text:
    McANINCH v. STATE.
    (No. 3763.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law &wkey;j814 — Counts Charging Different Ownership — Instructions.
    Where, in a prosecution for cattle theft on two counts, the first alleging ownership of the stolen cow in the husband, and the second count in the wife, whom the evidence showed to claim ownership, both having testified to lack of their consent, it was not error to charge on the question of theft of a cow as the property of the husband.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <@ux>814.]
    2. Criminal Law <&wkey;775 — Alibi — Instruction.
    A charge on alibi which told the jury that, if they had a reasonable doubt as to the presence of defendant at the time and place where the offense was committed, they should find him not guilty, sufficiently submitted the defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dee. Dig. <&wkey;> 775.]
    3. Larceny <&wkey;70 — Cattle Theft — Instruction — Sufficiency.
    A charge in a prosecution for cattle theft, in which the defense was that the cow was received in a trade, that if the jury believed that defendant received the cow in trade or sale, or if they had a reasonable doubt thereof, they must acquit, was not objectionable, as failing to charge when a theft is completed, and that defendant must be acquitted unless he participated in the actual taking as a principal; since the charge, as given, directly applied the law to the facts.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. &wkey;70.]
    4. Criminal Law <&wkey;792 — Cattle Theft-Principal — Accomplice — Instruction-Sufficiency.
    An instruction in a prosecution for cattle theft that all persons guilty of acting together in the commission of an offense are principals, as are also others present knowing the unlawful intent who aid or encourage those actually engaged, that the offense of theft is complete when the alleged thief has taken actual possession and assumed ownership of the property, and that defendant should be acquitted unless he had some connection with the original unlawful taking of the cow, was sufficient, and not objectionable for a failure to define principals or to instruct that defendant must be acquitted if shown by the evidence to be an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. &wkey;> 792.]
    5. Larceny <&wkey;70 — Cattle Theft — Instruction — Sufficiency.
    In a prosecution for cattle theft, a charge that, if defendant bought or traded for the cow, or was not connected with the original taking, he should be acquitted, coupled with a further charge on circumstantial evidence, was not objectionable for failure to charge that defendant should not be convicted if he was a receiver, and not the thief, since, under the charge, the jury were bound to find defendant not guilty- if he was not connected with the original taking, even though he had received the animal with knowledge.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. i&wkey;> 70.]
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    George McAnineh was convicted of cattle theft, and he appeals.
    Affirmed.
    E. A. Camp, of Rockdale, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

Exception was reserved to the court’s charge on several grounds. The first wab that the court erred in charging on the question of theft of the cow as the property of P. B. Hickson; it being claimed the cow did not belong to P. B. Hickson, but was the property of Lula Hickson, the wife of P. B. Hickson. The indictment contains two counts, one charging the cow to be the property of Lula Hickson, and the other charging the cow to be the property of P. B. Hick-son. They both testified in the ease, and to the want of consent on their part. There is some evidence showing that Mrs. Lula Hickson claimed the cow, and we suppose it was community property, though there is nothing said about it. These people were husband and wife, and she speaks of" it in the nature of a milk cow — a noted cow in the neighborhood where it was stolen. But there is no merit in this contention. Both counts were submitted to the jury, and they found appellant guilty.

The second exception to the court’s charge is he did not submit the issue of alibi. The court’s charge contains a stereotyped charge on alibi, and, after defining “alibi,” instructed them, if they had a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, to find him not guilty.

The third exception is that it does not charge when a theft is completed, and does not charge that the defendant musf be acquitted unless he participated in the acts constituting the theft as a principal. We do not believe the exception is well taken. The theory of the state was that appellant and another party committed the theft and drove the cow from Davilla to Cameron, and there was some evidence showing they were seen driving this cow at night. Appellant sold the cow at Cameron, and had the check made for the payment of the cow in the name of one W. J. Melear. His claim was that he traded for the cow with Melear, giving him a little mule valued at $10 and some money for the cow, and sold her to the butcher. When the butcher went to make out the check, appellant had it made out in favor of W. J. Melear, and himself indorsed Melear’s name on the back of it when he cashed it. He says this was done at Melear’s request. Now, the court charged the jury, in this connection, that if they should believe from the evidence that the defendant received the cow described in the evidence in trade or sale from one W. J. Melear, or any other person, they will find the defendant not guilty, or if they had a reasonable doubt thereof, they will acquit the defendant. This directly applied the law to the facts.

Another ground is that the court did not define who are principals, and did not instruct the jury that, if defendant is shown by the evidence to be an accomplice, he must be acquitted. The court charged on circumstantial evidence in the main charge, and then gave this charge at the request of appellant :

“You are further instructed that all persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the cmnmission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may be prosecuted as such. And in this connection you are further charged that the offense of theft is complete when the alleged thief has actually taken possession of and assumed ownership and control of the stolen property, and unless you believe from the evidence, beyond a reasonable doubt, that the defendant, Geo. McAninch, had some connection with the original unlawful taking of the cow, if the cow was unlawfully taken, you will acquit the defendant.”

We think this sufficiently presented the failure of the court to so charge, if such error be found in the court’s charge for its omission.

Appellant also excepts to the court’s charge for failing to instruct the jury that defendant should not be convicted if he was receiver, and not the thief. We have quoted a sufficient number of the charges, which, we think, presented this matter fairly to the jury, so they could not have made any mistake in finding on this particular question. His contention was that he did not steal the cow, but that he received it from Me-lear. The court instructed the jury directly, if that was true, to acquit and gave a charge on circumstantial evidence, and also upon the law of principals, which instructed the jury that, if appellant was not connected with the original taking, he could not be guilty of theft. This omission, if it be so treated, was not calculated to injure the rights of the accused in the face of the charges given. It would make no difference whether appellant received it or not; if he was not connected with the original taking, he should be acquitted, and the jury were so instructed, and this whether he received it innocently or fraudulently. If the jury believed he received the animal from Melear, as he says he did, and as was his contention, they would not have convicted him. They could have taken this view of it, but they did not, and there is evidence to support the finding that he was the original taker. The issues were, we think, fairly submitted to the jury on the different questions. There is no bill of exceptions in the record, and these are the matters we have thought necessary to mention in deciding the case.

The judgment is affirmed.
      @=»For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    HOUSTON BELT & TERMINAL RY. CO. v. JOHANSEN.
    (No. 2414.)
    (Supreme Court of Texas.
    Nov. 3, 1915.)
    1. Damages <&wkey;208 —< Actions — Questions por Jury.
    In an action by a member of a eity fire department against a railway company for injuries due to an explosion of combustible, material in a box car, where the evidence was conflicting as to whether money paid by the eity to the fireman while disabled was paid as wages or as a gratuity, and where there was evidence that he actually suffered loss of time, the issue of damages for lost time was properly submitted to the jury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. &wkey;208.]
    2. Explosives <&wkey;8 — Injuries prom Explosion-Contributory Negligence.
    A railway company stored a car containing combustible material in its yard. Some of the material exploded, causing a fire, which was followed by other explosions. The fire department was called, and plaintiff, a member thereof, was injured by an explosion occurring after his arrival at the fire. Held that, inasmuch as the negligence of defendant was the proximate cause of the explosion setting the fire, as well as the subsequent one by which plaintiff was injured, the negligence of defendant was a continuing one, and plaintiff was not negligent in entering upon the premises.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig-. §§ 4, 5; Dec. Dig. <&wkey;>S.]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Frederick Johansen against the Houston Belt & Terminal Railway Company for personal injuries. Judgment for plaintiff, affirmed by the Court of Civil Appeals upon remittitur (143 S. W. 1186), and defendant brings error.
    Affirmed.
    Andrews, Ball & Streetman and A. L. Jackson, all of Houston, for plaintiff in error. John Lovejoy and Presley K. Ewing, both of Houston, for defendant in error.
   PHILLIPS, C. J.

The suit was by Jo-hansen, the defendant in error, on account of personal injuries suffered by him while in the discharge of his duty as a member of the fire department of the city of Houston by the explosion of combustible materials contained in a box car in the custody and charge of the plaintiff in error. The evidence warranted the conclusion that the explosion was caused by a sudden collision of the car with other cars, due to its being “kicked in” on the track where they were standing. The original explosion was followed by recurrent explosions of the contents, causing a fire in the ear, as the result of which the contents were consumed, and the ear wrecked! The burning car threatened adjacent property, and, in response to an alarm, Johansen, with other members of the fire department, went to the scene for the purpose of extinguishing the fire. While engaged in that duty, and in proximity to the car, a further explosion of its contents occurred, of a violent character, causing his injury. The jury resolved against the plaintiff in error the issue of whether the explosion was caused by its negligent handling of the car, returning a verdict in Jo-hansen’s favor in the sum' of $12,500; the verdict itemizing $2,500 of that amount as allowed for lost time, an issue of damages submitted in the charge. The honorable Court of Civil Appeals ordered a remittitur of $840 of the damages given for lost time, the judgment to be affirmed upon the remittitur being filed; and it was so filed. The writ of error was allowed on the petition of the railway company, on the ground there urged, that the undisputed evidence showed that during the whole of the time for which damages were allowed on account of lost time, that is, from the date of the injury down to the time of the trial, Johansen had received the same, and during a part of the time a greater, salary than he was receiving at the time of the injury. The charge of the court instructed the jury upon this feature of the damages that the plaintiff would only be allowed the reasonable value of time actually lost by him down to the time of the trial as the result of his injury, but that no deduction should be made of any amount paid him by the city as a mere matter of grace or gratuity.

If on account of his injury any time was actually lost by Johansen during this period, a finding favorable to him upon the other issues submitted in the charge would have entitled him to damages in the amount of its reasonable value; and if during such period he was paid by the city, as a gratuity or bounty, the same or a greater salary than he was receiving when injured, the railway company was not entitled to the benefit of such payment. Railway Company v. Jarrard, 65 Tex. 560. There was a conflict in the evidence as to whether the amount paid by the eity in that interval was a gratuity; and there was evidence that he actually suffered the loss of such time. This fully warranted the submission of the issue of lost time as a part of the recoverable damages.

The case is a companion one to that of Houston Belt & Terminal Railway Company v. O’Leary (Civ. App.) 136 S. W. 601, with substantially the same questions involved; O’Leary being the chief of the fire department, and having been injured by the same explosion, causing his death. A judgment in favor of the wife and minor child of O’Leary was affirmed by the Court of Civil Appeals, and the petition of the railway company for writ of error denied by this court. In the present case the writ of error was allowed only because of the charge on the measure of damages. We do not find it necessary to discuss the other questions presented in the petition for writ- of error. The case of Denison Light & Power Company v. Patton, 105 Tex. 621, 154 S. W. 540, 45 L. R. A. (N. S.) 303, urged by the learned counsel for the plaintiff in error 'as determining the question of its liability, has no controlling analogy. There Patton, without any right to do so, was making an unauthorized use of the light company’s property; and it was held that the latter was under no duty of anticipating its use by him, or, in particular, such as would create the situation which caused his injury. Johansen was at the scene of the fire in the performance of a duty. If it be admitted that he was a licensee, the railway company would be liable for any act of negligence on its part causing him injury, since it was under the duty of refraining from such an act. If, for illustration, before any explosion had occurred, he had been engaged in extinguishing the fire in this ear, and another ear had been negligently run into it by the company, causing the explosion, the issues of contributory negligence and assumed risk aside, there could be no question as to its liability. While the act which caused the original explosion was committed before Johansen reached the premises, in the nature of the case the successive explosions, set in motion by the original act, made it one of a continuing nature; and if it was a negligent act, as it was within the province of the jury to determine, the fact that Johansen went upon the premises after its commission would not affect the question. His situation, as well as the duty of the railway company, was the same as if he had reached the premises before the first explosion occurred and it had caused his injury. It therefore cannot be said that he went upon the premises dangerous at the time and took them as he found them.

The judgment of the Court of Civil Appeals is affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    INTERNATIONAL & G. N. R. CO. v. WALTERS.
    (No. 2782.)
    (Supreme Court of Texas.
    Nov. 10, 1915.)
    1. Master and Servant <&wkey;137 — Injuries to Servan'N-Negligence of Master’s Agents —Notice of Danger.
    Where a railroad car inspector was riding upon a car which had been “kicked” down toward others standing still, and the crew of the engine which had kicked it were not in possession of sufficient facts from which an ordinarily prudent person under the same circumstances would have anticipated that the car inspector might alight from the kicked car and enter upon the track on which the engine was moving, or near enough thereto to receive injury from such engine, the engine crew was under no duty to ring the bill or blow the whistle.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 2C9 , 270, 273, 274, 277, 278; Dec. Dig. <S==>137.]
    2. Master and Servant &wkey;>286 — Injuries to Servant — Negligence of Master’s Agents —Notice of Danger — Question for Jury.
    Where an engine crew has sufficient information to put them on notice that a ear inspector on a “kicked” car running parallel with the engine’s track might leave the car and place himself in a position of danger to be struck by the engine, it is a question of fact for the jury whether the engine crew should have foreseen that the car inspector would thus place himself in such position.
    [Ed. Note. — For other cases, see Master andi Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <&wkey;286.]
    3. Master and Servant <&wkey;286 — Injuries to-Servant — Negligence of Employer’s-Agents — Question for Jury.
    In-an action by a car inspector against his employing railroad for personal injuries received when he leaped from a “kicked ear” traveling toward stationary cars at an excessive speed and was injured by running onto a parallel track before the engine which had kicked his car and which was approaching without warning, whether the engine crew had notice that the inspector would alight and run across the-track held for the jury under the evidence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. &wkey;>286.]
    4. Trial <&wkey; 139 — Taking Case from Jury.
    Unless all reasonable minds would agree that the evidence is insufficient to establish the facts necessary to a cause of action, the court is not warranted in taking the case from the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.^ §§ 332, 333, 338-341, 365; Dec. Dig. &wkey;
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Frank S. Walters against the International & Great Northern Railroad Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (165 S. W. 525), and defendant brings error.
    Judgment affirmed.
    Wilson, Dabney & King, of Houston, for plaintiff in error. Llewellyn & Foster, of Conroe, and J. W. Parker, of Houston, for defendant in error.
   YANTIS, J.

Walters, the defendant in error, recovered a judgment against the plaintiff in error for personal injuries inflicted upon him while he was engaged in the service of said company as a car inspector and repairer at Sellars station, where there were switching yards containing nine side tracks. At the time of his injury he was riding on the side of a. box car that had been kicked, with eight others, at a rate of speed alleged to be excessive, for the purpose of coupling them with several stationary cars further down the switch track, with the purpose in view of completing the train in this way and then continuing the train and the engine’attached thereto to Houston. The engine that was pulling said train was used in making the kick referred to. After doing which, it then entered a side track which ran parallel to and in about ten feet of the track on which the defendant in error was riding the box car, with the purpose in view of going to the oil and water tanks to secure oil and water. It was Walters’ duty to inspect the stationary cars before permitting them to leave on their journey, and it was with this in view that he was riding one of the nine cars that had been kicked towards the stationary cars. Before the car upon which Walters was riding collided with the stationary cars, he became alarmed, as he testified, for his own safety, believing that the speed at which the cars were going would make a violent collision with the stationary cars and might injure him with falling doors and other • débris; that in this frame of mind he alighted from the car and ran across the track on which the engine was moving, without looking for an engine, and without knowing that one was approaching. The engine struck him and caused the injuries for which he sued.

A portion of the ground of negligence alleged was that the engine crew failed to ring a bell or blow the whistle to warn him of their approach. The writ of error was granted by this court because it then inclined to the view that the evidence was insufficient to charge the engineer and fireman with notice that Walters would alight from the car on which he was riding, and that he would run across the track on which the engine was moving. Upon a closer and a more mature consideration of the evidence bearing upon this question, we have .reached a different conclusion. It is quite true that if the engine crew were not in possession of sufficient facts from which an ordinarily prudent person, under the same circumstances which surrounded them, would have anticipated or foreseen that Walters might alight from the car, and might enter upon the track where the engine was moving, or near enough thereto to receive the injuries which he did receive, or some similar injuries, then the law would absolve them from the duty of ringing the bell or blowing the whistle, or, rather, no such duty would arise. But while this is true, it is also a settled rule that if there was information which the engine crew possessed sufficient to place them upon notice that Walters might leave the car on which he was riding, and might place himself in a position of danger of being struck by the engine, then it became a question of fact for the jury to settle whether or not they should have foreseen that Walters would thus place himself in a position where he might be injured'. It would then become a question of fact for the jury to determine whether, under such circumstances, the train crew was guilty of negligence in failing to ring the bell or blow the whistle, or otherwise warn Walters of their approach so that he might avoid coming in contact with the engine. Of course, it is true that, if there was no evidence which would charge the train crew with such notice, then the duty to warn Walters by ringing the bell or blowing the whistle, or otherwise, would not arise.

A careful investigation has convinced us that there was sufficient evidence to warrant the court in submitting the question of notice to the jury. The evidence was sufficient to support a finding by the jury that the engineer, notwithstanding his denial, did see Walters riding on the car. The evidence shows that Walters was riding on the side of the box car next to the tráck on which the engine was moving, and that the engineer and fireman were riding in their places in the engine which was backing, but that they were looking in the direction in which they were going, and that two men named Tucker were riding on the tender facing and looking the way they were going, or in the direction of Walters. The track on which the engine was moving was but ten feet from the track on which Walters was riding the ear. They all knew that Walters was a car inspector, and was riding down to inspect the cars that were to be attached to the train. They knew the cars that had been kicked were going at an excessive rate of speed, if we give full credit to the findings of the jury, for the jury had a right to reach this conclusion from the testimony of Walters that they were going about six miles an hour. It is reasonable that the engine crew should conclude that Walters would alight from the car, either when the kicked cars struck the stationary cars, or just before doing so, for the purpose of making inspection of the cars. It might be dedueible from the speed at which the cars were going that the engine crew had notice that the collision would be violent, and that Walters might become alarmed for his safety, and might alight from the car to escape injury. Before .“Walters alighted from the car, the yardmaster, Harlan, who was riding on the first of said cars next to the place of collision, alighted and ran across the track in front of the engine. From this it might be fair to conclude; and it was within the province of the jury to do so, that the engine crew had notice that Walters might attempt to do likewise, either from fright, or from some other reason. The jury had a right to conclude from the evidence that the engine crew would have notice that when Walters alighted from the car to inspect the stationary cars there would be considerable momentum on account of the excessive speed that the cars were going, which might cause his body to reach the track on which the engine was riding, or so near to it as to raise a probability of some serious injury to him. The tracks were only about ten feet apart, and of course the cars and engine would cover several feet of this distance, and Walters’ body would occupy a considerable portion of the distance, so that the space was so small where he could alight that it might be reasonable for the jury to conclude that in alighting from the ear, even without fear, at the speed it was going, he might come in contact with their engine. That the engine crew might have foreseen that Walters might enter upon their track is intensified-by -the fact that the evidence .is sufficient to support a finding by tbe jury that Walters was ignorant of tbe approach of tbe engine, and that tbe crew knew tbis, and not being advised thereof be might not be as careful about avoiding tbe track on which tbe engine was moving as be otherwise would be. Tbe plaintiff testified that he did not know tbe engine was on tbis track; that be supposed it was not on tbis track, but that it was still at its position for tbe purpose of connecting with tbe main train and continuing its journey to Houston; that it was customary for tbe engines, when coming into tbis town, to secure their oil and water before they entered it, and be supposed that they were already equipped with oil and water, and that they would not return to tbe oil and water tanks which they had passed in coming in. He testified that it was customary for an engine, when moving in switch yards, to keep its bell ringing. Tbe engine crew saw that Walters’ back was to them, and tbis was some evidence of notice that be did not know of their approach. If they did not ring tbe bell or blow tbe whistle, as there was evidence to prove, tbis fact was some evidence that be was ignorant of their approach.

From such facts as these tbe jury bad a right to conclude that tbe train crew should have foreseen that Walters was ignorant of their approach, and that in bis situation he might alight from tbe car on which he was riding and cross the track upon which the engine was moving, or place himself near enough thereto to receive the injuries; and if they had such notice, as the jury would be warranted in concluding, then it was a question of fact whether an ordinarily prudent person would have warned Walters by ringing the bell and blowing the whistle, or otherwise. The rule is well settled, from which this court has never wavered, that unless all reasonable minds would agree that the evidence was insufficient to prove that the train crew should have anticipated that Walters might leave the car on which he was riding, and place himself on the track, or near enough thereto as to be injured, then it became a question of fact for the jury, and the court would not be warranted in declaring as a matter of law that the engine crew could not anticipate such action on the part of Walters.

Measuring the point at issue by this rule, we have reached the conclusion that for us to hold as a matter of law that the engine crew had no evidence from which they could reasonably anticipate such action on the part of Walters would be to usurp the province of a jury in passing upon facts which it was their exclusive province to decide.

We have considered the other questions involved in this appeal, but have decided that they are without merit, and that the Court of Civil Appeals made the proper holding on each of them.

The judgment of the Court of Civil Appeals and of the district court should be affirmed, and it is, accordingly, so ordered.
      <§=>]?or other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    CAPLES et al. v. WARD et al.
    (No. 2778.)
    (Supreme Court of Texas.
    Nov. 3, 1915.)
    1. Execution @=>33 — Property Subject — Vested Remainder.
    A vested remainder is subject to execution against the remaindermen.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 76-82, 86, 87; Dec. Dig. @¿>33.]
    2. Wills @=>634^“Vested Remainder.”
    A remainder is vested, where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate; it being an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. @=>634.
    For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.]
    3. Wills @=>634^-Vested Remainder — Creation.
    Where a will provided that the testator gave his residuary estate to his wife., M. A. C., “for the term of her natural life, with remainder over upon her death to our five children, E. T. C., J. C., W. C., R. C., Jr., and M. C., share and share alike,” such will gave J. C. a vested remainder, as investing him with a present interest in the estate and a right to its future enjoyment.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. @=>634.]
    4. Wills @=>634 — Remainders — Construction-Favor of Law.
    The law will not construe a remainder as contingent where the estate can reasonably be taken as vested, since it favors the vesting of estates at the earliest possible moment.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dee. Dig. @=>634.]
    5. Wills @=>634 — Vested Remainder — Power of Disposition in Life Tenant.
    Where testator bequeathed his residuary estate to his wife for life, with remainder over to his five children, the wife being granted power of disposition to sell, mortgage, etc., with the consent of the majority of the children, the remainder of a child was yet vested, since a remainder is not made contingent by uncertainty as to the amount of the estate remaining undis-posed of at the expiration of the life estate, but by uncertainty as to the persons who are to take, the contingency that the estate may be exhausted by the life tenant’s disposition being merely a condition subsequent, possibly affecting the amount of the remainderman’s interest or defeating its enjoyment, while an estate limited upon a condition subsequent vests at once, subject to divestment.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. @=>634.]
    6. Wills @^634 — Vested Remainder.
    Where a testator bequeathed his residuary estate to his wife, with remainder over to his five children by name, share and share alike, directing in another clause of the will that the descendants of any remainderman dying before the life tenant should succeed to the remainder-man’s share of the residuary estate, such direction will be construed as intended to prevent the lapsing of the legacies in favor of the remain-dermen, and so as not affecting the vested character of the remainders.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510'; Dec..Dig. <§=>634.]
    7. Wills <§=>63íL-Vested Remainder.
    The contingency that the death of a remain-derman before the expiration of the life estate may prevent such remainderman from coming into possession of his interest does not render the remainder contingent, if otherwise vested.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. <§=>634.]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Margaret A. Capíes and others against T. W. Ward and others. Judgment for plaintiffs, and defendants appealed to the Court of Civil Appeals, which reversed the order of the district judge and remanded the cause (170 S. W. 816), and plaintiffs bring error.
    Affirmed.
    Stanton & Weeks and W. D. Howe, all of El Paso, for plaintiffs in error. J. G. Mc-Grady, of El Paso, for defendants in error.
   PHILLIPS, C. J.

The appeal prosecuted in the ease to the honorable Court of Civil Appeals was from an order of the district judge granting a temporary injunction, restraining the sale, under execution, of the interest of Joseph A. Capíes in certain real property, a part of the estate of his deceased father, Richard Capíes, theretofore levied upon to satisfy a judgment obtained against him by Ward, one of the defendants in error. It is only necessary to determine the question of whether Joseph A. Capíes had such an interest in the real property levied upon as was subject to execution. The honorable Court of Civil Appeals reversed the order of the district judge and remanded the cause, holding, that he had such an interest; and the writ of error was granted on account of probable error in that decision.

The estate of Richard Capíes was devised by will, the provisions of the will pertinent to the issue here, being as follows:

“Fourth. I give and bequeath to my said wife, Margaret Ann Capíes, the sum of one thousand ($1,000.00) dollars out of my half interest in the community estate of myself and my said wife Margaret Ann Capíes, in trust, however, for the purpose of caring for and keeping in decent order the graves of my father and mother, Thomas and Briget Capíes, in Con-cordia Cemetery near the city of El Paso in this county, and I direct that the said one thousand ($1,000.00) dollars be invested or located as in the discretion of the trustee may seem best, and the income therefrom, or so much thereof as may be necessary, devoted to the care of said graves, and should the income therefrom be more than sufficient to properly care for said graves, then such surplus shall be devoted by my trustee to the care of the graves of any other members of my immediate family who may be buried at El Paso or in the vicinity, but should said income be more than sufficient for the purposes aforesaid, then such surplus shall be added to the said one thousand ($1,000.00) dollars and invested therewith for the purposes aforesaid. I direct that my wife shall designate by will or otherwise one or - of our children to execute this trust after her death and such child or children in turn so designated shall designate some one to carry out said trust after their decease, but should my said wife or children fail to make such designation or at any time the trusteeship provided for fail, then it is my will that the mayor, of the city of El Paso become the trustee for said fund and discharge said trust.
“Fifth. All the rest and residue of my estate, real, personal and mixed, consisting of my half of the community property of myself and my said wife, Margaret Ann Capíes, and such separate property, if any, of which I may die seised or possessed, or to which I may be entitled, wheresoever the same may be situated, I give and bequeath to my beloved wife, Margaret Ann Capíes, for the term of her natural life, with remainder over upon her death to our five children, Edward Thomas Capíes, Joseph Capíes, William Capíes, Richard Capíes, Jr., and Margaret Capíes, share and share alike.
“Sixth. It is my will and desire that my said property shall be managed by my wife during her life as it has been hitherto controlled by me as nearly as may be. Should my said wife deem it to the best interest of my said estate that any portion of same should be sold, alienated, conveyed, mortgaged or incumbered, it is my will and desire that she with the written consent of the majority of our said children, then living, who are of age or married, shall have full power to sell, alienate, convey, mortgage or incumber such part of same as in her judgment and that of the said majority of said children may seem proper and to the best interest of said estate.
“Seventh. It is my desire that upon the death of my said wife and the termination of the life estate in her hereby created, that all of my estate consisting of my half of the community property of myself and my said wife, real and personal of whatsoever character, as well as all separate property of whatsoever character, if any, and wheresoever situated, of which I may die possessed or be entitled to, or which may have accrued to my estate, shall be divided equally between all of my above-named five children then living, or their descendants, share and share alike; that is to say such descendants of any deceased child shall have that portion to which their ancestor, if living, would have been entitled to.”

Under the terms of the will the residuary estate of Richard Oaples, of which the real estate levied, upon to the extent of the interest of Joseph Capíes (called in the pleading Joseph A. Capíes) is a part, is clearly bequeathed to Margaret A. Oaples, the wife of Richard and the mother of Joseph, for life, with remainder over to the five children, by name, including Joseph, share and share alike. Each of the five children was living at the time of the testator’s death. Margaret A. Capíes is still living, and the life estate in her, therefore, not determined. The real estate levied upon is alleged to be of the market value of $598,500, and the value of Joseph Capíes’ interest, an undivided one-tenth, $59,850, Ward’s judgment against him, with costs, amounting to $3,412.30. The question is whether the remainder created by the will in favor of Joseph Oaples is a vested or contingent estate. If a vested remainder, it is subject to execution against Joseph Capíes. Freeman on Executions, § 178.

A remainder is vested where there is a person in being wbo would have an immediate right to the possession upon the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession postponed until the ending of a particular estate. 4 Kent, 202; Bufford v. Holliman, 10 Tex. 560, 60 Am. Dec. 223. To use a common illustration of the books, where there is a grant of an estate to- A. for life, and, after his death, to B. in fee, the remainder is a vested one, since the grant creates a present fixed interest, with the right of future enjoyment in B.

According to these established rules, the fifth clause of the will plainly gives Joseph Capíes a vested remainder in the residuary part of the estate, for, in terms as positive as those applied to the creation of the life estate, it invests him with a present interest and right to its future enjoyment.

We have, then, only to consider whether the remainder is rendered contingent by the subsequent provisions of the will. The only provisions which may be regarded as having that force are those embodied in the sixth clause, whereby the life tenant is clothed with the power of sale if exercised with the consent of a majority of the remainder-men; and in the seventh, directing that the descendants of a remainderman shall succeed to his portion of the estate in the event of his death before the termination of the life estate.

The law favors the vesting of estates at the earliest possible period, and will not construe a remainder as contingent where it can reasonably be taken as vested. Bufford v. Holliman; Doe v. Considine, 6 Wall. 458, 18 L. Ed. 869.

Whatever the consequence of the grant of property to another generally or indefinitely with the power of disposition, an express limitation of the grant to that of a life estate, with such power added, does not raise the estate to a fee. There is merely constituted an estate for life, with the power of disposition annexed. Though the test of a vested remainder is the existence of an ascertained person having an immediate right to the possession on its becoming vacant by the termination of the intervening estate, this does not imply any certainty as to the quantity and value of the remainderman’s interest. The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take. Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310. With certainty existing as to the person who is to take, with that person named in the will and in being at the time of the testator’s death, and with no condition imposed upon his right to the possession except the expiration of the life estate through the death of the life tenant, as is the case here, the sale of the property by the life tenant could not be said to prevent the vesting of the estate of the remainderman at the death of the testator. The remainder vests, subject to the power of sale in the life tenant.

Whether there will be any of the estate remaining under the exercise of the power presents a contingency, it is true. But under the will the vesting of the interest of Joseph Capíes, and the other remaindermen, is not made dependent upon that contingency. It is not a condition precedent to the vesting of his interest, but only a condition subsequent, which may affect the amount of his interest, qy defeat its enjoyment. An estate limited upon a contingency, to which the effect of a condition subsequent only is given, vests at once, subject to be divested upon the happening of the contingency. Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; A. & E. Enc. of Law (2d Ed.) vol. 24, 393. In 4 Kent. 204, it is said:

“A limitation, after a power of appointment, as to the use of A. for life, remainder to such use as A. shall appoint, and in default of appointment, remainder to B., is a vested remainder, though liable to be divested by the execution of the power."

It is held, generally, that a power of sale in the life tenant does not prevent the vesting of the estate of a remainderman. A. & E. Enc. of Law (2d Ed.) vol. 24, 389; Roberts v. Roberts, 102 Md. 131, 62 Atl. 161, 1 L. R. A. (N. S.) 782, 111 Am. St. Rep. 344, 5 Ann. Cas. S05, and notes; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; Pedigo v. Botts (Ky.) 89 S. W. 164.

The direction in the seventh clause of the will that the descendants of any remainderman dying before the expiration of the life estate should succeed to his share of the residuary estate should be construed, we think, as intended to prevent the lapsing of the legacies in favor of the remaindermen. It is to be noted that the devise to Joseph Capíes, and the other remaindermen, is not made contingent upon his or their surviving the mother. In the fifth clause his and their interests are devised directly. The only contingency which, under the will, will prevent Joseph Capíes from coming into the possession of his interest is his own death before the expiration of the life estate; and this, it is settled, does not render the remainder contingent. The remainder is vested, defeasible on a condition subsequent, his death before the expiration of the life estate, his share, in such event, passing to his descendants. In 2 Redfield on Wills, § 17 (12), it is said:

“It is also settled that where a devise is made to one for life, and afterwards to certain other persons by name, and in the event of 'any such persons entitled in remainder dying during the continuance of the life estate, leaving issue, to go to such issue, it creates a vested interest in all thus entitled in remainder.’’

The eases of Blanchard v. Blanchard, 1 Allen. (83 Mass.) 223, Gibbens v. Gibbens, 140 Mass. 102, 3 N. E. 1, 54 Am. Rep. 453, Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135, and Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310, are to like effect.

The authorities relied upon by the plaintiffs in error have been considered; but none of the decisions of the courts of this state are opposed to the holding that, under this will, Joseph Capíes took a vested interest in the residuary estate of his father. In Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798, for instance, which is cited as holding to the contrary, the residue of the estate of James T. Thornton was by his will given in trust to five of his children, named, to be held by them for the benefit of their children. The trial court held that upon the death of the testator the residue of the estate vested immediately in his grandchildren, the children of the trustees. But three of the testator’s children had no children at the time of his .death, making it uncertain therefore as to the persons who were to take as remain-dermen; and, because of this condition, and the further provision of the will that should any of the testator’s children die without issue living, the share held in trust for his or her children should be divided among the children of the survivors in the same proportion as if it had descended by law to the testator’s children named, the Court of Civil Appeals held that the trial court was in error in its conclusion.

Lee v. McFarland, 19 Tex. Civ. App. 292, 46 S. W. 281, involved the will of Jasper McFarland, whereby he gave a tract of land of 75 acres to his granddaughter, Gertrude Murphy, providing that, in the event of her death without heirs of her body, the tract should be equally divided between Jasper T. and Newton McFarland, his sons. The residue of his estate was devised to his wife for life, or until she should marry; and, upon the happening of either of such events, it was to be divided equally between the two sons, Jasper T. and Newton, or their descendants. The granddaughter, Gertrude Murphy, died before the testator. The son Jasper T. McFarland survived the testator a few months, leaving a surviving wife, but no descendants; no children having ever been born to him. He died, however, before the termination of the life estate in his mother. The suit was by the surviving wife of the son Jasper T., to recover an undivided one-half of the 75-acre tract and of the other lands comprising the residue of the estate. It was held by the Court of Civil Appeals, as to the 75-acre tract, that inasmuch as the devisee of that tract, Gertrude Murphy, had died before the testator, the title thereto, under the wili, became vested in the two sons, then living, and the interest of Jasper T. therein having been devised by his will to his wife, the plaintiff, she was entitled to an undivided half interest in that tract. As to the balance of the property in issue, it was held that the plaintiff’s claim of title rested entirely upon the will of Jasper McFarland, under which it was provided, as to such balance, that the interest of Jasper T., in the event of his death, should go to his descendants, and not to others; that, as he left no descendants, the only class capable under the will of taking his interest upon the death of the life tenant, if he were then dead, the devise to him lapsed, and the plaintiff was accordingly not entitled to recover. This conclusion was obviously correct, since the will was properly construed as laving made distinct provision for the disposal of the interest of jasper T. in the event of his death before the expiration of the life estate; that is, that it should, in such event, go to his descendants, which, at all events, excluded his wife. The remainder, in other words, was defeated by the happening of a subsequent condition.

In Chace v. Gregg, 88 Tex. 552, 32 S. W. 520, the testator’s devise of the residue of his estate was to his son and his wife, equally, with the express condition annexed that if the wife should die without issue from her body, the property then held by her in virtue of the will should go to the son, if living, and, if. dead, to his nearest heirs. The remainder thus created in the son was held to be contingent, and properly so, because it was provided in the will, as a condition precedent to his having any interest in such estate of the wife, that she should die without issue of her body, and otherwise he was to acquire no such interest.

It is apparent, from the allegations of the petition respecting the value of the estate, that the execution of the trust created by he fourth clause of the will for the expenditure of $1,000 and the income from such amount, for the care of the graves of the testator’s parents, will not be affected by the levy upon the interest of Joseph Capíes and its sale under execution. We accordingly hold that Joseph Capíes took under the will a vested remainder in the residuary estate. It is capable of sale under execution, subject to the life estate in Margaret A. Capíes, and the exercise by her of all the powers conferred upon her under the sixth clause of the will, and to defeasance by his death before the termination of the life estate.

The honorable Court of Civil Appeals has, in our opinion, correctly determined the case, and its judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. AREY.
    (No. 2781.)
    (Supreme Court of Texas.
    Nov. 10, 1915.)
    1. Negligence <@=>68 — Anticipation—Maxim.
    It is a maxim that no one is boun'd to anticipate another’s negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 92, 94, 95; Dec. Dig. <@¿>68.]
    2. Railroads <@=3460 — Operation — Fires — Contributory Negligence of Owner.
    Where the owner of a barn adjacent to a railroad right of way left a window therein which faced toward the railroad open, and the interior of the structure littered with loose oat straw, his contributory negligence in so doing debarred any recovery by him against the road for destruction of the barn by fire caused by the ignition of the straw by a spark from defendant’s locomotive carried through the open window.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1681; Dee. Dig.. <@=>460.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by G. E. Arey against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (170 S. W. 802), and defendant brings error.
    Affirmed, with instructions.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Robt. F. Spearman, N. E. Peak, and Evans & Carpenter, all of Greenville, for appellee.
   PHILLIPS, C. J.

The suit of the plaintiff in the trial court, G. E. Arey, the present defendant in error, was for the recovery of damages on account of the destruction of certain property, a barn and its contents, charged to have been due to escaping sparks from a passing engine of the railway company. The barn was upon premises near the railroad track, leased by the plaintiff, the barn itself being 108 feet south of the track. The track extended in a northeast and southwest direction. This situation placed the west side of the barn toward the track. In that side or end of the bam were two windows opening into a crib in the lower story, and one window, about three feet square opening into the loft. These windows were left open-, having no shutters or covering of any kind. The plaintiff had placed a ton of baled oat straw in the loft near the window, and had used about half of it at the time of the fire. In feeding the oat straw loose straw "had become scattered and banked up in the crib and stalls, and probably in the loft. The wind at the time was blowing from the railroad toward these windows; and, if the fire was caused by sparks from a passing engine, they must have been blown through the windows.

Contributory negligence on the part of the plaintiff was pleaded by the defendant, and in the court’s charge the issue was submitted to the jury in the following form.

“You are further charged that plaintiff, in the use of the barn and lot and his property therein, and in regard to openings and the accumulation of combustible materials, is required to use ordinary care to prevent its destruction or injury, such care as a person of ordinary prudence would commonly exercise under like circumstances ; and if plaintiff failed to use such care) and if such failure, if any, caused or contributed to the injury or destruction of plaintiff’s property, then plaintiff cannot recover.”

A verdict in favor of the railway company was rendered.

The honorable Court of Civil Appeals for the Fifth District, in an opinion rendered by its learned Chief Justice, reversed the judgment; one of the grounds of its action being the submission of the issue of contributory negligence. In so doing it expressly overruled its previous decision in Railway Co. v. Crabb, 80 S. W. 408, a case of practical identity in its facts with the present one. Its holding, as we gain it from the opinion, is that in cases of this character — the destruction of property on premises in lawful use, adjoining or near a railroad track, by fire caused by sparks from a railroad engine —the doctrine of contributory negligence is out of place, and that question cannot arise; a principal authority relied upon being Le Roy Fiber Co. v. Railway Co., 232 U. S. 340, 34 Sup. Ct. 415, 58 L. Ed. 631, in which a proposition to that effect is announced. We do not subscribe to this broad holding, either upon- principle or authority. It subverts, in our opinion, the fundamental doctrine of the law that no man should benefit from his own wrong. It affirms, in substance, that while other men are held to the duty of exercising ordinary care to prevent injury either to their persons or property, and will be denied the right of recovery for such injury if it was proximately contributed to by their want of such care, the owner or lessee of premises adjacent to a railroad track, because alone of their use being lawful, is wholly exempted from that duty. It furthermore declares that a right denied, generally, to others will be allowed him, however careless or reckless, or even deliberate and intentional, was his exposure of his property to the danger. The proposition does not commend itself to sound reason, and cannot, in our judgment, be sustained.

It is unnecessary to here restate that the owner of premises has the full beneficial right to their free enjoyment for all lawful purposes; for it has often been unmistakably so declared by this court. It is a right which is not limited by another’s use of his property; nor is it subject to the servitude of another’s wrongful use of the premises. That the owner is not bound to anticipate another’s negligence is also true; as it is likewise true of men, generally, in the use of their property and the conduct of themselves. But the doctrine of contributory negligence is not related to these considerations, and is not defeated by them. It is founded, as has been said, on the mutuality of the wrong, the impolicy of allowing a party to recover for his own wrong, and the policy of making personal interests of men dependent upon their own prudence and care. It recognizes that one’s use of his premises or his property, as well as his conduct, may be perfectly lawful,' and also that in either using his property or in his conduct he is not bound to anticipate the negligence of another. But it declares that, notwithstanding this, a man may not court or invite injury to his person or property. And, furthermore, it affirms that, when faced with danger to either his person or his property, he is under the duty of using the care that a man of ordinary prudence would use under the same circumstances to avoid an injurious consequence to himself. It proceeds from the rule of conduct which actuates men in general, from the natural law- which prompts them to self-preservation, that no man of common prudence, no matter how wrongful the act of another, or lawful his own conduct and the particular use of his property, will stand by and suffer injury from such act, either in his person or property, without an effort to prevent it; and therefore all men, as a rule of action, to avoid such injury, ought to use the care that such a man would exert under like circumstances.

While, in general, negligence cannot be predicated upon an owner’s lawful use of his premises, that is, the mere fact that he makes use of them for his home, his business, or pursuit, though in proximity to other premises whose equally lawful use creates a danger to neighboring property, as in a case like the present one, a man may have under lease premises near a railroad track over which pass engines, from which live sparks customarily escape, even in the exercise of ordinary care by their owners, causing constant apprehension of fire, and, because his use of the premises is rightful, be exempt, as a rule, from any charge of negligence for merely maintaining thereon his residence, his barn, and other structures, and devoting them to their usual and proper purposes, will it do to say that under no circumstances will his use of the premises, or the location of his property upon them, be negligent? Will his right to damages be countenanced in a court, though, in truth, he may aid in the destruction of his own property by rashly or purposely exposing it to the hazard? That is the question here. An affirmative answer to these questions must be given in the future administration of the law by the courts, if it is to be held, as is stated in Le Boy Fiber Company v. Railway Company, that in cases of this nature the doctrine of contributory negligence is entirely out of place; and in such holding it will further have to be said, as to such cases at least, that the law is no longer an influence for prudence and care in the conduct of men.

It is not a question of the lawful use by an owner of his premises. It is a question of his negligent use of them, and the legal consequence of such use when it is directly responsible, in whole or in part, for injury to the owner’s property. If others, in the lawful use of their property, are required to exercise ordinary care to prevent its negligent injury or destruction, what is there in the situation of an owner or lessee of premises like these that creates for him a different rule? It clearly does not lie in the fact that his use of the premises is lawful. Nor does it rest in the maxim that no one is bound to anticipate another’s negligence; for that is a principle of general application. No other ground for the distinction is advanced in the authorities which affirm the proposition. It is not believed that any other can be urged; and neither ground, in our opinion, is sound.

Of more importance than this conviction is the fact that the question has been definitely settled in this court in two comprehensive opinions, distinguished for their reason and clearness, rendered by Chief Justice Stayton, one of the ablest judges in its history, Railway Co. v. Levi, 59 Tex. 674, and Martin, Wise & Fitzhugh v. Railway Co., 87 Tex. 117, 26 S. W. 1052. We have no inclination to overrule them, as reluctant as we are to differ from the honorable Court of Civil Appeals or any of the authorities to which it refers. Both were eases where cotton had been placed upon premises contiguous to a railroad track. In the first the baling of the cotton had been cut, or it was badly baled, rendering it more exposed to fire than if well baled; and the other the cotton was placed near the track without covering over it. In the Martin, Wise & Fitzhugh Case a question certified for the court’ answer was as follows:

_ “If the railway company knew of the situation of the cotton, and by the exercise of ordinary care could have avoided setting fire to it and destroying it, would the fact that it was negligence on the part of the compress company to place the cotton in that position, uncovered, permit a recovery against the railway company?”

In response to the question the court said:

“To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners.”

In the Levi Case the trial court had given the following charge:

“You are instructed that plaintiffs had a right to place their cotton upon their cotton yard, and in so doing they would not on this account alone be guilty of negligence, although said cotton yard was in close proximity to defendant’s roadbed.”

In the course of the opinion, after speaking of the impracticability of preventing entirely the escape of sparks from locomotives, it is said:

“It is true that a person owning or renting property near a railway is entitled to use such property; but the greater the degree of exposure to injury from such proximity the greater degree of care should be exercised by such person to prevent injury from causes for which a railway company will not be responsible, because impracticable to prevent them. What constitutes negligence sometimes may be a matter of law; but whether it exists in a given case is a question of fact for the determination of the jury, in all cases where there is a conflict of evidence, or the facts are disputed; and in no case submitted to a jury, where the facts are contested, or even where the evidence admitted to be true is of such character that different, well-organized minds might honestly arrive at different conclusions as to whether a person had or had not used due care, should a jury be instructed that an act does or does not constitute negligence. But there are cases in which, as matter of law, there being no controversy about the facts, in which a court would be authorized to instruct a jury that a given use of property was not negligence, when considered with reference to a specific use to which contiguous property is lawfully appropriated; as, for instance, if the appellees had .been using the open yard in which the cotton was stored for the purpose of storing iron, stone, brick, or other noninflammable material, which, however, may be injured by fire, the court, with reference to an injury caused by sparks from a passing locomotive, might instruct a jury that such use was not negligence. If the same lot was used as a lumber yard, in which to store plank and other inflammable material, it would be a question of doubt as to whether such use, reference being had to the use to which contiguous property was lawfully appropriated, was negligence or not.
“So, in the use of a yard contiguous to a railway track, for the purpose of storing baled cot-1 ton, which, as matter of common knowledge, is inflammable, and easily ignited, when it is shown that contiguous property is lawfully used for a purpose from which it * * * results that the cotton will be subjected to some danger from fire, it might be doubtful if the storing of baled cotton in such a place was a prudent act, and the question should be submitted to the jury.
“If cotton badly baled, or of which the baling had been cut, which seems to have been the case with the cotton injured, for the purpose of sampling it, and thus more exposed to fire than if the cotton was well baled, it would become more doubtful still if such use would be a prudent use, and hence the greater necessity for leaving the entire question of negligence to the jury, under all the evidence. * * *
“If we take an extreme case, and suppose that, instead of using the yard in which the cotton was stored for that purpose, the appellees had used it for a powder, magazine, in which, without any covering, they left open kegs of gunpowder, then, if it be admitted that such was the case, and that locomotives were passing within a few yards of that place frequently, and that therefrom sparks would escape which might reach such explosive, even with the exercise of that care required by law of a railway company to prevent injury to contiguous property by fire from its locomotives, the court might instruct the jury that such use was not a prudent use; but if there was a controversy as to the facts, even in such a case the whole matter should be left to. the jury. Wharton on Negligence, 420, and citations.”

There can be no doubt, under these authorities, that in the present case the question of whether the plaintiff was guilty of contributory negligence under the circumstances shown was one for the jury’s determination; and the submission of the issue by the trial court was therefore proper.

The judgment was reversed by the Court of Civil Appeals upon other grounds, as well, presenting questions over which its jurisdiction is final. Its judgment reversing the trial court - judgment and remanding the cause will therefore stand, and is affirmed, with instructions that upon the further trial of the ease this opinion be followed in respect to the issue of contributory negligence.

Affirmed, with instructions.
      <@csoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRAVER et al. v. GREER et al.
    (No. 2752.)
    (Supreme Court of Texas.
    Nov. 10, 1915.)
    1. Appeal and Error <§=>282 — Preservation of Grounds — Trial Without Jury —Motion for New Trial.
    Under Rev. St. 1911, art. 1991, providing that, in trials by the court, “it shall be sufficient for the party excepting to the conclusions of law or judgment of the court to cause it to be noted on the record in the judgment entry that he excepts thereto, and such party may thereupon take his appeal or writ of error,” it is not a prerequisite to perfecting an appeal that the party shall move for new trial, where the trial below is to the judge and not to a jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <@=> 282.]
    2. Appeal and Error <§=3282 — Preservation of Grounds — Trial Without Jury — Motion for New Trial.
    In spite of rule 24 of the Supreme Cburt (142 S. W. xii) providing that “a ground of error not distinctly set forth in a motion for a new trial in the cause shall be considered as waived,” it is not a prerequisite to the perfection of an appeal that a motion for new trial be made by the appealing party.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <§=> 282.]
    3. Appeal and Error <§=>282^-Peeservation of Grounds — Trial without Jury — Motion for New Trial.
    Rule 24 of Supreme Court, providing that a ground of error not distinctly set forth in the motion for new trial shall be considered as waived, must be construed with other court rules, including 71a (145 S. W. vii), requiring motion for new trial to be filed before appeal, except in such cases as the statute does not require a motion for a new trial, and, when so construed, does not require a motion for a new trial in cases tried to the court.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <§=> 282.]
    4. Appeal and Error <§=3282 — Record—Contents — Conclusions of Daw and Fact.
    The right to have an appeal considered, in cases tried to the court, without a motion for new trial does not depend upon filing by the trial judge of his conclusions of fact or law, since the filing of his conclusions is required by Rev. St. 1911, art. 1991, only upon the request of the parties.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dee. Dig. <@= 282.]
    5. Receivers <@=*155 — Powers op Court — Quasi Public Corporations — Priority of Claims — Operation by Receiver — Expenses.
    Where the court takes charge of quasi public corporations, such as railways, operating them through a receiver, it may make the necessary debts of such operation a prior lien upon the income or the property itself, but this is an extraordinary power, depending upon the public interest, and does not extend to receiver-ships for private corporations, since a court of equity cannot impair the force of contracts, in spite of its broad powers to give relief.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. <@=*155.]
    6. Receivers <@=*155 — Private Corporations — Operation by Receiver — Expenses — Priority.
    In the case of private corporations or individuals, the only ground for displacement of vested liens in favor of the receiver’s operating expenses must be based on an estoppel of the lienholder, as where he procures authority to the receiver to continue the business, or is privy to such action, but the more fact that he is a party to the suit in which such action is taken will not produce that result.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. <@=*155.]
    7. Receivers <@=*155 — Private Corporations — Operation by Receiver — Expenses — Priority.
    Where other creditors intervened in plaintiff’s action to foreclose his mortgage against a lumber concern, and procured the appointment of a receiver to operate the business, and plaintiff during the receivership insisted on the priority of his lien 'and moved the court for its protection, his mortgage cannot . be subordinated to the receiver’s operating expenses in the distribution of assets.
    • [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. <@=*155.]
    8. Receivers <@=*155 — Private Corporations — Operation by Receiver — Expenses — Priority.
    Where mortgage creditors of a lumber concern were present at a meeting of creditors, at which it was decided to intervene for the appointment of a receiver, with power to continue the business, in a suit to foreclose a mortgage, but took no part in the meeting, and gave no consent to the proposal, and where, in their intervention in the suit to prove their claims as ordered by the court, they insisted on the priority of their claims, they were not estopped to claim priority for their liens over the receiver’s operating expenses.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. <@=*155.]
    9. Receivers <@=*155 — Private Corporations —Operation by Receiver — Expenses—Priority.
    Where a bank, holding a mortgage against a lumber concern, was active in procuring a receivership by intervention in a pending foreclosure suit, and its cashier served as one of a committee chosen at a creditors’ meeting to recommend a receiver to be appointed to continue the business, it could not object to the subordination of its lien to the receiver’s operating expenses.
    [Ed. Note — For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. <@=*155.]
    Certified Question, from Court of Civil Appeals of Sixth. Supreme Judicial District.
    Action by D. C. Craver against T. A. Greer and others, in which the National Bank of Daingerfield, Galt & Galt, and Castleberry, Lawrence & Rodden, and others intervened, and in which receivers were appointed. An order, postponing the liens of plaintiff and the interveners named to the receivers’ operating expenses, was affirmed by the Court of Civil Appeals (178 S. W. 699), and that court certified questions to the Supreme Court.
    Questions answered, adversely to the decision of the Court of Civil Appeals, and also as to the trial court, except as to the National Bank of Daingerfield.
    Beard & Davidson, of Marshall, for plaintiff D. C. Craver. F. H. Prendergast and A. G. Carter, both of Marshall, for defendants T. A. Greer and C. A. Wheeler. Henderson & Bólin, of Daingerfield, for intervener National Bank of Daingerfield. Carter & Strength, of Marshall, for interveners Castle-berry, Lawrence & Rodden. Lacy & Bram-lette, of Longview, for interveners Galt & Galt.
   PHILLIPS, C. J.

The appellants, D. C. Craver, National Bank of Daingerfield, Galt & Galt, and Castleberry, Lawrence & Rod-den, were contract lien creditors of T. A. Greer, a lumber manufacturer, operating sawmills in Harrison and Marion counties, and a lumber yard- in the city of Marshall. The property of Greer upon which their mortgage liens existed had been subjected to a receivership on the order of the district court of Harrison county, the operation of Greer’s sawmill and manufacturing business being continued by the receivers at the direction of the court, resulting in a considerable indebtedness being incurred by the receivers in the course of its operation. The appeal was from the final decree rendered in the receivership proceeding, subordinating the claims of the appellants to the proceeds of the property, at the same time directed to be sold, to the costs and expenses of the receivership.

Summarizing the statement made in its certificate by the honorable Court of Civil Appeals, it appears that Graver’s claim consisted of purchase-money notes, aggregating $6,000 in amount, given by Greer in payment for the sawmill in Harrison county, certain adjacent tracts of growing trees, and certain standing timber in Marion county, and a number of mules, wagons, etc., secured by a duly registered mortgage lien. Greer’s indebtedness to the other appellants, respectively, was likewise secured by chattel mortgage liens on personal property taken charge of by the receiver, each duly registered. Being insolvent, Greer, in October, 1913, made a general assignment of all his property for the benefit of creditors, a large number of whom were unsecured, and the assignee took possession of the property. On the following day Craver filed a suit in the district court of Harrison county against Greer and the assignee, setting up the indebtedness due him, and praying for foreclosure of his lien and order of sale. In this suit, on November 8, 1913, three certain creditors of Greer intervened, for themselves and such other creditors as might enter the proceeding and be responsible for costs, alleging Greer’s property to be insufficient to pay his debts unless properly managed; that a creditors’ meeting had been held at which a recommendation had been adopted for the making of an application for the appointment of a receiver to operate Greer’s sawmills and manufacturing business, which it was believed would prove profitable, and whereby all creditors might be paid; and that if the property was subjected to forced sale to satisfy only the claims of the secured creditors, the result would be its waste and loss to the unsecured creditors. Upon this application the court appointed three receivers, with authority to take charge of all the property and operate the mills. Thereafter the court entered an order requiring all creditors to intervene for the establishment of their claims, by the first Monday in January, 1914, and later made a further order in February, 1914, authorizing a list of 80 creditors to intervene. Following the first order of the court requiring the intervention of creditors,, the appellants other than Craver, respectively, filed their interventions, duly pleading the indebtedness due them by Greer and their mortgage liens, and praying judgment for their debts, foreclosure of their liens and for order of sale. Galt & Galt expressly prayed that no part of the proceeds of the property covered by their lien be used to pay any of the expenses of the receivership until the payment of their debt in full, and Castleberry, Lawrence & Rodden, that their claim be classified as preferred.

At the January, 1914, term of the court Craver presented a motion, alleging that the proceeds of the timber on which his lien existed were likely to be dissipated by the indebtedness created by the receivers, and asked that they be required to desist from cutting any of it; but if such should be permitted, that a special fund be created in the ■hands of the clerk of the court to represent the value of the timber which was cut. An order was entered on February 20, 1914, creating such fund and providing that it should not be used for any other purpose. On March 20, 1914, judgment was entered in Craver’s favor for his debt and for foreclosure of his lien. At the same time similar judgments were rendered in favor of the other appellants. An interlocutory decree was entered on the same date, making a classification of claims, Class A to include court costs and expenses of administration, with salary for the attorneys of “the applicant” and the receiver ; Class B, the claims of laborers; Class C, mortgages, vendor’s liens, and other contract liens; Class D, materialmen’s liens adjudged to have a lien under the statute; and Class E, the unsecured debts. In the judgment rendered in Craver’s favor it was recited that the court reserved the right to sell the property in pursuance of the foreclosure decreed, and that until the satisfaction of Craver’s debt the receivers should pay, as a separate fund, into the hands of the clerk of the court $1.50 per thousand feet, to stand in the place of the timber, and to be exempted from all other charges and ex-, penses; and as to the timber thereafter cut from the land, it should be adjudged as an operating expense of the receivers.

The receivers operated the plant until August, 1914, at a loss, the operation being discontinued by an order of the court at that time. At different times personal property belonging to the estate, and covered by the appellants’ liens, was sold by the receivers under the court’s orders. Debts were incurred by the receivers, under the authority of the court in the necessary operation of the plant and business, amounting to approximately $6,590, of which about $800 represented the claims of laborers, all of which were unpaid at the time of the rendition of the final decree. The estimated value of ihe assets of the estate on hand is about $10,000, materially less than Craver’s judgment and the debts of the receivership, practically all of the property on hand being that impressed with the liens of the respective appellants. The claims of creditors in Classes C, D, and E, according to the order of the court, aggregate more than $22,000.

On May 30, 1914, Craver presented a motion asking that the court order the operation of the plant to be discontinued, and that the property subject to his mortgage be sold to satisfy his judgment. This was opposed by the receivers, and the motion was thereupon denied. In July, 1914, he filed another similar motion, which was also denied. The appellants C'astleberry, Lawrence & Rodden at one time joined other creditors in an application for the appointment of a master in chancery, but it was dismissed without action by the court.

At the creditors’ meeting held prior to the filing of the application for the appointment of the receivers, about 80 per cent, of Greer’s creditors were present and represented. Craver was present, but did not vote or participate in the discussion of the plan for a receivership. It appears that he said nothing at the meeting. The cashier of the appellant bank was present as its representative, participated in the proceedings, and acted as one of the committee appointed to select the person to be recommended to the court for appointment as the active receiver. One of the firm of Galt & Galt was present, but in tiie proceedings neither objected nor consented to the proposal for a receivership. No member of the firm of Castleberry, Lawrence & Rodden was present, nor were they represented.

The final decree was rendered after a hearing before the court, and a motion for new trial was not filed by either of the appellants. The assignments of error in the Court of Civil Appeals assailed the ruling of the trial court in classifying the debts of the receivership as superior to the mortgage debts of the appellants, and ordering then-payment out of the proceeds of the property directed to be sold, accordingly.

Four questions are certified by the honorable Court of Civil Appeals as follows:

“ (1) Whether or not, under the statute and the present rules for the courts of the state, it was necessary for appellants to have made a motion for new trial in the trial court in this cause to entitle them on appeal to a revision of the judgment, either as pertaining to question of fact or question of law, or as well to questions of law as to questions of fact involved in the case. (‘A fundamental error’ excepted from the question.)”

And in the event of negative answer to the foregoing:

“(2) Whether or not the evidence, which is fully set out above, when considered with reference to the pleadings and motions in intervention of each of the appellants, is sufficient to support the conclusion of fact, as comprehended in the judgment of the trial court, that
“(a) Appellant D. C. Craver acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant; that
“(b) Appellant National Bank of Daingerfield acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant; that
“(c) Appellants Galt & Galt acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant; that “(d) Appellants Castleberry, Lawrence & Rodden acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant.
“(3) Whether or not the trial court erred, as done, in adjudging the necessary debts incurred by the receiver in continuing the business and operation of the plant during the receivership to be paid from the proceeds of the sale of the specific property covered by appellants’ mortgages in priority and before the payment of “(a) Appellant D. C. Craver’s debt and mortgage ;
“(b) Appellant National Bank of Dainger-field’s debt and mortgage;
“(c) Appellants Galt & Galt’s debt and mortgage ; and
“(d) Appellants Castleberry, Lawrence & Rodden’s debt and mortgage.”

The first question was definitely settled by Greer, Mills & Co. v. Featherston, 95 Tex. 654, 69 S. W. 69. The trial there considered was before the court, without a jury, the appeal was prosecuted upon a statement of facts, without conclusions of law or fact filed by the trial judge, and the judgment was assailed as being contrary to the law and the evidence. Having in mind, as it must be assumed, the rule early announced in Foster v. Smith, 1 Tex. 70, and constantly since adhered to, that in jury trials the grounds of complaint against the verdict must, in a motion for a new trial, be called to the attention of the trial court to entitle to revision upon appeal questions essentially involving the jury’s action, it was held that in trials without a jury a different rule prevails, since there the judgment is wholly the act of the court itself, rendered upon a consideration of all phases of the evidence, and presenting a question of law, as to which —the judge having once ruled, and it not being presumable that he will change his ruling — there could be no reason for requiring a motion for a new trial. The decision was also rested upon the statute, then article 1333, R. S. 1895, which, in its relation to trials before the court, declared:

“And it shall be sufficient for the party excepting to the conclusions of law or judgment of the court to cause it to be noted on the record in the judgment entry that he excepts thereto, and such party may thereupon take his appeal or writ of error ■ without a statement of facts or further exceptions in the transcript, but the transcript shall in such case contain the * * * conclusions of fact and law aforesaid and the judgment rendered thereon.”

Such is still the statute law, this provision being, in exact terms, article 1991, R. S. 1911. The question remains, therefore, controlled by that decision.

The statute is plain in its declaration that upon causing tne exception'to be noted in the judgment entry, the party may, without further formality, take his appeal or writ of error. If he so elects, he may do so without a statement of facts, but upon the judge’s conclusions of law and fact, where request has been made that they be filed. He may appeal only upon a statement of facts, or without either conclusions of fact or a statement of facts, since the filing of neither is made a condition of the right of appeal. Whatever be the course pursued in these matters, it is not necessary in such trials that a motion for a new trial be filed, though it is an optional and commendable practice.

Because of the adoption by this court on January 24, 1912, since the' decision of Greer, Mills & Co. v. Featherston, of amended rule 24 (142 S. W. xii), providing that “a ground of error not distinctly set forth in a motion for a new trial in the cause * * * shall be considered as waived,” it has been ruled by some of the Courts of Civil Appeals hat the holding in that case is no longer authoritative. But a construction of amended rule 24, which gives it that force, itself invalidates the rule. This court, as emphasized in Railway Co. v. Beasley, 155 S. W. 183, where both this rule and amended rule 25 (142 S. W. xii) were considered, is by the Constitution denied the authority to establish a rule of procedure which is inconsistent with a statute; and the rule is therefore to be understood as without application to a trial in which the statute declares the appeal may be taken without the necessity of a motion for a new trial. Certainly it should be considered as in harmony with an express decision of this court that such is the effect of the statute in trials of this nature.

No confusion on the subject is found in the rules when they are considered as a body and in the light, of the decisions of this court, for in other rules it is clearly recognized that not in all trials is a motion for a new trial necessary in order for the appeal to be considered. Rule 71a for the district and county courts (146 S. W. vii) reads:

“71a. A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.”

This exception is without meaning unless it refers to trials before the court without a jury. This is also true of the provision of rule 101a for the same courts (159 S. W. xi), adopted to meet the act of the Thirty-Third Legislature (chapter 136), respecting assignments of error, that:

“All errors not distinctly specified in such motion; or in the assignments of error where a motion for a new trial is not filed, shall be waived.”

That the question in all of its phases may be relieved of any doubt we have deemed it proper to state in this opinion that the right to have the appeal considered, in cases of this character, without having filed a motion for a new trial, is not dependent upon conclusions of fact or law being filed by the trial judge, as seems to have been affirmed by two of the Courts of Civil Appeals in Cooney v. Dandridge, 158 S. W. 177, and Moore v. Rabb, 159 S. W. 85, each citing the decision of the Court of Civil Appeals for the Fourth District in American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286. In its application to trials before the court, article 1991, after declaring that the appeal may be taken upon exception to the conclusions of law or the judgment being noted in the judgment entry without a statement of facts or other exceptions in the transcript, does provide that in such cases the transcript shall contain the conclusions of fact and law, as it is also required to contain the judgment rendered. It is not made the duty of the judge, however, to file his conclusions except at the request of one of the parties, and the making of such request is left optional with the parties. Article 1989. It cannot therefore be supposed that in such cases the right of appeal, without other action than causing due exception to be noted, is conditioned upon the filing by the judge of his conclusions. The direction of the statute that the trans-script shall contain them, means only that they are to be so included in the record when a party has requested that they be filed.

Upon the other questions, it is hardly necessary to restate the general rule that a receivership is always subject to vested rights. As broad as are the powers of a court of chancery, it is without authority to impair the force of contracts. Where the court takes charge of railroads or other corporations affected with a public use, and undertakes to operate them through a receiver, the necessary debts of such operation may, as against all parties to the suit, be made a prior lien upon the income, and, if that be insufficient, upon the property itself. But, as.has been frequently stated, this is an extraordinary power; and it is exercised only because of the public duty resting upon such corporations and the public interest accordingly involved in the continuance of their operation.

On the other hand, the conduct of the business of an insolvent private corporation, or an insolvent person, is no part of the duty of a court of equity; and the authority, if it exists, for the displacement in such receiverships of a vested lien for indebtedness incurred through an operation of the business by the court must be found in an estoppel which is justly enforceable against the owner of the lien. The distinction which governs the question, according to whether the property is impressed with a public use or is purely private in its nature, is generally recognized, and is announced in the decision of this court in Clint v. Houston Ice & Brewing Co., 169 S. W. 411.

Where a lienholder procures the appointment of a receiver with the power to operate the property, which is subject to his lien, in a continuance of the business to which it is devoted, it is only just that the consequent expenses should take precedence over his lien, since it must be anticipated that such operation will be attended with cost, and possibly in excess of the income. Heisen v. Binz, 147 Ind. 284, 45 N. E. 104. The same rule should be applied to a party who, while not directly the applicant upon whose petition the receiver is appointed, is privy to the action which results in the appointment. But the indebtedness of the receiver has no right of priority over the vested lien of a creditor who neither applied for the receivership nor was a party to its procurement, merely because he is a party to the suit. Metropolitan Trust Co. v. Railroad Co., 103 N. Y. 245, 8 N. E. 488.

These, in brief, are the principles which, in our opinion, should control the decision of the second and third questions.

The respective liens of the appellants, Graver, Galt & Galt, and Castleberry, Lawrence & Rodden, should not have been subordinated to the indebtedness of the receivers. Neither of them applied for the receivership, and, according to the statement of the case made by the Court of Civil Appeals, neither of them was responsible for it. It was Craver’s suit, already instituted for the enforcement of his lien, that was made use of by intervening creditors to obtain the appointment of the receivers. It could not be held necessary under such circumstances for him to assert the superiority of his lien, for he might well assume that its rank would be preserved by the court, yet h@ did so with reasonable promptness. He followed his motion, made at the January term of the court, after the appointment of the receivers in the preceding November, to prevent the impairment of his lien through the receiver being required to desist from the cutting of the timber, by successive motions that the receivership be closed and his lien be given effect by a sale of the property. His mere presence at the creditors’ meeting at which the receivership was determined upon did not make him a party to the receivership. He did not participate in the discussion and took no part in the proceedings. Nor did the presence of a member of the firm of Galt & Galt at that meeting affect them with responsibility for the receivership, since it does not appear that their representative gave any consent to the proposal or took any action upon it. No member of the firm of Castleberry, Lawrence & Rodden was present at the meeting; nor were they represented. Galt & Galt and Castleberry, Lawrence & Rodden intervened in the suit, but, it seems, that was after the court had directed that creditors, desiring to establish their claims, should enter the suit for that purpose. Both asserted in their pleas of intervention the precedence of their claims.

The attitude, however, of the National Bank of Daingerfield was different. It was active in the procurement of the receivership; its cashier serving as one of the committee selected at the creditors’ meeting to recommend to the court a receiver to be appointed with such powers as, in their exercise, produced the receivership’s indebtedness. Its lien, therefore, is not entitled to prevail over such indebtedness.

It is our opinion, therefore, that the trial court incorrectly concluded that the appellants, Craver, Galt & Galt, and Castleberry, Lawrence & Rodden, acquiesced in and consented to the administration of the property by a receiver, and erred in adjudging the debts of the receivers as entitled to prior payment from the proceeds of property covered by their liens, but correctly determined that the National Bank of Daingerfield consented to the receivership, and properly subordinated its lien to the receivership indebtedness in the judgment; and the second and third questions are so answered.
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