author: LEVY, J.

text:
    DAVIS et al. v. CONN.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 25, 1913.
    Rehearing Denied Dec. 4, 1913.)
    1. Logs and Logging (§ 3) — Sales of Standing Timbee — Distinction Between Realty and Peesonalty.
    Where it is contemplated by a conveyance of growing trees that the purchaser shall have some beneficial use of the land in connection with the trees, which shall remain on the land and receive their sustenance therefrom, the salé is of an interest in land, and carries the right to ■ the use of the land for the sustenance of the trees and of entering thereon to enjoy the interest conveyed.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    2. Logs and Logging (§ 3) — Sales of Standing Timbee — Distinction Between Realty and Peesonalty.
    Where, in conveying growing trees, a severance and taking away from the land is contemplated, the sale is of an interest in chattels only, and the right of removal must be exercised within the time agreed.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    3. Logs and Logging (§ 3) — Sales of Standing Timbee — Distinction Between Realty and Peesonalty.
    A sale of growing trees with the privilege of removing them within five years, or after that time if an annual rental shall be paid, operates as a sale of chattels rather than of an interest in realty.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dee. Dig. § 3.]
    4. Conteacts (§ 10) — Logs and Logging (§ 3*) — Mutuality—Sales of Standing Tim-bee — Oonstetjction.
    A stipulation, in a conveyance of all trees of 12 inches or greater diameter growing on certain land, that the agreed time for removing them may be extended as long as the buyer “may want” upon payment of certain rental, is not unilateral and void, but is to be construed as meaning that the time may be extended for as long as needed.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10 ; Logs and Logging, Cent. Dig. §§ 6-32; Dec. Dig. § 3.]

      5. Logs and Logging (§ 3) — Sales of Standing Timber — Construction of Contract.
    Under a conveyance of growing trees with the right of removing them within five years, or thereafter if an annual rental should be paid, the buyer had the right to turpentine the trees while 'standing, where he proceeded, with diligence, to remove them in accordance with the contract, and no damage was done the soil beyond that necessarily incident to turpentining the trees.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    6. Logs and Logging (§ 3) — Sale of Timber — Turbentining1—Injury—Persons Liable.
    Where the buyer of all trees of 12 inches or greater diameter growing on certain land sold the right of turpentining such trees, he was not liable in damages because those tur-pentining the trees destroyed trees under 12 inches diameter, since that was a trespass with which he had nothing to do.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by J. R. Davis and another against R. C. Conn. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    By their petition the appellants claim' to be the owners of three several tracts of land, and allege that appellee in February, 1911, wrongfully and without right entered upon the land and turpentined the pine trees, and in so doing injured the soil and the grasses and a number of the trees, and then later did remove from the land a large quantity of the pine timber growing thereon. Appellee answered by denial and not guilty, and specially that by conveyance in writing he purchased all pine timber 12 inches in diameter and upwards from appellants, and that the extensions of time authorized by the conveyance had been complied with according to the terms. By a cross-bill of appellee Rosemond & Day, as partners, were made parties defendant, and judgment asked by appellee over and against such partnership in the event any judgment should be rendered against appellee for their alleged trespass. A trial was 'had to the court without a jury, and there was a judgment for appellee and against appellants.
    The evidence shows that appellants were the owners of the lands described in the petition, and that on January 9, 1906, by deed they sold and conveyed the pine timber on the land above 12 inches in diameter. The cash consideration recited in the deed was actually paid, and at the time the note mentioned in the deed was due it was fully .paid. On August 26, 1907, appellee Conn leased in writing to Rosemond & Day the timber conveyed by the deed of appellants to him, for turpentine and resin purposes; Rosemond & Day agreeing to pay appellee therefor the sum of $8,000. Rosemond & Day both began and ceased their operations on the timber for turpentine during and before the expiration of five years from the date of Conn’s deed from appellants. Turpentine of considerable value was taken from the trees. In turpentining the trees exclusive use of the land was not made, and there was only such use of the land as was incident and necessary to the removing of turpentine from the land, and no injury was done to the soil. Just before the expiration of five years from January 9, 1906, appellee Conn tendered to appellants -the amount of the yearly rental provided for in the deed, which was refused by appellants, and during the sixth year from January 9, 1906, began to remove trees from the lands. At the end of the sixth year ap-pellee had not finished the removal of the trees and tendered appellants,. the yearly rental provided in the deed, which was refused by appellants, and continued to remove trees from the land. At the time of the trial about two-thirds or three-fourths of the trees had- been removed from the land by appellee or his vendees, Simmons Bros., and the only trees removed were of the specification and kind described in the deed. The deed made and delivered by appellants to appellee, after omitting formal parts and description, reads' as follows: “For and in consideration of the sum of $6,-700.00 to us in hand paid and secured to be paid by R. C. Conn, as follows: $3,700.00 cash and one promissory note for $3,000.00 due in two years from the 10th day of January, A. D. 1906, with 8 per cent, interest, have granted, sold and conveyed, and by these presents do sell, grant and convey unto the said R. C. Conn, of the county of Jasper and state of Texas, all pine timber from 12 inches and up, now standing, lying or growing on three certain tracts or parcels of land now lying and being situated in Jasper county, Texas, and about 15 miles south of Jasper, and described as follows: (We here omit the description.) To have and to hold the above-described timber with all and singular the rights and privileges to enter upon said land with teams, tools and men to cut and remove said timber off of said land, with this exception, that the said R. C. Conn or his successors is not to enter into my present inclosures, and we hereby give R. C. Conn five years to cut and remove the said timber off the said land, beginning the 19th day of January, A. D. 1906, and end the 19 th day of January, A. D. 1911, and should the said R. C. Conn fail to cut the timber in the period of time or five years, we do hereby agree to extend the time for as long as the said R. C. Conn may want, provided the said R. C. Conn and his successors shall pay unto us two hundred and thirty-six dollars ($236.00) per an-num each year that he may hold the timber and the said land, but it is understood and agreed that when all the said timber is cut and removed off of said land from 12 in. dia. measuring 18 ins. from the ground and upward, this deed shall become null and void. We do hereby reserve all timber under 12 ins. at the time it is cut off of said land. To have and to hold the above-described timber and right of way through said land thereunto in any wise belonging unto the said R. C. Conn, his heirs and assigns, and we do hereby bind ourselves, our executors and administrators to warrant and forever defend all and singular the said premises unto the said R. C. Conn, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof. But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property until the above-described note and all interest thereon are fully paid according to its face and tenor effect in reading when this deed shall become absolute. Witness our hands, * * * Texas, this 9th day of January, A. D. 1906.” (Here signed, acknowledged, and also recorded.)
    The court made findings of fact, and, as here material, these were: (1) That appel-lee had in fact nothing to do with the turpentining of the trees, but merely sold Rosemond & Day his right thereto by reason of the sale and conveyance from appellants ; (2) that no material injury was done to the land or the grass by turpentining the timber thereon; and (3) that appellee, through his vendees, had cut and removed from the land during the sixth and seventh years after the date of the deed from appellants about two-thirds of the pine timber growing on the land, after tendering each year the rental value provided in the deed, which each time was refused by appellants. The rental value of the sixth and seventh years were tendered in court. On the facts of the case the court concluded appellee had purchased the absolute right of the trees and could convey the right to turpentine the trees, and was not liable for the value of the timber removed, and, there being no damage done to the soil, judgment should be for the appellee.
    Holland & Holland, of Orange, and Roi Blake, of Jasper, for appellants. Smith & Blackshear, of Jasper, and J. B. Warren, of Houston, for appellee.

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

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

   LEVY, J.

(after stating the facts as above.) The principal questions made on the appeal are founded on the several assignments of error, which may here be disposed of together, that challenge the conclusions of law made by the court that appellee was not owing appellants in damages for the value: (1) Of the trees cut and removed from the land; or (2) for the turpentine taken from the trees; or (3) for the rental value of the land during the time the trees were being turpentined. The questions made are predicated, of course, upon the established facts as found and considered by the trial court. • In order to determine the rights of the parties in respect to the questions, it is required that the timber deed from appellants to appellee be construed and given legal effect. There are quite a number of generally reported cases dealing with the sale of growing trees upon the principal question of whether such sale operated to pass an interest in land or to be a sale of chattels only. By one line of the eases the question is answered that according to the facts therein the sale of growing trees operates to be a sale of an interest in land. By the other line of cases a sale of growing trees is held under the facts therein to be a sale of chattels only. And the reasons and principles determining the ruling in such eases upon the effect that should be ascribed to the sale could well be considered as furnishing a criterion to determine the effect to be given the sale in this case. A number of the cases rather turn on the point that in them the agreement of the parties was not made with a view to the removal and severance of the trees from the soil, but their remaining thereon; and standing trees being legally regarded as part and parcel of the land in which they are rooted and from which they draw their support, therefore, in that sense, the sale passed an interest to real estate. And the reason for the holding in a number of eases that a sale of growing trees is a sale of chattels only is that in the contemplation and agreement of the parties in such particular cases the sale was made in prospect of the severance and removal of the trees from the land, and not to remain on the land, and therefore the sale was intended and operated to be a sale as chattels only. It is quite unnecessary to cite these numerous cases. And if the distinction made in the cases is to be observed as a property rule, the two doctrines are announced that in a sale of trees growing upon land where in the particular case (1) it is contemplated by the conveyance that the vendee is to have some beneficial use of the land in connection with the trees and that the trees shall remain thereon so as to receive profit and growth from the growing surface of the land, the sale operates as a sale of an interest in land; and (2) where it is contemplated and intended by the conveyance that there shall be a severance and taking away of the growing trees from the land, such sale must be regarded and operates to be a sale as of chattels only. It is quite well settled by the cases that growing trees may by the agreement of the parties be severed, in contemplation of law, from the land, and be dealt with in the contract as personalty removable immediately or timely without an actual severance at the time. In this state the two rules above stated have been announced and followed. The first rule is applied in the case of Lodwick Lbr. Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803. The second rule is applied in the cases of Beauchamp v. Williams, 115 S. W. 130; Development Co. v. Lumber Co., 139 S. W. 1016; Carter v. Clark & Boyce Lbr. Co., 149 S. W. 278; Lumber Co. v. McWhorter, 156 S. W. 1153; Lancaster v. Roth, 155 S. W. 597. From the Taylor Case, supra, firstly referred to, flows the rule that, an interest in the nature of realty being conveyed, there goes with the title to the timber the right to the use of the soil for its sustenance and of entry upon the land for its enjoyment. And from the cases immediately above, secondly mentioned, flows the rule that the trees being conveyed in the nature of personalty in prospect of severance and removal within a reasonable time or "agreed time, the extent and duration of the grant is limited to and the right determined at the end of the agreed time.

Bearing in mind the principle and rules stated, the deed in this case is to be referred to in order to see the rights it conveys and effect of the rights. It appears therefrom that appellants purported to and did convey to appellee, for the consideration therein stated, “all pine timber from 12 inches and up now standing or growing” on the land described. And appellee was “to have and to hold the above-described timber, with all and singular the rights and privileges to enter upon the said lands with teams, tools and men to cut and remove said timber off of said land, with this exception, that the said R. C. Conn or His successors is not to enter into my present inclosures, and we hereby give R. C. Conn five years to cut and remove the said timber off the said land, beginning the 19th day of January, A. D. 1906, and end the 19th day of January, A. D. 1911, and should the said R. C. Conn fail to cut the timber in the period of time or five years, we do heréby agree to extend the time for as long as the said R, C. Conn may want, provided the said R. C. Conn and his successors shall pay unto us two hundred and thirty-six dollars ($236.00) per annum each year that he may hold the timber and the said land.” According to the language of the parties, as seen, there is stipulated and agreed' that a severance and removal of the growing trees shall be, first, within five years from the date of the deed; and failing to sever and remove the trees within that time, then within an extended period thereafter, upon payment of a rental for their occupying the land during such extended period. Thus there is made to plainly appear a sale made by the parties with the view and intention to the severance and removal of the trees from the land within a stipulated time. And so there is present in the sale all elements within the principle governing the effect given such conveyances of growing trees as a sale of chattels only. Concluding, as we do, that the result of the deed, construed as a whole, evidences the intention and agreement to pass the trees as chattels only, “with all and singular the rights and privileges to enter upon said land with teams, tools and men to cut and remove said timber off of said land,” then the rule in such cases would be applicable that the extent and duration of the grant is limited to and the right determined at the end of the agreed time.

Recurring to the -stipulation in the deed, in order to determine the time limit for severance and removal of the trees from the land, it appears that after five years from the date of the deed, which time in this case had actually expired, appellee, upon paying a stipulated sum, should have extension of as much time more in which to sever and remove the trees as he “may want.” Appellants contend that this latter stipulation is unilateral and void. We think, however, that the word “want” should be construed in the sense and meaning of “need,” and that the language of the entire stipulation was intended by the parties to express the agreement that appellee should on paying the rental have the time needed to sever and remove the trees from the land. This construction makes consistent and harmonizes the further provision of the deed, “But it is understood and agreed that when all the said timber is cut and removed off of said land from 12 in. dia. measuring 18 ins. from the ground and upward, this deed shall become null and void.”

Now it is conclusive, as found by the court, that appellee tendered the rental within the time of six and seven years from the date of the deed, and. was proceeding in diligence during that time to cut and remove the trees. And it is not questioned by appellants that the time was not proper and such as was reasonably required to remove the trees if the stipulation was not void. It follows therefore that appellee was not cutting and removing the trees in violation of his contract. And consequently appellee, under his conveyance and under the facts, had the right to the enjoyment of his property to the extent of turpentining the trees and using such products and cutting and removing the timber, and the trial court correctly so held. And in view, of the finding of fact by the trial court that no damage was done to the soil, or use made of the soil beyond what was necessary and usually incident to turpentining trees, the ruling of the court denying appellants any damages or rental value therefor was correct. This ruling overrules and disposes of all the assignments except the fourth.

The fourth assignment challenges the conclusion of fact made by the court that appellee had nothing to do with the turpen-tining of the trees on the land, but merely sold Rosemond & Day his right thereto by reason of the conveyance and sale he had from appellants. The finding is supported by the evidence, and the assignment is overruled. -The contract of appellee with Rosemond & Day by its terms leased to them for turpentine and resin purposes only all the-standing and growing pine timber which measured 12 inches in diameter 18 inches from the ground, as passed hy appellants to appellee; and ap-pellee had nothing to do with the turpen-tining of the trees. It is true Rosemond & Day in violation of the contract destroyed in turpentining 192 trees under the dimensions, hut it was a trespass, in the facts, for which Rosemond & Day were liable. And appellants did not sue Rosemond & Day.

The judgment is affirmed.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    REEVES v. WHITE.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.)
    1. Courts (§ 169) — County Court — Jurisdiction — Amount in Controversy.
    In an action in the' county court between former partners, where defendant by counterclaim sought to recover the specific sum of $999 alleged to have been received by the plaintiff:, who refused payment thereof, the court was not called upon to adjudicate a partnership transaction of double that amount, so as to exceed the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    2. Pleading (§ 330) — Particulars — Excuse.
    The fact that plaintiff was in possession of the account books and would not permit defendant, his former partner, to inspect them afforded a sufficient excuse for not particularly itemizing the amount alleged by counterclaim to be due to defendant.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 996-1002; Dec. Dig. § 330.]
    3. Set-Oee and Counterclaim (§ 3) — Construction oe Statute.
    Rev. Civ. St. 1911, art. 1325, providing that, in any suit brought for the recovery of any debt due by judgment, bill, or otherwise, the defendant may counterclaim against the plaintiff, was enacted to avoid a multiplicity of suits and should be liberally construed.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. § 3; Dec. Dig. § 3.]
    4. Set-Oee and Counterclaim (§ 23) — Claim upon Tort — Statute.
    Under Rev. Civ. St. 1911, art. 1329, providing that, where suit is founded on a certain demand, defendant cannot set off unliquidated or uncertain damages founded on a tort or breach of covenant, defendant, in an action by his former partner on a note, might set off a debt due from the plaintiff.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 47, 48; Dec. Dig. § 28.]
    5. Partnership (§ 108) — Action between Partners.
    The rule that one partner cannot sue another except for dissolution of the copartnership and for a general accounting has no application to a suit between former partners after dissolution by consent.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 157-158, 160, 162-166; Dec. Dig. § 108.]
    6. Set-Oee and Counterclaim . (§ 44) — Subject-Matter— Joint or Separate Debt.
    The rule that set-offs or counterclaims must be due in the same right and that a separate debt cannot be set off by a joint debt does not prevent the setting off of a separate individual'debt from one of two partners to the other.
    [Ed. Note. — For other eases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-96, 98, 99; Dec. Dig. § 44.]
    7. Set-Off and Counterclaim (§ 33) — Subject-Matter.
    Where plaintiff was individually indebted to defendant upon any claim not founded upon a tort or breach of covenant,. defendant might set off such debt against his individual indebtedness to the plaintiff founded on a note, and it was immaterial that defendant’s demand arose out of former partnership transactions.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §jj 1, 32, 54, 55; Dee. Dig. § 33.]
    8. Action (§ 25) — Equitable and Legal Demands.
    The distinction that, except where otherwise provided by statute, an equitable demand cannot be pleaded in a court of law in set-off against a legal demand has been abolished in this state.
    [Ed. Note. — For other cases, see Actions, Cent. Dig. §§ 124-145, 147-149, 153, 156-159, 313; Dec. Dig. § 25.] .
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.
    Action by G. F. White against G. P. Reeves. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. H. Anderson, of Marlin, for appellant Tom Connally, of Marlin, for appellee.

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

   JENKINS, J.

Appellee brought this suit to recover of appellant a balance alleged to be due on a promissory note for $800, executed by appellant in favor of appellee December 6, 1907. Appellant, by a verified plea, alleged that he and appellee on April 26, 1909, entered into a copartnership for the purpose of buying and selling cattle, setting out the terms of said copartnership, among which was that the profits of said business were to be shared equally; that each party complied- with the terms of said copartnership, and that the same was dissolved by mutual consent on March 11, 1911; that appellant’s part of the profits in said business was $999, which was in the hands of appel-lee, who refused to pay the same over to appellant or to credit the same on the note sued on; that it was specially agreed that appellant’s part of the profits in said business should be applied to the liquidation of said note, but that appellee had failed and refused so to do, except for the sum of $359.95, credited on said note.

Appellant alleged that the books and accounts of said copartnership were in the hands of appellee, for which reason he could not more particularly set out the items of profit due him. He prayed that appellee be required to produce in court said books and accounts; that the amount due him be applied first as a set-off against the amount due on the note sued on, and that he have judgment over for the balanee. Appellee excepted to said answer because: (a) It appeared that the amount pleaded in set-off was beyond the jurisdiction of the county court; (b) the items of profit were not pleaded with sufficient certainty; and (c) it appeared that the matters pleaded arose out of a partnership transaction and were not proper items of set-off against a suit upon a note. These exceptions were sustained, and the action of the court is before us for review.

1. As to the amount in controversy it is the contention of appellee that, inasmuch as appellant alleges that his share of the profits were $999, the court is called upon to adjudicate a partnership transaction of double that amount. It is immaterial what was the amount of the copartnership transactions. Appellant is not suing for a dissolution and settlement of a copartnership but for a specific sum, to wit, $999, which he alleges appellee has received and refuses to pay over to him.

2. Appellant gives a sufficient excuse for not more particularly itemizing the amounts alleged to be due him, viz., that ap-pellee is in possession of the account books and will not permit him to inspect them.

3. The common-law doctrine as to set-off has been modified by our statute, which reads as follows: “Whenever any suit shall be brought for the recovery of any debt due by judgment, bond, bill, or otherwise, the defendant shall be permitted to plead therein any counterclaim which he may have against the plaintiff, subject to such limitations as may be prescribed by law.” R. S. art. 1325. The object of this statute is to avoid a multiplicity of suits and it should be liberally construed. The only limitations prescribed by law are found in article 1329, R. S., which reads: “If the plaintiff’s cause of action be a claim for un-liquidated or uncertain damages, founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt due him by the plaintiff; and, if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff.”

In this case the-plaintiff’s suit is founded on a certain demand, to wit, a note; but defendant’s demand is not founded on a tort or breach of covenant. Appellant alleges that the terms of the copartnership were complied with by both parties; and the fact that appellee refuses to pay over to appellant his portion of the profits is no more a tort or breach of covenant than would be the refusal to repay money which had been loaned to appellee by appellant.

4. Expressions found in the text-books and decisions, to the effect that one partner cannot sue another, except for dissolution of the copartnership and for a general account* ing, have no application to the instant case. Appellant and appellee are not partners. The copartnership formerly existing between them is alleged to have been dissolved by mutual consent prior to the institution of' this suit.

5. In many cases it has been held that a debt arising from a pre-existing partnership* cannot be set off against an individual claim of one of the former partners against another. But these were cases in which there were more than two partners; and, there-having been no final settlement of the partnership affairs, the debt is not due to the partner who is sued in his individual right but jointly to him and the other partner or partners.

It is a well-established principle that set-offs or counterclaims must be due in the same right, and that a separate debt cannot be set off by a joint one. Allbright v. Aldrich, 2 Tex. 166; Hamilton v. Van Hook, 26 Tex. 306. Our statute does not modify this principle. Greathouse v. Greathouse, 60 Tex. 598. But in the instant case, there having been but two partners, if appellee has refused to pay over to appellant, as alleged, the half of the partnership profits due appellant, he is indebted to appellant individually to the amount so withheld.

6. If appellee is individually indebted to appellant or is liable to him individually upon any claim not founded on a tort or breach of covenant, the appellant may set off the same against any individual indebtedness due to appellee founded on a certain demand; and it is immaterial whether appellant’s demand against appellee arose out of the transaction of a former copartnership or otherwise, or partly out of such transactions and partly otherwise. Barber v. Morgan, 76 S. W. 319.

7. Some confusion seems to have arisen by not keeping in view the fact that a suit upon a note is a suit at law, and that a suit for partnership accounting is a suit in equity, and that, except where otherwise provided by statute, an equitable demand cannot be pleaded in a court of law in set-off against a legal demand. This was the basis of the decision in Willis v. Barron, 143 Mo. 459, 45 S. W. 291, 65 Am. St. Rep. 673, cited by appellee, wherein it was said: “A mere suggestion of an accounting and an equitable defense will not oust a court of law of its jurisdiction.” This distinction has been abolished in this state. But, independent of this fact, appellant’s demand was a proper set-off against the demand of appellee.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for trial in accordance with this opinion.

Reversed and remanded.


author: REESE, J.

text:
    DULLER v. McNEILL.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1913.)
    Appeal and Error (§ 467*) — Supersedeas Bond — Parties—Principal.
    It is not necessary that a supersedeas bond be signed by the principal, so that the fact that a married woman, who was a party, could not legally sign the supersedeas bond did not affect its validity if the sureties were sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2230, 2233; Dec. Dig. § 467.*]
    Appeal from District Court, Harris County ; Wm.- Masterson, Judge.
    Suit by W. A. McNeill against Carrie Nell Duller and husband. From a judgment for plaintiff, defendant wife appeals, and plaintiff moves to dismiss the appeal.
    Motion overruled.
    Baldwin & Baldwin, of Houston, for appellant.
   REESE, J.

In a suit by W. A. McNeill against Carrie Nell Duller and her husband, McNeill recovered a judgment for money against both defendants, and foreclosing mortgage and vendor’s liens against certain real estate. From this judgment Mrs. Duller appeals. She gave a supersedeas bond signed by herself and several sureties. The bond is payable to McNeill and also against Duller, the husband. Appellee, McNeill, has filed a motion to dismiss the appeal on the ground that Mrs. Duller, being a married woman, cannot bind herself or her separate estate by the execution of such bond, and that it is void as to her.

It seems to be settled by a long line of decisions in this state that it is not necessary that such bond be signed by the principal. Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722; Lindsay v. Price, 33 Tex. 280; McKellor v. Peck, 39 Tex. 381; Bridges v. Cundiff, 45 Tex. 439; San Roman v. Watson, 54 Tex. 254; Palmer v. Spandenberg, 49 Tex. Civ. App. 331, 108 S. W. 478.

The motion is overruled.


author: HARPER, C. J.

text:
    FIDELITY & DEPOSIT CO. v. BANKERS’ TRUST CO.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1913.
    Rehearing Denied Dec. 11,1913.)
    1.Appeal and Error (§ 736) — Assignments oi? Error — Multifarious Assignments.
    In an action on a bond executed by defendant to indemnity against nonperformance of a contract to build a house and to protect plaintiff, who made a deposit of $5,400 to assist the contractor in building, there were assignments of error in rendering judgment for plaintiff, because there is no evidence that the contractor was insolvent, or that the $5,400 advanced by plaintiff could not be collected from him, and defendant' should not be required to reimburse plaintiff for additional expenditure which plaintiff voluntarily elected to make, to get back its deposit, and also that the court erred in rendering judgment for plaintiff because, in completing the building and making an additional expenditure, plaintiff acted as volunteer, without request, and that it was not shown that the contractor was insolvent, so as to make it necessary to do so in order to collect the $5,400 advanced to him. Reid that the assignment was multifarious.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    2. Principal and Surety (§ 163) — Surety’s Liability.
    Where, in an action on a bond executed to secure the performance of a contract to erect a house and to secure plaintiff in making a deposit to assist the contractor brought by such depositor, judgment was rendered against both the surety and the contractor, with execution to issue first against the contractor and judgment for the surety over against him, it was immaterial whether the contractor was solvent with respect to the surety’s liability to reimburse such depositor.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 446-454; Dee. Dig. § 163.]
    3. Principal and Surety (§ 160) — Constructive Contracts — Action on Bond-Admission op Evidence.
    In an action on a bond to indemnify against the failure of a building contractor to construct a building and to indemnify plaintiff, who made a deposit to assist the contractor, evidence that plaintiff was not an owner of the house, though so designated in the bond, but merely advanced the money to the contractor, was admissible to establish plaintiff’s interest in the subject-matter.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 436-438; Dec. Dig. § 160.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by the Bankers’ Trust Company ■ against the Fidelity & Deposit Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Gill, Jones & Tyler, of Houston, for appellant. Hunt, Myer & Teagle and W. S. Bailey, all of Houston, for appellee.

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

   HARPER, C. J.

The appellee, Bankers’ Trust Company, instituted this suit against appellant, Fidelity & Deposit Company, on a bond of indemnity in the sum of $4,000. The petition alleges, in substance: That B. M. Levy contracted in writing with J. R. Darnell, whereby Darnell bound himself to furnish all material and construct a certain house, for the sum of $5,400. That for the purpose of assisting said Darnell in financing the contract the Bankers’ Trust Company agreed in writing to, and did, deposit $5,400 in the Houston National Exchange Bank, to remain in escrow until the building was completed. And said company further agreed that in ease Darnell should fail to complete the building according to the plans and specifications, and in the event that the Fidelity & Deposit Company failed to take over the contract after breach, then the Bankers’ Trust Company to have the privilege of taking over the work of completing the house. And that for the purpose of securing the said Levy and said trust company in the full performance of the said contract by Darnell, the defendant executed its indemnity bond. That Darnell expended the full amount of the contract price, and then found that it would require more money to complete the house, which he could not command, nor could he secure credit for material. Thereupon he notified the parties. That he then refused to further continue the work under the contract. That immediately thereafter said Levy notified the defendant company; in response to this notice the plaintiff trust company furnished the material and finished the building at an additional cost of $2,763.07. That thereafter Levy transferred and assigned his interest in the bond sued on to plaintiff. Defendant pleaded general denial, and specially pleaded that it had an agreement with J. R. Darnell, C. J. Brown, and W. E. Patterson in writing to indemnify the Fidelity Company against loss, including attorney’s fees and costs.

The trial court filed the following findings of fact:

“No. 1. I find from the undisputed testimony that on the 8th day of October, 1909, the defendant Darnell entered into á written contract with B. M. Levy to construct a residence for said Levy in the city of Houston, Tex.; Darnell to furnish all labor and material, and to complete said house for the sum of $5,400. That on the 12th day of October, 1909, the defendants, Darnell and Fidelity & Deposit Company, executed and delivered to Levy and the Bankers’ Trust Company the bond sued on herein, in the sum of $4,000, and which was conditioned upon the faithful performance by said Darnell of said builder’s contract, which was, by the terms of the bond, made a part of the bond.
“No. 2. I find that before this bond was executed and delivered a written application was made therefor by Darnell, filed with the local agent of the Fidelity & Deposit Company, and was sent by said agent to the said company’s head office at Baltimore, Md. I find that before the bond was issued, the defendant deposit company had notice, in addition to the recital in its said bond, that the Bankers’ Trust Company had an insurable interest in the Darnell-Levy building contract, and knew that said Bankers’ Trust Company was seeking indemnification by having said bond issued as aforesaid, and that the deposit company knew, prior to issuing the bond, that said trust company had incurred some liability or assumed risk of financial loss in connection with the construction of said' building by said Darnell.
“No. 3. I find that Darnell, Levy, and the Bankers’ Trust Company had negotiations looking to the construction of this building by Darnell, and that the Bankers’ Trust Company would only finance said Darnell on the condition of his giving It indemnity, and after such bond was given with said deposit company as surety, said Darnell, Levy, and Bankers’ Trust Company reduced their prior agreement to writing on the 13th day of October, 1909, as shown by the ‘escrow’ or ‘three party’ agreement introduced in evidence. I find that the parties complied with the terms of said escrow agreement, Levy deposited the $5,400 in the bank, the Bankers’ Trust Company advanced a like amount to Darnell in purchasing labor and material used by him on said building, and that Darnell proceeded with the work of construction of said house.
“No. 4. I find that Darnell proceeded with the construction of said house until the sum of $5,400, the contract price, had been exhausted, which was all advanced by the Bankers’ Trust Company, and that Darnell then quit work and abandoned said contract because of his inability to purchase same on credit. I find that immediate notice of these facts was given to the deposit company by registered notice in the manner required by said bond, that said deposit company made no reply to said notice, and did not offer to complete said building, an that after a lapse of about 10 days the Bankers’ Trust Company did take charge of said building, and complete the same at a cost of $2,756.03 to it over and above the contract price of $5,400; that said house was completed by said Bankers’ Trust Company according to the plans- and specifications agreed on by Darnell and Levy; that the additional labor, supplies, and material necessary to the completion were purchased at the market prices then prevailing, and same were so purchased, supplied, and paid for by the Bankers’ Trust Company, and that said company has not. been repaid any part thereof; that on completion and acceptance of the house by said. Levy the escrow money $5,400 was released to the Bankers’ Trust Company.
“No. 5. I find that at the time this bond was issued by the deposit company it took an indemnity bond from said Darnell with C. J. Brown and W. S. Paterson as sureties, which last bond also provided for costs and attorney’s fees in favor of said Fidelity &. Deposit Company in the event of loss or litigation involving said company; that by reason of Darnell’s default, as aforesaid, the-Fidelity & Deposit Company has been required to defend this action and retain attorneys, and that $150 is a reasonable fee for such services.
“No. 6. I find that prior to the execution, of the deposit company bond of October 12, 1909, sued upon herein, Levy, Darnell, and the Bankers’ Trust Company had verbally-agreed among themselves upon the terms afterward embodied in the ‘escrow agreement,’ and that the deposit company when it executed said bond knew the substantial details of said three party agreement.”

In its first, second, third, sixth, eleventh,. twelfth, fifteenth, and twentieth assignments of error, the appellant complains that the court erred in rendering judgment for the plaintiff, Bankers’ Trust Company, because the bond sued on indemnifies the “owner” of the building, and that plaintiff was not an owner in contemplation of the bond, and because there is no evidence that plaintiff was guarantor of Darnell’s performance of the contract, and therefore plaintiff had no legal right to bind the defendant by its voluntary act of completing the building. “The trial court’s second finding of fact is a complete answer to the contentions of appellant in these assignments, which we approve, as supported by the evidence. Without any evidence of insurable interest in plaintiff at the time the bond was executed, the meaning of the language used in the bond is to insure the parties therein named against the default of Darnell, and if by reason of the default the plaintiff was injured, it is entitled to recover to the extent of such loss.

The fourth and fifth assignments, if .considered together as grouped, are multifarious:

“The court erred in rendering judgment for the plaintiff, against this defendant, because there is no evidence in the record that Darnell was insolvent, or that the $5,400 advanced him by plaintiff could not, or cannot be, collected from him, and this defendant should not be required to reimburse plaintiff for an additional expenditure of $2,756.03 sued for in this suit, which plaintiff voluntarily elected to make in order to get the specific $5,400 placed in escrow by Levy; no evidence of the peculiar charm, value, or attractiveness of that particular $5,400 being given to this defendant
“The court erred in rendering judgment for the plaintiff, against this defendant, because in voluntarily completing said building, and in voluntarily making the additional expenditure of $2,756.03, plaintiff acted wholly as a volunteer, being under no obligation so to do, being unréquested so to do, no right being given it by this defendant so to do in the bond sued on, or any other written contract to which this defendant was a party, and the record disclosing no evidence of insolvency on the part of Darnell that would render it necessary or advisable or expedient so to do in order to collect the $5,400 advanced Darnell by plaintiff.”

But, the fifth assignment being followed by the proposition that, there being no evidence that Darnell was insolvent, there can be no liability upon the part of defendant to reimburse plaintiff, it is considered by the observation. Judgment is against both the surety company and Darnell, with execution to issue first against Darnell, and with judgment for the defendant over and against him. So it matters not whether he is solvent or not.

The seventh and eighth assignments are as follows:

’’The court erred in allowing plaintiff to introduce, over the objection of this defendant, the oral testimony of W. S. Bailey, to the effect that plaintiff was not an owner of the house contracted to be built by Darnell, though so designated in the bond sued on, but that plaintiff merely advanced Darnell the money with which to build said house, and was to have the right to reimburse itself by.means of the $5,400 placed in escrow by Levy, upon completion and acceptance of the house, etc., and that said facts were known to the agents of this defendant, as said testimony varied, contradicted, and amplified and enlarged the terms of the instrument sued on.”
“The court erred in allowing plaintiff to introduce, over the objection of this defendant, the oral testimony of J. R. Darnell, to the effect that the plaintiff was not an owner of the house contracted to be built by Darnell, though so designated in the bond sued on, but that plaintiff merely advanced Darnell the money with which to build said house, and was to have the right to reimburse itself by means of the $5,400 placed in escrow by Levy, upon the completion and acceptance of the house, etc., and that said facts were known to the agents of this defendant, as said testimony varied,- contradicted, amplified, and enlarged the terms of the written instrument sued on.”

The evidence complained of was properly admitted, as it tended to establish the plaintiff’s interest in the subject-matter of the indemnity bond. This observation disposes of the ninth assignment.

The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments are overruled because the evidence supports the finding of 'facts, upon these points, by the court, and the said assignments are to the effect that the court erred in his findings of fact and conclusions of law.

The assignments are therefore overruled, and the cause affirmed.


author: PLEASANTS, C. J.

text:
    HAMMOND et al. v. McFARLAND.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 5, 1913.
    Rehearing Denied Nov. 27, 1913.)
    1. Exemptions (§ 45)—Property Subject-Tools op “Trade. ”
    The conducting of a butcher shop by a person who slaughters very few animals, and buys most of the meat sold in his shop from packing houses, is a “trade” within Sayles’ Ann. Civ. St. 1897, art. 2395, subd. 5, exempting from execution all tools, apparatus, and books belonging to any trade or profession, the fact that he sells the meat which he cuts up or butchers not making him merely a merchant or dealer in meats, and any tool or apparatus belonging to such trade is exempt; but a tool or apparatus belonging to and used only in the business of selling meat is not exempt.
    [Ed. Note. — For other eases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.

    For other definitions, see Words and Phrases, yol. 8, pp. 7037-7041, 7818.]
    2. Exemptions (§ 45) — Property Subject-Tools op Trade.
    Neither a cash register nor a refrigerator or ice box is a tool or apparatus belonging to the trade of a butcher who also sells the meat cut up or butchered by him, and hence they are not exempt from execution under Sayles’ Ann. Civ. St. 1897, art. 2395, subd. 5, exempting the tools and apparatus belonging to any trade or profession.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.] '
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Suit for injunction by C. E. McFarland against M. F. Hammond and others. From a decree granting a temporary injunction, defendants appeal.
    Reversed and rendered.
    Gibson & Wander, of Houston, for appel-lee.

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

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

   PLEASANTS, C. J.

This appeal is from a decree of the county court at law of Harris county granting a temporary injunction restraining the defendants from seizing and selling under execution a cash register machine and a refrigerator or ice box owned and used by the appellee in carrying on his trade of butcher. The appellant M. F. Hammond is the sheriff of Harris county. The other appellant, the Houston Packing Company, a corporation organized under the laws of this state, having recovered a judgment •in the county court of Harris county against the appellee for the sum of $215 and costs of suit, procured the issuance of an execution on said judgment, and placed same in the hands of appellant Hammond, who proceeded to levy upon the articles above named, and advertise same for sale. This suit was brought to restrain appellants from taking the possession of the property from appellee, and selling it under the execution before mentioned.

The contention of appellee is that the property is exempt from forced sale under subdivision 5 of article 2395, Sayles’ Civil Statutes, which reserves to every family exempt from attachment or execution and every other species of forced sale for the payment of debts, unless the debt is secured by lien on the property, “all tools, apparatus and books belonging to any trade or profession.”

The evidence shows that appellee is a married man and head of a family. He conducts a butcher shop in the city of Houston, and has been engaged in that trade or business for two years or more. He testified: “X have no other trade or occupation and no other income. I am dependent for support of myself and family entirely upon my trade in keeping and carrying on said butcher shop. The trade of a butcher is like that of a skilled mechanic; it requires training and practice to be a butcher so as to develop necessary skill in cutting the meat. The common meaning of a butcher as understood here in this part of Texas is one that is skilled in cutting up meat for retail, and who keeps a butcher shop or meat market. The common, usual, and necessary tools and apparatus used in such are knives of different kinds for cutting meat, cleavers, saws (meat saws), meat blocks, on which meat is cut, scales for weighing, electric fans to keep butcher and helpers cool while at work,, and the meat also, and to keep off flies, a cash register, counters, an ice box or meat box, in which meat is kept refrigerated, a fish box, and some other implements. That the ice box or meat box levied on by the sheriff under the execution in this case is one of the most serviceable and necessary apparatus for the trade. That in this warm and humid climate it would be impossible to run the butcher’s trade or keep butcher shop without an ice box, where the meat could be kept cool; meat would spoil and rot in a few minutes without same. That-the sanitary officer would not permit a butcher shop conducted without such apparatus. That plaintiff kept all of these mentioned articles in his shop. That the cash register was also necessary and serviceable in being a place to make quick change of money. That it also kept a register of all sales and did away with necessity of a bookkeeper.”

The evidence further shows that appellee had slaughtered very few animals, most of the meat sold in his shop being obtained from the packing houses, and this is true of the butcher trade generally in cities. A cash register is commonly used in butcher shops and is necessary for making quick change and keeping account of sales.

We think conducting a butcher shop as appellee did his should be regarded as a trade in the purview of the statute before cited. It requires mechanical skill and experience to conduct a shop of this kind and a person so engaged is following a trade. The fact that he sold the meat which he cut up or butchered would not make him merely a merchant or dealer in meats and d;efedt his right to claim as exempt from forced sale the tools and apparatus belonging to his trade as butcher or meat cutter. Any tool or apparatus belonging to this trade would be exempt; but a tool or apparatus belonging to and used only in his business of selling meat would not be exempt. Bequillard v. Bartlett, 19 Kan. 382, 27 Am. Rep. 120.

Under the very liberal construction which the courts have generally given remedial statutes of this kind (vide Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710, and cases cited in that case), we would, if the question was an open one in this state, hold that

the refrigerator or ice box in which appel-lee kept his meat, and which the evidence shows was necessary and essential to a proper conduct of the butcher’s trade in this climate, was a tool or apparatus belonging to such .trade; but we do not think a cash register under any proper construction of the statute could be called a tool or apparatus belonging to the trade of a butcher. Wallace v. Bartlett, 108 Mass. 52; Bequillard v. Bartlett, 19 Kan. S82, 27 Am. Rep. 1E0; MeCord-Collins v. Lazarus, 50 S. W. 1048; Smith v. Horton, 19 Tex. Civ. App. 28, 46 S. W. 402,

The question presented by this appeal has, we think, been settled by our Supreme Court in the case of Simmang v. Insurance Co., 102 Tex. 39,- 112 S. W. 1044, 132 Am. St. Rep. 846. In that case the Supreme Court holds that a cash register and ice box or refrigerator used by a restaurant keeper in conducting his restaurant are not exempt from forced sale as tools or apparatus belonging to the trade of a restaurant keeper. It is conceded in the opinion in the case cited that the keeping of a restaurant is a trade in the purview of the statute, and the evidence showed that the articles named were used in carrying on said trade. We think it a matter of which the courts could take judicial notice that in this climate an ice box or refrigerator is not only useful ^nd convenient but essentially necessary in conducting a restaurant. It is just as necessary and essential for a restaurant keeper to have an ice box in which to keep food he prepares for his customers as it is for a butcher to have such a receptacle in which to keep the meats butchered or cut up by him. If an ice box is not a tool or apparatus belonging to the trade of a restaurant keeper, it is not one belonging to the trade of a butcher. This is just as true of a cash register.

In support of the opinion in the Sim-mang Case the court cites the cases of Heid-enheimer v. Blumenkron, 56 Tex. 314, and Dodge v. Knight (Sup.) 16 S. W. 626. We do not think these cases, which only decide that household and kitchen furniture used by a restaurant or hotel keeper is not exempt from forced sale under the subdivision of the statute above cited, which exempts such articles when used for family purposes, have any bearing upon the question of whether an ice box and cash register are exempt as tools or apparatus belonging to the trade of a restaurant keeper. But the court also cites with approval the case of Frank v. Bean, 3 Willson, Civ. Cas. Ct. App. § 211, which holds that the articles named are not tools or apparatus belonging to the trade of a restaurant keeper.

We think the decision in the Simmang Case is conclusive of the question presented on this appeal,, and that in accordance with that opinion the judgment of the court below should be reversed, and judgment here

rendered in favor of appellant, vacating the order granting the injunction, and it is so ordered.

Reversed and rendered.


text:
    VINSON et al. v. W. T. CARTER & BRO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1913.)
    1. Appeal and Ebeoe (§ 281) — PeesebvaTION OP GROUNDS OP REVIEW — NECESSITY op Motion pob New Trial.
    Assignments of error not supported by a motion for new trial cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.]
    2. Mortgages (§ 105) — Insteuments Simultaneously Executed — Consteuction.
    A deed and a bill of sale with a mortgage and notes simultaneously executed by the grantee as security for the purchase price, referring to the same subject-matter, constitute but one act and should be construed as one and the same agreement.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 214, 215; Dec. Dig. § 105.]
    3. Vendoe and Pubchaseb (§ 315) — Evidence — Payment op Puechase Money.
    A deed and bill of sale of personalty, with the grantee’s simultaneously executed mortgage and notes to secure the payment of the purchase price, was proof that the purchase money was not fully paid at the time of the conveyance to the grantee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 928-931; ■ Dee. Dig. § 315.]
    4. Vendoe and Pubchaseb (§ 79) — Conteact —Executoby Conteact. Such instruments, construed together, showed an executory contract for the conveyance of a tract of land, the superior title to remain in the grantor and his wife, and which would be- divested by the grantee or his vendees only by the payment of the purchase price.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 7, 8, 127-131; Dec. Dig. § 79.]
    5. Vendoe and Pubchaseb (§ 265) — Bona Fide Pubchaseb — Notice.
    Plaintiff in trespass to try title, claiming under a purchaser from a vendee with notice of the vendor’s lien and superior title, and who did not pay or offer to pay his proportionate part of the purchase money and did not exercise or attempt to exercise his right of redemption but abandoned it, could not recover against those claiming under the vendor.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.]
    Appeal from District Court, Tyler County; W. P. Powell, Judge.
    Trespass to try title by John F. Vinson and others against W. T. Carter & Bro., and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    V. A. Collins, of Beaumont, for appellants. Baker, Botts, Parker & Garwood, of Houston, Joe W. Thomas, of Woodville, and C. L. Carter, of Houston, for appellees.

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

   LEVY, J.

The action was by appellants against appellees in trespass to try title to about 388 acres of land out of tbe southeast corner of the 1555-acre tract in the Tat-man league. The appellants were the heirs of R. N. Dicken, to whom U. M. Gilder conveyed the same land on October 16, 1863. The appellees pleaded not guilty and vouched in their warrantor. The appellees claimed the land under deed from the heirs of Wm. Minter. The case was tried to a jury, and upon the conclusion of the testimony the court directed a verdict in favor of the ap-pellees.

The appellees object to consideration of the assignments as presented by appellants -in their brief, and the objection must be sustained for the reasons so given, except as to the second assignment in the brief, which is, we think, supported by a motion for new trial. The effect of the second assignment is to predicate error upon the action of the court in peremptorily instructing a verdict for appellees. The precise contention of error is that the recitation in the deed from Wm. Minter and wife to U. M. Gilder, of date March 11, 1863, recites the payment of the purchase money for the land, and there is not any evidence to show that the recitation in the deed is not correct, and therefore the appellees, as a matter of law, had failed to show title against the appellants. The evidence established that on the 11th day of March, 1863, Wm. Minter and wife, who were the owners, conveyed to U. M. Gilder a tract of 1555.9 acres of land, part of the N. Tatman league (which tract involves the land in controversy), and by the same conveyance a tract out of the Ann Fisher league in the same county; the consideration recited being $3,661 in hand paid. On the same date of March 11, 1863, Wm. Minter executed a bill of sale to U. M. Gilder fo'r a number of negro slaves, wagons, mules, horses, and oxen for a consideration recited of $42,440 in hand paid. On the same date of March 11, 1863, U. M. Gilder executed three notes payable to Wm. Minter, aggregating $25,471.12. On the same date of March 11, 1863, U. M. Gilder' 5Lnd wife executed a mortgage to Wm. Minter, to secure the identical three notes mentioned, on the same land described in the deed of the same date, and including other lands, and on the same personal property covered by the bill of sale. The deed and the mortgage were both filed for record in the county clerk’s office on the same day and recorded in the same record book on consecutive pages. On January 6, 1866, U. M. Gilder having defaulted in the payment of these notes, Wm. Minter filed suit thereon in the district 'court of Tyler county, seeking to enforce the mortgage upon the land and asking that it be sold to satisfy the lien. It appears that to this action defendants U. M. Gilder and wife answered setting up in substance a failure of consideration by reason of the emancipation of the negroes, and asking a rescission of the contract as follows: “Defendants here tender the said negroes or persons of color as mentioned in said mortgage purchased from the said Minter, plaintiff, together with all of the property purchased from the said plaintiff at the time the negroes were purchased, and asks that said contract based upon said mortgage and the promissory notes be canceled and that said mortgage be declared null and void and of no effect.” And the defendants in that spit also sued in reconvention to recover back $23,000 paid on the contract of purchase on March 11, 1863. It appears that this suit continued on the docket of the court for some years thereafter; and Gilder and wife having died, their heirs were made parties defendant by scire facias; and Minter and his wife having died, their heirs were properly made parties plaintiff. The plaintiffs in that suit, the heirs of Minter, on December 22, 18S4, filed their amended petition in the form of ordinary action of trespass to try title to recover the land described in the mortgage above referred to. The defendants in that suit, heirs of Gilder, answered by general demurrer, general denial, and plea of not guilty, filed on the same date. Thereupon an agreed judgment was entered ip. the cause in December, 1884, in which the heirs of Wm. Minter, as plaintiffs, recovered back the 1555.9 acres of the Tatman league and the tract of the- Ann Fisher league, being the identical lands which Minter and his wife had conveyed to Gilder; and the heirs of Gilder recovered from the heirs of Minter the other tracts of land described in the mortgage; and, the personal property having been lost by the freeing of the negroes, it was so declared. It appears, however, that on October 16, 1863, U. M. Gilder conveyed to R. N. Dicken the identical tract of 388 acres in this suit and covered by the mortgage previously given and recorded by Gilder to Minter. R. N. Dicken is the ancestor under whom plaintiffs in this case claim. It was proven, though, that R. N. Dicken stated that he knew, the Minter heirs had always asserted title to the land and had a mortgage on it, and after he^ got the land he learned that Gilder could not make him a good title, and he just moved off of it, and that he had never lived on it since or paid taxes on it or claimed it. It was further proven that R. N. Dicken was sheriff of the county from 1870 and for many years during the pendency of the suit between the heirs of Minter and the heirs of Gilder and never took any steps to assert any right to the property now claimed by his heirs. Also the record does not show, and appellant offered no proof, that the consideration named in the deed from Gilder to Dicken was in fact paid. ,

Under all these undisputed facts it would appear that it should be properly ruled that there was proof going to show that the purchase money for the land was not in fact fully paid, and that R. N. Dicken, under whom appellants claim as heirs, so knew, both actually and constructively, at the time of his deed, and that the superior title remained in Minter, and Dicken did not acquire the legal title, and, he having abandoned his claim and failed to avail himself of an equity of redemption, that appellants had no title to the land.

The deed, mortgage, notes, and bill of sale were all executed by the same parties and simultaneously. The mortgage is based upon the notes, and they are proven by the admissions of Gilder in his answer to the suit thereon by Minter to have been executed as a part of the consideration for the sale of the personalty and realty under mortgage. All the instruments being parts of and in reference to the same subject-matter, the effect of the simultaneous execution of the same would be to constitute them but one act and require them to be construed as but one and the same agreement. Howard v. Davis, 6 Tex. 181; Dunlap v. Wright, 11 Tex. 597, 62 Am. Dec. 506.

And, being so considered,'they evidence the fact that Minter and wife owned two tracts of land, slaves, and other property, and that Gilder desired to acquire these two tracts and the slaves and personal property, and to that end he executed the three promissory notes for the amount of unpaid purchase money of the slaves, personalty, and lands, executing contemporaneously the mortgage upon the property thus conveyed to him to secure payment of the purchase-money notes, and, in addition to the land and personal property thus being acquired, mortgaged also other real estate then owned by him. Consequently there was proof that the purchase money was not fully paid at the time of the conveyance to Gilder. By virtue of these instruments thus construed together, it would follow as a legal proposition that there was an executory contract for the conveyance of the tract of land out of the Tatman league, the superior title remaining in Minter and wife, and which could be divested by Gilder or his vendees only by the payment of the purchase price. Masterson v. Cohen, 46 Tex; 520; Jackson v. Palmer, 52 Tex. 427; Webster v. Mann, 52 Tex. 416; Hale v. Baker, 60 Tex. 217. And it is further to be observed that a complete rescission of the entire original contract evidenced by the deed, mortgage, bill of sale and notes took place and was given effect by the terms of the decree of 1884 upon the property; there being restored to Gilder, through his heirs, the land which he owned prior to the execution of the mortgage, independent of his purchase from Minter, and there being restored to Minter, through his heirs, the title to the land which he had contracted by the executory agreement to convey to Gilder out of the Tatman league and Fisher league. The effect was to revest the heirs of Minter with their ancestor’s title, free from the Gilder claim.

And the effect of the fact of which Dicken had notice is that, if Dicken secured any right or title, it was taken subject to the vendor’s lien and superior title of Minter. And he not having paid or offered to pay his proportionate part of the purchase money, nor having exercised or attempted to exercise his right of redemption, but having abandoned same, appellants cannot recover. Ufford v. Wells, 52 Tex. 617; Pierce v. More-man, 84 Tex. 596, 20 S. W. 821. The second assignment must therefore be overruled.

The judgment is affirmed.


author: WILLSON, C. J.

text:
    ADAMS et al. v. BURRELL et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1913.
    Rehearing Denied Nov. 27, 1913.)
    1. Appeal and Ebbor (§ 302) — Sufficiency ox Assignments — Rules ox Coubt.
    Assignments of error not distinctly specifying the ground of error relied on, and distinctly setting them forth in the motion for new trial, as required by rule 24 of Courts of Civil Appeals rules (142 S. W. xii), are not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752Dec. Dig. § 302.]
    2. Sequestbation (§ 20) — Judgment xoe De-pendant — Damages.
    In trespass to try title to timber land, plaintiffs, in order to protect the timber pending suit, filed a replevin bond by agreement, and obtained possession of the land. Held, that whether the bond was a common-law or statutory bond, plaintiffs, on judgment for defendant, were liable for unlawfully cutting and removing timber belonging to the defendant.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. § 20.]
    Appeal from District Court, Jasper County ; W. B. Powell, Judge.
    Action betw'een W. J. B. Adams and others against Arthur Burrell, R. C. Conn, and R. B. Ritchie and others. Judgment for defendants Conn and Ritchie, and Adams and others appeal.
    Affirmed.
    See, also, 104 Tex. 183, 135 S. W. 1156.
    W. J. B. Adams, R. F. Adams, and Abel Adams, appellants here, were plaintiffs in the court below. Their suit was against appel-lees R. C. Conn and R. B. Ritchie and others, and was to try the title to a tract of 640 acres of land in Jasper county and for damages. On the ground that they feared the defendants would make use of the possession they had of the land to injure it, and would convert to their own use the timber growing on it, appellants, at the time they commenced their suit, to wit, March 24, 1908, procured the issuance of a writ of sequestration and a levy thereof on the land. April 10, 1908, Tom Bilbo, one of the defendants, who claimed to own the northeast quarter of the tract, ap-

      pellees Conn and Ritchie who claimed to own the timber on said northeast quarter and on the northwest quarter of the tract, .and Arthur Burrell, who claimed to own the south one-half of the tract, replevied the land by filing a bond as authorized by the statute (article 7103, R. S. 1911). July 14, 1908, in accordance with an agreement between the parties, the replevy bond of said defendants was withdrawn from the files and canceled, and, in lieu thereof, appellants, as plaintiffs in the suit, made and filed a replevy bond, with W. W. Blake and Roi Blake as their sureties, conditioned as specified in article 7110 of the Revised Statutes of 1911, and, it seems, possession of the land thereupon was delivered to them. Afterwards, but before the cause was tried, timber on the northwest and northeast quarters of the tract was cut and removed therefrom. Alleging that appellants had wrongfully cut and removed same, appellees Conn and Ritchie, by a cross-action against appellants, sought a recovery against them for the value thereof. A trial resulted in a judgment as follows: In favor of appellants for the south one-half of the tract; in favor of defendant Rachel Burrell and others for the northwest quarter of the tract; in favor of the defendant Bilbo for the northeast quarter of the tract; and in favor of appel-lees Conn and Ritchie against appellants for the sum of $2,770 as the value of timber removed by them from the northwest and northeast quarters. Prom the judgment appellants prosecuted an appeal to the Court of Civil Appeals at Galveston. That court affirmed the judgment in so far as it was in favor of appellants for the south one-half of the tract, and in favor of Bilbo for the northeast quarter thereof, but reversed it in so far as it was in favor of Rachel Burrell and others for the northwest quarter, and in favor of Conn and Ritchie for the.value of timber thereon, and in so far as it was in favor of said Conn and Ritchie for the value of timber on the northeast quarter, and then rendered judgment in appellants’ favor for said northwest quarter, and, having determined that appellees Conn and Ritchie owned the timber on the northeast quarter of the tract, and were entitled to recover the value thereof, remanded the cause for a trial between appellants and said Conn and Ritchie to determine such value. 127 S. W. 581. The Supreme Court, after granting a writ of error, affirmed the judgment rendered by the Court of Civil Appeals. 104 Tex. 183, 135 S. W. 1156. A trial between appellants and ap-pellees Conn and Ritchie in accordance with the opinions of the Supreme Court and said Court of Civil Appeals resulted in a judgment in favor of said Conn and Ritchie against appellants and against W. W. Blake and Roi Blake, the sureties on appellants’ said replevy bond, for the sum of $1,938.50 as the value of timber cut and removed from said northeast quarter of said tract of land. Prom this judgment appellants, said W. J. B. Adams, R. P. Adams, and Abel Adams, alone appeal.
    Holland & Holland, of Orange, and Roi Blake, of Jasper, for appellants. Smith & Blackshear, of Jasper, and Goodrich & Lewis, of Hemphill, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above). If for no other reason, appellants should be denied a reversal of the judgment on the grounds urged in their first and second assignments, because same were not distinctly set forth in their motion for a new trial as required by rule 24 for the government of Courts of Civil Appeals. 142 S. W. xii. If, however, those assignments were entitled to consideration, it is not at all clear they should be sustained; for they are predicated on the assumption that, because defendants in the suit replevied the land after it was levied on by virtue of the writ of sequestration, they were in possession of it at the time the timber was cut and removed. Such an assumption ignores the fact that after it was so replevied, and before any of the timber was cut and removed, by an agreement between all the parties concerned, appellants executed and filed a replevy bond in lieu of the one defendants had filed, and in that way obtained, and at the time the timber was cut had possession of, the land.

The remaining assignment is that “the trial court erred in his first conclusion of law in finding that, under the judgment of the Court of Civil Appeals in this cause heretofore delivered, plaintiffs are liable to the defendants for the value of the timber cut and removed.” The reason given in the proposition under the assignment why appellants think.the court erred as claimed is that (as they assert) the bond they executed, by virtue of which they obtained possession of the land, was a common-law and not a statutory bond, wherefore, they say, it was necessary, before a judgment could be rendered against them and their sureties, that appellees Conn and Ritchie should allege and prove a breach of the bond. It may be conceded that as to the sureties, if they were in the attitude of complaining of it, the judgment should be set aside, if it appeared that it was rendered in the absence of such pleading and proof; for liability on their part was purely contractual. But it does not follow that for the reason given it should be set aside as to appellants. Eor, without reference to the character of the bond, or whether they had made a bond or not, appellants would be liable if they, as appellees alleged they did, unlawfully cut and removed from the land timber belonging to appellees. Whether appellants did so cut and remove such timber was a question of fact, to be determined from testimony heard. The sufficiency of the testimony to support a finding that they did unlawfully cut and remove the timber is not questioned by any assignment we can consider. In tliis attitude of the case we must assume, in support of the judgment, that the testimony was sufficient to show that they, or those acting for them, did cut and remove the timber.

The judgment is affirmed.


text:
    DYE et al. v. LIVINGSTON LUMBER CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1913.
    Rehearing Denied Dec. 11, 1913.)
    1. Partnership (§ 111) — Property Conveyed.
    A deed signed by partners who composed the Livingston Lumber & Manufacturing Company, which recited that it conveyed all of the property and assets of that company to a corporation, includes only the partnership property and does not pass title to the partners’ individual estate.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 214-221; Dec. Dig. § 141.]
    2. Pleading (§ 214) — Demurrer—Effect.
    On demurrer the averments of the petition must be taken as true.
    [Ed. Note. — Fo» other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    3. Trespass to Try Title (§ 32) — Actions— Petitions — Sufficiency.
    A petition in trespass to try title, which averred that defendants based their sole claim of title on a deed executed by plaintiffs as members of a firm, which included only the firm property, and that the land was the individual property of plaintiffs, states a cause of action.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32.]
    4.' Trespass to Try Title (§ 32) — Petition —Sufficiency. •
    In trespass to try title, where the petition alleged that defendants based their whole claim of title on a deed conveying the partnership property of a firm formerly composed of plaintiffs, and that the land in suit was plaintiffs’ individual property, subsequent counts based on other agreements in relation to the property, to which defendants were parties, do not state a cause of action and are open to special exception.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Action by I. A. Dye and another against the Livingston Lumber Company. From a judgment sustaining a demurrer to the petition, plaintiffs appeal.
    Reversed and remanded.
    Holshousen & German and T. F. Meece, all of Livingston, for appellants. Hill & Hill, of Livingston, for appellee.

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

   LEVY, J.

This is an action in trespass to try title to certain lands and for damages for timber taken therefrom. The petition has the formal statutory allegations of trespass to try title, and in addition thereto alleges and sets out deeds to a common source of title under which both the plaintiffs and defendant assert title to the lands in controversy, and further alleges .that the only claim defendant has or is asserting to the land is through and by virtue of a certain instrument in writing, which is set out in full. "The defendant answered by general demurrer and special exceptions, besides other pleas. The court sustained the demurrer and certain special exceptions to the petition, and the appeal is to revise these rulings of the court.

The demurrer is directed to the third and fourth and the sixth and seventh paragraphs of the petition, wherein was alleged and set out the particular claim of the defendant and the plaintiffs to the lands sued for. It appears from the petition that appellants Kelly and Dye formed a sawmill co-partnership under the name of the Livingston Lumber & Manufacturing Company. Prior to the partnership Kelly and Dye separately acquired by deeds the lands in suit, which deeds are set forth. On September 10, 1902, this copartnership, through the partners, executed an instrument in writing by the terms of which there was passed, for thé consideration therein specified, to the Livingston Lumber Company, a corporation, the following: “All of the property and assets of every kind and nature of said Livingston Lumber & Manufacturing Company.” Appellants sue as individuals, alleging, as to the land in suit, “that the Livingston Lumber & Manufacturing Company had no title or interest in said lands, but the same were the property of the said I. A. Dye and C. B. Kelly.” The' instrument of September 10, 1902, purported on it face, and in legal effect operated, we think, to pass and vest in the Livingston Lumber Company, a corporation, the title to all the real and personal property of the Livingston Lumber & Manufacturing Company, a copartnership, but did not purport or operate to pass the distinct and separate property, which was not copartnership property, of the members of the partnership. And in. legal requirement a further conveyance was not necessary in order to pass to the Livingston Lumber Company, a corporation, the copartnership property of the Livingston Lumber & Manufacturing Company. And in view of the allegation that the property in suit was not copartnership property of the Livingston Lumber & Manufacturing Company, which on demurrer must be taken as true, the petition on its face sufficiently presented, as against a demurrer, an actionable controversy. If, under the allegations, the lands sued for were not partnership lands of the Livingston Lumber & Manufacturing Company, but the distinct and private lands of the individual members of that partnership, then, assuming as true the allegation that defendant claims only under the instrument of 1902, the appellants were legally entitled to recover against appellee.

But if the lands in suit were, on a trial, shown to be the copartnership lands of the Livingston Lumber & Manufacturing Company,' then'it would follow as a matter of law' that appellee would be entitled, in view of the instrument of 1902, to a judgment. And in view of the construction given the instrument of 1902, which is pleaded as the only claim of appellee to the lands sued for, the allegations shown in paragraphs 6 and 7 of the petition would not legally avail appellants, as placing any title in them, even if proven as alleged. For if by legal force and effect of the instrument of 1902 only partnership property of the Livingston Lumber & Manufacturing Company was undertaken to be passed and did pass to the Livingston Lumber Company, a corporation, then the rights of appellants and the corporation would be limited to the controversy of fact of whether or not the property sued for was the partnership property of the Livingston Lumber & Manufacturing Company or the distinct and private property of the individual members of the partnership. And, if it were established that the lands sued for were the distinct and private property of the individual members of the partnership, then appellee would conclusively have no such claim or title to the premises as it could lei gaily make subsequent or any agreement of disposition about, as pleaded in such paragraphs above referred to. Likewise, if it were established that the lands sued for were partnership property of the Livingston Lumber & Manufacturing Company and not the distinct and private property of the individual members of the partnership, then appellants would conclusively, in view of the instrument of 1902, have no title or claim in the property as they could legally make subsequent agreement or any contract about, as pleaded in said sixth and seventh paragraphs. Therefore the entire petition was not subject to a general demurrer. And the elimination of the sixth and seventh paragraphs of the petition by special exception, which we think was correctly ruled by the court, nevertheless left remaining, under the other paragraphs, a cause of action sufficiently stated.

As the general demurrer and special exception No. 1 were' improperly sustained, the assignments presenting the errors are sustained, and the judgment is reversed, and the cause remanded.