author: BUCK, J.

text:
    MURRAY CO. v. JACKSBORO OIL & MILLING CO. et al.
    (No. 8815.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 30, 1918.
    Rehearing Denied June 1, 1918.)
    1. Fixttjbes <§=^>19 — Machinery Sold Subsequently to Mortgage.
    Where land on which gins stood was sold, and deed'«of trust given, and company with notice of deed sold machinery for gins, chattel mortgage to secure price stipulating it should remain personalty, as against vendor of gins, seeking to foreclose deed of trust, machinery became part of realty, and deed could be foreclosed on it.
    2. Mortgages <S=^>447 — Foreclosure — Description of Property.
    Petition by vendor of ginning plants, seeking foreclosure of deed of trust on machinery subsequently installed therein by buyers, held, sufficiently to describe such machinery.
    Appeal from District Court, Jack County; F. O. MeKinsey, Judge.
    Suit by the Jacksboro Oil & Milling Company against W, H. and C. A. Simmons and the Murray Company. From judgment for plaintiff, defendant company appeals.
    Judgment affirmed in part, and undisturbed in part.
    Stark & Stark, of Jacksboro, and J. J. Eckford, of Dallas, for appellant. J. P. Simpson and J. D. McComb, both of Jacks-boro, for appellees.
   BUCK, J.

This suit was filed February 14, 1916, by appellee Jacksboro Oil & Milling Company against appellees W. H. and C. A. Simmons and appellant, the Murray Company, to recover the balance due upon two promissory notes in the sum of $2,750 each, executed by W. H. and C. A. Simmons, payable to plaintiff’s order, dated December 16, 1910, and due December 15, 1911, and December 15, 1912, respectively, with interest at 10 per cent, and 10 per cent, attorney’s fees. Plaintiff also sought a foreclosure under a deed of trust, of even date with the notes, executed by W. H. and C. A. Simmons to F. N. Foxhall/'trustee, to secure the said notes; the deed of trust being upon two tracts of land, one in the town of Jean, and the other in the town of Loving, Young county, Tex., together with the gin plants there, including engines, boilers, gin stands, etc. Appellant was made a party defendant; the petition alleging that it was claiming some sort of a lien on said lands and property, but if it had any lien thereon that the same was inferior and subordinate to the lien held by plaintiff. Appellant answered, disclaiming any interest or any lien on the property other than such machinery as was described in a certain chattel mortgage, dated July 2, 1913, and recorded in Young county on July 12, 1913. It alleged that it had sold to W. H. and C. A. Simmons on July 2, 1913, certain gin machinery, consisting of six 70-saw Murray steel huller gins complete, together with certain described attachments and accessories, and that said W. H. and O. A. Simmons, hereinafter called Simmons Bros., in payment thereof executed to the appellant their four certain promissory notes, bearing date of July 2, 1913, in the sum of $426 each, payable as follows, first, November 1, 1913, second, December 1, 1913, third, November 1,1914, and last December 1, 1914; that on August 5, 1913, the appellant sold certain other gin machinery to Simmons Bros., who executed in payment thereof two notes of even date, in the sum of $165.75 and $165, respectively, both maturing November 15, 1913; that to secure the payment of said notes said Simmons Bros, executed to R. H. Nevitt, trustee, their certain chattel mortgage of even date,' giving a lien on said property so sold; and that in said chattel mortgage it was stipulated that the property therein described should remain as personalty wherever located until the indebtedness thereon, as provided for by said chattel mortgage, should be paid. Defendant the Murray Company further alleged that its lien under the chattel mortgage on said machinery was superior to any claim of the plaintiff set up in its petition; that plaintiff’s deed of trust under which it claimed was given to secure notes existing long before the execution of the chattel mortgage by Simmons Bros, to the Murray Company, and long before the machinery therein described was installed or placed upon the premises; that plaintiff paid no value for said machinery, and was not in the position of an innocent purchaser thereof. In a supplemental petition, plaintiff pleaded that the machinery upon which defendant the Murray Company claimed its mortgage was installed in the gins and became a permanent fixture to the real estate covered by plaintiff’s mortgage long before -the execution of the purported chattel mortgages under which the Murray Company claimed the-lien; that at the time said machinery was installed plaintiff’s mortgage or deed of trust upon the property described therein was of record, and that the defendant the Murray Company was fully aware thereof; that the Murray Company knew at the time the machinery, it sold to Simmons Bros, was installed that there was in said gin other machinery covered by the plaintiff’s mortgage, and which constituted a part of the realty, and said defendant knew that in order for its machinery to be installed the machinery covered by plaintiff’s mortgage would have to be removed, which was done by Simmons Bros, with the knowledge and consent of the Murray Company, and without the consent or knowledge of plaintiff. Wherefore plaintiff pleaded as in its original petition. A trial was had before the court, without the aid of a jury, and judgment was rendered against the Simmons Bros., severally, on the notes given to plaintiff, in the sum of $5,835.87, with interest and attorney’s fees, with a foreclosure under the deed of trust; said foreclosure being made superior to the right of foreclosure on the part of the defendant the Murray Company. Judgment was given in favor of defendant the Murray Company on its cross-action, against Simmons Bros., severally, for its debt, and for foreclosure on the machinery described in its chattel mortgage, subject, however, to the judgment rendered in favor of the plaintiff. From this judgment the defendant the Murray Company has appealed.

The evidence discloses that in December, 1910, Simmons Bros., who were conducting gins at Loving and Jean, owed the Murray Company $5,500 for gin machinery purchased from the Murray Company and which had been installed in the gins; that the Murray Company was pressing them for payment and they applied, through F. N. Foxhall, president of the Jacksboro Oil & Milling Company, to the latter for a loan to take up this paper ánd liquidate the debt; that the Jacksboro Oil & Milling Company extended Simmons Bros, the loan requested and gave them a check for $5,500 with which to pay the Murray Company, and the latter executed a release; that thereupon Simmons Bros, executed a mortgage on the gin plant to secure this debt, and executed two notes in the sum of $2,750 each; that on these notes payments were made in the sum of $500 each, and interest paid thereon to December 12, 1912; that on December 10, 1915, Simmons Bros, executed their renewal note in the sum of $5,835.S7 to the Jacksboro Company, said notes reciting that it was a renewal extended on the balance due on the two promissory notes before described, and that it was the intention of the parties that the deed of trust theretofore given should remain in full force and effect to secure this last-described note. Said deed of trust covered the gin, plants located at Loving and Jean, including engines, boilers, gin stands, suctions, and ail machinery, tools, appurtenances, house, and all things of whatsoever hind connected with each and both of said gins, as well as the leases of Simmons Bros, on the lands described on which said things were located. The 'deed of trust dated December 16, 1910, was duly executed by both of the Simmons brothers, on December 16, 1910, and filed for record in Young county on January 30, 1911. The evidence further shows that appellant company had actual as well as constructive knowledge of the existence of this mortgage held by the Jacksboro Company at the time it sold the machinery to Simmons Bros., which was later installed in the gin plant at Loving, and that it knew that in order to install the new machinery sold by it to Simmons Bros, the old machinery on which plaintiff held the mortgage would have to be removed, and that it was taken, out and stored in an outhouse; that the Jacksboro Company did not know of the proposed removal of the machinery on which it held a mortgage until after it had been removed and the machinery purchased from appellant had been installed. The evidence further shows that the removal of the old machinery depreciated its value as a protection to the Jacksboro Company for its debt to the extent of some 75 per cent, of its value while in use in the gin plant; that there were eight gin stands, two boilers, two engines, etc., used in the gin at Loving prior to the installation of the new machinery ; that in order to install the machinery purchased from appellant it was necessary to make some changes in the building, to cut through the west end, etc., and that the new gin stands were fastened by means of bolts to the floor or sills; that all gin stands are fastened in this way: The stands are put in first, then the feeders; the distributors resting on top of the feeders. The feeders are bolted, in order to steady them, and the distributors are fastened with little straps of iron, to the feeders, holding them together; but the distributors are connected with a timber running across the building, making the machinery all fastened together and fastened to the building. The engines rest on concrete bases and the boilers “are swung on timbers.” Simmons testified:

“All this machinery is connected up with the building, shafting, etc., the whole thing, while it is in operation. When we placed these six gin stands (bought from appellant) in there and installed them there, I intended them as a permanent part of our gin plant. I would not have put them in there with any other intention, only to make it a permanent part of the plant. To remove these gin stands, compressors, condensers, etc., from this plant, would render the plant practically worthless as a gin. It could not he operated as a gin without this machinery, or some other in the place of it.”

The evidence further shows that the mortgage to the appellant company was given some days after the machinery reached Loving, and while it was still on the car; that the three notes for $426 each, given by Simmons Bros, to appellant, were dated July 2, 1913; that the other two notes heretofore mentioned were dated August 5, 1913. There were two chattel mortgages given, one dated July 12, 1913, and executed July 5, 1913, and recorded July 12th, thereafter. This first mortgage covered all the property upon which a lien was claimed, except six 70-saw Murray steel ratchet feeders complete, which was covered by the second mortgage, dated August 5, 1913, and acknowledged by Simmons Bros. August 21st, and filed for record in Young county August 27,. 1913. At the time of the execution of the deed of trust to the Jacksboro Company in 1910, Simmons Bros, did not have a deed to the land on which the gin was located, but they had an understanding or agreement with certain parties at Loving that a deed was to be given, which was later executed and delivened. Said deed provides: “That whenever said tract of land or any part thereof- shall cease to be used as and for the actual operation as a gin plant, the title therein and thereof claimed and vested in the vendee shall revert to the vendor.”

Without attempting to take up and discuss each of appellant’s 17 assignments separately, we will consider and discuss the different questions thereby raised. The contention of appellant is that by reason of the stipulation contained in the chattel mortgages given by the Simmons Bros, to appellant, to the effect that the machinery covered thereby should remain and retain its character as personalty, no matter how or where used, said machinery, though subsequently affixed to the building and gin plant, so that in the absence of the stipulation it would have become a fixture, yet because of the stipulation it did not lose its character as personalty; that therefore such machinery did not become subject to the deed of trust lien held by the Jacksboro Company. As said by this court in Phillips v. Newsome, 179 S. W. 1123:

“While as between the parties to the mortgage it is undoubtedly, true that the character of the property may he fixed by a contract, that is, the purchaser may estop himself from claiming the property as a part of the realty by reason of a subsequent attachment thereof to the soil, yet' appellee was not a party to the mortgage contract under consideration. He was not affected by the provision that the engine should not become a part of the realty, and was without knowledge of it.”

In the cited case the controversy was between one who had sold certain gin machinery to a gin company and had retained a lien thereon under a chattel mortgage containing a stipulation in verbiage and effect similar to the one in the instant case, and had said mortgage seasonably and duly recorded in the chattel mortgage records of the county where the gin was located, and a subsequent purchaser of the realty and gin property, who paid a valuable consideration therefor and received a warranty deed, and who at the time of the purchase was without any actual notice of the claim of the holder of the chattel mortgage. In this case we held that the purchaser under the deed received a title to the property, including the machinery upon which a chattel mortgage lien had been retained, not affected by such lien. This holding was based upon the conclusion reached that the purchaser of realty is hound only to take notice of the record title of the realty, and is not bound to examine the records for chattel mortgages, for he is not affected by the record of 'the chattel mortgages upon fixtures on such realty. Ice, Light & Water Co. v. Lone Star, etc., Works, 15 Tex. Civ. App. 694, 41 S. W. 835. We are of the opinion that the evidence fully sustains the conclusion that so far as, purchasers for value and other parties not to be affected by the terms of ihe chattel mortgage given by Simmons Bros, are concerned the machinery purchased from appellant upon installation in the gin plant become fixtures, a part of the realty. Brown v. Roland, 92 Tex. 54, 45 S. W. 795, reversing the holding of the Court of Civil Appeals in 83 S. W. 273; Jones v. Bull, 85 Tex. 136, 19 S. W. 1031. We think such evidence sustains the conclusion that the appellant not only had both actual and constructive notice of the existence of the deed of trust liem held by the Jacksboro Company, but also knew that it would be necessary to remove a part of the machinery covered by the lien under said deed of trust in order to install the machinery purchased from it, and that such removal would greatly depreciate the Jacks-boro Company’s security. The question then is, Would the Jacksboro Compand be affected by the stipulation in the chattel mortgage contained to the effect that the Murray Company machinery should retain its character as personalty, and would such stipulation, so far as the Jacksboro Company is concerned, determine the character of such machinery which had become annexed to the realty? We think not. Sinker et al. v. Comparet et al., 62 Tex. 470-476; State Bank v. Martin (Mo. App.) 182 S. W. 1022. In Jones on Chattel Mortgages (5th Ed.) § 129:

. “It is not competent for an owner of real estate to bind existing mortgagee by any arrangement to treat as personalty annexations to the freehold. The legal character of such annexations is determined by the law to the real estate, and mortgagees, as well as other parties in interest, are entitled to the benefit of this rule of law, which can be taken from them only when waived.”

See Burnside v. Twitchell, 43 N. H. 390; Smith v. Waggoner, 50 Wis. 155, 6 N. W. 568; Voorhees v. McGinnis, 48 N. Y. 278; Hunt v. Bay State Ins. Co., 97 Mass. 279, as supporting the text.

In the Massachusetts case of Richardson v. Copeland, 6 Gray (Mass.) 536, 66 Am. Dec. 424, it is held that fixtures in a manufacturing establishment become part of the realty, and the title to which passes to a subsequent purchaser even with notice of a stipulation in the chattel mortgage providing that the machinery, which because of their use has become fixtures, should retain its character as personalty. But we do not think this holding is in harmony with the Texas decisions or in line with the trend of authority. In the Colorado case of Fisk v. People’s Nat. Bank, 14 Colo. App. 21, 59 Pac. 63, the holder of a trust deed lien was held to be entitled to maintain an action against the holder of a chattel mortgage lien covering machinery subsequently affixed to the soil for removing said machinery thereby and impairing the security under the trust deed. If no waiver on the part of the holder of the trust deed lien be shown, we are prepared to concur in this holding. In Tibbetts v. Horne, 65 N. H. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am. St. Rep. 31, it is held that one who takes a chattel mortgage lien on machinery which, with his consent, is affixed to and made a part of the realty, but takes no mortgage on the realty, cannot enforce his lien against even a subsequent mortgagee of the realty without notice. In Campbell v. Hoddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 889, in a case where a mortgage on the realty had been given and subsequently the mortgagor had purchased machinery upon which he gave a chattel mortgage and affixed it to the realty, it was held that the equitable way of dealing with the property was to protect the prior mortgage to the extent of his security prior to the installation of the machinery. In other words, that the enforcement of the chattel mortgage lien should not be permitted to the extent of impairing the realty mortgagee’s security, as it would have been had the premises been permitted to remain as they were and had the machinery not been installed. In construing this statute, our own Supreme Court held in Bowen v. Wagon Works, 91 Tex. 385, 43 S. W. 872, that the word “purchasers” therein used embraced all holders of claims secured by trust deed or mortgage. It has also been repeatedly held that an extension of time on an existing debt, in consideration of the giving by the debtor of a mortgage, constitutes the creditor a mortgagee in good faith. Barnes v. Gray & Co., 14 Tex. Civ. App. 439, 37 S. W. 162.

We conclude from a rather exhaustive examination of the authorities, both in this and other jurisdictions, that the Jacksboro Oil & Milling Company showed its right to have the appellant’s chattel mortgage lien postponed and made subject to the satisfaction of the former’s lien. The evidence fails to show that the value of the former’s lien was enhanced by the removal of the old machinery and the installation of the new, or, if so, to what extent, and even if we should be inclined to follow the rule laid down in the New Jersey case of Campbell v. Roddy, supra, the appellant has not affirmatively shown itself entitled to relief, or the nature and extent of any relief to which it may be entitled. The evidence does show that the removal of the old machinery greatly impaired the appellee’s security, and that such removal and the subsequent installation of the machinery bought from appellant was made without notice to or the knowledge of the Jacksboro Company. While appellee makes some point of the fact that some ten days elapsed between the execution of the first chattel mortgage and the recording thereof and four days elapsed in the case of the second mortgage, and that hence appellant did not file its mortgages for record “forthwith,” as required by the statute, we do not rest our conclusions as to the superiority of plaintiff’s lien upon this contention, but upon the fact that appellee was entitled to the full protection of its security under the deed of trust, unimpaired by the changes made in the machinery in the gin, the essential character of which change was known to appellant pri- or to and at the time it took its chattel mortgages. Hence we overrule appellant’s assignments 1 to 9 inclusive.

Another group of assignments attack the judgment on the ground that the plaintiff’s petition did not sufficiently describe the machinery upon which plaintiff sought a foreclosure. It described the property as follows:

“Situated in Young county, Tex., and being gin plants owned by the said W. H. Simmons and C. A. Simmons, located at Loving and Jean, and including engines, boilers, gin stands, suctions, and all machinery, tools, appurtenances, houses, and all other "things of whatsoever nature or charaoter connected with each and both of said gins,” etc.

It further referred to the deeds of trust by their dates, volumes, and pages of trust deed records, etc. We overrule these assignments, and also those assignments which question the sufficiency of the evidence as to the property upon which a foreclosure was sought. We think both allegations and evidence are ample to sustain the judgment.

All assignments are overruled, and the judgment will be affirmed as to appellant, and left undisturbed as to the judgment against W. IT. and O. A. Simmons, who have not appealed.

Judgment affirmed in part, and undisturbed in part.
      (StsoFor other cases see same topic and KEY-NUMBER in all-Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    PANTAZE et al. v. FARMER.
    (No. 8862.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 11, 1918.
    Rehearing Denied June 8, 1918.)
    1. Judgment <&wkey;256(2) — Verdict.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1990, judgment must follow verdict of jury on special issues, unless same is set aside and new trial granted, even though verdict be so erroneous as to require granting of new trial after judgment is rendered.
    2. Landlord and Tenant >&wkey;231(2) — Rent —Action—Evidence—Materiality.
    In landlord’s action for rents and foreclosure of lien, defendants claiming damages under allegations landlord’s agent in suing out distress warrant was moved by malice, testimony of agent that up to time he sued out warrant he knew defendant tenant owed good many creditors, and that several were pressing him, was admissible as material.
    8. Evidence i&wkey;423(8) — Parol Evidence Affecting Writing — 'Lease.
    In landlord’s action for rent and to foreclose lien, testimony of tenant that when he signed lease with another defendant he and landlord’s agent agreed in parol that he should not be liable as principal, but only as guarantor or surety, was inadmissible as varying a writing.
    4. Landlord and 'Tenant <&wkey;231(2) — Rent —Action—Evidence—Materiality.
    In landlord’s action for rent and to foreclose lien, tenant claiming he was merely surety or guarantor, and not principal to lease, also that he had sold business, proof that during year in question place was listed in telephone directory in his name, as it had been, was admissible.
    5. Appeal and Error <&wkey;1050(l) — Harmless Error — Evidence.
    Appellants cannot complain of the admission of testimony, where substantially the same testimony was brought out by themselves on direct examination of the witnesses.
    6. Evidence <&wkey;318(7) — Hearsay—Ex Parte Affidavit.
    In landlord’s action for rent and to foreclose lien, ex parte affidavit of tenant that he bought furniture and fixtures, and took possession, and operated rented restaurant until certain date on his own account, was inadmissible as hearsay.
    7. Appeal and Error i&wkey;218 — Reservation of Grounds of Review — Exception to Refusal of Issue.
    Where appellants took no bill of exception and made no objection of any character in trial court to refusal to submit issue, they waived right to complain, in Court of Appeals, of refusal of their request for submission.
    S. Trial <&wkey;350(4) — Special Issue — Materiality.
    In landlord’s action for rent and to foreclose lien, defendants bringing cross-actions for damages, alleging a sale of the business, etc., the special issue whether the bill of sale made by a tenant to another was in good faith was material.
    9. Landlord and Tenant Assignment — Acceptance of New Tenant.
    Where landlord’s agent, after tenant’s sale of his restaurant business and personalty in the premises, received rent payments from the buyer and called on him for further payment, the landlord did not thereby necessarily accept the buyer as a tenant.

      10. Appeal and Error <&wkey;750(4) — Assignment of Error — Sufficiency to Raise Question.
    Question whether or not evidence was sufficient to support jury’s verdict requiring decree of foreclosure of landlord’s lien cannot he raised by assignment of error in rendition of judgment foreclosing landlord’s lien.
    11. Appeal and Error <&wkey;742(l) — Assignment of Error — Proposition Not Germane.
    Proposition that in no event could foreclosure of landlord’s lien be decreed for amount in excess of particular amount is not germane to assignment that no foreclosure at all should have been decreed.
    12. Landlord and Tenant <&wkey;274(2) — Malicious Distress — Tenant’s Right of Action.
    Where tenant of restaurant premises sold personalty and business colorably to another, business being of no value to him or his vendee, and personalty having no rental value, he and his vendee could not recover, in landlord’s action for rent and to foreclose lien, damages on their cross-actions on ground distress warrant had been maliciously sued out.
    13. Appeal and Error <&wkey;262(l) — Submission of Issues — Failure to Object — Waiver.
    In absence of exception to submission of any of the issues, appellants waived right thereafter to complain that evidence was insufficient to support findings not so objected to.
    14. Landlord and Tenant &wkey;>277(4) — Termination of Lease — Re-Entry.
    Where constable, in taking possession of leased building and ousting person in possession under tenant, was not acting under direction of landlord’s agent, act did not terminate lease, which provided it should terminate on reentry.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Suit by E. D. Farmer against J. D. Pan-taze and others. From judgment for plaintiff, the named defendant and another appeal.
    Affirmed.
    E. G. Senter, of Washington, D. C., and Bryan, Stone & Wade, of Ft. Worth, for appellants. McLean, Scott & McLean, Wm. L. Evans, and Leonard M. Levy, all of Ft. Worth, for appellee,
   DUNKLIN, J.

E. D. Farmer sued J. D. Pantaze and N. Yratis to recover rents alleged to be due on a storehouse in Ft. Worth and for a foreclosure of a landlord’s lien on the furniture, fixtures, and other personal effects situated in the building. Plaintiff’s claim for rents and landlord’s lien was predicated upon a certain written lease contract between him and the defendants, dated March 20, 1915, by the terms of which the premises were left to Pantaze Bros., a firm composed of J. D. Pan-taze and N. Yratis from March 1,1915, to July 31, 1916, for a consideration of $4,125, payable in equal monthly installments of $275. The lease was duly executed by plaintiff and defendants. ' Among others, the lease contained a stipulation to the effect that default in payment of rents for 5 days after the same became due or the subletting of the premises without the written consent of the landlord would give plaintiff the right, without notice or demand, “into said premises to re-enter, and the same to have again, repossess and enjoy as in Ms first and former estate; and thereupon this lease and everything therein contained on the said lessor’s behalf to be done and performed, shall cease, determine and be utterly void.” The lease also contained the following stipulation:

“That for the whole of said rents to be paid by said lessees as aforesaid, a lien is hereby reserved npon the premises hereby leased, the interest of said lessees in and to the same, and the property of the said lessees upon said premises, in favor of the said lessor or his assigns prior and preferable to any and all other liens thereupon whatsoever.”

In his answer to the petition defendant Pantaze denied that he was ever a partner with defendant Yratis in leasing the property, and alleged that the lease was in fact made to Vratis, and that he executed the lease contract under an agreement with plaintiff that he did so only as a surety or guarantor for Vratis; that Vratis rented the property for restaurant purposes, and was the sole proprietor of the business therein conducted, and owner of the personal property therein used from March 20, 1915, until December 6, 1915, on which latter date he turned back to Pantaze the fixtures, furniture, and appliances in consideration of the cancellation of notes Pantaze held against him for the purchase price of said property, which Pantaze had sold to Vratis prior to the execution of the lease, and thereupon Pantaze sold the business, furniture, and fixtures to A. A. C'ontos, who then under an agreement with plaintiff to look to as his tenant, took charge and control of the premises and 'business, and continued to operate same until January 20, 1916, on which date he was dispossessed of said premises and personal property by the constable acting under and by virtue of a distress warrant sued out by plaintiff.

Pantaze further alleged that at the time of the levy of the distress warrant he held the vendor’s lien notes of Oontos against the property levied on, which lien was impaired as a result of said levy, and that he will probably lose his debt as a consequence, and that the writ was sued out by plaintiff maliciously without probable cause. Based on those allegations Pantaze prayed for judgment against plaintiff for actual damages in the sum of $3,000 and for exemplary damages in the same amount. In the alternative he also prayed for judgment against Oontos for the agreed purchase price of the personal effects sold to him.

Plaintiff filed an amended petition, which was substantially to the same purport as his original petition, and in which he made Oon-tos a party defendant also, upon allegations that Contos was setting up some claim of interest in the property levied on, wMch plaintiff prayed be precluded by the foreclosure of the landlord’s lien asserted.

Contos also filed an answer, alleging the sale of the furniture and fixtures to him by Pantaze, the transfer of the lease to him by and with the consent of plaintiff, his occupancy of the premises as plaintiff’s tenant from December 6, 1915, to January 20, 1916, when he was dispossessed toy the officer levying the distress warrant. He further alleged that the distress warrant was sued out maliciously and because of his refusal to pay certain hack rents owing by Vratis, which were past due more than 30 days, and by reason of that fact and the fact that more than 30 days had elapsed since Vratis vacated the premises plaintiff had lost any lien on the furniture and fixtures he may have had theretofore, and that by reason of the wrongful levy of the writ and the wrongful ouster of him from the possession of said premises and furniture and fixtures he had sustained actual damages in the sum of $6,524.75, for which he sued plaintiff, and he also claimed exemplary damages in the sum of $6,000.

The distress warrant which was sued out January 20, 1916, was quashed by order of court on June 20, 1916, because of a defective bond given by plaintiff as a basis therefor. The record shows that when the warrant was levied the constable making the levy not only took possession of the furniture, fixtures, and other effects then on the premises, but also took possession of the storehouse which he locked up and held, to the exclusion of the defendants, and none of the defendants was ever thereafter restored to possession of either the place of business, or its contents levied on.

Plaintiff recovered judgment against Pan-taze for $2,350, which was the full amount of unpaid balance of the contract price of the lease for its entire term, and also for foreclosure of plaintiff’s landlord’s lien on the furniture, fixtures, and other effects situated in the building when the distress warrant was levied. Judgment was also rendered, denying to Pantaze and Contos any recovery against plaintiff, and further denying to Pan-taze any recovery against Contos on his plea over against the latter. From that judgment Pantaze and Contos hare prosecuted this appeal jointly upon a joint appeal bond and joint assignments of error.

Vratis was never served with process, and plaintiff’s suit as against him was dismissed. Pantaze and Contos also filed pleadings against the constable and George Beggs, plaintiff’s agent, who acted for him in suing out the distress warrant, asking for damages against them jointly with plaintiff for the wrongful levy of the writ and the ouster of Contos from possession of the building and furniture and fixtures, but neither of those persons was served with process, and accordingly such pleas over as to them was dismissed. Certain employes in the restaurant intervened, and judgment was rendered in their favor for claims for labor, of which no complaint is made on this appeal by any of "the parties.

Following are the special issues submitted to the jury and findings thereon, to wit:

“Question 1. Was the bill of sale to the property in controversy, made by J. D. Pantaze on December 6, 1915, to A. A. Contos, made in good faith? That is, did the said J. D. Pantaze actually intend thereby to convey to said A. A. Contos, and did the said A A. Contos in good faith accept and agree to pay therefor the said property in controversy? Answer: Ño.
“(b) Or was the said transaction a fraudulent and simulated one between the said J. D. Pan-taze and said A. A. Contos made for the purpose of hindering, delaying, or defrauding the creditors of said business? Answer: Ves.
“Question 2. Who was the actual owner of the property in controversy on 20th day of January, 1916? Answer: J. D. Pantaze.
“Question 3. Had J. D: Pantaze abandoned the premises in controversy on 20th day of January, 1916? Answer: Ves.
“Question 4. What, if anything, was the amount of the respective claims for labor performed of the following persons, to wit: George Vratis, Tom Mitchell, Tony Theos, and Emma Miskill? Answer: George Vratis $96.60; Tom Mitchell $2.50; Emma Miskill $5.16; Tony Theos $3.00.
“Question 5. Did Tol Johnson, the constable, act under the directions of George Beggs, the agent of the plaintiff, in making the levy in the manner in which it was made under the distress warrant? Answer: No.
“Question 6. What was the reasonable market value of the personal property levied upon by the constable at the time of the making of the levy? Answer: $2,500.00.
“Question 7. Did the business conducted upon the premises have any value apart from the personal property connected therewith at the time of the making of the levy; if so, what was its reasonable market value at the time? Answer : No.
“Question 8. What was the reasonable rental value per month of the personal property levied upon, at the time of the levy, if same had been removed from the premises where it was levied on? Answer: It had no rental value.
“Question 9. Whs the levy of the distress warrant maliciously made at the instance of the agent of the plaintiff, with the intent to injure, harass, and annoy the defendants Pan-taze and Contos, or either of them ? And if yes, then state which one, or, if both, so state. Answer: No.
“Question 10. If you answer the preceding question in the affii’mative, you are instructed that it is your privilege to assess what is known as exemplary or punitive damages herein, and, if you so find, you will, in reply to this question state what amount you so assess. Answer:
“Question 11. What was the reasonable value of the merchandise levied upon by the constable? Answer: $50.00.”
“Question 13. Did George Beggs at any time, either by his words or actions, agree that A. A. Contos, as the owner of said business, should occupy the premises in controversy or accept the said A. A. Contos as his tenant? Answer: No.”

The first assignment of error, which is the one principally stressed by appellants in their briefs, is addressed to the action of the trial court in refusing their motion for judgment to be entered in their favor upon all the controverted issues between them and plaintiff mentioned above; the motion being filed after the verdict of the jury had been returned, and before judgment was rendered. The motion was predicated upon the claim therein made, in effect, that the uncontradicted proof was conclusive in appellants’ favor on all the disputed issues presented by the pleadings of the parties. In other words, the motion was for a judgment in appellants’ favor notwithstanding the verdict. This assignment is overruled because it is well settled that the judgment must follow the verdict of the jury on special issues, unless the same is set aside and a new trial granted, even though the verdict be so erroneous) as to require the granting of new trial after judgment is rendered. Vernon’s Sayles’ Tex. Civ. Stats, art. 1990; Scott v. Farmers’ & Merchants’ Bank, 66 S. W. 485.

The testimony of George Beggs, plaintiff’s agent who instituted the distress proceedings, to the effect that prior to «December 15, 1915, and up to the time he sued out the distress warrant, he knew Pantaze owed a good many creditors, and that several of them were pressing him for payment, was objected to on the ground that it was immaterial and irrelevant to any issue in the case. That objection was untenable, since the evidence was material upon the claim of both defendants for exemplary damages predicated upon allegations that in suing out the writ, Beggs was moved by malice and a desire to injure them. Furthermore, other testimony of Beggs to the same effect was introduced by plaintiff without objection thereto from defendants, and testimony of like character was. brought out by defendants themselves upon cross-examination of Beggs as a witness.

There was no error in excluding the proffered testimony of Pantaze to the effect that when he signed the lease contract upon which the suit was predicated he and Beggs, who was then acting for plaintiff in the transaction, agreed in parol that Pantaze should not be liable as principal on said written lease, but should be bound only as a guarantor or surety for Vratis. The admission of such testimony clearly would have been a violation of the rule that contemporaneous parol agreements at variance with the written instrument cannot be proven, and that rule was invoked by plaintiff in his objection to the testimony. There was no error in admitting proof that during the entire year of 1915 the place was listed in the city telephone directory in the name of Pantaze Bros; Café, just as it had been previously listed. In view of testimony introduced tending to show that Pantaze knew of such listing and made no objection thereto, such evidence was a circumstance tending to refute the claim of Pantaze that he was not a party in interest with Vratis while the latter was in charge of the business, and that he made a bona fide sale of it to Gontos on December 15, 1916.

Oomplaint is made of admission in evidence over appellant’s objection of the testimony of the constable, Tol Johnson, who levied the distress, warrant, to the effect that while the witness had charge of the building under the levy made, plaintiff’s agent Beggs told him that, if he (Beggs) had an opportunity to rent the building to some one else, the constable would have to vacate the same. Appellants are in no position to complain of the admission of that testimony, since substantially the same testimony was brought out by appellants themselves upon direct examination of the witnesses.

The ex parte affidavit of Vratis, to the effect that in 1914 he bought the furniture and fixtures in question and took possession of the same on January 1,1915, and operated the restaurant until December 6, 1915, on his own account, was clearly inadmissible, in view of the objection urged at the time by the plaintiff that it was hearsay.

Oomplaint is made of the court’s refusal of appellant’s request for the submission of a special instruction, to the effect that it is not necessary to fix a landlord’s lien that a distress warrant be issued and levied, but that the filing of the suit to foreclose the lien is sufficient to preserve the lien. Appellants have pointed out no bill of exception taken or objection of any character made in the trial court to the refusal by that court to submit that issue, and we have found none in the record. Under such circumstances they must be held to have waived the right to complain in this court of such ruling. G., T. & W. Ry. v. Dickey, 108 Tex. 126, 187 S. W. 184.

Appellants complain of the submission of issue No. 1 to the jury shown above for three reasons: (1) That the. issue so submitted was not presented by the pleadings; (2) that-it was immaterial and irrelevant to any real issue in the case; (3) because there was no evidence tending to show that the alleged sale of the restaurant and its contents by Pantaze to Contos was a simulated transaction. Clearly, the issue was material in view of the cross-actions for damages against plaintiff by both Pantaze and Contos, predicated upon allegations of such transaction between' Pantaze and Contos; and, without attempting to set out the evidence at length, we think it sufficient to say that it reasonably tended to support the finding of the jury upon that issue.

We are of the opinion, further, that the evidence was also sufficient to support the jury’s finding in answer to issue No. 13, submitted by the court, that George Beggs, representing plaintiff, did not agree to accept Contos as tenant of the premises. Furthermore, the only objection made during the trial tp the submission of that issue was as follows:

“The undisputed testimony shows that George Beggs, acting as agent for the plaintiff, received rent payments from defendant Contos, and called upon him for further payment.”

Even if that statement be true, it would j not necessarily have the effect of binding the plaintiff to the proposition that he had accepted Oontos as his tenant, and therefore the objection so urged did not present the specific question contained in the assignment now under discussion.

By another assignment complaint is made of error in the rendition of a judgment for eel rung plaintiff’s landlord’s lien upon the property in controversy. By one proposition submitted under thisi assignment appellants insist, as a basis for the contention asserted in the assignment, that the undisputed testimony showed that plaintiff had lost his lien at the time of the levy of the distress warrant, but just how it was lost appellants do not point out. By another proposition the contention is made that the evidence shows without controversy that on January 20, 1016, there was due only the sum of $608.33, which was the extent for. which a foreclosure could be awarded in any event; and the third proposition is that the undisputed testimony showed an unlawful conversion of the property by the plaintiff by reason of the fact that plaintiff took possession of it under the distress warrant which was afterwards quashed.

In the first place, the decree of foreclosure of the landlord’s lien was required by the verdict of the jury, and the question whether or not the evidence was sufficient to support the verdict cannot be raised by an assignment of this character. In the second place, the proposition that in no event could a foreclosure be decreed for an amount in excess of $608.33. is not germane to the assignment, in that the assignment is to the effect that no foreclosure at all should have been decreed. For these reasons the assignment is overruled.

We are also of the opinion that there is no merit in other assignments presenting the contention that the undisputed evidence shows that Pantaze and Contos, were each entitled to a judgment against plaintiff on their cross-actions, in view of the fact, as stated already, that the evidence was sufficient to support the jury’s finding on the first and second issues that the alleged sale of the business and furniture and fixtures by Pantaze to Contos was fictitious, and that Pantaze owned the personal property levied on at the time of the levy, and in view of the further fact that, according to the findings of the jury, which are unassailed by appellants, the business conducted upon the premises at the time of the levy of the writ was of no value to the defendants, and that the personal property levied on had no rental value, and the further fact that, independent of the levy, plaintiff was "milled to- a landlord’s lien upon the personal property and to a foreclosure thereof.

By another assignment it is insisted that the court erred in denying to Pantaze a recovery against Contosi on the cross-action of the former against the latter. This assignment is contained in the brief signed by counsel for both Pantaze and Contos, thus indicating that it is the desire of both that such a judgment should be rendered. To have rendered such a judgment would have been inconsistent with the judgment holding in effect that the alleged sale to Contos was simulated. Besides, courts are organized for the purpose only of determining controversies between parties. If there is no controversy between Pantaze and Contos with the respect to the alleged sale and the amount due thereon, no reason is perceived why they cannot adjust the matter satisfactorily out of court without the aid of a judgment.

By other assignments of error complaint is made of the refusal of appellant’s motion for a new trial; (1) Because the property was seized by an invalid distress warrant; (2) because the undisputed evidence shows that on January 1, 1915, Pantaze sold his interest in the property to Yratis, who held the same until the 6th of Decembev, 1915, when he reconveyed it to Pantaze, who then immediately sold the same to Centos; that thereafter Contos was accepted as plaintiff’s tenant; that at the time of the levy of the distress warrant plaintiff had lost his landlord’s lien; that plaintiff caused the officer levying the writ to eject the defendants from the building, and thereby terminated the lease according to its terms. As noted already the evidence was sufficient to support the findings of the jury on issues Nos. 1 and 2 copied above. In the second place, no exception was reserved by appellants to the submission of any of the issues save and except issuesi Nos. 1 and 13. In the absence of such objection appellants waived the right to thereafter complain that the evidence was insufficient to support the findings that were not so objected to. For these reasons those assignments are overruled. G. T. & W. Ry. v. Dickey, 108 Tex. 126, 187 S. W. 184; Cleburne St. Ry. v. Barnes, 168 S. W. 991.

By another assignment, it is insisted that the judgment for the sum of $2,350 was excessive; the contention being that only $608.33 could rightfully be recovered by the plaintiff in any event. This assignment is predicated upon the theory that the lease was terminated by the plaintiff on January 20, 1916, when the distress warrant was levied and the possession of the premises was taken over by the constable. As the jury found that the constable in taking possession of the building and ousting Contos therefrom was, not under the direction of plaintiff’s agent, and as that finding of the jury has not been attacked in any proper manner, it cannot be said that such action on the part of the constable had the effect to terminate the lease, and no contention is made that the amount for which the judgment was rendered was not the correct amount due by Pantaze for the unexpired term according to his expressed agreement contained in the lease. Accordingly this assignment is overruled.

For the reasons stated the judgment is affirmed.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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author: BO-TCE, J.

text:
    LOCKETT et al. v. FARMERS’ STATE BANK OF VERNON et al.
    (No. 1372.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1918.)
    1. Trial <®=>352(4) —■ Issues — Conformity with Pleadings.
    Where the bill alleged that two defendants on reorganization of a corporation agreed through a specific agent to pay the pre-existing debts of the corporation, submission of issues whether they or- any one authorized to speak for them agreed to pay such indebtedness was erroneous.
    2. Contribution <§^>9(G) — Joint Notes — Liability —■ Presumptions and Burden of Proof.
    Since it will be presumed that all the makers of a joint and several note were equally liable with each, other, the burden of showing the contrary rests upon .such of the makers as allege that their liability is limited and different from that of the other makers.
    3. Payment @=>41(2) — Application.
    If no application of a payment is made by debtor or creditor, the law will apply it as the justice of the case demands.
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action on a note by the Farmers’ State Bank of Vernon against the Farmers’ Union Clearing House Company, T. J. Lockett, O. L. Sharp, Carl Dreishner, J. C. McGill, J. S. Rutledge, Joseph Schmidt, J. S. I-Taynes, W. A. Walker, and M. L. Childress, in which Sharp, McGill, Walker, Haynes, and Childress filed cross-action against Lockett and Rutledge. Judgment was rendered dismissing Schmidt from the case and against remaining defendants in favor of plaintiff and rights were adjusted between the codefendants. Lockett, Rutledge, and Dreishner appeal.
    Affirmed in part, and in part reversed and remanded.
    Cook & Cook, of Vernon; and Slay, Simon & Smith, of Ft. Worth, for appellants. Bonner & Storey and Berry, Stokes & Morgan, all of Vernon, for appellees.
   BO-TCE, J.

The Farmers’ State Bank of Vernon brought this suit against the Farmers’ Union Clearing House Company, T. J. Lock-ett, O. L. Sharp, Carl Dreishner, J. C. McGill, J. S. Rutledge, Joseph Schmidt, J. S. Haynes, W. A. Walker, and M. L. Childress on a note executed by said parties, on which 'there was due at the time of the judgment the sum of $4,703.49, for which amount judgment was rendered in favor of the bank against all the defendants, except Joseph Schmidt, who was dismissed. The right of the bank to recover is unquestioned; all of the individual defendants were sureties for the Farmers’ Union Clearing House Company, a corporation. The issues in the case arose over the adjustment of the liability of the individual defendants among themselves. The judgment in effect provided that as to the sum of $3,439.19 the liability of the defendants, O. L. Sharp, J. C. McGill, W. A. Walker, J. S. Haynes, and M. L. Childress was secondary to that of the defendants T. J. Lockett and J. S. Rutledge, and all of the assignments except the one urged by the appellant Carl Dreishner, as hereinafter mentioned, concern the various actions of the court in the trial and determination of this issue between these two sets of individual defendants.

The controversy between the parties grows out of the reorganization of the defendant corporation, the Farmers’ Union Clearing House Company. All the individual defendants were directors of the corporation after its reorganization, and signed the note of the corporation to the bank as sureties. This note was, to the extent of the said sum of $3,439.19, a renewal of an indebtedness due the bank by the corporation before its reorganization. The defendants Lockett and Rutledge were directors of the corporation prior to its reorganization, and had been sureties on the said prior indebtedness. The Farmers’ Union Clearing House Company was in financial distress, and the stockholders, including the defendants Lockett and Rutledge, formed and executed a plan of reorganization for the purpose of relieving this situation. Under this plan the said stockholders were to surrender to the corporation all stock therein. $6,000 worth of stock was then to be resold in shares of $75 each, and the proceeds of the sale of such stock applied in payment of the existing indebtedness of the corporation. It seems to have been contemplated that most of the subscribers to this stock were to execute notes for the amount of stock -which they agreed to purchase. The principal difference between the parties as to how this matter was to be handled is that defendants Lockett and Rutledge claim that it was contemplated that the corporation itself as reorganized was to handle the stock notes and other proceeds of the sale of the stock, and thus meet the existing indebtedness, while the other defendants claim that the directors of the corporation, prior to its reorganization, agreed and bound themselves personally to take the stock notes and proceeds of the sale of the stock and discharge the existing indebtedness and start the business with a clean slate. The jury found that the defendants Lockett and Rutledge agreed “that they would pay all the old indebtedness of the Farmers’ Union Clearing House Company that existed at the time of its reorganization,” and this finding was the basis of the judgment of the court below.

The appellants Lockett and Rutledge, upon call of the case for trial, moved for a continuance to secure the testimony of F. V. Evans, and assign error upon the action of the court in overruling this motion. The appellees, Sharp, McGill, Walker, Haynes, and Chil-dress, hereinafter referred to as cross-petitioners, upon being sued, promptly filed a cross-action against their codefendants, Lockett and Rutledge, this cross-petition being filed on August 21, 1917. In the original cross-petition it was alleged that the defendants Lockett and Rutledge, being familiar with the financial condition of the Farmers’ Union Clearing House Company, of which the cross-petitioners were entirely ignorant, for the purpose of inducing the cross-petitioners to sign said notes and thus become jointly liable with the said cross-petitioners thereon, falsely represented to the said cross-petitioners the financial condition of the said corporation, assuring the said cross-petitioners that said corporation was solvent and in good financial condition, so that the cross-petitioners would never be called upon to pay any amount of said indebtedness; that the cross-petitioners were induced to sign said note by such false and fraudulent representations, upon which they relied. Wherefore they prayed for judgment over against the said Lockett and Rutledge for whatever amount they might be compelled to pay by reason of the execution of said note. On September 17,1917, this cross-petition was amended, and in the amendments it was alleged, in addition to the allegations of false representations as contained in the original cross-petition, that the defendants Lockett and Rutledge, and their agent and representative, D. D. McOrosky, in carrying out the reorganization of said corporation, solicited the cross-petitioners and others to subscribe for and purchase stock in said corporation, and to induce such purchase agreed that they “would take the money or notes realized from the sale of said capital stock, in consideration for which they would pay all the remaining indebtedness of defendant company, and place said company on a cash basis.” It appears from the motion for continuance, and was also developed upon the trial, that the said F. Y. EVans had been employed to effect said reorganization and he and the said D. U. Mc-Grosky did the active work thereof. The cross-petitioners offered evidence to the effect that, at several public meetings held for the purpose of effecting the reorganization of said corporation, it was stated that the old directors would take the proceeds of the sale of the capital stock offered and pay the existing indebtedness of the corporation. The cross-examination of a number of these witnesses develops that Evans was the principal speaker in these meetings, and the liability of the defendants on the agreement which is the basis of the judgment is dependent largely on the representations made by those speaking at these meetings. The entire record shows that Evans was very active in these reorganization proceedings, and that his testimony would be material as to the representations and agreements made to and with those who were being solicited to subscribe for stock. The allegations of the original cross-petition do not suggest that the testimony of Evans would be particularly material to the defendants Lockett and Rutledge, but the amendment set up a new cause of action, in so far as it alleged the agreement on the part of Lockett and Rutledge to discharge the existing indebtedness of the company. The motion for ■ continuance was overruled on September 25,1917. The motion for continuance shows, we think, reasonable diligence on the part of Lockett and Rutledge to locate the witness Evans and secure his testimony and we think the motion for continuance should have been granted.

The court required the jury to find whether the defendant^ “T. J. Lockett and J. S. Rutledge, or any one authorized to speak for them,” agreed to pay the old indebtedness of the Farmers’ Union Clearing House Company. We sustain the fifth assignment to the submission of this issue in this form. McOrosky alone was charged by the pleading of the cross-petitioners with being appellant’s agent in the making of such agreement, and the issue should have been confined to the allegations of the pleading. The submission of the issue in this form may not have been harmless, as there was considerable evidence as to representations, etc., made by Evans.

The court submitted the following issue:

“Did the defendants Sharp, McGill, Walker, Haynes, and Childress, or either of them, agree at the time they signed the notes representing the old indebtedness that they or any of them would get behind said indebtedness on an equal basis as the old sureties? If so, which of them agreed?”

■ The jury in this connection were charged that the burden of proof was on the defendants Lockett and Rutledge to establish the affirmative of this issue,' and appellants complain of this charge on the burden of proof. The note sued on appeared on its face to be the joint and several obligation of all the parties. The liability of the parties, in the absence of proof to the contrary, would be presumed to be as it appeared from the face of the note, and no express agreement on the part of any of the parties, as to equal liability with the others,* was necessary in order for such to be the legal relation of the signers, one to the other. The very form of the submission of the issue was therefore liable to be misleading and confusing, and would be apt to be prejudicial to appellants. The cross-petitioners had the right to have the question of suretyship adjudicated in this case, but as to the allegations of their cross-petition they assumed the attitude of plaintiff and their codefendants would be, as to such issues, defendants — the burden of proof would be on the cross-petitioners. Article 6331, R. S.; McNeese v. First National Bank of Waco, 183 S. W. 1184. The charge on the burden of proof accentuated the error already committed against the appellants in the form of the submission of this issue. Appellees rely on the case of Dullnig v. Weekes, 40 S. W. 181, as supporting this charge of the court. That case merely held that sureties might as between themselves, stand in the relation of the principal and surety, and the following was quoted as the correct rule in such cases:

“The principle on which one surety is regarded as liable as a pi-ineipal to another surety is that a state of facts is shown to the court from which it appears positively or by fair and reasonable inference that such surety intended to stand in the character of principal as to subsequent signers.”

This certainly does not mean that one apparently occupying a position of a cosurety on a note and seeking to have judgment over against another cosurety, on the ground that the one was really the principal and the other his surety, would not have the burden of showing such facts and circumstances as would show that such was the real relation of the parties. The court, at appellees’ re-request, submitted the other issue as to whether Lockett and Rutledge agreed that they would pay all of the old indebtedness of the Farmers’ Union Clearing House Company that existed at the time of its reorganization, to which, as we have already stated, the jury replied in the affirmative, and in the general charge the court informed the jury that the burden of proof was on the defendants, Sharp et al., to establish “their contention by a preponderance of the evidence.” It is urged by the appellees that the answer to this issue is sufficient to support the judgment, and that any error in the submission of the other issue becomes immaterial. Under those circumstances we are in some doubt as to whether the case ought to be reversed on this assignment alone; and, since the question is not likely to arise upon another trial do not express a conclusion thereon.

We doubt whether the pleading of the defendant Carl Dreishner was sufficient to require the judgment of the court to allow him contribution as between his cosureties to the extent of the payment made by him on the note. Bonner Oil Co. v. Gaines, 179 S. W. 687, § 6. If he occupies the same relation to the note as the other directors signing it after the reorganization, he would, under proper pleading, have been entitled to credit for the amount he has paid in discharge of said indebtedness. If no application of the payment was made by the debtor or creditor, the law would apply it “as the justice of the case demands.” Rogers-Wade Furniture Co. v. Wynn, 156 S. W. 343; Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 59. If the liability of Dreishner on the note proves to be the same as that of the cross-petitioners, it would seem equitable that in adjusting his rights the payments made by him should be so applied as to give him the right of contribution against those equally bound with him.

There are numerous other assignments which it is not necessary to mention particularly, and such assignments, except as they are otherwise disposed of by what we have said generally, are hereby overruled.

That part of the judgment which awards the Farmers’ State Bank of Yernon recovery against the defendants, Farmers’ Union Clearing House Company, a corporation, T. J. Lockett, J. S. Rutledge, Carl Dreishner, O. L. Sharp, J. O. McGill, W. A. Walker, J. S. Haynes, and W. L. Childress, jointly and severally for the sum of $4,703.49, with interest from date of said judgment at the rate of 10 per cent, per annum, is affirmed, hut that part of the judgment which adjusts the liability of the individual defendants among themselves and provides for the manner of the issuance of the execution is reversed, and the cause is remanded for a determination of the issues of suretyship between the individual defendants. The costs of appeal will be adjudged against the cross-petitioners, O'. L. Sharp and others.

Affirmed in part, and reversed and remanded in part.

HUFF, O. J., not sitting, being absent in Austin, serving on committee of judges,.
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author: KEY, C. J.

text:
    BARKER et al. v. WILSON, Co. Atty.
    (No. 5896.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 28, 1917.
    On Motion for Rehearing, June 25, 1918.)
    1. Appeal and Error <@=>719 (1) — Fundamental Error — Reversal.
    In an election contest, where court, by consent of both sides, heard law and evidence together, and entered judgment sustaining a general demurrer, there was not such fundamental error as required a reversal, where not complained of on appeal.
    2. Schools and School Districts <&wkey;97(4)— Issuance oe Bonds — Legal Voters.
    In order to vote at an election to determine whether bonds shall he issued to build a schoolhouse, one must reside in and own property in the school district.
    On Motion for Rehearing.
    8. Appeal and Error <S=662(4) — Statement oe Facts — Conclusiveness.
    The statement of facts, signed and certified to by the trial judge, imports absolute verity.
    4. Appeal and Error &wkey;842(2) — Finding oe Fact.
    In an election contest, a declaration m a judgment that parties referred to were qualified voters, except for certain reasons, would not constitute a finding of fact, but would be a conclusion of law; hence appellants would not be entitled to have it given controlling effect in disposing of the appeal.
    5. Elections <@=>295(1) — Contest oe Election-Setting Aside — Evidence.
    Result of an election should not be set aside until it is clearly made to appear that the election was not properly and fairly held.
    6. Schools and School Districts <&wkey;97(4)— Bond Elections — Setting Aside.
    In contest of a school election to determine whether bonds should be issued to build a schoolhouse, upon the ground that certain persons were unlawfully denied the right to vote, it devolved upon contestants to show, by clear and satisfactory testimony, that such persons possessed all the necessary qualifications of voters.
    7. Schools and School Districts <&wkey;97(4)— Contest oe Bond Election — Residence oe Voter.
    In contest of school election, evidence held insufficient to show that one denied right to vote resided within the school district.
    8. Constitutional Law <@=>29 — Schools and School Districts <&wkey;97(4) — Contest oe Election — Wotice op Contest.
    In a contest of a school election to determine whether bonds should be issued, it is essential, to give the district court jurisdiction, that the county attorney be served with a written notice of contest and statement of the grounds on which the contestant relies, and service of petition of contest upon such attorney, with verbal notice, was insufficient:
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    Contest of school election by L. W. Barker and others, in which A. B. Wilson, county attorney, was made eontestee. Judgment for contestee, and the contestants appeal.
    Affirmed.
    See, also, 189 S. W. 748.
    Walker &'Burleson, of San Saba, for appellants.
   KEY, C. J.

An election was held in school district No. 22 of San Saba county determine whether or not bonds should be issued in the sum of $10,006 for the purpose of building a schoolhouse. There were 102 votes cast, 52 in favor of, and 50 against, the issuance of the bonds; being a majority of 2 in favor of the proposition. Thereafter L. W. Barker, Hugh Barber, and J. H. Hamlin brought this action for the purpose of contesting the election, and, among other things, alleged that the officers who conducted the election refused to permit three qualified voters to vote in the election; that, if they had been permitted, they would have voted against the issuance of such bonds, which would have resulted in the defeat of the proposition voted upon. As authorized by statute, the county attorney was made the eontestee, and, among other pleas, he filed a general demurrer, a special exception, and a general denial.

At the trial, by consent it seems of both sides, the court pursued the unsatisfactory course of hearing the law and the evidence together, and then entered judgmefat sustaining the general demurrer and special exception to the contestants’ petition; and also holding that the facts failed to sustain certain material and necessary allegations; and therefore judgment on the merits was rendered in favor of the contestee and against the contestants upon the facts.

As stated before, that method of procedure seems to have been satisfactory to the re?-spective parties, and, however irregular it may have been, it is not complained of in this court, and does not constitute such fundamental error as requires a reversal.

The contestants have brought the case to this court, and seek to have it reversed, their contention being, first, that the trial court erred in sustaining the general demurrer and special exception to their petition; and, second, that error was committed in holding that the proof failed to show that two of the voters alleged in appellants’ petition to have been denied the right to vote were qualified voters. If either of these contentions be decided against appellants, the judgment must be affirmed. The demurrer and exception were sustained because the trial court held that the delivery of their original petition by appellants to the county attorney, and his reading the same before it was filed, did not constitute such service of written notice to the county attorney as is required by statute as a prerequisite to the commencement of an election contest; and whether or not that ruling was correct need not be decided by this court, because the other ground upon which the court based its judgment against appellants is sustained by the record.

According to the statement of facts it was not shown that either Olay Walker or Ray Walker, two of the persons alleged to have been unlawfully denied the right to vote, resided or owned property in school district No. 22 of San Saba county. Such proof was necessary to constitute them legal vot'ers, and that, proof not having been made, the proper judgment was rendered, and it is here and now affirmed.

Affirmed.

On motion for Rehearing.

This motion has been given careful consideration, with the result that we feel compelled to adhere to our former decision.

The motion asserts that this court erred in holding that the record did not show that Olay Walker and Ray Walker resided in, or owned property in, school district No. 22 of San Saba county. The motion concedes that the statement of facts does not show that any witness testified to that effect, but it is contended that the inference is absolutely conclusive that the two persons referred to lived at Cherokee, which was in district No. 22, at which place the election was held.

It is further stated in the motion that the statement of facts, which was not agreed to by the attorneys, but made by the trial judge over two months after the trial, “is very meager and incomplete.” But that statement, however true it may be in fact, cannot be considered by this court in disposing of the case. The statement of facts is signed and certified to by the trial judge, and therefore it imports absolute verity, and must be accepted by this court as such.

The motion also states, and makes a partial but incomplete quotation from the judgment to show, that the trial court held that W. S. Reeves and Olay Walker were qualified voters. The motion contains the further statement that the judgment finds that Ray Walker was entitled to vote.

The trial judge filed no findings of fact, and, to show that the above statements are not sustained by the record, we here copy that portion of the judgment which deals with the testimony:

“And the court is of the further opinion, after hearing the evidence submitted, that the two parties alleged by contestants, viz. W. S. Reeves and Clay Walker, as being qualified voters, were not entitled to vote at the election sought to be contested herein, because they failed to comply with the law; the said Reeves failing and refusing to make the affidavit required by the election judges, and the said Walker failing to properly present himself at the polling place and demanding the right to vote. It is therefore ordered by the court that the contestors take nothing by this suit, that same be dismissed, and that the injunction heretofore issued and served in this cause be in all things dissolved, and that the contestants pay all costs in this behalf expended.”

That portion of the judgment which precedes that quoted sustains the contestee’s exceptions to the contestants’ petition, and holds that the court had no jurisdiction, because of the fact that the contestants had failed to properly and legally serve the con-testee with notice of intention to contest the election; and then the judgment proceeds as quoted above. It will be noted that it does not hold that W. £?. Reeves and Olay Walker were qualified voters, but states that they were ,so alleged to be by contestants. The judgment then proceeds to give the trial judge’s reason why the two persons referred to were not entitled to vote, even if they were otherwise qualified; but it does not hold that they were so qualified. Ray Walker, the other person who was not permitted to vote, is not mentioned in the judgment, and we cannot agree with counsel for appellants that it “is virtually a judgment that Ray Walker should have been allowed to vote.” But, even if the court had declared in the judgment that the three parties referred to were qualified voters and entitled to vote, except for the reasons stated in the judgment, such declaration would not have constituted a finding of the facts necessary to show that they were qualified voters. Such a declaration would be more a conclusion of law than a finding of fact, and therefore appellants would not be entitled to have it given controlling effect in disposing of the appeal. In a democratic government, wherever the people are authorized to determine for themselves, by a majority or other character of vote, any matter pertaining to the public interest, the result of such election should not be set aside by the courts, until it is clearly made to appear that the election was not properly and fairly held. And, therefore, when an election is contested upon the ground that one or more persons were unlawfully denied the right to vote, it devolves upon those who so attempt to set aside a declared result of the election to show by clear and satisfactory testimony that such persons possessed all the necessary qualifications of a voter. This rule of law is not controverted by counsel for appellants, nor is it denied that the burden rests upon them to show that Mr. Reeves and the two Walkers resided in school district No. 22.

In the motion for rehearing and argument in support thereof, it is stated that the proof referred to was made, but that the judge inadvertently omitted the same from the statement of facts; but, notwithstanding such omission, it is contended that the testimony set out in the statement of facts, considered in connection with the judgment, shows that they did so reside. That contention may be correct in so far as Mr. Reeves is concerned, because he testified that he owned a farm near Cherokee, in school district No. 22, and that he was residing thereon at the time he offered to vote. No witness testified that either of the Walkers resided in that district.

The proof shows that the election was held at a place called “Cherokee,” which we presume, from the circumstances, is a small town or village, but whether all or only part of it is within school district No. 22 does not affirmatively appear in the statement of facts. Clay Walker testified:

“X was 21 years old in September, 1&15. On the 31st day of January, 1916, I went to the tax collector’s office and obtained my exemption certificate, and at the same time I secured an exemption certificate for my twin brother, Ray Walker. I had no written authority from him, but the tax collector gave his exemption to me. I owned 15 or 16 head of cattle and 2 head of horses on the 1st day of January, 1916. My father had rendered said property for taxes before I became of age and had paid the taxes on same for 1915. X had never voted before. On the day of the election I went to the voting place for the purpose of voting, and the judges refused to allow me to vote. I had with me my exemption certificate and also the exemption certificate of my brother Ray. The judges and myself had considerable argument, but they refused to let me vote because the tax rolls did not show that I paid any taxes. They claimed that I had to be a taxpayer. I told them what property I owned. The judges nor any one else did not request me to sign an affidavit. I did not know that I had to sign an affidavit. I did not know anything about it, as this was my first vote. I was born and raised at Cherokee, and all the judges knew me. They refused to let me vote because I had not paid any taxes and my name was not on the tax rolls. If I had been permitted to vote, I would have voted against the issuance of the bonds. After I left the voting place, which was at the schoolhouse, and went down in town, I met my twin brother Ray, and told him that they would not let me vote. I gave him both exemption certificates and he started off in the direction of the voting place. I did not offer to make an affidavit that I owned the property that I stated that I owned nor that I was a qualified voter.”

Ray Walker’s evidence was as follows:

“I am a twin brother of Clay Walker, and on the day that the bond election was held at Cherokee I met my brother Clay in Cherokee. He gave me our exemption certificates, and he told me that they would not let him vote and did not suppose they would let me vote. X started to the voting place, and when about 50 or 60 steps from the schoolhouse where they were voting I met Mr. Hamner, who was one of the election officers, and he told me that they had refused to let my twin brother Clay vote, and he supposed that they would not allow mo to vote. I went to the schoolhouse, and at the door I asked if they would let me vote, and some one said, ‘No, you are not a qualified voter.’ I don’t know who made this statement, don’t know whether it was one of the officers of the election or not; the officers holding the election were some six or eight feet to the west of this door. I did not offer to make an affidavit, nor did I demand the right to vote; that is all I said. When some one said no that I could not vote I turned and walked off. I saw Mr. Barber, Thaxton, and Gay; they were officers of the election. Don’t remember whether they spoke to me or not. I was the owner of several head of cattle on January 1, 1916. These cattle were rendered for taxes by my father for the year of 1915, and he paid the taxes on same for that year. I had lived near Cherokee all of my life. All of the judges knew me and that brother Clay and I were twins. XIad I been allowed to vote I would have voted against the issuance of the bonds. I did not secure my exemption certificate in person, but had my brother to secure it for me from the collector when he got his. I gave him no written instrument or authority to secure this exemption certificate for me, but simply told him to get mine - when he se* cured his.”

It will be noted that neither of the Walkers testified that he lived in school district No. 22. Clay Walker stated that he horn and raised at Cherokee, while Ray Walker, his twin brother, testified that he had lived near Cherokee all of his life. Two of the officers of the election testified that they knew the two Walkers; that Clay Walker came to the polls and offered to vote, and he was not allowed to do so, because the tax polls furnished the officers did not show he was a taxpayer. One of them testified that Mr. Reeves was not allowed to vote, because they did not believe that he was at that time a resident of precinct No. 22, and he refused to make an affidavit stating that he was such resident.

Counsel for appellants frankly concede, in their written argument in support of the motion for rehearing, that the testimony relating to the residence of the two Walkert is meager and unsatisfactory, but still they contend that it is sufficient to show that both of them reside in school district No. 22.

The concession that the testimony referred to is unsatisfactory, it seems to the writer of this opinion, should be regarded as sufficient reason why this court should not reverse the judgment of the trial court, and set aside the election. While the election was held at a schoolhouse in the town or village of Cherokee, and while we, therefore, assume that the schoolhouse referred to waá in school district No. 22, still it does not appear that all of the territory which comprises what was known as Cherokee was within school district No. 22. While the inhabitants of that place may not have been numerous, still it was not shown to be incorporated with fixed boundaries, and, as a 'matter of fact, its boundaries may have been indefinite. One of the Walkers testified that he was born at Cherokee, while his twin brother testified that “I had lived near Cherokee all of my life. All of the judges knew me, and that brother Clay and I were twins.” And he did not testify, as stated in appellants’ motion for rehearing, that he had lived at Cherokee all of his life. According to his testimony, the fair inference is that the Walker family, of which he and his twin brother were members, had long resided near, instead of at or in, the village of Cherokee; and therefore if it be conceded, though it was not proved, that the whole village of Cherokee is within school district No. 22, still, if the Walker family only resided near and not in Cherokee, then neither of the Walkers was entitled to vote, because they were not residents of the district in which the election was being held. Hence we decline to change our ruling upon that branch of the case.

However, we have reached the conclusion that the judgment should be affirmed upon another ground, which is the first reason assigned in the judgment for deciding the case against appellants; that is, because it was not shown that proper notice to< contest the election was served on the ap-pellee within the time required by law.

The statute regulating contested elections of this character makes the county attorney the eontestee, and requires those who desire to contest the election, within 30 days after the return day of the election, to give him notice of such contest in writing, and deliver to him, his agent or attorney, a written statement of the ground on which said contestant relies to sustain such contest, etc. Although the Constitution has been amended so as to confer jurisdiction upon the district court to hear and determine election contests, still it is settled law, and has been so ruled by this court, that the provision of the Constitution referred to is not self-executing, and that, in order to confer jurisdiction, the statute above referred to must be substantially complied with as to the written notice of contest, statement of the ground on which the contestant relies, and the time prescribed for giving the same. Bassel v. Shanklin, 183 S. W. 105. That and other decisions therein referred to follow the ruling made by our Supreme Court in Lindsey v. Luckett, 20 Tex. 516, where it was held that:

“The notice and statement of the grounds on which a party intends to contest the election, * * ? which are required to be served on the latter within ten days after return day, are the predicate upon which the power of the county court is set in motion, and without which, within the time prescribed, that court had no jurisdiction to investigate the validity or effects of such election.”

In the instant case the undisputed proof upon that subject discloses the following facts: Within less than 30 days after the return day of the election, Hon. Leigh Burle-son, as attorney for appellants, delivered to A. B. Wilson, county attorney of San Saba county, eontestee herein, the original petition in this case, which at that time had not been filed, and was not filed until long after the expiration of 30 days from the return day. The proof shows that Mr. Wilson read the petition, and the next day, or soon thereafter, at the request of Mr. Burleson, Mr. Wilson returned the petition to him; Mr. Burle-son stating that he was going to send it by mail to District Judge Stubbs, who was the judge of the district court of San Saba county. At the same time Mr. Wilson signed a written waiver of issuance and service of process, which waiver was filed with the petition after the expiration of 30 days after the return day of the election. Both Mr. Burleson and Mr. Wilson testified substantially to üie same effect in that regard, and their testimony indicates that it was contestants’ purpose, and Mr. Burleson verbally so informed Mr. Wilson, to contest the election, and that he intended to file the petition referred to for that purpose. There was no other proof of notice of intention to contest the election.

The statute prescribes that any one intending to contest an election shall, within 30 days after the return day, give to’ the con-testee notice in writing of such intention to contest, and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. This statute is mandatory, and, unless complied with within the time stated, the court has no jurisdiction to entertain the contest. The statute requires that the written document or documents delivered to the eontestee shall contain notice of two separate and distinct facts, which are: (1) The contestants’ intention to contest the election; and (2) the ground on which such contestant relies to sustain such contest. Notice of both of these facts is essential to invoke the jurisdiction of the court to hear and determine the contest, and proof of one, without proof of the other, is of. no avail. It is also required by the very terms of the statute that notice of each fact must be in writing; and therefore verbal notice, though it may be just as satisfactory to the eontestee, is not such compliance with the statute as confers power upon the court to hear and determine the contest.

Applying that statute to the case at bar, we think it must be held, as was done by the learned trial judge, that the contestants in this case failed to serve upon, or deliver to, the eontestee any written notice of their intention to contest the election. It may be conceded that delivery to him of the petition, setting forth the ground upon which it was claimed that the election was illegal, constituted compliance with one portion of the statute; but it contained no notice notifying the eontestee that it was the intention of the contestants to file that petition in court and use it as a basis of a contest. It is no answer to that proposition to say that the con-testee knew from what Mr. Burleson told him that it was the intention of the contestants to contest the election. Such information was not in writing, and therefore it did not constitute compliance with the statute.

Our decision upon this point is not in conflict with Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169, decided by the Galveston Court of Civil Appeals. In that ease a petition to contest the election was filed; citation was issued thereon and served upon the eontestee, together with a copy of the petition, within less than 30 days after the return day of the election; and the court held that the copy of the citation, which was delivered to the eontestee, constituted substantial compliance with the provision of the statute requiring written notice of intention to contest; and that the copy of the petition, which was delivered to the eontestee, constituted similar compliance with the other provision, requiring a written statement of the ground of contest relied upon by the contestant. We do not controvert the correctness of that decision, because in that ease the citation that was served upon the contestee constituted notice of the intention to contest; but nothing of that sort occurred in this case.

In addition to the eases cited, we refer to Wright v. Fawcett, 42 Tex. 203; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671; Dunne v. Sayers, 173 S. W. 503.

Hence we conclude that the judgment of the trial court must be sustained for the reason just stated.

Motion overruled.
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author: DAVIDSON, P. J. MORROW, J.

text:
    LLOYD v. STATE.
    (No. 4577.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <@=1169(1) — Admission ox Evidence — Relevancy— Reversible Error.
    In prosecution for rape upon girl under 15 where intercourse was clearly proven, and there was no issue as to her previous character or age, the admission of irrelevant evidence as to defendant’s disgusting familiarity, in view of verdict awarding defendant 35 years, the minimum being 5, was reversible error.
    Prendergast, J., dissenting.
    Appeal from District Court, Tarrant County; E. O. MeKinsey, Special Judge.
    Ered Lloyd was convicted of rape on a female under 15, and lie appeals.
    Reversed and remanded.
    Graves & Houtchens, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape on a girl under 15 years of age, and was awarded 35 years’ confinement in the penitentiary.

It is unnecessary to make a detailed statement of the facts. The state beyond any question proved that appellant had intercourse with the girl on several occasions at their rooms in a rooming house in the city of Ft. Worth. He had induced the parents of the child, who lived in Dallas, to let him have the girl to train her “for the stage,” she having a great desire for that avocation. He took her to Ft. Worth for the purpose of training her for the stage, especially singing and dancing. After being in Ft. Worth a short time he began sleeping with the girl. There was no contest of the state’s case, and there was no issue raised as to the facts and circumstances attending the various acts of intercourse. No objection was interposed to the various times and occasions of their intercourse, nor any question raised, or sought to be raised, as to the previous character of the girl for lewdness or anything of that sort; and in fact the evidence rather tends to exclude that she was lewd and unchaste. She seems to have objected a little the first time they had intercourse, but after that seemed to interpose no objection. On the night of appellant’s arrest two officers of the humane or some other society went to his room, and through a keyhole or hole made in the door observed the conduct of the two in appellant’s room. Her room joined his. She was naked except a cloth around her private parts, and his conduct was lascivious and disgusting in the extreme. What the officers saw through this hole and over the transom, as to his conduct towards her and her conduct, was permitted to go to the jury in detail and at length. Various objections were urged to these indecent acts of familiarity as having no bearing upon the case, irrelevant, and prejudicial. It is thought not necessary and not best to repeat the account given of this lascivious conduct. It would serve no purpose, and not necessary to perpetuate in the judicial history of the state. It is contended that this was injurious to appellant. There was no question about the intercourse between them. There was no question of her age. It was not denied that he had intercourse with her, and therefore these acts of lascivious conduct and familiarity could tend to prove no issue. We are inclined to believe this contention is correct. Had there been a contest over the fact of his having intercourse with her, these might have tended to support the state’s case. There was, however, no fact it tended to elucidate, and had a serious bearing adversely to defendant. If error is committed, and it would tend to bring about a conviction, when but for such error there might be an opportunity for acquittal, such error would be reversible. Another proposition is that, conceding the guilt of an accused, if testimony erroneously admitted tending to enhance the punishment above the minimum fixed by law, the error would be equally reversible. Just what effect the introduction of this testimony had upon the jury would be difficult to tell, but it is a fact that appellant received 35 years in the penitentiary, when he might have received less had this testimony been excluded; 5 years being the minimum punishment. This illegal testimony may have assisted, and doubtless did aid, in bringing about this heavy punishment. But in any event we think it was error to admit it, and, having been awarded this high punishment, we are of opinion that the error is of such a nature that this judgment ought to be reversed, and it is accordingly so ordered.

The judgment is reversed, and the cause remanded.

MORROW, J.

(concurring). At the time the evidence, which in the court’s qualification of the bill of exception is described as “disgusting familiarity,” was admitted, the proof was abundant that the girl was under 15 years of age, that she was not the wife of appellant, and that he had had sexual intercourse with her. There was no denial of these facts, and certainly no rebutting evidence of facts detailed in the evidence of the state 'or the cross-examination or suggested therein which raised a doubt or controversy as to the fact of the intercourse.

It was held in the Battles Case, 63 Tex. Cr. R. 149, 140 S. W. 783, that in cases of this character acts of familiarity are admissible not only prior, but subsequent, to the commission of the offense. The reason for receiving them, as there given, as we understand the decision, is that they bear upon the probability that the act involved in the transaction was in fact done. In the Battles Case and the cases therein discussed there was a denial of the fact of intercourse. It was a controverted issue. At the time of the decision of the Battles Case it had not been previously decided that such testimony was receivable under an indictment for rape, but by analogy with cases of incest and adultery in which such testimony had been held admissible the doctrine was extended to cases of statutory rape, with the qualification, however, that it was to be received only as tending to solve a controverted issue.

In this case it was not admitted upon a controverted issue. The only issue upon which it could have borne was that of sexual intercourse, which was abundantly proved, and not controverted. It could have been used by the jury for no purpose other than to inflame their minds against appellant. Viewed in the light of the verdict, it is probable that it did so.

PRENDERGAST, J., dissents.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes