author: BUCK, J.

text:
    SCOTT v. S. H. KRESS & CO.
    (No. 8505.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 20, 1917.
    Rehearing Denied Feb. 10, 1917.)
    Vendor and Purchaser &wkey;>28 — Construction of Contract — Erection of Building —‘ ‘Intention” — ‘ ‘Promise. ’ ’
    Where a vendor waived the requirement of his written offer of sale that the purchaser should erect a building on the property, and the purchaser in letters, coming to the vendor’s knowledge stated that they purchased without any building condition, and that, while they intended to build, they did not mean to covenant to do so, there was nothing more than an expressed intention to build, and not a promise, the nonperformance of which would give the vendor a cause of action for damages; an “intention” being but the purpose a man forms in his own mind, which may begin and end with the person forming it, while a “promise” is an expressed undertaking or agreement to carry the purpose into effect, which, if supported by a good consideration, can only be rescinded by act of both parties; a declaration, verbal or written, made by one to another for a consideration, by which the promisor binds himself to do, or not to do, some act, and gives to the promisee a legal right to demand and énforce fulfillment (citing Words and Phrases, First and Second Series, Intention; Promise).
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 18, 19, 22; Dec. Dig. <©¿=>28.3
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Suit by O. F. Scott against S. H. Kress & Co. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Davis & Davis, of Gainesville, for appellant. Garnett & Garnett, of Gainesville, for appellee,
   BUCK, J.

On December 15, 1910, appellant, O. F. Scott, after some negotiations with one West representing S. H. Kress & Co., a Texas and New York corporation, offered, in writing, to sell to said Kress & Co. for $12,800, clear of taxes, except for the year 1911, 50x96 feet of land situated in the southeast corner of block No. 3 in Gainesville, Tex. Among other things, said written offer contained the following:

“The purchaser agrees to erect not less than a two-story brick building on said property, and said building to be occupied by one of the Kress stores. Said building to cost about $20,000 (twenty thousand dollars).”

After considerable correspondence between Scott and Kress & Co., the latter represented .by their attorneys in New York, said Scott agreed to waive his insistence that this stipulation as to the erection of a building by Kress & Co., should be put in the deed from him to it, and on February 20, 1911, Scott, by general warranty deed, conveyed to Kress & Co. said lot for $12,800 cash consideration. On October 1, 1913, Scott brought this suit against Kress & Co., alleging that, in addition to the, consideration of $12,800 expressed in said, deed', Said', Kress & Co', agreed to erect upon the land purchased the character of building heretofore described, and that the enhancement of other property in the same block owned by plaintiff was one of the considerations moving to him to make said sale, and that said Kress & Co. had failed to build and establish a store upon said lot, though a reasonable time had elapsed since said sale in which to comply with its alleged promise so to do, and that plaintiff had suffered damages in the sum of $10,000, by rea.son of the loss of the enhancement of the value of his remaining property, which would have accrued to him had said building been erected and store established. Defendant denied the making of such promise, with reference to the erection of any such building, as would bind it, and alleged that any statements made with reference to the erection of a building on said lot were merely expressive of its intention and purpose, and did not constitute a promise or obligation on its part. That it was still its intention to erect said building when conditions would justify it. The cause was tried before a jury on special issues submitted, and resulted in a verdict and judgment for defendant. Plaintiff appeals.

Appellant has filed, in this court a brief containing some 16 assignments of error; some attacking the findings of the jury upon certain special issues submitted, others complaining of alleged improper conduct on the part of appellee’s attorneys in their argument to the jury, sljll others complaining of the ruling of the court as to the admission of certain testimony, but after carefully considering -these assignments, and examining the authorities cited in support thereof, we have reached the conclusion that the trial court would have been justified, under the admitted facts, in peremptorily instructing a verdict for the defendant.

On January 23, 1911, Kress & Co. wired Scott, acknowledging the receipt of his written offer to sell his property, and stating that said offer was “accepted substantially as set forth in letter now writing.” In the letter referred to, which was received by Scott, Kress & Co., through their attorneys, Holm, Whitlock & Scarff, stated, in part, as follows:

“Accepting your contract in this qualified way, it was intended that it should be accepted upon the following conditions, viz.:
“1. By reference to this contract, you will note that it contains a clause whereby the purchaser agrees to erect not less than a two-story brick building, on said property, said building to be occupied by one of their Kress stores, and to cost about $20,000.00.
“S. H. Kress & Co. is buying this property for the purpose of erecting a building to be occupied by one of their stores, and if the property is purchased, the building will be completed as soon as they can reach your town and complete the building, and the store will thereupon be opened. We want it understood, however, that this is not to be deemed a covenant that will run with the land. We would not want this agreement turned up at some future time, should client desire to sell this property, and the objection made upon the title for that reason.
“Client is acting in good faith, but we do not want any clause of that kind that will affect the title. It may be that the business center of the town may change and it may be desirable to sell this property and buy another piece of property. A number of contingencies may arise, making it desirable to dispose of the property in question, or to have it occupied for other purposes, and therefore we want it understood that this is simply a naked purchase and unburdened by any conditions. We give you, however, the assurance that the present intention of client is, as above set forth.”

By letter of January 24, 1911, written to a third party who seems to have acted as an intermediary between the appellee and appellant, and which letter was submitted to Scott, Kress & Co. used the foliowing language:

“We inclose you herewith a copy of a letter this day mailed to seller. Please ask him to show you his copy of tbe contract, and that will make the objections we raise clearer. You doubtless appreciate the force of our objections. We do not want to be tied down absolutely to the conditions set forth in the contract, involving the erection and occupation by client of the building for one of its stores. Client is acting in utmost good faitb, is paying a high price for the property, and purposes to occupy same as set forth in the contract, but we do not want any clause of that kind running with the land in the nature of a cloud on the title as it may be in the future desirable that said property be disposed of or other changes made. The insertion of such a clause is extremely injudicious. Doubtless the seller will waive that point, and our acceptance of the contract is conditioned on such waiver. * * *
“New Agent. If this transaction goes through, we will require a new local agent to collect rents and represent us as an agent. Please recommend some good reliable real estate agent for that purpose. We usually pay five per cent, for the collection of rents.”

On January 31, 1911, a letter was written by said intermediary to Kress & Co.’s attorneys of New York, containing, among other things, the following language:

“We have had a talk with Mr. O. F. Scott, in reference to his contemplated sale to S. H. Kress & Co. Mr. Scott claims that he is selling the property for something less than it is worth, because he thinks the sale enhances the value of other property in the same vicinity. He says he will not insist on any provision going into the deed requiring S. H. Kress & Co. to build on the lot or to run one of its stores there, but he wants some assurance that they will build upon the lot and at least establish one of their stores there. The truth is, the whole neighborhood is very anxious for S. H. Kress & Co. to build and open a store there.”

On February 18th following, Kress & Co.’s attorneys replied:

“In reference to alley, client will waive that point. In reference to Kress building, we assume that our' letter of January 23d-24th or 25th (date on our carbon is unreadable) to the seller, copy of which we sent you, will be sufficient assurance for him.
“We repeat that client buys the property in good faith and will erect a building thereon and will occupy same with one of its stores. As set forth in aforesaid letter, we do not want this to be deemed any sort of covenant or contract and seller must accept our assurance in good faith. As we are acting in good faith. Client, however, refuses to be bound thereby.”

' It was admitted in the trial of the case by plaintiff and his attorney that the former saw all of the letters written by Kress & Co., or its attorneys, and the replies thereto, with reference to th'e desired stipulation in the deed as to the erection of the building on the lot purchased, and that Scott was advised of the fact that Kress & Oo. refused to purchase the lot, unless the vendor should waive this stipulation, but it was contended by plaintiff in the court below, and is urged by the appellant here, that the elimination of said stipulation from the deed was consented to by Scott in order to meet the objection of Kress & Co.’s attorneys that such a stipulation incorporated in the deed would constitute a covenant running with the land, and hamper the vendee in any subsequent transfer that it should see fit to make; that Scott understood and agreed that said covenant should not be included in the deed, but that he further understood that Kress & Co. had promised and obligated itself in writing to erect the building described within a reasonable time. That had it not been for this understanding on the vendor’s part, he would not have sold the property at the price he did, which he asserts was much below the market price of said property at the time of the sale.

There is no claim by appellant that any binding promise was made by appellee to erect the building in question, unless it is contained in the letters written under its authority, and especially those excerpts of such letters herein above set out. There is no allegation in plaintiff’s petition of fraud on the part of Kress & Co. in making the statements with reference to its intention to improve the property. It is simply a question of whether or not there was any written agreement to erect said building, and, if so, whether or not Kress & Co. had breached its contract so to do. We think the language used in the letter to appellant of January 23, 1911, to wit:

“It may be that the business center of the town may change, and it may be desirable to sell this property and buy another piece of property. A number of contingencies may arise making it desirable to dispose of the property in question and to have it occupied for other purposes, and, therefore, we want it understood that this is simply a naked purchase and unburdened by any conditions”

—plainly disavows the purpose and intention on the part of Kress & Co. to be bound by any conditions not expressed in the deed, and especially a refusal to obligate itself to improve the property purchased by establishing one of its stores thereon. This intention is reiterated in the letter of February 18, which closes with the words:

“We do not want this to be deemed any sort of covenant or contract, and seller must accept pur assurance in good faith. As we are acting in good faith. Client, however, refuses to be bound thereby.”

It is evident from these letters that appel-lee expressed its intention to improve the property purchased by erecting a building thereon, and it is equally clear that it specifically declined to promise to do so. As is said in Words and Phrases (1904) p. 5675:

“An intention is but the purpose a man forms in his own mind. A promise is an expressed undertaking or agreement to carry the purpose into effect. The intention may begin and end with the person who forms it; a promise supported by a good consideration, can .only be rescinded by the act of both parties to it; for to make a binding-promise there must be a prom-isee as well as a promisor. The expression of an intention to do a thing is not a promise to do it. * * * It is not easy to define the difference between a ‘promise’ and an ‘expression of intention.’ Perhaps it lies in this: That the latter is merely an evidence of the condition of the mind with respect to future action, which concerns only the individual entertaining it, and which no one has the right to require him to execute, while the former is intended to give some other person an assurance, which he will be expected to rely on, that the act will actually be done or refrained from.”

A. promise is a declaration which gives to a person to whom it is made a right to expect or claim the performance or nonperformance of some particular thing; or, differently expressed, a promise is a declaration, verbal or written, made by one person to another, for a good consideration, by which the promisor binds himself to do, or not to do, some act, and gives to the promisee a legal right to demand and enforce fulfillment.

We do not see how appellee could well have more definitely and positively disavowed its purpose or willingness to be bound to perform th'e stipulation which appellant desired to be included in the deed, but which he afterwards waived. Appellee did express its intention to erect the building within a reasonable timé, and stated that such expression of intention was made in good faith, but the good faith of such statement at the time it was made has not been attacked by pleading or proof. See Graham, Paper Co. v. Williams, 175 S. W. 803.

While, as we have heretofore stated, we have éxamined all of appellant’s assignments, and, further, we find no reversible error presented, yet we have concluded that from the letters themselves, upon which plaintiff predicated his claim for damages, the jury would not have been justified in finding a verdict for plaintiff, nor in returning a verdict other than that returned. All assignments are overruled, and the judgment is affirmed.

Affirmed.
      <§r=>For other eases see same,topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    ADAMS v. ADAMS et al.
    (No. 128.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1916.
    On Motion for Rehearing, Dec. 14, 1916.)
    1. Partition <&wkey;94(l) — Record — Nunc Pro Tunc Entry — Defense.
    Where the report of commissioners appointed by the probate court to partition and distribute land was not recorded as directed by law, the filing and recordation of the report under a nunc pro tune order secured nearly 50 years after the report was made did not add any legal force to the action theretofore had in the probate court.
    [Ed. Note. — Eor other eases, see Partition, Cent. Dig. §§ 287-293; Dec. Dig. &wkey;94(l).)
    2. Partition c&wkey;o — Irregularities—Ratification.
    In an action of trespass to try title, evidence held to show that a partition of the land by commissioners appointed by tbe probate court nearly 50 years before, irregular because the commissioner’s report was not filed and recorded as required by law, has been recognized and ratified by the interested parties by deeds and acts of ownership.
    [Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. <&wkey;5.]
    3. Partition @=»5 — Defective Proceedings —Effect of Ratification.
    Where the interested parties for nearly 50 years recognized and ratified partition of land irregular because the report of the commissioners appointed by the probate court was not filed and recorded as required by law, such .conduct on their part established the equivalent of an oral partition of the land.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;5.]
    4. Partition <&wkey;5 —Oral Partition — Evidence.
    In an action of trespass to try title, where it was shown that the interested parties had by recognition and ratification of a partition of the land by the probate court, irregular because of a defect in the proceedings, established tbe equivalent of an oral partition, the proceedings of tbe probate court may be examined in connection with such conduct of the parties as evidence of such oral partition.
    [Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;>5.]
    5. Partition <&wkey;5 — Collateral Attack. -
    Where the interested parties had by recogni-' tion and- ratification of a defective partition made by the probate court established the equivalent of an oral partition, such proceedings of the probate court and actions of the parties are not, after nearly 50 years, subject to collateral attack.
    [Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;5.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge. ■
    Action by W. W. Adams and another against W. J. B. Adams. Judgment for the plaintiffs, and defendant appeals.
    Reversed and rendered.
    H. C. Howell, of Jasper, for appellant. Powell & Huffman, of Jasper, for appelleés.
   MIDDLEBROOK, J.

This was an action of trespass to try title to a tract of 587 acres of land, a part of the Stephen H. Everitt league in Jasper county, the original suit being filed by W. W. Adams as sole plaintiff against W. J. B. Adams, and- afterwards R. E. Seastrunk, under leave of the court, made himself coplaintiff with W. W. Adams. Under the amended pleadings W. W. Adams claimed a one-fourth undivided interest and R. E. Seastrunk an undivided one-fourth interest in the 587 acres of land originally sued for by W. W. Adams. The defense presented by W. J. B. Adams was a plea of not , guilty. The trial was before the court without a jury, and judgment was rendered in favor of the plaintiffs against the defendant for an undivided one-half of the 587 acres of land, and for all costs of suit, from which judgment proper appeal is perfected to this court

The material issues for determination by this court, as the case is presented, are: First, the validity and force of a partition of 1,644 acres of land between Adam Adams and the estate of S. S. Adams, deceased, made by commissioners appointed by the probate court of Jasper.county at-the December term, 1865, which commission made its report to the probate court of Jasper county on March 5, 1866; and, second, if said partition was not in all things a regular partition of said land, have the interested parties, since said partition, by their acts confirmed the partition of said land, in accordance with the report of the commissioners appointed by the court to partition the land?

There are a number of assignments of error by the appellant, but, as we understand the record in this case, all of the vital issues in the ease hinge on thé propositions above set forth.

It is agreed that the common source of title is Abel Adams. On May 2, 1857, Abel Adams conveyed the 1,644 acres of land to his two. sons, S. S. Adams and Adam Adams. S. S. Adams died some time in 1862 or 1863, and his estate was administered through the probate court of Jasper county, Tex., the inventory having been filed on the 29th day of December, 1863, in which inventory a one-half undivided interest in.the 1,644-acre tract is included. In December, 1865, partition proceedings. were ’ instituted in the probate court of Jasper county to divide the 1,644 acres of land between the estate of S. S. Adams, deceased, and Adam Adams, and W. H. Kyle, E. White, and J. B. Ro£ers .were appointed by the. court to partition said land. The record shows that the application for the partition was made'by W. F. Holloman and his wife, Sallie Hollomán. Sallie Holloman's first husband was' S.' S. Adams. ' At the March term of the probate court of Jasper county the commissioners appointed to partition and distribute said" land’made the following report to.the probate-court:

“Estate of S. S. Adams, Dee’d. G. W. Smyth, Administrator. Probate Court' Holding Session in and for Jasper County, Texas, March Term, A. D. 1866. To the Honorable Probate Court, Holding Session in and for Jasper County, Aforesaid:
“The undersigned commissioners duly appointed by your honorable court at, towit, the December term, A. D. 1865, to divide a certain tract of land between the estate of S. S. Adams and Adam Adams* a part owner, would most respectfully make the fallowing report, to wit: That 575 acres of said land as per plot No. 3, including all improvements, .shall belong to the estate of S. S. Adams, it being on the north
end of the lot sold by Abel Adams to S. S. Adams and Adam Adams, and 525 acres (lot No. 2,) together with lot Ño. 1,'containing 544 acres of land, more or less, shall belong to the said Adam Adams, and is considered a fair and equal division between the said estate of S. S. Adams, deceased, and the said Adam Adams, a part owner of said lands. W. W. Kyle.
“E. White.
“J. B. Rogers.
“Subscribed and sworn to before me this 5th day of March, 1866. M. C. Moulton, Notary Public J. C. Texas. [Seal.]”
Indorsed:
“Estate of S. S. Adams, Report of Partition Between Said Estate and Adam Adams, by Commissioners W. H. Kyle, E. White & J. B. Rogers. Filed March 20th, 1866, H. Good, Clk. Co. Ct. J. C.”
Also indorsed:
“The within report of commissioners for partition having been neglected, it is now ordered to be recorded in the minits of the court Feby. 22nd, A. D. 1869. Andw. F. Smyth, County Judge Jasper County.”
Also indorsed:
“Rcfiled this the 20th day of Dec., 1915, A. L. Mays, C. C. C. J. C.”

Which report, as is shown by the indorse-ments thereon, was not recorded in the minutes of the probate court of Jasper county, as the law at that time directed in such' matters.

It is to be noted that this report was refiled on the 26th day of December, 1915, and the undisputed facts show that it has been recorded in the minutes of the probate court of Jasper county under an order which is termed a nunc pro tunc order of the probate court, secured by counsel for appellant during vacation, without any notice to the adverse parties, and after this suit was filed. We do not think that this late filing and rec-ordation of the report added any legal force to. the action theretofore had in the probate court of Jasper county, Tex., and deem it unnecessary to comment further upon that particular issue.

In 1857 S. S. Adams took charge of and : made improvements upon a part of the original 1,644-acre tract of land, having built negro houses^ and opened up a farm upon a part of the land. W. F. Holloman and1 his wife, Sallie Holloman (née Mrs. S. S. Adams), after they married, lived upon and cultivated that part of the land theretofore improved by S. S.. Adams, according to the testimony, from six to ten years.

In 1866 Wm. M. Neyland was appointed administrator de bonus non of the estate of S. S. Adams, deceased, and on the 22d day of June, 1866, inventory and appraisement was filed in the probate court of Jasper county by said administrator of said S. S. Adams’ estate, and this inventory and appraisement includes the 375 acres of land set apart and distributed to the estate of S. S. Adams, deceased, i. e., Sallie Holloman and W. F. Holloman, which tract of land is appraised at $1,000. The probate court also entered an order setting apart the homestead for the surviving widow and children of S. S. Adams, deceased, consisting of 200 acres of land, including the farm of the deceased, and also allowed $400 for the'support of . the minor children of said deceased, and giving the widow and children the use and benefit of the exempt property. At the March term, 1867, of the probate court of Jasper county an order was entered authorizing the said administrator of the S. S. Adams’ estate to sell the property belonging to the estate, both real and personal, on a credit of 12 months, for the purpose of paying the debts of said estate, and under said order the administrator, among other things, sold 375 acres of the original 575 acres set apart to S. S. Adams to one M. Middleton, at 80 cents per acre, for $500,' according .to his report to the probate court, which was approved and decree entered accordingly on the 27th day of May, 1867.

On the T7th day of November, 1875, W. F. •Holloman and his wife, S. E. Holloman (formerly Mrs. S. S. Adams), conveyed by proper deed the 200 acres which was set aside as the homestead to A. H. Alley for $1,-000 in gold, $500 of which was in cash, and the remainder in gold, vendor’s lien notes. This deed was filed for record in the deed records of Jasper county on February 8, 1876.

On the 11th day of November, 1878, W. W. Adams, the original plaintiff in this case, conveyed by proper deed all of his right, title, and interest in and to the 200 acres of land to A. H. Alley for the sum of $398.

There are numerous conveyances introduced in evidence in this case showing conclusively that all of the parties originally interested in the 1,644 acres of land had recognized the partition of the 1,644 acres of land as made in the report of Kyle, White,- and Rogers on the 5th day of March, 1866, and these conveyances are so numerous that we deem it unnecessary to set. them out in this statement; there being no dispute or contention as to the actions of the parties to the transactions.

On January 22, 1866, a deed was made by Adam Adams to W. J. B. Adams purporting to convey an undivided one-half interest in a tract of 1,800 acres of the Everett league, and on the 12th day of February, 1868, a deed was made by Adam Adams to W. J. B. Adams for an undivided one-half of the 1,644-acre tract of land conveyed to Adam Adams and Samuel S. Adams by Abel Adams. The undisputed evidence shows that at the time these conveyances were made Adam Adams was in an insolvent condition, on the verge of bankruptcy, and that these deeds were made in order to try to save something for Adam Adams in the winding up of his affairs in bankruptcy. The undisputed evidence also shows that no consideration whatever was paid by W. J. B. Adams tb Adam Adams on these conveyances, and W. J. B. Adams disclaims- any title whatever to any of the lands conveyed by those deeds; in short, they were accommodation matters, right or wrong, between two kinsmen, and, we think, have no bearing whatever as to a proper disposition of this case. See Hudson v. Jurnigan, 39 Tex. 585.

Many of the conveyances heretofore spoken of, but not set out herein, which we think show conclusively that the interested parties to this suit acquiesced in and acted upon the report of the commissioners of the probate court of Jasper county, Tex., dividing the land in controversy between Adam Adams and the estate of S. S. Adams, deceased, refer back to the partition and distribution of the 1,644 acres of land to the estate of S. S. Adams, deceased, and Adam Adams,' showing conclusively that said partition was known, recognized, and acted upon by the Adams, the Hollomans, and the later grantees and grantors of portions of the 1,644-acre tract of land..

On the 11th day of May, 1900, Adam Adams conveyed to W. J. B. Adams the “544 acres, more or less, the same being a part of the Stephen H. Everett league situated in the county of Jasper and state of Texas; said tract being the same that was set apart to Abel Adams on the 25th day of February, 1856, in the partition of a tract of 3,288 acres of said land between the said Abel Adams and the estate of Stephen H. Everett, deceased, and the same that was set and the same that was set apart to me, the said Adam Adams, on the 5th day of March, 1866, in the partition of a tract of 1,644 - of said league between myself, the said Adam Adams and the estate of Samuel S. Adams, deceased,” then giving a description by metes and bounds of the 544-acre tract of land, which, is the tract of land in controversy in this suit. The consideration shown -in this deed- is “one dollar and other valuable considerations.” W. J. B. Adams, testifying on this point, said that he gave Adam Adams other property which was the same as money for this land, which testimony .is undisputed.

W. F. Seastrunk’s interest in the suit arises out of a power of attorney from W. W. Adams to him for a one-half undivided interest of W. W. Adams’- interest in the 544-acre tract of land; the consideration being Seastrunk’s recovering the land for him.

The report of the commissioners of partition partitioning the 1,644 acres of land between the estate of S. S. Adams, deceased, and the said Adam Adams was shown conclusively to have been in the possession ‘ of W. J. B. Adams’ father at his. death. . No one knows when it first went into his possession or how came it there. . W. J. B. Adams received it from his mother, who turned over to him all of the papers of her. deceased husband, and W. J. B. Adams did not know of the existence of the report of the commissioners among such papers until about the time he was considering a purchase of the 544 acres of land which is in controversy. The undisputed evidence shows that he went to his counsel before purchasing this land, and had an examination of the .title made, and it would seem that the discrepancy in the record of the report of the commissioners was detected by his counsel, and caused the search which resulted in the finding of the report of the commissioners copied herein among the papers of his father, which had come into his possession some 30 to 31 years ago. After having seen this report, his counsel advised him that it was safe to purchase the 544-aere tract of land, and, acting upon this advice, he purchased thé 544 acres.

It occurs to us that an unbiased view and consideration of the undisputed facts of this case could lead to but one intelligent conclusion, and that is that the parties to this suit recognized the partition made by the commissioners appointed by the probate court in 1865, acted upon it, and were satisfied with it until foreign blood got into the matter, and thus brought contention between the kinsmen. Therefore it is wholly unnecessary to determine the validity of the probate order.

Remembering that S. S. Adams took charge of a part of the 1,644 acres of land, sent his negroes upon it, made improvements, cleared lands, and so forth, as early as 1857, -considering again that the commissioners to partition said land made their report in March, 1866, in which they set aside to the estate of S. S. Adams, the very land upon which he made his improvements, to his once widow, then Mrs. Holloman, and his heirs, in forcible terms tell us that the commissioners, in partitioning said land, took into consideration the' rights of -S. S. Adams in getting the land that contained his improvements. It is not a violent presumption to presume that, when S. S. Adams took charge of a part of the land, and went to clearing a farm, he would selefct the best part of the 1,644-acre tract of land, and there is evidence to support the view that much of the other two tracts was poor land, one tract of it was timbered, but at that time timber was practically worthless, and the reasonable presumption is that the commissioners who partitioned the land took into consideration the value of the 587-acre tract which they set aside to the estate of S. S. Adams, deceased at the time he took charge of it, as compared with the value of the other two tracts which they set aside to Adam Adams.

Again, it occurs to us that but one conclusion could be derived from.the acts of Sallie Holloman, née Sallie Adams, and her husband, from the time they moved onto the 587-acre tract of land until they finally sold it, receiving therefor $1,000 in gold, and her son, plaintiff in this case, W. W. Adams, receiving about $400 for his interest in the residue of the 587-acre tract and of the probate court in ordering the sale of the remainder of the 587-acre tract, to wit, 387 acres, together with other property, and that is that S. S. Adams' and his heirs fully recognized and acquiesced in the partition of the lands as made by the commissioners, and filed March 15, 1866. If they did so, and surely they did, when they sold the remainder of the 587-acre tract, by. their own conveyances, there is no question but what the remaining two tracts, as set aside by the commissioners, belonged to Adam Adams, or to his assigns, because, if a party or parties continuously recognize and acquiesce in the terms and conditions of a partition of lands among themselves, they will not be heard to .complain of some omission by the courts in the distribution of such estate, and especially is this true when so long a period of time has elapsed since such partition. It is to be noted that nearly 50 years has elapsed since the partition of the land by the commission, and, as has .been stated already, many deeds have been made, and some deeds by all parties concerned, which show that recognition was given to such partition. Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735; Cannon v. Hemphill, 7 Tex. 202; Bartlett v. Cocke, 15 Tex. 479; George v. Thomas, 16 Tex. 89, 67 Am. Dec. 612; Grassmeyer v. Beeson, 18 Tex. 764, 70 Am. Dec. 309; Millican v. Millican, 24 Tex. 439; Hudson v. Jurnigan, 39 Tex. 579; Kleinecke v. Woodward, 42 Tex. 311; Vogelsang v. Dougherty, 46 Tex. 472; Glasscock v. Hughes, 55 Tex. 461; Brackenridge v. Howth, 64 Tex. 192; Delk v. Punchard, 64 Tex. 364; Mitchell v. Allen, 69 Tex. 70, 6 S. W. 745; Wardlaw v. Miller, 69 Tex. 395, 6 S. W. 292; Mitchner v. Holmes, 117 Mo. 185, 22 S. W. 1070; Loring v. Groomer, 110 Mo. 632, 19 S. W. 950. See, also, Baker v. Coe, 20 Tex. 430; Dancy v. Stricklinge, 15 Tex. 557, 65 Am. Dec. 179; Soye v. McCallis-ter, 18 Tex. 100, 67 Am. Dec. 689; Burdett v. Silsbee, 15 Tex. 604.

Again, we think, under-the undisputed facts of this case, the- actions of the parties' clearly show that the partition was and has been recognized, ratified, and acquiesced in by them for a period of nearly 50 years, and, this being true, such conduct upon their part establishes a parol partition of the land, whether the partition as made by the commissioners, Kyle, White, and Rogers, was in all things legal or not, and, such being true, the proceedings of the probate court may be looked to in connection with such conduct of the parties as evidence of such parol partition or that which is, equivalent thereto, and that such proceedings and actions of the parties are not now subject to collateral attack. Evans v. Martin, 6 Tex. Civ. App. 331, 25 S. W. 688; Wardlaw v. Miller, 69 Tex. 395, 6 S. W. 292; Millican v. Millican, 24 Tex. 440; Brackenridge v. Howth, 64 Tex. 190; Delk v. Punchard, 64 Tex. 363; Pearce v. Jackson, 84 Tex. 515, 19 S. W. 690.

There is an assignment of error to the effect that, if the partition of the land, as made by the Commissioners, Kyle, White, and Rogers, in 1866, is n'ot a valid partition, then no partition of the land was ever made, and that therefore the whole tract of land is being held by all parties as tenants in common, under title emanating from and under the estate of S. S. Adams', deceased, and Adam Adams, and that the probate court having heretofore, in 1864, set ’ apart to the family of S. S. Adams, deceased, a tract of 200 acres of land as a homestead, and in 1867 having ordered a sale of the other 375 acres of the 575-acre tract for the benefit of said estate, and afterwards the 200-acre tract having been sold by the widow and her son, W. W. Adams, they having appropriated to 'themselves the consideration therefor, that neither W. W. Adams nor the said R. F. Seastrunk, who claims under the said Adams, can maintain a suit for recovery of any alleged deficiency in the share or interest in said land represented by the 575 acres that has been received and appropriated' by said estate and said W. W. Adams, as the heir of said estate, unless in suit for division and partition of said 1,644 acres of land brought .¿gainst each and all of tne'part owners thereof, and in which suit the'rights and interests of each and all of such part owners shall be litigated, adjusted, and settled, and involving a surrendering and restoration by plaintiffs for the benefit of other estate, to be partitioned of said 575 acres or the value thereof that has been received and appropriated by the estate of S. S. Adams, deceased, and said W. W. Adams, and therefore the-court erred in rendering judgment for the plaintiffs. Appellant cites Pearce v. Jackson, 84 Tex. 515, 19 S. W. 690; McKey v. Welch, 22 Tex. 396; Trammell v. McDade, 29 Tex. 364; Holloway v. McIlhenny Co., 77 Tex. 659, 14 S. W. 240.

Under our view and disposition oí the ease, it is not necessary to pass upon this assignment, nor have we read the authorities cited by appellant.

There are some additional assignments, but in the final the assignments ail go to the two main propositions, as set out in the beginning of the statement of this case, and under our view of the case it is unnecessary to pass upon them singularly, and, as has been hereinbefore indicated, we think the undisputed facts of this case show conclusively that judgment should have been rendered in favor of the defendant, W. J. B. Adams, and the facts being full, and, so far as we can see, all that could be introduced •under the pleadings of the parties, we think the ease should be disposed of in this court, and it is so ordered.

The judgment of the trial court is therefore reversed, and judgment here rendered in favor of the defendant, W. J. B. Adams, for the land in controversy, and that the plaintiffs take nothing by this suit, and that all costs be charged to the plaintiffs.

Reversed and rendered.

On Motion for Rehearing.

In appellees’ motion for rehearing it is brought to our mind that inadvertently we have confused the different tracts of land in the original opinion in this case, and, such being the case, it is necessary to correct that part of the opinion.

Originally there was a 1,644-acre tract of land, and it was divided into three different lots or parcels, numbered 1, 2, and 3. Lot No. 1 is the lot in controversy, and was said to contain 544 acres. Lot No. 3 contained 575 acres, and lot No. 3 was’ the parcel of land upon which S. S. Adams settled, and out of which afterwards was apportioned by the probate court the 200-acre homestead, and the remaining 375 acres were sold to pay the debts of S. S. Adams, and, as stated in the original opinion, Mrs. W. F. Holloman, née Mrs. S. S. Adams, and her son, conveyed the 200-acre homestead. A survey of lot No. 1, originany stated to contain 544 acres, showed that it contained, in reality, 587 acres. In the original opinion the writer, speaks of this tract being the original homestead tract of 587 acres, when he meant to have spoken of the 575-acre tract as the homestead tract of S. S. Adams, and in the opinion he states that after the homestead of 200 acres was set aside to Mrs. S. S. Adams the remaining 387 acres were sold to pay the debts of S. S. Adams, deceased.

The opinion should have read, where it refers to that tract of land, 575 acres, and not 587 acres, and where it says 387 acres were sold, it should say 375 acres were sold, etc. So that, wherever the expression in said opinion referring to the tract of land in litigation as any other than the original 544-acre tract, which was afterwards found to contain 587 acres, and wherein it refers to the original tract set aside to S. S. Adams, other than as the 575-acre tract, and wherein it refers to the remainder of the homestead tract being sold being 387 acres, is corrected here so as to read, the remaining part of the 575-acre tract, to wit 375 acres, after taking out the 200-acre homestead, was sold to pay the debts of S. S. Adams, deceased,

There was never any confusion as to the disposition of the matter, it being simply a clerical error, by the terms of which the writer of the opinion described the land in controversy as a tract containing a certain number of acres, when in truth and in fact that was not the tract by the, number of acres in litigation.

With this correction and explanation, the motion for rehearing is overruled.
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author: DUNKLIN, J.

text:
    WOOTEN et al. v. ODELL.
    (No. 8670.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 6, 1917.)
    1. Execution <&wkey;172(l) — Injunction —Return to Other Court — Authority oe Judge.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, providing that no district judge may grant injunction returnable to any other court, with an exception in case of injunction by a nonresident judge to stay execution, on proof that it is impracticable for applicant to reach resident judge and procure timely action, affidavit attached to petition to enjoin sale of certain realty under an execution, reciting that resident judge was inaccessible, and that plaintiff had been unable to locate him, and that property would be sold unless injunction immediately issue, was prima facie sufficient to authorize nonresident judge, on hearing, to order issuance of writ.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-521; Dec. Dig. &wkey;172(l)J
    2. Execution <&wkey;172(4) — Injunction—Petition.
    Allegations in petition to enjoin sale of realty under execution that statutory notice of levy and proposed sale had not been given, so that plaintiff could make no arrangements to bid in the property and avoid a sacrifice, filed on day set for sale, and that plaintiff first learned of the proposed sale late in the afternoon of day preceding sale, were good as against a general demurrer.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 525-532; Dec. Dig. &wkey;172(4).]
    3. Costs <&wkey;49 — Trial Court — Pleadings.
    Where petition to enjoin sale of realty under execution presented a good cause of action, at least as against a general demurrer, the costs-of the trial court should be adjudged, on appeal, against defendants in that court.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 211-215, 217; Dec. Dig. &wkey;49.]
    4. Execution <&wkey;172(l) — Injunction—Scope op Order.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, authorizing nonresident district judge to issue injunction to stay execution when resident judge is not accessible, order of nonresident district judge, making injunction issued by him effective until modified or vacated by further order of his court, was erroneous.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-521; Dec. Dig. &wkey;172(l).]
    5. Costs <&wkey;230 — Ground for Appeal — Costs on Appeal.
    Where erroneous order of nonresident district judge, continuing .injunction against execution until modified or vacated by further order of his court, justified prosecution of appeal, costs on appeal would be adjudged against ap-pellee^
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 869-876; Dee. Dig. &wkey;230.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge. •
    Suit for injunction by D. W. Odell against Mrs. H. S. Wooten and another. From an order granting a temporary writ of injunction, defendants appeal.
    Order reversed in part, and suit dismissed.
    Robt. G. Johnson and Wade & Smith, all of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellee.
   DUNKLIN, J.

D. W. Odell instituted this suit against Mrs. H. S. Wooten and Nace Mann to enjoin the sale of certain real estate under an execution issued on a judgment in favor of Mrs. Wooten against Odell; the execution having been levied by Mann as sheriff of Tarrant county. The ground for the injunction alleged in the petition was that the statutory notice to Odell of the levy of such execution and the proposed sale thereunder had not been given, in consequence of which plaintiff had made no arrangement to have the property bid in at such sale as he would have done if such notice had been given, and in the absence of such efforts on his part the property would be sold at a sacrifice. The petition was filed on November 7, 1916, the day set for the sale of the property under the execution, and plaintiff alleged that he had first learned of the proposed sale late in the afternoon of the preceding day. The petition contained the prayer for the issuance of a temporary writ of injunction, which was granted by the judge of the district court of the Seventeenth judicial district, while the suit was filed in the district court of the'Sixty-Seventh judicial district. The attorney for plaintiff made affidavit that the judge of the Sixty-Seventh judicial district was inaccessible, that he and plaintiff, had been unable to locate him, and that the property would be sold unless injunction should issue immediately. By reason of the facts so stated in the affidavit the petition for a temporary writ was presented. to the judge of the Seventeenth district, who granted the temporary writ, and in obedience to- it the sale did not take place. The fiat of the judge granting the writ directed that it should be made returnable to the district court of the Sixty-Seventh judicial district, 'but further provided that the injunction should be in effect until the further1 order of-the Seventeenth .district court. The defendants have prosecuted this appeal from the order granting the temporary writ.

Appellants insist that the judge who granted the writ was not authorized to do so 'by reason of the fact that the suit was not filed in his court, and further that the petition lacked the necessary definiteness and clearness to entitle the plaintiff to the relief prayed for. The sale having been restrained, the property could not have been sold earlier than the first Tuesday of the following month, and it is apparent that the only purpose of the suit was to restrain the sale of the property on the day it had been advertised to be sold, and that purpose was accomplished. So that the questions presented by appellant would be moot questions only, except in so far as they involve the taxation of costs of suit and the validity of the order that the writ should continue in force until otherwise ordered by the judge who granted it.

By article 4643, Vernon’s Sayles’ Texas Civil Statutes, it is provided that no district judge shall have the power to grant any writ of injunction returnable to any other court than his own, except in certain instances and under certain conditions. But it is expressly provided, that those restrictions shall not “apply to the granting of writs of injunction by nonresident judge to stay execution * ⅜ ⅜ where proof is made to the satisfaction of such nonresident judge that it is impracticable for the applicant to reach the resident judge and procure his action in time to effectuate the purpose of the application.” It is further provided by that article that, whenever application is made to a nonresident judge for a writ of injunction, the party making such application, or his attorney, shall make and file with the application, as a part thereof, or annex thereto, a certificate setting out fully the facts showing that the resident judge is inaccessible, and the efforts made by the applicants to reach and communicate with him, and the result of such efforts, and that, unless it appears from the affidavit that the applicant, has made a fair and- reasonable effort to procure the action of the resident judge upon the application, no nonresident judge shall have the power to hear the application.

We are of the opinion that the affidavit of plaintiff’s counsel, which was attaehea to the petition, with respect to the efforts made by both himself and plaintiff, was pri-ma- facie sufficient to authorize the judge of the Seventeenth district to hear and determine it and to order the issuance of the writ. We are of the opinion,- further, that the petition for injunction presented a good cause of action for the relief prayed for, at least as against a general demurrer, and that by reason thereof the costs of the trial court should be here adjudged against the defendants in that court, who aré appellants here. But we are.of-the opinion,-,further, that the order of tlie judge who granted the writ, making the injunction effective until modified or vacated by the further order of the judge of the Seventeenth district court, was erroneous, and the same is reversed, that such order justified the prosecution of this appeal, and that the costs of the appeal should be adjudged against appellee, D. W. Odell.

As shown already, the sole purpose of the suit has been accomplished, thus obviating any necessity for its remand for further proceedings. Accordingly the suit will be dismissed, and the costs will be adjudged as above indicated.
      <&wkey;For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: BROOKE, J.

text:
    VILLAGE MILLS CO. v. HOUSTON OIL CO. OF TEXAS.
    (No. 171.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 10, 1916.
    Rehearing Denied Dec. 7, 1916.)
    Abatement and Revival <&wkey;16 — Pendency oe OTHER Action — Identity of Issues.
    Where one party had previously sued the other to determine title to certain lands, and judgment had been rendered which was appealed from, and pending appeal the other party entered upon the lands to cut timber therefrom, the other claimant was not entitled to injunction to restrain cutting such timber; the court having no jurisdiction in view of submission of the question of title in the prior case.
    [Ed. Note. — Por other eases, see Abatement and Revival, Cent. Dig. §§ 72, 118-122; Dec. Dig. &wkey;16.]
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Suit for injunction by the Houston Oil Company of Texas against the Village Mills Company. Prom an order granting a writ on ex parte hearing without notice, the defendant appeals.
    Reversed, and motion to dissolve the injunction sustained.
    See, also, 186 S. W. 785.
    W. D. Gordon, H. G. Russell, and Thos. J. Baten, all of Beaumont, for appellant. Parker & Kennerly, of Houston, for appellee.
   BROOKE, J.

The preliminary statement made by the appellant is a fair and impartial statement of the nature and result of the ease, and we here adopt the same, as follows:

“This action was instituted by the Houston Oil Company, appellee, in the district court of Hardin county, for the Seventy-Pifth judicial district, seeking a writ of injunction pendente lite against the Village Mills Company, appellant. The object of the suit was to enjoin the appellant from holding possession of, cutting, or removing, timber from a certain league of land in Hardin county, known as the D. C. Montgomery League, during the pendency of a certain suit originating in the district court of Hardin county, Tex., for the Ninth judicial district, as cause No. 2570, styled Houston Oil Company of Texas et al. v. Village Mills Company, and involving the title and possession to said league of land, as between this appellee and appellant. This last-named suit is now pending in this honorable' court on appeal, as cause No. 42, Village Mills Company, Appellant, v. Houston Oil Company of Texas, Appellee. The lower court in vacation on an ex parte hearing without notice granted the writ of injunction as prayed for upon the showing made by the petition, without proof, and from such action this appeal was taken.
“In the petition upon which this writ was granted, appellee alleged that it was in good faith asserting its title to s.aid league of land under title and color of title from the sovereignty of the soil, and, while so claiming, had been in actual possession thereof for more than 10 years, paying all taxes thereon as they accrued ; that since the 6th day of June, 1906, it has held actual and exclusive possession of said land through its tenant, H. J. Coekerham.
“It is further alleged therein that early in the year 1914, the Village Mills Company entered upon said league and began to cut and remove timber therefrom, which it agreed to stop upon the Houston Oil Company bringing suit for the title and possession of such land, and that ‘ thereafter the Houston Cil Company duly filed suit in the district court of Hardin county for the Seventy-Fifth judicial district, same being suit No. 2570, styled Houston Oil Company v. Village Mills Company, the petition being in the ordinary form of trespass to try title, plaintiff (appellee) claiming to hold the land in fee simple under title and color of title from the sovereignty of the soil, and further pleading the three, five, and .ten years’ statute of limitations; that the defendant (appellant) appeared and filed answer, and upon trial judgment was rendered for plaintiff (appellee), for the title and possession of said league, as well as for damages for all timber cut, whereupon the Village Mills Company appealed said cause to this honorable court,- where it is now pending, ■as aforesaid; that -the Village Mills Company is now threatening to go again upon said league of land and cut and remove merchantable timber therefrom, and will do so in a few days unless prevented by injunction.
“The petition closes with a prayer for writ of injunction to prohibit the Village Mills Company from cutting and removing timber from said league, as well as from trespassing thereon during the pendency of said suit originating in the district court of Hardin county for the Seventy-Fifth judicial district, in cause No. 2570, as aforesaid.
“Attached to the foregoing petition is the affidavit of Oswald S. Parker, appellee’s attorney of record, to its correctness, except wherein the allegations were made upon information and belief, as well as the allegations of possession by H. J. Coekerham, all of which affiant states he believes to be true.
. “The records of this honorable court, as well as of the lower court) show that said cause No. 2570, Houston Oil Company of Texas et al. v. Village Mills Company, was instituted by the Houston Oil Company in the district court of Hardin county for the Ninth judicial district, and not in the lower court. Such records further show that the Houston Oil Company instituted such action, seeking to recover the possession of said league of land from the Village Mills Company, whom they alleged had ousted1 them therefrom and were withholding such possession thereof.”

The contention in this case is twofold: First, that the lower court acted without jurisdiction in attempting to grant the relief prayed for; and, second, that the action of the court in granting relief was an abuse of judicial discretion. The first proposition is:

“The lower court acted without jurisdiction in attempting to grant the relief sought herein, because, the controversy over the title and possession of the league of land in question having been submitted by the parties hereto to a court of competent jurisdiction, to wit, the district court of Hardin county for the Ninth judicial district, that court had exclusive jurisdiction over the entire controversy, subject only to the jurisdiction of the Court of Civil Appeals for the Ninth ‘ Supreme Judicial District, to which said case was appealed. And the lower court was without authority to interfere in such controversy by granting a writ of injunction under the guise of protecting the subject-matter pending the aforesaid litigation or otherwise.”

Without undertaking to thoroughly discuss the proposition, we deem it sufficient to say that, in our opinion, this first contention of appellant is correct; that is, wé are of opinion that the lower court acted without jurisdiction in attempting to grant the relief prayed for. In the case of Miller & Vidor Lumber Company v. Williamson et al., 164 S. W. 441, the court says:

“By its first assignment of error appellant complains that the court erred in overruling its motion for new trial on the third ground thereof, which is that: ‘The court erred in sustaining defendants’ motion to dismiss and in dismissing this cause, because it appeared that the ■defendants in this suit are the plaintiffs in the ■suit pending in Jasper county, and that the plaintiff has brought but one suit against said defendants for the property involved herein. Under this assignment appellant contends that the pendency of two suits between the same parties and relating to the same subject-matter is not sufiieient grounds for abatement of one unless the plaintiff is the same in each suit, and in position to control both suits, and to discontinue or prosecute both suits as he sees fit, and cites several cases in support of this contention, the first of which is Langham v. Thomason, 5 Tex. 127. This case is not in point. It is true that the court makes the broad statement that the plea in abatement cannot be maintained unless the plaintiff be the same in both suits, and under the facts of that •case this statement is correct. The facts were that the former action pleadéd in abatement was an action brought in the name of the wife alone, without the right or authority thus to sue, and ■one which she had no right to maintain. Aft-erwards the husband, joined by his wife, brought a suit on the same cause of action, and to this ■action the pendency of the first suit was pleaded in bar. The court correctly held that the first ■suit did -not dispense with the necessity of the second, and was not therefore such an action as could be effectually pleaded in abatement of ■a subsequent suit by a party entitled to maintain the action. It is clear, we think, that had the court found that the first suit dispensed with the necessity of- bringing the second, a different ■ conclusion would have been reached.
“Another case cited is Simmang v. Braunagel, 27 S. W. 1032. We do not think this -case sustains appellant’s contention, as the subject-matter of the suits was not the same, although the parties were the same. The syllabus reflects the 'opinion, and is as follows: ‘In an -action on a note, by an indorsee thereof, it is no defense that, before the institution of the suit, defendant commenced an action against plaintiff and.the payee to cancel the note, on .account of failure of the consideration thereof, ■and that said action is still pending,’ In Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524, exceptions to a plea in abatement because of the pendency of another suit, in which the parties plaintiff and defendant .were reversed, were •sustained; but the ground of the court’s action •does not clearly appear from the opinion. Olschewske v. King, 43 Tex. Civ. App. 474, 96 S. W. 665, was an action brought by plaintiff to rescind a- contract of sale of land, and the pending suit pleaded in abatement was a suit of trespass to try title to the same land. The court very correctly held, we think, that the penden-cy of the former suit did not estop plaintiff from prosecuting his suit for rescission. Manifestly the causes of action were not the same. In Mutual Life Insurance Company v. Hargus, 99 S. W. 580, a general agent of an insurance company brought suit on a note given by the insured for the first annual premium for a policy of insurance, and afterwards the insured brought an action for cancellation of the policy and the note, based on the fraudulent representations of the agent soliciting the insurance; and it was held that the pendency of the suit filed first was not a bar to the second. The court states no reasons for its holding, but we think it clear that it was because the parties and the causes of action were not identical. To the same general effect are Garza v. Piano Company [59 Tex. Civ. App. 590] 126 S. W. 906, and Milling Company v. Gin Co., 132 S. W. 856, which are the only other Texas cases cited by the appellant, and which, in our opinion, do not sustain its contention. But, on the other hand, it has been held that there is a rule of law, grmomg out of a manifest propriety, if not necessity, that the court which first acquires jurisdiction over a controversy should maintain it undisturbed by the interference of any other court of co-ordinate jurisdiction. (Italics ours.) Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086; Tex. Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Nat. Bank of Goolsby, 12 Tex. Civ. App. 362, 35 S. W. 713; Burdett v. State, 9 Tex. 43. If this is a correct principle, we cannot recognize any exception ‘to it growing out of the fact that the plaintiffs in one suit are defendants in the other, provided, of course, that the parties and the subject-matter of both suits are the same; and in this case the court has found that the parties are the same, and in legal contemplation the suits are upon the same cause of action, although there are some minor discrepancies in the description of the land as given in the respective petitions of the parties.”

Continuing, the court says:

“To hold that because the plaintiffs in both suits were not the same the plea in abatement cannot be sustained might result in this anomaly: Suppose both suits should be tried in the respective courts in which they are brought, and the jury upon conflicting evidence should return a verdict for the plaintiff in each court, and a judgment rendered ■ in accordance therewith should be entered; that thereafter the defendant in each suit should appeal, and the appellate court should hold on each appeal’ that as the verdict was rendered on conflicting evidence, and as the law was properly applied by the court in its charge, it was not authorized to disturb the judgment. Here we would have a judgment of two courts of co-ordinate jurisdiction, both _ affirmed, one of which would be for the plaintiff in each suit; or, in other words, both parties to the suit would have recovered a judgment for the same land. Which party then would have the better title? Their difficulties would be no nearer a- solution than before the suits were begun. If the cases from the Courts of Civil Appeals cited by appellant and above referred to are not distinguishable from this case because of the differences pointed out above, then we hold that they are not supported by any decision of our Supreme Court, and we decline to follow them.”-

See, also, the following authorities in support of the proposition: Good v. Texas & Pac. Ry. Co. et al., 166 S. W. 670; Savage v. State, 138 S. W. 211 (writ of error denied); McGee v. Anderson et al., 146 S. W. 1198 (writ of error denied); Allen v. Thomson, 156 S. W. 304 ; 7 Ruling Case Law, 105, 106, subd, “Courts,” .11 .Cyc. 985, subd. “Priority and Effect”; Thos. Goggan & Bros. v. Morrison, 163 S. W. 121; Sparks v. Natl. Bank of Commerce, 168 S. W. 48 (writ of error denied) ; Brady v. Hancock, 17 Tex. 362; Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086 (writ of error denied).

Being of the .opinion that the court which issued the injunction was without jurisdiction, it would be useless, however interesting, to discuss the other questions raised by appellant. The writer, however, is of the opinion that both of the remaining issues raised by appellant are sound legal propositions, and should have been sustained.

Believing, as above stated, that the court which issued the injunction was without authority to do so, we reverse the case and sustain the motion to dissolve the injunction issued by the lower court in this cause; and it is so ordered.
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text:
    HOME BENEFIT ASS’N OF ANGELINA COUNTY v. JORDAN.
    (No. 125.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 2, 1916.
    Rehearing Denied Dec. 14, 1916.)
    1. Insueance (&wkey;>146(2) — Mutual Benefit Insurance — Contracts—Construction.
    Insurance contracts should be literally construed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 294; Dec. Dig. &wkey;146(2).J
    2. Appeal and Error <&wkey;1064(l) — Harmless Error — Instruction.
    In an action on a mutual benefit certificate in an association whose constitution required the secretary to notify all members by postal card of assessments and required payment within 15 days of call, where the secretary testified that he mailed the usual notice, and the beneficiary, who was the wife of insured, testified that the notice was never received, an instruction that the law would then presume that the notice reached its destination, but that the presumption could be overcome by evidence to the contrary, was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. &wkey;>1064 (1); Trial, Cent. Dig. § 553.]
    3. Insurance <&wkey;54^-MuTUAL Benefit Insurance — .Contracts—Construction.
    Where questionable language arises in the constitution and by-laws of an insurance association and one may be repugnant to another, courts will always construe the discrepancy to the benefit of the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 66; Dec. Dig. <&wkey;>54.]
    4. Insurance <&wkey;751(l). — Mutual Benefit Insurance — Contracts—Notice of Assessment-Construction — 1 ‘Notify. ’ ’
    Where the constitution of a mutual benefit association which levied assessments only upon death of a member required the secretary to notify by postal card all members liable, the word “notify” should be construed “to make known,” so that, where the insured failed to receive a postal card mailed by the secretary, notifying him of an assessment, such failure excused insured’s failure to pay the assessment, and his beneficiary could recover. Citing Words & Phrases, 4845.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1897; Dec. Dig. &wkey;>751(l).
    For other definitions, see Words and Phrases, First and Second Series, Notify.]
    5. Trial <&wkey;350,(4) — Special Issues.
    In an action on policy of mutual benefit association, whose secretary was required to notify by postal card all members liable to assessment, where the secretary testified that he mailed the card, and the beneficiary testified that it was never received, it was proper to submit the special issue whether the secretary did notify the insured by postal card.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. <&wkey;350(4).]
    6. Trial &wkey;>350(4) — Special Issues.
    In such case, it is proper also to submit the special issue whether insured received such a notice at any time before his death.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. ■§ 829; Dec. Dig. <&wkey;350(4).]
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    Action by Mrs: W. R. Jordan against the Home Benefit Association of Angelina County. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Denman & Thomas, of Lufkin, for appellant. W. J. Townsend, Jr., of Jacksonville, for appellee.
   MIDDLEBROOK, J.

This suit was brought by appellee against the appellant to recover $1,000, the maximum sum of an insurance certificate issued to W. R. Jordan by appellant, Home Benefit Association of Angelina County.

The insurance company is a mutual concern, in which the membership thereof began with $1 per member, and under its bylaws and constitution, at the death of any member, new assessment is made to meet the obligations of the company at the death of the next member. The association had, at the time of the death of Jordan, about 1,000 members. W. R. Jordan had removed from Angelina county, Tex., to Winsboro, La., where he died on the 23d day of March, 1915. George S. Kerr, another member of the benefit association, died on the 4th day of March, 1915.

Section 6 of the constitution and by-laws of the association, which was introduced in evidence, among other duties, enjoins upon the secretary the duty of notifying members of any assessments, in the following language:

“He shall keep the books of the society, make record of all bonds on'the minutes book, notify all members by postal card of assessments regularly made by the board of directors. * * *

¡Section 13 of the constitution and bylaws, among other things, provides:

“All assessments must be paid within fifteen days from the date of the call. Members failing to pay same within the time prescribed shall stand suspended, and will no longer be entitled to any of the benefits of the society.”

There is but little evidence in the case in dispute. The facts show that Jordan was a member of the association; that he died' on March 23, 1915; that his widow was entitled to recover, unless the rules governing the company had not been complied with. They show also that after he had left Texas, he and his wife received some two or three notices by postal card through the mail, of deaths of members of the association and had paid the dues, in accordance with the rules of the association; also that Mrs. W. R. Jordan had notified the secretary, Mene-fee, where to send the notices of death to reach them. Secretary Menefee testified that after the death of George S. Kerr, on March 1, 1915, on the 4th day of March, 1915, he mailed a postal card to each of the members of the association, notifying them of such death, and calling for their assessment; that he did not receive any response from W. R. Jordan, nor his wife, Mrs. W. R. Jordan, within the 15 days, as required by the by-laws and constitution, and that on the 20th day of March, in accordance with the by-laws and constitution prescribing his duties as such secretary, he forfeited the certificate of W. R. Jordan. As already stated, W. R. Jordan died three days later. The facts show also that W. R. Jordan had been suffering with tuberculosis for six months prior to his death. The facts show, also, that one or two other members of the association did not get any notice of the assessment upon Kerr’s death, and Secretary Menefee, upon cross-examination, admitted that he did not write out all of the notifications, and stated that his wife prepared some of them, he did not know how many, whether half, less than half, or more than half of them. He also testified that he had made mistakes in notification of members upon the death of a member, that he was not infallible, and that such mistake might have occurred. The facts show, also, that a few days after having mailed out the notices upon the death of Kerr, he wrote to the postmaster at Wins-boro, La., to know if he had sent such card of notification to W. R. Jordan at that office. He also testified that he had a specific recollection of mailing the card to W. R. Jordan, because there were only three or four out of state members, and that he could remember them on account of the locus of their citizenship. In his direct testimony, he testified that he sent the notice to W. R. Jordan to Winsboro, La., route No. 2. W. R. Jordan did not, and had not lived on route No. 2, as is shown by the facts of this case, and Menefee was called back to the witness stand and corrected his direct testimony, and said that he sent the card to the proper address on route No. 1 instead of route No. 2, as he had previously stated.

Mrs. Jordan testified that no such notice had ever been received by them, and that if such notice had been sent, they would have complied with the rules and regulations of the company and forwarded the assessment.

Briefly, this is a fair presentation of the' facts governing "the issues presented to this court. The case was submitted by the trial court on special issues. The first special issue is:

“Did the defendant, Home Benefit Association, notify the deceased, W. R. Jordan, by postal card, of the assessment No. 16 to pay the death claim of George C. Kerr?”

The jury answered this question, “No.”

The second special issue is:

“Did W. R. Jordan, or any one acting for him, receive such notice at any time before his death?”

This issue was answered, “No.”

Then the court charged the jury as follows:

“You are further charged that if a notice was mailed to W. R. Jordan, properly addressed, and with the required postage on the same, and deposited in the post office at Lufkin, Tex., it is presumed that the mail reached its destination and was delivered to the proper person, but such presumption may be overcome by evidence showing that the letter was not so received by the party to whom it was sent.”

A charge is also given on the burden of proof which it is unnecessary to here quote.

Appellant, Home Benefit Association, presented to the court its special charge No. 1, as follows:

“You are instructed that if you believe from the testimony in this case that the defendant, through its secretary, Joe Menefee, delivered to the post office at Lufkin, Tex., a postal card, like the one in evidence before you, properly stamped and addressed to Mr. W. R. Jordan, at Winsboro, La., on March 3, 1915, the said card being a call for assessment No. 16, you will return a verdict in favor of the defendant”

—which special charge was by the court refused. Timely bill of exception was reserved upon the court’s refusal to give the charge. Exception was also reserved to issue No. 2, submitted to the jury by the trial court, alleging such issue to be immaterial. Exception was also reserved to that part of the court’s charge which reads, “but such presumption may be overcome by evidence showing that the letter was not so received by the party to whom it was sent,” because said Clause of the court’s charge is erroneous, in that the constitution and by-laws of the association provide the manner and character of notice to be given, to wit, by notifying by postal card of the assessment.

So it is to be readily seen that the disposition of this case must be determined by what is meant in the by-laws and constitution of the association by the expression “notify all members by postal card of assessments,” and what the members of the association understood such expression in the constitution and by-laws to mean. The evidence is conclusive and undisputed that no other kind of notification had ever been given by the association; the members thereof had always acted theretofore upon such notice, and this was the sixteenth time such notification had been required since the organization of the company. If the language of the constitution and by-laws had been, “shall notify the members of the association by mailing to each of them a postal card notifying them of the death of a member, and no other notice shall be necessary,” and calling for the assessment, there would be no question as to whether mailing such notification would be all that would be required to give the members of the association notice, and failure to comply with such notice would, in fifteen days, under the constitution and by-laws of the • association, determine the standing of members in the organization, and at the end of the fifteen days after such mailing, members who did not respond with the proper assessment would stand suspended from any benefits of the association.

Numerous cases are cited by appellant as authority for mailing the postal card giving appellee notice of the death of Kerr being all that is required, but we will mention only two of them, which are among the strongest authorities cited to support such view.

In Rogers v. Moore, 100 Tex. 220, 97 S. W. 685, it is specifically decided by the Supreme Court that under article 2366, Revised Statutes, as amended by the act of 1903 (Laws 28th Leg. p. 104), requirement that the officer “shall give the defendant or his attorney written notice of such sale [on foreclosure of tax lien] either- in person or by mail,” is met by mailing the notice required to the defendant’s address, although it was not received by him. Under this statute immense property rights are affected, without knowledge of the same at an inadequate, price, and the decision is far-reaching as to property rights, yet we think it is a correct interpretation ‘of the law, and not unreasonably onerous. A man knows that he must pay taxes upon his property, or it will be sold for his taxes. Again, if a man’s property is sold for taxes at an unreasonable price, under the statute he has the right of redemption by paying-to the bidder double the amount of his bid, and thereby retaining his property. So the more inadequate the price paid, the cheaper the redemption, as is so tersely stated in the opinion by Justice Williams.

In New York Life Ins. Co. v. Scott, 23 Tex. Civ. App. 541, 57 S. W. 677, Justice Hunter, writing the opinion, specifically holds that where a life policy stipulated forfeiture by nonpayment of premiums. for 30 days, a premium due in June - not being paid after notice required by.law, as a condition to forfeiture, and where a premium due in September thereafter was received and placed to the insured’s credit by the company’s agent, who notified him that the policy had lapsed from nonpayment of the June premium,, and its payment and a health certificate were necessary to. reinstatement; and no such health certificate was sent, that the forfeiture by such nonpayment was not waived by the receipt of premiums. .The .notice-in this case is provided for both by statute of New York and by rules of the company. This was an ordinary life certificate, and the premiums became due thereon at fixed times, and therefore from the inception of the contract the insured knew that his obligation would fall due at a given time each year, even without any notice, and, we think, cannot be considered in the same class as the instant case, where a purse of money is put up by a number of individuals and no assessments are ever made, nor become due by the members of such association, until some member thereof dies. Equity and justice among the parties would demand that the members have notification, and an opportunity to comply with the assessment demand.

It is insisted by appellant, and we think correctly so, that insurance contracts should be construed as other contracts; 'in short, that they should be literally construed. This rule of law is tersely upheld by Justice Brown in Brown v. Palatine Ins. Co., 89 Tex 594, 35 S. W. 1060, wherein it is said:

“In the construction of policies of insurance, the same rules of law'will be applied as in the construction of contracts made between individuals under like conditions (italics ours), and no greater strictness is required in the performance of the one than the other.”

The expression used by Justice Brown, “under like conditions” is by no means insignificant. Again, suppose we literally construe the contract, or rather the constitution and by-laws, which are directory only of the manner of notification of the members of death and assessment. The exact verbiage is “notify by postal card.”

In Words and Phrases, pp. 4845-4846, the word “notify” is dealt with as defined by a number of the appellate and supreme jurisdictions of our land, construing the word literally, and in the case of Castner v. Farmers’ Mutual Fire Insurance Company, 50 Mich. 273, 15 N. W. 452, the court held that the word “notify” in a charter of a mutual insurance company, providing that the members shall be notified of assessments by circular or verbally, means “inform.” The mere mailing óf a notice to a member is not sufficient if the notice is not actually received.

Appellant places great stress on the acquiescence in the regulations of the association by appellee, in that she had theretofore received many of such notices through the mail, and that, therefore, by custom, she was bound by such method of notice. This presentation is not without merit, and is worthy of consideration, but would it not be as fair to say that, since appellee had received a number of such notices and had always complied with such notices, and the demand for the dues, therefore the association would be bound by the customary oft-repeated acts of the appellee in meeting the demands, and especially might serious consideration be given this when it is taken into .consideration-., that for six months-prior to the death of Kerr, Jordan had been suffering with tuberculosis, and of which he died, and of whose early death the appellee in this case was surely apprised. In this connection, it might not be amiss to notice a part of the charge of the court, wherein he charged the jury that if the notice was mailed by Mene-fee to Jordan at his proper address, it is presumed to reach him. On the other hand, might it not be said with equal force that if Jordan did not get such notice, the law would presume that Menefee did not mail it. But the charge as given by the court on this phase of the evidence could not have militated against the interests of the appellant.

Again, where questionable language arises in the constitution and by-laws of an insurance company or association and one may be repugnant to another, courts will always construe such discrepancy, or seeming discrepancy, to the benefit of the insured. Haywood v. Grand Lodge of Texas, K. P., 138 S. W. 1194.

We think, as is contended by appellant in his brief, that the ordinary and usual understanding of the meaning of the term “notify by postal card” is to mail a postal card, and., as we have heretofore said, if other language, in addition thereto had been used in the by-laws-, and constitution, making the manner of notification mandatory, instead of directory, appellant’s contention would have to be upheld, but we do not construe the language as used in the by-laws and constitution, wherein it says “notify by postal card,” and then in another section provides for the automatic suspension of the member failing to respond to such notification, even though it be conclusively shown that such notice was mailed, to require a forfeiture of the contract. Aside from the correct principle of law that .insurance policies and beneficiary certificates shall be liberally construed, and in case of ambiguity in the contract to be resolved in favor of the insured, we think in such a company or association as the one to which appellees’ husband belonged, where no monthly or annual stipulated amounts are provided of which the members may take notice, but, on the contrary, no assessment is made save at the death of one of the members of the association, that the constitution and by-laws of said association ought to provide actual notice to each member, and, failing to do so, in no unmistakable terms, that the language as used in the constitution and by-laws of the appellant should be construed to mean “to make known,” to bring to the knowledge of the party assessed; in short, to bring or place him in condition where he can, if he chooses to do so, comply with the conditions of the contract by paying the amount of the assessment against him. It opens too broad a field for wrongdoing on the one hand, and on the other hand restricts the rights and privileges to be derived from such a concern to too narrow scope. Suppose the secretary of such an association-, for mercenary reasons, should withhold such notification, and should go into court and swear that he mailed it. Suppose, again, that the United States mail in some way were destroyed, which does occur. .Suppose, again, that the card miscarried, and went to some other post office, and finally, after making a circuitous route, reaches the beneficiary too late, for compliance, which in so short a time as is mentioned in the constitution and bylaws of the association under consideration is not uncommon. Suppose, again, as the facts show might have been done in the instant case, the secretary mailed the card, and he unwittingly but perfectly honestly, mailed it to the wrong post office, and the beneficiary never received it. Would justice and equity stand with folded hands and blinded eyes and give its sanction to the beneficiary of such certificate, by no fault of his own, being deprived of that which the husband and father has labored to provide for them, and into which fund had theretofore paid 15 assessments for the beneficiaries of other brethren, and that he might leave his loved ones so provided at his death? We think not.

So believing, we hold that the honorable trial court did not err in his special issues Nos. 1 and 2, as presented to the jury, and that the special charge No. 1, as requested by the appellant, was properly refused.

There are five assignments of error, as presented, but they all hinge on the issues of the case hereinbefore discussed, and what we have said is a disposition of the case as presented. The case is ably briefed by both appellant and appellee, and many authorities are cited, but we have quoted from and cited in this opinion only a few that go direct to the issue presented. Whatever interpretation our courts may, in the future, place upon the word “notify,” and whatever they may determine the clause “notify by postal card” to mean, we believe that under the facts of this case the jury has meted out justice, and .that the verdict of the jury should not be disturbed, and the cause is therefore affirmed.
      ^^sáFor other cás'es see samé topic' an'd KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    ROGERS et al. v. IVY et al.
    (No. 176.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 18, 1916.)
    1. Appeal and Eebor <&wkey;488(l) — Injunction. —Effect of Appeal.
    Where no order was entered below on dissolving a temporary restraining order suspending the judgment of the court during appeal, the injunction was not in force pending appeal, where a supersedeas bond in the ordinary form was filed.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2277; Dec. Dig. <&wkey;488(l); Injunction, Cent. Dig. § 442.]

      2. Appeal and Error <&wkey;781(4) — Dismissal-Extinguishment of Subject-Matter.
    On appeal from judgment dissolving a temporary restraining order and denying an injunction, where it appeared by appellees’ motion to dismiss and the supporting affidavits that the subject-matter of the suit had ceased to exist, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 8122; Dee. Dig. ⅞⅜=>781(4).]
    Appeal from District Court, Panola County ; W. C. Buford, Judge.
    Suit by Earl T. Rogers and others against H. B. Ivy and others. From judgment dissolving a temporary restraining order and denying injunction, plaintiffs appeal; defendants moving to dismiss.
    Motion to dismiss sustained. .
    W. G. Banks, of Carthage, for appellants. J. G. Woolworth, H. N. Nelson, J. R. Duran, and R. W. Priest, all of Carthage, for appel-lees.
   CONLEY, C. J.

Appellants filed suit in the district court of Panola county, Tex., on August 19, 1916, asking that a writ of injunction issue against H. B. Ivy, R. W. Terry, B. T. Crawford, and J. H. Spradley, county commissioners, George Harkrider, county judge, T. P. Christian, county clerk, and W. D. Hall, county treasurer, of Panola county, and asking that they be restrained from contracting for the expenditure and issuance of warrants and paying out $144,000 of funds belonging to said county.

The petition alleged, in substance, that the commissioners’ court of Panola county, Tex., had, on May 8, 1916, issued scrip against the permanent improvement fund, in the sum of $160,000, for the following purposes, to wit: $80,000 for courthouse purposes, $50,000 for jail repairs, and $30,000 for courthouse repairs; and further alleging that said warrants had been sold to one J. L. Arlitt for the sum of $144,000, and that said money had been paid into the county treasury of Panola county, Tex.; that said amount had been transferred to the road and bridge fund for the purpose of constructing roads and bridges; that said road and bridge fund was insolvent, and would be unable to repay said amount, and was already indebted in the sum of $175,000, which indebtedness was outstanding and bearing interest; that there was no special road tax in Panola county, and that taxable values of property within said county amounted only to. $5,000,000, and that, consequently, said fund would never be able to repay the indebtedness of $160,000; that petitioners were taxpaying citizens of Panola county Tex. By supplemental petition they alleged that a tax of 25 cents had been levied for the purpose of repaying said $160,000, and that petitioners, as taxpayers, would be damaged through the unlawful expenditure of said money, and asked for a temporary restraining order in the following language:

“Wherefore, premises considered, petitioners pray that this honorable court issue a temporary writ of injunction restraining said commissioners from expending said sum of $144,000, or any part thereof, and from creating any liabilities or contracts for the expenditure of said money, and from paying any items of indebtedness out of said sum of $144,000, and that the said T. P. Christian be restrained from issuing any warrants for the payment of any indebtedness out of said $144,000 which is chargeable to the road and bridge fund, and that the said W. D. Hill be restrained from paying any warrants or vouchers out of said $144,000, and that, upon a hearing hereof, this injunction be made permanent, and petitioners be granted such other and further relief as in law and equity they may justly be entitled to.”

A temporary restraining order was granted by the judge of the fourth judicial district, and the same was issued on August 18, 1916, and the application for injunction was set down for a hearing on August 25th. On that date the respondents, appeared and filed an answer, pleading to the jurisdiction of the court, setting up various exceptions and demurrers, alleging mainly that the amount had already been transferred to the road and bridge fund, and that the court was without power to restrain its expenditure for road and bridge purposes, and further pleaded a right or authority to expend said money by reason of an agreed judgment, which had theretofore been entered in said cause. Upon hearing said matter, the temporary restraining order- was dissolved, and injunction denied. Appellants filed a supersedeas bond in this cause, and appeal has been perfected to this court.

The supersedeas bond is in the ordinary form, though no order was entered below, in the dissolving of the temporary restraining order, suspending the judgment of the court during the appeal; consequently the injunction was not in force pending such appeal. Driving Club v. Ft. Worth Fair Association, 56 Tex. Civ. App. 162, 121 S. W. 213. Appel-lees have filed a motion to dismiss this appeal, on the grounds, among others, that the subject-matter of the suit has ceased to exist, which motion contains the following allegations, so far as affects that particular feature:

“Now come the appellees, by their attorneys, and move this court to dismiss the appeal herein for the following good and sufficient reasons, to wit: Because this is a suit to enjoin the commissioners’ court of Panola county from paying out and creating any debt payable out of the $144,000 which had theretofore been transferred to the second-class road and bridge fund, and that, before this suit had been filed, contracts had been made and bids advertised by said commissioners’ court with parties to build, make, improve, and construct such roads and bridges in Panola county in an amount sufficient to exhaust said money, and because the work has been performed by the contractors in conformity with the orders of the court, and the money paid for said work as contracted, and the subject-matter of this suit has ceased to exist, and there is now no question for this court to pass upon.”

In support of this motion, the following affidavits have been presented:

“On this the. 4th day of December, A. D. 1916, personally appeared before me, the undersigned authority, H. B. Ivy and R. W. Terry, two of the defendants in the above cause, and who, being by me duly sworn, say on their oath, each for himself,
“(1) That they are now no longer commissioners for Panola county, Texas; that their term of office expired on the 4th day of .December, 1916, and their successors were, on the 4th day of December, 1916, sworn in and duly qualified as commissioners in their place, and they now have no authority as commissioners for such county.
“(2) And affiants further say that the subject-matter of the litigation in this cause has ceased to exist; that all the acts sought to be enjoined in this cause have been performed; that the order of the district court in dissolving the temporary injunction in this case did not hold the temporary writ in force during the appeal in this case, and said temporary writ was not to be in force any longer than the hearing of said matter by the district court. * *
“(4) Affiants further say that contracts had been made as to the building and improving of the public roads and bridges in Panola county, Texas, before this suit was filed, and all contracts have been completed and settled for so far as the fund would settle. Therefore all the acts and things sought to be enjoined in this cause have long since been performed.
“[Signed] H. B. Ivy,
“R. W. Terry.”

This affidavit is duly sworn to.

W. D. Hill, the county treasurer, also files the following affidavit:

“Before me, the undersigned authority, on this day personally appeared W. D. Hill, who is known to me to be a reputable citizen of Panola county, Texas, and who, being by me duly sworn, deposes and says that he is the county treasurer of Panola county, and has been holding said official position for the past 18 years; that he was such county treasurer during the year, and as such official received from the sale of the issue of refunding warrants in the sum of ⅜160,000 the sum of $144,000, which said amount of money was by order of the commissioners’ court of Panola county transferred to the road and bridge (or second-class) fund; that there does not remain in his hands one cent of said amount which was realized, to wit, the sum of $144,000, from the sale of said warrants, but that all of said money has been paid out, and was paid out prior to the 4th day of December, 1916; that there is a deficiency in the road and bridge fund, and on the 2d day of December, A. D. 1916, as county treasurer, of Panola county, he registered against said fund a warrant issued in favor of N. A. Dawson for the sum of $9,142.10, the same being an ordinary warrant which was issued to said Dawson for-road work, and as final settlement of the work which he had done for Panola county; that the said H. B. Ivy paid to him, as such county treasurer, the sum of $192.51, which was placed to the second-class fund, at which time said fund was overdrawn, the said amount having been paid to me on the 4th day of December, 1916; that on the 2d day of December, 1916, there was transferred from the first-class to the second-class fund the sum of $4,500, and from the fourth-class to the second-class fund the sum of $2,075.18, from the fifth-class to the second-class fund the sum of $4,554.87, and after the transfer of the said items from the said funds on the 2d day of December, 1916, and after the said money went into the-second-class or road and bridge fund, the same was paid out, and still there is a deficiency of the road and bridge or second-class fund, and as heretofore stated against said fund is registered county warrants in the sum mentioned to N. A. Dawson, and the condition of this fund was such on the 4th day of December, 1916.
“Affiant further says that all of the said $144,-000, which was placed to the road and bridge fund, has been paid out upon warrants duly issued by the county clerk of Panola county, and that, in addition to all of that sum having been paid out, he has paid out in like manner the sum of $11,130.05, which, as stated above, was transferred to said road and bridge fund from the other funds, and that on the 4th day of December, 1916, the said account was overdrawn, and with the payment into the treasury of the amount by said Ivy, on said date, the said fund is still overdrawn, and was on said date so overdrawn.
“[Signed] W. D. Hill,
“County Treasurer Panola County, Texas.”

This affidavit is also duly sworn to.

Under the circumstances of this case, the subject-matter of the litigation having ceased to exist, the motion to dismiss must be sustained; and it has been so ordered. Old River Rice & Irrigation Co. v. Stubbs, 133 S. W. 494; Searcy v. Fayette Home Telephone Company, 143 Ky. 811, 137 S. W. 777; Langham v. City of Beaumont, 152 S. W. 869; Electric Park Company v. San Antonio Baseball Association, 155 S. W. 1189; Liebovitz v. American Construction Company, 145 S. W. 1048.
      <Sfe»For other'cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ifesFor. other cases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes