author: WALTHALL, J.

text:
    FIRST STATE BANK & TRUST CO. OF ABILENE et al. v. WALKER.
    (No. 587.)

    (Court of Civil Appeals of Texas. El Paso.
    June 15, 1916.
    Rehearing Denied June 29, 1916.)
    1. Fraudulent Conveyances <&wkey;74(3) — Giet —Statute.
    Under Rev. St. art. 3967, relating to fraudulent conveyances, to sustain a gift of land as against prior creditors it must appear that the grantor was, at the time of making the gift, possessed of property within the state subject to execution, sufficient to pay his existing debts.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 188; Dec. Dig-. <&wkey;> 74(3).)
    2. FRAUDULENT CONVEYANCES <&wkey;206(2) — Status as Prior Creditor — Renewal Note.
    Where a creditor takes a renewal note for his debt after the debtor makes a voluntary conveyance, the original debt still continues and has precedence over the fraudulent conveyance, if the debtor was insolvent at the time of the gift.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 630; Dec. Dig. &wkey;> 206(2).]
    3. Subrogation &wkey;>23(3) — Payment oe Mortgage-Voluntary Payment.
    A party, who, without interest to protect, voluntarily loans to a mortgagor to satisfy and cancel the mortgage, taking a new mortgage for his own security, cannot have the former mortgage revised and himself subrogated to the rights of the mortgagee, unless a subrogation takes place by reason of the agreement of the parties.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 63; Dec. Dig. <@^>23(3).]
    4. Subrogation <&wkey;41 (6) — Payment oe Mortgages — Agreement.
    The mere delivery, to the party loaning money to a mortgagor for the purpose of satisfying and canceling the mortgage, of the instrument and the note was not sufficient to show an express or implied agreement that the lender should be subrogated to the rights of the mortgagee under the old instrument, being an evi-dentiary fact merely tending to show such agreement.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 115; Dec. Dig. <&wkey;>41(6).]
    5. Subrogation &wkey;>23(l) — Payment oe Mortgages — Retention oe Instruments.
    Where money was lent a mortgagor to discharge mortgages, and the lender retained the instruments, their payment gave it the right of subrogation if it was not a mere volunteer.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 60; Dec. Dig. <&wkey;>23(l).]
    6. Fraudulent Conveyances <&wkey;272 — Solvency oe 'Grantor — Burden oe Pbooe.
    In suit to remove cloud on title, by one claiming under a parol gift from a debtor, against lenders of money to him, claiming the rights of mortgagees by subrogation, the burden was on plaintiff to show her donor’s solvency at the time of the gift only if defendants were prior creditors of the donor.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 804; Dec. Dig. <&wkey;> 272.)
    7. Fraudulent Conveyances <&wkey;271(l) — Status as Prior Creditor — Burden oe Prooe.
    In suit to remove cloud on title, by one claiming under a parol gift from a debtor, against lenders of money to him claiming the rights of i mortgagees by subrogation, the burden was on defendants to show that they were prior creditors of the donor.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 796; Dec. Dig. <S^> 271(1).]
    8. Witnesses <&wkey;159(7) — Disqualification— Transactions with Decedent — Action Against Corporations.
    In suit by one claiming under a parol gift from a decedent against corporations to cancel liens claimed by defendants as creditors of decedent, and to remove the cloud from her title, testimony of plaintiff as to transactions with, and statements by, such decedent showing the gift was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 674; Dec. Dig. <&wkey;159(7).]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Suit by Mrs. Alice G. Walker against the First State Bank & Trust Company of Abilene and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    J. M. Wagstaff and D. M. Oldham, both of Abilene, and O. C. Mulkey, of Commerce, for appellants. J. W. Moffett, of Abilene, for appellee.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

Mrs. Alice G. Walker brought this suit against the First State Bank & Trust Company of Abilene, Kansas City Life Insurance Company, Dalby & Ray, administrators of the estate of A. G. Hamilton, deceased, and Ford Fleming, for 100 acres of land in Taylor county, and alleged that, during his lifetime, A. G. Hamilton made a parol gift of the land to her, that she went into possession of the land under the gift, made valuable improvements thereon, and was entitled to recover same from the administrators of the estate and the other defendants who were lienholders on the land. She asked for a cancellation of the liens and removal of cloud from title.

Fleming answered that he had no interest, and was a mere trustee of the Kansas City Life Insurance Company. The Kansas City Life Insurance Company answered by general demurrer, general denial, alleged that it was a lienholder on the land, its lien having been placed on the land by A. G. Hamilton during his lifetime, that it had no notice of plaintiff’s claim, that its claim had been proved up before the administrators and allowed as a lien claim, that its claim was a continuation of a mortgage originally executed and placed on said land prior to plaintiff’s claim, and was a valid lien even if there was a parol gift to plaintiff; that, at the time of the alleged gift, Hamilton was largely indebted to others over and above the value of his property; that his indebtedness includes large sums for the purchase of the land described in plaintiff’s petition. The Kansas City Life Insurance Company also plead that it was subrogated to the rights of a mortgage executed by Hamilton to Russell, and that mortgage taken up by Aston, the Russell mortgage being prior to the alleged gift. Dalby [& Ray answered by general denial, general demurrer, and adopted the pleadings of the First State Bank & Trust Company and the Kansas City Life Insurance Company. The First State Bank & Trust Company adopted the pleadings of the Kansas City Life Insurance Company and set up the mortgage on the land involved in this suit, and alleged that it was an innocent lienholder for value. The appellee, by supplemental petition, denied the facts alleged by defendants; denied that defendants were creditors of Hamilton at the time of the parol gift, but were subsequent creditors and lienholders with notice; that, if any debts or liens existed on the land claimed by her at the time, same has long since been paid off, canceled, and released of record. The following are the questions submitted to the jury and their answers:

“No. 1. Did A. G. Hamilton, by designation and description sufficient to identify it, give the 100 acres of land in controversy to the plaintiff in 1908? Answer: Yes.
“No. 2. When the plaintiff went upon the land in controversy in October, 1909, did she then take possession of the land as her own property under a bona fide belief that the absolute fee of said land had been given to her by A. G. Hamilton? Answer: Yes.
“No. 3. Has the plaintiff been in continuous possession of the land in controversy and claiming the same as her property since October, 1909? Answer: Yes.
“No. 4. At the time A. G. Hamilton caused the house to be moved upon the land in controversy, was he acting for plaintiff, and did he intend that such should become the property of the plaintiff? Answer: Yes.
“No. 5. At the time R. G. Hamilton grubbed certain land, and built certain fences, sheds, barns, and outhouses upon the land in controversy, did he make such improvements for the plaintiff as her property? Answer: Yes.
“No. 6. During the time the plaintiff has occupied the premises in controversy, has any one else, claiming such premises adversely to her, or holding under others claiming adversely to her, occupied said house with her? Answer: No.
“No. 7. At the time he took his mortgage on October 1, 1910', did W. J. Aston have constructive notice of the claims of plaintiff to the property in controversy? Answer: Yes.
“No. 8. At the time the representatives of the Kansas City Life Insurance Company took Its mortgage on December 4, 1911, did they have constructive notice of the claims of plaintiff to the land in controversy? Answer: Yes.
“I further instruct you that where, at the time of the execution of a mortgage, a person other than the mortgager is in actual possession of the mortgaged premises, and such possession is open, notorious, and visible and unequivocally hostile to the mortgagor, then, in l_aw, such possession would be sufficient to put the mortgagor upon inquiry as to the rights of the person in possession.
“No. 9. At the time he took his mortgage on October 1, 1910, did the possession of plaintiff meet the above requirements such as to put the said Aston upon inquiry? Answer: Yes.
“No. 10. At the time the representatives of the Kansas City Life Insurance Company took its mortgage on December 4, 1911, did the possession of plaintiff meet' the above requirements such as to put said representative upon inquiry? Answer: Yes.”

To the following special questions, the jury made the following answers:

“No. 1. Did the plaintiff place on the land, involved in this suit, improvements, after October 6, 1909? Answer: Yes.
“No. 2. If plaintiff placed improvements on the land after October, 1909, what was the value of such improvements so placed on the land? Answer: $584.
“No. 3. Did the agent of the Kansas City Life Insurance Company use such care and diligence to discover the plaintiff’s claim to the land, if any, as an ordinarily prudent person would use under the same or similar circumstances? Answer: No.
“Question (a). Was the improvement placed on the land in controversy by A. G. Hamilton or by Mrs. Alice Walker? Answer: Mrs. Walker.
“Question (b). What was the value of said improvements? Answer: $884.
“Question (c). What was the value of the use, that is, the rental value of said premises and land, from October 6, 1909, to the present date? Answer: $500.
“Question (d). Has R. G. Hamilton been a tenant of A. G. Hamilton since October 6, 1909? Answer: Yes.
“Question (e). If so, then concerning what land or lands? Answer: Land or lands, but not lands in controversy.”

On defendant’s motion for additional findings, the court made the following additional findings:

“(1) The evidence in this case failing to show that, during the years 1907, 1908, 1909, 1910, 1911, 1912, and 1913, or during any of said years, the said A. G. Hamilton was insolvent, the court finds that the said A. G. Hamilton was solvent.
“(2) That on October 1, 1908, A. G. Hamilton executed to J. C. Russell a note for $5,000 and to secure same a mortgage covering the land in controversy, and also 197 acres of additional land, which mortgage was at once recorded in the county clerk’s office of Taylor county, Tex.
“(3) That after said Russell note became due, on October 1, 1909, the said A. G. Hamilton borrowed from W. J. Aston, $6,725, to pay off said Russell note, and executed and delivered to W. J. Aston a note for such amount and likewise a mortgage upon the same land covered by the Russell mortgage, which mortgage was placed of record in Taylor county, immediately thereafter.
“(4) That about the 1st day of December, 1911, the said Hamilton borrowed from the Kansas Oity Life Insurance Company, one of the defendants in this case, the sum of $7,000, which he used in paying off the said Aston note; and at such time the said Hamilton executed and delivered to the said Kansas City Life Insur-anqe Company a note for said amount, secured by a mortgage upon the above-mentioned land and other lands, which mortgage was properly recorded in the office of the county clerk of Taylor county, Tex. At the time the above note and mortgage were given to the Kansas City Life Insurance Company, all of the Aston papers were likewise delivered to said insurance company.
“(5) At the time said Russell made said loan, Cunningham and Oliver, attorneys of Abilene, examined the title of such land for him; and, at the time said Aston and the Kansas Cjty Life Insurance Company made their loans, J. M. Wagstaff, an attorney of Abilene, examined the title for them, and, at the time of the loaning of said money respectively, each of said mortgagees believed that they were loaning money to A. G. Hamilton and believed that said A. G. Hamilton had good title to the land covered by their mortgages, and believed that they were getting a first lien on said land.
“(6) As to all other matters which the defendants have requested the court to find on, it is the opinion of the court that the record does not warrant the court in making the findings such as are requested by the defendants, and the court therefore declines to make the findings.

The court rendered judgment for plaintiff for the 100 acres of land in controversy, and decreed that the deed of trust executed by A. G. Hamilton to Fleming for the use and benefit of the Kansas City Rife Insurance Company, and the deed of trust executed by Hamilton to Bynum as trustee for the First State Bank & Trust Company, so far as they cover the one hundred acres, be canceled; that the cloud on appellee’s title by reason of said deeds of trust be removed, and that appellee be quieted in her title as to all of appellants.

The refusal of the court to give appellants’ peremptory instructions to the jury, to find in favor of appellants, is made the ground of error in each of the first three assignments, the first, on the ground that there is no evidence in the record tending to show that Hamilton was solvent at the time of the alleged gift of the land to appellee, there being evidence to show that, at the time of the gift, Hamilton owed debts which have not been paid, said debts having been proved up before the administration of the estate of Hamilton, and said debts are now represented in this suit by the administration of the Hamilton estate; the second, on the ground that the peremptory instruction should have been given for the reason that there was no testimony to show that appellee had made valuable improvements on the land, the evidence showing that the improvements were placed there by Hamilton; the third assignment claims that the peremptory instruction should have been given in appellants’ favor on the ground that the evidence fails to show exclusive possession'and control of the land under the alleged gift.

In order to sustain the gift under article 3987, Revised Statutes, as against prior creditors, it must appear that such debtor was then' possessed of property within this state subject to execution, sufficient to pay his existing debts. In Maddox et al. v. Summerlin et ux., 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567, our Supreme Court construes the above article as placing the burden on the one seeking to uphold the gift to show the solvency of the donor, at the time of the gift, as to prior creditors. Two questions are thus presented: Are appellants prior creditors? If they are, has appellee discharged the burden of showing the solvency of Hamilton at the time of the gift? The issue of Hamilton’s solvency at the time of the gift was not submitted to the jury. We do not find in the record a request by either for a finding as to whether Hamilton was solvent at the time of the gift. The court’s first additional -finding is not such finding, although possibly intended to be such. The jury found that Hamilton made a gift of the land to Mrs. Alice G-. Walker, in 1908, and that she took possession of the land under the gift in October, 1909.

At the request of appellants, the court made additional findings of fact. The court found that on October 1, 1908, Hamilton executed to Russell a note for $5,500 and, to secure the note, gave a mortgage on land including the land in controversy. That on October 1, 1910, Hamilton borrowed $6,725 from Aston to take up the Russell note, and again gave a mortgage on the same land to secure the Aston loan. That, in 1911, Hamilton borrowed $7,000 fro mi appellant, Kansas City Life Insurance Company, to pay off the Aston note, in each instance executing a new mortgage on the land to secure the new loan. It is evident that the indebtedness of Hamilton now held by the Kansas City Life Insurance Company, less the accrued interest, existed at the time of the gift, the same indebtedness being evidenced by different obligations held at different times by different creditors; while it is equally evident that the holding of the indebtedness by the appellee, the Kansas City Life Insurance Company, was not prior but was subsequent to the gift. Unless the appellants are prior creditors within the meaning of the statute, they are not in a position to question the validity of the gift on the ground that it is without consideration, or that Hamilton was insolvent at the time of the gift. It is evident that there is a difference in the attitude that Russell sustained toward the indebtedness of Hamilton at the time of the gift, and that sustained by Aston. Russell clearly was a prior creditor. If Russell had taken a renewal note for his then existing debt, under Gonzales v. Adoue et al., 94 Tex. 120, 58 S. W. 951, the original debt would still continue and would hold preference over the voluntary conveyance of Hamilton, if he was insolvent at the time of his gift. The most that can be said of Aston is that he was a subsequent holder or purchaser of a prior indebtedness. Aston was not a creditor in any sense, was not interested in the Hamilton matters, until he loaned his money on the Hamilton note and mortgage on the 1st of October, 1910. He was interested in the disposition made of the money to the extent of seeing that the Hamilton mortgage to Russell was satisfied, thereby making his the first mortgage. His loan in no wise referred to the Russell note or mortgage, expressed no agreement of subrogation of right that Russell had, and his loan was in no way in protection of any interest he had in any of Hamilton’s affairs. When his note became due the same proceeding was had as to appellant, Kansas City Life Insurance Company, its money discharging the Aston note and mortgage and a new note and mortgage executed in its favor, the new note and mortgage in no wise referring to the Russell or Aston notes or mortgages, nor do they contain any agreement for subrogation of any right of either. Appellants, Kansas City Life Insurance Company, and its trustee, and those adopting its pleading, alleged that its loan to Hamilton of $7,000 was for the purpose of and that it was used to take up the Aston note and mortgage lien, and that by reason thereof, and by reason of the agreement of the parties, appellant is subrogated to the rights of Russell and Aston. The facts stated in the pleadings as to the purpose and effect of the loan, to take up the preceding Hamilton note and mortgage, is clearly sustained both by the finding of the court and the evidence, but, in our opinion, not so as to the allegation of subrogation, and we are of the opinion, as appellants seem to be by their pleading, that before appellant, the Kansas City Life Insurance Company, has the right to set aside the gift, it must show that it is a prior creditor by reason of its having been subrogated to that right, by the attitude it sustains to the Russell note.

The principal underlying subrogation is indemnity and no more. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. Neither the Aston loan nor the loan of appellants to Hamilton was made to protect any interest then held by the lender. There was not in either instance a substitution of one creditor for that of the other, to whose rights the subsequent creditor succeeded in relation to the former debt, and in neither case was the subsequent loan an act done in protecting an interest then held by the lender. In fact, there is nothing in either loan to Hamilton that suggests an equitable proceeding, but each subsequent lender or creditor, after the Russell loan, is a mere volunteer, a stranger, in the matter of the loan, and the doctrine of subrogation does not enter into the transaction, unless it be by reason of an agreement between the parties that it should, as pleaded by appellants. It has often been held that one, who, having no interest to protect, voluntarily loans money to a mortgagor for the purpose of satisfying and canceling the mortgage, taking a new mortgage for his own security, cannot have the former mortgage revived and himself subrogated to the rights of the mortgagee therein. 37 Cyc. 471; Rice v. Winters, 45 Neb. 517, 63 N. W. 830; Pollock v. Wright, 15 S. D. 134, 87 N. W. 584. Under such circumstances, if any subrogation takes place, it must be by reason of an agreement of the parties. Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273. But there is no finding nor a request for a finding as to whether there was such agreement, either express or implied. In the Fievel v. Zuber Case, supra, the court said:

“A party who has an interest in property, to be protected by discharging an incumbrance upon it, has the right to pay it and to substitute himself to the rights of the lienholder, whether either the creditor or debtor give his assent or not. But neither Brown nor Kaufman and Runge had such right. -As long as the note remained undischarged in the hands of the * * * holder or his indorsers, they were strangers to the title. Brown, as mere trustee in the deed in trust, had the power to make a sale if the debt were not paid, but had no interest in the property to be protected by the discharge of the lien. If any subrogation took place, therefore, it must have been by agreement of parties. That this can be accomplished by a payment in accordance with an express understanding between the debtor, the creditor, and a third party, to the effect that if such third party pays the debt he may hold the security for his reimbursement there can be no doubt. Dillon v. Kauffman, 58 Tex. 696; Flanagan v. Cushman, 48 Tex. 241; it is also recognized law that a payment upon a like agreement between a stranger and the creditor will have the same effect. In both these cases, however, this would seem a virtual assignment without reference to the doctrine of subrogation.”

It seems to us that, appellee being a stranger, a mere volunteer to the debt, having no interest to be protected by the payment of the Aston note and a release of the mortgage securing that note, if Aston had such an agreement with Russell as to give him the right of subrogation, it would be necessary that appellant show that it had such agreement with Aston. We do not believe that the mere delivery to appellant, the insurance company, of the Aston note and mortgage, as found by the court, would be sufficient to show an express or implied agreement for the right of subrogation. It is an evidentiary fact only tending to show such agreement. The retention of the Russell and Aston notes and mortgages and their payment would be sufficient to give the right of subrogation if appellant, the insurance company, were not a mere volunteer. Ætna Life Ins. Co. v. Middleport, 124 U. S. 534, 8 Sup. Ct. 625, 31 L. Ed. 537. The burden is on appellee to show the fact of Hamilton’s solvency at the time of the gift only in the event appellants are prior creditors. The record does not show that fact to have been established. Until the fact that appellants are prior creditors is shown, they would not be in a position to question her title. That they are prior creditors is purely defensive, and the burden is on appellants to show that fact. For the reason given, the first three assignments are overruled.

Appellants’ ninth and tenth assignments, complaining of error in permitting Mrs. Walker to testify as to transactions with and statements by Hamilton with her, in showing the alleged gift to her of the land, must be overruled, under San Antonio Light Publishing Company v. Moore, 46 Tex. Civ. App. 259, 101 S. W. 867.

Other assignments not specifically passed upon have been fully considered and are overruled, as they come within the principles discussed under the first three assignments.

We believe that the findings of fact so far as made by the jury and the court are well sustained by the evidence. We adopt their findings. Finding no reversible error, the case is affirmed.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    MODERN WOODMEN OF AMERICA v. YANOWSKY.
    (No. 5628.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1916.
    On Motion for Rehearing, May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Insurance <&wkey;813 — Fraternal Associations — Action on Policy — Pakties.
    In a suit on a certificate of a fraternal association originally payable to plaintiff’s father and mother, wherein plaintiff claimed to own all their interests by virtue of assignment from the heirs of her father, the failure to make her father a party was not error, where it appeared that he was dead.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1994; Dec. Dig. &wkey;813.]
    2. Appeal and Eeeob <&wkey;731(5) — Assignment OE ERROR — SUFFICIENCY.
    An assignment of error in that “the verdict was not sustained by the evidence, the facts proven being insufficient on which to base a verdict for the plaintiff,” was too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3021; Dec. Dig. &wkey;>731(5).]
    3. Appeal and Error. <&wkey;>730(2) — Assignment oe Error— Setting out Charge.
    An assignment of error complaining of material omissions from the court’s general charge in that it failed to give certain instructions and in that it erred in the general charge, where neither it nor the statement contained the charge objected to, and where there was no reference to the page of record where the charge might be found, presented nothing for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3014, 3015; Dec. Dig. &wkey; 730(2).]
    4. Trial <&wkey;255 (1) — Request for Instruc-tio ns — Necessity.
    Notwithstanding Acts 33d Leg. c. 59, requiring all objections to the court’s charge to be presented in writing to the opposing counsel and the court before the jury is instructed, it is still necessary to request a special instruction to supply an alleged omission in a charge.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 627-629; Dec. Dig. &wkey;255(l).]
    5. Appeal and Error <@=^268(1) — Exception to Charge — Sufficiency oe Evidence.
    Under Acts 33d Leg. c. 59, the complaint as to the sufficiency of the evidence to support a verdict would not be considered, where no exception was taken to the trial court’s charge submitting the issue. »
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1596, 1604; Dec. Dig. &wkey;26S(l).]
    6. Appeal and Error &wkey;>994(2) — Review— Yeedict.
    In a suit on a certificate of insurance, defended on the ground of nonliability by reason of failure to pay assessments, the credibility of the witnesses and the weight to be given their conflicting testimony was for the jury, and its verdict could not be disturbed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3902, 3903; Dec. Dig. <&wkey;> 994(2).]
    7. Descent and Distribution <&wkey;91(5) — Action on Policy by Heir of Beneeioiaey —Pleading.
    In a suit on an insurance certificate payable to insured’s father and mother as beneficiaries, where plaintiff claimed to own all the beneficiaries’ interest by inheritance and assignment from her mother and from all the heirs of her father, a petition alleging that the insurer agreed to pay to each of the original beneficiaries sum of $1,000 each at the death of the insured, the subsequent death of her father, without alleging that he died intestate and that there was no administration and no necessity for administration, was error of law apparent upon the face of the record and fundamental.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 365; Dec. Dig. 4&wkey; 91(5).]
    8. Descent and Distribution <&wkey;91(5) — Actions by I-Ieirs — Demurrer.
    In such case the want of allegations that no administration was pending and that none was necessary could properly be raised by a general demurrer to the petition.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 365; Dec. Dig. 91(5).]
    9. Descent and Distribution <&wkey;91(5)— Fraternal Associations — Action on Certificate — Jurisdiction—Interest of Joint Beneficiaries.
    A petition not showing plaintiff’s legal right to sue for the beneficial interest of her deceased father, one of the two original joint beneficiaries in the policy, did not give the trial court jurisdiction to adjudicate the interest of the deceased beneficiary, and judgment disposing of such interest was fundamental error.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 365; Doc. Dig. <©=>■ 91(5).]
    10. Judgment &wkey;>24S — Conformity to Pleadings — Allegations to Support.
    Facts proven, but not alleged, cannot form the basis of a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. <S&wkey;248.]
    11. Executors and Administrators <&wkey;53— Exempt Property.
    Where the fund due upon a policy of insurance is exempt property, it is not subject to administration.
    [Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. &wkey;>53.]
    12. Executors and Administrators <&wkey;46 —Fraternal Associations — Proceeds of Policy — Exemption.
    Where one of the joint beneficiaries named in a certificate of insurance survived the insured and died in April, 1913, before the fund was exempted from administration by Acts 33d Log. c. 113, § 21, and where the rights of creditors to subject the benefits to the payment of debts became fixed upon the death of the insured, the fund was not exempt at the death of the joint beneficiary.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 297; Dec. Dig. &wkey;>46.]
    On Motion for Rehearing.
    13. Appeal' and Error <S=oll72(2) — Determination-Partial Reversal.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x) declaring that, where the issues are severable, the judgment shall be reversed only as to that part affected by error, a judgment in a suit on an insurance certificate showing on its face that it was the intention of the parties that it should be a severable contract would be reversed in so far as it affected the interest claimed as an heir and by an assignment of other heirs of a deceased beneficiary, affected by fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4556; Dec. Dig. &wkey;> 1172(2).]

      Error from District Court, Bexar County; R. B. Minor, Judge.
    Action by Minnie Yanowsky, as assignee of Rosie Yanowsky and of tbe beirs of Shop-sy Yanowsky, tbe beneficiaries named in a policy of insurance, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error.
    Reversed in so far as tbe judgment affects tbe interest claimed from Shopsy Yanowsky, and cause remanded.
    Truman Plantz, of Warsaw, Ill., and Pat M. Neff, of Waco, for plaintiff in error. Arnold, Cozby & Peyton, of San Antonio, for defendant in error.
   SWEARINGEN, J.

This suit was instituted by Minnie Yanowsky against the Modern Woodmen of America, an incorporated fraternal beneficiary organization, to recover $2,000 claimed to be due by virtue of the maturity of an insurance policy issued to Leon Yanowsky, a brother of plaintiff. Tbe policy was payable to Shopsy and Rosie Yanowsky. Plaintiff claimed to own all tbe interests of both beneficiaries named in the policy, by virtue of inheritance and assignments from the beneficiary Rosie Yanowsky and from all the beirs of the beneficiary Shopsy Yanowsky. Tbe defendant organization answered by general demurrer and affirmatively that there was no liability on the policy sued on, because of violations of the contract by Leon Yanowsky during his life. Among other violations it was averred that Leon Yanowsky had failed to pay assessment No. 271, for February, during February, whereby he was suspended, and his attempted reinstatement was invalid because of breach of warranty of health at time of reinstatement. The case was tried before a jury.

Plaintiff in error’s first assignment complains of fundamental error and submits this proposition thereunder:

“Shadsa (or Shopsy) Yanowsky being named as one of the beneficiaries in the policy sued upon, he was a necessary party to his suit for the collection thereof. The failure to make him a party is therefore such fundamental error as will be considered on appeal without assignment of error thereon in the court below.”

A sufficient answer to this proposition is that the petition of defendant in error alleged that Shadsa Yanowsky died in April, 1913, and there was uncontradicted evidence that warranted the jury in finding that Ya-nowsky was dead. The failure therefore to make Shadsa Yanowsky a party to the suit was not error, fundamental or otherwise.

Under the second assignment of error, plaintiff in error submits the following proposition :

“During coverture the husband has the sole management, not only of all community property, but also the sole management of the wife’s separate property.”

Inasmuch as the death of the husband, Shadsa Yanowsky, was both alleged and proved, this proposition under the second assignment presents no error.

The third assignment of error is as follows:

“Because the verdict is not sustained by the evidence, the facts proven being insufficient on which to base a verdict for the plaintiff.”

This assignment is too general to require consideration. Stacy v. Delery, 57 Tex. Civ. App. 242, 122 S. W. 303; Estes v. Estes, 122 S. W. 305; First State Bank v. Jones, 139 S. W. 671.

The fourth, fifth, and sixth assignments complain of material omissions from the court’s general charge. The assignments are as follows:

Fourth: “Because the court did not instruct the jury as to the law in this case as to whether or not the plaintiff, Minnie Yanowsky, had authority under the law to bring this suit.”
Fifth: “Because the court did not instruct the jury as to what the law was in regard to the rights of Shopsy (Shadsa) and Rosie Yanowsky, who were named as the beneficiaries in the policy or certificate on which this suit is based.”
Sixth: “Because the court erred in his general charge to the jury for the reasons stated in the defendant’s exceptions taken and filed with the court before said charge was read to the jury, in this: The court did not instruct the jury in regard to the administration of the estate of Leon Yanowsky or the estate of Shad-sa Yanowsky, and leaves the jury in darkness as to what the law is with respect to the transfer of interests of deceased persons.”
“These assignments are not presented in accordance with the rules, and cannot be considered. Neither the assignments nor the statement contains the charge objected to. * * * Nor are we directed to the page of the record where the charge can be found.” Darby v. White, 165 S. W. 481.

Furthermore, plaintiff in error did not request a special instruction to supply the omission now complained of. In 1907 the Supreme Court, through Justice Williams, held that it was necessary for the complaining party to supply an omission from the general charge by requesting a special instruction. Observe the following:

“* * * What is complained of was the mere omission of the court to go as far as it is now contended it should have gone, which omission should have been supplied by a request for a special instruction. Parke v. San Antonio Trac. Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; San Antonio & Aransas Pass. Ry. v. Lester, 89 S. W. 752. For this reason we say that the question indicated as in the minds of the Court of Civil Appeals does not appear from the certificate to be properly presented in the case.” Yellow Pine Oil Co. v. Noble, 100 Tex. 360, 99 S. W. 1024.

The Legislature (Gen. Laws 1913, p. 114) made a change in the law governing charges to juries, requiring all objections to the court’s charge to be presented in writing to the opposing counsel and the court before the jury were instructed. The question naturally arises: Since the passage of that act of 1913 is the trial court’s attention properly called to the omission by exception, incorporated in the record by bill of exception, or is it still necessary to request a special instruction as was necessary before the act of 1913? The question is answered by the Court of Appeals; for in May, 1915, after tbe act of the Legislature of 1913, the appellate court held that a special requested instruction is still necessary to avail of an omission. Texas Central R. Co. v. Claybrook, 178 S. W. 581 (writ of error pending in Supreme Court).

For the reasons indicated, we cannot sustain the fourth, fifth, and sixth assignments.

The seventh assignment is as follows :

“Because the verdict of the jury is contrary to the overwhelming preponderance of the evidence, in that the overwhelming preponderance and weight of the evidence clearly showed that assessment 271 was not paid until about March 29, 1912, and was not paid at any time during the month of February, 1912.”

The court’s general charge instructed the jury upon the issue involved in this assignment as follows:

“If you further believe from the evidence that assessment 271 for the month of February, 1912, was paid to E. M. Hawk, the clerk of Bexar Camp of the Modern Woodmen of America, during the month of February, 1912, then you are instructed that your verdict must he for the plaintiff. If you believe from the evidence that assessment 271 for the month of February, 1912, was not paid during the month of February. 1912, then you are instructed to find for the defendant.”

This charge was submitted to attorneys for plaintiff in error before being read to the jury. Plaintiff in error made no objection to the charge in so far as it submitted the issue of the date of payment of assessment No. 271. No charge was requested for an instructed verdict. It has been repeatedly held that complaint of the sufficiency of the evidence to support a verdict will not be considered where no exception was taken to the trial court’s charge. In the case of Elser v. Putnam Land & Development Company, 171 S. W. 1052, the law is clearly construed:

“The act approved March 29, 1913 (Gen. Laws 1913, p. 114), which we have several times had occasion to consider, provides, among other things, that: ‘The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.’ In the case before us the issues raised by the pleadings and evidence were generally submitted to the jury by the court’s charge. * * * No objections to the court’s general charge, nor to the special charge submitting the defense noted, were made in accordance with the terms of the act of the Legislature referred to. So that, ii we are to give the effect that the law says shall be given, when the issues are submitted without objection, the plaintiff in error is in the attitude of a litigant who, after the introduction of the evidence, has' submitted to him the charge of the court and special charges given, and who has ‘approved’ such charges, thus legally assuming the position that the evidence before the court requires the submission of the issue to the jury for determination. If the facts were clearly uncontroverted which entitled the plaintiff in error to a judgment, he should have requested an instructed verdict. This he did not do, but assumed, as we have seen, the inconsistent position of saying to the court, in effect, This case cannot be taken from the jury on the ground that there is no evidence to support the cause of action or defense.
“In the case of Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991, this court, among other things, said: ‘If, as provided by the amended statutes (act of 1913, above mentioned), a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them.’
“If the proposition embodied in the quotation is correct, and we think it is, it can hardly be contended that plaintiff in error, under the circumstances _ stated, will now be heard to say that the evidence in his favor is ‘uncontrovert-ed’ ; for by a long line of decisions in this state,, it has been held that an appellant cannot complain of a charge given at his request. It is held to be invited error of which he can take no advantage on appeal. We conclude' that plaintiff in error cannot now be heard upon the only proposition he urges before us.”

Then again the issue of fact was clearly and distinctly made by evidence of a direct and positive character; for the defendant in error, Minnie Yanowsky, testified, as shown by the statement of facts and plaintiff in error’s bill of exception No. 5, that Leon Yanowsky paid assessment No. 271, for February, in February. The witnesses for plaintiff in error who testified to the date of the payment of No. 271 assessment were Mr. E. M. Hawk and his wife. Mr. Hawk said he had no independent recollection of the date of the payment and had to rely upon his books. He further testified that he would not say the payments were made on the dates indicated in either the letters, the books, or the receipts. Mrs. Hawk did not testify whether or not Mr. Hawk was in San Antonio during the month of February, 1912. She did, however, testify that the February and March money was paid to her on the 29th of March. Inasmuch as the jury was the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony, this court cannot disturb the jury’s verdict upon this question of fact. This assignment must be overruled.

Plaintiff in error in propositions under the fourth, fifth, and sixth assignments has directed this court’s attention to a fundamental error which is apparent in the petition of defendant in error. The original petition, filed August 23, 1913, by defendant in error, is the foundation of the case at bar. It is as follows:

“(1) Now comes Minnie Yanowsky, and, complaining of the Modern Woodmen of America, alleges:
“(2) That plaintiff is a resident of Bexar county, Tex., and the defendant is a fraternal beneficiary association incorporated under the laws of the state of Illinois, and doing business in Bexar county, Tex., and having an agent in Bexar county in the person of E. M. Hawks, upon whom service of citation in this cause may be had.
“(3) Plaintiff further alleges that the said defendant is a fraternal beneficiary society engaged in the life insurance business, and that the said defendant issued its policy of insurance on the life of Leon Yanowsky, such policy being dated December 8, 1910, and a copy of which is hereto attached and marked Exhibit A, and for all purposes made a part of this petition, and the defendant, in consideration of certain premiums or assessments, contracted and agreed in accordance with said policy of insurance to pay unto Shopsy Yanowsky and Rosie Yanowsky the sum of $1,000 each, respectively, upon the death of said Leon Yanowsky; the said defendant contracting and agreeing to pay the sum of $2,000 upon the death of Leon Yanowsky to the beneficiaries designed by Leon Yanowsky in accordance with the provisions of said certificate of insurance above referred to.
“(4) Plaintiff further alleges that the said Leon Yanowsky, while in good standing, and while a member of the fraternal society, and while said policy was in full force and effect, died on or about October 12, 1912, and at the time of his death said policy of insurance matured.
“(5) Plaintiff further alleges that prior to the death of said Leon Yanowsky, in consideration of the plaintiff helping Leon Yanowsky in his business, Leon Yanowsky contracted and agreed with the plaintiff that the plaintiff should have the $2,000 referred to in said policy of insurance upon the death of said Leon Yanowsky, and the plaintiff is the sister of Leon Yanowsky, and by virtue of said contract with Leon Yanowsky is entitled to be and is the beneficiary under said policy of insurance.
“(6) Plaintiff further alleges that the said Rosie Yanowsky referred to in said policy of insurance is the mother of the plaintiff, and the said Shopsy Yanowsky was the father of the plaintiff, and the said Shopsy Yanowsky died- on or about April, 1913, and left as his only heirs his wife, Rosie Yanowsky, and his children, Mrs. Lena Smith, Ida Yanowsky, Louis Yanowsky, and the plaintiff; and subsequent to the death of the said father, and subsequent to the death of said Leon Yanowsky, the said Rosie Yanowsky and the heirs of the said Shopsy Yanowsky transferred and assigned unto the plaintiff all interest which they might have in and to the proceeds of the above-described policy of insurance, and confirmed the transfer of said policy of insurance made by Leon Yanowsky prior to his death, and confirmed the attempted change of beneficiary made by Leon Yanowsky prior to his death, and by virtue of all of the foregoing the plaintiff is entitled to all of the rights under said policy of insurance which the said Shopsy Yanowsky and Rosie Yanowsky would have been entitled to had no change of beneficiary been made by Leon Yanowsky, and had no transfer been made to this plaintiff as above alleged.
“(7) Plaintiff further alleges that by virtue of said policy or certificate of insurance above referred to, and -by virtue of the said beneficiary made by Leon Yanowsky, and by virtue of said transfer as above alleged, the defendant is indebted to this plaintiff on said policy of insurance in the sum of $2,000, and this plaintiff is the owner of all rights under said policy of insurance as above alleged.
“(8) Plaintiff further alleges that at the time of the death of Leon Yanowsky he was in good standing, and the defendant contracted and agreed to pay the $2,000 upon the death of Leon Yanowsky to the beneficiaries named in said certificate of insurance, and by virtue of the said change of beneficiary made by Leon Yanow-sky, and by virtue of the said transfer to this plaintiff, this plaintiff is entitled to all of the rights that the beneficiary named in said policy would have been entitled to.
“(9) The plaintiff alleges that all proofs of loss required by the above policy of insurance, or by the by-laws, have been furnished by the plaintiffs to the defendant, and the defendant on or about April 1, 1913, refused to pay the claim, and denied liability thereunder.
“Considering the premises, plaintiff prays for citation upon defendant, and that upon hearing hereof she have judgment against the defendant for the sum of $2,000, with 6 per cent, per an-num interest thereon from April, 1913, and all costs of court; and she further prays for general and special relief.”

It will be noticed that in paragraph 3 it is alleged that plaintiff; in error agreed to pay unto Shopsy Yanowsky and Rosie Yan-owsky the sum of $1,000 each, respectively, upon the death of Leon Yanowsky.

In paragraph 4 the death of Leon Yanow-sky on or about October 12, 1912, is alleged.

In paragraphs 6 and 7 it is alleged that Shopsy Yanowsky, one of the joint beneficiaries named in the insurance contract, died in April, 1913; and it is further alleged that all his interest in the contract became vested, after his death, before the filing of this suit, in the defendant in error, his daughter, by inheritance and by assignment from all his heirs. It will further be observed that the petition of defendant in error contains no allegation that Shopsy Yanowsky died intestate ; that there was no administration; that there was no necessity for an administration. And the petition contains no allegation that will excuse the omission of such allegations. The omission of such allegations from the petition of defendant in error is an error of law apparent upon the face of the record and is fundamental.

Our Supreme Court, considering this question, says:

“We answer that the want of an allegation that ‘no administration was pending and that none was necessary’ could properly be raised upon a general demurrer to the petition. A general demurrer has the effect to admit as true for that purpose all facts which are alleged in the pleading challenged, as well as all facts which may reasonably be inferred from the facts alleged. If a fact necessary to be proved to sustain a recovery on the part of the plaintiff be neither alleged in the petition nor fairly inferable from facts alleged, a [general] demurrer to the petition must be sustained. Canales v. Perez, 65 Tex. 293; Warner v. Bailey, 7 Tex. 517. If the plaintiff in this case had alleged that there was no administration upon the estate of the decedent and no necessity for such administration, but had failed to prove it upon a trial, judgment must have been given for the defendant. Can the existence of those facts be inferred from the allegations of the petition in this case? It is claimed that the allegation that the estate was solvent would support the inference that ‘there was no administration nor necessity for administration.’ The estate might be solvent, and yet there would be a necessity for administration to pay the debts and to settle the affairs of the estate, to get it in proper shape for distribution among the heirs. The law does not provide that administration shall be had upon insolvent estates only, nor that heirs may sue for the property if the estate be solvent.
“In Richardson v. Vaughan, 86 Tex. 93 [23 S. W. 640], this question was raised by an exception that ‘the plaintiffs had no right to institute and prosecute the suit as the heirs of John P. Richardson.’ The trial court sustained the demurrer and dismissed the case, which judgment was affirmed by the Court of Civil Appeals, and upon writ of error to this court the judgment was affirmed. That case is directly in point, and settles the question certified to this court; for the objection was raised in that case by what was practically a general demurrer. The report of the case in 86 Texas does not show the manner in which the question arose, but the report of the decision of the Court of Civil Appeals shows that the question was raised as stated. [Richardson v. Vaughan] 22 S. W. 1112.” Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015.

And, further, since the petition has failed to make the necessary allegations required by law 'to show that defendant in error has the legal right to sue for the interest of Shadsa Xanowsky? one of the two joint beneficiaries of the contract, it follows that the petition does not give to the trial court jurisdiction to adjudicate the interest of Shopsy Xanowsky. To render judgment disposing of this interest of the joint beneficiary not legally before the court was fundamental error. Western Grocery Co. v. Jata & Co., 173 S. W. 518; Hanner v. Summerhill, 7 Tex. Civ. App. 235, 26 S. W. 906; Monday v. Vance, 32 S. W. 559; Anderson v. Chandler, 18 Tex. 436; Ebell v. Bursinger, 70 Tex. 120, 8 S. W. 77.

Defendant in error urges that the omission in the pleadings is cured by the evidence. Justice Reese says:

“It is not necessary to cite authorities to sustain the proposition that facts proven, but not alleged, cannot form the basis of a judgment.” Stacy v. Delery, 57 Tex. Civ. App. 242, 122 S. W. 303.

Defendant in error insists that, because the petition shows on its face that the fund sued for is exempt property, any attempt by the court to subject it to administration is null and void, as is the case with homesteads. This is a correct proposition of law as to exempt property. Kimmons v. Abraham, 176 S. W. 671; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481; Dignowity v. Baumblatt, 38 Tex. Civ. App. 363, 85 S. W. 835.

Section 21, p. 228, of the General Laws of Texas, Regular Session, 33d Leg. 1913, does make money or other benefits to be paid by fraternal benefit societies exempt property. The section is as follows:

“No money or other benefit, charity or relief or aid to be paid, provided or rendered by any such society shall be liable to attachment, garnishment, or other process, or be seized, taken or appropriated or applied by any legal or equitable process or operation of iaw to pay any debt or liability of a member or beneficiary or any other person who may have a right thereunder, either before or after payment.”

It will be noticed, however, that this section became a law 90 days after the adjournment of the Thirty-Third session of the Legislature. The adjournment was April 1, 1913. The law became effective about July 1, 1913.

The petition alleges that the beneficiary Shopsy Xanowsky died in April, 1913, which was before the funds sued for became exempt from administration. In fact, the rights of creditors to subject this benefit to the payment of debts became fixed upon the death of the member, Leon Xanowsky, which is alleged to have occurred about October 12, 1912. It clearly appears from the petition, in view of the date of the law, that this fund was not exempt at the time of the death of the joint beneficiary, Shopsy Xa-nowsky.

Our conclusion is that, because the petition shows that the interest of the beneficiary Shopsy Xanowsky was not legally subjected to the jurisdiction of the trial court, and because the petition further showed that Shop-sy Xanowsky was one of two joint beneficiaries in the contract sued upon, the judgment of the trial court based upon the defective petition is fundamental error of law which is apparent upon the face of the record.

We reverse the judgment and remand the cause.

On Motion for Rehearing.

We are asked by appellee to modify our judgment, reversing the judgment of the trial court and remanding the cause generally, so as to affirm that part of the judgment of the district court by which appellee recovered the interest acquired by assignment from Rosie Xanowsky.

In our original opinion we treated the contract of insurance as a joint contract, because the appellee, as well as the appellant, the jury, and the trial court had so treated it. ’ Since, however, appellee asks for a severance in his motion for rehearing, and since the contract on its face shows that it was the intention of all parties to the contract that it should be a severable contract (Keary v. Mutual Reserve Fund Life Ass’n [C. C.] 30 Fed. 359; Emmeluth v. Home Benefit, 122 N. Y. 130, 25 N. E. 234, 9 L. R. A. 704; 6 Ruling Case Law 858, § 246; Pioneer Co. v. Phoenix Co., 110 N. C. 176, 14 S. E. 731, 38 Am. St. Rep. 673; Coleman v. Insurance Co., 49 Ohio St. 310, 31 N. E. 279, 16 L. R. A. 174, 34 Am. St. Rep. 565; 1 Story on Cont. [5th Ed.] § 26; 1 Addison on Contracts [Morgan’s Ed.] 80, § 42, notes 1 and 2), we conclude that appellee’s motion should be granted (Rule 62a for Courts of Civil Appeals [149 S. W. x]; Nona Mills Co. v. Jackson, 159 S. W. 932; Johnson v. Conger, 166 S. W. 406).

The judgment of the trial court is reversed only as to that part affected by the fundamental error,. which is the interest claimed as an heir and by assignment from the other heirs of Shopsy Xanowsky. The judgment as to the interest acquired by assignment from Rosie Xanowsky is to be deemed' conclusive, and so taken in entering the final judgment to be rendered in the case upon trial of the other issues.

The judgment of the trial court is reversed in so far as it affects the interest claimed from Shopsy Xanowsky, and the cause remanded.
      <§a»For other oases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    BIGHAM v. STAMPS.
    (No. 7619.)
    (Court of Civil Appeals of Texas. Dallas.
    July 1, 1916.)
    Boundabibs &wkey;37(5) — Action—Evidence.
    In action to quiet title, the issue being a disputed boundary, evidence held to show valid agreement and location of boundary between defendant and a predecessor in title of plaintiff.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-189, 193; Dec. Dig. &wkey; 37(5).]
    Appeal from District Court, Freestone County; A. M. Blackman, Judge.
    Action by A. D. Stamps against E. V. Big-ham. From judgment for plaintiff, defendant appeals.
    Beversed and remanded.
    Dexter Hamilton, of Corsicana, for appellant.
   TALBOT, J.

This suit was instituted by the appellee against the appellant to recover a tract of land, a part of the D. Bratt survey situated in Freestone eounty. The petition is in the usual form of an action of trespass to try title, but the real question involved is one of disputed boundary. The defendant pleaded not guilty, the statutes of limitation of three, five, and ten years, and set up claim to only a part of the land in controversy. No evidence appears to have been offered in support of the pleas of limitation, and no question arises on this appeal in reference thereto. The case was tried by the court without the aid of a jury and judgment rendered in favor of the plaintiff. Defendant’s motion for a new trial being overruled, he perfected an appeal to this court, and the case was submitted on briefs for appellant; no briefs having been filed in this court by appellee. The court filed the following conclusions of fact and law:

“Conclusions of Fact.
“(1) In September of the year 1898, the defendant E. V. Bigham and one J. C. Wells owned in common, or jointly, a tract of land in Freestone county, Tex., aggregating 287 acres, of which the land in controversy in this suit was a part.
“(2) In November of 1898, the said defendant, E. Y. Bigham, and the said J. C. Wells, effected a partition of said tract of land, and the defendant Bigham erected a fence along the west line of the portion of the tract deeded to him by Wells, and asserted no title or claim to any portion of the tract west of this line until about the year 1910.
“(3) During the year 1910, one W. D. Anderson owned that portion of the 287-acre tract formerly owned by J. C. Wells. This he had verbally promised to sell to one Ben Pillans.
“(4) While Ben Pillans was occuping this tract of land as the tenant of Anderson, he (Pillans) and defendant Bigham undertook to agree upon a new division line between the two tracts belonging to Anderson and Bigham, respectively.
“(5) At the time of the alleged agreement as to the new division line, Pillans had no title or interest in any portion of the land in controversy. No definite or fixed line was ever agreed upon between Pillans and defendant Bigham. Anderson, the owner of the Wells tract of land, took no part either in person or by agent in the attempted establishment of'this new line, and afterwards sold the land and executed a deed conveying all the land in controversy herein.
“(6) Plaintiff, A. D. Stamps, deraigned title to all the land in controversy in this suit.
“(7) The defendant, E. V. Bigham, nor those under whom he claimed, have held the land in controversy for a sufficient length of time to mature title under any of the statutes of limitation.
“Conclusions of Law.
“1. This being a suit in trespass to try title, and the plaintiff having deraigned title to the land in controversy, and there being no limitation in behalf of the defendant, and no partition or contract for the establishment of a division line, other than that asserted by the plaintiff, it follows, as a matter of law, that the plaintiff should recover herein.”

The appellant contends, in substance, that the evidence adduced conclusively shows that the boundary line as claimed by him was agreed upon between him and the parties who owned the adjoining tract at the time of such agreement; that the trial court erred in finding, in the fifth paragraph of his conclusions of fact, that W. D. Anderson took no part in fixing the said boundary line, as the uncontroverted testimony showed he suggested and agreed to the running of the line by appellant and Pillans; and that the court erred in finding, in said fifth paragraph of his conclusions of fact, that, at the time of the agreement between appellant and Ben Pillans, Pillans had no title or interest in any portion of said land. These contentions of the appellant we believe to be well taken. It appears that J. O. Wells and appellant Bigham owned jointly lands purchased of W. A. Dean, situated in Navarro and Freestone counties. By deed dated September 17, 1898, these lands were partitioned; the western portion, consisting of a part of the Bishop survey and a part of the Bratt survey, being conveyed to the said Wells, and the balance, consisting of a part of the Bratt survey, being conveyed to the appellant. That part of the Bratt survey received by J. C. Wells in this partition was conveyed by Wells to J. G. I-Iagler, by deed dated October 20, 1898, and by J. O. Hagler to W. D. Anderson by deed dated March 16, 1901. In 1910, Ben Pillans entered into an agreement with W. D. Anderson to purchase the land, and Anderson executed and delivered to him a bond for title thereto dated November 25, 1910. Before the bond for title was executed, but evidently upon the faith that it would be, Pillans and appellant agreed that they would have the division line between appellant’s tract and the tract which he (Pillans) had agreed to buy from Anderson run out and the boundary line fixed and established.

Appellant testified without dispute that he and Wells, with whom he partitioned the land, never fixed the boundary line and never knew just where it was; that he and Pillans employed W. W. Stewart, a survey- or, to run the line; that this was done; that he (Bigham) put a division ience on the line as thus surveyed and established; that said fence was still there and had been continuously since its erection; that Pillans had moved on the land, had made improvements on it, and called it his home. Appellant further testified that at the time the survey was made to fix the boundary line he had a conversation with W. D. Anderson, as well as with Pillans; that he went to see Anderson to get him to go with him and have the surveyor run the line and Anderson told him to see Pillans; that he had sold to Pillans, and that Pillans was the one to have it surveyed; that he said, “Xou get Pillans and have it surveyed.” W. D. Anderson testified, in substance, that at the time the survey was made the land was not his, but belonged to Pillans, and that he was not asserting title to the land at the time the fence was put up. He testified that Pillans gave him a note for $75, which, while it was called a rent note in the bond for title, was in fact a note given for interest on the purchase money, and that Pil-lans kept the interest paid up; that he also believed Pillans paid him something when the sale was made. Anderson further testified that Pillans sold the land to Tom Platt and that at the request of both of them he made a deed therefor to Platt. This deed was dated April 24, 1914, and on that day Platt deeded the land to appellee Stamps. W. W. Stewart, the surveyor who surveyed the land, testified that he was employed in 1910 by E. V. Bigham and Ben Pillans to locate the boundary line between them. Big-ham and Pillans were both there when he ran the line. The distance in one of the calls had been scratched and another distance substituted for it. He ran the line through the shortest distance from the northeast corner of the Bratt survey to get the line between Bigham and Pillans, and it appeared the distance was shorter than the call on the south line. He then ran another distance, and Big-ham and Pillans agreed to divide that distance in proportion to the amount of land each was to have in the division, provided some papers Mr. Anderson had should be the same as the papers used in running the line. He testified that it seemed to him that those papers were a partition deed between Bigham and Wells, but he did not read them, .and that he supposed he had the partition deed to go by; that the question was whether or not Anderson’s deed had the same field notes as the partition deed; that it was a question of distance in both tracts; that in the Wells-Bigham partition Wells got about one-third of the land and Bigham two-thirds; that there was an excess, and he divided the excess in the same proportion as nearly as he could; - that, if the deed to Anderson showed the same field notes as the partition deed, then the line was to be where he fixed it; if not, then farther east about 192 varas. Pillans testified substantially as Stewart did with reference to the agreement between him and Bigham. The line agreed upon was to be the boundary line if Anderson’s deed contained the same field notes as the original partition deed.

It is quite clear that the survey made by appellant and Pillans was made for the purpose of fixing the boundary line. In making this survey it was found that there was an excess of land, and this excess was divided two-thirds to Bigham and one-third to Pil-lans. The line thus ascertained and fixed, which was marked by the surveyor, was the line upon which Bigham immediately erected a fence. That it was agreed that this lino should be the boundary line, unless it should appear that the field notes in the deed made by I-Iagler to Anderson should be at variance with the field notes in the Wells-Bigham partition deed, which partition deed was used by the surveyor Stewart in running the line, is shown beyond controversy. By this survey and the agreement of the parties the boundary line was definitely fixed. It also appears, without contradiction, as we understand the record, that the field notes contained in the Wells-Bigham partition deed as recorded in the deed records of Freestone county, and as set forth in the original partition deed itself, both of which were introduced in evidence, were the same as in Anderson’s deed; that there was no variance between the description of the Bratt plat contained in Anderson’s deed and the original partition deed. The terms of description in the original partition deed, in the deed from J. O. Wells to I-Iagler, in the deed from I-Iagler to Anderson, in the deed from Anderson to Platt, and in the deed from Platt to the plaintiff Stamps, were precisely the same, and the description of the land in all these instruments is set out in the identical terms of the original partition deed. The bond for title made by Anderson to Pillans also contains the same description. In this connection, it may be stated incidentally that appellant swore that the line was fixed and agreed upon without any condition or qualification whatever. The effect of the evidence also is to show, practically without contradiction, not only that Pillans agreed to the establishment of the boundary line as claimed by appellant, but that W. I>. Anderson agreed thereto or acquiesced therein. As hereinbe-fore shown, appellant testified that at the time the survey was made at the request of himself and Pillans he had a conversation with Anderson, and that Anderson told him to see Pillans and to get Pillans and have the line surveyed. After the fixing of the division line by appellant and Pillans as shown, he (Anderson) never made any claim, so far as is disclosed by the record, 'that it was unsatisfactory to him, or that it was so fixed without his knowledge or consent. On the contrary, this line was recognized or acquiesced in by all parties for two or three years. Pillans very shortly after the establishment of the line received a bond for title from Anderson, in accordance with their verbal agreement, lived upon the land, cultivated and improved it, with full knowledge that appellant, recognizing the division line as fixed, had placed his fence upon the line run by the surveyor Stewart. Under the facts shown by the record before us and the law applicable thereto, it must be held that the true division line is where it was established by the surveyor Stewart acting under the agreement of the parties. The legal title, it is true, was in Anderson at the time the division line was run and fixed by the survey- or Stewart, and even if it should be conceded, which is not done, that at that time Pillans had no such interest in the land as authorized him to make an agreement with appellant with respect to the establishment of the division line that would be binding on Anderson and those subsequently acquiring the land from him, still the evidence adduced shows, in our opinion, that Anderson was a party to the agreement under which said line was ascertained and fixed and that he and those holding under him are bound thereby.

We think the j'udgment of the court below should be reversed, and the cause remanded, and it is, accordingly, so ordered.

Reversed and remanded.
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