author: LANE, J.

text:
    WADSWORTH v. POWELL et ux.
    (No. 7284.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1916.)
    1. Homestead &wkey;>110 — Liens — Constitutional Provisions.
    Under Const, art. 16, § 50, providing that no mortgage or other lien on a homestead shall he valid except for the purchase money, any attempt to create a lien upon a homestead to secure a debt is void.
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. § 176; Dec. Dig. <&wkey;110.]
    2. Homestead &wkey;>21A — Lien—Evidence.
    In a suit on notes executed and delivered by defendants, alleged to have been given in part payment for land conveyed to plaintiff and to foreclose a vendor’s lien, and, in the alternative, for judgment for the land, evidence held to show that the defendants’ conveyance of their homestead for a recited consideration equaling the amount of the indebtedness, which had previously been unsecured, and the defendants’ re-conveyance reciting the consideration of the notes, were intended to create a mortgage lien on the homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 397-399; Dec. Dig. <&wkey;>214.]
    3. Appeal and Error <&wkey;1054(l) — Reversal —Evidence—Trial by Court.
    In a trial before the court without a jury, the admission of incompetent evidence is no cause for reversal, where other testimony sustains the judgment upon the issue.
    [Ed. Note. — For other cases, see Appeal- and Error, Cent. Dig. § 4185; Dec. Dig. <&wkey;> 1054(1).]
    4. Contracts &wkey;>164 — Construing Instruments Together.
    Two or more writings, executed contemporaneously between the same parties and in reference to the same subject-matter, must be deemed one instrument and as forming but the same' contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. &wkey;164.]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Suit by Ed. Wadsworth, independent executor of the will of N. G. Floyd, deceased, against R. E. Powell and wife. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Linn & Austin, of Bay City, for appellant. W. .C. Carpenter, of Bay City, for appellees.
   LANE, J.

This suit was originally brought by Ed. Wadsworth, independent executor of the will of Ni G. Floyd, deceased, on the 30th day of June, 1914, against R. E. Powell to recover upon six promissory notes, each for the -sum of $199.93, alleged to have been executed and delivered by said Powell to said N. G. Floyd on the 3d day of January, 1898, in part payment for 75 acres of land situated in Matagorda county, Tex., conveyed by N. G. Floyd to R. E. Powell on the 3d day of January, 1898, due and payable to said Floyd on the 1st -day of January, 1903, 1904, 1905, 1906, 1907, and 1908, respectively. A foreclosure of an alleged vendor’s lien, retained by Floyd upon said land, was prayed for. Plaintiff also pleaded his superior title to said land and prayed that, in the event a recovery upon said notes for any cause was denied, he have judgment for said land. Isabella Powell, wife of R. E. Powell, was made a party defendant by the plaintiff after R. E. Powell had filed his original answer.

Defendant R. E. Powell and wife, Isabella, answered admitting the execution and delivery of said notes to Floyd by R. E. Powell, but, in defense of recovery upon said notes and the foreclosure of the lien upon the land prayed for by plaintiff, pleaded in substance that they, as husband and wife, constituted their family; that they purchased and became the owners of the said 75 acres of land in 1891; that immediately after such purchase they made the same their homestead; and that it has continued to be such homestead at all times from the date of such purchase up to the date of the trial of this-cause. They further, in substance, allege: That, at the time said notes were executed and delivered to N. G. Floyd, R. E. Powéll was indebted to said ' Floyd upon an open account in the sum of $1,413.44 and in the further sum of $585.55, represented by a certain note executed and delivered by said R. E. Powell to Howard F. Smith, which said note was on said 3d day of January, 1898, owned by N. G. Floyd; the two sums aggregating the sum of $1,999.30, which said indebtedness was wholly unsecured. That for the purpose of securing said indebtedness the said N.. G. Floyd induced defendants to convey to him the said land and homestead with the understanding and agreement that he (Floyd! would at once reconvey the same to them. That in pursuance of said agreement and understanding the said Floyd procured one G. R. Brown, his close friend and bookkeeper, who was also a notary public, to prepare the necessary papers to effectuate said agreement, and that said papers were so drawn by said Brown. That by this arrangement defendants did, on the 3d day of January, 1898, execute and deliver to N. G. Floyd their deed purporting to convey to said Floyd their said homestead for a. recited consideration of $1,999.30 cash, but as a fact no cash consideration passed between said parties. That on the same day, in further pursuance of said' agreement, N. G. Floyd reconveyed said homestead to defendants by deed reciting a consideration of ten notes executed by said R. E. Powell for the sum of $199.93 each, aggregating the sum of $1,999.30. That at said time it was the the understanding and agreement of all parties to said transaction that said papers so drawn, executed, and delivered were to constitute a lien only upon defendants’ said home for the purpose of securing said indebtedness due by R. E. Powell to N. G. Floyd. Defendants further allege that they were illiterate.negroes, unfamiliar with the forms and purport of legal documents, and, reposing full faith and confidence in the said Floyd and Brown, they executed the paper purporting to be a deed from them to said Floyd, conveying their said land to him, believing that same was a mortgage only to secure the two notes executed by R. E. Powell, in lieu of the original indebtedness of $1,999.30 due by him to said Floyd. Defendants also pleaded the four-year statute of limitation in bar of plaintiff’s right to recover upon the notes sued upon. ' ,

Replying to defendants’ answer, plaintiff denied all the defensive matter therein set up.

The cause was tried before the court without a jury, who, after hearing the evidence and argument of counsel, found all issues involved in favor of defendants, and rendered judgment accordingly decreeing the cancellation of said deed from R. E. Powell and wife to N. G. Floyd. From this judgment, plaintiff has appealed.

The petition of plaintiff, as well as the notes sued .upon, show that said notes were barred by the four-year statute of limitation, pleaded by defendants, at the time this suit was filed; therefore, unless it be held that plaintiff held the superior title to said land involved in this suit, he cannot recover.

The undisputed evidence shows that on the 3d day of January, 1898, the date of the two deeds, one from Powell and wife to Floyd, and the other a deed of reconveyance from Floyd to Powell of the land in question, said land was the homestead of Powell and wife. It follows, then, that any attempt to create a lien upon said land, no matter in what manner or form, to secure a debt, is void under the Constitution of this state. Article 16, § 50, Texas Const.; Sanger v. Brooks, 101 Tex. 115, 105 S. W. 37; Chamberlain v. Trammell, 61 Tex. Civ. App. 650, 131 S. W. 227; Loving v. Milliken, 59 Tex. 423; O’Shaughnessy v. Moore, 73 Tex. 108, 11 S. W. 153; Gray v. Shelby, 83 Tex. 405, 18 S. W. 809; Marx v. Baker, 10 Tex. Civ. App. 148, 29 S. W. 908.

Hence, if the two deeds, the one from Powell and wife to Floyd, and the other from Floyd reconveying the same land to Powell and wife, both being executed on the same day, were executed for the purpose of fixing a lien upon said homestead land, the deed from Powell and wife was in its inception void and is still void and did not convey the title to said homestead property to Floyd, and Floyd never at any time owned the superior title to said property for which he sues.

In reaching a conclusion as to whether the deed from Powell and wife to Floyd, of date January 3, 1898, was in fact a deed or only intended as a mortgage, we will eliminate all the testimony of R. E. Powell and Isabella Powell with reference to transactions with or representations made by N. G. Floyd, deceased, concerning the said transactions between them, and will look to other facts and circumstances otherwise established.

As before stated, the undisputed evidence shows that the land in controversy was the homestead of Powell and wife on the 3d day of January, 1898, and had been such for many years prior thereto. The undisputed evidence also shows that on the 3d day of January, 1898, R. E. Powell was indebted to said N. G. Floyd in the sum of $1,999.30; that at said date R. E. Powell and wife, Isabella, executed and delivered to N. G. Floyd a deed by which they purported to convey to said Floyd the land in controversy, which said deed recites a consideration of $1,999.30, cash paid; that on the same day N. G. Floyd reconveyed the same land to R. E. Powell and wife and recited as the consideration the execution and delivery by R. E. Powell of ten promissory notes for the sum of $199.-93 each, aggregating the sum of $1,999.30, one of which was to be paid on the 1st day of January, 1899, and one yearly thereafter until all were paid, a vendor’s lien being retained on said land by Floyd to secure the payment of said notes; that no change in the possession of said land was made, R. E. Powell and wife remaining in possession thereof; that prior to these transactions the debt due by Powell to Floyd was wholly unsecured; and that no cash was paid to Powell and wife at the time said deed from them to Floyd was executed.

G. R. Brown, temporarily residing at Oklahoma City, testified, by deposition taken at the instance of the plaintiff, that he took the acknowledgments of R. E. Powell and Isabella Powell to the deed of date January 3, 1898, by which they conveyed their homestead to N. G. Floyd; that at that time both of said parties knew full well the tenor and effect of the instrument they signed, because he had taken particular pains to fully explain to them the fact that by doing so they would lose their homestead in the event they failed to pay off the deferred payments on the place; that, at the time said deed was executed by Powell and wife, he (Brown) was a close friend of N. G. Floyd, was at his store one day every week, and posted his books for him; that he prepared some legal papers for Floyd, but was not his legal adviser; that he is not sure that he prepared all the papers inquired about, including notes and deeds inquired about relative to the conveyance mentioned, but his best recollection is that N. G. Floyd paid some money for Powell to Howard F. Smith, for some gin machinery purchased by Powell from Smith; that Floyd also furnished Powell with means, cash, and merchandise to run the gin and to carry on his farming operations; that when Powell and wife conveyed the land it was not as a lien to secure Floyd, but that Floyd again sold them the place with the understanding that he would give Powell all the time he wanted to pay for the place; that it is a fact that $1,999.30 was the exact and total amount due by Powell to Floyd when the transactions inquired about were had, but Powell did not agree to give the land as security for the debt, and he told Powell and his wife that they had their choice, to let the machinery go and hold their homestead, or if they sold the homestead and bought it back they might eventually lose it. He also testified, in answer to a question propounded to him by counsel for appellant, that the value of the land in controversy was $50 per acre, exclusive of the gin machinery; that he could not value the gin machinery arid ginhouse without a personal inspection as he had not seen it since 1910.

The undisputed evidence already stated forces us to the conclusion that the papers executed by the parties to the transaction of date January 3, 1898, were simultaneously executed; that they formed but one transaction, and were intended by all the parties thereto to operate as a mortgage only upon the land in question, and the sole and only purpose of all the parties was to secure Floyd in the payment of the debt due by Powell to him. Such being true, the evidence stated was amply sufficient to support the judgment rendered by the trial court, without the necessity of considering the testimony of R. E. Powell and Isabella Powell, objected to by appellant, and no other judgment could have been properly rendered. In a trial before the court without a jury, the admission , of incompetent testimony is no cause for reversal, where other testimony sustains the judgment upon the issue. Beham v. Ghio, 75 Tex. 87, 12 S. W. 996; Haley v. Hail, 135 S. W. 663.

It is a familiar principle that two or more writings, executed contemporaneously between the same parties and in reference to the same subject-matter, must be deemed one instrument and as forming but the same contract. Dunlap v. Wright, 11 Tex. 597, 62 Am. Dec. 506; Howard v. Davis, 6 Tex. 181.

In view of the fact that appellant makes the contention that Powell and wife intended to convey to Floyd an absolute title to their homestead by their deed of January 2, 1898, for the recited consideration of $1,999.30, and in view of his further contention that the testimony of Brown to the effect that the land in question was worth $3,750, exclusive of the ginhouse and machinery thereon, we think it appropriate to make these further observations:

Appellant’s witness Brown testified that, before Powell and wife had executed the deed to Floyd, he (Brown) took particular pains to explain to them that they might lose their homestead in the event they failed to pay the deferred payments. The deferred payments referred to could, from the very nature of the transactions, have been no others than those to be created by a reconveyance of said homestead by Floyd to them in the event they should convey their said homestead under contemplated transaction, for there were no other deferred payments contemplated, so far as the record discloses, to which said statement could refer. It is thus made clear that it had been agreed between all the parties to said negotiations that Floyd in person or through Brown would reeonvey said homestead to Powell and wife, before Powell and wife executed the deed to Floyd. It is also obvious that when counsel for appellant asked Brown to give the value of the homestead property of Powell and wife, and Brown in answer gave the value thereof as $3,750, exclusive of the ginhouse and machinery, such question and answer were to be, and were in fact, understood by both the questioner and witness to refer to the value as it related to the issue involved in the suit.

We have considered all of appellant’s assignments, and what has been said disposes of all of them, and they are therefore overruled.

We find no such error in the trial of this cause as should cause a reversal of the judgment rendered by the trial court. Therefore said judgment is affirmed.

Affirmed.
      ^=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    BURNETT et ux. v. CONTINENTAL STATE BANK OF ALTO.
    (No. 1676.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1916.
    On Motion for Rehearing, Dec. 24, 1916.)
    1. Appeal and Error <&wkey;237(6) — Objection Below — Findings—Evidence.
    Where no objection was made to the submission of a special issue to the jury, nor any motion made to set aside the finding thereon, the objection that such finding was not supported by the evidence could not be set up on appeal.
    ■[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1302½; Dec. • Dig. <&wkey;> 237(6).]
    2. Deeds <&wkey;196(4) — Duress — Burden of Proof.
    One pleading duress in the making of a deed has the burden of proving it.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 649.; Dec. Dig. &wkey;196(4).]
    3. Deeds <&wkey;211(5) — Duress—Evidence.
    In action to obtain possession of property under a deed, the defense being duress in the execution of the deed, evidence held to support special finding of jury that there was no duress.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 646; Dec. Dig. &wkey;211(5).]
    4. Deeds &wkey;s71 — “Duress.”
    Deception by a husband in inducing his wife to sign a deed, by false statements as to threats made against him by his creditors, is not duress which he and she may set up to invalidate the dSéd as against such creditors.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 26-37; Dec. Dig. <&wkey;>71.
    For other definitions, see Words and Phrases, First and Second Series, Duress.]
    5. Escrows &wkey;s5 — Performance of Conditions.
    Where a bankrupt delivered a deed in escrow to be delivered on condition he secured a discharge and had no further trouble with his creditors, the condition as to further trouble with creditors referred to creditors then existing, and did not relate to transactions arising after termination of the bankruptcy proceedings.
    [E’d. Note. — For other cases, see Escrows, Dec. Dig. <&wkey;5.]
    6. Appeal and Error <&wkey;690(5) — Specific Objection.
    Where bill of exceptions does not point out any specific, testimony to which definite objection was applied, error in the admission of evidence is not reviewable.
    '[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2902; Dec. Dig. <®=»690(5).]
    On Motion for Rehearing.
    7. Homestead <&wkey;110 — Conveyances by Wife.
    A married woman’s deed of the homestead, delivered in escrow, is valid where she does not retract before the deed is delivered by the depositary; she not losing her right to retract before that time.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 176; Dec. Dig. <&wkey;110.]
    8. Escrows <s=H4(2) — Waiver of Condition.
    If husband and wife, delivering their deed in escrow to be delivered on conditions, are notified by the depositary before delivery of the deed and make no objection to the delivery, they thereby waive any nonperformance of the conditions.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 19; Dec. Dig. <&wkey;14(2).]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by the Continental State Bank of Alto, Tex., against J. M. Burnett and wife. From judgment for plaintiff^, defendants appeal.
    Affirmed.
    W. J. Townsend, Jr., of Jacksonville, for appellants. Norman, Shook & Gibson, of Rusk, for appellee.
   HODGES, J.

The appellee sued the appellants, J. M. Burnett and wife, for the title and possession of a house and lot situated in the town of Alto, Tex. It claimed title by virtue of two conveyances, one executed by the appellants in May, 1914, and the other in February, 1915. The appellants resisted the suit upon the ground that the land was their homestead, and that the conveyances relied on were intended as mortgages. They also alleged that the second deed referred to above was, after its execution by them, placed in escrow, with the understanding that it was not to be delivered until Burnett received his discharge in bankruptcy, and upon the further condition that he had no further trouble with any of his creditors. In addition to the above, it was also alleged that Mrs. Burnett executed the second deed under duress. It appears from the evidence that the property in controversy had been purchased by Burnett for a homestead, and was being so used at the time the above conveyances were executed. In January, 1915, Burnett, on account of financial embarrassment, had filed a petition in bankruptcy, and the appellee was one of his creditors. The appellee also held as a claim against Burnett a balance of approximately $550 due upon the purchase price of the homestead, which had previously been acquired from the holder of the original purchase-money note. The court submitted special issues, and the jury returned the following findings of fact: That the first conveyance, that made on May 8, 1914, was a mortgage. That the second conveyance, the one dated February 3, 1915, was delivered to' Perkins & Perkins, attorneys, in escrow, to be delivered to the appel-lee upon Burnett’s discharge in bankruptcy. That Burnett was notified by Perkins & Perkins previous to the delivery of the deed to the appellee. That the property in controversy was worth, on the Sth day of May, 1914, $1250. That the conveyance of February 3, 1915, was properly acknowledged by Mrs. Burnett, and was not signed by her under duress. That there was at the date of the trial due upon a vendor’s lien note previously executed by Burnett, including interest and attorney’s fees, $549.46. Upon these findings the court rendered a judgment in favor of the appellee.'

The first error assigned assails the finding of the jury upon the issue of duress, as without sufficient evidence to support it. There was no motion to set aside this finding in the court below, nor was there any objection to the action of the court in submitting that issue. The objection here urged therefore comes too late. Blackwell v. Vaughn, 176 S. W. 912. But even if objection had been seasonably made, the state of the evidence is not such as to require a contrary finding as a matter of law. Appellants, having pleaded duress, assumed the burden of proving it. Burnett testified that prior to the execution of the deed he informed his wife that the attorney and the cashier of the appellee had told him that unless he and his wife gave the bank a good deed to the property, they would give him trouble in the federal court. He construed the intimation as meaning some form of criminal prosecution. Mrs. Burnett corroborated her husband as to what he told her prior to the execution of the deed concerning those threats. Burnett’s testimony was contradicted by the cashier and appellee’s attorney, both denying that any threats were made. If Burnett falsely represented to his wife that such threats had been made, and she was thereby induced to sign the deed, she was the victim of a fraud upon his part, and not of duress. Moreover, the jury was not bound to accept as true the statements of Burnett and his wife, both of whom are parties interested in the result of the suit.

The next assigned error complains of the refusal of the court to submit the following special issue:

“Did the defendant J. M. Burnett have any further trouble with any of his creditors after the execution of the deed by himself and wife dated February 3, 1915? Answer this ‘Ves’ or ‘No.’ ”

The relevancy of that issue must depend upon the following written agreement, which was entered into at the time of the conveyance of February 3, 1915:

“I sign this deed with the understanding that it is not to be turned over to the Continental State Bank until I am notified, and not then only on condition that we get a discharge and have no further trouble with any of the creditors. Perkins & Perkins agree to keep this deed in their possession until this contract is carried out, and also to notify me or my husband before turning over the deed.”

This agreement was signed by Perkins & Perkins and by both Burnett and his wife. At the time it was executed and the deed there referred to was signed Burnett had not received his discharge in bankruptcy, but did receive it some time before the deed was finally delivered to the appellee. The “further trouble” with his creditors, which is relied on to defeat the right to the delivery of the deed, grew out of a contract between Burnett and Sanger Bros., of Dallas, after the discharge in bankruptcy. The evidence shows that Burnett had previously transferred some of his accounts to the appellee and Sanger Bros, jointly, in settlement of a part of his indebtedness, due them.; that after the discharge in the bankruptcy court Burnett, at the suggestion of appellee’s cashier, purchased from Sanger Bros, their interest in those accounts, giving his note with personal security in payment. A dispute afterwards arose between the appellee and Burnett as to the extent of the interest in those accounts which had been owned by Sanger Bros.; and for some reason, not clearly explained, Burnett refused to pay the Sanger note when it became due. Sanger Bros, thereupon filed suit against Burnett to recover upon the note, and this suit was pending at the time of this controversy. This is the trouble which appellants rely upon to defeat their deed.

It is evident from an inspection of this collateral written agreement, in the light of the circumstances then surrounding the parties, that the “further trouble”, with creditors, mentioned as a condition, referred to the creditors of Burnett then existing and whose claims were then being settled. To hold otherwise, and say that it referred to all persons who might thereafter become creditors by reason of any future business transactions with Burnett, would keep the deed in abeyance indefinitely, and practically defeat it entirely. The facts show that the “trouble” or suit by Sanger Bros., grew out of a contract made after the termination of the bankruptcy proceedings, and clearly not that species of trouble, or trouble with that particular character of creditors, which the parties had in contemplation. We, therefore, conclude that the court correctly refused to submit the issue.

The remaining assignment is based upon the admission of testimony objected to upon the ground that it disclosed confidential communications between Burnett and his attorneys. The bill of exceptions does not point out any specific testimony to which a definite objection was applied, and for that reason we are unable to say that any error was committed in the admission of the evidence.

This judgment of the district court is affirmed.

On Motion for Rehearing.

The appellants contend that the evidence conclusively shows that Mrs. Burnett acted under duress when she executed the last deed to the appellee. While, as stated in the original opinion, there was a conflict in the evidence as to whether any threats were ever in fact made to Burnett, it is doubtful if his own testimony raises that issue. In describing the conditions under which Mrs. Burnett signed the deed, Burnett stated that she was sick at the time, and for an hour or more declined to sign the deed. He said:

“She refused to sign it (the deed) until this other-contract was made (referring to the contract placing the . deed in escrow, which was set out at length in the original opinion). * * * I wrote up the agreement for the purpose of getting my .wife to sign titó deed, for she would not sign it until then. But 'the agreement was between us all.”

This testimony tends strongly to indicate that Mrs. Bnrnett was not acting under duress at that time; that she undertook to carefully guard her rights in the property and convey it only upon the conditions stated in the written agreement. To constitute the duress here relied on the agents of the appel-lee must have made the threats of a criminal prosecution to which Burnett testified. The denial by those agents of having made them presented an issue for the jury, which was determined against the appellants. A deception resulting from any false statements by Burnett to his wife that such threats had been made would not affect the validity of the deed, without showing notice of the deception to the appellee. Davis v. Kennedy, 58 Tex. 516; Stringfellow v. Brazelton, 142 S. W. 937; Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595.

The second assignment of error referred to in this motion was not discussed in the original opinion. Under this assignment it is contended that, inasmuch as the property in controversy was the homestead, it could not be conveyed by a deed in escrow, as was done in this instance. The proposition is thus stated in the appellants’ brief: “A pretended sale of the homestead involving any condition of defeasance is void.” In support of that proposition the case of Jones v. Goff, 63 Tex. 254, is cited, along with some other authorities. In Jones v. Goff an effort was made to enforce specific performance of an executory contract entered into by a married woman to convey the homestead, and it was held that such a contract was not binding upon the wife. In Warren v. Jones, 69 Tex. 465, 8 S. W. 775, and Jones v. Robbins, 74 Tex. 617, 12 S. W. 826, our Supreme Court had under consideration the validity of a deed conveying the homestead, which had been executed by an agent under power of attorney signed and acknowledged by the husband and wife. In the first case the court said:

“The power of attorney when followed by the deed of her agent is treated as the conveyance itself. In a bond for title she has to execute another instrument before the legal title passes from her. The conveyance is not fully made until she acknowledges the deed she has bound herself to execute, and this must be done in accordance with the statute. She must be allowed the privilege of retracting before the deed is made, or the statute is not fulfilled. In case of a power of attorney she has that privilege, and may withdraw her consent at any time before the deed is made by her attorney.”

The case of Jones v. Goff was referred to and distinguished, the difference being that in making a bond or contract to convey title something remained to be done in the future —execution of the conveyance. To bind a married woman in advance to make a deed would deprive her of her right to retract. In this case there was no mere contract to convey the title, but the conveyance itself was executed, and nothing remained except to deliver the instrument upon the happening of the contingency the parties had in mind. If the wife executes a deed to be delivered immediately or in future, she may exercise her right of retraction until the deed is placed beyond her power to.recall. But if we concede that she may retract and recall at any time before actual delivery to the grantee, she is bound by her acknowledgment unless she does retract within that time. There is no evidence in this case that Mrs. Burnett attempted to exercise any such right, or that she desired to recall the deed before its delivery to the appellee. On the contrary, there was testimony tending to show that both Burnett and his wife were notified that the deed was about to be delivered, and that they consented.

It is again urged that the court should have submitted the issue as to whether ..or not Burnett had any further trouble with his creditors. Counsel for appellants agree that the construction placed upon the collateral agreement signed at the time the deed was executed is correct, but contends that we erred in our conclusions from the facts. A more careful examination of the record shows, according to Burnett’s own testimony, that on January 9, 1916, he filed a voluntary petition in bankruptcy, and received his discharge before the deed was delivered to the appellee. He testified that during the year 1914 he had assigned some notes and accounts to the appellee bank and to Sanger Bros. These accounts were bought from him, not from the trustee in bankruptcy. They were owned by Sanger Bros, and the bank jointly. He had been paid for them in a settlement had in 1914, before he went into bankruptcy. After he received his discharge in bankruptcy he purchased Sanger Bros.’ interest in the notes and accounts, and had a controversy with the appellee bank regarding the delivery of the half which it claimed. In his cross-examination, when questioned about what trouble with his creditors he referred to in the written agreement, he said:

“I don’t know just what trouble you might say that refers to, but I meant any trouble in the settling of my bankrupt estate with my creditors.”

It is evident from Burnett’s own testimony just referred to that he had no trouble in securing his discharge,' and that the property about which the trouble arose was not part of his bankrupt estate.

There is another reason why we think the court might properly have refused to submit that issue. B. B. Perkins, who held the deed in escrow, testified, in effect, that Burnett and his wife were notified and made no objection to the delivery of the deed. The court, having the right to find all facts not submitted to the jury, might have concluded that, notwithstanding there was trouble with the creditors, that condition had been waived.

We adhere to the original disposition of this case, and the motion for a rehearing is overruled.
      <8r=>For other cases see same topic and KJSY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. CHRISTIAN.
    (No. 1700.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1916.
    Rehearing Denied Jan. 4, 1917.)
    1. Carriers <&wkey;295(l) — Passengers — Duty as to Vestibule.
    While a railroad is under no legal obligation to provide vestibuled trains for its passengers, having done so, it is its duty to use reasonable care to maintain them in a reasonably safe condition by keeping the doors and traps closed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1191; Dec. Dig. <⅜⅛>295(1).]
    2. Carriers <&wkey;323 — Passengers— Assume!! Risk.
    The doctrine of “assumed risk,” as distinguished from contributory negligence, does not apply where a passenger is seeking recovery of damages for personal injuries due' to carrier’s negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1346; Dec. Dig. <&wkey;>323.]
    3. Carriers <&wkey;348(5) — Passengers — Instructions.
    In action by passenger for injuries from falling through vestibule door or trap, it was not error to refuse defendant’s requested instruction to find for it if the jury believed that plaintiff knew, or by the exercise of ordinary care could have known, that the trap and door of the vestibule was open when he went on the platform, and if they further believed that he was guilty of the slightest degree of want of ordinary care, etc., where the court had already instructed the jury that plaintiff could not recover if an ordinarily prudent person would not have gone upon the platform as he did, for, irrespective of the prior charge, the requested instruction was faulty and calculated to confuse.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403, 1405; Dec. Dig. &wkey;348(5).]
    Appeal from District Court, Smith County ; R. M. Smith, Judge.
    Action by J. M. Christian against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    This is the second appeal of this cause (169 S. W. 1102). It was last tried on the same pleadings it was first tried on, and the testimony in the record now presented for consideration is not materially different from that in the record on the former appeal. The statement of the case made in the opinion disposing of the other appeal is acknowledged by the parties to be a sufficient one. That statement was as follows;
    “In October, 1910, the appellant ran a special vestibuled train, in two sections, ten minutes apart, from Tyler, by way of Corsicana, to Dallas and return, to accommodate people attending the state fair. These trains were transported over the appellant’s line to Corsicana, where they were transferred to the tracks of the Trinity & Brazos Valley Railway, and by the latter carried to Dallas and back to Corsicana, at which place they were again transferred to the appellant and brought over its line to Tyler. The ap-pellee, J. M. Christian, was a passenger on the return trip from Dallas on the first section of that train. After leaving Corsicana, and some time near midnight, and while between stations, the appellee fell from the platform of the car in which he was riding, and sustained injuries for which he brought this suit.
    “The testimony shows that after leaving Cor-sicana the appellee, in company with one Charles Erwin, went to the front platform of the coach in which he was riding, and stood there for some time. Erwin had a bottle of whisky, from which he drank and invited others to drink, and appeared to be under the influence of liquor. After the appellee and Erwin had been standing on this platform for some time Erwin rushed into the coach and announced that the appellee had fallen from the train. The door and ‘trap’ of that end of the coach were open, and presumably the appellee fell from the steps or platform by reason of the door and ‘trap’ being left open. The next coach in front of the car occupied by the appellee and his companions was the baggage car, and there was no occasion for passengers to pass upon that platform except in getting on and off the train at stations, or as a loitering place. The testimony was conflicting as to whether or not the appellee was intoxicated at the time he fell from the train. While admitting that he had previously taken several drinks of beer and whisky, he denied being under the influence of drink. He had no recollection of how he fell or what particular circumstance caused him to fall. The fall rendered him unconscious, and he remained by the side of the track in that condition for several hours until picked up by other parties the next morning. Charles Erwin, who was with him at the time, and who appears to have been the only eyewitness to the fall, did not testify upon the trial. After the information given to the train em-ployés that the appellee had fallen, the conductor was requested to stop the train in order that friends might go back and look for him. This was refused upon the ground that the train was being run in sections, and the second section was only about ten minutes behind. Appellee’s friends were therefore compelled to go on until the next station was reached, when they got off and returned on the next train going in that direction. Some time after sunup they found the appellee lying by the railroad track in an unconscious condition. He remained in that condition for some hours afterwards.
    “The appellee alleged negligence in two respects: (1) In permitting the vestibule and ‘trap’ doors to be left open; and (2) in failing and refusing to stop and back the train to the place where the appellee had fallen off, or to stop the train so that the appellee’s friends might-go to his assistance. The appellant pleaded general denial, contributory negligence, and specially pleaded that the appellee was intoxicated at the time he fell from the train, and that his fall was directly and proximately caused by that condition.”
    On the last trial, as on the first, there was a verdict and judgment in appellee’s favor for $1,500.
    Marsh & Mellwaine, of Tyler, and E. B. Perkins and Dan Upthegrove, both of Dallas, for appellant. Simpson, Lasseter & Gentry and Price & Beaird, all of Tyler, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The contention made on the former appeal, that the court should have peremptorily instructed the jury to find in appellant’s favor is renewed on this appeal. It is insisted now, as it was then, that there was no testimony on which to base a finding that appellant was guilty of negligence, and, if there was, that it appeared as a matter of law that the risk appellee incurred in being in the vestibule of the car was one he should be held to have assumed; and, further, that he was himself guilty of negligence. In support of its view of the case appellant insists that, having provided 'its cars with vestibules when it need not have done so, it owed to appellee no duty to keep the outside doors thereof closed while the train was moving, unless it was in the attitude of having induced him, in use he made- of the vestibule, to rely upon its doing so. We think appellant assumed that attitude when it provided the car with vestibules. The fact that the vestibules formed a part of the car was, we think, using the language of the court in Bronson v. Oakes, 76 Fed. 740, 22 C. C. A. 526, “an invitation for him to use it as 'his convenience or necessity might require.” In the case cited it appeared that the plaintiff in going from one car to another in the nighttime mistook on open vestibule door for the door of the car he was attempting to go into, and fell through it. In reversing a judgment for the defendant, entered on demurrers to the plaintiff’s petition, the court said:

“The defendants were under no legal obligation to provide vestibuled trains for their passengers, but, having done so, it was their duty to maintain them in a reasonably safe condition. Railway Co. v. Glover [92 Ga. 132] 18 S. E. 406, 414. The purpose of the vestibuled cars is to add to the comfort, convenience, and safety of passengers, more particularly while passing from one car to another. The presence of such an appliance oñ a train is a proclamation by the company to the passenger that it has provided him a safe means of passing from one car to another, and an invitation for him -to use it as his convenience or necessity may require. Whether, having provided vestibuled cars for their passenger trains, it was negligence in the defendants to leave the vestibule connection between two cars without light, and the outside door of the vestibule open without a guard rail or other protection while the train was running rapidly on a dark night, is a question of fact for the jury to determine. And if, upon the facts set out in the complaint, they should find that it was negligence, no court could disturb their finding.”

In the Georgia case (Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406), referred to in the excerpt from the opinion in the Bronson Case, negligence of the defendant (a street car company) was predicated, in part, on its failure to have the platform gate of its car closed. The court said:

“There may be no negligence whatever in failing to. have gates for the very highest order of equipment may be dispensed with, provided the equipment is sufficient to come up to the standard of extraordinary diligence. This standard may be reached short of the very best or the superlative of the attainable. But, when a company has provided gates, due diligence might require it to use them, and failure to use them might be negligence in the given instance. AVhether it would be dr not is a question of fact for the jury. * * * Extraordinary diligence may require the carrier to use what he has though it would not require him to have as much as he has provided.”

We do not understand either of the three cases cited by appellant as holding to the contrary of those mentioned above.

In Sansom v. Railway Co., 111 Fed. 887, 50 C. C. A. 53, plaintiff’s intestate had taken passage at an intermediate point on a train advertised by the defendant as “a solid ves-tibuled train from Washington to Memphis.” The train in fact consisted of three vesti-buled cars and one without vestibules, for use by other than through passengers. In passing from one of the vestibuled cars to the one not so equipped, the plaintiff’s intestate fell to the ground and was killed. Affirming a judgment for the defendant on a verdict by the trial court, the appellate court, after stating that it knew of no statute or rule of law requiring the defendant to use vestibuled cars, said:

“The through cai-s were properly vestibuled. There was no defect in their construction or management. The fault, if any, was in putting an ordinary car, for the accommodation of local traffic, into the vestibuled train. For such purposes an ordinary car, without vestibules, would be more convenient, if not so safe as vestibuled cars. In the absence of any rule of law requiring all cars to be vestibuled, the negligence in this respect must consist in having, by the advertisement, held out to prospective passengers the assurance that this was a ‘solid vestibuled train,’ whereas it was broken, without notice, by the introduction of the car for local traffic, thereby inducing the passenger to act upon the supposition that he was upon a solid train, and be less guarded in passing from car to car. Assuming, without deciding, that the deceased had a right to rely and did rely upon the statement in the folder, it must be remembered that this car was upon a train to be run in daylight. The want of a vestibule was plainly visible. This is not an action upon contract. There is no claim that the defendant agreed to carry the passenger upon a train of vestibuled cars. Was the railroad guilty of a want of care likely to produce injury in thus introducing a car where it must have been evident to those having occasion to use it that it was not provided with .a vestibule? We think this question must be answered in the negative, and that there was no failure to observe that degree of care, precaution, and vigilance justly demanded by the circumstances, the absence of which constitutes negligence.”

In the course of the opinion the court further said, referring to Bronson v. Oakes, supra:

“It is true that it has been held, and we think properly so, that, where a company has undertaken to provide a vestibuled train, it is negligence to permit the appliances to be out of order, or to leave the doors carelessly open, so that passengers who rely and have a right to rely upon the safety and proper management of the train are injured thereby.”

In Crandall v. Railway Co., 96 Minn. 434, 105 N. W. 185, 2 L. R. A. (N. S.) 645, 113 Am. St. Rep. 653, 6 Ann. Cas. 973, a boy seven years of age, riding on the rear platform of a sleeping car, with vestibules, fell through an outside door of one of the vestibules, left open while the car was moving. It appeared that the boy was accompanied by his aunt, and that she had permitted him to ride on the platform only after she had been assured by the train porter that it was safe, “as everything was securely fastened.” In affirming a judgment for the plaintiff, the court said:

“The defendant was not bound to have the car vestibuled; but, having done so, it could not by acts and words lead its passengers to believe that the doors of the vestibule would.be kept closed between stations, and then negligently leave them open, without incurring liability to passengers injured thereby.”

In Clanton v. Railway Co., 165 Ala. 485, 51 South. 616, 27 L. R. A. (N. S.) 253, the other of the three cases relied upon by appellant, it appeared that the plaintiff fell from the ear platform at a time when the train was at a station and the door to the vestibule, through which she fell, was open so that persons having occasion to do so might pass into and out of the car.

We think the other grounds relied upon as supporting the contention made that the trial court erred when he refused to instruct the jury to find in appellant’s favor also should be overruled. We do not understand that the doctrine of “assumed risk,” as distinguished from contributory negligence, applies where a passenger is seeking a recovery of damages for personal injuries due to negligence of a carrier (Railway Co. v. Carter, 71 S. W. 73); and we do not think it appeared from the testimony as a matter of law that appellee was guilty of contributory negligence.

The court instructed the jury as follows:

“If you shall find that an ordinarily prudent and cautious person, under the same or similar circumstances, would not have gone upon the platform as plaintiff did, he cannot recover.
“If you believe that had plaintiff exercised that degree of care and caution for his own safety that would have been exercised by an ordinarily prudent person under similar circum-slanees he would not have fallen from the train, he cannot recover.”

If we thought, and wo do not, that the instructions just set out wore insufficient as guides to the jury in determining the issue as to negligence or not on the part of ap-pellee, we wonld be of opinion, nevertheless, that the court did not err as complained of by appellant when he refused its special charge No. 20 to find for it if they believed, other conditions concurring, that appellee—

“knew or by the exercise of ordinary care and caution could have known that the trap and door of the vestibule was open at the time he went upon the platform or during the time he remained upon the platform; * * * and if they further believed that he was guilty of the slightest degree of a want of that ordinary care that an ordinarily prudent person would have exercised under similar circumstances to have avoided being injured by reason of the trap and door not being closed, and that he bad not been so guilty of such slight degree of that want of ordinary care that an ordinarily prudent person would have exercised under similar circumstances ho would not have been injured.”

That appellee was chargeable with knowledge that the door was open, if by the exercise of care he could have known it, we think was not an accurate statement of the law. As the door was open, unquestionably he could have known it was, had he used care in inspecting the vestibule, to determine its condition, before he went to it, or while in it. Whether an ordinarily prudent person under the circumstances toould have made such an inspection, or, without making it, would have known the door was open, was the question. Bookrum v. Railway Co., 57 S. W. 919. And we are inclined to think the court also was justified in refusing the requested charge on the ground that the use in it of the language “slightest degree of a want” of ordinary care was calculated to mislead the jury. While the use of the qualifying words would not have authorized the jury to include that conduct on appellee’s part not amounting to a want of ordinary care would render him guilty of negligence, they were confusing and might have led to a misunderstanding of the instruction.

The refused special charge No. 19 was subject to the objection first suggested above to the refused special charge No. 20, and on that ground, it is believed, it was not error to refuse to give it.

The judgment is affirmed.
      tffcsFor other oases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    JOLLEY v. BROWN et al.
    (No. 1069.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Evidence <®=^158(9) — Writ op Possession —Admissibility of Evidence.
    Where a judgment foreclosing a vendor’s lien did not authorize a writ of possession or other writ, and no such writ is found with the papers in the suit or on the clerk’s record, the admission of testimony of a sheriff, in a suit to try title to the land, that he had dispossessed a party in possession of the land under a writ of possession and order of'sale, was error.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 484; Dec. Dig. <&wkey;>158(9).]
    2. Exceptions, Bill op <&wkey;37 — Time por Approval and Piling.
    The better practice is to take the bill of exceptions, have it approved and filed during the trial at the time an adverse ruling is made.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 47, 48; Dec. Dig. <&wkey;37.j
    3. Exceptions, Bill op <&wkey;56(3) — Qualipi-cation.
    A statement by the court, upon a bill of exceptions to the admission of testimony, that the court found the claims of several parties simulated, and that another party was the real beneficiary but claimed no interest in the land and hence could not recover, which rendered the testimony immaterial, was not a qualification of the bill, as it neither denies, modifies, nor explains the facts set out in the bill, but is simply a statement why the ruling admitting the evi-' dence in the opinion of the trial judge is not reversible error.
    [E'd. Noto. — For other cases, see Exceptions, Bill of, Cent. Dig. § 94; Dec. Dig. &wkey;>56(3).]

      4. Exceptions, Bill op <&wkey;51 — Allowance— Qualification.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2063-2067, where a plaintiff in error presents a bill of exceptions, the court has no right to qualify it, but must either sign it, or, if not correct, indorse his refusal to do so and file a proper bill, leaving the plaintiff in error to his remedy of a bill by bystanders if not satisfied.
    [Ed. Note. — Por other cases, see Exceptions, Bill of, Cent. Dig. §§ 74, 78; Dec. Dig. &wkey;351.]
    5. Appeal and Error &wkey;>93S(l) — Review— Presumptions — Qualification of Bill of Exceptions.
    It will be presumed by the appellate court that the qualifications of a bill of exceptions presented by plaintiff in error was made with his consent.
    [Ed. Note.' — For other cases, see Appeal and Error, Cent. Dig. §§ 3795, 3796, 3798; Dee. Dig. &wkey;938(l)J
    6. Trespass to Try Title &wkey;>41(l) — Evidence — Weight.
    A pleading not being evidence, where, in an action to try title, defendants alleged that the claims of other parties were simulated, but the only evidence was the denal of the allegation by one of said parties, his denial left the allegations unsustained ' by any testimony.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. <&wkey;41(l).]
    7. Landlord and Tenant &wkey;>330(2) — Lease —Assignment by Landlord.
    Where the lessor of land conveyed it, his grantee, as the assignee of the lease contract, was entitled to recover crops, or the value thereof, which belonged to the lessor under the terms of the lease contract.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1398; Dec. Dig. <&wkey;>330 (2).]
    8. Landlord and Tenant <&wkey;6S — Title of Landlord — Estoppel of Tenant.
    A tenant cannot dispute the title of his landlord and attorn to another without surrendering possession.
    [Ed. Note. — For other cases, see Landlord and Tenant Cent. Dig. §§ 158, 210-214; Dec. Dig. &wkey;>68.J
    9. Vendor and Purchaser <&wkey;288 — Foreclosure of Vendor's Lien.
    A judgment, in a second foreclosure of a vendor’s lien secured by a series of notes, could in no way affect the title of a purchaser under a prior foreclosure.
    [Ed. Note.' — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 815-819; Dec. Dig. <®=>288.]
    10. Trespass to Try Title <&wkey;48 — Writ of Possession.
    Where a judgment in an action to try title to land expressly dismissed a party from the case without prejudice to his rights, no writ of possession could properly issue against him or his tenant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 72; Dec. Dig. <&wkey;>48.]
    11. Vendor and Purchaser <&wkey;261(5) — Notes — Priority of Indorsee.
    The rule that when the payee of a series of notes secured by a vendor’s lien retains a part of the series, transferring the remainder by the usual indorsement or guaranty, the notes so retained will be postponed in the enforcement of the lien in favor of .the transferees, does not apply where the transfer of a part of the series is without recourse.
    [E'd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 690; Doc Dig. &wkey;> 261(5).]
    Error from District Court, Foard County; J. A. Nabers, Judge.
    Suit to try title by J. J. Brown against W. L. Jolley and others, in which the heirs of R. S. Sparks, who died pending suit, intervened. From the judgment, defendant W. L. Jolley brings error.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for plaintiff in error. G. W. Walthall and R. P. Brind-ley, both of Crowell, for defendants in error.
   HALL, J.

Involved in this suit is the title to and the right of possession of 313 acres of land, including the ownership of certain wheat grown on the premises. R. S. Sparks is the common source of title. He conveyed the land to W. W. Layman June 28, 1909, by general warranty deed, which retains a vendor’s lien upon the premises described therein, to secure the payment of nine promissory notes, in the sum of $500 each. The first two of the notes, upon their maturity, were paid, but Sparks transferred the third note to Mrs. Minnie Shelton and Mrs. Mattie Woods, who, joined by their husbands, filed sued thereon, against W. W. Layman and W. L. Power, as assignee, to foreclose the lien. Judgment was rendered against Layman and Power for the amount of the note, interest, attorneys’ fees, and costs, and foreclosing the lien upon the land in controversy, with the usual provision directing order of sale and writ of possession. The sheriff of Foard county sold the land under this judgment on April 1, 1913, at which sale R. W. Warren became the purchaser. In the fall of 1913, Warren leased the premises to J. J. Brown under a contract, by the terms of which Brown should sow 80 acres of the land in wheat, and in consideration of his services should be paid $40 and have the free use of the remaining land for pasturage. It was stipulated in this contract that Warren should have all of the wheat grown on the 80 acres. On the 11th day of April, 1914, Warren conveyed the land to R. T. Williams, by warranty deed; on June 4, 1914, R.'T. Williams conveyed it to plaintiff in error, Jolley.

Soon after the land was purchased by Warren under the foreclosure sale mentioned above, R. S. Sparks, J. F. Sparks, R. E. Sparks, and T. N. Sparks filed a second suit to foreclose the lien securing the remaining six vendors’ lien notes. Warren was in possession of the land at this time and, together with Layman and Power, was made a party to the suit. The defendants answered. Warren filed a general and several special exceptions in addition to answering to the merits. Upon a trial of that case before the court without a jury, after the evidence had been introduced and the court had considered the case for some time, one of Warren’s special exceptions was sustained, which had the effect of dismissing him from the suit. The plaintiffs did not ask leave to amend, but took judgment against Layman and Power, foreclosing the lien on the land in controversy as against them and as to Warren provided as follows:

“It is further ordered, adjudged, and decreed by the court that the defendant R. W. Warren’s special exception No. 7 be sustained, and that the said defendant, R. W. Warren, be dismissed from this cause without any prejudice to any equitable rights he may have in the premises, and that said defendant R. W. Warren go hence without day, and that plaintiffs take nothing as to him, and that he recover his costs in this behalf expended, and for which execution may issue against plaintiffs.”

Order of sale was issued on this judgment in due time and the premises sold January 6, 1914, to the defendants in error R. S., J. F., R. E, and T. N. Sparks. At the time of this sale, defendant in error Brown was holding the land under a written lease from R. W. Warren. Williams, who purchased the land from Warren April 11, 1914, visited the premises to see about the wheat, and learned that Brown had arranged to take the wheat himself and pay rent out of it to R. S. Sparks and his sons. Williams tendered Brown $40 due him under the contract, although the amount was not payable until July 15, 1914, which Brown refused. Upon learning that Brown had repudiated his rental contract made with Warren and had attorned to Sparks, Williams declared the contract forfeited and proceeded to take possession of the premises. Immediately Brown filed this suit and was granted a temporary injunction. In the meantime, he harvested and marketed the wheat, amounting to 1,492 bushels. R. S. Sparks died in the meantime, and his heirs intervened, claiming title to the land.

The issues were tried by the court, without a jury, April 3, 1915, resulting in a judgment for the plaintiff Brown, against the defendants W. L. Power, P. O. Williams, and R. T. Williams for $1 damages, perpetuating the injunction against said defendants and plaintiff in error, restraining them from interfering with possession of the land in controversy and decreeing that plaintiff in error take nothing by reason of his claim for wheat, and against him in favor of the inter-veners Sparks and others for the land in controversy.

Plaintiff in error assigns, first, that the court erred in admitting in evidence, over his objections, the testimony of the sheriff of Foard county, to the effect that said officer had dispossessed Brown under a writ of possession and order of sale issued out of the distinct court, in the case of R. S. Sparks et al. v. W. W. Layman et al.

The contention of plaintiff in error is that since the law requires an officer executing an order of sale and writ of possession to indorse thereon his return in writing, showing how he had served the same, and. further provides that record shall be made thereof by the county clerk in a minute book kept for the purpose, such written return is the best evidence of how the writ was executed.

In the case of Ayres v. Duprey, 27 Tex. 593, 86 Am. Dec. 657, it is held that the official return made upon process by a sheriff is the best evidence of his action, and as a general rule, in the absence of fraud or mistake, it cannot be varied or contradicted by the parol testimony of such officer.

It appears from the record that the judgment did not authorize a writ of possession or other kind of writ to issue against R. W. Warren, or his tenant Brown. No such writ was found with the papers in the original suit, nor did the clerk’s record show that any had ever been issued. The clerk did not remember that he had ever issued it, and the officer’s return on the order of sale did not show that Brown was dispossessed. We think the court erred in admitting the oral testimony.

Under this assignment plaintiff contends that the court has erred in qualifying his bill of exceptions to the admission of this testimony, as follows:

“Examined, approved and ordered filed as a part of the record in this cause, this the 25th day of May, A. D. 1915, with the qualification that in considering this matter the court found from the evidence, which founded on sufficient pleading, that the claim of Warren was only simulated, as was also Jolley and Williams, and that W. L. Power was the real beneficiary of the Warren claim inasmuch as Power claimed no interest in the land by any pleading in this case, he could not recover, and the matters above set forth became immaterial, and no other judgment could have been rendered,. either with or without the above testimony. The court had stated to both counsel that in rendering judgment he would discard all immaterial and incompetent testimony.” (Signed by the trial judge.)

Upon the bill of exception the following appears:

“Intervener objects to the above qualification for the reason that there was no evidence introduced as is shown by the statement of facts herein to justify a finding that his claims herein were simulated, and he accepts this bill under protest because he has no other way of preserving the bill of this time.” This is signed by the attorney for plaintiff in error.

It appears from the statements in the brief that this bill of exception was not written out and signed by the court at the time the evidence was admitted. This is rarely ever done; but the better practice is to take the bill of exceptions, have it approved and filed during the trial and at the time the adverse ruling is made.. While it would tend to retard the trial, the result would be more satisfactory, and criticisms, -such as appear in this record, would be avoided. This statement by the trial judge upon the bill of exception is really not a qualification. It neither denies, modifies, nor in any way explains the facts set out in the bill, but is simply a statement to this court why the ruling in the opinion of the trial judge is not reversible error. Plaintiff: in error contends that he had no reason to expect any qualification whatever when the hill was presented for approval,' since the court did not indicate, at the time the exception was taken, that any qualification would he entered on it. The rule of procedure in such cases is clearly indicated in Brunner Fire Ins. Co. v. Payne, 54 Tex. Civ. App. 501, 118 S. W. 602, and in Dennis v. Kendrick, 163 S. W. 693. Under the statute, the trial judge has no right to qualify a hill of exception without the consent of the party presenting it. Vernon’s Sayles’ Civil Statutes provides, by article 2063, that it shall be the duty of the party taking any bill of exception to reduce it to writing and present it to the judge for his allowance; whereupon, as is provided by article 2064, it becomes the duty of the judge to submit such bill to the adverse party or his counsel, and, if it is found to be correct, it shall then he signed by the judge without delay and filed with the clerk.

Article 2065 provides that, in the event the judge shall find such bill of exceptions to be incorrect, he shall suggest to the party, or his counsel who drew the bill, such corrections as he may deem necessary, and, if they are agreed to, the corrections shall be made, the bill signed and filed with the clerk. Article 2066 provides that, should the party presenting the bill not agree to the corrections, the judge shall return it to him with his refusal indorsed thereon and shall make out and sign and file with the clerk such a bill of exceptions as will in his opinion present the ruling of the court in that behalf as it actually occurred. If we consider these proceedings as taking place during the trial, as is evidently contemplated by the statute, the remedy given the party presenting the bill is provided by article 2067. This article provides that such party may procure the signatures of three respectable bystanders, citizens of this state, attesting the correctness of his bill, and have the same filed as part of the record. The hill in the instant case was not presented to the judge until some 20 days after the adjournment of court. This was, of course, too late for plaintiff in error to have prepared and filed a bystanders’ bill; and, if we admit that the trial judge was unfair in appending to the bill qualifications of which plaintiff in error had no notice at the time the exception was taken, the fault is attributable to plaintiff in error in not asking the court to stop the trial and take his bill at the time the ruling was made.

We must presume that when a bill of exceptions appears in the record, which has been qualified by the court, the qualification was made with the consent of plaintiff in error. To consider protests -by attorneys who have accepted the bill and filed it as part of the record would bring up issues of fact which the appellate courts should not be asked to decide. Imperfections in the record and all issues relating to the proper presentation of the case in this court must be settled in the trial court Neville v. Miller, 171 S. W. 1109. We are unable to find anything in this record sustaining the trial court’s statement that the claims of Warren, Williams, Power, and Jolley were simulated. It is true the defendants alleged that their claims were simulated, but the only witness who testified upon that issue was Power, and he denied it unequivocally. The pleading, of course, was not evidence, and Power’s denial left the allegations unsustained by any testimony. Starkey v. H. O. Wooten Grocery Co., 143 S. W. 692. On the contrary, we find transfers of the land to each of these parties and a duly executed written lease of the entire tract from Warren to Brown, which, prima facie, show a valid claim. The evidence of Campbell as to the issuance and execution of the writ of possession not being admissible, and there being no other evidence tending to show that Brown or Warren had been dispossessed under the Sparks judgment, Jolley, as assignee, was entitled to all the wheat under the lease contract between Warren and Brown. Whitehead v. Fisher, 64 Tex. 638. If upon another trial the evidence should be the same, plaintiff in error, Jolley, should recover the wheat or its value. Brown could claim only the sum of $40, as provided in the lease contract. As the tenant of Warren, he could not attorn to Sparks. Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562; Lang v. Crothers, 21 Tex. Civ. App. 118, 51 S. W. 271; Bruce v. Richardson, 26 Tex. Civ. App. 615, 64 S. W. 785; Hulett v. Platt, 49 Tex. Civ. App. 377, 109 S. W. 207.

The judgment in the Sparks foreclosure in no way affected the right acquired by Warren by his purchase of the land under the first foreclosure. The above quotation from the judgment expressly dismisses him from the case without prejudice to his rights. Therefore no writ of possession could properly issue against him or his tenant, Brown. Taylor v. Ward, 102 S. W. 465; Jeffus v. Allen, 56 Tex. 195.

While it appears from the record that the first two notes of the series were paid to Sparks, it is not shown who paid them, and we cannot pass upon the merits of plaintiff in error’s contention that the proceeds of the land should be distributed at the ratio of three-ninths to Warren and sixth-ninths to Sparks. The record discloses that, after the payment of the first two notes, the third was transferred to Minnie Shelton and Mattie Woods, by R. S. Sparks, and that he retained the remaining six notes. We are asked to reverse and render the case; but, on account of the lack of information furnished by the record, we are unable to adjust the equities. As said by Conner, C. J., in Martin v. Gray, 159 S. W. 118:

“It seems to be finally pretty well settled, where a payee of a series of notes * * * retains part of the series transferring the-remainder by the usual indorsement or guaranty, that then the notes so retained by the payee will be postponed in the enforcement of the lien in favor of those to whom part of the series may have been so transferred”; but this rule “is not applied, nothing else appearing, where the payee * * * transfers part of a series of notes without recourse” — citing Fitch v. Kennard, 133 S. W. 738; Walcott v. Carpenter, 132 S. W. 981; Perry v. Dowdell, 38 Tex. Civ. App. 96, 84 S. W. 833; Anderson v. Perry, 98 Tex. 493, 85 S. W. 1138; Dilley v. Freedman, 25 Tex. Civ. App. 39, 60 S. W. 448; Lewis v. Ross, 65 S. W. 504; Douglass v. Blount, 93 Tex. 499, 56 S. W. 334.

Plaintiff in error urges several other assignments of error, some of which are disposed of by what we have already said. On account of the meagerness of the statement of facts and the failure of the trial court to file findings of fact, we are not able to pass upon the questions raised by most of the remaining assignments.

Because of the errors pointed out, the judgment is reversed, and the cause remanded.
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author: PLEASANTS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. FINFROCK.
    (No. 7261.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1916.
    Rehearing Denied Jan. 4, 1917.)
    1. Telegbaphs and Telephones <&wkey;66(4)— Transmission of Monet — Delay in Deliv-ebt — Sufficiency of Evidence.
    Evidence, showing failure of a telegraph company to make timely delivery of money telegraphed by parents to son, who was unable to obtain medical aid on account of lack of funds and was forced to rely on charity, was sufficient to sustain finding that the son suffered physical pain and mental anguish as a result of the company’s negligence.
    [Ed. Note. — For other cases, see Telegraphs anti Telephones, Cent. Dig. § 63; Dec. Dig. &wkey;> 66(4).]
    2. Telegbaphs and Telephones <S=08(1)— Delay — Mental Sufeebing.
    Mere disappointment or embarrassment is not such mental pain or anguish as to permit a recovery of damages for delay in delivery of telegram.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 69; Dec. Dig. &wkey;> 68(1).]
    3. Telegbaphs and Telephones <&wkey;67(2)— Transmission of Money — Knowledge of Consequence.
    Where a telegraph company had knowledge of appellee’s need for money telegraphed to him and the probable consequences of delay, it is liable for injury caused by its negligent delay.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. <3=67(2).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by G. M. Finfrock against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover damages for physical and mental pain and suffering alleged to have been caused him by the failure of defendant to comply with a contract made by it by which it agreed and promised to deliver to appellee at Maryville, Tenn., $32, which was deposited with defendant at Houston, Tex., for delivery to ap-pellee as above stated. Plaintiff’s petition alleges, in substance:

“That on or about February 1, 1915, he was at school in Maryville, Tenn.; that on or about said date he received an injury from which blood poison resulted, causing him mental and physical pain and anguish; that at said time and place he was without funds with which to furnish himself with board and lodging, and necessary and proper medical treatment; that about said time he communicated his said trouble to his parents at Houston, Tex.; that thereafter, on the morning of February 6,1915, plaintiff’s sister and mother entered into a contract with defendant’s agent for the transmission and delivery of $32 to plaintiff by noon of February 6, 1915; that defendant was notified at said time of the facts as to plaintiff’s condition, and obligated himself to deliver said sum to plaintiff at Maryville by noon of February 5, 1915; that defendant failed to perform its said contract and failed to deliver said money to plaintiff until February 13, 1915; that as a direct and proximate result of the breach of said contract plaintiff was without funds for a period of seven days; that he was compelled to subsist on charity of friends; that he was without proper and adequate medical treatment and drugs; that he suffered great mental and physical pain and anguish by reason of being unable to provide himself with necessary and proper treatment and drugs, and that as a result thereof his condition by reason of said blood poison was aggravated and extended, and he was caused to suffer shame, humiliation, physical pain, and mental anguish which he would not have suffered had defendant performed its contract.”

The amount of damages claimed was $1,-999.16. The trial in the court below with a jury resulted in' a verdict and judgment in favor of plaintiff for the sum of $100.

The only question raised by appellant’s brief is whether the evidence is sufficient to sustain the finding that plaintiff suffered any damage which was a proximate result of the failure of defendant to comply with its contract. The evidence shows that appellee, who was at school in Maryville, Tenn., became sick in the latter part of January, 1915, and wrote his father, who resides at Houston, Tex., telling him of his condition. On February 5th he telegraphed his father as follows: “What shall I do? Expenses paid until Tuesday; need them.” In response to this telegram appellee’s mother and sister went to the office of appellant at Houston and inquired if appellant had an office at Maryville and would undertake to deliver money at that place to appellee. Receiving an affirmative answer, they gave appellant’s agent $32, which he agreed to deliver to appellee at Maryville by noon of that day, February 5, 1915. They paid the agent $1.16, the. amount charged for making delivery of the money. They also told the agent that appellee was sick. As to what was told the agent Miss Finfrock testified:

“I did tell this agent about the condition of my brother; that is, I told the man. I also told him at that time it was necessary for my brother to have the money at a particular time, and that he was sick and needed the money to come home on. We also told him my brother couldn’t get medical attention in the town he was ; that it was a small place; and in reply to that he simply made the statement that he would have the money there in time so he could make that evening train home.”

On the night of February 5th the following message was sent to appellee by his father:

“Money follows tomorrow for ticket home. We' shall be very glad to see yo'u. Am sorry your health is bad but will soon have you well again. Will look for you next week.”

Appellee testified, as follows:

“In February, 1915, in the early part of it, I was in Maryville, Tenn., going to school there. Received an injury in January, 1915, which along in the first part of February resulted in blood poisoning in my left hand. At the time the blood poison started my financial condition was very low; do not know just how much money I did have, but not more than $2. I did communicate my financial condition to my parents, and received from them a telegram dated February 5th, which you handed me. I received this night letter on Saturday, February 6th. During the time I was expecting this money, well on Saturday the day I received this message it was, I spent the last cent I had because I expected it would be in, and I needed some things, some clean collars for one thing, and I went and bought some, and spent the last cent I had. While I was waiting for this money, I stayed with any of the boys that I could get to keep me, and I borrowed money off of several of the boys to buy meals with. I would borrow money off of the boys, and sometimes it was kind of hard to borrow it too. I would have difficulty at times borrowing money. My physical condition at the time, with the exception of my eyes, was all right. My eyes troubled me a great deal and then both my hands were in a bad condition. Guess I was all right otherwise. As to my hands, I had blood poisoning in this hand in three places (left hand) in the back of the hand, I had a bone felon on this thumb (right hand). Both hands were wrapped up all the time. I had no money with which to secure medical attention. In order to get proper medical attention, I would have to go to Knoxville; that being a town of some size. Maryville is only a small place, and they only have small town doctors. I went to both the doctors in Maryville, and they told me there was nothing wrong with my thumb, except that there was a hanging nail, and there was no use doing anything for that except to bandage it up and let it go. When I finally did get the money I got the bone scraped by a doctor at Knoxville. I had the nail taken off and had it treated, but I had then gotten the blood poisoning in my (left) hand pretty well along under control myself. I was embarrassed in a great many ways by reason of my financial condition when waiting for money and being without funds. I knew the folks had sent the funds to me, and it is not very pleasant to be without money to buy your meals with and pay your own board bill with, and it is kind of hard to go around among your friends and ask them.”

The money was not delivered to the appel-lee by the appellant until February 12th, which was seven days after it had agreed and contracted to deliver it. We think the testimony before set out is sufficient to sustain the finding that appellee suffered both physical pain and mental anguish as a result of appellant’s failure to comply with its contract.

Appellant’s contention that mere disappointment or embarrassment is not such mental pain or anguish as will permit recovery of damages therefor is sound, and finds support in adjudicated cases. Telegraph Co. v. Chamberlain, 169 S. W. 370; De Voegler v. Telegraph Co., 10 Tex. Civ. App. 229, 30 S. W. 1107; Ricketts v. Telegraph Co., 10 Tex. Civ. App. 226, 30 S. W. 1105. But the evidence in this case justifies the conclusion, that appellee suffered more than disappointment and embarrassment. His physical condition was such that it must have caused him physical suffering, and this suffering was prolonged because of his inability, on account of appellant’s failure to comply with its contract, to procure proper medical attention. The fact that he was in this condition and needed this attention which he was unable to procure must have made his mental suffering exceed that of mere disappointment. The extent of appellee’s physical and mental suffering was a question for the jury. While it is apparent from the amount of the verdict that the jury did not consider such suffering to have been very acute, we think its character was such as to entitle appellee to compensation therefor. Telegraph Co. v. Chilson, 168 S. W. 878; Goodwin v. Telegraph Co., 160 S. W. 107.

The evidence shows that appellant at the time it made the contract knew appellee’s condition and his need for the money, and the probable consequences of its delay in performing its contract must have been anticipated. In these circumstances it is liable to appellee for the injury caused him by its negligence.

It follows from what we have said that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
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