source: Caselaw Access Project

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text:
    BALDWIN v. DREW.
    (No. 181.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 18, 1917.
    Rehearing Denied May 30, 1917.)
    1. Courts &wkey;»155 — Jurisdiction of District Court — Suit on Vendor’s Lien.
    In suit on a promissory note for $300, Gper cent, interest, and 10 per cent, attorney's fees, and to foreclose a vendor’s lien, where defendant filed a cross-action against plaintiff for $1,100 for taxes, $200 in money that defendant had paid plaintiff, and also a suit to cancel the deed from plaintiff to defendant, etc., the district court had jurisdiction, though plaintiff voluntarily dismissed the part of his petition seeking to establish a vendor’s lien.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §1 378, 402%.]
    2. Appeal and Error <&wkey;1190 — Mandate— Court of Civil Appeals — Reasons for Judgment — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914 art. 1637, providing that in cases where the judgment of the trial court shall be reversed and the case remanded the Court of Civil Appeals shall state its reasons for the judgment, judgment of a Court of Civil Appeals need not state in the mandate the reasons for the judgment, nor is it mandatory that a certified copy of the opinion of the court accompany the mandate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4645.]
    3. Continuance <&wkey;ll — Joinder of Code-fendant — Time for Application.
    In suit on a promissory note and to foreclose a vendor’s lien, there was no error in overruling the defendant’s motion for continuance to perfect service upon his codefendant, made a party by the second amended original answer, where the cause was filed July 12, 1912, but the codefendant was not sought to be made a party by filing amended answer until May 24, 1916.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 19-24.]
    4. Deeds <&wkey;203 — Evidence—Competency of Grantor.
    In suit on a promissory note to foreclose a vendor’s lien, the court properly admitted plaintiff’s testimony, to the effect that a third person executed to plaintiff the deed to the land in controversy, that the third person was then a person of sound mind, who was confined in an insane asylum on account of being an habitual drunkard, and that at the time he was rational and fully understood the contents of the deed which he executed to plaintiff, and that the physician at the insane asylum gave him a certificate to such effect; the evidence being admissible to show that the third person was not insane as matter of fact.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 602, 604-613.]
    5. Evidence <&wkey;461(2) — Parol Evidence-Nature of Deed.
    Such evidence was also admissible as a circumstance to show that the ambiguous deed from plaintiff to defendant was a quitclaim deed, because defendant knew the condition of the party who conveyed to plaintiff, and knew the claim of insanity asserted on trial by defendant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2130.]
    6. Evidence <&wkey;461(2)-7-PAROL Evidence-Nature of Deed.
    In such suit, letters and ex parte statements of third persons to show that when plaintiff’s grantor executed the deed to plaintiff the grantor was in mental condition to know the nature of any document he might have signed were admissible to show that the deed from plaintiff to defendant was a quitclaim deed, and to show that defendant knew the condition of plaintiff’s grantor, and knew the claim of his insanity, where the court charged the jury to consider the letters only for the bearing they might have on the character of the transaction between defendant and plaintiff at the time of execution of the deed, and that if defendant had never seen the letter, at that time the jury should not consider it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2130.]
    7. Evidence <&wkey;318(2) — Hearsay.
    In suit on a note and_to foreclose a vendor’s lien, the court properly excluded as hearsay a letter from plaintiff’s grantor, not a party, to defendant, plaintiff’s grantee, offered in evidence by defendant to show that he had written notice from plaintiff’s grantor that the grantor was claiming an interest in the land in controversy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1194.]
    8. Evidence <®=o463 (2) — Parol Evidence— Character as Conveyance or Quitclaim.
    In determining the intention of the parties to a deed as to whether the instrument conveyed the land or merely chance of title, the jury could consider oral evidence admitted in the case in arriving at their conclusion, and were confined to consideration of the deed itself.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2130.]
    9. Trial <&wkey;251(2) — Submission of Issue-Pleading.
    In suit on a promissory note and to foreclose a vendor’s lien, where the pleadings authorized the court to determine whether or not defendant was bound to pay back taxes, and defendant claimed he was not to pay them, and did not buy from plaintiff a quitclaim title, and that under the deed to him from plaintiff there was an obligation on plaintiff to pay back taxes, the court properly submitted to the jury the issue whether it was understood between plaintiff and defendant that defendant was to assume the payment of the taxes due on the land; the testimony being sufficient.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589.]
    10. Trial <&wkey;251(2) — Submission of Issue.
    Where the whole issue was whether plaintiff’s deed to defendant was, a quitclaim deed or a conveyance, the court properly refused to submit defendant’s special issue whether defendant knew when he purchased from plaintiff that plaintiff’s grantor was insane and in an insane asylum when he conveyed to plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589.]
    11. Trial <&wkey;350(4) — Special Issue.
    The court properly refused to submit a special issue as to the amount of back taxes on the date of plaintiff’s conveyance to defendant, where the amount could have been mathematically ascertained.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829.]
    12. Appeal and Error <&wkey;733 — Assignment of Error — Generality.
    An assignment that the court erred in entering judgment for plaintiff on the jury’s ver-diet for ihe reasons set forth and fully stated in defendant’s bill of exceptions “to the court entering judgment for the plaintiff on the verdict of the jury” was too general.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3025-3027.]
    13. Appeal and Error <§^1000(1) — Harmless Error — Argument op Counsel.
    In suit on a promissory note and to foreclose a vendor’s lien, argument _ of plaintiff’s counsel held not reversible error, in view of the facts that the conclusion reached by the jury was amply supported by the record, that the court admonished counsel and instructed the jury that they should not consider certain language of the speaker, and that no injury was shown to have resulted, as the preponderance of the testimony was in favor of the verdict.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4135.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit by Tom M. Drew against Jacob C. Baldwin. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 180 S. W. 614.
    Baldwin & Baldwin, of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.
   BROOKE, J.

This was a suit instituted on the 18th day of July, 1912, by Drew against Baldwin on a promissory note, and foreclosure of a vendor’s lien on 1,579 acres of land. Prior to the last trial, a few days, the defendant, Baldwin, made Tom Moore a party. The defendant, Baldwin, did that in his second amended original answer, after having tried the case one time in the district court and appealed same to the Court of Civil Appeals. The court did not pass upon appellant’s prayer to have the plaintiff make Moore a party to the suit, which defendant asked to have done in his first amended answer before the appeal. On the second trial, the defendant, Baldwin, filed an amended answer, in which he admitted the execution of the note, and for various reasons set up failure of consideration, and asked that Tom Moore be made a party, and especially to cancel the deed executed by Drew, plaintiff, to Baldwin, and also sued to recover the $200 cash payment that Baldwin had made, and 6 per cent, interest on same from the date of the deed, February 12, 1910. Defendant also sued in reconvention for $1,195.55 for back-taxes. Defendant’s answer concluded as follows:

“In the event this court should, for any reason, hold that this defendant is not entitled to the relief above prayed for, then he prays judgment against the defendants, Tom Moore and Tom M. Drew for the land mentioned and described in the plaintiff’s petition, and fully described in Exhibit ‘A’ attached thereto. And that all the right, title, and interest that said Tom Moore has to the said land, if any, be decreed to this defendant, subject only to such liens, if any, that might be found to exist against the same by reason of plaintiff’s suit herein.”

He prayed for such other relief, in law and equity, to which he might be entitled. After the defendant had filed his second amended original answer, which was filed the 24th day of May, 1916, and after the defendant had made a motion to continue on the ground that' Tom Moore had not been served ten days, and when the case was called for trial on June 1, 1916, the plaintiff waived,, in open court, and withdrew that portion of his pleading that sought a foreclosure on the 1,549 acres of land, and sought a personal judgment alone against the defendant, Baldwin. The defendant, Baldwin, did not in any manner or form withdraw any of his cross-action, pleas in reconvention, or prayer to have the deed canceled. Upon the court’s charge, the jury found a verdict favorable to the plaintiff, on which the court rendered judgment on June 1, 1916. The charge of the court, which was upon special issues, was as follows:

“Gentlemen of the Jury: This case will be submitted to you on special issues, by which is meant that I will hereinafter propound to you certain questions which you will answer as you may find from the evidence, as may be hereinafter indicated. A separate piece of paper will be furnished you on which to write your answers as may be indicated, and a place for your foreman to sign; this you will return into court as your verdict in this case.
“Question No. 1: Did Tom Drew intend to convey and J. O. Baldwin' to acquire by said deed dated February 12, 1910, only such title as Drew might have in the land or the mere hazard of chance of title? (Answer Yes or No.)
“Question No. 2: Was it understood and agreed by and between the plaintiff and the defendant, at the time of the execution and delivery of the deed and note, that the defendant, Baldwin, was to assume the payment of the taxes due against the land mentioned and described in said deed? (Answer Yes or No.)
“The burden of proof in this case is upon the plaintiff, Tom Drew, to establish the affirmative of the questions above propounded.
“By the term ‘preponderance of the evidence’ is meant the greater. weight of credible testimony.
“You are the sole and exclusive judges of the facts provided, the credibility of the witnesses, and the weight to be given to their testimony.”

The first assignment of error is as follows:

“This being a suit on a promissory note for $300 and for 6 per cent, interest and 10 per cent, attorney’s fees, the .amount claimed was not within the jurisdiction of the district court. Only the allegations in plaintiff’s petition seeking to establish and foreclose a vendor’s lien upon the land conveyed give jurisdiction. Plaintiff having voluntarily dismissed that part of his petition, and having expressly waived the same, this left the court without any jurisdiction to hear and determine the case, and the judgment rendered by the trial court is void. The fact that the defendant filed a cross-bill seeking to have the deed and note canceled and seeking a personal judgment against the plaintiff for the sum of $200, together with 6 per cent, interest, did not give the district court jurisdiction to hear any issue in the case; and, upon the plaintiff filing this waiver and the court dismissing Tom Moore as a party to the suit, it left the court without jurisdiction.”

The defendant had filed a cross-action against plaintiff, Drew, for $1,189.55 for taxes, $200 in money that defendant had paid plaintiff, and also a suit tq cancel a deed from Drew to Baldwin, and, having sought a cancellation of the contract as between him and Drew, which was for 1,500 acres of land, and a personal judgment against Drew for $200, and, further, as before said, prayed that in the event the court should find that Drew should recover, he should have a judgment against Drew to satisfy any incum-brance, including the claim of the state of Texas and the county of Liberty for taxes, 'which amount was $1,1S9.55.

It occurs to us that there is no merit in the contention of appellant that the district court had no jurisdiction of the cause, and the first assignment is therefore overruled.

The second assignment of error is as follows:

“The court erred in overruling the ‘plea in abatement’ filed by the defendant, Jacob C. Baldwin, on June 1, 1916. The error of the court in this respect is fully pointed out and reflected by the defendant’s bill of exception No. 1, which is here referred to and made a part hereof.”

There was no error with reference to the mandate from the Court of Civil Appeals, for the reason that the same had been duly returned to the district court of Liberty county, Tex., and recorded and filed, as the law required. The record does not show affirmatively that the lower court had a copy of the opinion of the Court of Civil Appeals. However, it is our opinion that the law does not require the judgment of the Court of Civil Appeals to state in the mandate the reasons for its judgment, nor is it mandatory that a certified copy of the opinion of the Court of Civil Appeals accompany the' mandate. Article 1637, Vernon's Sayles’ Tex. Civ. St. We are of opinion that there is no merit in the assignment, and the same is overruled.

In the third assignment, complaint is made as follows:

“The court erred in overruling the defendant’s motion for continuance for the purpose of perfecting service upon the defendant, Tom Moore, who was made a party defendant herein by the second amended original answer filed by the defendant, Jacob C. Baldwin, and upon whom citation and a copy of said answer had been duly and legally served; and the court erred in this same holding and ruling in holding ‘that Tom Moore is neither a necessary nor a proper party to this suit in view of the plaintiff waiving his lien on the land in open court, and that it is not necessary for him to be made a party hereto in order that the rights of either party hereto might be better protected,’ and the court erred in dismissing from the defendant’s answer the said Tom Moore, and in overruling said motion for continuance. The error of the court in this respect is more fully reflected by the defendant’s motion to continue, and the defendant’s bill of exception taken to the court’s action in overruling said motion for continuance, each of which is referred to for the purpose of more fully explaining this assignment of error.”

Moore was sought to be made* a party by filing an amended answer on the 24th day of May, 1916, when said cause was filed on the 12th day of July, 1912. There is no merit in the assignment, and it is therefore overruled.

The fourth assignment is as follows:

“The court erred in permitting the plaintiff to adduce in evidence the oral testimony of Tom M. Drew, and other like oral testimony, for the purpose of explaining or showing what was the intention of said Tom M. Drew as to whether or not he intended to convey the land described in said deed, or the mere chance of title to defendant, Jacob O. Baldwin, for the reason that said deed is not ambiguous and is not couched in uncertan terms, but the intention of said parties is not admissible for the purpose of varying the terms of said written contract, or of showing another and different intention than that expressed in said instrument. The error of the court in this respect is more fully reflected by the defendant’s bill of exceptions taken at the time to the action of the court in admitting said testimony, and for the purpose of better explaining this assignment of error, reference is made to said bill of exceptions.”

This case has been before this court before, and is reported in 180 S. W. p. 614. It was held in said decision that the deed from Drew to Baldwin, upon its face, was ambiguous enough to admit evidence for the purpose of showing it was a quitclaim deed, and certainly the testimony about whlc-h appellant complains under this assignment was admissible on this issue, which said issue was specifically submitted to the jury in the court’s charge. A careful examination of the assignment convinces us there is no merit in same, and therefore it is overruled.

By the fifth assignment of error, complaint is made as follows:

“The court erred in admitting in evidence the evidence of Tom M. Drew, to the effect, in substance, that Tom Moore executed to him the deed to the land in controversy in 1905; that said Tom Moore was then a person of sound mind; that he was confined in an insane asylum at Terrell on account of being a habitual drunkard, and that at that time he was rational and fully understood the contents of the deed which he executed to said Tom M. Drew; and that the physicians at Terrell gave him a certificate to this effect. The error of the court in this respect is reflected from the objections made to said testimony, and which testimony contradicted the record of conviction of lunacy by a court of competent jurisdiction and a judgment of a court of competent jurisdiction appointing a guardian for said Moore; such oral testimony was not admissible.”

It seems that said evidence was admissible to show, as a matter of fact, that Tom Mooi’e was not insane at the time he executed the deed to Tom Drew, and with reference to the letters of John S. Turner and T. J. Haizlip, the plaintiff testified that he had delivered these letters to the defendant, Baldwin, before the deed was made from him to Baldwin, .and that Baldwin had read and seen said letters.' We think it was also admissible as a circumstance to show that the deed from Drew to Baldwin was a quitclaim deed, because he (Baldwin) knew the condition of the party who conveyed the land to Drew, and knew tide claim of insanity which defendant now asserts. Tlie said assignment is therefore overruled.

The sixth assignment of error is as follows:

“The court erred in admitting in evidence the letters and ex parte statements of John S. Turner and T. J. Haizlip for the purpose of showing that at the time Moore executed the deed to Tom M. Drew that said Tom Moore was in mental condition to know the nature of any document that he might have signed on that occasion (meaning that he had sufficient mental capacity to know the contents of the deed from Tom Moore to Tom M. Drew) over the objections of the defendant, which .objections were, in substance: (a) That said testimony was ex parte unsworn statements of said Turner and Haizlip, and was not admissible for any purpose ; (b) that said testimony was hearsay.”

As before said, we are of opinion, that the admission of these letters was a circumstance to show that the deed from Drew to Baldwin was a quitclaim deed, and to show that Baldwin knew the condition of the party who conveyed the land to Drew, and knew the claim of insanity, as above stated, and, besides, the court instructed the jury not to consider the letters but for one purpose, as follows:

“The letters will be admitted in evidence before you for such bearing, if any, it may have on the character ot the transaction between Baldwin and Drew at the time of the execution of the deed. If you find as a fact that Judge Baldwin had never seen this letter prior to that time, you will not consider it for any purpose.”

Under the circumstances, we believe there was no error in this action of the court, and the assignment is overruled.

The seventh assignment of error is:

“The court erred in excluding from the jury the letter from Tom Moore to the defendant, Jacob 0. Baldwin, dated August 26, 1912, which was offered in evidence by the defendant for the purpose of showing that he had written notice, from Tom Moore that he (Moore) was claiming an interest in the land in controversy, and for the purpose of further showing, in connection with the testimony of said Baldwin, that he had notice from said Moore that Moore was claiming the land in controversy and objected to this defendant paying Drew the remainder of the unpaid purchase money for said land.”

Moore was not a party to the suit, and the record reflects that the testimony excluded was hearsay. The issue appeared to be before the jury whether Baldwin accepted a quitclaim deed or chance of title, and the letter was written after the deed from Drew to Baldwin was executed. What has been said here applies to the eighth assignment of error. Both of said assignments are overruled.

The ninth assignment of error is as follows:

“The court erred in his general charge to the jury, wherein he submitted to the jury the following question, to wit:
“Question No. 1: Did Tom Drew intend to convey and J. 0. Baldwin to acquire by said deed dated February 12, 1930, only such title as Drew might have, in the'land, or the mere hazard or chance of title? (Answer.yes or no.)”

The cause having been heretofore on appeal to this court, and the deed having been interpreted by this court, and this court having held that evidence was admissible to show whether or not it was a quitclaim deed, it seems that the -trial court was following said opinion of this court heretofore rendered, and was submitting to the jury, in concrete form, the legal questions heretofore before this court in the matter of said former appeal, the question being squarely submitted to the jury, and it being left to their consideration to say what was the intent of Baldwin and what was the intent of Drew with reference to whether the conveyance was a title or a chance of title. Therefore, in our opinion, there is no merit in this assignment, and the same is overruled.

By the tenth assignment of error, the action of the trial court is challenged as being error in refusing to give to the jury defendant’s special charge No. 1, which is as follows:

“The deed from Tom M. Drew to Jacob C. Baldwin is sufficient on its face to show that it was the intention of Drew to convey to Baldwin the land therein described, and not the chance of title.”

The law, as formerly decided on the first appeal, is in conflict 'with the appellant’s contention under this assignment.

The eleventh assignment of error challenges the action of the court as being error in refusing to give to the jury special issue No. 4, which was as follows:

“In determining what was the intention of the parties, you must arrive at that intention from the instrument or deed itself when considered as a whole, and you cannot consider, any oral evidence admitted in this case in arriving at your conclusion on this point.”

We think our holding on this proposition during the former appeal was correct, and, the same being contrary to the contention of appellant under this assignment, the same is overruled.

By the twelfth assignment of error, complaint is made that the court erred in submitting to the jury question No. 2, which was as follows:

“Was it understood and agreed by and between the plaintiff and the defendant at the time of the execution and delivery of the deed and note that the defendant Baldwin was to assume the payment of the taxes due against the land mentioned and described in said deed.”

The pleadings in this case authorized the court to determine whether or not the defendant, Baldwin, was bound to pay back taxes, and the defendant, Baldwin, claimed that he was not to pay them, and did not buy a quitclaim title, and that under the deed to him from Drew, there would be an obligation on Drew to pay the said taxes. It was right and proper to find out who was to pay the back taxes, as between Baldwin and Drew; so that, if it had been found by the verdict that the .deed to Baldwin was not a quitclaim deed, who, then, was to pay the back taxes? There was sufficient testi-many to authorize the submission of this issue. There was no error in the action of the' court on this matter, and the assignment is overruled.

By the thirteenth assignment of error, complaint is made that the court erred in refusing to submit to the jury defendant’s special issue No. 3, which is as follows:

“Did, or did not, the defendant, Jacob 0. Baldwin, know at the time he purchased the land from Tom M. Drew that Tom Moore was insane, and incarcerated in the insane asylum .at Terrell, Tex., and was so incarcerated on the 10th day of May, 1905, the date of his deed to Tom M. Drew?”

In our opinion, there was no error in the court refusing to give the reguested charge. The whole issue in the case was: Was it a quitclaim deed or not that Drew made to Baldwin? And if it ..was a quitclaim deed, did Drew or Baldwin have to pay the taxes? The assignment is therefore ■overruled.

It is charged in the fourteenth assignment of error that the court erred in refusing to give to the jury special issue No. 5, which is as follows:

“What was the amount of unpaid taxes due against the land on the 12th of February, 1910, when Tom M. Drew conveyed the same to Jacob O. Baldwin? You will answer this question by stating the amount of taxes, if any, due and unpaid against the land up to the 1st of January, 1910. The error of the court in this respect is more fully reflected by the defendant’s bill of exceptions to the court’s refusal to give special charge No. 5, which is referred to and made a part hereof.”

If it had become necessary for the court to find the amount of taxes, the same could have been mathematically ascertained. The assignment is therefore overruled.

The fifteenth assignment complains that the court erred in entering judgment for the plaintiff on the verdict of the jury, for the reasons set forth and fully stated in defendant’s bill of exceptions, “to the court entering judgment for the plaintiff on the verdict of the jury,” which is here referred to and made a part hereof.

Objection is made to the consideration of this assignment, because it is too general, and, in our opinion, the objection is well taken, and this conclusion is abundantly fortified by the decisions of the courts of this state. The assignment is overruled.

The sixteenth assignment is as follows:

“The court erred in permitting the plaintiff’s counsel, Dan Harrison, to make and use in his argument before the jury the unjustifiable and unwarranted remarks made by him, to make use of indecent, profane, and vulgar language while arguing the case to the jury, which indecent, profane, and vulgar language was calculated to cause the jury to reach an erroneous conclusion on the issues submitted to them. Especially did the court err in permitting said counsel to tell the jury that by answering the questions yes they would be finding a verdict for Tom. M. Drew; and, while the court requested the counsel to cease from making use of such argument, and orally directed the jury not to consider the part of said ai-gument which told them what would be the result of or effect of their verdict if they answered the questions yes, yet this did not, and could not, remove from the minds of the jury the poison that had been shot into them by this character of argument, and this defendant now prays this honorable court to set aside the verdict of the jury and the judgment entered thereon on account of the argument of said counsel, which said argument is not supported or justified from the record, and is set out in full in this defendant’s bill of exceptions taken at the time, which is here referred to and made a part hereof. The court having refused to grant this motion for new trial, the defendant then and there excepted to this action of the court, and assigns this action of the court as error.”

■ The bill of exception in reference to this matter is as follows:

“Be it remembered: That on the trial of the above entitled and numbered cause that Messrs. Marshall & Harrison, a firm of lawyers of Liberty, Tex., represented the plaintiffs. That D. J. Harrison, one member of said firm, the district attorney of said judicial district, was a gentleman well known to the jurors of Liberty county, a good mixer and a man well known as being a forcible speaker and of considerable influence with the jurors. That after the testimony had been closed and after the argument for the defendant, said D. J. Harrison came to address tire jury. Thereupon the defendant requested the court to have the stenographer to report Ms speech, as the defendant desired to except to all improper argument and to all argument that was not confined to the record. That thereupon the court stated to counsel that he would permit the speech to be reported, but that he would not permit the defendant or his counsel to interrupt the speaker by making objections to his speech during' the progress of the same, but that the defendant could have a bill of exceptions covering the speech as a whole, as being improper and objectionable, and one calculated to have undue influence upon the jury, and also covering each particular part of said speech, or all such parts thereof as the defendant might desire to except to, and that the defendant could prepare his bill of exceptions and set forth these facts in his bill so that the reasons for not making special objections and exceptions to such parts of said speech, if any, at the time the same was made, might be fully reflected. With this understanding, and- with this admonition from, the court to the defendant’s counsel, the said D. J. Harrison proceeded to address the jui'y as follows:
“Speech of D. J. Harrison to the Jury.
“Being as my speech is going to be taken down, I don’t know whether it will be published in any of the daily newspapers or not, but he seems to be very anxious to get hold of one of my speeches and Marshall’s, and I feel very much gratified that he has taken this opportunity of getting my speech, and I hope he will preserve it and file it away in the files of his office and some day he can go back and look at the speech and see what a great mistake he made by coming over to Liberty county and undertaking to put any such ‘bull’ over the jurors of this county.
“As I' said, the judge is suffering with a severe case of the bellyache from this deal he pulled off in 1912, and it wouldn’t surprise me if be don’t have to be operated on before this thing is through. I don’t- believe in the history of all my experience of the last 8 or 10 years in practicing law that I ever saw a fellow that hated to give up as bad as the judge does in this ease. He has belly-ached and talked to this jury about what trash and tommyrot we have introduced here, trying to make this jury believe that at the time they had this agreement over there, .and he bought tMs land that Tom Drew was undertaking to sell Mm that land— that it was the title he was undertaking to put into him, and that he was trying to convey him the 1,579 acres of land; in other words he wants this jury to believe that Tom Drew was warranting that title to him. This jury knows better. He is trying to make this jury believe and expects at your hands a verdict that would say Tom Drew had for $500 warranted a piece of land to him and assumed the taxes of $1,100. Look at Tom Drew; he don’t look like a damn fool, and I don’t believe he is, and I have known him for 15 or 16 years. The idea of trying to poke down this jury’s throat a proposition of that kind; that Tom Drew would for $500 sell him 1,579 acres of land with $1,100 worth of taxes that he says was against it. If that is true, Tom Drew ought to be in the asylum instead of Tom Moore. You know that isn’t so; that is all poppycock.
“There are only two questions for you to answer in this case and it is very easy to determine the facts. The first is, Did Tom Drew, according to this charge, intend to convey, and did Baldwin intend to acquire, by said deed dated February 12, 1912, only such title as Drew might have hqd? That is the only proposition. Did Tom Drew only intend to sell his claim on this land? Did Tom Drew only intend to sell him that which he had — what his rights were? That is the only question, and you know that is all Tom Drew intended to do, because do you think he would he fool enough to sell 1,579 acres of Liberty county land for $500? A little common horse sense is all a fellow needs to look at that proposition. That is one proposition, and the other is, >Vas it understood and agreed by and between the plaintiff and defendant at the time of the execution of the deed that the defendant was to assume the payment of the taxes due against the land ? I am almost ashamed to argue that to the jury. I believe it is a reflection against the jury’s intelligence to think a man that looks like Tom Drew wouldn’t have any more sense than to take $500 for a piece of land and agree to pay. $1,100 taxes against it. He would be some business man if he would do a trick of that kind. It is unbelievable, and I can’t see how Judge Baldwin, with all his nerve, has got gall enough to believe any such stuff as that. I-Ie must think this jury hasn’t got any horse sense; he must think there is no intelligence in this county; that you couldn’t see a proposition of that kind.
“I am talking about those two questions, from the testimony in this ease, Did Tom Drew intend to sell this land or his claim only? He says he did, and here is the letter he wrote the judge before he ever pulled the deal off when the judge was trying to get a power of attorney, and he introduced it; we didn’t introduce it, but we had no objection: ‘Replying to your previous letter concerning the Moore land will say I prefer to sell rather than give a power of attorney, and should you see your way clear to buy same make me your proposition for my claim.’ My what? My claim. What do you think Tom Drew meant tó do? Baldwin got that letter from him. Make me a proposition for my claim, and afterwards Drew was down there and made him a proposition and first asked him $2,000, and finally sold it for $500, 1,579 acres of land, 30 cents an acre. Ain’t you ashamed of yourself, Judge, to come back up here and raise all this row about that $300 note; you ought to be ashamed of yourself; if I was shooting craps I would have shot them right. Go into this crap-shooting land game, gentlemen, then back up. after the fellow won his money and say, ‘Give me my money back, I aint going to pay this crap-shooting debt of $300 I owe.’ I’ll be dumed if I ever made a horse trade and rued back, and if I lost $300 playing poker, I would pay it like I owed a man for that much groceries. Tom Drew said, T will take $500 for my claim,’ and Tom Drew said in this deed ‘bargain, sell, convey and quitclaim.’ It is in there, ‘bargain, sell and quitclaim,’ and the judge says that is no quitclaim deed. And it goes further, and says he warrants ‘by, through and under me,’ meaning only such title as he had. Do you believe Tom Drew intended to sell him that land and guarantee that title, ox anything of that kind? Of course you do not, because there is nobody in the world that big a fool to sell that much land with $1,-100 worth of taxes, for $500.
. “Now what the judge said about Drew’s testimony : We have got another man up there, a disinterested party; has notMng to do with, this; no interest any way in the world; county judge of Polk county 4- years; and he says the judge said he was shooting craps when he bought it. What about him, Judge? He was there and heard the conversation when Tom Drew refused to take this man’s check for the- payment of the $200, but said you have got to get the money and put it in my hands. While the stenographer was out trying to get the $200, they walked in, and the judge said in this man Rowe’s presence, who was a disinterested person, T sometimes shoot craps and play at games of chance and I may lose, but I have bought this stuff and I am not much out and I may win something.’ Has Rowe lied too? What interest has he got? That shows beyond any question of doubt that at the time this deal was made that Drew only intended to convey what interest he had; in other words, the hazard of title. If he had the least bit of title there, Baldwin was to get it; and if he had much of a title, Baldwin was to get it: and if he didn’t have anything, Baldwin got it. That is the intention of the parties. Not only that, but the note shows that. •
“Then the judge said he didn’t even know that fellow was crazy, and it wasMt ten minutes until he said he knew he had been crazy — just whipped right over and got on the other side of the fence. ‘It is further expressly understood that the land herein conveyed has adverse claim against it, and that in the event said claim should be compromised or settled’ — you know the judge knew there were claims against it. Tom Drew says he knew that his man was in the insane asylum, and says that Baldwin is the man that told him to get this instrument here from the authorities at Terrell, showing that this man Moore knew what he was doing at the time he deeded him the property while he was in the insane asylum. Baldwin knew it, and in his letter when he is writing up there to him wanting to get a power of attorney to clear it up Baldwin told him to get something to show that this man knew what he was doing when he executed this deed to him, and then he comes back down here and says he didn’t know — didn’t know that this man had been in the asylum, and then in a few minutes says he knew he had been, but thought he had got out. ‘ * * * in the event said claim should be compromised or settled or I should sell said land prior to the maturity of this note, then and in that event this should become due and payable at once.’ That shows adverse claims there, and that Baldwin knew it. He was put on notice of it, and I want to tell you something else, even if he wasn’t put on notice of it. If a fellow come up here on the street and had about a 16-hand horse, good fox trotter and clean-limbed, come fox trotting up there and wanted to sell you the horse for $10, what would you think about Ms title to it? Every dum one of you would say, ‘I don’t believe I want him.’ When this man sold this title for $500, 1,579 acres in this county, you can’t tell me, Judge, that you didn’t know he didn’t have a good title to it, and you can’t tell me, nor you can’t make this jury believe, I don’t think, but what you knew you were only buying such claim as Tom Drew had, just like Tom Drew said in this letter to you, which you introduced in this case as evidence. You can’t poke it down me. Then if Tom Drew only sold such title as he had, and Baldwin only bought Tom Drew’s claim, then answer Question No. 1, Yes. Tom Drew is the plaintiff in this case, and Tom Drew is entitled, I say, at your hands, gentlemen, he is entitled to have this jury say that he only sold to Baldwin such tide as he had, and his hazard of title, and that Baldwin only bought such title as he had, and he is entitled to have you answer question No. 1, Yes, and when you have answered question No. 1, Yes, the plaintiff in this case has won.
“By the Court: Don’t consider the statement Df counsel as to the effect of your answer to the question, gentlemen.
“By Judge Baldwin: The statement can’t he withdrawn.
“By Mr. Harrison: I make this argument in answer to your proposition, when you said to this jury that it was their duty to answer that question, No. I want that to be incorporated in the bill of exception. There is no question about this case — there should be no question about it, absolutely none, because there is no question but what Drew sold his daim. There is no question but what his intention was to quitclaim and sell what title he had, and what interest he had, and there is no question but what Baldwin knew it at the time when he bought it, and it was the intention of the parties that he was to only acquire such title as Tom Drew had, and there is no question in the world but what Baldwin was to pay those taxes, because I say that is a reflection on any juiy’s intelligence to say a man that looks like Tom Drew wouldn’t have any more sense than to sell that piece of land for $500 and then pay $1,100 worth of taxes, and in answer to Judge Baldwin’s speech to this jury, when he said it was the duty of this' jury to answer those questions, No, I say it is the duty of the jury to answer those questions, Yes. X repeat that because I believe the facts in this case warrant it. And in Tom Drew’s testimony he tells you that they had this conversation, that they had talked time and again, talked to Baldwin, and discussed it with him a number of times befoi’e he made the deed, and on the day the deed was made that it was discussed — all those things were — and went on to say that Baldwin mentioned the fact that he would have to pay the back taxes. Rowe was there and heard it and said Baldwin said he was taking a chance, and X say to this jury that I believe it will not take you long to unravel this case. I believe you can see the true facts and the truth in this case, and when you have done that, I believe you will answer both those questions, Yes. And I thank-you for your attention.”
“Be it further remembered that the objections made to said speech and the exceptions reserved to the same were as sot forth on the first page of this bill of exceptions.
“Second. That the speech as a whole is an improper one, and one that was calculated to have undue influence on the jury and cause them to reach an erroneous conclusion on the issues of fact submitted to them by the court, it being profane in character, abusive toward the defendant, bordering on vulgarity, and highly improper and unjustified from the evidence in the case.
“Third. The defendant specially excepted to that part of said speech which l'eads as follows: ‘You can’t polco it down me. * * * I say Tom Drew is the plaintiff in this case, and he is entitled to have this jury say that he only sold to Baldwin such title as he had, and his hazard of title, and that Baldwin only bought such title as he had, and he is entitled to have you answer question No. 1, Yes, and when you have answered question No. 1, Yes, the plaintiff in this case has won. * * * There is no question in the world but that Baldwin was to pay these taxes, because I say that it is a reflection on this jury’s ■ intelligence to say that a man who looks like Tom Drew wouldn’t .have any more sense than to sell that piece of land for $500 and then pay $1,100 worth of taxes.’ ‘I say, it is the duty of the jury to answer these questions, Yes.’ When this argument was made and the defendant objected to the same as being improper, the court then and there admonished the speaker, D. J. Harrison, and told the jury not to ‘consider the statement of counsel as to the effect of your answer to the question’; the defendant insisted that the poison put into the mind of the jury by this character of speech should not be removed by any oral charge coming from the court, and that the speech as a whole was improper.”

This bill of exception is qualified as follows:

“I, J. Llewellyn, judge of the district court of Liberty county, before whom the above case was tried, have had presented to. me the above bill of exceptions with reference to the speech of D. J. Harrison after it had been presented to plaintiff’s counsel who refused to approve the same; and, after examining the same, I find it to be correct, and I hereby approve the same as a correct bill of exceptions with reference to said matters, and order that it be filed as a part of the record in said cause, with the following qualifications: I did not deny defendant the right to interrupt the speaker. My recollection is that the speech was reported at Judge Baldwin’s request as a matter of convenience in excepting thereto; the understanding was that the entire speech was to be regarded or excepted to without the necessity of interrupting the speaker for that purpose. I am inclined to think that Mr. Harrison is a good mixer, a forcible speaker of influence as stated, but decline to officially O. K. him in those particulars.
“J. Llewellyn, Judge.”

It is certainly a novel proceeding, perhaps the first of the kind that has been called to the attention of this court, that counsel takes exception to the speech of a man before the same has been uttered, being convinced, possibly, at the outset, that some improper language might be interpolated in the said speech. However, we have examined carefully the aforesaid speech of Mr. Harrison, together with all the inferences thereof, and we are of the conclusion that the said speech, in view of the fact that the conclusion reached by the jury is amply supported by the record, and in view of the further fact that the court admonished, counsel and instructed the jury that they should not consider the language of the speaker, and in view of the further fact that ek» injury is shown to have resulted by reason of the preponderance of the testimony being in favor of the verdict as announced by the jury, we do not believe that the judgment of the trial court should be reversed upon this ground alone. We are not prepared to say that the bill of exception was taken at the proper time. It occurs to us that the practice of excepting to a man’s speech before the same has been uttered, or presuming that something will be said that should not be and would he improper, is going rather far, and that the proper practice should be to not presume in advance that something would be said, but to wait until the words are uttered, and at that time, which is the proper time, call the court’s attention to the language used, and request that the court act with ref- • erenee thereto in withdrawing it from the jury. However, no such injury has resulted, as said before, as would permit this court to reverse this case on account alone of the language used. Therefore the assignment is overruled.

We are of" opinion that the appellant has> had a fair and impartial trial, that the issues submitted to the jury for their consideration ■were such issues as should have been submitted, and were decisive of the case; that upon the verdict of the jury a judgment should have been entered as was entered by the court. As said before, this is the second appeal of the case, and really the issues had been decided heretofore, that is, the opinion of this court upon the matters had been ascertained, and its views were followed by the lower court in the trial of this case.

Finding no error in the action of the lower court such as should reverse the case, we are therefore of opinion that the same should be in all things affirmed. It is so ordered.
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author: SWEARINGEN, J.

text:
    KEMPEN et al. v. BRUNS, Mayor.
    (No. 5889.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.)
    1. Elections <&wkey;83 — Qualification of Voters — Evidence.
    Although the Constitution provides that at elections to determine expenditure of money or assumption of debt by towns and cities only taxpayers can vote, since a taxpayer is defined as a property owner, it is not essential that the property tax be actually paid, nor is the assessment roll the only evidence of the fact of payment.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81.]
    2. Elections <&wkey;227(l)— Validity — Denial of Right to Vote.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 8063, providing what elections shall be declared void, if election officials erroneously require proof that a voter has actually paid his taxes and such ruling materially affects the result, the election must be declared void.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197, 198.]
    3. Elections <©=291 — Contests—Burden of Proof.
    The burden of proof is upon an election contestant to show that the result was materially affected by an erroneous ruling of election officers.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 286.]
    4. Elections <&wkey;298(l) — Contests—Scope of Inquiry.
    In determining whether erroneous ruling of judges materially affected result of an election, the court will consider the evidence of how a voter, denied the privilege of casting his ballot, would have voted had he been permitted.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 303, 305.]
    5. Elections <s&wkey;227(l) — Contests—Material Change.
    Refusal to permit a qualified elector to vote, when he would have voted for a proposition. which carried, does not materially affect the result of the election.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197, 198.]
    6. Elections <&wkey;239 — Contests — Counting Votes. '
    Though a qualified voter was told by a private individual that the judges would not let him vote, his vote could not be counted, where he did not go to the polls for the purpose of voting.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 218.]
    7. Elections &wkey;>239 — Contests — Counting Ballots.
    To warrant counting ballot of a qualified voter, denied the privilege of voting, it is not sufficient for him to testify that he thought he would have voted a certain way, but he must testify positively.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 218.]
    8. Elections <@^224 — Contests — Counting Ballots.
    In a city election involving expenditure of funds, where a voter told the judges that he had no taxable property within the city, it was their duty to refuse his ballot, since it was his duty to show that he was qualified.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 193.]
    9. Elections <&wkey;295(l) — Contests — Counting Ballots.
    A mere showing that an unnamed and unidentified negro was refused privilege of voting, without showing that he owned taxable property or resided in the town or how he would have voted, does not show error in the exclusion of his ballot.
    [Ed. Note — For other cases, see Elections, Cent. Dig. § 297.]
    10. Elections &wkey;>227(l) — Contests.
    Where account of all the ballots illegally excluded showed a prevailing majority of four in favor of the proposition as against a previous majority of six, the election was not void on account of illegal ruling.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197, 198.]
    11. Elections <&wkey;228 — Contests — Improper Electioneering.
    In a city election for issuance of bonds, it is not improper electioneering to print upon the notice of election the statement that the city was without funds to build, sewers which the public health required.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 198.]
    12. Elections <&wkey;285(l) — Contests—Pleading.
    In an election contest, a statement of the result of a previous election was irrelevant and properly stricken from the pleading.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 266-268, 275, 276.]
    13. Elections <&wkey;227(l) — Conduct — Hours of Voting.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 786, provides for election of mayor and aldermen. Article 787 requires the polls to be opened at 8 a. m. and closed at 6 p. m. “as to all elections under this title.” Section 605 provides for elections upon municipal bonds, but states no time for opening the polls or closing them. Article 2912 provides that in all elections, general, spe-. cial, or primary, the polls shall be open from 8 a. m. to 7 p. m. Held that, an election at which municipal officers were elected and a bond proposition was voted upon, the bond election was not invalidated by bolding tbe polls open until 7 o’clock; the general statute controlling.
    [Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 197, 19SJ
    14. Elections <&wkey;205—Conduct—Houbs oe Voting.
    Such statutes are directory.
    [Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 182-184,]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Election contest by George J. Kempen and others against Charles Bruns, as Mayor of Seguin. From a judgment for the con-testee, the contestants appeal.
    Affirmed.
    Greenwood & Short, of Seguin, for appellants. P. E. Campbell and Dibrell & Mo-sheim, all of Seguin, for appellee.
   SWEARINGEN, J.

Appellants, Geo. J. Kempen, Theo Koch, and F. Klein, by this suit sought to contest an election for the issuance of bonds for sewers, held in Seguin, Guadalupe county, Tex., July 27, 1916, and which resulted in favor of the issuance of bonds. Judgment was rendered by the court in favor of the contestee and against the contestants.

The allegations of the petition and answer and the facts proven will sufficiently appear in our discussion of the various assignments.

The first assignment is that the judgment is contrary to the evidence for numerous reasons, briefly stated, as follows:

The returns of the election showed a majority of six in favor of the issuance of sewer bonds. Five named voters were prevented from casting their ballots through error of the election officers. Two named voters were prevented from going to the polls by report of the erroneous ruling of the election officers. Two or three unnamed, unidentified negroes were prevented. from voting, through the erroneous ruling of the election officers. Had these nine or ten voters been permitted to cast their ballots, the result of the election would have been materially changed. It is contended that, these facts being true, the judgment should have declared the election void, instead of carried.

The ruling denounced as error by appellants is that the election officers required as evidence of the qualification of a voter that the assessment rolls should show that the voter had paid his property taxes. This rule, variously expressed by different witnesses, seems to have been adhered to by the election officers in several voting places. The ruling that the assessment roll was the only evidence, or that it must be shown that the voter actually paid the property taxes, was error.

The Constitution does provide that only those, otherwise qualified to vote, who pay taxes on property in towns or cities, are qualified to vote in elections to determine the expenditure of money or assumption of debt by said towns and cities. One who pays taxes has been construed to mean a taxpayer, and it has been determined that a taxpayer, in the meaning of the constitutional provision mentioned, is one who owns property in the town or city subject to taxes. Hillsman v. Faison, 23 Tex. Civ. App. 398, 57 S. W. 920. There is no law making the tax records the exclusive evidence that the voter is a taxpayer. Neither is it necessary that the property tax be actually paid.

Did this erroneous taring of the election officers materially affect the result of the election? If so, the election must be declared void. V. R. C. S. art. 3063.

The burden of proof is, of course, upon the contestant to prove every allegation tending to show the material effect upon the result of the election of the error complained of. Garcia v. Cleary, 50 Tex. Civ. App. 465, 110 S. W. 176.

Another rule of law that will be relevant in the discussion of this assignment is that the court will consider the evidence of how a voter, denied the privilege of casting his ballot, would have voted had he been permitted. The reason given for this rule, in the excellent work of McCrary on Elections, is:

“This would be held to be the law upon the well-settled principle that the offer to perform an act which depends for its performance upon the action of another person, who wrongfully refuses to act, is equivalent to its performance.” McCrary on Elections, (4th Ed.) § 137, p. 104.

The Texas Statute, art. 3063, modifies this general reason somewhat, but the rule as previously stated is sustained by the decisions of the Texas appellate courts. Truesdell v. Bryan, 24 Tex. Civ. App. 386, 60 S. W. 61; McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278; Savage v. Umphries, 118 S. W. 909; Savage v. Umphres, 62 Tex. Civ. App. 209, 131 S. W. 291. The opinion by Justice Stephens, in Rathgen v. French, 22 Tex. Civ. App. 439, 55 S. W. 578, is not in conflict with the rule stated, as was made clear by Justice Stephens himself in the opinion in Truesdell v. Bryan, 24 Tex. Civ. App. 386, 60 S. W. 61.

Bearing in mind the foregoing rules of law, we will examine the evidence of unlawful exclusion of qualified voters, to ascertain the material effect, if any, upon the result of the election herein contested.

1. Henry Aubel was a qualified voter and was unlawfully prevented from easting his ballot. The undisputed testimony showed that he would have voted in favor of the proposition to issue the bonds, for which the election returns showed a majority of six had voted. The rejection of this vote cannot, therefore, be considered as- materially changing the result.

2. Eddie Burns did not do all that was required of Mm by the law to have Ms vote counted, for be did not appear at the voting place at all. His excuse was that Nic Williams told him that the election officers would not allow him to vote. This is not a sufficient reason for counting his ballot as voted. Nic Williams was not an election officer.

3. R. B. Heilman testified that he thought he would have voted against the bond issue. This is not sufficient; he should have testified that he would have voted against the bond issue. McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 284. Then, again, Heilman told the election officer he did not have any taxable property in the town of Seguin, upon which testimony they were in duty bound to refuse his offer to vote. It was the voter’s duty to furnish the election officers evidence of his qualification; he failed in this duty. The refusal of Hellman’s vote cannot be considered.

4. Jerry Johnson testified that he would have voted for the bond issue. Hence the refusal to permit him to vote cannot be considered in the determination of this assignment.

5. W. H. Johnson did not do his full duty, in that he did not go to the voting place and offer to vote. His excuse for failure to do so does not justify a consideration of his pretended vote.

6. August Spahn .was a qualified voter and was illegally prevented from voting without fault on his part. He would have voted against the proposition. While this one wrongful act alone will not materially affect the result, yet it must be borne in mind, and if enough others were wrongfully refused the right to vote, who would have voted against the proposition, to overcome or balance the majority for the proposition, the judgment must be reversed.

7. Nic Williams was a qualified voter and was wrongfully denied the right to vote. He would have voted against the proposition. This is the second to be counted in favor of the contestants.

8. The testimony of Le Gette, a presiding judge, reveals the fact that two or three ne-groes were refused the privilege of voting because they owned no taxable property in Seguin. The contestants entirely failed to prove that these two or three negroes were qualified voters. The refusal of their ballots by the officers was not wrongful.

9. One unnamed and unidentified negro, who owned a watch, was refused the privilege of casting his ballot; but it is not shown how he would have voted, nor that he was otherwise qualified to vote. For instance, it does not affirmatively appear that this negro had lived in the town a sufficient time or in the district of the voting place, or that he had paid his poll tax. His rejection cannot be counted as error. Hash v. Ely, 100 S. W. 980.

10. The voters, Miles and Brandenberg, were both disqualified; one for, and one against, the proposition. The rejection of their ballots leaves a majority of votes actually and lawfully cast, six in favor of the proposition.

Deducting the two votes that would have been cast against the proposition, had Spahn and Williams been permitted to exercise their constitutional right, there still remains a majority of four in favor of the proposition; from which it is clear that the unlawful rulings of the election officers did not materially change the result of the election. The Marsden-Troy Case, 189 S. W. 960, has no application to the facts of the present case.

This first assignment is overruled, for the reasons above given, which also require us to overrule the second assignment.

The third assignment presents the proposition that it was improper electioneering to print in the notice of election that portion of the order saying that the city was without funds to build sewers which the public health required and in posting said notices near the polling places. We cannot believe that this was fraud or intimidation, or objectionable electioneering. But, if it were subject to such criticism, contestants have failed to prove that one single voter was influenced thereby.

The third assignment is overruled.

There was no error in the order of the court sustaining the exception of con-testee to contestants’ original petition. The allegation of the result of a previous election was wholly irrelevant and immaterial to the cause on trial. The fourth assignment is overruled.

The fifth assignment alleges that the court erred in striking out paragraph 15 of appellants’ petition upon exception. The said excluded paragraph alleged that the polls were closed at 7 p. m. instead of 6 p. m., and that a number of voters voted for the issuance of bonds after 6 p. m. The said paragraph of the petition does not allege that any voters who would have voted against the proposition were in any way prevented from casting their ballots. It will also be noticed that the complaint is that time was extended an hour, not reduced. Moreover, it is a fair inference from the allegation that all the voting places uniformly remained open with due notice to all voters.

We think that article 787, requiring the polls to be closed at 6 p. m., refers only to the election of the mayor and aldermen, etc., mentioned in article 786. We arrive at that conclusion because article 787 begins with these words: “At all elections under this title.” The title is No. 22. Bond elections are not mentioned in this title .22. Bond elections for cities and towns are provided for by article 605, tit. 18. Under title 18, there is no statute prescribing the hours for opeMng and closing, and none making article 787 applicable to bond elections. Hence, in tlie absence of a special statute, the general statute (article 2912) controls, which reads:

“In all elections, general, special or primary, the polls shall be open from eight o’clock in the morning until seven o’clock in the evening.”

Prom the foregoing construction of the statutory requirement, it is not necessary to discuss the effect of closing an hour later than article 787 required. However, such statutes are directory, and the allegation excluded did not show any such variation from the 'statutory period, nor any circumstances that would materially affect the result of the election, and therein does the present case differ from that of Savage v. Umphries, 118 S. W. 893, decided by Justice Neill; Hash v. Ely, 100 S. W. 980.

The fifth assignment is overruled.

The judgment is affirmed.
      Ér=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: BROOKE, J.

text:
      CLEGG et al. v. TEMPLE LUMBER CO.
    (No. 212.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 18, 1917.
    Rehearing Denied June 6, 1917.)
    1. Action <&wkey;50(3) — Joinder of Causes — Recovery of Property.
    Parties claiming separately segregated parts of a survey cannot join in an action to recover such land.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 514-523.]
    2. Parties <&wkey;14 — Joinber of Plaintiffs— Separate Demands.
    Where all plaintiffs in suit to recover land asked for cancellation of a former judgment against them and for repossession of their respective separate tracts, and one plaintiff also asked damages, there is a misjoinder of parties plaintiff, since they have separate demands and stand in different relations to the defendants.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 13, 16, 17%.]
    3. Parties &wkey;>25 — Joinder of Defendants.
    Whore a petition to recover land sought cancellation of a judgment, recovery of several distinct tracts, and damages against one defendant, there is a misjoinder, of parties defendant, since the cancellation of the judgment is separate from the damage relief sought.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 31, 36-40.]
    4. Appeal and Error <&wkey;>766 — Briefs—Failure to Observe Rules.
    An appellant’s brief, violating ’the rules of the Court of Civil Appeals, will not be considered, except generally, though no objection has been urged against it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126.]
    5. Judges <&wkey;42 — Disqualification — Pecuniary Interest.
    Where a district judge acquired land before suit involving its title was filed, and disposed of it before the case was tried, he had no such immediate and direct interest as disqualified him from trying the case, even if he conveyed his interest by general warranty deed.
    [Ed. Note. — For other eases, see Judges, Cent. Dig. §§ 190-200.]
    6. Appeal and Error (&wkey;991 — Review—Disqualification of Judge.
    Where a district judge, on objection that he was disqualified, determined that he had jurisdiction of an action, the Court of Civil Appeals will not disturb his decision, unless manifest error appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3896-3899, 3912, 3913.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Suit by W. E. Clegg and others against the Temple Lumber Company aud others. Judgment for the named defendant, and plaintiffs appeal.
    Affirmed.
    E. P. Padgett, of Hemphill, for appellants. W. F. Goodrich, of Hemphill, and Minor & Minor, of Beaumont, for appellee.
   BROOKE, J.

The appellants herein, plaintiffs' below, brought suit against the appellee, seeking, among other things, in their last petition, filed August 17, 1916, to recover three several tracts of land iu the Owen PI. Lindsey one-fourth league in Sabine county, Tex., alleging that one W. E. Clegg owns one specific tract of 67% acres; that four other plaintiffs, J. H. and Davis Clegg, Mrs. Minnie Boyett, and Mrs. Beatrice Force, own another specific tract of 67% acres; and that another plaintiff, J. O. Davidson, owns another specific tract of 67% acres. The petition does not show any common interest or privity between the plaintiffs, but, on the contrary, shows there is none such. It will, perhaps, be well to set out the said petition in full, it being as follows:

“(1) Now come the plaintiffs, W. E. Clegg, J. H. Clegg, and J. O. Davidson, who reside in Sabine county, Texas, and Davis Clegg, residing in San Augustine county, Texas, Mrs. Minnie Boyett, surviving widow of John Boyett, deceased, residing in Trinity county, Texas, Mrs. Beatrice Force, joined by her husband, Tom Force, of Sabine parish, state of Louisiana, hereinafter styled plaintiffs, complaining of the Temple Lumber Company, a corporation duly incorporated under and by virtue of the laws of the state of Texas, with John F. Adams as its general manager, and R. E. Hybarger, residing in Sabine county, Texas, upon whom service may be had, H. J. Solly, sheriff of Sabine county, Texas, residing in Sabine county, J. O. Toole, who is the privy of A. T. L. Bobbitt, J. W. Crouch, J. H. Crouch, A. A. Gary, Mrs. Alice Gary, and G. A. Gary, who reside in Sabine county, Texas, W. K. Eddy, D. Z. Eddy, and W. B. Powell, pendente lite purchaser and privy of D. E. Renfro and H. W. Sublett, residing in Jasper county, Texas, and H. W. Sublett, who resides in San Augustine county, Texas, hereinafter called defendants.
“(2) For cause of action plaintiffs allege that on the 12th day of April, A. D. 1905, and for many years prior thereto, and until this date, W. E. Clegg is the true and lawful owner in fee simple, and was, before March 17, 1914, living upon and cultivating yearly 30 acres of the following described land: Being a portion of the O. H. Lindsey one-fourth league of land in Sabine county, Texas, beginning at the southwest comer of said Lindsey headright [then follow the field notes], and containing 67% acres of land. The following portion of said Lindsey headright being the property of and belonging in fee simple to J. H. Clegg, Davis Clegg, W. E. Clegg, Mrs. Minnie Boyett, and Mrs. Beatrice Force, as the surviving heirs of James A. Clegg, deceased, and A. T. Perry, a pendente lite purchaser, to wit: 67% acres described as follows: [Then follow the field notes of that 67% acres.] The following described portion of said Lindsey headlight belongs^in fee simple to J. O. Davidson, being 67% 4aeres: [Describing that 67% acres], the property in fee simple of J. O. Davidson.
“(3) Plaintiffs further represent to the court 'that they each had good and perfect title to their land above described by a chain of title emanating from the state of Texas, by the deeds and heirship as well as by the three, five, and ten year statute of limitation under and by virtue of the laws of the state of Texas.
“(4) Plaintiffs further represent to the court that on the 12th day of April, 1905, W. H. Sublett filed his suit in trespass to try title in the district court of Sabine county, Texas, being No. 1557 on the civil docket of said court, styled ‘W. H. Sublett v. D. E. Renfro et al.,’ the defendants of said cause being D. E. Renfro, W. IC Eddy, and D. Z. Eddy, of Jasper county, Texas, J. O. Toole, A. A. Gary, Alice Gary, James H. Clegg, John H. Clegg, W. E. Clegg, J. W. Crouch, J. H. Crouch, A. T. L. Bobbitt, and J. O. Davidson, of Sabine county, Texas. On April 1, 1907, W. B. Powell purchased, pen-dente lite purchaser, the title of the defendant D. E. Renfro, and thereby became a party defendant, bound by the judgment and liable for costs of suit, although not made a party defendant of record; and on April 27, 1907, W. B. Powell purchased pendente lite the title and interest of the plaintiff H. W. Sublett, and thereby became a pendente lite plaintiff, bound by the judgment and liable for the cost of suit, although not a party of record to said suit — the land sued for and described in cause 1557 being the one-quarter league survey of Owen H. Lindsey, in Sabine county, Texas, and containing one-fourth of a league of land, which is fully described in the petition in cause 1557, to which reference is made. All of the defendants were duly served in cause No. 1557.
“(5) Plaintiffs further represent to the court that each of them were defendants in cause No. 1557, they well knew that W. B. Powell, the presiding judge of said district court was the pendente lite purchaser of the defendant D. E. Renfro in cause No. 1557, and thereby bound by the judgment and liable for the cost of suit, which interest as a matter of law would disqualify him as judge to try said cause, although no party of record therein. They well knew that on the 27th day of April, A. D. 1907, the said W. B. Powell, then presiding judge of said district court, purchased the title and interest of H. W. Sublett, the plaintiff in cause No. 1557, and by said purchase became pendente lite plaintiff, bound by the judgment and liable for the cost in the said cause No. 1557, although the said W. B. Powell was not a party of record in said suit. Although the said W. B. Powell was wholly disqualified to preside as such district judge and try said cause, on the 20th day of September, A. D. 1907, the said W. B. Powell, presiding as judge of said court, in open court called said cau&e 1557, and against the protest, will, and wishes of plaintiffs herein, who were defendants in cause No. 1557, and he, the said W. B. Powell, tried said cause as presiding judge, directing the jury to return their verdict for the plaintiffs, H. W. Sublett and D. E. Renfro, and rendered his judgment for said plaintiffs. A copy of said verdict and judgment is hereto attached and made a part of this petition, in Exhibit A, to which reference is prayed as often as may be necessary, which verdict and judgment the defendants say was and is at this time, and- was ,at the time it was rendered, an- absolute nullity and void upon its face for the purpose, as a matter of law and fact, for the reason that the said W. B. Powell, who presided as judge of said district court in and upon the trial of said cause 1557, was wholly disqualified to preside as such judge in .and upon the trial of said cause, for the following good and legal reasons as a matter of law and fact, to wit:
“First. On the 1st day of April, 1907, while the said W. 'B. Powell was judge-of said district court, by purchasing title of the defendant D. E. Renfro, taking his written deed thereto, he, the said W. B. Powell, became “interested” as pendente lite purchaser defendant, bound by the judgment and liable for the cost, although not a party of record to the suit then pending in said court.
“Second. On April 27, 1907, when said cause 1557 was pending on the civil docket of said district court and the said W. B. Powell was judge of said court, he purchased all of the right, title, and interest of the plaintiff, H. W. Sublett, and thereby became an ‘interested’ plaintiff by his pendente lite purchase, bound by the final judgment, and liable for the cost in said cause 1557, although not a party of record thereto, which interest wholly disqualifies him, the said W. B. Powell, to try said cause, directing the verdict for the plaintiffs, and in his judgment therein as district judge of said court.
“Third. The verdict and judgment above referred to in cause 1557 is an absolute nullity, and void as matter of law and fact, in this: On April 1, 1907, while the said W. B. Powell was then judge of said district, well knowing that said cause would come before him for trial, and that he would try the same, he purchased the undivided half interest of the said Renfro in said quarter league of land and paid him less than $500 for said land, and then and there took Ms (Renfro’s) warranty deed to him (Powell), expressing in the face of said deed the sum of $2,000 as the cash consideration paid therefor, and on or about the 16th day of April, 1907, he (Powell) sold said land purchased from Renfro and conveyed the same by his written warranty deed to Banks Griffith & Son for an actual cash consideration of $2,500, thereby realizing a profit to himself of $2,200.
“Fourth. On the 23d day of April, 1907, while said cause 1557 was pending on the civil docket of said district court of Sabine county, Texas, he, W. B. Po.well, judge thereof, well knew all of the facts connected with said cause and the subject-matter thereof, conspired with the said H. W. Sublett, plaintiff therein, and by said combination and conspiracy, to defraud these plaintiffs, who were defendants in cause No. 1557, they (Powell and Sublett) well knowing that- Powell had purchased Renfro’s interest in said land, the res in said cause, and that he would try said cause as judge of said court, he (Powell) purchased Sublett’s interest, paying $1,800 and taking his quitclaim deed claim of conveyance, and four days thereafter Powell conveyed by his warranty deed the same land to Banks Griffith & Son for $2,000 in actual cash, thereby utilizing a profit to himself of $400 and then in the aggregate of $2,400 a profit to him, the said W. B. Powell, while judge of said court, which ‘interest,’ as above stated, amounted to a legal conclusion, combine, and conspiracy between Powell, Sublett, and Banks Griffith & Son to defraud those plaintiffs, who were defendants in cause No. 1557, and thereby disqualify the said Powell as district judge to try said cause No. 1557, and his judgment rendered therein was an absolute nullity.
“Fifth. As an evidence of said combination, conclusion, and conspiracy, between the said Powell, Sublett, and Renfro to defraud these plaintiffs after Powell had become pendente lite purchaser of Renfro, defendant,, and Sublett, plaintiff, he (Powell), while presiding judge on said cause, stated on his own motion that the title of D. E. Renfro, defendant, would be joined with that of plaintiff, and that plaintiffs would be Sublett and Renfro, and that plaintiffs would rely on both of their titles combined for recovery; he well knowing at the time neither Sublett nor Renfro had any title whatever to the subject-matter of said suit, they having sold to him, that he was a pendente lite purchaser, bound by the judgment and liable for the cost.
“Upon the trial of said cause the said Powell, while presiding judge, held without the slightest proof of the payment of the purchase money by Renfro, that he was a bona fide purchaser as against the title held by defendants in cause 1557, who are plaintiffs in this cause; and when the defendants offered to prove their title by limitation, the said Powell, presiding judge of said court, made the following statement from the bench: T further understand this chain of title and the defendants are co-tenants with Renfro, and no limitation could run in their favor.’ And the above conduct of said W. B. Powell constituted such legal conclusion in spirit and cause against these plaintiffs, who were defendants in cause No. 1557, as to render said judgment a nullity and totally void.
“(6) Plaintiffs, well knowing said judgment was nullity, held their lands herein claimed on September 20, 1907, until on or about March 14, 1914, when the Temple Lumber Company, defendant herein, although it well knew that said judgment was an absolute nullity and vdid upon its face by reason of the facts herein stated, caused a writ of possession to issue, based upon said void judgment, and caused the same to be placed in the hands of H. J. Solly, sheriff of said county of Sabine; and the original petition herein was filed by them on or about the 17th day of March, 1914, praying for the cancellation of said judgment and granting of a permanent injunction and restraining order against the enforcement of the same.
“(7) Plaintiff W. E. Clegg represents to the court that he had cleared and fenced a field containing 30' acres or more of the land described as his property herein, and had the same nearly cleared, with 'an excellent rail fence around the same, which field was in a high state of cultivation and the rental value of said field was $250 per year; that by means and in the manner hereinafter stated and set forth the defendants Temple Lumber Company and H. J. Solly have deprived him of the right to cultivate the said field for three years, the same being the years 1914, 1915, 1916, thereby damaging him in the sum of $250 per year, making an aggregate sum of $750, being the rental value of his said field.
“(8) Plaintiff W, E. Clegg further represents to the court that during the three years, 1914, 1915 and 1916, since he has been dispossessed and deprived of the right to care for the fencing around his said field, the same has been neglected, fell down, washed, and carried away', and destroyed in such a manner that it will take $50 to replace it in as good condition as it was at the time defendants Temple Lumber Company and Solly dispossessed him of it, and said defendants have thereby damaged him in the sum of $50 by their wrongful acts in dispossessing him and neglecting 'and refusing to keep said fence in good repair.
“(9) Plaintiff W. E. Clegg further -represents to the court that during the three years 1914, 1915 and 1916, since he has been deprived of the right to care for his field as above stated, the same has been neglected 'by the defendants Tem-ple Lumber Company and H. J. Solly, so that a large quantity of large bushes and briers have been allowed and permitted by the wrongful acts and negligence of said defendants above last named, so that to clear off said field and put the same into as good tillable condition as it was when he was dispossessed .of it will be worth $100, so that it is these defendants, Temple Lumber Company and H. J. Solly, have injured and damaged this plaintiff $100 in the manner and 'b% the means above stated.
“(10) Plaintiff W. E. Clegg further represents to this court that he is in this case as matter of law and fact entitled to recover exemplary and punitive damages against the defendant Temple Lumber Company in the sum of $10,000, in this to wit: (1) On or about the 1st day of March, 1914, plaintiff was in actual possession of his field, had his fence nicely and neatly repaired around it, and the ground nicely plowed and broken and ready to plant his crops, when the defendant Temple Lumber Company, by its agents, servants, and employes, without the slightest authority of law, attempted to cut down and tear down his said fence from-around his field and dispossess him of the same, by building some kind of wire fence around the same, so as to exclude and prevent him from cultivating his field, which attempt was committed in the most wrongful, fraudulent, and oppressive manner, in this: A large number of agents, servants, and employes of said Temple Lumber Company came to his said field with tools and material, and without any notice or-warning to this plaintiff, they began in the most deliberate manner, to remove his said fence, and they thereby compelling him to desist by said force and attempt. Defendant Temple Lumber Company, then well knowing and being fully advised that the verdict and judgment in cause 1557, styled ‘H. W. Sublett v. D. E. Renfro et al.,’ was a nullity and absolutely void on its face, for the reason and facts set out in this petition, all of which being of record in said deed and other public records of Sabine county, Texas, did apply to the clerk of said district court and maliciously caused a writ of possession to issue, -based upon said void judgment, and placed the same in the hands of H. J. Solly, sheriff, and accompanying him again of the agents, servants, and employés of the Temple Lumber Company, and in the most deliberate and oppressive manner, unlawfully and violently, with a total disregard of the rights of this plaintiff, tore down and removed his said fence, and placed a pretended wire fence around said field, and dispossessed said plaintiff, and in a most dictatorial and vindictive manner forbid his re-entry, and in a manner and by the- malicious and tortious means and acts above and heretofore set forth in this petition said defendant Temple Lumber Company became liable to this plaintiff for exemplary and punitory damages in the sum of $10,000, for which sum plaintiff asks verdict and judgment against the defendants Temple Lumber Company and H. J. Solly, to deter them- from repeating said wrongful acts and as a warning to other wrongdoers.
“(11) Plaintiff herein prays that defendants W. B. Powell, H. W. Sublett, and G. A. Gary be cited to appear and answer herein, all of the other defendants having been cited, for judgment and decree of the court canceling said void judgment in cause 1557, styled ‘H. W. Sublett v. D. E. Renfro et al.,’ that they be repossessed of their lands herein described; that upon the trial of this cause the issue in cause No. 1557, styled ‘H. W. Sublett v. D. E. Renfro et al.,’ be made, and each of said causes be submitted to the jury for their final verdict in both cases, for their costs, and such other and further relief in law and equity as they may be entitled to. Plaintiff W. E. Clegg prays for verdict and the judgment for his actual damage in the sum of $900, as herein stated, and his exemplary and punitory damages in the sum of $10,000, for his costs of suit, and for such other and further relief in law and equity as he may be entitled to,” etc.

The appellee Temple Lumber Company excepted specially to the petition, on the ground of “misjoinder of parties” having no common interest or privity between each other. This special exception No. 1 to the petition was sustained.

All of the plaintiffs pray for the cancellation of a former judgment in the case of Sublett v. Renfro, and each prays for the repossession of their respective several tracts, while the plaintiff W. E. Clegg alone prays for actual and exemplary damages in addition. The defendant Temple Lumber Company excepted especially on the ground of—

“misjoinder of parties plaintiff in said suit, in this: That the plaintiffs stand in different relations to, and have separate demands against, the defendants; there being no mutuality of interest between the plaintiffs in the subject-matter or in the remedy.”

This special exception Ño. 2 was sustained.

The defendant further excepted specially to the petition, on the ground that there is a misjoinder of parties defendant, in this:

“It seeks to cancel the judgment in No. 1557, H. W. Sublett v. D. E. Renfro et al., and to recover several distinct tracts of land, and in addition it seeks to recover damages, actual and exemplary, from the Temple Lumber Company, as to which last cause of action it does not appear from, said petition that there was any common design, purpose, concert, or joint action on the part of the other defendants, but, on the contrary, it clearly appears from the petition that the remedy sought by the plaintiffs in the cancellation of said judgment is distinct from the remedy sought in damages against the defendant Temple Lumber Company, there being no connection between the Temple Lumber Company and the other defendants as to that last cause of action, and for the recovery of damages it appears that the Temple Lumber Company can only be sued in a separate action thereafter.”

This special exception No. 3 was sustained.

The defendant further excepted specially that:

The “petition alleges no facts sufficient either in law or in equity for the cancellation of said judgment in cause No. 1557, entitled ‘H. W. Sublett v. D. E. Renfro et al.’ ”

This special exception .No. 4 was sustained.

The defendant further excepted specially:

“That the plaintiffs’ suit to set aside and cancel the judgment in cause No. 1557, entitled ‘H. W. Sublett v. D. E. Renfro et al.,’ is barred by the statute of limitation of the state of Texas of four years, in this: 'It appears from said petition that said judgment was rendered by this court on September 23, 1907, and plaintiffs’ original petition in this present case was not filed until March 21, 1914, a period of six years after the rendition of said judgment complained of.”

This exception No. 5 was overruled.

There was a further special exception to the effect that the plaintiff W. E. Clegg’s claim for the recovery of rental damages, and for damages to his fencing and for damages to his field are barred by the statute of limitation of two years of the state of Texas. This special exception No. 10 was overruled.

Plaintiffs declined to amend, the respective parties duly excepted, and the plaintiffs appealed. The defendant Temple Lumber Company assigns cross-errors, filed in the lower court, as to the action of the court in overruling their special exceptions Nos. 5 and 10, above set out.

It is claimed by the appellants that the petition was good as against the demurrers, in that it alleged that Judge Powell was disqualified by reason of being an interested party, stating how he was interested, and that the judgment was void by reason of his interest and collusion with the other parties who were plaintiff, and that the plaintiffs in this suit were parties interested in having said judgment set aside, being parties to said judgment, and then stated their interest in having said judgment set aside, by describing the several distinct tracts of land which were covered by said judgment; that they had a meritorious defense in cause 1557, by having a perfect legal title to the land, describing the title; that they were deprived of making the said defense in said cause, by reason of the unlawful act of the disqualified Judge Powell — -and prayed that said judgment be set aside and canceled. They seriously insist that the judgment of the court was erroneous in dismissing plaintiffs’ petition, and that the same should be reversed.

On the other hand, it is contended that the court below did not err in sustaining defendant’s first special exception, for the reason that W. E. Clegg, seeks to recover one specific tract of 67% acres, four other plaintiffs, J. H. Clegg, Davis Clegg, Mrs. Minnie Boyett, and Mrs. Beatrice Force, seek to recover another specific tract-of 67% acres, and another plaintiff, J. O. Davidson, seeks to recover another specific tract of 67% acres — it not appearing that there is any common interest or privity between them as to these separate tracts of land; it appearing that they are several owners of distinct parcels; it further appearing that, though holding each distinct parcels, they seek to maintain a joint action; it also appearing that each of them has a separate demand against the defendants, and that they each claim separately a segregated part of the Owen H. Lindsey survey.

It has long been decided by the courts of this state that, in so far as special exception No. 1 is concerned, the contention of appellee is correct. The following cases hold as much: O’Neal v. Lockhart, 2 Posey, Unrep. Cas. 597; Paschal v. Dangerfield, 37 Tex. 273; Wachsmuth v. Sims, 32 S. W. 821, 823; Stewart v. Gordon, 65 Tex. 344; Curry v. York, 3 Tex. 357, 359; Ford v. Sutherland Land Co., 159 S. W. 876; Sharp v. Johnson, 60 Tex. Civ. App. 176, 127 S. W. 837. Therefore we are of opinion that there is no- merit in this assignment, and the same is in all things overruled.

It may be said, with reference to special exception No. 2, and the other exceptions sustained by the trial court, that the contention of appellee is correct. It is contended by the appellants that the mutuality of the plaintiffs in this suit consists in having the judgment in cause 1557, entitled “H. W. Sublett v. D. E. Renfro et al.,” set aside, and in having said cause tried together with .this cause, and upon the trial of same and upon the pleadings in that cause, if the jury should find that the judgment could Be set aside, then they render verdict for defendants in the cause, who are plaintiffs in this cause, repossessing them of the land claimed.

In this connection it may be said that appellants’ brief is wholly obnoxious to the rules laid down for briefing causes in this court, and, while no objection has been urged as to the consideration of the same, this court will not consider the same, except generally. The petition itself shows by analysis the following allegations of fact upon which the prayer for cancellation of the judgment is based:

The filing of suit No. 1557 on April 12, 1905; due service on all of defendants; the purchase by Judge W. R. Powell on April 1, 1907, from the plaintiff H. W. Sublett of one-half of the survey in suit, and on April 23, 1907, of the other half from the defendant D. E Renfro; the knowledge when the case was tried on September 20, 1907, by the plaintiffs in the present suit, who were defendants in 1557, of the fact that such purchases by Judge Powell, which fact they alleged in the instant suit disqualified him; the trial of said cause 1557, over their protest ; the rendition of a directed verdict for the plaintiffs, defendant Renfro having been made a coplaintiff with Sublett, and a judgment on such verdict; the sale and conveyance by Powell by a written warranty deed on April 6, 1907, of the interest purchased by him from Renfro, and on April 27, 1907, of the interest purchased by him from Sublett, both deeds being to Banks Griffith & Son, and by reason of these facts Powell became a pendente lite purchaser, bound by the judgment and liable for the costs in cause No. 1557; that therefore the judgment in cause No. 1557 wás a nullity.

It is certain from this petition that Powell had no interest in the land when the suit was filed, nor when it was tried. The allegations in the petition of “collusion, combination, and conspiracy between Powell, Sublett, and Banks Griffith & Son to defraud these plaintiffs, who were defendants in cause No. 1557,” and like allegations scattered through the petition, are obviously mere legal conclusions of the pleader, and not allegations of fact. Powell owned no interest in the land involved in suit No. 1557 when it was filed, but acquired the land afterwards, and before the trial had sold the land and severed his connection with it. By reason of the facts as alleged in the petition it is contended that Powell was disqualified to sit as a judge in the trial of said cause. We are not cited to any case in our state that seems'to cover the facts in the instant case, and, whatever might be said as to the propriety or the ethics of the action of Powell in sitting as a judge in said cause, the décisions in cases somewhat similar in character and of sound reason indicate that there is no merit in the contention of appellant.

The case of Nicholson v. Showalter, 83 Tex. 99, 18 S. W. 326, was a case of a failing corporation in the hands of a receiver. The judge had owned stock in it and was an officer. Before the trial he sold his stock and severed his connection with the management. The corporation was also indebted to him, but the debt was paid before the judgment. It was held that the payment of the debt, made for the purpose of removing the disability, would not affect the result. “If it could be admitted that a judge cannot sit iin a suit of another person for debt against a debtor who at the same time was owing the judge, such disqualification would cease to exist upon the payment of the debt to the judge, or when the debt was transferred without recourse.”

In City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068, the Supreme Court held that Chief' Justice Gaines was not disqualified because he was a property owner and taxpayer in Dallas. The court said:

“ ‘The interest which will disqualify a judge must be direct and immediate and not contingent and remote.’ * * * We think the rule may be stated negatively in this form: ‘That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, * * * then he may sit.’ ”

See, also, City of Dallas v. Peacock, 89 Tex. 63, 33 S. W. 220; Kalteyer v. Wipff, 92 Tex. 673, 52 S. W. 63; Ferris v. Streeper, 59 Tex. 312; Winston v. Masterson, 87 Tex. 200, 27 S. W. 768.

It seems that Powell was never a party to cause No. 1557, nor could costs be taxed against one not a party, nor in cause No: 1557 were they so taxed. Powell acquired, the land after suit No. 1557 was filed, as heretofore stated, and, having sold it before that case was tried, we are of opinion that he was not disqualified to try the case, for the reason that, even if it were true, as it was not, that he sold the land with a general warranty deed, he had no such immediate and direct interest in the cause or matter as that the result would necessarily affect him to his personal or pecuniary gain or loss.

The plaintiffs in the instant ease alleged that Judge Powell conveyed the land by warranty deed. However it was not a general warranty, but a special warranty. See Taylor v. Williams, 26 Tex. 583; McFaddin v. Preston, 54 Tex. 403; McInnes v. Wallace, 44 S. W. 537; Heinlen v. Heilbron, 97 Cal. 101, 31 Pac. 838. The judge determined his own jurisdiction in said cause No. 1557, and without manifest error the same would not be disturbed. Childress v. Grim, 57 Tex. 56.

In addition to the above, it is contended that the fact that Powell acted in the trial of the case of cause No. 1557 must be held conclusive that in his own opinion, at least, he was competent to act, and that, in'such a- case, he who ■ would attack the judge’s right to act therein must show his disqualification hy alleging facts of a positive and unequivocal character, for the presumption which attaches to the integrity of an act performed hy a judge under official oath canuot be overcome by inferences or conjecture; hence the allegations in the • petition here that Judge Powell conveyed the land hy “his warranty deed” cannot be construed as equivalent to an allegation that he made the conveyance hy a general warranty deed, for that would he a mere inference and conjecture, and the pleadings of a party must be taken most strongly against the pleader.

We have examined the record carefully, and are of opinion that the suit, as filed by the plaintiffs in the court below, cannot be sustained; that the exceptions were well taken, save and except those with reference to the statute of limitation, and inasmuch as that question is not necessary to he decided in this cause, neither is it necessary to its adjudication, we pretermit a discussion of the said cross-assignments.

Being of the opinion that the action of the court below was correct, and that the plaintiffs were not entitled to recover upon the petition as filed, and that the same was subject to the exceptions sustained hy the lower court, that judgment is in all things affirmed
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