author: HUFF, C. J.

text:
    SLAVIN et al. v. GREEVER et al.
    (No. 1427.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 29, 1919.)
    1. Courts ⅞⅜=472(4) — District Court — Jurisdiction-Equitable Rights.
    Action to determine plaintiffs’ interest in property left by testator’s grandfather and in the estate of plaintiffs’ grandmother in the process of administration, involving title to such property and the question of whether the grandmother’s administrator had converted the portion of the estate, and whether grandmother had title to certain property at time of her death, was within jurisdiction of district court, involving equitable rights not determinable by probate court under Const, art. 5, § 16.
    2. Courts <⅜=>472(4) — Probate Court — District Court — Questions Affecting Estate.
    Where the probate jurisdiction of county court under Const, art. 5, § 16, is inadequate to adjust equities in settlement of question arising during administration of estate, resort may be had to equity powers of district court, judgment to be performed through probate court, district court’s jurisdiction in such ease being auxiliary and ancillary to that of probate court, and to be exercised only in special cases.
    3. Husband and Wife <S=»229(2) — Action to Determine Title — Pleading—Community Property.
    In action to determine plaintiff’s interest in property left by grandfather and grandmother, involving question of whether certain property was community property, petition referring to grandfather’s will and probate thereof and inventory of property thereunder, together with partition suit in which such property was alleged to he community property and judgment therein, held to sufficiently allege that property was community property.
    4. Wills <§=577 — Construction—Community Property — '“Mt Estate.”
    Husband’s will, directing division of “my estate,” directed disposition of husband’s property only, and not wife’s community property.
    5. Executors and Administrators <@=38— Administration of Will — Community Property.
    Where husband’s will directed distribution of his own property only, executor had no right to administer wife’s half of the community estate.
    6. Husband and Wife <@=273(1) — Rights of Surviving Spouse — Community Property.
    Under the statutes defining community property, surviving spouse takes an undivided one-half interest in the entire estate, not as an heir, but as an owner.
    7. Wills <§=577 — Community Property — Distribution of Wife’s Estate.
    Will providing that property given wife in certain clause of will should, upon wife’s death, be divided equally between specified heirs, did not authorize distribution of wife’s community estate among such heirs, where husband’s will did not attempt to direct disposition of wife’s share of community property, and issue of deceased child, though not so specified, was entitled to share in distribution.
    8. Wills <@=>782(12) — Election by Surviving Wife,.
    Surviving wife is not required to make election between will and her share of community property, where she receives no benefit under will inconsistent with her community interest.
    9. Wills <@=>800 — Election—Necessity.
    As a general rule, a party cannot take under the will and at the same time adverse to it.
    Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.
    Action by Pauline Slavin and another against Edwin A. Greever and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    J. W. Payne, of Ochiltree, and Newton P. Willis, of Canadian, for appellants.
    Coffee & Holmes, of Miami, and Hendricks & Mood, of Amarillo, for appellees.
   HUFF, C. J.

The appellant Pauline Slav-in, joined by her husband, sued the appellees, Edwin A. Davis, Dwight B. Davis, and Frank B. Davis, Jr., Garland G. Greever, Auta C. Greever, Mrs. Ollie B. Roy and husband, John F. Roy, and Edwin A. Greever, in the district court of Ochiltree county, Tex., alleging ; That plaintiff and defendants constituted the heirs, and all the heirs, of William A. and Lydia C. Greever. That William A. Greever died April 4, 1913, leaving a will disposing of his property in a different manner than according to the laws of descent and distribution, and left surviving him plaintiff and defendants, and Lydia C. Greever, his wife. The will was probated September 22, 1913, in the county court of Ochil-tree county, Tex., and letters testamentary were issued to Edwin C. Greever and Frank. B. Davis, named in said will as executors. On March 3, 1916, Lydia C. Greever, joined by Edwin A. Dwight, G. and Frank B. Davis, Jr., minors then and now, by their father and next friend, Frank B. Davis, as plaintiffs, filed their petition in a suit in the district court of that county, naming the parties defendant to that suit, all the other defendants named herein, and that the appellant Pauline Slavin was not a party thereto. That therein it was alleged that sections 74 and 75, block T, of the Tex. & New Orleans Railway Company and the N. W. ⅛ of section 79, same block, and section 110, block 13, were the community property of W. A. and Lydia G. Greever, and of the estimated value of $20,800,000, and prayed for a partition and division of the larid. That these lands had been included in the terms of W. A. Greever’s will. The court rendered judgment as prayed for, partitioning the land, decreeing to Mrs. Lydia C. Greever the E. ½ of section 110 and the E. ½ of section 74 and all of section 75; and the other parties thereto named as heirs were each awarded 160 acres of said land. That there was belonging to the estate at W. A. Greever’s death personal property, and the petition set out the items and the value of each item, amounting to several thousand dollars. That according to the will Mrs. Greever took one-sixth, but that the parties to the suit, except appellant, who was excluded from participating in the division, divided the personal property otherwise than as provided for by the will and according to caprice, and converted appellant’s share to the use and benefit of the other parties. That Lydia C. Greever died intestate May 25, 1916, leaving as her heirs the appellant and the other named parties to this suit. That administration is now pending on her estate in the county court, and Edwin A. Greever was duly appointed administrator thereof. That the inventory and appraisement returned therein show no property in the estate except section 75, and the E. ½ of section 74. That Mrs. Greever died, seized of at least one-sixth of the personal property which she took under the will, of the value of more than' $5,000, according to appellant’s information and belief.

“(6) Plaintiffs says that by reason of the premises the will of W. A. Greever was by common consent revoked and annulled, and that his property passed according to the laws of descent and distribution, instead of as provided by said will, and that by reason of such matters plaintiff Pauline Slavin is entitled to her distributive share in the property of W. A. Greever, deceased, an undivided one-twelfth interest therein, and is further entitled to a one-sixth interest in all the property of her grandmother Lydia G. Greever, deceased; that defendants, and particularly Edwin A. Greever, who is acting as administrator of his mother’s estate, are not only refusing to inventory any personal property that said Lydia G. Greever may have been possessed of at the time of her death, hut are also contending that the plaintiff Pauline Slavin has no interest in either of said estates, on account of which this honorable court in its equity jurisdiction has the power to take charge of such matters and adjudicate to said Pauline Slavin her interest therein.”

The defendants answered by general and special exceptions. The fifth special exception is substantially that they except to any assertion of any claim by plaintiffs or any title or interest in the estate of Lydia O. Greever, the wife of William A. Greever, for the reason that the petition shows upon its face that said estate is in process of administration, and that that court, and not the district court, has jurisdiction of said estate. The answer further contains general denial, and specially admitting that during the lifetime of Mrs. Greever there was a partition by judgment of the real estate as set out, and thereafter that Mrs. Greever conveyed to appellant Pauline Slavin 320 acres out of section 110, which was accepted by appellant, etc. It is further alleged that Pauline Slavin is the daughter of Carrie L. Buckley, deceased, and that Mrs. Buckley was the daughter of William A. and Lydia C. Greever, and that by the will as probated there was a disposition made of all the real estate and personal property owned by said William A. Greever, during his lifetime to those defendants as well as to Lydia C. Greever, his wife; that Mrs. Buckley was excluded from the provisions of said will, except the sum of $1, which was paid to her before the division of the estate; that any claim or interest that appellant, as heir of William A. Greever, deceased, has is by virtue of her descent from him through her mother, Oarrie L. Buckley; that by probate of the will the title to the real estate and personal property vested in defendants, or as to their part of said estate, and during the lifetime of said Lydia 0. Greever there was a complete partition and division of all of said real estate and personal property between the defendants and Lydia O. Greever; that by the fourth provision of the will, W. A. Greever suggested that in making division of the property of his estate same should be valued and should be allotted to each ae-cording to the appraised value of the same, and it was further suggested by said testator that a division should be made by mutual agreement, if possible. It is alleged: That in dividing the personal property of said estate interest of each named as beneficiary therein was partitioned as near as practicable according to the suggestion of the testator made in the will. That in said division between the defendants and Lydia C. Greever all of the personal property or any interest in same that could have been claimed by Lydia C. Greever in 'her lifetime, or owned by her as of her own right before her death, went into said partition and allotment made thereunder. Said Lydia O. Greever accepted the same, and took possession of said allotment turned over to her in said partition, and used and enjoyed her moiety to the time of her death. That at the death of said Lydia C. Greever she owned and possessed only the personal property that could be devolved upon her said heirs by virtue of the statutes of descent and distribution. It is alleged that the land conveyed by Mrs. Greever to appellant was made by way of advancement, and is of more value than any interest that appellant could inherit as an heir from the estate of the grandmother; that it was not the purpose by the judgment of partition to set aside the probate of the will, but that it was made in order that Lydia C. Greever might convey to the appellant the land above mentioned, as she desired to do.

It will not be necessary to set out the supplemental petition of appellants.

The court, upon hearing special exception No. 5, sustained the exception as made, and thereupon the appellants, as plaintiffs, filed a trial amendment, alleging that Edwin A. Greever, both as independent executor of W. A. Greever’s estate and also as administrator of Lydia C. Greever’s estate, entered into a fraudulent conspiracy with the other defendants to take, withhold, and convert to their own use all the property that pertained to said, estates and, to deprive Pauline Slavin of her share and interest therein, and in pursuance of said conspiracy all of said defendants, including Edwin A. Greever, as executor and administrator, colluded together and disposed of all the property of said estates, and divided the proceeds thereof among themselves, but gave Pauline Slavin no part thereof, and have refused, and still refuse, to give Pauline Slavin any part thereof, and, further, they are withholding from plaintiff the title and possession of all the land of said estates, and are fraudulently attempting to appropriate and misapply to their own use all of the assets of said estate, to the exclusion of any right of plaintiff to share therein.

The appellees, as defendants, excepted to the trial amendment, setting up a conspiracy of Edwin A. Greever as administrator of Mrs. Greever and to all other matters set up in said trial amendment, referring to the estate of Mrs. Greever, for the reason that the court had previously sustained defendant’s exceptions covering that matter, on the ground of having no jurisdiction, and because the court is without jurisdiction to try the matters affecting the estate of Mrs. Greever. The court sustained this exception.

The court heard evidence, and the facts as shown by the record show the will executed, which will Be hereafter noticed in the opinion, was probated as alleged and an inventory of the property filed; that before the death of Mrs. Lydia C. Greever there were partition suits, and judgment had thereon, partitioning the land substantially as alleged by the parties to this suit, and that thereafter Mrs. Greever died, and Edwin A. Greever, who was the independent executor under the will of W. A. Greever, was appointed as permanent administrator of the estate of Mrs. Greever.

The inventory of the property filed shows that the property listed was all community property of W. A. and Lydia O. Greever, and was appraised or valued at something over $40,000; that after the death of Mrs. Greever, the evidence would warrant the finding that the personal property of her estate was of the value of something over $6,000, besides the section and half of land which had been set aside to her in the partition suit. We find this agreement in the statement of facts:

“It is agreed between the parties that, since the death of W. A. Greever, Edwin A. Greever, as executor and F. B. Davis as executor, have disposed of personal property that was left in the estate of W. A. Greever at the time of his death, to the total amount or value of $16,820.-85, which is the correct valuation of the property after deducting the expenses of the administration, and that each heir received, May 24, 1916, $1,707.66, and since May 24, 1916, each heir received $1,239.45.”

Mrs Greever’s death occurred on May 24th, and the heirs referred to as having received the distribution did not include the appellant Pauline Slavin, but she was excluded in all the distributions. The executor under the will, and the administrator of Mrs. Greever’s estate, testified:

“Yes, it is a fact that I, as executor and administrator, have denied that Pauline Slavin has any interest in either of these estates. As to our refusing to distribute to her any part of this estate, we have followed the will as I saw it. I do not admit that she is interested in either of these estates; I am charging that that she is not, and I would not, as administrator or executor, give her any of .these estates, either land or personal property; and after I sold all of this personal property it was my purpose to distribute it among the heirs exclusive of Pauline Slavin. -No; that was not the express purpose of selling it. I didn’t have any purpose in giving any of it to Pauline Slavin. No, sir; I thought the other heirs should have it. I looked at it that way. I believe I was following the will.”

There is some testimony that the other-heirs received advancements from their father’s estate previous to his death. The •administrator testified substantially also that the personal property that his mother had on hand at her death went .back into his father’s estate under the will, and the testimony authorizes the statement that in distributing under the will he gave to Mrs. Greever one-sixth, as provided for by the will,- which she accepted. We shall not try to recite tire testimony bearing on this point.

At the end of the trial the court instructed a verdict for the appellees, and judgment was rendered generally that the appellant take nothing by reason of her suit, and no direction was made that Mrs. Greever’s estate be referred to the probate court.

The first question presented by the assignments call in question the action of the court in sustaining the exceptions heretofore set out, and this presents a question of jurisdiction. The petition of appellant is very defective, and it is difficult to ascertain just what is sought by the allegations. It is apparent, however, that appellant Pauline Slavin claims a one-sixth interest in Lydia O. Greever’s estate, left her at her death, and of one-twelfth interest in W. A. Greever’s estate, left at his death. It is alleged that the administrator of the first and executor of the second estate had converted her interest therein, and that he and the others entered into a fraudulent conspiracy to take, withhold, and convert to their own use the estate, and to deprive her of her interest and share, and in pursuance of such conspiracy they sold all the personal property and divided the proceeds among themselves, and gave her no part thereof, and withheld from her the title and possession of the real estate, etc. The appellees, by their answer, assert Oarrie L. Buckley was a daughter of W. A. and Lydia O. Greever, and the mother of Pauline Slavin; that by the will of W. A. Greever this daughter was excluded from participation in the estate, and that the will and probate thereof vested title to the real estate and personal property in appellees; that by the terms of the will it was suggested that the beneficiaries themselves make a division by agreement, if possible; that the suggestion was followed and the property divided between the appellees and Mrs. Lydia O. Greever during her lifetime, and that she gave, by way of advancement to appellant, 320 acres of land, which is in excess of the value of any interest that she may have in the grandmother’s estate. We believe when the entire pleadings: are taken into consideration that it is apparent therefrom that a question of title to the real estate and personal property is presented, and the suit was brought to establish such title or interest therein in favor of appellant Pauline Slavin. It is shown thereby that the administrator claimed a personal right and interest adverse to the appellant, and that he had converted the personal property. Tf this is true, the probate court could not adjudicate the title or award damages for the conversion, but the district court, under the Constitution, was the only court that had jurisdiction. Article 5, § 16, of the Constitution, gives the county court the general jurisdiction of a probate court, and authority to probate wills, “grant letters testamentary and of administration; settle accounts of executors; transact all business appertaining to deceased persons, * * * including the settlement, partition and distribution of estates of deceased persons.”

Tlie question presented by the pleadings is whether certain personal property belonged to the estate of Mrs. Lydia C. Greever at her death, or whether it had vested in the appellees; appellees contending that the property was theirs under the will, and by virtue of an agreed partition, and therefore not subject to be administered as part of the estate, and was not involved in the administration proceedings pending in the county court. As to the real estate it is alleged that appellees were asserting title thereto adverse to appellant, while the answer of appellees appears to recognize appellant would have an interest in the land but for the fact that appellant had received advancements more than her interest therein, and we presume for that reason should be tried in the probate court. In other words, there was a controversy between appellant and appellees as to title and ownership of the property. This question would first have to be determined before it could be administered by the probate court or partitioned therein.

“While it is customary to speak of the jurisdiction of the county court over matters relating to estates of deceased persons, under administration as ‘exclusive,’ and the entire current of judicial decisions is to carefully protect the jurisdiction of that court over such matters, as it ought to he, yet is it plainly recognized that questions may arise affecting estates in regular course of administration, requiring, for illustration, the adjustment of equities for the settlement of which the probate jurisdiction of the county court is inadequate, and in such cases, notwithstanding the administration, resort may he had to the equity powers of the district court for the determination of those questions, the judgment to he performed through the probate court. This is a jurisdiction auxiliary and ancillary to that of the probate court. In some extraordinary instances it may be corrective. It is to be exercised only in special cases but it nevertheless exists. Gannon v. McDaniel, 46 Tex. 303; George v. Ryon, Administrator, 94 Tex. 317, 60 S. W. 427; Western, etc., Mortgage Co. v. Jackman, Adm’r, 77 Tex. 626, 14 S. W. 305; Pomeroy, Equity Jurisprudence, vol. 3, § 1154, pp. 2283-2294.” Lauraine v. Ashe (Sup.) 191 S. W. 563.

The Supreme Court, in the case of Edwards v. Mounts, 61 Tex. 398, held that the probate court had no jurisdiction to determine, as between an administrator and the heirs, the ownership of the proceeds of a policy of insurance claimed by the administrators to be assets of the estate, and by the heirs as their individual property, derived by inheritance from another ancestor, the assignee of the party insured. This case, in its essential facts on jurisdiction, is substantially the same as the above except, the positions of the parties are reversed. Cavitt v. Beall Hardware Co., 204 S. W. 798, and authorities cited; Timmins v. Bonner, 58 Tex. 554; Wadsworth v. Chick, 55 Tex. 241.

Though the petition is lacking in some important allegations, we think it presents questions which call into action the equity powers vested in the district court. It is apparent from the allegations that appellant’s contention is that the appellees having divided the property among themselves by a different method to that prescribed by the terms of the will presented a question for the application of the rule of equity under such circumstances. The allegation shows that under the arbitrary division apr pellees were claiming the entire estate of both decedents as their property, and that the estate left by Mrs. Greever would pass to them under' the will and would exclude appellants, notwithstanding they, themselves, had not taken the property under the will. We think it is manifest from the allegations that questions are presented for settlement to determine which the jurisdiction of the probate court is inadequate. Crain v. Crain, 17 Tex. 86; Dobbins v. Bryan, 5 Tex. 276; Smith v. Smith, 11 Tex. 102; Becton v. Alexander, 27 Tex. 667; Cannon v. McDaniels, 46 Tex. 312, 314; Japhet v. Pullen, 63 Tex. Civ. App. 157, 133 S. W. 441.

The cases cited by appellees of Allardyce v. Hambleton, 96 Tex. 30, 70 S. W. 76, and Wilkinson v. McCart, 53 Tex. Civ. App. 508, 116 S. W. 400, do not hold to the contrary, as we read them. In the first case cited the will of the husband sought to ingraft upon the wife’s community interest a charge to reimburse his separate estate for the advancement made to the community. The court held he could not do so by will, and that the probate court had jurisdiction to determine the validity of the attempted charge against the community. The Supreme Court said therein, in passing on the question: “The title of the property cannot be involved in the proceedings.” In the second case cited suit was brought to partition an estate in the district court and to establish heirship of the decedent. In that case there was no contest of ownership. It was held by the Court of Civil Appeals that the probate court had jurisdiction, and that the district court did not.

Por the reasons above expressed we believe the trial court was in error in sustaining the exceptions assailing the jurisdiction of the district court.

It is suggested by appellees that as the court received the evidence and instructed a verdict there was no such error in his rulings as would reverse the case. In his ruling the court must have concluded he had no jurisdiction over the subject-matter, which, under the exception, was the estate of Mrs. Greever, then in course of administration. The pleadings present the issue whether certain property belonged to the estate at her death, or whether it belonged to the appellees at that time, and whether or not certain property under the will passed to appellees instead of to Mrs. Greever’s estate. If it passed to the estate, unquestionably appellant had an interest subject to partition. These questions were also involved with the proceedings under the will, the partition suit, etc. Certainly if the judge thought and held his court had no jurisdiction, he would not have attempted to adjudicate the rights or issues which he could not determine. The only question, as it appears to us, which he undertook to determine was under the pleadings and rulings whether appellant took as heir one-twelfth interest in W. A. Greever’s, her grandfather’s estate. This, it occurs to us, was the issue upon which he instructed a verdict. However, the judgment rendered in this case is that the appellant take nothing by her suit. Her suit involved an interest in her grandfather’s estate:, of one-twelfth, and a one-sixth interest in her grandmother’s estate. If the court had no jurisdiction as to Mrs. Greever’s estate, the judgment was wrong, and that portion should have been dismissed without prejudice. The judgment, therefore, must, in the light of the pleadings and rulings, dispose alone of the appellant’s interest in her grandfather’s estate, and not that of the grandmother, wlhieh latter was left for determination by the probate court. We think the court had jurisdiction of all’ the issues, and] they are so interwoven, one with the other, that they should be tried together, and for this reason the case should be reversed, if for no other.

The next question under the assignments and the facts of the ease presents the proper construction of the will and the rights of the parties thereunder, and their rights as heirs, to the two estates. The petition fails to allege in terms that the estate left at the death of W. A. Greever. was the community property of himself and wife, but it refers to the -will and the probate thereof, and 'the inventory of the property thereunder, together with the partition suit and judgment, evidence, we think, a sufficient allegation that the estate was community. The record establishes beyond controversy that all the property at the death of W, A. Greever was the community estate of himself and wife. The second clause of the will gave “all of section 75” to the wife “for her sole use during her life, and at her death I desire that said section be divided equally among the children named in the third paragraph of this, my will.” The third paragraph reads:

“It is my desire and I direct that the remainder of my estate, both real and personal, of every kind and description, wheresoever the same is located, be divided equally among my wife and our children, here named, as follows: [The will naming all his children except Mrs. Buckley, the mother of appellant], “each to receive one-sixth of all my said estate, except said section 75, but should any of the children here named be deceased at the time of my death, and should not be survived by any heir of their body, then and in that event I direct that the part of my estate which they should have taken under this will, should they survive me, be divided equally among my wife and those of our children hereinbefore named, who shall survive me.
“4. I suggest in making the division of my estate” [suggesting that it be valued, the legatees to select, etc.; the will reciting that it was only a suggestion, but that the division he desired be made by mutual agreement, if possible].
“5. I desire that before the division of my estate, as provided in paragraph 3, is made, the sum of one dollar be paid out of my estate to my daughter, Mrs. Carrie L. Buckley.”
The sixth and seventh paragraphs nominated Erancis B. Davis, and Edwin A- Greever as independent executors, without bond.
“8. I direct that the property which my beloved wife, L. C. Greever, shall take under the third paragraph of this my will, shall he for her use and benefit during her life and it is my will at her death the said property shall be divided equally among all the other legatees named in the said paragraph, who shall survive her.”

We think the will by its language only disposed of his estate. The words used would not include any other estate. The language is “my estate, both real and personal.” In suggesting a division it was of “my estate.” No action was to be taken in the courts “over my estate,” other than to probate the will, etc.

Reading toe entire will,- it is our conclusion, that it did not dispose of Mrs. Greever’s community estate, and its provisions did not affect it or authorize the division thereof under the terms of the will. The will, in this instance does not in terms propose to dispose of anything but the testator’s own estate, and does not intrench upon the community rights of the wife. Parker v. Parker, 10 Tex. 84, at page 97; Moss v. Helsley, 60 Tex. 426; Pomeroy’s Equity Jurisprudence, yol. 1, § 505. This is appel-lees’ construction of the will,, if we correctly understand them. If this is a correct interpretation, Mrs. Greever, at the death of her husband, took onenhalf of the entire estate, plus one-sixth interest in the husband’s half' and a life estate in an undivided half of section 75. The executor would have no right to administer her half of the estate under the will. ,If they paid her one-sixth of the personal property it must have been, under the terms of the will, out of ¡her deceased husband’s moiety. If they paid her more than one-sixth- in such half interest, or a one-sixth interest in the entire community estate, they would pay her no more than was her own; hut if they paid the other heirs and themselves each one-sixth of the entire estate, they were paying themselves one-twelfth each out of Mrs. Greever’s moiety.

This construction renders it, as we conceive it, unnecessary to discuss the question, where an heir elects to take as an heir and not under the will, the effect it would have on the interest of other heirs taking under the will and the adjustment of the equities occasioned thereby, as frequently arises in adjusting equities under such circumstances. See Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, 27 L. R. A. (N. S.) 602, and notes thereunder. In this state as to the husband and wife, under out statutes defining community property, upon the death of one of the spouses, the other does not take as an heir, but as an owner of an undivided one-half interest in the entire estate. Heidenheimer v. Loring, 6 Tex. Civ. App. 560, 26 S. W. 101.

The eighth paragraph of the will directs that the property which the wife took under the third paragraph at her death should be divided equally among all the other legatees named. Therefore the remainder of the one-sixth of the husband’s half which had been paid to Mrs. Greever, or was in the hands of the executor, would vest in the appellees under the will, in which appellant could not participate. This clause, however, did not authorize the appellees to divide the wife’s half of the community estate among themselves, or give them any right or title thereto, other than that of heirs. At the death of Mrs. Greever they, as children, would inherit a child’s part, and appellant, being the only child of her deceased mother, would also inherit a child’s part of her grandmother’s half interest in the entire community estate, and the executor and administrator and other heirs had no right to exclude her therefrom.

Perhaps it is unnecessary to discuss the question if the husband had undertaken to dispose of the wife’s interest by the will the rules that should govern, but inasmuch as it is apparently insisted tjiat as to the personal property Mrs. Greever elected .to take under the will, and that the will will control in its distribution, we feel that we should in some measure give our views. Clearly, as to the real estate, the wife and legatees treated the will as not passing her interest, but, as we hold, the will did not put her to an election, as there was no assumption by the terms of the will disposing of her interest. If, however, this could be said to have applied to the personal property, of which no partition was made, then we understand in order to make an election the evidence must make it appear that the wife received some benefit under the will inconsistent with her claim of one-half of the whole estate. Now, if Mrs. Greever did not receive some benefit inconsistent with her community interest, she would not be deprived thereof. Mayo v. Tudor, 74 Tex. 471, 12 S. W. 117; McClary v. Duckworth, 57 S. W. 317, and authorities cited.

It is> the general rule that a party cannot take under the will and at the same time adverse to it. Such person must adopt its whole contents soi far as it concerns that one. Philleo v. Holliday, 24 Tex. 38; Little v. Birdwell, 27 Tex. 688. Clearly the wife never elected to accept a one-sixtli interest in the entire estate as her part. The partition of the real estate evidences that fact. The clause devising to named legatees includes both real and personal property in the same connection and in the same terms. Such being thei construction, the only right appellees can assert to the estate of Mrs. Greever, other than their interest as heirs of Mrs. Greever, was by gift by her during her lifetime. We do not think the evidence conclusive of such gift. Again, if she made a gift to the appellees, if appellant shall be required to surrender and put her 320 acres in hotchpotch, appellees should also be required to do so. It is our view that appellant cannot recover any part of her grandfather’s interest under the will or the one-sixth of that interest paid the grandmother before her grandmother’s death, but her right to her grandmother’s community estate and the estate left by her at her death should be set over to her, and her rights fixed therein. Of course the advancements made to each and all the heirs should be put in hotchpotch, as required by law governing descent and distribution. The district court having acquired jurisdiction, we see no reason why the rights of all the parties should not be settled by that court and proper judgment rendered. The interest of W. A. Greever in the community estate will pass to the appellees as above stated, and doubtless such was the purpose and view of the court in directing a verdict in this case; but, as we regard it, these two estates being in the hands of the executor, and held jointly, we think the best interests of all parties require an adjudication of both together.

The judgment will he reversed, and the cause remanded.
      —iffnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <SS=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    WIESS v. GORDON.
    (No. 420.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 20, 1910.
    On Motion for Rehearing, March 13, 1919.)
    1. Landlord and Tenant &wkey;>169(T) — Destruction oe Papers by Janitor — Liability oe Landlord.
    In action by lawyer to recover against owner of office building for destruction of valuable papers by janitor, evidence held to show that janitor was acting within scope of his employment when he cleaned out plaintiff’s office.
    2. Landlord and Tenant &wkey;H66(l) — Destruction oe Papers by Janitor — Duty oe Tenant.
    Whore janitor of office building told one of law firm that valuable papers had been destroyed by him by burning, firm, or particular partner who owned papers, was authorized to act on statement, and not under duty, as condition to gaining right of action against owner of building, to pursue inquiry further, as by seeing if papers could be recovered.
    3. Landlord and Tenant <&wkey;168(2) — Destruction oe Valuable Papers — Contributory Negligence.
    Lawyer whose valuable papers were negligently destroyed by janitor of office building was not guilty of contributory negligence in not telling owner of building of loss for two days after he was informed of it by janitor.
    4. Landlord and Tenant <5&wkey;169(7) — Destruction oe Papers — Amount oe Damage —Sufficiency oe Evidence.
    In lawyer’s action against owner of office building for destruction .of valuable papers by janitor, evidence held to sustain judgment for $297.50.
    '5. Damages <&wkey;69 — Destruction oe Property by Eire-Interest.
    A party who recovers damages for destruction of property by fire is entitled to interest on value of property from time of destruction.
    6. Damages <&wkey;157(4) — Prayer for General Relief.
    Where, under facts found, as matter of law ■plaintiff is entitled to interest as part of his damages, court should grant it to him on prayer for general relief.
    Appeal from Jefferson County Court; D. P. 'Wheat, Judge.
    Suit by W. D. Gordon against P. H. Wiess. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Greer & Nall, of Beaumont, for appellant.
    Thos. J. Baten, of Beaumont, for appellee.
   WALKER, J.

The following statement of this case is taken from appellant’s brief:

“In the petition filed by the plaintiff in the lower court he alleged that about December 26, 1914, he had his offices in the Gilbert Building, which was partly destroyed by fire, and he then rented from defendant three rooms in the V. Wiess Building, known as 207-209-211, at a monthly rental of $50 per month, and about the 1st of January, 1915, moved into said offices his furniture, etc. That among his property there was: An abstract and supplements of land in Liberty county, Tex., consisting of about 150 pages of typewritten matter, of the value of $96; also abstracts of land in Sabine and San Augustine counties, Tex., consisting of something over 100 pages of the value of $75; also 2,000 sheets of letter heads, newly printed, of the value of $15; also 1,000 envelopes of like character, of the value of $4, the same being the stationery of the plaintiff used in connection with the plaintiff’s profession as an attorney at law; also 150 printed deposition envelopes of the value of $7.50; and in addition thereto was a large number of title papers and certified copies of title papers affecting sundry tracts of land, and particularly land in the William Don-ahoe league in Liberty county and the T. J. Harrison league in Hardin county, Tex., of the value of $100 — all of which papers and documents were packed in a box and moved into room 211 of said Wiess Building at the time of the plaintiff’s removal thereto as above alleged.
“That defendant had a janitor who carried keys to the said offices occupied by the plaintiff, and whose duty it was to care for the rooms of the tenants in the said office building. That although said janitor was duly cautioned that papers and documents of the plaintiff were valuable, and warned not to destroy the same, nevertheless in the absence of the plaintiff he removed box containing papers and documents described in the plaintiff’s petition, and threw the same in the furnace and destroyed them.
“That said janitor was defendant’s agent, and his action in destroying the papers and documents was gross negligence, thereby rendering the defendant liable to the plaintiff for the value of the papers destroyed.
“That defendant was negligent in providing a janitor who was negligent, incompetent, and careless, thereby bringing about the loss to the plaintiff of the property mentioned in this suit.
“The defendant answered by general demurrer and general denial. Defendant _ also answered by special plea that had said janitor entered the rooms which were occupied by plaintiff and removed said papers and documents therefrom and destroyed the same, which is not admitted, but denied, then said act in removing and destroying said papers and documents was not done with the authority or consent of this defendant, and said janitor was not at said time acting within the scope of his authority, nor was he acting in the service of this defendant, nor was he performing any duty for this defendant at said time. That in so removing and destroying said papers and documents, if the same was removed and destroyed, said janitor was acting for his own account outside of the duties he was employed by this defendant, nor was it his duty, nor was he ever permitted by this defendant to remove from plaintiff’s office any papers or documents other than those thrown in a wastebasket for the purpose of being removed.
“Thomas J. Baten, a witness for the plaintiff, testified that he was a practicing attorney at law, and was associated with the plaintiff in the practice of law during the year 1914, and he remembered when the plaintiff moved from the Gilbert Building to the V. Wiess Building; that when they moved over they filled up several boxes of stuff, and one box had some abstracts and deeds in it. In straightening up over at the V. Wiess Building the witness had two other boxes that they put a lot of trash in. All of these boxes were in room 211 of the V. Wiess Building. ‘The janitor was around about the time they should have closed up, and I told him to take the two boxes of trash and destroy them. I also told him there was a box of valuable stuff in that room. I called him over and showed him the box, so he would not make a mistake. The box of valuable papers was between the other boxes, and to be sure the negro did not make a mistake I took him over and pointed out the three boxes to him, and said: “That box and that box over there are to be destroyed, but this box over here is valuable papers, and you should leave it.” After I told him this I went into the other room, and in a few minutes the negro came back very much excited and told me he had made a mistake and burned that box of valuable stuff. The negro took the paper to the dust chute in the building. The paper that is thrown in the dust chute goes to the boiler room. I asked him if there was any chance to recover t it, and he said there was no chance, and he begged me to not tell Mr. Wiess, and I did not tell Mr. Wiess for two days.’
“On cross-examination this witness testified: ‘I was in the office and pointed out two boxes to the negro to destroy, and also pointed out the one that I told him not to take. He took all three of them and threw them in the waste chute, and told me at once that he had done so. The janitor that burned up those papers in that box was the day janitor. I know that I saw him in the office after that; he was trying to get me not to tell the boss about it, and I heard later that he committed suicide.’
“W. M. Coleman, a witness for the defendant, testified: T was employed by Mr. Wiess in the year 1914; when Mr. Wiess was not in the office I looked after the janitors. I gave them instructions as to their duties; and the instructions were: Not to destroy anything in the office unless it was in the wastebasket, or unless the occupant of the office instructed them themselves. Tes, sir; they were instructed not to destroy anything except what was in the baskets. The fellow that you all have described was one of the janitors there in the building. He is also the fellow that committed suicide. Tes, sir; he had the same kind of instructions as the others. The fact is this particular janitor had more specific instructions because he had no business in the office during the day. The duties of the day janitor were to keep the halls, toilets, lobby, and everything outside of the offices clean. He did not clean up the offices. The day janitor never did go in the offices except when he was capped in by the occupants. He would never move anything except instructed by the occupants. He might go through the offices, to get to the windows to wash them. He was instructed not to clean the offices, and the only time, that he went in the offices was when he went through to wash the windows that he could not get to on the outside. Tes, sir; I know all about that paper chute, and where it goes to. It goes to the firing room, and it does not go to the fire box. That paper is used by the fireman in the morning to start a fire with in the boiler. As I stated before, that chute is not connected with the fire box at all.’
“Mr. P. H. Wiess testified: ‘I am the owner of the Wiess office building in which Mr. Gordon testified he had his office in December, 19X4. That janitor that has been testified to, and having been described as a negro that was crazy and committed suicide, is the same negro that worked as day janitor for me. He is the man in question. He was one of the negro janitors in the' building. He was the day janitor, and was on the day roll. His duties were to relieve the elevator boy, clean the halls and cuspidors, and wash the windows in the rooms. Sometimes if the fireman is sick he fires in the fire room. The occupants of the offices called on him pretty much to do something for them, and I tided to keep him out of the offices so he could do the other work. Those janitors had special instructions not to take anything out of a man’s office and destroy it unless it was in the waste paper basket. Of, course, if the men told them, I have no jurisdiction over them, but I told them not to take anything and destroy it unless it was in the paper basket. This particular janitor in question had the same kind of instructions. I will also describe to the court about the waste chute. It is a chute that we use to throw paper in. On each and every floor there is a door opening into the chute, and when the paper is thrown into the chute it goes down to a half story in the boiler room, and it drops into a galvanized box that is possibly 3x4 feet and maybe a little larger. Everything that is thrown into that chute goes into the boiler room into that box, and the fireman takes it out in the morning and helps make the fire to kinda help boost the fire. That chute is absolutely not connected with the boiler or fire box; you would have to take it out and carry it to the boiler before you could put it in there. The fireman uses all the paper and stuff that is thrown into that chute to kindle the fire with; that is what I told them to use it for. I try to keep bottles and things of that kind out of that chute, for the old negro cut his hand on a bottle that had been thrown into the chute.’
“Cross-examination: T don’t know a thing in the world about the negro going into your office and getting that box and burning it up. Tes, sir; I heard the testimony of Mr. Coleman about the special instructions given to the negro janitors, and will state that we give them all those instructions to be careful and not take anything except that which is in the paper baskets. This negro’s name was Lee, I think, and he has been in my employ, off and on, for five or six- years.’ Q. And he was in there cleaning up that room that evening, wasn’t he? A. No, it wasn’t his duty to be there. If he was in there doing that it was absolutely against my instructions. I haven’t any instructions posted up; I don’t have to do that; I tell them what their duties are, and they perform them.”

The appellant and. appellee assign as correct the following proposition of law:

“The master is responsible for the acts of the agent done and performed within the scope of his employment, without regard to the general capacity or incapacity of the agent.”

Appellant cites Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; St. D. S. W. Ry. Co. v. Mayfield, 35 Tex. Civ. App. 82, 79 S. W. 365; Atherton v. K. C. Coal & Coke Co., 106 Mo. App. 591, 81 S. W. 223; Sherwood v. Warner, 27 App. D. C. 64, 4 D. R. A. (N. S.) 651, 7 Ann. Cas. 98; Walker v. Railway Co., 121 Mo. 575, 26 S. W. 360, 24 D. R. A. 363, 42 Am. St. Rep. 547.

Appellee cites the following authorities: 26 Cyc. 1371, 1535; M., K. & T. Ry. Co. v. Freeman, 73 S. W. 544; Dillingham v. Russell, 73 Tex. 51, 11 S. W. 139, 3 D. R. A. 634, 15 Am. St. Rep. 753.

Having agreed on the law, however, they differ as to the application of the same to the particular facts in this case. Appellant’s first assignment is as follows:

“That in order for the plaintiff to recover herein it was necessary for him to allege and prove such facts as would show that the wrongful act of the janitor in destroying the papers, the value of which is sought to be recovered in this case, was done while said janitor was in the prosecution of the business of .the defendant herein, and, the evidence failing to show this, the court erred in rendering judgment for the plaintiff, and said judgment should have been for the defendant.”

We cannot sustain this assignment. Under the facts of this case, this janitor was acting within the scope of his employment at the time he cleaned out appellee’s office. Appellant testified:

“I furnished him with pass-keys to all of the rooms. * * * The occupants of the offices called on him pretty much to do something for them.”

W. M. Coleman testified that he instructed the janitor not to destroy anything in the office unless it was in the wastebasket or unless the occupant of the office instructed him to do so; that the janitor who destroyed plaintiff’s property had the same kind of instructions as the others, “He might go through the offices to get to the- windows to wash them,, but he was instructed not to clean the offices, and never move anything unless instructed by the occupants.” This witness was in the employ of the defendant, and looked after the janitors in the defendant’s office building.

From this last statement of this witness, it is clear that it was the duty of this janitor, when instructed to do so by appellee, to clean out his office and to remove this waste paper.

In disposing of this assignment, we also dispose of the second, third, fourth, fifth, sixth, and seventh assignments, as appellant raises the same legal proposition under these assignments.

Appellant’s eighth assignment is as follows:

“The court erred in rendering judgment for the plaintiff, because the evidence failed to show that the janitor, whom plaintiff alleges destroyed certain papers, the value of which is sought to be recovered herein, had the implied authority of defendant to remove said papers from the room occupied by plaintiff and destroy the same in such manner as to render the defendant liable for the value thereof.”

This assignment cannot be sustained, because under the testimony of W. M. Coleman, above quoted, it was the duty of this janitor to clean out the offices of the tenants, when-, ever instructed by them so to do.

By his ninth, tenth, and eleventh assignments of error appellant asserts that the court erred in rendering judgment for plaintiff, because the undisputed evidence shows that while plaintiff’s papers were thrown in the dust chute in the building in the afternoon, the same were not and could not have been destroyed until the following day, and could have been recovered by plaintiff, and because the undisputed evidence shows that the janitor did not destroy the papers, but if they were destroyed at all, they were subsequently destroyed by the boiler fireman.

The witness Baten testified that after he told the janitor to take the boxes, in a few minutes he came back very much excited, and told him that he had made a mistake and had burned up that box of valuable stuff; that he had thrown them into a chute in the building; that this chute runs to the boiler room, and the stuff that is thrown in there is destroyed below. “I asked him if there was any chance to recover it, and he said that there was no chance, that it tos gone, and begged me not to tell Mr. Wiess about it, and I didn’t tell Mr. Wiess for two days.”

Under this testimony of the witness Baten, the judgment of the court should not be disturbed on these assignments. This janitor was the servant of appellant, and appellee was authorized to act on his statement, and when the janitor told him that the papers were destroyed, it was not the duty of appellee to pursue the inquiry any further.

Under these assignments, appellant asserts the further proposition that appellee was guilty of contributory negligence in not telling appellant of the loss of these papers for two days. This assignment cannot be sustained. As said above, this janitor was the servant of appellant, and appellee was authorized to act on his statements. There was no duty, contractual or otherwise, resting on appellee to make this report to appellant at any particular time, nor did ap-pellee have notice of any facts that would have caused him to believe that these papers could have been recovered by any action taken by appellant. Appellee did not agree with the janitor to conceal this information from appellant, but simply did not inform appellant of the loss for two days. Where no duty rested on appellee to give this information to appellant within any special time, under the facts in this record, he cannot be guilty of negligence in failing to do so for two days.

By his twelfth assignment of error, appellant complains of the judgment of the court, because there is no evidence establishing plaintiff’s damage, and, further, that the court erred in rendering judgment at 6 per cent, interest on the amount of the judgment from January 1, A. D. 1915. The testimony amply sustains the court in rendering judgment for the amount of $297.50.

A party who recovers damages for the destruction of property by fire is entitled to interest on the value of the property from the time of its destruction. T. & P. Ry. Co. v. Tankersley, 63 Tex. 57; G., C. & S. F. Ry. Co. v. Jagoe, 32 S. W. 717. The following rule is announced in Railway v. Horne, 69 Tex. 649, 9 S. W. 442:

“The plaintiff was entitled to interest upon, the value of the property destroyed, and the jury were correct in allowing it to him, whether so charged by the court or not. The rule in such cases is the same as in an action of trespass, namely, the value of the property with interest from the date it was lost to the plaintiff. Railway Company v. Joachimi, 58 Tex. 456; Blum v. Merchant, Id. 400.”

Under this assignment, appellant makes the following additional proposition:

“Although generally in recovering damages for the negligent burning of property one is entitled to interest from the time of the destruction, he is not entitled to it where his pleading merely asked for the actual value of the property.”

Appellant’s petition concluded with the following prayer:

“Wherefore, by reason of the premises, the plaintiff has been damaged in the actual sum of $297.50. He therefore brings this suit and prays that the defendant be cited to answer, and on final trial that he have judgment against the defendant for the sum of $297.50, as well as costs of suit, and for general relief.”

Where, under the facts found, as a matter of law plaintiff is entitled to interest, the court should grant the same to him on a prayer for general relief. Watkins v. Junker, 90 Tex. 588, 40 S. W. 11; F. W. & D. C. Ry. Co. v. Greathouse, 821 Tex. 111, 17 S. W. 834. In this last case, the court said:

“We think, although there is no pleading asking for interest, that it is proper to allow it in this case on the amount of damages sustained.” Railway Co. v. Jackson, 62 Tex. 212.

Finding no error in this record, this case should be affirmed; and it is accordingly so ordered.

On Motion for Rehearing.

Appellant insists in his motion for rehearing that we erred in failing to sustain his twelfth assignment of error, which is as follows:

“Although generally, in recovering damages for the negligent burning of property, one is entitled to interest from the date of destruction, he is not entitled to it where the pleading merely asked for the actual value of the property.”

In the original opinion we overruled this proposition, citing Watkins v. Junker, 90 Tex. 588, 40 S. W. 11, and Ft. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834. Appellant insists that these cases were expressly overruled by the Supreme Court in the ease of S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 61, 70 S. W. 200. This is not our construction of the Addison Case, nor, as we construe the decisions of our courts, have they held that the Addison Case overruled the eases to which we refer. These cases have, been cited frequently by our courts since the decision of the Addison Case..

Appellant relies especially on St. L. & S. W. Ry. Co. of Texas v. Starks, 109 S. W. 1003, to sustain this assignment. In this case Judge Hodges wrote the opinion. The appel-lee had brought suit against the railway company for $4,000 damages for the destruction of property by fire alleged to have been caused by the negligence of the railway company ; $349.15 was claimed for the destruction of personal property, and $3,650.85 for the value of the house burned. On the trial of the case it was agreed that the house was worth $1,200 at the time of the fire. The court instructed the jury to return a verdict for $1,365.60 for the house; he arriving at this amount by adding interest at 6 per cent, per annum from the destruction of the house • to the date the judgment was rendered. Judge Hodges said:

“It had been agreed between the attorneys upon the trial that the value of the property destroyed was $1,200; and the court added to • this sum interest on that amount calculated at the legal rate from the date of the fire till the time of trial, upon the assumption that the plaintiff, if entitled to a judgment, should, as a matter of law, recover the value of the property together with legal interest from the time of its destruction. There can be no doubt about the correctness of this as an abstract proposition fixing the measure of damages which may, under proper pleadings, be recovered in cases where property is destroyed by fire; but its applicability to any given case must depend upon the state of the pleadings. In the case under consideration the appellee sought to recover only the value of the property destroyed, and in her original petition specified separately the'value of each article of personal property, aggregating $349.15, and also stated separately the value of the house burned at $3,650.85, making a total of $4,000, for which a judgment was asked. In this manner the damages claimed were limited to the actual value of the property lost. Interest upon this value, under this state pf the pleadings, could not have been added by the jury or by the court to the amount of her recovery, had it been found that the aggregate value amounted to the full sum sued for. Railway Co. v. Hooser, 44 Tex. Civ. App. 229, 97 S. W. 710; Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200. Had the pleadings claimed interest specially, or been- so drawn as to permit the construction that damages in excess of the actual value of the property was prayed for, then interest might follow as a matter of law. It would not be improper, under such circumstances, for the court to instruct the jury to include such interest in the verdict. We think the charge complained of was error and should not have been given. Any verdict in excess of the actual value of the property destroyed is not in this case supported by the pleadings, and should not have been directed by the court; neither could it have been found by the jury of its own accord had it been submitted as an issue of fact.”1

In this opinion Judge Hodges recognizes and announces the rule to be that plaintiff could have recovered this interest, if his pleadings had been so drawn as to permit the construction that damages in excess of the actual value of the property was prayed for, saying, “Then interest might follow as a matter of law.”

It is not stated in this opinion that appel-lee prayed for general relief. As we construe the case cited by appellant, it sustains the announcement made by us in overruling this twelfth assignment, in that, where plaintiff is entitled to'interest as a matter of law, a prayer for general relief is a sufficient basis for the recovery thereof.

Motion for rehearing overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J. KEY, C. J.

text:
    FORD v. STATE.
    (No. 5128.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1919.)
    1. Courts <©=>207(3) — -Jurisdiction of Courts of Civil Appeals — Injunction.
    Courts of Civil Appeals in Texas have no authority to issue original writs of injunction, but authority is conferred upon them by Rev. St. 1911, art. 1592, to issue such writs where they may be necessary to enforce their jurisdiction.
    2. Courts <©=>207(3) — Aider of Jurisdiction of Appellate Court.
    Where it is necessary to issue a writ of injunction to maintain the status quo or to preserve the corpus of the subject-matter of the litigation pending appeal, the writ is in aid of the jurisdiction of the appellate court in which the appeal is pending.
    3. Appeal and Error <©=>456 — Supersedeas —Injunction in Aid of.
    In suit for temporary injunction restraining defendant from selling intoxicating liquors at retail, after defendant’s appeal from injunction order, he having given bond conditioned as a supersedeas bond, the state, on motion to the Court of Civil Appeals, is entitled to injunction restraining defendant from pursuing the occupation.
    4. Appeal and Error <@=>488(2) — Judgment Refusing Permanent Injunction — Effect on Temporary Injunction.
    A judgment refusing a permanent injunction does not affect a temporary injunction in force at the time the judgment dissolving the injunction was rendered, so that an appeal from such final judgment leaves the temporary injunction in force.
    5. Appeal and Error <©=>485(2) — Supersede-as Bond — Suspension of Execution.
    In view of Rev. St. 1911, arts. 2101, 2103, relative to supersedeas bonds, an appeal from a judgment of any character upon a supersedeas b,ond does not suspend the judgment, but only stays its execution pending appeal; the judgment itself remaining in full force until reversed.
    6. Appeal and Error <©=>488 (2) — Supersede-as — Effect on Judgment.
    A judgment, which requires no process to enforce its execution, as a prohibitory injunction, is not affected by an appeal therefrom on a supersedeas bond, as the judgment is not suspended pending the appeal, but execution alone is stayed.
    7. Constitutional Law <©=>32 — Intoxicating Liquors <®=>26£L-Injunction Suit — Jurisdiction of State Court — Prohibition Amendment to Federal Constitution.
    Court of Civil Appeals has jurisdiction of subject-matter of state’s suit to restrain defendant from selling intoxicants at retail, that is, prohibition of the. sale of intoxicants, despite adoption of prohibition amendment to Constitution of United States; amendment not being a complete law, and Congress having enacted no law .for its enforcement, while it gives states concurrent power.
    8. Appeal and Error <©=>456 — Injunction Suit^Balancing Injuries.
    Court of Civil Appeals, on appeal by retail liquor dealer from temporary injunction restraining him from selling, and on motion of Attorney General for injunction to prohibit dealer from pursuing occupation pending appeal, will not deny motion on equitable ground of balancing injury to state against injury to dealer by being deprived, in case of reversal, of privilege of pursuing lawful business.
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Suit for injunction by the State of Texas against John Ford. From decree for the State, defendant appeals, and the State moves for injunction against him. Motion granted, and defendant enjoined as prayed until further order.
    E. B. Robertson, of Austin, for appellant.
    O. M. Gureton, Atty. Gen., W. A. Keeling, First Asst. Atty. Gen., and Leigh Clark, Dist. Atty., of El Paso, for the State.
   JENKINS, J.

On October 25, 1918,' the state of Texas filed its petition in the Fifty-Third judicial district, praying for a temporary injunction against appellant, restraining him from selling intoxicating liquors at retail, and alleging that he was illegally pursuing the occupation of retail liquor dealer.

On the same day the court granted said injunction as prayed for.

On January 18, 1919, the case was tried on its merits, and the court entered judgment perpetually enjoining the defendant from selling intoxicating liquors in this state. From this judgment the appellant gave notice of appeal, and, the court having fixed his appeal bond at $5,000, he gave such.bond, conditioned as required for a supersedeas bond, and the same was on January 31,1919, approved by the clerk of said court.

The Attorney General has filed in this court a motion for injunction against appellant to prohibit him from pursuing the occupation of a retail liquor dealer, alleging upon information and belief that appellant is about to, and unless restrained 'by the order of this court will, engage in the occupation of a retail liquor dealer, which allegation is duly verified.

This petition has been submitted to this court upon oral argument by both parties, appellant’s counsel admitting that it was the purpose of appellant to engage in the occupation of a retail liquor dealer pending the appeal, and perhaps he is now doing so.

It is the contention of appellant: (a) That this court is without jurisdiction to issue a writ of injunction herein, in that such writ would be an original writ, and not one issued in aid of our jurisdiction; (b) that, the appeal having been perfected by giving a supersedeas bond, the judgment enjoining appellant from pursuing such occupation is suspended until the case is decided by this court.

Courts of Civil Appeals in this state have no authority to issue original writs of injunction, but authority is conferred upon them by statute to issue such writs where the same may be necessary to enforce their jurisdiction. R. S. art. 1592.

Where it is necessary to issue a writ of injunction to maintain the status quo, or to preserve the corpus of the subject-matter of the litigation pending appeal, such writ is in aid of the jurisdiction of the appellate court in which the appeal is pending. Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 714; Ry. Co. v. Hornberger, 141 S. W. 312, 313; Ry. Co. v. Hornberger, 106 Tex. 106, 157 S. W. 744; Union Sawmill Co. v. Felsenthal, 84 Ark. 494, 106 S. W. 677; 2 R. C. L. § 97; 22 Cyc. 1010; Lumber Co. v. Corbell, 84 Ark. 596, 106 S. W. 677.

The subject-matter of this suit is to re strain appellant from an alleged violation ox law, not from, the date of final judgment herein only, but from the day the temporary in junction was granted. If the appellant is permitted to pursue the occupation of a liquor dealer until this ease is finally determined upon its merits, which may be several years hence, and it should be then held that he had during each day of said time been violating the law, much of the subject-matter of this suit would have passed out of existence by the lapse of time. A temporary injunction having been granted prior to the rendition of judgment herein, and, the same not having been dissolved, the status quo at the time final judgment herein was rendered was that appellant stood enjoined from pursuing the occupation of a liquor , dealer, and for this reason the state is entitled to an injunction herein, unless the temporary injunction had expired by its own terms, as was the case in Ft. Worth Ry. Co. v. Rose-dale Ry. Co., 68 Tex. 163, 7 S. W. 381.

It is the settled law in this state that a judgment refusing a permanent injunction does not affect a temporary injunction in force at the time the judgment dissolving the injunction was rendered, hence an appeal from such final judgment leaves the temporary injunction in force. Williams v. Pouns, 48 Tex. 141; G., C. &. S. F. Ry. Co. v. Ft. W. & N. O. Ry. Co., 68 Tex. 105, 2 S. W. 199, 3 S. W. 564; Ft. W. Ry. Co. v. Rosedale Ry. Co., 68 Tex. 168, 7 S. W. 381.

Whether this be true for the reason that an appeal on a supersedeas bond suspends the judgment, as has sometimes been loosely said, or suspends only its execution, or because an appeal from a final judgment neither suspends the judgment granting the temporary injunction, nor^ts execution, there being no appeal therefrom, it is apparent that the rule applies equally to cases where the final judgment, as in this ease, granted a permanent injunction. In the majority of cases hereinafter cited, the trial court granted a permanent injunction.

We might well rest our decision herein, except al to the federal question hereinafter discussed, upon the authority of these decisions, and hold that, even though the judgment permanently enjoining appellant from pursuing the occupation of a retail liquor dealer has been suspended by the appeal herein, the temporary injunction theretofore granted, has not been suspended, and that the court in aid of its jurisdiction to enforce such temporary injunction and to preserve the status quo has the power to issue the injunction herein prayed for. But as the facts of the case present the issue as to whether an appeal upon a supersedeas bond from a purely prohibitive injunction, suspends such judgment, and as this question has never been decided by the Supreme Court of this state, we think its importance demands that we pass upon thqf issue.

We hold that an appeal from a judg'ment of any character, upon a supersedeas bond, does not suspend the judgment, but only stays its execution pending the appeal. 2 R. C. L. § 97, p. 122; Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411; Mull v. McKnight, 67 Ind. 525; Randles v. Randles, 67 Ind. 434; Walls v. Palmer, 64 Ind. 493; Padgett v. State, 93 Ind. 397. The judgment itself remains in full force until it is reversed. If it be affirmed, the appellate court does not enter a new judgment in the case, nor revive the judgment of the trial court, but only removes the impediment to its execution. In this connection, we call attention to- the fact that a supersedeas bond, as defined by our statute, does not purport to suspend the judgment from which the appeal is taken, but only to suspend “the execution of the judgment.” R. S. arts. 2101 and 2103.

If it be true that the judgment of the trial court is not suspended pending the appeal, but that the only effect of such appeal is to stay its execution until the determination of the cause on appeal, it follows that a judgment which requires no process to enforce its execution is not affected by an appeal therefrom. A judgment that is purely prohibitive, and in no part mandatory, and which does not interfere with the possession of property, is such a judgment. The execution of judgments is enforced by the issuance of writs, such as execution, order of sale, etc. A purely prohibitory injunction is self-executing. It needs no writ for its enforcement, and there is no writ known to the law for its enforcement. Padgett v. State, supra. A court may punish a party for contempt if he disobeys such judgment, but this is not a writ to enforce the judgment; it is only a means to prevent its nonenforcement. As was said in Padgett v. State, supra, there is no provision for enforcing a purely prohibitory judgment by process, and none is needed, for the judgment enforces itself.

In support of the proposition that an appeal from a purely prohibitive injunction does not suspend such judgment, though a bond be given conforming in all respects to a supersedeas bond, we cite State ex rel. Gibson v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, 4 Ann. Cas. 229; Union Sawmill Co. v. Felsenthal, 84 Ark. 494, 106 S. W. 676; Barnes v. Typ-Union, 232 Ill. 402, 83 N. E. 932, 14 L. R. A. (N. S.) 1155, 122 Am. St. Rep. 129; Powhatan Coal Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257, 9 L. R. A. (N. S.) 1233; Sheridan v. Reese, 121 Da. 226, 46 South. 218; Dindsay v. Dist. Co., 75 Iowa, 509, 39 N. W. 817; Smith v. Tel. Co., 83 Ky. 269; Central Union v. State, 110 Ind. 203, 10 N. E. 922, 12 N. E. 136; Hawkins et al. v. State, 126 Ind. 294, 26 N. E. 43; Heinlen v. Cross, 63 Cal. 44; Cole v. Edwards, 104 Iowa, 373, 73 N. W. 863; Wilkinson v. Dunkley, 141 Mich. 409, 104 N. W. 772; R. C. D. § 97; Elliott App. Pro. §§ 391 and 392; 2 Cyc. 913; 22 Cyc. 1010.

The statutes of the United States in reference to appeals are substantially the same as those of this state, except as to an additional feature in our statute, hereinafter referred to. U. S. Comp. St. § 1660, states what is necessary in a supersedeas bond. Section 1666 provides for a supersedeas “in any case” by serving a writ of error on the opposite party, and “giving the security required by law.” “Any ease” is equivalent to the expression “every final judgment” in our statute. R. S. art. 2078. Supersedeas of the judgment of the trial court is a matter of right. McCourt v. Singers-Bigger, 150 Fed. 102, 80 C. C. A. 56. But the decisions of the federal courts uniformly hold that an appeal upon a supersedeas bond from a merely prohibitory injunction does not suspend the judgment. Hovey v. McDonald, 109 U. S. 161, 3 Sup. Ct 136, 27 L. Ed. 891; Leonard v. Ozark Land Co., 115 U. S. 468, 6 Sup. Ct. 127, 29 L. Ed. 445; Knox v. Harshman, 132 U. S. 14, 10 Sup. Ct. 8, 33 L. Ed. 249. In the latter case, Mr. Chief Justice Ffiller, speaking for the court, said:

“The general rule is well settled that an appeal from a decree granting, refusing, or dissolving an injunction, does not disturb its operative effect.”
The ground upon which all of these decisions rests is that an appeal does not suspend a judgment; that a supersedeas merely suspends execution; and that a judgment that' is prohibitory only is self-executing, and needs no process to put it into execution.
Mr. Elliott, in his work on Appellate Procedure (section 392), says:
“Where a judgment or decree executes itself, that is, where no ministerial officer is necessary to put it into effect, the supersedeas does not alter the state of things created by the judgment from which appeal is prosecuted.”

In addition to the reasons hereinbefore stated as to why an appeal upon a superse-deas bond in this state does not apply in the instant case, we call attention to the fact that our statute defining the requisites of a supersedeas bond contains a provision which is not found in the statute of the United States in reference to a supersedeas bond, viz. that, should the judgment of the Supreme Court or the Court of Civil Appeals be against the appellant, he “shall perform its sentence, judgment or decree.” If a case is affirmed, the judgment, sentence, and decree of the appellate court is that the judgment of the lower court shall he enforced. As hereinbefore stated, this does not mean that the judgment of the lower court is revived, but that it has been in force all the time, and that it shall be performed as originally rendered. The judgment of the lower court in the instant case is that appellant shall desist from selling intoxicating liquor from and after the date of such judgment. If he continues such sales until this case is decided on appeal by this court, and also by the Supreme Court, should it be carried to that court, and should the judgment of the trial court be finally affirmed, the lapse of time will render it impossible for the appellant to perform such, judgment. From this, it is apparent that our statute does not provide for a supersedeas1; in such a case as this'.

The appellant cites, in support of his contention, Williams v. Pouns, G., C. & S. F. Ry. Co. v. F. W. & N. O. Ry. Co., and F. W. Ry. Co. v. Bosedale Ry. Co., supra; and Lee v. Broocks, 51 Tex. Civ. App. 344, 111 S. W. 778. As we have seen, these cases are against him, in that they hold that the temporary injunction was not suspended by his appeal.

The case of Haley v. Walker, 141 S. W. 166, cited by appellant, is not in point, for the reason that the injunction in that case was properly mandatory. Appellant also cites the case of ¿Etna Club v. Jackson, 187 S. W. 971. In that case the court awarded a mandamus, requiring the district judge before whom the case was tried to fix the amount of a supersedeas bond; none having been fixed by statute. The effect of the decision was to hold that an appeal upon a supersedeas bond would suspend the judgment which was purely prohibitory.

In this, we think the honorable Court of Civil Appeals was in error: (1) Because our statute, as appears from the condition of a supersedeas bond, does not contemplate a supersedeas in such a case; (2) because it is well settled, as shown by the authorities hereinbefore cited, that an appeal from such a judgment does not suspend the same; and (3) because there had previously been a temporary injunction issued, which remained in force and effect, and therefore the suspension of the judgment granting a permanent injunction would have been of no avail to appellant, and the fixing of the amount of a supersedeas bond would have been an idle thing.

The decision in the ¿Etna dub Case, supra, is based upon what we think is a misconstruction of the decision by our Supreme Court in Waters-Pierce Oil Co. v. State, 107 Tex. 7, 106 S. W. 330. That was a suit in which the state recovered a penalty against the oil company for violating the anti-trust laws of the state, and appointed a receiver to take charge of the property and conduct the business of the company pending the appeal. There was no issue as to an injunction in the case. The issue was whether the appeal bond, which contained the requisites of a supersedeas bond, suspended the power of the receiver to act pending the appeal. The court, after holding the judgment appointing the receiver was a final judgment, cited our statute which grants the right of appeal from all final judgments in civil cases, and also the statute as to a supersedeas bond.

The language used in reference to these statutes might seem broad enough, upon a casual reading, to sustain the decision in the ¿Etna Club Case. It is not, however, the language used in an opinion, but the point decided, which constitutes jthe decision. All else is dictum. The point decided is determined by the pleadings and the facts. The issue was as to whether the law with reference to the effect of a supersedeas bond applied to the facts of that case. After citing the facts and the provisions of the statute, Mr. Justice Brown said:

“It only needs to be said that the law applies to this case, and the enforcement of the order appointing the receiver was suspended by the appeal.”
The correctness of the decision cannot be doubted. Beferring to the broad language used by Mr. Justice Brown, it will be seen that he says that—
“When the appellant or plaintiff in error complies with the law, the judgment cannot be enforced [italics ours] during the pendency of the appeal.”

This is true where is requires some process to be issued by the court, or some act of a ministerial officer to enforce the judgment. But, as we have before stated, a purely prohibitory judgment is not of this character.

The appellant insists that this court has no jurisdiction of the subject-matter of the main suit, viz. prohibition of the sale of intoxicating liquor, for the reason that that subject has been relegated to the exclusive control of Congress, by reason of the adoption of the prohibition amendment to the Constitution of the United States. He cites in support of his contention the case of Ry. Co. v. State of Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237.

We think the facts of this ease clearly differentiate it from the instant case, but we do not deem it necessary to discuss such facts in detail. It was there held that the state had lost the right to legislate on the subject of regulating the hours of labor of railroad employés engaged in interstate commerce, for the reason that Congress had legislated fully on the subject, prescribing such hours of labor and fixing the penalty for violation of said act.

The prohibition amendment to the federal Constitution is not a law complete in itself, in that it fixes no penalty for its violation, and Congress has enacted no law for its enforcement.

A complete answer is further found in the fact that the constitutional amendment prohibiting the manufacture and sale of intoxicating liquor expressly confers upon the states concurrent jurisdiction to enforce the same. Section 2 of said amendment reads as follows:

“The Congress and the several states shall ha’te concurrent power to enforce this article by appropriate legislation.”

Appellant suggests that we should deny this motion on the equitable grounds of balancing injuries. His argument is that, if the judgment of the trial court should be affirmed, the state will suffer no serious injury by appellant’s continuing to sell intoxicating liquor until that time; whereas, if this case should be reversed, he will suffer serious injury by being deprived of the privilege of pursuing a lawful business, pending this appeal.

We cannot agree with appellant that if this case is affirmed the state will suffer no serious injury by denying the injunction herein prayed for. If the law under which the ease against appellant was brought is valid (a question which we are not called upon to decide in this proceeding), the de-fehdant will commit a felony every time he sells a drink of intoxicating liquor. We know of no greater injury that could be inflicted upon the state than the open and continuous violation of its laws. We cannot weigh the profits of an individual of which he might be unlawfully deprived against the loss to society, by reason of the continuous violation of the laws of the state. If appellant’s threatened acts may be found to be in violation of the penal laws of the state, there is no ground for balancing injuries.

For the reasons stated, the motion of the state is granted, and appellant is hereby enjoined as prayed for, until the further order of this court.

Motion granted.

BRADY, J., not sitting.

KEY, C. J.

While I concur in most that is said in the opinion of Mr. Justice JENKINS and in the result announced in his opinion, I do not concur, in his view to the .effect that the preliminary injunction issued by the district judge is still in force; and, if prepared tp make that ruling, I would be inclined to hold that the state’s remedy would be a proceeding asking to have appellant punished for contempt, and not the issuance of another injunction.

The fiat of the district judge upon which the preliminary injunction was issued reads as follows:

“In Chambers, Oct. 25, 1918. On showing made, plaintiff’s application for a temporary injunction granted as prayed for, and the clerk of this court is hereby directed to forthwith issue a temporary injunction enjoining and restraining the defendant herein as prayed for until the further orders of this court herein made, and entered.”

The temporary writ of injunction followed the fiat of the judge, and enjoined and restrained appellant from doing the things therein referred to until further ordered by the court. . The judgment rendered upon the final trial was a further order of that court, and when it was rendered, in my opinion, the temporary injunction ceased to exist by force of its own terms; and therefore the state has no right to have appellant punished for violating that writ. The trial judge had the power to limit the life of the temporary writ of injunction, and I believe he intended to do so when he placed in his fiat the language, “until the further orders of this court herein made and entered”; and, when the contingency therein referred to arose, the temporary writ of injunction expired by its own terms.

Also, it is immaterial that the contingency referred to consisted of a final judgment perpetually restraining appellant from doing the things complained of, and it is also immaterial that an appeal -has been perfected from that judgment. The rendition of that judgment was a further order of that court relating to the question of injunction, and, being a further order, as soon as it was made the temporary writ of injunction expired by its own terms and in accordance with the fiat of the district judge.

If the preliminary injunction is still in force, the appeal vests in this court the power to punish appellant for its violation, and, if that be its status, the state should have inaugurated a contempt proceeding, instead of one asking to have another writ of injunction issued. G., G. & S. F. Ry. Co. v. F. W. & N. O. Ry., 68 Tex, 98, 2 S. W. 199, 3 S. W. 564. But, as stated above, I do not believe that perfecting, the «appeal has kept the temporary injunction alive, because and for the reason that before the appeal was perfected it had ceased to exist.

Upon the other questions involved in the motion, I concur in and approve the opinion prepared by Mr. Justice JENKINS.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    BURK v. BURK.
    (No. 6183.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1919.)
    Appeal and Error @==>753(2) — Appeal erom Adverse Decree — Record.
    Where no assignments of error are brought up in the record, there is nothing upon which to base a brief; and, where the record fails to show that motion for new trial was filed, judgment will be affirmed.
    Appeal from District Court, Jim Wells •County; V. W. Taylor, Judge.
    Divorce suit by Joe Burk against Emily Burk. Divorce denied, and plaintiff appeals.
    Affirmed.
    L. Broeter, of Alice, for appellant.
   ELY, C. J.

Appellant sought to obtain a •divorce from the appellee, his wife, which was denied him by the court.

The record fails to show that a motion for new trial was filed, and no assignments of error are brought up in the record. Where appellant secured the assignments which appear in his brief is not disclosed. In the •absence of assignments of error, there is •nothing upon which to base a brief.

The judgment will be affirmed.


author: HODGES, J.

text:
    JANSEN v. MITCHELL.
    (No. 2073.)
    '(Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Judgment @=>707 — Estoppel by Judgment-Binding Force on One Not Party.
    A judgment renderéd in a proceeding to which the present plaintiff was not a party is not binding on him by way of estoppel.
    2. Brokers @=>61(2) — Right to Commission —Excuse por Failuee to Convey.
    Fact that one who engaged a realty broker to sell land owned only a half interest was no justification for his failure to convey title, excusing his refusal to pay commission to the broker who procured a purchaser; he having ■stated at the time the broker was engaged that ■his title was good.
    Appeal from Titus County Court; C. E. Bryson, Special Judge.
    Action by A. S. Mitchell against H. A. Jansen. From judgment for plaintiff, defendant appeals.
    Affirmed.
    S. F. Caldwell, of Mt. Pleasant, for appellant.
    S. P. Pounders, of Mt. Pleasant, for appel-lee.
   HODGES, J.

The appellee, a real estate agent, sued and recovered a judgment against appellant for the sum of $220 as commissions on the sale of a tract of land. The facts show that the appellant resided in another state, and that he had an interest in a tract of land in Titus county, where the ap-pellee was engaged in the real estate business. A correspondence took place between the parties which induced the appellee to undertake the sale of a specified tract upon terms furnished. He found a purchaser willing, ready, and able' to take the land upon the terms proposed by the appellant; but the sale was not completed, because of conditions for which the appellant was responsible.

AVe think the demurrers to the plaintiff’s amended original petition were properly overruled. While the averments therein might have been more specific and more in accord with the ,rules of pleading, the petition was not fatally defective. The correspondence relied on by the appellee to constitute a contract of employment was clearly sufficient. The judgment pleaded by the appellant as an estoppel against the appellee was not binding oh the latter, as he Was not a party to that proceeding. The .fact that the appellant owned only- a half interest in the land was no defense for his failure to convey the title, as he had stated at the time appellee was engaged that his title was good. He must have known that his representations would be relied on.

The judgment is- affirmed.


author: WILLSON, C. J.

text:
    TEXAS SEED & FLORAL CO. v. SCHNOUTZE.
    (No. 2110.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 10, 1919.
    Rehearing Denied March 6, 1919.)
    1. Corporations @=>503(2) — Venue.
    Where contract of sale of broom corn seed was entered into in D. county, and seed was sent by common carrier to K. county, and buyer was damaged in latter county from fact that seed was cane seed and grew into a field of cane instead of a field of broom corn, cause of action in buyer’s favor arose in K. county, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, exception 24, only in case delivery was in K. county.
    2. Sales @=>202(6) — Delivery—Common Carriers— O. O. D. Shipment.
    Property in a C. O. D. shipment passes to purchaser on delivery of goods to carrier, in absence of anything showing intention of parties to contrary.
    Appeal from District Court, Kaufman County; J. R. Bond, Judge.

      Action by W. P. Schnoutze against the Texas Seed & Floral Company. Judgment for plaintiff, and defendant appeals.
    Reversed, with instructions.
    Appellee resided in Kaufman county, where he had land on which he wished to grow a crop of broom corn. At his instance one Spikes, in Dallas county, requested appellant, a private corporation under the laws of Texas, and who transacted business in said Dallas county, to send a named quantity of standard broom com seed C. O. D. to appellee at Terrell, in said Kaufman county. Appellant sent seed as directed, by a common carrier, but, appellee claimed, sent cane instead of broom corn seed, and appellee further claimed he, in ignorance of the fact that they were cane seed, and relying upon same being broom com seed, planted the seed, and grew therefrom a crop of cane, which was worth more than $3,000 less than a crop of broom com would have been wortfi. His suit, commenced in Kaufman county, was for the damages he claimed he had suffered. Appellant, by a plea conforming to the requirements of Act April 2, 1917, amending article 1903, Vernon’s Statutes (General Laws, p. 388 [Vernon’s Arm. Civ. St. Supp. 1918, art. 1903]), and duly filed, asserted a right it claimed to be sued in Dallas county, where it resided, instead of in Kaufman county. Appellee, as permitted by said act, controverted appellant’s claim, on the ground that his cause of action, or a part thereof, against appellant arose in Kaufman county, and therefore was within exception 24, article 1830, Vernon’s Statutes. The appeal is from an order overruling appellant’s plea of privilege.
    Spence, Haven & Smithdeal and W. J. Rutledge, Jr., all of Dallas, for appellant.
    Thos. R. Bond, of Terrell, for appellee.
   WILLSON, C. J.

(after stating the facts as above), It appeared without dispute in the testimony that the contract between the paAies was made in Dallas county, and it did not appear that performance thereof on appellant’s part was to be in Kaufman county. Therefore, if a cause of action in ap-pellee’s favor arose in Kaufman county, it must have been because appellant breached the contract in that county by delivering cane seed there to appellee instead of broom corn seed. It conclusively appeared from the testimony that the instruction of Spikes (representing appellee) to appellant was to send the seed O. O. D. to appellee at Terrell, in Kaufman county; and that appellant, conforming to the instruction, delivered the seed to a common carrier in Dallas county, to wit, the Wells Fargo & 'Oo. Express, for carriage O. O. D. to appellee at Terrell. If the delivery of the seed to the carrier in Dallas county was in legal effect a delivery thereof to appel-lee, then the court erred when he overruled appellant’s plea of privilege; for in that event appellee’s cause of action arose in Dallas county and not in Kaufman county. 1 C. J. 1149; 25 Oyc. 1069, 1181, 1182. The rule is stated by the author of the article on “Sales” in 35 Cyc. at page 193, as follows: '

“Ordinarily a delivery of goods by the seller to the can-ier designated by the purchaser, or to one usually employed in the transportation of goods from the place of the seller to that of the purchaser, is a delivery to the purchaser, the carrier becoming the agent or bailee of the buyer.”

There is a conflict in the authorities as to whether the rule stated applies where the delivery to the carrier was for carriage O. O. D. to the purchaser, as it was in this case.

“In some cases,” said the author of the article referred to, “it has been held that the property remains in the seller until payment has been made by the buyer, the carrier being considered the agent of the seller; but in other cases it is held that where the 'shipment is G. O. D. the carrier is the agent of the buyer for the purpose of transportation, and of the seller for the purpose of collection, and unless a contrary intention appears the property in the goods passes upon their delivery to ^the carrier, although the buyer is not entitled to the possession until payment is made.” 35 Oyc. 335; and see also 1 Mechem on Sales, § 793 et seq.

The Court of Criminal Appeals of this state holds to the rule that the property in the O. O. D. shipment passes to the purchaser on the delivery of the goods to the carrier, in the absence of anything showing the intention of the parties to have been to the contrary. Keller v. State, 87 S. W. 669, 1 L. R. A. (N. S.) 489, where the authorities are reviewed by that court. And the Supreme Court, it seems, has adopted the same view of the question. Robinson v. Railway Co., 105 Tex. 185, 146 S. W. 537; and see Lippman v. Jeffords-Schoenman Products Co., 184 S. W. 536. We think, therefore, that the question should be treated as settled in favor of the rule adopted by the Court of Criminal Appeals and approved, in effect, by the Supreme Court. It follows we are of opinion it appeared that appellee’s cause of action against appellant arose in Dallas county, and therefore that the trial court erred when he overruled appellant’s plea of privilege and refusal to transfer the cause to Dallas county for trial.

The judgment will be reversed, with instructions to the court below to transfer the cause to Dallas county for trial in conformity to the direction in article 1833, Vernon’s Statutes.
      <®=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes