text:
    R. B. GODLEY LUMBER CO. et al. v. C. C. SLAUGHTER CO.
    (No. 1883.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1918.
    Rehearing Denied Feb. 28, 1918.)
    1. Judgment <&wkey;743(2) — Res Judicata— Right to Recover Land.
    A judgment merely denying to plaintiff recovery of land, without vesting, title thereto in defendant, is not res judicata as to right to recover the land in a subsequent -suit.
    2. Vendor and Purchaser <&wkey;54 — Title Before Payment.
    Vendor has the superior title until payment, by vendee.
    3. Vendor and Purchaser) &wkey;o208 — Superior Title op Vendor — Assignment.
    Vendor may pass his superior legal title to the holder of unpaid purchase-money notes.
    4. Vendor and Purchaser &wkey;>261(l) — Vendor’s Interest — Assignment.
    As vendor may pass his superior legal title to the holder of an unpaid purchase-money note, the assignee of the note and superior title may likewise pass such title to a subsequent assignee of the same unpaid note.
    5. Vendor and Purchaser &wkey;3261(l) — Vendor’s Interest — Assignment.
    The fact that a transfer of a. purchase-money note and lien and vendor’s superior legal title occurs at different dates would not affect the transferee’s right to recover the land.
    6. Judgment &wkey;>743(2) —• Res Judicata — Title to Land.
    Plaintiff in a suit to recover land is not precluded by a former judgment from asserting a subsequently acquired title.
    7. Vendor and Purchaser i&wkey;299(l) — Limitations — Recovery- of Land.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5694, limiting right to recover land by vendor or his transferee to four years after maturity of the purchase-money note, applies to an action for the recovery of land by the owner of a purchase-money note and the vendor’s superior title.
    Appeal from District Oourt, Smith County; J. R. Warren, Judge.
    Action by the C. C. Slaughter Company against the R. B. Godley Lumber Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    See, also, 171 8. W. 779.
    Appellee company sued the appellant company and W. M. C. Hill, trustee in bankruptcy, on April 19, 1915, in trespass to- try title to certain described tracts of land. The petition further set up that the appellee was the owner and holder of a vendor’s lien note against the land, and that, if appellee be denied recovery of the land itself, then judgment for the debt be rendered with foreclosure of the lien on the land in accordance with the alternative prayer. The defendants answered with demurrer, statute of limitation in bar of suit, plea of not guilty, general denial, and a plea of res adju-dicata. The plea of res adjudicata is to the effect that cause of action No. 7236 in the district court of Smith county, Tex., styled O. C. Slaughter, Jr., v. R. B. Godley Lumber Company, was to try the title to the same land described in the present suit, and the judgment entered in the district court in favor of C. C. Slaughter, Jr., against R. B. Godley Lumber Company for the land was, on appeal to the Oourt of Civil Appeals of the Sixth District, reversed, and final judgment there entered denying to C.. C. Slaughter, Jr., a recovery of the land. By supplemental petition the appellee answered that in the suit No. 7236 set up by the appellant it was not the owner of the title now claimed in the present suit, but acquired the title now claimed after the final determination of the said suit. There was a trial before the court without a jury, and judgment was entered in favor of the ap-pellee for the land.
    On December 5, 1906, W. L. Noble conveyed by deed to R. B. Godley Lumber Company, a corporation, certain lands. The consideration was $11,329.30 payable to the' order of W. L. Noble on or before five years after the date, which was December 5, 1906, and bearing 5 per cent, interest annually. The deed as well as the face of the note expressly retained a vendor’s lien on the land to secure payment of the said purchase-money note. The president of the R., B. God-ley Lumber. Company was authorized by the directors to purchase the land and execute the note. On December 12, 1906, the R. B. Godley Lumber Company executed a deed of trust on the lands sued for to A. A. Slaughter, trustee, to secure O. C„ Slaughter in the payment of a note for $11,329.30 due five years after its date of December 12, 1906. The note was in evidence with the indorsement by C. C. Slaughter of:
    “Without recourse on us, either in law or equity, for value received, I 'hereby transfer the within note, with all liens on property connected with securing the payment thereof to C. C. Slaughter, Jr., or order. April 1st, 1913.”
    On September 29, 1908, W. L. Noble made a written transfer of the vendor’s note and also of the superior legal title to the land to the Kansas City Life Insurance Company, which was duly registered. On December 21, 1911, the Kansas City Life Insurance Company made written transfer of the note and lien to C. C. Slaughter,! which transfer was duly registered. On April 11, 1913, C. C. Slaughter in writing transferred th'e note and the lien to C. C. Slaughter, Jr., which transfer was duly registered. On January 2, 1915, the Kansas City Life Insurance Company executed a quitclaim deed to C. O. Slaughter, Jr., to the lands described in the deed from W. L. Noble to the R. B. Godley Lumber Company, which conveyance was duly registered. On April 15, 1915, C. C. Slaughter, Jr., executed a quitclaim deed to O. C. Slaughter Company to the lands in the deed from W. L. Noble to the R. B. Godley Lumber Company, which was duly registered on April 19, 1915. The C. C. Slaughter Company was the assignee of the vendor’s lien note from 0. 0. Slaughter, Jr. The purchase-money note has not been paid by the vendee.
    The defendant offered in evidence the original petition of the plaintiff in cause No. 7236 in the district court of Smith county, Tex., styled C. O. Slaughter, Jr., v. R. B. God-loy Lumber Company, which was filed in April, 1913. The suit was for the recovery of the amount due on the vendor’s lien note of December 5, 1906, and for the foreclosure of the lien, and also in the same suit to recover upon the other note for $11,329.30 secured by the deed of trust, and for foreclosure of the mortgage lien. Afterwards, on July 1, 1913, the plaintiff in that suit filed a first amended original petition and sued in trespass to try title to the land upon which the vendor’s lien was retained, and also tO' fix the alleged mortgage lien upon the land without foreclosure. The amended petition was prosecuted in the district court to final judgment therein, which was a recovery of the lands sued for and also fixing upon the lands the mortgage lien securing the second note for $11,329.30. The land in that suit is the same land as in the present suit. On appeal the said judgment of the district court was, on the 14th day of November, 1914, reversed, and a judgment rendered that O. O. Slaughter, Jr., take nothing by his suit as to the land, but affirming that portion of the judgment establishing the mortgage lien. The judgment of the court of appeals became final. The opinion of the court of appeals was offered in evidence as reported in 171 S. W. 779.
    Harry P. Lawther, of Dallas, and T. N. Jones, of Tyler, for appellants. K. R. Craig, of Dallas, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant insists that the final judgment in the action of C. C. Slaughter, Jr., v. R. B. Godley Lumber Company, works an estoppel by res adjudicata against the partios to this suit for the recovery of the same land. It .is believed the contention should be overruled. As decided by the court on the merits of that suit, that as C. C. Slaughter, Jr., was the assignee of the vendor’s lien note without transfer to him of the superior legal title to the land by or through the Kansas City Life Insurance Company, he was not entitled to have the legal title to the land decreed to him in that suit. The judgment merely denied to the plaintiff a recovery, without vesting any title to the land in the defendant. Godley Lbr. Co. v. Slaughter, 171 S. W. 779. It appears, though, in the present ease, that after the final determination of the above suit C. C. Slaughter, Jr., procured a conveyance of the superior legal title to the land from the Kansas City Life Insurance Company, and conveyed the superior legal title to the appellee, who is now the legal owner of the vendor’s lien note. The vendor, as decided, has the superior title until payment by the vendee. Howard v. Davis, 6 Tex. 174. And the vendor has the right to pass the superior legal title to the holder of the unpaid purchase-money notes. Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834. As the vendor may pass the superior title to the holder of the unpaid purchase-money note, then such assignee of the note and superior title may likewise pass such superior title to a subsequent assignee of the same unpaid purchase-money note. And that the transfer of the note and lien and the superior title by the Kansas City Life Insurance Company occurred at different dates would not affect the transferee’s right to recover the land. White v. Cole, 87 Tex. 500, 29 S. W. 759; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878. See Abernethy v. Bass, 9 Tex. Civ. App. 239, 29 S. W. 398. And it is the settled rule that in a suit founded upon a subsequently acquired title the plaintiff is not precluded by a former judgment from asserting such subsequently acquired title. Connolly v. Hammond, 51 Tex. 635; Id., 58 Tex. 21; Rogers v. Southern Pine Co., 21 Tex. Civ. App. 48, 51 S. W. 26. Thus the superior title upon which the present suit is founded having been acquired by C. C. Slaughter, Jr., subsequent to the final adjudication of the former suit, it would follow that neither C. C. Slaughter, Jr., nor his assignee, the appellee, is precluded by the former judgment from asserting such subsequently acquired superior title.

The appellant insists that the appellee’s right to recover th'e land by virtue of being the holder of the superior title is barred by the statute of limitations of one year, under Act Special Session of 1913, p. 39 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695). The note was dated December 5, 1905, due five years after date. The conveyance of the superior title to appellee was made April 15,1915. Article 5694, Vernon’s Sayles’ Statutes, has apifiication, it is believed, to this case. That article provides four years after the maturity of the note as the period of limitation on the right to recover the land by the vendor or his transferee, unless such time should be extended, which was not involved here, under the provisions of article 5695. Adams v. Harris, 190 S. W. 245.

The judgment is affirmed.

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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    RUSK COUNTY v. HIGHTOWER.
    (No. 1925.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 7, 1918.
    Rehearing Denied March 14, 1918.)
    1. Appeal and Error &wkey;s911(l) — Presump - TIONS.
    Where judgment entered by a special judge recited that he had been agreed upon by the parties to try the case, and nothing in the bill of exceptions conflicts with such recital, the court on appeal must presume that a legal and binding agreement was made.

      2. Jury &wkey;>25(6) — Right to Jury Trial — Time for Demand.
    In view of Rev. St. 1911, art. 5175, requiring party desiring jury to apply therefor in open court on the first day of the term at which the suit is to be tried, it was not error to refuse a trial by jury after the jury had been discharged for the week, when there was no demand tor a jury at the beginning of the term, and no excuse was offered for failure to call for a jury as provided by law.
    3. Counties c&wkey;74(3)—Treasurer's Compensation-Salary.
    Orders of the commissioners’ courts, fixing compensation of county treasurer at a stated salary, is void.
    Appeal from District Court, Rusk County; Jno. O. Douglas, Judge.
    Action by R. H. Hightower against Rusk County. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. W. McDavid and C. L. Stone, both of Henderson, for appellant. R. T. Jones, of Henderson, for appellee.
   HODGES, J.

The appellee sued Rusk county to recover a balance claimed as commissions earned as its county treasurer. He was elected in 1912 and served four years. Before and during his term of office the commissioners’ court of Rusk county passed orders fixing his compensation as follows: One and one-half per cent, on receipts and disbursements of the jury fund, and a salary of $75 per quarter for handling the remainder of the county’s funds. A few days after the expiration of his second term the appellee filed this suit, and asked for judgment for the full amount of commissions allowed by law at the rate of 2 y2 per cent, of the entire receipts and disbursements of comity funds, less the amount which he had received under the orders of' the commissioners’ court. This petition did not allege the presentation of a claim to the commissioners’ court, and a failure or refusal to allow it. In May, 1917, an amended original petition was filed in which those necessary averments were made, and upon that petition the case was tried and a judgment rendered in favor of the appellee for the sum of $2,975.82.

The case was tried by 1-Ion. John O. Douglas as special judge, the regular district judge being, for some reason, disqualified. The first assignment of error challenges the right of Hon. John O. Douglas to act as special judge, upon the ground that there was no written agreement selecting him for that purpose. In the judgment entered it is recited that the special judge had been agreed upon by the parties to try this case. There is nothing in the bill of exceptions which conflicts with that recital, and we must presume that a legal and binding agreement had been made. Fariss v. Beeville B. & T. Co., 194 S. W. 1169; Rossetti v. Benavides, 195 S. W. 208.

Appellant also insists that the court erred in refusing to allow it a trial before a jury. The bill of exceptions as qualified by the trial judge shows that this case was set by the parties for the fourth week of the term, and was taken up after the district judge had disposed of all the other cases set for that term; that no jury had ever been called for prior to that time, and no jury fee paid; that after the cáse had been called by the special judge and a verbal request for a continuance or postponement of the case had been denied the county judge of Rusk county paid to the clerk a jury fee of $5, and counsel for the appellant thereupon asked for a trial by jury. It appears that Hon. Daniel Walker, the duly elected judge of that district, after having disposed of all the cases set for that term, had discharged the jury for the week. The practical effect of granting the request for a trial by jury in this particular instance would have been to continue the case for the term. The record contains no excuse for a failure to call for a jury before that date. While the Oonstitution provides for a trial by jury, it leaves it to the Legislature to regulate the method of applying for juries and fixing the rights of the parties to have jury trials. Article 5175 provides that:

“Any party to a civil suit in the district or county court desiring to have the same tried by jury, shall make application therefor in open court on the. first day of the term of the court at which the suit is to be tried,” etc.

There was no error in refusing the request for a jury in this instance. Petri et al. v. Lincoln National Bank, 84 Tex. 153, 19 S. W. 379. While the absence of any averment in the original petition that the appellee’s claim had been presented to and not allowed by the commissioners’ court may have been fatal defect, that omission was cured in the amended original petition, filed some time prior to the trial of this case.

It has been well settled by recent decisions in this state that orders of the commissioners’ courts, fixing the compensation of county treasurers at a stated salary, as was done in this instance, are void. Montgomery County v. Talley, 169 S. W. 1141; Smith v. Wise County, 187 S. W. 705; Hill County v. Sauls, 134 S. W. 267. Other eases might be added, but we deem it unnecessary.

The judgment of the district court is affirmed.
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author: LEVY, J.

text:
    HAWTHORN v. COATES BROS. et al.
    (No. 1946.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 2, 1918.
    Rehearing Denied April 18, 1918.)
    1. Landlord and Tenant i&wkey;241- — Lien for Advances — Statute.
    A contract that the landlord furnish everything except the labor to make and gather the crops, and that he have one-half of all crops and all of the cotton seed, is plainly excepted by proviso to Vernon’s Ann. Civ. St. Supp. 1918, art. 5475, giving landlords a preference lien on the crops for advances.
    2. Constitutional Daw <&wkey;244 — Landlord's Lien — Constitutionality ,oe Statute.
    Vernon’s Ann. Civ. St. Supp. 1918, art. 5475, giving landlord lien upon crops grown by the tenant to secure advances, is not unconstitutional because its operation is restricted to certain classes of contracts.
    3. Constitutional Law <&wkey;161 — Obligation of Contracts — Lien.
    A lien created by statute for payment of a debt is but part of remedy afforded for its collection, and the remedy simply acting on property is no part of the obligation of a contract.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Suit by R. C. Hawthorn against Pierce Hubbard, in which Coates Brothftrs were made defendants. Prom a judgment for plaintiff as against Hubbard and that plaintiff take nothing as against Coates Brothers, plaintiff appeals. '
    Affirmed.
    R. C. Hawthorn owns 90 acres of land which he rented to Pierce Hubbard for agricultural purposes for the year 1916. Coates Bros, obtained a money judgment against Pierce BCubbard, and caused to be levied an execution on five bales of the cotton raised by Pierce Hubbard on the rented premises during the year 1916. Then R. C. Hawthorn as landlord brought this suit against Pierce Hubbard, the tenant, for the balance due for rent and for the supplies and advances to make the crop, and to foreclose a lien on the five bales of cotton. Coates Bros, were made defendants in this case, the plaintiff claiming against them a superior lien on the cotton. The petition alleged a rental contract as follows;
    “The plaintiff agreed to furnish the defendant Hubbard 90 acres of land and the teams and tools to cultivate the same. The defendant agreed to cultivate the land and to deliver plaintiff as rent one-half of all the crops raised on the land during the rental year and to pay 10 per cent, interest on all the moneys, supplies, and labor furnished by plaintiff to defendant to enable the defendant to make the crop. It was further agreed that the plaintiff was to have all the cotton seed arising from the seed produced by the defendant on the land during said rental year. It was agreed that the plaintiff should pay all expense of wrapping and ginning the cotton and was to furnish feed for all the animals necessary to make and raise the crop.”
    And to that part of the petition setting up the rental contract the defendants Coates Bros, entered an exception reading as follows:
    “The petition shows on its face a rental contract in contravention of the laws of the state, and the plaintiff has no-landlord’s lien to foreclose as against the defendants Coates Bros.”
    The court sustained the special demurrer and then.-entered judgment in favor of the plaintiff against the tenant, on his answer, for the amount of the debt sued for; and further that the plaintiff take nothing by his suit against Coates Bros. The appeal is by the plaintiff to revise the ruling of the court sustaining the demurrer.
    Woods & Morrow, of Kaufman, for appellant. Wynne & Wynne, of Kaufman, for appellees.
   LEVY, J.

(after stating the facts as above). The act in question gives a preference lien to a landlord upon the crops raised by the tenant on the rented premises for the rent and for the amount of the money, animals, tools, supplies, and provisions furnished by the landlord to the tenant. But the proviso of the article reads;

“Provided, however, this article shall not apply in any way nor in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton raised on said land; nor where the landlord furnishes everything except the labor and the tenant furnishes the labor and the landlord directly or indirectly charges a rental of more than one-half of the * * * grain and more than one-half of the * * * cotton raised on said land, and any contract for .the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for shall be null and void, and shall not be enforceable in any court in this state by an action either at law or in equity, and no lien of any kind, either contractual or statutory, shall attach in favor of the landlord, his estate or assigns,- upon any of the property named, nor for the purpose mentioned in this article.” Acts 34th Leg. p. 77 (article 5475, Vernon’s Stat. Supp. 1918.)

The proviso quoted plainly by its terms excepts and excludes a special class of contracts made by the landlord with the tenant from any lien upon the crops therefor. As the proviso is there used for the purpose of taking special cases out of a general class-, it has the effect to prevent the lien created by statute from attaching at all upon the crops in the special cases defined. And therefore the article, in the light of the proviso, should be construed as providing and limiting a statutory landlord’s' lien upon crops to those landlords making certain class of rental contracts with tenants. Accordingly, it devolved upon the plaintiff in this case, in order to predicate the right to a statutory landlord/s lien, to allege a rental contract within the terms of the law from which such a lien results. And looking to the terms of the alleged rental contract upon which the plaintiff predicated a statutory landlord’s lien upon the cotton in controversy, the landlord was to furnish everything but the labor necessary to make and gather the crops to be raised on the land by the tenant during the rental year. And, as provided, the yearly rental to be paid the landlord by the tenant was (1) “one-half of all the crops raised on the land” and (2) “all the cotton seed arising from the seed cotton produced on the land.” The alleged contract, it is concluded, is not within that class of contracts made by the landlord with the tenant that the statute gives the landlord’s lien upon the crops therefor. Statutory liens cannot be extended by the courts to cases not provided for by the statute. Therefore the trial court, it is thought, did not err in holding that the plaintiff did not have a statutory landlord’s lien on the cotton as predicated on the alleged rental contract.

The act is assailed by the appellant as unconstitutional. The point here involved is precisely that of a statutory lien. There is no objection on constitutional grounds to statutes giving landlords a lien where the law is made to apply to all of a class. 24 Cyc. p. 1250; 16 R. C. L. § 497; State v. Elmore, 68 S. C. 140, 46 S. E. 939. For a lien created by statute for the payment of a debt is but part of the remedy afforded by law for its collection. Cooley, Const. Lim. p. 405. And the remedy given by law, which simply acts upon property, is no part of the obligation of a contract. 3 Page on Contracts, § 1765; 3 Elliott on Contracts, § 2721. The Legislature, having the power to make the law in the first instance, has also the power to restrict and limit its operation to only those landlords making a certain class of contract with tenants.

In the absence, as here, of a statement of facts, the other assignments of error may not be considered.

-The judgment of the trial court is affirmed.
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text:
    HOUSTON NAT. EXCH. BANK OF HOUSTON v. GREGG COUNTY et al.
    (No. 1922.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 3, 1918.
    Rehearing Denied April 11, 1918.)
    1. Banks and Banking &wkey;>109(3) — Au- . THORITY 03? CASHIER — DELEGATION BY DIRECTORS — STATUTE.
    Under Rev. St. 1911, art. 530, providing that the officer or employs of a state bank shall have no power to indorse, sell, or hy-pothecate any obligation received by the bank for money loaned, unless such power is given by the board of directors at a regular meeting at which a written record of the proceedings is made upon the. minutes, and that otherwise such acts of any officer or employe shall be void, the cashier of a bank, authorized thereto by a duly entered resolution, had authority to contract to pledge the bank’s bills receivable for the payment of its debt.
    2. Mortgages <&wkey;28 — Equitable Líen.
    An agreement to mortgage designated property, when carried so far that nothing remains undone except the formal execution of the mortgage, may, as between the parties, be treated as creating an equitable lien.
    3. Pledges <&wkey;14 — Bills Receivable — Ex- . ecutory Agreement.
    If, after a conversation between the officers of a debtor and a creditor bank regarding the payment of drafts and the giving of a note and security,_ all the terms were settled, and nothing remained except performance, the contract was within the class which may be enforced as an executory agreement.
    4. Pledges <&wkey;14 — Bills Receivable — Mortgage Agreement.
    An agreement between the officers of a debtor and a creditor bank, whereby the cashier of the debtor bank agreed to send the note of his bank for a certain sum, to be secured by bills receivable then held by his bank equal to $30,000, .which were to be first-class commercial paper, and, in consideration for the note and the pledge of collateral the creditor bank was to and did pay the drafts which had been presented, and performance alone was required to complete the transaction, the creditor bank was entitled to an equitable lien, though the note was never executed and the bills receivable were not sent to it.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Petition in the matter of the insolvency of the People’s State. Bank by the Houston National Exchange Bank of Houston for allowance of claim, and a preference on the assets of the bank. Gregg County and others protested. Judgment for plaintiff for the amount of its claim, but denying a priority, and it appeals.
    Reversed, and judgment rendered, allowing plaintiff’s demand as a preferred claim.
    Edwin Lacy, of Longview, and Otto Taub, of Houston, for appellant. F. J. McCord, J. H. McHaney, E. M. Bramlette, and Young & Stinehcomb, all of Longview, for appellees.
   HODGES, J.

In August, 1916, the state commissioner of insurance and hanking closed the doors and took charge of the affairs of the People’s State Bank of Longview, because of its insolvent condition. In March, 1917, he filed in the district court of Gregg county a petition, showing the assets of the defunct hank and the list of claims presented by its creditors other than depositors. Among the claims presented as having been allowed by him was that of the appellant, the Houston National Exchange Bank, for the sum of $18,-939.78. This claim, it appears, was based upon overdrafts drawn by the Longview bank upon the Houston bank. In his petition the commissioner asks that a date be fixed for a hearing and that the creditors of the insolvent bank be permitted to contest the allowance and rejection of claims theretofore made by him. In April following the Houston National Exchange Bank filed its petition with the district court of Gregg county, alleging that its claim was entitled to a preference, upon the ground that it was secured by an equitable mortgage upon certain commercial paper held by the insolvent bank at the time it ceased to do business. This claim of priority was contested by Gregg county, and upon hearing the court approved the allowance of the claim, but refused the preference and lien asserted by the appellant. From that order this appeal is prosecuted.

The following are, in substance, the material facts as set out in-the findings filed by the trial court: In January, 1916, the director's of the People’s State Bank of Longview at a regular meeting passed and had spread upon their minutes the following resolution:

“Whereas, it is desirable that the officers of this bank should from time to time be able to borrow sums of money on its behalf: Be it resolved:
“1. That the president and cashier of this bank are and each of them is hereby authorized to borrow from time to time on behalf of this bank from the Houston National Exchange Bank of Houston, Texas, such sum or sums of money for such times and upon such terms as may to them or any of them seem advisable, and to execute notes or agreements accordingly in the name of the bank for the payment of any sum so borrowed.
“2. That each of the said officers is hereby authorized to pledge any of the bond^, stocks, bills receivable or other securities or property of the bank for the purpose of securing any money so borrowed, upon such terms as may to the officers or officer pledging the same seem advisable.
“3. That each of the said officers is hereby authorized to rediscount with said bank any of the bills receivable held by this bank, upon such terms as he may deem advisable.
“4. That the foregoing powers shall continue until express notice of their revocation has been duly given to said bank from -whom this bank shall borrow money in the manner above described.”

The appellant bank never at any time received any notice of the revocation of the powers conferred by the terms of that resolution. During the month of January, 1916, the'P'eople’s State Bank borrowed from the appellant the sum of $40,000, giving its note for that sum and pledging as security for the payment of the note certain of its bills receivable. About the 7th' of August, 1916, the People’s State Bank became further indebted to the appellant bank . through overdrafts made upon the latter, and continued to be so indebted until its doors were closed; the amount of such indebtedness fluctuating from day to day by reason of additional drafts made by the People’s State Bank and remittances being sent to the appellant. On the 12th of August, 1916, which was Saturday, the amount of the indebtedness of the People’s State Bank to the Houston National Exchange Bank at the close of business was $11,564.17. During that week the matter of giving the appellant security for the account of the Longview bank was discussed between the cashiers of those two institutions, but no definite agreement was made, at that time to give, the security. On Monday, August 14, 1916, other drafts of the People’s State Bank upon the Houston National Exchange Bank were presented to the latter for payment. Before paying them, however, the vice' president and cashier' of the Houston bank called the cashier of the People’s State Bank by telephone and notified him that such additional drafts could not be paid unless security should be given for the account then due the Houston bank. The cashier agreed to send to the appellant bank the note of the People’s State Bank for $20,-000, such' note to be secured by bills receivable for money loaned by the People’s State Bank equal to the sum of $30,000; such bills receivable to be first-class commercial paper. The note for $20,000 was never executed or sent, and none of the bills receivable of the Longview bank was sent as agreed upon.' None was ever designated or set apart for that purpose, and there was never any agreement as to what paper should be given to the appellant as security for the debt referred to.

At the time of making the advances referred to above the Houston bank acted in good faith, and had no notice that the People’s State Bank was insolvent or in a failing condition. The latter bank received the benefits of the advances made by the Houston bank in the settlement of its business affairs. After August 14th, and after the commissioner of Insurance and banking had taken charge of the assets of the Longview bank, there was realized from the proceeds of notes belonging to the People’s 'State Bank the sum of approximately $87,536; the sum of $14,000 having been collected prior to the time the commissioner took charge of the bank on August 18, 1916, and the remainder having been collected after that time. At the date of the trial there was in the hands of the commissioner bills receivable belonging to the People’s State Bank amounting to about $16,137, 50 per cent, of which' was collectible and probably will be collected by the commissioner in the further administration of the bank’s affairs. Upon these facts the trial court approved the allowance of the appellant’s claim, but refused to find it was secured by a lien.

There are two grounds urged in support of the judgment rendered. The first is that the evidence fails to show a transaction embracing the essential elements of a complete agreement to mortgage specific property; that no particular security was agreed upon or designated by the contracting parties. The second ground urged is that the officers of the People’s State Bank had no legal authority to pledge its bills receivable as security for the debt contracted. While the trial judge expressly based his conclusions of law upon the first ground, he intimated a grave doubt as to the sufficiency of the resolution relied on, to confer authority upon the officers of the People’s State Bank to pledge its commercial paper in the manner attempted. Article 530 of the Revised Civil Statutes contains the following:

“The officer or employe [of a state bank] shall have no power to indorse, sell, pledge, or hy-pothecate any note, bond or other obligation received by such corporation for money loaned, until such power and authority shall have been given such officer or employe by the board of directors in a regular meeting of the board, a written record of which proceedings shall have first been made upon the minutes of the corporation; and all acts of indorsing, selling, pledging or hypothecating, done by said cashier, or other officer or employs of any such bank or trust company, without the authority of the board of directors given as here provided, shall be null and void.”

It is insisted that it was the purpose of this statute to confer upon the directors the exclusive authority to determine whether or not the bank’s commercial paper should be mortgaged, and that this authority cannot be delegated to any other bank official by a general blanket resolution passed by the directors, but must be given with reference to each particular transaction in which any of the bank’s property is pledged for the payment of its debts. This argument is based, not upon any particular provision of the banking law, but upon a general construction as indicating a purpose to confine this character of authority to the board of directors. Such a construction would practically nullify the specific provisions of the statute which empowered the directors to delegate this authority to other officials. If the directors must themselves inquire into every transaction, and in every instance pass judgment upon the expediency of pledging collateral security for loans made to the bank, there would, in effect, be no transfer of that power. To delegate power means to pass it on to another, who may thereafter exercise it in a manner not inconsistent with the grant.

Borrowing money and pledging collateral security therefor is a part of the legitimate business of a banking institution. It has been generally held by the courts that, in the absence of some restrictions imposed by law or by the board of directors, the power to exercise that function belongs to the cashier or the officer who has the general management of the bank’s affairs. Thompson on Corporations, §§ 4748, 5697, 6131, and cases cited in notes. The affairs of the bank may o'ften be in such condition as to make the procuring of a loan not only proper, but urgent, and at the same time impossible without pledging collateral security. Such operations would be seriously handicapped if in each instance the board of directors must be assembled and special permission secured before the managing officers of the bank could arrange for the desired loan. Evidently one purpose of our statute was to abolish the common-law rule regarding the implied powers of bank cashiers and managing officers, and to enable the directors to withhold such authority, without the necessity of giving notice to every one who lends money to the bank upon such security. The formality and conditions which the statute prescribes for conferring this power upon subordinate officials of a bank indicate that the delegation is to be substantial, and to continue for some appreciable length of time. The statute apparently not only contemplates that the bank officials may perform the ministerial acts necessary to complete such business transactions, but, when authorized, may exercise a portion, at least, of the discretion reposed in the board of directors. Presumably this delegated power will continue till expressly or impliedly revoked. If in enacting the banking law the Legislature intended to confine to the board of directors the power of mortgaging the bank’s bills receivable taken for money loaned, that purpose could have been easily and effectually accomplished by simply forbidding the transfer of that authority to any other bank official. It is not likely that any such purpose existed when language is used which expresses the opposite intent. The fact that such authority has heretofore beeri considered among the implied powers of cashiers and general managers of banks shows that its exercise by them is not so unusual and extraordinary as to call for any extreme caution in sanctioning its express commitment by the directors.

The terms of the resolution relied on in this case are broad enough to grant the power claimed, and specific enough to cover the transaction involved in this litigation. There appears to be no good reason why the directors of the bank, having confidence in their subordinate officials, should not be permitted to intrust them with authority to do for the institution that which its condition and surroundings made proper and expedient. If the directors may transfer their right of personal supervision over one of these transactions, it would be illogical to say that they could not make a transfer which would cover more than one. When the directors, as in this instance, expressly stipulate that the delegated power is to continue till revoked, the failure to revoke should be construed as tantamount to the continued acquiescence in the transfer previously made. It will be observed that the resolution in this case does not provide that the bank’s officials shall have power to borrow money generally and pledge commercial paper as security, but limits them to loans from the appellant bank. We are therefore of the opinion that the cashier of the Longview bank had authority under that resolution to contract for pledging that bank’s bills receivable for the payment of the debt due the appellant.

The next question is: Were the negotiations between the officers of the two banks sufficient to constitute a binding agreement to mortgage the bills receivable of tha Longview bank? That an agreement to mortgage designated property, when carried so far that nothing remains undone except the-formal execution of the mortgage, may, as between the parties, be treated as creating an equitable lien, is too well settled to require discussion. As said by Mr. Pomeroy:

“The intent to give a security being clear, equity will treat the instrument as an executory agreement for such security.” 3 Pomeroy on Equity Jurisprudence, § 1237.

But the contention here made, and which appears to have been sustained by the trial court, is that there was not a sufficient designation or segregation of the property to be mortgaged as security for the loan, and for that reason' the agreement was incomplete and is unenforceable. If, 'after the conversation between the officials of the two banks regarding the payment of the drafts and the giving of the note and security, anything remained to be agreed upon by them, there would be some ground for saying the contract was incomplete; but if all the terms and conditions had been settled, and nothing remained except performance by the respective parties, then the contract falls within the class which may be enforced as an ex-ecutory agreement. The evidence shows that the cashier of the Longview bank agreed to send the note of his bank for a specified sum, to be secured by bills receivable then held by this bank .equal to $30,000, these to be first-class commercial paper. As a consideration for the execution of that note and the pledging of that collateral rhe appellant was to pay the drafts which had been presented. The evidence shows that, relying upon the strength of that agreement, the drafts were paid. At the conclusion of the conversation between the two bank officials the terms were fully agreed upon. The appellant was to pay the drafts, and the other bank was tó tránsmit a note and a specified class of security. There remained, then, nothing to be agreed upon; performance alone was required to complete the transaction. It is true no particular notes.or bills were specified, but that was deemed by the parties immaterial. All the appellant asked- for was that the security be bills receivable consisting of first-class commercial paper aggregating $30,000 in .value. Under those terms the appellant could not have demanded, and the cashier of the Longview bank was not required to select for that purpose, any particular notes or bills. He had the right to segregate and transmit the required amount of designated commercial paper then held by his bank. The appellant was interested in the value of the security it was to get, and not in the identity of the notes or bills to be pledged.

If the pledge in this instance was incomplete, it was because the cashier at Long-view failed to perform his part of the agreement. To hold that his bank was not bound is to permit a party to a contract to take advantage of his own wrong and defeat his obligation by his own default. After that agreement it was his contractual duty to forthwith select from the commercial paper held by his bank $30,000 worth of first-class bills receivable and to transmit them, together with the bank’s note for $20,000, to the appellant. The failure to do that was .a breach of the contract, not the omission of any element essential to its completeness. It would be inequitable to permit the Long-view bank, after having secured the benefit of the agreement, to escape liability through its own dereliction. The fact that its affairs are now in the hands of tbe state’s commissioner of banking and insurance does not make the situation different from what it would have been, had it remained in a solvent condition. The contestants, who are now resisting the lien claimed by the appellant, are unsecured creditors, and have acquired no rights which entitle them to protection for lack of notice of the dealings between the appellant and the Longview bank. We therefore conclude that the appellant was entitled to an equitable lien as claimed by it, and that the court erred in not so holding. The record shows that nearly all of the bank’s paper was collectible and had been collected prior to the Judgment rendered in this case. It is also undisputed that the Longview Bank, at the time this contract was' made, had on hand first-class commercial paper or bills receivable more than sufficient to comply with its agreement.

The judgment of the district court will therefore be reversed, and judgment here rendered allowing the appellant’s demand as a preferred claim, to be paid as such from the assets of the People’s State Bank now in the hands of the commissioner of banking and insurance, and that the appellees pay all costs of this appeal.
      <2=c?3?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BLALOCK v. WRIGHT.
    (No. 1951.)
    (Court of Civil Appeals of Texas: Texarkana.
    March 28, 1918.
    Rehearing Denied April 18, 1918.)
    Appeal and Error &wkey;>724(l) — Insufficient Assignment — Extent of Review.
    Where none of assignments of error in appellant’s brief point out any ruling as the subject-matter of complaint, and the court on appeal is therefore unable to consider them, the judgment will be affirmed; there being no fundamental error of which appellant can complain apparent from the record.
    Appeal from District Court, Van Zandt County; J. R. Warren, Judge.
    Suit by W. B. Wright against S. G. Blalock and others, and by the same plaintiff against W. W. Dickerson. The suits were consolidated and tried together. From decree rendered, Blalock appeals.
    Affirmed.
    Natt M. Crawford, of Grand Saline, for appellant. R. M. Lively and C. L. Stanford, both of Canton, for appellee.
   HODGES, J.

In February, 1913, the appellant, S. G. Blalock, sued A. J. Sibley to recover on four promissory notes for $178.33 each and to foreclose a vendor’s lien upon a tract of land theretofore conveyed by him to Sibley. A judgment was rendered in Bla-lock’s favor for $1,148.77 with the foreclosure of the lien prayed for. A memorandum of this judgment was entered by the judge on his trial docket, and a copy prepared by Blalock’s attorney for the clerk to use in malting the record. The copy prepared, however, left the amount of the judgment blank; and the clerk,- following this, failed to state the amount of the judgment in completing the record. Thereafter an order of sale was issued, and the clerk, acting under instructions from Blalock’s attorney, took the amount for which judgment had been rendered from the memorandum entered on the docket of the trial judge. The order of sale was placed in the hand^. of the sheriff, who advertised and sold the property to W. B. Wright, the appellee in this suit. During the pendency of the suit of Blalock against Sibley the former sold the land to W. W. Dickerson, taking in payment therefor several promissory notes. Some time thereafter Wright filed this suit against Blalock and all the parties concerned to have a judgment entered nunc pro tunc in the suit of Blalock against Sibley, and also filed a suit in trespass to try title against W. W. Dickerson to recover possession of the land. The two suits were later consolidated and tried before the court without a jury. Dickerson answered in that suit asking for cancellation of his notes in the event judgment was rendered against him in favor of Wright. After hearing the evidence judgment was rendered in favor of Wright, correcting the judgment entry as made by the clerk and entering the correct amount nunc pro tunc. Judgment was,also rendered in favor of Dickerson canceling the notes theretofore given by him to Blalock, and in favor of Wright for the title and possession of the land. Blalock alone has appealed.

Appellant’s brief contains what are styled four assignments of error. None of these point out any ruling of the court as the subject-matter of complaint. We are therefore unable to consider them.

We have examined the record, and find no fundamental error of which Blalock could complain; and the judgment is affirmed.


author: WILLSON, C. J.

text:
    POINDEXTER v. FIRST STATE BANK OF RICHLAND.
    (No. 1931.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 13, 1918.
    On Appellee’s Motion for Rehearing, April 11, 1918.)
    1. Venue <§=»7 — Special Privilege to be Sued in Counts' of Residence — Suit on Note.
    The overruling of defendant’s plea of privilege to be sued in the county of his residence is error, unless he had contracted in writing to make payment of the note sued on in the county where the suit was brought.
    2. Venue &wkey;>7 — Guaranis? Agreement — Notes.
    Under the rule that guarantor in writing of the payment of note according to its tenor and legal effect may be sued in county where note is payable, guaranty of debt evidenced by a note is not within the rule, and guarantor’s plea of privilege in action on the note to be sued in county of residence should have been granted.
    3. Venue <&wkey;32(2) — Plea of Special Privilege-Continuance as Waiver.
    Where the record shows that, while a cause was continued- for several terms, this was done each time by agreement and without prejudice to defendant’s plea of special privilege to be sued in the county of his residence, such continuances do not constitute a waiver of the plea. serted a privilege he claimed to be sued in Freestone county. The court overruled the plea. The judgment was in appellee’s favor against both appellant and Walthall, but the former alone appeals. As the reversal of the judgment is because of the error of the trial court in overruling the plea of privilege, a statement with reference to other features of the ease is unnecessary.

      Appeal from Navarro County Court; R. R. Owens, Judge.
    Suit by the First State Bank of Richland, Tex., against T. B. Poindexter and another. The defendant Poindexter filed a plea of special privilege, which was denied, and upon trial judgment was rendered for plaintiff, and the defendant Poindexter appeals. Judgment reversed and cause remanded as to the defendant Poindexter, and affirmed as to the other defendant.
    The suit was commenced in title county court of Navarro county. It was by appellee against appellant and one Walthall. The latter was sued as the maker of two past-due promissory notes, aggregating $279, payable to appellee in said Navarro county. The recovery sought against appellant was on the theory, that he had guaranteed the payment of the notes. At the time the suit whs commenced appellant and Walthall both resided in Freestone county, and never thereáfter-wards resided in Navarro county. By a plea sufficient in form and duly filed appellant as-

      Callicutt & Johnson, of Corsicana, and W. J. Bryant, of Wortham, for appellant. Richard Mays, of Corsicana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The trial court should have sustained the plea of privilege, and should have transferred the cause to Freestone county, where appellant resided, for trial. Why that court did not pursue that course does not appear from the record. It is assumed, mainly because of the absence of anything in the record showing the existence of a better reason, that it was because the court was of the opinion it appeared that appellant had contracted in writing to guarantee the payment of the notes sued upon according to their tenor and legal effect. Had it so appeared, it would not have been error to overrule the plea, for the notes were payable in Navarro county. McCauley v. Cross, 111 S. Wf 790. But we think it not only did not appear that appellant guaranteed the payment of the notes according to their terms, but that it affirmatively appeared to the contrary. One of the notes sued on was dated January 3, 1913. It was for $100, payable October 15, 1913. The other note was dated June 6, 1913. it was for $179, and 10 per cent, interest after its maturity. The undertaking of appellant was evidenced by three letters written by him to one Cox, appellee’s cashier. The first of these was dated January 4, 1912. In it appellant agreed to “become surety for and guarantee the payment” of indebtedness to the amount of $200 incurred by Walthall to appellee during the year 1912. The second of the three letters was dated January 1, 1913. In it appellant, after acknowledging the receipt from Cox of a letter advising him that Walthall was indebted to appellee in the sum of $150, said:

“It will be all right to extend to him [Wal-thall] the same accommodation the ensuing year up to the amount of $200, and I will guarantee the payment of his account up to that amount.”

The other one of the three letters was dated May 10,1913, and was as follows:

“This is to inform you that I hereby guarantee the payment of a note executed by Mr. Roy Walthall of this date, not to exceed tho sum of $175, with interest from this date at the rate of ten per cent., payable to the First State Bank or order of Richland, Texas.”

In neither of the first two of the letters did appellant say anything about a note, and the note mentioned in the other one of the letters was not one of the notes appellee sued upon.

A contention made by appellee is that appellant was in the attitude of having waived the plea, because it appeared that the cause was continued at the term of the court to which it was brought (to wit, the April term, 1914), and did not appear that during that term appellant called the attention of the court to the plea and then sought a trial thereof. The contention must be overruled; for it appears from a bill of exceptions approved by the court:

“That, while this cause was continued for several terms, the defendant Poindexter did not waive his plea of privilege, but that this cause was continued at each term of the court by agreement, without prejudice to his plea of privilege.”

So far as it is in appellee’s favor against Walthall, the judgment of the lower court will not be disturbed. But, so far as it is in ap-pellee’s favor against appellant, it will be reversed, and the cause will be remanded to the county court of Navarro county, with instructions to transfer it to the proper court in Freestone county as provided by the statutes (articles 1832, 1833, Vernon’s Statutes).

On Appellee’s Motion for Rehearing.

In disposing of the appeal this court did not determine, as appellee seems to think it did, that appellant was not liable to it for the debt evidenced by the note for $179. What this court did determine, and all it determined, was that it did not appear from the record that appellant had contracted in writing to pay in Navarro county Walthall’s indebtedness to appellee if Walthall himself did not pay same; and hence that it did not appear that appellee was entitled to maintain its suit against appellant in that county, notwithstanding appellant resided in Freestone county. Further consideration of the record in connection with the motion has not convinced us that the conclusion reached was erroneous, but, on the contrary, has rather strengthened confidence felt in its correctness.

The motion is overruled.
      ifcsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    ONEIDA KNITTING CO. v. POPULAR DRY GOODS CO.
    (No. 1336.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 10, 1918.)
    1. Sams <&wkey;201 (4) — Delivery to Carrier-Contract.
    Under a contract in which, the buyer designated shipment by rail to destination, delivery by the seller to a steamship company was not delivery to the buyer, and the seller must bear loss of goods in transportation.
    2. Appeal and Error <&wkey;1011(l) — Review-Conflicting Testimony.
    In a trial before the court without a jury, where the testimony was sharply conflicting on the point at issue, the finding of the- trial court will not be set aside.
    Appeal from Shackelford County Court; J. A. King, Judge.
    Suit by the Oneida Knitting Company against the Popular Dry Goods Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Hickman & Whitten, of Abilene, for appellant. Walter L. Morris, of Albany, for ap-pellee.
   HUFF, C. J.

The Oneida Knitting Company, appellant, brought suit against T. S. McIntyre, doing business at Albany, under the name of the Popular Dry Goods Company, ap-pellee, in the county court of Shackelford county, on an open account, itemized and verified, for the sum of $218.70; $182.26 being for certain hosiery which appellant alleged it had sold and delivered to the appellee at Philadelphia, Pa., and $36.45 being for certain salvage payments made by the appellant for and on behalf of the appellee. The ap-pellee answered by general denial, and specially answered, in substance, that at the time the purchase was made from the salesman of appellant it was agreed and understood by and between said parties that the goods so purchased were to be shipped by rail from the point of origin to the point of destination, and that the agent of appellant guaranteed the delivery of said goods by rail at Albany, Tex., on or before September 15, 1915; that appellant failed to ship said merchandise by rail and failed and refused to deliver the merchandise by September 15th as it had agreed to do. The trial was had before the court without a jury and judgment rendered for the appellee.

The statement of facts, we believe, will not authorize the inference that appellee made a written order and noted thereon the routing for the goods. It appears that the salesman of appellant called upon appellee for an order and took the order, and that he himself wrote into the order, “Morgan, M. K. & T.” This was contrary to the direction of the appellee, as it was testified by the present manager of appellee at Albany that the agreement between the salesman and ap-pellee was that the goods should be shipped by rail from the point of origin to the point of destination, and not by water. Instead of so shipping the goods, appellant shipped them by water, via the Morgan Steamship Line, through Galveston. The ship on which the goods were transported was caught in a storm in the Gulf, and as a result was grounded out from the harbor from' Galveston and the goods delayed some time and were damaged. The appellant paid certain salvage charges and advanced the same on the account of appellee, and for such salvage charges here sues the appellee. The inference is justified from the evidence that all the goods ordered did not arrive at Albany, and upon arrival of part of the goods at Albany the appellee refused to accept them, and so notified appellant.

It is contended by appellant that, upon the delivery of the goods to the carrier at Philadelphia, such. delivery would be a delivery to appellee. Ordinarily, this is the rule. Upon such delivery the title would vest in the consignee, and the loss or damage after such delivery would be his. Embree v. Lusk, 11 Tex. Civ. App. 493, 33 S. W. 155; Specialty Co. v. Kingsbury, 60 S. W. 1030. However, the buyer may designate the vehicle of carriage, and, when so designated, the order must be followed or there is no delivery. The evidence in this case authorized the trial.court to find that the appellee designated the vehicle of carriage, and that this was agreed to by the salesman of appellant. There was therefore no delivery to appellee and the goods were at appellant’s risk. Simkins on Contracts & Sales (3d Ed.) 876; Mechem on Sales, §§ 733, 736, 746; Estill v. Weaver, 19 Tex. 543; Greif v. Seligman, 82 S. W. 533; McLane v. Swernemann, 189 S. W. 282; National Novelty Import Co. v. Duncan, 182 S. W. 888; Watson v. Patrick, 174 S. W. 632; Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787.

We regard the testimony in this case as sharply conflicting on the point at issue. The appellant requests that we disregard the court’s finding of facts, and, while appellant presents rather a strong argument for such action, we do not feel that we would be justified in so doing.

The judgment will be affirmed.

HALL, J., not sitting.


text:
    TEXAS & P. RY. CO. v. AIKEN.
    (No. 1929.)
    (Court of Civil Appeals of Texas. Texarkana
    Feb. 14, 1918.)
    1. Judgment <&wkey;18(2) — Support by Pleading — Petition Against Railway and Receivers.
    A petition which may reasonably be construed as suing both a railway company and it» receivers supports judgment against the company.

      2. CakrieRS <&wkey;238 — Rights of Passenger-Person Entitled.
    Plaintiff holder of a ticket, who intended to board a train which stopped, employes of the railway being aware of the fact, was legally entitled to the rights of a passenger.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Action by Mrs.' Fannie C. Aiken against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded, unless remittitur be entered within 20 days.
    Head, Dillard, Smith, Maxey & Head, of Sherman, Geo. Thompson, of Dallas, and J. F. Holt, of Sherman, for appellant. Moore & Hardison, of Paris, for appellee.
   LEVY, J.

The appellee had a ticket entitling her to transportation over the appellant’s railway from Texarkana to' Paris and thence to Howland. She presented herself for transportation on the regular passenger train, and, as she claims, the brakeman in charge refused to permit her to board the train, and forcibly prevented her from so doing. The suit is for damages alleged to have been sustained through wrongful acts. There was a verdict and judgment for the plaintiff.

The petition may reasonably be construed, it is concluded, as suing each the railway company and the receivers. The petition therefore would support th,e judgment against the appellant, and the first assignment of error is overruled.

The second assignment of error does not afford ground for reversal. The evidence is undisputed that the train did stop, and the plaintiff made known her purpose and signified her intention to enter the car. The testimony of the brakeman shows that plaintiff was intending and offering to éntér the car and disclosed her destination. The employes were not ignorant of that fact. She was, under the circumstances, legally entitled to the rights of a passenger.

The third assignment of error is to the point that the verdict is excessive, and we agree that it is to the extent of $550.

The judgment will therefore be reversed, and the cause rerpanded, unless a remittitur be entered for that amount within 20 days.
      <&wkey;>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. REA.
    (No. 1950.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 29, 1918.
    Rehearing Denied April 18, 1918.)
    1.Negligence &wkey;28 — Use op Premises.
    An obligation rests upon the owner of premises devoted to business purposes to take reasonable care to keep them safe for the protection of persons coming upon them.
    2. Railroads <&wkey;409 — Injury to Animals— Freight Facilities.
    ’Railroad’s duty to make freight uploading points as safe as reasonable care will make them does not make it liable for the unsafe condition of parts of the premises not intended for public use, and into which the public is not invited.
    3. Railroads &wkey;3447(l) — Injury ,to Animals —Freight Facilities — Instructions.
    In action for injuries to mule on railway track, instruction that the railroad must provide a reasonable approach to freight unloading points, and that plaintiff, hauling material from cars., had a right to use the most reasonable and convenient approach, whether provided by the railroad or not, was erroneous.
    Appeal from Navarro County Court; H. E. Traylor, Judge.
    Action by L. 8. Rea against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    The consignees had the appellant company to place cars of gravel at Jester switch to be unloaded. Appellee used his team in hauling the graveh from the cars to the public road; and, in crossing the main line track, one of the mules caught his right foot between the rail and a protruding spike in the cross-tie and was injured. The action was for damages to the mule. At a siding called Jester switch on appellant’s road the main track runs east and west. A public road rhn-ning north and south intersects the track. A spur track connects with the main track at the point of the crossing, and runs on the south side of and about 21 feet from the main track in a westerly direction for about 170 yards. The west end of the spur track is open, and does not connect with the main track. A private road running north and south crosses the main track directly by the west end of the spur track. A platform, for loading and unloading cars is situated on the south side of and adjacent to the spur track, and about 70 yards distant from the east end of it. There were two piles or more of cord-wood stacked near and parallel to the spur track, and situated about 8 feet from the west end of the platform. The cars were placed on the spur track near the platform. Appellee claims that the gravel cars were so placed on the side track as to be, by reason of ’the above surroundings, inconvenient and inaccessible by other approaches than the one undertaken to be used by the driver of the team. The way used by the driver of the team was a way made by the haulers of the gravel leading from the gravel cars in a northerly direction across the main line track, then to the public road. The way by the platform on the south side of the side track was not used by the plaintiff’s driver because, as claimed, of inconvenience in use. The verdict and judgment were in favor of plaintiff.
    R. S. Neblett and Adair Dyer, both of Corsicana, for appellant. Dexter Hamilton and Ormond SimpMns, both of Corsicana, for appellee.
   LEVY, J.

(after stating the facts as above). The appellant pleaded as a defense that at the time of the injury to the mule the driver of the team was using a portion of the premises not provided by the railway company as a crossing or approach to the platform or cars of gravel. And error is predicated upon the court’s charge, reading, in part, as follows:

“You are further instructed that a person engaged in the lawful occupation of hauling material from cars placed on a railway track has a right' to use the most reasonable and convenient approach to said cars, and is not required to use an unreasonable and inconvenient approach if a more reasonable and convenient approach is obtainable; and it is the .duty of the railroad company to provide a reasonable and convenient approach if same can be done, and in determining this point you have a right to consider the condition of the tracks and grounds and the obstructions, if any, surrounding the cars to be unloaded.”

The effect of the court’s charge was to tell the jury that, if the way provided by the railway was not a convenient and reasonable approach to the cars to be unloaded, the plaintiff had the right to choose and use “the most reasonable and convenient approach to said cars.” An obligation rests upon the owner of premises devoted to business purposes to take reasonable care to keep them safe for the protection of persons coming upon them. • But this duty does not extend so far as to make the company responsible for the unsafe condition of those parts of the premises not intended for use by the public, and where they are not expected or invited to go. And unless there be a justifying necessity to escape from injury or a defect in the usual way provided, the plaintiff would have no right to use a way of his own selection. The charge, on the facts, was erroneous in authorizing the plaintiff to go a way of his own selection because it was “the most reasonable and convenient approach to said cars.”

Judgment reversed and cause remanded.
      @^For other cases see same topic and KBY-NUM.BER in all Key-Numbered Digests and Indexes


text:
    PAIRE et al. v. GOFF et al.
    (No. 1924.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1918.
    Rehearing Denied Feb. 7, 1918.)
    1. Trespass to Try Title <&wkey; 18 — Outstanding Title.
    Where plaintiff in trespass to try title had before the trial sold the land to a third party and given him a deed thereto, and such grantee gave the plaintiff an express written authority to continue and prosecute the suit in her name for him, an assignment claimed that there was an outstanding title in the grantee was without merit.
    2. Trial &wkey;> 194(10) — Instruction—'Weight op Evidence.
    In trespass to try title, an instruction that the record title to the land was shown to be in plaintiffs, and that they were entitled to recover the title and possession and to find for plaintiffs on such issue, unless finding for defendants on their plea of limitations, was not objectionable as a charge on the weight of the evidence; the sufficiency of the record title being for the court, unless plea of limitations is established.
    Error from District Court, Marion County; J. A. Ward, Judge.
    Trespass to try title by E. W. Goff and others against Bose Paire and others. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    Armistead & Benefield, of Jefferson, for plaintiffs in error. Schluter & Singleton, of Jefferson, for defendants in error.
   LEVY, J.

The suit is by the defendants in error against the plaintiffs in error in trespass to try title to 300 acres of land and for damages for cutting timber on the land. The defendants answered by denial, plea of •not guilty, and the ten-year statute of limitation. There were other parties defendant, but their rights are not involved in the appeal. The case was tried before a jury. There was a verdict and judgment for the plaintiffs in the suit for the title and possession of the land and for damages and rent. The plaintiffs below claim title by regular chain of title from the state down to themselves. The verdict of the jury involves the finding of fact against the defendants on their plea of limitation of ten years’ adverse possession. The evidence supports the finding of the jury.

By the first assignment of error it is contended that there was an outstanding title in J. M. Niblett, and upon this ground there should have been an instructed verdict in the case. It does appear that 'Mrs. Goff, the plaintiff, about 30 or 40 days before the trial, sold the land to J. M. Niblett and gave him a deed thereto; but it also appears that J. M. Niblett gave Mrs. Goff the express written authority, which was in evidence, to continue and prosecute the suit in her name for him. J. M. Niblett appeared as a witness an the case and testified. In view of the authority of Mrs. Goff to prosecute the suit, it is believed that the assignment should be overruled.

The second assignment of error complains of the paragraph of the court’s charge reading:

“You are instructed in this case that the record title to the said land is shown from the evidence to be in the plaintiffs, and that they are entitled to recover .from the said Bose Paire and Melissa Morrow and her husband the title and possession of the land; and you are therefore instructed to find for’the plaintiffs on said issue, unless you find for the defendants Bose Paire and Melissa Morrow and her husband on their plea of limitation of ten years under the instructions hereinafter given you.”

The objection made to the charge is:

“That it is on the weight of the evidence, and the question of plaintiffs’ title should! be submitted to' the jury, as they must recover on the strength of their own title by the ■ evidence as introduced to be passed on by'the jury.”

Strictly speaking to the objection, as made, to the charge, it is concluded that it should be overruled. For the charge, as worded, is not on the weight of the evidence. And it is a matter of law for the court, and not a question of fact for the jury, to declare what is a sufficient record title to authorize a plaintiff to recover unless the limitation pleaded by the defendant should be proven in fact.

There is evidence in the record to support the finding of the jury that the defendants did not hold possession of the land adverse to the owner for a period of ten years, and it is not believed that the error complained of in the third assignment of error affords ground for a reversal in the facts of the case. The third and fourth assignments are overruled.

The judgment is affirmed.
      ,g£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ANTONE et al. v. COWAN.
    (No. 1916.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 28, 1918.)
    Appeal and Error’ &wkey;U001(l) — Review-Findings op Fact. ' ■
    The evidence making peculiarly an issue for the jury, their finding, in trespass to try title, that improvements by defendants were not made in good faith as to location of boundary, will be sustained on appeal. ■
    Appeal from District Court, Red River County'; Ben H. Denton, Judge.
    Action by W. E. Cowan against F. A. Antone and others. Judgment for plaintiff, and defendants. appeal.
    Affirmed.
    A. P. Park, of Paris, and Chambers & Black, of Clarksville, for appellants. Lennox & Len-nox, of Clarksville, for appellee.
   LEVY, J.

The appellee brought the suit in the form of an action of trespass to try title. The appellants pleaded not guilty and limitation of five and ten years. The defendants further specially pleaded that the line between their land and that of the plaintiff was agreed upon and established at the time they went into possession, and that the improvements were made in good faith. The material inquiry in the case was as to the exact location of the plaintiff’s southwest corner.' The plaintiff and those under whom he claims, and the defendants and those under whom they claim, were the owners of adjoining tracts situated in the same survey, and they hold under a common source of title. The land claimed by the plaintiff was owned by W. A. Arnett and wife, as was also the land claimed by the defendants. The land claimed and owned by the plaintiff was sold by the common grantors in 1886, before the land claimed and owned by the defendants was sold to them by the common grantors. The defendants made valuable improvements on the land after they went into possession. The lands are on the Red river, and the evidence shows that the river has at different times materially changed its channel.

The case was tried on special issues, and on the verdict the court entered judgment for the plaintiff. The jury made the finding that the south and west boundary lines claimed by (lie plaintiff were the true boundary lines between the lands of the plaintiff and the defendants. They further found that the improvements made on the land by the defendants enhanced the value of the land $6 an acre, and also that the defendants did not make such improvements in good faith.

The finding by the jury that the improvements made by the defendants were not made in good faith is challenged by the appellants as being contrary to the evidence. Owing to the many changes in the river and the consequent washing of the land, an uncertainty appears in the evidence as to the exact location in some particulars of the different lines and corners of the lands in suit. The evidence offered by the defendants tended strongly to show that the southwest corner of the plaintiff’s tract was considerably north of where the plaintiff claimed it to be. And believing as the defendants did that the southwest corner of the plaintiffs’ land was at a point north of where the plaintiff here insists it is, the defendants, it may be said, had, from their viewpoint, reasonable ground for believing that they owned the part of the land the improvements were placed on. On the other hand, the evidence offered in behalf of the plaintiff sufficiently authorizes a finding, as made by the jury, that the southwest corner was in fact where the plaintiff claims it to be. There is evidence that the improvements were placed on the land by the defendants after knowledge that the land was so claimed by the plaintiff. It is believed the evidence makes peculiarly an issue for the jury to settle, and it is concluded therefore that their finding should be sustained.

It is concluded that the evidence does not sufficiently raise an issue as to an agreed line, as contended by appellants, to warrant submission to tbe jury, and therefore the second assignment of error is overruled.

Affirmed.


text:
    TEXAS & P. RY. CO. v. REEVES et ux.
    (No. 1849.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 18, 1918.
    Rehearing Denied March 21, 1918.)
    Railroads <&wkey;222(2) — Nuisance — Roundhouse-Negligence.
    Regardless of its negligence, a railway is liable for damages for depreciation in value of plaintiffs’ homestead and for physical discomfort, etc., resulting from the location of a roundhouse within 800 feet of plaintiffs’ homestead after it had begun to be used as such, since, if in the lawful conduct of its business a railway company does something which impairs the value of adjacent property by interfering with its normal use and enjoyment'by the owner, it imposes a burden differing in no material respect from an appropriation of the property itself.
    Appeal from District Court, Gregg County; John M. Tipps, Judge. ■
    Suit by Elmer E. Reeves and wife against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Young & Stinchomb, of Longview, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellant. Lacy & Bramlette and Mc-Cord & Campbell, all of Longview, for appel-lees.
   HODGES, J.

The appellees, Reeves and wife, filed this suit against the appellant for the purpose of recovering $7,500 as damages for depreciation in the value of their homestead and for physical and mental discomfort and annoyance resulting from smohe, noise, and soot emanating from appellant’s roundhouse located near the property. The record shows that the following facts were established upon the trial: The appellees were the owners of a house and lot, which they occupied as a residence, situated within 800 feet of the appellant’s roundhouse. The roundhouse of the appellant was located at that point after the property had been acquired by them and its use as a homestead begun. The operation of the roundhouse and its appurtenances, including coal chutes, etc., produced smoke, soot, dust, unpleasant vapors, gases and noises, and the property of the appellees was injured by reason of those conditions. The value of their property before the construction of the roundhouse amounted to $1,750, and the depreciation resulting from the construction of the roundhouse amounted to $550; and the appellees had sustained damage resulting from the annoyance and inconvenience incident to the location of the roundhouse in the sum' of $100/ The jury also determined that -those damages were not such as were suffered by the community in general. Upon those findings the court entered a judgment in favor of the appellees for $650.

It is contended by the appellant in the first assignment of error that ownership of the property was not proven. While the evidence upon that issue was not as clear as it might have been, we think it was sufficient in view of the fact that there was no conflicting evidence tending to prove that the appellees did not own the property. The questions of law presented are substantially the same as those involved in Texas & Pacific Ry. Co. v. Taylor, 200 S. W. 1117, recently decided by this court (opinion not yet officially published). In that ease Chief Justice Willson discussed at some length the identical authorities here relied upon, and announced a rule which we think is equally applicable to this case. It will therefore be unnecessary to repeat the discussion.

Appellant contends that because there was no negligence alleged or proven there was no basis for a judgment in favor of the ap-pellees for damages. The appellees’ right of recovery in this instance is founded upon the fact that their property has, in effect, been appropriated in part by the operation of the appellant’s roundhouse. If in the lawful conduct of its business the railway company does something which impairs the value of adjacent property by interfering with its normal use and enjoyment by the owner, it imposes a burden differing in no material respect from an appropriation of the property itself.

The judgment of the district court is affirmed.
      <g^3For other cases see same topicand KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    RHODES v. GULF, C. & S. F. RY. CO.
    (No. 336.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 2, 1918.
    Rehearing Denied April 17, 1918.)
    Carriers <&wkey;134 — Dama&e to Goods in Transit — Evidence.
    Plaintiff establishing a prima facie case by evidence that at destination corn near doors of car was wet, defendant railroad company failed to rebut prima facie case thus made by evidence that it tested the car door by turning water from a. hose on it; there being no evidence that the car did not leak while moving against a blowing rain.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Action by C. C. Rhodes against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Sam. T. Robb and Wintson McMahon, both of Houston, for appellant. R. W. Franklin, of Houston, and Terry, Cavin & Mills, of Galveston, for appellee.
   KING, J.

This suit was filed in the county court at law of Harris county by appellant, doing business under the name of G.C. Rhodes Grain Company, against the ap-pellee, claiming damages in the total sum of $332.12, $282.47 of which is claimed as the difference between the reasonable market value of a car of corn in its condition at the time of its arrival in Houston, and the reasonable market value of same had it been conveyed and transported with ordinary care and reasonable diligence and delivered in good condition. The balance claimed is alleged to be $49.65 incurred as expense in preparing the damaged com for market. A trial before the court resulted iu a judgment in favor of appellee. Prom this judgment appellant has perfected his appeal.

The entire court has given very careful and thoughtful consideration to the record, and have reached the conclusion that, from the evidence introduced on the trial of the case, the weight and preponderance of same Is so against the appellee that it is clearly wrong, and that the judgment of the lower court should be reversed, and the cause remanded for another trial.

The facts proven, in brief, disclose that on February 12, 1915, the firm of Edwards Bros, loaded at Tahoka, on appellee’s line of railroad, a carload of said corn, consigned to appellant at Houston, and that the -car was on the road about 12 days, and arrived in Houston within a reasonable time from the date of shipment. A. J. Edwards and M. H. Edwards, the sellers, testified that they loaded the corn at Tahoka, and that it was in good, dry condition; that, while they did not inspect each sack in every load of corn, the most of same having been bought from wagons, they did, in fact, inspect each load of corn, and examine a number o'f sacks in each load; and that the corn was in good, dry condition when delivered to the railroad company. The testimony is uncontradicted that the corn arrived in Houston in the damaged condition asserted by appellant. The testimony of appellant and others discloses that the earn near each side door of the car was the corn that was wet and damaged, and that the sacks near and next to the doors of the car were wet on the outside, and further that the floor of the car was wet near each of said doors, and that the wet corn was confined to the corn near the car doors; that the car came to Houston under its original seal. The railroad company put on proof, which is uncontradicted, that it had its car inspector to inspect the ear as soon as complaint had been made to it by Rhodes of the damaged condition of the corn, and the inspector testified that he examined the roof of the car, and that the same was in good, sound condition and would not ,leak, and that the roof was only a few months old; that it was raining during some of the times that he inspected the car while it was standing in the yards at Houston, and the car did not leak; that the doors of said car fit tight, and under ordinary .conditions rain would not come through the doors of said car; that he turned water from a hose on the ear at another time, and it did not leak. This testimony is undisputed. lie further testified, however, that, while the car would not leak under ordinary conditions, .he could not testify as to whether or not rain would blow in at the doors of the car when the same was in motion, and especially if it was a blowing rain, but that under ordinary circumstances the car would not leak.

The facts as above recited, in substance, were found by the trial court in his findings of fact, and from this testimony the court concluded, as a matter of law, that, while plaintiff had made out his case as to the damaged condition of the corn upon its arrival in Houston, he had failed to prove by a preponderance of the evidence that said corn was loaded in good condition, or that its damaged condition was due to the negligence of the railroad company, and that he therefore found for the railroad company.

While the record discloses, through the interrogatories propounded to the Edwards-Bros, by the railroad company, that it was in possession of the names of a great many of the farmers who delivered most of the corn in wagons at the car door to Edwards Bros., yet it did not introduce their testi-' mony as to the condition of the corn. The ■testimony of Edwards Bros., and the fact that the corn was wet at the doors, and that the-sacks were wet on the outside in the vicinity of the doors, and that the floor around the doors was wet, becomes so convincing to us. that we are unwilling to- let the judgment stand, simply upon the proof as to the condition of the car, especially when the inspector-states that he did not know whether rain would blow in the ear doors while the same-was in motion; his inspection being while-the car was standing.

The judgment is therefore reversed and remanded to the lower court for further development upon another trial.
      <&wkey;>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    DAGLE et al. v. SABINE VALLEY TIMBER & LUMBER CO. et al.
    (No. 2474.)
    (Supreme Court of Texas.
    May 1, 1918.)
    1. Public Lands <&wkey;176(2) — Land Grants AND 'CERTIFICATES — TRANSFER OR .ASSIGNMENT- — SUB SEQUENT PATENT.
    A subsequent patent inures to the transferee of a right to a land grant or the assignee of a land certificate, though the transfer or assignment does not expressly show an intention to convey the land or contain a covenant of warranty, and neither the heirs of the transferor or assignor in such case have title or color of title to support limitation of three years as to the land.
    2. Trespass to1 Try Title <&wkey;25 — Stale Demand as. Defense.
    Legal title to land cannot.be defeated by a plea of'stale demand.
    3. Appeal and Error <&wkey;1010(l) — Review-Findings of Fact.
    Findings of fact below supported by evidence in the- record will not be disturbed by the Supreme Court on writ of error.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. L. A. Cagle and others against the Sabine Valley.Timber & Lumber Company and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals (149 S. W. 697), and plaintiffs bring error.
    Judgment of Court of Appeals reversed, and judgment of the district court affirmed.
    J. M. Sanders, of Center, and Oliver J. Todd, of Beaumont, for plaintiffs in error. Tom C. Davis and Jno. T. Garrison, both of Houston, Greers & Nall, of Beaumont, Baker, Botts, Parker & Garwood, of Houston, and Davis, Davis & Davis, of Center, for defendants in error.
   GREENWOOD, J.

The plaintiffs in error recovered a judgment in the district court against defendants in error for 23,-935,000 square varas of land in Shelby county, except three small tracts adjudged to the W. R. Pickering Lumber Company. The Court of Civil Appeals of the Sixth Supreme Judicial District of Texas reversed this judgment on the ground that defendants in error had established title to some interest in the land, under the statute of limitations of three years, and remanded the cause, for the reason that the court was unable to say what interest should have been recovered by one of the plaintiffs in error, who was held not shown to be barred. 149 S. W. 697. The writ of error was granted because it was made to appear, on application by plaintiffs in error, that the judgment of the Court of Civil Appeals practically' settled the case.

The defendants in error claim the land under conveyances from certain heirs of Archibald. Smith, who was an immigrant of the year 1826, and who had become entitled, before the Revolution, to a survey of a league and labor of land. The tract in controversy was patented by the state to the heirs of Archibald Smith on May 5,1849. Prior to February 4, 1838, Mark Hailey had become the transferee of Archibald Smith’s right to the land, and, on that day a certificate was issued to Mark Hailey, as assignee of Archibald Smith, for a league and labor, under which the tract in controversy was located and surveyed.- Our decision of the controlling questions in this case depends on the determination of the legal effect of the patent to the heirs of Archibald Smith, after Smith, in his lifetime, had transferred his right to the land to Mark Hailey, and after Hailey had procured the certificate and had caused the land to be located and surveyed thereunder, as assignee of Smith.

It is contended in behalf of defendants in error: (1) That, since there is no proof of any warranty -in connection with the transfer or assignment from Smith to Hailey, the right in the land acquired by Hailey and his heirs was purely equitable, and is now barred as a stale demand; (2) that, the patent having invested the heirs of Archibald . Smith with the legal title, those claiming under them had title or color of title to support three years’ limitations.

There are expressions in the opinions of this court which seem to lend some support to the proposition that it is only where a transfer of a' right to a land grant, or where an assignment of a land certificate, expressly shows an intention to convey the land to be acquired thereunder, or contains a covenant of warranty, that the legal title under the patent will inure to the transferee or as-signee. Barroum v. Culmell, 90 Tex. 94, 37 S. W. 313; Satterwhite v. Rosser, 61 Tex. 166. The cases cited actually decided nothing more than that covenants of warranty or express language manifesting an intent that the transferee was to have the land, when ' located, had the effect to make the patent inure to the benefit of the transferee. These decisions are unquestionably sound, but it by no means follows that a contrary effect must be given a patent to one who has transferred his right to land, or his land certificate, because of the absence from the transfer of a covenant of warranty or of express language such as is above mentioned.

In our opinion, the very nature of a transfer of the right to a grant, or of a transfer of a land certificate, plainly, implies the purpose of the transferor that the land itself and the final title shall belong to the transferee, and to fail to give a subsequent patent to the transferor, or' his heirs, the effect of inuring to the benefit of the transferee would be to defeat the essential object of the transfer.

Section 10 of the general provisions of the Constitution of the Reffublic of Texas guaranteed the title to a league and labor of land to any citizen who held a transfer of the right to same from a colonist. The right of the colonist was hut an inchoate right to the land, and it cannot now be questioned that such right was the subject of transfer, and that a transfer was fully protected by section 10. Johnson v. Newman, 43 Tex. 628. It appears to be held generally that, where a grantor quitclaims an inchoate or incomplete right to land, the subsequent confirmation or completion of that xight, in the name of the grantor, as by patent, inures to the benefit of the grantee. 10 R. C. L. 680; 16 Cyc. 695; note, 35 L. R. A. (N. S.) 1188. This conclusion is founded on the law of estoppel as well as on the doctrine of relation. Landes v. Brant, 10 How. 348, 13 L. Ed. 449; Massey v. Papin, 24 How. 364, 16 L. Ed. 734; Wholey v. Cavanaugh, 88 Cal. 136, 25 Pac. 1112. The Texas cases sustain the same conclusion.

In Merriweather v. Kennard, 41 Tex. 281, one Eordtran proved merely that an unconditional certificate had been issued to him as assignee of one Merriweather. The court held:

“The patent was issued in 1848, long after the death of Merriweather; and though it issued to him, it inured to the benefit of Ford-tran, as his assignee.”

The Supreme Court declared in Humphreys v. Edwards, 89 Tex. 516, 519, 36 S. W. 333, 434, that the opinion of Chief Justice Light-foot stated the grounds on which their conclusions were based. In that opinion, it was held that if an administrator’s sale passed the title of an estate to a land certificate, “and then such certificate was located by the purchaser upon the land in controversy, even though the patent should subsequently be issued in the name of George P. Humphreys, the original grantee, or his heirs, the superior title would inure to the benefit of the purchasers of such certificate, and their ven-dees.” The decision is followed in Morgan v. Baber, 40 S. W. 27, and in Broussard v. Cruse, 154 S. W. 350. To the same effect is Davis v. Bargas, 12 Tex. Civ. App. 59, 33 S. W. 548.

We cannot affirm the holding that the individuals who were the heirs of Archibald Smith at the date of the patent acquired any personal right thereunder.

In Fishback v. Young, 19 Tex. 515, where the land certificate in controversy was issued to the heirs of one Cornelius, it is said:

“They [the children] have no personal or individual right to the grant. They can claim only as representatives of the deceased. * * * Let the grant be issued as it will; if the issue be to persons representing, in form or in fact, the deceased, it must inure to the benefit of all interested in the estate.”

The patent made complete the title which had its origin in the certificate issued to Mark Hailey, by virtue of a right previously transferred to him. “The title relates to its origin, and must take the impress of its character from it.” The patent therefore inured to the benefit of Mark Hailey as the assignee of Archibald Smith. Weldet v. Lambert, 91 Tex. 521 to 526, 44 S. W. 281 p Fields v. Burnett, 49 Tex. Civ. App. 446, 108 S. W. 1050. It follows that neither the heirs of Archibald Smith nor any claimant under them had “title or color of title” to support limitation of three years. ,

It is clearly stated in Grigsby v. May, 84 Tex. 254, 19 S. W. 343, and in Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1143, that there can be but one regular chain of transfers from the sovereignty of the soil to a grant, and that “a conveyance made by the original owner, after he had already conveyed whatever right he had, is collateral, and can never connect a person claiming under it with the sovereignty of the soil.” This results from the want of power in the original grantee or his heirs to convey the title granted by the state, after having executed a transfer designed to invest the purchaser with that very title, and after the title under the grant has inured to the purchaser.

The opinion in Grigsby v. May expressly affirms the decision in Gould v. West, 32 Tex. 339, of the question under consideration, which decision is expressed in the following language:

“The ancestor having disposed of hfa right in his lifetime, and the title, when the patent issued, having inured to the benefit of his ven-dee, the heir had neither title nor color of title by a regular, or an irregular, consecutive chain of transfer from the sovereignty of the soil. Without such title, or color of title, the plea (i. e., of three years’ limitation), is unavailing.”

Bearing in mind that we have already determined that at least after the issuance of the patent Mark Hailey and his. heirs had both the legal and equitable title to the land, we but reaffirm Baldwin v. Root, 90 Tex. 546, 40 S. W. 3, followed in Illies v. Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 917, and other eases, when we decide that those holding under the heirs of the patentee had neither title nor color of title to support limitation of three years.

The .plea of stale demand, of course, could not be interposed to defeat the legal title of plaintiffs in error. Duren v. H. & T. C. Ry. Co., 86 Tex. 291, 24 S. W. 258.

As to the defenses of bona fide purchasers and presumption of a reconveyance from Mark Hailey to Archibald Smith, the case at most presents only questions of fact which have been determined against defendants in error, and which, on this record, we would not be authorized to disturb. Herndon v. Vick, 89 Tex. 475, 35 S. W. 141; Baldwin v. Goldfrank, 88 Tex. 258, 31 S. W. 1064; Poland v. Porter, 44 Tex. Civ. App. 334, 98 S. W. 217.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.
      igcaRor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes