author: HUFF, C. J.

text:
    EVANS v. CARTER.
    (No. 770.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.
    Rehearing Denied May 22, 1915.)
    1. Trusts <@=>44t — Evidence—Judicial Sale.
    In a suit to recover a share of the profits realized from the sale of land bought at a judicial sale, evidence held not to show, as a matter of law, that plaintiff had authorized defendant, who was a co-owner with him of notes secured by a second vendor’s lien, to protect his interest at the sale so as to entitle him to share in the profits.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. <§=>44.] ■
    2. Partnership <§=>96 — Purchase op Property by Partner — Judicial Sale.
    Where one partner purchases at a judicial sale land sold on foreclosure of a partnership lien, that purchase does not inure to the benefit of the partnership, but the land may be held by the purchaser for his individual benefit, if the purchase was made openly and without any agreement to stifle competition in bidding.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 144; Dec. Dig. <§=>96.]

      3. Contracts <§=3130 — Validity—Agreement with Purchasers at Judicial Sale.
    An agreement between two parties that one shall purchase the property at a judicial sale and sell it to the other does not necessarily render the sale illegal; but, if the agreement was entered into to stifle competition and to .prevent the property from bringing a fair price, it would be illegal.
    TEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 654-658; Dec. Dig. <&=cl30.]
    Appeal from District Court, Randall County; J. N. Browning, Judge.
    Action by H. Y. Evans against S. G. Carter. Judgment for the defendant, and plaintiff appeals.
    Affirmed.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant. Gustavus & Jackson, of Amarillo, for appellee.
   HUFF, C. J.

The appellant, Evans, brought suit against the appellee, Carter, alleging that some time prior to October 14, 1912, appellant and appellee brought suit on four vendor’s lien notes, of which they were joint owners, and which were for the purchase price of sections 11 and 22, in block No. 6, International & Great Northern Railway lands. We do not state accurately the amount of the lien retained on each respective tract, but make the above statement for brevity, and which notes amounted, principal, interest, and attorney’s fees, at the time of the rendition of the judgment, to $2,631.69. That the suit was prosecuted to judgment in the district court of Randall county against various parties, which are unnecessary to name, and that judgment obtained thereon, together with the judgment in favor of Mrs. Adelina Angle, on her plea of intervention; the decree providing; First, that out of the sal? of the property, payment should first be made on the cost of suit; second, to the judgment of Adelina Angle, amounting to $4,238.64, with interest from the date of the judgment, with 10 per cent, interest from the date thereof; and, third, in favor of H. Y. Evans and S. G. Carter, the amount adjudged in their favor, $2,-631.69, with 8 per cent, per annum from date of judgment. That thereafter an order of sale was issued on such judgment and the land sold thereunder the 1st day of April, 1913. It is alleged that during all the proceedings appellant was residing in the central part of the state, and that the handling of the suit of such partnership interest and property was left to appellee, Carter, and that it was agreed and understood between appellant and appellee that Carter should look after and manage said suit and said property for the joint account and mutual benefit of Carter and Evans, and that in pursuance of such agreement, Carter for himself and Evans attended such sale to protect their joint interest and make bids upon the property and such disposition of the property as would best serve the interest of the parties; that Carter appeared and bid upon the property, but did not faithfully represent the joint and mutual interest of the parties as in law and good conscience he was required to do, but so contrived to manipulate the sale as to defeat and defraud Evans of his right in said note and property and appropriate the same to his own use and benefit; that at the sale there were purchasers who were willing to bid the approximate value of the property, among whom was one Boul-.ware, and that by private and secret understanding between Carter and the said prospective purchasers, and especially with Boulware, Carter arranged so that he might purchase the property at the smallest figure possible, sufficient to cover the costs of suit and sale and the prior judgment of Adelina Angle, agreeing that he would take the property in his own name and thereafter convey it to the purchaser; that such agreement was a breach of trust on the part of Carter, and a scheme to deprive Evans of one-half the proceeds of sale, and in pursuance of such scheme Carter proceeded and prevented other persons from bidding on the land at said sale, and especially preventing Boulware to bid on the land; and he himself bid thereon and secured a sale of the property to him, bidding therefor the sum of $4,559, and took a sheriff’s deed to such property in his own name, and not in the name of Carter & Evans, as in law and equity he was required to do; that of such sum so bid, $52.10 was paid as original court costs,. $90 as sheriff’s costs, and the sum of $4,394.05 was applied to take up the prior judgment of Angelina Angle, and the remainder, $13.84, was divided equally between appellant and appellee, and that $6.92, so appellant was informed, was on deposit with the clerk of the district court or the sheriff of the county; that immediately after the sale, Carter conveyed the premises for $6,500, or at a profit of $2,000, to Boulware; that had Carter in good faith performed the trust imposed upon him and controlled the disposition of the property and proceeds of sale for the mutual benefit of the parties, as he should have done, he would have remitted one-half of such proceeds to appellant, instead of fraudulently appropriating it to his (Carter’s) own use, by reason of which ap-pellee, it is stated, is indebted to appellant in the sum of $1,000.

Appellant alleges that if Carter did not in fact have a previous agreement and understanding with Boulware, or other prospective purchasers, as above alleged, then he says that Carter knew, at the time he bought such property, that such a sale could be made, and that he had previously arranged for such sale and had ascertained the name or names of such purchaser or purchasers, and in violation of the trust imposed upon him and in fraud of appellant’s rights, and that he did immediately sell the same for a profit, as above alleged, and appropriated tlie entire profits to his own use, to appellant’s damage in the sum of $1,500. He prays for judgment for his damages, interest and costs.

“Appellee answered, admitting the joint ownership of the notes, but alleged that they were second lien notes and subject to the prior outstanding notes against the land. Appellee denied that he was acting for appellant in bringing the suit, and set up that long prior to October, 1912, appellant and appellee had ceased to act for each other in any affairs in which they were jointly interested, and that appellee did not assume to act for appellant in suing upon the notes, but that each was acting independently of the other; that appellee employed the attorneys bringing the suit to sue for and collect his interest only in the notes, but gave his consent that the attorneys might communicate and arrange with all other proper parties; and that appellant was not a lawyer and did not know how the pleadings should be drawn, or what legal proceedings were had in handling the suit; that after the judgment and before the sale, appellee, on account of the prior lien, communicated with appellant and sought his co-operation and assistance in protecting their joint interest, but appellant wholly failed to respond. Appellee denied making any arrangements or perpetrating any fraud in reference to the sale of the land, but that he bid at the sale for himself and in px-otection of his individual interest and became the purchaser of the land which he sold, making a profit of $1,427.15.”

The facts show that some time prior to the execution of the notes set out by appellant, H. Y. Evans and Carter had some sort of business association or agreement. Mr. Evans had what was known as the International & Great Northern blocks of land for sale, and there was an agreement that Carter should sell the land, and they would 'divide the profits equally. There is some evidence to the effect that the two sections of land mentioned in the petition were sold to Mrs. Cleve of Potter county, and that she executed the vendor’s lien notes for which judgment was obtained, as set out in the petition. These notes were executed to the owners of the land, who afterwards transferred them to Mrs. Angle, and who sought a foreclosure by plea of intervention in the suit mentioned in appellant’s petition. The relations of Evans and Carter continued friendly up until some time in October, 1911, when, owing to some misunderstanding in an attempted settlement, there appears to have been an estrangement and no communication between the parties, except perhaps one phone message and a postal card. The notes upon which appellant bases his right of action were made payable to H. Y. Evans and S. G. Carter, or their order, by one Kirk, who appears to have purchased the land, just from whom or how is not disclosed, and they were second lien notes; Mrs. Angle’s notes being a prior lien indebtedness. After Kirk obtained the land it appears that he executed a deed of trust to a trustee to secure several named commercial companies scattered over the United States. Carter wrote some letters to Evans; with reference to the matter, but received no replies, and finally approached S. H. Madden, of the firm of Madden, Trulove & Kimbrough, a firm of lawyers in the city of Amarillo, with regard to the matter, and requested him to bring a suit to establish and collect his interest in the notes against the land. Upon an examination of the condition of the title and records and other facts, Madden advised Carter that it would be necessary to make all parties having an interest in the land parties to the suit. It seems that Madden wrote a letter to Evans, finally locating him in Oklahoma somewhere, and that Evans wrote him to proceed with the suit, and that whatever he and Carter did about the matter would be all right. Madden instituted suit on the notes in the name of H. Y. Evans and S. G. Carter, making the trustee in the subsequent deed of trust, Kirk, and various other parties, parties to the suit. After-wards, and before judgment was obtained, Mrs. Angle intervened, setting up her notes as a prior lien, and upon hearing judgment was rendered, decreeing her note a prior lien, and decreeing Evans and Carter’s notes second liens and the parties in the deeds of trust given by Kirk as third lienholders, ordering the sale of the land. An order of sale was issued in accordance with the judgment, and was advertised to be sold some time in February. Carter wrote a letter to Evans of the date of the sale, but received no reply. For some reason, the sale was not had at that date, and the land was readvertised, to be sold the first Tuesday in April, 1913. Carter again wrote a letter to Evans, notifying him, and requested that they get together and talk over the matter, lay aside their differences, if any, and see if they could not arrange so as to protect their interest. Evans did not answer this letter, and paid no attention to it. In one of the letters Carter stated that it might be necessary in order to protect their interest, to arrange and procure money to pay off the prior lien. It seems that Carter made some effort to get others to buy the land and pay off the indebtedness, but was unsuccessful. He stated in one of his letters to Evans that he thought he had a man who would purchase the land, but that he did not know whether he would do so or not; and there are some facts that would indicate that Madden notified Evans of the date of sale, but he appears to have done nothing with regard to the matter, and was not present at the sale of the land. Carter says that he had spoken to a Mr. Smith, connected with the National Bank of Commerce of Amarillo, and that Smith had verbally promised to assist him if necessary; but further than that there appears to have been no arrangements made to obtain money to buy in the land on the morning of the sale.

There is some evidence in the record to the effect that S. H. Madden had agreed to furnish the money to buy off Mrs. Angle’s judgment, and had drawn up a transfer of the same and sent it to some party at Austin, who appears in some way to have been representing Mrs. Angle, and the testimony is not very definite as to what had been done with reference to the matter. There is some testimony to the effect, however, that the transfer, together with a draft from those parties, was then in the National Bank of Commerce of Amarillo, and which draft was drawn on Madden and Carter, for the amount of the judgment. Carter testifies that he attended the sale, but before doing so called on Mr. Madden, and notified him that he was going down to attend the sale, and that he would bid on the property, and that if he bought it in, he would buy it in his own name; Madden denies this. When Carter went to Canyon City, in Randall county, where the sale was had, he met the sheriff, and told him that Madden asked him to postpone the sale and to phone Madden at Amarillo. It appears that Judge G. A. Brandon was representing Mrs. Angle at the sale, and says that Carter, on that morning, told him that Madden had bought her judgment and said that Carter told him that Madden represented his client, and reguested him to phone Madden; that he did phone Madden and there was some sharp colloquy between the parties over the phone, and Brandon refused to postpone the sale, but demanded that it proceed; that he had a letter and wire from parties at Austin, who were representing Mrs. Angle, and that he was directed to sell the land, and that he would not recognize the right of Madden to control that judgment until he got the money, etc., or something to that effect. The sheriff simply testifies that Carter requested that the sale be postponed, stating that Mr. Madden had so requested, and asked them to phone Madden in regard to the matter. There is some conflict in the testimony as to just what was said between the parties with reference to the sale at that time. Madden had not paid the draft at the time, so far as the evidence shows, for the judgment, but had sufficient money to have done so, or could have obtained it readily.

The testimony discloses the fact that Mr. Boulware owned a place adjoining the sections of land for which the notes were given and which were sold, and that some time previous to the institution of the suit, he had made an effort to purchase the land, but, owing to the condition of the various liens, they were unable to close the deal. The evidence discloses the fact that he was desirous of purchasing the land, and that he was present on the day the land was sold at sheriff’s sale. His, and Carter’s, testimony is to the effect that he did not attend the sale for the purpose of buying in the land, but had declared that he would not take the sheriff’s deed to the land, but that if he purchased the land, he must have a warranty deed, together with a clear abstract showing title, and he says it was not his purpose to bid for the land, and that he would not have done so, and did not attend for the purpose of bidding in the land, and never intended to bid it in at the sale, but that his purpose was to purchase the land from any one purchasing at the sale, provided he could get a warranty deed, with a dear abstract of title. The evidence in this case discloses the fact that Carter had requested Evans to assist him in obtaining an abstract to the land, which it appears Evans did not do, but that Carter, at some time, just when is not disclosed, did obtain two different abstracts on the land. Several parties were present at the sale of the land, and after the sheriff refused to postpone the sale at the request of Carter, and after phoning Madden, the land was sold. Both Boulware and Carter testified that there was no agreement between them that Boulware should not bid at the sale, but that he had declined to do so and refused to do so, and all of the witnesses who attended the sale and were placed upon the stand declared that no one requested them not to bid, and they heard of no such request being made, but that the sheriff, in crying the sale, called upon all to bid, calling on some personally to bid. There were two bids made on the land; Brandon made one bid to cover Mrs. Angle’s judgment, and Garter raised his bid a small amount on each tract of land, substantially for the amounts as set out in appellant’s petition. After bidding on the land and after it was struck off to Carter, the sheriff made out a deed to Evans and Carter, without consulting Carter as to whom the deed should be made; that Carter and no one else had instructed him, and nothing was said about it at the time the bids were made; he simply supposing because of the style of the suit that Carter was buying for both. Carter refused to take the deed as so executed, but told the sheriff that he was buying the land for himself, and that he wanted the deed made to him direct, which was done. On the same day, possibly in the afternoon, after the sale was made, Carter sold the land to Boulware for $6,300 cash. Carter paid the sheriff the amount bid by him by a check from Boulware to Carter, and indorsed by Mm to the sheriff, which the sheriff accepted in the payment of Carter’s bid. The sheriff says that before the hour of the sale he met Carter and Boulware, and Carter showed him a check and asked him if it was good and if he did not think so to phone to the bank at Amarillo; that his check would pay the sum bid. This, perhaps, is sufficient statement of the facts, but in discussing the case, if necessary, we shall refer to other facts established by the verdict of the jury, necessary to illustrate our holding. The jury rendered a verdict for appellee, upon which judgment was rendered and from which this appeal is taken.

Appellant’s first assignment of error is based upon the court’s refusal to give special charge No. 1, instructing the jury to find for appellant for one-half of the amount of the net profits obtained by the defendant, S. 6. Carter, in the sale of the two sections of land, because under the law and the evidence appellee was obligated to represent the joint interest of himself and appellant at the foreclosure sale, and should be required to account for one-half of the net profits resulting from the resale of the property, undei which he presents ’ several propositions.

Aside from the interest held together in the notes and the judgment, we do not think it conclusive that there was such fiduciary relation existing between Evans and Carter as conclusively established the fiduciary relationship such as would have warranted the trial court in taking the case from the jury. Appellant admits that he never attempted to make any arrangements with appellee to protect his interest in the sale. He did not answer appellee’s letter, and did not get the abstract requested of him, and he knew the prior lien existed and did not furnish a dollar to any one to take care of it, but he does say he made some arrangements with Madden to take care of the notes. In so far as this record shows, we think that appellant did not trust appellee to look after his interest; at least it is not conclusive that he did so. Under the charge of the court, the jury found that Carter was not representing Evans at the sale, in bidding on the property, and that he had notified appellant and his attorneys that he would not. The evidence in this case tends to show that Evans refused to recognize Carter as in any sense his partner, representative, or agent, but that he repudiated such relationship. The facts tend to show that he placed his interest in the hands of .Madden, and dealt with Carter at arm’s length, and in so far as could be done, annulled all fiduciary relationship between himself and Carter. Evans having so treated the relationship, we can see no duty upon Carter other than that one man owes to another. The trust relationship was repudiated by Evans long before the sale, and the evidence shows that both parties so recognized the repudiation. We recognize, where there is nothing to show a cessation of the confidential relations, that the law will require a strict accountability. After these parties ceased their business relations, there was no more duty upon Carter than upon Evans to buy in this property at public sale. Evans did not trust Carter, but put Ms interest in the hands of Madden by his letters and by his conduct. If Carter is to be believed, and the jury appears to have accepted his testimony, he notified Madden that if he purchased the property, it would be in Ms own interest, and not for Evans. The testimony tends strongly to show that there was no trust reposed in Carter by Evans, but on the contrary, Evans selected another to represent his interest, to whom it was confided and not in Carter. We are inclined to believe there are facts, if the jury accepted them, which take the case out of the general rule.

It is insisted, however, that the evidence establishes a partnership, and under the rule, where a partner buys in an outstanding title or uses partnership funds to purchase property, that such purchase will inure to the benefit of the partnership and not to the individual so purchasing. The facts in this case do not warrant the conclusion that the amount of the bid was credited upon the partnership judgment. If the facts show that the joint judgment was so credited it would then have made no difference to whom the deed was made; it would inure to the benefit of Carter and Evans. This was not in the true sense of the word a buying in of an outstanding title by one partner to the land. It was a sale of the partnership title and interest to the land by the sheriff at public sale under an order of the court. The question therefore is: Can a partner, or a tenant in common, buy in such title when sold under order of court at public sale, for his individual use and profit? When he does so, does he hold it in trust for his cotenant or the partnership? Mr. Justice Lurton has so clearly announced what we believe to be the correct rule that we take the liberty of quoting at length from his opinion:

“But it is said that Jeuner’s relation as tenant in common to appellant and those associated with him as owner of the property sold to pay off this paramount lien forbid his purchase. That there is such a community interest between those who hold a common title as to forbid one such cotenant from acquiring any benefit from the acquisition of an outstanding superior title is undeniable. That a court of equity upon timely application will convert such a purchasing tenant into a trustee for the common benefit is true. The doctrine is considered and applied in Rothwell v. Dewees, 2 Black, 613, 17 L. Ed. 309, and Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189. For much the same reason one tenant may not hold adversely the common property against another, though he may do so, if he act openly, and in that event the statute will run in his favor. Elder v. McClaskey, 17 C. C. A. 251, 37 U. S. App. 199, 70 Fed. 542. But it is plain that the principle which turns a cotenant into a trustee who buys for himself a hostile outstanding title can have no proper application to a public sale of the common property, either under legal process or a power in a trust doed. In such a situation, the sale not being in any wise the result of collusion, nor subject to the control of such a bidder, he is as free, all deceit and fraud out of the way, as any one of the general public. Even a trustee has been held competent to purchase the trust property at a judicial sale, which he has no interest in, nor any part in bringing about, and which sale be in no way controls. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 329; Allen v. Gillette, 127 U. S. 589, 8 Sup. Ct. 1331, 32 L. Ed. 271.
“But it is said that if there is no absolute-prohibition upon one co-owner, buying at an open sale of the common property to satisfy a mortgage or other incumbrance thereon, at least the fiduciary character and common interest due to such a cotenancy require of one who buys the utmost fairness of conduct. Concede this. It is then said that Jenner at the bidding held a power of attorney from three others of the syndicate members, by which he was to bid the property in for their mutual benefit at the lowest price possible, and at a price not exceeding $24,000. That he held this power of attorney and had undertaken to buy at as low a price as possible was not known to appellant, and this ‘secret combination,’ as it is styled and designated, was a fraud upon him. It is plain from the facts of this ease that the scheme for exploiting this Crescent Heights property, according to the agreement exhibited by the share certificates, had practically collapsed, and that for the want of means and harmony among the owners there was no practical way of clearing the property from incumbrances, which had turned out to be about $39,000, a sum larger than seems to have been originally supposed. There was nothing left but for the members of the syndicate to put their hands into their own pockets and put in a large additional sum or let the incumbrances be enforced. This latter is just what happened. In such circumstances it was plainly the right of each one to take care of himself, and if he saw fit to buy at the trust sale on the chance of making something, he was free to do so, provided only he took no undue or unfair advantage of his co-owners, and observed the rules concerning fairness at such a sale which prevails in any circumstances. If two or more of those who had been concerned should choose to unite their fortune in a new purchase, there was no principle of law or morals to forbid. That they should agree to buy at the best price obtainable was their right, if they might buy at all, provided they resorted to no artifice to deter others from bidding. Pewabic Min. Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. 887, 36 L. Ed. 732. Mr. Jenner’s attitude at the sale was that of an open bidder acting in his own interest, and necessarily in opposition to that of the appellee and other co-tenants. -There were others present at the sale, bidding- against him, and chief among them was the appellant himself, who, although he says be intended to give the syndicate the benefit of his purchase, said nothing of it, and seemingly sought to secure himself as best he could in the apparent wreck of the joint enterprise.” Starkweather v. Jenner, 216 U. S. 524, 30 Sup. Ct. 382, 54 L. Ed. 602, 17 Ann. Cas. 1167.

The rule announced by the Supreme Court of the United States has been recognized and announced by other courts. Jackson v. Baird, 148 N. C. 29, 61 S. E. 632, 19 L. R. A. (N. S.) 591; Baird v. Baird, 21 N. C. 524, 31 Am. Dec. 399; Aubuchon v. Aubuchon, 133 Mo. 260, 34 S. W. 569; Becker v. Becker, 254 Mo. 668, 163 S. W. 865; Bennett v. North Colo. Spgs., etc., 23 Colo. 470, 48 Pac. 812, 5S Am. St. Rep. 281; Stevens v. Reynolds, 143 Ind. 467, 41 N. E. 932, 52 Am. St. Rep. 422; Boynton v. Veldman, 131 Mich. 555, 91 N. W. 1022; Hunter v. Fields (Ark.) 169 S. W. 813; Fielding v. White, 32 S. W. 1054; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027; Bates on Partnership, vol. 1, § 311.

Mr. Bates says that he sees no good reason why one partner may not buy in partnership property at execution sale for his individual benefit. He, however, cites authority holding the contrary. It appears to us from this record that Evans refused to take any responsibility or risk and refused to aid in any way in making the property bring the debt. Carter was required to bring the suit, pay the attorney’s fees, procure abstracts and the money to discharge the previous lien, which was over $4,000. After all the burden had been so assumed by Carter, Evans demands half of the profit in the land so purchased. We think, since he was unwilling to go into his own pocket to discharge the prior lien or assist in doing so, and the other necessary expenses, and assenting to and showing a willingness that Ms equity in the land be sold, that'he is now in no position to say, when it was sold by order of the court publicly and openly, - with full notice to him of the time and place of sale, that Carter’s purchase should inure to his benefit. By his acts he clearly evidenced a purpose not to purchase the land, or to be in any way responsible in paying the necessary charges and the prior lien thereon. We do. not believe that after Carter has assumed all the responsibility and risk, and after having solicited and implored Evans to assist him, that he should now be deprived of his profits. Evans had an equal chance with Carter to have purchased the land at public sale had he desired to do so, and no act of Carter’s, so far as this record shows, prevented him from bidding on the land or from being present at the sale. The first assignment will be overruled.

The second, third, fourth, and fifth assignments are overruled for the reasons heretofore set out. We do not think under the Eacts of this case, the law placed the duty upon appellee to act for appellant, and that his purchase thereunder necessarily inured to the benefit of EVans.

The sixth, seventh, and eighth assignments are overruled. We believe under the facts that if Carter was acting for himself in the purchase at the sheriff’s sale, and he did so openly, he was entitled to the profits of the purchase.

The third special charge requested, as drawn, we think the court properly refused. It is stated that, if at the time of or prior to the sale Carter and Boulware had an understanding or agreement that Carter should purchase the property and then resell to Boulware at an agreed stipulation in excess of the amount paid, to find for appellant. Such an agreement would not necessarily render the sale illegal as to appellant. Starkweather v. Jenner, supra, and quotation therefrom. If the charge had further told the jury, if they should find that the parties entered into an agreement to stifle competition or prevent the property bringing a fair price, or to defraud Evans, etc., then we think under the facts and circumstances it should have been given. Parties may lawfully agree to buy land jointly, taking it in the name of the other. There is nothing against a party refusing to bid so long as he does not enter into a combination to stifle bids or for a fraudulent purpose. Ellerd v. Ellison, 165 S. W. 876. The charge, to have been a proper one under the facts and pleadings in this case, should have been so drawn; as drawn, it was a charge on the weight of the evidence, singling out a part of the agreement which of itself is not necessarily illegal.

We find no such error assigned as will require a reversal, and the cause will be affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@nrjEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    MISSOURI, O. & G. RY. CO. OF TEXAS v. BLACK.
    (No. 7196.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 23, 1915.
    On Rehearing, April 17, 1915. On Rehearing by Appellee, May 22, 1915.)
    1. Appeal and Error <@=3499 — Questions Reviewable — Rulings on Instructions.
    An assignment of error complaining of instructions, objections to which are not presented by bill of exceptions as required by Acts 33d Leg. c. 59, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <@=> 499.]
    On Rehearing.
    2. Appeal and Error- <@=722 — Questions Reviewable — Assignments of Error — Motion for New Trial.
    Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), providing that, where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments of error, grounds on which a new trial is sought are assignments of error reviewable on complaint for entering judgment on the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. <@= 722.]
    3. Master and Servant <@=217 — Injury to Servant — Assumption of Risk — “Emergency.”
    An employs who remonstrated with the foreman against moving a rail because too heavy for him and the three others directed to do the work, and who knew that the rail was too heavy for four men, assumed the risk of injury in assisting in moving the rail in the absence of any “emergency,” which is a condition arising suddenly or unexpectedly, and which calls for immediate action without time for deliberation.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <@= 217.
    For other definitions, see Words and Phrases, First and Second Series, Emergency.]
    On Rehearing by Appellee.
    4. Master and Servant <@=297 — Injury to Servant — Assumption of Risk — Special Verdict.
    A special verdict in an action for injuries to an employé assisting three men in moving a rail too heavy for four men that the employs knew that four men were insufficient in number to handle the rail in the manner directed is a finding that he understood and appreciated the danger and assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dee. Dig. <@=297.]
    5. Master and Servant <@=221 — Injury to Servant — Promise by Master.
    A promise by an employer not to subject an employé to danger in the future if he would hazard it is not a promise by the employer to assume the risk of the danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <@=3221.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Dan Black against the Missouri, Oklahoma & Gulf Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    John T. Suggs, of Denison, and Head, Smith, Maxey & Head, of Sherman, for appellant. A. L. Lewis, of Denison, and Hamp P. Abney and Jones & Hassell, all of Sherman, for appellee.
   RASBURY, J.

Appellee sued appellant in the court below for damages for personal injuries inflicted by the alleged negligence of appellant; the precise grounds of negligence being, in substance, the failure of appellant to furnish an adequate number of fellow servants to perform the work in which ap-pellee was engaged at the time he was injured, the promise to furnish adequate help if appellee would proceed witn the work, and negligence in the method of doing the work with the number of fellow servants actually engaged thereat. Appellant specifically denied the negligence alleged, and charged that, if appellee was injured as alleged, such injuries resulted from the risks of his employment which in law he assumed.

The facts essential to a disposition of the appeal and supported by the testimony are, in substance, as follows: Due to a derailment on appellant’s line of railway in the city of Denison, it became necessary to remove two rails from a “coach” track and place them temporarily in the main line where the derailment occurred. A rail weighing between 500 and 600 pounds had been taken from the “coach” track for such purpose. Appellant’s foreman, who was in charge of and directing the work, instructed appellee and three other colaborers to lift the rail and transport it to and place it upon a push car about 60 feet distant in order that same might in turn be conveyed to the main track and substituted for a rail damaged by the derailment. When the order was given appellee remonstrated, saying: “These rails are too heavy for us four men, Cap.” The foreman replied: “Load the rails boys; I am in a hurry to put them in the main line.” Whereupon appellee and his colaborers undertook to lift the rail for the purpose directed, and in the attempt appel-lee was injured as claimed, and concerning which no dispute arises on this appeal. Ap-pellee knew when he attempted to lift the rail that the number of men was inadequate in view of the weight of the rail. The reason he attempted it, in his own words, is because the foreman looked like he was in a-“stretch,” meaning, we assume, under strain or hurry to complete the work. The work was improperly attempted, with four men, but there was a method by which four men could hare safely performed the same, had the foreman instructed them in that particular, which he negligently failed to dp.

There was jury trial and verdict upon special issues, whereby the jury found that six men were necessary to handle the rail in the manner in which it was handled, and that appellant failed to exercise ordinary care to secure such number; that appellee knew that four men were insufficient to perform the work, and that the proximate cause of appellee’s injuries was appellant’s failure to furnish sufficient men to do the work, but that the work could have been safely done by four men with proper instructions from the foreman. The jury also found that there was an immediate necessity for the use of said rails in the main line, and that appellee would not have undertaken to load same on the push car if appellant’s foreman had not informed him of such necessity, and that ap-pellee did not assume the risk of the improper instruction of appellant’s foreman. Upon the findings, the substance of which we have stated, judgment was by the court rendered for appellee, and from which judgment appellant appeals.

The error first assigned in the brief is that “the court erred in refusing to grant the motion of defendant to enter judgment in its favor on the jury’s finding, and in giving judgment for plaintiff,” for the reason that by the undisputed facts appellant was not liable in law. The second ground of error assigned is that “the court erred in rendering judgment in favor of plaintiff on the findings of the jury,” because insufficient, conflicting, and contradictory, and because the evidence was insufficient to support such findings. In limine counsel for appellee objects to our consideration of 'both of these assignments. As we have said, the case was submitted to the jury upon special issues. The two assignments present the same question in a different manner, the first complaining of the refusal of the court to sustain appellant’s motion after verdict to enter judgment for it, and the second complaining that the special verdict and the evidence were insufficient to sustain the judgment entered for appellee. While these identical matters were set out in the motion for new trial as grounds therefor, the error assigned is the action of the court before filing of the morion, and not the action of the court on the motion itself, which is the objection urged by appellee. This question of practice thus raised, while subject to the criticism of being technical, is a well-settled rule. Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485; Weinstein v. Acme Steam Eaundry, 166 S. W. 126. In the first case cited the court holds that, “when a ease has been submitted to a jury on special issues, and the findings of the jury entitle the plaintiff to a judgment, and the trial court overrules a motion to set aside the verdict but the defendant does not, on appeal, assign as error the action of the court in overruling the motion for a new trial,” he cannot complain of the judgment against him on the ground that certain findings of the jury are not supported by testimony. The assignments which are objected to do not, as we have said, complain of the action of the court in overruling the motion for a new trial, but complain of the action of the court in entering judgment for appel-lee; the ground assigned being the insufficiency of the testimony thus coming within the rule stated. While the second assignment urged also asserts that the judgment should not have been entered, for the reason that the answers of the jury to the special issues were conflicting and contradictory, an examination of the findings discloses that, if such conflict and contradiction exists, it is due to a lack of testimony to support same, and not to any conflict or contradiction inherent in the answers, and which fact would yet bring them within the rule.

The third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments bring into review portions of the court’s general charge, or the action of the court in giving or refusing to give certain special charges. Counsel for appellee objects to a consideration of these assignments on the ground that the objections to such charges are not shown to have been preserved by bill of exceptions in compliance with the amendment to the practice acts enacted at the regular session of the Thirty-Third Legislature. The record supports the claim, and, since we are without discretion in the matter, the objections will be sustained, and the assignments overruled.

Finding no reversible error in the record, the judgment is affirmed.

On Rehearing.

On consideration of this case originally we refused, upon objection by appellee, to consider all assignments of error presented by appellant, because not in compliance with the rules, and affirmed the judgment of the trial court without considering the merits of the issues presented by the assignments. Upon reconsideration we conclude we were in error in that respect, so far as relates to the first and second assignments of error. We based our refusal to consider those assignments on the holding in the case of Scott v. Farmers’ & Merchants’ Nat. Bank, 66 S. W. 485, that, “when a case has been submitted to a jury on special issues, and the findings of the jury entitle the plaintiff to a judgment, and the trial court overrules a motion to set aside the verdict, but the defendant does not, on appeal, assign as error tlie action of the court in overruling the motion for a new trial,” the appellant cannot complain of the judgment on the ground that the findings of the jury are not supported by the testimony. The appellant in this case, by its first and second assignments of error, did just what the rule stated prohibits; that is, complained that, while the findings of the jury entitled appellee to a judgment, yet the testimony was insufficient to support same. Stated in another way, the jury found all special issues favorably to appellee. Appellee moved for judgment on the jury’s findings, as did appellant. The court followed the rule announced in the Scott Case, and entered judgment for ap-pellee without reference to whether or not the findings were supported by the evidence, leaving it for appellant to move to set. aside the verdict thereafter on the ground that the evidence was insufficient to support the same. Appellant did file a motion for a new trial setting out therein that a new trial should be granted and the verdict set aside for the reasons contained in his motion for judgment; that is, that the evidence would not sustain the finding of the jury. But, as stated in our original opinion, the error assigned in the brief, and which we were asked to review, was the action of the court in entering judgment for appellee, and not his .action in overruling appellant’s motion for a new trial. Hence the case presented came •clearly within the rule in the Scott Case, and .it only remained for us to observe it. We now find no fault with that rule, and are not to be understood as criticizing its correctness •or its applicability to the issues at the time the opinion was written. What we now conclude is that we overlooked the effect upon the rule announced in the Scott Case of the amendment of article 1612 of the Revised Statutes of 1911, passed at the regular session of the Thirty-Third Legislature, and effective April 14, 1913, prior to the time of the trial of this cause. Article 1612, R. S. 1911, provided that the party appealing should in all cases file with the clerk of the court below “assignments of error, distinctly specifying the grounds on which he relies, * * * .all errors not distinctly specified are waived.” The amended article provides “that where a motion for a new trial has been filed that •the assignments therein shall constitute the .assignments of error and need not be repeated by the filing of the assignments of error,” etc. Gen. Laws Reg. Sess. 33d Leg. p. 276; article 1612, Vernon’s Sayles’ Civ. Stats. 1914. Thus by statute, when motion for new trial is filed in the court below, whether the verdict is general or upon special issues, the assignments contained therein or the grounds upon which the new trial is sought “shall constitute the assignments of error in this court.” As said, appellant did file a motion for new trial in the court below, and incorporated in its brief literally the assignments therein for our consideration as article 1612 directs shall be done, and which we declined to do upon objection by appellee. Our action in that respect, we believe, was erroneous. The declared purpose of the Legislature in amending article 1612 was to abolish the rule prevailing at that time of repeating the grounds of error set out in the motion for new trial in independent assignments of error, together with any rule of decision evolved as the result of the old statute. It would be idle to argue that a litigant could in his motion for new trial complain that the court overruled it, and yet that is what would now be necessary in an attempt to observe the provisions of the amended statute and the rule in the Scott Case arising from the old statute. Appellant did complain of the verdict, and did move the trial judge to set it aside, which he refused to do. Even had appellant observed the old rule and filed independent assignments, which he was not required to do, the precise grounds would have been urged that are now urged, with the difference that the formal statement would have been made in such independent assignments that the court erred in overruling the motion for new trial for the reasons stated in such motion for new trial, and this technical requirement was perhaps one among the reasons inducing the amendment. The provisions of article 1612, as amended, are so plain that much cannot be said on the subject other than that it means what it says. Hence we conclude that under its terms, when the party appealing files a motion for new trial, and one of the reasons urged therein is that the evidence will not support the finding of the jury, whether the verdict is general or upon special issues, and that contention has been overruled by the trial judge by a denial of the motion presenting it, the action of the judge may be reviewed in this court by a presentation of the question in the identical manner in which it was presented in the court below, and that all statutory rules governing special verdicts and the decisions construing same must yield to the terms of article 1612, as amended.

This then brings us to a consideration of the first and second assignments of error upon the merits of the issue thereby presented. As stated in our original opinion, both assignments, in effect, present the issue of whether or not the evidence was sufficient to sustain the several findings of the jury detailed in said original opinion and upon which the court based its judgment. In such connection it is proper to note now, since we failed to do so originally, that it is conceded by counsel for appellee that he was engaged in interstate commerce at the time he was injured, and that hence the common-law rule of assumed risk applies. Proceeding, then, on that premise, we conclude upon the controlling issue that the evidence was insufficient to sustain the judgment and verdict The findings of fact spealc for themselves, but the fact upon which the case necessarily pivots is: Was that which proximatcly caused appellee’s injuries a risk assumed by him under the common-law rule? The appellee testified that he remonstrated with appellant’s foreman when directed to move the rail on the ground that it was too heavy for four men, and the jury found, as a consequence, that appellee knew that four men wore insufficient to perform the work as directed. That such facts and findings present a case squarely within the.rule which holds that, when the servant knows, or by the exercise of ordinary care for his own safety could have known, of the danger of continuing to labor for the master without a sufficient number of competent and careful co-servants, he assumes the risks from such negligent failure of the master. Haywood v. Railway Co., 38 Tex. Civ. App. 101, 85 S. W. 433; Railway Co. v. Miller, 36 Tex. Civ. App. 240, 81 S. W. 535; Railway Co. v. De Rodriguez, 77 S. W. 420; Railway Co. v. Figures, 40 Tex. Civ. App. 255, 89 S. W. 780; Railway Co. v. Lemon, 83 Tex. 143, 18 S. W. 331. Nor is it any limitation on the rule that the master assures the servant that there really is no danger, or that the master also knew of the danger, or that the danger could have been averted by the master by directing the work to be performed in another method. The controlling fact remains that the servant in such cases comprehends fully that it is dangerous for him to attempt the task in the manner directed.

It is also urged by appellee that he was obeying orders of the master in an emergency, which would, aside from all other issues, fix liability upon appellant. Generally speaking, an emergency is a condition arising suddenly or unexpectedly, and which calls for immediate action without giving time for the deliberate exercise of judgment. The evidence here does not present a case within such definition. After appellee, in the exercise of his deliberate judgment and knowledge, had remonstrated against the task assigned him, he was told by the foreman to “load the rails, boys; I am in a hurry to put them in the main line.” The last order was, of course, no more than a repetition of the first, and is insufficient to establish an emergency.

The case, as we have indicated, stands or falls upon appellee’s knowledge of the danger of that which he undertook to do; and since he frankly admits he knew it was dangerous, and since that fact is controlling, we feel that no liability exists against appellant.

Accordingly, the motion for rehearing is granted, and our former order affirming the judgment is set aside, and the judgment of the trial court is reversed, and judgment here rendered for appellant.

Reversed and rendered.

On Rehearing by Appellee.

Counsel for appellee request us to find certain facts, some of which are supported by the evidence, and which are by appellee considered material. In compliance with the request we find: (1) That just before undertaking to lift and load the rail that injured appellee appellant’s foreman dispatched a fifth employs who had been assisting in the work on other business, and, as stated in our original opinion, appellee attempted the work with the remaining four men; (2) that, in addition to telling the employfis to “load the rail, boys; I am in a hurry to put them in the main line,” as stated in our original opinion, the foreman also said, in effect, that after the rail was loaded, “he would not be so particular.” The other requested findings upon examination will be found in our original opinion either in our statement of the case or our statement of the findings of the jury, save the one that “appellee did not understand and appreciate the danger of loading the rails” in the manner directed. Our conclusion in that respect is that appellee did understand and appreciate the danger of loading the rails in the manner directed. Such was also the effect of the finding of the jury when they declared, in answer to a special issue, that appellee knew that four men were insufficient in number to handle the rail in the manner directed.

It is earnestly insisted by able counsel that when appellant’s foreman, in effect, promised to furnish a sufficient number of men with which to do similar work after the rail which injured appellee had been loaded, a new contract was created whereby appellant assumed the risk incident to the immediate engagement, and cites in support of the contention the rule, announced in many cases, that the effect of a promise by the master to repair or restore instrumentalities with which the servant is engaged in the discharge of his duties, when relied upon by the servant, creates another and different contract whereby the master assumes the risk pending repair or restoration. We conclude, however, that the rule stated has no application to the facts in the instant ease. Such conclusion is reached for the reason that the promise was not to relieve the existing condition, but rather a promise not to subject appellee to a like danger in the future if he would take the hazard of the one in which he was then engaged.

We recognize, as urged by appellee, that the evidence supports the finding of the jury that he was seriously injured, and that the verdict, measured by his injuries, is small. At the same time, such facts are without force in view of the rules of law invoked by appellant, and which it is its right to have applied.

Accordingly we conclude that the ease has been correctly disposed of, and the appellee’s motion for rehearing is overruled.
      «SpjFor other cases see.same topic and KEY-NUMBER'in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    DAVIS et al. v. HOWE.
    (No. 778.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.
    On Motion for Rehearing May 22, 1915.)
    1. Adverse Possession <@=>79 — Tax Deeds— Limitations — “Deed . ’ ’
    A tax deed not void on its face, but only because of extrinsic evidence, is a “deed” within the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459^462; Dec. Dig. <@=> 79.
    For other definitions, see Words and Phrases, First and Second Series, Deed.]
    2. Adverse Possession <@=>79 — Tax Deeds— Limitations.
    Possession under a tax deed during the time allowed the owner for redemption is not adverse under the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. <S=> 79.]
    3. Adverse Possession <@=>100 — Tax Deeds— Limitations.
    A deputy sheriff, who had acquired possession of part of a tract, sold it at a tax sale to a third person, who bought for, and subsequently conveyed to, him. There was subsequently a substantial change in his possession and use by additional fencing and by placing a large part thereof in cultivation. The unfenced part was occupied by a lessee. Such possession continued for more than five years after the expiration of the period of redemption. HeW to show adverse possession of the entire tract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. <@=o
    On Motion for Rehearing.
    4. Advebse Possession <@=>79 — Tax Deeds— Validity.
    A tax deed, which recites that notices were posted for more than 20 days successively next before the day of sale and which shows an interim of 58 days from date of judgment to date of sale, is not void on its face, but possession under it for five years after the expiration of period of redemption is within the five-year statute of limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. <@=> 79.]
    Appeal from District Court, Hutchinson County; F. P. Greever, Judge.
    Action by Belle Thompson Davis and another against J. F. Howe. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    H. E. Hoover, of Canadian, for appellants. Newton P. Willis, of Canadian, for appellee.

       Writ of error pending in Supreme Court.

   HENDRICKS, J.

George W. Thompson, deceased, was the patentee of section No. 129, certificate 325, in block Z, East Line & Red River Railroad Company survey, situated in Hutchinson county, Tex., and constitutes the land in controversy. The appellants, Belle Thompson Davis and her daughter, Maude Thompson Davis, succeed to all the title of W. M. Thompson, the patentee; Mrs. Davis having been the widow of W. M. Thompson (now married to Davis), and Maude Thompson Davis the daughter of the former union. The appellants, mother and daughter, recovered one-fourth of the section from certain parties defendant, who are not involved in this particular appeal; but the court trying the case, without the assistance of a jury, denied them a recovery against Howe, the appellee in this appeal, for three-fourths of the section, sustaining the latter’s plea of limitation of five years under recorded deed.

In pursuance of a tax sale, July 5, 1904, the sheriff of Hutchinson county executed a tax deed of the same date to one F. J. Brown, purporting to convey said land for the sum of $75.63, as delinquent taxes. Brown in reality, purchased this land for J. F. Howe, the appellee herein, who was at that time a deputy sheriff in that county, under the sheriff who made the sale; and Brown thereafter executed a quitclaim deed, dated the 21st day of December, 1904, to said Howe for a recited consideration of $90, which was never paid; Howe in reality having furnished the consideration paid by Brown to the sheriff for the tax deed of date July 5, 1904. The tax deed to Brown was recorded July 18, 1904, and the quitclaim deed from Brown to Howe was recorded December 22, 1904, and this suit was filed by appellants September 3, 1913. Howe did not prove that the prerequisites required by the statute, effectuating a proper sale, conveying the judgment debtor’s title, had been complied with by the district attorney, referable to the tax proceedings; in fact, the court found, affirmatively, that no affidavit had been filed by the officer in support of the petition that the residences of the owners were unknown, or that they were nonresidents of the state.

Appellants assign that:

“The court erred in rendering judgment for the defendant Howe for three-fourths of the land in controversy, and in not rendering judgment for the plaintiff for all the lands, because the plaintiffs showed good title to the land, and the defendant claimed the same by limitation under a tax deed and failed to prove that all of the prerequisites provided by statute had been complied with before the sale was made.”

This question may be abstract as Howe predicates his claim under the deed from Brown to himself, and by virtue of his adverse possession, and payment of taxes under said registered deed; however, with reference to a tax deed admitted in evidence solely as the basis to sustain the plea of limitation of five years, Chief Justice Stayton said, in the case of Seemuller v. Thornton, 77 Tex. page 158, 13 S. W. page 847:

“The instrument offered in evidence was, within the meaning of the statute, a ‘deed.’ Whether the land had been properly assessed, the time for making sales for unpaid taxes had arrived, the land advertised for the proper time, or the officers legally empowered to make the sale and deed, would be important inquiries if the deed had been offered as evidence within itself of title; but it was not offered for that purpose, and though it may not have been ef-lective to pass title, it was nevertheless a 'deed.’ ”

See Wofford v. McKinna, 23 Tex. 44, 76 Am. Dec. 53; House v. Stone, 64 Tex. 683; Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 122, on the question of tax deeds as a basis for limitation. There is nothing on the face of this deed indicative that it is void.

Appellants also contend, and assign the same as error, that because Howe was deputy sheriff, under the sheriff who made the sale to Brown, and because he provided Brown the money with which to purchase the land at the tax sale, that he could not claim title under the five-year statute of limitations. Article 3770, Vernon’s Sayles’ Civil Statutes, prescribes that:

“If any officer making sale of property on execution, or his deputy, shall, directly or indirectly, purchase the same, the sale shall be void.”

As stated, Howe testified that he was holding under the deed executed by Brown to him, recorded in December, 1904. Assuming that both deeds are void (and the first one is unquestionably), neither contains the suggestion on its face. If they were void, the knowledge and participation of 1-Iowe, could not make them any more so, and the question at least is — assuming that both are absolutely void, for the purpose of argument— would that affect the plea of five years’ statute of limitations, if the requirements of the statute were otherwise complied with?

The case of City of El Paso v. National Bank, 96 Tex. 499, 74 S. W. 21, was one involving the sale of land by the administrator of a certain estate. The trial judge, in the procedure of trespass to try title, held the sale void because of the disqualification of another special district judge, who had ordered and confirmed the sale of said property. The Court of Civil Appeals confirmed the action of the trial court, mainly on the ground that limitations did not run in favor of the United States for the land held by it; the defendant, the City of El Paso, deriving its title from the United States. The Supreme Court granted an application for writ of error, on the ground that they were inclined to the opinion that the evidence was insufficient to justify the finding of the disqualification of the trial judge, and that the administrator’s sale was void on that account ; but upon the submission of the cause, upon an inspection of the record, the Supreme Court discovered that no question of that kind was raised in the Court of Civil Appeals, and hence the Supreme Court was not authorized to consider the assignments attempting to raise the question in that court. There was also a question injected into the case of the lack of confirmation of the administrator’s deed by the special district judge who ordered the particular sale. The Supreme Court said:

“The decisions, in this state, recognize the proposition that an instrument which, when tested by itself alone, appears to be void, is not a deed in the sense of the five-year statute of limitations. Schleicher v. Gatlin, 85 Tex. 270 [20 S. W. 120]; Fry v. Baker, 59 Tex. 404; Wofford v. McKinna, 23 Tex. 36 [76 Am. Dec. 53]; Kilpatrick v. Sisneros, 23 Tex. 113. This principle has application only to deeds which are shown by their own recitals and provisions to be mere nullities, and not those which contain the essential constituents of conveyances, but are void because of want of power to convey or other defect appearing from evidence aliunde. This distinction has often been applied to instruments executed by sheriffs, tax collectors, etc., which are in themselves complete as deeds, but do not pass title for want of authority to make them.”

The court further said, in the course of argument:

“But for the assumed disqualification of the judge, which does not appear from its recitals, it is clear that it would have passed the title of the estate, and this proves that it is, upon its face, a sufficient deed, inoperative only because of lack of authority behind it.”

We rather infer from the opinion that after the execution of the deed a confirmation occurred and before the same was recorded, for the Supreme Court further said:

“When the deed in question was recorded, there had been a confirmation, complete in all things, unless there was a want of power in the special judge to act”

—and held that the instrument under which the United States had claimed the title was a sufficient basis for a claim under the five-year statute. We construe the logic of this opinion to be, that though the judge, who ordered the sale of the property, may have been disqualified, and the proceedings may have been void on that account, however, the instrument being a deed upon its face, the lack of power behind the same would not avail the plea, if otherwise sustained, for the reason that the Supreme Court, after declaring that the undisputed evidence showed a continuous use and occupancy by the government for the proper period, reversed and rendered the cause. See Fry v. Baker, 59 Tex. 404, where married woman’s deed, a nullity without husband’s joinder, would uphold the plea.

The record shows that prior to the date of the tax sale the appellee Howe had acquired a certain character of possession of a part of this land. Thereafter he did some fencing, inclosing a part of the land, and in the spring of 1905, within the inclosure, he broke out a field of 55 acres, planting it to crop, and continuously cultivated the same, also using the field for grazing purposes, for the full period of five years.

It is true that a deed under a tax sale will not support limitation by possession and use for five years under a recorded deed, until the expiration of the two years given the owner in which to redeem; it is held that possession under such a deed is not adverse to the owner during the time allowed for redemption. Davis v. Hurst (Sup.) 14 S. W. 610, a decision by the Commission of Appeals; Beatty v. O’Harrow, 49 Tex. Civ. App. 404, 109 S. W. 414; Bledsoe v. Haney, 57 Tex. Civ. App. 290, 122 S. W. 455.

However, the continued cultivation, use, and enjoyment of a part of the land, deducting this period, is still sufficient to comply with the statute in that respect. The court found that after he acquired the deed to the land, there was a substantial change made in his possession and use of the same, and construing the testimony favorable to the a’ppellee, this change was made by some additional fencing and placing the 55 acres in cultivation, as stated. A portion of this land was unfenced, and during the period of claim and occupancy by appellee of the part which was inclosed, the unfenced portion was leased to another. The appellants assign as error that the unfenced portion of the lands was not used by appellee after the purchase, and that he exercised no ownership over it before 1910, the- time when he leased it to another, and that the same never having been inclosed or in any wise changed from its previous use, the appellee’s use of the land fenced did not constructively extend to the un-inclosed and unfenced portion.

The case of the City of HI Paso v. National Bank, 96 Tex. 496, 74 g. W. 21, supra, holds that where the United States maintained a cemetery on part of a certain tract to which it claimed title under a conveyance valid Upon its face, had sufficient possession to acquire title to the whole tract within the boundaries of the deed under the five-year statute of limitations. The possession, use, and occupancy of a part, draws the seisin to the whole. This we take it is familiar law. Hodges v. Ross, 6 Tex. Civ. App. 437, 25 S. W. 975; Evitts v. Roth, 61 Tex. 81; Porter v. Miller, 76 Tex. 593, 13 S. W. 555, 14 S. W. 334; Brown v. O’Brien, 11 Tex. Civ. App. 459, 33 S. W. 267; Jacks v. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645; also Bowles v. Brice, 66 Tex. 724, 2 S. W. 729. Whittenberg, who was using the unfenced land was holding under Howe.

We are compelled to affirm this judgment, and it is so ordered.

On Motion for Rehearing.

The appellants, in an argument accompanying their motion for rehearing, insist that this court, relative to the five-year statute of limitations, as applied to the registered deed, is in conflict with the case of Mote v. Thompson, 156 S. W. 1106. In the Mote-Thompson Case, it is apparent upon the record in the cause, that neither the three nor the five year statute of limitations could apply; and such pleas, upon the status of the record, were so inapplicable as, that appellant in that cause, did not assign the same in the motion for rehearing, nor in the application for the writ of error to the Supreme Court. There was an assignment, however, based upon exceptions referable to the four-year statute of limitations as applied to the judgment, and on account of the nature of the action of trespass to try title, and the judgment being void, of course! the statute of limitations would have no application whatever; and the language of the court in that cause, “If, as contended by appellees, the judgment is absolutely void, no period of time under any statute of limitation could give the judgment validity,” as applied to that case, is, of course, correct —“no period of time under any statute of limitation could give the judgment validity,” which is an entirely different question than one of giving a deed validity under the five-year prescription.

The Mote-Thompson Case did not hold, nor tend to hold, that which appellant in this case construes it to have held. The case of Railway Company v. Vance, 155 S. W. 698, by this court, was one where limitation was not involved, and where the language used as applicable to an absolutely void judgment is pertinent and correct.

Appellant asserts that the first deed, the tax deed, shows that the notices “were posted for 20 days.” The deed recites that notices were posted “for more than 20 days successively next before the day of sale.” There was an interim of 58 days from the date of the judgment to the date of sale. We did not, as suggested, overlook the sixth assignment of error, but thought it unnecessary to discuss it. It has been frequently held in this state that the statute requiring a sheriff to advertise a sale in a particular manner is not mandatory in the sense that unless complied with he will have no power to sell, with exceptions inappropriate here; and it has been consistently held that noncompliance with the statute in that respect constitutes a mere irregularity. Sales under execution are not void on that account, though, of course, under appropriate conditions, are voidable when the proper effort is made to set the sale aside. Moore v. Johnson, 12 Tex. Civ. App. 694, 34 S. W. 771; Morris v. Hastings, 70 Tex. 29, 7 S. W. 649, 8 Am. St. Rep. 570; Holmes v. Buckner, 67 Tex. 110, 2 S. W. 452; Howard v. North, 5 Tex. 291, 51 Am. Dec. 769; Patton v. Collier, 13 Tex. Civ. App. 544, 38 S. W. 53; Freeman on Executions, vol. 2 (3d Ed.) § 286.

The Supreme Court, in effect held, in the case of Bean v. City of Brownwood, 91 Tex. (referring particularly to bottom page 689, 45 S. W. page 899), referable to a tax sale, that the failure to give personal notice to the owner of land prescribed by another statute, while a grave irregularity, would not render the sale void; though on a motion directly to set the sale aside, on account of its voidability, the failure to give such notice would be cause to vacate the same. If the decisions above apply, and we assumed they did, the suggestion in the deed as to the number of notices was not of itself notice of a void sale and stamp the first deed as absolutely void, on that account alone. However, we préfer to rest our judgment in this case more particularly, as held in the original opinion, upon the quitclaim deed from Brown to Howe.

We admit the great hardship in this case is appealing, and the proposition of a man Knowingly violating the law, in order to obtain a title, though a tax title may he to some repugnant; and we have attempted to solve the difficulty of appellants, that in some manner an officer who obtains another as a purchaser at a tax sale, and then receives from said purchaser another deed, though he may comply with the statute of limitations, as to adverse possession and payment of taxes — that such conduct is an estoppel in law against his plea. We may be in error, but the best investigation and thought we have been able to give are-unavailing to us in view of the decisions of this state, and their tendency with reference to this five years’ statute; and we have never arrived even at the point to solve the question whether to assert such an estoppel for the purpose of destroying said plea, appellant would have been under the necessity of pleading the same, which was not done. Limitation as to land has inherent in it, often, in individual cases, in a moral sense, legalized elements of conduct, which the individual conscience brands as legalized robbery; but according to public policy such statutes, against those who fail to occupy the land in person or by substitute or avail themselves of some of the implied purposes for which the state originally grants the land, are considered statutes of repose, inuring to the benefit of those who will occupy and use the same.

The motion is overruled.
      ¡gr=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. et al. v. THURMAN.
    (No. 773.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.
    Rehearing Denied May 22, 1915.)
    1. Corporations <S=^78 — Stock Subscriptions — Liabilitv to Subscriber.
    Where a contract for a subscription to stock in a corporation to be formed provided that the subscriber should, as soon as the corporation was organized, pay a fixed sum to it in cash or approved securities, and that he would pay to the organizers immediately an amount as his contribution to the expenses of organization, the contract was severable, and the corporation was not liable, after refusing to accept the subscription, for the return of the sum paid to the organizers; since it did not ratify that contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 219-231, 420-424, 429-434; Dec. Dig. <§^>78J
    2. Corporations <@=»30 — Organization—Promoters.
    The promoters of a corporation cannot procure the payment of a bonus to themselves as. commissions and charge - it to the corporation when formed.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. <S=^30J
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by A. W. Thurman against the Commonwealth Bonding & Casualty Insurance Company and another. Judgment for the plaintiff, and defendants appeal.
    Reversed and remanded.
    McLean, Scott, McLean & Bradley, of Ft. Worth, and Hoover & Dial and Frank Willis, all of Canadian, for appellants. Fisher & Palmer, of Canadian, for appellee.
   HUFF, C. J.

Thurman instituted suit in the justice court of Hemphill county against the appellants, the Commonwealth Bonding & Casualty Insurance Company and the Commonwealth Organization Company, a firm composed of R. T. Stuart and Coke Harkrider. He obtained judgment in that court, from which judgment the case was appealed to the district court, which had jurisdiction of appeals from the justice court, in that county, and in which latter court he obtained a judgment for $125, with interest, etc.

The suit was brought by Thurman against the appellants for $125, being a sum of money paid by him to the Organization Company on a subscription for stock to the Commonwealth Bonding & Casualty Insurance Company. The contract sued on is a receipt, as follows:

“Received of A. W. Thurman, of Canadian, Texas, 11/4/10, the sum of $125.00, which is 12% per cent, of total subscription as part payment of twenty-five one-tenth shares of stock in the Commonwealth Bonding & Accident Insurance Company of Ft. Worth, Texas, so set forth in his subscription application, same number as this receipt, bearing even date herewith. Should said subscription be not approved and accepted, the amounts paid as per this receipt will be returned. Not valid unless countersigned by C. S. McDonald, financial representative.”

Signed by the Commonwealth Organization Company, by its secretary, and countersigned by Charles S. McDonald.

The appellee, Thurman, alleged:

“That said Commonwealth Bonding & Casualty Insurance Company was chartered on or about January 1, 1911, and soon after the incorporation of said company it disapproved plaintiff’s subscription for stock and refused to accept the same, and rejected his subscription to stock in said company.”

It further alleges that:

“The Commonwealth Organization Company was the agent and representative of the Commonwealth Bonding & Casualty Insurance Company, and made the acts of said firm its own, ratified the acts of said firm, and especially the acts with plaintiff herein, and it accepted the benefits arising therefrom, and is liable to plaintiff for the amount paid by him under said subscription for stock, as hereinbefore set forth,”

Tlie contract which he executed at the time of getting the receipt is as follows:

“Commonwealth Bonding & Accident Insurance Company.
“Capital $10.00 Surplus, $30.00
“Subscription to Capital Stock.
“No. 1226.
“Whereas, Commonwealth Organization Company of Ft. Worth, Texas, are promoting the organization of a casualty bonding and accident insurance company, to be incorporated in pursuance of the laws of the state of Texas, under the name of Commonwealth Bonding & Accident Insurance Company, or such other name as may be selected, with an authorized capital stock of three .hundred thousand dollars, and a paid-up capital of at least two hundred thousand dollars, paid up and free from organization expenses, all in accordance with a printed prospectus issued by them and delivered to me.
“And whereas, by their acceptance of this subscription said Commonwealth Organization Company agree to endeavor with all reasonable diligence to accomplish on or before December 31, 1910, the organization of said corporation with capital stock fully paid up as aforesaid, they to defray all expenses of the organization and incorporation:
“Now, therefore, I do hereby subscribe to twenty-five one-tenth shares of the par value of ten dollars each of the capital stock of said Commonwealth Bonding & Accident Insurance Company, and agree with said company and the said Commonwealth Organization Company to pay therefor the sum of one thousand dollars, as follows: The sum of eight hundred and seventy-five dollars I agree to pay in money or seourities satisfactory to the insurance department, with 6 per cent, interest, to said Commonwealth Bonding & Accident Insurance Company, or its trustees at Ft. Worth, Texas '(which goes to capital and surplus), at any time after November 1, 1911, immediately upon receipt of notice from said Commonwealth Organization Company that its capital stock has been subscribed in good faith in amounts and at rates netting the company at least two hundred thousand dollars of capital in the aggregate when paid. The remaining sum of one hundred and twenty-five dollars I agree to pay and do pay concurrently with this subscription to the said Commonwealth Organization Company, in consideration of their agreement hereinbefore recited, and in lieu of any further or other contribution to expenses of organization and incorporating said Company.
“No conditions, representations, or agreements other than those printed herein shall be binding on Commonwealth Organization Company or the Commonwealth Bonding & Accident Insurance Company.
‘Witness my hand this the 4th day of November, 1910. A. W. Thurman.
“Witness: Chas. S. McDonald.”
[Name of Subscriber.]

The Commonwealth corporation, appellant, refused to recognize Thurman as a stockholder in the company, he claiming that he offered to execute his note for the amount specified in the contract with deed of trust on 320 acres of land, they demanding deed of trust on 630 acres. Stuart, for the Commonwealth Organization Company, testified that the corporation had accepted Thurman’s subscription contract. The testimony by the secretary of the Organization Company is to the effect that the corporation did not so accept the subscription, and there is some evidence showing that Thurman’s name is not on the books of the corporation as a stockholder, and has never been.

The trial court rendered a judgment against both the Organization Company and the corporation for the amount sued for. The subscription contract is clearly severable. The appellee agreed with the Organization Company that, íd consideration of their services rendered and to be rendered, he would then pay $125, the receipt of which was acknowledged, which was recited to be in payment of the organization expenses. This sum clearly was not, and never was to be, paid to the corporation thereafter to be organized. The corporation received no benefits from this money. The Organization Company undertook to procure the proposed corporation to accept appellee’s proposition, that is, to pay $875, or give his note with security satisfactory to the insurance department, and the appellee agreed so to pay or secure the amount to the corporation. This last sum was for the proposed corporation and for its corporate use and purposes. The $125 was not paid it, nor to its then agents. The corporation then had no existence ; hence could have no agent. If it ratified any contract after its organization, it was the contract to pay $875 or to give security satisfactory to the insurance department. Until appellee did this he was not' entitled to stock in the corporation, and had no right to demand it. There was no contractual relation between the corporation and appellee, according to appellee’s allegation; that is, that the corporation refused to accept his subscription. If it accepted the contract made by the Organization Company, it was the proposition of appellee to pay or secure $875 to the company. If appellee had any cause of action against the corporation after its formation, it was for the breach of the contract to issue stock after the acceptance of his subscription. • He had no cause of action against it for the contract he made with the promoter to organize such company for the services performed in such work. The promoters procured this money for their special benefit, and appellee paid them with such understanding, which is clearly expressed by the instrument he executed.

We do not think promoters who, for their own interest, get up a corporation, can procure for themselves a bonus as commissions and charge it upon the corporation when formed. This would be a breach of faith towards honest stockholders who pay the charter price for the stock, with the expectation of getting it clear of incumbrance. “The only protection of the stockholders and subsequent corporate creditors against such a rule lies in the rule that the corporation is not bound by the contracts of its promoters.” Cook on Corporations, § 707, vol. 3; 10 Cyc. 262(2); American Home Ins. Co. v. Jenkins, 138 S. W. 424, and authorities cited; Commonwealth, etc., v. Cator, 175 S. W. 1074, by this court, not yet officially published. The claim appears to be in this case, because the company accepted the subscription contract, that it ratified all the contract of the promoters with appellee. This instrument evidences two contracts. One is with the promoters to pay a bonus; the other embodies a proposition to the proposed corporation, and, if accepted, becomes a contract, and to that extent ratifies the act of the promoters, but we do not think it can be successfully contended that the acceptance of the proposition is a ratification of the contract with and for the promoters, or that it will make the corporation liable for the money paid as commissions on ■ the contract with the promoters. If the proposition was, in fact, accepted by the corporation, the Organization Company was not required to return the money paid as commission to it. If it was not accepted, the Organization Company alone is liable, and no liability can attach to the corporation. If the corporation accepted appellee’s proposition, then appellee is entitled to a certificate of stock when he pays the sum he agreed to pay the corporation or gives security satisfactory to the insurance department. If he, in good faith, has offered to comply with his proposition, and the corporation, after acceptance, declined to comply by issuing stock, then his action is against the corporation upon the. proposition made to it and accepted, and not upon the contract the promoters made with him to return the money received by them. Upon the proposition to the corporation and its acceptance, he could file his bill, compelling the corporation to issue the stock or to sue the corporation thereon for breach of contract; in either of which events he must show he has complied with his proposition; that is, paid the money or given his note with security satisfactory to the insurance department. By his proposition he has designated the party who should be satisfied with the security. If for any reason conditions have so changed that it was not practicable to have such approval, then he should allege and prove the changed conditions. If, as a matter of fact, the appellee has not complied with his proposition or his undertaking, he is not in a position to enforce compliance on the part of the corporation or for damages on account of breach. The fact that he thought the securities sufficient did not entitle him to the stock. I-Ie proposed to satisfy the insurance department.

The Bomar Case, 169 S. W. 1060, cited by the parties, rests upon an entirely different state of facts to this case. In that case the facts show that the Organization Company and the corporation were acting together in the sale of the contract, and both participated in the fraudulent representations inducing the contract. It was simply held, as to the Organization Company, that both parties being in pari delicto, there was no right of contribution in favor of the one wrongdoer over against the other. This holding was based upon a familiar rule. In this case the Organization Company is liable on its contract to return the money paid to it by appellee if the proposition to take stock was not accepted by the proposed corporation when organized. We do not think the corporation in privity with that contract, and should not be held liable thereon. It is liable, if at all, upon the contract it made with appellee in accepting his proposition to pay the $875.

It occurs to us that the confusion is occasioned in this case in seeking to hold the corporation liable as the principal of the Organization Company. This it was not, and by accepting the proposition made it does not ratify or make the contract to return $125 its contract, for the reason that it did not receive the benefit of that money, which was paid by appellee to obtain the services of the promoters. As seen, appellee alleges that the corporation did not accept the contract. If it did not, then there is no rule that would render it liable. The promoters were not its agents. The corporation was not in existence, and the contract signed by appellee itself shows that fact. The mere fact that any other subscriptions made to the corporation were accepted did not make the promoters its agents in this transaction.

The case will be reversed and remanded.
      @5»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .