author: JENKINS, J.

text:
    BURLINGTON STATE BANK et al. v. MARLIN NAT. BANK et al.
    (No. 5965.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Judgment <&wkey;>582 — Effect — Merger of Cause of Action.
    Where suit has been brought and judgment obtained, the original cause of action is merged in the judgment.
    2. Judgment <&wkey;948(2) — Res Judicata — De-mubbeb — Sufficiency.
    A petition held sufficient against demurrer to state a cause of action on a note, though as a matter of fact plaintiffs had previously recovered a judgment on such note, etc., where petition did not mention such fact.
    3. Appeal and ERBob <&wkey;1056(l) — Review— Harmless Eebob.
    Exclusion of evidence as to the existence of a judgment held harmless if erroneous, where the judgment had become dormant.
    4. Judgment <&wkey;853(l) — “Dormant Judgment.”
    A dormant judgment is one which has not been satisfied or extinguished by lapse of time, but which has remained so long unexecuted that execution cannot be issued upon it without first reviving the judgment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Dormant Judgment.]
    5. Judgment <&wkey;486(l) — Dormant Judgment —Collateral Attack.
    A dormant judgment is not void, but only voidable, and for that reason it cannot be attacked in a collateral proceeding.
    6. Judgment <&wkey;486(l) — Dormant Judgment —Attack.
    As a general rule, no one has such an interest in a dormant judgment which is merely voidable that he can attack the same, except the parties thereto or their privies.
    7. Judgment <&wkey;802 — Lien — Liability of Person Conveeting Property.
    One who converted mortgaged property to his own use, the property being subject to prior lien in favor of judgment creditors, is liable to such creditors to the extent of the value of the property converted, not to exceed the amount of-their judgment.
    8. Chattel Mortgages <&wkey;49(2) — Description-Sufficiency.
    A chattel mortgage describing the property as “one white horse about 16 hands high, branded -,” is void for want of sufficiency of de-
    scription.
    9. Chattel Mortgages <&wkey;49(l) — Description-Sufficiency.
    A chattel mortgage describing the property as “one span brown horse mules, bought of said B. & B.,” who were the mortgagees, held sufficient as against any one who had notice of the mortgage.
    10. Appeal and Error <&wkey;1151(2) — Reversal —Grounds.
    Where á judgment was excessive to the amount of $38, and-the error is plainly discernible, held that that is not ground for reversal, as the judgment might be reformed and affirmed.
    11. Chattel Mortgages <&wkey;157(2) — Mortgagee in Good Faith — Evidence.
    In an action between conflicting lienholders, evidence held insufficient to sustain a verdict to the effect that appellant, a chattel mortgagee, did not take its mortgafee in good faith.
    12. Chattel Mortgages <&wkey;117 — Construction-Description.
    A crop mortgage describing the property as “10 bales of cotton, now being picked and to be ginned,” covers cotton which was then in the process of being picked, and is not restricted to such cotton as was being separated from the stalk on the day of execution.
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Action between the Burlington State Bank and others and the Marlin National Bank and. others. ’ From a judgment for the lat-
    ter, the former appeal.
    Reversed and remanded.
    See, also, 166 S. W. 499.
    W. A. Morrison, of Cameron, for appellants.
    Roy Baskin, of Cameron, for appellees Batte & Baskin.

      W. E. Rogers, of Marlin, for appellee Marlin Nat. Bank.
   Findings of Fact.

JENKINS, J.

1. On October 15, 1909, Ben Johnson purchased two mules from Batte & Baskin, in Cameron, Milam county, Tex., and to secure the purchase price of same executed a mortgage to them on, among other things, said mules and a horse, describing the same as “one span brown horse mules bought of said Batte & Baskin, and one white horse about sixteen hands high, branded -.” Johnson at that time lived on the Tarver-Henslee farm, in Falls county, about two miles north of the line between Falls and Milam counties. This mortgage was filed for record in Milam county October 22, 1909. It was never filed for record in Falls county.

2. On November 1, 1909, Ben Johnson executed his note to the Burlington State Bank, hereinafter referred to as the Burlington Bank, for $500, and to secure the same executed a mortgage on property described as follows:

“One black horse mule, about fifteen hands high, 6 years old; one black horse mule, 6 years old, about fifteen hands high; one black horse mule, 4 years old, about fifteen hands high; one black mare mule, 4 years old, about fifteen hands high; one bay horse mule, about fifteen hands high, 5 years old; one blue horse, about fifteen hands high, 7 years old; one sorrel horse, about fifteen hands high, 7 years old; one sorrel horse, about fifteen hands high, 8 years old; also my entire crop to be grown on the Henslee farm in ‘Falls, Texas,’ consisting of 185 acres to be planted in cotton and 20 in corn, all to be grown during the year 1910, owned entirely by us, without any in-cumbrance.”

3. This mortgage was duly filed in Falls county, December 21, 1909.

4. On November 1, 1909, Ben Johnson executed another mortgage to the Burlington Bank, on “one gray horse about six years old and about sixteen hands high,” to secure a note of $25. This mortgage was duly filed for record in Falls county, December 21, 1909.

5. The two mules described in the mortgage to Batte & Baskin as brown horse mules were the same as the two described in the mortgage to the Burlington Bank as black mules, and the horse described in the mortgage to Batte & Baskin as a white horse was the same as the one described in the mortgage to the Burlington Bank as a gray horse. These mules and the horse were of such colors that the descriptions as to colors given in each mortgage would fit them fairly well.

6. In December, 1910, the Burlington Bank took possession of, among others, the two horse mules, and the white or gray horse mentioned in its mortgage, and in the mortgage to Batte & Baskin, and sold the same. The market value of said mules at -the time they were so taken possession of was $300, and of said horse was $60.

7. On October 7, 1910, Ben Johnson, to secure his note for $615 to the Marlin National Bank, hereinafter referred to as the Marlin Bank, gave said bank a mortgage on the following property:

“One blk. horse mule, 6 years old, about 15½ hands high, named Tobe; one blk. horse mule, 7 years old, about 15½ hands high, named Henry; one blk. mare mule, 5 years old, about 15 hands high, named (Kit); one blk. mare mule, 6 years old, 15 hands high, named (Bet); one light bay mare mule, 5 years old, 15 hands high, named (Ella); one light bay mare mule, 5 years old, 15 hands high, named (Kate); one roan horse, 6 years old, 16½ hands high, named (Henry); and ten bales of cotton, crop of 1910, now being picked and to be ginned at Highbank, in Falls county, Texas.”

8. This mortgage was duly filed in Falls county, October 13, 1910.

9. During the years 1908, 1909, and 1910 Ben Johnson was a tenant on the Tarver-Henslee farm, in Falls county, during which time Tarver-Henslee were also in the mercantile business at Rosebud, in Falls county, near said farm, and they furnished Johnson provisions and other things necessary for him to carry on the farm.

10. The Marlin Bank brought suit against Ben Johnson on his note and to foreclose its mortgage. By amendment it made the Burlington Bank, the Planters’ National Bank of Rosebud, Tex., and Tarver-Henslee parties defendant. The Burlington Bank im-pleaded Batte & Baskin and others not necessary to mention, as they were dismissed from the suit.

11. The case was tried July 13, 1913, and resulted in a judgment against Ben Johnson in favor of the Marlin Bank for $853.49, in favor of the Burlington Bank for $162.26, and in favor of Batte & Baskin for $259, with interest on each of said judgments at the rate of 6 per cent, per annum. There were also judgments entered as between the other parties to the suit, from which there was an appeal. The judgments as above stated against Johnson were affirmed on appeal by this court April 1, 1914, and reversed as to other matters (see 166 S. W. 499).

12. No execution has ever been issued on either of the judgments against Johnson, by reasQn of which said judgments were dormant w:hen this case was tried, June 2, 1917.

13. This cause was retried by the district court of Falls county, and submitted to a jury on special issues; and, in accordance with the verdict of the jury, the court entered judgment substantially as follows: (a) That the plaintiff the Marlin Bank take nothing as against the Burlington Bank; (b) that plaintiff recover of Tarver-Henslee $514.35, with 6 per cent, interest thereon from Jan-nary 1, 1911 ; (e) that the Burlington Bank take nothing against Tarver-Henslee; (d) that Batte & Baskin recover against the Burlington Bank $350, with 6 per cent, interest thereon from January 1, 1911, not exceeding however, the amount of their debt against Johnson, which is found to he $358.-41; (e) that plaintiff take nothing against Batte & Baskin; (f) that payments made by Tarver-Henslee under this judgment be credited on plaintiff’s judgment against Johnson; (g) that payments made by the Burlington Bank to Batte & Baskin be credited on their judgment against Johnson; (h) that execution shall first issue against Johnson before being issued against either Tarver-Henslee or the Burlington Bank.

14. The Burlington Bank and Tarver-Henslee appealed from said judgment.

Opinion.

Appellants by their assignments Nos. 1, 2, and 3 present the issue that the judgment herein against them is erroneous, for the reason that the former judgment herein in favor of Batte & Baskin against Ben Johnson merged their note in said judgment, and the same, having been affirmed on the former appeal, is res' judicata, and therefore said note could not be made the basis of a judgment on the trial of this cause; that Batte & Baskin, having filed an amended petition herein subsequent to the affirmance of said, judgment, in which they sought judgment against Johnson on the note, and not on the judgment, and did not seek to revive or reform said judgment, showed no cause of action herein against said Johnson; and that, as their petition shows that primarily they had no cause of action against these appellants, they were not entitled to judgment against them herein.

These objections were raised by demurrer, by objections to the evidence,. by requested peremptory instructions, and by motion for new trial.

It is true, as contended by appellants, that, when a suit has been brought and a judgment obtained, the original cause of action is merged in the judgment. United States v. Leffler, 11 Pet. 98, 9 L. Ed. 647; Hamer v. Ry. Co., 244 U. S. 266, 37 Sup. Ct. 511, 61 L. Ed. 1129; Mason v. Eldred, 6 Wall. 231, 18 L. Ed. 785; Neill v. Tarin, 9 Tex. 259; Drane v. Gunymere, 2 Posey, Unrep. Cas. 500.

In United States v. Leffler, supra, the court said:

“If there be any one principle of law settled beyond all question, it is this, that whensoever a cause of action, in the language of the law, transit in rem judicatam, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever.”

The petition of Batte & Baskin did not mention the former judgment against Johnson. As a suit upon his note it was good against demurrer. Appellants alleged such judgment and the evidence showed it. It also showed that such judgment was unsatisfied, and, had the excluded testimony been allowed by the court, it would have shown that the judgment against Johnson was dormant. This evidence was excluded on the ground that it was. immaterial. If such evidence was material, we think its exclusion was harmless, for the reason that the date of such judgment, together with the fact that there was no evidence that execution had ever been issued thereon, showed that it was dormant. A judgment in this state, upon which no execution has been issued within 12 months after its rendition, is dormant. A dormant judgment is one which has not been satisfied nor extinguished by lapse of time, but which has remained so long unexecuted that execution cannot now be issued upon it without first reviving the judgment. Spiller v. Hollinger, 148 S. W. 340.

The question presented by the facts of the instant case is, could any one but Johnson take advantage of such dormancy? A dormant judgment is not void, but only voidable, for which reason it cannot be attacked in a collateral proceeding. Meader v. Aringdale, 58 Tex. 450; Riddle v. Turner, 52 Tex. 150; Boggess v. Howard, 40 Tex. 159; Taylor v. Doom, 43 Tex. Civ. App. 59, 95 S. W. 5; Maverick v. Flores, 71 Tex. 110, 8 S. W. 637.

As a general rule, no one has such interest in a judgment that is merely voidable, as that he may attack the same, except the parties thereto or their privies. The effect of the judgment on the former appeal and that rendered upon the last trial is that there are two judgments against Johnson in favor of Batte & Baskin on the same cause of action, but, as Johnson is not complaining of this, we do not see why appellants should do so. Batte & Baskin sought to hold appellants only secondarily liable, and the judgment, as shown by the thirteenth section of our findings of fact, supra, does so.

Appellants, by their fifteenth assignment of error, make the same contention as to the judgment in favor of the Marlin Bank. The only difference between the petition of Batte & Baskin and the Marlin Bank is that the latter sought judgment on both Johnson’s note and its former judgment. Johnson did not complain of this. The judgment in favor of the Marlin Bank against appellant Tarver-Henslee was secondary to its judgment against Johnson.

Appellees’ alleged cause of action against appellants was not on the debt owing by judgment, but for conversion of property mortgaged by Johnson. If their judgment against Johnson for their debt is valid, and the appellants converted property upon which appellees had a prior mortgage lien, they are entitled to judgment against appellants, if they converted the mortgaged property, or any part thereof, to their own use, to the extent of the value of the property so converted, not to exceed the amount of their debt against Johnson.

For the reasons stated, we overrule appellants’ first, second, third, and fifteenth assignments of error.

Appellants contend that the mortgage in favor of Batte & Baskin was void for want of description of the property therein attempted to be mortgaged.

We sustain this contention as to the white horse. (See findings of fact, Sec. 1.) A mortgage of an animal which is described only by its age, height, and color, the same being common to animals of that species, is void. Burlington Bank v. Marlin Bank, 166 S. W. 502; Maloney v. Greenwood, 186 S. W. 228; Johnson v. Brown, 65 S. W. 485; Young v. Bank, 97 Mo. App. 576, 71 S. W. 714; Ames v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 249; Pitluk v. Butler, 156 S. W. 1136.

We think, however, that the further description of the mules as being bought from Batte & Baskin, whose residence is given in the mortgage, is sufficient as against ony one who had notice of such mortgage. The reasonable inference from the words, “bought from Batte & Baskin,” is that they were so bought by the mortgagee.

The amount of the judgment to which Batte & Baskin were entitled against Ben Johnson was determined by the former judgment, to wit, $259, with interest thereon at the rate of 6 per cent, per annum from July 13, 1913. The court rendered judgment herein for $358.41, which was excessive to the amount of $38.89. This, however, would not be cause for reversal, as the judgment, if otherwise correct, could be reformed and affirmed.

After careful consideration, we have arrived at the conclusion that we should sustain appellants’ assignment that the verdict of the jury that the Burlington Bank was not a mortgagee in good faith is not supported by the evidence. There are some contradictions as to minor matters in the testimony of Jones, the cashier of the bank, and Johnson. In deference to the verdict of the jury, we must take it for granted that they believed Johnson as to the contradictory matters. After excluding Jones’ testimony as to matters wherein he was contradicted by Johnson, the facts shown by the record are substantially as follows:

About the last of September, 1909, Johnson stated to Jones that he wanted to go to Cameron to pay out some mules that his brother owned, and desired to borrow $300 with which to buy the mules. Jones agreed to loan him the money and take a mortgage on the mules, if they were clear. On the evening of that day the cashier of a bank in Cameron called Jones over the phone, and asked if the Burlington Bank would honor Ben Johnson’s draft for $300, and Jones told him it would. A draft for that amount was drawn by Johnson and paid by the bank on October 4, 1909. About a week afterwards Johnson executed the mortgage to the bank on some mules and other stock to secure the $300 note, which was due in 30 days. On November 1, 1909, Johnson came to the bank, and said that he could not pay the $300, and asked for a loan of $200 more, the whole to be carried a year, offering to mortgage as security therefor certain stock' which he claimed to have. Jones agreed to this, and took Johnson’s note for $500 and the mortgage set forth in subdivision No. 2 of the findings of fact, supra. The first mortgage did not include the two brown or black horse mules, for the obvious reason that Johnson had not then bought them. As Jones was informed before the first mortgage was taken that Johnson was going to buy the mules that day in Cameron, it might be said that he should have phoned to the county clerk to know if there was any mortgage against the mules that Johnson was buying, given either by the party from whom Johnson was buying them, if he had known or could have ascertained who such party was, or by Johnson himself. If he had done so, the reply would have been there was not. Before the second mortgage was given to the bank Johnson had bought the two horse mules from Batte & Baskin and given them a mortgage on them. The mortgage, not being filed in Falls county, was not constructive notice to Jones. Had he inquired of the clerk of Milam county at that time, he would have learned of this mortgage; but why should the bank inquire of the clerk of Milam county at that time as to whether a chattel mortgage had been executed by a citizen of Falls county? It is not made to appear that Jones knew that Johnson had bought any mules there since about September 1st, or that he had been back to Cameron, or that he had ever bought any mules from Batte & Baskin. The mortgage given by Johnson to the Burlington Bank stated that there were no liens on the property mortgaged, and Jones, in accordance with his custom, required Johnson to swear to this.

So. far as we are able to see, the record does not disclose any fact calculated to arouse the suspicion of a reasonably prudent man, which, if followed up, would have led Jones to a knowledge of the existence of the mortgage in favor of Batte & Baskin. Jones’ testimony makes a stronger ease for thehank than above stated, but we have not taken into consideration any of his testimony where it was contradicted by Johnson. It is not our province to pass on the credibility of witnesses or the weight to be given to their testimony.

Appellants contend that the description in the mortgage to the Marlin Bank, “ten bales of cotton crop of 1910 now being picked and to be ginned at Highbank,” applies only to such cotton as was being separated from the stalk on that day.

To this we do not agree. We think it meant the cotton that was then in process of being picked, though it may have taken some time to finish the job.

The testimony in support of the judgment in favor of the Marlin Bank against Tarver-Henslee is not very satisfactory, and, as this case must be reversed in part, we have concluded to reverse and remand the entire case for a new trial.

Reversed and remanded.
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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    EASON v. FOWLER et al.
    (No. 2020.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 22, 1918.
    On Motion for Rehearing, Dec. 5, 1918.)
    1. Vendob and Pubchaseb <§=187 — Acceptance oe Payment — Waives.
    Where a land contract provided that the sale might be declared void if the first note with interest were not paid on a fixed date, and the grantee refused to accept the payment, he waived his right to payment on such date.
    2. Vendob and Pubchaseb <§=320 — Action BOB PUBCHASE MONEY — ATTOBNEY’S FEES.
    Where notes given for purchase price of land contained only the usual stipulations regarding payment of attorney’s fees, refusal of vendor and payee to accept payment of the first note when it became due, at which time the maker of the notes and his vendee were ready and able to pay, estopped the payee from claiming attorney’s fees.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Proceeding between J. T. Eason and T. W. Fowler and others. From a judgment adverse to Eason, he appeals.
    Affirmed, and rehearing denied.
    J. W. Gross, of Bonham, for appellant.
    Rosser Thomas, of Bonham, for appellees.
   HODGES, J.

This case was tried in the court below without a jury, ¿and the following is the substance of the findings of fact and conclusions of law filed by the trial judge:

In October, 1916, the appellant, Eason, sold to the appellee Fowler the tract of land in controversy. The conveyance recited a consideration of $1 in cash, the assumption of an unmatured mortgage debt of $1,400 due Pearson & Taft, and seven promissory notes for $314.30 each, the first of which was due on or before January 1, 1918, and one each year thereafter, all payable to Ea-son. The notes bore interest at the rate of 8 per cent, per annum payable annually, and contained the usual stipulations regarding payment of attorney’s fees. At the time the conveyance was executed Eason and Fowler entered into a separate written agreement which, in effect, provided that if Fowler failed to pay the first note at maturity, together with the interest on the balance of the indebtedness which had accrued up to January 1, 1918, he was to pay Eason the sum of $288 as rents for the use of .the land for the year 1917, and Eason had the right to declare the sale void and recover possession of the land. During the year 1917 the land was in possession of the appellee Garter as a tenant. In November of 1917 Fowler sold to J. R. Carruth for the sum of $600 cash and the assumption of all the notes and indebtedness assumed by Fowler, less interest which accrued up to January 1, 1918. Oarruth liad no notice, actual or constructive, of the written agreement between Fowler and Eason for the cancellation of the trade in the event of default in the payment of the indebtedness due January 1, 1918. The notes executed by Fowler to Eason were, in December, 1917, in the hands of Hendrix & Moor, land agents in Bonham. About the 28th of that month Fowler and Oarruth went to the office of Hendrix & Moor for the purpose of paying the first note and the interest due on the remaining indebtedness. They were able and prepared to make such payment, and had previously notified Eason of their purpose, but the latter had instructed Hendrix & Moor not to receive payment. Some time prior to that date Eason had taken possession of the premises and had refused to permit Carruth or Fowler to go upon them. On January 1,1918, Fowler was in Bonham, ready and willing and able to pay the interest on all of .the notes, but Ea-son, who lived some distance in the country, was not there. On the day following Fowler and Carruth again went to Bonham and endeavored to pay the note and all interest due, but were not permitted to do so by Eason. At that time Fowler tendered Eason in cash the sum of $176, being the interest on the $2,200 Fowler notes, which was refused. Carruth had arrangements made for the First State Bank of Bonham to pay off the $314,30 note, and on that day informed Eason, requesting him to present the note at the bank, upon which it would be paid. The bank referred to was about a block from where the parties were at the time. Eason refused to present the note for payment, stating that he would not accept less than an amount sufficient to discharge all of the notes, with 10 per cent, attorney’s fees, and finally stating that he would not accept less than all of the notes with $81.50 as attorney’s fees. He claimed that on that date the notes had been placed in the hands of an attorney for collection. On the same day Fowler went to the office of the agent of Pearson & Taft, ready and willing and able to pay the interest on the note held by them, but found that Eason had paid the interest an hour before. The court finds that Eason at no time after December 28, 1917, would have accepted the payment of the first note and interest unless attorney’s fees were paid also. The value of the land in controversy had increased since the sale by Eason, and was worth much more than what Fowler had agreed to pay for it in the original trade. Carter occupied the premises up to the middle of December, 1917. He cultivated the land, agreeing to pay as rent one-third of the grain and one-fourth of the cotton. The cotton rent amounted to $177.70, which amount he deposited in the bank, and left the grain rent on the rented premises, and it was there at the time Eason took possession.

The court further finds that it had been agreed between Eason and Fowler in January, 1917, that -Eason was to look after the collection of the rents for that year and to credit the value of the rents on Fowler’s notes. The reasonable rental value of the premises, less the value of rents received by Carruth and Fowler for 1917, was the sum of $272.15. Fowler endeavored to pay the taxes, amounting to $14.85, due for the year 1917, but Eason had rendered the land in his own name previous to its rendition by Fowler, and the tax collector would not permit. Fowler to pay taxes on that, tract of land unless he paid all of Eason’s taxes for the year 1917.

The court further finds that Eason so conducted himself as to indicate to Fowler and Carruth that he would not accept payment of the amounts due on the note and interest at any time from December 28, 1917, up to the date of trial.

The coui-t concludes, as a matter of law, that Fowler and Carruth made no default in the payment of the principal of the first note or of any portion of the interest due or the taxes due on the land; that the declarations and conduct of Eason constituted a waiver of payment on January 1, 1918, and he was estopped from claiming attorney’s fees; that Eason’s agreement to look after the rents for 1917 made him liable for the reasonable rental value of the premises, and the amount due him from Fowler should be credited with the sum of $272.15. The readiness and ability of Fowler and Carruth to pay the debt at the time it was due, and since that time, absolved them from liability for attorney’s fees and from costs, provided the sum of $345, the balance due Eason, be paid into the registry of the court before the judgment becomes final; otherwise they will be charged with costs, and the land will be subject to- a foreclosure for payment of the debt.

Judgment was rendered exonerating Carter from any liability, because of his having tendered and paid into court all the rents due, and in favor of Eason for the sum of $345 against Fowler and Carruth.

It is contended on this appeal that the evidence was insufficient to support the findings of the trial judge. We have examined the record, and have reached a contrary conclusion, and the judgment is affirmed.

On Motion for Rehearing.

In disposing of this case on the original hearing the writer did not discuss the facts at length or the assignments of error in detail, because he felt that no useful purpose could be served by so doing. While an extended discussion of facts and assignments in this character of cases may interest the litigants concerned and their attorneys, it rarely benefits the profession at large. But the fact that all the issues involved are not discussed in detail in the written opinion is not, so far as this court is concerned, to be taken as evidence that the record was. not examined, or that the questions raised were not carefully considered. We regard this case as purely one of fact. The evidence has again been examined, and we feel justified in saying that the material and controlling conclusions upon which the judgment must be sustained are amply warranted by the testimony. We are further of the opinion that the judgment rendered in the court below is not only legally correct, but is a just and fair disposition of the controversy upon its merits.

The motion for rehearing is overruled.
      other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    SANTA FE TOWN-SITE CO. et al. v. NORVELL.
    (No. 295.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 13, 1918.)
    1. Highways @=>159(2) — Restraining Obstruction-Decree.
    Judgment establishing plaintiff’s right to the use of particular roadway held not objectionable as decreeing title to the land.
    2. Dedication @=>16(1) — Roadway — Judgments — Acts oe Public Officials.
    Where road had long been used as public roadway, a judgment sanctioning agreement that road be opened up and dedicated as a public road, in connection with another judgment ordering road to be opened and an obstruction removed and the acts of the parties to the judgment, owners of land upon which right of way was located and public officials treating road as public highway, constituted a dedication to public use.
    3. Dedication @=>16(1) — Public Road — Judgment by Agreement.
    District court’s judgment giving legal sanction to agreement of parties, whereby road long used as public road was opened up and dedicated as a public road, was not invalid as an infringement upon exclusive rights of commissioners’ court to lay out public road.
    4. Highways @=>153 — Obstruction of Public Highway.
    The obstruction of a public highway is a nuisance.
    5. Highways <S=»155 — Injunction—Obstruction.
    The right of a private party to restrain the obstruction of a public highway is dependent upon sustaining some special injury different in hind from that sustained by the public.
    6. Highways @=>155 — Obstruction — Right to Enjoin — Special Injury.
    Owner of land materially affected in value by obstruction of public highway has the right to restrain such obstruction, having sustained a special injury different from that sustained by general public.
    7. Highways @=>76, 153 — Rights in Public ■Highway — Authority op Commissioners’ Court.
    A road never located by a jury of view may be ordered closed without notice or hearing, but where a landowner’s rights were not confined to general rights of public, but had been established by a judgment long prior to litigation, commissioners’ court could not waive such rights for him nor authorize closing or obstructing of roadway without his consent.
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Action by W. J. Norvell against the Santa FS Town-Site Company, J. L. Seibert, and others. Judgment for plaintiff, and defendants named appeal.
    Affirmed.
    Oliver J. Todd and W. G'. Reeves, both of Beaumont, for appellants. '
    V. A. Collins, of Beaumont, for appellee.
   BROOKE, J.

This action was brought in the district court of Hardin county by the appellee against the Santa Fé Town-Site Company, J. L. Seibert, J. G. Reeves, and Sam Littlepage, to enjoin the obstruction of an alleged public road between Silsbee and Woodrow, in Hardin county. There was a judgment in appellee’s favor establishing the right of appellee to an easement in the roadway in question 60 feet in width, and enjoining the appellants from interfering with the rights of appellee, and commanding the said Seibert to remove from said roadway, for the full space of 50 feet, the fence constructed by him across the same, and from this judgment the Santa Fé Town-Site Company and J. L. Seibert have appealed.

This case was once before in this court upon appeal from an order granting a temporary injunction (Santa Fé Town-Site Co. v. Norvell, 187 S. W. 978), and the character of the road in question and other facts involved in this appeal were subsequently before this court (Santa Fé Town-Site Co. v. Parker, 194 S. W. 487), and from the said cases a full report of the facts therein can be found.

It is contended by the appellants that the judgment of the trial court is fundamentally erroneous, in that it decrees the title to the disputed strip of ground, when no such relief is asked' in the petition. The judgment of the trial court, as we read it, only establishes the right of the appellee in and to the use of the particular roadway, and, when so read, we do not think that it is subject to the objection that it decrees title to the tract of land. In other words, ■ the judgment to enforce the right of appellee to the free and unobstructed use of the road could legally and would naturally establish in him the right to that use, and, although the judgment in this case may not use the most expressive language, still this is intended, and is clearly to be found from the language used, and in our 'judgment does not attempt to decree title in any respect.

Appellants contend that the trial court erred in holding that the road in question was a public road. We dealt with this question, as applied to the road under consideration, in the case of Santa Fé Town-Site Company v. Parker, supra, and there concluded that all the facts established a dedication of the road, and we still adhere to that conclusion. The judgment in the Norvell Case, as we read it, did not attempt to lay out a public highway, but simply ordered the opening up of the road for public use, which road, before the rendition of that judgment, had its existence as a public road, and the subsequent act of the parties, as well as the officers of Hardin county, in dealing with the road so opened, amounted to a dedication of the road as the public highway.

Appellants also complain of the trial court in holding that the judgment in the case of Busby v. Santa Fé Town-Site Co. was a valid judgment, and the effect was to lay out a public road. The facts of this judgment are fully recited in the case of Santa Fé Town-Site Co. v. Parker, supra, and in our opinion there is no error in the judgment of the trial court in its holding with reference to this judgment. We see nothing in the judgment to render it invalid, and we do not read that judgment as laying out a public road in the sense or manner that it would be infringing upon the exclusive powers of another tribunal. The judgment was one by agreement, and simply gave legal sanction to the agreement of the parties thereto that a certain road would be opened up and dedicated as a public road. Its location was agreed upon, and all this in line with the conditions, made at the time, that a road was already located at this point, and established by long-continued use. We do not read the judgment in the case of Santa Fé Town-Site Co. v. Norvell as having the effect of laying out or creating a public road; but as said in the case of Santa Fé Town-Site Co. v. Parker, supra, we believe that all of these judgments together, in connection with the acts of the parties to the judgment, as well as the owners of the land upon which the road’s right of way is located, and the officers of Hardin county, constituted and became in law a dedication of the road to public use.

Appellant complains of the holding of the trial court that appellee was authorized to maintain this action on behalf of the public generally for the changing of the public road, on the theory that such action could only be maintained by public officers of Hardin county. The obstruction of a public highway is a nuisance, and the right of a private party to restrain such nuisance is dependent upon sustaining some special injury different in kind from that sustained by the public; but in this case it is apparent from the evidence that appellee, Norvell, owned the property materially affected in its value by the obstructions to this particular road different from the public generally, and his rights in the premises could not, in our opinion, be classed as the general right of the public. It appears from the record that the commissioners’ court of Hardin county passed an order permitting the appellant J. I/. Seibert to change the course of the roadway, so that the same would run around and not across the lots owned by him, and subsequently revoked this order, and it is contended that the commissioners’ court could authorize the abandoning of the road without notice, and that its revoking its order abandoning the road was void, in that it could not reopen the road without taking proper steps to do so.

A road which has never been located by a jury of view may be ordered closed by a commissioners’ court, or abandoned by it without notice or hearing; but in this case the rights 'of appellee, Norvell, are not confined to the general rights of the public in the road in question, but his rights have been established long prior to this litigation by the judgment of the district court of Hardin county, and that right could not be waived or abandoned for him and without his consent by the commissioners’ court of Hardin county, and, so far as his rights are concerned, the commissioners’ court of that county did not have the power to authorize or permit as against him the closing or obstructing of the road in question.

We have carefully examined all assignments of error, and believe that they show no reversible error in the judgment of the trial court, and said judgment is therefore in all things affirmed.

HIGHTOWER, Jr., C. J., did not sit in this case.
      <§=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    HARRIS v. MOLLER.
    (No. 7658.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1918.)
    1. Venue <3=»70 — Privilege—Plea of.
    Under Rev. St. 1911, art. 1903, as amended by Acts 35th Ueg. a 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), the averments of a defendant’s verified plea of privilege that he was a resident of a county other than the one in which suit was brought are prima facie proof of the facts averred, and must be accepted as true, where the controverting answer filed by plaintiff attempted to defeat the plea solely on the ground that contract on which suit was brought was to be performed in the county where the venue was laid.
    2. Venue <®=>7 — Contracts—“F. O. B.”
    Where plaintiff sold hay to defendant f. o. b. at a point in Galveston county, but drafts, with bill of lading attached were to be sent to county of defendant’s residence, held, that the contract cannot be construed as one to be performed within Galveston county, the expression “f. o. b.” cars implying no promise to pay for the hay in Galveston county so as to authorize suit therein, but merely delivery free on hoard cars at that point.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, F. O. B.]
    Appeal from Galveston County Court; George E. Mann, Judge.

      Action by A. L. Moller against Ray G. Harris begun in justice court and appealed by defendant to the county court. From a judgment there for plaintiff, defendant again
    appeals.
    Reversed, and judgment rendered directing transfer of suit to another county.
    Hardway & Cathey, of Houston, for appellant.
    Maco & Minor Stewart, of Galveston, for appellee.
   LANE, J.

This suit was brought by A. L. Moller in the court of the justice of the peace of precinct No. 4, Galveston county, Tex., against Ray G. Harris, a resident of precinct No. 1 of Collin county, Tex., doing business under the name of Earmersville Grain Company, to recover the sum of $175 due as the purchase price of 19,600 pounds of hay and freight charges paid by plaintiff, under a contract evidenced as follows:

On the 13th day of April, 1917, defendant wrote a letter at Earmersville, Collin county, to plaintiff as follows:

“Earmersville, Texas, 4/13/17.
“Dear Sir: We bid you $11.50 per ton f. o. b. the cars for five to ten ears choice bright prairie hay. If you can furnish any at all wire us for shipping instructions.
“Yours truly, Earmersville Grain Co.”
Replying to said letter, A. L. Moller sent the following telegram:
“Alta Loma, Texas, April 15, 1917.
“To Farmersville Grain Co., Farmersville, Texas.
“Will furnish ten cars choice hay eleven fifty cars Alta Loma. A. L. Moller.”
Defendant Harris then telegraphed as follows:
“4/10/17.
“To A. L. Moller, Alta Loma, Texas.
“Wire received accept ten cars choice hay eleven fifty ship large car each Taylor Eddy Roundroek Nordheim Reedville Mertens Dain-gerfield Elgin Bryan Celina. Can use ten more cars same price if can furnish wire con-
firmation.
Earmersville Grain Co.”

To this telegram Moller replied by telegram as follows:

“Alta Loma, 4/16/1917.
“To Earmersville Grain Co., Farmersville, Texas.
“Wire received I will ship ten cars as instructed at eleven fifty per ton f. o. b. cars Alto Loma and will sell you an additional ten cars at same price. Advise if you want them.
“A. L. Moller.”

Defendant then sent the following telegram:

“4/17/1917.
“To A. L. Moller, Alta Loma, Texas.
“Wire received book additional ten cars eleven fifty f. o. b. confirm. Farmersville Grain Co."

This telegram was followed by the following letter:

“Farmersville, Texas, 4/16/17.
“Mr. A. L. Moller, Alta Loma, Texas — Dear Sir: As per our exchange of wires to-day we beg to confirm purchase of you ten cars choice prairie hay @ $11.50 per ton f. o. b. Alta Loma, for which we gave you shipping instructions as follows: Wier, Eddy, Roundroek, Nordheim, Reedville, Mertens, Daingerfield, Elgin, Bryan and Celina, Texas, also wired you that we could use ten more cars same price and to wire us your confirmation.
“We will thank you to rush the Eddy car as well as all other cars as fast as possible, send drafts with B/L’s attached for arrival to the First National Bank Farmersville, Texas, direct.
“With best wishes, we beg to remain,
“Yours very truly,
“Farmersville Grain Co.”

The above letter was in turn followed by the following letter:

“Farmersville, Texas, 4/17/1917,
“Mr. A. L. Moller, Alta Loma, Texas — Dear Sir: As per our exchange of wires we beg to confirm purchase of ten car loads of bright choice summer cut blackland well cured prairie hay f. o. b. cars your station.
“This makes twenty cars in all we have bought of you, and have given you instructions on the first ten car lot contract.
“Yours very truly,
“Farmersville Grain Co.”

On the 25th day of August, 1917, defendant, Harris, filed in said justice court his plea of privilege, properly sworn to, in which he alleged his residence as in precinct No. 1 of Collin county at the time of the filing of the suit, at the time of service of process, and at the time of the filing of his said plea, and further averring that he was not at the time of filing of said suit, nor at the time of service of process, nor at the time of filing his said plea of privilege, a resident .of Galveston county, Tex., nor of precinct No. 4 of said county. He also averred that none of the exceptions to exclusive venue in the county of one’s residence mentioned in articles 1830 and 2308 of the Revised Statutes of the state of Texas existed in said cause.

Plaintiff, Moller, filed his answer to defendant’s plea of privilege in said justice court reading as follows:

“Before me, the undersigned authority, on this day personally appeared A. L. Moller, personally known to me, who being by me duly sworn, upon his oath says:
“That this suit of A. L. Moller v. Ray G. Harris, Herman Harris and W. C. Brooks, doing business under the firm name of Farmers-ville Grain Company, is brought to recover damages for breach of contract made and entered into by and between said A. L. Moller and said Ray G. Harris, Herman Harris and W. C. Brooks; said contract being in writing and by its written terms binding all parties thereto to performance of said contract in. Galveston county, Texas, as more fully appears by plaintiff’s original petition. A. L. Holler.
“Sworn to and subscribed before me, this 14th day of September, A. D. 1917.
“W. J. Stoner, Notary Public in and for Galveston County, Texas.”

On the 27th day of September, 1917, the cause was called for trial in the justice court. Defendant’s plea of privilege was overruled, and, upon hearing on the merits, judgment was rendered in favor of plaintiff, Holler, against defendant Harris, for the sum sued for. Harris appealed to the county court. The transcript from the justice court was filed in the county court on the 10th day of October, 1917. The cause was called for trial in the county qourt on the 18th day of December, 1917. The plea of privilege was presented to the court, and, upon hearing evidence relating to the points of contest only, the court overruled said plea, and upon hearing upon the merits rendered judgment for plaintiff for the sum sued for. From this ruling and judgment defendant, Harris, has appealed to this court.

Appellant presents three assignments, all of which, however, present but one proposition: that is, that the court erred in overruling his plea of privilege.

We think the assignment should be sustained. The averments of defendant’s verified plea of privilege, to the effect that he was a resident of Collin county and not of Galveston county, under the provisions of article 1903 of' the Revised Civil Statutes 1911, as amended by the Acts of the 35th Legislature 1917, c. 176, p. 388 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), are prima facie proof of the facts averred and it is provided by said article that—

“If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.”

It will be observed from the controverting answer filed by plaintiff, set out herein, that the only specific fact alleged by him to exist, which, if true, would confer venue of this cause on the courts of Galveston county, is to the effect that the contract between the parties was in writing and that by its terms all parties thereto were to perform its terms and conditions in Galveston county, Tex. So, then, the averment of the plea of privilege, that defendant was a resident of Gollin county and not of Galveston county, is to he accepted as proven without further proof of the facts so averred.

This being true, then the only remaining inquiry is: Was the written contract one which was to be performed by defendant in Galveston county by its express ‘terms, or one which of necessity must be performed in said county? We are unable to find any language in the contract by which defendant expressly promised to perform its terms in Galveston county; and certainly it is not one which would necessarily require appellant to perform his part thereof in Galveston county.

As before stated, the only grounds upon which appellee claims, in his brief, that appellant’s plea of privilege was properly overruled, is that the letters and telegrams taken together constitute a written contract between the parties to be performed in Galveston county, and therefore appellant must answer to the suit brought against him in that county. He contends that the expression “f. o. b. cars at Alta Loma,” appearing in the contract, implies a promise on the part of appellant to pay the agreed purchase price of the hay at the town of Alta Loma, which is situated in Galveston county. The contention here made is, we think, in direct conflict with the uniform interpretation placed upon such contracts and expressions by the courts of this state. Burkitt & Barnes v. Berry, 143 S. W. 1187; McCullar Lumber Co. v. Higginbotham Bros., 118 S. W. 885; Russell & Co. v. Heitman & Co., 86 S. W. 75.

The initial letter, of date April 13, 1917, by appellant to appellee was in effect an offer to purchase from appellee hay to be delivered free on board cars at Alta Loma, that is, without charge for loading on cars, at a price of $11.50 per ton. This offer was accepted by appellee, and before any of the hay was shipped, on the 16th day of April, one day after such acceptance, appellant wrote appellee as follows:

“We will thank you to rush the Eddy caí-as well as all other cars as fast as possible; send draft with B/L’s attached for arrival to the Hirst National Bank of Farmersville, Texas, direct.”

We think the only reasonable interpretation to be placed upon this contract, as thus made, is that appellee agreed to sell appellant hay at a price of $11.50 per ton, and put it on ears at Alta Loma free of charge to appellant, and to forward the cars of hay to points named by appellant, and thereafter draw draft on the bank at Farmersville, Collin county, for the purchase price of the hay, at which point the draft was to be paid.

As said in the case of Burkitt & Barnes v. Berry, supra:

“If an implied promise to pay in Angelina county is shown, this would not defeat defendants’ right to be sued in the county of their residence. The agreement or promise to perform in a county other than that of the promisor’s residence, in order to fix the venue in such county, must be in writing, and the right of a defendant to be sued in the county of his residence can only be defeated when the plaintiff brings his case clearly within the exception contained in the statute. Cohen v. Munson, 59 Tex. 237; Mahon v. Cotton, 13 Tex. Civ. App. 239, 35 S. W. 869; Russell & Co. v. Heitmann & Co., 86 S. W. 75.”

This language is peculiarly applicable to the facts of the present case.

It is apparent from what has been said that we think the court should have sustained the plea of privilege and have transferred the cause to the proper court of Collin county, Tex.

It follows from the conclusions before stated that the judgment of the trial court should be reversed, and judgment here rendered directing the transfer of this suit to the court for justice precinct No. 1 of Collin county/ Tex., and it has been so ordered.

Reversed and rendered, with instructions1.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    DOLEN et al. v. LOBIT et al.
    (No. 7617.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1919.)
   Dissenting opinion.

For majority opinion, see 207 S. W. 143.

PLEASANTS, C. J.

(dissenting in part). I fully concur with my Associates in the conclusion that the judgment of the trial court in this case should be reversed, but I do not think the record presents any question of fact which requires the cause remanded for a new trial. All of the material facts are undisputed. During the time the land in controversy was held by Baker and Hutche-son as tenants at will of appellees, Dolen was the “boss” of their cattle ranch, and as such boss or foreman had general control and care of the stock and looked after the fences around the several pastures composing the ranch. He did not live on the land in question, nor in the pasture in which it was inclosed with other lands. The undisputed evidence shows that, about the time the firm of Baker and Hutcheson sold out their cattle business and Dolen’s employment with them ceased, one side of the fencing inclosing the pasture in which this land was situated was destroyed by fire and the land remained un-inclosed for several years before Dolen fenced, took possession, and set up claim to it. Neither Baker nor Hutcheson placed Dolen in possession of the land or authorized him to fence it, or even knew that he intended so doing. When Dolen took possession he did not know that appellees had a title to the land, and knew nothing of the agreement under, which Baker and Hutcheson had previously held possession of the land as tenants of appellees. I think these undisputed facts show that Dolen was never a tenant of ap-pellees, and his possession of the land was not obtained through or under Baker and Hutcheson, or either of them, and therefore he was not required to give notice to appel-lees of his claim to the land in order for such claim by adverse possession and use to ripen into title. The facts of his adverse claim and possession for more than ten years being undisputed, I think judgment should be here rendered in his favor. The fact that appellants do not ask to have judgment rendered does not, in my opinion, authorize this court to remand a cause for a new trial, when the facts in the case are shown to be fully developed and are undisputed.


text:
    GRUNDY et al. v. GREENE.
    (No. 1981.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1918.
    Rehearing Denied Dec. 19, 1918.)
    1. Husband and Wiíe @=^273(9) — Community Debt — Wife’s Payment of Puroha.se-Money Note.
    Where notes held by defendant constituted a valid, subsisting community debt, secured by a vendor’s lien on the land, the purchaser’s surviving wife had a legal right, if necessary, to convey the land in settlement of the notes.
    2. Deeds ©fc=69 — Ignorance of Character and Contents — Rescission.
    Without culpable negligence on part of a grantor, and where the rights of innocent third parties do not intervene, one executing a deed in ignorance of its character and contents and delivering it under the impression that it was for another purpose, under certain conditions, may be relieved from its terms.
    3. Trespass to Tey Title ©=>35(2) — Plea of Not Guilty — Pboof—Latitude.
    Much latitude is allowed in suits to recover the title and possession of realty when plaintiff’s petition is in the/ ordinary form of an action of trespass to try title and is only met by a plea of not guilty.
    4. Trespass to Try Title ©=>35(2) — Invalidity of Deed — Pleading—Fraud.
    In trespass to try title met only by a plea of not guilty, either party may offer evidence by way of confession and avoidance, and, under certain conditions, may prove that a deed relied upon by his adversary is void because procured by fraud, or as the result of mistake.
    5. Trespass to Try Title ©=>47{1) — Affirmative Relief — Pleadings.
    In trespass to try title, met . only by a plea of not guilty, affirmative relief to plaintiff, because the deed relied upon by his adversary was void for fraud or mistake, will be granted in response to appropriate pleadings bringing himself within the conditions that entitle him to a rescission.
    6. Cancellation of Instruments ©=>37(4)— Deeds — Restoration of Consideration.
    When transaction out of which a conveyance results involves payment of a valuable consideration by grantee, tbe grantor cannot have the land and the money too, and if he elects to rescind and reclaim land he must restore or offer to restore what he has received from his grantee, and should by his pleading inform the court as to such facts.
    7. Tbespass to Try Title Conditions Precedent,
    Surviving wife and children, suing in trespass to try title after decedent’s notes secured by a vendor’s lien had been barred by limitations, might satisfy the debt or offer to pay it as a condition to cancellation of surviving wife’s deed to defendant, and so enable court to adjust their equities.
    8. Tbespass to Tby Title <®=»25 — Laches.
    One seeking to repudiate a contract for fraud or mistake must act promptly on discovery thereof, and where plaintiff admitted that in 1913, less than a year after her deed to defendant, she learned that he was claiming the land, a suit in trespass to try title not filed until latter part of February, 1916, justified a finding that the right of possession had been lost.
    9. Deeds <s=»17(2) — Inadequacy oe CONSIDERATION.
    Where, in payment of indebtedness of about $1,000, land was conveyed which the evidence offered by grantor tended to show was worth about $1,500, the difference between its value and the indebtedness was not so great as to require court to set aside deed for inadequacy of consideration alone.
    10. Appeal and Ereok t&=»736 — Assignment of. Ebbob — Multifabiousness.
    An assignment of error complaining of the court’s refusal to submit certain different issues was multifarious, and for that reason should be disregarded.
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Trespass to try title by Eliza Grundy and others against F. M. Greene. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellants.
    O’Neal ⅝& Allday, of Atlanta, for appellee.
   HODGES, J.

The appellants are the widow and adult children of Emanuel Grundy, who died in 1900. They instituted this suit against the appellee, Greene, to recover 169½ acres of land situated in Cass county. The pleadings of the plaintiffs were in the ordinary form of an action of trespass to try title, and the answer was simply a plea of not guilty. The proof showed that Emanuel Grundy had purchased the land many years before his death. Papers which were introduced as evidence of title showed that he had executed five promissory notes as part of the original purchase price. There was some dispute as to whether or not those notes had been satisfied prior to his death. For the purpose of defeating the prima facie title shown by the deeds to Grundy, the appellee offered in evidence a deed executed by the appellant Eliza Grundy as the surviving widow of her deceased husband, conveying the land in controversy to the appellee in consideration of the cancellation of the five purchase-money notes before referred to. This deed was dated December 18,1912, was in the ordinary form of an absolute conveyance, and properly acknowledged. The five notes were also offered in evidence, showing that they were marked canceled on the date the deed was executed. The evidence further showed that Eliza Grundy remained in possession of the premises until some time during the year 1915, when she was forcibly ejected.

The appellants endeavored to evade the force of the conveyance from Eliza Grundy to Greene, by proof that Eliza was an ignorant and illiterate negro woman; that at the time she executed the deed she did- not know its contents, and signed it under the impression that the instrument merely conveyed a right to the rents due from her tenants for the purpose of satisfying a debt claimed by Greene. They also offered evidence tending to show that there was an agreement between Emanuel Grundy prior to his death and the appellee Greene, whereby the latter accepted the conveyance of another tract, known as the Sul-phur land, in payment of the purchase-money' notes given for the land in controversy. This testimony, however, was disputed.

The court submitted the following special issues: (1) Did Emanuel Grundy owe a community debt to F. M. Greene, including the vendor’s lien notes on the land in controversy, at the date of Emanuel Grundy’s death? (2) Did Eliza Grundy execute and deliver in December, 1912, the deed conveying the land in controversy to F. M. Greene? Both of these questions were answered in the affirmative. (3) Did Eliza Grundy know at the time of the execution of that deed that it was a deed conveying the land in controversy to F. M. Greene in satisfaction of the vendor’s lion notes held by him against the land? This question the jury answered in the negative. Upon these answers the court entered up a judgment in favor of the appellee Greene. In this appeal the appellants insist that under those findings the judgment should have been in their favor.

The answers of the jury established substantially the following facts; That Emanuel Grundy died leaving unpaid the five purchase-money notes given for the land; that these notes constituted an existing community debt at the time of his death; that Eliza Grundy did execute the deed relied upon by the ap-pellee as the basis of his title; but that she did not at the time know its true nature and purpose, and did not intend to convey the land.

There being no contention that the notes were paid after the death of Emanuel Grundy and prior to the conveyance made by his widow in December, 1912, the conclusion of the jury that they were unpaid at the time of his death was, in effect, a finding that the notes were not settled in the sale of the Sul-phur tract of land at an earlier date. It follows that, when Eliza Grundy made her conveyance to Greene, the notes held by him constituted a valid and subsisting community debt secured by a lien on the land, for the payment of which she had a legal right, if necessary, to convey the land. Morse v. Nibbs, 150 S. W. 766, and cases cited; Speer’s Law of Mar. Rights, § 581.

The question then arises: Does the fact that Eliza Grundy did not know the character and contents of the instrument at the time she signed it, and that she executed and delivered it under the impression that it conveyed only rents from the premises, require the rendition of a judgment in her favor? It is well settled that in the absence of culpable negligence on the part of the grantor, and where the rights of innocent third parties have -not intervened, one who executes a deed under such circumstances may, under certain conditions, be relieved from its terms. De Perez v. Everett, 73 Tex. 431, 11 S. W. 388; Edwards v. T. & B. V. Ry. Co., 54 Tex. Civ. App. 334, 118 S. W. 572. But that relief will be granted only in response to appropriate pleadings. Much latitude is allowed in suits to recover the title and possession of real es tate when the plaintiff’s petition is in the ordinary form of an action of trespass to try title and is met with only a plea-of not guilty. In such cases either party may offer evidence by way of confession and avoidance, and may, under certain conditions, prove that a deed relied on by his adversary is void because procured by fraud or as the result of a mistake. McSween v. Yett, 60 Tex. 183, and cases cited. But the plaintiff is entitled to no affirmative relief except that sought in his petition. When, in order for him to recover the title or possession, it is necessary that he be relieved from the provisions of a conveyance valid upon its face, but conditionally voidable, there is something more involved than the mere legal right of possession. The right of recovery depends upon the right of rescission and he should by appropriate pleadings bring himself within the conditions that entitled him to have a rescission. When the transaction out of which a conveyance results involves the payment of a valuable consideration by the grantee, the grantor cannot have the land and the money too. If he elects to rescind and reclaim his land, he must restore, or offer to restore, what he has received from his grantee and has no right to retain, and should in his pleadings acquaint the court with these facts.

In this case the deed of Eliza Grundy was valid upon its face; its execution was admitted ; and it was based upon a valuable consideration, the cancellation of the purchase-money' notes. She was clearly not entitled to hold this land freed from the debt with which it was incumbered; and it devolved upon her, if she wished to avoid her deed, to satisfy the debt or to restore or offer to restore the creditor to his original status. Until she did that, her deed was binding. Chaney v. Coleman, 77 Tex. 100, 13 S. W. 850; State v. Snyder, 66 Tex. 687, 18 S. W. 106; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 509; Parks v. Knox, 61 Tex. Civ. App. 493, 130 S. W. 209; 2 Black on Res. & Can. §§ 590, 610, 626. Her claim to the right1 of having her deed canceled presented an issue which the trial court was required to determine in her favor as a condition precedent to a decree awarding her the land. Such an issue must be presented by appropriate pleadings seeking the equitable relief necessary. 5 Pome-roy, Eq. § 4; 4 Ruling Case Law, p. 518. The appellants have not in this case asked for any such relief, nor have they offered to comply with the conditions upon which .the deed should be canceled. De Perez v. Everett, supra; 6 Pomeroy, Eq. § 688.

Even if we should assume that the pleadings are sufficient to enable the court to inquire into and adjust all the equities which the parties might claim,. including the cancellation of Eliza Grundy’s deed, he had a right to deny a recovery of the land when the appellants made no pretense of an offer to do equity. At the time Eliza Grundy executed her deed, the purchase-money notes were due and were secured by a vendor’s lien upon the land. At the timé this case was tried, they had become barred by limitation, and the lien was lost. The court had no power to forcibly restore an extinct • debt and lien; but the appellants had a right to satisfy the debt or offer to pay it as a condition to the cancellation of the deed, and thus enable the court to adjust their equities. But they failed to do this, and the trial judge had a right to construe that failure as a refusal.

There is still another ground for holding that the trial court was not required to enter up a judgment in favor of the appellants. It is elementary that one who seeks to repudiate or cancel a contract for fraud or mistake must act promptly upon a discovery of the fraud or mistake. Eliza Grundy admitted that in the fall of 1913, less than a year after she signed the deed, she learned that Greene was claiming the land. In 1915 she was ejected from the premises. This suit was not filed till the latter part of February, 1916, or more than three years after the deed had been executed. That delay, and the conditions which it brought about, were sufficient to justify a finding by the court that the right of rescission had been lost. G., H. & S. A. Ry. Co. v. Cade, 100 Tex. 37, 94 S. W. 219; Crutchfield v. Stanfield, 2 Posey, Unrep. Cas. 480; 6 Pomeroy on Eq. § 687.

Appellants also insist that the court should have submitted other special issues: One, finding the amount due on the notes; another, the issue relating to the sale of a different tract of land; a third, the value of the land; and, a fourth, did Grundy and wife deed Sulphur tract of land in payment of the notes? The answers to some of these questions are involved in the answers to those submitted. Appellants offered evidence tending to show that the land was worth about $1,500 at the time of its conveyance to Greene. There was other evidence that there was something over $1,000 then due upon the notes. The difference between the value of the land and the amount of the indebtedness was not so great as to require the court to set aside the deed for inadequacy of consideration alone. However, the assignment complaining of the refusal of the court to submit those issues is multifarious, and for that reason we think. it should be disregarded.

The judgment is affirmed.
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author: SWEARINGEN, J.

text:
    SAN ANTONIO PORTLAND CEMENT CO. v. GSCHWENDER et al.
    (No. 6075.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Master and Servant @=189(7) — “Vice Principal” — Extent ox Powers.
    Foreman who had control over men working under him, and whose recommendations for employment and discharge of employes in his department were invariably made effective by the company, was a vice principal.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]
    2. Master and Servant @=149(2) — Negligence as to Inexperienced Employé.
    Employer knowing that duty of turning, on electric switch was dangerous, and that employé was ignorant of such danger, was negligent in ordering employé to turn on switch.
    3. Master and Servant @=286(39) — Death op Employé — Jury Question — Sufficiency of Testimony.
    In action for death of employé' incurred in turning on electric switch, alleged to have been caused by employer’s negligence in ordering em-ployé to turn on switch with knowledge of danger, and employe’s ignorance thereof, employer’s negligence was, under the evidence, for the jury.
    4. Master and Servant @=190(19) — Negligence ox Employer — Delegation op Duty.
    Where employer knew that certain duty was dangerous, and that employé was ignorant of such danger, it was liable for death of employé' incurred in the discharge of the duty, after being ordered to discharge duty by foreman, the negligence being that of the employer.
    5. Master and Servant @=2S1(10) — Death ox Employé — Contributory Negligence.
    In action for death of employe incurred in turning on electric switch, in compliance with order, evidence held insufficient to sustain finding that employé realized the danger.
    6. Master and Servant @=234(1) — Contributory Negligence — Comprehension ox Peril.
    An employé could not be negligent in performance of dangerous duty where he had no knowledge of the danger.
    7. Trial @=252(11) — Instructions — Evidence-Contributory Negligence.
    Refusal of instruction on contributory negligence of servant injured was not error where there was ño evidence of such negligence.
    8. Trial @=351(5) — Submission ox Issues— Issue Covered by One Previously Submitted.
    In action for death of employé refusal to submit issue of whether foreman informed em-ployé1 of danger incident to work was not error, where issue of whether employé comprehended danger had previously been submitted, such issue completely covering that refused.
    9. Master and Servant @=289(37) — Appreciation ox Danger — Jury Question.
    Testimony held sufficient to require submission to jury of whether employé killed in turning on electric switch, as ordered by his foreman, had knowledge of the danger incident to turning, of switch.
    10. Evidence @=471(8) — Conclusions ox Witness — Statement op Fact — Knowledge ox Employé.
    In action for death of employé involving question of whether employé comprehended danger of work, foreman’s testimony that employe’s “wages were never raised, because Mr. B. thought he did not have enough experience to justify it,” was the statement of a fact, and not objectionable as a conclusion.
    11. Master and Servant @=274(4) — Em-ployé’s Experience — Evidence.
    In action for death of employé involving question of whether employé realized dangerous character of work, foreman’s testimony, “Wages were never raised because Mr. B. thought he did not have enough experience to justify it,” held relevant and material.
    12. Evidence @=471(8) — Conclusion—Statement ox Facts — Knowledge ox Employé.
    In action for death of employé, involving question of whether employé comprehended dangerous character of work, foreman’s testimony that, “I am satisfied that G. [employé] did not understand dang'ers connected with handling of live wires and switches, on account of careless way in which he handled them, but he seemed to understand routine of work,” was statement of facts, and was relevant.
    13. Appeal and Error @=1060(4) — Harmless Error — Argument ox Counsel.
    In action against corporation employer for death of employé, plaintiff’s counsel’s reference to employer as a “heartless and soulless corporation,” and his reference to plaintiff, employes wife, as a “wounded dore,” and Ms statement of amount of property of corporation, did not improperly influence jury, where verdict did not indicate either passion or prejudice.
    14. Death <§=>85 — Damages—Elements.
    Surviving wife, in action for death of husband, is entitled to recover for the pecuniary loss, if any, suffered by her in husband’s death.
    15. New Trial <§=>152 — Amendment oe Motion — Discretion oe Court.
    Refusal to permit amendment to amended motion for new trial on last day of term, and after a hearing had begun' on the amended motion, was a proper exercise of court’s discretion.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Mrs. G. A. Gschwender and others against the San Antonio Portland Cement Company. Judgment for plaintiff named, and defendant appeals.
    Affirmed.
    See, also, 191 S. W. 599.
    Hertzberg, Kercheville & Thomson and Arnold, Cozby & Peyton., all of San Antonio, for appellant.
    Chambers & Watson and Ben H. Kelly, all of San Antonio, for appellees.
   SWEARINGEN, J.

This is a suit by Mrs. G. A. Gschwender, J. A. and Eliza Gschwen-der, the surviving wife, father, and mother, respectively, of G. A. Gschwender, to recover damages for his death, which, it was alleged, occurred while deceased, in the discharge of his duty as an employé of appellant, was turning a switch in obedience to an order of his foreman.

The trial was with a jury, upon special issues, and resulted in a judgment against the parents, and in favor of the surviving wife, in the sum of $10,000. The material issues made by the pleadings and the facts shown by the evidence will be stated in the discussion of the assignments.

The first error assigned is the refusal of a peremptory instruction in favor of appellant. The contention is that the evidence wholly failed to show that the employer, in any particular alleged in the plaintiffs’ pleadings, was guilty of any actionable negligence.

The issue of negligence made by the pleadings, the evidence, submitted in the special issues and found by the jury, may be substantially and fairly stated as follows: The duty of turning on the electric switch was very dangerous. This danger was unknown to the deceased. The foreman, who was the vice principal of the appellant, knew the danger, and knew that the deceased was ignorant of the danger. The vice principal, knowing the danger and knowing the deceased did not realize the danger, ordered him to turn on the switch. This was actionable negligence of the appellant, and this negligence was the proximate cause of the death of the deceased. There was direct .testimony to support the issue of negligence above stated. Mr. Gildersleeve was the vice principal, under whose control deceased worked. Mr. Gilder-sleeve’s recommendations for the employment and discharge of employés in his department, such as deceased, were invariably made effective by the company. Mr. Gildersleeve testified that the work of turning on the switch was dangerous; that he knew the danger, and that the deceased did not realize the danger. He further testified that he ordered deceased to turn on the switch, and that in obedience to that order deceased was killed by the electric current, which should have been controlled by the switch. The testimony of Mr. Gildersleeve was sufficient to require the submission of the issues to the jury.

The first assignment is overruled.

Under the second and third assignments of error the proposition is submitted that a corporation, such as appellant, is not liable for injuries resulting in death, caused by the negligence of the agents or servants of a corporation.

The negligence pleaded in this cause, and found by the jury, was probably not the negligence of an agent or servant of the corporation, but the negligence of a vice principal; Mr. Gildersleeve. Mosher Mfg. Co. v. Boyles, 62 Tex. Civ. App. 636, 132 S. W. 492, § 4. However, the act of ordering deceased to use a dangerous instrument, when the danger was not realized by deceased, but both the danger of the work and the ignorance of deceased were known to the corporation, was negligence of the company itself, as found by the jury in answer to the fifth special issue. The duty here violated, resulting in the death of deceased, was a nondelegable duty of the corporation itself. 18 R. C. L. § 207, note 16.

We overrule the second and third assignments.

The fourth assignment, submitted as a proposition,1 is that the court erred in its refusal to instruct the jury, upon request of appellant, that the burden of proof was upon plaintiffs to prove that the deceased em-ployé was not guilty of contributory negligence. It is contended that the burden was upon plaintiffs because plaintiffs’ evidence developed that there was a safe way to use the switch; that deceased knew the proper way and the danger of the improper way. The evidence is sufficient to sustain a finding that the work was dangerous, but that deceased did not realize the danger. There was no evidence of contributory negligence. - The charge was properly refused. Ry. v. Penington, 166 S. W. 464; Ry. v. Harris, 103 Tex. 422, 128 S. W. 897; Barnhart v. Railway, 107 Tex. 638, 184 S. W. 178; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; G., C. & S. F. Ry. Co. v. Melville, 87 S. W. 866; Selman v. G., C. & S. F. Ry. Co., 101 S. W. 1033.

The fourth assignment is overruled.

The fifth, sixth, seventh1, and eighth assignments assail the special instruction which the court gave in connection with the eighth special issue. The eighth question was: “Was * * * Gsehwender * * * guilty of negligence?” We believe the instruction in connection with this question merely informed the jury that, if they found the work required of deceased to he one of peril, deceased could not be guilty of negligence unless he comprehended the peril. This is a correct statement of the rule of law. 18 R. C. L. §§ 76 and 77.

We overrule the fifth, sixth, seventh, and eighth assignments.

The ninth1, tenth, and eleventh assignments complain of the refusal to instruct the jury that if the jury believed from the evidence that the deceased was guilty of contributory negligence, and that the defendant also was guilty of negligence, the negligence of both proximately contributing to cause the death, then to diminish the amount of damages found by it in proportion to th'e amount of negligence attributable to the deceased. As there was no evidence of contributory negligence, it was not error to refuse the instruction. ,

The ninth, tenth, and eleventh assignments are overruled.

The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth assignments all assail the refusal of the court to submit to the jury the following form of question: “Did Gilder-sleeve warn the deceased of the dangers incident to doing the work he was doing at the time of his death?” This issue was completely covered by the second issue given by the court, as will appear, we think, from a comparison of the forms of the issue given and refused. The rule, as stated previously, is that if the work was dangerous, and the employé did not comprehend the danger, and the company’s vice principal knew both the danger of the work and also the employS’s lack of comprehension of the danger, and instructed him to turn on the switch, then the company is guilty of actionable negligence. The form of the second issue given the jury required it to find whether or not the deceased employs comprehended the danger of using the switch. The question refused required the jury to find whether the deceased was warned of the danger.

We overrule said five assignments presenting the contention.

The seventeenth assignment contends that the submission of the second special issue was error because of a lack of evidence.

The eighteenth assignment assails the form of this second issue, contending that two issues instead of one are submitted in the one question.

The substance of that question is, Did the deceased comprehend the danger involved in the work?

Mr. Gildersleeve recommended the employment of Gsehwender, was in control of him, and had him work under his orders during the entire period of his employment. Mr. Gildersleeve testified that Gsehwender did not understand or realize the danger of the work. This testimony is not contradicted by any direct testimony. Gildersleeve’s testimony alone is sufficient to require the submission of the issue. The form of the question merely applies the question to thq issue as made by the pleading and evidence, and does not contain two distinct issues.

The seventeenth and eighteenth assignments are overruled.

Objection to the submission of the fifth special issue is made in the nineteenth assignment, for the reason expressed that the issue was not pleaded. The issue No. 5 is, "Was the order of Gildersleeve to the deceased, G. A. Gsehwender, to throw on the switch' (provided that you find he gave said order), under such circumstances (if you so find them), negligence on the part of said Gildersleeve and of the defendant?” It was alleged that Gildersleeve was the vice principal of appellant; that the deceased “was an inexperienced hand, and knew * * * nothing about the * * * dangers of electricity, * * i ⅜ as the * * * San Antonio Portland Cement Company well knew.”

After the allegations above mentioned, it was further alleged that the appellant never sufficiently warned the deceased of the dangers incident to the employment, and it was further alleged that the vice principal ordered the deceased to perform the service which required him to throw on the switch resulting in his death. These allegations are made in the third, fourth, and fifth paragraphs of the third amended petition.

The pleading was sufficient to require the submission of the fifth special issue.

We overrule the nineteenth assignment.

We also overruled the twentieth assignment, which complains of the admission of testimony against the objection th'at it was a conclusion of the witness, and was irrelevant and immaterial and prejudicial. The witness was probably the vice principal, and in control of the deceased and the department in which deceased was employed. The testimony was: “Gschwender’s wages were never raised, because Mr. Behles thought he did not have enough experience to justify it.” This testimony is the statement of a fact. By what means the witness knew the fact is not indicated or inquired into. We think the testimony is relevant and material. The statement of facts discloses, without objection, that the witness testified fully about the facts contained in the above answer.

The twentieth assignment is overruled.

The twenty-first, twenty-second, and twenty-third assignments also complain of the admission, over objection, of testimony of the witness Gildersleeve, for the reason that the testimony was a conclusion of the witness.

The testimony is:

“I am satisfied Gschwender did not understand the dangers connected with the handling of live wires and switches on account of the careless way in which he handled them, but he seemed to understand the routine of the work.”
“I am satisfied he [meaning Gschwender] didn’t know the dangers of electricity by the careless manner in which he handled machinery and exposed himself.”
“I don’t think he [meaning Gschwender] appreciated the danger of handling live wires and live switches, including the danger of touching the exposed blades of a switch.”

All of this testimony is the statement of facts known to the witness and was relevant. All of the above testimony was given by the witness at another time without objection.

The twenty-first, twenty-second, and twenty-third assignments are overruled.

In the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth assignments it is argued that the findings of the jury should have been set aside by the trial court because of inflammatory and improper argument of appellees’ counsel. The remarks were, in substance, that appellant was a “heartless and soulless corporation”; that appellee was a “wounded dove”; that appellant discharged the witness Gildersleeve after he had testified in the first trial of this suit; and that appellant’s property consisted of “hundreds of acres of land and four or five acres of buildings.” All the facts stated were testified to and appear in the evidence, except that appellee was a dove and that the corporation was heartless and soulless. It is generally admitted as common knowledge that a corporation is a person without heart or soul. We are unable to say that the jury was improperly influenced by either the metaphorical classification 'of appellee or the qualifying adjectives applied to appellant. The amount of the verdict, under the facts of this case, does not indicate either passion or prejudice.

We overrule the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth assignments.

The thirtieth and thirty-first assignments complain of the instruction given by the court in connection with the ninth special issue, which instruction substantially informed the jury that the measure of damages would be such sum of money as, if paid now, would fairly compensate plaintiff for the pecuniary loss, if any, sustained by her in the death of Gschwender. The charge correctly gives the measure of damages. S. A. & A. P. Ry. Co. v. Waller, 27 Tex. Civ. App. 47, 65 S. W. 210. If dissatisfied, the defendant should have requested a correct special charge upon th'at point. Merchants’ & Planters’ Oil Co. v. Burns, 96 Tex. 580, 74 S. W. 758.

We overrule both assignments.

Appellants contend in the thirty-second and thirty-third assignments that the trial court abused its discretion by its order overruling a motion, made by appellant to file an amendment to its amended motion for new trial. The motion overruled was brought to the attention of the court on the last day of the term and after a hearing had begun upon, the amended motion. It further appears from the bill of exception pertaining to this proceeding that one of the jurors, upon being interrogated as a witness, for the purpose of proving an allegation in the amended motion, that th'e jury had discussed, and been influenced by consideration of, attorneys’ fees, unresponsive to any question asked, made the statement that it had been, stated that the deceased ought to have had life insurance. It seems clear that the trial court discreetly exercised his power to refuse a permit to file the amendment to the amended motion.

Both the thirty-second and thirty-third assignments are overruled.

In the thirty-fifth and thirty-sixth assignments the action of the trial court in overruling the amended motion for a new trial is assailed because appellant contended the testimony of the jurors proved that the jury had been influenced to award the amount of $10,000 as damages by a discussion of attorneys’ fees that appellees might llave to pay.

We overrule both these assignments for the reason that the trial court, by its order, in effect found as the fact that the testimony was insufficient to sustain the charge of(misconduct. We think the evidence sustains that conclusion.

The judgment is affirmed.
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text:
    HAVERBEKKEN v. CORYELL COUNTY et al.
    (No. 6082.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    Injunction <®=»137(3) — Tempobaby Injunction — Propriety.
    Where a county had opened a public road through plaintiff’s land, and plaintiff had fenced along the road, and it had been used by the public for several years, a temporary injunction restraining the use of the road prior to trial of a suit of trespass to try title to the strip of land used for the road was properly refused in view of the situation of the parties and the interest of the public.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Suit by Ole O. Haverbekken. against Cor-yell County and others. Erom an order refusing to grant a temporary injunction, plaintiff appeals.
    Affirmed.
    'S. C. Padelford, of Cleburne, for appellant.
    S. P. Sadler, of Austin, and H. E. Bell, of Gatesville, for appellees.
   JENKINS, J.

Appellant instituted suit in the district court of Coryell county, in trespass to try title to a strip of land 40 feet wide, running through a tract of about 940 acres, alleged to be owned by him.

The gist of appellant’s complaint is that Coryell county and Bosque county undertook to lay out a public road across his said tract of land, a portion of which lies in Coryell and a portion in Bosque county; that such proceedings were null and void, notwithstanding which said, counties, claiming said strip to be a public road, forcibly entered upon the same and are using it for that purpose; that appellant, in order to protect his farm and pasture lands from depredation,. has been compelled to build a fence on each side of said strip for the entire length thereof.

The pretended condemnation proceedings are alleged to have begun in 1914, and it appears from plaintiff’s petition that the strip of land now is, and for some years has been, used as a public road, and that appellant has protected his'land from depredation of stock by building the fences above referred to.

The district court of Coryell county will meet in January, and it does not appear that appellant in the meantime will suffer any injury beyond that which' he is now suffering and has suffered for several years. We presume that it was for this reason that the district judge refused to grant the temporary injunction prayed for. In fact, we do not see what benefit will accrue to appellant from granting him a temporary injunction. It is not Coryell or Bosque county that is using his land, but the public. What appellant is seeking by his suit of trespass to try title is to have the alleged condemnation proceedings declared void, in which event he can close the road across his land. That is the issue which he is seeking to have this court try in this injunction proceedings. It will be time enough for us to pass on this issue when it is brought here on appeal from a judgment of the district court.

Believing, as we do, that the district judge did not abuse his discretion in refusing the temporary injunction prayed for, and that appellant has suffered no substantial injury by such refusal, the action of the district judge in refusing such temporary injunction is sustained.

Affirmed.

On Motion for Rehearing.

In our opinion herein we did not mean to say, as is suggested by appellant in his motion for rehearing, that he should be denied relief because his injuries are of long standing, nor that he is not entitled to an injunction against the county because it is the public, and not the county in its corporate capacity, which is trespassing on his land.

If trespass is being committed by the use of his land as a public road, his proper remedy is that which he seeks herein, viz., by suit against the county to have the orders opening a road through his land declared void.

What we meant to say, and what we do say, is that, as appellant’s petition shows that the land in controversy has long been used as a public road, it does not appear that any serious and irreparable injury will be done him by its continuous use as such road until the case can be tried in the district court, at which time, if the evidence establishes the truth of his allegations, it must be presumed the district court will grant him adequate relief. Should it fail to do so, he has the right of appeal, and. we would then be able to pass on the case on its merits. Also we meant to say; and do say, that as it appears that the land in controversy is, and for a long time has been, used as a public road, the public interest ought to be considered, and the road ought not to be closed until the ease is tried on its merits, and appellant has shown himself entitled to such-relief, unless there was an emergency for such action.

If the appellees should by dilatory tactics deny appellant a trial upon the merits at the January term of the district court, we will, upon application showing such facts, grant appellant leave to file a second motion for a rehearing herein.

Motion overruled.
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