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Action by Gustav Seedig against the First National Bank of Clifton and others. Judgment for defendants, and plaintiff appeals.
    Modified and affirmed.
    Edwin W. Hander, of Waco, and J. S. Bounds, of Meridian, for appellant. James M. Robertson, of Meridian, for appellees.

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

   CONNER, O. J.

This suit was instituted by the appellant against the First National Bank of Clifton and against J. W. Butler, its president, and G. F. Boone and W. H. Randell, the sheriff of Bosque county, for damages because of an alleged wrongful levy and sale under execution of certain personal property owned by the plaintiff and claimed by him to be exempt from execution. It was alleged that the First National Bank was in the process of liquidation, and that the defendants Butler and Boone were its liquidating agents and they were sued as such, save that it was specially charged that J. W. Butler advised and directed the levy with full knowledge at the time that the property levied upon was exempt, and the plaintiff claimed both actual and exemplary damages against the bank and Butler.

The defendants, who are now appellees, answered on September 17, 1913, after our new act on the subject of pleading went into effect. They filed a general denial, and specially denied that the property levied upon was exempt, and specially alleged that they did not levy upon and sell the property “maliciously and without probable cause.”

To this the appellant answered by way of supplemental petition, alleging, among other things, that on the 2d day of December, 1912, the plaintiff on his own petition had been, by the District Court of the United States for the Western District of Texas at Waco, adjudged a bankrupt, the judgment described in the plaintiff’s petition, and by virtue of which the execution in question had beeh levied, being .listed as one of the debts from which the plaintiff desired a discharge; that the bank had been duly notified of the adjudication, and summoned to prove up its judgment against the plaintiff’s estate; that on the 3d day of January, 1913, “Ed Russell, the duly appointed and qualified trustee of said bankrupt estate, set aside all of said exempt property described in plaintiff’s said petition as being Ms exempt property and not subject to be administered as a part of tbe bankrupt’s estate, wherefore [as tbe prayer is] tbe plaintiff sa'ys that the fact that said property is bis exempt property, and not subject to sale under execution to satisfy said judgment, is, as between tbe plaintiff and said bank, res adjudicata, and not subject to dispute between them.”

The case was tried before tbe court without a jury on September 17, 1913, and tbe court found that, of the property levied upon, property of tbe value of $704.60 was, in fact, exempt, as alleged by tbe plaintiff, and for this amount judgment was rendered against all defendants (no personal judgment being rendered against defendant Butler). Tbe remaining part of tbe property was found to be nonexempt and subject to tbe execution in question. Tbe court further found and adjudged in favor of tbe defendant bank against tbe plaintiff, Gustav Seedig, for tbe sum of $315.60, the balance due upon a note and mortgage that tbe defendants had set up by way of cross-action in their answer. Tbe court filed formal conclusions of fact upon which he based his judgment.

We are of the opinion that appellant’s first assignment is well taken. It appears that in rendering judgment the court allowed plaintiff interest upon the value of the exempt property found to have been converted from the date of the judgment only; whereas we think he was entitled to interest thereon from tbe date of tbe conversion of tbe property, to wit, from November 5, 1912, making a difference of $35.23 to which appellant is entitled. See Thompson v. Griffin, 69 Tex. 140, 6 S. W. 410; Masterson v. Goodlett, 46 Tex. 402; Hillebrant v. Brewer, 6 Tex. 51, 55 Am. Dec. 757. The error here noted, however, will not require a reversal of the judgment, but may be corrected ast>we will hereinafter attempt to do by its reformation.

In the second assignment appellant urges “that tbe court erred in not finding as against the First National Bank of Clifton that all the property was exempt for the reason that the nonexempt character of the property had become res adjudicata, as had been specially pleaded.” Whatever of merit there might otherwise be in this contention, we think the present record fails to sustain it. In prescribing the duties of a trustee in cases of bankruptcy, the federal statutes, among other things, provides that he shall “set apart the bankrupt’s exemptions and report the items and estimated value thereof to the court as soon as practicable after the appointment.” See chapter 5, § 47, par. 11, of the Bankrupt Act (1 Fed. Stat. Anno. p. 656). It seems evident that the mere act of the trustee in setting apart exempt property has not been given the force of an adjudication. He is required to report the items of exempt property, with the estimated values thereof, to the court. This report may be contested, and, as between the creditor and the bankrupt, does not become final and conclusive until the court shall have acted thereon. It will be noticed from tbe quotation from tbe appellant’s plea that we have here-inbefore made that nothing beyond the act of the trustee in setting apart appellant’s exempt property is alleged. It is not charged that this report was finally approved by the federal District Court at Waco, nor is any .evidence that tMs took place pointed out, so that we cannot say that the record sustains the plea. It is further insisted, however, that tbe allegations relating to the plea of res adjudicata were not specifically denied, and that therefore under our new act relating to pleading, the plea must be taken as confessed in appellant’s favor. Pretermitting for tbe moment a discussion of tbe new act, it will be sufficient to say, in answer to this proposition, that tbe confession cannot be extended beyond the allegations of the plea, and, tbe plea itself having set up only the act of the trustee in setting apart appellant’s exempt property, the confession fails, in legal effect, to support the assignment.

Several other assignments may be disposed of, we think, by the same general proposition. The assignments are: First, that “the court erred in not rendering judgment in favor of the plaintiff against the defendants and X W. Butler for actual damages for the wrongful conversion of plaintiff’s exempt property,” for the reason that said defendants bad not specially denied, as required by the new act relating to pleading (see General Laws, 1913, p. 257), plaintiff’s allegations to tbe effect that Butler, as president of tbe First National Bank, directed tbe wrongful levy and sale of the property knowing that the property was exempt, and not subject to levy; second, that “the court erred in not rendering judgment in favor of the plaintiff against the defendant J. W. Butler for actual damages for the alleged wrongful conversion of plaintiff’s exempt property, for the reason that the uncontroverted and uncontradicted evidence was that the said Butler knew, or, if he had used proper care and diligence, as he in the premises was bound to do, could have known, at the time he directed said levy and sale of said property that the plaintiff’s exempt property was among tbe property levied upon”; third, that “the court erred in not rendering judgment for exemplary damages in favor of the plaintiff against the First National Bank of Clifton and the defendant X W. Butler,” for the same reasons.

As before stated, the trial court filed formal conclusions of fact and of law. There is no finding that the appellee Butler directed tbe levy, or that be knew that the property, or any part thereof, levied upon was exempt, and it was further specially found that “there are no facts shown by the evidence upon which the court could find exemplary damages in this canse, and none are, therefore, found.” The record discloses no exception or objection made by the appellant to any such finding or conclusion. Nor does the record show that appellant requested any finding upon an issue not determined. We cannot, therefore, disturb the “judgment” of the court merely because the state of the evidence is such as that one or more of the court’s findings of fact is unsupported, or because of evidence supporting an issue not included within the court’s findings of fact. Our statute (Rev. St. 1911, art. 1990) reads:

“In all cases where a special verdict of the jury is rendered, or the conclusions of fact found by the judge are separately stated, the court shall, unless the same be set aside and a new trial granted, render judgment thereon.”

In Landers v. McCutchan, 161 S. W. 960, where the question now under consideration was involved, after citing the article of the statute just quoted, we said:

“As already stated, in this ease we have the trial court’s conclusions of facts separately stated from his conclusions of law; and, under the statute quoted, it is our duty to render judgment upon the facts so found if in law they are sufficient to authorize the judgment, unless, as stated by the statute, they be set aside. The transcript presents no exception below in behalf of Everett Landers to any conclusion of fact filed by the court, nor does it appear that appellant made a request for any additional finding, nor is any one or more of such findings directly attacked before us for want of evidence sufficient to support it; and, the facts found as a whole being such as, in our opinion, are amply sufficient to sustain the judgment, it follows that the judgment should be affirmed by force of the terms of the article of the statute quoted.”

We think that under the circumstances and authorities stated the assignments referred to must be disregarded and overruled.

The remaining assignment is that “the court erred in rendering judgment against the plaintiff in favor of the First National Bank of Clifton for the sum of $315, because” (in substance) there was no specific denial of plaintiff’s allegation that sufficient property not exempt was covered by the chattel mortgage set up in the cross-plea- to satisfy it, and hence that the proceeds of the nonexempt property should have been applied in liquidation of the mortgage instead of as a credit on the judgment upon which the execution issued. The disposition of the preceding assignments determines in a great measure the disposition of the one last noted. Nothing in the court’s findings supports the contentions last made, and the findings as a whole being sufficient, in our opinion, to sustain the judgment of the court.

All assignments, save the first, are therefore overruled, and the trial court’s findings of fact and law adopted. In correction of the error urged under the first assignment, however, it will be ordered that the judgment be so reformed as to allow appellant interest on the value of his exempt property sold as adjudged by the court from the date of its conversion on November 5, 1912, and, as so reformed, the judgment will be affirmed, with costs of this appeal taxed against the appel-lees.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BLAKELY v. KANAMAN et al.
    (No. 6547.)
    (Court of Civil Appeals of Texas. Galveston.
    May 12, 1914.
    Rehearing Denied June 11, 1914.)
    1. Husband and Wife (§§ 8, 79) — Married Women — Powees—Separate Property.
    At common law a married 'woman possessed no contractual capacity whatever, but her separate estate at the time of her marriage became absolutely the property of her husband for the purposes of control .and sale.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 19-29, 317-323, 329; Dec. Dig. §§ 8, 79.]
    2. Husband and Wipe (§ 187) — Married Women — Separate Property — Transfer-Executory Contract.
    Under Paschal’s Dig. art. 1008, authorizing a married woman to “convey” her separate property only when she and her husband joined in the conveyance, the instrument to take effect on its being acknowledged by the wife privily and apart from her husband, she had no power to execute an executory contract for the sale of her separate real property while married.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 722, 723; Dec. Dig. § 187.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Bassett Blakely against Clara Kanaman and husband. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    B. F. Louis, of Houston, for appellant. T. H. Stone, of Houston, for appellees.

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

   McMEANS, J.

Bassett Blakely, appellant, brought this action against Clara Kanaman, a femme covert, and her husband, W. I. Kan-aman, to enforce specific performance of a contract of sale of real estate, the separate property of the wife. Defendants urgéd general and special demurrers to plaintiff’s petition which were sustained by the court, and thereupon, the plaintiff declining to amend, his suit was dismissed, and, from the judgment sustaining the demurrers and dismissing his suit, plaintiff has appealed.

Plaintiff in his petition alleged the terms of a contract of agency and sale which was entered into by and between Clara Kanaman and her husband, W. I. Kanaman, and William H. Olschewske, a copy of which is attached to the'petition as an -exhibit, and which is as follows:

“The State of Texas, County of Harris.
“This contract of agency, and sale, made and entered into by and between Mrs. Clara Kana-man, and her husband, W. I. Kanaman of Dallas county, Texas, parties of the first part, and William H. Olschewske, party of the second part, witnesseth:
“First. That in consideration of the sum of ten dollars cash in hand paid, to the parties of the first part by the party of the second part, and the further consideration of the service rendered and to be rendered by the party of the second part, in procuring a purchaser or pur•chasers, and effecting a sale and exchange of the hereinafter described property upon the terms hereinafter set out, parties of the first part obligate and bind themselves to make due conveyance of the property hereinafter described in accordance with such terms, and agree to pay to the said party of the second part 2 per cent, in -cash, upon the value of the property of the said parties of the first part, as evidenced by such exchanges, which valuation is here now evidenced to be $155,000, which said percentage shall be as commission for the service of said party of the second part.
“Second. The party of the second part shall have 20 days from the date hereof in which to produce the purchasers or purchaser for the sale and exchange of said property upon the terms as hereinafter set forth.
“Third. The property of the parties of the first part hereinbefore referred to, which said parties of the first part agree to exchange, sell and convey by a general warranty deed, and which, during the period aforesaid, the party of the second part is given the exclusive right to sell, is described as- follows: Situated in the county of Harris, state of Texas, city of Houston, S. S. B. B., and being lots 1, 2, 12, and adjoining % of lot 3, in block 139, situated on the corner of Main street and Lamar avenue.
“Fourth. The party of the second part shall and agrees to procure a purchaser or purchasers who shall be able, willing and ready to purchase the hereinabove described property, upon the following considerations and terms, to wit: Such purchaser or purchasers as part consideration shall agree and be able to exchange by general warranty deed, convey good title, the property located at the corner of McKinney avenue and Travis street, being the north 75 feet by 50 feet off of each of lots 9 and 10, out of the block No. 140, S. S. B. B., city of Houston, Harris county, Texas, and forming a tract 75 feet on Travis street by 100 feet on McKinney avenue, in addition to the exchange and conveyance of said last-named tract, such purchaser or purchasers shall be able, willing and ready to pay the additional sum of $90,000, which said additional sum may, at the option of such purchaser or purchasers, be payable as follows: By the assumption of a certain promissory note under date of April 17,1909, and payable to the order of the Rice Institute for $25,000, bearing interest at the rate of 6 per cent interest payable semiannually, and the remaining balance of $G5,-000 payable in cash or the assumption of the Rice Institute note, and cash payment of $25,-000, and the remaining sum of $40,000 in one installment, evidenced by vendor’s lien note, executed by said purchaser or purchasers, payable in 3 years from date, bearing interest at 6 per cent, per annum, payable semiannually, and which said note shall provide and contain the privilege to pay any and all of said note at the option of the makers, upon any interest paying period, it being provided as aforesaid that such purchaser or purchasers shall have the option to accept either of the terms above set forth, for payment of the amount in addition to the exchange of the property as set forth above. The said purchaser or purchasers, when procured as aforesaid, shall deposit the sum of $5,000 as earnest money with the party of the second part, in cash or in certified checks, conditioned that if the abstract of title to be furnished by the parties of the first part shall show good title in them, or either of them, then unless said purchaser or purchasers agree to accept said title and close the sale upon the terms herein set out, then said earnest money shall be forfeited to the parties of the first part and the party of the second part equally, as liquidated damages, otherwise said earnest money so deposited shall be applied as part of the payment upon the purchase price of said property.
“Fifth. The parties of the first part agree to furnish to such purchaser or purchasers within 30 days from the date hereof a complete abstract of title to the property above described, which, as provided herein, they shall convey, and the said purchaser or purchasers shall also agree to furnish a complete abstract of title to the property described above which they are to convey in exchange in part payment within the same time and the said parties of the first part and the said purchaser or purchasers shall have 30 days from the delivery of such abstracts within which to examine the same, and if such abstracts show good title in the parties of the first part as to the land to be conveyed by them, and in said purchaser or purchasers as to the tract to be conveyed by them, then the sale must be consummated within 30 ‘days from the expiration of the time within which such abstracts shall be examined, and found to show good title, and, in the event the title to the respective parties to either tract shall be found to be defective, the respective parties who are to convey said land obligate themselves to perfect the title to their respective tracts, within a reasonable time thereafter.
“Sixth. The parties of the first part shall pay the pro rata portion of the taxes for the year 1912 up to the time the deal is closed, in addition to all back taxes, and the said purchaser or purchasers shall likewise pay the pro rata portion of the taxes for the year 1912, upon the property to be conveyed by them, as well as all back taxes.
“This contract is executed in duplicate, this the 9th day of April, 1912.”

This contract was signed and duly acknowledged by the parties; the said Clara Kana-man’s acknowledgment being taken in the manner and form prescribed by law for acknowledgment of deeds by married women.

Plaintiff further alleged that, in pursuance of the terms of the contract above copied, the William H. Olschewske, therein referred to, executed a contract of sale with plaintiff, Bassett Blakely, which contract is specifically alleged in all its terms and is attached to the petition as an exhibit, and is as follows:

“State of Texas, County of Harris.
“This contract of bargain, sale and exchange, made and entered into this the 20th day of April, 1912, by and between Mrs. Clara Kana-man and her husband, W. I. Kanaman, of Dallas county, Texas, parties of the first part, acting by and through their duly authorized agent, William H. Olschewske, of Harris county, Texas, and Bassett Blakely, party of the second part, witnesseth:
“One. The party of the second part has this day delivered to said William H. Olschewske, as agent for the parties of the first part, certified check in the sum of five thousand dollars ($5,000) payable to said William H. Olschew-ske as earnest money to bind the sale to said party of the second part, of the hereinafter described property, upon the terms hereinafter set out, and in accordance with the contract of agency and sale, of date April 19, 1912, executed by and between W. I. Kanaman and Clara Kanaman on the one part and William H. Olschewske on the other part, as is hereinafter shown.
“Two. The said parties of the first part have this day bargained and sold, and by these presents do hereby bargain and sell and obligate themselves to convey to the said party of the second part, all and singular, the following described property, situated in the county of Harris, state of Texas, city of Houston, south side of Buffalo bayou, and being lots numbers one (1), two (2), twelve (12), and the adjoining % (one-half) of lot 'number three (3), in block number one hundred and thirty-nine (139) situated on the corner of Main street and Lamar avenue.
“Three. The consideration paid and to be paid to the parties of the first part, by said party of the second part, for the property above described, is as follows: The conveyance by general warranty deed, conveying good title from the party of the second part, to the parties of the first part, of that certain property located at the corner of McKinney avenue and Travis street, and being the north seventy-five (75) feet by fifty (50) feet off of each of lots numbers nine (9) and ten (.10), out of block one hundred and forty (140) south side of Buffalo bayou, city of Houston, Harris county, Tesas, and forming a tract of seventy-five feet on Travis street by one hundred (100) feet on McKinney avenue; and in addition thereto the payment of the sum of ninety thousand dollars ($90,000), payable as follows: Party of the second part shall assume that certain promissory note under date of April 17, 1909, and payable to the order of the Rice Institute, for twenty-five thousand ($25,000) dollars, bearing interest at the rate.of six (6) per cent, interest, payable semiannually, and the payment in cash of twenty-five thousand ($25,000) dollars, of which the certified check herein receipted for shall be taken as a part, and the execution of one vendor’s lien note, in the sum of forty thousand ($40,000) dollars, executed by the party of the second part to the parties of the first part, payable in three years from date thereof, bearing interest at six (6) per cent. per_ annum, interest payable semiannually, and which said note shall provide and contain the privilege to pay all or any part of said note, and the option of the maker upon any interest paying period.
“Pour. The parties of the first part agree to furnish the party of the second part, within thirty (30) days from the date hereof, a complete abstract of title to the property first hereinabove described, which, as provided herein, they agree to convey to the party of the second part, and the said party of the second part agrees to furnish a complete abstract of title to the property last described above, which, as provided herein, he is to convey in exchange in part payment, within like time, to wit, thirty (30) days from the date hereof; and the parties of the first part and the party of the second part shall have thirty (30) days from the delivery of such abstracts herein within which to examine same; and if such abstracts show good title in the respective parties who are to convey said different tracts as stated, then the sale must be consummated within thirty (30) days from the expiration of the time within which such abstracts shall be examined and found to show good title; and in the event the title of the respective parties to the tract to be conveyed by such party or parties shall be found to be defective, the respective parties who are to convey said land obligate themselves to perfect the title to their respective tracts within a reasonable time thereafter.
“Five. It is agreed that if the abstracts of title furnished by the parties of the first part to the property to be conveyed by them, as hereinabove set out, shall show good title in them, or either of them, then unless said party of the second part accepts said title, and closes the sale, in accordance with the terms herein set out, then the said earnest money herein receipted for shall be forfeited to the parties of the first part, and the said AVilliam H. Olschewske, their agent, equally, as liquidated damages, thereupon the parties of the first part to be released therefrom, and this contract to be of no further force and effect.
“Six. The parties of the first part agree to pay the pro rata portion of the taxes for the year 1912, up to the time the deal is closed, in addition to all back taxes upon the property to be conveyed by them, and the said party of the second part agrees to pay the pro rata portion of the taxes for the year 1912, up to the same time, upon the property to be conveyed by him, as well as all back taxes. .
“This contract is executed in triplicate, this the 20th day of April, 1912.”

This contract was duly signed and acknowledged by both of the parties thereto.

Plaintiff further alleged tender of performance upon his part of all obligations and con ditions by him to be performed under the terms of his contract; that he demanded compliance with the contract upon the part of defendant Clara Kanaman and her husband, and of their refusal to comply therewith.

The questions raised by the demurrers are practically these: (1) It being alleged that the property was the separate property of the wife, she could not be bound by an agency contract of sale; (2) that the contract of agency entered into with the agent, Olschew-ske, was only a contract to find and produce a purchaser, with no authority on the part of such agent to bind the wife to a contract of conveyance; and (3) the contract alleged by plaintiff is in contravention of the statute of frauds.

Appellant under appropriate assignments of error, urges the proposition that:

“The executory contract of a married woman to convey her separate real estate when, she is joined by her husband, and the instrument is properly acknowledged, can be enforced by decree of specific performance, as against the wife.”

This is met by appellees by the following counter proposition:

“A contract to convey the separate estate of the wife, executed by the husband and wife, and separately acknowledged by the wife, cannot be enforced against her will, because under the statute she has no power to contract to convey, but only the power actually to convey her separate estate.”

The proposition and counter proposition fairly raise the principal question which this court is called upon to decide.

The only statute conferring upon the wife the power to dispose of her separate real estate is article 1114, Revised Statutes 1911, which provides:

“The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in articles 6802 and 6805.”

At common law the wife possessed no contractual capacity whatever. Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779. The separate estate she possessed at the time of her marriage became absolutely the property of the husband for the purposes of control and sale. She was without capacity to convey her separate estate. The common law was adopted in Texas in 1840 and, at the time of the execution of the contracts above copied, existed as effectively as it did at the time of its adoption, except in so far as the same may have been modified by statute.

Soon after the adoption of the common law, however, an act was passed defining the separate property of the wife, and providing the method for its conveyance, the present statute, with respect to the method of conveying the separate property of the wife, is substantially the same as the original act. Paschall’s Dig. art. 1003. At the time of the execution of the contract, no authority was given for the disposing of the wife’s separate estate other than that provided in article 1114. That authority was to convey, and then only when the husband and wife should join in the conveyance; and then the instrument did not take effect as such until acknowledged by the wife priyily and apart from her husband. Unless the' article authorized her to enter into a contract for the sale of her separate real estate, the wife is without authority in this state to make such a contract as could be enforced in equity. Does the statute, then, confer any such authority? Is an instrument, not a conveyance, by the terms of which the wife agrees to make conveyance on the fulfillment of certain conditions, so binding upon her as to authorize the court to compel her to convey?

It has been held that a bond for title is an executory contract of sale, and that such a contract made by the wife, when joined by the husband and properly acknowledged, can be specifically enforced. Angier v. Coward, 79 Tex. 554, 15 S. W. 698; Wright v. Thompson, 14 Tex. 561; Neyland v. Ward, 22 Tex. Civ. App. 369, 54 S. W. 605; Jones v. Goff, 63 Tex. 256; Ley v. Hahn, 36 Tex. Civ. App. 208, 81 S. W. 354.

But this ruling is based upon the principle that a bond for title passes the superior title to the land in equity; in other words, it is a conveyance. Angier v. Coward and Wright v. Thompson, supra. In the case last cited, in discussing the validity of a bond for title as a conveyance of the wife’s separate real estate, it is said:

“It is an admitted principle that, in an execu-tory contract for the sale of land, equity considers the vendor and vendee reciprocally trustees for each other, one for the land and the other for the purchase money. In contemplation of equity, the vendee is actually seised of the estate; and his seizure becomes perfect on the payment of the purchase money. We have’ repeatedly decided that the equitable title of the vendee, who is not in default, may be set up in defense, against an action by the vendor, to eject him from possession, and that such title will sustain an action for the recovery of the land. [Miller v. Alexander] 8 Tex. 42; [Browning v. Estes] 3 Tex. 462. The title of the vendee not in default, and especially after payment of the purchase money, is superior to that of the vendor. In fact, the latter is but a shadow, contrasted with the substance and efficiency of the former.”

It has also been held that a married woman can, jointly with her husband, make a valid conveyance of the lands, her separate property, by an attorney in fact duly authorized by power of attorney, executed and acknowledged in the manner prescribed by law for the execution and acknowledgment of deeds of conveyance. Patton v. King, 26 Tex. 686, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 462, 6 S. W. 775. In the case last cited the ruling in ration v. King is approved, and it is stated that the power of attorney, when followed by the deed of her agent, is treated as the conveyance itself.

It is settled law in this state that the wife can by the joinder of the husband, and her privy acknowledgment, execute a valid and binding trust deed upon her separate property to secure a debt of her husband, or the debt of a third party in which she has no interest whatever. Kellett v. Trice, 95 Tex. 161, 66 S. W. 51; Hall v. Dotson, 55 Tex. 520. In Kellett v. Trice, it is said that:

“In virtue of her power of conveying, the wife, by pursuing the statutory mode, may mortgage her property to secure the debt of her husband or of a third party; the power to convey the absolute title being held to include the lesser power of mortgaging, and the mortgage being sustained as a species of conveyance.”

Thus the three forms of executory contract for the conveyance of the wife’s separate lands, viz., by bond for title by power of attorney when the purchaser’s rights have attached, and by deed of trust or mortgage, are recognized as valid and binding upon the wife when joined by her husband and properly executed and acknowledged, upon the principle that each is a conveyance of her separate estate, as distinguished from a mere contract to convey.

We have found no case, and our attention has been directed to none, holding that an executory contract of a wife to convey her separate real estate, such as the contract under discussion, can be specifically enforce-ed. In Angier v. Coward, supra, strongly relied upon by appellant, Mrs. Angier, joined by her husband, executed to Coward her bond for title to convey to him certain land, the separate property of Mrs. Angier, in consideration of $100, then paid, and the execution by Coward of two promissory notes for $200 each, due, respectively, on the 1st days of January, 1884 and 1885. The notes were afterwards transferred by Angier as collateral security for a loan from one Alston. Coward was placed in possession under the bond. In 1887 Angier and his wife brought suit against Coward in the usual form of trespass to try title to recover the land, and on the trial she testified that she wished to retract the bond for title executed by her. No deed was made by the Anglers to Coward. The trial coijrt found as a conclusion of law that the “defendant Coward having the equitable title by the bond for title, and being the owner of the notes, full title rested in him, subject to the right of Mrs. Angier to recant before making the deed.” In reversing this ruling, Judge Hobby of the Commission of Appeals says:

“In the case under consideration her power and right to retract were exhausted in the execution of the bond for title. The rights and liabilities of the parties then attached, and they should not he impaired or affected by or made subject to the subsequent retraction by the wife, when she had previously exercised and exhausted this right.”

Some expressions by the learned judge in the opinion might indicate that in his opinion it was not intended by the statute to limit or restrict the wife in the exercise of the power of alienation of any character of conveyance or contract which she, in connection with her husband, might deem advantageous to be made with respect to her separate realty, but the only question before the court for decision was upon the efficacy of the bond for title as a conveyance, as shown by this quotation from the opinion:

“But we think the disposition of this cause depends upon and is involved in the question of the validity of the bond for title executed by plaintiffs in error to convey the wife’s separate real estate, and whether such a contract can be specifically enforced against them.”

Any expression of opinion to the effect that the wife might bind herself by any other character of contract that she and her husband might deem advantageous with respect to her separate realty was not called for by the facts of that case, nor by the question of law under discussion, and therefore must be treated as dictum. But, on the other hand, it seems settled in this state that the wife cannot bind herself by an executory contract, not amounting in itself to a conveyance of the legal or equitable title, for the sale of her separate realty. This seems to be the ruling in Kellett v. Trice, 95 Tex. 161, 66 S. W. 51, from which we quote:

“It is settled by the decisions of this state that married women have no power, except such as is affirmatively given by statute, to bind themselves personally by contracts. Wadkins v. Watson, 86 Tex. 194 [24 S. W. 385, 22 L. R. A. 779]; Kavanaugh v. Brown, 1 Tex. 481. Among the powers so given is that of making conveyances of their separate property in the mode prescribed in the statute, when joined by their husbands. It is obvious, therefore, that an agreement by a married woman, attempting to convert her separate estate into community property, however executed, must be invalid, unless her act amounts to a conveyance such as is recognized by the law. * * * In virtue of her power of conveying, the wife, by pursuing the statutory mode, may mortgage her property to secure the debt of her husband or of a third party; the power to convey the absolute title being held to include the lesser power of mortgaging, and the mortgage being sustained as a species of conveyance. It is also held that different methods of conveyance may be adopted, and that husband and wife are not confined to deeds jointly signed by them. Thus they may convey through the agency of an attorney in fact, empowered by their joint power of attorney duly executed or acknowledged (Patton v. King, 26 Tex. 685 [84 Am. Dec. 596]), or the wife may be empowered by the husband to sign his name to the deed, and the conveyance thus executed by her for both will pass title (Rogers v. Roberts, 13 Tex. Civ. App. 190, 93 Tex. 649 [35 S. W. 76]). These are but instances of different kinds of conveyances. In each of them the separate title which the wife possesses, or an interest in it, passes to and vests in the grantee, and her act is therefore strictly within the power given to convey her property. On the other hand, the policy of the law protects the wife’s property from liability from her husband’s debts, and she cannot make it subject to them by mere agreement not amounting to some kind of legal conveyance. Magee v. White, 23 Tex. 180. * * The power to convey does not therefore enable her to contract generally with reference to her separate property, but only to dispose, in whole or in part, of her title; and the only fiperation which her conveyances have is. to pass such title or some interest in it. Wadkins v. Watson, supra. * * * The one power the wife had was to convey her title and, by her conveyance, invest her grantee with the right conveyed. The power she tried to exercise was, by the form of a conveyance, to make a contract changing the legal character of the property. As we have seen, the power of conveying does not include the power to do any such thing.”

In City of San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 477, 44 S. W. 476, Mrs. Grandjean sued the city of San Antonio to recover land which, during marriage, had been her separate estate, but which, during marriage, had been condemned by the city in a suit against the husband alone, and the money awarded was deposited in the bank, the husband withdrawing the one half claimed by him but the wife, declining at first to receive the other half, finally accepted it. •Subsequently the husband and wife were divorced, which was her status at the time of filing suit. In considering this case the court says: »

“The' question is: Can she, under these circumstances, reclaim the property? If the rights of the parties were to be determined upon the principles governing ordinary conveyances of real estate, the separate property of a married woman, the point would not be difficult to resolve. The rule in this state, as in many other jurisdictions, is that the title of the femme covert to her real estate will neither pass nor be affected by her attempted conveyance, except by a deed duly acknowledged by< her upon privy examination and duly eerti-' fied. Neither a deed not duly acknowledged, nor the reception and appropriation by her-of the consideration, nor her subsequent acts showing her acquiescence, nor all these together, will estop her from asserting her title. A contrary rule would enable that to be done indirectly which the statute declares shall be done only by a certain method, and would defeat the purpose of the law. * * * Let us apply these principles to the present case. If Mrs. Grandjean had been sui juris when she drew the $17,500 out of the bank, it is clear that she could not reclaim the property. Does the fact of her coverture make a difference? Under our law, a married woman’s separate property is hers in her own right. This right, except where restrained by statute, carries with it the power of alienation. Under the first section of the act of April 30, 1846 (Pas. Dig. art. 1003), which applied to ‘the land, slaves and other effects, the separate property of the wife,’ it was held that the wife, with the consent of her husband, might.make a sale of her personal property without formality, provided the contract was not made in writing. Ballard v. Carmichael, 83 Tex. 355 [18 S. W. 734]. Our present statute upon the subject applies to her real estate only. Rev. St. [1895] art. 635. Under that article, it was held by the former Court of Appeals, correctly, as we think, that she could convey her personal property without privy examination and acknowledgment. By the word ‘conveyance,’ as used in the article last cited, is meant an instrument which purports to transfer the title of the wife to some other person natural or artificial.”

In 21 Cyc. 1320, it is said, that an agreement of a married woman to sell her real estate is void at common law, even though her husband assents to it, and that a statute authorizing her to convey her common-law property does not make her mere agreement to convey the same a valid contract, since a contract to convey is not a conveyance, and that this rule applies to her separate estate; and in support of the text decisions are cited from the states of Arkansas, Connecticut, Indiana, Maine, New Jersey, Tennessee, and Pennsylvania.

In Wadkins v. Watson, 86 Tex. 202, 24 S. W. 385, 22 L. R. A. 779, it is held that the statutes conferring upon married women the power to convey their separate estates do not confer power on a femme covert to bind herself even by express covenants in a deed, which, if given effect, would operate to prevent her successful assertion of an after-acquired title.

It follows, from what we have stated, that it is our conclusion that the executory contract made by Mrs. Kanaman with Mr. Olschewske, for the sale of her separate es-state, is not binding upon her, and that, under the facts stated, the appellant Blakely could not enforce its specific performance. It was not error, therefore, to sustain the demurrers. These conclusions obviate the necessity of passing upon other assignments of error presented by appellant. The judgment of the court below is affirmed.

Affirmed.


author: DUNKLIN, J.

text:
    FITZGERALD v. FITZGERALD.
    (No. 7977.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 16, 1914.)
    1. Exceptions, Bill of (§ 31) — Approval— Questions Reviewable — Denial of Motion fob Judgment Nunc Peo Tunc.
    Denial of motion for judgment nunc pro tune will not be reviewed where the record contains no bill of exception approved by the trial judge, but contains only a bill of exception ordered filed as a part of the record but not approved because incorrect.
    TEd. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 36; Dec. Dig. § 31.]
    2. Divorce (§ 93)— Grounds — Ceuelty—Pe-tition— Sufficiency.
    The allegation of a petition for divorce on the ground of cruelty that defendant was guilty of many other excesses, outrages, and cruel treatment, so as to render the future living together of the parties insupportable, following acts of cruelty specifically alleged, is too general to put defendant on notice of what he is called on to answer.
    [Ed. Note. — For other cases," see Divorce, Cent. Dig. §§ 292-307; Dec. Dig. § 93.]
    3. Appeal and Eekor (§ 1071) — Harmless Error — Erroneous Findings.
    Where findings of fact sustained by evidence support the judgment, it is immaterial whether the court in making other findings considered testimony heard on a former trial without any proof on the trial of the former testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dee. Dig. § 1071.]
    4. Appeal and Error (§ 206) — Questions Reviewable — Rulings on Evidence.
    The admission of the testimony of witnesses called by the court on its own motion is not reviewable, where no objection was urged to the testimony at the time of its introduction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1273, 1283-1289; Dec. Dig. I 206.]
    5. Divorce (§ ,116) — Grounds — Cruelty — Evidence — Admissibility.
    In a suit by a wife for divorce on the ground of cruelty in the making of charges against her, evidence of the wife’s bad reputation for chastity was admissible on the issue whether the .charges made by the husband so wounded her feelings as to render further living with him insupportable.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 379-385; Dec. Dig. § 116.]
    6. Divorce (§ 124) — Evidence — Sufficiency.
    Under Rev. St. 1911, art. 4633, providing that, before a divorce can be granted, the proor must be full and satisfactory, a divorce is properly denied, where the only testimony consisting of the testimony of a wife and of her mother and grandmother is not full and satisfactory.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456; Dec. Dig. § 124.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by Lada F. Fitzgerald against C. G. Fitzgerald. From a judgment denying relief, plaintiff appeals.
    Affirmed.
    R. S. Phillips, of Cleburne, for appellant.

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

   DUNKLIN, J.

Lada F. Fitzgerald insti-

tuted this suit for divorce from her husband, C. G. Fitzgerald, and, from a judgment refusing her petition, the plaintiff has appealed.

The husband made no defense in the trial court and has filed no brief here. Several assignments of error are presented to the refusal qf plaintiff’s motion for a judgment nunc pro tunc. According to allegations contained in the motion, on a prior day of court plaintiff’s petition for divorce was presented, at which time the trial judge heard evidence and announced that the petition was granted, and a memorandum to that effect was entered upon the trial docket. According to further allegations in the motion, the judge later erased the order and directed the clerk not to enter the same upon the minutes, and this erasure was made not in open court nor in the courtroom. The statement of facts before us contains no showing of any such order entered upon the docket, nor any evidence supporting the allegations in the motion noted above. What purports to be a proposed bill of .exception appears in the transcript reciting that the plaintiff offered proof to sustain the allegations in the motion and that the court refused to hear such proof. But appended to that document is the certificate by the trial judge reading as follows:

“This bill of exceptions examined, and ordered filed as a part of the record in this case, but is not approved because it is incorrect and not true in fact.”

The record contains no bill of exception of any character approved by the trial judge, and the foregoing is the only showing of any attempt to take a bill of exception. Hence, in view of the record, we must conclude that the allegations contained in the motion for a judgment nunc pro tunc were not sustained by proof, and therefore no error is shown in the order overruling the motion.

Cruel treatment was the ground for divorce alleged in the petition. Certain acts of cruelty were specifically alleged. Following such allegations, the petition contained an additional allegation as follows:

“Plaintiff alleges and would show unto the court that the defendant was guilty of many other excesses, outrages, and cruel treatment towards her of such a nature as to render their further living together insupportable.”

Error has been assigned to, the conclusion of the court, in effect, that only such acts of cruelty as were specifically alleged were considered. This assignment must'be overruled. The general allegation of other acts of cruel treatment, without alleging of what they consisted, the time and place of the occurrence, or any other facts which would put the defendant upon notice of what he was called upon to answer under those allegations, was too indefinite to be considered. Wright v. Wright, 3 Tex. 168.

The court found that the defendant made certain charges against the plaintiff which were alleged as acts of cruelty, but further found that they did not produce in her mind any such sense of shame or indignation as was necessary to constitute a ground of divorce, and that such charges did not cause the'separation, but that the defendant left the plaintiff on account of grievances claimed by him against her. The court further found that the answers of plaintiff and her witnesses were evasive, indefinite, and unsatisfactory, and that the evidence given on a former trial of the case conflicts with and contradicts the evidence on the last trial, and that the testimony of plaintiff and her witnesses was not full and satisfactory to the court and was not probably true. Complaint is made that the court considered testimony heard upon the former trial without any proof on this trial of what such former statements of the witnesses consisted. We find some testimony in the record as to what the plaintiff testified on the former trial, but do not find any showing in the statement of facts as to what the other witnesses testified on that trial. The determination of this question becomes immaterial, since other findings of fact by the trial judge amply support the judgment rendered. We are of the opinion further that the other facts so found by the judge are sustained by the evidence.

Error has been assigned to certain findings of fact by the trial court based upon the testimony of a deputy sheriff and a policeman who were called to the witness stand by the trial judge, in1 effect, that the plaintiff’s general reputation for chastity in the community in which she lived was bad. The proposition submitted under these assignments is, in effect, that the court should not on his own motion have called such witnesses to the stand, and that such proof was not admissible to affect the credibility of the plaintiff as a witness who was seeking a divorce on the ground of cruel treatment. A sufficient answer to these assignments is that no objection was urged to the testimony at the time it was introduced.

Furthermore, we are of the opinion that the testimony was admissible^for the purpose of determining what effect was produced upon the mind of the plaintiff by the alleged charges made against her by the defendant, which, according to the allegations in her petition, so wounded her feelings and pride as to render further living with the defendant insupportable. - ,

Under the statutes of our state, before a divorce can be granted, the proof must be full and satisfactory; and as it clearly appears from the findings by the trial judge that the testimony of the plaintiff, her mother and grandmother, which was the only testimony offered in support of the allegations in the petition, was not full and satisfactory, the refusal of the petition for divorce was proper. Revised Statutes, art. 4633; Ingle v. Ingle, 131 S. W. 241.

The judgment is affirmed.

SPEER, J., not sitting.


author: CONNER, C. J.

text:
    DAVIS v. McFALL.
    (No. 7881.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.
    Rehearing Denied May 2, 1914.)
    Estoppel (§ 68) — Grounds—Position in Judicial PROCEEDINGS.
    Under Rev. St. 1911, art. 279, providing that the defendant may replevy any effects, debts, etc., seized or garnished by giving a bond conditioned for the. payment of any judgment rendered against the garnishee, and that where the defendant gives such bond he may make any defense which the defendant in garnishment could make, where defendant replevied a bank deposit which had been garnished, he could not thereafter urge that a third person was the owner of the deposit, and a surety on the replevy bond was likewise estopped to assert ownership to the deposit, though the bond recited that the defendant desired to replevy the deposit for the reason that it “is not” the property of defendant, but belonged to such surety, since the statute authorizes the defendant alone to obtain possession of the property garnished, and the surety could not be permitted indirectly to do so, especially as the language of the recital in the bond was consistent with defendant’s ownership of the deposit when the writ of garnishment was served.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dee. Dig. § 68.]
    Appeal from District Court, Parker County; F. O. McKinzie, Judge.
    Action by R. W. Davis against W. C. McFall, in which J. M. McFall intervened. From a judgment for the intervener, plaintiff appeals.
    Reversed and rendered.
    Lanham & O’Neal, of Weatherford, and Stephens & Miller, of Ft. Worth, for appellant. C. C. Huff, of Dallas, Hood & Shadle, of Weatherford, and Penis & Eberhart, of Mineral Wells, for appellees.

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

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

   CONNER, C. J.

The appellant, R. W. Davis, sued W. C. McFall in the district court upon a promissory note and other indebtedness aggregating at the time of the judgment $6,944, and at the same time caused the issuance of a writ of garnishment and its service upon the First National Bank of Mineral Wells. The writ was served at 5:30 p. m. on the 3d day of February. On or about the 20th day of February thereafter, W. C. McFall as principal and J. M. McFall and C. C. Huff as sureties filed in the district court an approved replevy bond, as provided in article 279 of the Revised Statutes, upon which the Mineral Wells bank paid to W. C. Mc-Fall the sum of $3,000 that had theretofore been deposited by him in that bank under circumstances hereinafter stated. Upon the call of the case in the district court, the appellant secured a judgment against W. C. Mc-Fall for said indebtedness without contest; the only contest being in the garnishment proceeding.

In the matter of the garnishment, the Mineral Wells bank answered to the effect that on January 23 d prior to the service of the writ upon it W. O. McFall had made a deposit in that bank in the usual course of business on open account of $3,000; that this deposit was subject to cheek and made generally and not as a special deposit for any particular purpose; that thereafter on the 3d day of February, 1913, J. M. McFall notified the bank over the telephone that he held a check from W. G. McFall for $3,000 drawn against the bank, but that the check was not accepted by the bank; that later on the same day the writ of garnishment had been served upon it, and on the following' day the said J. M. McFall presented what he claimed to be a check from W. C. McFall on the bank for $3,000 and demanded payment; but that on account of the service of the garnishment writ the bank had refused to pay the same; that thereafter on the 20th day of February, 1913, the defendant W. O. McFall had re-plevied said debt, and the same was paid to him by said bank by virtue of his replevy bond on which J. M. McFall was a surety, and the bank prayed to have the court determine its liability and to protect it from paying its said debt twice.

The record fails to show that W. C. Mc-Fall answered or entered an appearance in any way. J. M. McFall, however, filed a petition for intervention in which he alleged:

That the $3,000 placed in the Mineral Wells bank by defendant W. C. McFall had been so placed as a trust fund “for the purpose of turning same over to this intervener for the purpose of putting through a deal between this defendant and the defendant W. O. McFall.” That “under the agreement between he and Ms father, W. O. McFall, he was to assume and did assume all indebtedness against said property of his father, and in addition thereto was to procure, and he did procure, on'his own responsibility and on his own paper the sum of $7,500 to assist said W. O. McFall financially in clearing up the title to certain lands sold by his said father, W. C. McFall, and to clear up and pay off certain debts of his father, W. C. McFall, and in consideration and return for which, and as a part of said contract and agreement, the said w. G. McFal), joined by his wife, made, executed, and delivered to the said J. M. McFall deeds to certain lands in Palo Pinto, Tarrant, and Erath counties, Tex., on a certain vendor’s lien note for $3,400, and did make and execute to him a check of date February 1, 1913, before the service of said writ of garnishment, payable to his order on the First National Bank of Mineral Wells for this $3,000 sought to reached by this writ of garnishment.” And that due notice thereof had been given to the bank before the service of the writ.

Appellant answered the plea of intervention by special exception and answer raising the issue of estoppel to be hereinafter noticed, by general denial, and specially to the effect that the deposit made by W. C. McFall in the garnishee bank had been made in due course of business and not as a special deposit, and that thereby merely the relation of debtor and creditor had been created between the bank and W. C. McFall; that the bank had not accepted the order contained in the cheek prior to the service of the writ of garnishment; and further that at the time of the issuance of the check the defendant W. G. McFall was insolvent and that the check had been issued for the purpose of placing the proceeds thereof beyond the reach of plaintiff as one of his creditors and for the purpose of hindering and delaying the plaintiff in a collection of his debt, and was therefore void as against the plaintiff.

A trial before a jury upon the issues presented in the garnishment proceeding resulted in a verdict and judgment for the inter-vener, J. M. McFall, which also discharged the garnishee.

While it seems to be substantially undisputed in the evidence that W. C. McFall was insolvent at the time he issued the check in controversy and made the other conveyances specified in the petition of thé intervener, the jury, as must be implied from the verdict under the charge of the court, upheld the good faith of these transactions, and thus lends support to the contention in behalf of the in-tervener that the check under the circumstances should he construed as an assignment of the $3,000 that had been deposited by W. O. McFall in the First National Bank of Mineral Wells. This contention is vigorously assailed by appellant, but we have concluded that we need not determine whether, in view of W. O. McFall’s undisputed insolvency, the transaction as detailed in the petition of the intervener can be upheld as against a creditor without notice of the conveyance, for upon another ground we think the judgment must be reversed and here rendered for the appellant.

The pleading and record show without substantial dispute that the deposit mentioned by W. C. McFall was the usual one in the ordinary course of banking business, merely creating as between the bank and W. C. Mc-Fall the ordinary relation of debtor and creditor. Article 279 of the Revised Statutes provides that after the service of a writ of garnishment it shall be unlawful for the garnishee to pay to the defendant any debt, or to deliver to him any effects; provided, however:

“That the defendant may at any time before judgment replevy any effects, debts, shares, or claims of any kind, seized or garnished by giving a bond with two or more good and sufficient sureties to be approved by the officer who issued the writ of garnishment, payable to the plaintiff in double the amount of the plaintiff’s debt, and condition for the payment of any judgment that may be rendered against the said garnishee in such suit, which bond when properly approved shall be filed among the papers in the cause in which the suit is pending; and in all proceedings in garnishment, where the defendant gives bond as herein provided for, such defendant may make any defense which the defendant in garnishment could make in such suit.”

It will be seen from this statute that it is the defendant in the suit and no other who is thus authorized to replevy effects or debts which are in the hands of the garnishee at the time of the service of the writ, and by the execution of the bond and replevy the defendant in legal effect affirms that the property replevied belongs to him and not to another. Thereafter the courts will not hear him in a contention that some other person and not himself owned the property delivered to him by virtue of the replevy bond. See Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, in which writ of error was refused by our Supreme Court. In that case Flanagan secured the service of a writ of garnishment upon one Wallis, who answered that he was indebted to one Milton Powell in the sum of $50 for board, but that he. had been notified by Seinsheimer that the account had been transferred to him. Seinsheimer later replevied the $50 which was paid to him by Wallis, and it was held that he was estopped from defending in the garnishment proceeding on the ground that the debt was due to Powell instead of to him. In a similar case it was said by the Supreme Court of Nebraska (see Allyn v. Cole, 3 Neb. [Unof.] 235, 91 N. W. 505):

“By giving the bond, the party in whose possession the property was found elected to treat the property as that of -the defendant in the suit. Giving the bond would not prevent her from attacking the attachment itself. * * * But it necessarily operated to prevent any assertion of ownership on her part. Having covenanted that the property should be forthcoming, to answer the judgment of the court, she could, consistently with her agreement, proceed to obtain a judgment for the defendants. To claim that the property which she had agreed to produce for the satisfaction of the judgment was hers, and therefore not subject thereto, would be entirely inconsistent with her undertaking and in contravention thereof. Hence it has been held repeatedly, under statutes such as ours, that the person from whose possession property is taken by attachment may give a redelivery bond, and recognize the property as that of the attachment debtor, confining himself to such defense as the latter may make; or may claim it as his own by replevin or other appropriate proceeding. If he elects the former course, he cannot claim the property as his”— citing numerous cases including decisions from Kansas, Connecticut, California, and New York.

We think it may be safely affirmed that such is the general rule, and hence that W. C. McFall, after the replevy, would not have been heard to say that the property secured by the replevy bond was the property of some person other than himself, and in this respect his sureties, including J. M. McFall, are in no better attitude; for, by joining in the execution of the bond, they thereby made themselves real parties to the suit. See Tinsley v. Ardrey, 26 Tex. Civ. App. 561, 64 S. W. 803.

Intervener, however, insists with apparent force that in the case before us he ought not to be held estopped for the reason that notice of his claim was presented in the face of the replevy bond. The replevy bond, after reciting the issuance and service of the writ of garnishment, further reads:

“Whereas, W. C. McFall, defendant, desires to replevy any. effects, debts, shares, or claims of any kind seized or garnished under and by virtue of the said writ of garnishment in the hands of said garnishee above mentioned for the reason that same is not the property of the said W. C. McFall, but belongs to one J. M. Mc-Fall: Now, therefore, in order to release from the lien of the said writ any and all effects, claims, shares, and debts, if any, owing by or in the possession of the First National Bank of Mineral Wells, Texas, as garnishee, and claimed by the plaintiff herein, that belonged to the said W. C. McFall at the date of the service of said writ and which may be owing by said First National Bank of Mineral Wells, Texas, to W. C. McFall, or his assignee, or which shall come into the possession of the First National Bank of Mineral Wells, Texas, up to the time said garnishee files its answer in said cause, we the undersigned W. C. McFall, as principal, and the other signers hereto as sureties, acknowledge ourselves bound to pay to the said R. W. Davis the sum of thirteen thousand dollars conditioned for the payment of any judgment that may be rendered against said First National Bank of Mineral Wells, Texas, as garnishee in said cause aforesaid.”

We think the case one in which actions speak louder than words. As before observed, J. M. McFall had no right under the statute to obtain possession, as he in fact did, of the $3,000 in the Mineral Wells bank by a replevy. The defendant W. O. McFall alone, under the statute, had such right, and this was undoubtedly recognized by J. M. McFall in the execution of the bond in question. Will the courts uphold him in indirectly doing that which cannot be directly permitted? We think not. The law abhors evasions and subterfuges, and the law will not uphold him in maintaining the benefit secured thereby. Nor do we think the imputed notice necessarily tantamount to a declaration that the $3,000 in the Mineral Wells bank was the property of J. M. McFall at the time of the service of the writ. The bond merely recites that W. C. McFall desired to replevy “for the reason that same is not the property of the said W. C. McFall, but belongs to one J. M. McFall,” using the terms in the present sense, and, as stated, they are not necessarily to be construed otherwise. It is easily conceivable that the indebtedness of the bank to W. O. McFall for the $3,000 in fact continued to the time of the service of the writ of garnishment upon it, and that thereafter an assignment of the fund had been made by W. C. McFall to J. M. McFall for purposes of their own, and the replevy thereafter made in order to render such assignment immediately effective so far as J. M. McFall was interested, and we think such construction should be given to the bond, rather than to impute a trifling with the court, upon which ground alone, as we understand, the defendant should be held to be estopped.

On the whole, we conclude that the judgment should be reversed and here rendered for appellant against J. M. McFall and C. C. Huff, sureties on the replevy bond, for the sum of $3,000 so secured by J. M. McFall, together with all costs of the garnishment proceeding below and the costs of appeal; the judgment in all other respects being undisturbed.

DUNKLIN, J., disqualified and not sitting.


author: HIGGINS, J.

text:
    WASHINGTON COUNTY STATE BANK v. CENTRAL BANK & TRUST CO. OF HOUSTON et al.
    (No. 343.)
    (Court of Civil Appeals of Texas. El Paso.
    June 13, 1914.)
    1. Bills and Notes (§ 133) — Marginal Figures — Statement of Sum in Body of Note.
    The marginal figures in the corner of a note are not a part thereof, and where a difference exists between them and the sum stated in the body of the note, the latter controls.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 330, 331; Dec. Dig. § 133.]
    2. Bills and Notes (§ 326) — Transfer-Fraud — Liability.
    Where a holder of a note, which in its body stated that it was for $75, while the figures in the margin were $7,500, represented that the note was for $7,500, and the buyer thereof rei-fied on the representation and paid $7,500 therefor, the -buyer could recover the difference between $7,500 and $75.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 780-787; Dec. Dig. § 326.]
    3.Banks and Banking (§ 113) — Transactions by Officers — Liability of Bank.
    Where the president and cashier of a bank undertook to deal for it in a sale of notes indorsed in blank, and the buyer thereof understood that he dealt with the officers on behalf of the bank, and delivered a check for the price payable to the bank, it was estopped to deny that the officers acted for it, and it was liable for their fraudulent representations.
    [Ed. Note — For other cases, see Banks and Banking, Cent. Dig. §§ 273-276; Dec. Dig. §
    4.Banks and Banking (§ 112) — Transfer of Notes — Statutory Provisions — Applicability.
    A bank which accepts and cashes a draft given in payment of a note bought from the president and cashier of the bank, purporting to act for it, is liable for fraud of the officers inducing the sale, though they acted without authority, _ notwithstanding Rev. St. 1911, art. 530, which forbids a sale of a note by officers unless authorized so to do by the board of directors.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 271, 272; Dec. Dig. § 112.]
    5.Banks and Banking (§ 109) — Transfer of Notes — Statutory Provisions — Applicability.
    Rev. St. 1911, art. 530, forbidding a sale or indorsement of a note by any bank officer unless authorized so to do by the board of directors, at a regular meeting, and record thereof made on the corporate minutes, refers only to a sale of notes received for money loaned.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §J 257-260; Dec. Dig. § 109.*]
    6. Banks and Banking (§ 112) — Acts of Officers- — Liability of Bank.
    Where a buyer of a note from the president and cashier of a bank, acting for it in selling the note, purporting to be owned by it, drew a check payable to ’ the order of the bank for the price, and the check was cashed and collected through a clearing house, the bank could not disclaim responsibility for fraud of the officers inducing the sale, though one of the officers stole the proceeds of the check.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 271, 272; Dec. Dig. §: 112.]
    7. Principal and Agent (§ 158) — Tort of . Agent — Liability of Principal.
    A principal is liable for the fraud of his agent within the scope of his real or apparent authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 589-598; Dec. Dig. § 158.]
    8.Corporations (§ 423) — Fraudulent Acts, of Agents — Liability.
    A corporation is liable for the fraud of its. agents, committed within the scope of their real or apparent authority.
    [Ed. Note. — For other cases, see Corporations,. Cent. Dig. §§ 1692-1695; Dec. Dig. § 423.]
    9. Pleading (§ 245) — Amendment—Allowance.
    An amended petition, which merely amplifies the allegations of the original petition by pleading more in detail the facts on which the original cause of action is based, is but a continuation of the original suit, and is properly allowed during the trial.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 635, 653-675; Dec. Dig. § 245.]
    10. Pleading (§ 248) — Answer—Supplemental Petition.
    An amended petition, pleading in confession and avoidance of matter contained in an answer, cannot be regarded as setting up a new cause of action, though the same should be pleaded by way of áupplemental petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 686, 687, 689-706, 708%, 709; Dec. Dig. § 248.]
    11. Banks and Banking (I 227) — Sale oe Negotiable Paper — Fraud—Liability.
    In an action against a bank for fraudulent representations inducing a purchase of negotiable paper, the status of the account of the president of the bank making the sale for the bank, and the condition of the maker’s account was immaterial, though the president diverted the proceeds of the draft given for the price to his own personal account.
    [Ed. Note — For other cases, see Banks and Banking, Cent. Dig. §§ 871-873; Dec. Dig. § 227.]
    12. Action (§ 27) — Nature oe Action-Contract or Tort.
    An action for the fraud of the officers of a bank, inducing a purchase of negotiable instruments of the bank, is in tort, and the bank is not liable as on contract, where the buyer accepted the paper without indorsement or guaranty from the bank, though the paper was worthless.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.]
    Error to District Court, Harris County; Wm. Masterson, Judge.
    Action by the Washington County State Bank against the Central Bank & Trust Company of Houston and others. There was a judgment for defendants, and plaintiff brings error.
    Reversed and remanded.
    Masterson & Masterson and Andrews, Streetman, Burns & Logue, all of Houston, for plaintiff in error. Baker, Botts, Parker & Garwood, of Houston, for defendants in error.

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

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

   HIGGINS, J.

The Washington County State Bank sued the Central Bank & Trust Company of Houston, Tex., alleging that in October, 1909, it purchased from the latter commercial paper represented and purporting to be of the aggregate value of $17,500, for which it paid the sum of $17,500. That in the paper so purchased was a note signed by the Shelp Rubber & Supply Company, which reads:

“$7500.00. Houston, Texas, Oct. 12, 1909.
“Six months after date for value received we promise to pay to ourselves, or order, seventy-five and no/100 dollars, etc.
“Shelp Rubber & Supply Co.,
“Per W. B. Shelp.
“Attest: F. W. Thaison, Secy. [Seal.]”

That by the figures upon the margin of the note and the representations of the officers of said company, it was led to believe and did believe that said note was for the sum of $7,500, and so purchased same ¿nd paid that amount therefor; that said compa* ny had received and appropriated that amount in payment for the same. That by ‘reason of such fraud, it was liable to plaintiff in that sum as for money had and received. A peremptory instruction was given in favor-of defendant, in accordance wherewith verdict was returned and judgment so rendered. The note mentioned was indorsed in blank by the Shelp Rubber & Supply Company, and its payment guaranteed by Shelp and Thaison.

The marginal figures in the corner of the note quoted are not to be regarded as a part of the instrument, but merely a memorandum of the amount. Where a difference-appears between such figures and the sum-mentioned in the body of a bill or note, the latter controls. The legal effect of the note as written, was for the principal sum of $75 only. 1 Dan. on Neg. Instr. (6th Ed.) § 86.

Under the allegations, if established, plaintiff was entitled to recover the difference between $7,500 and $75 as for money-had and received, based upon the fraudulent conduct of defendant in error in palming off a note for $75 as being for $7,500, which plaintiff thought it was buying, and upon which basis payment was made. Merryfield v. Willson, 14 Tex. 223, 65 Am. Dec. 117; Bank v. McGaughey, 38 Tex. Civ. App. 495, 86 S. W. 55; Bank v. McGaughey, 48 Tex. Civ. App. 635, 108 S. W. 475; 2 Thompson on Corp. (2d Ed.) § 1612.

The record discloses the following facts:-

H. K. Harrison, as president of Washington County State Bank and in its behalf, entered into negotiations with F. E. Pye and Augustin De Zavalla, president and cashier, respectively, of the Central Bank & Trust Company, for the purchase of some commercial paper from said company; the negotiations having been initiated with De Zavalla.. At the time the negotiations begun, De Za-valla was a state bank examiner, and solicited Harrison to do business with the Central Bank & Trust Company into whose employ he was presently to enter as cashier, and did enter prior to the closing of the negotiations. The negotiation was consummated by Pye-sending a $10,000 obligation to the Washing-County State Bank and the above-mentioned-note. In payment therefor, the bank drew its draft for $17,500 on the Union Bank & Trust Company of Houston, in favor of the Central Bank & Trust Company. Although the draft was payable to Central Bank & Trust Company, the amount thereof was placed to the credit of the individual account of Pye, who appropriated same to his-own personal use. The draft was collected, by the Central Bank & Trust Company through the Houston Clearing House.

In support of the propriety of the peremptory instruction, the defendant in error urges there was no evidence that the Central Bank & Trust Company ever owned or had any interest in the note sold to the Washington County State Bank and the evidence discloses its negotiation and sale to have been a personal transaction of Pye and not of the. bank of which he was president. The correspondence and testimony of the parties conclusively shows that in buying the notes and remitting the purchase money, Harrison dealt with Pye and De Zavalla, as the representatives of the bank, and supposed and acted upon the assumption that he was dealing with the Central Bank & Trust Company through its president, Pye, and cashier, De, Zavalla. In this respect the evidence admits of no question, and under such circumstances the bank must assume responsibility for all their acts and conduct in connection with the transaction. They undertook to act for the bank in a matter properly pertaining to the banking business; Harrison believed and acted and dealt with them upon the assumption that they were so acting. The bank is thereby estopped to deny that Pye and De Za-valla acted for it in the sale of the notes and in collecting the proceeds arid placing same to the credit of Pye. This is a well-established principle of the law of agency, and requires no citation of authority. It follows, also, that it was wholly immaterial whether the bank in fact owned or had any interest in the note in question as collateral security or otherwise. It had been indorsed in blank, and was negotiable by delivery. There was nothing to indicate to Harrison that it was not its owner but, upon the contrary, he had every reason to believe, and did believe and could rightfully assume, that it was.

But it is further insisted that defendant in error cannot be held liable because article 530, R. S. 1911, forbids the sale or indorsement of a note by any of its officers unless authority so to do has been conferred by the Board of Directors at a regular meeting and record thereof made upon the corporate minutes. The record is silent as to any authority of this nature conferred upon Pye, but when it accepted and cashed the draft of plaintiff given in payment for the note, it rendered itself liable. Having accepted the benefit of a transaction procured by the fraud of its officer, it matters not that he acted without authority. Texas, etc., v. Dublin, etc. (Civ. App.) 38 S. W. 404; Bank v. Emery, 78 Tex. 498, 15 S. W. 23; Bank v. Greenville Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 829; 2 Thompson on Corp. (2d Ed.) §§ 1960, 1961.

The statute mentioned refers to the sale of notes received for money loaned, and it has no application whatever.

The Washington County State Bank issued its check for $17,500 in payment for the paper payable to order of the Central Bank & Trust Company, and it was cashed and collected by the payee through the Houston Clearing House. It will not be permitted to retain the benefit of the transaction and disclaim responsibility because its officer and agent had not been formally authorized to sell and negotiate the paper. That Pye stole the proceeds of the draft does not alter the fact that payment was made to his principal. The theft by Pye vs as from the Central Bank & Trust Company. The bank did not act as a mere collecting agency. The draft was payable to it and not to Pye. The 'Central Bank & Trust Company as the payee of the draft, was its owner, and no one else had a right to collect or could collect it. Pye was not in any wise a party thereto, and his appropriation thereof was an unlawful diversion of funds belonging to his principal. The wrongful and fraudulent act of Pye and the employes of the bank in placing the proceeds of the draft to Pye’s individual account cannot affect the rights of the Washington County State Bank, whose entire action in this matter was in good faith and without a suspicion of culpability in any respect. The principal is liable for the wrongful, fraudulent, or deceitful act of his agent committed within the scope of his authority, real or apparent. Mechem on Agency (1st Ed.) § 739; Reynolds v. Witte, 13 S. C. 5, 36 Am. Rep. 678. And corporations are liable for the frauds of their agents, the same as individuals. 2 Thompson on Corp. (2d Ed.) § 1612. The Central Bank & Trust Company must assume responsibility for the acts of Pye in relation to matters which he was apparently transacting in its behalf, and which was within the scope of its business. It must bear the loss resulting from his thieving propensities rather than innocent third persons.

For the guidance of the court upon retrial, our views briefly may be stated:

First. It is wholly immaterial whether the Central Bank & Trust Company in fact owned the note.

Second. It appears beyond controversy the Washington County State Bank paid the Central Bank & Trust Company $7,500 for this note.

Third. Pye stole the same from the Central Bank & Trust Company, which fact in no wise affects the plaintiff’s rights.

Fourth. The correspondence and testimony establishes that Harrison, as president of and for the Washington County State Bank, conducted the negotiation with Pye and De Zavalla, not in their personal capacities, but as officers and representatives of the Central Bank & Trust Company, and such company is responsible for such representations and acts, as its own.

Fifth. The money having been paid by the Washington County State Bank to the Central Bank & Trust Company, the latter cannot escape liability because formal authority to negotiate paper had not been conferred upon Pye by the board of directors, as required by article 530, R. S. 1911.

The court erred in sustaining exceptions to the matter set up in the trial amendment. It did not set up a new cause of action. An amplification of tlie original petition, pleading more in detail tiie facts upon which the original cause of action is based, is regarded as but the continuation of the original suit. Townes on Pleading (2d Ed.) 457; Thouvenin v. Lea, 26 Tex. 615; Maple v. Smith (Civ. App.) 166 S. W. 1196, recently decided by this court, and cases there cited.

Furthermore, the facts alleged in the amendment were in avoidance of matter contained in the answer. It would more properly have been contained in a supplemental petition, and facts so pleaded in confession and avoidance will not be regarded as setting up a new cause of action. Fire Association v. Strayhorn, 165 S. W. 901. The fact that they were pleaded in an amendment to the original petition rather than by way of supplement does not alter the rule.

The exclusion of the evidence complained of under the thirteenth, fifteenth, and sixteenth assignments presents no error, as it is all irrelevant and immaterial. The overdrawn status of Pye’s account with defendant and the condition of the Shelp Rubber & Supply Company’s account and its successor has no bearing upon the questions controlling a proper disposition of this case. It is an undisputed fact that Pye diverted the proceeds of the draft to his own personal account and credit, but it was a plain theft from his principal, and it must bear the loss. It cannot shift responsibility for the rascality and peculation of its president to the shoulders of innocent third persons, and inquiry into the condition of the accounts mentioned is wholly profitless.

The trial of this case seems to have been upon a false theory and issues not raised by the pleadings. The pleadings state an action for deceit^ based upon the fraud of defendant in selling a note supposed to he for the principal sum of $7,500, but which in fact was for $75 only, and for which it was paid $7,500. It is an action ex delicto. The legal effect of the note introduced in evidence is that it is for $75, though the witnesses at times speak of it as a $7,500 note. In considering the appeal, we have confined our consideration and discussion to the issues raised by the pleadings. The note offered in evidence sustains the allegation that it was for $75 only, and it appears the plaintiff has been swindled out of the difference between such amount and $7,500. It is upon this theory that the appeal is disposed of. Since the Central Bank & Trust Company is not in any wise a party to the note, it cannot be held liable as upon contract, upon any phase of the transaction out of which' this litigation arises. If it could be shown under appropriate pleadings that the note was in fact a $7,500 obligation, and was so treated by the parties thereto and the discrepancy of amount appearing in the body of the note was so written through accident or mistake, then no liability attaches to defendant. The fact that the note was worthless does not impose liability. Plaintiff accepted it without any indorsement or guaranty from defendant, and since there is no contractual relationship, there can be no liability upon such a theory.

We do not, in any manner, desire to he understood as holding that any liability is shown, arising ex contractu.

Reversed and remanded.


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    POE v. FERGUSON.
    (No. 8012.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.)
    1. Courts (§ 170) — County Court — Jurisdiction — Necessity of Alleging.
    The county court has no jurisdiction to restrain trespass and the cutting of timber, where the petition contains no allegation as to the value of the subject-matter of the controversy.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.]
    2. Justices of the Peace (§ 47)— Jurisdiction — Injunction.
    A justice of the peace has no jurisdiction to issue writs of injunction.
    [Ed. Note. — For other cases, see Justices of the^Peaee, Cent. Dig. §§ 184-188; Dec. Dig. §
    3. Courts (§ 120)— Jurisdiction — Amount in Controversy.
    Under Const, art. 5, § 8, declaring that the district court shall have general original jurisdiction over all causes of action for which a remedy is not provided by law, and Rev. St. 1911, art. 4643, empowering judges of the district court to grant injunctions, where the party applying is entitled to the relief demanded, which requires the restraint of some act prejudicial to the applicant, the district court has jurisdiction to restrain a trespass and the cutting of timber, regardless of the value of the timber.
    LEd. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 120.]
    Appeal from District Court, Eastland County; Thos. L. Blanton, Judge.
    Action by Abe Ferguson against H. C. Poe. From an order awarding a writ of injunction, defendant appeals.
    Affirmed.
    Earl Conner, of Eastland, for appellant. R. L. Rust, of Eastland, for appellee.

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

   CONNER, C. J.

Abe Ferguson, upon the order of the district judge, was awarded a writ of injunction upon his petition therefor, and this appeal is from the order mentioned.

The petition alleges that on February 26, 1914, the appellee, Abe Ferguson, was the owner in fee simple of the S. W. % of survey No. 17 in block No. 4, Houston & Texas Central Railway Company survey in Eastland county; that thereafter, on or about the same day, the defendant Poe entered upon said lands, making personal threats against the safety of plaintiff, and ordering him to cease the use and enjoyment of the property; that there was about 50 acres of standing timber upon said land of the value of about $750; that the defendant had commenced cutting down portions of the timber, to the plaintiff’s damage in the sum of $25, and is continuing, and threatening to continue, to cut the same. It was further alleged that, if the defendant was not restrained from cutting the timber as threatened, he would cut great portions of it and remove the same; that it would do the plaintiff irreparable damage, for which he would have no remedy at law, and the prayer was for a writ of injunction to restrain the defendant from cutting the remainder of the timber and for the recovery of said damages in the sum of $25.

The assignments of error in different forms raise substantially the same question. It is insisted that the amount in controversy was the sum named as damages, and, therefore not within the jurisdiction of the district court, but we cannot concur in this contention. The county court is clearly without jurisdiction. See De Witt Co. v. Wischkemper, 95 Tex. 435, 67 S. W. 882. The justice court is also without jurisdiction to issue writs of injunction; it not having been clothed by the Constitution, or laws with the power to grant them. See Foust v. Warren (Civ. App.) 72 S. W. 405; Alexander v. Holt, 59 Tex. 205. .The jurisdiction, therefore, if it exists at all, must be in the district court by virtue of section 8, art. 5, of the amended Constitution of 1876, which’ declares, among other things, that the district court “shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution.”' Revised Statutes, art. 1706; Allen v. Parker County, 23 Tex. Civ. App. 536, 57 S. W. 703.

In general terms our statute empowers judges of the district court to grant writs of injunction, where it shall be made to appear that the party applying for the writ is entitled to the relief demanded, and such relief, or any part thereof, requires the restraint of some act prejudicial to the applicant, and in other cases where the applicant for such writ may show himself entitled thereto under the principles of equity. See Revised Statutes, art. 4643. It is not to be doubted that any unlawful entry upon the premises of another constitutes a trespass. See Pilcher v. Kirk, 55 Tex. 208; Craig v. Cartwright, 65 Tex. 413; McCarthy v. Miller (Civ. App.) 57 S. W. 973; 38 Cyc. 994. And to prevent such trespasses our courts have more than once granted writs. See Creswell v. Beakley, 28 Tex. Civ. App. 245, 67 S. W. 907; Kelly v. Roberts & Robb, 58 Tex. 377. Moreover,, courts of equity have long exercised the power -to restrain the commission of waste or trespasses upon the lands of another, such as alleged in this case. 1 High on Injunctions (3d Ed.) 697; 22 Cyc. 825.

We therefore conclude that the court’s order, and the writ of injunction issued by virtue thereof, cannot be set aside because of a want of power in the district court. Appellant’s prayer on appeal is therefore denied.