author: LETS’, J.

text:
    COLLIN COUNTY NAT. BANK v. TURNER et al.
    (No. 1302.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 23, 1914.
    Rehearing Denied May 7, 1914.)
    1. Banks and Banking (§ 171) — Collections — Liability for Wrongful Acts.
    Where a bank, which received and accepted drafts with bills of lading attached, indorsed in blank by the shipper, with the shipper’s written instructions that they should be delivered to the S. Company upon payment of the drafts, in violation of the instructions and without authority permitted the hills of lading to be detached from the drafts and attached to different drafts drawn by the S. Company on a third party, thereby placing the apparent legal title to the shipment in the S. Company and enabling and causing its creditors to attach and sell the shipment as its property, it was liable as for conversion for the damages thereby occasioned the shipper.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 697-617; Dec. Dig. § 171.]
    2. Limitation of Actions (§ 127) — Computation of PERIOD of Limitation — Amendment of Pleadings.
    Where, in an action against a bank receiving drafts for collection, which in violation of its instructions detached the attached bills of lading and attached them to others drawn by the consignee, as a result of which the consignee’s creditors attached and sold the shipment, the original petition filed in time to stop the running of limitations alleged the facts in respect to detaching the bills of lading and the loss occasioned thereby, and was sufficient as against a general demurrer to set up default or conversion, the cause of action was not barred by limitations, though an amended petition making the allegations more specific was filed after the expiration of the period of limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. '§§ 543-547; Dec. Dig. § 127.]
    3. Limitation of Actions (§ 56) — Computation of Period of Limitation — Commencement of Period.
    Limitations would not run against the right of action of a bank which received drafts for colection against another bank to which it forwarded them and which detached the attached bills of lading and attached them to others drawn by the consignee until it paid the judgment recovered against it by the drawer.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. § 56.]
    4. Banks and Banking (§ 175) — Collections — Measure of Damages for Wrongful Acts.
    The measure of damages for the act of a bank to which drafts were sent for collection in detaching the attached bills of lading and attaching them to other drafts drawn by the consignee enabling the consignee’s creditors to attach and sell the shipment was prima facie the face of the drafts which represented to the bank’s knowledge the contract amount payable by the consignee.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 634-652; Dec. Dig. § 175.]
    Appeal from District Court, Collin County; G. R. Smith, Special Judge.
    Action by C. J. Turner against the Collin County National Bank, and another. From a judgment against it, the defendant named appeals.
    Affirmed.
    See, also, 111 S. W. 670.
    The suit is by C. J. Turner against the First National Bank of Wortham and the Collin County National Bank for damages occasioned by surrendering, contrary to instructions, a bill of lading accompanying a draft received and forwarded for collection. The petition fully averred the facts. The First National Bank of Wortham pleaded general denial, and by cross-action sought to recover against the Collin County National Bank as its agent for whatever sum it may have to pay on the plaintiff’s cross-action against it as principal. The Collin County National Bank answered both the petition and cross-action by demurrer, exceptions, and general denial, and pleaded the statute of limitations. There was a trial to the court without a jury, and judgment was entered for the plaintiff against both banks, and in favor of the First National Bank of Wortham on its cross-action against the Collin County National Bank. The appeal is by the Collin County National Bank.
    The findings of fact made by the court are warranted by the evidence, and are as follows:
    “I find that on July 29, 1905, the plaintiff shipped a car of oats containing 273 sacks, from Richland, Tex., to Breaux Bridge, La., shipper’s order, notify Southwestern Grain Company of McKinney, Tex., and that on July 31st he shipped a car of oats containing 322 sacks from Richland, Tex., to Breaux Bridge, La., shipper’s order, notify Southwestern Grain Company, McKinney, Tex., and that each of said sacks contained 4 to 4% bushels of oats, and that said oats were worth 30 cents per bushel at Breaux Bridge, La., and at Richland, Tex.; that the Southwestern Grain Company had bought said oats from plaintiff and had agreed to pay 30 cents per bushel therefor.
    “X further find that on the 31st day of July the plaintiff gave to the defendant First National Bank of Wortham two drafts, one for $296.55, the purchase price of the first car of oats, and one for $350.05, the purchase price of the last car of oats, said draft having the bills of lading attached, and that said bills of lading were indorsed in blank by plaintiff, and that plaintiff instructed said bank to collect the same and to deliver said bills of lading only on payment of said drafts. And I find that defendant -First National Bank of Wortham sent with said drafts and bills of lading written instructions to this effect, to the Collin County National Bank, which bank received said drafts upon July 31, 1905.
    “I further find that said cars of oats went to Breaux Bridge, La., and that the Collin County National Bank of McKinney, Tex., permitted the bills of lading to be detached from plaintiff’s draft without paying the same, and to be attached to the Southwestern Grain Company’s drafts on A. Steen, of Breaux Bridge, La., and that the Collin County National Bank forwarded such drafts of Southwestern Grain Company so attached to a bank at Breaux Bridge, La., for collection. I find that the drafts of the Southwestern Grain Company on A. Steen were for a greater, amount than the drafts of plaintiff.
    “I further find that after said bills of lading with the drafts of the Southwestern Grain Company attached thereto had been received by the bank at Breaux Bridge, La., the said A. Steen, to whom the Southwestern Grain Company had contracted to sell said two cars of oats, went to the bank and examined said bills of lading and drafts attached thereto, and thereafter caused the said two cars of oats to be attached as the property of the said Southwestern Grain Company on account of some indebtedness which he, the said A. Steen, claimed against the Southwestern Grain Company, and that the said two cars of oats were sold at sheriff’s sale to satisfy said claim of A. Steen against the said grain company.
    “I further find that the bank at Breaux Bridge, La., subsequently returned the said bills of lading to the Collin County National Bank, and that on the 10th day of August, 1005, the Collin County National Bank returned the plaintiff’s drafts and bills of lading to the First National Bank of Wortham, and I find that the plaintiff, Turner, received nothing from the sale of the said oats, and was paid nothing on account of said drafts, and that by reason of the act of the defendants the plaintiff lost the entire value of said two carloads of oats. I find that the oats sold as above stated at sheriff’s sale in Breaux Bridge, La., for as much as the amount of plaintiff’s two drafts.
    “I find that the market value of the oats contained in said two cars was at the above-mentioned date the sum of $640.50, and that the interest thereon from August 10, 1905, at 6 per cent., amounts to the sum o.f $305.20, making a total of $945.50, to which sum plaintiff is entitled to a judgment against each of the defendants; said judgment to bear interest from date at the rate of 6 per cent.”
    G. R. Gough, and W. R. Abernathy, both of McKinney, for appellant. R. O. Merritt, of McKinney, and W. J. Bryant, of Wortham, for appellee.

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

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

   LETS’, J.

(after stating the facts as above).

By the first assignment of error the contention is made that the petition of the plaintiff does not support a judgment in Ms favor against the Collin County National Bank. The amended petition of the plaintiff, filed July 18, 1913, and on which the case was tried, alleges, as material to be stated, that the Coffin County National Bank received and accepted drafts with bills of lading attached, and indorsed in blank by the plaintiff, from the First National Bank of Wortham, together with the plaintiff’s written instructions that the bills of lading should be delivered to the Southwestern Grain Company only upon the immediate payment of the drafts by the grain company, and that the Coffin County National Bank, in violation of the instructions, and without authority, permitted the bills of lading to be detached from the drafts and attached to different drafts drawn by the grain company on A. Steen of Breaux Bridge, La., and as so attached forwarded the bills of lading to a bank at Breaux Bridge, thereby placing the apparent legal title to the cars of oats in the grain company and enabling and causing creditors of the grain company at Breaux Bridge to attach and sell the oats as the property of the grain company. The facts found by the court are in accordance with the allegations. If the Collin County National Bank by its independent and unauthorized acts, as alleged and proven, caused the loss or conversion of the oats, it would be liable to the plaintiff as for conversion for the damages occasioned through the unauthorized acts done by it. The assignment is therefore overruled.

The second and third assignments presented the contention that the cause, of action in favor of the plaintiff was barred by limitation of two years. And by the fourth and fifth assignments the same contention is made by appellant in respect to the cross-action of the First National Bank of Worth-am. The point made is that the default on the part of the Collin County National Bank occurred, under the facts, either on July 31, 1905, or on August 10, 1905, and that the plaintiff did not set up conversion until the amended petition of July 18, 1913, and that the First National Bank of Wortham did not file its cross-action until September 16, 1907. The original petition of the plaintiff was filed on the 8th day of August, 1906, and averred the facts concerning the acts and conduct of the Coffin County National Bank in respect to detaching the bills of lading and the loss occasioned thereby. The court sustained certain special exceptions directed to the allegations, and an amended petition was then filed making more specific the allegations of the original petition. The original petition was admittedly filed within time to stop the running of limitation; and as the averments therein were sufficient, as against a general demurrer, to set up default or conversion, and asked for damages therefor, the plaintiff’s cause of action could not be said to be barred by the statute of two years’ limitation. And if it could be said that the First National Bank of Wortham was seeking on its cross-action in its own right and name to recover independently for the loss of the oats against the Coffin County National Bank, then it would not be doubted that appellant’s contention that the cross-action was barred should be sustained. But the First National Bank of Wortham is not seeking a recovery on any independent cause of action, but by the cross-action is seeking recovery only against the Collin County National Bank as its agent, for whatever sum it may have to pay on the plaintiff’s cause of action against it as principal. And in this view of the cross-action of the EJrst National Bank of Wortham, limitation would not run in favor of the Coffin County National Bank until the First National Bank of Wortham had paid the judgment against it. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518.

The sixth and seventh assignments are overruled as constituting no reversible error. See Houston v. Blythe, 60 Tex. 506.

The measure of plaintiff’s damage prima facie was the face of the drafts, which represented to appellant’s knowledge the contract amount payable by the grain company for the oats. And there is no pretense in the evidence that the amount payable by the drafts was incorrect. As a fact the court entered judgment for the market value as found by him, which was less than the face of the drafts. The eighth assignment is overruled, as showing no injury and as not warranting reversal.

The ninth and tenth assignments are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. v. WALLACE.
    (No. 1308.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.
    Rehearing Denied May 21, 1914.)
    1. Masteb and Servant (§ 286) — Actions foe Injuries — Questions for Juey.
    In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, evidence heM to make a question for the jury as to whether the freight train employés were guilty of negligence proximately causing the injury in failing to post and put out a flag at a sufficient distance to give a sufficient warning to the passenger train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1000, 1008, 1010-1016, 1017-1033, 1036-1042, 1044, 1040-1050; Dec. Dig. § 286.]
    2. Masteb and Sebvant (§ 293) — Actions FOE INJURIES — INSTRUCTIONS.
    In an action for injuries to the fireman of a passenger train, sustained in a collision with the caboose of a freight train, where the only acts ■ of negligence alleged were the failure of the freight train’s crew to side-track the train 10 minutes before the passenger train was due or, failing in that, to send back a flagman a sufficient distance to stop the passenger train before it could run into the caboose, which had broken loose from the freight train, and the only evidence offered by plaintiff as to negligence referred to these acts, an instruction that if the employés in charge of the freight train were guilty of “negligence,” as that term had been defined, in causing the two trains to run together, and if such negligence was the proximate cause of plaintiff’s injury, the jury should find for plaintiff, was not so erroneous as to require a reversal, though it did not expressly state the particular acts that might be considered by the jury as negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1166, 1158-1166; Dec. Dig. § 293.]
    3. 'Trial (§ 296) — Instructions—Errors— Cure.
    An instruction, in an action for injuries to the fireman of a passenger train, that if the employés in charge of a freight train were negligent in causing the two trains to run together, the jury should find for plaintiff, if erroneous as failing to state the acts of the freight train’s crew that might be considered as negligence, was not ground for reversal, where the special charges for both parties confined and defined the particular acts of negligence upon which the jury could make a finding.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by J. A. Wallace against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellant’s fast passenger train, known as the “Limited,” collided with the rear end of á regular freight train on the main line. Just before the collision, and about a car length before the passenger engine reached the ’ rear of the freight train, the appellee, Wallace, who was the fireman of the.passenger engine, in order to escape the danger of being caught under the engine in case of the wreck of the engine, jumped off the engine to the ground and sustained grievous bodily injuries, for which he sues. The negligence alleged in the petition is; (1) Failure on the part of the operatives of the freight train to observe the rules of the company to sidetrack the freight train 10 minutes before the fast passenger train following it was due, and, failing in that, to post and put out a flag to notify the operatives of the passenger train that the freight train was on the main line and not on the side track in the clear, and to enable the passenger train to stop in time to avert a collision; and (2) failure on the part of the employés of the passenger train to approach the station with the speed of the train reduced and under control, and in failing td keep necessary and proper lookout for flags and for the freight train. The defendant pleaded denial, contributory negligence, and assumed, risk. The verdict of the jury was in favor of the plaintiff.

       The evidence establishes that the passenger train on which appellee was the locomotive fireman was a fast train, known as the “Limited,” running north bound at the time, from Muskogee, Okl., with destination of Parsons, Kan., and was moving at the usual high rate of speed of from 40 to 60 miles an hour. Hulwe is a station on the railway between Muskogee and Parsons, and switches and passing tracks are maintained there; but it is not a station at which the Limited train stops. One mile south of Hulwe the railway crosses Big Cabin creek. The track south of Big Cabin creek is curved and is downgrade, going north to where it crosses the creek, and is upgrade from the creek to Hulwe Station. As the passenger train was approaching Hulwe, and at a point about one mile south of Hulwe, and just after the engine crossed over the creek, the engine of the passenger train ran into the caboose of a regular freight train which had previously broken loose from thé train line. The freight train was also north bound. It appears that the freight train of between 30 and 35 cars arrived at Hulwe Station about 17 minutes ahead of the passenger train, and when it slowed down for the switch the slack of the train running back caused the caboose to' break loose and roll slowly back downgrade to the creek. The conductor and a brakeman of the freight train went back to flag the passenger train. The conductor says he went back eight telegraph poles, and the brakeman, according to the evidence, went forward of the caboose about 100 yards. It was proven that rule 99 of appellant, set out in detail in the statement of facts, requires the flagman, in case of accident or obstruction of the track,, to go back with danger signals and remain at a point 20 telegraph poles, or 1,000 feet, from the rear of his train, or, when on a curve or downgrade, a distance of 20 telegraph poles further than above provided, to give approaching trains ample time to stop. There was testimony that the flagman had 13 minutes’ time in which to put out a flag before the collision occurred, and that a flagman in such time could have gone down the track the distance of 25 telegraph poles, and if he had done so in this case the engineer of the passenger train could and would have seen him and would have had time to stop the train before it struck the caboose. As the passenger train was rounding the curve just south of the bridge over Big Cabin creek, the engineer discovered the front flagman, and at once answered by two short blasts of the whistle and applied the air brakes in the emergency; but, before the train could be stopped, the collision inevitably occurred. The collision was forcible, and wrecked the caboose and damaged the engine.
    The evidence warrants the findings of fact, which are here made, that appellant through its employés was guilty of negligence proximately causing the injury in failing to post and put out a flag at proper and sufficient distance to give the approaching passenger train warning in time to avert the injury, as pleaded, and that appellee was not guilty of contributory negligence, and did not as a fact assume the risk of injury; and the amount of damages awarded by the jury is warranted by the evidence.
    Head, Smith, Maxey & Head, of Sherman, and Alex. S'. Coke, of Dallas, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

      For other cases see same topic and section NUMB15R in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   LEVY, J.

(after stating the facts as above).

The first assignment predicates error upon that part of the fourth paragraph of the court’s charge reading:

“And if you believe from the evidence that defendant’s employés in charge of said freight train were guilty of ‘negligence,’ as that term has been defined to you, in causing said two trains to run together, if they did, and that such negligence, if any, was the direct and proximate cause of plaintiff’s injury, if any, * * * you will find for plaintiff and assess his damages as hereinafter instructed, unless you find for defendant under other instructions given you.”

The objection made to the charge is that it does not refer the jury to the negligent acts alleged or the facts proven, but leaves it broadly for the jury to say whether or not negligence caused the collision. The charge does not, it is true, expressly state to the jury the particular acts on the part of "the freight crew that may be considered by them as negligently causing the collision. The charge, though,' does refer and restrict the jury to the evidence before them to determine the question of negligence on the part of the freight crew in‘respect to the collision. According to the pleading of the plaintiff, the only two acts of negligence charged against the freight crew was the failure to side-track the freight train, as required by appellant’s rule, 10 minutes before the passenger train following it was due, and, failing in that, to send back a flagman a distance far enough to stop the passenger train before it could run into the caboose broken loose from the train line of the freight train. And the only evidence offered by the plaintiff as to negligence on the part of the freight crew was in reference to the alleged acts. In view of the pleading and evidence, the charge could not properly be said, we think, to be so erroneous as to require a reversal of the case. And, further, if the court’s charge is subject to the objection of being general in respect to the issue of negligence on the part of the freight crew, it would not afford ground for reversal, for the special charges of appellee, together with the special charge of appellant, given by the court, as showii in the record, served to confine, as well as define, the particular acts of negligence that the jury could and would make the finding upon. The assignment is overruled.

The second assignment eomplains of special charge No. 2, tendered by appellee and given by the court. The special charge authorized a verdict for appellee upon the finding by the jury that the flagman sent out in this case for the purpose of flagging and signaling the operatives of the passenger engine negligently failed or refused to go back the necessary or proper distance to give the approaching passenger train ample time to stop and avoid the collision. The objection to the charge is that it measures appellant’s liability by a failure to comply with its rules formulated for conducting its business. The charge, we think, required the jury to measure the act of the flagman entirely from the standpoint of being negligence vel non, and is not subject to the objection made.

There was no error in refusing to peremptorily instruct a verdict for appellant under the evidence in this case, and the assignments numbered 3 and 4 are overruled.

Assignments Nos. 5, 6, and 7 present no error affording ground for reversal, and are overruled.

It is a fair deduction from the evidence, that the jury were authorized to make, that appellee will never be able to perform the labor of a fireman in the future, and will never have the strength in his right arm that he once had. After a careful consideration of the case, we do not feel warranted in disturbing the verdict of the jury on the amount of damages awarded. Assignment No. 8 complaining of excessive verdict, is overruled.

The judgment is affirmed.


author: HODGES, J.

text:
    GULF, C. & S. F. RY. CO. v. BRANDENBURG et ux.
    (No. 1288.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 22, 1914.
    Rehearing Denied May 7, 1914.)
    1. Wills (§ 559) — Property Disposed of— Election by Surviving Wipe.
    Where a will is uncertain as to whether testator disposed only of his own property or included that which belonged to his wife, the will will be construed to simply dispose of his estate, and the wife, taking under the will, does not thereby relinquish her fee-simple title to her community share in the property disposed of by the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1207-1209; Dec. Dig. § 559.’“]
    2. Wills (§ 559) — Construction—Property Devised.
    A will whereby testator .“lent” unto Ms wife for life all of his estate, and after her death all his property should be divided among his legal heirs, disposed only of his community interest in the estate, and the wife, electing to take under the will, did not relinquish her fee-simple title to her community share..
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1207-1209; Dec. Dig. § 559.]
    S. Tenancy in Common (§ 3) — Creation op Cotenancy — Transfer by Wife.
    Where testator devised his community interest to his wife for life, with gift over to his children, a conveyance by the wife vested in the grantee an undivided interest and made him a tenant in common with the children.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. § 3.]
    4. Adverse Possession (§ 10) — Right of Way — Acquisition by Railroad.
    Const, art. 1, § 17, providing that no person’s property shall be taken for a public use, without adequate compensation first made, does not prevent a railroad from acquiring by adverse possession title to land occupied by it as a right of way.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 58-64; Dec. Dig. § 10,]
    5. Tenancy in Common (§ 11) — Conveyance by Tenant — Rights of Grantee as Against Cotenants.
    Where a grantor conveying a permanent •easement or a title had only an undivided interest, the grantee taking possession could assert only the rights of a tenant in common; but his right to retain possession could not be made dependent on payment of the entire value of the land.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 23, 28; Dec. Dig. § 11.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by B. F. Brandenburg, Sr., and wife, •against the Gulf; 'Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, Lee & Lomax, of Ft. Worth, and E. M. Browder, of Dallas, for appellant. W. H. Clark, of Dallas, for appellees.

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

   HODGES, J.

The appellees, Brandenburg ■and wife, brought this suit in the form of an action of trespass to try title to recover two tracts of land described as 320 acres of the Sharrock survey and 23 acres of the Bledsoe survey situated in Dallas county. The appellant disclaimed as to all of the land described in the petition, except a strip 100 feet wide running through the two tracts, and used as a railroad right of way. It was alleged- by the appellant that on the 8th day of April, 1881, its predecessor, the Chicago, Texas & Mexican Central Railway Company, acquired this strip of land by purchase from Mrs. M. C. Merrifield. It also pleaded a title to the land, and to the right of way as an easement, by prescription based upon an adverse claim and possession for more than ten years.

The evidence adduced upon the trial shows that the two tracts of land referred to were formerly owned by Wm. Merrifield and his wife as a part of their community property. Merrifield died in 1880 and left a will, from which we quote the following as the only portions material to be here considered:

“And whereas, the property which I now possess have been chiefly acquired by thé joint industry of my dear wife, Martha Catherine, and myself, I therefore, the better to enable her to live with convenience and comfort, do therefore, by this my last will and testament, lend unto my said wife during her natural life all of my estate without reserve, both real and personal, and after the death of my wife, Martha Catherine Merrifield, I then wish and devise an equal division of all my property, both real and personal, among all my legal heirs,- and lastly my express will and meaning is, and I do hereby order and desire if any difference, dispute, question or controversy shall be named, arise or happen concerning my gift, bequeath or other matter in this my last will and testament, that then no suit or suits in law or equity, or otherwise, shall be brought, commenced or prosecuted for and concerning the same, but the same shall be referred wholly to the award and determination of fay friends, and what they shall order, direct or determine therein shall be binding and conclusive to all and every person and persons therein concerned. My desire and intention is that no action be taken in the probate or county court in -relation to the settlement of my estate further than the probate and registration of this my last will and testament and the return of an inventory of the estate and also that no security be required of my executrix but that she have full control of my whole estate. And, lastly, I do hereby constitute and appoint my dear wife, Martha Catherine Merrifield, my sole executrix of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament.”

At bis death Merrifield left eight children surviving him. On the 8th day of April, 1881, Mrs. Merrifield executed a conveyance, which is as follows:

“The State of Texas, County of Dallas.
“Know all men by these presents, that for and in consideration of the enhanced value to be given, and is contemplated to arise to my lands and other property, by the location and construction of the Chicago, Texas & Mexican Central Railway, and for the consideration of one hundred and fifty-six ($156) dollars to me in hand paid, the receipt of which is hereby acknowledged, I, Margaritt C.' Merrifield, of the county oí Dallas and state oí Texas, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, to the Chicago, Texas & Mexican Central Railway Company a strip of land one hundred feet in width over the tracts of land particularly described as follows, viz.: A tract in Dallas county, state of Texas, known as part of the ■original headright of Geo. W. Sharrack, patented to himself, for three hundred and twenty acres on Five-Mile creek 8% miles south 40 west from the city of Dallas, and purchased by William Merrifield of John M. Froman, who purchased of said Sharrack, and which_ 1 hold under the last will and testament of said Mer-rifield, being the same upon which I now reside ; reference being made for a more certain description of said strip of land to the map of the route of said company on file in the office of the said railway company.
“To have and to hold said above-described strip of land as a right of way for the said Chicago, Texas & Mexican Central Railway, with all the rights, privileges, and easements incident thereto, or in any wise connected therewith, to the said Chicago, Texas & Mexican Central Railway Company, its successors and assigns forever. And I, the said M. C. Merri-field, for myself, and my heirs, do covenant and agree that 1 will warrant and defend the above-granted right of way in the quiet and peaceable possession of the said Chicago, Texas & Mexican Central Railway Company, its successors and assigns forever.”

Then follow some immaterial conditions.

The Chicago, Texas & Mexican Central Railway Company was a Texas corporation, authorized to acquire and hold lands for railway purposes. In November, 1882, Mrs. Mer-rifield died intestate, and was survived by her children. During the years 18S1 and 1882, and prior to the death of Mrs. Merri-field, the Chicago, Texas & Mexican Central Railway Company constructed its line of railway from Cleburne to Dallas, passing over the two tracts of land before referred to, and continuously operated trains over that line until about the 10th day of July, 1885, at which time It conveyed all of its interest and right of way, including that acquired from Mrs. Merrifield, to the appellant, the Gulf, Colorado & Santa FS Railway Company. From the date of that conveyance the appellant has continuously made a similar use of the property. Mrs. Brandenburg is a daughter of Wm. and M. C. Merrifield, and after the death of the latter Brandenburg purchased the interests of the other heirs in the Mer-rifield estate. Brandenburg testified that the railway company fenced its right of way about the year 1895; that prior to that time he used all of the land, including the right' of way, as a pasture for his stock. It is to be inferred from his testimony that the right of way was within his general inclosure. He also stated that, after the right of way was fenced, he used a part of it as an orchard; that he had planted a number of fruit trees inside of the railway inclosure. It also appears .from Brandenburg’s testimony that for several years after the death of Mrs. Merrifield there was some dispute between him and the officers of the railway company as to who owned the right of way. He states that in more than one conference with those officials they conceded that he was entitled to an undivided half interest in that land, and that they offered to purchase this interest. No settlement, however, was ever made, and this suit resulted.

The court concluded, as a matter of law, in substance as follows: (1) That the will of Wm. Merrifield undertook to dispose of the entire community estate of himself and wife. That Mrs. Merrifield, by accepting under the will, was estopped from claiming more than a life estate in the land, and that her conveyance to the Chicago, Texas & Mexican Central Railway Company in legal effect transferred only her life interest in the strip of land used as the right of way. (2) That under the Constitution of Texas a railway corporation cannot acquire by limitation the fee-simple title to land for right of way purposes.

The court then submitted to the jury the following interrogatories, which we quote together with the answers returned:

“First Question: Was the possession of the Gulf, Colorado & Santa Fé Railway Company to the 100-foot strip of land described in its answer exclusive _ (as the term ‘exclusive’ has been defined herein) for ten years next preceding the filing- of this suit in 1904? Answer: No. John F. Giles, Foreman.
“Second Question: Was the possession of said railroad continuous to the 100-foot strip of land described in its answer for ten years next preceding the filing of this suit? Answer: Yes. John F. Giles, Foreman.
“Third Question: Did said railroad assert adverse claim of right, as that term is above defined for you by the court, to 'the said 100-foot strip of land for ten years next preceding the filing' of this suit? Answer: Yes. John F. Giles, Foreman.
“Fourth Question: Did the said railroad make to the plaintiffs any claim of title to the said 100-foot strip of land during the ten years next preceding the filing of this suit? If so, what interest did defendant claim? Answer: Yes; all of the 100-foot right of way. John F. Giles, Foreman.
“Fifth Question: Did said railroad recognize that plaintiffs had any title in and to said 100-foot strip of land for and during the ten years next preceding the filing of this suit? Answer: No.
“If so, what, interest in said strip of land did it recognize plaintiffs owned? Answer: None. John F. Giles, Foreman.
“Sixth Question: Did plaintiffs use said strip of land from the time said railroad was built, in 1881 or 1882, until it was fenced in by the railroad, in 1892 or 1894? If so, how and when? Answer: Yes; by grazing. John' F. Giles, Foreman.
“Seventh Question: Did plaintiffs use said 100 (foot) strip of land from the time it was fenced in until the filing of this suit? Answer: Yes; part of it.
“If so, how and when? Answer: As orchard entire time. John F. Giles, Foreman.”

There were seven other interrogatories propounded and answered; but they relate to the value of the land, and to the amount of damages occasioned by the construction of the road and the appropriation of the right of way. Those are matters not material to be here considered.

Upon the answers above given the court rendered a judgment in favor of the appel-lees for the title and possession of the land sued for. But it was further ordered:

“That the defendant, by paying into the registry of the court for the plaintiffs $991.75 within 30 days from the date this judgment becomes final, with 6 per cent, interest thereon frpin date until paid, shall thereupon he entitled to hold and use said right of way, the same as if it had lawfully condemned same; otherwise the judgment above in favor of the plaintiffs to said strip of land shall remain in full force and effect.”

It is contended by the appellant that the court erred in holding that Mrs. Merrifield, by taking under the will, relinquished her fee-simple title to her community share in the property, and was thereafter entitled only to an estate for life. This construction limited the interest conveyed to appellant’s predecessor by Mrs. Merrifield’s deed to an estate which expired at her death.

The first question, then, to be considered is: Did the court err in the construction placed upon the will? In cases of this character, in order for the wife to be put to an election, the intent of the husband to dispose of her community interest must be clear and explicit. Where the language used is ambiguous and leaves it uncertain as to whether the testator is referring only to his own interest or intends to include that which belongs to his wife, the instrument should.be considered as referring to that Interest which the testator might lawfully dispose of. Carroll v. Carroll, 20 Tex. 743; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25; Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569; 1 Pomeroy Eq. Jur. §§ 472, 493.

In the instrument here under consideration the testator designates the property disposed of by no particular name or specific description. He simply refers to it as “the property,” “the property which I now possess,” “all my estate,” “all my property, both real and personal,” “my estate,” “my whole estate.” The will makes it «dear that the testator intends to give to his wife during her natural life all of his estate, passing it to his children or heirs after her death. In the absence of language more specific, we must presume that Merrifield was referring to that which was in fact his property—his community interest in the estate. Sauvage v. Wauhop (Tex. Civ. App.) 143 S. W. 260; Haby v. Euos (Tex. Civ. App.) 25 S. W. 1121; Moss v. Helsley, 60 Tex. 432; Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648. We also refer to the oases previously cited.

It follows from this conclusion that the conveyance executed by Mrs. Merrifield invested the Chicago, Texas & Mexican Central Railway Company with an undivided interest to at least a permanent easement in so much of the right of way as was included in the Sharrock survey. This made the appellant, as successor to that company, a tenant in common with Brandenburg, to the extent of the easement in the strip claimed, and clothed it with all the rights of possession which a tenant in common might claim.

We come, then, to the consideration of the next question: Did the court err in concluding, as a matter of law, that the appellant, being a railway corporation, could not acquire by adverse possession the fee-simple title to the land occupied as a right of way? The conclusion of the court upon this proposition appears to be based upon section 17 of article 1 of our state Constitution. That part applicable is as follows:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money.”

This provision against taking private property for a public use has reference to the taking of private property by the state, or through some of its authorized agencies or corporations, under the power of eminent domain. Norris v. City of Waco, 57 Tex. 635. “Taking” property, as used in the section of the Constitution referred to, includes the permanent subjection of such property to a public easement, as well as to a transfer of the fee-simple title. G., C. & S. F. Ry. Co. v. Lyons, 2 Willson, Civ. Cas. Ct. App. § 139. Hence, if this provision of the Constitution prohibits railway corporations from acquiring the fee-simple title to property by limitation or prescription, it would for the same reason prohibit them from acquiring a permanent easement. The acquisition of either would amount to a “taking” of private property within the meaning of the Constitution. It also follows that, if this provision of the Constitution bars railway companies from acquiring property by limitation for right of way purposes, because they may invoke the state’s right of eminent domain and condemn land, municipalities having the same authority should also be subject to the same restriction. The following cases, however, show that counties may acquire such rights to establish highways over private property by limitation, notwithstanding they are authorized to condemn land for that purpose: Click v. Lamar Co., 79 Tex. 124, 14 S. W. 1048; City of Austin v. Hall, 93 Tex. 596, 57 S. W. 563. In the trial below the court recognized that the railway company could acquire title to ‘an easement over the land in controversy by prescription, and submitted to the jury those issues. In doing this he recognized as correct the principle of law which warranted the submission of the issues relating to the acquisition of the title itself by adverse possession, if the evidence was sufficient.

Our conclusion is that the undisputed evidence in this case establishes the right of the appellant to a permanent easement to the extent of an undivided one-half interest in so much of the strip of land as is contained in the Sharrock survey. Mrs. Merrifield was herself but a joint owner, with her children, of the fee in these tracts of land, and she had no authority to convey for a time extending beyond her life any rights to any specific portion of the property. Her interest being undivided, her deed conveying a permanent easement or the title to any described portion, such as the right of way, would be void as to her co-owners. But her grantee acquired such rights as she had in the land, to the extent described in the conveyance, and became a tenant in common with the children upon her death. As such ■tenant her grantee could assert all the rights belonging to a co-owner as to possession, and would be entitled, in a partition, to have this particular land set apart to it, if this could be done without injustice to the other joint owners.

Whether or not the appellant acquired any rights in the Sharrock survey by adverse possession must be determined by the rules applicable to tenants in common. Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508.

What has been said relative to Mrs. Merrifield’s conveyance applies only to the Sharrock survey. That portion of the land in controversy which lies in the Bledsoe survey belongs to the appellees, unless the appellant has acquired some rights by prescription. Whether or not that has been accomplished is an issue of fact to be determined by the jury. All of the findings upon that issue made by the jury were favorable to the appellant, except as to the exclusiveness of its possession. The title and right of possession of the entire strip 100 feet wide through both tracts being involved, we cannot say the court erred in not instructing a general verdict for the appellant. It may be that appellees are entitled to recover the title, but not the possession. We think the court erred in making the retention of the possession by the appellant dependent upon the payment of the valué of all of the strip of land. That disposition of the case ignored the rights which appellant acquired through the conveyance from Mrs. Merrifield.

The judgment will therefore be reversed, and the cause remanded for another trial.


author: TALBOT, J.

text:
    KEY et al. v. KEY.
    (No. 7139.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    Rehearing Denied May 23, 1914.)
    1. Pleading (§ 214) — Demurrer oe Plea to Jtjeisdiction — Admissions.
    Defendant, demurring or pleading to the jurisdiction of the court, admits the facts charged in plaintiff’s petition to be true, and only denies that they present a case within the jurisdiction of the court.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    2. Couets (§ 19S) — Jurisdiction—Probate Jurisdiction.
    Under Const, art. 5, § 8, conferring on the district court original jurisdiction of suits for trial of title to land, and appellate jurisdiction and general control in probate matters over the county court, the district court has original jurisdiction of a suit by heirs against an admin-istratrix guilty of mismanagement of the estate, and fraudulently converting a part thereof, and neglecting for many years to settle the same, and praying for a determination of title as to the community property of the estate of decedent and for an accounting and partition.
    [Ed. Note. — Eor other cases, see Courts, Cent.^ Dig. §§ 469, 471-475, 478; Dec. Dig. §
    3. Courts (§ 155) — Jurisdiction—Probate Jurisdiction.
    The district court has jurisdiction of a suit by heirs against the administrator of decedent in actual possession, and denying the right of the heirs and asserting an adverse and hostile claim to the property, because title to land is involved within Const, art. 5, § 8.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 378, 402% ; Dec. Dig. § 155.]
    4. Courts (§ 155) — Jurisdiction—Probate Jurisdiction.
    Where title to personal property, or the construction of a will, is involved, it is proper to invoke the jurisdiction of the district court to adjudicate the questions.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 378, 402%; Dec. Dig. § 155.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by W. A. Key and others against R. E. Key individually and as administrator of R. C. Key, deceased. Erom a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    W. J. Weaver and Simkins & Simkins, all of Corsicana, for appellants. McClellan & Prince and Neblet & Rice, all of Corsicana, for appellee.

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

   TALBOT, J.

This suit was instituted by the appellants against the appellee, R. L. Key individually and as administrator of the estate of R. C. Key, deceased. It is alleged, in substance, that the appellants and appellee are the surviving heirs of the said R. C. Key, and as such are the joint owners in fee simple of two tracts of land, which are described, situated in Navarro county, Tex., aggregating 214 acres; that the ap-pellee, R. L. Key, was appointed administrator of the estate of the said R. C. Key, deceased, in 1877; that said administration was still pending, but that there was no necessity therefor, as there were now no debts against said estate; that appellee had made to the county or probate court but two reports, showing the condition of said estate, since his appointment in 1877, and that he had been guilty of gross negligence and mismanagement of the property of said estate; that during his administration he had not kept any account of the fruits, revenues, and rents arising from the property in his possession, and that he had appropriated an,d fraudulently converted the same, amounting to about $8,000; to his own use; that there was due the. estate at the time of appellee’s appointment collectible accounts amounting to the sum of $2,000, but that through, his negligence to collect the same, or because of fraudulently leaving out said accounts from his report filed and the conversion and embezzlement of the same by him, the estate has been deprived of that amount. Appellants further charge that on or about the 10th of December, 1869, R. 0. Key, the deceased, bought, for a cash consideration paid by him 10 acres of land, a part of the Robert Einney headright survey, in Navarro county, Tex., which was inventoried by ap-pellee as a part of the estate of the said R. C. Key, and that appellee, as administrator of said estate, applied to the county court of Navarro county for authority to sell said land to satisfy a fraudulent and fictitious debt, which appellee claimed said estate owed him, amounting to $661.16, with interest ; that in February, 1888, the court heard said application, and ordered the property to be sold; that no report of the sale of said property was ever reported to the court, and that appellee has suppressed all evidence as to its disposition, and is now attempting to cheat, defraud, and deprive the estate of said property as an asset. Appellants further allege that since the death of Mrs. Mariah Key, the wife of R. O. Key, and who died April 30, 1912, the defendant,- who was in possession, has been asserting title in himself to at least one-half, if not all, of said property belonging to the community estate of R. O. Key and his wife, Mariah Key; that said assertion of title in himself is antagonistic to the rights of these plaintiffs in and to said property; that they had, since the death of Mrs. Mariah Key, demanded of the defendant a partition, and an accounting for the use of said property, but that he has failed and refused to comply with said demand, and is now asserting a claim to said property which is hostile to the claim of these plaintiffs. The prayer of the petition is that the court adjudicate only the issue of title as to the community property of the estate of R. C. Key, but that if the court should think it advisable to settle and adjudicate all issues raised, then they pray for an accounting and partition, etc. Appellee, R. L. Key, interposed a general demurrer to the petition, and excepted thereto, because it appeared therefrom that the district court was without jurisdiction to try the cause for the reason that appellants had alleged that the defendant was the administrator of the estate of R. C. Key and wife, Mariah Key, and that the property sued for was still undergoing administration in the probate court. He then interposed a general denial, and pleaded that he was not guilty of the wrongs and trespasses and injury complained of, and put himself upon the country. Defendant further averred that:

“He now has and has had peacéable and adverse possession by an actual inelosure of the lands and tenements mentioned in plaintiffs’ petition, cultivating, using, and enjoying the same for a period of 10 years, after plaintiffs’ cause of action accrued and before the commencement of this suit; that all causes of action set out in plaintiffs’ petition for the recovery of personal property or for a personal judgment against this defendant accrued more than 2 years and more than 4 years before the commencement of this suit.”

Defendant also alleged that “he has made valuable and permanent improvements on the lands and tenements sued for during the time he has had possession thereof, and has regularly paid taxes thereon for 36 years,, improvements and taxes aggregating the sum of $1,679.71,” and prayed judgment for same, and that said sum be fixed as a lien on the land in his favor in the event plaintiff recover the land or any part thereof. On October 21, 1913, the defendant’s general demurrer to plaintiffs’ petition, under which the defendant excepted to the jurisdiction of the court to hear and consider the matters alleged in plaintiffs’ said petition, was sustained and the cause dismissed. From this judgment the plaintiffs appealed.

Appellants’ first assignment of error complains of the action of the trial court in sustaining the defendant’s demurrer, and presents the controlling question arising on the appeal. It is too well settled to require the citation of authorities that defendant’s demurrer or plea to the jurisdiction of the district court admitted the facts charged in plaintiffs’ petition to be true, but denied that they presented a case that would give jurisdiction to that court in an original action. The question, then, is, Do the facts alleged by plaintiffs show a cause of action of which the district court had original jurisdiction to hear and determine? That this question should receive an affirmative answer is, we think, clearly established by the laws and decisions of our state.

While the district courts of this state, since the adoption of the Constitution and probate laws of 1876, which left out the words, “original jurisdiction,” have only an appellate jurisdiction and general control over probate courts, as shown by article 5, § 8, of that instrument, yet by this same article and section, original jurisdiction and general control over executors, administrators, guardians, and minors, under such regulations as may be prescribed by law, is conferred upon district courts. And in Chevallier v. Wilson, 1 Tex. 160, where the Constitution invested the district courts with original jurisdiction and control over executors and administrators in the same language as does our present Constitution, it is said that this grant of jurisdiction is complete, subject to legislative regulations, and is not impaired because these regulations have not been made. In Long v. Wortham, 4 Tex. 382, and reaffirmed in Giddings v. Steele, 28 Tex. 733, 91 Am. Dec. 336, it was held, under fhe clause of the Constitution giving original jurisdiction over executors, administrators, etc., that the district court might suspend any executor and appoint a receiver, with power to sue and collect a note given to an executor in his representative capacity. In Dobbin v. Bryan, 5 Tex. 276, it was decided that the district courts have jurisdiction to investigate and arrest a fraudulent combination which might result in destroying the estate or to the injury of those interested in the faithful administration of the estate; that from its organization the probate court, being so limited in its jurisdiction, cannot well investigate the facts constituting the fraud, and that the same difficulty would arise in the investigation of and executing trusts. In Smith v. Smith, 11 Tex. 102, the jurisdiction of the district court to hear and determine a suit by an heir, pending administration in the probate court, to establish the property of the estate, and to obtain a partition and distribution, 'was upheld, and the court, after stating that it was held in Dobbin v. Bryan, supra, that fraudulent combination had always been a fruitful source for the exercise of equity jurisdiction, said:

“There can be no doubt but both fraud and trusts would authorize the exercise of original jurisdiction by the district court.”

In this case it is further said that in Newson, Guardian, v. Chrisman, 9 Tex. 113, the previous decisions of the Supreme Court were reviewed and sustained upon the grounds of the general equity jurisdiction of the district court, independent of the fifteenth section of the judicial department of the Constitution. In Rogers v. Kennard, 54 Tex. 30, referring to the case of Smith v. Smith, supra, it is said:

“In that case the chancery jurisdiction of the district court was clearly maintainable on the grounds of breach of trust and fraud, and because the probate court was inadequate to grant the appropriate relief.”

■The facts and circumstances of delay, fraud, and trust, appealing for the exercise-of the general equity jurisdiction in the case of Smith v. Smith, were but little, if any, stronger than those alleged in the ease at bar; and, upon the authority of that and other cases referred to, we think appellee’s demurrer to appellants’ petition should have been overruled.

But again, the .jurisdiction of the district court, in our opinion, is clearly maintainable on the ground that the title to the lands described in appellants’ petition was involved. As shown in our statement of the case appellants alleged, in substance, that they and appellee, as the heirs of R. C. Key, deceased, were the joint owners in fee simple of the lands mentioned in their petition, and that appellee, who was in actual possession thereof, was denying their right and asserting an adverse and hostile claim to all of -said property. In his answer to appellants’ suit the appellee contested their title and set up title in himself by adverse possession and limitation of ten years. In such a case the district court is unquestionably the proper court to adjudicate the question. And, even where the title to personal property or the construction of a will is involved, it is proper to invoke the jurisdiction of the district court, as the more appropriate tribunal for the adjudication of the question. Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242.

This view of the case makes it unnecessary to consider the other assignments.

The judgment is reversed, and the cause remanded.


author: RICE, J.

text:
    MECHANICS’ & TRADERS’ INS. CO. v. DAVIS.
    (No. 5340.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.
    Rehearing Denied May 13, 1914.)
    1. Insurance (§ 328) — Forfeiture—Change in Interest.
    Under the clause of a fire policy voiding it in the event of any change in the interest, title, or possession of the subject-matter of in-? surance, insured having, before the fire, without knowledge of or notice to the insurer, taken in partners in his business, received part of the purchase price, and put one of the purchasers in possession, it is immaterial that he retained a lien on the goods for balance of pur-“ chase money, or that after the fire he settled with his partners, and paid back part of the purchase money.
    [Ed. Note. — For other cases, see Insurance Cent. Dig. §§ 794-S22, 825; Dec. Dig. § 328.]
    2. Insurance (§ 335) — Foeeeituke—Failure to Take Inventory.
    An invoice of goods bought during three months, some time before issuance of a fire policy, does not satisfy a provision of the policy that it shall become void, if a complete, itemized inventory be not taken within a certain time, unless one has been taken within a certain time prior to the policy.
    [Ed. 'Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dee. Dig. § 335.]
    Appeal from McLennan County Court; > George N. Denton, Judge.
    Action by R. E. Davis against the Mechanics’ & Traders’ Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Wm. Thompson and Will - C. Thompson, both of Dallas, for áppellant. J. D. Willis, of Waco, for appellee.

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

   RICE, J.

This suit was brought by ap-pellee against appellant to recover for a loss sustained by fire to a stock of electrical fixtures, supplies, and fittings covered by a policy of insurance issued by it to him. The defense urged, after a general denial, was failure on the part of appellee to comply with the iron-safe clause in the matter of taking, preserving, and presenting after the fire the inventories required by the policy, and in failing to keep a set of books, showing a complete record of business transactions, and that appellee was not the sole and unconditional owner of the property insured, in that he had sold a two-thirds interest therein prior to said Are, and that a change had therehy taken place in the interest, title, and possession of the subject of insurance, in violation of the terms of the policy. A jury trial resulted in a verdict and judgment in behalf of appellee in the sum of $829.60, from which, this appeal is prosecuted.

Appellant requested, and the court refused to give, a peremptory instruction to find in its favor, and this refusal is made the basis of several assignments of error, among them the fifth, because, among other reasons, the undisputed evidence showed that a change had taken place in the interest, title, and possession of the subject-matter of insurance, in that on December 9, 1912, appellee sold to G. H. Peters and R. S. Martin an equal partnership interest with him in the goods covered by the contract declared upon, accepting a part of the consideration of such sale, and placing one of said parties in charge of the Waco stock, the goods here involved.

The law seems to be well settled that, under a policy of fire insurance providing for the avoidance thereof in case of change of interest, title, or possession in the subject of .insurance, that no recovery can be had thereon in the event of loss, where such change has .taken place. The policy contained a clause, in substance, to the effect that, unless otherwise provided by agreement indorsed thereon, it should become void in the event of any change, other than by death of the insured, in the interest, title, or possession of the subject-matter of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise. The uneontradicted evidence showed that prior to the fire appellee had sold a two-third interest in his business to G. H. Peters and R. S. Martin, accepting a part of the consideration therefor, and placing the former in charge of his Waco house, of which appellant had no notice or knowledge. We think this sale was in direct violation of the contract of insurance, and defeats ap-pellee’s right to recover thereunder. See Insurance Co. v. Ransom, 61 S. W. 144; Assurance Co. v. Bank, 18 Tex. Civ. App. 721, 45 S. W. 737; Foundry Co. v. Assurance Co., 135 Mich. 467, 98 N. W. 9, 3 Ann. Cas. 707; Drennen v. Assurance Co. (C. C.) 20 Fed. 657; Insurance Co. v. Riker, 10 Mich. 279; Malley v. Insurance Co., 51 Conn. 222; Osborn v. Insurance Co., 151 Ill. App. 126; Card v. Insurance Co., 4 Mo. App. 424; Royal Ins. Co. v. Martin, 192 U. S. 149, 24 Sup. Ct. 247, 48 L. Ed. 385; Widincamp v. Insurance Co., 4 Ga. App. 759, 62 S. E. 478; Insurance Co. v. Quinette, 36 Okl. 384, 128 Pac. 722; Insurance Co. v. Insurance Co., 144 N. Y. 195, 39 N. E. 78, 26 L. R. A. 591, 43 Am. St. Rep. 749; Bacot v. Insurance Co., 96 Miss. 223, 50 South. 732, Ann. Cas. 1912B, 262; Robinson v. Insurance Co. (Ky.) 53 S. W. 660.

This was a complete, and not an execu-tory, contract of sale as contended by appel-lee, nor is it material, as he contends, that he retained a lien to secure part of the purchase money on said property. Assurance Co. v. Bank, supra. The legal title, by reason of the sale, immediately vested in his partners, and they could have enforced the contract as' against him. This being true, there was a complete change in the interest, title, and possession of the property. Nor is it material that subsequent to the fire he had a settlement with his partners, by which he paid back to them part of the purchase money received, because after the fire he could do nothing that would defeat appellant’s right to insist on a forfeiture on account of such breach of the contract by him. Hence it must be held to have avoided the same under the provisions thereof above quoted.

It is also urged by the first assignment that, where the contract of insurance stipulates that a complete itemized, inventory shall be taken within 30 days after the issuance thereof, unless one had been taken within 12 calendar months prior thereto, the policy becomes void, and no subsequent loss can be recovered thereunder. The policy contains the following provisions:

“First. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days after the date of this policy, or, in each and either case, this entire policy shall be null and void.”

The policy was issued August 19, 1912, at which time appellee had been in business less than 12 months. The first inventory was taken in November, 1912. It is contended, however, on the part of appellee that there was an inventory taken in April before the policy was issued; but this contention is not supported by the record, because the paper that he contends was an inventory merely had incorporated therein the invoice of goods purchased during the months of April, May, and a part of June. This is not such a complete, itemized inventory as the law contemplates. See Fire Ins. Co. v. Adams, 158 S. W. 231; Nat. Union Fire Ins. Co. v. Walker, 156 S. W. 1095; Dorroh v. Insurance Co., 104 Tex. 199, 135 S. W. 1165, and cases cited; Id., 126 S. W. 616, and cases cited; German Ins. Co. v. Bevill, 126 S. W. 31; Nat. Ins. Co. v. Caraway, 130 S. W. 458; Royal Ins. Co. v. Kline Bros. & Co., 198 Fed. 469, 117 C. C. A. 228; Southern Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Reynolds v. German-Amer. Ins. Co., 107 Md. 110, 68 Atl. 262, 15 L. R. A. (N. S.) 345; Mercantile Co. v. Insurance Co., 114 La. 146, 38 South. 87, 3 Ann. Cas. 821; Day v. Home Ins. Co. (Ala.) 58 South. 550, 40 L. R. A. (N. S.) 652; Phenis Ins. Co. v. Dorsey, 102 Miss. 81, 58 South. 778. Discussing this subject, the Court of- Civil Appeals for the Sixth District, through Mr. Justice Levy, in the case of Fire Ins. Co. v. Adams, supra, said:

“Defendant in error relies in this case on invoices of the goods by which they were purchased as being equivalent to an inventory of the stock, and as constituting substantial compliance with the requirement of an inventory. The parties having stipulated, as they had the right to do, for a record of the class of an ‘inventory’ which ‘the assured will take,’ it is not believed that the courts would be justified in so changing the language of the parties as to compel the insurance company to accept a record of a different class or a substitute for that which it had contracted for. And there is a practical difference between submitting an inventory taken of stock in the store and offering an invoice of goods*by which they were purchased. For invoices to have any verity as evidence' of goods received into a stock of merchandise, it would become necessary to show outside the invoice that the goods were checked with the invoice at the time they were received into the store, and were found to be correct in quantity and soundness, and that the merchandise represented by the invoice was actually received into the house and added to the stock before the close of the period for which the invoices are to be used as an inventory, for it is commonly known that' invoices most frequently precede shipments, and sometimes the goods are only on approval. It must be assumed that the parties contemplated there was a practical and substantial difference between an inventory and commercial invoices by stipulating, as they did, for an inventory to be taken by the assured. It has been decided that the furnishing of invoices by which goods were purchased was not .a compliance with the requirement of taking an inventory by the assured within 30 days after the date of the policy” — citing numerous cases in support of the text.

We think the record fails to show that the appellee complied with this clause of the contract, in that he failed to keep and preserve the inventories required thereby, and that he did not even substantially comply with said clause, because the -invoices were not inventories in the sense of this requirement. See Dorroh v. Insurance Co., supra.

We therefore sustain the first and fifth assignments of error, urging that the court erred in failing to give a peremptory instruction in behalf of appellant. The case having been fully developed, it becomes our duty to reverse the judgment of the court below, and here render the same in behalf of appellant, which is accordingly done.

Reversed and rendered.


author: CARL, J.

text:
    LANE et al. v. JONES.
    (No. 5310.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 13, 1914.)
    1. Injunction (§ 144) — Temporary Injunction — Hearing in Chambers — Matters Considered.
    In view of Rev. St. 1911, art. 4645, providing that on appeals relating to temporary injunctions the Court of Appeals shall hear and determine the matter on the petition, answer, and affidavits, the lower court, in hearing an application for temporary injunction in chambers, cannot pass upon exceptions to the petition filed by the defendants, and, where no pleadings were filed, aside from the exceptions, the only question is whether the petition is sufficient to authorize the injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.]
    2. Injunction (§ 122) — Petition—'Verification — Sufficiency.
    Under Rev. St. 1911, art. 4649, requiring a petition for an injunction to be verified by the affidavit of the party, an affidavit by plaintiff’s attorney, not upon his own knowledge, but to the best of his knowledge and belief, is insufficient, since it cannot be determined what facts are stated upon knowledge and what upon belief, and no prosecution for perjury could be predicated thereon if the affidavit were false.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.J
    Appeal from District Court, Kinney County; W. C. Douglas, Judge.
    Suit for injunction by John Jones against Frank Lane and others. From judgment granting temporary injunction prayed for, defendants appeal.
    Judgment reversed, temporary injunction dissolved, and the cause remanded.
    Frank Lane, of Brackettville, and John J. Foster, of Del Rio, for appellants. Ernest A. Jones, of Brackettville. and Martin & Martin, of Uvalde, for appellee.

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

   CARL, J.

Appellee, John Jones, brought suit for injunction against appellants, Frank Lane, county attorney, Joseph Veltmann, county judge, and Hans Peterson, A. M. Slator, and L. N. Lewis, county commissioners of Kinney county, also against I-I. E. Veltmann, county clerk of said county. It is alleged that Albert Schwander is also a member of the commissioners’ court, but of him no complaint is made.

The first amended petition charges that on February 11, 1914, the commissioners’ court made an order whereby Frank Lane, the county attorney, was to be allowed $100 per month for his services, beginning February 1, 1914, and to run until the further order of the court. It was alleged in the original petition that this employment was illegal, and an injunction was prayed for, restraining H. E. Veltmann, the county clerk, from issuing and delivering any warrant or scrip on the treasurer therefor, and restraining Frank Lane, as county attorney, from demanding or receiving or receipting for any warrant or scrip therefor. On February 24, 1914, the court granted this injunction, which was duly served, and appointed Charles Kartes, district clerk, pro tem. to serve in this case on account of the disqualification of H. E. Veltmann.

The amended petition further charges that the object of this suit “was and is to save to the plaintiff and many other taxpayers of Kinney county, Texas, said sum of $1,200.00 public funds of Kinney county, which was illegally, unlawfully, and wrongfully about to be misapplied and appropriated to his own use and benefit by the defendant Frank- Lane, county attorney, as aforesaid by virtue of the order and judgment of said commissioners’ court aforesaid.” And that defendants then entered into a scheme to evade and avoid the injunction of the court and “yet still, with a show of legality, break into the county treasury of Kinney county, and take therefrom the sum of $1,200.00 per annum or $100.00 per month, beginning March, 1914, for the use and benefit of defendant county attorney, Frank Lane, by reason of the following order, duly recorded in the minutes of the Commissioners’ Court, vol. 4, pages 462 and 463, and judgment of said commissioners’ court, which was duly prepared in advance by defendant county attorney, Frank Lane, or under his directions and employment, and requested to be by said ..commissioners’ court/ passed, which order and judgment is in words and figures as follows, to wit: [Here follows a letter from the county attorney, Frank Lane, to the commissioners’ court, in which he asks the court to set aside the former order of February 11, 1914, which request was by the court granted on March 9, 1914, and the said order was set aside and held for naught.]” But the same order, in which that was done, proceeds:

“It is hereby ordered by the commissioners’ court at a regular term in regular session on this, the 9th day of March, 1914, at 2:10 o’clock p. m., that the county judge of Kinney county be authorized to secure the services of Frank Lane, attorney at law, to assist said county judge and commissioners’ court in properly preparing the issue of the road bonds voted by a majority of the qualified property tax-paying voters of Kinney county on the 14th day of November, 1913; to advise said county judge and commissioners’ court in the proper preparation and issuing of said road bonds, and other legal matters in connection therewith; to sell or assist in selling said issue of bonds at the best price obtainable therefor; to do and perform such other services as shall be required of him in advising said commissioners’ court and county judge with reference to said bond issue, and in reference to all other matters not contemplated or covered by the said Frank Lane’s official duties as county attorney of Kinney county. The said employment by the county judge and commissioners’ court to be for a period of one year from date of this order. Said Frank Lane to receive as such compensation for said services to be performed, as above set forth, the sum of twelve hundred ($1,200.00) dollars, payable one hundred $100.00] dollars per month for a period of 12 months. It being understood and agreed to by the said Frank Lane that should he be instrumental in selling said bonds or finding a buyer therefor, that the said sum of twelve hundred ($1,200.00) dollars shall be full compensation for his services, and that no compensation shall be expected by or paid to the said Frank Lane for such services; that the said county judge is hereby authorized and empowered to" enter into, a contract with the said Frank Lane embodying the terms of the above order securing his services as special counsel in all civil matters in connection with said bond issue and other legal matters not contemplated or covered by the said Frank Lane’s oficial duties as county attorney of Kinney county.”

It is alleged that this was intended to be a salary; that Lane was the duly qualified and acting county attorney; and that the advice and services rendered under said contract would be the same that he is inquired by the Constitution to render to the county; and that the judgment of the commissioners’ court, of date March 9, 1914, is a subterfuge, and an attempt to evade the injunction of the court. It is further alleged that since February 28, 1910, the said Frank Lane has been drawing a salary as county attorney under the guise of legal services rendered and advice given the commissioners’ court, all of which, it is claimed, is- in violation of the Constitution and laws of Texas; and that the “good roads bonds” referred to in tie order of March 9, 1914, had already been prepared by the court, or, under its direction, submitted to the Attorney General of Texas, approved by him, and I-I. E. Veltmann, the regular clerk of the commissioners’ ^ourt, had been so notified; that .all that remained to be done was for the county judge and county clerk to sign, and for the Attorney General to put his certificate thereon, and have the comptroller register same.

The petition also charges that the commissioners’ court on December 9, 1913, paid to their codefendant Frank Lane, out of the public, funds of the county, the sum of $100 for traveling expenses in visiting the Attorney General at Austin and getting the form of bond, etc., to which he would give his certificate' of approval. This, as well as the $50 salary, it is claimed, Lane had been permitted to take out of the funds of Kinney county unlawfully.

The petition further charges that this contract is unlawful, and that the services therein 'provided for the county attorney is required to render by virtue of his office; that there is no way to pay said salary, except by an unlawful levy of taxes “or to raise plaintiff’s and all other taxpayers’ taxes to . that extent, as hereinbefore alleged” ; and, in the alternative, it is alleged that, should said contract be held legal, the salary is exorbitant and unreasonable.

Prayer was made for a temporary restraining order, as before.

Appellants, on a hearing, filed exceptions to the petition substantially: (1) Because the petition is insufficient as a basis for equitable relief, because not verified as provided by law; (2) because the allegations therein contained set up no such equitable cause of action as would entitle him to the relief prayed for; (3) because the same is insufficient to invoke the equitable jurisdiction of the court/ and the allegations therein contained are insufficient as a basis for an injunction.

No answer, other than these demurrers, was filed.

The court granted the temporary injunction prayed for, and appellants waived the issuance and service of the writs.

Article 4049 of the Revised Statutes requires the petition to be verified by the applicant. The affidavit reads as follows:

“The State of Texas, County of Kinney:
“Before me, the undersigned authority in and for said county and state, on this day personally appeared Ernest A. Jones, attorney of record for John Jones, plaintiff in the above-numbered cause, who, being by me first duly sworn, says that John Jones is plaintiff in the above and foregoing first amended petition, and that the allegalions in said petition are true according to his knowledge and belief. Ernest A. Jones, Attorney for John Jones, Plaintiff.
“Sworn to and subscribed before me this 19th day of March, A. D. 1914. H. A. Longeor, J. P. and Ex Officio Notary Public, Kinney Co., Texas. [Seal.]”

Appellee insists that the court had no power to pass on the special exceptions in chambers, and we think that position is correct. This is a matter for the court to pass upon, and not for the judge in chambers. The only question that was before the judge in chambers was whether he should grant an injunction upon the pleadings as presented. The law provides that matters touching temporary injunctions shall be heard and determined on appeal by the bill or petition and answer thereto. Articles 4644 and 4645, Revised Statutes. And, since no answer was filed in this case, the matter was before the court upon the bill presented. The judge could not then act upon the exceptions. El Campo Light Co. v. Water & Light Co., 132 S. W. 868; Dearborn v. Phillips, 21 Tex. 449-451. The matter, then, resolves itself into this question: Would the court be authorized to grant a temporary injunction upon a bill not verified as provided by law, where no answer is filed?

Article 4649 of the Revised Statutes of 1911 reads as follows:

“No writ of injunction shall be granted, unless the applicant therefor shall present his'petition to the judge, verified by his affidavit taken before some officer authorized to administer oaths, and containing a plain and intelligible statement of the grounds for such relief.”

ThE. affidavit is made by the attorney, and it has often been held .that, where the attorney makes it, he must do so upon his own knowledge. An affidavit to the “best of my knowledge and belief” is insufficient. Cates v. Maas, 4 Willson, Civ. Cas. Ct. App. § 161, 14 S. W. 1066; Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. The .allegations must be definite and certain. Nalle v. City of Austin, 21 S. W. 375; Buie v. Cunningham, 29 S. W. 801. And, where the verification is defective, an injunction will not be granted. Smith v. Allen, 28 Tex. 497; Johnson v. Daniel, 25 Tex. Civ. App. 587, 63 S. W. 1032.

The attorney, in this case, makes oath “that the allegations in the said petition are true according to his knowledge and belief.” It does not inform us what part he knows of his own knowledge and what facts he swears to on belief. It must be borne in mind that this is an application for a temporary injunction, which, to some extent, distinguishes it from a petition for permanent injunction which comes up on final trial. The allegations must be clear and certain, and the verification must be in compliance with the statute. It cannot be ascertained from the affidavit what facts are sworn to on the basis of the attorney’s knowledge, nor those verified from information, nor the source of that information. The courts of this state have repeatedly held that such an affidavit is insufficient. Rev. Stats. 1911, art. 4649; Pullen v. Baker, 41 Tex. 420; Graham v. McCarty, 69 Tex. 324, 7 S. W. 342; Ry. Co. v. Harkey, 39 Tex. Civ. App. 523, 88 S. W. 506; Lee v. Broocks, 54 Tex. Civ. App. 220, 118 S. W. 164; Clarey v. Hurst, 136 S. W. 840; Spinks v. Mathews, 80 Tex. 375, 15 S. W. 1101; Smith v. Banks, 152 S. W. 449; Ry. Co. v. Brown, 75 S. W. 807; Moss v. Whitson, 130 S. W. 1034.

In the Spinks Case, supra, it is said:
“In support of pleas of this character it is held that the affidavit should show substantially that the party making- it has knowledge himself of the facts. It is signed by an agent, and the general statement under oath that ‘the allegations are true and correct, to the best of his knowledge and belief,’ is too general to constitute a substantial compliance with the law.”

And in the Smith v. Banks Case, supra, Mr. Justice Ely has said:

“The test of an affidavit, as laid down by the Commission of Appeals (Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213), is that the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie, if the oath is falsely made. The affidavit in this case will not meet that test, for it would be impossible to prove that any certain part of the petition was sworn to upon knowledge, information, or belief, and consequently an indictment for perjury would have nothing upon which it could be predicated with that definiteness required in criminal proceedings. The general rule is that an affidavit on ■ mere information and belief, without supporting affidavits of the informants, is not sufficient”— citing some' of the cases referred to here, and citing some others. Beach on Inj. par. 136; High on Inj. par. 1569; Ruge v. Fish Co., 2 Fla. 656, 6 South. 489; Moss v. Whitson, 130 S. W. 1034.

We therefore conclude that the affidavit was insufficient to form the basis of a temporary injunction, and the first assignment of error is sustained.

The case will not be further considered, because we will not assume that a different affidavit from this one will be made. The very foundation of an equitable proceeding such, as this is the affidavit, and, since it was totally insufficient, the court was not authorized to grant the temporary injunction.

The Judgment is reversed, the temporary injunction is dissolved, and the cause is remanded.


author: JENKINS, J.

text:
    WOFFORD v. LANE et al.
    (No. 5322.)
    (Court of Civil Appeals of Texas. Austin.
    March 18, 1914.
    On Motion for Rehearing, April 29, 1914.)
    1. Evidence (§ 273) — Declarations—Admissibility.
    A statement of a husband prior to the incurring of an indebtedness to a third person that personal property belonged to his wife was admissible in a contest between the third person and the wife to determine the ownership of the property.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.]
    2. Husband and Wife (§ 49%)— Separate Property — Gifts .
    Where a husband and wife treated animals as her separate property under a mistaken view of the law as to the increase of the property,, there was no gift to the wife, but if the husband relinquished his claim to the increase because it was just to the wife that she should have the increase of her separate property, there was a gift by him to her of the increase.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 49%.]
    On Motion for Rehearing.
    3. Appeal and Error (§ 1070) — Harmless Error — Immaterial Issues. 1
    Where on a contest between a creditor and wife of the debtor, claiming property levied on, the uncontroverted evidence showed a gift by the debtor to the wife prior to the debt, the question as to when the debtor made the gift was immaterial, within Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, requiring the court to submit controverted questions of fact only, and the submission of the question and an insufficient answer thereto were immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231 — 4233; Dec. Dig. § 1070.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by Miles Wofford against R. B. Lane, in which. Minnie J. Lane appeared and filed a claimant’s bond. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Snodgrass, Dibrell & Snodgrass, of Coleman, and Mark McGee, of Brownwood, for appellant. I. J. Rice, of Brownwood, for ap.-pellees.

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

   JENKINS, J.

Appellant brought suit against R. B. Lane on a debt, and levied upon two mules and one mare. Appellee Minnie J. Lane filed her oath and claimant’s bond, alleging that said animals were her separate property. The trial of the right of property was submitted upon special issues. Appellee and her husband each testified that the animals in question were the offspring of mares -that were the separate property of appellee, and this • evidence was not controverted. R. B. Lane and appellee each testified that they had always treated and considered the animals in controversy as the separate property of appellee and also that on several occasions parties had sought to purchase the animals in controversy, and that R. B. Lane had stated to such parties that the animals belonged to his wife, and referred them to her, and that she had declined to sell them. This testimony was corroborated by parties who had sought to purchase these animals. Both Lane and his wife testified that they had considered and treated said animals as the separate property of Minnie J. Lane, for the reason that they were the offspring of mares belonging to Minnie J. Lane.

Appellant assigns error upon the refusal of the court to grant a new trial “because the answer of the jury to question No. 2 is not responsive, and not sufficient upon which to base a judgment in this case, in that it is indefinite, incomplete, and does not state any definite time, but making it necessary for the court to determine from the evidence whether the gift was made prior to or subsequent to the levy of attachment herein by plaintiff upon the animals in controversy, and to the creation of plaintiff’s debt.” Said question is as follows:

“If in answer to question No. 1 you have stated that defendant R. B. Lane gave said mule to his wife Minnie J. Lane, then state when he did so.” Answer: “When he refused to sell or dispose of said property.”

The same question was submitted, and answer made as to each of the other animals. We sustain this assignment. The court cannot look to the evidence in the case to supply omissions in special findings. Mussina v. Shepherd, 44 Tex. 627; Ry. Co. v. Botts, 22 Tex. Civ. App. 609, 55 S. W. 515; Heflin v. Burns, 70 Tex. 355, 8 S. W. 48; Riske v. Rotan Grocery Co., 37 Tex. Civ. App. 494, 84 S. W. 244.

Appellant assigns error upon the admission of the testimony that R. B. Lane stated to parties who desired to purchase the animals that they belonged to his wife. We overrule this assignment. This statement, having been made prior to Lane’s indebtedness to appellant, was a circumstance that might be looked to to determine whether or not' he had given the property to his wife. As we cannot know what the testimony upon another trial will he, we refrain from stating any opinion as to whether the testimony was sufficient to sustain the gift as to the two mules.

If the facts are that Lane and his wife treated the animals as the separate property ’ of the wife, upon a mistaken view of the law as to the increase of separate property, this would not constitute a gift; such fact would not have estopped the husband from claiming the property as community property. But if the husband in fact relinquished his claim to the property because be thought it was just to the wife that she should have the increase of her separate property, such fact would sustain the claim of gift. The evidence in this record is sufficient to sustain a gift as to the mare, but leaves it doubtful as to the mules.

For the reason that the finding of the jury as above set out is insufficient as a basis for the judgment, the same is reversed, and the cause remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

Appellees in their motion for rehearing have called our attention to the act of 1913, page 114, wherein article 1971 of the Revised Statutes is so amended as to read as follows: “ * * * He [the court] shall * * * submit- all controverted questions of fact only to the decision of the jury.” In the instant case, the court submitted to the jury the issue as to when R. B. Lane gave the property to his wife Minnie B. Lane, and the effect of our decision is that the jury did not answer this question. If R. B. Lane ever gave the property to Minnie B. Lane, the court should not have propounded the question as to when such gift was made, as the uncontroverted evidence showed that such gift was made, if at all, prior to the time R. B. Lane became indebted to appellant. As such question should not have been propounded, it is immaterial that it was not answered.

The case was submitted on special issues, and the jury found that R. B. Lane gave the property to his wife. The evidence is not clear as to the two mules, but it is sufficient to sustain the verdict.

For the reasons stated, appellees’ motion for a rehearing is granted, and the judgment of the trial court is affirmed.

Motion granted. Judgment affirmed. .