author: DAVIDSON, P. J. PRENDERGAST, J.

text:
    WALKER v. STATE.
    (No. 5099.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Criminal Law <@=j390 — Murder — Evidence.
    In prosecution for murder, testimony of witness present at shooting that after he had gone for help he became seared to go back, was inadmissible as immaterial, irrelevant, and prejudicial.
    2. Homicide <©=5203(5) — Dying Declaration —Hope oe Recovery.
    In prosecution for murder, shooting having occurred in latter part of September, and death December 24th, decedent’s dying declaration, purporting to have been made on November 6th, decedent having subsequently to declaration expressed belief he would get well, was inadmissible, there being no evidence decedent believed he was going to die immediately when he made statement.
    3. Homicide <©=5203(1) — Evidence — Dying Declaration.
    To render a dying declaration admissible in prosecution for murder, decedent must have believed when he made the statement that he was going to die by reason of the wound inflicted and that he could not recover.
    4. Homicide <©=3166(9) — Evidence—Jealousy.
    In prosecution for murder at house of woman whom defendant was protecting, testimony that before killing, at time not fixed, witness was at bouse of woman, and defendant asked him to go home, and not be lying around there, defendant acting as if he was mad and having an ax with him, evidently introduced to show jealousy was inadmissible as not connected with killing.
    5. Criminal Law <®=»448(12) — Evidence — Opinion.
    In prosecution for murder, testimony of witness that statement of another witness, impeached and sought to be corroborated, was about the same as the testimony of such impeached witness on stand, was inadmissible as conclusion of supporting witness stating his opinion of statement of impeached witness to him.
    6. Criminal Law <s=>723(1) — Trial — Argument op Prosecuting Attorney.
    In prosecution for murder, statement of district attorney in argument that soon after he was elected he prosecuted a negro in another county, in which ease the facts were similar to those in the present case, and that the jury assessed the death penalty, was erroneous.
    7. Criminal Law (@^719(3) — Trial —Argument — Testimony op District Attorney.
    Where the district attorney desires to testify, he should take the stand, be sworn, and make the statements under oath as any other witness.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Bowie County; H. E. O’Neal, Judge.
    John Walker was convicted of murder, and he appeals.
    Judgment reversed, and cause remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    E. B. Hendricks, Asst. Atty. Oen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and given 10 years in the penitentiary.

The facts show that Kate Edwards, a woman, was living in a house belonging to appellant, or on the same place that he was living. He had control of the house which she was occupying by his consent. The theory of the state was that John Walker was intimate with the woman Kate Edwards, and the killing occurred because the deceased, Will Edwards, was found in the room with Kate Edwards at her house. Appellant came upon them in this room and trouble arose, resulting in the killing of Will Edwards by appellant. The state’s theory of the case was that appellant killed him because he was in the room with the woman. It seems to be conceded that appellant came upon him in the room suddenly, not expecting him to be there, and that appellant was passing the house, possibly going to another place, and stopped for a moment. The appellant’s theory of the case was that When he found the parties in the room together the deceased undertook to kill him, basing the homicide upon self-defense.

Bill of exceptions No. 1 was reserved to the action of the court permitting state’s witness Pickens, after testifying that he was present and saw defendant shoot deceased, to testify:

“I told Will Edwards that I couldn’t do him no good, and that I would go down to the camp and get the other boys and get a doctor for him, and I went on out of the door and jumped over the fence and went on down there. Yes, I went after help, and got R. B. Atkins and E. B. Webster, and old man Alf Edwards and Joe Edwards came back up there with us. I was gone a good while — something like an hour— over an hour.”

Then he was questioned as follows by the district attorney:

“It took you something over an hour to go off and get back? A. No, sir; it didn’t take that long. After I got there I got scared to go back.”

To this statement appellant urged many objections. These were overruled, and the witness further testified, “Yes; I commenced thinking about going back;” apd then the district attorney asked him, “You didn’t go back there for some little bit on account of being afraid to go back?” Appellant again urged quite a number of objections to this testimony. The witness answered, “Yes, sir.” We are of opinion this testimony was inadmissible. We think it was immaterial, irrelevant, and prejudicial. We are of opinion this testimony was inadmissible for several reasons, so plainly so that it is unnecessary to discuss them. See Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 Am. St. Rep. 193; Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763; Campbell v. State, 30 Tex. App. 649, 18 S. W. 409; Underwood v. State, 39 Tex. Cr. R. 412, 46 S. W. 245; Bennett v. State, 39 Tex. Cr. R. 649, 48 S. W. 61; Chambers v. State, 46 Tex. Cr. R. 62, 79 S. W. 572; Pinckord v. State, 13 Tex. App. 470. This witness testified that he was an eye witness to the homicide, and heard what was said and saw what was done between the parties at the time and immediately before the shooting. The witness ought not then to have been permitted to testify the reason he did not go back to the house after going away was that he was afraid. He could testify to the facts, but not to the fact that after he left he was afraid to go back where the homicide occurred. This was evidently prejudicial. It was calculated to induce the jury to believe that Pickens thought appellant was a dangerous man, and that his (Pickens’) life was in danger if he went back.

Bill of exceptions No. 2 was reserved to the action of the court admitting the purported dying declarations of the deceased. The bill is quite lengthy in showing the predicate. It was through the witness Webster that the predicate- was laid. He was asked if before the deceased died he made a statement in his presence, and in the presence of Mr. Carlow and Mr. Lincoln, who was county attorney of Oass county, and also in the presence of Ben Edwards. This was answered in the affirmative. Witness further stated that deceased thought he was going to die, and he was asked if he wanted to make a statement, and witness answered this in the affirmative. Judge Carlow was present. He was justice of the peace. He reduced the statement to writing; that is, it was done under his direction by the county attorney, Mr. Lincoln. It was read over to and signed by deceased with his mark, and was witnessed by this witness, Judge Carlow, Mr. Lincoln, and Ben Edwards. The statement was then identified by the witness. The attorney representing defendant then took the statement to look over and cross-examine the witness with reference to the predicate. During this cross-examination he was asked if this statement was not made after the deceased went to a sanitarium in Texarkana. He answered in the affirmative. Then he was asked how long the deceased stayed in Texar-kana. He did not know definitely, but a day or two; that he understood he went to a sanitarium known as Dale’s Sanitarium; that the date on the dying declaration was a correct statement of the time it was made, and that deceased lived about two months after this statement was made; that he lived until December; in fact, it showed he died on Christmas eve, about the 24th of December. He was then asked if deceased’s condition was practically the same from the time he made the statement until he died. The answer was: “After he came home we all thought, and he did, that he would get well. That was after he came home from Bowie county, where he had gotten shot.” This was the predicate. Then follows the dying declaration. A great number of objections were urged to this: Hirst, it was not shown by the state that at the time of the making of the declaration deceased was conscious of approaching death, and that he believed there was no hope for him to recover, and because it was not shown that such declaration was voluntarily made, and because it was not shown that it was not made through the persuasion of any other person, and because it was not shown by the state that such declaration was not made in answer to interrogatories propounded to deceased, calculated to lead deceased to make any particular statement, and because it was not shown by the state that the deceased was of sane mind at the time of the making of the declaration, and because it appeared from the evidence that the statement was made too remote from the date of the vdeath of deceased, and that it appeared from the evidence that the statement was made on the 6th day of November, 1916, and that thereafter the deceased made a trip to Texarkana, which was some 35 or 40 miles from the home of deceased, and that the deceased lived and did not die until December 24, 1916. These were all overruled, and the dying declaration read to the jury. The court qualified this bill as follows:

“The above and foregoing bill of exceptions approved and ordered filed with the following qualifications: The defendant did not object to said testimony on the ground that the deceased_ was not conscious of approaching death, and' that he believed there was no hope for him to recover; and, further, there was no objection or.exception that the state had not shown by the evidence that the deceased was of sane mind at the time of making of said declaration.”

In view of the predicate, we are of opinion the dying declaration was not admissible. The shooting occurred in the latter part of September. This dying declaration purports to have been made on the 6th of November. Deceased died on the 24th of December. This was practically three months after the shooting. He died six or seven weeks after the purported dying declaration, and expressed the belief that he would get well. This is shown by the witness Webster, who proves up the dying declaration. There was no evidence that deceased believed he was going to die immediately at the time he made the statement, and after making it he expressed the belief that he would get well, and witness says they all believed he would get well. That he expected to die at some time was not evidence of the fact that he expected immediate approaching death from the shot, especially in view of the other statement in evidence to the effect that he believed he would get well. It is a certainty that he would die at some time, whether from this wound or other cause, but that fact would not justify the introduction of the dying declaration under the circumstances here detailed. He must believe at the time he makes the statement that he is going to die, and die by reason of the wound inflicted, and that he could not recover from it. Many authorities are collated in Vernon’s Ann. Crim. Proc., under art. 808. See, also, Craven v. State, 49 Tex. Cr. R. 81, 90 S. W. 311, 122 Am. St. Rep. 799; Ledbetter v. State, 23 Tex. App. 256, 5 S. W. 226; Phillips v. State, 50 Tex. Cr. R. 129, 94 S. W. 1051; Ex parte Fatheree, 34 Tex. Cr. R. 595, 31 S. W. 403. There are a great many other decisions that might be cited, but these are sufficient.

Another bill recites that some time prior to the alleged killing, at a time not fixed by the witness, who was named Samuels, he was at the house of this woman Kate Edwards, where it is claimed defendant shot deceased, and that on this occasion appellant came to the house and asked the witness to go home and not be lying around there; that he (defendant) acted as if he was mad, and th^t he had with him an ax. This testimony was objected to on various grounds. We are of opinion, as presented by the bill, this evidence should have been excluded. Whether this testimony could or could not be introduced, properly connected up, is not the question here decided, but, as presented by the bill, we are of opinion it was not introdueible. We suppose that the object of the state in the introduction of this was to show that appellant was jealous of the attentions to this woman by other men, and that that may have had a bearing upon the jury’s mind, assisting the state to show that deceased was hilled on account of the fact that he was with the woman at the time he was shot, and that jealousy was the prompting reason or motive; but, as shown by the bill, we are of opinion that the matter was not properly admitted because it was not definite enough, and was not shown to be in any way connected with this hilling or so intimately and closely as to mahe it admissible. Bill No. 4 is pretty much to the same effect, and by the witness Samuels. He testified, as shown by this bill, that while he and defendant were present at this house, in a conversation defendant told him that the woman was living on his place and that he was going to protect her. If upon another trial this matter is properly connected up, it may be admissible as bearing upon the relations between the defendant and the woman, so as to show that this jealousy may have entered into the killing, but as shown by these bills we are of opinion this has not been sufficiently done.

Another bill recites that while the witness Webster was testifying he was permitted to state that on one occasion, four or five days after the alleged shooting of the deceased, Gilbert Pickens made a statement to him in reference to the circumstances of defendant’s shooting said Will Edwards, and that this statement was similar to the testimony given by the witness Gilbert Pickens during the trial as to the circumstances of the shooting. Appellant objected to this for various and sundry reasons. To be more specific, this bill recites that, while the witness Webster was testifying, he was asked if he heard the testimony given here by the witness Gilbert Pickens. He answered this in the affirmative. He was then asked:

“On the day after this shooting, when they brought Will Edwards back to your house, did Gilbert Pickens tell you about how it occurred?”
He answered:
“I don’t believe he came home with him the next day — I don’t think Gilbert came home the next day. You see they were hauling heading over there, and R. P. brought him home, and the other negroes stayed there a day or two hauling heading, and I think they came home Friday or Saturday following. Q. Did you ask him how it happened? A. Yes, sir. Q. Was his story the same that he testified? A. Very similar to what he stated on the stand.”

This is the bill, followed by numerous objections, and the court qualifies it by stating:

“Was that the testimony was a conclusion and hearsay. Nothing was said about requiring the witness Webster to detail what Pickens told him as to the difficulty. The witness Webster was an honorable white man, and was excused from the rule. He (Webster) heard Pickens testify, and to save time Webster was asked if he told him the same as he testified on the stand. The defendant having impeached Pick-ens by showing that he made different statements than that testified by him on the stand, I permitted Webster’s testimony as bolstering testimony showing Pickens’ statement made to Webster in a day or two after the difficulty was the same as testified to by Pickens on the trial of the case.”

If Pickens^ was impeached by showing contradictory statements as intimated by the court, then there must have been a proper predicate laid, and the predicate should be followed in the impeachment. Or, if he was being sustained, the statements made to the witness must be at least substantially and as near as possible in the language of the witness in both instances — that on the witness stand and that as to his corroborating statement made after the killing. It will not do to hold that a general statement of the witness to the effect that the statement of the impeached witness sought to be corroborated was about the same as that testified on the witness stand. This would be a conclusion of the witness — stating his opinion of the statement of Pickens to him. This was a matter for the jury to determine, whether the statements were the same, and that they corroborated. The witness may have thought they were the sapie. The jury may not have so thought, but in any event the witness could not be corroborated by the testimony of Webster to the effect that in his (Webster’s) judgment the stories were practically the same. This is the way in which he was corroborated as shown by the bill and affirmed by the judge in his qualification. We do not believe the witness could be só sustained. See Richmond v. State, 58 Tex. Cr. R. 435, 126 S. W. 596, 137 Am. St. Rep. 973; Spangler v. State, 41 Tex. Cr. R. 424, 55 S. W. 326; Snodgrass v. State, 31 S. W. 366; Martin v. State, 42 Tex. Cr. R. 144, 58 S. W. 112; Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 871; Taylor v. State, 62 Tex. Cr. R. 611, 138 S. W. 615.

There were objections to the speech made by the prosecuting officer, which, we think, were well taken. The district attorney stated in his speech that soon after he was elected district attorney he prosecuted a negro in Marion county, in which the facts were very similar to the facts in this case, and that the jury in that ease assessed the death penalty against the defendant on that trial. The judge qualifies this by stating:

“While the district attorney in his speech was illustrating the law abolishing the first and second degree murder, the above statement was made. I gave the jury a special charge instructing them to not consider the said remarks of the district attorney for any purpose, and to not let it in any way influence them in arriving at their verdict. The defendant was evidently not injured by said remarks, as they did not assess the death penalty.”

The district attorney committed error. It is unnecessary to discuss this further than to say upon another trial such remarks will not be indulged. It has been decided frequently by this court that where the district attorney desires to testify lie should take the witness stand and be sworn and make the statements under oath as any other witness. It would be a conclusive statement to niake that he could not testify to facts he stated in his speech, as such testimony will not be permitted to go to the jury. For a collation of the cases bearing upon this question, see Branch’s Crim. Law, § 62.

For the reasons indicated, this judgment will be reversed and the cause remanded.

PRENDERGAST, J.

(dissenting in part).

I think the bill to the argument of the prosecuting attorney, as explained by the court, shows no error.
      <®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    MILLS v. MILLS et al.
    (No. 7958.)
    (Court of Civil Appeals of Texas. Dallas.
    June 1, 1918.
    Rehearing Denied Oct. 26, 1918.)
    1. Trial c§=»139(1) — Direction of Verdict —
    Scintilla of Evidence.
    It is the duty of the court to instruct a verdict,'though there be slight testimony, if its probative force be so weak that it only raises a suspicion of the existence of the facts sought to be established, and whether the testimony has more than such force is for the court.
    2. Wills <3=^302(2) — Probate — Contest —
    Forgery — Evidence.
    The probate of a will cannot be denied on ground of forgery, on proof that proponent had opportunity to become proficient in copying signatures of attesting witnesses or signature of maker of will.
    3. Wills <3^302(2) — Contest — Forgery —
    Evidence. \
    In contest of will, evidence held insufficient to sustain judgment that proposed will was a forgery.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Proceedings by J. H. T. Mills against Marshall Mills and others to probate the will of Ella D. Mills, deceased. Judgment for proponent in the county court was reversed in the district court on a special verdict, and proponent appeals.
    Reversed and remanded.
    Wear & Frazier, J. E. Clarke, and J. J. Averitte, all of Hillsboro, for appellant.
    Shurtleff & Cummings, of Waco, and Chas. L. Black, of Austin, for appellees.
   TALBOT, J.

This proceeding was commenced by the appellant in the county court of Hill county, Tex., and had for its object the probate of the last will and testament of Ella D. Mills, deceased. By the will all of the testatrix’s property, except $40 to be equally divided between the testatrix’s three brothers, W. L. Mills, Marshall M. Mills, and V. H. Mills, and her sister, Mrs. R. W. Frame, was devised to the appellant. The appellees, Marshall M. Mills and Mrs. R. W. Frame, joined by her husband, R. W. Frame, brother and sister of the deceased, by written pleadings, contested the probate of the will on the grounds: First, that the said Ella D. Mills did not execute the will; second, that if she did execute said will, she had not at the time of its execution sufficient mental capacity to make a will; third, that if the deceased executed said will, its execution was the result of improper and undue influence exercised over her by the appellant and his brother, V. H. Mills. Judgment in favor of the proponent, appellant here, probating the will was rendered in the county court. From this judgment the contestants, appellees here, appealed to the district court, where judgment upon a special verdict of the jury was rendered in favor of contestants, denying probate of the will, and proponent appealed to this court. There was no testimony offered in support of the pleaded issues that the deceased at the time of the execution of the will in question had not sufficient mental capacity to make a yviU> or that the same was the result of undue influence exercised over her by the appellant and his brother, V. H. Mills. The only question submitted to the jury upon trial in the district court was: “Did Ella D. Mills execute the instrument offered for probate?” This question the jury answered in the negative, and the contention of appellant in this court is, in substance, that the evidence adduced conclusively established that the will was executed by the deceased, Ella D. Mills, and that the trial court erred in not directing the jury, as requested by appellant, to answer the question submitted in the affirmative.

We have carefully considered the testimony shown by the record sent to this court, and conclude that the contention, of appellant should be sustained. The testatrix, Ella Mills, died the 30th day of April, 1915, at or near Hubbard City, Hill county, Tex., where she had lived several years, leaving surviving her one sister, Mrs. R. W. Frame, whose maiden name was Pally Mills, one of the appellees herein, and four brothers, J. H. T. Mills, the appellant, the appellee Marshall M. Mills, W. L. Mills, and V. H. Mills; the last two not appearing as parties to this controversy. The will which the appellant seeks to have probated is dated October 24, 1912, and bears the names, in the usual and proper place, of D. C. Shelton and G. C. Sharbutt as subscribing witnesses-thereto. D. C. Shelton died in 1914, some time before the death of the testatrix, Ella Mills, but G. 0. Sharbutt was living and testified in the trial of this case. The substance of his testimony is that he had been living in Hubbard City since 1911, was 28 years old, and was well acquainted with Ella Mills in her lifetime; that he was acquainted with D. C. Shelton, and that he and D. C. Shelton signed the will in question as subscribing witnesses thereto in the pres-enee of each other and in the presence of the said Ella Mills at her request; that at the time he and D. O. Shelton signed the will they were in the machine shop of J. H. T. Mills and Y. H. Mills in Hubbard City; and that the testatrix, Ella Mills, signed the will there in the shop in the presence of himself and D. O. Shelton. This 'witness further testified on cross-examination that he did not remember whether the will at the time he signed it had “any heading on it or not or if anything had been cut off the top of it”; that he did not remember what was in the will, but that he recognized his signature to it as a witness; that he signed the will as a witness in October, 1912; that the only way he remembered that it was the 24th day of October was by the date of the will, and that he remembered signing the will; that when the will was found something like a year after the death of the testatrix the appellant brought it to him and said he found it; that at this time the other subscribing witness, D. O. Shelton, was dead, and had been dead eight or nine months; that he never heard of J. H. T. Mills or Y. H. Mills saying anything about the will during the lifetime of D. O. Shelton; and that he (witness) did not say anything about a will during D. C. Shelton’s lifetime. He further said that before and up to the time the will was found he was there in Hubbard City working in a grocery store; that he understood the Mills brothers had had some controversy about Ella Mills’ property, but understood they had settled it, and that, notwithstanding he was with them frequently, he did not tell them anything about a will; that J. H. T. Mills and V. H. Mills came into the shop when the will was being signed, but did not know anything about the will or what was being signed; that at the time he signed the will as a witness he was 24 years old; that he ■went to the Mills brothers’ shop often to trade with them, and that on the occasion the will was signed he was there to get their answer about a pending trade; that he, E. 0. Shelton, and Ella Mills were the only persons present when the will was signed; that the will was all written out and just needed signing when Ella Mills asked him to sign as a witness; that she signed it first, then D. O. Shelton, and then he signed it; that Ella Mills got the will out of her purse, an ordinary ladies’ purse, but that he could not tell the color of the paper the will was written on or how long the paper was; that the Mills boys were busy at work about 20 feet away at the time the will was signed; and that he had not asked them about the trade he was endeavoring to make with them. This witness further stated that he was delivery boy for the grocery store where he worked, but that he did as much work in the store as he did delivering.

The substance of the testimony of J. H. T. Mills, the appellant, is that the testatrix, Ella Mills, was about 44 years old when she died, but looked to be about 25 years old; that seven or eight days after her death he gathered up her papers, which he found in her house, and carried them to his room and. put them in a desk for safe-keeping; that he and his sister, Mrs. B. W. Erame, and her husband, found other papers belonging to the deceased buried in a glass fruit jar “below the house by the tabernacle”; that among the papers found in the fruit jar they discovered a will made by Ella Mills in which all of her property was devised to her sister, Mrs. It. W. Frame; that this will was dated in 1907; that his sister, Mrs. Frame, turned this will over to him with other papers, and told him to settle it according to the way he understood about the papers and do what he thought was right about it; that he showed the will to his brothers “and all the heirs," and it'was agreed among them “to settle it out of court; that deeds were made, and he thought it was settled, but the other heirs refused to abide by the settlement, and brought suit in the district court of Hill county against him, which is now pending.” He further stated that the “settlement” (the nature' of which it does not appear he was asked to disclose) was discussed freely and fully by all of them before it was reduced to writing; that his brothers and sister had always had access to the first will executed by Ella Mills, except during the time it was lost or mislaid, and that this will was before the county court during the trial in that court for the probate of the will devising the bulk of Ella Mills’ property to appellant; that the will offered for probate was found by him about ten months after Ella Mills died in the desk where he had put her papers, soon after her death; that he did not look much in the papers when he took them down to his room, because he thought he knew what was in them; that about ten months after Ella Mills died he was looking through the papers in his desk and found the will offered in probate. A photographic copy of the will was handed to the witness, and he said:

“This will I am seeking to probate I found in a drawer in my desk in my room where I was staying at the time of Ella Mills’ death. I had not examined that drawer where I found it from the time she died until I found the will, about 10% months afterwards. * * * I never had any knowledge of the existence of this will until I found it there in that drawer about 10 months after her death. I know the handwriting of my sister Ella Mills. That is her handwriting to that will. My sister Ella lived with me and my brother V. H. Mills most all her life.”

The witness was then shown some checks and notes with the genuine signature of the testatrix to them, and he stated:

“That is the signature of Ella Mills on all the checks you handed me, and that is her signature on the three vendor’s lien notes you hand me.”

This witness further said:

“During the 10 months until I found the other will X 'didn’t do anything towards having this will that gave Mrs. Erame the property probated. The will got lost, and was _ found some time in September, 1916. I found it. In •about a month after her [Ella Mills’] death we had it about settled by deed; all the heirs deeded all the property over to Mrs. Erame. * * * Tes; after I found the lost will willing the property to me, I found the first will. Tes: Mrs. Erame told me when we found the first will to take the will and settle it the way I thought was right, but I didn’t take the responsibility, but consulted with her about it.

A transcript of the testimony taken in the county court, subscribed and sworn to by the witnesses, was introduced in evidence by the appellant and is made a part of the statement of facts sent to this court. The appellant testified, as shown by said transcript, in 'the trial in the county court, in effect, that the entire will in question was in the handwriting of the testatrix, Ella Mills. W. R. Elkins testified, it appears, in the trial had in the county court, but it does not appear that he itestified in the trial in the district court. In the county court he' said, among other things:

“I have some of the letters that I received from Ella Mills during her lifetime. J have one letter that bears on the question of a will purported to have been made by her. * * * I have it in my pocket. It is dated January 5, 1915. * * * The Mills brothers first called on me for this letter probably in May or June. They wanted to know if I had any letters that Ella had written that would help them out in any way in probating a will. * * * This letter is in her handwriting. I did know before I received this letter that a will had been made by Ella Mills. She showed me the will is how I knew that. She showed me that will in the latter part of the year 1912. She was in her house when she showed me the will. That [the will signed October 24, 1912] is the will that she showed me. I don’t think any one else was present. * * * The will Miss Ella Mills showed me the latter part of 1912 is the will dated October 24, 1912, signed by Ella Mills and witnessed by D. C. Shelton and G. 0. Sharbutt.”

In addition to the foregoing testimony establishing the execution of the will in question by Ella Mills, J. G. Scott testified as an expert upon the subject of handwriting that he was assistant cashier of the First State Bank of Hubbard City; that he had been in the banking business since 1909; that since he had been in that business he had made a practice of studying the genuineness of signatures; that he knew D. O. Shelton during his lifetime and knew his signature; that, upon examination of the signature “D. O. Shelton” appearing on the will as a subscribing witness thereto, he was of the opinion that it was the genuine signature of D. O. Shelton. He further said:

“I never saw Ella Mills write her signature, but I got acquainted with what purports to be her signature as her checks would pass through our batik. This will you hand me [the will of date October 24, 1912] contains the genuine handwriting of Ella Mills, in my opinion. Also the three vendor’s lien notes which you hand me contain the genuine signature of Ella Mills, in my opinion, and is the same signature on the three notes as that contained in the will, in my opinion.”

He -further said that a person’s signature is not the same all the time, that they vary from time to time, but that the general characteristics of the handwriting will remain the same; that he could more easily remember a signature than the face of a person; that there are distinguishing characteristics that follow handwriting. On cross-examination this witness, among other things, testified in substance that Ella Mills did not keep her account at the bank with which witness was associated and there were few of her checks that came through that bank; that her account was at the First National Bank, and the checks that came through wTness’ bank afforded him the only opportunity he had for learning her signature. He further said that he did not think copying a person’s signature was an easy matter; and in answer to the question, “A person having possession of these three notes with ‘Ella Mills’ written on them, and a writing desk in his room, in the course of ten months practicing writing Ella Mills’ signature, what is your opinion about the fact that they would become quite proficient in copying her signature”? he said, “In my opinion it might possibly be done, but a man would have to be an expert to do it so as not to be detected; yes; I mean a person would have to be an expert in order for it to get by me without my detecting it.” The witness was handed two checks with the genuine signature of the testatrix to them, and he said, “In my opinion, the same person signed this check you band me marked No. 4 as signed the will.” He also stated, in effect, that the same person who signed Ella Mills to check No. S signed the will. The witness said the M’s and H’s are not alike in the two signatures, but that there was a “difference allowed on account of one being written in ink and the other with pencil.”

Mrs. M. M. Mills, wife of appellee Marshall M; Mills, testified in substance, among other ' things, that about ten months after the testatrix’s death she had a conversation with the appellant in reference to his having found a will; that he was at her house and brought the subject up about the will; that he said he found a will dated January 5, 1912, but did not say just when he found it, or who would get the property under the will he found. On cross-examination she said: *

“Tes; my husband and all of us knew about tbis second will. J. H. T. Mills [appellant] bad shown it to my husband and bis brothers, and they had discussed the matter. They never did file the first will for probate, but I understood Mrs. Frame couldn’t get it. She [Mrs. Frame] didn’t say she turned it over to J. H. T. Mills, but said he wanted to read it and kept it. J. H. T. Mills told me about finding the second will down among some papers in the desk. He showed that will to my husband, but didn’t say when it was dated.”

The substance of R. W. Frame’s testimony is that his wife was a sister of the testatrix, Ella Mills; that he was present when a will was found in a fruit jar leaving the estate of Ella Mills to his wife; that appellant was also present; that he and appellant read the will over; that appellant asked him to let him see the will, and that when he did appellant folded it -up and put it in his pocket ; that he asked appellant for the will twice after that, and appellant said he could not afford to give them up, that the will and the deed covered everything in the world he and his brother Hicks (V. H. Mills) owned, and he would not give them up; that after the first will was found devising the property to his wife and all of them had read it, they all entered into a contract and made deeds passing title to these lands, and J. iH. T. Mills joined in the deeds; that after the deeds were signed suit was filed in the district court to cancel the deed; that the deeds referred to were made long before the second will was filed for probate. He further said that the way the deeds were drawn up about two-thirds of the property was made to appellant and his brother Hicks, and one-third to his, witness’ wife. He said, “Tom Mills [appellant] drew up the deeds himself and misrepresented it to me and my wife.” On recross-esamination the witness said, “They made a deed conveying the property to my wife,” and in answer 'to the question if she did not after that deed it back to them because it was their land in the beginning, he said, “Tes; she signed the deed and approved it.” The witness further said that he did not know just when this deed was made to his wife with reference to the time the “Mills boys” were sued by Carlisle of Hubbard City; that after the death of Ella Mills that suit was still pending, and that the “Mills boys” made his wife a deed to everything to avoid that suit; that Ella Mills had not reconveyed the land back to the Mills boys before she died.

M. M. Mills testified as follows:

“I remember the circumstances of J. H. T, Mills coming to me in the field and telling me he had found a will leaving the property to him. He snowed joe the will, and it was dated January 5, 1912. Mrs. Frame was not married at that time, the date of that will. This will he is now seeking to probate is not the will he brought to me in the field. The paper he brought to me in the field had a bicvcle heading up over the top. The date of this will he is probating is 24th of October, 1912. The will he brought me in the field was coarser writing than this will is.”

Mrs. R. W. or Pally Frame testified that Ella Mills was her sister; that they lived together and worked together all the time ■until witness married; that they were always friendly, and that they made their wills at the same time, and that when she died her property was to go to Ella Mills and that when Ella Mills died her property was to go to the witness; that Mr. Tomlin in Hubbard City prepared their wills, and that she had seen both of them since the death of Ella Mills; that they were found buried in a fruit jar together; that Ella Mills did not have much education and was accustomed to doing field work; that she could read and write; that she transacted her own business, wrote her own checks, and marketed her own stuff; that she had a bank account and drew it out; that she (witness) had seen her write checks; that she read newspapers some; and that she did not know whether Ella Mills wrote out her checks or just signed them.

Three vendor’s lien notes bearing the genuine signature of the testatrix, Ella Mills, and which were used in evidence for comparison with her .signature to the will, and five checks bearing the genuine signature of D. C. Shelton, one of the subscribing witnesses to the will involved in this controversy, and which were used in evidence for the purpose of comparison with the signature of the said Shelton appearing on said will, together with the photographic copy of the will introduced in evidence, have been sent up by agreement of counsel for the consideration of this court.

The foregoing contains practically a full statement of all the testimony in the case material to the question under consideration, and is, in our judgment, of such a character as to leave no room for ordinary minds to differ as to the conclusion to be drawn from it. The scintilla doctrine has been exploded, and the rule established “that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established; such testimony in legal .contemplation falling short of being any evidence.” And whether the testimony has more than the degree of probative force mentioned is a question for the de-. termination of the court. The leading case in Texas declaring the rule to be as stated, and from which the language just quoted is taken, is Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, but since the decision in that case many others to the same effect have been handed down by the appellate courts of this state. The application of the rule is apparent. The question is whether or not there is any evidence from which the jury trying the case might reasonably infer and conclude, as they did, that the testatrix did not execute the will; and our conclusion is, as hereinbefore indicated, that this question should receive a negative answer. The facts and circumstances in evidence necessarily relied on by the appellees to sustain the judgment of the court below raises, in our opinion, no more than a “mere surmise or suspicion” that the will in question was not executed by the testatrix, but a forgery. They merely suggest or give rise to the thought, without possessing any probative force to establish the fact sought to be established, that appellant forged the will. There is nothing in the record that tends to show that the subscribing witness Sharbutt had any motive to swear falsely, and his testimony, unshaken or weakened by the cross-examination to which he was subjected, is that the testatrix, Ella Mills, did, in his presence and the presence of the other subscribing witness, D. 0. Shelton, sign the will, and that he and Shelton signed the will as witnesses at her request. Shelton was dead, and of course his testimony could not be had, but the genuineness of his signature was not attacked by any testimony ottered by the appellees, and the undisputed testimony of J. <5. Scott, who stated that he knew the handwriting of Mr. Shelton, and who was clearly shown to be well qualified to speak as an expert, testified without equivocation that in his opinion the signature “D. O. Shelton” to the will was Mr. Shelton’s genuine signature. This witness also gave it as his unqualified opinion, based upon his knowledge of the testatrix’s handwriting, and the comparison made with her genuine signature to the notes furnished him, that the name “Ella Mills” signed to the will as maker thereof was the genuine signature of the said Ella Mills.

Again, aside from the testimony of the appellant, who had been acquainted with the handwriting of the testatrix ever since she was able to write, to the effect that the will was wholly in her handwriting and bore her genuine signature, the testimony of W. R. Elkins, who appears to be a disinterested witness, is that the testatrix, Ella Mills, showed him the identical will involved in this controversy in the latter part of the year 1912. Against this volume of positive testimony showing the execution of the will the appellees, as shown by argument of counsel in their briefs, array certain claimed facts and inferences drawn by them, as being sufficient to call in question the genuineness of the signature of Ella Mills to the will, and to require the submission of its execution by her as an issue of fact for the determination of the jury. These facts and inferences are, in substance, the taking of the first will, •in which the bulk of the testatrix’s property was bequeathed to Mrs. Frame, by the appellant and his refusal to surrender it to R. W. Frame or file the same for probate; that the will which appellant showed R. W. Frame and which he claimed devised to him the property left by the deceased was dated January 5, 1912, had a bicycle heading on it, and the writing coarser than the writing of the will presented for probate; that before the time appellant claims to have found the second will he sought to secure possession of the major portion of the estate left by the deceased, Ella Mills, by false representations ; that during the months which elapsed between the death of Ella Mills and the supposed finding of the will sought to be probated, there was in the possession of the appellant a deed upon which appeared the signature of U. O. Shelton, and the proof showed that appellant was a man of some education, and it is a matter perhaps of common knowledge that a person in that length of time could become proficient in copying the signature of another; that the testimony of the witness Sharbutt presents a very unusual situation,- in that he was a delivery boy in the town of Hubbard City, knows that he has witnessed a will, and knows there is a controversy after the death of Ella Mills, whose will he claims to have witnessed, about who is to receive the property,’ and yet he never makes known to appellant, his friend, that he had witnessed such a will, although he knew the other witness to the will was dead, and never tells any one that there is such an instrument in existence; that the first will, devising the bulk of Ella Mills’ property to her sister, Mrs. Frame, was at the date of her death still buried in the fruit jar; the improbability of Ella Mills taking the first will from the fruit jar, copying it in drawing the second will, and then again burying it in the fruit jar. These matters, admitting for the sake of argument that they all appear from the evidence, may be sufficient to raise a surmise or create a suspicion that Ella Mills did not execute the'will in question, but their probative force is, in our opinion, too weak to justify a finding that the will was a forgery, and not in fact executed by Ella Mills. There seems to have been no effort made to show by the testimony of any witness acquainted with the handwriting of the testatrix, Ella Mills, that the signature to the will was not in the handwriting of Ella Mills. Nor does it appear that appellees endeavored by expert testimony to show that the signature to the will was not the genuine signature of the testatrix. It is undisputed that she kept an account with the First National Bank of Hubbard City, and yet no officer of that bank, so far as the record discloses, was called upon to give his opinion as an expert as to whether or not the signature to the will was the genuine signature of Ella Mills. All of the appellees in the case testified in the trial. They must have been familiar with their sister’s handwriting, and yet it does not appear that "either of them .gave it as his or her opinion that the signature was not in the handwriting of the testatrix. It is but reasonable to assume that, if they were of the opinion that the handwriting was not that of Ella Mills, they would have so testified.

Touching the claim that appellant during the time intervening between the finding of the first will and the discovery of the second endeavored to secure a deed to and possession of the major part of the estate left by Ella Mills by false representations, thereby indicating an intention to secure the property at all hazards, is confusing and insufficient, it occurs to us, to establish such claim. The witness K. W. Frame, upon whose testimony the claim mainly rests, did not state what were the false representations charged by him to have been made by appellant. He merely stated that appellant “drew the deed himself and misrepresented it to me and my wife.” Neither the jury nor the judge presiding could say from such a statement that the representations, if any, were of such character as evinced a purpose on the part of appellant to secure the property wrongfully and. without legal right. On the contrary, the testimony of the witness Frame indicates that the land involved belonged to appellant and his brothers, and had been deeded to Ella Mills in her lifetime and to this witness’ wife to prevent it from being subjected to the payment of a claim sued on in the district court of Hill county by one Carlisle, which suit was still pending when Ella Mills died, and apparently the title then in her by reason of the simulated transaction above mentioned. As shown in our statement of R. W. Frame’s testimony, he testified that a deed was made conveying the property to his wife, and that she deeded it back to appellant and his brothers “because it was their land in the beginning.” Therefore the asserted claim that the appellant by false representations endeavored to secure possession of the major part of the estate left by Ella Mills is without force as a circumstance in determining the issue under consideration. Again, there is no testimony in the record from which it may be inferred that the testatrix, or any one else, removed from the fruit jar the will devising the property to her sister Mrs. Frame and copied it verbatim, except with the name of J. H. T. Mills inserted in the place of her sister’s name, and then again buried the original will in the fruit jar, as argued by counsel for appellees. A copy of the will offered for probate appears in the record, but a copy of the will found in the fruit jar does not, and no witness, so far as the record discloses, testified that he compared the wills and that the second , was a copy of the first except in the particular mentioned. So it does not appear that the second will was an exact copy of the first, except that the name of appellant, J. H. T. Mills, was inserted in the second will in the place of his sister’s name. Likewise the argument that the proof showed that the appellant, during. the ten months which elapsed between the death of Ella Mills and the supposed finding of the will offered for probate, had possession of a deed upon which appeared the signature of D. 0. Shelton, and that appellant was a man of some education, and that “it is a matter perhaps of common knowledge that a person in that length of time could become proficient in copying the signature of another,” is without probative force in determining said issue. We do not regard it as a matter of common knowledge that a person with or without education could, in any given length of time, become proficient in copying the signature of another. The expert witness Scott. said, ini effect, that it might be possible, but that the copying would have to he done by an'expert to escape detection by him. Besides, the probate of a will cannot be denied on, the ground that it is a forgery on proof of facts which, at most, do no more than show that the proponent had the means and opportunity of becoming proficient in copying the signatures of the subscribing witnesses thereto, or the signature of the maker of the will.

There is no direct testimony tending to show that ®lla Mills did not execute the will, and we are of the opinion that it cannot reasonably be inferred from any or all the circumstances in evidence that she did not. The jury’s finding therefore is not supported by the evidence, and the judgment based upon it must be set aside. As correctly said in Weber v. Strobel, 236 Mo. 649, 139 S. W. 188:

“The law is settled that, unless there is substantial evidence to sustain a verdict finding against the validity of a will, the verdict will not be permitted to stand.”

The trial court should have instructed a verdict in favor of appellant, and upon such verdict should have entered judgment probating the will. Having failed to do so, and the case having been fully developed, it becomes the duty of this court to render such judgment.

It is therefore ordered that the judgment of the district court be reversed, and judgment here rendered in favor of appellant admitting the will presented by him to probate.
      <§=E>For other cases see same topic and KEY* NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J. JENKINS, J.

text:
    WILLIAMS v. KING.
    (No. 5807.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 24, 1917.
    On Motion for Rehearing, June 5, 1918. Further Rehearing Denied Oct. 23, 1918.)
    1. Justices of the Peace @==>44(2) — Jurisdiction — Amount.
    In suit to recover 8161.89 rent and to foreclose landlord’s statutory lien on Crop, that the property levied upon exceeded $200 in value would not deprive justice court of jurisdiction.
    On Motion for Rehearing.
    2. Chattel Mortgages @=>17 — Interest of Mortgagor.
    One cannot mortgage that which he does not own, so as to create a lien thereon prior to his becoming such owner.
    3. Landlord and Tenant @=>326(2) — Right to Growing Crop.
    A landlord is not the owner of any part of a growing crop being raised by his tenant before it is divided, or, if there is an agreement to divide, before it is matured and ready to be divided.
    4. Landlord and Tenant @=>323 — Cropper’s Contract — “Joint Owners.”
    Where the one raising the crop is “a cropper on the shares,” the relation of landlord and tenant does not in fact exist; the relation being that of “joint owners” of the crop.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Joint Owners.]
    5. Chattel Mortgages @=>33 — On Property Not in Esse.
    A mortgage upon property not in esse attaches in equity as a lien or charge upon the particular property as soon as the mortgagor acquires title thereto.
    6. Chattel Mortgages @=»12 — Unplanted Crop — Validity.
    A tenant may mortgage an unplanted crop, and the same will be effective as soon as he plants the crop.
    7. Landlord and Tenant @=>246(2) — Landlord’s Lien.
    Landlord has a lien on tenant’s crop.
    8. Crops @=>5 — Sale op Land.
    A sale of land carries with it the crop growing thereon, in the absence of an agreement to the contrary.
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Suit in justice court by George Williams against M. M. King. Judgment for defendant, both in justice court and on appeal to county court, and plaintiff appeals.
    Reversed and rendered.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.
    J. K. Baker, of Coleman, for appellee.
   RICE, J.

This suit was brought by appellant against appellee in the justice’s court, precinct No. 1, for the sum of $151.89, claimed as rents for the year 1915 on a certain farm in Coleman county, and for foreclosure •of landlord’s lien on cotton raised thereon, which had been attached by the officer under process issued from such court. On a plea of privilege the case was transferred to justice’s court, precinct No. 6, where it was tried and re«ulted in judgment in behalf of appellee. On appeal to the county court the case was tried before the coutt without a jury, who rendered judgment also in favor of appellee, from which appellant has prosecuted this appeal. The court filed his conclusions of fact and law, which are substantially as follows, to wit:

Conclusions of Fact.
On January 1, 1915, C. C. Puckett and bis minor children were the owners of the farm above referred to, subject to a vendor’s lien held by appellant. On said date Puckett rented said premises to appellee, King, for the year 1915, who agreed to cultivate said land and pay as rent therefor one-third of the grain and feed and one-fourth of the cotton raised by him during the current year. Thereafter, at the April term (1915) of the district court of Coleman county, appellant recovered a judgment against Puckett and his children, foreclosing his vendor’s lien on the land, which lien antedated the rental contract above mentioned. King was not a party, however, to this suit. Thereafter an order of sale based on such judgment was issued and levied upon said land, and the land purchased thereunder at sheriff’s sale on June 1, 1915, by appellant, and conveyance thereof duly made to him by such officer, which deed was duly filed for record in the deed records of said county.
About the 15th of June, appellant, through J. W. Gates, notified appellee that he would expect him to pay the rents on the premises, and on August 15th demanded that King should recognize him as landlord and pay him all rents to accrue for said year. King at this time informed Gates that he rented the land from Puckett, who had mortgaged the rents to Pad-dleford & Son and the First National Bank of Coleman, and stated that Puckett had instructed him to pay the rents to said mortgagees. At the time of the purchase of said land by appellant, and when he gave notice and demanded to be recognized as landlord, none of the cotton crop had matured, and no rents were due. It appears that King gathered during said year six bales of cotton therefrom, three of which have been levied on as above stated.
On February 25, 1915, Puckett executed two chattel mortgages on the rent cotton to be grown on said premises by King during said year, the first in favor of Paddleford & Son, to secure the payment of a note for $39.50, of even date, due October 1, 1915, and the second in favor of the First National Bank of Coleman, to secure the payment of a note of even date, for the sum of $25, due October 1, 1915, as well as any other liability or liabilities of Puckett. Each of said chattel mortgages was duly filed and registered in the county clerk’s office of Coleman county, Tex., on February 25, 1915.
King never paid any of the rents for the year 1915 on said land to apellant, but paid one-fourth of all the cotton raised thereon during said year, under the instructions of Puckett, to Paddleford and the First National Bank, on an indebtedness secured by their mortgages, which payments were made after September 1, 1915; but the value of said rent cotton was not more than sufficient to pay the indebtedness secured by said mortgages to Paddleford and the First National Bank.
Conclusions of Law.
From the above statement of facts I make the following conclusions of law:
I find that the relation of landlord and tenant existed between O. C. Puckett and M. M. King; that under the decision of Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, the cotton raised on said land was not. a part of the soil, but was personal property, liable to voluntary transfer, or incumbrance as chattels; that the landlord, Puckett, before the divestiture of his title by the foreclosure of the vendor’s lien held by plaintiff, Williams, was entitled to one-fourth of the cotton raised on said premises, as rents; that, by his action in executing the chattel mortgages to D. A. Paddleford -and to the First National Bank on his rents, the said rents were constructively severed from the realty, even though the crop had not matured, and the severed rents were not a part of the realty at the time of the foreclosure proceedings, and did not pass, with the purchase of the land, to the plaintiff, Williams; that, the value of said rents not having exceeded the amounts due on the indebtedness secured by said chattel mortgages, the rents were liable for the payment of the indebtedness secured by said chattel mortgages, and the defendant, having delivered the rents to the mortgagees, is not liable in this action.

This ruling and judgment of the court is assailed by appellant in several assignments of error, all of which are overruled by us, for the reason that we conclude that the court correctly determined the law as above outlined. See Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Security Mortgage & Trust Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835; Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591; Kreisle v. Wilson, 148 S. W. 1132.

Appellee moved to dismiss this suit for want of jurisdiction, on the ground that the property levied upon exceeded $200 in value. If this had been a suit to foreclose a mortgage lien, appellee’s contention would have been correct; but, being a suit to foreclose a statutory lien, the rule is different, for which reason we overrule the motion. See Manire v. Wilkinson et al., 136 S. W. 1152, and authorities there collated and discussed.

Believing that the judgment of the court is in all things correct, it is affirmed.

On Motion for Rehearing.

JENKINS, J.

The effect of our former decision herein is to hold that a mortgage by a landlord on a rent crop not planted severs such crop from the realty when it comes into existence, though not matured, and the rent is not yet due. In this, we think, we were in error. One cannot mortgage that which he does not own, so as to create a lien thereon prior to his becoming such owner. A landlord is not the owner of any part of a growing crop toeing raised by his tenant before it is divided, or, if there is an agreement to divide, before it is matured and ready to be divided. Railway Co. v. Doke, 152 S. W. 1174; Curlee v. Rogan, 136 S. W. 1127; 6 Cyc. 1048; 11 C. J. 431.

An apparent exception to this rule is where the party raising the crop is “a cropper on the shares.” But the exception is only apparent, for in such case the relation of landlord and tenant does not in fact exist, but the so-called landlord and tenant are joint owners of the crop, the owner of the land furnishing the land, and perhaps other things, and the so-called tenant furnishing the labor for the enterprise, in which each by the force of their agreement owns the interest agreed upon from the time the crop is planted. Curlee v. Rogan, supra; Miles v. Dorn, 40 Tex. Civ. App. 298, 90 S. W. 707; Rentfrow v. Lancester, 10 Tex. Civ. App. 321, 31 S. W. 229. In the instant case there is no question as to “cropper on the shares.” The court before whom the case was tried found that King was the tenant of Puckett, and the evidence sustains this finding.

There is a seeming exception to the rule that one cannot create a lien on property which is not in esse, or which he does not own, and that is;

If one executes a mortgage upon such property “it attaches in equity as a lien or charge upon the particular property, as soon as the assign- or or contractor [mortgagor] acquires a title thereto, against the latter and all persons asserting a claim thereto under him.” Richardson v. Washington, 88 Tex. 339, 31 S. W. 614.

Observe the language, “As soon as he acquires title thereto,” but not sooner. In the instant case Puckett never- acquired title to any part of the cotton raised by King, his tenant, for the reason that the land was sold June 1, 1915, at sheriff’s sale, before the cotton matured. ,

A tenant may mortgage an unplanted crop, and the same will be effective as soon as he plants the crop, for the reason that he then becomes the owner thereof. A landlord has a lien on such crop for rents and advances, but until the crop is matured and partitioned he has no ownership therein.

The sale of land carries with it the crops growing thereon, in the absence of an agreement to the contrary. Porter v. Sweeney, 61 Tex. 213; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572; Shultz v. Spreain, 1 White & W. Civ. Cas. Ct. App. § 916. The sale being a forced sale, Puckett had no power to reserve the growing crop, and did not attempt to do so. Appellee cites the cases of Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, and Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591. These cases are not in point, for the reason that in those cases the relation of landlord and tenant did not exist. In Willis v. Moore, 59 Tex. 633, the court said:

“There might be some difficulty in determining the true relation which existed between Lewis Moore and J. A. Gill, under the agreement of date December 24, 1877; but it is treated by appellant’s counsel as a partnership, in which, for their mutual benefit, the land was cultivated by the latter, the material for that purpose being in part furnished by each, the net proceeds to be equally divided between them. This is probably the true relationship of the parties, rather than that they were landlord and tenant, and we will so consider them in disposing of the case.”

In the cash of- Silberberg v. Trilling the only question decided was that one could mortgage a crop upon his homestead, and that such mortgage will sever the crop from the realty, and thereby render it suoject to mortgage. Here it was the owner of both the crop and tRe land wRo executed a mortgage. But a mortgage of a growing crop by one wRo Ras no ownership therein will not sever it from the realty.

For the reason stated, the motion for a rehearing is granted, our former judgment herein is set aside, the judgment of the court below is reversed, and judgment is here iraidered for appellant.

Reversed and rendered.
      @=>Por other cases see same topic and KEY-NTJMBBR in all Key-Numbered Digests and Indexes


author: •HARPER, C. J.

text:
    FORD MOTOR CO. v. CRANFORD AUTO CO.
    (No. 869.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1918.)
    1. Factors i®=»44 — .Compensation.
    Sales agent, appointed factor by its principal for a limited time, and simply empowered to sell such automobiles as might be consigned to it by its principal during life of the contract, earned no commission on sale of machines ordered from its principal only two days before the contract expired, so that they could not arrive in time to sell before expiration of the contract.
    2. Damages <@=^80(1) — Penalty.
    $250 as liquidated damages for breach of automobile selling agent’s contract by the sale of one Ford ear out of his territory is so out of the proportion to any possible actual damages which could be suffered from such a breach as to stamp it at once as a penalty, not to be enforced by the courts.
    Appeal from District Court, Pecos County; James Cornell, Judge.
    Action by the Cranford Auto Company against the Ford Motor Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Earl M. Seel, of Austin, Williams & Jackson, of Ft. Stockton, and J. D. Martin, of San Antonio, for appellant.
    W. A. Hadden, of Ft. Stockton, for appellee.
   Opinion.

•HARPER, C. J.

Appellee sued the Ford Motor Company, appellant, to recover damages in the way of commissions for the nondelivery of 12 model “T” Ford touring automobiles and 4 model “T” touring roadsters in the sum of $857. Defendant urges the defense that by a written contract plaintiff became its sublimited agents for the sale of Ford cars, at a stipulated commission, within a- designated territory, for a definite time, to wit, ending July 81, 1916; that the orders for cars relied upon by plaintiff were sent in on the 29th of July, which was too late to be filled prior to the termination of the contract of agency, therefore it was not bound to fill the order; and by way of cross-action alleged a breach of the contract by plaintiff, in that they sold two cars to persons living outside of their designated district, for which the contract provided that they should forfeit $250 each as liquidated damages. To the latter appellees answer that no breach occurred, but, if it did, then it has been settled. Tried before the court without jury, and judgment entered for plaintiff for $428.50, and that defendant recover nothing upon its cross-action. From which judgment this appeal.

The first error assigned is that the order for cars sent on July 29, 1916, was too late for delivery of the cars during the life of the contract, which ended July 31, 1916, and because the defendant had, by certain provisions of the contract, the right to cancel any order without incurring damages.

Findings of Fact.

The Ford Motor Company, by written agreement, appointed the Tri-State Motor Company of El Paso, Tex., its agent for the sale of its automobiles and accessories for a certain designated territory, with power to arrange for sales of said articles through sublimited agents.

On August 6, 1915, another written agreement was executed which recites:

“This agreement * * * between the Ford Motor Company, * * * party of the first part, and the Tri-State Motor Company of El Paso, * * * party of the second part, * * * and Cranford Auto Company of Fort Stockton, Texas, * * * third party, witness-eth: * * * That whereas, the second party is the limited agent of first party within the territory described for the sale of automobiles; * * * and whereas, the third party has applied to be agent in certain of the territory, and first and second parties are willing to appoint said third party with certain limited authority and upon the following terms and conditions only: Now, therefore, this witnesseth:
“1. That second party designates and the first party confirms the third party as sublimited agent * * * for the pulpóse of negotiating sales of first party’s product to users only, in the method and upon the terms and within the territory herein specified. * * *
“That first party will consign its Ford automobiles to third party through second party to be sold to users only, and not for resale upon bills of sale to be executed by first party only. [Then it describes “purchaser” within the designated territory, and then provides that $250 shall be liquidated damages for a breach of the latter provision of the contract. It provides for payment of commissions for making sales after payment by the purchaser.]”
Section 16 provides that “the dealings of the third party with a proposed purchaser shall not constitute a sale nor shall first party be bound to accept such order, but may wholly reject same for any reason,” etc.
Section 46 is that the contract shall continue in force until July 31,1916, but it is agreed that either the first or the third party may cancel or annul without cause.
Section 47 provides that “upon expiration of the contract the first party may take possession of any automobiles as third party may have on hand unsold.”

The order for the cars for the sale of which commissions are sought to be recovered by this suit was sent by wire on July 29th, just two days prior to the termination of the contract.

From the portions of the contract copied above it is apparent that appellees were appointed factors by the Ford Company for a limited time. As such, under the law and also by the contract, they were simply empowered to make sales of such automobiles as might he consigned to them by their principal during the life of the contract. The title to all machines remained in the Ford Company until it, by bill of sale, transferred it to an actual purchaser for personal use, and not for resale. Ruling Case Raw, vol. 11, § 8, p. 757. It is further apparent that since it was impossible for appellees to receive and make sales of the machines ordered on July 29th before their authority to sell would expire, and since there is no evidence of a sale prior to the termination of the contract, it became useless to make the shipment to them, because they would have been without authority to sell had they received them. It follows that since they would have been without authority to sell they could not have earned any commissions.

Appellees urge that since appellant accepted the orders sent and agreed to ship during the life of the contract a subsequent failure to ship created a liability. This principle of law applies to strictly sales contracts, but has no application here; for it is expressly provided that any sale made to a proposed purchaser may be canceled, and, further, that first party may take possession of any automobiles that third party may have on hand unsold at the expiration of the contract. So appellant’s act in canceling the shipment is but an exercise of its right to retake the automobiles under this provision of the contract. It must, therefore, he held that, under the pleadings and evidence, there could he no cause of action.

The appellant, by assignments, urges that the trial court should have rendered judgment in its favor for $250 in each of two cases as liquidated damages for sales of automobiles outside of the designated territory. The trial court held' that the violation of the contract in this regard was “without any bad faith, without any intention of violating the contract, and without knowing that the parties to whom they sold were nonresidents of their territory, and that, no injury having been suffered, the defendants were not entitled to recover.” And we find the facts in evidence justify this finding. It seems apparent that $250 as liquidated damages for the breach of a contract by the sale of one Ford car is so out of proportion to any possible actual damage which could be suffered by reason of a breach as to stamp it at once as a penalty not to be enforced by the courts, and, since we are of the opinion that there were in fact no actual damages as held by the trial court, it was not error to refuse a recovery upon appellant’s cross-action. Collier v. Betterton, 87 Tex. 440, 29 S. W. 467.

For the reason that it clearly appears that appellee has no cause of action, the case is reversed and here rendered.
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    KOUNTZ et al. v. CARPENTER.
    (No. 903.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1918.)
    1. Waters and Water Courses <&wkey;152(8)— Prior Appropriation and Use — Evidence.
    Evidence held to show prior appropriation and use by defendants and their vendors of one head of water for irrigation for a period of more than 10 years.
    2. Waters and Water Courses <®=»137 — Appropriation op Water — Duration.
    The right to the use of water for irrigation runs with and is appurtenant to the land, and hence, like land, is subject to the 10-year statute of limitations.
    3. Waters and Water Courses <&wkey;151 — Prescription — Use of Excess Water — Effect.
    Where, after defendants’ use of water for irrigation purposes for 14 years, plaintiff began using the excess water running through defendants’ ditches, such use did not destroy defendants’ already acquired prescriptive title to all of such water, or prevent the continued running of the statute of limitations.
    Appeal from District Court, Reeves County; Chas. Gibbs, Judge.
    Petition by A. J. Carpenter against C. C. Kountz and others. From an order granting a writ of temporary injunction the defendants appeal, and from an order prorating the use of one head of water for irrigation both the defendants and plaintiffs appeal.
    Reversed and temporary writ of injunction refused.
    This case presents an appeal from an order granting a temporary writ of injunction on the petition of appellee, A. J. Carpenter, against appellants, C. O. Kountz, Maryhilda Galindo, and 'R. E. Lyles, and prorating between appellants and appellee the title and use of one head of water for purposes of irrigation in Toyah creek. On the hearing the trial court made and filed findings of fact, and as the appellants do not question the correctness of such findings, but do question and assign error to the court’s conclusion therefrom as a matter of law, we will, so far as we deem it necessary in stating the controlling issue in the case as we view it, make an abbreviated statement of the court’s findings as presenting the issues in the pleadings and as the court found the facts to be.
    Appellee, Carpenter, is the owner of the lands claimed by him in his petition, and appellants own the land in severalty claimed by them. Toyah creek is a flowing stream, with well-defined banks and bed, and the principal source of supply of water is what is known as the Head spring, the flow of which is constant and uniform from year to year. Each tract of land involved in the controversy abuts upon Toyah creek and is within its watershed, and each tract of land was acquired by its present owner from the state by mesne conveyances in a single transaction. The lands are in the arid portion of the state, where irrigation is necessary for the production of crops. All of the lands in question are now in cultivation by irrigation, each tract depending upon Toyah creek for water for such irrigation, appellee Carpenter cultivating by irrigation 100 acres, Ivountz cultivating by irrigation 68 acres, Galindo cultivating by irrigation 17 acres, and Lyles cultivating by irrigation 60 acres. During the year. 1870 G. B. Lyles, father of R. E. Lyles, was the owner of the several tracts now owned by appellants. During said year G. B. Lyles constructed a dam across Toyah creek where his lands abutted said creek, and by means of said dam and canals constructed by G. B. Lyles diverted a portion of the waters of said creek (the one head of water involved in this suit), and conveyed same to a portion of his said lands for the purpose of irrigation, the lands being the lands now owned and cultivated by appellants ; that continuously, since 1870, during the crop season of each year, G. B. Lyles and his vendees (appellants) have applied the waters of said creek so diverted to portions of their said lands for irrigation by means of said dam and canals; that while appellee Carpenter’s land abuts on said Toyah creek, it is impracticable for him to take water out of said creek at any point on his land and apply same to his land, and that the only practical method of applying said waters to his land for irrigation is by means of a dam situated at some point in said creek above his land, and conveying same through canals over other lands; that appellants’ lands are situated on the creek above appel-lee’s land, and about 1884 Niyeto, then owner of appellee’s land, constructed a canal across the appellants’ lands then owned hy G. B. Lyles, and connected same with the said canal theretofore constructed by Lyles and by means of Lyles’ dam and canal, as thus extended applied a portion of the waters of said creek to his (appellee’s) land; that during the time G. B. Lyles and Niyeto severally owned said lands there 'was more water flowing in Toyah creek than was necessary to irrigate the lands involved in this suit, said lands constituting about all the lands then in cultivation, the acreage in cultivation being small and the crops grown requiring less water; that in the early 90’s the waters in the Head spring were divided into halves, one part so diverted leading off in the direction of appellants’ lands, and a lateral canal therefrom was constructed to appellants’ lands; since that time the Reeves county irrigation district No. 1 has been organized and has succeeded to the rights and properties of all other Head creek water systems, and now controls the entire flow of said Head spring, subject to the rights of riparian landowners and prior appropriators of said waters not situated within the boundaries of said district. None of the lands involved in this suit are within the boundaries or jurisdiction of said district. After the other irrigation systems above referred to were established, appellee continued to irrigate his land from the Lyles lateral canal when water was ' available through said lateral canal, and when not available appel-lee’s land was irrigated through one of the other systems now owned by said district. Appellee nor his vendor had any difficulty in obtaining an adequate supply of water thorough said two canals until after said district NO'. 1 was organized, no controversy as to water arising prior thereto. In recent years the acreage under irrigation from said Head spring had greatly increased, and crops are now grown that require more water than formerly. Since the organization of said district No. 1 said district has permitted one head of water (2% second feet) to flow down said Toyah creek to the lands of the parties to this suit, and has diverted and appropriated all the remainder of the flow of the Head spring, and refuses to deliver wate.r to appel-lee’s lands except for a charge which appel-lee does not see fit to pay, he not being in said district and claiming water as a riparian owner. Appellants now divert all of the water (the one head) which said district permits to flow down Toyah creek and appropriate same to their own use, and because of said exclusive use, as said by the trial court, plaintiff has “severed all diplomatic relations with defendants.” Appellants and their vendors have at all times claimed the right to use all of the waters of Toyah creek deemed by them necessary to the proper irrigation of their lands, and for the past Id years or more have diverted and used, by means of the Lyles dam and canal, as much as one head of water, and such use has been peaceable, open, notorious, uninterrupted, and undisputed for as much as 10 years or more. Appellee and his vendors for more than 10 years have applied the waters from Toyah creek and said Head spring to his lands for irrigation, partly by means of the Murphy canal system, now known as Reeves county irrigation district No. 1 system, and partly by means of said Lyles canal. Such use of said water by appellee likewise has been peaceable, open, notorious, uninterrupted, and continuous until about two years prior to the filing of this suit. Appellants have never heretofore and do not now dispute the appellee’s right to receive the waters from said creek through the Lyles canal as extended on to appellee’s land so long as there is more water flowing therein than appellants desire to use. The one head of water, the amount constantly flowing in said Lyles canal from Toyah creek, is more water than is reasonably necessary for the proper irrigation of appellants’ crops, the said amount of water so flowing into the Lyles canal being amply sufficient, when properly and reasonably applied and used, to properly irrigate all of the lands now in cultivation of both appellee and appellants. The Lyles dam and canals are situated upon lands owned by appellants and formerly were owned by appellants’ vendors. For more than 10 years before the filing of this suit appellants have made a practice of applying the said waters, when same were needed, to their crops first when their crops were irrigated, then permitting the water to flow on down through the Lyles canal and the canal constructed by appellee connecting therewith to appellee’s land. Appellants’ lands are more porous and require more water than appellee’s land. One irrigation per month is sufficient to produce good crops upon all the lands in question. By reasonable use of the one head of water flowing in the Lyles canal appellee’s crops on his said lands can be properly irrigated in 10 days and the crops of appellants in 20 days.
    The trial court concluded, and so ordered, that appellee should have the exclusive use of ■the entire flow of water in and through the Lyles canal for 10 consecutive days of 24 hours each, and that appellants should have the exclusive use of the entire flow of the water for 20 consecutive days of 24 hours each. All parties excepted and gave notice of appeal.
    J. W. Parker, of Pecos, for appellants.
    "W. A. Hudson, of Pecos, for appellee.
   WALTHALL, J.

(after stating the facts as above). We have possibly stated the facts more fully than is necessary to a brief state* ment of our conclusion as to the law arising therefrom. Appellants and appellee have each filed briefs, and we will confine our opinion to a discussion of the issues therein suggested.

Appellants present one assignment of error, viz.: The court erred in concluding as a matter of law that the water flowing down the Lyles ditch, and used by the defendants for the length of time and under the conditions found by the court, can be prorated by the court between appellee and appellants, and makes the proposition that the facts found indisputably show that appellants were the owners of the water in controversy by limitation and prescription. The counter proposition of appellee is that the mere use of the water of á stream in a particular manner will not ripen into a prescriptive right; that in this particular case, the rights of the riparian owners being equal, each has a right to make all the use of the water he can without infringing on the rights of others; and, therefore, in order to destroy the latter’s rights, the use made by the claimant must be such as to deny their existence. We take it that the only question thus presented is, Do the facts found by the court show that appellants have, by limitation of 10 years, acquired title as against appellee to the full one head of water flowing in the Lyles canal? If they do not, appellee would be entitled to have the one head of water prorated, and an equitable distribution made between himself and appellants of the one head of water flowing in the Lyles canal. We do not mean to say that the pleadings or proof justify a holding that appellants would be entitled to a distribution through the Lyles canal. We will not discuss that question, as neither appellants nor appellee, by oral argument or brief, have suggested any method of distribution of the water other than through the Lyles canal. No question is made by appellants or appellee as to the sufficiency of the evidence to sustain every fact found by the court. We have, however, carefully reviewed the evidence in connection with the court’s finding, and have reached the conclusion that appellants acquired by limitation the right and title to the full one head of water flowing into their canal. By the sixth and seventh findings of fact the court makes it clear that, during the year 1870, G. B. Lyles was the owner of the entire 160 acres of land now owned by appellants, and that during that year he constructed a dam across Toyah creek where his lands abutted said creek, and by means of said dam and canals diverted a portion of the waters of said creek, the dam so constructed, the point of diversion, and the portion so diverted being the one head of water now in controversy, and conveyed the same to and applied said water to his lands for purposes of irrigation, and that said G. B. Lyles, and his vendees and successors- in title, appellants, have by means of said dam and canals continuously since the year 1870, during the crop season of each year, applied said waters to said lands for purposes of irrigation. Practically the same flow of water diverted and used by G. B. Lyles and appellants since 1870 is the same that now flows into and through appellants’ dam and canals; the lands are the same now as then; and the only difference we observe is a change in the extent and character of the crops, the crops in the later years being more extensive and requiring more water than formerly. The diversion and use of the water so made, and the character of the means used under the evidence and facts found, to our mind, show an actual and visible appropriation of the full one head of water for purposes of irrigation, and that the diversion and use of the said water was commenced and continued under a claim of right, viz. that the lands irrigated thereby are riparian to the Head spring and stream from which the water is diverted, and that such claim of that particular quantity, one head of water, and its diversion and actual use on the lands to which same was conveyed, was inconsistent with its use on any other land, and was necessarily hostile to the claim of any other person or land. No suit was filed by appellant or his predecessor in title or interest against appellants or tlieir vendees questioning tlieir ■right to divert or use the one head of water or any part of it during the 48 years such diversion and use have been made of the water by appellants and their predecessors in title. The uses of water for irrigation are so nearly akin to land and the uses of land, and in this sense is land, and the right of its use so runs with the land to which the right becomes appurtenant by its use in connection with the land, that in considering the question of limitation of 10 years we think the statute of limitation of 10 years applied to land would, by analogy, more nearly apxily to diversion and use of water for irrigation than would any other rule.

We have concluded' that the subsequent use of the water by appellant and his predecessor in title, and the character of the use made, commencing about 14 years later than that of appellants, and such use being subject to the use made by appellants, and only as to the excess and at such times as appellants were not making use of same, did not have the effect to destroy the prescriptive title already acquired or prevent the continued running of the statute. The use made by appellee of the excess of the one head of water was in no way adverse to that of appellants, but was more in the nature of a permissive use of their dam and canals and the excess of water. We think our conclusions are sustained by the following authorities: Cape v. Thompson, 21 Tex. Civ. App. 681, 53 S. W. 368; 2 Farnham, etc., § 499; 2 Kinney on Irrigation, §§ 1040, 1041; Gould on Waters, 334 and 337; note in 93 Am. St. Rep. at page 722.

We need not discuss the question of appel-lee’s right to water in Toyah creek flowing from the Head spring, but confine our opinion to his right to a pro rata division with appellants of the one head of water flowing through appellants’ dam and canals.

We think we need not in this ease discuss the doctrine of reasonable use of water. In our opinión, the facts do not suggest an application of the doctrine. For reasons stated, the ease is reversed and the temporary writ of injunction refused.
      <&wkey;>Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes