author: McMEANS, J.

text:
    GALVESTON COMMERCIAL ASS’N et al. v. ORT et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1914.
    Rehearing Denied March 26, 1914.)
    1. Municipal Corporations (§ 697) — Stbeets — Obstruction — Right to Sue — Nonabutting Property Owner.
    One whose property does not abut on a street obstructed by a baseball park fence, in the absence of proof that the construction of the park and fence depreciated the valúe of the lots, or that he had suffered annoyance or inconvenience therefrom not shared by the community in general by reason of the obstruction, was not entitled to compel the removal of the fence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.]
    2. Municipal Corporations (§§ 680, 681)— Streets — Obstruction — Authority op City Commissioners.
    The city commissioners of Galveston, though clothed by its charter with general power to control, open, close, and alter streets, had no right, as against an abutting property owner, to grant to a private corporation or association of persons the exclusive right to obstruct streets or parts of streets for a term of years for personal profit by the construction of a baseball park.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. §§ 680, 681.]
    3. Municipal Corporations (§ 671) — Streets — Obstruction — Rights op Abutting Owner.
    Independent of the question of nuisance, an owner of property abutting on a street has such property rights therein as entitle him to restrain the partial or total obstruction thereof, under purported municipal authority, by the construction of a baseball park, even without proof that his property has depreciated in value as the result of the obstruction, or that it has operated to his injury by way of discomfort, inconvenience, or annoyance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1447-1450; Dec. Dig. § 671.]
    4. Municipal Corporations (§ 671) — Streets — Obstruction—Abutting Owners —Remedy.
    Where a city, without authority, authorized a private corporation to obstruct portions of certain streets by the construction of a baseball park, an abutting owner was entitled to enjoin the obstruction and was not limited to an action for damages, though the defendants were amply able to pay damages.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1447-1450; Dec. Dig. § 671.]
    5. Municipal Corporations (§ 671) — Streets — Obstruction — Abutting Owner —Ownership oe Property — Proof.
    Where, in an action by an abutting owner to restrain the obstruction of a street, the title to the owner’s lots was not in issue, the introduction of his deed, proof of prior possession, and recognition of his title by defendant, in the absence of rebutting evidence, was sufficient to show his capacity to sue.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1447-1450; Dec. Dig. § 671.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by W. F. Ort and others against the Galveston Commercial Association and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    M. H. Royston and I. Lovenberg, Jr., both of Galveston, for appellant City of Galveston. Charles P. Macgill and James .B. & Charles J. Stubbs, all of Galveston, for appellant Commercial Ass’n. George G. Clough, of Galveston, for appellees.

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

   McMEANS, J.

This is a suit brought by W. F. Ort, Russell Markwell, and John F. Maverick against the city of Galveston, the Galveston Commercial Association, and others, whose relation to the case need not now be considered, for the abatement of a nuisance created by the defendants by entirely inclosing one and partly closing two public streets in the city of Galveston. Plaintiffs alleged that the Galveston Commercial Association has constructed in the city of Galveston a baseball park, completely closing Thirtieth street from Avenue Q% to Avenue R, and encroaching 35 feet on the south side' of Qy¡¡ from the west side of Twenty-Ninth street to a point a short distance west of Thirtieth street, by a fence 10 feet or more in height; that the plaintiffs own lots abutting on Thirtieth street and and adjacent thereto, in close proximity to the structure so erected; that they suffer special injury from the erection and maintenance of the fence around the park and from the grandstand and other structures inside of it, in the depreciation of the value of their property and the obstruction thereby of the Gulf breeze; and pray that the nuisance created by the erection of the fence and other structures be abated, and for a mandatory injunction requiring the defendants to remove the same.

The defendants specially pleaded that the baseball park is located on the southeast quarter of outlot 114, and denied that any avenue or street had been opened or dedicated to the public use through said outlot, or' that the use thereof as a baseball park in any way depreciated the value of adjacent property. They alleged that the Galveston Commercial Association has, among its objects and duties, the promotion of the prosperity of the city, in which are included the right and duty of encouraging the bringing of people to the city by assisting and providing for them, and for its citizens, recreation and amusement, one of the principal purposes of that body being to aid in building up the city as a commercial and pleasure resort; that, with such end in view, said association obtained authority from the city commissioners of the city of Galveston to inclose for a period of five years from February 22, 1912, a part of said outlot 114 for the purpose of building a baseball and amusement park, included in which is a part of the sidewalk along the south side of the southeast quarter, to a point 42 feet and 10 inches beyond what would be the intersection of Thirtieth street, if it were opened, and also including for the same distance what would be the south half of Avenue Q% if it were opened; admitted that it did construct on the property so inclosed the fences, grandstands, and other improvements alleged by plaintiffs, and charged that said association had expended in making such improvements the sum of $3,500, and that the same has improved a vacant part of the city, and had brought the property in the vicinity to the notice of many persons desiring to invest or build, and is a benefit to the same and to the community generally; that no property owners or residents are deprived of ingress or egress to any property abutting on what would be Q% and Thirtieth streets, if opened. Defendants further pleaded that the property that defendant Ort claims he owns consists of two unimproved lots, including one-half of the alley, and is located .on the northwest corner of Twenty-Ninth street and what would be Avenue QY2, if opened; that the north half of Avenue Q% is 35 feet wide, and that Ort’s lots abut on this open space, and one of said lots abuts on Twenty-Ninth street, which is SO feet wide and improved; that the plaintiff Markwell does not own or claim any property abutting on Avenue Q% or Thirtieth street;- that the property which plaintiff Maverick claims to own is situated on the southwest corner of Avenue Q and what would be Thirtieth street, if opened. They further alleged that the defendant Galveston Commercial Association is amply solvent and able to respond to any judgment for damages which plaintiffs might recover against it growing out of the matters complained of.

The case was tried before a jury, but, after the parties had introduced their testimony, the court instructed the jury to return a verdict for the plaintiffs, which was done, and judgment was entered thereon in their favor requiring and compelling defendants to remove the obstructions, buildings, and fences from Avenue Q% between Twenty-Ninth and Thirty-First streets, and from Thirtieth street between Avenue Q% and Avenue R, such removal to be made within 90 days from date of judgment, and from hindering or in any way interfering with the plaintiffs in their right to use all of said Avenue Q% for a width of 70 feet and said Thirtieth street in connection with their properties or as members of the public. From this judgment the defendants have appealed.

When the original petition in this case was filed, the plaintiffs prayed for the issuance of a temporary mandatory injunction requiring the removal of the obstructions above named pending a trial upon the merits, but the writ prayed for was denied, and, upon the appeal by plaintiffs from the order denying the writ, the action of the court below was sustained. See Ort v. Bowden (Civ. App.) 148 S. W. 1145.

Avenues Q, Q%> and R run east and west, and Twenty-Ninth street and Thirtieth street run north and south. These avenues and streets have long been opened for public use and recognized by the public and the city of Galveston as public thoroughfares, and have been graded and some of them paved by the city. The Galveston Commercial Association applied to and obtained from the city commissioners of the city of Galveston permission to construct a baseball and amusement park in the southeastern section of outlot 114, and also asked, and over the protest of the plaintiffs obtained, permission to construct the fence around the park in such a way as to build its northern line in the center of Avenue Q% and to entirely close Thirtieth street from Avenue QYa to Avenue R, and also in constructing the south line of -the park to encroach 16 feet on the north side of Avenue R. The permission thus granted was acted upon, so there was taken into the inclosure 35 feet off the south side of Avenue Q from the intersection thereof.with Twenty-Ninth street to a point about 42 feet west of Thirtieth street, and Thirtieth street was entirely closed between Avenues Q% and R. Plaintiff Ort owns two city lots situated at the northwest comer of Avenue Q% and Twenty-Ninth street, and these lots abut on Q% at a point where its width of 70 feet is reduced, by the construction of the fence in its center, to 35 feet. The plaintiff Mark-well owns three city lots situated at the southwest corner of Twenty-Ninth street and Avenue Q; and the plaintiff Maverick owns two lots on the southwest corner of Thirtieth street and Avenue Q. Markwell’s lots do not abut on any street that is obstructed by the park fence, but Maverick’s lots abut on Thirtieth street, which was closed by the fence, but' not immediately upon that part where the obstruction is; the nearest line of his lot to the construction being 175 feet. Ort’s lots at the time of the building of the fence were vacant and unoccupied, and remain so, but prior to the storm of 1900 there was a house upon them, occupied by his tenants. Markwell’s lots were vacant at the time the park was inclosed, but after this suit was brought he built a house thereon, which he now occupies as his home. Maverick’.s lots had a house or houses upon them, and before and since the obstruction of Thirtieth street by the park fence the houses were and are occupied by his tenants. The following map will serve to show the relation of the park to the streets and avenues named and to the properties of the plaintiffs, and to illustrate the contention of the parties:

The City of Galveston was chartered by special act of the Legislature (Acts 29th Leg. [Sp. Laws] c. 37). A portion of section 34 of its charter, relating to the control of the streets by the city commissioners, provides, among other things, that they shall have exclusive power to control, open, close, and alter the streets. Whether the park inclosure depreciated the value of plaintiffs’ properties was a controverted fact issue; several witnesses, besides the plaintiffs, testifying that the market value was depreciated thereby, and several witnesses for defendant testifying that it was not. The park has been leased by the Galveston Commercial Association to the Galveston Baseball Club, and the latter uses it for private profit, charging admission fees to see baseball games. At times when the park is not used for playing the game, the Commercial Association has the right to use the grounds and improvements for other athletics events and for meetings during the cotton carnival. There was neither averment nor proof that defendants were insolvent, nor that a judgment against them for damages could not be collected, nor was there any proof of any injury or damage save the diminution of the value of the property, and that was met by contradictory proof. A deed from S. B. Smith to Wm. J. Ort, conveying the outlots, contains this recital: “Avenue Q.% is open on the south of these lots, and we dedicate same (if not previously done) to the public use.” Plaintiffs also introduced in evidence a deed from the Galveston City Company to J. Pinkney Henderson, dated December 20, 1840, whereby the said Galveston City 'Company did bargain and sell, grant, and convey to the said J. Pinkney Henderson, his heirs and assigns, all the certain lots or parcels of land situate, lying, and being in the city and county of Galveston and republic of Texas, and known, designated, and der scribed in the plan of said city as the northwest, northeast, and southwest quarters in block No. 113 of the outlots between Thirty-First and Twenty-Third streets and Avenues Q and R and the northwest and northeast quarter in block 'No. 114' of the said outlots between Twenty-Ninth and Thirty-First streets and between Avenues Q and R; said deed containing the following recital: “Witnesseth, that thé said directors as aforesaid having by their acknowledged agent heretofore held a sale at public auction of lots in the city of Galveston at and before which sale it was proclaimed and made known that the blocks or squares represented in the plan of said city were of the dimensions of three hundred feet by two hundred and sixty feet, with an alley twenty feet wide in the center, and were divided into fourteen lots each, the numeration of which commenced with lot number one at the northwest corner of every block and was continued on the north front of forty-two feet, ten inches, with a depth of one hundred and twenty feet, except lots numbers one and fourteen which have each forty-three feet front. And that said company expressly reserved to itself the right of laying out other lots and squares with streets and alleys on the north front of the city up to the channel of the bay in conformity with the general plan exhibited' at the sale.”

We will not discuss appellants’ assignments of error in. detail. Our conclusions upon the pleadings and evidence are: (1) That the property of the plaintiff Markwell, as shown by the testimony, does not abut on any street obstructed by the park fence, and that his rights in the streets obstructed are such only as the community generally are entitled to enjoy; and in the absence of proof conclusively showing that he has suffered damages in the depreciation of the value of his lots (and this was an undecided controverted issue oi fact), or that he was caused to suffer annoyance or inconvenience not shared by the community in general, by reason of the obstructions, we do not think that the court was authorized to render judgment in his behalf. However, as the judgment was properly rendered in favor of the defendants Ort and Maverick, as we shall presently undertake to show, the appellants have no right to complain of the decree in favor of Markwell unless it be in reference to costs, and no complaint is made on that score. Scott v. City of Marlin, 25 Tes. Oiv. App. 353, 60 S. W. 969.

We shall not attempt to review or reconcile the various decisions in this state bearing more or less directly on the question here involved. The question is simply this: Had the city commissioners of the city of Galveston, although clothed by the charter with the general power and authority to control, open, close, and alter the streets, the right, as against an abutting property owner, to grant to a private corporation, association, or persons the exclusive use of the streets or parts of streets to be used five years for private profit or gain? Or the question may be put this way: Has an abutting owner the right to cause to be abated, as a nuisance, an obstruction placed in a street which wholly or partly closes the same, and which in any material respect interferes with the free use and enjoyment thereof, although the obstruction is authorized and permitted by the city, which, under its charter, has the exclusive power to control, open, close, and alter the streets; the streets thus partly or wholly closed not being used by the city or applied to any public use, but exclusively by private persons for profit? We think the first question must be answered in the negative and the second in the affirmative. From our findings of fact and the map showing the location of the property of Ort and Maverick, it will be seen that Ort’s lots abut on Avenue Qonehalf of which has been appropriated for private use, and Ort’s use of that portion denied. The construction of the fences upon the street constituted a purpresture and a nuisance. People v. Harris, 203 Ill. 272, 67 N. E. 785, 96 Am. St. Rep. 304. And this is true even if sufficient room was left for a passageway. 2 Dillon on Mun. Corp. § 702; Hoey v. Gilroy (Com. PI.) 14 N. T. Supp. 161. Thus in Dillon, § 702, it is said that power to a municipal corporation to establish markets and build market houses will not give the authority to build them on a public street; that such erections are nuisances, though made by the corporation, although sufficient space be left for the passage of vehicles and persons. If, then, a municipal corporation, expressly authorized by its charter to' establish markets and market houses, is without authority to erect structures for public purposes, upon the public streets, a fortiori the power possessed by the city of Galveston under its charter to control, close, and alter the streets did not authorize it to empower private persons to erect structures upon public streets for private use.

But, independently of the question of nuisance vel non, we think that Ort, as an abut-ter, had such property rights in the street itself as entitled him to have the obstruction thereon removed, even though he failed .to show that his lots were depreciated in their market value or that the • obstruction in some other way operated to his hurt, by way of inconvenience, discomfort, or annoyance. The Supreme Court of Illinois, in Field v. Barling, 149 Ill. 556, 571, 37 N. .E. 850, 854 (24 L. R. A. 406, 41 Am. St. Rep. 311), referring to the rights of abutting owners, says: “The dedication of the street by the plat, the sale of lots with reference to it, conveyance of abutting lots, and the payment of money for the conveyances were elements sufficient to create the right. The right may be regarded 'in the nature of an incorporeal hereditament. It becomes appurtenant to the lot. As rights seemed they are plain; to have the street kept open, so that free access may be had to and from the lots abutting on the street.” In the later case of Pennsylvania County v. Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 823, the court adjudged that the title to the streets in Chicago was vested in the city, and “it has the conservation, control, management, and supervision of such trust property, and it is its duty to defend and protect the title to such trust estate. The city has no power or authority to grant the exclusive use of its streets to any private person or for any private purposes, .but must hold and control the possession exclusively for public use, for the purposes of travel and the like.”

The general doctrine is thus stated in Dillon on Municipal Corporations (5th Ed.) § 1916: “Property is that congeries of rights secured by law in and over land or other things, which in the aggregate constitute the owner’s title thereto, his ownership, his right of use and enjoyment, and his right of disposition, as against competing claims on the part of others. For example, an abutting owner’s right to access to and from the street, subject only to legitimate public regulation, is as much his property as his right to the soil within his boundary lines. * * * When he is deprived of such right of access or other easement connected with the use and enjoyment of his property, other than by the exercise of legitimate public regulation, he is deprived of his property.” Again in section 1123 it is said: “But it was further seen that he (the abutting owner) had certain rights not shared by the public at large, special and peculiar to himself, and which arose out of the very relation of his lot to the street in front of it;” and that these rights, whether the bare fee of the street was in the lot owner or the city, were rights of property, and as such his .right to the lot itself.

In Lewis on Eminent Domain,. where the adjudged cases are referred to and examined, • it is said: “When the owner of a tract of land lays the same out into lots and streets and sells the lots, the purchasers of such lots acquire as appurtenant a private right of way add access over the streets. The private right arises without an express grant and in the absence of any statute. The law presumes that the parties had in mind the advantages to be derived from the use of the proposed streets, and implies a right to such use as a part of the grant. * * * Therefore, in the ease of such a grant, there arises by operation of law a private right to use the streets in connection with the lot of each proprietor, which is as inviolable as any right of property. * * * The existence of these private rights and easements is therefore entirely independent of the mode in which the highway is established, or the estate or interest which the public acquires in the soil of the street, whether a fee or less. Lewis on Eminent Domain (2d Ed.) § 91f.

The case of Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 2S8 (writ of error denied by the Supreme Court) is in line with the authorities above cited. In that case Sullivan sought and obtained from the city council of the city of San Antonio permission to close a portion of an alley which was a public thoroughfare running through a block in said city, in which block both he and Mrs. Kalteyer owned lots abutting on the alley. Mrs. Kalteyer’s lot was located with reference to the part of the alley sought to be closed by Sullivan, pursuant to the permission given him, substantially as is the lot of plaintiff Maverick with reference to that part of Thirtieth street inclosed by the defendant Commercial Association. A map of the block given in the opinion shows the relative position of the lots of each to the alley. Mrs. Kalteyer brought suit against Sullivan and the city of San Antonio seeking to enjoin the closing of the alley, and on a trial before a jury the injunction was denied, and she appealed. It was shown on the trial that the charter of the city of San Antonio conferred upon the council the exclusive power over the streets, and gave it the right to open, alter, and abolish them. In that case, as in this, the city authorities were appealed to by the abutter for redress, but redress was denied. In reversing the judgment and rendering judgment for appellant, the court, after referring to certain sections of Dillon on Municipal Corporations, from which we have quoted, says: “When it is asserted that the Legislature has plenary power over municipal streets, it must be understood that it has power over them as streets, for it cannot be justly affirmed that it may deprive them of the character of streets to the special injury of abutters without yielding them fair compensation for the loss actually sustained. The city council of San Antonio has no more power over streets than is granted by the Legislature, nor can the Legislature grant such power as would, in its exercise by the council, damage the property of an abutting owner without providing adequate compensation for such damages. The power vested in the Legislature over public highways, which it may delegate to towns and cities over streets within their limits, is for the benefit of the public, and should by municipalities be always exercised in furtherance of the purpose for which it is conferred. When the representatives of the corporation, upon whom this power is conferred, close a highway against the use and to the detriment of the public, and turn it over to a private individual for his private use, they pervert the law, and violate the trust which it is their duty to faithfully execute.”

Such being the law, it must be held, we think, that the appellees are not remitted to- their action for damages, even though it be shown that the only injury suffered by them as a result of the closing of the street is the pecuniary damage caused by the depreciation in the value of their lots. In other words, we do not think that appellees Ort and Maverick can, in the circumstances of this case, be deprived of their property rights in the streets, against their will, by allowing them a recovery for the amount of damages sustained to their lots by reason of the inclosure. We had occasion to pass upon that question on the appeal of this case by plaintiffs from the order refusing to grant a temporary mandatory injunction (Ort v. Bowden, 148 S. W. 1145), where a like contention was assailed, and upon the authority of Telegraph, etc., Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1052, and Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, the contention was overruled. We think that, under the facts there stated, the ruling was correct, and we see nothing in the facts of the case, as presented on this appeal, to require us to depart from it.

We will discuss but one other contention made by appellants, and that arises upon the admission, over the objection of defendants, of oral testimony by plaintiffs Ort and Mark-well of their ownership of and title to the lots abutting on or adjacent to the streets closed. Plaintiff Markwell, by reason of the remoteness of his lots to the obstruction in question, was not entitled to a judgment requiring the removal of the structures, and the judgment will not be reversed because of any error in admitting his testimony as to his ownership of lots if the testimony on this issue was sufficient to prove the ownership by the other defendants of the lots they alleged they owned. Ort’s lots were vacant at the time the park fence was built, and had been so since the storm of 1900, which destroyed the improvements thereon. He testified he owned the lots. Prior to the storm the lots had improvements upon them and were then in his possession and occupied by his tenants. He introduced a deed from W. J. Ort conveying to himself the lots he claimed, and a map offered in evidence by defendants is marked to show these lots as those of plaintiff Ort. He introduced in evidence, as an admission against interest, extracts from the original answer of the defendant Commercial Association, sworn to by its president, as follows: “Defendant further alleges that the property of W. E. Ort of two unimproved lots, including one-half of the alley, is located on the northwest corner of Twenty-Ninth street and Avenue Q%.” The title to Ort’s lots was not in issue, and we think that his deed, his prior possession, and recognition of his title hy defendant Commercial Association, in the absence of some rebutting evidence, was sufficient to maintain his action. Railway v. Wallace, 74 Tex. 585, 12 S. W. 227. But, if we are mistaken in this, we maintain that the judgment should be affirmed, for the evidence shows that plaintiff Maverick was, on account of the situation of his property on Thirtieth street with reference to the fence that closed the same, equally entitled to maintain the action for a mandatory injunction, and further that he was in actual possession of his lots, and no question is made as to the sufficiency of the evidence offered by him to prove his ownership.

We have carefully examined all of appellant’s assignments of error, and the several propositions presented under them, and are of the opinion that reversible error is not pointed out in any of them. Upon the whole case as made by the pleadings and evidence, no other verdict and judgment than one in favor of the appellees Ort and Maverick should have been rendered, and therefore the judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    OGG v. OGG.

      (Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1914.
    On Motion for Rehearing, April 1, 1914.)
    1. Limitation of Actions (§ 182) — Pleading as Defense — Necessity.
    Rev. St. 1911, art. 5691, providing that no action against a person residing in this state for ten years preceding the commencement of the action shall be brought upon any foreign judgment or decree rendered more than ten years before its commencement, and article 5696, providing that judgments, where execution has not issued within 12 months after the rendition thereof, may be revived only within ten years after their date, are statutes of limitation and not available unless limitations are pleaded as required by article 5706, providing that limitations shall not be available unless specially pleaded as a defense.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. § 182.]
    2. Limitation of Actions (§ 180) — Pleading as Defense — Necessity.
    Under Rev. St. 1911, art. 5706, providing that limitations shall not be available unless specially set forth as a defense in the answer, limitations cannot be raised by a general demurrer.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 670-675, 681; Dee. Dig. § 180.]
    3. Divorce (§ 331*) — Actions on Foreign Judgments — Burden of Proof.
    In an action on a New York judgment of divorce granting permanent alimony, payable monthly, which provided that after one year from its date plaintiff might apply for an increase or defendant for a decrease of the alimony, the burden was on plaintiff to plead and prove that, under the New York law, it was a final judgment entitled to full faith and credit, and that the right to receive alimony was not discretionary to such an extent that no absolute or vested right attached as to overdue installments, especially where the laws of‘the forum state do not provide for permanent alimony and the judgment could therefore not be aided by applying its laws.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 841, 842; Dec. Dig. § 331.]
    4. Evidence (§ 80) — Presumptions — LaW8 of Other States.
    In the absence of allegations and proof to the contrary, it will be assumed that the laws of another state are the same as the laws of the forum.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80.]
    5. Evidence (§ 35) — Judicial Notice — Laws of Other States.
    The courts do not take judicial notice of the laws of other states, and, if relied on, they must therefore be alleged and proved.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 51; Dee. Dig. § 35.]
    6. Courts (§ 95) — Decisions — Courts of Other States.
    Where the statutes of another state are pleaded and proved, the courts will refer for their construction to the reported decisions of such state.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 322, 323; Dec. Dig. § 95.]
    On Motion for Rehearing.
    7. Appeal and Error (f 1164) — Reversal-Decision on Wrong Ground.
    Where, in an action on a foreign judgment, though the petition did not show that it was a final judgment and entitled to full faith and credit, the demurrer was either overruled or not presented and the court erroneously entered judgment for defendant on another ground, the judgment would be reversed in order that plaintiff might amend as she might have done had the demurrer been sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4523; Dec. Dig. § 1164.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Emma Y. Ogg against Hiram' E. Ogg. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded on rehearing.
    Denman, Franklin & McGown, of San Antonio, for appellant. Hertzberg, Barrett & Kercheville, of San Antonio, for appellee.

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

   CARL, J.

On April 3, 1913, the appellant, Emma V. Ogg, filed suit in the Fifty-Seventh district court, Bexar county, Tex., against appellee, Hiram E. Ogg, to recover alimony alleged to be due her under and by virtue of a certain judgment for divorce and alimony rendered in her favor June 2,1897, in the Supreme Court of the county of Kings, state of New York. It is alleged that hy this judgment the defendant was required to pay her $50 per month as alimony, the first payment to commence from the 8th day of May 1897, and to he paid on the 1st and 15th of each month thereafter; that such payments were made for the year 1898, except May and October installments; that all installments for the years 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, and 1908 and the installments for January, February, March, April, and June, 1909, were made, leaving due and unpaid the installments for the months of May and October, 1898, and the installments for January, February, March, April, and June, 1909, and all the installments for each month after the said month of June, 1909, up to and including the month of March, 1913, the amount claimed being $2,350 with interest. The appellee answered by general demurrer and general denial, and the matter wag submitted to the court without a jury. Upon hearing the proof, the court entered judgment for the defendant, and the plaintiff has appealed.

■ Plaintiff below introduced the judgment roll from a Special Term of the Supreme Court of Kings county, N. Y., dated June 22, 1897, which is substantially in terms as alleged in the petition. This further provision is in such judgment: “And it is further adjudged and decreed that after the expiration of one year from the date hereof the plaintiff may apply for an increase or the defendant apply for a decrease of the alimony fixed herein upon showing a change in the financial condition of the defendant.” The plaintiff herself testified that “no application has ever been made to the court which rendered the decree of divorce and judgment for alimony for modification of said decree and said decree and judgment for alimony has not been modified or vacated.”

The trial court has decided this case upon the theory that articles 5691 and 5696 would absolutely preclude the establishment of ’ any judgment based upon a judgment which came within their range. Taking this view, the court has held that, when it is made to appear by the judgment roll that it is more than ten years old and no execution has issued, it is an absolute nullity and no judgment can be' based thereon.' But it must be recalled that these are limitation statutes. While it is true they' use the language that a suit may be brought thereon to revive within ten years after the date of the judgment, and not after, still practically the same language is used in article 5688 in reference to what actions are barred in four years. In this class fall actions on written instruments, etc., which it* is said must be sued on in four years from the time the cause of action accrues and not afterwards. And yet can it be contended that, in view of the decisions of Texas, a suit may not be maintained and a valid judgment obtained on a note that is barred by limitation? Limitation is a privilege which must be interposed, and if not raised by plea, either special exception or pleading, or both,' is waived. When not pleaded, by exception or otherwise, it is waived, and it will not be contend-ed that it can be raised by a general demurrer. The statute says it must be pleaded. Gathwright v. Wheat, 70 Tex. 740, 9 S. W. 76; Tillman v. Erp, 121 S. W. 547; Sayles’ Stats, art. 3371; R. S. 1911, art. 5706.

The court below has pronounced the patient dead, and beyond resuscitation; but counsel for appellant contend that it is a protracted nap, and not death, that has affected the New York judgment. It has been held that the limitation laws of this state apply with equal force to foreign contracts, judgments, etc. (Fborn v. Zimpelman, 47 Tex. 517, 26 Am. Rep. 315), and that the statute affects simply the remedy in an action for debt (Fievel v. Zuber, 67 Tex. 279, 3 S. W. 273; Goldfrank v. Young, 64 Tex. 436; Blackwell v. Barnett, 52 Tex. 333; De Cordova v. Galveston, 4 Tex. 480). The debt, although barred, is a sufficient basis for a new judgment, and it may be relied on for recovery unless the bar of the statute is specially pleaded. Gathwright v. Wheat, 70 Tex. 742, 9 S. W. 76; Dickinson v. Lott, 29 Tex. 178. It will be seen by article 5706 that limitation is not available unless pleaded. So we conclude that, in so far as limitation is concerned, the judgment was merely dormant and would support a new judgment here, if that were the only obstacle.

The laws of this state do not provide for permanent alimony, and if left to measure the ease under our own law, which we must do in the absence of pleading and proof that such a judgment is valid and binding and enforceable in New York, are we not driven to the conclusion that there is not a sufficient showing made upon which to base a judgment? It is not pleaded nor proven that under the New York law such a judgment as that sued on is not subject to the control of the court rendering the same. The petition alleges “that said judgment was not appealed from nor writ of error sued out, but that the same is in full force, virtue, and effect.” The decree introduced contains this paragraph: “And it is further adjudged and decreed that after the expiration of one year from the date hereof the plaintiff may apply for an increase or the defendant apply for a decrease of the alimony fixed herein upon showing a change in the financial condition of the defendant.”

The plaintiff says no application has ever been made to the court, which rendered said decree, for a modification thereof, and that it has not been modified or vacated. In the absence of allegation and proof of the New York law, we are left to proceed under our own law and will assume that the laws of the two states are the same and to be measured by our own rules. Herndon v. Vick, 18 Tex. Civ. App. 583, 45 S. W. 852; Gill v. Everman, 94 Tex. 209, 59 S. W. 531; Blethin v. Bonner, 93 Tex. 141, 53 S. W. 1016; Railway v. Moody, 71 Tex. 614, 9 S. W. 465; Poreheler v. Bronson, 50 Tex. 555; Bradshaw v. Mayfield, 18. Tex. 21.

It is well settled that when the laws of another state are relied on in this state they must be alleged and proven. Armendiaz v. Serna, 40 Tex. 304; W.. U. Tel. Co. v. Russell,. 12 Tex. Civ. App. 83, 33 S. W. 708; Anderson v. Anderson, 23 Tex. 641. Our courts do not take judicial notice of the laws of other states; but, where the statutes of another state are pleaded and proven, the courts of this state will refer for its construction to the reports of decisions of that state. Cavazos v. Trevino, 35 Tex. 165; Andrews v. Hoxie, 5 Tex. 193; Powell v. De Blane, 23 Tex. 75.

There is no allegation in this case that the decree is final, nor is it made to appear either from the pleading or from the proof that the matured installments under this decree are not subject to be modified, set aside, or changed by the court rendering the same. The decree affirmatively shows that a modification may be applied for after one .year. The installments here sued for are past due according to the decree, but it has not been pleaded and proven that the judgment is not still subject to the control of the court. If it is, then it is not a final judgment. This is a burden resting on plaintiff to plead and prove all the things necessary to establish the judgment here so that it may be enforced. In the case of Page v. Page, 189 Mass. 85, 75 N. E. 92, 4 Ann. Cas. 296, this same question came before the Supreme Court of Massachusetts. It was there pleaded, just as in this case, that the decree “still stands unreversed and in full force.” There was. no ■ allegation that the decree was not subject to modification by the court which rendered it. As to the necessity of such an allegation, the court said: “It is true that there 'is an allegation that the decree ‘still stands unreversed and in full force,’ but that is not an allegation that it is final. It is not an allegation as to the nature of the decree, but simply that its nature has not been changed. As the question comes to us upon demurrer, we. have no information before us as to the law of Maine; but in view of the general character of such decrees, and the general rule that they are subject to the revision of the respective courts which pass them, we cannot upon demurrer to this bill assume that the decree is final. If the .plaintiff contends that it is, there should be in the bill some such allegation, as there was in Brisbane v. Dobson, 50 Mo. App. 170, namely, that there is no authority in the court to reverse or modify the decree. So far, therefore, as the plaintiff relies upon this constitutional provision, she has not stated a ease. So far as, independently of that provision, she asks the assistance of this court as in a case of foreign judgment, she is met by the same difficulty. It does not appear that she has any positive or final decree for the payment of a sum certain, or which can be made certain. The fair construction of the ' bill, taken in connection with the.nature of the decree, is that she has no such final decree. For aught that appears, the Maine court upon application might revise the decree and decline to issue any process. for the collection of any sum whatever. The demurrer therefore must be sustained.”

Since we conclude that it was necessary to sustain the action that the plaintiff allege and prove the judgment, that it was final and not subject to revision, the' case was not made out, and the court did not err in entering judgment for defendant.

The judgment is affirmed.

On Motion for Rehearing.

We see no reason to change our holding with respect to the necessity of pleading and proving that the judgment sued upon comes within the class of judgments to which full faith and credit must be given. As stated by us in the original opinion,, we cannot aid the judgment by applying our law because the same does not permit judgments for permanent alimony. The question, then, is whether the party asking that full faith and credit should be given to a judgment for future installments of alimony should be required to show affirmatively by pleading and proof that such judgment is one falling within the first class described in the case of Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, and not one falling in the second class described in said ease,' namely, one rendered in a state in which under its laws the' right to receive the alimony is discretionary to such an extent that no absolute or vested right attaches to receive the installments, even though no application to annul or modify the decree had been made prior to the installments becoming due. We think that in this character of case such laws must be pleaded and proven, or else the court cannot determine that the judgment is one to which full faith and credit must be given. The issue is clear cut, whether this is a matter to be shown by plaintiff, or whether defendant must, if relying upon such laws, show the same as matter of defense. We are of the opinion that he who presents the judgment showing on its face that it is for future installments of alimony and asks that full faith and credit should be given thereto should show that the law of the state makes such installments final, and not subject to modification aftef their accrual.

However, we conclude that, having held that no cause of action was stated in the petition, it would not be proper to affirm the judgment. A general demurrer was filed, and was either overruled or not presented. The record shows no • disposition thereof. Plaintiff should not be deprived of an opportunity to amend, such as she would have had, if the defect in her petition had been called to her attention in the trial court. Defendants must press their demur-’ rers and exceptions in the trial court. If they do not, and fundamental errors are noticed, justice requires that the case be reversed so as to give plaintiff the same opportunity to amend which he would have had if the defects had been pointed out below. Cooper v. Marchbanks, 22 Tex. 1; Jirou v. Jirou, 136 S. W. 498; Mullaly v. Ivory, 30 S. W. 259; Scanlon v. Railway Co., 86 S. W. 931.

The motion for rehearing is granted, and the judgment is reversed and remanded.


author: HUFF, C. J.

text:
    MEADOR BROS. et al. v. HINES.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 11, 1914.)
    1. VENDOR AND PURCHASER (§ 242) — BONA Fide Purchaser — Burden of Proof.
    One asserting an equity in land against the purchasers of the legal title has the burden of showing that such purchasers are not bona fide purchasers without notice.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.]
    2. Vendor and Purchaser (§ 244) — Bona Fide Purchaser — Evidence—Sufficiency.
    In an action by one who asserted an equitable interest in land, the legal title to which defendants had acquired, evidence held insufficient to show that defendants were not bona fide purchasers without notice.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dee. Dig. § 244.]
    3. Vendor and Purchaser (§ 229) — Bona Fide Purchaser —Notice—What Constitutes.
    A statement by one engaged in the land and abstract business to a purchaser of land that he thought the sale would not be good unless the vendor’s wife joined was not a sufficient communication to apprize the purchaser of an equitable interest of the vendor’s wife, for, if it was not the statement of an erroneous legal opinion, it was-at most the utterance of a mere suspicion, and not a fact which would give the purchaser constructive notice of the wife’s interest.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477 — 494; Dee. Dig. § 229.]
    4. Vendor and Purchaser (§ 226) — Bona Fide Purchaser — Who is.
    Where purchasers of land paid the purchase price to a bank as the vendor’s agent, and the deed to them was deposited with the bank before they had notice of plaintiff’s equitable interest, the bank’s retention of the funds and the deed until after the purchasers acquired notice of plaintiff’s claim does not deprive them of the defense of bona fide purchase, for the transaction was completed upon the delivery of the purchase price and the deed to the bank.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 475, 476; Dec. Dig. § 226.]
    5. Lis Pendens (§ 8) — Notice—Citation.
    Until service of citation upon the defendant husband, the commencement of an action. for divorce, in which the wife prayed for adjudication of their property rights, was not notice ’ to purchasers of land from the husband of her interest therein.
    [Ed. Note. — For other eases, see Lis Pendens, Cent. Dig. §§ 13-19, 25; Dec. Dig. § 8.]
    6. Evidence (§ 317) — Hearsay.
    Where there was no evidence that defendants, who purchased land in which plaintiff had an equitable interest, were parties to a scheme to defraud her, evidence of communications between the holder of the legal title and his ag;ent, showing a fraudulent scheme, was inadmissible as against defendants.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]:
    7. Vendor and Purchaser (§ 243) — Bona Fide Purchaser — Evidence — Admissibility.
    After defendants had entered into a contract for the purchase of land, and had sent the purchase price to the bank with which the vendor was to deposit the conveyance, plaintiff, wB'o had an equitable interest in'the land, wired defendants to assist her in establishing her title, and that, she would protect them. At the time of the telegram both parties had carried out their agreement, but the bank had not transmitted the deed to defendants or the purchase price to the vendor. Meld, that in a suit by plaintiff against defendants, the telegram was inadmissible, not showing that defendants were not bona -fide purchasers, and necessarily being prejudicial.
    ■ [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig. § 243.] •
    8. Taxation (§ 832) — Payment of Taxes— Volunteer.

      A person who, in good faith and under color of title, claims to be the owner of real estate may pay taxes assessed thereon; and, if his title is afterwards defeated, he is entitled to be reimbursed by the true owner.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1645; Dec. Dig. § 832.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Consolidated actions by Florence L. Hfires against Meador Bros, and others. From a judgment for plaintiff, the named defendants appeal.
    Reversed and remanded.
    . See, also, 146 S. W. 289,
    Davis & Davis, of Gainesville, R. E. Thom-ason, of El Paso, and Gustavus & Jackson, of Amarillo, for appellants. M. W. Stanton, of El Paso, Fisét, McClendon & Shelley, of Austin, and Lumpkin & Harrington, of Amarillo, for appellee.

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

   HUFF, C. J.

On the 3d day of May, 1902, appellee, Florence L. Hines, then Florence L. Taylor, brought an action of trespass to try title for the seven sections of land in question, against J. W. Taylor, her then husband, and John Sparks. Taylor and Sparks thereafter interpleaded the appellant Meador Bros., who in answer to the appellee’s petition, alleged that they had purchased the land from J. W. Taylor and John Sparks, in good faith for value, and without notice that Florence L. Hines, the then wife of Taylor, had or claimed an equity in the land. Ap-pellee, in addition to the ordinary allegations of trespass to try title, set out at great length her equity in the land, and charged a fraudulent conspiracy on the part of Sparks and Taylor and others to defraud her of her rights. The case was brought on change of venue from Sherman county to Potter county, and tried at the March term thereof, 1913. The court submitted the case to the jury upon special issues, to which the jury returned answers in favor of the appellee, and judgment was rendered in accordance therewith, and from which appellants prosecute appeal.

This case has been before the Courts of Civil Appeals heretofore and the Supreme Court and is reported in 87 S. W. 740; 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381; 146 S. W. 289. The issues in the case will be found in those reports, and set out more in detail.

The jury in answer to the issues submitted to them returned a verdict, finding as facts substantially the following: That on or about the 15th day of September 1900, Mrs. Hines, then Taylor, was to raise $5,000 by mortgage upon her separate property in Toledo, Ohio, and that the money should be used by Taylor as a payment on his contract with J. E. Crosby and wife for the purchase of 30 sections of land in Sherman county, Tex. The seven sections of land in controversy were included in the 30 sections above named. Taylor and his wife, the appellee . herein, entered into an agreement at the time of raising the $5,000 on plaintiff's property in Toledo, Ohio, to the effect that such money should be used by Taylor in first repaying himself the $1,000 he had paid for the option on the Crosby land, and the balance to be used as payments on said purchase of the 30 sections of land, and the title should be so taken as to require the signature of appellee, Mrs. Hines, and that it be in her name. That $4,000 of the money obtained upon the mortgage was applied direct to the payment of the land, and $1,000 was paid Taylor to reimburse him for the sum paid by him on the option from Crosby, and that Taylor used no other money in purchasing the land. The jury also found that appellee was to own the land and J. W. Taylor was to have only an undivided half interest in the profits, if any, to be derived from the sale of the land, after paying off the $5,000 secured by the Toledo, Ohio, property belonging to Mrs. Taylor. We think there is evidence in the record which will support the findings of the jury, and we would not feel justified in disturbing the verdict on that ground.

The parties agreed to the following facts, which are set out in the judgment of the court:-

“(1) It is agreed that the 30 sections of land described in plaintiff’s fourth amended original petition; and which include the seven sections of land which are involved in this suit, were, on the 10th day of. July, A. IX,-1876, together with other lands, patented by the state of Texas to J. F. Crosby, as as-signee of the Texas New Orleans Railway Company, and that the same remained the property of said J. F. Crosby, or the said J. F. Crosby and his wife, until conveyance was afterwards made by Crosby and wife, as hereinafter agreed upon.
“(2) That thereafter, on the 16th day of June, 1900, while the said J. F. Crosby and wife, Josephine Crosby, were still the owners of said 30 section of land, they entered into a written contract with the said defendant J. W. Taylor by which they agreed to sell and convey the lands for the sum of 50 cents per acre or $9,600 in the aggregate; said Taylor paying at that time in cash the sum of $1,000, the balance to be paid within 60 days thereafter, but the time was afterwards extended by mutual agreement. That the said Taylor fully paid the balance due for said 30 sections of land prior to November 20, 1900, with the exception of $500, which was agreed to be reserved to cover whatever taxes might be due on the land, and that on November 20, 1900, said Crosby and wife executed to the said Taylor a general warranty deed, conveying said 30 sections of land; the deed to be introduced in evidence.
“(3) That said agreement of June 16, 1900, provided that a failure to pay the balance due of the original purchase money in the time provided for in said agreement should forfeit the $1,000 paid at the execution of said contract to the said Crosby and wife; the exact provisions will be shown by the evidence.
“(4) That J. W. Taylor, defendant herein, and the plaintiff, were legally married on June 28, 1900.
“(5) That on September 15, 1900, said defendant Taylor and plaintiff executed a mortgage upon plaintiff’s separate real estate situated in Toledo, Ohio, and also executed two notes secured by said mortgage, one for the sum of $1,500, and the other for the sum of $3,500, and realized the sum of $5,000 therefrom, and same was turned over to said J. W. Taylor.”

The law controlling the issues as above set out was discussed by the Supreme Court when this case was before that tribunal. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381. We feel that it is unnecessary, and that we are unable, to add anything further to what was said by the Supreme Court in this case. We, therefore, overrule the various assignments of the appellant calling in question the findings of the jury as to the equity of Mrs. Hines and the judgment of the court thereon.

/The next question presented is whether Meador Bros, are purchasers in good faith for value and without notice of appellee’s equity, as found by the jury. The parties, with reference to this branch of the case, entered into the following agreement, which is incorporated in the judgment;

“(6) That the said J. W. Taylor was in the year 1898 upon his voluntary petition, adjudged a bankrupt by the United States district court at El Paso, filed his schedule of assets and liabilities in said proceeding in accordance with the bankrupt law and rules, and that in said schedule he scheduled no assets, but scheduled liabilities aggregating about $40,000, and that John Sparks did not appear in his schedules as one of his creditors. The defendant reserves the right to object to this as material and a part of it as hearsay.”
“(9) On the 15th day of February, 1902, the said Taylor through his duly authorized agent, O. F. Rudolph, entered into a contract in writing with the defendants T. S. and S. D. Meador, by which he agreed to execute to the said Meador Bros, a deed, with the usual covenants of warranty conveying said sections of land in controversy, for the price of $1.50 per acre, less 29 acres deducted on account of the right of way to said Rock Island Railroad over two of said sections, $100 of said purchase money being paid in cash by Meador Bros, to said Rudolph upon execution of said contract; and by said contract said Taylor was to furnish an abstract showing a good and perfect title, free from defects, to be approved by the attorneys selected by Meador Bros., and, upon said abstract being furnished and approved by said Meador Bros, bound themselves to send to the Low-den National Bank at El Paso, Tex., the sum of $5,659.27, in exchange, to be paid to said Taylor upon his depositing in said bank a warranty deed to said Meador Bros., in compliance with said contract, said sum being the amount of unpaid purchase money going to said Taylor; the remainder of said purchase money, less the sum of $49.14 taxes upon said land, assumed by the said Meador Bros, and less $22, expense of surveying, and the sum of $968.09, according to said agreement, to be paid direct to the said-Rudolph, as commissions due him from said Taylor upon said sale. The terms of the instrument to be corrected by reference to the instrument itself.”
“(11) That on February 22, 1902, said Rudolph, having completed the abstract of title to said seven sections sent to Meador Bros., at St. Jo, Tex., together with a prepared deed to said Meador Bros, to be signed by said Taylor for the approval of said Meador Bros, and their attorneys, and with said deed and abstract inclosed the following letter: ‘Stratford, Texas, February 25th, 1902. Lowden National Bank, El Paso, Texas— Gentlemen: Inclosed is a warranty deed to be executed by J. W. Taylor, conveying seven sections of land in Sherman county, to T. S. and S. D. Meador. Also inclosed is a bank draft, $5,659.27, hy your favor which you are to transfer to the account or order of the said J. W. Taylor on his execution of said deed. The deed you will then transmit at once either to Meador Brothers, St. Jo, Texas, or to me at Stratford, Texas, for record, as the Meador Brothers may indicate below on this page as being their wish. The deed is purposely drawn by previous agreement of all parties to make the consideration read one dollar and fifty cents per acre. Very respectfully, O. F. Rudolph, Agent for J. W. Taylor.’ This letter was in the handwriting of said Rudolph. Meador Bros, had the abstract of title examined by an attorney of their selection, who approved the same, and on or shortly' before the 10th day of March, 1902, procured exchange from a bank at St. Jo, Tex., upon the Seaboard National Bank of New York, payable to the order of Lowden National Bank, for $5,659.28, and placed said draft, the above letter, and deed in an envelope, and mailed it to said Lowden National Bank, but before doing so wrote the following at the bottom of said letter: ‘Send Deed to Meador Brothers, St. Jo, Texas. Meador Brothers.’ Said letter, draft and deed reached the Lowden National Bank on or shortly before the 13th day of March, 1902, whereupon the said bank forwarded the draft to New York for collection and had its proceeds placed to its credit in the Seaboard National Bank, and Meador Bros, never at any time appeared upon the books of said Lowden National Bank.
“(12) Said J. W. Taylor, at Stratford, Tex., for the purported consideration of $6,008.85, executed a deed conveying said seven sections of land to John Sparks, which deed purported to be dated, acknowledged, and recorded in Sherman county, on the 1st day of March, 1902, which deed will be introduced in evidence.
“(13) On the 18th day of April, 1902, said Sparks, at the request of said Taylor, executed and acknowledged, for a recited cash consideration of $6,008.85, a deed, conveying said seven sections of land to said T. S. and S. D. Meador, and on the 19th day of April, 1902, mailed said deed, together with the deed from Taylor to himself, to said Lowden National Bank, and with said deed inclosed a letter, directing the bank to deliver to Meador Bros., when the amount named as consideration of the deed, $6,008.85, was placed to his credit in said bank. The deeds and letter reached the Lowden National Bank on or shortly before April 26, 1902; these deeds as well as the deed from Crosby and wife to Taylor were in the usual form, and contained usual covenants of warranty.
“(14) On May 9, 1902, said Sparks wired said bank to send him by mail New York Exchange for $6,000, in response to which'instructions the bank, on the 10th day of May, 1902, ' mailed him New York Exchange for $5,651.57, the amount, less exchange, previously deposited, to be paid to J. -W. Taylor on the sale to Meador Bros, f
“(15) On March 1, 1902, the plaintiff filed in the district court of El Paso county a suit for divorce against her husband, J. W. Taylor, and for an adjudication of tlieir property rights, including the rights claimed by them in and to the land in controversy. That citation was issued in said cause in El Paso county, where the defendant Taylor then resided, on March 1, 1902, and said citation was served on said J. W. Taylor on March 4, 1902, in El Paso county, Tex. That an injunction was granted and issued in said cause on March 1, 1902, restraining said Taylor from handling and disposing of the land mentioned in the deed from Orosby and wife to J. W. Taylor, including the seven sections of land involved in this suit; or the proceeds of such lands, and said injunction was served on said J. W. Taylor in El Paso county at 10 o’clock a. m. on March 4, 1902. That said divorce suit was dismissed by plaintiff on the 8th of October, 1903, the judgment reciting that the dismissal was without prejudice. That afterwards, on the 9th day of April, 1904, the plaintiff filed a new suit for divorce in said court against said J. W. Tay-Idr; the petition alleging the same allegations for divorce as were alleged in the first suit, and praying for an adjudication of the property rights between the plaintiff and defendant, including the property rights in the lands involved in this suit. That said cause was tried, and resulted in a judgment, on the 12th day of October, 1905, granting to the plaintiff a divorce from the said J. W. Taylor; the judgment therein reciting, among ojiher things, that no demand was made for the adjudication of the property rights of the parties, and that same was waived without prejudice to the rights of the parties in any suit then pending or thereafter to be brought.”

The parties also agreed that J. W. Taylor, prior to the 15th day of February, 1902, sold all of the 30 sections of land, except the 7 sections in controversy, to various parties, giving the names of the purchasers, price paid, and the amount in cash and in notes. Mrs. Taylor joined J. W. Taylor in the deeds to part of the land so sold, and in part she did not join in the conveyance, but the deeds were executed by Taylor alone.

The Supreme Court held in this cq.se, when before that court, that the evidence showed that Meador Bros, had the legal title, and that Mrs. Hines is setting up an equity in the land, and, in order to entitle her to recover the evidence, should show that Meador Bros, are not bona fide purchasers. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 488, 6 L. R. A. (N. S.) 381. The authorities are to the effect that the burden of proof was on appellee, Mrs. Hines, to prove that Meador Bros, were not such purchasers. McAlpine v. Burnett, 23 Tex. 649, 650; Halbert v. De Bode, 40 S. W. 1018; Rogers Bros, v. Houston, 94 Tex. 403, -60 S. W. 869; Saunders v. Isbell, 5 Tex. Civ. App. 513, 24 S. W. 307; Edwards v. Brown, 68 Tex. 329, .4 8. W. 380, 5 S. W. 87. The Supreme Court, in passing upon this ease, further held there was no testimony which tends to prove that the consideration was not valuable, or that it was inadequate, and that there was no evidence showing a want of good faith on the part of Meador Bros. The jury in this case did not find that the price was inadequate, or that Meador Bros, did not act in good faith in the purchase of the land. These issues were not submitted to the jury by the court. We do not think there is any testimony which would have warranted the trial court in submitting the issue of good faith of Meador Bros, in purchasing the land, or that the consideration was inadequate. We think the testimony was amply sufficient to show that the consideration paid for the land by Meador Bros, was adequate and that Meador Bros, acted in good faith in the purchase of the land.

The Supreme Court further held in this case that there was no evidence whatever which tends to show that Meador Bros, had notice of the claim of Mrs. Hines prior to the'26th day of April, 1902. We have gone over the record carefully, and we fail to find any fact before April 26, 1902, that would place appellants upon notice that Mrs. Hines owned the equitable title to the land, or any fact which would put them upon inquiry. The record title stood in the name of J. W. Taylor, husband, who had been selling the land previous thereto out of the 30 sections originally purchased by him from Crosby; he had conveyed all but 7 sections, some 23 in all. In some of the conveyances Mrs. Taylor had joined him in the conveyance, and in others she had not. Taylor listed the 7 sections of land in question with one Rudolph for sale, which he advertised in the Dallas News. Seeing this advertisement, appellant wrote to the agent, Rudolph, with reference to the price and situation of the land. They had known Rudolph some years previous,, and the testimony indicates they were on friendly terms. This correspondence led to T. S. Meador, one of the firm, visiting Sherman county, to examine the land. While there he entered into a contract with the agent, on behalf of his firm, to purchase the land, and paid thereon $100 as earnest money. In compliance with a contract then made, an abstract was afterwards furnished Meador Bros., which they delivered to their attorneys for a legal opinion as to the title. The attorneys pronounced the title good. Meador Bros., in the meantime, however, requested that Taylor have his wife sign the deed, but was informed that she was sick at that time in New Mexico, and could not do so, and that Taylor alone would sign the deed. Their lawyers told them the title was good without her signature. They, however, procured an affidavit from J. W. Taylor that he owned the land, and that no one else had an interest in it. After making the investigation as to the title of.the land as above stated, they forwarded, by draft, the purchase money with the exception of the commission due Rudolph, to the Lowden National Bank, El Paso, Tex., which had been selected by Taylor to receive the money. Mrs. Hines was in Sherman county but once before the contract was entered into with Meador Bros.; and, if she ever told or intimated to any one while there that she owned an equitable title to the land, or had any interest in it, the record does not show that fact. In so far as this record shows, no one in Sherman county knew of such equity who could have given ¿ppellant any fact which would have led to the knowledge of such equity, unless it was the husband, J. W. Taylor. His sworn affidavit was made at the request of appellant, and is, “there was no other legal claimant besides himself to the land or any of them owned by him in Sherman county.” We do not find a fact in the record that would charge the appellants with notice, or which would require of them to make further inquiries. The jury found that prior to February 15, 1902, appellants had no notice that appellee had or claimed an interest to the seven sections, hut they do find appellants had such notice prior to April 26, 1902. The Supreme Court held there were no facts charging appellants with notice prior to April 26, 1902, and we believe this court, as well as the trial court, should be governed thereby.

It is now insisted that the deposition of J. P. Fowler, taken the 26th day of July, 1909, since the former trial, makes a different case to the one before the Supreme Court. This witness appeared to have been present at the first trial, and was then in the employ of Mrs. Hines, but did not testify. By his deposition he testifies some time in the winter of 1902, “one of the Meadors came to our office [Lile & Fowler]. I cannot give the conversation between Lile and Meador in dptail, for the reason that I do not recall it, and I did not hear all that was said, but to the best of my recollection Mr. Meador was contemplating buying some of the Taylor lands, and he was seeking advice regarding the title, and my recollection is that Lile advised him that the title would not be good without Mrs. Taylor’s signature. Mr. Meador, upon leaving the office, made the statement to Mr. Lile that he would not purchase the land without Mrs. Taylor’s signature.” The witness, in answer to an interrogatory which recited the' date of the contract and some other particulars of the controversy, said he believed it was in February he heard the conversation, but was never certain or definite as to which Meador or the time when the statement testified about was made. At the time the deposition was given witness was living in Bastrop county. Witness and Arthur Lile were partners while he lived in Sherman county. At that time Arthur Lile was a deputy sheriff, and he and Lile were in the land and abstract business. The ap-pellee, Mrs. Hines, also took the deposition of Arthur Lile, who testified that he met T. S. Meador in February, 1902, and had a brief conversation with him, in which Meador “stated that he was surveying some lands he and his brother were purchasing through Mr. Rudolph.” In May, 1902, a few days after this suit was filed by appellee against Taylor and Sparks, he had a conversation with S. D. Meador, in which Lile mentioned the fact that Mrs. Taylor had brought suit for the land. S. D. Meador “replied that he knew it, and would not take the land unless Mr. Taylor got the suit settled.” He had been specifically requested to give his conversation with T. S. Meador. The testimony of T. S. Meador is that he was in Sherman county once only, when he went to look at the land in February, 1902, and that shortly after the 7th day of February he looked at the land, had it surveyed to locate the boundaries, made the contract with Rudolph, and that he inquired of no one in Sherman county as to the validity of the title, except Rudolph, who stated the title was as “clear as a bell.” The first time S. D. Meador was in Sherman county was in May, 1902, after this suit was filed, and he testifies to the conversation with Lile on that occasion. Lile does not testify that he knew or had ever heard of Mrs. Hines’ equity or claim, and no one is shown to have heard of her asserted rights in Sherman county in February, 1902. We do not think, under the facts in this case, that the advice of Lile to Meador, if made in February, that the title would not be good without Mrs. Taylor’s signature, would be such statement of a fact as would put appellants upon inquiry. Lile did not state a fact, but “advised the title would not be good without Mrs. Taylor’s signature.” This is clearly an opinion, either based upon what he thought the law required, or upon some vague uncom-municated rumor or suspicion, and which was not made known to Meador Bros. The bur;den was upon appellee to show notice, actual or constructive. A mere opinion is not a fact. The opinion, if ever given to Meador, he had investigated by two reputable lawyers, who assured Meador that Mrs. Taylor’s signature was not necessary to the deed. Lile knew no fact which would require investigation; if he did, appellee has not shown it. If he knew of no fact, an inquiry of him would reveal none. It is therefore beyond question, if he gave such advice, it was but an opinion of law. The advice of Lile was not actual knowledge; this need not we think be discussed.

“Constructive notice includes all other instances in which the information thus directly communicated cannot be shown, but is either conclusively presumed to have been given or received from the existence of certain facts, or is implied by a prima facie pre sumption of the law, in the absence of contrary proof.” 2 Pomeroy!s Equity, 593.
“A purchaser or person obtaining any right in specific property is not affected by vague rumors, hearsay statements, and the like, concerning prior and conflicting claims upon the same property, and the reason is that such kind of reports and statements do not furnish him with any positive information, any tangible clue, by the aid of which he may commence and successfully prosecute an inquiry, and thus discover the real truth; his conscience is not therefore bound.” Id., § 597. Wethered v. Boon, 17 Tex. 143; Martel v. Somers, 26 Tex. pp. 559-560.

There should be facts and circumstances shown by the evidence, called to the attention of the proposed purchaser, which, .if followed up with reasonable diligence, would lead to the truth. Bile’s statement does not rise to the dignity of a rumor or hearsay. It is but a vague, indefinite, and intangible opinion formed in his mind, upon which he advised. The facts and circumstances then surrounding the parties • clearly show it to have been such, and had for the expression none other. It will be noted that Eowler is unable to state with which one of the Meadors the conversation occurred, or with any degree of definiteness when it occurred. T. S. Meador talked with Bile in February. Bile, when called as a witness by appellee, testified as to that conversation and what it was, which is not in the slightest degree the one given by Fowler. S. D. Meador had a conversation with Bile a few days after this suit was filed. This conversation, as given by Bile, in some particulars resembles the one testified to by Fowler. This evidently is the conversation which Fowler was trying to give. We think it is clear the jury so believed, for they found Meador had no notice prior to February 15th, the date of the contract entered into by Meador Bros, with Rudolph to purchase the land; but it is suggested by appellee the jury could have found this conversation occurred on the 15th. The jury did not so state in their verdict, and we see no fact which would have authorized them to have so found. Bile’s testimony is that the. conversation was while the surveying was being done, and all the facts indicate that after the surveying, and after the examination of the land as to its location and quality, the contract was executed, and T. S. Meador left for home. There was but one conversation at that time testified to by Bile and Meador. We see no fact which authorized the jury to say it did not occur before the 15th, but did occur on or after. We will not attribute to the jury that they found notice, prior to the 26th of April, 1902, upon this vague and uncertain testimony of Fowler, and upon Bile’s vague and intangible advice or opinion. The jury evidently. did not believe the evidence of Fowler, and found no notice to Meador Bros, before February 15th. /

It is urged by appellee that after the money was sent to the bank at El Paso in compliance with the contract, and’ after April 26, 1902, and before May 10, 1902, Meador Bros, had notice of the equity of Mrs. Hines, and, having taken no steps to prevent the money from passing out of their control, they cannot claim protection as innocent purchasers as to the funds they paid the bank. The jury found that appellants had notice before May 10, 1902. This finding is supported by the evidence. The Supreme Court held in this case that, when- the contract had been complied with by the delivery of the deeds for Meador Bros, by Sparks, and the money credited to Sparks by the bank, the bank then held the deeds for Meador Bros. The deposition of the cashier of that bank -has been retaken in order to prove the money was not placed to the credit of Sparks when the bank received his deed, but that it was held as a memorandum check on the books of the bank. The money and the deed were in the hands of the bank, and under the contract Meador Bros, were to have the deed upon payment of the money. We see no material difference in the status of the parties as shown by the retaking of the cashier’s deposition, and we believe, when the deed was received by the bank, the trade was consummated. Meador Bros, had agreed to take the land at the price, and had complied. Taylor had agreed to deed the land, and had complied. The agent selected by Taylor had the money and the deed. It was its duty to deliver the deed to Meador Bros, and the money to whom Taylor directed. The trade was consummated April 26, 1902. All the conditions of the contract had been met. The bank, by merely keeping or holding the money in one form or the other, could not defeat the contract. We think the Supreme Court has settled this question, and there is nothing for us to do but be governed thereby. The Court of Civil Appeals for the Fourth District evidently took appellee’s views of this case, but on this very point the Supreme Court reversed that; court. We see no reason why we should now follow the Court of Civil Appeals rather than the Supreme Court.

The appellants contend there is no testimony showing that the deed from Taylor to Sparks, bearing date March 1, 1902, was in fact dated March 3, 1902, as found by the jury. All the positive testimony is that it was dated on the day it bears date. The appellee insists that the conduct of Taylor, Sparks, and Rudolph, with reference to this land, together with other circumstances, were sufficient to authorize the jury to find that the deed was dated back. We are ,not prepared to say there are no facts which authorize the inference drawn by the jury. It, therefore, becomes necessary to determine whether, as a question of law under the undisputed and agreed facts, the court could hold the deed void from Taylor to Sparks, and for that reason no title would pass to Meador Bros.

Mrs. Hines, formerly Taylor, brought and filed suit for divorce against lier liusband March 1, 1902. The jury found that the deed was actually executed by Taylor to Sparks on the 3d of March, 1902, one day before service of citation in the divorce suit, which was had March 4, 1902. The Supreme Court has held that notice by lis pendens applies in divorce suits. Berg v. Ingalls, 79 Tex. 522, 15 S. W. 579. It has been held by the courts that notice by lis pendens does not apply until the defendant is served with citation. Cassidy v. Kluge, 73 Tex. 154,12 S. W. 13 ; Smith v. Cassidy, 73 Tex. 161,12 S. W. 14. The Supreme Court held in this case that the doctrine of notice by lis pendens does not apply in divorce suits until after citation had been served on the defendant. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381, citing Smith v. Cassidy, supra. In the case of Smith v. Cassidy, 73 Tex. 161, 12 S. W. 14, the Supreme Court held, “without regard to the act by which the suit is commenced for other purposes, it seems to be universally held that ■for the purpose-of notice by lis pendens, it does not begin until service of process, or its publication in case of an absent defendant.” Taylor had no such notice, as required by law, of the suit, though filed, until he was served by citation. Until notice by lis pen-dens could be invoked under the statute, he had the right to sell the property of himself and wife. The fact that it was a divorce suit does not change the rule of notice under the law of pendente lite. Such we understand to be the effect of the holdings of the Supreme Court when this case was before it. A discussion, therefore, of whether the property conveyed by Taylor’s deed to Sparks was separate or community property, whether article 4637, R. S. 1911, applies to separate property, or whether the deed, after notice by lis pendens, was void or voidable, we regard as immaterial questions to a decision in this case, at this time, and are therefore unnecessary to decide. The deed to Sparks not being void because of notice by lis pen-dens, if Meador Bros, were otherwise entitled to the land under the contract, it follows a jury’s finding that the deed was antedated was immaterial under the facts, and will not affect Meador Bros.’ right to the land.

We think the court was in error in admitting the letters of Rudolph to Meador Bros, on and after May 1, 1902, and also the telegram from Mrs. Hines to Meador Bros., dated November 26, 1902. These letters and telegrams were after Meador Bros.’ rights had been fixed. There is not the slightest evidence prior to April 26th that appellants had entered into a conspiracy with Sparks and Taylor or Rudolph to defraud appellee; and the fact that they thereafter tried to protect their rights was no evidence of fraud. They certainly are shown to have been sufferers in this case. Their money had been obtained from them under circumstances which show that they had exercised all the prudence and taken all the precautions men in ordinary business affairs usually take. We do not think an effort to enforce their contract or to save their money can be properly denounced as fraudulent. However, this may result in a hardship upon appellee, and ultimately defeat her equity. The letters of Rudolph should have been limited to the purpose of showing, if they did, that the deed from Taylor to Sparks was antedated, and to the efforts of Sparks and Taylor in the transaction through Rudolph to defraud the appel-lee; but as to Meador Bros., who it appears were innocent victims with the appellee, they should have been allowed no probative force, and therefore, if admissible in the.case at all, should have been limited. Meador Bros, objected to their admission for any purpose in so far as their rights were concerned, and as to them, they were immaterial and prejudicial.

The telegram to Meador Bros, from Mrs. Hines on November 26, 1902, was sent the day after Taylor and Sparks had filed their answer interpleading Meador Bros, in the suit. This telegram requested Meador Bros, to co-operate -with appellee, stating that she would fully protect them, and requesting them to consult her lawyers. We can see no purpose which this evidence could conserve other than to prejudice the jury against appellants. Appellants at that time knew neither party. Why they should do anything is not shown in the evidence or telegram, or why they should co-operate with appellee. There was no effort to pay the money back to them. She says she would fully protect them. There is no good reason why she should not have afterwards done so, or that she even in good faith offered to protect them. In admitting this telegram the court permitted appellee to make testimony in her favor against appellants, and in the hands of skillful attorneys, it would be an effective weapon before a jury to arouse their prejudice against appellants. The assertion that they would have been fully protected would likely have become a fact in the minds of the jury, especially when admitted by the approval of the court. We think this testimony was calculated to injure the rights of appellant.

The third, fourth, eighth, fourteenth, eighteenth, twentieth, twenty-first, twenty-second, and forty-fourth assignments of error are sustained. We think judgment should be rendered for Meador Bros, for the land in proportion to the purchase price paid by them for the land prior to April 26, 1902, which was the amount deposited in the Lowden National Bank, and to that extent they are bona fide purchasers of the land. The judgment of the lower court is therefore reversed, with direction that judgment be entered for Meador Bros, for the land to that extent, and under the direction of the Supreme Court in Sparks v. Taylor, 99 Tex. 411, 90 S. W. 491, 6 L. R. A. (N. S.) 381, tlie court may, if the equities require, establish a lien on the seven sections for Meador Bros, for the money paid by them, or may decree to them land in proportion to the amount paid, and that Mrs. Hines have judgment for land in proportion to the amount paid after April 26, 1902, which we find to be the amount to be paid Rudolph as commission, less the $100 earnest money, and that if appellee desires, she may prosecute her cause against J. W. Taylor and the estate of John Sparks for the amount appropriated by Taylor or Sparks, and under proper allegations for the amount which she may show she is entitled to under the law and equities of the case; and, as to J. W. Taylor and the estate and heirs of John Sparks, the judgment establishing her equity in the land is affirmed, and is reversed and directed to be rendered only in so far as it affects the rights of appellant, Meador Bros.

By cause No. 497 the appellee, Mrs. Hines, has brought up a transcript in this case on cross-assignments, which in effect complain of the action of the trial court in rendering judgment against her in favor of appellants for the taxes paid by them on the land since their purchase, which by agreement of parties is shown to be the sum of $1,514.71 prior to September 5, 1910, and $341.37 since September 5, 1910, on the ground that the sale to and purchase by Meador Bros, was void. As seen by our opinion in this case, we do not think the sale void, and we believe, under the contention made by appellee, it was only voidable, and that, Meador Bros, having the legal title to the land against which the taxes were assessed, we do not think they can properly be said to be volunteers in the payment of the taxes. It appears that a person in good faith and under a color of title, who claims to be the owner of real estate, may pay taxes assessed thereon, and if his title is thereafter defeated, he is entitled to be reimbursed. 37 Cyc. 1152-1154; Hensel v. Regans, 8 Tex. Civ. App. 583, 28 S. W. 705; Hill v. Moore, 85 Tex. 348, 19 S. W. 162, last paragraph of opinion. Under the agreement there was no necessity for a finding by the jury, and if the items constituted a lien, there was no necessity of a finding thereon, and the court under the agreement and the issues could render the proper judgment. Railway Co. v. Henderson, 86 Tex. 307, 24 S. W. 381.

We think it unnecessary to discuss the cross-assignments further. In adjusting the equities the trial court can properly dispose of the taxes paid by the respective parties. The case is reversed, with directions to adjust the equities under the rules given by the Supreme Court and in accordance with this opinion. The costs of both appeals, Nos. 496 and 497, will be adjudged against the appel-lee, Mrs. Hines. Reversed and remanded.