author: v HUFF, C. J.

text:
    TEXAS MIDLAND R. R. v. O’KELLEY et al.
    (No. 1293.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.
    Rehearing Denied May 8, 1918.)
    1. Carriers &wkey;47(l) — Agents — Authority to Contract to Furnish Cars.-
    A railroad station agent has authority to contract to furnish freight cars at a certain time and place.
    2. Carriers <&wkey;228(5) — Damage to Stock — Negligence of Shipper.
    Evidence held sufficient to sustain a finding that a shipper of hogs had no knowledge of a shortage in cars at the time he placed his hogs in railroad stock pens.
    3.. Carriers &wkey;129 — Contract to Furnish Cars — Discrimination.
    A carrier knowing of a car shortage cannot evade its obligation to furnish cars for hogs where it so contracted, where it did not notify the shipper of such shortage, to the shipper’s damage, by showing that it would have been a discrimination against other shippers.
    4. Appeal and Error &wkey;>932(l) — Matters Reviewable — Oral Findings.
    In the absence of a special finding on rendering a general judgment, it will not be presumed that the trial court allowed more than was asked for in the petition for certain items of damages, although the court orally stated that damages on such items were an amount in excess of that asked for.
    5. Appeal and Error <&wkey;926(7) — Qualification of Witnesses — Presumptions.
    Where no objection was made as to the qualification of witnesses to express opinions, it will be presumed that the court satisfied himself of their qualification, and that appellant was satisfied 'therewith.
    6. Appeal and Error &wkey;>931(9) — Findings —Requests—Re view.
    Since statute requires a party who desires specific findings of fact to make requests therefor when the case is tried before the court, in the absence of such requests, the appellate court will view the evidence in the light most favorable to the judgment.
    7. Appeal and .Error <&wkey;553(l) — Statement of Facts — Bills of Exceptions — Review.
    A bill of exception cannot be considered as a part of the statement of facts, nor as part of the judgment, nor as a finding of fact by the court upon which the judgment is based.
    Appeal from Hunt County Court; A. J. Gates, Judge.
    Action by S. E. O’Kelley and another against the Texas Midland Railroad.' Judgment for plaintiffs, and defendant
    appeals. Affirmed.
    Coke & Coke and S. W. Marshall, all of Dallas, and Dashiell, Terry & Brown, of Terrell, for appellant. Carpenter & Horton, of Greenville, for appellees.
   v HUFF, C. J.

This was an action brought by O’Kelley and Wolfe for damages to 115 head of hogs, occasioned by the negligence of the Texas Midland Railroad. It is alleged by the appellees that on the 9th day of January, 1917, they made a contract with the appellant company to ship 115 hogs from Quin-lan, Tex., over its road by the way of Green-ville and the St. Louis & Southwestern Railway Company to Ft. Worth, and that its duly-authorized agent agreed that a car would be-furnished at Quinlan for such service on January 11, 1917, following, and that appel-lees advised the agent they would have their hogs there on that day ready for shipment; that in pursuance to such agreement they placed their hogs in the pens of appellant on the morning of the 11th, but appellant failed to furnish a car at said time and not until January 17, 1917; on the third day following the placing of the hogs in the pens a seven-inch snow fell, and that until the car arrived the hogs were in open pens, exposed, etc.; that there were no troughs in the pens, and the hogs were mast fed and not used to dry feed. By virtue thereof and in routing them by Terrell and the Texas & Pacific Railway Company, instead of by Greenville, as directed, the appellee suffered damages, itemizing the damages, aggregating $565.45. The answer alleges want of authority in the ag'ent to make the contract, and alleges there was an unprecedented demand'for stock cars at that time and that it was impossible to furnish the cars on that day without discriminating against other-shippers, and alleged contributory negligence and driving the hogs to pen off the mast without first knowing that the car was ready, and in thereafter holding them in the pens, etc. The case was tried before the court without a jury, who rendered judgment for $270.30 damages. There are no findings of fact or conclusions of law in the record filed by the trial court.

The first assignment is that the court erred in not holding the contract void because the car could not have been furnished without discriminating against other shippers desiring to transport stock.

The local agent had authority to-make the contract for cars. McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164; Easton v. Dudley, 78 Tex. 236, 14 S. W. 583; Railway Co. v. Bishop, 154 S. W. 305, 310. If the testimony of the appellees is true, after delivering the hogs they asked the agent about the car every day, and he promised 'each time that he would have it there the-next day, and on one occasion after the hogs were in the pen he said there was a car shortage, but promised to have the car there the next morning, and on another occasion said that McKay told him not to trouble-him any more about the car. Written notice was given by appellee on the 15th to furnish the car, and on the 17th the car was furnished. The court, from the evidence, we think,. was justified in finding that the appellee had no notice of any car shortage until after the hogs were placed in the pen, and, when they received this notice it was coupled with a promise to have the car there the next morning. Written notice was then given, and the car arrived in less then two days. Before appellant agreed to furnish the car, if it desired to cast the onus on appellee, it was its fluty to notify them, of the shortage. Railway Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410; Railway Co. v. Word, 159 S. W. 375, 383. We do not think, if the appellant knew of the car shortage when it made the contract to furnish the ear on the 11th and thereby induced the shippers to deliver the hogs at the pens for shipment, that it can then evade its obligation by showing that owing to a shortage there would he discrimination against other shippers. Knowing the facts at the time it made the contracts it ought not to have made the agreement to furnish the car on that date, thereby inflicting loss by its own wrong.

Assignments 2 to 6, inclusive, are based on a bill of exception taken upon the trial to an oral statement by the trial judge that his judgment was based on certain items and the amount of the respective items. The judgment is a general one for $270.30. There is no finding of fact in the record showing upon what the judgment is founded. One ground or item, as shown by the bill, is for feed at Ft. Worth to prepare the hogs as to condition before placing them on the market. It is said-by appellant that this was unnecessary ; that the hogs would have sold as well without it on the day of arrival as they would without rest and feed. There was a difference of opinion expressed by the witnesses on that point. It is asserted that the amount allowed for shrinkage on account of delays, etc., was too much, as shown by the preponderance of the evidence, and that the item for decline in price based upon the poor appearance of the hogs on account of the treatment was too much. These items were based upon the opinion of witnesses, •and there was simply a difference of opinion. It is also asserted that certain feed bills allowed by the court, as shown by his oral statement, were too much; that is, more than the items so alleged and set out in the petition, and therefore fundamental error. The evidence upon the trial warranted the court in stating that the amount stated by him was actually paid for extra feed, etc. Brit in the absence of a special finding on rendering judgment it will not be presumed that the trial court allowed more than was asked for in the petition for those items. It is also asserted that’ appellee should have been charged with at least a portion of the injuries asserted. There is nothing in the record to show the court did not do so. In fact, he could have rendered judgment for a greater amount than he did under the evidence as shown by the record.

There appears to be a contention that the witnesses testifying as to the weight of the hogs, their appearance, and the effect upon their sale upon the market, by reason thereof, etc., were not qualified in such matters. There was no objection to their evidence, and, in the absence of such, we think that we should presume the court satisfied himself as to the qualification of the witnesses to give their judgment in such matters, and if appellant had not been satisfied as to their qualification it would have made the proper objection.

The statute requires a party who desires specific findings of fact to make the proper requests therefor when the case is tried before the court. In the absence of such it is the duty of the appellate court to view the evidence in the light most favorable to the judgment. The evidence will support the amount for which the judgment was rendered, and more.

A bill of exception cannot be considered as part of the statement of facts; neither should it be considered as part of the judgment or as a finding of fact by the court upon which the judgment is based. To say the least of it, this action in taking a bill of exception in order to bring up specific findings by the trial court in lieu of the findings required by the statute is a novel one in our practice, and we do not believe we are authorized to consider it as a finding of fact.

The judgment is affirmed.
      <g=sFor 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:
    CELAYA et al. v. CITY OF BROWNSVILLE.
    (No. 5907.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.
    Rehearing Denied May 1, 1918.)
    1. Appeal and Error <&wkey;1122(4)—Adoptino Undisputed Statement op Facts.
    As statement of undisputed facts made by counsel for appellant is unchallenged, and the facts therein stated are in accord with the record, the court on appeal may adopt the statement as its finding of fact.
    2. Municipal Corporations >&wkey;409—-Street Improvements—Assessment op Benefits— Reimbursement oe City.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1006-1017, empowering city to procure three-fourths of the cost of paving from abutting property owners and procure costs of paving that portion of street occupied by railway or street railway tracks from the companies and to procure the balance of the cost, if any, by other means, a city cannot assess property owners for benefits to reimburse the city for funds derived from the sale of bonds voted by the taxpayers for paving streets and expended by ‘ the city in paying for improvements made on such streets.
    3. Municipal Corporations <&wkey;428—Street Improvements—Special Assessments.
    Under Vemon’s Sayles’ Ann. Civ. St. 1914, arts. 1008-1017, relating to street improvements, a city is not authorized to assess benefits and levy special paving tax against the owners of property in one district for purpose of paying the paving contractor for paving streets in another district.
    4. Municipal Cobpobations <&wkey;449(2) — Stbeet Impbovements — Speoial Tax— “Tax.”
    Cities incorporated under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1006-1017, cannot levy a special tax for local improvements evidenced by paving certificates unless the ordinance levying the tax be consented to by two-thirds of the aldermen elected; the words “no tax,” as used in article 931, providing that no tax shall be levied unless by consent of two-thirds of aldermen elected, not being limited to tax for general revenue.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Tax.]
    5. Municipal' Cobpobations <&wkey;898 — P av-ino Cebtificates — Validity.
    Where all the improvements for which paving certificates were issued had been paid by the city with proceeds from bonds voted and issued therefor, the certificates were not legally issued, and never became valid obligations against the property owners.
    6. Appeal and EIbboe &wkey;>265(l) — Timely Exceptions and Objections.
    Where no exception was taken to findings and no request made for additional findings, the assignment complaining of findings will be overruled in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1989; providing that judge shall at the request of'either of the parties state in writing the facts found by him separately from the conclusions of law, which conclusion shall be filed with the clerk and constitute part of the record.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Consolidated suits between Augustine Ce-laya and others and the City of Brownsville. Btrom the judgment rendered, certain of the former appeal.
    Reversed.
    Harbert Davenport and Joseph K. Wells, both of Brownsville, for appellants. Graham, Jones & George, of Brownsville, for ap-pellee.
   SWEARINGEN, J.

This is an appeal from a judgment decreeing personal liability on paving certificates in favor of the city of Brownsville, appellee, against the following appellants: Mrs. H. M. King, James B. Wells, Daniel Yturria, as independent executor of the estate of F. Yturria, deceased, G. Ren-dan, Ysabel Garcia, M. A. Garcia, Mrs. F. Yturria, William Kelly, as independent executor of the estate of Robert Dalzell, deceased, Mrs. I. L. Cowen, L. B. Puente, J. A. Maltby, H. A. Maltby, Pablo Fernandez, Manuel Fernandez, Jose Fernandez, Aug. Celaya, Mrs. M. E. Vivier, P. J. Vivier, A. Bollaek, Mrs. V. Fernandez, H. J. Wallis, Maggie I. Wallis, Jose Celaya, Juana Ch. Fernandez, M. M. Waltzenbaeh, J. Wormser, B. G. Steg-man, Merchants’ National Bank, Mrs. M. Fernandez, Basilio Garcia, M. Besteiro, Mrs. F. Fernandez, A. P. Barreda, O. P. Barreda, and W. H. Mason.

The judgment foreclosed liens against specific property belonging to all the above appellants except Mrs. M. Waltzenbaeh, Mrs. I. L. Cowen, Mrs. V. Fernandez and James B. Wells. The cause was tried before the court without a jury.

On January 11, 1913, a number of the above-named appellantsi filed an original pe-' tition in suit No. 2415 against the appellee for the purpose, among others, of having the paving certificates against them and their property canceled.

On October 27, 1913, the city of Brownsville filed original petitions in independent suits against each of appellants who at that time were plaintiffs in the suit No. 2415.

On April 8, 1914, appellants filed their first amended original petition in cause No. 2415.

On November 20, 1916, the city of Brownsville filed its first amended original answer in said cause No. 2415.

On June 6, 1916, the court upon agreement of all parties entered an order consolidating all the pending suits involving the paving certificates with suit No. 2415 and ordered the consolidated suits to be carried upon the docket of the district court under the style of “Augustine Celaya et al. v. The City of Brownsville et al.,” and numbered 2415.

On November 20, 1916, appellants filed their first supplemental petition in the consolidated cause No. 2415. On. the same day, November 20, 1916, an original answer was filed in cause No. 2415 for such of the before-named appellants as had not appeared in any of the pleadings previously filed. On the same day, November 20, 1916, the city of Brownsville filed the first supplemental answer in cause No. 2415. The issues alleged by the city of Brownsville were: That it was a municipal corporation organized under the general laws of the state of Texas as a city of less than 10,000 inhabitants; that on August 2, 1910, in accordance with a majority vote, the qualified voters of the city accepted and adopted the power of assessing abutting property and the owners thereof, and street car companies and railroad companies and their property, for benefits received from street paving, as authorized by and contained in chapter 11, tit. 22, of the Revised Civil Statutes of 1911, which chapter thereupon became a part of the charter of the city of Brownsville; that on February 6, 1911, the city council of the city of Brownsville declared a necessity for the issuance and sale of bonds in an amount not to exceed 880,000, for the purpose of raising funds with which to pay the city’s portion of the expense of paving certain streets in a defined territory embraced in what was later designated as paving districts Nos.,1, 2, and 3. On the same day, February 6, 1911, the city, by ordinance, ordered the bond election. The election was held March 14, 1911, as ordered, and resulted in favor of the issuance of the bonds as shown by canvass of returns by the city coun-eil on March. 20,1911, when the council thereafter, on the same day, declared the result of the election in favor of the issuance of bonds.

On March 27, 1911, the city council passed a general street paving ordinance describing the form of bonds and interest coupons, fixing the amount and numbers of said bonds and providing that a tax be levied for interest and sinking fund as required by law (article 846).

On June 5, 1911, an ordinance was passed levying a tax for the year 1911 and succeeding years looking to the payment of interest and creating a sinking fund for the payment of the bonds.

On August 28, 1911, the city council entered into a written contract with the Oreosoted Wood Block Paving Company for the construction of 23,650 square yards of paving within the territory for the pavement of which the bonds were authorized on March 27,1911.

Thereafter, on October 23, 1911, the city council passed an ordinance making provision for apportionment of assessments against owners of property along and on the streets where the paving might thereafter be constructed in accordance with the contract executed August 28, 1911, and in accordance with the general paving ordinance of Marcia 27, 1911.

On March 11, 1912, the city council by ordinance created paving district No. 1, which ¿contained the 23,650 square yards described •in the executed contract, and in the same ordinance designated the style of pavement and apportioned the expense of the improvements between the city, the abutting property owners, and railways and street railways owning franchises on said streets.

Thereafter, on April 29, 1912, an ordinance was passed further providing for paving dis(trict No. 1 and apportioning the expense thereof.

On May 27, 1912, the city council directed that notices be given to all owners of abutting property to appear before the city council on June 17, 1912, to make known any objections they might desire to urge against the assessment of benefits against them.

On June 17, 1912, in pursuance of the notices issued, the city council met in regular session, and gave a hearing to all the owners of the abutting property, to be assessed for benefits received in district No. 1, containing the 23,650 square yards described in the paving contract, and after said hearing of objections by said property owners the council passed an ordinance apportioning the expense of the said improvements in district No. 1.

On October 3, 1912, the city council created paving district No. 2, which embraced a portion of the territory contained in the area designated in the first general street paving ordinance of March 27,191L This ordinance also made provision for the mode and manner of paving and for the apportionment of the expense of the improvement.

On November 7, 1912, the city council by ordinance corrected certain mistakes and irregularities incident to any paving undertaken, and also created paving district No. 3, which included a portion of the territory designated in the general street paving ordinance of March 27, 1911. The said ordinance passed November 7, 1912, also made further provision for paving districts Nos. 1 and 2, including material and apportionment of the expense.

On November 11, 1912, the city council by ordinance amended section 7 of the street paving ordinance of October 23, 1911, and at the same meeting, acting under the apprehension that some irregularities might have existed as to the paving of district No. 1, and to provide more fully for the contemplated improvements in said districts Nos. 2 and 3, a reassessment as to districts Nos. 1, 2, and 3, was declared, and due and legal notices ordered, published, and personal notices given in all respects as provided by said ordinance and said chapter 11 of a hearing for the benefit of all concerned in the improvements done and to be done in said paving districts Nos. 1, 2, and 3, said hearing to be had on December 14, 1912; and at the same meeting a resolution or ordinance was duly and legally passed adopting a form of assessment certificates as .to said paving district No. 1 which is itself in all things in accordance with the contract for paving said district and the laws of the state, the ordinance referring to the matter and the provisions of said chapter No. 11; and in said ordinance or resolution the mayor and city secretary were authorized and directed to issue said certificates.

In pursuance of the notices ordered published and sent as ordered in the meeting of the city council of date November 11, 1912, said notices as to the paving done and to be done as to paving districts Nos. 1, 2, and 3 were in all things fully complied with as required by said ordinance or resolution and as required by said chapter No. 11, and for the. length of time as required by said ordinance and said chapter 11; and thereafter, on December 14, 1912, at a meeting of the city council duly and legally held, a hearing of all persons and corporations interested, as a result of the paving done and .to be done in said paving districts Nos. 1, 2 and 3, in all respects as provided by law and the ordinances of said city of Brownsville bearing on said question, and as required by said chapter 11, was afforded, at which time and meeting the attorneys for a portion of the plaintiffs and a portion of the defendants herein appeared and announced that they desired a postponement or continuance of said hearing to December 18, 1912, which request was by the said city council granted, and a recess was ordered taken to December • 18, 1912, for the purpose of hearing such complaints, if any, as said plaintiffs and said defendants might desire to make; that on December 18, 1912, said city council, again being duly and legally in session, again offered to hear and determine such complaints, if any, as said plaintiffs and said defendants desired to make, when again said plaintiffs and said defendants, acting by and through their attorneys, who now appear of record for them in this cause, requested a further postponement until December 20, 1912, which request was again granted by said city council ; that on December 20th, which again being duly and legally in session for that purpose, again offered to hear and determine such complaints, if any, as said plaintiffs and said defendants saw fit to make, when and at which meeting said plaintiffs and said defendants, acting by and through the attorneys who now appear of record for them, and each of them, in this cause, informed said city council that, while the most of the said plaintiffs and said defendants did not intend to acquiesce in the proceedings that said council had had referring to the paving of said districts Nos. 1, 2, and 3, and the assessments against them, the said plaintiffs and said defendants, none of them, desired to offer or introduce any evidence before the council on the matter, but would take such steps as they felt their interest required in and before the proper court or courts; whereupon, and at said meeting on December 20, 1912, said city council, by vote in open meeting, declared the hearing closed as to said plaintiffs and said defendants, and proceeded to assess and apportion the expense for paving and improving said districts Nos. 1, 2, and 3, as per the reports of the city engineer, which have been embodied in said notices for the hearing of December 14, 1912, and being a resolution or ordinance duly and legally passed at a meeting duly and legally held December 23, 1912, ratifying and confirming what had already been done in open council meeting on December 20, 1912.

It was further alleged by the city of Brownsville that as a result of all the foregoing ordinances and contract and to secure the moneys therein specified the city of Brownsville did on the 31st day of December, 1912, and on the 21st day of March, 1913, cause to be executed and signed by its mayor and attested by its secretary all the certificates with coupons attached, herein sued upon. And the city further alleged that it was the owner of all the certificates sued upon; that the certificates were past due and unpaid. The exact amount due by each of the appellants was alleged. The city prayed for judgment against each of the appellants and for foreclosure of the special paving assessment liens.

The appellants generally and specially excepted to the sufficiency of the allegations made by the city of Brownsville.

The appellants in their pleadings admitted the passage of all the ordinances or resolutions set out in the pleadings of the city of Brownsville, but answered that the $80,-000 bonds authorized by the qualified voters of the city of Brownsville was sufficient to pay for all the streets within the boundaries of paving districts Nos. 1, 2, and 3, answered that when the paving contract was executed with the paving company no provision was made for assessing any portion of the cost of the paving against the owners of the property abutting on said streets, and further answered that prior to December 23,1912, the paving contractor finished paving the streets, and were paid in full for the work by the city out of the proceeds of the $80,000 bonds issued for that purpose or out of other funds of the city of Brownsville; that on that date, December 23, 1912, the city council passed the ordinance imposing the tax represented by the certificates sued upon, and alleged that this ordinance was not passed by the two-thirds of the aldermen elected as members of the city council, and was therefore void; that the paving ceruficates have never been issued, but are being held by the city; that the proceeds of the certificates, if sold, could not be paid for the improvement t'o appellant’s property, because, that had all been paid for before December 23, 1912, and that the proceeus would be diverted to other purposes. It was further alleged that the extended contract for paving of the additional 17,500 feet which was in paving district No. 2 was void, among other reasons, because by its terms the contractors were to receive in payment for work in district No. 2 the paving certificates against the owners of property in district No. 1, and because the said certificates were by said agreement to be discounted ten per cent, of their par-value.

Other issues were made by the pleadings, but have been waived.

As the statement of undisputed facts made by counsel for appellants is unchallenged by appellee, and the facts therein stated are in accord with the record, we adopt the statement as our findings of fact:

“(1) The city of Brownsville, for all purposes of this suit, was and is a municipal corporation, duly incorporated under the general laws of this state providing for the incorporation of cities of less than 10,000 inhabitants.
“(2) By an election duly and legally held on August 2, 1910, the city of Brownsville adopted, as part of its charter, the provisions of chapter 11, tit. 22, Revised Civil Statutes of Texas.
“(3) At an election duly and legally held on March 14, 1911, the qualified voters of the city of Brownsville authorized the city council of the city of Brownsville to issue bonds of said city in any amount not to exceed $SO.OOO, ‘for the purpose of improvement and pavement of Elizabeth street from Fourteenth street to and across Tenth street, and Tenth, Eleventh, Twelfth, and Thirteenth streets between Levee street and'Washington street, to the extent and as far as the amount of said bonds can or will pay for the improvement' and pavement of said street, and the balance remaining, if any, after paying for the improvement and pavement of other streets of the city of Brownsville, Tex., to be determined upon by the city council.’
“(4) In pursuance of the authority so granted,- the city council of the city of Brownsville did forthwith issue street paving bonds of the city of Brownsville of the par value of $80,000, for the purposes specified in the preceding paragraph, sold the same for the par value thereof, and deposited the proceeds in, the city treasury, all on or before August 28, 1911.
“(5) On August 28, 1911, the city council of the city of Brownsville entered into a written contract with the Creosoted Wood Block Paving Company for the construction of 23,650 square yards of paving, within the identical area within the city of Brownsville for the pavement and improvement of which said bonds were authorized and issued. The contract provided that the contractor should also construct, under the same terms, conditions, and stipulations, any additional pavement authorized and provided for by said city council while the said 23,650 yards expressly contracted for was in course of construction.
“(6) The 23,650 square yards of pavement provided for by the contr-act of August 28, 1911, was constructed by the Creosoted Wood Block Paving Company within the area designated in conformity with the terms of said contract, and it was accepted by the city of Brownsville, and paid for by it out of the proceeds of said bond issue. The final estimate was approved and so paid by the city council of said city'on July 1, 1912.
“(7) On October 23, 1911, the city council of the city of Brownsville adopted an ordinance ‘providing for the manner of determining, after notice, and by due process of law, the amount of special benefits to lots or parcels of abutting property, and to railroads and street railroads and to the owners thereof, upon any streets ordered to bo paved in the city of Brownsville, and to provide for the assessment of the cost of such improvements, or of a part thereof, against such owners and their property, and for the collection and improvement thereof.’ This was the first ordinance adopted by the city council to enable the city to exercise the charter powers derived from the adoption of the provisions of chapter 11_, tit. 22, Revised Civil Statutes, by the qualified voters of the city of Brownsville at the election of August 2, 1910. This ordinance provided detailed procedure for making of assessments, including notice to property owners by publication of copy of resolution of city council prescribing the time and place of hearing as to benefits, etc., in some newspaper in the city of Brownsville, once in each week for four successive weeks, and by mailing a copy of such resolution, duly authenticated, to each property owner at his last-known address. On March 18, 1912, the city council of the city of Brownsville, by a vote of seven ‘Ayes’ and no ‘Nays,’ adopted an ordinance creating ‘paving district Ño. 1,’ including the identical area described in the ordinance providing for the issuance of bonds, as stated in.paragraphs 2 and 3 above, and the identical area then being paved under and by virtue of the contract of August 28, 1911, which contract was, by said ordinance creating ‘paving district No. 1,’ expressly approved and confirmed. Said ordinance further ordered that one-third of the cost of said paving should be assessed against the abutting property (on either side of the street) and the owners thereof.
“(9) On April 29, 1912, the city council of the city of Brownsville passed an ordinance providing: ‘There shall be levied and assessed against all lots and fractional lots and the owners thereof, lying, and being on each side of Washington, Elizabeth and Levee streets, in said paving district No. 1, as above mentioned, the sum of four dollars and nine cents ($4.09) per front foot on each and every foot of ground fronting on any of said streets. There shall also be levied and assessed on all lots and fractional lots, and the owners thereof, fronting on side streets numbers ten (10), eleven (11), twelve (12), and thirteen (13) within said, paving district No. 1 the sum of two dollars and eighty-seven cents ($2.87) per front foot for each foot of lot or fractional part of lot fronting on each and all of said side stréets.’ This ordinance further provided that the city tax collecto.r should enter each of said assessments in a book to bo kept by him, and proceed to collect same, in installments provided for by said ordinance as same fell due. This ordinance further provided that the city tax collector should ‘give notice to the owner, his agent and attorney, of a day set for hearing for each owner, as provided by law, by advertisement at least three times in the.official organ of the city of Brownsville, same to be a newspaper published in said City, the first publication thereof to be made at least ten days before the day set for such hearing, and in addition thereto he shall issue personal notices to the owners of such property, their agents or attorneys, for at least ten .days before the date of such hearing by placing same in the postoffice at Brownsville, Texas, properly addressed to such owner, Ms agent or attorney, at their last known address, notifying him of the date for such hearing, and after the expiration of said period of notice and hearing said collector shall levy upon any property in said' Paving District Number One, on which assessments and interest have not been paid, as will be sufficient to pay the same.’ This ordinance also expressly repealed ‘all ordinances and parts of ordinances in conflict therewith.’
“(10) On May 27, 1912; the city council of the city of Brownsville directed the city attorney to publish a notice in the official organ of the city to property owners living in paving-district No. One (1) to come and appear before the city council on the 17th day of June, 1912, at 10 a. m. to show cause, should any they have, why their property abutting on the streets of said paving district should not be assessed one-third of cost of paving’ said district.
“(11) On June 17, 1912, the city council of the city of Brownsville, after reciting publication of notice of hearing ‘to the owners of property in paving district No. 1 of said city, citing the owners of property to appear before said meeting for the purpose of raising such objection as they might have to the assessment against them and their said property of a share of the cost of such paving,’ in three consecutive issues of the Brownsville Weekly Herald, the official organ of the city of Brownsville, on the 1st, 8th and 15th days of June, respectively, and after reciting that the city secretary had on the 4th day of "June, 1912, ‘executed and mailed to each of the owners of property abutting on said paving district, at his last-known address,’ a copy of the published notice, adopted a resolution which purported to assess against various persons named in said resolution, including all of appellants who are property owners on the streets abutting on said paving district No. 1, an amount equal to $4.09 per front foot of property abutting on Levee, Elizabeth and Washington streets, and $2.87 per front foot of property abutting on Tenth, Eleventh, Twelfth, and Thirteenth sfr66ts
“(12) On August 20, 1912, the city council of the city of Brownsville adopted a resolution extending the contract of August 28, 1911, between said city and the Creosoted Wood Block Paving Company to provide for 17,500 additional square yards of paving: Provided that said Creosoted Wood Block Paving Company ‘shall accept as payment for such additional pavement paving certificates of paving district No. 1 of said city, at the rate of 90 per cent, of their full face value, for each, estimate of work done.’
“(13) On October 3, 1912, the city council of the city of Brownsville by a record vote of three to two (seven members shown to be present) adopted an ordinance creating paving district No. 2 of the city of Brownsville, and ordering it paved with creosoted wood blocks in conformity with the resolution of the city council of the city of Brownsville of date August 20, 1912, extending the contract of August 28, 1911, and ordered that one-third of the cost of said paving be- assessed against abutting property and the owners thereof.
“(14) November 7, 1912, the city council of the city of Brownsville adopted an ordinance changing the boundaries of paving district No. 2, as created by the ordinance of October -3, 1912, dividing same into ‘paving district No. 2’ and ‘paving district No. 3.’
“(15) On November 7, 1912, the city council of the city of Brownsville passed an ordinance providing a mode of procedure for ‘reassessments’ to cure mistakes, irregularities, or errors in any proceedings with reference to any improvement undertaken or made under the provisions of chapter 11, tit. 22, Revised Stat-Ut©S of T6X9.S
“(16) On November 11, 1912, the'city council of the city of Brownsville adopted an amendment to section 7 of the general paving ordinance of October 23, 1911, and ordered notices to issue to all abutting property owners in paving districts Nos. 1, 2, and 3 to appear before said council on December 14, 1912, for the purpose of presenting protests against assessments to be made against property abutting on streets in said districts.
“(17) Notices of said meeting of the city council were published as prescribed by the ordinances of the city of Brownsville. At the meeting of said council on December 14, 1912, several property owners, including most of the appellants,, appeared to contest said assessments, and requested a postponement of the hearing until December 18, 1912, whereupon the council declared the hearing closed as to all property owners except those who had asked for postponement of hearing and adjourned to December 18, 1912.
“(18) On December 18, 1912, the city council of the city of Brownsville, without action adjourned until December 20, 1912, and on December 20, 1912, said council, by a record vote of three ‘Ayes’ and no ‘Nays,’ five members of the council being present, declared the hearing closed. No evidence was offered by any of the parties at either of said meetings of the council held on the 14th, 18th, and 20th days of December.
“ (19) On December 23, 1912, by a record vote of four aldermen to two (one alderman present, and not voting), the city council of the city of Brownsville adopted three separate ordinances identical in form, relating, respectively, to the assessments against the abutting property owners in paving districts Nos. 1, 2, and 3. These ordinances each recite that the assessments are made in compliance with the provisions of the general paving ordinance of October 23, 1911, and recite facts sufficient to show such compliance. These ordinances assessed against each property owner in said paving districts the amount per abutting front foot, shown by the engineer’s report to be one-third of the average cost per lineal foot of constructing such paving, under the terms of the contract of August 28, 1911, between the city of Brownsville and Creosoted Wood Block Paving Company ($4.09 per front foot on Elizabeth and parallel streets, $2.87 per front foot on the numbered cross streets, and proportionately for market square), declared the amount of each assessment to be a personal liability of the owner of the abutting property, and declared that each such assessment should constitute a valid first lien upon such tract or lot of land superior .to all other liens and claims except state, county, and municipal taxes.
“(20) The assessment ordinances of December 23, 1912, further provided that each assessment should be evidenced by negotiable certificates against the assessed property owners, drawn payable to the city of Bz-ownaville, or its order bearing interest at 6 per cent, per annum from January 1, 1913, until paid, and providing for the payment of 10 per cent, addition as attorney’s fees, in the event such certificates be not paid at maturity and placed in the hands of an attorney for collection.
“(21) In pursuance of said ordinances of December 23, 1912, mayor and city secretary of the city of Brownsville, on or about December 31, 1912, executed paving certificates against each abutting property owner (including each of appellants) in said three paving districts declaring said property owners to be indebted to the city of Brownsville in the amount of said assessment. Said paving certificates recite that same are executed by virtue of the ordinance and assessment of December 23, 1912, and declare the amount of the assessment, together with interest and attorney’s fees, to be a first and paramount lien upon the property described in said certificate. The certificates issued against property owners in paving district No. 1 recite that the paving for which the assessment was made had been completed and accepted by the city council July 1, 1912. The assessments are also declared by the certificates to be a personal liability of the owner of the property.
“(22) The said paving certificates against appellants were never ‘issued’ in the sense of being delivered ¡¡|y the city of Brownsville to any person, but were retained by the officers of said city, and are sued on in this case by said city of Brownsville.
“(23) At the time of the execution of said certificates (on or about December 31, 1912) the paving in paving district No. 2, had not been completed, accepted, or paid for by the city of Brownsville. Thereafter, on January 6, 1913, a portion of said paving in paving district No. 2 was accepted by the city’council as completed. On May 13, 1912, after the institution of this suit, the contract between the city of Brownsville and the Creosoted Wood Block Paving Company for the construction of paving in paving disti’icts Nos. 2 and 3 was canceled, and an agreed settlement was had between said city and said Creosoted Wood Block Paving Company as to payment for the completed portion of said paving, and the amount of the payment so agreed upon has-since been made by said city to said Creosoted Wood Block Company.”'

The first assignment ■ contends that the court erred in rendering judgment against the appellants, and in support thereof six propositions are submitted which seem to us to very clearly and correctly dispose of the question presented by the assignment. The first of these propositions is:

“The city council of the city of Brownsville was wholly without authority to levy an assessment against the owners of property abutting on streets within paving district No. 1 of the city of Brownsville, to be used, not to pay for the pavement and improvement of said streets, but to reimburse said city for one-third of the cost of pavement and improvement of said streets, already completed, accepted by said city, and paid for by it, out of a fund lawfully provided for that purpose.”

It was alleged by the city of Brownsville that the proceeds from the SSO.OOO bonds was to he used for the payment of the portion of the improvements that was not assessed against the owners of the abutting property, the railway company and the street railway company. The benefits assessed against the owners of the abutting property in paving districts Nos. 1 and 2 was the equivalent of two-thirds of the entire cost for the improvements directly in front of the property benefited. The street railway company’s benefit was assessed at the cost of paving that portion of the street on which its tracks were placed for a width of nine feet. The balance of the cost of the improvements in said districts 1 and 2 was to be borne by the city. Neither the evidence nor the pleadings clearly show the actual amount left for the city to pay out of funds procured by the bonds.

Under the law expressed in chapter 11, tit. 22, of Vernon’s Sayles’ Texas Civil Statutes, the city was empowered to procure three-fourths of the cost of the paving from abutting property owners, and was authorized to procure the costs of paving that portion of the street occupied by railway or street railway tracks from the said companies, provided after a fair hearing it was found that the benefits were at least equal to the assessment; and the city was by the same law authorized to procure the balance of the cost, if any, by other means.

The ordinance of .December 23, 1912, was the one by which the city imposed the assessment tax for benefits against these appellants. At that time all the improvements in districts Nos. 1 and 2 had been paid for in full by the city. It therefore appears that the funds sought to be procured by assessing benefits was not to be raised for the purpose of paying for the improvements for which the assessment was made. We believe it is well settled that the only purpose for which benefits can be assessed under chapter 11, tit. 22, is the sole purpose of paying for the improvements that created the benefit. City of Austin v. Nalle, 102 Tex. 536, 120 S. W. 996. As these improvements had all been paid for by the city before the assessment, the only purpose of the assessment of benefits was to reimburse the city for funds derived from the sale of the bonds voted by the taxpayers for paving these streets and expended by it in payment for the improvements made. The law did not authorize the assessment for the purpose of reimbursement to the city of the expenditure of the bond money. City of Dallas v. Ellison, 10 Tex. Civ. App. 28, 30 S. W. 1128; Alford v. City of Dallas, 35 S. W. 819; City of Sherman v. Williams, 84 Tex. 421, 19 S. W. 606, 31 Am. St. Rep. 66.

From the terms of the extension contract made August 20; 1912, it is evident that the city assessed the benefit and levied the special paving tax against the owners of property in district No. 1 on December 23, 1912, for the purpose of paying the pav•ing contractor for paving streets in district No. 2. This the city was not authorized by the statute to do. Vernon’s Sayles’ R. C. S. arts. 1008 to 1017; City of Sherman v. Williams, 84 Tex. 421, 19 S. W. 606, 31 Am. St. Rep. 606; Moore v. Coffman, 189 S. W. 94.

Appellee for answer to the foregoing propositions relies upon the conclusion expressed in its brief on page 8:

“That it was the purpose of the Legislature to permit the cjty to compel the benefited owner to pay in part what it had cost the city to make tho improvement.”

We think not. The statute only authorizes the city to compel the benefited owner to pay the assessed value of his benefit for the improvement itself, but does not authorize the city to procure funds with which to pay for paving streets in front of the property of other owners, located in another paving district.

The second proposition under the first assignment is:

“The city ordinances of the city of Brownsville of December 23, 1912, which purport to make the assessments against appellants and their property, and to authorize the issuance of the certificates sued on by appellee, are wholly inoperative and void, and of no force and effect, for the reason that same were not adopted by vote of two-thirds of all the aldermen elected to said council, as is required by law to pass any ordinance or resolution which levies a tax.”

The ordinance of December 23, 1912, is the act which levied the special assessment tax for local improvements evidenced by the paving certificates later executed, made the basis of this suit. By the terms of the statute the mayor and eight aldermen constituted the full board, nine members in all. Vernon’s Sayles’ Rev. Tex. Civ. St. § 784; 2 Dillon, Mun. Corp. (5th Ed.) § 513, p. 837, note 2. The city council can transact the city’s business generally with a quorum, which is, for such purposes, a majority of the members elected; but in order to impose a tax the quorum required is two-thirds of the full board, which is six members. Rev. Tex. Civ. St. § 784. In order for the city council to levy a tax, the ordinance making the levy must be passed by two-thirds of the aldermen elected. Rev. Tex. Civ. St. art. 931. The ordinance of December 23, 1912, which levied the tax herein contested, received the votes of only four aldermen. Four is not two-thirds of eight; therefore the levy was not valid. Appellee very plausibly insists that article 931, supra, relates only to taxation for general revenue, and does not apply to the tax for special assessments for local improvements, which is merely the assessment of benefits actually created. In support of this contention it is pointed out that the article 931 occurs under chapter 6 of the title 22, treating of the subject taxation; while the power to levy taxes for local benefits is grant ed cities in chapter 11 oí the title 22. The contention is that each chapter is complete in itself, and the limitation imposed in one chapter cannot be applied to the exercise of any power conferred in another chapter. It is further argued that the words “no taxes,” used in article 931, are used in the sense given to the word “taxes” in the Texas Constitution, as interpreted by the following decisions: Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770; City of Austin v. Nalle, 102 Tex. 536, 120 S. W. 996; Storrie v. Houston City St. Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 L. R. A. 716; Storrie v. Woessner, 47 S. W. 837; Id., 51 S. W. 1132; Allen v. Galveston, 51 Tex. 302; Austin v. G., C. & S. F. Ry. Co., 45 Tex. 234; Roundtree v. Galveston, 42 Tex. 613; Taylor v. Boyd, 63 Tex. 533; 1 Desty, Taxation, § 4, pp. 5-7. While the contention of counsel for appellee deserves great consideration and is quite persuasive, we think the more accurate conclusion is that each chapter of the title 22, delegating municipal powers to cities, is not •distinct and complete, and the Legislature never so intended ■ them. For instance, the first chapter provides for a city council by which the city power is to be exercised. This applies to the exercise of each and every pow•er to be exercised by the city authorized by each chapter under the title. If there were any doubt about any other of the chapters in title 22 being incomplete in itself, there can be none as to chapter 11, for the closing article of chapter 11, § 1017, expressly states that the power given in chapter 11 is cumulative of or in addition to other existing laws pertaining to cities. “This chapter shall not repeal any law, general or special, already in existence, pertaining to the making of ■such improvements, but the provisions of this chapter, and of resolutions or ordinances passed pursuant thereto shall be cumulative of, and in addition to, such existing laws.”

Neither do we think the words “no taxes,” as used in article 931, are limited to mean taxes for general revenue, the meaning in which the word “taxes” is used in the Constitution. It is, of course, true that the funds procured by special assessments for local improvements are not funds raised for revenue for general purposes. However, “such special assessments are an exercise of the taxing power” of the municipal corporation. 4 Dillon, Mun. Corp. (5th Ed.) § 1430, p. 2491, note 1. This taxing power cannot be exercised at all by the city unless expressly authorized by the Legislature. In this case the power, with limitations, is given in chapter 11, tit. 22. The taxing power cannot be exercised except in the manner provided by the statute. Chapter 11 does not expressly say that the cities accepting it can exercise the taxing power therein granted in a mode different from that required for exercising any other taxing power. On the other hand, article 1017 of that chapter expressly provides that the provisions of other chapters of that title are not repealed, but are cumulative of or in addition to the powers delegated by chapter 11. The Legislature on March 15, 1875 (Acts 14th Leg. [2d Sess.] c. 100), passed the act incorporating cities and towns, in which act the chapter on taxation and the chapter empowering assessments for benefits for street paving were expressed practically in the same language now used in chapters 6 and 10 of title 22. In 1875 the Legislature expressly stated in section 127 that the special ¿ssessment “shall be imposed, levied and assessed as taxes.” In section 128 the special assessment is called, “said tax” as many as six times. In section 129 of the same act of 1875 the special assessment for streets is called an “assessment of taxes.” From this it seems most probable that the Legislature of 1875 understood the word “taxes,” as used in the act for incorporating cities and towns, to mean special assessments, and did not use the word “taxes”- in the restricted meaning of taxes for general revenue.

Again, in 1909, when the Legislature passed the act which in 1911 became incorporated in the title 22 as chapter 11, it refers to these special assessments as “taxes.” See Y. S. R. T. C. St. art. 1010.

We believe the correct interpretation of title 22 is that cities incorporated thereunder cannot exercise any taxing power authorized in any chapter of title 22 unless the ordinance levying the tax be consented to by two-thirds of the aldermen elected. The decisions defining the meaning of “taxes” as used in the Constitution bear no analogy to the question here discussed. French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Cole v. Forto, 155 S. W. 350. The ordinance of December 23, 1912, which levied the tax, received only four votes. It needed five; therefore it is void..

We omit discussion of the remaining four propositions submitted under this first assignment, which we sustain for the reasons given in our consideration of the first two propositions.

The foregoing reasons also dispose of the second and third assignments, which are sustained.

Under the fourth assignment, which urges that the court erred in overruling appellant’s second special exception to the sufficiency of appellee’s allegations, the following proposition is submitted:

“The paving certificates described by appel-lee in its first amended original answer and cross-actions, and which are made the basis of such cross-action, were never legally ‘issued’ by the city of Brownsville, in the sense of having been delivered to a third party for a legal consideration, as is fully shown by the allegations of said answer and cross-actions, and could not become the basis of any claim or demand, as against appellants,'1 or their property, until so issued.”

It was alleged by the appellee that all improvements bad been paid by the city of Brownsville with proceeds from bonds voted and issued therefor, and that the city is the owner of the paving certificates, which were never sold or hypothecated.

■ We think the certificates were never legally issued, and therefore never became valid obligations against the appellants. 2 Dillon, Munic. Corp. (5th Ed.) § 902, p. 1413, note 3; Brownell v. Greenwich, 114 N. Y. 518, 22 N. E. 24, 4 L. R. A. 685; Hidalgo County Drainage Dist. v. Davidson, 102 Tex. 539, 120 S. W. 849; Vernon’s Sayles’ R. C. St. art. 1011.

The fourth assignment is sustained.

The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, and thirtieth assignments complain of the court’s findings of fact and conclusions of law. No exception was taken to these findings, and no request was made for additional findings. Article 1989, Vernon’s Sayles’ Civil Statutes; I. &. G. N. Ry. Co. v. Diaz, 156 S. W. 907; Tenzler v. Tyrrell, 32 Tex. Civ. App. 443, 75 S. W. 57; Bank of Ft. Worth v. Stout, 61 Tex. 567; T. & F. S. Ry. Co. v. Hartford Ins. Co., 44 S. W. 533; Rule 27 for Courts of Civil Appeals (142 S. W. xii); Rule 62a for Courts of Civil Appeals (149 S. W. x); Alcott v. Spencer Optical Mfg. Co., 31 S. W. 833. The assignments 5 to 12 and 14 to 30, inclusive, are overruled.

The thirteenth assignment complains of error in the conclusion of law by the trial court, because two-thirds of the members of the city council present did not vote in favor of the resolution declaring the improvements proposed for district No. 2 for the public interest. The evidence shows seven aldermen were present and five of the seven voted in favor of the resolution. Counsel for appel-lee called special attention to this fact in their brief on page 11. We examined the statement of facts, and interpret the record in accord-with appellee. The thirteenth assignment is overruled.

Because of the errors presented in the first, second, third, and fourth assignments, all of which we have sustained, the judgment of the trial court is reversed in so far as it affects appellants or their property, and here rendered against the appellee, the city of Brownsville, and in favor of appellants. In so far as the judgment affects parties before the trial court who did not appeal and from which part of the judgment no appeal was taken, the judgment of the trial court is not disturbed.
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author: LANE, J.

text:
    BARKLEY et al. v. GIBBS et al.
    (No. 7465.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 26, 1918.
    Rehearing Denied March 28, 1918.)
    1. Appeal and Ebrob <&wkey;759 — Assignments of Ebrob — Foem.
    Where an assignment of error is not a substantial copy of any of the paragraphs of appellant’s motion for a new trial, it will not be considered in view of Vernon’s Sayles’ Ann. Civ. St. 1914; art. 1612, providing that the assignments in the motion for new trial shall constitute the assignments of error on appeal, and rule 29 of the Court of Civil Appeals (142 S. W. xii), requiring appellant to file a brief of the points relied on in accordance with and confined to the distinct specifications of error which are to be copied in the brief, and that each assignment not so copied shall be regarded as abandoned.
    2. Appeal and Ebrob <&wkey;719(l) — Fundamental Ebeor.
    No action of the court can be said to be fundamental error if to discover the alleged error an examination of the entire statement of facts must be made.
    3. Appeal and Error <&wkey;>1064(l) — Review— Harmless Error.
    In trespass to try title, an instruction that one claiming under the five-year statute of limitations must have had adverse possession for “at least” five years after the cause of action accrued, if erroneous, in that it failed to state that such adverse possession should have been for more” than five years, was harmless.
    Appeal from District Court, Madison County ; S. W. Dean, Judge.
    Trespass to try title by R. W. Barkley and others against Mrs. Sallie E. Gibbs and others. Judgment for defendant Sallie E. Gibbs, and plaintiffs appeal.
    Affirmed.
    R. J. Randolph and E. A. Berry, both of Madisonville, for appellants. Dean, Humphrey & Powell, of Huntsville, for appellees.
   LANE, J.

This is an action in trespass to try title brought by appellants R. W. Barkley, R. J. Randolph, Mabel Durst Hail and husband, J. P. Hail, Laura Kittrell and husband, W. H. Kittrell, and H. Durst, Jr., against Mrs. Sallie E. Gibbs and Margaret S. Seales, to recover 216 acres of land situated partly in each of the two counties of Leon and Madison in the state of Texas. Mrs. Susie L. Brooks and husband, S. Y. Brooks, were made parties defendant by Mrs. Gibbs on their warranty. Judgment was in favor of Mrs. Sallie E. Gibbs against all plaintiffs.

Plaintiffs’ petition was in the ordinary form of petitions of trespass to try title. Defendant Margaret Scales filed a disclaimer and judgment was entered thereon, and therefore no further mention of her will be made in this opinion. Defendant Mrs. Sallie Gibbs answered by plea of general denial and plea of not guilty, and by special plea she averred that she held a fee-simple title to the land involved in the suit by mesne conveyances from the common source of title, to wit, P. W. Kittrell, down to herself. She specially alleged that she purchased the land from Mrs. 'Susie L. Brooks and husband, S. X. Brooks, and had said parties made parties defendant, and prayed that in the event judgment should be against her for the land she have judgment over against Broo'ks and wife for her damages. She also pleaded the statute of limitation of five and ten years in bar of plaintiffs’ cause of action. Brooks: and wife, as a defense to Mrs. Gibbs’ alternative suit against them, pleaded a general denial. For further answer they adopted the answer of Mrs. Gibbs as against all the plaintiffs.

The cause was submitted upon the main charge of the court and special charge No.. 1 requested by appellants, as follows:

“Gentlemen of the Jury: I submit this case to you on special issues, but in order that you may understand these special issues, I give you the following instructions:
“By the term ‘preponderance of the evidence is meant the greater weight and degree of credible evidence.
“By the term ‘peaceable possession’ is meant such possession as is continuous and not interrupted by adverse suit to recover the estate.
“By ‘adverse possession’ is meant an actual and visible appropriation of the land,, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.
“Possession can be maintained by the claimant or by another or others holding the same for him, and will extend to the boundaries of the entire tract claimed, although only 'a part may be actually reduced to possession.
“Bearing in mind the foregoing instructions, I submit to you the following special issues of fact:
“Special Issue No. 1. Do you find from a preponderance of the evidence that the defendant Mrs. Sallie E. Gibbs, and those under whom she claims and whose estate she holds, has had peaceable and adverse possession of the land in controversy, cultivating’, Using, and enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered for at least five years after the plaintiffs’ cause of action accrued and before the filing of this suit, which was on January 22, 1916, and you are instructed in this connection that plaintiffs’ cause of action accrued upon the death of Mary E. Barkley and not before, and you are instructed that the defendant Mrs. Sallie E. Gibbs, and the defendants Mrs. Susie L. Brooks and her husband, S. Y. Brooks, under the partition offered in evidence, could claim under the deed offered in evidence to M. H. Ford, the ancestor of the defendant Susie L. Brooks.
“Special Issue No. 2. Do you find from a preponderance of the evidence that the defendant Mrs. Sallie E. Gibbs, and those under whom she claims and whose estate she has, has had peaceable and adverse possession of the lands and premises in controversy, claiming the same under a deed or deeds for at least ten years after plaintiffs’ cause of action accrued, which I have instructed you was upon the death of Mary E. Barkley, and before the filing of this suit.
“Gentlemen of the Jury: At the request of plaintiffs you are instructed that the defense of limitation is an affirmative defense and the burden is on the defendants to prove such defense by a preponderance of the evidence and unless they have done so in this case you will find against them in their plea of limitation.”

The jury answered both questions propounded by the charge in the affirmative. The trial court thereupon rendered judgment for the defendants against plaintiffs, which judgment contains, among other things, the following recital:

“The court after due consideration of the pleadings, the evidence, and the argument of counsel, as well as the verdict of the jury upon such special issues, finds that the law and the facts, are with the defendants. It is therefore considered by the court that the plaintiffs take nothing by their suit, and that the defendants recover.of and from the plaintiffs all costs incurred in this cause, and that defendants have their execution.”

From this judgment all of the plaintiffs have appealed.

Assignments Nos. 1, 2, 3, and 4, in appellants’ brief, are not literal copies, nor even substantial copies, of any of the paragraphs of appellants’ motion for a new trial in the record, and cannot therefore be considered. By article 1612, Vernon’s Sayles’ Civil Statutes 1914, it is provided that the assignments in the motion for new trial shall constitute the assignments of error on appeal. It is provided by rule 29 for the Courts of Civil Appeals (142 S. W. xii) that the appellant, in order to properly prepare a case for submission on appeal, shall have filed a brief of the points relied upon in accordance with and confined to the distinct specifications of error, which are to be copied in the brief, and each assignment not so copied shall be regarded as abandoned.

Several of the Courts of Civil Appeals of this state have held that since by article 1612, Vernon’s Sayles’ Civil Statutes 1914, the grounds assigned in the motion for new trial are made to constitute the assignments of error, the assignments of error in the brief must be true copies of the corresponding paragraphs of the motion for new trial, and not reconstructed assignments. Freeman v. Railway Co., 182 S. W. 1158; Shipp v. Cartwright, 182 S. W. 70; Mansfield v. Mansfield, 198 S. W. 169; Wentzell v. Chester, 189 S. W. 304; Holloman v. Black, 188 S. W. 973; Smith v. Bogle, 165 S. W. 35; Overton v. K. of P., 163 S. W. 1053; Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Coons v. Lain, 168 S. W. 981.

In Mansfield v. Mansfield, cited above, it is said:

“A comparison of the assignments with the paragraphs of the motion discloses that no effort was made to copy such paragraphs. It is apparent that the brief was written upon the theory that it was permissible to rewrite the assignments. Rule 29 (142 S. W. xiii) for the Courts of Civil Appeals requires that the assignments shall be copied in the brief, evidently in order to prevent controversies with regard to whether the assignments in the brief correctly present the ruling complained of in the assignments filed in the trial court. To consider the assignments in appellant’s brief would amount to an abrogation of that part of rule 29 above referred to. The assignments will not be considered.”

Tbe above quotation is strictly applicable to tbe assignments in tbe brief of appellants in tbe present ease. Tbis court has been very liberal in considering assignments found in tbe brief when they were substantial copies of those contained in the record, but we cannot permit new assignments to he formulated and carried into the brief without setting at naught rule 29 for the Courts of Civil Appeals (142 S. W. xii). We therefore decline to consider assignments 1 to 4, inclusive.

Assignment 6 is as follows:

“The court committed fundamental error in holding there was an issue of limitation in the case,' and in submitting that issue to the jury, as the uncontradicted evidence established that all of the land actually inclosed and cultivated by Williams was embraced by his own claim and by his own field notes, and the uncontradicted evidence shows that he claimed to the extent of' his field notes embracing his own land, as fully set forth in paragraph No. 5 of appellant’s motion for a new trial.”

This assignment is not a copy of any paragraph in the motion for new trial, and unless it presents fundamental error it cannot he considered. No action of the court can he said to he fundamental error if to discover the alleged error an examination of the entire statement of facts must be made. Riggs v. Baleman, 198 S. W. 813; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85. It is apparent from the assignment that before this court can determine whether or not the trial court erred in assuming that the evidence raised the issues of limitation it must examine the entire statement of facts. There is no fundamental error presented by the assignment and we therefore decline to consider the same.

By the eighth assignment it is, in substance, insisted that the court committed fundamental error in failing to instruct the jury on the rule of law applicable to encroachments of an adjoining landowner, as furnishing notice to constitute adverse possession of the whole of the tract upon which an encroachment is made. This assignment is not a copy of any paragraph of the motion for new trial, nor does it present fundamental error. Without examining the statement of facts we are unable to say that the facts proven call for a charge, the lack of which is complained of. If appellant desired the court to charge on the matter of encroachment, as suggested in the assignment, he should have presented to the trial court a special charge presenting that matter. This he failed to do. The assignment is overruled.

The seventh assignment is that:

“The court committed fundamental error in refusing appellants’ special charge No. 2 by holding that the deed to M. H. Eord was sufficient to constitute a repudiation of the legal title by those in possession holding or claiming the life estate, and that the deed was sufficient to put the appellants on notice, thus making the said deed evidence of adverse possession; and reference is here made to appellants’ bill of exception No. 2 for court’s reasons in refusing said special charge.”

This assignment is not a copy of any paragraph of the motion for new trial, but is presented as fundamental error only. No fundamental error is presented by the assignment. It will therefore not be considered.

The eighth assignment is as follows:

“The court committed fundamental error in its charge to the jury contained in special issue No. 1 by instructing the jury that appellants’ cause of action accrued upon the death of Mary B. Barkley and not before.”

This assignment is not a copy of any paragraph of the motion for new trial, nor does it present fundamental error. It will therefore not he considered.

By the ninth assignment it is insisted that the court committed fundamental error in instructing the jury that one claiming title under the statute of limitation of five years must have had adverse possession, etc., under a deed or deeds duly registered, etc., for at least five years after appellants’ cause of action accrued and before the filing of their suit. The contention is that the instruction should have been that such adverse possession should have been for more than five years, instead of for at least five years. This complaint is hypercritical and too technical to require consideration. Certainly no harm could have probably resulted to appellants by reason of this technical error.

For the reasons hereinbefore given, we hold that the tenth and last assignment presents no fundamental error as contended by appellants. We therefore overrule the same.

The judgment of the trial court is affirmed.

Affirmed.
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author: LANE, J.* PLEASANTS, C. J.

text:
    WESTCHESTER FIRE INS. CO. v. THOMAS GOGGAN & BRO.
    (No. 7519.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 7, 1918.
    Rehearing Denied March 28, 1918.)
    1. Exemptions <&wkey;65 — Purchase Money Liens.
    While a piano purchased on installments is exempt from execution for the general debts of the purchaser, it is not exempt from sale to satisfy the unpaid installments secured by a mortgage.
    2. Exemptions i&wkey;93 — Waiver — Effect on Garnishee.
    Where defendant purchased piano on installments, and to.ok out insurance thereon in his own name, and the piano was destroyed by fire, and he and the seller’s agent notified the insurer’s agent that a part of the insurance proceeds was to be paid to the seller, the purchaser waived his right to an exemption of such proceeds, and the insurer, when it paid the full amount to the purchaser, after being garnished by the seller, could not avail itself of the plea of such exemption.
    3. Exemptions &wkey;>57 — Insurance Proceeds.
    A chattel mortgage gives the mortgagee no lien upon proceeds of a fire insurance policy upon the property, where the policy is taken by the debtor for his own protection.

      4. Appeal and Error <&wkey;>1054(l) — Harmless ERROR.
    Admitting immaterial and irrelevant evidence was harmless error, where the case was tried before the court without a jury.
    5. Exemptions ¡&wkey;148 — Evidence—Admissibility.
    • In proceedings by seller to garnish proceeds of insurance policy on chattel sold, on the issue whether the debtor had waived exemption of such proceeds by notifying the insurance company to pay the plaintiff’s debt therefrom, a letter from the debtor to plaintiff, stating he had insured the chattel for plaintiff’s benefit, was admissible.
    6. Exemptions <&wkey;>148 — Evidence—Admissibility:
    In an action against an insurer of a piano as garnishee, the agent of the seller of the piano could testify that he went with the debtor to the insurance office when the debtor instructed the agent to pay part of the policy to the creditor, as bearing on waiver of exemption and notice to the insurance company thereof.
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Thomas Goggan & Bro. against W. M. Mills, wherein the Westchester Eire Insurance Company was garnished. Judgment for plaintiff against the garnishee, and the garnishee appeals.
    Affirmed.
    Geo. Q. McCracken, of Galveston, for appellant. E. Spencer Stubbs and James B. & Charles J. Stubbs, all of Galveston, for ap-pellee.
   LANE, J.*

Thomas Goggan & Bro. sold and delivered to one W. M. Mills' a certain piano in November, 1914, for which Mills owed them a balance of the purchase money of $170.60. To secure this balance a mortgage was given by Mills to Goggan & Bro. upon said piano. This mortgage was at once duly registered. On June 12, 1915, the appellant, Westchester Eire Insurance Company, executed and delivered to the said W. M. Mills a policy of fire insurance for $200 upon the piano in question and for $500 upon other household furniture which was exempt to him as the head of a family. There whs no provision in the policy for the payment of any part of the insurance to Goggan & Bro. as their interest might appear or otherwise.

On the 12th day of August, 1915, the piano and other property covered by said insurance policy was destroyed by fire. On the 20th day of August, 1915, an agent of Goggan & Bro. had an agreement with W. M. Mills that $170.60 of the insurance upon the piano should be paid by the insurance company to Goggan & Bro. On said last-named date Mills, in company with said agent of Goggan & Bro., notified John P. Smith, local agent of the insurance company, at San Augustine, Tex., who issued and delivered the policy to Mills, and who thereafter delivered to him the company’s check for $650' in settlement of the loss, that Mills had agreed with said agent of Goggan & Bro. that $170.60 of said insurance money should be paid to Goggan & Bro. by said insurance company. Smith refused to recognize said notice and informed the agent of Goggan & Bro. and Mills that he had no authority to pay Goggan & Bro. any sum, and that the matter would be handled through the general office of the company; that he had no authority to deduct any sum from any check which might be sent to him in settlement of the loss due under the policy, regardless of the order of Mills so to do. Thereafter, on the 24th day of August, 1915, Goggan & Bro. brought suit in the justice court of precinct No. 1 of Galveston county against W. M. Mills for said balance of $170.60, and for a foreclosure of their lien upon said piano, and at the same time procured the issuance of a writ of garnishment, which was duly served upon the Westchester Eire Insurance Company, directing them to answer and show for what amount, if any, it was indebted to Mills, or what effects of the said Mills it had in its possession, if any, etc. Judgment was rendered in favor of Goggan & Bro. against W. M. Mills' in the justice court on the 4th day of October, 1915, and was in force and unsatisfied after th.e writ of garnishment was served upon appellant insurance company, and at the time judgment was rendered in this cause.

On the 15th day of February, 1916, the insurance company answered in the garnishment suit in said justice court, saying:

“That on June 12, 1915, this garnishee issued to one Willie Mills, for the term of one year, its policy of insurance No. 16416, for the' sum of seven hundred dollars ($700.00), 'of which said sum $500.00 was to be applied to the household furniture, and $200.00 on the piano of the said Willie Mills; that the property of the said Willie Mills so insured by this garnishee was destroyed by fire on August 12, 1915; that at the time said writ of garnishment was served upon this garnishee the liability of this garnishee to the said Willie Mills by reason of the destruction of the property insured by this garnishee had not been established, for the reason that proofs of loss had not been completed, and an investigation as to the cause of the fire or the loss sustained by the said Willie Mills had not been completed, and that at that time it was not determined in what sum, if any, this garnishee was indebted to the said Willie Mills or W. M. Wills, if the said W. M. Mills and Willie Mills are one and the same person; that on or about November 17, 1915, it was finally determined that this garnishee was indebted to the said Willie Mills in the sum of $650.00 by reason of the loss sustained by the said Willie Mills in the loss of the household furniture and piano so insured by this garnishee ; that the said Willie Mills at the time that the liability of this garnishee was established was a married man, living with his wife and the head of a family, and said property so insured by this garnishee in favor of the said Willie Mills, as well as the proceeds arising from the contract of insurance, being exempt to the said Willie Mills under the laws of the State of Texas, it forwarded on said date last aforesaid to its agent, one John P. Smith, its check payable to the order of Willie Mills for the sum of $650.00, covering loss sustained by the said Willie Mills under said policy No. 16416; that its said local agent, John Hanna, at the time the original answer of this garnishee was filed, was not advised of the loss sustained by the said Willie Mills or W. M. Mills, nor that this defendant was indebted to the said Willie Mills or W. M. Mills in the sum of $650.-00, or any other sum, for the reason that the loss sustained by the said Willie Mills had not at that time been ascertained or established.
“This garnishee would further show to the court that it is not now, nor was it at the time said writ of garnishment. was served upon it, in possession ■ of any effects belonging to said Willie Mills or W. M. Mills; that it does not now know of any person or persons who are indebted to the said W. M. Mills or Willie Mills, or who have effects belonging to him in their possession.
“Further answering herein, this garnishee says that the amount due the said Willie Mills or W. M. Mills at the time the writ of garnishment was served upon it was for loss sustained by the said Willie Mills on the household furniture and piano of the said Willie Mills, and that said sum due the said Willie Mills under said policy of insurance aforesaid was, at the time that the writ of garnishment was served upon this garnishee, exempt from garnishment or forced sale to the said Willie Mills, and not subject to the writ of garnishment herein served upon this garnishee; that the property insured was exempt to the insured as well as the proceeds due under the policy of insurance, and not subject to the writ of garnishment herein.
“This garnishee alleges, as in its original answer, that it has had to employ an attorney, Geo. Q. McCracken, to answer for this garnishee, and that it is entitled to have judgment for its reasonable attorney’s fees incurred in filing this answer.
“Wherefore garnishee prays, as in its original answer, that it be discharged, with its costs and attorney’s fees, and that plaintiff take nothing by its suit against this garnishee; and further prays for such other and further relief, special and general, in law and equity, that it may show itself justly entitled to.”

This answer was controverted by appellee.

Judgment was rendered in favor of Gog-gan •& Bro. against the garnishee insurance company for the sum of $170.60, and $3.10 costs of court. From this judgment the insurance company appealed to the county court of Galveston county, where the cause was again tried before the court without a jury, and judgment again rendered in favor of Goggan & Bro. against the garnishee insurance company for $170.60, with interest thereon at the rate of 6 per cent, from the 8th day of October, 1915, and costs of suit. From this judgment of the county court the insurance company has appealed to this court.

At the request of appellant the trial court filed his findings of fact, among which are the following:

“I find that defendant Mills had agreed with plaintiff’s agent, and they together notified the garnishee through its agent, John P. Smith, on August 20, 1915, that plaintiff had a lien to secure an indebtedness of $170.60 on defendant’s piano that had burned, which amount defendant Mills desired that the insurance company pay directly to plaintiff.
“I find the garnishee insurance company was indebted to the defendant Mills on said piano in a sum exceeding $170.60 at the time writ of garnishment was served.
“I find that at the time writ of garnishment was served and an. answer thereon filed by garnishee it was indebted to the defendant in the original cause in the sum of $650.00.
“I find that on or about November 7, 1915, the garnishee sent to its agent John P. Smith its check payable to the order of defendant for the sum of $650.00, covering loss sustained by the destruction of said piano and household furniture by fire of August 12, 1915.”

These findings of the court are not challenged by any. assignment of error in the brief of appellant.

The substance of the first and second assignments is that, as the undisputed evidence shows that the piano in question was a part of the household furniture of Mills, the head of a family, and exempt from forced sale for the payment of his debts at the time it was destroyed by fire, the insurance thereon was also exempt to him, and it was the duty of appellant to plead the exemption mentioned for Mills in its answer to the writ of garnishment, and that, having made such answer, the court erred, under the facts proven, in rendering judgment against appellant, because, as the piano was exempt property of Mills, the insurance money paid under the policy for its destruction was also exempt from the payment of appellee’s judgment against Mills.

It must be and is conceded that the piano, under the facts proven, was exempt' from forced sale for the payment of the general debts of Mills; but it cannot be in good faith contended that it was exempt from sale to satisfy the debt of Mills, which was secured by a mortgage upon the same». Appellant, however, makes the further contention that, although appellee might have had the piano sold before its destruction by fire to satisfy their mortgage lien, they could not subject the money due under the policy of insurance for its destruction, because there was no provision in the policy that such insurance money was to be paid to appellee in case of loss by fire; that money due from a policy of fire insurance taken by debtor for his own protection, for loss of personal property vdiich is exempt from execution, is not subject to garnishment, even where the creditor has a lien on the property destroyed. Appellant cites in support of this last contention Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479, and Oameron v. Fay, 55 Tex. 59. The cases cited and many others support the contention; but, while the policy of insurance issued to Mills was not by its terms for the benefit of Goggan & Bro., we think the evidence shows, as found by the trial court, that Mills had agreed with appellees, Goggan & Bro., through their agent, that $170.60 of the money due under the policy of insurance should be paid to them, and that appellant insurance company had notice of such agreement before and after the writ of garnishment was served upon it, and before it paid Mills $650 in settlement of its liability under said policy of insurance. Mills had waived his right to have $170.60 of said insurance money exempted from the payment of appellee’s claim against him, and, as appellant had been so notified, it cannot r.elieve itself of liability imposed by service of the writ of garnishment upon it by pleading an exemption for Mills which he had waived.

The insurance money was not exempt to Mills after he had consented that it should be paid to appellee. Regardless, however, of this waiver, appellant paid the entire sum of $650 due under the policy to Mills after the writ of garnishment had been served upon it. We think the law and evidence supports the judgment rendered. We therefore overrule the first and second assignments.

By the third assignment it is insisted that the trial court erred (1) in admitting in evidence the mortgage from Mills to Goggan & Bro., and (2) in admitting in evidence a letter written by Mills to Goggan & Bro. of date June 15, 1915, in which he said to Gog-gan & Bro. that he had insured the piano in question for the use and benefit of them (Goggan & Bro.), because the insurance company was no party to nor in any way connected with the promise or information contained in said letter, nor did it have any knowledge of the contents of the letter, and could not be bound thereby, and that the admission in evidence of said letter was prejudicial to defendant, and the contents of the same were immaterial and irrelevant to any issue in the cause.

Appellee, Goggan & Bro., had no lien upon the insurance money paid fór the loss of the piano by virtue of the mortgage. Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Cameron v. Eay, 55 Tex. 59. The fact that Goggan & Bro. had an unsatisfied lien upon the piano before its destruction was an immaterial and irrelevant fact to any issue in the cause, and the admission of the mortgage in evidence was error; but, as the case was tried before the court without a jury, the error was harmless.

The letter was properly admitted in evidence. George R. Sutton, agent for Goggan & Bro., had testified that Mills had gone with him to see J. P. Smith, agent for .the insurance company, at San Augustine, on the 20th day of August, 1915, and that at that time Mills told Smith to pay jGoggan & Bro. $170.60 of the insurance money due him under the insurance policy; that Goggan & Bro. had a mortgage on the piano for the purchase money, and that he wanted a check issued to them for $170.60. Mills testified for the insurance company that he did not, after the fire that destroyed the pianoi call on J. P. Smith, agent for the insurance company, in company with Sutton, and tell Smith that Goggan & Bro. had a mortgage on the piano, and instruct Smith to pay Goggan & Bro. $170.60, but that he had a talk about the matter with Sutton. The letter from Mills to Goggan & Bro., the admission of which in evidence is complained of, is as follows:

“San Augustine, Texas, June-16, 1915.
“I am in receipt of yours of late date, and in reply will say that I have done all I could to get the money to send you on my piano act, but have failed. I have been up against it of late, but can commence paying again on the 1st. I do not intend to get behind with my payments and stay behind. I will catch up in a month or two. I have on a deal and if I make it you will get settlement in full this fall, so be patient for a while at'least. I am aware of the fact that you as all other concerns needs all the money you can get, and especially times like this, but if you can wait awhile you-will get all I am due you.
“I have taken out insurance on the piano especially for. your protection, so if I should have an accident I could pay off this instrument.
“Respt., W. M. Mills.”

We think the letter was admissible as tending to support the testimony of Sutton and to discredit that of Mills, and for these purposes was admissible.

We overrule the fifth assignment, by which complaint is made of the admission of the testimony of the witness George Sutton, hereinbefore stated. We think this testimony was clearly admissible to show that Mills had waived his exemption to $170.60 of the insurance money; that he had agreed with Sutton, as agent for Goggan & Bro., that said sum should be paid to Goggan & Bro., and that appellant insurance company had notice of such agreement and waiver long before it paid Mills any part of the $650 due under the policy of insurance.

We find no such error in the trial of the cause as should cause a reversal of the judgment rendered; therefore the judgment of the trial court is affirmed.

Affirmed.

PLEASANTS, C. J.

I concur with the majority of the court in the opinion that the judgment of the court below should be affirmed, but think the affirmance should be based upon the ground that the insurance on the piano was taken out for appellee’s benefit, and in consideration of appellee’s forbearance to institute proceedings to collect the notes given by Mills for the purchase money on the piano, and which were due when the insurance was obtained. The letter from Mills to appellee, set out in the opinion of the majority, states that the insurance was “taken out especially for your [appellee’s] protection.” The trial court finds that Mills wrote this letter to induce appellee to extend the credit. This finding is not complained of by appellant. The undisputed evidence shows that at the time the insurance was taken, which was a few days before the letter above mentioned was written, several, if not all, the notes given ajipellee by Mills were due, and appellee was demanding payment, and that after the receipt of the letter no action was taken by appellee to enforce the payment of the notes by suit and foreclosure of the mortgage upon the piano.

I think these facts clearly show that the insurance on the piano was taken out for appellee’s benefit, and that in consideration of the procurement of the insurance appel-lee forbore to enforce the payment of the notes by suit and foreclosure of the mortgage. As between Mills and appellee, - the right of appellee to have the purchase-money notes for the piano paid out of the proceeds of the insurance policy cannot be doubted, and the failure of the policy to so state is immaterial in view of the fact that the evidence shows that appellant was informed by both Mills and appellee, before it paid the amount due on the policy to Mills, that the amount due appellee for the piano was to be paid out of the insurance money. Appellant, it seems to me, had no more right to pay the money to Mills after the notice it had of appellee’s right thereto than it would have had if the policy, by its written -terms, had been made payable to “appellee as its interest might appear,” which is the usual form in which insurance policies taken out on property by debtors for securing the mortgage creditor are written. The following general statement from 2 Ruling Case Law, p. 614, of the principle of the law of equitable assignments, is applicable to any assignment of an interest in a chose in action, whether the assignment is intended to pass the absolute title or is only intended as security for a debt:

“Since equity disregards mere form, no particular words or particular form of instrument is necessary to effect an equitable assignment. Any language, however informal, if it shows the intention of the owner of the chose in action to transfer it, so that it will be the property of the transferee, will act as an equitable assignment. ' It has been said that any order, writing, or act which plainly makes an appropriation of a fund or debt may amount to an equitable assignment, and that the true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming to be the assignee. Thus it has been held that there is a valid assignment in equity whenever the person to whom an obligation is due authorizes its payment to another, either for his own use or for that of some other person, or authorizes any one to receive or hold the moneys, and to apply them to any specific purpose other than for the benefit of the assignor. An assignment may be in parol, or partly.in writing and partly oral. If the equitable assignment of a debt is in writing, and the intent and contract of the parties are not fully expressed, it has been held that parol evidence is admissible as in similar cases in reference to written instruments. Moore v. Lowrey, 25 Iowa, 336, 95 Am. Dec. 790.”
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      dSsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes