author: HENDRICKS, J.

text:
    QUANAH, A. & P. RY. CO. v. JOHNSON.
    (Court of Civil Appeals of Texas. Amarillo.
    May 15, 1913.
    On Motion for Rehearing, June 14, 1913.)
    1. Tkial (§ 192) — Injuries to Passengers —Trains—Negligent Operation.
    In an action for injuries to a passenger by being thrown down in the aisle of a passenger coach by an extraordinary and unusual bump as the engine was coupled to the car in which plaintiff was, defendant having made no attempt to show that the bump was not extraordinary and unusually severe, the court did not err in assuming that the sudden movement of the train constituted negligence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    2. Damages (§ 169) — Injury to Passenger-Evidence — Character.
    Where, in an action for injuries, defendant, by evidence of its own witnesses and by cross-examination of plaintiff, raised the issue that plaintiff was malingering, evidence that plaintiff’s general reputation in the community in which he lived was g;ood was properly received, though defendant did not otherwise impeach plaintiff or put his character in issue.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 495; Dec. Dig. § 169.]
    3. Appeal and Error (§ 1067) — Review—Instructions — Prejudice.
    Where, in an action for injuries, the petition alleged $150 as plaintiff’s damage sustained by being compelled to purchase medicine and to pay for physicians’ services, and the court had limited the jury to that amount; and the evidence of the value of the services of one of plaintiff’s physicians approximated closely $150, the fact that plaintiff had employed two physicians and- that the evidence showed the value of the services of only one of them did not render prejudicial to defendant a paragraph of the charge on the subject of plaintiff’s right to recover for medicines and physicians’ services in failing to limit the recovery to the services of the one physician; defendant not having requested a special charge limiting plaintiff to such recovery.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    4. Trial (§ 296) — Instructions—Damages— Double Recovery.
    Where, in an action for injuries, a paragraph of the charge submitted specifically the measure and elements of damage recoverable, a subsequent paragraph charging that, if the jury fbund for plaintiff under the instructions previously given, they should allow him such damages as seemed to'them to be right and proper under all the circumstances and evidence did not authorize the allowance of double damages.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    On Motion for Rehearing.
    5. Carriers (§ 321) — Injuries to Passenger —Instructions.
    Where, in an action for injuries to a passenger, it appeared that he was thrown down in the aisle and injured by an unusual bump as the engine was coupled to the car in which he was standing, an instruction that the carrier in the management of its train was required to employ careful and skillful agents was not objectionable as without evidence to support it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dee. Dig. § 321.]
    Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.
    Action by C. K. Johnson against the Qua-nah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Fires, Decker & Clarke, of Quanah, for appellant. Browne & Hawkins, of Paducah, for appellee.

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

   HENDRICKS, J.

We copy from appellant’s brief that “this suit was instituted in the district court of Cottle county, Tex., by C. K. Johnson, as plaintiff, against the Quanah, Acme & Pacific Railway Company, as defendant, for the recovery of damages for personal injury, alleged to have been sustained by the said Johnson as a passenger on one of appellant’s mixed passenger and freight trains on the 1st day of December. 1910; the said injuries alleged to have resulted from the fall appellant received as a sudden movement of such train.”

First. Appellant, by its first assignment of error, challenges the correctness of the second paragraph of the main charge of the trial court on the ground that the court in charging the jury assumed that the sudden movement of the train was negligence and that the charge as to this matter was upon the weight of the evidence and was highly prejudicial to the defendant, without leaving to the jury that the question of the jarring and jolting of the train was negligence. We are inclined to think that the complaint of appellant of the charge of the court is correct to the extent that the court did assume under the circumstances in the record that such sudden movement of the train was negligence, and necessarily the correctness of such assumption upon the part of the trial court is to be resolved upon the sufficiency of the evidence addressed to the court as justification for such charge.

Upon our consideration of this record, we think that the statement of appellee in his brief, of the evidence relevant to this particular proposition, is correct and appropriate, which we set out in full: “C. K. Johnson, the plaintiff, testified that on the date of his injury he purchased a ticket from the defendant from Quanah, Tex., to Paducah, Tex. That there were two chair car passenger coaches on the train. That he went into the rear coach at Quanah, Tex. That it was a cold day; the weather being about freezing. There was no fire in the coach. That he noticed just after leaving Quanah that there was no fire in the .coach where he was sitting. That it was about six miles from Quanah to Acme, Tex., the first stop made. That the train ran up to the depot at Acme and stopped. That the engine cut loose and he heard it move off up the track. The conductor then came to the door of the coach in which plaintiff was seated and said, ‘You all come out of this coach; come into the front coach; that they were not going to have a fire in the back coach that day.’ That the train was then standing still and all of the passengers got up and moved out into the front coach behind several other passengers. That when he got into the front coach he met a party and was endeavoring to pass said party in the aisle. That about this time something struck the front end of the train, anyhow the train gave us a severe jerk. That it threw the witness down and threw the other party down on top of the witness. That the stove’ was located a few feet inside the door of the front coach, and witness had about reached the stove when the engine or cars ran into the train. That it was either the engine or some loose ears that ran into the train. That it was a most severe jolt that he ever saw any train give. That it knocked the witness down on the floor, and he fell on his back and right arm. That some other person fell on top of him. That the fall almost knocked him senseless and that the arm he fell on was swelled to twice its normal size before he reached Paducah, Tex. Witness also testified that besides Tom Stine there were two ladies in the coach. That one of them was Mrs. Henry of Quanah, Tex. That Mrs. Henry said it was a good thing the old man didn’t fall under the bottom or it would have killed him. The old man fell on top of witness. Witness further testified that he had ridden this train a few times before this, and that he had ridden mixed trains before this one. That he rode on mixed trains up to Seymour, Tex-numerous times, and that in his experience in riding on trains similar to the one he was on this jar was an extraordinary jar. That he had never been on this train before or since this time when there was such a jar on it. The witness Tom Stine by depositions testified that he was on the train with Johnson about January 1, 1911, and remembered the jerking of this train at Acme, Tex.; that when the jerk came it was so violent that while he was standing in the big coach just behind the lavatory it threw him up against it; that it was a very sudden jerk, and was caused by other cars being thrown into the train, or rather against the coach in which they were; that it was a very extraordinary jerk; and that he had been riding on mixed trains for the past 15 or 20 years. This was all the testimony introduced as to whether the jar was unusual or extraordinary. The conductor nor any of the crew on the train were called to testify either as to the jar being an ordinary one or to deny that Johnson was moving into the coach under instructions and at the invitation of the conductor.”

The appellee, for the purpose of sustaining its position, relies principally upon the •case of International & Great Northern Railway Co. v. Copeland, 60 Tex. 325, decided by the Supreme Court, whose opinion in the cause indicates that the judgment of the trial court was reversed upon two grounds. In that case the appellee alleged that the train on which she was injured was a mixed train, composed of eight freight cars, heavily loaded, a caboose, and a passenger coach, and that at the station where the sudden jerk occurred causing the injury the train was on an upgrade, and that the load was out of proportion and too heavy for the engine which was hauling said train, to which the defendant railway company answered that the train stopped at the station the usual length of time, also alleging that the same was á mixed train, composed of eight or ten loaded freight cars and a passenger coach, and that the jerk on this particular occasion on an upgrade was not unusual in starting the same at that place, and further that if the plaintiff was injured it was by reason of her own negligence in not using diligence ip. taking her seat after she entered the train. The trial court in this cause committed a palpable error, misleading to the jury as to the contributory negligence of plaintiff in not exercising diligence in taking her seat in the coach, in which there were numerous vacant seats, two other passengers entering subsequently and having been seated, the conductor testifying that when he assisted Mrs. Copeland upon the train he cautioned her. to be seated, and after stopping the usual time signaled the engineer to go ahead, and the evidence indicating a sufficient time for her to become seated; the trial court, under this phase of the evidence, improperly charged the jury: “If necessary to avoid danger, said servants or employés should, before starting, see the passengers seated.” We are reviewing the principal point upon which this cause was reversed in order to show more clearly the history of the case. It seems, however, that in this cause, and this part of the opinion appellant is relying on, that the trial court “stated that the j'ury must determine from the proof whether slacking back the train or starting with a jerk was dangerous to the passengers, and, if it were dangerous, was it necessary to do that for. the running of the train? Or could the appellant have reasonably reduced the load or increased the engine power and thus avoided the danger f” The Supreme Court criticises this charge, stating that this was a short branch road, the trains running over it for only 44 miles, traveling slowly and making but one round trip a day and only using a mixed train for that purpose, and which had been running with the same or similar engine sinee the road opened for business, and that appellee, who was a very intelligent person, had more than once been a passenger over this same line of road, and, quoting Mr. Wharton, said that: “If I employ a carrier of small means and machinery, knowing what his capacity is,I must take him as I find him. A railroad * * * in a sparsely populated territory and running only a few trains is not required to apply all the delicate checks and guards that are in use. * * * Diligence in all these cases is not the perfection of the ideal road; it is the practical adequacy of the actual road for the particular duty it undertakes” — and we have this significant expression of the court that: “Under the circumstances, we think the main charge of the court, as given to the jury, was not in several respects applicable to the facts of the ease, as disclosed by the evidence of both pm'ties.” This latter emphasis is ours. The testimony is not set out as to the immediate circumstances of the starting of this train (in the Qopeland Case) and does not indicate whether it was a usual or an unusual jerk. It is to be noted that the engineer and the conductor of this train both testified in the cause, and, while the record of the Supreme Court, of course, is not before us, we are inclined to think we can safely assume that the testimony was opposing, in the matter of the starting of said train, as to being usual or unusual; the plaintiff! and the defendant having pleaded the same facts practically as to the number of cars and as to the train having been loaded as to freight, and that the same was required to start upon an upgrade, the former alleging that the starting of the train was negligence, stating the circumstances, the defendant railway company replying “that the jerk and the starting of the train on that occasion was not unusual * * * at that place.”

We hold under the evidence in this case, in view of the fact that the railway company did not attempt to negative or deny the testimony of the appellee and his witness, as to the extraordinary bump of said train (which is tantamount to an “unusual” bump), that the ease of Railway Co. v. Stone, 125 S. W. 587, is pertinent to the question involved here. The court in that ease said: “The testimony, being uncontradicted, established the fact that Mrs. Stone was a passenger in a coach of appellant; that the car was moved with sufficient violence to hurl Mrs. Stone against the arm of the chair she was occupying and other passengers to the floor of the car. No explanation of the shock received by the car was made by appellant. The car was its property, which it knew was occupied by its passengers, and the car was moved in such manner as to evidence carelessness and a disregard for the safety and comfort of the occupants. When these facts appeared, a prima facie case of negligence was shown, and the burden rested on appellant to show the circumstances that would exonerate it from blame in that connection.” The testimony in this cause discloses that this extraordinary bump was caused by appellant’s car or ears moved by its engine for the purpose of making a coupling, and the fact of it having been a mixed train is not so significant on account of the impact as the starting of the train in the Copeland Case with eight or tten loaded freight cars on an upgrade. At any rate, in the absence of any countervailing testimony, we think the trial court could do nothing else than assume the negligence of the defendant under this state of the record. In the Stone Case the moving of the car against the one in which plaintiff was seated seems to have been more violent than the case here, but we are unable to see, in the absence of any contradiction, why the principle enunciated there should not be applied here; the trial court in that case having peremptorily instructed the jury that the railway company was negligent, the Supreme Court denying a writ of error upon that question. Appellant’s assignment on this question is overruled.

Second. The appellant assigns error as to the action of the court in permitting certain witnesses to testify that the general reputation of the plaintiff in the community in which he lived was good on the ground that the defendant had not impeached the plaintiff and had not put his character in issue; the bill of exceptions raising this question was approved by the trial court, “with the qualification that the reputation of plaintiff had been attacked, the defense being that he was not injured.” As stated, the appellant did not contradict the appellee’s contention as to its negligencfe in the sudden movement of the train, and the plea of contributory negligence was clearly eliminated from the cause, and upon the facts there remained the only questions of the negligence of the appellant producing appellee’s injuries and the extent of same. A consideration of the testimony of the numerous witnesses of appellant, including the doctor’s and the physical demonstrations of its attorney with some of the physicians while upon the stand, coupled with the interrogations by the attorney of said physician, clearly raises the issue that appellee was malingering, which we think, under the rules with reference to impeachment, was such an attack upon plaintiff’s character as to justify the testimony as to ap-pellee’s good reputation, and under this evidence clearly distinguishable from the cases cited by appellant. Railway Co. v. Raney, 86 Tex. 863, 25 S. W. 11; Houston Electric Co. v. Faroux, 125 S. W. 924; Railway Co. v. Weideman, 62 S. W. 810. In the Raney Case, supra, 86 Tex. 366, 25 S. W. 13, decided by Justice Brown, in passing upon testimony of this character, and permitting it, he said: “Where the character of the witness is impeached by matter brought out on cross-examination, or by evidence aliunde as to character, the witness may be sustained by evidence of good character; but it must in either case amount to an impeachment of the character of the witness for truth. * * * Under the rule above stated, we hold that when the defendant called out on cross-examination of the plaintiff matter irrelevant to the issues being tried (that is, as to who dressed his arm), and then proceeded to make an issue as to whether or not the plaintiff did not write the receipt that he claimed to have been written by McReynolds, defendant made an attack upon the character of plaintiff for truth as well as for honesty, and the evidence was intended to impeach his character for truth.”

Third. Appellant contends that the trial court erred in the submission of the fifth paragraph of the main charge to the jury upon the complaint that the testimony showed that two physicians attended plaintiff and treated him, but the testimony only shows the value of the services of one physician, and the court should have limited the recovery in this respect to the value of the services only of that physician. The petition alleged $150 as the amount recoverable for medicines and physicians’ services, and the charge of the court limited the jury to the amount claimed in the petition. There is testimony of an expenditure for medicines (of an unsatisfactory character, but with reference to which there is no complaint) which, with the certain testimony as to the value of the services of one of the physicians, approximates so closely in amount to the $150 alleged that the difference is insignificant, and the appellant did not submit a special charge to the court upon the particular point as to any limitation to the jury, neither does-it complain as to the charge of the court to-the jury in which he instructs them not to-exceed the amount claimed in the petition.

Appellant also asserts that the sixth paragraph of the main charge of the court on-the matter of damages was misleading and permitted a recovery of double damages. The fifth paragraph submits specifically the-measure and elements of damage recoverable, and we think that the sixth paragraph complained of, in which the court says, “If you-find for plaintiff under the instructions heretofore given you, you will allow him such damages * * * as seem to you to be right and proper under all the facts and circumstances in evidence,” immediately succeeding the fifth paragraph, is such an inferential reference to the fifth paragraph and not containing any different measure of damages-that the two charges should and would be-read together.

We overrule all assignments and order the affirmance of the judgment of the trial court.

On Motion for Rehearing.

Appellant, in the written argument upon rehearing, in discussing its third assignment of error, says: “From the fact that the-court does not allude to this assignment in the opinion, it occurred to us that it may have been overlooked.” The assignment is addressed to the third paragraph of the main charge of the trial court in which the jury is instructed in effect that a railway company, in the management of its trains,, is required to employ skillful and competent agents, assailed upon the' ground that the submission was upon a matter not pleaded, and without evidence to support it. The original opinion, upon the issue of negligence, assumes that issue proven, ” upon the unassailed evidence in the case, no explanation whatever in the record of the unusual “bump” having been made by the defendant; and we regarded a discussion of the-third assignment unprofitable and unnecessary, and the error, if any, an immaterial one in view of the affirmance of the ease.

.The motion is overruled.


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    HOUSTON ICE & BREWING CO. v. CLINT.
    (Court of Civil Appeals of Texas. San Antonio.
    June 18, 1913.
    On Motion for Rehearing, June 28, 1913.)
    1. Appeal and Ebeob (§ 100)—Tempobaby Injunction—Restbaining Order.
    On an application for an injunction and order directing the clerk to issue a writ directed to a certain corporation and to its officers, attorneys, and employés, and to the sheriff of C. county, and his authorized deputies, commanding that they refrain from selling any property of the Ice & Gin Company of IT., Texas, or any portion thereof, pending the further order of the court, but mentioning no time at ■which the restraining order should expire, was a temporary injunction, and an appeal was properly perfected therefrom as such.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.]

      2. Corporations (§ 566) — Insolvency — Receivers — Sale op Assets — Mortgage Liens —Displacement—Statutes.
    Rev. Civ. St. 1911, art. 2185, provides that all moneys coming into the hands of receivers shall be applied to six different purposes in order, beginning with the payment of court costs and ending with judgments obtained before the appointment of a receiver. The only claim given preference over the mortgage liens being judgments rendered against the receiver for costs of action arising during the receivership, which article 2138 declares shall be a superior lien to a mortgage lien. Article 2128, subd. 2, authorizes the appointment of a receiver when a mortgagee seeks to foreclose his mortgage and sell the mortgaged property. 'Held, that such sections were merely declaratory of the rules previously existing for the distribution of assets of an insolvent, collected pursuant to a receivership; the mortgage lien referred to being not mortgage liens generally, but the mortgage lien of the creditor at whose instance the receiver was appointed, so that where a receiver of the mortgaged property of a corporation was appointed at the instance of the holder of t'he junior mortgage on the property, to which the first mortgagee was not a party, and in which proceedings he did not participate, the court had no authority to so conduct the receivership as to consume the property to the prejudice of the rights of the first mortgagee, nor could he be made liable for the costs and expenses of the receivership or the mortgaged property used to pay the same to the prejudice of his security.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.].
    3. Corporations (§ 553) — Insolvency—Receivership.
    Since the holder of a junior mortgage on the assets of an insolvent corporation had no interest in the property except in the surplus remaining after .satisfaction of the first lien, the court should not entertain a proceeding at his instance to have the corporation’s assets, which were insufficient to satisfy the first lien, administered through a receivership, the effect of which would necessarily be to merely sacrifice the security of the first lien holder.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. § 553.]
    4.Receivers (§ 174) — Insolvency — Judgment — Satisfaction—Injunction.
    Where proceedings were instituted by a junior lien holder to administer the assets of an insolvent corporation through a receivership, other creditors were authorized by Rev. Civ. St. 1911, art. 2146, to sue the receiyer, without leave of the court appointing him, to satisfy their claims.
    [Ed. Note. — For other cases, see Receivers. Cent. Dig. §§ 333-843; Dec. Dig. § 174.]
    5.Receivers (§ 187) — Insolvency—Claims —Execution.
    A judgment reoovered against a receiver of an insolvent corporation cannot be enforced by seizure of the corporation’s assets under an execution.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 377% i Dec. Dig. § 187.]
    6. Corporations (§ 566) — Insolvency—Receivers— Sale of Assets — Injunction.
    Where a junior lien holder obtained the appointment of a receiver of the assets of an insolvent corporation, which were only sufficient to pay the first lien, and judgment was recovered against the receiver, an injunction was properly issued restraining the sale of the corporation’s assets under an execution; but, the senior lien holder having applied for a sale of the property in such proceedings, the court could properly order a sale, either by the sheriff, or by such mode as would be likely to result in the least expense.
    [Ed. Note.' — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.]
    7. Corporations (§ 566)— Receivers — Continuance— Sale of Assets — Distribution.
    Where the assets of an insolvent corporation were insufficient to pay more than the first mortgage, but a receiver was appointed at the instance of a junior lien holder, the receivership should not continue, but the property should be sold and the proceeds applied first to the payment of the costs of the suit instituted by the senior lien holder to recover his debt and foreclose his mortgage, then to the payment of the principal and interest of that debt, and the remainder, if any, to be paid to the receiver to be expended as directed by the court.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.]
    8. Receivers (§ 182) — Bond—Duty to Give.
    Under Rev. Civ. St. 1911, art. 4654, providing that before the issuance of an injunction a bond shall be given by the party applying for the same, except where the state is the complainant, a receiver, though an officer of the court, is not entitled to an injunction to restrain the sale of property in custodia legis without depositing the proper bond.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 360; Dec. Dig. § 182.]
    On Motion for Rehearing.
    9.Corporations (§ 566)— Insolvency — Administration of Assets — Receivers — Receiver’s Certificates.
    Where a receiver of an insolvent corporation was appointed at the instance of a junior lien holder, and was authorized to borrow money and issue receiver’s certificates, the holders of such certificates were not entitled to a pri- or lien on the corporation’s assets as against a first mortgagee of the corporation’s property, who was not a party to the receivership proceedings, and was not shown to have had any knowledge thereof until the property had been taken by the receiver.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Digt § 566.]
    10.Appeal and Error (§ 835) — Rehearing —Review—Matters of Fact.
    An appellate court cannot consider matters of fact, recited in the motion for rehearing, not found in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. § 835.]
    Appeal from District Court, Brownsville County; W. B. Hopkins, Judge.
    Action between the Houston Ice & Brewing Company and W. B. Clint, as receiver. From an order granting a temporary injunction, restraining the receiver from selling any property of the Ice & Gin Company of Harlingen, Tex., until further order of the court, the Brewing Company appeals.
    Reversed. and remanded, with instructions.
    Baker, Botts, Parker & Garwood, of Houston, for appellant. I-Iarbert Davenport and James B. Wells, both of Brownsville, for ap-pellee.

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

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

   PLY, C. J.

This is an appeal from a temporary injunction, issued to prevent the sale of certain property consisting of a frame ice plant building, a frame gin building, a frame cold storage house, one Frick 20-ton ice machine and apparatus, one un-denground fuel oil tank, one three-stand Murray gin, with boiler’, engine, and gin machinery complete, situated on a tract of land belonging to the St. Louis, Brownsville & Mexico Railway Company, in the town of Harlingen, Cameron county, Tex. The sale enjoined was one sought under an order of sale issued out of the district court of Harris county, and was enjoined at the instance of appellee, who had been appointed receiver of the Ice & Gin Company of Harling-gen, which owned the property described.

In the order of the application for injunction it is recited that the court “was of the opinion that the same should not be granted,” which opinion is followed by this language: “But the clerk of this court is ordered and directed to issue a writ directed to the Houston lee & Brewing Company * * * and to its officers, attorneys, and employes, and to C. T. Ryan, sheriff of Cameron county, Tex., and his duly authorized deputies, commanding them and each of them to refrain and desist from selling any property of the Ice & Gin Company of Harlingen, Tex., or any portion thereof * * * pending the further order of this court.” No time was mentioned at which the restraining order should expire, and while not denominated an injunction, it is to all intents and purposes a temporary injunction. It does not come within that category of restraining orders that are discussed in the case of Cole v. Forto, 155 S. W. 350. In that case and those cases cited in support of it, the hearing on the applications for injunctions were set down for certain days, and the restraining orders expired at those times. The order in this case constituted a temporary injunction pure and simple, and the appeal was properly perfected therefrom. The motion to dismiss the appeal is therefore overruled.

A bill of exceptions is found in the record containing the facts pertinent to this appeal, which has been approved by the trial judge and agreed to as a statement of facts by counsel for both parties, from which it appears that one Charles T. Brown, a citizen of New York, filed a suit in the district court of Cameron county against the Ice & Gin Company, to collect a debt of $5,000, which was secured by a second mortgage of the property described, and asked for and obtained the appointment of a receiver for the property of the defendant. The petition admitted the existence of a debt for $12,100 and a mortgage on the property in favor of appellant, which it was alleged was “prior in point of time to the mortgage and equitable lien of plaintiff.” Appellee was appointed receiver on November 18, 1912, without notice to appellant, and took possession of the property. It is not controverted that appellant had a valid first lien on the property. The court authorized the receiver to borrow money, if the Income was insufficient to meet the operating expenses, and, as there was no income, of course it was insufficient, and to issue certificates in denominations of $1,000 from time to time. No limit was put upon such issuance, and the certificates were to bear 10 per cent, interest. The receiver issued at least two for $1,000 each, and besides incurred other debts amounting to $1,600. Appellant sued for its debt in Harris county and foreclosed its mortgage, and an order of sale was issued, which was restrained in this proceeding. The facts show that the plant was not being operated by the receiver, and that he could not operate it so that it would pay expenses.

It is the contention of appellee that, the property being in the hands of a receiver appointed by the district court of Cameron county, no sale could be made under the order of any other court without the consent of the court granting the receivership; that the expenses of a receivership constitute a lien upon the corpus of the estate superior to all other liens, and that the matters complained of should be adjusted on final judgment in the district court, and this court has no jurisdiction of the matter. All these issues are herein fully considered and disposition made of them.

By article 2135, R. S. 1911, old number 1472, it is provided that all moneys coming into the hands of the receiver shall be applied to six different purposes in their order, beginning with the payment of court costs and ending w.ith judgments obtained before the appointment of a receiver. The enumerated claims are those accruing during the pendency of the receivership, except the costs, and all of them are given a preference lien on the earnings of the receivership. It will be noted that no preference is given in the article cited in any property except moneys that come into the hands of the receiver, and no mention is made therein as to property on which there may be mortgage liens; the only claims that are given any preference over any mortgage lien being judgments rendered against the receiver for causes of action arising during the receivership which “shall be a lien superior to the mortgage lien.” Article 2138, R. S. 1911. “The mortgage lien” is not any and all mortgage liens, but must be some particular mortgage lien, and can refer to that mortgage lien alone mentioned in subdivision 2 of article 2128, wbicb authorizes the appointment of a receiver when a mortgagee seeks to foreclose his mortgage and sell the mortgage property. The judgment recovered against the receiver for a cause arising during the receivership arose out of the mortgagee’s receivership proceedings; he invoked the appointment of the receiver, and he must pay the penalty, hut the statute nowhere sanctions the doctrine that a first mortgage lien can be set aside for a receiver’s debts, who was appointed without the knowledge or consent of the first mortgage lien holder. The statute nowhere authorizes the confiscation of mortgaged property to pay certificates given by a receiver for debts created by him, and no court can by its orders or decrees make a first mortgage lien, held by a party who has not invoked a receivership, and is not a party to it in any manner, second to the claims enumerated in the statute. Such construction of the statute would be utterly destructive of the rights of first lien holders, and put them at the mercy of second mortgage lien holders, who might invoke the aid of a court in the appointment of a receiver. The whole corpus of the estate might be consumed in unnecessary expenses, and the careful lien holder, who “had laid the flattering unction to his soul” that the laws of his state would protect his lien against all claims, would find it absolutely destroyed, and his debt forever lost. If the receiver’s expenses would be superior to a first mortgage lien, they would have a preference over a vendor’s lien, and the vendor be deprived of his land to pay a receiver for whose creation he was in no wise responsible. If there should be any concert of action, by which one mortgagee had a receiver appointed with the acquiescence of others, all who engaged directly or indirectly in obtaining the receivership might in some respects see the value of their security impaired, but certainly not one who holds a first lien on the property for which a receiver is appointed, who takes no part in the receivership proceedings and is absolutely ignorant of them.

In the ease of McIlhenny v. Binz, 80 Tex. 1, 13 S. W. 655, 26 Am. St. App. 705, it is said: “Though the doctrine is of recent origin, it has become settled law in this country that in the final distribution of the assets of an insolvent railroad corporation, which has been placed in the hands of a receiver, there are certain claims against the fund which, under certain circumstances, are entitled to priority of payment over the debts of the corporation secured by mortgage upon its property.” The authorities cited .to support the proposition are decisions by the Supreme Court of the United States, and every one of them relating to railroad companies, and in cases in which the receiver-ships had been obtained by the mortgagees, and the preference is given on the income alone. As said by the Supreme Court in the case of Fosdick v. Schall, 99 U. S. 235, 25 Lt. Ed. 339: “When a court of chancery is asked by railway mortgagees to appoint a receiver of railway property, pending proceedings for foreclosure, the court, in the exercise of a sound judicial discretion, may, as-a condition of issuing the necessary order,, impose such terms in reference to the payment from the income during the receivership of outstanding debts for labor, supplies, equipment, or permanent improvement * * * as may, under the circumstances, * * * appear to be reasonable.” In the-Binz Case it was not contended that the-corpus of the estate could be used, although covered by a lien, to pay off the expenses of operating the receivership, but the question was as to the right of priority of payment, out of the earnings of the road while under the control of the court. While the claims in the Binz Case were not for operating expenses, but for labor performed just before the receivership was granted, the court placed them on the same footing as operating expenses, and, explaining the Binz Case, the Supreme Court, in Sullivan v. Briquette Co., 94 Tex. 541, 63 S. W. 307, held: “In that case this court held that a court of equity might apply the earnings of a railroad, while in the hands of a receiver, to the payment of claims for improvements made within a reasonable time before the receiver was appointed, in preference to the bond which held a first lien upon the road, but it was not asserted that such claims could appropriate the corpus of the property.”

In the case of Farmers’ National Bank v. Waco Electric Railway Co., 36 S. W. 136, the Court of Civil Appeals of the Third District, after stating that a certain line of decisions permitted the corpus of the estate to be used for expenses and given preference over the mortgage holders, at whose instance the receivership was granted, held: “A court administering the rights of litigants in accord with the principles of law and equity has no inherent right, simply by virtue of its judicial authority, to displace valid mortgage liens that are fixed upon the property, and' which is subject to the liens, and require that such liens shall be postponed to claims which were not in existence at the time the mortgage liens were created, or are not based upon some contract or provision of the law which gives them a prior right over the mortgage liens.”

In the case of Ellis v. Water Co., 86 Tex. 109, 23 S. W. 858, the statute of Texas as to preferred claims in a receivership is construed to give such claims preference over the claims of prior mortgagees and every one, and the language is so broad and unguarded as to cover the corpus of the estate as against all mortgagees, whether parties to the receivership or not. However, that ease was one in which the mortgagee had by intervention made himself a party to the receivership, and the authorities cited are those in which the mortgagees had procured the receivership. That case also extends the extraordinary powers exercised in railroad receiverships to all other cases in which a receiver can be appointed.

We are of the opinion that the Texas statute is merely declaratory of the rules as to receivers which have been applied for a long time both in England and America, and that we should, in passing upon property in re-ceiverships, be governed by well-established rules, and we find from them that the rights of first mortgage lien holders are carefully guarded from second or inferior lien holders, and the authority denied them to cast property into the hands of a receiver, and practically consume the security of the first lien holder in costs and expenses incurred by an extravagant and reckless receiver. In section 553, p. 604, Beach on Receivers, it is said: “The general rule that a receiver will not be appointed in favor of one incumbrancer in such a way as to affect the prior rights of another, or others, applies to equitable in-cumbrancers and creditors, as well as to the -case of mortgagees at law. A court will appoint a receiver of property in favor of equitable creditors, although a legal creditor might obtain execution against it. The appointment is always made without prejudice to prior vested rights; and, where all the incumbrancers have equitable liens, a reference may be directed in order to determine such priorities; if legal they are to be remitted to a court of law.”

This is a receivership obtained by a junior mortgagee, without making the prior mortgagee a party, and of course without any notice to such mortgagee. It is an action not justified or authorized by the statute, except under subdivision 4, which authorizes the appointment of a receiver “in all other cases where receivers have heretofore been appointed by the court of equity.” The appointment of the. receiver must be governed by the established rules in equity courts applicable to junior mortgagees. One of those rules is that “when the first mortgagee has not taken possession of the property, equity may properly interfere in behalf of subsequent mortgagees or equitable incumbranc-ers and creditors, and may appoint a receiver for their protection, but without prejudice to the rights of the first mortgagee.” High on Receivers, § 682. No rule, consistent with justice and equity, can be formulated that will contravene the terms of the rule stated. To deny its authority is to trample upon, and often absolutely destroy, property rights. In the petition for the appointment of a receiver it was not alleged that the first mortgagee was doing anything to impair the value of the property or was conspiring with the mortgagor to defeat subsequent creditors. The first mortgage was admitted to be valid and subsisting, and appellant was not made .a party to the proceedings. So far as appellant was concerned, there was no necessity fori a receivership, and it is admitted in the petition that the defendant in the receivership proceedings was insolvent, that the mortgage of appellant is superior to that of the applicant' for the receivership, and that the mortgaged property “is probably insufficient to discharge the said mortgage debt.” It was a practical admission that the second mortgagee1 had no interest in the estate, and could not anticipate any payment on his debt from the administration of the estate. The facts set out in the statement of facts show that the receivership was granted on November 18, 1912, that the plant in controversy has been idle since that time, and could not be operated to pay operating expenses, but on the other hand, the receiver had already expended $2,000 on the plant, and had incurred for his compensation and that of attorneys the sum of $1,600, aggregating the sum of $3,600, indebtedness already incurred. At the same rate it is clear that the whole corpus of the property would soon be consumed, and the first mortgage lien holder left with no security whatever.

In a case similar to this, wherein the creditors obtained a receivership on property not of value more than a mortgage thereon, the Supreme Court of Georgia held that the mortgage holders, who were not parties to the receivership proceedings, were not chargeable with the expenses incurred by the receiver. Lewis v. Edwards, 92 Ga. 533, 17 S. E. 920. After approving the deceison in that case, the Georgia court, in Bradford v. Cooledge, 103 Ga. 753, 30 S. E. 579, held: “If we apply this proper and just principle to the facts in this case, it must be held that so much of the funds in the hands of the receiver realized from the sale of the mortgaged property as was necessary to pay off the amount due on the mortgage cannot be diminished by the costs of the case and expenses of the receivership, or any proportion thereof, and that so much of such costs and expenses as could not be met by the general fund arising from the sale of the property of the debtor in excess of the amount due on the mortgage, or not covered by the mortgage lien, should properly have been taxed against the plaintiffs. As to the mortgage creditor in this case, there was no necessity for the receivership; and, in the preservation of her lien as required by law, she must be treated as having a superior right to an appropriation of the proceeds arising from the sale of the mortgaged property to the full extent of the amount due thereon; and it would, under the facts as they appear, be inequitable to charge her with any of the costs or expenses in this case.” The facts in the Georgia case were quite similar to those in this case.

In the case of Raht v. Attrill, 106 N. Y. 424, 13 N. E. 282, 60 Am. Rep. 456, a court had sought to operate an insolvent concern, with the result of an issue of receiver’s certificates amounting to about $400,000, and a sale of the property for $86,000; there being debts against it amounting to $800,000. A large amount of the money obtained on the certificates was used in improving the property, but it was held that the lien of a mortgage attached, not only to the land on which it existed at the time of its execution, but as changed by the improvements, and that the claims of creditors for money, labor, or material used in improvements acquired no lien, legal or equitable, superior to the mortgage lion.

The case of Dalliba v. Winschell, 11 Idaho, 364, 82 Pac. 107, 114 Am. St. Rep. 267, was one in which a receiver was appointed for a mine, and it was held: “It is clear to us, however, that a court of equity has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and when it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property, to the prejudice and loss of the holders of prior recorded liens on the same property.”

In the case now before us the ginning season was over and ice would not be at a premium, and yet in that dull season for cotton and ice, repairs were made amounting to at least $2,000. There could be nothing in sight for the manufacture of ice and ginning of cotton for many months ahead, and yet expenses were incurred that would cut off nearly» one-third of the corpus of the estate.

The consensus of opinions in the United States is opposed to destroying the mortgage lien of a person not a party to receivership, and to the consumption of the mortgaged property in paying the expenses of a receiver not desired by the mortgagee. There can therefore be no justification of such a course unless the Texas statute has declared that the lien on property mortgaged must be relegated to a place in subordination to the expenses of a receivership to which the mortgagee was not a party, and of which he had no notice. No such provision can be found in the statutes of Texas, and the only lien given in favor of the six preferred claims mentioned in the statute is “on all of the moneys coming into the hands of the receiver which are the earnings of the property in his hands.” It is further provided in the statute (article 2135, R. S. 1911) that “the court shall see that the money coming into the hands of the receiver as earnings of the property in his hands is paid out on the claims against said receiver in the order of their preference as named above.” There is no lien given on the corpus of the property to secure the statutory preferred claims, and in order to ascertain the existence of any such lien resort must be had to the rules of equity, relating to the appointment of receivers, their powers, duties, and liabilities, and the powers of the court in relation thereto. Article 2155, R. S. 1911; Falfurrias Im. Co. v. Spielhagen, 103 Tex. 339, 127 S. W. 164. When we consult those rules we find, as hereinbefore indicated, that such preferred claims will not have a lien on the property of the person over whose estate a receiver has been appointed, superior or equal to that of a prior mortgagee who was not a party to the receivership proceedings. That rule is founded on the highest principles of morality and justice, and is the natural outcome of laws for the protection of contract and property rights. As said in the cited New York case of Raht v. Attrill: “It is best for all that the integrity of contracts should be strictly regarded and maintained, and that a rigid, rather than a liberal, construction of the power of the court to subject property in the hands of receivers to charges, to the prejudice of creditors, should be adopted.” A strained or sublimated construction will not be placed upon the terms of the statute relating to receivers, but it will be reasonably construed, and no powers given or rights created unless they are plainly expressed therein, especially when to give them will be to impair the obligations of prior contracts and destroy or weaken prior property rights.

As said by the Supreme Court of Oregon, in the case of U. S. Investment Co. v. Portland Hospital, 40 Or. 523, 64 Pac. 644, 67 Pac. 194, 56 L. R. A. 627, when the property of lien holders not parties to a receivership suit was sought to be subjected to certain claims: “The receiver was not appointed at their request, nor upon their application, nor was there anything in the receivership proceedings to indicate to them that it was the intention to charge the mortgaged property with a preferred lien for debts contracted by the receiver. Where a mortgagee procured the appointment of a receiver, with power and authority to operate and conduct the business of the mortgagor, he cannot object to the payment of the expenses incurred for such' purposes in preference to his lien. * * * But where the appointment is not made upon his application he has a right to insist that the debts contracted by the receiver shall not take precedence over his lien, although he may be a party to the suit in which the receiver was appointed.”

Even if the statutes of Texas atte'mpted, as they do not, to set aside rights acquired under contracts, for debts contracted by a receiver, it would be in derogation of the Constitution of the United States, which provides that no state shall pass any “law impairing the obligations of contracts.” If mortgaged property can be consumed by the debts of a receiver, appointed without the knowledge of the mortgagee, in a proceeding to which he was not a party, any law authorizing such procedure would not only impair, but absolutely destroy, the obligation of tile contract. It is not so expressed in the statute, and the Legislature' never intended that it should be done, and the law thereby made an engine of destruction against which there would be no defense, or from which there would be no escape. As said by the federal court in the case of Hanna v. Trust Co., 70 Fed. 2, 16 C. C. A. 5S6, 30 L. R. A. 201: “If it were once settled that a chancery court, through a receiver appointed on the petition of a junior mortgagee, could carry on the business of such insolvent corporations at the risk and expense of those holding the first or prior liens on the property of the corporation, such liens would have little or no value.” If one-third or one-half of the value of the mortgaged property is consumed in five or six months, an early consumption of the whole body of the estate is not only possible but probable. The broad proposition laid down in Ellis v. Water Company, 86 Tex. 109, 23 S. W. 858, that the expense of administering the estate is to be charged first upon the net income, and if that be not sufficient, then upon the property itself or its proceeds upon sale, if it is intended to be applied to first mortgage lien holders who are not parties to the receivership proceedings, is not supported by statute or well-considered decisions, and such a rule would result in promoting fraud and utterly dismantling the protection thrown about property rights by constitutions and statutes. The decision in that case must be confined to the facts which show that the mortgage holders were parties to the suit. The statute neither directly nor by implication gives any lien on the corpus of the estate for the six claims named as being preferred claims, and courts have no authority, either upon general principles of equity or from the statute, for announcing a contrary doctrine. The proposition on which the decision in Ellis v. Water Co. is invoked by appellee is utterly at variance with the statement made in the opinion that “the receivership does not destroy any liens that may have been acquired before the appointment.” The Ellis opinion seems to have rested on the assumption that the public had an interest in the waterworks system, but no such plea can be sustained in this case. The chances are there was only one such water system in the community, in which every one would be interested, as every one uses water to a greater or less extent, but not so with a gin or ice plant. There might be several of them, and many people would have no interest whatever in them.

The proposition advanced in this opinion in regard to mortgaged property not being subject to the expenses of a receivership to which the mortgagee is not a party is sustained in the ease of Houston Ice Co. v. Puller, 26 Tex. Civ. App. 239, 63 S. W. 1048. In that case it was held: “We are of the opinion that the court erred in adjudging the expenses of the receivership to be a superior-lien to the appellant’s mortgage. The receivership was not ordered at the suit of the-appellant, and it would be inequitable to exhaust his security with the expenses of a receivership taken out at the instance of other parties. High, Rec. § 796, p. 730. Rev. St. art. 1472, has application where the-receivership is at the instance .or for the-benefit of the lien holder.” That proposition is supported, not only by the authorities-hereinbefore cited, but many others, and is-founded upon the rules of honesty and justice. Beach on Rec. §§ 402, 414, pp. 426-440; Union Trust Co. v. Railway, 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963; Meyer v. Johnston, 53 Ala. 237. The last case, as well as the case of McLane v. Railway, 66. Cal. 606, 6 Pac. 748, is cited to sustain the-proposition enunciated in the Ellis Case, but both of them were cases in which the mortgagees sought the receivership. As said by Beach'in the citation last made: “Receiver’s-certificates do not in any particular affect the rights of lien holders who are not parties or privies to the receivership proceedings.. It is one of the elements supporting the-doctrine, and a strong reason for the exercise of the power to issue certificates, that those who cause the property to be placed in the custody of the court are to be considered as consenting to whatever may be necessary to preserve and protect it.” The power to, issue such certificates is a dangerous one,, often, as has been well said, being “merely a license to do mischief.” Making such certificates a lien on the corpus of property of mortgagees invoking a receivership is as far as any court of equity should ever go; the justification for that being that they who, litigate must pay the costs.

In this case the applicant for the receivership had no interest in the property except in so far as there might be a surplus after paying off the first lien, and he had no right, and could not be endowed with the right by the court, to needlessly sacrifice the property of the first lien holder. Under the allegations of the petition for the receivership, the court should not have entertained the suit, which could result in nothing but an impairment or sacrifice of the mortgaged property. Galvin v. McConnell, 53 Tex. Civ. App. 486, 117 S. W. 211; Bank v. Campbell (Sup.) 140 S. W. 430.

On December 14, 1912, about a month after the receiver was appointed by the district court in and for Cameron county, appellant filed suit in the Eifty-Eifth district court of Harris county on three notes, amounting in the aggregate to $12,100, and asked for and obtained a judgment for the amount, together with a foreclosure of the lien on the property in question. The defendants in the case were A. L. Strang, the Ice & Cin Company of Harlingen, Charles T. Brown, who applied for the receiver, and W. B. Clint, the receiver of the Ice & G-in •Company. The judgment was rendered on .March 10, 1913. Under the provisions of .article 2146, R. S. 1911, the suit against the receiver was fully authorized without leave of the Cameron county district court. The judgment was therefore regular and valid. That article further provides that if a .judgment is recovered against the receiver, it shall be the duty of the court, doubtless the one in which the receivership is pending, to order the receiver to pay the judgment out of any funds in his hands. The judgment being valid the only question that could arise would be as to the method of satisfying it.

There is no authority for the seizure of the property under execution. Harrison v. Waterberry (Sup.) 27 S. W. 109. It follows that the writ restraining the sale of the property under execution was properly granted, but as appellant, in connection with the injunction proceedings, applied to the court for a-sale of the property, that application should have been granted. Appellant submitted itself fully to the jurisdiction of the court, and showed to the court all of the circumstances and conditions surrounding the property, and that it should be sold, and no reason appears why it should not be sold by the sheriff. It should be a question of costs alone, and appellant should be given the benefit of that method which will cost the least money. The salé made by the sheriff would be valid, and the court can so direct it. Beach, Rec. § 223, p. 214; Ellis v. Water Co., 86 Tex. 115, 23 S. W. 858; Walling v. Miller, 108 N. Y. 173, 15 N. E. 65, 2 Am. St. Rep. 400.

It appears from the facts in this case .and the admissions of Brown, who caused the receiver’s appointment, that the property will not more than pay off the first mortgage, and it clearly appears that the property, instead of producing an income, will -eventually consume itself, and there is no justice or equity in continuing the receivership, but the land should be sold and the proceeds applied first to the payment of the costs of the suit in Harris county and the principal and interest of appellant’s debt, and the remainder, if any, to be placed in the hands of the receiver to be expended as directed by the court. Abbey v. Railroad, 5 Tex. Civ. App. 261, 23 S. W. 934; Scott v. Crawford, 16 Tex. Civ. App. 477, 41 S. W. 697.

The statute (article 4654, R. S. 1911) requires that before the issuance of the writ of injunction a bond shall be given by the party applying for the same. There is only one exception to that requirement, and that is in case where the state is the complainant. It may see anomalous to require an officer of the court to give the bond in question when the property is in custodia legis, but "that is a matter addressed to the legislative vrather than the judicial branch of the state government. Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 430. While it was unnecessary to issue the restraining order after the execution creditor had submitted itself to the jurisdiction and prayed that an order of sale be issued, yet if it had been necessary and proper, it should not have been issued until a bond was given by the receiver; and the failure in this case to require the bond renders the writ invalid. The court could by contempt proceedings have protected the property from seizure, but when the remedy by injunction was invoked the receiver, like any one else, should have been required to give a bond. He is required to give bond on appeal, and the reasons for exempting him in that case would be as strong as exempting him in cases of injunction. Article 2144, R. S. 1911.

The restraining order will be set aside, and the cause remanded to the district court, with instructions to grant the prayer of appellant for a sale of the property, and that the court issue an order to the sheriff of Cameron county to sell the property in controversy, after due and legal advertisement, and that the proceeds of such sale be applied first to the payment of the judgment, interest, and costs of the Harris county district court, and that the balance, if any, be delivered into the hands of W. B. Clint, receiver, to be expended under the orders of the court.

Reversed and remanded, with instructions.

On Motion for Rehearing.

Appellant was not a party to the receivership proceedings, nor was it shown that it had any knowledge of such proceedings until the property had been taken possession of by the receiver. It then sued to foreclose its lien and made the receiver a party to the suit. The parties to whom the certificates were issued were put on notice by the receivership proceedings that appellant had a prior superior lien on the property. No authority has been cited that holds that the mere discovery that a receiver had been appointed would estop a lien holder from asserting his lien as against the holders of receiver’s certificates. The authorities cited by appellant make no such holding. In all those cases the lien holders were parties to the receivership proceedings.

As said in Kneeland v. Luce, 141 U. S. 491, 12 Sup. Ct. 32, 35 L. Ed. 830: “The bondholders had no legal mortgage thereon, but only an equitable lien. The bondholders, who now object to the priority of the receiver’s certificates, were parties to the suit in which the decree was rendered, by their trustees and committee. No appeal was taken from that decree, nor were any steps taken to set it aside. * * * Under all the circumstances of the case, the bondholders are precluded from claiming priority over the receiver’s certificates, which were issued for the purpose of preserving the mortgaged property.”

In the case of Union Trust Co. v. Illinois Mid. R. R. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963, it was said: “As to receiver’s certificates issued, with the sanction of the court, after the trustees become parties, the purchasers and holders should be accorded such rights as, by the settled principles of equity, are accorded to those who 'deal with judicial tribunals having jurisdiction in the premises.”

If there were “many interveners, having secured and unsecured claims,” as stated by appellee, the record in this case fails to disclose that fact.

There is a statement of facts in this record, agreed to by the parties and approved by the court, from which this court obtained the facts found by it, and not from any “ex parte statement of the mortgage creditor.” In that statement it appears that the debt due to appellant was for the purchase money of the property held by the receiver, and that the property was covered by a mortgage lien in favor of appellant to secure the payment of the purchase money, and that any other lien on the property “was subordinate and junior to that lien.” It is further stated in the statement of facts “that the Houston Icé & Brewing Company was not made a party to the suit.” There is nothing in the record to support the assertion that “each separate piece of machinery” is mortgaged, “and the mortgage held by as many different persons.” On the other hand, the record shows only two mortgages on the property, the first held by appellant and the second by the man who induced the appointment of a receiver.

Of course this court cannot consider matters of fact recited in the motion for rehearing, but not found in the record, and this court is impelled to the view that the property has been managed so as to incur a heavy debt by the facts of the case as presented by the record. It is stated in the bill of exceptions, which is by agreement made the statement of facts, “that the income from said plant was in fact insufficient to pay the expenses of operation,” and, in running the plant and mating repairs, attorney’s fees, and compensation for the receiver, had amounted to $1,600. It further appears from the statement of facts: “That on May 14, 1913, and for a considerable time prior thereto, the said Glint, receiver, had ceased operating the Ice & Gin Company of Harlingen, and that said plant has been and is now idle. That the said receiver was unable to operate said plant so that it would pay operating expenses.” This may not be “bad management” of the property, but it is certainly management which will result in disaster to the interests of appellant. With such management it is only a question of time when the property will be consumed in expenses.

The motion for rehearing is overruled.


author: HENDBIOKS, J.

text:
    SMITH v. GUERRE.
    (Court of Civil Appeals of Texas. Amarillo.
    May 28, 1913.
    Rehearing Denied June 14, 1913.)
    1. Witnesses (§ 217) — Privileged Communications — Communications Between Attorney AND CLIENT.
    A client’s privilege as to confidential communications between him and his attorney may be claimed by his heir in a proper case until waived.
    TEd. Note. — For other cases, see Witnesses, Cent. Dig. § 780; Dec. Dig. § 217.]
    2. Witnesses (§ 2Ó6) — Communications Between Attorney and Client in Presence oe Third Person.
    The testimony of an attorney as to what took place at a meeting between him, his client, a third person, and the third person’s attorney was not incompetent as relating to a confidential communication, in a suit between his client’s heir and the third person, based on a contract executed at such meeting.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 761, 764, 765; Dec. Dig. § 206.]
    3. Witnesses (§ 198) — Communications Between Attorney and Client — Attack on Attorney’s Fidelity.
    Where in an action on a contract an attorney’s fidelity, in the transaction in which such contract was executed, was attacked, the attorney could testify to the facts so far as necessary to defend his character, notwithstanding the rule against the disclosure of confidential communications.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 747, 748, 753; Dec. Dig. § 198.]
    4. Witnesses (§ 198) — Communications Between Attorney and Client — Attack on Attorney’s Fidelity.
    In an action to foreclose a vendor’s lien, it appeared that plaintiff and defendant’s deceased husband entered into a contract for the exchange of lands, and that the husband subsequently brought suit for specific performance thereof, which was compromised by the execution of a new contract, as a part of which the vendor’s lien notes were given. Defendant sought to rescind the contract on the ground of her husband’s insanity, and also attacked the fidelity of her husband's attorney in the negotiations leading up' to the compromise contract, but did not question his actions prior to the filing of the suit for specific performance. Held, that letters written the attorney by the husband before the institution of the suit for specific performance were not admissible in evidence, under the rule that an attorney may disclose confidential communications where his fidelity in the transaction is questioned.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 747, 748, 753; Dec. Dig. § 198.]
    5. Witnesses (§ 158) — Statements of Deceased Persons — Competency to Prove Mental Condition.
    The statutory rule excluding evidence as to statements by, or transactions with, a deceased person did not prevent evidence of the statements of a deceased person for the purpose of showing his mental condition, in an action in which his competency to contract was involved.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 663, 665, 698, 699; Dee. Dig. § 158.]
    6. Trial (§ 255) — Instructions—Necessity oe Requests.
    Where, in an action to foreclose a vendor’s lien on land received by defendant’s, deceased husband on an exchange of lands, defendant sought to rescind on the ground that her husband was insane, and plaintiff replied, alleging ratification by the husband at a time when he was competent to contract, the trial court’s failure to charge on ratification was not error, where no instruction was requested, since an instruction as to a distinct independent issue, pleaded in avoidance of the main issue, need not be given unless requested.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    7. Insane Persons (§ 79) — Contracts—Bat-IFICATION.
    The contracts of an insane person are voidable only, and may be ratified by acts done at a time when such person has mental capacity to make a contract clearly evidencing his intention to be bound thereby.
    [Ed. Note. — For other cases, see Insane Persons, Gent. Dig. §§ 138, 141; Dec. Dig. § 79.]
    8. Descent and Distribution (§ 148) — Actions— INSTRUCTIONS — BATIFICATION .
    In an action to foreclose a vendor’s lien on lands received by defendant’s deceased husband on an exchange of lands, where defendant sought to rescind on the ground of her husband’s insanity, an instruction as to the ratification of the contract by defendant after her husband’s death, which omitted the essential element of knowledge of previous condition, was properly refused.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 514^516; Dec. Dig. § 148,]
    9. Insane Persons (§ 66) — Contracts—BAT-IFICATION.
    Where, after the death of an insana person who had made an exchange of lands, his widow and heir dealt with the property received by him by releasing it or changing its status, with full knowledge of the material facts and circumstances connected with the contract and its execution, the contract was ratified by her, and the right of rescission lost.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    10. Descent and Distribution (§ 148) — Actions — Batification—Questions for Jury.
    In an action to foreclose a vendor’s lien on land taken by defendant’s deceased husband on an exchange of lands, where defendant sought to rescind on the ground that her husband was insane, and the evidence showed that after his death she retained possession of the land, and collected rents from a tenant let in upon the property by the husband in his lifetime, as she .claimed, merely until she could make a settlement with plaintiff, and with a willingness to do equity, it was a question for the jury whether she elected to retain the property with knowledge of the facts, and thereby ratified her husband’s contract and lost the right to rescind.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 514-516; Dec. Dig. § 148.]
    11. Evidence (§ 471) — Conclusions—Evidence of Insanity.
    The mere general declaration of a witness as to the correctness or incorrectness of another’s ideas of values, without further testimony as to the conditions, was not proper testimony to prove such other’s insanity.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471 ; Witnesses, Cent. Dig. §§ 833-836.]
    Appeal from District; Court, Bandall County; J. N. Browning, Judge.
    Action by S. H. Smith against Mollie C. Guerre. Judgment for defendant, and plaintiff appeals.
    Eeversed and remanded.
    Gustavus & Jackson and A. S'. Bollins, all of Amarillo, for appellant. Madden, Trulove & Kimbrough, of Amarillo, for appellee.

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

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

   HENDBIOKS, J.

S. H. Smith sued Mollie C. Guerre, surviving widow and only heir of E. B. Guerre, deceased, upon certain notes, and to foreclose a vendor’s lien, and upon an assumption of another debt and lien upon certain land in Bandall county. The-record discloses that Smith and E. B. Guerre, during the latter’s life, had a transaction involving- the exchange of some land in Missouri owned by Guerre, for some land in Bandall county owned by Smith, which resulted in the institution of a suit for specific performance by Guerre against Smith, and which suit resulted in the execution of a compromise contract on 'September 27, 1910, followed by the execution of deeds, exchanging the land, on October 15, 1910, Guerre agreeing to take more land in Texas than by the terms of the first trade, and the latter, with his wife and defendant in this suit, executing the vendor lien notes sued upon. Mrs. Guerre, the defendant in the trial court and the appellee in this court, pleaded her coverture and the insanity of her husband, existent at the time of the execution of the contract, as well as the vendor lien notes sued upon, and that the property obtained by plaintiff exceeded in value the property received by them in said trade, praying for a rescission and a judgment for a difference in the value' of the property, to which plaintiff replied, alleging the prior transactions between himself and the deceased, Guerre, and averring that the notes were the result of a fair compromise, and that if the husband of defendant was insane at the time he signed the compromise contract and notes, he ratified the matter before his death, and that his widow, the defendant, also ratified the transaction after the death of her husband. Verdict and judgment were rendered against appellant, plaintiff in the lower court, canceling the contract and notes, and for the sum of $1,270.12, in favor of appellee, the difference in the value of the two properties embraced in the trade.

The testimony of appellee in the trial of this cause, and her pleadings by implication at least, attacked the fidelity of the attorney who had represented her husband in a professional capacity in the matter of the compromise negotiations at the time of the execution of the compromise contract.

During the pendency of the negotiations, and at the time of the execution of the compromise contract, Guerre, the deceased, and his attorney, Smith, the appellant, and his attorneys were at the latter’s office, and the testimony of Guerre’s attorney, proffered • by appellant, extracted from appellant’s bill of exception, was excluded by tbe trial court on tbe ground that said testimony consisted of confidential communications between attorney and client, and wbicb offered testimony is as follows: “While at said office and in tbe presence of tbe above-named parties a number of things came up to be adjusted; tbe premiums on tbe insurance that had been paid in advance on tbe improvements; tbe question of tbe rents that would be due on (to) each of tbe parties; the payment of taxes for the year on tbe properties; tbe question of tbe incumbrance to be assumed by Smith against tbe Missouri land, and the amount to be paid Smith in the notes be was getting from Guerre; the assumption of tbe $1,850 note, already against section 100; the rate of interest; tbe time tbe deferred notes were to run, and which half of the section Guerre would get; tbe location of tbe bouse; and, well — in tbe discussion of all these matters, Mr. Guerre toolr part freely. I distinctly remember, during tbe discussion of wbicb half of tbe section Mr. Guerre was to get, that be said; What about that bouse? It has been blown or moved from tbe quarter I was getting. Is it still on tbe section? You know there has been some question as to whether that bouse and well were on tbe northwest quarter or across the line of tbe northeast quarter, but I was to have tbe bouse, and I understood tbe well, too, was on that quarter. I want to be sure of that.’ Mr. Smith said that be understood all along that tbe well and tbe bouse were to go to Mr. Guerre, and that tbe bouse be moved onto either half of tbe section be took. After considerable discussion, it was agreed that Smith should convey to Guerre tbe north half of said section, so that there would be no question about tbe well being on tbe land conveyed to Guerre. Mr. Guerre took part in a similar manner at that time, in discussing all tbe details of the trade. I don’t recall so nearly tbe language used by Mr. Guerre, in discussing tbe other details; doubtless becausei this was the first time I bad beard a discussion of tbe location of tbe well and bouse. He discussed all tbe matters intelligently, and seemed to fully understand them.”

First. Mr. Wigmore, in bis work upon Evidence, vol. 1, § 2291, says that tbe policy of the) privilege is founded upon tbe principle that “in order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by tbe legal advisers must be removed,” except upon tbe client’s consent; and it is also tbe rule that the heir of tbe client may claim the privilege in a proper case until waived (Emerson v. Scott, 89 Tex. Civ. App. 67, 87 S. W. 369, and authorities cited), and true that Mrs. Guerre, tbe appellee herein, is treated in this litigation in tbe capacity of an heir. It is to be noted, however, that tbe rejected testimony of the attorney in this matter was in regard to statements made by bis client in tbe presence of the other party to tbe disputed transaction and bis attorney, and the bill imports that a part of his statements were directly addressed to Smith, with whom ne was dealing in tbe matter of the compromise. The New York Oourt of Appeals, in tbe case of Britton v. Lorenz, reported in 45 N. Y. 51, announces this exception to tbe rule applicable to an attorney’s testimony of¡ this character: “Tbe rule deducible from* the authorities is that all communications made by a client to bis counsel, for tbe purposes of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid; that where tbe communications are made in tbe presence of all tbe parties to tbe controversy, they are not privileged, but tbe evidence is competent between such parties.”

Tbe case of Murphy v. Waterhouse, decided by tbe Supreme Court of California, and reported in 113 Cal. 467, 45 Pac. 866, 54 Am. St. Rep. 367, announces tbe same rule, quoting Hughes v. Boone,, 102 N. C. 137, 9 S. E. 286, decided by tbe 'Supreme Court of North Carolina, to tbe same effect, also quoting Greenleaf on Evidence, vol. 1, § 245, “that an attorney may be compelled to disclose a statement made by him (tbe client) to tbe adverse party.”

Again, where an attorney’s fidelity as to a transaction has been attacked, with tbe imputation that be has been unfaithful to tbe interests of bis client, it would be a harsh rule to permit testimony by tbe client, or bis heir, in a cause, spread upon tbe public records, of this character, and not to permit tbe attorney to explain. Tbe rule is settled by all tbe authorities that in litigation between tbe client and bis attorney, tbe attorney, of course, has tbe right to make a full disclosure bearing upon the litigation, for tbe purpose of defending bis property rights; a defense of character, where publicly attacked is just as important, and to some more so, than property rights; it would violate a principle of natural justice and inherent equity to say that tbe right of tbe attorney’s defense is merged in a privileged communication when tbe client himself makes a public accusation (tbe relationship between client and attorney, having been private as to that particular matter, has become public by tbe act of tbe client) the spirit of tbe rule ceases when tbe client charges tbe fraud; tbe client’s right, of course, to be safeguarded by tbe court as to tbe admission of this character of testimony —and, as stated by tbe Supreme Court of Nevada, in tbe ease of Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 552, where the attorney was suing the client, “he should not, however, disclose more than is necessary for bis own protection”; and hence Judge Freeman, in bis notes to O’Brien v. Spalding, 66 Am. 'St. Rep. 241, announces the rule, as to tbe testimony of an attorney, when tbe litigation is in this condition, as follows: “The object of the rule ceases, and the attorney is no longer bound by his obligation of secrecy, when his client or his representatives charge him, either directly or indirectly, with fraud or other improper or unprofessional conduct, and he may testify as to the facts.” The cases of Hunt v. Blackburn, 128 U. S. 464, § Sup. Ct. 125, 32 L. Ed. 488, and State v. Madigan, 66 Minn. 10, by the Supreme Court of Minnesota, also reported in the 68 N. W. 180, bear out Judge Freeman as to the principle announced, the other cases cited by him are not accessible to us. See Am. & Eng. Enc. of Law, vol. 23, p. 79, to the same effect. We think the testimony of the attorney was admissible, and sustain the appellant’s sixth assignment of error, with reference to this matter.

Second. The appellant’s seventh assignment of error, with the proposition thereunder, also attempting to apply the principle that the attorney should be permitted to testify concerning transactions in which his fidelity is questioned, should be overruled. The testimony offered consisted of letters written by the deceased, Guerre, to his attorney, in December, 1909, a short time subsequent to the first trade, and before the suit for specific performance was brSught by Guerre against Smith, and filed by this particular lawyer; and said letters were written nearly a year before the compromise contract between Smith and Guerre was executed in September, 1910. The reading of the letters in question indicates that they are of a confidential nature with reference to the first trade, and contain matter applicable to that contract, and indicate by inference a prospective lawsuit, and the bill of exceptions does not disclose that the admission of the letters would be material to a justification of the attorney; his actions prior to the filing of the suit do not seem to be questioned. The first reason advanced by us in the discussion of the sixth assignment, for the admission of the testimony of this attorney, bearing upon the negotiations at a time when all were present, is not applicable to the admission of this character of evidence ; and the testimony of Mrs. Guerre, the appellee, attacking this attorney, is referable to the action of the attorney at the time the compromise contract was made, and it would be by remote inference only that his conduct, prior to the time of the institution of the suit, is questioned. This attorney had testified: “I was employed to file the suit for specific performance some time in December, 1909. * * * A long time after I instituted the suit negotiations began for the second contract. The negotiations for the second contract only began two or three days before it was consummated.” The letters attempted to be introduced are clearly referable to, and are of a confidential nature regarding the first contract and matters pertaining thereto, and written at a time when the conduct of this attorney could not be questioned, and does not in this record seem to be questioned; hence the second reason invoked by us with reference to the admissibility of the attorney’s testimony, raised by the sixth assignment, is not applicable, and appellant’s seventh assignment of error is overruled.

Third. The appellant, by his fifth assignment, challenges the action of the court in admitting the testimony of Mrs. Guerre with reference to certain statements made to her by her deceased husband, on the ground of the statute excluding statements of, or transactions with, the deceased; also upon the ground that the statements were purely hearsay and not admissible for any purpose. The court admitted the testimony for the purpose of showing the mental condition of the deceased, and of course if competent for any purpose, could only be admissible upon that ground; if not competent to prove insanity in this character of litigation, it would not require the statute, invoked by appellant in his first proposition, to reject the testimony—the objection that it was hearsay testimony would be sufficient. Rankin v. Rankin (Sup.) 151 S. W. 529. The question is, if otherwise competent to prove insanity, would the statute invoked by appellant exclude the testimony, declarations of a deceased person offered by party to a suit to whom the statements were made?

The Supreme Court of Minnesota, in the case of In re Brown, 38 Minn. 112, 35 N. W. 727, held that the declarations of a testator, offered for the purpose of proving the mental condition of the latter at the time of the execution of a will, were not excluded by a similar statute, the court announcing that the testator’s “verbal acts were, equally with his physical acts, competent for the purpose of proving the mental condition of the testator,” and we are inclined to follow the rule announced by that court, and upon that proposition, without going into other legal phases of this question, overrule the assignment.

Fourth. The appellant’s assignments upon the matter of ratification, pleaded by him, are overruled for the reason that, while the evidence was sufficient to raise the issue to the jury as to the deceased’s adoption of the contract at a time when he was conscious of its provisions and its legal effect, however, appellant did not submit an appropriate special charge upon the subject. We are unable to find a case in point in this state where ratification is pleaded, but not charged upon by the trial court, and in the proceeding the complaining party has not offered to assist the court with reference to the matter, but reference to the case of Harrell v. Houston, 66 Tex. 280, 17 S. W. 732, by the Supreme Court, analogously bearing upon the question of a distinct issue pleaded by defendant, ignored by the court, and considered error, ■“though not such as to require a reversal of the judgment, as no special charge was asked to cure the omission” — and of course we are confining the rule to a distinct independent issue pleaded in avoidance of the main issue, without going into the refinement of the different cases discriminating their difference, where it is error in some cases for the trial court not .to instruct the jury, and in others only one of omission, where there has been a failure in this respect, and the litigant has not seen fit to assist the court.

In this state it is thoroughly settled that the contracts of an insane person are only voidable, and voidable obligations “may at any time be ratified, and thereby the right to avoid them be lost.” Ry. Co. v. Brazzil, 72 Tex. 239, 10 S. W. 406, and in view of another trial we quote further from the Supreme Court in that case that, if Guerre “by his acts, done at a time when he had mental capacity to have made a contract, * * * clearly evidenced his intention to be bound by the contract he had made, then he ought to be held bound, and no subsequent change of intention ought to affect the rights of the parties. Consent to be bound by a contract only voidable is ratification, however that consent may be shown.”

Fifth. Upon the question of ratification of the widow, the essential elements of knowledge of previous conditions is entirely lacking from appellant’s requested charge refused by the court, and hence properly refused. “Knowledge of all material facts and circumstances is an essential element of an effective ratification.” First Am. & Eng. Ehe. of Law (2d Ed.) p. 1189.

The acts of affirmance manifested by Mrs. Guerre, and relied upon by the appellant as indicating a ratification of the original contract, and the notes sued upon, consist in her possession of the property and the collection of the rents subsequent to her husband’s death. Adverting to the testimony for the purpose of clarifying the issue, upon her part it suggests a holding of the property until she could make a settlement with appellant; and, while she collected the revenues off the place (rented by her husband) during the interim between her husband’s death and the institution of this suit, there was some testimony of negotiations during this same period of a settlement of this particular matter, Mrs. Guerre contending she would not stay with the trade.

Connected with this matter of ratification the kindred but converse question of rescission arises. If she had dealt with this property by re-leasing the same property to another, or changing the status of the same, with full knowledge of the material facts and circumstances connected with the contract and its execution, the same would constitute inconsistent acts with the right of rescission, and ratification would ordinarily follow; such acts are unequivocal acts. In this instance, according to her theory, she merely collected the rents from a tenant let in upon the property by her husband during his lifetime, she retaining the possession of the same until she could settle the matter, and, according to her testimony, willing to do equity. Under the circumstances, they are not such unequivocal acts as are inconsistent with the right of rescission and entirely consistent with the principle of ratification. It was held by the Supreme Court of Indiana, in the case of Tarkington v. Purvis, reported in 128 Ind. 182, 25 N. E. 879, 9 L. B. A. 610, that “equivocal acts, however, which do not clearly evince a purpose, with complete knowledge of the fraud, to retain the property as his own will not defeat the right of the person defrauded to rescind. The act must be unequivocal, and must show an election to retain the property, after discovering the deceit, before the right to rescind is gone” — and, continuing, that court further said, “In the present case the right to claim a rescission had been fully perfected by the appellee, by tendering back everything that had been received, and by offering to place the fraudulent vendor in statu quo.” The offer of Mrs. Guerre, the appellee, in her pleading to perform equity is inadequate to the exigencies of the case with reference to a difference in amount in her favor she should be charged with against the excess and the difference of the value of the other property received by appellant. We think the facts of her retention of the possession of the property and the collection of the revenues off the property, if done with a knowledge of previous conditions, is sufficient to raise the question of her ratification; if Mrs. Guerre really elected to retain the property with such knowledge, of course, rescission is gone, and ratification has taken its place, and while her acts are equivocal, it is sufficient to send them to the jury upon that question.

We think the special exception to plaintiff’s petition, on the ground that it is not alleged who plaintiff’s associates were, or what persons acted with him in the transaction, should have been sustained; also the objections by appellant of the testimony of the witnesses — the condition the testimony is in; as to Mr. Guerre’s poor ideas of values— as we think the mere general declaration of a witness as to the correctness or incorrectness of a man’s ideas of values, with reference to other transactions, without further testimony of conditions, is not a proper character of testimony to prove insanity. The bill of exceptions with reference to Dr. Tucker’s testimony, and also with reference to Frank Graupner’s testimony, is so inadequate in the statement of same in the brief, we are unable to discuss the same. We are not informed what the objections were or the conditions under which the testimony was offered. Some of the assignments of appellant in this record do not make a distinct specification of error required by the rule, and some of them merely refer to the bill of exception for that purpose, which is not proper briefing.

We have made rather an extended review of this cause on account of reversing and remanding it in view of another trial. We have concluded that the testimony in the record is sufficient to raise the question of insanity, and it is on account of the sharp conflict existent in this record as to the incapacity of E. R. Guerre to make the contracts in controversy that we considered the sixth assignment of error in the record. The propositions under the assignment are adequate to raise the question of the admissibility of the attorney’s testimony, although the sixth assignment of error is wholly inadequate for that purpose. We rather concluded, on the substantial merits of this case, to exercise our discretion, as this court has often done before, in regarding some of the assignments; otherwise this cause might have been affirmed.

It is ordered that the cause is reversed and remanded.