text:
    TOM v. KLEPPER.
    (No. 420.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 7, 1915.
    Rehearing Denied Jan. 21, 1915.)
    Counties (§ 43) — Officers—Teem— Constitutional and Statutory Provisions — “Vacancy.”
    Const, art. 5, § IS, directs the division of each county in the four precincts, in each of which there shall be elected one county commissioner to hold office for two years, and until his successor is elected and qualified, which provision is re-enacted by Rev. St. 1911, art. 2236; and Const, art. 16, § 17, provides that all officers shall perform the duties of their office until their successors are duly qualified. Rev. St. 1911, art. 2240, provides that upon vacancy in the office of commissioner the county judge shall appoint a suitable person to serve until the next general election; section 3030 provides that on Monday following election the county commissioners’ court shall open the election returns and declare the results; and section 3032 requires the county judge to thereafter deliver a certificate' of election. Plaintiff was elected a county commissioner at a general election November 5, 1912, and duly qualified November 3, 1912. Held, that his term -expired on the Monday following an election November 3, 1914, and that on failure to elect a commissioner he was not entitled to hold over, but there was a “vacancy” in the office, so that defendant’s appointment and' qualification thereafter were not premature, and would not be enjoined.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 51; Dec. Dig. § 43.

    For other definitions, see Words and Phrases, First and Second Series, Vacancy.]
    Appeal from District Court, Martin County; S. J. Isaacks, Judge.
    Action for injunction by P. C. Tom against J. L. Klepper. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    S. W. Pratt, of Stanton, and Royall G. Smith, of Colorado, Tex., for appellant. Morrison & Morrison, of Big Springs,. for ap-pellee.

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

   WALTHALL, J.

This case is an appeal from the order of the district judge of the Seventieth judicial district of Texas, made in vacation, refusing ah application for a temporary writ of injunction.

Appellant, P. C. Tom, alleged in his petition filed on the 21st day of November, 1914, that at the general election held in Martin county, Tex., on the 5th day of November, 1912, he was duly elected county commissioner in commissioner’s precinct No. 2 in said county, and duly qualified as such officer on the 23d day of November', 1912, by giving bond and taking the oath of office as required by law, and at once entered upon the discharge of the duties of that office. Appellant alleged that under section 18, art. 5, of the Constitution of Texas, he was and still is the legal incumbent of said office, for the reason that, while the general biennial election was held in Martin county on November 3, 1914, there was a failure to hold any such election in and for said commissioner’s precinct No. 2, and that because of said failure there was no election of appellant’s successor to such office as required by law, and that he .is entitled to serve and act .as such commissioner for that precinct until such time as his successor is elected and qualified, and that he is the de jure commissioner until such time.

Appellant alleged that on November 12, 1914, the county judge of Martin county, holding that there was a vacancy in the office of county commissioner for said precinct, on account of tlie failure to elect a commissioner at the general election in November, 1914, undertook to and did appoint appellee, P. L. Klepper, to serve as such commissioner until the next general election; that under said appointment, appellee undertook to qualify by giving bond and taking the oath of office as required by law, and is thereby usurping the functions of said office and undertaking to prevent appellant from discharging the duties thereof. Appellant alleged the value of the office to be ?200 per annum. Appellee alleged that he was ready, willing, and able to discharge the duties of the office, that he was entitled to the office, and that an action at law would not afford him an adequate remedy, because practically six months will elapse before the next term of the district court for Martin county will be held, during which time he would be deprived of the honors of said office, as well as its emoluments. Appellant prayed for a writ of temporary injunction, enjoining, and restraining appellee from interfering with him in the discharge of the duties of the office, and from usurping said office and undertaking himself to discharge same, for citation, and that the injunction be made permanent on final hearing, for costs, and for such further relief as he may show himself entitled to. The petition was verified. The district judge, on the 18th day of November, 1914, in chambers, entered an order denying the application for the injunction, to which appellant excepted and gave notice of appeal to this court.

Appellant has briefed the questions which, under his view of the case, are presented by the refusal of the district judge to grant the injunction prayed for, and his first assignment of error is based on the refusal of the district judge to grant the injunction; appellant claiming to be the duly elected, qualified, and acting commissioner for the precinct, by reason of his election and qualification in 1912, and no successor in office having been- elected, he was entitled, under section 18, art. 5, of the Constitution of Texas, to hold the office, not only for two years, but until his successor shall have been elected and qualified.

Appellee’s counter proposition to appellant’s first assignment is to the effect that appellant’s petition, showing appellant’s election to the office in 1912, and his qualifying as such officer, entitled appellant to hold same for two years, and until his successor had qualified, and that a successor for him having been appointed and having qualified, at the expiration of the term for which appellant was so elected, and of the time to which he actually held permissively, to wit, November 12, 1914, after the general biennial election in 1914, there was no error in the judge’s refusal to grant the writ.

Section 18, art. 5, of the Constitution of this state, directs that each county shall be divided into four commissioners’ precincts, in each of which there shall be elected by the qualified voters thereof one county commissioner, “who shall hold his office for two years and until his successor shall be elected and qualified.” Article 2236, Revised Civil Statutes, 1911, is in the verbiage of the Constitution. Article 2240, same statutes, provides:

“In case of vacancy in the office of commissioner, the county judge shall appoint some suitable person living in the precinct where such vacancy occurs, to serve as commissioner for such precinct until the next general election.”

Article 16, § 17, Constitution of this state, provides that:

“All officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified.”

We are of the opinion that the district judge was not in error in refusing to grant the temporary writ of injunction. Appellant was elected to the office of county commissioner of his precinct at the general election on the 5th day of November, 1912, and qualified as such officer on the 23d day of November, 1912. There is no question but that he would be entitled to hold the office for two full years. On what day did his term of - two years begin? If appellant’s two years of service commenced on the day of his qualification (23d day of November, 1912), he had not served his full term of two years on the 12th day of November, 1914, when the county judge made the appointment of appellee. The petition does not state the day on which "appellee qualified as commissioner. The petition was verified on the 16th, and presented to the district judge on the 18th, day of November, 1914, and the petition alleges:

“That the defendant, J. E. Klepper, has undertaken to qualify by giving- his bond in the amount and conditioned as required by law, and taking an oath in the form required by law, and is usurping the functions* of said office, and undertaking to prevent this plaintiff from discharging the duties thereof, and to deprive this plaintiff of the fruits and emoluments of said office, and that he will continue to do so unless restrained by this court’s most gracious writ of injunction.”

In the case of State ex rel. Bovee v. Catlin, 84 Tex. 48, 19 S. W. 302, the Supreme Court said:

“There was no valid objection to making the appointment of his successor before the expiration of the term for which he was elected, for the election was made by the city council that would have made the appointment, had this been delayed until the expiration of two years after his qualification; and that respondent may not have been entitled to enter upon the discharge of the duties of the office until the expiration of his term in no manner affected the validity of the election” (i. e., the election of Catlin as city clerk by the city council).

The Supreme Court in that case, while not deciding the question as to the day on which Catlin could legally have entered upon his duties of city clerk, said that:

“It may be that the term for which he (Bovee) could legally hold ought to run from the day on which the election (of the city clerk) should have been made”

—which would have been in April, instead of July.

It will be seen from the case above quoted that the fact that the county judge, anticipating the termination of appellant’s term of office, if it did terminate, could legally make the appointment to fill the vacancy that would occur on the 23d day of November, if the full two years of service of appellant would espire on that day; but appellee would not have been entitled to enter upon the duties of the office until the 23d day of November, two years after appellant qualified. But if, as we believe the better rule to be, appellant’s two years of service espired immediately at the time when the county commissioners’ court are required to open the election returns and estimate the result of the election as to county officers, in Martin county (article 3030, Revised Civil Statutes 1911), and the county judge required to issue certificates of election to county and precinct officers (article 3032, Revised Civil Statutes 1911), as suggested in the quotation made from the State v. Catlin Case, neither the appointment of appellee by the county judge as commissioner nor the qualification of appellee as such was premature, and ap-pellee would not be usurping the office.

The only remaining question to be determined is: Was appellant entitled to hold over for another two years, or was there a vacancy in the office of county commissioner for precinct No. 2?

Our opinion is that there was a vacancy in the office of county commissioner for that precinct, within the meaning of article 2240, Revised Statutes, above quoted, at the expiration of appellant’s full two years’ service, by reason of the failure to elect a commissioner for that precinct at the general election in 1914. We think this view accords with the settled policy of our state Constitution restricting the duration of the terms of office, as provided in the articles of the Constitution and statute quoted. A holding beyond the two years would be by sufferance, rather than from any intrinsic title to the office. The question has frequently been the subject of judicial investigation, and has given occasion to disagreement of opinion in other jurisdictions. A review of the various holdings and the reasons given would be of little value. We are of the opinion that, while the very question presented, without some qualifying fact, has not been before our courts for decision, the courts in this state in several cases have established principles that fix the rule of construction and interpretation of the principle involved. In addition to the articles of the Constitution and statutes of this state, already re-, ferred to and quoted, we refer to the eases 'of Maddox v. York, 21 Tex. Civ. App. 622, 54 S. W. 25 (same case certified to Supreme Court on certificate of dissent and affirmed, 93 Tex. 275, 55 S. W. 1133); State ex rel. Bovee v. Catlin, 84 Tex. 48, 19 S. W. 302; Bickford v. Cocke, 54 Tex. 482; Robinson v. State ex rel. Eubank, 28 S. W. 566.

We are of the opinion that there was no error in the refusal of the district judge to grant the writ of injunction prayed for, and the order of the district judge refusing the injunction is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    NAVARRO v. GARCIA et al.
    (No. 5383.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.)
    1. Wills (§ 52) — Contest — Burden oe Proof.
    In a will contest, the burden is on the proponent to show that testatrix was of sound mind when she executed the will, as provided by Rev. St. 1911, art. 3271.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.]
    2. Wills (§ 52) — Testamentary Capacity-Presumption oe Sanity.
    There is no presumption in Texas of testamentary capacity on the part of a testator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.]
    3. Wills (§§ 55, 166) — Execution—Testamentary Capacity — Unnatural Will.
    That testatrix bequeathed her property to persons not related to her by blood or marriage, while evidence of undue influence or testamentary incapacity, is yet insufficient alone to justify an affirmative finding on either issue.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 137-158, 161, 421-437; Dec. Dig. §§ 55, 166.]
    4. Wills (§ 55) — Testamentary Capacity-Time.
    On an issue of testamentary capacity, testatrix’s state of mind when the will was executed is the test of sanity, and her state of mind at other times has no probative force, except as tending to show her state of mind at the execution of the will.
    [Ed. Note.- — For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.]
    Appeal from District Court, Duval County; W. B. Hopkins, Judge.
    Proceedings by S. O. Navarro for the probate of the will of Virginia G. De Caro, deceased, contested by Euuardo G. Garcia and another. From a judgment in the district court, on appeal from the county court, in favor of contestants, the proponent appeals.
    Reversed and remanded.
    F. Lotto, of San Diego, for appellant. G. C. Robinson, of Beeville, for appellees.

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

   FLY, C. J.

Mrs. Virginia G. De Caro died leaving a will, in which she left all of her property to Enriqueta P. Navarro, and appellant was appointed therein the executor. Appellant sought to probate the will, which was contested by appellees, one a brother and the other a half-brother of deceased. The will was probated in the county court, but on appeal to the district court probate of the will was denied.

The burden rested upon the proponent of the will to show that the testatrix was of sound mind at the time that she executed the will. Article S271, Rev. Stats. There is no such presumption of sanity in Texas, although there is in other states, in the case of a maker of a will, as in the case of the maker of deeds or other ordinary contracts. The formal burden of proof in trials on the probate of wills, whether in the county court or on appeal to the district court, is upon the executor or other person proposing the will for probate. Beazley v. Denson, 40 Tex. 416.

The owner of property has the absolute right to dispose of his property as he may desire, and the fact that the disposition of the property was not made to a blood relative, but to one not related by blood or marriage to the maker of the will, would not, standing alone, be sufficient to justify a refusal to probate the will. While the fact that the relatives were disinherited in favor of some one not related might be a circumstance, which, taken with others, might show unsoundness of mind ór undue' influence, yet, standing alone, it could not justify a verdict against the probate of the will. “Wills are not to be probated solely upon the ground that the disposition which a testator may make of his property seems to a court or jury a natural and proper disposition, nor are they to be refused probate because to the court or jury the disposition of the property may seem to be improper or unnatural.” Vance v. Upson, 66 Tex. 476, 1 S. W. 179.

The state of mind of a testator at the time of the execution of the will must be made the test of sanity, and the state of mind at other times can have no probative force, except as it may tend to show the state of mind of the testator at the time of execution of the will. By the proof introduced by appellant a prima facie case for probate of the will was made out, and unless that case was destroyed by the evidence introduced by the contestants, the will should have been probated.

The evidence is utterly insufficient to destroy the prima facie case made by appellant, and to establish the insanity of the testatrix at the time the will was executed. The testimony of the witnesses who were present when the will was executed was to the effect that the testatrix was perfectly sane at the time she executed the will, and that she was fully apprised of its contents. No delusions which could have affected testatrix and have induced the execution of the will were shown by the contestants. The testimony of the contestants was of such an indefinite character that, even when taken with the suspicious circumstances that the will was drawn by the husband of the beneficiary and that she was not related by blood or marriage to the testatrix, did not justify the verdict. The testatrix was treated by a doctor, it was stated, for disease of the mind, and yet he did not testify. The testimony is too loose and unsatisfactory to support a judgment. Every page of the statement of facts shows that there was no development of the proof; the statement of facts indicating that even the will was not introduced in evidence.

A judgment based on such testimony as was produced in this case will not be permitted to stand. The judgment will be reversed, and the cause remanded to the district court for a proper trial.


author: HODGES, J.

text:
    CRAWFORD v. CRAWFORD.
    (No. 1373.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 17, 1914.)
    Divorce (§ 187) — Appeal—Reveesal.
    The appellate court will reverse and annul a judgment of divorce, when, after appeal is perfected and the case is submitted to it, it is furnished with evidence that the parties have adjusted their troubles and become reunited, and that plaintiff is not disposed to further prosecute the suit.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 576; Dec.-Dig. § 187.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Suit by A. M. Crawford against T. T. Crawford. Judgment for plaintiff, and defendant appeals.
    Reversed.
    See, also, 163 S. W. 115.
    H. N. Nelson, of Carthage, for appellant. Brooke & Woolworth, of Carthage, for ap-pellee.

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

   HODGES, J.

This is a suit for divorce, originally prosecuted by the wife against the husband. The husband appealed from the judgment. Since the appeal was perfected and the case submitted, this court has been furnished with evidence that the parties have adjusted their domestic troubles and have become reunited, and that there is no further disposition on the part of the appellee to prosecute the suit.

The judgment will therefore be reversed, and judgment here rendered, annulling the decree of the court below and denying the divorce. The costs of this appeal, however, will be adjudged against the appellant.


author: LEVY, J.

text:
    BARROW v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 1137.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 10, 1914.)
    1. Appeal and Error (§ 1170) — Reversible Error — Repetition op Csarge — Rule op Court.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding reversal on the ground of error of law in the trial, unless the appellate court believes that it was such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, or prevented the appellant from making a proper presentation to the appellate court, the giving of defendant’s special charges, which were repetitions of the general charge and alleged to have emphasized the defenses of assumed risk and contributory negligence, was not reversible error.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    2. Appeal and Error (§ 1170) — Reversible ■Error — Charges—Rule op Court.
    Under such rule, a charge authorizing a verdict for defendant on a finding that the condition of the footboard and hose was not due to defendant’s negligence in failing to inspect and repair them, in view of the alleged negligence in allowing them to become and remain out of repair, was not reversible error, since the jury might understand that they were to base their finding on allowing them to become and remain out of repair, and not on defendant’s failure to furnish in the first instance reasonably safe instrumentalities.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from District Court, Smith. County; R. W. Simpson, Judge.
    Action by George S. Barrow against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    This is an action for damages for alleged injuries occasioned through negligence. Besides denial of negligence, the appellee pleaded contributory negligence and assumed risk. Trial was had to a jury, and it resulted in a verdict for the appellee company.
    Appellant was in the service of appellee as head brakeman of a freight train. On the arrival of the train at the terminal station of Tyler, it became necessary to store certain cars in the train on the storage track; and in order to do this the locomotive of the train pulled north on the track, the switch being opened, where the cars were to be stored. The cars, being on the storage track, were uncoupled from the engine, and the engine backed south bver the switch on the main track for the purpose of taking it to the roundhouse. In accordance with instructions from the conductor, the appellant boarded the engine to notify the engineer that the work was done and the engine could be taken to the roundhouse. After repeating the message to the engineer, the appellant attempted to descend, while the engine was moving, from the rear of the engine tender, in order to take a position upon the rear footboard to keep a lookout while the engine was backing in the yards. In attempting to place his right foot on the foot-board of the tender, appellant’s foot slipped off the board; and grasping, as he was in the act of falling, a rod extending along the rear end of the tender, appellant held in this position until his hold was broken loose. There was evidence on the part of plaintiff going to show that there were defects in the footboard, in that it was deflected and slanting from its natural position and proper angle, and was wet and slippery by reason of a leaky condition of the water hose on the tank. There was sufficient evidence, though conflicting, to sustain the pleas of contributory negligence and assumed risk.
    Lasseter & Mcllwaine and N. A. Gentry, all of Tyler, for appellant. Marsh & Mcllwaine, of Tyler, and D. Upthegrove and E. B. Perkins, both of Dallas, for appellee.

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

   LEVY, J.

(after stating the facts as above). [1] The first and second assignments of error are directed to special charges given to the jury at the request of appellee in respect to assumed risk and contributory negligence. The objection is that the special charges are repetitions of the general charge upon those subjects, and the effect is to emphasize the defense. It is not believed that the giving of the charges was such error as to require a reversal of this case. Rule 62a (149 S. W. x).

The special charge complained of in the third assignment of error is not, it is thought, affirmatively erroneous.

The two paragraphs of the court’s charge complained of in the fourth and fifth assignments of error are not, in view of the grounds relied on by appellant for recovery, affirmatively erroneous. The portion of the charge complained of authorized a verdict for the defendant upon the finding of the jury that the condition of the footboard and the hose was not occasioned by the negligence of the company in failing to inspect and repair the footboard and hose, one or both. One of the two distinct grounds of alleged negligence was that defendant “allowed said hose to- become and remain out of repair,” and “in allowing said foot or running board to get in bad repair as aforesaid.” The jury might reasonably understand from the language of the instruction that the court was directing them to measure their finding in respect only to the particular ground of allowing the two instrumentalities to become and remain out of repair, and not “to failure to furnish,” in the first instance, “reasonably safe instrumentalities.” It is concluded that the objection does not justify a reversal of this case. Rule 62a.

Judgment affirmed.


author: LEW, J.

text:
    DENISON et al. v. BROWN et al.
    (No. 1380.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 14, 1915.
    Rehearing Denied Jan. 21, 1915.)
    1. Trial (§ 356) — Special Verdicts — Answer to Interrogatory.
    Where the jury disagreed as to one special question, although answering another question which in different terms submitted the same matter, the question answered will not support a judgment, for evidently the jury did not understand one question.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 84.9-854; Dec. Dig. § 356.]
    2. Bills and Notes (§ 373) — Validity.
    A note obtained by false and fraudulent representations is valid in the hands of an innocent purchaser for value without notice.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.]
    Appeal from District Court, Fannin County ; Ben H. Denton, Judge.
    Action by F. R. Denison and others against John L. Brown and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded as to the named defendant.
    Cunningham & McMahon, of Bonham, for appellants. J. M. Baldwin, of Honey Grove, and Thos. P. Steger, of Bonham, for appel-lees.

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

   LEW, J.

The suit is to cancel two notes, upon the ground of false and fraudulent representations inducing the purchase of a half interest in a garage. Special issues were submitted, to the jury. According to a bill of exception, upon which error is predicated by appellant, the jury, after retiring to consider their verdict, came into court, and the foreman made the statement to the court that they had agreed upon an answer to all the questions submitted to them hut one, and that they could not agree upon the finding to be made in respect to that one question. The court thereupon, it appears, looked over the answers as written down by the jury, and directed the foreman to sign the verdict as it was answered, which he did. After having the clerk to read aloud the verdict as signed, the court then asked the jury if that was their verdict; and, all of them answering that it was, the court received the verdict and discharged the jury. It appears from the record that there was disagreement, in proportional numbers, between the jurors as to the answer to be made to the question submitted and unanswered. The question asked, and which the jury failed through disagreement to answer, was:

“No. 3. Would plaintiff F. R. Denison have made the trade in question, and would the notes mentioned in the pleadings have been executed, if the representations set out in paragraph 3 of the plaintiff’s original petition had not been made?”

Doubtless the court was of the opinion that the previous question, No. 2, which had been affirmatively answered, covered the same legal point of fact as the third question, and that, because the third question was in effect a repetition of the second question, it was unnecessary for the jury to answer the third question. Questions Nos. 2 and 3 did in legal effect cover the same material point in controversy, though they were in different wording. The fact, though, that the jury agreed upon the answer to the second question and disagreed in part to nearly half of their number as to the answer to the third question, would seem to plainly show that they did not fully comprehend the questions as formulated, or intend the extent of the answer to the second question. It must be presumed that jurors, in a faithful effort to perform their duties, would not, if fully understanding the meaning and scope of the two questions, first find and answer that a state of facts existed, and then in the next moment have a marked disagreement over whether such state of facts did exist and have the same effect in inducing the contract of the parties. A further discussion of the questions by the jury may have brought a clearer understanding. In view of the extreme doubt existing as to whether the jury had, at the time they came into court to report disagreement, fully understood the questions and had knowingly agreed finally upon the extent of finding made, it is thought that it should be ruled that the court prematurely, and to appellant’s injury, withdrew the case from the jury.

The court erred in not granting a new trial for the error, and the judgment is reversed and the cause remanded for another trial as to the defendant John L. Brown in respect to the petition and prayer for damages. It is concluded, though, that, as the evidence failed to establish that defendant Shirley was not an innocent purchaser for value of the note before maturity, the court should have peremptorily instructed a verdict in his favor, and for that reason the judgment as to him should not be disturbed, but affirmed, and it is accordingly so ordered.


author: RAINEY, C. J.

text:
    GARDENHIRE v. GARDENHIRE et al.
    (No. 7234.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 2, 1915.)
    1. Teial (§ 350) — Special Yerdict — Submission oe All Issues.
    When a case is submitted on special issues, every controverted issue must be submitted, except those the court may pass on under Rev. St. 1911, art. 1985, providing that the failure to submit an issue shall not be reversible error, unless a request is made for such submission in writing, but it will be presumed that the court made such finding on that issue as will support the judgment.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    2. Appeal and Error (§ 218) — Presenting Question in Lower Court — Request eor Submission oe Issues.
    Where the court submitted all the issues to the jury, but -qualified the first two by stating that, if the jury found either of those issues against the defendant, they need not answer the others, to which qualification the defendant excepted, it was not necessary to request in writing a submission of the other issues to raise the question on appeal, under Rev.. St. 1911, art. 1985, providing that the failure to submit an issue shall not be reversible error, unless a request for submission was made in writing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1321, 1323; Dec. Dig. g 218.]
    3. Trial (§ 352) — Special Verdici^-Submission oe Issues — Sufficiency.
    A special issue, in trespass to try title to land claimed by a wife as a homestead, whether she had abandoned and discontinued the use of the premises with intention not to use the same as a home, is not sufficiently explicit to cover the issue whether she separated from her husband with intention no longer to live with him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.]
    4. Homestead (§ 141) — Right oe Wiee — Loss by 'Separation.
    Where a wife, without fault of the husband, voluntarily separates from him and leaves the homestead, which is his separate property or community property, she forfeits her homestead right therein.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 261-270; Dec. Dig. § 141.]
    5. Husband and Wiee (§ 271) — Community Property — Separation.
    A voluntary separation by the wife from her husband, and an abandonment of the homestead, which was purchased and improved in part from community funds, does not forfeit the' interest of the wife therein to the extent that it was benefited by the community funds.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 565; Dee. Dig. § 271.]
    6. Husband and Wiee (§ 267) — Community Property — Fraudulent Conveyance.
    A husband cannot defeat his wife’s community interest in the real property by a sale thereof made with that intent, of which intent the purchaser had notice.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 561; Dec. Dig. § 267.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Trespass to try title by F. E. Gardenhire against C. M. Gardenhire and others. Judgment for the plaintiff, and defendant C. M. Gardenhire appeals.
    Reversed and remanded.
    Brame & Brame and Jones & Hassell, all of Sherman, for appellant. Freeman & Bat-sell and J. H. Lawson, all of Sherman, for appellees.

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

   RAINEY, C. J.

F. E. Gardenhire, appel-lee, brought this suit in the nature of trespass to try title to a tract of 47 acres of land in Grayson county, Tex., and in the alternative for partition, against C. P. Garden-hire, his father, C. M. Gardenhire, his stepmother, Nick Graves, son of the said G. M. Gardenhire, and against the surviving sisters of the said F. E. Gardenhire and their husbands and the legal heirs of the deceased sisters of the said F. E. Gardenhire. Before the trial of the cause, the father, C. P. Gar-denhire, died, and by amended petition his name was omitted from those of defendants and the suit proceeded against his second wife, C. M. Gardenhire, her son, the said Nick Graves, and the surviving heirs of the said C. P. Gardenhire, deceased. C. M. Gar-denhire specially answered that the land was the homestead of herself and husband, C. P. Gardenhire, deceased, and that she was entitled to possession of same as such homestead ; that she had a community interest in said land by reason of community funds of herself and said husband being paid for part of said land and improvements placed on the same. The case was submitted by the court to the jury on special issues, and upon the verdict rendered by the jury a judgment was entered in favor of appellee, F. E. Garden-hire, for the entire tract of land, charged, however, with $105 in favor of Blanche Ferguson, one of the defendants in the suit below.

The first assignment is:

“Because the court erred in qualifying questions Nos. 1 and 2, so as not to permit the jury to answer other questions submitted to them on other issues raised by the evidence and pleadings of the parties; said questions Nos. 1 and 2 and said qualifications being as follows:
“ ‘Question No. 1. Did the defendant Mrs. 0. M. Gardenhire, on or about the 19th day of January, 1910, abandon and discontinue the use of the premises involved in this suit with the intention not again to use same as a home?’
“ ‘Question No. 2. Did defendant on or about the 19th day of January, 1910, abandon and separate from deceased, C. P. Gardenhire, with the intention of thereafter living separate and apart from him as his wife?’
“ ‘If you. answer “Yes” to questions Nos. 1 and 2, or either of them, then it will not be necessary for you to answer further; but you will at once return your verdict into court. If, however, you shall answer “No” to said questions, then you will proceed to answer question No. 3.’ ”

At the request of appellee, Gardenhire, the court submitted to the jury, in addition to the questions above mentioned, 17 others; but in accordance with the court’s instructions the jury returned a verdict affirmatively in answer to only one of them. The court thereupon entered judgment for appellee, and against appellant, evidently deeming that said answer settled all other issues raised by the pleadings and evidence. This action of the court we think was error. It is well settled in this state that when a case is submitted on special issues the parties thereto are entitled to have the jury pass upon every controverted issue involved in the controversy, unless where the court is authorized to pass upon issues not found by the jury, as provided by article 1985, R. S. 1911.

The court submitted to the jury all controverted issues under the pleadings and evidence, and it was not necessary for the appellant to submit in writing those issues of which she 'complains as not submitted, for she duly excepted to the qualification made thereto by the court, which qualification prevented the jury from passing on only one issue.

One of the issues involved in this controversy is:

“Did appellant abandon and separate from her husband, O. P. Gardenhire, with the .intention of thereafter living separate and apart from him as his wife?”

. This issue was in part embraced in question No. 1, but we think not sufficiently explicit to cover the legal proposition covered by question No. 2, which should have been answered. In 1889, when O. M. Gardenhire married O. P. Gardenhire, he was living on the land in controversy, where he took his last wife to live. The land was the community homestead of himself and a former deceased wife, by whom he had several children, most, if not all, of whom were living at the time of the trial of this case. Mrs. 0. M. Gardenhire claims that some of the payments for this land were made by O. P. Gardenhire out of community funds of herself and the said O. P. Gardenhire, after .their marriage. She also claims that there were two or three rooms added to the dwelling house and other improvements made on the premises after she went there to live, which were paid for with community funds of herself and husband, 0. P. Gardenhire, and for which she claims an interest.

Plaintiff claims that about January 1,1910, Mrs. O. M. Gardenhire separated from C. P. Gardenhire and abandoned the home with the intention of never returning to it to live and of never again living with her husband, O. P. Gardenhire. Plaintiff also claims that a short time after Mrs. 0. M. Gardenhire separated from her husband and abandoned the home, the husband, O. P. Gardenhire, abandoned the state and went to the state of Oklahoma, with the intention of living there, and died there in the year 1913. ' In November, 1910, Mrs. C. M. Gardenhire returned to the land, took possession of same, and claims it as her homestead. In 1911, some months after she returned to the place, O. P. Garden-hire conveyed the land to plaintiff.

If the wife, without fault of the husband, voluntarily separates from and abandons him and leaves the homestead which is the separate property of the husband, or their community property, she thereby forfeits her homestead right therein, and the husband is free to dispose of it without her consent. Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436; Ezell v. Dodson, 60 Tex. 333; Craddock v. Edwards, 81 Tex. 609, 17 S. W. 228. If Mrs. C. M. Gardenhire did in fact voluntarily separate from and abandon C. P. Gardenhire, and thereby lost her homestead right in the premises, she could not resume that right and repossess the property without the consent of C. P. Gardenhire, and his right to dispose of the property without her consent did not affect the validity of the sale to appellee. When C. P. Gardenhire left the place, if he never intended to return thereto, it then stood free from any homestead claim that Mrs. C. M. Gardenhire could assert. C. P. Gardenhire having disposed of his interest in the property before his death, Mrs. C. M. Gardenhire could inherit no estate therein.

If Mrs. Gardenhire did abandon her husband, she did not forfeit her right to have his separate estate charged with any community funds that went into any permanent improvements placed upon his separate estate, and appellee had notice thereof when he bought. Sanburn v. Deal, 3 Tex. Civ. App. 385, 22 S. W. 192. And if the community funds of C. P. and C. M. Gardenhire were expended in purchasing the interest of the children in the land, the sale by C. P. Gardenhire was made with intent to defraud Mrs. Gardenhire of her rights, and such intent on the part of C. P. Gardenhire was known to appellee, then the sale of such interest is void as to Mrs. Gardenhire, and did not affect her interest.

We think the jury should have been allowed to pass upon the issues as indicated, ,and the court erred in withdrawing them from their consideration.

The judgment is reversed, and the cause remanded.


text:
    CARIKER et al. v. DAVIS et al.
    (No. 1360.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 10, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Boundabies (§ 8) — Surveyed- Lands —  Conflicting Calls.
    The footsteps of the surveyor should be followed, and his location of the line be accepted as the true line, notwithstanding conflicting calls of the deed, which rule applies to original surveys first establishing a line, and not to an attempt to locate an older line called for in a subsequent deed.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. § 8.]
    2. Tbespass to Tby Title (§ 41) — Sueiu-cibncy oe Evidence.
    In trespass to try title to a wedge-shaped tract lying between the boundary line of two adjoining surveys, and the line which plaintiff’s ancestor, the common source of title, had run on the ground in 1872, judgment for defendants on the ground that it was conveyed by deed from the common source to their predecessor, and locating the true boundary line, held sustained by the evidence.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    Error to District Court, Panola County; W. C. Buford, Judge.
    Trespass to try title by Joe Cariker and others against A. W. Davis, Jr., and others. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    H. N. Nelson, D. C. Cariker, and Brooke & Woolworth, all of Carthage, for plaintiffs in error. W. R. Anderson, W. G. Banks, and R. W. Priest, all of Carthage, for defendants in error.

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

   HODGES, J.

This is an action of trespass to try title, brought by • the plaintiffs in error against the defendants in error to recover a tract of 14.2 acres of land described as a part of tlie Henry Runnels survey in Panola county. The west boundary line of the Runnels survey forms the east boundary line of the Thompson survey, and their corners at the north end of this line are the same. Prior to 1872, both of these surveys wore owned by Jacob S. Cariker, the common source for all parties. About that time, in order to make a division of his property between his children, he caused a line to be surveyed running north from the southwest corner of the Runnels survey to its north, boundary line. The evidence shows that he then established a corner 102 varas east of where the original corner of the Runnels and Thompson surveys had previously been located and is now shown to be. His deed thereafter to his son Jesse Cariker, under whom the defendants in this suit claim, called for the west boundary line of the Runnels survey running from the northwest corner of that survey and the northeast corner of the Thompson survey. He subsequently conveyed land on the west, and in describing it called for the east boundary line of the Thompson survey, which was also the west boundary line of the Runnels survey. There was a wedge-shaped tract lying between the east boundary line of the Thompson survey and the line Cariker ran on the ground in 1872. That is the land involved in this suit. The appellants claim as the heirs of Jacob S. Car-iker, and contend that this wedge-shaped strip was not disposed of by their ancestor in his deed to Jesse Cariker.

It is conceded that, according to the descriptions contained in the deed calling for the west boundary line of the Runnels survey, the defendants in error are entitled to the land involved in this suit, and the court so found. It is contended, however, that, inasmuch as Jacob S. Cariker in dividing his property established a line different from that which could be considered the true line of the original survey, his line would control; that it would be the duty of .the parties, in selecting the land described in the deed, to follow the footsteps of that surveyor. We understand the general rule to be that the footsteps of the surveyor should be followed, and his location of the line must be accepted as the true line, notwithstanding conflicting calls in the deed. That rule, however, we think should apply to original surveys in establishing a line for the first time, and not attempts to locate an older line where the older line is called for in the deed subsequently made. Evidently Jacob S. Cariker, in running the line he did in 1872, or about that time, was undertaking to locate the true west boundary line of the Runnels survey. The court finds that to run the west boundary line of that survey according to the calls for course in the original field notes would locate it at the point where Cariker had established it. He also finds, however, that the northwest corner of the Runnels survey was in fact established at a different place, 102 va-ras west of the Cariker corner. The field notes show that the west boundary line of the Runnels survey was the first line described in the original field notes. And while the line may not have been marked, as the testimony seems to indicate, both the southwest and the northwest corners appear to have been established. It follows that a straight line between those corners would be the true west boundary line.

The only assignment of error is that which complains of the sufficiency of the evidence to support the finding of the court. We think the evidence was sufficient, and the judgment is therefore affirmed.


text:
    TEXARKANA & FT. S. RY. CO. v. CASEY.
    (No. 1361.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 16, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Master and Servant (§ 136) — Injuries to Servant — Knowledge of Danger.
    Where those in charge of switching operations had cause to know that a car inspector was between the cars, it was negligence for them to move the cars, although he did not set the warning lights required by the rules.
    [Ed. Note. — For other cases, see Master and 'Servant, Cent. Dig. § 272; Dec. Dig. § 136.]
    2. Master and Servant (§ 276) — Injuries to Servant —. Actions — Evidence — Sufficiency.
    Evidence held to warrant a finding that the death of plaintiff’s intestate resulted from negligence of other servants of the railway company.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    3. Master and Servant (§ 289) — Injuries to Servant — Evidence — Question for Jury. ,
    The question of a deceased servant’s contributory negligence held, under the evidence, for the jury.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    4. Master and Servant (§ 213) — Injuries to Servant — Assumption of Risk.
    Where a car inspector went between cars which he thought had been coupled and would not be moved, without setting the warning lights required by the master’s rules, and it was the custom of switchmen to give notice before moving the ears or to refrain from moving them where they knew inspectors were liable to be between them, there is no room for the operation of the doctrine of assumption of risk; the inspector having no reason to assume that the switchmen would be negligent.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. § 213.]
    5. Appeal and Error (§ 544) — Record — Questions Presented for Review.
    Written interrogatories calling for findings of fact by thei jury constitute no part of the charge, and unless preserved by an appropriate bill of exceptions in accord with Rev. St. 1911, art. 2058, the denial of requested interrogatories cannot be reviewed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 242S, 2478, 2479; Dee. Dig. § 544.]
    6. Tkial (§ 250) — Instructions—Errors.
    Where the instructions were not incorrect or misleading, the fact that they included matters not necessary to enable the jury to decide the case is no ground for complaint.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.]
    7. Appeal and Error (§ 231) — Review — Presentation op Grounds.
    Objection that a charge is on the weight of the evidence is too general, where it was not pointed out what particular part of the charge invaded the province of the jury.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. § 231.]
    8. Trial (§ 234) — Instructions—Error.
    Where the case was submitted to the jury on special interrogatories, the giving of instructions which informed the jury what facts had to be found to entitle plaintiff to recover is not error, for it cannot be assumed that the jury out of sympathy for the plaintiff, who was suing a railroad company, would find, without regard to the evidence, merely to enable plaintiff to recover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. § 234.]
    9. Limitation op Actions (§ 127) — Amendments — Eppect.
    Where, within the period of limitations, plaintiff sued as widow and parent of surviving children, the filing of an amended petition, wherein she sued as administratrix so as to bring her cause of action within the federal Employers’ Liability Act April 22, 1908. c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), is not the institution of a new suit, and limitations are tolled by the filing of the original petition.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by Mrs. Lillie B. Casey, as admin-istratrix, against the Texarkana & Ft. Smith Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 151 S. W. 856.
    Glass, Estes, King & Burford, of Texarka-na, for appellant., Smelser & Vaughan and Graham & Smitha, all of Texarkana, and Johnson & Edwards, of Tyler, for appellee.

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

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

   HODGES, J.

The appellee, Mrs. Lillie B. Casey, administratrix of the estate of her husband, Ben F. Casey, instituted this suit against the appellant railway company to recover damages for injuries resulting in his death. This appeal is from a judgment against the railway company for $16,000. Many of the facts concerning the conditions under which the injury was inflicted are undisputed and will be briefly stated.

At the time of the accident in December, 1909, Ben F. Casey was employed in the service of the appellant as head car inspector in its yards at Texarkana, Tex. Some time during the early morning hours of December 23, 1909, while undertaking to couple the air-hose between some coal cars, Casey was run over and fatally injured, his legs and one arm were crushed, and he died a short time thereafter. What is referred to in the evidence as “freight train No. 74” was a through train due to arrive in Texarkana from the South in the early part of the night, but on this occasion it did not arrive till 5:30 in the morning. It was expected to go on north after being inspected and taking on additional cars. The appellant’s track in Texarkana runs north and south, and there are a number of switch tracks which parallel the main line. When freight train No. 74 arrived, it went in on switch track No. 1, which is next to and east of the main line. This train consisted of about 48 cars, and practically filled track No. 1. It was then the duty of Casey and ' his assistant, Joe Wilson, to inspect this train of cars. They placed a blue light on the rear end of the train and began their work of inspection, going north towards the front end. The switching crew, consisting of Iiams as foreman, Bentley and Sturtevant, waited at the north end of No. 74 for the inspectors to complete their work. The crew had with them a switch engine which they expected to 'use in doing the necessary switching. In the course of the inspection Casey and Wilson found two bad order cars, which we infer from the evidence were Nos. 15 and 16 from the front end of the train. There is some difference in the testimony of the witnesses as to just what was said between Iiams and Casey when the inspection was finished. Wilson, who appears to have been near them at that time, testified that while they were inspecting train No. 74 he heard some one whom he took to be Iiams say something about 12 coal cars; that when they finished their inspection Casey said, “All right,” to the switching crew, meaning that the inspection of that train was completed. Bentley, one of the switch-men, says he was about a ear length from Iiams, and heard him say to Casey:

“He gets those 12 coal cars on long house, and I am going to leave Ms head end in and let him do his own doubling over.”

He further stated that Casey made some remark and then walked away. What is here referred to as “long house” was a switch track on the west side of the main line and which connected with the main line a short distance north of the point of the junction of the main line and track No. 1. There were 12 coal cars standing, on this “long house” track, which were to be incorporated into train 74 before it went north. It is conceded that the meaning intended to be conveyed by the language used by Iiams to Casey was that the conductor of No. 74 was to take those 12 coal cars into his train; that the switching crew would shove the 14 cars, after elim-mating those in bad order, in on “long house” tract, couple them to the coal cars, and leave them there; and that the train crew would connect them with the other portion of train 74 which had been left on tract No. 1. As to what occurred between him and Casey, Iiams testified as follows:

“I told him there were 12 cars to pull out on the long house track, and we would throw 2 bad orders out of the train and shove the other 14 on the long house, and 74 could double from the long house onto track No. 1. When those 2 bad orders were kicked down the main line, that left the switch engine with 14 cars. Those 14 cars were to go north. I told Mr. Casey that I would put them in on the long house track. He understood we would couple those cars onto the 14 cars. What I meant by saying engine 74 was to double was when 74 pulled in they had a track full of cars; those cars were all to go, with the exception of the 2 bad orders. Of course, we had those 12 on the long house track to go with them.”

After the conversation referred to, the switching crew disconnected the 16 cars at the front end of train 74, including the 2 in bad order, pulled up on the main line, then shoved the two bad order cars down on the main line below the switch connection, leaving them there. They then pulled the remaining cars north and shoved them in against the coal cars on “long house” tract. The automatic couplers failed to work, and the coal cars rolled down the track about a car length or more, according to the testimony of Wilson, and then stopped. In just a few seconds another impact occurred and the coupling was effected, and all of the cars were pushed down on “long house” track so that the main line would be clear. It appears that, when Casey left Iiams after their conversation above referred to, he went immediately over to the 12 coal cars and began inspecting them and coupling the air-hose between the cars. When the second impact occurred, he was between the first and second coal cars from the south end, and was in the act of coupling the air-hose. It was then that he received the injuries that resulted in his death. The wheels of the car north of him passed over and crushed his legs and one arm. Shortly after the accident Casey stated to those who came to his assistance that he “thought the boys were through,” and that he was coupling the air-hose.

The petition charged negligence on the part of the switching crew in failing to notify Casey before making the second attempt to couple onto the string of coal cars.

The 'court submitted the case on special issues. In responding to the questions propounded the jury found, in substance, that when the collision occurred which caused the accident both Iiams and Sturtevant knew, and had reason to believe, that Casey was between the cars, in the performance of his duty; that, if they did not know it, they might have known it by the exercise of ordinary care; that the members of the switching crew were guilty of negligence in failing to notify Casey that they were intending to make a second attempt to couple onto the coal ears; that Casey was not guilty of contributory negligence in going between the cars at the time and under the circumstances then existing. Upon the findings of the jury, which include many not here noted, judgment was rendered in favor of the plaintiff below for $16,000.

The question of first importance is: Does the evidence support a finding of negligence in the manner alleged? In the fifteenth assignment of error, where this question is raised, the appellant thus states the particular grounds upon which it relies:

“The undisputed evidence showed that a short time prior to the accident deceased, Casey, was informed of the exact manner in which the work of breaking up train 74, setting out the two bad order cars, setting the coal cars into the train, etc. (would be done); that the work was done in the exact manner in which the said Casey was informed it would be done; that only a few seconds before the accident occurred the switching crew actually shoved a cut of cars against the coal cars, moving the latter a few feet; and that between the time the cars came together the first time and the second time the said Casey, without the knowledge of any member of the switching crew, went in between two of said coal ears 25 or 26 cars from the engine, and 10 or 12 cars away from any member of the crew, thereby receiving injuries causing his death. Defendant shows that plaintiff wholly failed to show that defendant was guilty of the negligence alleged, but, on the contrary, that said evidence shows that the said Casey, in going between said cars at the time and place and under the circumstances he did, assumed the risk as a matter of law.”

Other assignments attack specific findings by the jury upon which they must have based their conclusion in regard to negligence, assumed risk, and contributory negligence.

The appellant offered in evidence the following rules:

“26. A blue flag by day, and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under and about it; when thus protected it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, with-, out first notifying the workmen.”
“983. When inspecting or repairing cars that they do not wish moved, they must protect themselves by placing conspicuously a blue signal on both ends of the car, as provided in rule 26. When necessary to make repairs on a car in a train, they must place blue signals upon both ends of the train before commencing work. If an engine is attached to it they will place a blue signal upon the engine, where it can be plainly seen by the enginemen and fireman.”

-It is conceded that Casey had failed to place any blue signals on the cars he was inspecting at the time of his injury. The evidence shows that those coal cars were what are commonly referred to and known among railroad men as “pick-ups”; that is, ears that were to be “picked up” at some point in the yards and incorporated into a train going out. It was further shown that a custom of omitting the display of the blue signals when “pick-ups” were being inspected had prevailed in those yards for several years; the signals were used by the inspectors only when repairs of some kind were being made. This custom seems to have been known to and recognized by the employes generally, and had existed for such a length of time that the jury might have inferred that it was known to and acquiesced in by the superior officers of the company. The absence of the blue signals on the night of the injury did not, therefore, signify to Iiams and his crew' that no inspection was then being made of the coal cars by Casey. The presence of a blue flag, or a blue light, was one method of giving notice' to the trainmen and switchmen that inspectors were at work and that the cars were not to be moved. If from some other source or circumstances the switchmen knew or had good reason to believe that inspectors were at work on cars and were likely to be in a place of danger, their conduct in moving the cars without notice might well he regarded as perilous and imprudent, notwithstanding the absence of the customary signals. The question then is: Did Iiams or his crew know or have good reason to believe that Casey was at work on the train of coal cars and likely to be in a place of danger when the second collision occurred which caused the injury? The testimony shows that those coal cars were brought from a distant switch and placed on “long house” track about two or three hours before train 74 came in from the south. There is no evidence that Casey knew that those cars were to be taken out till so informed by Iiams after he and Wilson had completed their inspection of train No. 74. Iiams testified that when he gave Casey that information the latter turned and went in the direction of the coal cars, which were only about 25 feet distant. Casey carried an inspector’s light, which differed in some respects from those carried by the switchmen. One witness testified that Iiams could have seen Casey’s light had he looked in that direction. Taking into consideration the known duty of Casey, and the other attendant circumstances, we think there was ample ground for the inference that Iiams either knew that Casey was inspecting the coal cars, or had good reason for believing that he was so engaged and likely to be in a place of danger. Ry. Co. v. Reynolds, 103 Tex. 31, 122 S. W. 531. It seems to be admitted that moving ears that are merely being inspected is not necessarily attended with danger, but that coupling the air-hose under such conditions is dangerous.

It is insisted that Casey had been informed of the exact manner in which this work was to be done, and that this was sufficient notice to put him on his guard against a disturbance of the cars. Whatever notice Casey received was embraced in the language used in his conversation with Iiams before Casey began inspecting the coal cars. According to the testimony of the witness Bentley, a member of the switching crew, what Iiams said to Casey meant that the string of cars necessary to be handled in taking the two bad order cars out of train 74 would be shoved in on the “long house” track and left there. It is inferentially assumed by counsel for appellant that this meant that all of the cars on “long house” track would be pushed south until the main line was left clear, necessitating moving the coal cars. It is also assumed that Casey must have known that the coal cars would be disturbed because of his general knowledge of the location and condition of the switch tracks and the then situation of the coal cars. The testimony shows that the north end of these was only about one or two car lengths further south than was necessary to clear the main line. But let us assume that the work was done in the precise manner in which the language of Iiams indicated it would be done; this did not necessarily imply that those coal cars were to be moved before the inspection was completed. Casey might have inferred that Iiams knew that he was going immediately to begin the inspection, and that he would be permitted to finish before the cars were moved. However, as tending to rebut any such inference on the part of Casey, appellant relies upon a custom of long standing prevailing among the yardmen at that place; that was, the practice of switchmen coupling onto “pick-ups” at any time unless a blue signal was displayed, or unless they were notified not to do so. But the evidence does not justify the conclusion that switchmen persisted in doing their work in that manner without reference to the known situation of inspectors. The witness Bentley testified as follows:

“Q. Mr. Bentley, was it, or not, customary in that yard, * * * for the switching crew to shove against pick-ups when you knew that notwithstanding there was not a blue light the inspector was in between them? A. In that case the only thing I can answer, unless he said he was going to inspect the train, we would go-ahead and proceed with our work. If we seen him, we would holler at him. If we knew he was there, we would not do it, notwithstanding there was no blue signal. I should not think it was customary for the crew to siiove against pick-ups when they believed and understood that an inspector was between the cars.”

If that be a correct statement of the custom relied on, it cannot be said as a matter.of law that Casey was bound to know that the cars from No. 74 would be shoved against the coal cars without notice of some sort that would enable him to escape danger; ’ for, as we have before stated, the circumstances were such that he might have inferred that his presence there was known to the switching crew, or at least to Iiams.

But it may be said that, if Casey did not know in advance that the cars were to be moved without reference to what his work was, he was fully apprised of that fact when the first collision occurred. That may be true; but, if the conditions which immediately followed were reasonably calculated to deceive and did mislead him, such notice was insufficient to discharge the duty due to one in Casey’s situation. According to Bentley’s testimony, after the first collision the coal cars moved about a car length or more and then stopped; and after the passage of a few seconds another collision occurred, and the cars then continued to move on down the track. The interval referred to resulted from the failure of the cars to couple with the first impact, due to the drawbars or knuckles being out of position. Casey was about ten car lengths from the point where the coupling was to be made; and on account of the darkness, doubtless, did not discover that the first attempt to couple had been unsuccessful. He concluded, as his statements to those who* gathered around him after the accident indicate, that the switchmen had finished their work when the first collision took place, and that he might proceed with his duties in safety. We cannot say as a matter of law that, under those circumstances, such an inference was unreasonable, or not to be expected by one situated as Iiams was on that occasion, and that ordinary prudence did not require him to give Casey some warning of what the switching crew was about to do. We have therefore concluded that the evidence was sufficient to support the findings that negligence on the part of the switching crew was the proximate cause of the injury. Casey v. Railway Co., 151 S. W. 856; Railway Co. v. Perryman, 160 S. W. 406. The first case cited is this case on a former appeal, where the facts were practically the same.

We are also of the opinion that it cannot be said as a matter of law that Casey was guilty of contributory negligence in going between.the cars at the time he did. Assuming that the rules hereinbefore quoted required inspectors to put up signals when performing their work, the evidence in this record shows that a custom had prevailed for a considerable length of time in the yards of the appellant not to apply that rule to “pickups” such as the coal cars were in this instance. The disregard of the rule in that particular was of such long standing and was so well known to the switching crew that the omission of that duty by Casey and his helper would not constitute contributory negligence as a matter of law;' and that issue becomes one of fact which the jury had a right to determine as it did.

But it is urged that Casey assumed the risk of being injured when he undertook to inspect the cars without displaying the required signals, after having received the information he obtained from Iiams. It will be observed that we have placed the liability of the appellant upon conduct amounting to negligence on the part of the switching crew in failing to give notice to Casey when they had reason to believe he was inspecting the cars. The evidence does not warrant the inference that such negligent conduct was the custom in those yards. On the contrary, we must conclude from the testimony of members of the switching crew that, even when no signals were displayed, they usually gave notice to inspectors known to be in places of danger, before moving cars, or refrained from disturbing the cars until after the inspection was completed. We therefore find no basis for the application of the doctrine of assumed risk. The issue of liability depended upon whether or not the members of the switching crew were negligent, and not upon whether Casey was injured by exposing himself to a known risk resulting from habitual negligence on the part of the switch-men, or one that was ordinarily incident to the business. He did not assume the risk of being injured by an isolated act of negligence which he had no reason to anticipate would then occur. T. & P. Ry. Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510; Ft. Worth & Denver City Ry. Co. v. Smith, 39 Tex. Civ. App. 92, 87 S. W. 371.

In submitting the issues of fact the court propounded 24 questions to the jury The appellant presented in writing 10 additional questions, and requested that they also be submitted. This request was refused and that refusal is made the basis of several assignments. Those objections must be disposed of without reference to the merits of the questions involved, because the record contains no bill of exceptions to this ruling of the court. Article 205S of the Revised Civil Statutes of 1911 provides that:

. “Whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.”

Written interrogatories calling for findings of fact by the jury constitute no part of the charge and instructions of the court referred to in chapter 13 of the Revised Civil Statutes. A request of a party that certain questions be propounded is therefore not a request for a special charge. Railway Co. v. Cody, 92 Tex. 623, 51 S. W. 329. Even prior to the amendments of 1913, which require parties to except to the refusal of the court to give special charges, rulings of this character would not be reviewed on appeal unless the objection and ruling were presented in a proper bill of exceptions. There is nothing in those amendments to change the rule. These assignments will therefore not be further considered.

As prefatory to the interrogatories propounded in the trial below, the court gave the jury some general instructions intended for their guidance in determining the issues of fact submitted. These instructions were not confined to definitions of legal terms and phrases, but informed the jury in general terms that the switching crew with which Casey was at work on the night of the injury owed him the duty of exercising ordinary care to avoid injuring him while he was in the performance of his duty; that a failure to exercise such care would he negligence on their part. The court also told the jury under what circumstances Casey should he considered as ■ having assumed the risk of being injured by going in between the cars at the time he was injured, that Casey was required to exercise ordinary care for his own safety, and that a failure to exercise such care would amount to contributory negligence on his part. The portions of the charge objected to will not be here reproduced, on account of their length; but what is stated above is sufficient, we think, for the purposes of discussing these assignments. The objections made to this charge may be summarized as follows: (1) That such instructions were unnecessary and confusing to the jury. (2) That they were on the weight of the evidence. (3) That they in effect informed the jury under what conditions or state of facts the plaintiff could, or could not, recover.

Taking these objections in the order stated above, it may be conceded that much of what is embraced in these general instructions might have been omitted without depriving the jury of the information necessary to enable them to properly determine the issues involved. That fact alone does not require a reversal of the judgment. We have carefully examined this charge, and find nothing in it that would tend to confuse or mislead the jury in returning the answers made.

The objection that the charge is on the weight of the evidence is too general. Extensive quotations are made, but there is no effort to point out what particular part is subject to this objection, or in what portion the court invaded the province of the jury.

The last objection mentioned above is the one that was emphasized in the oral argument before this court. It was then urged that by informing the jury that under a certain state of facts the plaintiff in the suit would recover a judgment, and that under a certain other state of facts she could not recover, the court thereby influenced the jury to find the facts which required a judgment in the plaintiff’s favor. This argument is based upon the assumption that the jury would take into consideration the character and conditions of the parties to the suit, and would be moved by a feeling of sympathy for the plaintiff. It may be that in controversies of this character such emotions do sometimes control the verdicts of juries; but, in the absence of some evidence to that effect, we cannot assume that such bias and sympathy existed. The mere finding of facts favorable to the plaintiff is not sufficient when the evidence is of that character which warranted such finding. To gratuitously assume that a jury which has been properly tested and selected yielded to such sympathy, or was probably controlled by such emotions under such conditions, is to impeach the system of trial by jury for being fundamentally unreliable. Where a general verdict is to be rendered, the jury are necessarily informed of what is required to be found in order to entitle either party to a judgment. Evidently the law does not contemplate that such information should be concealed from juries in order to insure absolute impartiality. The error, if any there was' in giving this general charge, was harmless and does not warrant a reversal of the judgment.

Appellant presents the following objections to the admission of testimony:

“The court erred in permitting T. M. Bentley to testify as to what the custom of defendant’s employés was with reference to coupling to ‘pick-ups’ in the absence of a blue signal, when they believed an inspector was in between the cars, and in permitting the witness to testify, ‘No, sir; I should not think so.’ ”

We have examined the bill of exception referred to as supporting the objection here urged, and have failed to find where the witness used the language quoted. The bill covers four typewritten pages consisting of several questions, some of which were answered without objection, and others withdrawn upon objection. It is impossible for us to say from this bill that the language pointed out in the assignment was given as a part of this witness’ testimony. As tq proof of the custom, that appears to have been furnished by the testimony of other witnesses without objection. The next assignment refers to the testimony of another witness, which, it is claimed, was subject to a similar objection. An inspection of the bill itself shows that the objection now insisted on was in effect sustained by the court.

It is also contended that this cause of action was barred by the statute of limitations, because the amended original- petition was filed more than two years after the cause of action accrued. The record shows that this suit was originally instituted by Mrs. Casey as the widow of the deceased and the parent of the surviving children. That petition was filed before the expiration of the statutory limit. She subsequently qualified as administratrix, amended her petition, and now prosecutes the suit in the form required by the act of Congress. The case of Railway Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, settles that question against the contention of the appellant.

Appellant’s brief contains 49 assigned errors, and we have not undertaken to discuss all of them. To do so would extend this opinion to an unreasonable length. But we have carefully considered all of the objections raised, and are of the opinion that they, should be overruled and the judgment affirmed.


text:
    RANDELL v. ROBINSON.
    (No. 1342.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 25, 1914.
    On Motion for Rehearing, Jan. 7, 1915.)
    1. Trespass to Try Title (§ 6) — Title oe Plaintiee— Showing Against Trespasser.
    If defendant in trespass to try title is a naked trespasser, it is enough for plaintiff to show a bond for title to his grantor, without-showing consideration to support it.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. § 6.]
    2. Trespass to Try Title (§ 38) — 'Title oe Dependant — Presumption eroh Possession.
    The unexplained possession of defendant in trespass to try title raises a presumption of fee-simple title, which continues till it is affirmatively shown that he has no title, or plaintiff establishes right to exclusive possession, based on a legal or equitable title, good as against the world.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    3. Trespass to Try Title (§ 38) — Title oe Plaintiee — Bond eor Title — Showing Consideration — Seal.
    He having, at best, only an equitable title, to make a bond for title a muniment of title for plaintiff in trespass to try title against defendant in possession, not affirmatively shown to have no title, payment of a valuable consideration must be proved, the bond not reciting payment, and this though it be under seal.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by P. M. Robinson against T. L. Randell. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    Burdett & Connor, of Paris, for appellant. Wright & Patrick, of Paris, for appellee.

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

   HODGES, J.

This is an action of trespass to try title by the appellee against the appellant, to recover a tract of land situated in Lamar county and described as a part of the Abner Neathery survey. The appellant answered, disclaiming as to a portion of the land sued for and as to the other pleading not guilty and the statute of limitation of ten years. In a trial before the court without a jury a judgment was rendered in favor of the appellee, Robinson.

The facts of this case are fully stated in Randell v. Robinson, 146 S. W. 717, which is the same case on a former appeal. The evidence shows that Randell was in possession of the property to which he pleads not guilty at the time the suit was filed, and had been in possession for several years prior to that date. His testimony tended to show that he had held possession for ten years; but we must assume that the court found against him on the issue of limitation, in view of the general judgment rendered. No question is raised as to the sufficiency of the evidence to sustain that finding, but the suffi-. ciency of the evidence to support the judgment is attacked upon other grounds.

As a part of his chain of title, the appellee introduced in evidence a patent from the state of Texas to Abner Neathery dated April 10, 1858, also the following bond for title from Neathery to Mary Stewart:

“State of Texas, County of Hopkins.
“Know all men by these presents, that we, Abner Neathery and Louisa Neathery, of the county of Hopkins and state aforesaid, are held and firmly bound unto Margaret Stewart, of the county of Lamar and state aforesaid, in the penal sum of one thousand dollars good and lawful money of the United States, for the faithful payment of which we bind ourselves, our heirs, executors, and administrators and assigns jointly and severally by these presents. Signed with our hands and sealed with our seals, using a scroll seal for a seal, this 6th day of July, A. D. 1847.
“The condition of the above obligation is such. that whereas the above-bounden Abner Neathery and his wife, Louisa Neathery, have this day bargained and sold unto the aforesaid Margaret Stewart three hundred and twenty acres of land, it being part of the headright of the above-bound Abner Neathery lying and being in the county of Lamar and state aforesaid on North Sulphur, bounded as follows, to wit: Beginning at an ash bush hackberry marked A. N. brs. S. 77° -E. 87% vrs.; thence north 320 poles to stake; thence east 160 poles; thence south 320 poles to stake; thence west 160 poles to the beginning:
“Now, if the above-bound Abner Neathery and his wife, Louisa Neathery, shall well and truly make unto the aforesaid Margaret Stewart a good and valid title unto the above-described tract of land as soon as it can be obtained from the government, then this obligation to be null and void, otherwise to be and remain in full force and effect in law and equity.”

(These field notes cover 320 acres, including the land in controversy in this case.)

The appellee then connects himself with the Stewart title by a series of transfers which are conceded to be sufficient. There was no evidence offered to show that any consideration was ever paid to Neathery by Mary Stewart or any one holding under her for his title bond.

On the former appeal of this case we held, under facts practically the same as those now before us, that Randell, being a naked trespasser, had no right to raise the question as to the payment of that consideration. The case, however, was reversed upon other grounds. The ruling referred to probably influenced the honorable trial judge in rendering the judgment he did upon .the last trial. While adhering to the legal proposition that a naked trespasser would have no right to set up the failure to prove consideration to support the bond for title from Neathery to Mary Stewart, we have concluded that we were in error in holding that Randell occupied that status. Randell’s possession unexplained carried with it the presumption of a fee-simple title. Watkins v. Smith, 91 Tex. 589, 45 S. W. 560; Boyd v. Miller, 22 Tex. Civ. App. 165, 54 S. W. 411; House v. Reavis, 89 Tex. 629, 35 S. W. 1063; Keys v. Mason, 44 Tex. 140.

In the first case cited above. Justice Gaines used this language in referring to possession:

“It is not a rule of property. It is a mere rule of evidence, and is founded upon the principle that, since ownership is a usual concomitant of possession, it is a reasonable prima fa-cie inference that the possessor of property is the owner of such property.”

That presumption continues until it is affirmatively shown that defendant has no title, or the plaintiff establishes a right to the exclusive possession, based upon a legal or an equitable title to the property, good as against the world. The bond for title relied on in this case is simply a contract by Neath-ery and wife to convey the title when it was acquired by them from the state, and was executed about eight years prior to the date of the patent. So far as this record informs , us, that contract might or might not have invested the obligee and those claiming under her with an equitable title to the land after Neathery acquired it from the state, depending upon whether or not a valuable consideration had been paid. That the payment of a valuable consideration must be proved where the instrument itself does not recite payment, in order to make such contracts valid muniments of title, enforceable against the obligor or those holding under him has long been the established law in this state. Secrest v. Jones, 2Í Tex. 121; . Id., 30 Tex. 596; Tumlinson v. York, 20 Tex. 694. In the absence of such payment, or a tender of payment, Neathery, or those claiming under him, had the right to repudiate the contract to convey the title and to transfer the property to another. For aught that appears to the contrary, Randell may have acquired a title emanating from Neathery under just such circumstances. He cannot in this controversy be treated as a trespasser until it is affirmatively shown that he has no title or right of possession. One who seeks to oust a party in possession of real estate must recover upon the strength of his own title, which must make a prima facie showing good as against the world, or a superior title from an established common source. To say that Randell cannot now put Robinson on proof of the payment of a consideration to support the bond for title upon the ground that he is a trespasser is to assume without evidence that Randell has no title and to ignore the presumption of ownership resulting from proof of possession.

The case of Wright et al. v. Dunn, 73 Tex. 294,11 S. W. 330, was relied on in the former opinion as supporting the proposition of law announced. It is again cited by the appellee as applicable to the facts now before us. A more critical examination of that case has convinced us that it is not applicable. There both parties claimed under one I-I. L. Kinney. Dunn, the appellee, claimed through a bond for title from Kinney to Edward and'James Cody, based upon the consideration of a note for $300 given for the purchase money of the land. Through a transfer and by inheritance all rights under that bond for title were acquired by Dunn. The appellants, Wright and others, claimed under a deed from one of three executors of the will of Kinney. It was held by the court that this executor had no authority to convey, and his deed was not recognized as a valid muniment of title. It further appeared that the note which had been given as the consideration for the bond for title was subsequently transferred by the original holder, and could not be accounted for. The court held that the transfer of the note would have the same effect upon the consideration as payment to the original owner. It will also be observed that the record affirmatively disclosed that Wright and others had no title. In the ease now under consideration no such evidence has been adduced as to Randell’s rights. We must assume, until the contrary is proven, that he was the legal owner of the land and was entitled to the possession.

In the ease of Downs v. Porter, 54 Tex. 59, which is also relied on as supporting the conclusion of the court below, Justice Bonner uses language which intimates the opinion that proof of a consideration is not necessary where the bond for title is under seal, basing that conclusion upon the fact that at that time written instruments under seal imported a consideration. The record in this case does not show the signatures of Neathery and wife, but in the body of the instrument it is recited that seals are used. But the rule seems to be that, where the suit is upon the instrument itself for specific performance, the presumption of a consideration will not be indulged in support of the written contract, although it is under seal. Short v. Price, 17 Tex. 398; Wilson v. Simpson, 68 Tex. 309, 4 S. W. 840. Chief Justice Hemphill in the first case cited says, in discussing the question as to whether or not it was necessary to prove the consideration where the bond for title was under seal:

“But it may be said that this is a sealed instrument, and that a seal of itself imports a consideration. This may be regarded as an established doctrine in courts of law, but in equity, where the suit is not for damages, but for specific execution, no additional force is given to the agreement, because it is evidenced by an instrument under seal. * * * A valuable consideration is requisite. Where this is recited, its existence will be prima facie presumed; but where it is not expressed in the agreement, or admitted by the pleadings, proof of its existence must be adduced by the plaintiff.”

It is true that, strictly speaking, this is not an action for specific performance, but one for the recovery of real estate; but under our liberal system of practice such equitable relief may be obtained when the petition is in the ordinary form of trespass to try title. Such suits may be maintained and recovery secured upon proof of an equitable title only, which under the old system of practice must have been prosecuted in a court of equity. This suit is not in principle different from one which Mary Stewart might have instituted against -Neathery upon his failure to convey and deliver possession of the land in controversy after he had secured title from the state. The rights of the parties must be determined by precisely the same rules of law. Robinson holds under Mary Stewart, and has only such rights as she acquired by the contract with Neathery, while presumptively Randell may claim under Nea-thery and hold such rights as Neathery could convey based upon a failure to pay the consideration. Wilson v. Simpson, 68 Tex. 306, 4 S. W. 840; Neill v. Keese, 5 Tex. 24, 51 Am. Dec. 746; Miller v. Alexander, 8 Tex. 41; Wright v. Thompson, 14 Tex. 559; N. Y: & T. Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206, and cases there cited.

In Wilson v. Simpson, supra, a bond for title was relied on in support of the claim of one of the parties to the suit. This bond showed upon its face that the consideration had been paid. In discussing the proposition, involving the necessity of proof of the consideration, Justice Gaines said:

“Here, when Payne executed the bond to Harris, he had no land to convey. He had a right to land under the laws of the republic, but as yet had received no certificate as an evidence of that right. The contract seems based upon the idea that the obligor had received a portion of the land, and was entitled to a two-thirds of a league more, and he binds himself to procure a certificate for this amount of land at his own expense and to make title to the obligee. The certificate, however, issued for the whole league and labor. This gave Harris an undivided interest of two-thirds in the certificate. Now, the location having been made and the patent issued in the name of Payne, we think it quite apparent that whatever right the heirs of Harris had in the land was an equitable right, and their sole remedy in a court of equity. The claimants under this bond would have no standing whatever in a court of law, under a system of jurisprudence, where law and equity are administered in separate forums, and they could obtain no relief, even in a court of equity, without proving that the bond was supported by a valuable consideration.”

It follows that Robinson, having only an equitable title to the land sued for, would, but for our blended system, have been forced to assert his rights in a court of equity. Had he resorted to such a forum, he would have been compelled to conform to the rule which required him to prove a consideration, notwithstanding the contract which he sought to enforce was under seal. The judgment of the district court will therefore be reversed, and judgment here rendered that, the appellee take nothing by his suit for that portion of the land not included in the disclaimers filed by the appellant, and that he pay all costs both of this court and of the court below.

On Motion for Rehearing.

After inspecting the appellee’s motion for a rehearing, we have concluded to remand the case for another trial. The order reversing and rendering judgment in favor of the appellant will be set aside, and the case will be reversed and remanded.