text:
    NIX et al. v. ALBERT PICK & CO.
    (No. 6009.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 24, 1918.
    Rehearing Denied June 5, 1918.)
    1. Mortgages &wkey;>284 — Assumption of Debt by Buroifaser.
    Purchaser who agreed to discharge mortgages on five lots, only four of which she purchased, under vendor’s assurance that no interest was then due, and was compelled to pay interest then due, \vith 10 per cent', attorney’s fees, could recover such amount from the vendor.
    2. Vendor and Purchaser &wkey;>259 — Purchase-Money Liens.
    Where vendor owned five lots, four of which were subject to trust deed, and he sold the fifth lot and three others on consideration that the vendee discharge the trust deeds on all of them, and the mortgagee without his consent released one lot and then sought foreclosure, the vendor was entitled as against the vendee to a lien on the two unincumbered lots, until the mortgage lien was discharged.
    3. Mortgages &wkey;>580 — Trust Deeds — Fore-cuosure— Costs.
    Where vendor owned five lots, four of which were subject to trust deed, and he sold the fifth lot and three others on consideration that the vendee discharge the trust deeds on all of them, and she failed to do so, all costs should be awarded against her in the foreclosure suit.
    Appeal from District Court, Bexar County J. T. Sluder, Judge.
    Suit by Albert Pick & Co. against D. H. and Mary E. Touzalin, J. M. Nix, and others. From the judgment rendered, Nix and others appeal.
    Affirmed in part, and reversed and rendered in part.
    Ilenry C. King, Jr., M. L. Roark, and Don A. Bliss, all of San Antonio, for appellants. W. M. Pardue, Lewright & Douglas, and C. A. Keller, all of San Antonio, for appellee.
   SWEARINGEN, J.

Albert Pick & Co. brought this suit against D. H. and Mary E. Touzalin, J. M. Nix, the appellant, and others,, to recover the amount of a note executed by J. M. Nix and assumed by Mary E. Touzalin, and to foreclose a deed of trust lien given by the said Nix to secure the payment of the note. Both Nix and Mrs. Touzalin admitted the cause of action alleged by Albert Pick & Co. The suit resolved itself into a contest between Mary E. Touzalin and J. M. Nix; the former pleading that she was induced to purchase the property by the misrepresentation of Nix to the effect that there was no accrued interest on the notes assumed by Mrs. Touza-lin up to October 13, 1913, the day of the purchase, whereas in fact there was accrued interest to the amount of $380 on each of the three notes. Mary Touzalin admitted that she learned that there was $380 accrued interest on the first of the three notes before she purchased, which interest was assumed by her in the purchase; but she alleged that she relied upon the statement of Nix to the effect that the other two notes had no interest accrued up to the day of the purchase. She therefore sued for the sum of the two amounts of interest accrued on the day of the purchase, which aggregated $760, upon which sum she asked for 6 per cent, interest pe£ annum from date of purchase and for 10 per cent, as attorney’s fees. Nix denied the allegations of misrepresentation concerning the accrued interest, and alleged in substance that he sold to Mary E. Touzalin houses and parcels of land, identified as A, C, E>, and E. Each parcel is described by metes and bounds in the plat made a part of the decree. Parcel A is on the N. E. corner of Augusta street and Baltimore avenue. Parcel 0 is on the S. E. corner of Baltimore avenue and a 10-foot alley opening into Baltimore avenue, and is between and parallel with Augusta and Balias streets. This parcel O is a rectangle facing 97 feet on Baltimore avenue' and 79 feet on the said 10-foot alley. Parcel D is on the N. E. corner of the said alley and Baltimore avenue. Parcel E is on the S. E. corner of Baltimore avenue and Dallas street. This parcel (E) was conveyed to Mary Tou-zalin, but was not incumbered with the deed of trust lien. Parcel B faces south on Augusta street and its S. W corner is 58.51 feet from the N. E. corner of Baltimore avenue and Augusta street. This parcel B was not conveyed to Mrs. Touzalin, but was incumbered with the deed of trust for the benefit of Pick & Oo. Nix further alleged that the sole consideration promised to be paid by Mary Touzalin for the property deeded to her was her promise to pay the indebtedness secured by the deed of trust executed by Nix for the benefit of Albert Pick & Go. and the promise to pay $2,000, secured by a mechanic’s lien. This $2,000 was paid-, and is eliminated from our further consideration. Nix alleged that he owns a vendor’s lien on the properties conveyed by him to Mary Touzalin, viz. parcels A, O, D, and E, because the consideration promised to be paid for same has not been paid. Nix prayed that his vendor’s lien be foreclosed on parcels D and E, in the event parcels A and O failed to sell for an amount sufficient to pay in full the Albert Pick & Co. indebtedness and costs. Special issues were submitted to a jury. Judgment was rendered in favor of Albert Pick & Co. as prayed for, and in favor of Mary E. Touzalin against J. M. Nix for the $760 interest accrued on the date of purchase, together with interest at 6 per cent, per annum from that date to the date of the judgment and also for attorney’s fees of 10 per cent, of the amount of the $760 and interest. Judgment was rendered against Nix on his alleged vendor’s lien.

There is no dispute about the facts in this case, except as to the representations concerning the interest accrued at the date of the purchase, and the jury determined that issue in favor of Mary Touzalin against Nix. The first proposition submitted under the first, second, and third assignments is:

‘.‘The cause of action pleaded by. Mary E. Touzalin over against J. M. Nix being an action for damages against the said Nix alleged to have been suffered by her by reason of being induced to purchase the properties by means of false representations made to her by the said Nix, her measure of damages was the difference between the value of the properties at the time of the purchase and'the price she paid.”

Mrs. Touzalin pleaded facts entitling her to one of three remedies, namely, to’rescind, to recover damages caused by the purchase, and also to recover the excess incumbrance on the property. The latter was awarded her.

M.ary Touzalin promised to pay an indebtedness of $32,000 for the property. Nix accepted ' this promise and conveyed the property in consideration thereof. The indebtedness was $32,760. Mary Touzalin never promised to pay this excess of $760, but because it was secured by a lien on the property she was compelled to pay it. She should recover that amount from Nix if she actually paid it, or if it is paid out of the property she purchased.

The second proposition submitted under the first, second and third assignments is that it was error to adjudge attorney’s fees of 10 per cent, on the $760 against Nix. The notes made by J. M. Nix. and assumed by Mrs. Touzalin required the payment of 10 per cent, of the amount as attorney’s fees. Mary E. Touzalin never assumed or promised to pay the $760. She did not owe it and did not owe the attorney’s fees on it. As the $760, together with 10 per cent, attorney’s fees, was adjudged to be a lien against the property purchased by Mrs. Touzalin, it was fair that she recover the attorney’s fees together with the $760, none of which did she owe: “The first, second, and third assignments are overruled.

The fourth and fifth assignments contend that the court erred in refusing to enforce Nix’s vendor’s lien on parcels D and F, both of which were conveyed by Nix to Mrs. Touzalin in consideration of the promise to pay the indebtedness made the basis of this suit by Albert Pick & Go. The parcel E, which is-on the corner of Baltimore avenue and Dallas street, and on which are two buildings, was never incumbered by the Pick deed of trust. The parcel D was released by Pick & Oo. to Mary Touzalin from the deed of trust without the knowledge or consent of Nix. Mrs. Touzalin, therefore, held both parcels D and E free from the deed of twist lien. The decree in this case enforces the deed of trust lien against the parcels A and O, purchased by Mrs. Touzalin, and also against parcel B, fronting on Augusta street, and on which there was a building, No. 503, which, said parcel B had never been conveyed to Mrs. Touzalin. These facts present the following situation: Mrs. Touzalin acquired title to parcels F and D free from the deed of trust lien, though the consideration she promised to pay for same was the .payment of the indebtedness secured by the deed of trust. On the other hand, the property of Nix, being parcel B, is incumbered and adjudged to be sold to pay the indebtedness which Mrs. Touzalin obligated herself to pay as a consideration for the, conveyance to her by Nix of parcels F, D, A, and O. Mr. Nix owned a vendor’s lien against parcels P and D, which lien will continue until the entire consideration promised by Mrs. Touzalin is paid. Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Senter v. Lambeth, 59 Tex. 259; Henson v. Reed, 71 Tex. 726, 10 S. W. 522; Howe v. Harding, 76 Tex. 17, 13 S. W. 41, 18 Am. St. Rep. 17; St. L., A. & Tex. Ry. Co. v. Henderson, 86 Tex. 307, 24 S-. W. 381; Levy v. Tatum, 43 S. W. 941; White v. Street, 67 Tex. 177, 2 S. W. 529; Clark v. Collins, 76 Tex. 33, 13 S. W. 44; Woodruff v. Erie Ry. Co., 93 N. Y. 626; Marshall v. Davies, 78 N. Y. 421; 39 Cyc. 1802 ; Huyler’s Ex’rs v. Atwood, 26 N. J. Eq. 504; Coolidge v. Smith, 129 Mass. 554; Ballin v. Dillaye, 37 N. Y. 35; Cashman v. Henry, 75 N. Y. 103, 31 Am. Rep. 437. The court erred in refusing to render judgment foreclosing Nix’s vendor’s lien against parcels E and D as well as his vendor’s lien against parcels A and C. The vendor’s lien on A and C is subordinate to the deed of trust lien; nevertheless there is a vendor’s lien on A and C, and the judgment' should foreclose it. The fourth and fifth assignments are sustained.

The sixth assignment complains of the award of the costs of the suit against Nix. We sustain the assignment. This suit was caused by the default of Mrs. Touzalin. She promised to pay the Pick notes and thereby release the deed of trust on parcel B, the property of Nix. She acquired parcels. F and D free from the deed of trust, and because she was a feme covert was not personally liable for her contractual obligation. She appears satisfied to hold the parcels F and D and to sacrifice parcels A and C rather than pay the $13,153.S0 against A and C, notwithstanding the fact that Nix’s property, parcel B, is also incumbered with a lien to secure the payment of the $13,153.80, which she promised to pay as a consideration for parcels F •and D, as well as A and O. All costs should be awarded against her.

The judgment in favor of Albert Pick & Co. is not appealed from, and we do not disturb the judgment in so far as it concerns Albert Pick & Co., except in the order of the sale of the parcels. That part of the judgment which awards the $760, with interest and attorney’s fees, in favor of Mr. and Mrs. Touzalin against J. M. Nix is affirmed. Judgment is here rendered in favor of J. M. Nix against Mary E. Touzalin and her husband, D. H. Touzalin, foreclosing Nix’s vendor’s lien against parcels F, D, A, and C.

It is here ordered,, adjudged, and decreed that parcels A and O be first sold. If these parcels bring a sufficient sum to pay the Albert Pick & Go. judgment, together with all costs, then that no other parcels be sold, and the deed of trust lien, as well as the vendor’s lien, shall be canceled. But if parcels A and C do not sell for enough to pay the said indebtedness Of Pick & Co. and all costs and attorney’s fees, then it is here ordered that the vendor’s lien owned by J. M. Nix on parcels F and D be foreclosed, and it is ordered that the said parcels F and D be next sold and so much of the proceeds of said sale as shall be necessary shall be applied to the payment of the Pick & Co. judgment and all costs, the balance, if any, to be paid to Mary E. Touzalin. It is further, ordered that in the event parcels F and D fail to sell for an amount sufficient to pay the Pick & Co. judgment and all costs, then that parcel B be sold and so much of the proceeds as necessary be applied to satisfy the judgment in favor of Pick & Co. and all costs, the balance, if any, to be paid to J. M. Nix. Should all the parcels above mentioned, namely, A and C and F and D and B, fail to sell for a sum sufficient to satisfy the Albert Pick & Co. judgment and all costs, then it is adjudged and decreed that Albert Pick & Co. do have a personal judgment against J. M. Nix for the balance of the judgment and for all costs.- It is further ordered that in the event either parcels A, C, F, or D, or all of them, sell for enough to pay the Albert Pick & Co. judgment and all costs, then that Mary E. Touzalin do have and recover of J. M. Nix the sum of $1,033.16, for which let execution issue.

The judgment of the trial court is undisturbed in part, affirmed in part, and reversed and rendered in part.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    SOUTHERN SURETY CO. et al. v. HOUSTON LIGHTING & POWER CO., 1905, et al.
    (No. 349.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 16, 1918.
    Rehearing Denied June 5, 1918.)
    Master and Servant i@^>389 — Workmen’s Compensation — Subrogation oe Insurer.
    Neither section 6, part 2, of the Workmen’s Compensation Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq]), providing that the insurance associations may recover indemnity from other persons who would have been liable to the insured employe, nor any other part of the act, in express terms or by implication, confers authority upon the insurer to reimburse himself for compensation paid to an injured employe as against a third person through whose negligence the injury occurred, or to be subrogated to the rights of the beneficiary as against such third person.
    Appeal from District Court, Harris County; Henry J. Dannenbawn, Judge.
    Suit by the Southern Surety Company and another against the Houston Lighting & Power Company, 1905, and others. Prom a judgment sustaining defendants’ demurrers to petition, plaintiffs appeal.
    Affirmed.
    Andrews, Streetman, Burns & Logue and W. L. Cook, all of Houston, for appellants. Baker, Botts, Parker & Garwood, K. C. Barkley, and Jno. W. Parker, all of Houston, for appellees.
   HIGHTOWER, C. J.

This suit was filed in the district court of Harris county by Southern Surety Company and Southwestern Surety Insurance Company, as plaintiffs, against Houston Lighting & Power Company, 1905, and Mrs. Rowena Hauck, a single woman, John W. Parker, and K. C. Barkley, as defendants. All defendants answered and each interposed a general demurrer and general denial to the plaintiffs’ petition, and each of the general demurrers was sustained by the trial court, from which action of the trial court this appeal has been properly prosecuted.

In order that there may be no mistake as to the statement of the cause of action, or .claimed cause of action, relied on by appellants, we here copy their petition in full, to wit:

“Come now Southern Surety Company and Southwestern Surety Insurance Company, hereinafter styled plaintiffs, complaining of the Houston Lighting & Power Company, 1905, and Mrs. Rowena Hauck. a feme sole, John W. Parker, and K. C. Barkley, defendants, and for cause of action show to the court:
“(1) Southern Surety Company is a corporation organized under the laws of the state of Missouri for the purpose of conducting an insurance business, and said corporation has now, and had at all times hereinafter mentioned, a permit to do business in the state of Texas, including within its charter power and its said permit the right to insure subscribers under the Texas Workmen’s Compensation Act, hereinafter more fully referred to.
“(2) Southwestern Surety Insurance Company is a corporation organized under the laws of the state of Oklahoma, having until the date it ceased business, hereinafter referred to, a permit to do business in the state of Texas, with charter powers and authority under its permit to insure subscribers under the Texas Workmen’s Compensation Act, hereinafter more fully referred to.
“(3) Houston Lighting & Power Company, 1905, is a corporation organized under the laws of the state of Texas, with its principal office and place of business in Houston, Harris county, Tex., and with Hon. E. B. Parker, a resident of Houston, Harris county, Tex., as its president, upta whom service may be had.
“(4) Mrs. Rowena Hauck is a resident citizen of Houston, Harris county, Tex., and a feme sole.
“(5) Messrs. John W. Parker and K. C. Barkley are resident citizens of Houston, Harris county, Tex.
“(6) On or about the - day of -, Southwestern Surety Insurance Company ceased business, and under an arrangement with Southern Surety Company to that end, transferred to said company all of its rights, franchises, property, and assets of every character; and said Southern Surety Company, under said arrangement, in consideration of such transfer, assumed all the demands, liabilities, and causes of action of every character which might or could be asserted against the said Southwestern Surety Insurance Company, including the obligation to pay compensation to injured employes under any and all compensation insurance policies theretofore issued by Southwestern Surety Insurance Company.
“(7) On, to wit, the-day of-, and prior to November 25, 1915, Southwestern Surety Insurance Company, for a consideration, issued to Prank Schott, a baker engaged in business in Houston, in Harris county, Tex., its certain policy of compensation insurance, obligating said insurance company to pay the compensation provided for in the Texas Workmen’s Compensation Act, and to otherwise comply with the provisions stipulated therein, whereby and by reason of giving adequate notice and otherwise fulfilling the conditions of the act said Prank Schott became and was on said 25th day of November, 1915, a subscriber within the meaning of said act; and said policy of insurance thus issued was in full force and effect as of that date. On, to wit, the 25th day of November, 1915, Otto Hauck, being then in the employment of said Prank Schott, a baker as aforesaid, and subscriber under said act as aforesaid, met his death as the result of an electrical shock sustained in the course of his employment, which said electrical shock was produced by electricity generated and conveyed to the plant of Prank Schott by the Houston Lighting & Power .Company, 1905, which company, under a contract and agreement with said Prank Schott, was regularly undertaking to furnish light and motor power for the operation of said bakery.
“(8) At the time of the death of Otto Hauck. aforesaid, he left surviving him as claimants of compensation and damages Mrs. Rowena Hauck, his wife, and William Hauck, his father, and Bertha Hauck, his mother.
“(9) On, to wit, the-day of-, and subsequent to the death of said Otto Hauck, Messrs. John W. Parker and K. O. Barkley, as attorneys of record, filed suit in behalf of said Mrs. Rowena Hauck, said William Hauck, and said Mrs. Bertha Hauck, to recover damages of and from the Houston Lighting & Power Company, 1905, alleging • negligence on the part of said corporation, its servants, and agents in causing the death of said Otto Hauck.
“(10) Said suit for damages and the cause of action involved was, without a trial, compromised; setüed, and adjusted, and the respective interests of the parties fixed as shown by written instruments executed, respectively, on, to wit, April 25, 1910, and April 27, 1916; a true and correct copy of each of said instruments being hereto attached and marked, respectively, Exhibit A and Exhibit B, and each of said instruments being made a part hereof as though fully copied in this paragraph.
“(11) Said Exhibit A evidences a contract and agreement by and between Mrs. Rowena Hauck, surviving wife of Otto Hauck, of the one part, and William Hauck and Bertha Hauck, parties of the second part, whereby the said William Hauek and Bertha Hauck accepted the sum of five hundred dollars ($500) out of the consideration for the compromise, adjustment, and settlement of the cause of action asserted against the Houston Lighting & Power Company, 1905, in full and complete settlement and satisfaction of any interest said parties or either of them claimed or had for damages or for compensation by reason of the death of Otto Hauck; all of their right, title, and interest against either the Houston Lighting & Power Company, 1905, or against the insurance company being assigned to the said Mrs. Rowena Hauck.
“(12) Exhibit B evidences a contract and agreement by and between Mrs. Rowena Hauck, William Hauck, and Bertha Hauck, parties of the one part, and Houston Lighting & Power Company, 1905, party of the second part, whereby, for a consideration of seventy-five hundred dollars ($7,500) and court costs paid and to be paid to the parties of the first part by parties of the second part, the aforesaid suit for damages was to be dismissed and not further prosecuted at any time in the future. Of the aggregate consideration named, thirty-five hundred dollars ($3,500) was paid in cash, and as to the remaining four thousand dollars ($4,000) and interest thereupon, said Houston Lighting & Power' Company, 1905, under and by virtue of said contract, promised, bound, and obligated itself to pay, subject to the stipulations and conditions hereinafter stated, said sum, to Mrs. Rowena Hauck, John W. Parker, and K. C. Barkley, in the respective amounts of twenty-seven hundred and fifty dollars ($2,750), seven hundred and fifty dollars ($750) and five hundred dollars ($500) with interest at the date of six per cent. (6%) per annum from the date of the agreement. But, in contemplation of the claim by Southwestern Surety Insurance Company for sub-rogation, by reason of said corporation being the insurer of Frank Schott under the Texas Workmen’s Compensation Act, and the consequent obligation and liability to pay compensation on account of the death of Otto Hauck, said promised payments aforesaid were conditioned upon the failure of said insurance company to maintain its claimed right of subrogation in the courts; and it was stipulated that if such claim should be sustained, in that event, ‘for so much as the party of the second part shall pay to the insurance company on account of its subrogation, to that extent shall the party of the second part have credit on this obligation, holding itself liable and bound to pay as stated the balance to the parties named.’ It was further provided that the second party’s obligation to pay a part or all of said four thousand dollars ($4,000) would mature when and only when there had been a final adjudication by a Court of Civil Appeals or the Supreme Court of Texas as to the right of Southwestern Surety Insurance Company to subrogation against the party of the second part. For full and more complete -details of the contracts and agreements and their nature and effect, reference is hereby made to said Exhibits A'and B.
“(13) Otto Hauck at his death was earning, and had been earning for more than six months prior thereto, the sum of twenty-one and 5%oo dollars ($21.50) per week, and under and by virtue of the provisions of the Texas Workmen’s Compensation Act and said policy, the beneficiaries under said act were entitled to have and receive the sum of twelve and ^o/ioo dollars ($12.90) per week for a period of 360 weeks, or, in the event of a lump sum settlement, such amount as the parties might agree upon, with the approval of the Industrial Accident Board, which payment or payments said Southwestern Surety Insurance Company, by issuing its policy to Frank Schott, as aforesaid, assumed to make, and which said Southern Surety Company, by its agreement and contract with Southwestern Surety Insurance Company, promised, bound, and obligated itself to make in lieu of said Southwestern Surety Insurance Company.
“(14) Pursuant, to the obligations imposed upon it under said act, Southern Surety Company, for Southwestern Surety Insurance Company, and in liquidation of the obligations of said Southwestern Surety Insurance Company in the premises, actually paid at the rate of $12.90 per week the sum of $361.20, and thereafter, under an agreement for a lump sum settlement, approved by the Industrial Accident Board, paid the further sum of $3,-726.27, aggregating the sum of four thousand eighty-seven and 47/ioo dollars ($4,0S7.-47), paid by Southwestern Surety Insurance Company and Southern Surety Company to Mrs. Rowena Iiauck as compensation on account of the death of Otto Hauck, as a result of injury sustained in the course of his employment by Frank Schott.
“(15) Plaintiffs further show to the court that by entering into the compromise agreement aforesaid with the Houston Lighting & Power Company, 1905, the parties plaintiff therein, including the said Mrs. Rowena Hauck and her attorneys, John W. Parker and K. C. Barkley, deprived Southwestern Surety Insur'ance Company1 and its successor, Southern Surety Company, of all opportunity of recouping itself for the amount paid out as a result of the death of Otto Hauck by an action in damages against the Plouston Lighting & Power Company, 1905; since, under the law applicable to such matters, the rights of the insurance company would be by way of sub-rogation to the asserted cause of action brought by Mrs. Ro,wena Hauck and the parents of Otto Hauck, deceased; and in compromising and settling said suit and said cause of action, said parties closed the door against these plaintiffs in that direction, and they are now compelled to seek relief out of the fund which said Houston Lighting & Power Company, 1905, agreed to pay, conditionally, and which said fund said Houston Lighting & Power Company now holds, subject to the result of this suit.
“(16) Plaintiffs further show that, promises-considered, under and by virtue of the obligations assumed in said policy of insurance, and imposed by said Texas Workmen’s Compensation Act, such being rendered fixed and certain by the death of Otto Hauck in the employment of Frank Schott, a subscriber, and by virtue of the payment, in response to said obligations, by Southwestern Surety Insurance Company and Southern Surety Company of the aggregate sum of four thousand eighty-seven and <tVioo ($4,087.47), and under and by virtue of the obligations assumed by Houston Lighting & Power Company, 1905, in compromising and settling the cause of action asserted against it in said suit, and under and by virtue of the right of subrogation which in law inures to the benefit of these plaintiffs, said Houston Lighting & Power Company, 1905, promised, bound, and obligated itself and is now obligated to pay to plaintiffs the amount of money thus paid out by them, or so much thereof as the fundi held by said Houston Lighting & Power Company, 1905, will liquidate and satisfy. Having made demand for payment of said sum, plaintiffs further show that said Houston Lighting & Power Company, 1905, wholly fails to pay the same or any part thereof, to plaintiffs’ damage in the sum of five thousand dollars ($5,000).
“(17) Plaintiffs further show that, by accepting the compensation payments aforesaid, Mrs.. Rowena Hauck thereby in law and in equity relinquished and set over to the plaintiffs an interest in her said cause of action against Houston Lighting & Power Company, 1905, on account of the death of Otto Hauck to the extent of such payments; and by virtue of said payments made pursuant to the obligations theretofore assumed, plaintiffs became subrogated to the extent thereof to any rights against Houston Lighting & Power Company, 1905, asserted by Mrs. Rowena Hauck; and under the principles of law and equity applicable, premises considered, said Mrs. Rowena Hauck and her salid attorneys holding and claiming under her an interest in said sum of money should now be required to relinquish the same in favor of these plaintiffs, and all right, title, and interest thereto should be adjudicated to these plaintiffs.
“(18) While insisting that the compromise 'entered into by Houston Lighting & Power Company, 1905, amounts to an admission of liability on its part for the death of Otto Hauck, and forecloses any question of negligence, yet, pleading in the alternative on this point, plaintiffs allege that the death of Otto Hauck was due to negligence of the Houston Lighting & Power Company, 1905, in that said corporation failed to exercise ordinary care in guarding against 'the hazard of injury or death in conducting its electrical current into the premises of Prank Schott-. IJlaintiffs cannot more particularly aver the negligence than to say that said Otto Hauck and his employer were in no sense negligent in the promises, and that the dangerous agency resulting in said Otto Hauck’s death was entirely in the control of the Houston Lighting & Power Company, 1905, and said death, happening as it did without fault or negligence on the part of the said Otto Hauck, or his employer, itself evidenced negligence of the Houston Lighting & Power Company, 1905.
“Wherefore, premises considered, plaintiffs’ pray that citation issue to each of the defendants to appear and answer this petition, and that upon hearing of this cause plaintiffs have their judgment against Houston Lighting & Power Company, Í905, in the aggregate amount of the sum of four thousand dollars ($4,000), with interest thereupon from April 27, 1916, and that Houston Lighting & Power Company, 1905. be discharged as from any claims to said fund asserted by Mrs. Rowena Hauck, or John W. Parker, or K. C. Barkley, and that said parties and each of them be divested of any right, title, or interest in and to said sum, and that all such right, title, and interest be vested in these plaintiffs; and for all and singular such other and further rights and remedies as plaintiffs may be entitled to have and receive in law or in equity, and as in duty bound will ever pray.”

There is but one assignment of error found in appellants’ brief, which is, in substance, that the trial court erred In sustaining a general demurrer to their petition, because it appeared therefrom that same stated a cause of action, and that the averments therein, taken to be true, would entitle appellants to the relief prayed for. Under this assignment we find two propositions, as follows:

“(1) Where an insurer under the Texas Workmen’s Compensation Act pays compensation to a beneficiary of a deceased employs of a subscriber, and where such beneficiary sues a third party for damages, claiming that deceased’s-death was due to negligence of such third party, and where such third party compromises the suit for a consideration, partly in cash and partly a fund held to protect itself against a claim for reimbursement by the insurer aforesaid, such fund would, under the law applicable to said Compensation Act and peculiar facts of this case, be subjected to the payment of said insurer’s claim for reimbursement; all parties-being before the court.
“(2) Under the Texas death-injury statute, and the law applicable thereto, Mrs. Rowena Hauck if permitted to recover, could have recovered nothing save and except compensatory damages of and from Houston Lighting & Rower Company, 1905_, on account of the death of her husband -negligently caused by said corporation, its servants, and agents; and since the Texas Workmen’s Compensation Act was intended as a substitute for the remedies under the death-injury statute, and was not intended to enlarge the scope of benefits to be received by a survivor of a deceased employe, and since no such survivor would be entitled under the law to more than adequate compensation on account of the death, and since, by her own volition, Mrs. Rowena Hauck compromised the suit in which it must be pi-esumed she could have recovered full compensation, so much of-the consideration for such compromise as would be required to reimburse an insurer under the Texas Workmen’s Compensation xlct for moneys paid her as compensation should be deducted and applied to reimburse such insurer.” ’

Thus it will be readily seen that appellants, who were insurers under the Texas Workmen’s Compensation Act, against the injury which resulted in the Heath of Otto Hauck, and who, under the terms of the act and the provisions of its policy, became liable to Mrs. Rowena Hauck, as the sole beneficiary, and wbo have discharged that liability by paying to said beneficiary the full amount of its obligation, now claim that they are entitled to he reimbursed by the Houston Lighting & Power Company for the full amount so paid by them, on the ground that the death of said Otto Hauck was negligently caused by said Houston Lighting & Power Company. It is argued by appellants, among other things,, that they are entitled to the relief sought, as follows: (1) Under the terms and provisions, as well as under the broad scope and purpose, of the Texas Workmen’s Compensation Act; (2) -because Mrs. Hauck claims and could have received under the Texas death-injury statute only compensatory damages (if any at all), and because she settled, of her own volition, with a negligent third party causing the damages, with notice that appellants would demand and seek reimbursement from such negligent third party; and that if the ■tenms of settlement precluded appellants from pursuing this negligent third party this fact would necessarily -be attributable to Mrs. Hauck’s wrongful settlement, requiring that she relinquish all claim to the fund in question; or, if the terms of settlement still left it open for appellants to pursue the negligent third party, this suit was properly filed for that purpose, and the petition stated a cause of action; that therefore the demurrers were improperly sustained.

We have searched in vain the provisions of the Texas Workmen’s Compensation Act of 1913 (the amendment of 1917 can have no application here), and we have found nothing which in express terms supports the contention of appellants here, and therefore if their contention can have any support by the provisions of said act it must be that it is afforded by implication only. We note that appellants call attention to1 section 3 of part 1 of said act. That section reads as follows:

‘‘The employés of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employers for damages for injuries resulting in death, but such employés and their representatives and beneficiaries shall look for compensation solely to the Texas Employes’ Insurance Association as the same is hereinafter provided for: Provided, that all compensation allowed under the succeeding sections herein, shall be exempt from garnishment, attachment and all other suits or claims, as are current wages now exempted by law.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i.

Appellants further cite section 6, part 2, of said act, which reads as follows:

“If a subscriber enters into a contract, written or oral, with an independent contractor, to do such subscriber’s work, or if a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract with the subscriber, and the association would, if such work was executed by employés immediately employed by the subscriber, be liable to pay compensation under this act to such employés, the association shall pay-to such employés anyi compensation .wbiiehi would be payable to them under this act if the independent or sub-contractors were subscribers. The associations shall, however, be entitled to recover indemnity from any other persons who would have been liable to such employés independently of this section, and if the association has paid compensation under the terms of this section, it may enforce in the name of the employés, or in its own name and for its own benefit, the liability of such other persons. This section shall not apply to independent or sub-contractors on any contract which is merely auxiliary and incidental to, and is no part of or process in, the trade or •business carried on by the subscriber.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq.

It is this section 6 that appellants rely upon, it seems to us, more than anything else in the act, as sustaining their contention, and we concede that able counsel for appellants have presented in their brief a very persuasive and ingenious argument in sup^ port of their contention, and we would be pleased to set out more at length their argument upon this contention if time and space would permit; but, conceding that the argument of counsel in this connection is quite plausible, we have concluded that the contention is not sound. We have discovered nothing throughout the entire act under consideration, that has caused us to believe that it was the intention of the Legislature of this state to give to an insurance company in the attitude of appellants here the right to reimburse itself for moneys paid out in compliance with the provisions of its policy, and under the terms of the act, on account of an injury or death to an employé of a subscriber under the act, by pursuing some third person whose negligence might have caused such injury or death; and that is precisely what appellants are attempting to do in this instance.

In the case of Dallas Hotel Co. v. Fox, 196 S. W. 647, the Amarillo Court of Civil Appeals had under consideration the language of section 6 of the act, as above quoted, and that court held that the language of that section, coupled with other portions of the act, limits the injured employé under compensation, as well as the beneficiary, to the relief provided as against the insurance company, and that a negligent third person could not be held liable to the employé or his beneficiary. If the decision in that case be correct, then, of course, Mrs. Rowena Hauck could not have recovered in her suit against the Houston Lighting & Power Company, and, as stated by appellants, the payment by that company of any sum to her on account of the death of Otto Hauck was a mere gratuity. Counsel for appellants question, however, the correctness of the decision in that case, but at the same time contend that even if the decision in that case be correct still it does not necessarily militate against their contention here. We have read with much care the opinion of the Amarillo court in that case, and while the question there decided is not the precise question here, yet we are unanimously of the opinion that that court reached a correct conclusion on the question there, and that its reasoning is quite persuasive on the question here. We note that the Supreme Court, acting through the committee of judges, granted a writ of error in Dallas Hotel Co. v. Fox, but in doing so made this notation:

“Referred application granted. We are inclined to approve the conclusions expressed in the opinion of Mr. Justice Hall, yet the construction given to the Employers’ Liability Act will apparently be conclusive upon the rights of the parties in the suit, and, moreover, the proper construction of the act as applied to the facts is otherwise important to any final disposition of the case.”

We cannot feel that the Legislature, when it passed the act in question, if it intended thereby to take away absolutely all right of action of an employé and beneficiary as against some negligent outsider, could have also intended that an insurance company under the act should have a cause of action for reimbursement as against some negligent outsider, such as the Houston Lighting & Rower Company in this instance, without expressly so providing. As stated by counsel for appellants in their brief, it is generally known and understood that the Texas Workmen’s Compensation Act of 1913 was modeled after the Massachusetts act on the same subject, and, indeed, was in nearly all respects a copy of the Massachusetts act. Section 15 of part 3 of the Massachusetts act (St. 1911, c.' 751), which applies to the case of an injury to an employé of a subscribing employer by a third party, gave the option to proceed against the third person causing the injury or against the insurance company, "but not against both,” and further expressly provides:

“And if compensation be paid under this act, the association may enforce in the name of the employe, or in its own name, and for its own benefit, the liability of such other person.”

Now, if the Legislature of Texas, in adopting the act of 1913 on this subject, had intended to give to the insurance companies the right of action here claimed, it is strange, indeed, that it did not incorporate this very positive and clear provision of the Massachusetts act as a part of its own on the same subject, rather than leave the'matter for construction by any court at all. It will be found upon comparison of the Texas act with the Massachusetts act that many of the sections of the two acts are literally the same, and yet this clear and positive provision of the Massachusetts act, giving the insurance company the right to reimbursement against the negligent act of a third party causing injury or death to an employs of a subscriber is entirely omitted from the Texas act. We cannot believe that it was the intention of the Legislature of this state, in passing the Workmen’s Compensation Act, to leave to an insurance company in the attitude of appellants here a cause of action as against some negligent outsider whose acts or conduct might cause injury or death to an employe of a subscriber under the Texas act. But even if the Supreme Court of this state, when it comes to decide the question as raised in Dallas Hotel Co. v. Fox, should hold that an employs or his beneficiary under the Texas act may sue a negligent outsider causing injury or death to such employs, still it would seem to us that such holding would be adverse to the real contention of appellants here, because we are not able to understand just how the employe, or, in case of his death, his beneficiary, would have the right to sue the negligent outsider, and at the same time an insurance company would have that sajme right; certainly it seems to us that the same cause of action could not be in both of them at the same time.

But it is further argued by appellants that the Texas death-injury statute provides only for compensatory damages, and that if Mrs. Hauck was not debarred from suing and recovering as against -the Houston Lighting & Power Company then her action would be under the death statute, and that under that statute she would be able to recover only actual damages; and they then assume, for the purposes of argument, that Mrs. Hauck was not debarred from suing the Houston Lighting & Power Company, and that it lay within her power to pursue the lighting and power company, and to be fully compensated for her actual damages, as provided by the death statute. They then contend that since she did not carry the suit to ■ judgment against that company, but compromised it and accepted $3,500, in cash and made a contract with reference to a fund of $4,000, which awaits the decision of this suit, and that since this settlement was made with full knowledge on the part of all defendants that appellants were claiming the right to be reimbursed for the amount of money paid out by them, they should be permitted to recover this fund in the bank to the extent of the amount paid by them. They further argue that if this money in the bank is adjudicated to Mrs. Hauck it will mean that the Houston Lighting & Power Company could not, under any hypothesis, be held to respond in damages to the insurance companies, or be required to reimburse them for the loss sustained; that it would mean that Mrs. Hauck, having compromised the suit, and having expressly recognized the fact of the insurance companies’ demand for reimbursement, in the terms of her settlement, could nevertheless take all the money, with interest, and the insurance companies would have to stand a loss.

We think that appellants’ construction of what the effect of such holding would be is correct, but still we are of opinion that there is nothing express or by implication in the Texas act under consideration which gives to appellants the right to pursue the Houston Lighting & Power Company for causing the death of Otto Hauck, or that gives them the right to participate in the fund now held to await the decision of this suit. As to the contention of appellants that they are entitled to pursue the Houston Lighting & Power Company, or to participate in said fund held by the bank to await the outcome of this suit upon the principle of equitable subrogation, we have concluded that there is nothing in their contention. We have carefully read every authority that we have found in appellants’ brief, but we have been unable to find any that sustains their contention on this point, and, without discussing them, we must conclude that we see nothing in this case that invokes the principle of equitable subrogation, as contended for.

Appellants, as all other insurance companies permitted by the Workmen’s Compensation Act to do this character of business, presumably are fully compensated for the risks that they undertake in the way of premiums, etc., and if they were permit ted to have recourse against outsiders and reimburse themselves for all moneys that they may be compelled to pay out under their contracts of insurance, then it occurs to us that such insurance companies would be incurring no risks whatever in a great many cases of injury and death occurring daily, but, on the contrary, it would be an, almost unlimited field for litigation, because in every instance where such companies might think they could reimburse themselves by filing suit against some outsider they would be apt to do so, and the Workmen’s Compensation Act, instead of being only a quick and certain remedy and relief to workmen who are injured in the course of their employment and to their dependents, as it was supposed to be, and to cut off long drawn out and uncertain litigation because of such injuries, would be a most prolific field of litigation, so far as the insurance companies in pursuing outsiders would be concerned.

We think that there was no error committed by the trial court in sustaining the general demurrers interposed in this case, and appellants’ assignment of error on that point is overruled, and the judgment of the trial court is in all things affirmed.
      (g^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    AMERICAN SURETY CO. et al. v. SHEERIN.
    (No. 7947.)
    (Court of Civil Appeals of Texas. Dallas.
    April 13, 1918.
    Rehearing Denied June 8, 1918.)
    1. Brokers @=371 — COMMISSIONS—PERFORMANCE O'F CONTRACT.
    Where plaintiff insurance broker procured for defendant surety company application for a bond for two years on condition that 20 peí-cent. of the premiums should be paid to him and 5 per cent, to defendant’s local agent, and defendant agreed to such conditions and issued the bond, plaintiff was entitled to commission on the second year’s premium as well as on the first, regardless of any agreement made by defendant with one appointed, before the second premium was paid, to take the place of its local agent.
    2. Insubance @=384(2) — Agents—Contract fob Commission — Construction — “Ac-obije.”
    Under a contract providing that all interest of surety company’s agent in any premium to accrue on business secured should cease on termination of the contract, the unpaid portion of a premium on a bond executed and in force at the time the contract was terminated was not a premium which might “accrue” on the same bond in the future, “accrue” meaning to grow, increase, augment, additional.
    [Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Accrue.]
    3. Insubance @=384(2) — Agent’s Compensation.
    Where a continuation certificate was unnecessary to continue liability of defendant surety company on a bond, its local agents would be entitled to no commission for writing to and procuring from defendant’s state agent such certificate, and in turn delivering it to the principal on the bond.
    4. Insurance @=384(2) — Agent’s C’ompensation.
    Under contract by which a surety company agreed, among other things, to pay to those who succeeded its local agent 20 per cent, on all renewal business effected, successors would not be entitled to commissions on a bond procured by an insurance broker during employment of local agent, although premium therefor had not been paid.
    5. Insurance @=384(1) — Agent’s Commission —Consideration.
    Even if a surety company’s general agent unequivocally promised to pay commissions to local agents, where the company was bound to another, it would not be bound by the promise, since it would be without consideration.
    6. Judgment @=3310 — Correction as to Parties — Directed Verdict.
    Where the court was authorized to direct a verdict, and in so doing directed verdict against one not served with citation, it was equally authorized to set it aside as to such person and enter judgment accordingly, directed verdicts being in effect judgments of the court which' may be corrected.
    Error from Dallas County Court; T. A. Work, Judge.
    Action by G. G. Sheerin against American Surety Company and another. Directed verdict for plaintiff, and defendants bring error.
    Judgment affirmed.
    Adams & Stennis and Thompson, Knight, Baker & Harris, all of Dallas, for appellants. Crane & Crane and J. P. Evans, Jr., all of Dallas, for appellee.
   RASBURY, J.

G. G. Sheerin sued American Surety Company in the court below for $500. Sheerin alleged that he was an insurance broker, and as such induced the Security National Bank of Dallas, which desired to make bond in the sum, of $500,000, for a period of two years, for the purpose of indemnifying D. E. Waggoner, treasurer of the city of Dallas,'- and the sureties on his bond to the city of Dallas, against the failure of the Security National Bank to pay over all sums of money, etc., deposited with it by Waggoner, to permit the American Surety Company to execute said bond as surety for the bank, and for which the American Surety Company charged a fee or premium of $5,000, and for which service American Surety Company agreed to pay Sheerin 20 per cent, of the premium, or $1,000, of which $500 had been paid, and the remaining $500 due, but payment of which American Surety Company had refused, although they had collected from the Security National Bank. The American Surety Company answered that Blanton, Thomas & Co., who subsequent to the transaction became their local agents, claimed the remaining $500 was due them, and had retained from moneys due the American Surety Company that amount; and that, while it was ready and willing to pay the money to whomsoever was entitled thereto, it' desired to avoid a double liability, and prayed accordingly that Blanton, Thomas & Co. be made parties to the suit. Citation was issued and served upon Blanton, Thomas & Co., who answered, in substance, that the bond covered a period of one year only, and was secured by Lucy, the state agent of American Surety Company, who permitted Matthews, the local agent at Dallas, to issue the bond and collect his commission upon the premium of $2,500, and that after the bond was executed, and before the year which it covered expired, they liecame the local agents of American Surety Company, and thereafter when the bond expired the same was through their efforts renewed and extended to cover an additional year, and by reason whereof they were, under their contract with the American Surety Company, entitled to the commission. Blanton, Thomas & Co. further alleged that, after they became local agents for the American Surety Company, its state agent acknowledged that they were entitled to the commission, and led them to believe such commission would be paid to them, and promised and obligated the • American Surety Company to pay it. There was trial before jury, and upon conclusion of the testimony the jury were peremptorily instructed to return verdict for Sheerin against the American Surety Company for $500 and interest, and for the American Surety Company against Blanton, Thomas & Co., and J. IV. Blanton, John M. Thomas, George M. Eas-ley, and L. P. Boulware, the individual members thereof, for similar sum.

The facts of controlling importance deducible from the testimony are, in substance, these: D. E. Waggoner was elected treasurer of the city of Dallas for a period of two years from November 2,1914. To secure the municipality in the performance of his duties as treasurer, he executed bond signed by individuals. He and his sureties selected as depository for the city’s funds, securities, bonds, etc., coming into his possession as treasurer, the Security National Bank. The bank was 'required to and did, on November 10, 1914, execute in favor of Waggoner and-the sureties upon his bond to the city of Dallas a bond with the American Surety Company as surety, reciting that Waggoner had been elected city treasurer for two years from November 2, 1914, and as such treasurer had given bond to the city in the sum of $1,000,000, with sureties, reciting them, and that Wag-goner and the sureties had selected the Security National Bank of Dallas as depository for all moneys, bonds, and securities of the city of Dallas, and that said bank desired to secure said Waggoner and his sureties against any loss on its part of any such money, bonds, and securities so deposited with it to the extent of $500,000, and that the execution of the bond evidenced the obligation of American Surety Company to pay said sum to Wag-goner and his said sureties in case of the failure of the Security National Bank, during the time Waggoner was city treasurer, to pay over on legal order all moneys deposited with it by Waggoner as treasurer, and to properly account for all bonds and other securities similarly deposited, etc. Prior to and at the time this bond was executed Sheerin was an insurance broker in the city of Dallas. Similarly, American Surety Company had a local agency in the city of Dallas in charge of D. J. Matthews. Sheerin, at request of Wag-goner, secured from Security National Bank an application to American Surety Company for it to make the required bond. The application stipulated that the bond was for 24 months. At request of Edwin Hobby, cashier of the bank, who objected to paying the full two years’ premium in advance, it was provided in the application that one-half thereof should be paid during the first year of the bond and one-lialf during the second year. The American Surety Company agreed to, and, as we have shown, did, make the bond, issuing it through its Dallas agency. The American Surety Company’s charge or premium for executing the bond was $5,000 for two years, upon which amount they agreed to pay Sheerin 20 per cent., or $1,000, and Matthews 5 per cent., or $250; it being the custom, as well, to pay brokers who secured the business, and local agents through whose office the.business passed, commissions so proportioned. In accordance with the arrangement, when the bond was executed' and delivered the American Surety Company paid Sheerin $500, being 20 per cent, of the premium collected by the company. When the second payment on the premium matured, Sheerin collected the amount from the Security National Bank in check payable to American Surety Company, and remitted same, with request that the company in turn remit his fee, which was not done because the commissions were claimed by Blanton, Thomas & Co. In that connection, Blanton, Thomas & Co., several months subsequent to the transactions detailed, succeeded Matthews as local agents of the American Surety Company. The agency agreement was in writing, and provided, among other things, that Blanton, Thomas & Co. should, on all original and renewal business effected, receive as commissions 20 per cent, on the premium paid to the company. There was also an agreement between the parties that Blanton, Thomas & Co. should be paid 5 per cent, of all premiums collected from business accepted by the company from brokers with whom the company at that time had relations. When Blanton, Thomas & Co. took over the American Company agency they had never seen and had no knowledge of the terms of the bond executed in favor of Waggoner and his sureties, and assumed that it was for one year and subject to renewal. For the purpose of securing a renewal of same, they wrote Ducy, state agent of American Surety Company, in respect thereto, and was furnished by the state agent with what is termed a “continuation certificate,” signed by the company, to be attached to the bond, and which, in substance, provides that, in consideration of the payment of the premium for the second year, the bond is continued for another year on the same terms. The certificate was delivered to the Security National Bank, with the statement that the premium would be collected in due course. Dater, when an effort was made to collect the premium, they were informed that it had been paid to Shee-rin. Subsequently, Blanton, Tilomas & Oo. retained money belonging to American Surety Company sufficient to cover 20 per cent, of tlie premium collected on the bond for the second year, which was the amount of commissions to be paid them under their agency contract for all business effected by them originally or by renewal. Lucy, state agent for American Surety Company, advised Blanton, Thomas & Co. that the premium on the Security National Bank bond was business belonging to their agency, and that they were entitled to the commission which would arise on the second year payment, and agreed to pay the commission to Blanton, Thomas & Co.

The controversy being three sided, counsel for Blanton, Thomas & Co., plaintiffs in error, have been compelled, in order to technically preserve their issues against all parties, to repeat certain assignments, but, due to the conclusions we have reached, it will only be necessary for US to discuss the issues as such.

In natural order, this brings us to a consideration of the court’s action in directing verdict for Sheerin, which is assigned as error. In determining that issue we are concerned only with the facts relating to the securing of the bond originally, and upon which Sheerin’s rights rest, since at that period Blanton, Thomas & Co. were not the agents of the American Surety Company, and in no manner participated in the transaction, and since Sheerin can in no manner be bound by subsequent acts of parties claiming adversely to him, in which he did not participate' and to which he did not consent. The net result of the original transaction was, as shown by the evidence, that Sheerin, the broker, secured from the Security National Bank its application to the American Surety Company to make the required bond for a period of two years, on condition that the 25 per cent, commission paid by the American Surety Company in such cases to its agents, 20 per cent, should be paid to Sheerin, and on the further condition that the Security National Bank be permitted to pay the premium in two installments, one-half during the first year covered by the bond and one-half during the second year. The American Surety Company and its local agent agreed to the conditions, and the bond was issued through the local agency, ivas delivered to the bank, which, according to the arrangement, paid the one-half of the premium then due, and a year subsequently the other half. It is thus obvious that Sheerin had concluded every essential step .necessary to entitle him to his compensation under his arrangement with American Surety Company. The fact that the company extended credit to the bank did not reduce the period of the bond to any less term than two years, or lessen the liability of the bank to pay the premium -when due, or require any other act on the part of Sheerin in order to earn his commission. The transaction was completed and all parties bound. It is not uncommon for insurance companies to extend credit in payment of premiums, and when proven such extensions are held to be a waiver of policy provisions requiring actual payment in order to create liability. Had the bank failed to pay the premium when it matured, it may be that the American Surety Company would not have been bound to Sheerin; but since the bank did pay it, and since Sheerin secured the business, we see no reason why he is not entitled to the fruits of his labor.

Counsel for defendant in error argue, however, that since Sheerin’s commission was a portion of that allotted to Matthews, the local agent, at the time the bond was written, Sheerin’s right to the commission is no greater than the former’s, and that under Matthews’ contract he had no interest in the commission when the last installment was paid. ' Matthews ceased to be the agent of the American Surety Company about May 1, 1915. The second installment on the premium matured in the following November. Matthews’ contract provided that, “in the event of this agreement being terminated by any cause, all the interest of the agent in any future premium or premiums that may accrue on the business secured hereunder shall cease and determine at the date of such termination.” Obviously, the unpaid portion of the premium on the bond executed and in force was not a premium which might “accrue” on the same bond in the future. “Accrue” means to grow, increase, augment, additional. Hence the provision has reference to premiums, to accrue in the future as distinguished from those which have accrued, as we hold the premium in controversy did when the bond was written under the circumstances stated.

We next consider the contention of Blanton, Thomas & Oo. that they were entitled to an instructed verdict against American Surety Company, which the court refused, and which refusal Is assigned as error. If Blanton, Thomas & Oo. are entitled to recover from the American Surety Company at all, it is upon the evidence of Blanton that the American Surety Company independently agreed to pay them the commission, for Blanton, Thomas & Oo. can base no right to recover on the fact that they wrote to and secured from state agent, and in turn delivered to the bank, the continuation certificate. The certificate was not necessary to continue the liability of the American Surety Company on the bond, and was in fact executed under the belief that the bond was for one year only. Reverting then to the agreement of the American Surety Company to pay Blanton, Thomas & Co. the commission, we conclude the evidence fails ■to raise any issue in that respect, and that the court properly instructed verdict against Blanton, Thomas & Co. The evidence clearly discloses that Lucy, the state agent, was not making an independent promise to Blanton, Thomas & Co. of tlie commission in any event, but only stating his construction of the controversy, and who in his opinion was entitled to the commission. Blanton’s testimony means no more than that Lucy was of opinion that the commissions on the unpaid premium,' with which Blanton had nothing originally to do under Lucy’s construction of the facts and the contract, belonged to Blanton, Thomas & Co., or that they were entitled to it, and that the company, because they were entitled to it, would pay it.

Even had the general agent unequivacally promised to pay it, the company would not be bound by such promise, if, under all the facts, it was bound to another, since the promise would be without consideration. We have held, and do hold, that under all the facts the American Surety Company was at all times bound to Sheerin for the commission, and hence never bound to Blanton, Thomas & Co.

It is also contended that the court erred in not directing verdict for Blanton, Thomas & Co. for $125, being the amount that Matthews was entitled to as commissions on the second premium installment, or at least erred in not submitting that issue to the jury. As we have already indicated, Blanton, Thomas & Co. did not succeed to any interest in the unpaid premium, either as against Matthews, as a result of his contract with American Surety Company, or against American Surety Company, as result of its contract with said company. Accordingly there was no error in refusing the charge.

Complaint is made of the exclusion of certain letters written by the American Surety Company’s general agent to Blanton. Thomas & Co. after they became local agents of the American Surety Company. One of these letters tends to show that, in the opinion of the general agent, the local agents, Blanton, Thomas & Co., are entitled to a commission on the second installment of the premium on the bank bond, and one the amount thereof. As indicated, there never was a time when Blanton, Thomas & Co. were entitled to any interest in the commissions to be paid upon the bank bond. That matter was concluded and the right of the parties vested and arose as matter of law before the letters were written, and long before Blanton, Thomas & Co. became the local agents, and the right of the parties is determinable, not by the opinions and agreements of adverse claimants subsequent thereto, but by the facts in existence at the time the matter accrued. That feature we have already discussed. There was no error in excluding the letters.

Complaint is made that the judgment does not conform to the verdict. The court directed verdict in favor of American Surety Company against Blanton, Thomas & Co. as a partnership, and against J. W. Blanton, John M. Thomas, Geo. M. Easley, and L. F. Boulware, the individual members thereof, personally. Judgment followed the verdict, save that it was in favor of Boulware on the recited ground that it appeared that he had not been served with citation. Since the verdict of the jury was instructed, we conclude that no province of the jury was invaded by the action of the court. If the court was authorized to direct verdict, and in so doing he directed verdict against one not served with citation, he was equally authorized to set it aside as to such person. Instructed verdicts are, in effect, judgments of the court. It is well settled that judgments may be so corrected. Frerich v. Hering, 147 S. W. 1164, and cases cited.

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

Affirmed.
      <g=aEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    PALM et al. v. NUNN.
    (No. 1360.)
    (Court of Civil Appeal of Texas. Amarillo.
    May 15, 1918.
    Rehearing Denied June 12, 1918.)
    1. Appeal and Error <®^719(6) — Fundamental Error — Direction of Verdict.
    The action of the tz'ial court in directing a verdict presents a question of fundamental error, which it is the duty of the Court of Civil Appeals to consider without any assignments.
    2. Bills and Notes <§s=>301 — Liability of Indorser — Rights.
    Where a note was given, secured by a chattel mortgage, and the payee did not record the mortgage, and indorsed the note to plaintiff, and assigned the chattel mortgage to him, the plaintiff’s duty to record the mortgage could not be inferred from his mere acceptance of the note and unrecorded mortgage, unless facts were shown making it inequitable for him to deny that such was his duty, and the plaintiff could recover against the original payee as an in-dorser.
    3. Appeal and Error c^=>1099(3) — Subsequent Appeal — Law oe the Case — Severa-ble Issues.
    Where, in an action by the indorsee of a note who was assignee of an unrecorded chattel mortgage to secure the note against the payee of the note as indorser, a finding of fact was made that mortgaged property was in the hands of bona fide purchaser, which finding, not complained of, would not be fundamental error, action of appellate court in affirming that part of the judgment, having reversed on the issue of liability of indorsor, could not be assailed on appeal from judgment rendered on retrial; rule 62a (149 S. W. x) permitting affirmance and reversal as to severable issues.
    4. Bills and Notes <®^523 — Recourse on Security — Estoppel. .
    In an action against payee of note as in-dorser by the indorsee and the assignee of an unrecorded chattel mortgage on cattle, executed to secure it, held relative to release of indorser that plaintiff was not estopped under the evidence from denying that it was his duty to record mortgage.
    Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.
    Action by G. J. Nunn against E. P. and. Albert Palm. Judgment for plaintiff upon a directed verdict, and defendants appeal.
    Affirmed.
    Grudgington & Works, of Amarillo, for appellants. S. E. Fish and Kimbrough, Underwood & Jackson, all of Amarillo, for ap-pellee.
   HALL, J.

On the former appeal of this case, as reported in 194 S. W. 406, it was styled Nunn v. Smith. After the introduction of the evidence upon this trial the court directed a verdict in favor of Nunn.

Under numerous assignments of error the appellants challenge the court’s action, and appellee has filed objections to the consideration of many of these assignments. This court has heretofore held, and notwithstanding the fact that several other Courts of Civil Appeals are not in accord with us upon the proposition, we still hold that the action of the trial court, in directing a verdict, presents a question of fundamental error, which it is our duty to consider without any assignments. In accordance with this holding we have carefully reviewed the record, and have concluded that the trial court was justified in giving the peremptory instruction. On the former appeal we held that by transfer of the note and mortgage, under the conditions shown, appellants impliedly consented to the risk involved in a failure to forthwith record the mortgage. We may infer from the facts in the record before us that the mortgage was in the hands of appellants for about ten days before it was delivered to appellee Nunn. ‘ On the former appeal Judge Boyce, speaking for the court, said:

“If appellant Nunn assumed the duty of recording the mortgage, of course his failure to do so would operate as a release; but this assumption of duty cannot be inferred from the mere acceptance of the note and unrecorded chattel mortgage, and the duty to record the mortgage would not exist, unless such facts were shown as would make it inequitable for him to deny that such was his duty,” etc.

We find no facts in this record which would estop him from denying that it was his duty to register the mortgage. The mortgage had not been recorded when appellants indorsed the note. If in their opinion it was necessary to record it in order that they might be protected, they should have filed it with the comity clerk, or have required ap-pellee, by some express agreement, to subsequently do so. No additional facts were shown in this trial bearing upon that issue, and under the former opinion of this court there was nothing to require the trial judge to submit it.

Another question presented by appellants’ brief which we consider is the criticism of that portion of the former opinion affirming the judgment in so ’ far as it decrees that Louis Hanson purchased the mortgaged- property without notice. The issue was clearly drawn in the first trial; there was an express finding of the jury upon that issue against appellants’ contention, and upon the former appeal no complaint was made by appellants of such finding. As provided by rule 62a (149 S. W., p. x), “If it appears to the court that the error affects a part only of the matter in controversy j and the issues are severable, the judgment shall only be reversed, and a new trial ordered as to that part affected by such error,” the judgment of the trial court rendered on the first appeal' having released Hanson from all liability, did not present fundamental error, 'and under the rule quoted and the well-understood practice of this court, no other course was left for us than the affirmance of that part of the judgment. The trial court, therefore, would not have been warranted in submitting the issue of Hanson’s liability to tlie jury upon the second trial.

Upon the issue of estoppel, in our opinion there is nothing in the letter of August 28, 1914, written by appellee’s attorneys, which could have been taken by appellants as either a direction or license not to resort to all means to protect themselves from liability upon the note, and upon the trial no effort was made by appellants to prove what, if anything, they would have done but for the letter; in fact, the record is replete with testimony showing that appellants recognized their liability, notwithstanding the fact that the mortgage had not been duly recorded and the mortgaged property had been disposed of by Smith. While appellant testified on direct examination that the note and chattel mortgage in question were executed and accepted by them in accordance with their prior agreement, made with appellee to take such note and mortgage as part of the consideration for the transfer of the land, they did not testify that appellee agreed to record the mortgage or assume any responsibility by reason of the fact that it had not been recorded. Even though the court had submitted to the jury the issue as to whether or not the note and mortgage had been arranged to the satisfaction of appellee and taken and accepted by him as part of the consideration, and although a finding favorable to appellants upon such issue had been returned by the jury, still appellants would not be relieved as indorsers under the record before us.

Finding no reversible error, the judgment is affirmed.

HUFF, C. J., not sitting; being absent in Austin on committee of judges, passing on writs of error for Supreme Court.
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author: FLY, C. J.

text:
    PONDER et al. v. CRENWELGE et al.
    (No. 6038.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 15, 1918.
    On Motion for Rehearing, June 12, 1918.)
    1. Judgment <@=3256(5) — Yeediot to Support.
    Where only the receiver of a railroad was sued, a verdict against the company alone will not support a judgment against the receiver and the company.
    2. Corporations <@=3559 (6) — Receivees.
    As a general rule, a corporation is not liable for any acts of a receiver, who has full'possession of its property and entire charge of its affairs.
    3. Caeeiers <@=376 — Injuey to Shipment — Parties Entitled to Recoves.
    Consignee and another who did not buy an interest in the cattle until they reached their destination would have no right to recover ¿gainst the carriers for cattle killed and injured in transit; the owner not having sold them an interest in the chose in action.
    4. Trial <@=>335 — Apportionment oe Damages Between Carriers.
    Where the contract of the initial carrier was to transport to a certain place, and there deliver to the connecting carrier, and where there was no partnership between the carriers or ratification of the original contract, evidence which wholly failed to show damages which occurred on each line "afforded no basis for an apportionment of damages by the jury.
    5. Carriers <@=>174 — Ratification op Contract op Initial' Carrier.
    Receiving from initial carrier goods for transportation was- not a ratification of the initial carrier’s contract, but merely a compliance with Rev. St. 1911, arts. 6608-6612, requiring connecting carrier to receive and transport all freight delivered to it by any other line.
    Appeal' from District Court, Gillespie County.
    Suit by F. O. Crenwelge and others against A. R. Ponder, receiver, and others. Judgment for plaintiff, and certain defendants appeal.
    Affirmed in part, and reversed and remanded’ in part.
    Mason Williams, of San Antonio, and E. H. Crenshaw, Jr., of Kingsville, for appellants. Martin & McDonald, of Austin, Martin & Petsch, of Fredericksburg, and T. M. West, of San Antonio, for appellees.
   FLY, C. J.

F. O. Crenwelge, Dave Reed, and J. C. Campbell instituted this suit against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, Duval West, and A. R. Ponder, receive ers of the San Antonio, Uvalde & Gulf Railway Company, the San Antonio & Aransas Pass Railway Company, M. H. Trice, receiver of the San Antonio, Fredericksburg & Northern Railway Company, and the St. Louis, Brownsville & Mexico Railway Company, to recover damages to 259 head of cattle which were delivered to Frank Andrews, receiver at Armstrong, Tex., to be transported to Fredericksburg, Tex. It was alleged that after the shipment was made the initial carrier had been released from the authority of the receiver, and had assumed all the debts'of such receiver. The receiver did not answer and under an agreement made by counsel was dismissed from the suit. The cause was tried by jury resulting in a verdict and judgment in favor of appellees against the St. Louis, Brownsville & Mexico Railway Company for $859.66, against the San Antonio, Uvalde & Gulf Railway Company for $859.66, against the San Antonio & Aransas Pass Railway' Company for $122.65, and in favor of the San Antonio, Fredericksburg & Northern Railway Company. Duval West, having been relieved from the receivership of the railway company for which he had formerly acted, was dismissed from the suit, and judgment was rendered against A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railway Company, and also against the company.

The San Antonio, Uvalde & Gulf Railway Company was not a party to the suit, only its receiver being sued, but the verdict was against the company. The receiver being a party to the suit, and all the facts showing that he was in charge of the company, and that he answered in the case, it might be presumed that it was the intention of the jury to find against the receiver; however, they did not so find, but against the company alone. It may have been merely an irregularity, but it should have been corrected before the verdict was received. The judgment did not follow the verdict, but was rendered against both the receiver and the company which was not a party to the suit. The authorities cited by appellees do not apply to such a case as this, but were rendered in eases where the verdicts abbreviated the names of railway companies, designating them by the initial letters of the names. We have seen no case, where a judgment was sustained that was based on a verdict against one not a party to a suit. The receiver was not named in the verdict, and the railroad company was not named as a party in the pleadings. The general rule is that the corporation is not liable either in a civil suit or criminal proceeding for any acts of the receiver who has full possession of its property and entire charge of its affairs. Elliott, Railroads (2d Ed.) § 581, and authorities in footnote. As said in Railway v. Dorough, 72 Tex. 108, 10 S. W. 711:

“It is settled law that the receiver of a railroad company is the representative of the court, and not of the company, and that the company is not liable for his acts or those of Ms .employes.”

The evidence showed that the cattle when shipped belonged to J. C. Campbell, and were consigned to Otto Crenwelge, one of the plaintiffs. Crenwelge did not buy an interest in the cattle until they reached their destination, and after that Dave Reed bought an interest in the cattle. Campbell, Crenwelge, and Reed brought the suit, and there was a verdict in favor of all of them upon which a joint judgment was rendered. There is no testimony showing that Campbell sold an interest in the chose in action to his co-plaintiffs. It is clear that neither Reed nor Crenwelge showed any right to recover damages for cattle killed and injured before they had any interest in them, and upon what theory they recovered is not disclosed by the record. If any one had the right to recover it was Campbell alone who owned the cattle when the damage occurred and who did not sell any interest in the damages to Crenwelge or Reed. It is true that Crenwelge in his testimony was in conflict with Campbell in that he claimed to have an interest in the cattle before they reached Fredericksburg. His testimony, however, showed that he did not have any interest in the cattle before they arrived in Fredericksburg, because all his claim to an interest was shown to rest on an agreement to buy the cattle if they were a^represented by Campbell when they reached Fredericksburg. Reed bought from Crenwelge.

The written contract between Campbell and the initial carrier was to transport the cattle from Armstrong to Oden and there deliver them to the San Antonio & Aransas Pass Railway Company, and they were so delivered. There was some evidence of rough handling, but no attempt was made to separate the injuries received on the line of the initial carrier from these inflicted on the other lines, and there was no basis whatever for the verdict rendered against the initial or any connecting line. There was no allegation of a partnership existing between the carriers. The evidence did not show that the original contract was ratified by the connecting carrier, because the original contract was made for the line of the initial carrier alone. Receiving the goods for transportation was not a ratification of the initial carrier’s contract, but was merely a compliance with the statute which requires the connecting carrier to receive and transport all freights and passengers delivered to it by any other line. Articles 6608-6612, Rev. Stats. As said in Railway v. Baird, 75 Tex. 265, 12 S. W. 533:

“In the face of such legislation the evidence should show something more than that a through shipment was made, which would require the freight to pass over several lines of railway to its destination, that a price was fixed for the entire transportation and collected by the last carrier, before it ought to be held that there was a joint contract for transportation that would render each carrier liable for failure * * * on the part of other carriers in the connected lines.”

To the same effect is Railway v. Dwyer, 75 Tex. 572, 12 S. W. 1001, 7, D. R. A. 478, 16 Am. St. Rep. 920.

The initial carrier made a contract for itself alone and limited its liability to its own line, as it was authorized to do. McCarn v. Railway, 84 Tex. 352, 19 S. W. 547, 16 L. R. A. 39, 31 Am. St. Rep. 51; Railway v. Looney, 85 Tex. 165, 19 S. W. 1039, 16 L. R. A. 471, 34 Am. St. Rep. 787; Railway v. Short, 25 S. W. 142; Railway v. Wilbanks, 7 Tex. Civ. App. 495, 27 S. W. 305; Railway v. Gray, 45 Tex. Civ. App. 208, 99 S. W. 1126; Railway v. Groves, 48 Tex. Civ. App. 45, 106 S. W. 417. That each line was only liable for the damages that arose on its line was recognized, but the evidence totally failed to show the damages that occurred on each line, and there was no basis whatever for the apportionment made of the damages by the jury. The assignments attacking the charge are overruled.

There was an agreement signed by the attorneys of plaintiffs and all the railway companies, to the effect that the receiver of the St. Louis, Brownsville & Mexico Railway Company had been discharged, and that the railway company had taken control of its property and assumed the debts and liabilities of the receiver. That agreement not only appears in the transcript of the record, but is made a part of the judgment, and appears in the statement of facts. Of course there is no possible basis for the contention found in the brief of the railway in question that the agreement was not signed by its counsel. The statement of facts gives the substance of the agreement, and states that it was made between counsel, and the statement of facts, of which it is a part, was signed by counsel for the St. Louis, Brownsville & Mexico Railway Company. While it appears that the agreement was inserted in the statement of facts after it was made up, there is nothing to indicate that it was inserted after the statement was signed by the attorneys. If it was, however, the record clearly shows that the agreement was made by the attorney who represented the St. Louis, Brownsville & Mexico Railway Company in the trial court, and, in justice to that attorney, we deem it proper to state that he did not brief the case in this court, but it was briefed by another attorney who no doubt overlooked the agreement, copied into the transcript, and the recital in the judgment.

The San Antonio & Aransas Pass Railway Company did not appeal, and no complaint has been made as to the verdict in favor of the San Antonio, Fredericksburg & Northern Railway Company, and as to those two companies -the judgment will be affirmed; but as to the St. Louis, Brownsville & Mexico Railway Company and the San Antonio, Uvalde & Gulf Railway Company, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

There are two judgments copied into the record; in the first judgment was rendered against the San Antonio, • Uvalde & Gulf Railway Company and the receiver. There was no verdict against the receiver. The second judgment, which is the only one that should have been placed in the record, upon suggestion of appellees, was corrected so as to strike out the name of the railway company last named as well as the name of the San Antonio, Fredericksburg & Northern Railway Company and the words “for which they have their execution.’’ As corrected, the judgment was against the St. -Louis, Brownsville & Mexico Railway Company for the sum of $859.66, against A. R. Ponder, receiver, for $859.66, and against the San Antonio & Aransas Pass Railway Company for $122.65, and in favor of the receiver of the San Antonio, Fredericksburg & Northern Railway Company. It was stated in our opinion that the judgment was against the San Antonio, Uvalde & Gulf Railway Company, as appears from one of the judgments, hut that was omitted in the second or corrected judgment and judgment rendered against Ponder, against whom no verdict was returned. This is an immaterial matter to correct, and does not affect the judgment of this court, except the reversal is as to Ponder, receiver, and not as to his railroad, which was not a party to the suit.

Our judgment will be corrected so as to affirm as to the San Antonio & Aransas Pass Railway Company and the receiver of the San Antonio, Fredericksburg & Northern Railway Company, and so as to reverse as to the St. Louis, Brownsville & Mexico Railway Company and A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railway Company. With the exceptions of making the corrections indicated, the motion for rehearing is overruled.
      <g=3For other case's see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    LONG, Sheriff, et al. v. KNOTT et ux.
    (No. 7975.)
    (Court of Civil Appeals of Texas. Dallas.
    May 11, 1918.
    Rehearing Denied June 15, 1918.)
    Injunction —Return or Writ — 'Venue — Statute.
    Rev. St. 1911, art. 4653, providing that writs of injunction granted to stay proceedings in a suit or execution on a judgment shall be returnable to and tried in the court where the suit is pending, or such judgment is rendered, is especially applicable when the injunction proceedings restrain the sale of specific property described in an order of sale, the effect of ■which is to suspend the process and questions the validity of the process; but where the property of one who is not a party to the judgment lias been levied upon, he may claim that his rights shall be tried in the court of his domicile, nor is the statute and the rule applicable to injunctions seeking to restrain the sale of a homestead on the ground of exemption, and in such case the court of the county where the party seeking injunctive relief resides has jurisdiction to try the issue of homestead and to proceed in judgment.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by J. D. Knott and wife against Fred Long, Sheriff, of Hill County, Tex., and the Monnig Dry Goods Company, to enjoin the sale of land. Motion to dissolve injunction overruled, judgment for plaintiffs granting a perpetual injunction, and defendants appeal.
    Affirmed.
    Chas. T. Murphy, of Ft. Worth, for appellants. R. M. Vaughan and J. D. Abney, both of Hillsboro, for appellees.
   TALBOT, J.

This suit was brought by the appellees, J. D. Knott and his wife, Carrie Knott, against the appellants, Fred Long, sheriff of I-Iill county, Tex., and Monnig Dry Goods Company, a private corporation, with its principal office and place of business in Ft. Worth, Tarrant county, Tex., to enjoin the sale of 10 acres of land, which is described by metes and bounds, situated in said Hill county. The petition alleges and the evidence warrants the following conclusions of fact: Prior to the 20th day of October, 1914, and continuously up to the trial of this cause, the land involved constituted a part of appel-lees’ homestead. On the date stated appellee J. D. ICnott was indebted to O. W. Thompson, a resident of Hill county, Tex., in the sum of $711.30, and the said Thompson-being unwilling to carry said indebtedness longer, without some kind of security, induced the appel-lees to execute and deliver to his wife, Mrs. S. A. Thompson, the following instrument:

“Abbott, Texas, 10-20-14.
“Due S. A. Thompson, or bearer, the sum of ($711.36) seven hundred eleven and 36/100 dollars for value received at 8% interest from date, said amount to be paid on or before Oct. 20th, 1915, and upon payment of said amount of money, the said S. A. Thompson is to deed back a certain ten-acre tract of land to J. D. -Knott and wife, Carrie ICnott, and this paper to be null and void, otherwise to remain in full force and effect. J. D. ICnott.
“Carrie ICnott.”

To secure the indebtedness evidenced by the above instrument aiipellees were induced to and did agree with C. W. Thompson that they would give him a lien on 10 acres of land constituting a part of their homestead, and in pursuance of such agreement they executed and delivered to him an absolute deed in form conveying to him the said land, but with the distinct understanding that, although said deed was absolute in form, it was not to convey absolute title to Mrs. S. A. Thompson, but merely to create a lien upon-said land to secure the payment of the instrument above set out. Notwithstanding said deed was executed only as a mortgage on the tract of land therein described, C. W. Thompson, joined by his wife, S. A. Thompson, on the 30th day of April, 1916, without the knowledge or consent of appellees, executed and delivered a deed of trust to L. W. Peck, as trustee, conveying to him as such trustee the land described in the instrument which appellees had given the said Mrs. S. A. Thompson to secure Edward T. Murphy in the payment of a note for $530.81, dated April SO, 1916, payable October 1, 1916. This deed of trust was recorded in Hill county, Tex, Before the execution of this deed of trust C. W. Thompson had become indebted to the appellant herein, Monnig Dry Goods Company, in the sum of $530.81. This debt against C. W. Thompson was by the Monnig Dry Goods Company placed in the hands of said Murphy, who was a practicing attorney, for collection or adjustment, and said Murphy, representing said company and acting for and in its behalf, procured the execution of said note of $530.81, and said deed of trust, and the only consideration for their execution was the settlement of said preexisting indebtedness in favor of the Mon-nig Dry Goods Company. In this transaction the acts of Edward T. Murphy were for the use and benefit of said dry goods company, and were in fact the acts of said company. The method pursued in the transaction was as follows: Murphy arranged with C. W. Thompson to deliver to him his (Murphy’s) check for $530.81, payable to Monnig Dry Goods Company, and in consideration, of said check Thompson executed his note for said sum of $530.81, payable to Murphy or order, and to secure the payment of said note executed the deed of trust mentioned to L. W. Peck as trustee. The check for $530.81 was sent by Thompson to Monnig Dry Goods Company, and the note and deed of trust were delivered by him to Murphy. Soon after this Murphy indorsed without recourse and delivered said note to Monnig Dry Goods Company in consideration of the cancellation and surrender to him of said check of $530.81, whereupon the pre-existing indebtedness in favor of said company against Thompson was canceled and the said note of $530.S1 executed to Murphy was received and accepted in lieu thereof. Before the deed of trust was executed to L. W. Peck as trustee, C. W. Thompson informed Edward T. Murphy that the deed from Knott and wife to Mrs. S. A. Thompson for the 10 acres of land described in said deed of trust was executed only as a mortgage or deed of trust to secure Thompson in the payment of an indebtedness arhounting to $711.36, and that Thompson did not have any other title to said land, and that on the payment of said indebtedness said property was to be released or reconveyed to appellees Knott and wife. The Monnig Dry Goods Company did not pay to Edward T. Murphy anything of value for his in-dorsement and delivery to it of the note executed by Thompson. The Monnig Dry Goods Company sued C. W. Thompson, as the only defendant, on said note of $530.81 and the deed of trust given to secure the same in the district court of Tarrant county, and on the 2d day o-f February,. 1917, judgment was rendered in said cause in favor of said company as plaintiff and against the said Thompson for the amount than due thereon, which' was $454.88, with interest and costs of suit, together with a foreclosure of the deed of trust on the 10 acres of land therein described and in controversy in this suit. On the 9th day of March, 1917, an order of sale was issued on said judgment directed to the sheriff or any constable of Hill county, Tex., commanding a levy upon and sale of said land, and to apply the proceeds arising from such sale to the payment and satisfaction of said judgment, interest, and costs. This order of sale was received by the appellant Fred Dong, sheriff of Hill county, on the 12th day of March, 1917, and levied by him on said date upon the land in controversy. Neither of the appellees in the present suit were parties to the said suit of Monnig Dry Goods Company against C. W. Thompson in which the foreclosure upon said land was obtained, or had notice of the filing of said suit or the proceedings had therein until after the levy of the order of sale upon their land.

Upon the presentation of the appellees’ petition Hon. Horton B. Porter, judge of the Sixty-Sixth judicial district of Texas, on March 31, 1917, granted the writ of injunction as prayed for, returnable to the district court of Hill county, Tex., and on the 30th day of May, 1917, the appellant Monnig Dry Goods Company filed a motion to. dissolve said writ. The grounds of the motion are as. follows.

“(1) That this honorable court had no jurisdiction or venue to issue the writ of injunction aforesaid restraining the mandate of a sister district court for the reason that the statutes of the state of Texas, to wit, Revised Statutes, article 4653 (2996), of the state of Texas, provide: Writs of injunction granted to stay proceedings in a suit or execution on a judgment, shall be returnable to, and tried in the court where such suit is pending, or such judgment is rendered. * * *
“(2) That such requirements of such statute mentioned in paragraph 1 above are imperative, and that this court has no authority, jurisdiction or venue to have issued said writ of injunction as aforesaid.”

When the case was called for trial in the district court the motion' to dissolve was presented and overruled. The cause then proceeded to trial before the court without a jury and judgment rendered in favor of appellees perpetuating the injunction theretofore granted, and appellants perfected an appeal to this court.

There is but one assignment of error presented in the brief. This assignment complains of the action of the trial court in overruling appellants’ motion to dissolve the injunction, asserting as the basis of their complaint the statute which provides that writs of injunction to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending or such judgment was rendered.

This statute has been repeatedly construed by the higher courts of this state, and we have experienced but little difficulty in determining what we regard as the correct disposition to be made of this appeal. It is true, the general rule laid down by the statute is that a writ of injunction to stay an execution on a judgment must be made returnable to the court of the county where .the judgment was rendered; and this rule is especially applicable, it seems, .when the injunction proceedings restrain the sale of specific- property described in an order of sale, the effect of which is to suspend the process, and questions the validity and regularity of the process. Hendrick v. Cannon, 2 Tex. 259; Seligson & Co. v. Collins, 64 Tex. 314. But “where the property of a person, who is not a party to the judgment, has been levied upon, he may claim that his rights shall be tried in the court of his domicile.” Winnie v. Grayson, 3 Tex. 429; Cooper Groc. Co. v. Peter, 35 Tex. Civ. App. 49, 80 S. W. 108; Kruegel v. Rawlins, 121 S. W. 216. Nor are the statute and the rule applicable to injunctions seeking to restrain on the ground of exemption the sale of one’s homestead. In such a c-ase the district court of the county where the party seeking injunctive relief resides has jurisdiction to try the issue of homestead or not, and is not without power to proceed to judgment in the case. Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Seeligson v. Gifford, 46 Tex. Civ. App. 566, 103 S. W. 416. In the case at bar no attack was made on the validity of the judgment or order of sale enjoined, and the statute invoked by appellant did not apply, and the district court .was not without power to proceed to judgment, because the appellees were strangers to the foreclosure judgment upon which the order of sale enjoined was issued, and because the land levied upon by virtue of said, order of sale was claimed by appel-lees to be a part of their homestead, and, according to the undisputed evidence, was a part of their homestead. This disposes of the only question presented for decision, and as the district court correctly ruled upon that question, its judgment is in all things affirmed.

Affirmed.
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