author: FLY, C. J.

text:
    SMALLEY v. VOGT.
    (No. 5251.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 1, 1914.
    On Motion for Reing April 29, 1914.)
    1. Fraud (§ 41) — Actions foe Damages fob Deficient Acbeage — Petition.
    A petition alleging that defendant, in a sale of land to plaintiff, represented that the tract contained 624 acres; that plaintiff refused to accept it unless it was surveyed; that defendant had it surveyed by the county surveyor; that he and the surveyor represented to plaintiff that it contained 624 acres; that plaintiff paid therefor at an’ agreed rate per acre; that he had no reason to suspect there was a shortage until he later had it surveyed; that he relied upon the representations of defendant and his agent, the surveyor; that he had a very limited education, and did not know how to calculate the number of acres by the field notes; that, by the fraud of defendant and the surveyor, he was induced to make the trade and lulled into a sense of security as to the acreage; and that th#re was no other surveyor in the county at the time of the sale— sufficiently alleged defendant’s fraud and an excuse for plaintiff’s failure to discover the fraud.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 36, 37; Dec. Dig. § 41.]
    2. Limitation oe Actions (§§ 96,100) — Computation oe Period — Discoveey of Fraud.
    In cases of fraud or mistake, when the means of discovery are at hand, diligence- must be exercised to discover the fraud or mistake, but the statute does not run until there is some circumstance or fact to arouse suspicion.
    [IOd. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 337, 475, 476, 480-493; Dee. Dig. §§ 96, 100.]
    On Motion for Behearing.
    3. Fraud (§ 59) — Deficient Acreage — Measure of Damages.
    The measure of damages for a vendor’s misrepresentation as to the number of acres, in a tract of land sold at an agreed price per acre was the amount paid by the purchaser for the number of acres which he failed to get, regardless of the increased value of the other land.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.]
    Appeal from District Court, Calhoun County ; John M. Green Judge.
    Action by F. J. Smalley against Gus Vogt. From a judgment dismissing the cause, plaintiff appeals.
    Bevefsed and remanded.
    Wilson & Hamilton, of Port Lavaca, for appellant. W. D. Love, of Uvalde, for ap-pellee.

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

   FLY, C. J.

Appellant sued to recover of appellee the sum of $1,200, alleged to be due by reason of a deficit of 80 acres of land in a tract sold by appellee to him. He alleged that it was represented to him by ap-pellee that the tract contained 624 acres of land, but that appellant refused to accept the tract as containing that number of acres unless appellee had the same surveyed, and appellee secured the services of the county surveyor, and, after the same had been surveyed, both appellee and the surveyor represented to appellant that the tract contained 624 acres of land, and he paid for the same at the agreed rate of $15 an acre; that he had no reason to suspect that there was. a shortage in the land until he had it surveyed in 1913; that he relied upon the representations of appellee and his agent, the surveyor, and believed them to be fair and upright men; that he has very limited education, and did not know how to calculate the number of acres by the field .notes; that by the fraud of appellee and his agent he was induced to make the trade, and “he- was lulled into a sense of security as to the amount of the land and believed that it contained 624 acres, and he (the plaintiff herein) relied on defendant, Gus Yogt, and his agent, the surveyor.” He fully and elaborately alleged his faith and confidence in the representations of appellee and the surveyor, and that there was no other surveyor in Calhoun county at that time. Exceptions were sustained to the petition, and the cause dis: missed.

’ The fraud of appellee was sufficiently set forth in the petition, and the facts which go to excuse appellant in failing to discover the fraud were full and clear enough to carry the case to a jury. The facts show that appellant acted as most, if not all, men would have acted under the circumstances. The business of the world is built upon confidence in the honor and integrity of those with whom we deal. No man, after a tract of land, is surveyed by the seller, bas a resurvey of it, when there is nothing to arouse suspicion, and experience teaches us that few men calculate the amount of land by the field notes in their deeds, and the vast majority could not calculate the acreage if they so desired. The allegations present a case of fraud, and do not show laches upon the part of appellant in "discovering the fraud. The allegations make a case for a jury, and it should be tried on its merits.

The rule as to laches is clearly set forth by Associate Justice Reese of the First Court of Civil Appeals in Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970. The court said: “It is true that with the means at hand, if he had felt called upon to investigate, he could have discovered the mistake, but there was absolutely nothing to arouse in his mind the slightest suspicion with regard thereto. He had been put in possession by .the vendor’s agent, from whom he had bought, of the identical ground sold to him, after the delivery of the deed; had been advised that this was the identical land conveyed by his deed; had the lines and corners pointed out; and, under the eyes of the agent and with his knowledge, had erected his fence and planted his trees. Under these circumstances,- was he guilty, under the law as laid down in the decisions cited, of such laches as to start the statute to running, in failing to get the plat and his deed and with proper assistance verifying the description in the deed to be sure that there was no mistake? A very cautious and suspicious man might have done so, but the man of ordinary prudence, in looking after his business affairs, would have done as Cherry did under the circumstances.”

In cases of fraud or mistake, when the means of discovery are at hand, diligence must be exercised to discover such fraud or mistake; but, in order to start the running of the statute, there must be some circumstance or fact to arouse suspicion. Appellant, in this case, had asked for a survey, and he relied upon his vendor and the surveyor, the agent of the vendor, to make an accurate survey and give him a true and faithful report thereof. The survey was made, and both appellee and his agent reported that the land contained 624 acres. The field notes they gave him, and which were embodied in the deed, called for the meanders of “Chocolate Bayou,” without giving the courses and distances contained in such meanders, and no one could accurately calculate the quantity of land contained within such field notes. Nothing but an actual survey of the land could have revealed to appellant the shortage in the acreage. No reasonably prudent man would have made such survey, but would have relied upon the survey and representations of appellee and his surveyor as to the quantity of land. The deed conveys 624 acres of land, and not that quantity more or less, but appellee and his agent, outside of that recital, assured appellant that there were 624 acres of land. He could not calculate the quantity from the field notes; he was compelled to rely on the representations of two men, in whom he had absolute confidence and trust, and they failed him’. The land had been bought by the acre, and the misrepresentations as to the number of acres caused a loss to appellant of $1,200, if his allegations be true. He should be given the opportunity to prove that they are true.

The cross-assignments are overruled.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee insists that, under the rules promulgated by the "Supreme Court, none of the assignments of error should be considered. Rules were adopted presumably for the protection of the trial and appellate courts; and, while it is a violation of the rules to fail to refer to the page of the transcript where the matter complained of is found, this court, and not appellee, is inconvenienced by it. We believe in a reasonable enforcement of the rules, although it seems to be a hazardous proceeding, in view of the action of the Supreme Court in granting writs of error in several instances where the rules have been flagrantly violated and assignments of error have not been considered because of such infractions. If fundamental error can be predicated on rejected assignments of error which require a scrutiny of the facts, this court is in no position to enforce rules. In the case of Harlingen Land & Water Co. v. Houston Motor Co. (Civ. App.) 160 S. W. 628, there was .but one assignment of error, which in no wise complied with rule or statute, and this court refused to go into the statement of facts to discover errors not indicated in any manner. The Supreme Court granted a writ because a fundamental error had been discovered in the facts This in the face of the declaration in Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533, 124 S. W. 85, that fundamental error does not mean an error “which can be ascertained by looking into the record and considering the evidence.” Another writ has just been granted - in which this court attempted an enforcement of rule 62a (149 S. W. x). Peden Iron & Steel Co. v. Jaimes (Civ. App.) 162 S. W. 965. The assignments in this case were all directed to one point, the action of the court in sustaining exceptions to the petition. It was not necessary to name a certain assignment that was sustained. It was sufficient to hold, as we did, that the petition alleged a ease that should, if sustained by facts, have been submitted to the jury.

The measure of damages in this case is the amount paid by appellant for the land. which lie failed to get. The value of the deficit was $1,200, and to that sum he is entitled, regardless of the increased value of the other land.

The motion is overruled.


source: Caselaw Access Project

author: FLY; C. J.

license: Public Domain

text:
    McALLEN et al. v. CRAFTS et al.
    (No. 5248.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 25, 1914.
    Rehearing Denied April 29, 1914.)
    1. Abatement and Revival (§ 61) — Death of Party— Statutory Provisions.
    Rev. St. 1911, art. 1886, providing that if a cause of action survives a suit shall not abate by reason of plaintiff’s death, but that the executor, administrator, or heir may appear, and, upon a suggestion of such death, be made plaintiff, and article 1887, providing that, if no such appearance and suggestion be made at the first term scire facias shall be issued upon defendant’s application for the executor, administrator, or heir to appear and prosecute the suit, failing to do which, the suit may be discontinued, applies only to cases in which there is only one plaintiff.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 314-319; Dec. Dig. § 61.]
    2. Abatement and Revival (§ 75) — Proceedings to Review — Suggestion of Death.
    Under Rev. St. 1911, art. 1899, providing that where there are two or more plaintiffs and one or more of them die, if the cause of action survive to the survivors, the suit shall not abate by reason of such death, but that, upon suggestion of such death .being entered upon the record, the suit, at the instance of either party, shall proceed in the name of the survivors, the suggestion of death and its entry upon the record are conditions upon which any action is permitted by the court.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 441, 445-465, 467-482; Dec. Dig. § 75.]
    3. Abatement and Revival (§ 61) — Death of Party — Dismissal.
    Under Rev. St. 1911, art. 1890, it was improper for the court to dismiss a suit instituted by three plaintiffs, one of whom died pending the suit, without giving the survivors any opportunity to appear and prosecute the suit.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 314-319; Dec. Dig. § 61.]
    4. Dismissal and Nonsuit (§ 81) — Reinstatement — Notice of Application.
    Where a final judgment was rendered dismissing a cause for want of prosecution, and the term at which it was rendered had ended, the court had no authority to render a judgment denying or granting a motion to reinstate it without reasonable notice of the motion to all of the defendants.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    5. Appeal and Error (§ 927) — Recitals in Judgment.
    On appeal from a judgment sustaining exceptions to a motion to reinstate a cause dismissed for want of prosecution, it could not be presumed that all of the defendants were given notice of the motion, where the judgment recited that certain defendants were not served with notice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by John McAllen and others against Rafaela L. Crafts and others. From a judgment sustaining exceptions to a motion to reinstate the cause after a dismissal for want of prosecution, plaintiffs appeal.
    Reversed and remanded, with instructions.
    See, also, 139 S. W. 41.
    J. D. Childs, of San Antonio, and Graham, Jones, West & Dancy, of Brownsville, for appellants. Jno. C. Scott, of Corpus Christi, for appellees.

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

   FLY; C. J.

This is an appeal from a judgment sustaining exceptions to a motion for a reinstatement of this cause which had been dismissed at a preceding term of the court for want of prosecution. There were three plaintiffs in the suit, John McAllen, James B. McAllen, and John Young, and about two months prior to the term of court at which the cause was dismissed John McAllen died and no executor or administrator for his estate had been appointed.

Articles 1886 and 1887, Revised Statutes, are not applicable to any ease except one in which there is only one plaintiff, and they are referred to merely because appellants attempt to apply them to their case. Article 1S90 alone applies to cases in which there are two or more plaintiffs or defendants. In article 1890 it is provided: “Where there are two or more plaintiffs or defendants, and one or more of them die, if the cause of action survive to the surviving plaintiffs and against the surviving' defendants, the suit shall not abate by reason of such death, but, upon suggestion of such death being entered upon the record, the suit shall, at the instance of either party, proceed in the name of the surviving plaintiffs or against the surviving defendants, as the case may be.” We cannot ignore the provision as to the suggestion of death and its entry upon the record, for that is the condition upon which any action is permitted by the court. No such suggestion was made in this case, but the court dismissed a suit instituted by three plaintiffs, one of whom had died after institution of the suit, without giving the survivors any opportunity whatever to appear and prosecute the suit. That action was not justified by the statute. ■

It is insisted by appellees that there was no final judgment because no notice was given to any of the defendants except Kleiber, and therefore this appeal should be dismissed. If that contention be true, appellants would have the right to appear before the trial court in order to have the judgment made final, and we fail to see what ap-pellees would gain by the dismissal. If the other defendants were not notified, the court should not have sustained demurrers to the petition for reinstatement, but should have postponed the hearing until notice was given.

There had been a final judgment rendered • dismissing the cause, and the term at which it was rendered had ended, and it was absolutely necessary that the defendants should be given reasonable notice of the motion to set aside the judgment and reinstate the cause. De Witt v. Monroe, 20 Tex. 289; Coffee v. Blade, 50 Tex. 117. The motion to reinstate was made as against all of the defendants, and it was fundamental error to entertain the motion before all the parties were notified. We might have presumed that all of them were notified but failed to answer, but we cannot indulge in that presumption, because it is recited in the judgment that Kleiber came, “but defendants Rafaela L. Crafts, John W. X-Xoert (executor of Welcome A. Crafts, deceased), Pilar Leal, Anastaehio Leal, Faustino Yillareal, and Eli Elstuar, were not served with .notice of said application to set aside judgment and they came not.” In order to properly consider the motion to reinstate the cause, all of the defendants should have been notified. The court had no right or authority to render a judgment denying or granting a motion to reinstate.

■ The judgment will be reversed, and the cause remanded, with instructions to the district court to have the defendants notified of the filing of the motion to reinstate, and upon a hearing, of the same apply the law as herein indicated and reinstate the cause.


text:
    WOODS et al. v. BALL et al.
    (No. 5257.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 8, 1914.)
    • 1. Counties (§ 2) — Creation of New Counties — Constitutional Provisions.
    Acts 33d Leg. (1st called Sess.) c. 35, creating Dunn county out of a portion of Duval county held in violation of Const, art. 9, § 1, subd. 2, providing that no new county shall be created so as to approach nearer than 12 miles of the county seat of a county from which it may be, in whole or in part, taken.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 2; Dec. Dig. § 2.]
    2. Constitutional Law (§ 70) — Determination of Validity — Judicial Authority.
    The Legislature is not the ultimate arbiter of the constitutionality of its acts, but such authority is lodged in the judicial branch of the government.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.]
    . 3. Counties (§ 12) — Creation of New County.
    Const, art. 9, § 1, subd. 2, providing that . no new county shall be created so as to come within less than 12 miles of the county seat of the county from which it may be taken, does not mean that the distance from the new county to the county seat of the mother county shall not be measured in a straight line, and, if any part of the line of the new county is nearer than 12 miles of the county seat, the act is unconstitutional.
    [Ed.' Note. — For other cases, see Counties, Cent. Dig. §§ 7-9; Dec. Dig. § 12.]
    Appeal from District Court, Duval County; W- B. Hopkins, Judge.
    Injunction suit by John Ball and others against S. H. Woods and others. From an order granting the injunction, defendants appeal.
    Affirmed.
    Hicks, Hicks & Teagarden, of San Antonio, for appellants. Terrell, Walthall & Terrell, of San Antonio, and G. 0. Robinson and Dougherty & Dougherty, all of Beeville, for appellees.

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

   FLY, C. J.

T. M. Dubose and John Ball, appellees herein, representing themselves as “resident citizens, qualified voters, and owners of real and personal property in that portion of Duval county placed within the county of Dunn under the terms of an act hereinafter mentioned,” applied for an injunction against S. I-I. Woods, county judge of Duval county, E. Carrillo, A. Parr, J. W. Shaw, and J. M. Corkill, commissioners of said county, and the commissioners’ court of Duval county, alleging that, during the first called session of the Thirty-Third Legislature (chapter 35), an act was passed to create Dunn county out of a portion of Duval county; that appellants were preparing to divide the county into precincts, and to call an election of officers in said Dumi county, and to locate the county seat; that the act of the Legislature is in contravention of that part of section 1 of article 9 of the Constitution of the state of Texas as follows: “No new county shall be created so as to approach nearer than twelve (12) miles of the county seat of a county from which it may, in whole or in part, be taken;” that it is also in contravention of section 56 of article 3 of said Constitution, as follows: “The Legislature shall'not, except as otherwise provided in this Constitution, pass any local or special law, authorizing: * * * Locating or changing county seat, * * * creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts.” It was further alleged “that a point on the north line of Dunn county .is eleven and forty-three hundredths (11.43) miles from the county seat, being the unincorporated town of San Diego;” that the courthouse in San Diego is 11.986 miles from a point on the north line of Dunn county, being less than 12 miles from said line. A plat and field notes showing the distances between San Diego and the north line of .Dunn county was attached to and made a part of the petition, as well as the field notes of the north line of said eorfnty. It was admitted in the answer that the 'allegations in the petition as to the distances of the north line of Dunn county from the county seat and from the courthouse, as to the plat, survey, and field notes, and as to other material facts, were true, and they were so found by the district judge, and he also found “that only about six (6) miles along the nearest boundary line between Duval and Dunn counties, as shown by the maps attached to plaintiff’s petition, is it less than twelve (12) miles to the nearest point in San Diego, the county seat of Duval county, and an arc with a twelve-mile radius drawn from such point would cut into Dunn county six miles long and one-half (%) mile wide at its greatest depth.” The court held that the act creating Dunn county was violative of section 1, subd. 2, of article 9, and section 56 of article 3 of the state Constitution, and an injunction was granted against appellant to restrain them and their successors in office from dividing Dunn county into precincts, and from holding an election therein; and that the territory sought to be put in the county called Dunn by the Legislature be restored to Duval county.

It is with reluctance that this court entertains an attack upon the constitutionality of a statute enacted by the Legislature of the state, but it is a proposition well established by the American courts that the Legislature is not the ultimate arbiter of the constitutionality of its acts, but such authority is lodged in the judicial branch of the government. The right of judicial censorship over statutes has been often assailed, and not to a greater extent than by the strenuous ex-President of the United States, who has founded a new party, founded, at least in part, upon antagonism to what he denounces as “judicial nullification,” and who, as a balm for ills, real or imaginary, would submit the constitutionality of the laws of the Legislature, • as well as 'the decisions of courts, to the plebiscite, who are counseled by him to study the history of France, whifch gives untrammeled power to the legislative branch of its government; the only right reserved in the French Constitution against usurpation of power and tyranny by the Legislature being the right of revolution. The American conception ot government is of a different kind from that of the Frenchman, and we doubt that a citizen of our republic can gain any helpful knowledge of popular government by a. study of the French system. Ours is a government in which its attributes and powers have been confided to certain distinct branches, each of which is a check upon the other, with the judicial system as the ultimate resort whenever an attempt is made by any branch of the government to exceed its powers or interfere with the charter of our rights, the organic law of the land. The power intrusted to, or assumed by, the judiciary of passing upon the constitutionality of the acts of other branches of the government has been acquiesced in so long as to become a necessary part of the American system. The power intrusted to the courts has at times, doubtless, been abused, but the remedy is not in revolution or the adoption of imperfect and undemocratic methods of other governments that have lagged far behind the American government in the progress towards the establishment of popular institutions.

A law cannot be held to be constitutional merely because the Legislature passed it. No one is willing to attribute such infallibility to a Legislature, and the courts should never hesitate to protect from assault the rights secured by the supreme law of the land. As said by Justice Harlan, in Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819: “The idea that any Legislature, state or federal, can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with 'the fundamental law is in opposition to the theory of our institutions. The duty rests upon all courts, federal and state, when their jurisdiction is properly invoked, to see to it that no right secured by the supreme law of the land is impaired or destroyed by legislation. This function and duty of the judiciary distinguishes the American system from all other systems of government. The perpetuity of our institutions and the liberty which is enjoyed under them depend, in no small degree, upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land.”

These prefatory words have been written, not because of any doubt of the courts having full right and authority to pass upon acts of the Legislature, but in view of the contention of appellees that, “the Legislature having passed the act, it cannot be inquired into.” No man, nor set of men, in America has been clothed with power to do things which cannot be inquired into by some agency of the people, and infallibility of word or action is a status that is conceded to no branch of the government.

It is also insisted that the presumption will prevail that the Legislature acted upon sufficient facts when the law was enacted. Such presumption might prevail in the absence of evidence, but it cannot be expected that this court will indulge in presumption or surmise in the face of the proof that the Legislature, if it had the • facts, acted directly against them. We must conclude that the Legislature was not in possession of the facts, or it would not have acted in defiance of the Constitution of the state. But, if the Legislature had the facts, it acted in defiance of them, and created a county “so as to approach nearer than 12 miles of the county seat” of the county from which it was taken. It is vain and useless to talk of infallibility of the Legislature or presumptions in favor of its acts in the face of stern, unrelenting facts that brand the act creating the new county as violative of a plain constitutional provision. The Constitution does not say II14 miles, nor near 12 miles, but that “no new counties shall be created so as to approach nearer than twelve miles of the county seat of any county from which it may, in whole or in part, be taken.” If we can hold that such new county can approach 70 feet or 2,640 feet less than 12 miles, we could, with equal propriety, hold that it could approach within 11 or even 10 miles of the county seat. We must enforce the Constitution as we find it, and neither add to nor take away from its words.

Nor can we accede to the proposition that the Constitution meant that the distance from the newly created county to the county seat of the mother county should not be measured in a straight line, but in a tortuous, winding one, so as to cover the shortcomings of the Legislature. The Constitution suggests the “straight and narrow path,” and this court will endeavor to walk therein.

There is no Texas decision bearing directly upon the question involved in this case, but similar constitutional provisions have been construed in other states, and the weight of authority strongly sustains the conclusion of this court, in holding that no law creating a new county out of an established one can be valid, unless the nearest approach of the lines of the new county are not within the distance limit prescribed by the Constitution. A review of some of these decisions, to which our attention has been called, will be of interest, and perhaps render more satisfactory the opinion of this court.

In Kentucky the Constitution provides that no county should be established whose boundary line should pass within ten miles of the county seat of the county sought to be divided. The facts in the case of Zimmerman v. Brooks, 118 Ky. 85, 80 S. W. 443, showed that the county of Beckham was created out of portions of three counties, and the boundary line of the new county ran within less than ten miles of the county seat of Carter county, and the creation of said new county also left Carter county with less than the constitutional area. There was a review, by the Kentucky court, of numerous cases, and it was held that parol evidence could be heard as to whether the constitutional area had been lessened by the act, or a boundary line established within less than ten miles of the county seat of one of the parent counties. The court held: “The Legislature, in the creation of new counties, is simply an agency, with well-defined restrictions upon its powers. If it acts in a ease where it has no power to act, its act, like that of any other agent beyond the scope of its power, is void. The county whose rights are affected may complain, and so may any taxpayer who is prejudiced, for the taxpayers have a right to insist upon their constitutional protection against the increased burdens which the formation of the new county will entail.” The court, after stating the different constitutional provisions to be complied with in establishing new counties, among the number being that the boundary line of the new county must not pass within less than ten miles of the county seat of any county from which a portion of the territory is taken, held: “If any of these conditions are wanting, the act is in violation of the Constitution, and void.”

In the case of Gotcher v. Burrows, 9 Humph. (Tenn.) 585, it was held, in regard to a similar constitutional provision to that in the Texas Constitution: Such a provision is absolutely prohibitory of the power of a Legislature, either in the establishment of a new county, or in taking from one county a portion of its territory and attaching it to another, or in changing'the lines of adjoining counties, to approach the courthouse of a county whose territory is taken nearer than the prescribed distance; and, if this prohibition is violated, the court of chancery will restore the old county to its constitutional limits. That enunciation of the law is sustained in Union County v. Knox, 90 Tenn. 254, 18 S. W. 254; McMillan v. Hannah, 106 Tenn. 689, 61 S. W. 1020; Armstrong v. State, 29 Okl. 161, 116 Pac. 772, Ann. Cas. 1913A, 565; Kline v. State, 146 Ala. 1, 41 South. 952; and State v. Ellis, 42 La. Ann. 1104, 8 South. 305.

There was no attempt to vary the calls made by the Legislature, but by a mathematical calculation it appears that the north line of Dunn county is less than 12 miles from the county seat of Duval county. The Legislature is held to a knowledge, as are the courts, of the boundaries of the different counties, and, looking at the boundaries of the new county in the light of the beginning point, the call for the first line northwest about 37%' miles to the east boundary line of Webb county forms the basis for arriving at the conclusion that the northeast corner of Dunn county and the southeast corner of Duval county on the west boundary line of Jim Wells county where it intersects the north line of Los Ancuas grant is a little over 12 miles from San Diego, and that a line about 37% miles long, run northwest, would at certain points necessarily pass within less than 12 miles of San Diego. That it did so is admitted by appellants. Not only was the nearest point of the town of San Diego less than 12 miles from the line of Dunn county, but the courthouse was also less than 12 miles, and, while it may not be necessary to decide whether, in measuring the distance, the line should be run to the courthouse or the outer edge of the town nearest to the line of the new county, that matter has been settled by the Supreme Court in the case of Ralls v. Parrish, 105 Tex. 258, 147 S. W. 564, in which it was held, in connection with the removal of a county seat within the 5-mile radius of the geographical center of the county, that, where any portion of an unincorporated county seat was situated within the 5 miles, it required two-thirds of the voters to move it, under the provisions of article 811, Revised Statutes of 1893.

The Kentucky case cited, as well as others therein named, have held that, where the power of the Legislature is limited by the Constitution of the state, parol evidence will be received to show that the constitutional restriction has been disregarded by the Legislature. In those cases it was held that the property owner in the territory affected could sue to prevent the organization of the county, and that right is recognized in Texas. Oden v. Barbee, 103 Tex. 449, 129 S. W. 602.

Every reasonable presumption should be indulged in support of an act of the Legislature, hut presumption cannot exist in the face of fact, and, as the Legislature calls for a line running northwest from the beginning corner to a point on a certain line, that line must necessarily be a straight line, and we cannot presume that the Legislature intended for the line to be run straight until it reached a point where the 12-mile limit was reached, then to curve away from the county seat of the parent county so as to maintain the 12 miles distance, and then curve back into the line called for. The same rules will be applied to a legislative survey as to any other, and it would be preposterous to curve a line in a grant called for as straight. The legislative call is for a line running for 87%' miles in a certain course, to a certain point, and there is no place for a presumption of a curve in the line. We cannot therefore sustain the proposition of appellants “that it should be presumed that the Legislature intended in its calls for that boundary line that, instead of being a straight line throughout its distance, it should run in a straight line from the beginning point, or northeast corner, until it reached a point 12 miles from the county seat of Duval county, then should curve in an are 12 miles from the county seat of Du-val county, where it would intersect the straight line drawn from the beginning corner to the point on the east boundary line of Webb county called for.” That would be drawing too heavily on the law of presumptions to be honored by this court.

The Constitution does not provide that no new county shall be created that approaches nearer than 12 miles along a whole boundary line, but provides that it shall not approach within that distance at any point, and, although Dunn county is less than 12 miles from San Diego, for only 6 miles along its northern border, that is sufficient to bring it within the purview of the Constitution.

We need not discuss the constitutionality of the act under the other provision of the Constitution hereinbefore quoted.

The judgment Is affirmed.


author: WILLSON, C. J.

text:
    HOLBROOK v. THORNTON.
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1914.)
    Appeal and Error (§ 1012) — Review—Findings op Fact.
    A finding by the trial judge on the weight of the evidence will not ,be reversed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by W. B. Thornton against J. C. Holbrook. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Meador & Davis and M. M. Parks, all of Dallas, for appellant. J. Hart Willis and Spence, Knight, Baker & Harris, all of Dallas, for appellee.

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

   WILLSON, C. J.

By their promissory note, in form joint and several, dated January 1, 1912, one George W. Poynter and appellant undertook, 90 days after the date thereof, to pay to appellee or his order $200 and interest thereon at the rate of 10 per cent, per annum from the date of the note. In the note was a stipulation binding the makers thereof, if It was not paid when due, “to pay all costs necessary for collection, including 10 per cent, attorney’s fees.” It did not so appear on the face of the note, but the fact was that appellant executed it as a surety merely. Poynter died the latter part of September, 1912, leaving the note wholly unpaid. Afterwards appellee, alleging that Poynter’s estate was notoriously insolvent, brought suit against appellant alone, and obtained a judg-' ment against him for the sum of $256.93, as the amount (principal, interest and attorney’s fees) due on the note. In his answer appellant alleged, as a reason why a recovery as sought should not be had against him, that appellee, without his consent, after the note matured, “for a valuable consideration [quoting] extended the time for payment of the said note for a definite period.”

The testimony relied on to support this contention was a letter written by appellee to one McCurry on September 24, 1912. In this letter, after expressing sorrow over the death of Poynter, appellee said: “I have a note against him, signed by J. C. Holbrook. * * * The note is due, and is for $200, drawing interest since January 12th. George (meaning Poynter) said he would pay this off the 15th of next month. I did not need the money, and told him it would be all right.” Whether the statement in the letter, if undisputed, would be sufficient to support the contention appellant makes or not, need not be determined; for it was disputed. Appel-lee testified that as a matter of fact he never agreed with Poynter to extend the time for the payment of the note. “I never did,” he testified, “give George one day of extension of time.”

The cause was tried by the court without a jury. Whether appellee, when he made the statement quoted above from his testimony in the record, told the truth or not, was for the trial court to determine. We cannot say his determination of it against appellant’s contention was unauthorized, and therefore must affirm the judgment.


author: MOURSUND, J.

text:
    HOLMGREEN v. PERKINS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    On Motion for Rehearing, April 22, 1914.)
    1. Intoxicating Liquoes (§ 30) — Local Option Elections — Municipality Subdivisions.
    Rev. St. 1911, art. 5715, provides for the holding of local option elections in commissioners’ precincts, but provides that, where a school district, city, or town may be composed in part of two or more subdivisions of the county, the right to order and hold an election in such district, city, or town shall not be denied, provided, further, that no city or town shall be divided in holding a local option election for any of the other subdivisions named therein, nor shall any school district which has adopted local option be divided in a subsequent election held for any other of such subdivision covering a part of the territory of such school district. Article 5726 declares that, where prohibition has carried in any justice’s precinct, no election shall be thereafter ordered in any town or city of such precinct until after prohibition had been defeated in a subsequent election ordered and held for such entire precinct. Held, that such provisions did not prohibit the holding of a local option election in a commissioner’s precinct comprising part of a justice’s precinct or any other local option district once established.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. § 37; Dec..Dig. § 30.]
    2.. Intoxicating Liquoes (§ 31) — Local Option Elections — Creation op New Counties — Eeeect.
    Const, art. 9, § 1, empowers the Legislature to create new counties out of the territory of existing counties, and article 16, § 20, requires the enactment of a law authorizing the qualified voters of any county to determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. Held that, since it is only after a new county is created that the article allowing the holding of local option elections applies to it, where a part of a justice’s precinct was taken from a county in which local option was in force, and included in a new county, such change terminated the local option law in so far as it affected the territory carved out of the old county; and hence, after the new county had been organized, and a commissioners’ precinct created from a portion of the former justice’s precinct so incorporated into the new county, a new local option election was properly held in such commissioners’ precinct.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 31.]
    Appeal from District Court, Jim Wells County; W. B. Hopkins, Judge.
    Action by A. F. Holmgreen against W. R. Perkins and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Rehearing denied.
    John A. Pope and Jas. ¿M. Taylor, both of Corpus Christi, for appellant. I. A. Patton and J. E. Leslie, both of Alice, and Dougherty & Dougherty, of Beeville, for appellees.

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

   MOURSUND, J.

In 1877 an election was held in justice’s precinct No. 3 of Nueces county to determine whether or not the sale of intoxicating liquors should 'be prohibited in said precinct. A majority voted “for prohibition,” and the result was duly declared, and prohibition went into effect; all steps having been taken in accordance with the requirements of law. The Thirty-Second Legislature created'Jim Wells county from a part of Nueces county; the part taken including a large part of said justice’s precinct No. 3. Jim Wells county was divided into commissioners’ precincts in accordance with the directions of the law creating it. Commissioners’ precinct No. 1 is carved from that portion of said justice’s precinct No. 3 of Nueces county contained in the new county, but does not embrace all of that portion of said justice’s precinct No. 3 contained in such new county. In October, 1912, an election was held in such commissioners’ precinct No. 1 to determine whether the sale of intoxicating liquors should be prohibited therein, at which election prohibition was carried, and the necessary steps taken and orders adopted to put the law in force. This is a suit brought by appellant against the county judge and county commissioners of Jim Wells county to contest said election.

The trial court concluded that, as said justices’ precinct No. 3 had been divided into two portions, one situated in Nueces county, and the other in Jim Wells county, no election could be held in the territory originally composing said precinct, the Legislature having provided no method or means whereby said election could be ordered and held, and that consequently the original local option that existed by virtue of said election of 1877 became of no force or effect, and was repealed. He therefore held the election in commissioners’ precinct No. 1 of Jim Wells county to be legal, and entered judgment against contestant. '

Appellant’s contentions, briefly stated, are as follows: (1) That the election in commissioners’ precinct No. 1 was void because not held in the entire territory' in which prohibition had been adopted in justice’s precinct No. 3 of Nueces county by the election held in 1877. (2) That it was void because not held in all the territory out of said justice’s precinct No. 3 embraced within the newly created county of Jim Wells.

The Court of Criminal Appeals, in the case of Marcaro Sandaval v. State, 162 S. W. 1148, opinion delivered January 14, 1914, held the election in said commissioners’ precinct No. 1 of Jim Wells county valid; the court saying: “It is true that, if no other election had been held in said justice precinct,. while it was a part of Nueces county, and no election had been held in that part of said justice precinct wbieb was cut off and made a part of Jim Wells county, after tbe latter county was properly organized, prosecutions under the law as put in force in 1877 in said justice precinct would still be in force, and a prosecution could be bad in Jim Wells county, if tbe sale was made in that part of tbe justice precinct wbieb bad been made a part of Jim Wells county. Still we cannot believe tbe Legislature intended that Jim Wells county, after its organization, could not thereafter, in any of its proper subdivisions, hold an election and put tbe law in force as it existed at tbe time of said election, even though tbe territory embraced therein should be only part of tbe territory embraced originally in said justice precinct or any other part of tbe territory cut off from Nueces county. In other words, we are of tbe opinion that, when tbe Legislature created Jim Wells county, and it was properly organized, it could then bold a prohibition election in any of its territory authorized by law, and if prohibition carried, and tbe penalty at tbe time was different from what it bad theretofore been in that part of tbe original county, such election and. law, with tbe increased penalty, would then go into effect, even though such territory embraced only a part of tbe same territory where tbe original election bad been held, and that tbe law by such latter election then put in force would control and supersede such law as theretofore was put in force while tbe territory was part of tbe other county.”

Tbe effect of this bolding is: (1) That by the creation of tbe new county two districts were formed in which local option remains in force under an election held in tbe two at a time when they constituted a justice’s precinct. (2) That tbe commissioners’ court could legally take part of one of these two districts and make a commissioners’ precinct out of it, and bold a local option election therein. (3) That local option law adopted in such commissioners’ precinct supersedes tbe other law in tbe territory embraced therein. (4) That the old local option law remains in force in that part of tbe district situated in Jim Wells county not embraced in tbe commissioners’ precinct. It would necessarily follow that a justice’s precinct or school district may be carved out of tbe remaining portion of original justice’s precinct No. 3 of Nueces county situated in Jim Wells county, and not embraced in commissioners’’ precinct No. 1, and local option elections may be held in such other districts.

The election in commissioners’ precinct No. 1, bad it resulted against prohibition, would not have destroyed tbe local option existing therein, if it was carried over from Nueces county. See Ex parte Pollard, 51 Tex. Cr. R. 488, 103 S. W. 878, and cases cited therein; Elliott v. State, 44 Tex. Cr. R. 575, 72 S. W. 837; Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635.

Tbe Court of Criminal Appeals, in the Randall Case, 50 Tex. Cr. R. 519, 98 S. W. 870, held that no election could be ordered for a commissioners’ precinct composed partly of a justice’s precinct in which prohibition was already in force; and a reading of tbe opinion in tbe Mills (46 Tex. Cr. R. 224, 79 S. W. 557) and Elliott Cases (44 Tex. Cr. R. 575, 72 S. W. 837) leads us to conclude that prior to the decision in tbe Sandaval Case that court bad always adhered to tbe view that, when prohibition bad been adopted in a subdivision, no additional law could be voted therein, except by an election for tbe whole county. But, according to tbe Sanda-val Case, tbe court has now held that, where local option is in force in a large territory, and subdivisions known to tbe law are created therein, tbe law does not prohibit tbe piling up of prohibition laws upon portions thereof by bolding elections in smaller subdivisions contained therein. This bolding appears to be justified by tbe decision of tbe. Supreme Court in the case of Griffin v. Tucker, supra, in which the Randall Case was disapproved, and tbe rule announced that tbe general power given in article 5715 (Statutes 1911) to hold elections in commissioners’ precincts, not being qualified by statute to prevent its exercise in precincts in which there were minor subdivisions having iocal option in force, authorized tbe bolding of elections in a commissioners’ precinct composed of two justice’s precincts in one of which local option was in effect. Tbe following qualifying clauses are contained in article 5715: “Provided, that where a school district, city or town, may be composed in part of two or more subdivisions of tbe county, named hereinbefore, tbe right to order and bold an election in such school district, city or town, shall not be denied; and provided, further, that no city or town shall be divided in bolding a local option election for any of tbe other subdivisions named herein; nor shall any school district which has adopted local option be divided in a subsequent election held for any other of such subdivision covering a part of the territory of such school district.”

Article 5726 contains the following proviso: “Nor in any case where prohibition has carried in any justice’s precinct shall an election * * * be ordered thereafter in any town or city of such precinct until after prohibition has been defeated at a subsequent election ordered and held for such - entire precinct.”

These qualifications do not prohibit the holding of an election in a commissioners’ precinct composing part of a justice’s precinct or any other local option district once established; so it seems, under the ruling of the Supreme Court, such an election as is being considered in this case may be held under the general power given in article 5715. Tlie Supreme Court did not concede any importance to tlie fact that in the election considered by it an additional local option law was made effective in territory already under the law, and the fact that such is the effect of the election now being considered by us is therefore entitled to no weight, unless we find that the Constitution or statutes contain provisions which apply to the latter case, and not to the former. The Supreme Court held that the language, “determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits,” used in article 16, § 20, of the Constitution, should not be given the effect given in the Randall Case, because to do so would enable a smaller precinct, by holding an election, to prevent the larger precinct, for two years, from holding an election, as contemplated by the first part of said article 16, § 20. The size of the subdivision cannot control, because local option might be adopted in a very large justice’s precinct, and a very small portion of such precinct be in a commissioners’ precinct smaller than such justice’s precinct, yet the commissioners’ precinct could hold an election, under the reasoning of the court in said case. To hold otherwise would be to deprive the commissioners’ precinct of its right to an election; but no sucjh reason can be urged in favor of permitting elections by which the law is again enacted by adopting it in a small precinct situated entirely within á larger one. By refusing to permit such an election, no one would be deprived of any rights. But, .under the decision of the Supreme Court, we feel constrained to hold “that the right of each subdivision is given in the same language,” and that therefore a subdivision may hold an election even though contained entirely in a larger one, despite the fact that those opposing prohibition have nothing to gain, and those favoring it have nothing to lose. We therefore hold that, if that part of justice’s precinct No. 3 of Nueces county embraced within the boundaries of Jim Wells county became a part of the new county as territory in which local option remained in force, such fact would not render invalid the election contested in this suit.

However, we do not agree with the Court of Criminal Appeals in its conclusion that local option was carried into the new county. We think the trial court was correct in holding the election valid because prohibition was not carried into the new county with the territory taken from the old. Article 9, § 1, of the Constitution empowers the Legislature to create new counties out of the territory of existing counties. Article 16, § 20, requires the Legislature to enact a law whereby the qualified voters of any county, etc., may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. The law was enacted. It vests the power of calling such elections in the commissioners’ court of the county in which local option is sought to be put into effect. When a commissioners’ court of a county has legally ordered and held an election, local option remains in force in the territory in which such election was held until it is voted out by the qualified voters of the same territory. Under the Constitution, no one else can determine such question for said voters. But we do not think such construction of article 16, § 20, applies until the remainder of the same article applies. It is only after a county is created that the article allowing the holding of local option elections therein applies to such county. It was not intended that the qualified voters of one county could ever make a local law for all or a part of another county. If local option is carried .into a new county by virtue of an election held in the old county, a subdivision of a new county may have a local law which the people living in that subdivision did not vote upon themselves, and would not have voted upon themselves had the matter been left to their decision. They would have a law, not adopted by themselves, but jointly by them and the qualified voters of another county. It cannot for a moment be contended that the creation of the county did not affect in any manner the status of justice’s precinct No. 3 of Nueces county, and that local option could not be repealed in any part thereof without holding an election in all of it, because, were we to so hold, we would, in effect, hold that a part of the citizens of our state could be deprived of their right to repeal the law. Ex parte Fields, 86 S. W. 1022. No provision is made for the holding of an election in such precinct No. 3. It would have to be held in two counties, and no power is given to either to order or hold the same. Nor do we think the Legislature could give such power in view of article 16, § 20, of the Constitution.

We cannot avoid the proposition that the status of the precinct is affected by the creation of the new county. Then the question arises whether it is only to the extent of dividing it into two local option subdivisions, in which local option will be in force until voted out by the qualified voters thereof, or whether the part in the new county is free from the local law. Either holding does away with the rule that the law can only be voted off as it was voted on. We think, however, that said rule does not apply until the conditions exist which authorize its application, namely: That a county is created, and the law adopted therein, under orders by the commissioners’ court of said county, and by vote of the qualified voters of the territory in which the election is held.

The power to create a new county implies the power to destroy the old to the extent that its territory is taken for the new county, and such destruction carries with it the local option law adopted therein while it was a part of the old county. We conclude that the local option law was not in force in Jim Wells county at the time the election in question was ordered, and that therefore said election is valid. In support of this conclusion, we cite the following authorities, none of which are more than merely persuasive: Clark v. Goss, 12 Tex. 397, 62 Am. Dec. 531; Wright v. Adams, 45 Tex. 138; State v. Cook, 78 Tex. 415, 14 S. W. 996; Galveston v. Posnainsky, 62 Tex. 126, 50 Am. Rep. 517; People v. Morell, 21 Wend. (N. Y.) 575; State v. Donovan, 61 Wash. 209, 112 Pac. 260.

The judgment is affirmed.

On Motion for Rehearing.,

•We overrule the motion for rehearing because fully convinced that the election is valid on the ground that local option was not' carried into the new county with the territory taken from Nueces county. As to the conclusion that, under the holding of our Supreme Court in the Griffin v. Tucker Case, an election may be held in a small precinct entirely contained in a larger one in which local option obtains, we have great doubt. We would not so construe the law as an original proposition, and doubt whether the expressions contained in the opinion in said ease justify us in assuming that the Supreme Court would so hold. Giving the statute a construction which would not impute to the Legislature the intention to permit the piling up of useless and expensive elections, we think it should be held that an election, cannot be held in a small precinct entirely contained in a large precinct ’in which local option is in force. Statutes, when the terms used are ambiguous, should be construed so as to avoid absurdity, hardship, or injustice, and to favor public convenience. Sutherland on Statutory Construction, § 324. Surely the permitting of elections which there would be little or no inducement for either side to attend would be something which should not lightly be imputed to the Legislature. We therefore base our affirmance upon the ground that the election was held in territory in which there was at the time no local option law in force.

The motion for rehearing is overruled.


text:
    GALVESTON-HOUSTON ELECTRIC RY. CO. et al. v. STAUTZ.
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.)
    1. Evidence (§ 29) — Judicial Notice.
    Sp. Laws 1909, pp. 601-611, will not be considered by the courts, in the absence of proof of its existence; there being no provision therein making- it a public act and requiring the courts to take judicial notice of it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. § 29.]
    2. Teial (§ 194) — Instructions—Jury Question.
    In an action for damages for injury to plaintiff’s sailboat by defendants’ failure to lift a bridge, which they were operating under a contract with the owner, to a sufficient height to permit the vessel to pass, it was error to charge, as a matter of law, that a failure to lift the bridge to a perpendicular position was negligence; that being a jury question.-
    [Ed. Note. — For other cases, see Trial, Cent. Dig. 413, 436, 439-441, 446-454, 456-466 ; Dec. Dig. § 194.]
    3. Navigable Waters (§ 20) — Obstruction by Beidge — Actions—Evidence.
    In an action for injury to plaintiff’s sailboat by defendants’ failure to lift sufficiently high a lift bridge maintained by defendants over a part of Galveston Bay, the state of the wind and tide at the time, as well as the character of the vessel, should be considered in determining the questions of negligence and contributory negligence.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. •§§ 73-99; Dec. Dig. § 20.]
    4. Evidence (§ 423) — Pakol Evidence-Modifying Weiting.
    Evidence contradicting a written agreement with respect to whether the liability thereunder was joint or several was properly excluded.
    [Ed. Note. — For other eases, see Evidence, Dec. Dig. § 423.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Henry Stautz against the Galveston-Houston Electric Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Terry, Cavin & Mills, W. T. Armstrong, and John G. Gregg, all of Galveston, for appellants. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

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

   FLY, C. J.

This is a suit for damages, instituted by appellee against the Galveston-Houston Electric Railway Company, to recover damages alleged to have accrued by reason of the failure of said company to raise the lift bridge on the Galveston Causeway, a structure across Galveston Bay that connects Galveston Island with the mainland. By an amended petition the Gulf, Colorado & Santa Fé Railway Company and the Galveston, Harrisburg & San Antonio Railway Company were also made defendants. A trial by jury resulted in a verdict and judgment for appellee in the sum of $500.

The causeway from Galveston Island to the mainland has in it a bridge which can be lifted to a perpendicular position so as to leave an open space of 100 feet for the passage of boats. Appellee was the owner of a sailboat, and was desirous) of passing through the causeway, and, when he got in 150 or 200 yards of the lift bridge, he blew his horn, and those in charge lifted the bridge until it stood at an angle of about 45 degrees, leaving about 50 feet of the passageway open. Appellee endeavored to) pass through the opening, but failed to do so, and ran his boat into a pier, and damaged it so that it sank in a few moments. Appel-lee escaped in a small boat.

There was a contract made between Galveston county and appellants, whereby a certain part of the causeway was leased to them for a number of years, in consideration of which lease they agreed, among other things, that they would be liable for all damages from a failure to repair and maintain the causeway and bridge, as well as for all damages to persons. The duty of operating the lift bridge was placed by the contract on the steam and electric railways. The contract was approved by the Railroad Commission of Texas, and in the argument of ap-pellee’s counsel it is claimed that it was approved by the Legislature of the state.

No evidence of the legislative approval appears in the statement of facts, but this court is referred to the Special Laws of 1909, pp. 601-611. That act should not be considered in the absence of proof of its existence, there being no provision in the act making it a public one and requiring the courts to take judicial notice of it. Holmes v. Anderson, 59 Tex. 481; City of Paris v. Tucker, 101 Tex. 99, 104 S. W. 1046. We shall, however, consider the contract as though it had been approved and confirmed by the Legislature, and thereby give it the effect of a public statute. We do this in view of another trial of this cause, when it would be proved, and the claim made that it rendered the act of appellants in not raising the bridge to a perpendicular position negligence per se, and would again justify the court in instruct' ing the jury to that effect.

The duty of lifting the bridge to a perpendicular 'position whenever those in charge of any vessel, large or small, desired to pass through the opening in the causeway, is not hinted at anywhere in the contract, and, in the absence of any such duty being enjoined upon appellants, it was error to instruct the jury that a failure to lift the bridge to a perpendicular position so as to open the passway for the full 100 feet, etc. As said in the case of Railway v. Hill, 71 Tex. 451, 9 S. W. 351: “We have been cited to no case where it has been held competent for the court to charge upon any particular combination of facts as constituting negligence, save when so declared by law.” This declaration of the law is sustained by an unbroken line of decisions from Railway v. Murphy, 46 Tex. 356, 26 Am. Rep. 272, decided in 1876, down to the present time. The provision of law justifying a charge that certain acts constitute negligence must absolutely command or prohibit the doing of the acts, and it cannot be justified on the ground that the defendant has failed to perform certain duties which arise from his relation to the law or the public. For instance, a railroad company is authorized by law to own locomotives and to operate them over its tracks, but a court would not be justified in instructing a jury that it was negligence to operate its trains at a high aijil dangerous rate of speed, in the absence of a law to that effect. The mere fact that appellants were authorized to build the lift bridge and to operate it did not compel them, as a matter of law, to lift the bridge to a perpendicular whenever a vessel was passing through. It was a question of fact as to whether it was negligence in appellants to lift the bridge only halfway up for appellee to pass through the causeway. Neither of the parties has deemed it necessary to cite authorities on this subject.

If, under the circumstances attending the passage of the boat through the causeway, it was negligence to lift the bridge only halfway up, and such failure to so lift the bridge was the direct and proximate cause of the disaster, appellee should recover. And, of course, in passing upon the question of negligence of appellants, or the contributory negligence of appellee, the state of the wind and tide and the character of the vessel should be considered by the jury.

The admissions of appellants to the effect that the causeway was opened for tráffic some two weeks before the accident, and that the Galveston-Houston Electric Company had, during that time, been operating cars on a regular schedule every hour, precluded the raising of any question as to whether the causeway was still in the hands of an independent contractor.

The contract made the different railway companies jointly liable for damaged at the lift bridge. Evidence contradicting the agreement was properly excluded. The authorities cited by appellants have no applicability to the state of facts developed in this case.

For the error indicated herein, the judgment is reversed, and the cause remanded.


author: LEVY, J.

text:
    CARTHAGE ICE & LIGHT CO. v. ROBERTS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 18, 1914.
    Rehearing Denied April 9, 1914.)
    1. Master and Servant (§ 82) — Liens—Perfection.
    Where plaintiff contracted to perform personal services at a yearly wage, and at the expiration of the first year agreed that payment of the balance due him should be deferred, that agreement did not preclude him from acquiring a laborer’s lien for services performed during the second period of service.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 128-134; Dec. Dig. § 82.]
    2. Appeal and Error (§ 909) — Presumptions.
    In an action to perfect a laborer’s lien on property which the court found the defendant had taken by legal process, and upon which plaintiff alleged defendant was asserting some lien, it cannot be presumed on appeal that defendant had acquired possession by valid process or had any valid lien, the trial court having found for the full amount of plaintiff’s claim, although the time for payment of a part had been extended, and plaintiff’s allegations as to defendant’s assertion of a lien haying been traversed by defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Action by L. H. Roberts against the Carthage Ice & Light Company and another and the Security Trust Company. Prom a judgment for plaintiff, the last-named defendant appeals.
    Affirmed.
    The appellee L. H. Roberts brought the suit to recover $853.88 as the balance due for manual labor and services performed by him for R. E. Trabue, doing business under the name and style of the Carthage Ice & Light Company, and to enforce a laborer’s lien upon particular machinery of the plant. The petition alleged,'as determined by the trial amendment, that plaintiff Roberts contracted to work for R. E. Trabiie in his ice and light plant in the capacity of a machinist to repair and keep in good order the engine, boilers, pulleys, and apparatus used in connection with the machinery for manufacturing ice and generating light, and for such labor was to be paid $900 per year, payable at the end of the year from date of employment. The plaintiff performed the duties of his employment, it is alleged, from July 1, 1911, to February 15, 1913, and was paid therefor by R. E. Trabue by store account, except for the sum sued for. The Security Trust Company, a corporation, was made a defendant in the suit, upon the allegation that it was asserting some kind of a claim or lien, of a character unknown to plaintiff, on the property. It is unnecessary to mention the other defendants, as they do not appeal. The defendant Security Trust Company answered by demurrer and special exceptions, and besides a general denial specially averred that appellee was not within the class of laborers entitled to a lien under the statutes, and that his lien was invalid because not in fact filed and fixed within 30 days after the indebtedness had accrued, and estopped by waiver of claim for any lien. The case was tried by the court without a jury, and judgment was entered for the appellee for the amount of his account and foreclosure of laborer’s lien on the particular machinery described. The Security Trust Company appeals, and seeks to have the judgment revised on the errors assigned.
    The Carthage Ice & Light Company is neither a corporation nor a joint-stock company nor a partnership, but is a plant owned entirely by R. E. Trabue, and merely operated under such name by R. E. Trabue. The evidence warrants the findings of fact that appellee Roberts performed work upon machinery and apparatus in connection therewith as a laborer, as alleged, in the ice and light plant owned exclusively by R. E. Trabue, and under express employment and agreement of the amount to be paid by R. E. Trabue, from July 1, 1911, to February 15, 1913, at which latter date Roberts’ employment was terminated. On February 15, 1913, there was due and owing and unpaid by R. E. Trabue to Roberts, for his labor performed during the preceding 11% months the sum of $853.88, and there is no question made in the evidence in respect to the validity of this amount or its correctness. On February 28, 1913, which was the true date, the statutory affidavit was filed by Roberts with R. E. Trabue and the county clerk in support of his claim for the purpose of fixing the statutory lien. The instant suit was filed by Roberts on March 28, 1913. The finding of the court that the Security Trust Company took the property out of the possession of R. E. Trabue “by legal process” is without any evidence in the record to support it. The further findings of the trial court in the record which are here approved can be looked to, if necessary.
    Baker, Botts, Parker & Garwood, Jno. T. Garrison, and W. A. Parish, all of Houston, for appellant. Brooke & Woolworth, of Carthage, for appellees.

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

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

   LEVY, J.

(after stating the facts as above).

The first and second assignments of error presented by the appellant, Security Trust Company, can be here considered together as presenting the same question. The contention under the assignments is in effect that the court erred as a matter of law in enforcing a laborer’s lien on the particular property as against the title and claim to the same made by the Security Trust Company, because it appears under the pleading and proof the services, the value of which was sued for by Roberts as performed by him from July 1, 1911, to July 1, 1912, were accrued and payable under the terms of employment on July 1, 1912, and the maturity of the demand was postponed by contract between Roberts and his employer, Trabue, until July 1, 1913. The appellee Roberts’ petition, amended by a trial amendment, alleged that he. labored in the ice and light plant, at the duties required of him as a machinist, under hire and employment of R. E. Trabue, the owner of the plant, from July I,- 1911, to February 15, 1913, at the agreed pay of $900 per annum, payable at the expiration of a year, and that on February 15, 1913, the day his employment was terminated, R. E. Trabue was due and owing him $853.88, all credits and offsets being fully allowed. Appellee further alleges that as to the services performed from July 1, 1911, to July 1, 1912, for which payment was due by the terms of employment on July 1, 1912, he and R. E. Trabue agreed to extend the period of demand and payment until February,' 1913. The court makes the finding, and same is warranted by the evidence, that after proper credits and offsets were allowed R. E. Trabue, lie was owing the plaintiff Roberts, on February 16, 1913, tbe sum of §853.88 for services. If tRe petition and tRe facts found by tRe court sRould properly be construed to mean, and we think tRey reasonably did mean, that appellee Roberts was asserting a demand, as unpaid, for Ris services from July 1, 1912, until February 15, 1913, as well as tRe balance unpaid from July 1, 1911, to July 1, 1912, tRen tRere is not sRown any agreed extension of due date of tRe wRole demand. TRere would appear an agreed extension of due date only so far as tRe demand of tRe year from July 1, 1911, to July 1, 1912, remaining unpaid by Trabue, is concerned. And interpreting tRe finding of tRe court that tRere was due on February 15, 1913, the aggregate sum of §853.88, as meaning — which we think must be done — that no part of the sum due from July 1, 1912, to February 15, 1913, had been paid or entitled to credit or offset, there appears due and owing by R. E. Trabue to Roberts 7% months’ pay under the second year, aggregating §562.50, leaving only §291.-38 of the §853.88 as due in the first year. Consequently, if appellant is entitled to make the question presented by the assignments, it could only, under the pleading and facts, be made by it so far as the amount due for services from July 1, 1911, to July 1, 1912, is involved. And the assignments only attack the right to a laborer’s lien at all, and do not question the extent of the recovery as to amount for which the property is subjected to the lien.

But it is not believed, as the record is made here, that appellant is in a legal position towards the property to make any contention in respect to the invalidity, if it be so, of a laborer’s lien, even to the extent of the amount agreed to be extended for one year. If the appellant, Security Trust Company, is the owner, or has any lien, claim, or interest in the property on which appellee asserts a laborer’s lien, it does not so appear by any finding of the trial court, or by pleadings, or by any evidence in the statement of facts. It does appear in a finding by the court that the Security Trust Company took possession of the property through legal process on February 15, 1913. But this is the extent of the finding. The “legal process” does not appear in the record, or as offered in evidence in support of a claim by appellant; and we cannot assume, as against the court’s judgment, that he found the legal process was valid or not dismissed at the time of the trial, or that appellant had a claim or title through it, for the court’s judgment involves a contrary finding. And while appellee alleges that appellant is asserting some character of claim or lien unknown to plaintiff, we cannot, as against appellant’s general denial of all facts alleged by plaintiff, look to that and presume some valid claim in appellant to the property. It was essentially a matter of prooí by appellant if superiority of claim or interest to appellee is to be predicated by appellant. The assignments are overruled.

R. E. Trabue does not appeal; and, the Ice & Light Company being purely a fiction without legal entity, it 'cannot be properly held that there is any other appellant before this court than the Security Trust Company.

The third assignment cannot be considered, as not being in the motion for new trial; and, if it should be considered, the same is overruled for the reason given under the previous assignments.

The judgment is affirmed.


text:
    CASTLEBERRY v. BUSSEY et ux.
    (Court of Civil Appeals of Texas. Texarkana.
    March 25, 1914.
    Rehearing Denied April 9, 1914.)
    1. Appeal and Error (§ 547) — Record — Matters Presented foe Review.
    Where, in trespass to try title, the case was submitted upon special issues, and the court also made and filed findings of fact, the findings of the jury and of the court were conclusive on appeal, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    2. Compromise and Settlement (§ 17) — Operation and Effect.
    Where, in a suit for the title and possession of land involving a controversy as to whether defendant was an innocent purchaser for value, one of the heirs of the deceased defendant, with authority from the other heirs, entered into an agreement with plaintiff for the settlement of the controversy,.and all of the heirs acquiesced therein, took the benefits thereof, and went into possession of the land which they thereby acquired, they were estopped by such agreement, whether or not the agreed judgment settling the action was valid.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 66-74; Dec. Dig. § 17.]
    3. Judgment (§ 651) — Conclusiveness—Persons Included — Consent Judgment.
    Where the heirs of a deceased defendant, in an action involving the title to land, entered into an agreement settling the controversy, and the administrator merely formally agreed to a judgment pursuant thereto, the heirs were bound by the judgment, even though the administrator had no power to enter an agreed judgment; there being no necessity for administration.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1163; Dec. Dig. § 651.]
    4. Depositions (§ 99) — Admissibility in Evidence — Admissibility in Other Suits.
    A deposition taken in a suit was not admissible in evidence in a suit other than the one in which it was taken.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 288-296; Dec. Dig. § 90.]
    5. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    The erroneous admission of evidence was not ground for reversal, where any finding of fact or conclusion of law based thereon was only incidental and entirely immaterial to the legal rights of the parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Action by W. A. Castleberry against J. B. Bussey and wife. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. M. Sanders and J. P. Anderson, both of Center, and Oliver J. Todd, of Beaumont, for appellant. D. M. Short & Son and Davis, Davis & Davis, all of Center, for appellees.

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

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

   LEVY, J.

This is an action by appellant against Mrs. F. R. Bussey and her husband, J. B. Bussey, in trespass to try title to a certain described tract of 1,500 acres of land out of the B. H. Simpson original survey located in Shelby county. The defendants answered by denial, plea of not guilty, and the statutes of limitation of three and five years, and ten years, under written memoranda specifying the boundaries. There was a judgment in favor of the defendants.

The case was submitted to the jury upon special issues. In addition to the special facts found by the jury, the court made and filed findings of fact and conclusions of law. There being no statement of facts brought up with the record, the findings of fact made by the jury and the findings made and filed by the court must be taken as the facts of the case. It is needless to copy all the findings here, and the same may be looked to if necessary. Wo conclude that the real issues involved in the controversy are few, and un- • dertake to state only the findings of the jury and of the court deemed pertinent and conclusive of the rights of the parties.

The principal contention under the many assignments is that, under the findings of the jury and the evidence, the plaintiff was entitled, as a matter of law, to a judgment for the land sued for, and the decision of this question determines the appeal. It appears that on July 9, 1841, a patent to a league and labor of land was issued in the name of B. H. Simpson. As found by the jury, B. H. Simpson conveyed his interest in the land to James J. Cravens. The date of the conveyance is not given, but the court finds that James J. Cravens entered into possession of the land about May, 1841, and that date, or thereabout, may reasonably be the date of the conveyance. James- J. Cravens died in I860, leaving a wife and one child, named William J. Cravens. The wife died within a few days after the death of the husband, and the child died in a few days after the death of the mother. James J. Cravens left a large community estate in lands, and the inheritance in respect thereto, by reason of the death of the wife and child, was Gast upon collateral kindred, consisting of two brothers and one sister of Mrs. Cravens, and one brother and one sister of James J. Cravens. J. A. and L. C. Cunningham - and Sarah A. Castleberry, mother of the appellant, were the brothers and sister of Mrs. Mary A. Cravens, and Wm. Cravens and Mary Choate were the brother and sister of James J. Cravens. The plaintiff deraigns title through the patent to B. II. Simpson and conveyance by Simpson to James J. Cravens, and in virtue of his own heirship and conveyances to him from the other heirs of the Cravenses, and plaintiff would be entitled to recover on this prima facie title in him, unless defeated by the other findings of fact. The court finds that on March 22, 1838, Matthew Brin-son had a regular survey made of 1,700 acres under the Soose Rohus certificate; the same being a valid certificate and the property of Brinson. Under and by virtue of this location, Brinson continued to reside upon the land, cultivating several hundred acres, until his death in 1SG1. It is further found by the court that, after Matthew' Brinson had located and appropriated the 1,700 acres under and by virtue of the Rohus certificate, B. H. Simpson made application for and received from the board of land commissioners of the republic of Texas a certificate for a league and labor of land. But, as found by the jury, B. H. Simpson, prior to October 16, 1841, the date not given, sold this certificate to J. A. and L. O. Cunningham. J. A. and L. C. Cunningham, after purchase of the' certificate, then located this certificate on land the field notes of which covered and included the 1,700 acres located and appropriated by Matthew Brinson, thereby creating a conflict to the extent of 1,700 acres between their location and Brinson’s under the Rohus certificate, and 'it was under this existing condition that on July 9, 1841, a patent was issued in the name of B. H. Simpson, the field notes of which cover the 1,700 acres under the Brinson location. After the issuance of the patent, and on October 16, 1841, B. H. Simpson filed suit against A. McLemore, a brother-in-law and the tenant of Brinson, for the recovery of the 1,700 acres in conflict with the Simpson survey, and Matthew Brinson intervened -and made himself a party to the suit, and asserted ownership by virtue of his location. Upon verdict of a jury, the court finds, judgment in that suit was rendered in favor of Matthew Brinson, establishing “ownership of the 1,700 acres in Matthew Brinson.” And, on appeal of the case to the Supreme Court, the judgment was affirmed. And the jury made the finding that J. A. and L. C. Cunningham, after they purchased the certificate and located the land, never made conveyance to James J. Cravens of the land in controversy. In 1841, under deed from B. H. Simpson, James J. Cravens with his wife began residing upon a part of the land in conflict, at a point about 600 yards north of the residence of Brinson, claiming that the Simpson áurvey was in conflict with. tRe Rohus survey. On May 12, 1843, MattRew Brinson filed suit in tRe district court of SRelby county against James J. Cravens for tRe title and possession of tRe 1,700 acres within tRe boundaries of tRe RoRus certificate. The-suit remained on tRe docket of tRe court un-disposed of until April 17, 1857, on wRicR date it was legally transferred to tRe district court of Panola county, wRere it remained until June 8,1872, wRen a final agreed judgment disposing of tRe controversy was entered. At tRe time tRe agreed judgment was entered A. McLemore, independent executor under tlie probated will of Matthew Brinson, was the plaintiff in the case in the place of MattRew Brinson, deceased, and D. 5. Cornaham, administrator of the estate of James J. Cravens, was the party defendant in the place of James J. Cravens, deceased. The court finds that no necessity existed for the appointment of an administrator of the estate of James J. Cravens, and by this is understood that the estate owed no debts. TRe agreed judgment in the case" was, as found both by the -court and the jury, but a formal act based upon and carrying into effect a written agreement respecting a settlement of the controversy, in fact, entered into between William Cravens, acting under and by authority of all the heirs of each, James J. Cravens, Mary, Ris wife, and William J. Cravens, the boy, and A. McLemore, independent executor of Matthew Brinson. TRe jury made the express finding that William Cravens had authority to act for all the heirs of William J. Cravens, deceased, at the' time Re made the written agreement the judgment was based on and carried into effect, and that all the heirs Rad actual notice of the agreement, and agreed to and received the benefits arising from the agreement, and recognized the rights accorded thereunder to each and all the parties interested. TRe court made the finding that the agreed judgment was, in fact, based upon and carried into effect a written agreement, of the date -of the judgment, between William Cravens and A. McLemore, independent executor under the probated will of MattRew Brinson, deceased, plaintiff in the suit. His further finding in respect to the agreement of June 6, 1872, is as follows: “TRe matters in difference between the respective parties in interest were legally adjusted and settled, by a valid agreement, through authorized representatives, by the terms of which the persons representing the Cravenses acquired in a' lawful way 800 acres of the said conflict, while Brinson retained the balance of the 1,700 acres, after deducting the 800 acres in the conflict, and, in exchange for the 800 acres which Cravens acquired, Brinson acquired from Cravens 000 acres which was not within the conflict, but a part of the Simpson survey (and which, with the 900 acres, constitutes the 1,500 acres mentioned in this suit), and Brinson’s representatives were required to float the Rohus certificate off of said location, which requirement was complied with, and the cloud created by the conflict between the Simpson and Rohus location upon the title to that portion of the conflict which James J. Cravens in his lifetime occupied as a home, and which his brother William Cravens after his death occupied as a home and claimed as his own property, was thereby removed, each party being placed in actual possession of the respective portions of said land at the time the agreement was made, and the rights of each thereunder were respected during the lifetime of the parties thereto, until the bringing of this suit on January 12, 1912, more than 20 years after all the parties to said agreement had died.” On February 22, 1879, A. McLemore, independent executor of Matthew Brinson, conveyed the 1,500 acres in suit to M. H. Cozart for a valuable consideration, and on March 12, 1881, Cozart conveyed for a valuable consideration the same land' to defendants in this suit. The defendants have been paying taxes regularly on 'the land since that purchase under the claim thus acquired, without interference or molestation from any one.

It is believed that, under these facts found by the jury and the court, the court properly entered judgment for the defendants. Claiming the land in controversy, as plaintiff is, only under the rights) which James J. Cravens asserted in his lifetime, he must depend for recovery in right of such legal rights as Cravens had and that would pass to his heirs. If force be given, as it must, to the finding of the court that, in the suit by B. H. Simpson, the patentee, against A. McLemore, Matthew Brinson intervened and set up his right of prior location and appropriation of the land, and was affirmatively decreed the ownership against Simpson of the 1,700 acres, there was then legally vested title to the land in Brinson as against Simpson. But, Simpson having conveyed the land to James J. Cravens, who was not a party to the suit, such judgment would not conclude any rights of Cravens. So the principal controversy between Cravens and Brinson in the suit filed by Brinson against Cravens was the superiority of title between them, and the rights of Cravens in the suit would depend upon the question of whether or not he was an innocent purchaser for value, in view of the facts that might or might not show at the time of the conveyance to him that he had knowledge of the pendency of the litigation and of the prior location of his certificate by Brinson, and whether or not he knew Simpson and sold his certificate before location to J. A. and L. C. Cunningham. So, considering the legal situation in regard to the controversy involved in the suit between Brinson and Cravens, the written agreement between the heirs of Cravens in settling the controversy in 1872 can be considered. The agreement, being in writing, and made by one of the heirs, with the actual notice and by the authority of all the heirs, and all the heirs acquiescing and taking the benefits and going into possession, would sufficiently afford ground for estoppel against plaintiff’s claiming the land. The court’s finding that the agreement in writing was a “valid agreement’’ and the terms sufficient to legally adjust and settle the difference between the parties is reasonably to be interpreted as showing a written agreement capable of being legally and specifically enforced between the parties. And, being capable of specific performance, the instrument itself would be sufficient, coupled with the acts of the parties in respect thereto, to base estoppel upon. The defendants offered the instrument -in evidence, as appears in the questions propounded to the jury. So, even if it could be said as an abstract question, that an administrator has not power to enter an agreed judgment, such question would not be pertinent to the rights of the parties here, for the written agreement, outside the formal judgment, is offered and can be made, as it is, the basis of estoppel. But, properly construing the facts found by the jury and the court, it does not fairly appear that the administrator himself was the one that made the agreement the judgment was based on and carried into formal effect. The heirs made the agreement, and the administrator, so far as the judgment entry goes, merely formally agreed thereto. And, in such circumstances, ’if the heirs appeared in the suit by a written agreement and consented to a judgment on such written agreement and carrying it into effect, as they did, there appears no legal reason why they should not be estopped from denying the legal effect of the agreed judgment instigated and produced by them. There appears no disability to the heirs at the time, and there were no creditors interested in the estate, as is the effect of the court’s finding. These material facts are decisive of the ease. Many of the other findings made by the jury are entirely immaterial to any issue in the case.

The first and second assignments predicate error upon matters presented by bill of exception. The bill recites that defendants offered in evidence, as direct evidence of the facts therein stated, a deposition taken in said cause, filed in 1841, of Simpson v. McLemore, in which Simpson testified that, prior to the filing of said suit, he had sold all of his interest in the land to, and that he had been induced to bring the suit by, James J. Cravens, and that Cravens had agreed to hold witness harmless of all costs. It was error to admit the deposition. Bank v. Mulkey, 94 Tex. 395, 60 S. W. 753. But the error would not afford ground to reverse the ease, as any finding of fact in respect to •such evidence would not be material in this case, and is not considered in this appeal. And, even if the trial court did make a conclusion of law having- application to such evidence, such conclusion of law was only incidental, and was not the only conclusion of law that he based his judgment upon, and was entirely immaterial to any real legal rights of the parties herein. Appellant was estopped by the written agreement of his ancestors, and that is the only and conclusive defense in the suit.

By the ruling above we have disposed of all the assignments that could be reviewed without a statement of facts.

The judgment is affirmed.