author: MOURSUND, J.

text:
    BROWNE v. FECHNER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1913.
    On Motion for Rehearing, June 30, 1913.)

      1. Judgment (§ 256) — Verdict.
    While a judgment must conform to the verdict, it need not literally follow the verdict, but must be rendered in accordance with the disposition of the issues as made.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    2. Trial (§ 343) — Verdict—-Construction.
    The pleadings and charge may be looked to in order to ascertain the meaning of the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.]
    On Motion for Rehearing.
    3. Appeal and Error (§ 837) — Verdict — Construction.
    In construing a verdict, the appellate court cannot look to the evidence to determine upon what theory it was rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §.§ 3262-3272, 3274-3277, 3289; Dec. Dig. §, 837.]
    4. Tbial (§ 343) — Verdicts—Construction —Aid by Implication.
    Any facts arising by necessary implication from facts found by the jury will be considered as found by them so as to aid the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.]
    5. Trial (§ 343) — Infringement op Right-Verdicts — Construction.
    While a verdict should be given a liberal construction, the courts should be careful not to usurp the functions of the jury.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.]
    6. Trial (§ 329) — Sufficiency op Verdict-Failure to Find on All Issues.
    Plaintiff sued defendant upon a note which' he had executed in favor of a firm of which plaintiff had'been a member, it appearing that after the execution of .the note plaintiff withdrew and received the note as part of the proceeds. Defendant set up that he had paid the note to the old firm after dissolution, and asked for judgment over against them for any amount which might be recovered against him. The court charged the jury that if defendant paid the note to the firm, and if at the time of payment it was owned by plaintiff, then judgment should be in favor of plaintiff, with a judgment over against the members of the old firm. The jury found for plaintiff alone, but expressed no finding on defendant’s cross-action. Held, that as the court could not look to the evidence to determine whether the verdict had been rendered under the charge set out, the verdict will not support a judgment not disposing of all the issues submitted; there being no ground for an implication that the jury’s silence was a finding that plaintiff had not paid the note.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    Appeal from Karnes County Court; C. L. Bell, Judge.
    Action by R. H. Feehner and another against W. W. Browne, who cross-complained against Tewes & Richter. From a judgment against defendant Browne alone, he appeals.
    Reversed and remanded.
    Searcy & Browne, of San Antonio, and M. B. 'Little, of Karnes City, for appellant. Williamson & Klingemann, of Karnes City, for appellees.

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

   MOURSUND, J.

R. H. Feehner and C. W. Rzeppa sued W. W. Browne upon a promissory note for $641.03, executed by the latter, payable to the order of Tewes & Richter, dated June 2, 1910, due September 1, 1911, bear-lug 8 per cent, interest, and providing for attorney’s fees. It was alleged that said note was given hy Browne in payment for goods bought by him from Tewes & Richter prior to January 1, 1910; that at the time said goods were bought the firm of Tewes & Richter was composed of Ed Tewes, L. W. Stieren, O. W. Rzeppa, and R. H. Fechner; that such firm was dissolved January 1, 1910, but by mutual consent remained the joint owners and holders of the claims due said firm prior to January 1, 1910, and therefore became the joint owners and holders of said note; that on or about November 17, 1911, said Ed Tewes and L. W. Stieren transferred all their interest in said note to the plaintiffs ; that the note was unpaid except to the extent of $132.60, paid July 1, 1910. Browne answered, with a general denial, and a plea of payment, containing substantially the following allegations: That it was understood and agreed at the time the note was given and thereafter during the cotton season of 1910, which lasted from about August 1, 1910, to December 1, 1910, by9and between defendant and the firm of Tewes & Richter, said firm acting through L. W. Stieren, a member thereof, that for all cotton sold by defendant to Karnes City Ginning & Milling Company during said season the price to be paid for said cotton should be credited on the note sued upon, or upon whatever indebtedness was owing to said firm by defendant, for open account or otherwise; that defendant sold to said gin company, and delivered the gin slips to Tewes & Richter to be credited to defendant’s account, during said cotton season, more than enough cotton to pay said firm all that was owing to them by defendant, whether on said note or upon open account, but that he was not given credit for said amounts; that he paid said firm $120 cash during said season; that defendant did not know who composed the firm of Tewes & Richter during the cotton selling season of 1910, or on June 2, 1910, or at the time of filing answer, and therefore prayed that the firm of Tewes & Richter be made a party defendant, and that citation issue for said firm, and if plaintiffs recovered any judgment against defendant, then that defendant have judgment for the same amount over against the firm of Tewes & Richter. Ed Tewes, L. W. Stieren, E. H. Schmuck, and O. H. Porter, composing the firm of Tewes & Richter on December 4, 1912, answered by a special exception, and a general denial. Plaintiff filed a supplemental petition, denying all allegations of defendant Browne’s answer, and also filed a trial amendment alleging that Tewes & Stieren had transferred all their interest in the note to Fechner alone, instead of Fechner & Rzeppa, as alleged in their original petition. Upon trial the jury returned the following verdict: “We, the jury, find a verdict in favor of the plaintiffs, R. H. Fechner and C. W. Rzeppa, and against W. W. Browne, defendant, for the amount of the note, less credit, with interest at 8 per cent., and 10 per cent, additional attorney’s fees, making a total of $694.36.” Judgment was thereupon entered for plaintiffs against Browne, and that the defendants Tewes & Richter go hence without day.

The judgment of the court is attacked by the first assignment, on the ground that the verdict made no disposition of the cause of action pleaded by Browne against Tewes & Richter, yet judgment was rendered in favor of said firm. The second assignment complains because the court accepted the verdict although same was insufficient, in not disposing of the issue between Browne and Tewes & Richter. The third assignment raises the same questions as the first and second.

The verdict does not make any express finding on the cross-action filed by Browne against Tewes & Richter, and appellees, in support of the action of the court in rendering judgment disposing of all issues, say that the verdict necessarily constituted a finding against Browne on his action against Tewes & Richter. While the judgment must conform to the verdict, it is well settled that it need not literally follow the verdict, but must be rendered in accordance with the disposition of the issues in the case as made by the verdict. The pleadings and charge may be looked to in order to ascertain the meaning of the verdict; that is, the intention of the jury.

The court instructed the jury, in substance, that if Browne executed the note, and ifiain-tiffs were the owners thereof, and it was unpaid, except $132.60, then to find for plaintiffs for the amount due on the note, including interest and attorney’s fees; that if they found that Browne paid the note, as alleged in his answer, to Tewes & Richter during the cotton season of 1910, and by paying $120 cash, then to find in favor of Browne; that if they found Browne did pay the note to Tewes & Richter and at the time of such payment it was owned and held by plaintiffs, then to find in favor of plaintiffs, and to further find for a like amount in favor of Browne over and against the firm of Tewes & Richter. The jury was required to return a verdict for Browne, if he paid the note to Tewes & Richter, unless at the time of payment plaintiffs were the owners of the note, in which event the jury was instructed to return a verdict for plaintiffs against Browne, and a verdict over for Browne against Tewes & Richter. The verdict was in favor of plaintiffs without any verdict over in favor of Browne. This we think must necessarily be construed as a finding that no payment was made to Tewes & Richter by Browne, because if such payment was made, and plaintiffs were not the owners of the note at the time, the jury was instructed to find for Browne, and if it was made at a time when plaintiffs owned the note, then the jury was instructed to return a verdict over against Tewes & Richter in favor of Browne.

The verdict is elaborate, and indicates that the jury fully understood the charge of the court, and scrupulously sought to follow the same. As such a verdict was authorized if the jury found no payment to Tewes & Richter was made, and was only authorized in such event, we must conclude that the jury either so found, or omitted, in express violation of the charge of the court, to find a judgment over in favor of Browne. There being nothing to indicate a violation of the instructions, we think the verdict must be construed as a finding by necessary implication that no payment was made of the note, and therefore that Browne was liable to plaintiff and had no cause of action against Tewes & Richter. The verdict disposes of the issues and the parties, and was sufficient to support the judgment. Fox v. Robbins, 70 S. W. 601; McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 g. W. 231; Rushing v. Lanier, 51 Tex. Civ. App. 278, 111 S. W. 1090; Pearce v. Bell, 21 Tex. 692; Railway v. James, 73 Tex. 18, 10 S. W. 744, 15 Am. St. Rep. 743; Jones v. Ford, 60 Tex. 131.

No complaint is made of the charge, and we therefore assume it was satisfactory to appellant.

There is no merit in the other assignments of error.

The judgment is affirmed.

On Motion for Rehearing.

We are not permitted to look to the evidence in testing the verdict, as has been repeatedly held by our courts; and, while no issue is made by the pleadings of the parties regarding ownership by plaintiffs of the note during the cotton season of 1910, we are not permitted to find that no such issue was made by the evidence. Plaintiffs’ petition shows that they, as members of the old firm of Tewes & Richter, each owned a one-fifth interest in the note during said cotton season, and one of them purchased the interests of the other partners in November, 1911. If the evidence corresponded to the pleadings, the jury doubtless were at some loss to understand the charge, but, as we are not allowed to aid the verdict by examiniug the evidence, we must consider the verdict as if there was evidence from which the jury could find ownership by plaintiffs at the time stated. When so considered, the question follows: Does the absence of a finding over in favor of Browne against Tewes & Richter necessarily show that the jury found Browne had not paid the note to any one? Paragraph 3 of the charge reads as follows: “But if you find from the evidence in this case that the defendant W. W. Browne did, as alleged by him, pay said note to the firm of Tewes & Richter, and at the time- of such payment, if you say the same was paid, said note was owned and held by plaintiffs R. H. Fechner and O. W. Rzeppa, then and in that event you should find in favor of plaintiffs for the amount due on said note, including principal, interest, and attorney’s fee, less the sum of $132.60, as alleged by plaintiffs, has been paid on July 1, 1910. However, you shall not calculate interest on said $132.60 from and after January, and should you so find, you will further find for a like amount in favor of defendant W. W. Browne, over and against defendant the firm of Tewes & Richter, said firm being composed of, the following parties, viz.: Ed Tewes, L. W. Stieren, E. H. Schmuek, and O. H. Porter, and so say by your verdict.” The verdict was a general verdict for plaintiffs against Browne. As we cannot look to the evidence, we cannot say that the jury did not return it under the above paragraph, unless we so say because no verdict over accompanied the same.

The question arises to what extent verdicts may be aided by implication. It is clear that any facts arising by necessary implication from facts found by the jury will be considered as found by the jury. The cases of Jones v. Ford, 60 Tex. 127, and McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 S. W. 231, are cases of that character. When we consider implications to be drawn from a failure to find facts, we experience much difficulty in determining to what extent we may go. In the case of Pearce v. Bell, 21 Tex. 692, it was held that a verdict for plaintiff for a sum of money authorized judgment for foreclosure of mortgages as well as for the debt. The principal portion of the debt was evidenced solely by a mortgage, so the court concluded that a finding for such debt necessarily constituted a finding in favor of the validity of the mortgage. The remainder of the debt was evidenced by a note and a mortgage, both attached to the petition and made part thereof, and the court said that, as only a general denial, not under oath, was pleaded, there could be no issue of their execution, and no objection to their admission on the ground of variance, and concluded that by examining the pleadings it was manifest the jury found in favor of plaintiff upon this mortgage as well as upon the note. The opinion does not show what the charge of the court was. It will be noted there was a plea in reconvention, but no complaint was made because the verdict did not specifically dispose of such plea.

In May v. Taylor, 22 Tex. 350, the suit was upon a note and mortgage, made a part of the petition. The court instructed a verdict for the debt, which being returned, judgment was entered for the debt and for foreclosure of the mortgage. The Supreme Court said: “The province of the verdict is to declare the facts upon which the judgment is to be predicated. The existence of the mortgage, as well as the note, was put in issue, and the entire omission of a finding upon the mortgage is fatal to the judgment, so far as it relates to the mortgage.” In that case the issue of foreclosure of the mortgage was not submitted to the jury. In the cases of Preston v. Breedlove, 45 Tex. 50, and Bedford v. Rayner, 13 Tex. Civ. App. 618, 35 S. W. 931, it was held that a verdict for the debt alone did not support a judgment for the foreclosure of the lien as well as for the debt.

In the case of Moore v. Moore, 67 Tex. 293, 3 S. W. 284, the jury returned a verdict in favor of defendant for half of the land claimed by him, upon which judgment was entered in favor of defendant for half of the land and in favor of plaintiff for the other half. This was held erroneous, the court saying: “It may be conceded that it matters not how a finding is expressed, so that the meaning of the jury is clearly tangible, and it may be that what is not expressed may be implied, provided the implication be a necessary deduction from that which is directly stated. There is no such irresistible implication in the verdict in this case. It may be that the court correctly interpreted the language of the jury, or it may be that they agreed only that defendant was entitled to one half of the land, and failed to agree upon the issues involving the question of title to the other half. As to the true construction of such a verdict, neither the lower court, nor this court, is permitted to speculate. The verdict must find all the issues made by the pleading in language which does not admit of mistake.” This case has been often cited with approval upon the proposition laid down therein that the parties are entitled to have the jury pass upon all issues controverted by the pleadings, and, no matter if the evidence be undisputed upon issues not found, the court cannot render judgment without usurping in part the functions of the jury.

In the case of Railway v. Hathaway, 75 court said: “It is not difficult to make verdicts express the conclusions of the jury; and, while they may be liberally aided by the contents of the record, and enforced when, if so aided, there can be no uncertainty as to the intention of the jury, mere conjecture cannot be resorted to.”

In the case of Ablowich v. Bank, 95 Tex. 431, 67 S. W. 79, the court instructed a verdict for plaintiff upon the note and mortgage unless they found for defendant upon another issue, and gave a form of verdict to be used if they found for plaintiff. The jury followed the form as far as it related to the debt, and omitted the part relating to the foreclosure of the mortgage. Judgment was entered for the debt and for foreclosure of the mortgage lien. The Supreme Court held this was error, saying: “When a jury has been demanded by either party, he is entitled to have every material issue made by the pleading and the evidence submitted to that jury, and the trial court cannot enter a judgment upon a verdict which fails to pass upon any material issue submitted to the jury, unless it be in case of a special verdict, which is provided for by statute.” The court held that there was, not only nothing to indicate that the jury found for the foreclosure of the mortgage, but, on the contrary, by using a portion of the form given by the court, and deliberately omitting the remainder, they decided against giving plaintiff a foreclosure of his mortgage. The verdict itself, by reason of its form, furnished conclusive evidence that the issue of foreclosure of mortgage lien was intentionally omitted, and the court held this to constitute a finding against the mortgage. Had the verdict not followed the prescribed form, there would be nothing upon which to base the theory that the jury considered and decided against the foreclosure of the mortgage except the refusal to obey the charge of the court to find for such foreclosure. If such refusal alone constitutes a finding against the lien, then in all cases in which the jury is instructed that, if they found for plaintiff upon the debt, to also find for foreclosure of lien, a refusal to find the lien will likewise constitute a finding against the lien. We are of the opinion that when there is nothing to indicate that the disregarding of the charge was intentional, it would be dangerous to give to the failure to find upon the issue of foreclosure of lien the effect of a finding against the lien, instead of treating it as a failure to pass upon the issue. The case of Ablowich v. Bank is referred to in the cases of Martin v. Berry Bros., 87 S. W. 712; Morrill v. Bosley, 40 Tex. Civ. App. 7, 88 S. W. 523; City of Ft. Worth v. Williams, 55 Tex. Civ. App. 292, 119 S. W. 137. In the first two eases the failure to find for the lien is simply referred to as not sufficient to support a judgment of foreclosure, but it is not held that it would constitute a finding against the lien under the facts of those cases.

In the case of Ellis v. Littlefield, 41 Tex. Civ. App. 318, 93 S. W. 171, it was held that where, in a suit on a note, the court charged that before the jury could find for plaintiff, they must find against defendants, on their plea in abatement, a verdict in plaintiff’s favor on the note necessarily constituted a finding against defendants on such plea in abatement. A form for each verdict was furnished the jury. The verdict found by the jury was by express direction given the same meaning as if .they had found specifically against defendants’ plea in abatement. See, also, Taylor v. Ry. Co., 80 S. W. 261; Black v. Feeney, 137 S. W. 1161.

In the case of Fox v. Robbins, 70 S. W. 601, it was held that where the court instructed the jury in case they found there was no assumption of a debt to so state in their verdict, and the verdict was silent on the issue, it included a finding that the debt was not assumed. This decision is later than the Ablowich v. Bank Case, and a writ of error was denied. This ease virtually holds that Silence on the part of the jury may be given the effect of an affirmative finding, if the court instructs the jury that such effect will be given to their failure to find on an issue.

In the case of Carter v. Bolin, 30 S. W. 1085, in which it afterwards developed that the verdict was incorrectly copied into the transcript, Judge Key stated the facts substantially as follows: Carter sued Joe Bolin as maker, and J. P. Bolin as indorser, on five negotiable vendor’s lien notes, asking for foreclosure of lien. Mrs. J. P. Bolin intervened, claiming the land as her separate property, and asking that the deed by her husband' to Joe Bolin be canceled, and title vested in her. Carter pleaded he was a bona fide purchaser of the notes without notice of Mrs. Bolin’s rights. The court said: “As the case was submitted to the jury, a verdict could have been rendered awarding the land to Mrs. Bolin, and also finding for the plaintiff, Carter, against J. P. Bolin and Joe Bolin for the amount of money shown to have been due by the face of the notes; because a charge was given instructing the jury that if they believed from the evidence that at the time of the execution and indorsement of the notes J. P. Bolin and Joe Bolin knew that the land described in said notes was the separate property of Mrs. Frances T. Bolin, and with such knowledge executed and indorsed said notes, said J. P. Bolin and Joe Bolin would be estopped from setting up the failure of consideration, and, if the jury so found, they should find for the plaintiff the amount sued for. The verdict of the jury reads as follows: ‘We, the jury, find for the intervener as against the plaintiff, H. G. Carter, and Joe Bolin, defendant. [Signed] E. F. McCreary, Foreman.’ On this verdict the court not only rendered judgment in favor of Mrs. Frances T. Bolin, awarding to her the land, and canceling the deed from J. P. Bolin to Joe Bolin, but' adjudged and decreed that. the plaintiff, H. G. Carter, ‘take nothing by his suit against the defendants, J. P. Bolin and Joe Bolin, and as to said Carter said defendants go hence without day, and recover of said Carter all costs by them in this behalf incurred, for which they may have their execution.’ This part of the judgment is not supported by the verdict, and for that reason we reverse the ease.” Judge Key, in this case, expresses doubt of the correctness of the cases of Railway v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743, and Kinkier v. Junica, 84 Tex. 116, 19 S. W. 359, and says: “On this subject it is believed that the correct rule is that where the finding of the jury, under the issues submitted to them, could not possibly have been arrived at without also finding a fact not expressed, but necessarily included in the verdict, the verdict may be construed as finding such other fact, and judgment may be rendered accordingly, but that this is the extent and limit of intendments on the subject.”

In the case of Oklahoma City & T. Ry. Co. v. Magee, it was held that a verdict finding only for damages for plaintiff, in a suit of trespass to try title and for damages, did not authorize a judgment for plaintiff for the 56-foot strip not disclaimed by defendant. It appears to us that if the damages had been claimed upon the 56-foot strip alone, the verdict for same would necessarily carry with it the finding that plaintiff was entitled to recover the land, but if the damages might have been awarded as accruing to the land disclaimed by defendant, the finding for damages would not imply a finding that plaintiff was entitled to the 56 feet. In the opinion it is said: “The question of title to the 56 feet was then an issue under the pleadings, and if it be conceded, as it may, that the court did not err in instructing the jury that plaintiff had title to the land, nevertheless there was no finding by the jury in obedience to such instruction, without which the court is powerless to enter judgment. The court may instruct a verdict, but he cannot return one.” 132 S. W. 902.

In the case of Williams v. Smith, 98 S. W. 916, the court said: “It is definitely settled by the decisions that, where a general verdict has been returned by the jury, such verdict must constitute the basis of the judgment. In such case ‘the court cannot look to the evidence on which the verdict was found in order to determine what judgment to render, but must look alone to the verdict, foi it is upon that which the jury have found, not what they might or ought to have found, that the court proceeds to render judgment.’ ”

In the case of Hedrick v. Smith, 146 S. W. 305, the jury returned a verdict in favor of defendant for each item of his plea in recon-vention, and failed tp mention plaintiff’s claim for rents. It was held that the verdict did not dispose of all the issues. The opinion does not show what instructions were given the jury.

In the case of Prichard Rice Milling Co. v. Jones, 140 S. W. 817, a verdict for plaintiff was held by this court to dispose of defendant’s cross-action adversely to defendant, in view of the charge of the court. See, also, Bemus v. Donnigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Crain v. Ins. Co., 56 Tex. Civ. App. 406, 120 S. W. 1098.

In the case of McGrew v. Norris, 140 S. W. 1143, it was held that a verdict reading, “We, the jury, find against plaintiff for defendant on his counterclaim the sum of $100.00,” did not dispose of the issue of plaintiff’s claim. In Knox City Milling Co. v. Bank, 141 S. W. 134, a verdict for plaintiff for amount prayed for in his petition was held not to dispose of the counterclaim.

It will be seen from the foregoing review of cases that the courts have experienced great difficulty in determining when ver-diets dispose of the issues in a case. The rule laid down in Moore v. Moore has not always been followed. In many cases silence with respect to an issue has been given the effect of a finding upon the issue in view of the verdict found and the nature of the charge. While realizing the trend towards liberal views on the subject, we must be careful not to usurp the functions of the jury. In this case the verdict can only be held to dispose of the cross-action of Browne against Tewes & Richter upon the theory that the failure of the jury to find a verdict over shows conclusively that the verdict actually returned was not found on the issue submitted in the third paragraph of the charge. If the jury found the verdict under that paragraph, they disregarded the instructions of the court in not also finding a verdict over. There is nothing in the language of the verdict, as far as it goes, to indicate under which paragraph of the charge it was arrived at. The charge does not inform the jury that, if they fail to find a verdict over, such failure will be given the effect of finding that the verdict was arrived at under the other paragraphs of the charge. The failure to find a verdict over may have been because the jury found for plaintiff under the theory that Browne had not paid any one, but we do not Imow such to be the case by examining the pleadings, charge, and verdict. We can only say the jury ignored or overlooked the instruction, or it found for plaintiff under other paragraphs of the charge. There is nothing to indicate that the failure to find a verdict over was intentional. It may have been by inadvertence; the provision in the charge for verdict over may have been overlooked. When there is nothing to indicate that a matter was considered and intentionally omitted, we believe the safe rule is to hold that such omission is a failure to find on the issue.

True, there is only a short step between the holding in the Ablowich Case, to the effect that where a verdict by its language shows a deliberate refusal to find for plaintiff on an issue, it is to be taken as a finding for defendant, and holding that the same effect will be given a verdict, which, not by its language, but by disregarding the charge of the court, indicates a refusal to find for plaintiff upon an issue. It is also difficult to see any difference in principle in holding silence to be an affirmative finding because the court says it will be so considered and a holding that silence upon an issue will be taken as a finding where the court instructs the jury to make a certain finding, but does not tell 'them what effect will be given their failure to so find. While in one case the jury is warned what effect will be given to their silence, yet in either case a presumption must be indulged that the jury did not inadvertently omit to consider and pass upon the issue. The giving to silence upon an issue the force and effect of a finding is fraught with some danger of leading to the sustaining of verdicts upon conjecture or speculation, when issues may have been merely inadvertently overlooked, or have been disagreed upon. In this case the verdict omits all mention of the cross-action, and, there being nothing to show that such omission was intentional rather than inadvertent, we conclude that we erred in holding the same sufficient.

Questioris like this could be avoided if the trial courts would, upon the return of a verdict not disposing of the issues, proceed as indicated in article 1981 of Revised Statutes of 1911.

The pleadings in this ease made the issue whether Browne was authorized by Stieren, a member of the old firm, to pay the note to the new firm, and the evidence was conflicting, plaintiffs contending that no such authority was given, and that Browne knew that one of the members of the old firm, not in the new firm, was collecting the debts due the old firm. This issue was not submitted to the jury. If plaintiffs admit that payment to the new firm was payment of the note, then no further necessity exists for keeping the new firm in the case.

Appellant’s motion for rehearing is granted, the judgment affirming the case is set aside, and the judgment of the trial court is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    RUSH et ux. v. FIRST NAT. BANK OF AMARILLO et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1913.
    Rehearing Denied July 5, 1913.)
    Appeal and Error (§ 1126)— Filing Record in Wrong Court — Affirmance on Certificate.
    Judgment will not be affirmed .on certificate, because the record in a case appealable to the Seventh district was not filed therein seasonably, or till after motion for such af-firmance, it having, owing to confusion in the law, the bar and court being in doubt, been seasonably filed in the Second district as the proper place, and sent to the Seventh district shortly after an authoritative determination by the Supreme Court on the question of which court had jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3144, 4429-4431: Dec. Dig. § 1126.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action between the First National Bank of Amarillo and another and J. W. Rush and wife. From a judgment for the latter parties, the former parties appeal. Appellants move to affirm on certificate. Appellees move to have the record considered as filed seasonably.
    Appellants’ motion denied. Appel-lees’ motion granted.

      Cooper, Merrill & Lumpkin, of Amarillo, J. A. Stanford, of Waco, and L. C. McBride, of Dallas, for appellants. Madden, Trulove & Kimbrough and Reeder & Graham, all of Amarillo, for appellees.

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

   HUFF, C. J.

The First National Bank of Amarillo and W. H. Fuqua filed in this court December 9, 1911, their motion to affirm on certificate a judgment against J. W. Rush and Mattie E. Rush obtained in the 'district court of Potter county on February 28, 1911.

On the 2d day of March, 1911, a motion for new trial was filed by J. W. Rush and Mattie E. Rush, which was overruled March 28, 1911, to which action of the court Rush and wife excepted and gave notice of appeal to the Court of Civil Appeals, Second Supreme Judicial District of Texas, at Ft. Worth. Thereafter, on the 17th day of April, 1911, they filed their appeal bond. It is alleged that more than 90 days have elapsed since perfecting the appeal, and'that the ap-pellees have failed to file in this court any transcript of the record, and appellants therefore ask for an affirmance of the case. This motion is contested, and request is made that the record of Rush et ux. v. First National Bank of Amarillo et al., in cause No. 176, filed in this court December 12, 1911, be considered filed as of proper date, or that the clerk be ordered to file the same within 90 days from the date of perfecting the appeal. It is made to appear in this contest that the record was filed with the clerk of the Court of Civil Appeals, Second Supreme Judicial District, at Ft. Worth July 12, 1911, admittedly within 90 days from the date of perfecting the appeal. Counsel for appellees in this motion and for the appellants in the appealed case show by affidavits that they were not aware that what is known as House Bill No. 25, creating this court, was in fact the law at the time of filing the record in the Second district. They set out at some length the history of the creation of this court and the decisions of the courts with reference thereto. The Thirty-Second Legislature created the Seventh and Eighth supreme judicial districts by an act dated the 10th day of March, 1911, which was signed by the Governor April 3, 1911, and was published in the Session Laws of that Legislature at page 269. At the same session the Legislature passed what is known as House Bill No. 25, by which this court was created. This bill was vetoed by the Governor April 3d; but this, being more than 20 days after adjournment, was ineffectual. On November 10, 1911, the Supreme Court held in the case of Southern Pacific Railway Company v. Sorey, 104 Tex. 476, 140 S. W. 334, that this court was controlled by Bill No. 25. This bill was not published in the general session acts, and its provisions were not known to the bar generally or to the attorneys for Rush and wife, and, in perfecting their appeal and in filing the same in the Court of Civil Appeals, Second Supreme Judicial District, Rush and his attorneys acted under the law creating the two courts, approved by the Governor and published. This court, in the case of Keator v. Whittaker, 140 S. W. 120, decided October 13, 1911, held that, appellants therein having perfected their appeal prior to June 9, 1911, the date the law went into effect, the" appeal was returnable to the Second district, citing the case of Gordon v. Rhodes, 104 S. W. 786, as authority for so holding. In Keator v. Whittaker, this court certified certain questions to the Supreme Court upon motion for rehearing and after the Sorey Case, supra, was published. The Supreme Court answered the questions so certified February 7, 1912, 104 Tex. 628, 143 S. W. 607, holding that under section 4 of Bill No. 25, creating this court, that appeals were returnable to this court after the law took effect June 9, 1911, and distinguished Gordon v. Rhodes, supra. Potter county, before the establishment of this court, was in the Second district; but, at the time of the appeal and the filing of the record in that district, said county was and is now in the Seventh district. On the 11th day of December, 1911, the attorneys for Rush filed application in the Second district for an order transferring the case to this court, which order was accordingly granted by that court, and the case brought to and filed in this court.

The appellees herein show that, owing to the confusion in the law and the decisions of the courts, they could not determine where to file the record, and that so soon as they reasonably could, after learning of the holdings in the Sorey Case, supra, they filed the record in this court. The record was not filed in this court until after application to affirm on certificate. Under the holding of the Supreme Court, the record should have been filed in this court at the time it was filed in the Second district.

After carefully reading the various affidavits by the attorneys and clerks, we have concluded the case should not be affirmed On certificate, and that the motion to grant an order, directing the clerk of this court to file the records in the case of Rush et ux. v. First National Bank of Amarillo et al., as of the date of its reception, should be granted. There are several eases which have been pending upon motion in this court, together with this case, for some time, awaiting answers by the Supreme Court to certified questions by this court in the case of Andrew Heflin v. Eastern Railway Company of New Mexico, which questions have been answered and certified to this court, hence the delay in disposing of the motion in this case. We think the appellees herein have shown good cause for the delay. It would be, in our opinion, inequitable, under the confusion heretofore existing, to deprive a party of his right of appeal, when this court, as well as an able bar, were in doubt as to where the record should be filed, and Indeed it having been the opinion of this court that under the law the Second district was the proper place to file the record.

The motion of appellants, the First National Bank of Amarillo and W. H. Fuqua, to affirm on certificate is overruled, and the motion of J. W. Rush and wife granted, ordering that the record in the case of J. W. Rush et ux. v. First National Bank of Amarillo and W. H. Fuqua be filed as of December 12, 1911, and the cause placed upon the trial docket for submission.


text:
    TANDY v. ASTLE.
    (Court of Civil Appeals of Texas. Amarillo.
    June 14, 1913.)
    1. Animals (§ 100) — Sufficiency of Evidence — Inclosure of Field.
    In an action to recover damages caused by cattle which the owner had turned into plaintiff’s field, evidence as to the inclosure of the field ¡helé sufficient to justify a refusal of defendant’s request for a directed verdict, because the field was part of a common inclosure in which the defendant had a right to pasture cattle.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 354-366, 380-385, 395, 397-401, 409-419; Dec. Dig. § 100.]
    2. Animals (§ 100) — Sufficiency of Evidence-Right of Pasturage.
    In an action for trespass by pasturing cattle upon plaintiff’s field, evidence ¡helé insufficient to show that the defendant had acquired any right of pasturage, either from the plaintiff’s tenant whose lease had expired prior to the time the cattle were driven into the field, or from one to whom plaintiff had sold the feed, but not the right of pasturage. .
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 354-365, 380-385, 395, 397-401, 409-419; Dec. Dig. § 100.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by William Astle against A. H. Tandy. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    H. E. Hoover, of Canadian, for appellant. Crudgington & Works, of Amarillo, and Baker & Sanders, of Canadian, for appellee. ■

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

   HUFF, C. J.

The appellee, Wm. Astle, sued appellant, A. H. Tandy, for damages for trespass on appellee’s land by the cattle of appellant. We adopt the statement of the issues as set out by appellant in his brief:

“The case was tried upon the plaintiff’s third amended original petition, in which the plaintiff alleged in substance that on the 13th day of January, 1910, he was lawfully seised and possessed of section No. 222, block 43, and the south half of section No. 307, same block, situated in Ochiltree county, and had the same inclosed by a good and sufficient fence, and had standing thereon 200 acres of Kaffir corn, and maize stalks, and a number of growing trees; that on January 13, 1910, defendant, without plaintiff’s consent, took possession of said premises, and converted it to his own use and benefit, and drove a herd of cattle over and through the fence of plaintiff and herded and pastured them thereon until about the 3d of March, 1910; that the cattle roamed over said cultivated land, broke down the trees, and damaged the realty, and sued for actual damages in the sum of $2,120, and exemplary damages in the sum of $500, which, however, was abandoned before the case proceeded to final trial.
“The answer of the defendant consisted of a general denial and plea of not guilty; especially pleaded that the lands mentioned were not separated by a good and sufficient fence from other lands, but that said lands at all times were not segregated from the other lands, but constituted a part of the common inelosure of 10 sections, and that the plaintiff, if otherwise entitled to recover, was not entitled to exclude the defendant from said common inclosure. The defendant further pleaded that he had purchased the right to turn his cattle in said inclosure and to pasture the lands in controversy from one J. R. McCurdy; that McCurdy had for a long time been in possession of the premises, and had raised the crop thereon, and according to his custom for previous years sold to this defendant the right to turn his cattle therein. The defendant further pleaded that, the said McCurdy being in the possession of said place, prior to the defendant turning his cattle in said inclosure, the plaintiff, acting through those who represented him in the matter, sold the right of pasturage therein to one Dan Wentz; that Wentz sold the same to McCurdy, and McCurdy sold the same to the defendant for a valuable consideration, which the defendant paid; that Wentz purchased such right from the plaintiff and those who acted for him with the expressed understanding and agreement that the said Wentz and those who might purchase from him should have the right to sell such pasturage to the defendant, and that he, prior to the time of turning into said premises and inclosure, purchased said right, which should be passed to Wentz, etc'. The defendant then set up the written contract entered into between Wentz and W. F. Shipp, attorney at law, representing the plaintiff, and stated that the same did not contain all of the terms of the contract, by either inadvertence, fraud, or mistake on the part of R. T. Correll, who drew the contract between Wentz and Shipp, and that it was fully understood and agreed that Wentz obtain the right of pasturage and the right to sell the same for others to pasture therein, and especially the defendant, and that Wentz thereby acquired the right not only to said pasture, but that it was agreed that he might sell and pass said right of pasturage to the defendant,. including the right to turn his cattle in said pasture, and to graze upon said fields and premises. The said pleadings set out fully the mistake and the true contract as it was intended, to which no exception was made or sustained.”

The case was tried before a jury, and resulted in a verdict and judgment in favor of appellee against appellant for $118.80.

The appellant, by his first assignment, complains of the action of the trial court in .refusing to instruct the jury peremptorily to return a verdict for him, because appellee wholly failed to prove his lands were separated by a good and sufficient fence from other lands, and because the land was but a part of a common inclosure, and failed to show appellant had any right in said common inclosure, but did show he had a right therein, and further failed to show that appellant did not have other grass or water sufficient in said inclosure to sustain his cattle, or that appellant herded his cattle on the appellee’s land. The court did not err in refusing to give the charge requested. It is admitted that appellee owned the land upon which the trespass is alleged to have been committed. It was segregated by a wire fence from other lands which appellant claimed he had the right to graze. There were inside of appellee’s inclosure two half sections of land, one of which appellant claimed the right to pasture, belonging to Mrs. Fowler, which this court held, in the case of Tandy v. Fowler, 150 S. W. 481, did not have the right to do. The undisputed evidence is that appellant opened gates leading onto appellee’s land and turned in about 800 head of cattle, and that he did so to get the benefit of the stalk fields on appellee’s land, which he asserted he had the right to do. He sought to show that he had some seven or eight sections under a common fence with appellee; but the evidence in this case shows this land was segregated by a cross fence. The testimony further shows that from 200 to 400 acres of the appellee’s land was in cultivation and segregated from his pasture lands by partition fences. The cross fence between appellee’s land and the other sections claimed by appellant he sought to show was down, so the cattle could freely pass over the same. The evidence is to the effect that they were not so until after appellant turned his cattle in the fields. If the land was as appellant claims, he went to useless trouble to open the gates and drive his cattle in on appellee. If the lands were under a common inclosure, all he had to do was to turn them on the sections which he claims to have had leased. We think there can be no doubt but he turned his cattle in to get the benefit of the feed left over after the crop had been gathered by the tenant. We do not think the rule invoked by appellant applies to the facts of this ease. The case of Tandy v. Fowler, supra, grew out of the same transaction, and is decisive of this ease. This case turned on the question whether appellant had purchased the right under appellee’s tenant and McCurdy to pasture the stalk field — that is the real question in the case, and not that appellant and ap-pellee were holding their lands under a common inelosure.

We do not think the evidence raised the issue, and the court properly refused the requested instruction. This case is not one where cattle wandered, strayed, or broke into the inclosure of another because of an insufficient fence or no fence; but here the owner deliberately drove and turned them into the fields of his neighber for the avowed purpose of getting the benefit of a winter pasture on the stalk fields, and for the benefit of the feed left in the fields. If he had no right, it was a trespass knowingly1 and purposely committed. Claunch v. Osborn, 23 S. W. 937; Ohio Wool Growing Co. v. Bogel, 3 Willson, Civ. Cas. Ct. App. § 273; and Dignowitty v. Ballantyne, 3 Willson, Civ. Cas. Ct. App. § 194. For the reasons stated under the first assignment, we overrule the second assignment. The charge requested we do not regard as applicable to the facts of this ease.

The third, fourth, fifth, and sixth assignments of error complain of the action of the court in refusing the sixth special instruction, to the effect that if appellant bought the right to pasture from W. S. Shipp, representing the plaintiff in making the sale, and understood that the person to whom he sold might transfer the right of pasturage to the appellant, and he went into possession and pastured the land under the right so acquired, appellee was not enticed to recover in any sum. The fourth assignment of error is based on the charge as given, because the court told the jury appellant had no legal right to pasture the land, and for the reason the evidence showed that appellant procured the right. to pasture the land from W. F. Shipp. The fifth assignment presents error in said charge, because the right to pasture was an issue under the evidence in the case, and the sixth assignment is that the court’s charge is error, because appellant’s right to pasture the land was an issue made by the evidence and should have been submitted to the jury.

The title to the land is admitted to be in appellee. It appears that one McCurdy was a tenant of appellee on the land, and that his lease expired December 31, 1909. The cattle were turned in on the land in January, 1910. There is no testimony that Mc-Curdy had the right given by appellee to sublet the land or lease it for pasture privileges; on the contrary,- both McCurdy and appellee testified he had no such right. McCurdy testified positively that he sold only to the 31st of December, 1909, and no further, and, as suggested above, he is not shown to have had any authority to sell from appellee. We think the facts substantially the same as in the case of Tandy v. Fowler, supra, which grew out of tlie same transaction, and that appellant secured no right to the pasture from McCurdy, as the tenant of appellee.

One Mr. Wentz purchased the interest of appellee in the feed grown on the place by McCurdy, a tenant of appellee. This sale is evidenced by a written contract between Shipp and Wentz, executed by attorney Shipp, acting for appellee. The written contract does not give the right to pasture the land, but gave the right to remove the feed and other grain thereon. The contention is that through inadvertence, fraud, or mistake, one Correll, who drew the contract, and who at the time was a partner with Shipp, and who had as much right as did Shipp to represent appellee, left out the part of the contract giving the right to pasture the land. The facts we do not think show any fraud, mistake, or inadvertence on the part of Correll; but on the contrary, he told Wentz in buying the feed Wentz would have no right to pasture the land, that the feed was all that he bought. It appears Shipp, after the contract was drawn and signed, asserted to Wentz that under the contract, as drawn, Wentz could pasture the land. It may be remarked at this place the letters of Shipp to appellee at the time showed the right of pasturage was not sold, and that Wentz’s contention was unfounded. Wentz did not request that the contract be corrected in accordance with his understanding; but after he knew it was drawn, conveying only the feed, he paid for the feed, and he did this after Correll told him the contract did not give the right of pasturage. Wentz says he was given the right to sell the pasture to Tandy or Fowler, but he sold to McCurdy, who as tenant of ap-pellee, was then on the place. The contract does not give him the right to sell the pasture, and his right to sell is based on a statement of Shipp that, of course, he should do as he pleased with the feed on the place. In fact, we find no testimony that McCurdy purported to convey appellee’s interest to the pasture on the land or any interest which Wentz said he sold McCurdy. On the contrary, McCurdy says he did not authorize Tandy to use the stalk fields after December 31, 1909, the time of the expiration of the lease. It is not shown that Shipp had the right to sell the pasturage; but, on the other hand, appellee testifies he did not authorize any one to give appellant permission to pasture the land. Under the written contract, appellant had no right to pasture the land. The evidence does not show fraud or mistake sufficient to correct the contract as contended for by appellant. McCurdy did not sell under Wentz’s contract, and there is no testimony showing that he ever knew Wentz was claiming under the contract pasture privileges. McCurdy could not convey a greater term than he had — that is, to December 31, 1909 — and, in fact, had no right to sublet. We do not think appellant showed any right to pasture appellee’s land, and the court correctly refused the requested charge, and he correctly charged the jury that no such right was shown. The claim for exemplary damages was waived by appellee, and the only question submitted was as to actual damages. Appellee’s right to his land being shown, and no right shown by appellant therein lawfully acquired, the appellee was entitled to recover the actual damages sustained by reason of the trespass.

We find no error, and affirm the case.


text:
    HUNKER v. ESTES et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1913.
    On Motion for Rehearing, May 31, 1913.
    On Further Motion for Rehearing, July 5, 1913.)
    1. Appeal and Error (§ 614) — Statement oe Facts — Authentication.
    The statute provides that when a statement of facts has been agreed to by the parties and approved by the judge, the duplicate shall be filed with the clerk of the lower court, and the original sent up as a part of the record on appeal; hence, where there were what purported to be two statements of facts, one marked “original,” but having only the certificate of the court stenographer, with no agreement of the parties, and no approval of the judge indorsed thereon, and the other not marked either “duplicate” or “original,” with no certificate of the clerk that it was one or the other, neither will be considered by the court.
    [Ed. Note. — For other cases, see Appeal and Error, CentDig. §§ 2789, 2790 ; Dec.Dig. § 014 1
    On Motion for Rehearing.
    2. Vendor and Purchaser (§ 281) — Bona Fide Purchaser — Facts Putting on Inquiry.
    Evidence, in a suit to foreclose a vendor’s lien on property in the hands of a purchaser from the vendee, held to sustain a finding that there were sufficient facts known to the purchaser at the time of the purchase which, if pursued with reasonable diligence, would have given him notice that the note sued on had not been paid, and that the vendor’s lien by which it was secured had not been extinguished, and that the deed of release on record, purporting to release them, was a mistake.
    [Ed. Note. — For o'ther cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.]
    3. Vendor and Purchaser (§ 267) — Vendor’s Lien — Release.’
    The land described in a deed was section 82, block 12, certificate 2/251, H. & 6. N. Ry. Co. school land, and the recited consideration was $3,700; $1,500 cash, one note for $1,000, and one for $1,200, and a vendor’s lien was retained in both the deed and notes. A deed of release by the vendor recited that he released section 82, block 12, certificate 2/251, H. & G. N. Ry. Co. school land, from the lien of a note for $2,400. Held, that the deed of release did not release the lien of the $1,200 note described in the deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.]

      4. Liens (§ 1) -Definition.
    A lien is a legal claim or hold on property, either real or personal, as security for the payment of some debt or obligation.
    [Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 1, 4, 23; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, ol. 5, pp. 4184-4153; vol. S. p. 7707.]
    On Further Motion for Rehearing.
    5. Vendor and Purchaser (§ 280) — Action fob Purchase Monet — Complaint.
    In a suit to collect a vendor's lien note, and to foreclose the vendor’s lien on the property in the hands of a purchaser from the ven-dee, it was not necessary for the vendor to allege that the purchaser had notice of the lien, or that he was not a purchaser in good faith.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 784-789, 791; Dec. Dig. § 280.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Suit by J. T. Estes and others against J. Hunker. From a judgment in favor of plaintiffs, defendant appeals.
    Affirmed. Affirmed on rehearing.
    Clinton C. Small and J. L. Lackey, both of Wellington, for appellant. R. H. Templeton, of Wellington, and S. A. Horton, of Oklahoma City, Okl., for appellees.

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

   HUFF, C. J.

We are unable to consider the statement of facts filed in this case. There is what purports to be two statement of facts — one is not a copy of the other. Both were filed in this court February 17, 1913, and both indorsed filed by the clerk of the district court of Collingsworth county, January 4, 1913. One is marked “original,” but this one has only the certificate of the court stenographer, and no agreement indorsed upon it, signed by the parties to the case, and no approval by the judge trying the same. Part of this statement is in question and answer form, and some three or four loose leaves pinned in the record. The other statement is not marked — either duplicate or original — and has no certificate from the clerk of the court that it is either the one or the other. The index calls for certain instruments which are not in the statement of facts. The attorney for appellee cites us in his brief to the pages of the statement of facts for certain instruments not found in the statement, and which the index calls for. The law provides that when a statement of facts is “agreed to by the parties and approved by the judge,” the duplicate shall be filed with the clerk, and the original sent up as a part of the record in the cause on appeal. It will be seen from the above statement nearly every provision of the law has been violated in one or the other of the statements on file. We cannot determine from the record before us that either is a true and correct statement of facts adduced upon the trial. The affirmative evidence, as appears from the face of the statements themselves, is that neither presents the case upon which the trial court passed. It may be said in passing, both parties in this case present the same as if the deed from Estes to White had been duly recorded, and that Hunker had notice thereof. The record fails to show such recording of the deed. It would be useless for us to try to dispose of the case with any degree of justice to either party in the condition in which we find the record. This court has held that a duplicate statement of facts must be filed with the clerk of the court where the case was tried,, and the original sent to this court. As seen, no original is sent to this court, agreed to by the parties, and approved by the judge. Witherspoon v. Crawford, 153 S. W. 633. There is an instrument here which does not appear to be either a duplicate or an original. Whatever it is, the index and the absence of a page from it shows it is not what it purports to be — a true and correct statement of the facts and evidence before the trial court. We cannot permit such total disregard of the statute as well as the rules. The brief of the respective parties evidently cites from a different statement to the one on file in this court. To permit such practice and overlook such a flagrant disregard' to the law and rutes would render the practice in this court too uncertain, and would open the door wide for the mutilation of the records of this court. Personally, the writer believes no statement should ever leave the clerk’s office of the trial court without his certificate, under his seal, that it is the original, and that the duplicate of the same is on file and kept by him in his office. The statement of facts is a part of the record, and should be safeguarded with all the care that other portions of the record are required to be kept. Heflin v. Railway Co. (Sup.) 155 S. W. 188. There is no such statement of facts in this case as we feel warranted in considering, and there is no finding of fact and conclusions of law filed by the trial court, and from an inspection of the transcript, no such error is apparent, requiring a reversal.

The case will therefore be affirmed.

On Motion for Rehearing.

At a former day of this term of court we disposed of this case by affirming it, on the ground that the statement of facts was in such condition that we did not feel that we should consider it. The appellant now brings up the statement filed with the clerk in the court below, and requests that we permit it to be filed and the case considered upon that statement. The appellee joins in this request, and we will therefore consider the case upon such statements so brought up, and the clerk of this court will be ordered to file the same in this court as part of the record in this case. The deed which we mentioned as being pinned to the stenographer’s report filed in this case has, since the preparation of our former opinion, been detached therefrom by some one and pinned into the-statement, signed and agreed to by the attorneys, and approved by tbe district judge. We are unable to ascertain bow or why it was done, or who did it. The act manifests a reckless disregard of the records of this court. It does not become material, except that it places this court in' the light of having misstated the record in its former opinion. The disregard of the law in this particular in this case we believe would justify us in disregarding the statement of facts first filed, or the one brought up by agreement. We cannot too severely condemn such conduct, and refrain from warning that such must not occur again. It should be stated that the three deeds left out of the agreed statement first sent up to this court properly appear in, the one filed with the district clerk and brought up in the motion for rehearing.

On the Merits of the Case.

The appellee J'. T. Estes institutes this suit against Melvin H. White and J. Hunker, on a vendor’s lien note for the sum of $1,200, with interest and attorney’s fees, dated May 11, 1909, due January 1, 1912, executed by Melvin H. White, and payable to J. T. Estes, as a part of the purchase money for section 82, block 12, certificate 2/251, H. & G. N. Ry. Oo. school land. Judgment was rendered for the plaintiff for the amount of the note, interest, and attorney’s fees, against Melvin I-I. White, and a foreclosure of the vendor’s lien on the land as to both Hunker and White. J. Hunker has appealed from the judgment. Appellant, J1. Hunker pleaded general denial, and that he was/ the legal and equitable owner of the land for value and without notice of the vendor’s lien, and specially that appel-lee had executed a release of the vendor’s lien on the land which was placed of record, and that appellee is estopped from setting the same up against appellant and the land. On May 11, 1909, J. T. Estes sold to Melvin IT. White the section of land in question, for the recited consideration of $3,700; $1,500 cash, one note for $1,000, due January 1, 1910, and one note for $1,200, due January 1, 1912, each bearing interest at the rate of 8 per cent, per annum, and at said time White executed the two notes, payable to appellee Estes.- The $1,200 note is the basis of this suit. The vendor’s lien was retained in both the deed from Estes to White and in the note sued on, payable by White to Estes on section 82, block 12, certificate 2/251, H. &. 6. N. Ry. Co. survey in Collingsworth county, Texas.

On the 5th day of March, 1910, Estes executed the following instrument: “State of Texas, County of Goliad. Whereas by deed of date May 11, A. D., 1909, duly recorded in the office of the county clerk of Collingsworth county, Tex., in Book -, page -- thereof, J. T. Estes conveyed to Melvin H. White certain real estate and,premises in the county of Collingsworth and state of Texas, being secs. Nos. 82 and 100, in block 12, certificate Nos. 2/251 and 2/260, H. & G. N. school land, all of which is fully described in said deed and to which reference is here made for a more particular description, retaining therein a vendor’s lien securing the payment of $4,400.00 (forty-four and no one hundred dollars) for which Melvin H. White executed two promissory notes, as follows: First note for $2,000.00 (two thousand and no/100 dollars) and second for $2,400.00 (twenty-four hundred and no/100 dollars); and whereas, said Melvin H. White has made payment on said indebtedness and it is the desire of the undersigned to release all of sec. No. 82 from the above vendor’s lien: Now therefore, I, J. T. Estes, of Goliad and state of Texas, being the legal and equitable owner and holder of said above-described notes, for and in consideration of the payment which I deem sufficient, do hereby release the said sec. No. 82 from the above-described land and declare the same extinguished, in so far as such section is concerned but no further, and that this release is in no manner to affect the lien now existing on the other property above mentioned.”

This release was filed for record July 22, 1910. Appellant also introduced in evidence: A deed which purported to be dated July 23, 1910, from Melvin H. White to'J. Hunker, to section 82, block 12, the land in question for the recited consideration of $9,000 cash. His deed was filed for record August 15, 1910. A release dated December 19, 1911, from Estes, reciting vendor’s lien on section 100, certificate 2/260, H. & G. N. school land, retained in deed from Estes to White, dated May 11, 1909, to secure two notes, one for $2,000 and one for $2,400, due January 1, 1910, and January 1, 1912, respectively, acknowledging the payment of the $2,400 note, and that such payment was considered sufficient payment. The lien was released on section 100 for both notes. This release was filed for record January 5, 1912. Appellant introduced the deed from J. T. Estes and wife to Melvin H. White, dated May 11, 1909, conveying section 84, block 12, certificate 2/252, H. & G. N. Ry. Oo. survey, sec. 100, block 12, certificate 2/260, H. & G. N. Ry. Oo., for the recited consideration of $8,000— $3,600 cash and two notes — one for $2,000, due January 1, 1910; the other note is not set out in the copy in the statement of facts, but clearly from the release above set out is the note for $2,400. The vendor’s lien is retained on said two sections of land to secure the payment of said two notes. Appellant introduced the note for $2,400, dated May 11, 1909, due January 1, 1912, which recites it is a vendor’s lien on sections 84 and 100, block 12, and has indorsed on its face, “Paid December 29, 1911.” Appellant introduced a deed dated July 11, 1910, from Melvin H. White and wife to Joseph St. Mary, conveying section 84 in block 12, certificate 2/252, H. & G. N. Ry. Co. survey. The consideration recited therein is $1. The appel-lee introduced a deed from White and wife to O. F. Tissen, dated the 24th day of July, 1909, conveying section 82, block 12, and as part of the consideration Tissen assumed the payment of the two notes — one for $1,000, and the other for $1,200. A vendor’s lien was retained to pay said two notes. This deed was filed for record July 30, 1909; also deed from O. T. Tissen to Jos. St. Mary, dated September 1, 1909, conveying section 82, block 12, and as part of the consideration the assumption of the two notes for $1,000, and $1,200, each due respectively January 1, 1910, and January 1, 1912, and to secure their payment a vendor’s lien was retained in the deed. This deed was filed for record September 23, 1909; also deed from Joseph St. Mary and wife to Melvin H. White, dated the 12th day of July, 1910, conveying section 82, block 12, for the recited consideration of $1 and the exchange of other property. This deed was filed for record the 22d day of July, 1910. It is admitted by the parties that J. T. Estes made but one deed to section 82, block 12, certificate No. 2/251, which is the deed in the record, and that deed was made to Melvin H. White. The evidence shows in this ease that Hunker paid White $9,000 cash for the land, and that he turned the abstract and release over to his attorney in Oklahoma to examine, who pronounced the title good with the exception of the description in the amount of the note and the discrepancy in the deed referred to as to the other land conveyed. The attorney and Hunker called on White to explain the discrepancy, and White’s explanation was “that at the time of this transaction with Estes there were several transactions, and that at the time he made this particular release, they did not have the notes before them, and they had misdescribed the amount, and that was the reason the amount did not tally.” It appears from the evidence that Estes, by two separate deeds, made to White on May 11, 1909, one conveying section 82, block 12, reserving a lien therein for the note sued on, and in the other deed'sections 84 and 100 in block 12 were conveyed, reserving in the deed the vendor’s lien to secure two notes — one for $2,000 and the other for $2,400. Estes lived in Goliad county during all the transactions. We think from the facts in the record that the trial court was warranted in finding that White conveyed section 82 through mistake down to St. Mary, when he intended to convey, section 84. The release was secured by White to clear section 84, and he prepared the same, or had it done, and sent it to Estes at Goliad, to execute. By mistake section 82 was placed therein instead of section 84. This was the condition of the title when appellant purchased the land, and his attorney prepared correction deeds. White for $1 conveyed to St. Mary section 84, and St. Mary conveyed to White section 82 for the consideration of $1 and the exchange of property. These exchange deeds were made to correct the mistake, and had to be so made in order for White to transfer the land to Hunker. The release had not been placed of record until after the trade was made, but was simply held by White and given to Hunker or his attorney to examine with the abstract; It was recorded only one day before the deed to appellant is dated. The correction deeds were made between White and St. Mary some ten days before White conveyed to Hunker, and we prepared by Hunker’s attorney to correct the error. The trade must have been in course of consummation 10 or 15 days before the deed was actually made and delivered to Hunker.

We think the court had sufficient evidence before him to warrant the finding that there were sufficient facts known to Hunker at the time of the purchase which, if pursued with reasonable diligence, would have given him notice that the $1,200 not had not been paid, and the lien to secure the same extinguished on section 82, and that, the naming of section 82 in the release deed was a mistake, and that the parties really intended to release section 84.

We do not think the release on its-face releases the lien retained in the deed from Estes to White, and in the note sued on, or that it discharged the lien for the $1,-200. It does not purport to do so. The release recites that the two vendor’s lien notes —one for $2,000 and the other for $2,400— were a lien retained on sections 82 and 100' to secure their payment, and that Estes was the legal and equitable owner of said notes, and in consideration of the payment, “which I deem sufficient,” release section 82 from “the above-described lien,” and declares same ' extinguished in so far as section 82 is concerned, but no further. The note sued on is. not mentioned, and the release does not recite, nor is it inferable that the lien securing that note is extinguished.

A lien is “a hold or claim which one-person has upon the property of another as-a surety for some debt or charge” (2 Bouvier); or, as defined elsewhere, “a lien is a legal claim or hold on property either real or personal, as security for the payment of some debt or obligation” (25 Cyc. 660; Ellis v. Cleburne, 35 S. W. 497). Our courts frequently say that the lien is but an incident of the debt, and the payment of the debt extinguishes the lien, and a release is ordinarily only evidence of that fact. The evidence-furnished in this case by the release indicates only the release of a lien to secure a $2,400-note, and no other. Sometimes a release in form indicates an assignment of the grantor’s interest, and when that is the evident intention, a release should be so treated. The-form used will not so much control as the relation of the parties at the time and the-intention of the parties. Brown v. Lapham, 3 Cush. (Mass.) 554; Wadsworth v. Williams, 100 Mass. 131. Our Supreme Court, in the case of Sanborn v. Crowdus, 100 Tex. 605, 102 S. W. 719, said: “Notwithstanding the technical rule of common law as to deeds of release, we do not question that the words such as are used in the release in question, that the person executing it does ‘release and forever quitclaim the said land and premises’ would be sufficient in an ordinary deed purporting to be -a conveyance to pass the grantor’s title, although the grantee had no previous interest or possession. Effect must be given to the intention expressed in such instruments as in others, but an intention to convey land which had not been before sold and conveyed could not be gathered from a reading of this release. Such a meaning would never be imputed to it by any one looking alone to its terms. * * * Nowhere does an intention appear to make a new grant of anything. * * * But by its recital it connects itself with the former conveyance recited, and the two are thus made the complement of each other. * * * The two are to be construed together.” Waldermeyer v. Loebig, 222 Mo. 540, 121 S. W. 75. The release in this case recites: “J. T. Estes conveyed to Melvin H. White certain real estate and premises in Collingsworth county, state of Texas, being sections Nos. 82 and 100, block 12, certificate 2/251 and 2/260, H. & G. N. school land, all of which is fully described in said deed to which reference is here made for a particular description, retaining therein a vendor’s lien securing payment of $4,400.00 (forty-four hundred and no/100 dollars) for which White executed two notes — one for $2,000.00 and the other for $2,400.00.” If appellant had examined the deed from Estes to White, conveying section 82, he would have at once ascertained that section 100 was not conveyed by that deed. He would also at once have ascertained that there was no lien retained in that deed to secure a $2,400 note, but there was a lien to secure $1,200. . It would at once have suggested to him a mistake, and especially must that have been true when the abstract furnished him showed the title to 82 was in St. Mary, and that before a title could be conveyed by White, he would have to get a correction deed from St. Mary to White of 82, and his attorney then employed did prepare that deed, together with a deed from White to St. Mary, conveying section 34. Any sort of diligence on his part would have revealed the fact that sections 84 and 100 were conveyed together, and the vendor’s lien retained thereon to secure the $2,400 note mentioned in the release. White told the lawyer they had several transactions, but no other investigation is made as to what these transactions were. Appellant rested contended with the statement “that they did not have the notes before them and misde-scribed the amount.” The release referred to a deed that did not exist. There was no recital therein that the note for $1,200 was paid and the lien released. The deed under which Hunker now holds, and all others, recited this $1,200 note as a lien against the land. We think the evidence amply sufficient to sustain the court’s finding that the lien securing the $1,200 note was not released, and that appellant had notice of that fact, or should have known it, by any sort of diligence, from the facts stated in his chain of title, and from other statements made by White at the time.

For the reasons above stated, we grant a rehearing, and upon a consideration of the case upon its merits we find no such error as requires a reversal of the case, but we believe the trial court correctly disposed of the issues, and the cause is therefore affirmed.

On Further Motion for Rehearing.

Appellant, in his motion, asserts that this court overlooked the fact that appellee did not plead that appellant purchased the land with notice of the existence of the lien sought to be foreclosed. We do not think it was necessary for appellee to state by pleading notice, or that appellant was not a purchaser in good faith. Appellant himself put that in issue. He alleged “that he paid therefor the sum of $9,000, without any notice, either actual or constructive, of any claims of plaintiff to or concerning this land, and without any knowledge or information whatsoever of the claim asserted here by plaintiff.” That issue was therefore presented by appellant himself. The release does not purport to release the land from the vendor’s lien for $1,200 sued on. The deed under which appellant claims reserved a lien for the purchase money evidenced by the $1,200 note. The release introduced by appellant referred to a deed conveying two sections, 82 and 100. The deeds in appellant’s chain of title convey only one section. Appellant himself offered in evidence the deed to sections 84 and 100, showing note for $2,400, and the release in question only released the land from the lien retained to secure that note. If appellant examined the title to his own section of land, he was bound to know,' or at least have been placed in possession of facts which would have led to the knowledge, that the release did not refer to the deed in which the vendor’s lien was retained.

The motion will be therefore overruled.