text:
    BYBEE et al. v. AUSTIN & RILEY.
    (No. 1.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1915.)
    1. Costs <&wkey;32 — Preclusion.
    In a suit on notes, where plaintiffs did not admit that the amount defendants claimed was due was the correct amount, and defendant made no tender, before filing of suit, of such amount, plaintiffs could recover their costs, though through the admission of a small credit they recovered less than they originally sued for.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dee. Dig. &wkey;32.]
    2. Pleading <&wkey;>265 — Joinder oe Issue.
    In a suit on notes, where the plaintiffs, in their first supplemental petition, denied the allegation of defendants, in their first amended original answer, that they were entitled to a credit of $600, issue was properly joined on the point, and the credit was not admitted, I though plaintiffs, in their second supplemental petition, did not deny the credit repleaded by defendants in their second amended answer.
    [Ed. Note.- — For other eases, see Pleading, Cent. Dig. § 806; Dec. Dig'. &wkey;>265.]
    3. Pleading <&wkey;412 — Joinder on? Issue — Waiver or Failure.
    In an action on notes, where plaintiffs failed to deny the allegation of defendants’ second amended original answer that they were entitled to a credit of $600, but the defendants in no manner sought to avail themselves of their statutory right to take such credit as confessed, but introduced evidence as ' if issue had been joined as to the credit, defendants waived plaintiffs’ failure to deny the allegation of the credit, and could not complain of judgment not allowing it.
    [Ed. Note. — For other cases, see Pleading, Oent. Dig. §§ 1387-1394; Dec. Dig. &wkey;412J
    4. Banks and Banking <&wkey;156 — Collections — Agent to Collect Draet.
    Where the makers of notes lodged a draft on a lumber company with a bank with which the notes had been lodged for collection, to collect and apply the proceeds in payment of the notes, such bank was the agent of the makers in its effort to collect the draft, not of the holders of the notes, and the latter were not chargeable with its negligence in attempting to collect, since the holders were not parties to the transaction between the bank and the makers concerning a matter outside the scope of the bank’s agency with the holders to collect the notes.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 539-546; Dec. Dig. <&wkey;> 156.]
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by Austin & Riley, a partnership •composed of R. D. Austin and J. P. Riley, against Charles Bybee and J. I. Wood. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    McCall, Crawford & McCall, of Conroe, for .appellants. F. McDonald, of Montgomery, for appellee.
   CONLEY, C. J.

In this cause the appel-lees, Austin & Riley, a partnership composed of R. L. Austin and J. P. Riley, sued J. I. Wood and Chas. Bybee, appellants, on a promissory note, executed by the appellants to the appellees on the 17th day of July, 1912, said note being for the sum of $3,000, and due and payable $300 on or before the 1st day of October, 1912, and $300 payable on •or before the 1st day of every succeeding month, until the full sum of $3,000 was paid, bearing interest at the rate of 10 per cent, per annum, and providing for the usual 10 per cent, attorneys’ fees for collection. The note was given in part payment for certain pine timber growing on the lands belonging to the appellees, and which timber had been purchased by the appellants from appellees, a vendor’s lien being reserved therein, to secure the payment thereof. At the time of the execution of the note, and as additional security for the payment of the same, the appellants also executed a deed of trust, in favor of appellees on certain lands in Montgomery county, Tex., and also upon certain sawmill equipment and machinery, the property of appellants. A number of payments were set out in the petition, as credits on the note, and judgment was asked for the balance due, and also for foreclosure of the lien securing the payment of the note.

Appellants’ pleadings admitted the execution of the note, the creation of the lien securing the same, and their joint and several liability on said note, but claimed that, in addition to the credits allowed in appellees’ pleadings, they were also entitled to a credit of $30.40 (which credit was subsequently admitted and allowed by the appellees), and a further credit of $600, and as to this item, the appellants alleged:

“And defendants say, by further answer herein, that they are entitled to a further credit of $600 on the note sued on; that check was drawn by them-on the Derby Lumber Company of Monterey, Mexico, in favor of Austin & Riley [appellees], and said check became the property of Austin & Riley; and defendants charge that the said Austin & Riley collected said check of $600, and that said amounts should be applied as a credit on the note sued on herein. And defendants further allege by way of answer that said check for $600 was a valid check and worth $600 at the date of delivery, and, if same had been promptly presented and due diligence employed in its collection by plaintiffs, or its agents, that same would have been paid, and they would have received proper credit therefor, and if same was not collected, it was due to the carelessness and negligence of plaintiffs and other agents, and defendants suffered a loss of $600.”

The case was submitted to the court without a jury, and the learned trial judge, after hearing the issues involved, rendered a judgment in favor of the appellees for the sum of $954.27, being the balance due on said note, and also rendered judgment in favor of appellees for interest and attorneys’ fees and all costs of suit, and foreclosure of all liens as prayed for, and denied appellants credit of $600.

Appellants’ first assignment of error assails the judgment of the court upon the theory that the court erred in rendering judgment for costs of suit against them, for the reason that after the original petition had been filed, and after the defendants had filed their answer setting up the cerdit of $30.40 and during the progress of the case, the ap-pellees admitted the credit of $30.40, and therefore the costs should have been assessed against the appellees. If a suit is brought on a note and the plaintiff fails to give all the credits thereon to which, it is rightfully entitled, and defendant afterwards sets up certain credits in an answer, and the plaintiff by subsequent pleadings admits the credits, and the defendant thereupon tenders to the plaintiff the amount of his debt, and in the trial of the cause make proof that he offered to pay such amount before the suit was filed, then the costs, as a matter of course, should be assessed against the plaintiff. In this case, however, the appellants were not only claiming a credit of $30.40, which was admitted, but also a credit of $600, which was denied, and upon which issue was joined. Paragraph 6 oí defendants’ second amended original answer contains the following allegations:

“Defendants say if plaintiffs will allow all the credits dh said note, which said note is entitled to, including $.‘50.40, and the $600 referred to, that they are willing to pay the plaintiffs' the amount of said note, after talcing off and deducting all the credits said note is entitled to.”

There was no admission upon the part of appellees that the amount appellants were claiming to be due was the correct amount, nor is there any evidence of the tender of such an amount before the filing of the suit, even though, for the sake of argument, it be conceded that the contention of appellants as to the amount due on said note is correct. We know of no rule which authorizes or justifies the assessment of costs against the plaintiff where, simply in a controversy over the amount actually due, he recovers less than he originally sued for. There is no merit in this assignment of error, and it is overruled.

Under appellants’ fifth and sixth assignments of error, which are grouped, it is contended that the trial court erred in not allowing appellants’ $600 credit: First, for the reason that the allegations as to this subject was new and affirmative matter set up in the second amended original answer, and was not denied by appellees, and the same, therefore, should have been taken as confessed, and, second, that the First State Bank of Montgomery, to whom appellants had sent the $600 draft for collection against the Derby Lumber Company of Monterey, Mexico, the proceeds of which was to be applied to the payment of said $3,000 note, then in the hands of said bank for collection, was the agent of appellees, and that said bank, as well as the appellees, were guilty of negligence in failing to present said draft for payment to the Derby Lumber Company of Monterey, Mexico, within a reasonable time, and that if it had been so presented, said sum of $600 would have been realized, and the appellants would have received an additional credit for that amount on said note.

In the trial of this cause, the transcript shows the following pleadings as being before the court: (1) The original petition filed March 11, 1914; (2) appellants’ second amended original answer, containing, among other things, the allegation of the $600 credit as hereinabove referred to, filed October 14, 1914; (3) appellees’ “Replication to Defendants’ First Original Amended Answer,” which may more properly be designated, “Plaintiffs’ First Supplemental Petition,” filed October 6, 1914. This pleading, in substance, denies that the appellants are entitled to a credit of $600 by way of offset for the draft given to appellees on said lumber company, and denies that such check was ever given to the appellees, or to either of them, to be applied as a credit on the note. It sets out, further, tha£ on or about the 5th day of May, 1913, the appellants delivered to the First State Bank of Montgomery for appellees a draft drawn by them on the Derby Lumber Company of Monterey, Mexico, for the sum of $600, in favor of appellees, and to be credited upon the note sued upon when collected, but that payment was refused, and said draft dishonored and returned to appellants. This pleading is duly verified. On October 14, 1914, the day of the trial of this cause in the lower court, and presumably in response to the second amended original answer of appellants, which was filed on that day, the appellees filed a pleading designated “Replication to Defendants’ Second Amended Original Answer,” which more properly should be designated, “Plaintiffs’ Second Supplemental Petition,” and which pleading contains a general demurrer and general denial to the second amended original answer, and also contains these further allegations:

“And for further replication to defendants’ said second amended original answer say that the payment of $38, therein set up, is the same and identical $30 payment set up in defendants’ first amended original answer, and which plaintiff allowed in its replication thereto, and is the only credit that defendants are entitled to, except those credits on the back of the note and set up in plaintiffs’ original petition.”

This pleading is also verified. The due order of the filing of these pleadings is in strict compliance with the rules governing such matters, except in designating the name of each successive plea. It was not necessary for appellees, when appellants filed their second amended original answer, to deny in the second supplemental petition the same allegations which they had previously denied by the first supplemental petition, and which allegations had been repleaded by appellants in the second amended original answer. There is therefore no merit in the contention that appellees by proper pleadings had not joined issue on the alleged $600 credit.

It would further appear from the statement of facts filed in this cause that in the trial before the court the plaintiffs introduced the note herein sued upon and the deed of trust and rested; that the appellants then introduced Charles Bybee, one of the defendants in the case, who, after being duly sworn, testified to placing the $600 draft on the Derby Lumber Company in the hands of the bank as a credit on said note, his subsequent dealings with the bank, how the draft was handled by the bank, his inability to obtain any information concerning the draft, and on other features respecting the draft. If it be conceded that appellees nowhere denied the allegations as to the $600 credit, it is apparent from the record that appellants in no manner sought to avail themselves of the statutory right of taking, as confessed, the facts stated in the second amended original answer, and which it is contended were not controverted by the appellees. But upon the other hand, evidence was introduced by them as if issue was joined on these allegations. It was the duty of appellants, if they desired, to avail themselves oí a failure of the appellees to controvert any of the allegations in the pleadings, to have asked the court for Judgment upon the pleadings as to such particular matters. Under such circumstances, the failure to deny the allegations of the $600 credit, conceding, for the sake of argument only, that there was such failure upon the part of the appellees, may be treated as waived by the appellants. Shaw v. Thompson Bros. Lbr. Co., 177 S. W. 574; Railway Co. v. Pennington, 106 S. W. 464; Railway Co. v. Tomlinson, 169 S. W. 217; Hill County Cotton Oil Co. v. Gathings, 173 S. W. 508.

It is earnestly urged by the appellants that in the handling of the $600 draft on the Derby Lumber Company of Monterey, Mexico, the First State Bank was acting as the agent of the appellees, and that the evidence shows that there was negligence in presenting the said draft for payment, and that on this account the money was lost and appellees deprived of a just credit on said note. Charles Bybee, one of the defendants in this cause, testified as follows:

“I live in Houston, Harris county, Tex. We, Bybee and Wood, executed the note and deed of trust sued upon in this case, and the same is correct, except the payment, which we claim we made as follows: We paid to the plaintiffs in this case $30.40, in script, which we had not been credited for when this suit was filed, and which was received by plaintiffs and collected as cash. Tes, sir; on the 5th day of May, 1913, before this suit was filed, we got notice from the Montgomery State Bank that they held the note sued on belonging to Austin & Riley, and demanded coUection and payment of the same. About this time we sent the Montgomery State Bank our check for $600, drawn on the Derby Lumber Company, of Monterey, Mexico. These people were lumber brokers, and we had considerable dealings with them in shipments of lumber, and they have always paid our checks or drafts, and we believed that the check was good when we sent it to the Montgomery State Bank to be credited on our note to be held by them. We heard nothing more from this check, and believed it was paid, and continued to ship lumber to these people for some time after that (the Derby Lumber Company) which we would not have done had we known this check was not paid or honored. We heard nothing from this check or its payment, nor from the Montgomery State Bank about it for quite a while, and finally I went to Montgomery the latter part of the following summer, I think it was in September, and called on Montgomery State Bank to know about the payment of this check, The cashier informed me that he did not know whether it had been paid or not, that he had no evidence of it, and that he would take it up at once with his Houston correspondent, and try to find out about it. I heard nothing further of the check or its payment, and believed it was paid, and never received this check back, or any notice of its nonpayment, and fully believed it was paid, and knew nothing to the contrary, and when this suit was filed I had discovered that they had not given us credit for this check for the first time. I believed then and now that this was a good and valid check, and would have been paid if the same had been promptly presented by the Montgomery State Bank, or its correspondent, for collection, and for the reason of that shipped the same people a lot of lumber after the giving of this check, and drew other checks and drafts on them, which were paid. We had a balance to our .credit with this Monterey firm, when we drew this check, sufficient to cover this amount so drawn, to wit, $600, and continued to ship other lumber to the same people afterwards, and drew other checks upon them, which were cashed.”

Plaintiffs, in rebuttal, introduced T. L. Wilcox, cashier of the First State Bank of Montgomery, aud he testified as follows:

“I am the cashier of the First State Bank of Montgomery, and held such position May 5, 1913, and prior thereto and since then. Some time before May 9, 1913, Austin & Riley, the plaintiffs in this suit, placed the Bybee and Wood note sued on here in our bank, and left same for collection, and we notified Bybee and Wood at Willis, Tex., that we held the note for collection. About May 5, 1913, we received a check from Bybee and Wood for $600, drawn on the Derby Lumber Company of Monterey, Mexico, which check when paid was to be credited on the Austin & Riley note now sued on. We forwarded this draft for collection to our correspondent in Houston, the South Texas National Bank, but we did not hear from the draft, and I think probably the latter part of the summer — I don’t recall just the date — Mr. Bybee, one of the defendants, came over to the bank, and asked me about this check. We told him that we were not advised upon its payment, and had no record of it; that we had been unable to hear from said draft on account of the war in Mexico, but would take it up with our correspondent in Houston and let him know. We did this, but failed to hear from this check for some time. We finally got the check back about March 14, 1914, marked unpaid, which draft we immediately mailed to the defendants, Bybee and Wood at Willis, Tex., where Mr. Bybee lived, and the letter was not returned to us, and we never received the draft back. There was some trouble in Mexico, war going on, and don’t know why we didn’t hear from this draft, unless it was on account of the war then going on in Mexico. Didn’t get any information, only what is stated above about it, but we did our best to do so, and collected the draft. The draft was never paid, and we did not credit the note with it. We accepted said draft to be credited on said note when paid, and not before. We did not credit said note with said draft because we never collected the draft.”

Upon this evidence the trial court found that the First State Bank of Montgomery was the agent of the appellants in its effort to collect the draft from the Derby Lumber Company, of Monterey, Mexico, and that the bank was not negligent in handling the draft, and in this there was no error. The appellees had nothing to do with this draft, and, in fact, so far as the record shows, never knew that this draft had been given to the bank, and was never advised by the bank, or any one else, that such a- draft had been given, and there is no evidence of any kind that if the appellees had any such knowledge, they accepted such draft as a payment on said note. In so far as disclosed by the record, the bank did not have any authority from the appellees to accept anything but actual money as payments on said note, nor any payment less than the entire amount due. The $600 draft was placed with the bank for collection with the understanding between the bank and appellants that the proceeds thereof, when collected, were to be held by the bank for the purpose of making a credit on said note. This was a transaction between the bank: and appellants, in which appellees were not a party, and concerning a matter outside of the scope of its agency with the appellees. We find no merit in any of the contentions of appellants under the fifth and sixth assignments of error, and they are therefore overruled.

The seventh assignment of error complains of the action of the court in admitting, over appellants’ objection, evidence of appellees that a state of war existed in Mexico at the time the draft above mentioned should have been collected, because appellees, in no part of their pleadings, set up any fact or allegation under which said proof could he properly admitted, since the appellees wholly failed to deny the allegations of appellants that the appellees were negligent in not forcing the collection of the $600 draft. Disposition of the fifth and sixth assignments of error disposes of this assignment, and it is therefore overruled.

In the ninth assignment of error, the appellants attack the trial court’s finding, in his findings of fact and conclusions of law, that the First State Bank of Montgomery was the agent of appellants. We have examined this question under the fifth and sixth assignments of error, and the conclusions on this subject are contrary to such contention, and this assignment is therefore overruled.

Judgment affirmed.
      <&=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gs»l?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    WORKMAN v. RAY.
    (No. 851.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.)
    1. TRIAL <@=3170— DIRECTED VERDICT.
    Where defendant introduced no evidence, and by admission in open court conceded plaintiff’s cause of action, it is proper for the court to direct a verdict for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 390-394; Dec. Dig. &wkey;170.]
    2. Evidence &wkey;>265 — Admissions—Effect.
    In trespass to try title brought by plaintiff, one of whose vendor’s lien notes had not been paid at maturity, defendant filed an answer, setting up transfer of the land to him and his assumption of payment of the notes; that he made arrangements to obtain a loan to pay off the notes; that plaintiff, objecting agreed to extend the time of payment of'the notes in consideration of the interest to further accrue thereon, granting defendant a reasonable time in which to sell the land; and that defendant agreed not to pay off and satisfy the notes, and on the date of maturity of the second of the notes to pay the interest due on all of them. The answer further averred payment of the interest on all when the second became due, and plaintiff’s breach of his agreement to give defendant a reasonable time to sell the land, and prayed a judgment for damages, or extending the time of payment of the second note. Held, that where defendant in open court admitted that plaintiff had a good cause of action as set forth in the petition, except in so far as it might be defeated by the facts of the answer constituting a good defense, the admission entitled plaintiff to a verdict, for not only did it admit plaintiff’s title and defendant’s default, but it was a repudiation of all averments of the answer contrary thereto.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. <@=>265.]
    3. Trespass <@=>16 — Actions—Defenses.
    As the answer, setting up plaintiff’s breach of the agreement to extend time for payment of vendor’s lien notes, did not offer to pay the notes, but merely sought enforcement of, or damages for breach of, the agreement, it presents no defense to a judgment in favor of plaintiff.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 20, 23; Dec. Dig. &wkey;>16.]
    4. Appeal and Ereoe <@=>750 — Review—Assignments op Error.
    In such case, assignments of error, complaining that the court erred in instructing the jury to render a verdict for plaintiff without submitting the issues under the pleadings, that the court erred in holding the statute of frauds applicable to the contract for an extension, and that the court erred in instructing the jury to find for plaintiff, and not submitting the question whether the contract was made, and in not permitting defendant to introduce evidence in support of it, are not sufficient to raise the question whether the court erred in refusing to submit to the jury the question of damages for breach of the alleged agreement to extend the time of payment of the notes.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ .3074-3083; Dec. Dig. &wkey;> 750.]
    5. Bills and Notes <&wkey;137 — Extension of Time — Agreements.
    An agreement to extend the time of payment of vendor’s lien notes in consideration of the debtor’s agreement to pay interest is not binding, where the debtor did not obligate himself to pay interest for any definite time and there was no agreement to extend the notes for any definite period.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 334r-337; Dec. Dig. <&wkey; 137.]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Action by J. W. Ray against C. A. Workman. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Bllerd & Kirk, of Plainview, for appellant. Mathes & Williams, of Plainview, for appel-lee.
   HUFF, C. J.

J. W. Ray brought suit in trespass to try title against C. A. Workman, to section 6, block 81, E. L. & R. R. Co., situated in Hale county. The appellant, Workman, pleaded not guilty, and, further, that J. W. Ray, on the-day of-, 19-, by deed, acknowledged April 12, 1912, conveyed the land in question to Gus Deering-field, in consideration, among other things, of seven promissory notes, due, respectively, on or before the 10th day of April, 1912, 1913, 1914, 1915, 1916, 1917, and 1918. The first six of these notes were for $1,024, and the seventh for $1,030, executed by the grantee to Ray, bearing 8 per cent, interest per an-num, and attorney’s fees. On the 21st day of February, 1912, Gus Deeringfield conveyed the land to Moreton for and in consideration, among other things, of the assumption of the payment of the notes; and on the 10th day of April, 1912, Moreton conveyed the land to appellant in consideration of $5,-000 and the assumption of the notes. It is further alleged that about the 10th day of January, 1913, appellant made arrangements to obtain a loan to pay off the unpaid notes; that he notified appellee of the arrangements, who objected and—

“entered into an agreement with defendant, whereby plaintiff was to extend the time of the payment of said notes for and in consideration of the interest to further accrue thereon, giving and granting to defendant a reasonable time in which to sell said land, and defendant agreeing not to pay off and satisfy the same and to pay on date of maturity of the second of said notes, the interest due on all of them.”

When the second note was due he paid the interest thereon and the interest due on the remaining five; that about the 1st of October, 1914, he agreed with Prank Smyer to sell the land, and Smyer was to convey 30 acres of land to him and to assume the payment of the notes; that the trade was to be consummated October 20, 1914; that the 30 acres was of the value of $4,000; that prior to the consummation of the trade ap-pellee filed this suit, and hut for which the trade would have been consummated; that from April 10, 1913, to November 1, 1914, was a reasonable time in which to sell the land under the contract. He also alleges-that appellee knew of the proposed trade, and filed the suit to prevent it being, made, as a result of which appellant was damaged $4,-000. He prayed for judgment in the sum of $4,000, or, in the alternative, judgment extending the time of payment of the second note to April 10,1915, and that the remainder of the notes be not declared due. The appel-lee filed a general exception to this answer, which does not appear to have been acted upon. The recital in the judgment entry is that appellant—

“in open court, before the trial commenced, admitted that the plaintiff [appellee] had a good cause of action as set forth in the petition, except in so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial, which admission was entered of record and the defendant given the right to open and conclude.”

The trial court instructed a verdict for ap-pellee upon this admission, and judgment was rendered for appellee, decreeing to him the land.

Appellant testified, as will hereinafter be set out, which testimony was stricken out by the trial court, and a bill of exception taken thereto. The appellee objected to the testimony on the ground that the contract of extension violated the statute of frauds. The trial court, in his explanation appended to the bill, states that when the objection was made he stated to counsel—

“that in view of their admission, the way I look at the case, in view of the decision of the Meade-Logan Case, presented by plaintiff, in 110 S. W. 189, that I would sustain the objection and instruct a verdict for plaintiff.”

There are three assignments of error urged in this court: (1) In instructing the jury to render a verdict for appellee without submitting the issues under the pleadings after the introduction of the evidence; (2) the court erred in holding the statute of frauds applicable to the contract, which does not show upon its face it was not to be performed in a year, and it was not alleged it was not to be performed in a year; (3) in instructing the jury to find for plaintiff, and In not submitting whether there was such a contract made and entered into, and in not permitting appellant to introduce any evidence in support of same.

There was no evidence introduced by the appellant. Hence under the admission of appellant the court could do nothing else than to instruct a verdict for appellee. The only assignment that could raise an issue as to excluding the testimony offered is the third, in which it is asserted the court would not permit any evidence in support of the alleged contract. There is no assignment that the court refused to hear evidence as to the breach of any contract. We think it exceedingly doubtful whether there is such an assignment, such as will permit us to consider any error the court may have committed in refusing to hear testimony upon the breach of the contract and consequent damages to appellant.

This being a suit in trespass to try title, the admission of appellant admitted all the necessary facts to establish title in the appellee. The answer of appellee shows that Ray was the vendor of the land, reserving in the notes and deed the vendor’s lien. The admission of appellant included the acknowledgment of the legal title in appellee; that is, that the contract of sale was executory, and that appellee had elected to rescind the same. It includes, further, the admission that the notes fell due, and that appellant defaulted in the payment, and that because of such default appellee had the right to rescind and recover the land. Now the answer seeks to show there was no such default because of an agreement to extend the time of payment for a reasonable time in order to permit appellant to effectuate a sale. This answer will contradict the admission that appellant had defaulted, and that appellee had the right to rescind. We believe the trial court correctly held appellant could not do this under his admission, for the reason the admission was the declaration that his answer in that particular was not true, and was an admission that he had defaulted, and that the time of payment had not been extended. Meade v. Logan, 110 S. W. 189.

The appellee also objected to the testimony offered to prove the agreement that the agreement testified to violated the statutes of fraud. We are inclined to believe the objection is well taken to the testimony. We, however, will not discuss this question, and only cite the cases relied on by appellant which sustain the proposition contended for by appellant. Thomas v. Hammond, 47 Tex. 42; Railway Co. v. Wood, 88 Tex. 191, 30 S. W. 859, 28 L. R. A. 526; Robb v. Railway Co., 82 Tex. 392, 18 S. W. 707; and several other authorities cited by appellant. However, we are inclined to believe this case upon the testimony objected to is distinguishable from the authorities cited.

We will not, however, base our affirmance of the case on this ground, but prefer to do so on the ground suggested by the trial court. We believe if the testimony had been admitted under the admission of appellant, appellee was entitled to the judgment for the land, and he would also have been entitled to such judgment under the answer of appellant, for the reason that he shows the notes were vendor’s lien notes and unpaid but he does not offer in his pleadings to pay them; but simply sues for damages on a breach of contract. His assignments do not, in our judgment, raise or present the question that the court was in error in refusing to try the case on his pleadings alleging breach of contract; but we believe they only support the proposition that the court erred in instructing a verdict for plaintiff for the land, and will not support the proposition that the court erred in refusing to submit to the jury the question of damages under an alleged breach of the contract. This allegation of appellant we think was a separate and distinct cause of action from a suit in trespass to try title, and if this separate cause should have been submitted, we believe an assignment should have been presented to this court involving the proposition. The testimony offered to prove the contract, and excluded, is not the agreement alleged. The evidence stricken out as to the agreement, as presented by the bill of exceptions, is that:

“Plaintiff [appellee] stated to Mm [appellant] that he [plaintiff] did not care to have the notes paid off, but wanted the interest to further accrue thereon; that plaintiff agreed to extend said notes a reasonable length of time, and would give defendant a reasonable length of time to sell the land in controversy if defendant would pay all interest up to and including April 10, 1913, and would have them paid off; that defendant paid said interest to April 13, 1913, and agreed not to have said notes paid off or taken up.”

From this statement it is hard to tell just what the agreement was. It is first stated that it was agreed to “extend the notes a reasonable length of time,” and to give a reasonable length of time to sell the land; that is, as we understand, in order that appellant might be able to pay the notes at extension. Then he states he “agreed to not have said notes paid off and taken up.” When were they not to be paid off and taken up? Was it April 10, 1913, they were not to be taken up, or at some future date? It is not stated or alleged when he paid the interest. If he paid it April 10, 1913, he only paid what was due. If the interest was to be paid at the expiration of a reasonable length of time, this was indefinite, and will not support the contract; and, further, an agreement must be mutual. Appellant, under the terms of this agreement, could pay the interest or notes at any time thereafter. If the extension had been for a definite time for the payment of the interest, it possibly would be valid. Webb v. Pahde, 43 S. W. 19. By this agreement, the creditor agreed to extend a reasonable time; the debtor does not agree that he will not pay until after that time, or, in case he does pay, he will pay the interest up to that time. Austin, etc., v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430. The appellant, by such an agreement, parted with no right or assumed no burden. Foster v. Ross, 33 Tex. Civ. App. 615, 77 S. W. 990. The payment of the interest was the amount due on the note is inferable from the testimony as well as from the answer. If it was due, the rights of the debtor thereto at that time cannot be denied. Krueger v. Klinger, 10 Tex. Civ. App. 576, 30 S. W. 1087. It will be noted this evidence does not establish the allegation:

“Defendant agreeing not to pay off and satisfy same and to pay on date of maturity of the second of said notes the interest on all of them.”

If the evidence had shown that appellant agreed to pay the interest on all of these notes at the maturity of the second note, it would have shown a valid contract, supported by a consideration. The agreement under the testimony does not bind appellant to pay interest for any definite time. Norris v. Graham, 42 S. W. 575; Barlow v. Frederick, 44 Tex. Civ. App. 321, 98 S. W. 455.

We believe the case should be affirmed.
      <£s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    McLEOD et al. v. McCALL et al.
    (No. 21.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 4, 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Appeal and Eeror &wkey;>548 — Pabol Testimony to Vary Written Instrument — Bill oe Exceptions — Failure to Include Fundamental Eeroe.
    Where no bill of exceptions appears in the record on appeal, reserving an exception to the exclusion of parol testimony introduced to establish certain uses and a parol trust under a trust deed which were asserted to have been in contemplation by the parties to the transaction, though not set out in the deed, the action of the court will be reviewed, as a question of fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey; 548.]
    2. Schools and School Distructs <&wkey;65 — Trust Deed — County Judge — Uses Peemis-sible — Unexpressed Uses — Acquiescence.
    Where land was deeded to a county judge and his successors in office to hold in trust “for a schoolhouse site for the use of the Bethel neighborhood,” to have and to hold “for the use of a public school and for said community forever,” and the land was held and conveyed by successors in the office of county judge, and the trust acquiesced in for 20 years, the only uses and trusts under which such judges could officially hold and convey the land being those provided for by Rev. St. 1879, arts. 3711, 3771, providing for the holding of land in trust for public school purposes by county judges and mayors of cities, and article 3777, providing for the sale of such land by such trustees for the purpose of purchasing school grounds or erecting buildings, the members of the community could not, in order to prevent such a sale by the trustee, assert a verbal trust, not expressed in the deed, that the county judge was to hold the property without power of sale for a number of community uses, not allowable under such sections of the statute.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. <&wkey;>65.]
    3. Schools and School Districts <&wkey;65— County Judges — Statutory School Trust —Powers oe Trustee.
    A county judge in. his official capacity cannot hold land in trust for any uses or purposes other than those set out in Rev. St. 1879, arts. 3711, 3771, providing for the holding of land by county judges and mayors of cities in trust for school purposes, and in article 3777 empowering such trustees to sell such lands for specified purposes.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. <&wkey;>65.]
    Error from District Court, Montgomery County; J. Dlewellyn, Judge.
    Action by William McLeod and others against S. A. McCall and others. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Nugent & Toler, of Conroe, for plaintiffs in error. A. L. Kayser, of Conroe, and R. A. Powell, of Montgomery, for defendants in error.
   BROOKE, J.

Plaintiffs in error brought suit in the district court of Montgomery county, Tex., in the form of trespass to try title against the defendants in error for 8.9 acres of land, and in their seventh amended original petition on which they went to trial, they allege, in substance, that the land in question was conveyed by J. L. Goodin to N. A. Cravens, county judge of Montgomery county, and his successors in office, on the -day of —--, 1892; that said conveyance did not set out all of the uses and purposes to which said land was to be put, and for which the same was conveyed, but that there was a verbal agreement between plaintiffs, who constituted the Bethel community, for whose benefit the deed was made, and said N. A. Cravens, county judge, at the time said deed was executed, that he, the said Cravens, county judge, was to hold said property in trust for plaintiffs, to be used by them for public and private purposes, as members of said Bethel neighborhood, and for religious worship, preaching, prayer meetings, public speakings, and discussions, Sunday schools, social clubs, lodges, political meetings, farmers’ alliance and farmers’ union, and all kindred public and private uses, and for the enjoyment of the plaintiffs, with the special and specific understanding and agreement before, at, and ever after the moment of said purchase that no right or power should ever vest in the said N. A. Cravens, county judge, as aforesaid, and in his successors in office in Montgomery county, to use or sell said property for .public school purposes, except at the will and pleasure and by the written consent of these plaintiffs, and with the express further understanding and agreement by and between all of said parties and with the said J. L. Goodin, and that in so far as said property may, at any time, be used by Montgomery county, or by any school community, or by any other person, or for public school purposes, such users would at all times be tenants at will of these plaintiffs, and that neither by operation of law or otherwise should such users of Montgomery county, Tex., or any other person, ever have any power to sell or in any manner alienate said land or the legal title thereto, all of which was then and there, it is alleged, agreed to by these plaintiffs', all of the defendants, by N. A. Cravens, county judge, as aforesaid, and by the said J. L. Goodin. A breach of the trust by Montgomery county is alleged by the sale of the land to one of the defendants, who is alleged to have purchased with notice of said oral trusts and uses, the cause proceeded to trial, and plaintiffs introduced the following deed and conveyance in evidence, and which is. here set out in full, since upon its construction rests the disposition of this case:

“The State of Texas, County of Montgomery.
“Know all men by these presents: That I, J. L. Goodin, of the county of Montgomery, and state of Texas, for and in consideration of the sum of sixteen dollars, to me cash in hand paid, the receipt of which is hereby acknowledged, and the further sum of sixteen dollars to be paid by W. H. Steed, John Martin and William McLeod, with thirty days from this date, for which the said W. H. Steed, John Martin and William McLeod, have made, executed and delivered to me their several joint and promissory notes, bearing even date herewith and payable as above stated, have this day granted, bargained, sold and released and conveyed, and do by these presents grant, bargain sell, release and convey unto, N. A. Cravens, county judge, in and for the county of Montgomery, in the state of Texas, and his successors in office for a schoolhouse cite for the use of Bethel neighborhood the following described tract or parcel of land, to wit. [Here follows description of land.] To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said N. A. Cravens county judge of said county, and his successors in office for the use of a public school and for said community forever. Witness my hand this 3d day of March, A. D. 1892.
“J. L. Goodin.
“Acknowledgment in due form.
“Filed for record March 5th, 1892, at 3 o’clock, p. m. Recorded March 10th, 1892, at 4 o’clock p. m. to which I certify.
“J. H. Davis, C. C. M. C.”

The plaintiffs in error then offered to es tablish by witnesses the uses and verbal trust, as alleged in their petition, and set out in the above statement, whereupon the defendants in error objected. The court sustained said objections, and the jury was peremptorily instructed to render a verdict for the defendants.

We are confronted at the outset with objection on the part of defendants in error to a consideration of the plaintiff’s assignments of error, based on the action of the lower court in excluding evidence of the parol trust agreements and uses sought to be proven on the trial, for the reason that no proper bill1 of exception was taken and preserved to the action of the court. A close inspection of the record bears out the contention of the defendants' in error, for no bill of exceptions appears in the record before us. The contention of defendants in error, therefore, seems to be well taken, but it is insisted, in an able and lengthy presentation of the subject, that the action of the court in excluding parol testimony as above set out was fundamental error, and therefore is entitled to be inquired into, without being presented by a bill of exceptions.

The deed in question is dated the 3d day of March, 1892, recorded on the 10th day of March, 1892, in the deed records of Montgomery county, Tex., and it is to be observed that the granting clause is as follows:

“Granted, bargained, sold, released and conveyed, and by those presents gTant, bargain, sell, release, and convey unto N. A. Ctavens, county judge in and for the county of Montgomery, and state of Texas, and his successors in office for a schoolhoiise cite for the use of Bethel ’Neighborhood. (Italics ours.)”

The habendum clause reads:

“To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto said N. A. Cravens, county judge of said county, and his successors, in office, for the use of a public school for said county forever.”

It is said, in an instrument similar1 to the present, in which the conveyance was made to a bishop of the Roman Catholic church for the benefit of the church, to his successors and assigns forever, that it vests a fee-simple title in such bishop in trust for the church, in the absence of any condition subsequent, either express or implied. Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985.

An eminent writer, in classifying trusts, uses the following language:

“Trusts, are divided, in reference to their ere-.ation, into express trusts, implied trusts, resulting trusts, and constructive trusts. Express trusts are also called direct trusts, and are generally created by instruments that point out directly and expressly the property, persons, and purposes of the trust. Hence they are called direct trusts in contradistinction to those trusts that are implied, presumed, or construed by law, to arise out of the transaction of the parties. Implied trusts are trusts that the courts imply from the words of the instrument, when no express trust is declared but such words are used that the court infers or implies that it was the purpose or intention of the parties to create a trust. Resulting trusts are trusts that the courts presume to arise out of the transaction of the parties, as if one man pays the purchase money for an estate and the deed is taken in the name of another, cotírts presume that a trust is intended for the person who pays the money. A constructive trust is one that arises when a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. 1 Perry on Trusts, 24 et seq.”

There is a direct trust declared in the deed. On the 3d day of March, 1892, N. A. Cravens was the county judge of Montgomery county, and as such it was lawful for him to enter into a contract for the uses and purposes such as are set out in the instrument before us. Article 3711, Revised Statutes 1879, reads:

“All conveyances, devises and bequests of property made by any one for the benefit of public * * * schools for any county, city or town, shall, when not otherwise directed by the grantor or devisor, vest said property in the county judge of the county or the mayor of said city or town, and * * * successors in office, as the trustee for those to be benefited thereby, and * * * same shall, when not otherwise directed, be administered by said judge or mayor, subject to the approval of the board of education.”

Article 3771, Revised Statutes 1879, reads:

“When a school community has no schoolhouse, the available public * * * school fund for any one year, to the credit of said community with the county treasurer, may be used for the purpose of erecting a house upon the following conditions, to wit: A suitable piece of land shall be donated as a site, and a deed therefor executed and delivered to the county judge conveying said land to the county judge, and his successors in office, in trust for public free school purposes, which deed must be recorded as other deeds.”

And article 3777, Revised Statutes 1879, reads:

“The trustees of any school community, upon * * * order of the county commissioners’ court approving the terms thereof, when deemed advisable, may make sale of any property belonging to said school community and apply the proceeds to the purchase of necessary grounds, or to * * * building or repairing of schoolhouses.” Belcher v. Mulhall & Scaling, 57 Tex. 20; Yarbrough v. Clarkson, 155 S. W. 955; Davis v. George, 104 Tex. 106, 134 S. W. 326; Milliken v. Co. of Callahan, 69 Tex. 205, 6 S. W. 684; Lynch v. Ortlieb, 70 Tex. 727, 8 S. W. 515; Janes v. Ferd Heim Brewing Co., 44 S. W. 898.

This law was in force at the time of the execution of the instrument. The trust is plain, was lawful, and has been acquiesced in by all parties for about 20 years. The county judge could not, in his official capacity, execute a trust and hold property for persons, to be used by them for public and private purposes, as members of a neighborhood, and for religious worship, preaching, prayer meetings, Sunday school, social clubs, lodges, and for political meetings, public speaking and discussion, farmers’ alliance and farmers’ union, and such and similar purposes. Plaintiffs in error now seek, at this late day, and after the land has been used for all this time under the instrument, and has been lawfully conveyed by said trustee or his sue-cessor for purposes legally authorized, to in-graft upon said instrument terms which, would destroy, contradict, and change the terms primarily set out therein, and for this purpose they offer to introduce parol testimony to the effect that it was agreed that these other and various and contradictory uses and trusts should he ingrafted upon said instrument. This cannot be done. During nearly 20 years there was nothing wrong found in the contract. It is unambiguous, and^ in all that time nothing developed to show that it did not reflect the real agreement of the parties. The parties were charged with a knowledge of the law in force at the time the contract was made, and we think should be held to have intended to make a lawful contract, which the writing expresses. Therefore we are of the opinion that the trial court did not err in holding that parol testimony was not admissible in this case. So believing, the action of the trial court, is, in all things, affirmed.
      (g^uFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUFF, C. J.

text:
    MOON v. SHERWOOD.
    (No. 840.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1915.)
    1. Vendor and Purchaser <&wkey;288 — Foreclosure of Lien — Sale—Title Acquired.
    Where a judgment of foreclosure under a vendor’s lien note is void for want of service on defendant as required by law, a sale under an order of sale issued thereon passes no title to the purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 815-819; Dec. Dig. <@=»288.]
    2. Vendor and Purchaser <&wkey;89, 275 — Vendors’ Liens — Assignment.
    A vendor of land holds the legal title in trust for the assignee of the vendor’s lien note and the vendee of the land, and even though he has transferred the notes to a third party without at the same time transferring the title, he may thereafter convey title to the holder of the note who then becomes invested with all the rights of the original vendor, and may elect to rescind the sale and recover the land or to foreclose.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 148, 149, 151, 156, 772; Dee. Dig. &wkey;89, 275.]
    3. Vendor and Purchaser <&wkey;280 — Foreclosure of Vendors’ Liens — Pleading—Alternative Relief.
    The holder of a vendor’s lien note who obtains also the legal title may after instituting foreclosure amend his pleadings and sue for rescission or he may ask for rescission or foreclosure in the alternative.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784-789, 791; Dec. Dig. <©¿3280.]
    Error from District Court, Collingsworth County; J. A. Nabors, Judge.
    Action by C. F. Berry against M. L.'Lang-ford and others on a vendor’s lien note, wherein R. R. Sherwood intervened, and which suit was consolidated with an action by R. R. Sherwood against James A. Moon and others. From the judgment rendered, James A. Moon brings error.
    Affirmed in part and reversed and remanded in part.
    R. H. Templeton, of Wellington, and H. E. Hoover, of Canadian, for plaintiff in error. R. H. Cocke, Jr., of Wellington, for defendant in error.
   BUFF, C. J.

On the district court docket of Collingsworth county, in cause No. 296, a suit was instituted by one C. F. Berry against M. L. Langford, W. H. Painton, James A. Moon, and C. M. Lane, on a vendor’s lien note for the sum of $400, executed by Langford to C. M. Lane, dated December 5, 1910, as part of the purchase money for the N. W. % of section 28, block 15, H. & G. N. Ry. Co. survey.

The petition alleged that Moon and Pain-ton claimed or asserted some interest in the land. This suit was filed October 26, 1912. Judgment was taken in this suit for the debt against Langford and Lane on the 15th day of April, 1913, foreclosing the vendor’s lien on the land as to said parties, and also aa to the interest of Moon and Painton it directed the issuance of an order of sale. On August 4, 1913, an order of sale was issued on the above judgment which was executed September 3, 1913, by selling the land at public sale, as under execution, at which time R. R. Sherwood became the purchaser, to whom the deed was made by the sheriff executing the order of sale. The amount bid and paid by Sherwood was $25.

On the 2d day of March, 1914, R. R. Sherwood instituted suit against James A. Moon and A. G. Burke, a tenant of Moon on the land, for the land, in the form of trespass to try title, and sued out therein a writ of sequestration, the number of this suit on the docket being 349. After the institution of this suit James A. Moon, on April 10, 1914, filed a petition or motion in cause No. 296 to set aside the judgment obtained therein, on the ground that it was rendered without proper service on the parties, and set out specifically that he was a nonresident of the state, not having been served with notice, as required by the statute for nonresidents, but that service was attempted on him by publication, but that it was not had for the time and in the manner required by the law, and not for four full weeks, and that the cause was not passed over for the first term after such publication. By permission of the court Sherwood intervened in that case, setting up therein that he was a purchaser of the land at the foreclosure sale, and that he had a deed from W. H. Painton and O. M. Lane, and also had purchased and paid for or had transferred to him the $400 note, of which he was the legal holder and owner.

On the 14th day of April, 1914, the issue as to the validity of that judgment was tried before the court, who finds as follows:

“It appearing to the court that the judgment of this court heretofore rendered in this cause, as recorded in volume 1, p. 90, District Oourt Minutes, Collingsworth county, Tex., was rendered without proper service upon the parties defendants, and that said judgment disposed of their interest in and to the N. W. % of section No. '28, in block.No. 15, H. & G. N. Ry. Co. survey, in Collingsworth county, Tex., and that the interest of James A. Moon in and to said land was disposed of without service on him, it is therefore considered, adjudged, and decreed by the court that the judgment of this court heretofore rendered in this cause, as recorded in the District Court Minutes, in volume 1, p. No. 90, Collingsworth county, Tex., be and the same is hereby set aside and without further force and effect as to disposing of the interest of James A. Moon in and to the N. W. % of section No. 28, block No. 15, H. & G. N. Ry. Co. survey, in Col-lingsworth county, Tex.,” etc..

There appears to be no objection by either party to this appeal to the judgment so entered.

On the 18th day of April, 1914, Sherwood made a motion to consolidate the two causes, Nos. 296 and 349. We find no order of the trial court consolidating the two causes, but both parties appear to treat the ease as consolidated, and the pleadings were amended, in which the style of both cases, together with the two numbers, was indorsed thereon, and the final judgment treats the cases as having been tried under consolidation.

On the 20th day of April, 1914, R. R. Sherwood amended his petition as against James A. Moon and A. G. Burke. He first apparently seeks a recovery of the land as the owner thereof in an action which is substantially that of trespass to try title, and in the fourth paragraph of this amendment he sets out the fact that he is the legal holder of the note and the value thereof mentioned in the petition of James A. Moon set forth and described in the judgment therein mentioned and set forth, and that he purchased the land in said petition described, that after the purchase at sheriff’s sale, for a valuable consideration in due course of trade, he bought all interest in and to said suit, and in and to said notes therein described and mentioned, and also bought for value the right, title, and superior lien which said note evidenced from C. M. Lane and from C. F. Berry, and that plaintiff is now the legal owner and holder of said note, lien, and superior title, and that he holds the deed of the sheriff of Collingsworth county to said land under and by virtue of the foreclosure. He alleges that the note for $400 principal was destroyed by fire, and that it bore date December 7, 1910, with interest from date at the rate of 10 per cent, per annum, and provides for 10 per cent, attorney’s fees, etc.; and he further alleged that he was the legal owner and holder of vendor’s lien note for the sum of $250, dated December 12, 1908, with the lien and the superior title which said note carries with it, and said note bears interest at the rate of 10 per cent, from date and provides for 10 per cent, attorney’s fees. He alleges also that he paid $4.68 interest to the state due on the public school land, and also $21.50 taxes. His prayer is that he have judgment for the title and possession of the above-described land and premises and writ of possession therefor; that he have judgment against James A. Moon and A. G. Burke foreclosing their interest in the land heretofore described; that he have an order of sale foreclosing the lien on said land.

Moon and Burke answered this petition at some length, which will be unnecessary to set out. Moon especially answered that, if the court shall find Sherwood can sue for the land, and at the same time seek a foreclosure, then( he tenders into court the amount due on said note, “and asks that the title be adjudged in him, subject to the in-cumbrances shown by said notes, and that he be given 60 days in which to pay off and settle said notes and save his land, and that the title be adjudged into him with the privilege of paying off said notes and incum-brances, if any, that may be adjudged against the land in controversy.”

The facts regarded as material are that it was agreed by the parties that O. M. Lane is th,e common source of title.

On the 12th day of December, 1908, O. M. Lane conveyed the land in question to J. H. Shields for a recited consideration of $800 in cash and three vendor’s lien notes for the sum of $250 each, due respectively December 12, 1909, 1910, and 1911. On the 16th day of December, 1908, O. M. Lane transferred to O. P. Jones, by a written transfer duly acknowledged and recorded, the three vendor’s lien notes mentioned in his deed to Shields.

On the 7th day of June, 1909, J. H. Shields and wife conveyed the land to A. G. Lane for a recited consideration of $1,050 cash, and the balance, $750, assumed ' by A. G. Lane, being the three vendor’s lien notes referred to in the deed of O. M. Lane to Shields. This deed was duly filed for record on the 19th day of June, 1909, in the proper office. On the 20th day of September, 1909, A. G. Lane and wife reconveyed the land to O. M. Lane for a recited consideration of $1,800 in hand paid. It is further recited that of the $1,800 $1,050 is in cash, and the other is evidenced by three certain vendor’s lien notes for $250 each, dated December 12, 1908, etc., being the notes above mentioned. This deed was filed for record November 15, 1910.

A deed from C. M. Lane to W. L. Langford, dated December 5, 1910, being the land, for a recited consideration of $700 cash, $400 note due 12 months after date, drawing interest at 10 per cent., and the assumption of two notes for the sum of $250 each, due December 12, 1910 and 1911, executed by Shields and payable to O. M. Lane. A vendor’s lien was retained in the deed to secure the payment of the above notes. This deed was filed for record December 10, 1910.

A quitclaim deed from W. L. Langford and wife, conveying the land for a recited consideration of $3,000 to W. H. Painton. Of the consideration $171.65 is recited as cash in hand paid, and $2,828.35 is embraced in the vendor’s lien note dated July 3, 1911, with interest at 8 per cent, per annum, due July 3, 1912, with 10 per cent, attorney’s fees. A vendor’s lien was retained to secure the payment of this note. This deed was filed for record the 28th day of July, 1911. Sherwood also offered in evidence a portion of the deed from W. H. Painton and wife to J. A. Moon, dated the 28th day of November, 1911.

On November 28, 1911, Painton and wife conveyed to James A. Moon the land by deed for a recited consideration of $1.00 and other valuable considerations, paid by James A. Moon, with the recital: “This deed is made subject to an incumbrance of $650.00, due December, 1911.” This deed was recorded June 15, 1912.

Sherwood also offered in evidence the judgment in cause No. 296, C. E. Berry against Langford and others, dated the 15th day of April, 1913, foreclosing the vendor’s lien note for $400 and the order of' sale thereon, dated the 4th day of August, together with the return thereon showing the sale of the land at public sale and as having been bid in by R. R. Sherwood, and also the deed from the sheriff, dated the 2d day of September, 1913, to Sherwood.

Sherwood also introduced in evidence a deed dated the 22d day of December, 1913, from O. M. Lane to himself, for the land in question, for a recited consideration of $1,-000, $750 cash, and the assumption of one promissory note dated December 12, 1908, executed by J. H. Shields, payable to O. M. Lane. . This deed was recorded the 22d day of December, 1913.

He also offered in evidence a deed from W. H. Painton and wife to Sherwood, dated January 8, 1914, which was a quitclaim deed. This deed was filed for record the 22d day of January, 1914.

Plaintiff in error also introduced a deed from Sherwood and wife to O. M. Lane to the land, dated September 6, 1913, and filed for record September 15, 1913.

The plaintiff in error also introduced in evidence the order of the court entered on the 14th day of April, 1914, in cause No. 296, set out heretofore by us in our findings.

The evidence is sufficient to show that Sherwood, the defendant in error, purchased the $400 note made by Langford to C. M. Lane, and also one of the notes for $250 made by Shields to C. M. Lane, and which had been transferred by Lane to Jones; that he paid full value for these notes; that he made these purchases after he purchased the land at sheriff’s sale under the order of sale. Neither of these notes was offered or introduced in evidence, but without any objection, so far as this record shows, oral testimony was received as to the amount of the notes and the interest due on them.

C. M. Lane appears to have been an unmarried man, and at the time of the institution of the suit by Berry against Langford he was living in 'New Mexico, and he testifies, without contradiction, that he sent the note to O. E. Berry, instructing him to have suit brought on the $400 note, and that Berry, in complying with that, brought the suit in his own name, instead of that of C. M. Lane; but, as a matter of fact, C. M. Lane was the beneficiary in that suit. There is no testimony to contradict it, further than the recitals in the judgment foreclosing the lien and the petition therein, showing that ■Lane had indorsed the note and he was sued as an indorser, and judgment obtained against him as such.

Eor some reason not fully explained in this record, after Sherwood purchased the property at sheriff’s sale, he deeded the land back to C. M. Lane, and he and Lane swear that Lane paid him $125, and thereafter Lane reconveyed the land to Sherwood, by quitclaim deed, in which Sherwood assumed the payment of a $259 note, stating the date of the note, but does not give the due date. It is explained by these two witnesses that a part of the $750 cash consideration mentioned in the deed was the principal and interest on the $400 note and on the $250 note. The balance of the $750 is not very clear just how it was paid or in what manner.

The plaintiff in error Burke’s appeal (not for publication) will not be considered in this case, .for the reason that it is shown that the damages that he claimed by virtue of the writ of sequestration having been sued out have been made to appear in.this court as having been settled, paid off, and discharged by Sherwood, as will appear from the opinion of this court upon the motion, heretofore disposed of.

At the end of the testimony the court instructed a verdict for Sherwood for the land, and for the plaintiff in error as to Sherwood’s prayer for a foreclosure of the liens. We should state in this connection that there is no evidence or anything to show in the record that Moon made any tender of the principal and interest due upon the two vendor’s lien notes above set out, and the only tender was that made in his pleadings, heretofore set out.

The order of the court on Moon’s motion to set aside the judgment in cause 296 vacated that judgment. Sherwood was a party thereto by intervention, and is bound by such order, of which he does not here complain. If the judgment foreclosing the lien was void because no service was had on the parties, then there was no judgment supporting the order of sale and the sheriff’s sale and deed thereunder to Sherwood. The judgment being void for want of jurisdiction over the defendants therein, obtained by service, as required by law, the sale under the order of sale issued thereon passed no title to Sherwood. Horst v. Lightfoot, 103 Tex. 643, 132 S. W. 761; Carpenter v. Anderson, 33 Tex. Civ. App. 484, 77 S. W. 291. Without a judgment to support the order of sale it is absolutely null and void, and could confer no authority upon the officer to make the sale, and hence no title .passed by his deed. Criswell v. Ragsdale, 18 Tex. 443; Ayers v. Dupre, 27 Tex. 601, 602, 86 Am. Dec. 657; Perdew v. Davis, 31 Tex. 488. The defendant in error therefore had no title to the land sued for by virtue of the sheriffs deed, and the trial court should not have instructed a verdict for him on that claim of title, for he had none by virtue thereof.

The question remains whether obtaining possession of the vendor’s lien notes, one for $400, made by Langford to C. M. Lane, and one for $250, made by Shields to C. M. Lane, and by Lane transferred to Jones, and by Jones to Sherwood, and the conveyance of the legal title to the land by C. M. Lane to Sherwood, under the facts and pleadings, were sufficient to authorize a recovery of the land from Moon and his tenant, Burke, to whom the title had been conveyed by a regular chain of transfers from C. M. Lane and duly recorded prior to his deed to Sherwood. That the vendor, without any beneficial interest in the land, holds the title in trust for the assignee of the note and the vendee of the land, is the settled rule in this state. Ross v. Bailey, 143 S. W. 961, and authorities cited. Even though the vendor has transferred the notes to a third party without at the same time transferring the legal title to the land retained in him, he may thereafter convey the title to the holder of the note, who would then be invested with all the rights of the original vendor, and'may elect to rescind the sale and recover the land or to foreclose, as he shall determine. White v. Cole, 87 Tex. 500, 29 S. W. 759; Thompson v. Robertson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027. If, however, the vendor or his assignee has elected to sue to establish his lien, and has reduced the same to judgment, he cannot thereafter rescind. Wiseman v. Cottingham, 141 S. W. 817; Dillingham v. Kerr, 139 S. W. 911.

If the party entitled to rescind institutes foreclosure proceedings, we understand he may amend his pleadings and sue for the land or for rescission, and in such case he will not be held to have elected to specifically perform the contract. Stone Cattle Co. & Pasture Co. v. Boon, 73 Tex. 577, 11 S. W. 544. It appears also to be the rule that the plea may be in the alternatice. Von Boeder v. Robinson, 20 Tex. 754. If the defendant in error chose to disaffirm the contract of sale, it should appear that he distinctly did so. We do not think he should leave his pleadings in such condition that the court must make the election for him. In this case C. P. Berry instituted a suit to foreclose the vendor’s lien on the note for $400. This suit was prosecuted to judgment, but afterwards the judgment was set aside. Before the judgment was set aside defendant in error intervened, setting up that he owned the note by purchase from Lane and Berry. He then asked that this suit, 296, be consolidated with 349. The judgment of the court in this case shows that it was so consolidated. The amended petition of defendant in error does not purport to be a repleader as required by statute after consolidation, but simply "refers to plaintiff in error’s motion, etc. If the case was consolidated, the original petition in cause No. 296 was one purely for a foreclosure. This was an af-firmance of the contract. This being so, we believe that defendant in error could not affirm the contract as to the $400 note and dis-affirm as to the $250 note. While these two notes originated in separate contracts, the title was reinvested in the original vendor before the execution of the last note. He therefore held the legal title in trust for the assignees of both notes. The $250 note was perhaps entitled to priority in payment. If the vendor’s lien, after the land was reconveyed to him, and after he sold to Langford, had dis-affirmed the sale to Shields, he would still have held the same title in trust for the assignee of the. $400 note. We therefore believe he must, in order to defeat the vendee, have disaffirmed both contracts. We think in this case he must have rescinded in whole. Gardner v. Griffith, 93 Tex. 355, 55 S. W. 314; Nass v. Chadwick, 70 Tex. 157, 7 S. W. 828. It will be inequitable, it occurs to us, to permit Sherwood to recover the debt from Lang-ford, -and then recover the land for $250; at least the pleading should be clear as to which contract should be rescinded, if only one, or, if both, the allegation should be definite. While it appears the two causes were consolidated, yet the amended petition seeks to recover the land from Moon and Burke alone. Langford, Lane, and Painton are not mentioned in this pleading. If it was only intended to prosecute the suit against Moon and his tenant, then cause No. 296 stood on the docket undisposed of as a suit for foreclosure. If it was intended to plead in the alternative for the land or for the foreclosure by the amended petition, there could be no foreclosure, for the reason that the payors of the note were not made parties; hence no judgment establishing the debt could be rendered. We therefore believe the court erred in overruling plaintiff in error’s special exception set out in assignment No. 3. If the cases are consolidated, the court should require a repleader, which should include all matters. If the eases are not consolidated, then 296 should be abandoned; for we cannot see how defendant in error should have one suit ior foreclosure on the note and at the same time have a suit for the land based on the same contract. We believe also, under the pleadings and the record in this case, that plaintiff in error was entitled to have the vendor’s lien notes tendered into court for cancellation, if they could be found, before he can be required to pay money into court thereon. Milligan v. Ewing, 64 Tex. 260. If this was a straight action to recover the land, there is no doubt that plaintiff would be required by his answer to offer to pay the note, and also tender the same into court. Rutherford v. Mothershed, 42 Tex. Civ. App. 360, 92 S. W. 1021; Pierce v. Moreman, 84 Tex. 696, 20 S. W. 821; Crain v. National Life Ins. Co., 66 Tex. Civ. App. 406, 120 S. W. 1098. We believe, under the facts of this case, and the pleadings, the court was in error in instructing a verdict for defendant in error as to the title of the land. Burke’s assignment will be overruled for the reason that his appeal was dismissed at a former day of this court, upon motion; it having been shown that he accepted in full satisfaction of the damages awarded him on account of the sequestration proceedings, and that he marked the judgment obtained in his favor against Sherwood “satisfied.” Harper v. Foster, 40 S. W. 40.

The judgment as to Burke will be affirmed, but as to Moon the cause will be reversed. Affirmed in part and reversed and remanded in part.
      <g=sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. EWING.
    (No. 7389.)

    (Court of Civil Appeals of Texas. Dallas.
    Oct. 9, 1915.
    Rehearing Denied Dec. 4, 1915.)
    1. Master and Servant <&wkey;286 — Injuries to Ejiployé — Defective Hand Car — Evidence —Sufficiency.
    In an action by a section foreman against a railroad company for injuries received by being thrown from a defective hand car, evidence held sufficient to take the question of the company’s negligence in furnishing a defective car to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dee. Dig. &wkey;286.]
    2. Master and Servant &wkey;>124 — Safe Appliances — Hand Car — Duty to Inspect.
    Under its duty of furnishing safe appliances, a railroad company, before turning over to its employé for use a new hand car, bought from a reputable manufacturer, was bound to inspect the car to ascertain its condition, and could not rely on the supposition that the manufacturer had made such inspection.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. &wkey;124.]
    3. Master and Servant <&wkey;291 — Safe Appliances — Violation of Duty — Instruction — I-Iand Car — Duty of Inspection.
    Where under the evidence it appeared that defendant railroad company had violated its plain duty to inspect a new hand car, bought from a reputable manufacturer, so as to ascertain its condition before handing it over to plaintiff, its section foreman, for use, and no legal excuse is shown for the failure to so inspect, it was not error to charge that the company owed such duty, instead of leaving the question of inspection to the jury, to be determined under the general issue of negligence in providing a safe appliance.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. &wkey;>291.]
    On Motion for Rehearing.
    4. Master and Servant <&wkey;124 — Appliances Furnished to Servant — Duty to Inspect.
    The duty of the master to inspect appliances furnished to the servant, other than simple tools, is to make some test which would satisfy a prudent person that the machine is safe for use.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig'. <®u»124.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by J. B. Ewing against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant. R. M. Vaughan, of Hillsboro, B. Q. Evans, of Greenville, and H. C. Bishop, of Hubbard, for appellee.

      Applieation for writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellee instituted this suit against the appellant to recover damages for personal injuries sustained by him while in the employ of appellant as section foreman, the allegation being that while the section hands were operating a hand car on defendant’s track, the cogs of the car became locked from being geared too tight or too deep, throwing the car from the track, and resulting in injuries to him; that said car was defective for use, and the company was. negligent in furnishing it for use in performing his duties. Appellant answered, in effect, that said car was new, and had been received with others from a reputable factory, which car was reasonably safe, and that it had used due care in the premises; that said hand car had been placed in the hands of appelle'e, who had used it for about 30 days and had never reported any defect to the appellant, and if he was hurt, it was due to his own fault; that if there was any defect in said hand car, it was a latent defect, unknown to appellant or appellee, and said condition arose out of and constituted one of the ordinary risks Incident to the employment which was assumed by appellee; that the same was an accident, and could not have been foreseen, and for which no one is responsible. Appellee recovered a judgment for $4,000, from which this appeal is taken.

The first assignment of error complains of the refusal of the court to give a charge, in effect, that there is no evidence showing appellant guilty of negligence, and to return a verdict for defendant. Tire evidence shows that appellee was in the employ of appellant as section foreman; that appellant furnished appellee a new hand car for use on this section, which car had been just received from the factory, stamped “Sheffield.” What factory made it, where situated, or its reputation, other than the name on the car, is not shown. The only testimony in regard thereto is that of ap-pellee, who stated in effect, that he had known the Sheffield car about 20-odd years, and considered it a standard make, but could not tell where the factory was located. Ap-pellee had been working for appellant for about 6 years, .but had worked only one new car prior to this one and had had no trouble with it. He had worked with hand cars about 26 years, and up to this time never had such an experience with a ear. He had used this car several days before the accident. He did not know what the trouble was, but it was shown to be too tightly geared, and he thought it worked that way because it was new. On the occasion of the accident he was on the car traveling down grade when, without warning, it suddenly stopped and jumped the track, throwing him off and injuring him. The car had, previous to this, on three or four occasions, in running made a grinding noise, which he attributed to its newness, and it never occurred to him that there was anything wrong with the machinery, but thought it was caused by the way it was handled by the men. “The first intimation I had that anything was wrong with the car was the sudden stop, and I went over.” The car being geared too tight caused the cogwheels to. sink too deep in the grooves, and caused them to bind when running, and liable to produce a lock and cause a wreck. Appellant furnished the car to appellee as it came from the factory, without having it inspected. Appel-lee was not a machinist, and supposed the car was all right. The testimony shown in the record is sufficient to raise the issue of negligence on the part of the appellant in furnishing a defective car for appellee’s use, and it was proper for such issue to be submitted to the jury for their determination.

The second assignment of error complains of the giving of paragraph 4 of the main charge of the court, which is:

“You are instructed that it was the duty of the defendant to have exercised ordinary care to furnish to the plaintiff a reasonably safe and suitable car to be used by him in the performance of his duty, and that it was the duty of said defendant, before said car was delivered to the plaintiff, to have caused the same to be examined to ascertain its condition, and that the plaintiff had a right to assume that the defendant had performed its- duty in these respects, and was under no obligation to inspect the car for the purposes of ascertaining whether or not the defendant had performed its duty in these respects.”

The criticism of this charge is, in effect, that the court erred in telling the jury in this case that it was the duty of defendant to inspect the hand car before delivering it to appellee for use; that under the evidence it was a question for the jury whether or not the defendant had used ordinary care in providing a suitable car. The evidence shows that the car was ordered by the defendant from a manufactory, which was a reputable concern, engaged in making hand cars of a standard make, such cars as were in use by railroads throughout the country. The car was shipped to the railroad by the manufáetory and delivered by the railroad to appellee, the railroad never having made an inspection as to its suitableness for the purposes for which it was to be used. While the appellee had been operating hand cars for about 26 years, he had never operated but one new car prior to this one, and was ignorant at the time of the defect in this one which caused it to be derailed and to injure him. The charge, we think, stated the law correctly, but the appellant requested a charge which was refused by the court, which, in effect, told the jury that if the railroad had ordered the car from a manufactory of good repute, and one engaged in making hand cars for railway companies, and that they were recognized as standard cars, and that it was furnished for such use, and that it was delivered by the railroad to appellee for use in the condition as furnished by the manufacturer, then the railroad had used due care and to find for the appellant.

Admitting that the evidence shows that the railroad used the care as stated in the special charge, was it sufficient to relieve it of the duty of inspection? We think not. The law imposes upon the master the duty of inspecting tools and appliances furnished to servants for use other than what are known as common or simple tools when defects are patent and obvious, and can be observed by the servant as well as by the master. This car was not shown to be a common or simple tool, and where the master has failed to inspect, as in this case, we take it that it will not” be exonerated by relying on the supposition that the manufacturer did its duty, as there is no evidence that the car was inspected by the manufacturer.

In Railway Co. v. Blackman, 32 Tex. Civ. App. 200, 74 S. W. 74, where the injury was caused by a defective hand car, it is said:

“Ordinarily, the duty of inspection is one personal to the master, and he cannot, even by contract, shift the burden from himself upon the shoulders of his servant.”

In discussing the duty of inspection by the master, Mr. Labatt, in vol. 3, page 2786, of his work on Master and Servant (2d Ed.) says:

“There are at least two very weighty reasons why the theory that a master is entitled, as a matter of law, to rely on the quality of appliances obtained from a reputable manufacturer should be rejected. One of these is that such a theory is essentially inconsistent with the doctrine of nondelegable .duties. As between master and servant, this doctrine should, it is submitted, always be regarded as controlling whenever it comes into conflict with that which declares that the employés of an independent contractor are not liable for his negligence. • * * The other reason is that, according to the rule adopted by most of the authorities, the servant has ordinarily no right of action against the manufacturer, and, if he cannot recover from his master, he cannot recover at all. Assuming the defect which caused the injury to have been discoverable by the exercise of proper care, some one ought, in fairnesSj to be held responsible for its ..existence, and it is a mere mockery of justice to absolve the master simply on the ground that he was justified in trusting to the skill and diligence of a person who, if that skill and diligence were, as a matter of fact, not exercised, is not liable to the servant because there is no privity of contract between them.”

We think the principle here announced is sound, and that the charge of the court is applicable to the facts as adduced by the evidence. As a rule it is a question for the jury to say whether or not negligence has been committed, but when, as in this case, the master has ignored a plain duty, and there is no legal excuse shown for so doing, we think it is not error for the court to so state to the jury. The appellee had the right to assume that the railroad had done its duty, and the question of assumed risk does not apply.

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

On Motion for Rehearing.

Appellant, in its motion for rehearing, objects to our finding of fact wherein we stated that the car in question had been “just received from the factory,” when it had been in use by appellee for at least 17 days, and also that we wei’e in error in stating:

“What factory made it, where situated, or its reputation, other than the name of the car, is not shown.”

Appellee was the only witness who testified on that point, and he stated in part as follows:

“I have managed and operated hand cars for 27 years. X could not tell where the factory is located where this ea^ came from, but I think it is in Missouri. I understand that this car, together with a number of others, was ordered by the company from that factory, and the factory had shipped them to the company. The hand car was a Sheffield make. I suppose it was put up by the Sheffield Company. The name of the car was the Sheffield car. I have known the Sheffield car about some 20 years, and state as a railroad man that the Sheffield car is recognized as a standard car. I mean by this that a Sheffield car was always considered as a good car, well put together and well manufactured. It was considered a reasonably safe car for the purposes for which it was intended to be used.”

There is no testimony other than this as to the make, the factory which made the car, or that the railway company had made any inspection of it, or that before it was turned out by the factory it had made an inspection or test of the car. Appellee states:

“I understand that this car, together with a number of others, was ordered by the company from that factory, and the factory had shipped them to the company.”

Conceding that the understanding of the appellee is sufficient to show the facts stated by him are correct, was the appellant authorized to rely solely upon the reputation of the factory, about which there is no testimony, other than the mere facts of being ordered and furnished, sufficient to show ordinary care on the part of appellant in furnishing the car to its servant?

It is urged by appellant that the quotation in our opinion from Labatt’s work on Master and Servant is but his individual opinion, while in the same connection he announces the weight of authority is that buying a new machine from a reputable manufacturer is conclusive proof of the use of due care on the part of the master. While the excerpt quoted is the individual views of Mr. Uabatt, who is a law-writer of reputation, we think they are sound in principle, and in the absence of a holding from our Supreme Court on the question, we adopt them in preference to the holding in some other jurisdictions, which hold that the master has done his duty when the appliance has been purchased from a reputable manufacturer. We prefer the rule in other jurisdictions when it is held that the master is not absolved from all duty of inspection, but holds him to only reasonable and practicable inspection. He is not required to tear appliances or machinery to pieces, but should make some test which would satisfy a prudent person that the machinery was safe for use. Sharpley v. Wright, 205 Pa. 253, 54 Atl. 896. Here the appellant made no kind of test. There was no care shown to ascertain that the manufacturer had tested the machine as to being properly put together for use. The machine was too tightly geared, which might have been discovered by an ordinary inspection, but this appellant did not make.

The motion for rehearing is overruled.
      <§u^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GESTEAN et al. v. BISHOP et al.

    (No. 498.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 18, 1915.
    Rehearing Denied Dec. 9, 1915.)
    Appeal and Ebror <&wkey;215 — Presentation op Grounds of Review in Court Below— Objections to Instbuctions — Necessity.
    In trespass to try title, where the only issue was that of limitations, error in a charge on that issue cannot be considered, where there was no objection below and exception taken, as required by Acts 33d Leg. c. 59; there being nothing in the statute to indicate an intention to except from its provisions fundamental errors.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <&wkey;> 215.]
    Error from District Court, El Paso County; M. Nagle, Judge.

      Action by Clark Bishop and others against Anna Gestean and husband. There was a judgment for plaintiffs, and defendants bring error.
    Affirmed.
    Coldwell & Sweeney, of El Paso, for plaintiffs in error. F. G. Morris and M. W. Stanton, both of El Paso, for defendants in error.

      Writ of error pending in Supreme Court.

   HIGGINS, J.

Defendants in error sued Daniel Gestean and Wife, Anna Gestean, in trespass to try title, and recovered. Gestean and wife prosecute this writ of error.

Anna Gestean claimed title in her own right by virtue of the ten-year statute of limitation. There is evidence in the record that Gestean and wife went into possession of the lots in controversy, and remained in possession thereof until the date of the filing of this suit on July 6, 1911. On May 25, 1907, Daniel Gestean, the husband, intervened in a suit pending in the district court of El Paso county, wherein Clark Bishop and others sued Winn and Thorn to recover the title and possession of the premises involved in the present suit. The intervener claimed the premises in his own right by virtue of the ten-year statute of limitation. The plaintiffs in said suit recovered judgment against the intervener and the other parties thereto.

In the present suit the court in its charge instructed the jury that the ten-year statute of limitation ceased to run in favor of Anna Gestean upon May 25, 1907, when her husband intervened in said suit of Clark Bishop and others against Winn and Thorn. It is contended by plaintiffs in error that this intervention by the husband did not stop the running of the statute of limitation in favor of the wife, and same continued to run in her favor up to the date the present suit was filed, and the court therefore erred in that portion of his charge limiting the period of the operation of the statute to May 25, 1907. This is the only error assigned. The record does not show that this objection to the charge was urged in the court below and exception taken, as is required by Acts 33d Deg. c. 59, p. 113. For this reason the assignments must be overruled.

Careful consideration has been given to the able argument of counsel, insisting that the error in the charge complained of is fundamental in its nature, or an error in law apparent upon the face of the record, and that as to such errors consideration should be given to the merits of the objection, notwithstanding the failure to except. It is unnecessary to determine whether it could be considered as an error of this nature. It appears, if error at all, to be simply an erroneous charge upon the true and only issue in the case; and the conclusion is reached that by virtue of the statute, and the failure to except as it provides, the charge as given must be regarded as approved, and all error therein waived. This is the plain language of the statute, and it would be in direct conflict therewith to consider errors in a charge simply because they are fundamental in their nature, or errors in law apparent on the face of the record. There is nothing in the statute to indicate an intention to except such errors from its operation, and to so hold would be to engraft an exception in no wise provided for, and which is contrary to the spirit and purpose of its enactment. In the opinion of this court, it is not permissible to do so.

Had it been the purpose of the Begislature to except such errors from the statute, appropriate language to that effect would doubtless have been used. There is no reason why such errors in a charge cannot be waived. McKenzie v. Irrigation Company, 166 S. W. 497; Needham v. Cooney, 173 S. W. 979.

Affirmed.
      (&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes