text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. HITSON.
    (No. 8134.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 20, 1915.
    Rehearing Denied May 8, 1915.)
    Error from Nolan County Court; John H. Cochran, Judge.
    Action by J. J. Hitson against the Kansas City, Mexico & Orient Railway Company of Texas and others. Judgment for plaintiff, and defendants bring error.
    Reversed, and cause remanded.
    H. S. Garrett, of San Angelo, and Douthit & Smith, of Sweetwater, for plaintiffs in error. Ed. J. Hamner and Geo. T. Wilson, both of Sweetwater, for defendant in error.
   BUCK, J.

J. J. Hitson, plaintiff below, filed suit June 20, 1911, in the county court Nolan county, against the Kansas City, Mexico & Orient Railway Company of Texas, and the Kansas City, Mexico & Orient Railway Company, for alleged damages in the sum of $822, with interest, on a shipment of 45 heifers, 2 bulls, 2 horses, and 269 cows, from Sierra Blanca, Tex., to Clinton, Old.., December 19, 1910, via lines of the Texas & Pacific Railway Company and of the plaintiffs in error, defendants below. The Texas & Pacific Railway Company was not a party to this suit.

Practically, the same assignments of error are presented and the same conditions shown in this- case as in the cases of No. 8132, Kansas City, Mexico & Orient Ry. Co. of Texas et al. v. J. G. Imboden, 176 S. W. 900, and No. 8133, S. B. Hovey & M. L. Mertz, Receivers, v. Halsell-Arledge Cattle Co., 176 S. W. 897, this day decided by this court, the opinion in the first casé by Mr. Chief Justice Conner, and in the second case by Mr. Justice Dunklin; and it is the judgment of this court that, for the reasons given for this court’s action in those two cases, in so far' as they are applicable in this case, and they are so in the essential particulars, the judgment of the trial court should be reversed, and the cause remanded, and it is so ordered.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    HOLT v. GORDON.
    (No. 7167.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 27, 1912.
    Rehearing Denied May 1, 1915.)
    1. Evidence <&wkey;444 — Parol Evidence Affecting Writings- — Conditional Delivery —Deeds and Notes.
    In an action on notes given for the purchase price of land to foreclose the vendor’s lien, parol evidence is inadmissible to show a previous oral agreement between the parties that the transaction should become effective only on the happening of a condition; since the rule that parol proof is inadmissible to show that a deed to land absolute in form was delivered under a parol agreement that it should become effective only on conditions inconsistent with its terms governs in such a case, rather than the rule that parol evidence is admissible to show that a note was never delivered, in fact, as a present contract.
    [Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 1929-1944, 2049; Dec. Dig. 444.]
    2. Deeds <&wkey;70 — Validity—Misrepresentation — Opinion as to Law.
    A misrepresentation by the grantee’s attorney to the grantor that the property covered by a deed of trust was a homestead, and therefore the trust deed was unenforceable, when the grantor had no knowledge of the law, was unable to read the deed, and relied on the assurance, although a misrepresentation of opinion as to the legal effect of the deed of trust, is sufficient to avoid that deed for fraud.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. &wkey;70.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action- by R. T. Holt against F. J. Gordon. Judgment for the defendant, and plaintiff appeals.
    Reversed and remanded on rehearing granted on appellant’s motion, and ap-pellee’s motion for rehearing denied.
    See, also, 174 S. W. 1097.
    J. C. George, of Brownsville, and J. A. Johnson, of Stephenville, for appellant J. B. Keith, of Stephenville, for appellee.
   DUNKLIN, J.

R. T. Holt executed a deed in favor of F. J. Gordon purporting to convey 60 acres of land. The deed recited a total consideration of $2,800, of which amount $1,300 was recited as cash paid, hut which was not paid, and the balance was evidenced by two promissory notes for $750 each. At the time the deed was delivered to Gordon he executed and delivered to Holt the two notes for $750 each. September 28, 1906, was the date of this transaction between Holt and Gordon, and at that time Gordon owned another tract of 212 acres, which was the homestead of himself and family. On November 1, 1906, Gordon executed his promissory note for $1,300 in favor of Holt to cover the item in that amount recited in the deed as cash paid, and at the same time executed a deed of trust on the 212-acre tract to secure its payment.

1-Iolt instituted this suit to recover the amount of all three of the notes mentioned, and to foreclose his vendor’s lien on the 60-acre tract described in the deed to Gordon, and also the lien evidenced by the deed of trust upon the other tract, and from a judgment in favor of Gordon, the plaintiff has appealed.

By special answer to plaintiff’s petition Gordon alleged that prior to the execution of the deed by Holt the 212-acre tract was the homestead of himself and family; he desired to purchase another home nearer the town of Bluffdale, in order that he might educate his children; the 60-acre tract referred to above was such a location as the defendant desired, and plaintiff was offering to sell it, but the defendant had no money with which to make the purchase; plaintiff was conversant with all of these facts, and entered into a parol agreement with the defendant by the terms of which plaintiff would execute the deed to the 60 acres in the form it was executed; the defendant would execute his two notes in favor of the plaintiff for $750 each; defendant would then move upon the 60-acre tract, and thus make it appear that he had abandoned his homestead claim upon the 212-acre tract; thereafter defendant would procure a loan upon the 212-acre tract, and with the funds thus realized would pay to the plaintiff the $1,300 recited in the deed as a cash consideration. The defendant further alleged that prior to and at the time the deed and notes were executed it was further agreed in parol by and between him and the plaintiff that none of the instruments so executed and delivered would become operative and binding upon the respective malcers unless defendant should succeed in procuring a loan upon the 212-acre tract after he had moved therefrom ; defendant did move upon the 60-acre tract, but thereafter was unable to procure a loan upon the 212-acre tract, whereupon he abandoned the 60-acre tract, and removed to the 212-acre tract; after removing to the 212-acre tract, he tendered back to the plaintiff the 60-acre tract, and in his answer he tendered title to the same to the plaintiff with the prayer that the same be decreed in the plaintiff. By reason of the facts so pleaded the defendant alleged that neither the deed, nor the notes, nor the deed of trust, ever became operative, and therefore were without any legal force or effect. Gordon did not plead fraud, accident, or mistake in the execution of any of the instruments, excepting a plea of fraud in the procurement of the deed of trust, as hereinafter shown.

Plaintiff objected to testimony which was offered upon the trial in support of the allegations in the answer noted above, and those objections were overruled. Those rulings, and also the charge of the court submitting that defense to the jury are assigned as error. The proposition presented by the objections urged to that testimony, and by the assignment predicated upon the charge, is that defendant sought to vary the terms of the written instruments without any plea of fraud, accident, or mistake as a basis therefor, by evidence of parol agreement between the parties prior to, and contemporaneous with, the execution of those instruments, and to permit him to do so would be in violation of the rules of evidence. In Encyc. of Evidence, vol. 9, p. 353, the following is said;

“Parol evidence is admissible which tends to show that an instrument was never, in fact, delivered as a present contract, unconditionally binding according to its terms from the time, of delivery, but that it was delivered to become an absolute obligation upon the happening of a certain event or contingency, and that such event or contingency has ne^er occurred. Such evidence does not contradict or vary the terms of the writing, but tends to show that the instrument has never had any legal inception rendering it valid and binding as between the parties.”

This announcement of the law is well sustained by numerous decisions cited in the text referred to, notably the case of Burke v. Du Laney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698. And this rule is the basis of many decisions of our own courts, in effect, that one who signs and delivers a written obligation as a surety with the understanding between himself and the payee that he is not to be bound thereby unless another surety is procured, and no other surety signs the obligation, cannot be held liable thereon to the payee. Loving v. Dixon, 56 Tex. 75; Carleton v. Cowart, 45 S. W. 749; Large v. Parker, 56 S. W. 587.

The foregoing rule is applicable in suits upon promissory notes and bills of exchange. But, according to another rule of evidence equally as well settled, in the absence of fraud, accident, or mistake, parol proof is not admissible to show that a deed to real estate absolute in form, which has been delivered to the grantee, was delivered in escrow only, under a parol agreement between the parties that it should not become operative except upon certain conditions which are inconsistent with the terms of the deed. Heffron v. Cunningham, 76 Tex. 312, 13 S. W. 259; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; McClendon v. Brockett, 32 Tex. Civ. App. 150, 73 S. W. 854; Lapowski v. Smith, 1 Tex. Civ. App. 391, 20 S. W. 957; 3 Wash. Real Prop. § 584; Tiedeman on Real Property, § 815; 13 Cyc. 564. And the same rule applies to deeds of trust on land. Heffron v. Cunningham, 76 Tex. 312, 13 S. W. 259; East Tex. Fire Ins. Co. v. Clarke, 1 Tex. Civ. App. 238, 21 S. W. 277.

As indicated already, the primary purpose of this suit was to collect the amount due upon the promissory notes executed by Gordon. The foreclosure sought was to satisfy the debt from the proceeds of the sale of the land, and was, therefore, ancillary only to the collection of the debt. In the absence of any lien on the land, the defense urged would have been available as against the suit on the notes, under the rule of evidence first announced. Effect cannot be given to both those rules, and one must govern to the exclusion of the other.

In our opinion on a former hearing we held that the rule first referred to was applicable, and upon that conclusion affirmed the judgment. We are now convinced that we were in error in reaching that conclusion, that the rule of evidence last stated should control, and hence our former opinion will be withdrawn.

The deed to Gordon and the vendor’s lien notes executed by him at the time the deed was delivered constituted but one transaction, and, as the deed was of superior solemnity to the notes, preference should be given to the rule applicable to deeds. Eor the same reason the legal effect of the deed of trust could not be varied by proof of parol agreements having a contrary effect. Prom the foregoing conclusions it follows that there was error in admitting testimony offered by Gordon to prove the alleged parol agreements to and contemporaneously with the execution of the deed and vendor’s lien notes, and that the court erred also in submitting in the charge to the jury such agreements as a defense to plaintiff’s demand for a personal judgment upon all the notes and for foreclosure of the vendor’s lien upon the land described in the deed from Holt to Gordon and the deed of trust on the other tract.

According to other allegations in defendant’s answer, he was induced to execute the deed of trust by reason of fraudulent misrepresentations made by Holt, the allegation setting out such misrepresentations reading:

“He told the defendant that he had consulted Lee Riddle about it, who was a good lawyer, and that it would be the best way to secure a loan on the 212 acres of land; that he wanted the defendant to sign it so as to cover up the clause in the deed, dated September 28, 1906, which falsely recited a cash consideration of $1,300 cash paid. Plaintiff further told the defendant that said deed of trust would not amount to anything, that it was on his homestead, and that Lee Riddle had advised him that it was invalid, and that it could not be enforced.”

Gordon further alleged that he was unlearned in the law; that the deed of trust was prepared by Holt's attorney; that Holt brought same to him for his signature; he did not have his glasses at the time he signed the deed of trust, and without them he could not read, and did not read, the instrument; signed it without knowing its contents or its legal effect, relying upon the truth of those representations. While the alleged representations that the property was Gordon’s homestead, and therefore the deed of trust was invalid and unenforceable, were but the expressions of opinions concerning the legal effect of the deed of trust, yet we are of the opinion that they furnished a sufficient predicate for Gordon’s plea that the deed of trust was vitiated on account of fraud practiced by Holt. The case of Ramey v. Allison, 64 Tex. 697, was a suit in trespass to try title to recover land instituted by Ramey against Mrs. Allison, a widow. Plaintiff claimed title under a deed by the trustee named in a deed of trust executed by Mrs. Allison. The defendant in that suit filed a cross-action to cancel the deed, on the ground that her execution of the deed of trust was procured by fraud, and upon the trial this plea was sustained, and a judgment rendered in favor of Mrs. Allison was affirmed by our Supreme Court. The alleged fraud was that the attorney for the beneficiary named in the deed of trust, in order to procure her signature thereto, told Mrs. Allison, who was not experienced in business affairs, that the property covered by the deed of trust was her homestead and could not be affected by the deed of trust; that he was not only a lawyer, and therefore capable of determining a legal matter of that kind, but represented the beneficiaries, who would be bound by his representations ; that he desired the deed of trust as a mere matter of form; and that she need have no fear of losing her property by the execution of the instrument. In the opinion rendered in that case the following is quoted with approval from Kerr on Fraud and Mistake:

“A misrepresentation of a matter of law does not constitute fraud at law, because the law is presumed to be equally within the knowledge of all the parties. Thus the misrepresentation _ of the legal effects of a written agreement which a party signs with a full knowledge of its contents is not a sufficient ground at law for avoiding the agredment. But if a man dealing with another misleads him, and takes advantage of his ignorance respecting his legal position and rights, though there may be no legal fraud, the case may come within the jurisdiction exercised by courts of equity to prevent imposition.”

Thq cases of Lott v. Kaiser, 61 Tex. 671, Varner v. Carson, 59 Tex. 306, and West v. West, 9 Tex. Civ. App. 475, 29 S. W. 242, and 2 Pom. Eq. Jur. §§ 847, 849, announce substantially the same doctrine. Accordingly, the assignments of error in which the contention is made that there was error in overruling Holt’s special exception to the plea of fraud in the procurement of the execution of the deed of trust, in admitting evidence in suppqrt of that plea, and in submitting that as a defense to plaintiff’s demand for a foreclosure of that lien, are all overruled.

Eor the reasons noted, appellant’s motion for rehearing is granted, and the judgment is reversed, and the cause remanded.
      (g^jFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SANCHEZ v. BLUMBERG.
    (No. 5402.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    On Motion for Rehearing May 5, 1915. Further Rehearing Denied June 2, 1915.)
    1. Bailment <&wkey;ll — Liability os- Bailee-Special Contract.
    The parties to a bailment may substitue, for the contract implied by law, a special contract relieving the bailee from all liability or making him an insurer, but his liability is not to be enlarged or restricted by words of doubtful meaning.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 33-36; Dec. Dig. &wkey;ll.]
    2. Animals <&wkey;27 — Contract op Bailee — Construction.
    A contract, obligating a tenant to use good and reasonable care and caution in the care and maintenance of mules furnished him by the landlord and to return them on expiration of the lease in as good condition as received, the natural wear and tear excepted, did not constitute the tenant an insurer of the mules, but obligated him merely to use ordinary diligence in safeguarding them.
    [Ed. Note. — For other eases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. &wkey;27.]
    3. Animals &wkey;>27 — Hire and Use — Loss-Action Against Bailee — Negligence—Evidence.
    Evidence in support of a bailor’s cross-action for loss of a mule drowned while in the bailee’s possession held insufficient to show that the loss was due to any negligence of the bailee, where there was nothing to indicate that a reasonably prudent man would have anticipated such an accident.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. <5&wkey;27J

      4. Animals <&wkey;27 — Loss of Peopeety — Negligence of Bailee — What Constitutes. '
    That the bailor requested that a mule, the subject of the bailment, be moved to another pasture because of scarcity of the grass, did not render the bailee liable for loss of the mule from being drowned by a flood, though it would not have been drowned had the bailee complied with the bailor’s request; noncompliance with such request not constituting negligence which proximately caused the death of the mule.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. &wkey;27.]
    5. Bailment i&wkey;ll — Loss oe Peopeety — Common-Law Liability of Bailee.
    The common-law liability of a bailee does not make him liable for loss of the property by theft or its being taken from him by force.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 33-36; Dec. Dig. &wkey;>ll.]
    On Motion for Rehearing.
    6. Set-Off and Gounteeolaim <&wkey;35 — Un-liquidated Claim foe Toet — Action fob Conveesion.
    In a tenant’s action against his landlord for conversion of the proceeds of a check received for crops grown on the leased premises, which proceeds were obtained from the bank by defendant to whom plaintiff delivered the check, tile defendant cannot set off an unliquidated claim for damages for tort arising out of the loss of a mule furnished plaintiff by defendant.
    [Ed. Note. — For other cases, see Set-Off ana Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. &wkey;»35.]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action by S. Sanchez against August Blum-berg. From judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Fred N. Cowen and Wm. H. Russell, both of San Antonio, for appellant. J. A. Harley and Dibrell & Mosheim, all of Sequin, for ap-pellee.
   MOURSUND, J.

Appellant sued appellee in justice’s court for $126.20, alleging that two checks aggregating said sum had been given plaintiff by Round Bale Gin Company, and that when plaintiff presented same at the bank payment was refused, whereupon appellee undertook to secure the money on such checks and presented them to the bank, which gave appellee credit for the amount thereof and defendant refused to pay such amount to plaintiff. There was also a prayer for exemplary damages in the sum of $70. Judgment was rendered in favor of plaintiff for $63.10. On appeal to the county court, defendant specially excepted to the plea for exemplary damages, and after a general denial specially denied that he was indebted to plaintiff and claimed that plaintiff was indebted to him in the sum of $96.90. He alleged that about January 1, 1913, he leased plaintiff certain land for the year 1913, agreeing to furnish teams and farming implements for the cultivation of the land and also feed for the teams; that he delivered to plaintiff certain mules with the express agreement that plaintiff was to take good care thereof and to use reasonable care and caution in the care and maintenance of said mules and return them to plaintiff after the expiration of said lease; that plaintiff negligently permitted one of the mules which was worth $150 to be destroyed by drowning or by escaping and wandering off; that plaintiff never accounted to defendant for the value of said mule; that plaintiff had in his possession cotton of the value of $63.10, to which plaintiff was entitled by reason of said rental contract and defendant applied said sum of $63.10 in part payment of the debt due him by plaintiff for the mule, leaving the sum of $96.90 due him by plaintiff; that plaintiff’s claim in an unliquidated demand, and defendant’s claiip arises out of said contract and is connected therewith; and that plaintiff, if otherwise entitled to recover, could not recover except upon the faith of the rental contract by the terms of which he was to receive one-half of the crops produced and by reason of which he had possession of the mules which he was obligated to return in as good condition as when received, “the natural use and wear excepted”; that plaintiff is insolvent and for that reason defendant is entitled to offset his demand above pleaded. His prayer was that he be permitted to offset his claim for the loss of the mule against any claim of plaintiffs, and that he have judgment for $96.90. It seems that plaintiff orally amended his pleading so as to claim only $63.10, for the court instructed the jury that:

“Plaintiff seeks to recover from defendant the sum of $63.10 alleged to be due plaintiff by reason of bis one-half interest in two certain checks aggregating $126.20, which two checks were appropriated by defendant to his own use and benefit.”

The court submitted the question of plaintiff’s right to recover; also, the defendant’s right to recover on his cross-action; and the jury returned the following verdict: “We, the jury, decide in favor of the defendant, August Blumberg, on cross-action.” Upon such verdict judgment was entered that plaintiff take nothing by his suit and that defendant recover of plaintiff $86.10.

It is only necessary to consider one question, namely, whether the court should have instructed the jury to return a verdict against defendant on his cross-action.

The parties to a bailment may substitute a special contract for the one implied by law. The bailee may be relieved of all liability or he may become an insurer, but his liability is not to be enlarged or restricted by words of doubtful meaning. The intent to- vary the liability imposed by law must clearly appear. Hale on Bailments, p. 28. According to the weight of authority, an agreement by the bailee to return the bailment in good condition, or in as good condition as when received, ordinary wear and tear excepted, does not, in the absence of a stipulation to pay in case of nondelivery, indicate an intention to enlarge the common-law liability of the bailee. Ruling Case Law yol. 3, § 30; note to Grady v. Schweinler, 14 L. R. A. (N. S.) 1091. We hold that the contract sued upon in this case did not constitute plaintiff an insurer of the mules. As the relation of bailor and bailee existed for the mutual benefit of the parties, it devolved upon the bailee to use ordinary care and diligence in the safeguarding of the bailor’s property. The trial court took the view of the law above indicated as is shown by the charge, and it only remains to determine whether the evidence supports the verdict and judgment.

Defendant, speaking of the lease contract, testified:

“I was to furnish him the teams and furnish food for the teams, and he was to give me half of the corn and half of the cotton produced upon the land during the rental year. He obligated himself to take good care of the teams furnished him and at the expiration of the lease return the mules to me in as good condition as received, the natural wear and tear excepted.”

The mule was kept by plaintiff in a certain inclosure owned by defendant fronting upon the river. 'Defendant testified that about the latter part of August, 1913, all of the grass had been eaten out of said inclosure, and one day he saw his mules in the lane on the public road, whereupon he demanded the return of the mules to him, but plaintiff declined to return them because under the lease contract he was entitled to their possession; that he then told plaintiff not to turn them in the lower inclosure, but to put them in another pasture owned by defendant which fronted on the river and extended to the house; that the defendant did not use the mules after they were turned over to plaintiff nor authorize any one else to do so. Plaintiff testified that he did not use this mule after he had finished his crop and that defendant was working it a short time before the flood; that he had not seen the mule since the flood. The witness Torres testified that defendant and his sons worked the mule before the flood, and that witness worked such mule for defendant after plaintiff had finished his crop. Another witness testified that the last time he saw the mule defendant’s son was driving it to a wagon; this occurred a short time before the flood. The testimony in regard to defendant’s son workirig the mule is uncontradicted. The evidence is undisputed that defendant kept some of his milk cows and a horse or two in the same inclosure in which plaintiff kept the mules. The evidence does not disclose' whether the mule was drowned or stolen, or whether he escaped from the pasture and was lost; but defendant’s pleading and testimony indicate' his theory to be that the mule was drowned by a flood in the river. ’There are no facts tending to show that a reasonably prudent man would have anticipated such a result, or that the other stock in the pasture was likewise destroyed, and the only fact relied upon to show negligence is that plaintiff failed to comply with defendant’s request or demand to put the mules in another pasture. Such refusal did not show negligence, nor a breach of the contract, for it is neither alleged nor proven that under the contract defendant had any right to direct where the mule should be kept. Defendant wanted the mule moved because of scarcity of grass in the pasture; but as no' contention is made that the mule starved to death, and defendant kept some of his stock in the pasture, it cannot be said that leaving the mule there constituted neglience which proximately caused his death.

He would not be liable for any loss by thieves or for any taking from him or his servants by force. Ruling Case Law, § -23. Defendant used the inclosure for his own stock, and no facts are pleaded or proved which required plaintiff to keep up the fences, nor is there any evidence that they were not kept up. We conclude that the evidence fails to make out a case of negligence on the part of plaintiff proximately causing the death or loss of the mule.

The judgment of the trial court is reversed, and judgment rendered that appellant recover of appellee the sum of $63.10, with interest thereon from October 17, 1913, at the rate of 6 per cent, per annum, together with all costs of suit, and that appellee take nothing by reason of his cross-action against plaintiff.

On Motion for Rehearing.

After careful consideration, we conclude there is no merit in any of the contentions made in appellee’s motion for rehearing, except the one to the effect that judgment should not have been rendered by this court, but the cause should be remanded if we adhered to our view that the evidence was insufficient to sustain the judgment of the court upon the cross-action. This would be done were it not for the fact that in further considering this case we have arrived at the conclusion that we should have sustained the first assignment of error, wherein complaint was made because the court overruled plaintiff’s exception to defendant’s cross-action, which exception was to the effect that it was attempted by the cross-action to set off against plaintiff’s liquidated claim, which is founded in tort, an uncertain and unliquidated demand founded in tort, and which was not in any way connected with, incident to, or arising out of plaintiff’s cause of action. Appellee contends that his cross-action was founded upon a demand connected with plaintiff’s cause of action. His theory is that the $63.10, belonging to plaintiff, converted by him to his own use, was the proceeds of crops grown on the leased premises, and therefore he could offset his claim which arose from a breach of the lease contract. But the pleadings do not disclose that the check cashed by defendant was given plaintiff for crops grown on the leased premises. Defendant merely alleges that plaintiff had $63.10 worth of cotton to which he was entitled by the rent contract and that defendant applied said sum to the payment of the debt due him for his mule. But, even if it had been alleged that the money converted by defendant to his own use was the proceeds of rent cotton, such fact would not show that'defendant’s cross-action was connected with or incident to plaintiffs cause of action. Plaintiff’s cause of action is founded upon tort, and is not dependent upon the contract. Defendant contends that plaintiff could only recover upon the ground that he was appellee’s tenant under a contract to receive one-half of what he made on appellee’s land. This contention is erroneous. Plaintiff can recover by showing the conversion by defendant of the proceeds of a check belonging to plaintiff, and defendant can defeat the action to the extent of one-half by showing that one-half of the sum was justly due him by plaintiff. He then goes further and shows that he has an unliquidated claim for damages for tort which is connected with the contract he sets up to defeat plaintiff’s suit to the extent of one-half, but is not connected with, arising out of, or incident to plaintiff’s cause of action. The exception should have been sustained.

The former judgment of this court is set aside, and judgment entered as follows: That the judgment of the trial court is reversed, and judgment here rendered in favor of appellant against appellee for $63.10, with interest thereon from October 17, 1913, at the rate of 6 per cent, per annum, and all costs incurred in all of the courts, and dismissing appellee’s cross-action without prejudice.
      <§^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER. in ail Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. WILSON.
    (No. 454.)
    (Court of Civil Appeals of Texas. El Paso.
    May 13, 1915.
    Rehearing Denied June 3, 1915.)
    1. Evidence <&wkey;142 — Value of Other Property.
    In an action for depreciation of value of real estate by the construction of railroad tracks, exclusion of evidence as to value of adjoining property was not erroneous, where such property was dissimilar to that of plaintiff.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. <&^142.]
    2. Eminent Domain <&wkey;298 — Damages—Evidence.
    In an action for depreciation of the value of real estate by railroad construction, evidence, in rebuttal of testimony by a witness who lived across the street from plaintiff, that he suffered no inconvenience or discomfort, held admissible.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 807; Dec. Dig. <S&wkey;298.]
    3. Eminent Domain <&wkey;29S — Damages—Evidence.
    In an action for depreciation of value of real estate by railroad construction, evidence of depreciation in rental value after the construction of the railroad was admissible.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 807; Dec. Dig. &wkey;>298.]
    4. Trial <&wkey;121 — Argument of Counsei>-Deductions from Evidence.
    In an action for depreciation of value of real estate by railroad construction, argument of plaintiff’s attorney that the property involved had remained stationary while other property had advanced in value, being made, not as a statement of fact, but as a deduction from the evidence, was not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. &wkey;121.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by Mrs. Mollie F. Wilson against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 165 S. W. 560.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Hutcheson & Hutch-eson, of Houston, for appellee.
   HIGGINS, J.

Mrs. Wilson sued appellant to recover damages for an alleged depreciation in the value of certain property owned by her in the city of Houston, claimed to have been caused by the construction of railroad tracks near her property and the operation of trains upon same. Verdict was returned and judgment rendered in her favor in sum of $1,500, from which the defendant appealed. •

The sufficiency of the evidence to support the verdict and judgment is questioned. There is ample evidence in the record that the construction of the tracks and operation of trains thereon in proximity to plaintiff’s property has resulted in the inconveniences and annoyances complained of, and that there has been a depreciation in value of her property in consequence ’thereof. It would be a useless incumbrance of the record to quote it. It is quite true there is an abundance of evidence to the contrary, but the jury is the exclusive judge of the facts proven, the credibility of the witnesses, and the weight of the evidence, and there is nothing whatever to indicate in this case that it has abused the function vested in it. The assignment is overruled as being wholly and completely without merit.

Plaintiff’s premises consisted of parts of two lots fronting 92 feet on Broadway street and 89 feet on Texas avenue, upon which was situate a 16-room dwelling house or double flat. Appellant proved by the witness Tarpey that, about three years prior to construction of the tracks complained of, he bought from plaintiff’s husband and predecessor in title a tract of land 36 feet wide by 125 feet adjoining plaintiff’s, upon which there was a 6-room cottage. It then offered to prove by the witness that he paid $2,500 for said property. Upon objection, this testimony was excluded. The character of the improvements and size of the tracts and location in block were not so similar as to exclude all collateral considerations which may properly be considered in determining the relative values of the two properties. Plaintiff’s property was a large corner lot 89x92, with a 2-story 16-room flat thereon, whereas Tar-pey’s property was an inside lot 36x125, with a 6-room cottage thereon. The price paid for the latter could afford no proper criterion of the value of the former. Furthermore there is an abundance of evidence in the record by real estate men showing the value of plaintiff’s property before and after the construction of the tracks and operation of trains thereon, and in this respect the case seems to have been fully developed. In this condition of the record, the exclusion of the evidence, if erroneous, would not be regarded as reversible error. Rule 62a; Houston, etc., v. Dooley, 160 S. W. 594.

The testimony of the witness Dong was properly admitted in rebuttal of the witness Cutting. Cutting had testified that he lived just across the street from plaintiff’s property and experienced no inconvenience, discomfort, or annoyance of any kind from the operation of the trains upon defendant’s tracks. Long’s testimony tended to rebut this evidence. It was the jury’s province to make proper allowance for the difference in location.

Evidence was admitted to show a depreciation in the rental value of plaintiff’s property after the construction of the tracks and operation of defendant’s trains thereon. This was proper. Damage was sought for a permanent injury to the realty, and in such case it is permissible for the owner to show a depreciation in its rental value, resulting from the unlawful act complained of. It tends to show a depreciation in the value of the thing itself. Under the authorities in this state, the evidence was clearly admissible. Railway Co. v. Molloy, 64 Tex. 613; Railway Co. v. O’Connor, 51 S. W. 511.

Plaintiff’s attorney, in his opening argument to the jury, stated that the property involved in this suit had remained stationary while other property in the city had advanced rapidly in value. When this statement was made, appellant’s attorney excepted thereto upon the ground that it was improper and prejudicial, as there was no evidence to justify the statement or argument. The bill of exception upon this matter was qualified by the court as follows:

“That the statement of plaintiff’s counsel complained of was not a statement of fact, but an argument on the evidence, and was a statement by him of his recollection of the evidence, and plaintiff’s attorney, both in his opening argument and in the closing argument, made it plain to the jury that upon the questions of evidence they were the sole and exclusive judges, and that they must depend for tire evidence in the case upon their own recollection of the evidence in the case, and defendant’s attorney, in his argument replying to plaintiff, argued that there was no evidence that the value of plaintiff’s property had remained stationary, but, on the contrary, plaintiff’s property had advanced greatly in value, and plaintiff’s attorney in Ms closing argument replied in kind, taking the opposite position.”

We do not deem the argument as at all improper in view of the evidence. It was not made as a statement of fact, but as a deduction from the evidence, and from plaintiff’s viewpoint, warranted thereby.

The verdict is not excessive in amount. The evidence would support a larger one.

Affirmed.
      &wkey;oFor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


text:
    STURDEVANT v. FALVEY.
    (No. 452.)
    (Court of Civil Appeals of Texas. El Paso.
    May 6, 1915.
    Rehearing Denied June 3, 1915.)
    1. Evidence <&wkey;80 — Presumption—Law oe Another State.
    In the absence of proof of the laws of another state, it will be presumed that they also forbid the issuance of stock of corporation except for money paid, labor done, or property actually received.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. <&wkey;>80.j
    2. Corporations &wkey;^99 — Sale and Delivery oe Stock — Construction—Illegality.
    Under Const, art. 12, § 6, and R. S. 1911, art. 1146, providing that no domestic corporation, or foreign corporation doing business in the state, shall issue stock except for money paid, labor done, or property actually received, the issuance of the stock of a foreign corporation in consideration of a note was an illegal transaction.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. &wkey;>99.]
    3. Bills and Notes <&wkey;106 — Illegal Consideration — Eeeect as Between Parties.
    A note, the consideration of which is illegal, cannot be enforced as between the parties.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 219, 225-232; Dec. Dig. &wkey;106.]
    4. Bills and Notes <&wkey;342 — Rights oe Holder — Notice.
    The purchaser of a note from the indorsee of a corporation, which on its face showed that it had been given in payment for stock, took the note subject to the defense of illegality in the transaction.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 830-841; Dec. Dig. &wkey;> 342.]
    5. Appeal and Error <&wkey;742 — Assignments oe Error — Propositions.
    Under assignments of error on the ground that the illegality of the original transaction did not vitiate the note sued on, which had been given in lieu of a nonnegotiable note first given by the maker in payment for stock, propositions seeking to apply the rule as to collection of .a note given in consideration of a stock subscription contract where the stock had not been delivered were not germane,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742.]

      6. CORPORATIONS l&wkey;99 — SALE OF STOCK — ILLEGALITY — Note.
    The fact that defendant, who had given his nonnegotiable note in a transaction whereby stock was illegally issued therefor, afterwards substituted his negotiable note, did not validate the illegal transaction.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. &wkey;^99.]
    7. Bilis and Notes <&wkey;375 — Illegal Consideration-Estoppel to Claim.
    The fact that a negotiable note given in consideration of stock of a corporation illegally issued therefor, was transferred by the corporation to a third person in 'satisfaction of an obligation due him from the corporation, did not estop the maker, in a suit by such third person’s indorsee, from questioning the validity of the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. <&wkey;> 375.]
    Appeal from District Court, Harris County; E. B. Campbell, Special Judge.
    Action by I. L. Stuidevant against Thomas S. Falvey. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Woods, Harris & King and Kahn & Williams, all of Houston, and Peyton F. Edwards and J. G. McGrady, both of El Paso, for appellant. J. W. Lewis, of Houston, for appellee.
   HIGGINS, J.

Sturdevant brought this suit against Falvey to recover upon’a promissory note executed by the latter in favor of the Tri-State Construction Company. The case was tried without a jury upon an agreed statement of facts, and judgment rendered for defendant.

The agreed statement of facts reads:

“I. That the defendant executed and delivered to the Tri-State Construction Company, a West Virginia corporation, the note sued upon, as well as . the collateral security clause in said note, said note and collateral security clause being as follows:
“ ‘No. 230. Fostoria, Texas, 4/10/1912.
“ ‘On April 10, 1913, without grace, after date, for value received, I, we, or either of us promise to pay to the order of the Tri-State Construction Company twenty-five hundred dollars, at the office of said company in Houston, Texas, with interest at the rate of eight per cent, per annum from date until paid, and in the event default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection, or suit is bi-ought on same, then an additional amount of ten per cent, on principal and interest of this note shall be added to the same for collection fees. The drawers and indorsers severally waive presentment for payment, protest and nonpayment of this note. Thomas S. Falvey.
“ ‘As collateral security for the foregoing note and other notes, if any, this day given for the stock hereinafter named, I have delivered to the Tri-State Construction Company the following-securities : 125 shares ' Tri-State Construction Co. In case of default in payment of any of the foregoing- and above-described notes at maturity, I, we, or either of us authorize the holder applying the proceeds to the payment of the above note, including interest and attorney’s fees, and the surplus, if any remaining there.after, to be paid to the maker hereof on demand. Thomas S. Falvey.’
“II. The officers of the Tri-State Construction Company issued and delivered to the defendant, Falvey, 125 shares of stock in said company, which said certificate of stock is as follows:
“ ‘No. 95. Shares 125.
“ ‘Tri-State Construction Company.
“‘Capital Stock, $450,000.00.
“ ‘Shares, $20.00 each.
“ ‘This certifies that Thomas S. Falvey is the owner of one hundred and twenty-five shares of the capital stock of Tri-State Construction Company, fully paid and nonassessable, transferable only on the books of the corporation in person or by attorney, upon surrender of this certificate properly indorsed.
“ ‘In witness whereof, the duly authorized officers of this qorporation have hereunto subscribed their names and caused the corporate seal to be hereto affixed at Houston, Texas, this 19th day of April, A. D., 1912.
“ ‘J. S. Arnold, 1st Vice-President.
“ ‘S. G. Fuqua, Secretary. [Seal.]’
“III. By agreement of the officers of the TriState Construction Company and the defendant, said stock was issued and attached to said note as collateral security, as recited in fhe collateral clause of said note.
“IV. The defendant, Thomas S. Falvey, wrote a letter, of date April 7, 1912, to the Tri-State Construction Company, with reference to said note and stock, which said letter is as follows:
“ ‘Fostoria, Texas, April 7, 1912.
“ ‘Tri-State Construction Company, Houston, Texas — Gentlemen: I feel sure that it will be impossible for me to go to Houston this week, so I am writing you to inform you that I have investigated your Mr. Irvin and find him to be a reliable gentleman and on .the strength of his standing I will take up my note when it becomes due and take over the stock as agreed, hoping this will be satisfactory. It is possible that I will take more of this stock.
“ ‘Respectfully, Thomas S. Falvey.’
“This letter was written with reference to some other stock that had been previously purchased and had no reference to the stock involved in this suit, which was sold defendant subsequent to the writing of this letter.
“V. The defendant, Thomas S. Falvey, wrote a letter to J. A. Hoot, April 10, 1912, with reference to his subscription for the stock, which said letter is as follows:
“ ‘Fostoria, Texas, April 10, 1912.
“ ‘Mr. J. A. Hoot, Evergreen, Texas — Dear Sir: I have just subscribed for six thousand dollars of the Tri-State Construction Company stock, believing it to be one of the best propositions offered the public today. .1 believe that it is far better than Bank stock and I can say that, after investigation, I find the men connected with this company are reliable and men of business ability. If you are looking for a good investment, I believe that you would make no mistake in buying some of this stock. •
“ ‘Respectfully, Thos. S. Falvey.’
“VI. The Tri-State Construction Company had numerous copies of said two letters multi-graphed on defendant’s stationery and used the same with the knowledge of the defendant in boosting the sale of stock in said Tri-State Construction Company.
“VII. The plaintiff, I. L. Sturdevant, on June 18, 1912, bought the note hereinabove described, at Nacogdoches, Texas, from L. O. .Gibbs, to whom the same had been indorsed by the .TriState Construction Company and paid therefor the sum of two thousand ($2,000.00) dollars in cash, which was the usual and customary discount for such character of paper at such place.
“VIII. At the time of the purchase of said note, there was attached to said note the certificate of stock hereinabove described, together with the two letters, which had been written by the defendant, and each of which is herein-above described.
“IX. The plaintiff, Sturdevant, at the time of his purchase of the note, had no notice of any agreement or understanding between the defendant, Falvey, and the Tri-State Construction Company, with reference to the transaction, in which the note was executed and delivered and the stock executed and delivered, save and except the recitation contained in the collateral security clause of said note.
“X. The note was sold to the plaintiff, I. L. Sturdevant, by L. C. Gibbs, to whom the note had .been indorsed and delivered by the TriState Construction Company, in payment of services rendered said company by said Gibbs.
“XI. That the plaintiff was not personally acquainted with the defendant at the time he purchased the note and bought the same upon the financial responsibility of the defendant, as made known to the plaintiff through commercial reports received by him from R. G. Dun & Company and through Bradstreet Company, as to defendant’s financial responsibility.
“XII. That immediately upon purchase of the note, on June 18, 1912, plaintiff notified defendant that he had purchased the note and that payments would be due to him, but received no reply to said notice.
“XIII. That defendant executed the note sued upon herein in payment for the stock herein described and that there was no other consideration paid for said stock, except the execution and delivery of said note, and there was nothing paid for said stock; that plaintiff had notice from the recitation in the collateral clause of said note that said stock was issued and delivered for said note.
“XIV. That defendant first executed and delivered a nonnegotiable note for said stock and that afterwards the Tri-State Construction Company and its agents obtained from him another note, which was negotiable, in lieu of the first note, explaining that they needed a negotiable note for the purpose of depositing it with the secretary of state for procuring a charter for another corporation, the South Texas Traction Company, and the said Tri-State Construction Company and its agents agreed not to sell said note, but only wanted a negotiable note for the purpose hereinbefore stated, but plaintiff did not know of such understanding at the time he purchased the note and had no notice thereof.
“XV. That the Tri-State Construction Company in its advertising matter represented that purchasers of the stock had an option at the end of 12 months to take their stock and pay for the same, or accept 20 per cent, cash on their investment and surrender the stock and note, or to accept said stock of said Tri-State Construction Company for stock of the South Texas Traction Company, plus 20 per cent, to be taken in said South Texas Traction Company stock; that it was the intention of the defendant at the expiration of said 12 months to exercise his option by accepting 20 per cent, in cash on his investment and having his note cancelled and redelivered; that his intention, however, was not made known to the officers or agents of the said Tri-State Construction Company, but the plaintiff had no notice of any facts in this paragraph at the time he purchased the note.
“XVI. That defendant purchased said stock and executed and delivered said note in payment therefor, believing that said stock was a good investment and the letters he wrote relative to the same, as copied’ hereinabove, were written under that belief.
“XVII. That the Tri-State Construction Company, after the making and delivering of the note and the execution and delivery of the stock and the purchasing of the same by the plaintiff, was ascertained to be insolvent, but that neither the defendant at the time he made the note, nor at the time of the issuance of the stock, nor the plaintiff at the time he purchased the same, knew of said fact.
“XVIII. That L. C. Gibbs, to whom the note was indorsed and delivered by the Tri-State Construction Company and by whom it was indorsed and sold to the plaintiff, is insolvent.
“XIX. That the Tri-State Construction Company, being a West Virginia coi'poration, had no permit to do business in Texas.
“XX. Neither plaintiff nor defendant knew that said Tri-State Construction Company was a foreign corporation and that said corporation had no permit to do business in Texas.”

The instrument sued upon herein seems to be one of the two $2,500 notes referred to in Farmers’ & Merchants’ State Bank v. Falvey, 175 S. W. 833, recently decided by the Galveston Court of Civil Appeals, not yet officially reported, and evidently arose out of the transaction stated in the opiuion in that case. The agreed facts disclose that the note sued upon was executed in consideration of the issuance and delivery to Falvey of certain shares of the capital stock of the Tri-State Construction Company; that it was am executed sale of the stock upon the part of the company. Section 6 of article 12 of the Constitution provides that no corporation shall issue stock except for money paid, labor done, or property actually received.

The Tri-State Construction Company, it is true, is incorporated under the laws of West Virginia, but there is nothing in the record to show what the laws of that state are; so it would be presumed that they also forbid the issuance of stock except for money paid, labor done, or property actually received.

Aside from this constitutional inhibition and presumption as to the laws of West Virginia, article 1146, R. S. 1911, provides that no corporation, domestic or foreign, doing business in this state, shall issue any stock whatever, except for money paid, labor done reasonably worth the sum at which it was taken, or property actually received reasonably worth the sum at which it was taken.

Under the authorities, it is clear that the issuance and delivery of the Tri-State Construction Company stock in consideration of Falvey’s note was contrary to the constitutional and statutory provisions above noted, and was an illegal transaction. Irrigation Company v. Deutschmann, 102 Tex. 207, 105 S. W. 486, 114 S. W. 1174; McCarthy v. Texas, etc., 142 S. W. 96; Mason v. Bank, 156 S. W. 366.

The consideration for the note being illegal, its payment cannot be enforced as between the parties. Mason v. Bank, supra; Seeligson v. Lewis, 65 Tex. 216, 57 Am. Rep. 593; Wegner v. Biering, 65 Tex. 510; Davis v. Sittig, 65 Tex. 498; Carriage Company v. Hatch, 19 Tex. Civ. App. 120, 47 S. W. 288.

The note, upon its face, discloses that it was given for the stock, and in paragraph XIII of the agreed facts, it is expressly stated that the plaintiff had notice from the recital in the note “that said stock was issued and delivered for said note.” He therefore took the note subject to the defense urged.

In Cope v. Pitzer, 166 S. W. 447, the eases of Irrigation Company v. Deutschmann and McCarthy v. Texas, etc., supra, were distinguished, and it was held that collection of a note could be enforced which had been given in consideration of a stock subscription contract where the stock had not been issued and delivered and was not to be so done until payment of the note had in fact been made.

The Galveston court, in Farmers’ & Merchants’ State Bank v. Falvey, supra, held that Falvey’s testimony and other evidence in the record showed a mere subscription contract between the parties, and not an issuance and delivery of the stock, and rendered judgment against Ealvey upon the other note given at the same time and as a part of the same transaction out of which arose the note here sued upon; the Galveston court there recognizing and applying the distinction made in Cope v. Pitzer, between a note given to evidence an indebtedness upon a stock subscription contract and a note given in payment for the issuance and delivery of stock.

The agreed facts in the case at bar preclude the idea of a mere subscription contract and clearly show that the stock, for which the note was given, was issued and delivered to Falvey. Various paragraphs in the motion for new trial, which are presented here as the assignments of error, disclose that the appellant so understood the agreed facts upon the trial below. The propositions supporting assignments one, two, and three are hardly germane thereto, and seek to apply the rule declared in the suit upon the companion note by the Galveston court. It may seem anomalous that in different suits upon companion notes opposite results should be attained, but the facts disclosed by the records in the two cases are radically different.

In the assignments just mentioned, the reason urged before the trial court as ground of error, was that the illegality of the original transaction did not vitiate the note sued upon as it was given in lieu of a nonnegotiable note first given by Ealvey in payment for the stock. The reasons here urged in the supporting propositions are quite different, and consideration of the assignments might well have been refused for this reason, but we have deemed it best to dispose of same upon their merits.

The fact that the note sued upon is not the original note given to pay for the stock is of no importance. The mere change in the evidence of Ealvey’s obligation does not validate that which was invalid. If the trans-' action is illegal it cannot be made innocent or meritorious by a change of form. Wegner v. Biering, supra.

The note in controversy was originally transferred to one Gibbs in satisfaction of an obligation due him by the Construction Company, and the propositions supporting the fourth and fifth assignments contend that this fact estops Ealvey to question the validity of the note. We do not understand upon what theory Ealvey would be estopped from setting up the illegality of the consideration for the note and resisting payment thereof, merely because the payee had profited by the unlawful transaction.

Affirmed.
      '<3&wkey;For other oases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes

      <®5»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    TRINITY COUNTY LUMBER CO. v. CONNER.
    (No. 5482.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 5, 1915.
    Rehearing Denied June 2, 1915.)
    1. Justices of the Peace &wkey;5l64^-AppEAL— Transcript—Certiorari.
    Where the transcript of a justice’s court on appeal to the county court showed what issues were joined and contained all the. entries made on the docket, the county court properly refused certiorari.
    [Ed. Note.—Eor other cases, see Justices of the Peace, Cent. Dig. §§ 607-636; Dec. Dig. <&wkey;>164.]
    2. Appeal and Eeeoe i&wkey;736—Assignment of Mrrob— Multifakiousness.
    An assignment of error which is multifarious will not be considered.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <&wkey;> 736.]
    3. Costs <&wkey;246 — Appeal from Justice Court—Cost Bond.
    A defendant appealing from an adverse judgment of a justice’s court cannot compel plaintiff to give a cost bond where plaintiff was required by the justice’s court to give a cost bond which defendant did not attack.
    [Ed. Note.-—Eor other cases, see Costs, Cent. Dig. §| 947-950; Dec. Dig. &wkey;240.]
    4. Appeal and Error <&wkey;884 — Harmless Error—Erroneous Rulings.
    A party given opportunity to substitute papers desired by it, but refusing to do so, cannot complain of the action of the court.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3612-3616; Dec. Dig. <&wkey;> 884.]
    5. Jury &wkey;>25—Demand eor Jury.
    Where plaintiff suing for current wages converted by defendant and for an attorney’s fee and for punitive damages demanded a jury trial, defendant filing an answer and a cross-action could not complain of trial by jury.
    [Ed. Note.—Eor other cases, see Jury, Cent. Dig. §§ 154r-173; Dec. Dig. &wkey;25J
    6. Appeal and Error <&wkey;1140 — Excessive Recovery—Remittitur.
    Where the evidence on appeal from a justice’s court sustained a verdict of court for the wages sued for, but there was no evidence of the reasonable value of attorney’s fees allowed by Rev. St. 1911,' art. 2178, or any evidence authorizing exemplary damages, the judgment allowing attorney’s fees and punitive damages will be modified by permitting remittitur of attorney’s fees and punitive damages.
    [Ed. Note.—Eor other cases see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. <&wkey;> 1140.]

      Appeal from Trinity Oounty Court; C. M. McKinnon, Judge.
    Action by Elbert Conner against the Trinity County Lumber Company. From a judgment for plaintiff, defendant appeals.
    Conditionally affirmed.
    R. E. Minton, of Groveton, for appellant. A. M. Campbell and C. H. Crow, both of Groveton, for appellee.
   ELY, C. J.

This suit was begun in a justice’s court by appellee, a minor suing by his next friend, for $46.55, alleged to be due for current wages converted by appellant, as well as an attorney’s fee of $20 and $25 for punitive damages. Appellant pleaded general denial and set-off of $35.10, and tendered into court the sum of $11.45. In the justice’s court judgment was rendered in favor of ap-pellee for $46.55 and $20 for attorney’s fees. The case was appealed to the county court, where the same judgment was rendered, with the addition of $20 as punitive damages.

The first assignment complains of the refusal of the county court to grant a certiorari to the justice’s court, and is without merit. The transcript of the justice’s court showed what issues were joined between the parties, and the court found, after a comparison of the justice’s docket with the transcript, that' the latter contained all the entries made on the docket of the justice of the peace. There was no necessity shown for a writ of certiorari. Appellant filed a written answer and cross-action for $150.

The second assignment of error is multifarious and should not be considered. There is- no merit in the assignment, however, for the pleadings are sufficient to show a cause of action. The allegations were sufficient to show authority in the mother to prosecute the suit as next friend of the minor. The fourth, eighth, ninth, tenth, and eleventh assignments also attack the pleadings and are overruled.

The third assignment of error complains of the refusal of the county judge to require appellee to give a cost bond. Appellee was required to give a cost bond by the justice of the peace, and could not, in the absence of any attack on that cost bond, be compelled to give another bond. It has been held a number of times, in Texas, that when a defendant in a justice’s court appeals to the county court he cannot require the plaintiff to give a cost bond in the county court, even though none was given in the justice’s court. Foreman v. Gregory, 17 Tex. 193; Pierce v. Pierce, 21 Tex. 469; Miller v. Holtz, 23 Tex. 138; Taylor v. Brewing Association, 41 S. W. 111; Wells Fargo Ex. Co. v. Bilkiss, 136 S. W. 798.

The fifth and seventh assignments of error fail to point out any error and are overruled. The bill of exception under the fifth assignment shows that appellant was given an opportunity to substitute the papers desired by it, but it refused to substitute, and appellant cannot complain that it was compelled to try its cause before a jury. Appellee demanded a jury, and it did not matter that appellant may not have desired a trial by jury.

The twelfth, thirteenth, and fourteenth assignments of error present no valid ground for reversal and are overruled.

The language of counsel for appellee in his argument to the jury was very improper ; but, as the evidence fully sustained the verdict of the jury as to the amount of the wages sued for and the attorney’s fees, no injury could have been inflicted except as to the $20 for exemplary damages, and the attorney’s fee about which there was no testimony whatever. Article 2178, Rev. Stats., provides for the recovery of “a reasonable amount as attorney’s fees” in certain cases not to exceed $20, but in this case there was no evidence of what would be a reasonable attorney’s fee, and the allowance of the fee indicates prejudice and passion. This would not affect the amount of the account which was clearly proved in fact by appellant’s books.

There is no other point presented requiring consideration, and all other assignments of error are overruled.

If a remittitur of $40 is entered in this court in 20 days, the judgment will be affirmed ; otherwise it will be reversed and the cause remanded.
      (g^aFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BLACKWELL v. VAUGHN et ux.
    (No. 8160.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 17, 1915.)
    1. Appeal and Error <&wkey;>754'— Questions Reviewable — Sufficiency of Evidence to Sustain Judgment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1986, 1990, providing that a special verdict shall be conclusive as to the facts found, and requiring the court to render judgment thereon, unless the same is set aside and a new trial granted, a party cannot complain of a judgment conforming to a special verdict on the ground of the insufficiency of the evidence to support the verdict, where he did not assign error to the refusal of the court to set aside the special verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. <&wkey;> 754.]
    2. Homestead &wkey;-162 — Actual Occupancy-Necessity.
    Where a divorced woman occupied as a home property set apart to her as a homestead in the divorce decree, and then married a man, who intended to make the homestead the common homestead, actual occupancy was not essential to maintain the homestead right, in the absence of any other homestead or other property owned by them.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. <§=>162.]
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Action by F. M. Vaughn and wife against R. J. Blackwell. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    J. W. Boynton, of Anson, for appellant. Mahaffey & Fulwiler, of Abilene, Brooks & Brooks, of Anson, and Ocie Speer, of Ft. Worth, for appellees.
   CONNER, C. J.

This is a suit instituted by F. M. Vaughn, joined by his wife, to recover possession of lots 4, 5, and 6, block 42, in the town of Hawley, Jones county, Tes., claimed by them as a homestead, and from which it was alleged they had been ejected by the defendant R. J. Blackwell. The defendant claimed under an execution sale and sheriff’s deed by virtue of a judgment that had been rendered against Mrs. Vaughn. The case was submitted to a jury upon special issues, and upon the return of the answers judgment was entered for the plaintiffs, and the defendant has appealed.-

The undisputed proof shows that at and prior to the time of the marriage of F. M. Vaughn and his wife, to wit, on March 8, 1913, she, together with several children, had occupied the premises in controversy as her home; it having been set apart to her as a homestead in a decree of divorce rendered between Mrs. Vaughn and a former husband. The jury, in answer to the special issues submitted, found that F. M. Vaughn, from the time of his marriage up until the 9th day of July, 1913 (when the levy was made under which defendant claims), had the intention of occupying the premises sued for as a homestead. They further found to the effect that, immediately after their marriage, F. M. Vaughn and his wife actually occupied the premises about 14 hours; that neither F. M. Vaughn nor his wife ever at any time abandoned their intention to make the property their home; that F. M. Vaughn never owned, bought, or purchased any other place as a home to live. It is therefore clear under the undisputed proof recited and the findings of the jury, if they are to be maintained, that the judgment below must be supported, notwithstanding the fact of the temporary absence of F. M. Vaughn and his wife (during which appellant caused his levy) following the 14 hours occupancy stated. Foreman v. Meroney, 62 Tex. 723; Aultman v. Allen, 12 Tex. Civ. App. 227, 33 S. W. 679; Parr v. Newby, 73 Tex. 468, 11 S. W. 490; B. & L. Ass’n v. Guillemet, 15 Tex. Civ. App. 649, 40 S. W. 225.

But appellant insists by his first assignment of error that:

“The judgment of the court is erroneous because the evidence in the case conclusively shows that at the time of the levy of the execution in favor of defendant on July 9, 1913, upon the property sued for by plaintiffs, same was not and had not been prior thereto the homestead of the family of which F. M. Vaughn, one of the plaintiffs herein, was the head.”

Under this assignment all of the testimony in the case is presented which, it is contended, supports the proposition embodied in the assignment quoted. But, if it be admitted that the evidence must be given the effect insisted upon, the assignment nevertheless must be overruled, for the reason that appellant made no motion below to set aside the findings oi the jury, nor do we find any assignment at tacking any one or more of the findings because of a want of evidence. The statute provides that a jury may be required to render a general or special verdict, and declares that a special verdict “shall, as between the parties, be conclusive as to the facts found.” See Vernon’s Sayles’ Tex. Giv. Stat. art. 1986. The statute further provides that:

“In all cases where a special verdict of the jury is rendered, or the conclusions of fact found by the judge are separately stated, the court shall, unless the same be set aside and a new trial granted, render judgment thereon.” Vernon’s Sayles’ Tex. Civ. Stat. art. 1990.

In construing these provisions of the statute, our Supreme Court in the case of Waller v. Liles, 96 Tex. 21, 70 S. W. 17, after reviewing the previous case of Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79,. says:

“That the findings of the jury upon the issues made by the pleadings in a case, although against the undisputed evidence or without evidence to support them, cannot be disregarded, but must constitute the only basis upon whicn any proper judgment can be rendered.”

In the case of Scott v. F. & M. Nat. Bank, 66 S. W. 485, by the Court of Civil Appeals for the Third District, it was held, upon reasoning and authorities which we approve, that, where a party on appeal fails to assign error to the action of the court in refusing to set aside a special verdict, he cannot complain of the judgment on the ground that the findings are unsupported by the evidence. Appellant’s first assignment is accordingly overruled.

In the only remaining assignment of error appellant complains of the court in not sustaining his motion for a new trial on the-ground of newly discovered evidence. In. support of this ground of his motion, he presented the affidavits of H. R. Wood, S. M.. Landress, and W. W. Wood, setting forth circumstances which merely tended to show; that appellee and his wife did not, as they testified, occupy their homestead immediately after their marriage. Possibly this ground of the motion for new trial, though not so designated, might be construed as at least an indirect attack upon the finding of the jury that F. M. Vaughn and his wife had occupied the premises in question 14 hours; but, if so, at least a majority of us, not only think the circumstances tendered too inconclusive to-overturn the finding, but also that the finding itself, in view of other findings and the-undisputed evidence, is immaterial. If in fact F. M. Vaughn and his wife had no other homestead, owned no other property, and if, at the time of their marriage, it was their purpose and intention to occupy the premises-in controversy as their home, and no abandonment, of purpose existed, they would be entitled to the homestead exemption, regardless of an actual occupancy prior to appellant’s levy. In the case before us it is undisputed that the property in question had become impressed with and actually occupied as a homestead by Mrs. Yaughn before her marriage with E. M. Vaughn, she then having her household effects in the house; and it does not appear that any improvement or other thing was necessary to be done in order to make the home habitable; and conceding that F. M. Vaughn, the husband, had the right to designate the homestead, and that he theretofore had none, or that he occupied rented premises, as shown, at another place, he had upon the marriage formed, as he had the lawful right to do, the purpose, as found by the jury, to make his wife’s former homestead the common homestead of both. Under such circumstances, we do not think actual occupancy was indispensable. Such circumstances distinguish the case from those requiring an existing bona fide intention to dedicate property as a homestead, coupled with such acts of preparation as would amount to notice of the dedication. These rulings have been made in cases where there had been no previous occupancy of the land as a homestead, and in order to prevent an assertion of the homestead right from being converted into an instrument of fraud. ■See Franklin v. Coffee, 18 Tex. 417, 70 Am. Dec. 292; Barnes v. White, 53 Tex. 631; Brooks v. Chatham, 57 Tex. 33. The case of Hardin v. Neal et ux., 32 Tex. Civ. App. 335, 74 S. W. 334, was one in which Neal and wife, owning no homestead, acquired an improved home with the purpose of making it a resident homestead. It was several months, however, before they were enabled to actually occupy the premises, but. it was held that the homestead right asserted under the circumstances was superior to the levy of an attachment made in the meantime. See, also, to the same effect, Evans v. Daniel, 25 Tex. Civ. App. 362, 60 S. W. 1012; Rutherford v. Cox, 25 Tex. Civ. App. 499, 61 S. W. 527; Davidson v. Jefferson, 68 S. W. 822; Gardner v. Douglass, 64 Tex. 76.

We conclude that all assignments of error must be overruled, and the judgment affirmed.
      <®s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    UNKNOWN HEIRS OF BUCHANAN v. CREIGHTON-McSHANE OIL CO.
    (No. 5489.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 19, 1915.)
    1.Escheat &wkey;>8 — Operation—Effect.
    Escheat proceedings under the statute vest, when regular, the title to the property sold in the purchaser, regardless of whether there are ¡heirs of the person whose property is escheat-ed, and heirs, devisees, or legatees must assert their claim against the proceeds of the property.
    [Ed. Note. — For other cases, see Escheat, Cent. Dig. §§ 20-22; Dec. Dig. &wkey;>8.]
    2. Escheat &wkey;>8 — Sale of Property — Evi-dbnce of Plaintiff’s Title.
    In trespass to try title by plaintiff claiming under a conveyance from a purchaser of the property sold in escheat proceedings, recitals in the sheriff’s deed and in the order confirming the sale of issuance of order of sale are, when received in' evidence without objection, sufficient to show that a valid order of sale was issued.
    [Ed. Note. — For other cases, see Escheat, Cent. Dig. §§ 20-22; Dec. Dig. <&wkey;8.]
    3. Appeal and Error <&wkey;204 — Questions Reviewable — Rulings on Evidence — Objections — Exceptions.
    Admission of evidence to which an objection was not made and exception saved to the overruling thereof is not reviewable on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 12S0, 1569; Dec. Dig. &wkey;204.]
    4. Escheat <&wkey;8 — Proceedings — Order of Sale.
    Issuance of order of sale provided for in Rev. St. 1911, art. 3197, relating to escheat, need not be noted in the execution docket to be valid.
    [Ed. Note. — For other cases, see Escheat, Cent. Dig. §§ 20-22; Dec. Dig. &wkey;>8.]
    5. Escheat &wkey;>8 — Proceedings—Sale—Notice — Statutory Provisions.
    Under Acts 16th Leg. c. 139, providing for notice of sale in escheat proceedings, notice of sale need not be published.
    [Ed. Note. — For other cases, see Escheat, Cent Dig. §§ 20-22; Dec. Dig. &wkey;o8.]
    6. Appeal and Error <&wkey;1068 — Questions Reviewable — Immaterial Questions.
    Where a requested instruction directing verdict for plaintiff was properly given, an assignment based on refusal of a charge as to damages demanded by defendant in his cross-action will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. t&wkey;>1068.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by the Creighton-Mc-Shane Oil Company against the Unknown Heirs of Duncan Buchanan, deceased. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    W. D. Gordon, Thos. J. Baten, and J. S. Wheless, all of Beaumont, for appellants. Smith, Crawford & Sonfield, of Beaumont, for appellee.
   MOURSUND, J.

This is an action of trespass to try title, brought by appellee against the unknown heirs of Duncan Buchanan, deceased, to recover 1,280 acres of land in Hardin county. Plaintiffs also pleaded that it had acquired title by virtue of the statute of limitation of five years. Service was perfected by publication. D. F. Singleton was appointed attorney for the unknown heirs, and he filed a formal answer. J. P. Buchanan, and many others, most of them residents of North Carolina, filed an answer, alleging that they were the known heirs of Duncan Buchanan. They filed a cross-action for the title and possession of the land, and for damages for timber removed by plaintiff. Plaintiff answered the cross-action with pleas of general denial and not guilty, and pleaded the two and four years’ statutes of limitation as against the plea for damages. In answer to this plea of limitation, several of the Buchanan people pleaded the disability of minority, and others that of coverture. The court instructed a verdict for plaintiff, and, the same having been brought in, judgment was entered for plaintiff for the land and against defendants upon their cross-action.

The land in controversy was patented to Duncan Buchanan on May 6, 1841. J. P. Irvin bought said land at sheriff’s sale, made by'virtue of certain escheat proceedings had in the district court of Hardin county, Tex., and plaintiff under mesne conveyances holds such title as was acquired by said Irvin. The suit brought for the purpose of escheat-ing said land was styled “State of Texas v. All Persons Interested in the Estate of Duncan Buchanan, Deceased, and Silas B. Turner, Claimant.” ■ It is admitted that all of the papers in said case are lost; that diligent search was made for the same without success. Plaintiff introduced in evidence the judgment rendered in said case, the sheriff’s deed, the order confirming the report of sale made by the sheriff, and the docket entry made by the district court in said case. The judgment reads as follows:

“The State of Texas v. All Persons Interested in the Estate of Duncan Buchanan, Deceased, and Silas B. Turner, Claimant. No. 248. The above entitled and numbered cause came on regularly for trial on this 21st day of March, A. D. 1889, and citation in said cause having been issued, served and perfected in accordance with law, and the court having jurisdiction as conferred by law, the court thereupon appointed W. H. Nall, Esq., an attorney of the court to represent the interest of all persons interested in the estate of Duncan Buchanan, deceased, who filed an answer for them and Silas B. Turner, claimant, appeared by his attorney, T. J. Russell. Thereupon the state of Texas and the said defendants and the said claimant by their said attorneys announced ready for trial, waived a jury and submitted the facts as well as law to the court, and the court is of opinion, and so adjudges, that the material allegations of plaintiff’s petition are true, and that the law and facts are in favor of the state of Texas. It is therefore ordered, adjudged, and decreed by the court that the state of Texas has good title to the following described tract of land, to wit: Twelve hundred and eighty acres of land lying and being in Hardin county, Texas, originally granted on the 6th day of May, A. D. 1841, by the republic of Texas to Duncan Buchanan by patent No. 115, vol. 1, and that said land be and the same is hereby escheated to the state of Texas and title vested therein and out of the defendants and claimant in accordance with law in such cases, and that the state of Texas be and is hereby seised and possessed of said land, and that a writ of possession issued in accordance with law and this decree. It is further adjudged and decreed that the value of said land is, and that the same be fixed at, 50 cents per acre, and that it be sold in accordance with law, and that the claimant, Silas B. Turner, under his plea and answer, be allowed the sum of seventy-five dollars, the amount of taxes paid by him on said land to be paid out of the proceeds of the sale after deducting the commissions of the district attorney and the other officers of court as allowed by law, and that the sum of twenty dollars be allowed as a fee, and hereby taxed as costs, to W. H. Nall, attorney, for his services for said defendant, in same manner the clerk to pay said sums respectively as adjudged to the parties. It is further adjudged, ordered, and decreed that the clerk of this court issue all writs necessary to enforce this judgment and as provided by law, and that the state of Texas pay all costs herein incurred.”

The deed from W. W. Lyon, sheriff of Hardin county, to J. P. Irvin, dated November 6, 1889, duly acknowledged and recorded, conveys the land in controversy, and contains the following recitals:

“Whereas, by an order of sale dated October 14, A. D. 1889, and to me as sheriff of Hardin county, Texas, directed and delivered said order of sale issued out of the district court of Hardin county, Texas, by the clerk of said court, and directing me as sheriff aforesaid to seise and sell as under execution the real estate hereinafter described. Said property having been escheated to the state of Texas as provided by law in such cases by the said court in cause numbered on the docket thereof 248 and styled the State of Texas v. All Persons Interested in the Estate of Duncan Buchanan, Deceased, and H-. B. Turner, Claimant, and by judgment of said court the minimum price for said land was fixed at fifty cents per acre. And whereas, I, as' sheriff aforesaid, on the 14th day of October, A. D. 1889, under and by virtue of said writ, did seise and levy upon the hereinafter described and the aforesaid property, etc., and after advertising the same for sale at public auction and outcry by posting written notices in three different public places in Hardin county, Texas, one of which was at the courthouse door in the town of Kountze, for over twenty successive days prior to the day of sale, I did on the 5th day of November, A. D. 1889, that being the first Tuesday in said month, and at the hour 3 p. m. on said day did sell at public auction at the courthouse door of Hardin- county, Texas, to 'John P. Irvin for the sum of fifty cents per acre, aggregating six hundred and forty dollars, that being the highest and best bid offered for same, the following described tract of land, to wit: • Twelve hundred and eighty acres originally granted to Duncan Buchanan by the republic of Texas, on 6th day of May 1841, by patent No. 115, vol. 1, as recorded in the General Land Office; said land lying and being in Hardin county, Texas.”

The order confirming the sale was made October 2, 1890, and reads as follows:

“On this day came on to be heard the report and return of the sheriff upon the order of sale issued herein in due form of law on, to wit, the 14th day of October, A. D. 18S9, and it appearing to the court that the order of sale issued herein under the judgment heretofore made in this cause at a former term of this court was issued in due form of law, and that the same was by the sheriff of said Hardin county levied upon the land described’ in plaintiff’s petition, and that the proper legal notice of said levy and the time when said land should be sold was made as required by law, and that said land was sold by said sheriff at a price not less than the minimum price per acre fixed by the court in the judgment escheating said land to the state, to wit, the sum of fifty cents per acre, entered at a former term of this court, and it further appearing that the proceeds of the sale of said land in the aggregate amounts to the sum of $640 as shown by the return and report of said sheriff, and that the legitimate costs and commissions together with the fee of $20 allowed as attorney fee to be charged up as costs, for W. H. Nall, Esa., appointed to represent the unknown defendants, and together with the judgment recovered by S. B. Turner herein for the sum of $75 to be paid out of said proceeds, all of which amounts to a sum total of $252.30, leaving the sum of $387.70 in the hands of said sheriff as net proceeds from said sale. It is ordered by the court that the said report be in all things approved and said sale confirmed to said purchaser, and that the sheriff pay over without delay to the proper officer the said net proceeds in such manner as provided by law. The printers’ fee of $15 having been heretofore paid by the state, this sum also to be paid in the treasury of state.”

The docket entry is as follows:

“No. 248, State of Texas v. All Persons Interested in the Estate of Duncan Buchanan. Kind of action, escheat. Date of filing, September 14, 1886.”

The entry reading:

“Judgment escheating the land, minimum price fixed at 50 cents per acre. Defendant recovered amount of $75 taxes paid to be paid out of the proceeds of sale of land, and W. H. Nall, .attorney, appointed by the court to defend suit, allowed a fee of $20, to be taxed as costs to come out of the proceeds of land. Dated March .21, 1889.”

Proceedings under our statutes relating to escheat, when regular, vest the title ■to the property sold in the purchaser re.gardless of the fact that there may have been heirs of the person whose property is ■escheated. The judgment is conclusive evi- ■ dence of the state’s title in the land against .all persons interested in the estate. 'When ■the notice required by statute has been .given, the court has jurisdiction to try the ■ case. “The object of such proceeding is not simply to have a decree declaring the es--cheat, and vesting the title in the state, but by. and through process, to be issued under ■the judgment, to divert not only the title of persons entitled to take property of the • deceased as his heirs, if perchance any such there be, but also by a sale to divest the title of the state, and to start and confer ■ upon the purchaser a new title deraigned .directly from the sovereignty of the soil.” After the property is sold under a valid ■ decree, the claim of the person who might .have taken it .as heir, devisee, or legatee is .against the proceeds of the property, which must be paid into the state treasury. There is therefore no merit in appellants’ contention that the land could not escheat because upon the instant of Duncan Buchanan’s • death it vested in his heirs. Assignments 1 and 2 are overruled. In support of our holding, we cite the cases of Wiederanders v. State, 64 Tex. 133; Hamilton v. Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. Ed. 697.

The third .assignment reads as follows:

“The court erred in holding, in substance, ■ that the escheat proceedings, as offered in evi- . dence by .the plaintiff, divested the title to the property in controversy out of the estate of J. P. Buchanan, and instructing the jury to return a verdict for the plaintiff, because the ■.-plaintiff failed .to .introduce in evidence or to show the issuance of any legal order of sale or execution authorizing the sale of the property by the sheriff under the judgment in the escheat proceedings, and offered no proof to show the loss of the execution docket of the court wherein said proceeding was pending; said order of sale and execution being essential to the validity of the sale by the sheriff.”

No proposition is submitted under said assignment, and it is very doubtful whether it should be considered; there being apparently an effort to raise two or more questions. The contention sought to be made therein appears to be that the court erred in instructing a verdict for plaintiff because plaintiff failed to introduce in evidence or to show the issuance of any legal order of sale. Plaintiff did not introduce in evidence the order of sale for the reason that it was lost. The court did not err in refusing to require plaintiff to do what was impossible. Plaintiff did show the issuance of the order of sale by the recitals in the sheriff’s deed and in the order confirming the sale. No objection was made to such recitals, and, the papers being lost, it must be held that they are sufficient to show that a valid order of sale was issued. Hill v. Templeton, 29 S. W. 535; Tompkins v. Creighton-McShane Oil Co., 160 Fed. 303, 87 C. C. A. 427.

It seems that appellants are seeking, not only to question the effect of the recitals as evidence, but also their admissibility, although no bill of exceptions appears in the record showing that the objection now urged was presented in the trial court, and overruled, and that exception was then saved to such ruling. Appellants say no proof was offered to show the loss of the execution docket, and we are left to infer that for such reason the recitals should not have been admitted in evidence. The question is not presented so as to require a ruling thereon; but, if it had been properly raised, we would hold that the issuance of the order of sale provided for in article 3197 (Statutes of 1911) is not required to be noted in the execution docket. The assignment is overruled.

At the time the notices of sale were posted, as recited in the sheriff’s deed, our statute did not require that notice of the 'sale of real estate under execution should be given by publishing the same in a newspaper. While the Acts of 1879, p. 152, provided for notice of the sale of land to be published in a newspaper upon written request of the defendant, it was not until the act of 1893 (Gammel’s Laws, vol. 10, p. 441) that it became mandatory to advertise such sales in newspapers. We are therefore unable to see any merit in appellants’ fourth assignment, wherein the contention is made that notice of the sale was not given as required by law.

The fifth assignment is based upon the refusal of a requested charge relating to the damages sought to be recovered by defendants in their cross-action. As the assignments complaining of the giving of a requested instruction in favor of plaintiff have all been overruled, it follows that said fifth assignment must be overruled.

The judgment is affirmed.
      <S&wkey;:For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes