author: BROOKE, J.

text:
    JONES et al. v. KEITH LUMBER CO. et al.
    (No. 210.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 21, 1917.
    Rehearing Denied June 6, 1917.)
    Advekse Possession <S=oll5(5) — Question for Jury.
    A witness’ testimony that he had lived on land claimed by adverse possession for 12 years under an arrangement with claimant’s predecessor in title to evict squatters, etc., the arrangement being first verbal and evidenced by a written lease for the last six years, held not to establish title by adverse possession as a matter of law.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 696, 697, 699, 70u.]
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Trespass to try title by L. L. Jones and others against the Keith Lumber Company and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    W. D. Gordon, Thos. J. Baten, and H. M. Whitaker, all of Beaumont, for appellants. Parker & Ivennerly, of Houston, and Sonfield, King & Sonfield, G. D. Anderson, and R. E. Masterson, all of Beaumont, for appellees.
   BROOKE, J.

This is a suit in trespass, to try title, brought by the appellants, as plaintiffs below, against the Keith Lumber Company, Maryland Trust Company, Houston Oil Company of Texas, and Kirby Lumber Company, as defendants, for the recovery of an interest in the Elisha Duncan league of land in Hardin county. Excepting the west 1,000 acres, which was claimed by the Houston Oil Company, and its eodefendants, the land claimed by the Keith Lumber Company had been sold to it by the Creighton-McShane Oil Company, a foreign corporation, and John A. McShane and others, under deeds of general warranty, and the record shows that the Keith Lumber Company, in the event of a recovery by the plaintiffs below, was entitled to recover for the quantity of land which it might lose in the litigation, upon its warranty. It accordingly brought in its warrantors, and these warrantors, through counsel, undertook the defense of the litigation. The Houston Oil Company, through its counsel, presented its defenses as to the claim asserted by it and its coclaimants to the west 1,000 acres of the league. The usual pleas of the statutes of limitation following the general issues and plea of not guilty were made by the defendants below. By supplemental petition, the plaintiffs pleaded the forgery of certain deeds, under which the defendant deraigued title to the land, outside of the common source of title under which all parties, plaintiffs and defendants, claimed the survey of land. Eliza McClusky et al., interveners in the suit, claimed the 160 acres of land by limitation. On the trial of the case, by agreement of all parties, judgment was rendered in favor of the in-terveners, McClusky et al., for 80 acres of land, and no one is now complaining of the judgment to that effect. The trial court instructed the jury to find for the defendants, against the plaintiffs, which being done, judgment was rendered accordingly that plaintiffs take nothing and that defendants recover of plaintiffs on their cross-actions. Plaintiffs, in fact, only asserted title to an undivided interest of 1,153 acres in the league. Motion for a new trial was duly made by plaintiffs, which being overruled, exception was duly taken, and this appeal is prosecuted from the aforesaid judgment.

Wfe will not undertake to discuss the various assignments of error, inasmuch as the judgment must, in our opinion, be set aside, and a new trial granted, upon the question raised in appellants’ sixth assignment of error. The said sixth assignment of error is as follows:

“The court erred in holding as matter of law that tlie possession of Ben Clark constituted a title by limitation to all of the land in controversy, except the west 1,000 acres, in the defendants, as will more fully appear from bill of exceptions taken to such holding.”

There are two propositions presented under this assignment. The first is:

“Ben Clark, through whom adverse posession of 3,428 acres of the land in suit is claimed on behalf of the Creighton-MeShane Oil Company, did not become the tenant of the said appellee until they entered into a contract of tenancy with him on, to wit, 28th day of May, 1910, loss than five years before the institution of this suit. Prior thereto, there was no contract or agreement between the said parties which would create the relation of landlord and tenant, nor any privity whatsoever between them.”

Without entering into a detailed discussion of this proposition, we will discuss the second proposition, which is as follows:

“The burden of proving adverse possession rests upon the party alleging it, and such possession so as to give a limitation title cannot b'e made out by inference only, but by clear and positive proof.”

Under this, which is a sound legal proposition, it is the opinion of this court that the appellants were entitled to go to the jury, and that the court erred in holding that limitation obtained in this case as a matter of law. The testimony with reference to this limitation is as follows:

Ben Clark testified:

“I have lived on the Elisha Duncan league of land in Hardin county, and I now live on that league of land. I first became acquainted with the Elisha Duncan league of land in Hardin county in 1904. * * * It was in October of 1904, The way I first came to the Elisha Duncan league of land was I came there in a house boat. When I came there, I first tied my house boat onto the bank there. It was tied to the Elisha Duncan league. I moved that house and put it on the land. When I did that, it was the following year 1905. I will now tell you by what arrangements I moved my house boat onto the Duncan league. I had a conversation with Mr. Lobe Carlton. I asked him to try to get that place for me, as I wanted to live on it, and he told me that it would be all right for me to put my boat on the land. Mr. Lobe Carlton was to see the Creighton-MeShane people with reference to my going on the land. He told me he had made arrangements for me to go upon the land. * * * I went on the land for the benefit of the Creighton-MeShane Company. You ask me what really was the terms of my tenancy on that land, and I say it was with Mr. Carlton. I was supposed to look after the timber and see that nobody got on the land, was my understanding. * * * I had no conversation with anybody but Mr. Carlton about it. * * * What was I to do on that land for the Creighton-MeShane people, was, I was supposed to look after the timber was my understanding, and keep anybody from squatting on the land; that was my understanding. I did do that. The improvements that I put upon the place, upon the Elisha Duncan league, was, I put up my house there and put up my garden. * * * I started the garden in 1904 in the fall, shortly after I landed there with the boat. My garden was fenced up, a fence around it. I built a house there. The way I built it was, I built a house, dining room, and kitchen, an addition to the house boat. As near as I can remember, when I did that was, I think, about 1906. I used the other portion of the land. You ask me when and how much, and I say, why, two years ago, I think, I had a hog pasture there, made an addition to. the garden, put up another little garden. I judge my hog pasture tó be between three and four acres, something like that. I have not been living anywhere besides the Duncan league during that time since I first lived there. Since the year 1904 I have lived where I am right now. * * * You ask me how long I have ever been absent from the place at one time, and I say that was last fall when I was sick'. I think they kept me downtown 16 days, I mean by ‘downtown’ at Beaumont for 16 days. That is the longest period of absence since I first moved there. You ask me when I moved the house boat onto the Duncan league, how did I put the house on the land, and I say that I taken it out of the water and right upon the land, I put a foundation under it. I think the foundation is about four feet high. It is a wooden foundation. »_ * * Subsequently after going on the land I entered into a lease contract with the Creighton-MeShane people. You have handed me an instrument to examine, and I see that my signature is signed to it. That is my signature there. This is the lease contract I executed on the 20th day of May, 1910. It is between the Creighton-MeShane Company and the Miller-Vidor Lumber Company and Ben Clark. When I first went on the land, there was something said with reference to a lease. * * * Mr. Carlton told me that he would get a lease for me.”

The lease introduced in evidence was as follows:

• “This agreement and lease contract, made and entered into on this the 28th day of May, 1910, by and between Creighton-MeShane Oil Co. of Douglas county, Nebraska, and the Miller Vidor Lumber Company, a corporation organized under the laws of the state of Texas, parties of the first part, and Ben Clark, of Hardin county, Texas, party of the second part, witnesseth: That in consideration of the sum of ten ($10.00) dollars and other considerations to them in hand paid by party of the second part, and in the further consideration hereinafter mentioned, the parties of the first part have this day lot and leased, and by these presents do let and lease unto party of the second part the following described lands and premises, to wit: (Here description by metes and bounds of Elisha Duncan survey is omitted.)
“The party of the second part agrees to remain in actual.possession of said land and premises under this lease until notified by parties of the first part to surrender said possession to them, their heirs or assigns, and to use his best efforts and energy to protect said land, and especially the growing timber thereon from trespass and from all manner of injury and depredation of any kind and character, and to report any and all acts of trespass at once upon the discovery thereof to parties of the first part. And he binds himself to refrain from cutting or removing any of the timber standing and growing upon said land and to hold said land and premises for the use and benefit of parties of the first part, according to their respective interests therein. Said Miller & Vidor Lumber Co. having a certain interest in the cypress and gum timber on said land.
“Party of the second part agrees to remain in continuous possession of all the land above described until notified to surrender possession. It is hereby agreed that any improvements heretofore erected or that may hereafter be erected upon the said land by the party of the second part shall remain the property of the second part, and he shall have the right to remove the same upon the termination of this lease. And it is further agreed and understood that the possession of the said described land, which has heretofore been had by party of the seconu part has been as the tenant and by permission of parties of the first part.
“Witness our hands in duplicate originals, on this the 28th day of May, 1910. Creighton-McShane Oil Co., by John A. McShane, Prest. Miller & Vidor Lumber Co., by E. H. Oreen, Jr., Parties of the Eirst Part. Ben Clark, Party of the Second Part.” office of the county clerk of Hardin county bn September 8, 1910, recorded September 12, 1910, in Volume 55, p. 135, Deed Records of Hardin County.

This deed was duly acknowledged by all parties thereto, and filed for record in the

Ben Clark further testified:

“Mr. Lobe Carlton had that contract prepared for me. I heard the lease contract read by you to the jury. You ask me what were the terms upon which I originally went upon the land, and I say the terms were for me to look after the land for them and try to keep anybody from squatting on there and to notify them. * * * I built that house boat at Port Arthur in 1903, and I got a tug to bring me up the river. * * * I left Port Arthur, it was supposed to be the equinox storm, that was supposed to come there the 21st of September, and I had a tug to tow me up so as not to be in the storm. When I stopped, I stopped two days just below Mr. Fletcher’s farm on the west side of the river, which I judge to be about eight miles probably from this land. * * * In October, 1904, I tied up on the bank on this Duncan league; that is right. As to whether I just simply threw a cable and wrapped it around a tree and anchored my boat, well, I tied it there to the bank. I continued to live in the boat. I am still living in the boat. I am pursuing the occupation of a fisherman, and that is supposed to be my business. That is what I have been doing since I have been there, fishing, not much hunting, but fishing. I fish in the river. * * * It is the river on the Duncan league. I stand on the Duncan league and fish in the river. I am on the Duncan tract and fish in the Neches river. I fish for a living, and when I get fish I sell them and buy such supplies as I need. Now, as to whether ‘I continued to hang to that tree on the Duncan league .in that house boat until 1905 when I pulled it out on the bank,’ well, I pulled it out in 1905. Yes, sir, in the fall of the year of 1905. There was not some high water there at that time, but it was very low water, unusually low stage of water at that time, I did not just get hold of the rope and take a strain on it and yank her right out. The way I got her out, was, I hired two men to help me pull her out. We used a windlass, blocks, and fall, and pulled her out. I pulled her out on the Duncan league. Up to that time I had said something to Mr. Carlton. When I got there in October, why, I had been there but a short time, probably the latter part of October or along in November some time, Mr. Carlton came up there on a fishing trip. That is not when I got acquainted with him, but I knew him in Beaumont before, and I made the suggestion to him that I would like to live there and like to get a lease.
“You ask me the question, ‘for the purpose of fishing, I wanted to live there so I could fish,’ and I say that I did not state that to him. As to whether that was my purpose and only purpose, well, I wanted to make me a home; that is what I wanted. As to whether I wanted a place to pull my boat out on the land and live in while I fished, well, not while I fished, I expected to stay there all the time, I expected to make my home there. My business was fishing. Now as to whether that is what I wanted a home for to shelter me while a fished, that is, during the time I was pursuing the occupation, why I do not know as I wanted it for that especial purpose. I wanted a home to live there, whether I fished or not. I was cultivating some land. As to whether it was other than a few rows of vegetables that I had planted, well, I had some planted. That is all the farming I did, was to raise some vegetables to eat. It was just a garden to raise my vegetables to eat while I was there. You ask me what time was it in 1905 that Mr. Carlton was up there with me and I broached this subject to him, and I say it was in 1904 when I spoke to Mr. Carlton. Before I had my boat out of the river, I had already made arrangements with Mr. Carlton. When I made the arrangements I did not think it would be in shape to do so until I seen somebody. The next fall I did pull it out. I will now describe that boat to you. It was 12 feet wide and 32 feet long and an 8-foot high house on it from the floor. With reference to how big the ‘house was on the boat, well, it was just one room 22 feet long, a 5-foot gallery on each end. The room is 22 feet long. That is, I just left each end of the boat for a gallery, put a 22-foot room on it, I boxed that width up for the walls of my cabin 12 feet wide and 8 feet high. I pulled that out there in the fall of 1905 and got some men to help me jack it up and put blocks under it, and it has been there ever since. As to whether I said in 1906 I built a little shed on there or kitchen or something, well, I am not very clear whether it was 1907 or 1906 or 1905, but one or the other of the years. I am not positive about that. There is some more improvements out there. I had my garden there. Now, as to how big a garden I had there when I pulled that boat out on the bank, well, I should judge it to be not quite half an acre, somewhere near that. I never measured it, but I judge it would be about half an acre. * * * I fenced it with pickets, made the pickets myself. I have planted a little truck there every year since then. With reference to how big my garden is this year, well, I made an addition to that; that was my first garden we are speaking of now. I made another garden right at the house. It is just about twice as large as the other one I first put there. The other garden is there yet, I suppose. I cultivate it also now. I have got two gardens.
“Now with reference to the length of time I have had two gardens there, the first one I started in 1904, cleared off the land during the fall before I got my boat out, and this lower garden, by the house down here, I put in the same year, when I pulled the boat out. That is, I cleared up all that some time the fall of 1905. I judge it to be about twice as much as the other garden up there. There might be as much as an acre, and it might not be that much. * * * As to whether outside of my garden and my boathouse there was any other improvements until a couple of years ago I built my hog pasture, well, I have got my chicken house and my garden, and I got a toolhouse there. There is the chicken house and a garden and my hog pasture, and I also got another little house pulled out upon the land where I first came out. It is a fact that when I first went up there I took my boathouse up Village creek some distance from the mouth of Village creek. As to whether that is where I anchored it, well, I should judge it is probably about 300 feet from the mouth of Village creek up the creek. Now, with reference to whether the creek is a large stream there at that point, well, I guess it is very near 100 feet wide. Some years it is 2 or 3 feet wide. This year we have not got as much water. I did not pull my boat out some 300 feet up Village creek from the mouth of Village creek, but I afterwards came back down the creek and pulled the boat out of the river. As to whether how far below the mouth of the creek, well, right at the mouth, right where the mouth comes into the river. That was not because there is generally a pretty good fishing at the mouth, and that is not the reason I did that, Fishing is not so good there as it is further up the creek. I did not cultivate any land except to raise a few vegetables for my own use, that’s all. As to whether I did not cut any timber or put the land to any other use except to live' there and fish in the river, well, all the timber I ever cut there was to use on the place to fence it up and build my little improvements. As to whether I did not use the land for any other purpose than to stay there and fish, well, I do not know whether it was just simply to fish there; I intended to live there and make my home there. I did not use the land for any other purpose.
“As to whether it is a fact that until 1910 when I signed this paper that I never had any dealings of any kind or character whatever with anybody concerning that land except my conversation with Mr. L. A. Carlton, why during that time I generally made a trip to town once or twice a month, sometimes once or twice a week, and I generally made it a point.to go to the office and see Mr. Carlton about it, see if he got things straightened up for mo. It is not a fact that he is the only man that X had any dealings with about the staying on that land until Í signed this paper in 1910. Mr. Sonfield came up there before the lease was ever made out and looked over the land and seen what I had there and told me to get a lease. That was before I signed this lease, I am sure of that. I would not know how long before it was, I could not state what year that was now, but that was before the lease was signed. The lease is signed in 1910, and this is 1916. * * * X have no recollection as to how long it was before the year 1910 when I signed this lease when Mr. Sonfield came up there ; it was some time during the year before the lease was signed. * * * This lease was procured by Mr. Carlton ultimately for me to sign. Now as to whether up to that time and aside from Mr. Sonfield coming up there about that time it is true I never had any dealings with the Creighton-McShane Oil Company or John A. MeShane or' anybody purporting to represent him, well personally X do not know Mr. MeShane. I had not met the man but the conversation I had with Mr. Carlton was about a month after I first landed there. * * * As to whether I said awhile ago as you understand it that until I got this lease I kept after Mr. Carlton about it about getting me the lease on the land, as to whether that is correct, and if I testified to that, well, Mr. Carlton promised me he would get tne lease for me, so every time when I went to town I would make it a point to go up to the office to see if Mr. Carlton had got the lease. Finally, he got the lease, which I signed, I suppose so. I myself had nothing to do with the agents or representatives of the Creighton-McShane Oil Company, but only with Mr. Carlton up to the time I went on this land.
“Before the lease was got out, Mr. Carlton brought Mr. Sonfield up there and introduced him to me, and Mr. Sonfield looked over the land, I do not know, but probably about two months after that the lease was signed. Mr. Sonfield did not toll me that they wore trying to get a limitation title on this land, and wanted me to stay there and help them get it. There was no limitation mentioned to me, but I was supposed to look after the timber and see that no squatters was on it, but they mentioned no limitation business to me. They did not mention that they were trying to get somebody’s title by limitation through me as a tenant, and that was not my understanding about it. All I was to do was to see that nobody cut that timber and that nobody squatter on the land. * * * As to whether I mean to state ‘squatted on the land,’ well the way I understood it was if anybody came there and built a house or something I was to go and tell them that they were on the land and I was looking after it. * * * I was to look after the whole tract. I do not think there was any limitation on it or any amount of land, or anything like that. I did not get a deed to some of that land there from them, nor did I get a document from them specifying certain portions of that land where I live. I did not get a lifetime lease from the MeShane people. I got that lease, but not from the MeShane people. I made a new lease with Mr. Keith two years ago, probably three years ago; 1914, I think. I made a lease with Mr. Frank Keith.
“You ask me if I did not tell those gentlemen, who visited me out there with the kodak that in Mr. Townes & Carlton’s office in Beaumont was a paper belonging to me giving me a lifetime lease on certain portions of that land, and I say not certain portions, I got a lifetime, "that wasn’t no lease, there is no lease about it, it is simply a lifetime permission while I live to live over there given me by Mr. Frank Keith, not by the MeShane people. It does not mention the number of acres at all. You ask me ‘if I had any arrangements with anybody to stay there between the time that the Oreighton-Mc-Shane Company sold to Mr. Frank ICeith and the date Mr. Frank ICeith or the ICeith Lumber Company made this lease to me on the 20th day of February, 1912,’ and I say, why, I do not really know that the land was sold to Frank Keith until Mr. ICeith brought this lease up to me to sign, then he told me he had bought it from Mr. MeShane. He wanted me to sign this lease, which I did. As to whether I said I had a lifetime lease with Mr. ICeith, but I had no other- lease than this, well, I did not say that I had a lifetime lease. I beg your pardon, I said I had a letter from Mr. ICeith giving me permission to stay there as long as I lived; that it was up in the office and not a lease. * * * During this time from 1904 when I moved my boat onto the land up to the time I got this written lease, got a written lease, my understanding was that I was holding that property as the tenant of the Creighton-McShane Oil Company; that was my understanding with Mr. Carlton. Now, as to what 1 was doing, if anything, towards carrying out my part and my understanding of the lease, well, Mr. Carlton told me to watch over the land and to look out for anybody cutting timber on the land and see that no timber was being cut on it. I did that. Now, as to who got the lease for me, well, T think Mr. Carlton fetched it up one trip coming up there.”

We have set out the greater part of the testimony of this witness, and to our minds, as before said, the testimony does not go to that extent in which the court was warranted in saying that as matter of law the limitation claim had been made out and perfected. We have gone into this matter of limitation quite extensively, for the reason that, perhaps, the other objections raised in appellants’ brief may not occur in another trial of the case, and, taking that view, we shall not discuss either of the assignments, save and except the assignment which relates to this question and leads us to believe that the error of the court in withholding the testimony from the jury with reference to limitation is such that it is necessary to reverse and remand the cause for a new trial.

Believing, as| we do, that the court erred in holding as a matter of law that the possession of Ben Clark constituted a title by limitation to all of the land in controversy, except the west 1,000 acres of defendant, we hold that for this reason this cause must be reversed, and the case remanded for a new trial.
      <6zs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    GENERAL BONDING & CASUALTY INS. CO. v. HILL et al.
    (No. 7772.)
    (Court of Civil Appeals of Texas. Dallas.
    May 19, 1917.
    Rehearing Denied June 16, 1917.)
    1. Peincipal and Stjbett <g=»82(l) — Building CONTEACTS — CoNTEACTOE’S BONDS. .
    Where a surety executed a bond that the contractor should faithfully perform, his contract, and he abandoned it before completing the building, whereupon the owner completed the building at extra cost, having complied with the contract upon his part, he was entitled to judgment on the bond.
    [Ed. Note — For other cases, see Principal and Surety, Cent. Dig. § 127.]
    2. Peincipal and Subety <@==>117— Contbac-tob’s Bonds — Dischaege on? Subety.
    Where a surety executed a bond for a contract conditioned on faithful performance of his contract, and the contractor had earned $700, for which he had given an assignment to a lumber company furnishing materials, all of which had gone into the building, and the owner accepted the assignment, the amount was rightfully paid; it not being more than was due at the time.
    [Ed; Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 283-285.]
    3. Husband and Wipe <@=>238(3) — Judgment —Fobm.
    In a suit involving the homestead of a husband and wife, though the wife was not necessary party, a judgment in her favor as well as her husband was proper.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § S55.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by J. W. Ogburn and another, trading as the Ogburn Gravel Company, against B. C. Hill and others, wherein defendants made the General Bonding & Casualty Insurance Company a party and sought judgment. Judgment for defendant Hill, and the insurance company appeals.
    Affirmed.
    T. L. Camp and Walter M. Nold, both of Dallas, for appellant. J. Hart Willis and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   RAINEY, C. J.

We adopt the statement taken from appellant’s brief, which is as follows:

“This suit was originally filed on the 28th day of January, A. D. 1914, by J. W. Ogburn and Paul P. Cooper, trading as the Ogburn Gravel Company, against B. C. Hill, Pearl Hill, and M. L. Greer, to recover an alleged indebtedness aggregating the principal sum of $135.12, and for foreclosure of mechanic’s and matetfialman’s liens upon certain real estate alleged to be the property of B. C. Hill and wife, Pearl Hill. The defendants B. C. Hill and wife, Pearl Hill, made the General Bonding & Casualty Insurance Company, a corporation, a party to the suit and sought to recover a judgment .for any amount in which judgment might be rendered against them, and also sought to recover judgment against said company for various items of indebtedness in the total amount of $343, which defendant B. C. Hill averred that he was obligated to pay in the finishing of a certain residence which the defendant M. L. Greer had contracted to build for‘him, and alleging that the defendant General Bonding & Casualty Insurance Company had executed, as surety, a bond for the defendant M. L. Greer in the penal sum of $1,500, conditioned for the performance of the building contract by M. L. Greer. The defendant General Bonding & Casualty Insurance Company denied the material allegations in the plea of B. C. Hill and wife, and specially answered, among other things, that the defendant B. O. Hill departed from the terms of the contract and bond, in that he paid and ordered paid moneys to the contractor and persons furnishing material for the building in a manner different from that contemplated by the contract and bond, and assumed a. personal liability for the payment for material to the extent of approximately $700, and that, but for his wrongful conduct, no loss to him would have accrued or occurred, and that the building would have been finished according to the plans and specifications and within the contract price to him. The case was tried on the 28th day of March, 1916, before the court without a jury, and judgment was rendered that the Ogburn Gravel Company take nothing by their suit; that the defendants B. C. Hill and Pearl Hill have judgment against the General Bonding & Casualty Insurance Company in the sum of $323.50, together with interest thereon from January 14, 1916, at the rate, of 6 per cent, per annum, and for all costs of suit. The defendant General Bonding & Casualty Insurance Company duly filed its motion for new trial on March 29, 1916, and thereafter duly filed its amended motion for a new trial, which was in all things overruled by the court on April 28, 1916, and defendant General Bonding & Casualty Insurance Company on April 27, 1916, filed its motion for findings of facts and conclusions of law, which findings and conclusions were filed on May 18, 1916, to each and all of which findings of facts and conclusions of law the said defendant General Bonding & Casualty Insurance Company duly excepted, and on May 13, 1916, said defendant duly filed supersedeas bond, and has filed a statement of facts, bringing the case before this court for review.”

Conclusions of Fact.

We conclude -that the court’s findings of facts are supported by the evidence, and adopt the same, as follows:

“That on April 22, 1913, M. L. Greer, first party, entered into a contract with B. C. Hill, and his wife, Pearl Hill, second parties, to construct for them a house; the total cost for the work or material to complete said building to be the sum of $3,000.
“That, upon the execution of the contract, a bond was furnished by General-Bonding & Casualty Insurance Company to indemnify the owner against the acts of M. L. Greer, contractor; said bond being in the sum. of $1,500. A copy of said contract and bond are attached hereto.
“That R. E. Gahagan is shown in the contract, not as a signor thereof, nor as a party thereto, save and except that he was to furnish the $3,000 to B. C. Hill necessary to complete the building. There is no provision as to method of payment by the owner, B. C. Hill; the only provision being that B. C. Hill shall pay the contractor the sum' of $3,000. ■
“That work progressed under the contract un■til July 5, 1913, when M. L. Greer, the contractor, abandoned the job, and refused to go on with the same. I find that all the provisions of the contract and bond relative to the notice to the surety of the breach, and request that the surety proceed with the construction of the building, were complied with.
“I find that, at the beginning of the construction of the building, M. L. Greer; the contractor, assigned by written assignment to Burton Lumber Company of Dallas $700, to be paid out of moneys becoming due to Mm under the building contract with. B. O. Hill, and I find that under the terms of the contract and bond he had a legal right to make such an assignment. I find that, at the date of the abandonment of the contract, all the lumber used in the building had been worked into the building, but that the Burton Humber Company had been paid nothing on its assignment; that it had furnished more than $700 worth of lumber; that the indebtedness to the Burton Lumber Company had been due long prior to the default of the contractor; that there had become due to the contractor in excess of $700; and that $700 of the indebtedness to the contractor had been retained by B. C. Hill to meet the assignment of the Burton Lumber Company.
“I further find that payments on weekly estimates were made in conformity with the contract and bond; that at no time was more paid on weekly estimates than 75 per cent, of the work done.
“I find that there was no limitation on the owner or Gahagan requiring any portion of the contract of the $3,000 to be retained, nor was there any limitation or provision that the 75 per cent, limitation should not exceed $3,000. I find that, on the breach of the contract and abandonment of the woi’k by the contractor, B. C. Hill paid to the Burton Lumber Company $700, which had long been due on its assignment of May 1st, and which had been held by B. C. Hill subject to the lumber company’s order on its assignment of May 1st. X find that, at the date of the abandonment of the contract by the contractor, B. C. Hill had of the contract price remaining $1,200, $700 of which was the property of and was due Burton Lumber Company by virtue of its assignment of date May 1st; that he had only $500 of funds with which to complete the building which had been abandoned.
“I find that, at the time of the giving of the notice of lien by the Ogburn Gravel Company, B. O. Hill had no funds owing to the contractor, M. L. Greer, in his possession, save the $500 as above stated; and I find that no funds were paid out on indebtedness of the contractor after his abandonment of the job.
“I find that, in addition to the $500 on hand with B. C. Hill, it was necessary for said Hill to pay out an additional sum to complete the building of $323.50. I find that the building was completed according to the plans and specifications, and that no changes in construction were made therein.
“I find that B. C. Hill paid the $700 to the Burton Lumber Company on its assignment dated May 1, 1913, after the receipt of the notice of materialman’s lien furnished by Ogburn Gravel Company; said notice or notices being given on July 24, and August 16, 1913. And I find that the said $700 paid to Burton Lumber Company had been long since past due, and had been held by B. C. Hill under the assignment of May 1st, and that the bonding company and the Ogburn Gravel Company suffered no loss by the payment of said $700, since there was no violation of any of the terms of the contract as to method of payment on weekly estimates, and said $700 was the property of Burton Lumber Company and not subject to any debts of the contractor. * * *
“I find no breach of any of the provisions of the bond and contract on behalf of B. C. Hill, and I find that he actually expended the sum of $323.50 in the completion of his building, for which the bonding company is liable to him.”

Opinion.

The assignment of error is:

“Said judgment is contrary to the law and the •evidence, in that the evidence conclusively shows that by the terms of the bond herein sued Upon any change or departure from the terms or provisions of the bond or contract, whether material or immaterial, made without the written consent of the surety, shall relieve the surety from any liability under said bond, and that by the building contract in question B. C. Hill became bound to pay to the contractor weekly amounts equal to 75 per cent, of the work done in accordance with estimates of the architect, but that said B. O. Hill departed from and violated 'his obligation in said contract, in that he assumed responsibility for and paid to the Burton Lumber Corporation, a furnisher of material, approximately the sum of $700, and accepted an assignment by the contractor for that amount after the contractor had previously assigned all of his interest in the contract to one R. E. Gahagan with the knowledge and consent of said B. C. Hill, without regard to any estimate of the architect and without the written or other consent of the surety on said bond, this defendant herein.”

The bond executed by appellant being that the contractor should faithfully perform the contract with appellee, which contract was abandoned by Greer before the building was completed, and appellee having been compelled to complete it at extra cost, and the appellee having complied with all the terms of the contract, as found by the court, and supported by the evidence, judgment was properly rendered against the appellant.

Appellee Hill having accepted the assignment to the Burton Lumber Company long before Greer abandoned the contract, and after the lumber had been used in the building, and at a time when there was due Greer on the building the $700, it must be considered to have been paid at the date of said assignment, and at the time of the payment of said amount Hill had not paid on said building more than he was bound to pay under the contract. Therefore we conclude that the $700 was rightfully paid by Hill.

The estimates of not over 75 per cent, were for the benefit of Gahagan, and in no way affected Hill.

Appellant complains of the court for rendering judgment in favor of Mrs. Pearl Hill. Mrs. Plill was the wife of B. C. Hill. The building was the homestead of her and her husband, and she is vitally interested in the controversy, although she was not a necessary party, and, she being a party, it is immaterial, as the appellant will only have to pay the judgment once, and that to B. C. Hill, so this complaint is without merit.

Complaint is made that the cost incurred by the Ogburn Gravel Company is adjudged against the appellant. The cost incurred by the Ogburn Gravel Company is small, and we will presume there was good reason for the court so finding in the absence of a showing otherwise. In answer to this complaint, the Ogburn Gravel Company have filed a statement to the effect that upon the trial of the case it had no interest in the prosecution of the case, that it was agreed between all the parties in open court that it would withdraw from the suit, and the cause be submitted to the court as between the other parties in consideration that no cost be assessed against it, and in accordance with this understanding no judgment for costs was rendered against it.

While there is nothing in the record showing this understanding, it at least strengthens our presumption that the court rightly adjudged the costs as it did.

The judgment is affirmed.
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author: DAVIS, J.

text:
    LYON-TAYLOR CO. v. JOHNSON.
    (No. 166.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 30, 1917.
    Rehearing Denied June 13, 1917.)
    1. Judgment <®=3461(2) — Setting Aside — Fbaud — Admissibility of Evidence.
    In action to set aside a purchase price judgment, evidence that goods shipped by seller to other parties were not as represented is inadmissible, especially where there was no proof that the goods shipped to the judgment debtor were not as represented.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 893.]
    2. Judgment <§»564(1) — Res Judicata — Final Judgment.
    In action to set aside a purchase price judgment because of fraud, ote., a previous judgment merely setting aside the purchase price judgment is not a final judgment precluding the seller from denying the alleged fraud.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1015, 1017.]
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Action by John S. Johnson against the Lyon-Taylor Company. Judgment for plaintiff, and. defendant appeals.
    Reversed and rendered.
    See, also, 147 S. W. 605.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. E. E. Easterling, of Beaumont, for appellee.
   DAVIS, J.

September 13, 1905, the Lyon-Taylor Company filed suit against John S. Johnson in the county court of Jefferson county, Tex., in cause numbered 1514, upon a written contract between plaintiff and defendant, under the terms of which, as alleged, the defendant, Johnson, ordered to be delivered to him f. o. b. transportation company an assortment of jewelry of the value of $3S0, and also to recover interest. The defendant, Johnson, specially answered that it was understood between the agent of the Lyon-Taylor Company and himself that said goods were to be delivered f. o. b. transportation company at Beaumont, Tex., and that said contract had been altered since he signed it, and, further, that plaintiff agreed to pay the freight charges.

The case was tried March 13, 1907, and resulted in a judgment in favor of the plaintiff, Lyon-Taylor Company, for the sum sued for with interest, and from this judgment the defendant, Johnson, appealed to the Court of Civil Appeals at Galveston, and the judgment of the lower court was there affirmed on June 18, 1908; and on November 2, 1908, John S. Johnson filed a suit or bill of review in the county court of Jefferson county against the Lyon-Taylor Company, in cause No. 2086, in which he sought to set aside the judgment rendered against h'im in cause No. 1514, because of fraud upon the part of the Lyon-Taylor Company, and alleged, in substance, that the plaintiff, Johnson, ordered the jewelry, the subject-matter in the original suit, by samples, and that at the time of giving the order he was induced by the defendant, the Lyon-Taylor Company, to believe that the jewelry so ordered by him would in every way come up to and equal in quality and kind the samples exhibited to him by defendant at the time of his giving the order to defendant; that the jewelry shipped was not according to or in any way equal to the samples exhibited by defendant to plaintiff, but the jewelry shipped by defendant to plaintiff was old, corroded, and flimsy jewelry, and of no inherent value within itself, and of no market value whatever; that at the time of the trial in cause No. 1514, wherein the said Lyon-Taylor Company procured a judgment against him, he did not know, and had no means of knowing, that said jewelry was not according to the order and the samples exhibited, and that said Lyon-Taylor Company had, by fraud, procured said order from plaintiff, and that at the time of the procuring of said order the said Lyon-Taylor Company had no intention of filling said order in good faith, with the kind of goods, quality and character, as represented by defendants, and as shown by the samples at the time of the purchase.

The defendant, Lyon-Taylor Company, answered, setting up, among other pleas, the judgment in cause No. 1514 as res adjudicata of plaintiff’s suit.

This suit was tried on January 15, 1911, and resulted in a judgment in favor of plaintiff, 'Johnson, which judgment set aside, annulled, and vacated the judgment theretofore rendered in cause No. 1514, and from which judgment the defendant, Lyon-Taylor Company, appealed to the Court of Civil Appeals at Galveston, and which court dismissed the case (147 S. W. 605), because the judgment of the lower court was not a final judgment, and on March 10, 1916, plaintiff filed his first supplemental petition, in which he pleaded the judgment dated January 15, 1911, in cause No. 2086, rendered in favor of John S. Johnson, and against Lyon-Taylor Company, which judgment purported to set aside, annul, and vacate the judgment rendered in cause No. 1514, as res adjudicata of the defenses set up in defendant’s answer, and defendant then filed its first supplemental answer, in which it pleaded general demurrer, general denial, and specially that the judgment rendered in favor of John S. Johnson against the Lyon-Taylor Company in cause No. 2086 was dismissed by the Court of Civil Appeals because the judgment appealed from was not a final judgment, and by reason thereof said judgment is of no force and effect, and is not res adjudicata of any of the issues involved in this suit.

The case then went to' trial upon these pleadings, before the court, without a jury, and resulted in a judgment in favor of the plaintiff, and from which judgment the defendant, Lyon-Taylor Company, has appealed, and brought this case to this court for revision.

The appellee, Johnson, who was the plaintiff in this suit, and the defendant in cause No. 1514, which we will hereafter refer to as the original suit, knew at the time he set up his defense in the original suit that he had bought the jewelry by samples, and, if it be true that he bought by samples, that the contract signed by him was therefore an executory contract, and that he would have the right to see and inspect the goods and determine whether they were in accordance with the samples, before he could be required to take them under the contract; but in the original suit he did not plead this as a defense. He, however, did set up in his answer in the original suit that the goods were to be delivered to him at Beaumont, that said goods were never tendered or delivered to him, and that Lyon-Taylor Company were to pay the freight charges. These contentions in the original suit were decided against him, and indirectly also settled the question of his right to inspect the goods upon arrival before receiving them.

The proof as to the alleged fraud on the part of the Lyon-Taylor Company, in substance, is as follows:

The witness F. J. Trost testified that he was a photographer by trade, and was engaged in this business at Port Arthur. Tex., in the spring of 1905; that about that time a man representing himself to be an agent of the Lyon-Taylor Company called on him; that this agent had samples of jewelry; this witness described the man, the kind of case he was carrying, and the kind of samples; that, according to the appearance of the samples, they were good and durable pieces of jewelry; that from their weight and appearance he thought they were worth the amount the agent asked for them; that this agent suggested putting in a line of jewelry, but witness told the agent that he was not in the jewelry business; the agent thereupon told him that they had a line of goods which they were placing especially in photographic studios; that he ordered some of this jewelry, and signed a written contract therefor; that the goods were shipped to him, and he opened them up; that when he opened up the goods the jewelry did not compare in quality, appearance, or durability with the samples; that they appeared to be cheaper, flimsier, and on the order used in junk shops; that he refused the goods and shipped them back; that Lyon-Taylor Company notified him that the goods were in the express office, and they would not receive them back; that Lyon-Taylor Company afterwards recovered judgment against him for the contract price of goods. He further testified that he signed an order or contract, and that he did not know whether the goods he received were according to the contract or not, but that they were not up to the standard of the samples.

William Snick testified that he was in business in Beaumont, Tex.; that in February or March, 1905, he had exhibited to him certain samples of jewelry; that the man who exhibited to him the jewelry was the same man, according to the description, that F. J. Trost had described, and that the samples were carried in a case similar to that described by witness Trost; that the samples of jewelry exhibited to him looked to be bright, durable, and substantial, and seemed to be very fine jewelry; that he gave an order for some of the jewelry; 'that ho afterwards received a shipment from the Ijyon-Taylor Company, but did not accept it, and sent it back; that Lyon-Taylor Company wrote Mm several letters, advising him to accept the goods, as it would not take them back; that he never did see what was in the package, did not open it at all; that he did not know whether its contents were like the samples or not; that he did not take it out of the express office and pay for it because he thought it was to be delivered to him at Beaumont, and he thought they were to pay the express on it; that there was a misunderstanding as to who would pay the express was the reason he did not take it out of the office.

A. C. Boseman testified that in February or March, 1905, he was clerking for appel-lee, Johnson, and was present when some samples of jewelry were exhibited. He described the man exhibiting the jewelry, and the case in which he carried his samples, about the same as witness Trost and witness Snick. He testified that the samples seemed to be all right. They seemed to be new and looked to be nice enough.

The appellee, John S. Johnson, testified that he was conducting a grocer store in Beaumont, Tex., in the spring of 1905; that on February 2T, 1905, he had exhibited to him some samples of jewelry. The appel-lee described the man exhibiting the jewelry and the kind of case he was carrying about the same as the other witnesses. He testified that the jewelry looked to him to be good; that it looked like any other good gold jewelry; that it looked durable, fresh, and new, and that he gave an order for some of it, in accordance with the samples; that the appellant here brought suit against him, and recovered judgment; that up to the time the case was tried and appealed he did not have any reason to suspect that it was filling orders that were not according to samples; that the first time he learned or had suspicioned that it was not filling its contracts according to sample was from E\ J. Trost, who testified in this case, and who lived at Port Arthur; that he did not learn this from Mr. Trost until after the trial of the case of Lyon-Taylor Company against him; that was the first time he learned that the goods were not according to samples; that he had never seen the jewelry, shipped to him; he could not say whether the jewelry that was sent was according to samples or not; that he did not know whether it was in accordance with their contract or not; that he never made any investigation of the business methods of Lyon-Taylor Company before the trial of the case against him; that he never made any inquiry in regard to the appellant’s business, but that he did know where its place of business was; that he never wrote any letters up there; that the first time he knew about the frauds was when he talked to P. J. Trost; that he did not talk to Snick until after he saw Trost; that he was pretty certain that he saw Trost before he saw Snick; that Snick testified in the former case, hut that he had seen Trost before that time; that he was not sure that he talked to Trost before or after the trial of this case; that he hunted up Trost to see whether he had received the goods; . he went to find out about the goods, to see if they were all right or not; that he still thought they were all right up to that time; that he would still have taken the goods if they had been all right; that when Chaplain, agent for Wells Fargo Express Company, testified in the first case, that he did not have a pretty good idea that the goods he bought were in Houston, that the witness Chaplain testified in said trial that he thought that they were in Houston, but that he never did inquire in Houston; that he did inquire in Beaumont, at both the Pacific Express Company and Wells Fargo Express Company; that he thought he made this inquiry about 30 days after the goods were supposed to reach Beaumont.

We do not think that independent transactions between appellant, Lyon-Taylor Company, and other parties, not in any way connected with the transaction between the parties to this suit, was admissible in evidence in this case, even though it could be shown that the appellant, Lyon-Taylor Oom-pany, acted fraudulently in each transaction, and especially is this true since no proof whatever was offered to show that the goods shipped by appellant, Lyon-Taylor Company, to appellee, Johnson, were not as represented to be by the Lyon-Taylor Company and ordered by Johnson. Haynes v. Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532.

We -do not agree with appellee that the judgment rendered in cause No. 2086 on January 15, 1911, in favor of John S. Johnson and against the Lyon-Taylor Company setting aside, annulling, and canceling the judgment in the original suit could be pleaded as res adjudicata of the defenses set up in defendant’s answer. The Galveston Court of Civil Appeals held, that this judgment was not a final judgment, and, not being a final judgment, it certainly could not be pleaded as res adjudicata of the defenses set up by defendant.

We are of the opinion that the judgment rendered in this case is a final judgment.

We are therefore of the opinion that the trial court erred in rendering judgment for appellee, Johnson, and that this case should be reversed, and here rendered for appellant; and it is so ordered.
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author: FLY. C. J.

text:
    GIVENS v. GIVENS.
    (No. 5870.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.
    Rehearing Denied June 13, 1917.)
    1. Evidence <@=3348(2) — Foreign Judgments —Proof.
    A foreign judgment certified by the clerk, but not by the court, is admissible where a witness testified that it was a true copy of the original which he had examined.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1369-1383.]
    2. Divorce <§=o326— Fobeign Judgment — Collateral Attack.
    A foreign divorce judgment, though reciting the jurisdictional facts, may be collaterally attacked. ,
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 827-830, 840.]
    3. Divorce <@=168 — Domestic Judgment — Collateral Attack.
    A domestic divorce judgment can be collaterally attacked only when it does not recite the jurisdictional facts.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 549, 550.]
    4. Evidence <^=80(1) — Presumptions — Foreign Law.
    Where the foreign law is not alleged and proved, it will be presumed to be the same as in the state of the forum.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101.]
    5. Divorce <@=77 — Jurisdiction—Service.
    Under Rev. St. 1911, art. 1869, providing for service upon absent or nonresident defendants by a notice addressed to such defendant by the clerk of court, etc., a writ issued to the sheriff directing him to summon such a defendant is void, and handing such writ to the defendant outside the state confers no jurisdiction.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 251-254.]
    6. Husband and Wipe <@=3272(4) — Community Property — Wife.’s Right to Partition.
    A woman who married a second time after void divorce proceedings against her first husband cannot sue her first husband for partition of community real estate, since the maintenance of such an action is dependent npon a valid divorce.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1005.]
    Appeal from District Court, Hidalgo County ; V. W. Taylor, Judge.
    Suit by Julia M. Givens against E. L. Givens. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Glasscock, McDaniel & Bounds, of Mc-Allen, for appellant. Geo. P. Brown, of Laredo, and D. F. Strickland, of Mission, for appellee.
   FLY. C. J.

This suit was instituted by appellee, who although styled Julia M. Givens, claims to be Julia M. Harrison, and was joined by P. W. Harrison, as her husband, to recover of appellant one-half of certain lands which she alleged were the community estate of herself and appellant, having been acquired during her coverture with him. She alleged that on November 14, 19Í4, she obtained a divorce from appellant in the circuit court of St. Louis, Mo., and on October 20, 1915, was married to P. W. Harrison. Appellant denied that the St. Louis court ever obtained jurisdiction over him and that any valid decree of divorce was ever granted, “in that no valid service of citation and notice was ever served on him,” that he and appellee were married in 1883, and lived together as man and wife until 1906, when they separated, and that the property had been earned by him since said separation.

Over the protest of appellant, a purported certified copy of a decree of divorce entered by default by the circuit court of the city of St. Louis, of date November 4, 1914, was introduced in evidence, the objection to it being that it was not shown that the court had jurisdiction, and that the certificate had not been certified by the court, but by the clerk alone. Without objection appellee testified that the certified copy was substantially the same as the original judgment. She testified to having examined the original, and that the document introduced in evidence was a true copy. This was sufficient to admit it. St. Louis Metal Co. v. Beilharz, 88 S. W. 512; Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513.

It is well settled that a judgment of divorce granted in another state may be collaterally attacked by showing that the court which granted it was without jurisdiction, even though jurisdictional facts are recited in the judgment. Norwood v. Cobb, 24 Tex. 554; Chunn v. Gray, 51 Tex. 112; Redus v. Burnett, 59 Tex. 581; Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154; Stuart v. Cole, 42 Tex. Civ. App. 478, 92 S. W. 1040; Batjer v. Roberts, 148 S. W. 841. The rule that a domestic judgment in which service is recited cannot be collaterally attacked does not apply to a foreign judgment. League v. Scott, 25 Tex. Civ. App. 318, 61 S. W. 522; Batjer v. Roberts, herein cited. It follows that appellant could attack the foreign judgment by default offered in this case, and could have done so had it been a domestic judgment, as it does not recite service on appellant.

The facts in this case show that judgment for a divorce was rendered in the circuit court of St. Louis, Mo., and that a writ was issued to the sheriff of St. Louis, commanding him to summon Henry L. Givens to appear at a certain term of the court in St. Louis, to answer a certain complaint set out in a petition attached to the writ. The writ was handed to appellant by Tom May-field in Hidalgo county, Tex., in the town of McAllen. No other notice of the suit was given him. This testimony was uncontroverted, and it follows that the summons issued to a Missouri sheriff was handed to a defendant in Texas by some person, and that the judgment of divorce rests on that service alone. What the laws of Missouri may be on the subject was not shown, and if it be presumed that the law as to serving a party in another state is the same in Missouri as in Texas, there was no service on appellant, and the St. Louis court was without jurisdiction to render the judgment, and it is null and void. Such presumption will be' indulged in the absence of allegation and proof of the foreign law. Sadler v. Anderson, 17 Tex. 245; Railway v. Wise, 101 Tex. 459, 109 S. W. 112; Railway v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282.

Article 1869, Revised Statutes of Texas, provides that, where the defendant is absent from the state, or is a nonresident of the state, the clerk, upon application' by any party to the suit, his agent or attorney, shall address a notice to the defendant to appear- and answer the petition, naming the time and place. It also provides that the notice shall run in the name of the state and give date of filing, file number, names of all parties, and nature of the demand, and that a copy of the petition accompany the notice. The notice in this case is' not addressed to appellant, but to the St. Louis sheriff, commanding him, to perform a service which it was utterly impossible for him to perform and which he did not perform. This was not a compliance-with the statute. It is not contemplated that such a summons should be directed to or served by an officer. Porter v. Hill, 33 S. W. 383; Blethen v. Bonner, 93 Tex. 141, 53 S. W. 1016.

It has been held that the marriage relation may be dissolved upon notice by publication,, which would undoubtedly apply with equal force to the service contemplated in article' 1869, where the law of the domicile of the-complainant is strictly complied with. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

In the cases of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1, and Nat. Exch. Bank v. Wiley, 195 U. S. 259, 25 Sup. Ct. 70, 49 L. Ed. 184, it was held that, while under the Constitution full faith and credit must be given to judgments and decrees of other states, if there was no jurisdiction of the subject-matter or of the person of the defendant, the courts of another state are not required to enforce such judgment or decree. The decision in Haddock v. Haddock goes farther on other points connected with the marital contract than it is necessary to go in this case. The case is fully discussed by Judge Talbot in the case of Griffin v. Griffin, 54 Tex. Civ. App. 619, 117 S. W. 910, and the proper construction, we think, placed upon it. Admitting the authority of a state to render a decree of divorce in favor of a resident thereof against the resident of another state, it most certainly must be done upon the service required by its laws, to be valid and binding.

The evidence shows that appellant was never served with notice, as required by law, and notice to a person in a different state from that in which the suit is pending is not at best as satisfactory as could be desired, and it must be done at least in substantial compliance with the statute in order to be recognized.

The right of appellee to a partition of the community real estate depends on the fact that a divorce had been granted and that she was consequently no longer the wife of appellant. Michael v. Rabe, 109 S. W. 939. Upon a failure to prove a divorce, the whole .fabric of the case collapsed.

The judgment is reversed, and the cause .remanded.
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author: RICE, J.

text:
    THOMAS & SONS v. FOLMAR.
    (No. 5732.)
    (Court of Civil Appeals of Texas. Austin.
    April 11, 1917.
    Rehearing Denied June 13, 1917.)
    .Bruns and Notes <§=^537(8) — Defense—Payment— Questions foe Juey.
    Where the defense to the note sued on was payment and there were facts and circumstances from which the jury had the right to find that the note had been paid, the court properly refused to instruct the jury to answer issue of payment in the negative, although plaintiff tes-tified that note had not been paid and there was no direct evidence contradicting his testi- • mony.
    [13d. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1885, 1886.]
    Appeal from Milam County Court; John Watson, Judge.
    Suit by Thomas & Sons against J. T. Fol-rnar. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Morrison & Lewis, of Cameron, for appellants. Henderson, Kidd & Gillis, of Cameron, for appellee.
   RICE, J.

This suit was brought by appellants to recover on promissory note against Folmar, the original payee thereof, as in-dorser. Appellee defended on the grounds, first, of payment; second, that the suit was not brought to the first term of court, nor to the second term after the note was due, showing good cause for not having brought the same to the first term. Appellants replied, first, denying the payment; second, asserting the insolvency of Boque, the maker, in order to excuse their failure to bring the same in proper time; and, third, alleging extension of the time of payment of the note by agreement between themselves, the maker and indorser. The case was submitted to the jury on special issues, and they, in response thereto, found the plea of payment true, and against the plea of insolvency, and judgment was at appellee’s request rendered in his favor, from which appellants have prosecuted this appeal.

In the view we take of the case, it is only necessary to discuss one of the many assignments of error of appellants, upon which they rely for reversal, because, if determined, as we think it should be, in favor of appellee, it renders the other questions raised immaterial. Their fifth assignment alleges that the court erred in not instructing the jury to return a negative answer to the first special issue submitted, because the undisputed evidence showed that the note had never been paid by appellee or otherwise. We think the court properly refused to so instruct the jury. The question of whether the note had been paid or not was one of fact to be determined by the jury from all the evidence. . They found against appellants upon this issue. It is true that one of the appellants testified that the note had never been paid, and there is no direct evidence contradicting his testimony in this respect; but there are facts and circumstances in evidence from which the jury had the right, we think, to find that the note had been paid. Appellant was an interested witness, and it appears that the jury saw proper not to credit his testimony, which was a matter solely for their consideration. See Navarro v. Lamana, 179 S. W. 922, and authorities there cited; Atchison & Topeka Ry. Co. v. Lucas, 148 S. W. 1149; Thomas v. Saunders, 150 S. W. 769, and authorities there collated.

The jury having resolved the issue of payment against appellants, and the trial court having permitted their verdict to stand, and he being in a better position to pass upon this issue than we are, we are not inclined to disturb their verdict. We therefore hold that the court did not err in refusing to give the requested charge, for which reason the judgment is affirmed.

Affirmed.
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author: HIGHTOWER, C. J.

text:
    FIRST STATE BANK OF TOMBALL v. TINKHAM et ux.
    (No. 231.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 1, 1917.
    Rehearing Denied June 13, 1917.)
    1. Husband and Wife <@=>156 — 'Wife’s Contracts — Joint Note with Husband — Statute.
    A wife by merely executing jointly with her husband a note does not bind herself personally or her separate property notwithstanding the Married Woman’s Act of 1913 (Acts 33d Leg. c. 32), amending Rev. St. 1911, art. 4624 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4624), providing that community property other than wife’s earnings and income from separate property shall be subject to 'her debts, and that she shall never be the joint maker of the note of another without joinder of her husband in the contract, and giving wife sole management and control of her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 608-622.]
    2. Husband and Wife <@s=198 — Deed of Trust by Wife — Validity—Estoppel.
    Although husband procured the money under express agreement that wife would- join him. in the trust deed, which she alone signed, the deed was invalid, and neither husband nor wife, in a foreclosure suit, were estopped from denying its validity; there being nothing to show fraud on wife’s part.
    - [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 733, 944.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge. .
    Suit by the -First State Bank of Tomball against George F. Tinkham and wife. From a judgment giving plaintiff partial relief, it brings error.
    Judgment affirmed.
    Thos. H. Ball, of Houston, for plaintiff in error. Fisher, Campbell & Amerman, of Houston, for defendants in error.
   HIGHTOWER, C. J.

This suit was filed by plaintiff in error, First State Bank of Tomball, Tex., against George F. Tinkham and his wife, Laura Tinkham, defendants in error, on July 6, 1915, in the district court of Harris county. Plaintiff prayed judgment against both of said defendants upon a promissory notó jointly executed by them on the 10th day of November, 1913, payable to plaintiff one year after date, with 10 per cent, interest from maturity until paid, and 10 per cent.' additional on the principal and interest' as attorney’s fees, as provided in said note. Plaintiff further prayed for foreclosure of A mortgage on lot 3, block 17, of the A. C.'Allen addition to the city of Houston, and certain 5-acre tracts of land in the town of Tom-ball, aggregating 55 acres of land. It was alleged that Said' mortgage or deed of trust was duly signed and acknowledged by the defendant Laura Tinkham, and that the defendant George F. Tinkham, her husband, in order to secure the money represented by the note, had agreed to sign said "mortgage or deed of trust, but declined to do so, after the money representing the proceeds of said note had been received by Tinkham and wife.

At the time of the filing of this suit, plaintiff also sued out an attachment, and had same levied upon the property above described. Defendants filed their answer and cross-action on July 20, 1915, admitting the execution of the note, as alleged, but denying that the note was executed for the benefit of the separate estate of Laura Tinkham, and alleged that the deed of trust was void, because not signed by her husband, George F. Ti'nk-ham, and claimed the 5-acre tracts in the town of Tomball as their homestead, and the lot in the Allen addition in the city of Houston as the separate property of Laura Tink-ham, and prayed that the deed of trust be declared void, as a cloud upon the homestead of defendants and said separate property of defendant Laura Tinkham.- Plaintiff replied by supplemental petition, denying-the aver-ments in said answer and cross-action of defendants, and set up that the money was pro- ■ cured upon the faith solely 'of the security offered; that because of the representations made at the time the money was procured, and the agreement by George F. Tinkham to ’ execute the 'deed of trust', that both defendants were estopped from denying its binding force and effect; to which supplemental petition defendants filed a' supplemental answer, generally and specially denying the allegations therein-.

When the cause came on for trial, a jury was waived, and the case;tried to the court, and after hearing the evidence of all parties, the court rendered judgment for plaintiff in error against defendant in error George F. Tinkham for the amount of the note sued upon, interest and attorneys’ fees, amounting in the aggregate to $3,093.75. Recovery was denied upon said note as against defendant Laura Tinkham, because at the time of its execution she was a married .woman, and the note was not executed for any purpose sufficient to make her or her separate estate liable for the payment thereof. The trial court further held the deed of trust sought to be foreclosed null and void, because same was executed by.Mrs. Laura Tinkham, a married woman, and was not executed by her husband, George - F. Tinkham. The court also held that lot 3 in block 17 of the Allen addition to the city of'Houston was the separate property of the defendant Mrs. Laura Tink- , liana at the time of the making of the note, and prior and subsequent thereto, and that the 5-acre tracts of land, aggregating 55 acres in the town of Tomball, was the homestead of defendants, and not subject to incumbrance or forced sale. The court also held, of course, 'that the attachment lien claimed by plaintiff was, in fact, no lien, and was inoperative. The case is now properly before this court on writ of error. -

The first assignment of error is:

“The court errecl in rendering judgment solely against the defendant George F. Tinkham in favor of the plaintiff for the sum of $3,063.-75, and in not rendering same against both defendants, George F. Tinkham and Laura Tink-ham, jointly and severally, as the undisputed facts show that the note sued upon was executed jointly by George F. Tinkham and Laura Tink-ham, as original makers, on November 10, 1913, payable to the order of plaintiff, one year after date, and that said note, principal, interest and attorney’s fees aggregated the said sum.”

The proposition under this assignment is:

“The note sued on was executed by George F. Tinkham and his wife, Mrs. Laura Tinkham, on November 10, 1913, after the statutes of Texas had authorized the joint making of a note by husband and wife so as to bind the wife upon such an undertaking and support a judgment thereon against both husband and wife.”

It is admitted that George T. Tinkham and wife, Laura Tinkham, jointly executed the note sued on as of date November 10, 1913, after the act commonly called the Married Woman’s Act went into effect. It is admitted that Laura Tinkham, at the date of the deed of trust, was the wife of George F. Tinkham, and that she properly signed and acknowledged the deed of trust, but that her husband never did join her therein. It is admitted that Laura Tinkham made no representations at .any time to the bank, either about the making of the note, or about the making of the deed of trust, but signed both at the request of her husband. It is admitted that lot 3 in block 17, described in the deed of trust, was at all times the separate property of Mrs. Laura Tink-ham, and that the 5-acre tracts also described in the deed of trust were at all times the homestead, as claimed. It is admitted that no portion of the money represented by the note in question was used by George F. Tink-ham for the use or benefit of Mrs. Laura Tinkham, or her separate property, and no representations of any kind were made to that effect, but it was distinctly understood by the bank and George F. Tinkham that the money was being borrowed for the purpose of erecting an ice plant in Tomball, and the money so used was drawn out by checks on plaintiff’s bank for that purpose, with the full knowledge of the bank.

Defendants in error make this counter proposition to the proposition of plaintiff in error, under its first assignment:

“Even under- the act of 1913, a married woman cannot execute a note with her husband for the purpose of procuring funds for him to use in business, and thereby bind her separate property.”

The contention here made by plaintiff in error and denied by defendants in error was decided directly by the Court of Civil Appeals at Texarkana, in' an opinion filed on January 18, 1917, and now reported in 192 S. W. at page 1088, in the case of Red River National Bank v. Ferguson et al., 192 S. W. 1088. The question is considered at some length by Judge Levy, speaking for the court, and the conclusion' is reached that a mar-tied woman does not bind herself personally,, or her separate property, by merely executing jointly with her husband a promissory note, as was done in this case, but that such an obligation is that of the husband alone, and no personal judgment can be rendered against the wife, notwithstanding the act of 1913, commonly known as the Married Woman’s Act. The particular article of the act in question relied upon by plaintiff in error herein is article 4624, Vernon’s Sayles’ Texas Civil Statutes. That article reads as follows:

“Neither the separate property of the husband, nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property, shall be subject to the payment of debts contracted by the wife, except those contracted for necessities furnished her or her children: Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

The precise question here raised having-been directly decided by the Court of Civil Appeals at Texarkana adversely to the .contention of plaintiff in error, and the reason given by that court for its decision appearing to us to be sound, we approve the same, and agree with that court that the mere act of a married woman in signing a promissory note jointly with her husband will not have the effect, notwithstanding the act of the-Thirty-Third Legislature amending article-4624, to bind such married woman or render her liable to a personal judgment, or have the effect to bind her separate property in any way. No riseful purpose could be-served by reiterating or repeating the reasons for this conclusion, as advanced by Judge Levy, speaking for the Texarkana court, and we merely refer to the decision in the case-above mentioned, and overrule plaintiff in error’s first assignment of error.

The second assignment of error is, in effect, that the trial court erred in holding-the- deed of trust sought to be foreclosed by plaintiff in error null and void, and of no-force and effect, and in not holding that same was in full force and effect as to lot 3 in block 17 of the Allen addition to the city of Houston, and contend that defendants in error were estopped from denying the validity of said deed of trust as to said lot.

The proposition under the assignment is,, in substance, that George F. Tinkham having-procured the money represented by the note sued upon, with the express statement and agreement that his wife would join him in the mortgage, and she having, in fact, executed the mortgage, equity requires the enforcement of her husband's verbal agreement to sign same, and enforce the lien against the property covered by the mortgage.

As we have hereinbefore stated,- it is admitted by both parties to this cause that-there never were any negotiations between the bank and Mrs. Tinkham regarding either-the note itself or the mortgage or deed of trust. She made no statement to the bank at any time with reference to either matter, and therefore it could not be and is not contended that she made any false representations or statements of any character that induced the bank to let her husband have the money represented by this note. Consequently, it certainly cannot be successfully contended that Mrs. Tinkham did anything that amounted to the perpetration of a fraud upon plaintiff in error. The statute of this state plainly says that in order to give validity to a married woman’s act in attempting to convey or incumber her separate real property, she must be joined in the conveyance or instrument incumbering such property by her husband, and, if not, such conveyance or instrument attempting to so incumber her separate property is of no effect or validity. We do not gather from the contention made by plaintiff in error that Mrs. Tinkham herself did or said anything that would operate as an estoppel against her in now claiming her separate property should not be subjected to plaintiff in error’s claim under its deed of trust, but the contention of plaintiff in error is that the representations or statements made by her husband, George F. Tinkham, to the effect that Mrs. Tinkham would execute the deed of trust, and the fact that the money was loaned to him upon the faith of such representations and statements, estops not only George Tinkham himself, but also his wife, from claiming the invalidity of the deed of trust in question, on the ground that he, the husband, did not join his wife in the execution of this deed of trust, as is required by the law of this state, to give it validity. We concede that we are unable to follow the reasoning of plaintiff in error as to this contention. If the instrument, whether we call it deed of trust or mortgage, of itself has no validity because not executed in the manner as required by the law of this state, and if the wife did nothing to estop her, which seems to be admitted in this ease, then we cannot see how the instrument can be enforced, either as being a valid one, or how Mrs. Tinkham can be estopped from denying its validity when she has said or done nothing to so estop her. That the instrument itself was a nullity, see Ford v. Ballard, 1 Tex. Civ. App. 376, 21 S. W. 146, and cases there cited: also Merriman v. Blalack, 56 Tex. Civ. App. 594, 121 S. W. 552; Fitzgerald v. Turner, 43 Tex. 82; Berry v. Donley, 26 Tex. 737; Johnson v. Bryan, 62 Tex. 623.

The third assignment is, in substance, that the court erred in refusing to foreclose plaintiff’s attachment lien upon lot 3 in block 17 of the Allen addition to the city of Houston to satisfy plaintiff’s demand upon the note sued on. In answer to this, it will suffice to say that if we are correct in our conclusion that the deed of trust executed by Mrs. Tinkham had no validity, and if she was not estopped to deny its validity, and if we are also correct in the conclusion that there could be no personal judgment rendered against Mrs. Tinkham in favor of plaintiff in error as to the note sued on, then certainly there was no error in the trial court’s refusing to foreclose the claimed attachment lien thereon. Therefore this assignment of error is also overruled.

This disposes of all the assignments of error, and since we have concluded that no error on the part of the trial court has been pointed out, its judgment is in all things affirmed.
      <@uo>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HUNTER v. MARLIN NAT. BANK.
    (No. 5794.)
    (Court of Civil Appeals of Texas. Austin.
    May 9, 1917.
    On Motion for Rehearing, June 13, 1917.)
    1. Coukts <®=»122 — Jurisdiction—-Foreclosing Chattel Mortgage.
    Jurisdiction in an action for debt and to foreclose the chattel mortgage security is determined by the value of the mortgaged chattels as alleged in the petition, unless the allegation was fraudulently made to confer jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427.]
    On Motion for Rehearing.
    2. Courts <©=5122 — Jurisdiction—Foreclosing Chattel Mortgage.
    The value of the property as alleged by the petition in action to foreclose chattel mortgage being such as to give jurisdiction to the county court in which action was brought, and the court finding the allegation was made in good faith, it is immaterial that the evidence on the trial showed the value to be less than the jurisdictional amount.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427.)
    Appeal from Falls County Court; F. S. Heffner, Judge.
    Action by the Marlin National Bank against C. T. Hunter. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. W. Bounds, of Marlin, for appellant. Jennings & Higgins, of Marlin, for appellee.
   JENKINS, J.

Appellee sued appellant in the county court upon a promissory note for the sum of $122, with interest and attorney’s fees, and to foreclose a chattel mortgage upon live stock, alleged to be of the total value of $250. Appellant filed a plea in abatement, alleging, among other things, that the live stock covered by said mortgage were all dead before and at the time of the filing of the suit, except one mare and one cow, aggregating in value a sum less than $200, and alleged that the alleged value of said mortgaged property of $250 was made by plaintiff in order to fraudulently confer jurisdiction upon the county court. Evidence as to the value of the mortgaged property was heard by the court on the plea in abatement, and said plea was overruled, and judgment was rendered for the plaintiff, upon which action of the court the appellant assigns error.

It has been settled by repeated decisions of our Supreme Court that, in a suit for debt and to foreclose a chattel mortgage, the value of the property mortgaged is determinative of the jurisdiction of the court. It is well settled that the question of jurisdiction will be determined by the allegations in plaintiff’s petition, unless the same are fraudulently made for the purpose of maintaining or defeating jurisdiction of the court in which the suit is filed. McDaniel v. Staples, 113 S. W. 596; Houston Ice Co. v. Improvement Co., 29 Tex. Civ. App. 40, 67 S. W. 1079; Stricklin v. Arrington, 141 S. W. 189; Tenison v. Hagendorn, 155 S. W. 690. Numerous eases sustaining this proposition may be found in Michie’s Digest, Courts, vol. 5, p. 404.

The testimony upon the part of the plaintiff as to the allegations that the value of the mortgaged property was fraudulently alleged amply sustains the finding of the court against said plea. The mortgage was upon one mare and four cows. It recites that the mare was bought for $600. T. A. Reed, who wrote the mortgage, testified that defendant told him that he paid $600 for the mare. Plaintiff’s attorneys testified that on the day the suit was brought, and prior to the filing of the petition, the defendant told them that three of the cows were dead, but that the mare and the cow living were worth $250.

Appellant cites the case of Cantrell v. Cawyer, 162 S. W. 920, decided by this court. That case is not in point. In that case there was no allegation as to the value of the mortgaged property. The only allegation in the petition was as to the amount of the debt, which showed jurisdiction of the trial court.

The testimony upon behalf of the appellee as to the value of the mare is by no means conclusive. The appellee testified that the mare was registered as a race mare, and that he paid $600 for her, but that the registration was counterfeit. Two witnesses for appellant testified that they were acquainted with the market value of horses, and that if the registration of the mare as a race mare was counterfeit, and if she was not a brood mare, she was worth only $40 or $50. Neither of these witnesses claimed to know whether or not the registration was counterfeit, nor whether or not she was a brood mare. The testimony showed the cow to be worth $50.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellant seems to have construed our statement that the testimony as to the value of the mare was by no means conclusive as being the ground upon which we affirmed the judgment herein. An examination of our opinion herein will show that our decision is based upon the fact that appellee alleged in his petition that the value of the mortgaged property was $250. This being alleged, and the court having found that the allegation was made in good faith, and not for the fraudulent purpose of conferring jurisdiction, it is immaterial that the evidence upon the trial showed that such property was worth less than $200.

Motion for rehearing is overruled.

Overruled.
      «Er^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes